Madhya Pradesh High Court
Ramswarup Patel vs The State Of Madhya Pradesh on 18 January, 2018
Author: J.P. Gupta
Bench: J.P.Gupta
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR
(DIVISION BENCH : HONâBLE SHRI JUSTICE J.K.MAHESHWARI &
HON'BLE SHRI JUSTICE J.P.GUPTA)
Criminal Appeal No. 2521 / 2006
Ramswarup Patel
Vs.
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State of Madhya Pradesh
Shri L.D.S. Baghel, learned Senior Advocate with Shri Rajiv Badkur, Advocate as Amicus curiae for the appellant-accused.
Shri Anubhav Jain, Govt. Advocate for the respondent - State.
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Whether approved for reporting : (Yes / No).
JUDGMENT
ad (Delivered on 18th day of January, 2018) Per J.P. Gupta, J :
The appellant has preferred the present appeal being aggrieved by the impugned judgment dated 14.12.2006 passed by the Second Additional Sessions Judge, Rewa in S.T. No.150/06 whereby the appellant / accused has been convicted under Section 302 of IPC and sentenced to undergo life imprisonment and fine of Rs.2000/-; in default of payment of fine, further 6 months rigorous imprisonment.
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2. In this case it is not disputed that Sumit Kumar (PW-1) and Amit Kumar (PW-5) are the sons of deceased Jawaharlal and Archana (PW-2) is the daughter of the deceased and Amresh Patel (PW-8) is the brother-in-law of the deceased. The appellant and the deceased also belong to the same family as their ancestors were the same and they reside in the vicinity.
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3. In brief, the relevant facts of the case are that in the intervening night of 9 and 10 of June, 2006 at about 1.30 am when deceased Jawaharlal was sleeping on a cot out of his house and his sons Sumit Kumar (PW-1) and Amit Kumar (PW-5) were also sleeping together on another cot, the appellant assaulted the deceased with Tangi and caused injury on his neck. Sumit Kumar (PW-1) and Amit Kumar (PW-5) woke-up suddenly and made hue and cry then the appellant ran away with co-accused Jagannath and Pappu @ Brajesh who were standing nearby a lemon tree situated on the yard. At that moment, their sister Archana (PW-2) also came out of the house and saw the appellant and other co-accused persons running away from the place of incident. The neck of the deceased was a cut and excessive bleeding was going on and ultimately, their father had died. On making hue and cry, the persons residing in the locality also came over there and gathered on the spot and one of them informed the police and the police reached on the spot at 3.30 am and Sumit Kumar (PW-1) lodged Dehati Nalishi Ex.P/2, on the basis of which, murg intimation Ex.P/1 was registered and thereafter, on the basis of the Dehati Nalishi, FIR Ex.P/18 was recorded as Crime No. 123/06 in Police Station Govindgarh, District Rewa, for the offence under Sectiopn 302 read with Section 34 of the IPC.
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4. During investigation, dead body of the deceased was examined by Dr. A. N. Mishra (PW-9) and found that the death of the deceased was cause on account of the injury received on his neck. On 10.6.2006 the appellant / accused was arrested as per the arrest memo Ex.P/13 and on his instance, a Tangi was seized as per seizure memo Ex.P/12 and the seized article was sent to the FSL.
As per the FSL report Ex.P/20, presence of human blood on the seized Tangi was confirmed. After completion of the investigation, the police filed a charge sheet against the appellant and other co-
accused persons before the concerned J.M.F.C. who on its turn committed the case to the court of learned Second Additional Sessions Judge, Rewa for trial and the learned Second Additional Sessions Judge after getting the case on transfer tried the case. Learned Trial Court framed charge under Section 302 r/w Sec.34 of the IPC against the appellant and other co-accused persons. The accused persons abjured their guilt and claimed for trial. Their defence was that they are innocent and they have been falsely implicated on the basis of suspicion.
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5. Learned trial Court after trial of the case and on the basis of the evidence and material came on record acquitted the co-accused persons but found the appellant / accused guilty of the offence under Section 302 of IPC and sentenced him as per the impugned judgment.
6. Learned Trial court has given the aforesaid finding on the basis of testimony of Sumit Kumar (PW-1), Amit Kumar (PW-5) and Archana (PW-2) considering corroboration of their evidence with Dehati Nalishi Ex.P/2 and also with the medical evidence and recovery of human blood stained Tangi on the instance of the appellant / accused.
7. The aforesaid finding of the learned trial court has been assailed on the ground that the learned trial court has not appreciated the material on record on its proper perspective which resulted into great miscarriage of justice with the appellant. The testimony of Sumit Kumar (PW-1), Amit Kumar (PW-5) and Archana (PW-2) who are relatives and interested witnesses are not reliable as M at the time of incident there was no source of light. Therefore, the witnesses had no opportunity to identify the real culprit. The aforesaid witnesses have not disclosed the fact of identification of the culprit to the persons gathered on the spot and resided nearby the place of incident. They have claimed to be disclosed name of the culprit after reaching the police on spot without explaining any plausible reasons for this silence. Koshal and Kamlesh had reached on the spot immediately and they have not been examined. One near relative Rampal (PW-3) has been examined. He has also stated that he immediately reached on the spot but name of the culprit was disclosed after reaching the police on the spot. Blood stained clothes of Sumit Kumar (PW-1) and Amit Kumar (PW-5) have not been seized. Hence, their presence at the time of incident is also suspicious and the Tangi was also not seized on the instance of the appellant â accused, therefore, it cannot be considered to be a circumstance proved against the appellant. Apart from it, there are material contradictions in the statements of the aforesaid witnesses. Sumit Kumar (PW-1) has stated in his statement that at the time of of incident he caught hold the appellant â accused but the appellant â accused dragged Sumit Kumar (PW-1) to some distance with the help of co-accused Pappu @ Brajesh and on making hue and cry by his brother Amit Kumar (PW-5) and his sister Archana (PW-2), the appellant and co-accused persons ran away but this fact was not disclosed during investigation by any of the witnesses and even in the Court there are contradictory statements with regard to this fact. In such circumstances, the statements of the aforesaid so called eye witnesses cannot be considered beyond suspicion.
8. It is further submitted that in this case motive is also absent as the aforesaid eye witnesses have denied the fact that there was any enmity between the deceased and their father. One another thing has also been pointed out that the time of incident is also not proved beyond reasonable doubt as the medical expert has opined that in the stomach of the deceased, semi digestive food was found which suggests that the death of the deceased was taken place 3 to 4 hours after taking meal and as per the statements of the eye witnesses, the deceased had taken his evening meal near rt about 7 p.m. In such situation, the death might have been taken place near about 10 to 11 p.m. and considering this fact with other circumstances it appears that the aforesaid eye witnesses were not the actual eye witness of the incident and they have falsely implicated the appellant and other co-accused persons. In the aforesaid circumstances it cannot be said that the prosecution has succeeded to prove its case beyond reasonable doubt. Hence, the appeal be allowed and the appellant â accused be acquitted.
9. Learned Govt. Advocate appearing for the respondent / State has argued in support of the impugned judgment and stated that the finding of conviction and sentence of the learned trial ou court is in accordance with law. Hence, the appeal be dismissed.
10. Having considered the rival contentions of both the parties and on perusal of the record, in this case it is not controversial that the death of the deceased was taken place in the th th intervening night of 9 & 10 of June, 2006 on account of the injuries sustained by the deceased on his neck which was caused by sharp edged weapon like Tangi and this fact has been proved by Dr. A. N. Mishra (PW-9) who conducted autopsy and recorded his finding in the postmortem report Ex.P/16 and the statements of the witnesses have not been challenged. Hence, it is held that the nature of the death of the deceased was homicidal.
11. Now the crucial question for consideration is that whether the appellant â accused has caused the aforesaid injury to the deceased with intention to kill him.
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12. As per the prosecution story and the statements of Sumit Kumar (PW-1) and Amit Kumar (PW-5), their father deceased Jawaharlal was sleeping on the cot out of the house and both brothers were also sleeping on another cot nearby the deceased and one bulb was lightening there. Near about 1:30 a.m. Sumit Kumar (PW-1) woke up hearing sound of khachkhach and sat on the cot and saw the appellant assaulting his father with Tangi. At the same time, his brother Amit Kumar (PW-5) also woke up and he also saw the appellant assaulting his father. On making hue and cry, the appellant â accused ran away with other co-accused persons who were standing nearby some distance. At that moment, her sister Archana (PW-2) also came out of the house and saw the appellant and other co-accused persons running away from the spot. Thereafter, after some time, the persons residing in the locality rushed toward the place of incident and remained sit till morning and one h Shailendra informed the police and near about 3 am the police reached on the spot where Sumit Kumar (PW-1) lodged Dehati Nalishi Ex.P/2, upon which, murg Ex.P/1 was registered. G.S. Pandey, ASI, Police Station Govindgarh has also stated that on 10.6.2006 in the night he received an information about the murder of Jawaharlal in village Patparha Tola Teekar and he reached on the spot with some police personnel where he recorded Dehati Nalishi Ex.P/2 and murg intimation Ex.P/1 on the instance of Sumit Kumar (PW-1) and started investigation.
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13. G.S. Pandey (PW-12), Investigating Officer, has also stated that during investigation he also arrested appellant- Ramswarup on 10.6.2006 and prepared arrest memo Ex.P/13 and on interrogation, the appellant â accused gave information about the weapon used in the commission of the offence like Tangi and memorandum Ex.P/11 was prepared and on the instance of the appellant / accused, Tangi article âA was recovered and seized as per the seizure memo Ex.P/12. Amresh Patel (PW-8) has also corroborated the testimony of G.S. Pandey (PW-12). G. S. Pandey (PW-12) has further stated that he sent the aforesaid seized article A- Tangi for chemical examination to the FSL and received the FSL report Ex.P/21, according to which, presence of human blood on Tangi was confirmed.
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14. Learned counsel for the appellant has brought the fact to the notice of this court that Sumit Kumar (PW-1), Amit Kumar (PW-5) and Archna (PW-2) have categorically stated that on the outer side of the house, there was a light of electric bulb at the time of incident and in that light they saw the incident but the Investigating officer has denied the fact that there was any electric bulb for lightening or there was any other source of light. Hence, with regard to source of light, false statement has been made by the aforesaid all three material witnesses. It is also stated that on the date of incident there was full moon light but as per the prosecution story, it has been specifically mentioned that there electric bulb was lightening and there is no material on record to prove the fact that on the date of incident there was full moon light. In the circumstances, existence of source of light is not found to be proved and the witnesses were not in a position to see and correctly identify the culprit.
Possibility of mistake in identification cannot be ruled out. The aforesaid contention has a substance and creates doubt on the creditability of the witnesses.
15. Sumit Kumar (PW-1), Amit Kumar (PW-5) and Archana (PW-2) have categorically accepted that they did not disclose the name of the assailant immediately to the persons gathered on the spot and after 2-3 hours when the police came on the spot they disclosed the name of the assailant. This conduct of the witnesses impeaches their credibility as it cannot be said that there was natural conduct of the persons who had seen the occurrence. It is stated that Dehati Nalishi Ex.P/2 was recorded at 3.30 am on 10.6.2006 in which the name of the assailant was disclosed but there was no material on record to show that after recording of the FIR it was sent to the concerned Magistrate immediately and nothing has been said by the Investigating officer in this regard which shows that there is a non-compliance of provisions of Section 157 of Cr.P.C. In such circumstances it cannot be denied that Dehati Nalishi Ex.P/2 may be ante- dated and it may be prepared afterthought. On the spot Koshal and Kamlesh reached immediately as narrated by the eye witnesses but they have not been produced in the evidence and Rampal (PW-3) in his cross examination has admitted the fact that in the morning at about 8 am Sumit Kumar (PW-1) and Amit Kumar (PW-5) disclosed the name of the assailant. Defence witnesses Jagdeesh (DW-1) and Ram Milan (DW-2) who were also residing nearby the spot and stated to have reached on the spot after the incident and stayed there till morning, by that time name of the assailant was not known. In the circumstances it cannot be denied that afterthought the appellant and other co-accused persons would have been implicated. Honâble the Apex court in the case of Muluwa vs. The State of Madhya Pradesh, AIR 1976 SC 989 has observed that non-disclosure of the name of the assailant by the eye witnesses to the persons gathered at the place of incident is the circumstance, shows unnatural conduct of the witnesses and shaken credibility of the witnesses.
16. Statements of Sumit Kumar (PW-1), Amit Kumar (PW-5) and Archana (PW-2) are also full of contradictions on the material point. Sumit Kumar (PW-1) has stated that he after the incident embraced the appellant â accused who with the assistance of other co-accused Pappu @ Brajesh dragged him (Sumit) to some distance and during that act, his cloths got blood stains and Sumit Kumar (PW-1) has also stated that there were blood stains on his cloths which were seized by the police but the Investigating officer has denied the aforesaid fact. In the circumstance, their statements are not above suspicion and cannot be relied without any independent corroboration.
17. Learned counsel for the appellant has also pointed out that the Tangi on which as per the FSL report Ex.P/21, presence of human blood was confirmed, was not recovered on the instance of the appellant as Amresh (PW-8) who is the witness of recovery of Tangi has admitted in his cross examination that after taking possession of Tangi, it was kept openly in the police jeep. G.S. Pandey (PW-12) I.O. has also not stated that it was seized on the spot from the place of recovery. In such circumstances it cannot be said that it is proved beyond reasonable doubt that the recovered Tangi was sent to the FSL on which human blood was found. Hence, the aforesaid fact of recovery of Tangi cannot be considered as a piece of corroborative evidence. This contention of learned counsel appearing for the appellant is having substance.
18. In this case, the prosecution has also failed to prove the motive of the incident as Sumit Kumar (PW-1), Amit Kumar (PW-5) and Archana (PW-2) have denied the fact that there was any dispute before the incident between their father and the appellant / accused. The circumstances with regard to absence of motive also weaken the credibility of the eye witnesses in the aforesaid circumstances.
19. In this case the time of death of the deceased is also doubtful. As per the eye witnesses, the incident had taken place near about 1:30 a.m. on 10.6.2006. They have categorically stated that on the date of incident the deceased had taken his meal near about 7 to 8 p.m. on 9.6.2006. As per the opinion of the medical expert Dr. A. N. Mishra (PW-9), semi-digestive food was found in the stomach of the deceased which suggests that the deceased would have taken his meal near about 3 to 4 hours before his death. In the circumstance, the death may have been taken place near about 12 Oâclock. This circumstance also indicates that the testimony of the aforesaid eye witnesses may be untruthfulness.
20. In view of the aforesaid discussion it is evident that the eye witnesses who are close relatives of the deceased and interested witnesses having aforesaid significant infirmities cannot be considered to be credential and reliable to prove the prosecution story beyond the reasonable doubt. It is not a fit case to uphold the conviction of the appellant on the basis of evidence of Sumit Kumar (PW-1) Amit Kumar (PW-5) and Archana (PW-2) especially in view of the aforesaid infirmities and absence of other material to corroborate or strengthen their testimony for upholding the conviction with regard to commission of offence of murder of the deceased Jawaharlal.
21. Hence, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt and the appellant is entitled to get the benefit of doubt. Hence, this appeal is allowed and the impugned judgment of conviction and order of sentence awarded by the trial court against the appellant for the offence under Section 302 of the IPC is hereby set-aside. He is acquitted of the aforesaid offence. He is in jail. He is directed to be released forth with, if not required to be detained in any other case.
22. We also express our words of gratitude for the assistance rendered by Amicus Curiae.
23. A copy of this order be sent immediately to the trial court and the jail authorities concerned for information and its compliance.
(J.K. MAHESHWARI) (J. P. GUPTA)
JUDGE JUDGE
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Digitally signed by JITENDRA KUMAR PAROUHA
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Date: 2018.01.18 17:38:30 +05'30'
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