State Of M.P vs Makhan @ Madan & Ors

State of M.P. ...Appellant

Versus

Makhan @ Madan & Ors. ...Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in these appeals is to the judgment of a Division Bench of

Madhya Pradesh High Court at Jabalpur directing acquittal of the

respondents who are hereinafter referred to as the `accused'. The accused

persons faced trial for alleged commission of offence punishable under Sections 148, 302 read with Section 149 of the Indian Penal Code, 1860 (in

short the `IPC'). They were found guilty by the Additional Sessions Judge,

Betul in ST case No. 169 of 1989 and were convicted and sentenced to

undergo rigorous imprisonment for one years and life respectively.

2. Prosecution version in a nutshell is as follows:

On 15.7.1989 Premlal (hereinafter referred to as the `deceased') had

called a doctor for treatment of his sister and while he was returning after

seeing off the doctor and reached near Kanji House Bazar Bohalla, accused

persons had altercation with him and in order to kill, assaulted him by sticks

and rod. They also threatened to set on fire his motorcycle at which Laxmi

Bai and Maniya Bai (PW5) went there where they saw accused persons

assaulting the deceased by rod and lathi as also by fists and slaps. The

deceased was shouting for help. Later he became unconscious and fell down

and the accused persons fled away from the place of occurrence. Thereafter

the deceased was taken by his wife Somti Bai (PW1) and Maniya Bai (PW

5) to their house in unconscious condition. Report of the incident was given

at 4.30 AM to the police station at Sarni, which is at a distance of about

9Km from the place of incident. Premlal was sent for medical examination

2 to Primary Health Centre from which he was referred to Padhar Hospital for

treatment. Premlal succumbed to his injuries on 20.7.1989. After his death,

his dead body was sent for postmortem examination which was conducted

by Dr. V.K. Shrivastava (PW 14). In the opinion of the doctor Premlal died

due to coma on account of head injury. After investigation charge sheet was

filed.

Since the accused persons pleaded innocence, the trial was held. The

trial court as noted above found the accused persons guilty and convicted

them. In appeal, however, the High Court directed the acquittal.

3. Learned counsel for the appellant submitted that the High Court

should not have discarded the evidence of the eye witnesses.

4. Learned counsel for the respondent on the other hand supported the

judgment of the High Court.

5. It is to be noted that the High Court with reference to evidence of

Somti Bai, PW1 noted that in the First Information Report it was stated that

the place of occurrence is Kanji House Bazar Bohalla but in court the

witnesses stated that the accused persons had assaulted the deceased at the

residence of Deoli (PW 7) the Sarpanch of the gram panchayat by Lathi and

3 rod. According to Lachhu (PW 2) the deceased was assaulted on the way

while he was coming from the house of Sarpanch (PW 7) whereas according

to Somti Bai (PW1), the deceased was assaulted in front of the house of the

Sarpanch. Maniya Bai (PW 5) stated in her examination in chief that she

had seen the accused persons assaulting the deceased with fists and slaps

but in cross examination she had stated that when she reached the police

station alongwith Somti Bai (PW 1) they had disclosed that the deceased

was lying in injured condition and had not disclosed the names of the

accused persons. In contrast Somti Bai (PW 1), Lachhu (PW2) and Maniya

Bai (PW5) stated that the name of the accused was in the first information

report. In her cross-examination she clearly admitted that police told them

that they would make enquiry and if report was found false they would be in

trouble. Additionally, Maniya Bai (PW5) stated that they had reached the

police station about mid night. But the FIR was registered early morning

next day. Lachhu (PW2) in his statement had stated that he could not

identify any of the accused persons due to darkness. If that be so, the

evidence of Somti Bai (PW1) Maniya Bai (PW5), that they had clearly

identified the accused persons cannot be believed. It is true that even in

darkness known persons can be identified from the manner of speech, style

of walking and several other peculiar features. But the evidence of PW 2

4 was to the effect that because of darkness none of the accused persons could

be identified. In the instant case not only there is discrepancy as regards the

place of occurrence but also on several vital aspects like non-disclosure and

non-possibility of identification.

6. In view of what has been stated above, the judgment of the High

Court does not suffer from any infirmity to warrant interference. Appeals

are dismissed accordingly.

...........................................J. (Dr. ARIJIT PASAYAT)

..........................................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, October 16, 2008

5