Madhya Pradesh High Court
Ramanuj vs The State Of Madhya Pradesh on 15 December, 2021
Author: Atul Sreedharan
1 Cr. A. No. 2230/2008
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
CRIMINAL APPEAL NO. 2230/2008
Ramanuj and others
Vs.
The State of Madhya Pradesh
Counsel for the appellant : Mr.Satish Chaturvedi,
Advocate
Counsel for the Respondent : Mr. K.B. Vishwakarma,
Nos2 to6: Advocate
Counsel for the Respondent/State : Mr. Manhar Dixit,
Advocate
Corum : Hon'ble Mr. Justice Atul Sreedharan
Hon'ble Mrs. Justice Sunita Yadav
******
JUDGMENT
( 15-12-2021)
Per : Sunita Yadav, J.
The present appeal has been filed by the appellants aggrieved by
the judgment and order dated 04.10.2008 passed in Sessions Trial
No.60/2005 by the learned Additional Sessions Judge (Fast Track
Court), Amarpatan, Distt. Satna, by which the appellants herein have
been convicted for the offence under Section 302 of IPC and sentenced
to undergo life imprisonment and fine of Rs.2,000/-; with default
stipulation of additional rigorous imprisonment of six months in
addition thereto. The appellants have also been convicted for the
offence under Section 148 of IPC and sentenced to undergo two years
rigorous imprisonment and fine of Rs.1,000/- with default stipulation of
additional rigorous imprisonment for three months in addition thereto.
2. The prosecution case in brief is that on 21.11.2004 at about 07:30
p.m. straw stubble of Ramkhilawan, the father of the deceased Amar @
Veer Sing, was burned by some unknown person. Hearing this news
when Ramkhilawan reached at the place of occurrence, the appellants
who were equipped with various weapons assaulted him. It is further
alleged that when Amar Singh @ Veer Singh and Sanjay interfered in
the scuffle, the appellant no. 3 Ramsiya has assaulted Amar Singh on his
one eye with Sabbal. Sanjay was also assaulted by the other appellants.
Amar Singh @ Veer succumbed to injuries. Thereafter, the matter was
reported to concerned police and a criminal case was registered against
all the appellants along with one more co-accused, who has been
declared absconded.
3. PW-19 Dr. D.K. Gupta has examined the dead body of Amar @
Veer Sing, S/o Ramkhilawan. According to this witness, he found
following injuries on the body of the deceased.
"1. Gunshot injuries:- size 2"x2", is present on the right eye.
Right eye, eye lid, eye lashes, eyebrow are completely absent. The
margin of wound is irregular and blackened, margin is slightly
inverted and blood clot is present. A plastic cap is present in the
wound of right eye. Bony orbit of right eye, superior lateral inferior
are fractured. Posterior bones of right orbit are also fractured.
2. Gunshot wound:- 1"x1" is present on the left occipital region
of skull. Margin of wound is irregular, everted. At the site of wound
there is hole in the occipital bone ½"x ½" size.
3. Lacerated wound 1"x ½" on the right temporal region.
4. Lacerated wound 1"x½" on right side of forehead.
5. Lacerated wound on the right side of forehead 1" away from
above wound".
4. This witness has opined that the death of the deceased Veer Singh
was caused by brain haemorrhage on account of a fire arm injury on his
right eye and also on skull. The evidence of this witness proves that the
death of Veer Singh was homicidal.
5. The prosecution case is based on ocular evidence. As many as 19
witnesses have been examined by the prosecution to prove its case. PW-
1 Ramkhilawan, PW-2 Mahendra Singh, PW-3 Ramhit, PW-4 Indrajeet
Patel, PW-5 Ramfal, PW-6 Shivbalak, PW-7 Sanjay Singh, PW-8
Ramvishal Kushwaha, PW-9 Balmik, PW-10 Beby, PW-11 Arti and PW-
12 Rambaksh Singh are the eye witnesses.
6. Ex.P/5 is the FIR which was registered by the police on
21/11/2004 upon the report of PW-4 Indrajeet Patel. The story narrated
in the FIR is to the effect that on account of some dispute over burning
of straw stubble, a fight was broke out and accused persons assaulted
the deceased Veer Singh and his father Ramkhilawan. The facts
mentioned in the FIR reveals that the accused Ram Siya inflicted a blow
of sabbal on Veer Singh's eyes, accused Om Prakash and Lalwa hit
Sanjay Singh, and accused Lalua threw 5 to 6 bombs on injured
Ramkhilawan.
7. PW-1 Ramkhilawan Patel who is an injured eye witness along
with other eye witnesses were examined twice by the trial Court as some
of the accused persons who had been absconding were arrested later on
and the prosecution witnesses who had already been examined were re-
examined. In his deposition taken on 04/10/2005, this witness has stated
that his stubble was burned down by some unknown persons and when
he went to see the damages caused by fire, the accused persons started
beating him up. This witness has further deposed that all the accused
persons were wielding rods and sticks. At paragraph 3 of his statement,
this witness has categorically stated that it was only Ramanuj who
murdered his son Amar @ Veer Singh who died on the spot. However,
in his statement taken on 25/01/2007 this witness has stated at variance
with his previous statement and said that the wife of Lalwa inflicted a
blow of Tangi on him and when he shouted and started running away,
Lalwa shot him on his leg and Lalua exploded bomb over him. This
witness has further stated that when Veer Singh and Sanjay Singh
arrived on the spot hearing the commotion, all the accused persons
started assaulting them. Lalwa shot a gun fire on Veer Singh. Sanjay
Singh was inflicted by rod. Thereafter; he, any how, reached near Atta
Chakki (flour mill) and became unconscious.
8. Upon perusal of the statement of this witness, it reveals that he
has changed the entire prosecution story in his statement taken on
04/10/2005 and deposed that it was only Ramanuj who murdered his
son Veer Singh. However, he completely changed his version again in
his statement taken on 25/01/2007 and attributed overt acts to all the
appellants for causing the death of his son. Therefore, the statement of
this witness lost credibility.
9. PW-3 Ramhit, in his examination-in-chief deposed that the
accused persons had burned the stubble of Ramkhilawan. When
Ramkhilawan went to see his burnt stubble, Ram Siya and Lalwa shot a
gun fire at Ramkhilawan on his head. Ramkhilawan has also received a
gunshot injury one of his thighs. When Amar @ Veer Singh came to
rescue Ramkhilawan, all the accused persons started assaulting Amar @
Veer Singh and killed him. However, at paragraph 3 of his statement, he
has totally changed his earlier version and stated that he is not able to
see properly. He has also stated that even at the time of incident he was
unable to see properly and did not see who inflicted whom, he only
heard scuffling sounds of villagers.
10. In the light of above, it is apparent that this witness has totally
changed his original version in his cross-examination and so also his
original version is at variance with the prosecution story, his evidence is
not found to be credible.
11. PW-4 Indrajeet Patel in his examination-in-chief deposed that
Ramkhilawan's stubble was burned by some one and when
Ramkhilawan went to the place of occurrence to enquire about it, all the
accused persons started hitting Ramkhilawan. This witness has further
deposed that Ram Siya had sabbal, Lalwa had Katta, Lalua had iron
rod, the wife of Lalwa had Tangi with her. They all hit Baba
(Ramkhilawan) who fell down on the ground. When Amar @ Veer
Singh came to rescue Ramkhilawan, Ramanuj hit him with a stick and
Ram Siya inflicted a blow of sabbal in the eye of Amar Singh. Lalwa
shot 3 to 4 fires and Lalua exploded bombs on Ramkhilawan.
12. When we compare the statements PW-4 Indrajeet Patel, PW-1
Ramkhilawan Patel and PW-3, it appears that there are material
contradictions and variations between their statements. According to
PW-1 Ramkhilawan and PW-3 Ramhit, deceased received injuries on
one of his eyes because of the bullet fired by Lalwa, however, PW-4
Indrajeet has stated that Ramsiya has inflicted a blow of Sabbal in the
eyes of the deceased. Considering the material contradiction in the
statements of these witnesses, as discussed above, the credibility of the
prosecution story becomes doubtful.
13. The FIR has been lodged by PW-4 Indrajeet Patel. When we
compare the facts narrated in FIR and the oral testimony of this witness
it reveals that there are material omissions and contradictions between
the same. At paragraph 9 of his statement he denied having stated in FIR
that it was only Ram Siya and Brijwasi who inflicted injury on deceased
with a sabbal. He has also deposed that in the FIR he has stated that
Lalwa had shot a fire at the deceased. However, in the FIR the above
fact is not mentioned. It is apparent from the above that he has changed
the entire prosecution story in his court evidence.
14. PW-5 Ramfal has deposed that at the time of incident all the
accused persons were hitting Veer Singh with Lathis and rods. He saw
Ramkhilawan lying injured near the Atta Chakki. This witness has
further deposed that he fled away after having seen all that. However, in
his Court statement taken on 24/01/2007, this witness has changed his
earlier version entirely and stated that at the time of incident Lalwa was
wielding a Katta, Lalwa's wife had Tangi and rest of the accused
persons were wielding rods. After having seen this, he ran away from
the spot. The credibility of this witness becomes highly doubtful as
during the course of recording of evidence when he was asked to
identify the accused persons, he could not identify them correctly which
is mentioned at paragraph 8 of his cross-examination.
15. PW-6 Shivbalak in his examination-in-chief has corroborated the
prosecution story, however, during the course of recording of evidence
he failed to identify the accused-Lalwa, who according to him was
wielding a katta at the time of incident and allegedly fired at deceased.
For the reasons just mentioned, the evidence of this witness does not
gather confidence.
16. PW-7 Sanjay Singh, in his examination-in-chief, said he saw
accused Dhakad inflicting a blow of rod on Veer Singh, Lalua and
Ghinha inflicted blows of rods and Lalwa fired a gun shot, Ram Siya
had a rod. However, at paragraph 4 of his statement he has changed his
version and stated that Lalua exploded a bomb and Lalwa shot a gun fire
at Veer Singh on his temple. This witness has further deposed that
accused persons have also assaulted him. However, there are material
omissions and contradictions between this witness's Court statement
and police statement which is Ex.D/7. In the police statement this
witness did not say that it was accused Lalwa who shot a gun fire at
deceased instead he says it was Lalua who had fired at deceased. This
contradiction is highly significant and goes to the root of prosecution
story.
17. PW-8 Ram Vishal Kushwaha in his first Court statement recorded
on 05/10/2005 supported the case of the prosecution, however, in his
subsequent statement recorded on 05/02/2008, he has completely
changed his earlier version and says he does not know about the incident
and didn't see who assaulted whom. On account of his wavering
statement, this witness is not found to be trustworthy.
18. PW-9 Balmik has supported the case of prosecution in his
examination-in-chief, however, at paragraph 9, 10 and 11 of his
statement he has entirely changed his earlier version and deposed that he
has not seen any fight but only saw burning stubble of Ramhit. Some
women were standing there and saying they had not burned the stubble.
Thereafter Ramkhilawan and he went back to their houses. In the light
of above variations, the evidence of this witness becomes doubtful.
19. PW-10 Baby who is a child witness, has deposed that she saw
Ramkhilawan and Veer Singh being beaten up by the accused persons.
She further says that the accused Lalwa had fired at Veer Singh.
However, in her police statement she said it was Lalua who fired at
deceased. It is important to mention here that accused/appellants Lalwa
and Lalua are two different persons, therefore, the variations between
the Court statement and police statement of this witness with regard to
the part played by above two accused persons is significant and
adversely impact the story of the prosecution.
20. This witness has also turned hostile in subsequent stage and
denied having seen the entire incident. At paragraph 9 and 10 of her
statement she has stated that because of the fear of Ramkhilawan, she
had narrated the wrong version in her previous statement.
21. PW-11 Arti who is also a child witness, has in her examination-in-
chief supported the case of the prosecution, however, at paragraph 4 and
5 she changed her earlier version and denied having seen the incident.
This witness has also deposed that because of the threat of
Ramkhilawan she had given her earlier statement.
22. The fact that PW-10 Baby and PW-11 Arti who are child
witnesses, have deposed under the threat of being killed by
Ramkhilawan, casts serious doubts over the veracity of the prosecution
story.
23. It is apparent on perusal and what has been discussed above that
the prosecution story which was mentioned in the FIR registered on the
same day was not corroborated entirely by the prosecution witnesses
and there is a significant contradiction with regard to the weapon used to
cause fatal injury to deceased as well as the person/accused who caused
it. In the FIR it was mentioned that the fatal injury received by the
deceased in his eye was inflicted by accused Ram Siya with the sabbal,
however, in Court statement, witnesses have stated that it was a gunshot
injury caused by accused Lalwa. It is, therefore, clear that the medical
evidence and the oral evidence of the witnesses are at significant
variance. Prosecution witnesses who said that accused Lalwa had fired
the gun shot at the deceased have failed to identify him during trial. The
police has not seized particles of bombs which were allegedly exploded
by the accused persons. Consequently, the substratum of the evidence
given by the eye-witnesses examined by the prosecution is found to be
false.
24. It is well settled that the prosecution can succeed by substantially
proving the very story it alleges. It must stand on its own legs. It cannot
take advantage of the weakness of the defence. Nor can the Court, on its
own, make out a new case for the prosecution and convict the accused
on that basis. In the present case the prosecution has miserably failed to
make out a case against the appellants.
25. For the reasons stated herein above, we are of the firm opinion
that in view of the material contradictions, omissions and improvements
in the statement of prosecution witnesses recorded under Section 161 of
Cr.P.C. as well as deposition before the Court, the appellants herein
Ramanuj, Lalwa @ Rajmani Mudha, Ramsiya Mudha, Brijwasi @
Dhakad Mudha, Lalua @ Amritlal Mudha, Omprakash @ Ghinha are
entitled to be given the benefit of doubt. Under the circumstances, the
present appeal is allowed. The impugned judgment and order of
conviction passed by the learned Trial Court convicting the appellants
herein for the offence under Section 302 of IPC and Section 148 of IPC
are hereby quashed and set aside and the appellants herein Ramanuj,
Lalwa @ Rajmani Mudha, Ramsiya Mudha, Brijwasi @ Dhakad
Mudha, Lalua @ Amritlal Mudha, Omprakash @ Ghinha are acquitted
of the charges for which they were tried.
26. The appellants herein Ramanuj, Lalwa @ Rajmani Mudha,
Ramsiya Mudha, Brijwasi @ Dhakad Mudha, Lalua @ Amritlal,
Omprakash @ Ghinha be released forthwith, if not required in any other
case.
(Atul Sreedharan) (Sunita Yadav)
Judge Judge
Astha
ASTHA SEN
2021.12.17 14:31:21 +05'30'
