HARIPRASAD Vs. STATE OF M.P.

JUDGEMENT

(1.) THESE Criminal appeals have been preferred by the appellant against the judgment rendered by Additional Sessions Judge, Rajgarh in Sessions Trial No. 161/92 dated 1 -12 -1996, thereby finding the appellants Ramcharan, Sewaram, Jainarayan, Bansiram, Bhavsingh and Latoor, guilty for the offence punishable under section 148, Indian Penal Code and sentenced each to suffer RI for 3 years and appellants Ramcharan and Rajaram have been convicted for the offence under section 302, Indian Penal Code and sentenced both of them to suffer Rigorous Imprisonment for life. Appellants Hariprasad, Sewaram, Jainarayan, Bansiram, Bhavsingh and Latoor have also been convicted for the offence under sections 302/149 and sentenced each of them to undergo RI for life. All the sentences were directed to run concurrently.

(2.) THE prosecution case Multum in Purvo is that on 1 -6 -1992 in the evening between 7.00 p.m. and 7.30 p.m. Badriprasad (PW 1) and Babulal (PW 3) were returning to their village from the market. When they were crossing forest, on the way, near a tree, situated by the side of small water tank, they witnessed that deceased Jagganath was being assaulted by the appellants Rajaram, Ramcharan and Hariprasad and other appellants by Farsi, ballam, gun and lathis respectively. Appellant Ramcharan dealt ballam blow on the head of the deceased and appellant Rajaram caused injury by Farsi (hard and blunt edged weapon). Both the witnesses Badriprasad (PW 1) and Babulal (PW 3) on seeing the assault, because of fear, ran away towards village. In the village, they disclosed about the incident to Hariprasad (not examined as witness). Thereafter Badriprasad and Hariprasad and other villagers reached on the spot but deceased Jagganath was not available. They made a search nearby and found nude dead body of Jagganath, amongst small plants of teak and clothes of the deceased were also found at some distance. Badriprasad (PW 1) went to Police Station along with Hariprasad, Kanhaiyalal (PW 3) and lodged First Information Report Exh.P/1 at 11.05 p.m. in the night. First Information Report was recorded by Station House Officer, D.S. Chouhan (PW 12). On the basis of the report, the police party reached at the scene of occurrence, inquest of the dead body, Exh.P/2, was prepared. Map is Exh. P/4. Seizure of blood stained clothes of the deceased, blood stained earth and controlled earth, was affected. The dead body of deceased Jagganath was sent for post mortem examination and the same was performed by Dr. P.S. Pal (PW 11). The post -mortem report is Ex. P/29. After usual investigation, charge sheet was filed. The appellant denied charges. Some of the appellants have also pleaded alibi and examined witnesses in defence. The prosecution has examined as many as 14 witnesses whereas defence has examined five witnesses. Learned trial Court convicted and sentenced the appellants for the aforesaid offence as indicated above. Hence this appeal. We have heard learned counsel for the parties and perused the entire record of the case carefully.

(3.) LEARNED counsel for the appellants vehemently canvassed before this Court that First Information Report was concocted piece of document and brought into existence ante date and time. He also submitted that there was delay in lodging First Information Report as well as arresting the appellants. Non compliance of provision of section 157, Criminal Procedure Code throwing doubt on genuineness of First Information Report. Learned counsel has also criticized the evidence of eye witnesses Badriprasad (PW 1) and Babulal (PW 3) on the ground that they are interested, and partisan witnesses being brothers of the deceased. They are also convicted for causing grievous hurt to appellant No. 8 Latoor (in criminal appeal No. 1077/96). According to him, both the witnesses were chance witnesses and their conduct was highly abnormal. Per contra, Mr. Girish Desai learned Deputy Advocate General appearing for the State of Madhya Pradesh, has supported the judgment and findings of conviction arrived at, by the learned trial Court. According to him, merely because eye -witnesses were interested and partisan witnesses, their evidence cannot be disbelieved without strong reason. The conviction of the appellants is mainly based on the testimony of two eye -witnesses Badriprasad (PW 1) and Babulal (PW 3). We have to consider whether both these witnesses could be relied on or not. Both the witnesses have admitted in their statements that they are real cousins of deceased Jagganath and they, along with the deceased had faced criminal prosecution for causing grievous injuries to appellant No. 8 Latoor. In this state of evidence, both the witnesses are ill disposed towards appellants and being relations also interested and partisan. They are also chance witnesses, therefore, the testimony of both the witnesses are required to be looked into and appreciated with great care and caution. We may profitably refer to the judgment of the Apex Court passed in the Case of Bahalsingh vs. State of Haryana, : AIR 1976 SC 2032 wherein it has been held that: If by coincidence or chance a person happens to be at the place of occurrence at the time it is taking place, he is called a chance witness. And if such a person happens to be a relative or friend of the victim or inimically disposed towards the accused, then his being a chance witness is viewed with suspicion. Such a piece of evidence is not necessarily incredible or unbelievable but does require cautious and close scrutiny.