Madhya Pradesh High Court
Balwant vs State Of M.P. on 27 November, 2017
1
Cr.A. No. 413/2007 & 743/2007
HIGH COURT OF MADHYA PRADESH BENCH
GWALIOR
DIVISION BENCH :
JUSTICE ASHOK KUMAR JOSHI
&
JUSTICE VIVEK AGARWAL
Criminal Appeal No.413/2007
Rajendra
----------Appellant
Vs.
State of Madhya Pradesh
--------Respondent
And
Criminal Appeal No.743/2007
Balwant
----------Appellant
Vs.
State of Madhya Pradesh
--------Respondent
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Appellant - Rajendra by Shri J.P. Kushwaha, Advocate.
Appellant - Balwant by Shri R.K.S. Kushwaha, Advocate.
Respondent/State by Shri A.K. Nirankari, Public Prosecutor.
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JUDGMENT
(27/11/2017) Per Justice Ashok Kumar Joshi:
By this common judgment being passed in Criminal Appeal No. 413/2007, an another Criminal Appeal No. 743/2007 is also being decided as both these appeals have arisen from the judgment dated 27.04.2007 passed by Second Additional Sessions Judge, Gwalior in Sessions Trial No. 2 Cr.A. No. 413/2007 & 743/2007 97/2005, whereby appellant Rajendra of Criminal Appeal No. 413/2007 has been convicted and sentenced under Section 302/34 of IPC to undergo life imprisonment with a fine of Rs.5,000/- with default stipulation and by the same judgment, appellant Balwant of Criminal Appeal No. 743/2007 has been convicted and sentenced under Section 302/34 of IPC to undergo life imprisonment with a fine of Rs.5,000/- and under Section 25(1-B)(a) of the Arms Act to undergo one year's rigorous imprisonment with a fine of Rs.1,000/- and under Section 27(1) of the Arms Act to undergo three years' rigorous imprisonment with a fine of Rs.3,000/- with default stipulation.
(2) It would be significant to mention here that at the time of trial of both the appellants, other two accused persons of the same crime and sessions trial, Bhagwandas and Badshah were absconding. Bhagwandas is still absconding but Badshah is being tried separately before the trial Court.
(3) Prosecution's case, in brief, is that on 29.10.2004 in the night at about 10:30 PM, the complainant Pooran Singh (PW-1) was seated in his brother Rajpal's STD shop situated at Rangiyana Mohalla, Hazeera, Gwalior with his brother Rajpal.
At that time, appellant Rajendra Kachhi came there and he called Rajpal and took him away. After some time, complainant heard the sound of abusing, then complainant came out from his shop and reached on the spot, where in front of primary school, complainant saw that present appellants Rajendra and Balwant with their two other companions were scuffling with Rajpal and abusing him. At the same time, appellant Balwant took out country made firearm and fired at Rajpal, due to which, Rajpal sustained injury on the head by bullet and he immediately fell down and became unconscious. At the same 3 Cr.A. No. 413/2007 & 743/2007 time, witnesses Suresh Singh (PW-3) and Raju also came on the spot to save Rajpal, thereafter, appellants and their companions fled away. Complainant Pooran Singh took his injured brother Rajpal in a auto and reached to police outpost Hazeera and lodged FIR (Ex. P-1), which was inscribed by Ramesh Singh Sikarwar (PW-14) in relation to offence punishable under Section 307/34 of IPC and the injured Rajpal was sent to J.A. Hospital, Gwalior for treatment. On production of above-mentioned FIR (Ex. P-1) from police outpost Hazeera by constable Murarilal at Police Station, Gwalior, Crime No. 839/2004 was registered by Head Constable Ramkrishna Pandey (PW-10), after recording FIR Ex. P-7.
(4) At about 11:30 PM Rajpal was admitted in J.A. Hospital, but he expired in the same midnight at about 00:30 (30.10.2004) hours in the hospital. On receiving written intimation (Ex. P-8B) sent by Dr. Roopesh Khatri (PW-12), merg report Ex. P-8 was registered at Police Station, Gwalior. In the midnight, Investigator R.K. Vajpai (PW-17) at 00:30 hours prepared spot map (Ex. P-2) after seeing the scene of occurrence and at the same time, he seized blood stained soil and plain soil from the spot vide seizure memo Ex. P-9. R.K. Vajpai (PW-17) in next morning, after issuing safina form (Ex. P-5B), in presence of panch witnesses after inspecting dead body of Rajpal, preapred inquest memo (Ex. P-6) and, thereafter, sent dead body for postmortem. Dr. Vikram Singh Tomar (PW-5) in J.A. Hospital, Gwalior on 30.10.2004 at 11:15 AM started postmortem of the deceased and found a stitched wound on the head of the deceased, 1 cm above from the right eyebrow and after dissection, took out a bullet from the cavity of the brain, sealed the bullet and sent it to the police. In his 4 Cr.A. No. 413/2007 & 743/2007 opinion, external and internal injuries of the head were caused by firearm were sufficient in ordinary course of nature to cause death and he recorded postmortem report Ex.P-5A.
(5) During investigation, appellant Rajendra was arrested. Appellant Balwant Singh was arrested on 04.11.2004 by the Investigator R.K. Vajpai (PW-17) vide arrest memo Ex. P-7A and on the same day, he seized a country made mouser pistol having double triggers and fired cartridge of bras (peetal) from appellant Balwant and prepared seizure memo Ex. P-8A. Recovered country made pistol and fired cartridge were sent for examination to police line, Gwalior, where Constable-cum-Arms Moharir Lal Singh (PW-18) on 17.11.2004 examined country made pistol and fired cartridge and he found that pistol was in working condition and cartridge was having a mark of firing and Lal Singh recorded his report Ex. P-11. Mentioning two other accused persons Bhagwandas and Badshah absconding, charge-sheet was filed in the Court of JMFC, Gwalior, who committed the case to the Court of Sessions, Gwalior, who in turn transferred arisen sessions trial to above-mentioned trial Court.
(6) Appellant Rajendra abjured the charge of Section 302/34 of IPC and appellant Balwant abjured the charge for offences punishable under Section 302/34 of IPC and Section 25(1-B)(a) and Section 27(1) of Arms Act. Before trial Court for prosecution, complainant Pooran Singh (PW-1), Additional District Magistrate R.K. Jain (PW-2), Suresh Singh (PW-3), Head Constable Omprakash (PW-4), Dr. Vikram Singh Tomar (PW-5), Constable Kalyan Singh (PW-6), Dharmveer Singh (PW-7), Constable Brajraj Singh Tomar (PW-8), Mahendra Singh Chauhan (PW-9), Head Constable Ramkrishna Pandey 5 Cr.A. No. 413/2007 & 743/2007 (PW-10), Gulabchandra Mahor (PW-11), Dr. Roopesh Khatri (PW-12), Chhote Singh Tomar (PW-13), Assistant Sub- Inspector Ramesh Singh Sikarwar (PW-14), Guddu Ratnakar (PW-15), Kishan Singh Tomar (PW-16), Investigator R.K. Vajpai (PW-17) and Constable Lal Singh (PW-18) were examined. It was defence of the above-mentioned appellants that they have been falsely implicated. No defence witness was examined for them. After hearing, by impugned judgment the trial Court convicted and sentenced each appellant with charged offences as stated earlier.
(7) Learned counsel for the appellants vehemently contended that the trial Judge erred in believing on the eyewitnesses account given by complainant Pooran Singh (PW-1), Suresh Singh (PW-3) and Dharmveer Singh (PW-4), who all are real or cousin brothers of deceased and two accused persons Badshah and Bhagwandas were not named by the complainant in the FIR, though according to the evidence of cousin brothers of the deceased, Badshah and Bhagwandas were neighbours and complainant was also acquainted with them. Dharmveer Singh (PW-4) as eyewitness was not named in the FIR, whereas another eyewitness Raju Kushwaha mentioned in the FIR was not examined before the trial Court. It was further argued that seized country made mouser pistol was not sealed in accordance with the rules and seized fire arm and fired cartridge were not sent to the FSL, Sagar for examination. It is vehemently argued that according to evidence of complainant Pooran Singh and Investigator Ramkrishna Pandey, deceased Rajpal was a history-sheeter criminal and it was not explained by the prosecution that who gave primary medical aid to the injured Rajpal and why his MLC 6 Cr.A. No. 413/2007 & 743/2007 was not filed with the charge-sheet, as Dr. Vikram Singh Tomar (PW-5) who conducted autopsy of the dead body found stitched wound on the skull of the deceased but prior to his death, no MLC was recorded in J.A. Hospital, Gwalior. According to unchallenged evidence of Dharmveer Singh (PW-7) cousin brother of the deceased, the incident had occurred at about 09:30 PM, whereas complainant Pooran (PW-1) and Suresh Singh (PW-3) had deposed that incident had occurred at 10:30 PM. Therefore, it is argued that actually incident had occurred much prior to the alleged time of incident and previously injured Rajpal was taken to a private hospital, where his wound was stitched but these material facts are totally suppressed by the prosecution. It was further argued that the alleged eyewitness Dharmveer Singh (PW-7) and his near relative Kishan Singh were made panch-witnesses of the arrest and seizure relating to appelant Balwant instead of independent panch-witness. It is also argued that there are material contradictions between the statements of depositions of witnesses given before the Court and their police statements and it was not safe to rely on such infirm and interested eyewitnesses. Hence, it is prayed that both the appeals be allowed setting aside each appellant's conviction and sentence.
(8) Per contra, learned Public Prosecutor appearing for the State/respondent has supported the findings recorded by the trial Court in the impugned judgment and argued that only due to relationship with the deceased or complainant, the evidence of eyewitnesses could not be discarded and prayer for dismissal of both the appeals is made.
(9) According to evidence of Dr. Vikram Singh Tomar (PW-5) and his postmortem report Ex. P-5, a stitched wound 7 Cr.A. No. 413/2007 & 743/2007 was found on the right side of deceased's forehead situated 1 cm above from the right eyebrow obliquely placed having length of 3.5 cm and medially having 5 stitches with black thread and on dissection, it was found that in frontal lobe of the skull, echymosis was present and the wound was deep up to the cavity of the brain and bullet was found in the occipital region of the brain, which was of bras having length of 3 cm which was sealed by him and sent to the relating police station. He opined that above-mentioned injury was ante-mortem and caused by firearm and was sufficient in ordinary course of nature to cause death and death was occurred due to comma arising from internal damage to the brain and excessive bleeding and death had occurred within 3 to 24 hours from starting of postmortem and it was homicidal in nature. In the cross-examination, Dr. Vikram Singh deposed that it was not possible for him to opine that fire was caused from which distance. Homicidal death of the deceased Rajpal by external and internal injury caused by firearm, is actually not disputed by the appellants. Hence, it was proved that Rajpal met with a homicidal death caused by firearm.
(10) In support of prosecution's case, there were statements given by three eyewitnesses complainant Pooran Singh (PW-1), who is real brother of the deceased and Suresh Singh (PW-3) and Dharmveer Singh (PW-7), who are cousin brothers of the deceased. Fourth examined witness Guddu Ratnakar (PW-15) who was not an eyewitness according to his police statement, gave a deviated deposition as an eyewitness. Hence, he was declared hostile and suggestions of nature of cross-examination were given to him by prosecution. (11) Complainant Pooran Singh (PW-1) deposed that on 8 Cr.A. No. 413/2007 & 743/2007 29.10.2004 at about 10:30 PM, he and his brother Rajpal Singh were present in their STD shop situated at Raja Mandi Road in Char Shahar Ka Naka area of Gwalior and appellant Rajendra took away Rajpal from his shop and, thereafter, he heard the sound of crying and after leaving shop, he proceeded towards the spot, then he saw that appellants Rajendra, Balwant and two other unknown persons were scuffling with Rajpal and abusing and Balwant was having a country made pistol and Balwant fired on Rajpal, which hit on his head, thereafter, Pooran ran to save his brother Rajpal and at the same time, from opposite direction witnesses Suresh (PW-3) and Raju came there, thereafter, appellants and their companions fled away then the complainant Pooran reached by a auto to police outpost Hazeera and lodged FIR Ex. P-1 and Suresh and Raju followed him by their vehicle and after lodging report, they reached to J.A. Hospital, Gwalior, where Rajpal was admitted and injury sustained by Rajpal on his head was stitched but after some time, Rajpal expired.
(12) Suresh Singh (PW-3) deposed that he was having his STD shop in rented house of Mohar Singh and in front of his shop, there is a primary school and at 10:30 PM, he was with Raju Sikarwar in his shop and in front of his shop, a quarrel was occurring among Rajpal and appellants Rajendra, Balwant, Bhagwan, Badshah Kachhi and Suresh Singh also with Raju reached on the spot and saw that Bhagwan, Badshah and Rajendra were scuffling Rajpal and at the same time Balwant, who was standing in front of them, fired by his pistol, which hit on the head of Rajpal and he fell down. Suresh clearly deposed that after falling of Rajpal, he and Raju reached nearer to Rajpal and at the same time, Pooran came there, whereas 9 Cr.A. No. 413/2007 & 743/2007 complainant Pooran Singh clearly deposed in his cross- examination (para-11) that firstly he reached on the spot and, thereafter, Suresh Singh and Raju Sikarwar had came there. Complainant deposed in para 5 that Suresh Singh (PW-3)'s STD shop was about 150 feet away from their STD shop. He clearly deposed in para 6 that previously, he had not seen both the unknown companions of the appellants. He deposed in cross-examination (para-6) that when he reached on the spot, then appellant Balwant was having pistol in his hand, whereas in the FIR Ex. P-1 and police statement Ex. D-1, he stated that Balwant had taken out his pistol.
(13) Complainant Pooran Singh (PW-1) in cross- examination clearly deposed that his brother Rajpal died at 12:30 AM in the same midnight and at that time, he was in J.A. Hospital, whereas according to the evidence of Investigator R.K. Vajpai (PW-17), he prepared spot map Ex. P-2 in the same midnight at 00:30 hours which is also signed by the complainant Pooran Singh. Complainant Pooran Singh clearly deposed in his cross-examination that after death of his brother in hospital, he again reached to Hazeera Chowki to police out post Hazeera in the midnight and signed in Hazeera Chowki after returning from the hospital. In para-14 Pooran Singh clearly deposed that in the midnight at about 01:15 PM, he had reached back to police outpost Hazeera and there he signed on report and thereafter, police officials sent him to the scene of occurrence. Hence, it is clear that the timing mentioned in the FIREx. P-1 of its registration at police outpost Hazeera and the timing mentioned of preparation of spot map is contradicted by the complainant himself.
(14) Some important facts reveal from the spot map Ex.
10Cr.A. No. 413/2007 & 743/2007 P-6 that at that time, there was only a earth road (Kachchi Sadak) situated in east-west direction from Raja Mandi area to Char Shahar Ka Naka area and on north side of this road, Mohar Singh's house is situated, in which the STD shop of Suresh Singh (PW-3) was situated and the distance of Suresh Singh's shop from the spot is shown as 150 feet by the Investigator himself. In front of Mohar Singh's shop, on opposite side of the road, i.e., on southern side, scene of occurrence is surrounded on three sides by houses of the appellant Balwant, house of Pappu Kushwaha on western side and on southern side, it is surrounded by primary school building and the scene of occurrence is surrounded on eastern side by house of the appellant Rajendra and a temple and electricity concrete poll. Complainant and deceased shop is not in the line of scene of occurrence, but it is shown on north side of the road at about 150 meter away from the scene of occurrence as recorded in the spot map by the Investigator.
(15) Complainant Pooran Singh deposed in cross- examination that he is a farmer and is having agricultural land in village Dinarpur about 3.50 bighas and on the date of incident in the day time, he had gone to Dinarpur for his agricultural work but had returned to Gwalior in the evening and from 05:00 PM, he was present at STD shop of his brother Rajpal. In para 9, complainant deposed that scene of occurrence was having distance of only 150 feet from their shop, but the Investigator has recorded this distance as 150 meter. When Rajpal was present at his shop at 10:30 PM, then presence of complainant is challenged by the learned counsel for the appellants, as in the day time, he had gone to village Dinarpur for his agricultural work. Complainant deposed in para 11 Cr.A. No. 413/2007 & 743/2007 15 that about 15 crimes were registered against his brother Rajpal at Police Station Bahodapur and Police Station Gwalior. He admitted in para 16 that different houses of each appellant are situated nearer to the scene of occurrence and at some distance, there were houses of absconding accused persons Bhagwan and Badshah Kachhi.
(16) Complainant has mentioned only presence of himself, Suresh Singh and Raju at the scene of occurrence, whereas his cousin brother Suresh Singh (PW-3) deposed in para 3 that when he reached on the spot, there six other persons unknown to him were also present. Suresh Singh deposed in para 6 that deceased was son of his real uncle. He also deposed that after complainant, he had reached to Hazeera police outpost but he did not enter into Hazeera Chowki at that time. Suresh Singh (PW-3) clearly deposed in para 8 that on the date of incident, he himself not intimated his family members that he had seen the incident and Bhagwan and Badshah were also included in the culprits. In para 10, he deposed that at the time of incident, accused persons Rajendra, Badshah and Bhagwan were scuffling with Rajpal. He deposed in para 15 that distance of his shop from Rajpal's shop is about 200-250 pace.
(17) Another cousin brother of the deceased, Dharmveer Singh (PW-7) deposed that on the date of incident at about 09:30 PM, he was returning from his in-law's house situated at Gol Pada towards his house and in the way, in front the house of Mohar Singh Sikarwar, he heard the sound of abusing then he proceeded towards the spot and saw that his cousin brother Rajpal was being scuffled by Bhagwan, Badshah and Rajendra and at the same time Balwant fired on Rajpal and at the same 12 Cr.A. No. 413/2007 & 743/2007 time, complainant Pooran, Raju Sikarwar, Suresh and some residents of the same mohalla were also present. He deposed in cross-examination that his father and deceased father are real brothers, but after seeing the incident, he reached to his house to inform family members and thereafter went to the hospital. Dharmveer deposed in cross-examination (para-2) that alleged eyewitness Raju Sikarwar, who was not examined before the trial Court, is a friend of deceased. He clearly deposed in para 2 that at that time, absconding accused persons Badshah Kachhi and Bhagwan Kachhi are his neighbours and he himself, Raju Sikarwar and complainant Pooran, all were well acquainted with Badshah and Bhagwan. He clearly deposed in para 3 that after the incident, he reached at about 10:00 PM to Government J.A. Hospital, Gwalior, where Rajpal was admitted. He deposed in para 4 that in the midnight on the date of incident at 02:00 hours, he gave his police statement as eyewitness. In para 8, he deposed that though he was having a bike but on the date of incident, he was on foot and returning from his in-laws house. He deposed in para 13 that his house is about half kilometer away from the scene of occurrence. In para 15, he deposed that he is acquainted with appellant Rajendra only from the date of incident. (18) Dharmveer's name was not mentioned by the complainant in his FIR. Complainant Pooran Singh (PW-1) and Suresh Singh (PW-3) have not deposed about Dharmveer's presence on the spot at the time of incident. It is significant to mention here that Dharmveer had clearly deposed that incident had occurred at 09:30 PM and his evidence on this point has not been challenged by the prosecution.
(19) In the light of citation of Kishan Vs. State of M.P 13 Cr.A. No. 413/2007 & 743/2007 reported in 1995 JLJ 353 above-mentioned unchallenged evidence of Dharmveer is binding on the prosecution and, hence, the timing of the incident becomes much doubtful looking to his evidence. His conduct of returning to his house after seeing the incident also does not appear to be natural, being a near relative of the complainant and deceased. (20) The names of absconding accused persons at that time Bhagwan and Badshah are missing in the alleged FIR lodged by the complainant Pooran Singh, whereas Dharmveer Singh has clearly deposed that his cousin brother complainant Pooran Singh was also well acquainted with Badshah and Bhagwan. On this point also, the evidence of Dharmveer has not been challenged by the prosecution, hence, non-mentioning of the names of Badshah and Bhagwan in the FIR clearly makes doubtful the presence of complainant Pooran Singh and FIR lodged by the complainant Pooran Singh. Pooran Singh clearly deposed in para 5 that he did not know the appellant Rajendra. Complainant deposed in para 10 that at the time of incident, he could not see identifying features of two unknown companions of Balwant and Rajendra and clearly deposed that prior to the incident, he was not acquainted with the persons named as Bhagwan Kachhi and Badshah Kachhi. His evidence on this point is clearly falsified by his cousin brother Dharmveer Singh (PW-7). He deposed in para 12 that till the date of recording of his deposition before the trial Court, i.e., 06.07.2005, Suresh Singh (PW-3) and Raju Sikarwar have not intimated him that two unknown persons, who were present on the spot, were Bhagwan and Badshah Kachhi, but in next breath, he admits that just after 15-20 days, Suresh and Raju had intimated him that besides present appellants, Bhagwan 14 Cr.A. No. 413/2007 & 743/2007 and Badshah Kachhi were also involved in the incident. It is clear that on this point, complainant was giving twisting and changing evidence, making his presence on the scene of occurrence totally doubtful.
(21) According to unchallenged evidence of deceased's cousin brother Dharmveer Singh (PW-1), incident had occurred about 09:30 PM. It is general practice that if an injured person is brought to any government hospital then firstly primary aid is given to him and treating doctor records his MLC. In the present case, according to evidence of Dr. Roopesh Khatri (PW-12) and his signed written intimation, Rajpal was admitted in the hospital at 11:30 PM and expired at 12:30 AM in J.A. Hospital, Gwalior but Rajpal's MLC report recorded in J.A. Hospital was not produced with the charge-sheet. It is not explained that who gave primary aid to the injured Rajpal and got his wound stitched. As Dr. Vikram Singh Tomar (PW-5) who conducted autopsy found stitched wound on the head of the deceased. Looking to the ambiguity about the timing of the incident, this possibility could not be ruled out that before reaching to the J.A. Hospital, Gwalior and police outpost Hazeera, injured Rajpal was taken to any private hospital for treatment, as it is established by evidence of the complainant and Investigator that deceased was a history-sheeter criminal. In all these facts and circumstances, it was not safe to rely on mutually contradictory evidence given by near relatives of the complainant and deceased, whereas according to evidence of Suresh Singh (PW-3), some independent persons and neighbors were also present. In absence of MLC report of injured and absence of names of two previously absconding accused persons Bhagwan and Badshah totally makes the 15 Cr.A. No. 413/2007 & 743/2007 evidence of real brother and cousin brothers of the deceased totally doubtful regarding witnessing the incident by them. (22) Investigator R.K. Vajpai (PW-17) clearly deposed in para 8 that when he reached on the spot in concerned locality (spot) there was dark and even street light was not available. He deposed in para 15 that alleged eyewitnesses have not stated in their police statements that in which light, they had seen the incident. In para 16, R.K. Vajpai clearly admits that the motive of the murder of Rajpal by appellants was not clear even after investigation. Witness Guddu Ratnakar (PW-15) had clearly deposed in para 5 that electricity was not available in the concerned locality from 07:00 PM till 12:00 AM on the date of incident and in the night there was totally dark on the spot. It is significant to mention here that Guddu Ratnakar (PW-15) was also resident of same locality Rangiyana Mohalla Gaushpura, Gwalior, where incident had occurred. His evidence is even supported by Investigator on this point. There are so many material contradictions, inconsistencies and exaggerations in evidence of complainant Pooran Singh (PW-1), Suresh Singh (PW-3) and Dharmveer Singh (PW-7).
(23) It would be significant to mention here that the alleged eyewitness Dharmveer Singh (PW-7) is a panch- witness of inquest memo Ex. P-6, which was prepared in the morning of 30.10.2004, but name of accused persons is not mentioned in the inquest memo. Guddu Ratnakar (PW-15) has also deposed that on the date of incident at 10:00 PM, when he was at his home, he heard the sound of firing, then he came out from his house and saw that there was a scuffle between Balwant and Arjun and at the same time Bhagwan and Badshah were also present and they were beating Arjun after 16 Cr.A. No. 413/2007 & 743/2007 abusing him and Bhagwan had fired on Rajpal, which caused injury on Rajpal's head. Guddu Ratnakar (PW-15) was declared hostile by the prosecution but according to his police statement (Ex. P-10) also, he was present in his house at the time of incident and after incident, he had heard from other persons about the incident. Guddu Ratnakar (PW-15) has also proved his signature on the spot map Ex. P-2.
(24) In relation to circumstantial evidence regarding seizure of country made pistol and empty cartridge, from appellant Balwant evidence is of witnesses, Investigator R.K. Vajpai (PW-17) and panch-witness Kishan Singh (PW-16) and Dharmveer Singh (PW-7) is on record. Dharmveer Singh (PW-
7) has clearly deposed that Kishan Singh is his brother-in-law (sala) who is also a panch-witness to Ex. P-7 and P-8. (25) Investigator R.K. Vajpai (PW-17) deposed that during investigation on 04.11.2004, he had arrested Balwant vide arrest memo Ex. P-7 and at that time, Balwant was having a mouser katta (country made pistol) tucked in his waist and that country made pistol and fired bras cartridges were also seized by him vide seizure memo Ex. P-8A. Investigator R.K. Vajpai (PW-17) clearly deposed in para 12 and 13 that Dharmveer Singh (PW-7) was a witness of inquest memo Ex. P-6 but at that time, Dharmveer Singh had not intimated him that he has witnessed the incident but Investigation Officer clearly deposed that on the same day, i.e., 30.10.2004 in the evening at 05:00 PM for the first time, Dharmveer gave intimation regarding his being eyewitness, then he recorded his police statement. All these facts clearly indicate that the evidence of Dharmveer (PW-7) as eyewitness is destroying the veracity of the evidence of Pooran Singh (PW-1) and Suresh 17 Cr.A. No. 413/2007 & 743/2007 (PW-3) and it was totally unsafe to rely on such evidence. (26) Dharmveer Singh (PW-7) deposed in para 11 that on 04.11.2004, when he was returning from Transport Nagar to his house at about 06:00 PM, on the way he saw that police officials had arrested Balwant, then on asking of police official, he signed on two memos prepared by police officials. In para 12 he deposed that his brother-in-law, Kishan Singh also signed on Ex. P-7 and P-8. Dharmveer Singh admitted in para 11 that it was only co-incidence that on the date of incident, he saw the incident and it was also a co-incidence that on 04.11.2004 Balwant was seen by him with police personnel. In para 12, he denied the suggestions of the defence that he had signed on Ex. P-7 and P-8 at Police Station Gwalior, whereas Kishan Singh deposed in para 4 that he had signed on seizure memo Ex. P-8A in the police station. Dharmveer Singh (PW-7) and Kishan Singh (PW-16) are also witnesses of Safina form Ex. P- 5 and inquest memo Ex. P-6. It is clear that Investigator R.K. Vajpai (PW-17) had made an alleged eyewitness Dharmveer Singh (PW-7) and his brother-in-law Kishan Singh, panch- witnesses to the alleged recovery, whereas both of these panch- witnesses had signed on safina form and inquest memo on 30.10.2004. Such procedure adopted by the Investigator is highly regrettable and indicates that the investigation was unfair and partial. Why independent witnesses were not called at the time of alleged recovery and cousin brother of the deceased Dharmveer Singh and his brother-in-law Kishan Singh were made panch-witnesses of the alleged recovery, is unexplained by the Investigator and prosecution.
(27) Some important facts also emerge from the documents arrest memo and inquest memo. R.K. Vajpai in para 18 Cr.A. No. 413/2007 & 743/2007 8 of printed arrest memo by hand written portion indicated that Balwant was arrested on 04.11.2004 at 06:10 PM at Police Station Gwalior, whereas in seizure memo Ex. P-8A in printed column No. 4 by written portion, the date and timing of the seizure are mentioned as 04.11.2004 at about 06:15 PM but in next column 4(d) in hand written portion, the place of recovery is shown as "Bade Peer Ke Pas, Jagnapura" from the body of the accused Balwant. In last printed column of seizure memo below his signature, Investigator has also written the place of recovery as "Bade Peer Ke Pas, Jagnapura". When according to Ex. P-7(a) Balwant was arrested at 18:10 hours in the police station, how five minutes later, country made pistol could be recovered at "Bade Peer Ke Pas, Jagnapura". All these infirmities clearly indicate the carelessness of the Investigator and makes the investigation unfair and prejudiced. (28) Similarly in printed column No. 13 of seizure memo Ex. P-8A below the printed words "Namuna Seal" (impression of seal), no any impression of any seal is affixed by the Investigator, which clearly indicates that the seized country made pistol and fired cartridge were not sealed in accordance with the rules, whereas in printed column No. 12, it is printed that below mentioned property has been packed and sealed. Absence of any mark or impression of used seal on the seizure memo itself makes the alleged recovery totally doubtful and in such circumstances, the possibility of tempering with the seized articles in future could not be ruled out. Though according to the prosecution's case seized pistol and fired cartridge were sent to Police Line, Gwalior for examination by above-mentioned Constable-cum-Arms Moharir Lal Singh (PW-18). According to seizure memo Ex. P-8A, the seized pistol was having double 19 Cr.A. No. 413/2007 & 743/2007 (two) triggers, whereas Lal Singh (PW-18) has clearly deposed (para 2) that the pistol sent to him for examination was having a single trigger. Therefore, it is clear that seized pistol was not sent to him for examination. But it is clear from the charge- sheet that the recovered pistol and fired cartridge were not sent to any ballistic expert or any forensic laboratory. There is no any explanation on this point by the Investigator or Prosecution. Hence, the circumstantial evidence regarding seizure of pistol from appellant Balwant was totally doubtful. (29) We are of the considered opinion that the trial Court totally overlooked all these materials facts which are prima facie appearing from the record and evidence of the relating witnesses. In view of these mutually contradictory evidence of alleged eyewitnesses and faulty investigation, it is clear that no any charged offence was proved against any of the appellant. Hence, each appeal separately filed by each appellant is worthy of acceptance.
(30) Consequently, both the appeals are allowed and the conviction and sentence recorded by the trial Court against appellant Rajendra in relation to offence punishable under Section 302/34 of IPC is set aside and similarly the conviction and sentence recorded by the trial Court against the appellant Balwant in relation to offence punishable under Section 302/34 of IPC and Section 25(1-B)(a) and Section 27(1) of Arms Act is also set aside and each appellant is acquitted from the above- mentioned charges framed against him.
(31) Appellant Balwant is serving his sentence in the concerned jail. Appellant Balwant be intimated with the result of his appeal through the concerned Jail Superintendent and appellant Balwant be released forthwith, if he is not required in 20 Cr.A. No. 413/2007 & 743/2007 any other crime. Appellant Rajendra is bailed out after suspension of his jail sentence. His bail bonds are discharged. (32) Before we part with these appeals, we would like to make it clear that the findings recorded by us shall govern the appeals which we have heard and disposed of and shall not be taken into consideration in a trial, if any, against the absconding accused persons and trial Court shall reach its own conclusion on the evidence led before it, without being influenced by the findings recorded in this judgment.
(33) With copy of the judgment, the record of the trial Court be immediately sent back.
(Ashok Kumar Joshi) (Vivek Agarwal)
Judge Judge
27/11/2017 27/11/2017
Abhi
ABHISHEK CHATURVEDI
2017.11.28 15:10:52
+05'30'