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Madhya Pradesh High Court · body

2010 DIGILAW 942 (MP)

SOMU s/o VIJAY SINGH YADAV v. STATE OF M. P.

2010-09-16

S.L.KOCHAR, S.R.WAGHMARE

body2010
JUDGMENT : L. KOCHAR, J. 1. All the aforesaid four Criminal Appeals arise out of one judgment, hence same are taken up together and dispose of by this common judgment. 2. The aforesaid nine appellants have preferred these appeals under section 374 of the Criminal Procedure Code against the judgment dated 14-12-2004 rendered by learned IV Addl. Sessions Judge, Indore in ST No. 127/2003 whereby all the nine appellants have been convicted under section 302 of the Indian Penal Code and each is sentenced to imprisonment for life with fine of Rs. 1,000/-, in default of payment of fine to suffer additional RI for six months. Further, appellants Dinesh, Vijay, Amar Singh and Raju @ Rajesh Borasi have been convicted under section 148 of the Indian Penal Code and each is sentenced to RI for three years and appellants Gappu @ Dashrath, Somu, Raju Yadav s/o Deokaran, Dilip and Radheshyam have been convicted under section 147 of the Indian Penal Code and each is sentenced to RI for two years. 3. Briefly stated the prosecution case as unfolded before the trial Court is that on 21-1-2003 deceased Rajesh Tiwari was coming to the house of his wife Shobha Tiwari (PW.1) and when he reached in front of the house of Dinesh Yadav, Dinesh Yadav started abusing, at that moment Rajesh asked as to why he was abusing in the locality where womens and girls were residing. On objection being raised by Rajesh Tiwari, Amarsingh, Dinesh Yadav, Raju Yadav and Gappu @ Shekh Jatav also started abusing Rajesh Tiwari on which Rajesh Tiwari also abused them. Shobha Tiwari brought her husband Rajesh Tiwari to her house. On 24-1-2003 in the evening at 6.00 pm deceased Rajesh Tiwari, after taking his meals was going to the house of his mother followed by his wife Shobha Tiwari (PW.1). When they reached in front of the house of Rajesh and Chottelal Choudhary, the appellants who were standing there having various weapons in their hands, surrounded Rajesh Tiwari and while saying that today Rajesh will be killed and he would not be allowed to escape, started assaulting him and deceased fell down on the ground. Appellant Somu Yadav and Gappu @ Dashrath picked up a stone from the spot and threw the same on the head of deceased which caused serious injuries to the skull of the deceased. Appellant Somu Yadav and Gappu @ Dashrath picked up a stone from the spot and threw the same on the head of deceased which caused serious injuries to the skull of the deceased. Upon hearing outcry of Shobha Tiwari, witnesses Ravi Shankar Tiwari, Manoj Yadav, Phutiabai, Smt. Mohini Yadav rushed to the spot to save Rajesh. Appellants, after assault, fled away from the spot. Deceased died on the spot. Shobha Tiwari lodged the report in the M.I.G Police Station Indore immediately vide Ex.P.1, recorded by Sub-Inspector M. K. Singh (PW.16). SHO Shri B. P. M. Parihar (PW.17) stepped into investigation and prepared spot map at the instance of Smt. Shobha Tiwari vide Ex.P.2. He also seized blood stained and controlled earth, a big stone and farsi-stone (broken piece of heavy solid stone tiles) (for short "tiles") and other article through seizure memo (Ex.P.7). He recorded the statements of Smt. Shobha Tiwari and Mohini Yadav. The appellants were arrested and on their disclosure statements, various weapons like iron rod, sword, gupti, lathi, knife etc. were seized. One Bu-shirt, T-shirt, two shirts and a pant were seized from appellants Gappu @ Dashrath, Vijay Sahu, Radheshyam and Somu. Blood stained clothes of deceased and preserved viscera were also seized by the investigating officer. Investigating officer recorded the statements of several witnesses who were acquainted with the facts of the case and also sent the seized article to FSL. Report whereof is Ex.P.42. 4. On due investigation, charge-sheet was filed against the appellants for commission of offence under sections 147, 148, 302, 302/149 of the Indian Penal Code. 5. Appellants refuted the charges and pleaded innocence. Their defence is of false implication on account of inimical terms with the complainant. They have not examined any witness in defence whereas prosecution has examined in all 17 witnesses and also adduced 42 documents to prove its case. Learned trial Court, finding the appellants guilty, convicted and sentenced them as indicated hereinabove. 6. We have heard the learned counsel for parties and also perused the entire record of the trial Court, carefully. They have not examined any witness in defence whereas prosecution has examined in all 17 witnesses and also adduced 42 documents to prove its case. Learned trial Court, finding the appellants guilty, convicted and sentenced them as indicated hereinabove. 6. We have heard the learned counsel for parties and also perused the entire record of the trial Court, carefully. Learned counsel for appellants have submitted that statements of all the four eye witnesses relied upon by the learned trial Court, i.e. Shobhabai (PW.1), Muktabai @ Premabai (PW.4), Rajaram (PW.8) and Premshankar/Ravi Shankar (PW.11) are full of contradictions, improvements and omissions, therefore, no implicit reliance can be placed on their testimony and that statement of Muktabai (PW.4) was recorded after one month whereas statement of Rajaram (PW.8) and Premshankar (PW.11) were recorded on 26-1- 2003 after one day of the incident i.e. on third day though these witnesses were available to the investigating officer. It is also argued that Shobhabai (PW.1) and Prem Shankar (PW.11) are the wife and maternal uncle, respectively of the deceased, therefore, they are interested witnesses and hence, should not be banked upon for proving the guilt of the appellants. It is also argued that the general and omnibus overtact of appellants Dinesh, Dilip, Radheshyam, Vijay Sahu and Amar Singh using hard and blunt object for causing injuries to deceased is not duly corroborated by the medical evidence of autopsy surgeon Dr. Sanjay Kumar Dadu (PW.15). Learned counsel has also urged that presence of Shobha (PW.1) is belied by the statement of Manoj Choudhary (PW.5) who has not been declared hostile by the prosecution and that in the FIR use of knife and Gupti is not mentioned by Shobhabai (PW.1). On all these grounds, learned counsel for appellants have prayed for acquittal of the appellants. 7. On the other hand, learned counsel for State has submitted that because of earlier incident and inimical terms which is an admitted position by both the parties, all the appellants, after forming unlawful assembly, made a murderous assault on deceased, causing his instantaneous death on the spot. The incident occurred in a broad day light and near the houses of appellants as well as witnesses and deceased, therefore, presence of witnesses on the spot was natural and their version cannot be discarded on the basis of some minor contradictions. The incident occurred in a broad day light and near the houses of appellants as well as witnesses and deceased, therefore, presence of witnesses on the spot was natural and their version cannot be discarded on the basis of some minor contradictions. Learned Prosecutor has also submitted that because of some lapses on the part of investigating officer in investigation, the entire prosecution case cannot be thrown over the board especially when in the instant case, investigating officer has given explanation for delay in recording the statements of the eye witnesses. In all, learned Public Prosecutor has supported the impugned judgment and finding arrived at by the learned trial Court. 8. The moot question for consideration before us is whether learned trial Court has rightly placed reliance on the testimony of abovementioned four eye witnesses? We would further like to find out whether statements of these witnesses arc corroborating to each other on material particulars and also getting corroboration by other evidence? 9. First of all we would like to deal with the statement of Shobhabai (PW.1), wife of the deceased who lodged the report (Ex.P.1) and also proved the same in the Court. She has named all the appellants and there is no dispute about identification of the appellants. Appellants were very well known to her. According to this witness, on account of some earlier incident occurred before three days, her husband deceased Rajesh was assaulted by the appellants when on 24th January in the evening at about 5.45 pm they were going to the house of her sister-in-law Munnibai situated in the same locality. Her husband was going ahead followed by her at the distance of 8-10 feet. When her husband reached near the house of appellant Dinesh, they found all the nine accused standing with pipe, sword, iron rod, lathi and appellant Dinesh struck a pipe on the head of her husband, thereafter all the nine accused started assaulting with their respective weapons. After fall of Rajesh on the ground, appellant Gappu @ Dashrath lifted a stone from the ground and threw the same on the head of deceased whereas appellant Somu struck by piece of farsi which was lying nearby where the house was being constructed. Because of throwing stone and strucking farsi (piece of tiles of heavy stone), the skull of deceased was crushed and brain matter came out. Because of throwing stone and strucking farsi (piece of tiles of heavy stone), the skull of deceased was crushed and brain matter came out. Appellant Radheshyam gave 2-3 bricks blow on back portion and all were exhorting by saying that kill the deceased and he should not escape. Further say of this witness is that when she reached near her house to save him, upon hearing her cry, Manoj, Rajaram, Phutiabai and Premabai and other persons also reached on the spot but because of pelting of pieces of brick and stone by the appellants they could not reach near to the deceased to save them. She lodged the report (Ex.P. 1) in the police station immediately in the same evening at 6.15 pm recorded by Sub-Inspector Shri M. K. Singh (PW.16) who also admitted and proved FIR (Ex.P.1). In cross-examination, she has deposed that at the time of incident she was not working anywhere because her child was alive and she denied regarding going to work as labourer. She was confronted with portion "E to E" of FIR wherein her occupation as labourer is mentioned. On the basis of this fact, it is argued that on the date of incident, she had gone to work as labourer but just to become an eye witness, she has denied mentioning of this fact in FIR. 10. On perusal of the FIR and statement of this witness, we are not impressed by this argument. In Clause 6 sub-clause (c) under the heading of "Occupation", "Occupation" is described as labourer. It does not mean that on the date and time of incident she had gone to work and just to show her presence, she denied. Fact of contradiction or omission about the fact of occupation would not be sufficient to hold that she was not present at the time of incident. 11. We have gone through the entire statement of this witness and we find a ring of truth in her statement about her presence and witnessing the incident but the question would be whether on the basis of her statement all the appellants would be liable for conviction as convicted by the learned trial Court. According to this witness, appellants Dinesh, Rajesh, Amarsingh, Vijay, Dilip, Raju Borasi, Raju Yadav, Gappu and Somu had used pipe, sword, iron rod, lathi, sword, stone, piece of farsi (stone), respectively. 12. According to this witness, appellants Dinesh, Rajesh, Amarsingh, Vijay, Dilip, Raju Borasi, Raju Yadav, Gappu and Somu had used pipe, sword, iron rod, lathi, sword, stone, piece of farsi (stone), respectively. 12. Now the question would be whether deceased suffered injuries which could be caused by all these weapons. For this, we refer the evidence of Dr. Sanjay Kumar Dadu (PW.15) who performed post-mortem and proved post-mortem report (Ex.P.38). According to Dr. Dadu, deceased suffered as many as 18 external injuries out of which, injuries numbers 1 to 4, 6 to 12 and 14 to 16 were stab and incised injuries and same could be caused by sharp edged and pointed object. Injury numbers 5, 17 and 18 were the impact abrasions and there was laceration at left mastoid region because of pieces of skull bone. In the opinion of medical expert, these injuries could be caused by hard and blunt object and in cross-examination he admitted that injury number 13 could be caused by fall or dashing against hard and blunt substance. In our considered view, the abrasion could be caused by hard and rough object and possibility of sustaining these minor abrasions by the deceased by fall on the ground could not be ruled out. 13. Therefore, the eye witness account of Shobhabai about general participation of all the appellants for causing injuries to deceased is not corroborated, hence, in our considered view the appellants Dinesh, Dilip, Radheshyam, Vijay Sahu, Amarsingh and Raju Yadav who were having hard and blunt object like lathi and iron rod are entitled to be acquitted because their overtact is not corroborated by medical evidence. So far as use of sharp edged weapon by appellant Raju @ Rajesh Borasi and throwing of heavy stone on head by Gappu @ Dashrath and strucking farsi on skull of deceased by Somu is concerned, the medical evidence is fully corroborating the version of eye witness Shobhabai (PW.l). The version of Shobhabai is also duly corroborated by her FIR which was lodged without any delay wherein she has given reasonable description of the incident. We have scrutinized the statement of this witness keeping in mind the law of appreciation of evidence and related witness and in our considered view, her testimony is fully reliable for upholding the conviction of these three appellants. 14. We have scrutinized the statement of this witness keeping in mind the law of appreciation of evidence and related witness and in our considered view, her testimony is fully reliable for upholding the conviction of these three appellants. 14. Against appellant Raju @ Rajesh Borasi, Gappu @ Dashrath and Somu, the evidence of other three eye witnesses i.e. Muktabai (PW.4), Rajaram (PW.8) and Premshankar (PW.11) are also at par with the evidence of Shobhabai (PW.1) but we do not place reliance on testimony of Muktabai @ Premabai (PW.4) because of inordinate delay in recording of her statement by Investigating Officer i.e. more than a month and for this delay, she has failed to account for. 15. The statement of Shobhabai (PW.1) is duly corroborated by the statement of independent eye witness Rajaram (PW.8) and Premshankar (PW.11), the maternal uncle of the deceased. It is argued that the statements of these two witnesses also cannot be relied upon because of delay in recording their statements by the appellants but we are not inclined to accept this argument because investigating officer has given reasonable and plausible explanation for not recording the statements of both the eye witnesses immediately on the date of incident because of law and order situation. We can also visualise the overall situation on the basis of statements of all the prosecution witnesses as well as investigating officer. The incident occurred in the evening and on the same day he had recorded the statement of Shobhabai (PW.1), and prepared spot map. Since the incident occurred in thickly populated locality in Indore town and because of inimical term between two group, the disturbance in law and order situation could not be ruled out. Learned counsel has pointed out that both the witnesses were available to the investigating officer on the next day on 25th January, 2003 at the time of preparation of inquest. At that time, their statements could have been recorded. What could have been done is not a fixed proforma in any law or guideline. If this was possible, law maker would have taken care of this situation. In the mortuary room, investigating officer prepared the inquest report after minute and detailed observation of the dead body, thereafter he was required to send the dead body immediately for post-mortem examination and he immediately rushed for searching and arrest of the accused persons. If this was possible, law maker would have taken care of this situation. In the mortuary room, investigating officer prepared the inquest report after minute and detailed observation of the dead body, thereafter he was required to send the dead body immediately for post-mortem examination and he immediately rushed for searching and arrest of the accused persons. In the instant case, names of both the eye witnesses are specifically mentioned in the FIR lodged by Shobhabai (PW.1) without any delay and we are fully satisfied that the FIR is a genuine piece of evidence, therefore, if some delay has occurred in recording the statements of both the eye witnesses, same would not cause any dent to the prosecution case. Recently, Supreme Court has held in series of cases that because of faulty investigation or lapses on the part of the investigating officer, the prosecution case should not be discarded in its entirety. See Supreme Court judgments passed in cases of Budh Singh vs. State of M.P., (2007) 10 SCC 496 , Rotash vs. State of Rajasthan, (2006) 12 SCC 64 , Achararaparambath Pradeepan vs. State of Kerala, (2006) 13 SCC 643, Mahendra Singh vs. State of M.P., (2007) 9 SCC 796 , Anil vs. State of Haryana, (2007) 10 SCC 274 . 16. On perusal of the statements of all the three eye witnesses Shobhabai (PW.1), Rajaram (PW.8) and Premshankar (PW.11), we are fully satisfied regarding involvement of appellant Raju @ Rajesh Borasi s/o Pillu Borasi, Gappu @ Dashrath, Somu s/o Vijay Singh Yadav and regarding their presence and participation as well as causing injuries to deceased is fully corroborated by medical evidence. Statement of Shobhabai (PW.1) is also corroborated by her FIR (Ex.P.1). There are some minor contradictions regarding weapon and use of the same in the statements of these witnesses but same are not of serious nature to discard the testimony of these three eye witnesses against these three appellants. 17. Statement of Shobhabai (PW.1) is also corroborated by her FIR (Ex.P.1). There are some minor contradictions regarding weapon and use of the same in the statements of these witnesses but same are not of serious nature to discard the testimony of these three eye witnesses against these three appellants. 17. We have perused the statement of Manoj Choudhary (PW.5) who was an independent eye witness who has supported the prosecution case in examination-in-chief regarding presence and participation of all the appellants but his statement was not completed on the first day of examination in the Court, therefore, the case was adjourned and he was further examined after 10 months and on that day in cross-examination he has denied the presence of all the appellants on the spot though he has admitted about witnessing the incident. He has also stated that Shobhabai (PW.1) reached on the spot when the incident was over. Learned trial Court, discussed the statement of this witness in para 36 of the impugned judgment and held that though he was present on the spot but in cross-examination he has deposed that he had not seen the appellants, facing trial, on the spot. His statement cannot be relied upon. On going through the statement of this witness, in our considered view it appears that he has deliberately resiled from his earlier statement given in examination-in-chief after 10 months but there was no re-examination by the Prosecutor for contradictory statement given by this witness on two dates. The learned Prosecutor should have put specific question in re-examination whether his earlier statement given in first part of examination-in-chief is true or later statement given after 10 months contradictory to first statement about presence and participation of the appellants herein, but no question was put by Prosecutor and learned trial Court has also failed to exercise its power envisaged under section 165 of the Evidence Act to clarify the ambiguity and fixed the witness on one point, therefore, we are of the considered view that this witness is not at all reliable on any count either in favour of the prosecution or in favour of defence. His balled statement that Shobhabai (PW.l) reached on the spot after the incident was over, cannot be acted upon looking to his own conduct in giving two kind of statement in Court. 18. His balled statement that Shobhabai (PW.l) reached on the spot after the incident was over, cannot be acted upon looking to his own conduct in giving two kind of statement in Court. 18. It would be apposite to mention here that it is the duty of the Court to find out the truth from falsehood and it is well settled legal position that close relative of the deceased would not leave the real culprit by implicating innocent person or persons in their place but at the same time he/they is/are also not immune to implicate the innocent persons along with the real culprit. We have appreciated the statements of all the three eye witnesses along with the medical evidence and other evidence in the light of those trite law. 19. Resultantly, Criminal Appeal No. 127/2005 is allowed in part, conviction and sentence of all the appellants as passed by the learned trial Court are hereby set aside, instead thereof appellant Raju @ Rajesh Borasi and Gappu @ Dashrath are convicted under section 302/34 of the Indian Penal Code and are sentenced to RI for life and fine of Rs. 1,000/-, in default of payment of fine each shall undergo additional RI for six months. It is made clear that all the appellants were charged for the offence under sections 302 and 302/149 of the Indian Penal Code, therefore, all the three appellants can be convicted for the offence under section 302/34 of the Indian Penal Code. See AIR 1958 SC 672 . In Criminal Appeal No. 113/2005, conviction and sentence as passed by the learned trial Court against the appellant Somu are hereby set aside and he is convicted under section 302/34 of the Indian Penal Code sentenced to RI for life and fine of Rs. 1,000/-, in default of payment of fine he shall suffer additional RI for six months, Criminal Appeal No. 143/2005 and Criminal Appeal No. 257/2005 are fully allowed in toto, conviction and sentence of appellant Amar Singh Yadav and Raju Yadav are hereby set aside. Appellant Raju Yadav is in jail, therefore, learned trial Court is directed to direct his release forthwith if he is not wanted in any other criminal case. 20. Appellants Dinesh Yadav, Dilip, Radheshyam, Vijay Sahu, Amar Singh Yadav are on bail, their bail and surety bonds stand discharged. Appellant Raju Yadav is in jail, therefore, learned trial Court is directed to direct his release forthwith if he is not wanted in any other criminal case. 20. Appellants Dinesh Yadav, Dilip, Radheshyam, Vijay Sahu, Amar Singh Yadav are on bail, their bail and surety bonds stand discharged. Office is directed to send a copy of this judgment along with the record to the trial Court immediately for compliance. 21. Original judgment is kept in Cri. A. No. 113/2005 and a copy whereof be placed in the record of connected Cri. A. No. 127/2005, Cri. A. No. 143/2005 and Cri. A. No. 257/2005.