Madhya Pradesh High Court
Mohan Singh & Ors. vs The State Of M.P. on 20 November, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2024:MPHC-JBP:56815
1 CRA-1628-1996
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 20th OF NOVEMBER, 2024
CRIMINAL APPEAL No. 1628 of 1996
MOHAN SINGH & ORS. AND OTHERS
Versus
THE STATE OF M.P.
Appearance:
Shri Rashid Suhail Sidiqi - advocate for appellants.
Shri Manas Mani Verma - Government Advocate for
respondents/State.
WITH
CRIMINAL APPEAL No. 1705 of 1996
PAPPU @ AJAY KUMAR
Versus
THE STATE OF M.P.
Appearance:
Shri Raman Patel - advocate for appellants.
Shri Manas Mani Verma - Government Advocate for
respondents/State.
ORDER
Per: Justice Vivek Agarwal These appeal are filed by two sets of appellants being aggrieved by the judgment dated 16.09.1996 passed by the learned 5th Additional Sessions Signature Not Verified Signed by: RAVIKANT KEWAT Signing time: 21-11-2024 17:07:03 NEUTRAL CITATION NO. 2024:MPHC-JBP:56815 2 CRA-1628-1996 Judge, Jabalpur in Session Case No.48 of 1987, whereby the learned Sessions Judge had recorded conviction of all the six appellants under Section 302/149 of IPC with life imprisonment. They have also been convicted under Section 148 of IPC with R.I. of 1 year. All the sentences to run concurrently.
2. It is also on record that one of the accused persons, namely, Chhutai @ Chhote S/o Lallu Mehtar was absconding and, therefore, trial was not conducted qua him.
3. It is also on record that one of the appellants Chini @ Ramsevak S/o Raghunandan died on 09.05.2013 and, therefore, vide order dated 28.05.2024, appeal was declared to be abated qua the appellant Chini @ Ramsevak.
4. Learned counsel appearing for the appellants Shri Rashid Suhail Sidiqi and Shri Raman Patel submit that the appellants are innocent. It is submitted that the FIR is both antedated and ante-time. Therefore, it is pointed out that the FIR Ex.P/2 is not a reliable document. Reading from Ex.P/19, which are the statements of deceased Shambhu under Section 161 of Cr.P.C. It is submitted that they needs to be discarded because they cannot be construed to be a dying declaration of deceased Shambhu, as with multiple injuries sustained by him he would not have been in a position to give statement to the police. Shri Rashid Suhail Sidiqi further submits that looking to the nature of injuries sustained by Shambhu, there would have been so much of blood loss that his vital could not have been normal so to enable him to give statement to the police and, therefore, conviction on the Signature Not Verified Signed by: RAVIKANT KEWAT Signing time: 21-11-2024 17:07:03 NEUTRAL CITATION NO. 2024:MPHC-JBP:56815 3 CRA-1628-1996 basis of or with the aid of dying declaration cannot be made out. It is also submitted that since Ex.P/19 was recorded at Victoria Hospital, therefore, it was necessary that certification from the concerned Doctor in regard to fitness of Shambhu should have been obtained or/and the concerned Executive Magistrate should have been called to record dying declaration.
5. It is further submitted that infact PW-5 Kallu is S/o Marru (PW-
3). Marru is the author of the FIR (Ex.P/2). It is submitted that infact Kallu was taken in custody by police and for the barter of his statement, Marru falsely implicated the present set of appellants.
6. It is also submitted that PW-4 (Rambai) and PW-5 ( Kallu) are not the eye witnesses and, therefore, their evidence is of no consequence. Thus, it is submitted that it is a fit case for acquittal of all the appellants.
7. Shri Raman Patel submits that name of Ajay is not in the FIR and, therefore, it is a fit case for his acquittal.
8. Shri Manas Mani Verma, learned counsel appearing for the State in his turn supports prosecution case and submits that the evidence of PW-10 (Dr.B.S.Chouhan) is important inasmuch as Dr. B.S. Chouhan has categorically noted that Pulse of Shambhu was 96 per minute, his Blood Pressure was 100/60. Thus, it is submitted since vitals were normal and Shambhu died on the next day at Medical College after being referred from Victoria Hospital on the night of 04.12.1986 itself. It cannot be said that his dying declaration Ex.P/19 is a concocted document or the FIR etc. are antedated document. It is also pointed out that PW-10 has categorically stated that on 04.12.1986 when he was working as Assistant Surgeon, a Signature Not Verified Signed by: RAVIKANT KEWAT Signing time: 21-11-2024 17:07:03 NEUTRAL CITATION NO. 2024:MPHC-JBP:56815 4 CRA-1628-1996 constable Dayashankar No.1936 brought injured for medical examination from Police Station Adhartal which clearly reveals that neither the FIR is antedated nor the statement (Ex.P/19) is antedated or ante-time.
9. After hearing learned counsel for the parties and going through the record as far as FIR (Ex.P/2) is concerned, FIR is lodged by Marru (PW-3). In the FIR, he has categorically mentioned that Narayan Kachhi was armed with a Ballam, Mohan Kachhi was armed with a Rod, Ramavtar Kachhi was armed with a Sword, Munna Kachhi was armed with a Farsa, Chini was armed with a sword and, there was another boy who was called as Azad. They had surrounding Shambhu and had caused multiple assaults on him, as a result of which, Shambhu had fallen down. The time of report is 21:00 hours, for an incident which took place at about 20:30 hours. This FIR and timing thus corroborates from the statements of the PW-3 (Marru) inasmuch as he has categorically stated that after the incident took place he had gone to his officers staying at Anand Nagar where he was counselled not to report the matter and thereafter he had gone to the police station to lodge report. He has shown the distance of his senior's house to be 1 km. and then from there he had gone to the police station after staying with his boss for 5-10 minutes. Thus, when in terms of time the total period is taken into consideration, then report at 9:00 p.m. does not appear to be anti time or antedated. MLC (Ex.P/20) makes a mention of timing as 9:20 p.m. when PW-10 (Dr. B.S. Chouhan) had examined the injured Shambhu. Dr. Chouhan has categorically stated that injured Shambhu was brought by constable Dayashankar, thus this is another piece of evidence which contradicts the Signature Not Verified Signed by: RAVIKANT KEWAT Signing time: 21-11-2024 17:07:03 NEUTRAL CITATION NO. 2024:MPHC-JBP:56815 5 CRA-1628-1996 submissions made by Shri Sidiqi that FIR is antedated or ante time. In this regard, evidence of PW-9 (Shri H.G.Tiwari) is important inasmuch as he is the person who had taken down the FIR (Ex.P./2) and he had also taken statement of injured Shambhu Pasi which are contained in Ex.P/19. Though a suggestion was given that FIR (Ex.P/2) is antedated as it was written after the death of Shambhu but this suggestion merely on the basis of some overwriting is not sufficient to point out that FIR is antedated or ante time specially in view of evidence of independent witness Dr. B.S. Chouhan (PW-
10).
10. PW-3 is the star witness. He has stated that at about 7-8 p.m., he was on his duty, his wife and son were sitting at his home. He heard cries for saving. This voice had come from the side of brickkiln. Thereafter, he had reached the place of the incident and had seen the Shambhu Pasi running. There were three persons following him, four persons came on road, when Shambhu Pasi had fallen down, they started beating Shambhu Pasi, they were armed with Sword, Ballam Farsa and Rod. He had intervened but the assailants did not pay any heed to his intervention. He has taken names of Narayan, Ramavtar, Munna, Chini and has said that two other persons are not known to him. He has identified Narayan and Chini on dock identification. He has categorically stated that at the time of the incident he alone had come out of his house and he had seen the incident in the light of streetlight. There was nobody else at the present at the place of the incident. This fact is corroborated by the statement of Rambai (PW-4 ) who has categorically stated that she had seen the assailant running but could not identify as to who Signature Not Verified Signed by: RAVIKANT KEWAT Signing time: 21-11-2024 17:07:03 NEUTRAL CITATION NO. 2024:MPHC-JBP:56815 6 CRA-1628-1996 were those persons. She has categorically stated that she cannot say from which village the assailants were and what was their description. Similarly, PW-5 (Kallu) has supported the incident but stated that he witnessed the incident from a distance and, therefore, he cannot say as to which of the assailants was armed with which of the weapon.
11. Thus, PW-4 and PW-5 have supported the version of PW-3 (Marru) who has stated that nobody else had seen the incident. Ex.P/19 is the statement of Shambhu as was recorded by PW-9 (H.D. Tiwari). In his statement, he has clearly taken names of Narayan Kachhi, Mohan Kachhi, Ramavtar Kachhi and Munna Kachhi who are real brothers. Thereafter, he has he has said that Chini and Ajay of Sanjay Nagar were also accompanying them and all of them had surrounded him with Ballam, Farsa, Sword etc. and started beating him.
12. It has come on record and as is mentioned in Ex.P/19 that Shambhu was taken to the Victoria Hospital as there was urgency to take him to the hospital looking to the nature of the injury. There are some minor contradictions but as far as vitals of Shambhu are concerned as certified by Dr. B.S.Chouhan (PW-10). It cannot be said that he was not in a position to give statement or to narrate the incident as it took place. Specific question was put to Doctor B.S.Chouhan (PW-10) that since Shambhu was under the influence of alcohol, therefore, he was not having proper mental balance to give statements but this suggestions has been denied in para-9 of deposition of Doctor Chouhan who has said that it is incorrect to say that because of the injury and lapse of time because of excessive blood loss and consumption of Signature Not Verified Signed by: RAVIKANT KEWAT Signing time: 21-11-2024 17:07:03 NEUTRAL CITATION NO. 2024:MPHC-JBP:56815 7 CRA-1628-1996 alcohol, his mental balance was not proper.
13. As per the merg intimation, Shambhu died at 5:00 a.m. on 05.12.1986 after being referred to medical college at 10:30 p.m on 04.12.1986. Therefore, we do not find any reason to discard or doubt the statement contained in Annexure-P/19, which are duly corroborated by PW- 3 and, therefore, we are of the opinion that as far as Mohan Singh Ramavtar, Munna and Narayan Prasad are concerned, it gets due corroboration in terms of FSL report (Ex.P/32) that blood was found in all the articles recovered from them respectively, Though, it was disintegrated and blood group could not be ascertained, therefore, we do not find any reason to discard the dying declaration (PW-19) and the eye witness testimony of PW-3 to show any indulgence duly supported by timely FIR and corroborated by medical evidence of PW-10 (Dr. B.S. Chouhan) and PW-8 (Dr.A.K.Yadu) who had conducted postmortem.
14. However, there is iota of doubt in regard to involvement of appellant - Pappu @ Ajay Kumar on two accounts: firstly, name of Ajay is not mentioned in the FIR (Ex.P/2) in clear terms. Name which is mentioned is some Azad and ; secondly, even PW-3 has not taken name of Pappu @ Ajay in categorical terms as an assailant and, therefore, we accord benefit of doubt in favour of Pappu @ Ajay and reverse his conviction under Sections 148 and 302/149 of IPC. Thus we allow Cr.A.No.1705 of 1996 filed on behalf of Pappu @ Ajay Kumar. He is acquitted from the charges under Sections 148 and 302/149 of IPC giving him benefit of doubt. As far as the other Cr.A.No.1628 of 1996 filed on behalf of appellants - Mohan Singh, Signature Not Verified Signed by: RAVIKANT KEWAT Signing time: 21-11-2024 17:07:03 NEUTRAL CITATION NO. 2024:MPHC-JBP:56815 8 CRA-1628-1996 Ramavtar, Munna @ Krishna Kumar and Narayan Prasad is concerned, is dismissed and their convictions are upheld and they are directed to surrender before the learned trial Court within 15 days from today to undergo remaining sentence.
15. The appellant- Pappu @ Ajay Kumar is on bail, his bail bond is hereby discharged.
16. Case property be disposed off as per order of the trial Court.
17. Record of the trial Court be sent back (VIVEK AGARWAL) (DEVNARAYAN MISHRA) JUDGE JUDGE rk.
Signature Not Verified Signed by: RAVIKANT KEWAT Signing time: 21-11-2024 17:07:03