Madhya Pradesh High Court
State Of M.P. vs Badam Singh And Others on 22 August, 2019
Equivalent citations: AIRONLINE 2019 MP 1221
Author: Vivek Agarwal
Bench: Vivek Agarwal
1 CR.A.390/2001
High Court of Madhya Pradesh
Bench at Gwalior
DIVISION BENCH: Hon.Shri Justice Sanjay Yadav &
Hon.Shri Justice Vivek Agarwal
Criminal Appeal No.390/2001
State of M.P. through Police
Station Dabra District Gwalior.
....Appellant
Versus
1. Badam Singh S/o Girwar
Singh Gurjar, Aged 30
years.
2. Raghunath S/o Girwar
Singh Gurjar, Aged 24
years.
3. Siyaram S/o Saligram
Gurjar, Aged 19 years.
4. Munni alias Panjab Singh
S/o Girwar Singh Gurjar,
Aged 19 years.
5. Saligram S/o Gopisingh
Gurjar, Aged 20 years.
6. Brajbhan Singh S/o
Pahadsingh Aged 20 years.
7. Kalla (dead)
8. Sardar Singh S/o Vishal
Singh Gurjar, Aged 22
years.
9. Sarnamsingh S/o Girwar
Singh Gurjar, Aged 24
years.
10. Ramprasad S/o Kisna Kori
Aged 35 years,
All residents of Village
Rajiyar Thana, Dabra
District Gwalior.
11. Gopal Singh S/o
Sugharsingh Gurjar Aged
22 years, R/o Village
2 CR.A.390/2001
Lakhnoti, Thana Bilaua.
12. Mewaram (dead)
13. Feran Singh S/o Kadam
Singh Gujar Aged 40 years,
R/o Village Lakhnoti,
Thana Bilaua.
14. Barjor @ Bajjar Singh S/o
Kadam Singh Aged 35
years, R/o village Lakhnoti,
Thana Bilaua District
Gwalior.
15. Kartar Singh (dead)
...Respondents
------------------------------------------------------------------------
Shri F.A.Shah, learned Public Prosecutor for the
appellant/State.
Shri Shailendra Singh, learned counsel for the respondents.
------------------------------------------------------------------------
Whether approved for Reporting :
JUDGMENT
(Delivered on this 22nd day of August 2019) Per Justice Vivek Agarwal :
State of Madhya Pradesh has filed this appeal under the provisions of Section 378 of Cr.P.C. being aggrieved by judgment dated 10.03.1999 passed by First Additional Sessions Judge, Dabra, District Gwalior in Sessions Case No.23/1987, wherein learned Additional Sessions Judge has acquitted accused Barjor Singh and Feran Singh of the charges under Sections 147, 148, 302, 307, 302/149, 307/149 and 323 of IPC and Section 25 (1)(A) of the Arms Act. Similarly, accused Mewaram has been acquitted of 3 CR.A.390/2001 charges under Sections 147, 148, 302, 307, 302/149, 307/149 and 323 of IPC and accused Munni Singh has been acquitted of charges under Sections 147, 148, 307, 302/149, 307/149 and 323 of IPC. Similarly accused Badam Singh, Saligram and Gopal Singh have been acquitted of charges under Sections 147, 148, 302, 302/149, 307/149 and 323 of IPC and accused Kalyan Singh, Sardar Singh, Raghunath Singh, Kartar Singh, Brajbhan Singh, Ramprasad, Siyaram, Sarman Singh were acquitted of charges under Sections 147, 148, 302/149, 307/149 of 323 of IPC.
2. It is submitted by learned Public Prosecutor for the State that the prosecution case in brief is that on 24.05.1986, deceased Tikaram was coming from his field known as 'Dukaria Vale Khet' alongwith Badam Singh (P.W.4) and his nephew Pappu @ Raghuraj Singh (P.W.17), when at about 9.00 a.m. accused persons armed with mouser, 12 bore gun, lathis, lohangi and Ballam came to the place of the incident and surrounded both the deceased Tikaram and injured Badam Singh (P.W.4). Accused Barjor Singh and Feran Singh with intention to kill Badam Singh fired gun shots on him, as a result of which he had fallen down when all the accused persons with common object had caused injuries to Badam Singh. At this point of time, Tikaram also reached 4 CR.A.390/2001 the spot where he was subjected to fire arm injuries, as a result he had fallen down there itself, when he was hit with farsa, lathi and lohangi. At this point of time, Pappu @ Raghuraj (P.W.17) tried to save them when injury was caused to his thumb of left hand. Thereafter accused persons giving slogans in praise of 'Goddess Shitla Mata' ran away. Pappu @ Raghuraj Singh had given this information to his Nani at his house so also to his maternal aunt and Shivcharan. Then Shivcharan, Hakim and Amar Singh brought Badam Singh and deceased in a bullock cart to a place called Siddhan Ki Janga, where police had arrived when Badam Singh (P.W.4) had lodged dehati nalishi (Ex.P/9).
3. On the basis of dehati nalishi (Ex.P/9), crime was registered at Ex.P/14 and thereafter medical examination was conducted on the deceased Tikaram, Raghuraj and Badam Singh vide Ex.P/11 to P/13. Ex.P/1 is x-ray report of Badam Singh and Ex.P/2 to P/5 are his x-ray plates. Post mortem report of Tikaram is Ex.P/31, for which requisition was sent vide Ex.P/32, whereas spot map is Ex.P/39 prepared after preparation of panchnama (Ex.P/40). Ex.P/42 and P/43 are respectively dying declarations recorded from Badam Singh and Tikaram.
5 CR.A.390/2001
4. It is submitted that Ex.P/37 is a memo under Section 27 of the Evidence Act given by Saligram from whom a farsa was seized vide Ex.P/38, whereas Ex.P/18 to P/30 are the seizure memos. Vide Ex.P/18, lathi was recovered from Panjab Singh. Ex.P/19 is recovery memo of lathi from Raghunath. Ex.P/20 is the recovery memo of lathi from Siyaram. Ex.P/21 is recovery memo of lathi from Barjor. Vide Ex.P/22, farsa was recovered from Mewaram, whereas a lathi was recovered from Sardar Singh vide Ex.P/23 and from Sarnam Singh vide Ex.P/24. A lathi was recovered from Ramprasad vide Ex.P/25, whereas a ballam was recovered from Kalyan vide Ex.P/26. A lathi was recovered from Brajbhan Singh vide Ex.P/27. A baka was recovered vide Ex.P/28 from Jawala Singh. Desi Tamancha and one live cartridge of 12 bore were recovered from Feran Singh vide Ex.P/29 and a farsa was recovered from Badam Singh vide Ex.P/30.
5. It is submitted that vide Ex.P/42, which is dying declaration of Badam Singh, Barjor Singh had caused a gun shot injury to Tikaram, as a result of which pellets had hit Tikaram when Feran Sing, Gopal Sing, Mewaram had hit him with farsa and then Mewaram, Sarnam Singh, Siyaram, 6 CR.A.390/2001 Munni and Saligram caused injury with lathi and farsa. A gun shot injury was also caused by Gopal Singh.
6. Similarly, Tikaram had given dying declaration (Ex.P/43) to Surendra Kumar Jaggi (P.W.16) and has mentioned that when his younger brother was cultivating the fields, then persons from village Lakhnoti namely; Feran Singh, Barjor Singh, Gopal Singh, Jwala, Kartar and brother of Gopal came armed with a Pachfera and fired gun shot from such mouser (Pachfera) causing gun shot injury to both the brothers when others had hit them with lathi and farsa.
7. It is thus submitted that there is sufficient evidence to show that all the accused persons were armed with deadly weapons and gun shot injuries were caused to both deceased Tikaram and Badam Singh, yet learned trial court has acquitted all the persons because Badam Singh (P.W.4) has turned hostile and has not supported prosecution case.
8. Learned Public Prosecutor for the State further submits that during pendency of appeal, appellant No.15 - Kartar S/o Hukum Singh died and his name was deleted as per order dt.30.1.2008. Similarly, appellant No.7 - Kalla @ Kalyan Singh died and his name was deleted vide order dt.22.3.2004. Appellant No.12 - Mewaram also died during pendency of the appeal on 8.4.2019.
7 CR.A.390/2001
9. Learned counsel for the respondents submits that MLC of Badam Singh is Ex.P/13. It is apparent from this MLC that Badam Singh had sustained in all five injuries, out of which three were lacerated wounds, one was abrasion and another one was contusion. Dr.V.P.Mathur, who conducted MLC, had opined that all the injuries were simple in nature, except injury No.(i), (ii), (iii) and (iv), for which final opinion can be given after x-ray reports. All these injuries were caused by hard and blunt object. X-ray report (Ex.P/1) reveals fracture of both of metacarpal bone in the left hand, whereas while taking x-ray of right hand, fracture was found in the index finger. No fracture was found on the right foot whereas fracture was found in left foot. Thus, story developed by the appellant that accused were armed with guns and had fired gun shot and caused injuries with gun shots or with ballam or farsa or baka is not made out. It is also submitted that as per post mortem report (Ex.P/32) of Tikaram, conducted by Dr.V.K.Diwan (P.W.7), there were no gun shot injuries on the body of the deceased Tikaram. This fact has been corroborated by Dr.V.P.Mathur (P.W.5), who had seen following 13 injuries on the body of Tikaram while conducting MLC :-
8 CR.A.390/2001
(i) Lacerated wound on the scalp in mid-line fronto-parietal region 8 cm. x 1 1/2 cm. x skin deep bone exposed (Adv. x-ray skull).
(ii) Lacerated wound over the left side of scalp on frontal region 5 cm. x 1 cm. x 1 cm. (Adv. x ray skull).
(iii) Lacerated wound over left forearm middle 1/3 rd dorsally 3 cm. x 1/2 cm. x 1/2 (Adv. x-ray).
(iv) Lacerated wound over left leg lower 1/3 rd laterally 4 cm. above the left ankle measuring 1.5 am. X 1 cm. x 2.5 cm. by probing broken bony fragments can be felt, fresh bleeding from the wound present, clinically bony crepitous is felt and seems to fracture fibula left side (Adv. x ray).
(v) Lacerated wound over left leg lower 1/3 rd 4 cm. above the injury No. (iv) (Fourth) measuring 2 cm. x 1 cm. x skin deep and after probing it's 3 cm. deep.
(vi) Contusions in an area of 15 cm. x 6 xm. on lateral aspect of left leg extensively from left knee downwards, severally tender and swelled (Adv. x- ray.)
(vii) Contusion over left thigh middle 1/3 rd anterio-medially 7 cm. x 2 cm.
(viii) Lacerated wound over rightly lower 1/3 rd above the right ankle, anterio-laterally - 5 cm. x 2 cm. x 2 cm. deep on probing, fresh bleeding present, clinically fracture of right fibula (Adv. x- ray).9 CR.A.390/2001
(ix) Lacerated wound on the right leg 3 cm.
above the injury No. (viii) measuring 3 cm. x 1/2 cm. x 1/2 cm. (Adv. x-ray).
(x) Lacerated wound on the right leg 13 cm.
above the right ankle anterio-laterally, on probing fresh bleeding from wound (Adv. X-ray).
(xi) Contusion over right ankle laterally 5 cm. x 3 cm. severally present, joint movements restricted (Adv. x-ray.).
(xii) Lacerated wound on right thumb of right hand lateral aspect 2 ½ cm. x 1 cm. x 0.5 cm.
(xiii) Contusion on right thenar eminence of right hand 5 cm. x 2 cm. swelling present (Adv. x-ray). Dr. V.P.Mathur (P.W.5) opined that all the injuries were caused by hard and blunt object. P.W.7 opined that death of Tikaram occurred due to cardio respiratory failure due to multiple injuries and haemorrhage.
10. Thus, placing reliance on such post mortem report and MLC so also opinion of doctors, who conducted such MLC and post mortem, it is submitted that dying declaration do not inspire confidence, inasmuch as there are no fire arm injuries on body of either Tikaram or injured Badam Singh and therefore prosecution has failed to make out its case beyond reasonable doubt. On fact prosecution story is highly exaggerated and not reliable.
10 CR.A.390/2001
11. It is also submitted that presence of Raghuraj Singh (P.W.17) is doubtful at the place of the incident as he sustained only one abrasion on the left hand vide Ex.P/12 and this injury was termed to be simple in nature by Dr. V.P.Mathur (P.W.5). It is pointed out that Dr. V.P.Mathur (P.W.5) has admitted that injuries sustained by Raghuraj Singh could have been self inflicted and were simple in nature. It is also submitted that Dr. V.P.Mathur (P.W.5) has also opined that Tikaram had not sustained any injury from any sharp edged weapon or from any kind of gun. He also admitted that except for injury No.4 caused to Badam Singh, none of the injuries were on vital part of the body. Reading such evidence, it is submitted that there was no intention to cause death and due to old enmity false story has been created.
12. Learned counsel for the respondents submits that Badam Singh (P.W.4) says that he has not authored dehati nalishi (Ex.P/9). Village Choukidar has not been examined and dehati nalishi (Ex.P/9) is not medically corroborated.
13. It is also pointed out that dehati nalishi was lodged on 24.5.1986 at 11.25 a.m., whereas MLC (Ex.P/12) was conducted at 15.05 p.m., which reveals that there is huge 11 CR.A.390/2001 gap and timely medical aid was not extended to deceased Tikaram, lest his life could have been saved. Learned counsel has also pointed out to a fact that there are no eye witnesses to the incident and a story of involvement of respondents accused persons has been cooked at a later point of time.
14. It is also submitted that Ramesh (P.W.3), Hakim Singh (P.W.8), Shivcharan (P.W.9), Pratap Singh (P.W.10) and Amar Singh (P.W.11) have not supported the prosecution case. It is pointed out that prosecution had examined as many as 17 witnesses, out of which two are doctors, namely; Dr. V.P.Mathur (P.W.5) and Dr.V.K.Diwan (P.W.7) and out of remaining 15 witnesses, six have not supported the case and others are either formal witnesses or not the eye witnesses of the incident.
15. It is submitted that defence had moved an application before the trial court for recalling of Tahsildar, who had recorded dying declaration (Ex.P/42 and P/43) but such application has not been entertained and therefore in absence of an opportunity to the defence to vividly cross examine witness of dying declaration, such testimony of dying declaration can not be relied. Reliance has been placed on the judgment of the High Court of Madhya 12 CR.A.390/2001 Pradesh in the case of State of M.P. Vs. Papoo @ Saleem as reported in 2010 ILR 2383 to show that when Tahsildar was not recalled and comprehensive cross examination could not be undertaken, then this dying declaration is not admissible in evidence.
16. It is also submitted that in the dying declaration of Badam Singh (Ex.P/42), time of recording such dying declaration is mentioned as 12.25 pm on 24.5.1986, whereas that of Tikaram was finished at 12.30 pm on 24.5.1986, which causes doubt as to the authenticity of dying declaration and has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Shakuntala Vs. State of Punjab as reported in AIR 1994 SC 220.
17. It is also submitted that Dr.V.K.Diwan (P.W.7), who had conducted post mortem of Tikaram reveals that injuries which were caused to Tikaram, as a result of which there was fracture of right parietal and frontal bone and blood had coagulated in the internal part, Tikaram was not in a position to speak and that also creates reasonable doubt as to the authenticity of dying declaration. In this regard, learned counsel has placed reliance on the law laid down in the case of Paparambaka Rosamma Vs. State of Andhra Pradesh 13 CR.A.390/2001 as reported in AIR 1999 SC 3455 (Para 8 and 9).
18. It is also submitted that MLC (Ex.P/11) reveals that it was Head Constable Jaibhan Tiwari No.729 from Police Station Dabra, who had taken Tikaram to FHC Dabra at 11.50 a.m. but Jaibhan Tiwari (P.W.6) has not disclosed in his testimony that he had taken Tikaram to the hospital. He is the witness, who had helped T.I. Hakim Singh in recording of dehati nalishi and thereafter had produced such dehati nalishi at the police station upon which FIR was lodged. He has been instrumental in preparing arrest memos Ex.P/15, P/16 and P/17 and seizure memo Ex.P/18, P/19, P/20, P/22, P/23, P/24, P/25, P/26, P/27, P/28, P/29 and P/30. It is also submitted that if MLC was conducted at about 11.30 a.m. when Tikaram and Badam Singh were taken to PHC, where Dr.V.P.Mathur (P.W.5) had examined them, then there was no occasion for Tahsildar to have recorded dying declaration at 12.25 and 12.30 p.m. respectively without there being any authorisation of doctor and also without there being any mention of the fact that doctor had certified Tikaram to be fit to give such dying declaration. It is apparent from MLC report (Ex.P/11) that patient had reached FHC Dabra at 11.50 a.m. and MLC was completed at 1.30 p.m., which means that Dr.Mathur was 14 CR.A.390/2001 present with the patient from 11.50 a.m. to 1.30 p.m. and therefore Tahsildar Surendra Kumar (P.W.16) could not have recorded dying declaration without following due procedure of certification. It is specifically pointed out that certificate given by Dr.V.P.Mathur as contained in Ex.P/41 shows that such certificate was issued for Badam Singh at 12.20 p.m. and for Tikaram at 12.30 p.m. but they have been issued on different piece of paper whereas such certification should have been part of the dying declaration. There is no thumb impression of the person giving such dying declaration on so called certification by the doctor. On this count also dying declaration does not inspire confidence.
19. It is also submitted that Surendra Kumar Jaggi (P.W.16) has deposed that he had recorded dying declaration in the same manner in which it was given by Badam Singh and Tikaram and they have been recorded in his handwriting and he has not added or subtracted anything from it. However, in cross examination, it has come on record that he can not say whether both the inured persons were lying in the same room or not. This statement when examined in the light of the testimony of Dr.V.P.Mathur (P.W.5), then it is admitted that both the persons i.e. Badam Singh and Tikaram were in the same room. He has admitted that he had 15 CR.A.390/2001 not obtained signatures of Tikaram and Badam Singh on Ex.P/41, which is the certificate certifying their condition and has given a justification that he had already conducted MLC, therefore, he had not obtained signatures of Badam Singh and Tikaram on Ex.P/41. It is pointed out that this is contrary to the MLC (Ex.P/11 and P/13), inasmuch as on Ex.P/11 and P/13, time of MLC is mentioned as 1.30 p.m. respectively whereas dying declaration was obtained at 12.25 and 12.30 p.m.
20. It is also submitted that taking statements of two persons lying in the same room vitiated the privacy and supports the contention of the defence that in fact Tikaram was not in a position to speak and it was Badam Singh, who had given statement which has been recorded in the name of both Badam Singh and Tikaram. This fact that both Badam Singh and Tikaram were lying in the same room has been admitted by Surendra Kumar Jaggi (P.W.16) in para 5 of his cross examination. This witness has also admitted that he has not certified that who had put thumb impression on Ex.P/42 and P/43 and has also admitted that he had sent such statements to the Magistrate after two days of their recording.
16 CR.A.390/2001
21. Thus, it is submitted that there is perversity in the prosecution evidence and such perversity can not be allowed to be perpetuated by reversing finding of acquittal and in support of his case placed reliance on the judgment of the Hon'ble Supreme Court in the case of Mohinder Singh Vs. State of Punjab as reported in AIR 2018 SC 3798. It is submitted that it is a fit case to dismiss the appeal filed by the prosecution and maintain acquittal.
22. From the discussion made above and after hearing arguments and going through the record, it is apparent that K.G.Maheshwari (P.W.1) is a doctor to whom Badam Singh was referred for x-ray by Dr.Mathur. He has deposed that none of the fractures on the body of Badam Singh were on vital part of the body. Balkrishna Gupta (Ex.P/2) is an Arms Clerk. His evidence is not of much relevance in view of the fact that he is a witness to the fact that the then Collector had given permission to lodge a case against Feran Singh under the provisions of Section 25 of Arms Act. As no gun shot injury has been found on the body of any of the injured/deceased, this witness is of no avail to the prosecution.
23. Ramesh (P.W.3) is uncle of Tikaram and he has 17 CR.A.390/2001 turned hostile and not support the prosecution case. On the contrary, this witness has deposed that when he had crossed fields of Tikaram and Badam Singh between 5-6 a.m. then he had seen Tikaram lying unconscious in the field so also Badam Singh lying in the field. He had asked Badam Singh, then he was informed that Badam and Tikaram had reached their field at about 4.00 a.m. to cultivate such fields and when some unknown persons in the darkness had attacked them, at that point of time, village Choukidar Khuma had also arrived and other persons had also gathered at that place when Badam Singh and Tikaram were sent to the hospital.
24. Badam Singh (P.W.4), who is an injured witness and maximum burden is on him to prove the prosecution case, has deposed that when he had gone to cultivate his field, he was beaten only by Ramprasad, so also Tikaram was also beaten by Ramprasad and nobody else had beaten them. He has denied that he had lodged dehati nalishi (Ex.P/9) in this regard. He has denied contents of dehati nalishi and then he was declared hostile. After being declared hostile when leading questions were put to him, he has clearly mentioned that he is illiterate. He does not know how to make his signatures. He is the only person in the name of Badam Singh in the whole village. He denied that any compromise 18 CR.A.390/2001 was effected with the accused persons of his village. In cross examination, he has admitted that Khumna is village Choukidar who had gone to the Police Station to make a report of the crime. He denied contesting any case with Ramprasad in the court of Dabra SDM. He had informed police that Ramprasad had beaten his brother and him. He admitted enmity with Ramprasad. He further admitted that when police had reached village, he was unconscious and he had not given any statement to the police. He had not given names of any of the accused to the police. He also denied that he had narrated names of any of the accused to his mother or sister. He admitted that he is taking name of Ramprasad in the court for the first time.
25. Jaibhan Tiwari (P.W.6) is a witness of seizure. He was also instrumental in helping recording of dehati nalishi. This witness has admitted that when Badam Singh had lodged report, at that time Tikaram was unconscious. This report was lodged at "Siddhan Ke Sthan" when Tikaram and Badam Singh were brought in "Bailgadi" and he had met them on way.
26. From evidence of Jaibhan Tiwari (P.W.6), it is apparent that with the nature of injuries sustained by Tikaram, as he was unconscious at the time of lodging of 19 CR.A.390/2001 dehati nalishi at 11.25 a.m., he could not have gained consciousness at 12.30 p.m. so to record dying declaration and therefore dying declaration (Ex.P/43) of Tikaram on account of exaggeration mentioned in such dying declaration and its contents not being corroborated by medical evidence and also the fact that medical condition of Tikaram, who had sustained fracture of parietal bone, which had split and there was a haemorrhage in head could not have given such statement and therefore the dying declaration and evidence allegedly given by Badam Singh (P.W.4) and deceased Tikaram and recorded by P.W.16 are to be disbelieved and be discarded as such.
27. Even MLC report (Ex.P/11) causes doubt as to the fact that patient was brought unconscious which is corroborated by Jaibhan Tiwari (P.W.6) and then he gained consciousness at 12.30 p.m. as recorded by Dr.Mathur in MLC (Ex.P/11) and his statement was recorded by Surendra Kumar Jaggi (P.W.16) and then doctor records injuries and gives opinion at 1.30 p.m. for a patient, who had reached FHC Dabra at 11.50 a.m. As per medical ethics, besides sending calls to the Tahsildar/Executive Magistrate, doctor would have prepared MLC and would have extended 20 CR.A.390/2001 treatment first rather than waiting for the Executive Magistrate. Thus, MLC (Ex.P/11) appears to have been prepared subsequently so to corroborate dying declaration.
28. Dr.V.K.Diwan (P.W.7) admitted that deceased was admitted in J.A.Hospital, in Orthopedic Department on 25.5.1986 at 4.10 p.m. and died on 26.5.1986 at 6.25 p.m.
29. From record it is apparent that when deceased Tikaram died on 26.5.1986, then it was for the prosecution to have produced parameters of his health status i.e. bedhead ticket and continuation sheet showing the treatment given to him and the parameters of the patient from time to time. This is a major omission on the part of the prosecution, inasmuch as parameters have neither been recorded by Dr.Mathur at 11.50 a.m. when patient was taken to him, inasmuch as time mentioned on MLC (Ex.P/11) is at 1.30 p.m. and nor there is any document on record to show that what was the condition of patient at 12.30 p.m. and thereafter till he was admitted in J.A. hospital, then from J.A. hospital till his death. In view of this omission and the dying declaration as has been recorded by Surendra Kumar Jaggi (P.W.16) in absence of attestation of Badam Singh, who was present with the deceased and also the fact that medical and ocular evidence 21 CR.A.390/2001 regarding nature of weapon use are discrepant, it is unsafe to rely upon dying declaration as is held by the Hon'ble Supreme Court in the case of Mohar Singh and others Vs. State of Punjab as reported in 1981 Supp SCC 18. Similarly, in the case Shakuntala Vs. State of Punjab as reported in AIR 1994 SC 220 placing reliance on Section 32 of the Evidence Act, it has been held that inconsistency in dying declaration and documents showing that deceased was not in a fit condition to make a statement, in such circumstances, it is not safe to base conviction entirely on such dying declaration.
30. Dr.V.K.Diwan (P.W.7) has also admitted that there was no gun shot injury marks on the body of the deceased. This also belies prosecution story of Badam Singh and Tikaram being attacked with gun shots fired from fire arm.
31. Hakim Singh (P.W.8) has admitted that there was land dispute between two parties and one party was of Shankar Singh and other of Tikaram. This witness has admitted that both Tikaram and Badam Singh were lying in Dukariya Vale Khet in serious condition and when he had reached, then nobody were present and both were unconscious. A boy called Bharat had informed police when police had reached 22 CR.A.390/2001 there. This witness has been declared hostile. He has denied the case diary statement (Ex.P/33). In his case diary statement (Ex.P/33), he has mentioned that Tikaram, Ramesh, Badam Singh, Raghuraj Singh and Brajbhan Singh were surrounded by assailants, who were armed with lathi, farsa and gun when Tikaram and Badam Singh had sustained injuries. Tikaram was brought to Lashkar for treatment where he died on 26.5.1986. Thus, it is apparent that Hakim Singh (P.W.8) even in his case diary statement had not taken names of any of the assailants. Therefore, this witness is not of much use to secure conviction of accused persons.
32. Shivcharan (P.W.9) has also given statement similar to Hakim Singh (P.W.8) and has not supported the prosecution case. His case diary statement reveals that he is a hearsay witness who has given names of the accused in his case diary statement as per the narration of his nephew Pappu. He had helped Pappu in hiding inside the house and had closed the doors. He has exaggerated story and has said that after some time Mewa, Badam, Sarnam, Munni, Sardar, Siyaram, Brajbhan, Raghunath, Gujar Thakur, Ramprasad had reached his door and has started hitting his door with 23 CR.A.390/2001 lathi when Shaligram and Mewa exhorted that Tikaram and Badam have already been killed and after killing this witness they shall feel at peace. This case diary statement has not been supported by Shivcharan (P.W.9) and moreover he is not an eye witness of the incident. Therefore, much reliance can not be placed on the statement of P.W.9. Pratap Singh (P.W.10) is also hostile. Even his case diary statement (Ex.P/35) reveals that he too is not an eye witness, inasmuch as he admits that later on he came to know that Lakhnoti and Sargaiya are the persons who had beaten Tikaram and Badam Singh.
33. Amar Singh (P.W.11) is also hostile and has not supported the prosecution case.
34. Khumna (P.W.12) is a person, who reported the matter to the police. He too admits not to be an eye witness and further deposed that he had only heard about such incident taking place between the parties of Vishal Singh and Tikaram Singh in the village and had then gone to the police station to make report. This witness has not been declared hostile.
35. Bhagwandas (P.W.13) is a witness of seizure (Ex.P/38) of farsa from accused Saligram so also witness of 24 CR.A.390/2001 memorandum (Ex.P/37) under Section 27 of the Evidence Act. He has admitted that he had signed such seizure memo at the police station. Therefore, even this witness has not been able to support prosecution story on two accounts; firstly there is no injury of farsa on the body of any injured person/deceased and secondly seizure memo was signed by him at police station which causes doubt about authenticity of such seizure.
36. Ramratan Potak (P.W.14) is Patwari and a witness of spot map and Naksha Panchayatnama (Ex.P/39 and P/40 respectively). He has admitted that he has not put any time on Panchnama (Ex.P/40). He has also admitted that he had not obtained signatures of any of the persons working in the neighbouring field. He has also not been able to depose whether such fields were empty or some crop was sown in them. He even could not depose whether fields were watered or dry.
37. Raghuraj Singh @ Pappu (P.W.17) claims himself to be an eye witness and has submitted that at the time of incident he was ploughing the field alongwith his maternal uncle Badam Singh at about 9 a.m. At that point of time, Feran Singh armed with mouser, Barjor Singh armed with 25 CR.A.390/2001 12 bore gun, Gopal armed with farsa, Amar Singh armed with mouser gun, Shaligram armed with farsa, Mewaram armed with farsa, Badam Singh armed with farsa, Brajbhan armed with lohangi and others armed with lathi had reached at the place of the incident. Accused Barjor Singh had fired a gun shot hitting in the leg of Badam Singh. Feran Singh had fired a gun shot hitting Badam Singh in his hand and as a result of such fire arm injury Badam Singh had fallen down when Sarnam Singh, Gopal Singh and Badam Singh had hit Badam Singh with farsa, even Mewaram had hit Badam Singh with farsa. Siyaram, Raghunath and Sirdar Singh had also hit Badam Singh with lathi. Sirdar Singh had hit Badam Singh on his head, whereas Munni had also hit Badam Singh. Thereafter he has admitted that police had made inquiries from him. Evidence given by this witness is contrary to the medical evidence. There are no gun shot injuries as per MLC (Ex.P/11 and Ex.P/13) on the body of Tikaram and Badam Singh. Similarly, there are no injuries caused by farsa and ballam on the body of Tikaram and Badam Singh, but in para 11, this witness has deposed that Badam Singh had sustained 8-10 farsa injuries and 7-8 bullet injuries. This is not only contrary to the medical 26 CR.A.390/2001 evidence but also the fact that no bullets were recovered from the spot nor any bullets were found in the body of Badam Singh. Both doctors namely V.P.Mathur (P.W.5) and Dr.V.K.Diwan (P.W.7) have clearly deposed that all the injuries caused to the body of the deceased as well as to Badam Singh (P.W.4) were caused by hard and blunt object. In view of such facts and also that I.O. has not seized any khoon aaloda mitti, sada mitti from the spot and such weapons as were recovered were not sent for FSL to report presence of any blood stains of human nature clearly reveals that either this witness was not present on the spot or he has been exaggerating things beyond reasonable comprehension. Similarly, in regard to Tikaram he has said that he had sustained 14 gun shot injuries out of which 5-6 were fired from mouser which had hit both the legs and hand. He has also sustained mouser gun shot injury on his chest and such bullets had pierced the body. This witness has admitted that Panjab Singh is his father and has denied that a case of loot under Section 457 and 380 of IPC was instituted against his father Panjab Singh and Hakim Singh, who is another prosecution witness on account of committing such offence in relation to such accused 27 CR.A.390/2001 Shaligram and Sardar Singh. However Ex.D/4 is copy of the judgment dt.27.2.1987 where conviction has been recorded against both Hakim Singh and Panjab Singh under Section 457 and 380 of IPC in Cr.A.No.790/1986. This witness has also admitted that Hakim Singh is his maternal uncle. He has admitted in para 16 that there was a dispute over the land between his maternal uncle and the accused persons. He has admitted in para 18 that after the incident, he had no talk with his maternal uncle (mama) because he was unconscious and he gained consciousness after one day of the incident. This is another important aspect to discard dying declaration. He could not give any explanation that why it is not mentioned in his case diary statement (Ex.P/44) that he had gone to lodge report alongwith his maternal uncle. In fact, his testimony is contrary to that of village Choukidar Khumna (P.W.12), who has admitted that he had reported the matter at the police station. He has not said that he was commanded by anybody to the police station. Therefore, when evidence of Raghuraj Singh (P.W.17) is read in conjunction of evidence of Khumna (P.W.12) and also when it is examined in the light of evidence of Dr.V.P.Mathur (P.W.5), who had conducted MLC on P.W.17 at about 3.05 28 CR.A.390/2001 p.m., it is evident that this witness had not taken the deceased and injured Badam Singh to the Medical Officer Dr.Mathur. He had not gone to record police complaint alongwith Khumna (P.W.12). He has not been declared hostile. He was examined at 3.05 p.m. i.e. much after MLC of Badam Singh and Tikaram (Ex.P/11 and P/13 respectively), which were recorded at 1.30 p.m. Thirdly had this witness visited police station to lodge a report as he has claimed, then in the MLC it would have been mentioned that he was brought by a police person as is mentioned in Ex.P/11 and P/13. This is an important fact missing in MLC (Ex.P/12). Therefore, even presence of P.W.17 at the place of incident is doubtful and prosecution could not prove it beyond reasonable doubt except by indicating a simple injury to one of his finger for which MLC (Ex.P/12) was conducted. Dr. V.P.Mathur has admitted that such injury can be self inflicted. Evidence of P.W.17 is not corroborated with the medical evidence.
38. Therefore, only credible evidence in the whole case is that of Badam Singh (P.W.4) to the extent that he has supported story that it was only Ramprasad, who had beaten him and his brother Tikaram. Though he was declared hostile but he has not supported prosecution story. However, 29 CR.A.390/2001 this witness has admitted that he had not taken name of Ramprasad in his case diary statement and is taking such name for the first time. When evidence of this witness is minutely examined, then one thing is corroborated that he was unconscious. Even if presence of P.W.17 is discarded as an eye witness as we have done but his presence in the village can not be discarded on account of minor omissions inasmuch as his case diary statement (Ex.P/44) has been recorded on the same day of the incident. P.W.17 has clearly mentioned in his court statement that his Mama was unconscious and he gained consciousness on next day. He has not been declared hostile and therefore defence can taken advantage of such evidence. In this regard, attention is invited to the judgment of the Hon'ble Supreme Court in the case of Mukhtiar Ahmed Ansari Vs. State (NCT of Delhi), as reported in (2005) 5 SCC 258, and also to the law laid down in the case of Rajaram Vs. State of Rajasthan, as reported in (2005) 5 SCC 272, wherein it has been held that when witness has not been declared hostile, then accused can rely on their evidence. Therefore, testimony of Raghuraj Singh gets corroboration and prosecution case that it was Badam Singh who was author of dehati nalishi 30 CR.A.390/2001 (P.W.9) gets discarded. This evidence of P.W.17 when read with that of Badam Singh (P.W.4) also discards dying declaration Ex.P/42 and P/43 respectively for the reasons mentioned above and also on account of admission of the prosecution witness that Badam was unconscious and gained consciousness on the other day. In fact he has used word 'mama' which is applicable to both Badam Singh and Tikaram and prosecution did not re-examine this witness to elicit explanation as to which mama he was referring to. Badam Singh (P.W.4) has denied being author of dehati nalishi (Ex.P/9) and when this statement is read in the light of the statement of Khumna (P.W.12) then in fact the first informant was Khumna, village choukidar and dehati nalishi should have been recorded at his instance.
39. Another glaring omission in this case is non examination of I.O. of the case, who could have explained several things. Jaibhan Tiwari (P.W.6), Head Constable has admitted that T.I. Hakim Singh had noted dehati nalishi. This T.I. Hakim Singh has not been examined and one Hakim Singh, who has been examined as P.W.8 is relative of P.W.17 and not T.I. This has a serious implication on the prosecution story, inasmuch as if I.O. wound have been examined, then he would have explained several loopholes 31 CR.A.390/2001 in the prosecution story and could have stitched a better case for the prosecution. Jaibhan Tiwari (P.W.6) has mentioned that FIR was lodged at the police station by Nem Kumar Dixit, but he too has not been examined by the prosecution as he would have testified that whether dehati nalishi was brought by P.W.6 to the police station or not. P.W.6 has also admitted in his cross examination that he is not in a position to give names of any of the accused persons in the court nor he can identify them with names. Therefore, it is apparent that though incident had taken place but since injured eye witness has chosen only to implicate Ramprasad S/o Kisna Kori as an assailant and has given clean chit to all other accused persons and in any case presence of Badam Singh allegedly wielding farsa, Saligram wielding a farsa, Brajbhan wielding a lohangi, Gopal wielding a farsa, Mewaram wielding a farsa, Feran wielding a fire arm and Barjor wielding a fire arm has not been proved as no injury has been caused by farsa, fire arm or lohangi, apparently they can not be implicated under Section 302 read with Section 149 as no common object or common intention can be attributed to them.
40. Similarly, accused who were allegedly wielding danda have been given clean cheat by Badam Singh (P.W.4) 32 CR.A.390/2001 and since name of Ramprasad has been taken for the first time before the court and the injury sustained by him on the occipital region attributed to Sardar has been termed to be simple in nature by Dr.V.P.Mathur, therefore, acquittal recorded by learned trial court on the ground that no injuries have been mentioned in dehati nalishi (Ex.P/9) as were sustained by Raghuraj Singh (P.W.17) and therefore he has been roped in subsequently as an eye witness and then his statements are highly exaggerated. His statements are also not corroborated with medical evidence and therefore in the light of law laid down in the case of Mangilal Vs. State of M.P. as reported in 1990 Supp (1) SCC 529 and also in the case of Davinder Vs. Ram Dutt and another as reported in 1991 SCC (Cri) 152, evidence of such witness has been rightly discarded.
41. Not permitting recall of Surendra Kumar Jaggi (P.W.16) cannot be said to have caused any prejudice to the accused, inasmuch as learned Additional Sessions Judge has noted in order dt.10.10.1998 that counsel for accused namely Shri Barua and J.S.Parihar had raised an objection as to the presence of Surendra Kumar Jaggi (P.W.16) in the court without there being any direction for such presence 33 CR.A.390/2001 after filing of an application under Section 311 of Cr.P.C. This objection as is apparent from order sheet dt.10.10.1998 clearly reveals that counsel for accused were only interested in raising technical plea rather than cross examine P.W.16.
42. Another lacuna is non-examination of Hakim Singh Yadav, I.O. of the case. An opportunity to cross examine I.O. as to compliance of Section 157 Cr.P.C. has been taken away from the defence witness. It has also come on record that complainant party had enmity with some other party of the village on account of political dispute and also land dispute and there are several exaggerations, embellishment and contradictions in the evidence of P.W.17 and therefore he can not be treated as reliable witness to record a finding of conviction and settled principle of law that the prosecution has to prove its case beyond reasonable doubt and has to bridge the gap between, 'may be' and 'must be'. In the present case, prosecution has been able to take us only within the periphery of 'may be' and has failed to prove its case beyond reasonable doubt so to bring it within the parameters of 'must be' and in view of such facts, lack of reliability of the prosecution witnesses, this court is of the opinion that since prosecution has failed to prove its case 34 CR.A.390/2001 beyond reasonable doubt, judgment passed by the trial court does not call for any interference. Appeal fails and is dismissed.
Record of the case be sent to the trial court.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
SP
SANJEEV
KUMAR PHANSE
2019.08.22
17:47:29 +05'30'