Madhya Pradesh High Court
State Of M.P. vs Prahlad Singh And Others on 21 December, 2017
Author: S.K.Awasthi
Bench: Sanjay Yadav, S.K.Awasthi
1 Criminal Appeal No.454/1999
State of Madhya Pradesh Vs. Prahlad Singh & others
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
PRESENT :
HON'BLE SHRI JUSTICE SANJAY YADAV
&
HON'BLE SHRI JUSTICE S.K.AWASTHI
CRIMINAL APPEAL NO. 454 of 1999
State of Madhya Pradesh
-Vs-
Prahlad Singh and others
For the appellant/State : Shri Prakhar Dhengula,
Panel Lawyer.
For respondents : Shri Amit Goswami and Shri
Manish Nayak, Advocates.
JUDGMENT
(21/12/2017) Per S.K.Awasthi, J.
Being aggrieved with the judgment dated 18.3.1999 passed by Additional Sessions Judge, Lahar, District Bhind, in Sessions Trial No. 23/1996, the State has preferred the present appeal against the acquittal declared by the trial Court in favour of the respondents, for offence under Sections 148, 302 of IPC and in the alternative, Section 302 read with Section 149 of Indian Penal Code, 1860 (for brevity, the 'IPC'). (2) According to the prosecution story, on 4.10.1995 2 Criminal Appeal No.454/1999 State of Madhya Pradesh Vs. Prahlad Singh & others at about 6.00 pm, complainant Ramjeevanlal along with his son Balveer was going to drop his brother-in-law Raghuraj Singh at the bus stand, Daboh. When they came near the shop of Suresh Budholiya in the main market, at the same time accused persons Laxman Singh, Prahlad Singh, Rajendra Singh, Santosh Singh, Komal Singh carrying axes with them, accused Chandkhan and Dayal having lathis, accused Lal Singh having iron rod, accused Shivraj Singh carrying hockey and accused Majboot Singh armed with Luhangi, came there. Accused Laxman and Santosh said - "Balveer Singh is going, kill him". On this, accused Laxman Singh inflicted blow by axe on the neck of Balveer Singh; accused Santosh Singh inflicted blow by axe on his head. Balbeer screamed to save him and fell down, then accused Shivraj Singh told to kill him and assaulted with hockey on his hands and legs. Accused Prahlad and Lalsingh told to kill him till he is dead. Accused Prahlad inflicted blow by axe on Balveer. Accused Dayal, Majboot Singh and Chandkhan also assaulted on him by their respective weapons. Balveeer died on the spot. Witnesses Lalta Prasad, Ramesh, Ranveer Singh, Phool Singh, Harishankar, Gotiram Teli and Gajraj Singh Baretha were present on the place of incident, who tried to save Balveer but the accused persons threatened them not to save Balveer else they will kill. Thereafter, the accused persons fled away from the spot.
(3) It was the prosecution story that the incident has taken place on account of the fact that Ajmer, nephew of complainant Ramjeevan Lal had supported Mangal Singh Kaurav in the college election, in which accused Santosh was defeated by Mangal Singh and with a view to 3 Criminal Appeal No.454/1999 State of Madhya Pradesh Vs. Prahlad Singh & others let down Mangal Singh Kaurav and his supports, the accused persons have committed murder of Balveer. After the incident, complainant Ramjeevan Lal reached Daboh Police Station along with Raghuraj Singh and lodged the FIR (Ex.P/8) at Police Station Daboh, District Bhind on the same day at 19.15 hrs., which was registered at Crime No.106/1995. Shri G.D.Sharma, SHO Police Station Daboh prepared Lash Panchnama and Shashi Bhushan Khare, Asstt. Sub-Inspector sent the deadbody to Primary Health Centre, Lahar for post-mortem. Except the accused Shivraj Singh , all the accused-respondents were arrested and after seizure of the weapons and other articles, necessary seizure memos were prepared. Accused Shivraj was declared absconded. After completing the formalities and due investigation, charge-sheet against accused persons was filed before the Additional Chief Judicial Magistrate, Lahar, District Bhind, who committed the case to the Court of Session and ultimately it was transferred to Additional Sessions Judge, Lahar, District Bhind.
(4) The respondents abjured their guilt. They took a specific plea that they have been falsely implicated in the case due to previous enmity. Respondent/accused Chandkhan took the defence that since he has relations with co-accused Rajendra Singh and Prahlad Singh, therefore he has been falsely implicated in the case. In defence, the respondents have examined Hargovind Gupta (DW-1) and Jitendra Shrivastava (DW-2). (5) The trial court after recording the statements of the witnesses and considering the evidence adduced by the parties, acquitted the respondents from the aforestated charges. Being aggrieved by the judgment of 4 Criminal Appeal No.454/1999 State of Madhya Pradesh Vs. Prahlad Singh & others acquittal, the prosecution has filed this appeal under Section 378 of CrPC.
(6) In order to prove its case the prosecution has examined 9 eye witnesses. The trial Court found them unreliable because there evidence was inconsistent and it is unsafe to rely upon their evidence. Except Ramesh Chand Kaurav (PW-9), all witnesses are not belonging to the place where the incident took place and their explanation for their presence near the place of occurrence is not convincing. All the eye witnesses are close relative of the complainant Ramjeevan Lal and due to long enmity of Ramjeevan Lal and his family with the accused the evidence of the eye-witnesses is not reliable. All the witnesses are interested witnesses and their evidence could not be believed in absence of independent corroboration. The FIR was not lodged at the time it is alleged to have been recorded. Copy of the FIR was not sent to the concerning Magistrate at all as required under Section 157(1) of CrPC. In such a case, in absence of any explanation furnished by the prosecution to the effect would definitely cast a shadow on the case of the prosecution. Learned counsel for the appellant/State challenged the finding recorded by the trial Court and submitted that the trial Court has not appreciated the evidence in proper manner.
(7) We have heard learned counsel for the parties and perused the record.
(8) First of all, it is to be considerded whether the death of deceased Balveer was homicidal in nature or not. According to Dr. R.K.Rajoriya (PW-12), who performed the post mortem on the body of the deceased and gave report Ex.P/12, has stated that he has found 14 injuries on the 5 Criminal Appeal No.454/1999 State of Madhya Pradesh Vs. Prahlad Singh & others body of the deceased, out of which there were 10 incised wounds which have been caused by sharp cutting object. All the injuries were antimortem and caused within a period of twelve hours. On opening of the body he found that frontal and occipital bones of the deceased were broken, trachea and esophagus were also injured. The deceased Balveer died due to these injuries and they were sufficient to cause his death. The doctor gave his opinion that the death of the deceased was homicidal in nature. The opinion given by Dr.Rajoriya cannot be discarded for the reason that such injuries could not be caused in any accident or the same cannot be self inflicted and, therefore, the death of the deceased Balveer was neither accidental nor suicidal, hence it was homicidal in nature. (9) Witnesses Lalta Prasad Kaurav (PW-2), Phool Singh (PW-3), Harishankar (PW-4), Gajraj Singh (PW-6), complainant Ramjeevan Lal (PW-8), Ramesh Chhand Kaurav (PW-9) and Raghuraj Singh (PW-11) were examined as eye-witnesses. These witnesses have stated that on 4.10.1995 at about 6 pm, Ramjeevan Lal and his son Balveer were going to drop Raghuraj Singh at the bus. When they reached in front of the shop of Suresh Budholiya, the accused persons Laxman Singh, Lal Singh, Prahlad Singh, Dayal, Rajendra Singh, Shivraj, Majboot Singh, Komal Singh and Chand Khan came there armed with axe, iron rod, sticks and lathis. Accused Laxman Singh and Santosh Singh stated that Balveer Singh is coming, kill him. On this, accused persons surrounded Balveer Singh and Santosh gave axe blow on the head of Balveer Singh; Laxman Singh inflicted blow by axe on his neck. Balveer Singh shouted to save him. Ramjeevanlal and his brother-in-law Raghuraj Singh came for rescue of 6 Criminal Appeal No.454/1999 State of Madhya Pradesh Vs. Prahlad Singh & others Balveer Singh then accused persons threatened to not to save Balveer else they will kill them, therefore, nobody has come forward to save Balveer. After receiving injuries Balveer fell down on the ground then accused Shivraj inflicted blow by hockey on his hand and leg. Other co- accused persons have also assaulted on him by their respective weapons. Thereafter, the accused persons fled away from the spot.
(10) Gotiram (PW-5) deposed that two years ago he was going towards haat market. When he reached near the police station, he saw that Balveer Singh was going towards haat from his house. His Uncle (Phupha) was also with him. When they reached in front of the shop of Suresh Budholiya, accused persons surrounded Balveer. Komal Singh gave axe blow on Balveer Singh, due to which he died on the spot but this fact has neither been mentioned in the FIR nor in his case diary statement that Komal Singh inflicted injury to the deceased by axe. Goriram has also not stated anything about participation of the other accused persons in the incident. However, this witness has not been declared hostile by the prosecution.
(11) Ramjeevanlal (PW-8) claims to be the eye- witnesses of the incident but in his cross-examination he admitted that he is working as Patwari and at the time of incident he was posted at village Gangepura which is 6-7 Kms. away from the place of incident. His headquarter was at Gangepura and he had not taken any permission from RI to leave his headquarter on the date of incident. This witness also admitted that he maintained his diary in which he mentioned that on what date he has done which work. He has stated that on the date of incident he came 7 Criminal Appeal No.454/1999 State of Madhya Pradesh Vs. Prahlad Singh & others to Daboh for submitting encroachment report but he has not submitted any such report or Patwari Diary to substantiate his presence at village Daboh at the time of incident. Reader of the Court of Naib Tahsildar, Daboh, namely Jeetendra Kumar Shrivastava (DW-2) deposed that on 4th and 5th October, 1995 no encroachment case regarding the village Gangepura is registered in his office. In these circumstances, the trial Court has rightly doubted the presence of the witness Ramjeevan Lal at the place of incident.
(12) Ramjeevan Lal (PW-8) stated in para 10 of his cross-examination that the scene of occurrence was for a period of about 8-10 minutes and as per the FIR, Police Station Daboh is situated at the distance of near about 50 paces / 250 mtrs. from the place of incident. If the accused persons threatened the complainant and other witnesses not to save Balveer else they will kill them, in that situation if Ramjeevanlal either himself or through someone could have intimated the police regarding the incident then certainly the police would have reached on the spot but nobody has informed the police about the incident. Even the police could have reached the spot after hearing noise. As per statement of Ramjeevan Lal (PW-8), if seven witnesses were present at the scene of crime who are related to him then certainly they could have tried to save Balveer but nobody has come forward to save him which creates doubt about the presence of the witnesses at the place of incident. The incident has taken place in front of shop of Suresh Budholiya and as per the spot map, 23 shops are situated near the scene of crime but the prosecution has not examined any witness except Ramesh Chand Kaurav (PW-9), who is the relative of the 8 Criminal Appeal No.454/1999 State of Madhya Pradesh Vs. Prahlad Singh & others complainant Ramjeevan Lal, therefore, he cannot be treated as independent witness. It cannot be accepted that except Ramesh Chand Kaurav, none of the shopkeepers has seen the incident. All the eye-witnesses are closely related with the complainant Ramjeevan Lal, therefore, they appear to be the interested witnesses. The presence of Raghuraj was also not found trustworthy because he is the resident of village Alampur and he has claimed that he was returning from village Machhand, therefore he stayed for few hours in his matrimonial house. Ramjeevanlal (PW-8) stated that one blow of axe was given by accused Santosh on the head of deceased Balveer and other blows of axe were inflicted by accused Laxman on the neck of the deceased but as per autopsy report, Ex.P/12, it is evident that total 9 incised wounds were found on various parts of the body of the deceased but the eye-witnesses did not say that the accused Santosh and Laxman also inflicted injuries to Balveer by axe. They have also not stated that other co-accused persons caused any injury to the deceased by sharp cutting object. This circumstance also disclose that the testimony of the witnesses is not trustworthy. Ramjeevanlal (PW-8) admitted in para 36 of his cross- examination that there was no previous enmity between him and the accused persons. In this situation, it cannot be said that the respondents are having any motive to kill Balveer.
(13) The-then SHO G.D.Sharma (PW-13) deposed that on 4.10.1995 he was posted as SHO at Police Station Daboh. On that day, Ramjeevan Lal (PW-8) has lodged FIR Ex.P/8, which was written by him. He admits in his cross- examination that after the murder of Balveer, 200-400 9 Criminal Appeal No.454/1999 State of Madhya Pradesh Vs. Prahlad Singh & others people surrounded the Police Station and crowd was very violent and they were demanding for discovery and arrest of the culprits, then S.P. Bhind came to Daboh and he was immediately transferred from Daboh. This statement of the SHO G.D. Sharma indicates that culprits were not known to the family members of the deceased, therefore, they were demanding for discovery of the culprits. This witness admits that in the Lash Panchnama, Ex.P/9 and P/10, he has not mentioned the crime number. It is also pertinent to note that the columns of Safina Form Ex.P/9 are also blank and it was not signed by the inquiry officer at the specified place. In this situation, the FIR which is alleged to be lodged immediately after the incident reflects shadow of clouds.
(14) SHO G.D.Sharma (PW-13) deposed that he has handed over his charge at 10 to 11 am on the next day of the incident, i.e., on 5.10.1995 and till then he has not sent copy of the FIR to the concerning Magistrate. Chandrapal Singh Tomar (PW-17), who is the successor of G.D.Sharma (PW-13) in para 20 of his cross- examination he admitted that he has not sent copy of the FIR to the concerned Magistrate. He also accepted that in the murder case merg intimation is also lodged and its copy is sent to the Executive Magistrate but he failed to disclose that when the copy of the merg intimation was sent to the concerning Executive Magistrate. In the absence of any explanation by the prosecution for non-compliance of Section 157(1) of CrPC, it would definitely cast shadow on the case of the prosecution.
10 Criminal Appeal No.454/1999 State of Madhya Pradesh Vs. Prahlad Singh & others (15) In case of Meharaj Singh vs. State of UP, (1994) 5 SCC 188, the Hon'ble Supreme Court held as under:-
"12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the
11 Criminal Appeal No.454/1999 State of Madhya Pradesh Vs. Prahlad Singh & others fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been 'ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8."
(16) It is the settled law that the High Court would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality. Merely because two views are possible, the High Court would not disturb the finding of acquittal recorded by the lower appellate Court as held in the decision of State of M.P. Vs. Ramcharan and others, 1985 MPLJ 714.
(17) In the above view of the matter, we are of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges levelled against them. We find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reason to interfere with the same. (18) In the result, the appeal filed by the State is hereby dismissed. The impugned judgment dated 18.3.1999 passed by Additional Sessions Judge, Lahar, District Bhind, in Sessions Trial No. 23/1996 is affirmed. (19) The respondents are on bail. Their presence is 12 Criminal Appeal No.454/1999 State of Madhya Pradesh Vs. Prahlad Singh & others no more required before this Court and, therefore, it is directed that their bail bonds shall stand discharged.
A copy of the order be sent to the trial Court along with its record for information.
(Sanjay Yadav) (S.K.Awasthi)
Judge Judge
(yogesh)
YOGESH VERMA
2017.12.28 17:07:59 +05'30'