Rajendra @ Rajkumar @ Deshi vs State Of M.P. on 24 May, 2018

[Cites 7, Cited by 2]

Madhya Pradesh High Court

Rajendra @ Rajkumar @ Deshi vs State Of M.P. on 24 May, 2018

This Criminal Appeal has been filed by the appellants under Section 374 of Cr.P.C. being aggrieved by judgment of conviction and sentence dt.28.02.2009 passed by the court of Second Additional Sessions Judge, Gwalior in Sessions Case No.224/2006 under the provisions of Section 302 read with Section 34 of IPC with life imprisonment to each of the appellants and fine of Rs.1,000/-. In default of payment of fine, six months' further simple imprisonment has been directed to be undergone by the appellants.

2. As per the prosecution story, on 25.04.2006, deceased Vidhyaram was murdered by the appellants between 1.00 a.m. and 4 a.m. at Govardhan Colony, Gola Ka Mandir, Gwalior by using a sharp cutting object like ballam in pursuance of common intention.

3. On 25.4.2006, FIR (Ex.P/7) was recorded at about 7.00 a.m. against the appellant No.1 Rajendra @ Rajkumar and 3-4 unknown accomplices under the provisions of Section 302/34 of IPC. On the basis of report of Lalaram (P.W.3), who is the brother of the deceased Vidhyaram, FIR at Crime No.177/2006 was registered under Section 302 read with Section 34 of IPC.

According to the FIR, Vidhyaram was a retired Constable from Special Armed Forces and was involved in the work of maintaining a piggery. Every day he was observing that some of the pigs were stolen, as a result deceased Vidhyaram used to wander in the colonies to take care of pigs. On 25.04.2006 at about 1.00 a.m. Vidhyaram had left his house to look for his pigs when at about 6.30 a.m. intimation was received by him that his brother was murdered with the aid of ballam used to kill pigs in Govardhan Colony. When Lalaram (P.W.3) reached at the place of incident, then Anil Sharma (P.W.2) informed him that Vidhyaram was killed by 3-4 persons. It is also mentioned that some persons felt that life of Vidhyaram can be saved, therefore, Bhagchand Ahirwar had taken Vidhyaram to J.A. Hospitals. Lalaram had expressed his doubts on appellant No.1 Rajendra alleging that a report was lodged 7-8 days prior to the incident against Rajendra and his companions. FIR (Ex.P/7) also makes a note that incident was seen by Anil Sharma and his neighbours and if accused persons are presented, then they shall identify the accused persons.

4. On the basis of such FIR, spot map (Ex.P/8) was prepared wherein the spot of murder is shown as a place opposite to the house of Rajveer Tomar and has been marked as X. On such report, investigation was undertaken and appellant No.1 Rajendra was arrested on 25.4.2006 at about 17.30 hours. His memo under Section 27 of Evidence Act was recorded as Ex.P/11, on the basis of which appellant No.2 Rakesh Valmik and Deena Valmik were impleaded as accused. A ballam was recovered from appellant No.1 Rajendra vide seizure memo (Ex.P/12) dt.25.4.2006 prepared at 18.00 hours. Post mortem was conducted by Dr. Puspendra Singh vide Ex.P/14 and he opined that cause of death was haemorrhage & shock as a result of stab injuries to vital organs lung and heart and duration of death was within 06-24 hours since p.m. This p.m. was carried out at 12.15 p.m. on 25.4.2006. Deceased had sustained following injuries :-

"1. Stab wound evident on lateral aspect of chest in mid-auxiliary line 126 cm. above from heel Elliptical in shape. Vertically placed in 6th inter-costal space. Margins clear cut sharply.

            Size 6x3 cm x cavity deep. Skin subcutaneous
                                        3

          tissues     and     muscles        cut       ecchymosis
          underneath muscles on opened the wound and
          ending inward and out rib 6th & 7th.                 Lower
          border    of    lung.   Pericardium,         heart     and
          diaphragm clotted blood mixed with fluid 2 ½
          liter in thoracic cavity.

2. Abrasion evident on prominent part of right cheek. Size 7 x 1.5 cm. Reddish in colour."

Death was caused because of injury No.1.

5. Case was committed to the Sessions Court and charges were framed against the appellants under the provisions of Section 302, 34 of IPC.

6. Manoj Karosiya (P.W.5) S/o deceased Vidhyaram, Ashok Tenduriya (P.W.7), brother-in-law of the deceased, reported themselves to be eye witnesses and deposed that they had seen the incident taking place in front of their eyes and had seen all the three appellants whom they were knowing before hand and Manoj (P.W.5) had given intimation of such incident at about 1.30 a.m. to Lalaram (P.W.3) disclosing names of the accused.

7. According to Manoj (Ex.P/5) his father deceased Vidhyaram had informed him that he is going to look for persons stealing their pigs and had left their house at about 1.00 a.m. on his motorcycle. Since his father had informed him and his maternal uncle Ashok was also staying in their house at night, he and Ashok had followed Vidhyaram on their bicycle, when on reaching to Bhind Road, they found that Vidhyaram was chasing a taxi. He took a turn in a gali adjacent to New petrol pump and close to Pitambara Vatika, Auto stopped and from Auto alighted Rajendra Valmiki, Rakesh and another person. Rajendra had hit his father in the left rib with ballam and Rakesh and Deena had hit his father with kicks and fists, though they were armed with sword and desi katta respectively. According to Manoj (P.W.5), he had immediately informed his uncle Lalaram on phone and all the accused persons had ran away in the said auto. It is also mentioned that his uncle and two other persons had reached the spot and one of them namely Anil Sharma had called the police and thereafter police had also arrived at scene of crime.

8. Learned counsel for the appellants submits that there are 4 material contradictions in the statement of Manoj (P.W.5), inasmuch as according to Manoj, he had seen the incident. He had called his uncle Lalaram immediately but as per Ex.P/7 (FIR) Lalaram has mentioned that he had received intimation about crime at 6.30 a.m. However, in the FIR he had named Rajendra as a suspected accused, whereas according to Manoj he had given names of all the accused persons to Lalaram as he was already knowing them beforehand. It is also submitted that another contradiction is that though Vidhyaram was on motorcycle and Manoj (P.W.5) alongwith Ashok (P.W.7) left their home after 5-10 minutes of exit of Vidhyaram on their bicycle but they could catch Vidhyaram, which does not appear to be genuine. It is also pointed out that though Manoj has admitted in para 4 that Deena was armed with katta and Rakesh with sword, but in para 5 he admits that Rakesh and Deena had caused injuries to his father with kicks and fists. It is also submitted that though Manoj and Ashok had tried to intervene but they were admittedly not beaten. In para 6 of his cross-examination of Manoj (P.W.5), it has come on record that he had called Lalaram at about 01.15 hours and had informed him that Rajendra, Deena and Rakesh had caused injuries. It is also submitted that as per para 8 of cross examination, it is an admitted position that Anil had arrived at the scene of crime after about 20 minutes of the incident i.e. by that time, the assailants had already fled away from the scene. Manoj submits that he was so shocked that they had not taken his father to the hospital. Then he has admitted that no efforts were made to take his father to hospital on motorcycle, though he was knowing how to drive the motorcycle.

9. Ashok Tenduriya (P.W.7) on the contrary has, though supported first part that he was present in the house of Vidhyaram and when he was woken up by Manoj, he had accompanied Manoj and also that Rajendra had hit with Ballam and immediately thereafter Manoj had called Lalaram on phone and Lalaram had arrived at the scene of crime followed by police. Thereafter, as per Ashok (P.W.7) he and Lalaram had taken Vidhyaram to hospital on motorcycle. This is an apparent contradiction, inasmuch as Manoj (P.W.5) never corroborated this fact that his father was taken to hospital at motorcycle by Lalaram and Ashok. In fact, on the contrary, Lalaram (P.W.3) has deposed 5 that Rajendra had hit Vidhyaram with ballam. He is hearsay witness. He corroborates receiving call from Manoj on phone informing him about such incident committed by Rajendra, Deena and Rakesh but it is not explained as to why in the FIR he had narrated that he received information at 6.30 a.m. It is pointed out that Lalaram (P.W.3) in para 2 deposed that Ashok and Manoj had taken Vidhyaram to hospital in auto. This fact is contrary to the statement given by Manoj (P.W.5) and Ashok (P.W.7), therefore, this witness Lalaram (P.W.3) does not appear to be a reliable and trustworthy witness. In any case, he is not an eye witness. He is only the author of the FIR, which was recorded at about 07.00 a.m. It is further submitted that in para 10 of cross examination also Lalaram has admitted having information of the names of the assailants as were informed by Manoj (P.W.5) but has not explained as to why he had not mentioned such names to the police while lodging FIR (Ex.P/7).

10. It is submitted that appellants have been falsely implicated. There is no eye witness and merely because of suspicion appellants have been made accused. It is also submitted that in fact, no such incident had taken place on such date and the FIR is full of contradictions and needs to be rejected. It is submitted that because of faulty investigation and muscle powers of local goons, appellants have been convicted.

11. Learned counsel for the appellants also submits that the prosecution has failed to prove any earlier report as was lodged in terms of the statement given by Lalaram (P.W.3).

12. It is submitted that even Anil Sharma (P.W. 2) is not an eye witness. He has not identified any of the accused either by names or by their appearance. According to him, he is engaged in the business of truck operation and when at about 1.30-200 while returning home he met Manoj and Ashok who had informed him that Rajendra, Deena and Rakesh had killed Vidhyaram with ballam. It is submitted that he is a planted witness, inasmuch as when he had reached close to the death body, he had found Ashok, Manoj and Bhagchand, whereas Manoj (P.W.5) and Ashok (P.W.7) have not shown presence of Bhagchand at the scene of crime. Anil Sharma (P.W.2) has admitted that he came to know these names after lodging of FIR.

13. Bhagchand (P.W.9) has deposed that he was sleeping in his Jhuggi at about 1.30-2.00 a.m. on 25.4.2006 when he heard the sound for help. When he reached the place of crime, he found that Manoj had informed him that Rajendra and two of his accomplices had hit Vidhyaram with ballam. Thereafter, Anil Sharma had come and thereafter Vidhyaram was taken to hospital. This witness was declared hostile. In the cross examination, he has admitted that though he had seen certain persons running but had not seen their faces. He admitted that in his case diary statement (Ex.P/19), he had not mentioned names of the persons who had hit Vidhyaram with ballam. He has admitted that Vidhyaram was being taken to hospital then Lalaram, Ashok etc. met him on the way. This statement under Section 161 creates doubt about the prosecution story narrated by Manoj and Ashok and supported by Lalaramm.

14. Pointing out such discrepancies, it is submitted that even Ashok Kumar Upadhyay, Police Inspector (P.W.8) has admitted that in FIR (P.W.7) Lalaram had not given any information that Manoj had called him from place of incident and had given him names of the accused persons. He also did not mention that Manoj and Ashok had followed deceased Vidhyaram. He admitted that Lalaram is not an eye witness, yet spot map (Ex.P/8) was prepared on his identification. He has also admitted that at the time of preparation of Ex.P/2, Naksha Panchayatnama, names of the accused persons were not known though it contains signatures of Ashok (P.W.7) from 'C' to 'C' part, Lalaram (P.W.3) from 'B' to 'B' part and Ashok was accompanying Manoj (P.W.5) and therefore knew the names of the accused persons. He has also admitted that he had not recorded any memo under Section 27 of the Evidence Act for Deena and Rakesh.

15. On the basis of such facts, it is submitted that the case of the prosecution is based on hearsay evidence and appellants have been falsely implicated.

16. Learned counsel for the appellants has pointed out that though vide Ex.P/18, iron ballam marked as Annexure C recovered from Rajendra, a blood stained Pajama of Rakesh and blood stained half T-Shirt of Deena were sent for FSL report but no FSL report has been produced on record to show that any of 7 them contained blood of Vidhyaram as clothes of Vidhyaram were also sent for FSL examination. In Ex.D/1, Anil Sharma (P.W.2) has given his statement to the police that he is a truck operator and at about 6.30 a.m. he had seen crowd near Pitambara Vatika when he was informed that 3-4 persons had killed Vidhyaram sweeper with ballam. He later on changed his version and has submitted that he had seen the accused running after the incident at about 1.30 - 2.00 a.m. it is also submitted that no TIP was conducted for unknown accused persons.

17. Learned Public Prosecutor for the State on the other hand submits that chain of events is complete and conviction has rightly been recorded by the trial court. Learned Public Prosecutor submits that conviction has been recorded on the basis of the statements of Manoj (P.W.5) and Ashok (P.W.7), who have been believed by the learned sessions court disbelieving the statement of Ashok Upadhyay (P.W.8), who had conducted the investigation. It is submitted that minor omissions and aberrations in the prosecution story can not be made a ground for acquittal. He prays for maintaining the conviction as handed upon by the learned Sessions Court.

18. As has been discussed above, there are material omissions in the prosecution story. Manoj (P.W.5), Lalaram (P.W.3), Ashok (P.W.7) Anil Sharma (P.W.2) and Bhagchand (P.W.9) have given materially different versions.

19. Anil Sharma (P.W.2) in his statement given to the police (Ex.D/1) has mentioned that at about 6.30 a.m. he had seen the crowd and discovered the fact that Vidhyaram was killed by 3-4 persons with ballam used to kill pigs. On the contrary, in his court statement, he has mentioned that he was returning back from his work at about 1.30-2.00 a.m. when he had met Manoj (P.W.5) and Ashok (P.W.7), who had informed him that Rajendra, Deena and Rakesh had killed Vidhyaram with ballam. Therefore, apparently Anil Sharma (P.W.2) is not an eye witness. His testimony can not be believed.

20. Lalaram (P.W.3) has mentioned that deceased was his real brother. Five days prior to the incident, deceased had informed about stealing of his pigs and a report was made to Maharajpura T.I. No such report is on record. Lalaram (P.W.3) is the author of 8 FIR (Ex.P/7) in which he has mentioned that he received intimation about the incident in the morning at about 6.30 and had expressed his doubts that his brother was killed by Rajendra and his accomplices.

21. On the other hand, Manoj (P.W.5) gives another version that he had followed his father at about 1.00-1.30 and had seen his father being hit by Rajendra, Deena and Rakesh. He had identified the assailants and had immediately called his uncle Lalaram and had informed him about such names. Ashok (P.W.7) was with him. This is contrary to t he statement given in the FIR and in fact Ashok (P.W.8) admitted that Naksha Panchayatnama (Ex.P/8) was recorded immediately after recording of FIR in the presence of Lalaram, Ashok and others but Ashok despite knowing the names of the accused had not named anybody as assailants. Similarly, FIR (Ex.P/7) was lodged by Lalaram only on the basis of suspicion and suspicion can not take place of proof. Therefore, conviction of appellants merely on the basis of suspicion is not justified in the eyes of law.

22. The fact of the matter is that all the so called eye witnesses Manoj (P.W.5), Ashok (P.W.7), Bhagchand (P.W.9), Anil Sharma (P.W.2) and Lalaram (P.W.3) have given different pictures and time of the incident so also different modes of transport and different persons, who had taken deceased to the hospital creating doubt about the genuineness of the story of the prosecution.

23. It is submitted that in the absence of there being any eye witness, absence of any FSL report corroborating human blood stains on ballam and on the article of clothes seized from appellants No.2 and 3 makes it a fit case for acquittal.

24. In a democratic set up where 'rule of law' is of paramount importance, right of fair hearing and fair opportunity to defend are intrinsic right available to the citizens, at the same time, nobody can be falsely implicated.

25. Evidence of so called eye witnesses, Manoj (P.W.5) and Ashok (P.W.7) does not inspire confidence. Admittedly, Anil Sharma (P.W.2) and Lalaram (P.W.3) are not the eye witnesses. There is material contradiction. Thus, the maxim of falsus in uno falsus in omnibus though is not applicable in India, as has been 9 held in the case of Laxman Ram Vs. State of Rajashtan as reported in (2016) 12 SCC 389, but looking to the fact that witnesses have taken contradictory stand and their credibility is doubtful, it appears that the learned sessions court has not made any attempt to separate falsehood from truth and therefore since the facts are so inextricably intertwine, evidence of such witnesses namely Manoj (P.W.5) and Ashok (P.W.7) and case diary statement of Anil Sharma (P.W.2) calls for discarding the entire evidence and such discarding is permissible in the light of the law laid down in the case of Yogendra Vs. State of Rajasthan as reported in (2013) 12 SCC 399. Thus, this court finds that none of the witnesses are reliable and these contradictions have not been appreciated by the learned Additional Sessions Judge. Prosecution has failed to prove its case against the accused persons.

26. In view of the aforesaid, Appeal is allowed and the judgment and conviction of sentence is set aside. It is directed that if the appellants are in jail, they be released forthwith. Records be sent back to the trial court.

            (Sheel Nagu)                            (Vivek Agarwal)
               Judge                                    Judge
             24.05.2018                               24.05.2018
SP

           Digitally signed by SANJEEV
           KUMAR PHANSE
           Date: 2018.05.25 13:08:33
           +05'30'

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