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2010 DIGILAW 1027 (MP)

Ramnaresh @ Pappu v. State of M. P.

2010-10-11

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

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JUDGMENT A.K. Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 21.11.2006 passed by learned Sixth Additional Sessions Judge (Fast Track Court). Bhind in Sessions Trial No. 189/97 convicting the appellant under section 148 and 302/149 of the Indian Penal Code and thereby sentencing him to suffer RI for one year and Life imprisonment respectively and fine of Rs. 200/-, in default, further R.I. for 15 days, this appeal has been preferred by the appellant under section 374 (2) of the Criminal Procedure Code, 1973. 2. In brief the case of the prosecution is that at 10.30 p.m. of 14.1.1997, when complainant Ram Prakash and his elder brother Asharam alias Guddu (hereinafter referred to as "deceased") were offering Bhajans alongwith other inhabitants of the village in Ramjanki Mandir and the deceased was playing Dholak. at that juncture, in between Bhajan programme, absconding dacoit Ramesh Singh Kushwah came to the Temple and after hurling filthy abuses dragged the deceased. He was accompanied by 4-5 more persons and all these persons dragged the deceased upto nearby Nala. Thereafter, they heard sound of 3-4 gun shot fires. After departure of a gang of dacoits, the complainant came to the spot and found that the deceased had died on account of gun shot fires and empty cartirdges of 12 bore gun were lying near the dead body. Incidentally, the Police Party came in the Village in some other matter, at that time, to the police party a Dehati Nalishi (Ex. P/11) was lodged by complainant Ram Prakash and on the basis of the said Dehati Nalishi, an FIR (Ex. P/14) was registered. 3. After the investigation was over a charge sheet was submitted in the committal Court, which on its turn, committed the same to the Court of Sessions and from where it was received by the trial Court for its trial. 4. The learned trial Judge on the basis of the material placed on record framed charges against the appellant punishable under section 148 and 302/149 of IPC, which he denied and requested for trial. 5. In order to bring home the charges, the prosecution examined its witnesses and placed Ex. P/1 to P/21 the documents on record. 6. The defence of appellant is of false implication and the same is recorded under section 313 of CrPC. 5. In order to bring home the charges, the prosecution examined its witnesses and placed Ex. P/1 to P/21 the documents on record. 6. The defence of appellant is of false implication and the same is recorded under section 313 of CrPC. However, in support of his defence, he did not choose to examine any witness. 7. The learned trial Judge on the basis of the evidence placed on record came to hold that the charges are proved against the appellant and eventually convicted him for the offences under sections 148 and 302/149 of IPC by passing the sentences which we have already mentioned herein above, against which this appeal has been filed by the appellant assailing the judgment of conviction and order of sentence. 8. It has been contended by Shri Jitendra Dixit, learned counsel for the appellant, who is also assisted by Shri Praveen Mishra, Advocate that if the testimony of the star witness, namely, Ram Prakash, who is also the author of Dehati Nalishi, is tested on the anvil and touchstone of Dehati Nalishi (Ex. P/11 ), it would reveal that the material improvements have been made by this witness in his statement recorded in the Court and there are material omission and therefore the evidence of this witness cannot be relied upon. It has also been put forth by Shri Dixit learned counsel for the appellant that the other witness, namely, Munni Lal Singh (PW 6), although has stated against the appellant, but if his testimony is considered vis-a-vis the evidence of complainant Ram Prakash, it raises heavy doubt that this witness has seen the incident because at the time of the incident, this witness was present in his home and after hearing hue and cry, he came to the spot. Further, it has been contended by him that it is borne out from the testimony of both the witnesses that the faces of the miscreants were wrapped by the towels and if that would be the position, during odd hours in the night, it was difficult for the witnesses to identify the appellant. On these premised submissions, it has been argued by learned counsel for the appellant that this appeal be allowed and the judgment of conviction and the order of sentence be set aside. 9. On the other hand, Shri Vivek Khedkar, Learned Public Prosecutor has argued in support of the impugned judgment. 10. On these premised submissions, it has been argued by learned counsel for the appellant that this appeal be allowed and the judgment of conviction and the order of sentence be set aside. 9. On the other hand, Shri Vivek Khedkar, Learned Public Prosecutor has argued in support of the impugned judgment. 10. Having heard learned counsel for the parties we are of the view that this appeal deserves to be allowed. 11. In the present case, the prosecution has examined the witnesses, namely, Bhogiram (PW 1), Ganpat (PW 2). for Singh (PW 3), Vikram Singh (PW 4), Ram Prakash (PW 5) and Munni Lal Singh (PW 6) as eye-witnesses. Out of these 6 witnesses, four witnesses namely Bhogiram (PW 1), Ganpat (PW 2), for Singh (PW 3) and Vikram Singh (PW 4) were declared hostile as they did not support the case of prosecution, hence, only the statements of two witnesses, namely, Ram Prakash (PW 5) and Munni Lal Singh (PW 6) we are required to examine. Out of these two witnesses, Ram Prakash (PW 5) is also the author of Dehati Nalishi. 12. On bare perusal of the statement of complainant Ram Prakash, we find that the deceased was his elder brother and this witness alongwith the deceased and some other villagers was offering Bhajans in the Temple of Ramjanki. The deceased was playing Dholak and at that juncture, the absconding dacoit Ramesh Singh Kushwah came to the Temple and he dragged the deceased upto the Nala. Further, it has been stated that the accused was accompanied by 4-5 more persons. Specifically, this witness is saying that the faces of all the miscreants were wrapped by the towels. According to this witness, after dragging the deceased upto the Nala, he heard the sound of 3-4 gun shot fires and after the departure of the dacoits, this witness alongwith the other villagers came near the dead body and found that the deceased has been shot dead. According, to this witness, along with dacoit Ramesh Singh Kushwah, the appellant was also present. Although, specifically this witness has stated the presence of the present appellant also alongwith the main assailant Ramesh Singh Kushwah, but when this fact was confornted to him in his cross-examination, he has stated that Dehati Nalishi was not read over to him by the Police. Although, specifically this witness has stated the presence of the present appellant also alongwith the main assailant Ramesh Singh Kushwah, but when this fact was confornted to him in his cross-examination, he has stated that Dehati Nalishi was not read over to him by the Police. He has further stated that he cannot assign any reason as to why the statement regarding presence of the present appellant did not find place in his Dehati Nalishi. 13. At this juncture, we have also scanned the testimony of Investigating Officer Amar Singh Sengar (PW 14), who has categorically stated in paragraph 13 of his cross-examination that he did not find any material against the present appellant. We would like to quote that portion of paragraph 13 of his statement, which reads thus: **13 eSusa vius vuqla/kku ds nkSjku vkjksih jkeujs'k dks bl izdj.k esa fyIr gksuk ugha ik;k FkkA** Hence, from the statement of the Investigating Officer, it is clear that during investigation, he did not find any material and evidence against the present appellant. Hence, according to us, the involvement of present appellant in the crime becomes highly doubtful, and the charge-sheet was filed without any material and evidence against the appellant. 14. So far as the statement of star witness Ram Prakash (PW 5) is concerned, according to us, he is the real brother of the deceased and if his evidence is scrutinized with great care and caution, we find that there are material improvements and omissions in his statement. On bare perusal of Dehati Nalishi (Ex. P/11), which was confronted to him, we find that nowhere in Delwti Nalishi he has named the present appellant and, therefore, if in the Court, this witness is saying against the appellant, according to us, his statement amounts to material improvement and hence it would be hazardous to place reliance on such type of testimony of the star witness. 15. So far as the evidence of other eye-witness Munni Lal Singh (PW 6) is concerned, he has stated in his statement that when the dacoits came to the spot, he was in his home and on hearing hue and cry, he came to the Temple and found that dacoit Ramesh Singh Kushwah was dragging the deceased and carried him upto the Nala. According to us. According to us. his evidence is not at all reliable for the simple reason that the incident took place in the mid-night and as per the case of the prosecution, the faces of the miscreants were wrapped by towels and, therefore, it is difficult to hold that this witness has rightly identified the appellant. The investigating Officer has admitted in paragraph 13 of his statement, which we have already quoted hereinabove, that he did not find any material and evidence against the present appellant. If the testimony of this witness is considered vis-a-vis the star witness, according to us, it would create heavy doubt about the implication of the present appellant in the offence. Hence, we are extending our benefit of doubt to the appellant. 16. Resultantly, this appeal is allowed, the judgment of conviction and order of sentence passed by the learned Trial Court is hereby set aside and the appellant is acquitted from all the charges. The amount of fine, if deposited, be refunded to him. The appellant is in jail, he be set at liberty forthwith, if not required in any other offence.