Ramchandra vs State of M.P.

The challenge in the present appeal is to the judgment passed

by the learned Additional Sessions Judge, Sidhi, on 1.4.2005 in Sessions

Trial No.137/2004 convicting the appellants for an offence under Sections

302 read with Section 149 and Section 148 of I.P.C. and vide separate

order sentencing them to life imprisonment with fine of Rs.300/-.

The prosecution case was set in motion on the statement of

Motilal Yadav PW-1 made to ASI - R. N. Mishra PW-12 on 1.7.2004 at

about 4:30 a.m. The statement is that his cousin Gorelal Yadav has a fish

pond in Kevatan Mohalla. But, some people belonging to Kevat caste

resident of Kukran Mohalla used to steal fish. On 30.6.2004 at about 8:00

p.m. Gorelal went towards the pond to safeguard fish. In the meantime,

Gorelal raised alarm that he is being beaten by the people belonging to

Kevat caste. On hearing the alarm raised by Gorelal, he alongwith his

family members such as Munna Yadav, Bhole Yadav, Bhai Lal, Bhaiya Lal

Yadav reached to the place of occurrence, where they saw Ram Sumiran

Kevat, Ram Karan Kevat, Motilal Kevat, Ramcharan Kevat, Munna Lala

Kevat and Rampal Kevat were giving beatings with Lathi''s, Danda and

Ballam to Gorelal. They were abusing him and saying that the pond is not

yours exclusively. When Munna Yadav and Bhola Yadav intervened, they

were also given beatings. Gorelal Yadav was given Ballam blow by

Ramkaran Kevat, whereas Ram Sumiran Kevat had given Danda blow.

Gorelal was dragged into the house of Rampal and was beaten, due to

which he succumbed and the dead body is lying in the house. At that time

Bhola Yadav, Bhailal, Bhaiyalal and Munnalal were present. On the basis

of such report F.I.R. Ex.P-2 was lodged. The investigations were initiated

by PW-12 R. N. Mishra, ASI. He recovered the dead body of Gorelal from

inside the house of Rampal. After taking dead body in possession vide

memo Ex.P-11, it was sent for postmortem vide memo Ex.P-23. He also

recorded the statements of Bhailal, Keshkali Yadav, Bhailal Yadav,

Bhaiyalal yadav, Bhole Yadav, Munna Lal Yadav and Motilal Yadav. He

sent Bhole Yadav and Munna Lal for medical examination vide memo

Ex.P-24 and P-25. The accused Motilal Kevat, Ramcharan Kevat, Ram

Sumiram Kevat and Ramkaran Kevat were investigated on 2.7.2004. On

the disclosure statement of Ram Sumiran, a wooden plank (Baseda),

Ballam from Ramkaran, Lathi from Motilal and Ramcharan were

recovered, which were taken into possession vide memos Ex.P-7 to 10.

The accused Ram Sumiran, Rampal, Motilal, Ramkaran and Ramcharan

were arrested on 2.7.2004, whereas accused Munnalal was arrested on

23.9.2004. He took into possession the blood stained earth from the field

of Ram Sumiran vide memo Ex.P-29. He prepared a site plan of the site on

1.7.2004. The articles recovered i.e. blood stained earth; plain earth; the

wooden lathi recovered from Motilal; Ballam from Ramkaran; wooden

plank (Baseda) recovered from Ram Sumiran; and, Lathi recovered from

Ramcharan, were sent for examination by Forensic Science Laboratory,

Sagar vide memo Ex.P-30. On completion of investigation a report under

Section 173 of the Code of Criminal Procedure was filed before the

learned trial Court. The accused denied their guilt and claimed trial.

In support of the prosecution, Motilal Yadav PW-1 author of

FIR and Munnalal Yadav PW-2, Bhailal Yadav PW-3, Bhaiyalal PW-5,

Smt. Keshkali wife and the deceased as PW-6 and Suresh Kumar Yadav

PW-7 as witnesses of the occurrence, whereas Bablu Yadav PW-8 is a

witness of recovery.

Motilal Yadav PW-1 has supported the prosecution story as

given by him in the FIR. In cross examination he stated that the fish pond

is about 200 meters from the house of deceased Gorelal, whereas his house is adjacent to the house of Gorelal. All the members of Yadav caste

stay in one locality. He denied the suggestion that Munnalal and Motilal

have not given any beatings to the deceased. Gorelal got beatings since he

was objecting to the fish being killed. He denied that he has not seen the

accused killing fish nor anybody has told him. The police got the fishing

net recovered next day and then they came to know that Gorelal was given

beatings for the reasons that the accused were attempt to fish from the

pond of Gorelal. He, Bhailal, Bhaiyalal, Munnalal and wife of Gorelal

reached the place of occurrence on hearing the alarm calls of Gorelal.

When he reached the place of occurrence, he saw that Gorelal was being

beaten and when many people came, the beatings were stopped and the

dead body of Gorelal was taken inside the house of Rampal. In cross

examination he has admitted that only on one Lathi he has seen blood. He

denied the suggestion that the Yadavs tease Kevats including their ladies

and children. He denied the suggestion that Gorelal went to the locality of

Kevats in a drunk condition. He denied the suggestion that on alarm raised

by wife of Rampal the beatings were given. He denied the suggestion that

Kevat people have given beatings to Gorelal only for this reason.

PW-2 Munnalal Yadav is nephew of deceased Gorelal. He

deposed that on alarm being raised by Gorelal that Ram Sumiran,

Ramkaran, Motilal, Munnalal are giving beatings, he saw all the accused,

who are present in the Court, were giving beatings with Lathi. On his

intervention, Rampal hit him with a stone. Thereafter, he does not know

what happened. In the cross examination he deposed that the stone hit him

in the stomach and he became unconscious. PW-3 is Bhailal Yadav. He

deposed that on hearing the alarm of Gorelal that Motilal, Munnalal,

Rampal, Ramkaran and Ramcharan are lifting him, he saw in the torch

lights that all the present accused were giving beatings to Gorelal.

Ramkaran had Ballam but rest of the accused have Lathi. Ramkaran was

hitting from the Lathi side of Ballam. Apart from him, Bhailal Yadav,

Gorelal, Keshkali wife of Gorelal, Suresh Yadav etc. came to the place of

occurrence. Munnalal and Rammaran dragged Gorelal inside the house of

Rampal. PW-4 Bhola Yadav deposed that he saw the fishing net put by

Ramkaran, Rampal, Munnalal, Ram Sumiran, Motilal in the pond in which

Gorelal has kept fish. On alarm of Gorelal that the accused have put

fishing net, then he and Munnalal Yadav reached the place of occurrence

and saw that the accused are giving beatings to Gorelal. On his

intervention, Ramkaran has hit him with the stone. Rampal hit Munnalal

also with the stone, which hit him on his abdomen and the accused

dragged Gorelal inside his house. Similar is the statement of PW-5

Bhaiyalal Yadav, brother of deceased, that on raising of alarm of Gorelal

that the accused are beating him, he reached the place of occurrence. All

the accused were giving Lathi blows to Gorelal. Keshkali Yadav PW-6 is

the wife of deceased Gorelal. She deposed that when she was cooking

food, her husband told her that he is going to pond and will eat the food

after coming back. After 1 ? an hour she heard alarm that Ramkaran etc.

are beating her husband. She ran with her child in her lap and then saw

that the accused were giving beatings to her husband near pond. All the

accused were giving beating with Lathi. Suresh Kumar Yadav PW-7 son

of Motilal Yadav deposed that when Gorelal did not permit the fishing net

to be put by the accused, then Ramkaran started abusing Gorelal.

Thereafter, four accused abused Gorelal. He told Gorelal to run. Gorelal

followed him but the people apprehended Gorelal near "Neem" and

"Jamun" tree. On raising alarm by Gorelal, Motilal Yadav, Bhailal Yadav,

Bhaiyalal Yadva, Munna Yadav, Bhole Yadav etc. came. The accused have

given merciless beating to Gorelal with Lathi. PW-8 Bablu Yadav, is the

witness of recovery of Lathi from the accused.

The postmortem report is Ex.P-22. The report says that the

deceased died of shock produced by internal bleeding and cumulative

effect of multiple injuries sustained over body which are homicidal in

nature. The postmortem report is to the effect that there was semi digested

food in the small intestine of the deceased. The statement of Keshkali wife

of Gorelal is that Gorelal had not eaten food before he went to the pond

stands contradicted by the postmortem report which is to the effect that

there was semi-digested food. The presence of semi-digested food

contradicts the prosecution story that the deceased had not taken food

before going to pond.

The prosecution witnesses are all Yadavs, living in the same

locality. They are interrelated as well. However, their statements are

contradictory. PW-1 Motilal Yadav deposed that Gorelal has gone to pond

to keep watch over it. But he has not deposed that the place of giving

beatings by the accused was the field of Ram Sumiran. However, what he

has deposed is that place of giving beatings was about 100 meters from the

house of Ramkaran and Munnilal. Whereas PW-2 Munnalal Yadav

deposed that the place of occurrence is near pond. He said to have

received injury from the stone thrown by Rampal, but the injury is simple

in nature. PW-3 Bhailal Yadav deposed that on raising alarm he saw the

accused are taking the deceased then he saw the accused giving beatings to

Gorelal. Whereas, all other witnesses have deposed that the accused gave

beatings and then dragged Gorelal into the house of Rampal. The

statement of this witness contradicts the statement of other witnesses. PW-

4 Bhole Yadav also deposed that Ramkaran hit him with the stone and

Rampal hit Munnalal. PW-5 Bhaiyalal deposed that on raising alarm by

Gorelal he reached the place of occurrence and has seen Munnalal and

Rampal were dragging Gorelal to the house where he died.

The Investigation Officer is Mr. R. N. Mishra, PW-12, ASI. In

his cross examination, he deposed that witnesses have told him that blood

stain was found on the edge of Ballam, but he denied of having seen any

blood stain on Lathi and wooden plank (Baseda). As per the report of

F.S.L. Ex.P-30, none of the Lathis, Ballam, wooden plank (Baseda) were

found to contain human blood. From the statement of PW-12, R. N.

Mishra, the dead body was recovered from inside the house of Rampal.

Though the prosecution witnesses have deposed that the accused dragged

the dead body into the house of Rampal, but the Investigating Officer has

not found any dragging marks. Still further, it is unbelievable that after

giving beatings with Lathi and Ballam, anybody would be fool enough to

drag the dead body inside their house. The fact that the dead body was

found in the house of Rampal corroborates the suggestion given to the

prosecution witnesses that he had teased wife of Rampal, which led to

beatings to the deceased by the relatives of Rampal.

In the absence of dragging marks, it is not possible to believe

that the deceased could be lifted alive so as to dump him in the house of an

accused. Therefore, it is impossible to accept the prosecution version that

the dead body could be dragged without any dragging mark. The

Investigating Officer in cross examination admitted that he has not shown

the pond in the site plan and that the place where the scuffle has taken

place is an open field, which is on the north side of the pond, whereas the

house of Gorelal is towards south of the pond. He could not explain how

Gorelal reached the place of occurrence. All the prosecution witness are of

one family. Their statement is not corroborated by any other independent

evidence, but is contradictory in respect of the manner of occurrence. It is

also impossible to imagine that the accused will injure the deceased

brutally and then take the dead body to their house.

The FIR was lodged at about 4:30 a.m. on 1.7.2004, though the

incident has occurred previous evening at around 7 - 8 p.m. The

explanation of the delay is that the informants were under fear. Such

explanation cannot be accepted as the informant was not alone, but with

large number of his clan, such as Munnalal Yadav PW-2, Bhailal Yadav

PW-3, Bhole Yadav PW-4, Bhaiyalal PW-5, Keshkali Yadav - wife of

deceased PW-6, Suresh Kumar Yadav PW-7 and Bablu Yadav PW- 8 are

stated to be at the place of occurrence. Therefore, the delay in lodging the

FIR remained unexplained.

Still further, Motilal PW-1 deposed that the dispute came to his

notice when in the morning the fishing net was recovered. Meaning

thereby, his presence at the time of occurrence is doubtful. Neither the

Investigating Officer has deposed about recovery of fishing net in the

morning nor is there any recovery of fishing net.

The blood stained earth and the sample earth were taken into

possession by the Investigating Officer at about 6:45 a.m. on 1.7.2004

vide Ex.P-29, in the presence of H. Tripathi and Shyam Sundar

Vishwarkama. Such are the witnesses of preparation of site plan Ex.P-12

also prepared at 6:45 a.m. Such witnesses have not been examined in

evidence. The FSL report is in respect of the blood stained earth and

simple earth recovered from the house of Rampal in Packets "A" and "B"

and the blood stained earth and simple earth recovered from the field of

Ram Sumiran in Packets "C" and "D". But, there is no proof of recovery

of blood stained earth and simple earth from the house of Rampal. Thus,

the prosecution story as propounded becomes doubtful.

Still further, as per the statement given by Keshkali wife of the

deceased, the deceased had not taken meals, but in the postmortem report

there is semi-digested food found. PW-13 - Dr. R. K. Thakur deposed that

the stomach gets empty after four hours of taking meals. The finding of

semi digestive food in the intestine shows that the deceased has taken

meals within four hours, whereas PW-6 - Keshkali, wife of deceased, has

deposed that she was yet to prepare meals when the deceased went

towards the fish pond.

The Supreme Court in the case of Shambhoo Missir and

another Vs. State of Bihar reported as (1990) 4 SCC 17 doubted the

prosecution case when the deceased was said to have taken food at 8:00

and the death occurred at 3:00 in somewhat situation as is in the present

case. The relevant extract of the judgment reads as under:-

"4. The substance of the prosecution case is that the deceased Rajendra died as a result of the assault in question at about 3.00 PM on the very day of the incident. However, on the basis of the medical evidence, the defence has succeeded in establishing that he had died soon after he left his house at 8.00 AM. Dr. Shambhoo Sharan (PW 13) who performed the post-mortem examination of the dead body, has stated both in his report as well as in his deposition, that there was 8 oz. of undigested food on the stomach of the deceased. If as alleged by the prosecution the death had occurred at 3.00 PM, no such undigested food would have been found in the stomach at that hour when the food was taken by the deceased before 8.00 AM. If this is so, then the whole case of the prosecution must crumble. For this will establish beyond doubt that Rajendra had died very soon after 8.00 AM and none of the so called eye-witnesses had seen the assault on Rajendra. The said fact will also demolish the entire version of the three dying declarations made by the deceased to various prosecution witnesses at three different places. The non-explanation by the prosecution of the undigested food therefore casts serious adverse reflections on the entire investigation in the present case. Unfortunately, the High Court has failed to deal with this very important aspect of the evidence on record which has been highlighted by the trial court. It also strengthens the defence version that the accused have been involved in the present case by the obliging witnesses and unfair investigation."

In another judgment in the case of Jitender Kumar

Vs. State of Haryana reported as (2012) 6 SCC 204, though the

Court has held that there is a rule of universal application that after

a lapse of two to three hours stomach of every individual, without

exception, would become empty. The Court discussed the books on

the Gestroenterology and Modi''s ''Medical Jurisprudence. The

Court observed as under :-

"55. It may be useful at this stage to refer to Modi''s ''Medical Jurisprudence and Toxicology'', Twenty Third Edition, which has specifically concluded that there is no absolute and definite standard that every human being would empty his stomach within two to three hours of taking the meals, irrespective of what kind of meal had been taken by the concerned person.

Judging the time of death from the contents of the stomach, may not always be the determinative test. It will require due corroboration from other evidence. If the prosecution is able to prove its case beyond reasonable doubt and cumulatively, the evidence of the prosecution, including the time of death, is proved beyond reasonable doubt and the same points towards the guilt of the accused, then it may not be appropriate for the Court to wholly reject the case of the prosecution and to determine the time of death with reference to the stomach contents of the deceased."

However, in the present case, the statement of wife is

categorical that the deceased has not taken meals but still the semi-

digested food is found in the small intestines creates the serious doubt on

the prosecution evidence as the entire prosecution story hinges on the fact

that the deceased has not taken food and has gone to fish pond to take care

of his fish.

The entire prosecution story is surrounded by suspicious

circumstances, which does not inspire confidence. Therefore, since the

prosecution evidence is unreliable we accept the present appeal and grant

benefit of doubt to the accused. Accordingly, the appeal stands allowed.

The appellants/accused are acquitted of the offence under Sections 302

read with Section 149 and Section 148 of I.P.C. They be released

forthwith, if not required in connection with any other case.