Madhya Pradesh High Court
Rajendra Singh & Anr. vs The State Of M.P on 26 August, 2013
Author: B. D. Rathi
Bench: B. D. Rathi
1
Cr.A. No.530/1994
Cr.A. No.1481/1996
Cr.R. No.585/1994
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Criminal Appeal No.530/1994.
Appellants 1. Rajendra Singh aged about 28
years, son of Chandan Singh.
2. Virendra Singh, aged about 25
years, son of Chandan Singh
Both residents of Village Muderi,
Police Station Laundi, District
Chattarpur (M.P.).
Vs.
Respondent The State of Madhya Pradesh
For the appellant: Shri S.C.Datt, Senior Advocate with Shri P.Dubey,
Advocate.
For the respondent : Shri Amit Sharma, Government Advocate.
Criminal Appeal No.1481/1996.
Appellant: The State of Madhya Pradesh, through
P.S. Lodhi, District Chhatarpur.
Vs.
Respondents 1. Foj Singh S/o Nawab Singh
Thakur, aged 20 years,
2. Halke Singh alias Bhopal Singh
S/o Hukum Singh aged 20 yrs,
3. Nawab Singh S/o Paltu Singh,
aged 45 years.
4. Roop Singh S/o Paltu Singh
Thakur.
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Cr.A. No.530/1994
Cr.A. No.1481/1996
Cr.R. No.585/1994
All are residents of Village
Mudairi, Police Station Laundi,
District Chattarpur (M.P.).
For the appellant : Shri Amit Sharma, Government Advocate
For the respondents: Shri S.C.Datt, Senior Advocate with Shri P.Dubey,
Advocate.
Criminal Revision No.585/1994.
Applicant: Kalka Singh aged about 39 years son
of Bhagwandas, resident of Village
Mudery, Police Station Laudi,District
Chhatarpur (M.P.)
Vs.
Respondents : 1. Fouj Singh S/o Nawab Singh
aged 20 years,
2. Halke Singh alias Bhopal
Singh S/o Hukum Singh aged
20 years
3. Nawab Singh S/o Paltu Singh,
aged 45 years.
4. Roop Singh S/o Paltu Singh
aged about 40 years.
All are residents of Village
Mudery, Police Station Laundi,
District Chattarpur (M.P.).
5. The State of Madhya Pradesh
through the District Magistrate,
District Chattarpur.
For the applicant : None.
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Cr.A. No.530/1994
Cr.A. No.1481/1996
Cr.R. No.585/1994
For respondent nos.1 to 4: Shri S.C.Datt, Senior Advocate with P.Dubey,
Advocate.
For respondent no.5/State: Shri Amit Sharma, Government Advocate
******
Present: HONOURABLE SHRI JUSTICE AJIT SINGH
HONOURABLE SHRI JUSTICE B. D. RATHI
******
JUDGMENT
( / 8 /2013) The following judgment of the Court was delivered by:
B. D. Rathi, J. This common judgment shall govern the disposal of the aforementioned criminal appeals and revision, as, having arisen from the judgment of the same trial, they are interconnected. For the sake of convenience appellants in Criminal Appeal No.530/1994 i.e. Rajendra Singh and Virendra Singh shall be referred to as "the appellants", while respondents in Criminal Appeal No.1481/1996 and Criminal Revision No.585/1994 viz. Fouj Singh, Halke Singh, Nawab Singh and Roop Singh shall be referred to as "the respondents".
2. The appellants stand convicted for the offence punishable under section 302 of the Indian Penal Code (for short "the IPC") for committing the murder of Narsingh on 12/6/1990 and sentenced to undergo imprisonment for life. The corresponding judgment dated 3/5/1994 was passed by III Additional Sessions Judge, Chhatarpur in Sessions Trial No.193/90. By that judgment only, the respondents have been acquitted of the offences under Sectiions 148, 149 and 302 of the IPC, against which Cr.A. No.1481/96 and Cr.R. No.585/94 have been preferred by the State and complainant Kalka Singh, brother-in-law of Narsingh, respectively.
3. According to the prosecution case, on 12/06/1990 at 21.00 hours Kalka Singh lodged a Morgue Intimation No. 14/90 (Ex.P/27), as well as, First 4 Cr.A. No.530/1994 Cr.A. No.1481/1996 Cr.R. No.585/1994 Information Report (Ex.P/1), at the same time i.e. 21.00 hours, at Police Station Laundi to the effect that at about 6 pm when he was returning home from forest with his cattle, he heard an outcry from the direction of Well of Narsingh situated near "Khodehar Ki Bandi". When he approached that place he found that his brother-in-law Narsingh was lying on the ground and the mother and father of Narsingh were crying and trying to rescue him. Appellants were assaulting Narsingh with their axe. Appellant Rajendra had amputated the right hand of Narsingh whereas appellant Virender had chopped his left hand from the wrist by axe. Fouj singh was sitting on the chest of Narsingh, Nawab Singh was armed with gun and was standing beside, and, Narayan was hitting on the eyes of Narsingh by the butt of gun. Roop Singh armed with Lathi was standing. Bhopal Singh and Halke Singh had caught hold of Narsingh. Kalka shouted at all the above named assailants upon which Virendra and Rajendra had warned to kill him if he came close to them. At that time, Ambika Brahmin and Pragi Kachi belonging to the village of Kalka Singh happen to pass in a bullock cart from there, who were called by Kalka Singh and the incident was narrated to them. Ambika and Pragi too saw the assailants fleeing from the spot. Kalka and Ambika then raised an alarm upon which villagers assembled there. On the basis of the said report, Crime No.79/90 was registered for the offences punishable under Section 147, 148, 149 & 302 of IPC.
4. The learned Senior Counsel for the appellants submitted that the trial Court could not have convicted the appellants on the same set of evidence that formed the basis of acquittal of remaining co-accused respondents. He also contended that the appellants were convicted only on the basis of seizure of Axes, but, as per the Forensic Science Lab report (Ex.P/26, for short "FSL report"), the same were not found stained with blood. According to him, Narsingh had been tried for committing the murder of one Ramratan on 22/7/1980 in Sessions Trial No.89/1980, though he was acquitted on 15/12/1980 and they were the family members of Ramratan who were responsible for committing his murder. For this, the learned senior counsel invited attention to the certified copy of the judgment placed on the record of trial Court. He further submitted that on the date of incident i.e. 12/ 6/1990, 5 Cr.A. No.530/1994 Cr.A. No.1481/1996 Cr.R. No.585/1994 Jamnua Prasad along with Kalka Singh, Ambika Singh and six other accused persons, had caused gunshot injury to respondent Fauj Singh on his leg and corresponding information, with regard to offence under Section 307/34 of the IPC, was recorded in the Roznamacha register vide Sanha No.486 at 11 p.m. at Police Station Laundi and to avoid complicity, appellants and the respondents have been falsely implicated by Kalka Singh. He further submitted that Kalka Singh has admitted in his evidence regarding pendency of the aforesaid case against him along with others.
5. In response, learned Government Advocate, while inviting attention to the incriminating pieces of evidence on record, submitted that the judgment of conviction was well merited.
6. Having regard to the arguments advanced by the parties, we have perused the impugned judgment and record of the trial Court.
7. At the outset, it is worth mentioning that as per the prosecution Kalka Singh (PW1), Durg Singh (PW2), Ambika (PW3), Sonabai (PW6) and Pragi (CW1) were eye-witnesses to the incident.
8. During investigation, on 13/6/1990 Naksha Panchayatnama (Ex.P/2) of the deadbody and spot map (Ex.P/3) were prepared by the Investigating Officer Kunwar Veer Singh (PW9) at 9.30 a.m. at Mortuary at Laundi and at 7.00 a.m. at Cisari Road, Village Munderi, respectively. Seizure memo (Ex.P/
4) of blood stained soil & control earth and hair collected from the spot on 13/6/90 at 7.30 a.m. was prepared in presence of Kalka Singh, Durg Singh and Chowkidar Shivratan. Place of incident was 9 kilometers away from the mortuary. Both the documents were prepared in presence of witnesses Kalka Singh, Ambika and Pragi. Place where witnesses were standing was also reflected in the spot map. Presence of eye-witnesses father Durg Singh and mother Sonabai of Narsingh has not been reflected in the spot map.
9. Autopsy was conducted by Dr. D.D.Chourasiya (PW4) and in the post mortem report (Ex.P/11), he noted the following injuries:
6 Cr.A. No.530/1994 Cr.A. No.1481/1996 Cr.R. No.585/19941. Incised wound at lower third of left forearm, which separated rest of the forearm and hand.
2. Incised wound at lower third of right forearm which separated lower third of forearm and hand.
3. A stab wound at upper and behind part of left shoulder 2 cm x 1 cm deep upto pleural cavity of left side. Clotted blood present at wound site.
According to him, cause of death was syncope due to excessive hemorrhage at wound site. Death was augmented by injury to left lung pleura. Duration was about 6 to 24 hours since the time of post mortem examination.
10. Weapons of offence viz. Axes were seized at the instance of appellants and one Lathi was recovered at the instance of respondent Halke Singh. As per the FSL report, blood stains were not found on the said articles.
11. Pragi was cited as an eye-witness, but when not produced by the prosecution, he was called by the Court as CW1. It is pertinent to mention here that the appellants and the respondents belong to the same family. It is also an admitted fact that left lower 1/3rd portion of the hand of Narsingh was not found on the spot and only right amputated hand was found.
12. After taking into consideration the evidence of all the witnesses and material available on record, it was held by the trial Court that presence of so called eye-witnesses was doubtful for the following reasons:
a) No explanation was furnished by the prosecution regarding missing part of the amputated left forearm.
b) Presence of parents of Narsingh, who were cited as eye-witnesses, was not shown in the spot map (Ex.P/3) though presence of other witnesses is reflected therein.7 Cr.A. No.530/1994 Cr.A. No.1481/1996 Cr.R. No.585/1994
c) Though Spot Map (Ex.P/3) and seizure memo (Ex.P/4) are said to be prepared at 7 a.m. and 7.30 a.m. respectively, yet, witnesses to the documents have deposed that the same were prepared in the afternoon. The said documents are said to have been prepared at the instance of Kalka Singh, but, as per his evidence as well as that of Durg Singh and Sonabai, Kalka Singh had reached on the spot on the next day in the afternoon only.
d) As per the opinion of the doctor, the stab wound i.e. injury no.3 was the prime cause of death, but, none of the witnesses has deposed in his evidence as to who was the author of the said injury or by which weapon the same was caused. Moreover, no such weapon has been seized.
e) As per parents of Narsingh, he was assaulted by Lathi and Axe on his body and head respectively, but no corresponding injuries were noticed by the doctor.
f) As per Durg Singh, while trying to rescue, he was also assaulted by Lathi, but this fact was neither mentioned in the FIR, nor Durg Singh was subjected to medical examination.
g) Although Pragi (CW1) has been cited as an eye-witness, yet he has not supported the prosecution version and deposed that he was not present at the spot.
h) Ambika (PW3), who has been shown in the spot map (Ex.P/3) as an eye-witness standing 35 paces away from the spot, has deposed that he had not seen the appellants and respondents assaulting Narsingh, but when he came, they were fleeing.
i) There are material contradictions, omissions and exaggerations in the court statements and police statements of the witnesses.
j) FIR (Ex.P/1) and Morgue Report (Ex.P/27), both were recorded on 12/6/1990 at the same time i.e. 2100 hours by Sudama Prasad Shukla (PW7), Sub Inspector, who, in paragraph 7 of his deposition has admitted that it took around 15 minutes to record the FIR. Therefore, recording of both the documents at the same time was not possible.8 Cr.A. No.530/1994 Cr.A. No.1481/1996 Cr.R. No.585/1994
k) Morgue intimation (Ex.P/27) contains omnibus allegation that all the appellants and respondents had jointly killed Narsingh with Axes, whereas, the First Information Report (Ex.P/1) contains respective allegations against appellants and respondents.
l) Copy of Morgue intimation (Ex.P/27) was immediately sent to the SDM vide Despatch No. 1687, which was received by him on 14/6/1990, but there is nothing on record regarding despatch and receipt of the copy of FIR by the Judicial Magistrate and, accordingly, trial Court drew an inference that initially morgue containing omnibus allegations was recorded at the instance of Kalka Singh and later after much deliberations and consultations, FIR (Ex.P/1) was registered disclosing detailed narration of the incident to falsely implicate the respondents and, accordingly, provision of Section 157 of the Code of Criminal Procedure was not complied with by the prosecution.
m) The conduct of so called eye-witnesses, who are parents and brother-
in-law of Narsingh, in not trying to rescue him nor calling anyone for intervention from the village located at 1½ furlongs only, casts doubt of their presence at the spot, more particularly in view of the fact that immediately after the miscreants fled, many people from the vicinity had gathered at the spot.
n) The hair collected from the spot were not sent for DNA examination to ascertain the culpability of the miscreants.
Accordingly, the trial Court, acquitted the respondents.
13. Besides this, the trial Court, in paragraph 28 of the impugned judgment, held that it was not found proved from the evidence of Kalka Singh and Ambika that they had seen the appellants fleeing from the spot with Axes.
The trial Court, despite finding, in paragraph 31 of the impugned judgment, that as the Axes seized from the appellants were not found stained with blood the same could not be connected with the incident of murder, convicted the appellants under Section 302 of the IPC.
9 Cr.A. No.530/1994 Cr.A. No.1481/1996 Cr.R. No.585/199414. It is well settled that the judgment of acquittal should not be disturbed unless the conclusions drawn on the basis of evidence brought on record are found to be grossly unreasonable or manifestly perverse or palpably unsustainable.
15. Taking into consideration the facts and circumstances of the case, we are of the considered view, that it was rightly held by the trial Court that no eye-witness was present at the time of incident, but at the same time, we do not agree with the view taken by the trial Court for convicting the appellants on the ground of seizure of Axes despite the fact that they were not stained with blood.
16. In view of the aforesaid, Cr.A. No.1481/96 and Cr.R. No.585/94, being devoid of merit and substance, stand dismissed. However, Cr.A. No.530/94 is allowed. Impugned conviction and sentences of the appellants are set aside. They are acquitted of the charges. Appellants are on bail. Their bail bonds stand discharged. Direction of the trial Court regarding disposal of the property, is maintained.
17. Copy of the judgment be sent to the trial Court for information and compliance.
(AJIT SINGH) (B. D. RATHI)
JUDGE JUDGE
/8/13 /8/13
(and)