RAMKRIPAL ALIAS BHALLU Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Appellant's family had old and deep-rooted enmity with the family of Ganga Prasad (deceased). On 9-3-1985 Ganga Prasad had thrown car-cass of his Ox in his field which started emitting such obnoxious odour that labourers working at the construction site of the appellant stopped work. Though Ganga Prasad promised to remove the car-cass on being asked by Ramkripal he had not done so till 11-3-1985. On that date at 7-00 a.m. weilding a licensed single barrel 12 bore gun he went to the house of Ganga Prasad to remind him in this behalf. These facts are not disputed.

(2.) As per prosecution, the appellant demanded as to why the car-cass was not removed and on Ganga Prasad saying that he will get it removed no sooner the sun was bit warmer, the appellant hurled filthy abuses at him and shot him dead on the spot. His mother Gujratiya came there and protested only to be shot dead by the appellant. The defence version is that Ganga Prasad and his sons tried to snatch away the gun from the appellant and in that process the fire-arm accidentally went off killing both the deceased. The appellant along with his four sons was tried on charge of riot, attempt to commit murder of Jagdish (P.W. 1) by shooting with fire arm at him which missed and for murder of the two deceased. Vide judgment, dated 1-10-1986, passed in Sessions Trial No. 115/85 of Rewa Sessions Division, the story of riot and attempted murder of Jagdish Prasad was held not proved and the sons were acquitted whereas the appellant though acquitted under Ss. 148 and 307, IPC was convicted on two counts under S. 302, IPC for the aforesaid twin murders and sentenced to life imprisonment on each count which is under challenge in this appeal.

(3.) The submission is that though the incident was witnessed by independent persons none of them was cited as prosecution witnesses. The evidence of Jagdish Prasad and Nandini Prasad (P.W. 2) both brothers of deceased Ganga Prasad and Kamlabai (P.W. 3) widow of the said deceased being partisan was erroneously accepted as reliable in preference to the evidence of defence witness Vanshpati who was admittedly present on the scene of occurrence more so because the evidence of aforesaid prosecution witnesses in relation to the four acquitted accused persons was held unreliable. Ashutosh Kumar (P.W. 9) has been falsely projected to be an independent witness. Then he is not resident of the village and, therefore, was wrongly held reliable. Reliance was placed on Ramlakhan Singh v. State of U.P., AIR 1977 SC 1936 : 1977 Cri LJ 1566 and some other citations in support of the proposition that non-examination of independent witness though available rendered the prosecution case so infirm that the accused became entitled to acquittal. It is certainly not an absolute proposition of law having universal application. True it is that non-examination of independent available witnesses introduces an element of infirmity in the prosecution case yet whether the same will assume fatal proportion will depend on the facts and circumstances of each case. In this case, the eye-witnesses examined, viz., Jagdish Prasad, Nandini Prasad and Kamlabati are inmates of the house of the deceased. The incident took place early in the morning at 7-00 a.m. They were, therefore, supposed to be at home and are, therefore, natural witnesses. Though Ashutosh Kumar does not bail from the same village yet his name figure in the promptly lodged first information report Ex. P-1. The police station where this report was lodged is at a distance of 5.00 kms from the scene of occurrence and first information report was lodged within 0-30 minutes wherein names of all the eye-witnesses including Ashutosh Kumar are mentioned whose statements were recorded by the Investigating Officer the same day. Ashutosh Kumar has given satisfactory explanation for his presence on the scene of occurrence early in the morning. He has stated that he had gone to the village to engage labourers. He was, therefore, required to be there before the labourers generally set out for work. His village Ataria is as per his statement in para 9 only a kilometer away from the village Garhi where the incident took place. This witness was cross-examined at great length but nothing was elicited to indicate his interestedness. The evidence of Brijbhan Singh (D.W. 2) that he had fought election against Ashutosh who was supported by deceased Ganga Prasad for Sarpanchship of the Gram Panchayat and was declared elected will not render the testimony of Ashutosh found otherwise to be reliable as infirm. This evidence of D.W. 2 is, in our opinion, wholly insufficient to characterise Ashutosh as an interested person in view of his presence on the scene of occurrence finding mention in the promptly lodged first information report. We, therefore, find that the criticism of non-production of independent witnesses is not well founded as Ashutosh Kumar is an independent eye-witness of the incident. The evidence of the eye-witnesses stands firmly corroborated by the prompt first information report Ex.P. 1, and the medical evidence on record. Dr. S. K. Pathak (P.W. 4) who conducted autopsy on both the dead bodies, has given convincing reasons in para 25 of his statement for his conclusion that both the deceased were not hit by a single shot. There could be no difficulty in accepting this opinion because as per the doctor the entry wounds on the body of Ganga Prasad on the chest region had down wards slant and pellets were found on both the lungs, heart and stomach whereas there was single entry wound on the body of the lady Gujratiya on the left abdominal region below the ribs and nine pellets were found inside the body which indicated that the shot was fired from a close range and the pellets did not spread out. We, therefore, agree with the reasonings of the learned trial Judge that the defence story of one single accidental fire killing both the deceased was an impossibility in the circumstances of the case. As per the said doctor Gangaprasad was fired at from a close distance of 10 ft. while the lady was fired at from a comparatively closer range. All this leaves no reasonable doubt whatsoever that the appellant intended to commit the murder of both the deceased persons and with that intention deliberately aimed and fired shots at them. In view of the available reliable eye-witness account of the incident non-production of ballistic expert report and seizure of empty cartridges will have no adverse impact on the case particularly because the firing of the gun which was weilded by the appellant has not been disputed. It is, therefore, held that the ratio of Mohinder Singh v. The State, AIR 1953 SC 415 : 1953 Cri LJ 1761, Santa Singh v. State of Punjab, 1955 Cri LJ 930 and Aswadhesh v. State of M.P., AIR 1988 SC 1158 cited by the appellant's counsel, will have no application to the facts of the present case. It is true that the eye-witnesses produced by the prosecution have implicated the acquitted accused persons as well and that part of their evidence was not held to be reliable beyond reasonable doubt. But this, in our considered opinion, was not sufficient to reject their testimony in relation to the appellant because the same was corroborated by surrounding evidence as well. Though the presence of defence witness Vanshpati on the scene of occurrence has been admitted by the prosecution eye-witnesses yet since the theory of accidental fire resulting in the death of the two deceased persons has been already held as an impossibility the learned trial Judge was justified in rejecting the testimony of Vanshpati who propounded this theory.