Madhya Pradesh High Court
Ramautar Singh vs State Of M.P. on 29 June, 2017
Author: Sanjay Yadav
Bench: Hemant Gupta, Sanjay Yadav
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CRA-93-2007
HIGH COURT OF MADHYA PRADESH :
BENCH AT GWALIOR
Criminal Appeal No.93/2007
Ramautar Singh ...Appellant
versus
State of M.P. ...Respondent
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CORAM :
Hon'ble Shri Justice Hemant Gupta, Chief Justice
Hon'ble Shri Justice Sanjay Yadav
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Whether approved for reporting : Yes/No
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JUDGMENT
(29.6.2017) Per Sanjay Yadav, J.
Appellant stands convicted for an offence under Section 302 of the Indian Penal Code vide judgment-dated 20.1.2007 passed by Seventh Additional Sessions Judge, Gohad District Bhind in Session Trial No.26/2006, on the charge of having murdered Gajraj Singh @ Mehete, son of Brijendra Singh by gun shot from his licenced 12-bore single barrel gun.
2. Investigation was set in motion with lodging of complaint by Brijendra Singh (PW3) on 9.11.2005 at 13:45 Hrs. at Police Station Gormi District Bhind, that at 1 PM :: 2 ::
CRA-93-2007 Ranveer (PW5) informed that the appellant has shot dead Gajraj Singh and his body is lying in the field of Narottam Singh (PW2). When the complainant Brijendra Singh along with his brother Dheersingh, son Jahar Singh (PW6) and other persons in the locality reached the place of occurrence, they saw the body lying in the field and the blood was oozing from the injuries caused at the chest. That, the appellant sells liquor and had the animosity with his son because he opposed the appellant in Panchayat Elections. An offence under Section 302 of the Indian Penal Code was registered vide Crime No.196/2005. During investigation, the appellant was apprehended on 18.11.2005.
3. Investigation led to preparation of Spot Map (Ex.P/7) with the help of Brijendra Singh (PW3). Ordinary and blood stained earth as also clothes of the deceased were collected from the spot. An empty cartridge (used) with a print 'Shaktiman Express' was recovered from in-front of appellant's house. Arms licence was seized from the almirah of appellant vide Ex.P/3. All the seized articles viz. ordinary and blood-stained earth, appellant's clothes and gun were :: 3 ::
CRA-93-2007 forwarded to the FSL, Sagar for chemical and ballistic examination. After inquest proceedings, the dead body of Gajraj was sent for post-mortem examination. Dr. R.K. Taneja (PW4) who conducted the autopsy, opined that the cause of death was shock and haemorrhage due to injury on vital organ caused by firearm. After completion of investigation, charge sheet was filed before Judicial Magistrate First Class, Mehgaon District Bhind who committed the case to the Court of Session for trial.
4. The appellant was charged for an offence of culpable homicide amounting to murder. He abjured his guilt and claimed to be tried. In the statement recorded under Section 313 of the Code of Criminal Procedure, 1973, the appellant further stated that he has not committed any offence and has been falsely implicated.
5. The prosecution in order to establish the charge, examined as many as 9 witnesses. One Kanhaiyalal Sharma was examined by the appellant in his defence.
6. Upon appraisal of the entire evidence on record, learned trial Judge, for the reasons assigned in the impugned :: 4 ::
CRA-93-2007 judgment, concluded that the charge of murder against the appellant was proved beyond a reasonable doubt. He, accordingly, convicted the appellant under Section 302 IPC and sentenced him to life imprisonment and to pay fine of Rs.100/- with default stipulation.
7. We have perused entire record and heard the appellant who is produced before this Court from jail.
8. Prosecution witnesses namely Brijendra Singh (PW3), Ranveer (PW5), Jahar Singh (PW6) and Narottam Singh (PW2) deposed that Gajraj Singh died of gunshot.
9. Autopsy Surgeon Dr. R.K. Taneja (PW9) testified that on external examination of the dead body, following injuries were found :
Rigor mortis present, eyes and mouth closed, body was in supine position. Clothes : black tea shirt with burn area of 1" diameter near epigastrium, baniyan (vest) blood soaked with the burn over the said area, piercing muscles and intestine from the wound, circled wound with interal region lacerated place at epigastrium area, no blackish, no tattooing present around the wound, incised wound size 1 cm in length was placed over mis-scapular on left side, no blackish, no tattooing present.
And, on internal examination, he noticed :
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CRA-93-2007 "fractures were found on 3rd to 8th ribs on left side, lungs are lacerated and blood was in the cavity, some liquid material was available in the abdomen; spleen and kidney lacerated."
10. Thus, the cause of death of Gajraj was because of gunshot injury is beyond any doubt. The question, however, is whether the gunshot is attributed to the appellant.
11. The prosecution could not produce any direct evidence witnessing the appellant shooting the deceased. The lead witness is Ranveer (PW5). It is he who reported the matter to complainant Brijendra Singh (PW3) that on 9.11.2005 at 12:30 PM, while at his well and the field, he heard a fire shot and when he approached the spot, saw the appellant standing with gun in his hand and was reloading the same. Whereas, Gajraj Singh was lying in the field. In Paragraph 4 and 6 of his testimony, this witness states that :
**4- rks xtjkt flag us eq>ls dgk fd eS jkevorkj vkjksih ds ;gka ls yste ysus tkrk gwW D;ksafd oks Hkh gekjs ;gka ls t:jr iM+us ij yste ys tkrs gSA ;g ckr lgh gS fd jkevorkj vkSj e`rd xtjkt flag ds vPNs laca/k Fksa esjs fglkc ls buesa dksbZ fdlh izdkj dh jaft'k cxSjgk ugha FkhA eq>s ekywe ugha gS fd xtjkt flag 'kjkc ihrk Fkk ;k ughaA tc xtjkt flag yste ysus x;k rks eSa viuh V~;wc cSy ds ikl tks frofj;k ¼edku½ cuk gS mlesa tkdj cSB x;kA V~;wc cSy ls xtjkt flag ds tkus ds ckn eSus 8&10 fefuV ckn :: 6 ::
CRA-93-2007 xksyh pyus dh vkokt lquhA xtjkt flag iSny x;k FkkA esjs V~;wc cSy ls iSny ujksRre ds [ksr rd tk;s rks 7&8 fefuV dk le; yxsxkA vkSj ;fn esjs V~;wc cSy ls jkevorkj ds ?kj rd tk;s rks 10&12 fefuV dk le; yxsxkA ;g ckr lgh gS fd xtjkt jkevorkj ds ?kj rd ugha igWqpk Fkk mlls ifgys gh xksyh yx x;h FkhA tc eS yk'k ds ikl vU; yksxksa ds lkFk igqWpk rks yste eq>s ugha fn[kh FkhA tc eS xksyh dh vkokt lqudj ckgj vk;k rks xtjkt flag iM+s gq;s fn[kk;h ns jgs FksaA xtjkt flag esjh frofj;k ls djhc 70 xt dh nwjh ij iM+s gksaxsA
---
6- jkevorkj }kjk canwd yksM dj jgk Fkk mlds Mj ds dkj.k eSa yk'k rd ugha x;k FkkA jkevorkj us esjh vksj fu'kkuk lk/kdj canwd yksM ugha dh Fkh esjs Åij jkevorkj us dksbZ Qk;j ugha fd;kA xtjkt ds Åij dsoy ,d Qk;j fd;k FkkA jkevorkj eq>s ns[kdj Hkkx x;k FkkA tc eSa ?kj dh rjQ pyk Fkk rc vkjksih djlksfu;k iqjk dh rjQ x;k FkkA eSa ?kj dh rjQ 200 gkFk fudy x;k Fkk rc vkjksih Hkkxk Fkk blfy;s eS xtjkt dh yk'k ds ikl ugha x;k FkkA canwd dh tks ifgyh vkokt eSaus lquh Fkh og dgka ls pyh Fkh] vkSj fdlus pyk;h Fkh ;g eSus ugha ns[kk Fkk jkeLo:i c?ksy dk [ksr ujksRre ds [ksr ds ikl gS edku ugha gSA vyhflag dk edku ujksRre ds [ksr ls yxk gS vkSj mlesa vyh dk edku Hkh cuk gSA tgka ij xtjkt iM+k Fkk ogk ls vyh dk edku 150 gkFk dh nwjhij gksxkA vyh ds edku esa vyh vkSj mldk ifjokj jgrk gSA ;g ckr lgh gS fd esjs firkth ds uke ls
12 cksj canwd dk yk;lsla gSA ;g dguk xyr gS fd cnek'kksa ds Hk; ls canwd V~;wc cSy ij jgrh gSA ;g ckr lgh gS fd xtjkt ds vkSj jkevorkj ds vPNs laca/k Fks rFkk pquko esa xtjkt us jkevorkj dk leFkZu fd;kA eq>s bl ckr dh tkudkjh ugha gS fd jkevorkj us xtjkt dks canwd ls xksyh D;ksa ekjhA eS ?kVuk LFky ls ?kj rd 15 fefuV esa vk x;k FkkA vkSj eSus ?kVuk ds ckjs esa vius ?kj okyksa dks crk fn;k FkkA**
12. Thus, there was no previous enmity between the :: 7 ::
CRA-93-2007 appellant and Gajraj Singh (since deceased) and that he did not see as to who fired the gun. In view whereof, the witness, PW5, who was in the close proximity of the place and time of incident does not know who shot the gun.
13. Furthermore, Investigating Officer Rajesh Sharma (PW8) seized the empty cartridge from in-front of the house of the appellant and the gun from his possession. These articles were sent for forensic examination, the report whereof is brought on record as Ex.P/12. The relevant part thereof which deals with the gun and empty cartridge is extracted below :
**izn'kZ ,&1 ,d 12 cksj dh QsDVªh fufeZr bdukyh czhp yksfMax cUnwd gSA ;g pkyw gkyr esa gSA bldh cSjy esa bls pyk;s tkus ds vo'ks"k ik;s x;sA bls vafre ckj pyk;s tkus dh laHkkfor vof/k oSKkfud fuf'pRrk ls crkuk laHko ugha gSA bls pykdj izk.k&?kkrd pksVsa igqapkbZ tk ldrh gSA izn'kZ bZ&th ,d 12 cksj dk pys gq;s dkjrwl dk [kks[kk gSA bldh ijD'ku dsi iapj gS ftlls feyku gsrq Qk;fjax fiu dk fu'kku miyC/k ugha gSA bl ij mifLFkfr czhp Qsl ekdZl~ dk MkVk fu.kkZ;d feyku gsrq i;kZIr ugha gSA vr% bls 12 cksj osiu] tSls fd iz-,&1] ls pyk;k x;k gS ijarq feyku ds vHkko esa ;g crkuk laHko ugha gS fd bl cUnwd iz-&,1 ls gh pyk;k x;k gS vFkok ughaA**
14. Thus, even the opinion of the forensic expert does not :: 8 ::
CRA-93-2007 support the prosecution story that Ganjraj Singh died of injuries from the gunshot fired from the gun owned by the appellant.
15. The trial Court, as is evident from the finding in Paragraph 19 and 21 of the impugned judgment, has glossed over this aspect that, unless it is established beyond doubt that the death which though is due to gunshot injury but the fire is attributed to the appellant, a guilt cannot be drawn at home merely because the appellant was seen with the gun near the body of the deceased.
16. In Brijpal Singh vs. State of M.P. (2003) 11 SCC 219, it has been held :
"7 ...If this evidence is examined in the light of the report of the ballistic expert, it is seen from the said report after comparing the bullet with the weapons microscopically, the ballistic expert had reported though both the guns were found to have been discharged recently the empty cartridges that were seized from the spot did not compare with the mouser rifle. He also opined that the pieces of bullet taken out of the wall could have been fired by a similar rifle seized from the appellant (the mouser rifle). This report of the ballistic expert shows, in our opinion, that the weapon alleged to have been used in causing fatal injury could not have been the mouser rifle carried by A-1 because it is the definite report of the ballistic expert that discharged :: 9 ::
CRA-93-2007 empties of cartridge found near the dead body was not that fired from the mouser gun. On the contrary, the evidence of the eye-witnesses is that it is A-1 who fired from a mouser rifle from a close range at the deceased. Further it is the prosecution case that it is A-2 who fired at PW-1 from a .12 bore gun which missed him but got embedded in the wall of the house. But according to the ballistic expert, those bullets which were embedded in the wall could have been fired from the mouser gun which opinion leads us to draw an inference that it was not from a .12 bore gun which according to the eye witnesses was used for firing at PW-1. The High Court did take notice of this serious contradiction between the oral evidence and report of the ballistic expert and as a matter of fact used this contradiction to give the benefit of doubt to the other accused persons including A-2 who allegedly fired from .12 bore gun at PW-1. But by somewhat a convoluted reasoning it accepted the very same contradictory evidence to uphold the conviction of the appellant. We find no good reason why this part of the prosecution evidence should be believed in regard to the appellant, while the same is disbelieved in regard to the other accused persons. Before us, of course, the learned counsel for the State has submitted that if the oral evidence is found acceptable by the court then even if there is some contradiction in the medical or ballistic reports, the acceptable oral evidence should always be preferred. Normally, if the eye-witness's evidence is absolutely acceptable, the argument of the learned counsel for the State could have been accepted but that is not the factual position in this case. The eye-witnesses admittedly are interested witnesses being relatives of the deceased and other persons who witnessed the incident who were independent witnesses have not been examined by the prosecution and there is inter se contradictions in the evidence of PW-1 and PW-10 there is also contradiction as to who fired at PW-1. In these circumstances, we think it is not safe to rely upon the :: 10 ::
CRA-93-2007 said oral evidence to base a conviction on the appellant. We are in agreement with the High Court in its approach towards the case of the acquitted accused persons, but we find it difficult to accept its reasoning to base a conviction on the appellant. We think in the facts and circumstances of this case the very same reasoning which persuaded the High Court to acquit the other three accused persons should have also persuaded the High Court to acquit the appellant also, when we find no difference in the oral evidence led by the prosecution, be it against the appellant or the other accused persons. Then we notice the prosecution has not bothered to clarify the report of the ballistic expert even though the same was contradictory to the oral evidence which creates a very serious doubt in our mind as to the presence of eye-witnesses at the place of incident. Keeping in mind the partisan nature of eye-witnesses and contradictions in their evidence, we think this appellant is also entitled to benefit of doubt."
17. Though a reliance could be placed on a recent decision by the Supreme Court in Himanshu Mohan Rai vs State of Uttar Pradesh (2017) 4 SCC 161 by the prosecution that where the ocular evidence is creditworthy, report of ballistic expert which is in negative as, in the present case, can be ignored. However, in Himanshu Mohan (supra), there is a direct evidence of PW1 who stated that he saw the incident clearly as the hotel was decorated with lighting for the New Year's Eve and therefore, identified the accused in that light.
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CRA-93-2007
18. In the case at hand, there is no such direct ocular evidence as would support the prosecution story that it is the appellant who caused the death of the deceased by firearm.
19. In view whereof, since prosecution has utterly failed to bring home the charge against appellant beyond reasonable doubt, the appeal deserves to be allowed.
20. Consequently, the appeal is allowed. The appellant Ramautar Singh is acquitted of the charge of murder. He be set at liberty forthwith if not required in connection with any other case.
(Hemant Gupta) (Sanjay Yadav)
Chief Justice Judge
vinod