Ashok Kumar Joshi, J.-
In this appeal filed by the appellant under Section 374 of the Cr.P.C., challenge is to the impugned judgment dated 08.04.2000 passed by the First
Additional Sessions Judge, Ashoknagar, District Guna in S.T.No.307/1998 whereby Vishambhar Dayal convicted under Section 302/34 of the IPC and
sentenced to life imprisonment.
2- Undisputedly, main accused Arvind is son of appellant Vishambhar Dayal and his wife Rajkumari. Deceased Rajkumar and complainant Dinesh
Kumar (PW-4) and Vipin (PW-5) are real brothers, who are son of Pushpa Devi (PW-6), and Shambhu Dayal. Appellant Vishambhar Dayal and
Shambhu Dayal were real brothers and on the date of incident i.e. 21.03.1998, both brothers were living separately in different portions of a house
having a common wall between their portion with their family. At the time of trial of present appellant Vishambhar Dayal with his wife Rajkumari
before the trial Court, their son Arvind was absconding.
3- Prosecution case in brief is that complainant-Dinesh Kumar Shrivastava (PW-4) lodged FIR (Ex.P-9) on 21.03.1998 at 01:10AM at Police Station
Ashoknagar to the effect that he was doing work of supply of bricks at Ruthiyai and complainant returned to his house situated at Ashoknagar on
20.03.1998 at 22:30hrs and in the intervening night between 20/21March, 1998 complainant Dinesh (PW-4) was talking with his younger brother Vipin
(PW-5), elder brother Rajkumar and father Shambhudayal because his father wanted to sale the house of their portion, but after hearing the talking
between complainant and his family members, his aunty Rajkumari and his son, who were residing in their adjacent portion, started hurling abuses to
complainant and his family. After hearing abuses, complainant and his family members told to Rajkumari that they should not hurl abuses and invited
them for coming out from the house, and talking. At about 12:45 complainant, his brother and parents came out from their portion to the platform of
their house, then complainant's uncle Vishambhar Dayal having a stick in his hand and his wife Rajkumari hurling abuses came out from their portion
of house. Complainant was standing ahead then appellant Vishambhar Dayal pushed Dinesh, hence, he fell down, then appellant's son Arvind with the
intention to kill inflicted a ballam injury into the abdomen of complainant's elder brother Rajkumar and, thereafter, Arvind also inflicted ballam injuries
to the complainant Dinesh and his younger brother Vipin. Dinesh received ballam injury on his hip and Arvind also gave ballam's blows to Vipin, which
caused injury on his right thigh and both hands. Vishambhar Dayal with intention to kill Vipin, gave stick blow to him and at that time Rajkumari was
hurling abuses and was saying that she would see that how they sale the house. After receiving ballam injury in the abdomen, Rajkumar fell down,
which was taken by the complainant and his family members from a tractor and trolley driven by Rambabu towards Police Station Ashoknagar but on
the way Rajkumar succumbed. After reaching to Police Station Ashoknagar in the midnight at 01:10AM complainant Dinesh lodged FIR (Ex.P-9)
which was scribed by TI, A.K.S.Gaur (PW-7).
4- T.I., A.K.S.Gaud (PW-7) on 21.03.1998 in the morning, issued suffina form (Ex.P-13) and in presence of panch-witness after inspecting dead body
of Rajkumar Shrivastava prepared inquest memo (Ex.P- 14) and sent the dead body for postmortem to Ashoknagar hospital. In same morning, after
inspecting the spot, Investigation Officer, AKS Gaur prepared a spot map (Ex.P-1) and from scene of occurrence seized blood clotted soil and plain
soil vide seizure memo (Ex.P-3) and, thereafter, seized a ballam, (on iron blade of which blood was clotted) lying at scene of occurrence and seized it
vide seizure memo (Ex.P-2). On same day appellant, Vishambhar Dayal and his wife Rajkumari were arrested vide arrest memo (Ex.P-15). On the
basis of disclosure (Memorandum P-4) by appellant Vishambhar Dayal, on production by Vishambhar Dayal a bamboo stick (Lathi) was seized vide
seizure memo (Ex.P-5) and on same day blood stained pant of Vipin was seized vide seizure memo (Ex.P-16) and complainant Dinesh's pant, green
coloured shirt and vest (baniyan) were also seized vide seizure memo (Ex.P-10). During investigation, statements of all relating prosecution witness
were recorded by AKS Gaur and the seized material was sent to FSL Sagar with a letter (Ex.P-17) singed by Superintendent of Police, Guna. After
completing investigation, charge-sheet was filed against the Vishambhar Dayal and his wife describing the third accused Arvind as absconder in the
Court of JMFC Ashoknagar, who committed the case to Sessions Judge, Guna and the Sessions Judge transferred the session trial to above-
mentioned trial Court.
5- Trail Court framed charges for the offences punishable under Section 302/34 and Section 307/34 of IPC (on two counts) against the present
appellant Vishambhar Dayal and his wife Rajkumari which were denied. Seven prosecution witnesses were examined before the trial Court. It was
the defence of appellant Vishambhar Dayal and his wife before the trial Court that they have been falsely implicated as they were having dispute
regarding partition of their house with complainant's family and in this regard a civil suit relating to partition of house was pending before the civil
Court. No any defence witness was examined before the trial Court on behalf of present appellant and his wife. After hearing, trial Court recorded its
finding that no offence was found proved against wife of the appellant Rajkumari hence, trial Court acquitted Rajkumari from all charges framed
against her and trial Court found that the charged offence under Section 307/34 of IPC (on two counts) in relation to complainant Dinesh and Vipin
was not proved against Vishambhar Dayal, but it was found proved that in furtherance of common intention of appellant Vishambhar Dayal and his
absconding son Arvind, Rajkumar was killed by appellant's son Arvind hence, trial Court convicted and sentenced the present appellant for offence
punishable under Section 302/34 of IPC as aforesaid.
6- Appearing counsel for the appellant Vishambhar Dayal has vehemently contended that there were material contradictions and inconsistencies in the
evidence of complainant Dinesh (PW-4), his younger brother Vipin (PW-5) and their mother Pushpa Devi (PW-6) regarding their respective police
statement recorded during investigation in relation to role of the present appellant Vishambhar and his wife Rajkumari but the trial Court overlooked all
material contradictions and inconsistencies appearing in their evidence. It is further argued that it was proved that the complainant's family in the
midnight called the appellant and his family to come out from their house portion for talking and it was clear from the evidence of complainant's
mother Pushpa Devi (PW-6) that appellant Vishambhar Dayal came on spot with empty hands, but he was falsely implicated in the crime due to
dispute regarding partition of house and in relation to pending civil suit of this house.
7- It is further argued that it is clear from the FIR (Ex.P-9) lodged by complainant that ballam injuries to all the three brothers Rajkumar, complainant
Dinesh Kumar and Vipin were caused only by Arvind, but complainant and his family members made substantial improvement in their Court's
evidence regarding role of Vishambhar Dayal and his wife Rajkumari and on same evidence, appellant's wife Rajkumari was totally acquitted by the
trial Court and even the trial Court acquitted appellant in relation to charged offence of Section 307/34 of IPC (on two counts), but the trail Court
erred in convicting the appellant for the offence punishable under Section 302/34 of IPC on same evidence. Therefore, it is prayed that appeal filed by
present appellant Vishambhar Dayal be allowed and he be acquitted also from the charge of Section 302/34 of IPC.
8- It has also been intimated by the learned counsel for the appellant Vishambhar Dayal that allegedly his absconding son Arvind Shrivastava was
later on tried and vide judgment dated 18.03.2005 passed by First Additional Sessions Judge, Ashoknagar in S.T.No.141/2002, acquitted from the
charge of Section 302 of IPC, but was convicted and sentenced only under Section 304 Part-1 of IPC and Section 324 of the IPC for causing injury to
Vipin and sentenced under Section 304 (first part) of the IPC for period already undergone and under Section 324 of the IPC, Arvind was sentenced
only with a fine of Rs.1,000/-.
9- Per contra learned Public Prosecutor appearing on behalf of respondent/State supporting the impugned judgment contends that trial Court has
properly and legally analyzed and appreciated the entire evidence available on record and did not err in convicting and sentencing the appellant
Vishambhar Dayal for charged offence under Section 302/34 of IPC as the maxim ""falsus in uno falsus in omnibus"" is not applicable in Indian Judicial
system therefore, dismissal of the appeal is prayed.
10- Dr.Natwar Singh (DW-3) deposed that on 21.03.1998 at Ashoknagar hospital, at 11:00am he started postmortem of dead body of deceased
Rajkumar Shrivastava aged about 30 years and found that his worn shirt, pant, underwear were blood stained and rigor mortise was present and found
an incised wound over left iliac fossa portion of the abdomen, size 4x1.5cm and deep up to abdominal cavity and from that wound a loop of omentum
and lower part of large intestine about 11cm long was coming out from the body and blood was clotted at the margins of this incised wound and it was
obliquely placed, which has pierced omentum and mesentery, which were also having wound of same size and blood clots were present in abdominal
cavity.
11- Dr. Narwar Singh (PW-3) opined that deceased had died due to shock, as a result of above-mentioned injury caused on body, he died within 6 to
24 hrs. from the starting of postmortem. Dr. Natwar Singh proved his signature on postmortem report (Ex.P-8). It is clear from the medical evidence
and other evidence available on record that deceased Ramkumar met with a homicidal death and even this fact has not been challenged by the
appellant's counsel.
12- Complainant Dinesh Shrivastava (PW-4) and his brother Vipin (PW-5) and their mother Pushpa Devi (PW-6) gave their evidence as eye
witnesses. Vipin  (PW-5) deposed in his cross-examination that his father Shambhudayal expired on 07.08.1998, hence, Shambhudayal could not be
examined before the trial Court as a witness. Complainant Dinesh Kumar (PW-4) deposed that deceased Rajkumar was his elder brother and in the
intervening night of 20/21March, 1998, he returned from Ruthiyai to Ashoknagar in the night, as at that time, he was living at Ashoknagar with his
family, though he was working at Ruthiyai and after returning to Ashoknagar, after taking meal, he was talking with his brother Rajkumar, Vipin and
mother Pushpa Devi on the point that they are having half share in house and after selling their half share, they should construct a new house at
Ruthiyai, but after hearing their conversation, his aunty Rajkumari hurling abuses from her side as there was only a common wall between these
portions and at that time his father (Shambhudayal) was sleeping, but his father got awaken due to hurling abuses by Rajkumari and his father asked
that why she is making noise and came out from house and negotiate on the mater.
13- Complainant Dinesh also deposed that at midnight about 12:45am, firstly he came out from their portion, after opening their door and behind him
Vipin, his mother came out and called the accused persons to come out, then Rajkumari, thereafter, her son Arvind and lastly uncle Vishambhar Dayal
came out and as he proceeded towards uncle to explain him, appellant Vishambhar Dayal pushed him and he fell down, then Rajkumari inflicted a
ballam Injury in his leg and when his younger brother Vipin tried to save him, then Arvind tried to cause ballam injury to Vipin, but Vipin caught hold
the ballam by his hands, thereafter, Vishambhar Dayal took ballam from the hand of Rajkumari and caused ballam injury in the leg of Vipin and,
thereafter, then appellant's son Arvind inflicted ballam injury in the abdomen of his elder brother Rajkumar who was standing behind them and after
receiving ballam injury Rajkumar fell down, who was taken to police station by tractor and trolley, but later on, in the hospital, Rajkumar was declared
died. Complainant proved his signature on FIR (Ex.P-9) and seizure memo (Ex.P-10), whereby his blood stained pant, underwear and high neck t-shirt
were seized during investigation.
14- It is clear from the complainant (PW-4)-Dinesh Kumar's examination-in-chief that appellant Vishambhar Dayal was not having any weapon in his
hand, when appellant came out from his house for talking with the complainant's family, whereas in FIR (Ex.P-9), it was mentioned by complainant
Dinesh Kumar that appellant came out from his house portion with a stick. It was clearly mentioned in FIR by Dinesh Kumar that appellant
Vishambhar Dayal also gave lathi blows to Vipin for killing him, but Dinesh Kumar has not deposed this fact in his examination-in-chief. Hence, it is
clear that there are material contradictions regarding the role of present appellant Vishambhar Dayal and his alleged weapon in complainant Dinesh
Kumar's evidence and his FIR (Ex.P-9).
15- Vipin (PW-5) clearly deposed in his examination-in-chief (para-1) that his father Shambhudayal called his uncle Vishambhar Dayal for talking,
then Rajkumari and Arvind came out with ballam, but at that time uncle (Vishambhar Dayal) came with empty hands, though Vipin deposed that
Vishambhar Dayal pushed Dinesh and Dinesh fell down, then Rajkumari inflicted ballam injury on hip of Dinesh. Their mother Pushpa Devi (PW-6)
deposed in cross-examination that when in night Rajkumari was hurling abuses for a period of about 1hrs, then her husband Shambhudayal told that
why she is giving abuses and they be called out for talking. Pushpa Devi (PW-6) deposed that his dever (present appellant), his wife and their son
came out from their house portion and appellant Vishambhar Dayal after giving abuses, told that heads would be cut off and when dinesh asked that
uncle what are you saying, then appellant pushed Dinesh, so he fell down. Pushpa Devi did not depose about any weapon of present appellant and
similarly she has not deposed regarding inflicting of stick injuries by present appellant to any one. In her examination-in-chief (para-4) she has clearly
deposed that her brother-in-law (dever) i.e. Vishambhar Dayal came out with empty hands.
16- Therefore, it is clear that complainant's real younger brother Vipin (PW-5) and his mother Pushpa Devi have clearly deposed that present
appellant was not having any weapon at the time of incident, hence, the evidence of complainant Dinesh on the point of weapon of the appellant is
contradicted and falsified by his above-mentioned brother. It is also clear that in FIR, it was mentioned by complainant Dinesh Kumar that appellant
came out from his house with a stick, but both these close relatives of complainant, Vipin (PW-5) and Pushpa Devi (PW-6) did not depose about any
weapon of the appellant, but the evidence of both these eye-witnesses was not challenged by the prosecution, hence, it is clear in the light of the case
of Kishan Vs. State of M.P reported as 1995 JLJ 353, that the evidence of Vipin and Pushpa Devi regarding appellant's coming on the scene of
occurrence with empty hands is binding on prosecution as it is unchallenged, hence, it is clear that complainant Dinesh Kumar had mentioned totally
false facts regarding weapon (stick or lathi) of the appellant and beating by it in the FIR.
17- It is clear from total evidence of these eye-witnesses that prior to the incident there was a dispute between family of the complainant and
appellant regarding partition of joint family house and a civil suit was pending before civil Court regarding partition of that house. It would be
significant to mention here that there were material contradictions and improvements in evidence of all these three witnesses regarding role and
weapon of acquitted accused Rajkumari (wife of present appellant) and due to these contradictions and inconsistencies, trial Court rightly acquitted the
wife of appellant from the charges framed against her.
18- Regarding seizure of a stick (lathi) on the basis of disclosure statements of appellant, after his arrest, investigating officer AKS Gaur (PW-7) has
deposed that on 21.03.1998, appellant was arrested vide arrest memo (Ex.P-15) and on the basis of disclosure statement (memorandum P-4) recorded
under Section 27 of the Evidence Act) of appellant, he seized a bamboo stick (Lathi) on production of appellant from his house vide seizure memo
(Ex.P-5), but on this point also, both panch-witnesses Hemraj (PW-1) and Bhaiyalal (PW-2) of these memorandum and seizure memo have not
supported the evidence of above-mentioned investigating officer AKS Gaur and each of these panch-witnesses has clearly deposed that present
appellant Vishambhar Dayal was not interrogated by police in their presence and nothing was seized from appellant in their presence, though they
have admitted their signatures on above-mentioned memorandum and seizure memo.
19- Surprisingly both of these panch-witnesses of relating disclosure and seizure memo were not declared hostile by the prosecution, hence, their
evidence is also binding on the prosecution, which falsify the evidence of investigating officer on this point. Seized lathi was even not sent to FSL
Sagar, which is clear from the letter (Ex.P-17) dated 13.05.2018 sent by Superintendent of Police Guna to Director, FSL Sagar. Hence, the evidence
regarding seizure of a stick or lathi from appellant is immaterial and inconclusive also. Both of these above-mentioned panch-witnesses Hamraj (PW-
1) and Bhaiyalal (PW-2) gave evidence in one voice that in their presence from scene of occurrence, a ballam and a lathi were seized which were
lying on the spot and they have also proved their signatures on relating seizure memo (Ex.P-2) prepared by investigating officer AKS Gaur (PW-7),
but AKS Gaur has deposed that vide seizure memo (Ex.P-2), he had seized only a ballam, lying on the scene of occurrence. Unchallenged evidence of
both of these panch-witnesses makes the testimony of investigating officer doubtful and unbelievable regarding seizure of stick from appellant.
20- It appears that investigating officer A.K.S. Gaur (PW-7) had created evidence about recovery of Lathi or stick on the basis of alleged disclosure
statement of appellant. Hence, it is clear from unchallenged testimony of both of these panch witnesses that the investigation conducted by above-
mentioned investigating officer AKS Gaur (PW-7) was not bonofide and genuine, but he create false evidence regarding recovery of stick on the basis
of disclosure statement of appellant. Such defective and partial investigation adversely affects the veracity of prosecution's case in reference to
present appellant.
21- There are material contradictions and omissions in police statements of each of these three eye-witnesses in comparison to their evidence given
before the trial Court. Such contradictions and omissions were established in cross-examination of these eye-witnesses and investigating officer.
Complainant Dinesh Kumar (PW-4) deposed in cross-examination that he has disclosed this fact that after opening his house, he has called out wife of
the appellant out side from her house and she has also disclosed this fact in his police statement that his aunty Rajkumari came with a ballam on spot.
Both these facts are missing in his police statement (Ex.D-1). Similarly Dinesh Kumar deposed in para-8 that he has not mentioned B to B marked
portion of his police statement to the effect that present appellant pushed him by stroke of his stick on his chest, but investigating officer AKS Gaur
(PW-7) deposed that relating portion was disclosed by complainant at the time of recording of his police statement and this fact is missing even in his
detailed FIR (Ex.P-9). Hence, it is clear that complainant Dinesh Kumar from the stage of recording of the FIR and, thereafter, gradually improved
and exaggerated his version regarding role of present appellant in the incident, which clearly establishes his falsehood.
22- Complainant deposed in para-9 that his uncle Vishambhar Dayal caused a ballam injury in thigh of his brother (Vipin) but this fact is not mentioned
in his police statement (D-8). It is clear that complainant has exaggerated all these facts in his evidence regarding role of appellant only to falsely
implicate him in the incident, whereas, it is clear from his FIR (Ex.P-9) that only Arvind has inflicted ballam injuries to deceased Rajkumar, Vipin
(PW-5) and complainant Dinesh Kumar (PW-4). Hence, it is clear that the falsehood introduced by complainant regarding role of his uncle
Vishambhar Dayal and his wife were unlimited and complainant was ready to depose anything against the appellant.
23- Complainant Dinesh Kumar (PW-4) deposed in para-13 of his re-cross-examination that appellant Vishambhar Dayal came with a ballam on spot
and the fact mentioned in his FIR (Ex.P-9) that Vishambhar Dayal came with a stick on spot, is wrong and false and this fact was not mentioned by
him at the time of lodging of FIR.
24- Complainant's mother Pushpa Devi (PW-6) also introduced the exaggeration that prior to inflicting of ballam injury, Vishambhar Dayal told that he
would cut off heads of opposite side, but her evidence on this point is even not supported by her both sons Dinesh Kumar and Vipin. Pushpa Devi
deposed in para-2 that when Vishambhar Dayal was busy in verbal altercation, then his son Arvind came there and told to his father (present
appellant) that he should remove himself from spot and he (Arvind) would teach a lesson to complainant's family.
25- It is clear from the evidence that appellant was called in night, to come out from his house for talking by his elder brother Shambhudayal (father of
the complainant) and it is clear from the evidence of Vipin and Pushpa Devi that appellant was empty handed and it is clear from evidence of Pushpa
Devi that when appellant was talking, then his son Arvind step down his father Vishambhar Dayal and started causing ballam injuries to complainant
and his two other brothers. It is also clear from the evidence that on the scene of occurrence Rajkumar was standing behind complainant, near the
outer door of their house, when he received ballam injury by Arvind. It is clear from the FIR that only Arvind gave ballam injury to these persons. In
such situation, it could not be inferred that Vishambhar Dayal was having common intention with his son Arvind to cause murder of the Rajkumar and
in causing ballam injuries to complainant Dinesh Kumar and his brother Vipin. It is clear that appellant has come out from his house with empty
handed on the invitation of his elder brother for talking on disputed issue.
26- We are of the considered opinion that the learned trial Court totally overlooked the substantial contradictions and inconsistencies prima facia
appearing in evidence and police statements of these above-mentioned three prosecutions witnesses and similarly totally overlooked the substantial
improvements and exaggeration made by these eye-witnesses regarding role of the present appellant Vishambhar Dayal. The conviction as recorded
by the trial Court of the appellant appears to be defective and is not based on proper and legal appreciation of evidence. Appellant's present appeal
appears to be worthy of acceptance.
27- Consequently, the appeal filed by the Vishambhar Dayal is allowed and his conviction and sentence as recorded by the above-mentioned trail
Court are set aside and Vishambhar Dayal is acquitted from the charge of Section 302/34 of the IPC. Appellant Vishambhar Dayal was released on
bail after suspension of his sentence as ordered by this Court on 12.07.2000 passed in this appeal.
28- Appellant's bail bonds are discharged and he is not required to appear before the Registry or any Court in future in relation to this case.
