Madhya Pradesh High Court
Hajarilal vs State Of M.P. on 17 January, 2019
1 Criminal Appeal No.525/06
High Court of Madhya Pradesh
Bench at Gwalior
DIVISION BENCH : Hon.Shri Justice Sanjay Yadav &
Hon.Shri Justice Vivek Agarwal
Criminal Appeal No.525/2006
Hazari Lal & Ors. ...... Appellants
Vs.
State of M.P. .....Respondent
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Shri R.K.Sharma, learned senior counsel with Shri V.K.Agarwal,
counsel for the appellants.
Shri J.M.Sahni, learned Public Prosecutor for the
respondent/State.
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Whether approved for Reporting :
JUDGMENT
(Delivered on this 17th day of January, 2019) Per Justice Vivek Agarwal :
This Criminal Appeal has been filed by the appellants being aggrieved by judgment dated 14.7.2006 passed by the Additional Sessions Judge, Chachoda, Distt. Guna, in Sessions Trial No.248/2004, whereby appellants have been convicted under Sections 147, 148, 302/149, 307/149 and 436/149 of IPC and sentenced to 1 year RI and to pay fine of Rs.200/- under Section 148 of IPC, life imprisonment and to pay fine of Rs.500/-, seven years RI with fine of Rs.200/- and five years RI with fine of Rs.200/-
each respectively.
2. Brief facts of the case as per prosecution story are that on 26.6.2004 at about 9 pm at village Hingoni injured witness Kailash (PW-1) was sitting with his brother Phoolsingh (deceased), his wife Mor Bai, his sister-in-law Shaitan Bai (wife of deceased Phoolsingh) and their son and daughter, namely Jagdish and Navli, when Shambhu, Hazari, Ramnarayan, Hari, Ramsingh, 2 Criminal Appeal No.525/06 Bharat armed with Farsi and Baijnath and Amarlal armed with Lathi with a common object and common intention reached the house and started beating complainant and Phoolsingh with Farsi and Lathi. Complainant Kailash sustained injuries on his right cheek, eye, whereas left leg of his brother Phoolsingh was cut and Basanti Bai and Kala Bai put their house on fire causing loss to the tune of Rs.40,000/-. It is mentioned that because of night and there being no conveyance available, FIR could not be lodged on the same day, but Dehati Nalishi (Ex.D/1) was recorded on the next day i.e. 27.6.2004 at about 12.20 pm. It has also come on record that except deceased appellant Hazari and present appellants, all other accused are absconding, therefore, charge-sheet was filed against them in their absence.
3. A perusal of Dehati Nalishi (Ex.D/1) reveals that Crime No.0/2004 was registered under the provisions of Sections 307/147/148/149/436 and 326 of IPC and investigation was carried out. Both the injured persons, namely Kailash and Phoolsingh, were subjected to medical examination vide Ex.P/2 and Ex.P/4 and thereafter Phoolsingh was referred to Guna and from Guna to Gwalior where he died. Postmortem (Ex.P/23) was carried out on the body of deceased Phoolsingh and on the basis of memorandum of accused Shambhu (Ex.P/9) Farsi was seized vide seizure memo (Ex.P/13). Similarly, memo of accused Ramsingh (Ex.P/20) was obtained and blood soaked soil, simple soil and one white Bundi were recovered from the spot vide Ex.P/5. Loss Panchnama (Ex.P/6) was prepared and thereafter spot map (Ex.P/8) was prepared by the police, so also Lash Panchayatnama (Ex.P/9). Patwari prepared Panchnama (Ex.P/12) and thereafter dead-body was handed over vide receipt Ex.P/11. Statements of 3 Criminal Appeal No.525/06 injured Kailash and deceased Phoolsingh were recorded as dying declaration though it has come on record that despite they being part of the record, they have not been exhibited. Accused were arrested vide arrest memo Ex.P/14 to Ex.P/18.
4. After investigation, police filed the charge-sheet in the Court of JMFC, Chachoda which committed the case to the Court of Sessions from where it was received by the trial Court for trial.
5. Charges under Sections 147, 148, 436/149, 302/149 and 307/149 of IPC were framed against the accused. The accused abjured their guilt and submitted that prior to the incident, reports Ex.D/6, Ex.D/7 and Ex.D/8 were lodged against complainant Kailash, deceased Phoolsingh and Jagdish and on account of such reports, they have been falsely implicated.
6. It is also not disputed that Kailash, Phoolsingh and accused Shambhu are real brothers. MLC was carried out by Dr. M.Bhagat (PW-3), whereas postmortem was carried out by Dr. J.N.Soni (PW-
16). Besides Kailash (PW-1), there are two more eye-witnesses, namely Shaitanbai (PW-4) and Nathulal (PW-12), father of the deceased, complainant Kailash and accused Shambhu.
7. It is also relevant to mention here that appellant No.1-Hazari has died during pendency of this appeal, and therefore, appeal has been abated against him vide order dated 10.1.2019.
8. Learned senior counsel for the appellants Shri R.K.Sharma submits that certain facts are admitted, namely accused Shambhu and deceased Phoolsingh so also injured Kailash are real brothers. It is also submitted that as per spot map (Ex.P/8) even house of Shambhu which has been marked as C was burnt due to fire and there is no specific evidence as to who had put the house on fire, therefore, it is submitted that appellants No.2-Smt. Kalabai and 4 Criminal Appeal No.525/06 appellant No.5-Basanti Bai have been falsely accused inasmuch as there are omnibus allegations against them and nobody will put their own house on fire as is apparent from the spot map (Ex.P/8). It is also submitted that Dehati Nalishi (Ex.D/1) is ante-dated, ante- timed and in fact prosecution did not choose even to exhibit FIR lodged in the matter and also the dying declaration obtained from Phoolsingh.
9. Reading evidence of Kailash (PW-1) in paragraph 17 (cross- examination), it is submitted that Kailash has admitted that his house was first put to fire at about 9 pm and then they were injured. Earlier Phoolsingh was attacked and later on he (Kailash) was attacked. Shambhu was carrying a Farsi of semi circle shape and at the time of incident Kalabai and Basantibai were inside the house of Shambhu. This witness was given a suggestion that at the time of incident Kalabai and Basantibai were with them, but this suggestion has been denied by him.
10. Similarly, Shaitan Bai (PW-4) has not given name of any specific person who had put their house on fire. She deposed that Shambhu had caused incised injury to Phoolsingh with a Farsi, so also Hazari and Ramsingh had caused incised injuries with Farsi to her husband. Accused Bharat and Ramnarayan had also caused injuries with Farsi and thereafter all the accused in dark had put her house on fire. In para 3 of her cross-examination, she has admitted that she cannot say that why Shambhu will put his own house on fire, then explains that he had kept his belongings at his in-laws place. She has also admitted that it was a dark night and there was no source of light. In paragraph 5 of her cross- examination, she has admitted that nobody had informed her as to who had put the house on fire. In para 6, she further clarified that 5 Criminal Appeal No.525/06 house was put to fire at 6 pm and thereafter this matter of putting the house on fire was reported at 11 pm to the local police.
11. Evidence of Nathulal (PW-12) has also been read in which he has deposed that his house was put to fire by Shambhu and houses of Kailash and Phoolsingh so also that of Shambhu were all burnt. Thus, reading testimony of three eye-witnesses who have been examined by the prosecution, it is submitted that neither there is any allegation against appellant No.2-Kalabai or appellant No.5-Basantibai that they were armed with any weapon or they exhorted or prompted any accused to perform any particular act and the allegation of putting the house of complainant on fire is an omnibus allegation and is not supported by the evidence of eye- witnesses, namely Kailash (PW-1), Shaitanbai (PW-4) and Nathulal (PW12), therefore, they have been wrongly convicted under Sections 147, 148, 302/149, 307/149 and 436/149 and they deserve to be acquitted and be acquitted.
12. Learned counsel for the appellants now addressing the Court for accused Shambhu and Ramsingh i.e. appellants No.3 and 4, submits that they have been falsely implicated as all the eye-witnesses Kailash (PW-1), Shaitanbai (PW-4) and Nathulal (PW12) have admitted that there was no source of light, and therefore, they could not have identified the accused. It is specifically pointed out that Kailash (PW-1) has admitted that there was no source of light. Reading testimony of Kailash (PW-1) in paragraph 12, it is pointed out that Kailash has admitted that he was not in a position to speak till Gwalior and names of Shambhu, Hazari and Ramsingh were given by Phoolsingh as per his information and similarly in paragraph 17 he has admitted that his house was put to fire earlier and incident had taken place 6 Criminal Appeal No.525/06 thereafter, whereas this is contrary to the version recorded in Dehati Nalishi (Ex.D/1) in which it is mentioned that accused had caused grievous injuries to Phoolsingh and Kailash with Farsi and Lathi and thereafter Basantibai and Kalabai had put their house on fire causing loss to the tune of Rs.40,000/-. Reading this testimony of Kailash (PW-1), it is submitted that Dehati Nalishi is ante-dated and ante-timed and has not been supported by its author Kailash (PW-1). It is also submitted that Nathulal (PW-12) has also not supported the case of the prosecution that present appellants Shambhu and Ramsingh had caused any injuries on the body of Phoolsingh or Kailash. He has made omnibus allegations and in fact he is not a reliable witness inasmuch as he was not present on the scene of incident. It is also pointed out that he has supported the case of the defence in para 3 when he has deposed that Kailash and Phoolsingh were lying unconscious and they were not in a position to speak. He has further deposed that when police had arrived, then Phoolsingh and Kailash had not informed anything to the police. Thus, relying on such statement of Nathulal (PW-12), it is submitted that appellants have been falsely implicated for the reasons mentioned above i.e. report was lodged by Shambhu and others against the complainant party at earlier point of time and later on with a view to settle scores, they have been falsely implicated.
13. Shaitan Bai (PW-4) has also admitted in paragraph 5 that night was dark and no light was there and it was raining, therefore, they could not extinguish the fire and only kept asking for help. It has also come on record that though intimation was given about their house being put to fire to the police on the same day at night, but police had not taken any action. Reading this kind of testimony 7 Criminal Appeal No.525/06 and also supporting the case of the defence that she had visited Gwalior with Kailash and Phoolsingh and she had not informed anything to anybody either at Chachoda, Guna or Gwalior that how such injuries were caused, it is submitted that even she is a planted witness and her testimony cannot be relied on, and therefore, acquittal should be recorded in favour of the appellants.
14. In support of his case, appellants' counsel has placed reliance on the judgment of the Supreme Court in the case of Fagu Manjhi and others Vs. State of Bihar and another as reported in 2003 SCC (Cri) 1045 wherein the ratio is that if it is not possible to hold with reasonable certainty that other accused persons also shared the common object alongwith the principal assailants for murdering the deceased, then they would be entitled to acquittal. Similarly, in the case of Bunnilal Chaudhary Vs. State of Bihar as reported in (2007) 1 SCC (Cri) 66 It has been held that under Section 149 of IPC, the liability of other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other persons knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of assembly, arms or behaviour on or before the scene of occurrence. If such knowledge may not reasonably be attributed to the other members of the assembly, then their liability for the offence committed during occurrence does not arise. Under such facts, it has been held that conviction of other accused persons is not sustainable and there appeal was allowed.
15. On the other hand, learned Public Prosecutor submits that it is true that FIR has not been exhibited. It is equally true that even dying declaration has not been exhibited and matter can be 8 Criminal Appeal No.525/06 remanded to the trial Court for taking further evidence on these limited issues exercising powers under Section 391 of Cr.P.C.
16. In reply, learned senior counsel for the appellants submits that before taking a decision as to whether authority under Section 391 of Cr.P.C. as is vested in this Court is to be exercised, it is necessary to appreciate firstly as to whether such fact is so vital that it will prejudice the case of the prosecution or that of the defence and secondly whether such further or additional evidence is mandatory to arrive at a just conclusion. It is submitted by learned counsel for the appellants that the provisions of Section 391 of Cr.P.C. are not intended to remedy the negligence or laches of the prosecution and provisions of this Section cannot be invoked to give the prosecution a second chance of proving their case. This provision can be invoked only when some evidence due to some oversight or some difficulty was not produced which is necessary, and therefore, matter should not be remanded.
17. As far as proving of FIR is concerned, Dehati Nalishi (Ex.D/1) has been proved. As per Section 154 of Cr.P.C. the starting point for any investigation is intimation of a cognizable offence and since on the basis of such intimation, Dehati Nalishi (Ex.D/1) has been registered and exhibited, failure of the prosecution to exhibit the FIR is not fatal to the case. In the case of Krishna Mochi and others v. State of Bihar as reported in AIR 2002 SC 1965 it has been held that even if the informant is not examined and FIR is not proved, it would not be a ground for acquittal, but the case would depend upon the evidence led by the prosecution.
18. In the present case, Dehati Nalishi (Ex.D/1) has been exhibited and that gives sufficient account of commission of a 9 Criminal Appeal No.525/06 cognizable offence, therefore, failure of the prosecution to exhibit the FIR is not so fatal so to throw the case of the prosecution overboard. What this Court is required to appreciate and take into consideration is that whether the evidence available on record is sufficient to indict the appellants or not.
19. Kailash (PW-1) in his examination-in-chief has specifically mentioned that Shambhu had caused injury with a Farsi on his left hand and then had thrown him on the floor. Similarly, he has made specific allegation against appellant Ramsingh that he had hit him with a Farsi on his head, eyes and cheek, but has not made any specific allegation against any other accused in regard to causing specific injury on the body of Phoosingh. Ramchander (PW-2) is not an eye-witness, but Shaitain Bai (PW-4) has categorically deposed about the role of Shambhu and Ramsingh. Shaitanbai has deposed in her examination-in-chief that on the fateful day Shambhu had cut her husband Phoolsingh with a Farsi. Hazari and Ramsingh had also cut her husband with Farsi. Therefore, there is a direct indictment of Shambhu and Ramsingh of causing fatal injuries to deceased Phoolsingh. This fact has not been controverted in cross-examination. In fact, there is no cross- examination so to say that witness Shaitan Bai was not present on the spot or that injuries attributed to Shambhu and Ramsingh are not medically corroborated. In fact, Dr. M.Bhagat (PW-3) has noted following injuries on the person of Phoosingh:-
(1) Incised wound over right forearm 6x5 cm, muscle cut, bone exposed, transverse. Clotted blood was present.
(2) Incised wound over left forearm near wrist 8 x 3 cm x muscle deep upwards to downwards. Clotted blood was present.
(3) Incised wound over left forearm near elbow 6x2 cm x muscle deep.
(4) Incised wound over lat. aspect of left upper arm 4 x 0.5 x0.5 cm upwards to downwards. Clotted 10 Criminal Appeal No.525/06 blood was present.
(5) Incised wound over left leg 8 x 5 cm x muscle & bone deep, bone exposed, transverse.
(6) Incised wound over lat. aspect of left thigh 5 x 2 cm x muscle deep, transverse.
(7) Incised wound over epigastric region, upwards to downwards towards right side 8 x 2 cm x muscle deep.
(8) Incised wound over occipital region 4 x 3 cm x scalp deep."
Dr. Bhagat opined that all the injuries were caused within 24 hours of MLC. Injuries No.1 & 5 were of serious nature and x-ray was advised to ascertain the nature of other injuries. Similarly, Dr. M.Bhagat (PW-3) had found following injuries on the body of Kailash :-
"(1) Incised wound over ant. surface of right thigh 3 x 0.5 cm x 0.2 cm, transverse.
(2) Incised wound over right knee 2 x 0.5 x0.2 cm transverse.
(3) Incised wound over ant. surface of left shoulder upwards to downwards 4 x 0.5 x 0.3 cm. (4) Incised wound over left forearm shaft transverse 6 x 3 cm muscle and bone cut.
(5) Incised wound over right side of face from right eyebrow mid supra-arbital region to right cheek angle of mouth, 10x 3 cm x muscle deep, bone deep. Eyeball exposed. Laceration over lat. corneal scleral junction. Tension low, cornea haze. Vision nil, underlying bones cut.
(6) Incised wound over forehead midline 4 x 2 cm x bone deep."
This doctor opined that injuries have been caused within 24 hours of MLC and injuries No.4,5 and 6 were of serious nature. This evidence is corroborated by the statement of Dr.J.N.Soni (PW-16) who had conducted postmortem on the body of deceased Phoolsingh and opined that all the injuries as are mentioned in postmortem report (Ex.P/23) are ante-mortem and homicidal in nature. His opinion is that death was due to shock and haemorrhage as a result of multiple injuries. Injuries are caused by sharp cutting object and homicidal in nature. These facts have not been controverted in cross-examination of Shaitan Bai (PW-4). 11 Criminal Appeal No.525/06 There is no separate cross-examination for appellant Ramsingh for whom learned counsel for the appellants has tried to make out a case that he belongs to another village situated 50 kms away and has been falsely implicated. Therefore, evidence of Shaitan Bai (PW-4) alone is sufficient and reliable to support conviction of appellants No.3 Shambhu and appellant No.4-Ramsingh even if aberrations, contradictions in the evidence of Kailash (PW-1) are overlooked.
20. In view of such facts and the evidence which has come on record, which is fully corroborated by the evidence of Dr.M.Bhagat (PW-3) and Dr. J.N.Soni (PW-16), not exhibiting dying declaration of Phoolsingh and not exhibiting the FIR are not so fatal so to necessitate this Court to take recourse of the provisions of Section 391 of Cr.P.C. and take additional evidence on its own or remand the matter for taking additional evidence. No extra benefit can be extended in favour of the appellants in the light of lacuna on the part of the prosecution to get such document exhibited and lead specific evidence in this regard.
21. As far as evidence which has come on record is concerned, it is apparent that there is no substantive and credit worthy evidence against appellant No.2 Smt. Kalabai and appellant No.5- Smt. Basanti Bai in regard to their putting the house of the complainant on fire or participating in commission of the alleged crime. In fact, house of Shambhu has also faced fury of the fire and was burnt. In view of such facts and the evidence given by Kailash (PW-1), Shaitan Bai (PW-4) and Nathulal (PW-12), conviction of appellant No.2 Smt. Kalabai and appellant No.5-Smt. Basanti Bai cannot be sustained and is hereby set aside.
22. As far as appellants Shambhu and Ramsingh are 12 Criminal Appeal No.525/06 concerned, evidence of Kailash (PW-1) and Shaitan Bai (PW-4) is carrying sufficient weight to show their direct involvement in causing injuries to the body of Phoolsingh, which proved fatal and resulted in his death on 30.6.2004, and also that to complainant Kailash, and therefore, their conviction and sentence under Sections 147, 148, 302/149, 307/149 and 436/149 deserves to be maintained and is maintained and therefore their appeal is dismissed.
23. Consequently, this appeal is allowed in relation to appellants No.2 and 5, namely Smt. Kalabai and Basantibai, and their conviction under Sections 147, 148, 302/149, 307/149 and 436/149 is set aside. However, this appeal in relation to appellants No.3 and 4, namely Shambhu and Ramsingh, is dismissed. It has come on record that appellants No.2, 4 and 5, namely Smt. Kalabai, Ramsingh and Basantibai, are on bail, whereas appellant No.3, Shambhu Jatav, is in jail. Bail bonds of Smt. Kalabai and Basantibai shall stand discharged and appellant- Ramsingh is directed to surrender before the trial Court to undergo the remaining sentence as imposed by the trial Court on or before 31.1.2019, failing which trial Court will be at liberty to issue arrest warrant against him. Record of the trial Court be sent back forthwith.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
ms/-
MADHU
SOODAN
PRASAD
2019.01.17
18:30:29 +05'30'