Madhya Pradesh High Court
The State Of M.P. vs Gokul on 17 September, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2024:MPHC-JBP:47073
1 CRA-300-1996
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 17th OF SEPTEMBER, 2024
CRIMINAL APPEAL No. 300 of 1996
THE STATE OF M.P.
Versus
GOKUL
Appearance:
Shri G.S. Thakur, Public Prosecutor for appellant/State.
None for the respondent.
ORDER
Per: Justice Vivek Agarwal This appeal is filed by the State being aggrieved of the judgment dated 02.01.1995 passed by learned Sessions Judge, Khandwa in Sessions Case No.198/1992 recording a finding of acquittal from charge under Section 302 of IPC as was framed against the accused/respondent Gokul, son of Babulal.
2. Shri G.S. Thakur, learned Public Prosecutor submits that the evidence of eye witness Vijay (PW/3) is unrebutted and that is sufficient to record the findings of conviction against the accused person but trial Court has arbitrarily discarded his evidence and has recorded a finding of acquittal on the basis of surmises and conjunctures.
3. It is submitted that this is a fit case to grant leave and issue notice to the respondent for his presence, so that finding of conviction may be recorded Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 19-09-2024 15:51:18 NEUTRAL CITATION NO. 2024:MPHC-JBP:47073 2 CRA-300-1996 against him.
4. Reliance is also placed on the report of the Serologist (Ex.P/17) to point out that blood was found on the Kharaliya which was reported to be the weapon of offence and that when connected with the evidence of Vijay (PW/3) is sufficient to record conviction.
5. After hearing Shri G.S. Thakur and going through the record. First document which was recorded as an FIR (Ex.P/6) which was recorded at Police Station Kotwali Khandwa registering case Crime No.219/1992 under Section 294/336 of IPC. Author of this FIR is PW/2 Poorna Shankar, who happens to be the brother of deceased Shobharam.
6. In the FIR (EX.P/6), time of the incident is shown as 13:00 hours whereas time of reporting is shown as 15:30 hours.
7. In the FIR, it is mentioned that Shobharam and Gokul are neighbourers. They are residing on each side of the gali. There is a dispute between them on the aspect of gali. Gokul had 5-6 years back entered into some altercations between Shobharam and Sukhiya. Again on the fateful day i.e. on 29.03.1992, a dispute had occurred between Gokul and brother of the author of FIR, Shobharam, son of Bhagwan Kurmi in regard to the gali when it is alleged that Gokul had hurled filthiest of abuses and when Shobharam stopped him from accusing him, then Gokul had picked up a stone from the gali and had hit on the head of Shobharam, as a result of which Shobharam had fallen at the place of the incident. Then Gokul had dragged Shobharam till his house, where Poorna Shankar, Somchand, Sukhiya and Ramchand had seen the incident and helped Shobharam to free himself from the Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 19-09-2024 15:51:18 NEUTRAL CITATION NO. 2024:MPHC-JBP:47073 3 CRA-300-1996 clutches of Gokul and then brought to his house. In this FIR, there is mention of three witnesses namely Somchand, Sukhiya and Ramchand. All the three have not been examined by the prosecution. No explanation is given for their non examination. FIR is lodged at the instance of Poorna Shankar (PW/2). He did not show presence of Vijay (PW/3) and Laxmi Bai (PW/4) respectively son and wife of the deceased Shobharam in his FIR. Thus, it appears that these witnesses PW/3 and PW/4 have been planted subsequently as independent witnesses may have refused to support the case of prosecution.
8. Postmortem report is Exhibit P/8 that was conducted on 29.03.1992 at 5:15 p.m. Death is shown to have taken place within 24 hours of the postmortem. In the opinion, it is mentioned that death has occurred due to severe shock caused by brain injury which in turn was produced due to injury by some heavy object on the right side of head with high velocity.
9. The emphasis on word "high velocity" will leave no iota of doubt that a kharaliya which is reported by Shri G.S. Thakur, learned Public Prosecutor to be a bamboo stick fastened in a bullock cart to secure the material could not have been used as an object of offence with high velocity because PW/3 Vijay said that while he was taking his father Shobharam to his house then while climbing stairs from behind, Gokul, had hit, his father on his head with a kharaliya. Thus, the theory of high velocity gets discarded and leaves no iota of doubt that Vijay is a planted witness and he had not seen the incident. Police did not seize the stone as is mentioned in the FIR as an object of offence. In fact, Poorna Shankar categorically mentioned that he had seen Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 19-09-2024 15:51:18 NEUTRAL CITATION NO. 2024:MPHC-JBP:47073 4 CRA-300-1996 Gokul picking up a stone form the gali and throwing it on Shobharam. Thus, prosecution story in regard to presence of Vijay and Laxmi Bai, so also recovery of the kharaliya said to have been hit from behind as narrated by Vijay is not corroborated from the first report which was lodged by Poorna Shankar. Another interesting aspect is that Poorna Shankar has not shown the presence of Laxmi Bai or Vijay in the FIR. But when he is examined in the Court of law, he not only changed the object of attack from stone to kharaliya but also said that when accused was going to make second attempt, then he and Laxmi Bai had caught hold of him. Then he gives names of eye witnesses Vijay, Laxmi Bai and Ramchandra Patel. Ramchandra Patel is not examined before the trial Court. It is not clear that how name of Laxmi Bai and Vijay, which were not mentioned in the FIR (Ex.P/6) came to be planted in the examination in chief. In any case, PW/3 Vijay has discarded the presence of Poorna Shankar in his examination in chief. Thereafter, in cross- examination, he has said that apart from he himself, his father and Gokul nobody else was in the gali that discards presence of Laxmi Bai (PW/4) so also Poorna Shankar (PW/2) therefore, it is evident that the prosecution has unsuccessfully tried to concoct a story without there being any basis. When these contradictions are taken into consideration, then it is evident that none of the persons were present as an eye witness and they have been planted subsequently. Thus, finding of acquittal recorded by the learned Sessions Court cannot be faulted with as prosecution failed to discharge its burden to complete the chain of circumstances or to corroborate the evidence of eye witness especially when they chose to change the weapon of offence and Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 19-09-2024 15:51:18 NEUTRAL CITATION NO. 2024:MPHC-JBP:47073 5 CRA-300-1996 presence of persons available on spot as is mentioned in the FIR from stone t o kharaliya, Somchand, Sukhiya and Ramchand to Vijay and Laxmi Bai causing doubt on their presence.
10. The appeal fails and is dismissed.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
m/-
Signature Not Verified
Signed by: MONIKA
CHOURASIA
Signing time: 19-09-2024
15:51:18