Madhya Pradesh High Court
Shishupal Singh vs State Of M.P. on 4 July, 2018
Bench: Sanjay Yadav, Ashok Kumar Joshi
1
Cr.A. Nos. 215/2000 & Cr.A.223/2000
HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR
DIVISION BENCH
Hon'ble Mr. Justice Sanjay Yadav.
Hon'ble Mr. Justice Ashok Kumar Joshi.
Criminal Appeal No.215/2000
1. Shishupal Singh S/o Dulare Singh Tomar
2. Dulare Singh S/o Budh Singh Tomar
3. Suryapratap Singh alias Lalsingh S/o Dulare Singh
Appellants
Versus
State of Madhya Pradesh, through Police
Station Kotwali Dehat Bhind District Bhind (M.P.)
Respondent
Criminal Appeal No.223/2000
Abhilakh Singh S/o Dulare Singh Appellant
Versus
State of Madhya Pradesh, through
Police Station Kotwali Dehat Bhind
District Bhind (M.P.) Respondent
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For appellants :- Shri R.K.Sharma, learned Senior counsel with
Madhukar Kulshreshtha and Shri V.K.Agrawal,
learned counsel.
For respondent :- Shri Prakhar Dhengula, learned Public
Prosecutor.
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JUDGMENT
(Pronounced on the 4th day of July, 2018) Per Ashok Kumar Joshi, J.-
By this judgment being passed in Criminal Appeal 215/2000, Criminal Appeal 223/2000 is also being decided as both these appeals filed against the judgment 2 Cr.A. Nos. 215/2000 & Cr.A.223/2000 dated 07.03.2000 passed by Fourth Additional Sessions Judge, Bhind in S.T. No.268/1994 whereby each appellants' following conviction and sentence has been passed:-
Appellants Section Imprisonment Fine
of Cr.A.
215/2000
Shishupal 302/149 Life 500/-
Singh of IPC Imprisonment
324/149 1 Year's RI 500/-
of IPC
148 of IPC 1 Year's RI 500/-
Dulare 302 of IPC Life 500/-
Singh Imprisonment
324/149 1 Year's RI 500/-
of IPC
323 of IPC 6 Months RI 500/-
147 of IPC 6 Months RI 500/-
Suryapratap 302/149 Life 500/-
Singh of IPC Imprisonment
324/149 1 Year's RI 500/-
of IPC
323 of IPC 6 Months RI 500/-
147 of IPC 6 Months RI 500/-
Appellant of Section Imprisonment Fine
Cr.A.
223/2000
Abhilakh 302/149 Life 500/-
Singh of IPC Imprisonment
324/149 1 Year's RI 500/-
of IPC
148 of IPC 1 Year's RI 500/-
2- It would be significant to mention here that
son of Dulare Singh namely Raju is still absconding and his another son Hanumant has been acquitted by the trial Court.
3Cr.A. Nos. 215/2000 & Cr.A.223/2000 3- Undisputedly, appellants Shisupal, Suryapratap Singh alias Lalsingh and Abhilakh Singh are sons of appellant no.2-Dulare Singh of Criminal Appeal 215/2000.
4- Prosecution case in brief is that in the village Roop Sahay Ka Pura in front house of complainant- Mathura Singh (PW-4) his goda (used for keeping the cattle) is situated, which was having a boundary wall and against that wall, on opposite side of the way, house of appellant no.2-Dulare Singh is situated and his sons started construction of a wall opposite to the above- mentioned wall of the complainant after encroaching on some portion of the public way situated in between Goda of complainant and appellants' house. On the date of incident i.e. 23.05.1994 in the morning at 07:00hours complainant-Mathura Singh went to construction place and objected to raising of wall encroaching public way as after raising wall at that place, bullock cart and tractors would not be able to pass through the way. On this count, Dulare and Suryapratap by pieces of bricks and Abhilakh Singh of Criminal Appeal 223/2000 by his single barrel 12 bore gun and Raju by his country made pistol, Shishupal by his country made 12 bore pistol and Hanumant by his farsa assaulted on complainant- Mathura Singh, hence, complainant ran away and reached in front his house. Dulare and Suryapratap started pelting pieces of bricks and Abhilakh Singh, Raju and Shishupal started firing from their firearms after climbing on the terrace of their house. Hanumant Singh 4 Cr.A. Nos. 215/2000 & Cr.A.223/2000 inflicted farsa injury on right leg of complainant which caused injury thereafter, Hanumant also climbed on terrace. The pieces of bricks pelted by Lala alias Suryapratap and Dulare caused injury on left hand and other organs of the complainant.
5- Abhilakh Singh fired a shot from his 12 bore gun, whose pellets caused injuries to Shivram (PW-12) on his right side of chest and calf of left leg. Abhilakh Singh and Raju fired shots by their firearms, whose pellets caused injuries to the wife of complainant's nephew, Mithlesh over right side of her chest, her both legs and nose, as a result, Mithlesh died and fell down on the spot. Abhilakh Singh by his gun, Raju and Shishupal by their firearms fired gunshots, whose pellets caused injuries to child witness-Chandraprabha (PW-9), Guddi (PW-7) and complainant's pet dog, who also died on the spot after receiving pellet injuries. Tahar Singh (PW-13), Jagat Singh, Charan Singh (PW-11) and some other persons have also seen the incident. Complainant's nephew Ranjeet Singh (PW-20) also received pellet injury over his right ear. Complainant-Mathura Singh lodged FIR (Ex.P-6), which was inscribed by Town Inspector R.S.Raghuvanshi (PW-18) at 08:00hours at Police Station Dehat Bhind.
6- R.S.Raghuvanshi (PW-18) reached at spot on same day and issued safina form (Ex.P-7) and in presence of panch-witnesses after inspecting the dead body of Mithlesh prepared inquest memo (Ex.P-8) and sent dead body for postmortem to District Hospital, 5 Cr.A. Nos. 215/2000 & Cr.A.223/2000 Bhind. On same day, R.S.Raghuvanshi prepared a spot map (Ex.P-9) and seized 25 pieces of bricks (Gumme) vide seizure memo (Ex. P-10) and an empty cartridge was also seized vide seizure memo (Ex. P-21) and injured Mathura Singh, Chandraprabha and Shviram were also sent for medical examination.
7- At District Hospital Bhind on 23.05.1994 Dr. A.K.Saxena (PW-2) medically examined the injured Shivram (PW-12), child witness Chandraprabha (PW-9) and Guddi (PW-7) and recorded MLC Ex.P-3. P-4, P-5 respectively and advised for X-ray examination for each of the above-mentioned injured.
8- On 23.05.1994 at same hospital Dr. O.P.Kastwar medically examined complainant-Mathura Singh, Ranjeet (PW-20) and recorded MLC reports Ex.P- 11 and P-12 respectively.
9- On 23.05.1994 at 02:30 hours a panel of doctors namley Dr. O.P.Kastwar (PW-5), Dr. A.K.Saxena and lady doctor Dr. S.Bhatnagar started postmortem of about 32 years old Mithlesh, wife of Rajbhan Singh (PW-
13) and the postmortem report (Ex.P-13) was recorded in handwriting of Dr. O.P.Kastwar and signed by each member of panel of doctors.
10- On 23.05.1994 at District Hospital Bhind injured persons Shivram, Guddi, Chandraprabha and Mathura Singh were radiologically examined and Dr. R.S.Swarnkar (PW-19) recorded their X-ray reports Ex.P- 16, P-28, P-31 and P-33 respectively and in radiological examination, radio-opaque shadows of metallic density 6 Cr.A. Nos. 215/2000 & Cr.A.223/2000 (pallets) were found in bodies of Shivram, Chnadraprabha and Guddi and fifth metacarpal bone of Mathura Singh's right hand was found fractured.
11- During investigation, accused persons Abhilakh Singh and Raju were found absconding and panchnama in that relation was prepared by investigating officer. Other accused persons were arrested by investigating officer and on disclosure statement of (Ex.P-25) of appellant Shishupal Singh, a country made 12 bore pistol was recovered from the appellant Shishupal in presence of panch-witnesses vide seizure memo (Ex.P-17) and it was sent for examination to police line, Bhind where Police Constable Mahesh Chandra Sharma (PW-16) on 17.08.1994 examined relating pistol and found it in working condition and recorded his report (Ex.P-20). Prosecution sanction (Ex.P-16) dated 22.06.1994 of District Magistrate Bhind was obtained for prosecution of appellant Shishupal in relation to offences punishable under the Arms Act. After completing formalities of investigation and describing Abhilakh Singh and Raju as absconder, charge-sheet was filed in the Court of CJM, Bhind, who committed the arisen criminal case to Sessions Judge Bhind, who transferred the sessions trial to above-mentioned trial Court.
12- Trial Court framed charges under Sections 307, 307/149, 302/149, 148 of IPC and Section 25 and 27 of the Arms Act against the appellant-Shishupal Singh, for offences punishable under Sections 302/149, 323, 147 and 307/149 of IPC against the appellant Lala alias 7 Cr.A. Nos. 215/2000 & Cr.A.223/2000 Suraypratap, for the offences punishable under Section 302/149, 307/149, 147 and 323 of IPC against appellant Dulare Singh and for offences punishable under Sections 325, 302/149, 148, 307/149 of the IPC and Section 25 and 27 of the Arms Act against tried accused Hanumant and each of the above-mentioned accused denied the relating charges. Appellant-Abhilakh Singh of Criminal Appeal No.223/2000 joined the trial from 30.09.1996 and charges for offences punishable under Sections 148, 307, 307/149 and 302 of IPC were framed against the appellant-Abhilakh, who also abjured the guilt of above- mentioned offences before the trial Court. Twenty one prosecution witnesses were examined.
13- It was defence of the each of the tried accused that he has been falsely implicated. It was the specific defence of appellant Abhilakh Singh that on the date of incident in relation to his service he was at Jodhpur (Rajasthan) and on the date of incident i.e. 23.05.1994 at Military Hospital Jodhpur, he was examined by Lieutenant Colonel N.Rai as an outdoor patient and in relation to above-mentioned plea of alibi Abhilakh Singh examined himself as defence witness no.1 and Lieutenant Colonel N.Rai (DW-2) was also examined. It was the defence of appellant Shishupal that actually at the time of incident complainant-Mathura Singh and his family members fired shots by their firearms and in that incident, he (Shishupal) received injury and deceased- Mithlesh and other injured prosecution witnesses received firearms injuries due to firing by complainant 8 Cr.A. Nos. 215/2000 & Cr.A.223/2000 Mathura Singh and his companions and after his arrest, he was also medically examined and after getting bail, he filed a private complaint (Ex.D.9) before competent Court. Appellant-Shishupal Singh also examined himself before the trial Court under Section 315 of Cr.P.C. as defence witness no.3. The trial Court acquitted the tried accused Hanumant Singh from all the charges framed against him and trial Court acquitted each of the other tried accused from the charge of Section 307/149 of the IPC, but trial Court convicted and sentenced the present appellants as aforesaid.
14- Appearing counsel for the appellants placing reliance on some citations vehemently contended that there were material contradictions and inconsistencies in evidence of complainant-Mathura Singh (PW-4), Guddi (PW-7) Chandraprabha (PW-9), Charan Singh (PW-11) Shivram (PW-12), Tahar Singh (PW-13) and Ranjeet (PW-20), who deposed as eye-witnesses before the trial Court and all these eye-witnesses are closed relatives of the complainant, though allegedly incident occurred in early morning in the residential area of relating village, but no independent eye-witness was examined for the prosecution. It is further argued that according to evidence of all these eye-witnesses, firing was caused from terrace of the house of Dulare Singh and deceased Mithlesh received pellet injuries from shots of firearms within a range of 20 to 30 feets, but according to evidence of Dr. O.P.Kastwar and postmortem report (Ex. P-13) of deceased Mithlesh, all three firearms injuries 9 Cr.A. Nos. 215/2000 & Cr.A.223/2000 sustained by her, having blackening and Dr. O.P.Kasturwar (PW-5) deposed in cross-examination that all these injuries of deceased were received from a shot of firearm within a range of six feet only and no incised wound was found on the body of complainant Mathura Singh, hence, in relating case, evidence of alleged eye- witnesses was contradicted by medical evidence available on record and in such situation, the trial Court erred in placing reliance on such contradictory evidence of alleged eye-witness. It is also vehemently argued that what was the reason of incident, on this point complainant-Mathura Singh's evidence is not in accordance with his FIR (PW-6) as complainant deposed that in previous night, Dulare Singh and his sons had demolished a wall constructed by complainant and due to this, in next morning incident occurred whereas, according to his FIR appellants were constructing wall just before incident encroaching some part of the public path.
15- On behalf of appellant-Abhilakh Singh of Criminal Appeal No.223/2000, it has been vehemently contended that from the evidence of defence witness No.2 Lieutenant Colonel N.Rai and Medical Case Sheet (Ex. D-8) of Military Hospital, Jodhpur and his certificate (Ex. D-7) dated 13.02.1996 and from evidence of appellant-Abhilakh Singh (DW-1) it was clearly established that on the date of incident i.e. 23.05.1994, Abhilakh Singh was medically examined at Military Hospital, Jodhpur, hence, his alleged presence at village Roop Sahay Ka Pura of District Bhind (M.P.) was totally 10 Cr.A. Nos. 215/2000 & Cr.A.223/2000 impossible but the trial Court erred in disbelieving all these documents produced and proved by above- mentioned defence witnesses and rejecting the plea of alibi raised by appellant-Abhilakh Singh.
16- On the above-mentioned grounds, it is contended on behalf of appellants that both the appeals filed by different appellants be allowed and each appellant be acquitted from the above-mentioned charges.
17- Per contra, learned Public Prosecutor appearing on behalf of respondent/State argued in support of the impugned judgment and submitted that the maxim "falsus in uno falsus in omnibus" is not applicable in our country and in order to take out the grain from the chaff, the testimony of above-mentioned eye-witnesses was rightly believed by the trial Court and the learned Trial Court has rightly convicted and sentenced each of the present appellants.
18- It is clear from the evidence of Dr. O.P.Kastwar (PW-5) and his signed postmortem report (PW-13) alongwith two other doctors that on 23.05.1994 at 02:30pm at the time of starting of postmortem of deceased-Mithlesh wife of Rajbhan Singh aged about 32 years, they found following ante-mortem injuries on her dead body:-
1. Punctured wound of size 0.5x0.5cm X deep upto the cavity over right side of chest situated in interior auxiliary-fold and blackening all over this punctured wound was present.11
Cr.A. Nos. 215/2000 & Cr.A.223/2000
2. Abrasions two in number, size 0.5x0.5cm on interior surface of right knee and blackening around these wound was present.
3. Abrasion size 0.5x0.5cm over left knee and blackening was present over this injury.
19- Dr. O.P.Kastwar (PW-5) deposed in dissection of dead body, it was found that right side of thoracic cavity was filled by dark colored blood and throat and wind pipe was filled by dark colored blood and the upper lob of right lung was lacerated and blood was clotted in tissue of lung and the right side of thoracic cavity was full of dark colored blood and in opinion of doctors, who conducted autopsy, all injuries were antemortem and caused by firearms and they opined that reason of death was shock arisen due to internal hammerage because of injury to vital organ i.e. right lung and deceased had died within 18 hours from starting of postmortem.
20- Dr. O.P.Kastwar (PW-5) opined that all three external injuries found on dead body of the deceased were having blackening, hence, these firearm injuries were appearing to be caused to her by firearm shots within a range of 6 feet.
21- From the evidence of Dr. O.P.Kastwar (PW-5) and MLC (Ex.P-11) recorded by him, it is clear that on the same day in morning at District Hospital Bhind in medical examination of complainant-Mathura Singh (PW-
4), he found following three injuries on Mathura Singh:-
1. Diffuse swelling over medial side of dorsun of right 12 Cr.A. Nos. 215/2000 & Cr.A.223/2000 hand, with tenderness and movements were restricted and for this injury radiological examination were advised.
2. Diffuse swelling size 6x3cm over lateral upper 1/3 part of right thigh.
3. Abrasions, three in number, each of size 1/2x1/3cm on interior aspect of right ankle.
22- Dr. O.P.Kastwar, (PW-5) deposed that all these injuries of complainant-Mathura Singh were caused by hard and blunt objects within 12 hours and his above- mentioned injuries no. 2 and 3 were of simple in nature and for injury no.1, X-ray examination was advised by him. It is clear from the evidence of Dr.R.S.Swarnkar (PW-19) and his X-Ray report (Ex. P-33) with X-ray Plate (Ex.P-34) that on 02.06.1994 in radiological examination of complainant, fracture of fifth metacarpal of his right hand was found, hence, it was proved that grievous injury in right hand was caused to Mathura Singh on the date of incident, but as no incised wound was found on the body of Mathura Singh caused by any sharp cutting object, complainant's evidence has been criticized by learned counsel for the appellant.
23- It is clear from the evidence of Dr. O.P.Kastwar (PW-5) and his recorded MLC (Ex. P-12) that on 23.05.1994 in medical examination of Ranjeet (PW-20), he found a lacerated wound of size 1/2x1/3cm on interior aspect of pinna of right ear and fresh blood was oozing out, but this wound was having no charring or tattooing and he advised for radiological examination of it.
13Cr.A. Nos. 215/2000 & Cr.A.223/2000 24- It is clear from the evidence of Dr.A.K.Saxena (PW-2) and his recorded MLC (Ex. P-3) that he found a punctured wound on front side of chest on fold of right underarm of injured Shivram and he was complaining tenderness in front side of left leg and he advised for X- ray examination of Shivram's first injury. It is clear from the evidence of Dr.R.S.Swarnkar (PW-19) and his X-ray report (Ex. P-26) and relating X-ray plate (Ex. P-27) that a radio-opaque shadow of high metallic density was seen nearer to right underarm, therefore, it was proved that injured Shivram (PW-12) received a firearm injury on the date of incident.
25- It is also clear from the evidence of Dr.A.K.Saxena and his MLC report (Ex. P-4) that on the date of incident, he found following injuries in medical examination of child witness Chandraprabha (PW-9):-
1. Punctured wound over right iliac reason posteriorly below iliac crest size 1/2x1/2cm.
2. Blackening of skin of an area of 0.25 x 0.25 cm over right gluteal region 2" lateral to midline.
3. Punctured wound over right inguinal region on lateral aspect, one inch below from interior iliac spine size 0.5x0.5cm. having blackening of skin around the wound.
4. Two punctured wounds in medial aspect of left knee size 0.5x0.5cm blackening of skin 1" apart from each other.
26- It is clear from the evidence Dr.R.S.Swarnkar 14 Cr.A. Nos. 215/2000 & Cr.A.223/2000 and his X-ray report (Ex. P-31) with X-ray plate (Ex. P-
32) that in X-ray examination of child-witness Chandraprabha two radio-opaque shadows of metallic density were found in right glutial region and separately two radio-opaque shadows of metallic density were found at left knee joint therefore, it is clear that child witness Chandraprabha (PW-9) received firearms injuries.
27- From the evidence of Dr.A.K.Saxena (PW-2) and his MLC (Ex.P-5), it is clear that on the date of incident he found following injuries on prosecution witness Guddi Bai (PW-7) and advised for X-ray examination of all these injuries:-
1. Punctured wound on right thigh about 2 inch above from knee of size 1/2x1/2 cm.
2. Punctured wound on right thigh, about 1 inch above to the above-mentioned injury of size 1/2x1/2 cm..
3. Punctured wound over right thigh about ½ above from the above injury no.2 of size 1/2x1/2 cm and he advised for radio-logical examination as of these injuries were appearing to be caused by pallets.
28- It is clear from the evidence of Dr.R.S.Swarnkar (PW-19) and his X-ray report (Ex.28) and plates (Ex.P-29 and P-30) that a radio-opaque shadow of high metallic density was found at lower 1/3 part of right thigh, therefore, it is clear that injured witness Guddi (PW-7) also received firearm injury on the date of incident.
29- Before the trial court, Mathura Singh (PW-4), 15 Cr.A. Nos. 215/2000 & Cr.A.223/2000 Guddi (PW-7), child-witness Chandraprabha (PW-9) Charan Singh (PW-11) and Shivram (PW-12), who were injured witnesses and Tahar Singh (PW-13) deposed as eye-witnesses. Alleged injured witness Ranjeet Singh (PW-20) deposed that he was acquainted with deceased- Mithlesh, wife of Rajbhan and on the date of incident he heard that Mithlesh died due to receiving firearm injury and in the morning 8 am, persons of the village were going towards scene of occurrence and he also heard that some other persons were also injured and he also deposed that when he reached on the spot, then in crowd, he received an injury over her ear and Mithlesh dead body was lying at a distance of 15 to 20 paces from the house of complainant Mathura Singh. Ranjeet Singh also deposed that in his presence Mithlesh's dead body was inspected by Police and he signed on safina form (Ex. P-7) and inquest memo (Ex. P-8) and spot map (Ex.P-9) prepared by police and seizure memo (Ex.P-21) is also having his signature and he saw an empty cartridge in hands of police officials.
30- Complainant-Mathura Singh (PW-4) deposed that some time prior to the incident, he had constructed a wall of bricks in front the house of appellants and in intervening night before the date of incident, his wall was broken by appellants and in next morning at 6 am when he went to object over it with the appellants, then appellants started assault over him by pieces of bricks or stones and acquitted accused Hanumant Singh inflicted a farsa injury over right his right leg and Dulare Singh and 16 Cr.A. Nos. 215/2000 & Cr.A.223/2000 Surayapratap also caused injuries on his right arm by bricks and thereafter, appellant Abhilakh Singh and Shishupal Singh and absconding accused Raju climbed on the terrace of their house and Abhilakh Singh was having a 12 bore gun and Shishupal and Raju each was having a country made pistol and all these three accused persons having separate firearm also fired shot over him and at that time Shivram (PW-12) came to save him, therefore, hence Shivram received injuries of pellets and his nephew's wife Mithlesh also came to save him, then Mithlesh also received pellet injuries in her right underarm, nose and leg and his pet dog and Mithlesh immediately died due to pellet injuries caused by above- mentioned three accused persons having firearms. Complainant also deposed that when his family members Guddi (PW-7) and his grand-daughter Chandraprabha (PW-9) were trying to pull him to save him, both of them received pellets injuries and Ranjeet, who came on spot at that time also received pellet injury over his right ear. Complainant deposed that at the time of incident Tahar Singh (PW-13), Charan Singh and Naval Singh have also came on scene of occurrence and after incident he was taken by Shivram on his motorcycle to police station, Dehat Bhind, where he lodged FIR (Ex.P-6) and T.I. RS.Raghuvanshi (PW-18) deposed that he scribed above- mentioned FIR (Ex.P-6). According to FIR, incident occurred at 07:00 AM and FIR was lodged at 08:00am.
31- It is true that there is contradiction between Mathura Singh (PW-4) evidence and his FIR (Ex. P-6) on 17 Cr.A. Nos. 215/2000 & Cr.A.223/2000 the point that whether at the time of incident appellants were constructing any wall or not but complainants closed relatives Shivram (PW-12) and Tahar Singh (PW-
13) have clearly deposed in their examination-in-chief that before the incident appellants were constructing a wall encroaching over some portion of public way and, therefore, complainant Mathura Singh was objecting to it. Even from the evidence given by appellant Shishupal Singh as defence witness no.3 before trial Court and from the private complaint (Ex.D-9) filed by Shishupal Singh as complainant before Court of CJM Bhind, it is clear that on the date of incident, at 7am Shishupal Singh was on public way in front of his house and he was constructing a wall and digging a hole for water, then complainant Mathura Singh came there. In view of this evidence given by the appellant Shishupal Singh (DW-3) himself and his complaint that appellants were constructing a wall in front of their house at the time of incident and complainant Mathura Singh objected it. In such a situation, above-mentioned contradiction between Mathura Singh's evidence and his FIR (Ex.P-6) appears to be insignificant.
32- It is clear from the entire evidence of complainant Mathura Singh (PW-4) that some part of the incident occurred in front of the house of appellants, where he had gone to object the appellants, as in para- 10, complainant-Mathura Singh deposed that when he received farsa injury and when he received injuries caused by pelted stones and bricks, then he was alone 18 Cr.A. Nos. 215/2000 & Cr.A.223/2000 and on his crying Shivram (PW-12) and the daughter-in- law of his family came and at that time Shivram was also standing on the way, wherein his daughter-in-law was also standing at the threshold of complainant's house. Complainant-Mathura Singh deposed in para-11 that when his daughter-in-law Mithlesh received firearm injury then she was standing at the door and at that time, she was about a distance of 25 hands away from the roof of the house of the appellants, wherefrom three accused persons were firing by their firearms and at that time child-witness Chandra Prabha (PW-6) and Guddi (PW-7) were about 10 hands distance ahead from Mithlesh, when both of them also received firearm injuries. Complainant Mathura Singh deposed in para-10 that till Shivram (PW-12), Guddi (PW-7), Mithlesh (deceased) and Chandra Prabha (PW-9) received pellet injuries, no any person of the village came on scene of occurrence.
33- Charan Singh (PW-11) S/o deceased Mithlesh deposed that their house is situated at 50 yards distance from the house of their grandfather complainant Mathura Singh and at 7am on the date of incident, he was collecting water with Shivram Singh, Guddi and Chandraprabha at his house, then after hearing the sound of noise, they all went in front the house of complainant, then he saw that Shishupal, Raju and Abhilakh Singh were firing from the terrace of their house towards them and with him, his mother Mithlesh, Guddi and Chandraprabha were also proceeding towards 19 Cr.A. Nos. 215/2000 & Cr.A.223/2000 the house of complainant and the pellet injury of firing made by appellant Abhilakh Singh inflicted injury on right underarm of her mother and Guddi and Chandraprabha also received pellet injuries and his uncle Shivram also received pellet injury and a bitch (female dog) also died on spot after receiving pellet injuries. The evidence of above-mentioned injured witnesses is corroborated by the medical evidence which prove that deceased Mithlesh, Guddi (PW-7) Chandraprabha (PW-9) and Shivram (PW-12) received pellet injuries in the incident. On this point even the evidence given by appellant Shishupal and averments of his private complaint (Ex.D-
9) also provide corroboration to the evidence of complainant and his family members that including deceased Mithlesh, Guddi, Chandra Prabha, Shivram also received pellet injuries in the incident. Shishupal Singh (DW-3) has deposed in para-2 that on the spot, a dog was also died after receiving pellet injuries but deposed that he did not know that deceased dog was belonging to whom. It is evidence of the defense witness Shishupal (DW-3) and his averments in his complaint (Ex.D-9) that Mathura Singh and his family members were firing on the spot and Mithlesh, Chandraprabha and Shivram received pellet injury due to firing by the complainant's family members. In private complaint (Ex.D-9) filed by the appellant Shishupal Singh (DW-3), complainant Mathura Singh, his three sons Munna Singh, Ram Lakhan Singh and Lalji alias Jag Singh and Shivram Singh (PW-12), Tahar Singh (PW-13) and Ramswaroop Singh have been shown as accused persons. Shishupal Singh (DW-3 ) 20 Cr.A. Nos. 215/2000 & Cr.A.223/2000 deposed before trial Court that on instigation by complainant Mathura Singh his son Munna Singh fired shot by a 12 bore single barrel gun over him (Appellant Shishupal) and thereby he received pellet injury in his calf in his right leg. Shishupal Singh deposed before the trial Court that he was also medical examined on 24.05.1994 at hospital and due to complaint by Mathura Singh, he was examined by medical board, but no medical report regarding appellant Shishupal Singh was produced or proved before the trial Court, therefore, it is not proved that appellant Shishupal received any pellet injury on that day.
34- It is clear from the spot map (Ex.P-9) prepared by the investigation officer R.S.Raghuvanshi (PW-18) and an another map (Ex. P-6) prepared by patwari Shivraj Singh (PW-3), it is clear that appellants' house is situated in front of Goda of the complainant Mathura Singh and in between their goda and house, public way or path is situated. If any family member of complainants' family was firing over appellant Shishupal Singh, then it was impossible that any person standing at the threshold of complainants' house could receive pellet injuries. On the other hand, the private complaint (Ex. P-9) filed by appellant Shishupal Singh (DW-3) confirms the presence of Shivram Singh (PW-12) and Tahar Singh (PW-13) at the time of incident on the scene of occurrence.
35- There is no evidence on record that any appellant including Shishupal Singh received any firearm injury at the time of incident. Shishupal Singh (DW-3) 21 Cr.A. Nos. 215/2000 & Cr.A.223/2000 deposed before trial Court that Mathura Singh was having a country made pistol, his son Munna was having a single barrel 12 bore licensee gun of Ramswaroop, Tahar Singh (PW-13) was having a stick at the time of incident and all these family members of the complainant fired from their firearms and pelted stones and thereby Mithlesh, Guddi, Shivram and Chandraprabha and a dog received pellet injuries. It is surprising that according to evidence of appellant Shishupal Singh (DW-3) four family members including Mathura Singh fired by their separate firearm, but no appellant received any firearm injury and only the family members of complainant received pellet injuries. It is clear that appellant Shishupal Singh (DW-
3)'s evidence given before the trial Court and his complaint (Ex. D-9) is full of impossible and unbelievable facts.
36- Appellant Shishupal (DW-3) deposed in para- 10 that on the date of incident i.e. 23.05.1994 he had gone to police station for lodging report but he was arrested by police on that day and released on bail after three months, but in para-11 he deposed that he was released after 6 months then he filed a private complaint (Ex-D/9), but it is clear from his typed complaint (D-9) that it is typed on 21.02.1995 hence, it is clear that private complaint was prepared about 9 months after the date of incident. It is clear from the evidence of investigating officer R.S.Raghuvanshi (PW-18) and arrest memo (Ex.P-24) of appellant Shishupal Singh prepared by him that Appellant Shishpal Singh was not arrested on 22 Cr.A. Nos. 215/2000 & Cr.A.223/2000 the date of incident, but he was arrested on 24.05.1994 at 06:10PM. Much emphasis has been given by the appellant counsel on the fact that in arrest memo P-24 of the appellant Shishupal Singh, IO recorded that at the time of arrest Shishupal Singh was having an abrasion like injury over his calf in the right leg, but in P-24, it is not mentioned that abrasion like injury was appearing to be caused by firearm or pellet injury. It is clear from the above-mentioned discussion that the evidence given by appellant Shishupal as DW-3 and the reasons deposed by him about receiving injury by complainant and his family members are afterthought and imaginary and impliedly his evidence and complaint also confirm the pellet injuries were received by deceased Mithlesh (P-4), Guddi (PW-7)Chandraprabha (PW-9) Shivram PW-12 Tahar Singh PW-13.
37- It is clear from the evidence of Veterinary Dr. S.C. Saxena (PW-14) and his postmortem report (P-18) that on the date of incident he conducted autopsy of a bitch (family dog) whose dead body was having pellet injuries. This fact appear undisputed even from the evidence of Appellant Shishupal (DW-3) hence, complainant Mathura Singh's (PW-4) evidence is substantially corroborated by his prompt FIR (P-6) and evidence of other injured witnesses Guddi, Chandraprabha, Shivram and also supported by other eye-witnesses Charan Singh and Tahar Singh.
38- Charan Singh (PW-11) deposed that
complainant Mathura Singh is his grandfather and
23
Cr.A. Nos. 215/2000 & Cr.A.223/2000
similarly Tahar Singh (PW-13) admitted that complainant Mathura Singh is his real uncle. Complainant has clearly deposed that till receiving pellet injuries by his family members, no person of the village came on scene of occurrence. The evidence of family members of the complainant and other eye-witnesses could not be disbelieved only due to their relationship with complainant. As discussed earlier presence of Shivram Singh (PW-12) and Tahar Singh (PW-13) is established even by private complaint (D-9) filed by the appellant Shishupal. Rajneet Singh has also deposed that when after incident he reached on scene of occurrence with other persons of village, he received an injury on his right ear and this fact has also been clearly and specifically mentioned in the FIR (P-6) and corroborated by medical evidence of Dr. O.P. Kashtwar (PW-5).
39- Much emphasis has been given by the learned counsel for the appellant that allegedly seized blood stained clothes of some injured persons and allegedly sized country made pistol from appellant Shishupal were not sent for examination to FSL. It is clear in the light of the cases of the Krishnegowda Vs. State of Karnataka (AIR 2017 SC 1657), Sudha Renukaiah Vs. State of A.P. (AIR 2017 SC 2124) and State of Punjab Vs. Gurmit and another, AIR 1996 SC 1393, it is clear that only due to negligence or carelessness of Investigation Officer, the evidence of reliable injured or eye-witnesses could not be discarded.
40- Similarly, much emphasis has been given on 24 Cr.A. Nos. 215/2000 & Cr.A.223/2000 the fact that injured Mathura Singh (PW-4) did not receive any incised injury caused by any Sharp cutting object, though he clearly deposed that he received farsa injury inflicted by acquitted accused Hanumant Singh. It is to be remembered that due to relating contradictions, tried accused Hanumant Singh has been acquitted by the trial Court and his acquittal has not been challenged by the prosecution by filing any appeal. But it appears significant to mention here that it was proved that complainant Mathura Singh received a grievous injury in the form of fracture of fifth metacarpal bone of right hand, but appellants were not charged under Section 325 or 325/149 of IPC by the trial Court and conviction has not been recorded under Section 325/149 of the IPC by the trial Court in reference to complainant, but it is proved from medical evidence available on record that complainant Mathura Singh (PW-4) was having in total three injuries including a grievous injury and it is clear that though complainant Mathura Singh (PW-4) did not receive any pellet injury in the incident, as it is clear from his total evidence that incident had occurred in different parts and the first part of incident had occurred in front the house of appellants when he objected the appellants in the early morning and he also received injuries from pelted stones and bricks, hence complainant's total evidence could not be discarded, as his presence is even admitted by appellant Shishupal Singh (DW-3) in his evidence given before the trial Court.
25Cr.A. Nos. 215/2000 & Cr.A.223/2000 41- Much emphasis has been given by the learned counsel for the appellants on the fact that according to medical evidence and clear evidence given by Dr. O.P.Kastwar (PW-5) all the three pellet injuries found on the dead body of deceased Mithlesh were having blackening around it, and according to evidence of Dr.Kastwar (PW-5) Mithlesh received these pellets injuries from firing by the firearms within a range of 6 feet, whereas according to evidence of complainant- Mathura Singh (PW-4) and other eye-witnesses, Shivram (PW-12), Mithlesh, Chandraprabha and Guddi received pellets injuries at the time when they were about 20 feet or more away from the firearms. At the time of incident Chandraprabha was playing beneath the Neem tree situated nearer to the house of complainant-Mathura Singh (grand-father) and Chandraprabha (PW-9) stated in para-4 that when her mother (Mithlesh) received pellet injury then her mother was nearer to her as she was playing in front the door of complainant. Neem tree has been clearly mentioned in spot map (P-9) prepared by Investigating Officer. Charan Singh (PW-11) S/o deceased-Mithlesh has clearly deposed that prior to the incident he was collecting water at his house with his mother Mithlesh and others and after hearing the noise, he with her mother Mithlesh and other family members reached nearer to the house of their grand-father complainant, then he saw that appellants Abhilakh, absconding accused Raju and present appellant Shishupal were firing from the roof of their house towards them and Abhilakh Singh was having a gun and 26 Cr.A. Nos. 215/2000 & Cr.A.223/2000 Raju and Shishupal each was having a separate country made pistol. It was found proved by the trial Court that other family members of the complainant, namely Guddi (PW-7) Chandraprabha (PW-9) and Shivram (PW-12) also received pellet injuries in the same incident and according to medical evidence available on record the pellet injuries received by these other witnesses Chandraprabha (PW-9) Charan Singh (PW-11) and Shivram (PW-12) were not having blackening, hence, it is clear that these witnesses received pellet injuries, when firearms were not comparatively nearer to them.
42- It is well established that the medical evidence is only an opinion evidence and it is undisputed even by the appellant Shishupal that in same incident Smt. Mithlesh (deceased) received pellet injuries with these other injured witnesses Chandraprabha (PW-9), Guddi (PW-7) and Shivram (PW-12). In such situation only due to medical evidence regarding presence of blackening around the pellet injuries found on the dead body of Mithlesh, the evidence of these prosecution witnesses, who deposed as eye-witnesses, could not be discarded or disbelieved.
43- Appellant Shishupal has been acquitted by the trial Court for the offence punishable under Sections 25 and 27 of the Arms Act and his above-mentioned partial acquittal has even not been challenged by the prosecution, therefore, it is not necessary to discuss the relating evidence regarding seizure of country made pistol during investigation from the appellant Shishupal 27 Cr.A. Nos. 215/2000 & Cr.A.223/2000 on the basis of his alleged disclosure statement.
44- We are of the considered opinion that the evidence of above-mentioned eye-witnesses Mathura Singh (PW-4), Guddi (PW-7), Chandraprabha (PW-9), Charan Singh (PW-11) Shivram (PW-12) and Tahar Singh (PW-13) were appearing reliable and trustworthy and trial Court did not err in placing reliance on it.
45- In reference to appellant Abhilakh Singh of Criminal Appeal No.223/2000, it has been vehemently argued that in relation to his plea of alibi, appellant Abhilakh Singh examined himself as DW-1 before the trial Court and deposed that he has been retired from military service on 28.02.1995 and on the date of incident i.e. 23.05.1994 as an out door patient, he was examined in medical hospital Jodhpur and on the date of incident, he was not at his native village Roop Sahay Ka Pura and he obtained certificate (Ex.D-7) dated 13.02.1996 (which is bearing his passport size photograph) from Lieutenant Colonel N.Rai (Surgical Specialist) and this certificate (D-7) was filed by him before this Court in relation to his pending anticipatory bail application and on this point his evidence is corroborated by Lieutenant Colonel N.Rai (DW-2) who at the time of recording of his evidence on 14.12.1998 had proved the original medical case sheet (Ex.D-8) brought from the military hospital Jodhpur whereon, date 23.05.1994 is written in handwriting of the hospital employee at the top.
46- Lieutenant Colonel N.Rai (DW-2) deposed that 28 Cr.A. Nos. 215/2000 & Cr.A.223/2000 on 23.05.1994 at Military Hospital Jodhpur, he was working as surgical specialist and on that day as an outdoor patient. Hawaldar-Abhilakh Singh was (appellant) examined by him, who was having severe pain in both of the heels of his legs and he was feeling difficulty in walking. In this relation, later on, on 13.02.1996 he has given certificate (D-7) to appellant Abhilakh. Lieutenant Colonel N.Rai deposed in cross- examination (para-5) that he could not do private practice and he has not made any entry regarding his certificate (D-9) in any register and he deposed in para-5 that Abhilakh Singh has brought a letter from the Court, then he issued certificate (D-7) dated 13.02.1996, but he admitted that there is no evidence regarding any letter brought by appellant Abhilakh Singh from Court. In para- 6 he deposed that he could not tell that whether appellant Abhilakh Singh on 23.05.1994, was on duty or on leave.
47- It is clear from the total evidence of Lieutenant Colonel N.Rai (DW-2) that on 13.02.1996, he had issued certificate (D-7) regarding the treatment given to appellant Abhilakh Singh on 23.05.1994 in Military Hospital Jodhpur, only because of a letter was brought by appellant Abhilakh Singh from Court, but surprisingly there is no evidence regarding Court's letter. Even in certificate (D-7) dated 13.02.1996, there is no reference to any Court's letter or any Court's order. It is clear from the above-mentioned facts emerge from the evidence of Lieutenant Colonel N.Rai (DW-2) that certificate (D-9) 29 Cr.A. Nos. 215/2000 & Cr.A.223/2000 was obtained in suspicious circumstances regarding any Court's letter.
48- Appellant Abhilakh Singh (DW-1) deposed in cross-examination (para-3) that in April and May,1994, he was on leave for two months, but he also deposed that during this two months' leave period, he was at Jodhpur (Rajasthan). In his cross-examination, he deposed in para-2 that he was having no knowledge that on 22.06.1994 there was a programme of Teeka in reference to marriage of his real brother-Suryapratap alias Lal Singh appellant No.3 of criminal appeal 215/2000. He also deposed in the same para that he did not know that Suryapratap's marriage was solemnized at Samanna. He also deposed in the same para that he received no intimation regarding marriage of his real brother Suryapratap. In next para no.6, appellant Abhilakh Singh (DW-1) deposed that when he came back to his native village Roop Sahay Ka Pura on 28.02.1995, then for the first time he received the information that his real brother Suryapratap's marriage has been solemnized and he was even not intimated. He has clearly admitted that in April and May, 1994 he was on leave for two months, but his evidence that during this two months period of leave, he was at his posting place Jodhpur, was not inspiring confidence and it is clear that his evidence is having various unbelievable and unnatural facts.
49- Even after his retirement, on the date 24.11.1998, when his deposition as DW-1 was recorded 30 Cr.A. Nos. 215/2000 & Cr.A.223/2000 before the trial Court, he mentioned his address of Jodhpur (Rajasthan) whereas it is clear from the record of the trial Court that on 30.09.1996 he filed an application before the trial Court and on 19.09.1996 he filed another application regarding his bail, wherein, he mentioned himself as a resident of village Roop Sahay Ka Pura (M.P.). Similarly, on 26.02.1998 a typed application of two pages was filed by accused-Abhilakh Singh for examination of N.Rai as defence witness and in this application Abhilakh Singh was shown as a resident of village Roop Sahay Ka Pura. In lower Court's record, a certified copy of the order dated 08.03.1996 passed by this Court in M.Cr.C.2269/1995 is available, from whose perusal, it is clear that before this Court for obtaining anticipatory bail only certificate (D-9) dated 13.02.1996 was filed before this Court.
50- Lieutenant Colonel N.Rai (DW-2) and appellant-Abhilakh Singh (DW-1) have deposed that on 23.05.1994 at military hospital Jodhpur, he was examined only as a outdoor patient and it is clear that in such situation O.P.D. Ticket is given to the relating patient, whereon the observation and prescribed treatment by the relating doctor is recorded. Abhilakh Singh (DW-1) deposed in para-4 that from his family members in November, 1994 he received telephonic information regarding registration of crime, relating to this case against him and his family members, but after receiving telephonic information he did not visit village Roop Sahay Ka Pura and it is clear that though in 31 Cr.A. Nos. 215/2000 & Cr.A.223/2000 November, 1994 he received telephonic information that murder case has been registered against him, his father and other brothers, he tried and obtained anticipatory bail order on 08.03.1996, but it is clear from this Court's above-mentioned order that relating OPD Ticket never seen the light of day and only above-mentioned certificate (Ex.D-3) dated 13.02.1996 was produced with anticipatory bail application filed before this Court. Lieutenant Colonel N.Rai deposed that he gave above- mentioned certificate (Ex.D-9) in reference to a letter issued by the Court, but there is no evidence regarding issuance of any letter by any Court.
51- It reveals from one of the documents, namely copy of this Court's order dated 19.01.1996, which was filed as document no.10408/2017 alongwith some other documents by the appellant Abhilakh Singh in his Criminal Appeal No.223/2000 that by a letter dated 06.01.1996 sent by commanding officer of relating military unit to Station House Officer, Police Station Dehat, Bhind, it is clear that in January, 1996 relating surgical specialist Lieutenant Colonel N.Rai was not posted at Jodhpur Hospital. Similarly it is not clear from Colonel N.Roy's certificate dated 13.02.1996 (D-9) that it was given by him after perusal of relating papers of military hospital Jodhpur or not. These facts also reveal that on 13.02.1996 certificate (D-9) was given to appellant Abhilakh Singh by Lieutenant Colonel N.Rai without perusing his medical case sheet of Military Hospital Jodhpur. All these facts make Ex.D-9 totally 32 Cr.A. Nos. 215/2000 & Cr.A.223/2000 doubtful and it also adversely affect the veracity of medical case sheet (D-8) of the appellant Abhilakh Singh, as original O.P.D. ticket given by Military Hospital Jodhpur on relevant date has not been filed by the appellant Abhilakh Singh before any Court at any time. In view of all these facts and circumstances, no reliance could be placed on such suspicious documents and concerned defence evidence.
52- Some other important facts are also significant to mention here that after investigation, charge-sheet was filed before CJM, Bhind, describing Abhilakh Singh and his brother Raju (another co-accused) as absconder. It is clear from the impugned Judgment dated 07.03.2000 that co-accused Raju who is a real brother of appellant Abhilakh Singh and son of the another appellant Dulare Singh is still absconding, whereas complainant Mathura Singh (PW-4) has clearly deposed in his evidence that Dulare Singh's both sons Abhilakh Singh and Raju were in military service on the date of incident and both of them were in their native village Roop Sahay Ka Pura availing leave or vacation.
53- It would be significant to mention here that in cross-examination (para-19) of complainant Mathura Singh (PW-4) it was suggested by defence counsel that at the time of incident absconding accused Raju was on his military duty at Lucknow, but the given suggestion was clearly denied by complainant.
54- It would be significant to mention here that in cross-examination (para-21), it was suggested to 33 Cr.A. Nos. 215/2000 & Cr.A.223/2000 complainant Mathura Singh (PW-4) that on the date of incident appellant Abhilakh Singh and absconding accused Raju were in services of military and this suggestion was admitted by the complainant, but complainant also deposed that on the date of incident Abhilakh Singh and Raju both were on leave and involved in the incident.
55- It would also significant to mention here that it was suggested to prosecution witness by defence counsel that on the date of incident Raju was at Lucknow where he was posted in military. It is surprising that Dulare Singh's two sons were in military services on the date of incident but they could not be arrested during investigation and one of them, namely-Raju is still absconding. These abnormal facts and circumstances also adversely affect the alleged plea of alibi raised by appellant- Abhilakh Singh.
56- Appellant -Abhilakh Singh as (DW-1) deposed in para-6 that after receiving knowledge of relating crime registered against him for murder since November, 1994, he sent many letters to M.P. Government that he has been falsely implicated, but not a single such letter has been produced and proved by the appellant Abhilakh Singh to corroborate his alleged conduct of sending letter from November, 1994 to M.P.Government regarding his false implication. Appellant Abhilakh Singh as DW-1 has not disclosed that for what purpose he has obtained two months leave during April and May, 1994 and he has not deposed that during this leave period of two months, 34 Cr.A. Nos. 215/2000 & Cr.A.223/2000 why he remained at his posting place i.e. Jodhpur. These facts deposed by Abhilakh Singh are totally unbelievable. Any serviceman will not take such long leave or vacation only to remain present at his place of posting. In all these circumstances, firstly obtaining a certificate dated 13.02.1996 and secondly, non-production of the O.P.D. ticket by the appellant Abhilakh Singh, adversely affect the genuineness of (Ex.D-8 and Ex.D-9).
57- We are of the considered opinion that the trial Court did not err in disbelieving the evidence of defence witnesses DW-1 and DW-2 and on not placing reliance on plea of alibi raised by appellant-Abhilakh Singh specially in view of the fact that his real brother Raju a co-accused is still absconding, who was also in military service on the date of incident.
58- We are of the considered opinion that trial Court has minutely, properly and legally analyzed and appreciated the entire evidence available on record in light of so many referred citations and did not err in convicting and sentencing the present appellants of both these appeals for the offences as aforesaid. Both these appeals filed by the different appellants are having no substance.
59- Consequently, both the appeals filed by the appellants against the above-mentioned conviction and sentence is dismissed and each appellant's conviction and sentence as recorded by the trial Court is affirmed. All the appellants were previously released on bail after suspension of their jail sentence awarded by the trial 35 Cr.A. Nos. 215/2000 & Cr.A.223/2000 Court. Hence, all appellants are directed to surrender immediately before the trial Court to serve out their remaining jail sentences, otherwise trial Court shall take proper and legal steps for obtaining their presence before it. With a copy of this judgment, record of the trial Court be immediately sent back.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
/07/2018 /07/2018
Ashish*
Digitally signed by
ASHISH
CHOURASIYA
Date: 2018.07.04
15:13:26 +05'30'