Madhya Pradesh High Court
Sangram Singh And Ors. vs The State Of M.P. on 25 May, 2017
Bench: N.K. Gupta, S.K.Awasthi
1 Criminal Appeal No.266/2005
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
HON'BLE SHRI JUSTICE N.K. GUPTA
&
HON'BLE SHRI JUSTICE S.K.AWASTHI
CRIMINAL APPEAL NO. 266 OF 2005
Sangram Singh and others
Vs.
State of Madhya Pradesh
For the appellant : Shri Padam Singh, Advocate.
For respondent- : Dr. Anjali Gyanani, Public
State Prosecutor.
JUDGMENT
(25/05/2017) Per Justice S.K.Awasthi:
The appellants have preferred the present appeal under Section 374 (2) of the Code of Criminal Procedure (CrPC) upon feeling aggrieved by the impugned judgment dated 4.3.2005 passed by the Second Additional Sessions Judge, Shivpuri in Sessions Trial No.236/2004, whereby the appellants/accused Mahipal Singh and Pappu @ Chandrapal Singh have been found guilty for commission of offence punishable under Section 302 of IPC and appellant/accused Sangram Singh has been found guilty of Section 302 with the help of Section 34 of IPC and all of them have beed sentenced to life imprisonment with fine of Rs.1000/- each.
(2) The prosecution's case, in short, is that on 20.9.2004 one Bhaiyalal Yadav lodged an FIR in Police
2 Criminal Appeal No.266/2005 Station Badarwas District Shivpuri stating that, last evening the cattle belonging to his brother Lakkhu accidentally entered in the field owned by Mahipal Singh, which led to heated exchange between them. Thereafter, on 20.9.2004 at about 9-10 am, when his nephew Veer Singh S/o Mohan Singh Yadav was ploughing his agricultural field known as 'Kumhar Wala Khet', the appellants reached there to avenge the confrontation occurred last evening and inflicted several injuries by axe. Primarily the fatal injuries were caused on the head and also incised wounds were visible on the right hand of Veer Singh. The aforesaid incident was witnessed by Kok Singh and the same was narrated to Bhaiyalal, whereafter he reached to the spot, however while the injured Veer Singh was in transit to the hospital, he succumbed to the injuries. Based on the narration of above story, the police registered an FIR bearing Crime No.239/2004 for commission of the offence punishable under Section 302 read with Section 34 of IPC and named the appellants as accused.
(3) Thereafter, SHO Badarwas Rajiv Tripathi (PW-11) reached the Civil Hospital Badarwas and prepared the 'Lash Panchnama' of the deceased Veer Singh, Ex.P-10, and sent the deadbody for post-mortem. Dr. L.S. Uchariya (PW-10) had performed the post-mortem and gave a report Ex. P-15. According to the post-mortem report, he found presence of 2 incised wounds on his head, 1 incised wound on the rear portion of the right shoulder, 3 incised wounds on his right hand, 3 abrasions on his hand, and 1 contusion above the right eye. Whereafter, SHO Rajiv Tripathi (PW-11) recorded 3 Criminal Appeal No.266/2005 the statements of various witnesses and appellants were arrested. The weapon used in commission of crime (Axe) was recovered on the memorandum executed by both the accused Mahipal Singh and Chandrapal Singh. Head Constable Raghuvir Singh seized clothes of the deceased from the hospital by recovery memo Ex.P-14. All the seized articles were sent for forensic science examination vide letter, Ex.P-28. After due investigation, the charge sheet was filed before the Judicial Magistrate First Class, Kolaras District Shivpuri, who committed the case to the Court of Session and ultimately it was transferred to Second Additional Sessions Judge Shivpuri for trial.
(4) The appellants abjured their guilt. They did not take any specific plea but they have stated that they are innocent and are falsely implicated in the matter due to dispute over land and cattle but no defence evidence was adduced by them.
(5) The trial Court after considering the evidence adduced by the parties convicted and sentenced the appellants as mentioned above.
(6) We have heard the learned counsel for the parties and perused the record.
(7) Learned counsel for the appellants submitted that the trial Court ignored the fact that there is no evidence available against the present appellants. The only eye- witness Kok Singh (PW-2) presented by the prosecution has deposed contradictory statement, which is evident from the fact that, in one breath he states that, he informed about the incident to Bhaiyalal but in the next breath he retracts from his narration and states that, no information was given by him to Bhaiyalal. Similarly, he 4 Criminal Appeal No.266/2005 has made contradictory statement with respect to the place of incident because firstly he has stated that the incident occurred on the field of complainant Bhaiyalal (PW-1) whereas in the later part of his statement he narrates that the incident occurred on his field. By drawing inference from these contradictions, learned counsel for the appellants submits that the testimony of Kok Singh (PW-2) has been discredited and the same cannot be relied upon for pronouncing the impugned judgment.
(8) Consequently, learned counsel for the appellants submits that if the testimony of Kok Singh (PW-2) is taken out of the equation then the remaining witnesses are hearsay in nature and their statements are not admissible in law. Another relevant contradiction visualised by the learned counsel for the appellants is that Kok Singh (PW-2) has not ascribed any role of appellant No.1-Sangram Singh whereas his name has been dragged by Bhaiyalal (PW-1) and Guddibai (PW-4) which establishes the contention that, the implication of appellants is due to previous enmity. The remaining evidence is without any credibility and deserves to be ignored.
(9) Per Contra, learned counsel for the respondent- State supported the finding of the trial Court and submits that no indulgence can be shown in the impugned judgment.
(10) Before venturing into the rival contentions, it is to be considered as to whether the death of the deceased was homicidal in nature or not and whether the injuries caused are sufficient in ordinary course of nature to cause death. In this regard, the evidence given by Dr. 5 Criminal Appeal No.266/2005 L.S.Uchariya (PW-10) is pertinent, who performed the post-mortem on the body of the deceased Veer Singh and gave a report Ex.P-15. He found following injuries on the body of the deceased :-
(1) Incised wound transversely 6cm x 2cm x3cm. 9 cm. above the right wrist, on lower ¼ of right forearm. Posterior. Part of cut muscle blood vessel and both bones are visible;
(2) Incised wound 6cm x .5 cm x .5cm on middle of right forearm sagittally posteriorly;
(3) Incised wound 4cm x 3/4cm x 3/4cm on lower ¼ of right arm. Posteriorly; (4) Incised wound 4cm x 3/4cm x 3/4cm right shoulder posteriorly;
(5) Incised wound 10cm x 10cm x 6cm extending from right side fronto temporal part of skull upto upper part of right ear.
Part of scalp muscle blood vessel x skull bone one cut are visible with blood cloot present;
(6) Incised wound in shape 13cm x 1cm x 2.5 cm with cut of part of scalp muscle with skull bone with brain membrance, on middle of occipital region of head, blood clot, brain matter visible;
(7) Incised wound 11cm x 3cm x 2.5 cm.
extending from left parietal to temporal region transversely upto just above the left ear part of cut muscle blood vessel with bone skull visible with clotted blood; (8) Abrasion 5x3 cm with contusion around it 9x4 cm on right elbow, antero laterally; (9) Abrasion 2x1 cm right hand posteriorly; (10) Abrasion 2 in number 2 to 3cm x 1cm above the left shoulder;
(11) Contusion 3x1 cm upper eye lid of right side eye.
From perusal of above, it can safely be deduced that blood vessels and muscles of radius & ulna bone of the right hand of the deceased were cut through and through, blood was clotted on the right fronto temporal 6 Criminal Appeal No.266/2005 and occipital region, internal muscles and blood vessel were found cut and there were fractures on right fronto temporal and occipital region of the head. According to the opinion of Dr. Uchariya, the injuries were sufficient in ordinary course of nature to cause death. Since incised wounds and fractures were found on the skull of the deceased and naturally such injuries could neither be caused by the deceased himself nor could they be sustained by him in any accident, therefore, the opinion given by Dr. L.S.Uchariya (PW-10) is acceptable that the death of the deceased was homicidal in nature. (11) The Complainant Bhaiyalal (PW-1) deposed in his examination-in-chief that around three months ago, at about 9-10 am, his nephew Veer Singh went for ploughing the field where the appellants surrounded him and assaulted by axe. The aforesaid incident was informed to him by Kok Singh whereafter he reached the spot and found that Veer Singh was lying in the field and he had received injuries on his neck, skull and hand. It is pertinent to point out that the perusal of FIR reflects name of Guddibai as another eye-witness, however, her testimony shall be discussed in later part of the judgment.
(12) Now reverting back to the statement of Bhaiyalal (PW-1) it is apparent that, at the time of incident he was not present at the spot.
(13) Kok Singh (PW-2), who claims to be eye-witness, stated in his examination-in-chief that around 3 months ago, at about 10-11 am he and deceased Veer Singh were ploughing their respective field, when the accused/appellants Mahipal Singh and Pappu reached there, armed with axe and they assaulted Veer Singh.
7 Criminal Appeal No.266/2005 After witnessing this incident, Kok Singh (PW-2) ran towards his house, however, on the way, Bhaiyalal (PW-
1) met him to whom he narrated the entire incident. This witness has been declared hostile on the limited point that in his statement under Section 161 of CrPC, he mentioned the name of Sangram Singh which has been omitted in the statement recorded before the Court. Whereafter he was confronted with cross- examination by Assistant Public Prosecutor (APP) in which he stood by his omission regarding absence of Sangram Singh at the place of incident. While it is true that, in his testimony the witness Kok Singh (PW-2) had conceded that he did not narrate the incident to Bhaiyalal but he remained persistent with the statement that appellants No.2 and 3 had inflicted fatal injuries on the deceased.
(14) Rajesh (PW-3) also claimed himself as an eye- witness and deposed that he saw that Veer Singh was ploughing his field when Mahipal Singh came and assaulted Veer Singh by inflicting injury by axe on his head. When Veer Singh tried to escape, the appellant Sangram Singh told Mahipal Singh to catch him, as he was fleeing away, in between Veer Singh reached at the field of Kok Singh (PW-2) where accused persons killed him by causing injuries by axe. Thereafter he went to the house of Veer Singh and informed family members of Veer Singh about the incident but in the cross- examination he admitted that he reached the spot after hearing the alarm of Guddibai, wife of Veer Singh and when he reached, he found that Veer Singh was lying in the injured condition, therefore, it appears that the incident had not taken place in front of Rajesh Singh 8 Criminal Appeal No.266/2005 (PW-3). If Rajesh would have seen the incident then he would have informed such incident to Bhaiyalal (PW-1) and Bhaiyalal would have mentioned in the FIR that he has received the information about the incident from Rajesh.
(15) Guddibai (PW-4) deposed in her examination-in- chief that around three months, at about 9-10 am, her husband Veer Singh was ploughing the field and she was collecting soyabins. Upon hearing the alarm of his husband Veer Singh she saw that, Mahipal Singh and Pappu were assaulting Veer Singh by means of axe. Accused/appellant Sangram Singh was telling to surround Veer Singh so that he may not flee away. Her husband ran towards the field of Kok Singh (PW-2) where more injuries were inflicted due to which he fell down there, after that accused persons ran away. When Veer Singh was being taken to Badarwas, he died on the way.
(16) Mohan Singh (PW-6) stated in his examination-in- chief that three months ago at 9.00 am when he was sitting at the platform in the village, when he saw that the accused Mahipal Singh and Pappu armed with axe were going and Sangram Singh was accompanying them. After a while, Kok Singh (PW-2) and Rajesh Singh (PW-3) informed him that the appellants killed his son by causing injuries by axe, then he reach his field and saw his son Veer Singh in serious condition. Veer Singh was not in a position to talk with anybody. Whey they were taking him to Badarwas, he succumbed to the injuries on the way. From the statement of Mohan Singh (PW-6), it appears that he has not seen the incident and he reached on the spot after receiving information 9 Criminal Appeal No.266/2005 about the incident.
(17) From the perusal of aforestated, following factual situation emerges that, the incident took place at 9-10 am on 20.9.2004, whereafter the FIR was lodged at about 1.30 pm at police Station Badarwas, which is situated 10 Kms. away from the place of incident; in the FIR the names of Kok Singh and Guddibai were mentioned that they had seen the incident. Although the statement of Guddibai under Section 161 of CrPC was recorded 9 days after the incident, but such delay has been explained by Guddibai that, after the death of her husband she was in a state of shock and was not in position to narrate the story to the police. Looking to her explanation, it cannot be said that Guddibai is a planted witness to strengthen the prosecution story. (18) SHO Rajiv Tripathi (PW-11) stated in his examination-in-chief that on the information given by the accused Mahipal Singh and Pappu @ Chandrapal Singh, axes were recovered from them vide seizure memos Ex. P-8 and Ex. P-9, respectively, and they were sent to the Regional Forensic Science Laboratory for chemical examination. From perusal of the record, it appears that chemical analysis report was received from the Regional Forensic Science Laboratory, Gwalior, which is admissible under Section 293 of CrPC. This report indicates that the bloodstains found on axe recovered from accused Mahipal Singh and on the soil collected from the place of incident contains blood group 'B', which matches with the blood group of the deceased. This report corroborates the statements of the prosecution witnesses that the accused Mahipal Singh caused injury to deceased Veer Singh by 10 Criminal Appeal No.266/2005 assaulting through axe.
(19) None of the prosecution witnesses has stated in their statement that accused Sangram Singh has assaulted the deceased Veer Singh. Although Rajesh Singh (PW-3) and Guddibai (PW-4) tried to involve Sangram Singh in the present incident by stating that at the time of incident he was saying - 'catch Veer Singh otherwise he will flee away', but the presence of Rajesh Singh (PW-3) was not found proved on the spot at the time of incident and Guddibai (PW-4) has not stated this fact in her statement recorded by the Investigating Officer under Section 161 of CrPC. Therefore, no credibility can be attached to the statement of Rajesh Singh (PW-3) and Guddibai (PW-4) regarding involvement of appellant Sangram Singh in the present incident. Apart from it, no weapon was recovered from the appellant Sangram Singh. Under these circumstances, the trial Court has committed an error in holding appellant Sangram Singh guilty of the offence punishable under Section 302 of IPC. (20) The appreciation of evidence in the context of contradictions canvassed by the learned counsel for the appellants which finds mention in paras 7 and 8 of this judgment, provides no leeway for this Court to give the same any stamp of approval because, the contradictions which are referred by the learned counsel for the appellants are not sufficient to disbelieve the prosecution story as the withdrawal by Kok Singh (PW-
2) from the statement about narration of incident to Bhaiyalal (PW-1) will not discredit the fact that Kok Singh (PW-2) still stood by his narration about the infliction of injuries by the appellant No.2-Mahipal 11 Criminal Appeal No.266/2005 Singh and appellant No.3-Pappu @ Chandrapal Singh, which finds corroboration from medical and forensic evidence. Similarly, another contradiction highlighted by learned counsel for the appellants about the place of incident is not material in nature because the statement cannot be appreciated in isolation and communitively. Reading the statement of Kok Singh (PW-2) would give a clear picture about the happening of incident, i.e., the appellants No.2 and 3 confronted with the deceased on his field and partly assaulted him whereafter, the deceased attempted to run to safe his life and reached to the adjoining field which belongs to Kok Singh where more injuries were inflicted. The spot map, Ex.P-12, drawn by Patwari, reflects the place of incident to be the field of Shiroman Singh, who is the father of Kok Singh.
(21) Learned counsel for the appellants has placed reliance on the judgment passed by the Hon'ble Supreme Court in the case of M.B.Suresh vs. State of Karnataka, (2014) 4 SCC 31, and submitted that as regards the cause of death, Dr. L.S.Uchariya (PW-10) has opined that it was because of shock but the possibility that the deceased died due to mishandling of the deceased by the person carrying him to the hospital cannot be ruled out. Under these circumstances, he prayed that the act of the appellants No.2 and 3 falls within the purview of Section 304 (Part-I) of IPC. We are not impressed with the submission advanced by the learned counsel for the appellants, for which another judgment of Hon'ble Supreme Court deserves consideration which was pronounced in the case of State of Rajasthan vs. Arjun Singh and others 12 Criminal Appeal No.266/2005 (2011) 9 SCC 115, in which following observation has been made:-
"31. ...... Considering the medical evidence that Himmat Raj Singh sustained 7 gunshot injuries which were sufficient to cause death in the ordinary course, we are satisfied that the death of Himmat Raj Singh undoubtedly falls within the ambit of Section 302 IPC."
Apart from it, we cannot ignore that the case of the prosecution itself is that while after the deceased having sustained the injuries was being taken to the hospital for treatment, he died on the way and Dr. L.S.Uchariya (PW-10) has also stated that the deceased suffered shock on account of the injuries sustained by him and he has also clearly mentioned that, the injuries found on the person of the deceased were fatal and dangerous to life. Dr. Uchariya (PW-10) further stated that the deceased suffered fractures on his fronto parietal region and radius and ulna bone. The deceased received 11 injuries and out of them, 7 injuries were incised wounds and 2 injuries were found on the vital part of the body, which indicates that repeated blows were inflicted on the vital organ of the deceased. Under these circumstances, the act of the appellants Mahipal Singh and Pappu @ Chandrapal Singh would fall within the purview of Section 302 of IPC, not under Section 304 (Part-I) of IPC.
(22) On the basis of aforesaid discussion, the appeal filed by the appellant No.1-Sangram Singh is hereby allowed. His conviction and sentence for the offence punishable under Section 302 read with Section 34 of IPC is hereby set aside and he is acquitted from the said charge. He would be entitled to get the fine amount 13 Criminal Appeal No.266/2005 back, if he has deposited the same before the trial Court. However, the appeal filed by the appellants No.2- Mahipal Singh and No.3-Pappu @ Chandrapal Singh is hereby dismissed and their conviction and sentence under Section 302 of IPC is maintained. (23) The appellant No.1-Sangram Singh is on bail. His presence is no more required before this Court and, therefore, it is directed that his bail bonds shall stand discharged.
(24) A copy of the judgment be sent to the court below along with its record for information.
(N.K. Gupta) (S.K.Awasthi)
Judge Judge
(yog)