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Madhya Pradesh High Court · body

2009 DIGILAW 626 (MP)

Nandsingh s/o Bhanwarsingh v. State Of M. P.

2009-05-11

L.KOCHAR, MANJUSHA P.NAMJOSHI

body2009
JUDGMENT : S. L. KOCHAR, J. Both the appeals are arising out of one common judgment, therefore, decided by this common judgment. 2. The appellants Nandsingh, Narayansingh and Kamalsingh have preferred Cr. A. No. 1342/99 against their conviction under section 302/34 of the Indian Penal Code to undergo life imprisonment with a fine of Rs. 2,000/- each and in default of payment of fine the appellants will have to suffer 6 month's additional R.I. and appellant/State has preferred Cr.A.No. 271/00 against the judgment of acquittal of respondent dated 29-9-1999 passed by the learned Additional Sessions Judge, Rajgarh (Biora). 3. Briefly stated the prosecution case as put forth before the trial Court is that complainant Roopji (PW-7) and his father deceased Poorji were having land dispute with Rajpoot residing in same village Sadiya Kuwa. On 12-11-1996, in the morning at 8.00 a.m. deceased Poorji along with his grand son eye witness PW-2 Devisingh had gone to the field and their other family members were in the house. At about 8.00 a.m., Devisingh came running to house and told to family members that in the field Poorji was being assaulted by the appellants and acquitted co-accused Palsingh. PW-7 Roopji and his son Mangilal immediately rushed to the field and from some distance saw that all the 4 accused were running away and appellant Nandsingh was having axe whereas appellant Narayansingh was having lathi. They reached in the field of Poorji and saw that Poorji was lying in the field and there were injuries on his head and ear. Blood was oozing from the injuries. They found deceased in dead condition. Eye witness Devisingh told them that appellants Nandsingh by axe and Narayansingh by lathi and other accused assaulted the deceased by stones. Roopji, along with PW-4 Madansingh, Village Chaukidar, who was his relative, went to Police Station and Roopji lodged the First Information Report (Ex.P/10) at 12.10 p.m. (in the noon). Police stepped into investigation. PW-11 Station House Officer Shri Sharma prepared inquest report of the dead body (Ex.P/4) and through seizure memo Ex.P/5 seized blood stained and controlled earth from the spot. He also prepared spot map (Ex.P/7). Dead body was sent for post-mortem examination, which was conducted by PW-3 Dr. Omprakash Gupta. Post-mortem report is Ex.P/3. Appellants were arrested and on their disclosure statements from Nandsingh axe and from Narayansingh lathi were seized. He also prepared spot map (Ex.P/7). Dead body was sent for post-mortem examination, which was conducted by PW-3 Dr. Omprakash Gupta. Post-mortem report is Ex.P/3. Appellants were arrested and on their disclosure statements from Nandsingh axe and from Narayansingh lathi were seized. Seized articles were sent to Forensic Science Laboratory and its report is Ex.P/19 and P/20. On due investigation, charge-sheet was filed against 4 accused for commission of the offence under section 302/34 of the Indian Penal Code. 4. Accused denied their complicity with the offence and examined two witnesses in defence. Their defence was of false implication and DW-1 C. K. Mode, Jail Superintendent, District Jail Rajgarh proved Ex.D/2 inland letter sent addressing to accused Nandsingh that they were falsely implicated on account of land dispute and if they will give them two beegha land, they will favour the accused in the Court. DW-2 Head Constable Rajmangalsingh was examined for non-compliance of provision of section 157 of the Criminal Procedure Code regarding sending of copy of the First Information Report. Learned trial Court did not find any substance in the defence version and relied on prosecution evidence while acquitting co-accused Palsingh convicted the appellants as described here-in-above. 5. We have heard learned counsel for the parties and also perused the entire record carefully. It borne out from the record that conviction of the appellants is mainly based on testimony of solitary eye witness PW-2 Devisingh son of PW-7 Roopji, who lodged the report and grandson of deceased Poorji. The main question for determination before us is whether PW-2 Devisingh was actually witnessed the incident or not? 6. PW-2 Devisingh has deposed that on the date of incident in the morning at 8.00 a.m. he and Poorji had gone to field, he started working in the field and Poorji was cutting the grass. Appellant Narayansingh and Nandsingh reached there along with Balusingh and Kamalsingh. Narayansingh and Nandsingh abused Poorji which was objected by Poorji whereupon Narayansingh struck 2-3 lathi blows on the person of Poorji and when Poorji started running Nandsingh dealt 2-3 axe blows on his head. Poorji sustained injury on the head and fell down in the field. According to Devisingh, when Poorji fell down again Nandsingh caused injury by axe on his head and Narayansingh struck lathi blow on waist, whereas Kamalsingh and Balusingh pelted stones causing injury on the head of Poorji. Poorji sustained injury on the head and fell down in the field. According to Devisingh, when Poorji fell down again Nandsingh caused injury by axe on his head and Narayansingh struck lathi blow on waist, whereas Kamalsingh and Balusingh pelted stones causing injury on the head of Poorji. He witnessed the incident and immediately went to his house and disclosed to his uncle and father named Roopji, Shivsingh, Jagannath and Mangilal. They all reached in the field immediately and found deceased lying in the field and all the appellants were running away, Poorji had already died. PW-7 Roopji and Watchman Madansingh went to the Police Station and lodged the report. He has also stated that they were having land dispute with the accused and accused wanted to grab their land whereas land was in possession of Poorji, and that he could identify the axe and lathi but when seized axe (article-A) and lathi (article-B) were shown to him he answered that these were not the weapons used by the appellants and the weapons which were used were different and bigger than the seized weapons. In cross-examination paragraph-8, he has admitted that the field in which he was working and Poorji was cutting the grass was in possession of the appellants and case for the said land was pending in the Court. The land was lying barren prior to the date of incident. Grass was being taken from the land by the appellants. He has also stated in paragraph 9 that silently he was standing at the distance of 20 to 25 feet and witnessed the incident. He was properly seen by the accused that he was witnessing the incident but accused did not talk with him and he also did not try to call the persons of adjacent field because at that time nobody was there, he had also not gone to see whether there was anybody and he did not call anybody. He has also stated that in the field stones were lying but he did not pelt stones on appellants and remained present for half an hour in the field when deceased was being assaulted by Narayansingh and Nandsingh. In paragraph 11, he has deposed that he did not give any statement to police before 20 to 25 days of the incident. It is not the case of delay in recording statement by the police. In paragraph 11, he has deposed that he did not give any statement to police before 20 to 25 days of the incident. It is not the case of delay in recording statement by the police. According to his police statement (Ex.D/2), it was recorded on the same day but Devisingh has stated clearly that he did not disclose about witnessing the incident to police prior to 20 to 25 days of the incident meaning thereby he disowned his statement Ex.D/2 recorded by the police. In paragraph 12, he has again admitted that the incident occurred in the field of Nandsingh. The statement of this witness is fragiled because of his positive admission in paragraph 13 that on the date of recording of his evidence in Court he was read over his police statement and he also read the same. The Division Bench of this High Court in Ramvilas Ramdin and others vs. State of M. P., 1984 MPLJ 492 relying on Privy Council judgment rendered in the case of Zahiruddin vs. Emperor, AIR 1941 Privy Council Page No. 75 and Kanbi Vaghji Savji vs. State of Gujarat, 1968 Cri.L.J. Page 54 has held in Para 15 as under :- "that the statement made by the witness to the police during the course of investigation was made use of in contravention of section 162, Criminal Procedure Code. Nobody can say what the witness would have said had his memory not been refreshed in that manner before he entered the witness-box. It does not make any difference that the statement was narrated to him not when he was in the witness-box but shortly before entering the witness-box because the fact remains that it was narrated to him for the purpose of giving evidence at the trial. That is tantamount to making use of statement at the trial." 7. The testimony of solitary, interested and partisan witness Devisingh is also not reliable because of his contradictory statement on material particulars with case diary statement as well as medical evidence. He failed to give any reason as to why specific overt act of Nandsingh causing 3 axe blows on the head of deceased after his falling down on the ground is missing in police statement (Ex.D/2). He failed to give any reason as to why specific overt act of Nandsingh causing 3 axe blows on the head of deceased after his falling down on the ground is missing in police statement (Ex.D/2). In cross-examination, he stated that there was no accused having name Balusingh and he did not name Balusingh in examination-in-chief at "A to A" and "B to B" Part. In Ex.D/2 overt act of Narayansingh causing 2-3 lathi blows on his back portion and 2-3 axe blows is also not mentioned and this omission amounts to contradiction for which witness failed to assign any reason. He has also admitted that from the field his house where PW-7 Roopji and PW-8 Shivsingh his father and uncle were residing was at the distance of 1 Km. and after witnessing entire incident for half an hour he went to his house disclosed about incident to his father and uncle thereafter they all reached on the spot and they saw the appellants running away from the scene of occurrence. This statement of Devisingh is not corroborated by PW-8 Shivsingh. Shivsingh has specifically stated in paragraph 2 that he had not seen the accused on or near the spot and he had seen only Poorji in injured condition and he has also stated in paragraph 8 that they were having inimical terms with the accused and near the dead body Devisingh did not disclose about axe and lathis and he had also not enquired anything from Devisingh. He was confronted with his case diary statement Ex.P/11 (learned trial Court should have marked it Ex.D/11 because defence has confronted Shivsingh with his police statement) and he failed to give explanation about disclosure, of names of the appellant and their specific overt act missing in his case diary statement to others. 8. A serious jolt has been given to the prosecution case by PW-4 Village Chaukidar and relative of complainant party Madansingh, who has nowhere stated in his examination-in-chief that Devisingh was the eye witness of the incident and in paragraph 4 he has stated that Roopji came to him in the morning at 8.00 to 8.30 a.m. and told him that his father was lying in the field and he did not disclose anybody's name, thereafter they reached on the spot and saw Poorji lying in the field in dead condition. There also Roopji did not disclose the name of assailant and they went to Police Station where Roopji reached near the Station House Officer and again between 8 to 8.10 p.m. along with the police they reached in the village and on the spot. The Court has put question in which he replied that while going to Police Station on the way Roopji disclosed the name of accused persons who killed his father. This statement of Madansingh is missing in his case diary statement (Ex.D/2) and he failed to account for this material omission which amounts to contradiction. Madansingh has also admitted in paragraph 13 that when they reached in the Police Station appellant Nandsingh was already sitting near the Station House Officer silently. Looking to the statement of Madansingh, a Village Choukidar, it is clear that upto that time it was not known that Devisingh witnessed the incident. 9. In view of the aforesaid evidence, we are of the view that a solitary eye witness Devisingh is not a reliable witness because of his abnormal conduct, material omissions and contradictions between his case diary statement and the Court statement reading over the case diary statement prior to entering into dock for giving statement and non- corroboration of specific overt act of some of the appellants by the medical evidence vis-a-vis 20-25 days delay in giving statement to police as eye witness. 10. Resultantly, this appeal is allowed on the basis of foregoing discussion. The conviction and sentence of all the 3 appellants (Nandsingh, Narayansingh and Kamalsingh) as passed by the trial Court are hereby set aside. Appellants are on bail. Their bail bond and surety bond stand discharged. We do not find any substance in State Cr.A.No. 271/2000 against the acquittal of respondent Palsingh whose name has, not at all, been mentioned in the Court by solitary eye witness Devisingh, therefore, it is dismissed. 11. The office is directed to send the copy of this judgment along with the record to the trial Court. 12. The original judgment be placed in the record of Cr.A. 1342/1999 and a copy thereof be placed in the record of Cr.A.No. 271/2000.