Madhya Pradesh High Court
Nathhuda & Anr. vs The State Of M.P. on 13 January, 2016
1 Criminal Appeal No. 511 of 2000
HIGH COURT OF JUDICATURE MADHYA PRADESH BENCH AT
GWALIOR
CRIMINAL APPEAL NO. 511 OF 2000
Nathuda and another
-Vs-
State of Madhya Pradesh
For the appellant No. 1: Shri Rishikesh Bohare, Advocate,
appointed from the Panel of High
Court Legal Services Committee.
For the appellant No. 2: Shri Vilas Tikhe, Advocate
For the State: Shri Vijay Sundaram, Panel Lawyer
PRESENT: HON'BLE MR. JUSTICE N.K. GUPTA, J.
JUDGMENT
(13/01/2016) The appellants have preferred the present appeal being aggrieved with the judgment dated 05.07.2000 passed by second Additional Sessions Judge, Guna in S.T. No. 19/2000, whereby each of the appellant has been convicted of offence under Section 308 or 308 read with Section 34 of IPC and sentenced to one year's rigorous imprisonment. The appellant No. 1 has also been convicted of offence under Section 25(1-B)
(a) and Section 27 of the Arms Act and sentenced to one years rigorous imprisonment with fine of Rs.250/- and three years' rigorous imprisonment with fine of Rs.250/- respectively.
2. The prosecution's case, in short, is that Siddhanath Singh (PW-5) Station House Officer of Police Station Dharnavada 2 Criminal Appeal No. 511 of 2000 (District-Guna) went to outpost Jhagar on 08.12.1999. At about 11:00 PM he had received an information that some persons have gathered with weapons to commit some crime, therefore, he went to the spot along with police officials including Head Constable Arvind Sengar (PW-6) and Constable Anil Singh Kushwaha (PW-3). After hearing the talk took place between various culprits, Siddhanath Singh (PW-5) challenged them that they were surrounded by the police, they should not try to escape. On hearing such a challenge, one of the culprit fired from a gun and a bullet passed near the ear of Constable Anil Singh Kushwaha (PW-3), however, nobody was injured. Thereafter, the Police party had captured the appellants and arrested them. One muzzle loading gun along with some ammunition was recovered from the appellant No. 1 Nathuda and a seizure memo Ex. P/4 was prepared. Similarly one Farshi was recovered from the appellant No. 2 Jai Kumar. Siddhanath Singh (PW-5) had recorded Dehati Nalisi Ex. P/7 and went back to the Police Station Dharnavada, where the FIR Ex. P/10 was lodged. The M.L. gun was sent for its examination to Reserve Police Line, Guna. Head Constable Devnath Singh Bhadoriya (PW-2) examined the gun, which was working properly. Again the gun and ammunition were sent to the Forensic Science Laboratory, Sagar and a report Ex. P-9 was received to show that gun was a M.L. gun which was working and some gun powder and caps of that M.L. gun were also found in the bag of ammunition. After due investigation, charge-sheet was filed before the JMFC, Guna, who committed the case to the Court of Sessions and ultimately it was transferred to second Additional Sessions Judge, Guna.
3 Criminal Appeal No. 511 of 2000
3. The appellants abjured their guilt. They took a plea that they were falsely implicated in the matter due to enmity. However, no defence evidence was adduced.
4. The Additional Sessions Judge after considering the prosecution's evidence acquitted the appellants from the charge of offence under Section 307 or 307 read with Section 34 of IPC but convicted and sentenced them as mentioned above.
5. In the present appeal, the appellants were released on bail and execution of their jail sentence was suspended, however, thereafter the appellants No. 1 Nathuda has absconded for last five years. Efforts were done to get the presence of the appellant No. 1 Nathuda but he could not be captured, hence, out of the Panel of High Court Legal Services Committee, Shri Rishikesh Bohare, Advocate, who has a vast experience in dealing with criminal cases, was appointed to argue the matter on behalf of the appellant No. 1 Nathuda and, thereafter, I have heard the learned counsel for the parties at length.
6. In the present case, there are several defects in the prosecution's story, which makes the testimony of the police officials to be disbelievable, whereas, the trial Court has believed the evidence of S.H.O. Siddhnath Singh (PW-5). However, if evidence advanced by the prosecution is examined then it would be decided first that who fired with the gun upon the concerned police party. In this context, Constable Anil Singh Kushwaha (PW-3), SHO Siddhnath Singh (PW-5) and Head Constable Arvind Sengar (PW-6) have accepted that there was no moonlight in that night, whereas the incident 4 Criminal Appeal No. 511 of 2000 took place between 11:00 to 12:00 in the night. Siddhnath Singh (PW-5) did not state specifically but he has accepted in Para 27 that he did not remember as to whether the night was dark or there was a moonlight in the night. However Arvind Sengar (PW-6) has accepted in Para 6 of his statement that it was a dark night. He has also accepted that fire was done from the opposite side and, therefore, in the light of firing, the culprit could not be seen. Under these circumstances, there is no eyewitness to say positively that the appellant No. 1 Nathuda had fired with his gun. The entire case shifts upon the circumstantial evidence.
7. First circumstance in the case is that Anil Singh Kushwaha (PW-3), Siddhanath Singh (PW-5) and Arvind Sengar PW-6) have stated that one culprit fired from the gun and the bullet had passed near the ear of constable Anil Singh (PW-3). The police presumed that fire was done by the appellant Nathuda because a gun was recovered from him soon after the incident, however, if seizure memo Ex. P/4 is perused then the gun recovered from the appellant No. 1 Nathuda was M.L. gun and it is alleged that the appellant No. 1 Nathuda had a bag having 15 caps, 10 pellets and 100 gms of gun powder. By description of the gun, it would be apparent that no bullet could be fired with that gun, if fire would have been done with such a gun then the pellets would have been released from the gun and some pellets would have been received by constable Anil or other police officials, who were within the range of firing but all the three witnesses have categorically accepted that due to firing, a bullet had been passed near the ear of constable Anil Singh Kushwaha (PW-3).
5 Criminal Appeal No. 511 of 2000 Under these circumstances, if the M.L. gun was recovered from the appellant Nathuda then still it cannot be said that he fired with the gun. Possibility cannot be ruled out that fire was done by Ummed Singh who was allegedly present with the appellants at the time of incident and who absconded from the spot. However according to the circumstances as discussed above, neither appellant No. 1 Nathuda nor appellant No. 2 Jai Kumar had fired with gun upon the police party.
8. Since the appellants have been convicted of offence under Section 308 of IPC with help of Section 34 of IPC then before reaching to a conclusion, it is to be examined whether there was a common intention of the appellants with the absconding accused Ummed Singh. According to the evidence given by constable Anil Singh Kushwaha (PW-3), SHO Siddhanath Singh (PW-5) and Head Constable Arvind Sengar (PW-6), the culprits were scattered when Siddhanath Singh (PW-5) challenged them and, thereafter, one fire was done by one of the culprits, whereas the police party was successful in capturing the two culprits at the spot. For assessment of common intention, conduct of the accused may be considered. When the culprits were not surrounded by the police party, they could not think to make a fire upon the police party and, therefore, their common intention cannot be presumed from very beginning. After hearing the challenge of SHO Siddhanath Singh (PW-5), the culprits, who were talking with each other, had scattered and one of them had fired from a gun. It is not proved that the appellant Nathuda fired from his M.L. gun or the appellant Jai Kumar had tried to assault any police officials with Farshi. According to the police, the appellants could be 6 Criminal Appeal No. 511 of 2000 captured by the police. By total conduct of the appellants as established by the prosecution, it is apparent that the appellants did not try to make any assault on any of the police officials inconsequence of fire done by their companion, hence, common intention of the appellants cannot be presumed with their alleged companion who fired upon the police party, hence, the appellants cannot be convicted either of offence under Section 307 or 308 of IPC either directly or with help of Section 34 of IPC. The Additional Sessions Judge has committed an error in recording the aforesaid conviction against the appellants.
9. Siddhanath Singh (PW-5) has also stated that one M.L. gun along with ammunition was found with the appellant No. 1 Nathuda. He prepared a seizure memo Ex. P/4 with help of witnesses Shriram and Kishan Singh. The witness Shriram was not examined by the prosecution, whereas the witness Kishan Singh (PW-1) has turned hostile. Kishan Singh (PW-1) has stated that he was going on a way and he met a police party on the way. On the direction of SHO Siddhanath Singh (PW-5), he appended his signatures on 4-5 papers. Nothing was done before him. However, if independent witness turns hostile then the testimony of the Investigation Officer cannot be discarded only on the count that the independent witness has turned hostile. Testimony of SHO Siddhanath Singh (PW-5) should be assessed independently.
10. As mentioned above, several lapses have been done by SHO Siddhanath Singh (PW-5) during search, recovery and other proceedings. For example he has stated that when he left outpost Jhagar after getting the information of culprits he took 7 Criminal Appeal No. 511 of 2000 the independent witnesses with him, whereas constable Anil Singh (PW-3) has categorically accepted in Para 4 of his statement that police party did not have any independent witness with them when they left outpost Jhagar. In this connection, a rojnamcha Ex. D-2 was called by the appellants. In rojnamcha No. 68, it is mentioned that Police party left the outpost Jhagar at 11:05 PM and name of the persons participated in the police party were given in the rojnamcha Ex. D-2. However, it is not mentioned in that rojnamcha that after getting information from the informer, Siddhanath Singh (PW-5) called the witnesses and took the witnesses with him. In the light of description recorded in rojnamcha Ex. D-2 and statement given by constable Anil Singh (PW-3), it would be apparent that SHO Siddhanath Singh (PW-5) has stated a falsehood that he took the witnesses with him from outpost Jhagar. It appears that statement of witness Kishan Singh is correct that SHO Siddhanath Singh (PW-5) took signatures of the witnesses on various documents on the way when he was going back to the outpost Jhagar and, therefore, testimony of SHO Siddhanath Singh (PW-5) comes under the clouds of doubt that M.L. gun alongwith ammunition was found with the appellant Nathuda.
11. Also it would be apparent that appellant Nathuda had a criminal background and a reward of Rs.5,000/- was declared by police authorities on his arrest and, therefore, to show that the appellant Nathuda was arrested with a great difficulty and including exchange of fires, SHO Siddhanath Singh (PW-5) could make a case against the appellants in such a manner. It is strange that according to the witnesses, one bullet was fired 8 Criminal Appeal No. 511 of 2000 by the culprits, whereas one police official fired five rounds with pistol and one Head Constable fired one round with a three knot three rifle. If such exchange of fire was done then remains of bullets etc. should have been found on the spot and they would have been collected and seized such remains. Even in spot map Ex. P-2 position of such remains was not shown. Possibility cannot be ruled out that SHO Siddhanath Singh (PW-5) arrested the appellants otherwise without any encounter and, thereafter, he prepared some documents to show that the appellant Nathuda had one M.L. gun along with some ammunition.
12. If statements of witnesses Anil Singh (PW-3), Siddhanath Singh (PW-5) and Arvind Sengar (PW-6) are examined then there is a material contradiction about the fact as to when they left the Police Station Dharnavada or outpost Ruthiyai. According to Anil Singh (PW-3), they left Ruthiyai at about 04:00 to 05:00 PM on 08.12.1999 and at about 06:00 to 06:30 PM, they reached at outpost Jhagar, again at about 10:30 PM they left the outpost Jhagar to capture the culprits. According to Arvind Sengar (PW-6), they left Ruthiyai and reached at Jhagar at about 11:00 AM and they stayed at Jhagar outpost up to 10:00 PM. According to the rojnamcha Ex. D-2, the information was received by Siddhanath Singh (PW-5) on 08.12.1999 at about 11:00 PM and the police force immediately left the outpost Jhagar at about 11:05 PM, thereafter, according to the rojnamcha Ex. P-11, the police force came back to outpost Jhagar at 04:30 AM whereas SHO Siddhanath Singh (PW-5) has stated that he was SHO of Police Station Dharnavada, who was present at outpost Ruthiyai on 9 Criminal Appeal No. 511 of 2000 07.12.1999. He did not give any information that as and when he left the Police Station Dharnavada and went to outpost Ruthiyai. He did not give a specific time when he left outpost Ruthiyai for outpost Jhagar. He could not inform any reason as to why he took much force with him when he left the outpost Ruthiyai and reached to outpost Jhagar. He did not give any particular that what was his object to take such a big force with him to outpost Jhagar and to wait there for more than 12 hours, where the informer had informed at about 11 PM in the night. He did not explain that he had any information about the appellant Nathuda and, therefore, he took his entire force to the outpost Jhagar and, thereafter, an information of specific location of the appellant was found. It is also pertinent to note that according to rojnamcha recorded at outpost Jhagar, the information was received on 08.12.1999 at about 11:00 PM and after 12 O' clock in the night the date of 9 th December, 1999 had begun but the documents which were prepared after 12 O' clock, SHO Siddhanath Singh (PW-5) mentioned the date to be 08.12.1999, even in Dehati Nalisi Ex. P-7 he has mentioned the date of incident to be 08.12.1999, whereas according to the time of incident, it took place at about 12:10 AM in the night and, therefore, it took place on 09.12.1999. Also in formal registration of crime at Police Station Dharnavada (Document Ex. P-10) case is registered at Police Station Dharnavada at about 02:20 AM on 08.12.1999. When the SHO Siddhanath Singh (PW-5) went back, after arrest of the appellants and rojnamcha at outpost Jhagar was recorded at 04:30 AM (Ex. P-11) then as to how a regular FIR could be registered at Police Station Dharnavada at about 02:20 AM in 10 Criminal Appeal No. 511 of 2000 the morning. Such mistake cannot be left with the pretext that it was a clerical error. The clerical error relating to date could be done in seizure memo, arrest memo and Dehati Nalisi but when the FIR was to be registered at Police Station Dharnavada, such mistakes could not be done by Head Constable Moharir who recorded the FIR Ex. P-10 on a format prescribed by the police which is a part of regular registration. Since such dates and time are mentioned in the FIR Ex. P-10 also it appears that SHO Siddhanath Singh (PW-5) cooked a story and, thereafter, documents were prepared according to that story. Under these circumstances, the testimony of SHO Siddhanath Singh (PW-5) cannot be believed. The prosecution could not prove beyond doubt that any M.L. gun or ammunition was recovered from the appellant Nathuda. A doubt is created then benefit of doubt is to be given to the accused. Hence, it could not be proved that the appellant Nathuda had a firearm and ammunition or he used any fire arm. The trial Court has committed an error in convicting the appellant Nathuda for offence under Section 25 or 27 of the Arms Act.
13. On the basis of the aforesaid discussion, the appeal filed by the appellants appears to be acceptable and, consequently, it is hereby accepted. The conviction and the sentence of both the appellants of offence under Section 308 or 308 read with Section 34 of IPC are hereby set aside. Both the appellants are acquitted from the charge of Section 307 or 308 read with Section 34 of IPC. Similarly, the conviction as well as the sentence recorded by the trial Court against the appellant Nathuda for offence under Section 25(1-B)(a) and 27 of the 11 Criminal Appeal No. 511 of 2000 Arms Act are hereby set aside. He is acquitted from the aforesaid charges.
14. The appellant No. 2 is on bail, his presence is no more required before this Court and, therefore, it is directed that his bail bond shall stand discharged. The appellant No. 1 Nathuda has absconded, however, his presence is no more required in the present appeal and, therefore, if perpetual warrant is issued against the appellant No. 1 Nathuda, it may be recalled unserved.
15. Copy of the judgment be sent to the trial Court along with its record for information.
(N.K. Gupta) Judge 13/01/2016 Abhi