Madhya Pradesh High Court
Kamlesh vs The State Of Madhya Pradesh on 11 April, 2019
1 Criminal Appeal Nos.825/04, 46/05 & 1201/15
High Court of Madhya Pradesh
Bench at Gwalior
DIVISION BENCH : Hon.Shri Justice Sanjay Yadav &
Hon.Shri Justice Vivek Agarwal
Criminal Appeal No.825/2004
Ashok Singh & Ors. ...... Appellants
Vs.
State of M.P. .....Respondent
&
Criminal Appeal No.46/2005
Rajveer ...... Appellant
Vs.
State of M.P. .....Respondent
&
Criminal Appeal No.1201/2015
Kamlesh ...... Appellant
Vs.
State of M.P. .....Respondent
--------------------------------------------------------------------------------
Shri Pradeep Katare, learned counsel for the appellants in Criminal
Appeal No.825/2004 and Shri A.K.Jain, learned counsel for the
appellants, in Criminal Appeal Nos.46/2005 and 1201/2015.
Shri Pratip Visoriya, learned Public Prosecutor for the State.
--------------------------------------------------------------------------------
Whether approved for Reporting :
JUDGMENT
(Delivered on this 11th day of April, 2019) Per Justice Vivek Agarwal :
At the outset, it is submitted by the learned counsel for the appellants that in Criminal Appeal No.825/2004 appellant No.3-
2 Criminal Appeal Nos.825/04, 46/05 & 1201/15 Bholasingh son of Balveer Singh has died, and therefore, his name has been deleted.
2. Criminal Appeal Nos. 825/04 and 46/05 have been filed by the appellants being aggrieved by the judgment dated 6.11.2004 passed in Sessions Case No.212/01 by the Court of Sixth Additional Sessions Judge (Fast Track Court), Bhind, wherein criminal trial was initiated against seven accused persons. One Nahar Singh was acquitted vide judgment dated 6.11.2004 and later on absconding accused Sipahi Ram @ Sipahilal too was acquitted by the learned Additional Sessions Judge vide judgment dated 2.12.2004. Appellants in Criminal Appeal Nos.825/04 and 46/05 have been convicted under Section 302/149 of IPC with life imprisonment and fine of Rs.1,000/-. Appellants Rajveer and Satyabhan have also been convicted under Section 148 of IPC with two years RI and appellant Ashok has been convicted under Section 147 of IPC with two years RI. Similarly, appellant- Kamlesh has been convicted vide separate judgment dated 17.11.2015 passed by the Court of 4 th Additional Sessions Judge, Bhind, under Section 302 read with Section 149 of IPC with life imprisonment and fine of Rs.50,000/- and in default of payment of fine further one year RI. He has been further convicted under Section 148 of IPC with two years RI with fine of Rs.1,000/- and in default of payment of fine further RI of three months.
3. It is submitted that appellants Ashoksingh, Satyabhan and 3 Criminal Appeal Nos.825/04, 46/05 & 1201/15 Rajveer are on bail, whereas earlier Rajveer was in custody from 24.6.2001 to 7.4.2004, Ashok was in custody from 24.6.2001 to 16.5.2002 and Satyabhan was in custody from 26.7.2001 to 23.7.2002. Kamlesh was in custody from 15.8.2001 to 13.5.2002 and now he is in custody since 14.4.15.
4. As per prosecution story, incident took place on 8.6.2001 and Dehati Nalishi (Ex.P/2) was lodged on 9.6.2001 at about 9.30 am.
5. It is prosecution's case that deceased is Bramhjeet and his father Mahaveer Singh (PW-5) is the author of Dehati Nalishi (Ex.P/2). As per Mahaveer Singh (PW-5) he had visited village Lavan alongwith his nephew Santosh (PW-14) in the morning of 8.6.2001 so to meet the Panchayat Secretary. He reached the village in the morning via Bhind on a Tanga and asked priest of the temple as to the whereabouts of the Secretary and then they were sitting at the temple only, when at about 12-12.30 noon accused Bhole, Pappu, Ashok and his son Bramhjeet came there and when he asked his son Bramhjeet as to why he has come there, he could not ascribe any just cause. After sitting there for some time, all four went towards the village, but Mahavir (PW-5) and Santosh (PW-14) continued to sit at the temple. When it became dark, then he asked Santosh to look for Bramhjeet and others and then they visited the village close to the temple where they saw that at the gate of Kamlesh accused Bhole, Pappu, Ashok, 4 Criminal Appeal Nos.825/04, 46/05 & 1201/15 Kamlesh and Rajveer were sitting with Bramhjeet and consuming liquor. He asked Bramhjeet to accompany him to the home but Bramhjeet said that he will come after some time. It is mentioned that mouser gun of Bramhjeet was in possession of Bhole, whereas Pappu was also having a 12 bore gun. Mahavir (PW-5) asked Bhole to give him the gun when Bhole informed him that he will bring the gun and this witness should not worry. It is further mentioned that Mahavir (PW-5) and Santosh (PW-14) thought that since the accused party and Bramhjeet were intoxicated and they may not indulge in any fight and left the place where liquor was being consumed and started waiting for Bramhjeet close to the block. At about 8.30 pm accused persons and Bramhjeet started moving towards village Bhatmaspura and at that point of time, Bhole was armed with mouser gun of Bramhjeet, Pappu was having his 12 bore gun, whereas Kamlesh and Rajveer were wielding axes and Ashok was bare handed. Mahavir (PW-5) and Santosh (PW-14) started following them and after walking a distance of one and half kms accused party alongwith Bramhjeet entered in the farm of Dheer Singh, where Ashok exhorted to kill Bramhjeet and then all the accused started beating Bramhjeet and he was thrown on the floor. Thereafter, Rajveer and Kamlesh hit Bramhjeet with axes. Complainant party out of fear came running to their village Bhatmaspura and on way narrated this incident to Sahab Singh (PW-2) and Purushottam (PW-9).
5 Criminal Appeal Nos.825/04, 46/05 & 1201/15
6. Learned counsel for the appellants submits that conduct of Mahavir (PW-5), father of the deceased, and Santosh (PW-14), brother of the deceased, is suspicious. It is submitted that as per their own admission they had given intimation of the incident to Sahab Singh (PW-2) and Puroshottam (PW-9). People armed with Lathi and guns collected at the residence of Mahavir (PW-5) after hearing such incident at the night of the incident itself. None of them chose to visit either the place of incident to take care of deceased Bramhjeet or to report the matter to the police. It is also submitted that there was no source of light and that is an additional factor which renders the testimony of Mahavir (PW-5) and Santosh (PW-14) as doubtful.
7. It is further submitted that though it is mentioned in the testimony of Mahavir (PW-5) that he has asked Sahab Singh (PW-
2) to lodge a report but Sahab Singh refused to visit police Station at night and then it has been mentioned by Sahab Singh that it was Purushottam (PW-9) who had lodged a report over telephone from a local STD PCO in the morning of next day i.e. 9.6.2001 when police arrived there, but the fact is that Puruhottam has not corroborated evidence of Sahab Singh (PW-2) regarding giving intimation to the police, whereas M.P.Sharma (PW-8), T.I. Dehat Bhind, has mentioned that on 9.6.2001 he was posted as SHO of police Station Dehat and had gone for patrol of the area in village Bhatmaspura where he received intimation about death of one 6 Criminal Appeal Nos.825/04, 46/05 & 1201/15 person. When he reached the scene of crime, Mahavir (PW-5) lodged a report on which Dehati Nalishi was recorded which contains his signatures from B to B part. It is submitted that there is no Rojnamacha Sanha to corroborate that any report was lodged by Sahab Singh (PW-2) or Purushottam (PW-9), therefore, it is apparent that none of the witnesses i.e. Mahavir (PW-5) and Santosh (PW-14) saw the incident and it is in fact after discovery of the dead-body by M.P.Sharma (PW-8) they have been planted as eye-witnesses.
8. It is further submitted that when conduct of Mahavir (PW-5) and Santosh (PW-14) is corroborated, then it is apparent that in para 44 of his cross-examination Mahavir (PW-5) has contradicted himself. In his examination-in-chief para 11 he has mentioned that Sahab Singh and Purushottam, who is son of his sister, had gone to police Station, Dehat, to lodge a report. Thereafter, they had gone close to the dead-body when police arrived. In para 44, he has mentioned that he had seen the police from his own Chabutara that it was going towards the scene of crime and then he also followed them and till that time when he saw the police, he was sitting in his house only. Reading such part of evidence of Mahavir (PW-5) it is pointed out that during summer sun rises early in the morning at about 5 am and even if it is presumed that due to night it being a dacoity infested area, Mahavir (PW-5) and Santosh (PW-14) alongwith Sahab Singh (PW-2) and Purushottam (PW-9) could not 7 Criminal Appeal Nos.825/04, 46/05 & 1201/15 visit police Station as has been mentioned by learned Additional Sessions Judge in his judgment, but there was no justification for not acting promptly as soon as sun rises and this gives credibility to the proposition that Mahavir (PW-5) and Santosh (PW-14) have been planted as eye-witnesses subsequently.
9. To support their above-mentioned contention, attention of this Court is drawn to para 13 of deposition of Mahavir (PW-5) who has admitted that Puran of village Lavan was absconding and police had declared a prize of Rs.5,000/- over his head. He was killed by the police in an encounter as per the intimation given by Bramhjeet. After death of Puran, his brother Nahar was absconding and about six months prior to the present incident Nahar Singh had surrounded Bramhjeet and fired a gunshot when Bramhjeet could escape and save his life. It is also submitted that again in the month of Baisakh (as per the Gregorian calendar almost corresponding to the month of April-May) when Bramhjeet was working on a thresher, Nahar Singh had again fired a gunshot at Bramhjeet. Reading such deposition, it is pointed out that Bramheet was having several enemies as he was an informant of the police and the villages in question are dacoity affected areas, therefore, it was some unknown person who had killed Bramhjeet due to his proximity with the police as an informant and Mahavir (PW-5) and Santosh (PW-14) have framed a false story so to falsely implicate the present accused persons.
8 Criminal Appeal Nos.825/04, 46/05 & 1201/15
10. It is also submitted by the learned counsel for the appellants that no independent witness has been examined in the case. Raghuveer Das (PW-15) with whom Mahavir (PW-5) and Santosh (PW-14) had met at the temple has not supported prosecution case. It is also submitted that distance between village Lavan and village Bhatmaspura is about two and a half kms and if Secretary was not available at village Lavan, then there was no occasion for Mahavir (PW-5) and Santosh (PW-14) to have waited for the whole day for him and as per rural traditions they should have returned back to their house latest by evening (prior to sun set) instead of waiting for the incident to take place with fall of night.
11. It is also pointed out by learned counsel for the appellants that Mahavir (PW-5) has admitted in his cross-examination that he had not seen as to which of the assailant had attacked which part of the body and who had attacked first and who followed the first assailant. It is also submitted that this part of his testimony conclusively proves that Mahavir (PW-5) and Santosh (PW-14) are not the eye-witnesses and they have been planted as eye- witnesses so to falsely implicate the present appellants.
12. Shri Jain learned counsel for the appellants in criminal appeal Nos46/05 and 1201/15 points out that presence of hairs of the deceased as per seizure memo (Ex.P/5) is not corroborated and there is no DNA examination to show that such hairs were in fact that of deceased Bramhjeet. It is also submitted that as per 9 Criminal Appeal Nos.825/04, 46/05 & 1201/15 postmortem report (Ex.P/1) given by Dr. U.P.S. Kushwaha (PW-1) rigor mortis had passed. It is pointed out that it takes more than 24 hours for rigor mortis to pass on whereas postmortem was conducted at 11.30 am on 9.6.2001 vide Ex.P/1 and incident reportedly took place on 8.6.2001 at about 9 pm, and therefore, even from the postmortem report death of Bramhjeet at about 9- 9.30 pm is not corroborated. It is submitted that it appears that death had taken place earlier in the day time and whole incident has been so intricately woven in a story so to depict that such incident had taken place at 9.30 pm.
13. Learned counsel for the appellants have placed reliance on the judgment of the Supreme Court in the case of Sarvesh Narain Shukla Vs. Daroga Singh and others as reported in (2007) 13 SCC 360 equivalent citation (2009)1 SCC (Cri) 188 to support their case that since there is delay in FIR, then the presumption that it was ante-dated and ante-time will come into picture. It is also submitted that even evidence of hostile witnesses should not be rejected outrightly and parties are entitled to rely on such part of evidence which assists their case. It is submitted that the whole proceeding of FIR has been manipulated and in fact death had occurred much earlier but after seeing the spot things have been framed in such a manner so to fit in the scene of crime.
14. Reliance has also been placed on the judgment of the Supreme Court in the case of Thangavelu vs. State of T.N. as 10 Criminal Appeal Nos.825/04, 46/05 & 1201/15 reported in (2002) 6 SCC 498 wherein it has been held in para 5 that if there is a strong possibility that death of the deceased person could have occurred before the postmortem i.e. much prior to the time suggested by the prosecution in the postmortem and this doubt regarding the time of death is reasonable, then the prosecution case should fail straight away.
15. Reliance has also been placed on the judgment of the Supreme Court in the case of State of Tamil Nadu Vs. Zubair Alias Mohamed Zubair and others as reported in (2008) 16 SCC 319 to point out that in fact Mahavir (PW-5) and Santosh (PW-14) were chance witnesses and their conduct is unnatural and unbelievable and their presence at the time of occurrence is also doubtful, and therefore, their testimony should not be accepted.
16. Learned Public Prosecutor on the other hand submits that in para 19 of the judgment learned trial Court has discussed the reason for not lodging the FIR or not visiting the police Station at night and such reason which has been assigned taking into consideration reality of the area cannot be discarded. It is also submitted that as far as Sahab Singh (PW-2) is concerned, his evidence has to be read in totality because he has clearly deposed that at about 7.30 am he had visited Daboha crossing alongwith Purushottam (PW-9) and given intimation to Dehat Police Station from STD booth and such call was made by Puruhottam. This evidence fulfills the requirements of Section 6 of the Evidence 11 Criminal Appeal Nos.825/04, 46/05 & 1201/15 Act and therefore, it can be relied on. The presence of hair of deceased Bramhjeet can be presumed from the fact that a fight and scuffle had taken place before Bramhjeet was thrown on the floor and was hit by the accused with their axes.
17. Learned Public Prosecutor has placed reliance on the judgment of the Supreme Court in the case of Subal Ghorai and others vs. State of West Bengal as reported in (2013) 4 SCC 607 wherein in para 39 it has been held that it is true that prosecution has relied on the evidence of interested witness but interested witness is not necessarily a bad witness. In fact, if the witness is related to the deceased, there is less chance of his leaving aside the real assailants. The evidence of interested witness has to be analyzed with care. But, once the Court comes to the conclusion that it is truthful and in accord with the relevant circumstances on record, the Court should not hesitate to accept it and record conviction on the basis thereof.
18. Learned Public Prosecutor further relied on the judgment of the Supreme Court in the case of Dalip Singh and others v. The State of Punjab as reported in AIR 1953 SC 364 to submit that lodging of the FIR and its timing is to be seen in the context of geosocial reality of the area and the distance of the police Station from the place of incident. It is submitted that in case of Daleep Singh the delay in FIR was about six and a half hours but looking to the distance to the police Station which was required to be 12 Criminal Appeal Nos.825/04, 46/05 & 1201/15 covered partly on foot and partly by lorry to lodge a report after the occurrence was held to be prompt. It is submitted that it is the overall situation and the facts of the case which are to be taken into consideration and merely because FIR was not lodged on the same night but in the next morning will not throw out the case of the prosecution. It is submitted that in fact learned Additional Sessions Judge has taken into consideration this fact that the place of incident and the surrounding villages are dacoity infested areas and no prudent man at the cost of his own life would like to venture out at night to lodge a police report, specially when there is lack of public transport at that point of time in rural areas. It is also submitted that intimation was given in the very next morning and that was sufficient compliance and on this ground case of the prosecution cannot be thrown out.
19. The issue which emerges for our decision is as to whether the learned Additional Sessions Judge was correct in appreciating the evidence which has come on record in recording a conviction for all the appellants ?
20. It is now well settled that principle of falsus in uno falsus in omnibus is not applicable in India, therefore, testimony of each of the witnesses is to be examined carefully. Admittedly there are two eye-witnesses Mahavir (PW-5) and Santosh (PW-14), father and cousin brother of the deceased, and their testimony is most important. At the same time, testimony of village priest i.e. 13 Criminal Appeal Nos.825/04, 46/05 & 1201/15 Raghuveer Das (PW-15) though hostile is to be read to connect the sequence of events as have been narrated by Mahavir (PW-5) and Santosh (PW-14).
21. Raghuveer Das (PW-15) has admitted that the godown from where Secretary distributes wheat is in front of his temple. In fact, he has admitted in para 4 that such godown is in his land itself. Therefore, one part of the prosecution story that Mahavir (PW-5) and Santosh (PW-14) had gone to village Lavan to meet the Secretary is corroborated because this prosecution witness though turned hostile has admitted that said Secretary distributes wheat from a godown which is situated opposite to the temple and on his own land.
22. Mahavir (PW-5) has categorically deposed that it was Kamlesh and Rajveer who were armed with axe. This part of the deposition of Mahavir that Rajveer and Kamlesh were armed with axe and Ashok was bare handed has not been contradicted in any part of his cross-examination. It is an admitted position that Ashok was bare handed and Satyabhan @ Pappu alongwith Bhola (since deceased) were wielding guns.
23. As per the postmortem report (Ex.P/1) following injuries were found on the body of deceased Bramhjeet :-
"1. Incised wound, back of neck, at the level of ears horizontally placed, 14x 4x 5 cm, cutting all structures upto bone. Vertebrae also cut apart. Margins clean cut.
2. IW 8 x 2 x brain deep wound left side of head, 14 Criminal Appeal Nos.825/04, 46/05 & 1201/15 cutting brain matter.
3. I.W. 5 x 2 x bone deep left side of head.
4. I.W. 6 x 2 x 2 cm, below injury No.1."
Thus, it is clear that there was no gunshot injury on the body of the deceased. There are no other injury marks except for four incised wounds pointed out by Dr. U.P.S. Kushwaha (PW-1), therefore, that part of the prosecution story that deceased Bramhjeet was beaten and thrown on the floor does not get corroboration because there were no contusions and bruises on the body of deceased Bramhjeet as per the medical evidence. Since there is also no gunshot injury, no role can be ascribed to the holders of gun, namely Satyabhan @ Pappu, deceased Bhola Singh and even Ashok, who was admittedly bare handed, therefore, their conviction with the aid of Section 149 of IPC cannot be sustained specially in view of the evidence which has been given by Mahavir (PW-5) and Santosh (PW-14) that in fact Bramhjeet was good friend of these accused persons. It is the prosecution's case that they had visited the temple in the morning hours and met Mahavir (PW-5) and Santosh (PW-14), then Mahvir and Santosh saw them consuming liquor at the Chabutara in front of the house of accused Kamlesh and at this point of time also there was no scuffle or hot talk or fight reported by the prosecution witnesses. Therefore, story takes a turn when Bramhjeet started going towards Bhatmaspura, then on field of Dheer Singh he was attacked. What was the provocation for such attack except alleging 15 Criminal Appeal Nos.825/04, 46/05 & 1201/15 old enmity, that too with Nahar Singh, has not been explained. The accused who was charged to have enmity with Bramhjeet namely Nahar Singh whose brother was killed in a police encounter as per the intimation given by Bramhjeet has been acquitted. No casual or direct connection could be established by the prosecution between Nahar Singh and other accused persons, namely Kamlesh, Satyabhan, Ashok and Raghuveer and in view of such facts, the theory of old enmity with Bramhjeet being a police informer also gets discarded. This leads to a single conclusion that all the accused and the deceased were under the influence of alcohol and at the spur of moment something so happened that a fight took place between the accused armed with axes and the deceased resulting in unfortunate death of deceased Bramhjeet.
24. Section 141 of IPC defines unlawful assembly as an assembly of five or more persons if the common object of the persons composting that assembly is to overawe by criminal force, or show of criminal force, or to resist the execution of any law, or of any legal process or to commit any mischief or criminal trespass or by means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right or to compel any person to do what he is not legally bound to do, or to omit to 16 Criminal Appeal Nos.825/04, 46/05 & 1201/15 do what he is legally entitled to do. When in this context it is seen, then it is evident from seizure memo (Ex.P/6) that a 12 bore gun of the deceased was found from the spot. Since none of the ingredients of Section 141 of IPC are present and this fact has not been appreciated by the learned trial Judge, mere presence of five persons cannot be termed as unlawful assembly. As the ingredients of Section 141 of IPC are missing and also common object could not be established, therefore, provisions of Section 149 of IPC will not be applicable and individual act is to be seen because in absence of common object individual act is to be referred to.
25. In view of such facts, when individual act is seen, then Mahavir (PW-5) and Santosh (PW-14) both have admitted that they had not seen that who had given blow on the body of the deceased first but as has been discussed above since appellants Rajveer and Kamlesh were wielding axes and the injuries on the body of Bramhjeet are corroborated by medical evidence to be caused by a sharp cutting object like axe and both Kamlesh and Rajveer had attacked the deceased with an axe, therefore, it can be safely inferred that the persons responsible for death of Bramhjeet are appellants Kamlesh and Rajveer and appellants Ashok Singh, Satyabhan and Bhola have been wrongly implicated in absence of common object. Therefore, this Court records a finding of acquittal in favour Ashok Singh son of Raghuraj Singh, Satyabhan @ Pappu son of Ramnaresh Singh Tomar and Bhola Singh son of 17 Criminal Appeal Nos.825/04, 46/05 & 1201/15 Balveer Singh and as far as appellants Rajveer and Kamlesh are concerned, their conviction under Section 302/149 of IPC is modified and instead they are convicted under Section 302 of IPC with the same sentence as awarded by the learned trial Court. However, their conviction under Section 148 of IPC is set aside as there was no unlawful assembly. Our view finds support from the law laid down by Hon'ble Supreme Court in the case of Kikar Singh Vs. State of Rajasthan as reported in AIR 1993 SC 2426 wherein it has been held that when a person during the course of a sudden fight, without premeditation and probably in the heat of passion, took undue advantage and acted in a cruel manner in using a deadly weapon, there was no ground to hold that his act did not amount to murder. It has been further held that therefore, if the appellant used deadly weapons against the unarmed man and struck him a blow on the head, it must be held that he was using the blows with the knowledge that they would likely to cause death and he had taken undue advantage. He did not stop with the first blow, he inflicted two more blows on the fallen man and the third one proved to be fatal. He acted cruelly with no justification. By his conduct the appellant denied himself of the benefit of Exception 4 to Section 300 of IPC.
26. Consequently, Criminal Appeal No.825/2004 is allowed and conviction of the appellants under Sections 302/149 and 147/148 of IPC is set aside and they are acquitted. The appellants are on 18 Criminal Appeal Nos.825/04, 46/05 & 1201/15 bail, their bail bonds shall stand discharged. However, Criminal Appeal Nos.46/2005 and 1201/15 are dismissed and conviction of appellants under Section 302/149 of IPC is modified and instead they are convicted under Section 302 of IPC with the same sentence as awarded by the learned trial Court. It has come on record that appellant Kamlesh is in custody and appellant Rajveer is on bail vide order dated 16/12/2011 after suffering near about 15 years jail sentence. Appellant Rajveer is directed to surrender before the trial Court on or before 30 th April, 2019 to undergo his remaining jail sentence, failing which the trial Court will be at liberty to secure his presence through non-bailable warrant. Record of the trial Court be sent back.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
ms/-
MADHU
SOODAN
PRASAD
2019.04.12
14:53:16 -07'00'