Madhya Pradesh High Court
Vikram Singh vs The State Of M.P. on 6 January, 2025
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
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CRA No.776 of 2000
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
CRIMINAL APPEAL No. 776 of 2000
VIKRAM SINGH
Versus
THE STATE OF M.P.
Appearance:
Shri Akhilesh Kumar Saxena - Advocate for the appellant.
Ms. Mradula Sen - G.A./P.L. for respondent/State.
Reserved on : 13.11.2024
Pronounced on : 06.01.2025
This appeal having been heard and reserved for judgement, coming
on for pronouncement this day, the court passed the following:
JUDGEMENT
1] Heard finally, with the consent of the parties.
2] This criminal appeal has been filed under Section 374(2) of Cr.P.C.,
by the appellant - Vikram Singh S/o. Bane Singh, against the judgement
dated 04.07.2000 passed in S.T. No.47/1999 by I Additional Sessions
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Judge, Ujjain (M.P.) whereby finding the appellant guilty, the learned
Judge of the trial Court has convicted him as under:-
Conviction Sentence
Section Act Imprisonment Fine Imprisonment
in lieu of
Fine
307 IPC 5 years R.I. Rs.500/- 1 year R.I.
25(1B)(a) Arms Act 1 year R.I. Rs.500/- 3 months R.I.
3] In brief, the facts of the case are that on 14.05.1998, at around 10
am in the morning when the complainant PW/3 Mohammad Sattar
Qureshi, a resident of Gram Undasa, was sitting outside of his quarter,
and his son Mohammad Anees, one Sultan, Kamleshwar and Peerulal
of village were chatting, at that time, accused persons, namely, Babu
Singh, Vikram Singh (the present appellant), and their uncle Ratan
Singh, whose name was not known at that time, came and started
abusing them, and when they were opposed, Babu Singh and Vikram
Singh took out their country made pistols, whereas their uncle had a
gun, and Vikram Singh fired a gunshot, which hit complainant
Mohammad Sattar on his stomach, and he started bleeding. Thus, the
FIR Ex.P/3 was lodged at around 10:30 AM in the morning alleging
that there was a dispute going on between the parties regarding a
tractor (which was purchased by the complainant Mohammad Sattar
Qureshi on the guarantee of appellant).Injured Mohammad Sattar
Qureshi was treated in the Hospital, and a bullet was also recovered
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from his stomach. The charge-sheet was filed, and subsequently, the
learned Judge of the trial Court, after recording the evidence,
convicted the appellant as aforesaid, and being aggrieved, the present
appeal has been preferred.
4] Counsel for the appellant has submitted that the other accused
persons, namely, Ratansingh and Babusingh have already been
acquitted by the trial Court on the same set of allegations and the
evidence, whereas the appellant has been convicted, thus,
the veracity of the prosecution case is highly doubted. Counsel has
also submitted that there was a cross-case registered in the present
case, in which two persons, namely, Mohammad Anees who is the son
of the complainant Mohamad Sattar and Mohamad Sattar himself
were also convicted in S.T. No.46 of 1999, in which Vikram Singh
also suffered gunshot injuries. It is also submitted that Mohammad
Anees and Mohammat Sattar, who were convicted in the cross-case,
had also preferred a Criminal Appeal No.759 of 2000, in which they
have already been acquitted by this court vide judgement dated
13.11.2024, on account of the lapses in the investigation.
5] It is further submitted that the prosecution has not explained the
injuries suffered by the appellant Vikram Singh, and in such
circumstances, he is liable to be given the benefit of doubt.
6] It is also submitted that the appellant has already suffered more
than four months of incarceration, and thus, even if this Court finds
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that the appellant's conviction is liable to be sustained, his sentence
may be reduced to the period already undergone by him, considering
the fact that the date of incident is 14.05.1998, and it has already been
more than 26 years since the incident and taking into account the
ordeal of criminal trial and the present appeal faced by the appellant.
7] Counsel for the State, on the other hand, has opposed the prayer.
8] Heard counsel for the parties and perused the record.
9] From the record, it is found that the FIR Ex.P/3 was lodged on
14.05.1998 at around 10:30 AM in the morning alleging presence of
all three accused persons viz., Ratansingh, Babusingh and
Vikramsingh, whereas, Ratansingh and Babusingh have already been
acquitted by the trial court. The main allegation of causing gunshot
injury is against present appellant Vikram only, and from his
possession a country made pistol has also been seized vide Ex.P/18.
The ballistic report has been proved as Ex.P/23, wherein it has been
found that the gun seized from the present appellant, matches with the
empty copper jacket, recovered from the body of the injured. PW-14
Dr. Narendra Patidar is the Surgeon of Gokuldas Hospital, who had
taken out the bullet from the body of the complainant. However,
before jumping on any conclusions, it would also be necessary to
weigh the evidence of seizure of the pistol from the appellant.
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10] Reference in this regard may be had to the decision rendered by
the Supreme Court in the case Rajesh v. State of M.P. reported as
(2023) 15 SCC 521, relevant paras of the same read as under:-
"37. The following mandatory conditions were culled out from
Section 100CrPC for the purposes of a valid panchnama:
(a) All the necessary steps for personal search of officer
(inspecting officer) and panch witnesses should be taken to
create confidence in the mind of court as nothing is
implanted and true search has been made and things seized
were found real.
(b) Search proceedings should be recorded by the IO or
some other person under the supervision of the panch
witnesses.
(c) All the proceedings of the search should be recorded very
clearly stating the identity of the place to be searched, all the
spaces which are searched and descriptions of all the articles
seized, and also, if any sample has been drawn for analysis
purpose that should also be stated clearly in the panchanama.
(d) The IO can take the assistance of his subordinates for
search of places. If any superior officers are present, they
should also sign the panchanama after the signature of the
main IO.
(e) Place, name of the police station, officer rank (IO), full
particulars of panch witnesses and the time of commencing
and ending must be mentioned in the panchnama.
(f) The panchnama should be attested by the panch witnesses
as well as by the concerned IO.
(g) Any overwriting, corrections, and errors in the
panchnama should be attested by the witnesses.
(h) If a search is conducted without warrant of court under
Section 165 of the Code, the IO must record reasons and a
search memo should be issued.
38. It was held that a panchnama would be inadmissible in a court of
law if it is recorded by the investigating officer in a manner violative
of Section 162CrPC as the procedure requires the investigating
officer to record the search proceedings as if they were written by the
panch witnesses themselves and it should not be recorded in the form
of examining witnesses, as laid down in Section 161CrPC. This
Court concluded, by stating that the entire panchnama would not be
liable to be discarded in the event of deviation from the procedure
and if the deviation occurred due to a practical impossibility, then the
same should be recorded by the investigating officer so as to enable
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him to answer during the time of his examination as a witness in the
court of law.
xxxxxxxxxxxxxxxxx
40. In Khet Singh v. Union of India [Khet Singh v. Union of India,
(2002) 4 SCC 380 : 2002 SCC (Cri) 806] , this Court held that even
if there is a procedural illegality in conducting the search and
seizure, the evidence collected thereby would not become
inadmissible and the court would consider all the circumstances to
find out whether any serious prejudice has been caused to the
accused. However, this Court pointed out that if the search and
seizure were in complete defiance of the law and procedure and there
was any possibility of the evidence collected having been tampered
with or interpolated during the course of such search and seizure,
then that evidence could not be admitted. Though these observations
were made in the context of a search and seizure under the Narcotic
Drugs and Psychotropic Substances Act, 1985, they would have
relevance generally.
41. Tested against this backdrop, the manner and method in which
the panchnamas and memos were prepared in the case on hand leave
the prosecution high and dry. For instance, the Naksha Panchnama
(Ext. P-3) dated 29-3-2013 records the names of five witnesses,
including PW 2 and PW 8, and states that the witnesses inspected the
body of deceased Ajit Pal alias Bobby; that there was a big wound on
the right side of the neck of the deceased; that, in the opinion of the
panch witnesses, the deceased was murdered by Rajesh Yadav and
Raja Yadav by cutting his throat with a knife; that his body was
stuffed in a sack; and that the sack was thrown in a well. It then goes
on to record the opinion of the investigating officer (PW 16)
wherein, after noting the factual aspects, he stated that Ajit Pal was
murdered by Rajesh Yadav and Raja Yadav by cutting his throat
with a knife.
42. Notably, the narrative is not that of the panch witnesses but
mostly of PW 16 himself and the panch witnesses merely signed the
panchnama. Akin thereto, the crime details form (Ext. P-13) notes
that the scene of the crime was visited on 29-3-2013 at 1515 hours
and records that, 15 m from the Khandari Canal, an old well is
situated; that there are bushes growing around the well; that there
was a body inside a white sack which was floating in the water in the
well; that the width of the well was 2 m 70 cm; that the well was 6 m
deep; and that there was 1 metre water in the well and 5 m was
empty. Significantly, though the crime details form notes that two
panch witnesses were present, there is no narrative by them and they
simply signed the form. The same is the position with the crime
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details form (Ext. P-14), relating to the finding of blood on the walls
of the washing area and the floor; black plastic slippers; and an
empty bottle of liquor. The same panch witnesses find mention in
this crime detail form and they affixed their signatures but again, it is
not their narrative and there is no recording of how they went about
finding these objects. Further, the form straightaway records the
opinion that Rajesh Yadav and Raja Yadav had murdered Ajit Pal,
put his body in a plastic sack and threw it into the well."
(Emphasis supplied)
11] So far as the seizure of the gun from the present appellant is
concerned, it is found that it has been seized through Ex.P/18, which
has been proved by the Investigating Officer PW-11 Assistant Sub
Inspector, Aadesh Kumar Mishra only, however, the witness to the
aforesaid seizure, namely Laxman Singh and Gokul Singh have not
even been examined in the trial Court. In the absence of the aforesaid
witnesses being examined, the recovery itself has become doubtful.
12] This Court is of the considered opinion that it is one thing to say
that the witnesses have not supported the case of the prosecution, and
it is another that the witnesses were not even examined. In such
circumstances, the aforesaid document of seizure of gun Ex.P/18 is of
no avail to the prosecution, and cannot be relied upon to convict the
appellant.
13] A perusal of the record also reveals that surprisingly there is no
disclosure memo of appellant under Section 27 of the Evidence Act,
1872 produced on record, and thus, in such circumstances, on what
basis the seizure memo has been prepared is totally a matter of
speculation, and thus, cannot be relied upon. Reference in this regard
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may be had to the decision rendered by the Supreme Court in the case
of Hari Om v. State of U.P., reported as (2021) 4 SCC 345 relevant
para of the same reads as under:-
29.1. A chhuri or knife was said to have been recovered upon being
pointed by accused Hari Om. In the absence of any memorandum,
the trial court rejected the theory that such recovery would be
admissible under Section 27 of the Act. It was, however, observed
that such recovery would be admissible under Section 8 of the Act.
Though the conclusion arrived at by the trial court is not
inconsistent with some of the decisions rendered by this Court, the
evidence in that behalf, by itself may not be enough to sustain the
finding of guilt. It will be one of the factors to be taken into account
in the ultimate analysis.
(Emphasis supplied)
14] So far as the deposition of PW-3 Mohammad Sattar is concerned,
he has also made specific allegation against present appellant Vikram
Singh only, that he caused gunshot injury on his stomach. In his cross-
examination however, he has admitted that a case is also registered
against him and his brother-in-law and his son for causing gunshot
injury to the appellant Vikram, but he has feigned ignorance if the said
case was lodged on account of gunshot being fired upon the appellant
Vikram. He has also been suggested that he had purchased a tractor, in
which Vikram Singh stood as guarantor, to which he has denied. He
has also denied that since he failed to pay the installment of the
tractor, that is why, Vikram Singh had taken possession of his tractor,
which led the dispute between the parties, to which also he has denied.
He has also been confronted to the FIR Ex.P/3 in which he has stated
that he had taken the tractor on the guarantee of Vikram Singh's land,
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to which he has feigned ignorance. He has also been suggested that
when he and Vikram Singh were fighting with each other, at the time
of incident, his son Anees fired a gunshot, which also hit him as also
the appellant Vikram Singh, to which also he has denied. He has also
denied that he got injured only on account of the gunshot fired by his
own son. However, looking to the fact that Anees was also convicted
by the trial Court for causing gunshot injury to the appellant, though
acquitted by this court on technical grounds/lapses in investigation, the
said defence taken by the appellant that while he was having scuffle
with the complainant, complainant's son Anees Khan fired a gunshot
at him, which also hit the complainant on his abdomen, cannot be said
to be improbable.
15] It is also found that defence has also proved Ex.D/4, which is the
M.L.C. of appellant Vikram Singh, in which he has suffered as many
as eight injuries, which have been proved by PW-10 Dr. A. K. Pal,
who has stated that appellant Vikram Singh had suffered fracture of
his metacarpal bones, and other injuries were gunshot injuries.
16] PW-15 is the Clerk of the Collector Office, who has proved the
sanction to prosecute under Section 25A(2) read with Section 3 of
Arms Act, 1959. In his cross-examination, he has also admitted that,
he does not know as to which document, the District Magistrate saw
before granting permission to prosecute.
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17] On due consideration of submissions, and on appreciation of the
evidence as has been adduced by the prosecution on record, it is
apparent that there was a prior dispute existed between the parties
regarding a tractor which was purchased by the complainant
Mohammad Sattar, with the guarantee furnished by the appellant
Vikram. In the incident, the appellant Vikram also suffered injuries,
regarding which there is no explanation by the prosecution, and PW-
11 Aadesh Kumar Mishra, the Assistant Sub-Inspector, who has also
admitted in para 7 of his deposition that subsequently, he came to
know that Vikram Singh and Ratan Singh had also suffered injuries,
and a case under Section 307/34 of IPC, at Crime No.168 of 1998 was
also registered in this regard. He has also admitted that the appellant
was arrested at 10 O' clock in the night and has also admitted that first
he arrested the appellant, and thereafter the pistol was seized from
him. He has also admitted that the appellant had brought the pistol
along with him in the police station. However, under the facts and
circumstances of the case when the appellant had also suffered a
gunshot injury, it is difficult to believe that he would voluntarily come
to the police station with the pistol.
18] It is also surprising that, admittedly, the appellant was arrested
through arrest memo Ex.P/17, in the format of which it was also
required to be mentioned that if any article was seized at the time of
arrest, but in the requisite column, it has been mentioned as Nil.
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However, the Investigating Officer PW-11 Assistant Sub Inspector,
Aadesh Kumar Mishra, in his cross-examination has tried to explain
the aforesaid blank column on the ground that since he (appellant) had
already given him the gun when he came to the police station after
obtaining the anticipatory bail, he did not mention it in his arrest
memo. In the considered opinion of this court the aforesaid
explanation given by the PW/11 Assistant Sub Inspector, Aadesh
Kumar Mishra appears to be totally improbable, and cannot be relied
upon.
19] So far as the injuries suffered by the appellant are concerned, the
same have been proved by DW-1 Dr. M. D. Sharma, who found the
following injuries on the person of the appellant:-
"1. एक फटा हुआ घाव दाहिनी तरफ हिर पर हजिका आकार 2 इंच x ¼ इंच x
िड्डी की गिराई तक था। यि चोट ककिी िख्तo एवं बोथरी वस्तुख िे आई थी
तथा एक्िड-रे की िलाि दी गई।
2. एक खरोंच पेट पर िामने की ओर नाहभ िे दो इंच नीचे हजिका आकार देड
इंच x ¼ इंच *िाथ में बहुत िे मचडी की गिराई तक पाईन्टेतड घाव थे जो कक
दाहिनी तरफ पेट पर तथा दाहिनी तरफ लम्ब र रीजन तक फै ले हुए थे। नाहभ के
दाहिनी ओर थे। यि चोट ककिी फायर आम्िुु िे आकर िाधारण प्रकृ हत की थी।
3. एक मंदी चोट दाएं िाथ पर बािर की ओर हजिका आकार ढाई इंच x 2 इंच
था इि चोट के हलये एक्िद-रे की िलाि दी गई।
4. एक मंदी चोट बाईअग्र भुजा पर पीछे की ओर हजिका आकार 3 इंच x 1 इंच
x 1 इंच था यि चोट ककिी िख्तक एवं बोथरी वस्तुक िे आकर िाधारण प्रकृ हत
की थी।
5. एक खरोंच बाएं घुटने पर िामने की ओर हजिका आकार देड इंच x 1 इंच था
यि चोट िख्तख एवं खुरदरी वस्तुा िे आकर िाधारण प्रकृ हत की थी।
6. एक खरोंच दाए घुटने पर िामने की ओर हजिका आकार 1 इंच x आधा इंच
यि चोट ककिी िख्तत एवं खुरदरी वस्तु िे आकर िाधारण प्रकृ हत की थी।
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7. एक फटा हुआ घाव दाई तरफ हिर में हजिका आकार देड इंच x ¼ इंच x ¼
इंच था। यि चोट ककिी िख्तद एवं बोथरी वस्तु िे आकर िाधारण प्रकृ हत की
थी।
8. एक फटा हुआ घाव दाहिनी तरफ हिर पर टैम्पो रल रीजन में हजिका आकार
1 इंच x ¼ इंच x ¼ इंच था यि चोट ककिी िख्तप एवं बोथरी वस्तुं आकार
िाधारण प्रकृ हत की थी। "
20] So far as the unexplained injuries to the appellant Vikram are
concerned, the Supreme Court in the case of Lakshmi Singh v. State
of Bihar, (1976) 4 SCC 394 has held as under:-
"12. PW 8 Dr S.P. Jaiswal who had examined Brahmdeo deceased and
had conducted the post-mortem of the deceased had also examined the
accused Dasrath Singh, whom he identified in the court, on April 22,
1966 and found the following injuries on his person:
"1.Bruise 3″ × ½ ″ on the dorsal part of the right forearm about
in the middle and there was compound fracture of the fibula
bone about in the middle.
2.Incised wound 1″ × 2 mm × skin subcutaneous deep on the
lateral part of the left upper arm, near the shoulder joint.
3.Punctured wound 1/2″ × 2 mm × 4 mm on the lateral side of
the left thigh about 5 inches below the hip joint.
According to the doctor Injury 1 was grievous in nature as it resulted in
compound fracture of the fibula bone. The other two injuries were also
serious injuries which had been inflicted by a sharp-cutting weapon.
Having regard to the circumstances of the case there can be no doubt that
Dasrath Singh must have received these injuries in the course of the
assault, because it has not been suggested or contended that the injuries
could be self-inflicted nor is it believable. In these circumstances,
therefore, it was the bounden duty of the prosecution to give a reasonable
explanation for the injuries sustained by the accused Dasrath Singh in the
course of the occurrence. Not only the prosecution has given no
explanation, but some of the witnesses have made a clear statement that
they did not see any injuries on the person of the accused. Indeed if the
eyewitnesses could have given such graphic details regarding the assault
on the two deceased and Dasain Singh and yet they deliberately
suppressed the injuries on the person of the accused, this is a most
important circumstance to discredit the entire prosecution case. It is well
settled that fouler the crime, higher the proof, and hence in a murder case
where one of the accused is proved to have sustained injuries in the
course of the same occurrence, the non-explanation of such injuries by
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the prosecution is a manifest defect in the prosecution case and shows
that the origin and genesis of the occurrence had been deliberately
suppressed which leads to the irresistible conclusion that the prosecution
has not come out with a true version of the occurrence. This matter was
argued before the High Court and we are constrained to observe that the
learned Judges without appreciating the ratio of this Court in Mohar
Rai v. State of Bihar [AIR 1968 SC 1281 : (1968) 3 SCR 525 : 1968 Cri
LJ 1479] tried to brush it aside on most untenable grounds. The question
whether the Investigating Officer was informed about the injuries is
wholly irrelevant to the issue, particularly when the very doctor who
examined one of the deceased and the prosecution witnesses is the person
who examined the appellant Dasrath Singh also. In the case referred to
above, this Court clearly observed as follows:
"The trial court as well as the High Court wholly ignored the
significance of the injuries found on the appellants. Mohar Rai
had sustained as many as 13 injuries and Bharath Rai 14. We get
it from the evidence of PW 15 that he noticed injuries on the
person of Mohar Rai when he was produced before him
immediately after the occurrence. Therefore the version of the
appellants that they sustained injuries at the time of the
occurrence is highly probabilised. Under these circumstances the
prosecution had a duty to explain those injuries ... In our
judgment the failure of the prosecution to offer any explanation
in that regard shows that evidence of the prosecution witnesses
relating to the incident is not true or at any rate not wholly true.
Further those injuries probabilise the plea taken by the
appellants."
This Court clearly pointed out that where the prosecution fails to explain the
injuries on the accused, two results follow: (1) that the evidence of the
prosecution witnesses is untrue; and (2) that the injuries probabilise the plea
taken by the appellants. The High Court in the present case has not correctly
applied the principles laid down by this Court in the decision referred to
above. In some of the recent cases, the same principle was laid down.
In Puran Singh v. State of Punjab [(1975) 4 SCC 518 : 1975 SCC (Cri) 608]
which was also a murder case, this Court, while following an earlier case,
observed as follows: [SCC p. 531 : SCC (Cri) p. 621, para 20]
"In State of Gujarat v. Bai Fatima [(1975) 2 SCC 7 : 1975
SCC (Cri) 384] one of us (Untwalia, J.) speaking for the
Court, observed as follows: [SCC p. 13 : SCC (Cri) p. 390,
para 17]
In a situation like this when the prosecution fails to explain
the injuries on the person of an accused, depending on the
facts of each case, any of the three results may follow:
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(1) That the accused had inflicted the injuries on the members
of the prosecution party in exercise of the right of self-
defence.
(2) It makes the prosecution version of the occurrence
doubtful and the charge against the accused cannot be held to
have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all.
The facts of the present case clearly fall within the four-
corners of either of the first two principles laid down by this
judgment. In the instant case, either the accused were fully
justified in causing the death of the deceased and were
protected by the right of private defence or that if the
prosecution does not explain the injuries on the person of the
deceased the entire prosecution case is doubtful and the
genesis of the occurrence is shrouded in deep mystery, which
is sufficient to demolish the entire prosecution case."
It seems to us that in a murder case, the non-explanation of the injuries
sustained by the accused at about the time of the occurrence or in the course
of altercation is a very important circumstance from which the court can
draw the following inferences:
"(1) that the prosecution has suppressed the genesis and the origin
of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries
on the person of the accused are lying on a most material point
and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the
injuries on the person of the accused it is rendered probable so as
to throw doubt on the prosecution case."
The omission on the part of the prosecution to explain the injuries on the
person of the accused assumes much greater importance where the evidence
consists of interested or inimical witnesses or where the defence gives a version
which competes in probability with that of the prosecution one. In the instant
case, when it is held, as it must be, that the appellant Dasrath Singh received
serious injuries which have not been explained by the prosecution, then it will
be difficult for the court to rely on the evidence of PWs 1 to 4 and 6, more
particularly, when some of these witnesses have lied by stating that they did not
see any injuries on the person of the accused. Thus neither the Sessions Judge
nor the High Court appears to have given due consideration to this important
lacuna or infirmity appearing in the prosecution case. We must hasten to add
that as held by this Court in State of Gujarat v. Bai Fatima [(1975) 2 SCC 7 :
1975 SCC (Cri) 384] there may be cases where the non-explanation of the
injuries by the prosecution may not affect the prosecution case. This principle
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would obviously apply to cases where the injuries sustained by the accused are
minor and superficial or where the evidence is so clear and cogent, so
independent and disinterested, so probable, consistent and creditworthy, that it
far outweighs the effect of the omission on the part of the prosecution to
explain the injuries. The present, however, is certainly not such a case, and the
High Court was, therefore, in error in brushing aside this serious infirmity in
the prosecution case on unconvincing premises."
(Emphasis supplied)
21] In such facts and circumstances of the case, this Court is of the
considered opinion that the prosecution has not been able to prove its
case beyond reasonable doubt as the injuries suffered by the appellant
have not been explained by the prosecution and the complainant PW/3
Mohammad Sattar himself has feigned ignorance about the said
injuries and the counter case registered against him and others which
is an apparent lie. Thus, the benefit of doubt requires to be given to the
appellant as his false implication cannot be ruled out.
22] Accordingly, the appeal stands allowed and the appellant is
hereby acquitted of the charges leveled against him. He is on bail, his
bail bonds are hereby discharged.
23] With the aforesaid, the appeal stands allowed and disposed of.
(SUBODH ABHYANKAR)
JUDGE
Pankaj
