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Madhya Pradesh High Court · body

2009 DIGILAW 990 (MP)

Shiva @ Shivlal v. State of M. P.

2009-08-18

M.P.NAMJOSHI, S.L.KOCHAR

body2009
JUDGMENT : S.L. Kochar , J.: - Boththe appeals are arising out of one common judgment, therefore, decided by thiscommon judgment. 2.The appellants Shiva @ Shivlal and Bunty @ Darbarsingh preferred Cr.A . No. 809/03 and appellants Karansingh , Ratan , Ramlal and Kishan have preferred Cr.A . No.810/03 under Section 374 of the Cr.PC against thejudgment dated 21-8-2003 passed by the learned 10th Additional Sessions Judge, Indore in S.T. No. 129/02 whereby appellants have beenconvicted under Section 148 of the IPC and sentenced to undergo R.I. for 2years with fine of Rs . 1,000/- and in default ofpayment of fine 3 months RI also under Section 302/149 of the IPC sentenced toundergo imprisonment for life with fine of Rs .2,000/-and in default of payment of fine additional RI for 6 monthsrespectively. All the substantive jail sentences have been directed to runconcurrently. 3.Briefly stated the prosecution case as unfolded before the Trial Court is thaton 9-12-2001 , in the nightat 9.30 p.m. , complainant AbdulWahid (P.W. 10), father of deceased Shahid wasfollowing, Tempo Trax , on motorcycle wherein his son Shahid was going. Shahid stoppedTempo Trax in front of beer shop situated at Depalpur Ingoriya Road . Shahid purchased a beer bottle and coming back fromthe shop at that moment appellants having knife and broken beer bottle reachedover there and started assaulting Shahid by knife andbroken glass bottle. Abdul Wahid raised alarm to save his son and afterstopping motorcycle rushed towards his son to save him. Appellants afterassaulting deceased fled away on motorcycle. Abdul Wahid reached near his son,who was lying in pool of blood and found him in dead condition. Abdul Wahid(P.W. 10) lodged the FIR ( Exh . P-23)in the Police Station Gautampura . Tehsil Depalpur , District Indore recorded by Sub Inspector, Lalaram Ahirwar (P.W. 12). After recording FIR, SI Ahirwar (P.W. 12) sent copy of the same to Control Room andconcerned Magistrate. Shri Ahirwar reached on the spot and prepared spot map ( Exh . P-24) at the instance of Abdul Wahid (P.W. 10). On the nextdate, i.e., 10-12-2001 Shri Ahirwar prepared inquestreport ( Exh . P-5) and sent the dead body forpost-mortem examination, with requisition ( Exh . P-26) for post-mortem examination, which was conducted by Dr. P.C. Kashyap (P.W. 3). Post-mortem report is Exh . P-3. P-24) at the instance of Abdul Wahid (P.W. 10). On the nextdate, i.e., 10-12-2001 Shri Ahirwar prepared inquestreport ( Exh . P-5) and sent the dead body forpost-mortem examination, with requisition ( Exh . P-26) for post-mortem examination, which was conducted by Dr. P.C. Kashyap (P.W. 3). Post-mortem report is Exh . P-3. From the spot bloodstained and controlled earth, one comb, one pair black chappal ,one wrist watch, two bottles containing blood spots were seized through seizurememo ( Exh . P-20) in presence of thewitnesses. P.W. 15, the then SHO Shri Shivpalsingh Chouhan got preparedthe spot map from Patwari and took the appellants incustody thereof. On the basis of disclosure statement as per provision underSection 27 of the Evidence Act, Shri Shivpalsingh Chouhan recoveredthe weapons at the instance of the appellants. Clothes of the deceased werealso seized and all seized articles were sent to Forensic Science Laboratoryfor chemical examination and its report is Exh . P-31. Some articles were sent to Serologist and its reportis Exh . P-34. On completionof investigation appellants were charge-sheeted for commission of offence underSections 148,302/149 of the IPC. 4.Appellants refuted the charges and pleaded innocence. They have not examinedany witness in defence , whereas prosecution hasexamined as many as 16 witnesses and adduced 34 documents to prove its case. Learned Trial Court finding the appellants guilty, convicted andsentenced them as indicated hereinabove. 5.We have heard learned Counsel for the parties and also perused the entirerecord of the Trial Court. LearnedCounsel for the appellants has argued that FIR ( Exh .P-23) was not recorded in the same night as shown by Sub Inspector Lalaram Ahirwar (P.W. 12) and thesame was prepared later on. In support of this submission learned Counsel haspointed out several defects and circumstances which will be dealt with in thefollowing paragraphs. It is also submitted that conviction is based on thesolitary testimony of related and partisan witnesses father of deceased Abdul Wahid (P.W. 10), who cannot be relied upon in thefacts and circumstances of the instant case. 6.On the other hand, learned Counsel for the State has supported the impugnedjudgment and finding arrived at by the learned Trial Court. It is also submitted that conviction is based on thesolitary testimony of related and partisan witnesses father of deceased Abdul Wahid (P.W. 10), who cannot be relied upon in thefacts and circumstances of the instant case. 6.On the other hand, learned Counsel for the State has supported the impugnedjudgment and finding arrived at by the learned Trial Court. 7.The core question for determination by us is whether FIR ( Exh .P-23) is a concocted piece of evidence and brought into existence later on andnot as shown by the prosecution as well as conviction is sustainable on thebasis of solitary eye-witness Abdul Wahid (P.W. 10), the father of deceased ? 8.FIR ( Exh . P-23) was lodged by Abdul Wahid (P.W. 10)immediately after the incident at 9.50 p.m. whereas incident occurred in the same night at 9.30 p.m. on 9-12-2001 .The distance of the Police Station was 1 km. FIR ( Exh .P-23) was recorded by Sub Inspector Shri Ahinvar (P.W. 12). Shri Ahirwar has stated that after recording FIR, copy thereofwas immediately sent on the next day morning, i.e., 10-12-2001. He has notfiled any documentary evidence to establish the fact of sending and receivingthe copy of FIR. The appellants had filed carbon copy of the FIR ( Exh . D-4) wherein it is shown that copywas received by the concerned Magistrate of Depalpur on 11-12-2001 at 2.30 p.m. When Shri Ahirwar was shown document ( Exh . D-4), he replied thatprobably concerned Constable did not produce the FIR immediately and causedelay or there could be holiday on the next day. 9.Learned Counsel for the appellant has pointed out that 10-12-2001 was Monday, which is clear from theFIR ( Exh . P-23) wherein the day ofincident was Sunday. He has also pointed out M.P. Law Times 2001 PageNos. 3, 4 and 5 about notification of holiday of High Court and Sub-ordinateCourts in Madhya Pradesh and it is clear from this notification that 10th and 11th December, 2001 was not theholiday. In this view of the matter, it is clear that copy of the FIR incompliance with provision of Section 157 of the Cr.PC was not sent forthwith and unexplained delay has been caused by theInvestigating Agency to send the same. In this view of the matter, it is clear that copy of the FIR incompliance with provision of Section 157 of the Cr.PC was not sent forthwith and unexplained delay has been caused by theInvestigating Agency to send the same. This is one circumstance which can beconsidered in favour of the arguments advanced bylearned Counsel to establish that FIR was a concocted piece of evidence andbrought into existence later on after consultation and giving thought over theissue. Supreme Court in case of State of Rajasthan Vs. Tejasingh and others, 2001 SCC ( Cri .) PageNo. 439, has considered the importance of provisions under Section 157 of Cr.PC and held that unexplained inordinate delay in sendingcopy of the FIR to the concerned Magistrate is fatal to the prosecution. 10.P.W. 10 has specifically stated that spot map ( Exh .P-24) was prepared at his instance and he signed on the same. SI Lalaram Ahirwar (P.W. 12) hasalso proved the spot map ( Exh . P- 24) prepared andsigned by him. In cross-examination Paragraph 19, he denied the presence ofdead body of deceased on the spot at the time of preparation of spot map ( Exh . P-24) but when confronted withcontents of spot map ( Exh . P-24) "C toC" part written by him he admitted the presence of dead body on the spotat the time of preparation of the map. Spot map was prepared on 10-12-2001 at 9.30 a.m. and thereafter inquest report ( Exh . P-6) was prepared and dead body was sent forpost-mortem examination to the hospital. In post-mortem report ( Exh . P-3) the time of receiving dead body is mentioned 8.00 a.m. on 10-12-2001 and post-mortem was also commenced at the sametime by Dr. P.C. Kashyap (P.W. 3). In post-mortemrequisition form ( Exh . P-26) sent along with deadbody the time of sending is also mentioned 8.00 a.m. Body was taken to thehospital by Constable Shankarlal (P.W. 14) who provedrequisition ( Exh . P-26). Shri Lalaram Ahirwar (P.W. 12) has also proved post-mortem requisition ( Exh . P-26) and his signature at "A to A" part. In post-mortemrequisition form ( Exh . P-26) sent along with deadbody the time of sending is also mentioned 8.00 a.m. Body was taken to thehospital by Constable Shankarlal (P.W. 14) who provedrequisition ( Exh . P-26). Shri Lalaram Ahirwar (P.W. 12) has also proved post-mortem requisition ( Exh . P-26) and his signature at "A to A" part. Inthis document also date and time is also mentioned 10-12-2001 at 8.00 a.m. Timeof preparation of spot map is later than the time of sending dead body from thespot to hospital for post-mortem is showing the fact that all these documentswere not prepared according to steps taken during the course of investigationin time to time, then and there, and later on times were mentioned because ofwhich fault was committed by the Investigating Officer. The prosecution hasfailed to explain this serious discrepancy about timing. 11. Shri Ahirwar (P.W. 12) hasalso proved seizure of blood stained and controlled earth, comb, one pair black colour leather chappal , onewrist watch, two broken beer bottles lying near dead body of deceased videseizure memo ( Exh . P-20). This seizure was effected in the intervening night of 9-12-2001 and 10-12-2001 at 12.10a.m. (00.10 hours). Surprisingly, if these articles were seized in the interveningnight then how all these articles were also present and seen at the time ofpreparation of spot map on 10-12-2001 at 9.30 am All these facts andcircumstances of the case are showing that there was manipulation andconcoction in the investigation and documents were prepared in ante date andtime. 12.Constable Shankarlal (P.W. 14) has also stated thaton 10-12-2001 , in themorning at 8.00 a.m. , he had taken thedead body for post-mortem examination with requisition ( Exh . P-26). 13.SHO Shri Shivpalsingh Chouhan (P.W. 15) has admitted overwriting in severaldocuments regarding arrest, memorandum, search andseizure vide Exhs . P-28, P-7, P-10, P-13, P-19, P-17,P-14, P-11 and P-8 regarding crime number and gave explanation that because ofslip of pen at the time of writing the overwriting occurred and same was bonafide . 14.We have perused these documents and it is clear that at the first stroke someother crime number was mentioned which was later on corrected or changedbecause of which there is overwriting on all these documents. 14.We have perused these documents and it is clear that at the first stroke someother crime number was mentioned which was later on corrected or changedbecause of which there is overwriting on all these documents. If FIR wasrecorded as shown by the prosecution on correct time and date, followed byinvestigation, then there was no reason for commission of above mentionedmistakes about mentioning of time in spot map ( Exh .P-24), post-mortem report ( Exh . P-3),medical requisition ( Exh . P-26),seizure memo ( Exh . P-20) andother documents as mentioned hereinabove. Shri Ahirwar (P.W. 12) has deposed in Paragraph 15 of hisdeposition that in serious offences after recording of FIR short description ofthe same is being written in daily diary and thereafter number of daily diaryis also to be mentioned in FIR for which specific column is given No. 3 (C),but in FIR ( Exh . P-23) daily diary number is notmentioned and for this omission he has failed to give any explanation. If FIRwas recorded as shown, there was no reason why the summary could not berecorded immediately as per rules in daily diary and number whereof bementioned in FIR. Before the learned Trial Court as well as before this Courtit is pointed out that all these loop holes and lacuna are available because FIRwas not recorded on the date and time as shown and prepared later on because ofwhich daily diary number could not be given. This situation could have beencleared by prosecution or defence or by the learnedTrial Court by calling the relevant daily diary book about entry of summary ofFIR of the instant case ( Exh . P-23) and the sameposition would have been cleared about concoction of FIR but none had takenpain to do so. 15.The Supreme Court in catena of its judgment has pointed out importance of FIRand held that "the entire fabric of the prosecution case would collapse ifthe FIR is held to be fabricated or brought into existence long after theoccurrence and any number of witnesses could be added without there beinganything to check authenticity of their evidence". ( See: Marudanal Augusti Vs. State of Kerala , AIR 1980 SC Page 638). ( See: Marudanal Augusti Vs. State of Kerala , AIR 1980 SC Page 638). 16.The authenticity of the FIR has great bearing in criminal cases and same can bechecked by sending of the copy of FIR to the Superior Police Officials andconcerned Magistrate in accordance with the provision of Section 157 of Cr.PC as well as police regulations but in the instant caseas pointed out hereinabove copy of the FIR was sent after two days and delayhas not been explained by the prosecution. 17.The conviction of the appellants is based on the solitary testimony of AbdulWahid (P.W. 10), father of the deceased who can be defined as interested andpartisan witness because he has stated that he and his son has long standinginimical terms with the appellants and they were facing prosecution forassaulting appellant Karansingh Gujar (See : Para 12). Abdul Wahid has also admitted about his criminal antecedentsand his prosecution in several cases including offences under Sections 307, 302of the IPC and Section 25 of the Arms Act and several other offences. ( See : Paragraphs 11, 12, 13, 14, 15 and 16 of hisstatement). He has been cross-examined in detail on this aspect andslowly-slowly he admitted registration of several cases and his prosecution.The Investigating Officer Shri Ahirwar (P.W. 12) has also admitted in Paragraph 22 last but one line that Abdul Wahid(P.W. 10) was a history- sheeter . 18.Solitary eye witness Abdul Wahid has failed to explain material and importantomission which amounts to contradiction in FIR about absence of name ofappellant Bunty @ Darbarsingh against whom he has stated in Court that he caused injuries to deceased byknife and deceased sustained fatal injury on abdomen caused by knife. 19.Learned Counsel for the appellant has pointed out that Abdul Wahid wassuffering from Cancer in his right leg and also had accident in the year 1988.In Paragraph 21 of the statement of Abdul Wahid he has admitted this fact andalso stated that there was imputation of right leg because of Cancer as well asaccident and he was having artificial right leg because of which he is able towalk slowly and in these circumstances how he alone could be able to drivemotorcycle. We are not impressed by this argument. We are not impressed by this argument. With the help of artificialleg or part of one leg the persons are able to perform their routine work andalso can drive motorcycle for which much operations are not needed by leg andthere are several motorcycles which has self starting facility, hand gear,accelerator and brakes for which legs are not at all required to use whilestarting and driving the motorcycle. It is also not clear that what kind ofmotorbike was used by him. Witness Abdul Wahid has deposed in Paragraph 33 ofhis deposition that after lodging FIR ( Exh . P-23) hehad also given in writing a second report against the actual culprit at whoseinstance the present appellants committed murder of his son. He hasspecifically stated that second report was given by him to Shri Shivpalsingh Chouhan (P.W.15) but this report has not been filed by the prosecution. Abdul Wahid has alsostated that report was against one Rajkurnar Gupta.His one important report which was lodged earlier to the alleged incidentagainst Rajkurnar Gupta and son of the appellantswherein he disclosed his apprehension and danger from these persons was alsonot filed by the prosecution and Investigating Officer Shri Lalaram Ahirwar (P.W. 12)denied the presence of any such reports in Police Station or lodging of anysuch reports by Abdul Wahid. 20.Solitary eye witness Abdul Wahid has deposed that after incident he reached tohis deceased son and sent him to hospital. At that time, his clothes weresmeared with blood of his son, if this is so the Investigating Officer shouldhave seized his blood stained clothes which could support his version butclothes were not seized and Investigating Officer has not given any explanationfor this. Supreme Court in Khima Vikamshi and others Vs. State of Gujrat , (2003) 9 SCC Page 420( See : Para 6) has consideredthis aspect and held that the circumstances fatal to the prosecution. 21.In view of the aforesaid serious deficiency in the prosecution case, in theopinion of this Court, general and omnibus statement against all the appellantsfor assaulting deceased by different-different weapons is not sufficient tobring home the guilt of the appellants, therefore, appellants are entitled toget benefit of doubt. 22.In the result, both appeals are allowed. Appellant Bunty @ Darbarsingh is on bail. His bail bond and suretybond stand discharged. 22.In the result, both appeals are allowed. Appellant Bunty @ Darbarsingh is on bail. His bail bond and suretybond stand discharged. All other appellants in both the appeals are in jail.The learned Trial Court is directed to release them forthwith if not wanted inany other criminal case. 23.Office is directed to send the copy of this judgment immediately to the TrialCourt with record. 24.The original judgment be placed in the record of Cr.A . No. 809/2003 and a copy thereof be placed in the record of Cr.A . No.810/2003.