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2004 DIGILAW 382 (MP)

Kallu alias Rakesh v. State of M. P.

2004-04-20

A.K.GOHIL, S.S.JHA

body2004
JUDGMENT Jha, J. 1. This appeal is by the appellant against his conviction for an offence. under section 302, IPC and sentenced to life imprisonment and fine of Rs.1,0001- and in default of payment of fine, he shall undergo sentence of three months' RI. 2. Shi vcharan was serving as Choukidar in the Block Development Office. On 14.6.1994 at about 15:00 hours, he sent his son Manoj to bring a cup of tea for him from bus stand. When Manoj did not return within a reasonable time, Shivcharan went in search of his son at bus stand. Manoj was not found at the bus stand, then he went towards his house and on way to his house he saw that Dilip was holding Manoj and appellant was inflicting number of knife blows to him. Shivcharan (PW 1) shouted for help and hearing shout PW 2 Dr. Azad Singh Bhadoria reached the spot. PW 1 went to the police station, where FIR (Ex.P-2) was lodged Marg intimation (Ex. P-3) was prepared by police. Site plan (Ex.P-4) and seizure memo of blood-stained earth as well as plain earth was prepared Manoj died on the spot. His dead body was sent for post mortem. Post mortem was conducted by Dr. V.K. Diwan (PW 7). 3. After recording statement and completing the investigation, challan was filed before the Court of Judicial Magistrate against the appellant and two others. Judicial Magistrate committed the case to the Court of Sessions. Case was tried by Shri A.K. Mishra, First Additional Sessions Judge, Gwalior. Sessions Judge, after recording evidence, had acquitted Dilip and Kammu for an offence under section 302/34 and 302/120B, IPC and convicted appellant. This appeal is filed by the appellant challenging his conviction. 4. Counsel for the appellant submitted that conviction of appellant is based upon sole testimony of PW 1 Shivcharan. He submitted that on account of previous enmity, Shivcharan has falsely implicated the appellant. He submitted that PW 1 has admitted that there was no enmity between the appellant and deceased Manoj. This witness has further admitted that appellant has lodged complaint of theft against PW 1 Shivcharan. He invited attention to para 6 of the deposition of PW 1 Shivcharan, wherein he has admitted that a case for theft is registered against him on the complaint of appellant and other accused. This witness has further admitted that appellant has lodged complaint of theft against PW 1 Shivcharan. He invited attention to para 6 of the deposition of PW 1 Shivcharan, wherein he has admitted that a case for theft is registered against him on the complaint of appellant and other accused. He further admitted that there was no enmity between the deceased and the accused. Counsel for the appellant submitted that in para 7 of his deposition, this witness has deposed that he had sent his son to bring tea from bus stand. Deceased was at his residence in which his elder son resides. His house is near the post office. He had sent his son to bring tea from the hotel of Godi alias Purshottam. Since Manoj had not returned within 15-20 minutes, he went to search Manoj and when he did not find him at hotel near the bus stand, he proceeded towards his house and on reaching near the house of Ratiram he had seen that Manoj was being beaten by all the three accused. Manoj was stabbed by Kallu and Dilip while Pramod had grabbed the deceased from the waist. Kallu and Dilip had given repeated knife blows and deceased was lying on the ground. He has deposed that Kallu was sitting on the chest of the deceased and he had stabbed him on his chest, neck and face. Then he denied that no stab wound was given on the neck. Counsel for the appellant submitted that this witness is not reliable witness and his evidence is not corroborated by medical evidence. He invited attention to the depositit-11 of PW 7 Dr. V.K. Diwan, wherein doctor has not found any stab wound or incised injury on the chest. Counsel for the appellant therefore submitted that PW 1 has not witnessed the incident and this witness is wholly unreliable. Conviction of appellant on the sole testimony of Shivcharan (PW 1) deserves to be set aside and appellant be acquitted. . 5. Counsel for the State supported the judgment and submitted that prosecution has proved its case beyond reasonable doubt and evidence of PW 1 Shivcharan his trustworthy and conviction of appellant is just and proper and he prayed that appeal be dismissed. 6. It may be mentioned here that another eye witness PW 2 Azadsingh Bhacioria has not supported the case of prosecution. 6. It may be mentioned here that another eye witness PW 2 Azadsingh Bhacioria has not supported the case of prosecution. This witness has deposed that he was informed by someone that a man is lying dead on the road. He rushed to the spot and found that about 15-20 persons were standing on the spot. Shivcharan was sitting and weeping. He has seen 28 injuries on the body of Manoj. However, he has not levied any allegation against this appellant. Specific allegation of assaulting the deceased is levied against Dilip and Kammu alias Kamalkishore. Both these accused have been acquitted and reasons for their acquittal have been assigned by the trial Court. In para 27 of the judgment trial Court has recorded a finding that Dilip and Kammu alias Kamalkishore have been acquitted because Shivcharan in para 10 of his deposition has categorically deposed that Dilip has not stabbed deceased Manoj and the fact of grabbing the deceased by Kammu is not mentioned in the FIR, therefore evidence against these two accused have been disbelieved and these two accused have been acquitted, but on the same set of evidence appellant has been convicted. 7. We have to examine whether the evidence against the appellant is sufficient to hold him guilty. PW 1 Shivcharan was holding the post of Choukidar in the Block Development Office. He has deposed in para 1 that he had seen that Dilip and Kallu had thrown Manoj on the ground and they were stabbing him. Again in para 10 he has deposed that Pramod had not caught deceased from the waist and he denied his previous statement. Then he further denied the act of Dilip in stabbing the deceased and then deposed that appellant alone had stabbed the deceased. PW 7 Dr. V.K. Diwan has admitted in para 3 of his deposition that injuries on the body of deceased were caused by two or more weapons. Thus, if this witness has named Dilip as well as Kamalkishore in the examination-in-Chief, and thereafter has exonerated Dilip in para 10 of deposition, it will therefore be proper to scrutinise evidence of this witness minutely as this witness is not firm about his deposition. We have to keep one more fact in the mind that the injury was caused by more than• one weapon. 8. In FIR Ex. We have to keep one more fact in the mind that the injury was caused by more than• one weapon. 8. In FIR Ex. P-2 it is specifically mentioned that Dilip had caught Manoj and exhorted Kallu to finish him. On his exhortation, appellant Kallu took out the knife from his pocket and stabbed him in the stomach. Manoj fell on the ground. Thereafter appellant continued stabbing him by knife and Manoj ran here and there to save himself and when he shouted for help then Dr. Azadsingh Bhadoria, Ghanshyam and Ramsevak reached the spot and accused ran away. However, this witness has improved his statement in the Court and has deposed that deceased was caught by Pramod and appellant Kallu and Dilip have stabbed him. It is further deposed by him that Dilip was sitting on the chest of the deceased and was stabbing him and in para 10 of deposition he has denied the act of Dilip. This witness has denied the fact in para 15 of the deposition that Dilip grabbed Manoj from behind and appellant has stabbed him are not mentioned in Marg intimation (Ex. P-3) and FIR (Ex. P-2). Spot map is Ex. P-4. Dead body is found at Spot A in the spot map (Ex. P-4). Main road is shown at No.1 and dead body is found at spot 1A. Blood was found at 24 ft. and 27 ft. away from the dead body on the southern side. Therefore it appears that the incident took place somewhere 27 ft. away from the dead body and then deceased must have run to save himself and fell on spot A. Bloodstains were found at 24 and 27 ft. where it appears that deceased was stabbed at those spots. Only question in this case is whether this appellant has committed the crime. 9. Eye witness Shivcharan has stated that deceased was stabbed at one place but prosecution has failed to explain blood stains about 24 ft. and 27 ft. away from the spot. Evidence of PW 1 is silent on this question. I.O. Shambu Singh (PW 8) has admitted in para 5 that he has found blood stain marks between the house of deceased and the place where dead body was lying. He further admitted that he has recorded the statement of Shivcharan without adding or substracting anything. 10. away from the spot. Evidence of PW 1 is silent on this question. I.O. Shambu Singh (PW 8) has admitted in para 5 that he has found blood stain marks between the house of deceased and the place where dead body was lying. He further admitted that he has recorded the statement of Shivcharan without adding or substracting anything. 10. Contention of the counsel for the appellant that the story of bringing tea from bus stand is falsified from this fact that blood stains were found on way from the side of house of the deceased and the place where dead body was lying. There is force in contention of the counsel for the appellant that the deceased was coming from his house and on way he was assaulted by unknown persons which resulted into his death. PW 1 Shivcharan has falsely implicated appellant on account of criminal complaint against him. Prosecution has not proved how the blood stains were found at two places shown in the spot map. In the absence of explanation of these blood stains, deposition of PW 1 becomes suspicious and on his failure to prove the blood stains it appears that incident was not seen by this witness and the demeanour of the witness that at one place he has roped in all the three accused and later on he has exonerated Dilip. Thus this witness has followed the theory of pick and choose. In the examination-in-Chief he has chosen three accused, but in cross-examination he has levied allegations against one accused, coupled with the fact that PW 7 has deposed that deceased has suffered injuries from different weapons. Thus, it appears that this witness Shivcharan has not seen the incident and as Shivcharan has not seen the incident, it will not be safe to maintain the conviction of appellant. Prosecution has failed to prove its case against appellant. Appellant is entitled for benefit of doubt. Conviction deserved to be set aside. 11. Conviction of appellant is set aside and he is acquitted of charge. Appellant is in jail. He shall be released forthwith if not required in any other case. Judgment and sentence passed by the trial Court is set aside and appellant is acquitted of charge. 12. Appeal succeeds and is allowed.