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IN THE HIGH COURT OF MADHYA PRADESH
Atul Sreedharan and Sunita Yadav, JJ.
Narbad Ahirwar & Another v. State of M. P.
Criminal Appeals No. 763 of 2006,899 of 2006, 929 of 2006,
1144 of 2006 and 592 of 2009 (Jabalpur): against the judgment and sentence dated 12.4.2006 passed by the Additional Sessions Judge, Khurai, District Sagar in Sessions Trial No. 394/2004; Decided on 25.10.2021
(1) Witness -- interested witness -- relative -- ordinarily aclose relation would be last to screen real culprit and falsely implicate innocent person -- relationship or partisan nature of evidence only puts Court on guard to scrutinize evidence more carefully -- interestedness of witness has to be considered, not just that he is interested. [Para 25
(2) Witness -- contradictions and omissions regarding part played by each appellant -- several assailants part of unlawful assembly -- often not possible for witnesses to describe accurately the part played by each, or to remember each and every blow delivered to victim -- eye witnesses rustic villagers -- some omissions and contradictions are normal considering lapse of time, their state of trauma and shock while watching their brother/husband and parents being killed -- being close relatives, their presence at place of occurrence is expected. [Para 26
(3) Witness -- site plan does not indicate places where accused persons and eye witnesses were standing and saw incident -- such omission would not create doubt about presence of eye witnesses. AIR 1962 SC399, AIR 1956 SC 526 and (1996) 8 SCC 199 followed. [Paras 34 to 36
(4) Evidence -- site plan is not sub-stantive evidence. (2003) 11 SCC 280 followed. [Para 38
(5) Investigation -- FIR not registered immediately after receiving information -- Investigating Officer deposed that victims were very critical and he wanted to provide medical aid therefore he left police station immediately after receiving information -- evidence of eye witnesses trust worthy and natural -- merely on ground that there is some defect in investigation,doubt not created about statements of eye witnesses. (2002) 3 SCC 57 followed. [Para 39
(6) Evidence Act, 1872 -- S.8 -- motive -- case based on ocular evidence -- issue of motive becomes totally irrelevant when there is direct evidence of trustworthy witnesses -- motive is primarily known to accused himself -- may not be possible for prosecution to explain what actually prompted him to commit crime. AIR 1973 SC 55 followed. [Para 40
(7) Penal Code, 1860 -- Ss. 302/149 and 148 -- case of prosecution proved beyond reasonable doubt -- nothing on record to show that appellants received any grave or sudden provocation from victims or that appellants had lost their powerof self-control from any action of victims -- conviction in accordance with facts and law. [Paras 16, 19, 33, 41 & 42
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¼3½ lk{kh && LFky ekufp= esa og LFkku minf'kZr ugha tgk¡ vfHk;qDr vkSj izR;{kn'khZ lk{kh [kM+s Fks vkSj tgk¡ ls mUgksaus ?kVuk ns[kh && ,sls yksi ls izR;{kn'khZ lk{khx.k dh mifLFkfr ds ckjs esa lansg mRiUu ugha gksxkA , vkb vkj 1962 ,l lh 399] , vkb vkj 1956 ,l lh 526 rFkk ¼1996½8 ,l lh lh 199 vuqlfjrA ¼iSjk 34 ls 36
¼4½ lk{; && LFky ekufp= eq[; lk{; ugha gksrkA ¼2003½11 ,l lh lh 280 vuqlfjrA ¼iSjk 38
¼5½ vUos"k.k && bfÙkyk izkIr gksrs gh izFke bfÙkyk fjiksVZ jftLVªhÑr ugha
&& vUos"k.k vf/kdkjh us vfHklk{; fn;k fd vkgr vR;f/kd ladVkiUu Fks vkSj og fpfdRlh; lgk;rk nsuk pkgrk Fkk blfy, bfÙkyk izkIr gksrs gh og iqfyl Fkkus ls fudy x;k &&izR{kn'khZ lk{khx.k dk lk{; Hkjkslsean vkSj LokHkkfod && ek= bl vk/kkj ij fd vUos"k.k esa dksbZ =qfV gS] izR;{kn'khZ lk{khx.k ds dFku lansgkLin ugha gksaxsA ¼2002½3 ,l lh lh 57 vuqlfjrA¼iSjk 39
¼6½ lk{; vf/kfu;e] 1872 && /kkjk 8 && gsrq && ekeyk pk{kq"k lk{; ij vkèkkfjr && Hkjkslsean lk{khx.k dk izR;{k lk{; gks rks gsrq dk iz'u iw.kZr% vlaxr gks tkrk gS && gsrq izkFkfedr% Lo;a vfHk;qDr dks Kkr gksrk gS && vfHk;kstui{k ds fy, ;g Li"V djuk laHko ugha Hkh gks ldrk fd okLro esa fdl dkj.k og vijkèk djus ds fy, m|r gqvkA , vkb vkj 1973 ,l lh 55 vuqlfjrA ¼iSjk 40
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JUDGMENT
Yadav, J. -- 1. The appellants have filed these appeals being aggrieved by the judgment and order dated 12.4.2006 passed in Sessions Trial No.394/2004 by the learned Additional Sessions Judge, Khurai Distt. Sagar (M.P.) whereby each appellant has been convicted for the offence punishable under sections 302/149 of the Indian Penal Code (three counts) for committing the murder of Shribai, Ram Singh and Pratham Singh and sentenced to undergo life imprisonment and a fine of Rs.1,000/-(three counts), failing to pay fine, additional rigorous imprisonment for one year and also committing the offence under section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 1 year and a fine of Rs.500/-, in default of payment of fine, to undergo further six months additional imprisonment.
2. As per letter dated 25.8.2021, the Office Of SHO, Khurai District Sagar and postmortem report dated 9.9.2019 it appears that appellant No.1 Narbad Ahirwar S/o Ganesh Ahirwar (Criminal Appeal No.763/2006) and appellant No.2 Kammod Ahirwar S/o Munna Ahirwar (Criminal Appeal No.899/2006) have died during the pendency of appeals on 24.10.2014 and 9.9.2019 respectively. Therefore, these appeals so far it relate to appellant no.1 Narbad Ahirwar S/o Ganesh Ahirwar and appellant no.2 Kammod Ahirwar S/o Munna Ahirwar, stand abated.
3. The prosecution case in nutshell is that a civil case regarding the Patta of a piece of land was running between deceased Ram Singh and the accused persons/appellants at Tehsil Court, Khurai. Deceased Shribai was the mother and deceased Pratham Singh was the father of Ram Singh. On 30.6.2004 Ram Singh was returning home after attending the Court hearing of the said civil case. The complainant Janki (PW-1) along with her family members was sitting in front of their house and waiting for Ram Singh to come home. At about 9:30 PM the complainant saw her brother coming towards their house. At that very moment accused Veer Singh came and hit Ram Singh with an axe on his neck. Co-accused Bhuvani Singh also gave a blow of axe over Ram Singh’s chest. When Ram Singh raised an alarm, his parents Shribai and Pratham Singh rushed to rescue him. Immediately thereafter other accused persons armed with axes and lathis arrived and started hitting Shri Bai, Pratham Singh and Ram Singh. With the blows of lathis and axes injured Ram Singh, Shri Bai and Pratham Singh fell down dead on the spot.
4. The further story of the prosecution is that one Kunjan Singh (PW-13) went to the Police Station Khurai and informed the SHO J.D. Bhosle (PW-16) about the incident. PW-16 J.D. Bhosle arrived at the place of occurrence and registered the Dehati Nalishi Exhibit-P/1 at the instance of the complainant Janki Bai who is the daughter of Shribai and Pratham Singh and sister of Ram Singh and thereafter registered the FIR Exhibit-P/9 on the basis of Dehati Nalishi. After conclusion of the investigation a charge sheet under sections 147,148,149,302 of IPC was filed against the appellants.
5. The trial Court framed charges under sections 148, 302, 302/149 of IPC. The appellants denied the charges and claimed to be tried. Trial was conducted and evidence were led by the parties. Trial Court convicted the appellants for the offences under sections 302/149 (three counts) and 148 of the IPC and sentenced them as referred therefore.
6. The learned counsel for the appellants submitted that the trial Court grossly erred in holding the appellants guilty for committing the murder of Ram Singh, Shribai and Pratham Singh. Learned trial Court should have seen that the evidence of prosecution witnesses Janki (PW-1), Savitri bai (PW-2), Onkar (PW-7) and Girwar (PW-10) ought not to have been believed because they are interested witnesses being the family members of the deceased persons. Investigation is faulty and the conviction based on such faulty investigation as well as evidence of interested witnesses is perverse and liable to be set aside. The
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