Baiju @ Vijay Singh vs State Of M.P.
2022 Latest Caselaw 355 MP

                                     1
      Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

     HIGH COURT OF MADHYA PRADESH
            GWALIOR BENCH

                    DIVISION BENCH

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

                   Cr.A. No. 704 of 2010

                    Baiju @ Vijay Singh

                                   Vs.

                          State of M.P.

Shri Ashok Jain Counsel for the Appellant
Shri C.P. Singh Counsel for the State

Date of Hearing                  : 06-01-2022
Date of Judgment                 : 07-Jan-2022
Approved for Reporting           :

                               Judgment

                         07th- 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 2-6-2010 passed by

Special Judge (MPDVPK Act), Gwalior in Special Sessions Trial No.

161/2002, by which the appellant has been convicted and sentenced

for the following offences :

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

Convicted under Section Sentenced 302/149 of I.P.C. read with Life Imprisonment and fine of Section 13 of MPDVPK Act for Rs. 500/- in default 6 months R.I.

murder of Punjab Singh
148 of I.P.C.                         2 years R.I. and fine of Rs. 500/-
                                      in default 6 month R.I.

302/149 of I.P.C. read with Life Imprisonment and fine of Section 13 of MPDVPK Act for Rs. 500/- in default 6 months R.I.

murder of Kartar Singh
148 of I.P.C.                         2 years R.I. and fine of Rs. 500/-
                                      in default 6 month R.I.

All the sentences shall run concurrently.

2. The prosecution story in short is that on 11-9-2002, Sobaran

Singh Yadav, lodged a Dehati Nalishi that he is the resident of village

Amardha. He was going towards Nayagaon. On the way he saw the

dead bodies of Kartar Yadav, who is the brother of Sultan Singh and

Punjab son of Khyali Baghele. Both the dead persons are known to

him as his relatives are also residing in Ramnagar and Manikpur is

adjoining to Ramnagar. One letter each was kept on the cloths of

both the dead bodies. From the contents of these letters it appears

that these persons have been shot dead by Dayaram Gadariya,

Rambabu Gadariya, Prakash Gadariya, Sobaran Gadariya, Vijay

Singh Gadariya (appellant), as it is specifically written by the dacoits

in the letter that the deceased persons were informer of the police and

they have got their brother Vijay Singh killed at the hands of the

police. The dead bodies are having multiple gun shot injuries and lot

of blood has lost. These murders have been committed in a most

planned manner which will be disclosed at a later stage after getting

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

information about it.

3. On this information, the police registered the F.I.R. for offence

under Sections 302,147,148,149 of I.P.C., under Sections 25/27 of

Arms Act, and under Section 11/13 of MPDVPK Act against the

appellant and Dayaram Gadariya, Rambabu Gadariya, Sobaran and

Prakash Baghel and others.

4. The police issued notice under Section 175 of Cr.P.C. to the

witnesses and prepared Lash Panchnama. Two letters were seized

from the bodies of each of the deceased. The dead bodies of the

deceased Kartar and Punjab Singh were sent for post-mortem. The

statements of the witnesses were recorded. The appellant was arrested

on 25-6-2007 i.e., after 5 years of incident. A memorandum was

recorded, in which the appellant informed the gun used by him has

already been seized in another case. The police after completing the

investigation, filed the charge sheet against the appellant for offence

under Sections 302,147,148,149 of I.P.C., under Section 25/27 of

Arms Act and under Section 11/13 of MPDVPK Act.

5. The Trial Court framed charges under Sections 147,148,

302/149 of I.P.C., under Section 25(1-B) of Arms Act and under

Section 11/13 of MPDVPK Act.

6. The appellant abjured his guilt and pleaded not guilty.

7. The prosecution examined Bhoop Singh (P.W.1), Sughar Singh

(P.W.2), Munshi Singh Yadav (P.W. 3), Sultan Singh (P.W.4), Balkar

Singh Yadav (P.W.5), Tahsildar Singh Baghel (P.W.6), Ved Prakash

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

(P.W. 7), Harimohan Sharma (P.W.8), Shriram Sharma (P.W.9), Navab

Singh (P.W.10), Dr. J.N. Soni (P.W.11) and Pradeep Sharma (P.W. 12).

8. The appellant did not examine any witness in his defence.

9. The Trial Court by the impugned judgment and sentence has

convicted and sentenced the appellant for the above mentioned

offences.

10. Challenging the impugned judgment passed by the Court

below, it is submitted that the Court below has failed to see that there

are material improvements in the evidence of witnesses and

accordingly, they are not reliable.

11. Per contra, the Counsel for the State has supported the findings

recorded by the Trial Court.

12. Heard the learned Counsel for the parties.

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

to find out as to whether the death of Kartar Singh and Punjab Singh

was homicidal in nature or not?

14. Dr. D.N. Soni (P.W. 11) had conducted post-mortem of Kartar

Singh and Punjab Singh. He found the following injuries on the dead

body Kartar Singh :

(i) Gun shot wound, entry present 1 cm below the right mastoid 1 cm in diameter, wound extends downward medially then to left side, exit wound present on left side flank above iliac Creast 5 x 3 cm in size after damaging neck structure heart left side diaphragm, spleen and intestine.

(ii) (Crush) Lacerated wound present on posterio medial aspect of left forearm 4 cm below cubital fossa. 18X9 cm vertical two lacerated also present below it on medial aspect

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

4 x 2 cm and laterally 5 x 2 cm muscle deep;

(iii) Abrasion over back right sub costal region and below 32x22 cm vertical;

(iv) Gun shot entry wound situated over right side upper chest 1.5 cm in diameter. Surrounded by tattooing 4 cm maximum on right side. Exit wound extends on infermomedially on left side sub costal region 12 cm from midline after damaging right wing (4th rib) liver and spleen.

(v) Gun shot entry wound present 8 cm below the injury no. 4 and 0.8 cm in diameter. It extends posteroinferriorly right flank posterolaterally 3 x 3 cm in diameter. Death was due to shock and hemorrhage as a result of multiple injuries. Injuries caused by fire arm and homicidal in nature.

Duration of death is within 12 hours to 36 hours since P.M. examination.

15. The post-mortem report is Ex. P.15.

16. Following injuries were found on the dead body of Punjab

Singh :

(i) Gun shot wound, present on medial border mid of right buttock 0.8 cm in diameter extends to right side 4 cm above sub costal region anteriorly after damaging liver. Exit wound 8 x 6 cm vertical.

(ii) Gun shot entry wound right thigh upper third 12 cm below iliac creast 1.5 cm diameter, wound extends after damaging pelvic bone to left side upper abdomen 3 x 4 cm kidney and spleen damage along with intestine

(iii) Gun shot gutter wound present on mid of left forearm 5 x 1.5 cm

(iv) Gun shot entry wound present inferomedial aspect of left buttock 3 x 2 cm it extends upwards and medially and the exit wound present over right side of mid of abdomen medially 6 x 6 cm intestine and spleen damaged.

(v) Scratch abrasions vertically placed on back covering 45 x 22 cm area vertical.

Death was due to shock and hemorrhage as a result of multiple injuries.

Duration of death within 12 to 24 hours since P.M. examination.

Injury caused by firearm and homicidal in nature.

17. The Post-mortem report is Ex. P.16.

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

18. This witness was cross-examined.

In cross-examination, it was admitted by this witness that at the

time of conducting post-mortem, he was not having the copy of FIR.

The names which were mentioned in the FIR, were mentioned in the

post-mortem report, Ex P.15 and P.16. He was unable to specify the

distance from which the gun shots were fired.

19. Thus, from the medical evidence, it is clear that the death of

Kartar Singh and Punjab Singh was homicidal in nature.

20. Now the moot question for consideration is that whether the

appellant Baiju @ Vijay Singh was one of the assailants causing

death of Kartar Singh and Punjab Singh or not?

21. Bhoop Singh (P.W. 1) has stated that he doesnot know the

appellant, therefore, he was unable to identify him in dock. the

incident took place about 3-4 years back. Two persons were killed.

From the letters recovered from the dead body, he came to know that

those persons were killed by Baiju @ Vijay Singh, Dayaram,

Rambabu, Prakash etc. This witness had identified the dead bodies of

Kartar and Punjab. The police had given safina form, Ex. P.1. The

Lash Panchnama of dead body of Kartar is Ex. P.2 and Lash

Panchnama of dead body of Punjab is Ex. P.3. The police had not

seized any thing else. However he admitted his signatures on seizure

memo Ex. P.4 and P.5. This witness was declared hostile and was

cross-examined by the Public Prosecutor, however, nothing could be

elicited which may support the prosecution case.

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

22. Sughar Singh (P.W.2) has not supported the prosecution story

and he was declared hostile. He was cross examined by Public

Prosecutor, but nothing could be elicited which may support the

prosecution case.

23. Munshi Singh Yadav (P.W.3) has stated that he had identified

the dead bodies of Kartar and Punjab. He was informed by the police

that two letters have been recovered, however, neither he had read the

same, nor were read out by the police. He denied his signatures on

Ex.P. 1,2 and 3. This witness was declared hostile and was cross-

examined by the Public Prosecutor, however, nothing could be

elicited which may support the prosecution case.

24. Sultan Singh (P.W. 4) in his examination-in-chief has stated

"that the incident took place about 7-8 years back. Baiju and Pratap

had taken his brother Kartar from the house. While going they told

him that they are taking him to Manikpur. They had also informed

him that they would interrogate Kartar and Punjab about the murder

of Vijay. Thereafter, appellant, Prakash, Rambabu, Dayaram and

Sobaran killed Kartar and Punjab. On the next day, police

approached this witness, then he came to know about the incident.

Since, he had seen the appellant in the night, therefore, he could not

identify him. The miscreants had left a letter in which it was

mentioned that since, Kartar and Punjab had killed Vijay, therefore,

both of them have been killed. After looking at appellant, this witness

stated that he seeing him for the first time. This witness was cross-

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

examined."

In cross-examination, this witness admitted that the miscreants

had not taken the deceased Kartar in his presence. The fact that

Kartar was taken away was informed to him by his cousin brother

Balkar on the next morning. Further, this witness also admitted "that

the fact that the appellant had taken away Kartar is not mentioned in

his police statement, Ex. D.1 and could not disclose the reason for the

same."

25. Balkar Singh Yadav (P.W. 5) in his examination-in-chief has

stated that "the appellant and Prakash had come in the night and took

away Kartar and Punjab with them and while taking away they also

informed that they would interrogate Kartar and Punjab about the

murder of their brother Vijay. On the next day at about 5 PM, both

the persons were killed and he came to know at about 10:30 PM.

Since, the deceased persons were taken away by the appellant and

Prakash therefore, they must have killed them". This witness was

cross-examined.

In cross-examination, this witness admitted that he is an

illiterate person and he had not seen the letter which was allegedly

recovered from the dead bodies. He was told by the police that this

brother has been killed by Gadariya Gang. In para 4 of his cross-

examination, "he further admitted that the facts disclosed by this

witness in his examination-in-chief were never disclosed by him to

any body and he is disclosing the same for the first time in the

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

Court."

26. Tahsildar Singh Baghel (P.W. 6) in his examination-in-chief

has also stated that "the appellant and Prakash had come to take the

Kartar and Punjab. The appellant had said that since, his brother

Vijay has been killed therefore, he would interrogate Kartar and

Punjab in this regard. The appellant and Prakash took Kartar and

Punjab with them. They had also extended a threat that no

information should be given to police, otherwise, they will be

compelled to take step which may cause difficulty to the witnesses.

On the next date at about 7-7:30, the police came to his house and

enquired about the whereabouts of his brother and also informed that

Kartar and Punjab have been killed." This witness was cross-

examined.

In cross-examination, this witness stated that the "facts

disclosed by him in the examination-in-chief is being disclosed by

him for the first time in the Court. He on his own explained that

earlier he had disclosed the same to Superintendent of Police but did

not disclose to any body else."

27. Ved Prakash (P.W.7) is a clerk posted in the office of Collector

and has proved the sanction for prosecution under Arms Act, Ex. P.9.

28. Hariom Sharma (P.W. 8) was posted as S.H.O. After taking

permission from the Court, he went to Central Jail, Gwalior and

recorded memorandum of the appellant. The appellant informed that

the .315 bore gun which was used by him has already been seized by

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

Police Station Ghatigaon on 23-4-2007. The memorandum is Ex. P.

10. Thereafter, with the permission of the Court, he formally seized

the .315 bore rifle from Head Constable posted in Police Station

Ghatigaon vide seizure memo Ex. P.11. This witness was cross-

examined.

In cross-examination, this witness admitted that document Ex.

P.10 (Memorandum of appellant) was prepared by him in Police

Station Panihar. He admitted that he had brought the appellant from

Central Jail Gwalior to Panihar Police Station. He admitted that the

said rifle was already seized in crime no. 53/2007. He admitted that

the said gun was already deposited in Police Station Ghatigaon.

29. Shriram (P.W.9) had recorded the statements of Bhoop Singh,

Avtar Singh, Sughar Singh and Munshi Singh and filed the charge

sheet after completing the investigation.

30. Navab Singh (P.W.10) was posted in Police Station Panihar as

Head Constable. Constable Suvalal had brought a Dehati Nalishi

written by Pradeep Verma, S.H.O. Police Station. Accordingly, he

registered the crime no. 152/153 of 2002, Ex. P.12. On the basis of

FIR, merg intimation, Ex. P.13 was written. On 26-11-2002 he

seized a sealed packet which was brought by Head Constable from

Hospital. Since, two persons had died therefore, two packets were

brought. One packet was containing the pellets recovered from the

dead body of Kartar. They were seized vide seizure memo Ex. P.14.

This witness was cross-examined.

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

31. Pradeep Sharma (P.W. 12) is the investigating officer. He

issued Safina form, Ex. P.1 for the dead body of Katar Singh. The

Lash Panchnama of deceased Kartar Singh and Punjab Singh were

prepared, Ex. P.2 and P.3. One page of diary lying near the dead body

of Kartar Singh was also seized vide seizure memo Ex. P.4. Similarly

one page of diary lying near the dead body of Punjab Singh was

seized vide seizure memo Ex. P.5. The blood stained and plain earth

were seized. Blood stained cloths were also seized. One .12 bore

empty cartridge, one .315 bore empty cartridge, one brass shell were

seized vide seizure memo Ex. P.6. The statements of Sultan, Balkar

and Tahsildar were recorded by him and nothing was added or

subtracted. On 11.9.2002, the Dehati Nalishi, Ex. P.1 was written on

the information given by Sobaran Singh. On 11-9-2002 he recorded

the statements of Sobaran Singh and Mahendra Singh and on 14-9-

2002, the statements of Kedar Singh and Hakim Singh were recorded.

This witness was cross-examined.

In cross-examination, this witness admitted that the pages of

diary which were recovered from the dead bodies of the deceased

persons have not been filed in the present case. However, he stated

on his own, that the pages of diary have already been deposited in the

Malkhana. He further admitted that he doesnot know that who had

written on those pages. He tried to explain that investigation in that

regard was done by another police officer. Whatever was written on

the pages is reproduced in the seizure memo Ex. P.4.

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

32. Thus, from the evidence led by the prosecution, it is clear that

only three witness i.e., Sultan Singh (P.W. 4), Balkar Singh Yadav

(P.W.5) and Tahsildar Singh Baghel (P.W.6) have supported the

prosecution case. Although it is the case of the prosecution that two

pages of diary were also seized from the dead bodies in which it was

mentioned that the deceased have been killed by appellant, Dayaram,

Rambabu, Prakash and Sobaran Singh, but those pages have not been

produced in the Trial. It is also not known that the contents of those

two letters were in the handwriting of which person.

33. So far as Sultan Singh (P.W.4) is concerned, he is not reliable

for two reasons i.e.,

(i) In his cross-examination, he has admitted that the

abductees/deceased persons were not taken away by the appellant and

Prakash in his presence and he was informed by Balkar Singh (P.W.

5) on the next morning.

(ii) The fact that the appellant and Prakash had taken away Kartar

and Punjab was not mentioned in his police statement Ex. D.1.

34. Similarly, Balkar Singh (P.W. 5) is also not reliable because in

his police statement, Ex. D.2, he had not disclosed to the police, that

the appellant and Prakash had taken away Kartar and Punjab with

them.

35. Similarly Tahsildar Singh Baghel (P.W. 6) is also not reliable

because in his police statement, Ex. D.3, he had not disclosed that the

appellant and Prakash had taken away Kartar and Punjab with them.

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

36. The entire prosecution case is based on the solitary

circumstance of Last Seen Together, and in the police statements of

Sultan Singh (P.W.1), Balkar Singh (P.W2) and Tahsildar Singh

Baghel (P.W. 3), the said fact is not mentioned. Thus, the omission

of the allegation of Last Seen Together in the police statements of

Sultan Singh (P.W.4), Balkar Singh (P.W.5) and Tahsildar Singh

(P.W.6) is a major contradiction.

37. The Supreme Court in the case of S. Govindaraju v. State of

Karnataka, reported in (2013) 15 SCC 315 has held as under :

23. It is well settled legal proposition that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions were of such magnitude so as to materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements in relation to trivial matters, which do not affect the core of the case of the prosecution, must not be made a ground for rejection of evidence in its entirety. The trial court, after going through the entire evidence available, must form an opinion about the credibility of the witnesses, and the appellate court in the normal course of action, would not be justified in reviewing the same, without providing justifiable reasons for doing so. Where the omission(s) amount to a contradiction, creating a serious doubt regarding the truthfulness of a witness, and the other witnesses also make material improvements before the court in order to make the evidence acceptable, it would not be safe to rely upon such evidence. The discrepancies in the evidence of eyewitnesses, if found not to be minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, the witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with the other evidence available or with a statement that has already been recorded, then in such a case, it cannot be held that the prosecution has proved its case beyond reasonable doubt.

38. However, in order to consider that whether there is any

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

contradiction in the police statement and Court evidence of witnesses,

the attention of the witness and the investigation officer is to be

necessarily drawn.

39. The Supreme Court in the case of V.K. Mishra v. State of

Uttarakhand, reported in (2015) 9 SCC 588 has held as under :

16. Section 162 CrPC bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) CrPC can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162(1) CrPC. The statements under Section 161 CrPC recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused under Section 145 of the Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court; and

(iii) the re-examination of the witness if necessary.

17. The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 CrPC "if duly proved" clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the investigating officer. The statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by drawing attention to the parts intended for contradiction.

18. Section 145 of the Evidence Act reads as under: "145. Cross-examination as to previous statements in writing.--A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

used for the purpose of contradicting him."

19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction.

40. Now the question is that whether the contradiction in the

police statement and the Court evidence of witnesses has been

proved in accordance with law or not?

41. In para 2 of cross-examination, the attention of Sultan Singh

(P.W. 4) was drawn towards the omission in his police statement Ex.

D.1 regarding the circumstance of Last Seen Together, however, this

witness could not explain as to why the fact of taking away of Kartar

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

by the appellant and Prakash is not mentioned in his police statement,

Ex. D.1.

42. In para 4 of cross-examination, Balkar Singh (P.W. 5) admitted

that the evidence given by him in his examination-in-chief was

deposed by this witness for the first time in the Court and had not

disclosed to any body prior to that. Even there is no such allegation

in his police statement, Ex. D.2.

43. In para 3 of cross-examination, Tahsildar Singh Baghel (P.W.

6) admitted that the evidence given by him in his examination-in-

chief was deposed by this witness for the first time in the Court and

had not disclosed to any body prior to that. Even there is no such

allegation in his police statement, Ex. D.3.

44. Pradeep Sharma (P.W. 12) in para 2 of his examination-in-chief

itself had stated that he had not added or subtracted anything in the

police statements of Sultan Singh, Balkar Singh and Tahsildar Singh.

In para 7 of his cross-examination, this witness further clarified that it

is incorrect to say that Balkar Singh (P.W.5) had not given any

statement and he had recorded the statement of Balkar Singh on his

own and similarly he denied that he had recorded the statements of

Tahsildar Singh on his own. Thus, in view of the specific statement

made by this witness in para 2 of his examination-in-chief, it is clear

that nothing was added and subtracted by this witness in the police

statements of Sultan Singh (P.W.4), Balkar Singh (P.W.5) and

Tahsildar Singh Baghel (P.W.6).

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

45. Although the manner in which the attention of Balkar Singh

(P.W. 5) and Tahsildar Singh Baghel (P.W. 6) and Pradeep Sharma

(P.W. 12) was drawn towards the omission of allegation of last seen

together in the police statement, Ex. D.2 and D.3 was not upto the

mark, and a specific question should have been put to them regarding

such omission, but under the facts and circumstances of the case in

hand, the general submission regarding omission of all the allegations

made in examination-in-chief, in their police statement, Ex. D.2 and

D.3 would substantially satisfy the requirement of Section 154 of

Evidence Act.

46. Since, there was omission of Last Seen Together in the police

statement of Balkar Singh (P.W. 5) and Tahsildar Singh Baghel

(P.W.6), therefore, such allegation in the Court evidence for the first

time, would certainly amount to Major Contradiction going to the

root of the case. Thus, the evidence of Balkar Singh (P.W. 5) and

Tahsildar Singh Baghel (P.W.6) regarding Last Seen Together is

untrustworthy and unreliable as these two witnesses donot inspire

confidence.

47. So far as Sultan Singh (P.W. 4) is concerned, apart from

omission of Last Seen Together in his police statement, Ex. D.1, this

witness was also demolished by the defence in his cross-examination.

In cross-examination, this witness admitted that Kartar was not taken

away by the appellant in his presence. This witness has also stated

that he is seeing the appellant for the first time. This witness has

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

further admitted that he was informed by Balkar Singh. Thus, it is

held that Sultan Singh (P.W. 4) is not only a hearsay witness but in

view of major contradictions, he is not reliable or trustworthy

witness.

48. Thus, the circumstance of Last Seen Together could not be

proved by the prosecution at all.

49. So far as the question of recovery of .315 bore rifle from the

possession of the appellant, in absence of any report of ballistic

expert, it cannot be said that the rifle seized from the possession of

appellant was used in committing offence.

50. So far as the question of seizure of letter containing declaration

regarding the manner in which the offence was committed is

concerned, the said letters have not been produced by the

prosecution. Thus, the mere seizure memo, Ex. P.4 and P.5 would

give any support to the prosecution story. Further more, Pradeep

Sharma (P.W. 12) has also admitted that he cannot say that who had

written those letters. It is also not known that who had written those

letters. Even Sultan Singh (P.W.4) has stated that letters were not

seized in his presence and he was told by the police However, he

claimed that he had read the said letter in which it was written that

"since Vijay has been killed by these persons, therefore, they have

been killed." Apart from that nothing was written in the letter. Thus,

it is clear that Sultan Singh (P.W.4) has not supported the prosecution

version that the name of the appellant along with other miscreants

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

was also mentioned in the letter. Further, Balkar Singh (P.W. 5) has

stated that he had not seen the letter at all. Tahsildar Singh (P.W. 6)

has not stated anything about the letter. Thus, the prosecution has

also failed to prove the seizure of letters as well as contents of the

letters.

51. There is no other circumstance against the appellant.

52. Thus, it is held that the prosecution has miserably failed to

prove the guilt of the appellant. Accordingly, the appellant Baiju @

Vijay is acquitted of all the charges.

53. Ex-consequenti, the judgment and sentence dated 2-6-2010

passed by Special Judge (MPDVPK Act), Gwalior in Special

Sessions Trial No. 161/2002 is hereby Set aside.

54. The appellant is in jail. He be immediately released from the

jail, if not required in any other case.

55. Let a copy of this judgment be also provided to the appellant,

free of cost.

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

this Judgment for necessary information and compliance.

57. Before parting with this judgment, this Court would like to

mention, that the judgment was written by the Trial Court in a most

casual manner. From the judgment, it appears that the examination-

in-chief of the witnesses were reproduced, but the cross-examination

done by the defence was not considered at all. Cross-examination is

the only tool in the hand of the defence to prove the innocence of an

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

accused. The same should not be ignored while appreciating the

evidence. The Trial Court did not try to find out as to whether there

are any contradictions, improvements in the evidence of the witnesses

or not, and if so, then whether they are of minor or major in nature. It

appears that the Trial Court got swayed away by the fact that two

persons were killed. However, the Trial Court should not lose sight

of the fact that at the same time, it is also dealing with the life and

liberty of a person. The Division Bench of this Court in the case of

Pratap Vs. State of M.P. by judgment dated 25-9-2017 passed in

Cr.A.No. 635 of 1997 has held as under :

52. However, I am compelled to write a few words to express by anguish arising from the disturbing fact of appellant having to suffer 26 (twenty six) long years of incarceration before being acquitted.

53. I in my usual nonchalance can very well turn a Nelsons eye towards this disturbing feature by terming it to be a systemic defect but my conscience impels me to do otherwise.

54. It is for the executive and as well the judiciary to take remedial steps to prevent recurrence of such instances where rendering of judgment becomes a source for remorse rather than relief. Appellant Pratap was arrested in April, 1991. Pratap faced a long drawn prosecution, interspersed by repeated stay of trial which concluded in June 2002 by convicting him where after this appeal took 15 (fifteen) long years to culminate into this judgment upholding the defence of innocence.

55. I hope, trust and pray to God that we judges, the executive and legislative functionaries of the State and the Union get strength and inclination to come out from our comfort zones and become more sensitive towards the grievance of the persons like appellant Pratap by making the necessary changes on the legislative, executive and judicial front to prevent another Pratap to crop up and shake

Baiju @ Vijay Singh Vs. State of M.P. (Criminal Appeal No. 704 of 2010)

our conscience again.

58. Accordingly, the appeal succeeds and is hereby Allowed.

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


                             ARUN KUMAR MISHRA
                             2022.01.07 17:06:32 +05'30'