Madhya Pradesh High Court
Lachchiram @ Laxmi Narayan And Ors. vs The State Of M.P. on 14 March, 2018
Author: Ashok Kumar Joshi
Bench: Ashok Kumar Joshi
-( 1 )- CRA No. 739/2004
Lachhiram @ Laxminarayan & others vs. State of MP
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: HON.SHRI JUSTICE SANJAY YADAV
AND
HON. SHRI JUSTICE ASHOK KUMAR JOSHI
Criminal Appeal No.739/2004
1. Lachhiram @ Laxminarayan S/o
Rameshwar
2. Raju @ Rajesh S/o Lachhiram
3. Satish Kumar S/o Lachhiram
4. Smt. Ramabai W/o Laxminarayan
.... Appellants
Vs.
State of Madhya Pradesh,
Through - Police Station Mehgaon,
District Bhind.
.... Respondent
------------------------------------------------------------------------------
Shri Sushil Goswami, Advocate for the appellants.
Shri Vivek Jain, Public Prosecutor for the
respondent/State.
------------------------------------------------------------------------------
JUDGMENT
(14/03/2018) Per Ashok Kumar Joshi,J.:
Challenge in this appeal filed under Section 374 of the CrPC by the appellants is to the judgment dated 4.11.2004 passed by Fourth Additional Sessions Judge Bhind, in Sessions Trial No. 15/2003, -( 2 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP whereby appellant No.1-Lachhiram @ Laxminarayan is convicted and sentenced under Sections 148, 302 and 323/149 of the IPC and Section 27 of the Arms Act, to undergo two years RI, life imprisonment with fine of Rs.1000/-, six months RI and three years RI with fine of Rs.500/-, respectively with default stipulation; appellant No.2-Raju @ Rajesh is convicted and sentenced under Sections 148, 302/149 and 323/149 of the IPC, to undergo two years RI, life imprisonment with fine of Rs.1000/-, six months RI, respectively with default stipulation;
appellant No.3-Satish Kumar and appellant No.4- Smt. Ramabai are convicted under Sections 147, 302/149 and 323/149 of the IPC, and each appellant is sentenced to undergo one year RI, life imprisonment with fine of Rs.1000/-, six months RI, respectively with default stipulation. The jail sentences of each appellant are directed to run concurrently.
2. It would be significant to mention here that by impugned judgment another tried accused Ramjilal was acquitted from the charge of Sections 29 and 30 of the Arms Act and Sections 147, 148, 302/149, 323/149 of the IPC and though the trial Court had also framed charge against another co-accused Rinku @ Dharmendra S/o Lachhiram but during trial on 23.1.2003 it was ordered that he is a juvenile, hence later on he was tried before the Juvenile Justice Board.
3. Prosecution's case in nutshell is that on the -( 3 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP date of incident, i.e., 28th June, 2002 at 21=30 hrs. in town Mehgaon, when complainant Subedar Singh (PW-3) was at his house, his nephew Indrapal Singh (PW-9) informed him that his father is being beaten by the appellants and Rinku. Complainant's brother Devendra was residing in the same lane. After running the complainant reached in front of the house of appellants, then he saw that the appellant Raju armed with an axe, appellant Satish and above mentioned Rinku, each having stick, were beating Devendra by their respective weapons and at that time appellant No.1-Lachhi Ram was having a topidar gun. When complainant tried to save his brother, appellants Raju, Satish and above mentioned Rinku assaulted the complainant and caused injuries to him. When Devendra tried to run towards Mou road, appellants Raju, Satish and their mother and Rinku exhorted after abusing that 'Devendra is escaping, shoot him by the bullet'. Thereafter, appellant No.1-Lachhiram fired a shot from his topidar gun, which caused pellet injuries on the back and buttock of Devendra, who fell down and he was immediately taken by a cart to Mehgaon hospital where the doctor declared him dead. The incident was witnessed by Indrapal, Sarnam and Sudamabai (Bhabhi of the complainant). On 25 th June, 2002 appellant Raju had beaten one Ramphal Tikkiwala, then Devendra had intervened and due to this reason, his brother Devendra was murdered by the appellants and Rinku. Leaving the dead body in -( 4 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP the hospital complainant Subedar Singh reached police station Mehgaon. FIR (Ex.P/3) lodged by Subedar Singh was scribed by SHO K.D. Sonakiya, TI, who in the same night at 22.15 hrs reached spot but in next morning, at the instance of the complainant in presence of Panch witnesses, inspected the scene of occurrence and prepared spot map (Ex.P/4). After reaching at Mehgaon hospital, in presence of Panch witnesses after inspecting the dead body, prepared inquest memo (Ex.P/1) in the midnight and application for post- mortem was submitted and after recording the FIR, complainant Subedar Singh was sent for his medical examination.
4. At Mehgaon hospital Dr. B.S.Kushwaha (PW-2) examined the complainant Subedar Singh on 28th June, 2002 and recorded MLC (Ex.P/2). On 29 th June, 2002 SHO K.D.Sonakiya (PW-15) at 6.35 am, seized bloodstained grit and separately simple grit from the spot vide seizure memo (Ex.P/15). In presence of Panch witnesses, on 29th June, 2002 at 7.45 am Dr. R.K.Taneja (PW-13) started autopsy of the dead body of Devendra Singh and recorded his PM report (Ex.P/20). The deceased's clothes and three pellets taken out from the dead body were sealed by the doctor in separate packets and sent to the relating police station. Appellants Satish and Raju were arrested on 1st July, 2002 and on disclosure statement of appellant Raju @ Rajesh, an axe was seized by the Investigating Officer K.D.Sonakiya in -( 5 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP presence of Panch witnesses vide seizure memo (Ex.P/13) and on disclosure statement of appellant Satish on 2nd July, 2002, a stick (lathi) was seized by the Investigating Officer vide seizure memo (Ex.P/14). Above mentioned Rinku @ Dharmendra was also arrested on 1st July, 2002. Appellant Lachhiram @ Laxminarayan and acquitted accused Ramjilal were arrested on 3rd July, 2002 by separate arrest memos and on 3rd July, 2002 on production by Lachhiram in presence of Panch witnesses, a topidar double barrel gun and its licence issued in favour of Ramjilal were seized by the Investigating Officer vide seizure memo (Ex.P/7). Sealed packets of seized material like firearms, pallets and clothes of the deceased were sent to FSL Sagar, whose reports (Exts. P/24 and P/25) received later on.
5. After completing formal investigation, the charge sheet was filed before the ACJM Mehgaon, who committed the case to the Sessions Judge, Bhind, who transferred the sessions trial to above mentioned trial Court.
6. Present appellants abjured the guilt. Before the trial Court, Kalyan Singh (PW-1), Dr. B.S.Kushwaha (PW-2), complainant Subedar Singh (PW-3), Udai Singh Chouhan (PW-4), deceased's wife Sudama Devi (PW-5), Sarnam Singh (PW-6), Ramavtar Shivhare (PW-7), Rajendra Kumar (PW-8), Indrapal (PW-9), Patwari Sukhlal (PW-10), Manoj Kumar Sharma (PW-11), Mahendra Singh Chouhan (PW-12), Dr. R.K.Taneja (PW-13), Ramakant Shukla (PW-14) -( 6 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP and Investigating Officer K.D.Sonakiya (PW-15) were examined. It was the defence of present appellants before the trial Court that they have been falsely implicated in the case. It was the defence of the acquitted accused Ramjilal that the seized gun was his licenced gun and he was called at police station with gun and licence where gun and licence were taken by the police. Three defence witnesses, Govind Singh (DW-1), Ramvaran Singh Yadav (DW-2) and Lochan Das (DW-3) were examined for the appellants.
7. The trial Court after hearing acquitted Ramjilal from the charge of Sections 29 and 30 of the Arms Act and Sections 147, 148, 302/149 and 323/149 of the IPC but it convicted and sentenced the present appellants as aforesaid.
8. It is clear from the deposition of Dr. R.K. Taneja (PW-13) and his post-mortem report (Ex.P/20) that on 29th June, 2002 in morning at the time of starting of post-mortem of deceased Devendra Singh and he recorded following injuries in post mortem report on his dead body:-
(i) Bluish contusion, size 2"x3" on front side of left ear;
(ii) Reddish contusion, size 6"x1"
obliquely placed below the left
scapular area;
(iii) Seven round shaped red coloured signs on right buttock, whose margins were burnt and all these seven signs were also having blackening;
The Autopsy Surgeon opined -( 7 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP that these seven signs of right buttock were actually wounds caused by pellets of firearms, whose margins were inverted.
9. The deceased's worn pant was also having holes and on dissection of the dead body, two pellets were taken out from right rectus muscle and one pellet was found in the abdomen of the deceased; abdominal cavity was filled with blood, large intestine was ruptured and fecal matter had also fallen in abdominal cavity. In the opinion of the doctor, all the three external injuries were ante mortem and Devendra had died due to injuries caused by firearm, resultant excessive bleeding and arisen shock within 18 hours from the starting of his post mortem. The nature of death was homicidal and the injury caused by firearm was sufficient to cause death in the ordinary course of nature. When Dr. Taneja was re-examined on 9th October, 2003 then he explained that by mistake previously on 19 th August, 2003 he deposed that an entrance wound caused by firearm was found on right side of the abdomen but actually no external injury was found on the abdomen, however three pellets were found in the abdominal cavity and as on 19 th August, 2003 he was not having proper spectacle, hence he could not rightly read over his post mortem report. He opined in cross-examination that firearm injury should have been caused from a distance of 7-8 feet, as it was having blackening. It is nobody's case that Devendra Singh's death was accidental or suicidal, -( 8 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP hence it is proved that on the date of incident, i.e., 28th June, 2002, deceased Devendra met with a homicidal death.
10. It is clear from the evidence of Dr. B.S. Kushwaha (PW-2) that in the night of 28th June, 2002 at Community Health Centre, he found following external injuries on the body of complainant Subedar Singh (PW-3), who was brought by a police constable before him:-
(i) An abrasion, size 1/4"x1/4" on middle part of the right leg;
(ii) An abrasion, size 1/4"x1/4" on middle finger of right hand;
(iii) A contusion 1"x1" on right side of waist and he was complaining pain because of this injury.
11. Dr. B.S. Kushwaha (PW-2) proved his MLC (Ex.P/2) regarding complainant and opined that all the three injuries of complainant were appearing to be caused by hard and blunt object within 12 hours from his examination and all were of simple nature.
12. It has been vehemently contended by learned counsel for the appellants that though allegedly incident occurred in the residential area of town Mehgaon, only relative and interested witnesses complainant Subedar Singh (PW-3), Sudama Devi (PW-5), Sarnam Singh (PW-6) and Indrapal (PW-9) have supported the prosecution's case, whereas alleged independent witnesses of the incident, Ramavtar Shivhare (PW-7) and Rajendra Kumar (PW-8) turned hostile and they have not supported -( 9 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP the prosecution's case against the appellants. It is further argued that the deceased's wife and son deposed that they had seen the incident, but it is clear from their evidence that they did not intervene at the time of incident to save Devendra, hence, their conduct is unnatural. It is also contended that though allegedly a member of unlawful assembly, Rinku @ Dharmendra, was later on tried before Juvenile Justice Board, appellants Raju @ Rajesh, Satish and Smt. Ramabai could not be held guilty for murder of Devendra caused in furtherance of common object of alleged unlawful assembly, as according to the prosecution's case, the fatal injury caused by gun was inflicted only by appellant No.1- Lachhiram. It was further contended that the alleged motive of murder was not of such nature or magnitude that could instigate any appellant to cause murder of deceased Devendra Singh. It is also argued that according to the evidence of wife of deceased Sudama Devi (PW-5), at the time of incident the deceased was carrying a transistor or radio in his hand but during investigation no such transistor or radio was recovered by the investigator. Hence, it is prayed that the appeal be allowed and the appellants be acquitted from the above mentioned charges.
13. On the other hand, supporting the conviction recorded by the trial Court against the appellants, it has been contended by the Public Prosecutor that the trial Court has properly and legally analyzed the -( 10 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP evidence produced by both the parties and has not erred in convicting and sentencing each appellant. Hence, the dismissal of appeal is prayed.
14. Complainant Subedar Singh (PW-3), Sudama Devi (PW-5), Indrapal Singh (PW-9) and Sarnam Singh (PW-6) deposed as eye-witnesses in support of the prosecution's case, whereas Ramavtar Shivhare (PW-7) and Rajendra Kumar (PW-8) alleged other eye-witnesses turned hostile and did not support the prosecution's case. Subedar Singh (PW-3) deposed that after receiving information from his nephew Indrapal (PW-9), he reached at about 9 or 9=30 pm in front the house of appellants and saw that appellants Raju, Satish, Ramabai and Rinku were assaulting his brother Devendra with sticks and axe and at that time Lachchiram was having a gun and when he tried to save his brother Devendra, then appellant Raju with axe, Satish with stick, Rinku and their mother Ramabai also assaulted him and he received injuries in his waist, calf and fingers. When his brother Devendra started running towards Mou road, then other appellants instigated Lachchiram to shot a fire on Devendra as Devendra was running, thereafter appellant Lachchiram fired a shot from his topidar gun, whose pellets hit on back side of waist of Devendra and Devendra immediately fell down on road. The complainant deposed that at the time of incident Chakrapal Rathod, Rajendra (PW-
8), Ramavtar (PW-7), Deewan, Sarnam (PW-6) and Mahendra Singh were also witnessing the incident.
-( 11 )- CRA No. 739/2004Lachhiram @ Laxminarayan & others vs. State of MP He deposed that his brother Devendra had run about 10-20 paces from the place of his prior beating, then he was shot dead by Lachchiram.
15. Sudama Devi (PW-5) deposed that at the time of incident, she was inside her house, but after hearing crying of her husband she came out of her house with son Indrapal and saw that all present appellants and Rinku were beating her husband and she sent Indrapal to call his Uncle Subedar, who immediately reached on spot. Indrapal (PW-9) substantially supported the evidence of his mother and uncle. Sudama Devi deposed that before the incident at about 8=00 pm her husband had gone out of the house for bringing bidis and at that time her husband was having a radio or transistor.
16. Sarnam Singh (PW-6), resident of village Kuhar, deposed that on the date of incident he had gone to his sister's inlaws' house at village Chhimka and on the date of incident returned to town Mehgaon and at about 9=30 pm he was standing at the bus-stand, then he saw that appellant Raju with axe and Rinku, Satish and Ramabai were giving beating to Devendra and Ramabai was by fists and kicks assaulting Devendra; when Devendra started running then all other appellants and Rinku told to Lachchiram that Devendra should be shot dead and he should not be kept alive, thereafter Lachchiram fired from his gun which caused injury on back side of waist of Devendra and he fell down. Sarnam is a panch witness of spot map (Ex.P/4), some arrest -( 12 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP memos of appellants and Rinku and of various seizure memos relating to an axe from the appellant Raju and a stick from Satish vide seizure memos Ex. P/13 and Ex.P/14 respectively, and is also a panch witness of seizure of blood-stained soil and simple soil by the police vide seizure memo (Ex.P/15).
17. Hostile declared witness Ramavtar Shivhare (PW-7) deposed that after hearing the sound of firing of gun he reached on spot and saw the injured Devendra lying on the ground, but he did not see any appellant at that time. Another hostile declared witness Rajendra Kumar (PW-8) deposed that in the night of date of incident, he saw the dead body of Devendra. Both these hostile declared witnesses deposed that no incident occurred in their presence.
18. Sarnam Singh (PW-6) deposed that deceased Devendra was also originally resident of village Kuhar, where he resides, therefore it is argued by learned appellants' counsel that he is not an independent witness but only because of the above mentioned fact Sarnam Singh could not be termed as interested witness. He deposed in cross- examination that at the time of incident after being frightened he remained stood at some distance and did not intervene.
19. Much emphasis has been given by learned counsel for the appellants on the facts deposed by complainant Subedar Singh (PW-3) in his cross- examination that each appellant except Lachchiram had inflicted 10-20 blows to Devendra and Raju -( 13 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP assaulted Devendra by blunt side of axe whereas these facts are missing in his FIR (Ex.P/3) and police statement (Ex.D-1). Just after the incident it is proved by the evidence of Dr. B.S.Kushwaha (PW-2) that the complainant was having injuries. The incident occurred in residential area of town Mehgaon and complainant, deceased and appellants are neighbours residing in the same lane, hence in the night at about 9=00 pm, the presence of family members of deceased Devendra and that of appellants could not be doubted. Only due to some contradictions, discrepancies, exaggerations and improvements by the complainant and other prosecution witnesses, their evidence could not be discarded totally.
20. Regarding improvements or exaggerations made by some of the prosecution witnesses, it has been observed by the Apex Court in the case of State of UP vs. Anil Singh (AIR 1988 SC 1998) as follows :-
"13. Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the -( 14 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Privy Council had an occasion to observe this. In Bankim Chander v. Matangini, 24 Cal WN 626 : (AIR 1919 PC 157), the Privy Council had this to say:
"That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly unture, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence."
14. In Abdul Gani v. State of Madhya Pradesh, AIR 1954 SC 31 Mahajan, J., speaking for this Court deprecated the tendency of courts to take an easy course of holding the evidence discrepant and discarding the whole case as untrue. The learned Judge said that the Court should make an effort to disengage the truth from falsehood and to sift the grain from the chaff.
15. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of -( 15 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform."
21. Complainant Subedar Singh (PW-3) and Sarnam Singh (PW-6) deposed in their cross- examination that appellant Lachchiram had fired on Devendra when he was at 10 paces or 15 feet away from Devendra whereas according to evidence (Para 6) of Dr. R.K.Taneja (PW-13), fire should have been made on deceased from a distance of 7 feet. It is proved that deceased received injuries from pellets fired by a firearm, hence in light of citation of Bharat Singh vs. State of U.P. [AIR 1999 SC 717 = (2002) 2 LRI 580], it could not be inferred that ocular evidence is contradicted by medical evidence.
22. Investigating Officer K.D. Sonakiya (PW-15), who recorded FIR (Ex.P/3) on 28.6.2002 and prepared spot map (Ex.P/4) on next day in morning, deposed in cross-examination (para 11) that from which place firing of gun by Lachchiram was shown is about 40 feet away from the place where the blood of deceased was lying on road. From the spot- map (Ex.P/4) it appears that the adjacent houses of appellants and deceased Devendra are situated in a -( 16 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP lane called Munshi or Rajesh Lane, whereas the place where injured Devendra fell, is shown as Mou road of town Mehgaon where this lane joins the main road. The distance of the point, wherefrom shot was shown to be fired, is shown as about 40 feet. From spot map (Ex.P/4) it appears that Lachchiram had fired from his gun in front of the house of Ramhet Tyagi, which is shown at 40 feet distant from the appellants' house. It is evidence of the prosecution witnesses that at the time of firing by Lachchiram, Devendra was running to save his life and incident had occurred in a residential area, hence possibility of the incident being witnessed by so many persons could not be ruled out.
23. It is clear from the evidence of complainant and other eye-witnesses that when complainant Subedar Singh tried to save his brother Devendra, then some appellants started complainant's beating and in the meanwhile when Devendra was running to save himself, then Lachchiram fired a shot on him by his gun. In such situation, the argument that the wife of deceased and his son did not try to save Devendra appears to be futile and meaningless. Subedar Singh (PW-3) clearly deposed that on the date of incident moonlight as well as electricity light was available and on this point his evidence is supported by Investigating Officer K.D. Sonakiya (PW-15). The incident had occurred in the residential area of town Mehgaon, hence it could not be inferred that at about 9=30 pm incident occurred in complete dark.
-( 17 )- CRA No. 739/2004Lachhiram @ Laxminarayan & others vs. State of MP
24. It is also argued on behalf of learned counsel for the appellants that the alleged motive mentioned by the complainant and other prosecution witnesses does not appear so serious to provide common object to unlawful assembly for murder of the deceased Devendra. Complainant Subedar Singh and his family members have deposed that two days prior to the date of incident appellant Raju had given beating to one Ramphal Tikkiwale, then Devendra and complainant Subedar had gone with Ramphal to the Police Station Mehgaon for lodging the report of that incident, hence appellants became annoyed with the deceased and caused the incident. Head Constable Ramakant Shukla (PW-14) had deposed in para 3 that on 26th June, 2002 at Police Station Mehgaon as Head Constable Moharrir he had written oral report made by complainant Ramphal regarding non-cognizable offence, whose original Ex.P/22 was brought by him at the time of recording of his deposition and its certified copy (Ex. P/22-C) is annexed in the record of the trial Court. In Ex. P/22 it was mentioned by the complainant Ramphal that the incident occurred on 25th June, 2002 at 11=00 pm was also witnessed by Devendra Singh and Jaswant Kushwaha. Therefore, the deposition of complainant on this point is corroborated by Ex.P/22. It is well settled that motive is important in cases of murder based on circumstantial evidence but, in murder cases where ocular evidence of eye-witnesses is available then in -( 18 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP such cases motive is not having much importance.
25. Investigating Officer K.D.Sonakiya (PW-15)'s evidence regarding disclosure statement of appellant Raju @ Rajesh (Ex.P/11) and regarding seizure of an axe vide seizure memo (Ex.P/13) is corroborated by its Panch Witnesses Sarnam Singh (PW-6) and Mahendra Singh (PW-12). Though it appears from FSL report (Ex.P/25) that relating axe was not sent to FSL, but only due to fault or negligence of Investigating Officer on this point evidence of eye-witnesses could not be discarded.
26. Investigating Officer K.D.Sonakiya (PW-15) deposed that on 3rd July, 2002 after appellant Lachchiramm's arrest vide arrest memo (Ex.P/5), he seized a topidar gun from Lachchiramm with its licence issued in favour of Ramjilal and prepared seizure memo (Ex.P/7). On this point the evidence of Investigating Officer is corroborated by panch witness Subedar Singh (PW-3). It is significant to mention here that licence holder Ramjilal is real brother of appellant Lachchiram, who was also tried before the trial Court and Ramjilal was acquitted by the trial Court. Ramjilal in his examination conducted by trial Court under Section 313 of the CrPC expressed that the seized gun in the case is his licensed gun. It is not the case of the appellant Lachchiram that his real brother Ramjilal resides separately from him. The report of ballistic expert of FSL Sagar (Ex.P/24) confirms that seized gun was a double barrel muzzle loading gun in working -( 19 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP condition and in its both barrels remains of previous fired shots were found, though it was not possible to state that on last occasion when shot was fired from it and the effectiveness of muzzle loading gun depends on the quantity of the used gun powder and used projectile's size and type and it is also opined in the report that in general loading condition, pellets fired from such gun would have effective firing range of about 100 gauge and three pellets recovered by the autopsy surgeon from the dead body of deceased could have been fired by seized gun and various holes found on various clothes of the deceased could be made by pellets fired from seized gun. Therefore, the ballistic expert's report also provides corroboration to the evidence of above mentioned prosecution witnesses. Hence, evidence of these prosecution's eye-witnesses supporting prosecution's case appears trustworthy.
27. K.D.Sonakiya (PW-15) clearly deposed that photo copy of the FIR (Ex.P/3) was sent to relating Magistrate on 28th June, 2002, which was received in relating Court on 29th June, 2002. In last printed para of FIR, it is written in handwritten portion that FIR (Ex.P/3)'s copy was sent to relating ACJM Mehgaon.
28. Govind Singh (DW-1), resident of village Baraso, deposed on 11th May, 2004 that about two years ago Ramjilal was caught by Mehgaon Police on 1st May and at that time Ramjilal was having his licensed gun, but he deposed in cross-examination -( 20 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP that appellant Lachchiram and Ramjilal are his nephews being residents of same village, but he also deposed in cross-examination that when Ramjilal was taken by the police to Mehgaon, then behind Ramjilal he had also gone to Mehgaon whereas according to the evidence of Investigating Officer K.D.Sonakiya (PW-15) and his prepared arrest memo (Ex.P/6), Ramjilal was arrested on 3 rd July, 2002 at 20=15 hrs from appellants' house situated in Rajesh Gali of town Mehgaon and according to arrest memo (Ex.P/5) of appellant Lachchiram, he was arrested on 3rd July, 2002 at 19=00 hrs. with a muzzle loaded double barrel gun at Mou road near to a canal. Hence, the evidence given by defence witness Govind Singh (DW-1) regarding seizure of gun of Ramjilal on 1st May, 2002 appears to be totally false and afterthought.
29. Before the trial Court appellant Lachchiram @ Laxminarayan under his examination under Section 313 of the CrPC did not take specific defence of plea of alibi, though he expressed his residence at village Baraso District Bhind, but it was even not suggested in cross-examination to complainant Subedar Singh and his family members that at the relevant time appellant Lachchiram was residing at village Baraso. Appellants Raju and Satish took a plea of alibi. It is well settled that plea of alibi of any accused should be taken from preliminary stage of relating case but no such plea was clearly put in cross-examination of complainant and other -( 21 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP witnesses and even appellant Lachchiram did not take this plea in his above mentioned examination specifically, though later on defence witnesses Ramvaran Singh Yadav (DW-2) and Lochandas (DW-3) were produced on behalf of the appellants to substantiate their alleged plea of alibi. Ramvaran Singh Yadav (DW-2) deposed him to be a resident of village Jhingni, district Morena whereas Lochandas (DW-3) deposed himself as a resident of village Jithaso of Police Station Baraso. Ramvaran Singh Yadav (DW-2) deposed that in relation to a programme of his 'House Inauguration Ceremony' a religious programme of reading of Ramayan was organized by him on 28th June, 2002, which was attended by appellants Raju and Satish and appellants Raju and Satish had remained at their house from the morning of 28th June, 2002 till next morning of 29th June, 2002. Ramvaran Singh Yadav (DW-2) also deposed that appellant Laxminarayan @ Lachchiram is Pujari of Ram Janki Temple and appellants Raju and Satish are Laxminarayan's sons. In cross-examination Ramvaran deposed that the appellants lived in village Baraso, but in cross- examination he expressed his ignorance about the fact that appellants are residing at town Mehgaon or not. No any suggestion was given to any prosecution witness regarding appellants Raju and Satish's presence on the date of incident at village Jhingni, hence the evidence given by Ramvaran Singh (DW-2) clearly appears to be afterthought and -( 22 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP unbelievable.
30. Lochan Das (DW-3), resident of village Jithaso, deposed that he knew appellant Lachchiram because Lachchiram was staying every night at his temple and on every next morning Lachchiramm left his temple for his occupation of begging and in the evening Lachchiram returned to his temple with flour received in the day time in begging. Lochandas deposed in cross-examination that according to his knowledge Lachchiram does not reside or stay at Ram Janki Temple, whereas other defence witness Ramvaran Singh (DW-2) clearly deposed that appellant Lachchiramm is Pujari of Ram Janki Temple. Lochandas deposed that he is Pujari of temple situated in village Jithaso, which is about 10- 15 Kms. away from Mehgaon. No any suggestion in cross-examination to any prosecution witness was given by defence counsel that every night appellant Lachchiram was residing at a temple situated in village Jithaso. Therefore, it is clear that the evidence given by Lochandas (DW-3) was also totally afterthought and unbelievable and we are of the considered opinion that the trial Court did not commit any error in not placing reliance on such afterthought and imaginary defence plea.
31. In the light of above referred citations, we are of the considered opinion that the trial Court had properly and legally appreciated and analyzed the evidence produced before it and did not commit any error in convicting each appellant for the relating -( 23 )- CRA No. 739/2004 Lachhiram @ Laxminarayan & others vs. State of MP offences. The sentences awarded by the trial Court to each appellant in relation to relating offences do not appear harsh and unbalanced. Appellants' present appeal appears to be totally meritless.
32. Consequently, the appeal filed by the appellants is dismissed and each appellant's conviction and sentence as recorded by the trial Court is affirmed. The appellant No.1-Lachchiram is in jail. Let the result of this appeal be intimated to appellant No.1- Lachchiram through relating Jail Superintendent. The Appellants No.2, 3 and 4 are on bail after suspending their jail sentence. They are directed to immediately surrender before the trial Court without any delay so that each appellant may be sent to jail for execution of remaining part of their jail sentence.
A copy of the judgment along with the record be immediately sent back to the trial Court for information and compliance.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
14 -03-2018 14-03-2018
(Yog)
Digitally signed by YOGESH
VERMA
Date: 2018.03.14 18:23:02 +05'30'