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Madhya Pradesh High Court · body

2008 DIGILAW 970 (MP)

Mukesh Babulal Patel etc. v. State of M. P.

2008-08-05

MANJUSHA P.NAMJOSHI, S.L.KOCHAR

body2008
Judgement S. L. KOCHAR, J. :- Since all the aforesaid three appeals arise out of one and the same judgment, therefore, they are being decided and disposed of by this common judgment. 2. By this appeal the appellants assail the validity, legality and propriety of the judgment dated 13-12-2001 passed by the learned Sessions Judge, Dewas in S.T. No. 189/2000 whereby the Appellants have been convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to imprisonment for life. 3. Briefly stated, the facts of the prosecution case as put forth before the trial Court were that there was a dispute in regard to illicit relation of Rajubai, wife of deceased Motisingh with the appellant Mukesh, therefore, Motisingh used to live with separate with Prathvisingh from Rajubai and son Banti alias Santosh. On 23-8-2000 in the night at 9.30 p.m., Prathvisingh along with his brother deceased Motisingh alias Girish, after closing the shop was returning to their house at Manihar Bakhal. In the way on Idgah Road near Anjuman school, accused Rafiq alias Munna, Salamat, Mukesh, Santosh, Chandan alias Banti and Banti alias Santosh armed with sword, khukhri and knife came there and Rafiq abusing Motisingh said that "Stop, where he was going" dealt a sword blow on his head as a result of which Motisingh fell down on the ground. Accused Mukesh and Santosh with sword and Salamat with Khukhri and Chandan alias Banti with knife assaulted Motisingh on his neck. Son of Motisingh named Banti alias Santosh uttered that "finish him to death" because the deceased was harassing his mother, putting obstruction in their business and presses them to vacate the house. Accused Rafiq also exhorted for furnishing Motisingh to death. Prithvisingh cried for help "Bachao Bachao" at which Sanjay Prakhe, his brother Tillu alias Ashok and neighbouring shop-keepers reached over there whereupon the accused persons fled away. The deceased sustained so many injuries from which blood was oozing and became unconscious. Thereupon a police van came there and deceased was taken to District Hospital, Dewas where on examination by the doctors he was declared dead. It is said that on the date of incident at 1.00 p.m. wife of the deceased had gone to his shop and had a quarrel. Thereupon a police van came there and deceased was taken to District Hospital, Dewas where on examination by the doctors he was declared dead. It is said that on the date of incident at 1.00 p.m. wife of the deceased had gone to his shop and had a quarrel. At 10/15 p.m., Prathvisingh lodged the First Information Report which was recorded by Station House Officer Deepak Shukla (PW-10) under Sections 147, 148, 302 read with Section 149 and 120-B of the Indian Penal Code as Marg No. 67/2000. In the hospital, Panchayatnama (inquest) of dead body was prepared and on 24-8-2000 the dead body was sent for postmortem examination which was conducted by Dr. Shakirali (PW-9) at 10.00 a.m. In the opinion of the doctor, the cause of death was shock and heamorrhage due to injuries. Deepak Shukla prepared the spot map and seized the blood stained and controlled earth from the spot. Clothes of the deceased received from the hospital were also seized and sealed. Accused persons were arrested and on their disclosure statements, weapons of offence were also seized. The seized articles were sent for Chemical Examination to the Forensic Science Laboratory, report whereof is Ex.P/34. On due investigation, the accused persons were charge-sheeted for the aforementioned offences. 4. The accused persons denied the charges and pleaded that they have been falsely implicated. The learned trial Court, while acquitting the co-accused Santosh s/o Devilal, Chandan alias Banti s/o Bhagwan-singh and Salamat Ali, convicted and sentenced the appellants as indicated herein-above. 5. Learned counsel for the appellants have vehemently argued that the incident occurred in a market, but no independent witness was examined by the prosecution and FIR Ex.P/1 lodged by PW-1 Prathvisingh, brother of the deceased was brought into existence in ante date and time after due discussion and deliberations. 5. Learned counsel for the appellants have vehemently argued that the incident occurred in a market, but no independent witness was examined by the prosecution and FIR Ex.P/1 lodged by PW-1 Prathvisingh, brother of the deceased was brought into existence in ante date and time after due discussion and deliberations. It is also submitted that the case of the present appellants stands on same footing with the case of acquitted co-accused persons and no specific overt act of appellant Banti alias Santosh has been described by PW-1 Prathvisingh in the FIR; and that the prosecution has failed to prove as to who was the scribe of the FIR Ex.P/1, because the Investigating Officer PW-10 Deepak Shukla and PW-1 Prathvisingh have given contradictory statements on this aspect; and that there is no specific evidence lead by the prosecution with regard to motive and that PW-1 Prathvisingh was not knowing the father's names of the accused persons whereas in the First Information Report, father's names find place. 6. On the other hand, learned counsel for the State has supported the impugned judgment passed by the learned trial Court. 7. Learned counsel for the appellants have not disputed the homicidal death of the deceased. Even otherwise, it is fully proved by the evidence of the Autopsy Surgeon Dr. Shakir Ali (PW-9), who proved the Postmortem Examination report Ex.P/31 and found the following internal and external injuries :- (1) Lacerated wound 2" x 1" x ½" on right side of face. (2) Incised wound over left mandible 8" x 2" x 2". (3) Same incised wound parallel to injury No. 2. (4) Incised wound 1" x ¼" two in number over one on right side of face. (5) Incised wound 6" x 1½" x 3" extending from mandible to posterior side of head two in number parallel. (6) Incised wound 1" x ½" x ½" over abdomen right side. (7) Over back left side eight incised wounds (penetrating wounds) varies 1" x ½" to 6" deep downward in cavity. (8) 3 incised wounds over left ankle Varies 1" x 1" x ½". (9) Two incised wounds 1" x ½" x ½" over left hand. (10) Incised wound over occipital region 1" x ½" x bone deep two in number. (11) Incised wound over left axillary region 1" x ½" x cavity deep in all three wounds. (8) 3 incised wounds over left ankle Varies 1" x 1" x ½". (9) Two incised wounds 1" x ½" x ½" over left hand. (10) Incised wound over occipital region 1" x ½" x bone deep two in number. (11) Incised wound over left axillary region 1" x ½" x cavity deep in all three wounds. In the opinion of the Autopsy Surgeon, the death was due to shock as a result of extensive haemorrhage and duration of death was within 24 hours from the time of postmortem examination. 8. First of all we deal with the argument with regard to genuineness of First Information Report Ex.P/1. The challenge has been made on the ground that there is overwriting in crime number at figure "9". This is true that in the First Information Report on first figure of crime No. 9, there is overwriting, but in the facts and circumstances of the present case, because of overwriting, how it would affect the genuineness of the First Information Report, has not been pointed out by the defence. The overwriting could be because of so many reasons and no explanation has been sought by the defence in cross-examination of the scribe of the First Information Report Deepak Shukla (PW-10). It is also argued that in the Margintimation report Ex.P/2 and medical requisition form, names of the accused persons are not mentioned and if the names were known to the police and First Information Report was recorded prior to writing of these documents, the names must have been written in Marg report (inquest report) as well as medical requisition form. In our opinion, now it is well established legal position that law does not require to mention the names of the accused persons in the inquest report and in medical requisition form. Therefore, on this count it cannot be said that the First Information Report was not a genuine piece of document. The incident occurred on 23-8-2000 in the night at 9.30 p.m. and the report was lodged at 10.15 p.m. and copy of the First Information Report was sent to the Chief Judicial Magistrate on 24-8-2000, the immediate next day in compliance with the provisions under Section 157 of the Code of Criminal Procedure. 9. The incident occurred on 23-8-2000 in the night at 9.30 p.m. and the report was lodged at 10.15 p.m. and copy of the First Information Report was sent to the Chief Judicial Magistrate on 24-8-2000, the immediate next day in compliance with the provisions under Section 157 of the Code of Criminal Procedure. 9. It is true that PW-1 Prathvisingh has admitted in cross-examination para 10 that he was not knowing the names of the fathers of the assailants, but mere this fact would not detract his evidence as an eyewitness as he was not confronted with the contents of the First Information Report Ex.P/1 in cross-examination and no opportunity was given to him to explain the contradiction in this regard. It is trite that the First Information Report is not a substantive piece of evidence arid it can be used only to contradict its author with this statement in Court and to corroborate and no contradiction was brought on record by the defence, therefore, this argument is not helpful to them. See Podda Narayana v. State of Andhra Pradesh ( AIR 1975 SC 1252 ) : (1975 Cri LJ 1062), Sat Paul y. Delhi Administration ( AIR 1976 SC 294 ) : (1976 Cri LJ 295), State (Delhi Administration) v. Laxman Kumar ( AIR 1986 SC 250 ) : (1996 Cri LJ 155) and State of U.P. v. Babulnath ( 1994 (6) SCC 29 , para 10). The prosecution has also properly established that the First Information Report was recorded in presence of PW-10 Deepak Shukla by ASI Shrivastava, thereafter PW-1 Prithvisingh signed on the First Information Report as well as PW-10 Deepak Shukla also signed on it. PW-10 Deepak Shukla has proved the signature of eye-witness Prithvisingh at portion marked A to A and his own signature at portion marked B to B. In cross-examination para 12, PW-10 Deepak Shukla has specifically stated that in the case-diary, he has mentioned about writing of documents in the presence and at his instructions by ASI Shrivastava. There is no contradictions between PW-10 Deepak Shukla and PW-1 Prithvisingh regarding authorship of the First Information Report, because in para 6 of Prithvisingh has specifically stated that he was not remembering the exact name of the scribe of the First Information Report. It is not the requirement of law that the witness or witnesses must know the name of police officer. 10. It is not the requirement of law that the witness or witnesses must know the name of police officer. 10. The next argument of the learned counsel for the appellants that the case of the present appellants stands on same footing with the case of acquitted co-accused persons, has no bearing in the instant case, because no specific overt act is attributed by P.W. 1 Prithvisingh against acquitted co-accused persons. In examination-in-chief para 2, specific say of this witness is that the appellant Rafiq dealt a sword blow on the head of deceased Motisingh, Santosh assaulted by knife and appellant Mukesh Khati caused injury by sword. For acquitted co-accused persons only their presence on a public place was stated. Even general and omnibus statement regarding assaulting the deceased by them is not stated by Prithvisingh. In cross-examination para 11, this witness has again specifically stated that the first blow by sword was given by appellant Rafiq, thereafter, appellant Santosh alias Banti caused blow by knife. In this para 11, the ambiguity has been cleared by the witness with regard to participation of present appellant Santosh alias Banti and not by acquitted co-accused Santosh s/o. Devilal. Acquitted accused Santosh is not known by his alias name Banti. 11. Learned trial Court has disbelieved the testimony of eye-witness P.W. 2 Ashok on the ground that he reached on the spot when the assault was over. P.W. 3 Sanjay, an independent witness was not relied upon relied upon by the trial Court on the ground that because he has admitted in para 5 that he was not knowing the names of the accused persons and he was told, the names on the date of his statement in the Court. Learned trial Court found the presence of P.W. 2 Ashok and P.W. 3 Sanjay sooner or later on the spot and witnessed the incident by independent witness P.W. 3 Sanjay, but on the ground of identity of the assailants, he was not relied upon. We do not find any force in the submission of the learned counsel for the appellants that independent witnesses were not examined. We do not find any force in the submission of the learned counsel for the appellants that independent witnesses were not examined. The prosecution has examined P.W. 3 Sanjay and P.W. 4 Ramprasad Suryavanshi, but both these independent witnesses have not been relied upon by the learned trial Court, because during the course of investigation, the Test Identification parade of the appellants was not held and in the opinion of the trial Court, dock identification was not sufficient to rely. It is pertinent to mention here that P.W. 4 Ramprasad Suryavanshi in cross-examination para 4 has admitted that no Test Identification Parade was held and he had seen the accused persons in the Police Station. A specific question was put to him by the defence that when he came to know the names of the appellants and his answer was that on the spot P.W. 1 Prithvisingh had disclosed their names. This version of the witness in cross-examination fully supports the presence of P.W. 1 Prithvisingh on the spot. 12. It is well settled legal preposition that qualify of the witness is required to be seen and not the quantity and evidence of relations of the deceased cannot be brushed aside only on this ground as he will not leave the real culprit and will implicate an innocent person. The important and material thing to be seen is whether P.W. 1 Prithvisingh was present on the spot and witnessed the incident or not. On visualization of the evidence adduced by the prosecution, this Court is fully satisfied that he was present and had witnessed the incident and also was knowing the appellants by names correctly. In the case in hand, the prosecution has examined as many as four eye-witnesses out of whom P.W. 3 Sanjay and P.W. 4 Ramprasad were the independent eye-witnesses. Their presence has also been established, but they have not been relied upon on the question of identity of the accused persons and the learned trial Court does not find it sufficient to rely the dock identification. 13. Their presence has also been established, but they have not been relied upon on the question of identity of the accused persons and the learned trial Court does not find it sufficient to rely the dock identification. 13. On over all consideration of the evidence adduced by the prosecution, we do not find any material illegality or perversity in appreciation of evidence of all the four eye-witnesses by the trial Court and the learned trial Court applying strict Principles of appreciation of evidence placed reliance only on the statement of P.W. 1 Prithvisingh whose statement in Court is fully corroborated by the medical evidence as well as First Information Report lodged by him without any delay. 14. There is sufficient evidence available on record regarding motive. The appellant Santosh alias Banti is the son of deceased Motisingh and there was a dispute between Motisingh and his wife, acquitted co-accused Rajubai who was residing separate from him. These facts have been stated by P.W. 1 Prithvisingh and P.W. 2 Ashok, the brothers of deceased Motisingh. 15. As a result of the discussion as aforesaid, we do not find any substance in these appeals and consequently they are dismissed. Registry is directed to send a copy of this judgment to the trial Court along with its record in due course. 16. Original judgment is directed to be kept in Cr. Appeal No. 100/2002 and a copy whereof be placed in the file of connected Cr. Appeal No. 107/2002 and Cr. Appeal No. 526/2002. Order accordingly.