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Madhya Pradesh High Court · body

2008 DIGILAW 1295 (MP)

UMRAO s/o CHHITAJI BAGRI v. STATE OF M. P.

2008-11-05

S.L.KOCHAR, S.R.WAGHMARE

body2008
JUDGMENT : S. L. KOCHAR, J. 1. By this appeal under section 374 of the Code of Criminal Procedure, the appellants have challenged the legality and validity of the judgment dated 18-9-1999 passed by the learned Addl. Sessions Judge, Ujjain in Sessions Trial No. 58/99 whereby each of the appellants has been convicted under sections 302/34, 307/34 and 506 of the Indian Penal Code and sentenced to undergo imprisonment for life and fine of Rs. 500/-, R. I. for five years and fine of Rs. 500/- and R.I. for one year and fine of Rs. 200/- respectively, in default of payment of fine each of the appellants shall suffer additional R.I. for one year, one year and three months respectively. 2. Laconically, the facts of the prosecution case as put forth before the trial Court are that the complainant Babulal (since deceased) resident of village Belri was grazing his cattle on 13-7-1998 at 12.00 in the noon in the field of Nandram. At that juncture, Shankar Bagri, Umraosingh both armed with lathi, and Omprakash having Dhariya reached there and told that why they did not allow the cattle of Madan Dhakad to graze since the land was sold to Madan and Shankar dealt a lathi blow on parietal region of the complainant and Omprakash and Umrao Dhariya-lathi on his leg. They also caused injuries on the right hand of complainant's father Nandram. Surajbai also reached there armed with axe. They threatened to kill them. On 13-7-1998, at 8.00 PM, report Ex.P/29 to this effect was lodged at Kayatha Police Station which was registered at Cr. No. 85.98 for the offence punishable under sections 323, 294, 506 read with section 34 of the Indian Penal Code. It was recorded by PW-17 Rajesh Singh Chauhan ASI. Injured Nandram and Babulal were sent for medical examination vide requisition Ex.P/11 and P/13 respectively. They were medically examined by PW-10 Dr. Rameshwar Vyas. MLC Report of Nandram is Ex.P/12 whereas MLC report of Babulal is Ex.P/14. Police reached on the spot and prepared spot map Ex.P/22 on 14-7-1998. Ex.P/23 is the query letter sent for ascertaining the nature of injuries. Vide seizure memo Ex.P/24, shirt and Baniyan were seized from Sohadarabai. Accused Umrao, Omprakash and Mathurabai were arrested vide arrest memos P/30 to P/32. At the instance of accused Umrao and Omprakash lathi and Dhariya were seized vide seizure memo Ex.P/35 and P/36. Ex.P/23 is the query letter sent for ascertaining the nature of injuries. Vide seizure memo Ex.P/24, shirt and Baniyan were seized from Sohadarabai. Accused Umrao, Omprakash and Mathurabai were arrested vide arrest memos P/30 to P/32. At the instance of accused Umrao and Omprakash lathi and Dhariya were seized vide seizure memo Ex.P/35 and P/36. The seized articles were sent to Forensic Science Laboratory, Sagar for examination vide Ex.P/40 and P/42 and the reports received from the Forensic Science Laboratory are Ex.P/39 and P/41. Dr. Ashish Pal took X-Ray of Babulal and Nandram vide Ex.P/27 and P/43. Vide arrest memos Ex.P/3 and P/4 accused Surajbai and Kamlabai were also arrested. 3. During treatment Babulal died on 20-7-1998. After preparing inquest proceedings body of Babulal was sent for post-mortem examination which was conducted by Dr. PW-12 Sunil Agrawal. According to Autopsy Surgeon, deceased died because of cardio respiratory failure within 6 to 36 hours from the time of post-mortem examination. After investigation, six accused persons were charge-sheeted for the offences punishable under sections 148, 302, 302/149, 307, 307/149 and 506 of the Indian Penal Code. Accused persons denied the charges and pleaded their false implication. They did not examine any witness in defence. Learned trial Court, on conclusion of trial, while acquitting two accused persons namely Mathurabai and Kamlabai, convicted and sentenced the appellants as described hereinabove. 4. Before the trial Court as well as before this Court, homicidal death of deceased Babulal has not been questioned by the defence. Even otherwise in view of medical evidence of PW-10 Dr. Rameshwar Vyas who proved the MLC report Ex.P/11 and according to the evidence of PW-12 Dr. Sunil Agrawal, Autopsy Surgeon, Babulal died due to cardio respiratory failure as a result of the injuries sustained by him. His death was homicidal in nature. Dr. Agrawal proved post-mortem report Ex.P/19. 5. Deceased died during treatment in the hospital on 20-7-1998. PW-18 Dr. Shaligram Chauhan has deposed that the deceased was referred for treatment to Indore, but his relatives refused to take him to Indore, therefore, he was treated in Civil Hospital, Ujjain. Dr. Shaligram Chauhan proved the Bed Head Ticket Ex.P/44 to Ex.P/49. PW-16 Dr. Ashish Pal took X-Ray of Babulal and found fracture of his right fibula bone. X-Ray report is Ex.P/27. Dr. Shaligram Chauhan proved the Bed Head Ticket Ex.P/44 to Ex.P/49. PW-16 Dr. Ashish Pal took X-Ray of Babulal and found fracture of his right fibula bone. X-Ray report is Ex.P/27. He also took X-Ray of Nandram (It appears that in his statement because of typing mistake, in place of Nandram 'Nandlal' is typed in para 2 of his deposition) and found fractures of left radius, ulna and left fibula bones vide X-Ray Report Ex.P/43. 6. Conviction of the appellants is based mainly on the First Information Report Ex.P/29 lodged by deceased Babulal, which has been considered as Dying Declaration because of his death, and eye-witness account of PW-2 Nandram and PW-4 Sohadrabai, respectively father and mother of the deceased. 7. Injured eye-witness PW-2 Nandram has deposed that on the date of incident, in the noon at 12.00 O'Clock, he was grazing cattle in the forest. At that moment, appellants Omprakash, Umrao, Shankar, Surajbai and acquitted co-accused persons Kamlabai and Mathurabai reached over there having Dhariya, lathi, axe and sickle and started assaulting his son Babulal. Appellant Omprakash caused injury on head of deceased Babulal by Dharia (a sharp edged heavy iron object). Appellant Umrao assaulted him by lathi. Deceased Babulal was caught by Omprakash and Shankar, thereafter, women assaulted him by axe. Because of assault, he and Babulal fell unconscious. He further stated that on the date of incident in the morning Madansingh (PW-9, since hostile) was grazing the cattle in his field which was objected by him because of which in the noon they made a murderous attack on them. He fell unconscious as such, he could not go to lodge the report and they were taken to Police Station Kayatha. He also stated that prior to them, appellant Umrao reached at the Police Station. 8. In cross-examination, the say of this witness is that the land on which cattle were made to graze was in possession of appellant Umrao and himself. He admitted that he forcibly stopped Madan from grazing the cattle and Madan went to his house. He denied the defence suggestion that he was grazing the cattle in the grass-land of appellant Umrao and accompanied by his wife and son. He has specifically stated that till recording of his statement in the Trial Court, police had not recorded his statement and he was not at all interrogated by the police. He denied the defence suggestion that he was grazing the cattle in the grass-land of appellant Umrao and accompanied by his wife and son. He has specifically stated that till recording of his statement in the Trial Court, police had not recorded his statement and he was not at all interrogated by the police. He has also stated that for the first time, he gave statement about the incident and prior to his cross-examination also he gave statement for the first time. He denied the defence suggestion that he was speaking lie because he had given different statement to the police. He was confronted with his so-called case-diary statement Ex.D/1 regarding important omissions which amounts contradiction that after arrival of Omprakash, Omprakash and Shankar caught hold of his son Babulal, thereafter, women reached there having axe and caused injuries to Babulal. This witness failed to explain this omission in his so-called statement Ex.D/1. In para 4 of his cross-examination, he admitted about his prosecution in Court on the basis of the report lodged by the accused persons. In para 6 of his cross-examination, he admitted of his having good relations with the appellants from before two months of the date of incident, but he denied development of inimical terms after selling the grassland to Madan Dhakad. He has voluntarily stated that the incident had occurred prior to sale of the land. He also denied that the incident took place in the same transaction when Madan objected to graze cattle and voluntarily stated that the incident had taken place after two hours, but this fact he did not disclose to anybody and stated in Court for the first time. In para 7, the say of this witness is that Sohadrabai (PW-4) reached on the spot after half to quarter to one hour of the incident. In para 8, he denied the defence suggestion that he along with the deceased and his family members reached in the field of Umrao and Omprakash and assaulted them by axe and Farsa and they sustained injuries. He also denied admission of Omprakash and Umrao in Tarana and Ujjain Hospitals and on the basis of the report lodged by Omprakash he was arrested and facing prosecution in Court. 9. He also denied admission of Omprakash and Umrao in Tarana and Ujjain Hospitals and on the basis of the report lodged by Omprakash he was arrested and facing prosecution in Court. 9. In the opinion of this Court, this witness PW-2 Nandram is not a fully reliable witness because of his contradictory statement in regard to overt act of accused persons and giving statement about the incident for the first time in Court. He has specifically stated that he was not at all interrogated by the Police till his examination in Court, meaning thereby that the case-diary statement was not his statement. There is no reason for this witness to speak this fact and he has not been declared hostile by the prosecution. Therefore, the prosecution is bound by his version. In para 4, he admitted about facing prosecution in Court and in para 8, he denied this fact. This shows that this witness was not giving the statement in Court honestly and behaved like a wavering minded person. According to this witness, acquitted co-accused Mathurabai and Kamlabai were having axe and caused injuries to deceased by axe. According to medical evidence of PW-10 Dr. Rameshwar Vyas, out of ten injuries, deceased suffered 7 incised wounds, two swellings and 1 lacerated wound. Learned trial Court has not relied upon the statement of this witness against Mathurabai and Kamlabai. The original prosecution case was that six accused persons assaulted the deceased, out of whom, all the three women were having sharp edged weapons and same is the statement given by this witness in Court. That means that amongst the male accused persons who were having lathi, Omprakash caused only three injuries by lathi, which is also contradictory to the medical evidence, because according to this witness, all assaulted the deceased and thereafter to him. 10. PW-2 Nandram has specifically admitted in his examination-in-chief that the appellant Umrao and others reached at the Police Station prior to his reaching. This fact has also been stated by PW-4 Sohadrabai in para 8 of her deposition. In view of the specific statement of eye witness PW-2 Nandram that Sohadrabai (PW-4) reached on the spot after half to quarter to one hour of his and Babulal's assault as well as the accused persons had left the spot after beating, the statement of Sohadrabai cannot be relied upon as an eye-witness. 11. In view of the specific statement of eye witness PW-2 Nandram that Sohadrabai (PW-4) reached on the spot after half to quarter to one hour of his and Babulal's assault as well as the accused persons had left the spot after beating, the statement of Sohadrabai cannot be relied upon as an eye-witness. 11. Sohadrabai (PW-4) has deposed that deceased Babulal and witness Nandram were brought at village Kayatha where they stayed in a waiting room and she had gone to the Police Station with village Chowkidar to give information and on her information, Station House Officer reached at the passenger's waiting room and interrogated Babulal. Babulal disclosed the names of the appellants and co-accused persons. After interrogation, SHO directed them to take Babulal to Tarana Hospital and then they reached to Tarana Hospital. The statement of PW-4 Sohadrabai is at variance with the statement of PW-17 Rajesh Singh Chauhan SHO of P. S. Kayatha who has deposed that on 13-7-1998 at 8 O'clock in the Police Station he recorded the First Information Report Ex.P/29 at the instance of deceased Babulal. Sohadrabai does not support the version of SHO Rajesh Singh Chauhan about recording of FIR in the Police Station. Even she did not state about recording of FIR in Passengers' waiting room at the bus-stand. In the light of the statement of Sohadrabai, lodging of the FIR by Babulal Ex.P/29 has become very doubtful and no implicit reliance can be placed on it as a Dying Declaration. Sohadrabai has also admitted in para 7 that they waited in passengers' waiting room and on her intimation SHO reached there, but he did not interrogate her. If really she was the eye-witness of the incident and FIR was recorded in her present, there was no reason for the SHO not to examine her and record her statement immediately. This circumstance also throws considerable amount of doubt regarding lodging of the First Information by the deceased. The statement of PW-8 Atmaram, village Chowkidar gives further jolt to the truthfulness and veracity of lodging of First Information Report Ex.P/29 by deceased Babulal. According to Atmaram, the report was lodged in his presence by Sohadrabai, mother of deceased Babulal. He has stated that he was informed by Sohadrabai about quarrel between Omprakash and Babulal, thereafter, he reached on the spot and saw the injuries on the person of Babulal. According to Atmaram, the report was lodged in his presence by Sohadrabai, mother of deceased Babulal. He has stated that he was informed by Sohadrabai about quarrel between Omprakash and Babulal, thereafter, he reached on the spot and saw the injuries on the person of Babulal. In para 2, he has stated that when he reached on the spot, he found Babulal and Nandram in injured and unconscious condition. They did not speak anything and they were brought to the Police Station in a matador where both remained in matador and Sohadrabai went to the Police Station. The further say of this witness is that in Kayatha Police Station, no report was lodged by Babulal and Nandram and they did not disclose anything to the SHO in waiting room. Atmaram has deposed that he was a Chowkidar of village since last ten years. He has admitted about the criminal activities and various criminal acts of deceased Babulal. According to this witness, Babulal was having inimical terms with so many persons. He had abducted one woman resident of village Naugaon and from the said village eight to ten persons had come in a jeep to beat Babulal. Babulal used to molest the modesty of village women and on objection being raised by the villagers, he used to deliver threats to them. Whole village was terrorized by the activities of Babulal. 12. After cross-examination of PW-8 Atmaram, the prosecutor prayed for declaring him hostile which was objected by the defence counsel. Learned trial Court stopped recording statement and granted time for hearing arguments on this question. Learned trial Court vide order-sheet dated 13-8-1999, heard arguments on the question of declaring witness Atmaram hostile, passed orders and held that there was no reason to declare this witness hostile to the prosecution and the prayer of the prosecution in this regard was rejected. Thus, the prosecution is bound by the statement of this witness. The learned trial Court erred in holding in para 29 of the impugned judgment, that even after declaring this witness hostile, he does not support the prosecution case. 13. Thus, the prosecution is bound by the statement of this witness. The learned trial Court erred in holding in para 29 of the impugned judgment, that even after declaring this witness hostile, he does not support the prosecution case. 13. Supreme Court in the case of Marudanal vs. State of Kerala, AIR 1980 SC 638 has observed thus :- "The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence." 14. In the case at hand, looking to the contradictory statements regarding lodging of FIR, as discussed hereinabove and serious and unconscious condition of deceased and injured on the spot, when Sohadrabai reached as well as unconscious condition of Babulal at the time of examination by PW-18 Dr. Shaligram Chauhan in Ujjain Hospital, it would be very unsafe, in the view of this Court, to bank upon the FIR as Dying Declaration, because there is no material to check the authenticity of the statement of Investigating Officer Rajesh Singh Chauhan. It is pertinent to mention here that the deceased and injured were examined first in point of time by PW-10 Dr. Rameshwar Vyas, who has not stated anything about the condition of deceased. Looking to the number of injuries and underneath damage caused as a result of the injuries on the skull as well as fractures of right fibula bone as per medical evidence of Autopsy Surgeon, there was very bleak chance of consciousness of the deceased after sustaining injuries on 13-7-1998 at 12.00 O'Clock in the noon and lodging of FIR on the same day in the night at 8.00 PM after eight hours especially when during this period, he was not given any medical aid to stop bleeding from as many as seven incised wounds and swelling and lacerated wound. 15. It may also be worthwhile to mention here that the deceased remained alive for a long period in the hospital, but his Dying Declaration was not got recorded by the Investigating Officer or by Magistrate. There is no evidence available on record that during this period he was conscious. 15. It may also be worthwhile to mention here that the deceased remained alive for a long period in the hospital, but his Dying Declaration was not got recorded by the Investigating Officer or by Magistrate. There is no evidence available on record that during this period he was conscious. This fact also supports the fact that deceased fell unconscious on the spot after sustaining injuries as stated by the witnesses and did not regain consciousness. We hold that F.I.R. is a fabricated piece of document. Thus, in the opinion of this Court, the prosecution has miserably failed to bring home the guilt of the appellant beyond reasonable doubt and from the entire evidence as adduced and produced, it is not possible to separate the grain from the chaff. Therefore, the appellants are entitled to get benefit of doubt. 16. As a result of the discussion as aforesaid, this appeal deserves to be and is hereby allowed. The judgment of conviction and order of sentence of the appellants as passed by the learned trial Court are hereby set aside. The appellants are on bail. Their bail and surety bonds shall stand discharged.