Madhya Pradesh High Court
The State Of Mp vs Prahlad Singh & Ors on 19 June, 2012
Author: T.K. Kaushal
Bench: T.K. Kaushal
1
Cr.R. No.435/1993 & Cr.A No. 187/1994
HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA
HON'BLE SHRI JUSTICE T.K. KAUSHAL
CRIMINAL REVISION NO. 435 OF 1993
PETITIONER: Asha Bai Thakur,
COMPLAINANT Widow of Ram Prakash Thakur,
at present resident of Ward No. 2,
Junardeo, District- Chhindwara (M.P.)
Versus
RESPONDENT: 1. Prahlad Singh,
ACCUSED S/o Roopa Baghel, aged 26 years,
R/o Narayanganj, Police Station Bandol,
District- Seoni (M.P.)
2. State of Madhya Pradesh
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For petitioner : None for the petitioner. For Respondent no.1 : Shri Siddharth Datt, Advocate For Respondent no.2 : Shri R.S. Shukla, Panel Lawyer
****************************************************************** CRIMINAL APPEAL NO. 187 OF 1994 APPELLANT: State of Madhya Pradesh through P.S. Bandol, Seoni Versus RESPONDENT: 1. Prahlad Singh, ACCUSED S/o Roopa Baghel, aged 26 years, R/o Narayanganj, P.S. Bandol, District- Seoni (M.P.) ****************************************************************** For appellant : Shri R.S. Shukla, Panel Lawyer. For Respondents : Shri Siddharth Datt, Advocate ****************************************************************** Date of hearing : 19/06/2012 Date of judgment: /07/2012 2 Cr.R. No.435/1993 & Cr.A No. 187/1994 This judgment shall govern the disposal of this State Appeal as well as Revision petition filed by the complainant, wife of the deceased. against the judgment dated 21/05/1993 passed by First Additional Sessions Judge, Seoni in Sessions Trial No. 47 of 1992 acquitting accused persons persons including the respondent/accused Prahlad Singh Baghel of the charge under section 302, IPC.
2. Despite grant of opportunities, none appeared for the petitioner/complainant to argue the revision petition. Learned Panel Lawyer Shri R.S. Shukla has rendered his valuable assistance in the revision petition also, instituted in the year 1993 and argued the State Appeal as well on merits.
3. Facts of the case, in short, are that on 09/02/1992 at 6.30 PM Ram Prakash (deceased), employed as a Driver in Balaghat Depot of MP State Road Transport Corporation, was travelling in Sagar-Seoni Bus bearing No. 1701 of MPSRTC. Jagdish (PW-
1) was the Driver and Daulat Singh (PW-12) was the Conductor in the bus. While Driver of bus (PW-1) tried to overtake a truck, respondent/accused who was coming on a motor bike along with other acquitted co-accused persons, objected to the driver of bus (PW-1) saying how he was driving the bus. Altercation took place between the respondent/accused and passengers of the bus. Somehow dispute was settled for a while and passengers started sitting in the bus. When deceased went to road side for easing himself, respondent/accused stabbed knife in his arm pit and leaving the motorcycle on the spot ran away from the place along with the co-accused persons.
4. Deceased was taken in the bus to the Police Station- Bandol. In view of the serious condition of the deceased, police asked to take the bus to Seoni Hospital. Deceased was brought to the hospital dead. FIR (Ex.P-1) was lodged by Driver (PW-1) at Police Station- Bandol. On receiving information of death of deceased from Seoni Hospital, B.L. Barmaiya, ASI (PW-11) 3 Cr.R. No.435/1993 & Cr.A No. 187/1994 proceeded to the hospital and prepared Ex.P-14 Naksha Panchayatnama of dead body and forwarded the dead body for post mortem. Vide postmortem report (Ex.P-11) Dr. A.K. Tiwari (PW-9) found following injuries on the person of the deceased:-
Stabbed wound 2 1/2cm X 1 1/2 cm X 5 cm on right side of intra axillary area in between right anterior and middle axillary line, also found corresponding puncture wounds of 2X2 cm in right lung and liver respectively.
5. On 09/02/1992 at 11.00 PM vide Ex.P-6 Seizure Memo, motor cycle MUJ 1070 was seized from the spot. Next day i.e. on 10/02/1992 blood stained soil and plain soil was obtained. On 11/02/1992 Vide Ex.P-5 Seizure Memo at the instance of the respondent/accused knife and his clothes, like jursy, shirt and pant was recovered. Aforesaid incriminating articles were sent to Forensic Science Laboratory, Sagar for chemical examination. Vide FSL report Ex.P-16, blood was found on the knife and on shirt, pant of the respondent/accused.
6. After completing the investigation, police Bandol submitted a charge sheet against respondent/accused and two other under section 302 IPC. Trial Court framed charges under section 302 IPC against the accused persons. Respondent/accused abjured guilt. To substantiate case of prosecution, statements of Jagdish Prasad, Driver (PW-1), Suresh Prasad (PW-2), Heera Singh, Head Constable (PW-3), Nagendra Singh, Passenger (PW-4), Puran Singh, Constable (PW-5), Arun Kumar (PW-6), Kamta Prasad (PW-7), K.S. Baghel, Station House Officer (PW-8), Dr. A.K. Tiwari (PW-9), Tulsiram (PW-10), B.L. Barmaiya, ASI (PW-
11), Daulat Singh, Conductor (PW-12), Krapa Shankar (PW-13) and Shayam Sunder Pandey, Sub Inspector (PW-14) were recorded. Defence of the respondent/accused in the Trial Court was that of false implication. To substantiate aforesaid defence, statements of K.K. Shrivastava, Depot Manager, MPSRTC (DW-
4Cr.R. No.435/1993 & Cr.A No. 187/1994
1), Narottam (DW-2) and Kashiram, Constable (DW-3) were recorded. After appreciating the aforesaid evidence, Trial Court found the evidence of prosecution to be doubtful and having extended benefit of doubt, acquitted the accused persons of the aforesaid charge.
7. Challenging the aforesaid judgment of acquittal State has preferred this appeal on the ground that appreciation of evidence is not proper. Evidence of eyewitnesses have been wrongly disbelieved by the Trial Court. In fact prosecution has succeeded to prove the case against the respondent/accused beyond reasonable doubt. Similarly finding of acquittal has been challenged by the petitioner/complainant on the ground that evidence of eyewitnesses and the evidence of Seizure of motor cycle, knife have been wrongly disbelieved by the Trial Court. It is pertinent to note that leave to appeal has been granted by this Court only against the respondent/accused. On the other hand, Learned counsel for the respondent/accused has supported the finding of acquittal.
8. Jagdish Prasad, Driver (PW-1) took the deceased in his bus first to Police Station Bandol and then to Seoni Hospital, but in Para 11 of his statement he has clearly admitted that while he reached Police Station from Hospital after death of the deceased at about 9.30 PM then FIR was written. Heera Singh, Head Constable (PW-3) stated that FIR was written about 7.10 PM at Police Station Bandol by him. There appears material discrepancy regarding time of writing of FIR. In aforesaid back drop statement of Kashiram, Constable (PW-3) assumes importance wherein he stated that copy of the FIR was not sent to the concerned Magistrate because Ex.D-6, Ex.D-7 and Ex.D-8 complete set of three copies of FIR were still lying in the police station. Glaring lapse in compliance of provision of Section 157 of Cr.P.C. is apparent from the face of the record. Possibility of anti-timing of FIR cannot be ruled out in these circumstances.
5Cr.R. No.435/1993 & Cr.A No. 187/1994
9. On perusal of evidence of Jagdish Prasad, Driver (PW-1) and Daulat Singh, Conductor (PW-12), it is not clear that these witnesses knew the respondent/accused earlier. PW-1 lodged FIR Ex.P-1 naming two persons, i.e. respondent/accused and one Rajmohan. In Para 21 of his statement he stated that he did not know the accused Rajmohan. Though in his statement he is stated to have acquittance with the respondent/accused prior to the incident, but in Ex.P-1 FIR he has not mentioned so.
10. Daulat Singh, Conductor (PW-12) in Para 7 of his statement admitted that he did not know the name of the accused persons. Same day he submitted a report Ex.D-5 to Depot Manager (DW-
1) regarding the incident in which there had been no mention of the names of the accused persons. The fact that eyewitnesses knew the respondent/accused prior to the incident is therefore doubtful.
11. From amongst passengers of the bus, Suresh (PW-2) and Nagendra Singh, Passenger (PW-4) also stated that they did not know the miscreants and accordingly they could not identify the accused persons in the court. Suresh (PW-2) further stated that out of two miscreants, who actually assaulted the deceased he could not see. Similarly, Nagendra Singh (PW-4) also failed to see as to who actually assaulted the deceased.
12. Evidence of eyewitness, particularly, evidence of Jagdish Prasad, Driver (PW-1), in our considered opinion has been appreciated by the Trial Court in right perspective. After a detailed scrutiny of evidence on each count, Trial Court has disbelieved the testimony of eyewitnesses. FIR Ex.P-1 was shown to have been recorded within 40 minutes of the incident. In fact, FIR has been drawn up after about more than 3 hours of the incident after collecting the evidence regarding identity of the assailants.
13. Fact of recovery of the motor cycle from the spot has also been properly considered by the Trial Court. Since motor cycle 6 Cr.R. No.435/1993 & Cr.A No. 187/1994 was registered in the name of Arun Kumar (PW-6) a stranger, who sold this motorcycle to one of his relative through respondent/accused, on the basis of seizure of motor cycle, no inference of involvement of the respondent/accused can be drawn. Fact of recovery of knife after two days of the incident from the respondent/accused has also been taken into consideration by the Trial Court in proper manner. In seizure memo Ex.P-5 there is no mention of blood stains on the items and in these facts, in the circumstances of the case, this lapse also cannot be ignored.
14. We are conscious of fact that this Court has its own limitation of re-appreciating the evidence in appeal filed by State against the acquittal of the respondent/accused. Hon'ble the Apex Court in (2008) 10 SCC 450 (Ghurey Lal Vs. State of Uttar Pradesh) has observed as below in Para 75:-
"75. On careful analysis of the entire evidence on record, we are of the view that the reasons given by the High Court for reversing the judgment of acquittal is unsustainable and contrary to settled principles of law. The trial court has the advantage of watching the demeanour of the witnesses who have given evidence, therefore, the appellate court should be slow to interfere with the decisions of the trial court. An acquittal by the trial court should not be interfered with unless it is totally perverse or wholly unsustainable."
Recently Hon'ble the Apex Court in 2012 CRI.L.J. 1991 (Govindaraju @ Govinda Vs. State & another) has observed as below in Para 10:-
"10. The judgment of the High Court, though to some extent, re-appreciates the evidence but has not brought out as to how the trial court's judgment was perverse in law or in appreciation of evidence or whether the trial court's judgment suffered from certain erroneous approach and was based on conjectures and surmises in contradistinction to facts proved by evidence on record. A very vital distinction which the Court has to keep in mind while dealing with such appeals against the order of acquittal is that interference by the Court 7 Cr.R. No.435/1993 & Cr.A No. 187/1994 is justifiable only when a clear distinction is kept between perversity in appreciation of evidence and merely the possibility of another view. It may not be quite appropriate for the High Court to merely record that the judgment of the trial court was perverse without specifically dealing with the facets of perversity relating to the issues of law and/or appreciation of evidence, as otherwise such observations of the High Court may not be sustainable in law."
15. On examining the evidence adduced by the prosecution, we find that the evidence of eyewitnesses is suffering from material discrepancies in respect of identity of the respondent/accused and timing of lodging of FIR Ex.P-1. The Trial Court has rightly appreciated evidence on record. We see no reason to interfere with the findings of acquittal recorded by the trial court after due appreciation of evidence on record in present appeal and revision.
16. Appeal and Revision being devoid of merits deserve to be and are hereby dismissed.
A copy of judgment be kept in the record of criminal appeal No. 187/1994.
(RAKESH SAKSENA) (T.K. KAUSHAL)
Judge Judge
tarun/