Madhya Pradesh High Court
Deendayal vs State Of M.P. on 3 August, 2022
Author: Rohit Arya
Bench: Rohit Arya, Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
CRIMINAL APPEAL No.77 of 2001
Between:-
1. DEENDAYAL S/O NENKA, AGED
ABOUT 23 YEARS, OCCUPATION:
AGRICULTURIST, R/O VILLAGE
MEKHDI, POLICE STATION BADODA,
DISTRICT SHEOPUR KALAN (MADHYA
PRADESH)
2. KADULAL, S/O NENKA, AGED
ABOUT 27 YEARS, OCCUPATION:
AGRICULTURIST, CASTE: JATAV, R/O
VILLAGE MEKHDI, POLICE STATION
BADODA, DISTRICT SHEOPURKALAN
(MADHYA PRADESH)
3. RAM SINGH S/O SHRI SITARAM
VERVA, AGED ABOUT 20 YEARS,
OCCUPATION: AGRICULTURIST, R/O
VILLAGE MEKHDI, POLICE STATION
BADODA, DISTRICT SHEOPURKALAN
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI RAJ KUMAR SINGH KUSHWAHA AND SHRI
2
KESHAV PATHAK - ADVOCATES )
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION BADODA, DISTRICT
SHEOPURKALAN (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI NAVAL GUPTA -GOVERNMENT
ADVOCATE)
AND
CRIMINAL APPEAL No.108 of 2001
Between:-
1. CHHOTYA @ CHHOTELAL, S/O
BAJRANGLAL, AGED 30 YEARS,
OCCUPATION: AGRICULTURIST, R/O
VILLAGE MEKHDI, POLICE STATION
BADODA, DISTRICT SHEOPURKALAN
(MADHYA PRADESH)
2. PAPPU S/O SHRI BAJRANGLAL, AGED 25
YEARS, OCCUPATION: AGRICULTURIST,
R/O VILLAGE MEKHDI, POLICE STATION
BADODA, DISTRICT SHEOPURKALAN
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI RAJ KUMAR SINGH KUSHWAHA AND SHRI
KESHAV PATHAK - ADVOCATES )
AND
3
STATE OF MADHYA PRADESH THROUGH
POLICE STATION BADODA, DISTRICT
SHEOPURKALAN (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI NAVAL GUPTA - GOVERNMENT ADVOCATE)
--------------------------------------------------------------------------------
Reserved on 18.07.2022
Delivered on 03.08.2022
--------------------------------------------------------------------------------
These appeals coming on for hearing this day, Hon'ble Shri
Justice Milind Ramesh Phadke, passed the following:
JUDGMENT
(1) The judgment passed in this appeal shall also govern the disposal of connected Criminal Appeal No.108/2001 (Chhotya @ Chhotelal and another Vs. State of Madhya Pradesh) since the connected appeal has arisen from the common judgment passed by the learned Trial Court.
(2) Feeling aggrieved by the judgment of conviction and order of sentence dated 18.12.2000 passed by the learned Additional Sessions Judge, Sheopurkalan in Sessions Trial No.86/1996, convicting appellants of this appeal as well as appellants of connected Criminal Appeal No.108/2001 under Sections 148, 302/149 of IPC and thereby sentencing them to suffer one year 4 R.I. under section 148 of IPC and also sentencing them to suffer life imprisonment and fine of Rs.1000/- each u/s 302/149 I.P.C., in default, further R.I. of one year with a further stipulation that all the sentences shall run concurrently, the appellants have preferred this appeal under Section 374 (2) of Code of Criminal Procedure, 1973.
(3) In brief, the case of prosecution is that on 2.11.1995 at about 7:00 a.m. in the morning Ramcharan, Khemraj, Siyaram, Ram Singh and Siyaram Batond wale, who is brother-in-law of Ramcharan, had gone to irrigate their fields situated near small canal. On reaching the canal, when these people were removing the hurdle to carry water to the field, that the accused persons Sitaram (now deceased), Ram Singh, Deendayal, Kadya, Chhotya, Pappu resident of Village Mekhda Hedi were seen coming from village towards the canal. Sitaram was seen armed with 12 bore gun, Ramsingh armed with Farsa, Deendayal with Khutiya, Chhotya with sword and Pappu with axe. As soon as all these accused persons reached near Khemraj Sitaram started hurling abusive words and said to caught hold of Khemraj as he was found alone and after that Deendayal from behind gave Khutiya blow on the head of Khemraj, thereafter Chhotya gave two to three sword blows on the side, due to which blood started oozing out from the injuries and Khemraj fell down. After this, Ram Singh gave a farsa blow on the neck of Khemraj, which almost severed his neck. Then Pappu inflicted an axe blow on Khemraj which hit him on his chin, Kadya gave a Khutiya blow which hit Khemraj on his 5 palm of left hand. Sitaram, who was armed with a gun was extorting the other accused persons and was instigating them to kill Khemraj.
(4) When Complainant Ramcharan (PW-1), his brother and brother-in-law tried to intervene, Sitaram fired a gun shot and all remaining accused persons ran towards them saying that they have already killed Khemraj, now someday they will kill all the three brothers too. Frightened, complainant and all others ran towards the Village Talavada and after few hours, when they returned to the place of incident, saw dead body of Khemraj, who had succumbed to injuries inflicted by the accused persons. All the three brothers i.e. complainant Ramcharan (PW-1), Siyaram (PW-
2) and Ramsingh (PW-3) in a state of shock sat near the dead body and sent their brother-in-law Siyaram (PW-7) to the village to bring tractor trolley. The police reached the spot at around 12 o'clock and thereafter in the tractor of Panna Lal Patel the dead body of Khemraj was taken to Badoda, since the Doctor was not available at Badoda, they took the body to Sheopurkalan. At Sheopurkalan, a written complaint was made by Ramcharan to the Additional Superintendent of Police Sheopurkala narrating the entire facts.
(5) On 2.11.1995, itself at around 12'o clock Purushottam (CW-1) lodged a report at Police Post (Chowki), Pandola that on an information given by Ram Singh Meena that someone had killed Khemraj and his dead body is lying on the field, he went to the field and after seeing the dead body, along with one Kamlesh 6 he had come to lodge the report.
(6) At Police Post (Chowki) Pandola the crime was registered at Crime No. 0/1995 which is marked as Ex-D/1. This report was send to the concerned Police State Badoda, where it was numbered as Crime No. 151/1995.
(7) On the basis of this First Information Report, investigation was triggered and set in motion. The Investigating Officer, Raghvendra Rishishwar (PW.9) on receiving the information from Police Post (Chowki) Pandola, went there and after gathering information reached the spot, prepared spot map (Ex.P.21), gave notice u/s 175 Cr.P.C.(Ex. P/22) to the witnesses, prepared dead body panchyatnama (Ex.P/23), seized the necessary articles including the blood stained soil/plain soil from the place of occurrence vide Ex.P/24 and a sword Ex.P/25 and sent the dead body for post mortem. On 3.11.1995 Dr. R.K. Sharma (PW.5) conducted the post-mortem (Ex. P/6) on the body of the deceased at Primary Health Centre, Sheopurkalan. Following injuries were found on the person of deceased Khemraj:
"(i) Wound on the front of neck transverse lie at level of thyroid cartilage which is 12 cm x 5 cm deep upto the organ. Right side big blood vessels were cut.
(ii) Wound between the lower lip and chin 8 x 3 cm deep up to bone.
(iii) Wound on the right lower lip which extend up to angle of mouth 6 x 3 cm and had broken the teeth.
(iv) Right side of cheek below the ear which extend behind Skull 8 x 4 cm deep 7 up to bone.
(v) Right side on the ear pinna upper 2/3rd cut deep wound, which extend upto back of skull 12 x 4 cm deep up to bone & fracture of temporal bone.
(vi) Transverse wound on the skull occipital bone 6 x 3 cm deep up to bone.
(vii) Wound on the left side of Skull 6 x 4 cm deep upto muscle.
(viii) Wound on the left clavicle 2 x 2 x 1 cm.
(ix) Wound through and through on the left hand which extend between index finger up to base of wrist joint.
(x) Wound on the left hand on thumb 6 x 3 cm deep up to muscle.
(xi) Wound on the left wrist joint 3 x 1 x 1 cm.
(xii) Wound on the right iliac fosse 3 x 1 x deep upto skin."
(8) As per Dr. R.K. Sharma (PW-5) all the injuries were caused by means of hard and sharp object. The food pipe as well as wind pipe and big artery were expurgated. Cervical vertebra and right occipital bone were fractured. Right parietal and temporal bones were also fractured. There was fracture of mandible, even bone on the right side of the eye was broken. Bone of upper joint of mandible was also broken. His brain matter was not oozing out, left chamber of the heart was empty, there was liquid in the stomach but there was no food. Vide post mortem report (Ex.P/6), he opined that cause of death was hemorrhage & shock due to injuries to vital organs, brain, big blood vessels, trachea and 8 multiple fractures, his death was homicidal in nature and within 38 hours of postmortem.
(9) On the same day statements of Ramcharan (PW-1), Siyaram (PW-7), Purushottam (CW-1), Ramsingh s/o Siyaram were recorded u/s 161 Cr.P.C. On 13/11/1995 statements of Siyaram (PW-7) and on 20/12/1995 those of Shankar and Ramvilas were recorded. On 18/11/1995 accused persons namely Deendayal, Babulal and Ramsingh were arrested vide memo Ex. P/7, P/8 & P/9 respectively. On the basis of their respective memos from Deendayal one shirt and one pant were seized vide Ex.P/10, from Ramsingh one shirt vide Ex.P/11 and from Kadu one shirt and one pant vide Ex.P/12 were seized. On 19/11/1995 statement of accused Pappu u/s 27 of Evidence Act (Ex. P/13) was recorded and later two more disclosure statement's (Ex.P/14 & Ex.P/15) were recorded. On 21/11/1995 at the instance of accused Deendayal a Khutiya Ex.P/26 was recovered and at the instance of accused Kadulal another Khutiya Ex.P/27 was recovered. One pant (Ex.P/28) and one farsa (Ex.P/29) were recovered at the instance of accused Ramsingh on the same date. On 07/12/1995 accused Chotelal was arrested vide Ex.P/2 & P/3 and vide his memorandum Ex.P/4, an axe Ex.P/5 was seized from him. All the articles seized in the incident were send for F.S.L. vide Ex.P/19 and its report was received vide Ex.P/20.
(10) On completion of the investigation, charge sheet was filed against the appellants/accused before the Additional Chief Judicial 9 Magistrate Sheopurkalan, where the matter was registered as Criminal Case No.736/1995. Since the matter was triable by Sessions Court, on 20/02/1996 the matter was committed to the Court of Sessions. Morena.
(11) The learned Trial Judge on the basis of the averments made in the charge sheet framed charges punishable under Sections 148, 149 and 302 of IPC and put the sessions to trial.
(12) In order to bring home the charges, the prosecution examined as many as 10 witnesses and placed Ex. P/1 to P/29 documents on record. The defense of appellants is of false implication and the same defense they set forth in their statements recorded under Section 313 Cr.P.C. The accused/appellants have examined Omkar Singh (DW.1) in their defence.
(13) The learned Trial Judge on the basis of evidence placed on record came to hold that charge under Section 302/149 of IPC has been proved against the appellants/accused as a result they were convicted and sentenced as mentioned hereinabove.
(14) In this manner, this appeal and the connected appeal came to be filed by the appellants assailing their judgment of conviction and order of sentence passed by the learned Trial Court.
(15) Learned counsel for the appellants vehemently argued while assailing the impugned judgment contending that the appellants have falsely been implicated due to previous enmity between the appellants and the complainant party. It was also contended that the complainants were hand in glove with the Police and just to 10 implicate the appellants created the documents Ex. P/1 the written complaint, which was not in existence till 03/11/1995, the day on which it was received by the Police Authorities of the concerned Police Station.
(16) Learned counsel for the appellants had strenuously tried to assail Ex. P/1 to be a concocted document since the endorsement of receiving by the Police Officials is that of 03/11/1995 at 13.00 hrs and on that basis had tried to attack the genuineness of the complaint stating that it was prepared on 03/11/1995 and not on 02/11/1995, the complainants due to previous enmity had falsely roped in the appellants in the incident, as there were cases of attempt to murder of Sitaram and of murder of brother of Sitaram. As also the F.I.R. which was lodged at prior point of time was against unknown persons, wherein the time of incident was mentioned as intervening night of 01/11/1995 and 02/11/1995, which finds support from the Doctors evidence as he had stated in the post mortem report and in his statement the time of death is within 38 hours of the postmortem, which was done at 7.00 a.m. on 03/11/1995, which does not tally with the time mentioned in the complaint Ex. P/1, according to which the incident had occurred at about 7.00 a.m. on 02/11/1995.
(17) Learned counsel for the appellants further raised a ground that possibility of the written complaint Ex. P/1 being a concocted document in comparison with the F.I.R. cannot be ruled out for the simple reason that the complainant Ramcharan (PW.1), his 11 brothers and brother-in-law, as per their own statements had alleged themselves to be present on the spot at the time Police arrived on the scene, they participated in the investigation, till the dead body of Khemraj was taken to hospital, but they never tried to narrate the true story to the Investigating Officer, when at that moment they were not knowing as to what information the Police was having and what prompted the Police to come on the spot? This very conduct of the complainant party does not appear to be natural, as when they had seen the incident from their naked eyes and that too murder of their real brother, though they were present on the spot never told the Police about the incident, rather it reflects that as an afterthought and pre-mediation of minds the said complaint was made implicating the appellants. It was also argued, by taking this Court through the statements of eye-witnesses Ramcharan (PW.1), Siyaram (PW.2), Ramsingh (PW.3) and Siyaram s/o Bajranglal (PW.7) that they were planted witnesses and were not present on the spot at the time of the incident, since firstly in the F.I.R. the time of occurrence of the incident mentioned is intervening night of 01/11/1995 and 02/11/1995, which is duly corroborated by the medical evidence, wherein the Doctor in his statement and in the postmortem conducted on 03/11/1995 at 7.00 a.m., had mentioned that the death of the deceased occurred within 38 hours of the postmortem. Secondly, the alleged eye-witnesses in their deposition before the Court had stated that the time of occurrence of the incident is 7.00 a.m. on 02/11/1995 and in front of them appellants had assaulted deceased 12 Khemraj, but looking to the aggression of the accused persons and accused Sitaram firing gun shot at them, they got startled and instead of intervening they fled from the spot and returned only after some time, but were not consistent with the timings of their return, some said they were back by 8.00 a.m. and others say they returned at 12.00 p.m., which also creates doubt about their presence.
(18) It was also argued by the learned counsel for the appellants that no blood stained soil was recovered from the spot, as from the FSL report it is clear that the blood stains were disintegrated and their origin could not be determined, also there is no explanation as to the presence of a 'Rajai' (Quilt) over the dead body, which indicates that the deceased had gone to the fields in the night, as usually whenever villagers go for guarding their fields in the night, they carry 'Rajai' with them and that too without blood stains on it.
(19) Learned counsel for the appellants further argued that none of the weapons seized from the appellants were send for F.S.L., only the sword seized from the spot and the cloths of the deceased were send for examination, which though contained blood stains, were not proved by the prosecution to be human blood, which vitiates the entire prosecution story. Further, since Dr. R. K. Sharma (PW-5) had deposed that the death of Khemraj had occurred within 38 hours of the postmortem, but admits that the rigor mortis present over the body had not passed as usually with 6 13 to 8 hours the stiffness in the body starts and spreads to the whole body within 32 to 42 hours and after 48 hours it starts passing off, the time of death mentioned in the F.I.R. was correct and the story of alleged eye-witnesses is falsified.
(20) Lastly, learned counsel for the appellants contended that infact the written complaint was filed on 03/11/1995 by Ramcharan (PW.1) and not on 02/11/1995 as contended, which was a delayed complaint and was prepared just to implicate the present appellants, as there was some previous enmity between the parties. Thus, legality and propriety of the impugned judgment of conviction was challenged by the learned counsel for the appellants on the ground of mis-appreciation of the evidence on record. The so-called eye-witnesses are close relatives of the deceased, therefore, they are highly interested witnesses. There are material contradictions and inconsistencies between the testimony of the witnesses and there was no cogent evidence to establish the ingredients of offence under Section 302/149 of IPC against the appellants. The appellants have been falsely roped in the offence. The learned Trial Court erred in convicting the appellants, hence, the appeals be allowed and the appellants be acquitted from the charge. To bolster his submissions reliance was placed in the matters of Ganesh Bhawan Patel & others Vs. State of Maharashtra reported in AIR 1979 SC 135 and Amar Singh Vs. State (NCT of Delhi) reported in (2020) 19 SCC 165.
(21) On the contrary, Shri Naval Kishore Gupta, learned Public 14 Prosecutor supported the impugned judgment and findings arrived at by the learned Trial Court and submitted that the conviction in question is well merited. He submitted that the F.I.R. lodged at the instance of Purushottam (CW-1) was just a piece of information and infact was not an F.I.R in true sense, though it had triggered the investigation and since he was not the eyewitness to the incident, names of the appellants not appearing in the said information, would not create any doubt about its veracity. The complaint Ex.P/1 was actually the F.I.R as it perceptibly disclosed the occurrence of a cognizable offence.
(22) It was further argued that the written complaint Ex. P/1 was submitted by complainant Ramcharan (PW.1) on 02/11/1995 to Additional Superintendent of Police, Sheopurkalan in the evening, when he had taken the dead body of deceased Khemraj to hospital at Sheopurkalan and thereafter on the next date the complaint was handed over to the officials of concerned Police Station, therefore, the acknowledgement of receiving the complaint is of 03/11/1995, which in any way cannot be said to be given on 03/11/1995 as an afterthought and this fact was also admitted by the Investigation Officer Raghvendra Rishishwar (PW-9) in para 8 of his statement. The statements of the eyewitnesses Ramcharan (PW.1), Siyaram (PW.2), Ramsingh (PW.3) and Siyaram s/o Bajranglal (PW.7) were recorded on 28/07/1998, 11/11/1997 and 17/08/1998 respectively, before the Court, after a lapse of 2 to 3 years approx and none of the witness drifted from the complaint Ex. P/1 and their statements u/s 161 Cr.P.C. except for some discrepancies 15 which were not material. In counter to the argument about the unnatural conduct of the complainant in not intervening and later informing about the incident to the Police at the time when the Investigating Officer had arrived on the spot at 1.30 p.m. on 02/11/1995, referring to para 14, 17 & 21 of the statement of Ramcharan (PW.1) it was contended that since due to belligerence of the assailants they were frightened, which forced them to run away from the spot and further due to death of their brother Khemraj all were in a state of shock and therefore could not narrate the incident to the Investigating Officer at the time he had arrived at the scene of occurrence. This fact had also been affirmed by the Investigating Officer Raghvendra Rishishwar (PW-9) in para 20 of his statement, thus, not narrating the story to the Police at earlier point of time is not fatal to the prosecution case.
(23) With closing remarks learned Government Advocate submitted that the ocular evidence of the eye-witnesses regarding causing injuries to the deceased Khemraj by the appellants were duly supported by the evidence of Dr. R.K. Sharma (PW-5), who had done the autopsy of the deceased Khemraj and had deposed in para 1 of his statement about the corresponding injuries sustained by the deceased as stated by the eye-witnesses, thus, common intention of the appellants, who were armed with deadly weapons and their involvement in the incident was very well established by the prosecution and on strength of above submissions prayed for dismissal of the appeal.
16DISCUSSION:
(24) In order to appreciate the merits of the rival contentions in a proper perspective, it would be necessary to billboard the evidence available on record. Purushottam (CW.1) was the first person to report the matter to the Police. Now whether the said report would be called as a F.I.R. or not is to be gathered from the contents of it.
The contents of F.I.R is reproduced as under:
"eSa xzke esjoMh dk jgus okyk gksdj [ksrh djrk gWaqA vkt esa vius xkWao es Fkk rc eq>s jkeflag eh.kk us crk;k fd [ksejkt dks fdlh us ekj fn;k gSA ml dh yk'k ekM es iMh gS rc es ekM es igwWapk rks ns[kk fd esjs ppsjs HkkbZ [ksejkt dks fdUgh yksxksa us mlds xys es pksV igwWapkdj ekj Mkyk gSA ml dk xyk dkV fn;k gS [kwu fudyk gS ml ds ckn esa deys'k eh.kk ds lkFk djus ij fjiksVZ djus vk;k gWaw dk;Zokgh dh tk,A F.I.R vly vijk/k ij dk;eh gsrq t;Z vkj- ijeky ds lkFk Fkkuk cMksnk Hksth tkrh gSA"
From bare reading of the F.I.R. it would clear that it was lodged by Purushottam on an information received from one Ramsingh. Though in the F.I.R. it was mentioned that he had visited the scene of occurrence, but since he was not an eyewitness to the incident, names of the accused/Appellants were not mentioned therein, but in an unambiguous manner it disclosed commission of a cognizable offence. Thus, the report lodged by Purushottam (CW.1), which was about the commission of an offence, though did not mention any names of the assailants, but it certainly 17 disclosed commission of a cognizable offence and the information so lodged provided a basis for the police to suspect the commission of a cognizable offence and proceed for investigation.
(25) In the case of Superintendent. of Police, CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 and in the case of State of U.P. v. Naresh, (2011) 4 SCC 324, the Hon'ble Supreme Court had observed and held that FIR is not an encyclopedia, which must disclose all facts and details relating to the offence reported. In paragraph 20 in the case of Tapan Kumar Singh (supra), it is observed and held as under:
"20. It is well settled that a first information report is not an encyclopedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eyewitness so as to be able to disclose in great detail all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied 18 that a cognizable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details he must find out those details in the course of investigation and collect all the necessary evidence. The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the police officer concerned is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence.19
Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can."
Thus, Ex.D/1 i.e. the F.I.R. in a true sense could be said to be an F.I.R.
(26) Now the question is as to when and how the names of the appellants surfaced in the incident? The names of the appellants first surfaced in the written complaint Ex/P/1 submitted filed by Ramcharan (PW.1) on 02/11/1995, wherein specific allegations regarding involvement of the appellants were made, the weapons which were carried by each of them at the time of incident were mentioned, their role in assault and corresponding injuries caused by their assault to the deceased Khemraj, were revealed. This complaint according to this court partakes the nature of statement u/s 161 Cr.P.C.
(27) In the complaint there is specific mention of appellants Ramsingh carrying a farsa, Deeendayal, Kadulal carrying Khutiya, Chotya carrying sword, Pappu carrying an Axe and Sitaram carrying a .12 bore gun and as soon as they reached the spot Sitaram extorted other appellants to caught hold of deceased and kill him as after a long time he was found alone and on his inducement Deendayal inflicted a blow on the head of Khemraj by means of Khutiya from behind and immediately thereafter Chotya gave sword blows on side above waist due to which blood started oozing out and Khemraj fell down. After that Ramsingh gave a 20 farsa blow on the neck, which caused an incised wound nearly severing the neck and then Pappu inflicted an axe blow on the chin. Lastly Kadya caused a Khutiya injury on palm of left hand. Sitaram standing there was shouting not to leave anyone and seeing the complainant party coming towards them fired gun shots at them. The complaint, his brothers and brother-in-law in wake to save their lives, ran from the spot towards Talwada. While running they heard Sitaram shouting that this time he had killed Khemraj and some other day he would kill them also.
(28) After some time when they returned back they saw Khemraj dead. In state of shock and in absence of any means of transport they sat near the dead body and send their brother-in-law Siyaram (PW-7) to bring tractor and when the Police came at about 12.00 p.m. they took the body to Badoda. As they could not find the Doctor, they took the dead body to Sheopurkalan. It was also mentioned therein that since they were frightened, no body from their family had gone to lodge the report and now as they had brought the dead body of their brother to Sheopurkalan that they are filing this complaint. Thus, the written complaint contained exhaustive description of the incident, which was proved by Ramcharan (PW.1), as discussed later.
(29) Challenge to the said written complaint Ex.P.1 as a concocted document by the learned counsel for the appellants is now to be seen in context of the finding as above that since it assumes the nature of statement u/s 161 Cr.P.C., the contents 21 thereof is required to be proved as any other document.
(30) In the above context if the statement of Ramcharan (PW.1), the complainant is seen, in para 21 he had explained that he had handed over the report to the Additional Superintendent of Police, who later in the hospital had given the said report to Police on the same date at 9.00 p.m. This fact was also confirmed by the Investigating Officer Raghvendra Rishishwar (PW.9) in para 8 of his statement that on 03/11/1995 when he had gone to Sheopurkalan for postmortem that Additional Superintendent of Police had handed over to him the complaint, thus, this fact negatives the contention of the learned counsel for the appellants that the complaint was handed over to the Police on 03/11/1995.
(31) Further Ramcharan (PW.1), who had submitted the written complaint Ex.P/1 and whose statement before the Trial Court was recorded on 28/07/1997, in para 3 had deposed that appellants Deendayal and Kadu were armed with Khutiya, Ram Singh with farsa, Chotya with sword, Pappu with axe and Sitaram with a .12 bore gun. Appellant Deendayal gave a Khutiya blow on the head from behind which fell on temporal region, Chotya gave a sword blow on the head and blood started oozing out. After that Ram Singh inflicted a farsa blow on the neck and Pappu gave an axe blow on the chin and Kadya inflicted injury on palm of his hand, thus, had proved the contents of the written complaint. The deposition of Ramcharan (PW.1) finds corroboration from the medical evidence adduced by the prosecution and the statement of 22 Dr. R.K. Sharma (PW.5) thus negatives the element of concoction.
(32) Next contention of the learned counsel for the appellants is that the eye-witnesses are real brothers and brother-in-law of the deceased since were interested witness, therefore, there testimony are not reliable and requires minute analysis.
(33) In this context firstly as against the arguments it is a settled law "Related" is not equivalent to "interested". A witness may be called "interested" only when he/she derives some benefit from the result of a litigation, in the decree of a civil suit or in seeing an accused person punished. A witness who is a natural one and is the possible eyewitness in the circumstances of a case cannot be said to be "interested" and secondly starting from lodging of the complaint by Ramcharan (PW.1), recording of statements of all the eyewitnesses u/s 161 Cr.P.C. and there deposition before the Court, except for minor discrepancies, their version were consisting and inspires confidence. It is also true that from rustic villagers like the complainants herein it is not excepted to have a photogenic/photographic memory of the incident also when their statements before the Court were recorded after 2 to 3 years of the incident. Thus, this argument is misplaced and is hereby rejected. The above principle is laid down in the case of State of Rajasthan Vs. Kalki, (1981) 2 SCC 752 is consistently followed by the Hon'ble Supreme Court in State of A.P. Vs. S. Rayappa, (2006) 4 SCC 512, Ashok Kumar Chaudhary Vs. State of Bihar, (2008) 12 SCC 173, State of U.P. Vs. Kishanpal, (2008) 23 16 SCC 73, Maranadu Vs. State, (2008) 16 SCC 529, Sahabuddin Vs. State of Assam, (2012) 13 SCC 213, Sudhakar Vs. State (2018) 5 SCC 435, Laltu Ghosh Vs. State of W.B. (2019) 15 SCC 344 and Mohd. Rojali Ali Vs. State of Assam, (2019) 19 SCC 567.
(34) Next contention of the learned counsel for the appellants that since the maker of the F.I.R. (Ex.D/1), Purushottam was not examined by the prosecution, but was examined as a Court Witness (CW-1), creates a serious suspicion over the demeanor of the prosecution and indicates that to save the real culprits, on the basis of some false information (Ex.P/1) had implicated the present appellants. It is a trite principle of law that the first information report is never treated as a substantive piece of evidence. It can only be used for corroborating or contradicting its maker when he appears in Court as a witness. In the present case, the maker of the F.I.R Purushottam was examined as a Court witness and was cross-examined on behalf of the appellants. The first information report can only corroborate/discredit the testimony of the maker thereof. It can by no means be utilized for contradicting or discrediting the other witnesses who obviously could not have any desire to spare the real culprit and to falsely implicate an innocent person. In the present case it is evident that F.I.R just disclosed commission of a cognizable offence and vide Ex.P.1 entire facts were placed before the police and the contents thereof were duly proved by Ramcharan (PW.1) and evidence of other eye-witnesses were in corroboration thereof. Thus, no 24 benefit could be served out by the appellants of non-examination of Purushottam as prosecution witness.
(35) Another contention of the learned counsel for the appellants that the soil recovered from the spot did not contain blood stains is concerned, the argument has no force as the Investigating Officer Raghvendra Rishishwar (PW-9) in para 6 of his statement had collected blood stained soil Ex. P/24 from the spot and this statement had not been challenged in cross or any explanation had been sought. A specific question was further asked to S.C. Pateriya (PW.8) the IO, that the soil was not blood stained instead red color was mixed with the soil, due to which no positive report was received from FSL, to this the witness had denied. In the FSL report Ex.P.20 blood stains were found in the soil marked as Ex.
"B" & "C" and only blood group could not be ascertained due to its disintegration.
(36) With regard to the contention of the learned counsel for the appellants that one "Rajai" was found on the spot over the dead body, which indicates, deceased had gone on the spot in the night itself, as in village when the villagers go on to the fields in the night to guard the crops they usually take "Rajai" as it is cold in open and further there is no explanation by the prosecution as to why there were no blood stains on the said "Rajai" even though it was found over the dead body, this is indicative of the fact that deceased was killed in the night itself by some unknown persons as had been mentioned in the F.I.R. This contention on the part of 25 the appellants has no force for the simple reason that presence of "Rajai" on the spot doesn't lead to anywhere and even if it is assumed that the source of "Rajai" could not be proved by the prosecution, it would not damage the case of the prosecution and also it is worth noting that if the deceased would have been murdered in the intervening night of 01-02/11/1995 then looking to the injuries on the person of the deceased, the " Rajai" (quilt) would have been torn to pieces. Also Siyaram (PW.2) in his statement had deposed that he after returning to the scene of incident had put Rajai/quilt over the dead body & he had not been further interrogated on this point.
(37) With regard to contention of the learned counsel for the appellants that since the weapons seized from the appellants were not sent for FSL, the entire prosecution story cascades, as the very seizure become doubtful and since this infirmity is a serious lapse on the part of the prosecution, the benefit of same deserves to be given to the appellants and they be acquitted. We are not agreeable with the aforesaid contention as any lapse on the part of the Investigating Officer would not prove fatal to the entire prosecution story, when there were other clinching evidence available on record. There was a prompt F.I.R. about a cognizable offence, statements u/s 161 Cr.P.C. were promptly recorded, seizure of weapons from the accused persons were duly proved by the S.C. Pateriya (PW.8), in the statements u/s 161 Cr.P.C. specific overtact of the appellants with specific use of weapons by each of them causing injuries on various parts of the body were 26 mentioned, the injuries were corroborated by the postmortem report and proved by the Doctor, the soil and the cloths of the deceased recovered from the spot and sent to FSL were blood soaked, coupled with the fact the statements of the eyewitnesses remained undaunted during their Court statement, a mere lapse on the part of the Investigating Officer in not sending seized weapons for F.S.L. would not tumble the entire prosecution case.
In the matter of Gulab Vs. State of Uttar Pradesh reported in 2021 SCC Online SC 1211, the Hon'ble Supreme Court in a case where a gun seized was not send for FSL had opined that examination of a ballistic expert is not an inflexible rule in case involving use of lethal weapon and failure to produce a report of the ballistic expert who can testify to the fatal injuries being caused by a particular weapon is not sufficient to impeach the credible evidence of the direct eyewitnesses. Thus, non-sending of the seized weapons would not dislodge the entire prosecution case. (Reference be also had to Dhanaj Singh Vs. State of Punjab (2004) 3 SCC 654, State of Punjab Vs. Hakam Singh (2005)13 SCC 795 and Mano Singh Vs. State of Tamil Nadu 2007(13) SCC 795) (38) The next question for consideration is whether statement of Doctor with regard to time of death as within 38 hours of the postmortem, falsify the version of complainant as contained in Ex.P/1 and creates serious doubt over the prosecution story, since it supports the version of time mentioned in the F.I.R is intervening night of 1-2/11/1995 and not that mentioned in 27 Ex.P.1 the written complaint of 7:00 a.m. According to the Dr. R.K. Sharma (PW-5), when he had examined the dead body rigor mortis had not started diminishing, it was present in the body. He further stated that rigor mortis set in the dead body after about 6 to 8 hours after the death and to reach from the leg to head, it would take 32 to 42 hours and thereafter, it would gradually diminish in the reverse direction i.e. from head to leg after about 48 hours and on this basis when he examined the body of the deceased, he found the rigor mortis had not reversed. By this process he came to the conclusion that the death in question must have occurred about 38 hours before post mortem.
(39) In the said context we would like to refer Modi's Medical Jurisprudence and Toxicology, Taylor's Principles and Practice of Medical Jurisprudence and Jhala & Raju's Medical Jurisprudence (by Dr. R.K. Jhala and V.B. Raju). Modi in his Medical Jurisprudence (21 st Edition at page 171) writes, Rigor mortis first appears in the involuntary muscles and then in the voluntary muscles. In the voluntary muscles rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extremities and lastly extends downwards to the muscles of the abdomen and lower extremities. Last to be affected are the small muscles of the fingers and toes. It passes off in the same sequence. Taylor in his book (13th Edition at page 143) under the caption 'The order in which rigor appears' states :-
28"As a rule, cadaveric rigidity first appears in the muscles of the face, neck and trunk; it then takes place in the muscles of the upper extremities and lastly in the legs...In regard to its disappearance the muscles of the lower extremities will often be found rigid, while those of the trunk and upper extremities are again in a state of relaxation. It appears later and lasts longer in the lower extremities than in other parts of the body."
In Jhala and Raju's Medical Jurisprudence (6th Edition at pages 256-257) it has been stated :-
"Rigor mortis is due to rigidity of the muscles. It appears both in the voluntary as well as involuntary muscles, its appearance and disappearance in various muscles follows a pattern. It is apparent first in the region of head, face, neck, eyelids and lower jaw. It last shows its appearance in the lower extremities. Hence if rigor mortis is present in lower extremities, it can safely be opined that it is present all over...After the rigor mortis has set in the whole body (as confirmed from its presence in lower extremities) no specific opinion is possible till the time it starts disappearing i.e. after about 18 hours.
(40) It would, thus, appear that all the authorities on the subject are unanimous in their opinion that rigor mortis sets in and reaches the 'extremities 'at the end and that it follows the same pattern both in the matter of appearance and disappearance.29
Presence of rigor mortis by itself cannot be decisive of the time of death. It is true that on the basis of presence of rigor mortis, no opinion can be given with mathematical precision regarding the time of death. At the same time, in view of the undisputed position regarding the 'course' of appearance and disappearance of rigor, its presence in the entire body does provides a sound basis to find out the probability or otherwise of the prosecution case regarding time of death. The process of appearance and disappearance of rigor mortis may take relatively shorter and longer time depending on various factors like temperature, season, etc., of the place of death.
(41) In the present case the time of death of the deceased has been disputed on the ground that at the time of post-mortem of the dead body of the deceased which took place on 03.11.1995 at 7:00 a.m., the rigor mortis was present in the body and therefore the learned counsel for the appellants has submitted that the death of the deceased had not taken place at 7:00 a.m on 02.11.1995 but sometimes in the night of 01-02/11/1995. Jhala & Raju in their medical jurisprudence have held that rigor mortis usually is absent after about 36 hours but the period may be longer in cold weather and for other reasons. As per Taylor the dead body becomes limp after 36 hours of death. As per Modi also the rigor mortis passes off from dead body after 36 hours of death.
(42) In the case of Virendra @ Buddhu and another Vs. State of U.P., 2008 (15) SCALE 283, the Hon'ble Apex Court doubted the prosecution case where the rigor mortis was present in the 30 lower extremities at the time of post mortem conducted after 30 hours when death was alleged to have taken place more than 48 hours of ago. The relevant paragraph is as follows:-
"Moreover, the doctor who conducted autopsy on the dead body on 06.10.1979 at 4.30 p.m., in the report has mentioned that rigor mortis had passed through upper extremities and was present in lower extremities. It is mentioned at page 125 of Modi's Medical Jurisprudence and Toxicology, Edition 1977 that in general rigor mortis sets in 1 to 2 hours after death, is well developed from head to foot in about 12 hours, is maintained for about 12 hours and passes off in about 12 hours. In the instant case rigor mortis was present in lower extremities at the time autopsy was conducted on the dead body after 30 hours. As according to ocular testimony deceased was murdered on 05.10.1979 at about 10.00 a.m. and the doctor conducted autopsy on the dead body on the next day at about 4.30 p.m. after 30 hours of death but rigor mortis was found present in lower extremities. Had he died on 04.10.1979 at about 10.00 p.m. or so rigor mortis would have passed off from the dead body completely at the time of autopsy. Thus, the ocular testimony that he was murdered on 05.10.1979 at about 10.00 a.m. stands corroborated from the medical evidence pin-pointing that rigor mortis was present in lower extremities at the time when the autopsy was conducted on the dead body after 30 hours."31
From the above consideration, it is clear that the time of death mentioned by the Doctor within 38 hours of postmortem, would not infer that the death of deceased Khemraj had occurred in the intervening night of 01-02/11/1995, since rigor mortis was found over the body, which according to medical jurisprudence, starts subsiding after 24 hours and passes off after 36 hours. Thus, there is no force in the contention of learned counsel for the appellants and is hereby rejected. The judgments relied upon by the learned counsel for the appellants since based upon the facts which are not akin to the present one are misplaced and are not applicable.
(43) On the basis of the aforesaid discussion, it is evident that as per the medical evidence, the death of the deceased was homicidal in nature and caused by means of deadly weapons and ocular evidence is corroborated by medical evidence. The motive of the accused which emerges from the statement of Ramcharan (PW-1), Siyaram (PW-2), Ramsingh (PW-3) and Siyaram s/o Bajanglal (PW/7) is that there were some previous hostility between the parties in consequence thereof some criminal cases were registered against the complainant party and deceased Khemraj at the behest of the appellants, in furtherance of which this heinous crime was committed by them. They being members of an unlawful assembly consisting of not less than five persons and in furtherance of their common object, armed with deadly weapons like Khutiya, sword, axe and a .12 bore gun reached the spot and caused injuries to the deceased, which were sufficient to cause death of the deceased in the ordinary course of nature.
32(44) In view of foregoing analysis, in our view, the Court below has appreciated the evidence on permissible legal parameters and reached to a plausible conclusion and the prosecution could establish its case beyond reasonable doubt. Thus, we find no reason to interfere in the impugned judgment. Resultantly, both these appeals fail and are hereby dismissed. We accordingly hereby confirm the conviction of the appellants recorded under Section 148, 302/149 of the IPC. Since the appellants are on bail, there bail bonds stand cancelled. They are directed to surrender before the Trial Court concerned for serving the remaining part of the jail sentence. Appellants are hereby directed to appear before the learned Trial Court on 2nd September, 2022. On their surrender before the learned Trial Court, the learned Trial Court will send them to jail. It is further made clear that in case appellants fail to appear on 2nd September, 2022 the learned Trial Court shall issue arrest warrants against these appellants as well as notice may also be issued to their sureties and may pass necessary orders in that regard. The Registry is hereby directed to send the bail bonds papers to learned Trial Judge so as to enable it to send notice to the sureties in case appellants do not surrender before it. Photocopies of papers of bail bonds may be kept in the record of this file. The learned Trial Judge is further directed to intimate the Registry of this Court after the appellants are sent to jail to serve out the sentence.
(45) The Registry is directed to send a copy of this judgment immediately alongwith the record to the learned Trial Court, for 33 information and necessary compliance.
(46) A copy of this judgment shall be placed in the record of connected Criminal Appeal No.108 of 2001 (Chhotya @ Chhotelal and another Vs. State of M.P.).
(Rohit Arya) (Milind Ramesh Phadke)
Judge Judge
03/08/2022 03/08/2022
Pawar/-
ASHISH
PAWAR
2022.08.04
11:18:11
+05'30'