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Madhya Pradesh High Court · body

2005 DIGILAW 713 (MP)

Lal Singh v. State of M. P.

2005-07-13

A.K.GOHIL

body2005
JUDGMENT 1. In Sessions Trial No.272/2000 vide judgment dated 25th August, 2003 appellant No. 1 has been convicted under section 307, IPC and sentenced to 10 years R.I. and fine of Rs. 20,000/- and appellant No.2 has also been convicted under section 307/34, IPC and sentenced to 10 years R.I. with fine of Rs. 5,000/-. Being aggrieved by the said judgment of conviction and sentence the appellants have filed this appeal under section 374 of the Code of Criminal Procedure. 2. Prosecution case as narrated in the FIR is that in the night of 18.3.2000 complainant Chhotelal was sleeping in the Chapara out of his house and his brother's son was also sleeping nearby. While he was sleeping, he became aware that somebody has come; he saw that Lalsingh was having Mouser gun and Guddu was with him. Lalsingh moved the Mouser gun towards him and said that "You have not given" evidence in our case, therefore, the accused persons could not be convicted, today we will not leave you alive." Complainant, after seeing him, wanted to run away but Lalsingh fired on his back and he fell down. After gunfire, accused persons ran away. The family members of the complainant brought him to the Police Station for lodging the FIR. Injured Chhotelal lodged FIR at Police Station Gohad. On his report, crime was registered. Complainant was referred for medical examination. Accused Lalsingh himself went to the Police Station and said to the 10 that he is being falsely implicated. He has not committed any crime and on the direction of the 10 he deposited the gun at the Police Station. After investigation chargesheet was filed, the matter was committed to the Sessions Judge and after examining the prosecution witness and also evidence of one defence witness the trial Court found the appellants guilty and convicted and sentenced them as aforesaid. Against which the appellants have filed this appeal. 3. I have heard Shri J.P. Gupta, learned Senior Advocate for the appellant and Shri V.G. Khot, learned Public Prosecutor, for the respondent-State. 4. Shri Gupta vehemently argued and submitted that the prosecution story is totally false and baseless. The appellants have been implicated falsely. The incident took place in the dark night. There is no consistency in the evidence of eye-witnesses. 4. Shri Gupta vehemently argued and submitted that the prosecution story is totally false and baseless. The appellants have been implicated falsely. The incident took place in the dark night. There is no consistency in the evidence of eye-witnesses. Out of the statements of four witnesses, the statements of three witnesses, Jagatsingh (PW 4), Gyansingh (PW 5) and Hawaldar (PW 10) were recorded after gap of three months and statement of Geetabai (PW 12), who is the daughter of the injured, was recorded after a month. He has further submitted that all the remaining three witnesses have narrated three different stories of the incident and in the FIR different story has been mentioned. Only the evidence against appellant No.2 Guddu is of exhortation, which is a weak type of evidence. The names of the eye-witnesses have not been mentioned in the site plan and no blood was found on spot. Therefore, his submission is that the prosecution story is totally false and prayed for the acquittal of the appellants. 5. In reply, Shri V.G. Khot, learned Public Prosecutor, supported the judgment and the prosecution case and prayed for dismissal of the appeal. 6. After hearing learned counsel for the appellants, I have carefully examined the evidence on record. As per the prosecution story, the incident took place on 18.3.2000 at about 11.30 in the night. The FIR of the incident was recorded on 19.3.2000 at 4 o'clock but it is not clear whether it was written at 4 a.m. or 4 p.m. The FIR is Ex. P-6 lodged by Chhotelal (PW 11), Y.N.S. Bhadoriya (PW 16), Inspector, who had recorded the FIR, in the cross-examination has clarified that the report was written at 4 o'clock in the morning. Though in the FIR morning or evening has not been written but it was written by him in the morning. This is clear from the medical examination report of the injured (Ex. P-4), on which the time of 5 a.m. has been mentioned. It is also not in dispute that as per toe FIR Hawaldar, Gabbar and Jagatsingh had also accompanied the injured to the Police Station and their names have been mentioned in the FIR. Name of Gyansingh has also been mentioned in the FIR. It is not in dispute that the 10 recorded the statements of Gabbar (PW 2) on 19.4.2000, which is Ex. Name of Gyansingh has also been mentioned in the FIR. It is not in dispute that the 10 recorded the statements of Gabbar (PW 2) on 19.4.2000, which is Ex. D-2; Jagatsingh (PW 4) on 28.6.2000, which is Ex. D-3; Gyansingh (PW 5) on 28.6.2000, Ex. D-4; Hawaldar (PW 10) Ex. D-5; and Geeta Devi (PW 12) on 19.4.2000 Ex. D-7 (date of 19:3.2000 has also been mentioned on these statements). Prosecution has also not examined the I.O. in the case, therefore, there is no explanation by the prosecution) that why the statements of material witnesses, those who have been cited as eye witnesses and were also present on the spot at the time of incident, were not recorded in time and why they were recorded after a lapse of one month to three months. 7. In the cases of Balakrushna Swain v. The State of Orissa [ AIR 1971 SC 804 ]; State of Orissa v. Brahmananda Nanda [ AIR 1976 SC 2488 ]; Ganesh Bhavan Patel v. State of Maharashtra [ AIR 1979 SC 135 ]; and Satnam Singh v. State of Rajasthan [ AIR 2000 SC 423 ]; principally it has been held that delay in recording statement of witnesses -casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. In this case, since I.O. has not been examined and the witnesses• have also not explained the reason for recording their statements after a long delay of three months in the light of the fact that they were present at the Police Station after the FIR, their testimony is not reliable. 8. Statements of Keshav Singh (PW 1), Gabbar (PW 2) and Chhotelal (PW 11) were recorded under section 161, CrPC on the next day of the incident, i.e., on 19.3.2000. Keshav Singh (PW 1) has deposed in his examination-in-chief that at about 11 o'clock in the night he was sitting on the door of his house along with Gabbar, Mukesh, Gyansingh, Jagatsingh, Hawaldarsingh etc. Lalsingh and Guddu came on spot and gave abuses to Chhotelal that "you have not given evidence in our favour, therefore, the accused persons could not be convicted". Guddu exhorted to Lalsingh and said that "fire him" and thereafter Lalsingh fired from his gun. Chhotelal received injuries in his waist. Lalsingh and Guddu came on spot and gave abuses to Chhotelal that "you have not given evidence in our favour, therefore, the accused persons could not be convicted". Guddu exhorted to Lalsingh and said that "fire him" and thereafter Lalsingh fired from his gun. Chhotelal received injuries in his waist. At that time he was covered with guilt and thereafter accused persons ran away from the spot. In the cross-examination he has stated that he is the nephew of the injured. At the time of incident Chhotelal was sitting on a cot and he was advising to the labourers on some agricultural topic. Sufficient natural light was available but no electric light was there on spot and the fire was made from the distance of 4-5 hands. When the shot was made. Chhotelal stood upon the cot, later on he said--not on the cot, but on the earth. The blood was available on the spot. Why the blood has not been shown in the spot map, he cannot give any reason. He is also the witness of spot map Ex. P-1. 9. Gabbar (PW 2), who is also the nephew of the injured, has stated that Chhotelal was sleeping in his Madhaiya and Gyansingh, Keshav, Hawaldar, Jagatsingh, Mukesh and he were also present nearby the place. Chhotelal received gunshot. They all came near Chhotelal and thereafter he was taken to Gohad Police Station. He is also the witness of spot map (Ex. P-1). In the cross-examination he has admitted that at the time of incident Chhotelal was sleeping and there was no light in the village. When both the persons came near the cot of Chhotelal, he could not see them but when they abused Chhotelal, he woke up. He has resiled from his case-diary statement Ex. D-2. He has stated that why the police has not written in the case-diary statement Ex. D-2 that he along with Keshav, Gyansingh, Mukesh and Jagatsingh were sitting near the place of fire and after hearing wordy quarrel between. Chhotelal and Lalsingh they came on spot, he cannot give any reason. He has stated that Geeta Devi was not present at the place of fire. He has not given this statement to the police that Lalsingh fired on him from his mouser gun and blood came out from his back. He has not given this statement to the police in Ex. He has stated that Geeta Devi was not present at the place of fire. He has not given this statement to the police that Lalsingh fired on him from his mouser gun and blood came out from his back. He has not given this statement to the police in Ex. D-2 that Lalsingh fired on Chhotelal from his Mouser gun but why the police has written the same, he cannot give any reason. Therefore, it is clear that the statement of this witness is contrary to his case diary statement Ex. D-2, as before the police he gave a statement that he himself received firearm injury from the gun of Lalsingh and blood came out. 10. Chhotelal (PW 11), who is injured, has narrated a different story. In the examination-in-chief he says that at about 11.30 he was sleeping in his Madhaiya and nobody else was sleeping nearby him. Lalsingh came on spot. He was abusing him and saying that "you have not given evidence, therefore, his enemies could not be convicted". Lalsingh was carrying Mouser gun. Guddu was also with him. Guddu exhorted to fire gunshot. He tried to run away but Lalsingh fired and he received one gunshot on his back, he fell down and became unconscious. Thereafter, Gyansingh, Jagatsingh, Gabbar, Hawaldar and Mukesh came on spot. In the cross-examination he has stated that Gyansingh was sleeping on another Madhaiya in front of his house. In para 7 of his cross-examination he states that in the FIR he has not stated that Guddu exhorted. Why the police has also not written about the abuses in the FIR, he cannot give any reason. In his case-diary statement Ex. D-6 he had not told that his brother's son was sleeping nearby him but why the police has written, he cannot give any reason. He has admitted that there is no person named Mukesh in the village. He has admitted that in the case of murder of Udaisingh, father of Lalsingh, he was not cited as witness nor he had received any summon nor he had given any evidence. From this evidence, it appears that there was no enmity between the parties and this cannot be a reason to fire gunshot at the injured. 11. Dr. A.K. Mudgal (PW 8) examined injured Chhotelal. The injured received gunshot injury. From this evidence, it appears that there was no enmity between the parties and this cannot be a reason to fire gunshot at the injured. 11. Dr. A.K. Mudgal (PW 8) examined injured Chhotelal. The injured received gunshot injury. The doctor found that there is a oval shaped wound, 1-1/2 in diameter in middle of back at vertibral level L-L, bleeding slightly, the margins are inverted. No blackening or charring seen around the wound, depth cannot be measured. Medical Examination Report is Ex. P-4. As per the doctor, injured received a gunshot injury on his back and because of that the legs of the injured became weak and he is unable to walk. In the re-examination-in-chief the doctor has stated that the nature of injury was grievous. In the cross-examination he admits that in the medical report he has not written that the injury was dangerous to life. 12. There are various other infirmities in the prosecution case, such as, in the spot map no blood has been shown and clothes and bed, which were seized were not referred for chemical examination: there is no chemical examination report on record : the gun was also not referred for chemical examination: it is also an important circumstance in favour of the appellants that after the incident he himself went to the police station and on the instruction of I.O. he deposited the rifle in the police station along with the licence, this has been confirmed by Ashoksingh (PW 14). After considering the entire evidence on record it is clear that Jagatsingh (PW 4), Gyansingh (PW 5) and Hawaldar (PW 10) were not the eye-witnesses. They had not seen the incident and their presence on spot is doubtful on the fact that their statements were recorded after three months though in the FIR their names have been mentioned. The statement of Geeta Devi (PW 12) was also recorded after a month. The police has not furnished any explanation for this delay. The name of Geeta Devi, daughter of the injured has also not been mentioned in the FIR. So far as the evidence of Keshav Singh (PW 1) and Gabbar (PW 2) is concerned, they have given contradictory statement, therefore, their evidence cannot be said to be reliable. There is also no proof on record whether any source of light was available on spot or not. So far as the evidence of Keshav Singh (PW 1) and Gabbar (PW 2) is concerned, they have given contradictory statement, therefore, their evidence cannot be said to be reliable. There is also no proof on record whether any source of light was available on spot or not. From the evidence of Gabbar (PW 2) it is clear that he gave a different version of the incident, as he says in the statement recorded under section 161, CrPC that he received gunshot injury in his back from the gun of- the appellant Lalsingh. In his case diary statement he does not say that Lalsingh fired on Chhotelal but he says he fired on him. Therefore, from the evidence of these witnesses the story of the prosecution has become quite doubtful. The statement of Chhotelal (PW 11) also cannot be held to be reliable, as when he was sleeping in the night at about 11.30 covered with quilt, it was not possible for him to see the assailants. When he was sleeping, how he heard the abuses, it is also not believable. There is no convincing evidence on record that any source of light was available there. In such a situation it cannot be said that he had seen the assailant, who was carrying Mouser gun. On the question of presence of Gyansingh nearby him, looking to the omission in his case diary statement about presence of Gyansingh his statement cannot be said to be reliable. There are other omissions and contradictions in his case diary statement Ex. D-6. He himself has admitted that Mukesh, Gabbar, Geeta and Keshavsingh came later on when he became unconscious and he himself says that there is no person named Mukesh in the village, therefore, his evidence is not trustworthy and it will not be proper to maintain conviction on his sole testimony. 13. The evidence of exhortation is a weak type of evidence. In the cases of Jainul Haque v. State of Bihar [ AIR 1974 SC 45 ] and Hem Raj v. Raja Ram [ AIR 2004 SC 1489 ] it has been held that evidence I of exhortation is, in the very nature of things, a weak piece of evidence. There is nothing in the FIR about the exhortation by Guddu. To that extent the conviction of appellant No. 2 Guddu cannot be held to be proper. 14. There is nothing in the FIR about the exhortation by Guddu. To that extent the conviction of appellant No. 2 Guddu cannot be held to be proper. 14. So far as the question of sufficient light on the place of occurrence is concerned, as per the statements of witnesses the incident took place in the dark night. No source of light was available at the place of occurrence. In the FIR also nothing has been mentioned about the source of light. Witnesses have also given contradictory evidence on the point of availability of light. In such circumstances, it appears I doubtful that the complainant Chhotelal was in a position to see the assailants. Supreme Court has also considered the similar question in the case of State of Punjab v. Sohan Singh [ AIR 1974 SC 300 ] and State of Rajasthan v. Bhola Singh [ AIR 1994 SC 542 ]. It was also argued that no blood was available on spot and the same was also not I found on spot. In this connection the following decisions may be referred in the cases of Karunakaran v. State of Tamil Nadu [AIR 1976. SC 383], Lakshmi Singh v. State of Bihar [ AIR 1976 SC 2263 ], Amar Singh v. State of Punjab [ AIR 1987 SC 826 ], State of U.P. v. Moti Ram [ AIR 1990 SC 1709 ], Chhakki v. State of M.P. [ 1990 JLJ 772 ] and Buta Singh v. The State of Punjab [ AIR 1991 SC 1316 ], which makes the prosecution story doubtful about the place of incident. 15. So far as the question of mentioning of names of eye-witnesses in the site plan, it was argued that the same is fatal to the prosecution case and in the absence of such an evidence the prosecution story cannot be considered as genuine but simply on the ground that the names of eye-witnesses have not been mentioned in the site plan, the accused persons cannot be acquitted if other genuine and reliable ocular evidence is available on record. If the material evidence is doubtful in that case, this circumstance also can be considered as it relates to the investigation. If the material evidence is doubtful in that case, this circumstance also can be considered as it relates to the investigation. Many a times, Investigating Officer may ommit to mention the names with a view to help the accused persons but that alone cannot be a ground to create doubt in the prosecution story if other cogent and reliable evidence is available. No doubt, the site plan is an important document to be prepared and proved by the prosecution but its genuineness depends on so many other factors. 16. In the light of the aforesaid discussion and evidence on record, under the facts and circumstances of the case, the prosecution has failed to prove the charges against the appellants by producing the evidence beyond reasonable doubt. The evidence of Keshavsingh (PW 1) and Gabbar (PW 2) is contradictory to each other. Even their case-diary statements are contradictory to each other. Therefore, it appears that the learned Public Prosecutor has not taken proper care in producing the witnesses of contradictory evidence before the Court. Chhotelal (PW 11) has failed to show any motive against the appellant for his involvement in the crime. When complainant was not witness in the criminal case in which accused persons could not be convicted and which has been shown to be the reason of commission of crime against Lalsingh, there is no convincing evidence about the motive of the appellant about his involvement in the commission of crime. The evidence of complainant Chhotelal (PW 11) does not inspire confidence. His evidence is doubtful. Prosecution has also not examined the Investigating Officer, therefore, in totality the only conclusion after appreciating the prosecution evidence in this case is that the prosecution evidence is full of contradictions and there is no consistency in the evidence of the witnesses, which shows that the prosecution story is highly doubtful, therefore, the conviction of the appellants cannot be maintained. . As held above, the only evidence against another co-ace used-appellant No.2 Guddu was of exhortation and the same has not been found proved. It is also no doubt that the evidence of exhortation is a very weak type of evidence. Thus, conviction of both the appellants cannot be maintained and they are entitled for benefit of doubt. 17. Thus, this appeal is allowed. The conviction of the appellants is set aside. They are acquitted of the charges giving them benefit of doubt. It is also no doubt that the evidence of exhortation is a very weak type of evidence. Thus, conviction of both the appellants cannot be maintained and they are entitled for benefit of doubt. 17. Thus, this appeal is allowed. The conviction of the appellants is set aside. They are acquitted of the charges giving them benefit of doubt. Appellant No. 2 is on bail. His bail bonds are discharged. Appellant No. 1 is in jail. He be released forthwith if not required in any other case. ........................