Madhya Pradesh High Court
Manoj vs The State Of Madhya Pradesh on 30 May, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 30 th OF MAY, 2024
CRIMINAL APPEAL No. 2658 of 2019
BETWEEN:-
ARJUN S/O SHRIRAM UIKEY, AGED ABOUT 25 YEARS,
OCCUPATION: LABOUR SANJAY COLONY BETUL AT
PRESENT VILLAGE BHARBHARTI P.S. BETUL TEHSIL
AND DISTRICT BETUL (MADHYA PRADESH)
.....APPELLANT
(NONE FOR THE APPELLANT THUS SHRI VIVEK AGRAWAL - AMICUS
CURIAE)
AND
THE STATE OF MADHYA PRADESH THROUGH P.S.
BETUL, DISTRICT BETUL (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI NITIN GUPTA - DEPUTY GOVERNMENT ADVOCATE)
CRIMINAL APPEAL No. 15840 of 2023
BETWEEN:-
MANOJ S/O JEEVATU GOND, AGED ABOUT 35 YEARS,
R/O GRAM GONDIGAULA AT PRESENT R/O
BHARATBHARTI THANA BETUL TEHSIL DISTRICT
BETUL (MADHYA PRADESH)
.....APPELLANT
(BY SHRI VIVEK AGRAWAL - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION BETUL DISTRICT BETUL (MADHYA PRADESH)
Signature Not Verified
Signed by: VAIBHAV
YEOLEKAR
Signing time: 31-05-2024
18:14:24
2
.....RESPONDENT
(BY SHRI NITIN GUPTA - DEPUTY GOVERNMENT ADVOCATE)
These appeals coming on for orders this day, Justice Vivek Agarwal
passed the following:
ORDER
With the consent of the parties, heard finally.
Shri Vivek Agrawal, learned counsel is appointed as Amicus Curiae on
behalf of appellant Arjun. He will be entitled to fees from the Legal Aid for
contesting the case on behalf of appellant Arjun.
These appeals are filed by appellant Arjun and Manoj being aggrieved of
the judgment dated 29/12/2018 passed by the learned IIIrd Additional Sessions
Judge, District Betul in S.T. No. 05/2017.
Shri Vivek Agrawal, learned counsel for the appellants submits that it is a
case of false implication. As per Dehati Nalishi Ex. P-1, Chhotu (PW-3), had
given intimation to Sangeeta Uike (PW-1), that when he was returning from his
field after performing worship of Dada Pannu Bhalavi, then Hansraj and Chhotu
had stayed back at the house of Shivvati. Hansraj (deceased) had asked
Sangeeta (PW-1), to go home and prepare meals.
When the unfortunate incident took place on 30/10/2016, her brother
Chhotu came running and informed her that near the house of Shivvati, Hansraj
was caught hold by Arjun and Manoj had stabbed him on left hand side of
chest and stomach and, thereafter, they ran away.
It was informed that Hansraj was lying in a pool of blood. She came
running on the spot, where with the help of Monu (PW-2) and Joshu (PW-10),
she had picked Hansraj and brought him home, then informed the police about
the incident over telephone. On the basis of her intimation, Dehati Nalishi Ex.
P-1, was recorded, and, on the basis of Dehati Nalishi, Crime No. 1043/16 was
registered at Kotwali Betul, under Section 307 read with Section 34 of I.P.C.
A copy of the F.I.R. is Ex. P-20. On 30/10/2016 in the District Hospital,
M.L.C. Ex. P-10 of injured Hansraj was prepared. On the same date, he died
when Duty Doctor Ashok Kumar had given intimation to the Chowki incharge,
Police Chowki at District Hospital, Betul vide letter Ex. P-18.
On the basis of said communication made by Dr. Ashok Kumar,
intimation was registered at zero, vide Ex. P-15, and, thereafter on the basis of
this Ex. P-15, Kotwali Betul had registered Merg No. 135/16 under Section 174
Cr.P.C. which is Ex. P-21. Spot Map Ex. P-3, was prepared on 31/10/2016,
and the postmortem report Ex. P-11 was received in regard to deceased
Hansraj.
Wife of deceased, Sangeeta Uike (PW-1) had produced the Jeans of the
deceased which was seized vide Ex. P-5, and then crime detail Ex. P-6 was
prepared. Thereafter, blood soaked soil and simple soil were recovered from
the spot of the incident and the seizure memo Ex. P-8 was prepared on
2/11/2016. Accused Manoj was taken in custody and on his statement Ex. P-
14, a knife was recovered vide seizure memo Ex. P-15. The arrest memo of
accused Manoj and Arjun is Ex. P-16 and P-17. The knife, clothes, blood
stained soil and simple soil was sent to the Forensic Science Laboratory,
Bhopal for examination and, thereafter, on completion of the investigation, a
challan was filed before the Chief Judicial Magistrate, Betul on 9/12/2016 under
Sections 307, 302 read with Section 34 of I.P.C.
On committal from the court of Chief Judicial Magistrate, Betul on
26/12/2016, matter was presented to the Sessions Court where the trial
commenced on 9/01/2017.
It is submitted that there are three so called eye-witnesses namely Chhotu
Bhalavi (PW-3). Chhotu Bhalavi is the person who had given intimation to his
sister Sangeeta Uike (PW-1), wife of the deceased, but in the cross-
examination, he has admitted that he had not seen Manoj and Arjun at the place
of incident. In the cross-examination, he admitted that Manoj had not stabbed
Hansraj in front of him, nor Arjun had caught hold of him. He admitted that
there was some distance between the Basti and the house is at some distance
from Nullah. He further admitted in his cross-examination carried out on behalf
of Manoj, that he had seen the injuries of Hansraj, while he was taken to
hospital. He has admitted that it was dark at the place of the incident. He
further admitted that the place where he was bursting crackers, from that place,
the place of incident was not visible.
He further admitted in his cross-examination that when he reached the
place of incident, it was already crowded. He further admitted that at the place
of incident, he had not seen his brother-in-law Hansraj and the accused persons.
Another witness is Monu Parte (PW-2), aged about 16 years. In the
cross-examination, Monu Parte categorically deposed that Manoj had not
stabbed Hansraj in front of him, nor Arjun had caught hold of Hansraj. This
witness further admits that the place from where they were bursting crackers,
the place of incidence was not visible. He further admitted that the place of
incidence was in dark. He admitted that he had reached the place of incidence
after Sangeeta, Savita and Chhotu had reached. He further admitted that he had
not seen the accused persons at the place of the incidence.
Similarly, it is submitted that third person who has been mentioned as
eye-witness is Joshu @ Umesh (PW-10). His presence is not mentioned in the
Dehati Nalishi Ex. P-1, thus this witness too is a planted witness. It is submitted
that this witness admitted that after hearing the talk of altercation and hearing the
voice, he had gone to inform his mother about the incident. He has admitted in
para 4 of his cross-examination that when he had gone to bring Bidis for his
father, that time, there was crowd at the place of the incidence. He had seen
deceased Hansraj lying on the surface. When he had returned back with bidi,
that time he has admitted that accused persons were not there and they had run
away.
He has also admitted that the place of incidence is not visible from his
house due to construction of Bagad (fencing).
Reading from the evidence of PW-8 Ku. Savita, it is submitted that
though in the examination-in-chief, when she had reached the place of
incidence, she had seen accused Arjun holding her brother-in-law Hansraj but
she had not seen Manoj because Manoj had run away.
In the cross-examination, she has admitted that the accused had not
caused any injuries in front of her. She further admitted that she had not seen
the accused persons at the place of incidence and it is also true that she had not
seen any injuries on the body of Hansraj. She also admitted that there was no
past enmity between Hansraj and the accused persons.
In view of such facts, it is submitted that conviction of the appellants is
uncalled for and deserves to be set aside.
Shri Nitin Gupta, learned Public Prosecutor in his turn supports the
judgment of conviction and sentence and submits that it is evident from Dehati
Nalishi Ex. P-1, that without wasting any time that was lodged and in the Dehati
Nalishi, names of Arjun and Manoj are mentioned. Therefore, the promptness
with which Dehati Nalishi Ex. P-1, was lodged mentioning of names of Arjun
and Manoj, gives credibility, to the prosecution story.
After hearing learned counsel for the parties and going through the
record, it appears from Dehati Nalishi Ex. P-1, that the only eye-witness to the
incident was Chhotu (PW-3). It was Chhotu who had given information to the
author of Dehati Nalishi namely Sangeeta PW-1.
All others namely Monu Parte (PW-2), Joshu (PW-10) and Ku. Savita
(PW-8) being related witnesses to the deceased and the complainant have been
planted subsequently.
As far as evidence of Chhotu (PW-3) is concerned, he was a student of
VIIIth class. The court was satisfied with the level of his I.Q. to take his
evidence independently.
In cross-examination on behalf of accused Arjun, PW-3 Chhotu admitted
that he had not seen accused Manoj and Arjun at the place of the incident. He
admitted that accused Manoj had not caused any stab injuries to Hansraj with a
knife nor Arjun had caught hold of Hansraj. He has also admitted that what is
mentioned in Ex. P-6, which is the spot map, cannot be explained by him.
In his cross-examination, he admitted that the Basti and the Nullah is at
some distance. He also admitted that at the place of the incidence, it was dark.
This is contrary to the evidence of PW-10, Joshu @ Umesh who deposed that
there was a source of light in which he saw the incident. This is also contrary to
the spot map Ex. P-6, in which no source of light is shown at the place of
incident. Even PW-1 Smt. Sangeeta Uikey has not shown presence of Joshu @
Umesh (PW-10) at the spot.
Thus, the evidence of Joshu @ Umesh is not creditable. It is not
creditable for following reasons. Firstly, Chhotu (PW-3) has not shown his
presence at the place of the incident. Secondly, what he is deposing is contrary
to the spot map Ex. P-6. Thirdly, PW-10 has admitted that he had gone to
bring bidi for his father and when he returned back to his residence and from
his residence, the place of incident is not visible because of Bagad. It is not his
case that place of incidence is on the way to the bidi shop. Therefore, the
evidence of PW-10 Joshu @ Umesh, cannot be said to be a creditable
evidence.
As far as PW-8 Savita, is concerned, she too is not an eye-witness. She
has admitted in para 10 of her cross-examination that no incident took place in
front of her and accused had not beaten Hansraj in front of her.
She also discredited the story of Sangeeta Uikey (PW-1) that Chhotu was
the informer. In para 10, she categorically said that Chhotu had not given
intimation to her or her sister. She admitted that Chhotu (PW-3) is her younger
brother and Joshu (PW-10) is her neighbour.
From the spot map, it is also evident that the house of deceased Hansraj
is on the other side of the road.
PW-2 and PW-3, have themselves admitted that they were bursting
crackers and the place of incidence was not visible as it was dark and they had
not seen the accused causing any injuries to deceased Hansraj. These are the
witnesses on whose version PW-1, Sangeeta authored prosecution story.
As per the Investigating Officer PW-15, Shri D.P. Jatav, Sub Inspector,
in para 30, he has admitted that from F.S.L. Bhopal, seized properties were
examined. F.S.L. report is Ex. P-25. The seized knife from Manoj is Article-
E. The findings on Article A blood stained soil, Article C Pant of deceased
Hansraj, D-1 shirt of Hansraj, D-2 vest of Hansraj, D-3 underwear of Hansraj
and Article-E knife recovered from Manoj were found to contain human blood
but they were disintegrated.
The F.S.L. report Ex. P-25, points out that on Article-C which is pant of
the deceased Hansraj Uike and Article-E which is the knife recovered from
Manoj both contains blood stains of blood group A B. However, what is
intriguing is that PW-6 Dr. Ranu Verma, who had carried out the postmortem
on the body of the deceased, in para 4, has mentioned that he had given a white
shirt with lining, a black vest and brown underwear in a sealed packet to the
Police Constable for FSL examination. This fact is corroborated from the
evidence of PW-15 Shri D.P. Jatav, that he had not seized any clothes of
deceased Hansraj from the hospital.
He admitted that there is no mention of sealing of the recovered knife
vide seizure memo Ex. P-15. He has also admitted that he had not put any
sample seal on the seized articles.
It has also come on record that pant was given by wife of the deceased
namely Sangeeta (PW-1). Therefore, when the articles which were given by
PW-6 Dr. Ranu Sharma for F.S.L. did not contain pant of the deceased
Hansraj, then any blood marking in the F.S.L. becomes insignificant and creates
doubt about the authenticity of finding of blood group over the pant Article C
and Knife Article E.
Blood group matching on Article E also becomes suspect in view of the
statements of PW-15 Shri D.P. Jatav, Sub Inspector, in terms of his admission
that there is no mention of sealing of the knife which was seized vide seizure
memo Ex. P-15, and he had not put any sample seal.
In view of such facts, it is evident that firstly appellants have been able to
discredit the so called eye-witnesses. Secondly, the seizure of articles is not
proper and not in terms of requirements of law. Thirdly, the prosecution has
failed to complete the chain of events. Therefore, the judgment of conviction
and sentence being passed without appreciating the evidence in correct
perspective needs to be set aside and is hereby set aside.
The appellants, if not, required in any other case be released immediately
subject to payment of fine and the properties be disposed of in terms of the
orders of the trial court.
In above terms, the appeals are allowed and disposed of.
Record of the court below be sent back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
vy
