State of M.P. (Now C.G.) vs Budru and Others

D.R. Deshmukh, J.—This criminal appeal by the State is directed against the judgment dated 31-5-1989 delivered by the 3rd Additional Sessions Judge, Bastar place at Jagdalpur in Sessions Trial No. 48/87, whereby the Respondents Arjun and Baldeo and deceased co-Respondents Budru and Raghu were acquitted of the charge under Sections 147, 302 read with Section 149 of the I.P.C.

The appeal has abated against the Respondents Budru and Raghu, who died during pendency of this appeal.

Prosecution story is that Nakul son of deceased Shivnath was married to the daughter of Budru. However, daughter of Budru remarried upon which enmity erupted between Budru and Shivnath. On 2-8-1986 an oral altercation had taken place between Shivnath and Budru on the same issue. Shivnath accompanied by Manto, Mani, Mansingh and Sitaram was going to P.S. Bhanpuri to lodge a report. Near Hathitalab, Farsaguda, on the main road, Budru, Raghu, Arjun, Baldeo and Phoolsingh started a fight with Shivnath. Budru assaulted Shivnath by a Farsi on the left wrist, right hand and chest. His companions also assisted in the assault. Sitaram P.W.-3 and his companions intervened. Sitaram P.W.-3 snatched the Farsi from Budru after he sustained an injury on the left wrist. At about 9:20 P.M. Sitaram P.W.-3 accompanied with Shivnath and Sonsingh P.W.-4 went to P.S. Bhanpuri and lodged the F.I.R. Ex.P-3. One iron Farsi with a wooden handle was seized vide Ex.P-4 from Sitaram at the time of lodging the F.I.R. On 2-8-1986 Moharrir Dinkar Prasad Shukla P.W.-8 sent Shivnath for medical examination to the Government Hospital Bhanpuri. Sometime after medical examination, Shivnath died. Inquest was recorded vide Ex.P-14 on 3-8-1986. Post mortem was conducted by Dr. N.S. Thakur P.W.-2 who found the following injuries on Shivnath vide autopsy report Ex.P-2:

After completion of investigation, the Respondents were prosecuted under Sections 147, 302 read with Section 149 of the I.P.C. Challan was filed against Phoolsingh before the Juvenile Court.

The Respondents abjured the guilt, pleaded innocence and proved the M.L.C. report Ex.D-3, Ex.D-4 and Ex.D-5 dated 2-8-1986 of the Respondents Baldeo, Raghu and Budru respectively. The prosecution examined as many as 13 witnesses. The learned Additional Sessions Judge acquitted the Respondents on the ground that besides Sitaram P.W.-3 who was related to the deceased other independent eye-witnesses Manto, Mani and Mansingh who were cited by the prosecution were not examined by the prosecution. No explanation was offered for the injuries sustained by Raghu, Budru and Baldeo. The testimony of Sitaram P.W.-3 that Baldeo had assaulted Shivnath by a knife in the chest and neck was not reliable because in the F.I.R. or in his statement u/s 161 of the Code of Criminal Procedure this fact was not stated. The possibility that the deceased was the aggressor and had started the fight could not be ruled out.

Shri Ashish Shukla, learned Government Advocate for the State/Appellant argued that even if the prosecution had not examined independent witnesses Manto, Mani and Mansingh, the testimony of Sitaram P.W.-3 alone could form the basis for convicting the Respondents under Sections 147, 302 read with Section 149 of the I.P.C. It was also argued that failure to offer explanation for the simple injuries sustained by the Respondents did not render the testimony of Sitaram unworthy of credit. Besides, Sonsingh P.W.-4 had also proved the oral dying declaration of Shivnath implicating Budru and Baldeo for the assault by Farsi and knife respectively on him. Therefore, the acquittal of the Respondents by the learned Additional Sessions Judge ought to be set aside and the Respondents were liable to be convicted under Sections 147, 302 read with Section 149 of the I.P.C. Reliance was placed on State of M.P. v. Kalu Ram and Anr. 2004 SCC (Cri) Supp 323, Ram Udgar Singh v. State of Bihar 2004 SCC (Cri) Supp 550.

On the other hand, Shri Vishnu Koshta, learned Counsel for Respondents No. 2 Arjun and No. 4 Baldeo argued in support of the impugned judgment and placed reliance on Hem Raj and Ors. v. State of Haryana AIR 2005 SCW 1885.

Having considered the rival submissions, we have perused the record. In this appeal, the sole question that arises for consideration is whether the testimony of Sitaram P.W.-3, who is the younger brother of Shivnath could form the basis for convicting the Respondents Arjun and Baldeo. It is settled law that if the testimony of an eye-witness is found worthy of credence, conviction could be founded on such testimony even though the prosecution did not examine other available independent eye-witnesses, in this case Manto, Mani and Mansingh, who were also cited as witnesses in the challan. The law is equally well settled that testimony of a relative cannot be brushed aside merely on the ground of his being a relative if it is found to be trustworthy on material particulars.

Dr. K.N. Tripathi P.W.-12 proved the injury report which revealed that Sitaram P.W.-3 had sustained an incised wound 2.5cms. x 1cm x 1cm on the junction of the 1/3rd and 2/3rd of the right shoulder on 2-9-1986. The presence of Sitaram P.W.-3 at the time of occurrence with the deceased Shivnath cannot therefore be doubted as he is an injured witness. We shall therefore examine whether the testimony of Sitaram P.W.-3 is worthy of credence.

F.I.R. Ex.P-3 was lodged by Sitaram P.W.-3. In the F.I.R., he had stated that Budru had assaulted Shivnath on the left wrist, right hand and the chest by a Farsi. He did not state therein that Baldeo had pierced a knife in the chest of Shivnath. Even in his statement u/s 161 of the Code of Criminal Procedure. Sitaram did not state this fact. These material omissions were put to the witness in para 8 of his testimony for which no explanation could be offered by him.

Sitaram P.W.-3 tried to completely suppress the fact that the Respondents had lodged a police report against him regarding the same incident and a challan was also filed by the police. Thana Moharrir Dinkar Prasad Shukla P.W.-8 admitted in para 2 that on 2-8-1986 on the report of Budru he had also registered a crime against Sitaram and others and in the incident that had occurred on 2-8-1986 both the parties had sustained injuries. He specifically stated in para 3 that at the time of lodging the F.I.R. Sitaram did not tell him that Baldeo had assaulted Budru by a knife on the chest or the Respondents Raghu and Budru had assaulted Sitaram by a club. Thus, it becomes doubtful whether Baldeo had assaulted Shivnath by a knife or had dealt the fatal blow on his chest. The appeal has abated against Budru due to his death.

Even though Sitaram P.W.-3 had stated in the F.I.R. that Manto, Mani and Mansingh were accompanying him and Shivnath at the time of occurrence, in para 13 he took a summersault and stated that at the time of occurrence nobody was accompanying him and Shivnath. His testimony shows that immediately after the occurrence he had gone to the house of one M.L.A. Baliram Kashyap who had taken his elder brother to the P.S. Bhanpuri. Surprisingly in para 6 Sitaram P.W.-3 has completely disowned the F.I.R. lodged by him by stating that at P.S. Bhanpuri he did not lodge any F.I.R. This further renders the testimony of Sitaram P.W.-3 unworthy of credit.

No explanation is forthcoming from the prosecution for the injuries sustained by the Respondents Baldeo, Raghu and Budru. The medical reports of Budru Ex.D-5, Raghu Ex.D-4 and Baldeo Ex.D-3 was proved by Dr. K.N. Tripathi P.W.-12 during cross-examination. It is true that Baldeo had a superficial abrasion but Raghu had swelling on his right shoulder due to which movement was very painful and an abrasion on the right eyebrow. The Respondent Budru had sustained a bruise with abrasion above the right eyebrow which was very painful. He had swelling on the posterior aspect elbow joint movement of which restricted. There was abrasion on the posterior aspect of right elbow joint with oozing of blood. He had also-sustained swelling over the left side of back (chest) just lateral to midline in the 7th and 9th rib which was tender. X-ray of injury No. 2 was advised by Dr. K.N. Tripathi P.W.-12. Prosecution neither produced the injury reports or the x-ray report of the Respondents Raghu and Budru. In the facts and circumstances, non-explanation of the injuries sustained by the Respondents creates a serious dent in the prosecution story.

It thus appears that prosecution has suppressed the genesis of the crime and the testimony of Sitaram P.W.-3 does not inspire confidence because even Sitaram P.W.-3 had suppressed true facts by showing complete ignorance about the report lodged by the Respondents. His testimony regarding assault by Baldeo by knife on the chest of Budru is also rendered wholly unreliable because of the material omission to state this vital fact not only in the F.I.R. Ex.P-3 but also in his statement u/s 161 of the Code of Criminal Procedure. Since the witness even disowned that he had lodged the F.I.R. Ex.P-3, his testimony is rendered wholly unworthy of any credit It would be extremely unsafe to convict the Respondents on such testimony. It is in this backdrop that the non-examination of material, independent and available witnesses Manto, Mani and Mansingh becomes crucial and fatal to the prosecution. It is in this backdrop that failure to furnish any explanation of the injuries sustained by the Respondents in the occurrence also renders the testimony of related witness Sitaram P.W.-3 doubtful.

Sonsingh P.W.-4 deposed that in the house of the M.L.A. Baliram, Shivnath who was in a semi-conscious condition had told him that Budru had assaulted him by a Farsi and Baldeo had assaulted him by a knife. It thus transpires from his testimony that Shivnath did not narrate about any overt act by Arjun and Raghu during the occurrence to this witness. In cross-examination, this material omission in his statement u/s 161 of the Code of Criminal Procedure Ex.D-2 was put to this witness but he was not able to offer any explanation. Sonsingh P.W.-4 admitted that prior to the occurrence prosecution was launched against them for forcibly taking away the daughter of Budru. His testimony about the dying declaration by Shivnath is thus rendered unreliable.

The case law cited by the learned Government Advocate for the State/ Appellant are clearly distinguishable as in those cases the trial Court had convicted the Appellants but the High Court had, despite there being sufficient evidence acquitted the Appellants merely on the ground that genesis of the prosecution case was doubtful because the injuries on the accused were not explained and independent eye-witnesses were not examined by the prosecution. In the present case, the testimony of Sitaram P.W.-3 is wholly unworthy of any credit and the testimony of Sonsingh P.W.-4 about the dying declaration by Shivnath is also unreliable. Both are related witnesses. It is in this context that non-examination of Manto, Mani and Mansingh, who were independent witnesses, named in the F.I.R. and also cited by the prosecution becomes fatal to the prosecution and not offering any explanation regarding the injuries suffered by the Respondents creates a serious doubt in the prosecution story.

In Ram Swaroop and Ors. v. State of Rajasthan AIR 2004 SC 2943, it was held by the Supreme Court as under:

It is well settled that if two views are reasonably possible on the basis of the evidence on record, the view which favours the accused must be preferred. Similarly it is well settled that if the view taken by the trial Court while acquitting the accused is a possible, reasonable view of the evidence on record, the High Court ought not to interfere with such an order of acquittal merely because it is possible to take the contrary view. It is not as if the power of the High Court in any way is curtailed in appreciating the evidence on record in an appeal against acquittal, but having done so, the High Court ought not to interfere with an order of acquittal if the view taken by the trial Court is also a reasonable view of the evidence on record and the findings recorded by the trial Court are not manifestly erroneous, contrary to the evidence on record or perverse.

In Hem Raj and Ors. v. State of Haryana (supra), it was held that where the evidence of closely related eye-witnesses was not found to be reliable the fact that no independent witness though available was examined and not even an explanation was given for not examining such witness, a serious infirmity'' is created in the prosecution case.

Having thus considered the evidence on record, we are of the considered opinion that the acquittal of the Respondents by the learned Additional Sessions Judge does not call for any interference. We accordingly dismiss the criminal appeal.