Prakash and Anr vs State of M.P

I.S. Shrivastava, J.—These appeals have been preferred by the appellants being aggrieved by the judgment dated 30/08/2001 passed by the Court of Shri Anil Kumar Shrivastava, 3rd Additional Sessions Judge, Ratlam in S.T. no. 124/2000, by which the appellants have been convicted under sections 302 & 323 of the IPC and sentenced them to undergo life imprisonment with fine of Rs. 500/- each and one year rigorous imprisonment with fine of Rs. 200/- each respectively. According to the prosecution story, on 19/07/2000, Prakash, nephew of Belji had gone to Mahi river for fishing and one fish came in his grip, which was snatched by accused Prakash S/o Badiya and his brother Kailash. Hence there had altercation on this point in between them. On 21/07/2000, when Prakash S/o Gautam went for bath at Mahi river, then accused Prakash and Kailash quarreled and assaulted him. Thereafter, accused Prakash returned to home. At about 4 pm, complainant Belji, his wife Ramibai, his brother Madan were working in the field, at that time, accused Prakash, Kailash and Bodar, from the side of village, came to the house of Gautam. Accused Kailash was having a lathi in the hand. They started beating Gautam and Prakash, hence complainant Belji along with his brother rushed to the house of Gautam and tried to pacify the matter and said that why they were quarreling for one fish. On this, accused Prakash and Bodar, with intention to kill, pelted stones on Belji and his brother. Accused Kailash assaulted by lathi on the head of Belji, which caused him bleeding injury. Thereafter, all the three accused persons chased them and assaulted by stones and wooden rod. They were crying for their safety. Belji being injured fell down on the earth and all the accused persons assaulted Madan by stones and lathi. When he fell down, they continued to assault him. When Hukya, Sohanbai, Torniya and other villagers came to save them, then all the accused persons ran away towards the village. Belji sustained injuries in the head, back side of both the ears, back side of the stomach and the legs. He was brought to hospital by villagers. Madan was lying on the spot in unconscious condition. The accused persons Prakash, Kailash and Bodar assaulted the complainant with intention to kill them. The report of this fact was lodged by Belji, which was registered as Dehati Nalish; on the basis of which, FIR at crime no. 65/2000 u/s 307/34 of the IPC was registered. Madan was found dead, hence offence u/s 302 of the IPC was added to it. After investigation, challan was filed and after trial, the appellants have been convicted and sentenced as mentioned herein above.

It has been argued by the appellants'' counsel that the appellants have been falsely implicated in this case. The FIR was not proved by the evidence. The prosecution witnesses did not support the prosecution case. They have given different story from the FIR, hence their evidence is not reliable. There are serious contradictions and omissions in the prosecution evidence, which has not been appreciated in proper perspective, hence these appeals be allowed.

It has been argued by the respondent''s counsel that the case was proved on the basis of the evidence produced by the prosecution witnesses. The appeals being devoid of merit, be dismissed.

Considered the arguments and record of the trial Court perused.

According to the prosecution case, Dehati Nalish Ex.-P/12 was lodged by complainant Belji PW-3. As regard the FIR, he deposed that he was sleeping at his home and he was informed by small children that Madan has been assaulted by someone at the river. Hence, he went to the spot, where he was also assaulted with stones by someone and he became unconscious. Thereafter, he was brought to hospital by someone. He does not remember that he lodged the report at police station. He has no information about lodging of the information. He does not know that how Dehati Nalishi PW-12 was lodged. He does not know, whether he put thumb impression on it. In this way, he has not confirmed the fact that Dehati Nalishi PW-12 was lodged by him. FIR Ex.-P/13 was registered at crime no. 65/2000 on the basis of Dehti Nalishi report. About it, Harigyansingh PW-12 has deposed that head constable Shri Tiwari brought Dehati Nalishi report to the police station, on the basis of which, he registered FIR Ex.-P/13. In cross-examination, he has admitted that Dehati Nalishi was lodged by Belji, but in it, it has not been mentioned that at which place, it was written. Therefore, on the basis of the above evidence, it was not proved that Dehati Nalishi was lodged by Belji.

Surendranath Tiwari, ASI PW-13 in cross-examination has deposed that he recorded Dehati Nalishi in hospital on personal instruction of Belj, but he did not obtained any certificate from doctor whether he is fit for statement?, but in Dehati Nalishi, he has not mentioned that it was recorded in hospital, where Belji was admitted. Punja PW-1, father of the deceased in his report has deposed that Shankar and Roopji lodged report at police station. In cross-examination, he deposed that Belji was also brought by police to police station with Madan and they remained there for whole of the night. Then it was very natural that report would have been lodged by Belji at police station and there was no need to lodged the report from hospital. Under these circumstances, it was not proved that Belji lodged the report.

As regard the incident, Belji PW-3 turned hostile. According to him, at about 5 pm, he was at his field alongwith his wife Ramibai and brother Madan and Prakash; they were working in the field, at that time, accused Prakash and Kailash came and pelted stones and when he said to them why they were pelting stones, then they continued pelting stones. Stones hit Madan and him also. In cross-examination, he has deposed that he was at his home and was sleeping, at that time, he was informed by small children that Madan has been assaulted by someone at the river, hence he went there. He was also assaulted with stones by someone there. Again he has stated that he was assaulted by someone. Again he has confirmed that he was at his home. He has contradicted his police statement portion A to A, B to B and he deposed that he did not give this information to police station. He has admitted that he does not know anything about the incident and nothing happened before him. In this way, he did not support the prosecution story and gave a new story.

Lalibai PW-2 in this respect has deposed that she was working in his field with her husband and Gautam and Prakash, at that time, stones were being pelted on them. Accused Prakash was saying "this is my land". Thereafter they proceeded from there. Accused Prakash assaulted Madan by stones. Thereafter, they ran away. On the cries of Madan, they started running. Then Kailash pelted stones, which caused injury to Belji. Accused Kailash also assaulted Belji by lathi in the head; due to which, he sustained injuries in the head. In this way, this witness also does not support the fact that accused persons went to the house of Gautam and assaulted Gautam and Prakash there. Thereafter, Belji along with his brother went to the house of Gautam and they tried to pacify the matter and said "why they are quarreling for one fish". Lalibai was confronted from her police statement Ex.-P/1, in which she deposed that she did not give information of the portion A to A, B to B and C to C to police. In this way, this witness does not confirm the prosecution story and gave a new story about the cause of the incident. She has deposed that accused Prakash was saying "this land belongs to him", but this fact has not been mentioned in her police statement.

Ramibai PW-4 give different story. According to her, she was working in her field along with her husband Belji and Madan. At about 4 pm, accused Prakash came and assaulted by stones. One stone hit Madan at the back side of the head; due to which, he fell down. Her husband also sustained injuries by stone. Then Kailash came there and said to kill them and he assaulted Madan by lathi. Improving it, she further deposed that he assaulted Belji by lathi and Bodar said to kill them. When Madan fell down, accused Prakash assaulted him by stone. Thereafter, she ran away from that place. Madan fell down and died. No one came there and thereafter, police came and took Madan and Belji to hospital. In cross-examination, she deposed that in her police statement, Ex.-D/2, she did not give information of the portion A to A to police. In this way, this witness did not confirm the prosecution story.

Prakash PW-5 deposed that at the time of the incident, he was at his field along with his father Gautam and Ramibai, Belji and Madan. Accused Prakash came and pelted stones. When Gautam protested, then he started assaulting Gautam. Thereafter, Belji came and said that why he was assaulting, then he assaulted him by stone and then Bodar said to kill them. Thereafter, accused Prakash came there and assaulted Madan; due to which he sustained injuries in the back side of the head; he fell down. Thereafter, accused Prakash threw big stone; due to which he sustained injury. Accused Kailash came there and assaulted Belji by lathi and they all ran away. In this way, he has not confirmed the prosecution case and gave different story. The fact that he was working in the field with his father Gautam, mother Lalibai, Belji and Madan, at that time, Prakash and Kailash came there and assaulted, has not been mentioned in his police statement Ex.-D/3. All the facts which have been mentioned by him in examination-in-chief are omissions and they have not been recorded in police statement Ex.-D/3. In this way, the statements of all these witnesses are not believable.

Punja PW-1 is the father of deceased Madan. He deposed that when he returned to his village from village Ambapada, he was informed that Madan has been murdered and was lying in the field. Accused Kailash assaulted him by lathi; accused Prakash by stone and faliya. Thereafter, he, Gautam and Belji took Madan to police station and report was lodged by Shankar and Roopji. He was assaulted on a dispute of land. In crossexamination, again he has explained that that time of the incident, he was not on the spot and he gathered the information from the villagers that the incident took place on the dispute of land. Injured Gautam has not been examined hence, it was not proved that he sustained injuries in this incident.

In this way, all the witnesses Punja PW-1, Lalibai PW-2, Belji PW-3, Ramibai PW-4, Prakash PW-5 gave different story from the FIR Ex.-P/13 and they did not support the fact of FIR that Belji, his wife Ramibai, Madan were working at his field and at that time, accused Prakash, Kailash and Bodar went to the house of Gautam and they assaulted Gautam and Prakash. Thereafter, Belji and his brother went to the house of Gautam and gave understanding to accused Prakash and Kailash that why they were assaulting on the dispute of one fish only and thereafter, accused Prakash and Bodar assaulted Belji and his brother. In this way, the prosecution story was not confirmed by any of the witness, but all the witnesses gave a different story. In the case of Ram Narain Poply, Pramod Kumar Manocha, Vinayak Narayan Deosthali and Harshad S. Mehta Vs. Central Bureau of Investigation and Others, , it has been held that "introduction of new story during trial would adversely affect the prosecution case. It does not only create doubt with regard to the part of the prosecution version, but also occasions doubt about the motive, entitling the accused to the benefit of doubt".

It has been argued by the appellants'' counsel that they have been falsely implicated in this case. Land of Punja PW-1 was mortgaged with Badiya who is the father of accused Kailash and Prakash, due to this dispute, they have been falsely implicated in this case. There are stones in Mahi river and if someone fall on the stones, then he can sustain such injury. In cross-examination, Dr. V. S. Ranawat PW-7 has also admitted the fact that the injuries found on the injured person may be caused by fall on the stone or fall of stone on the injured person. He has also admitted the fact that Mahi river flows into the mountains and its area is stony and village - Madhodiya is situated at the bank of this river. Patwari Mangilal PW-8 has also admitted that from the south side of the field of Punja and from east to west, there are stone and Nala. Therefore, this possibility cannot be denied that the injured person sustained injury in the river and Madan died by fall in the river and due to enmity, the appellants have been falsely implicated in this case. It has also been argued that during investigation, no stone was seized by the investigating officer, while immediately after the incident, the police reached the spot and found dead body of Madan from there. Due this enmity, they have been falsely implicated in this case.

Considered the arguments. Dr. V. S. Ranawat, PW-7 has admitted the fact that the injuries caused to Belji, Prakash, Gautam and Madan may be caused by falling on stone or falling of stone on injured persons. He has also continued the fact that village - Madhodiya is situated at the bank of Mahi river and it is the river which flows in between the mountains and whole area of the river is full of stones. Punja PW-1 has admitted in cross-examination that his land is mortgaged for Rs. 2000/- to Badiya and he is not redeeming it. Accused Kailash and Prakash are the son of Badiya. Lalibai PW-2 has also admitted this fact that her father-in-law has kept his land as mortgage to Badiya. Under these circumstances, it cannot be denied that there is suspicion that due to this enmity, the appellants have been falsely implicated in this case, otherwise, there would not have been such type of discrepancies in the evidence of the prosecution witnesses.

On the basis of the above discussion, we are of the conclusion that the prosecution case was not proved on the basis of the evidence of the prosecution witnesses. Dehati Nalishi report Ex.-P/12 was not proved from the statement of Belji. The prosecution story was not supported by the prosecution witnesses. They gave different story about the incident. Prakash PW-5 did not confirm the fact that one day before the date of the incident, he had a dispute with accused Kailash and Prakash on fishing and due to which, he was assaulted on the date of the incident. There were serious contradictions and omissions in the statements of the witnesses which makes them unreliable. No independent evidence was produced to support the prosecution case. It is alleged that deceased Madan was assaulted by stone, but no stones were seized during investigation. Under these circumstances, the appellants were not liable to be convicted, therefore, this appeal deserves to be allowed. On the basis of above discussions, this appeal is allowed and the appellants are acquitted from the charges under sections 302 and 323/34 of the IPC. Appellant Prakash is in jail, hence he be released, if not required in any other offence. Other accused persons are on bail; their bail bonds are discharged. Accordingly, these appeals are disposed of