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1987 DIGILAW 278 (MP)

GORELAL v. STATE OF MADHYA PRADESH

1987-09-02

A.G.QURESHI, V.D.GYANI

body1987
V. D. GYANI, J. ( 1 ) ALL these appeals arise out of the same judgment. They were heard together and are being decided by a common judgment. ( 2 ) PROSECUTION story was, that on 31-5-84, the complainant, Gendibai, was proceeding towards weekly bazar at village, Amlaya, alongwith her son, Khushilal, from village, Begamkhedi, District, Shajapur. It is alleged that the accused/respondents, who were armed with farsa, knife and lathis, waylaid the complainant and her son, Khushilal, just across the Salkhar Kheli Nalla and assaulted Khushilal, with these weapons. This incident tool a place around 10-12 a. m. Gendibai, intervened to save her son, and in doing so, she also suffered injuries on her back waist and legs. As a result of these injuries, she became unconscious. On regaining consciousness, she cried for help, but according to her, none-responded to her cries. After some time, Devi singh, Hemraj and others, from village, Padliya, appeared to whom she narrated the incident. Station Officer, Police Station, Hadodiya, happened to pass from that place. She reported the matter to him around 11-30 p. m. First-information-report, (Ex. P/i) was recorded. It was on this basis that a case under sections 302/149, I. P. C. was registered. Investigation proceeded in the matter. During the course of investigation, the dead body was sent for post-mortem-examination. As per report, (Ex. P/8) Khushilal died of shock due to head injury. The following injuries were found on his body: (1) Incised wound in Right frontal region of head extending from root of nose up to parietal region oblique. 4 x 1/2 skull cavity-deep, bone fractured. (2) Contusion on lower part of left lid 1/2 x 1/2 (3) Contusion on front parietal region of head 21/2 above the left eye brow 21/2 x 1/2. (4) Incised wound on middle and post part of parietal region of head oblique 3 x 1/2 bone deep, bone cut. (5) Incised wound left side of chin 1 below the lower lip 1" x 1/2 bone deep. (6) Incised wound on Rt. side of chin 1/2 x 1/2 bone deep. (7) Lacerated wound in Rt. middle part interiorly 11/2 bone deep. (8) Lacerated wound in front and lower 1/3rd of left leg 1/2 x 1/2' bone deep. (9) 5 length oblique fracture of parietal region of head in middle part, bone pieces found. Brain matter coming out, fracture of lower jaw. side of chin 1/2 x 1/2 bone deep. (7) Lacerated wound in Rt. middle part interiorly 11/2 bone deep. (8) Lacerated wound in front and lower 1/3rd of left leg 1/2 x 1/2' bone deep. (9) 5 length oblique fracture of parietal region of head in middle part, bone pieces found. Brain matter coming out, fracture of lower jaw. Penis and scrotum enormously broken. ( 3 ) GENDIBAI, was also examined, her injury report is Ex. P17. The following injuries have been noted therein. (1) Tenderness in left hip region, suspected fracture. Advised X- ray. (2) Tender swelling on Right hand dorsal aspect and fingers. Suspected fractures in proximal phalanx of ring and middle finger. Advised X ray. (3) Tender swelling on base of left middle and index finger, including dorsal aspect of hand. (4) Lacerated wound in dorsal aspect of left hand, on the dorsal part of metacorpal region 1/2 x 1/2 skin deep. (5) Abrasion on dorsal aspect of left wrist lateral part 1/2 x 1/2 caused by rough shafting object. Simple. ( 4 ) BLOOD-STAINED clothes, socks, shoes belonging to the deceased, were sent for chemical examination. Report of Chemical Examiner, is Ex. P/22. Accused/respondent, Makhan was arrested on 25. 6-1984, vide Ex. P/10, while the rest were arrested on 22-6-1984, vide Ex. P/9. Recoveries of weapons on the basis of the information given by the accused, were also made. On completion of investigation, they were charge-sheeted and prosecuted for offences under sections 302/149, 148, 323 I. P. C. Their defence was that they were falsely implicated in the case. ( 5 ) TRIAL Court acquitted accused Karan Singh Sb Bondaji and Makhanlal Sb Munna Kir, for want of reliable evidence, but convicted accused/gorelal, Man Singh, and Mangilal, under sections 148, 323 and 302/149, I. P. C. and sentenced them to undergo life imprisonment, fur offence punishable under section 302/ I. P. C. and for the rest, six months rigorous imprisonment on each count, the sentences to run concurrently. ( 6 ) AGGRIEVED by this judgment, State has preferred an appeal against acquittal of respondent, Karansingh s/c Bondaji and Makhanlal S/o Munna. The accused, who have been convicted, have also preferred appeals against their convictional. It is for this reason that all these appeals including State-appeal against acquittal heard together and are being decided by a common judgment. ( 6 ) AGGRIEVED by this judgment, State has preferred an appeal against acquittal of respondent, Karansingh s/c Bondaji and Makhanlal S/o Munna. The accused, who have been convicted, have also preferred appeals against their convictional. It is for this reason that all these appeals including State-appeal against acquittal heard together and are being decided by a common judgment. ( 7 ) SHRI Shukla, learned counsel appearing for the appellant, contended that the prosecution story suffers from inherent infirmities and improbabilities. Prosecution evidence is extremely unreliable. Material witnesses have been kept back by the prosecution. Trial Court was palpably wrong in accepting prosecution case as proved, even as against the convicted accused. Shri Pawanekar, learned Panel lawyer, appearing for the State in Criminal Appeal Nos. 212/85 and 536/85, supported appellants conviction and contended that the acquittal of the aforesaid two accused, was not proper. ( 8 ) SHRI Shukla, learned counsel, attacked this first-information-report, (Ex. P/i) not, only as belated one but also as concocted. Refer ring to the evidence of Investigating Officer, (P. W. 5) he pointed out that this witness, as stated by him, that he left police station on 30th May, 1984, on village-patrol-duty, and also admitted that he had made an entry to that effect in the general diary. On being confronted with the entries in general diary at serial No. 665 and the witness, it was found that instead of patrol-duty, as stated by him, he had left police station for attending the Court at Shujalpur. It was submitted that this witness appears to have no regard for truth. The submission is not without substance. In order to make up the time gap between the occurrence and lodging of F. I. R. this witness made a pulpable false statement. There is no entry in the general diary dated 30-5-1984, of the police station to show that Station Officer, had gone on patrol-duty of village that night. On the other hand, the entry is to the effect that he had been to Shujalpur for attending the Court. The witness persisted in falsehood saying that while returning from Shujalpur he visited the villages but as admitted by him that villages visited by him, Padlya Arniya were not within the jurisdiction of this police station, Hadodiya of which he was the Station Officer, his statement cannot be believed. The witness persisted in falsehood saying that while returning from Shujalpur he visited the villages but as admitted by him that villages visited by him, Padlya Arniya were not within the jurisdiction of this police station, Hadodiya of which he was the Station Officer, his statement cannot be believed. Police Officer who, makes a false statements on a trivial aspect of the case, cannot be intrinsically relied upon. The Supreme Court in Rahim Bag v. State of U. P. has observed in the following terms: The fact that the Sub-Inspector has deviated from truth even on a minor point would show that implicit reliance cannot be placed upon his testimony. ( 9 ) IT was urged that Sub-Inspector had in fact, reached the spot on receiving the information about the incident, given by the choukidar. The choukidar has not been examined. The Investigating Officer could not assign any reason or could he explain the delay in registering the offence, at 7-00 p. m. on 1-6-1984. The incident, according to the prosecution, had taken place in the morning, around 10-12 a. m. on 31st. For almost, 36 hours, no case was registered. although, the Station Officer, claims to have reached the place of incident. ( 10 ) IT is this prosecution case that witness Devisingh Hemraj had reached this spot. Hemraj has not been examined, by the prosecution and Devisingh (P. W. 3) in his evidence stated that he alongwith Hemraj, Heeralal and Lalsingh and village Choukidar Moti he came to the spot and found that Khushilal was lying dead and his mother Gendibai (P. W. 1) also lying in injured condition, on being asked by Devisingh, (P. W. 3) disclosed the names of the assailants. Gendibai (P. W. 1) in her evidence, specifically stated that she did not know any such man by names Devi Singh or Hemraj. On the other band, her case was that one Malguzar of the village had come to the place of incident and it was he, who had sent for the choukidar Surprisingly enough this Malguzar, has not been examined nor the choukidar. Both these persons were very material witnesses in the case. The prosecution should not have omitted to examine them as witnesses. Both these persons were very material witnesses in the case. The prosecution should not have omitted to examine them as witnesses. ( 11 ) TRIAL Court appears to have been impressed by the fact that complainant Gendibai, (P. W. 1) had disclosed the names of the assailants to witness, Devisingh soon after his arrival on the spot. It was on this basis that the trial Court tried to gather support and corroboration for the evidence of Gendibai. It is settled principle of law that whenever corroboration is required such corroboration must come from independent and reliable sources. A discrepant witness cannot lend corroboration to the testimony of another discrepant witness. Trial Court appears to have overlooked this cardinal rule of appreciation of evidence while accepting and acting upon corroboratives evidence of Devisingh. Gendibai, did not state before the Court that she had given out the names of the assailants to Devisingh; According to her, the names of assailants were disclosed to the Malguzar. It was suggested during the course of arguments that possibly Devisingh would have been misunderstood by Gendibai, (P. W. 1) as Malguzar. The suggestion cannot be accepted for the simple reason that Gendibai (P. W. 1) in her statement has distinctly and separately referred to the Malguzar. The witness Gendibai has stoutly denied any such disclosure of names of assailants to Devising h. ( 12 ) IT was urged by the learned counsel, appearing for the appellants, that prosecution story, as such is unnatural, the fact that bullock-cart, till the police and other witnesses arrived at the spot, was standing at the same place, is itself unnatural and unbelievable particularly in face of the statement contained in the F. I. R. (Ex. P/2) that one Umrao had taken away the bullock cart. Surprisingly. Umrao has not been examined by the police even during investigation, much less produced as a witness before the Court. The Investigating Officer, (P. W. 5) has not said a word about this Umrao, in his evidence. Trial Court has not adverted to these aspects of the matter. ( 13 ) IT was also submitted that considering the injuries as found on the person of Gendibai, P. W. 1) as contained in Exhibit, P7, the story that she had become unconscious, itself becomes doubtful. Trial Court has not adverted to these aspects of the matter. ( 13 ) IT was also submitted that considering the injuries as found on the person of Gendibai, P. W. 1) as contained in Exhibit, P7, the story that she had become unconscious, itself becomes doubtful. The injuries are not such as to make her un-conscious but it cannot be said that it was unnatural on her part to have become un-conscious. No injury as such is required to make her un-conscious. The fact that her son was murdered was itself sufficient to make any mother-un-conscious. Gendibai (P. W. 1) has been very emphatic in her evidence that she did not disclose fathers names of the accused. There are many discrepancies in the F. I. R. (Ex. P1! ). She denied having given out the Dames of the accused Kanhaiya Kannu. She also denied the name of Kannu Kanhaiya. She had also denied that said Kannu was resident of village Baliya, as contained in Ex. P1 I. According to her, she had given out the name of Malkhan of village, Lalpura. She made a categorical statement that she had not referred to the flame of Devisingh and Hemraj, as persons, who came on the spot, as contained in portion marked D to D in Exhibit, P/i. It is surprising that not only the names of the accused but their fathers names also appear in the F. I. R. (Ex. P/i ). It is thus, clear that F. I. R. contained numerous facts, which were not given out by the complainant. The sub-inspector, who claims to have recorded it, has failed to offer any convincing explanation about inclusion of such names in the F. I. R. Ex. P/i. He also admitted that he did not ascertain, if there were other persons of similar names living in the same village, Begumkhedi. The DEHATI NALISH F. I. R. (Ex. P/i) is clearly a subsequent creation to patch up the time lapsed in between the incident and the registration of offence. It contains such facts which the complainant had not given at the time of lodging F. I. R. (Ex. P/i) the DEHATI NALISH is not in F. I. R. within the meaning of section 154, Cr. P. C. It is not admissible in evidence. The question which arises for consideration, in these circumstances, is whether Ex. It contains such facts which the complainant had not given at the time of lodging F. I. R. (Ex. P/i) the DEHATI NALISH is not in F. I. R. within the meaning of section 154, Cr. P. C. It is not admissible in evidence. The question which arises for consideration, in these circumstances, is whether Ex. P/i, DEHATI NALISH was recorded, by the Sub. Inspector, (P. W. 5) at the time, it purports to have been recorded? It is clear from the evidence on record that DEHATI NALISH (Ex. P/i) was crude attempt on the part of the Investigating Officer. (P. W. 5) to patch up the time gap which lapsed between the incident and registration of offence at police station. It does not stand to reason that right from 10-00 a. m. In the morning till 8-30 p. m. In the night, a dead body would be lying on the high-way and injured mother would be sitting so quiet, as to escape notice of the passers by. This creates doubt, particularly, in view of the face that this time gap is sought to be explained in a manner which smacks of fabrication on the part of the Investigation Officer. It is pot the duty of Investigating Officer to bolster up a case but his duty is to place unvarnished truth before the Court. ( 14 ) DEVISINGH, (P. W. 8) has resiled from his case diary statement, (D/2) which he denied that it was around 8-30 to -9-00 a. m. that village choukidar had come to him and informed about the incident. He also denied having stated before the police, that he collected few villagers to go to the spot. He admitted that Gendibai had not disclosed fathers names of the accused/assailants. He could not say as to how many persons with similar name like Mangilal, Gorelal, Mansingh and Malkhan were living in the village. In these circumstances, it was urged by the learned counsel for the appellants that prosecution has failed to bring home the charge to the accused. Trial Court, while anoraciating the evidence of Gendibai, (P. W. 1) and Devisingh (P. W. 3) overlooked this vital aspects of the matter. ( 15 ) AS observed by the Supreme Court when the F. I. R. In itself ante timed, the entire prosecution case becomes doubtful. Trial Court, while anoraciating the evidence of Gendibai, (P. W. 1) and Devisingh (P. W. 3) overlooked this vital aspects of the matter. ( 15 ) AS observed by the Supreme Court when the F. I. R. In itself ante timed, the entire prosecution case becomes doubtful. (See Mridula v. State of Kerala and Khalil Purshottam Ladha v. State of Gujarat. In the instant case, F. I. R. is extremely suspicious. Its credibility is considerably damaged as the investigations in this case was not only unfair but highly tainted. This glaring discrepancy has been not unnoticed by the trial Court. ( 16 ) IN view of the foregoing discussion, the appeals preferred by the accused/appellants deserve to be allowed, and are accordingly allowed while State-appeal (Cri. Appeal No. 42/86 Stale of M. P. v. Kannu and another) deserves to be dismissed and accordingly dismissed. The acquittal of the respondents in this appeal is based on proper appreciation of evidence. It does not call for any interference. Their acquittal, is therefore, maintained. ( 17 ) IN the result, appellants in Cri. Appeal No. 212 of 85 Gorelal and others v. State of M. P. and Cri. Appeal No. 536/85 Mangilal v. State of M. P. are acquitted of the charges framed against them, They are discharged on their bail bonds and be set as liberty forthwith. Order Accordingly. .