Madhya Pradesh High Court
Mansingh vs The State Of Madhya Pradesh on 13 December, 2021
Author: Atul Sreedharan
Bench: Atul Sreedharan, Sunita Yadav
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MADHYA PRADESH HIGH COURT,
PRINCIPAL BENCH AT JABALPUR
Crl. A No. 482/09
Appellant : Om Prakash
Vs.
Respondent : State of Madhya Pradesh
AND
Crl.A No. 1154/09
Appellant : Mansingh & Anr.,
Vs.
Respondent : State of Madhya Pradesh
For the Appellants: Mrs. Nirmala Nayak, Ld. Counsel, Amicus
Curiae in Crl. A No. 482/09 and Mr. Akshay
Pawar, Ld. Counsel, Amicus Curiae in Crl. A
No. 1154/09.
For the Respondent : Mr. Piyush Bhatnagar, Ld. Panel Advocate in
Crl. A No. 482/09 and Crl. A No. 1154/09.
Coram: Hon'ble Mr. Justice Atul Sreedharan
Hon'ble Mr. Justice Sunita Yadav
JUDGEMENT
(13/12/2021) Per: Atul Sreedharan J.
The present appeals have been filed by the Appellants aggrieved by the judgement and order dated 17/02/09, passed by the Court of the Ld. Special judge (Scheduled Castes and Scheduled Tribes [Prevention of Atrocities] Act) Sehore in Special Case No. 13/2008, by which the Appellants were found guilty of an offence u/s. 302 r/w 34 IPC and sentenced to suffer rigorous imprisonment for life and a fine of Rs. 1000/- and an additional rigorous imprisonment for three months in default of fine. Om 2 Prakash is Appellant in Crl. A No. 482/09 (filed individually) and is Appellant No. 2 in Crl. A No. 1154/09, which is not permissible. Therefore, the Crl. A No. 1154/09 stands dismissed as not maintainable as against Appellant No. 2 Om Prakash and his Crl. Appeal No. 482/08, which is first in point of time shall be considered. Crl. A No. 1154/09 is being considered only for Appellant Mansingh. The Appellant Om Prakash was granted the benefit of suspension of sentence by order of this Court dated 24/06/09 and has been on bail ever since.
2. This appeal has a chequered history. The appeals were dismissed by an order dated 09/05/2019 passed by a co-ordinate bench of this Court. Against that order, the Appellant Om Prakash preferred a Special Leave Petition before the Supreme Court being Special Leave Petition (Crl.) No. 1365/2021 in which leave was granted and it was heard as Criminal Appeal No. 128/2021. The Supreme Court was of the view that the High Court did not return a finding on the statement of PW6 Deepak Sethi, who deposed in cross examination that when he asked PW1 Dev Anand (supposedly the sole eyewitness in this case) as to who had committed the murder of the deceased Mangilal, PW1 is stated to have told him that he does not know who has committed the murder of Mangilal. The Supreme Court held that the High Court ought to have dealt with the disclosure made by PW6 Deepak Sethi in his cross examination which was at conflict with the statement of PW1 Dev Anand. Therefore, the Supreme Court set aside the order dated 09/05/2019 passed by this Court and remanded the case for consideration afresh by taking into account the statement of PW6 and give reasons as to whether the 3 statement of PW1, that he had seen the incident as an eyewitness, was credible enough to sustain a conviction.
3. The brief facts of this case are as follows: as per the case of the prosecution, on 18/02/2008, the deceased Mangilal was murdered by the Appellants who bludgeoned his head and face with stones, near the dal mill of Chadtimal. The sole eyewitness to the incident is Devanand Chawariya. He is also the scribe of the FIR. The FIR is registered as Crime No. 91/08 at P.S. Ashtha, District Sehore, on 18/02/2008 at 12.45 PM. The date of the incident in the FIR is 18/02/2008 and the time of the incident is 11.30 AM. In the FIR, the Appellants are named as accused persons. The FIR is proved as Ex-P/1. In the FIR, the informant Devanand Chawariya (PW1) states that on the date of the incident, he had gone to meet Vinod Kumar (PW2) at the Raigarh Bank near the old Municipal Corporation. There, he met the deceased Mangilal sweeper who is his nephew by relation. Mangilal had come to the bank to withdraw Rs. 200/-. From there, PW1 says that the deceased and he were headed towards the liquor shop when on the way they met the Appellants Mansingh and Omprakash, friends of the deceased, and the three of them went to the liquor shop and started drinking. PW1 told Mangilal that he is drunk and that he should go home. Thereafter, the three of them started going towards the dal mill of Chadtimal. PW1 turned back and went behind them and he saw the Appellants bludgeoning Mangilal and when PW1 shouted to them to stop, the Appellants ran away from the scene of crime and Mangilal died on the spot.
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4. The Ld. Counsel/Amicus for Appellants Mansingh and Om Prakash has argued that the Appellants have been falsely implicated in this case and that they are innocent. Mrs. Nirmala Naik, Ld. Counsel and Amicus, appearing for the Appellant Om Prakash argued that the sole eyewitness in this case Devanand Chawariya (PW1) is not a credible witness as there are several discrepancies in his testimony. She has argued that the very genesis of the offence is doubtful as PW1 says that he had gone to the bank to take money from Vinod Kumar. However, Vinod Kumar (PW2) in his deposition does not mention that PW1 had come to him asking for money. She further says that PW2 and PW4 are the witnesses to the seizure. PW2, in his examination in chief has not supported the prosecution with regard to the disclosure by Appellant Mansingh and the recovery of his blood stained shirt. He was declared hostile and pursuant to cross examination by the Prosecutor, PW2 has supported the prosecution's case and has stated that the Appellant Mansingh has informed the police in his presence that he has hidden the shirt and thereafter, got the same seized in the presence of PW2. PW4 has emphatically stated in support of the prosecution with regard to the seizure of the blood stained shirt hidden by the Appellant Mansingh, but the Ld. Counsel for Om Prakash has said that PW4 cannot be believed as he is closely related to the deceased.
5. Ld. Counsel for Appellant Om Prakash has also argued that PW6 Deepak Sethi has demolished the case of the prosecution. She has submitted that the witness, in cross examination has stated "मैंने दे वानंद से पूछा था की ककसने मर्डर तो दे वानंद ने कहा था के मेरे को पता नह ं ककसने मर्डर 5 ककया है ।" (I asked Dev Anand as to who has committed the murder to which he replied I do not know who has committed the murder). The Ld. Counsel for Om Prakash has submitted that Dev Anand PW1 being the sole eyewitness, had informed PW6 that he did not know who committed the murder of Mangilal. She has further submitted that PW6 has not been declared hostile by the prosecution and neither has he been re-examined by the prosecutor in an attempt to seek clarification. In other words, Mrs. Nirmala Nayak, Ld. Counsel for the Appellant Om Prakash has submitted that the statement of PW6 is binding on the prosecution and the same renders the statement of PW1 highly doubtful and the benefit of that must go to the accused.
6. Mr. Akshay Pawar, Ld. Amicus Curiae appearing on behalf of the Appellant Mansingh has largely adopted the arguments of the Ld. Counsel for Om Prakash and has additionally placed several arguments for the consideration of this Court. He has argued that the entire investigation has been partisan and one sided. According to him, several independent, natural and neutral witnesses have not been examined by the prosecution and those who have been examined, are all related to the deceased and are interested witnesses.
7. In order to assail the testimony of Devanand Chawariya (PW1), the Ld. Counsel for Om Prakash has adverted to paragraph 28 of PW1's testimony where the omission in his testimony and his statement u/s. 161 Cr.P.C (Ex-D1/PW1), are (a) that he had seen the incident from a hundred feet, (b) that after Mansingh had assaulted the deceased with the stone, both Mansingh and Om 6 Prakash assaulted the deceased with stones, each throwing the stone at the deceased once, (c) that upon the witness shouting at the Appellants, they ran away, (d) after which the witness ran towards Mandi Gate shouting and narrated the incident to Vinod (PW2) and (e) that he had informed the police that Appellant Om Prakash was shouting "assault this Mehtar, don't let him get away alive".
8. The arguments of the Ld. Counsel for Mansingh can be summarised as follows. (1) The witnesses are all related to each other and the deceased and therefore they have falsely implicated the Appellants. (2) The statements of the mill workers were not recorded in the course of investigation though they were natural and neutral witnesses. (3) That, PW6 had asked PW1 as to who had murdered the deceased to which PW1 answered that he does not know. Therefore, the testimony of PW1 that he was an eyewitness to the incident is doubtful and the benefit of the same must be given to the Appellants. (4) That there was sufficient time between the incident and the registration of the FIR and therefore, the possibility of the FIR being concocted cannot be ruled out. (5) The seizure of the blood stained shirt at the behest of the Appellant Mansingh was from an open space as stated by PW2, accessible to the general public and therefore the piece of evidence could have been planted by anyone. (6) The stones seized from the scene of occurrence did not have any brain matter sticking on it and therefore, it cannot be assumed that the said stones seized from the scene of crime were the ones which were used in the murder. (7) The post mortem report does not reveal any sand and dirt sticking to the open wounds of the deceased 7 and therefore, the same put a doubt on the scene of occurrence itself as the prosecution's case is that the place where the offence was committed with a dusty place with sand and stones, (8) The FSL (serologist) report does not reveal that the blood group of the deceased was AB and therefore, the finding that the blood on the stones and the shirt seized from the Appellant Mansingh, which tested positive for AB group, belonged to the deceased and (9) no motive for the crime has been proved by the prosecution.
9. Counsel for Mansingh has referred to three judgements. They are (2016) 2 SCC 607 - State of Rajasthan Vs. Daud Khan (with specific referred to paragraph 31), AIR 1953 SC 314 - Mohinder Singh Vs. State (with specific reference to paragraph 11 [paragraph 12 as published in SCC]). Both these judgments are, on the necessity to establish forensic evidence through the testimony of an expert. The third judgement is (2003) 1 SCC 398 - Raghunath Vs. State of Haryana and anr., (with specific reference to paragraph 7 and 8 - acquittal by Supreme Court as human blood found was not proved as that of the deceased).
10. Heard the Ld. Counsels for the parties and perused the record of the Ld. Trial Court. The date and time of the incident is 18/02/08 at 11.30 AM. The FIR is Ex-P/1 and it has been recorded at 12.45 PM i.e., within an hour and fifteen minutes of the incident. It is prompt and it names the Appellants as the accused persons. The facts as narrated in the FIR have already been given in paragraph 3 supra.
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11. The post-mortem report is Ex.P11. In all, the doctor has noted six injuries. The first injury is a lacerated wound on the occipital region on the right side which is bone deep with the presence of haematoma and depressed fracture of the skull bone. The second injury is also a lacerated wound on the forehead lower on the right side, which is bone deep with a depressed frontal bone. The third injury is a lacerated wound on the left side of forehead, above the eyebrow resulting in a depressed fracture. The fourth injury is a lacerated wound on the face on the left side below the eye, which is bone deep resulting in the depression of the left eyeball. The fifth injury is a lacerated wound on the occipital region resulting in depressed fracture with the brain matter peeping through it. The sixth injury comprises of two vertical lacerated wounds in the parietal region, rear to each other resulting in a depressed fracture of the skull. All the injuries were caused by hard and blunt objects. The internal injuries which have been discovered by the doctor are fractures on the skull bone. The brain is contused and lacerated and there is a huge quantity of blood in the cranial cavity which is clotted and coming out from the wound. The cause of death, as per the opinion of Dr. R. C. Gupta (PW5) is cardio-respiratory failure due to sudden and excessive haemorrhage from poly-trauma inflicted on the body of the deceased. The duration of death is within 24 hours before the commencement of autopsy and all the injuries were caused by hard and blunt objects.
12. Devanand Chawariya (PW1) is the sole eyewitness. His in-chief examination is largely a reiteration of what has already been reproduced from the FIR in paragraph no.3 supra. Learned 9 amicus appearing on behalf of Appellant Om Prakash has drawn our attention to paragraph no.20 of the cross-examination of this witness where he has stated that the stone that was used in the murder may have been around 300 to 400 gms. She has tried to contradict this witness with reference to the seizure memo, Ex.P/3, which relates to the stone that has been seized from the scene of occurrence, which reveals that the stone weighed about five kilograms. As regards this, the Ld. Counsel for the State has argued that the PW1 is a rustic person, working as a sweeper and it cannot be expected that the witness can be precise about the weight of the stone that was used in the commission of the offence merely on the basis of visual appreciation. Therefore, it is contended on behalf of the State that the variation in the weight of the stone used in the offence as seen from the statement of PW1 and Ex.P/3, is natural and inconsequential. We agree with the submission put forth by the Ld. Counsel for the State.
13. Learned counsel for Appellant Man Singh has drawn our attention to paragraph no.28 of the cross-examination of Devanand Chawariya (PW1) where he states that he had told the police that he had seen the incident from 100 feet and saw the Appellant Man Singh hitting deceased Mangilal with a stone, upon which the deceased fell down. He further states that he had also told the police that after this, Mangilal was assaulted by Appellant Om Prakash who struck him with a stone. He also says that he had shouted at both the Appellants upon which they ran away. He further states that he ran towards Mandi gate shouting about the incident. He says met Vinod (PW2) on the way and informed him about the incident and that he (PW1) had heard 10 Appellant Om Prakash shouting that the sweeper (deceased) should not escape alive. As regards this part of PW1's testimony, he has been confronted with his police statement (EX.D1) to which he says that if what he has stated in his Court testimony is not there in the FIR and in his police statements, he does not know the reason. We examined the police statement of PW1 which is Ex.D1 and found that he has stated that he is a witness to the incident where he has seen the Appellants herein assaulting the deceased with the stones. Under the circumstances, what is sought to be shown as an omission/improvisation in his testimony, is not an omission as PW1 has stated the same before the police in his statement u/s. 161 Cr.P.C. However, the narrative that he has given in his testimony with regard to the Appellants herein assaulting the deceased with stones is not ippsissima verba, but that by itself does not render the testimony of PW1 unreliable. Precious little has been brought out by way of contradiction in the statement of Devanand Chawariya (PW1)that could be said to go to the root of the prosecution's case.
14. Vinod Kumar (PW2) is not an eyewitness to the incident but is a witness to the seizure of the shirt of Appellant Man Singh. He is also a hearsay witness who states that Devanand Chawariya (PW1) had informed him about the incident. As regards the seizure of the shirt of Appellant Man Singh, this witness had initially turned hostile but upon cross-examination by the prosecutor, has supported the case of the prosecution. In cross- examination by the defence, in paragraph no.10 he has dismissed the suggestion as incorrect that Appellant Man Singh did not make a disclosure under section 27 of the Evidence Act in his 11 presence which later led to the recovery of the shirt worn by him during the offence.
15. PW3 is Smt. Leela Bai who says that on the date of incident she was at her home at 11:00 a.m. when Appellants Man Singh and Om Prakash came to her house and told Mangilal (deceased) that a ditch had to be dug and asked him to accompany them. Thereafter, all the three went away. She also says that later, Vinod Kumar (PW2) came and informed her that the Mangilal (deceased) is lying dead near the highway behind the Dal Mill. She further says that she and Vinod Kumar (PW2) went on the motorcycle of PW2 to the scene of occurrence where she saw two stones lying near the deceased. In her cross-examination, she says that the deceased was her brother-in-law and was also her neighbour. No material contradiction has been brought out by the defence in her cross-examination.
16. PW4 is Balram who is the second witness to the seizure of the shirt of Appellant Man Singh and he has supported the case of the prosecution and has not turned hostile. He is also a witness to the 27 memorandum of Appellant Man Singh. No contradiction has been brought out in the cross examination of this witness. PW5 is Dr. R. C. Gupta who performed the post-mortem and has reiterated the contents of the post-mortem report in his testimony.
17. PW6 is Deepak Sethi. Much reliance has been placed on this witness by both the learned counsels for the Appellants. He is stated to have reached the scene of occurrence immediately after 12 the incident. In his examination-in-chief he says that his shop is at a short distance from the scene of occurrence. He also says that some people informed him that behind the house of Chadtimal Jain, a murder has taken place. He further says that he first informed the police through his mobile and thereafter went to the scene of occurrence where he saw Mangilal (deceased) lying dead on a pile of granite chips. He further says that he saw Devanand Chawariya (PW1) standing there. He further says that he saw injuries over the head of the deceased. In cross- examination, he says that Devanand Chawariya (PW1) is known to him since childhood and that he works in the same ward where this witness resides. He states that he had asked Devanand Chawariya (PW1) as to who has committed the murder to which he is stated to have replied that he does not know. He further says that he reached the scene of occurrence between 12:00 and 12:15 p.m., and that he had spoken to Devanand Chawariya (PW1) at the scene of occurrence itself. Thus, on the basis of the statement in cross-examination of Deepak Sethi (PW6), the defence has vehemently argued that the presence of Devanand Chawariya (PW1) at the scene of occurrence at the time when the offence took place, is gravely suspect.
18. PW7 is Vijay Rajsingh. He was a Constable on the date of his testimony before the learned trial court. He is the most important witness whose testimony would reveal whether Deepak Sethi (PW6) has testified honestly with regard to him having met Devanand Chawariya (PW1) at the scene of occurrence. Vijay Rajsingh (PW7) says that on the date of incident, he was posted as head Constable at P.S Astha. On that date, Devanand 13 Chawariya (PW1) gave a report upon which Crime No.91/08 was registered against the Appellants herein under section 302 read with section 34 IPC and section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. PW7 has reproduced in his testimony, the contents of the FIR recorded by him. As per the FIR recorded by him, Devanand Chawariya (PW1) informed this witness that on 18.2.2008 he had gone to Rajgarh bank to meet Vinod Kumar (PW2). There Devanand Chawariya (PW1) met the deceased who had come to the bank to withdraw Rs.200/-. Thereafter Devanand Chawariya (PW1) informed PW7 that he along with his nephew Mangilal proceeded towards the liquor shop in Mandi where they were joined by two friends of the deceased (the Appellants herein). Thereafter, Devanand Chawariya (PW1) states that the deceased along with the Appellants herein went to the liquor shop and started drinking. Thereafter Devanand Chawariya (PW1) is stated to have told the deceased to go home upon which the deceased and the Appellants herein started walking towards the Dal Mill of Chadtimal. He (PW1) says that he went from behind them and saw the Appellants herein assaulting the deceased with stones due to which the deceased fell down on the ground. He says that he ran towards the three shouting not to kill the deceased upon which the Appellants are stated to have told him that "we will not let this sweeper live" after which both of them ran away.
19. Upon information given by Devanand Chawariya (PW1), Vijay Rajsingh (PW7) noted the time of the incident as 11:30 A.M. In paragraph no.4 of his examination-in-chief, Vijay Rajsingh (PW7) states that before registering the FIR, he was informed on 14 telephone by Deepak Sethi (PW6) that a person is lying dead near the Dal Mill of Chadtimal. Vijay Rajsingh (PW7) informed Sub- Inspector Mr. S. R. Choudhary (PW8) through wireless so that he may proceed to the scene of occurrence forthwith. Besides, he also states that from the police station Assistant Sub-Inspector Mr. Siddiqui started for the scene of occurrence. He (PW7) has proved Ex.P13, which is the daily diary entry of 18.2.2008 at the police station relating to Entry No.1505/08. In cross- examination, this witness states unequivocally that the information he received over mobile from Deepak Sethi (PW6) was at 12:20 P.M. In paragraph no.7, this witness states that Devanand Chawariya (PW1) came to the police station and got the FIR registered at 12:45 P.M.
20. It is necessary to advert and deal with each argument taken by the learned counsel for Appellant Man Singh which we have referred to in paragraph no.8 supra. The first contention of learned counsel for Appellant Man Singh is that all the witnesses are related to each other and the deceased and, therefore, they have falsely implicated the Appellants. The said contention does not hold water in the light of the settled position that merely because the witnesses are related or interested they cannot be disbelieved if they corroborate each other on material particulars and have not been contradicted to such an extent that goes to the core of the prosecution's case. It is also a settled position that an interested witness wants to ensure that the actual perpetrator of the offence is tried and punished.
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21. The second contention of the learned counsel for Appellant Man Singh was that the statements of Mill workers were not recorded in the course of investigation, though they were natural and neutral witnesses. As regards this contention, the choice of the witnesses is the prerogative of the police and the prosecution. There is no presumption that merely because neutral and natural witnesses were not produced before the learned trial court, the case of the prosecution is tainted. What the court must see is whether the witnesses who have been produced by the prosecution go to prove the guilt of the accused beyond reasonable doubt. Besides, such witnesses who have been dropped by the prosecution could always have been produced before the court as defence witnesses.
22. The third contention of the learned counsel for Appellant Man Singh is that Deepak Sethi (PW6) had asked Devanand Chawariya (PW1) as to who had murdered the deceased to which Devanand Chawariya (PW1) is alleged to have answered that he does not know and therefore, the testimony of Devanand Chawariya (PW1) was doubtful. We shall advert to this contention of the learned counsel for Appellant Man Singh later in this judgment.
23. The fourth contention of learned counsel for Appellant Man Singh is that there was a long gap between the incident and the registration of the FIR and, therefore, the possibility of the FIR being concocted cannot be ruled out. We outrightly reject this contention. The incident had taken place at 11:30 A.M. and the FIR has been registered at 12:45 P.M. The distance of the place of occurrence from the police station is one furlong. Therefore, as 16 the FIR has been registered within one hour and fifteen minutes from the time of incident, we hold that there was no delay in the registration of the FIR.
24. The fifth contention of the learned counsel for Appellant Man Singh is that the seizure of the blood-stained shirt at the behest of Appellant Man Singh was from an open space, as stated by Vinod Kumar (PW2), accessible to general public and, therefore, the piece of evidence could have been planted by anyone. In this regard, we are of the opinion that Vinod Kumar (PW2) has turned hostile though he has subsequently supported the case of the prosecution and cross-examined by the prosecutor. However, Balram (PW4) who is also a witness to the seizure has supported the case of the prosecution and has not turned hostile. Merely because the shirt was seized from a place, which is also accessible to the general public, does not by itself render the seizure doubtful.
25. The sixth contention of learned counsel for Appellant Man Singh is that the stone seized from the scene of crime did not have any brain matter sticking on it and therefore, it cannot be assumed that the said stones seized from the scene of crime were the ones that were used in the murder. As regards this contention, the post-mortem report and the testimony of the doctor go to reveal that the brain matter was only 'peeping' out from the skull but no part of it was missing in order to support the contention of the learned counsel that a part of the brain matter could have been sticking to the stones which were used in the offence. Besides, the FSL report (Ex.P25), reflects that the stones used in the 17 offence were marked as articles "C" and "D", were blood stained with human blood and, the blood group was also identified as "AB Group". We shall discuss the relevance of this at a later stage. Therefore, this contention of learned counsel for Appellant Man Singh is also rejected.
26. As regards the seventh contention of the learned counsel for Appellant Man Singh, the post-mortem report does not reveal any sand and dirt sticking to the open wounds of the deceased and, therefore, the same puts a doubt on the scene of crime itself as the prosecution's case is that where the incident had occurred was a dusty place with sand and stones. We have given our thoughtful consideration to this proposition put forth by the learned counsel for the Appellant Man Singh. However, a post- mortem report is basically to disclose the nature of injuries, both internal and external, suffered by the victim and to give the probable cause of death. If minute details regarding sand and gravel material being stuck to the body are recorded, the same would only go to show that the post-mortem was performed with a very high degree of observation. However, the exclusion of the same from the post-mortem report by itself would not put to doubt the scene of occurrence as suggested by the prosecution. It is also relevant to mention here that the FSL report reveals that the blood on the sand recovered from directly under the body was of 'AB' group and as there were no injuries on the body of the Appellants, the blood on the sand from the scene of occurrence could only be that of the deceased, which could be presumed by a process of deduction by elimination. Therefore, the failure on the part of the doctor conducting the post-mortem to record the 18 presence of sand and dirt sticking to the body, does not put to doubt the place of occurrence.
27. The eighth contention put forth by the learned counsel for Appellant Man Singh is that the FSL (Serologist's report) does not reveal that the blood group of the deceased was "AB" and, therefore, the finding that the blood on the stones and the shirt seized from the Appellants, which tested positive, was of "AB" group belonged to the deceased is doubtful. In order to buttress his submission, the Ld. Counsel for Man Singh has referred to the judgement of the Supreme Court in State of Rajasthan Vs. Daud Khan - (2016) 2 SCC 607 with specific reference to paragraph 31. In that case, the Respondent (accused) was convicted by the Trial Court and the High Court for the offence u/s. 304 Part I and acquitted of the charge under section 302 IPC. The State being aggrieved filed the appeal before the Supreme Court. The Supreme Court dismissed the appeal and upheld the orders passed by the Trial Court and the High Court. In paragraph 31, the Supreme Court, extracted paragraph 10 from another judgement of the Supreme Court [Mohinder Singh Vs. State - AIR 1953 SC 415] wherein it was opined that where death was caused with the use of 'lethal weapon' it was for the prosecution to prove through expert evidence that the death was caused in the manner as suggested by the prosecution.
28. The Ld. Counsel also relied upon another judgement of the Supreme Court being, Raghunath Vs. State of Haryana and Another - (2003) 1 SCC 398. In this case, the Appellants before the Supreme Court were convicted u/s. 302 r/w 149 IPC. The 19 case was one of a sudden fight between two groups. The Appellant/Accused before the Supreme Court argued that one member from the side of the accused was abducted by the Complainant side and the Appellant side went to rescue him when the fight broke out between the two groups in which one person died from the side of the Complainant. One of the factors on which the courts below had convicted the Appellants in that case was the seizure of blood from the scene of crime which was identified as blood of human origin by the serologist in the FSL report. The blood group was not determinable. The Supreme Court held that in the absence of the blood group in the FSL report, it could not be determined if the blood so seized was that of the deceased or that of the person from the side of the Appellant party who was assaulted and grievously injured by the Complainant side. The Supreme Court allowed the appeals and acquitted the Appellants in that case.
29. The Ld. Counsel for the Appellant Man Singh has relied on these cases to impress upon us that in the case at hand, the FSL report does not reveal the blood group of the deceased to establish that the blood seized from the scene of occurrence was that of the deceased. In State of Rajasthan Vs. Daud Khan, the Supreme Court opined that in cases of death by 'lethal weapon' the scientific evidence must support the prosecution's case of the manner in which the offence was committed. In Raghunath Vs. State of Haryana and ors., the Supreme Court opined that the FSL report must reveal the blood group if it has to assist the prosecution's theory that the blood on the seized article indeed was that of the deceased.
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30. In this case, the FSL report reveals that the stones (articles "C"
and "D") and the soil taken from the scene of occurrence (article "E"), all had the blood group "AB" on it. Article "J" was the pant and Article "H" was the shirt belonging to Appellant Man Singh, which also contained the blood group "AB". The sand that was taken from the scene of occurrence was the blood that had drained from the body of the deceased which was of "AB" group. That by itself would go to establish that the blood group of the deceased was "AB". It has never been the case of the defence that the Appellants ever suffered any kind of injuries and neither does the arrest memo of the Appellants reveal that they had any kind of injuries on their bodies at the time of their arrest, which could probabilise the blood being that of the Appellants. Therefore, the presence of blood group "AB" on the sand, which was directly below the place where the body of the deceased lay, goes to establish beyond reasonable doubt that the blood group of the deceased was also "AB". Therefore, the judgements relied upon by the Ld. Counsel for the Appellant Man Singh are of no assistance. Thus, the contention of the Ld. Counsel for the Appellant Man Singh in paragraph 25 is answered by us accordingly.
31. The ninth contention of the learned counsel for Appellant Man Singh is that no motive for the crime has been proved by the prosecution. This we shall deal at a later part of our judgment.
32. The specific direction of the Supreme Court, while remanding this case, was to consider the statement of Deepak Sethi (PW6) and give a finding thereupon. At the risk of repetition, Deepak Sethi 21 (PW6) has stated in his cross-examination that when he inquired from Devanand Chawariya (PW1) as to who has committed the murder of the deceased, Devanand Chawariya (PW1) is stated to have told Deepak Sethi (PW6) that he does not know. This part of the testimony of Deepak Sethi (PW6) is conspicuous by its absence in his 161 statement. However, the learned prosecutor has not re-examined Deepak Sethi (PW6) by seeking a clarification with regard to his police statement where he had not stated so. The prosecution has also not declared him hostile. At first blush, the statement of Deepak Sethi (PW6) has the propensity to demolish the case of the prosecution in its entirety as it strongly contradicts the statement of Devanand Chawariya (PW1) and brings into doubt as to whether he was actually an eyewitness to the incident.
33. Devanand Chawariya (PW1) in his court statement gives the description of the people who had come to the scene of occurrence after he had witnessed the incident. He says that after he saw the incident, he ran towards the Mandi gate shouting and on the way he met Vinod Kumar (PW2) whom he informed about the incident. In paragraph no.5 of his testimony he says that when he went along with the police to assist in the making of the site map (Ex.P2), at that time Vinod Kumar (PW2), Rajkumar and other persons were present at the scene of occurrence. In paragraph no.29, Devanand Chawariya (PW1) has specifically negated the suggestion that it was Deepak Sethi (PW6) who had reached the scene of occurrence first and had informed the police. Thus, Devanand Chawariya (PW1) in his entire testimony does not state that Deepak Sethi (PW6) came to the scene of occurrence 22 immediately after the incident after the Appellants had run away. Devanand Chawariya (PW1) also does not state that there was any kind of conversation between him and Deepak Sethi (PW6). In fact, Devanand Chawariya (PW1) does not even state that Deepak Sethi (PW6) was present at the scene of occurrence.
34. Vinod Kumar (PW2) states that he was informed by Devanand Chawariya (PW1) about the incident and how the Appellants had killed the deceased. He says that he went to the scene of occurrence on his motorcycle and saw the deceased lying dead. Behind him, he says Devanand Chawariya (PW1) and Rajkumar (not examined as a witness) also came to the scene of occurrence and thereafter a big crowd collected there. This witness also does not give any reference to Deepak Sethi (PW6) being present at the scene of occurrence. The statement of this witness that Devanand Chawariya (PW1) and Rajkumar reached to the scene of occurrence after him is to be construed in the backdrop of the fact that Vinod Kumar (PW2) was informed by Devanand Chawariya (PW1) about the murder on his way to the police station to register the FIR and thereafter when Devanand Chawariya (PW1) returned to the scene of occurrence along with the police, Vinod Kumar (PW2) was also there.
35. PW4 is Balram who is also a witness to the subsequent events and who says that Devanand Chawariya (PW1) was shouting at the junction that Mangilal has been murdered upon which he went to the scene of occurrence and saw the deceased lying there with his head crushed. This witness does not give any detail with regard to the other persons present at the scene of occurrence. In 23 paragraph no.12 he says that it is correct to suggest that when he reached the scene of occurrence, there were a lot of people from the neighbourhood who had gathered there but he is unable to recall those persons specifically.
36. If one goes by the statement of Devanand Chawariya (PW1), it is very clear that he does not take the name of Deepak Sethi (PW6) being there at the scene of occurrence immediately after the incident or that he ever had a conversation with him. Neither does this witness say that when returned along with the police to the scene of occurrence, Deepak Sethi (PW6) was seen there. A doubt is raised at this juncture, whether Deepak Sethi (PW6) had ever gone to the scene of occurrence.
37. As per the testimony of Deepak Sethi (PW6), Devanand Chawariya (PW1) was well-known to him from childhood. Therefore, if Deepak Sethi (PW6) were at the scene of occurrence, it would have been natural for Devanand Chawariya (PW1), at the time of registering the FIR, to inform the police about the presence of Deepak Sethi (PW6) having come after him to the scene of occurrence, but PW1 does not say so
38. Head Constable Vijay Rajsingh (PW7) recorded the daily diary entry relating to the call that he received from Deepak Sethi (PW6). PW7 says that he received a call from Deepak Sethi (PW6) at 12:20 PM. This fact is corroborated by Ex.P13, which is the daily diary entry reflecting the call received at the police station from Deepak Sethi (PW6) at 12.20 PM. When this statement of Vijay Rajsingh (PW7) is juxtaposed on the statement of Deepak 24 Sethi (PW6), the presence of Deepak Sethi (PW6) at the scene of occurrence becomes suspect.
39. Deepak Sethi (PW6) in paragraph1 of his statement says that as soon as he got the information about the incident, the first thing he did was that he informed the police on his mobile phone and only after that does he proceed to the scene of occurrence. Thereafter in paragraph 3 he witness states that he had reached the scene of occurrence between 12:00 hours and 12:15 PM when he allegedly saw Devanand Chawariya (PW1) at the scene of occurrence. The time of reaching the scene of occurrence which is given by Deepak Sethi (PW6) as 12:15 PM is incorrect because, the daily diary entry shows that the police received the call only at 12:20 PM which Deepak Sethi (PW6) says was made from his shop even before he proceeded to the scene of occurrence. Thus, it is absolutely clear that Deepak Sethi (PW6) reached the scene of occurrence only after 12:20 PM and not before that.
40. Therefore, from the statements of Devanand Chawariya (PW1) and Vinod Kumar (PW2) who does not name Deepak Sethi (PW6) as one of the persons who was at the scene of occurrence, Vijay Rajsingh (PW7), the head constable who testified that the call from Deepak Sethi (PW6) was received at 12:20 PM, clearly reveals that Deepak Sethi (PW6) did not have an opportunity of meeting Devanand Chawariya (PW1) at the scene of occurrence as Devanand Chawariya (PW1) was on his way to the police station which was 'one furlong' (as given in the FIR, Ex. P1) from the scene of occurrence for the registration of the FIR at 12.45 PM. Therefore, the statement made by Deepak Sethi (PW6) in his 25 cross-examination that he had such a conversation with Devanand Chawariya (PW1) in which Devanand Chawariya (PW1) allegedly stated that he did not know who has committed the murder of the deceased is a statement that is factually incorrect. Thus, the contention of the Ld. Counsel for the Appellant Man Singh in paragraph 22 supra, stands answered by us.
41. The prosecution's case however does raise a doubt whether the act of the Appellants was one u/s. 302 or u/s. 304 IPC. The undisputed case of the prosecution is that (a) the deceased and the Appellants were known to each other. (b) The deceased and the Appellants sat down and consumed liquor together at the liquor shop shortly before the incident. (c) There was no pre- existing enmity between the deceased and the Appellants or any other motive that was proved. (e) The eyewitness PW1 reaches the scene of occurrence only in time to see the assault on the deceased and not before that to see if the assault was preceded by a fight or argument between the deceased and the Appellants. Under the circumstances, we feel that it must not be lost sight of that the Appellants and the deceased had consumed alcohol just before the incident. Though we are aware that self-induced intoxication would not bring the case of the Appellants under the general exceptions of the IPC, and no such defence has also been pleaded by the Appellants, we cannot at the same time overlook the probability of a sudden fight having taken place between the deceased and the Appellant to which there were no witnesses, which could be a mitigating factor while affixing criminal liability. This is all the more relevant as the time between the consumption of alcohol by the three in complete harmony to the sudden act of 26 violence by the Appellants is extremely short. Thus we hold that a sudden fight between the deceased and the Appellants was extremely probable which however was not witnessed by PW1. Thus, the contention of the Ld. Counsel for the Appellant in paragraph 31 that there was no motive for the act of the Appellants, stands answered by us in favour of the Appellants and we hold that the act of the Appellants is covered under exception four to section 300 of the IPC making them liable for an offence u/s. 304 Part I IPC and not u/s. 302 IPC.
42. Under the circumstances, the appeals are partly allowed. We set aside the conviction of the Appellants u/s. 302 IPC and instead hold them guilty for an offence u/s. 304 Part I IPC and sentence them to suffer ten years rigorous imprisonment. If the Appellant Man Singh who is undergoing his sentence has already completed ten years, he shall be released forthwith unless required in any other case.
43. As regards, Appellant Om Prakash, he shall surrender before the Ld. Trial Court which shall send him to jail to complete the remaining part of his sentence.
44. Before parting with this case we record our deep sense of appreciation to the Ld. Amicus Curiae who have appeared in this case and assisted us effectively.
45. With the above, the appeals stand disposed of.
(Atul Sreedharan) (Sunita Yadav)
Judge Judge
Digitally signed by SHYAMLEE SINGH
SOLANKI
Date: 2021.12.15 15:56:46 +05'30'
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