Madhya Pradesh High Court
Harendra vs State Of M.P. on 21 August, 2019
Equivalent citations: AIRONLINE 2019 MP 922
Author: Vivek Agarwal
Bench: Vivek Agarwal
1 Cr.A. No. 751/2008 & Cr.A. No.774/2008
High Court of Madhya Pradesh
Bench at Gwalior
DIVISION BENCH: Hon.Shri Justice Anand Pathak &
Hon.Shri Justice Vivek Agarwal
Criminal Appeal No.751/2008
1. Chhunna (dead)
2. Bhopali S/o Prahlad Bohre, aged 46 years
R/o Village Machhand, P.S. Raun, District
Bhind.
-----Appellants
Versus
The State of M.P. Through Police Station
Raun, District Bhind, M.P.
---Respondent
Criminal Appeal No.774/2008
1. Harendra S/o Puttulal Bohre, aged 30
years R/o Village Machhand, P.S. Raon,
District Bhind.
-----Appellant
Versus
The State of M.P. Through Police Station
Roan, District Bhind, M.P.
---Respondent
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Shri Arvind Kumar Dwivedi, learned counsel for the appellant
assisted by Shri Sarvesh Singh Chouhan, learned counsel from
Legal Aid in Cr.A. No.751/2008
Shri Susheel Goswami, learned counsel for the appellant
assisted by Shri Vinay Kumar, learned counsel from Legal Aid
in Cr.A. No.774/2008.
Shri R.K. Upadhyay, learned Public Prosecutor for the
respondent/State in both the Criminal Appeals.
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Whether approved for reporting :
2 Cr.A. No. 751/2008 & Cr.A. No.774/2008
JUDGMENT
(Delivered on this 21st Day of August, 2019) Per Justice Vivek Agarwal :
These Criminal Appeals have been filed by the appellants being aggrieved by the judgment dated 01 st October, 2008 passed by the Court of Sessions Judge, Bhind in Sessions Case No.87/1999 convicting the appellants under the provisions of Section 302 of IPC with life imprisonment and fine of Rs.1000/- each and in case of default of fine, four months' additional imprisonment.
2. Before adverting to the submissions made by learned counsel for the parties, it will not be out of place to mention that during pendency of these appeals, appellant- Chhunna S/o of Prahlad has died, who was appellant No.1 in Criminal Appeal No.751/2008. Legal representatives of Chhunna have not preferred to be substituted. Thus, Criminal Appeal No.751/2008 stands abated for appellant No.1- Chhunna.
3. Learned counsel for the appellants submits that prosecution story in brief is that on 27.01.1999 at about 10.30 am when complainant Sahab Singh (P.W.1) was returning from his fields to his house, then on reaching Machhand bus stand he found that in front of house of Rakesh Dixit, his cousin brother Layak Singh, on the basis of old rivalry, was beaten by Harendra, Vinod, Guljari, Chhunna and Bhopali with lathi, farsa and axe. Vinod and Guljari were holding Layak Singh when 3 Cr.A. No. 751/2008 & Cr.A. No.774/2008 Harendra had hit 2-3 axe blows on the head of Layak Singh. Bhopali had hit Layak Singh with farsa on his face and temple, whereas Chhunna had beaten him with lathi and Lotan Bohre was standing at some distance with a gun in his hand threatening others that if anybody intervenes and tries to save Layak Singh, then he will hit such person with his gun. At that point of time, Hardyal, Dhantole (P.W.9), Ashok Singh (P.W.8), Uttam Singh (P.W.2) had reached there and had seen the incident.
4. Sahab Singh (P.W.1) had lodged dehati nalisi (Ex.P/1), on the basis of which FIR (Ex.P/19) was recorded.
5. As per dehati nalisi (Ex.P/1), which was lodged at 11.30 am, it is mentioned that on account of old enmity Harendra, Vinod, Guljari, Chhunna and Bhopali had beaten Layak Singh. Similar are the contents of FIR (Ex.P/19).
6. Leaned counsel for the appellants submits that though FIR was against six persons, only three persons have been convicted. It is submitted that none of the persons, who have claimed themselves to be eye witnesses, were present at the place of the incident and they all have falsely implicated the accused persons. It is also submitted that incident had allegedly taken place on the bus stop at about 10.30 am in front of house of Rakesh Dixit, as is evident from the spot map (Ex.P/2). None of the independent witnesses have been examined by the prosecution and prosecution has also not bothered to even examine Rakesh Dixit, in front of whose house such incident 4 Cr.A. No. 751/2008 & Cr.A. No.774/2008 had taken place. It is also submitted that there was no compliance of Section 157 Cr.P.C., inasmuch as copy of the FIR was not promptly sent to the concerned magistrate. It is also submitted that it was sent two days after recording of such FIR, which creates sufficient doubt about FIR being anti-dated and anti-timed.
7. It is submitted that prosecution had examined as many as twenty-two witnesses, out of which Dilip Tiwari (P.W.7) is hostile. Dilip Tiwari is a witness, who allegedly has a shop close to the place of the incident i.e. at Machhand bus stand but he has not supported the prosecution case.
8. Ashok Singh (P.W.8) is also a witness, who has a shop at the bus stand and has turned hostile. He too has not supported the prosecution story. Dhantole (P.W.9) is also hostile. Therefore, out of five witnesses cited by the complainant Sahab Singh as eye witnesses, namely; Hardayal, Dhantole, Hari Singh, Ashok Singh and Uttam Singh, two namely; Dhantole and Ashok Singh have turned hostile, whereas prosecution has not examined Hardyal as a witness in support of his case.
9. Balram Singh (P.W.10), Laxman (P.W.11), Shatrughan Singh (P.W.14) , Mahesh Sing Kushwah (P.W.15), Rampal Singh (P.W.16), Devendra Singh (P.W.17), Mullu Singh (P.W.18), Santosh (P.W.21) and Ratan Singh (P.W.22) have turned hostile and have not supported the prosecution case.
10. It is submitted that Atar Singh (P.W.4) is a witness of lash 5 Cr.A. No. 751/2008 & Cr.A. No.774/2008 panchnama (Ex.P/3) and safina form (Ex.P/4). He has categorically deposed in cross-examination that when panchnama proceedings were drawn, then no family member of Layak Singh was present at the place of the incident. Therefore, it is submitted that presence of so called prosecution eye witnesses becomes doubtful in the light of the testimony of Atar Singh (P.W.4), who has not been declared hostile.
11. Similarly, it is submitted that Beerbal (P.W.5) is a witness of seizure memo (Ex.P/5), safina form (Ex.P/4) and naksha panchayatnama (Ex.P/3). Puttulal (P.W.6) is a witness of arrest of Harendra vide Ex.P/6 and has deposed that in front of him Harendra had given statement to the police that he has kept an axe at his house and then police had taken out such axe from the house of Harendra. However, it is pointed out that though in Ex.P/6, arrest of Harendra has been shown from Machhand on 02.02.1999 at 17.35 hours and his memorandum (Ex.P/7) was prepared at 17.40 hours but according to Puttulal (P.W.6), he was called at police station from his house and he had seen Harendra sitting at the Police Station where he had signed on the arrest memo. This witness has admitted that there are several houses of 'Khangars', behind the house of Harendra but during preparation of seizure memo, none of the independent witnesses were called and he alone was taken by the Police to the house of Harendra. This witness has admitted that he is cousin brother of Layak Singh, therefore, it is submitted that this witness is an 6 Cr.A. No. 751/2008 & Cr.A. No.774/2008 interested witness and not an independent witness, therefore, proceedings of seizure gets vitiated.
12. Reading evidence of Dr. S.K. Singh Niranjan (P.W.12), it is submitted that Dr. Singh had conducted postmortem on the body of Layak Singh being brought by Constable Ram Prasad on 27.1.1999 and such body was identified by Puttu Singh. Following injuries were found on the body of Layak Singh namely;
pksV dza0&1 dVk gqvk ?kko ftldk vkdkj lk<s rhu bap vk/kk bap x fnekx ds inkFkZ dh xgjkbZ rd gksdj flj ds cak;s QzUVksiSjkbZVy jhtu ij fLFkr Fkk A ?kko ds fdukjs ykykeh fy;s gq, Fks vkSj ?kko esa tek gqvk [kqu mifLFkr Fkk A bl pksV dks [kksyus ij flj dh eaklisf'k;ka dV xbZ Fkh A cka;h iSjkbVy o QzUVy gM~Mh dVh gqbZ Fkh A fnekx dh f>fYy;ka o fnekx ds cka;s QzUVy o iSjkbVy yksc Hkh {kfrxzLr gks x;k FkkA fnekx ds inkFkZ dh {kfrxzLr dk vkdkj rhu bap x vk/kk bap x vk/kk bap dk FkkA {kfrxzLr fnekx ds inkFkZ ds vanj tek gqvk [kwu mifLFkr Fkk A pksV dza& 2 dVk gqvk ?kko ftldk vkdkj <kbZ bap x vk/kk bap x gM~Mh dh xgjkbZ rd gksdj flj ds ck;sa iSjkbVy {ks= esa pksV daz- 1 dh cxy esa yEcor~ fn'kk esa fLFkr FkkA ?kko ds vanj o ckgj tek gqvk [kwu mifLFkr FkkA bl pksV esa gM~Mh dks dkbZ pksV ugha ikbZ xbZ FkhA pksV dza0 &3 dVk gqvk ?kko ftldk vkdkj Ms<+ bap x vk/kk bap x vk/kk bap dk gksdj xnZu ds lkeus dh rjQ ysfjaft;y izksVksxzsu ds uhps fLFkr FkkA ?kko ds fdukjs ykyeh fy;s gq;s Fks o ?kko ds vanj o ckgj tek gqvk [kwu ekStwn FkkA bl pksV dks [kksyus ij xnZu dh ekalisf'k;ka o 'okla uyh dh fjaXl dVh gqbZ ikbZ xbZ FkhA {kfrxzLr 'okal uyh dk fgLlk tes gq;s [kwu ls Hkjk gqvk FkkA 7 Cr.A. No. 751/2008 & Cr.A. No.774/2008 pksV dza0&4 dVk gqvk ?kko ftldk vkdkj lk<s rhu bap x ,d bap x es:n.M ds xnZu okys fgLls dh xgjkbZ rd dk FkkA xnZu ds lekus dh rjQ ysfjaft;y izksVksxzsu ds Åij fLFkr FkkA bl ?kko ds fdukjs ykyeh fy;s gq;s Fks o ?kko ds vanj o ckgj tek gqvk [kwu ekStwn FkkA bl ?kko dks [kksyus ij xnZu dh ekalisf'k;ak 'okaluyh] vkgkj uyh rFkk vU; xnZu dh lajpuk;sa ?kko dh fn'kk esa dVh gqbZ ikbZ xbZ FkhA xnZu ds nksuks rjQ dkWeu dSjksVsM vkVhZ ¼/keuh½ dVh gqbZ ikbZ xbZ Fkh rFkk tcMs dh gMMh Hkh dVh gqbZ ikbZ xbZ FkhA es:n.M dh gfM~M;ksa dks dkbZ pksV ugha ikbZ FkhA pksV dza0&5 dVk gqvk ?kko ftldk vkdkj <kbZ bap x vk/kk bap x gMMh dh xgjkbZ rd gksdj nkfgus xky ij fLFkr FkkA ?kko ds fdukjs ykyeh fy;s gq;s Fks o ?kko ds vanj o ckgj tek gqvk [kwu mifLFkr FkkA bl pksV dks [kksyus ij psgjs dh ekalisf'k;ka dVh gqbZ ikbZ xbZ Fkh o nka;h eSfDtyk cksu Hkh dVh gqbZ ikbZ xbZ FkhA pksV dza0& 6 dVk gqvk ?kko ftldk vkdkj <kbZ bap x vk/kk bap x gM~Mh dh xgjkbZ rd gksdj ck;sa xky ij yEco~r fn'kk esa fLFkr FkkA bl ?kko ds fdukjs ykyeh fy;s gq;s FksA ?kko ds vanj o ckgj tek gqvk [kwu mifLFkr FkkA bl pksV dks [kksyus ij ck;sa xky dh ekal& isf'k;ka rFkk cka;h eSfDtyk gM~Mh {kfrxzLr ikbZ xbZ FkhA pksV dza0&7 dVk gqvk ?kko ftldk vkdkj <kbZ x vk/kk bap x gM~Mh dh xgjkbZ rd gksdj ck;sa da/ks ij vkMh fn'kk esa fLFkr FkkA ?kko da fdukjs ykykeh fy;s gq;s Fks rFkk ?kko ds ckgj o vanj tek gqvk [kwu mifLFkr FkkA bl pksV ds }kjk da/ks dh ekalisf'k;ak {kfrxzLr ikbZ xbZ FkhA o gM~Mh esa dksbZ pksV ugha ikbZ xbZ FkhA
13. It is submitted that Dr. S.K. Singh Niranjan (P.W.12) has mentioned in his postmortem report (Ex.P/13) that cause of death was excessive bleeding resulting in syncope and the death was homicidal. It is submitted that doctor has clearly found undigested food in the stomach cavity and has deposed in para-7 8 Cr.A. No. 751/2008 & Cr.A. No.774/2008 that deceased must have consumed food six hours prior to the incident and further deposed that after death, process of digestion stops. Reading such evidence of Dr. S.K. Singh Niranjan (P.W.12) it is submitted that when incident took place at 10.30 am, then it means that deceased had consumed food at 4.30-5.00 am, which is improbable by all standards and this substantiates the submissions of the appellants that death had taken place at an earlier point of time but incident has been narrated to have taken place at 10.30 am. It is also submitted that doctor has admitted that injuries caused on the neck could not have been caused from behind and further has asked for co- relation with circumstantial evidence.
14. Sub Inspector, Anaar Singh (P.W.13) had arrested Harendra on 02.02.1999 and had also prepared seizure memo (Ex.P/8). He had taken statements of Dhantole, Hardyal Jatav, Satrughan Singh Sarpanch, Devendra Singh conductor, Mahesh Singh, Rampal Singh, Ratan Singh, Devla etc. It is pointed out that this witness has admitted that if anybody comes to report a matter at Police Chowki, then such report is recorded. No report was recorded at Machhand Chowki close to the Machhand bus stand. Thus, it is submitted that Sahab Singh (P.W.1) instead of recording FIR at Machhand Chowki lodges dehati nalisi (Ex.P/1) when police personnel had reached there creates doubt about the presence of so called eye witnesses as if Sahab Singh (P.W.1) was present at the time of incident, then he would have 9 Cr.A. No. 751/2008 & Cr.A. No.774/2008 approached Machhand Chowki at once. It is also submitted that this witness Anaar Singh (P.W.13) has admitted that he was going to Police Station Raun when he had received intimation from Superintendent of Police about the incident and therefore, he had reached the place of incident. It is also submitted that time of lodging of dehati nalisi is 11.30, whereas this witness Anaar Singh (P.W.13) had reached place of incident at about 2 0'clock. He admitted that in Ex.D/3, case diary statement of Hari Singh (P.W.3), he had deposed that he had reached home from the fields when he had received information that at bus stand his brother Layak Singh has been killed by Harendra and others due to old enmity, then he had reached the bus stand. He also admitted that this witness clearly deposed that when he reached there, he saw his brother lying dead. Reading such evidence of Anaar Singh (P.W.13), it is submitted that Hari Singh (P.W.3) is not an eye witness and therefore, his testimony cannot be used to convict any of the accused persons.
15. It is also submitted that this witness has admitted that Hari Singh (P.W.3) had not informed him in his case diary statements (Ex.D/3) that he was going to Maghan, which is again contrary to the Court statements of Hari Singh (P.W.3), inasmuch as in Court statements this witness has deposed that he was going to Maghan in 'faldan' for which when he reached the bus stand, he saw the incident. Thus, submitting that there are glaring contradictions in the testimony of Hari Singh (P.W.3) vis-a-vis 10 Cr.A. No. 751/2008 & Cr.A. No.774/2008 Anaar Singh (P.W.13), who had taken case diary statements, presence of Hari Singh (P.W.3), at the place of incident, is not proved beyond doubt. In fact, Hari Singh (P.W.3) has admitted that when Police had reached the spot he had not asked the Police to take his statement or had informed them that he had seen the incident. He also admitted that he had not seen Lotan and Vinod at the place of the incident.
16. Anaar Singh (P.W.13) has admitted in para-6 of his cross- examination that Ashok Singh (P.W.8) had given his case diary statements (Ex.P/10) in which he had informed that he had visited the house of Uttam Singh (P.W.2) and had informed him about death of Layak Singh. This statement of I.O., Anaar Singh (P.W.13), who has neither been declared hostile nor any contradiction could be extracted from him belies the presence of Uttam Singh (P.W.2) at the place of incident, inasmuch as in case diary statements (Ex.P/10), Ashok Singh (P.W.8) has clearly deposed that when at 10.30 he had reached hotel, then he had seen dead body of Layak Singh Yadav lying in front of house of Rakesh Dixit and when he inquired about such incident, then neighbouring shop keepers started closing their shops but he had come to know that Harendra Bohre had killed Layak Singh causing injuries with an axe. Thereafter, he had informed Uttam Singh about the incident at his house. When these statements of Anaar Singh (P.W.13) are examined to verify the authenticity of the statements of Uttam Singh (P.W.2), then 11 Cr.A. No. 751/2008 & Cr.A. No.774/2008 presence of Uttam Singh, at the place of incident, becomes doubtful.
17. Uttam Singh (P.W.2) in his case diary statements (Ex.D/2) has admitted that on 27.01.1999 he was at his home when at about 10.30 am Ashok Yadav had visited him and informed about murder of Layak Singh in the hand of Harendra etc. There is over writing in the case diary statements of Uttam Singh (P.W.2), but one thing is clear that when case diary statement of Uttam Singh (P.W.2) is read alongwith Anaar Singh Sikarwar (P.W.13 ) it is clear that Uttam Singh was not present at the place of the incident and he too is not an eye witness to the incident.
18. Uttam Singh (P.W.2) has admitted that when he had seen the incident, then his bullock cart was with him. He has denied suggestion that Ashok had given him intimation at his home and has also denied his case diary statements. He has also denied to narrate distance between his house and Machhand Chowki. Reading these omissions and contradictions, it is submitted, are sufficient to discard testimony of Uttam Singh (P.W.2). It is further submitted that in cross-examination, Uttam Singh (P.W.2) has admitted that at the time of the incident shops were open, then he had come back to his house. It is also submitted that there is material contradiction in the testimony of Uttam Singh (P.W.2). Admittedly in his examination-in-chief, he deposed that he was going back from his fields (haar) on his 12 Cr.A. No. 751/2008 & Cr.A. No.774/2008 bullock cart and when he had reached bus stand he had seen the incident but in para-6 of his cross-examination, he has admitted that his land is in Nandepura Mouje and bus stand is not on way to Nandepura Mouje from his house. In view of these admitted facts, testimony of Uttam Singh (P.W.2) can also not be relied as that of an eye witness.
19. Anaar Singh (P.W.13) has admitted that in their case diary statements, witnesses Hardyal, Balram, Dhantole, Dilip, Satrughan Singh, Devlal, Santosh, Rampal Singh, Ratan Singh had not shown presence of Vinod, Guljari, Bhopali or Lotan at the place of the incident. Thus, reading such evidence, it is submitted that besides three acquitted accused persons, presence of Bhopali has also not been shown by prosecution witnesses and therefore, conviction of Bhopali, merely on the ground that he was wielding a farsa and farsa is capable of causing incised wound injuries found on the dead body of deceased Layak Singh are not sufficient circumstances to convict Bhopali.
20. In relation to Harendra, it is submitted that Anaar Singh (P.W.13) has admitted that his house is double storied. He had not called any ward member or Sarpanch as a witness. He is not in a position to narrate as to on which part of the clothes of Harendra blood was sticking, as he had not recorded such fact. This witness has also admitted that he did not get the 'pant' (trouser) and 'baniyan' of Harendra identified. He also admitted that persons close to the place of the incident could have been 13 Cr.A. No. 751/2008 & Cr.A. No.774/2008 the natural witnesses but they were not examined. Reading such evidence, it is submitted that neither clothes of the accused Harendra Bohre nor the axe i.e. weapon allegedly used were subjected to any FSL testing to corroborate any blood stains and their grouping. All the witnesses, Dhantole (P.W.9), Balram Singh (P.W.10), Mahesh Singh Kushwah (P.W.15), Rampal (P.W.16) and Devendra Singh (P.W.17) have deposed that deceased was attacked with an axe from behind but Dr. S.K. Singh (P.W.12) has deposed that injuries found on the body of the deceased could not have been caused from behind.
21. R.B.S. Sikarwar (P.W.19) is author of dehati nalisi (Ex.P/1). He has admitted that dehati nalisi (Ex.P/1) was recorded at the instance of Sahab Singh (P.W.1) and before his reaching the spot, Police Chowki had received news of death of Layak Singh. This witness has admitted that Superintendent of Police and senior Police Officers had reached the place of incident and report was lodged after arrival of Superintendent of Police. He has further deposed that complainant had not lodged report to him and had said that he shall give his report only on arrival of Superintendent of Police. This witness has admitted that he had not taken statements of persons living in close vicinity of house of Rakesh Dixit. He had not taken statements of Rakesh Dixit. Reason for such laxity is that since S.H.O. had reached at the place of the incident, therefore, he had handed over case diary to S.H.O. He admitted that he does not know 14 Cr.A. No. 751/2008 & Cr.A. No.774/2008 who had given intimation of murder of Layak Singh at Machhand Chowki.
22. Anand Ram Sharma (P.W.20) is a retired Head Constable. He had received dehati nalisi through Constable Raghuvir Singh on which he had registered FIR (Ex.P/19). He admits that whenever FIR is lodged its entry is made in roznamcha sanha and in FIR (Ex.P/19) column of roznamcha sanha number is blank. He even could not reveal the dispatch number vide which FIR was forwarded to the magistrate.
23. Therefore, it is submitted that after having established that so called eye witnesses Uttam Singh (P.W.2) and Hari Singh (P.W.3) are not relevant eye witnesses and their presence at the place of the incident is doubtful, therefore, only eye witness, whose evidence needs to be scrutinized, is Sahab Singh (P.W.1).
24. Reading testimony of Sahab Singh (P.W.1), it is submitted that this witness has admitted that Puttu Singh, father of accused Harendra, was murdered 25-30 years ago and Sahab Singh and Hari Singh i.e. P.W.1 and P.W.3 are the accused persons for such murder. He has admitted that Kalicharan and Kanhaiyalal were real brothers and he is son of Kanhaiyalal, whereas Hari Singh is son of Kalicharan and therefore, they both are cousin brother. He admitted that Kalicharan was murdered but did not name the accused persons in that case. This witness has admitted that out of fear he had not gone to the spot where such incident was taking place and had watched it from a distance of 100-200 15 Cr.A. No. 751/2008 & Cr.A. No.774/2008 steps by hiding himself behind jhala. This witness has further deposed that after incident he had straightaway gone to Machhand Chowki where one Constable was available but he had refused to take his report and had asked him to wait for S.P. Reading such testimony, it is submitted that when S.P. already had an intimation and according to Sahab Singh (P.W.1) incident had taken place for a duration of 10-15 minutes, then it clearly reveals that in fact dead body of Layak Singh was found at the bus stand and then whole story has been cooked up to frame accused persons with whom there is an old rivalry. It is also submitted that in his case diary statements (Ex.D/1), Sahab Singh (P.W.1) has admitted that when Police had reached the spot, then he lodged the report. This is contrary to his Court statements where he has deposed that he had gone to the Police Chowki where his report was not taken. Such statement of fact is missing in his case diary statements (Ex.D/1). It is also submitted that in case diary statements (Ex.D/1), this witness has admitted that Harendra is son of Puttulal and Puttulal was murdered in which case they were accused persons and since then their rivalry is going on. It is also submitted that in case diary statement (Ex.D/1), he has not deposed that he was standing in the background of a jhala from where he watched such incident and such contradictions and omissions when read with case diary statements of Ashok Singh (P.W.8), makes it abundantly clear that even Sahab Singh (P.W.1) had not present 16 Cr.A. No. 751/2008 & Cr.A. No.774/2008 on the spot and he reached there subsequently. This witness has also admitted that at the time of preparation of the spot map he had not revealed as to at which place accused were standing and where this witness was standing.
25. In view of such evidence, it is submitted that prosecution has cooked up a story and therefore, it is a case of no direct evidence and since prosecution has failed to prove the circumstances pointing out towards the guilt of the appellants alone, it is a fit case for acquittal.
26. Learned Public Prosecutor, on the other hand, submits that evidence of Sahab Singh (P.W.1) is sufficient to record conviction, inasmuch as it is settled principle of law that even a single eyes witness if gives testimony which is corroborated with medical evidence and is trustworthy, then even if such witness is a relative of deceased, then his testimony can be believed to record a finding of conviction.
27. After hearing arguments of learned counsel for the parties and going through the record it is evident that weapon of assault was not sent to FSL for reporting. Certain facts are undisputed:
(i) Death of Layak Singh was homicidal and he had suffered as many as seven incised wounds on various parts of the body, which have been certified by Dr. S.K.Singh Niranjan (P.W.12).
Out of these injuries, injury No.1 was brain deep on the left hand side of fronto parietal region. Injury No.2 was bone deep on left parietal region by the side of injury No.1. Injury No.3 17 Cr.A. No. 751/2008 & Cr.A. No.774/2008 was a wound on the front of the neck below laryngeal protuberance, as a result of which muscles and air pipe of the neck was torned. Injury No.4 was on spinal cord on the side of the neck. These injuries were fatal to life and because of these injuries, there was excessive blood loss resulting in the state of syncope. Death was homicidal in nature.
(ii) It is also not disputed that there has been enmity between the complainant party and the accused persons, inasmuch as father of appellant Harendra, namely Puttulal Bohre was murdered by the accused viz; Sahab Singh (P.W.1) and Hari Singh (P.W.3).
(iii) It is also an admitted position that Ashok Singh (P.W.8) in his case diary statement (Ex.P/10) admitted that he had given intimation to Uttam Singh (P.W.2) at his residence. It is also an admitted position as is revealed from this statement that Ashok Singh (P.W.8) is hearsay witness for implicating Harendra Bohre, inasmuch as when he had reached the place of incident, then he had seen dead body lying in front of the house of Rakesh Dixit. Rakesh Dixit and shop keepers of vicinity had informed him that Harendra had murdered Layak Singh hitting him with an axe.
28. Though Ashok Singh (P.W.8) is hostile but two facts narrated by him could not be controverted by the prosecution witnesses, namely; he had informed Uttam Singh (P.W.2) about death of Layak Singh. When he had reached the place of 18 Cr.A. No. 751/2008 & Cr.A. No.774/2008 incident, none of the relatives of the deceased Layak Singh were present on the scene of crime.
29. Anaar Singh (P.W.13), Sub Inspector, has admitted that witnesses Hardayal, Balram, Dhantole, Dilip, Shatrughan Singh, Devlal, Santosh, Rampal Singh and Ratan Singh had not shown presence of Vinod, Guljari, Bhopali, Lotan at the place of incident. This clearly reveals that except for the interested prosecution witnesses, none of the other witnesses had given name of Bhopali, who is surviving appellant in Cr.A.No.751/2008.
30. It is apparent beyond doubt that Uttam Singh (P.W.2) and Hari Singh (P.W.3) were not present at the place of incident. Sahab Singh (P.W.1), author of the FIR, has clearly mentioned that he had seen the incident from behind jhala and the distance from where he viewed the incident is about 100-200 steps from where he was viewing the crime. His statement that he had gone to the Police Chowki Machhand to lodge report has been contradicted inasmuch as report was lodged on the spot and he was returned after arrival of the S.P. There is contradiction in the story of Sahab Singh (P.W.1) and other prosecution witnesses, namely; Anaar Singh (P.W.13), R.B.S. Sikarwar (P.W.19) and Anand Ram Sharma (P.W.20), inasmuch as when Sahab Singh (P.W.1) had allegedly reached Police Chowki, then as per own version of Sahab Singh, Constable available at the Police Chowki informed him that S.P. is on his way and he shall take 19 Cr.A. No. 751/2008 & Cr.A. No.774/2008 his report on arrival of S.P. As per Sahab Singh (P.W.1), distance of Police Chowki from the place of the incident is about one furlong. He was watching such incident from a distance of over 200 steps. Incident had lasted for 5-10 minutes. Therefore, if this statement is to be believed, then he should have been the first informant at the Police Chowki, Machhand. There is no occasion for anybody else to bring such crime to the notice of S.P. These circumstances clearly points out that when evidence of Ashok Singh (P.W.8) is read in its totality, then none of the relative of the deceased Layak Singh were present on the spot. Therefore, this is not a case of eye witness account.
31. If the case is not based on eye witness account and the evidence of eye witnesses do not inspire confidence, then the alternative is to view such case from the point of circumstantial evidence.
32. The prosecution witnesses have narrated that incident took place at 10.30 am If incident took place at 10.30 am, then Dr. S.K.Singh Niranjan (P.W.12) has reported undigested food in the stomach cavity of the deceased and has opined that deceased must have consumed food about 6 hours prior to his death. Even in the rural area consuming food at 4.30 or 5.00 am in the morning appears to be strange coupled with the fact that Sahab Singh (P.W.1), who has deposed that he had left for his field at 6.00 am did not say that they take food at such early hours of morning and then go for work. Thirdly, enmity between two 20 Cr.A. No. 751/2008 & Cr.A. No.774/2008 parties is an admitted position. None of the witnesses have seen the crime and chain of circumstances is not complete. Rakesh Dixit has not been examined by the prosecution. No independent witness has supported the case of the prosecution and more over Devendra Singh (P.W.17) has admitted that he was Conductor on the bus and has denied that he had seen Layak Singh sitting in front of the house of Rakesh Dixit. He also denied that Harendra had attacked Layak Singh from behind on his head and had hit one axe on his head, resulting in death of Layak Singh. This testimony of Devendra Singh (P.W.17) when examined in the light of the statement of Dr. S.K. Singh Niranjan (P.W.12) that no injury was caused to the deceased from behind belies the prosecution story because after being declared hostile, suggestion given to this witness is that Harendra had attacked deceased Layak Singh from behind, which is contrary to medico legal evidence. Therefore, there is conflict between ocular evidence as well as medical evidence.
33. It appears that learned trial court glossed over the fact that dead body was already lying on the bus stand and it was noticed in the early hours of the morning when intimation was given to police and thereafter with a view to frame an old enemy whose father was allegedly murdered by Sahab Singh (P.W.1) and Hari Singh (P.W.3), Harendra and others have been framed.
34. As the prosecution has failed to prove the guilt of the accused beyond reasonable doubt, therefore in the light of the 21 Cr.A. No. 751/2008 & Cr.A. No.774/2008 law laid down by the Hon'ble Supreme Court in the case of Sarwan Singh Rattan Singh Vs. State of Punjab as reported in AIR 1957 SC 637, wherein it was observed by the Hon'ble Supreme Court as under :-
"(12) ....... It is no doubt a matter of regret that a foul cold blooded and cruel murder like the present should go unpunished. It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants.
Mr. Gopal Singh contended that, considered as a whole the prosecution story may be true;
but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence."
35. Appeals are allowed. Conviction of appellants is hereby set aside. Appellant- Harendra in Cr.A. No.774/2008 is on bail. His bail bonds stands discharged. Appellant- Bhopali in Cr.A. No.751/2008 is in jail. He be released forthwith if not required in any other case.
(Anand Pathak) (Vivek Agarwal)
Judge Judge
shanu
SHANU RAIKWAR
2019.08.21
18:37:43 -07'00'