Madhya Pradesh High Court
Shivraj Singh @ Daddi vs The State Of Madhya Pradesh on 27 November, 2017
Author: Nandita Dubey
Bench: Nandita Dubey
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IN THE HIGH COURT OF MADHYA PRADESH AT
JABALPUR
Cr.A No. 1965/2006
Appellants : Shivraj Singh and Another
Versus
Respondent : State of M.P.
Cr.A No. 1986/2006
Appellants : Shiv Prasad and Another
Versus
Respondent : State of M.P.
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Date of Judgment : 30.11.2017
Present : DB of Hon'ble Shri Justice R.S. Jha,
& Hon'ble Ms. Justice Nandita Dubey,JJ
Judgment Delivered by Hon'ble Shri Justice R.S. Jha
Whether approved for reporting :
_________________________________________________
Shri Dev Dutt Bhave, Advocate for the appellant as amicus
curiae.
Shri A.P. Singh, learned G.A. for the respondent.
_________________________________________________
Law Laid down :
Significant paragraph numbers :
JUDGMENT
( 30.11.2017 ) As both these appeals arise out of the same judgment dated 25.9.2006 passed by the Additional Sessions Judge, 2 Dindori, District Sidhi in S.T.No. 52/2006, therefore they are heard and decided concomitantly.
2. Both the aforesaid appeals have been filed by the appellants being aggrieved by judgment dated 25.9.2006 passed by the Additional Sessions Judge, Dindori, District Sidhi in S.T.No. 52/2006 whereby the appellants in Criminal Appeal No.1965/2006 have been found guilty of offence punishable under sections 330 of the IPC and have been sentenced to four years R.I. with a fine of Rs. 200/- each with a stipulation of further R.I. for one month in case of default and the appellants in Criminal Appeal No. 1986/2006 have been found guilty of offences punishable under section 302 and 195 of the IPC and sentenced to R.I for life with fine of Rs. 200/- each with a further stipulation of R.I. of one month in case of default and in addition, the appellant no. 1 of Criminal Appeal No.1986/2006 Shiv Prasad has also been found guilty of an offence punishable under section 201 of the IPC and has been sentenced to R.I. for seven years with fine of Rs. 200/- with a stipulation for a period of one month R.I., in case of default.
3. The prosecution case in brief is that on 24.1.2006 deceased Shivnath who is the brother of appellant Shiv 3 Prasad was found dead with injuries on his body in his house whereupon appellant Shiv Prasad went alongwith appellant Ramlal to police station Karanjiya District Dindori and lodged an FIR in respect of death of Shivnath alleging that the appellants of Criminal Appeal No. 1965/2006, Shivraj Singh and Roop Singh, have committed the murder of Shivnath. Pursuant to the FIR, the criminal law was set in motion.
4. According to the prosecution the appellants in Criminal Appeal No. 1986/2006 Shiv Prasad and Ramlal confessed to the commission of crime on the memorandum recorded under section 27 of the Indian Evidence Act, pursuant to which recovery of a Sabbal was made from them and they were accordingly made accused in the case. The prosecution also filed a charge sheet against appellants in Cr.A.No.1965/2006 for offence punishable under Section 323 of the IPC for having caused hurt on the person of the deceased on 23.01.2006.
5. The trial court on the basis of the statement of the appellants Shiv Prasad and Ramlal on memorandum and the recovery of a Sabbal from their possession has recorded a finding of guilt against them and have sentenced them to life imprisonment for offence punishable under section 302 read with Section 195 of the IPC. The trial Court during trial has 4 also found that appellants Shivraj Singh and Roop Singh had beaten up the deceased Shivnath on 23.1.2006 on account of the fact that he was found consuming Ganja and as Shivraj Singh was a Soldier in the army and as appellant Roop Singh was a constable employed by the police department therefore, they have been found guilty of offence punishable under section 330 of the IPC and sentenced to 4 years R.I.
6. The learned counsel for the appellants submits that the entire prosecution case is misconceived and is untenable on account of the fact that it is based on a confessional statement alleged to have been made by the appellants Shiv Prasad and Ramlal on a memorandum recorded under section 27 of the Indian Evidence Act which apparently and admittedly is not admissible in view of the clear and specific provisions of Section 25, 26 and 27 of the Indian Evidence Act and the law laid down in the celebrity case of Pulukuri Kottaya and others V. Emperor A.I.R. (34) 1947 Privy Council 67 which has subsequently been followed by the Supreme Court in a series of decision.
7. The learned counsel for the appellant further submits that according to the statement of the doctor injury no. 4, which was found on the body of the deceased, was caused by 5 a sharp edged weapon, whereas the prosecution case is that the murder of the deceased was committed by use of a Sabbal which is not a sharp edged weapon. It is also submitted that the FSL report does not indicate that any human blood was found on the Sabbal that was seized from the appellant Shiv Prasad and therefore, the conclusion recorded by the trial court is perverse and contrary to the evidence on record. The learned counsel for the appellants submits that as far as the appellant Shivraj Singh and Roop Singh are concerned, there is no evidence whatsoever on record to indicate that they had voluntarily caused hurt to the deceased for the purpose of extorting any confession or any information which would have led to the detection of any offence or misconduct and in such circumstances the conviction of the appellant Shivraj and Roop Singh for an offence punishable under section 330 IPC is totally misconceived and contrary to the oral and documentary evidence on record. More so, as there was no charge against the said appellants under section 330 IPC nor was any evidence adduced to establish that the said appellants had caused hurt to the deceased for the purpose of extorting any confession or any information. 6
8. The learned counsel appearing for the respondent/State per contra submits that the trial court has duly considered and analyzed the oral and documentary on record and therefore no interference is warranted.
9. Having heard the learned counsel for the parties and having perused the impugned judgment it is apparent that the Court below has recorded a finding of guilt against the appellants Shiv Prasad and Ram Lal for an offence punishable under Section 302 read with Section 195 of the IPC on the basis of the analysis and reasoning given by it from paragraph 21 to 28 and after analyzing the statements of PW-4 Ram Singh, PW-6 Pratap Singh and the investigating officer PW-12 P.S. Paraste has recorded a finding to the effect that the appellant Shiv Prasad and Ram Lal had confessed to the crime in the memorandum under Section 27 of the Evidence Act recorded by the investigating officer and pursuant to the same, the offending weapon was also recovered on their directions. On the basis of the aforesaid analysis, the Court below has recorded a finding of guilt against the appellant.
10. We are of the considered opinion that the finding recorded by the trial Court is contrary to the clear and specific provisions of Section 25 and 26 as well as of Section 27 of the 7 Evidence Act. Admittedly, as stated by the investigating officer PW-12 P.S. Paraste as well as the witnesses of the memorandum PW-4 Ram Singh and PW-6 Pratap Singh, the appellants Shiv Prasad and Ram Lal were brought in custody by the investigating officer PW-12 P.S. Paraste to the house of one Amir Singh PW-3 whereupon they confessed to the commission of the crime and also produced the Sabbal. These admitted facts indicate that the alleged confession is said to have been made by the appellants Shiv Prasad and Ram Lal while in custody and in presence of the police office i.e. PW-12 P.S. Paraste and is therefore, apparently inadmissible in view of the provisions of Section 25, 26 and 27 of the Indian Evidence Act and could not have relied upon by the trial Court for the purposes of recording a finding of guilt.
11. Quite apart from the above, a perusal of the FSL report also indicates that there is no finding in the report to the effect that the blood found on the Sabbal that was seized from the appellant Shiv Prasad had human blood on it. The FSL report indicates that though there was blood on the Sabbal but it could not be identified as human blood. It is also evident from a perusal of the record that the prosecution case is itself opposed to the medical evidence on record in as much as though the 8 offence is said to have been committed by the appellants Shiv Prasad and Ram Lal by inflicting injuries on the deceased Shivnath with a Sabbal, injury No.4 found on the body of the deceased had infact been caused by a sharp edged weapon whereas there is no seizure or confession in respect of the commission of the offence with a sharp edged weapon.
12. In such circumstances, we are of the considered opinion that the finding of guilt and the consequent conviction of appellants Shiv Prasad and Ram Lal for an offence punishable under Section 302 read with Section 195 of the IPC does not find any support from the oral and documentary evidence on record and deserves to be set aside.
13. As far as appellants Shivraj Singh and Roop Singh are concerned, the only evidence brought on record by the prosecution is that one day preceding the murder of the deceased Shivnath, the aforesaid two appellants had caught him in an intoxicated state consuming Ganja whereupon they had beaten him up with fists and cuffs and had thereafter let him go. The statements of PW-7 Than Singh, PW-9 Mangal and PW-12 P.S. Paraste, the investigating officer, also establish the fact that after these two appellants had beaten him up, he was freed and permitted to go home and at that 9 time there was no injury on his person. None of these witnesses have stated anything about the use of force or cause of hurt by appellants Shivraj and Roop Singh for the purposes of extorting any confession, nor was there any charge against these appellants under Section 330 of the IPC and in such circumstances, in the absence of any evidence regarding causing hurt to extort a confession, their conviction under Section 330 of the IPC cannot be sustained and is hereby set aside. However, the statements of the aforesaid witnesses clearly establishes that these two appellants namely Shivraj and Roop Singh had caused hurt to the deceased Shivnath on 23.1.2006 and consequently, an offence punishable under Section 323 of the IPC is established against them and therefore, their conviction under Section 330 is set aside and they are instead held guilty of an offence punishable under Section 323 of the IPC.
14. In view of the aforesaid analysis, Criminal Appeal No.1986/2006 filed by the appellants Shiv Prasad and Ram Lal is hereby allowed and their conviction under Section 302 read with Section 195 of the IPC as well as Section 201 of the IPC is hereby set aside. They shall be discharged of their bail bonds and shall be set at liberty forthwith.
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15. Criminal Appeal No.1965/2006 filed by the appellants Shivraj Singh and Roop Singh is hereby partly allowed and while their conviction under Section 330 of the IPC is hereby set aside and they are held guilty of an offence punishable under Section 323 of the IPC and looking to the fact that the incident is of the year 2006 and the offence is under Section 323 of the IPC, instead of imposing a punishment of imprisonment, they are hereby punished with imposition of fine of Rs.1,000/- each. The Criminal Appeal No.1965/2006 is, accordingly, partly allowed to the extent indicated above. The appellants Shivraj Singh and Roop Singh on deposit of fine shall be discharged of their bail bonds and shall be set at liberty forthwith on doing so.
16. A copy of this judgment be placed in the record of Cr.A. No. 1986/2006.
17. A copy of this judgment be sent to the Secretary, High Court Legal Services Committee, Jabalpur for information.
(R. S. JHA) (NANDITA DUBEY)
JUDGE JUDGE
30.11.2017 30.11.2017
a
Digitally signed by ASHISH TIWARI
Date: 2017.12.01 15:30:23 +05'30'