Madhya Pradesh High Court
Govind Das vs State Of M.P. on 6 January, 2022
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) HIGH COURT OF MADHYA PRADESH GWALIOR BENCH DIVISION BENCH G.S. AHLUWALIA & DEEPAK KUMAR AGARWAL J.J. Cr.A. No. 227 of 2010 Govind Das and another Vs. State of M.P. Shri Navnidhi Praharya Counsel for the Appellants. Shri A.P.S. Tomar Counsel for the State.
Shri D.S. Rajawat, Counsel for the complainant.
Date of Hearing : 03-01-2022
Date of Judgment : 06/Jan/2022
Approved for Reporting :
Judgment
6th- January -2022
Per G.S. Ahluwalia J.
This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 23-2-2010 passed by Additional Sessions Judge, Pichhore, Distt. Shivpuri in S.T. No.106/2009, by which the appellants have been convicted and sentenced for offence under Section 302/34 of I.P.C. and have been awarded Life Imprisonment with fine of Rs.500/-, in default 3 2 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) months' R.I.
2. It is not out of place to mention here that FIR was lodged against four persons and Balram and Ramjilal were absconding and were arrested on 5-10-2016 and a separate trial was conducted and by judgment and sentence dated 4-4-2019 passed by Additional Sessions Judge, Pichhore, Distt. Shivpuri in S.T. No.106/2016, they too have been convicted for offence under Section 302/34 of IPC and have been awarded Life Imprisonment and a fine of Rs.2000/-, in default 6 months' R.I. Balram and Ramjilal have filed Cr.A. No.5079 of 2019, which has also been heard along with this Criminal Appeal.
3. Since, the co-accused Balram and Ramjilal were tried separately and evidence was also recorded afresh and the evidence in the trial of the appellants cannot be read either in favor or against the co-accused Balram and Ramjilal, therefore, their appeal is being decided by a separate judgment.
4. It is not out of place to mention here that on 16-11-2021, the Counsel for the complainant had made a statement that the appellant No.1-Govind Das has expired, accordingly, the State was directed to submit verification report. On 6-12-2021, the matter was taken up and it was found that the State was unable to verify the factum of death of appellant no.1-Govind Das as the neighbour of appellant No.1-Govind Das had informed that Govind Das had already left the village, but it was informed that Govind Das has expired near Jhansi Railway Station. Accordingly, it was verified by the concerning 3 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) Police Station from Police Station Sipri Bazar, Jhansi as well as GRP, Jhansi, but no information could be gathered. Accordingly, the State was directed to verify from village Simrawari, Ambedkar Nagar, Police Station Babina, Distt. Jhansi as the appellant Ramjilal in connected appeal had stated in his evidence that they had shifted to village Simrawari. Accordingly, fresh verification report was filed which was considered on 22-12-2021 and it was mentioned that no information from village Simrawari, Ambedkar Nagar, Distt. Jhansi could be collected. Accordingly, the Counsel for the appellants was directed to argue on the question as to whether the appeal filed by Appellant No.1-Govind Das can be dismissed as abated or the appeal can be heard on merits on behalf of the Appellant No.1-Govind Das also.
5. During the course of arguments, it was submitted by the Counsel for the appellants that in absence of authentic verification report, the appeal should not be dismissed as abated and the appeal may be heard on merits, by treating the Appellant No.1-Govind Das as alive. Accordingly, the appeal is heard on merits.
6. The prosecution story in short is that on 18-1-2009 at about 11:55, the complainant Krishna Bihari Singh Tomar, came to the Police Station Bhonti, Distt. Shivpuri along with his injured son who was in an unconscious condition and lodged an F.I.R. that about 10- 11 months back, they had purchased land from the nephews of appellant no.1-Govind Das and from the said date, the appellants and 4 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) co-accused persons were having enmity with the complainant and his family. It was further alleged that today at about 11:30 A.M., the complainant was in his field, whereas his son Mohan Singh was coming to the field. The moment he reached near the field, he was challenged by the appellants. The appellant no.1 was carrying Lathi, whereas appellant no.2-Gudda was having Baka. The accused Balram was having Sword, whereas Ramjilal was having Katar. They asked Mohan Singh to leave the field. In reply, Mohan Singh stated that they have purchased the land. On this issue, the appellant no.2-Gudda caused an injury on the nose of Mohan Singh by Baka, whereas Balram gave a sword blow on the wrist of left hand. Ramjilal also gave a Katar blow on the left hand. Appellant no.1-Govind Das assaulted him by Lathi. His son Mohan Singh was raising alarm and thereafter he fell down. When the complainant, Radhe and Indrapal tried to save him, then all the four accused persons ran away.
7. The police immediately sent the injured Mohan Singh to P.H.C., Manpura, from where the injured was referred to Distt. Hospital, Shivpuri. The police took the injured Mohan Singh to Distt. Hospital Shivpuri, where he was declared dead. The police after recording the statements of witnesses, arrested the appellants. After completing the investigation, the police filed charge sheet under Sections 302, 294 and 34 of I.P.C. as well as under Section 25-B of the Arms Act.
8. The Trial Court by order dated 22-5-2009 framed charges 5 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) under Section 302 of I.P.C. or in the alternative under Section 302/34 of I.P.C.
9. The appellants Govind Das and Gudda abjured their guilt and pleaded not guilty.
10. The prosecution in order to prove its case examined Dr. P.K. Dubey (P.W.1), Himanshu Chaturvedi (P.W. 2), Chillu Rajak (P.W.3), Rajendra Singh Thakur (P.W.4), Manharan Singh Thakur (P.W.5), Krishna Bihari Singh Tomar (P.W.6), Radhe Kumhar (P.W.7), Rakesh Khatik (P.W.8), Ramesh Singh Bhadoriya (P.W.9), Laxminarayan Koli (P.W.10), Rajendra Awasthy (P.W.11), Sitaram Sharma (P.W.12), Indrapal Singh (P.W.13), Rakesh Sharma (P.W.14), Bahadur Singh Raghuvanshi (P.W.15), Narendra Bhargava (P.W.16), Narendra Sharma (P.W. 17), and Ramesh Chandra Sharma (P.W.18).
11. The appellants did not examine any witness in their defence.
12. The Trial Court by the impugned judgment and sentence, convicted the appellants for offence under Section 302/34 of I.P.C. and sentenced them to undergo Life Imprisonment and a fine of Rs.500/-, in default 3 months' R.I.
13. Challenging the judgment and sentence passed by the Court below, it is submitted that since, rigor mortis had started, therefore, the death must have taken place much prior to 9 A.M. The F.I.R. is ante-dated and ante-timed document as requisition for conducting post-mortem does not contain the number of FIR. Similarly, Naksha Panchayatnama also does not contain the number of FIR. Similarly, 6 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) the notice issued under Section 175 of Cr.P.C. also does not contain the number of FIR, but on the contrary, it contains Merg Number. It is further submitted that in fact Rakesh Sharma was conducting the investigation, and since, the complainant party staged protest therefore, not only Rakesh Sharma was suspended but new S.H.O. was posted. It is further submitted that Copy of FIR was sent to the Magistrate belatedly on the next day. The statements of the witnesses were recorded belatedly. The prosecution witnesses are not reliable and there are material variance in their evidence.
14. Per contra, the Counsel for the State has supported the conviction of the appellants.
15. Heard the learned Counsel for the parties.
16. Before adverting to the facts of the case, this Court would like to find out as to whether the death of Mohan Singh was homicidal in nature or not?
17. Dr. P.K. Dubey (P.W.1) has conducted Post-mortem of the dead body of Mohan Singh and found following injuries on his body :
(i) Incised wound 13.5 cm x 3 cm x 3 cm obliquely placed extend 4 cm in front of upper side of Left tragus of ear passing through left eyebrow, upper lid, upper part of nose extending to ride side nose with all tissues cut, bone cut orbital margin & hanging down, nasal bones cut with septum. Clotted blood and filled in nasal cavity. Eye ball hanging down.
(ii) Incised wound 11 cm x 3 cm x cut bone coming out placed obliquely on lower part of posterior left forearm and medial side of wrist with muscles, vessels, nerve under the injury lower end of ulna fully cut clotted blood present.
(iii) Incised wound 3 x 1 cm x 1 cm on upper and lateral part of left (illegible) lower, upper part of Patella cut under 7 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) the injury clotted blood present.
(iv) Abrasion 5.5 cm x 1/3 cm over exterior side of neck transversely placed.
(v) Incised wound 10cm x 3.5 cm x brain deep placed transversely of mid of both parietal margin of head. On internal examination Injury no.(v) underneath the injury both parietal bone cut margin clean cut 8 cm long, margins, vessels cut, both parietal lob of brain cut 5.5 cm x 1 cm x 1 cm size clotted blood present underneath the cut bone. All injuries were ante-mortem in nature. Injury nos.1,2,3 and 5 caused by sharp heavy object and injury no.4 caused by hard and blunt object. Injuries are sufficient to cause death.
In my opinion, the cause of death is shock and hemorrhage as a result of multiple injury over body.
Homicidal in nature Duration of death - Within 3 to 12 hours since the time of P.M. The post-mortem report is Ex. P.2.
This witness was cross-examined in short. In cross- examination, this witness stated that he does not know as to whether the police constable had earlier taken the deceased to Primary Health Center or not? He admitted that Police Station Bhonti is within the jurisdiction of Primary Health Centre, Manpura. On the said date, Doctors were available in P.H.C., Manpura, and they had referred the injured to Distt. Hospital Shivpuri and the concerning documents are also available on record. The deceased could not have sustained the injuries due to fall. He denied that injuries no.1 and 5 can be sustained due to fall on a sharp object. The deceased could not have been saved.
18. Thus, from the post-mortem report, Ex. P.2, it is clear that the death of the deceased Mohan Singh was homicidal in nature. 8
Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010)
19. The next question for consideration is that whether the appellants have caused death of Mohan Singh or not?
20. Himanshu Chaturvedi (P.W.2) is a police constable. He has stated that on 18-1-2009, he was posted in Police Station Bhonti. On the said date, he earlier took the injured/deceased to Primary Health Centre, Manpura, from where the Doctor had referred the injured to Distt. Hospital, Shivpuri. Thereafter, he took the injured along with referral letter to District Hospital Shivpuri where the deceased Mohan Singh was declared dead. The cloths of the deceased were handed over to him by District Hospital Shivpuri in sealed condition and he handed over the sealed packet along with specimen of seal to Bahadur Singh Raghuvanshi, who seized the same. The seizure memo is Ex. P.3. He had gone to P.H.C., Manpura along with M.L.C. requisition. The police outpost Shivpuri had handed over merg report no.4/09, P.M. report and referral letter. After the said documents were brought to Police Station Bhonti, then merg no.2/09 was registered under Section 174 of Cr.P.C. The police outpost, Shivpuri Hospital had also given the information given by Distt. Hospital. This witness was cross-examined.
In cross-examination, this witness admitted that no M.L.C. of Mohan Singh was given by Doctor posted in P.H.C., Manpura, but merely an OPD slip was given. He was unable to explain as to where the deceased Mohan Singh expired, but stated that he was declared dead in District Hospital Shivpuri. This witness did not lodge any 9 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) report in Police Outpost, Hospital. There is no mention of referral letter in merg intimation.
21. Chillu Rajak (P.W.3) has partially not supported the prosecution case. He has stated that at about 10-11 A.M., he and Rakesh Khatik were going towards their house. When they reached near the field of Pandit, they saw that Gudda with Baka, Govind with Lathi, Balram with sword and Ramjilal with Katar were going. Mohan Singh was coming from the village. Gudda asked Mohan Singh to return the land. It was replied by Mohan Singh that he has purchased the same and therefore, would not return the same. On this issue, Gudda gave a Baka blow which landed on left side of his forehead. Balram gave a sword blow which landed on his left hand and thereafter, this witness ran away from the spot. Since, the remaining part of the prosecution story was not supported by this witness, therefore, he was declared hostile and was cross-examined by the Public Prosecutor. He denied that Govind had assaulted by Lathi and Ramjilal had assaulted by Katar. He admitted that Indrapal and Radhe had also reached on the spot, and they had also witnessed the incident. He also admitted that Rakesh was also accompanying him. Krishna Bihari had also reached on the spot and had also seen the incident. He stated that he had merely seen the assault made by Gudda and Balram.
This witness was cross examined by defence. He denied that the daughter-in-law of Balram had lodged an F.I.R. under Section 376 10 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) of I.P.C. against Mohan Singh, Ramgopal and Suresh Singh. He denied for want of knowledge that Mohan Singh had purchased the land of the family of appellants. He denied for want of knowledge that Mohan Singh had enmity with the appellants on the question of offence under Section 376 of IPC. He denied that he had not seen Gudda causing injury to Mohan Singh by Baka. He denied that he, Ramesh Bhadauriya and others had surrounded the police station and during that agitation, Mohan Singh had sustained injuries. He again re-iterated that he had seen Gudda and Balram causing injuries by Baka and sword.
22. Rajendra Singh Thakur (P.W. 4) has stated that Govind Das was arrested vide arrest memo, Ex. P.5. Govind Das had given a confessional statement, Ex. P.6. Lathi was seized from Govind Das vide seizure memo Ex. P. 7. The seized Lathi had blood stains. Article A is the same Lathi which was seized. In cross-examination, this witness denied the suggestion of filing of complaint for offence under Section 376 of IPC. He also denied the suggestion that he had surrounded the Police Station. He denied that Govind Das was not arrested from a hill. He denied that Govind Das had not given any confessional statement. He denied the suggestion that Lathi was not stained with blood. This witness was re-examined and in re- examination, this witness admitted that notice for preparation of Lash Panchnama, Ex.P. 8 was given and accordingly, Lash Panchnama, Ex. P.9 was prepared.
11
Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) In further cross-examination, this witness denied that he and 22 other persons had surrounded the police station, and during that agitation, Mohan Singh had sustained injuries.
23. Manharan Singh Thakur (P.W.5) has also proved the arrest of Govind Das vide arrest memo Ex. P.5, making of confessional statement by Govind Das, Ex. P.6, seizure of Lathi, vide seizure memo Ex. P.7.
24. Krishna Bihari Tomar (P.W. 6) has stated that on 18-1-2009 at about 11 to 11:30 A.M., he was going back to his house from his field. Mohan Singh was coming to the field from his house. Near the field of Ashok Agrawal, the deceased was waylaid by Gudda who was armed with Baka, Balram who was armed with sword, Ramjilal who was armed with Katar and Govind Das who was armed with Lathi and asked him that he has purchased the land from their nephews, and he should leave the said land otherwise, he would not be spared. His son replied that he has purchased the said land after payment of money. Thereafter, Gudda assaulted him by Baka which landed on his left eyebrow. Thereafter, Balram assaulted him by sword causing injury on his left hand. Ramjilal also assaulted on his left hand. Govind Das assaulted him by Lathi. Indrapal, Radhe Kumhar, Rakesh Khatik and Chhillu Dhobi also came on the spot. The witnesses intervened in the matter. Thereafter, he went to police station Bhonti along with his injured son and lodged the F.I.R., Ex. P.10. The injured was sent to PHC Manpura by the police from where 12 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) he was referred to Distt. Hospital Shivpuri. His son died on the way to Distt. Hospital, Shivpuri. A notice was given to him by the police, Ex. P.8 and Lash Panchnama Ex. P.9 was prepared. He had purchased the land from the brother of Govind Das in the name of his daughter- in-law, therefore, the appellants were having enmity with him. This witness was cross-examined.
In cross-examination, this witness has stated that he is aware of the fact that "X", wife of Balram had filed a complaint for offence under Section 376 of IPC against the deceased Mohan Singh, Ramgopal and Suresh which was registered and accordingly, FIR was lodged. He denied that he and other persons had staged an agitation in the police station and had caused damage to the police station. He denied that during this agitation, the police had beaten the agitators and accordingly, Mohan Singh suffered injuries and he died. He denied for want of knowledge that criminal trial no.219/2009 for offence under Sections 147, 149, 353, 332 of I.P.C. is pending against Pawan and 24 other persons. He admitted that a criminal case is pending against his relatives for causing damage to the police station, but he claimed that they have been falsely implicated. He stated that 2/3 part of the land was purchased by him from Raju. He denied for want of knowledge that the S.D.O. had found that Raju had 1/5 share in the land. He denied that he has deliberately purchased the land. He denied that prior to the incident, he and his son Mohan Sigh had beaten the family member of the appellants twice or thrice. He denied 13 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) for want of knowledge that any application was ever given by Gudda in the police station. Since he was terrified therefore, he could not mention the names of Rakesh and Chillu in the FIR as witness. He denied that he has been tutored by Advocate D.S. Chauhan. He denied that Gudda has not beaten the deceased. He denied that false allegations have been made on account of enmity. He denied that his son sustained injuries during agitation in the police station.
25. Radhe Kumhar (P.W.7) has stated that he was going back to his house, whereas the deceased Mohan Singh was coming from his house. Gudda was having Baka whereas Ramjilal was having sword, Balram was having Katar and Govind Das was having Lathi. They asked Mohan Singh to return their land, but Mohan Singh replied that he has purchased the land. Thereafter, Gudda assaulted him by Baka Ramjilal assaulted him by Katar, causing an injury on left hand of Mohan Singh. Similarly Balram assaulted on his left hand by sword. Govind Das assaulted him by Lathi. He, Krishna Bihari, Chillu Barehta, Rakesh Khatik, Gulab Singh Thakur etc. were present on the spot. This witness was cross-examined.
In cross-examination, this witness stated that he does not know the lady family members of the appellants. He denied for want of knowledge that deceased Mohan Singh, Ramgopal and Suresh had raped the wife of Balram and accordingly, complaint case was instituted for offence under Section 376 of IPC. He said that he had heard that on the date of incident, the police station was surrounded 14 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) by people of Thakur caste. However, he denied that Mohan Singh sustained injury during agitation. He denied for want of knowledge that family members of the deceased had purchased the land of appellants and on this issue, enmity was going on.
26. Rakesh Khatik (P.W. 8) has also narrated the same prosecution story. Questions which were put to Chillu (P.W.3) were also put to this witness and similar answers were given by this witness. He denied that he had not seen the incident.
27. Ramesh Singh Bhadoria (P.W.9) is a witness of Lash Panchnama, Ex. P. 9. He was cross-examined.
In cross-examination, this witness denied that the police station was surrounded. However, he admitted that Pawan, Sanjeev, Manharan, Ramesh Singh Bhadoria and 24 other persons were made an accused and the said case is pending before the Court of J.M.F.C. He denied that Mohan Singh had sustained injuries in the agitation.
28. Laxminarayan Koli (P.W.10) is the witness of seizure of Baka from Gudda which was seized vide seizure memo Ex. P.13 on the confessional statement, Ex. P.12. Gudda was arrested vide arrest memo Ex. P.11. In cross-examination, this witness denied that no interrogation was done.
29. Rajendra Awasthy (P.W.11) had brought the cloths of the deceased from the hospital in a sealed packet, which were seized by Head Constable vide seizure memo Ex. P.3.
30. Sitaram Sharma (P.W. 12) has stated that spot map Ex P.14 was 15 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) prepared in his presence.
31. Indrapal Singh (P.W. 13) turned hostile and did not support the prosecution case.
32. Rakesh Sharma (P.W. 14) had partially investigated the matter. He stated that he prepared the spot map, Ex. P.14 on the instructions of Indrapal Singh. The blood stained and plain earth were seized vide seizure memo Ex. P.15. The statement of Indrapal Singh was recorded on 18-1-2009. On 19-1-2009, he had arrested Gudda vide arrest memo Ex. P.11. His confessional statement, Ex. P.12 was recorded and Baka was seized vide seizure memo Ex. P. 13. Article B is the same Baka which was seized from the possession of Gudda. This witness was cross-examined.
In cross-examination, this witness stated that he was posted in police station Bhonti from July 2007 till January 2009. He admitted that a criminal case under Section 376 of I.P.C. was registered against Mohan Singh, Ramgopal and Suresh Singh, on the basis of complaint filed in the Court. He denied for want of knowledge that Govind Das had given any application to the police that the deceased and his father has got his land mutated in their names. He denied that due to political influence, no attempt was made to arrest the accused persons in offence under Section 376 of IPC. He denied that any pressure was put by the family members of the deceased. He came to know that a mob had agitated in the police station. He denied that Mohan Singh had sustained injuries in the said agitation. He was not present in the 16 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) police station Bhonti when crime no.18/2009 was registered. He denied that he ran away from the police station after the agitation had started. He denied that he was removed from the police station after the agitation.
33. Bahadur Singh Raghuvanshi (P.W. 15) is the scriber of F.I.R., Ex. P.10. A copy of the F.I.R. was sent to JMFC, Pichhore. The dispatch entry is Ex. P.17 and its photocopy is Ex. P.17C and the acknowledgment is Ex. P.18. After recording FIR, he had sent Mohan Singh to PHC Manpura along with application, Ex. P.19. Injured Mohan Singh died during treatment accordingly, merg no.4/2009 was received from Police Outpost Hospital. On the basis of said merg report, this witness registered merg no.2/2009 in the police station, Ex. P.20 and its carbon copy is Ex. P.20C.
In cross-examination, he admitted that crime under Section 376 of IPC was registered against Mohan Singh, Ramgopal and Suresh Singh, but could not disclose the name of the prosecutrix. He denied for want of knowledge that any application was given regarding encroachment over land by the deceased and Krishna Bihari. He admitted that on 18-1-2009, the police station was surrounded by the mob and damage was also caused. He explained on his own that the police station was surrounded in the evening and he too was beaten. He admitted that crime no.18/2009 was registered for offence under Section 147, 148, 149, 353, 332 of IPC. He denied that Mohan Singh had sustained injuries in the said agitation.
17
Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010)
34. Narendra Bhargava (P.W.16) has stated that he had arrested Govind Das vide arrest memo Ex. P.5. His confessional statement, Ex. P.6 was recorded and Lathi was seized vide seizure memo Ex. P.7.
In cross-examination, this witness admitted that on 18-1-2009, the police station was surrounded by the mob and damage was caused and accordingly, the S.H.O., Rakesh Sharma was suspended. He admitted that on that incident, case was registered against 15-20 persons.
35. Narendra Sharma (P.W.17) has stated that on 22-1-2009, he was posted as S.H.O., Police Station Bhonti and after submitting his joining, he added offence under Section 302 of IPC. He recorded the statements of Krishna Bihari on 26-1-2009, Chillu on 3-2-2009 and Rakesh Khatik on 22-2-2009. He had sent the seized articles to R.F.S.L. Sagar vide memo Ex. P.21. This witness was cross- examined.
On cross-examination, this witness stated that it is true that the police station was surrounded by the mob and accordingly crime no.18/2009 was registered. He also stated that an offence under Section 376 was registered against Mohan Singh, but stated on his own that closure report was filed in the said case.
36. Ramesh Chandra Sharma (P.W.18) was posted in Police Outpost Hospital. A letter was sent to police outpost to the effect that the deceased Mohan Singh was brought in a dead condition and accordingly, merg no.4/09, Ex.P22 was registered by him. Thereafter, 18 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) he issued notice to the witnesses, Ex. P.8 and Lash Panchanama Ex. P.9 was prepared by him. The dead body was sent for post-mortem. The merg information was handed over to the police constable Himanshu.
37. It is submitted by the Counsel for the appellants, that it appears that after the incident, an agitation took place in the police station and accordingly, Rakesh Sharma (P.W.14) who was the then S.H.O., Police Station Bhonti was placed under suspension. Thereafter, Narendra Sharma (P.W. 17) had done tainted investigation under the political influence.
38. Considered the submissions of the Counsel for the appellants. According to Rakesh Sharma (P.W. 14), he had recorded the statement of Indrapal Singh on 18-1-2009 itself. Since, Indrapal Singh had turned hostile, therefore, his statement recorded under Section 161 of CrPC was marked as Ex. P16. The contents of Ex. P.16 and FIR, Ex. P.10 are same. Furthermore, Mohan Singh was declared dead on 18-1-2009 itself, but it appears that Rakesh Sharma (P.W.14) did not add Section 302 of IPC. It also appears that no proper investigation was being done by Rakesh Sharma (P.W. 14) and therefore, there was an agitation and according to Narendra Bhargava (P.W. 16), Rakesh Sharma was also suspended.
39. So far as the question of sending a copy of FIR to the Court of JMFC Pichhore is concerned, the said copy was dispatched on 18-1- 2009 itself which was received by the Court on 19-1-2009, Ex. P.9. 19
Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) Now the next question is that whether there was any delay in sending the copy of FIR to the Magistrate or not?
40. It is the defence of the appellants themselves that in the evening of 18-1-2009, the police station was surrounded and there was agitation and therefore, Rakesh Sharma (P.W.14), the then S.H.O., Police Station Bhonti was placed under suspension. Constable Bahadur Singh Raghuvanshi (P.W.15) was also beaten. Thus, it appears that there was a ruckus in the police station in the evening of 18-1-2009. It is the case of the appellants, that the police station was surrounded due to the incident in question, but no family member was made an accused in crime no.18/2009. Thus, it is not clear as to whether the agitation was on account of incident in question or for different reason. Even if it is presumed that the agitation took place due to the incident in question, then still it is clear that there were some lapses in the investigation by Rakesh Sharma (P.W. 14) because in spite of the fact that Mohan Singh had expired, the offence under Section 302 of IPC was not added and it was subsequently added by Narendra Sharma (P.W. 17) after joining as S.H.O., Police Station Bhonti on 22-1-2009. Furthermore, Rakesh Sharma (P.W. 14) did not record the statement of complainant Krishna Bihari Singh Tomar also. Thus, it appears that there was some deliberate omissions by Rakesh Sharma (P.W. 14). Under these circumstances, when there was a ruckus in the police station, therefore, if the copy of FIR could not be immediately sent to 20 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) concerning Magistrate on 18-1-2009, but it was received on 19-1- 2009, it cannot be said that there was any delay in dispatch of copy of FIR. Furthermore, if the FIR has been found to be promptly lodged, then delay in sending the FIR cannot give any dent to the prosecution story. The Supreme Court in the case of Pala Singh v. State of Punjab, reported in (1972) 2 SCC 640 has held as under :
8. Shri Kohli strongly criticised the fact that the occurrence report contemplated by Section 157 CrPC was sent to the Magistrate concerned very late. Indeed, this challenge, like the argument of interpolation and belated despatch of the inquest report, was developed for the purpose of showing that the investigation was not just, fair and forthright and, therefore, the prosecution case must be looked at with great suspicion. This argument is also unacceptable. No doubt, the report reached the Magistrate at about 6 p.m. Section 157 CrPC requires such report to be sent forthwith by the police officer concerned to a Magistrate empowered to take cognizance of such offence. This is really designed to keep the Magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under Section 159. But when we find in this case that the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to our notice, then, however improper or objectionable the delayed receipt of the report by the Magistrate concerned it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable. It is not the appellant's case that they have been prejudiced by this delay.
The Supreme Court in the case of Mahmood v. State of U.P., reported in (2007) 14 SCC 16 has held as under :
10. This Court while construing Section 157 of the Code of Criminal Procedure in Anil Rai v. State of Bihar observed that: (SCC p. 335, para 20) "20. [The said provision] is designed to keep the Magistrate informed of the investigation of such cognizable offence so as to be able to control the 21 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) investigation and if necessary to give appropriate direction under Section 159 of the Code of Criminal Procedure. But where the FIR is shown to have actually been recorded without delay and investigation started on the basis of the FIR, the delay in sending the copy of the report to the Magistrate cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable."
11. This Court further took the view that the delay contemplated under Section 157 of the Code for doubting the authenticity of FIR is not every delay but only extraordinary and unexplained delay. We do not propose to burden this short judgment of ours with various authoritative pronouncements on the subject since the law is so well settled that delay in dispatch of FIR by itself is not a circumstance which can throw out the prosecution case in its entirety, particularly in cases where the prosecution provides cogent and reasonable explanation for the delay in dispatch of FIR.
12. The same principle has been reiterated by this Court in Alla China Apparao v. State of A.P. wherein this Court while construing the expression "forthwith" in Section 157(1) of the Code of Criminal Procedure observed that:
(SCC pp. 445-46, para 9) "9. ... it is a matter of common experience that there has been tremendous rise in crime resulting in enormous volume of work, but increase in the police force has not been made in the same proportion. In view of the aforesaid factors, the expression 'forthwith' within the meaning of Section 157(1) obviously cannot mean that the prosecution is required to explain every hour's delay in sending the first information report to the Magistrate, of course, the same has to be sent with reasonable dispatch, which would obviously mean within a reasonably possible time in the circumstances prevailing. Therefore, in our view, the first information report was sent to the Magistrate with reasonable promptitude and no delay at all was caused in forwarding the same to the Magistrate. In any view of the matter, even if the Magistrate's Court was close by and the first information report reached him within six hours from the time of its lodgement, in view of the increase in workload, we have no hesitation in saying that even in such a case it cannot be said that there was any delay at all in forwarding the first information report to the Magistrate."22
Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010)
13. It is not possible to lay down any universal rule as to within what time the special report is required to be dispatched by the Station House Officer after recording FIR. Each case turns on its own facts.
The Supreme Court in the case of Jafel Biswas v. State of W.B., reported in (2019) 12 SCC 560 has held as under :
16. The purpose and scope of Section 157 CrPC has time and again been considered by this Court in large number of cases.
17. The learned counsel for the appellant has relied on State of Rajasthan v. Daud Khan, Sheo Shankar Singh v. State of U.P. and Bijoy Singh v. State of Bihar.
18. In State of Rajasthan in paras 27 and 28, this Court has laid down as follows: (SCC pp. 620-21) "27. The delay in sending the special report was also the subject of discussion in a recent decision being Sheo Shankar Singh v. State of U.P. wherein it was held that before such a contention is countenanced, the accused must show prejudice having been caused by the delayed dispatch of the FIR to the Magistrate. It was held, relying upon several earlier decisions as follows: (SCC pp. 549-50, paras 30-31) '30. One other submission made on behalf of the appellants was that in the absence of any proof of forwarding the FIR copy to the jurisdiction Magistrate, violation of Section 157 CrPC has crept in and thereby, the very registration of the FIR becomes doubtful. The said submission will have to be rejected, inasmuch as the FIR placed before the Court discloses that the same was reported at 4.00 p.m. on 13-6-1979 and was forwarded on the very next day viz. 14-6-1979.
Further, a perusal of the impugned judgments of the High Court as well as of the trial court discloses that no case of any prejudice was shown nor even raised on behalf of the appellants based on alleged violation of Section 157 CrPC. Time and again, this Court has held that unless serious prejudice was demonstrated to have been suffered as against the accused, mere delay in sending the FIR to the Magistrate by itself will not have any deteriorating (sic) effect on the case of the prosecution. Therefore, the said submission made on behalf of the appellants cannot be sustained.
31. In this context, we would like to refer to a recent decision of this Court in Sandeep v. State of U.P. 23 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) wherein the said position has been explained as under
in paras 62-63: (SCC p. 132) "62. It was also feebly contended on behalf of the appellants that the express report was not forwarded to the Magistrate as stipulated under Section 157 CrPC instantaneously. According to the learned counsel FIR which was initially registered on 17-11-2004 was given a number on 19-11-2004 as FIR No. 116 of 2004 and it was altered on 20-11-2004 and was forwarded only on 25-11-2004 to the Magistrate. As far as the said contention is concerned, we only wish to refer to the reported decision of this Court in Pala Singh v.
State of Punjab wherein this Court has clearly held that (SCC p. 645, para 8) where the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the court then, however improper or objectionable the delay in receipt of the report by the Magistrate concerned be, in the absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.
63. Applying the above ratio in Pala Singh to the case on hand, while pointing out the delay in the forwarding of the FIR to the Magistrate, no prejudice was said to have been caused to the appellants by virtue of the said delay. As far as the commencement of the investigation is concerned, our earlier detailed discussion discloses that there was no dearth in that aspect. In such circumstances we do not find any infirmity in the case of the prosecution on that score. In fact the above decision was subsequently followed in Sarwan Singh v. State of Punjab, Anil Rai v. State of Bihar and Aqeel Ahmad v. State of U.P."'
28. It is no doubt true that one of the external checks against antedating or ante-timing an FIR is the time of its dispatch to the Magistrate or its receipt by the Magistrate. The dispatch of a copy of the FIR "forthwith" ensures that there is no manipulation or interpolation in the FIR. If the prosecution is asked to give an explanation for the delay in the dispatch of a copy of the FIR, it ought to do so. However, if the court is convinced of the prosecution version's truthfulness and trustworthiness of the witnesses, the absence of an explanation may not be regarded as detrimental to the prosecution case. It would depend on the facts and circumstances of the case."
24
Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010)
19. The obligation is on the IO to communicate the report to the Magistrate. The obligation cast on the IO is an obligation of a public duty. But it has been held by this Court that in the event the report is submitted with delay or due to any lapse, the trial shall not be affected. The delay in submitting the report is always taken as a ground to challenge the veracity of the FIR and the day and time of the lodging of the FIR.
41. So far as the submission made by the Counsel for the appellants regarding time of death is concerned, it is the stand of the Counsel for the appellants, that since, rigor mortis had already started at the time of post-mortem, therefore, it is clear that the death did not take place 3 hours prior to the post-mortem.
42. Considered the submissions made by the Counsel for the appellants.
43. The incident is alleged to have taken place at 11-11:30 A.M., whereas the Post-mortem started at 3:35 P.M. According to the post- mortem report, Ex. P.2, the duration of death was 3 hours to 12 hours. If the incident took place at 11-11:30 A.M., then it is clear that the post-mortem was conducted after 4 hours of incident. No question was put to Dr. P.K. Dubey (P.W. 1) with regard to duration of death mentioned in the post-mortem report, Ex.P.2. Furthermore, beginning of rigor mortis is dependent upon the weather conditions. Therefore, in absence of any challenge to the duration of death mentioned in the post-mortem report, Ex. P.2, it is held that the submission that the death of the deceased had already taken place much prior to 11-11:30 A.M. is false and is accordingly rejected.
25
Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010)
44. It is next contended by the Counsel for the appellants, that the ocular evidence with regard to the role played by Govind Das is not supported by medical evidence, as no injury which could have been caused by hard and blunt object was found on the dead body of the deceased Mohan Singh.
45. Considered the submissions.
46. In the post-mortem report, Ex. P.2, injury no.4 was an abrasion on the neck. It is a matter of common knowledge that after having suffered multiple sharp cut injuries on the vital part of the body, the injured Mohan Singh must have fallen down on the ground. If a Lathi blow is given, an abrasion can also be sustained by the injured due to the rough surface or joints on Lathi. Furthermore, no suggestion was given to Dr. P.K. Dubey (P.W. 1) that the injury no.4 could not have been caused by hard and blunt object, specifically when Dr. P.K. Dubey (P.W.1) had given a specific opinion in the post-mortem report, Ex. P.2 that the injury no.4 was caused by hard and blunt object.
47. The FIR was lodged within a period of 25 minutes of the incident and the distance of police station is only ½ KM. Further, the injured was taken to the PHC Manpura and from there he was referred to District Hospital, Shivpuri, where he reached at 1:25 P.M. The presence of Govind Das with a Lathi is mentioned in the FIR itself and his overt act is also mentioned. Thus, in view of the post- mortem report, Ex.P.10, it cannot be said that there is any 26 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) contradiction in ocular and medical evidence.
48. So far as non-mention of number of FIR in the notice issued under Section 175, Ex. P.8, Naksha Panchayatnama, Ex. P.9 as well as the requisition for post-mortem, is concerned, it is sufficient to mention here that there is no column for mentioning the number of FIR. Thus, non-mention of number of FIR in any of the above mentioned documents does not indicate that the FIR was ante-dated or ante-timed document.
49. No other argument is advanced by the Counsel for the appellants.
50. Considering the evidence which has come on record, it is clear there was bad blood between the parties and the complainant party had purchased the land from the nephews of the appellant Govind Das, therefore, the appellants had personal grudge against Mohan Singh. Further, a false complaint of commission of rape was also made by the wife of the co-accused Balram against Mohan Singh (Deceased), Ramgopal and Suresh. Narendra Sharma (P.W.17) has stated that closure report was filed in the crime registered for offence under Section 376 of IPC, therefore, it is clear that the appellants had strong motive to kill the deceased Mohan Singh. Thus, strong motive also establishes the guilt of the appellants. Further, the Counsel for the appellants could not point out anything from the cross- examination of the witness, which may make their evidence unreliable. In fact, no effective cross-examination was done. The 27 Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010) FIR was lodged immediately and the prosecution witnesses have clearly stated that the appellant Govind Das had assaulted by lathi and appellant Gudda @ Rameshwar had assaulted by Baka on the nose of the deceased Mohan Singh. The injuries are also corroborated by medical evidence.
51. Thus, this Court is of the considered opinion, that the Trial Court has rightly held that the appellants are guilty of committing offence under Section 302/34 of I.P.C. Accordingly, the conviction of appellants Govind Das and Gudda for offence under Section 302/34 of IPC is hereby affirmed.
52. So far as the question of sentence is concerned, the minimum sentence for offence under Section 302 of IPC is life imprisonment. Therefore, the sentence awarded by the Trial Court does not call for any interference.
53. Ex-Consequenti, the judgment and sentence dated 23-2-2010 passed by Additional Sessions Judge, Pichhore, Distt. Shivpuri in S.T. No.106/2009 is hereby affirmed.
54. The appellant Govind Das is on bail. His bail bonds are cancelled. He is directed to immediately surrender before the Trial Court for undergoing the remaining jail sentence.
55. The appellant Gudda is in jail. He shall undergo the remaining jail sentence.
56. Let a copy of this judgment be immediately provided to the appellant Gudda, free of cost.
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Govind Das Vs. State of M.P. (Criminal Appeal No. 227 of 2010)
57. The record of the Trial Court be sent back along with copy of this judgment for necessary information and compliance.
58. The appeal filed by Govind Das and Gudda is hereby Dismissed.
(G.S. Ahluwalia) (Deepak Kumar Agarwal)
Judge Judge
ARUN KUMAR MISHRA
2022.01.06 16:24:31 +05'30'