VIJAY Vs. STATE OF M.P.

JUDGEMENT

(1.) IT appears that the trial Judge was very much impressed by the evidence given by Constable Virendrasingh (PW 1), although, in our opinion, his testimony did not deserve that much credence, because in the report (Ex. P -1), lodged by him, he had mentioned the names, of a number of persons, but, in the Court, he was able to identify only the present appellants Vijay and Ramesh, as the persons who had thrown stones and he could not identify the other accused persons and the explanation given by him, was that their features had changed and, so, he could not give their names also, but this explanation appears to have been given by this witness, in all probability, to save those persons whose names he had mentioned in the report (Ex. P -1). Besides this, Virendrasingh (PW1) had put his hand on Sunil Kumar, Buddhu, Raju, Sanjay and Pappu and had stated that they were also among the persons who were assaulting with stones, but, during his cross -examination, his contention was that he could not give the names of these persons, because their feature had changed. The explanation given by this witness that he could not give their names, because their features had changed, appears to be ridiculous, because, even if the features of the persons change, their names do not change, as had been admitted by this witness to be correct. The version of Virendrasingh (PW1) that Vijay and Ramesh sweeper were among those persons who were throwing stones, does not find corroboration from the versions of Vijaysingh (PW2) and Narendra Kumar (PW 3) - although they had also gone to the spot along with Constable Virendra Singh (PW1). Both these witnesses Vijaysingh and Narnedra Kumar have neither named nor identified any of the accused persons during the trial.

(2.) THE fact that the present appellants were among those persons who were throwing stones, as narrated by Constable Virendarsingh (PW 1); does not find place in the report (Ex. P -1) and in the case -diary statement (Ex. D -1) of this witness, and this was a material omission in the report and the case -diary statement. It is a subsequent improvement made by this witness Virendrasingh in the statement given by him in the Court. Besides this, it appears form the version of Virendrasingh (PW1) that, when he reached he saw 40 -50 persons coming on the road in front of the house of Satish Bhatia, and, when he had started, 30 -40 persons came out of the lane towards the house of Satish Bhatia and that, 10 -15 persons were standing at the mouth of the lane and that, Vijay and Ramesh Sweeper were also standing at the mouth of the lane. This shows that this witness Virendrasingh had only seen the present two appellants Vijay and Ramesh Sweeper standing at the mouth of the lane and; so also, the version given by this witness that they were among the persons throwing stones, does not appear to be reliable, and more so, when the fact of throwing stones by persons, does not find place in the report (Ex. P -1) and the case diary statement (Ex. D -1) of Virendrasingh (PW 1). Satish Bhatia (PW 6) was present inside his house at the time of the incident and he heard the noise in the lane out -side, but he had not supported the prosecution version regarding the incident, because, according to him, he had closed the doors of his house from inside. Rameshchandra Sharma (PW 7) and Anand (PW 9) have also not supported the prosecution version regarding the incident.

(3.) EVEN if the Constable Virendra Singh (PW1) had seen the present appellants standing near the mouth of the lane, when he reached there, this evidence, in itself, would not be sufficient to hold that they were also the members of an unlawful assembly - - as was also the view expressed in AIR 1976 SC 2566 (Musakhan and others v. State of Maharashtra). Appeal allowed.