Tulsiram & Ors vs State Of M.P

by the High Court of Madhya Pradesh, Jabalpur 2

(Gwalior Bench) on December 11, 2006 in

Criminal Appeal No. 210 of 2000.

3. The short facts of the case are that

First Information Report (FIR) was lodged by

one Ram Singh (PW7), son of Ram Prashad Meena

resident of Kulakheda on October 1, 1997.

According to the prosecution, on October 1,

1997, one Ramesh Singh was going from Anjali to

Kumbhraj on motor-cycle of one Govind Singh

along with Raghuveer Singh and Hukum Singh.

When they reached near Khatakiya Tiraha, all

accused persons who were hiding themselves in

the shadow of a Mini Bus and armed with lethal

weapons, like lathi, farsa and luhangi

appeared, stopped the motor-cycle driven by

Ramesh Singh and started beating him by

inflicting blows. Accused-2 Bhagwan Singh

caused farsa blow on the left hand of Ramesh,

Accused-1 Tulsiram caused luhangi blow on

parietal region of Ramesh Singh, Accused-4 Daku

and Accused-3 Roop Singh gave lathi blows on

legs and knees of Ramesh Singh. Raghuveer 3

Singh Meena came to the rescue of Ramesh Singh,

but Accused-1 Tulsiram inflicted luhangi blow

over his right hand. Raghuveer Singh Meena,

hence, immediately ran away from the place of

occurrence. Several injuries were caused by

accused persons to Ramesh Singh. Ramesh Singh

fell down and became unconscious. All the

accused then took Ramesh Singh and threw him in

the pit. Hari Singh, Chandan Singh and Ram

Singh meanwhile came at the place of occurrence

and saw the accused running away from the

place. Ramesh Singh was then taken out of the

pit, was placed in a Matador and was taken to

the Police Station Kumbhraj. Injured Raghuveer

Singh Meena also reached the Police Station.

4. According to prosecution, Ramesh Singh

and injured Raghuveer Singh were plying

passenger-jeep between Kumbhraj to Khatakiya

and Khatakiya to Kumbhraj. The accused persons

demanded Rs.50/- per day, per trip. The

injured, however, did not oblige the accused

which was the route cause and with a view to 4

teach a lesson to Ramesh Singh and Raghuveer

Singh, the accused persons assaulted them.

5. A case was registered against the

accused for offences punishable under Sections

307, 325, 323, 147, 148, 149 and 34 of the

Indian Penal Code (IPC). After usual

investigation, challan was filed in the Court

of Judicial Magistrate, First Class who passed

an order of committal in view of the case being

triable by a Court of Session. The accused did

not plead guilty and claimed to be tried.

6. The prosecution, to prove its case

against the accused, examined fourteen

witnesses. The learned Additional Sessions

Judge held that the prosecution was able to

establish the case beyond reasonable doubt

against the accused and after hearing them,

passed an order of conviction and sentence. The

High Court confirmed the order passed by the

trial court.

7. Against the order of conviction and

sentence, the appellants have approached this 5

Court. Prayer for exemption from surrendering

was rejected by this Court. The appellants

thereafter surrendered and notice was issued.

Records and proceedings were called for. Since

neither exemption from surrendering was granted

nor the accused were enlarged on bail, the

matter was ordered to be posted for final

hearing.

8. We have heard the learned counsel for

the parties.

9. The learned counsel for the appellants

contended that both the courts committed an

error in convicting the appellants. It was

submitted that the genesis of the prosecution

was doubtful as the prosecution has not come

with clean hands. It has suppressed material

facts from the Court. Apart from omissions and

material contradictions in the testimony of

witnesses, even medical evidence does not

support the case of the prosecution. It was

submitted that according to PW4 Dr. A.D.

Chinchurkar, Ramesh Singh had received only 6

three injuries. Ramesh Singh, however, stated

in his evidence that he had received 28

injuries. Ramesh Singh himself has stated

before the Police that there were other persons

over and above accused and even those persons

had assaulted him. Thereafter, however, he

totally turned round and stated on oath before

a Court of law that other persons were not

there. The evidence of injured Raghuveer Singh

is of no use to the prosecution as after

receiving injury, he had left the place and was

not there. The third person (Hukum Singh)

virtually did not support the prosecution.

According to the counsel, the accused persons

were falsely implicated and involved because of

`business rivalry'. Ramesh Singh and Raghuveer

Singh were running taxi without any licence.

When the accused persons objected to such

illegal activity, they were roped in a criminal

case. It was, therefore, submitted that the

appellants are entitled to acquittal. 7

10. It was further submitted that the

courts below had committed an error of law in

not considering the provisions of Sections 360

and 361 of the Code of Criminal Procedure, 1973

(hereinafter referred to as `the Code') which

enjoin the Court to release offenders on

probation of good conduct if the offence is not

punishable with death or with imprisonment for

life. In the instant case, though the charges

were framed for offences punishable under

Sections 307, 325 and 323 read with Sections

147, 148, 149 and 34, IPC, the trial Court

acquitted all the accused for an offence

punishable under Section 307, IPC. The said

acquittal is not challenged and it has attained

finality. The conviction was recorded for

offences punishable under Sections 325 and 323

read with Section 34, IPC and not for an

offence punishable with imprisonment for life.

It was, therefore, obligatory on the Court to

consider grant of probation. Non-consideration

thereof has vitiated the order of sentence. 8

Finally, it was submitted that after the

incident, the accused had remained in jail for

quite some time and even after the order passed

by the High Court in December, 2006, neither

exemption from surrendering was granted nor

they were enlarged on bail and they are in jail

since then. Therefore, even if this Court finds

that the order of conviction and sentence is in

consonance with law, on the facts and in the

circumstances of the case, the period which the

appellants have already undergone in jail may

be treated as sufficient.

11. The learned counsel for the State, on

the other hand, supported the order passed by

the trial Court and confirmed by the High

Court. It was submitted that on the basis of

evidence adduced by the prosecution and

appreciating the depositions on oath of

prosecution witnesses, both the courts below

have recorded a finding that the accused had

committed the offences in question and

convicted them. This Court does not re- 9

appreciate the evidence under Article 136 of

the Constitution and as such, the appeal

deserves to be dismissed. As to non-compliance

with Sections 360 and 361 of the Code, it was

submitted by the counsel that looking to the

facts of the case and the manner in which the

offences have been committed, no benefit of the

said provisions could be extended to the

accused. It was, therefore, submitted that the

appeal deserves to be dismissed.

12. The learned counsel for the appellants

invited our attention to the deposition of PW4-

Dr. A.D. Chinchurkar. He stated that on October

1, 1997 at 5.30 p.m., Ramesh Singh, son of

Madansingh Meena was brought by constable

Rambharose for his medical examination. Ramesh

Singh was unconscious. Whole body with clothes

had been soiled with wet soil. Breathe and

heartbeat was continuing. He found following

three injuries from the person of Ramesh Singh: 10

1. Lacerated wound on scalp of head 6x1 cm x

1 cm scalp thickness deep in middle of

scalp on left side.

2. One lacerated wound in 1x1x0.5 cm area on

backside of head.

3. One lacerated broken wound 2x1x1.5 cm on

left hand with apparent fracture of bone.

13. According to this witness, all the

three injuries appeared to have been caused

with `hard and blunt' weapons. In cross-

examination, the witness stated that Ramesh

Singh had sustained `only three injuries'. He

further admitted that the injuries could not

possibly be sustained with any sharp weapon.

14. Now, reading the evidence of victim

Ramesh Singh, injured and the star witness of

the prosecution, it is clear that according to

him, he was `attacked' by Accused No.1-

Tulsiram, Accused No.2-Bhagwan Singh, Accused

No.3-Roop Singh and Accused No.4-Daku. Bhagwan

Singh had administered farsi blow on his left

hand. Tulsiram had given luhagi blow on 11

forehead and Daku and Roop Singh gave lathi

blows. He stated that in his police statement,

besides names of four accused, he had not

mentioned any other name. In view of the above

statement, the prosecution requested the Court

to declare the witness `hostile' and permission

was sought to put questions which could be put

in cross-examination. Such permission was

granted. It was then brought on record that in

the police statement, the witness had stated

that over and above the accused persons, one

Harsingh Meena, Ramcharan Meena and Harbhajan

Meena were also present with lathis and they

had also inflicted lathi blows on the witness

and had thrown him in the ditch. The witness

though admitted in the cross-examination that

he could not say exact number of injuries he

had sustained but there were more than 28

injuries on his whole body. Out of those

injuries, 5-6 injuries were of grievous nature

and remaining injuries were simple. 12

15. From the deposition of other injured

witness Raghuvir Singh also, it appears that

the prosecution has not come forward with all

facts. In his evidence on oath, Raghuvir Singh

stated that Tulsiram had given wood blow to him

and then stated that Tulsiram had given luhagi

blow to Ramesh and lathi blow to the witness.

The witness then ran away from there out of

fear. According to the witness, after running

away from the place of occurrence, he went to

nursery situated near Khatkiya and then reached

Kumbhraj where he lodged report at Police

Station, Kumbhraj. The witness asserted that

the police had written his report and obtained

his signature on the report. No such report,

however, has been produced by the prosecution

at the trial.

16. PW9-Hari Singh, in his statement

admitted that he had seen the quarrel while

returning from Fadalpur to Kumbhraj. According

to him, the accused persons present in the

Court had beaten Ramesh Singh. The witness 13

intervened in the fight and requested the

accused persons not to beat Ramesh Singh. He,

however, stated that except the witness, nobody

intervened in the fight. Later on, Ram Singh

came there and the witness and Ram Singh pulled

Ramesh out of the ditch. He further stated that

besides the three accused, nobody had beaten

Ramesh.

17. The Addl. Public Prosecutor, in

respect of this witness (Hari Singh) also, made

prayer to the Court to declare him `hostile'

and to permit to put questions which could be

put in cross-examination and the permission was

granted. The witness was then confronted with

his police statement wherein he stated that

Tulsiram Meena, Bhagwan Singh Meena, Roop Singh

Meena and Daku Meena were beating Ramesh Singh

with lathi, luhagi and farsi with intention to

kill him. Though the witness denied it and went

to the extent that the police did not record

his statement, the contradiction had been duly

established. He went to the extent that police 14

had written wrong statement. He denied that

accused Roop Singh Meena had beaten Ramesh

Singh in his presence and that it was wrong

that in collusion with accused Roop Singh, he

was not giving correct evidence.

18. From the above evidence and

discussion, it appears that the prosecution has

not come with clean hands and the genesis

becomes doubtful. The prosecution-witnesses and

in particular the star witness injured, PW5-

Ramesh Singh himself was declared `hostile' by

the prosecution as it was clear that though

initially his case was that over and above four

persons who were before the Court, three other

persons were very much present, but

subsequently, he stated that they were not

present. Not only that three other persons were

present at the scene of offence, but they were

armed with weapons, their common object was to

beat the witness and in fact they attacked the

witness with lathis. The initial case, however,

was subsequently totally changed and the 15

witness had gone to the extent that over and

above four accused before the Court, nobody was

present and he was not attacked and beaten by

anyone else.

19. According to the said witness, he had

sustained several injuries (28 injuries) but

according to the medical evidence, there were

only three injuries on the person of Ramesh

Singh. Further, according to the witness, the

injuries were caused by farsi, luhangi and

sticks. Medical opinion, on the other hand,

goes to show that injuries were possible by

`hard' and `blunt' substance and not by any

`sharp' weapon. All the three injuries referred

to hereinabove also clearly prove it. They were

all lacerated wounds and no incise wound was

found on the person of Ramesh Singh.

20. PW6-Raghuveer Singh's evidence also

was shaky. He was not sure as to with which

weapon, he was beaten. Moreover, according to

him, he lodged a report at the police station 16

on which his signature was taken, but that

report is not forthcoming.

21. PW9-Hari Singh, who had intervened in

the scuffle, was also declared `hostile'. His

evidence also did not go to show that the

incident had happened in the manner deposed by

the prosecution.

22. Considering facts and circumstances in

their totality, evidence of prosecution

witnesses, particularly of the witnesses who

were `attacked', and had been declared

`hostile' (partly or fully) coupled with the

medical evidence, so far as injuries sustained

by PW5-Ramesh Singh is concerned and

withholding of report said to have been lodged

by PW6-Raghuveer Singh, in our opinion, this is

not a case to reach a finding that the accused

had committed the offences with which they were

charged. If it is so, obviously the benefit of

doubt should be given to them. We accordingly

hold that it cannot be said `beyond reasonable 17

doubt' that the accused had committed the

offences with which they were charged.

23. For the foregoing reasons, in our

opinion, the appeal deserves to be allowed and

is accordingly allowed. The order of conviction

and sentence recorded by the trial Court and

confirmed by the High Court is set aside.

24. In view of acquittal recorded by us,

the question of consideration of provisions of

Sections 360 and 361 of the Code and grant of

benefit to the accused does not arise and we

express no opinion thereon.

25. The appeal is accordingly allowed. The

conviction and sentence of the appellants is

set aside.

.................................... .....................J. (C.K. THAKKER)

NEW DELHI, .........................................................J. MAY 13, 2008. (D.K. JAIN) 18