Parwata and Another vs State of M.P.

R.C. Mishra, J.—This appeal has been preferred against the judgment dated 12th January, 1993 passed by First Additional Sessions Judge, Chhatarpur, in S.T. No. 36/1992, whereby each one of the appellants has been convicted u/s 302 of the IPC and sentenced to undergo life imprisonment.

In all, six persons namely Parwata, Kallu, Kamta, Halke, Rajva @ Rajaram and Bhau (hereinafter referred to as ''Al to A6'') were tried on the charge of murder of one Bitwa. Four of them, viz., A2, A4, A5 and A6 were acquitted and no appeal against their acquittal has been preferred by the State.

The prosecution case may briefly be stated as under:

(i) The relations between Bitwa (since deceased) and A6 were strained in view of the dispute relating to the agricultural land that was pending for decision in the Court of SDO, Laundi. On 21-10-1991, after attending hearing of the case, Bitwa was returning on his bicycle to his native place - Bisna Khera. When he reached the spot situated between Balkora Tiraha (a junction of three paths) and Village Jamra, all the six accused obstructed his way and brutally assaulted him with pharsas, ballams and lathis. Sustaining multiple injuries all over the body, Bitwa fell down. On hearing commotion, Jagbhan (P.W. 12), who was present in the nearby agricultural field, rushed to the spot and challenged the assailants who immediately fled away. At this point of time only, one Chandla-bound bus, driven by Mohammed Sharif (P.W. 3), passed by the scene of occurrence. Jagbhan stopped the bus and with the help of driver and passengers lifted Bitwa from the spot and put him into the bus. The bus was straightway taken to the Police Station at Chandla. During transit, Bitwa narrated the incident to co-passengers including Nand Kishore (P.W. 4) and Wali Mohammed (P.W. 1).

(ii) It was upon the First Information Report (Exh. P-9) lodged by Bitwa that a case under Sections 147,148, 307 read with Section 149 of the IPC and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ''the Act'') was registered against all the six persons named as accused therein. In the same bus, Bitwa was taken to the Primary Health Centre, Chandla where Dr. M.K. Prajapati (P.W. 10) examined him and found as many as 34 injuries, as described in his report (Exh. P-6). He advised radiological examination and referred Bitwa to the District Hospital at Chhatarpur for further treatment. However, Bitwa could not be shifted in view of his deteriorating condition. His dying declaration (Exh. P-4) was recorded by the Executive Magistrate V.P. Rawat (P.W. 8) between 7 p.m. to 7.20 p.m. Thereafter, his police statement (Exh. P-10) was taken down by ASI Laxmi Prasad (P.W. 11). Ultimately, Bitwa succumbed to the injuries at 8.15 p.m. Information of his death was sent to the police station. Accordingly, the case was converted in to one u/s 302 of the IPC.

(iii) After inquest proceedings, dead body of Bitwa forwarded for post-mortem that was performed by Dr. M.K. Prajapati only. He preserved clothes of the deceased for forensic examination. During investigation, ordinary and blood stained soil and bicycle were seized from the place of incident. All the six accused were apprehended and respective weapons were recovered at their instance. All the seized articles including a pharsa recovered from Al and a sang (barchhi) from A3 were sent to the FSL, Sagar alongwith clothes of the deceased for chemical examination but no report pertaining to such an examination could be produced during trial.

(iv) After due investigation, charge-sheet was filed before the Special Court (under Section 14 of the Act presided by the Sessions Judge, Chhatarpur). However, for the reasons recorded in the order dated 17-2-1992, he discharged the accused of the offence punishable u/s 3(1)(x) of the Act and transferred the case to the First Additional Sessions Judge for disposal according to law.

Strangely enough, the learned Trial Judge did not frame any charge under Sections 148 and 302 read with Section 149 of the IPC. All the accused were charged with the offence u/s 302 and in the alternative with the offence punishable u/s 302 read with Section 34 of the IPC. While denying the charges, they pleaded false implication due to enmity. In the examination, u/s 313 of the Code of Criminal Procedure (in short ''the Code''), although A6 admitted existence of dispute concerning agricultural land yet, none of other accused including the appellants raised any specific plea of defence.

To prove the charges, the prosecution examined as many as 13 witnesses including Jagbhan Singh (P.W. 12) as the alleged eye witness to the incident. No evidence was adduced by the defence.

As pointed out already, the case of the prosecution was based on the direct evidence of Jagbhan (P.W. 12) as well as more than one dying declarations made by Bitwa to various persons and authorities. However, none of the alleged assailants was previously known to Jagbhan. Moreover, as per his statement, he was not able to identify any one of the assailants, as they had covered their faces. In such a situation, the learned Trial Judge critically analysed the dying declarations and for the reasons recorded in the impugned judgment found that they were only consistent with regard to complicity of the appellants only. In this view of the matter, holding that identity of the remaining four accused was not established beyond a reasonable doubt, he acquitted them and convicted both the appellants for the offence of murder as indicated hereinabove.

The legality and propriety of the conviction have been assailed on the following grounds:

(i) The admission, made by Jagbhan Singh (P.W. 12) that the faces of the assailants were covered, created a serious doubt regarding their identification by the deceased.

(ii) Since, Santosh Kumar (P.W. 2), the cleaner of the bus, was not declared hostile, the prosecution was bound by his admission that the injured, taken in to the bus from the spot to the police station, was unconscious.

(iii) The nature and number of the injuries sustained by Bitwa were sufficient to indicate that he was not in a position to speak and remain in a fit state of mind at the time when the incident was allegedly narrated to Nand Kishore (P.W. 4) and Wali Mohammed (P.W. 1) and also when the written depositions in the form FIR (Exh. P-9), dying declaration (Exh. P-4) and police statement (Exh. P-10) were recorded.

(iv) When all the dying declarations were not relied upon in respect of the other four accused, the same could not have formed basis of conviction of the appellants.

However, it is not disputed that Bitwa had met with a homicidal death. Autopsy Surgeon Dr. M.K. Prajapati (P.W. 10) has proved relevant contents of the post-mortem report (Exh. P-6). According to him, in all 34 injuries, in the form of three incised wounds, nineteen contusions, seven stab wounds, one lacerated wound, four abrasions, were found on the body of Bitwa. In his opinion, the cause of Bitwa''s death was shock and excessive haemorrhage on account of incised and stab wounds. Incised and stab wounds described as under:

A. Incised wounds:

(1) 1.5" x .4" x .3" on the right frontal region of head bleeding present obliquely placed.

(2) .5" x .1" x .2" on the medial side of right eyebrow. Above to downward bleeding present.

(3) 1.8" x .2" x .3" on the head at middle of both parietal Antro posterior direction, bleeding present.