Rajeev Gupta, J.@mdashThis judgment shall govern the disposal of Criminal Appeal No. 695/1987 also, which is an appeal filed by these very
three Appellants'' from jail, against their conviction and sentences.
2. Appellants Dashrath, Chaitu and Sampat stand convicted u/s 302 and in the alternative u/s 302 read with 34, of the Indian Penal Code (for
short the IPC), with sentence of imprisonment for life vide judgment dated 24.3.1987, passed by Additional Sessions Judge, Betul in Sessions
Trial No. 37/86.
3. The factual matrix of the case, in a narrow compass, is that Thaggi Bai, daughter of accused Dashrath, was married to Paras Ram (since
deceased). On the fateful day of 1.12.85, Paras Ram and his wife Thaggi Bai had gone to the field of accused Dashrath, on his invitation, for the
celebration of Kartik festival and for attending the feast. As Paras Ram did not return to his house that night and in the next morning Anandrao
informed Shikari, father of Paras Ram, that he had heard some uproar in the night, Shikari, on getting suspicious, went to the field of accused
Dashrath and found his son Paras Ram lying injured inside the hut. Accused Dashrath, Chaitu and Sampat were also present there. On the querry
of his father, Paras Ram informed him that during some altercation between them the three accused persons had assaulted him by means of fist,
kicks and stones. Shikari then brought injured Paras Ram to his village. Paras Ram, on his way to the police station, succumbed to his injuries.
Thereafter, the First Information Report about the incident was lodged by Shikari, at 5.45 p.m., on 3.12.87, giving rise to the registration of a case
at Crime No. 328/87, at police station Multai, for an offence u/s 302 read with Section 34, of the IPC. After observing the necessary formalities,
the body of deceased Paras Ram was sent for post-mortem examination. The Autopsy Surgeon found two contusions and 10 abrasions on his
body, as detailed in his post-mortem Report (Ex.P/5). In his opinion, the cause of death of deceased Paras Ram was coma and shock resulting
from the injuries on the head region and the left lung. During the course of investigation, the accused persons were arrested and in pursuance of the
information, one lathi each from accused persons Dashrath and Chaitu, and a piece of stone from Sampat was seized, on 7.12.85. After
completing the investigation, police Multai charge-sheeted the three accused persons for the commission of the offence u/s 302 read with Section
34, of the IPC.
4. The accused persons abjured their guilt and pleaded false implication to the charges, framed by the trial Court, u/s 302 and in the alternative u/s
302 read with 34, of the IPC.
5. At the trial, prosecution examined as many as 12 witnesses, whereas the accused persons did not examine any witness in their defence. The trial
Court, on the ocular and medical evidence on record, held it proved that deceased Paras Ram had sustained multiple external injuries with
corresponding fractures, on 1.12.85, and had died a homicidal death. Relying upon the eye-witness account of Thaggi Bai (PW/2), the trial Court
held the accused persons guilty of commission of murder of deceased Paras Ram and, therefore, convicted and sentenced them as mentioned
above.
6. Shri S.I. Tiwari, the learned Counsel for the Appellants, contended that the trial Court has erred in recording the Appellants'' conviction on the
solitary evidence of Thaggi Bai (PW/2), whose evidence suffers from serious infirmities. In the alternative, it was submitted that the acts of the
Appellants, in the facts and circumstances of the present case, would only amount to the offence punishable u/s 304 Part (I), of the IPC, and for
that Appellants have already served out sentence of more than 12 years. Shri Riyaz Mohammad, the learned Government Advocate, on the other
hand, supported the impugned judgment of conviction and vehemently argued that the solitary evidence of Thaggi Bai (PW/2) is sufficient for
establishing the charge of murder against the Appellants and, therefore, no interference, in this appeal against conviction, is warranted.
7. The facts that deceased Paras Ram had sustained multiple external injuries, on 1.12.85, and had died a homicidal death were neither disputed at
the trial nor are under challenge before us in this appeal. Even otherwise, there is overwhelming ocular and medical evidence on record for
establishing the above facts beyond any shadow of doubt and, therefore, we uphold the findings, recorded by the trial Court in that behalf.
8. The Appellants'' conviction is founded on the sole eye-witness account of Thaggi Bai (PW/2), who happens to be the wife of deceased Paras
Ram. True, she is also the daughter of accused Dashrath, but it has come in her evidence that on account of some dispute they were not on visiting
terms with the accused persons. The incident of assault on deceased Paras Ram is said to have taken place in the night of 1.12.85. The First
Information Report Ex.P/1 came to be lodged only at 5.45 p.m. on 3.12.85 i.e. after about 44 hours of the incident. There is no satisfactory
explanation on record as to why the report could not be lodged for about 2 days.
9. Though Thaggi Bai (PW/2) claims hereself to be an eye-witness of the incident of assault on her husband Paras Ram, but in the First Information
Report (Ex. P/l), lodged by Shikari, father of the deceased, on the basis of the information given by deceased Paras Ram himself, there is not even
a whisper about Thaggi Bai having witnessed the assault on her husband. That apart, the case diary statement of Thaggi Bai was recorded on
4.12.85 i.e. after 3 days of the incident.
10. Thaggi Bai (PW/2), with a view to make her claim as an eye-witness strong, deposed that she too was assaulted by the accused persons.
There is no material on record to show that Thaggi Bai was ever examined medically for any such injury, or nay such injury was found on her
person by the Doctor. Not only this, even in the First Information Report there is no mention that Thaggi Bai was also assaulted by the accused
persons.
11. Thaggi Bai (PW/2), contrary to the prosecution case, as unfolded in the First Information Report (Ex.P/1), stated in her deposition in the Court
that the three accused persons had assaulted her husband Paras Ram by means of lathis, whereas the initial prosecution case was that the assault
on the deceased was by means of fist, kicks and small stones.
12. True, accused Dashrath is related to Thaggi Bai (PW/2) as her father and the other two accused persons Chaitu and Sampat too are related to
her as uncles. A witness, so closely related to the deceased and the accused, is not normally expected to depose falsely against his/her own
relatives, but in the present case Thaggi Bai (PW/2) has categorically admitted in para 9, of her deposition, that there was some dispute persisting
between her husband and the three accused persons on account of which she and her husband were not on visiting terms with the accused
persons. The above admission of Thaggi Bai. about the strained relations between deceased Paras Ram and his wife on the one hand and the three
accused persons on the other, takes out the very bottom of the prosecution case that the deceased had gone to the field of the accused persons on
their invitation.
13. From the above close scrutiny of the evidence on record, it emerges out that the relations between the accused persons and deceased Paras
Ram were strained for quite sometime; though the incident of assault on the deceased leading to his death is said to have taken place in the night of
1.12.85, but the First Information Report came to be lodged only in the evening of 3.12.85; the case diary statement of the sole eye-witness
Thaggi Bai (PW/2) was recorded on 4.12.85 i.e. ...after 3 days of the incident; the initial story as contained in the First Information Report was
that the assault on the deceased was by means of fist, kicks and small stones, whereas in her deposition in the Court, the sole eye-witness Thaggi
Bai (PW/2) came out with a story that the accused persons had assaulted her husband Paras Ram by means of lathis; though Thaggi Bai also
claims to have been assaulted by the accused persons, but neither this fact was mentioned in the First Information Report, nor any injury
whatsoever is proved to have been found on her person. There is not even an iota of any other evidence which can be used as corroboration to the
evidence of Thaggi Bai. In our considered view the uncorroborated evidence of Thaggi Bai (PW/2) alone, which is found impregnated with the
above mentioned glaring infirmities, by itself, is not sufficient for establishing the capital charge of murder against the three Appellants. Her evidence
falls short of furnishing the foundation, strong enough, for basing the Appellants'' conviction on the charge of commission of murder of Paras Ram.
The trial Court obviously has fallen into an error in not giving due weight to the above mentioned infirmities in the evidence of the sole eye-witness,
Thaggi Bai (PW/2). The Appellants'' conviction, therefore, cannot be sustained and is liable to beset aside.
14. For the foregoing reasons, the appeal, filed by the Appellants, against their conviction and sentences, deserves to be allowed and is hereby
allowed. Their conviction u/s 302 and in the alternative under Sections 302 read with 34, of the Indian Penal Code, and sentence of imprisonment
for life are hereby set aside. They are acquitted of the above charges.
15. Appellants Dashrath, Chaitu and Sampat are in custody. They be set at liberty forthwith, if not wanted in connection with any other case.