STATE OF MADHYA PRADESH Vs. JAHAVAL SIRATI SAHU

JUDGEMENT

(1.) THIS is a State appeal against acquittal. A small village Kestara with a population of about 400 in district Durg was a scene of gruesome massacre in the evening of 24 -1 -1982. 14 persons, men, women, children and even infants of one Satnami family (a scheduled caste) were butchered. Their house was set on fire. The inmates trying to flee were caught, killed and thrown into the raging flames. Next morning when the police party arrived six charred bodies were recovered from the burnt house and seven partly burnt and brutally cut were lying scattered near the house. Later, charred skull and bones of one more body were recovered from the house. 44 persons, mostly belonging to the Rawat caste, and some Brahmins and a few Satnamies were prosecuted. Some of them were absconding. One namely Suklu died during the pendency of the trial. Thus 41 accused stood the trial before learned Additional Sessions Judge, Durg. Learned Additional Sessions Judge acquitted the accused persons and the State Government has filed the present appeal against the acquittal. Leave for filing appeal was refused against ten respondents. During the pendency of this appeal two respondents, namely Jhulu (R -2) and Ghanaram (R -3) expired and the appeal against them was abated. There was a running feud between the family of the deceased and the Rawats and Brahmins of village Kestara Reports were made by one party against the other and criminal cases had been filed against the family of deceased Gangaprasad as well as the Rawats and Brahmins namely Jaitram, Jhulu and others. Copies of Sanha reports (Ex.P. 20, Ex.P -21, Ex.P -23, Ex.P -24, Ex.P -26, Ex.P -27, Ex.P -30, Ex.P -31, Ex.P - 33 and Ex.P -34) were filed and proved by the prosecution. Proceedings under Sections 107/116 Criminal Procedure Code were initiated against the adult male members of the deceased family and the Rawats of the village some of whom are accused - respondents in this appeal. Ex.P -28 and Ex.P -29 were produced and proved. This fact about enmity between these rival groups was not disputed and the Court below recorded a finding to that effect. According to prosecution because of the previous enmity between the family of deceased Gangaprasad and the Rawats and Brahmins of the village, there had been a fight between Gangaprasad and his brothers on one hand and Ramdayal Shivprasad and Bijeram on the other. As soon as Rawats and Brahmins of the village learnt about this fight, they surrounded the house of deceased Gangaprasad. A hay -stack was kept outside the house. The house was set to fire by sprinkling kerosene and then throwing burning hay thereon. Inmates of the house who tried to run away were attacked one by one by the assailants with sharp weapons. Even women and children were not spared. Some children and women were trapped inside the house while some were killed and then thrown into the flames.

(2.) KOTWAR Bisahuram (PW 2) who had gone to the neighbouring village Mutpuri to hear Ramayan was informed about the fight going on in the village. He rushed to Kestara. On his way he saw that Ramdayal, Bijeram and Shivprasad Rawats were being taken in bullock -carts. When he reached the village he found that Gangaprasad's house was in flames. He also saw the dead bodies of Mathura Prasad, Ranjit, their mother Pilabai, grandson Rukhmaj, Gangaprasad, Jamuna Prasad and Hemprasad. He immediately set out for reporting the matter at Police Station Nandghat. He reached Nandghat the same night at about 10.45 p.m. and lodged the report (Ex.P -1). Soon after i.e. at about 11 p.m. injured Ramdayal, Bijeram and Shivprasad also reached the Police Station arid lodged a report which was recorded in the Roznamcha Sanha (Ex.P -6). R.P. Guptam Station House Officer of Police Station Nandghat (PW 15), who was not present when the report by Bisahuram was lodged, came to the police station at about 11.30 p.m. and after being apprised of the incident dispatched constable Kamlaprasad (PW 27) with Kotwar Bisahuram to Kestara for keeping guard over the dead bodies. He himself left for Kestara in the morning at about 4 a.m. Due to heavy rains during the previous night he had to take a detour. While passing through the tahsil headquarter Bemetara, he sent intimation of the incident to his superior officers and reached Kestara at about 1 p.m. He found seven dead bodies of Pilabai, Gangaprasad, Jamuna Prasad, Hemprasad, Mathuraprasad, Ranjit and Rukhmaj scattered at different places near the burnt house. He drew up inquest reports of these bodies (Ex.P -66 to Ex.P -72). On entering the house he found six dead bodies which were completely charred. Inquest reports of these bodies were also prepared. Photographs were taken at his instance by photographer Gupta The Sub -Inspector collected the charred skulls and bones and sealed them in sue separate containers. The dead bodies including the charred ones were sent for post mortem examination. On 26 -1 -1982 investigation was entrusted to Circle Inspector Ahirwar (PW 44). On 27 -1 -1982 Ahirwar went to the spot and while inspecting the site of the incident found one more burnt skull. The same was seized, sealed and sent for medical examination. Dr. V.C. Jain (PW 18) of Medical College, Raipur gave his opinion that out of five burnt dead bodies two were of females, two of male children and one of a female child. The charred skull sent by Ahirwar was of a female aged 14 to 15 years as found by Dr. Verma (PW 13). The reports of Dr. Jain and Dr. Verma are Ex.P -15, Ex.P -110 to Ex.P -114. During investigation accused -respondent Panchu gave a statement (Ex.P -131) to Sub -Inspector Shukla (PW 26) and at his instance a bundle of lathis and Tabbals was recovered from the bed of a Nala vide Ex.P -132. As already mentioned above Ramdayal, Shivprasad and Bijeram had received some injuries and had reported the matter at Police Station Nandghat Dr. Baghela (PW 14) noted six incised wounds on the person of Bijeram, seven incised and one contused wounds on the person of Ramdayal and three incised wounds on Shivprasad. The injuries were described by him as simple. It is not necessary to refer in detail to the post mortem reports of the seven persons whose mutilated bodies were found outside the burnt house except to one significant fact that superficial bums were found on the bodies of deceased Mathuraprasad, Jamuna Prasad, Pilabai, Hemprasad and Ranjit (see statements of Dr. A.K. Dave (PW 3), K.K. Pande (PW 4), Dr. Thakur (PW 10) and Dr. Kawdo (PW 11)). This finding about bums on the dead bodies of the victims lying outside the house proved that when the house was surrounded and set to fire these persons tried to escape and received bum injuries before they were caught and hacked to death. The defence case was that they were falsely implicated due to enmity. Evidence was led to show that the accused persons were not in village Kestara when, the incident occurred.

(3.) HER presence near the scene of occurrence cannot be disputed. Her statement that she and her Jethani Budharabai had gone out for cutting Tewra crop has to be believed. Had she been in the house she too would have been murdered either by burning or by sword. When small infants were being killed by the frenzied Crowd of assailants surely she would not have been spared. She could not have gone to any other village as faintly suggested during cross -examination because she would not have left a suckling child in the house for a long period and secondly she would not have gone alone if she were to go to Mutpuri for hearing Ramayan. Bisahuram Kotwar (PW 2) who appeared to be inclined towards the accused persons, was questioned by defence counsel whether he had seen Bhawanibai, Budhara Bai and Bhagabai also at Mutpuri in the Ramayan congregation (para 35). The counsel hoped a favourable answer but the witness categorically denied their presence at Mutpuri. Since she had gone to the field to cut crops, she must have returned before sun -set because crops are never cut after sun -set. Her statement, that she and Budharabai came near the badi of Nandlal and seeing a violent crowd surrounding their house Tried to hid themselves behind the boundary wall; appears to be absolutely natural. The fact that she and Budharabai were not killed shows that they were not seen by the assailants and this could only be possible because they had taken cover and tried to hide themselves. Statement of Patwari Tikaram (PW 24) who prepared this spot map and the inspection note (Ex.C -1) prepared by the learned trial Judge showed that a person hiding behind the boundary wall of Nandlal (height about three feet) could very well see the incident taking place in and around the house of the deceased persons. Thus there could be no doubt that Bhawanibai had seen the occurrence from the badi of Nandlal while concealing her presence behind the boundary wall. Learned trial Judge in para 23 of the judgment disbelieved the testimony of Bhawanibai on absolutely untenable and frivolous grounds. In a very slipshod manner and without referring to the alleged omissions or contradictions in the statements of Bhawanibai in court and during investigation made a sweeping remark that she did not give details of the incident in her case diary statement and also in her statement under Section 164, Criminal Procedure code and therefore, she could not be believed. In paragraphs 28 and 29 of the judgment the learned Judge referred to two minor discrepancies and then came to the conclusion that Bhawanibai could not be believed. The learned Judge, in fact, started with a presumption that Bhawanibai and Bhagabai being the relatives of the deceased were highly interested persons and their testimony had to be very carefully scrutinized. He also observed that independent witnesses were not examined. It is impossible to subscribe to the view of the learned trial Judge. He forgot that the Hindus of the entire village had a grudge against the family of Gangaprasad Satnami and had in broad -day -light massacred 14 persons. Who in these circumstances could dare to come forward and give statement against the accused persons particularly when some of them were still absconding and could take revenge ? A trial Judge must appreciate the evidence taking into consideration the probable conduct of persons in a given situation. He should with his experience be able to analyse the natural conduct of persons in cases like this where in a small village such a massacre had taken place in broad day light. The yard -stick applied by the Court below in appreciating the testimony of Bhawanibai indicated that the learned Judge was oblivious of the fears and apprehensions which a person living in a small village would entertain in such circumstances. As already noted Bhawanibai's presence was a proved fact and, therefore, her testimony ought not to have been thrown out completely only because she had either omitted some names or attributed a particular act to one accused in her case diary statement while there was some change in her version in Court. In Masalti vs. State of Uttar Pradesh, : AIR 1965 SC 202 it was observed - - Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault... .....................................