Madhya Pradesh High Court
Vrijlal Ghosi vs The State Of Madhya Pradesh on 28 February, 2012
Author: N.K.Gupta
Bench: N.K.Gupta
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABALPUR, MP.
DIVISION BENCH: Hon'ble Mr. Justice Rakesh Saksena &
Hon'ble Mr. Justice N.K.Gupta, JJ.
CRIMINAL APPEAL NO.2310 OF 2005
Vrijlal Ghosi & another.
-Vs-
State of Madhya Pradesh.
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Shri V.K.Shukla, Advocate for the appellants.
Shri Amit Pandey, Panel Lawyer for the respondent-State.
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JUDGMENT
(Delivered on the 28th day of February, 2012) PER: N.K.Gupta,J.
The present appellants have preferred this criminal appeal being aggrieved by the judgment dated 5/10/2005 passed by the Second Additional Sessions Judge, Tikamgarh in ST No.26/2000, whereby the appellants are convicted for commission of offence punishable under Section 302 of Indian Penal Code and sentenced for life imprisonment with fine of Rs.500/- each, in default of payment of fine, an additional RI for 30 days.
2. The prosecution case, in short, is that on 19/9/1999 at about 10:00 AM Laxman was with his grazing cattle in the jungle, which was situated behind Jagdamba temple. When Upendra Singh (PW-12) and Durg Singh (PW-4) went to the spot to provide tiffin to the deceased Laxman, they heard the sound of a fire, which was done by accused Kalyan Singh by a country made pistol. Thereafter 2 Cr.A.No.2310/2005 accused Mansingh, Dheeraj, Ranjeet, Prabhu, Majulla, Vrijlal, Achchhan, Rajaram and Pooran assaulted the deceased Laxman by lohangi, ballam, farsa, sticks, stones and axes respectively. Appellant Achchhan had an axe whereas appellant Vrijlal had assaulted the deceased Laxman by stone. On shouting of witness Upendra, so many people came to the spot and thereafter the assailants ran away. The deceased was taken to the hospital. Ramnath Singh, father of witness Upendra had lodged an FIR Ex.P-19 at Police Station Jatara District Tikamgarh. The deceased was referred to the Community Health Centre, Jatara for his medical examination.
3. Dr. H.N. Nayak (PW-5) examined the deceased and prepared the MLC report Ex.P-10. He found one penetrated wound on the centre of forehead and six incised wounds on the deceased. Out of those incised wounds, three were situated on the right parietal region and right occipital region and remaining three incised wounds were adjacent to each other on the left cheek. He also found six lacerated wounds on the deceased at the right parietal region, right face, back of skull, just above the left eyelid and the left forehead respectively. Swelling was found on both the eyelids and victim could not open his eyes. The patient was referred for X-ray and other examinations to the District Hospital, Tikamgarh. Ultimately the deceased died at District Hospital, Tikamgarh. Dr. S.K.Khare (PW-9) had performed the postmortem on the body of the deceased Laxman and found 13 wounds on his body. Wounds were found on head, face, back, right paw, right thigh and so many other parts of the body. Both the parietal bones were found broken. The deceased died due to head injuries caused on his head. All other internal organs were found 3 Cr.A.No.2310/2005 healthy but congested. The clothings of the deceased were sealed and sent for chemical examination to FSL, Sagar. Vinayak Shukla (PW-11) examined various witnesses under Section 161 of Cr.P.C. He seized one axe from accused Rajaram. On his intimation various weapons were seized from various accused persons. Nothing has been seized from the accused Vrijlal, whereas one axe was seized from accused Achchhan vide seizure memo Ex.P-6. After due investigation, the challan was filed before the concerned Magistrate. The case was committed to the Sessions Court and then transferred to Second Additional Sessions Judge, Tikamgarh.
4. The appellants-accused abjured their guilt before the trial Court. No specific defence was taken by them, however it was stated that they were not involved in the incident and they were falsely implicated in the matter. No defence evidence was adduced by the appellants.
5. In the trial nine accused persons were implicated but the learned Additional Sessions Judge vide judgment dated 5.10.2005 acquitted seven accused persons but convicted the present appellants-accused for commission of offence punishable under Section 302 of IPC and sentenced as mentioned above.
6. Heard the learned counsel for the parties at length.
7. Learned counsel for the appellants-accused have submitted that the complainant Ramnath Singh is a harden criminal, who has falsely implicated so many accused persons by lodging the FIR Ex.P-19 and thereafter no 4 Cr.A.No.2310/2005 witnesses have stated against the seven accused persons and ultimately they were acquitted by the trial Court. Intentionally the witnesses have stated against the present appellants because one of the appellants was father of main accused Puran and another is brother of accused Puran. However, looking to the overt-acts of various witnesses from very beginning upto the examination in the Court, they should be disbelieved. There was no eye-witness at all. No circumstantial evidence is conclusive against the present appellants. They were falsely implicated in the matter. They are in custody since the year 2005 without any substantial reason. Therefore, it is prayed that the present appellants may be acquitted.
8. On the other hand, learned counsel for the State has supported the impugned judgment. He submits that witness Upendra is a trustworthy witness, who has clearly stated that except the accused Puran, present appellants were also involved in the alleged crime, therefore due to his fairness the trial Court has acquitted seven accused persons. Under such circumstances, the evidence of witness Upendra is acceptable and role of the present appellants- accused is very well established.
9. Looking to the injuries caused to the deceased Laxman as stated by the Dr. H.N.Nayak (PW-5), the death of deceased Laxman appears to be homicidal. Learned counsel for the appellants-accused did not challenge this fact, and therefore no fresh discussion relating to this fact is required.
10. As far as the participation of the present appellants-accused is concerned, there are four eye-
5 Cr.A.No.2310/2005witnesses examined by the prosecution. Out of them Ramsingh (PW-1), Mahesh Prasad (PW-6) were the Officers of the Forest Department and they saw absconding accused Puran holding the deceased Laxman who had threatened these two witnesses to leave and thereafter they went away. However, they heard the sound of fire and they were informed that Laxman was killed. 100 men and 50 women from Chandrapura locality had come at the spot after the death of the deceased Laxman. However, these two witnesses are said to be the eye-witnesses in the case, but fact remains that no incident took place before them. At the most they could prove the fact of last seen of accused Puran with the deceased. Ramsingh (PW-1) and Mahesh Prasad (PW-6) did not say about the presence of the present appellants at that time, and therefore these two witnesses could not connect the present appellants with the alleged crime.
11. Durg Singh (PW-4) and Upendra (PW-12) were examined as eye-witnesses. They claimed that they went to the spot to provide tiffin to the deceased Laxman. They also concentrated the entire incident towards absconding accused Puran. They have stated before the trial Court that various accused persons participated in the crime. Appellant Vrijlal provoked the accused Puran to kill the deceased Laxman, whereas both the appellants-accused assaulted the deceased Laxman on his head. But in the cross examination, substantial contradictions came out in their statements. Durg Singh has admitted that he did not tell the name of seven accused persons in his case diary statement Ex.P-9. It appears that appellant Vrijlal is father of main accused Puran, and therefore he was implicated, whereas there is no specific allegation against appellant 6 Cr.A.No.2310/2005 Achchhan that he assaulted the deceased by any weapon. Upendra (PW-12) has stated that he went to the spot and he waited for his uncle Laxman. Thereafter he saw some buffaloes coming, and therefore he went to the spot and found that accused Puran and present appellants-accused were running from the spot. He found that his uncle Laxman was alive but he sustained so many injuries. Thereafter he has admitted that some women were present near a temple, and therefore he told to those women that his uncle was killed by Puran etc. Those women went to Chandrapura locality and some persons came to the spot. Thereafter his father Ramnath Singh and uncle Durg Singh came to the spot. By such statement of Upendra (PW-12), it would be clear that Durg Singh was not at all an eye- witness, because he came to the spot much after the incident.
12. The conduct of Ramnath Singh is very strange in this case, though he claimed to be an eye-witness, who lodged the FIR Ex.P-19. In the FIR, he implicated as many as 11 persons in the case and that information was given without any basis. Investigating Officer Vinayak Shukla (PW-11) has admitted in his cross examination that Ramnath Singh is a known criminal and he is required in so many cases. He was absconding, hence he could not be examined before the trial Court to prove the FIR Ex.P-19, and therefore the FIR was not proved in a proper manner. It is a settled principle of law that document, which is not proved by the prosecution cannot be read against the accused, but since it is a prosecution document, then it can be read in favour of the accused. Under such circumstances, the FIR Ex.P-19 may be read in favour of the accused persons. Hence FIR Ex.P-19 will be read only 7 Cr.A.No.2310/2005 for that limited purpose. In the FIR Ramnath Singh has stated the overt-acts of each accused person, but in the Court neither Upendra nor Durg Singh confirmed the overt- acts of so many accused persons, and therefore they were acquitted. The conduct of Ramnath Singh indicates that all the accused persons were implicated due to enmity. Durg Singh (PW-4) in para 5 and 6 has admitted that there was previous dispute between Durg Singh and his family members and accused Puran and thereafter remaining accused persons took up a quarrel with Durg Singh etc. He has also admitted that accused Puran, appellant Achchhan and Suresh had kidnapped his nephew and a case relating to that offence is pending. Under such circumstances, it is apparent that there was an enmity between both the parties, and therefore there was possibility of false implication of various accused persons.
13. Under such circumstances, the testimony of eye- witnesses should be considered with great caution. As stated above, it would be clear that neither the witness Ramsingh (PW-1) nor Mahesh Prasad (PW-6) was the eye- witness. On the contrary, no gun shot injury was found on the body of the deceased Laxman as per their statements. Similarly, Durg Singh himself admitted in para 7 that when he reached to the spot, so many persons of Chandrapura locality were present where such people reached to the spot only because information of such incident was given to them by various women of that locality and witness Durg Singh reached to the spot much after the incident, and therefore he is not an eye-witness. Ultimately, it is to be seen as to whether Upendra (PW-12) can be relied upon.
8 Cr.A.No.2310/200514. Initially Upendra (PW-12) could not say anything as to whether accused Achchhan or Vrijlal assaulted the deceased by any weapon or not. On the contrary, he had admitted in his examination-in-chief that when he reached the spot, accused persons started running from the spot. In para 8 of his cross examination, he has admitted that he saw accused persons running from 40 ft. away. He did not say that the appellants-accused had any weapon in their hands or not. His statement was contradictory to his previous statement Ex.D-1. In his case diary statement, he had stated that so many persons assaulted the deceased Laxman. Accused Mansingh armed with lohangi, Dheeraj armed with ballam, Ranjeet armed with farsa, Prabhu armed with stick. Accused Achchhan and Rajaram armed with axes, whereas accused Mujulla and Vrijlal had stones in their hands. They were assaulting his uncle. However, in his statement before the Court he stated that when he reached the spot, all the accused persons ran away except accused Vrijlal and Achchhan. Now before the Court, this witness took a big somersault. He admitted that he saw the accused Achchhan, Vrijlal and Puran running from the spot from a distance of 40 ft. He could not tell about the weapons kept by the accused persons. He took a change with his previous statement. In his case diary statement, he had stated that he heard a sound of firing, but in the Court he refused about having heard such type of sound. In para 10 he has stated that he met Chowkidar in the midway but thereafter he changed his version that no Chowkidar met him. Looking to the contradictions to the statement of this witness before the trial Court and statement before the police, it appears that he is speaking about the accused persons according to his own wishes and wishes of his father Ramnath Singh, who is a criminal and who was 9 Cr.A.No.2310/2005 absconding, and therefore he could not be examined in the Court.
15. Looking to the entire statements of witness Ramsingh (PW-1) and Mahesh Prasad (PW-6), the accused Puran took the deceased with him. After the incident some women of Chandrapura came to the spot, who called other villagers of Chandrapura and thereafter family members of the deceased came to the spot. These witnesses were not declared hostile, which indicates that prosecution relies upon their testimony. According to the story mentioned by these two witnesses, it appears that the story told by Upendra (PW-12) seems to be fake. There was no ground for Upendra to visit the spot at the time of incident. He has stated that he went to the spot to supply tiffin to his uncle Laxman, but that was not stated in the FIR. If witness Upendra was directed to give tiffin to his uncle, then it was not possible for other two persons namely Durg Singh and Ramnath Singh to reach to the spot with Upendra. In the FIR Ex.P-19, it is mentioned that Ramnath Singh went to the spot with Upendra and Durg Singh and they saw the incident. There is no story in the FIR that Upendra was sent earlier to provide a tiffin to his uncle, and therefore story of providing a tiffin appears to be an after thought, which was created in the statement of Upendra after two days of the incident. The FIR was lodged on 19.9.1999 whereas statement of witness Upendra under Section 161 of Cr.P.C. was taken on 20.9.1999. Under such circumstances, where initial story as per the FIR was that Upendra went to the spot with his father Ramnath Singh and uncle Durg Singh and it is established that Durg Singh reached the spot much after the incident, then it appears that witness Upendra was also not an eye-witness. He reached to the 10 Cr.A.No.2310/2005 spot with his uncle Durg Singh and father Ramnath Singh. Under such circumstances, the statement of witness Upendra cannot be considered as an eye-witness and his testimony cannot be relied upon.
16. On the basis of above discussion, it would be clear that there was no eye-witness in the case and the entire case hinges upon the circumstantial evidence. It is settled principle of criminal law that crime is to be brought to its home, and therefore if any criminal Court comes to the conclusion that ocular evidence is not believable, then the remaining evidence cannot be left unconsidered. It is the duty of the criminal Court to assess the remaining circumstantial evidence so as to ascertain whether chain of circumstantial evidence is complete and accused may or may not be held guilty on the basis of such evidence.
17. The first circumstance is clearly settled that the death of the deceased was homicidal. There was enmity between the appellants-accused and Ramnath Singh with reference to Durg Singh (PW-4) and therefore presence of motive may be accepted. The second circumstance in the case is motive which was present between the parties. However, the enmity is a double edged weapon. Due to enmity, someone may assault the opposite party, whereas someone may be falsely implicated on the basis of enmity. However, enmity may be taken as a motive in the case of circumstantial evidence, and therefore first circumstance was present between the parties that the appellants- accused had some motive to kill the deceased Laxman.
18. Regarding the fact of last seen of the accused persons with the deceased, Ramsingh (PW-1) and Mahesh 11 Cr.A.No.2310/2005 Prasad (PW-6) have stated that they saw the accused Puran with the deceased, but these witnesses could not implicate the appellants so as to prove the fact of last seen. Witness Upendra has stated that when he saw the deceased for the first time, present appellants and Puran were running from the spot. But as discussed above, it would be clear that Upendra was not an eye-witness at all, and therefore his statement relating to the fact of last seen cannot be believed, and therefore it is not established that the appellants-accused were found with the deceased soon before the incident.
19. The fourth circumstance which was partially established by the police that some weapons were seized from the present appellants. However, the Investigating Officer Vinayak Shukla (PW-11) could not show any seizure against the appellant Vrijlal, and therefore seizure of any weapon was not proved against the appellant Vrijlal. Head Constable Ram Prasad (PW-8) has stated in his statement that by information given by appellant Achchhan, one axe was seized. Witness Ram Prasad proved the memo Ex.P-15 as well as seizure memo Ex.P-16. However, the independent witnesses relating to the seizure were not examined. The weapons were not sent for forensic science examination, therefore no FSL report was filed during the trial. Head Constable Ram Prasad (PW-8) has admitted that various agriculturists keep such type of axe with them for agricultural purposes, therefore by seizure of axe from the appellant Achchhan no circumstance is created against the appellant Achchhan.
20. For consideration of circumstantial evidence, the judgment passed by the Hon'ble Apex Court in the case of 12 Cr.A.No.2310/2005 "State of Goa Vs. Pandurang Mohite", [(2010) 4 SCC (Cri) 104] may be referred, in which the Hon'ble Apex Court quoted the previous judgments of the Hon'ble Apex Court. The Hon'ble Apex Court in the case of "Hanumant Govind Nargundkar Vs. State of Madhya Pradesh" (AIR 1952 SC
343) has held as under:-
"10..........It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
Similarly, quotations from the judgment passed in the case of "Sharad Birdhichand Sarda Vs. State of Maharashtra"
(AIR 1984 SC 1622) was cited, which is as under:-
"The conditions precedent for conviction on the basis of circumstantial evidence should as under:-
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established;
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not 13 Cr.A.No.2310/2005 be explainable on any other hypothesis except that the accused is guilty;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
21. In the light of the judgments of the Hon'ble Apex Court, if entire bunch of circumstances of the present case is looked into, then it would be clear that there is no circumstance of last seen against the present appellants. No blood stained weapon or cloths were seized from any of the appellants. They were not seen with the deceased before or after the incident. Only motive is well established against the present appellants. In such circumstances, it is apparent that chain of circumstantial evidence is not complete. No final conclusion can be drawn that the deceased was killed or assaulted by the present appellants- accused.
22. On the basis of the aforesaid discussion, it is apparent that neither there is any trustworthy eye-witness nor the chain of circumstantial evidence is complete. Under such circumstances, it cannot be held that the present appellants-accused were involved in killing the deceased Laxman. There is no iota of evidence that they assaulted the deceased Laxman by any weapon. Therefore, the present appellants could not be convicted for commission of offence punishable under Section 302 of IPC or for any inferior 14 Cr.A.No.2310/2005 offence of the same nature either directly or with the help of Section 34 of IPC. The learned Additional Sessions Judge has committed an error in convicting the present appellants in the case. There was no clear basis for their conviction. The learned Additional Sessions Judge has wrongly believed the testimony of witness Upendra. Under such circumstances, where the present appellants cannot be convicted for commission of offence punishable under Section 302 of IPC or any lesser offence of the same nature, conviction and sentence directed by the trial Court cannot be sustained. Therefore, the present criminal appeal filed by the appellants-accused deserves to be allowed.
23. Consequently, the present criminal appeal filed by the appellants-accused is hereby allowed. The conviction and sentence directed by the trial Court for commission of offence punishable under Section 302 of IPC are hereby quashed. The present appellants are acquitted from all the charges appended by the trial Court including the charge of offence under Section 302 of IPC.
24. The appellants are in jail. They be released forthwith, if not required in any other case. Office is directed to issue release warrant in this regard as early as possible.
(Rakesh Saksena) (N.K.Gupta)
Judge Judge
28/02/2012 28/02/2012
Ansari.