Bhagwati Prasad vs State Of M.P

`REPORTABLE'

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1368 OF 2003

Bhagwati Prasad .... Appellant

Versus

State of M.P. .... Respondent

JUDGMENT

V.S. SIRPURKAR, J.

1. Appellant herein, who was original accused No. 6 (A-6) in the trial,

has challenged the judgment of the High Court, allowing the State's Appeal

and setting aside the judgment of acquittal passed by the Trial Court. All

the accused persons were tried for the offences punishable under Sections

148 and 149 read with Section 302 of the Indian Penal Code (hereinafter

called "IPC" or short), while the charge against the present appellant was

substantively for the offence under Sections 148 and 302 IPC. 2

2. The allegation was that all the accused persons, six in number,

formed an unlawful assembly and by way of a common object thereof,

committed murder of one Ramgopal (deceased) on 18.2.1984 at about 7

A.M. As per the prosecution story, a report came to be lodged by one

Kedar Prasad (PW-2) of Bansipura, the brother of Ramgopal (deceased) in

Police Station Ambah to the effect that he alongwith the deceased and

neighbour farmer Ramgopal (PW-3) S/o Tularam had gone to irrigate their

field from the canal in Village Lahdaria situated at a distance of 12 K.M.

When they opened the canal for irrigation, at that time, Bhagwati (appellant

herein), armed with spear and the other accused persons armed with Lathi

came there and stopped them from opening the canal. The said accused

persons belonged to Village Lahdaria and they were staying nearby.

There were arguments, as the accused persons objected to the

complainant party taking water from the canal while the complainant

insisted upon taking water, on which Baburam, original accused No. 1 (A-

1) gave Lathi blow upon Kedar Prasad (complainant/ PW-2). When

Ramgopal (deceased) came to his rescue, Bhagwati (A-6) gave a spear

blow on Ramgopal' back, as a result of which Ramgopal fell down. It was

further stated that other accused persons, namely, Devi Prasad, original

accused No. 5 (A-5), Hari Shankar, original accused No. 2 (A-2) and

Radhacharan, original accused No. 3 (A-3) also gave Lathi blows on

injured Ramgopal (deceased). Ramgopal was then taken to Ambah, but 3

he died on the way.

3. On receipt of the information, the usual investigation started.

Inquest report was drawn and the body of Ramgopal (deceased) was sent

for post mortem examination, which was conducted by Dr. K.S. Chauhan

(PW-1). In the post mortem report, it was shown that the death was

caused because of the piercing blow, due to which right lung was

damaged by penetrating spear. After the registration of offence, Sambhu

Singh, Sub-Inspector (PW-9) arrested all the accused persons, who were

initially absconding. After their arrest, Bhagwati (appellant herein) agreed

to discover the spear used in the crime from the wheat field, which was

accordingly recovered from that place. So also, the other accused persons gave

information leading to the recovery of their respective Lathis, which were used in

commission of crime. The spear was sent to Forensic Science Laboratory,

Sagar, M.P. and after completion of the investigation, the chargesheet was filed.

4. The Trial Court acquitted all the accused persons of all the offences. The

Trial Court held that there was no direct evidence for common object. It was

also held that the two eye-witnesses, namely, Kedar Prasad (PW-2), being

the brother of Ramgopal (deceased) and Ramgopal (PW-3) S/o Tularam, being

the cousin of the deceased could not be relied upon. After quoting from their

evidence, the Trial Court found two irregularities, which

according to the Trial Court were substantial. The first was relating to the 4

spot of occurrence not being properly identified. For this, the Trial Court

found that there was contradiction in the version of the eye-witnesses and

the spot map (Exhibit P-4). The second irregularity, according to the Trial

Court, was about the inquest panchnama (Exhibit P-12), which was found

to be torn. According to the Trial Court, the Police had failed to supply the

carbon copy of the panchnama, though direction was given by the Court,

which was not complied with by the Police. According to the Trial Court

that panchnama was deliberately held back. By way of some other

irregularities, the Trial Court found that there was contradiction in the

version of Kedar Prasad (PW-2) and Ramgopal (PW-3) about existence of

the blood in the field and the spot on which the blood was found. One

more contradiction was found in the evidence of Ramgopal (PW-3) as to

whether he was accompanying the complainant party or whether he had

joined them some time later. On these grounds, the Trial Court came to the

conclusion that the prosecution case was not proved.

5. This order was appealed against before the High Court. The High

Court, in its well considered judgment, discussed all the issues. The High

Court firstly held that it had the full powers to review the evidence being

the Court of Appeal. The High Court then examined the principles to be

adopted in appeal against acquittal for appreciation of evidence. The High

Court then went on to hold that the traumatic and homicidal death of 5

deceased was proved. After discussing the medical evidence, the High

Court firstly dealt with the caustic remarks by the Sessions Judge against

the Police. Those remarks are to be found in Paras 13 and 14 of the

judgment of the Trial Court. It so happened that some portion of

panchnama (Exhibit P-12) was not to be found. The Trial Court held that

that portion of the original panchnama was deliberately torn. It seems that

the Sessions Judge had directed production of carbon copy of some

documents and written some letters (Exhibits C-1 to C-4). However, it was

pointed out by the Public Prosecutor that the originals of Case Diary and

the documents were already there before the Court and, therefore, there

was no question of producing the carbon copy of the record. This was not

taken very well by the Sessions Judge and he observed in Para 13 of his

judgment that :-

"13. ......... It is the matter of regret that police has treated this Court just like defence and enemy. When the police has such respect towards Court, then bad day of judiciary has come. It is said that till today people has faith upon judiciary. The people should be ready to bear bad result."

Further, in Para 14, the Sessions Judge held that:-

14. Fact is not so simple, Chor-ke-dadhi-me-tinka's fact is materialized in this case. Carbon copy of case diary is intentionally concealed. Had the carbon copy produced, then purpose of tourning of bottom portion of panchnama of dead body (P-12) would have been clearly proved or the good-faith of prosecution have been proved............................ From 6

the activities of non-producing the carbon copy of diary into the Court, it can be easily said that this person Shri R.B. Sharma, S.P.O. (Police), Ambah is himself responsible for tourning (probably tearing) of panchnama of dead body to save his under-working employee. He cannot take the risk of contempt of Court and hence, there is sign of second offence."

The High Court noted this and found that all these comments were

completely unwarranted, irrelevant and unnecessary for the decision of the

case. It was further observed that no explanation of the Reader, who

keeps the record, was taken on 22.8.1985, when one R.N. Sharma (PW-

6), who prepared the inquest panchnama, was examined and no question

was put to him. The High Court thus found that at least till that date,

inquest panchnama was intact. It further expressed that perhaps it was

torn or mutilated while handling the file. The High Court further found that

copy of the panchnama was supplied to the defence and the Trial Court

either should have taken such copy from defence or could have written a

suitable memo to the S.P. for sending carbon copy of the same, explaining

the situation. The High Court also observed that sending the APP for

obtaining the carbon copy and insisting upon his personally talking to S.P.

was an unnecessary exercise. The High Court also observed that drawing

of any adverse inference therefrom was unwarranted.

6. High Court then discussed the evidence of two eye-witnesses being

Kedar Prasad (PW-2) and Ramgopal (PW-3) in details and came to the

conclusion that their evidence was credible and unshakable. For this, the 7

High Court also relied on the medical evidence of Dr. K.S. Chauhan (PW-

1) and the further fact that even Kedar Prasad (PW-2) and Ramgopal (PW-

3) had sustained injuries in the same occurrence. The High Court rejected

the claim of the defence that these two witnesses were relations and,

therefore, their evidence was liable to be rejected. For this proposition, the

High Court relied on the decisions in Rachamreddi Chenna Reddy Vs.

State of A.P. [1999 (3) SCC 97], Lilaram (Dead) through Duli Chand

Vs. State of Haryana & Anr. [1999 (9) SCC 525], State of Rajasthan Vs.

Hanuman [2001(1) SCC 337] and Munshi Prasad & Ors. Vs. State of

Bihar [2002(1) SCC 351].

7. The High Court also discussed the evidence of Amar Singh (DW-1),

Omprakash (DW-2), who were the relatives of the accused persons, as

also Gopinath (DW-3), brother-in-law of the sister of Bhagwati Prasad

(appellant herein). Gopinath (DW-3) was examined to prove the alibi of

Bhagwati Prasad (appellant herein), however, the High Court rejected that

claim. The High Court also refused to draw adverse inference for not

examining some other witnesses like Ramdayal and Bansi, since they had

come to the place of occurrence, only after the incident. The High Court,

in Para 18 of its judgment, has discussed the topography of the place of

occurrence and critically examined the evidence of Vishram Palia (PW-8),

Head Constable and Jamna Prasad (PW-7), Patwari, who had drawn the 8

spot map. It also examined the placement of Canal, Bamba and aqueduct.

The claim of the defence that there was a serious discrepancy in respect of

the place of occurrence was rejected by the High Court and concluded that

the Trial Court had over-emphasized on this issue. The High Court then

recorded that the defence had no alternative case to suggest that event

had happened anywhere else. The defence had merely suggested that

someone had murdered Ramgopal (deceased) in the night by the side of

outlet of canal (Bamba) and a false case had been framed against the

accused. The High Court, therefore, came to the conclusion that the

actual spot of dispute was of no consequence and the two injured eye-

witnesses, namely, Kedar Prasad (PW-2) and Ramgopal (PW-3) had

clearly supported the prosecution case and, therefore, in keeping with the

law laid down by this Court in Shankar Mahto Vs. State of Bihar [2002(6)

SCC 431], the minor discrepancies, if at all, were not sufficient to

disbelieve the evidence of two eye-witnesses. It was pointed out that there

was no previous enmity between the parties and the incident arose on

account of opening of the aqueduct for irrigation.

8. The High Court further found that participation of Devi Prasad (A-5),

Hari Shankar (A-2) and Radhacharan (A-3) was not proved beyond doubt

and proceeded to acquit them. It was also held that the participation of

five persons was not proved and there could not be the common intention 9

also of Baburam (A-1) and Bhagirath, original accused No. 4 (A-4) to

cause death of the deceased. Ultimately, in Para 20 of its judgment, the

High Court pointed out that the offence on the part of the present appellant

could not be that under Section 302 IPC and it was only covered under

Section 304 Part II IPC, while Babulal (A-1) and Bhagirath (A-4) were held

guilty for the offences punishable under Section 323 IPC. In that view, the

appellant was awarded 5 years' rigorous imprisonment, while Babulal (A-1)

and Bhagirath (A-4) were sentenced to undergo simple imprisonment till

rising of the Court and to pay a fine of Rs.1,000/-, in default of payment of

which, to undergo rigorous imprisonment for 3 months.

9. Shri S.K. Dubey, Learned Senior Counsel appearing on behalf of the

appellant led great stress on the spot, where the incident allegedly had

occurred. He also took us through the evidence of the eye-witnesses and

urged that the High Court had erred in setting aside the well considered

verdict of acquittal by the Trial Court. Shri Dubey firstly urged that the

change of spot of occurrence was apparent as the place where the

incident allegedly took place, did not have any blood, though according to

the witnesses, Ramgopal (deceased) had fallen down on that place. It is

to be noted that Kedar Prasad (PW-2) had not referred to any spot of blood

in the field of the complainant, while as per the evidence of Ramgopal

(PW-3), there was blood at one spot. Ramgopal (PW-3) went on to 10

depose that he had shown the spot where there was presence of blood

and Vishram Palia (PW-8), Investigating Officer had also seized the blood-

stained earth from the place of incident. In Para 9 of his deposition,

Ramgopal (PW-3) had deposed that the place where Ramgopal

(deceased) had fallen, there was presence of blood on that spot in the

field. When we see the evidence of Vishram Palia (PW-8), Investigating

Officer, he asserted that there was no blood found in the field. The

Learned Senior Counsel for the appellant, therefore, argued that the whole

prosecution claim is contradictory as according to Kedar Prasad (PW-2),

incident took place near the canal. There was no blood to be found at that

spot or even at the spot where the aqueduct was sought to be opened by

the deceased. In comparison to this, on the claim of Ramgopal (PW-3)

that there was blood somewhere in the field and it is at that spot that

Ramgopal (deceased) was assaulted, the Learned Senior Counsel

contended that this only suggested that both the eye-witnesses were lying

completely and the whole incident was imaginary.

10. We cannot accept this contention. The version of Ramgopal (PW-3)

that he showed the blood spot to Vishram Palia (PW-8), Investigation

Officer and that there was blood, has to be rejected as exaggeration.

Instead of relying on the evidence of a villager regarding the blood spot,

we would chose to accept the evidence of Vishram Palia (PW-8), 11

Investigation Officer, who very specifically asserted that there was no

blood anywhere in the field. The Learned Senior Counsel argued that it

was impossible that the blood would not come out of the body, however,

the Learned Counsel appearing on behalf of the State pointed out that it is

not necessary that the blood would flow like tap-water from a single

wound, even if the said wound proved fatal, as has been asserted by Dr.

K.S. Chauhan (PW-1). It must be borne in mind that the deceased, at that

time, was wearing a vest and a shirt above and even if the blood came out,

it could be soaked in the clothes worn by the deceased at that time.

Therefore, the Learned Counsel for the appellant urged that the evidence

of Vishram Palia (PW-8), Investigation Officer would be more acceptable

and appropriate. The Learned Senior Counsel is undoubtedly right.

Further, there is no evidence that any artery of the deceased was cut. This

is apart from the fact that there was no cross-examination of Kedar Prasad

(PW-2) on this issue. The Learned Counsel for the State rightly pointed

out that in the spot-map or in the observation panchnama, there is no

place shown as blood-stained and had the blood been present there, there

was no reason for the prosecution to hide that spot or to avoid stating

about that. In our opinion, the existence of blood or absence thereof would

by itself not be such a fact as would completely wipe out the evidence of

two eye-witnesses.

12

11. In fact, much confusion was caused on account of the use of three

words, namely, canal, Bamba and cool. The witnesses have specifically

explained that the main canal was on the Northern side of the two adjacent

fields of the complainant. Bamba, i.e., outlet of canal is from that canal on

the Northern side and the water then comes in that small outlet, which

feeds Eastern side field of the complainant. Adjacent to that field is

another field of the complainant and naturally, in order to draw water from

Bamba, there has to be an aqueduct, which would go up to the adjacent

field of the deceased. It is at that spot that the incident must have taken

place. This situation is explained by Kedar Prasad (PW-2). He says in

Para 15 of his deposition that on the earlier day of the incident, water from

the canal was released in his field; the water was released firstly in the

canal and they (complainant party) went in the morning to open the water

in his field. He was specific that before that, water was not flowing in the

canal. He was obviously referring to the Northern side main canal. Much

was made by the learned defence Counsel that the word used is "canal" in

the First Information Report and, therefore, urged that the spot of

occurrence must be near the canal in the Northern side. This is obviously

impossible for the simple reason that both the eye-witnesses are

unanimous on the point that the incident took place in the field of

complainant, which was not adjacent to the main canal flowing East-West 13

on the Northern side. The witness Kedar Prasad (PW-2) has specifically

deposed:-

"When water is opened from canal, it comes to bomba and thereafter when bomba opens then comes to cool and when cool is opened, it comes to field."

As regards the spot of occurrence, the witness said in para 18 of his

deposition that:

"Murder took place in the field situated near Lahdaria village. Murder was not taken place in the field situated near road named Ambah Used Ghat."

The witness was very specific in his answer when he was asked

whether Investigation Officer collected the blood from the place of incident.

He deposed:-

"I do not know whether I.O. had collected blood at the time of preparation of spot map. I do not know whether blood was present on the place of incident."

Ramgopal (PW-3) also asserted that:-

"Quarrel had taken place on the issue of water. Kedar was releasing water in his field. He was releasing water from the cool."

Ramgopal (PW-3) was very specific that the murder took place in the

field of Kedar Prasad (PW-2). In his cross-examination, he stated that he

was not called by Ramgopal (deceased) or Kedar Prasad (PW-2) to

irrigate the field and that he was going to his own field alongwith them. 14

The Learned Senior Counsel for the appellant found fault with this and

according to the Learned Senior Counsel, since the version was that he

was going for irrigating his field and since the version of Kedar Prasad

(PW-2) was that this witness was going with them to their field, this witness

was lying. The argument is correct. What was the purpose of this witness

in going was not material. Whether the witness was there or not at the

time of assault on Ramgopal is the material fact. It was obvious that he

may have gone to the spot either for irrigating or for collecting grass from

his own field. The purpose is irrelevant. Therefore, the contention of the

Learned Senior Counsel is not right.

As regards the incident and topography, Ramgopal (PW-3) says that:-

"It is true that water is first released from canal to the Bomba and when released from Bomba then it comes to cool and when it released from cool then it comes to Baraha and when it is released from Baraha then it comes to field. No quarrel had taken place when water was opened from canal. Bomba from the canal came upto Lahdaria Village and take a turn therefrom. I do not know the distance between the place of murder and the place of cool where from water released for Baraha. Even I cannot say the distance in yard, hand, fields, steps etc."

He, however, refuted the suggestion that the quarrel has taken place

where the water was released from the canal. He further asserted that:-

"It is also not a fact that when water open from canal then accused persons came with lathi and Ballam and started qurreling and mar-pit. "

15 Now, such suggestion, in our opinion, was a suicidal suggestion. It

merely established the presence of the accused persons with weapons,

which they handled. The witness further specified that when water was

opened from cool, then mar-pit had taken place. It must be realized that

vocabulary and the terms used by the villagers could always be confused

by the police when they recorded their statements. Much importance

cannot be given to such minor discrepancies. The broad features of the

evidence were that the complainant party wanted to irrigate their field and

for that they wanted to open the aqueduct for supplying water to their field

and it was at that spot that the incident took place. Once the evidence of

the two eye-witnesses, who themselves were injured eye-witnesses, was

accepted by the High Court after the detailed consideration and when they

asserted that the incident took place in the field of the complainant and

when placement of the field of the complainant was fixed by the evidence,

the evidence becomes immediately acceptable and then such minor

discrepancy whether it was spot `A' or spot `B', would be pushed to the

background. Such minor discrepancy cannot affect the whole prosecution

story. It is only when the defence is able to establish that the change of

the spot was deliberate and such a change was so substantial as would

affect the whole prosecution story, that such discrepancies assume 16

importance. In the present case, it was clearly an open and shut case

where the two eye-witnesses in the broad day light witnessed the attack by

the accused persons. There was absolutely no variance in the version of

the two eye-witnesses to the effect that it was the present appellant, who

gave the spear blow on the back of the deceased. It must be seen

immediately that both the witnesses, i.e., Kedar Prasad (PW-2) and

Ramgopal (PW-3) were injured and there was no explanation for their

injuries.

12. Shri S.K. Dubey, Learned Senior Counsel for the appellant tried to

suggest that in the medical certificate, age of the injuries was mentioned

as 24 hours. Now, it is obvious that the maximum duration of the injuries

was stated in the medical certificate. What was meant was that the injuries

could have been caused within 24 hours from the time the witnesses were

examined by the Doctor. Shri Dubey again pointed out that in the post

mortem report, the age of the injuries of the deceased was mentioned as 6

hours. It must be borne in mind that in the post mortem report, the

determination of precise duration of the injuries can be possible due to the

internal examination of the injuries, whereas no such advantage is

available to the Doctor when he examines the injuries in the nature of

contusions. Therefore, normally the approximate duration is indicated in 17

such certificates. We are not impressed by the argument of the defence

on this aspect and reject the same.

13. It was also tried to be argued by the Learned Senior Counsel for the

appellant that there were certain discrepancies in the First Information

Report (FIR), like from the FIR, it was suggested as if the incident had

taken place near the canal. We have already considered this contention

that the use of the word "canal" may be because of the impression of the

Constable, who wrote the report in vernacular. That, however, will not take

the spot of occurrence near the canal on the Northern side.

14. We are, therefore, of the clear opinion that the High Court was

absolutely right in upsetting the judgment of acquittal passed by the Trial

Court and convicting the accused persons.

15. Shri S.K. Dubey, Learned Senior Counsel for the appellant then

contended that the sentence of five years is too harsh, considering the fact

that the prosecution is pending for so many years. We do not think that

the sentence of five years is unduly harsh, considering that a life is lost and

that too without any justification. In the result, the appeal fails and is

dismissed.

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CRL. M.P. NO. 18556 OF 2009

In view of the order passed in the main appeal, this application has

become infructuous and is accordingly dismissed.

..............................J. [R.V. RAVEENDRAN]

..............................J. [V.S. SIRPURKAR]

.............................J. [DEEPAK VERMA] NEW DELHI December 03, 2009.

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