Uday Singh vs State Of M.P.
2021 Latest Caselaw 4018 MP

                               1
                                Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

            HIGH COURT OF MADHYA PRADESH
                   BENCH GWALIOR

                        DIVISION BENCH

       G.S. Ahluwalia and Rajeev Kumar Shrivastava J.J.

                        Cr. A. No. 871 of 2005

                   Udai Singh Vs. State of M.P.

Shri Anoop Nigam, Counsel for the appellant
Shri C.P. Singh, Counsel for the State

Date of Hearing          :   02-Aug-2021

Date of Judgment         :   06-Aug-2021

Approved for Reporting :

                              Judgment

                             06-Aug-2021

Per G.S. Ahluwalia J.

1.

This Criminal Appeal under Section 374 of Cr.P.C. has been

filed against the judgment and sentence dated 16-11-2005 passed by

VIIth Additional Sessions Judge (Fast Track), Gohad, Distt. Bhind in

Sessions Trial No. 115/2004 by which the appellant-accused has been

convicted under Section 302 of I.P.C. and has been sentenced to

undergo Life Imprisonment and a fine of Rs. 100/- with default

imprisonment of 1 month R.I.

2. The prosecution story in short is that on 17-3-2004, the S.H.O.,

Barohi, received a wireless message that one person in village Lavan

has gone lunatic and has assaulted three persons by Spear and is

roaming around. Accordingly, S.H.O., went to village Lavan. The

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

injured Lakhmi Singh (deceased) was taken to District Hospital,

Bhind. The appellant-accused was arrested by the police in a nearby

field. One broken weapon like Spear was seized from the possession

of the appellant-accused. Spot Map was prepared. Dehati Nalishi

was lodged by Mool Singh in Distt. Hospital Bhind, to the effect that

at about 13:00, he was in his house. He heard the noise, that the

appellant-accused has assaulted Dinesh by Spear and is searching for

the complainant, therefore, he ran away from his house and saw that

the appellant-accused gave a Spear blow to Dinesh. Thereafter, he

went running and caused injury to Lakhmi Singh. Thereafter he

assaulted Dinesh on his head and leg. As the appellant-accused was

looking for other members of the family, therefore, the complainant

ran away. At that time the police also reached there. The injured

Lakhmi was taken to hospital with the assistance of police. Dinesh

and Deepak were taken to hospital by the other villagers. The police

went in search of appellant-accused. However, Lakhmi Singh

expired on the way. On a dispute on the question of drain, the

appellant-accused has committed the offence.

3. The statements of the witnesses were recorded. The seized

Spear was sent for F.S.L. report. After completing the investigation,

the police filed charge sheet for offence under Sections 302,307 of

I.P.C.

4. The Trial Court by order dated 14-7-2004, framed charges

under Sections 302, 307 I.P.C.(on two counts)

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

5. The appellant-accused abjured his guilt and pleaded not guilty.

6. It appears that a prayer was made under Section 328 of Cr.P.C.

for stay of the trial on the ground that the appellant-accused is a

mentally retarded person and is not in a position to make his defence.

However, by order dated 12-7-2004, the said prayer was rejected.

7. The Prosecution in order to prove its case, examined Dr. C.R.

Raje (P.W.1), Lalji Singh (P.W.2), Nirpat Singh Kuswah (P.W.3),

Deepak @ Deep Singh (P.W.4), Ranveer Singh (P.W.5), Mool Singh

(P.W.6), Surendra Singh (P.W.7), Shoukin Singh (P.W.8), Randhir

Singh (P.W.9), Mohan Singh (P.W.10), Chetna Sharma (P.W.11),

Amresh Bohare (P.W.12), and Dinesh Singh (P.W.13). The appellant-

accused did not examine any witness in his defence.

8. The Trial Court after considering the evidence, convicted the

appellant-accused for offence under Section 302 of I.P.C. and

acquitted him for offence under Section 307 of I.P.C. (On two counts)

and awarded Life Imprisonment and a fine of Rs. 100, with default

imprisonment of 1 month R.I.

9. Challenging the judgment and sentence passed by the Court

below, it is submitted by the Counsel for the appellant, that the

injured eye witnesses have turned hostile. The other eye-witnesses

are not reliable witnesses, as according to them, a crop of mustard

was standing in the field and the height of the crop was above waist

and below the chest. It is further submitted that the witnesses are

alleged to have witnessed the incident from the distance of 100-150

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

meters and with standing crop it was not possible to see the incident.

It is further submitted that the appellant-accused was arrested on the

spot, but no blood was found on the spear. Further, no blood stained

cloths of the appellant-accused were seized.

10. Per contra, the Counsel for the State has supported the

prosecution case. It is submitted that not only the witnesses have

seen the incident, but the appellant-accused was also arrested on the

spot.

11. Heard the learned Counsel for the parties.

12. Before adverting to the question as to whether the appellant-

accused is the perpetrator of the offence or not, this Court thinks it

apposite to consider that whether the death of deceased Lakhmi

Singh was homicidal in nature or not?

13. Dr. C.R. Raje (P.W.1) has conducted the post-mortem of the

dead body of Lakhmi Singh and found the following injuries on his

body :

(i) Stab wound present over the medial aspect of lt. Upper lid of lt. eye 1 ½ cm x 1 ½ cm x 18 cm upto occi frontal bone;

(ii) Stab wound over the oral cavity over the tongue 1 ½ cm 1 cm x 12 cm ;

(iii) Stab wound over lateral aspect of lt. Upper arm 1 cm x 1cm x 10 cm.

On internal examination, fracture of maxillary and orbital bone was found.

14. The cause of death was shock due to injury to vital organs,

brain etc. as well as excessive blood loss. Duration since death was

within 12 hours. Nature of death was homicidal. It was also

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

observed that circumstantial evidence should be considered. The

Post-mortem report is Ex. P.1. In cross examination, it was stated by

the witness, that even in case of immediate treatment, the deceased

could not have been saved because of injury to his brain.

15. Lalji Singh (P.W. 2) is a hearsay witness. He has stated that he

was informed by Mool, Mohan and Surendra, that the appellant-

accused has caused injuries. However, in cross examination, this

witness claimed that "he was informed by Mool, Mohan and

Surendra" was disclosed to the police, but could not explain as to

why that fact is not mentioned in Ex. D.1.

16. Nirpat Singh Kushwaha (P.W.3) is the Patwari who had

prepared the spot map, Ex. P.4 on 19-5-2004.

17. Deepak @ Deep Singh (P.W.4) and Dinesh (P.W.13) are injured

witnesses, and they have stated that they could not see that who

caused injury to them. They were declared hostile, but nothing could

be elicited from their evidence to indicate, that it was the appellant-

accused, who caused injuries to them. Accordingly, the appellant-

accused has also been acquitted for offence under Section 307 of

I.P.C. on two counts.

18. Ranvir Singh (P.W.5) has also turned hostile and did not

support the prosecution case.

19. Mool Singh (P.W.6) has stated he had seen Lakhmi Singh in an

injured condition, but doesnot know as to how he sustained injury. He

further stated that he along with Mohan took the injured Lakhmi

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

Singh to District Hospital Bhind, however, Lakhmi Singh died on the

way. The report (Dehati Nalishi) Ex P.7, was lodged by him. The

spot map, Ex. P.9 was prepared by the police. This witness was

declared hostile and was cross examined, but nothing could be

elicited, which may hold the appellant-accused, guilty.

20. Surendra Singh (P.W.7) has stated that he and his father

Lakhmi Singh were working in the field. The appellant-accused

came along with spear and assaulted his father on his forehead, cheek

and neck. He further stated that when the appellant-accused had

come to the field, he was about 100 meters away from his father.

When the appellant-accused started assaulting his father, then he ran

towards him. However, before he could reach near to his father, the

appellant-accused had already run away. He also tried to chase him,

but he succeeded in running away. Thereafter, he came back and

brought his father to the road for taking him to Bhind. By that time,

the police had also reached there and accordingly, he took to Distt.

Hospital Bhind on the police vehicle, where Lakhmi Singh was

declared dead. A quarrel had taken place with the appellant-accused

on the question of drain and only on that issue, the appellant-accused

had killed Lakhmi Singh. The police had prepared Naksha

Panchayatnama, Ex. P.8. The police had seized spear from the

appellant-accused vide seizure memo Ex. P.11 and the arrest memo is

Ex. P.12. This witness was cross examined. In cross-examination, it

is stated by this witness that Mohan, Sadan and Randhir are his

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

brothers. His field is situated at a distance of 2 Km.s from the

village. The incident took place in a field which is adjoining to the

field of Munna Kankar. His field is adjoining to the field of Udai

Singh. His father Lakhmi Singh was cutting mustard crop. Jagdish

was not in the field at the time of incident. He further stated that

apart from this witness and the deceased, no other person was in the

field. He further claimed that his brother Mohan Singh was in his

house. However, this witness clarified on his own, that when the

appellant-accused was assaulting his father Lakhmi Singh, his brother

Mohan Singh was also coming towards the fields and was at a

distance of 100-150 Meters. He further admitted that he had not

informed the police that Mohan Singh was coming to the field. He

further stated that by the time he could reach near his father, he had

already sustained the injuries. However, he did not stop the

appellant-accused from assaulting his father. He further stated that he

could not see that on which part of the body of his father, the injuries

were caused by the appellant and only after he reached near his

father, then came to know that on which part of his body, the injuries

were caused. When he was cutting crop, then he was informed by

one person, that the appellant-accused has caused injury to Dinesh.

He further admitted that the height of mustard crop was above the

waist but below the chest. He was cutting mustard crop while

standing. His father was also cutting crop while standing. He further

admitted that there is an enmity between the family of this witness

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

and the appellant-accused. He denied that the appellant-accused was

lunatic at the time of incident. The police had also come on the road,

where he kept his father in the police vehicle. When he reached

District Hospital, Bhind, then he was informed by the Doctor that his

father has expired. The S.H.O. Chetna Sharma had also come with

him to District Hospital, Bhind. He had requested Chetna Sharma to

write the report. He further denied that since, he was not on the spot,

therefore, no F.I.R. was lodged by him. He also denied that there was

a rumor that some unknown lunatic person is roaming around the

village and has caused injuries. He denied that the appellant-accused

has been falsely implicated on account of enmity. He further denied,

that he is demanding Rs. 2 Lac, but as the appellant-accused is not

ready to give the same, therefore, he is falsely deposing against the

appellant-accused.

21. Shoukeen (P.W.8), another brother of Surendra Singh (P.W.7)

has turned hostile and did not support the prosecution case.

22. Randhir Singh (P.W.9) has stated that he had seen that the

appellant-accused is going towards his field. He assaulted Deepak

and also his father Lakhmi Singh. However, in cross-examination, he

stated that he had informed the police that the appellant-accused had

caused injuries to Lakhmi Singh, but could not explain any reason for

above mentioned omission in his police statement, Ex. D.2.

23. Mohan Singh (P.W. 10), has stated that about 8-10 days prior to

the incident, the appellant-accused had quarreled with them on the

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

issue of a drain. On 17-3-2004, the appellant-accused along with a

spear was roaming around in the village in order to kill them. He had

also tried to assault him, but this witness ran away. Thereafter, the

appellant-accused went towards the field where his father was

working, accordingly, this witness also went there. He saw that the

appellant-accused had caused injury by spear near the eye of his

father. Thereafter, his father fell down and the appellant-accused ran

away. In cross-examination, it is stated by this witness that on the

date of incident itself, the police had come to the village and the

appellant-accused was arrested from a distance of 2-3 Kms away

from the place of incident. He further claimed that he had not gone

to the District Hospital along with his father. However, he could not

explain as to how it was mentioned in his police statement Ex. D.3,

that he had also gone to the District Hospital, Bhind. He also could

not explain as to why his statement, that "he also went to the field" is

not mentioned in the police statement Ex. D.3. He also could not

explain as to why his statement, that the appellant-accused had also

tried to assault him is not mentioned in his police statement Ex. D.3.

He also claimed that he was at a distance of 100 meters from his

father, when he was assaulted. He further claimed that he had seen

only one assault above the eye of his father, and the remaining two

injuries were seen by him, only when he reached near his father. His

elder brother Surendra had also reached there and nobody else was

there. He further stated that only hot talk had taken place on the issue

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

of drain and neither any report was lodged nor any panchayat was

convened. He also stated that he also reached District Hospital Bhind

within 10-5 minutes after his father reached there. He further stated

that the report was lodged by his brother Mool Singh, but admitted

that he had not disclosed to Mool Singh that he has seen the incident.

24. Chetna Sharma (P.W.11) has stated that on 17-3-2004, She got

a wireless message, that the appellant-accused has assaulted Dinesh

Singh by a spear. Therefore, She went to village and came to know

that the appellant-accused has moved further to assault other persons.

The villagers pointed out towards the road, therefore, they went

towards that direction. By that time, the appellant-accused had

caused injuries to Deepak Singh and Lakhmi Singh. The moment,

She reached on the spot, She met with the family members of Lakhmi

Singh who were taking him to hospital. Thereafter, the villagers

pointed out towards one footpath. She saw the appellant-accused

was sitting there. When She tried to catch hold of him, then he tried

to avoid arrest by show of spear. However, he was overpowered. A

spear was seized on the spot vide seizure memo Ex. P.11. The

appellant-accused was arrested on the spot itself vide arrest memo

Ex. P.12. The spot map, Ex. P.9 was prepared. Thereafter, She went

to District Hospital, Bhind. Mool Singh lodged the Dehati Nalishi,

Ex. P.7 in the hospital. At that time, only the statements of Mool

Singh and Surendra Singh were recorded. The notice under Section

175 of Cr.P.C., Ex. P.16 was given to the witnesses. Lash

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

Nakshapanchayatnama Ex. P.8 was prepared in the hospital.

Thereafter, F.I.R., Ex. P.14 was registered. Marg information, Ex.

P.15 was written. Further investigation was done by another police

officer. In cross-examination, She has stated that the copy of F.I.R.

was sent to the concerning Magistrate on the next day, however, the

acknowledgment of the same has not been filed as She was

transferred on the next day. She further admitted that any

information received from the control room is entered into

Rojnamchasanha but admitted that it has not been filed. However, she

claimed that there is mention of Rojnahcha sanha no. 486 in the

F.I.R., but admitted that the contents of Rojnamcha sanha have not

been mentioned in the F.I.R. She further admitted that the Dehati

Nalishi, was lodged at 15:00 but still She did not mention the name

of the assailant in the requisition for Post-mortem as She did not

think it necessary. She further admitted that the timings of recording

of statement of Surendra is not mentioned in the police case diary.

The cross-examination of this witness was deferred on account of

non-availability of Rojnamcha Sanha and accordingly, She was

further cross-examined on 16-9-2006. The Rojnamcha sanha is Ex.

D4 C and Rojnamcha sanha of 17-3-2004 of her return to police

station is Ex. D.5C. She admitted that the only information received

was that one person has gone lunatic and has injured some persons.

25. Amresh Bohare (P.W.12) had recorded the statements of other

witnesses and got a spot map prepared from Patwari. The seized

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

article was sent to F.S.L., Sagar and the report of F.S.L. Sagar is Ex.

P.17. In cross-examination, this witness admitted that Mohan Singh

(P.W. 10) had not disclosed to him that he had seen the appellant-

accused causing injury to his father, in his police statement. He

further admitted that Mohan Singh had not informed that he also

went to the field.

26. Thus, from the evidence of Surendra Singh (P.W.7), it is clear

that this witness, took his father to District Hospital, Bhind, where

Naksha Panchayatnama Ex. P.8 was prepared at 15:15 on 17-3-2004.

Thus, it is clear that this witness was in District Hospital at 15:15.

Whereas this witness is also a witness of arrest of the appellant-

accused, and according to arrest memo Ex. P.12, the appellant-

accused was arrested at 14:20 on 17-3-2004. When this witness had

already left for District Hospital, Bhind along with his father, then it

is clear that he was not in the village, then how, the appellant-accused

could have been arrested at 14:20 in the presence of this witness ?

Further, a spear is alleged to have been seized from the possession of

the appellant-accused at 14:15 on 17/3/2004. When this witness had

already left for District Hospital, Bhind, then how, the spear could

have been seized from the possession of the appellant-accused in the

presence of this witness? It is not the case of prosecution, that the

appellant-accused was arrested and spear was seized prior to leaving

for District Hospital, but the specific case of this witness is that he

brought his father to the road, and by that time, the police had also

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

come, and he took his father to the District Hospital, Bhind, on the

police vehicle. Chetna Sharma (P.W.11) has also stated that as soon

as She reached there, She found that the family members of Lakhmi

Singh were taking him to the hospital. Thus, it is clear that this

witness was not present on the spot at the time when the appellant-

accused is alleged to have been arrested or when the spear was

alleged to have been seized from his possession.

27. Further, in the examination in chief, this witness has stated that

he had seen that the appellant-accused had caused injuries on the

forehead, cheek and neck of the deceased, but in the cross

examination, this witness has admitted that he had not seen that on

which part of the body of the deceased, the injuries were caused by

the appellant-accused. Further, according to this witness himself, the

mustard crop was standing and its height was above the waist and

below the chest. It is also the evidence of this witness, that he was at

a distance of 100 meters away from his father. When the crop above

the height of waist and below the height of chest was standing, then it

is difficult to watch the incident from a distance of 100 meters.

Further, this witness has also admitted his enmity with the appellant-

accused. It is true that enmity is a double edged weapon as on one

hand, if it provides motive for false implication, then at the same

time, it also provides motive for committing offence. But when the

surrounding circumstances indicate that the witness is not

trustworthy, then the enmity provides reason for falsely implicating

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

the accused. Further, when this witness was an eye-witness, then

why he did not lodge the Dehati Nalishi. Mool Singh (P.W.6) who

had lodged the Dehati Nalishi has not supported the case. Thus, this

Court is of the considered opinion, that Surendra Singh (P.W. 8) is

not a reliable witness.

28. Mohan Singh (P.W.10) has stated that earlier, the appellant-

accused had also tried to assault him but he ran away and thereafter

he also went towards the field, but could not explain as to why the

above mentioned facts were not mentioned in his police statement,

Ex. D.3, whereas Amresh Bohare (P.W.13) has stated that he had

recorded the police statement of this witness as it was narrated to

him. Further, this witness has also stated that he had seen the

incident from a distance of 100 meters. This witness has not stated

about the presence of Surendra Singh (P.W.8) at the time of assault.

Further, this witness has stated that he had also reached hospital and

thereafter, Mool Singh had lodged Dehati Nalishi, but admitted that

he had not disclosed to Mool Singh that it was the appellant-accused

who had caused injuries to the deceased Lakhmi Singh.

29. Randhir Singh (P.W.9) is not a trustworthy witness, in view of

omissions and contradictions. Although this witness had tried to

project himself as an eye-witness, but in his police statement, Ex.

D.3, he had not disclosed that he had witnessed the incident of

assault. Thus, he is not reliable witness.

30. Chetna Sharma (P.W.11) has stated that after arresting the

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

appellant-accused, She had prepared the spot map, Ex. P.9. The spot

map, Ex. P.9 has been prepared on the instructions of Mool Singh

(P.W.6). Mool Singh (P.W.6) is also a witness of Lash

Panchayatnama Ex. P.8, which was prepared in the District Hospital

Bhind. Thus, it is clear that Mool Singh was in the District Hospital,

Bhind. In the spot map, Ex. P.9, neither the date of preparation of

spot map, Ex. P.9 is mentioned nor the time. If the spot map was

prepared after the arrest of appellant-accused, then it is clear that it

must have been prepared after 14:20. Mool Singh (P.W.6) has stated

that he took his father Lakhmi Singh to the District Hospital, Bhind.

If Mool Singh (P.W.6) had already left for District Hospital, Bhind

along with the injured, then it is clear that he was not present on the

spot at the time of preparation of spot map. Thus, the preparation of

spot map on the instructions of Mool Singh is highly suspicious

document, and thus cannot be relied upon.

31. Further, Surendra Singh (P.W.7) has stated that Chetna Sharma

(P.W.11) had also gone to District Hospital along with him and

injured, Bhind, whereas Chetna Sharma (P.W.11) has stated that She

went to District Hospital, after arresting the appellant-accused, as

well as after recovering a spear from the possession of the appellant-

accused, and after preparing spot map. As already pointed out that

since, Surendra Singh (P.W.7) had already left for District Hospital,

Bhind, therefore it was not possible for him to be a witness of seizure

and arrest of appellant-accused, and similarly since, Mool Singh

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

(P.W.6) had also left for District Hospital, Bhind, therefore, it was not

possible for him to be present on the spot at the time of preparation of

spot map. Thus, it is clear that Chetna Sharma (P.W.11) has created

ante dated and ante timed documents i.e., seizure memo Ex. P. 11,

Arrest memo Ex P.12 and Spot Map Ex. P.9.

32. There is another aspect of the matter. According to the

prosecution story, the appellant-accused was arrested on the spot, but

his cloths were not seized. It is not possible that when the appellant-

accused assaults three persons, then no blood stains would be there

on his cloths. Further, the spear seized from the appellant-accused

was not having any blood as is evident from F.S.L. report Ex. P.17. If

the appellant-accused was arrested on the spot with no time for him

to wash out the spear, then the absence of blood on spear assumes

importance.

33. Thus, on due consideration of evidence which has been led by

the prosecution, the following circumstances would emerge :

(i) An information by wireless message was received that some

person has gone lunatic and has caused injuries to various persons.

(ii) Chetna Sharma (P.W.11) went to village and on the instructions

of the villagers, went towards the road, where the family members of

deceased Lakhmi Singh were making arrangements for taking the

injured (deceased) to the hospital.

(iii) Mool Singh (P.W.6) and Surendra Singh (P.W.7) also went to

Hospital along with the deceased.

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

(iv) The appellant-accused was arrested on the spot and a broken

spear was seized from his possession in the presence of Surendra

Singh (P.W.7), but in fact, Surendra Singh had already left for District

Hospital, Bhind and was not present in the village or spot.

(v) The investigating officer Chetna Sharma (P.W.11), prepared

spot map, Ex. P.9 and thereafter went to hospital, whereas Surendra

Singh (P.W.7) has stated that Chetna Sharma (P.W.11) had also gone

to District Hospital with him and the injured.

(vi) Although Spot Map, Ex. P.9 was prepared on the instructions

of Mool Singh (P.W.6) but no Dehati Nalishi was lodged by Chetna

Sharma (P.W.11) at the time of preparation of Spot Map, Ex. P.9,

whereas the Dehati Nalishi was lodged in the hospital on the

information of Mool Singh.

(vii) No date and timings are mentioned on spot map Ex. P.9. which

clearly indicates that the said document is an antedated and ante

timed document.

(viii) According to Mool Singh (P.W. 6) he had also gone to the

District Hospital along with the deceased Lakhmi Singh, thus it is

clear that he was not present in the village at the time when spot map,

Ex. P.9 was prepared, as according to Chetna Sharma (P.W.11) she

went to hospital only after preparing spot map, Ex. P.9.

(ix) According to Surendra Singh (P.W.7) he also went to the

District Hospital along with his father, but the seizure memo, Ex. P.11

by which the broken spear was seized from the possession of

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

appellant-accused, and was prepared at 14:15, bears his signatures as

a witness. When Surendra Singh (P.W.7) had already left for District

Hospital, Bhind, then his presence in the village at the time of seizure

of spear was not possible.

(x) Similarly, the appellant-accused was arrested at 14:20 in the

presence of Surendra Singh (P.W.7), but since, Surendra Singh

(P.W.7) had already left for District Hospital, therefore, his presence

in the village is not possible. Thus, the seizure memo Ex. P.11 and

arrest memo Ex. P.12 are ante dated and ante timed documents.

(xi) Chetna Sharma (P.W.11) has stated that after arresting the

appellant-accused, She went to Hospital, but has not clarified that

where the appellant-accused was kept after his arrest? There is

nothing on record to show that whether the appellant-accused was

sent to Police Station, or She was moving from one place to another

along with the appellant-accused?

(xii) Surendra Singh (P.W.7) has admitted that the height of mustard

crop was above waist and below chest and he was at a distance of 100

meters away from the deceased. Thus, with a standing crop of such a

height, it is not possible for the witness to see the incident from a

distance of 100 meters.

(xiii) Mohan Singh (P.W. 10) has not stated about the presence of

Surendra Singh (P.W.7) on the spot at the time of assault.

(xiv) Mohan Singh (P.W.10) has also stated that he had seen the

incident from a distance of 100 meters, but in view of height of

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

standing crop, it is not possible to witness the incident from such a

distance.

(xv) Mohan Singh (P.W.10) has not stated that Surendra Singh

(P.W.7) had also chased the appellant-accused.

(xvi) There are major variations in the evidence of Surendra Singh

(P.W.7) and Mohan Singh (P.W.10).

(xvii) There are major omissions and contradictions in the evidence

of the witnesses.

(xviii)Randhir Singh (P.W.8) has also claimed himself to be an eye-

witness, but in his police statement, Ex. D.3 he had not disclosed that

he had witnessed the incident.

(xix)Although the appellant-accused was arrested on the spot, but his

cloths were not seized. It is not possible that after assaulting three

persons, there would not be any blood stains on his cloths.

(xx) The spear seized from the appellant-accused was not having

any blood stains although, not only the appellant-accused was

arrested from the spot, but the spear was also seized from him

immediately.

(xxi) Surendra Singh (P.W.7) and Mohan Singh (P.W. 10) have

admitted their enmity with the appellant-accused, therefore, in view

of the surrounding circumstances, these witnesses had every reason

to falsely implicate the appellant-accused.

(xxii) According to Chetna Sharma (P.W.11) a copy of F.I.R. was sent

to the concerning Magistrate on the next date. Although the copy of

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

acknowledgment of receipt of F.I.R. has not been filed, but even if it

is accepted that the copy was sent on the next day, then the delay in

sending the copy has not been explained.

34. The Supreme Court in the case of Bijoy Singh Vs. State of

Bihar reported in (2002) 9 SCC 147 has held as under :

7. Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157 CrPC is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. It is always for the prosecution to explain such a delay and if tendered, no adverse inference can be drawn against it.

35. The Supreme Court in the case of Ruli Ram Vs. State of

Haryana reported in (2002) 7 SCC 691 has held as under :

7. So far as the acceptability of evidence is concerned, the trial court and the High Court analysed the evidence in detail and have held it to be plausible and acceptable, and that it suffers from no infirmity. It has been noted that in a faction-ridden village, independent witnesses, as submitted by the learned counsel for the accused-appellant, are difficult to get. Enmity is a double-edged sword. While it can be a basis for false implication, it can also be a basis for the crime. The court has to weigh the evidence carefully and if after doing so, holds the evidence to be acceptable, the accused cannot take the plea that it should not be acted

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

upon. When a plea of false implication is advanced by the accused, foundation for the same has to be established.

36. The Supreme Court in the case of Vidyadharan v. State of

Kerala, reported in (2004) 1 SCC 215 has held as under :

8...... When a plea is taken of false implication, courts have a duty to make deeper scrutiny of the evidence and decide the acceptability or otherwise of the accusations.....

37. The Supreme Court in the case of Kailash Gour Vs. State of

Assam reported in (2012) 2 SCC 34 has held as under :

38.12......Enmity between the complainant party and the accused being a double-edged weapon there could be motive on either side for the commission of offence as also for false implication.

38. Thus, it is clear that the prosecution has failed to prove that it

was the appellant-accused who caused injuries to the deceased

Lakhmi Singh. On the contrary, it is found that Chetna Sharma

(P.W.11) has created ante dated and ante timed documents. Further,

Surendra Singh (P.W.7) and Mohan Singh (P.W.10) are not the eye

witnesses and they have falsely implicated the appellant on account

of enmity.

39. Accordingly, the conviction of the appellant for offence under

Section 302 of I.P.C. is hereby set aside.

40. The judgment and sentence dated 16-11-2005 passed by VIIth

Additional Sessions Judge (Fast Track), Gohad, Distt. Bhind in S.T.

No. 115/2004 is hereby set aside.

41. The appellant is in jail. He be released immediately, if not

required in any other case.

Udai Singh Vs. State of M.P. (Cr.A. No. 871 of 2005)

42. The appeal succeeds and is hereby Allowed.

(G.S. Ahluwalia)                          (Rajeev Kumar Shrivastava)
          Judge                                               Judge


                            ARUN KUMAR MISHRA
                            2021.08.07 13:21:05 +05'30'