1. These two appeals are directed against a common judgment and order of the High Court of Chhattisgarh at Bilaspur (in short, “the High Court”), dated 17.02.2010, passed in Criminal Appeal Nos. 864 and 865 of 1991, whereby the appeals of Harilal and Parasram @ Rangnath (the appellants herein) were dismissed and the order of the third Additional Sessions Judge, Bilaspur, dated 13.07.1991, passed in S.T. No.153 of 1990, convicting and sentencing the appellants to imprisonment for life under Section 302 of the Indian Penal Code, 1860 (in short, “I.P.C.”) was affirmed.
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TRIAL COURT EVENTS
3. The prosecution examined as many as 15 witnesses. They were broadly categorized by the trial court into three categories: – (i) eye-witnesses of the incident; (ii) witnesses who reached the spot on getting information about the incident; and (iii) witnesses who proved proceedings relating to investigation, medical examination, inquest, seizure memos, preparation of site plan, etc.
4. The first category of witnesses were: PW-1 (Kanhaiya Lal); PW-2 (Sitaram); PW-3 (Mohanlal); and PW-6 (Ganesh). Another witness, namely, PW-4 (Ramanand), who was set up as a person who arrived at the spot on receipt of information of the incident, during his deposition, portrayed himself as an eyewitness of the incident.
5. Amongst the aforesaid category of witnesses, PW-1 was declared hostile. When he was confronted with his previous statement recorded under section 161 of the Code of Criminal Procedure, 1973 (in short, “the Code”) he stated that the police had forcibly taken his statement though he had not witnessed the incident. Consequently, the trial court found his testimony of no benefit to the prosecution. PW-3 was discarded by the trial court as unreliable because he was found inconsistent with his statement made during the course of investigation. PW-4, who for the first time during examination in Court professed himself to be an eye-witness, was also found not reliable as he too was inconsistent with his previous statement recorded during the course of investigation. Thus, only two eyewitnesses of the incident, namely, PW-2 and PW-6, were discussed in some detail by the trial court.
6. The trial court noticed that though PW-2 (Sitaram) supported the prosecution case as against accused Harilal but he did not name the other two accused, namely, Anshram and Parasram. However, PW-6 who inculpated all the three accused was found wholly reliable by the trial court. Therefore, by placing reliance on his testimony, the trial court convicted all the three accused. While doing so, the trial court found the testimony of PW-6 duly corroborated by medical evidence as also by the circumstance of discovery of blood-stained lathi and clothes at the instance of the accused.
DISCUSSION AND ANALYSIS
13. We have considered the rival submissions and have perused the record.
14. In this case, we notice from the record that the trial court as well as the High Court while appreciating the evidence have not properly addressed various aspects, namely, (a) there is no clear cut motive proved against the accused except that there was some incident concerning a lady of the village; (b) PW-2 and PW-6 both state that the deceased was assaulted in front of the house of one of the accused persons, namely, Anshram, but, the site plan (Ex. P-21/P-22) does not disclose the house of Anshram and from the site plan as well as the testimonies of PW-6, PW-9 (the informant) and police witnesses it is clear that dead body of the deceased was found near a temple about 300 feet away from the place where the deceased was allegedly assaulted; as to how the dead body reached there, the ocular account has no explanation though some drag marks were noticed by the investigating officer; (c) as per seizure memorandum (Ex. P-13), amongst other articles, a lathi was seized by the police from the place where the dead body was lying – whose lathi it was, the prosecution evidence is silent; (d) the articles i.e. lathi and clothes seized at the instance of the accused though were stained with blood, the serologist report could not confirm its origin; and (e) PW-2 sets up a story that he narrated the incident to PW-9 but PW-9, who is Kotwarin (village Chowkidar) of a neighbouring village, states that she was not informed by any eye witness, rather she arrived at the spot as a reaction to the commotion. All these aspects were material as they were indicative of a mob violence on the deceased due to some incident concerning a lady of the village.
15. Bearing the above aspects in mind, we shall now carefully examine the prosecution evidence to test whether it inspires confidence and succeeds in proving the charge against the accused beyond reasonable doubt.
FIR NOT LODGED BY THE EYE-WITNESSES
16. Before we proceed to analyse the testimony of the two material eye-witnesses of the incident (i.e., PW-2 and PW-6), what is important to note is that as per the ocular account of PW-2 and PW-6, the assault on the deceased took place between 7 pm and 8 pm of 25.08.1989. However, neither PW-2 nor PW-6 lodged the FIR. Rather, a named FIR was lodged on 26.08.1989 at 10 am by PW-9 i.e., Kotwarin (village Chowkidar) of neighbouring village Khapri, even though she was not an eye witness. In these circumstances, the statement of PW-9 assumes importance to ascertain the source of her information. Unfortunately, neither the trial court nor the High Court have carefully considered the deposition of PW-9.
ANALYSIS OF PROSECUTION WITNESS. 9
17. PW-9, in her deposition, stated that she is Kotwarin of village Kharpi and Kotwar of village Kohroda (i.e., the place where incident occurred) is some other person. Ellahabadiya @ Vijay (the deceased) was a resident of her village. On the night of the incident, at about 9 pm, while she was taking a round of her own village, she heard loud noises coming from village Kohroda. Fellow villagers Lulwa and Sudhwa asked PW-9 to go to village Kohroda. When she went to village Kohroda, she noticed the dead body of Ellahabadiya lying near Rupau temple. Upon finding the dead body there, she went to inform the village Chowkidar of Kohroda, woke him up and brought him to the place where the dead body was lying. Thereafter, the body was guarded through the night with the help of villagers and next day morning, FIR was lodged at P.S. Hirri.
During cross-examination, PW-9 specifically stated that she was not informed by any person that he had witnessed the deceased being beaten. She also specifically stated that neither Parasram nor Sitaram came to inform her about the incident.
18. The statement of PW-9 is of significance for multiple reasons. First, that PW-2 did not inform her about the night incident as is alleged by PW-2 in his deposition; second, the body of the deceased was found near the temple and was kept there overnight; and third, if no one had told PW-9 about the incident, why a named FIR was lodged.
NO QUESTION REGARDING DELAY WAS PUT TO PW.9
19. Although there might not have been a specific question put to PW-9 as regards the delay in lodging the FIR but the fact that it was a delayed FIR cannot be ignored. When an FIR is delayed, in absence of proper explanation, the courts must be on guard and test the evidence meticulously to rule out possibility of embellishments in the prosecution story, inasmuch as delay gives opportunity for deliberation and guess work. More so, in a case where probability of no one witnessing the incident is high, such as in a case of night occurrence in an open place or a public street.
ANALYSIS OF EYE-WITNESS AND RULED OUT ITS PRESENCE
20. Bearing the above principles in mind, when we test the deposition of PW-2 against the weight of PW-9’s testimony, the statement of PW-2 to the effect that after witnessing the incident, he left the spot and informed PW-9 appears unworthy of acceptance. That apart, PW-2 does not inculpate all the three accused. He only inculpates Harilal. In this regard, PW-2 is inconsistent with his previous statement inasmuch as in his previous statement, with which he was confronted, he had inculpated all the three accused whereas in his deposition in Court he stated that he had not stated before the investigating officer that both Anshram and Harilal were assaulting the deceased. Moreover, PW-2 does not disclose the seriousness of the assault on the deceased. He does not state that the deceased was seriously injured by the blows inflicted on him. Therefore, his statement is inconclusive as regards the assault being the cause of death. Rather, it leaves room for a possibility that the assault which he witnessed was just the beginning of a mob assault on the deceased concerning his involvement with a lady of the village. More so, when the dead body of the deceased was found 300 feet away from the place where the deceased was allegedly assaulted. Further, PW-2’s statement in respect of number of persons assaulting the deceased appears inconclusive. Taking the above into account and having regard to the fact that PW-2 is a chance witness, not a resident of the village where the incident occurred, and his statement was inconsistent with his previous statement, in our view, it would be unsafe to rely on PW-2 to convict the accused for the offence of murder
ALAYSING CHANCE WITNESS AND RULED OUT ITS PRESENCE
21. Insofar as PW-6 is concerned, he too is a chance witness, inasmuch as he was not present at the spot when the assault on the deceased started. According to him, he came out to witness the incident when an alarm was raised by mother of Parasram, one of the accused, that Ellahabadiya (the deceased) was beating her son. According to PW-6, when he came out, he saw all the three accused assaulting the deceased with lathi in front of the house of Anshram. He does not state that the deceased was armed and had attacked the accused. The deposition of PW-6 that he came out to witness the incident on alarm raised by accused Parasram’s mother that his son is being beaten by Ellahabadiya (the deceased) is inconsistent with his previous statement made during the course of investigation, with which he was confronted, wherein he stated that he came out on hearing loud noises coming from the street in front of the house of Anshram. His previous tatement is reflective of a mob attack on the deceased which is corroborated by PW-6’s conduct, inasmuch as, according to PW-6, after witnessing the incident, PW-6 went away without informing any one about the incident and returned back only when all the villagers congregated at Rupau temple near the dead body of the deceased. No doubt, different people react differently to a given situation. But if it had truly been an issue between few individuals fighting in the street, natural course of human conduct would be to collect people to solve out issues. However, where villagers in general, and none in specific, assault a person accused of his involvement with a lady, it is quite natural for by-standers not to intervene.
22. In addition to the above, what is of significance is that if PW-6 had arrived at the spot later, when other villagers had collected near the body of the deceased, he could have informed PW-9 about the culpability of the accused but, PW-9 categorically states in her deposition that no one informed her about the perpetrator of the crime. 23. Further, PW-6 gives no indication as to how the body of the deceased was brought near the temple from the place where he was allegedly assaulted i.e. in front of the house of Anshram. It be noted that in paragraph 4 of his deposition, PW-6 categorically states that the distance between the temple where the body was found and the place where the deceased was assaulted is 300 feet. For all the reasons above, we do not find the testimony of PW-6 to be of such a stellar quality that it may on its own form the basis of conviction of the accused for the offence of murder. More so, because it leaves many gaps in the prosecution story, namely, as to how the body came near the temple and why a lathi was left near the dead body of the deceased when, as per the police story, all the three assailants had walked away with their respective lathis, which were later discovered at their instance.
UNEXPLAINED PRESENCE OF THE LATHI IS OF SIGNIFICANCE WHEN IT IS NOT THE CASE OF THE PROSECUTION THAT THE DECEASED HAD USED THE LATHI IN SELF-DEFENCE AND RULED OUT DISCOVERY
25. At this stage, we may observe that though the prosecution relied on seizure of lathis and clothes at the instance of the accused but these incriminating circumstances have been denied and the serologist report could not confirm the origin of blood stains found thereon. That apart, next to the dead body of the deceased, a lathi was found. This lathi alone could have caused the injuries found on deceased’s body. Unexplained presence of the lathi is of significance when it is not the case of the prosecution that the deceased had used the lathi in self-defence. For all the reasons above, we do not consider seizure of lathi and clothes from the accused as a clinching circumstance warranting conviction.
ACCUSED ACQUITTED.
PARTY: HARILAL ETC vs. STATE OF MADHYA PRADESH (NOW CHHATTISGARH) – Criminal Appeal Nos.2216-2217 of 2011 – September 05, 2023
https://main.sci.gov.in/supremecourt/2010/10526/10526_2010_16_1502_46737_Judgement_05-Sep-2023.pdf
Harilal vs. State of M.P – murder case acquitted
