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2010 DIGILAW 565 (MP)

Radhiya @ Radheshyam v. State of M. P.

2010-05-17

BRIJ KISHORE DUBE, S.L.KOCHAR

body2010
JUDGMENT 1. This judgment shall also govern disposal of both the appeals as they arise out of the common judgment. 2. Since Appellant Samandarsingh had died during pendency of appeal, therefore his appeal stands abated and his name has been deleted from the cause title of memo of appeal vide order dated 6.1.09 of this Court. 2. Appellant Radhiya @ Radheshyam has filed Criminal Appeal No. 981 of 2000 and Appellants No. 1 to 3 have filed Criminal appeal No. 1066 of 2000 against the impugned judgment and order of conviction and sentence passed by learned Sessions Judge, Rajgarg (Biaora) in ST No. 76 of 1998 by which all the Appellants stand convicted and sentenced as under: Name of Appellant offence under Section sentence 1. Radhiya @ Radheshyam Section 148 IPC 2 years RI with fine of Rs. 500/- in default to undergo six months RI. Section 149/302 2 years RI with fine of Rs. 500/- in default to undergo six months RI. 2. Banesingh Section 148 IPC 2 years RI with fine of Rs. 500/- in default to undergo six months RI. Section 149/302 Life Imprisonment, with fine of Rs. 1000/-, in default to undergo one year R.I. 3. Amarsingh Section 148 IPC 2 years RI with fine of Rs. 500/- in default to undergo six months RI. Section 149/302 Life Imprisonment, with fine of Rs. 1000/-, in default to undergo one year R.I. 4. Mangilal Section 148 IPC 2 years RI with fine of Rs. 500/- in default to undergo six months RI Section 149/302 Life Imprisonment, with fine of Rs. 1000/-, in default to undergo one year R.I. All the sentences shall run separately. 3. According to the prosecution case, before two days of the incident i.e. on 5.4.1998 in the evening at about 5 pm, complainant P.W. 2 Nandram had gone to village Koila along with other villagers for attending marriage of the son of Onkar Patel and they were returning back including Jagannath (deceased) to their village Teelapura. When they reached near the house of Kanwarji situated in village Chandpura, all the five accused reached over there armed with Lathis and Stones and on extortion made by accused Amarsingh, they started assaulting Jagannath by Lathis and Stones. Accused Amarsingh caused several injuries by pelting Stones. Jagannath (deceased) succumbed to the injuries on the spot itself. When they reached near the house of Kanwarji situated in village Chandpura, all the five accused reached over there armed with Lathis and Stones and on extortion made by accused Amarsingh, they started assaulting Jagannath by Lathis and Stones. Accused Amarsingh caused several injuries by pelting Stones. Jagannath (deceased) succumbed to the injuries on the spot itself. P.W. 2 complainant Nandram met on the way at cross road of village Khandur to P.W. 7 Head Constable Hazarilal Sharma and lodged Dehati Nalish Ex. P.2. On the basis of Dehati Nalish, FIR (not proved) was registered by P.W. 11 Mr. A.K. Agrawal, T.I. On the basis of Dehati Nalish, FIR Ex. P.1 was registered at Bhojpur Police Station and this FIR (Ex. P.1) was produced before T.I. Rajgarh by P.W. 1 Constable Rugnathsingh. 4. The Investigating Officer after preparation of inquest report Ex. P.5, sent the dead body for post mortem examination to the hospital and the same was conducted by P.W. 8 Dr. V.K. Jha. Post Mortem report is Ex. P 6. P.W. 11 A.K. Agrawal, T.I. after registration of FIR in Rajgarh Police Station, prepared the spot map Ex. P 9 and also recorded the statements of witnesses who were acquainted with the facts of the case. On arrest of accused persons as per their disclosure statements under Section 27 of Evidence Act, Lathis were seized. After completion of investigation, five accused were charge sheeted for commission of murder of Jagannath, punishable under Sections 148, 302 and 302 read with Section of the Penal Code. 5. All the accused denied the charges levelled against them and claimed for trial. They have examined three witnesses in defence, whereas, prosecution has examined in all 12 witnesses and got exhibited about 24 documents to prove its case. 6. Learned Sessions Judge after trial found the prosecution case proved, convicted and sentenced the Appellants as noted herein above. 7. We have heard learned Counsel appearing for the parties and also perused the entire record minutely. It emerged from the record that conviction recorded by the Trial Court is based on eye witnesses account of P.W. 2 Nandram, P.W. 3 Deviram, both cousin brothers of deceased Jagannath, P.W. 6 Shankar, an independent witness as well as P.W. 10 Shivlal, son of deceased Jagannath. 8. It emerged from the record that conviction recorded by the Trial Court is based on eye witnesses account of P.W. 2 Nandram, P.W. 3 Deviram, both cousin brothers of deceased Jagannath, P.W. 6 Shankar, an independent witness as well as P.W. 10 Shivlal, son of deceased Jagannath. 8. Before the Trial Court as well as this Court, homicidal death of deceased Jagannath has not been disputed, otherwise also, on the basis of the evidence of P.W. 8 Dr. V.K. Jha, it is fully proved. Dr. V.K. Jha also proved post mortem Ex. P.6. During postmortem examination, Dr. Jha had found three external injuries on the dead body of deceased Jagannath, caused by hard and blunt object and in his opinion, Jagannath had died because of injury to Skull, causing damage to brain matters and fracture of fronto parietal bone. 9. Learned Counsel appearing for the Appellants submitted that on internal examination of Skull, Dr. Jha had found it in putrefied condition and in para-7 of his statement, he also opined that the dead body was completely decomposed and the same could take 7-8 days. According to the opinion of Dr. Jha recorded in paras 7, 8 and 9, deceased Jagannath could die prior to the date of incident i.e. 5.4.1998 at 5 pm. In the light of aforesaid opinion of Dr. Jha P.W. 8, prosecution, has failed to establish that deceased Jagannath had died on 5.4.1998 at or about 5 pm and statements of eye witnesses do not find support from medical evidence about the date and time of incident. 10. Having given our anxious consideration to the evidence of medical expert, we are of the opinion that eye-witnesses' account is not duly corroborated by medical evidence of Dr. Jha about actual date and time of commission of murder of Jagannath. The evidence of Dr. VK Jha PW-8 has given great jolt to the prosecution case. 11. Now we would examine the evidence of eye witnesses, whether their testimonies are free from all doubts to place reliance? 12. P.W. 3 Devram, P.W. 6 Shankar and P.W. 10 Shivlal were interrogated by I.O. P.W. 11 A.K. Agrawal on 10.4.1998. The I.O. Mr. Agrawal has failed to assign any reason as to why these witnesses were examined after 4-5 days of the incident. 12. P.W. 3 Devram, P.W. 6 Shankar and P.W. 10 Shivlal were interrogated by I.O. P.W. 11 A.K. Agrawal on 10.4.1998. The I.O. Mr. Agrawal has failed to assign any reason as to why these witnesses were examined after 4-5 days of the incident. Delay in recording statements of eye witnesses or disclosure by the eye witness/s, simplicitor is not sufficient to fragile the prosecution case, if the same is explained by reasonable and plausible explanation, but, in the instant case, prosecution has failed to give any explanation for delay in disclosure to Police by the witnesses as well as delay in recording the statements of eye witnesses by the I.O., though their names were mentioned specifically in FIR and P.W. 2 Nandram and P.W. 3 Devram are the real cousin brothers of deceased Jagannath. 13. Further, there is one more serious lapse in prosecution case i.e. P.W. 2 Nandram has deposed in para-8 of his statement that on the next day of the incident, he had gone to Police Station, where he met a clerk who told him that after spot inspection, report would be written. Thereafter, Police reached on the spot and after inspecting the same, his report was recorded. Further say of this witnesses is that he reached at the Police Station at about 8 am and returned back in a Jeep on the spot at 11am. Thereafter, at about 12 .00 noon, his report was recorded. He has further stated that he was not having Wrist-watch, therefore, he cannot say whether report was recorded at 2.00 pm. Thus, it is clear from his evidence that he was not sure whether report was recorded at 12.00 noon or at about 2.00 pm. 14. P.W. 2 Nandram in para 24 has stated that Station House Officer told him that Jagannath was not assaulted by inhabitants of village Chandpur, he (this witness) is telling lie and his version would be verified on seeing the body of Jagannath about number of injuries. He has also stated that dead body of Jagannath was seen by Investigating Officer and he told him that he made a correct complaint and recorded his report while sitting near the dead body. He has also stated that dead body of Jagannath was seen by Investigating Officer and he told him that he made a correct complaint and recorded his report while sitting near the dead body. This statement of Nandram is contradictory to his statement given in para-2 of examination-in-chief, wherein, he has deposed that Jagannath was taken to Bhojpur Police Station in injured condition where he (Nandram) lodged the report and in para-3, he stated that deceased Jagannath was taken to Khilchipur hospital where on examination by Doctor, he was declared dead. 15. The aforesaid statements of Nandram about lodging of the report, medical evidence about time of death of deceased and delay of five days in recording of statements of eye witnesses are sufficient to infer that infect they were not the eye witnesses of the incident and simple intimation of death was given to Police and Police after reaching on the spot, concocted a case at the instance of relatives of the deceased. 16. Supreme Court in the case of Ramesh Baburao Devaskar and Ors. v. State of Maharashtra (2009) SCC 212 has held that FIR was recorded after inquest inquiry and the same was also recorded not immediately, but, after visit of the place of occurrence by Investigating Officer alongwith the witnesses, such FIR cannot be relied upon. More or less, similar is the situation in the instant case regarding recording of FIR/Dehati Nalish. The version about recording of Dehati Nalish, Ex. P.2, P.W. 7 Head Constable Hazarilal Sharma, who has also prepared inquest report Ex. P.5, is not corroborated by the author of Dehati Nalish P.W. 2 Nandram. Both have given contradictory statements about lodging of Dehati Nalish Ex. P.2. According to Nandram, no report like Dehati Nalish Ex. P.2 was recorded, but, he lodged the final report at Police Station. At the same time, in cross-examination, he has given contradictory statement that his report was not recorded and the same was recorded on the spot after visit of the spot by the Investigating Officer/Police and inspection of the body of deceased. Yet there is one more serious infirmity in the instant case, in comparison to the case of Ramesh Baburao (supra) i.e. time and date of the incident is contradicted by medical evidence of Dr. V.K. Jha. 17. Ex-consequently, both these appeals filed by Appellants are allowed. Yet there is one more serious infirmity in the instant case, in comparison to the case of Ramesh Baburao (supra) i.e. time and date of the incident is contradicted by medical evidence of Dr. V.K. Jha. 17. Ex-consequently, both these appeals filed by Appellants are allowed. Their conviction and sentence passed by learned Sessions Judge are hereby set-aside. Their bail bonds stand discharged.