Madhya Pradesh High Court
Sohan & Another vs State Of M.P. on 24 September, 2021
Author: Shailendra Shukla
1
CRA Nos.849/2008 and 962/2008
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
(DIVISION BENCH: HON. MR. JUSTICE VIVEK RUSIA &
HON. MR. JUSTICE SHAILENDRA SHUKLA)
Case No. CRA No.849/2008 &
CRA No.962/2008
Parties name : CRA No.849/2008
Bhagwan Singh S/o Bherusingh and
others
Versus
State of Madhya Pradesh
&
(CRA No.962/2008)
Sohan Singh S/o Ragunath Singh and
Another
Versus
State of Madhya Pradesh
Date of Judgement : 24.09.2021
Bench constituted of : Hon'ble Shri Justice Vive Rusia
Hon'ble Justice Shailendra Shukla
Judgement delivered by : Hon'ble Justice Shailendra Shukla
Whether approved for reporting : Yes
Name of counsels for the : Shri Virendra Sharma, learned counsel
for the appellants.
parties
Ms. Mamta Shandilya, learned Govt.
Advocate for the non-applicant - State.
Law laid down : *Recording of Dying Declaration by
Investigating Officers- Held-
Regulation No.742 of M.P. Police
Regulation stipulating assessment of
condition of injured by Medical Officer
before recording such dying declaration
needs to be adhered to. Further, it should
also be explained as to why the service
of Magistrate could not be requisitioned
for recording of dying declaration
*Case involves allegations of
committing triple murder- Role of
Investigating Officer found to be
2
CRA Nos.849/2008 and 962/2008
extremely unprofessional, with not only
major lapses but also indications of
actual concocted dying declaration -
Initiation of proceedings under M.P.
Civil Services (Pension) Rules 1976
recommended against Investigating
Officer.
Significant paragraph numbers : 15, 16, 17, 18, 19, 26
(Vivek Rusia) (Shailendra Shukla)
Judge Judge
AMIT
Digitally signed by AMIT KUMAR
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH INDORE, ou=HIGH
COURT OF MADHYA PRADESH BENCH
INDORE, postalCode=452001,
KUMA
st=Madhya Pradesh,
2.5.4.20=18db6b55824fa1834dc7e61d
06ed3c79a81bc156ec0309c5245d47a0
a52604de,
pseudonym=713D9BD68EDDADCD6B
R
88DA2B1BCDCFC0369478F5,
serialNumber=62B9B1A094FCDF2F010
7E91326BC51DC9DCF83F25C9D67245
FE3BCCFD0F2DB67, cn=AMIT KUMAR
Date: 2021.09.24 18:23:52 +05'30'
3
CRA Nos.849/2008 and 962/2008
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
(DIVISION BENCH: HON. MR. JUSTICE VIVEK RUSIA &
HON. MR. JUSTICE SHAILENDRA SHUKLA)
Criminal Appeal No.849 of 2008
1. Bhagwan Singh S/o Bherusingh, Age
55 years
2. Balu Singh S/o Bhagwansingh, Age
22 years
3. Darbar Singh S/o Bherusingh, Age 37
years
4. Roop Singh S/o Bherusingh, Age 36
years
5. Bharat Singh S/o Meharbansingh,
Age 21 years
6. Dharmendra Singh S/o Appellants
Bhagwansingh, Age 20 years
7. Meharban Singh S/o Bherusingh, Age
60 years
All Occupation, Agriculture,
All R/o. Village Brahmmankheda,
P.S. & Tehsil, Mahidpur, District
Ujjain
Versus
1. State of Madhya Pradesh through Respondent
Police Station-HarijanThana, District
Ujjain (M.P.)
&
Criminal Appeal No.962 of 2008
1. Sohan Singh S/o Ragunath Singh,
Age 22 years
2. Ragunath Singh S/o Bhagwansingh,
Age 22 yearsAll Occupation,
Agriculture, Appellants
Both R/o. Village Brahmmankheda,
4
CRA Nos.849/2008 and 962/2008
P.S &
Tehsil, Mahidpur, District Ujjain
Versus
1. State of Madhya Pradesh through Respondent
Police Station-SDOP, Mahidpur,
District Ujjain (M.P.)
Shri Virendra Sharma, learned counsel for the appellants.
Ms. Mamta Shandilya, learned Govt. Advocate on behalf of
respondent/State.
JUDGMENT
( Delivered on 24th September, 2021)
Per Shailendra Shukla, J.
Regard being had to the similitude of the FIR and factual
foundation, these appeals filed on behalf of the appellants were
analogously heard and decided by this common order.
1. These appeals have been filed under Section 374 of Cr.P.C
against the judgment dated 23.07.2008 passed by Special Judge, SC/ST
(P.A.) Act, Ujjain in Special S.T. No.261/2005 whereby the appellants
have been convicted under Section 148, 302/149 (three counts) of IPC
and sentenced to two years of R.I. with Rs.1,000/- fine with default
stipulation of six months of R.I. under Section 148 of IPC for each
count and with life imprisonment and fine of Rs.1,000/- with default
stipulations of six months of R.I. under Section 302/149 IPC for each
count.
2. The prosecution story succinctly speaking is that prior to the
incident dated 11.07.2005, there was a report filed by both the parties
(the appellants and the deceased) against each other on 08.07.2005.
The appellants had lodged the report against the deceased for
committing theft of their buffaloes and the deceased had lodged the
CRA Nos.849/2008 and 962/2008
report alleging assault upon them by the appellant for alleged stolen of
their buffaloes. After lodging the FIR on 08.07.2005, the appellants had
thrown stones at the house of complainant (deceased) in the mid-night
between 10-11.07.2005. Due to this incident, deceased Ramchandra
alongwith his mother Nanibai set out for the police station for lodging
report in the morning of 11.07.2005 at about 7:30 to 8:00 AM. On the
way, they were surrounded by the appellants who were wielding
weapons such as Dhariya, swords and sticks and they started abusing
the deceased threatening him and they started assaulting him with these
weapons. The father of Ramchandra, Kachru, when came to intervene,
he was also assaulted by the appellants. The appellants, thereafter,
dragged Bhagirath (brother of the deceased Ramchandra) from his
house and assaulted him, they brought him up to "Bada" of Jaswant
Singh where, he died. Gattabai, wife of Ramchandra and other villages
arrived at the spot but the appellants threatened that anyone intervening
would be killed as well. Kachru and Bhagirath succumbed to their
injuries on the spot. Telephonic intimation was sent to the Police
Station - Mahidpur Road. The SHO of Police Station Mahidpur Road,
Prahalad Singh Tomar (PW.18) arrived on the spot and he found
Ramchandra to be still alive. He recorded the Dehati Nalichi Ex.P/7 on
the basis of statements made by Ramchandra and then recorded the
dying declaration Ex.P/10 on the spot. Ramchandra was sent to PHC,
Mahidpur Road, but succumbed on the way to hospital. Prahalad
Singh Tomar (PW.18), drew Safeena form and Naksha Panchyatnama
of the bodies of Kachru and Bhagirath and their bodies were sent to the
Civil Hospital for conducting post-mortem. The Safina form of
deceased Ramchandra was drawn in Mahidpur Civil Hospital, his post-
mortem was also got conducted. On the basis of Dehati Nalichi, FIR
CRA Nos.849/2008 and 962/2008
was lodged, investigation was initiated, spot map Ex.P/57 was drawn,
the Patwari drew another map, blood stained soil and plain soil were
seized, the shoes of Ramchandra and Bhagirath were seized from the
spot, some stones were also seized near the spot, blood stained clothes
of the deceased were seized and memo of appellants were recorded
from Ex.P/32 to Ex.P/38, sword was seized from Sohan Singh, Dhariya
(sharp edge weapon) was seized from appellant Roopsingh and from
rest of the appellants, sticks were seized. These seizure memos are
Ex.P/37 to Ex.P/38. The seized items were sent to FSL from where the
report was obtained. After recording the statements of the witnesses
and rest of the investigation, charge-sheet was filed before the JMFC
who committed the matter to the Special Judge, SC/ST (P.A.) Act.
3. Learned Special Judge has framed charges under Section 148
and 302 of IPC and in alternate 302/149 and 506 of IPC and under
Sections 3, 2 and 5 of SC/ST (P.A.) Act. The appellants abjured their
guilt and claimed innocence submitting that they have been falsely
implicated so as to illegally obtain compensation from the State
Government. No defense evidence has been led. The learned trial Court
examined 19 witnesses in all and by the impugned judgment, the trial
Court has acquitted the appellants from Section 506(2) of IPC and
Section 3, 2, 5 of SC/ST (P.A.) Act. The appellants have been
sentenced in the manner as already described.
4. In separate appeals which have been preferred, the appellants
have stated that the learned lower Court was wrong in drawing
unwarranted inferences, the FIR is delayed and dying declaration is not
reliable, the witnesses are not reliable as well and the ocular testimony
does not correspond with the medical testimony, there are serious
material omissions and contradictions in the statements of the
CRA Nos.849/2008 and 962/2008
prosecution witnesses and on these grounds, they have sought to be
acquitted.
5. The question for consideration is whether in view of the
submissions made on behalf of the appellants, the appeals are liable to
be allowed and the appellants are entitled for acquittal?
6. Nanibai (PW.3) is the eye-witness who has stated that she is
mother of Ramchandra and Bhagirath and that Kachru was her
husband. She has stated that the appellant Bhagwan Singh had thrown
stones in the previous night under the influence of liquor. The witness
states that the appellants were nursing doubt against Ramchandra for
having released (stolen) their buffaloes and this was the reason that the
appellants had thrown stones. The witnesses states that she suffered
injuries on her head due to stone pelting. She further states that, she
alongwith Ramchandra set out towards Mahidpur Road Police Station
for lodging the report. Accused Sohan Singh caught hold of
Ramchandra and all other accused persons started assaulting him. The
witness states that Roop Singh, Meharban and Bhagwan Singh were
wielding sharp edge Dhariya, Bharat Singh, Balu were wielding
swords whereas Darbar Singh and Rugnath Singh were wielding sticks.
Due to such assault, Ramchandra suffered injuries on his head, at that
time, the husband of the witness (Kachru), who had gone to attend the
call of nature, arrived and pleaded with folded hands, but the appellants
broke his hands in pieces with swords. The witness thereafter states
that the appellants did not injure anyone else but then immediately
states that Bhagirath had climbed on the terrace of his house, but the
appellants went after him and assaulted him and killed him. The
witness also states that the accused persons had severed the hands and
legs of Kachru and also his head was cut off. She also stated that the
CRA Nos.849/2008 and 962/2008
neck of her son Bhagirath was also cut off. The witness states that after
the incident, she went to make telephone call to the Police Station
Petlawad and when police came, Ramchandra was still alive who
recorded his dying declaration whereas Kachru and Bhagirath were
already dead.
7. This witness thus states that five accused persons were
wielding sharp edge weapons and two others were wielding swords
and rest were assaulting with sticks. However, Investigating Officer,
R.S. Prajapati (PW.15) has stated that only sword has been sized from
the appellants Sohan Singh and one Dhariya has been seized from the
appellant Roopsingh as per their memos whereas sticks were seized
from the other appellants.
8. Further, contrary to the evidence of Nanibai (PW.3) that the
hands of Ramchandra were cut off in pieces with swords by the
appellants and the hands, legs and head of Kachru were also cut off by
the appellants. Dr. Dinesh Chandra Saxena (PW.4), who had conducted
the post-mortem of the deceased has not found any incised wound on
the person of any of the deceased. All the injuries on the person of the
deceased have been found to be lacerated wounds, contusions and
abrasions and has stated that all the injuries were caused by hard and
blunt objects. The Presiding Officers has although stated that some of
the injuries were so serious in nature that bones had come out which
may not occur due to merely lathi blows meaning thereby that such
injuries could have only been caused by more dangerous weapons such
as Dhariya and swords, however, this opinion of Presiding Officer is
not based on any admission on the part of doctor who conducted the
post-mortem examination. The doctor has in fact, not been asked any
such question and therefore, serious discrepancies in the statements of
CRA Nos.849/2008 and 962/2008
Nanibai and the prosecution story regarding wielding of swords and
dhariya by numbers of accused persons and assaulting the deceased
with such danger weapons, is not found to be substantiated.
9. The evidence of Nanibai (PW.3) is also not found to be reliable
as in para no.12 of her cross-examination she admits the suggestions
that she was moving much behind Ramchandra and on hearing the
noise from the spot of incident, which was at a slope, she had gone to
call the Sarpanch and when she came back alongwith Sarpanch, she
had found her husband and son lying there. Due to this discrepancy,
she has again been re-examined and then she again states that the
incident had occurred in her presence only. The Presiding Officer in
para no.26 of the judgment has despite noticing the aforesaid
contradiction, considered the evidence to be reliable stating that the
contradiction in the evidence of witness giving rise to doubt on the
witness is only because of clever cross-examination. One fails to
understand as to what difference would it make whether contradiction
in statement is brought about by clever or otherwise manner of cross-
examination. The contradiction would be the contradiction in any case.
Thus, the evidence of Nanibai (PW.3) is not found to be reliable. Her
statements needs to be corroborated by other piece of evidence.
10. The other corroborative piece of evidence in this matter is
dying declaration of Ramchandra. The witness Pralad Singh Tomar
(PW.18) has stated that on 11.07.2005, while he was posted as SHO at
Police Station Mahidpur Road, he received an intimation on telephone
about the incident and he went to the spot. He found Ramchandra in
injured condition and on the basis of his statements, Dehati Nalishi
Ex.P/60 was recorded. Ramchandra has appended his thumb
impression on Ex.P/60. Thereafter, his dying declaration was recorded
CRA Nos.849/2008 and 962/2008
in the presence of witnesses. As per the witnesses, Ramchandra told
him names of the appellants who had injured him and he also told him
about the weapons with which he had been assaulted and narrated the
reason for which he has been assaulted. As per Ramchandra, the
accused had thrown stones in the night before and had been also
making allegations of committing theft of their buffaloes regarding
which, Ramchandra was going to lodge the report. As per the witness,
his dying declaration is recorded in question answer format and dying
declaration is Ex.P/10 on which the witness appended his signatures
from "A" to "A" part and Ramchandra has appended his thumb
impression.
11. In cross-examination, the witness states that he had gone to the
spot equipped with material for carrying out investigation. He has been
asked as to whether he had taken seal of SHO to the spot or not. He has
been asked which thumb impression of Ramchandra was used for
appending the impression. The witness does not remember this. The
witness in para no.17 of his cross-examination has been asked question
that in Dehati Nalishi, the thumb impression is made with blue ink, but
in dying declaration, the color of ink is different and has been asked
reason for the difference. The witness has stated that due to different
carbon papers, there is a difference in the color of the ink. This would
only mean that the source of ink on the thumb of Ramchandra was not
of Ink pad but of carbon papers. However, in Safina Form and Naksha
Panchnama drawn at the spot, thumb impressions of the witness have
been taken which depicts clearly that ink pad has been used meaning
thereby, that the ink pad was available at the spot and hence, what was
the need to use the carbon papers in respect of Ramchandra and why
two different carbon papers were used, is not explained by the witness.
CRA Nos.849/2008 and 962/2008
The witness has stated that the ink pad was left behind at the police
station. However, that is also not reliable in view of the thumb
impression from ink pad found to be appended on Safina form and
other documents which were drawn at the spot only. Further, although
the time of dying declaration has been shown as at 11:15 AM but it has
not been shown that till what time, the dying declaration was recorded.
Whether Ramchandra was in fit condition to make statements has also
not been stated by way of making such a remark on Ex.P/10. When
such an information had been received in the police station, no effort
was made to contact any doctor or Magistrate requesting him to
accompany the spot. Ex.P/10 (dying declaration) does not bear the
presence of any such doctor or Magistrate. The witness Ishwar Singh
(PW.5) whose signatures are taken on the dying declaration has been
declared hostile and he denies that the dying declaration was recorded
in his presence. Another witness Swaroop (PW.6), who has also a
witness of dying declaration, has also turned hostile. He states that on
the spot, he had seen two persons lying dead and what was done by
T.I., was not known to him. He claims ignorance as to whether T.I. had
taken any statements and also states that the aforesaid statements were
not read over to him.
12. Learned counsel for the State has drawn court's attention to the
last statement in cross-examination made by the witness (PW.6) who
has stated that two persons had been lying dead and the third person
whether was dead or alive, the witness does not know. Learned counsel
for the State submits that the witness straightway denies that
Ramchandra was dead and therefore, the prosecution story that
Ramchandra was alive stands substantiated.
13. The aforesaid submissions of learned counsel for the State
CRA Nos.849/2008 and 962/2008
regarding reliability of evidence of Swaroop (PW.10) does not hold
water as can be seen. Swaroop has denied the recording of any
statement of the deceased in his presence and the statements which he
makes at the end of his deposition, only shows his ignorance as to
whether Ramchandra was alive or not.
14. Thus, the evidence of (PW.18) regarding dying declaration of
Ramchandra is not supported by independent witnesses, there is
already discrepancies found in his statements regarding use of carbon
papers and it has also not been found that there is no remark either of
doctor or any Magistrate on Ex.P/10 that deceased was in a fit
condition to state or to record dying declaration.
15. Following excerpt from Regulation No.742 of M.P. Police
Regulations, is relevant:
"a..........
b........
c...........
If the attendance of a magistrate cannot be secured,
without the risk of such person's death before his statement
can be recorded, the investigating officer will record the dying
declaration in accordance with the following instructions:-
(1) If possible, such person shall be examined by a
medical officer with a view to ascertaining that he is
sufficiently in possession of his reason to make a credible
statement."
The Investigating Officer has not followed the procedural norms
as stipulated in the aforesaid regulation.
16. The Apex Court in the case of Munna Raja & Anr. vs. State of
M.P. AIR 1976 S.C. 2190 has held that where the Investigating Officer
himself recorded the statement of the victim who was in a precarious
condition if services of the Magistrate or doctor were not sought, such a
practice of recording by the Investigating Officer was improper and should
CRA Nos.849/2008 and 962/2008
not be encouraged. Para 11 of aforesaid judgment is relevant which reads as
under :-
"11. ..........But, if the investigating officer thought that Bahadur
Singh was in a precarious condition, he ought to have
requisitioned the services of a Magistrate for recording the
dying declaration. Investigating officers are naturally interested
in the success of the investigation and the practice of the
investigating officer himself recording a dying declaration
during the course of investigation ought not to be encouraged.
We have therefore excluded from our consideration the dying
declaration, Ex. P-2, recorded in the hospital."
17. In Meera vs. State of Rajasthan, AIR 2004 S.C. 1879 it was laid down
that where the Investigating Officer had plenty of time and facility to procure
the services of the Magistrate for recording of a dying declaration, the dying
declaration recorded by the Magistrate should be excluded from
consideration. The relevant para reads as under:
"19.....There is another aspect of the matter for which there is no
explanation. This is not a case where, according to the prosecution,
the poison was administered to the deceased without her knowledge
or suspicious. If one is to believe the dying declaration one fails to
understand why the deceased would have swollen the poison given
by her mother-in-law when she had seen, as claimed by her, that
what was being given to her was poison meant for killing rats. All
these facts create a serious doubt in our mind as to whether the dying
declaration was really recorded in the manner alleged and also as to
the veracity and truthfulness of the said dying declaration. As we
have noticed earlier there is no evidence on record to show that the
relationship between the appellant and the deceased were strained
and not cordial. There is also evidence on record to show that the
deceased had been keeping unwell after child birth and she was
being treated for her ailments. The High Court has observed that
there was no reason for the deceased to commit suicide. Apart from
the fact that a person committing suicide behaves with abnormality,
equally there is no reason for the appellant to commit the murder of
the deceased. That apart, the conduct of the appellant is also not
consistent with the hypothesis of her guilt. If she had really
administered poison to the deceased she would not have
accompanied the deceased to her parents' house at Purada and
thereafter taken her to the hospital at Sumerpur. Admittedly, she was
present all the time and all this only indicate her innocence in the
matter. Looking to the circumstances in which the dying declaration
was recorded by the police officer and not by the Magistrate, and
having regard to the other facts and circumstances of the case, we
are of the view that the prosecution has not proved its case beyond
reasonable doubt, and in any event the appellant is entitled to the
CRA Nos.849/2008 and 962/2008
benefit of doubt."
(emphasis supplied)
18. In the case of Lallubhai Devchand Shah & Ors. vs. The State of
Gujarat, AIR 1972 SC 1776, the Apex Court has laid down in para as under :-
9. ............. A dying declaration must be closely scruitinised as to
its truthfulness like any other important piece of evidence in the light
of the surrounding facts and circumstances of the case, bearing in
mind, on the one hand, that the statement is by a person who has not
been examined in court on oath and, on the other hand, that the dying
men is normally not likely to implicate innocent persons falsely. See
Khushal Rao vs The State of Bombay 1958 SCR p. 552. If the court
is satisfied on a close Scrutiny of the dying declaration that it is
truthful, it is open to the court to convict the accused on its basis
without and independent corroboration. In the present case, we find
that on a close scrutiny of the dying declaration both the courts, after
a detailed consideration of the evidence, have come to the conclusion
that the dying declaration is true. The normal rule so far as this Court
is concerned is that when the High Court accepts a piece of evidence
as true, this Court does not examine the evidence afresh for itself
unless there is substantial error of law or procedure or there is a
failure of justice by reason of misapprehension or mistake in reading
the evidence or the case involves a question of principle of general
importance. See Brahmin Ishwarlal Manilal v. The State of Gujarat
Crl. Appeal No. 120 of 1963 decided on 10-8-1965, and Tapinder
Singh v. State of Punjab and Anr. 1970 (2) SCC p. 133.
19. It is being seen that investigating officers are not adhering to the
precautions contained in Regulation No.742 of M.P. Police Regulations
(supra) and other directions contained in the apex Court judgements before
recording the dying declaration. A copy of this judgment needs to be sent to
DGP, Madhya Pradesh for the purpose of circulating the same to
Superintendent of Police throughout the State, who in turn shall issue suitable
directions to SHOs of Police Stations within their jurisdiction.
20. It can also be seen that Ramchandra whose dying declaration was
claimed to have been recorded had received as many as 24 injuries. Dr.
Dineshchandra Saxena (PW/4) who had conducted the postmortem of
Ramchandra had found the following injuries on his person :-
"(i) Lacerated wound 7 x 2 cm x bone deep on the left side of the
skull.
(ii) Lacerated wound 4 x ½ x 1cm between medial line left side of
the skull.
(iii) Lacerated wound 5 x 2 x bone deep on right side of the skull.
CRA Nos.849/2008 and 962/2008
(iv) Lacerated wound extending from right ear to right side of the
face 5 x ½ x 3 ¼ cm.
(v) Contusion with swelling on right side lower lip 3 x 2 cm.
(vi) Contusion 3 x 2 cm over right upper arm.
(vii) Big contusion 15 x 2 cm extending from right upper arm to
forearm with fracture of humorous and radius ulna bone with
haematoma on the joint of the elbow.
(viii) Lacerated wound 5 x 1 cm x bone deep on the right elbow
joint from where fracture could be seen and felt.
(ix) Lacerated wound 4 x 1 cm x bone deep on right forearm from
which pieces of bone were coming out.
(x) Contusion 5 x 4 cm on right palm.
(xi) Contusion on the left deltoid region 5 x 2 cm with rail
pattern.
(xii) Contusion 5 x 2 cm on the left upper arm on the anterior
aspect.
(xiii) Contusion 8 x 2 cm on the left upper arm on the anterior
aspect.
(xiv) Contusion 6 x 4 cm on the left forearm with swelling. The
bones of left forearm were found to be fractured with presence of
haematoma.
(xv) 3 abrasions with contusion size 8 x 1 cm x 5 x 1 cm and 3 x
1 cm on left forearm.
(xvi) Swelling with contusion on left palm 5 x 4 cm.
(xvii) Contusion below right chest size 8 x 4 cm.
(xviii) Contusion resembling rail pattern size 5 x 4 cm on right
side of the back and 28 x 20 cms on left side of the back.
(xix) Abrasion all over the back 26 x 28 cm on the right side and
28 x 20 cm on the left side of the back.
(xx) Lacerated wound 8 x 3 cm on the left leg resulting in both
tibia and fibula bones coming out of the wound. On opening the
wound it was found that the lower side of the femur bone was
also fractured.
(xxi) Lacerated wound 3 x 1 cm bone deep below knee with both
bones broken along with haematoma.
(xxii) Lacerated wound on the lower side of the left leg 5 in
number sizes 2 x ½ x 1 cm, 1 ½ x ½ x 1 cm, 1 x ½ x 1 cm, 2 x ½
x ½, 1 x ½ x 1 cm.
(xxiii) Lacerated wound on the joint of the knee 7 x 2 cm right leg
fibula and deep bones were seen coming out of. The joint near
knee was dislocated.
(xxiv) Lacerated wound on right leg size 1 ½ x 1 x 1 cm.
(xxv) Abrasion 5 x 1 cm on right leg.
21. As per Dr. Dineshchandra Saxena (PW.4) injury Nos.7, 8, 9, 13,
16, 17, 19, 20 and 22 had fractures. Thus, there were as many as nine
fractures. On internal examination of the skull haematoma was found in injury
CRA Nos.849/2008 and 962/2008
Nos.1, 2 and 3. On internal examination of the chest the sternum bone was
found to contain haematoma and the bones below right chest were found to be
broken and the right lung was found to be lacerated and torn. There was blood
present in the right pleural cavity. The chambers of heart were empty and
water was found in abdomen. The death has occurred as a result of
haemorrhage resulting from the injuries and it was culpable homicide in
nature. As per the witness the report is Ex.P/4. All injuries were antemortem
in nature. With such multiple fractures, collapsed lung, serious injuries on
skull, it cannot be expected that Ramchandra was still in a position to not only
record the statements in Dehatinalishi, but also record his dying declaration
thereafter. The incident had occurred at about 7.30 Am to 8.00 AM and the
dying declaration was recorded 4 hours later. Such a seriously injured person
is most likely to lapse into unconsciousness if not already dead in four hours
duration. Hence, the dying declaration is unreliable.
22. Other eyewitness of the incident is Gatta Bai (PW.16). She is the wife
of deceased Ramchandra. This witness states that at the time of incident she
was standing at her house and she had witnessed the murder. She states that
all accused had assaulted her husband. She states that the accused also
assaulted her father-in-law (Kachru). She also states that her brother-in-law
Bhagirath had climbed on the terrace of the house, but the appellants also
climbed up and cut him down. Her daughter was also injured with the sword.
She denies in her cross examination that all the three of her family members
had died while committing dacoity in a train as a result of train accident and
she also denies that a false case has been foisted against the appellants in
order to claim money. She has been given suggestion that due to
misbehaviour with her she used to stay at her parental house. She denies this
suggestion but then states that earlier she used to stay with her husband only.
This could mean that she in fact used to stay away from her husband. The
witness admits that her mother-in-law had told her to give statement as they
would fetch money if they give statements. She then immediately states that
CRA Nos.849/2008 and 962/2008
her mother-in-law did not told her so. She states that she has received
Rs.1,40,000/- so far which has already been deposited. In para 12 of the cross
examination she states that the spot of the incident is barely 5 steps away from
her house. Then in para 15, she admits that the slope where the incident took
place is 50 feets away from her house. Thus, there are major inconsistencies
in her statements. Thus witness does not appear to be reliable. While the
prosecution story is that her father-in-law Kachru was coming after answering
the call of the nature, but this witness denies so. In para 16 she states that
when incident occurred she was standing out side her house, but immediately
thereafter states that when her husband was assaulted, she came out of the house.
23. As already seen, the aforesaid witness does not inspire confidence.
Another eyewitness namely Nanibai (PW.3) has also been not found to be
reliable. Nanibai (PW.3) has admitted that she was told by the officers that if
they give proper statements then her son would be employed in Government
service, that Collector and S.P. had given her Rs.2.80 lacs in F.D. and
Rs.20,000/- as well. She has been asked regarding the incident of the previous
night when stones were hurled allegedly by the appellant at her house. In para
10 she states that she told nobody in the village about the stones. She has
stated that she had suffered injury due to stones hurled by the appellants, but
there is no MLC of the witness conducted by the police. She admits that there
is a motorcycle and tractor in her house. It is not understandable as to why she
and Ramchandra were going on foot to police station Mahidpur Road, which
is 18 Kms from her village. It is also not understandable as to why Nanibai an
old woman would be accompanying her son on foot for lodging the report.
Nanibai (PW.3) herself states that it takes about half an hour to reach the
police station on motorcycle. One can very well imagine that no person
would go on foot to lodge the report to such far off distance. Why
Ramchandra could not have been accompanied by other male members of the
family, has not been shown. While Gattabai (PW.16) has stated that the place
of the incident was a slope about 50 feets away from her house, Nanibai
CRA Nos.849/2008 and 962/2008
(PW.3) states that the aforesaid slope was 2 to 3 Kms away. Thus, it is certain
that there was no possibility for Gattabai to see the incident from her house.
One also fails to understand as to how Kachru, father of Ramchandra would
go to that far for answering the call of nature as the slope where the incident
took place was 2 to 3 Kms away from his house. Further, if Ramchandra was
intercepted so far from his house, then what was the need for appellants to
rush to his house and assault Bhagirath who was present in his house only.
Further, if 3 persons had been murdered in broad day light then how is it
possible no villagers came to the spot as the incident could not have been
committed without any shouts and yelling etc. The weapons which have been
seized from the appellants have not been sent to the FSL. The I.O. Prahlad
Singh Tomar (PW.18) has not given any explanation as to why the weapons
were not sent to the FSL. The two other deceased were Bhagirath and Kachru.
Bhagirath had suffered 17 injuries and Kachru 14 injuries and number of
fractures were found on various bones of Bhagirath as well as Kachru and
important commonality in the injuries of Bhagirath and Kachru are that injury
No.13 of Bhagirath was in the form of railway track pattern on the left thigh
size 8 x 2 cm and the 11th injury on Kachru was also in the form of rail track
pattern 10 x 2 cm on the left thigh. It has already been seen that 11 th injury
and 18th injury of Ramchandra were also of rail pattern. The 11 th injury was a
contusion on left deltoid region 5 x 2 cm. The 18 th injury was a contusion 5 x
4 cm rail track pattern on his back.
24. Thus all the 3 deceased had injuries resembling rail track pattern
impressions. This probabilizes the suggestion given to Gattabai (PW.16) that
the death was on account of train accident. The suggestion is that the
aforesaid accident occurred when the deceased were trying to commit dacoity
in a train. It can also be seen that the Investigating Officer Prahlad Singh
Tomar (PW.18) when received the information on telephone regarding the
incident, did not care to record the information on any Roznamchasana. There
is no Rawangi Roznamchasana drawn. Hate Singh (PW.1) who has lodged
CRA Nos.849/2008 and 962/2008
FIR on the basis of Dehatinalishi admits in para 5 that there is no mention of
Roznamcha number in the FIR. The witness states in para 5 that there is no
mention as to how the information was received in the police station. He then
states that in Roznamcha the aforesaid information is mentioned but then no
Roznamcha has been exhibited nor placed on record. He denies that Ex.P/1
does not contain the Roznamcha number because no Roznamcha was in fact
written. Despite denying the suggestion the fact remains that no Roznamcha
has been exhibited or placed on record. This lapse raises finger of suspicious
on the Investigating Officer. This Court expresses its displeasure on the
manner of investigation by the Investigating Officer who has left gapping
holes in his investigation. DSP R.S. Prajapati (PW.15) in para 15 of his cross
examination has stated that he has received wireless information regarding the
murder of Dalits and he had been informed that SHO was already present at
the spot. This shows that I.O. Prahlad Singh Tomar (PW.18) is not stating the
truth when he states that he had informed the DSP while proceeding towards
the spot.
25. It has already been seen that Gattabai (PW.16) has been given
suggestion that the deceased were attempting train robbery and were cut down
and died in the train accident. Investigating Officer Prahlad Singh Tomar
(PW.18) has admitted in para 18 that number of criminal offences have been
registered against Ramchandra, Kachru and Bhagirath in police station. The
deceased were thus having criminal antecedents and the police was aware
about their criminal history. It cannot be denied that when they were found to
have died, a false case was foisted upon the appellants against whom the
deceased had lodged police complaint barely the 3 days ago. The role of the
Investigating Officer appears to be highly suspicious. He states in para 20 that
he did not inform the Police Control Room. He states in para 6 and 7 that he
had informed DSP while proceeding towards the spot but does not remember
as to whether such information was given on mobile or from landline. As
already seen, no Roznamchasana was drawn regarding receipt of such
CRA Nos.849/2008 and 962/2008
information in police station. Nanibai (PW.3) states that on seeing the incident
she had gone to call the Sarpanch and police was informed on telephone.
However, Sarpanch has not been examined and Nanibai (PW.3) was not
expected to herself inform the police station. After due consideration of
evidence available on record, we find that neither the eye-witnesses have been
found to be reliable nor the various links in circumstantial evidence have been
found proved in a manner so that a complete chain of circumstantial evidence
pointing out guilt of appellants may be established. Consequently, the
appellants stand acquitted from all the charges i.e. from Section 148 of IPC
and Sections 302/149 (three counts) of IPC. Any fine amount deposited by the
appellants be restored to them. If not required in any other case, they shall be
released from the jail forthwith. Three of the appellants namely Balu Singh,
Roop Singh and Meharban Singh are on bail. Their bail bonds stand
discharged.
26. We have found role of Prahlad Singh Tomar (PW.18) who was
investigation officer to be extremely un-professional. The investigation
carried out not only is replete with major lapses, there are indications of
actually concocted dying declaration. Hence, we recommend initiation of
proceedings against the investigating officer Shri Prahlad Singh Tomar
regarding withholding/reducing his pension under M.P. Civil Services
(Pension) Rules, 1976. A copy be sent to the senior police officer (DGP/IG)
for the purpose.
27. We also express our displeasure over the investigation carried out by
SDOP, Mahidpur R.S. Prajapati (PW.15), who being a senior police officer,
did not get to the root of the matter. Extra caution ought to have been taken in
a case involving three deaths.
28. We further express our regret on inappropriate appreciation of the
evidence by the trial Court, which although noticed serious discrepancies in
the evidence, has however tried to reason out in favour of the prosecution
which has resulted in failure of justice ultimately. As many as 6 out of 9
CRA Nos.849/2008 and 962/2008
appellants have had to remain in jail since 2005 (16 years) so far.
29. The property seized in the matter would be stand disposed of as per
para 37 of the impugned judgment.
30. A copy of this judgment be sent to the trial Court alongwith original
record for compliance.
(Vivek Rusia) (Shailendra Shukla)
Judge Judge
amit
Digitally signed by AMIT KUMAR
DN: c=IN, o=HIGH COURT OF MADHYA
AMIT
PRADESH BENCH INDORE, ou=HIGH
COURT OF MADHYA PRADESH BENCH
INDORE, postalCode=452001,
st=Madhya Pradesh,
2.5.4.20=18db6b55824fa1834dc7e61d0
6ed3c79a81bc156ec0309c5245d47a0a5
KUMAR
2604de,
pseudonym=713D9BD68EDDADCD6B88
DA2B1BCDCFC0369478F5,
serialNumber=62B9B1A094FCDF2F0107
E91326BC51DC9DCF83F25C9D67245FE
3BCCFD0F2DB67, cn=AMIT KUMAR
Date: 2021.09.24 18:24:13 +05'30'
