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Hansiya and ors. Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Appeal No. 256/1980
Judge
Reported in1984WLN70
AppellantHansiya and ors.
RespondentThe State of Rajasthan
DispositionAppeal Allowed
Cases ReferredIn Iswarsingh v. The State of Uttar Pradesh
Excerpt:
criminal trial - motive--motive is not an ingredient of an offence--it recedes to back ground when there is direct evidence--held, absence of motive is a circumstance for evaluating prosecution evidence.;the absence of motive has no material bearing when there is direct evidence showing the complicity of the accused in the commission of the offence. motive is not an ingredient of the offence of murder and when there is direct evidence of eye witnesses, motive recedes to the background. but at the same time, absence of motive is always a circumstance for assessing the evidence adduced to prove the guilt. absence of motive requires that the evidence of the eye witnesses has to be very closely, carefully and cautiously examined. since no motive has been alleged in the instant case, the fact.....s.s. byas, j.1. by his judgment dated may, 21 1980, the learned additional sessions judge, sirohi convicted the accused umia under section 302 and the remaining two hansiya and bediya under section 302/34, ipc and sentenced each of them to imprisonment for life, with a fine of 100/-, in default of the paymant of fine to further undergo one month's rigorous imprisonment. they have come up in appeal to challenge their conviction and sentence.2. succinctly stated, the prosecution case is that the deceased-victim indersingh was an elder brother of pw 2 daljeetsingh and lived in village meerpur which is nearly two miles away from village wilangiri district sirohi. in the early hours of 1-11-78 (the next day of deepawali) indersingh left his house on a cycle to go to village bodawa. on his way.....
Judgment:

S.S. Byas, J.

1. By his judgment dated May, 21 1980, the learned Additional Sessions Judge, Sirohi convicted the accused Umia under Section 302 and the remaining two Hansiya and Bediya under Section 302/34, IPC and sentenced each of them to imprisonment for life, with a fine of 100/-, in default of the paymant of fine to further undergo one month's rigorous imprisonment. They have come up in appeal to challenge their conviction and sentence.

2. Succinctly stated, the prosecution case is that the deceased-victim Indersingh was an elder brother of PW 2 Daljeetsingh and lived in village Meerpur which is nearly two miles away from village Wilangiri district Sirohi. In the early hours of 1-11-78 (the next day of Deepawali) Indersingh left his house on a cycle to go to village Bodawa. On his way when he reached Wilangiri, one of the wheels of his bicycle got punctured. He contacted Rama (PW 6) and with his help got the puncture repaired. Rama and Indersingh proceeded together on the road leading to village Kalandari. Rama was holding the bicycle. When they covered a few paces on the road, the three accused-appellants accompanied by five more persons viz, Sadiya, Goma, Chimaniya, Tariya and Hatta (co-accused but acquitted) came from behind armed with lethal weapons. Accused Unia had a Khunt (sharp edged instrument of cutting), Goma had a Bewla and the remaining six had Lathies. They encircled Indersingh and started striking blows to turn with their weapons. Indersingh fell down. The miscreants then lifted him and took him towards the house of Goma. Pw6 Rama tried to intervene but could not. He got frightened and went away putting the bicycle outside the house of Dharma Bhil. PW 2 Salamsingh, who was in the house of Dharma, along with Dharma Bhil, Kana and Chamna Rajputs situate nearby, seeing the occurrence came out and asked the and asked the accused not to do so. Tariya threatened him with dire consequences in case he dared to come out. Salam Singh immediately went to Meerpur and apprised the victim's brother Daljeetsingh (PW) of the incident at about 9.00 or 9.30 A.M. Daljeet Singh bearded the bus reached Police Station Anadara and verbally lodged report Ex.P 1 of the occurrence at about 11.45 A.M. The police registered a case and proceded with investigation. The Station House Officer Shri Jagdish Singh (PW 9) arrived at the place of incident and inspected the site. He took the blood-stained soil from the various places where the victim was beaboue l and his dead-body was found. The Investigating Officer prepared the site plan and the inquest report of the victim's dead body. PW 5 Dr. D C. Bapna the Medical Officer Incharge, Government Dispensary, Anadara was called on the spot. He performed the autospay of the victim's dead body at about 4.00 P.M. on the same day. The doctor found the following injuries:

External-

(1) As incised wound 9 x 1 cm x bone deep situate on the scalp 2 5 cm above the left eye brow, internal and was 9 cm above the left external ear

(2) Incised wound 4 x 1/3 cm x bone deep horizontally situated just above the left eye brow

(3) Lacerated wound 1/2 x 1/2 cm just below the medial end of right eye brow. This was also bone deep

(4) An angular lacerated wound 1.5 x 1/3 cm on upper arm and lower arm 3/4 x 1/3 cm x bone deep around the lateral angle of right eye

(5) Lacerated wound 1/2 x 1/3 cmxbone deep just 1/2 cm on the left side of nasion

(6) Lacerated wound 1/2 x 1/3 cm x bone deep at the base right alaensai

(7) A punctured wound 1/2 x 1/3 cm opening in the mouth, 1.5 cm below the lateral to the left angle of mouth

(8) Lacerated wound 1.5 x 1 cm x bone deep situate on the left side of chin 2.5 cm below the left angle of mouth

(9) Lacerated wound 2 x 1/3cmx bone deep 1.5 cm below the chin on the mid line

The wounds of injuries No. 8 and) were connecting and opening in the mouth

(10) Upper left incisor was missing with fresh wound socket

(11) Upper and lower jaw both fractured at multiple places with all teeth present except one incisord

(12) Two oblique bruises 13.5 x 2 cm was 13 x 2 cm situated side by side on the right side of chest, 3 cm below the right nipple

(13) Bruise 7 x 1.5 cm just below the left nipple

(14) Bruise 5 x 2.5 cm situated the anterior side of left shoulder

(15) Abrasion 3 x 1 cm with 1/2 x 1/2 cm x bone deep lacerated wound in the centre, situated on the left skin of tibia at the junction of upper 2/3 and lower 1/3 of leg

(16) Lacerated wound 1/2 x 1/2 cm just below the left tibial tuberosity

(17) A linear abrasion 3 cm long on the skin of right tibia

Internal-

Cranium and spinal cords-Scalp, skull and vertebrae-fractures present as mentioned in injuries No. 2 and 3 (external)

Heart-Right side contained little blood and left side was empty Both lungs were healthy and pale

stomach and its contents-There was little fluid present Both intestiner were empty

Liver, spleen and kidney were healthy and pale

Bladder was empty

Fractures and dislocations-Both frontal bones, nasal, orbital bones right upper and lower jaw were having multiple fractures

3. The injuries were ante-mortem. In the opinion of Dr. Bapna, the cause of death of the victim was multiple injuries leading to excessive heomorrhage and shock. He was also of the opinion that the injuries found on victim's body were collectively sufficient in ordinary course of nature to cause death. He was further of the opinion that injuries No. 1 and 2 were also individually sufficient in the ordinary course of nature to cause the death. Injuries No. 1 and 2 could be caused by a sharp-edged weapon like Khunt. The post mortem examination reports prepared by him are Ex. P 9 and Ex. P 10. The accused persons were arrested and in consequence of their information furnished by them whilst under Police custody, Khunt and Lathies were recovered. The blood-stained clothes of the victim and of some of the accused persons were also seized and sealed. The articles were sent for chemical examination. Blood was found on them. On the completion of investigation, the police submitted a challan against the three accused-appellants in the court of Munsif and Judicial Magistrate, Sirohi, who in his turn committed the case for trial to the Court of Sessions. The learned Additional Sessions Judge, Sirohi framed charges against them under the appropriate Sections of the Penal Code. The accused-appellants pleaded not guilty and faced the trial. The prosecution examined 11 witnesses and concluded its evidence and the accused-appellants were examined under Section 313. Cr. PC. Thereafter the learned Public Prosecutor moved an application on 25-3-79 under Section 319, Cr. PC that five persons viz., Goma, Tariya, Chamaa, Soniya and Hatta be also impleadd and summoned to face trial. The learned Sessions Judge allowed the sail application by his order dated 29-8-79. The aforesaid five persons were summoned to face trial. The learned Additional Sessions Judge framed the charges under Sections 148, 302 and 302/149 IPC against all the eight accused, to which they pleaded not guilty and faced the trial. In the course of trial, the prosecution examined 12 witnesses and filed some documents. In defence, the accused examined one witness Mst. Jamna (DW 1) daughter of Goma (accused but acquitted). The evidence led in defence is that Jamna was married in the vicitm's village. A day before Deepawali the victim caught hold of her when she was coming from the field and committed rape upon her. She disclosed the matter to her husband and in-laws. Since Indersingh was a Rajput and of ferocious type, they advised her to go to her parents. She thereafter came to her parents is village Willangir. On the next day of Deepawali, the accused came to her parents' house on bicycle with a hockey-stick in his hand. Her parents and brothers were then in their field. The victim abused her and asked her as to why she had come from Meerpur to Wilangiri. He thereafter started dragging her. She lifted a Lathi lying nearby and struck blows to the victim with it. Indersingh fell down outside her house. On the conclusion of trial, the learned Additional Sessions Judge found the prosecution story substantially true as against the three accused-appellants. He found no merit or truth in the defence version. The learned Sesssions Judge was of the opinion that no offence stood proved against accused Sadiya, Goma, Chimaniya. Tariya and Hatta (who were impleaded under Section 319, Cr. PC during trial). They were consequently acquitted. The accused-appellants were convicted and sentenced as mentioned at the very outset. Aggrieved against their conviction and sentence, they have come-up in appeal.

4. We have heard the learned Counsel appearing for the accused-appellants and the learned Public Prosecutor. We have also gone through the case file carefully.

5. Before dealing with the contentions advanced on behalf of the appellants, we may say that the opinion of Dr. Bapna (PW 5) relating to the cause of death of the victim was not challenged before us. We have gone through the statements and find no reason to discard his opinion. It therefore, stands established that the death of victim Indersing was not natural but homicidal.

6. It was streneously contended by the learned Counsel for the appellants that their conviction was wholly erroneous and unsustainable. Various grounds were canvassed by the learned Counsel to assail the conviction which, for the sake of convenience, may be classified as under:

(1) The prosecution allged no motive. The absence of motive destroys the very backbone of the prosecution case;

(2) PW 1 Salamsingh and PW 6 Rama had not seen the occurrence. Their evidence was wrongly accepted as true by the trial court. They were merely chance-witnesses whose presence on the spot was highly doubtful. They were falsely introduced as ocular witness of occurrence;

(3) the testimony of 1 W 3 Chhagan Lal is purely hear-say and it cannot be read in evidence for any purpose;

(4) the prosecution is guilty for not examining the independent witnesses who had seen the occurrence. Dharma, Kana and Chamna who were admittedly with PW 2 Salamsingh in the house of Dharma and are alleged to have seen the occurrence, have not been examined. So also the hotel-keeper and other persons whose presence at the time of alleged occurrence has been admitted by PW 6 Rama, have not been examined. The prosecution has furnished no explanation for not producing them in evidence, and

(5) the recovery or weapons has been made but the weapons have not been connected with the commission of the offence. The report of the Serologist was not obtained.

7. Taking the first contention, it can be said without the least hitch that the prosecution has alleged no motive as to why the victim was done to death by the appellants. It is really curious that murder was alleged to have been committed by the appellants without any motive. P W 1 Daljeetsingh, who is a real brother of the victim, nowhere stated that there was any bad-blood between the victim and the accused. However, the absence of motive has no material bearing when there is direct evidence showing the complicity of the accused in the commission of the offence. Motive is not an ingredient of the offence of murder and when there is direct evidence of eye witnesses, motive recedes to the background But at the same time, absence of motive is always a circumstance for assessing the evidence adduced to prove the guilt. Absence of motive does require that the evidence of the eye witnesses has to be very closely, carefully and cautiously examined. Since no motive has been alleged in the instant case, the fact will have to be kept in mind while scrutinising and evaluating the prosecution evidence.

8. Coming to the second contention, it may be said that the whole prosecution case against the appellants rests squarely on the testimony of two witnesses viz., PW 2 Salamsingh and PW 6 Rama, each of whom claims to have seen the occurrence. The court below accepted as true what they testified against the appellants. It was contended by Mr. Singhi, learned Counsel for the appellants that the testimony of these two witnesses has been wrongly relied upon by the trial court.

9. PW 2 Salamsingh deposed that at about 6.00 or 7.00 A.M. on the day of occurrence, he was at the house of Dharma Bhil where he had gone to hire the services of his son. Kana and Chamna were also with him there. While they all were sitting in the house of Dharma, he heard the cries 'MAARO MAARO' raised on the road. He and Chamna, Kana and Dharma came out. He saw victim Indersingh lying on the ground. The appellants and their five associates (co-accused who have been acquitted) were striking blows to the victim Accused-appellant Unia had a Khunt, Goma (accused acquitted) had a Bewla and the remaining six had Lathies. He asked the accused not to do so. Tariya (accused acquitted) threatened him not to come near otherwise he too would meet the same fact. The accused lifted the victim and took him towards their house. The witness continued that thereafter he went to village Meerpur and narrated the incident in full (Saari Haqiquat) to the victim's brother Daljeetsingh. He told the names of all the eight assailants to Daljeetsingh. Daljeetsingh left for the Police Station. He went to back to Kalandari. The police arrived thereat about 1.00 P.M. He stated that at the time of occurrence he had seen Rama (PW 6) with a bicycle.

10. P W 6 Rama deposed that before sun-rise on the day of incident Nawa (PW8) came to him house and told him that he was being called by the deceased-victim Indersingh. When he came out, he found Indersingh with a bicycle. Indersingh told him that one of the wheels of his bicycle had got punctured and it was to be repaired. From there they went to the hotel of one Moda, from there to the house of one Desa and thereafter at the shop of one Rajmal, from where solution was purchased. The puncture was repaired. Thereafter he and Indersingh started together on the road running to village Kalandari. When they covered a little distance, the accused-appellants accompanied by five more persons came from behind. Accused Unia had a Khunt, Goma had a Biwla and the remaining six had Lathies. The miscreants surrounded Indersingh and started beating him with their weapons. Indersingh fell down and there was profuse bleeding from his wounds. The witness stated that he got frightened and leaving the bicycle outside the house of Dharma Bhil, ran away towards the village. He further deposed that he bad seen Salamsingh (PW 2) a the house of Dharma Bhil when the incident was taking place.

11. The learned Additional Sessions Judge accepted the testimony of these two witnesses as true and reliable in respect of the accused-appellants but not in respect of the remaining five.

12. The pertinent question is whether the approach of the learned Additional Sessions Judge is proper. Mr. Singhi appearing for the accused-appellants vehemently contended that these two persons had not seen the/ incident and were falsely introduced as ocular witnesses to depose against the accused-appellants. The serious criticism against them is that they are merely chance witnesses whose presence on the spot is highly doubtful.

13. There is, now, no presumption of perjury against the oral testimony. But before action upon such testimony its crediblity should be tested both intrinsically and extrinsically. If the presence of these witnesses near about the scene of occurrence is doubtful, the whole structure of the prosecution case must fall to the ground. The contention that these two witnesses are merely chance witnesses requires serious consideration. A chance witness is a witness who could not normally be, where and when he professes to have been. If the presence of a witness is assured and the witness is present at the time of occurrence, he cannot be taken as chance witness. If the presence of a witness is there, it is immaterial that he is inmical towards the accused. Therefore, in assessing the value of the evidence of eye witnesses, the principal consideration is whether in the circumstances of the case it is possible to believe their presence at the scene of occurrence or in such situation as would make it possible for them to witness the facts deposed by them.

14. In the instant case, PW 2 Salamsingh alleges that he went to the house of Dharma Bhil situate nearby the place of occurrence to hire the services of his son for his fields. On hearing the cries, 'MAARO MAARO' he came out and saw the incident. Salamsingh(PW 2) is not a resident of the locality where the occurrence took place. As (sic)rmally he could not be present at the house of Dharma Bhil unless t(sic) son stated by him is taken true. The difficulty is that it was early in the n(sic)ag that the incident took place and it was the next day of Deepawali when the people go to others for exchange of greetings. In these circumstances the reasons stated by PW 2 Salamsingh for his presence at the house of Dharma Bhil cannot be readily believed, he saw the whole incident happening before his eyes and yet he did not raise the cries. After all in the house of Dharma Bhil, he was not alone. There were Chamna and Kana Rajputs along with Dharma Bhil there. If this witness and these three persons wanted to protect the deceased-victim, they could have easily done so. Atleast they could have raised the cries arid could have gathered the villagers to avert the occurrence. PW 2 Salamsingh did nothing to avert the occurrence. That casts serious doubt on his presence at the house of Dharma Bhil when the incident is alleged to have taken place. His conduct is most unnatural and induces us to hold that he is not a witness of sterling worth.

15. There are then major contradictions in the statements given by him during investigation and during trial. In the FIR Ex. P 1 lodged on the information supplied by him to Daljeetsingh (PW 1), the names of five misceamts have been mentioned. The name of accused-appellant Badiya is missing in Ex. P 1. In his police statement Ex. D 3 (also marked as Ex. D 2) ho deposed there were eight miscreants who made an assault on the deceased-victim and put him to death. But in his police statement Ex. D 4 (also marked Ex. D 1) he deposed that there were only three misrceants viz. accused appellant Hansiya, Badiya and Unia who made an assault on the deceased-victim and caused his death. When he was confronted with specific portion in Ex. D 4 relating to the three assailants only, he took the easy resort of not giving such a statement during the investigation. In the FIR, the weapons mentioned are only Lathies. But during trial, this witness introduced Khunt (sharp edged instrument of cutting) to be with accused Unia. In his police statement Ex. D 3 (Ex. D 2) he deposed that Khunt was with accused Sawiya (acquitted by the Court below). This improvement again casts serious doubt on the truthfulness of this witness. In cross-examination, be stated that he saw PW 6 Rama at the time of occurrence and thereafter only on next day. But that again is not true. PW 1 Daljeetsingh admitted that Rama (PW 6) was present when he and the police reached the place of occurrence at about 1.00 or 1.30 P.M. on the very day of occurrence. In his police statement Ex. D 4 (Ex. D I) he stated that many villagers had collected after the dead body was being taken by the culprits. This portion is C to D in Ex. D 4. But the witness denied to have given this staten ent before police. He, thus, stands self-contradicted by his various statements.

16. The testimony of PW 6 Rama also suffers with the same infirmities and on many grounds his testimony is worse than that of PW ' SalamSingh. During trial, he deposed that accused Unia had Khunt with him but in his police statement Ex. D 6 (also marked as Ex. D 3) he deposed that it was the culprit Sawiya (accused acquitted) who had a Khunt with him, with which he inflicted the blows to the deceased-victim. He could not explain this contradiction when put to him in cross-examination He professes to be with the deceased-victim through out the incident but he could not state who out of the culprits struck first of all to the victim. He also did not raise cries to attest the people to protect the deceased-victim from the assaults of them's bed persons. It may be that due to fear to his own person he was not in (sic) position to physically intervene to protect the deceased-victim from the assaults of the culprits but none could check him from raising the cries and gathering the villagers to help the victim'. PW 2 Salamsingh admitted that he had seen this witness Rama with the deceased-victim through out the incident. The FIR was lodged on the information furnished by Salamsingh to PW 1 Daljeetsingh. Salamsingh (PW 2) admitted that he had narrated the whole incident to Daljeetsingh. Naturally, therefore, he must have disclosed the name of this witness Rama (PW 6) to Daljeetsingh. And yet strangely enough the name of this witness is missing in the FIR Ex. P 1. The worst feature in his testimony is that according to him, after the incident he straight-away went to his house or field and disclosed the incident to none. Of course, in his police statement Ex. D 7 (portion marked G to H) he stated that he ran for safety raised the cries and in the way he met Rama Harijan and Sultao, to whom he narrated the incident. But he denied to have given this statement before police. He repeated the same statement in his another police statement Ex.D 6, he also denied. The reason for his denial is apparent because Rama and Sultan have not been produced by the prosecution in evidence. During trial he deposed that before he was examined by police, he did not disclose .his incident to any body. The fact that the eye witness does not divulge the names of the murders to any of the several persons to whom he meets,casts a serious doubt on his testimony. He was present at the time of inquest of the victim's deadbody by police. His presence has been admitted at the time by PW 1 Daljeetsingh. The conduct of PW 6 Rama in silently seeing the occurrence, not raising the alarm, disclosing the incident to none etc. and disclosing the incident to the police even at the time of the inquest, though present, meekly leaving the place of incident and going to his field, are the major factors which can not be eassily brushed aside. These facts which cast serious doubt on his conduct, derive us to the irresistible conclusion that in fact he bad not seen the occurrence where and when it took place. The omission of his name in the FIR Ex.P 1, in these circumstances assumes a vital significance which can not be lightly passed over.

17. Both these witnesses PW 2 Salamsingh and PW 6 Rama were not examined by the police on the very day of occurrence when the Investigation Officer arrived at the site in the noon though both these witnesses were present there and available for interrogation. In the context of these premises we are of the strong opinion that both these witnesses have been falsely introduced as ocular witnesses of the incident.

18. Admittedly there is nothing on record to show that these two witnesses have any grudge against the accused-appellants. But even if there is no enmity three persons who give false evidence either because they are interested or they are influenced or they are coerced or threatened. Merely because no enmity is established between the deceased-victim and the witnesses, it can not be held that they were uninterested or independent witnesses, especially when the evidence given by them shows that they were tutored to give one and the same version of the sequence of events in almost identical words. They stand contradicted on the similar points with reference to their statements recorded during investigation. It may also be pointed out that the evidence of these two witnesses has been found unreliable and untrue in respect of as many as five acquitted accused persons. In these circumstances, it is difficult to accept their remaining part of evidence as wholly reliable against the the accused-appellants in absence of corroboration from independent sourece. We are quite conscious that the maxim FALSUS IN UNO FALSUS.IN OMNIBUS' is merely a rule of caution and has not come to occupy a rule of law in our courts. Nevertheless the fact remains that where the witnesses are untruthful as to the greater part of their evidence, it is dangerous to convict the accused on the residue of their evidence without corroboration. The evidence of Salamsingh (PW 2) and PW 6 Rama cannot be taken to corroborate each other because both of them are false witnesses. There can be no corroboration of a false or doubtful witness by another witness of the same character. In our opinion, these two witnesses are only chance witnesses reaching the spot at the crucial moment of occurrence, for which there is no corroboration. As such, it will not be free from risk to treat them as witnesses of truth.

19. The witnesses are medium to ascertain and investigate the truth. If this medium falters or there are genuine doubts about its veracity and credibility, the task of search for truth becomes highly difficult if not totally impossible. On a careful scrutiny of the evidence of these two witnesses, we are of the opinion that they are not the witnesses of truth. Their presence at the place from where they saw the incident, is highly doubtful. It is difficult to maintain the conviction of the appellants on the testimony of such doubtful witnesses.

20. Tainted evidence or dangerous evidence should not be relied upon for any purpose. It must be rejected for all purpose.

21. The next contention of Mr. Singhi is that that prosecution is guilty of not examining the independent witnesses whose presence has been admitted by PW 2 Salamsingh and PW 6 Rama.

22. There is considerable force in the contention. PW 2 Salamsingh stated that he saw the occurrence from the house of Dharma Bhil. Dharma Bhil, Kana and Chamna were present there with him. They had also seen the occurrence and yet three persons were not examined by the prosecution for reason best known to them. It may be mentoined that Dharma Bhil is Bhil by caste whereas Kana Chamna are Rajputs belonging to the caste of the deceased-victim and PW 2 Salamsingh. In these circumstances it was obligatory on the part of the prosecution to examine three witnesses in evidence. Had they been examined, they would have given the best available corroboration to the prosecution story and also to the testimony of PW 2 Salamsingh and PW 6 Rama. The occurrence is alleged to have taken place near the hotel of one Sultan Mohila. We except that many persons were there at the hotel when the incident is alleged to have taken place. But strangely enough none of those persons has been tendered in evidence by the prose.ution. There is no suggestion from the prosecution side that Dharma, Kana and Chamna who were with Salamsingh or the persons sitting at the hotel or standing near about were won over by the accused or were disinterested in giving evidence. In these circumstances the non-production of these material witnesses casts a serious reflection on the fairness of the trial. In Birsingh v. The State of Uttar Pradesh : 1978CriLJ177a it was observed that where the eye witnesses were proved to be interested in falsely implicating the accused and an independent witness was witheld without any explantion, adverse inference should be drawn against the prosecution. So also, in Sanwal v. State of Bihar : 1974CriLJ664 it was observed that in a murder trial, adverse inference would be drawn against the prosecution for not examining important witnesses. In Iswarsingh v. The State of Uttar Pradesh : 1976CriLJ1883 their Lordship observed:

It is well established that witnesses essential to the unfolding of the narrative on which the prosecution is based must be exa(sic)ed. Hence, where Some of the eye witnesses to the occurrence named in the FIR who are important witnesses for the untolding of the .prosecution case are kept back without giving any explanation, the non-examination of these witnesses acquired a special significance in view of the discrepancy between the FIR and the version of the occurrence given by the prosecution in Court. The Court has to take into account these circumstances in considerating the probabilities of the case.

23. We are quite conscious that merely on tbe ground of non-production of some eye witneses, the evidence of other eye witnesses should not be thrown away. But this is possible only when the testimony of chose eye witnesses who have been exmined is found reliable and dependable. If that is not the case, the failure on the part of the prosecution to examine the independent witnesses available to unfold the prosecution story is a material infirmity as the best evidence has not been placed before the Court.

24. As discussed above, Dharma Bhil, Kana and Chamna who were with PW 2 Salamsingh have not been examined by the prosecution and no explanation has been furnished for withholding them. So also, the hotel-keeper and other persons whose presence must be there and has been tacitly accepted by PW 6 Rama, have not teen examined. Their non-production in evidence is a major circumstance which cannot be lightly ignored. The inference arising from their non-production by the prosecution is that the occurrence had not taken place in the manner suggested.

25. It was next argued that the testimony of PW 3 Chhaganlal is purely hearsay and cannot oe read in evidence for any purpose. He deposed that accused Goma (acquitted by the court below) came to him in the morning of the day of incident and told him that he and his sons had killed Indersingh. He sought his a lvice as to what he should do in the matter. The witness is a total liar with no respect for truth. In his police statement Ex. D 5, portion marking A to B he deposed that Goma came to him and told that his sons Hansiya, Unia and Hatta had killed Indersingh. According to his statement Ex P 5, the testimony of Chhaganlal cannot be read in evidence because for the simple reason that what was told to him was by Goma. His testimony is of purely hearsay in nature. This witness introduced Goma as making the confession before him during trial with an oblique motive that the confession of an accused may be read in evidence against the fellow accused. But in Ex. D 5, this witness did net state that Goma made any confession before him. The confession of Goma has been falsely introduced during trial by this witness. It must be rejected from consideration.

26. The last contention raised by Mr. Singhi is that the court below crept into an error in raising an inference against the accused-appellants from the fact that blood was found on their clothes or Khunt or Lath recovered in consequence of their information. It was argued that no human blood was found on these articles and as such their being found merely stained with blood furnishes no incriminating material against the accused. The contention holds good. No report of the Serologist was produced in evidence by the prosecution to show that human blood was found on these articles. As such this piece of evidence affords no help to the prosecution.

27. To sum-up:

(1) The prosecution has utterly failed to prove the motive for the commission of the murder of Indersingh

(2) The testimony of PW 2 Salamsingh and PW 6 Rama is wholly unreliable. They are not the witnesses of truth and the conviction of the accused on the basis of what they testified cannot be maintained, and

(3) the prosecution is guilty of withholding the independent eye witnesses without any explanation. That casts serious doubt about the truthfulness of the whole prosecution story.

28. In these circumstances we are unable to maintain the conviction. We may repeat the often quoted principle of our criminal jurisprudence that an accused is presumed to be innocent and it lies on the prosecution to dislodge this presumption by adducing cogent, reliable and acceptable evidence. The onus to prove guilt at no stage shifts to the accused. Even in a case where the defence of the accused does not appear credible or is pulpably false, that burden does not become any the less.

29. In the result, we allow the appeal of accused (l) Unia (2) Hansiya and (3) Badiya. Their conviction and sentence under Section 302 and 302/34, IPC are set aside and they are acquitted thereof. They are in jail and shall be immediately set forth at liberty if not wanted in any other case.


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