Madhya Pradesh High Court
Ramadhar @ Pappan Khamparia vs The State Of Madhya Pradesh on 11 October, 2010
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABAPLUR
Single Bench: Hon'ble Mr. Justice N.K.Gupta,J.
CRIMINAL APPEAL NO.923 OF 2007
Ramadhar @ Pappan Khamparia.
Vs.
State of Madhya Pradesh.
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Shri Ranjan Banerjee, Advocate for the appellant.
Shri P.C.Jain, Panel Lawyer for the respondent/ State.
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JUDGMENT
(Delivered on the 11th day of October, 2010) This criminal appeal has been filed by the appellant being aggrieved by the impugned judgment, finding and sentence dated 13/3/2007 passed by the Special Judge [SC/ST (Prevention of Atrocities) Act], Chhattarpur in Special Case No.66/2005, whereby the appellant has been convicted for commission of offence under Section 307 of IPC and sentenced to rigorous imprisonment for seven years with fine of Rs.1000/-, in default of payment of fine amount, an additional RI for one year.
2. The appellant-accused is in custody in this matter since 20/3/2005.
3. Prosecution case, in short, is that on 16/11/2004, complainant Babulal (PW-1) was coming back from the house of one Raghuvir Singh Tomar at about 8:30 PM in the 2 Criminal Appeal No.923/2007 night to his house situated in Village Deora. When he was passing through a street near the house of Mathar Mehtar, the appellant-accused fired a gun shot from his back causing him injuries. On shouting witness Kunjilal Sen (DW-1) rushed towards the place of incident, and saw the appellant-accused running from the spot. Similarly, one Raghuvir Singh Tomar also came at the spot after hearing the sound of the gun shot. They took the complainant Babulal to his house. A man was sent to Outpost Kudi of Police Station Kishangarh District Chhattarpur to inform the incident. One Head Constable wrote the Dehati Nalishi Ex.P-1 as narrated by the complainant Babulal. The complainant Babulal was taken to the District Hospital Chhattarpur for his medical examination and treatment, where Dr. R.P. Gupta (PW-4) examined him and found some wounds of gun shot injury on the back of complainant, but he did not find any blackening or tattooing on those wounds. According to his opinion, those wounds were caused due to some firearm within 12 hours of his examination. He took shirt and baniyan of the complainant and handed over to the concerned Constable after sealing them.
4. On the basis of the Dehati Nalishi, a crime was registered by F.I.R. Ex.P-6. One handmade gun of .315 bore was recovered from the appellant-accused and entire seized property was sent to Forensic Science Laboratory. As per 3 Criminal Appeal No.923/2007 the report of the Forensic Science Laboratory Ex.P-10, that gun was in working condition, but it could not be ascertained as to when it was fired for the last time prior to the examination. After due investigation, the police Kishangarh had submitted a charge sheet before the committal Court for the offence punishable under Section 307 of IPC, Sections 25/27 of the Arms Act and Section 3(2)
(v) of SC/ST (Prevention of Atrocities) Act, 1989.
5. The appellant-accused abjured his guilt and took the defence that the complainant had some criminal background, and therefore, he was a target of so many persons. He could not identify the actual culprit, and therefore, after due consultation he had lodged a cooked Dehati Nalishi Ex.P-1 against the appellant-accused. In support of his contention, Kunjilal Sen (DW-1) and Uma Kanghar (DW-2) were examined as a defence witnesses.
6. After considering the evidence adduced by the parties, the learned Special Judge, Chhattarpur acquitted the appellant-accused for commission of offence under Sections 25/27 of the Arms Act and Section 3 (2) (v) of SC/ST (Prevention of Atrocities) Act, 1989, but convicted him for commission of offence under Section 307 of IPC and inflicted the aforesaid sentence.
7. I have heard learned counsel for the parties and perused the record.
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8. Learned counsel for the appellant has made his submission in three folds. Firstly, he argued that the appellant-accused was not the actual culprit and he was falsely implicated by a cooked Dehati Nalishi. Secondly, the complainant sustained only simple injuries, therefore the offence may be constituted under Section 324 of IPC at the most, and hence the appellant-accused could not be convicted for the offence punishable under Section 307 of IPC. Thirdly, the appellant-accused is in custody for more than five years, and therefore, that period of custody is sufficient for the alleged crime against the appellant- accused, hence he be released forthwith.
9. First of all, the injuries sustained by the victim and the intention of the appellant-accused can be assessed.
10. Dr. R.P. Gupta (PW-4) has stated before the trial Court, that the complainant Babulal sustained some injuries, which were caused by the gun shot, though no pellet was found in any of his injury. He has also informed that in those wounds, collar of abrasion was present, whereas no blackening or tattooing was found. He has submitted his report as Ex.P-5. He could not say that what was the distance between the firearm and the victim at the time of alleged fire, but he has given his opinion that fire was shot from the back of the complainant. No any doctor was examined before the trial Court to prove that either those injuries were grievous or fatal. There is no 5 Criminal Appeal No.923/2007 information regarding any fracture of any bone or any rupture on any vital part of the body. Though he could not say regarding the distance between the assailant and the victim, in this context, the judgment of the Hon'ble Apex Court in the case of "Nath Singh Vs. State of UP", [1980 SCC (Cri) 968] may be perused, in which it is observed that if no charring or blackening was found around those gunshot injuries, the guns were fired from a distance of 6 or 8 feet. By such observation by the Hon'ble Apex Court, in the present case it can be observed that the assailant was, more than 8 feet away from the victim at the time of gun shot.
11. By the evidence of complainant Babulal (PW-1), it is clear that he was assaulted by gun shot from his back and the assailant immediately ran away from the spot. He did not even observe as to whether the complainant has survived or not. As it is discussed above, the alleged fire was shot from a distance of more than 8 feet and the complainant sustained simple injuries by that gun shot. Under these circumstances, it is clear that there was no intention of the assailant to kill the victim Babulal, otherwise when at the time of incident, the complainant Babulal was alone in the street, the assailant could fire for more than once, upon the complainant Babulal to make himself sure that complainant Babulal sustained sufficient injuries to cause his death, but as per the evidence of 6 Criminal Appeal No.923/2007 complainant Babulal himself, the conduct of the assailant was not so, and therefore, it could not be said that he had intended to cause the death of victim Babulal. In this context, the judgment of the Hon'ble Apex Court in the case of "Kundan Singh Vs. State of Punjab", [AIR 1982 SC 62], in which it is observed that if the gun shot was fired from a distance where the victims were in the courtyard of their house, then conviction of the appellant under Section 307 of IPC was not justified. It could be converted into conviction of offence punishable under Section 324 of IPC, because the victims received simple injuries. The similar situation is in the present case. Also the Hon'ble Apex Court in the case of "State of Maharashtra Vs. Balram Bama Patil" [AIR 1983 SC 305], in which it is observed that to justify a conviction under Section 307 of IPC, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be reduced from other circumstances, and may even, in some cases, be ascertained without any reference to actual wounds.
12. In the light of the observations given in Balram Bama Patil's case (supra), if the facts of this case are considered, then it would be clear that the assailant found the complainant in a lonely place, but he did not repeat his 7 Criminal Appeal No.923/2007 fire on the complainant, the complainant was hurt only simple injuries. The assailant did not approach near the complainant, but he assaulted him from, more than 8 feet away and thereafter he ran away immediately, though there was nobody at the time of incident to prevent him to make another gun shot. Under these circumstances, in light of the above observations made by the Hon'ble Apex Court, intention of the assailant seems to be only of causing injuries to the complainant. His intention cannot be presumed of causing death of the complainant, and therefore, it can safely be said that offence under Section 307 of IPC is not made out. The overt-act of the assailant at the most may constitute an offence under Section 324 of IPC.
13. For assessing the testimony of the complainant, entire evidence may be considered. Complainant Babulal (PW-1), Lalsingh (PW-2) and Uttam Kanghar (PW-3) were examined to be eye-witnesses. The complainant Babulal (PW-1) has stated that only one gun shot was caused by the appellant-accused from the back and the appellant-accused was duly identified by one Kunjilal Sen. Lal Singh (PW-2), who is son of the complainant Babulal, has claimed himself to be an eye-witness. He has stated that at the time of incident he was in the temple and after hearing the sound of fire, he rushed towards the spot and in the midway he saw the accused, who was running with a pistol. Similarly, 8 Criminal Appeal No.923/2007 Uttam Kanghar (PW-3), who is nephew of complainant Babulal has also claimed himself to be an eye-witness and corroborated the testimony of complainant Babulal.
14. Learned counsel for the State has also submitted that the evidence of these three witnesses was also confirmed by Dehati Nalishi Ex.P-1, which was immediately lodged by the complainant to the concerned Head Constable, and therefore, these witnesses are reliable and the act of the appellant-accused is proved.
15. On the other hand, learned counsel for the appellant-accused has submitted that Dehati Nalishi was not at all an FIR in the eyes of the law, and therefore, it cannot be based for corroboration. He has further argued that Dehati Nalishi was simply written to avoid the delay in lodging the FIR. In this connection, the judgment of the Hon'ble Apex Court in the case of "Balaka Singh Vs. State of Punjab" [AIR 1975 SC 1962] is referred, in which it is observed that, the FIR found to have been written, after inquest report was prepared, the FIR lost its authenticity. In the present case Dehati Nalishi was the first document regarding information of the alleged crime. No investigation took place prior to the Dehati Nalishi, and therefore, it will be treated to be an FIR for all purposes. If some Police Officer is not at the Police Station or at the Outpost of that Police Station, then at the time of his tour in the area, he cannot move with the FIR register, and 9 Criminal Appeal No.923/2007 therefore, it is essential for him to take information on a simple paper and then to get it registered the same at Police Station in the FIR register. The authenticity of the Dehati Nalishi can be assessed with, the entire registration of FIR register at Police Station and in such circumstances it can be assessed that whether Dehati Nalishi was written within stipulated time or it was ante time. Dehati Nalishi is an FIR but to maintain its authenticity, it is required to be proved that (i) There should be no manipulation of time; and (ii) That it should not be registered after any enquiry.
16. In the present case, the Dehati Nalishi was written at the house of complainant and it was sent to the Police Station Kishangarh whereas the victim was sent to the District Hospital Chhattarpur. As per the MLC report Ex.P-5, Dr.R.P. Gupta (PW-4) opined that the victim was brought before him at about 12:05 AM on 17/11/2004, whereas the witnesses Lalsingh has admitted in para 4 of his statement that he reached Chhattarpur at about 10 to 10:30 PM, whereas the witness Uttam Kanghar (PW-3) has stated that the police came two hours after the incident and one hours' time was taken in transporting the victim to the District Hospital Chhattarpur. Looking to the evidence given by these witnesses, it appears that the incident took place at 8:30 PM and the police came to the house of the victim at about 10:30 PM in the night, then the victim was taken from the village at about 11:00 PM, who reached the 10 Criminal Appeal No.923/2007 District Hospital Chhattarpur at about 12:05 AM, in the night. In that case, time mentioned by the doctor in his report Ex.P-5 confirms the entire timings assessed. Dehati Nalishi Ex.P-1 shows that it was written at about 9:30 PM in the night, but it is clear that after two hours of the incident, police could reach to the house of the victim, and therefore, it seems that Dehati Nalishi was written with mentioning the time, one hour earlier to its actual time, and therefore, it appears that it is written ante-time. Similarly, this fact can be observed from the register of FIR Ex.P-6, in which it is shown that the FIR was registered at Police Station Kishangarh at about 7:00 AM in the morning. If the Dehati Nalishi was written at about 9:30 PM in the night, then what was the reason of delay in lodging the FIR at Police Station Kishangarh. It clearly shows that actually the Dehati Nalishi was written after a long time, though it was shown that the Dehati Nalishi was written one hour after the incident, therefore, when a doubt is created that Dehati Nalishi was delayed at least by one hour, then the possibility of concoction arises. Under these circumstances, the Dehati Nalishi Ex.P-1 becomes doubtful, and therefore, corroboration cannot be expected from this document.
17. In cross examination of the victim Babulal, it is clear that he is a political person. His wife fought election for a member of Panchayat. He admitted some criminal cases against him by which it would be clear that he could 11 Criminal Appeal No.923/2007 be a target of so many persons, looking to his criminal past. Similarly, he narrated so many things about the accused that he had some criminal past, whereas defence witness Kunjilal Sen (DW-1) has stated that at the time of incident the accused was Up-Sarpanch of the Panchayat of village Deora, therefore political rivalry between the complainant and the appellant-accused cannot be ruled out.
18. In Dehati Nalishi Ex.P-1 it is clear that Kunjilal Sen was the first person who came to the spot, then it was Raghuvir Singh Tomar, who came after him. Kunjilal Sen was not examined by the prosecution, because he turned hostile, and therefore, he was examined as a defence witness. Similarly, Kanhaiya Gautam, who was alleged to have come at the spot, just after the incident as mentioned in the Dehati Nalishi was also not examined before the trial Court. It is very strange that the police has not taken any statement of witness Raghuvir Singh Tomar, who was alleged to be an eye-witness in the case, and therefore, his name was in the witness list before the trial Court. It is very clear by Dehati Nalishi Ex.P-1 that Babulal has not mentioned the name of his son Lalsingh (PW-2) and his nephew Uttam Kanghar (PW-3), who claimed to be an eye- witnesses. If Lalsingh had seen the accused when he was running, then he must have told this fact to his father when he reached his house and this fact must have been informed by the complainant to the police, but no such description 12 Criminal Appeal No.923/2007 was given in Dehati Nalishi Ex.P-1, therefore, it is clear that Lalsingh and Uttam Kanghar are concocted witnesses. Uttam Kanghar did not see the incident at all and being nephew of the complainant, now he is claiming to be an eye- witness. Similarly, in the lack of narration in the FIR regarding the fact that Lalsingh saw the accused just after the incident, the evidence given by Lalsingh cannot be believed. He is simply supporting his father without any basis.
19. Under these circumstances, the entire evidence rests upon the testimony of the complainant Babulal only. Complainant Babulal has stated that the accused was also there in singing of the Ramayan at the house of Raghuvir Singh Tomar, but it is nowhere mentioned in Dehati Nalishi. He has stated that the accused shouted at the time of incident like "Kanghara madar chod ek ek ko marenge", but such type of statement, neither he has given in the case diary statement nor stated in Dehati Nalishi Ex.P-1. As per Ex.P-1, the assailant did not say a single word, therefore, it seems that the complainant exaggerated the fact to implicate the accused-appellant by his voice.
20. Similarly, the complainant in para 2 of his statement has stated that accused picked up something from the earth and he left the spot, whereas it was nowhere mentioned in his case diary statement and in Dehati Nalishi Ex.P-1. In Dehati Nalishi Ex.P-1 he has mentioned that on 13 Criminal Appeal No.923/2007 his shouting witness Kunjilal Sen came to the spot and he saw the accused running from the spot. At present Kunjilal Sen has appeared as a defence witness and he has not corroborated the testimony of the complainant. Nothing is brought in the cross examination of Kunjilal Sen by which it can be said that he was related to the appellant-accused or he had some rivalry with the complainant Babulal. Therefore, it seems that since Kunjilal Sen was not supporting the concocted story told by the complainant Babulal, hence he was not taken as a prosecution witness. However, the evidence of Kunjilal Sen strikes the testimony of the complainant Babulal.
21. Investigating Officer Rajesh Raghuvanshi (PW-7) has prepared the spot map Ex.P-8 at the spot, in which he has not shown any source of light in the street. He has not shown any pole of electricity or any affixing of lamps on the poles, therefore by this spot map, it is evident that there was no street light in the street in question, where the incident took place. In the spot map Ex.P-8, the house of Raghuvir Singh Tomar is shown to be 20 steps away from the spot, but front of that house is not towards that street. Similarly, the house of Mathar Mehtar is shown to be quite away from the spot and witness Lalsingh in para 4 of his statement has admitted that the spot was on the back side of house of Mathar Mehtar, and therefore, there was no possibility of any light from the house of Mathar Mehtar to 14 Criminal Appeal No.923/2007 the spot . Also in Ex.P-8, door of Mathar Mehtar is not shown towards that street, and therefore, it was not possible that any light may come to the spot from the house of Mathar Mehtar. The incident took place at about 8:30 PM in the night and there was no arrangement of light shown in the investigation, then it was not possible for the complainant or anyone to see the actual assailant. It is not a case in which any witness has stated that he saw the incident in the moonlight, therefore, the testimony of the defence witness Kunjilal Sen seems to be probable that the assailant could not be seen by anyone, and therefore, the testimony of the complainant Babulal comes in the clouds of doubt. If delay caused in writing the Dehati Nalishi is considered with such a suspicion create, then it would be clear that after due discussion with the family members and friends, the complainant Babulal thought to lodge the named FIR against the appellant-accused, because he had his main rivalry with the accused at that time, whereas looking to the criminal past and political activity of the complainant, he could be a target of so many persons. Under these circumstances, in absence of any source of light at the spot, it appears that the complainant could not see anyone at the time of incident causing fire on his back, and therefore, he lodged an after thought Dehati Nalishi naming the appellant-accused.
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22. Under these circumstances, the testimony of complainant Babulal cannot be believed beyond reasonable doubt, hence in the absence of corroboration of evidence etc. it cannot be said that the appellant was the actual assailant in the matter. Therefore, the appellant-accused is entitled to get the benefit of doubt in the present case. He cannot be convicted for commission of offence under Section 307 or 324 of IPC or any other inferior offence of the same nature, therefore, the conviction and sentence directed by the Special Judge, Chhattarpur cannot be sustained in the eyes of law.
23. On the basis of aforesaid discussion, I find that the Court below has erred in convicting and sentencing the present appellant, hence the finding of guilt recorded by the Court below is hereby set aside.
24. Consequently, this appeal succeeds and is allowed. Conviction and sentence recorded by the Court below under Section 307 of IPC is hereby set aside. He is acquitted from the charge of Section 307 of IPC. He would be entitled to get the fine amount back from the trial Court, if he has deposited.
25. At present the appellant is in custody, therefore he be released forthwith by issuing a release warrant without any delay.
(N.K.Gupta) Judge 11/10/2010 Ansari.