Madhya Pradesh High Court
Umesh Sihote Alias Teepu vs State Of M.P. on 20 February, 2023
Author: Virender Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 1330 of 2022
(SHIBBU @ TAUFIQ AHMED AND OTHERS Vs THE STATE OF MADHYA PRADESH)
CRA No. 1162 of 2022
(RAHUL @ TULSIRAM AND ANOTHER Vs THE STATE OF MADHYA PRADESH)
CRA No. 1718 of 2022
(UMESH SIHOTE ALIAS TEEPU Vs THE STATE OF MADHYA PRADESH)
Dated : 20-02-2023
Per Virender Singh, J.
Shri Anil Khare - Senior Advocate with Shri Priyank Agrawal
for the appellants in CRA No.1330 of 2022.
Shri Ashish K. Tiwari - Advocate for the appellant in CRA
No.1162 of 2022.
Ms. Anita Kaithwas - Advocate for the appellant in CRA
No.1718 of 2022.
Shri Piyush Jain, Govt. Advocate for the respondent/State.
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Heard on :
(i) I.A. No.3409/2022 which is an application filed under
Section 389(1) of CrPC for suspension of sentence on behalf of all the
applicants No.1 to 6 namely Shibbu @ Taufiq Ahmed, Lallu @ Ashok,
Shashikant @ Shashik, Sikander Pathrot, Suresh @ Gora and Sonu @
Sohan in CRA No.1330/2022.
(ii) I.A. No.1849/2022 which is an application filed under
Section 389(1) of CrPC for suspension of sentence on behalf of both
the applicants No.1 and 2 namely Rahul @ Tulsiram and Rahul @
Nitin @ Binti in CRA No.1162/2022.
Signature Not Verified
Signed by: VINOD
VISHWAKARMA
Signing time: 2/21/2023
10:14:39 AM
(iii) I.A. No.2924/2022 and I.A. No.13614/2022 which are
applications filed under Section 389(1) of CrPC for suspension of
sentence on behalf of applicant No.2 Sanjay @ Sonu Sihote and
applicant No.1 Umesh Sihote @ Teepu respectively in CRA
No.1718/2022.
2. Leading the arguments, learned Senior Counsel Shri Khare
founded his submissions around the fact that in their deferred cross-
examination which was recorded after about four years of recording of
their examination-in-chief, star witnesses of prosecution viz. Vishal
(PW1), Bhupendra (PW3) and Lokesh (PW5) have entirely not
corroborated the prosecution case and the accused-applicants cannot be
faulted with for this deferment as that was deferred by the trial Court
while considering their (applicants') application under Section 231 of
CrPC to grant them permission to cross-examine all the eyewitnesses
together. Shri Khare further referred to the several paragraphs of cross-
examination of aforesaid eyewitnesses and placed reliance upon the
decisions rendered in State of Kerala vs Rasheed (2019) 13 SCC
297, Vikramjit Singh @ Vicky vs State of Punjab (2006) 12 SCC
306 and Babbu alias Babulal vs State of M.P. 1999 SCC Online MP
3. In the judgment of Rasheed (supra), the Apex Court, in para 23,
explained the factors to be kept in mind while considering an
application under Section 231(2) of CrPC. The said para reads thus -
23. While deciding an application under Section 231(2)
CrPC, a balance must be struck between the rights of the
accused, and the prerogative of the prosecution to lead
evidence. The following factors must be kept in consideration:
(i) possibility of undue influence on witness(es);
(ii) possibility of threats to witness(es);
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Signed by: VINOD
VISHWAKARMA
Signing time: 2/21/2023
10:14:39 AM
(iii) possibility that non-deferral would enable subsequent
witnesses giving evidence on similar facts to tailor their
testimony to circumvent the defence strategy;
(iv) possibility of loss of memory of the witness(es) whose
examination-in-chief has been completed;
(v) occurrence of delay in the trial, and the non-
availability of witnesses, if deferral is allowed, in view of
Section 309(1) CrPC. These factors are illustrative for guiding
the exercise of discretion by a Judge under Section 231(2)
CrPC.
4. In the judgment of Vikramjit Singh @ Vicky and Babbu @
Babulal (above), the Apex Court as well as learned Single Judge of
this Court considering hostility of the star witnesses after supporting
the prosecution case in the examination-in-chief opined that when two
views are possible, the view favourable to the accused has to be
followed. Shri Khare referred to paragraphs 8, 12, 15 & 22 of
Vikramjit Singh's case and para 9 of Babbu @ Babulal (above).
5. Arguments advanced by learned counsel representing the other
applicants are more or less the same except that applicants namely
Shibbu @ Taufiq, Sikandar Pathrot, Suresh @ Gora, Sonu @ Sohan
and Rahul Pathrot are not named in the FIR.
6. The prosecution has opposed the applications.
7. We have heard the rival parties at length and perused the record.
8. The incident, the assault, the injuries to the deceased as well as
to the star witnesses viz. Vishal (PW1), Bhupendra (PW3) and Lokesh
(PW5) so also their presence on the spot has not been disputed. In their
examination-in-chief, all three eyewitnesses named supra have entirely
supported the incident as well as involvement of the accused applicants
in the alleged incident. Their deferred cross-examination was recorded
after about four years. Careful reading of their cross-examination
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Signed by: VINOD
VISHWAKARMA
Signing time: 2/21/2023
10:14:39 AM
reflects that no cause, or to more precisely say, just and proper cause
has been assigned by them for taking a U-turn. In their deferred cross
examination, the said witnesses have stated that they were at some
distance and due to dark, they could not identify the assailants but
unchallenged prosecution case is that before assault, the assailants had
a talk with the author of the FIR viz. Lokesh (PW5) and that most of
them either belong to the same locality or were known to the witnesses
even prior to the incident. Lokesh (PW5) has also deposed on this fact
in the Court and his testimony on this point has not been substantially
challenged.
9. It was a preplanned or premeditated attack made with full
preparation and intention to dissuade the complainant to disclose truth
before the Court. They committed another offence to screen the
offenders from legal punishment for some crime committed earlier.
10. To better understand as to how to deal with such a situation, in
this regard, we would like to refer to the landmark decision rendered in
Khujji vs. State of M.P., (1991) 3 SCC 627, para 6 whereof is most
relevant wherein the Supreme Court has dealt with almost similar
situation as exists in the present case. Para 6 reads thus -
"6. We have given our anxious consideration to the
submissions made by the learned counsel for the contesting
parties. The fact that an incident of the type alleged by the
prosecution occurred on May 20, 1978 at about 8.20 p.m. is
not seriously disputed nor is the location of the incident
doubted. The evidence of PW 3 Kishan Lal and PW 4 Ramesh
came to be rejected by the trial court because they were
declared hostile to the prosecution by the learned Public
Prosecutor as they refused to identify the appellant and his
companions in the dock as the assailants of the deceased. But
counsel for the State is right when he submits that the
evidence of a witness, declared hostile, is not wholly effaced
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Signed by: VINOD
VISHWAKARMA
Signing time: 2/21/2023
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from the record and that part of the evidence which is
otherwise acceptable can be acted upon. It seems to be well
settled by the decisions of this Court -- Bhagwan Singh v.
State of Haryana (1976) 1 SCC 389, Rabindra Kumar Dey v.
State of Orissa (1976) 4 SCC 233 and Syad Akbar v. State of
Karnataka (1980) 1 SCC 30 - that the evidence of a
prosecution witness cannot be rejected in toto merely because
the prosecution chose to treat him as hostile and cross-
examined him. The evidence of such witnesses cannot be
treated as effaced or washed off the record altogether but the
same can be accepted to the extent their version is found to be
dependable on a careful scrutiny thereof. In the present case
the evidence of the aforesaid two eye-witnesses was
challenged by the prosecution in cross-examination because
they refused to name the accused in the dock as the assailants
of the deceased. We are in agreement with the submission of
the learned counsel for the State that the trial court made no
effort to scrutinise the evidence of these two witnesses even in
regard to the factum of the incident. On a careful
consideration of their evidence it becomes crystal clear that
PW 4 had accompanied the deceased in PW 3's rickshaw to
the place of incident. In the incident that occurred at the
location pointed out by the prosecution, PW 4 sustained an
injury. His presence in the company of the deceased at the
place of occurrence, therefore, cannot be doubted.
Immediately after the incident within less than an hour thereof
PW 4 went to the police station and lodged the first
information report. It is true that the first information report is
not substantive evidence but the fact remains that immediately
after the incident and before there was any extraneous
intervention PW 4 went to the police station and narrated the
incident. The first information report is a detailed document
and it is not possible to believe that the investigating officer
imagined those details and prepared the document Ex. P-3.
The detailed narration about the incident in the first
information report goes to show that the subsequent attempt of
PW 4 to disown the document, while admitting his signature
thereon, is a shift for reasons best known to PW 4. We are,
therefore, not prepared to accept the criticism that the version
regarding the incident is the result of some fertile thinking on
the part of the investigating officer. We are satisfied, beyond
any manner of doubt, that PW 4 had gone to the police station
and had lodged the first information report. To the extent he
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VISHWAKARMA
Signing time: 2/21/2023
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has been contradicted with the facts stated in the first
information report shows that he has tried to resile from his
earlier version regarding the incident. So also the presence of
PW 3 at the scene of occurrence cannot be doubted once the
presence of PW 4 is accepted. The trial court did not go so far
as to say that both these witnesses were not present at the
scene of occurrence or that PW 4 was not injured in the
incident but refused to look into their evidence treating their
evidence as non-est on their being declared hostile by the
prosecution. We think that the approach of the trial court
insofar as the evidence of these two witnesses is concerned, is
legally unacceptable. The High Court has not endeavoured to
assess their evidence since it thought that the conviction of the
appellant could be sustained on the evidence of PW 1 Komal
Chand. We are satisfied on a close scrutiny of the evidence of
the aforesaid two eye-witnesses, PWs 3 and 4, that the
deceased and PW 4 came to the place of occurrence in the
rickshaw pulled by PW 3. On reaching the spot where the
incident occurred they were surrounded by certain persons
who were lying in wait and a murderous assault was launched
on them. The first to receive the injury was PW 4. When they
gauged the intention of their assailants they jumped out of the
rickshaw and both ran in different directions. The appellant
first tried to chase PW 4 but later he turned to the deceased as
he was informed by one of his companions Gopal that the
person he was pursuing was not Gulab. Therefore, from the
evidence of these two eye-witnesses the fact that the deceased
and PW 4 came to the place of occurrence in the rickshaw of
PW 3 is established. So also the fact that on their reaching the
place of occurrence they were surrounded by some persons
and an assault was launched on them in which PW 4 received
an injury and Gulab died is clearly established. The only area
where they have not supported the prosecution and have
resiled from their earlier statements is regarding the identity of
the assailants. We will deal with that part of the evidence a
little later but the fact remains that the deceased had received
three injuries as narrated by PW 12 Dr Nagpal, to which he
succumbed on the spot. Once these facts are accepted as
proved, the only question which really survives for
consideration is whether the appellant was an assailant of the
deceased."
Signature Not Verified
Signed by: VINOD
VISHWAKARMA
Signing time: 2/21/2023
10:14:39 AM
11. The judgment of Khujji (supra) has not been considered in both
the decisions (Vikramjit and Babbu [above]) referred to by the ld.
Senior Counsel and we have noticed that both the decisions referred to
by the applicants are clearly distinguishable on facts.
12. Upon consideration of the evidence produced by the prosecution
before the trial Court as well as the peculiar facts and circumstances
pointed out by the respective counsel of the different applicants, we are
of the considered view that no case of suspension of sentence in favour
of any of the applicants is made out.
13. Consequently, all the aforesaid I.As are rejected.
(Sheel Nagu) (Virender Singh)
JUDGE JUDGE
vinod
Signature Not Verified
Signed by: VINOD
VISHWAKARMA
Signing time: 2/21/2023
10:14:39 AM
