Rajkumar vs The State Of Madhya Pradesh
2021 Latest Caselaw 1582 MP

                                           1                          CrA.No.2390/2010



HIGH COURT OF MADHYA PRADESH : JABALPUR
                       Criminal Appeal No.2390/2010

                                     Rajkumar

                                         vs.

                            State of Madhya Pradesh
***************************************************************************************

Ms. Ghuncha Rasool, learend counsel for the appellant.
Shri J.S.Hora, learned Panel Lawyer for the State.
***************************************************************************************
CORAM :
Hon'ble Shri Justice Prakash Shrivastava.
Hon'ble Shri Justice Virender Singh.
***************************************************************************************

Whether approved for reporting: Yes/No
Law laid down:
Significant paragraphs:
***************************************************************************************


                                JUDGMENT

27.04.2021 Per : Virender Singh, J.

The present appeal is against the judgment and order dated 03.11.2010 delivered by Third Additional Sessions Judge (Fast Track Court), Narsinghpur in Sessions Trial No.80/2009, whereby, the appellant has been convicted and sentenced as under :

 Conviction                                    Sentence
     Section         Act             Imprisonment             Default stipulation
302              IPC           R.I for life and fine of R.I for three months
                               Rs.1000/-
25(1 B) (a)      Arms Act R.I. for one year and R.I. for three
                               fine of Rs.1000/-             months
27               Arms Act R.I for two years and R.I. for six months





                          fine of Rs.2000/-

2- The prosecution case, in brief, is that on 02.12.2008 at about 7:30 am, Dashrath @ Dasru was going to his fields. When he reached near a betel (Pan) shop situated on the back side of the house of Pannalal, appellant Rajkumar, Son of Jagdish having country made pistol (katta) alongwith co-accused Rajkumar, Son of Narayan and Suresh, Son of Santosh having sticks in their hands confronted him. Appellant abused him stating that he used to lodge false reports against many people, so, to end this problem he will kill him and fired a gun shot, which hit his chest. He (Dashrath) fell down on the ground. Then Suresh and Rajkumar S/o Narayan beat him with sticks on his head. His brother Tarapath and Devendra and Inder rushed to the spot. Seeing them, all the accused persons fled away. Tarapath and Inder took Dasrath to the police staton, Gotegaon, where he lodged FIR No.427/2008 (Ex.P/34). The police sent him for medical examination with requisition Ex.P/25, but he died on the way.

3- Doctor Ashwani K Sharma PW-17 intimated his death to the police vide Ex.P/27. The police registered Merg No.75/2008 (Ex.P/23), called the witnesses vide notice Ex.P/5, prepared memo of corpse Ex.P/6 and requested the Doctor for post-mortem (Ex.P/26).

4- Doctor Sharma PW-17 conducted the post mortem and submitted report Ex.P/25. He observed 55 entry wounds of 3x3 mm size on the chest and shoulder of the deceased and 2 lacerated wounds on the occipital. Three pellets had pierced both the ventricles and had caused entry wounds of 3x3 mm. 4th rib was fractured. Brain matter was visible. Skull injuries were post mortem in nature.

5- The police registered the case and started investigation, visited the

spot on the same day, prepared Crime Details Report (Spot map Ex.P/4), collected blood stained and plain soil from the spot vide seizure memo Ex.P/33, seized pellets and clothes of the deceased received from the hospital vide seizure memo Ex.P/19 and sent them for chemical examination to FSL Sagar, who submitted report Ex.P/32.

6- The police arrested the accused persons, interrogated them and recovered wooden sticks one each from co-accused Suresh and Rajkumar S/o Narayan and a country made pistol from the appellant (Ex.P/11-16 & P/20-22). On the request of the police, Reserve Inspector, Narsinghpur inspected the pistol and found it in working condition. The police also got prepared spot map and panchnama from the Patwari (Ex.P/17&18) and obtained sanction from the District Magistrate to prosecute the appellant under the Arms Act,1959.

7- After completing the investigation, the police filed the charge- sheet against the appellant and co-accused Rajkumar @ Tau S/o Narayan Singh and Suresh Kumar S/o Santosh Patel. They all three were charged with Section 302 and Section 302 read with Section 34 I.P.C. The appellant also charged with the offence punishable under Section 25 (1B) (a). They all abjured their guilt and pleaded for trial. After the trial, the learned Trial Court acquitted co-accused Rajkumar @ Tau S/o Narayan Singh and Suresh Kumar S/o Santosh Patel while convicted and sentenced the appellant as stated in paragraph 1 above.

8- The appellant has preferred this appeal on the grounds that the judgment and order of the trial Court is contrary to the law and facts on record. The conviction and sentence of the appellant is incorrect and improper as the trial Court has failed to appreciate the evidence that the deceased sustained pellet injuries on the chest and he was in critical condition. Dr. Sharma (PW-17) deposed that he could not survive more

than 5 to 10 minutes of sustaining injuries; therefore, it was not possible for him to lodge the F.I.R. Brother of the deceased Tarapath (P.W-8), who picked him up from the spot and took him to the Police Station/Hospital in the jeep has stated that he asked his brother as to whom he wants to be named in the F.I.R or whether he wants to name all the accused persons, the deceased expressed his wish only to name the appellant. This fact is contrary to the FIR as it contains name of all three accused persons. Further, it shows that neither the F.I.R was lodged by the deceased nor it was an impartial document. The Trial Court further failed to appreciate material contradictions and ommissions appeared in the statement of the prosecution witnesses and inconsistency of their statement with the medical evidence. It has not been considered by the learned Trial Court that all the prosecution witnesses were close relatives of the deceased and most of them have been declared hostile in respect of the co-accused persons who have been acquitted later on. When the witnesses have been disbelieved in respect of the co-accused persons, they cannot be believed in respect of the appellant. Improvisation of the facts in the statements of the prosecution witnesses has also not been considered by the Trial Court aptly. The Trial Court has discarded the defence version without any cogent reason which makes the conviction and sentence of the appellant uncalled for.

9- The prosecution has supported the impugned judgment and order of the Trial Court.

10- In the arguements, referring several paragraphs of the prosecution witnesses and the documents proved by them, the learned counsel appearing for the appellant has only elaborated the grounds mentioned above, so, we need not to reiterate them.

11- Before this Court the facts that on the date, time and place of the incident, i.e., 2.12.2008 at about 7:30 am in village Gadaghat, the deceased died due to gunshot injuries and that his death was homicidal have not been challenged by the appellant; therefore, without delving deep on this aspect, we confirm the finding of the Trial Court to the said effect.

12- The prosecution had approached the Trial Court with two sets of evidence; one, the dying declaration of the deceased and other, the ocular evidence. The evidence in respect of dying declaration can further be divided into two parts; (a) dying declaration in the form of F.I.R (Ex. P/20) got scribed by the deceased himself and (b) the claim of witness Bhagwati bai PW-3, son of the deceased Shivkumar PW-5 and brother of the deceased Tarapath PW-8, that the deceased disclosed before them that the appellant had caused him injuries by gunshot.

13- So far as the FIR is concerned, the trial Court itself has discarded it for several reasons disclosed in paragraph 28 of the impugned judgment. It has been observed by the learned trial Court that the deceased received gun shot on his chest. Total 55 pellets injuries were found. Some of the pellets pierced lungs and heart. Dr Sharma PW-17 opined that such a person may not survive for more than 5-10 minutes and after sustaining injury, he cannot be in a position to speak.

14- It is further observed that the incident took place at 7:30 am while FIR (Ex.P/20) was deduced at 8:00 am. The Police Station is approximately 5 km away from the place of the incident and a witness has admitted that it took about half an hour to arrange a jeep to take the deceased to the police station.

15- Devendra PW-4 has stated that they had taken the deceased to the

police station but he has not stated that the deceased lodged FIR there.

16- Son of the deceased Shivkumar PW-5 who assisted his uncle Tarapat to pick up the deceased and accompanied him to take him to the hospital, where the Doctor declared him brought dead, has not stated that they had taken the deceased to the police station first or that the deceased lodged any FIR.

17- It is mentioned in the FIR that other two accused persons beat up the deceased by sticks on his head, after the appellant opened fire. On medical examination Dr Sharma found two lacerated wounds caused by hard and blunt object on the back of the skull, but he revealed that both these injuries were 'post mortem' in nature and were caused after the death of the deceased.

18- FIR bears thumb impression of the deceased while Head Constable R.S.Sharma DW-1 has deposed on oath that the deceased used to sign the documents. He proved two documents Ex.D-4 and Ex.D-5 which bears signature of the deceased and this fact could not be refuted by the prosecution. There is no explanation available on record as to under what circumstances, a person who used to sign the documents put his thumb impression on the FIR Ex.P/34.

19- Undisputedly, the deceased was drenched in the blood, but no blood stains observed on the FIR. Dr Sharma also did not notice ink on the thumb of the deceased.

20- It is mentioned in the FIR that all the three accused persons caused injuries to the deceased but none of the eye-witnesses examined by the prosecution have supported the case of the prosecution in respect of the other two accused persons.

21- When confronted as to why the scriber of the FIR, SI K.N. Garg

PW-20 did not proceed to get the dying declaration of the deceased recorded by some Executive Magistrate, he deposed on oath that he tried for it but when he was asked to produce some document to support his statement, he took time and produced a documents which was found untrustworthy as nothing was mentioned in the case diary or other records maintained by the police according to the Rules and regulations. Therefore, the learned trial Court has rightly held that ascription of the FIR by the deceased is seriously doubtful. On careful scrutiny of the prosecution evidence, we confirm such findings of the trial Court.

22- In respect of oral dying declaration, three prosecution witnesses viz Bhagwati bai PW-3, Son of the deceased Shivkumar PW-5 and real brother of the deceased Tarapat have claimed that the deceased made a statement before them that the appellant had shot gun at him, but none of them corroborates the presence or the statement of the others. Bhagwati bai has clrasly stated that when she reached on the spot no one else was present. She made a clamour and called the family members of the deceased. Shivkumar has stated that when he reasched on the spot, his father was lying on the ground in the pool of blood. In reply to his question about what happened, he said that the appellant had fired a gunshot at him. But Tarapath who reached the spot with him, does not say so. Tarapat has stated that he reached the spot first, picked up his brother, laid him in the jeep and took to the police station. He further stated that on their way, responding to his question, the deceased disclosed that the appellant fired gun shot. But according to the prosecution case itself, the son of the deceased, Shivkumar PW-5 was sitting beside him in the jeep and he does not state that any such disclosure was made by the deceased. Thus, the statements of these witnesses do not earn credence to belive the fact narrated by them.

23- Now we would appreciate the occular evidence produced by the prosecution and relied upon by the trial Court. The prosecution has examined Urmila Bai PW-1, Revti @ Devki Bai PW-2, Bhagwati Bai PW-3, Devendra PW-4, Puna Bai PW-7, brother of the deceased Tarapath PW-8 as eye-witnesses and has examined son of the deceased Shivkumar PW-5 as a person who reached on the spot immediatly after the incident.

24- All these witnesses have stated before the police that the appellant fired gun shot at the deceased while other two accused persons beat him up with sticks on his head but before the Court they overturned this second part of the story and only supported a part of the same with regard to the appellant. They have not assigned any reason as to why they had impleaded the co-ccused persons before the police but left them out unscratched before the Court. It appears that on accuount of some settlement or after knowing the fact that the doctor had found the injuries attributed by them to the co-accused persons post mortem in nature, they have changed their version. Be that as it may, this fact and the fact that the witnesses are either relatives or neighbours of the deceased, makes their conduct doubtful and also makes close scruitny of their statement necessary.

25- All these witnessses (Urmila, Revti @ Devki, Bhagwati and Tarapat) except Shivkumar have claimed that they had seen the incident from a close distance like 10 ft. or some more but none of them endorses presence of the others. Rewati @ Devki bai and Bhagwatibai both state that when the firing took place, no one else was present there.

26- Undisputedly, the incident had taken place in village Gadaghat while witness Tarapath is a resident of adjacent village Atariya. It has come in his statement that it took time to reach the spot, therefore, the

apprehension that he had not seen the incident cannot be ruled out.

27- Tarapath has stated that on the date of the incident, somebody informed in his village that the deceased and the appellant are scrambling. He immediately rushed towards the place of incident. When he was at some distence from the place of the incident, he called and couraged up his brother stating that niether to scare nor to spare the appellant. But Shivkumar, who is son of the appellant has stated that at the time of incident he was in village Atariya where some boy from Gadaghat came and informed that the appellant has shot his father. He immediately informed his uncle (Foofa) Inder Singh who resides opposite to his house and another uncle (chacha) Tarapat thereafter. Inder Singh made a claimour and called the people to rush to village Gaadaghat. He along with Tarapath, Devendra and Inder ran towards village Gaadaghat by foot. He has stated that he had seen the deceased lying in the pool of blood. He does not say that he had seen the incident or that they had seen the appellant and the deceased scrambling with each other or that his uncle Tarapath called his father asking him not to afraid or not to spare the appellant. This makes the claim of Tarapath doubtful.

28- Tarapat (PW-8) and Bhagwati bai (PW-3) claimed that they had seen the incident, but they further state that they had asked the deceased as to what happened and that the deceased told them that the appellant had fired gunshot at him. This menifests that had these witnesses seen the incident, their would not be any need for them to ask the deceased about the same. If these witnesses might have seen the incident, there was no need for the deceased to disclose the name of the offender before them and if it is presumed that the deceased disclosed the name of the offender before them, then the claim of the witnesses that they had seen

the incident, comes under the clouds. All this makes the claim of the witnesses suspisious and indicates that they viz Bhagwati bai and Tarapat are not the witnesses of truth. Either they are hiding or are adding something in their statements against the appellant, which is beyond the truth or at least suspicious.

29- Both Bhagwatibai and Tarapat have stated that at the time of the incident; the appellant and the deceased were scrambling or were very close to each other as the appellant could hit the deceased with leg. But medical or scitific evidence does not support their version as their is no evidence that the gun injury was caused from the point blank distant. The FSL opined that there must be at least 8 yard distance between the place of fire and the injured. This further makes the claim of both these witnessses doubtful.

30- Bhagwatibai (PW-3) has stated in her examination-in-chief that she had seen the appellant firing the gunshot but in paragraph 6 of her examination, she has admitted that even after hearing the noise of abuses; she did not come out of her house as it was very usual in the village. When she was thinking about to come out of the house, she heard a sound of fire and commotion of many people. Only thereafter she came out of her house and saw that Tarapat, Inder, Devendra, Shivkumar, Deokibai, Urmila Bai, Puna Bai and several other villagers were present there and they were shouting that Dashrath (deceased) has been shot. The people gathered there, were trying to arrange a jeep, which they could arrange within half an hour. They took the deceased in the jeep immediately thereafter. This admission is contrary to her statement that she had seen the appellant firing the gunshot at the deceased and makes the same doubtful.

31- Contrary to his police Statement, another eye witness examined by

the prosecution, Devendra PW-4 has stated that after hearing that some firing had taken place in the village, he rushed to the spot and had seen the appellant running away from the spot. He has been declared hostile but nothing could be extracted by the prosecution to support its case in his cross-examination. In cross-examination he has admitted that there was a commotion after the incident. The villagers got frightened and were running in all direction. Some of them were running towards the place of the incident while some other opposite to that. Therefore, mere on the basis of such a statement, no conclusion favourable to prosecution can be derived.

32- Another eye witness Sunil PW-6 has also turned hostile. Halki bai PW-11 is only hearsay witness. Statement of both these witnesses also does not support the case of the prosecution.

33- It was the case of the prosecution that at the time of the incident Inder Singh had also accompanied Tarapath and Shivkumar, but he has not been examined before the Trial Court.

34- In her examination-in-chief Punabai has also claimed that she had seen the appellant firing gun-shot at the deceased but in paragraph 8 of her examination she has admitted that at the time of the incident she was in her bathroom situated after two three rooms in a row at back-side of her house and only after hearing the sound of fire, she came out and saw the deceased lying on the ground. Crowd gathered and took him to the hospital. In such a situation, it was not possible for her to see the appellant firing the gun-shot.

35- Tarapat has stated that immediatly after the incident, when he was taking his injured brother to the police station in the jeep, he asked him as to whether he (deceased) wants to name all the accused persons or he wish to name the appellant only. According to him, the deceased

replied that he wish to name the appellant only. In the FIR Ex.P/34, besides the name of the appellant, names of other two accused persons, who have been acquitted by the trial Court later, have also been mentioned. This leads us to the conclusions that either this witness himself was interested to expand the scop of the case by impleading some innocent people for the reasons best known to him or that under the circumstances, the possibility of the FIR being taught cannot be ruled out.

36- Perusal of the record indicates that after registration of the FIR, instead of finding truth, the police tried at their level best to prove it. It appears that it conducted the investigation on the same line given in the FIR. The police statements of all the material witnesses reflecting the name of the acquitted accused persons alongwith the name of the appellant. They all have been declared partly hostile in respect of both the acquitted accused persons. This creates doubts regarding impartiality of all the witnesses and this doubt further strengthens by the fact that even after their avaibility on the date of the incident, there statements have been recorded on the next day of the incident or thereafter when they were taken to the police station by the brother of the deceased. No justification is assigned for this delay. In the peculier facts and circumstances of the case, this delay is material and affects the credibility of the witnessses adversely.

37- Urmila and Rewti @ Deoki bai have admitted in their respective cross-examination that on the day of the incident, the police had come in the village and inquired about the matter; but did not record their statements. Next morning, the family members of the deceased took her to the police station and asked the SHO to record their statements as they had seen the incident and were eye-witnesses. This incites us to

think twice about credibility of their claim that they had seen the incident.

38- Tarapat has stated that immediatly after the incident, when he was taking his injured brother to the police station in the jeep, he asked him as to whether he (deceased) wants to name all the accused persons or he wish to name the appellant only. According to him the deceased replied that he wish to name the appellant only. In the FIR Ex.P/34, besides the name of the appellant, names of other two accused persons, who have been acquitted by the trial Court later, have also been mentioned. This leads us to the conclusions either this himself was interested to expand the scop of the case by impleading some innocent people for the reasons best known to him and that under the circumstances, the possibility of the FIR being taught cannot be ruled out.

39- Perusal of the record indicates that after registration of the FIR, instead of finding truth, the police tried at their level best to collect the evidence to support it. It appears that it conducted the investigation in conformity to the line drawn in the FIR. The police statements of all the material witnesses reflecting the name of the acquitted accused persons alongwith the name of the appellant. They all have been declared partly hostile in respect of both the acquitted accused persons. This creates doubts regarding impartiality of all the witnesses and this doubt further strengthens by the fact that even after their avaibility on the date of the incident, there statements have been recorded on the next day of the incident or thereafter when they were taken to the police station by the brother of the deceased. No justification is assigned for this delay. In the peculier facts and circumstances of the case, this delay is material and affects the credibility of the witnessses adversely.

40- The fact that the FIR got scribed by the deceased is also doubtful for more than one reason. Scriber of the FIR Sub-Inspector KN Garg PW-20 has admitted that at the time; the deceased was brought before him at the police station, he was drenched with the blood. Active bleeding from head, chest and nostrils was present. His condition was critical and there were all possibilities of his death. But the FIR does not reflect that it was written in haste or hurry. It appears that it has been written calmly and quitely in a very usual comfortable manner. Further, Mr. Garg has stated that due to critical condition, the deceased could not be brought to the police station, therefore, he himself went up to the Jeep and recorded the FIR. But this fact doesnot find mention in any of the police document. When confronted, he (SI Garg) tried to produce a suspisious document to cover up his false claim regarding attemts made by him to get the Dying Declaration recorded by the Tehsildar. Immediately after the incident the police reached on the spot, started the investigation and met with the witnessses; but didnot record their statements. Next day, when the family members of the deceased presented them at the police station and insisted to record their statements stating that they had seen the incident, the police recoded their statements under Section 161 Cr.P.C. Admittedly, the deceased was drenched in the blood. Tarapat, Inder, Dilip and Shivkumar picked him up and took to the hospital in a Jeep. In such a situation, their clothes as well as seat covers of the Jeep must have been stained with blood. But this vital evidence to establish the presence of the witnesses on the spot as well as the case of the prosecution has not been collected during the investigation for the reasons best known to the IO.

41- Sub Inspector B.R. Verma (PW-2) has proved recovery of the Katta from the possession of the appellant. His oral statement is supported by

memos of arrest disclosure and seizure Ex.P/20, P/21 and P/22. But independent support of his claim is not available on record. Out of two independent witnesses of this entire proceeding one Santosh S/o Shiv Prasad has not supported the alleged recovery while other one, viz., Santosh S/o Kailash has not been examined by the prosecution. While appreciating the evidence of the prosecution in the foregoing paragraphs, we have observed several facts which question impartiality or neutrality or unbiasness of the Police Officers conducted the investigation. When conduct of the Investigator is under aspersions, the law requires some independent and impartial support to rely upon the statement of the police officers. In the case at hand such support is not available on record. Therefore, we are hesitant to uphold the finding of the learned Trial Court in respect of holding the recovery of firearm proved from possession of the appellant.

42- In view of the aforesaid finding, we do not find it necessary to discuss the evidence regarding prosecution sanction granted by the District Magistrate to prosecute the appellant for the offence punishable under the Arms Act, 1959.

43- The recovered Katta was sent for Chemical Examination to the F.S.L Sagar. In its report Ex.P/32, its expert opined that this firearm was used but no definite opinion could be given regarding the time of its last use. The police could not recovered empty cartridge allegedly fired by the appellant. There is no other evidence to connect this firearm with the alleged incident. Therefore, the conviction of the appellant for using the firearm cannot be held proper.

44- Thus, the statement of all the material witnesses suffers from inherent improbablities and incongruities. Having regard to all the fundamental principles of law regarding the appreciation of the evidence, we feel that there are several grounds to doubt the truthfullness and reliability of the statements of the eye-witnesses. Their

presence at the scene of occurrance at the time of the incident is highly suspicious. Dying declarations relied upon by the prosecution either in the form of F.I.R or oral in the form of statement of the witnesses also do not appear trust-worthy. The prosecution could not bring on record some independent or impartial support to the recovery of firearm from possession of the appellant. It has also been unable to convincingly connect the firarm with the incident. Therefore, we do not consider it safe to base the conviction of the appellant thereon. Learned Trial Court erred in appreciating the evidence and ignoring the aspects discussed above. In our considered opinion, the appeal deserves to be allowed. Therefore, the same is allowed Hereby. The impugned judgment and order dated 03.11.2010 is set aside. The appellant is acquitted from all the charges under Sections 302 I.P.C and 25 (1B) (a) and 27 of Arms Act levelled against him. He be set at liberty forthwith if not required in any other case.

45- The order of the Trial Court regarding disposal of the case property is hereby confirmed.

46- The appeal is allowed accordingly.

                      (PRAKASH SHRIVASTAVA)                     (VIRENDER SINGH)
                                  JUDGE                                JUDGE

vivek-anand
Digitally signed by
ANAND KRISHNA SEN
Date: 2021.04.27
14:09:27 +05'30'