864 and 865 of 1991, whereby the appeals of Harilal and Parasram @ Rangnath (the appellants herein) were dismissed and the order of the third Additional Sessions Judge, Bilaspur, dated 13.07.1991, passed in S.T. On 26.08.1989 itself, the inquest was conducted and the police collected blood-stained earth/plain earth from the spot and also seized a lathi, which was lying near the body of deceased. The third accused, namely, Harilal, was arrested on 27.08.1989 and on the same day, a lathi and clothes were allegedly discovered at his instance from his house. PW-8 observations in respect of the cadaver were as follows: – Ante-mortem External Injuries : – (i)
Lacerated wound 3.5cm x 2.5cm x 0.5cm on left temporal region; (ii)
Lacerated wound 2.5cm x 1 cm dividing the centre of the pinna of the left ear.
They were broadly categorized by the trial court into three categories: – (i) eye-witnesses of the incident; (ii) witnesses who reached the spot on getting information about the incident; and (iii) witnesses who proved proceedings relating to investigation, medical examination, inquest, seizure memos, preparation of site plan, etc. The trial court noticed that though PW-2 (Sitaram) supported the prosecution case as against accused Harilal but he did not name the other two accused, namely, Anshram and Parasram. The learned counsel for the appellants submitted that the incident is of late evening/night whereas the FIR was lodged next day at 10 am, which is suggestive of the fact that no one witnessed the incident and FIR was lodged after deliberation and the prosecution story developed thereafter; otherwise also, testimony of PW-2 and PW-6 is unreliable for the following reasons: (i) PW-2 is a resident of village Khapri, whereas the incident occurred in village Kohroda. Jugmatibai (PW-9), a Kotwarin (village chowkidar) of village about the incident.
However, PW-9 stated that she was not informed by any person who might have witnessed the incident. In his deposition in Court he had stated that,- he was in his house at the time of the incident; he came out on alarm raised by mother of accused Parasram that Ellahabadiya alias Vijay (i.e., the deceased) was beating her son Parasram, which was inconsistent with his previous statement made during investigation wherein he had stated that he came out on hearing loud noises of a fight in the Gali (alley).
Therefore, considering the nature of the weapons used, it would be a case falling under one of the Exceptions of Section 300 I.P.C.
Even if PW-2 did not name all the three accused in his deposition, his deposition corroborates the testimony of PW-6 with regard to the manner in which the deceased was assaulted by the accused. In this case, we notice from the record that the trial court as well as the High Court while appreciating the evidence have not properly addressed various aspects, namely, (a) there is no clear cut motive proved against the accused except that there was some incident concerning a lady of the village; (b) PW-2 and PW-6 both state that the deceased was assaulted in front of the house of one of the accused persons, namely, Anshram, but, the site plan (Ex. P-13), amongst other articles, a lathi was seized by the police from the place where the dead body was lying – whose lathi it was, the prosecution evidence is silent; (d) the articles i.e. Before we proceed to analyse the testimony of the two material eye-witnesses of the incident (i.e., PW-2 and PW-6), what is important to note is that as per the ocular account of PW-2 and PW-6, the assault on the deceased took place between 7 pm and 8 pm of 25.08.1989.
PW-9, in her deposition, stated that she is Kotwarin of village Kharpi and Kotwar of village Kohroda (i.e., the place where incident occurred) is some other person. First, that PW-2 did not inform her about the night incident as is alleged by PW-2 in his deposition; second, the body of the deceased was found near the temple and was kept there overnight; and third, if no one had told PW-9 about the incident, why a named FIR was lodged. In this regard, PW-2 is inconsistent with his previous statement inasmuch as in his previous statement, with which he was confronted, he had inculpated all the three accused whereas in his deposition in Court he stated that he had not stated before the investigating officer that both Anshram and Harilal were assaulting the deceased. Taking the above into account and having regard to the fact that PW-2 is a chance witness, not a resident of the village where the incident occurred, and his statement was inconsistent with his previous statement, in our view, it would be unsafe to rely on PW-2 to convict the accused for the offence of murder. The deposition of PW-6 that he came out to witness the incident on alarm raised by accused Parasram’s mother that his son is being beaten by Ellahabadiya (the deceased) is inconsistent with his previous statement made during the course of investigation, with which he was confronted, wherein he stated that he came out on hearing loud noises coming from the street in front of the house of Anshram. In addition to the above, what is of significance is that if PW-6 had arrived at the spot later, when other villagers had collected near the body of the deceased, he could have informed PW-9 about the culpability of the accused but, PW-9 categorically states in her deposition that no one informed her about the perpetrator of the crime.
Thus, taking into account that it was a case of night occurrence, the body of the deceased was found at an open place near a temple; a named FIR was lodged not by any villager of the place where the deceased was assaulted, but by PW-9 i.e., the village Chowkidar of the neighbouring village, who admits that no eye witness had informed her; and the body was found at a distance of 300 feet from the place where the deceased was allegedly assaulted, we are of the view that this is a fit case where the accused are entitled to the benefit of doubt. At this stage, we may observe that though the prosecution relied on seizure of lathis and clothes at the instance of the accused but these incriminating circumstances have been denied and the serologist report could not confirm the origin of blood stains found thereon. In case they are not on bail, they shall be released forthwith unless wanted in any other case.
Case Title: HARILAL Vs. STATE OF M.P.(NOW CHHATISGARH)
Case Number: Crl.A. No.-002216-002217 / 2011
