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High Court Of Madhya Pradesh
H. R. Krishnan and S. B. Sen, JJ.
IN RE: KALUSINGH MOTISINGH - Appellant
Versus
STATE OF M P - Respondents
Criminal Ref. 4 Of 1962
Decided On : 10/18/1962
A statement of the deceased made to other caste members before the attack but after the incident earlier in the morning is admissible, not regarding the cause of his death; but as one regarding a circumstance of the transaction which resulted in his death. The declarant need not have been actually apprehending death. AIR 1939 PC 47 and AIR 1960 Born. 290 and AIR 1960 Punj 310 and (1959) 1 Mad. LJ 246, Rel. on. [Para 12
(2) Criminal P. C.-Ss. 162 and 145-earliest report by person not eyewitness to incident -use of report for purposes of corroboration and contradiction.
When an eye-witness gives the earlies report, it can be used for his corroboration and in certain respects for contradiction as well. But when there is no first information that can be used for corroboration on details as is inevitable whenever it is given by some-body other than an eye-witness, the case has to be considered on the evidence available without any Bias. [Para 22
(3) Evidence Act-S. 27 -corpse discovered by police in open filed where police went on information given by accused-it cannot be said that the police discovered the corpse as result of the statement if accused. [Para 31
(4) Criminal P. C.-Ss. 162, 145-Evidenc, Act-S. 154-minor omissions -does not entitle use of S. 162 as amended-S. 162 cannot be used unless witness is declared hostile.
Where witnesses speak about the occurrence again after some months and where the occurrence itself is somewhat elaborate and involves a number of assailants on one side and a number of victims on the other, omissions and tricks of memory in their evidence are only too common. It is altogether unnecessary for the public prosecutor to be upset by such slight omissions or to imagine that the witness concerned was intentionally trying to minimise things The mere forgetting of a point of detail is not evidence of the witness's general disregard for truth or his having gone over to the side of the accused. On the contrary, it may at times be itself a proof that the witness is speaking the truth to the best of his recollection, subject to the obliteration by time of the less conspicuous elements of the picture. In such a case the public. prosecutor should not invoke the amended clause in S. 162, Proviso. [Para 34
After the amendment to S. 162, it has become the practice for public prosecutors to examine the prosecution witnesses themselves with reference to the earlier statements to the police even in cases where the witness does not at all seem to ,have turned hostile and where at all events, the public prosecutor does not allege it. [Para 35
Even if a witness is declared hostile and is cross-examined under S. 154, Evidence Act the value of his evidence would depend upon all the circumstances and would not, merely because of the cross-examination, become suspect. It is however, to be noted that any such use of the previous statement for the purpose of contradiction is cross-examination properly so called. Though S. 162 does not me the word "cross-examination", S. 145, which has referred to it, itself clearly provides that "the witness may be cross-examined as to previous statements". It is not conceivable how such statement can be used except for the purpose of contradiction by way of cross-examination. Now, cross-examination is normally the right of the party opposing the one which calls a witness. If, however, that party itself wants to cross-examine him, then it has to seek the leave of the Court for putting questions to him which might be put in cross examination by the adverse party. This is under S. 154, and it is the established practice that a Court would not give leave to the party calling a witness to question him under S. 154 until it is satisfied that there is one hostility or adverseness displayed by the witness to the very party on whose behalf he has come to give evidence. If his memory plays a trick in regard to a detail, and he does not in any other manner go back on his previous statement, or show any disinclination to tell the truth, then he is not hostile or adverse. In other words, he cannot be cross-examined and therefore the statements made by him to the police cannot be used in the manner provided in the amendment. [Para 35
(5) Evidence Act-S. 3-appreciation of evidence.
Witnesses in our Courts do exaggerate and at times give wide omnibus statements; the Court should scrutinize with special care. This is only a rule of prudence. As far as possible, Courts have to see whether the presence and the part attributed to any of the accused is given with a precision and circumstances that could be reasonably expected in the context. [Para 37
(6) Penal Code-Ss. 141, 149, 302-unlawful assembly-common object- carrying of weapons-conviction under S. 149 read with S. 302 held justified.
Mere presence in a crowd cannot render anybody liable, unless there was a common object and he was actuated by the common object and that object was one of those set out in S. 141 Indian Penal Code. [Para 41
If persons go in a single crowd most members of which are shouting that the persons of other groups should be killed, and subsequently seeing eight or ten of the other group at one place set up on them, then the principle given in AIR 1956 SC 513 has no application. Some unmistakable overt act contributing to the prosecution of the common object should always be proved before a pesson is convicted for membership of an unlawful assembly or for rioting. Mere presence will not usually be that unmistakable act; but presence plus the carrying of weapons will bring him nearer to the common object, unless he explains why he carries the weapon concerned. If, in addition to presence and weapons, there are cries clearly indicating a determination to attack members of another group, the position is stronger still against him. Finally, while going in the crowd with the war cries, if he marches along with the others into the opposing group and uses his weapon, then it is complete evidence of membership of the assembly. [Para 42
Actually in every case under S. 149, it is not necessary that the common object should directly be to commit a particular offence. It is sufficient that tae particular remit was such that the members of the assembly knew to be likely to be committed in the prosecution of that common object. [Para 43
Where the assembly of persons openly shouting that the members of the opposite party should be killed attacked the opposite party, and the members of the attacking party knew that five members of their party carried open swords, and in the riot that followed some persons of the attacked party were killed with sword wounds, conviction of all the members of the attacking party under S. 149 read with S. 302 is justified. [Para 43
( 1 ) ALL the three proceedings arise out of the Judgment of 30-6-1962 by the learned additional Sessions Judge, Ujjain, in the trials numbered 24 to 28 of 1962, on the consolidation of five separate commitments by the First Class Magistrate Khach rod, relating to a serious incident, on the 2oth September, 1961, at village called bhilsuda, in the police station area of Nagda. The death reference has been made for the confirmation of the sentence of death under Section 302 read with 149 indian Penal Code on six persons, namely, Kalusingh, Nir-bhayasingh, Ambaram, jujharsingh, Ratansingh son of Hindusingh, and Chhatarsingh. They, as well as ten others, namely, Anarsingh son of Ramsingh, Bagdiram son of Bherusingh, bherusingh son of Rupaji, Ramsingh son of Fakkaji, Pyarji son of Ghasi, onkarsingh son of Bherusingh, Ratansingh son of Amarsingh, Hindusingh son of narsingh, Navalsingh son of Sewaji and Dhanna son of Bheru-singh have appealed in two batches. Those who have not been sentenced to death, have also been convicted under Section 302 with 149 Indian Penal Code and awarded imprisonment for life. In addition, there are convictions of all these persons under sections 147 and 149 Indian Penal Code with sentences respectively for two years and three years which are to run concurrently with the sentences under Sections 302/149. All the charges here, it may be noted, (are) as recast in the Sessions court. One more accused was on trial, she being Nandibai wife of Hindusingh. She was acquitted by the learned Sessions Judge; but she will be referred in course of the Judgment in connection with the facts.
( 2 ) THESE sixteen appellants are all Bhils most of them closely inter-related and fall into three groups, the most important and numerous being that of Hindusingh and including Hindusingh himself and his two sons Ratansingh and Chhatarsingh and his two nephews Ambaram and Jujharsingh sons of his brother Tamsingh, and kalusingh another nephew being the grandson of a first cousin, and Pyarji son of ghansi who is the brother-in-law of Jujharsingh; the group of Bherusingh including bherusingh himself and his three sons Dhanna, Bagdifam and Onkarsingh; in the same group there id Navalsingh who is Bherusingh's uncle and Anar-aingh bherusing's' first cousin through another uncle. The appellants Pyarji and jujharsingh are also related to this group, having married two cousins of navalsingh. The remaining three namely, Ramsingh son of Fakkaji, Nirbhayasingh son of Bhag-wansingh and Ratansingh son of Amarsingh, are not directly interrelated but are connected indirectly with members of one or the other of the two main groups, that is, Ratansingh son of Amarsingh is the brother-in-law of nirbhayasingh who is a relation by marriage of the Hindusingh family. Eamsingh son of Fakkaji is a foster brother of Kalusingh's wife having ceremoniously tied a rakhi to her which in this group is said to imply brotherly loyalty. Of the whole lot, the Hindusingh group and Hindusingh personally, are the virtual leaders and are spoken of as the patel's family and the patel, though it is not clear whether the particular office is held by Hindusingh himself or one of his brothers. The largest element in the village are the Bhils who unlike their fellow tribesmen elsewhere in the State, are here a settled agricultural population with some modicum, of literacy; the point is that they claim to be, high caste Hindus, not much inferior to the Rajput Thakurs. Next in numbers in that village come the bagris who are considered to be a much lower caste; besides, they are comparative new-comers to the village and the evidence shows that they are looked upon by the Bhils with some dislike and general unfriendliness; but till this incident the differences between the two groups in general have been little more than the usual type of village quarrels about cattle trespass and the like. The bagris had throughout tacitly accepted a position of inferiority to the Bh
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