Madhya Pradesh High Court
Dashrath And 2 Ors. vs The State Of Madhya Pradesh on 13 October, 2022
Author: Amar Nath (Kesharwani)
--1-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
HEARD ON THE 14th OF JULY, 2022
DELIVERED ON 13th OCTOBER, 2022
CRIMINAL APPEAL No. 1150 of 2012
Between:-
DASHRATH S/O HARIRAM, AGED ABOUT 43 YEARS, VILLAGE
1. KHANDODA P.S. INGORIYA TEH. BADNAGAR, DISTT. UJJAIN
(MADHYA PRADESH)
RAJARAM @ RADHKRISHAN S/O HARIRAM , AGED ABOUT 42
2. YEARS, VIL. KHANDODA,P.S. INGORIYA, TEHSIL BADNAGAR
(MADHYA PRADESH)
MODIRAM S/O HARIRAM, AGED ABOUT 47 YEARS, VIL.
3. KHANDODA,P.S. INGORIYA TEHSIL BADNAGAR (MADHYA
PRADESH)
.....APPELLANTS
(SHRI VIVEK SINGH, LEARNED COUNSEL FOR THE APPELLANTS)
AND
THE STATE OF MADHYA PRADESH GOVT. THRU. P.S. INGORIYA
DISTT. UJJAIN (MADHYA PRADESH)
.....RESPONDENT
(SHRI BHASKAR AGRAWAL, LEARNED GOVERNMENT ADVOCATE
FOR THE RESPONDENT/STATE)
-------------------------------------------------------------------------------------------------
CRIMINAL APPEAL No. 1165 of 2012
--2-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
Between:-
MODIRAM S/O GANGARAM, AGED ABOUT 50 YEARS, VILLAGE-
1. KHANDODA, P.S. INGORIYA, TEH. BADNAGAN, DIST. UJJAIN
(MADHYA PRADESH)
KAILASH S/O GANGARAM, AGED ABOUT 40 YEARS, VIL.
2. KHANDODA, P.S. INGORIYA, TEHSIL BADNAGAR (MADHYA
PRADESH)
KAMAL @ SANDEEP S/O MODIRAM , AGED ABOUT 26 YEARS, VIL.
3. KHANDODA, P.S. INGORIYA, TEHSIL BADNAGAR (MADHYA
PRADESH)
.....APPELLANT
(SHRI MANISH KUMAR VIJAYWARGIYA, LEARNED COUNSEL FOR
THE APPELLANTS)
AND
THE STATE OF MADHYA PRADESH GOVT. THROUGH P.S.
INGORIYA, DIST. UJJAIN (MADHYA PRADESH)
.....RESPONDENT/STATE
(SHRI BHASKAR AGRAWAL, LEARNED GOVERNMENT ADVOCATE
FOR THE RESPONDENT/STATE)
--------------------------------------------------------------------------------------
CRIMINAL APPEAL No. 985 of 2014
Between:-
THE STATE OF MADHYA PRADESH GOVT. THRU. P.S. INGORIYA,
DISTT.UJJAIN (MADHYA PRADESH)
.....APPELLANT
(SHRI BHASKAR AGRAWAL, LEARNED GOVERNMENT ADVOCATE
FOR THE RESPONDENT/STATE)
AND
HARIRAM S/O MOTILAL JAAT, AGED ABOUT 86 YEARS,
--3-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
KHANDODA,P.S.INGORIYA (MADHYA PRADESH)
.....RESPONDENT
(SHRI VIVEK SINGH, LEARNED COUNSEL FOR THE RESPONDENT)
These appeals coming on for orders this day, JUSTICE AMAR
NATH (KESHARWANI) passed the following:
JUDGMENT
(1) The above criminal appeals are being decided by this common
judgment as all the appellants of CRA. No.1150/2012 and CRA
No.1165/2012 have been convicted and sentenced for murder of
"Nanji" and CRA. No.985/2014 has been filed against the acquittal of
accused- Hariram S/o Motilal Jaat. CRA. No.1150/2012 and CRA
No.1165/2012 have been preferred under Section 374 of the Code of
Criminal Procedure, 1973 and CRA. No.985/2014 has been filed under
Section 378 of the Code of Criminal Procedure, 1973 (in short
"Cr.P.C") against the judgment dated 29.08.2012 passed by Sessions
Judge, Ujjain in Session Trial No.566/2009 whereby the appellants of
CRA. No.1150/2012 and CRA No.1165/2012 have been convicted and
sentenced as mentioned below:-
In CRA.No.1150/2012, the conviction of the appellant Nos. (1)
Dashrath and (3) Modiram S/o Hariram Jaat is as under:-
Conviction Sentence
Section & Act Imprisonment Fine deposited Imprisonment
details in lieu of Fine
Sections 147 & 148 of I.P.C. 1 year RI --- ---
--4-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
Sec. 302 r/w 149 of I.P.C. Life Rs.5000/- 1 year R.I.
Imprisonment
So far as appellant No.2- Radhakishan @ Rajaram is concerned,
the details of his conviction is as under:-
Conviction Sentence
Section & Act Imprisonment Fine deposited Imprisonment
details in lieu of Fine
Sections 147 & 148 of I.P.C. 1 year RI --- ---
Sec. 302 r/w 149 of I.P.C. Life Rs.5000/- 1 year R.I.
Imprisonment
Sections 30 of the Arms Act. 6 months ---- ---
imprisonment
In CRA. No.1165/2012, the conviction of the appellant Nos. (1)
Modiram S/o Gangaram Jaat (2) Kailash and (3) Kamal @ Sandeep is
as under:-
Conviction Sentence
Section & Act Imprisonment Fine deposited Imprisonment
details in lieu of Fine
Sections 147 & 148 of I.P.C. 1 year RI --- ---
Sec. 302 r/w 149 of I.P.C. Life Rs.5000/- 1 year R.I.
Imprisonment
(2) Prosecution story, in brief, is that on 04.08.2009, at around 06:00
P.M., the complainant- Shriram(PW-1), and his father Nanji(deceased)
were riding on a motorcycle bearing registration No.M.P.-13-
MA/P9813 to their agricultural land to check Soyabean crop and apply
pesticide on it. The motorcycle was being driven by Nanji, the
complainant Shriram(PW-1) saw that all the accused persons were
--5-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
standing on the road along with deadly weapons- Dharia, Farsi, 12
bore gun, and Lathi in their hands, therefore, he asked his father Nanji
to slow down the bike, after which, he(PW-1) jumped from the bike
and ran to the other side, one of the accused persons, Rajaram fired
upon the deceased Nanji and Nanji ran towards the agricultural land
belonging to Modiram, where the Nanji(deceased) was surrounded by
all the accused/appellants and they started assaulting Nanji, resulting in
injuries all over his body using Dharia, Farsi and Laathi. The deceased
Nanji received various grievous injuries and succumbed to his injuries
and blood loss on the spot, which were caused by the accused persons.
At the same time, Prithviraj(PW-2), Chainram, and Ganpat(PW-4), who
were coming from the other side, and seeing them, the
accused/appellants fled. Shriram(PW-1) narrated the whole incident to
his uncle Prithviraj(PW-2), then Prithviraj informed the police about the
said incident. After receiving the information about the incident, the
same was entered in the general diary (Roznamcha Sanha) at entry
No.170/04.08.2010 (Ex.D-7) by Shri Arvind Tambe, (PW-12), the then
Sub-inspector, Police Station- Ingoriya and proceeded to the spot and
reached there at around 08:00 P.M., and recorded Dehati Nalishi(Ex.P-
1) as per the information given by Shriram(PW-1), against the
appellants and accused Hariram and registered F.I.R.(Ex.P.-29) Crime
No.236/2009 under Sections 302, 147, 148 and 149 of I.P.C. During the
investigation, Panchnama of dead body(Ex.P-3) was prepared and body
of the deceased was sent for postmortem. The autopsy was done by Dr.
B.B. Purohit (PW-5) and he prepared the autopsy report (Ex.P-6),
--6-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
according to the postmortem report, the cause of the death was due to
"profuse hemorrhage as a result of incised stabbed injury. Head- leading
sharp injury in the brain and stabbed incised injury in the neck, and in
the chest, leading sharp injuries to the carotid artery and Aorta and
opined that the death is homicidal in nature."
(3) During the investigation, appellants and co-accused Hariram
were arrested and after the completion of the investigation, charge-sheet
was filed against the appellants and co-accused Hariram under Sections
147, 148, 149, and 302 of IPC and Sections 25 and 30 of Arms Act.
Thereafter, the case was committed to session court, Dewas and the trial
court framed the charges against the appellants and co-accused Hariram
(except Rajaram @ Radha Kishan S/o Hariram Jaat) under Sections
147, 148, and 302 r/w 149 of IPC and against appellant Rajaram @
Radha Kishan S/o Hariram Jaat charges were framed under Sections
147, 148 and 302 r/w 149 of IPC and Sections 25/30 of Arms Act and
they denied the charges and pleaded for trial. After evaluating the
evidence that came on record, the trial court found the appellants guilty
and convicted and sentenced them as mentioned hereinabove. Being
aggrieved by the said judgment of conviction and sentence, the
appellants have filed these criminal appeals before this Court and
against the acquittal of co-accused Hariram, the State has filed CRA
No.985/2014.
(4) The grounds for the appeal are that the judgment of the learned
trial court is contrary to the law and facts on record. The appellants
were falsely implicated in the case and the trial court has wrongly
--7-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
convicted them for the offence under Sections 147, 148, 302 r/w 149 of
I.P.C and Section 30 of the Arms Act, despite the fact that there are
severe omissions and contradictions in the statements of the prosecution
witnesses. Learned lower court failed to consider that the alleged eye-
witness Shriram(PW-1) is the son of the deceased and Prithviraj (PW-2)
is the brother of the deceased "Nanji", and Ganpat(PW-4) is the servant
of the deceased and they had no reason to be at the place of incident at
the relevant point of time and Ramesh (PW-3) is also relative of the
deceased, therefore, PW-1, PW-2, PW-3 and PW-4 are interested
witnesses. As per the case of the prosecution and statement of
Shriram(PW-1), he had been to the place of the occurrence with his
father deceased- Nanji to check on the Soyabean crops but at the time
of the incident, in the disputed agricultural land, there were no crop of
Soyabean, as the site plan(Ex.D-4) prepared by Patwari-
Kamaldeep(PW-6) which was prepared at the instance of Shriram(PW-
1). Arvind Tambe, Sub-Inspector(PW-12), who went to the place of
occurrence and prepared the site plan has admitted in para No.15 that
there were no Soyabean crops in the field of deceased Nanji, therefore,
the statement of Shriram (PW-1) that he was going to the agricultural
land to check on the Soyabean crops along with his father deceased-
Nanji is false.
(5) Furthermore, there is no compliance of Section 157 of Cr.P.C.
The statements of close relatives are inconsistent with the medical
evidence of Dr. B.B. Purohit(PW-5). Alleged telephonic information
only shows that only the name of appellant- Modiram was mentioned
--8-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
and no other names were mentioned, nor the number of assailants was
mentioned. FIR(Ex.P-29) is inconsistent with the copy of Roznamcha
Sanha (Ex.P-7). As per the prosecution case, the appellant was armed
with Lathi but, there are no injuries caused using Lathi on the person of
the deceased Nanji. The trial court has ignored the statement of Dr. B.B.
Purohit (PW-5), who has stated in the postmortem report and in the
deposition before the trial court that the alleged gun-shot injuries were
post-mortem and not anti-mortem, therefore, the impugned judgment
and conviction is not sustainable in law, and prays for setting aside the
judgment of conviction and sentence and prays for acquittal.
(6) The grounds for the appeal filed on behalf of the respondent/State
are that the judgment of the trial court regarding respondent- Hariram
S/o Motilal Jaat is against the evidence placed on record and contrary to
the law, which is not sustainable in the eyes of law. Before the trial
court, Shriram(PW-1) who is an eyewitness to the incident had
identified the respondent Hariram and categorically stated that the
respondent- Hariram provoked other co-accused persons stating that
"Aaj Saale Ko Jaan Se Maardo Bachna Nahi Chahiye". It was also
stated that the statement of Shriram(PW-1) was corroborated by Dehati
Nalish(Ex.P-1) and the statement recorded under Section 161 of Cr.P.C.
(Ex.D-3), therefore, the respondent- Hariram was also liable to be
convicted and sentenced as other co-accused persons were convicted
and sentenced, therefore, the judgment of trial court regarding
respondent- Hariram is contrary to law and evidence and, therefore,
prays to set aside the parts of the finding of the trial court and to convict
--9-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
and sentence the respondent- Hariram.
(7) Learned counsel for the appellants in Cr.A. No.1150/2012 and
Cr.A. No.1165/2012 in their arguments have drawn the attention of this
Court toward the grounds mentioned in the appeal memo and prayed for
acquittal of the appellants.
(8) Counsel appearing for the respondent/State in Cr.A.
No.1150/2012 and Cr.A. No.1165/2012 and for the appellant in Cr.A.
No.985/2014 opposed the prayer by submitting that the appellants in
Cr.A. No.1150/2012 and Cr.A. No.1165/2012 have assaulted the
deceased using Dhariya, Farsi, Lathi and Gun. The statement of eye-
witness "Shriram" (PW-1) was corroborated by Prithviraj (PW-2) and
Ganpat(PW-4), medical evidence by Dr. B.B. Purohit (PW-5), autopsy
report (Ex.P-6) and FSL report (Ex.P-40 & Ex.P-41). Therefore, the
judgment and sentence passed against the appellants in Cr.A.
No.1150/2012 and Cr.A. No.1165/2012 are as per law, and therefore, no
interference is called for and submitted that the learned trial court has
wrongly acquitted accused-Hariram (respondent of Cr.A. No.985/2014)
and submitted that Hariram is the person whose presence is proved by
eye witness Shriram (PW-1) and he provoked the other co-accused
persons/appellants to murder "Nanji", therefore, accused-Hariram is
also liable for murder of "Nanji", hence, with the aid of Section 149 of
IPC, accused-Hariram is also liable to be convicted and sentenced for
murder of "Nanji". Hence, prayed to allow Criminal Appeal
No.985/2014 filed on behalf of the State and prayed for dismissal of
Criminal Appeal No.1150/2012 and Criminal Appeal No.1165/2012
--10-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
filed on behalf of convicted and sentenced persons- (1) Dashrath S/o
Hariram (2) Rajaram @ Radhakishan S/o Hariram (3) Modiram S/o
Hariram (4) Modiram S/o Gangaram (5) Kailash S/o Gangaram and (6)
Kamal @ Sandeep S/o Modiram.
(9) We have heard the learned counsel for the parties and perused the
record and examined the statement of witnesses.
(10) As per the statement of Dr. B.B. Purohit (PW-5), who conducted
the autopsy of deceased "Nanji", the cause of death was "profuse
hemorrhage as a result of incised stabbed injury. Head- leading sharp
injury in the brain and stabbed incised injury in the neck, and in the
chest, leading sharp injuries to the carotid artery and Aorta" and opined
that the death is homicidal in nature and proved the autopsy report
(Ex.P-6). That part of the Statement of Dr. B.B. Purohit, (PW-5) is
unchallenged and there is no challenge to the findings recorded by the
trial court that the death of "Nanji" is "homicidal in nature" due to
injuries found on the body of "Nanji", hence, we are not required to
appreciate the same, hence, we affirm the same.
(11). Now, the only issue remains before us is that "whether the
murder of "Nanji" was caused by the appellants of Cr.A. No.1150/2012
the appellants of Cr.A. No.1165/2012 and by the respondent "Hariram"
of Cr.A. No.985/2014.
(12) As per the prosecution case, it is the case of eyewitnesses, and to
prove his case the prosecution has examined "Hariram" (PW-1) as an
eye witness, who was riding on a motorcycle driven by the deceased
"Nanji" at the time of the incident and examined Prithviraj (PW-2) and
--11-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
Ganpat (PW-4), who respectively reached on the spot after hearing
people shouting and the gunshot.
(13) Hariram (PW-1) stated in his chief examination before the trial
court that on the date of the incident at around 06:00 P.M., he and his
father went on to their agricultural land on a motorcycle which his
father was driving to check on crops and spray insecticides if need be.
While on the way to their farm, PW-1 saw that the accused persons
were standing at some distance armed with weapons, and that is when
he asked his father to stop the motorcycle, and while the motorcycle
was deaccelerating, he jumped off the motorcycle. PW-1 further stated
that the accused-Rajaram Jaat fired the gun from the front. Then, his
father left the motorcycle and ran towards the farm, at that moment
accused-Modiram son of Gangaram hit his father on his face with
"Dhariya", thereafter, accused- Kailash, Kamal and Modiram S/o
Hariram hit his father with a Farsi and accused-Dashrath struck his
father with a stick, while Hariram was saying that "Aaj Saale Ko Jaan
Se Maardo Bachna Nahi Chahiye"
(14) PW-1 further stated that when the accused persons were
assaulting his father, he was shouting and asking them to stop. While he
was shouting, accused persons started advancing towards him to kill
him, then he too started running towards the road and saw that his Kaka
Prithviraj (PW-2) and Chainram were coming down the road, and from
one side, Ganpat Chamar (PW-4) reached there, after seeing this, the
accused persons fled the scene and he found that his father was dead by
that time and he narrated the whole incident to his Kaka- Prithviraj
--12-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
(PW-2) and Chainram. PW-1 further said that his father had multiple
injuries on his face, neck, and chest, his Kaka called the Police, and
thereafter the police reached the spot and lodged the report of the whole
incident.
(15) As per the statement of Hariram (PW-1), the information about
the incident was given by Prithviraj (PW-2) to the police by phone from
the place of the incident, and police came on the spot, then he (PW-1)
lodged the report with police (Dehati Nalishi Ex.P-1). The statement of
PW-1 was corroborated by Prithviraj (PW-2) and Arvind Tambe, Sub-
inspector (PW-12).
(16) Prithviraj (PW-2) stated in his chief examination before the trial
court that on the date of the incident on 04.08.2009, he was coming
from Mundat along with Chainram on his motorcycle at around 06:00
P.M., and when he was near to the under-construction house of Jagdish
Balai, he heard shouting, thereafter he turned around towards the
agricultural land which was purchased by deceased Nanji from
Rajaram S/o Gangaram, where he saw that Shriram was running
towards him and Rajaram son of Hariram was carrying a gun, Modiram
son of Gangaram carrying a Dharia, while Modiram son of Hariram,
Kailash and Kamal alias Sandeep were carrying Farsi, Dashrath was
carrying a Lathi and Hariram was unarmed, were chasing Shriram, and
he also saw Ganpat Chamar standing there and after seeing them, the
accused persons ran away. After that, all three went to the dead body of
Nanji which was covered in blood, and found that there were injuries on
the head, neck, and face of the body and Nanji was lying dead. PW-2
--13-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
further stated that Shriram told him about the incident and then he
informed the police station and after one and a half hours, police arrived
there and scribed the report as stated by Hariram.
(17) Statement of PW-1 and PW-2 has been corroborated by Arvind
Tambe Sub-inspector (PW-12) regarding the information given about
the incident to the police and lodging the report. Arvind Tambe (PW-12)
stated in his chief examination before the trial court that on 04.08.2009,
he was posted as Sub-inspector at PS- Ingoriya and he received the
information by telephone that in the village- Khandoda, "Nanji" was
murdered by assault, then he recorded the same in Roznamcha (Ex.D-7)
and rushed to the spot along with police party by informing senior
official and after reaching the spot, he wrote "Dehati Nalishi" (Ex.P-1)
as told by PW-1.
(18) Learned counsel for the appellants submits that the information
given by Prithviraj (PW-2) to the police on phone has not described all
the names of the appellants but, only disclosed the name of appellant-
Modiram in these circumstances, prosecution story is not to be believed.
In support of his arguments, he placed reliance upon the citation of
Wilayat Khan and others Vs. State of U.P., AIR 1953 SC 122.
(19) We have considered the arguments and gone through the citations
placed reliance upon by the learned counsel for the appellants.
(20) Copy of "Roznamcha Sanha" (Ex.D-7) dated 04.08.2009, time
19.00 hours is on record, and contents of Ex.D-7) are reproduced as
below-
"bl le; lwpuk gS fd i`Fohjkt TkkV fuoklh [k.Mksnk }kjk
--14-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
tfj;s VsyhQksu lwpuk nh fd esjs cMs HkkbZ ukuth [ksr ij ?kweus
x;s Fks eksMhjke o mlds lkfFk;ksa us esjs cMs+ HkkbZ ukuth fuoklh
[k.Mksnk ds ekjihV dj gR;k dj nh gSA vken lwpuk ntZ dh
x;h"
(21) Since, in the entry of "Roznamcha Sanha" (Ex.D-7), it has been
mentioned that Modiram and his companions have assaulted and killed
his elder brother "Nanji" and after that when police came to the spot,
the eye-witness - Hariram (PW-1) scribed the detailed report "Dehati
Nalishi" (Ex.P-1), therefore, no benefit of doubt can be granted to the
appellants and the citation placed by learned counsel of the appellants
does not extend the benefit to the appellants
(22) As per Dehati Nalishi (Ex.P-1), the date and time of the incident
are 04.08.2009 at 06.00 P.M. and as per Ex.D-7, information about
crime was entered in Roznamcha Sanha at 19.00 hours and "Dehati
Nalishi" (Ex.P-1) was recorded on 04.08.2009 at about 20:10 hours.
Therefore, in giving the information about the incident to the police and
in lodging the detailed report, there was no undue delay. In Dehati
Nalishi (Ex.P-1) names of accused persons were specifically mentioned
and the overt act of all the accused persons was also specifically
mentioned.
(23) Learned counsel for the appellants submits that provision of
Section 157 of Cr.P.C. was not complied with in the case and in that
regard, he draw the attention of Court towards cross-examination para 7
of PW-12 in which PW-12 has admitted that there is no entry in Ex.D-9
(station delivery book) regarding sending of copy of F.I.R. No.233/09
--15-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
and F.I.R. No.234/09 between the date 03.08.2009 and 05.08.2009.
(24) We have considered the above argments advanced by the learned
counsel and perused the statement of PW-12. Arvind Tambe, Sub-
inspector (PW-12) has stated in his chief examination para 6 that,
information regarding registration of the crime was sent to the
concerned magistrate on 05.08.2009, which was received by concerning
authority as acknowledgment was present therein. PW-12 has denied in
para 7 of his cross-examination that there is no existence of Dehati
Nalishi (Ex.P-1) and F.I.R. (Ex.P-29) till 05.08.2009. Since, in
continutation of Roznamcha entry Ex.D-7, the Dehati Nalishi (Ex.P-1)
was written on the spot on same day within 02 hours 10 minutes of the
incident and on the basis of Ex.P-1 the F.I.R. (Ex.P-29) was registered
on 04.08.2009 at 22:50 hours. Therefore, it cannot be said that the F.I.R.
(Ex.P-29) is antedated or antitime.
(25) Hon'ble Apex Court has held in case of Sarwan Singh and
others Vs. State of Punjab, AIR 1976 SC, 2304 that "delay in dispatch
of First Information Report to Magistrate is not a circumstance which
can throw out the prosecution case in its entirety".
(26) In case of Anjan Das Gupta Vs. State of West Bengal and
others (2017) 11 SCC 222, Hon'ble Apex Court has reiterated that
"Delay in forwarding F.I.R. to Magistrate is not fatal where
investigation commenced promptly on its basis". Para 22 to 24 of the
above citation are reproduced as below:-
"22. The FIR as well as the inquest report both mentioned
the accused Anjan Dasgupta. The inquest report has not been
--16-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
questioned on any account. The offence, having been
committed at around 4-5 P.M., registration of the FIR at the
police station between 7.30 to 8.00 P.M. does not cause any
reason to draw any adverse inference, more so, when after the
occurrence, the deceased was taken to the nearby nursing
home where he was declared dead and body remained there till
the inquest was over. The another circumstance, which have
been heavily relied by trial court and reiterated before us by
learned counsel for the appellant is dispatch of the FIR to the
Magistrate with delay. This Court in Pala Singh v. State of
Punjab 1972 (2) SCC 640 has held that delay in forwarding
the FIR to court is not fatal in a case in which investigation
has commenced promptly on its basis.
23. The I.O. after receipt of the information of an offence by
R.T. message had arrived at the scene on 17:40 hours, which
clearly proves the prompt commencement of the investigation.
The FIR was dispatched on 22.06.2000 which has also been
accepted by trial court. When no questions were put to IO in
his cross-examination regarding the delay in dispatch, at the
time of hearing, the accused cannot make capital of the said
delay in forwarding the FIR. This Court in Rabindra Mahto
and Another v. State of Jharkhand 2006 (10) SCC 432 has held
that in every case from the mere delay in sending the FIR to
the Magistrate, the Court would not conclude that the FIR has
been recorded much later in time than shown. It is only
--17-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
extraordinary and unexplained delay, which may raise doubts
regarding the authenticity of the FIR.
24. The present is the case, where recording of the FIR on 16th
June, 2000 itself has been proved, accepted by the trial court
also, thus mere dispatch of the FIR on 22nd June, 2000 from
the police station to the Magistrates' Court has no bearing on
the basis of which any adverse presumption can be drawn.
From the above discussion, we are of the clear view that the
FIR was genuine FIR and trial court committed an error in
drawing adverse inference against the prosecution and
refusing to attach value to the FIR.
(27) Looking at the above mentioned facts and citation, the arguments
advanced by the learned counsel for the appellants with regards to non-
compliance of Section 157 of Cr.P.C. is not acceptable.
(28) Ganpat (P.W.4) has stated in his chief examination before the trial
court that on the date of the incident at around 06:00 P.M., he was
returning from his agricultural land, when he heard the gunshot, and
after hearing the same, he went towards where the sound came and he
saw that Rajaram was holding a gun, whereas Modiram was holding a
Dharia, Kailash, Kamal and Modiram S/o Hariram were holding a
Farsi, and Dashrath was carrying a Lathi, while Hariram was unarmed
and Hariram was telling others to kill Nanji, Shriram was crying and
pleading not to kill his father, but the accused persons continued to
assault the deceased Nanji, at the same time, Chainram & Prithviraj
arrived at the spot and when he went to check on Nanji, he found that
--18-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
the accused persons had killed Nanji and fled the scene.
(29) Thus, the statements of Shriram (PW-1) and Prithviraj (PW-2)
was corroborated by Ganpat (PW-4).
(30) Learned counsel for the appellants submitted that PW-1 and PW-
2 are relatives of the deceased and PW-4 is the servant of the deceased
therefore, PW-1, PW-2 and PW-4 are all interested witnesses and there
are severe omissions and contradictions in the statements of the
prosecution witnesses, and trial court failed to consider the above facts,
therefore, conviction based on the statements of PW-1, PW-2 and PW-4
is not legal and is bad in law. In support of his arguments, learned
counsel for the appellants placed reliance on Muluwa S/o Binda and
others Vs. The State of Madhya Pradesh, (1976) 1 SCC 37.
(31) We have considered the above arguments of learned counsel for
the appellants and perused the record and gone through the above
citation and found that the facts of the case in hand are not similar to the
case of Muluwa(supra). In the case of Muluwa (supra), the daughter of
the deceased is claiming to be sole eye witnesses to the murderous
assault on her father and not disclosing after the incident either details
of the incident or names of the assailants to any one, not even her
cousin or the police. In that situation, Hon'ble Apex Court has held that
"her having witnessed the assault is improbable". But, in the case at
hand eye witness-Hariram (PW-1) had described the incidence on the
same day to Prithviraj (PW-2) and Hariram (PW-1) lodged the Dehati
Nalishi (Ex.P-1) to the police on the spot on the date of incident.
Therefore the citation of Muluwa S/o Binda and others Vs. The State
--19-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
of Madhya Pradesh, (1976) 1 SCC, 37 is not helpful for the
appellants.
(32) In case of State of U.P Vs. Krishna Master and others, AIR
2010 SC 3071, Hon'ble the Apex Court has held that-
"(8)....... Minor discrepancies on trivial matters not touching
the core of the case, hyper-technical approach by taking
sentences torn out of context here or there from the evidence,
attaching importance to some technical error committed by the
investigating officer not going to the root of the matter would
not ordinarily permit rejection of the evidence as a whole. If
the court before whom the witness gives evidence had the
opportunity to form the opinion about the general tenor of the
evidence given by the witness, the appellate court which had
not this benefit will have to attach due weight to the
appreciation of evidence by the Trial Court and unless the
reasons are weighty and formidable, it would not be proper for
the appellate court to reject the evidence on the ground of
variations or infirmities in the matter of trivial details. Minor
omissions in the police statements are never considered to be
fatal. The statements given by the witnesses before the Police
are meant to be brief statements and could not take place of
evidence in the court. Small/trivial omissions would not
justify a finding by court that the witnesses concerned are
liars. The prosecution evidence may suffer from
inconsistencies here and discrepancies there, but that is a
short-coming from which no criminal case is free. The main
--20-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
thing to be seen is whether those inconsistencies go to the root
of the matter or pertain to insignificant aspects thereof. In the
former case, the defence may be justified in seeking advantage
of incongruities obtaining in the evidence. In the latter,
however, no such benefit may be available to it. In the
deposition of witnesses, there are always normal
discrepancies, howsoever, honest and truthful they may be.
These discrepancies are due to normal errors of observation,
normal errors of memory due to lapse of time, due to mental
disposition, shock and horror at the time of occurrence and
threat to the life. It is not unoften that improvements in earlier
version are made at the trial in order to give a boost to the
prosecution case albeit foolishly. Therefore, it is the duty of
the Court to separate falsehood from the truth. In sifting the
evidence, the Court has to attempt to separate the chaff from
the grains in every case and this attempt cannot be abandoned
on the ground that the case is baffling unless the evidence is
really so confusing or conflicting that the process cannot
reasonably be carried out."
(33) In case of Ganga Bhavani Vs. Rayapati Venkat Reddy and
others, 2013 Criminal Law Journal (SC) 4618, Hon'ble the Apex Court
has held that:-
(10).........in case there are minor contradictions in the
depositions of the witnesses the same are bound to be ignored
as the same cannot be dubbed as improvements and it is
likely to be so as the statement in the court is recorded after
--21-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
an inordinate delay. In case the contradictions are so material
that the same go to the root of the case, materially affect the
trial or core of the prosecution case, the court has to form its
opinion about the credibility of the witnesses and find out as
to whether their depositions inspire confidence."
(34) In case of State of Karnataka Vs. Suvarnamma and another,
(2015) 1 SCC 323, Hon'ble the Apex Court has held that "though the
investigating agency is expected to be fair and efficient, any lapse on its
part cannot per se be a ground to throw out prosecution case when there
is overwhelming evidence to prove the offence".
(35) In case of Appabhai Vs. State of Gujrat, (1988) SCC
(Criminal) 559, Hon'ble the Apex Court has held that-
"The Court while appreciating the evidence must not attach
undue importance to minor discrepancies. The discrepancies
which do not shake the basic version of the prosecution case
may be discarded. The discrepancies which are due to normal
errors of perception or observation should not be given
importance. The errors due to lapse of memory may be given
due allowance. The Court by calling into aid its vast
experience of men and matters in different cases must evaluate
the entire material on record by excluding the exaggerated
version given by any witness. When a doubt arises in respect
of certain facts alleged by such witness, the proper course is to
ignore that fact only unless it goes into the root of the matter
so as to demolish the entire prosecution story. The witnesses
nowadays go on adding embellishments to their version
--22-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
perhaps for the fear of their testimony being rejected by the
court. The courts, however, should not disbelieve the evidence
of such witnesses altogether if they are otherwise trustworthy."
(36) Therefore, minor contradictions and omissions which are present
in the statement of eye witnesses PW-1, PW-2 and PW-4 are not fatal
for the prosecution because that minor contradictions and omissions did
not damage the root of the prosecution's case.
(37) Now we consider the reliability of the testimony of related or
interested witnesses. In case of Hari Ram Vs. State of U.P, (2004) 8
SCC 146, Hon'ble the Apex Court has held that-
"(22) As observed by this Court in State of Rajasthan v. Teja
Ram and Ors., the over-insistence on witnesses having no
relation with the victims often results in criminal justice going
away. When any incident happens in a dwelling house or
nearby the most natural witnesses would be the inmates of that
house. It would be unpragmatic to ignore such natural
witnesses and insist on outsiders who would not have even
seen any thing. If the Court has discerned from the evidence or
even from the investigation records that some other
independent person has witnessed any event connecting the
incident in question then there is justification for making
adverse comments against non-examination of such person as
prosecution witness. Otherwise, merely on surmises the Court
should not castigate a prosecution for not examining other
persons of the locality as prosecution witnesses. Prosecution
can be expected to examine only those who have witnessed
--23-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
the events and not those who have not seen it though the
neighbourhood may be replete with other residents also."
(38) In case of Ganga Bhavani Vs. Rayapati Venkat Reddy and
others, 2013 Criminal Law Journal (SC) 4618, Hon'ble the Apex Court
has held that:-
11. It is a settled legal proposition that the evidence of closely
related witnesses is required to be carefully scrutinised and
appreciated before any conclusion is made to rest upon it,
regarding the convict/accused in a given case. Thus, the
evidence cannot be disbelieved merely on the ground that the
witnesses are related to each other or to the deceased. In case
the evidence has a ring of truth to it, is cogent, credible and
trustworthy, it can, and certainly should, be relied upon.
14. In view of the above, it can safely be held that natural
witnesses may not be labelled as interested witnesses.
Interested witnesses are those who want to derive some
benefit out of the litigation/case. In case the circumstances
reveal that a witness was present on the scene of the
occurrence and had witnessed the crime, his deposition
cannot be discarded merely on the ground of being closely
related to the victim/deceased.
(39) In case of Birender Poddar Vs. State of Bihar, (2011) 6 SCC
350, Hon'ble the Apex Court has held that:-
"(13) ..............we find that the law is well-settled
that merely because the witnesses are related is not a ground
to discard their evidence. On the other hand, the court has
--24-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
held that in many cases, the relations are only available for
giving evidence, having regard to the trend in our present
society, where other than relations, witnesses are not
available. It is of course true that the evidence of the
interested witnesses have to be carefully scrutinized. "
(40) In the light of the above well settled principle of law, the
statements of PW-1, PW-2 and PW-4, are not liable to be discarded on
the sole basis that PW-1 is the son, PW-2 is the brother and PW-4 is the
servant of the deceased.
(41) Learned counsel for the appellants submits that as per the
prosecution case and as per the statement of Shriram(PW-1), he had
been to the place of the occurrence along with his father deceased-
Nanji to check on the Soyabean crops but at the time of the incident, in
the disputed agricultural land, there were no crop of Soyabean, as the
site plan(Ex.D-4) prepared by Patwari- Kamaldeep(PW-6) which was
prepared at the instance of Shriram(PW-1). In this respect learned
counsel for the appellants placed reliance on the citation of Vijay Singh
Vs. State of Madhya Pradesh, 2005 (Criminal Law Journal) 299
(M.P. High Court).
(42) We have perused the site plan(Ex.D-4) prepared by Patwari-
Kamaldeep(PW-6) which was prepared at the instance of Shriram(PW-
1) and perused the site plan (Ex.P-4) prepared by Arvind Tambe, Sub-
inspector (PW-12) at the instance of Shriram (PW-1). In site plan (Ex.P-
4) at serial No.4, it is mentioned that "disputed land relates to deceased
Nanji which was purchased from Rajaram Jaat and there is Soyabean
--25-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
crop". Therefore, it cannot be said that there was no Soyabean crop on
the agricultural land for which PW-1 has said that on the date of
incident he had been to the place of the occurrence along with his father
deceased- Nanji to check on the Soyabean crops.
(43) Learned counsel for the appellants submits that the trial court has
overlooked the statement of Dr. B.B. Purohit (PW-5), who has stated in
the postmortem report and in his deposition before the trial court that
the alleged gun-shot injuries were post-mortem and not anti-mortem
and submits that to create false evidence and to implicate appellant
Rajaram falsely in the case, complainant party fired a gun-shot on the
dead body of deceased. Therefore the prosecution case is doubtful
against the appellants. In support of his argument learned counsel for
the appellants placed reliance on the citation of Samarjeet Singh and
another Vs. State of Madhya Pradesh, [2012 Criminal Law
Reporter (M.P.) 753].
(44) We have perused the statement of Dr. B.B. Purohit (PW-5) and
impugned judgment. Learned trial court has dealt with that contention
in para 48 to para 51 of the impugned judgment and trial court has held
that under the facts and circumstance of the case it is not believable that
the near relative of the deceased has fired a gun to create the evidence
and we found the above conclusion of trial court is not perverse.
(45) Learned counsel for the appellants submits that as per the
prosecution case, the appellant- Dasrath was armed with Lathi but, there
are no injuries caused using Lathi on the body of the deceased Nanji,
therefore, appellant-Dasrath has been falsely implicated in the case.
--26-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
(46) We have perused the record and impugned judgment of trial
court. As per the disclosure statement of appellant -Dasrath (Ex.P-15)
on the instance of Dasrath and wooden stick (Art.-L) was seized from
appellant-Dasrath as per seizure memo Ex.P-20 and seized articles
including Art.-L were sent for chemical examination to FSL, Sagar as
per draft Ex.P-39 and to FSL, Sagar and report (Ex.P-40) has been
received and blood was found on wooden stick (Art.-L). Learned trial
court has dealt with that contention in para 64 of the impugned
judgment and trial court has held that various incised injuries were on
the body of the deceased and in that situation it may be possible to
oversight the injuries caused by blunt object and under the
circumstances of the case, statement of eye witnesses could not be
disbelieved. The above conclusion of the trial court is not found
perverse.
(47) Learned counsel for the appellants submits that no human blood
was found on Dharia(Art.-H) seized from the accused/appellant -
Modiram s/o Gangaram, Farsi (Art.-J) seized from appellant-Kailash,
Laathi (Art.-L) seized from appellant - Dasrath and Farsi (Art.-M)
seized from the appellant Modiram s/o Hariram and nor any human
blood was found on the clothes of appellant - Modiram s/o Gangaram
and clothes of appellant- Kailash, which were seized from appellants-
Modiram s/o Gangaram and Kailash and submits that appellants were
falsely implicated in the case. In this respect, learned counsel for the
appellants has placed reliance on the citation of Raghuveer Singh and
others Vs. State of M.P. 2018 (3) MPLJ (Cri.) 82.
--27-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
(48) We have perused the FSL report (ExP-41) and gone through the
citation placed by the learned counsel of the appellants and found that
in the case of Raghuveer Singh(supra) no blood-stains was found on
the seized weapons Art.-E, Art.-F and Art.-G and Stick Art.-D on which
blood stains were found and seized from the spot, but that that articles
were not sent for the chemical examination and no explanation has been
offered in that regard, therefore it was held that the prosecution case
becomes doubtful. However, in the present case in the hand blood
stained weapons and blood stained clothes were sent for chemical
examination as per draft(ExP-39) to FSL Sagar and report ExP-41 has
been received and the blood was present on Dharia, Farsi and Laathi
Art.- H, J, L and M, therefore the aforementioned citation extends no
benefit to the appellants.
(49) Learned counsel for the appellants submits that Prithviraj (PW-2)
was the chance witness who was interested in creating false evidence as
he gave an application (Ex.P-5) to police officer that in place of
Badnagar, the dead-body of Nanji is to be sent to Ujjain for
postmortem, therefore, Prithviraj (PW-2) has created false evidence
about injuries.
(50) We have considered the arguments advanced by the learned
counsel for the appellants and perused the documents (Ex.P-5). The
contents of Ex.P-5 is reproduced as below:-
"lsok esa fuosnu gS fd vkt fnukad [email protected]@2009
dh 'kke xkWo [k.Mksnk ds ikl esa esjs HkkbZ Jh ukuth s/o
Jh j.kNksM+ th dh gR;k dj nh xbZ gS ftlesa dkQh xgjh
--28-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
pkSVs vkbZ gS] tks /kkjnkj gfFk;kj rFkk cUnwd ls igWqpkbZ xbZ
gS bl dkj.k ftyk fpfdRlky; mTtSu esa QksjsUlhd
,DliVZ MkW- fd Vhe ls iksLVekVZe djok;k tk,A
;fn cM+uxj fpfdRlky; esa iksLVekVZe djok;k
tkrk gS rks eq>s rFkk esjs ifjokj dks vk'kadk gS] fd
jktUkSfrd ncko ds dkj.k rFkk lk/kkj.k MkW- mfpr
vksfifu;u nsus esa vleFkZ jgsaxs rFkk ftlds dkj.k esjs
ifjokj dks mfpr U;k; ugha ehy ik;sxkA"
(51) The contents of Ex.P-5 reveals that the Prithviraj (PW-2) had
apprehensions that due to political pressure, a single doctor will not be
able to give a proper opinion regarding the injuries and cause of death
and for such reason, he prayed for postmortem to be conducted by the
team of forensic experts of District Hospital, Ujjain, therefore, from the
above facts and circumstances, it cannot be said that the request for
conducting postmortem of the deceased at Distt. Hospital Ujjain was
only to create the false evidence.
(52) It was suggested in the cross-examination para-14 and para-28 of
Hariram(PW-1) that on the date and time of the incident the appellant
Modiram s/o Hariram, Rajaram, Dasrath and Kamal were not present
but they were at another place which was denied by the PW-1. Similarly
in cross-examination of Prithviraj(PW-2) para-21, 33 and 34 it was
suggested that that on the date and time of the incident the appellant
Modiram s/o Hariram, Rajaram, Dasrath, Kailash and Kamal were not
present but they were at another place which was denied by the PW-2.
No evidence has been produced by the appellants to prove the plea of
--29-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
alibi. Therefore, it is not proved that at the time of incident appellants
were not on the spot.
(53) Motive to commit murder of "Nanji" by the appellants is also
proved in the case. In that regard Hariram (PW-1) has stated in para-2
and 3 of his chief-examination before the trial court that his father has
purchased 06 Bigha land from "Rajaram Jaat" and sale deed was
executed in the name of his mother and on the said purchased land the
crop of soybean was sown and after that when he and his father (now
deceased) went to the said agricultural land, Modiram s/o Gangaram
and Kailash s/o Gangaram threatened to kill him saying that "the farm
belonged to them and if they (Hariram and his father) return, they
(Modiram and Kailash both S/o Gangaram) will kill." Above facts were
also mentioned in the Dehati Nalsi(ExP-1). It was suggested in cross-
examination of PW-1 in para-17 that Modiram and Kailash are in
possession of the land of Gangaram which was denied by PW-1. It is
pertinent to mention here that all the appellants to the case belong to
same family, therefore, motive to cause murder of deceased Nanji was
present in the case.
Conclusion
(54) In view of the foregoing discussion, the prosecution has
successfully proved its case by cogent and reliable oral and
documentary evidence to establish the culpability of appellants of Cr.A.
No.1150/2012 - (1) Dashrath S/o Hariram (2) Rajaram @ Radhakishan
S/o Hariram and (3) Modiram S/o Hariram and appellants of Cr.A.
No.1165/2012 - (1) Modiram S/o Gangaram (2) Kailash S/o Gangaram
--30-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
and (3) Kamal @ Sandeep S/o Modiram. Hence, we hereby confirm the
conviction and sentence of appellants - (1) Dashrath S/o Hariram (2)
Rajaram @ Radhakishan S/o Hariram and (3) Modiram S/o Hariram in
Cr.A. No.1150/2012 and appellants - (1) Modiram S/o Gangaram (2)
Kailash S/o Gangaram and (3) Kamal @ Sandeep S/o Modiram in
Cr.A. No.1165/2012 in murder of deceased "Nanji".
(55) As far as the acquittal of Hariram (respondent of Cr.A.
No.985/2014) is concerned, as per material placed on record, there is no
evidence on record that Hariram has performed any overt act to cause
the death of deceased "Nanji'. Merely the fact that he was present on
the spot and saying to other accused persons that "Isko Maar Daalo
Bach Naa Paaye". The learned trial court has dealt with that contention
in para 65 of the impugned judgment and extend the benefit of doubt to
accused Hariram and acquitted him.
(56) In the case of State of Rajasthan Vs. Sohanlal and others, (2004)
5 Supreme Court Cases 573, the Hon'ble Apex Court has held in para
3 as under:-
"We have carefully considered the submissions of the learned
counsel appearing on either side. This Court in JT (2004) 2
SC 172: the State of Orissa v. Dhaniram Luhar, has while
reiterating the view expressed in the earlier cases for the past
two decades emphasized the necessity, duty and obligation of
the High Court to record reasons in disposing of such cases.
The hall mark of a judgment/order and exceted of judicial
power by a judicial forum is to disclose the reasons for its
--31-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
decision and giving of reasons has been always insisted upon
as one of the fundamentals of sound administration justice
delivery system, to make known that there had been proper
and due application of mind to the issue before the Court and
also as an essential requisite of principles of natural justice.
The fact that the entertaining of an appeal at the instance of
the State against an order of acquittal for an effective
consideration of the same on merits is made subject to the
preliminary exercise of obtaining of leave to appeal from the
High Court, is no reason to consider it as an appeal of any
inferior quality or grade, when it has been specifically and
statutorily provided for or sufficient to obviate and dispense
with the obvious necessity to record reasons. Any judicial
power has to be judiciously exercised and the mere fact that
discretion is vested with the court/forum to exercise the same
either way does not constitute any licence to exercise it at
whims or fancies and arbitrarily as used to be conveyed by
the well known saying - 'varying according to the chancellors
foot. Arbitrariness has been always held to be the anathema
of judicial exercise of any power, all the more so when such
orders are amenable to challenge further before higher
forums. The State does not in pursuing or conducting a
criminal case or an appeal espouses any right of its own but
really vindicate the cause of society at large, to prevent
recurrence as well as punish offences and offenders
respectively, in order to preserve orderliness in society and
--32-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
avert anarchy, by upholding rule of law. The provision for
seeking leave to appeal is in order to ensure that no frivolous
appeals are filed against orders of acquittal, as a matter of
course, but that does not enable the High Court to
mechanically refuse to grant leave by mere cryptic or
readymade observations, as in this case, (the court does not
find any error), with no further on the face of it, indication of
any application of mind whatsoever. All the more so when
the orders of the High Court are amenable for further
challenge before this Court. Such ritualistic observations and
summary disposal which has the effect of, at times, and as in
this case, foreclosing statutory right of appeal, though a
regulated one cannot be said to be a proper and judicial
manner disposing of judiciously the claim before courts. The
giving of reasons for a decision is an essential attribute of
judicial and judicious disposal of a matter before courts, and
which is the only indication to know about the manner and
quality of exercise undertaken, as also the fact that the court
concerned had really applied its mind. All the more so, when
refusal of leave to appeal has the effect of foreclosing once
and for all a scope for scrutiny of the judgment of the trial
court even at the instance and hands of the First Appellate
Court. The need for recording reasons for the conclusion
arrived at by the High Court, to refuse to grant leave to
appeal, in our view, has nothing to do with the fact that the
appeal envisaged under Section 378 Cr.P.C. is conditioned
--33-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
upon the seeking for and obtaining of the leave from the
court. This court has repeatedly laid down that as the
First Appellate Court the High Court even while dealing
with an appeal against acquittal was also entitled and
obliged as well to scan through and if need be
reappreciate the entire evidence, though while choosing to
interfere only the court should find an absolute assurance
of the guilt on the basis of evidence on record and not
merely because the High Court could take one more
possible or a different view only. Except the above, in the
matter of the extend and depth of consideration of the
appeal is concerned, no distinctions or differences in
approach are envisaged in dealing with an appeal as such
merely because one was against conviction or the other
against an acquittal."
(57) In the case of Gangabhavani Vs. Rayapati Ventak Reddy, 2013
(Criminal Law Journal) 4618 Supreme Court, the Hon'ble Apex
Court has held as under:-
"6. This Court has persistently emphasised that there are
limitations while interfering with an order against acquittal.
In exceptional cases where there are compelling
circumstances and the judgment under appeal is found to be
perverse, the appellate court can interfere with the order of
acquittal. The appellate court should bear in mind the
presumption of innocence of the accused and further that the
--34-- Cr.A. No.1150/12, Cr.A. No.1165/12
& Cr.A. No.985/14
acquittal by the lower Court bolsters the presumption of his
innocence. Interference in a routine manner where the other
view is possible should be avoided, unless there are good
reasons for interference."
(58) After going through the impugned judgment and record of the
trial court, we are of the opinion that the trial court has considered the
oral and documentary evidence placed before them and considered the
legal provisions of law and principles laid down by the Hon'ble Apex
Court. With aforesaid discussion and principles laid down by the
Hon'ble Apex Court as mentioned above, we are of the opinion that no
interference is required regarding acquittal of Hariram by trial court.
(59) Accordingly, we dismiss Cr.A. No.985/2014 filed by the State of
Madhya Pradesh and also dismissed Cr.A. No.1150/2012 filed on behalf
of appellants - (1) Dashrath S/o Hariram (2) Rajaram @ Radhakishan
S/o Hariram and (3) Modiram S/o Hariram and Cr.A. No.1165/2012
filed on behalf of appellants - (1) Modiram S/o Gangaram (2) Kailash
S/o Gangaram and (3) Kamal @ Sandeep S/o Modiram.
(60) Let a copy of this judgment with record of the court below be
sent to the concerned trial court for information and compliance.
(VIVEK RUSIA ) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
N.R.
Digitally signed by
NARENDRA KUMAR
RAIPURIA
Date: 2022.10.13
18:31:39 +05'30'
