Full Judgment Text
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CASE NO.:
Appeal (crl.) 388 of 2000
PETITIONER:
Moti
RESPONDENT:
State of U.P.
DATE OF JUDGMENT: 07/03/2003
BENCH:
N Santosh Hegde & B P Singh
JUDGMENT:
J U D G M E N T
SANTOSH HEGDE, J.
The appellant in Criminal Appeal No.388/2000 was
charged along with four other accused persons for having
committed murder of one Ram Briksha on 18.6.1979 at about
9.30 p.m. The learned Sessions Judge who tried the said
accused persons in S.T. No.31/1980 found all the accused
persons including the appellant herein guilty of the offences
charged and convicted them for offences punishable under
Section 302 IPC read with Section 149 IPC and imposed the
sentence of imprisonment for life. While doing so, the learned
Sessions Judge relied upon evidence of PWs.2 to 5 who were
produced by the prosecution as eye witnesses.
The aggrieved accused persons preferred an appeal
before the High Court of Judicature at Allahabad in Criminal
Appeal No.1622/1980. The High Court rejected the evidence of
PWs.3 and 4 as not believable but relied on the evidence of
PW-2, the mother-in-law of the deceased and PW-5, the wife of
the deceased and based on their evidence while acquitting the
other accused persons convicted the appellant alone by
confirming the judgment of the learned Sessions Judge and
awarded to the appellant punishment under Section 302 read
with Section 149 IPC.
It is against the said judgment of the High Court
convicting the appellant herein, the appellant has preferred
Criminal Appeal No.388/2000.
The State has preferred the connected Criminal Appeal
No.389/2000 against the acquittal of the other accused.
The entire prosecution case as accepted by the High
Court in this case so far as appellant Moti is concerned rests on
the evidence of PWs.2 and 5.
The brief facts necessary for the disposal of these appeals
are that on 18.6.1979 at about 9.30 p.m. When the deceased and
his father-in-law Ram Nath (since dead) were sitting outside the
house of his father-in-law, the accused persons came there. At
that time appellant was armed with a spear and the other
accused persons were armed with lathis. Thereafter, the
prosecution states that on an exhortation made by Bhola and
Mahatam, the respondents in the connected appeal, all the five
accused persons assaulted the victim with lathis and thereafter
dragged him to the courtyard of the house of appellant Moti
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which was nearby where the appellant Moti allegedly gave a
blow with the spear on the chest of the deceased and others
gave him lathi blows consequent to which he died. The
complaint of this incident was given by the father-in-law Ram
Nath at Balipar Police Station on 19.6.1979 at about 0030 hrs.
with PW-3 Dilraj. The said Station House Officer of the Police
Station registered the complaint and the investigation was
subsequently conducted by PW-8 Devi Sharan Singh, Sub
Inspector. On completion of the investigation, as stated above, a
charge-sheet under Sections 147, 148, 149 and 302 IPC was
lodged against all the accused persons. After completion of the
trial all the accused persons were convicted by the learned
Sessions Judge, as stated above, based on the evidence of eye
witnesses PWs.3 to 5. While the High Court disbelieving the
evidence of PWs.3 and 4 allowed the appeal of the four accused
persons but convicted the appellant Moti, as stated above.
During the pendency of these appeals, accused Chinku
who is respondent in Criminal Appeal No.389/2000 has died
and the appeal has abated as against him.
Shri U.U. Lalit, learned counsel appearing for the
appellant Moti in Criminal Appeal No.388/2000 submitted that
both the courts below have seriously erred in not noticing the
medical evidence which clearly establishes the falsity of the
prosecution case in regard to the time of incident. He contended
that the incident in question could not have happened at 9.30 in
the night and must have happened much earlier in the day
which was not noticed by anybody and it is only subsequently
when the body of the deceased was found, based on suspicion
the appellant as well as the other accused persons were
implicated in this case. He also pointed out from the evidence
of PWs.2 and 5 the inherent discrepancies which make their
evidence unreliable. Learned counsel pointed out that the High
Court having rightly rejected the evidence of PWs.3 and 4
produced as eye witnesses by the prosecution ought not to have
relied upon the evidence of PWs.2 and 5 only to convict
appellant Moti and in the absence of there being any acceptable
direct evidence as to the overt act of appellant Moti, he could
not have been convicted for an offence under Section 302 read
with Section 149 IPC when the other accused persons were
acquitted. He also submits that there is no material as against
this appellant even to convict him for an offence punishable
under Section 302 IPC simplicitor.
Mr. Praveen Swarup, learned counsel appearing for the
State of U.P., per contra, contended that as held by the High
Court the medical evidence in regard to the contents of the
stomach of the deceased is immaterial for the purpose of
establishing the time of incident. He submitted that evidence of
PW-2 who is the mother and PW-5 who is the wife whose
presence at the time of incident could not be disputed clearly
shows the involvement of the appellant in the crime. He also
submitted that the High Court was in error in rejecting the
evidence of PWs.3 and 4 and acquitting the other accused
persons and therefore the State appeal (Crl. A. No.389/2000) in
regard to them ought to be allowed.
Dr. I.P. Tyagi, learned counsel appearing for the
respondents in Criminal Appeal No.389/2000 supported the
judgment of the High Court so far as the respondents in the said
appeal are concerned.
Having heard the learned counsel for the parties and
perused the material on record, we notice that there is a serious
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flaw in the prosecution case as to the time of the incident.
According to the prosecution, the incident in question has
occurred around 9.30 p.m. on 18.6.1979 when deceased and his
father-in-law were sitting on a cot outside their house after
finishing their dinner. PW-5 Tara, the wife of the deceased in
her evidence has stated thus :
"Ram Briksha used to look after it in day
time and he used to return back in the
evening. He was sitting after taking his
meal. First of all, male member of family
took their meal then female member of the
family took meal. Rice, roti and vegetable
were prepared in food. Amongst the male
members my father and husband were there
at my home. We had taken meal half an hour
before the murder. As my father and
husband sat outside the house after taking
food then accused armed with bhalla and
lathi came there I had prepared food. Today
my mother has accompanied me."
It is clear from the said evidence of the wife of the
deceased that on the date of incident her husband after coming
back from working in the evening along with his father-in-law
took his meal which was cooked by PW-5. She also says that
for the said meal she had cooked rice, roti and vegetables and
the said meal was served to her father and husband about half
an hour before the incident in question. This evidence has not
been clarified in any manner by the prosecution. Though PW-2
Parvati, the mother-in-law of the deceased at one place in her
evidence says that the dinner was not cooked when the incident
had taken place, we find it difficult to reject the evidence of
PW-5 when she states that the dinner was cooked and the
deceased and her father had eaten by the time the incident had
taken place. It is common knowledge that in a village, more so,
in a place where there is no electricity, the villagers after
finishing their work normally have their meals early. Therefore,
the evidence of PW-5, in our opinion, fits in to the normal
conduct of a villager and hence is worthy of acceptance. If this
be the evidence that is adduced by the prosecution then the post
mortem report should clearly show at least semi-digested food,
if not undigested food in the stomach of the deceased, but the
evidence of the doctor in this regard is quite the contrary.
Both the post mortem report and the medical evidence
adduced by the prosecution clearly show that the entire stomach
of the deceased including both the intestines were empty which
would indicate that at the time of the murder the deceased had
not taken his meals and his murder must have taken place at
least 3 to 4 hours after he had his last meal. PW-5 at one place
in her evidence states that her husband had his lunch in the
afternoon and was resting because he was not feeling well.
Therefore, it is possible that the deceased was done to death
much after his afternoon meal and much before his night meal.
If this be the fact then there is a serious dispute as to the actual
time of incident which is a very much important factor in
finding out whether the case as presented by the prosecution is
true or not. This discrepancy also affects the credibility of
evidence of eye-witnesses because if really the incident had
occurred much before the dinner time, a doubt is created in our
minds whether these eye-witnesses could have noticed the
incident at all and if they noticed the incident why they are
stating the time of incident as 9.30 in the night.
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It is rather surprising that the High Court should find this
part of the medical evidence as being of no consequence at all.
The High Court referring to this part of the medical evidence
has observed : "In our opinion the stomach contents are not
very material to determine the time of incident." We are of the
considered opinion this view of the High Court is wholly
erroneous. It may be possible to contend that contents of the
stomach may not always be an indicator of the time of death.
But in a case where stomach is empty and the prosecution
evidence is that the murder had taken place shortly after the
deceased had his last meal, to say that the contents of the
stomach have no material bearing on the determination of the
time, in our opinion, is not acceptable. In the instant case, time
of death being a material factor to verify the presence of the
eye-witnesses it was obligatory for the prosecution to have
clarified the discrepancy between the medical evidence and the
oral evidence. The prosecution having failed to do so, in our
opinion, a serious doubt as to the time of incident and the
presence of the eye-witnesses at the time of incident and their
narration of the incident also becomes doubtful.
Incidentally, we may also notice that even according to
the prosecution, appellant Moti had no motive to commit the
crime in question. The incident as narrated by the eye-witnesses
having taken place in a place where there was no proper light to
identify the actual accused who dealt the fatal blow also
contributes to the factum of doubt in the prosecution case.
Therefore, in our opinion, the prosecution has failed to establish
its case against the appellant Moti.
Since we are in agreement with the contention of the
learned counsel for the appellant in Criminal Appeal
No.388/2000 that the prosecution has failed to establish the
charge alleged against the appellant therein, there is no need for
us to discuss the merits of Criminal Appeal No.389/2000.
For the reasons stated above, Criminal Appeal
No.388/2000 is allowed and Criminal Appeal No.389/2000 is
dismissed.
Appellant Moti in Criminal Appeal N0.388/2000, if not
required in any other case, shall be released from custody
forthwith.
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