Balram vs The State Of Madhya Pradesh
2022 Latest Caselaw 294 MP

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                    Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

     HIGH COURT OF MADHYA PRADESH
            GWALIOR BENCH

                   DIVISION BENCH

            G.S. AHLUWALIA
                   &
       DEEPAK KUMAR AGARWAL J.J.

                 Cr.A. No. 5079 of 2019

                   Balram and another

                                Vs.

                         State of M.P.

Shri C.P. Singh Counsel for the Appellant
Shri A.P.S. Tomar Counsel for the State
Shri D.S. Rajawat, Counsel for the complainant

Date of Hearing                : 03-01-2022
Date of Judgment               : 6th /Jan/2022
Approved for Reporting         :

                             Judgment

                         6th- January -2022

Per G.S. Ahluwalia J.

1.

This Criminal Appeal under Section 374 of Cr.P.C. has been

filed against the judgment and sentence dated 4-4-2019 passed by

Additional Sessions Judge, Pichhore, Distt. Shivpuri in S.T. No.

106/2016, by which the appellants have been convicted and sentenced

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

for offence under Section 302/34 of I.P.C. and have been awarded

Life Imprisonment with fine of Rs. 500/- in default 3 months R.I.

2. It is not of place to mention here that FIR was lodged against

four persons and the present appellants namely Balram and Ramjilal

were absconding and were arrested on 5-10-2016 and a separate trial

has been conducted, whereas the remaining two co-accused persons

namely Govind Das and Gudda @ Rameshwar were tried in S.T. No.

106/2009 and by judgment and sentence dated 23-2-2010 passed by

Add. Sessions Judge, Pichhore, Distt. Shivpuri they too have been

convicted for offence under Section 302/34 of IPC and have been

awarded Life Imprisonment and a fine of Rs. 2000/- in default 6

months R.I. Govind Das and Gudda had also filed Cr.A. No. 227 of

2010, which has also been heard along with this Criminal Appeal.

3. Since, the co-accused Govind Das and Gudda @ Rameshwar

were tried separately and evidence was also recorded afresh and in

the light of the judgment passed by the Supreme Court in the case of

A.T. Maydeen and another Vs. The Asstt. Commissioner, Customs

Department decided on 29-10-2021 in Cr.A. No. 1306 of 2021, the

evidence recorded in the trial of the appellants cannot be read either

in favor or against the co-accused Govind Das and Gudda, therefore,

their appeal is being decided by a separate judgment.

4. The prosecution story in short is that on 18-1-2009 at about

11:55, the complainant Krishna Bihari Singh Tomar, came to the

Police Station Bhonti, Distt. Shivpuri along with his injured son who

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

was in an unconscious condition and lodged an F.I.R. that about 10-

11 months back, they had purchased land from the nephews of

appellant no.1-Govind Das and from the said date, the appellants and

co-accused persons were having enmity with the complainant and his

family. It was further alleged that today at about 11:30 A.M., the

complainant was in his field, whereas his son Mohan Singh was

coming to the field. The moment he reached near the field, he was

challenged by the appellants. The appellant no.1 was carrying Lathi,

whereas appellant no.2-Gudda was having Baka. The accused Balram

was having Sword, whereas Ramjilal was having Katar. They asked

Mohan Singh to leave the field. In reply, Mohan Singh stated that

they have purchased the land. On this issue, the appellant no.2-Gudda

caused an injury on the nose of Mohan Singh by Baka, whereas

Balram gave a sword blow on the wrist of left hand. Ramjilal also

gave a Katar blow on the left hand. Appellant no.1-Govind Das

assaulted him by Lathi. His son Mohan Singh was raising alarm and

thereafter he fell down. When the complainant, Radhe and Indrapal

tried to save him, then all the four accused persons ran away.

5. The police immediately sent the injured Mohan Singh to

P.H.C., Manpura, from where the injured was referred to Distt.

Hospital, Shivpuri. The police took the injured Mohan Singh to Distt.

Hospital Shivpuri, where he was declared dead. The police after

recording the statements of witnesses, arrested the co-accused

persons. After completing the investigation, the police filed charge

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

sheet under Sections 302, 294 and 34 of I.P.C. as well as under

Section 25(1-B) of the Arms Act. However, the appellants were

absconding.

6. The appellants were arrested on 5-10-2016 and accordingly,

supplementary charge sheet was filed against them for offence under

Sections 302,307,294,323,34 of I.P.C. as well as under Section 25(1-

B) of Arms Act.

7. The Trial Court by order dated 21-9-2017 framed charges

under Sections 302 of IPC or in the alternative under Section 302/34

of I.P.C.

8. The appellants abjured their guilt and pleaded not guilty.

9. The prosecution examined Indrapal Singh (P.W.1), Krishna

Bihari Singh Tomar (P.W.2), Chillu Rajak (P.W.3), Radhe Prajapati

(P.W. 4), M.K. Gautam (P.W. 5), Dr. P.K. Dubey (P.W.6), Rajendra

Singh (P.W.7), Jitendra (P.W.8), Dharmendra Parihar (P.W.9), Rakesh

Khatik (P.W. 10), Narendra Sharma (P.W.11), Himanshu (P.W. 12),

Rakesh Sharma (P.W.13), and Bahadur Singh (P.W.14).

10. The appellants examined Neeraj Vishwakarma (D.W.1) and

Ramjilal (Appellant No.2) (D.W.2) in their defence.

11. The Trial Court by the impugned judgment and sentence,

convicted the appellants for offence under Section 302/34 of I.P.C.

and sentenced them to undergo Life Imprisonment and a fine of Rs.

500/- in default 3 months R.I.

12. Challenging the judgment and sentence passed by the Court

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

below, it is submitted that since, Rigor mortis had started, therefore,

the death must have taken place much prior to 9 A.M. The F.I.R. is

ante-dated and ante-timed document as requisition for conducting

post-mortem doesnot contain the number of FIR. Similarly, Naksha

Panchayatnama also doesnot contain the number of FIR. Similarly,

the notice issued under Section 175 of Cr.P.C. also doesnot contain

the number of FIR, but on the contrary, it contains Merg Number. It

is further submitted that in fact Rakesh Sharma was conducting the

investigation, and since, the complainant party staged protest

therefore, not only Rakesh Sharma was suspended but new S.H.O.

was posted. It is further submitted that Copy of FIR was sent to the

Magistrate belatedly on the next day. The statements of the witnesses

were recorded belatedly. The prosecution witnesses are not reliable

and there are material variance in their evidence.

13. Per contra, the Counsel for the State has supported the

conviction of the appellants.

14. Heard the learned Counsel for the parties.

15. Before adverting to the facts of the case, this Court would like

to find out as to whether the death of Mohan Singh was homicidal in

nature or not?

16. Challenging the judgment and sentence passed by the Court

below, it is submitted that since, rigor mortis had started, therefore,

the death must have taken place much prior to 9 A.M. The F.I.R. is

ante-dated and ante-timed document as requisition for conducting

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

post-mortem does not contain the number of FIR. Similarly, Naksha

Panchayatnama also does not contain the number of FIR. Similarly,

the notice issued under Section 175 of Cr.P.C. also does not contain

the number of FIR, but on the contrary, it contains Merg Number. It is

further submitted that in fact Rakesh Sharma was conducting the

investigation, and since, the complainant party staged protest

therefore, not only Rakesh Sharma was suspended but new S.H.O.

was posted. It is further submitted that Copy of FIR was sent to the

Magistrate belatedly on the next day. The statements of the witnesses

were recorded belatedly. The prosecution witnesses are not reliable

and there are material variance in their evidence.

17. Per contra, the Counsel for the State has supported the

conviction of the appellants.

18. Heard the learned Counsel for the parties.

19. Before adverting to the facts of the case, this Court

would like to find out as to whether the death of Mohan Singh was

homicidal in nature or not?

20. Dr. P.K. Dubey (P.W.6) has conducted Post-mortem of

the dead body of Mohan Singh and found following injuries on his

body :

(i) Incised wound 13.5 cm x 3 cm x 3 cm obliquely placed extend 4 cm in front of upper side of Left tragus of ear passing through left eyebrow, upper lid, upper part of nose extending to ride side nose with all tissues cut, bone cut orbital margin & hanging down, nasal bones cut with septum. Clotted blood and filled in nasal cavity. Eye ball hanging down.

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

(ii) Incised wound 11 cm x 3 cm x cut bone coming out placed obliquely on lower part of posterior left forearm and medial side of wrist with muscles, vessels, nerve under the injury lower end of ulna fully cut clotted blood present.

(iii) Incised wound 3 x 1 cm x 1 cm on upper and lateral part of left (illegible) lower, upper part of Patella cut under the injury clotted blood present.

(iv) Abrasion 5.5 cm x 1/3 cm over exterior side of neck transversely placed.

(v) Incised wound 10cm x 3.5 cm x brain deep placed transversely of mid of both parietal margin of head.

On internal examination Injury no.(v) underneath the injury both parietal bone cut margin clean cut 8 cm long, margins, vessels cut, both parietal lob of brain cut 5.5 cm x 1 cm x 1 cm size clotted blood present underneath the cut bone. All injuries were ante-mortem in nature. Injury nos.1,2,3 and 5 caused by sharp heavy object and injury no.4 caused by hard and blunt object. Injuries are sufficient to cause death.

In my opinion, the cause of death is shock and hemorrhage as a result of multiple injury over body.

Homicidal in nature Duration of death - Within 3 to 12 hours since the time of P.M.

The post-mortem report is Ex. P.14.

21. This witness was cross-examined. In cross-examination, only

few questions were put. This witness stated that the deceased was

brought by Himanshu, Police Constable and information was given to

Police outpost Hospital. The post-mortem started at 3:45 P.M. The

deceased was brought in dead condition. He admitted that Bhonti

falls within the jurisdiction of PHC Manpura, but this witness was

unable to say as to whether the deceased was taken to PHC Manpura

or not? He denied that the injuries could have been sustained due to

colliding with iron sheet. Except injury no. 4, all other injuries were

clear. He denied that the injuries could not have been caused by

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

sword and Katar.

22. Thus, it is clear that the death of deceased Mohan Singh was

homicidal in nature.

23. The next question for consideration is that whether the

appellants had caused any injury to the deceased Mohan Singh or

not?

24. It is not out of place to mention here that since, the co-accused

Govind Das and Gudda @ Rameshwar were already tried in a

separate trial, therefore, the original documents are in the said case,

and the prosecution documents were proved in the present case after

comparing with original documents and were marked as exhibit C.

25. Krishna Bihari Singh Tomar (P.W. 2) has stated that he had

purchased the land belonging to Nephews of Govind Das and from

thereafter, the appellants were having personal grudge against him.

The incident took place on 18-1-2009 at about 11:30 A.M. He was in

his field whereas the deceased Mohan Singh was coming from his

house. He met with Govind Das, Balram, Gudda and Ramjilal on the

way. Gudda was having Baka whereas Ramjilal was having Katar,

Balram was having sword and Govind Das was having lathi. They

started abusing the deceased and asked him to return the land. When

the deceased Mohan Singh replied that he has purchased the land

then Gudda assaulted him by Baka on his left eye. Balram assaulted

by a sword on his left wrist. Ramjilal also assaulted him by Katar on

the left hand. Govind Das assaulted him by lathis. His son was

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

shouting and thereafter he fell down on the earth. This witness,

Chillu Dhobi, and Rakesh interfered in the matter. This witness

thereafter took his injured son to Police Station Bhonti and lodged

FIR, Ex. P.4C and the original copy of FIR, Ex. P.4 is attached in the

record of S.T. No. 106/2009. Thereafter, his son was sent to PHC

Manpura, from where he was referred to Distt.Hospital Shivpuri.

The injured was declared dead by the Doctors. Accordingly, a notice,

Ex. P.5C was issued by police outpost Hospital. Naksha

Panchayatnama, Ex. P.6C was prepared. His statements were

recorded. This witness was cross examined.

In cross-examination, this witness stated that his well was 50-

60 ft.s away from the place of incident. His well has a fencing. The

road goes to the wells of Gautam Sharma, Ashok Kumar Gupta and

Khadi Wale. The deceased was coming on cycle. The appellants had

waylaid the deceased on the public way. He was all alone on his

well. The place of incident is about ½ Kms away from his house. He

denied that he reached on the spot after the incident was over. He

clarified that he reached on the spot immediately after the first injury

was caused. He tried to intervene but he was alone and the assailants

were four in number. He further clarified that when other persons

also reached on the spot, then the assailants run away. He brought

his son to the police station on his shoulder with the help of other

people. He reached to the police station within 10-15 minutes. His

son was unconscious at the time of lodging of FIR. He went to PHC

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

Manpura on the police vehicle. His son was declared dead

immediately after they reached Distt. Hospital. The post-mortem was

done in Distt. Hospital Shivpuri itself. He had mentioned the names

of the persons who had come to intervene. He denied for want of

knowledge that the wife of the appellant Balram had filed a

complaint for offence under Section 376 of IPC against Mohan

Singh, Ramgopal and Suresh Singh. He denied that on registration of

complaint, this witness and others had surrounded the police station.

He denied that they had a struggle with the police. He denied that

they were disbursed by the police. He denied that his son fell down

from the motor cycle during said action by police. He denied that his

son had dashed against the steel board. He denied that any case

concerning land was going on in SDO Court. He denied that

Balram and Ramjilal are residing at some other place. He on his own

claimed that they reside in Bhonti itself. He denied that he has

falsely implicated the appellants Balram and Ramjilal. He also

denied that false case has been lodged in order to get over the case

registered under Section 376 of IPC.

26. Chillu Rajak (P.W. 3) has also supported the prosecution story.

In cross examination, this witness stated that he and Rakesh were

coming back from their field. When they reached on the spot, the

appellants and the victim were there. He admitted that after hearing

the screaming, he went to the spot. He also admitted that the injured

was already beaten, but he denied that he has not seen the incident of

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

assault. Radhe, Krishna Bihari and Indrapal reached on the spot after

5-10 minutes of the incident. The appellants were on their feet and

similarly, the deceased was also coming by walking. The field of

Krishna Bihari is 50-60 ft.s away from the place of incident and has

no fencing. He denied that the field of Krishna Bihari is 1 Km away

from the place of incident. He denied for want of knowledge about

the complaint filed by the wife of Balram for offence under Section

376 of IPC. He denied for want of knowledge that Police Station was

surrounded and the mob was disbursed by the police. He denied that

the deceased sustained injuries as he had dashed against the steel

Board.

27. Radhe Prajapati (P.W.4) has also supported the prosecution

story. He too was cross-examined.

In cross-examination, this witness stated that Krishna Bihari,

Chillu, Rakesh etc. were present on the spot. He stated that he had

not seen the assault.

28. Rajendra Singh (P.W.7) is a witness of Lash Panchnama,

Ex.P.6C. In cross-examination, this witness has stated that the notice

was given by the police at about 9 A.M.

29. Rakesh Khatik (P.W.10) has also narrated the same theory.

However, in cross-examination, this witness has stated that the

deceased was coming on a motor cycle. He further stated that the

deceased had reached his field. He denied that he had not seen

anybody assaulting the deceased.

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

30. M.K. Gautam (P.W. 5) had arrested the appellants vide arrest

memo Ex. P.7 and P.8. The memorandum of Balram, Ex. P.9 was

recorded. Similarly the memorandum of Ramjilal, Ex. P.10 was

recorded. Accordingly, one sword was seized from Balram vide

seizure memo Ex. P.11. Article A is the same sword. Similarly, one

iron Katar was seized from the possession of Ramjilal vide seizure

memo Ex. P.12 and Article B is the same Katar. The seized articles

were sent to R.F.S.L. Gwalior along with memo. This witness was

cross-examined.

In cross-examination, he stated that the case diary was pending

for the arrest of the appellants since long. Both the appellants were

arrested from their house situated in Nai Basti, Jhansi. Both the

appellants were together.

31. Jitendra (P.W. 8) who was the witness of arrest, memorandum

and seizure, has turned hostile.

32. Dharmendra Parihar (P.W. 9) is the witness of arrest,

memorandum and seizure. This witness has stated that the appellants

were arrested vide arrest memo Ex. P.7 and Ex P.8. The

memorandum of Balram, Ex. 9 and memorandum of Ramjilal, Ex.

P.10 were recorded. Sword was seized from Balram vide seizure

memo, Ex. P.11 and Katar was seized from the possession of

Ramjilal, Ex. P. 12. This witness was cross-examined.

In cross-examination, this witness stated that the appellants

were the residents of his locality. He further stated that after the

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

incident, the appellants had shifted to some other place.

33. Narendra Sharma (P.W. 11) stated that on 22-1-2009, he was

posted as S.H.O., Police Station Bhonti. After submitting his joining,

he added offence under Section 302 of I.P.C.. He recorded the

statements of Krishna Bihari on 26-1-2009, Chillu on 3-2-2009 and

Rakesh Khatik on 22-2-2009. He had sent the seized articles to

R.F.S.L. Sagar vide memo Ex. P.21. This witness was cross-

examined.

On cross-examination, this witness stated that it is true that the

police station was surrounded by the mob. However, he further

stated that he was not posted in the police station at that time.

34. Himanshu Chaturvedi (P.W. 12) is a police constable. He has

stated that on 18-1-2009, he was posted in Police Station Bhonti. On

the said date, he earlier took the injured/deceased to Primary Health

Centre, Manpura, from where the Doctor referred the injured to Distt.

Hospital, Shivpuri. Thereafter, he took the injured along with referral

letter to District Hospital Shivpuri where the deceased Mohan Singh

was declared dead. The cloths of the deceased were handed over to

him by District Hospital Shivpuri in sealed condition and he handed

over the sealed packet along with specimen of seal to Bahadur Singh

Raghuvanshi who seized the same vide seizure memo Ex. P.15. The

original seizure memo is Ex. P.3 which is annexed in Trial No.106/09.

He went to P.H.C., Manpura along with M.L.C. requisition. The

Distt. Hosptial Shivpuri had handed over merg report no.4/09, P.M.

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

report and referral letter. Bahadur Singh Raghuvanshi, lodged merg

no. 2/09 under Section 174 of Cr.P.C. at Police Station Bhonti The

police outpost, Shivpuri Hospital had also given the requisition given

by Distt. Hospital. This witness was cross-examined.

In cross-examination, this witness denied that no treatment was

given to Mohan Singh by Doctor posted in P.H.C., Manpura, He also

denied that merely an OPD slip was given. He was unable to explain

as to where the deceased Mohan Singh expired, but stated that he was

declared dead in District Hospital Shivpuri. He denied that he had

not taken the deceased Mohan Singh to the hospital.

35. Rakesh Sharma (P.W.13) had partially investigated the matter.

He stated that he prepared the spot map, Ex. P.2C on the instructions

of Indrapal Singh. The blood stained and plain earth were seized vide

seizure memo Ex. P. 3C. The statement of Indrapal Singh was

recorded on the same day. On 19-1-2009, he had arrested Gudda vide

arrest memo Ex. P.14C. His confessional statement, Ex. P.15C was

recorded and Baka was arrested vide seizure memo Ex. P. 16C.

Article B is the same baka which was seized from the possession of

Gudda. This witness was cross-examined.

In cross-examination, this witness could not disclose that who

had gone to the place of incident, along with him. When he reached

on the spot, he had met with certain persons, but could not name

them. He denied that he had not gone to the spot. He denied that

under the pressure of Krishna Bihari Singh Tomar, the entire

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

proceedings were done in the police station.

36. Bahadur Singh Raghuvanshi (P.W. 14) is the scriber of F.I.R.,

Ex. P. 4C.

In cross-examination, he failed to disclose as to whether crime

under Section 376 of IPC was registered against Mohan Singh,

Ramgopal and Suresh Singh or not. He denied for want of

knowledge that any application was given regarding encroachment

over land by Krishna Bihari. He admitted that on 18-1-2009, the

police station was surrounded by the mob and damage was also

caused. He explained on his own that the police station was

surrounded and some police personals were beaten. He further stated

that police force was called from Shivpuri. However, he denied that

the deceased Mohan Singh sustained injury as he had dashed against

a steel board. Krishna Bihari and the injured both had come for

lodging FIR. However, Mohan Singh was unconscious. Verbal

report was lodged by Krishna Bihari Singh Tomar.

37. The appellants examined Neeraj Vishwakarma (D.W.1) in their

defence and appellant Ramjilal (D.W. 2) also examined himself under

Section 315 of Cr.P.C.

38. Neeraj Vishwakarma (D.W.1) has stated that the appellants are

residing in village Simrawari, Ambedkar Nagar, Babina, Distt. Jhansi

along with their family. The appellants reside in their personal

residence. In cross-examination, this witness admitted that he has

been brought by the family members of the appellants. The names of

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

appellants are also mentioned in the Voter list of village Simrawari.

However, admitted that he has not brought the Voter list but has

brought their Adhar Card.

39. Ramjilal (D.W.2) has stated that he and his Balram are residing

in village Simrawari Distt. Jhansi for the last 15 years. They were not

involved in the incident which took place on 18-1-2009. The Adhar

Card of this witness is Ex. D.1 and its photo copy is Ex. D.1C,

whereas the Adhar Card of Balram is Ex. D.2 and its photocopy is Ex.

D.2C.

In cross-examination, this witness denied that at the time of

incident, he was residing in village Bhonti along with his father and

brother. He stated that he had shifted to village Simrawari in the year

2006. He is a labourer by profession. He denied that he has no house

in village Simrawari but admitted that he has not filed any document

of his house.

40. So far as the defence evidence led by the appellants is

concerned, Neeraj Vishwakarma (D.W.1) has said that the names of

appellants Balram and Ramjilal are mentioned in the voter list, but

the voter list has not been produced. Similarly, no document has been

filed to show that the appellants are having any personal residence in

village Simrawari. So far as the Adhar Card, Ex. D.1C and D.2C are

concerned, the date of issuance of those cards is not mentioned.

Thus, it is not clear that whether those cards were issued prior to the

date of incident or subsequent to the incident.

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

41. Thus, the appellants have failed to prove that they had already

shifted to village Simrawari, Distt. Jhansi much prior to the date of

incident and were not residing in village Bhonti. On the contrary,

Dharmendra Kirar (P.W. 9) has stated that the appellants had shifted

out of village Bhonti after the date of incident.

42. The evidence of Dharmendra Kirar (P.W. 9) regarding

subsequent shifting of appellants appears to be correct, because they

were absconding and could be arrested only after 7 long years.

43. It is submitted by the Counsel for the appellants, that it appears

that after the incident, an agitation took place in the police station

and accordingly, Rakesh Sharma (P.W. 13) who was the then S.H.O.,

Police Station Bhonti was placed under suspension. Thereafter,

Narendra Sharma (P.W. 11) had done tainted investigation under the

political influence.

44. Considered the submissions of the Counsel for the appellants.

Accordingly to Rakesh Sharma (P.W. 13) he had recorded the

statement of Indrapal Singh on 18-1-2009 itself. Since, Indrapal

Singh had turned hostile, therefore, his statement recorded under

Section 161 of CrPC was marked as Ex. P1. The contents of Ex. P.1

and FIR, Ex. P.4C are same. Further more, Mohan Singh was

declared dead on 18-1-2009 itself, but it appears that Rakesh Sharma

(P.W.14) did not add Section 302 of IPC. It also appears that no

proper investigation was being done by Rakesh Sharma (P.W. 13) and

therefore, there was an agitation and accordingly to appellants

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

Rakesh Sharma was also suspended. Further, it is clear from the

police statement of Indrapal Singh, Ex. P.1, that it bears the

signatures of Radhe, Chillu, Krishna Bihari and Indrapal. Since, this

statement bears the signatures of the witnesses, therefore, the

contents of this statement would be hit by Section 162 of Cr.P.C., but

one thing is clear that all the eye-witnesses namely Radhe, Chillu,

Indrapal and Krishna Bihari were available, but the statements of

Radhe, Chillu and Krishna Bihari Singh Tomar were not recorded.

Thus, it appears that there was some deliberate omissions by Rakesh

Sharma (P.W. 13).

45. So far as the question of sending a copy of FIR to the Court of

JMFC Pichhore is concerned, it is submitted by the Counsel for the

appellants the said copy was dispatched on 18-1-2009 itself which

was received by the Court on 19-1-2009. Thus, there is a delay in

dispatching the copy of FIR. Now the next question is that whether

there was any delay in sending the copy of FIR to the Magistrate or

not?

46. It is the defence of the appellants themselves that in the

evening of 18-1-2009, the police station was surrounded and there

was agitation and therefore, Rakesh Sharma (P.W.13), the then

S.H.O., Police Station Bhonti was placed under suspension. Some

police personals were also beaten. Thus, it appears that there was a

ruckus in the police station in the evening of 18-1-2009. It is the

case of the appellants, that the police station was surrounded due to

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

the incident in question, but no family member was made an accused

in crime no.18/2009. Thus, it is not clear as to whether the agitation

was on account of incident in question or for different reason. Even

if it is presumed that the agitation took place due to the incident in

question, then still it is clear that there was some lapses in the

investigation by Rakesh Sharma (P.W. 13) because inspite of the fact

that Mohan Singh had expired, the offence under Section 302 of IPC

was not added and it was subsequently added by Narendra Sharma

(P.W. 11) after joining as S.H.O., Police Station Bhonti on 22-1-

2009. Further more, Rakesh Sharma (P.W. 13) did not record the

statement of complainant Krishna Bihari Singh Tomar also.

Although, Rakesh Sharma (P.W. 13) had recorded the statement of

Indrapal Singh, Ex. P.1 on 18-1-2009 and it also bears the signatures

of Radhe, Chillu, Indrapal and Krishna Bihari, which clearly shows

that the witnesses were available. Under these circumstances, when

there was ruckus in the police station, therefore, if the copy of FIR

could not be immediately sent to concerning Magistrate on 18-1-

2009, but it was received on 19-1-2009, it cannot be said that there

was any delay in dispatch of copy of FIR. Further more, if the FIR

has been found to be promptly lodged, then delay in sending the FIR

cannot give any dent to the prosecution story. The Supreme Court in

the case of Pala Singh v. State of Punjab, reported in (1972) 2 SCC

640 has held as under :

8. Shri Kohli strongly criticised the fact that the occurrence

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

report contemplated by Section 157 CrPC was sent to the Magistrate concerned very late. Indeed, this challenge, like the argument of interpolation and belated despatch of the inquest report, was developed for the purpose of showing that the investigation was not just, fair and forthright and, therefore, the prosecution case must be looked at with great suspicion. This argument is also unacceptable. No doubt, the report reached the Magistrate at about 6 p.m. Section 157 CrPC requires such report to be sent forthwith by the police officer concerned to a Magistrate empowered to take cognizance of such offence. This is really designed to keep the Magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under Section 159. But when we find in this case that the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to our notice, then, however improper or objectionable the delayed receipt of the report by the Magistrate concerned it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable. It is not the appellant's case that they have been prejudiced by this delay.

47. The Supreme Court in the case of Mahmood v. State of U.P.,

reported in (2007) 14 SCC 16 has held as under :

10. This Court while construing Section 157 of the Code of Criminal Procedure in Anil Rai v. State of Bihar observed that: (SCC p. 335, para 20) "20. [The said provision] is designed to keep the Magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under Section 159 of the Code of Criminal Procedure. But where the FIR is shown to have actually been recorded without delay and investigation started on the basis of the FIR, the delay in sending the copy of the report to the Magistrate cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable."

11. This Court further took the view that the delay contemplated under Section 157 of the Code for doubting the authenticity of FIR is not every delay but only extraordinary and unexplained delay. We do not propose to burden this short judgment of ours with various authoritative pronouncements on the subject since the law is

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

so well settled that delay in dispatch of FIR by itself is not a circumstance which can throw out the prosecution case in its entirety, particularly in cases where the prosecution provides cogent and reasonable explanation for the delay in dispatch of FIR.

12. The same principle has been reiterated by this Court in Alla China Apparao v. State of A.P. wherein this Court while construing the expression "forthwith" in Section 157(1) of the Code of Criminal Procedure observed that: (SCC pp. 445-46, para 9) "9. ... it is a matter of common experience that there has been tremendous rise in crime resulting in enormous volume of work, but increase in the police force has not been made in the same proportion. In view of the aforesaid factors, the expression 'forthwith' within the meaning of Section 157(1) obviously cannot mean that the prosecution is required to explain every hour's delay in sending the first information report to the Magistrate, of course, the same has to be sent with reasonable dispatch, which would obviously mean within a reasonably possible time in the circumstances prevailing. Therefore, in our view, the first information report was sent to the Magistrate with reasonable promptitude and no delay at all was caused in forwarding the same to the Magistrate. In any view of the matter, even if the Magistrate's Court was close by and the first information report reached him within six hours from the time of its lodgement, in view of the increase in workload, we have no hesitation in saying that even in such a case it cannot be said that there was any delay at all in forwarding the first information report to the Magistrate."

13. It is not possible to lay down any universal rule as to within what time the special report is required to be dispatched by the Station House Officer after recording FIR. Each case turns on its own facts.

48. The Supreme Court in the case of Jafel Biswas v. State of

W.B., reported in (2019) 12 SCC 560 has held as under :

16. The purpose and scope of Section 157 CrPC has time and again been considered by this Court in large number of cases.

17. The learned counsel for the appellant has relied on State of Rajasthan v. Daud Khan, Sheo Shankar Singh v. State of U.P. and Bijoy Singh v. State of Bihar.

18. In State of Rajasthan in paras 27 and 28, this Court has laid down as follows: (SCC pp. 620-21)

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

"27. The delay in sending the special report was also the subject of discussion in a recent decision being Sheo Shankar Singh v. State of U.P. wherein it was held that before such a contention is countenanced, the accused must show prejudice having been caused by the delayed dispatch of the FIR to the Magistrate. It was held, relying upon several earlier decisions as follows: (SCC pp. 549-50, paras 30-31) '30. One other submission made on behalf of the appellants was that in the absence of any proof of forwarding the FIR copy to the jurisdiction Magistrate, violation of Section 157 CrPC has crept in and thereby, the very registration of the FIR becomes doubtful. The said submission will have to be rejected, inasmuch as the FIR placed before the Court discloses that the same was reported at 4.00 p.m. on 13-6- 1979 and was forwarded on the very next day viz. 14-6- 1979. Further, a perusal of the impugned judgments of the High Court as well as of the trial court discloses that no case of any prejudice was shown nor even raised on behalf of the appellants based on alleged violation of Section 157 CrPC. Time and again, this Court has held that unless serious prejudice was demonstrated to have been suffered as against the accused, mere delay in sending the FIR to the Magistrate by itself will not have any deteriorating (sic) effect on the case of the prosecution. Therefore, the said submission made on behalf of the appellants cannot be sustained.

31. In this context, we would like to refer to a recent decision of this Court in Sandeep v. State of U.P. wherein the said position has been explained as under in paras 62- 63: (SCC p. 132) "62. It was also feebly contended on behalf of the appellants that the express report was not forwarded to the Magistrate as stipulated under Section 157 CrPC instantaneously. According to the learned counsel FIR which was initially registered on 17-11-2004 was given a number on 19-11- 2004 as FIR No. 116 of 2004 and it was altered on 20-11- 2004 and was forwarded only on 25-11-2004 to the Magistrate. As far as the said contention is concerned, we only wish to refer to the reported decision of this Court in Pala Singh v. State of Punjab wherein this Court has clearly held that (SCC p. 645, para 8) where the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the court then, however improper or objectionable the delay in receipt of the report by the Magistrate concerned be, in the absence of any prejudice to

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.

63. Applying the above ratio in Pala Singh to the case on hand, while pointing out the delay in the forwarding of the FIR to the Magistrate, no prejudice was said to have been caused to the appellants by virtue of the said delay. As far as the commencement of the investigation is concerned, our earlier detailed discussion discloses that there was no dearth in that aspect. In such circumstances we do not find any infirmity in the case of the prosecution on that score. In fact the above decision was subsequently followed in Sarwan Singh v. State of Punjab, Anil Rai v. State of Bihar and Aqeel Ahmad v. State of U.P."'

28. It is no doubt true that one of the external checks against antedating or ante-timing an FIR is the time of its dispatch to the Magistrate or its receipt by the Magistrate. The dispatch of a copy of the FIR "forthwith" ensures that there is no manipulation or interpolation in the FIR. If the prosecution is asked to give an explanation for the delay in the dispatch of a copy of the FIR, it ought to do so. However, if the court is convinced of the prosecution version's truthfulness and trustworthiness of the witnesses, the absence of an explanation may not be regarded as detrimental to the prosecution case. It would depend on the facts and circumstances of the case."

19. The obligation is on the IO to communicate the report to the Magistrate. The obligation cast on the IO is an obligation of a public duty. But it has been held by this Court that in the event the report is submitted with delay or due to any lapse, the trial shall not be affected. The delay in submitting the report is always taken as a ground to challenge the veracity of the FIR and the day and time of the lodging of the FIR.

49. So far as the submission made by the Counsel for the

appellants regarding time of death is concerned, it is the stand of the

Counsel for the appellants, that since, rigor mortis had already started

at the time of post-mortem, therefore, it is clear that the death did not

take place 3 hours prior to the post-mortem.

50. Considered the submissions made by the Counsel for the

appellants.

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

51. The incident is alleged to have taken place at 11-11:30 A.M.,

whereas the Post-mortem started at 3:35 P.M. According to the post-

mortem report, Ex. P. 14, the duration of death was 3 hours to 12

hours. If the incident took place at 11-11:30 A.M., then it is clear that

the post-mortem was conducted after 4 hours of incident. No

question was put to Dr. P.K. Dubey (P.W. 1) with regard to duration of

death mentioned in the post-mortem report, Ex. P.14. Further more,

beginning of rigor mortis is dependent upon the weather conditions.

Therefore, in absence of any challenge to the duration of death

mentioned in the post-mortem report, Ex. P.14, it is held that the

submission that the death of the deceased had already taken place

much prior to 11-11:30 A.M. is false and is accordingly rejected.

52. It is next contended by the Counsel for the appellants that

according to Rajendra Singh (P.W. 7), the notice under Section 175 of

Cr.P.C. was already given to him at about 8-9 A.M. Thus, it is clear

that the death had already taken much prior to 8 A.M.

53. Considered the submissions made by the Counsel for the

appellants.

54. The incident took place on 18-1-2009, whereas this witness

was examined on 5-7-2018 i.e., after approximately 9 years of the

incident. With passage of time, the memory of a witness is bound to

fade. A stray mistake in evidence on account of delayed examination

of witness for the reason that the appellants were absconding, cannot

be a good ground to throw the prosecution case. Some minor

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

discrepancies are bound to happen due to passing of 9 long years. The

Supreme Court in the case of Sadhu Suran Singh Vs. State of U.P.

reported in (2016) 4 SCC 357 has held as under :

24.........In our considered opinion, the evidence of PW 1, who is an eyewitness who had lost three sons in the fateful incident was consistent and there are no major deviations or discrepancies and if at all any minor discrepancies that occurred in the evidence of PW 1 might have been due to the long gap between the date of the incident and the long delay in examination, more so, those discrepancies are not material in bringing home the guilt of the accused, we find no reason whatsoever to disbelieve his evidence.

55. It is next contended by the Counsel for the appellants that there

is a variance in the evidence of witnesses as to whether the deceased

was on his cycle, motor cycle or was on his feet. By referring to the

evidence of Krishna Bihari Singh Tomar (P.W. 2) it is submitted that

this witness has stated that the deceased was coming on his cycle.

Whereas according to Chillu Rajak (P.W. 3), the deceased was on his

feet. Whereas according to Rakesh Khatik (P.W. 10) the deceased

was on his motor cycle. Therefore, there is a major contradiction in

the evidence of the prosecution witnesses, thus, it is clear that they

have not seen the incident.

56. Considered the submissions made by the Counsel for the

appellants.

57. As already pointed out, the incident took place on 18-1-2009,

whereas Krishna Bihari Singh Tomar (P.W.2) was examined on 26-3-

2018, Chillu Rajak (P.W.3) was examined on 8-6-2019 and Rakesh

Khatik (P.W.10) was examined on 27-8-2018. This Court cannot lose

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

sight of the fact that long delay in examination of witnesses was for

the reason that the appellants were absconding and could be arrested

only on 5-10-2016. Thus, there is bound to be some lose of memory

with the passage of time. Thus, merely because there is a discrepancy

in the evidence of witnesses, on the question as to whether the

deceased was coming on his feet or was on cycle/motor cycle, this

Court is of the considered opinion, that the prosecution witnesses

cannot be disbelieved merely on this ground.

58. The FIR was lodged within a period of 25 minutes of the

incident and the distance of police station is only ½ KM. Further, the

injured was taken to the PHC Manpura and from there he was

referred to District Hospital, Shivpuri, where he reached at 1:25 P.M.

Thus, there is no delay in lodging of FIR.

59. So far as the non-mention of number of FIR in notice issued

under Section 175, Ex. P.5C, Naksha Panchayatnama, Ex. P.6C as

well as the requisition for post-mortem, is concerned, it is sufficient

to mention here that there is no column for mentioning the number of

FIR. Thus, non-mention of number of FIR in any of the above

mentioned documents doesnot indicate that the FIR was ante-dated or

ante-timed document.

60. No other argument is advanced by the Counsel for the

appellants.

61. Considering the evidence which has come on record, it is clear

there was bad blood between the parties and the complainant party

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

had purchased the land from the nephews of co-accused Govind Das,

therefore, the appellants had personal grudge against Mohan Singh.

Further, a false complaint of commission of rape was also made by

the wife of the appellant Balram against Mohan Singh (Deceased),

Ramgopal and Suresh. Further, the appellants have not brought any

thing on record to suggest that what transpired in offence which was

registered on the report of wife of the appellant Balram under Section

376 of IPC Further, the Counsel for the appellants could not point

out anything from the cross-examination of the witness, which may

make their evidence unreliable. In fact, no effective cross-

examination was done. The FIR was lodged immediately and the

prosecution witnesses have clearly stated that the appellants Balram

and Ramjilal caused injuries on the left had of the deceased Mohan

Singh. The injuries are also corroborated by medical evidence.

62. Thus, this Court is of the considered opinion, that the Trial

Court has rightly held that the appellants are guilty of committing

offence under Section 302/34 of I.P.C. Accordingly, the conviction of

appellants Govind Das and Gudda for offence under Section 302/34

of IPC is hereby affirmed.

63. So far as the question of sentence is concerned, the minimum

sentence for offence under Section 302 of IPC is life imprisonment.

Therefore, the sentence awarded by the Trial Court does not call for

any interference.

64. Ex-Consequenti, the judgment and sentence dated 4-4-2019

Balram & Anr Vs. State of M.P. (Cr.A. No.5079 of 2019)

passed by Additional Sessions Judge, Pichhore, Distt. Shivpuri in

S.T. No.106/2016 is hereby affirmed.

65. The appellants Balram and Ramjilal are in jail. They shall

undergo the remaining jail sentence.

66. Let a copy of this judgment be immediately provided to the

appellants, free of cost.

67. The record of the Trial Court be sent back along with copy of

this judgment for necessary information and compliance.

68. The appeal filed by Balram and Ramjilal is hereby Dismissed.

(G.S. Ahluwalia)                                          (Deepak Kumar Agarwal)
          Judge                                                           Judge

                            ARUN KUMAR MISHRA
                            2022.01.06 16:25:07 +05'30'