Madhya Pradesh High Court
Narbat & Others vs The State Of M.P. on 10 January, 2020
Author: S.C.Sharma
Bench: S.C. Sharma
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CRA. Nos.946/2001, 981/2001 and 1189/2001
HIGH COURT OF MADHYA PRADESH BENCH AT
INDORE
Hon'ble Shri Justice S.C. Sharma & Hon'ble Shri
Justice Shailendra Shukla
CRA No.946/2001
DEVKARAN
V/s.
STATE OF M.P.
*******
Shri Neeraj Gaur, Advocate, for the appellants.
Shri Vinay Gandhi, Public Prosecutor for State.
*******
CRA No.981/2001
GATTU @ MAHESH
V/s.
STATE OF M.P.
*******
Shri Mukesh Kumawat, Adv., for the appellant.
Shri Vinay Gandhi, Public Prosecutor for State.
CRA No.1189/2001
NARBAT & ANR.
V/s.
STATE OF M.P.
*******
Shri Neeraj Gaur, Advocate, for the appellants.
Shri Vinay Gandhi, Public Prosecutor for State.
*******
JUDGMENT
(Indore dt. 10/1/2020) PER SHAILENDRA SHUKLA, J:-
These criminal appeals have been filed under Section 374(2) of Cr.P.C, preferred against the judgment
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CRA. Nos.946/2001, 981/2001 and 1189/2001 dated 24.8.2001, passed by the Sessions Judge, Dewas, in S.T.No.42/2001, wherein the appellant - Devkaran (CRA.No.946/2001), appellant - Gattu (CRA.No.981/2001) and appellants - Narbat and Mohabbat Singh (CRA.No.1189/2001) have been convicted as under :-
CRA.No.946/2001 filed by appellant Devkaran Sr.No. Conviction Sentence under Section Imprisonment Fine Imprisonment Amount in lieu of fine 1 302/149, Life -- --
IPC Imprisonment 2 323, IPC 6 months RI 3 148, IPC 2 years RI
CRA.No.981/2001 filed by appellant - Gattu @ Mahesh Sr.No. Conviction Sentence under Section Imprisonment Fine Imprisonment Amount in lieu of fine 1 302/149, Life Imprisonment -- --
IPC 2 148, IPC 2 years RI CRA.No.1189/2001 filed by appellant Narbat & Anr.
Sr.No. Conviction Sentence
under
Section Imprisonment Fine Imprisonment
Amount in lieu of fine
1 302/149, Life Imprisonment -- --
IPC each each
2 148, IPC 2 years RI each
each
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CRA. Nos.946/2001, 981/2001 and 1189/2001
2. Accused Fateh Singh had also been convicted and had been sentenced and he had preferred his appeal along with accused - Devkaran, but during the course of the proceedings accused Fateh Singh has expired and his appeal is abated.
3. The admitted facts are that the deceased Kamal Singh, complainant - Antar Singh and Rai Singh were real brothers. It is also admitted that the sister of the accused Kailash, Jagdish, Inder Singh, Khemraj and Maherban was married to Rai Singh.
4. The prosecution story in short is that the deceased- Kamalsingh and Antarsingh used to live in Village- Bijukheda in their own separate homes and they would daily go to a well for milking cows. On the fateful day i.e. on 09.08.2000, Antarsingh went to the well and milked his cow but deceased-Kamalsingh did not arrive. Antarsingh came back and went to the house of Kamalsingh and asked his son Narendrasingh regarding the whereabouts of Kamalsingh. Narendrasingh then went in search of his father and on the way he found milk vessel of his father hanging on a date tree. Narendrasingh then went towards a Nullah in search of his father and saw his father Kamalsingh being assaulted by accused persons. Narendra shouted and asked the accused as to why they were
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CRA. Nos.946/2001, 981/2001 and 1189/2001 assaulting his father. At this, Narendra was also given a stick blow by accused. Narendra fled from the spot and narrated the incident to his uncle Antarsingh and Antarsingh when he reached the spot he saw the dead body of Kamalsingh. There were number of injuries on his body. Report was lodged in police station-Hatpipliya. ASI V.D. Yadav (PW/10) recorded the FIR which was lodged by Antarsingh. On the same day, spot map was prepared and the punchayatnama of dead body was also collected. Seizure of ordinary soil and blood mixed soil was made available. Penetrating iron object (Gupti) was also seized from the spot, the accused were arrested and on the basis of memorandum of number of weapons which included Sticks, Sword, Axe and Dharia etc were also seized from the accused. Seizure items were sent to FSL examination and after completing the investigation, chargesheet was filed against 13 accused persons. The Sessions Court framed charges against these accused persons and the accused abjured their guilt and took a defence that they have been falsely implicated in the offence because of prior enmity with the complainant.
5. The prosecution examined as many as 11 witnesses. The trial Court after recording the evidence, vide judgment dated 24.08.2001 acquitted eight co-accused persons but
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CRA. Nos.946/2001, 981/2001 and 1189/2001 convicted the appellants and sentenced them as per para-1 of the judgment.
6. In the appeal which has been preferred by the appellants Narbad and Mohammad Singh, it has been stated that there were number of contradictions between the evidence of witnesses which have been overlooked by the trial Court, that Antarsingh and Narendrasingh both are interested witnesses, both being the kins of the deceased, that no independent witnesses have been examined and on these grounds, appeal has been sought to be preferred and it is prayed that appellants be acquitted.
7. The appellant-Gattu in his separate appeal has stated that Narendra has falsely been shown as the eye-witness, that other co-accused-Mangilal and Prahlad have been acquitted but on the same facts, the appellant-Gattu has been convicted and therefore acquittal has been sought on these grounds. Hence it is prayed that appellant-Gattu be acquitted.
8. The appellant-Devkaran in his appeal, has stated that lathi has been shown to be seized from Devkaran but not a single lathi injury has been found on the person of deceased, that Mangilal and Prahlad were two co-accused persons who were acquitted without assigning any reason and the evidence against appellant-Devkaran is not different
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CRA. Nos.946/2001, 981/2001 and 1189/2001 from that of accused Mangilal and Prahlad and therefore Mangilal also deserves to be acquitted.
9. The question for consideration is whether in view of the grounds contained in the appeals filed by the appellants, the trial Court committed an error in convicting the appellants and whether the appellants deserve to be acquitted ?
10. Dr. M.S. Pathak (PW-9) has conducted the post mortem of body of Kamalsingh on the day of incident. This witness was posted in Public Health Centre, Bagli, as Medical Officer on 09.08.2000. He found ten incised wounds on the body of deceased-Kamalsingh which were as follows :-
"(i) Incised wound on the left side of neck 3 inch x 3 inch.
(ii) Incised wound on the jaw 5 inch x 3 inch x 1½ inches. There was a fracture of jaw as well.
(iii) Incised wound on right scapula bone along with fracture of the same bone and there was also a fracture of head on humerus bone.
(iv) Incised wound below left chest 2½ inch x 2½ inch x 2 inches.
(v) Incised wound on the left side of maxillary region of face 2.5 inch x 1.5 inch x 2 inches.
(vi) Incised wound left clavicle region 3 inch x 2.5 inch x 1.5 inches.
(vii) Incised wound on right thigh 2.5 inch x 2 x 1.5 inch.
(viii) Incised wound on right thigh and on the anterior side of right thigh 3 inches x 1.5 inches.
(ix) Incised wound behind the skull 4 inch x 1.5 inch x 2 inches.
(x) Incised wound on the right side of waist 4 inches x 1.5 inches."
11. The main arteries of the neck had been found severed. Esophagus and larynx were found to have been severed and
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CRA. Nos.946/2001, 981/2001 and 1189/2001 intestines were also found to have been cut. There was a depressed fracture on the occipital bone and there was a subdural haemorrhage. These injuries were caused between 24-48 hours and were sufficient in the ordinary course of nature to cause death and the reason for death was excessive bleeding and severe injury caused in the skull. Postmortem report is Ex.P/42 having signatures of the witnesses from 'A' to 'A' part.
12. It is pertinent to note that FIR Ex.P/1 has been lodged at 8:30 am on 09.08.2000, in which it has been mentioned that the incident take place on the same day at 6:00 am. The post-mortem was conducted at 2:00 pm on the same day and therefore duration of injuries at the time of postmortem examination could not have been more than six to eight hours. However, the Doctor records duration of injuries between 24 to 48 hours meaning thereby that the incident had not taken place on 09.08.2000 but at-least one day prior to 09.08.2000. Dr. M.S. Pathak (PW-9) has narrated various changes which take place in the dead body over the period of time. V.D. Yadav (PW-10) who has recorded FIR Ex.P/1 states that the dead body's punchayatnama Ex.P/16 was prepared by him on 09.08.2000.
13. Thus, contrary to prosecution story that the incident
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CRA. Nos.946/2001, 981/2001 and 1189/2001 occurred on 09.08.2000 at about 6:00 am, the doctor's evidence shows that the incident had taken place at-least a day prior to 09.08.2000.
14. The witness Narendrasingh (PW-2) has been given suggestion in para-17 that the injuries found on the person of his father were old and that his father had been killed night before. This suggestion has been denied by the witness.
15. Having found that there is clear difference between the time of incident as per the evidence of Narendrasingh (PW-2) and Antarsingh (PW-1) on one hand and that by Dr. Pathak (PW-9) on the other hand, the evidence of sole eye- witness (PW-2) shall be discussed.
16. Narendra (PW-2) is the son of deceased-Kamalsingh. He being interested witnesses, his evidence needs to be considered very cautiously. This witness states that on 09.08.2000 while he was at his home, his father woke him up and asked him to resume his studies and then he went to the well for milking cows. After sometime his uncle Antarsingh asked about whereabouts of Kamalsingh. The witness told him that his father had gone to the well. Antarsingh told him to go to the well and tell Kamalsingh that Antarsingh had already milked the cows. Narendra (PW-2) thereafter proceeded towards well and on the way
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CRA. Nos.946/2001, 981/2001 and 1189/2001 he found the milk vessel hanging on a stubble of the date tree. He then heard some voice towards 'nullah' and when he proceeded towards 'nullah' he saw accused assaulting his father with sharp edged weapons. The witness states that he shouted at that moment, the accused Fatehsingh and Devkaran came over and assaulted the witness with stick and dharia. Devkaran hit the witness with a stick on his left hand. The witness states that on being assaulted he cried aloud and hearing his cries, the servant Premnath reached the spot and then Devkaran took a dharia from the hands of his brother and again proceeded to assault Narendra but Premnath intervened and the finger of Premnath got injured.
17. The prosecution has not examined Premnath in this case. Narendra (PW-2) has stated that he was taken by police for MLC. V.D. Yadav (PW-10) also states that he had seen Narendra and Premnath both to be injured and sent them for their MLC examination.
18. However, the prosecution has not produced any document of MLC in respect of Narendra and Premnath. No doctor has been examined as well to substantiate the injuries on Narendra and Premnath.
19. Narendrasingh (PW-2) is the sole eye-witness but neither he has accompanied Antarsingh (PW-1)for lodging of FIR, nor he has been shown as a witness of spot map or a
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CRA. Nos.946/2001, 981/2001 and 1189/2001 seizure witness. There are number of other contradictions in his statements. In examination-in-chief, he states that on the date of incident his father had woken him up in early morning and asked him to resume his studies and then he went to the well for milking cows. However, such statements have not been made in police statements Ex.D/2 and this contradiction has been pointed out to the witness in para-14. The witness claims ignorance as to why in his police statements such averments have not been mentioned. In his examination-in-chief, he has stated that when the witness shouted, he was hit by Fatehsingh and Devkaran. However, there is no mention of such facts even in Ex.D/2, his police statements.
20. Narendrasingh (PW-2) admits that there was a dispute between his father and his uncle Antarsingh regarding terms of partition which had taken place and a suggestion has been given to the witness Narendrasingh (PW-2) in para-16 that his father-Kamalsingh was done to death by none other than Antarsingh and Premnath. This suggestion has been denied by the witness.
21. It is, thus, found that there are number of infirmities in the deposition of Narendrasingh (PW-2). He states that he suffered injuries at the time of incident. However, no such injury to him has been established by the prosecution.
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CRA. Nos.946/2001, 981/2001 and 1189/2001 He having seen the incident himself has not lodged the FIR and is not found to be a witness of spot map and other documents which is quite unnatural. This apart, there are number of contradictions in his deposition and his police statements Ex.D/2.
22. Further, Narendrasingh (PW-2) has admitted friction between his father the deceased-Kamalsingh and his uncle Antarsingh (PW-1) but denies that it was Antarsingh who has murdered his father along with Premnath.
23. It is strange to note that Premnath being a star witness has not been examined by the prosecution.
24. A perusal of order-sheets show that Premnath has been shown to have left the village and is not traceable. After making all efforts for procuring his presence, the trial Court has closed the prosecution case on31.07.2001. Antarsingh (PW-1) states that Premnath was his servant but states that in para-8 that Premnath has fled. In para-12,he denies that he and Premnath were inimical to Kamalsingh.
25. It cannot be denied that Premnath was made to flee the village so that truth of the death of Kamalsingh may not be revealed. His fleeing away raises a presumption that either Premnath himself was involved in the crime or he was made to flee so that he may not reveal the truth as to who had killed Kamalsingh.
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CRA. Nos.946/2001, 981/2001 and 1189/2001
26. Narendrasingh (PW-2) states that he went to the spot and he saw milk vessel hanging on the stubble of a date tree. This vessel has not been seized by the police. Had the same been seized, it would have given some credence to the prosecution story that incident had taken place when Kamalsingh had gone to fetch milk.
27. There is further discrepancy in the statements of Antarsingh (PW-1) and Narendrasingh (PW-2) as to whether there were two different passages available for arriving at the well or whether there was only one passage for the same.
28. Narendrasingh (PW-2) in para-20 states that there was only one passage to go to the well. On the contrary, Antarsingh (PW-1) states in para-9 that there are two passages for going to the well, bullock-cart passage and pagdandi (used for only walking down). Antarsingh (PW-1) states that he always took narrower passage and used to go walking, whereas Kamalsingh used to go to the well through another passage and there was a distance of 1000 feet between these two passages.
29. In the spot map Ex.P/1, it has not been shown that there were two passages. Thus,there is serious contradiction between the statements of Antarsingh (PW-1) and Narendrasingh (PW-2) and it appears that Antarsingh (PW-
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CRA. Nos.946/2001, 981/2001 and 1189/2001
1) has tried to show that he and Kamalsingh used to take separate passages for arriving at well.
30. Learned counsel for the accused/appellants submits that had Antarsingh (PW-1) stated that there was only one passage, he could not have denied that he had an opportunity to see milk vessel of Kamalsingh hanging on the stubble of a date tree and further he could very well have seen the incident as well.
31. Narendrasingh (PW-2) being the sole eye-witness has stated that he saw the accused persons giving blows to deceased-Kamalsingh with sharp edged weapons. However, Investigating Officer (IO) had recovered ten sticks from ten different accused persons and only three sharp edged weapons have been shown to be recovered from the appellants Mohabbat, Narbad and Mahesh.
32. Narendrasingh (PW-2) in his examination-in-chief does not state as to which accused was wielding which kind of weapon. In para-21, he states that some of the accused persons may have been wielding lathis but he cannot state for sure. It is only in para-21, he states that Mohabbat was wielding Dharia, Narbad was wielding sword and Gattu was wielding Axe.
33. Devendra Singh Raghuvanshi (PW-11) has stated that Mohabbat in his memorandum Ex.P/26 had informed that
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CRA. Nos.946/2001, 981/2001 and 1189/2001 he had hidden Dharia in his house which was seized as per Ex.P/39. He also states that appellant-Gattu had given memorandum statement at Ex.P/20 that he had hidden Axe in his house and Axe was seized subsequently from his house. As per Ex.P/22, this witness also states that Narbad had given his memorandum as Ex.P/21 stating that he had hidden sword in his house and the same was seized from his house. This witness also states that these weapons were sent to FSL vide draft Ex.P/45 and the FSL report is Ex.P/46. A perusal of FSL report shows that the articles E, P & Q have shown positive results for finding of blood traces. However, it is not been shown as to whether the blood traces were of human origin or not ? In accused statements, the accused persons have not been confronted with the findings of FSL report and in absence of such confrontation, FSL report looses its evidentiary value.
34. The prosecution has not been able to establish the motive available with the appellants for causing murder's assault on Kamal Singh. Antar Singh (PW1) although has stated that the appellants were having a land dispute with the deceased - Kamal Singh and, therefore, they had attacked Kamal Singh. However, no description of any land dispute has been specified. Narendra Singh (PW2), son of deceased Kamal Singh has not spoken of any dispute
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CRA. Nos.946/2001, 981/2001 and 1189/2001 between father Kamal Singh and the appellants. In fact, Narendra Singh (PW2) in para 17 has stated that one of the accused Mangilal was the neighbor of Kamal Singh and there was no dispute between him and Kamal Singh. Thus, the prosecution has not been able to establish any motive on the part of the appellants for committing the offence of murder of Kamal Singh. Instead, it has been found that there was a dispute on account of alleged inequitable partition between the deceased and his brother Antar Singh (PW1).
35. Thus, it is clear that the evidence of sole eye-witness Narendrasingh (PW-2) is replete with contradictions and omissions and he is an interested witness as it was his father who had been killed. In the case of Mangilal and Others vs State of Madhya Pradesh 1990 JLJ 401, it has been laid down that if the testimony of sole partisan eye-witness is highly unnatural, then the same cannot be made basis for conviction. It can further be seen that there is a discrepancy in the evidence of Antarsingh (PW-1) and Narendrasingh (PW-2). The material witness Premnath has not been examined. FSL report also does not show the origin of blood on weapons to be a human blood. Moreover, this FSL report has not been confronted to the appellants in their accused statements. Hence, no reliance on this FSL report
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CRA. Nos.946/2001, 981/2001 and 1189/2001 can be possible in arriving at a conclusion. Most importantly, the prosecution has not been able to show that the death of Kamalsingh occurred in the wee hours on 09.08.2000. Instead, it is found that the death had occurred at-least a day prior to 09.08.2000. The prosecution story, thus crumbles, leading to ultimate acquittal of the appellants.
36. The appeals consequently stand allowed and the appellants namely; Devkaran, Gattu, Narbad and Mohabbat are acquitted from all the charges framed against them. The bail bonds furnished by them stand discharged and they are directed to be released from jail forthwith.
37. A copy of this order along with original record be sent to the trial Court for due compliance.
(S.C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Digitally signed by Shailesh
SS/- Sukhdev
Date: 2020.01.16 18:44:12 +05'30'
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CRA. Nos.946/2001, 981/2001 and 1189/2001 HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Hon'ble Shri Justice S.C. Sharma & Hon'ble Shri Justice Shailendra Shukla CRA No.946/2001 Indore dt.25.11.2019 Shri Neeraj Gaur, Advocate, for the appellants. Shri Vinay Gandhi, Public Prosecutor for State. Heard finally.
Reserved for judgment.
(S.C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
CRA No.981/2001
Indore dt.25.11.2019
Shri Mukesh Kumawat, Adv., for the appellant. Shri Vinay Gandhi, Public Prosecutor for State. Heard finally.
Reserved for judgment.
(S.C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
CRA No.1189/2001
Indore dt.25.11.2019
Shri Neeraj Gaur, Advocate, for the appellants. Shri Vinay Gandhi, Public Prosecutor for State. Heard finally.
Reserved for judgment.
(S.C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
10.1.2020
Judgment delivered, signed and dated.
(S.C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
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CRA. Nos.946/2001, 981/2001 and 1189/2001 HIGH COURT OF MADHYA PRADESH BENCH AT INDORE (D.B. HON'BLE JUSTICE SHRI S.C. SHARMA & HON'BLE JUSTICE SHRI SHAILENDRA SHUKLA) CRA No.946/2001 DEVKARAN V/s.
STATE OF M.P. **** CRA No.981/2001 GATTU @ MAHESH V/s.
STATE OF M.P. **** CRA No.1189/2001 **** NARBAT & ANR.
V/s.
STATE OF M.P. ********** JUDGEMENT For consideration Hon'ble Justice Shri S.C. Sharma Judge 1.2020 (Shailendra Shukla) Judge Post for :- 10.1.2020 (S.C. Sharma) Judge