Deepak Gutpa, J.(Oral)
This appeal by the convicted accused is directed
against the judgment dated 24.10.2008 passed by the
Division Bench of the High Court of Madhya Pradesh,
whereby the High Court upheld the judgment of the
Sessions Judge, Datia dated 30.03.1995 convicting the
appellants of having committing offences punishable under
Sections 148 and 302 read with 149 of the Indian Penal
Code. Appellants were sentenced to undergo life
imprisonment for the offence of murder and two years
rigorous imprisonment for the offence punishable under
Section 148 IPC. They were also directed to pay fine of
Rs.25,000/- and in default of payment of fine further
ARJUN BISHT three years rigorous imprisonment.
Shortly stated the prosecution case, as reflected in
the FIR is that on 25.05.1994 at about 2 pm., Lakhan
Singh (PW-10) and Ram Singh (PW-11), who were coming from
village Baron Kalan to village Kotra, saw the accused
persons beating Gajraj Singh with lathis at a place
called Brar Khora. These two witnesses asked why the
accused were beating Gajraj Singh and then they were
threatened by the accused. Being scared, they ran away
from the spot to save their own lives. Then they reached
village Kotra and thereafter went to the police station
at about 5 pm. to lodge the FIR. We may also add that
though this is not part of the FIR, during the course of
investigation it has transpired that Somati (PW-6) and
Raghubir (PW-7) last saw Gajraj Singh with accused Imrat
Singh. Both, the Trial Court and the High Court, have
accepted the testimony of Lakhan Singh (PW-10) and Ram
Singh (PW-11) to be true and accepting their evidence to
be true and treating these two witnesses as eye-witnesses
have convicted all the accused as aforesaid. Hence, the
present appeal.
The main contention raised before us by Ms. June
Chaudhary, learned senior counsel, as well as Mr. Shikhil
Suri, whom we had asked to assist us as amicus, is that
the testimonies of Lakhan Singh (PW-10) and Ram Singh
(PW-11) are totally untrustworthy and cannot be relied
upon. They submit that if the testimonies are read as a
whole along with the other attending circumstances, to
which we shall advert later, no reliance can be placed on
these two witnesses and, therefore, the conviction is
liable to be set aside. Even with regard to Somati (PW-6)
and Raghubir (PW-7), it is submitted that their
testimonies are contradictory and cannot be relied upon
and at best the testimonies will go against Imrat Singh
and not against any of the other accused.
We need not refer to the FIR in detail. We will
straight away deal with the statement of the two star
witnesses of the prosecution Lakhan Singh (PW-10) and Ram
Singh (PW-11). They are both residents of Village Kotra.
Their version is that they had gone to village Baron
Kalan since they both had worked there and Lakhan Singh
(PW-10) had to meet a potter Bhagwan Dass to get some
work done. According to them, when they were returning
from Baron Kalan and had reached near Brar Khora they saw
all the five accused Imrat Singh, Hetam Singh, Raghubir
Singh, Nirbhaya Singh and Ratan Singh beating Gajraj
Singh with lathis. According to Lakhan Singh (PW-10),
this occurrence took place in Brar Khora near the passage
where they were walking. Whereas according to Ram Singh
(PW-11), the distance was only 10 steps. Both of them
stated that when they enquired from the accused as to why
they were beating Gajraj Singh, they were also threatened
and then they ran away. As far as this part of the story
is concerned, there is complete identity between the
versions of those two witnesses. It is almost a parrot
like version. The question is whether these witnesses are
telling the truth or not. If we were to rely only on this
portion of the testimony there would be no difficulty in
upholding the judgment of the High Court.
The subsequent portion of the statements of these
witnesses is so much at variance with each other and
there are so many material contradictions in the
statements of these two witnesses that as far as other
aspects are concerned, a doubt has been cast in our minds
that these witnesses are prepared witnesses who have come
out with a parrot like version as far as the incident
itself is concerned but when it comes to the attending
circumstances their evidence falls apart and does not
withstand the scrutiny of cross-examination.
According to Lakhan Singh (PW-10), immediately after
the incident, they reached village Kotra. Lakhan Singh
(PW-10) states that on reaching village Kotra he narrated
the entire incident to Vrish Bhan Singh, Man Singh, Rudra
Singh and Kishori. None of these four have been examined.
Thereafter, Har Bilas (PW-15), who happens to be the
brother of the daughter-in-law of the deceased came to
village Kotra and he was informed about the occurrence.
If the occurrence occurred at about 2 pm., the witnesses
would have reached village Kotra in 10 minutes at the
most. Mahender Singh (not examined) and Jabbar (not
examined) also arrived in the village. According to
Lakhan Singh (PW-11), one Raghubir, servant of Brij
Mohan, came and told him that the dead body of Gajraj
Singh was lying in the jungle at Khora. Here it is
pertinent to mention that Raghubir (PW-7), who has been
examined, is actually servant of Gajraj Singh and not of
Brij Mohan, but we will, for the sake of this case,
accept that Raghubir, who has been referred to in the
statement of Lakhan Singh (PW-10), is the servant of Brij
Mohan.
Thereafter, according to Lakhan Singh (PW-10) he
went to the police station to report the matter and
lodged the complaint vide report-Exhibit P-10, which was
read over and explained to him. However, in cross-
examination he gives a totally different version.
According to him, he had reached the village Kotra
between 2.30 and 3 pm. and thereafter he, Rudra Singh,
Ajab Singh (not examined), Har Bilas and Ram Singh (PW-
11) consulted with each other and then went to report the
matter to the police. When they reached the police
station the Head Constable, who was present in the police
station, stated that he was calling the SDOP and the FIR
would be lodged and further action will be taken only
after the SDOP was called. Thereafter, the SDOP reached
the police station at about 6 pm. and then Lakhan Singh
reported the entire matter to the SDOP. It would be
pertinent to mention here that neither the Head Constable
nor the SDOP have been examined. Whereas in examination-
in-chief this witness has stated that his report was
lodged as soon as he reached the police station but when
cross-examined he was forced to admit that the report was
lodged only on the arrival of the SDOP who further
advised that they will visit the place of occurrence
first and then lodge the report, which means that an oral
report was lodged with the SDOP, then some persons went
to the spot and after coming back from the spot the
formal FIR was lodged.
Interestingly, this witness states that many
villagers, including Ram Singh, along with SDOP and other
police officials had visited the place of occurrence but
he did not go to the place of occurrence with the SDOP.
Coming to the statement of Ram Singh (PW-11), as we
have mentioned above, as far as the main witnesses are
concerned, statement is almost similar. He also states
that he went to the police station and lodged the report.
However, he states that when they reached the village
they did not tell anybody about the incident after
reaching the village. This conduct is not natural. He
then states that Har Bilas, Mahender Singh and Raghubir
then informed in the village that Gajraj Singh had
expired. This is totally different from what has been
stated by Lakhan Singh. This witness also states that
site plan of the place of occurrence was not prepared by
the police in his presence. He states that the site plan
does not bear his signatures. This witness has been
confronted with the statement recorded under Section 161
Cr.P.C. (Ex.D-5) wherein the fact that he had seen the
occurrence from a distance of 10 steps, has not been
specifically stated. We do not find this a material
contradiction because in a Section 161 statement a person
may or may not state the exact distance. However, whereas
in Court this witness states that when Gajraj Singh was
being beaten up, the accused were asking Gajraj Singh why
he had not voted for Meera, this fact was not recorded in
the Section 161 statement which is a material
contradiction because if this had actually happened, this
would have been recorded in the statement under Section
161 Cr.P.C. and would have also been stated by Lakhan
Singh (PW-10) who was along side Ram Singh (PW-11). This
clearly shows that these witnesses have been improving
their statements with the passage of time.
Another important aspect of the statement of this
witness is that he says that when he and Lakhan Singh
(PW-10) witnessed the incident, they rushed back to the
village and went to the shop of Rudra Singh where
Mahender Singh was also present. He states that none of
them had made an effort to go back to the place of
occurrence to save Gajraj Singh. According to him, Har
Bilas came after half an hour and told them that Gajraj
Singh had died. This is totally different from the
statement of Lakhan Singh (PW-10). According to him, it
was Raghubir, servant of Brij Mohan, who informed about
the death of Gajraj. Therefore, there is contradiction in
the statement of these two witnesses as to who informed
the villagers that Gajraj Singh was dead.
The other major contradiction is that according to
Ram Singh (PW-11) they reached the police station at 5
pm. at which time the Deputy Superintendent of Police had
already reached the police station. This is totally
different from the statement of Lakhan Singh (PW-10).
According to this witness, Lakhan Singh (PW-10) narrated
the whole incident to the Deputy Superintendent of Police
and thereafter the Deputy Superintendent of Police said
that they would first go to the place of occurrence and
see the dead body and the complaint will be registered
thereafter. It seems that his reference to the Deputy
Superintendent of Police is to the same person referred
to as the SDOP by Lakhan Singh (PW-10). The contradiction
is that whereas Lakhan Singh (PW-10) stated that this
person was not at the police station and came after about
one hour, according to Ram Singh (PW-11) this person was
already at the police station.
The first site plan (Ext.P-18) was prepared by Head
Constable Sita Ram, who has not been examined, however,
it is counter signed by one Jagdish, who has been
examined as PW-14. Interestingly, the site plan is
alleged to be signed by both Lakhan Singh (PW-10) and Ram
Singh (PW-11) and the site plan indicates that it was
prepared on the instructions given by Lakhan Singh but
Lakhan Singh states that he never went to the place of
occurrence with the police and Ram Singh states that he
never signed the site plan. We are not using the site
plan to support the prosecution case or the case of the
accused but the manner in which the site plan was
prepared clearly indicates that the investigation was not
a fair investigation.
We shall now deal with Somati (PW-6) and Raghubir
(PW-7), the witnesses on whom the prosecution places
reliance for the purpose of the last seen theory.
However, before we deal with these two witnesses, it
would be pertinent to mention that the prosecution had
also examined one Smt. Puniya as PW-5, who has turned
hostile. We are recording this fact because her name
finds mention in the statement of both these witnesses.
According to Somati (PW-6) at about 12 noon when she
was present at her well, Gajraj Singh, who was in his
residence was called by accused Imrat Singh, who informed
Gajraj Singh that they will consume liquor together and
thereafter her father-in-law Gajraj Singh left with Imrat
Singh. She also states that later Puniya (PW-5) told her
that she (Puniya) had seen accused Imrat Singh and Hetam
Singh beating Gajraj Singh. According to this witness,
her brother Har Bilas and one Mahender Singh came to her
house and she informed them that her father-in-law had
been beaten. According to this witness, she was informed
about the beating of her father-in-law by Puniya (PW-5)
who has not supported her version. She herself had not
seen her father-in-law being beaten by anybody. In fact,
this witness in cross-examination states that it was not
Puniya who told her about Imrat Singh and Hetam Singh
beating Gajraj Singh but this fact was told to her by her
brother Har Bilas. As far as Raghubir (PW-7) is
concerned, he states that the accused Imrat Singh came at
about 2 pm. and in his presence told Gajraj Singh to
accompany him since they had prepared mutton.
Interestingly, Somati (PW-6) had not stated that Raghubir
(PW-7) was present when Imrat Singh came. Their version
about the enticement given to Gajraj Singh is different.
According to Somati it was liquor which was offered
whereas according to Raghubir (PW-7) it was mutton which
was offered to Gajraj Singh.
Raghubir (PW-7) also states that he was informed by
Puniya that she had seen Imrat Singh and Hetam Singh
beating Gajraj Singh. According to him, thereafter he
along with Har Bilas and Mahender Singh went towards the
jungle and saw Gajraj Singh lying dead. He further states
that then he went to the village and told Lakhan Singh
and Man Singh that the dead body of Gajraj Singh was
lying in the jungle. He then stated that the dead body
was lying in the river. According to him, Lakhan Singh
and Man Singh told him that they had already seen the
dead body of Gajraj Singh which is not the case of Lakhan
Singh at all.
The only other important witness to whom the
reference is being made is Har Bilas (PW-15). He states
that he was informed by Somati that Gajraj Singh had been
called by Imrat Singh and both had left together.
According to him, Puniya reached there and informed that
Gajraj Singh had been taken by Imrat Singh and Hetam
Singh and he was beaten by them. Thereafter, he along
with Mahender Singh and Raghubir went in search of Gajraj
Singh and saw the body of Gajraj Singh lying in the
river. He states that he saw no injuries on the body of
Gajraj Singh which is difficult to believe because the
prosecution story is that Gajraj Singh was beaten to
death by the five accused with lathis. The versions of
Har Bilas and that of Lakhan Singh (PW-10) are totally
different. According to Lakhan Singh (PW-10) when Har
Bilas (PW-15) came to the village, he did not know
anything and it was only Raghubir who came and informed
that Gajraj Singh was dead. This casts a serious doubt on
the prosecution story.
Another factor which we have taken into
consideration is that a number of very important
witnesses who should have been examined have not been
examined. Neither Bhagwan Dass the potter who was
supposed to meet Harnam Singh in Bharon Kalan nor any
other person from Bharon Kalan have been examined to
support the version of Lakhan Singh (PW-10) and Ram Singh
(PW-11) that they actually went to Bharon Kalan.
The villagers who were first told about this
incident by Lakhan Singh (PW-10) and Ram Singh (PW-11)
have not been examined. The Head Constable who is alleged
to have not recorded the FIR and said that he would wait
for the SDOP has not been examined. The SDOP/Deputy
Superintendent of Police has not been examined. The FIR
has been recorded admittedly after visiting the spot by
the police and, therefore, there is a possibility that
the story could have been concocted after seeing the site
and conferring with all the villagers. It has come on
record that Gajraj Singh was not a very popular man. He
had a lot of enemies. It has also come in evidence that
almost all the witnesses have some criminal antecedents
and some cases are pending against them. It may be true
that there was enmity between the two sides. Enmity, as
is often said is a double edged sword. It can be the
motive but it can also be a reason to falsely implicate
the other side. In the present case, keeping in view the
various contradictions pointed out above and the fact
that in view of the contradictions it is difficult to
rely upon the statements of Lakhan Singh (PW-10) and Ram
Singh (PW-11) as well as Somati (PW-6) and Raghubir (PW-
7), we are of the view that a doubt has been cast and the
benefit of doubt has to be given to the accused.
We are of the view that the High Court and the Trial
Court did not take into consideration these
contradictions of the witnesses and relied upon the
witnesses especially Lakhan Singh (PW-10) and Ram Singh
(PW-11) without referring to the attending circumstances
to which we have referred to in detail hereinabove. In
view of the above discussion, we allow the appeal, set
aside the conviction of both the Courts below. Accused
are acquitted accordingly. Accused are on bail. Their
bail bonds are discharged.
New Delhi October 24, 2019
Criminal Appeal No(s).480/2009
IMRAT SINGH & ORS. Appellant(s)
VERSUS
THE STATE OF MADHYA PRADESH Respondent(s)
Date : 24-10-2019 This appeal was called on for hearing today.
CORAM :
For Appellant(s)
Ms. June Chaudhary, Sr. Adv.
Mr. Shikhil Suri, Adv. (A.C.)
Mohd. Parvez Dabas, Adv.
Mr. Uzmi Jameel Husain, Adv.
Ms. Shilpa Saini, Adv.
Mr. Shakil Ahmed Syed, AOR
For Respondent(s)
Mr. Rahul Kaushik, AOR
Ms. Bhuvneshwari Pathak, Adv.
Ms. Shilpi Satyapriya Satyam, Adv.
UPON hearing the counsel the Court made the following
O R D E R
The appeal is allowed in terms of the signed reportable
judgment.
Pending application(s), if any, stands disposed of.
(signed reportable judgment is placed on the file)