Ram Singh vs The State Of Madhya Pradesh
2021 Latest Caselaw 7689 MP

                                                        Cr.A. No.1905/2010


                                    1
           HIGH COURT OF MADHYA PRADESH
             PRINCIPAL SEAT AT JABALPUR
                  Criminal Appeal No.1905/2010

                        Ram Singh and others.

                                   Vs.

                      The State of Madhya Pradesh


Counsel for the Appellant     : Shri Vijay Kumar Lakhera, Ld. Adv.

Counsel for the Respondent/State :Shri Piyush Bhatnagar, Ld.
                                  Panel Lawyer


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


                            JUDGMENT

(23/11/2021)

Per: Atul Sreedharan, J :

The present appeal has been preferred by the appellants, who

are aggrieved by the order dated 20.09.2010 passed by the learned

VIIIth Additional Sessions Judge, Sagar in Sessions Trial

No.579/2009, convicting the appellants herein of an offence under

Section 302 read with Section 149 of IPC and sentencing them to

undergo rigorous imprisonment for life and fine of Rs.1,000/- with

a default stipulation of additional rigorous imprisonment for three

months. In addition thereto, the appellants have also been

convicted for the offence under Section 147 of IPC and sentenced to

suffer rigorous imprisonment for one year and fine of Rs.500/- with Cr.A. No.1905/2010

default stipulation of additional rigorous imprisonment of one

month.

2. The case of the prosecution in brief is that on 24.08.2009, the

appellants herein are alleged to have taken deceased Prabhu with

them to the cattle shed of the appellant Mangal Singh and

assaulted him, which resulted in his death and threw his body

outside the house of Purushottam Soni.

3. The FIR in this case has been registered on the date of the

incident itself which is 24/08/2009, as Crime No.293/2009, at

Police Station Banda District Sagar. The time of the incident is

shown as 7 A.M. and the FIR has been registered within four

hours, at 11 A.M. The police station is about 7 Kms from the scene

of crime. All the thirteen persons have been named in the FIR. The

scribe of the FIR is PW-3 Bhagwan Singh. Bhagwan Singh in his

statement says that on the date of the incident, he was sitting on

the ground floor of his house, when his daughter-in-law Kalawati

(PW-7), who was at that time, on the terrace of the house, came

down and informed him that deceased-Prabhu has been taken

away by the appellants. He further says that as soon as he received

the said information, he went behind the appellants and the

deceased and from a short distance saw that the deceased was

being taken by the appellants Balram, Boote, Ram Singh and Raju

as also by Ratan Singh, Mangal Singh, Chhattar, Arjun, Mukesh,

Hanumant, puroshottam, Dhan Singh and Halle. It is further

stated by the witness that the appellants herein took him inside the

house of Hanumant. The witness went till the door of Hanumant

and then returned from there. Thereafter, he stood in front of the Cr.A. No.1905/2010

lane of Hanumant's house and thereafter saw that 15-20 minutes

later, Ram Singh, Dhan Singh and Halle carried Prabhu and left

him outside the house of Purushottam Soni. He also says that the

deceased was in a denuded state except for an undergarment.

Upon checking Prabhu, he found out that the deceased has already

died on account of several injuries seen by the witness on the body

of the deceased. In paragraph- 5, he says he went to the Police

Station and gave the report relating to the murder of the deceased

which is Ex.P/1. He also admits his signature in the portion

marked "A to A".

4. Learned counsel for the appellants has drawn our attention to

certain parts of the statement in order to show that the FIR is ante-

dated with specific reference to paragraph No.-23, that the witness

has stated therein that his signature was taken at the police station

in the evening. He also says that he does not know the contents of

the FIR as the police has not read it out for him.

5. Per contra, learned Panel Lawyer for the State has drawn our

attention to the statement of PW-14, who is the Investigating

Officer in this case, with specific reference to paragraph no.1,

wherein this witness says that on 24/08/2009 the complainant

Bhagwan Singh gave an intimation regarding the commission of the

offence, upon which, he had registered the FIR being Ex.P/1. He

also says that the inquest proceeding was also opened at the police

station itself, as inquest proceeding 79/2009. In other words,

learned Panel Lawyer for the State submits that merely because

PW-3 has stated that he has signed the FIR in the evening, does

not make the same ante-dated. He has also stated that as both PW-

Cr.A. No.1905/2010

3 and PW-14 have stated that the report was given in the police

station itself, the signature of PW-3 may have inadvertently been

missed out in the morning, when he had registered the FIR, which

was subsequently taken.

6. Thereafter, our attention has been drawn to the statement of

PW-1, who is Ramkali. She says that on the date of the incident,

she was on the roof of her house when she saw all the thirteen

appellants herein who had the deceased in their custody and had

taken him towards the house of appellant-Hanumant. 15 minutes

thereafter, she says that the deceased was thrown outside the

house of Purushottam Soni. The In-chief of this witness is brief and

concise. By way of contradiction, nothing material has been

brought out by the defence, which could be said to effect the core of

the prosecution's case. PW-1 does not say that she is the eye

witness to the assault but, only saw the deceased being taken by

all the thirteen appellants herein.

7. PW-2 is Sahodra, who is the star witness of the prosecution

and is an eye-witness. She says that on the date of the incident

around 7 A.M, she had gone to answer nature's call and when she

was returning, she heard shouts coming from the house of

Hanumant. She went towards the room from where she heard the

shouts coming and there she saw in the room, the appellants

Boote, Ram Singh, Rajesh, Chhattar, Arjun, Mukesh, Hanumant,

Purushottam, Dhan Singh and Halle assaulting deceased Prabhu.

This witness has excluded the presence or involvement of appellant

No.8, 12 and 13. It is relevant to mention here that appellant No.12

Ratan Singh died during the pendency of this appeal which has Cr.A. No.1905/2010

been confirmed by the verification report of the State which reveals

that he passed away on 14/09/2016. PW-2 further says that when

she went inside the house, she saw co-accused Gulzar (acquitted

by the trial Court) was also present there. She further says that she

did not see any weapons in the hands of the assailants and that

the deceased was being assaulted by kicks and punches. This

witness has withstood the cross-examination and has not been

contradicted on any material particulars. She has neither been

confronted with her 161 statement in order to bring out any

omission.

8. Learned Panel Lawyer for the State has additionally pointed

out to us in paragraph -9 of the PW-2's statement where to a

suggestion by the defence, the witness has answered that it is

correct to suggest that she was the only one, who has seen the

assault and nobody else was there. PW-4 Babita, is the wife of

deceased. She does not appear to be an eye-witness either to the

deceased being taken away by the appellants or to the assault and

has merely alleged that the appellants were responsible for the

death of her husband-Prabhu.

9. Likewise is the statement of PW-5 Chaitu Singh Lodhi, who is

the father of the deceased. PW-6 Veeran is an alleged witness to the

deceased being taken away by the appellants but, has resiled in his

examination-in-chief. However, in the course of cross-examination

by the defence, he says that it is correct to suggest that when he

came out of his house, he saw Purushottam and Gulzar had caught

hold of the deceased and had taken him towards the house of

appellant-Hanumant. Thereafter, he saw a fire arm in the house of Cr.A. No.1905/2010

Hanumant and so out of fear, he went back to his house. In the

cross-examination, it comes out that the involvement of appellant

Purushottam taking the deceased to the house of appellant-

Hanumant is revealed.

10. PW-7 Kalawati, another witness to the deceased being taken

away by the appellants. She says that she saw Boote had caught

hold of Prabhu and Ram Singh had his hand over the mouth of

Prabhu. Dhan Singh had caught hold of legs of Prabhu and Halle

had caught hold of his hands. The appellant Purushottam had

caught hold of the shirt of the deceased and appellant-Hanumant

was standing there along with Ratan, Chhattar, Arjun and Mukesh.

She further says that appellant Mangal Singh was also standing

there holding a firearm.

11. PW-7 has been cross-examined in extenso. The omission that

have been brought out are in paragraph-8 of her statement in

cross-examination, where she says that she was standing on the

roof when she saw the incident, where Ram Singh, Dhan Singh and

Halle after having killed the deceased Prabhu have thrown him

outside the house of Purushottam Soni. She further states that it

is not so that Gulzar and Halle had caught hold of Prabhu and

thrown him outside. She volunteers her statement to the effect that

co-accused Gulzar ( acquitted by the learned trial Court) was not

there but, Halle was amongst those, who had disposed the body of

the deceased. She states that she had stated so in her police

statement Exhibit D/2 that she had not taken the name of Gulzar

along with Halle but, if the same is present in the 161 statement of

police statement, she is unable to explain why. This omission is Cr.A. No.1905/2010

inconsequential as it relates to a co-accused, who has already been

acquitted by the learned trial Court and does not discredit the

involvement of the appellants herein. She also states in paragraph-

12, that when the deceased was being dragged away, the

appellants were not armed with any weapons. In short, learned

counsel for the appellants has tried to impress upon us that the

injuries that were caused to the deceased were not by any weapons

as this witness has stated clearly that the appellants were

unarmed. However, learned counsel for the State in opposition to

the said argument has submitted that the assault had taken place

inside the house to which this witness was not an eye-witness.

Therefore, the weapons that were used had been used inside the

house and on account of that, the same was unknown to PW-7.

12. Learned counsel for the appellant has also relied upon the

statement of the PW-11, who is only a witness to the memorandum

relating to the body which was signed by him. However, learned

counsel for the appellants has taken assistance of the statement of

this witness in paragraph-2 of his cross-examination where, the

witness says that it is correct to suggest that his wife is the

Sarpanch of the village and that when deceased Prabhu was

murdered, his wife was at her parental home and that when the

police had come the village at around 8-9 P.M, till that time, it was

not certain, as to who were the persons, involved in the offence.

Learned counsel for the State in order to counter the said argument

has submitted that this witness was only a signatory to the

memorandum by which the body was taken into custody by the

police. He is neither a witness to the appellants having taken away Cr.A. No.1905/2010

the deceased and nor is he a witness to the assault on the

deceased, which resulted in his death. He further submits that the

witness nowhere states that he had asked PW-1, 2 and 7 about the

incident and received information from them and therefore, the

statement of this witness relied upon by the learned counsel for the

appellants in paragraph-2 of his testimony is irrelevant to the

material aspects of this case, which have been proved through the

testimony of PW-1, 2 and 7.

13. We are in agreement with the learned counsel for the State

that the statement of PW-11 does not go to the root of the

prosecution's case. The post-mortem report is Exhibit P-44 which

has been proved by doctor PW-15. The nature of injuries on the

external surfaces of the body are eight (8) in number. They are all

contusions and abrasions on the posterior aspect of the torso

(shoulder, scapula, left side of the chest, mid back of the left side,

left flank, left elbow and left arm). Besides the said contusions,

there were patterned abrasions. There were also lacerated injuries

on the right thigh on the medial aspect and right elbow on the

flexor aspect and on the left feet. All the lacerated injuries were

skin deep. There were two incised wounds also. One on the right

feet on the medial aspect which was skin deep and another on the

skull on the occipital region on the left side, which was also skin

deep. There were six fractures which were recorded, which were on

the left forearm upper 1/3rd, left forearm lower 1/3rd, left arm

lower 1/3rd, right elbow joint dislocation, right middle finger

fracture on the 1st phalanx and multiple rib fracture bilaterally. All

the injuries are ante-mortem in nature. As far as the internal Cr.A. No.1905/2010

examination is concerned, there was contusion of the occipital

region of the brain. There was laceration/tear present on the

pulmonary vein and the lungs had collapsed. The cause of death is

on account of chest wall trauma due to ante-mortem chest injuries

by hard and blunt object.

14. On appreciation of the evidence recorded in this case, the

statements of PW-1 and 7 clearly reveal that the deceased was in

the custody of the appellants and was taken towards the house of

Mangilal. PW-2, is an eye-witness, who has stated that she has

seen the assault on the deceased, which was by kicks and fists

blows and she has withstood the test of cross-examination also.

However PW-2, has excluded the involvement of appellant No. 8, 12

and 13 and has not attributed any role to them or there presence

inside the house where the deceased was assaulted.

15. Learned counsel for the appellants has also placed the

judgment before this Court of High Court of Hyderabad reported in

2019 CRI, L.J. 86, which is on acquittal on account of delayed

FIR. Upon going through the said case, we find that the factual

aspect itself is different. In Mukkamala Chinna Venkata Reddy

and others Vs. State of A.P , the incident of murder has taken

place at 5:30 P.M. The distance between the scene of offence and

police station was 16 kms. However, in that case, the factual

aspects reveal that the police came to know about the commission

of the offence before 7 P.M but, the FIR was registered after a delay

of more than 5 hours after the police had come to know about the

offence. In this case, the police comes to know about the incident

for the first time when PW-3 goes and reports it in the police Cr.A. No.1905/2010

station itself where it is promptly recorded. The distance between

the place of occurrence and the police station is about 7kms and

therefore, the delay cannot be said to be inordinate which would

shake the case of the prosecution. Under the circumstances, on the

factual aspect itself, we find that the said judgment would not be

applicable in the present case. Besides, delay in registration of the

FIR is not as a rule fatal. It is only where the delay is of such

magnitude that the court suspects that there was previous

deliberation between the witnesses and the police before the

registration of the FIR, that it would hold the FIR itself to be ante-

time and in such a situation, it would certainly affect the outcome

of the prosecution's case. However, in this case, it is not so, as has

been discussed hereinabove.

16. Under the circumstances, the appeal is allowed so far as it

relates to Appellant No.8 Mangal Singh and Appeallant No. 13

Balram, who have been excluded by PW -2, the eye witness. She

has also excluded the appellant no. 12 Ratan Singh. However, as

he is no more, the appeal stands abated against him. Therefore, we

set aside the order passed by the learned trial court, so far as it

relates to appellant No. 8 Mangal Singh and appellant No. 13

Balram and acquit them of the charge under Section 302 read with

Section 149 of IPC. Appellant No. 8-Mangal Singh is on bail. His

bail bonds are discharged. Appellant No. 13-Balram shall be set

forth at liberty, if not wanted in any other case. As regards

appellants Ram Singh, Dhan Singh, Boote, Halle, Purushottam,

Hanumant, Rajesh, Chhattar Singh, Mukesh and Arjun, the appeal

stands dismissed. The appellants are stated to have completed Cr.A. No.1905/2010

more than 12 years of their sentence. The State shall be at liberty

to consider their application for remission, if the State considers it

fit and proper in the facts and circumstances of the case.

17. With the above, this appeal is disposed of.

        (Atul Sreedharan)                                 (Sunita Yadav)
               Judge                                           Judge


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Digitally signed by PARMESHWAR GOPE
Date: 2021.11.25 12:14:18 +05'30'