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Madhya Pradesh High Court · body

2002 DIGILAW 450 (MP)

Jagdish v. State of M. P.

2002-04-24

AJIT SINGH

body2002
JUDGMENT 1. The appellants, Jagdish and Vimal Singh, have been convicted under section 307 of the Indian Penal Code and sentenced to undergo five years Rigorous Imprisonment each by impugned judgment dated 3.2.1990 passed in Sessions Trial No. 5/89 by IV Additional Sessions Judge to the Court of Sessions Judge, Bhopal. They have been found guilty for attempting to commit the murder of Mahesh Sahu on 15.7.1988 at about 10.00 a.m. 2. Injured Mahesh (PW 1) sells coconut on hand-cart for his livelihood. On 15.7.1988 at about 10.00 a.m. near 'Dhobi Gali' of Bhopal town, two persons suddenly approached him from behind. One of them threw chilli powder in his eyes while other stabbed him with a knife on the left side of his stomach. Mahesh (PW 1) raised an alarm but by that time the person who had thrown chilli powder also stabbed him with a knife on his left thigh. According to Mahesh (PW 1) since more people had assembled hearing his cries for help, both the accused fled away. Mahesh (PW 1) attributed suspicion against his brother-in-law, Prem Kishore. Sister of Mahesh (PW 1) was married to Munnalal who is brother of Prem Kishore. On account of some matrimonial dispute, a case was registered against Munnalal which was ultimately compromised. Prem Kishore, however, nursed a grudge against Mahesh (PW 1) for making his mother stand before the Court and, therefore, had threatened to take revenge. Thus, according to Mahesh (PW 1) it was Prem Kishore who, through these two accused persons, attempted to murder him. 3. Mahesh (PW 1) was taken by one Kishore Kumar to Hamidia Hospital, Bhopal, where he was admitted for treatment. At 11.30 hrs., a telephonic message was sent to Police Station, Tallaiya, Bhopal, on behalf of Dr. J.N. Soni, Chief Medical Officer, of the hospital through Telephone Attendant with respect to admission of Mahesh (PW 1), in the hospital due to assault caused by knife by 'unknown persons', for medical treatment on being brought by one Kishore Kumar at 10.20 hrs. The said telephonic message was recorded in the Rojnamcha Sanha No. 1512, Ex. P-12. Thereafter, Station Officer, Mr. B.P. Yadav (PW 4) went to Hamidia Hospital after seven hours of the information received at Police Station which is only at a distance of one kilometre. He recorded the information given by Mahesh (PW 1) as dehati nalishi which is Ex. P-1. P-12. Thereafter, Station Officer, Mr. B.P. Yadav (PW 4) went to Hamidia Hospital after seven hours of the information received at Police Station which is only at a distance of one kilometre. He recorded the information given by Mahesh (PW 1) as dehati nalishi which is Ex. P-1. 4. In the hospital, Dr. M.K. Chourey (PW 3) examined the injured and found the following injuries on the person of Mahesh (PW 1) : (1) Stab wound in epigastrium travelling posterior and downward. 3 x 1 cm. and penetrating perifaud cavity. (2) Stab wound left illiac region below and away from the illiac cust (spine), obliquely downward and anteriorly 4 x I x 5 cm. upto bone. According to him, the injury No.1 was dangerous to life if not treated timely and both the injuries were caused by hard, sharp and penetrating weapons. 5. The Investigating Officer, Mr. B.P. Yadav (PW 4) arrested the appellants on 20.7.1988 and recovered a knife from each of them vide Ex. P-5 & P-6 on the basis of their discovery statements, Ex. P-3 & P-4 respectively. He also arrested Prem Kishore on 20.7.1988 on the allegation of abetting and common intention. 6. The appellants and Prem Kishore in their defence abjured the guilt and pleaded that they have been falsely implicated. 7. The trial Court believed the prosecution story as against the appellants and convicted them as• aforesaid but acquitted Prem Kishore on the ground of 'no evidence' against him. 8. Shri N.P. Dubey, learned counsel for the appellants, has strenuously argued that there is absolutely no evidence on record to warrant their conviction. He also asserted that the names of appellants have not been mentioned in the First Information Report nor they had been subjected to test identification parade without any reason and this alone belies the prosecution story against them. On the other hand, Shri S.K. Rai, Panel Lawyer for the State, has justified the conviction of appellants on the basis of evidence on record. 9. Mahesh Kumar (PW 1) in his First Information Report, which was recorded after six hours from the time of incident, did not disclose the names of his assailants nor did he give any description regarding their identity. He merely stated that he would be able to identify them. From the Rojnamcha Sanha, Ex. P-12, also, it is apparent that some unknown persons had assaulted Mahesh (PW 1). He merely stated that he would be able to identify them. From the Rojnamcha Sanha, Ex. P-12, also, it is apparent that some unknown persons had assaulted Mahesh (PW 1). It is only when Mahesh (PW 1) came to give evidence in the Court where three accused were sitting that he identified them as his assailants. In his evidence, he has stated that since at the time of incident he did not know the name of his assailants, he could not mention their names in the First Information Report nor did he state anything regarding their description. He has further stated that after about one and a half months from the date of incident, on an enquiry people informed him that he was assaulted by Jagdish and Vimal. In such a situation, ordinarily after the appellants were arrested the test identification parade should have been held. It is admitted that no such test identification parade was held. Evidence of Mahesh (PW 1) was recorded in the Court on 17.7.1989 whereas the incident occurred on 15.7.1988. There was, thus, a gap of almost one year, during which period, it is not possible to believe the contention that Mahesh (PW 1) had no occasion to see the appellants. Such identification in Court, in the circumstances of the case, would hardly be of any value to be used against the appellants. Thus, the evidence of Mahesh (PW 1) is not sufficient at all to warrant the conviction of appellants under section 307 of the Indian Penal Code. 10. The prosecution has examined two witnesses, namely Har Prasad Sahu (PW 2) and Mohd. Asad (PW 5) to prove the fact that they saw the appellants running away from the place of incident with knives in their hands. Both of them have also deposed that the appellants were arrested by the police before them, and thereafter on the basis of their discovery statements, police recovered knife from each of the appellants vide Ex. P-5 & P-6 respectively. Mohd. Asad (PW 5) has deposed in the Court that he continued to sell oil after seeing the appellants running away and he did not go to Police Station for lodging report nor did he go to the hospital to see the injured. According to him, he was called after two days in the Police Station where he saw the accused persons and thereafter he came back. According to him, he was called after two days in the Police Station where he saw the accused persons and thereafter he came back. According to him, when he had gone to the Police Station, he did not know the names of the accused persons and he was unable to say as to how the police recorded their names in his statement. Ex. D-2. He has categorically admitted that he had never disclosed the names of any of the appellants since he did not know the same. Under these circumstances, it is difficult to rely upon the evidence of Mohd. Asad (PW 5) that he, in fact, saw the appellants running away from the place of incident with knives in their hands. Ii. Similarly, the evidence of Har Prasad (PW 2) is not above suspicion. He has admitted in his evidence that after seeing the appellants running away with knives in their hands from the place of incident, he went to his relatives to whom he did not disclose anything. He further states that even to his family members he did not disclose anything about the incident. It seems that Har Prasad (PW 2) is an interested witness. Mahesh (PW 1), in his evidence, has admitted that Har Prasad had participated in the family settlement at the time of matrimonial dispute between his sister and the family members of his brother-in-law, accused Prem Kishore (acquitted). Har Prasad, in his evidence as PW 2, on the other hand, has denied that there was any dispute between Mahesh (PW 1) and accused Prem Kishore and that he participated in the settlement by calling a panchayat. Apart from this, Har Prasad Sahu (PW 2) has been with the police from the very beginning i.e. from 16.7.1988 when the Investigating Officer prepared the spot map. Ex. P-8, to which he is a witness. Thus, the conduct of Har Prasad Sahu (PW 2) makes his evidence unworthy of reliance. Had he actually seen the appellants running away with knives from the place of incident, he would have, in the normal course, gone to the Police Station to lodge a report, or, at least, he would have visited the hospital to see the condition of Mahesh (PW 1), particularly when he was known to him and had earlier participated on his behalf in the family settlements with accused Prem Kishore. It seems that neither Har Prasad (PW 2) nor Mohd. Asad (PW 5) knew the appellants from before. It is unfortunate that the Investigating Officer, Mr. B.P. Yadav (PW 4) did not think it proper to hold test identification parade for the purpose of identifying the appellants. Not only this, he did not even take any steps for identification of appellants by the injured Mahesh (PW 1). 12. Next comes the evidence of recoveries of weapons of offences from the possession of appellants, Ex. P-5 & P-6, respectively. Admittedly, on none of the weapons recovered at the instance of appellants, blood has been reported. Furthermore, after having disbelieved the evidence tendered by Har Prasad (PW 2) and Mohd. Asad (PW 5) much weight cannot be attached to the recovery as they are the witnesses to the same. 13. In view of discussion above, and in light of evidence on record, in my opinion, prosecution has not been able to establish the offence against the appellants whose conviction, therefore, cannot be sustained. Consequently, this appeal is allowed and the judgment of conviction and sentence of appellants passed by the Trial Court is set aside. The appellants are on bail. They need not surrender. Their bail bonds are cancelled.