Mansingh vs The State Of Madhya Pradesh
2021 Latest Caselaw 8661 MP

                                  1

              MADHYA PRADESH HIGH COURT,
              PRINCIPAL BENCH AT JABALPUR
                          Crl. A No. 482/09
Appellant :                  Om Prakash
                                 Vs.
Respondent :                 State of Madhya Pradesh


                                 AND


                          Crl.A No. 1154/09
Appellant :                  Mansingh & Anr.,
                                 Vs.
Respondent :                 State of Madhya Pradesh


For the Appellants:     Mrs. Nirmala Nayak, Ld. Counsel, Amicus
                        Curiae in Crl. A No. 482/09 and Mr. Akshay
                        Pawar, Ld. Counsel, Amicus Curiae in Crl. A
                        No. 1154/09.


For the Respondent : Mr. Piyush Bhatnagar, Ld. Panel Advocate in
                     Crl. A No. 482/09 and Crl. A No. 1154/09.


Coram: Hon'ble Mr. Justice Atul Sreedharan
       Hon'ble Mr. Justice Sunita Yadav


                             JUDGEMENT

(13/12/2021)

Per: Atul Sreedharan J.

The present appeals have been filed by the Appellants

aggrieved by the judgement and order dated 17/02/09, passed

by the Court of the Ld. Special judge (Scheduled Castes and

Scheduled Tribes [Prevention of Atrocities] Act) Sehore in Special

Case No. 13/2008, by which the Appellants were found guilty of

an offence u/s. 302 r/w 34 IPC and sentenced to suffer rigorous

imprisonment for life and a fine of Rs. 1000/- and an additional

rigorous imprisonment for three months in default of fine. Om

Prakash is Appellant in Crl. A No. 482/09 (filed individually) and

is Appellant No. 2 in Crl. A No. 1154/09, which is not permissible.

Therefore, the Crl. A No. 1154/09 stands dismissed as not

maintainable as against Appellant No. 2 Om Prakash and his Crl.

Appeal No. 482/08, which is first in point of time shall be

considered. Crl. A No. 1154/09 is being considered only for

Appellant Mansingh. The Appellant Om Prakash was granted the

benefit of suspension of sentence by order of this Court dated

24/06/09 and has been on bail ever since.

2. This appeal has a chequered history. The appeals were dismissed

by an order dated 09/05/2019 passed by a co-ordinate bench of

this Court. Against that order, the Appellant Om Prakash

preferred a Special Leave Petition before the Supreme Court being

Special Leave Petition (Crl.) No. 1365/2021 in which leave was

granted and it was heard as Criminal Appeal No. 128/2021. The

Supreme Court was of the view that the High Court did not return

a finding on the statement of PW6 Deepak Sethi, who deposed in

cross examination that when he asked PW1 Dev Anand

(supposedly the sole eyewitness in this case) as to who had

committed the murder of the deceased Mangilal, PW1 is stated to

have told him that he does not know who has committed the

murder of Mangilal. The Supreme Court held that the High Court

ought to have dealt with the disclosure made by PW6 Deepak

Sethi in his cross examination which was at conflict with the

statement of PW1 Dev Anand. Therefore, the Supreme Court set

aside the order dated 09/05/2019 passed by this Court and

remanded the case for consideration afresh by taking into

account the statement of PW6 and give reasons as to whether the

statement of PW1, that he had seen the incident as an eyewitness,

was credible enough to sustain a conviction.

3. The brief facts of this case are as follows: as per the case of the

prosecution, on 18/02/2008, the deceased Mangilal was

murdered by the Appellants who bludgeoned his head and face

with stones, near the dal mill of Chadtimal. The sole eyewitness

to the incident is Devanand Chawariya. He is also the scribe of

the FIR. The FIR is registered as Crime No. 91/08 at P.S. Ashtha,

District Sehore, on 18/02/2008 at 12.45 PM. The date of the

incident in the FIR is 18/02/2008 and the time of the incident is

11.30 AM. In the FIR, the Appellants are named as accused

persons. The FIR is proved as Ex-P/1. In the FIR, the informant

Devanand Chawariya (PW1) states that on the date of the

incident, he had gone to meet Vinod Kumar (PW2) at the Raigarh

Bank near the old Municipal Corporation. There, he met the

deceased Mangilal sweeper who is his nephew by relation.

Mangilal had come to the bank to withdraw Rs. 200/-. From

there, PW1 says that the deceased and he were headed towards

the liquor shop when on the way they met the Appellants

Mansingh and Omprakash, friends of the deceased, and the three

of them went to the liquor shop and started drinking. PW1 told

Mangilal that he is drunk and that he should go home. Thereafter,

the three of them started going towards the dal mill of Chadtimal.

PW1 turned back and went behind them and he saw the

Appellants bludgeoning Mangilal and when PW1 shouted to them

to stop, the Appellants ran away from the scene of crime and

Mangilal died on the spot.

4. The Ld. Counsel/Amicus for Appellants Mansingh and Om

Prakash has argued that the Appellants have been falsely

implicated in this case and that they are innocent. Mrs. Nirmala

Naik, Ld. Counsel and Amicus, appearing for the Appellant Om

Prakash argued that the sole eyewitness in this case Devanand

Chawariya (PW1) is not a credible witness as there are several

discrepancies in his testimony. She has argued that the very

genesis of the offence is doubtful as PW1 says that he had gone

to the bank to take money from Vinod Kumar. However, Vinod

Kumar (PW2) in his deposition does not mention that PW1 had

come to him asking for money. She further says that PW2 and

PW4 are the witnesses to the seizure. PW2, in his examination in

chief has not supported the prosecution with regard to the

disclosure by Appellant Mansingh and the recovery of his blood

stained shirt. He was declared hostile and pursuant to cross

examination by the Prosecutor, PW2 has supported the

prosecution's case and has stated that the Appellant Mansingh

has informed the police in his presence that he has hidden the

shirt and thereafter, got the same seized in the presence of PW2.

PW4 has emphatically stated in support of the prosecution with

regard to the seizure of the blood stained shirt hidden by the

Appellant Mansingh, but the Ld. Counsel for Om Prakash has

said that PW4 cannot be believed as he is closely related to the

deceased.

5. Ld. Counsel for Appellant Om Prakash has also argued that PW6

Deepak Sethi has demolished the case of the prosecution. She

has submitted that the witness, in cross examination has stated

"मैंने दे वानंद से पूछा था की ककसने मर्डर तो दे वानंद ने कहा था के मेरे को पता नह ं ककसने मर्डर

ककया है ।" (I asked Dev Anand as to who has committed the murder

to which he replied I do not know who has committed the

murder). The Ld. Counsel for Om Prakash has submitted that Dev

Anand PW1 being the sole eyewitness, had informed PW6 that he

did not know who committed the murder of Mangilal. She has

further submitted that PW6 has not been declared hostile by the

prosecution and neither has he been re-examined by the

prosecutor in an attempt to seek clarification. In other words,

Mrs. Nirmala Nayak, Ld. Counsel for the Appellant Om Prakash

has submitted that the statement of PW6 is binding on the

prosecution and the same renders the statement of PW1 highly

doubtful and the benefit of that must go to the accused.

6. Mr. Akshay Pawar, Ld. Amicus Curiae appearing on behalf of the

Appellant Mansingh has largely adopted the arguments of the Ld.

Counsel for Om Prakash and has additionally placed several

arguments for the consideration of this Court. He has argued that

the entire investigation has been partisan and one sided.

According to him, several independent, natural and neutral

witnesses have not been examined by the prosecution and those

who have been examined, are all related to the deceased and are

interested witnesses.

7. In order to assail the testimony of Devanand Chawariya (PW1),

the Ld. Counsel for Om Prakash has adverted to paragraph 28 of

PW1's testimony where the omission in his testimony and his

statement u/s. 161 Cr.P.C (Ex-D1/PW1), are (a) that he had seen

the incident from a hundred feet, (b) that after Mansingh had

assaulted the deceased with the stone, both Mansingh and Om

Prakash assaulted the deceased with stones, each throwing the

stone at the deceased once, (c) that upon the witness shouting at

the Appellants, they ran away, (d) after which the witness ran

towards Mandi Gate shouting and narrated the incident to Vinod

(PW2) and (e) that he had informed the police that Appellant Om

Prakash was shouting "assault this Mehtar, don't let him get

away alive".

8. The arguments of the Ld. Counsel for Mansingh can be

summarised as follows. (1) The witnesses are all related to each

other and the deceased and therefore they have falsely implicated

the Appellants. (2) The statements of the mill workers were not

recorded in the course of investigation though they were natural

and neutral witnesses. (3) That, PW6 had asked PW1 as to who

had murdered the deceased to which PW1 answered that he does

not know. Therefore, the testimony of PW1 that he was an

eyewitness to the incident is doubtful and the benefit of the same

must be given to the Appellants. (4) That there was sufficient time

between the incident and the registration of the FIR and therefore,

the possibility of the FIR being concocted cannot be ruled out. (5)

The seizure of the blood stained shirt at the behest of the

Appellant Mansingh was from an open space as stated by PW2,

accessible to the general public and therefore the piece of

evidence could have been planted by anyone. (6) The stones

seized from the scene of occurrence did not have any brain matter

sticking on it and therefore, it cannot be assumed that the said

stones seized from the scene of crime were the ones which were

used in the murder. (7) The post mortem report does not reveal

any sand and dirt sticking to the open wounds of the deceased

and therefore, the same put a doubt on the scene of occurrence

itself as the prosecution's case is that the place where the offence

was committed with a dusty place with sand and stones, (8) The

FSL (serologist) report does not reveal that the blood group of the

deceased was AB and therefore, the finding that the blood on the

stones and the shirt seized from the Appellant Mansingh, which

tested positive for AB group, belonged to the deceased and (9) no

motive for the crime has been proved by the prosecution.

9. Counsel for Mansingh has referred to three judgements. They are

(2016) 2 SCC 607 - State of Rajasthan Vs. Daud Khan (with

specific referred to paragraph 31), AIR 1953 SC 314 -

Mohinder Singh Vs. State (with specific reference to

paragraph 11 [paragraph 12 as published in SCC]). Both these

judgments are, on the necessity to establish forensic evidence

through the testimony of an expert. The third judgement is (2003)

1 SCC 398 - Raghunath Vs. State of Haryana and anr., (with

specific reference to paragraph 7 and 8 - acquittal by

Supreme Court as human blood found was not proved as that

of the deceased).

10. Heard the Ld. Counsels for the parties and perused the record of

the Ld. Trial Court. The date and time of the incident is 18/02/08

at 11.30 AM. The FIR is Ex-P/1 and it has been recorded at 12.45

PM i.e., within an hour and fifteen minutes of the incident. It is

prompt and it names the Appellants as the accused persons. The

facts as narrated in the FIR have already been given in paragraph

3 supra.

11. The post-mortem report is Ex.P11. In all, the doctor has noted six

injuries. The first injury is a lacerated wound on the occipital

region on the right side which is bone deep with the presence of

haematoma and depressed fracture of the skull bone. The second

injury is also a lacerated wound on the forehead lower on the right

side, which is bone deep with a depressed frontal bone. The third

injury is a lacerated wound on the left side of forehead, above the

eyebrow resulting in a depressed fracture. The fourth injury is a

lacerated wound on the face on the left side below the eye, which

is bone deep resulting in the depression of the left eyeball. The

fifth injury is a lacerated wound on the occipital region resulting

in depressed fracture with the brain matter peeping through it.

The sixth injury comprises of two vertical lacerated wounds in the

parietal region, rear to each other resulting in a depressed

fracture of the skull. All the injuries were caused by hard and

blunt objects. The internal injuries which have been discovered

by the doctor are fractures on the skull bone. The brain is

contused and lacerated and there is a huge quantity of blood in

the cranial cavity which is clotted and coming out from the

wound. The cause of death, as per the opinion of Dr. R. C. Gupta

(PW5) is cardio-respiratory failure due to sudden and excessive

haemorrhage from poly-trauma inflicted on the body of the

deceased. The duration of death is within 24 hours before the

commencement of autopsy and all the injuries were caused by

hard and blunt objects.

12. Devanand Chawariya (PW1) is the sole eyewitness. His in-chief

examination is largely a reiteration of what has already been

reproduced from the FIR in paragraph no.3 supra. Learned

amicus appearing on behalf of Appellant Om Prakash has drawn

our attention to paragraph no.20 of the cross-examination of this

witness where he has stated that the stone that was used in the

murder may have been around 300 to 400 gms. She has tried to

contradict this witness with reference to the seizure memo,

Ex.P/3, which relates to the stone that has been seized from the

scene of occurrence, which reveals that the stone weighed about

five kilograms. As regards this, the Ld. Counsel for the State has

argued that the PW1 is a rustic person, working as a sweeper and

it cannot be expected that the witness can be precise about the

weight of the stone that was used in the commission of the offence

merely on the basis of visual appreciation. Therefore, it is

contended on behalf of the State that the variation in the weight

of the stone used in the offence as seen from the statement of

PW1 and Ex.P/3, is natural and inconsequential. We agree with

the submission put forth by the Ld. Counsel for the State.

13. Learned counsel for Appellant Man Singh has drawn our

attention to paragraph no.28 of the cross-examination of

Devanand Chawariya (PW1) where he states that he had told the

police that he had seen the incident from 100 feet and saw the

Appellant Man Singh hitting deceased Mangilal with a stone,

upon which the deceased fell down. He further states that he had

also told the police that after this, Mangilal was assaulted by

Appellant Om Prakash who struck him with a stone. He also says

that he had shouted at both the Appellants upon which they ran

away. He further states that he ran towards Mandi gate shouting

about the incident. He says met Vinod (PW2) on the way and

informed him about the incident and that he (PW1) had heard

Appellant Om Prakash shouting that the sweeper (deceased)

should not escape alive. As regards this part of PW1's testimony,

he has been confronted with his police statement (EX.D1) to

which he says that if what he has stated in his Court testimony

is not there in the FIR and in his police statements, he does not

know the reason. We examined the police statement of PW1 which

is Ex.D1 and found that he has stated that he is a witness to the

incident where he has seen the Appellants herein assaulting the

deceased with the stones. Under the circumstances, what is

sought to be shown as an omission/improvisation in his

testimony, is not an omission as PW1 has stated the same before

the police in his statement u/s. 161 Cr.P.C. However, the

narrative that he has given in his testimony with regard to the

Appellants herein assaulting the deceased with stones is not

ippsissima verba, but that by itself does not render the testimony

of PW1 unreliable. Precious little has been brought out by way of

contradiction in the statement of Devanand Chawariya (PW1)that

could be said to go to the root of the prosecution's case.

14. Vinod Kumar (PW2) is not an eyewitness to the incident but is a

witness to the seizure of the shirt of Appellant Man Singh. He is

also a hearsay witness who states that Devanand Chawariya

(PW1) had informed him about the incident. As regards the

seizure of the shirt of Appellant Man Singh, this witness had

initially turned hostile but upon cross-examination by the

prosecutor, has supported the case of the prosecution. In cross-

examination by the defence, in paragraph no.10 he has dismissed

the suggestion as incorrect that Appellant Man Singh did not

make a disclosure under section 27 of the Evidence Act in his

presence which later led to the recovery of the shirt worn by him

during the offence.

15. PW3 is Smt. Leela Bai who says that on the date of incident she

was at her home at 11:00 a.m. when Appellants Man Singh and

Om Prakash came to her house and told Mangilal (deceased) that

a ditch had to be dug and asked him to accompany them.

Thereafter, all the three went away. She also says that later,

Vinod Kumar (PW2) came and informed her that the Mangilal

(deceased) is lying dead near the highway behind the Dal Mill.

She further says that she and Vinod Kumar (PW2) went on the

motorcycle of PW2 to the scene of occurrence where she saw two

stones lying near the deceased. In her cross-examination, she

says that the deceased was her brother-in-law and was also her

neighbour. No material contradiction has been brought out by the

defence in her cross-examination.

16. PW4 is Balram who is the second witness to the seizure of the

shirt of Appellant Man Singh and he has supported the case of

the prosecution and has not turned hostile. He is also a witness

to the 27 memorandum of Appellant Man Singh. No contradiction

has been brought out in the cross examination of this witness.

PW5 is Dr. R. C. Gupta who performed the post-mortem and has

reiterated the contents of the post-mortem report in his

testimony.

17. PW6 is Deepak Sethi. Much reliance has been placed on this

witness by both the learned counsels for the Appellants. He is

stated to have reached the scene of occurrence immediately after

the incident. In his examination-in-chief he says that his shop is

at a short distance from the scene of occurrence. He also says

that some people informed him that behind the house of

Chadtimal Jain, a murder has taken place. He further says that

he first informed the police through his mobile and thereafter

went to the scene of occurrence where he saw Mangilal (deceased)

lying dead on a pile of granite chips. He further says that he saw

Devanand Chawariya (PW1) standing there. He further says that

he saw injuries over the head of the deceased. In cross-

examination, he says that Devanand Chawariya (PW1) is known

to him since childhood and that he works in the same ward where

this witness resides. He states that he had asked Devanand

Chawariya (PW1) as to who has committed the murder to which

he is stated to have replied that he does not know. He further

says that he reached the scene of occurrence between 12:00 and

12:15 p.m., and that he had spoken to Devanand Chawariya

(PW1) at the scene of occurrence itself. Thus, on the basis of the

statement in cross-examination of Deepak Sethi (PW6), the

defence has vehemently argued that the presence of Devanand

Chawariya (PW1) at the scene of occurrence at the time when the

offence took place, is gravely suspect.

18. PW7 is Vijay Rajsingh. He was a Constable on the date of his

testimony before the learned trial court. He is the most important

witness whose testimony would reveal whether Deepak Sethi

(PW6) has testified honestly with regard to him having met

Devanand Chawariya (PW1) at the scene of occurrence. Vijay

Rajsingh (PW7) says that on the date of incident, he was posted

as head Constable at P.S Astha. On that date, Devanand

Chawariya (PW1) gave a report upon which Crime No.91/08 was

registered against the Appellants herein under section 302 read

with section 34 IPC and section 3(2)(v) of the Scheduled Castes

and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

PW7 has reproduced in his testimony, the contents of the FIR

recorded by him. As per the FIR recorded by him, Devanand

Chawariya (PW1) informed this witness that on 18.2.2008 he had

gone to Rajgarh bank to meet Vinod Kumar (PW2). There

Devanand Chawariya (PW1) met the deceased who had come to

the bank to withdraw Rs.200/-. Thereafter Devanand Chawariya

(PW1) informed PW7 that he along with his nephew Mangilal

proceeded towards the liquor shop in Mandi where they were

joined by two friends of the deceased (the Appellants herein).

Thereafter, Devanand Chawariya (PW1) states that the deceased

along with the Appellants herein went to the liquor shop and

started drinking. Thereafter Devanand Chawariya (PW1) is stated

to have told the deceased to go home upon which the deceased

and the Appellants herein started walking towards the Dal Mill of

Chadtimal. He (PW1) says that he went from behind them and

saw the Appellants herein assaulting the deceased with stones

due to which the deceased fell down on the ground. He says that

he ran towards the three shouting not to kill the deceased upon

which the Appellants are stated to have told him that "we will not

let this sweeper live" after which both of them ran away.

19. Upon information given by Devanand Chawariya (PW1), Vijay

Rajsingh (PW7) noted the time of the incident as 11:30 A.M. In

paragraph no.4 of his examination-in-chief, Vijay Rajsingh (PW7)

states that before registering the FIR, he was informed on

telephone by Deepak Sethi (PW6) that a person is lying dead near

the Dal Mill of Chadtimal. Vijay Rajsingh (PW7) informed Sub-

Inspector Mr. S. R. Choudhary (PW8) through wireless so that he

may proceed to the scene of occurrence forthwith. Besides, he

also states that from the police station Assistant Sub-Inspector

Mr. Siddiqui started for the scene of occurrence. He (PW7) has

proved Ex.P13, which is the daily diary entry of 18.2.2008 at the

police station relating to Entry No.1505/08. In cross-

examination, this witness states unequivocally that the

information he received over mobile from Deepak Sethi (PW6) was

at 12:20 P.M. In paragraph no.7, this witness states that

Devanand Chawariya (PW1) came to the police station and got the

FIR registered at 12:45 P.M.

20. It is necessary to advert and deal with each argument taken by

the learned counsel for Appellant Man Singh which we have

referred to in paragraph no.8 supra. The first contention of

learned counsel for Appellant Man Singh is that all the witnesses

are related to each other and the deceased and, therefore, they

have falsely implicated the Appellants. The said contention does

not hold water in the light of the settled position that merely

because the witnesses are related or interested they cannot be

disbelieved if they corroborate each other on material particulars

and have not been contradicted to such an extent that goes to the

core of the prosecution's case. It is also a settled position that an

interested witness wants to ensure that the actual perpetrator of

the offence is tried and punished.

21. The second contention of the learned counsel for Appellant Man

Singh was that the statements of Mill workers were not recorded

in the course of investigation, though they were natural and

neutral witnesses. As regards this contention, the choice of the

witnesses is the prerogative of the police and the prosecution.

There is no presumption that merely because neutral and natural

witnesses were not produced before the learned trial court, the

case of the prosecution is tainted. What the court must see is

whether the witnesses who have been produced by the

prosecution go to prove the guilt of the accused beyond

reasonable doubt. Besides, such witnesses who have been

dropped by the prosecution could always have been produced

before the court as defence witnesses.

22. The third contention of the learned counsel for Appellant Man

Singh is that Deepak Sethi (PW6) had asked Devanand Chawariya

(PW1) as to who had murdered the deceased to which Devanand

Chawariya (PW1) is alleged to have answered that he does not

know and therefore, the testimony of Devanand Chawariya (PW1)

was doubtful. We shall advert to this contention of the learned

counsel for Appellant Man Singh later in this judgment.

23. The fourth contention of learned counsel for Appellant Man Singh

is that there was a long gap between the incident and the

registration of the FIR and, therefore, the possibility of the FIR

being concocted cannot be ruled out. We outrightly reject this

contention. The incident had taken place at 11:30 A.M. and the

FIR has been registered at 12:45 P.M. The distance of the place

of occurrence from the police station is one furlong. Therefore, as

the FIR has been registered within one hour and fifteen minutes

from the time of incident, we hold that there was no delay in the

registration of the FIR.

24. The fifth contention of the learned counsel for Appellant Man

Singh is that the seizure of the blood-stained shirt at the behest

of Appellant Man Singh was from an open space, as stated by

Vinod Kumar (PW2), accessible to general public and, therefore,

the piece of evidence could have been planted by anyone. In this

regard, we are of the opinion that Vinod Kumar (PW2) has turned

hostile though he has subsequently supported the case of the

prosecution and cross-examined by the prosecutor. However,

Balram (PW4) who is also a witness to the seizure has supported

the case of the prosecution and has not turned hostile. Merely

because the shirt was seized from a place, which is also accessible

to the general public, does not by itself render the seizure

doubtful.

25. The sixth contention of learned counsel for Appellant Man Singh

is that the stone seized from the scene of crime did not have any

brain matter sticking on it and therefore, it cannot be assumed

that the said stones seized from the scene of crime were the ones

that were used in the murder. As regards this contention, the

post-mortem report and the testimony of the doctor go to reveal

that the brain matter was only 'peeping' out from the skull but no

part of it was missing in order to support the contention of the

learned counsel that a part of the brain matter could have been

sticking to the stones which were used in the offence. Besides,

the FSL report (Ex.P25), reflects that the stones used in the

offence were marked as articles "C" and "D", were blood stained

with human blood and, the blood group was also identified as "AB

Group". We shall discuss the relevance of this at a later stage.

Therefore, this contention of learned counsel for Appellant Man

Singh is also rejected.

26. As regards the seventh contention of the learned counsel for

Appellant Man Singh, the post-mortem report does not reveal any

sand and dirt sticking to the open wounds of the deceased and,

therefore, the same puts a doubt on the scene of crime itself as

the prosecution's case is that where the incident had occurred

was a dusty place with sand and stones. We have given our

thoughtful consideration to this proposition put forth by the

learned counsel for the Appellant Man Singh. However, a post-

mortem report is basically to disclose the nature of injuries, both

internal and external, suffered by the victim and to give the

probable cause of death. If minute details regarding sand and

gravel material being stuck to the body are recorded, the same

would only go to show that the post-mortem was performed with

a very high degree of observation. However, the exclusion of the

same from the post-mortem report by itself would not put to

doubt the scene of occurrence as suggested by the prosecution.

It is also relevant to mention here that the FSL report reveals that

the blood on the sand recovered from directly under the body was

of 'AB' group and as there were no injuries on the body of the

Appellants, the blood on the sand from the scene of occurrence

could only be that of the deceased, which could be presumed by

a process of deduction by elimination. Therefore, the failure on

the part of the doctor conducting the post-mortem to record the

presence of sand and dirt sticking to the body, does not put to

doubt the place of occurrence.

27. The eighth contention put forth by the learned counsel for

Appellant Man Singh is that the FSL (Serologist's report) does not

reveal that the blood group of the deceased was "AB" and,

therefore, the finding that the blood on the stones and the shirt

seized from the Appellants, which tested positive, was of "AB"

group belonged to the deceased is doubtful. In order to buttress

his submission, the Ld. Counsel for Man Singh has referred to

the judgement of the Supreme Court in State of Rajasthan Vs.

Daud Khan - (2016) 2 SCC 607 with specific reference to

paragraph 31. In that case, the Respondent (accused) was

convicted by the Trial Court and the High Court for the offence

u/s. 304 Part I and acquitted of the charge under section 302

IPC. The State being aggrieved filed the appeal before the

Supreme Court. The Supreme Court dismissed the appeal and

upheld the orders passed by the Trial Court and the High Court.

In paragraph 31, the Supreme Court, extracted paragraph 10

from another judgement of the Supreme Court [Mohinder Singh

Vs. State - AIR 1953 SC 415] wherein it was opined that where

death was caused with the use of 'lethal weapon' it was for the

prosecution to prove through expert evidence that the death was

caused in the manner as suggested by the prosecution.

28. The Ld. Counsel also relied upon another judgement of the

Supreme Court being, Raghunath Vs. State of Haryana and

Another - (2003) 1 SCC 398. In this case, the Appellants before

the Supreme Court were convicted u/s. 302 r/w 149 IPC. The

case was one of a sudden fight between two groups. The

Appellant/Accused before the Supreme Court argued that one

member from the side of the accused was abducted by the

Complainant side and the Appellant side went to rescue him

when the fight broke out between the two groups in which one

person died from the side of the Complainant. One of the factors

on which the courts below had convicted the Appellants in that

case was the seizure of blood from the scene of crime which was

identified as blood of human origin by the serologist in the FSL

report. The blood group was not determinable. The Supreme

Court held that in the absence of the blood group in the FSL

report, it could not be determined if the blood so seized was that

of the deceased or that of the person from the side of the

Appellant party who was assaulted and grievously injured by the

Complainant side. The Supreme Court allowed the appeals and

acquitted the Appellants in that case.

29. The Ld. Counsel for the Appellant Man Singh has relied on these

cases to impress upon us that in the case at hand, the FSL report

does not reveal the blood group of the deceased to establish that

the blood seized from the scene of occurrence was that of the

deceased. In State of Rajasthan Vs. Daud Khan, the Supreme

Court opined that in cases of death by 'lethal weapon' the

scientific evidence must support the prosecution's case of the

manner in which the offence was committed. In Raghunath Vs.

State of Haryana and ors., the Supreme Court opined that the

FSL report must reveal the blood group if it has to assist the

prosecution's theory that the blood on the seized article indeed

was that of the deceased.

30. In this case, the FSL report reveals that the stones (articles "C"

and "D") and the soil taken from the scene of occurrence (article

"E"), all had the blood group "AB" on it. Article "J" was the pant

and Article "H" was the shirt belonging to Appellant Man Singh,

which also contained the blood group "AB". The sand that was

taken from the scene of occurrence was the blood that had

drained from the body of the deceased which was of "AB" group.

That by itself would go to establish that the blood group of the

deceased was "AB". It has never been the case of the defence that

the Appellants ever suffered any kind of injuries and neither does

the arrest memo of the Appellants reveal that they had any kind

of injuries on their bodies at the time of their arrest, which could

probabilise the blood being that of the Appellants. Therefore, the

presence of blood group "AB" on the sand, which was directly

below the place where the body of the deceased lay, goes to

establish beyond reasonable doubt that the blood group of the

deceased was also "AB". Therefore, the judgements relied upon

by the Ld. Counsel for the Appellant Man Singh are of no

assistance. Thus, the contention of the Ld. Counsel for the

Appellant Man Singh in paragraph 25 is answered by us

accordingly.

31. The ninth contention of the learned counsel for Appellant Man

Singh is that no motive for the crime has been proved by the

prosecution. This we shall deal at a later part of our judgment.

32. The specific direction of the Supreme Court, while remanding this

case, was to consider the statement of Deepak Sethi (PW6) and

give a finding thereupon. At the risk of repetition, Deepak Sethi

(PW6) has stated in his cross-examination that when he inquired

from Devanand Chawariya (PW1) as to who has committed the

murder of the deceased, Devanand Chawariya (PW1) is stated to

have told Deepak Sethi (PW6) that he does not know. This part of

the testimony of Deepak Sethi (PW6) is conspicuous by its

absence in his 161 statement. However, the learned prosecutor

has not re-examined Deepak Sethi (PW6) by seeking a

clarification with regard to his police statement where he had not

stated so. The prosecution has also not declared him hostile. At

first blush, the statement of Deepak Sethi (PW6) has the

propensity to demolish the case of the prosecution in its entirety

as it strongly contradicts the statement of Devanand Chawariya

(PW1) and brings into doubt as to whether he was actually an

eyewitness to the incident.

33. Devanand Chawariya (PW1) in his court statement gives the

description of the people who had come to the scene of occurrence

after he had witnessed the incident. He says that after he saw the

incident, he ran towards the Mandi gate shouting and on the way

he met Vinod Kumar (PW2) whom he informed about the incident.

In paragraph no.5 of his testimony he says that when he went

along with the police to assist in the making of the site map

(Ex.P2), at that time Vinod Kumar (PW2), Rajkumar and other

persons were present at the scene of occurrence. In paragraph

no.29, Devanand Chawariya (PW1) has specifically negated the

suggestion that it was Deepak Sethi (PW6) who had reached the

scene of occurrence first and had informed the police. Thus,

Devanand Chawariya (PW1) in his entire testimony does not state

that Deepak Sethi (PW6) came to the scene of occurrence

immediately after the incident after the Appellants had run away.

Devanand Chawariya (PW1) also does not state that there was

any kind of conversation between him and Deepak Sethi (PW6).

In fact, Devanand Chawariya (PW1) does not even state that

Deepak Sethi (PW6) was present at the scene of occurrence.

34. Vinod Kumar (PW2) states that he was informed by Devanand

Chawariya (PW1) about the incident and how the Appellants had

killed the deceased. He says that he went to the scene of

occurrence on his motorcycle and saw the deceased lying dead.

Behind him, he says Devanand Chawariya (PW1) and Rajkumar

(not examined as a witness) also came to the scene of occurrence

and thereafter a big crowd collected there. This witness also does

not give any reference to Deepak Sethi (PW6) being present at the

scene of occurrence. The statement of this witness that Devanand

Chawariya (PW1) and Rajkumar reached to the scene of

occurrence after him is to be construed in the backdrop of the

fact that Vinod Kumar (PW2) was informed by Devanand

Chawariya (PW1) about the murder on his way to the police

station to register the FIR and thereafter when Devanand

Chawariya (PW1) returned to the scene of occurrence along with

the police, Vinod Kumar (PW2) was also there.

35. PW4 is Balram who is also a witness to the subsequent events

and who says that Devanand Chawariya (PW1) was shouting at

the junction that Mangilal has been murdered upon which he

went to the scene of occurrence and saw the deceased lying there

with his head crushed. This witness does not give any detail with

regard to the other persons present at the scene of occurrence. In

paragraph no.12 he says that it is correct to suggest that when

he reached the scene of occurrence, there were a lot of people

from the neighbourhood who had gathered there but he is unable

to recall those persons specifically.

36. If one goes by the statement of Devanand Chawariya (PW1), it is

very clear that he does not take the name of Deepak Sethi (PW6)

being there at the scene of occurrence immediately after the

incident or that he ever had a conversation with him. Neither does

this witness say that when returned along with the police to the

scene of occurrence, Deepak Sethi (PW6) was seen there. A doubt

is raised at this juncture, whether Deepak Sethi (PW6) had ever

gone to the scene of occurrence.

37. As per the testimony of Deepak Sethi (PW6), Devanand Chawariya

(PW1) was well-known to him from childhood. Therefore, if

Deepak Sethi (PW6) were at the scene of occurrence, it would have

been natural for Devanand Chawariya (PW1), at the time of

registering the FIR, to inform the police about the presence of

Deepak Sethi (PW6) having come after him to the scene of

occurrence, but PW1 does not say so

38. Head Constable Vijay Rajsingh (PW7) recorded the daily diary

entry relating to the call that he received from Deepak Sethi

(PW6). PW7 says that he received a call from Deepak Sethi (PW6)

at 12:20 PM. This fact is corroborated by Ex.P13, which is the

daily diary entry reflecting the call received at the police station

from Deepak Sethi (PW6) at 12.20 PM. When this statement of

Vijay Rajsingh (PW7) is juxtaposed on the statement of Deepak

Sethi (PW6), the presence of Deepak Sethi (PW6) at the scene of

occurrence becomes suspect.

39. Deepak Sethi (PW6) in paragraph1 of his statement says that as

soon as he got the information about the incident, the first thing

he did was that he informed the police on his mobile phone and

only after that does he proceed to the scene of occurrence.

Thereafter in paragraph 3 he witness states that he had reached

the scene of occurrence between 12:00 hours and 12:15 PM when

he allegedly saw Devanand Chawariya (PW1) at the scene of

occurrence. The time of reaching the scene of occurrence which

is given by Deepak Sethi (PW6) as 12:15 PM is incorrect because,

the daily diary entry shows that the police received the call only

at 12:20 PM which Deepak Sethi (PW6) says was made from his

shop even before he proceeded to the scene of occurrence. Thus,

it is absolutely clear that Deepak Sethi (PW6) reached the scene

of occurrence only after 12:20 PM and not before that.

40. Therefore, from the statements of Devanand Chawariya (PW1)

and Vinod Kumar (PW2) who does not name Deepak Sethi (PW6)

as one of the persons who was at the scene of occurrence, Vijay

Rajsingh (PW7), the head constable who testified that the call

from Deepak Sethi (PW6) was received at 12:20 PM, clearly

reveals that Deepak Sethi (PW6) did not have an opportunity of

meeting Devanand Chawariya (PW1) at the scene of occurrence

as Devanand Chawariya (PW1) was on his way to the police

station which was 'one furlong' (as given in the FIR, Ex. P1) from

the scene of occurrence for the registration of the FIR at 12.45

PM. Therefore, the statement made by Deepak Sethi (PW6) in his

cross-examination that he had such a conversation with

Devanand Chawariya (PW1) in which Devanand Chawariya (PW1)

allegedly stated that he did not know who has committed the

murder of the deceased is a statement that is factually incorrect.

Thus, the contention of the Ld. Counsel for the Appellant Man

Singh in paragraph 22 supra, stands answered by us.

41. The prosecution's case however does raise a doubt whether the

act of the Appellants was one u/s. 302 or u/s. 304 IPC. The

undisputed case of the prosecution is that (a) the deceased and

the Appellants were known to each other. (b) The deceased and

the Appellants sat down and consumed liquor together at the

liquor shop shortly before the incident. (c) There was no pre-

existing enmity between the deceased and the Appellants or any

other motive that was proved. (e) The eyewitness PW1 reaches the

scene of occurrence only in time to see the assault on the

deceased and not before that to see if the assault was preceded

by a fight or argument between the deceased and the Appellants.

Under the circumstances, we feel that it must not be lost sight of

that the Appellants and the deceased had consumed alcohol just

before the incident. Though we are aware that self-induced

intoxication would not bring the case of the Appellants under the

general exceptions of the IPC, and no such defence has also been

pleaded by the Appellants, we cannot at the same time overlook

the probability of a sudden fight having taken place between the

deceased and the Appellant to which there were no witnesses,

which could be a mitigating factor while affixing criminal liability.

This is all the more relevant as the time between the consumption

of alcohol by the three in complete harmony to the sudden act of

violence by the Appellants is extremely short. Thus we hold that

a sudden fight between the deceased and the Appellants was

extremely probable which however was not witnessed by PW1.

Thus, the contention of the Ld. Counsel for the Appellant in

paragraph 31 that there was no motive for the act of the

Appellants, stands answered by us in favour of the Appellants

and we hold that the act of the Appellants is covered under

exception four to section 300 of the IPC making them liable for an

offence u/s. 304 Part I IPC and not u/s. 302 IPC.

42. Under the circumstances, the appeals are partly allowed. We set

aside the conviction of the Appellants u/s. 302 IPC and instead

hold them guilty for an offence u/s. 304 Part I IPC and sentence

them to suffer ten years rigorous imprisonment. If the Appellant

Man Singh who is undergoing his sentence has already completed

ten years, he shall be released forthwith unless required in any

other case.

43. As regards, Appellant Om Prakash, he shall surrender before the

Ld. Trial Court which shall send him to jail to complete the

remaining part of his sentence.

44. Before parting with this case we record our deep sense of

appreciation to the Ld. Amicus Curiae who have appeared in this

case and assisted us effectively.

45. With the above, the appeals stand disposed of.

(Atul Sreedharan)                                (Sunita Yadav)
      Judge                                           Judge


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Date: 2021.12.15 15:56:46 +05'30'
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