S.P Kurdukar, J.— The High Court as well as the Sessions Court by their concurrent judgments held the appellants in all these criminal appeals guilty of committing the murder of one Deosharan @ Devsaran s/o Bigen and convicted them under Sections 302 and 201 IPC and sentenced each one of them to suffer imprisonment for life on the first count and two years' RI on the second count. Substantive sentences were ordered to run concurrently. These appeals have been filed by the appellants (convicts) through jail.
2. Deosharan (since deceased) hailed from Village Chirmari and at the relevant time he was staying at the house of Rambilas @ Vilas (A-5). Deosharan was said to be a notorious person and was addicted to liquor and was a womaniser too. He was said to have married four times and had even eloped with the wife of A-5 for a short period and after returning started living with A-5 only. It was alleged that there was a dispute between Deosharan and his father Bigen (PW 1) on one hand and Samarsai (Bigen's nephew) on the other. The occurrence took place on 30-5-1985 and on that day “Ganga Dashara”, a festival, was being celebrated in the said area. The occurrence in question took place late in the evening at about 10.30 p.m On this festive occasion villagers drink and dance during the night. It is alleged by the prosecution that at about 10.30 p.m some of the villagers heard the noise of sticks during marpeet and because of this noise the prosecution witnesses, namely, Devsai (PW 2), Sitaram (PW 3), Sukhnath (PW 5), Suddhooram (PW 6) and one Ramdin woke up from their sleep and went in the direction of Pondi Bathan Dad from where the noise of marpeet was coming. These eyewitnesses claimed to have seen the actual assault caused by the appellants on Deosharan. All these eyewitnesses requested the appellants to spare Deosharan but, however, the appellants prohibited them from going near the place where marpeet was going on and threatened them saying that if they felt their lives were precious, they should go away from the said place. These eyewitnesses further claimed that the appellants told them that they had finished Deosharan. The eyewitnesses who were unarmed returned to the village and broke the news and also went to the house of the Sarpanch to apprise him about the incident. The witnesses and some other villagers thereafter went to the place of the occurrence but they did not see the appellants as well as the dead body of Deosharan. After returning to the village next morning these eyewitnesses contacted Bigen (PW 1) and informed him about the incident. The FIR was accordingly lodged. During interrogation, Bahadur (A-2) made a statement which led to the discovery of the dead body which had been thrown into the tank. The dead body of Deosharan was fished out and after holding the autopsy on the dead body it was sent for post-mortem examination. The other accused persons were also arrested during investigation. After completing the necessary investigation a charge-sheet came to be filed against the appellants under Sections 302 and 201 IPC.
3. The appellants denied to have committed any offence and pleaded that they were innocent and had been falsely implicated in the present crime.
4. At the trial the prosecution examined as many as 13 witnesses of whom PW 2, PW 3, PW 5 and PW 6 claimed to be the eyewitnesses. The memorandum of disclosure statements of various accused persons prepared under Section 27 of the Evidence Act during investigation and the recoveries of various incriminating articles made pursuant thereto were also relied upon to bring home the guilt of the accused.
5. We have very carefully gone through the judgments of both the courts below and with respect we find that notwithstanding the concurrent judgments thereof we are unable to sustain the convictions of the appellants on any count. It is well settled that this Court would be slow to interfere with the findings of facts recorded by the courts below which are based on appreciation of evidence but we are of the considered view that the Sessions Court as well as the High Court have mechanically read the evidence of the eyewitnesses and totally ignored the well-known principle of appreciation of evidence. We have very carefully gone through the evidence of PW 2, PW 3, PW 5 and PW 6 who claimed to be the eyewitnesses. If we compare the evidence of these eyewitnesses it is immediately noticed that their evidence is just like a parrot telling what is taught. Even the omissions, contradictions and improvements are identical. The claim of these eyewitnesses is totally unbelievable when they testified that they had gone to the place of occurrence. The distance between their houses and the place of the occurrence is said to be one furlong. It was night time and the only light available was that of the moon. A festival “Ganga Dashara” was being celebrated in the village and these witnesses claimed that they heard the noise of marpeet by sticks and, therefore, they woke up. During the cross-examination they tried to explain by saying that they were not fully asleep and, therefore, could hear the noise of marpeet. They claimed that they had not consumed any liquor. Their further claim was that when they went to the place of the occurrence they all had earlier met at a place which was in front of the house of Sukhnath (PW 5). The claim of Sukhnath was that he overheard the talk between other eyewitnesses and, therefore, he came out and went along with them to the place of the occurrence. The claim made by these eyewitnesses in their examination-in-chief was that they had actually seen the assault on Deosharan by the appellants but during cross-examination they admitted that they did not see the actual assault as they were prevented from going to the place of the occurrence by the appellants. The talk between the appellants and these four eyewitnesses was again absolutely identical without adding a word “less” or “more”. In addition to the above, the salient feature of their evidence is that after some time they again went to the place of the occurrence but they could not see the appellants as well as the dead body. They searched for the appellants during the whole night. This claim of these eyewitnesses is difficult to accept because according to them, they had already been threatened by saying that if they made any noise they would meet the same fate like Deosharan. The assertion of these witnesses that they had gone to the place of the occurrence during that night appeared to us a cock and bull story. Another circumstance that weighed with us is that despite such a ghastly attack on Deosharan, none of them ever thought of going to the father of Deosharan to inform him about the incident. They also did not go to the police station during the same night to lodge the first information report. Furthermore, the story of these eyewitnesses as regards the assault on Deosharan is also not corroborated from the medical evidence. Dr S.S Pankera (PW 4) had noticed three external injuries on the head and many small injuries on the whole chest, backside and both feet, knees and below the knees. Dr S.S Pankera further opined that the dead body was mutilated and there was a fracture on occipital portion and blood clot was present inside the skull. One has only to test this evidence on the touchstone of probability that when the five appellants were simultaneously attacking Deosharan with the sticks in their hands, of which the noise was heard from a distance of one furlong, there ought to have been many more injuries on the dead body of Deosharan. After going through the evidence of these four star witnesses who constituted the backbone of the prosecution story, we are of the considered view that in all probabilities it was a blind murder.
6. It is no doubt true that there was no motive for these eyewitnesses to implicate the appellants in the present crime. That by itself would not lend any foolproof assurance that their evidence is credible and trustworthy. It has also come on the record that because of the notorious character of Deosharan he had many enemies in and around the village and if that be so the probability of somebody else other than the appellants being the assailant cannot be ruled out. The courts below, in our opinion, had failed to read the evidence of these eyewitnesses in a proper perspective and had fallen into error in accepting their evidence as credible and truthful.
7. Coming to the other corroborative evidence, viz., recovery of certain incriminating articles at the instance of the appellants under Section 27 of the Evidence Act, assuming it to be true, the same cannot form the basis of conviction in the present case. In our considered view the Sessions Court as well as the High Court had committed an error while convicting the appellants under Sections 302 and 201 IPC and consequently both the judgments are required to be upset.
8. For the reasons recorded hereinabove, we allow Criminal Appeals Nos. 325-29 of 1996 filed by the appellants. The judgments and orders of conviction passed against the appellants by the courts below are quashed and set aside and the appellants are acquitted of all the charges. The appellants who are in jail be released forthwith if not required in any other case.