Madhya Pradesh High Court
Deepak vs The State Of Madhya Pradesh on 16 June, 2022
Author: Subodh Abhyankar
Bench: Satyendra Kumar Singh, Subodh Abhyankar
1
CRA No.393/2014
High Court of Madhya Pradesh, Jabalpur
Bench at Indore
D.B.: Hon'ble Shri Subodh Abhyankar
Hon'ble Shri Satyendra Kumar Singh, JJ.
ON THE 16TH OF JUNE, 2022
Criminal Appeal No.393/2014
Between: -
Deepak S/o Shri Krishnarao Kadam
Aged - 28 years, R/o Bus Stand Anjad,
Thana Anjad, District Barwani (MP)
Mahesh S/o Shri Heeralal Rajput
Aged - 24 years, R/o Ajaz Nagar, Anjad,
Thana Anjad, District Barwani (MP)
Motilal S/o Shri Ramesh Bheel
Aged - 22 years, R/o Bus Stand Anjad,
Thana Anjad, District Barwani (MP)
.....APPELLANTS
(By Shri Ashish Gupta, Advocate)
AND
The State of Madhya Pradesh
Through - Police Station: Anjad,
District Barwani (MP)
.....RESPONDENT
(By Smt. Mamta Shandilya, Government Advocate)
...............................................................................................................................
This CRIMINAL APPEAL coming on for order / judgment
this day, the court passed the following:
JUDGMENT
Per Subodh Abhyankar, J.
This appeal under Section 374 (1) of the Code of Criminal Procedure, 1973 has been filed by the appellants being aggrieved of their conviction and sentence.
The appellants stand convicted by the impugned judgment dated 08.01.2014, passed by the learned Special Judge, Barwani District Barwani (MP) in Sessions Trial No.48/2010, whereby, while holding the present appellants guilty, the learned Judge of the trail court has sentenced them, as mentioned herein below: -
2 CRA No.393/2014Accused Conviction Sentence Fine Amount Sentence in default of payment of fine Deepak s/o 302 of IPC Life Rs.5,000/- 3 months SI Krishnarao Imprisonment Kadam 25 (1-B) (a) of 1 year RI Rs.1,000/- 3 months SI Arms Act Mahesh s/o 302 of IPC Life Rs.5,000/- 3 months SI Heeralal Rajput Imprisonment Motilal s/o 302 of IPC Life Rs.5,000/- 3 months SI Ramesh Bheel Imprisonment 25 (1-B) (a) of 1 year RI Rs.1,000/- 3 months SI Arms Act
2. In brief, the facts giving rise to the present appeal are that on 12.12.2009, deceased Head Constable Sajjan Mishra was attached to Police Station Anjad, District Barwani (MP) for the purposes of investigation in connection with Crime No.207/2009 registered under Section 394 of Indian Penal Code, 1860. The deceased, with a view to carry out the search of the offenders, started for Gram Talwara Deb after making entry in Roz Namcha Sanha at Serial No.462 Ex.P/16, but he came back subsequently at around 12.20 PM and informed that appellants A1-Deepak, A2-Mahesh and A3-Motilal (armed with pistols) were moving around Hospital Square, Anjad, where he is heading and also informed to the Police Station to bring additional force. This entry is made at Roz Namchan Sanha No.465 proved as Ex.P/17.
3. On this information, complainant Head Constable Gajendra Singh (PW-6), together with a Constable Mahendra went to Hospital Square, Anjad which is recorded at Serial No.466 in Roz Namcha Sanha and proved as Ex.P/18. On reaching the Hospital Square, Anjad, they found that the appellants (Deepak Kadam, Mahesh Darbar and Motilal Bhilala) were firing at the deceased Sajjan Mishra in the shop of PW-2 Dilip Pal, the Photographer; and before this witness could reach the spot, the appellants boarded a blue colour Maruti Van bearing registration number MP-09 BA-
3 CRA No.393/20146278, and fled towards Rajpur. The incident is said to have been witnessed by Nathulal (PW-1), Dilip (PW-2) and Pramod (PW-5).
4. The Complainant Head Constable Gajendra Singh (PW-
6) took the deceased Head Constable Sajjan Mishra to the hospital, where the doctor declared him dead on account of gun shot injuries on his chest. Thus, First Information Report (FIR) Ex.P/20 was lodged by the complainant Head Constable Gajendra Singh (PW-6) and which was recorded by Head Constable Dulichand Patidar (PW-
4). A Marg was also registered under Section 174 of the Code of Criminal Procedure, 1973 vide Ex.P/21; and the investigation ensued and the appellants were also arrested on the same day, as it is alleged that the car in which they were fleeing from the spot, turned turtle after some distance and when the police reached the spot, they also fired gun shots on the police party but subsequently got overpowered by them. The appellants were brought to the Police Station and subsequently at their instance, pistols were recovered from the blue colour Maruti Car in which they were travelling and which met with the accident. Thus, the Police Personnel again went to the said place of accident of Maruti Car and recovered the pistols from the car.
5. During the investigation, the appellants' hands were washed with Silver Nitrate and its Gun Shot Residues (GSR) solution / liquid was sent for examination. Appellants' (Deepak and Motilal) fingerprints were also obtained and the fingerprints were also obtained from the pistols recovered at the instance of appellants (Deepak and Motilal). Their fingerprints were matched with the fingerprints found on the pistols and vide report Ex.P/31 it was found that they had fingerprints of appellants Deepak and Motilal. GSR Solution obtained from the appellants' hand wash was also sent to the Forensic Science Laboratory, Hyderabad and the Report of which came as positive vide Ex.P/32. FSL Report is Ex.P/30. The 4 CRA No.393/2014 ballistic report of the country made pistols was also obtained vide Ex.P/30. The case committed to the trial Court and was subsequently sent to the 2nd Additional Sessions Judge, Barwani, who, after recording the evidence, has convicted them, as aforesaid. Hence, this appeal.
6. Shri Ashish Gupta, learned counsel appearing for the appellants has submitted that the appellants have been falsely implicated in the case only on account of the initial information given by the deceased Head Constable Sajjan Mishra, that the appellants were roaming around with pistols in their hands.
7. Counsel has submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt, as the alleged eye witness Head Constable Gajendra Singh (PW-6) was not even present, when the incident took place, which is apparent from the fact that he has stated in his deposition before the Court that he and the other Constable Mahendra Pradhan took the deceased by holding his hands and legs, but there was neither the blood stains on the clothes of this witness nor the blood trail, as has been admitted to have been made by the bleeding of the deceased while he was taken to the concerned hospital by this witness with Mahendra Pradhan.
8. Counsel has also drawn the attention of this Court to the deposition of PW-10 Dr. J.P. Pandit who has conducted the post- mortem of the deceased, in para 7 of his deposition, has clearly stated that the body of the deceased was brought by Constable Rakesh and prior to that, Rakesh never intimated him about the incident which is clear a contradiction to the deposition of PW-6 Head Constable Gajendra Singh, who has stated in para 35 of his cross-examination, that he had left the deceased in the hospital as told by the doctor.
9. Counsel has also submitted that PW-6 Head Constable 5 CRA No.393/2014 Gajendra Singh, who was the Moharir in Police Station, Anjad has also admitted that Head Constable Moharir does not leave the Police Station except in exceptional circumstances, which has also been admitted by PW-11 Ramdas Bariya, the Investigating Officer of the case in 22, 27 and 28 of his cross-examination. It is also submitted that PW-6, admittedly did not take any weapon from the police station which demonstrate that his entire story is an afterthought as in his cross examination, he has also been suggested that he was not present on the spot which is apparent from the fact that in the police station's record, he was not issued any firearm because had he been given any firearm, he would have used it on the accused persons.
10. Counsel has also drawn the attention of this Court to Regulation No.592 of the Madhya Pradesh Police Regulations which provides that Head Constable Moharir shall not leave the Police Station.
11. It is further submitted that very surprisingly Constable Rakesh who took the deceased to the Hospital has not been examined by the prosecution, which gives a reasonable doubt as to the veracity of the case of the prosecution; and thus, these witnesses have been staged only to confirm the story of the prosecution which itself has no basis.
12. Counsel has also submitted that so far as the fingerprints received from the present appellants Depak and Motilal are concerned, while taking the fingerprints, the procedure as prescribed under Section 5 of the Identification of Prisoners Act, 1920 has not been followed, which is also admitted by the Investigating Officer in para 33 of his deposition.
13. In support of his contention, Shri Gupta has also relied upon the decisions rendered by the Supreme Court in the case of Shekhar v. The State of Madhya Pradesh, Criminal Appeal 6 CRA No.393/2014 th No.1044/2012 dated 9 February, 2017 as also another decision in the case of Badam Singh v. The State of Madhya Pradesh reported in 2004 Criminal Law Journal 22, to submit that merely because an eye witness account is available on record, it would not relieve the High Court from appreciating the entire evidence available on record and the correct approach would be to appreciate entire evidence in its entirety; and thus, it is submitted that merely because in the present case also, an eye witness account is available, when his presence itself is doubted and can demonstrably be shown on the basis of the documents proved on record, the appellants deserve the benefit of doubt.
14. Thus, it is submitted that the conviction so awarded to the appellants be set aside and the appeal be allowed.
15. Counsel for the respondent / State, on the other hand, has opposed the prayer and it is submitted that no case for interference is made out, as the learned Judge of the trial Court has rightly appreciated the evidence available on record including the forensic and the ballistic evidence.
16. Heard learned counsel for the parties and perused the record.
17. From the record, it is found that the FIR in the present case was lodged on 12.12.2009, at 13.40 hours in respect of the incident which is said to have taken place earlier in the day at around 12:45 PM. The FIR has been lodged by Head Constable Gajendra Singh (PW-6) who is said to be the eye witness of the incident, wherein Sajjan Mishra, the Head Constable, who was posted at Police Station Khetiya, was sent to Police Station Anjad to conduct investigation in respect of Crime No.207/2009, u/s.394 of IPC. It is said in the FIR that at Entry No.462 of 1212 of 2009, Sajjan Mishra recorded in his own handwriting that he is proceeding for the 7 CRA No.393/2014 investigation of the said offence, however, he again came back to the Police Station and informed that appellants Deepak Kadam, Mahesh Darbar and Motilal Bhilala are roaming around at Hospital Square with country made pistols in their hands, hence, I am going there and you come with Police Force and after coming to know about this information given by Sajjan Mishra (the deceased), PW-6 Gajendra Singh along with another Head Constable Mahendra proceeded to the spot at Hospital Square where he found that in Dilip Photographer's shop, Sajjan Mishra was standing and at whom the present appellants Deepak Kadam, Mahesh Darbar and Motilal Bhilala were firing with their country made pistols and before Gajendra Singh could reach near Sajjan Mishra, the accused persons ran away from the spot in a blue Maruti Van bearing registration number MP-09 BA-6278 towards Rajpur. It was also stated that this incident was also witnessed by Dilip Pal, Pramod @ Prabhu Sahu and other persons who were standing nearby. This witness Gajendra Singh (PW-6) and Head Constable Mahendra took the deceased to the Hospital wherein the doctor informed them that Sajjan Mishra has already died, as he had received gun shot injuries on his chest.
18. From the record, it is found that even in such a case of brutal murder of a head constable in broad day light, once again, none of the independent witnesses have supported the case of the prosecution.
19. PW-1 Nathulal who had seen the incident has not supported the case of the prosecution; and in fact, it is stated by him that he was not present on the spot and had gone to the marriage.
20. Even the other important eyewitness, PW-2 Dilip, the owner of the photo studio in which the deceased Sajjan Lal Mishra was murdered, has also not supported the case of the prosecution, although he has not denied his presence on the spot but it is stated by 8 CRA No.393/2014 him that he saw the deceased whose name he does not know, sitting outside his shop on a stool, at that time, three persons came in a Maruti Van, all of whom had covered their faces with masks and thereafter a gun shot was fired. However, he does not know as to what happened in this shop as after shooting the deceased Head Constable, the accused persons ran away from the spot in the same van. At that time, after this incident, Police Personnel also came along with many other persons. Although this witness has admitted his signatures on Ex.P/11, however, he has denied the contents of the same; and Ex.P/12 also.
21. PW-4 Duli Chand Patidar is also a Head Constable. He has proved the Roz-namcha Register Ex.P/16, P/17 and P/18 respectively. Vide Ex.P/16-C the deceased Head Constable Sajjan Mishra proceeded to investigate Crime No.207 of 2009 under Section 394 of IPC at 11.12 AM. Thereafter, vide P/17, at 12.20 PM, Head Constable PW-6 Sajjan Mishra came on his motorcycle back to the Police Station and informed that appellants Dipak Kadam, Mahesh Darbar and Motilal Bhilala were roaming around at Hospital Square along with country made pistols in their hands and he is going there and also asked the people present in the Police Station to come with Police Force. This information is recorded at Roz- namcha Entry No.465. Thereafter, at 12.30 PM, Head Constable Gajendra Singh and Constable Mahendra Singh took off to Hospital Square and also took wireless set with them which is proved as Ex.P/18-C regarding Roz-Namcha Entry No.466. At 12.50 PM, HC Gajendra Singh informed through wireless set that at the Hospital Square Sajjan Mishra, Head Constable has been murdered by appellants Deepak, Mahesh and Motilal, hence, Police Force be sent immediately. This information was conveyed by him to the Station House Officer (SHO) Bariya and on wireless set also to C.R. 9 CRA No.393/2014 Barwani at Roz-Namcha Entry No.467, which is proved as Ex.P/19. The FIR Ex.P/20 was also written by this witness at Crime No.27 of 2009 under Section 302/34 of IPC against appellants Deepak S/o Kishrna Maratha, Mahesh S/o Hiralal Rajput and Motilal S/o Ramesh Adiwasi of Anjad. This witness has admitted that as per Roz-Namcha Entry No.460, at around 11:15 PM, Constable Mahendra was sent to deliver some dak (post). He has admitted that from Police Station Anjad to Hospital Square, there is a distance of around one kilometre. He has also admitted that when at 12.20 PM when Sajjan Mishra came into the Police Station, at that time, Head Constable Gajendra Singh (405), Mahendra (294) Lok Ayukta Constable Mahendra Bahiya SHO, Constable Bharat and Rakesh were also present in the Police Station. However, this intimation has not been mentioned in the Roz-Namcha regarding the presence of the other persons in the Police Station. He has also admitted that at Entry No.471 of Roz-Namcha Gajendra Singh's return time has not been mentioned.
22. PW-5 Pramod Sahu is yet another eye witness and to the misfortune of the prosecution, he has also not supported the case of the prosecution, although he has admitted that he knows the accused persons, but has clearly deviated from his earlier version and has feigned ignorance about the appellants' involvement in the offence. He has also denied any seizure having effected or made in his presence. He has also denied that before him, the appellants' hands were washed in Nitric Acid and its solution was preserved.
23. For the reasons best known to the prosecution, Head Constable Mahendra who had also accompanied HC PW-6 Gajendra Singh to the spot and was also an eye witness to the murder, has not been examined. This leaves us with the only one eye witness, PW-6 HC Gajendra Singh whose presence on the spot has been tried to be 10 CRA No.393/2014 demolished by the defence by his extensive cross-examination. His presence on the spot has been doubted on the following grounds: -
Firstly, that he happens to be the Head Constable Moharir of the Police Station who is not supposed to leave the Police Station, except in exceptional circumstances.
Secondly, he has also stated that there was trail of blood, when he and Constable Mahendra took the deceased to the Hospital. However, there was no blood trail present on the spot. Thirdly, he has also stated that he knew the doctor J.P. Pandit and informed him that the injured is HC Sajjan Mishra. Fourthly, he has also been suggested that the deceased Sajjan Mishra never came to the Police Station on 12.12.2009, as there is no entry of his arrival noted in the Roz-Namcha Sahana, to which he has agreed.
Fifthly, he has also been asked as to whether the deceased was having a mobile phone, to which he has feigned ignorance. However, this fact has been admitted by PW-7, the brother of the deceased that the deceased was having a mobile with him at the time when the incident took place.
24. Thus, PW-6 Gajendra Singh has been asked that had it been a case that the deceased was already having a mobile phone, he could easily have called the Police Station to inform that the accused persons are roaming around with guns in their hands and in such circumstances, it was not necessary for him to go to the Police Station only to inform that the accused persons are so roaming around, to which also, this witness has feigned ignorance and has stated that it is up to the discretion of the concerned officer as to whether he would like to make a call or would like to come to the Police Station. He has also been suggested that after Sajjan Mishra left the Police Station, this information came to the Police Station 11 CRA No.393/2014 that Sajjan Mishra has been murdered by some unidentified persons covering their faces, to which he has denied. He has also admitted that he and Constable Mahendra did not take any weapon from the Police Station, despite knowing that the accused persons were having firearms with them. He has admitted that in Ex.P/19 Roz- Namcha Entry, there is no mention of Maruti Van or its colour or its registration number and it is also not mentioned in it that the accused persons have run away from the spot. He has also admitted that when he and Mahendra started from Police Station, after receiving information from Sajjan Mishra, at that time, TI Bariya, Constable Vinod, Constable Kunwar Singh, Constable Bharat and Constable Rakesh were also present in the Police Station and the vehicle was also available in the Police Station, as also its Driver Ishwar. He has also admitted that in Ex.P/23, which is the spot map, various places have not been shown like where Sajjan Mishra was standing, from where the accused persons Deepak, Mahesh and Motilal fired shots, where in the Gumti, the appellants were standing, where the Maruti Van was parked. It is also not shown in the spot map as to in which direction the accused persons ran from the spot from their Maruti Van. He has also admitted that in Roz-Namcha Entry No.472, 473 and 474 proved as Ex.P/2, P/3 and P/4, there is some interpolation in the numbers. He has also been suggested that Roz-Namcha No.471 to 475 original pages have been removed and, in its places, different pages have been inserted, which are not printed in format. He has also feigned ignorance if from the possession of the deceased Sajjan Mishra, a watch, a mobile phone and a sum of Rs.1,275/- (rupees one thousand two hundred and seventy five) has been recovered, although this fact has been proved by PW-7 Sanjay Mishra, the brother of the deceased Sajjan Mishra. He has also admitted that nowhere in the Roz-Namcha Sahana, it is mentioned that Sajjan 12 CRA No.393/2014 Mishra was appointed for secret work. He has denied that at the time of incident the deceased was not wearing a uniform.
25. It is also found that PW-11 Inspector Ramdas, who is also the investigating officer, in para 25 of his cross-examination has admitted that some photographs from inside the Gumti were also taken which have been filed with the charge sheet, however, from the photographs available on record of the trial Court, though not proved, it is apparent that the deceased Sajjan Mishra was not wearing the uniform at the time of incident which again belies the testimony of PW-6 Gajendra Singh that the deceased was wearing the uniform at the time of incident.
26. PW-10, Dr. J.P. Pandit has stated that he was posted at Primary Health Centre, Anjad on the post of Medical Officer on 12.12.2009 when Constable Rakesh No.290 had brought the deceased Sajjan Mishra for examination and his post-mortem was conducted by a Team of Three Doctors (himself, Dr. Pramod Gupta and Dr. Prakash Barfa) of District Hospital Barwani. In the post- mortem report Ex.P/28, it has been found that the deceased had suffered five injuries on his chest all of which were caused by gun shots; on his head also, two injuries were found, both of them were caused by hard and blunt object only; and the cause of death is due to haemorrhage and resultant shock due to internal bleeding. He also found three bullets in the body of the deceased. In his cross- examination, he has admitted that the deceased Sajjan Mishra was brought to the hospital by Constable Rakesh only and prior to Rakesh no other Constable ever spoke to him regarding the incident, which is in clear contradiction to the deposition made by PW-6 Gajendra Singh.
27. PW-11 Ramdas is an Inspector at Police Line Rajgarh. He is a witness to preparation of various memos. According to him, 13 CRA No.393/2014 he had arrested appellants Deepak, Mahesh and Motilal in front of witnesses vide panchnama Ex.P/3, P/4 and P/5. He also seized a country made pistol from the A1Deepak vide Ex.P/6, from A2 Motilal a country made pistol was seized from him vide Ex.P/7. This witness also washed the hands of the accused persons in Silver Nitrate and its samples for GSR test were collected and sent to the Laboratory for their report. He has also admitted that he took the finger prints of the appellants through Ex.P/31 which was sent to the Central Forensic Science Laboratory, Hyderabad vide Ex.P/32. He has admitted that at Roz-Namcha Entry No.462 dated 12.12.2009, deceased Sajjan Mishra has not signed. He has also been suggested that the Roz-Namcha Register's page of 12.12.2009 has been removed and in its place, a new roz-namcha has been inserted. He also admitted that in the Roz-Namcha, it has not been mentioned as to who have shot the deceased Sajjan Mishra. He has admitted that the accused persons were arrested by Sub Inspector Anis Khan and they were brought to the Police Station at 16:40 Hours, in connection with a case under Section 307 of IPC. He has admitted that he has not made Anis Khan who had arrested the appellants as a witness in this case as to from where and how he came to arrest the present appellants. He has also admitted that from the Gumti where the deceased's body was lying to the Hospital there was no trail of blood he found on the spot. He has denied the suggestion that, that in the present case being sensitive in nature, every direction was issued by the Senior Officers only and on their instructions only the evidence has been created. He has admitted that he has not taken any information from the RTO Office regarding the ownership of the Maruti Van and has denied that he has, in fact, obtained the information, but as it was not connecting the appellants to the offence, hence, this information has deliberately been suppressed.
14 CRA No.393/2014He has also admitted that prior to taking the imprints of the appellants' finger, no permission was obtained from any Judicial Magistrate. He has also admitted that before taking the GSR Sample of the appellants' hands, no prior permission of Judicial Magistrate was taken. He has also denied that because it was a case of murder of a Police Personnel, Head Constable Gajendra Singh has been made a false witness.
28. From the aforesaid evidence led by the prosecution, it is apparent that all the other eye witnesses have not supported the case of the prosecution, except PW-6 Gajendra Singh who happens to be a Head Constable of Police. Thus, this Court is required to weigh the evidence on record. In the light of the deposition of PW-6 Gejendra Singh.
29. At this juncture it would be germane to refer to the decision rendered by the Supreme Court in the case of Badam Singh (supra), the relevant para of the same read as under:-
"16. The learned Sessions Judge after considering the evidence on record and accepting the evidence of the eye witnesses found the appellant guilty of the offence under Section 302 I.P.C. and sentenced him to imprisonment for life. The High Court by its impugned judgment dismissed the appeal preferred by the appellant. We have perused the impugned judgment of the High Court. The High Court which was the first Court of Appeal did not even carefully appreciate the facts of the case. It mentions that the FIR was lodged by PWs-5 and 6 whereas the fact is that the FIR was lodged by PW-4, the Forest Officer. Without subjecting the evidence on record to a critical scrutiny, the High Court was content with saying that the three eye witnesses having deposed against the appellant, the prosecution had proved its case beyond reasonable doubt. In our view, the High Court has not approached the evidence in the manner it should have done being the first Court of Appeal. The mere fact that the witnesses are consistent in what they say is not a sure guarantee of their truthfulness. The witnesses are subjected to cross- examination to bring out facts which may persuade a Court to hold, that though consistent, their evidence is not acceptable for any other reason. If the Court comes to the conclusion that the conduct of the witnesses is such that it renders the case of the prosecution doubtful or incredible, 15 CRA No.393/2014 or that their presence at the place of occurrence as eye witnesses is suspect, the Court may reject their evidence. That is why it is necessary for the High Court to critically scrutinize the evidence in some detail, it being the final court of fact. We have therefore gone through the entire evidence on record with the assistance of counsel for the parties."
(Emphasis supplied)
30. A close scrutiny of the evidence brought on record by the prosecution and the deposition of PW-6 Gajendra Singh Chouhan indicates that the deceased Head Constable Sajjan Mishra was actually posted at Police Station Khetiya, however, he was attached to Police Station Anjad in respect of investigation for an offence registered at Police Station Anjad in Crime No.207 of 2009, although no such order of attachment is on record. From the Roz-Namcha produced on record, it is also apparent that Sajjan Mishra's arrival at the Police Station has not been recorded anywhere. However, at Roz-Namcha Entry No.462 Sajjan Mishra himself has recorded that he is going to Gram Talwara Deb in search of accused Pintu Gole in respect of Crime No.207 of 2009 under Section 394 of IPC. This entry is made at 11:12 AM. However, at 12:20 PM Sajjan Mishra comes back to the Police Station and informs that appellants Deepak Kadam, Mahesh Darbar and Motilal Bhilala are roaming around at Aspatal Chowk (Hospital Square) and he also requested the person who was present in the Police Station to reach to the spot with force. However, this entry, in the considered opinion of this Court, appears rather doubtful, as has been rightly contended by the counsel appearing for the appellants, that when the deceased Sajjan Mishra himself was carrying a mobile phone, it does not appeal to our senses that he would come back to the Police Station only inform about the appellants' roaming around with country made pistols in their hands. He could easily have called the Police Station and in the meantime, kept an eye on the accused persons, but instead of calling 16 CRA No.393/2014 to the Police Station from his mobile, he chooses to go back to the Police Station, thereby leaving the accused persons in the market, which conduct, in the considered opinion of this Court, appears rather unnatural.
31. This Court also finds it rather difficult to accept that despite an intimation being given to the Police Station that three persons having firearms in their possession are roaming around in the open market, the Police Personnel who are dispatched from the Police Station to the said place of incident where the accused persons were roaming around, would not go armed with firearms to tackle any untoward situation. It is also found that at Roz-Namcha Entry No.467, PW-6 Gajendra Singh Chouhan has informed through wireless set to the Police Station that near Aspatal Chowk (Hospital Square) Sajjan Mishra Head Constable has been shot at by the accused persons Deepak, Mahesh and Motilal and it was requested that the force be sent immediately. However, surprisingly Pw/6 Gajendra Singh Chouhan has not informed to the Police Station that the accused persons have already absconded from the scene in a blue Maruti Van and are headed in a particular direction towards Khetiya. In the considered opinion of this Court, if the accused persons had already absconded from the spot in a blue Maruti Van, then there was no reason for the Head Constable PW-6 Gajendra Singh to call the Police Force to the spot where the deceased was lying and in fact, when the deceased was already taken by the said Head Constable to the hospital. This Court also finds that as per the case of the prosecution, all the three accused persons were subsequently arrested without the police firing even a single shot. The accused persons have also not suffered any injury at all, during their arrest from the blue Maruti Van, despite all of them were said to be trigger happy and had already committed the murder of a police man. In such 17 CRA No.393/2014 circumstances, the arrest of the appellants also become rather doubtful.
32. So far as the testimony of Gajendra Singh (PW-6) is concerned, he in no unclear term has stated in his deposition that he and Constable Mahendra took the deceased to the Hospital where they met Dr. J.P. Pandit (PW-10) whereas Dr. Pandit in his deposition clearly stated that it was only Head Constable Rakesh who had approached him and has not even mentioned that there was any other Police Personnel also present at the time when the body of the deceased was brought to the Hospital. Surprisingly, neithr HC Rakesh nor the Head Constable Mahendra has been examined by the prosecution, for unknown reasons.
33. PW-10 Dr. J.P. Pandit has also admitted in his cross examination that he does not know as to in which packet the bullets which were recovery from the body of the deceased were kept. He has also admitted that the aforesaid packets were given to some Constable, but his signatures were also not obtained in the Hospital's Register.
34. Yet another surprising aspect of this case is that the prosecution has also not proved the list of articles which were seized from the spot and from the doctor, to the Forensic Science Laboratory. In such circumstances, in the absence of such list of articles, it is absolutely impossible to decipher the FSL Report on its own. In the absence of list of articles, only on the basis of the FSL Report, it is not possible to tell as to which bullet was seized from where and which pistol was seized from which of the accused. Otherwise, in the FSL report. In such circumstances, the FSL Report Ex.P/30 itself becomes a highly doubtful document. So far as Ex.P/29 is concerned, which is stated to be the list of articles sent to the FSL, it is not actually the said list of Articles. In fact, it is a list 18 CRA No.393/2014 of various samples of Nitric Acid which were collected, after washing the hands of the accused persons which is called the GSR (gun shot residue) Test. In such circumstances, Ex.P/30 does not supplement Ex.P/29 which is a different list of items.
35. Appellants' finger on the country made pistol recovered from them have been proved vide Ex.P/31. However, admittedly, before taking there finger prints, no permission was taken by the concerned Police Officer from the concerned Magistrate, as provided under the Identification of Prisoners Act, 1920; Sections 2, 3, 4 and 5 of the same read, as under: -
"2. Definitions.--In this Act, unless there is anything repugnant in the subject or context,--
(a) "measurements" include finger impressions and foot- print impressions;
(b) "police officer" means an officer in-charge of a police-
station, a police officer making an investigation under Chapter XIV of the 4Code of Criminal Procedure, 1898 (5 of 1898), or any other police officer not below the rank of Sub-Inspector; and
(c) "prescribed" means prescribed by rules made under this Act
3. Taking of measurements, etc., of convicted persons.
-- Every person who has been--
(a) convicted of any offence punishable with rigorous imprisonment for a term of one year or upwards, or of any offence which would render him liable to enhanced punishment on a subsequent conviction; or
(b) ordered to give security for his good behaviour under section 118 of the 5Code of Criminal Procedure, 1898 (5 of 1898), shall, if so required, allow his measurements and photograph to be taken by a police officer the prescribed manner.
4. Taking of measurements, etc., of non-convicted persons.-- Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner.
5. Power of Magistrate to order a person to be measured or photographed.-- If a Magistrate is satisfied that, for the purposes of any investigation of proceeding under the Code of Criminal Procedure, 19 CRA No.393/2014 1898 (5 of 1898), it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be 3 produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer:
Provided that no order shall be made directing any person to be photographed except by a magistrate of the first class:
Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding."
36. It is apparent from the aforesaid provisions of the Identification of the Prisoners Act, 1920 that a finger print of an accused who is facing trial or if he is arrested in connection with an offence punishable with imprisonment for a term of one year or upwards cannot be taken without the prior permission of the Magistrate and in the present case, admittedly no such permission has been obtained by the prosecution. In such circumstances, the finger prints of the appellants herein obtained in the police station by the police personnel on their own, cannot be relied upon for any purpose at all, as it would not be admissible in evidence having obtained contrary to the provisions of law specifically made for the purpose of taking measurements of the accused persons which includes finger impressions and foot print impressions.
37. Para 84 of the impugned judgment reads, as under: -
"84- vfHk;kstu lk{kh vfuy dqekj ikVhnkj ¼v-lk-12½ ds dFku esa ;g rF; vk;k gS fd mlus vkj{kh dsUnz vatM+ tkdj tIr'kqnk fjokWYoj ij ls pkal fizaV fy;s Fks] ftuds QksVks Msoyi dj mlds ikl Hksts x;s FksA dwV&ijh{k.k esa ;g rF; Hkh vk;k gS fd nksuksa fjokWYoj lhycan voLFkk esa mlds le{k izLrqr gq, Fks] tks fd ,d egRoiw.kZ ifjfLFkfr gSA lk{kh ds dFku esa ;g rF; Hkh vk;k gS fd feyku gsrq mlds ikl vkjksihx.k ds vaxqyh fpUg ^lpZ fLyi^ Hksth x;h FkhA vfHk;kstu }kjk vkjksihx.k ls fy;s x;s vaxqyh fpUg uewus tks ijh{k.k gsrq fy;s x;s Fks ds laca/k esa dksbZ iapukek ;k dh x;h dk;Zokgh dks izLrqr ugha fd;k x;k gSA vuqla/kkudrkZ jkenkl ckfj;k ¼v-lk-11½ }kjk Hkh bl 20 CRA No.393/2014 laca/k esa dksbZ dFku ugha fd;k x;k gS] dsoy vaxqyh fpUg ysus dk dFku fd;k x;k gSA ,sls egRoiw.kZ izdj.kksa esa ,slh mis{kk ;k dk;Zokgh fuf'pr gh :i ls fpark dk fo"k; gSA vfHk;ksx&i= izLrqfr ds iwoZ ^ofj"B vf/kdkjh^ ,oa ^ftyk vfHk;kstu vf/kdkjh^ }kjk leh{kk djrs gq, vfHk;ksx&i= izLrqfr dh vuqefr nh tkrh gS] ;g rF; n'kkZrk gS fd muds }kjk Hkh vius drZO;ksa dk fuoZgu mfpr :i ls ugha fd;k x;k gSA ,slk ugha gS fd blh izdj.k esa ,slk ns[kk x;k gS] dbZ egRoiw.kZ izdj.kksa esa fujarj ,slk ns[kus esa vk jgk gSA ^fo}ku fo'ks"k yksd vfHk;kstd^ dks Hkh bls ns[kuk pkfg, Fkk] muds }kjk Hkh ,slh =qfV fujarj dh tkrh gS] ftldk ykHk fuf'pr gh :i ls vkjksihx.k dks izkIr gksrk gSA "
38. So far as the gun shot residue found in the samples taken from the appellants' hands is concerned, its value is only supplemental in nature and cannot, by itself be held to be sufficient to hold an accused guilty. As it has been observed by the Supreme Court in the case of C.T. Ponnappa v. State of Karnataka, (2004) 11 SCC 391, the relevant paras, no.7 & 8 of the same read as under:-
"7. The next circumstance was that the gun was found in the house in which the appellant was residing with his mother and according to the ballistic expert report, firing was resorted to from the same gun. Gun belonged to the father of the parties and there is nothing to show that it was made over by the father to the appellant. The gun was recovered from joint family house in which the appellant and his mother, both were residing. Merely because the shot was fired by the said gun, it cannot show complicity of the appellant in the crime. Thus, we are of the view that the prosecution has failed to prove this circumstance by credible evidence.
8. Last circumstance against the accused was that his hand wash was taken and the same contained gunshot residue according to the report of the ballistic expert. It is true that this circumstance has been proved, but the same alone cannot form the basis for conviction of the accused as in a case of circumstantial evidence it is well settled that there must be a chain of circumstances and this solitary circumstance cannot be said to form a chain so as to fasten guilt upon the accused and on the basis of the same, irresistible conclusion, which is incompatible with the innocence of the accused cannot be drawn. In view of the foregoing discussions, we are of the opinion that the prosecution has failed to prove its case beyond reasonable doubt and the High Court was not justified in upholding conviction of the appellant."
(emphasis supplied)
39. In view of the aforementioned discussion on the 21 CRA No.393/2014 evidence led by the prosecution and also on the law laid down by the Supreme Court, this court finds it difficult to come to a conclusion that the prosecution has proved its case beyond reasonable doubt as this court has found that PW-6 Gajendra Singh's presence on the spot was doubtful. Constable Rakesh 290 whose name, designation and number has been mentioned by PW-10 Dr. J.P. Pandit, has not been examined as also Head Constable Mahendra who is said to have accompanied PW-6 Gajendra Singh has also not been examined by the prosecution which is rather intriguing. It is also surprising as to why the deceased Sajjan Mishra was not wearing his uniform at the time of incident when he was also said to be on duty. The forensic investigation of the case has also been found to be clumsily carried out so much so that even the FSL report Ex.P/30 is not supported by the requisition memo, in the absence of which it is not possible to read the FSL report, and the finger prints of the appellants were also not obtained by adopting the proper procedure as prescribed under the Identification of Prisoners Act, 1920.
40. Resultantly, this court is inclined to give benefit of doubt to the appellants and as a natural corollary, the impugned judgement is hereby set aside, the appellants are acquitted and as they are lodged in jail since last 12 (twelve) years [as they are in jail since 12.12.2009], they be released forthwith if not required in any other case.
The Appeals stand disposed of.
(Subodh Abhyankar) (Satyendra Kumar Singh)
Judge Judge
Pithawe RC
RAMESH CHANDRA PITHWE
2022.06.17 11:09:13 +05'30'