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Madhya Pradesh High Court · body

2009 DIGILAW 1409 (MP)

Satyanarayan S/o Dhoolji v. State Of M. P.

2009-12-24

S.K.SETH, S.L.KOCHAR

body2009
JUDGMENT : S. L. KOCHAR. J : The appellants have preferred this appeal against the impugned judgment dated 9-11-2001 passed in Criminal Sessions Trial No. 113/2000 by learned IV Additional Sessions Judge, Ujjain (M.P.), whereby convicted the appellants under section 302/149 of the Indian Penal Code (for short "the IPC"), sentenced to RI for life with fine of Rs.200/-. The appellants have also been convicted under section 148 of "the IPC", sentenced to RI for one year. Both the jail sentences of the appellants have been directed to run concurrently. 2. Laconically the prosecution case, as submitted before the trial Court, is that on 25-11-1999 in the night at 8.30 p.m. complainant Ranchhod (PW-2) was going towards Panchayat Bhavan for getting repairing of his battery torch, at that moment he saw that his nephew deceased Hariram was coming from the side of block office, at that very moment all the appellants having Lathis and Farsi reached over there and started assaulting Hariram by their respective weapons. Complainant Ranchhod (PW-2) raised alarm and flashed light on the face of the appellants, because of which all while saying that whosoever will come near them; they will kill him, went towards their houses. Ranchhod reached near the deceased and saw him. Villagers Mohan Bagri, Bhanvar Bagri and Hakam Singh also reached on the spot. They all saw several injuries on the person of deceased caused by Dharia and Lathis. Deceased died on the spot. They took deceased in tractor of one Bahadur Singh to police station, where Ranchhod lodged the report (Ex.P/2) in the police station, recorded by Sub Inspector Shri SKS Tomar (PW-19) SHO of the police station. Police stepped into investigation and prepared spot map (Ex.P/5), inquest report of the dead body (Ex.P/4) and effected seizure of blood stained and controlled earth from the spot .through seizure memo (Ex.P/6). Appellants were nabbed and on their memorandum statements bamboo-sticks were seized. Seized articles were sent to Forensic Science Laboratory and its Report is Ex.P/36. Investigating officer (PW-19) Shri Tomar after recording the statements of the witnesses acquainted with the facts of the case, filed the charge sheet against the appellants under section 147, 148, 302/149 of "the IPC". 3. Appellants refuted the charges. Appellants Dayaram and Bharat examined two witnesses in defence to substantiate their plea of alibi, rest appellants have not examined any witness in their defence. 3. Appellants refuted the charges. Appellants Dayaram and Bharat examined two witnesses in defence to substantiate their plea of alibi, rest appellants have not examined any witness in their defence. The learned trial Court after examining the prosecution and defence witnesses as well as hearing both the parties, convicted and sentenced the appellants as described hereinabove. 4. We have heard the learned counsel for the parties and also perused the entire record carefully. 5. Learned counsel for the appellants has submitted that eyewitnesses PW-2 Ranchhod, PW-3 Bhanvar and PW-4 Hakam Singh had not, in fact, witnessed the incident and police concocted a false case against the appellants, at the instance of these witnesses on account of inimical term with them. It is also submitted that all the eyewitnesses are interested and partisan and First Information Report was brought into existence in ante date and time, therefore, conviction of the appellants is not sustainable. 6. In oppugnation, learned counsel for the State had supported the impugned judgment and finding arrived at by learned trial Court. 7. Having heard the learned counsel for the parties and on perusal of the entire record, it culled out that conviction of the appellants is mainly based on the testimony of eyewitnesses PW-2 Ranchhod, PW-3 Bhanvar, PW-4 Hakam Singh and medical evidence of PW-12 autopsy surgeon Dr. N. K. Singhal, who proved postmortem report Ex.P/28. 8. The main question for consideration by us is, whether these three eyewitnesses, in fact, had witnessed the incident or not? 9. PW-2 Ranchhod is the uncle of deceased and deposed that on the date of incident in the night at about 8-8:30 p.m. he was going towards Panchayat building from his house, at that juncture he saw deceased Hariram coming and present between village school and Panchayat building and appellants were assaulting him except appellant Dayaram and Bharat. According to him appellants Badri, Satyanarayan and Kailash were having Dharia and Farsis respectively, whereas other appellants were using Lathis. He shouted and also switched on battery, at that moment appellants delivered threat that they will kill the person who will interfere and at the time of incident witnesses PW-4 Hakam Singh, Bhagwan and Mohan reached on the spot; they all took the deceased in tractor to the police station and he lodged the report (Ex.P/2). He shouted and also switched on battery, at that moment appellants delivered threat that they will kill the person who will interfere and at the time of incident witnesses PW-4 Hakam Singh, Bhagwan and Mohan reached on the spot; they all took the deceased in tractor to the police station and he lodged the report (Ex.P/2). In cross-examination, he admitted that deceased was his nephew, whereas Hakam Singh and Vikram Singh are also his nephews. He has also admitted that place of incident was situated outside the village. In paragraph 12 and 13 he has deposed that they reached in the police station at 11-12 p.m. in the night but his report was recorded in the morning at 4:00 a.m. and SHO directed them to stay in the police station in the night and he will record the report in the morning at 4:00 a.m. Further say of this witness is that SHO took his signature on 3-4 blank papers. In paragraph-16 the say of this witness is that he went to police station on the date of incident and alone returned back on the next day at 9-10 a.m. and police reached in the village second day of the incident in the evening between 5 and 6 p.m., thereafter on call by village watchman, reached on the spot. It is clear from the statement of this witness that FIR was recorded in the morning at 4:00 a.m., whereas its scribe PW-19 Shri Tomar has denied the defence suggestion in paragraph-58 of his deposition that FIR (Ex.P/2) was not recorded on the date and time as mentioned therein. In the FIR date and time of recording is mentioned 26-11-1999 00.15 hour, which is contradictory to the statement of its author PW-2 Ranchhod. 10. PW-4 eyewitness Hakam Singh, brother of deceased, has deposed that on the date and time of incident he followed deceased Hariram, who was going to the house of appellant Badrilal for demanding Rs. 30,000/-, and saw that all the appellants started assaulting Hariram by the weapons Farsi and Lathis. 10. PW-4 eyewitness Hakam Singh, brother of deceased, has deposed that on the date and time of incident he followed deceased Hariram, who was going to the house of appellant Badrilal for demanding Rs. 30,000/-, and saw that all the appellants started assaulting Hariram by the weapons Farsi and Lathis. At that moment PW-2 Ranchhod, PW-11 Mohandas, PW-3 Bhanvar and his younger brother Vikram Singh (not examined) were also present on the spot and they all took the deceased in tractor to police station accompanied by Badri, PW-2 Ranchhod, Vikram Singh and PW-1 Mohan to police station, where he lodged the report but no such report has been filed by the prosecution. There is only one report Ex.P/2 said to have been lodged by PW-2 Ranchhod. He has also deposed that one month prior to instant incident there was quarrel between his brother deceased Hariram with accused persons and they all assaulted on account of ill-will due to Rs.30,000/-. In cross-examination the say of this witness is that police reached on the spot in the same night and he was in the village and his statement was recorded by the police on third day of the incident, but according to the statement of Hakam Singh, he lodged the report which is contradicted by PW-2 Ranchhod, who proved his FIR (Ex.P/2). In view of the statement of Hakam Singh a legitimate conclusion can be drawn that report lodged by him, has been suppressed by the police because same was not in the line of the prosecution case. If Hakam Singh has not lodged any report, there was no reason for him to say like this and there is no re-examination by the prosecution to clarify the ambiguity whether report lodged by him or his uncle (PW-2) Ranchhod. 11. The statement of Hakam Singh is contradicted by PW-3 Bhanvar on material particulars. Bhanvar has deposed in paragraph-14 that when he was returning back from his house, deceased Hariram was going ahead of him and was being started assaulting but he did not raise any cry. Further say of this witness is that since Badri, Ranchhod, Lakhan Singh, Vikram Singh and Hakam Singh reached on the spot, after assault was opened and he did not raise any cry. 12. Each eyewitness has deposed that first he reached on the spot, thereafter on his shouting other witnesses reached on the spot. Further say of this witness is that since Badri, Ranchhod, Lakhan Singh, Vikram Singh and Hakam Singh reached on the spot, after assault was opened and he did not raise any cry. 12. Each eyewitness has deposed that first he reached on the spot, thereafter on his shouting other witnesses reached on the spot. This version of all these three witnesses is contradictory and creates doubt about their presence and witnessing the incident on the spot. 13. PW-3 Bhanvar has deposed that from police station he went to hospital with dead body of deceased Hariram and in the same night police brought him to the village and he remained with the police for whole night. He returned back to his house after performance of funeral of deceased. PW-4 Hakam Singh has also stated that when they reached to the police station in the night, police visited their village in the same night and he was in the village and his statement was recorded by the police when he returned back after performance of postmortem of dead body on the next day from Mehidpur. In paragraph-13 of the cross-examination Hakam Singh has been contradicted with his case diary statement (Ex.D/3), wherein it is not mentioned that he followed Hariram just after 1-2 minute for taking money from Badri and Kailash and he failed to explain this material contradiction. He has denied the case diary statement at 'A' to 'A' place that he reached on the spot after hearing shouting coming from the side of Panchayat Bhavan. Regarding presence of this witness on the spot original prosecution case was that he reached on the spot after hearing the shouting but same has been denied by him and he has given altogether a new story about his presence on the spot and witnessing the incident, that he followed the deceased who was going to the house of appellant Badri for collecting money. In paragraph-18, he has admitted that after incident they had not gone inside the village to call any person. 14. In paragraph-18, he has admitted that after incident they had not gone inside the village to call any person. 14. PW-19 Investigating Officer Shri Tomar has admitted in paragraph-49 that in the night of the incident at 1:00 a.m. he went from police station to village Mahudi and inspected the spot, thereafter made a search of the accused persons and returned back at 5:30 a.m. He has also admitted in paragraph-50 that he was accompanied by PW-2 Ranchhod but PW-2 Ranchhod has nowhere stated about going to village after lodging the report in the same night with Shri Tomar. Shri Tomar has also deposed that after returning from the village he recorded the statement of witnesses Mohan, Bhanvar Bagri, Hakam Singh and Ram Singh but all these proceedings he had not recorded in daily diary, which he ought to have mentioned. Shri Tomar failed to explain as to why he had not recorded the statements of the eyewitnesses immediately when all were present in the police station. 15. It is strange enough that Shri Tomar in the night at 1:00 a.m. reached in the village and did not take any effective steps for investigation as well as arrest of the appellants. There is no material adduced by him to show that he had gone to the houses of the appellants to arrest them. The statement of Ranchhod that his report was recorded in the morning at 4:00 a.m., find support from the statement of Hakam Singh, Bhanvar and Investigating Officer, and a reasonable inference can be drawn that when these witnesses along with dead body of deceased, were in the police station; their report was not recorded and Shri Tomar in the same night visited the village and spot and after returning from the village recorded the FIR in ante date and time. On the basis of this serious infirmity in the prosecution case, it can be legitimately held that in fact all the, three eyewitnesses had not witnessed the incident and after knowing about the incident reached on the spot and took the dead body to the police station, and Investigating Officer Shri Tomar reached to the village in the night with one person, thereafter on the basis of previous incident and inimical term on account of dispute over Rs.30,000/-, a report was concocted against almost all the family members. PW-3 Bhanvar, in paragraph-29, has admitted that all the appellants belong to one family. 16. All the three eyewitnesses have given contradictory statements about their presence on the spot. Each one has stated that he reached on the spot first in point of time, thereafter other reached on the spot after hearing about the incident and shouting. 17. The genuineness of the FIR is also doubtful in view of the statement of PW-4 Hakam Singh, who has specifically stated that he lodged the report in the police station but no such report has been filed by the prosecution and this situation has not been explained. 18. Investigating Officer Shri Tomar has admitted in paragraph-32 of his statement that registration of First Information Report is always done on the basis of entry in daily diary but in First Information Report (Ex.P/2) there is no mention about number of daily diary in column-3 Clause 'C'. It appears that this procedure is prescribed for check and counter-check regarding date and time of registration of First Information Report and it appears that both the procedures is required to follow one after another. When First Information Report is written in prescribed form as per provision under section 154 of the Criminal Procedure Code, immediately thereafter summary of the contents of FIR is required to be mentioned in daily diary and the said number of daily diary is required to be mentioned in column No. 3(C) of the FIR. Non mention of number is also throwing doubt over the genuineness of the FIR. 19. Shri Tomar has also admitted in paragraphs-32 and 33 about procedure of registration of First Information Report on the basis of number of entry in daily diary and he has also stated that FIR is always prepared in three parts by using carbon, out of which original copy is to be filed along with the charge- sheet; one carbon copy is to be sent to the concerned Magistrate immediately as per provision under section 157 of the Criminal Procedure Code and one carbon copy remains in the police station in the book of First Information Report but in the record which he brought in the Court, third copy was not available. In paragraph-34, he has failed to explain and give particular date and time regarding sending of copy of the FIR to the concerned Magistrate. In paragraph-34, he has failed to explain and give particular date and time regarding sending of copy of the FIR to the concerned Magistrate. Legislation has prescribed provision under section 157 of the Criminal Procedure Code for sending the copy of the FIR forthwith with a view to check the authenticity of the First Information Report but in this case prosecution has failed to establish sending of copy of the FIR to the concerned Magistrate. 20. Supreme Court in case of Ramesh Baburao Devaskar and others vs. State of Maharashtra, 2009(1) SCC (Cri.) 212 has considered the importance of First Information Report and discussed the provision under section 157 of the Criminal Procedure Code in following words in paragraph-20 :- "The Code of Criminal Procedure provides for certain internal and external checks; one of them being the receipt of a copy of the first information report by the Magistrate concerned. It is not in dispute that in a grave case of this nature, the copy of the first information report was received by the Magistrate four days later. No explanation has been offered therefor. Section 157, Criminal Procedure Code mandates that the first information report should be sent to the nearest Magistrate within a period of 24 hours. It has not been disputed that the occurrence took place near the district headquarters. There cannot be any reason whatsoever as to why the first information report was sent after four days." [Also see Bir Singh and others vs. State of U. P., AIR 1978 SC Page 59] 21. In the instant case prosecution has miserably failed to establish the compliance of section 157 of the Criminal Procedure Code, as discussed hereinabove. 22. In Marudanal Augusti vs. State of Kerala, AIR 1980 SC 638 the Supreme Court has observed as under regarding First Information Report :- "The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the F.I.R. is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without their being anything to check the authenticity of their evidence." 23. In the instant case it is crystal clear that FIR (Ex.P/2) was not recorded on the date and time as shown by the prosecution and there is absolutely no material to check the authenticity of the evidence of eyewitnesses, who are interested and partisan. 24. There is absolutely no dispute that statement of all the eyewitnesses were recorded on the next day and also on third day of the incident and investigating officer has failed to explain the delay in not recording the statements of all the eyewitnesses immediately, though they were present in the night of the incident in the police station. The Supreme Court has considered this aspect in case of Ganesh Bhavan Patel and another vs. State of Maharashtra, AIR 1979 SC 135 , the relevant paragraph is abstracted hereinbelow :- Delay of a few hours, simpliciter, in recording the statements of eyewitnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. Thus under the facts and circumstances of the case delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses. 25. There is yet another glaring deficiency in the prosecution case, which throws considerable amount of doubt about witnessing the incident by above mentioned three eyewitnesses that is PW-2 Ranchhod who has deposed that he lit battery torch to identify the assailants and at the same time he has also stated that there was light of three electric bulbs at three places i.e. outside the house of one Bherudas, Panchayat Bhavan and outside the house of Nagmaharaj. His this statement is completely missing in his case diary statement. His this statement is completely missing in his case diary statement. In paragraph-27 he has stated that at the time of preparation of spot map (Ex.P/5), he has pointed out presence of electric bulb on the spot and if same is not mentioned in the spot map (Ex.P/5); he cannot assign any reason. On this aspect this witness has given contradictory statement; at one place he has deposed that he switched on battery for witnessing the incident and if he would have not used the battery, he could not witness the incident. At the same time he has given voluntary statement that on the spot there was light of three electric bulbs. The fact of presence of three electric bulbs has been introduced by this witness for the first time in Court statement and for such an important and omission, which amount to contradiction, he has failed to assign any cogent and reliable reason. PW-2 Ranchhod, in paragraph-22, has also deposed that in the night of the incident he had not gone to the house of any villager and also not disclosed about the incident to anybody. It is also stated by him that he went along with the dead body in the night to the police station, thereafter he was brought in the village from the police station in the night by police and again taken back in the same night to the police station. This kind of statement has been given by all the three eyewitnesses and prosecution has failed to explain as to why in the same night investigating officer reached in the village along with these three witnesses and taken them back to the police station but their statements were not recorded. All these situations are pointing out towards the fact that, in fact, these witnesses had not witnessed the incident and reached in the police station in the night at about 11:00 p.m., thereafter again returned back with the investigating officer Shri Tomar in the village and after expending some time, went back to the police station and concocted a case by writing FIR (Ex.P/2) in the morning at 4:00 a.m., against the appellants on the basis of suspicion on account of previous enmity. 26. In view of the foregoing discussion, we are of the considered view that conviction and sentence of the appellants are not sustainable, hence this appeal is allowed. Appellants are acquitted. 26. In view of the foregoing discussion, we are of the considered view that conviction and sentence of the appellants are not sustainable, hence this appeal is allowed. Appellants are acquitted. Appellant No. 1 Satyanarayan, No. 8 Badrilal and No. 9 Kailash are in jail, the learned trial Court is directed to release them forthwith, if not wanted in any other criminal case. Rest of the appellants No. 2 to 7 (Ramprasad, Ghanshyam, Lakshminarayan, Ambaram, Bharatlal and Dayaram) are on bail, their bail bonds and surety bonds stand discharged.