Ramu and Others Vs. The State of Madhya Pradesh through Police Station Dehat District Shivpuri - Court Judgment

SooperKanoon Citationsooperkanoon.com/1182588
CourtMadhya Pradesh High Court
Decided OnMay-01-2014
Case NumberCriminal Appeal No. 593 of 1999
JudgeS.K. Gangele &Amp; B.D. Rathi
AppellantRamu and Others
RespondentThe State of Madhya Pradesh through Police Station Dehat District Shivpuri
Excerpt:
b.d. rathi, j. 1. this appeal, under section 374 of the code of criminal procedure, has been directed against the judgment of conviction and order of sentence dated 04.11.1999 passed by special and sessions judge, shivpuri (m.p.) in special sessions trial no.122/97 whereby all the accused/appellants have been convicted under section 148 of ipc and sentenced to undergo rigorous imprisonment for six months. they have further been convicted under section 302/149 of ipc and under section 3(2)(v) of the scheduled castes and scheduled tribes (prevention of atrocities) act, 1989 and sentenced to undergo imprisonment for life each with a fine of rs.2,000/- each with default stipulation. 2. at the outset, it may be mentioned here that since appellants no.2 and 8, namely sardar singh and sarwanlal rawat, have died and their names have been deleted vide orders dated 24/06/2009 and 21/12/2012, hence, this appeal stands dismissed against them as abated. now, the appeal will survive only against remainders. 3. prosecution story, in nutshell, is that in the intervening night of 7/8.11.1997 at about 03:00 am when complainant kailash (pw-1) alongwith his uncle jhiguria (pw-2) were at their well/field and irrigating their field from pump and the deceased nakke was sleeping nearby well on the platform (chabutara) at that time all the accused persons having deadly weapons like axe, lathis, luhangi, farsa came on the well, encircled and with intention to commit murder of nakke attacked on him. accused/appellants hurled abuses to him by caste. thereafter, jagdish (accused/appellant no.7) strangulated the deceased by his own scarf (safi). then, sardar singh (accused/appellant no.2) inflicted axe blow on the right leg of the deceased and thereafter all belaboured lathi, luhangi and farsa blows on the person of the deceased nakke and thereby committed his murder. thereafter, ramu (accused/appellant no.1) and jagdish (accused/appellant no.7) threw the dead body of the deceased in the well. when kailash (pw-1) alongwith jhinguria (pw-2) screamed, jagdish jatav, ram singh jatav and other persons of the village came there and on seeing them, accused persons fled away from the spot. kailash (pw-1) lodged fir (ex.p-1) at police station. thereafter, dead body was taken out from the well and marg was registered by investigating officer pradeep sharma (pw-6). panchnama of dead body and site map were also prepared. the dead body was sent for autopsy which was conducted by dr. d.k. sirothiya (pw-5) who found four injuries on the person of the deceased including two incised wounds one on the eyebrow and other on the right leg and one contusion on the right wrist. all these three injuries were found simple in nature and injury no.4 which was on the neck was the ligature mark caused by scarf which was tied over the neck, was found to be fatal. after investigation and recording the statements under section 161 of the code of criminal procedure, police submitted charge-sheet against nine accused persons in the court. the trial court framed charges which were denied by the accused/appellants. the accused pleaded complete innocence and preferred trial. 4. to bring home the charges, prosecution has examined as many as seven witnesses, namely, kailash (pw-1), jhinguriya (pw-2), dropabai (pw-3), jagdish (pw-4), dr. d.k. sirothiya (pw-5), pradeep sharma (pw-6) and b.s. tomar (pw-7). similarly, two witnesses were examined by the accused in defence, namely, lakhu (dw-1) and maharaj singh (dw-2), 5. after taking into consideration the evidence adduced by the parties, impugned judgment of conviction and order of sentence was passed by the learned trial court. hence, this appeal. 6. it is argued by shri shailendra singh, learned counsel appearing on behalf of the appellants that the learned trial court has not appreciated the evidence available on record properly. it is contended by the learned counsel for the appellants that in this case there are only two eyewitnesses, namely, kailash (pw-1) who is the son of the deceased and jhingurya (pw-2) who is the brother of the deceased. but the statements of both these witnesses are not reliable because their evidence is full of contradictions, omissions and exaggerations. apart that, prosecution has utterly failed to prove the compliance of mandatory provision contemplated under section 157(1) of the code of criminal procedure. admittedly, there were inimical relationship between the appellants and the witnesses. further, it is submitted that the corresponding injuries were also not found present by the doctor over the body of the deceased during conducting autopsy. thus, on these grounds, learned counsel appearing for the appellants submitted that the present appeal be allowed and the appellants be acquitted of the charges levelled against them. 7. per contra, shri dixit, learned public prosecutor appearing on behalf of the state vehemently opposed the prayer made by the learned counsel for the appellants and submitted that the impugned judgment of conviction and order of sentence has been passed on proper appreciation of evidence on record and needs no interference. 8. having heard the arguments, put forth by the learned counsel for the rival parties, perused the impugned judgment, evidence and entire record, we are of the considered view that the impugned judgment of conviction and order of sentence deserves to be set aside for the discussion made in the subsequent paras. 9. it is admitted by kailash (pw-1) in para 10 of his statement that there is an old dispute in regard to agricultural land with the appellants and also there was inimical relationship between them. in para 12, it was also admitted by him that one criminal case for the offence punishable under section 307 of ipc was registered against him and was pending. similarly, jhinguria (pw-2) has also admitted in para 12 that a criminal case is pending against them, registered on the basis of fir lodged by appellant ramu. 10. from these statements, it is clear that there was inimical relationship between the witnesses and the appellants because of the dispute pertaining to agricultural land. one criminal case was also registered against both these witnesses who are the son and brother of the deceased. in this regard, the judgment of hon ble apex court rendered by it in the case of badam singh vs. state of m.p. reported in air 2004 sc 26 is worth mentioning. accordingly, the evidence of such eyewitnesses should be scrutinized very carefully. 11. kailash (pw-1) deposed in para 1 of his statement that incident occurred at about 3 am when he and jhinguria were doing irrigation. his father nakke was sleeping on the platform and he was 30-40 steps ahead from him. at that time, sardar, jagdish, sarwan, pehalwan, khuman, rangi, vijay singh, sitaram and ramu rawat, in all total 9 accused persons, came over there. his father was surrounded and beaten by means of using axe, farsa, luhangi and lathi. then, the neck of his father was strangulated by means of a scarf (safi) by jagdish. 12. similar statement has been given by jhinguriya (pw-2). but in the fir ex.p-1, it has been mentioned that first of all, deceased nakke was strangulated by jagdish and thereafter he was beaten by arms as mentioned above. in the statement recorded under section 161 of cr.p.c., ex.d-1, it was stated by kailash that his father nakke was first strangulated and thereafter beaten by using weapons by the accused persons and similar statement was given by jhinguriya in ex.d-2. on perusal of evidence of kailash (pw-1) and jhiguriya (pw-2), fir ex.p-1 and their statements recorded under section 161 of cr.p.c. it appears that there are material contradictions and omissions. these contradictions are also material because as per the post mortem report injuries found over the body of the deceased were antemortem meaning thereby deceased nakke was beaten prior to his death and specially this fact of post mortem report was deposed by kailash (pw-1) and jhinguriya (pw-2) in the evidence as mentioned above. but in the fir and in the police statement recorded under section 161 of the code of criminal procedure it was stated by them that first deceased nakke was strangulated and when he had died thereafter he was beaten. in that event, injuries could not have been found ante-mortem. 13. it is submitted by shri dixit, learned public prosecutor appearing for the state, that these contradictions cannot be taken into consideration as material because in the fir and the police statements it was mentioned that when accused party came on the spot, all of a sudden attack was made on nakke, meaning thereby injuries were caused to him and which were found ante-mortem. 14. we are not inclined to accept the arguments put forth by shri dixit, learned public prosecutor, because admittedly there were nine accused persons armed with deadly weapons like axe, farsa, luhangi and lathi, therefore, if deceased nakke was beaten by all the accused persons by using their respective arms, at least nine injuries ought to have been found over the body of the deceased but dr. d.k. sirothia (pw-5) found only four injuries. out of them one was on the neck which pertained to strangulation and in the remaining three injuries two were incised and one was contusion. it is very unnatural and impossible that when one person is beaten by nine persons by using deadly weapons like axe, farsa, luhangi and lathi but receives on three injuries inflicted by weapons. therefore, the contradiction as pointed out above is not only material but also pivotal. one more important aspect in this case is that the corresponding injuries were not found present on the corpus of the deceased. therefore, in the absence of corresponding injuries, the evidence of both these witnesses is also not reliable. 15. in fir ex.p-1 it was mentioned that the incident occurred at about 3 am. dr. d.k. sirothiya (pw-5) deposed in para 3 of his evidence that during conducting autopsy, internal examination, it was found by him that there was undigested food in the stomach of the deceased. in para 6, it is deposed by him that when deceased had taken food 4-5 hours prior to his death in that event undigested food will be found in stomach, meaning thereby if as per the prosecution story deceased nakke had died at about 3 am on the spot just after the incident then food must have been taken at about 9 pm. but kailash (pw-1) deposed in paragraph 6 of his evidence that we had taken food in the evening. therefore, in such premises, it is also doubtful whether the incident had occurred at about 3 am or not or whether it was occurred in the midnight at about 0000 hours. therefore, the presence of these witnesses on the spot is doubtful or in any way it is doubtful that the incident was seen by these witnesses. therefore, it cannot be safely held that deceased nakee was assaulted and thereafter was killed by the appellants. 16. kailash (pw-1) in para 14 stated that an incised wound was caused by accused khuman by means of farsa on the neck of deceased nakke but this corresponding injury was also not found present on the body of the deceased nakke. 17. in such types of cases when the presence of the witnesses on the spot is doubtful and time of incident as well as lodgment of fir is doubtful then mandatory provisions contemplated under section 157(1) cr.p.c. have to be complied with by the prosecution. otherwise it itself creates a very big doubt on the prosecution case. in this case, it was not proved by the prosecution that copy of fir was immediately sent to the concerning magistrate. in this regard, evidence of pradeep sharma (pw-6), asi, is important. it was deposed by him in para 2 of his evidence that he cannot say whether the copy of the fir was received by the magistrate or not. he had not deputed any constable to send the said copy to the concerning magistrate. he has not produced concerning dispatch book by which copy of fir is usually sent to the concerning magistrate. similarly, b.s. tomar (pw-7), investigating officer, has also deposed in para 17 of his evidence that he had not got the confirmation whether the copy of the fir was sent to the concerning magistrate in compliance of section 157(1) of cr.p.c. or not. 18. apart that we also find that the prosecution has failed to prove that any blood stains matching with deceased blood, were found on the weapons alleged to have been seized from the possession of accused persons and therefore in this manner also the judgment conviction and order of sentence is not sustainable in the eyes of law. 19. in view of the foregoing discussions and evaluation of evidence available on record, we are of the considered view that the prosecution has failed to prove charges as levelled against the accused/appellants, in regard to committing murder of nakke who was admittedly belonged to a member of scheduled caste community, beyond reasonable doubt and therefore, it is held that the impugned judgment of conviction and order of sentence is liable to be set aside. 20. accordingly, appeal succeeds and is hereby allowed. the judgment of conviction and order of sentence impugned herein is hereby set aside. accused/appellants are acquitted of all the charges levelled against them. if any amount of fine has been deposited pursuant to the judgment impugned be refunded to the appellants. their bail bonds stand discharged. a copy of this judgment be sent to the trial court for compliance.
Judgment:

B.D. Rathi, J.

1. This appeal, under Section 374 of the Code of Criminal Procedure, has been directed against the judgment of conviction and order of sentence dated 04.11.1999 passed by Special and Sessions Judge, Shivpuri (M.P.) in Special Sessions Trial No.122/97 whereby all the accused/appellants have been convicted under Section 148 of IPC and sentenced to undergo rigorous imprisonment for six months. They have further been convicted under Section 302/149 of IPC and under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to undergo imprisonment for life each with a fine of Rs.2,000/- each with default stipulation.

2. At the outset, it may be mentioned here that since appellants No.2 and 8, namely Sardar Singh and Sarwanlal Rawat, have died and their names have been deleted vide orders dated 24/06/2009 and 21/12/2012, hence, this appeal stands dismissed against them as abated. Now, the appeal will survive only against remainders.

3. Prosecution story, in nutshell, is that in the intervening night of 7/8.11.1997 at about 03:00 am when complainant Kailash (PW-1) alongwith his uncle Jhiguria (PW-2) were at their well/field and irrigating their field from pump and the deceased Nakke was sleeping nearby well on the platform (Chabutara) at that time all the accused persons having deadly weapons like axe, lathis, luhangi, farsa came on the well, encircled and with intention to commit murder of Nakke attacked on him. Accused/appellants hurled abuses to him by caste. Thereafter, Jagdish (accused/appellant no.7) strangulated the deceased by his own scarf (safi). Then, Sardar Singh (accused/appellant No.2) inflicted axe blow on the right leg of the deceased and thereafter all belaboured lathi, luhangi and farsa blows on the person of the deceased Nakke and thereby committed his murder. Thereafter, Ramu (accused/appellant No.1) and Jagdish (accused/appellant No.7) threw the dead body of the deceased in the well. When Kailash (PW-1) alongwith Jhinguria (PW-2) screamed, Jagdish Jatav, Ram Singh Jatav and other persons of the village came there and on seeing them, accused persons fled away from the spot. Kailash (PW-1) lodged FIR (Ex.P-1) at Police Station. Thereafter, dead body was taken out from the well and Marg was registered by Investigating Officer Pradeep Sharma (PW-6). Panchnama of dead body and site map were also prepared. The dead body was sent for autopsy which was conducted by Dr. D.K. Sirothiya (PW-5) who found four injuries on the person of the deceased including two incised wounds one on the eyebrow and other on the right leg and one contusion on the right wrist. All these three injuries were found simple in nature and injury no.4 which was on the neck was the ligature mark caused by scarf which was tied over the neck, was found to be fatal. After investigation and recording the statements under Section 161 of the Code of Criminal Procedure, Police submitted charge-sheet against nine accused persons in the court. The trial court framed charges which were denied by the accused/appellants. The accused pleaded complete innocence and preferred trial.

4. To bring home the charges, prosecution has examined as many as seven witnesses, namely, Kailash (PW-1), Jhinguriya (PW-2), Dropabai (PW-3), Jagdish (PW-4), Dr. D.K. Sirothiya (PW-5), Pradeep Sharma (PW-6) and B.S. Tomar (PW-7). Similarly, two witnesses were examined by the accused in defence, namely, Lakhu (DW-1) and Maharaj Singh (DW-2),

5. After taking into consideration the evidence adduced by the parties, impugned judgment of conviction and order of sentence was passed by the learned trial court. Hence, this appeal.

6. It is argued by Shri Shailendra Singh, learned counsel appearing on behalf of the appellants that the learned trial court has not appreciated the evidence available on record properly. It is contended by the learned counsel for the appellants that in this case there are only two eyewitnesses, namely, Kailash (PW-1) who is the son of the deceased and Jhingurya (PW-2) who is the brother of the deceased. But the statements of both these witnesses are not reliable because their evidence is full of contradictions, omissions and exaggerations. Apart that, prosecution has utterly failed to prove the compliance of mandatory provision contemplated under Section 157(1) of the Code of Criminal Procedure. Admittedly, there were inimical relationship between the appellants and the witnesses. Further, it is submitted that the corresponding injuries were also not found present by the doctor over the body of the deceased during conducting autopsy. Thus, on these grounds, learned counsel appearing for the appellants submitted that the present appeal be allowed and the appellants be acquitted of the charges levelled against them.

7. Per contra, Shri Dixit, learned Public Prosecutor appearing on behalf of the State vehemently opposed the prayer made by the learned counsel for the appellants and submitted that the impugned judgment of conviction and order of sentence has been passed on proper appreciation of evidence on record and needs no interference.

8. Having heard the arguments, put forth by the learned counsel for the rival parties, perused the impugned judgment, evidence and entire record, we are of the considered view that the impugned judgment of conviction and order of sentence deserves to be set aside for the discussion made in the subsequent paras.

9. It is admitted by Kailash (PW-1) in para 10 of his statement that there is an old dispute in regard to agricultural land with the appellants and also there was inimical relationship between them. In para 12, it was also admitted by him that one criminal case for the offence punishable under Section 307 of IPC was registered against him and was pending. Similarly, Jhinguria (PW-2) has also admitted in para 12 that a criminal case is pending against them, registered on the basis of FIR lodged by appellant Ramu.

10. From these statements, it is clear that there was inimical relationship between the witnesses and the appellants because of the dispute pertaining to agricultural land. One criminal case was also registered against both these witnesses who are the son and brother of the deceased. In this regard, the judgment of Hon ble Apex Court rendered by it in the case of Badam Singh Vs. State of M.P. reported in AIR 2004 SC 26 is worth mentioning. Accordingly, the evidence of such eyewitnesses should be scrutinized very carefully.

11. Kailash (PW-1) deposed in para 1 of his statement that incident occurred at about 3 am when he and Jhinguria were doing irrigation. His father Nakke was sleeping on the platform and he was 30-40 steps ahead from him. At that time, Sardar, Jagdish, Sarwan, Pehalwan, Khuman, Rangi, Vijay Singh, Sitaram and Ramu Rawat, in all total 9 accused persons, came over there. His father was surrounded and beaten by means of using axe, farsa, luhangi and lathi. Then, the neck of his father was strangulated by means of a scarf (safi) by Jagdish.

12. Similar statement has been given by Jhinguriya (PW-2). But in the FIR Ex.P-1, it has been mentioned that first of all, deceased Nakke was strangulated by Jagdish and thereafter he was beaten by arms as mentioned above. In the statement recorded under Section 161 of Cr.P.C., Ex.D-1, it was stated by Kailash that his father Nakke was first strangulated and thereafter beaten by using weapons by the accused persons and similar statement was given by Jhinguriya in Ex.D-2. On perusal of evidence of Kailash (PW-1) and Jhiguriya (PW-2), FIR Ex.P-1 and their statements recorded under Section 161 of Cr.P.C. it appears that there are material contradictions and omissions. These contradictions are also material because as per the post mortem report injuries found over the body of the deceased were antemortem meaning thereby deceased Nakke was beaten prior to his death and specially this fact of post mortem report was deposed by Kailash (PW-1) and Jhinguriya (PW-2) in the evidence as mentioned above. But in the FIR and in the police statement recorded under Section 161 of the Code of Criminal Procedure it was stated by them that first deceased Nakke was strangulated and when he had died thereafter he was beaten. In that event, injuries could not have been found ante-mortem.

13. It is submitted by Shri Dixit, learned Public Prosecutor appearing for the State, that these contradictions cannot be taken into consideration as material because in the FIR and the police statements it was mentioned that when accused party came on the spot, all of a sudden attack was made on Nakke, meaning thereby injuries were caused to him and which were found ante-mortem.

14. We are not inclined to accept the arguments put forth by Shri Dixit, learned Public Prosecutor, because admittedly there were nine accused persons armed with deadly weapons like axe, farsa, luhangi and lathi, therefore, if deceased Nakke was beaten by all the accused persons by using their respective arms, at least nine injuries ought to have been found over the body of the deceased but Dr. D.K. Sirothia (PW-5) found only four injuries. Out of them one was on the neck which pertained to strangulation and in the remaining three injuries two were incised and one was contusion. It is very unnatural and impossible that when one person is beaten by nine persons by using deadly weapons like axe, farsa, luhangi and lathi but receives on three injuries inflicted by weapons. Therefore, the contradiction as pointed out above is not only material but also pivotal.

One more important aspect in this case is that the corresponding injuries were not found present on the corpus of the deceased. Therefore, in the absence of corresponding injuries, the evidence of both these witnesses is also not reliable.

15. In FIR Ex.P-1 it was mentioned that the incident occurred at about 3 am. Dr. D.K. Sirothiya (PW-5) deposed in para 3 of his evidence that during conducting autopsy, internal examination, it was found by him that there was undigested food in the stomach of the deceased. In para 6, it is deposed by him that when deceased had taken food 4-5 hours prior to his death in that event undigested food will be found in stomach, meaning thereby if as per the prosecution story deceased Nakke had died at about 3 am on the spot just after the incident then food must have been taken at about 9 pm. But Kailash (PW-1) deposed in paragraph 6 of his evidence that we had taken food in the evening. Therefore, in such premises, it is also doubtful whether the incident had occurred at about 3 am or not or whether it was occurred in the midnight at about 0000 hours. Therefore, the presence of these witnesses on the spot is doubtful or in any way it is doubtful that the incident was seen by these witnesses. Therefore, it cannot be safely held that deceased Nakee was assaulted and thereafter was killed by the appellants.

16. Kailash (PW-1) in para 14 stated that an incised wound was caused by accused Khuman by means of farsa on the neck of deceased Nakke but this corresponding injury was also not found present on the body of the deceased Nakke.

17. In such types of cases when the presence of the witnesses on the spot is doubtful and time of incident as well as lodgment of FIR is doubtful then mandatory provisions contemplated under Section 157(1) Cr.P.C. have to be complied with by the prosecution. Otherwise it itself creates a very big doubt on the prosecution case. In this case, it was not proved by the prosecution that copy of FIR was immediately sent to the concerning Magistrate. In this regard, evidence of Pradeep Sharma (PW-6), ASI, is important. It was deposed by him in para 2 of his evidence that he cannot say whether the copy of the FIR was received by the Magistrate or not. He had not deputed any constable to send the said copy to the concerning Magistrate. He has not produced concerning dispatch book by which copy of FIR is usually sent to the concerning Magistrate. Similarly, B.S. Tomar (PW-7), investigating officer, has also deposed in para 17 of his evidence that he had not got the confirmation whether the copy of the FIR was sent to the concerning Magistrate in compliance of Section 157(1) of Cr.P.C. or not.

18. Apart that we also find that the prosecution has failed to prove that any blood stains matching with deceased blood, were found on the weapons alleged to have been seized from the possession of accused persons and therefore in this manner also the judgment conviction and order of sentence is not sustainable in the eyes of law.

19. In view of the foregoing discussions and evaluation of evidence available on record, we are of the considered view that the prosecution has failed to prove charges as levelled against the accused/appellants, in regard to committing murder of Nakke who was admittedly belonged to a member of Scheduled Caste community, beyond reasonable doubt and therefore, it is held that the impugned judgment of conviction and order of sentence is liable to be set aside.

20. Accordingly, appeal succeeds and is hereby allowed. The judgment of conviction and order of sentence impugned herein is hereby set aside. Accused/appellants are acquitted of all the charges levelled against them. If any amount of fine has been deposited pursuant to the judgment impugned be refunded to the appellants. Their bail bonds stand discharged. A copy of this judgment be sent to the trial court for compliance.