Full Judgment
HIGH COURT OF MADHYA PRADESH AT JABALPUR Criminal Appeal No.624/1994 Danny alias Arvind Kumar…………………………………………………..………..Appellant Versus The State of Madhya Pradesh…………………………………………………...Respondent Criminal Appeal No.540/1994 Tillu alias Gyan Chand…………………………………………………..……………..Appellant Versus The State of Madhya Pradesh…………………………………………………...Respondent For the appellants : Shri S. C. Datt, Senior Advocate, with Shri Siddharth Datt and Shri Ajay Mishra, Advocates. For the respondent : Shri Yogesh Dhande, Government Advocate. ****** Present: HONOURABLE SHRI JUSTICE AJIT SINGH HONOURABLE SHRI JUSTICE B. D. RATHI ****** JUDGMENT
(19.9.2013) The following judgment of the Court was delivered by : Ajit Singh, J.
By this common judgment, Criminal Appeal No.624/1994 (Danny alias Arvind Kumar v. State of Madhya Pradesh) and Criminal Appeal No.540/1994 (Tillu alias Gyan Chand v. State of Madhya Pradesh) are being decided because they arise out of the same judgment dated 30.4.1994 passed in Sessions Trial No.43/1993 by the Third Additional Sessions Judge, Sagar.
2. Appellant Danny has been convicted under section 302 of the Indian Penal Code whereas appellant Tillu has been convicted under section 302/34 of the Indian Penal Code. The sentences imposed to them are, however, 2 same and are imprisonment for life and a fine of Rs.500/- or, in default of payment of fine, to undergo rigorous imprisonment for six months.
2. Victim of the incident was Gurvinder Singh, aged about 35 years.
3. According to the prosecution case, Gurvinder Singh used to grow and sell vegetables in the market and Damodar (P.W.1) assisted him in the business. On 6.12.1992 at about 7:00 p.m. when it had become little dark, Gurvinder Singh along with his son Mannu (P.W.3) and Damodar was selling vegetables in the market by using the light of candle. At that time Tillu, Danny and Rishi also came to the market. Tillu then without any apparent reason kicked the heap of tomato and candle kept in the shop of Gurvinder. Some of the tomatoes in the result got smashed and became useless. Gurvinder objected to this act but Tillu got infuriated and started abusing him. In retaliation, Gurvinder also hurled abuses at Tillu. Seeing this, Danny took out a knife and suddenly stabbed Gurvinder on his chest with an intention to commit his murder. Rishi Pandey also took out his knife and stabbed twice on the left side of the chest of Gurvinder. Damodar shouted for help due to which the shop-keepers Tulsiram (P.W.2), Shyamlal (P.W.4), Chotelal, Bihari and others arrived at the spot. But Tillu, Danny and Rishi seeing them ran away. Gurvinder became unconscious because of the excessive bleeding from the injuries caused to him. Damodar carried Gurvinder in an auto-rickshaw to the police chowki where he lodged the first information report, Ex.P1, and narrated the entire incident as stated above.
4. From the police chowki, Gurvinder was taken to hospital but he died on way. During the post-mortem examination, the doctors found three stab wounds on the left side of the chest of Gurvinder. The doctors opined that the cause of death of Gurvinder was due to serious injury to heart. After the death of Gurvinder, the police registered an offence under section 302 read with section 34 of the Indian Penal Code against Tillu, Danny and Rishi. The police also recovered the weapons used in the commission of crime from them.
5. The trial court, mainly relying upon the evidence of Damodar and Mannu, convicted Danny and Tillu and sentenced them as aforesaid. The trial court also relied upon the evidence of Bheem Sen (P.W.6), Investigating 3 Officer D. S. Thakur (P.W.10) and the post-mortem examination report. The trial court, however, acquitted Rishi Pandey of the charge under section 302/34 of the Indian Penal Code.
6. The learned senior counsel for appellants argued that the trial court committed an illegality in relying upon the evidence of hostile witness Damodar and child witness Mannu to convict them. According to the learned senior counsel, the evidence of Damodar in the Court was totally different to what he stated in the first information report and, therefore, his evidence was untrustworthy. The learned senior counsel has also argued that on examining the evidence of Mannu carefully it becomes obvious that he was tutored and cannot be relied upon. The learned senior counsel has further argued that the seizure of weapons from the possession of appellants was also not established before the trial court. The learned Government Advocate, on the other hand, defended the legality of the conviction of appellants by the trial court.
7. On examining the evidence of Damodar we find that he has denied the very presence of Rishi at the scene of occurrence whereas in the first information report he had stated that Gurvinder was stabbed twice on the chest by Rishi. Not only this, no role of stabbing was assigned against Tillu by Damodar in the first information report but in the Court he says that Tillu had also stabbed Gurvinder. Interestingly, this witness in his examination-in-chief admits that he cannot say with certainty as to between Tillu and Danny who actually stabbed but the crowd was shouting that stabbing was done by Danny. Damodar was, therefore, declared hostile by the prosecution. In the cross-examination, Damodar admitted that he had made the first information report because he was beaten up by the police at the police chowki. Mannu too has confirmed in his evidence that Damodar was not disclosing the names of Tillu, Danny and Rishi to the police and it was Tulsiram who had disclosed their names. Damodar also says that the accused persons present in the Court were known to him only by face and not by their names. He finally admitted that he did not see the incident at all. This witness, who has not only substantially changed his version regarding the incident in the Court but has also admitted to have made the first information report due to his beating up by the police cannot be treated as trustworthy and relied upon. 4 8. Mannu has been examined as an eyewitness by the prosecution. He is son of Gurvinder and was aged about 12 years on the date of incident. According to his evidence earlier to the incident he was not knowing the accused persons. He has also admitted in para 6 of his cross-examination that in the police station Danny and Tillu were present and the police had told him that they were the persons who had killed his father. Mannu also says that Tulsiram had disclosed the names of Tillu, Danny and Rishi to police as the assailants but Tulsiram in his evidence has denied that accused persons present in the Court committed the murder of Gurvinder. Thus, it is clear that Tillu, Danny and Rishi were strangers to Mannu and, therefore, the police instead of showing them to him in the police station as assailants in all fairness ought to have held a test identification parade. Also according to the evidence of Mannu, Tillu, Danny and Rishi had stabbed Gurvinder but, as already mentioned above, Rishi has been acquitted by the trial court and no role of stabbing was attributed against Tillu in the first information report. These discrepancies in the evidence of Mannu creates a serious doubt regarding its reliability. We are, therefore, not inclined to accept his evidence.
9. Tulsiram (P.W.2) and Shyamlal (P.W.4) were mentioned as witnesses in the first information report but both of them turned hostile and did not support the prosecution case.
10. As regards seizure of weapons used in the commission of crime, Damodar has denied that any weapon was seized from Danny or Tillu. Similarly, Bheem Sen (P.W.5) has testified that in his presence nothing was seized from Danny and he cannot say from which accused what article was seized. According to him, only one knife was recovered from Tillu but, as seen above, in the first information report there was no allegation that Tillu was either carrying knife or had used it in the incident.
11. For these reasons, we are of the considered view that the conviction and sentences of Danny alias Arvind Kumar and Tillu alias Gyan Chand cannot be sustained and they are accordingly set aside. In the result, Danny and Tillu are acquitted of the charge under sections 302 and 302/34 of the Indian Penal Code. We find it pertinent to mention that as per report dated 19.9.2013 of the Deputy Superintendent, Central Jail, Sagar, Danny has remained in jail for 5 more than 10 years and is presently on bail. And Tillu is in jail since last more than 14 years. Danny, therefore, need not surrender and Tillu be immediately released if not wanted in any other case.
12. The appeals are allowed. (AJIT SINGH) (B. D. RATHI) JUDGE JUDGE ps