Madhya Pradesh High Court
Udaybhan Singh vs State Of M.P. on 11 March, 2019
1 Cr.A.572/2008 & Cr.A.No.597/2008
High Court of Madhya Pradesh
Bench at Gwalior
DIVISION BENCH: Hon.Shri Justice Vivek Agarwal &
Hon.Shri Justice G.S.Ahluwalia
Criminal Appeal No.572/2008
1. Veerbahadur (dead).
2. Shivkumar Singh S/o
Veerbahadur Singh, aged
34 years, Occupation -
Agriculture.
3. Raju @ Rajkumar S/o Shri
Veerbahadur Singh, Aged
32 years, Occupation -
Agriculture.
4. Sanju @ Samrat Singh S/o
Veerbahadur Singh, Aged
25 years, Occupation -
Agriculture,
R/o - Village Kanawar,
Thana - Umri, District
Bhind.
......Appellants
Versus
State of M.P. through Police
Station Umri, District Bhind.
.....Respondent
AND
Criminal Appeal No.597/2008
1. Udaybhan Singh S/o
Sauram Singh, Aged 22
years, Occupation -
Kashtakari.
2. Sauram S/o Banwari,
Aged 62 years, Occupation
- Agriculture.
2 Cr.A.572/2008 & Cr.A.No.597/2008
R/o - Village Kanawar,
Thana - Umri, District
Bhind (M.P.).
......Appellants
Versus
State of M.P. through Police
Station Umri, District Bhind
(M.P.).
.....Respondent
------------------------------------------------------------------------
Cr.A.No.572/2008 :
Shri Amit Goswami, learned counsel for the appellants.
Shri S.S.Rajput, learned Public Prosecutor for the
respondent/State.
Shri B.S.Gour, learned counsel for the complainant.
Cr.A.No.597/2008 :
Shri V.K.Saxena, learned senior counsel with Shri Jagdish
Singh Ghuraia, learned counsel for the appellants.
Shri S.S.Rajput, learned Public Prosecutor for the
respondent/State.
Shri B.S.Gour, learned counsel for the complainant.
------------------------------------------------------------------------
Whether approved for Reporting :
JUDGMENT
(Delivered on this 11th day of March 2019) Per Justice Vivek Agarwal :
These two appeals have been filed by the appellants being aggrieved by the judgment dt.24.07.2008 passed in 3 Cr.A.572/2008 & Cr.A.No.597/2008 Sessions Case No.214/2006 by the court of First Additional Sessions Judge to the court of First Additional Sessions Judge, Bhind, whereby the appellants have been convicted under the provisions of Section 302/149 of IPC with life imprisonment and fine of Rs.1,000/- and in case of default of payment of fine, two months' additional imprisonment.
Similarly, each of the appellants has been convicted under Section 148 of I.P.C. with one year's R.I. and fine of Rs.500/- and in default of payment of fine, one month's simple imprisonment. Appellant Udaybhan Singh @ Pappu and Sauram Singh have also been convicted under the provisions of Section 25 (1-B) (A) read with Section 3 and 27 of Arms Act with imprisonment for one year and fine of Rs.500/- and in case of default of fine, further imprisonment for one month.
2. At the out set, it is to be pointed out that during pendency of the appeal, appellant No.1 in Criminal Appeal No.572/2008, namely Veerbahadur S/o Govind Singh passed away and therefore appeal has abated for him.
3. Prosecution case in short is that on 23.07.2006 at about 3.30 p.m. prosecution witness Padam Singh (P.W.5) had lodged FIR (Ex.P/6) that his son Kailash Singh had 4 Cr.A.572/2008 & Cr.A.No.597/2008 gone to sow Bajra crop on the field close to the house of the accused Veerbahadur Singh when it was disclosed that some dispute had taken place between his son and Veerbahadur. At the relevant point of time, he was also going towards that direction when he saw his son Kailash coming on the road close to the field of Prahlad Singh. At that time, Veerbahadur armed with a mauser gun, Shiv Kumar with mauser gun, Sanjay with 12 bore double barrel gun, Bhanu with licenced gun, Raju with 12 bore double barrel gun, Udaybhan @ Pappu with 12 bore double barrel gun, Sauram Bhadoria armed with a katta of 315 bore, surrounded his son Kailash and fired shots on him with intention to kill him. Bullet had pierced in right arm and ribs on the right hand side. This incident was seen by witnesses Rammohan (P.W.7), Indrajeet (P.W.8) and Shyambihari (P.W.6). Kailash was admitted in District Hospital Bhind, where he died, on which intimation was sent vide Ex.P/4 to the City Kotwali Bhind. Spot Map (Ex.P/7) was prepared. Dead body was sent for post mortem and post mortem was conducted vide Ex.P/16. Thereafter, after carrying out the investigation, charge sheet was filed. Accused had abjured their guilt.
5 Cr.A.572/2008 & Cr.A.No.597/2008
4. Learned counsel for the appellants submits that the prosecution witnesses are not reliable witnesses and all the eye witnesses are related to each others. It is submitted that Padam Singh (P.W.5), who had lodged the FIR (Ex.P/6) at about 16.30 hours, is father of the deceased. Shyambihari (P.W.6) is the cousin brother of deceased Kailash. Rammohan Singh (P.W.7) is the real younger brother of the deceased Kailash. Indrajeet (P.W.8) is also a cousin brother of deceased Kailash.
5. It is also submitted that though arms were sent for examination vide Ex.P/26 but empties were not sent for examination so to corroborate as to which of the bullet/ cartridge were fired from which of the weapons alleged to have been used in the commission of the crime.
6. It is also submitted that no crime number is mentioned on Ex.P/2, which is Nazri Naksha, Ex.P/3 - information of incidental death, Ex.P/4 - letter to T.I. and Ex.P/5 - Medical Report of Kailash Singh, gives rise to a bona fide doubt that such documents were prepared on a subsequent date.
7. It is also submitted that as per the post mortem report (Ex.P/16), death was caused due to gun shot injury leading to injury to vital organs resulting in excessive haemorrhage 6 Cr.A.572/2008 & Cr.A.No.597/2008 and shock causing death. Though mode of death is mentioned as homicidal but Dr.Ajeet Mishra (P.W.9), who conducted post mortem, admitted that there was an entry wound measuring 2 x 2 cm. on the right arm with inverted corners. There was blackening around the wound. There was an exit wound measuring 4 x 3 x 1/2 cm. in the center of the right arm. There was fracture in the humerus bone of the right hand and there was an entry wound on the right hand side of the chest with inverted margins and blackening but there was no exit wound but in the post mortem, no bullet was found in the body. It is submitted that Dr.R.K.Agarwal (P.W.4), who had conducted MLC at District Hospital Bhind, had clearly opined that if immediate medical help would have been made available to the deceased, then his life could have been saved.
8. It is also submitted that the timing and place of lodging of the FIR is also doubtful, inasmuch as Padam Singh (P.W.5) has deposed that T.I. had come out side the police station and had recorded the report and after this Kailash was sent alongwith his brother for treatment to Bhind Hospital. It is submitted that conduct of Padam Singh (P.W.5), father of the deceased, is suspicious, inasmuch as 7 Cr.A.572/2008 & Cr.A.No.597/2008 instead of going to hospital to take care of his son, he admitted to have returned back to the village alongwith Daroga for further investigation.
9. It is also submitted that it is a case of false accusations where all the persons have been falsely implicated and all the members of the family of Veerbahadur have been falsely implicated.
10. It is also submitted that two witnesses have been examined in defence, namely; Balbeer Singh (D.W.1) and Ripudaman (D.W.2). Balbeer Singh (D.W.1) has deposed that Kailash, Jaspal, Indrajeet, Rammohan were armed with guns and had fired gun shots at Udaybhan, who is accused in the present case. Since Udaybhan was barehanded and one of the bullets fired by them had stuck Kailash, therefore, Kailash has not died of any act of the accused but due to he being entrapped in a cross-fire of his own party. Similarly, it is pointed out that Ripudaman (D.W.2) has deposed that on 23.07.2006 accused Veerbahadur, Shivkumar, Raju @ Rajkumar, Sanju @ Sangramsingh had participated in the 13th day ceremony of his grandmother on 23.07.2006, for which they had reached his village Kotharvala on 22.7.2006 at about 4.00 p.m. and had stayed at his house on 23.7.2006 8 Cr.A.572/2008 & Cr.A.No.597/2008 and thereafter had left his house on 24.7.2006. In support of his claim, he has exhibited invitation card of such 13 th day ceremony as Ex.D/4, in which his name is mentioned from 'A' to 'A' part.
11. Learned counsel for the appellants have placed reliance on the judgment of the Hon'ble Supreme Court in the case of State of M.P. Vs. Kriparam, as reported in 2004 (1) CCSC 188, wherein Hon'ble Supreme Court has upheld the judgment of acquittal recorded by the High Court of M.P. on the ground that there was no eye witness and even Serologist had not corroborated the recoveries as he had not stated that any human blood was found on the recovered articles.
Similarly, reliance has been placed to the judgment of the Hon'ble Supreme Court in the case of State of Punjab Vs. Sucha Singh and others as reported in 2003 (1) CCSC 346, wherein again acquittal recorded by the High Court of Punjab has been upheld on the ground that there was discrepancy between the ocular testimony and medical evidence and treating the animosity to be double edged weapon, Supreme Court has refused to interfere in the finding of the acquittal.
Reliance has also been placed on the judgment of the 9 Cr.A.572/2008 & Cr.A.No.597/2008 Hon'ble Supreme Court in the case of State of Rajasthan Vs. Bhanwar Singh as reported in 2004 (3) CCSC 1479 is also on the same basis that there was discrepancy in the ocular evidence and the medical evidence, therefore, finding of the acquittal of the High Court was upheld. In the case of State of Uttar Pradesh Vs. Shiv Kumar and others as reported in 2005 (2) CCSC 592, Hon'ble Supreme Court after finding the evidence of so called eye witnesses doubtful refused to disturb the finding of acquittal recorded by the High Court.
Reliance has also been placed on the judgment of the Hon'ble Supreme Court in the case of Mathura Yadav Vs. State of Bihar as reported in 2003 (I) MPWN SN 75, wherein it has been held that glaring omissions and discrepancies in the statement of related eye-witnesses can not be ignored and though independent eye witnesses were present but have not been examined by the prosecution renders its case doubtful.
Similarly, in the case of Daljit Singh Vs. State of Punjab as reported in 1999 (I) MPWN SN 122, it has been held that when conduct of alleged eye-witness son of the deceased is not natural and statement of another eye-witness 10 Cr.A.572/2008 & Cr.A.No.597/2008 is not consistent, no conviction can be recorded.
In the case of Narayan and another Vs. State of M.P. as reported in 2005 Cr.L.R. (M.P.).219, it has been held that two eye- witnesses of the offence being brothers and close relatives of the deceased were examined but prosecution did not furnish any explanation for not examining independent witnesses who were present on the spot. Also finding the motive of crime alleged by the prosecution to be weak and not helpful to the prosecution, conviction was set aside.
In the case of Mujabir Khan Vs. State of M.P. as reported in 2005 Cr.L.R. (M.P.) 877, observing material contradictions and omissions in the statement of prosecution witnesses accused appellants were acquitted. In the case of Balram and others Vs. State of M.P. as reported in 2018 (3) CDHC 1498 (M.P.). 1498, it has been held that in the absence of any evidence to prove factum of common object between all the appellants, it is unsafe to convict any appellant with the aid of Section 149 of IPC even for causing injury much less murder.
12. Learned Public Prosecutor on the other hand submits that this is not a case of circumstantial evidence but a case of direct eye-witness account. It is submitted that conduct of 11 Cr.A.572/2008 & Cr.A.No.597/2008 none of the witnesses is unnatural and there was enmity over cultivating the land over which such incident has taken place. It is submitted that argument of learned counsel for the appellants that Dr.R.K.Agarwal (P.W.4) had opined that if treatment would have been received by the deceased in time, then his life could have been saved with a consequential prayer to convert the offence from one Section 302/149 of IPC to Section 304 Part II of IPC is not made out specially when Dr.Ajeet Mishra (P.W.9), who conducted the post mortem, has categorically deposed in para 7 of his cross-examination that after sustaining injuries, as were sustained by the deceased, he could have survived for 10-15 minutes and even if he would have been given immediate treatment, there were no chances of his survival. This witness has not been confronted with the deposition of Dr.R.K.Agarwal (P.W.4), whose statements were recorded on 22.3.2007, whereas statement of P.W.9 were recorded on 17.5.2007.
13. As regards to the submission of the learned counsel for the appellants that FIR was ante-dated, as there was no mention of crime number on Ex.P/2, P/3, P/4 and P/5, it is submitted by the learned Public Prosecutor that report was timely sent to the JMFC concerned and this aspect has not 12 Cr.A.572/2008 & Cr.A.No.597/2008 been disputed. Further Ex.P/2 was prepared by Patwari and therefore, there was no occasion for Patwari to have put crime number on such documents. It is also submitted that prosecution case can not be thrown out merely because certain documents do not contain crime number. It is submitted that it is a case of brutal murder by an unlawful assembly of five or more persons and therefore the conviction, which has been recorded by the trial court, is just and correct and does not call for any interference.
14. As far as submission of the learned counsel for the appellants that certain documents were not having crime number described on them is concerned, this aspect has been dealt with by the Division Bench of this court in the case of Ramsingh and others Vs. State of M.P. decided on 27.10.2006, wherein it has been held that such mistake is not fatal to the case of the prosecution.
15. As far as the judgments in the case of Kriparam (supra), Sucha Singh (supra), Bhanwar Singh (supra) and Shiv Kumar (supra) are concerned, they have no relevance to the facts of the present case, inasmuch as convicted accused died of gun shot injuries and ocular evidence is duly corroborated by the medical evidence.
13 Cr.A.572/2008 & Cr.A.No.597/2008
16. Arguments of the learned counsel for the appellants that Dr.R.K.Agarwal (P.W.4) had opined that if the deceased would have received immediate treatment then his life could have been saved is not correct, inasmuch as this statement is contradicted by Dr.Ajeet Mishra (P.W.9), who conducted post mortem and he was never confronted with such statement of Dr.R.K.Agarwal (P.W.4).
17. As far as the judgments in the case of Mathura Yadav (supra), Daljit Singh (supra), Mujabir Khan (supra) and Narayan (supra) are concerned, they are on different facts because even the defence witnesses have done a good job to discredit their own case as will be apparent from the testimony of Balbeer Singh (D.W.1) and Ripudaman (D.W.2). Balbeer Singh (D.W.1) has taken a line of defence that the deceased died being trapped in the cross fire of his own members who fired shots on Udaybhan, whereas Ripudaman (D.W.2) has deposed that accused were not present on the scene of crime and were participating in 13th day ceremony of his grandmother at his village. Thus, Balbeer Singh (D.W.1) and Ripudaman (D.W.2) have taken two different hypothesis. Alibi of absence could not be proved by just producing a card of 13 th day ceremony of 14 Cr.A.572/2008 & Cr.A.No.597/2008 grandmother of Ripudaman (D.W.2). There is consistency in the evidence of the eye witnesses. FSL Report (Ex.P/26) has proved that guns, which were seized from the accused contained remnants of their earlier use and therefore onus was on the appellant to point out as to where they had used such licensed gun on an earlier occasion and account for the bullets so consumed. This report of the FSL has also not been contradicted through any cogent reliable evidence and therefore when ocular evidence corroborates with the medical evidence as well as scientific evidence, no authority can fault but to accept the judgment of the trial court.
18. The death was homicidal and this fact has not been challenged by the defence counsel at any point of cross examination of the prosecution witnesses.
19. There was no delay in lodging of the FIR so to demonstrate that there was sufficient time leg to implicate others, who were not present on the scene of incident. Even the names of the other prosecution witnesses, who were present at the scene of crime, have been mentioned in the FIR (Ex.P/6) and therefore it can not be said that such witnesses were nurtured at a later point of time. Though it is true that prosecution witnesses have not been able to point 15 Cr.A.572/2008 & Cr.A.No.597/2008 out as to which of the accused fired from which of the gun and which had hit at which place of the body of the deceased, but that is not such a major omission so as to render the presence of the accused doubtful at the scene of crime.
20. The plea of the appellants that all the eye witnesses being related to the deceased and no independent witness is examined is also not such a material omission so to render the prosecution story completely irrelevant. In the case of Dalip Singh Vs. State of Punjab as reported in AIR 1953 SC 364, it has been held that mere fact that witness is a relation of a victim is not sufficient to discard his testimony. It has also been held that when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but there should be foundation for such a criticism and the mere fact of relationship far from being a foundation for such criticism is often sure guarantee of truth. Similarly, in the case of Gurcharan Singh Vs. State of Punjab as reported in AIR 1956 SC 460, it has been held that relationship of the three out of four prosecution witnesses to the murdered man is no ground for 16 Cr.A.572/2008 & Cr.A.No.597/2008 not acting upon their testimony if it is otherwise reliable in the sense that the witnesses were competent witnesses who could be expected to be near about the place of occurrence and could have seen what happened there at the scene of occurrence. In this regard, Ex.P/7, Crime Details form and the spot map is relevant, wherefrom it is apparent that the house of Veerbahadur is in close proximity to the place of the occurrence of the incident. Similarly, house of accused Sauram is also in close proximity of the place of the incident and therefore their presence at the relevant place can not be doubted. Moreover, in his statement under Section 313 Cr.P.C. accused Udaybhan have not taken a plea of his absence from the scene of crime. To advance such plea of absence, no independent witness has been examined inasmuch Ripudaman (D.W.2) has admitted that he is cousin brother of Veerbahadur, who happened to be son of his maternal uncle. In the case of Sarwan Singh Vs. State of Punjab as reported in AIR 1976 SC 2304, it has been held that relationship by itself is not a ground to discredit the testimony of the witnesses if it was otherwise found to be consistent and true.
21. In the case of Chandrika Prasad Singh Vs. State of 17 Cr.A.572/2008 & Cr.A.No.597/2008 Bihar as reported in AIR 1972 SC 109, it has been held that onus to establish alibi is on the accused and if it is not discharged the appellate court will not interfere in the finding of the lower court. In the case of State of Haryana Vs. Sher Singh as reported in AIR 1981 SC 1021, it has been held that when an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act.
18. Learned counsel's last argument is that with the aid of Section 149 of IPC, all the accused could not have been convicted and he has also placed reliance on the judgment of the Division Bench of this court in the case of Balram (supra), but here the facts are slightly different, inasmuch as per the post mortem report (Ex.P/16), testified by Dr.Ajeet Mishra (P.W.9), there were two entry wounds on the body of the deceased. This witness has clearly opined that both the injuries could not have been caused through a single gun shot. Specific role has been ascribed by the eye witnesses and therefore facts of the case of Balram (supra) are different. It is not the case of the appellants that it was a sudden action of the one of the members of the assembly and therefore all are not liable. As per the recitals in the FIR and the evidence, which has been adduced that the deceased 18 Cr.A.572/2008 & Cr.A.No.597/2008 was surrounded by all the accused, who were armed with deadly weapons and therefore common object can be gathered from the facts and circumstances of the case. In fact, once it has been proved that there was an unlawful assembly and the offence was by a member of unlawful assembly and in prosecution of the common object of the assembly, then conviction can not be interfered with. In the present case all the ingredients of Section 149 are made out and merely because witnesses are related to the deceased is not sufficient to discard their otherwise cogent testimony.
22. Reliance can be placed on the judgment of the Hon'ble Supreme Court in the case of Anup Lal Yadav Vs. State of Bihar as reported in (2014) 10 SCC 275, wherein a concept of constructive liability for being part of unlawful assembly has been propagated and it has been held that there is no necessity to show overt act by all. It has been held that it is well settled that once it is established that unlawful assembly had a common object, it is not necessary that all persons forming unlawful assembly must be shown to have committed some overt act, rather they can be convicted under Section 149 of IPC.
23. Reliance can also be placed on the judgment of the 19 Cr.A.572/2008 & Cr.A.No.597/2008 Hon'ble Supreme Court in the case of State of U.P. Vs. Keshav Chand and others as reported in AIR 2004 SC 4671, wherein it has been held that there is difference between Section 34 and Section 149, inasmuch as Section 149 deals with common object and Section 34 travels far beyond it and one has to gather common intention to convict a person. Moreover, under Section 149, only being member of unlawful assembly is sufficient to record conviction and therefore individual act becomes secondary unlike section 34, where individual act is equally important to record any finding of conviction. Thus, when there is no inconsistency in the prosecution story that all the accused/appellants were present on the scene of the crime and were part of unlawful assembly and with a common object fired several bullets on the deceased, the conviction under Section 302 or 302 with the aid of Section 149 can not be faulted with.
24. Therefore, the appellants have failed to make out a case to substantiate either alibi of absence or the case that deceased died because of injury caused by cross fire of members of his own party. Thus, no fault can be attributed to the judgment of conviction passed by the trial court. Both the appeals fail and are dismissed. Appellants Raju @ 20 Cr.A.572/2008 & Cr.A.No.597/2008 Rajkumar and Sanju @ Samrat Singh in Cr.A. No.572/2008 and appellants Udaybhan Singh and Sauram in Cr.A.No.597/2008 are on bail. Their bail bonds stand cancelled. They are directed to surrender before the trial court on or before 25th March 2019 to serve remaining sentence.
Let a copy of the judgment and the record be sent to the trial court.
(Vivek Agarwal) (G.S.Ahluwalia)
Judge Judge
SP
SANJEEV
KUMAR PHANSE
2019.03.13
11:29:38 +05'30'