Madhya Pradesh High Court
Ishwar Singh vs State Of M.P on 31 July, 2021
Author: Vivek Rusia
1 CRA No.807/2007
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
(DIVISION BENCH: HON. MR. JUSTICE VIVEK RUSIA & HON. MR.
JUSTICE SHAILENDRA SHUKLA)
Criminal Appeal No.807/2007
(1) Ishwar Singh S/o Bapu Singh
Aged - 25 years,
(2) Balu Singh S/o Mangu Singh,
Aged - 50 years
(3) Kalu Singh S/o Balu Singh,
Aged - 25 years
All R/o - Village Kataria, Tehsil Mahidpur,
District - Ujjain (M.P.) .... Appellants
Versus
State of Madhya Pradesh
through P.S. Jharda,
District - Ujjain (M.P.) .... Respondent
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Shri Umesh Sharma, learned counsel for the appellants.
Shri Amit Singh Sisodiya, learned Govt. Advocate for the
respondent/State.
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Whether approved for reporting :
JUDGMENT
(Delivered on 31/7/2021)
Per, Shailendra Shukla, J :-
1/ This appeal under Section 374 Cr.P.C. has been preferred
against the judgment dated 7.7.2007 passed by the Addl. Sessions
Judge, Link Court Mahidpur, Camp - Ujjain (M.P.) in S.T. No.294/2005,
whereby the appellants have been convicted and sentenced as under:-
Conviction Sentence Fine Imprisonment in
lieu of payment of
fine amount.
Signature Not VerifiedDigitally signed by
u/S. 366 IPC 5 years R.I.
SAN TRILOK SINGH
u/S. 376(2)(g) IPC Life Imprisonment Rs.5,000/- each 1 year's R.I.
SAVNER
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u/S. 302/34 IPC Life Imprisonment Rs.1,000/- each 1 year's R.I.
2/ Prosecution story, in short, is that on 23.7.2005 Ratan
Singh, brother of the deceased Kamal, arrived at Police Station
Mahidpur and informed that his brother was missing since 21.7.2005
and that he had come to know about a body hanging from a tree, which
has been identified by him as his brother's body. On the basis of this
information, Merg i.e. information related to unnatural death was
recorded and the matter was further handed over to ASI R.D. Vaishnav
(PW-6) for investigation, who arrived at the spot and recorded the
statements of prosecutrix 'X'. He also drew the Panchayatnama of
dead body and drew the spot map and collected various articles from
the spot.
3/ The statements of prosecutrix which have been taken down
are Ex.P/2. The prosecutrix, in her statements, has made allegations
that she knew the deceased Kamal and considered him to be her
brother, that on 21.7.2005 the accused persons had barged inside her
house and they had tied down Kamal (deceased) and the prosecutrix
with rope and after assaulting the prosecutrix, accused had dragged
both of them at about 1 A.M. in the night to a nearby forest besides
Kshipra river and had assaulted Kamal and had later hanged him with
the rope on the branch of a tree and thereafter each of the three
accused persons had taken turns to rape the prosecutrix. She became
unconscious and regained consciousness next day and while coming
back, she met her husband Rai Singh and daughter Sona. They tried to
establish contact on phone with their other known persons, however
the contact could not be established and they came down to Police
Station Jharda.
4/ Shri R.D. Vaishnav (PW-6) after registering the case, made
over the same to Police Station Jharda, in the jurisdiction of which the
incident had taken place, where investigating officer Shri J.S. Bhaskar
(PW-16) conducted rest of the investigation, in which he recorded the
statements of witnesses, sent the prosecutrix for her medical
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SAVNER
examination, proceeded to the spot and collected some incriminating
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articles. He thereafter recorded the memorandum statements of
accused persons, in which they admitted to have murdered Kamal
Singh because of his illicit relations with the prosecutrix, whose
husband was the brother of accused/appellant Balu Singh. The
accused persons were found to be hiding in their respective huts
situated in the agricultural fields and bamboo sticks were recovered
from them which were used for assaulting the deceased and the
prosecutrix. He also recovered broken pieces of bangles from the
house of the prosecutrix. After residual investigation including medical
examination of accused persons, he filed the charge sheet.
5/ The 3rd ASJ, Link Court, Mahidpur on receiving the case
after committal, had framed charges under Section 363, 366, 376(2)(g)
and 302/34 of IPC against all the three accused persons. The accused
abjured the guilt and pleaded for trial.
6/ The prosecution has examined 16 witnesses. The
appellants claimed to have been falsely implicated by the prosecutrix.
They have examined three witnesses in defence, who are the
witnesses of a document executed on stamp paper in which
prosecutrix has purportedly claimed the innocence of appellants.
7/ The appellants were, however, convicted as mentioned in
Para-1 by the trial Court.
8/ In the appeal which has been preferred, it has been stated
that there are no such injuries on prosecutrix which would establish the
offence of committal of rape upon her, no FSL report has been
received, that prosecutrix herself has executed the document
exonerating the appellants, that there are no independent
eyewitnesses, that it would not have been possible for appellants to
assault and drag the prosecutrix and Kamal Singh without being
noticed by neighbours, that report has been lodged very belatedly, that
the important witness Ratan Singh who had found the body of his
brother, has also not been examined, that Bhomsingh to whom the
prosecutrix had narrated the incident, has also not been examined, that
prosecution has miserably failed to prove the case beyond reasonable
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doubt. Hence, it is prayed that the appeal be allowed and the
appellants be acquitted.
9/ The question before this Court is that in view of these
submissions, whether the trial Court's conclusion regarding the
charges having been found proved against the appellant is erroneous
and whether the appellants deserve to be acquitted?
10/ The case is based on eyewitness account of prosecutrix
(PW-2) and other circumstantial evidence. The prosecutrix in her
statements has stated that the deceased was her Rakhi brother and on
the date of the incident at about 12.00 A.M. she had seen the
deceased Kamal Singh and all the three accused consuming liquor
behind her house. Thereafter Kamal Singh was assaulted by the
accused. Subsequently the appellants forcibly entered her house,
dragged her and assaulted her with stick resulting in injuries on her
legs, back and other places. The accused thereafter tied Kamal Singh
with one end of a rope and the prosecutrix from the other end. When
Kamal Singh started shrieking, his face was tied down with a Safa,
then both of them were taken to the slope of the river. As per the
witness, Kamal Singh asked for water to drink which was denied by
accused and they assaulted him with sticks on his stomach and
elsewhere. Kamal Singh then pleaded that if he cannot be given water,
he be done to death. Thereafter the accused tied his hands and
hanged him from a Babool tree and after killing him the accused took
turns in committing rape upon the prosecutrix.
11/ Prosecutrix states that she became unconscious and
gained consciousness at 3 P.M.. As per the prosecutrix, she came to
Kankad concealing herself from being watched and met Bhom Singh,
brother of Kamal Singh. She told Bhom Singh that Kamal Singh's body
was hanging from Babool tree. Threafter she came to her village and
found her husband Rai Singh and daughter Sona looking for her and
narrated the incident to them. She then went to Mangu Singh for
making a call but phone was found to be disfunctional, then they went
to Dhabla at 12 PM but again the phone line was found to be dead.
The witness states that thereafter they went to Jharda police station
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and lodged the report. Report is Ex.P/2. Her signatures are on A to A
part. In the spot map Ex.P/3 also she has appended her signatures.
12/ In her cross-examination, prosecutrix has admitted that
there are houses of other villagers near her house and there should be
as many as 50 to 60 persons, in all, living nearby. The witness states
that the villagers were not called out because it was not expected that
accused would indulge into such assault. Regarding presence of her
husband, she has stated that her husband had gone to attend a Kirtan.
She further states that when accused violently kicked upon the door of
her house, she cried aloud but did not call anybody.
13/ Even assuming that she did not call the neighbours, the
prosecutrix herself has stated that she had cried aloud but no one
came. Regarding the submission that her husband had gone to attend
Kirtan at the time of incident, the prosecution has not examined any
person who had seen her husband attending the Kirtan. Even her
husband Rai Singh has not been examined. In para-8 prosecutrix has
admitted that her husband had lost his mental balance since the time
her daughter was one year old. However, the prosecution has not
substantiated the aforesaid fact. The prosecution story appears to be
that the accused Balu Singh being elder brother of the husband of
prosecutrix, along with other co-accused persons, resorted to honour
killing of Kamal Singh with whom prosecutrix was having illicit relations.
14/ As already seen, despite prosecutrix having stated to have
cried aloud no one from the neighbourhood came or heard her cries.
She even states that after coming back she told no one in the village
about the incident as it had turned dark. However, it has not been
mentioned in the examination-in-chief that she came back to her house
when it had turned dark. She has been confronted with her police
statement (Ex.D/2) but there are not many substantial contradictions
therein. The prosecutrix has been confronted with the document Ex.D/1
which has been proved by defence witnesses Shri Purushottak Kumar
Tiwari (DW-1) who is the stamp vendor, Shri Leela Choudhary (DW-2)
who is the notary and Govardhanlal (DW-3), in which the prosecutrix
has denied the incident. This document is dated 27.9.2006. The
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prosecutrix on being confronted has denied execution of such
document.
15/ As far as Ex.D/1 is concerned, the same carries no
evidentiary value. The Court is only obliged to consider the documents
which form part of the investigation process. Hence, the prosecutrix
cannot be countered and her evidence cannot be sought to be
breached by confronting her with any subsequent submission made by
her. It can be understood that prosecutrix being daughter-in-law of
accused Balu Singh, may have been compelled to execute such
document. The probative value of the evidence available can alone
form the basis of conclusions.
16/ The daughter of prosecutrix Sona (PW-3) is 13 years old.
She has been asked some initial questions in order to determine her
capability of understanding and has been asked question without
administering oath. She has stated that on the night of the incident she
was in her house with her mother (prosecutrix) and they had been
preparing to go to sleep, when accused loudly knocked the door and
rushed in and started assaulting her mother. They thereafter tied her
mother with one end of the rope and Kamal Singh with other end and
when Kamal Singh tried to cry aloud, his mouth was tied up. Witness
states that she started shrieking thereafter. She states that her father
was not present and had gone to Kirtan. She states that she called out
to villagers pleading to help and free her mother and Kamal Singh but
the villagers denied to help her and told her that if they intervene, the
accused would kill them as well. Witness states that she ran to call her
father and on coming back she did not find her mother and Kamal
Singh. She thereafter states that her mother told her and her father at
about 3 PM in the afternoon as to what had happened to her. As per
the witness, her mother told her that she had been raped and beaten
up. This witness also states that her father is not sound mentally. She
admits that Kamal Singh belongs to another village Kantharia and does
not know as to why deceased Kamal Singh was present in her village
on the night of the incident. This witness has been confronted with her
statements, in which she has made no mention of her calling out to the
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villagers and pleading with them. Thus, the evidence of this witness as
far as cry for help and villagers denying to intervene, is not
substantiated. This witness admits that there is previous enmity
between her family and Kalu Singh, however she denies that she is
lying because of such enmity.
17/ A perusal of the evidence of Sona (PW-3) shows that there
is no reason to disbelieve her statements that she was present in her
house when the incident had taken place.
18/ Dr. Nidhi Jain (PW-11) has stated that she had examined
the prosecutrix on 24.7.2005 and found four injuries on her body which
are as follows:-
(i) Abrasion 2x1 inch in healing stage with swelling near ankle
joint, for which x-ray was advised.
(ii) Contusion 6x2 inch on the right thigh, duration within 48 to 72
hours.
(iii) Contusion of the right hip covering whole buttock 8x6 inch
with slight tenderness, for which x-ray was advised.
(iv) Pain in the hand 4 inches below elbow, for which x-ray was
advised.
There were no injuries on breast or private organs. The report is
Ex.P/21. The opinion which was given, was that no conclusion could be
given regarding recent intercourse.
19/ In the cross-examination it has been stated that injuries
were caused within 24 hours because of blue tinge on injuries. In
cross-examination she has reiterated that there was no sign of rape
committed recently upon the prosecutrix. Thus, from the evidence of
Dr. Nidhi Jain (PW-11) forcible sexual intercourse with prosecutrix has
not been affirmed.
20/ Learned counsel for the State has submitted that the injury
on the buttock which was extensive in nature itself shows that
prosecutrix was thrown to the ground and rape was committed upon
her.
21/ This submission was considered.
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22/ If such injury would have occurred due to throwing on the
ground, then similar injury would have been found on left buttock also,
which is not the case here.
23/ Shri J.S. Bhaskar (PW-16) has stated that on receiving
information regarding accused hiding in their huts situated in their
agricultural fields, they were arrested and their memorandum
statements were recorded. Ex.P/14 is the memorandum statement of
Kalu Singh, on the basis of which a bamboo stick was recovered from
his hut vide Ex.P/16. Similarly on the basis of memorandum (Ex.P/15)
of Balu Singh, a bamboo stick was seized as per Ex.P/17. These sticks
and other items were sent to FSL vide (Ex.P/43). However, the FSL
report has not been found to be placed on record. The investigating
officer Shri J.S. Bhaskar (PW-16) has stated that he had found broken
pieces of bangles and prepared a seizure memo of the same vide
Ex.P/38. He has been further asked question whether in the spot map
(Ex.P/3) did he show the presence of broken pieces of bangles. The
witness replies in affirmative, however he admits that the same has not
been mentioned in the spot map. However, it cannot be stated that the
broken pieces of bangles have been implanted by the investigating
officer.
24/ The statement of prosecutrix that she was assaulted with
sticks by the accused, have been supported by her daughter Sona
(PW-3) and injuries by hard and blunt object have been found by
medical specialist PW-11 on various parts of prosecutrix (PW-1) and
broken pieces of bangles have also been found near the house. The
only thorn in the prosecution story is that despite there being
neighbours in the vicinity, none of them had come to the spot. It
appears that the incident had occurred in the dead of night and,
therefore, the cries could not have been heard. As far as the offence of
rape upon the prosecutrix is concerned, it has already been found that
there are no signs of forcible intercourse committed upon her as per
the doctor (PW-11). The accused are father and son and cousin
between themselves and it is not natural that father and son both
would commit rape upon the prosecutrix. The witness J.S. Bhaskar
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(PW-16) has seized the underwear, pubic hair of accused Ishwar Singh
vide Ex.P/44, of Kalu Singh vide Ex.P/45 and Dhoti and public hair of
Balu Singh vide Ex.P/46 and sent the same for FSL examination.
However, the FSL report is not found to be placed on record. Similarly
Dr. Jain (PW-11) has prepared vaginal slides and handed over the
Petticoat of prosecutrix carrying many white spots and these items
have also been sent to FSL but as already stated the report is not
available. As far as the evidence of prosecutrix regarding the sequence
of events which took place after the incident is concerned, there is
some discrepancy. She states that after the incident she met
Bhomsingh, the brother of Kamal Singh, however the aforesaid witness
has not been examined. In fact it was Ratan Singh who had
approached the police station having seen the body of his brother. This
witness has also not been examined. Prosecutrix states that she
narrated the incident to her husband Rai Singh, who has also not been
examined and she states that she did not inform the villagers after
coming back since it had turned dark, whereas her daughter Sona
(PW-3) states that her mother had come in the afternoon at 3 PM and
informed about the incident.
25/ In view of such inconsistencies and further in absence of
doctor's affirmation regarding rape and non availability of FSL report
and also looking to the improbability of father and son committing rape
upon prosecutrix one after the other, who was their relative, leads to
the conclusion that the offence of gang rape could not be proved by
prosecution beyond reasonable doubt. These aspects were not
considered by the trial court. Although the prosecutrix has been found
to have suffered injuries but no charge under Section 323, 325 IPC etc.
have been framed against the appellants. However, it is found proved
that Kamalsingh and prosecutrix were tied with rope and taken across
the river. The offence under Section 363 IPC is established against the
appellants.
26/ Now the question is whether the appellants committed the
murder of Kamal Singh?
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27/ The question now is, whether the deceased Kamal Singh
was murdered by the appellants?
28/ Rakesh Narayan (PW-13) has stated that on 23.07.2005,
while he was posted as Head Constable at Police-Station, Mahidpur,
District-Ujjain (MP), Ratan Singh had arrived and had informed that his
brother Kamal Singh, who had gone missing from 21.07.2005, was
being searched and his body had been found hanging on a tree, based
on which a Merg was registered which is Ex.P/24.
29/ R.D. Vaishnav (PW-6) has stated that on receiving
information on 23.07.2005, he had arrived at the spot and prepared a
body panchnama which is Ex.P/7.
30/ Nasirullah Qureshi (PW-15) has stated that on 23.07.2005
while he was posted as Head Constable in photo Section of Police
Station, Mahidpur and on receiving information from the Police Control
Room, he had arrived at the spot of incident and had clicked the
photographs of deceased Kamal Singh. These photographs are found
to be from Ex.P/26 to Ex.P/36.
31/ A perusal of these photographs placed on record shows
that the deceased Kamal Singh had been hanging with a rope around
his neck from a tree which are visible.
32/ Dr. Mukesh Jain (PW-1) has stated that he had conducted
the postmortem of deceased Kamal Singh S/o Suresh Singh on
23.07.2005. His hands were tied with a nylon rope. The nylon rope was
also tied around his neck. The knot of the rope was adjustable, there
were marks of rope on the throat starting from behind left side of the
ear and posterior side of the neck. The sign of rope on the neck was
measured as 10 inch x ½ inch. The colouration on the aforesaid part
had become deep brown. The corners of the neck were having blood
marks. The signs of rope were also found on left wrist and also on the
right forearm and there was swelling on the neck region, his face had
turned blue. This apart, there were number of injuries on his body
which are as follows:
(i) one lacerated injury ½ x ½ x ½ inch on the fourth finger of left leg.
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(ii) bluish contusion 3x1 inch on the left side of face and the left eye
was found to be swollen.
(iii) the nose was found to be swollen.
(iv) bluish linear injury on the right side of back side 15 x 2 cm and 12
x 2 cm.
(v) bluish contusion 8 x 1.5 cm on the right side of the back.
(vi) bluish contusion 12 x 8 cm on left scapula region.
(vii) bluish contusion 5 x 2 cm on the left side of shoulder.
33/ All the aforesaid injuries were ante-mortem in nature and
were caused by hard and blunt object. On internal examination, it was
found that the breathing tube was found to be congested, right and left
lungs were congested, left chamber of heart was empty and right
chamber contained blood. Liver, spleen and kidney were found to be
congested. The cause of death was found to be asphyxia due to ante-
mortem hanging and the death was homicidal in nature. The report is
Ex.P/1. The witness has stated that the nylon rope which was tied on
hands and on neck were separately sealed and were handed over to
the Police Constable.
34/ Dr. D.K. Satpaty (PW-14) who is the Director of Medico
Legal Institute at Bhopal, had stated that he received the two sealed
packets containing rope in relation to Crime No.117/2005 of Police
Station Jharda. On examination, it was found that the rope contained
four strands and that there was a movable knot on it and in the knot
there was a flock of hair embedded in the same. The one end of the
aforesaid rope had been cut with a sharp object. Another rope also
contained movable knot which was also found to be cut at two ends
with a sharp object. Although the witness had been cross-examined at
length, however there is no substantial point which had been brought
out by the appellants. Hence, it is appropriate that the death of Kamal
Singh was homicidal in nature and he had been hanged while he was
alive and he was also assaulted with sharp and blunt objects. It has
already been found proven that the deceased Kamal Singh had been
tied along with prosecutrix Sarekunwar (PW-2) and had been dragged
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to forest towards river. This conclusion is based on reliable evidence of
prosecutrix (PW-2) as also her daughter Sona (PW-3).
35/ The spot-map (Ex.P/3) shows the spot 'B1' which is the
spot where the body was found to be hanging. It is at a distance of 5.5
kilometres from the house of prosecutrix and number of Babool trees
have been found to be growing over there.
36/ Previously, it has been found proved that the prosecutrix
and the deceased Kamal Singh were tied with rope and dragged
towards the spot. Number of injuries on the prosecutrix have been
found but rape committed upon her has not been established. The
place where the prosecutrix got injured, was her house which is spot
'A1' as per Ex.P/3.
37/ As already discussed earlier, from the memorandum of
accused Kalu Singh and Balu Singh respectively which is Ex.P/14 and
Ex.P/15, bamboo sticks were recovered from each of them as per
seizure memo Ex.P/16 and Ex.P/17. These weapons have been sent
to FSL but the FSL report has not been received regarding the same.
However, even in absence of FSL report, the factum of last seen theory
had been proved against the appellants. It has already been found that
the deceased and the prosecutrix were tied with rope by the appellants
and dragged towards the jungle. The statements of prosecutrix were
recorded immediately on discovery of body of the deceased. Seizure of
weapons on the basis of memorandum had also been proved from the
appellants. The burden was upon the appellants to show as to how the
deceased was found to be hanging from the tree with a rope in the
direction of which the deceased had been dragged by the appellants
after tying him with a rope. This onus has not been discharged by the
appellants. The motive also appears to be proved that the appellants
nurse a grudge against Kamal Singh (deceased) for having illicit
relations with the prosecutrix and it appears that it is a case of honour
killing. No exceptions under Section 300 IPC have been brought forth
during arguments and it appears to be a well thought and pre-planned
act of causing death by assaulting and thereafter hanging the
deceased Kamal Singh on a tree. Hence, offence under Section 302
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IPC stands proved. The trial Court's conclusion in this regard is
affirmed.
38/ In view of the foregoing discussion, as mentioned above,
we are of the considered opinion that the appellants are liable to be
convicted under Sections 363 and 302/34 of IPC, but they stand
acquitted under Sections 366 and 376(2)(g) of IPC. The appeal,
thereby, succeeds in part in respect of the two provisions in which the
appellants have been acquitted. The sentences imposed on appellants
regarding other two provisions proved i.e. Sections 363 and 302/34
IPC are found to be appropriate and are affirmed. All the jail sentences
shall run concurrently.
39/ Let a copy of this judgment along with original record be
sent to the trial Court for compliance.
40/ The disposal of the property shall be as per the order of trial
Court.
(Vivek Rusia) (Shailendra Shukla)
Judge Judge
Trilok/-
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