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1979 Cri. L. J. 908
1979 Cri. L. J. 908
were also convicted for having committed an, offence dead body of Diwan Singh was lying and at that time
under section 148 of the Indian Penal Code and each Phoola Bai (P.W. 6) and mother of Diwan Singh were
of them was sentenced to suffer rigorous imprisonment also present there. Ram Singh (P.W. 10) and Gandharv
for two years by the learned II Additional Sessions Singh (P.W. 11) asked Phinsa (P.W. 5) to go to the police
Judge, Bhopal in Sessions Trial No. 16/74. Their Appeal station and lodge a report and accordingly Phinsa went to
No. 243/74 was summarily dismissed by the Madhya Dehgaon Police Station and lodged report Exhibit P-25
Pradesh High Court. on the basis of which an offence was registered and
investigation was undertaken. Ultimately nine accused
2. The appellants along with four others (acquitted by were charge-sheeted for the aforementioned offences.
the Additional Sessions Judge) were tried for committing
murder of one Diwan Singh on 21st September 1973. 3. The learned Additional Sessions Judge on a
The prosecution case against them was that around 10 concession by the learned Government Pleader acquitted
p.m. to 11 p.m. on the date of occurrence Diwan Singh accused Nos. 8 and 9 holding that they had not
was at his house, relaxing on a cot, after taking his food. participated in the actual assault and no deadly weapon
His wife Phoola Bai (P.W. 6) was sitting on the cot. At was recovered from either of them and therefore they
about that time, accused No. 8 Mohandas and accused could not be said to be sharing the common object of
No. 9 Kashidas (both acquitted by the the unlawful assembly. Similarly, in case of accused
No. 2 and No 4 the learned Additional Sessions Judge
@page-CriLJ909 was of the opinion that merely because they caught
hold of Phoola Bai they could not be said to be sharing
Additional Sessions Judge) came to the house of Diwan the common object of the unlawful assembly. With
Singh and informed him that he was required by one these observations accused Nos. 2, 4, 8 and 9 were
Prabhu. On receipt of this intimation Diwan Singh asquitted. In respect of accused Nos. 1, 3, 5, 6 and 7, the
started from his house and Phoola Bai (P.W. 6) followed learned Additional Sessions Judge held that evidence of
him. When Diwan Singh reached near the house of Phoola Bai corroborated by the evidence of Lachhman
Devi Ram Modi, he was accosted by the appellants (P.W. 7) as also the evidence of Kanhaiyalal (P.W. 8)
and four acquitted accused. All the accused were armed would affirmatively establish that the aforementioned
with Katarnas. Accused No. 1 Babboo alias Kalyandas five accused formed an unlawful assembly the common
struck a blow with Katarna on the shoulder of Diwan object of which was to commit murder of Diwan Singh
Singh. Immediately, thereafter all the rest of the accused and in prosecution of the common object of all of them,
also gave blows with Katarnas to Diwan Singh. P.W. they simultaneously beat and belaboured Diwan Singh
6 Phoola Bai was threatened that if she were to raise who died in consequence of the injuries suffered by him
shouts, she would be killed, However, Phoola Bai and therefore they were guilty of committing an offence
screamed which attracted the attention of one Lachhman under section 302 read with section 149 of the Indian
(P.W. 7) and Lachhman interceded and implored the Penal Code as also for committing an offence under
accused not to beat Diwan Singh. At that time accused sections 148 of the Indian Penal Code and they were
No. 4 Teekaram pushed the wooden handle of Katarna convicted and sentenced as mentioned above.
into the mouth of Lachhman. Diwan Singh fell down on
the ground. Accused No. 2 queried if Diwan Singh had 4. Their appeal to the High Court was dismissed in limine
been done away with and when informed it was so, all the by a laconic order which leaves much to be desired
accused went away and entered the house of Devi Ram brevity being its only merit.
Modi. Phoola Bai (P.W. 6) went to the house of Ram
Singh (P.W. 10), uncle of deceased Diwan Singh and 5. The only and the most important witness against the
informed him that her husband Diwan Singh was killed appellants is Phoola Bai (P.W. 6). According to her,
and was lying near the house of Devi Ram. Ram Singh original accused Nos. 8 and 9 came to her house, around
(P.W. 10) called one Rati Ram and Gandharva Singh 10 p.m. to 11 p.m. and told her husband Diwan Singh,
(P.W. 11). Gandharva Singh is the cousin of Diwan who was then resting on a cot, kept in Dehlan, that he
Singh, Phinsa (P.W. 5) the chowkidar of the village was required by one Prabhu. On this intimation Diwan
was sent for, and he soon arrived at the spot where the Singh immediately started in company of accused Nos.
8 and 9 for going to the house of Prabhu. Phoola Bai and he saw Diwan Singh being beaten by accused Nos.
then said that she followed her husband. This strikes us 1 to 9 with Katarnas. He implored the accused not to
as utterly unnatural. If Diwan Singh had the slightest beat Diwan Singh whereupon accused No. 4 hit him by
suspicion of any foul play he would not have readily the blunt side of Katarna on his face. Accused No. 4
agreed to accompany the original accused Nos. 8 and threatened him not to raise shouts or else he would be
9 who came to call him. His readiness to accompany killed. Thereafter, all the accused went away. He saw
the original accused Nos. 8 and 9 would dispel any Diwan Singh bleeding from his injuries. After sometime
suggestion of any suspected foul play otherwise Diwan Ram Singh (P. W. 10), Gandharv Singh (P. W. 11)
Singh would have said that he would meet Prabhu on the and Phoola Bai came there. He also stated that he was
next day in the morning because the intimation of a call examined for the injuries suffered by him. Dr. S. Y.
by Prabhu did not disclose any urgency. Now, if Diwan Jaffri (P.W. 2) stated that he examined Lachhman on
Singh going with accused Nos. 8 and 9 would raise little 24-9-73 at 4 p.m. and he found abrasion in the upper lip
or no suspicion, it is difficult to believe that for no rhyme inside infected ?" x ?" opposite upper right incisor tooth.
or reason Phoola Bai would follow Diwan Singh. She Presence of Lachhman at the time of occurrence is very
does not say that she had any suspicion. Undoubtedly, doubtful. According to Lachhman he left Diwan Singh's
she is the third wife house at 11 p.m. where he had gone to tether bullocks.
He was then on his way to his house. He does not refer
@page-CriLJ910 to the presence of accused Nos. 8 and 9 at the house of
Diwan Singh. If accused Nos. 8 and 9 appeared at the
of Diwan Singh and even a second wife was staying with house of Diwan Singh sometime after Lachhman left, it
him at the relevant time. Son of Diwan Singh, then aged is not possible to believe that he would be somewhere in
12, was also staying with him. In these circumstances, the vicinity of the scene of occurrence so as to be able
evidence of Phoola Bai that she followed Diwan Singh to hear the shouts of Phoola Bai. According to Phoola
appears to be utterly unnatural and a serious doubt Bai accused No. 4 thrust wooden handle of Katarna
arising out of this unnatural conduct, instead of being into the mouth of Lachhman but according to Lachhman
dispelled, gets reinforced and strengthened by the he gave a blow on his face. If what Lachhman says
contents of the First Information Report Exhibit P-25, to is true, the medical evidence would not bear out his
which We would presently turn. testimony. He was not contacted till 23-9-73 and he is
examined by Dr. Jaffri on 24-9-73 at 4 p.m. There is
6. Phoola Bai further deposed that when her husband
a serious contradiction in his evidence with reference
reached near the house of Devi Ram Modi present
to his evidence in the Committing Magistrate's court
appellants and four acquitted accused accosted him
wherein he speaks about the visit of accused Nos. 8 and
and belaboured him with Katarnas. She was threatened
9 to the house of Diwan Singh in his presence.
not to raise shouts but she screamed and thereupon
Lachhman arrived at the spot and beseeched accused not If that be so, he does not say that he saw Diwan Singh
to beat Diwan Singh. She claimed to have identified the leaving in company of accused Nos. 8 and 9 followed
assailants and pointed them out in the court. This part by Phoola Bai. His house is not in the vicinity of scene
of her evidence is belied by F.I.R., Ex. P-25 and the of occurrence. Further according to chowkidar Phinsa
evidence of Ram Singh and Gandharv Singh to whom he was present near the dead body of Diwan Singh
she did not give the names of the assailants. She did not and yet he failed to disclose the names of assailants
disclose the identity of assailants to chowkidar Phinsa whom he claims to have identified before Phinsa left
who was sent to lodge the F.I.R. Ex. P-25. for the police station. Further Kanhaiyalal does not refer
to Lachhman's presence. Viewed from either angle, his
7. The next important witness who claims to be an eye-
presence at the scene of occurrence and at the time of
witness is Lachhman (P.W. 7). Lachhman stated that
occurrence is doubtful.
on the date of occurrence at about 11 p.m. he was
returning from the house of Diwan Singh and when 8. The third witness in this context is Kanhaiya Lal
he reached near the house of one Kanhaiya, he heard (P.W. 8). Kanhaiya Lal deposed that on the date of
the shouts of Phoola Bai. He rushed in that direction
the occurrence between 10 p.m. and 11 p.m. he was at claims to be, the most natural conduct on her part would
his house. Phoola Bai came crying towards his house be to give the names of the assailants to Ram Singh and
whereupon he got up and he saw 5 to 6 persons beating Gandharv. The evidence of Ram Singh and Gandharv
Diwan Singh and among them he identified accused Nos. Singh would show that even though Ram Singh asked
1 to 7. He does not speak of the presence of accused Nos. the specific questions as to who killed Diwan Singh, the
8 and 9. He saw accused Nos. 1 to 7 beating Diwan Singh only information that Phoola Bai gave was that the dead-
with Katarnas. He also saw Phoola Bai coming crying body of her husband lying near the house of Modi. Could
from that side. He made a very important statement that this be the conduct of the eye-witness, particularly of the
except Phoola Bai no other person excluding Diwan wife, who claims to be a witness to the brutal assault
Singh and the accused was present there. This, to some on her husband and who claims to have identified the
extent, eliminates the presence of Lachhman. In his assailants? This lacuna renders the evidence of Phoola
cross-examination he admitted that from near his house Bai, Lachhman and Kanhaiya Lal utterly unworthy of
or the open court-yard styled as Dehlan, one cannot see belief.
the Dehlan of Devi Ram Modi as that place is about 30
to 35 paces from his house. The light available was a 11. This infirmity in the evidence becomes more telling
kerosene lantern near the house of Devi Ram. It is when we refer to the evidence of Phinsa the chowkidar
(P.W. 5) who was summoned to the scene of occurrence
@page-CriLJ911 by Ram Singh soon after the occurrence. Phinsa stated
that Ram Singh informed him that the dead-body was
not possible to believe that Kanhaiya Lal would be able near the door of Modi, whereupon he went to the scene
to have a view of the scene of occurrence from near of occurrence and at that time Phoola Bai, mother of
his house as also to be able to identify the assailants. Diwan Singh, Lachhman, Ram Singh and Gandharv
Therefore, Kanhaiya Lal does not appear to be an eye- Singh were present there and he was told by Ram Singh
witness as claimed by him. and Gandharv Singh to make a report of the occurrence
to the police station. He accordingly went to the police
9. We could have been persuaded to wholly overlook station Dehgaon and lodged a report Exhibit P.25. This
the infirmities pointed out by us in the evidence of is the first information report. In Exhibit P-25 Phinsa
principal prosecution witnesses Phoola Bai, Lachhman states that he was informed by Ram Singh Maina around
and Kanhaiya Lal, but for a very serious infirmity which 11 p.m. on the previous night that a dead-body was
stares into our face and renders the prosecution case lying near the house of Modi. He stated that he went
utterly unworthy of belief. to that place and found the dead-body of Diwan Singh
lying there with the injuries on chest, head and hands
10. Ram Singh (P.W. 10) is the uncle of deceased Diwan
caused with a weapon like Katarnas and blood was
Singh, and Gandharv (P.W. 11) is the cousin of Diwan
oozing out of the body. The report further recites that
Singh. Phoola Bai went from the scene of occurrence
Ram Singh, Lachhman, Diwan Singh's wife Phoola Bai
to the house of Ram Singh, which would mean that the
and mother were present there and he was informed
first person she approached after she had witnessed the
that somebody had committed murder of Diwan Singh.
brutality committed on her husband was no stranger to
This would affirmatively establish that Phoola Bai,
her but a near relation. She was asked by Ram Singh as
Lachhman and Kanhaiya Lal were not witnesses to the
to who was killed; to which she replied that the dead-
occurrence, and that they had not seen or identified the
body of her husband was lying near Modi's house. She
assailants of Diwan Singh. This report was received at
does not say who were the assailants of Diwan Singh.
the police station on 22-9-73 at 12.30 noon. It would
Ram Singh immediately sent for Gandharv Singh (P.W.
be a reasonable inference that for a period of 12 hours
11) and in his presence Phoola Bai spoke that Diwan
after the occurrence the names of the assailants were not
Singh was killed. The names of the assailants were not
disclosed and this would wholly belie the prosecution
given. If Ram Singh and Gandharv Singh, the two near
case that Phoola Bai, Lachhman and Kanhaiya Lal were
relations of deceased Diwan Singh, were approached
witnesses to the occurrence. This renders the prosecution
within a couple of minutes after the occurrence and if
case utterly unworthy of belief.
Phoola Bai was the witness to the occurrence, as she
12. There is no other evidence in this case which will and accordingly this appeal is allowed and the conviction
remove or resolve the doubt arising from the contents and sentence imposed upon the appellants are set aside
of F.I.R. Exhibit P-25 as well as conduct of Phoola Bai and they are acquitted of all the charges for which they
in not giving the names of the assailants to her near were convicted. They are on bail. Their bail bonds are
relation Ram Singh to whom she first approached as cancelled.
well as to Chowkidar Phinsa. The distressing feature of
this case is that neither the learned Sessions Judge nor 15. Before parting with this case, we feel impelled to
the High Court attached due importance to this glaring express our sense of distress at the manner in which
infirmity in the prosecution case. An utterly incorrect the High Court has disposed of the appeal preferred by
statement was made in the judgment of the Additional the present appellants. When the appeal came up for
Sessions Judge that Phoola Bai narrated the commission admission, the High Court referred in one line to the
of the offence as witnessed by her to witness Ram Singh evidence of Phoola Bai observing that she had named all
which fact is not borne out by the evidence of Ram Singh the five appellants as having caused injuries to Diwan
and Gandharv Singh but on the contrary after specific Singh with Katarnas. The next sentence is with reference
questions of Ram Singh, Phoola Bai does not give the to the evidence of Lachhman which evidence is disposed
names of the assailants. The learned Additional Sessions of by a cryptic observation that he supports Phoola Bai.
The following sentence is with reference to Kanhaiya
@page-CriLJ912 Lal's evidence and it is observed that he corroborates
both Phoola Bai and Lachhman. Then comes a statement
Judge does not even refer to this serious lacuna in the which may be reproduced in the words of the High Court.
prosecution case. It reads as under:-
13. The learned Additional Sessions Judge has also "Similarly, there are two other eye-witnesses, Ram
referred to the recovery of Katarnas on the information Singh (P.W. 2) and Gandharv Singh (P.W. 11)."
given by accused Nos. 1, 3 and 5.These recoveries
hardly have any probative value in the facts and This statement is wholly incorrect and a mere glance
circumstances of this case. If there is no substantive at the evidence of Ram Singh and Gandharv Singh
evidence worth the name the recovery of Katarnas would would show that they were not eye-witnesses. The only
hardly advance the prosecution case against the accused. inescapable conclusion is that such a serious appeal has
Katarnas appear to have been stained with human been disposed of in a laconic manner without application
blood.However, it is revealing to refer to the recovery of mind. The High Court then refers to the recovery
memos. Katarna is recovered from accused No. 1 under of shirts of accused No. 1 and accused No. 3 having
seizure memorandum Ex. P-8 in which it is recited that been stained with human blood. The learned Additional
accused No. 1 made the statement that he would show Sessions Judge has not attached any importance to the
the Katarna with which he assaulted Diwan Singh on recovery of these two shirts.When at a criminal trial
21-9-73 at night. The first part in the seizure memo a number of accused are convicted of such a serious
would be inadmissible because the fact that accused No. offence as one under section 302 I.P.C. and there is
1 assaulted Diwan Singh is not discovered in pursuance only one appeal on facts to the High Court ordinarily it
of the information given by accused No. 1. It would be a is expected that the contentions raised by the accused
confessional statement to police officer hit by section 25 would receive serious considerations at the hands of the
of the Evidence Act. Same infirmities were to be found High Court. It is undoubtedly open to the High Court
in regard to the recovery memos in respect of accused to dismiss such an appeal in limine but as is expected
Nos. 3 and 5. In this background we are not disposed to by this Court it must be by a speaking order. No useful
attach any importance to the recovery of blood-stained purpose would be served by paying lip sympathy to
Katarnas on the information given by accused Nos. 1, 3 the requirements of making a speaking order if glaring
and 5. inaccuracies and serious infirmities in the prosecution
evidence are wholly overlooked. A mere statement that a
14. It would thus appear that the prosecution has totally witness implicates all the accused and a broad statement
failed to bring home the charge against the appellants that other two witnesses corroborate the first witness
Appeal Allowed .