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Madhya Pradesh High Court · body

2009 DIGILAW 991 (MP)

SHIVA @ SHIVLAL v. STATE OF M. P.

2009-08-18

MANJUSHA P.NAMJOSHI, S.L.KOCHAR

body2009
JUDGMENT : S. L. KOCHAR, J. 1. Both the appeals are arising out of one common judgment, therefore, decided by this common 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 Criminal Procedure Code against the judgment dated 21-8-2003 passed by the learned 10th Additional Sessions Judge, Indore in S.T. No. 129/02 whereby appellants have been convicted under section 148 of the Indian Penal Code and sentenced to undergo R.I. for 2 years with fine of Rs. 1,000/- and in default of payment of fine 3 months RI also under section 302/149 of the Indian Penal Code sentenced to undergo imprisonment for life with fine of Rs. 2,000/- and in default of payment of fine additional RI for 6 months respectively. All the substantive jail sentences have been directed to run concurrently. 3. Briefly stated the prosecution case as unfolded before the trial Court is that on 9-12-2001, in the night at 9.30 p.m., complainant Abdul Wahid (P.W.10), father of deceased Shahid was following, Tempo Trax, on motorcycle wherein his son Shahid was going. Shahid stopped Tempo Trax in front of beer shop situated at Depalpur Ingoriya Road. Shahid purchased a beer bottle and coming back from the shop at that moment appellants having knife and broken beer bottle reached over there and started assaulting Shahid by knife and broken glass bottle. Abdul Wahid raised alarm to save his son and after stopping motorcycle rushed towards his son to save him. Appellants after assaulting 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 and concerned 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 next date, i.e., 10-12-2001 Shri Ahirwar prepared inquest report (Exh.P-5) and sent the dead body for post-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. Shri Ahirwar reached on the spot and prepared spot map (Exh.P-24) at the instance of Abdul Wahid (P.W.10). On the next date, i.e., 10-12-2001 Shri Ahirwar prepared inquest report (Exh.P-5) and sent the dead body for post-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 blood stained and controlled earth, one comb, one pair black chappal, one wrist watch, two bottles containing blood spots were seized through seizure memo (Exh.P-20) in presence of the witnesses. P.W. 15, the then SHO Shri Shivpalsingh Chouhan got prepared the spot map from Patwari and took the appellants in custody thereof. On the basis of disclosure statement as per provision under section 27 of the Evidence Act, Shri Shivpalsingh Chouhan recovered the weapons at the instance of the appellants. Clothes of the deceased were also seized and all seized articles were sent to Forensic Science Laboratory for chemical examination and its report is Exh.P-31. Some articles were sent to Serologist and its report is Exh.P-34. On completion of investigation appellants were charge-sheeted for commission of offence under sections 148,302/149 of the Indian Penal Code. 4. Appellants refuted the charges and pleaded innocence. They have not examined any witness in defence, whereas prosecution has examined as many as 16 witnesses and adduced 34 documents to prove its case. Learned trial Court finding the appellants guilty, convicted and sentenced them as indicated hereinabove. 5. We have heard learned Counsel for the parties and also perused the entire record of the trial Court. Learned Counsel 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 the same was prepared later on. In support of this submission learned Counsel has pointed out several defects and circumstances which will be dealt with in the following paragraphs. It is also submitted that conviction is based on the solitary testimony of related and partisan witnesses father of deceased Abdul Wahid (P.W. 10), who cannot be relied upon in the facts and circumstances of the instant case. 6. On the other hand, learned Counsel for the State has supported the impugned judgment and finding arrived at by the learned trial Court. 7. 6. On the other hand, learned Counsel for the State has supported the impugned judgment 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 and not as shown by the prosecution as well as conviction is sustainable on the basis 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 ¼ km. FIR (Exh.P-23) was recorded by Sub Inspector Shri Ahirwar (P.W. 12). Shri Ahirwar has stated that after recording FIR, copy thereof was immediately sent on the next day morning, i.e., 10-12-2001. He has not filed any documentary evidence to establish the fact of sending and receiving the copy of FIR. The appellants had filed carbon copy of the FIR (Exh.D-4) wherein it is shown that copy was 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 that probably concerned Constable did not produce the FIR immediately and cause delay 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 the FIR (Exh.P-23) wherein the day of incident was Sunday. He has also pointed out M. P. Law Times 2001 Page Nos. 3, 4 and 5 about notification of holiday of High Court and Subordinate Courts in Madhya Pradesh and it is clear from this notification that 10th and 11th December, 2001 was not the holiday. In this view of the matter, it is clear that copy of the FIR in compliance with provision of section 157 of the Criminal Procedure Code was not sent forthwith and unexplained delay has been caused by the Investigating Agency to send the same. This is one circumstance which can be considered in favour of the arguments advanced by learned Counsel to establish that FIR was a concocted piece of evidence and brought into existence later on after consultation and giving thought over the issue. This is one circumstance which can be considered in favour of the arguments advanced by learned Counsel to establish that FIR was a concocted piece of evidence and brought into existence later on after consultation and giving thought over the issue. Supreme Court in case of State of Rajasthan vs. Tejasingh and others, 2001 SCC (Cri.) Page No. 439, has considered the importance of provisions under section 157 of Criminal Procedure Code and held that unexplained inordinate delay in sending copy 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) has also proved the spot map (Exh.P-24) prepared and signed by him. In cross-examination Paragraph 19, he denied the presence of dead body of deceased on the spot at the time of preparation of spot map (Exh.P-24) but when confronted with contents of spot map (Exh.P-24) "C to C" part written by him he admitted the presence of dead body on the spot at 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 for post-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 same time by Dr. P. C. Kashyap (P.W. 3). In post-mortem requisition form (Exh.P-26) sent along with dead body the time of sending is also mentioned 8.00 a.m. Body was taken to the hospital by Constable Shankarlal (P.W. 14) who proved requisition (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 this document also date and time is also mentioned 10-12-2001 at 8.00 a.m. Time of preparation of spot map is later than the time of sending dead body from the spot to hospital for post-mortem is showing the fact that all these documents were not prepared according to steps taken during the course of investigation in time to time, then and there, and later on times were mentioned because of which fault was committed by the Investigating Officer. The prosecution has failed to explain this serious discrepancy about timing. 11. The prosecution has failed to explain this serious discrepancy about timing. 11. Shri Ahirwar (P.W. 12) has also proved seizure of blood stained and controlled earth, comb, one pair black colour leather chappal, one wrist watch, two broken beer bottles lying near dead body of deceased vide seizure memo (Exh. P-20). This seizure was effected in the intervening night of 9-12-2001 and 10-12-2001 at 12.10 a.m. (00.10 hours). Surprisingly, if these articles were seized in the intervening night then how all these articles were also present and seen at the time of preparation of spot map on 10-12-2001 at 9.30 a.m. All these facts and circumstances of the case are showing that there was manipulation and concoction in the investigation and documents were prepared in ante date and time. 12. Constable Shankarlal (P.W. 14) has also stated that on 10-12-2001, in the morning at 8.00 a.m., he had taken the dead body for post-mortem examination with requisition (Exh. P-26). 13. SHO Shri Shivpalsingh Chouhan (P.W. 15) has admitted overwriting in several documents regarding arrest, memorandum, search and seizure 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 of slip of pen at the time of writing the overwriting occurred and same was bona fide. 14. We have perused these documents and it is clear that at the first stroke some other crime number was mentioned which was later on corrected or changed because of which there is overwriting on all these documents. If FIR was recorded as shown by the prosecution on correct time and date, followed by investigation, then there was no reason for commission of above mentioned mistakes 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) and other documents as mentioned hereinabove. Shri Ahirwar (P.W. 12) has deposed in Paragraph 15 of his deposition that in serious offences after recording of FIR short description of the same is being written in daily diary and thereafter number of daily diary is 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 not mentioned and for this omission he has failed to give any explanation. If FIR was recorded as shown, there was no reason why the summary could not be recorded immediately as per rules in daily diary and number whereof be mentioned in FIR. Before the learned trial Court as well as before this Court it is pointed out that all these loop holes and lacuna are available because FIR was not recorded on the date and time as shown and prepared later on because of which daily diary number could not be given. This situation could have been cleared by prosecution or defence or by the learned trial Court by calling the relevant daily diary book about entry of summary of FIR of the instant case (Exh.P-23) and the same position would have been cleared about concoction of FIR but none had taken pain to do so. 15. The Supreme Court in catena of its judgment has pointed out importance of FIR and held 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 authenticity of their evidence". (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 be checked by sending of the copy of FIR to the Superior Police Officials and concerned Magistrate in accordance with the provision of section 157 of Criminal Procedure Code as well as police regulations but in the instant case as pointed out hereinabove copy of the FIR was sent after two days and delay has not been explained by the prosecution. 17. The conviction of the appellants is based on the solitary testimony of Abdul Wahid (P.W. 10), father of the deceased who can be defined as interested and partisan witness because he has stated that he and his son has long standing inimical terms with the appellants and they were facing prosecution for assaulting appellant Karansingh Gujar (See : Para 12). Abdul Wahid has also admitted about his criminal antecedents and his prosecution in several cases including offences under sections 307, 302 of the Indian Penal Code and section 25 of the Arms Act and several other offences. (See: Paragraphs 11, 12, 13, 14, 15 and 16 of his statement). Abdul Wahid has also admitted about his criminal antecedents and his prosecution in several cases including offences under sections 307, 302 of the Indian Penal Code and section 25 of the Arms Act and several other offences. (See: Paragraphs 11, 12, 13, 14, 15 and 16 of his statement). He has been cross-examined in detail on this aspect and slowly-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 important omission which amounts to contradiction in FIR about absence of name of appellant Bunty @ Darbarsingh against whom he has stated in Court that he caused injuries to deceased by knife and deceased sustained fatal injury on abdomen caused by knife. 19. Learned Counsel for the appellant has pointed out that Abdul Wahid was suffering 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 and also stated that there was amputation of right leg because of Cancer as well as accident and he was having artificial right leg because of which he is able to walk slowly and in these circumstances how he alone could be able to drive motorcycle. We are not impressed by this argument. With the help of artificial leg or part of one leg the persons are able to perform their routine work and also can drive motorcycle for which much operations are not needed by leg and there are several motorcycles which has self starting facility, hand gear, accelerator and brakes for which legs are not at all required to use while starting and driving the motorcycle. It is also not clear that what kind of motorbike was used by him. Witness Abdul Wahid has deposed in Paragraph 33 of his deposition that after lodging FIR (Exh.P-23) he had also given in writing a second report against the actual culprit at whose instance the present appellants committed murder of his son. He has specifically 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 also stated that report was against one Rajkumar Gupta. He has specifically 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 also stated that report was against one Rajkumar Gupta. His one important report which was lodged earlier to the alleged incident against Rajkumar Gupta and son of the appellants wherein he disclosed his apprehension and danger from these persons was also not 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 any such reports by Abdul Wahid. 20. Solitary eye witness Abdul Wahid has deposed that after incident he reached to his deceased son and sent him to hospital. At that time, his clothes were smeared with blood of his son, if this is so the Investigating Officer should have seized his blood stained clothes which could support his version but clothes were not seized and Investigating Officer has not given any explanation for this. Supreme Court in Khima Vikamshi and others vs. State of Gujarat, (2003) 9 SCC Page 420 (See : Para 6) has considered this aspect and held that the circumstances fatal to the prosecution. 21. In view of the aforesaid serious deficiency in the prosecution case, in the opinion of this Court, general and omnibus statement against all the appellants for assaulting deceased by different-different weapons is not sufficient to bring home the guilt of the appellants, therefore, appellants are entitled to get benefit of doubt. 22. In the result, both appeals are allowed. Appellant Bunty @ Darbarsingh is on bail. His bail bond and surety bond 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 in any other criminal case. 23. Office is directed to send the copy of this judgment immediately to the trial Court 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.