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Madhya Pradesh High Court · body

2012 DIGILAW 233 (MP)

Samarjeet Singh v. State of M. P.

2012-02-23

G.D.SAXENA, SUSHIL HARKAULI

body2012
JUDGMENT : SUSHIL HARKAULI, J. l. the aforesaid Criminal Appeals arise out of the same judgment. They have been heard together, and are being decided by this common order. The appellants were tried for the offences (i) under section 302 IPC and also (ii) under section 364A IPC read with section 11/ 13 of M.P.D.P.K. Act 1981. The trial Court acquitted all the accused in respect of the offences under Section 364A IPC and Section 11/13 of M.P.D.P.K. Act, 1981. It has convicted the accused appellants under Section 302/149 of IPC and sentenced them to life imprisonment with fine. 2. The prosecution story as emerging from the FIR as well as the prosecution evidence runs as follows. Initially the accused together with a known dacoit Ramesh Singh Kushwah and his gang totaling about 20-25 people according to some witnesses, abducted one Ram Sahay (PW-3) who belonged to a different village namely Bichholi. At the time of the said abduction Ram Sahai was allegedly assaulted with the back of a Kulhadi, which Ram Sahai was carrying at that time, which resulted in a bleeding injury. However no injury report has been alleged or produced to corroborate the alleged bleeding injury. Along with the said abducted Ram Sahay. the accused want towards a village called Bahadurpura. In the evening, before Bahadurpura, this gang stopped at the well of one Ganpat. From there, on 05-02-2000 at about 4 P.M. these miscreants abducted the son of Ganpat namely Ramaji and a four year old child namely Govind. Ramji was tied up, and the child was handed over to Ram Sahay. The aforesaid second abduction is alleged to have been witnessed by two ladies, namely, Munnidevi (PW-8) and Rajkumari (PW-21). Rajkumari (PW-21) was assaulted with the butt of guns. No injury report is alleged and none has been produced in evidence These ladies were then locked up by the miscreants inside a room near the well from where the second abduction took place. Thereafter the gang proceeded with these three abducted persons towards the village. One Sukkhe alias Sukhram (PW-7) who was also abducted either from the spot of second abduction or from some place on the way to the village and was also taken along with gang. Thus the total number of abductees became 4. In the meantime, the two ladies Munnidevi (PW-8) and. One Sukkhe alias Sukhram (PW-7) who was also abducted either from the spot of second abduction or from some place on the way to the village and was also taken along with gang. Thus the total number of abductees became 4. In the meantime, the two ladies Munnidevi (PW-8) and. Rajkumari (PW-21) broke a wall of the room, came out and went to the village and gave information about the abduction. On receiving this information, one of the deceased namely Suraj along with his 306 bore rifle rushed from his house where he had come for food. He reached the spot of the incident (where the two murders took place): There he was shot dead by the gang. Simultaneously, the abductee Ramaji was also shot dead by the same gang. This happened at about 5:30 P.M. The motive of the murders is alleged to be election rivalry with the accused Kripal etc. who got the murder committed through the gang of Ramesh Kushwah dacoit. This motive although mentioned in the FIR is not supported during the evidence. It may be mentioned here that the deceased Suraj was himself earlier a member of Ramesh Singh Kushwah gang of dacoits, but fell out later. 3. To continue with the prosecution story, simultaneously with Suraj, upon receiving the information of abduction, Kailash (PW-12) went to a temple where a religious function was going on in which 300-400 people were assembled from that village as well as from neighbouring villages. Kailash gave information about the abduction. Some of the people who had assembled at the function were armed. Upon receiving the information from Kailash, Arjun Singh (PW-10), Munnilal (PW-15), Vikram Singh (PW-16), Shambhu Singh (PW-11), Janak Singh (PW-17), Rajesh Singh (not produced as a witness), Jagram Singh (also not produced as witness) and some others rushed towards the well of Ganpat, from where the second abduction had taken place. These people heard the sound of firings when they reached the well of Dhanole Harijan. Thereupon these people proceeded to a field called "Tendua Wala Khet" from there they claim to have witnessed the two deceased Suraj and Ramaji being surrounded by gang and being shot dead, The villagers, who were armed, fired towards the dacoits but after murdering the two deceased the dacoits. moved towards these villagers whereupon these villagers retreated towards the village. The gang thereafter went away with the firearm of Suraj. moved towards these villagers whereupon these villagers retreated towards the village. The gang thereafter went away with the firearm of Suraj. A written report, which is called Dehati Nalish, was prepared, at 07:00 pm, and on that basis an FIR was registered at 09:05 pm. The Investigating Officer namely Shiv Singh Yadav (PW-22) along with other policemen reached the spot at about 09:00 pm and after registering the FIR camped on the spot because it had become dark. The inquest report of the dead bodies was prepared the next morning i.e. 06.02-2000 and the bodies were sent for postmortem examination, which was conducted at 10:30 A.M. on 06.02.2000. The Investigating, Officer prepared a site plan, collected the blood soaked and plain soil, recovered some used firearm cartridges, and after investigation submitted a charge sheet. The two other abductees namely Ram Sahai and Govind were later recovered by the police. How, when, from where and in what circumstances they were recovered is not disclosed. 4. Twenty two witnesses have been examined by the prosecution Ram Sahay (PW-3) is the person who was abducted first. He has been declared hostile by the prosecution. Omkar Singh (PW-9) and Jagram (PW-20) have also been declared hostile. Munni Singh (PW-1), Ramprakash (PW-2), Shatrughan Singh (PW-4) the Patwari, Rakesh Solanki (PW-5), Shiv Datta Sharma (PW-19) are formal witnesses. 5. S.K. Niranjan (PW-6) is the Medical Officer who has conducted the two postmortem examinations. He has stated that on the dead body of deceased Ramaji he found two bullet wounds of entry and one wound of exit. There was no blackening or tattooing on either of the two wounds. 6. On the dead body of Suraj, this Medical Officer has found 8 bullet wounds of entry, 5 wounds of exit and 7 injuries caused by a sharp edged weapon ranging from shoulder to the legs. 7. Sukkhe alias Sukhram (PW-7) has stated in his examination-in-chief that he had gone to the spot of the second abduction where the deceased Ramaji was collecting grass. The accused along with the gang leader Ramesh Dacoit came there and caught hold of Ramaji. The gang tied the hands of Ramaji and snatched the child Govind. This witness was also taken along by the gang, which then proceeded towards the village. When Suraj Singh was coming the accused hid themselves in the field on which Sarson (mustard) and Arhar crops were standing. The gang tied the hands of Ramaji and snatched the child Govind. This witness was also taken along by the gang, which then proceeded towards the village. When Suraj Singh was coming the accused hid themselves in the field on which Sarson (mustard) and Arhar crops were standing. When Suraj came close the accused shot him dead and also shot dead Ramaji. This witness hid himself overnight in the Sarson crop in the field and returned to the village the next morning i.e. 06-02-2000. In para 11 of his cross-examination, this witnesses says that when Govind, Ramaji were abducted by the dacoits no-one else was present except his Bhabhi '(sister-in-law) Rajkumari. (PW-21). Thus, this witness does not corroborate, rather detracts, the presence of other lady Munnidevi (PW-8). He reasserts this fact in para 16 of his cross-examination that at that time at the tubewell only Ramaji and his Bhabhi Rajkumari was there and no one else was there. Thus, he again excludes the presence of Munnidevi (PW-8). Further, in para 31 of his cross-examination he says that when he was going to the tube-well he came across the accused who had with them Ramaji (deceased) who was tied up and his nephew (the child). This statement is at substantial variance from his original stand that he had reached the tube-well and had witnessed the abduction or witnessed the people who were present there. The presence of this witness is not mentioned in the FIR. Munnilal Singh (PW-15) and Vikram Singh (PW-16) have both stated that the wife of Ramaji i.e. Rajkumari (PW-21) had come to the village from the tubewell and had told Suraj (deceased) that the gang of Ramesh Singh dacoit has abducted Ramaji and Govind (Child). There was no mention of Sukkhe alias Sukhram (PW-7). Shambhu Singh (PW-11) also in his statement, stays that information conveyed by Rajkumari (PW-21) and Chhoti Beti (PW-13) was regarding abduction of Ramaji and Govind. Thus Sukkhe (PW-7) is again missing from the list of abducted persons. Sukkhe alias Sukhram (PW-7) being the brother of Ramaji was not likely to have been omitted from the list of abducted persons by these closely related ladies, if the ladies had witnessed the abduction and had passed on the information about the same. The defence suggestion in the cross-examination was that this witness was introduced into the case subsequently on 07.02.2000. The defence suggestion in the cross-examination was that this witness was introduced into the case subsequently on 07.02.2000. Therefore, considering these factors, the evidence of this witness is little doubtful, but for the time being we are not expressing any opinion on his evidence, because the case will turn on the other factors which are mentioned in the later part of this order. 8. Regarding the second abduction, apart from aforesaid witness Sukkhe alias Sukhram (PW-7) there are two other witnesses, namely, Munnidevi (PW-8) and Rajkumari (PW-21), Munnidevi (PW-8) says that there were 20-25 people who committed the abduction of Ramaji and Govind. She saw the dacoits when they entered her house and at that time darkness had started setting in. This is most unlikely because the time was about 4 or at best 4:30 P.M. The subsequent murder took place at about 5:30 P.M. and there was full visibility even at that time according to PW-10 an alleged eye-witnesses of the murder who is the informant. On the other hand, Rajkumari (PW-21) specifically says in para 5 of her cross-examination that there were eight members in the gang which committed the abduction whom she names specifically. She says that she recognized these people. She also says that after the abduction when these people were leaving they themselves revealed their names, which is a little unlikely. There is a great difference between 8 named accused being mentioned by Rajkumari (PW-21) and 20-25 people being mentioned by Munnidevi (PW-8). 9. After this, we come to the main incident which is alleged to have been witnessed by Arjun Singh (PW-10) who is informant of the case. This witness names the accused and specifically attributes individual and detailed firearms in the hands of each of the accused. None of the accused are said to have been carrying any sharp edged weapon. Thus, the eyewitness account given by this witness is not consistent with the medical evidence regarding the 7 injuries caused by sharp edged weapons on the body of deceased of Suraj. Similarly, Shambhu Singh. (PW-11) who claims to be the other eyewitness also does not attribute any sharp edged weapon and on the contrary specifically says that only fire arms were being used. This again creates a doubt about whether this witnessed actually saw the incident. Similarly, Shambhu Singh. (PW-11) who claims to be the other eyewitness also does not attribute any sharp edged weapon and on the contrary specifically says that only fire arms were being used. This again creates a doubt about whether this witnessed actually saw the incident. The fact that as many as 7 injuries caused by sharp edged weapons were found on the body of the deceased, mentioned in the post mortem report and testified to by the doctor cannot be disputed. It is quite obvious from the nature of these injuries that they could not have been caused by a small weapon like a knife. After the shooting there was neither any motive nor any opportunity to anybody to have caused these kind of injuries. Therefore, if these eyewitnesses had actually witnessed the incident as alleged by them, these injuries should have been explained, even if the actual assault was not witnessed, but at least by attributing by some sharp edged weapon in the hands of at least one of the accused. 10. Moreover, Arjun Singh (PW-10) says that the police came to the village at around 09:00 pm. Similarly, Shambhu Singh (PW-11) also says in para 15 of his statement that the police came at around 9:00 p.m. 11. According to Arjun Singh (PW-10), his report (dehati nalishi) was scribed by the police after the police came to the spot. A copy of that report is Ex. P12. The investigating officer also says that this Dehati Nalish was scribed by him on the dictation of Arjun Singh (PW-10) at the place of incident. This would mean that the Dehati Nalish was scribed after 09:00 p.m. However, Ex. P12 mentions at the top that the time of that report is 07:00 pm. No explanation has been offered by the prosecution as to why this attempt was made by the police to ante-time the said report. The suggestion from the side of the defence is that the report was not lodged promptly because it could not be decided who should be implicated as accused. 12. In para 41, Arjun Singh (PW-10) has specifically stated that he had not prepared the report at 07:00 pm and that he is high school pass, and he cannot say why 07:00 pm has been mentioned by the Investigating Officer in the report (Dehati Nalish). 12. In para 41, Arjun Singh (PW-10) has specifically stated that he had not prepared the report at 07:00 pm and that he is high school pass, and he cannot say why 07:00 pm has been mentioned by the Investigating Officer in the report (Dehati Nalish). This witness also says that at 5:30 p.m. i.e. the time of the incident, darkness was not setting in and everything was visible clearly. In para. 3 of his examination-in-chief this witness says that the accused had surrounded the two deceased Suraj and Ramaji from all sides and were shooting them. However, in the site plan prepared by the investigating officer Ex. P-6, the distance between the places where the two dead bodies were found is mentioned as 68 paces, which means more than 100 feet. This distance obviously must have been measured by the Investigating Officer and there is no reason to doubt the same. The number and kind of injuries found on the bodies of deceased make it improbable that any of the deceased could have moved after being shot. It would be difficult for 20-25 people to surround from all four sides the two deceased if they are standing 100 ft apart. The eye witnesses do not says that the accused were in two separate groups. But far more important is another factor. It has been mentioned above that after abducting the deceased Ramaji his hands were tied up by the gang, and then the gang proceeded towards the village. It is not the case of any of the witnesses that the hands of Ramaji were untied on the way. Indeed if the gang was moving with the 4 abductees towards the populated area of a village, there would be no occasion to untie the hands of Ramaji. Further, Munnilal Singh (PW 15) has stated in para 7 of his cross-examination that his brother Ramaji had been shot with his hands tied behind his back. However, when the dead body of Ramaji was found it was not tied up. This again raises a doubt whether the incident was actually witnessed by these alleged eyewitnesses. 13. In para 31, Arjun Singh (PW-10) says that he and his companions, some of whom were armed, did not retaliate by firing towards the dacoits. But in. However, when the dead body of Ramaji was found it was not tied up. This again raises a doubt whether the incident was actually witnessed by these alleged eyewitnesses. 13. In para 31, Arjun Singh (PW-10) says that he and his companions, some of whom were armed, did not retaliate by firing towards the dacoits. But in. para 43 he says that from his side Rajesh Baghel Jagram Singh, Janak Singh Baghel, Munnilal Singh, Shambhu Singh and Vikram Singh fired at the dacoits. He also says in the same paragraph that they fired about 25-30 rounds at the dacoits but the Police did not recover the empty cartridges. This story of return firing is corroborated in para No. 19 and 20 of the statement of Shambhu Singh (PW-11). 14. Taking up the next issue, Shambhu Singh (PW-11) says that he had gone to the police to inform them. In para 15 of his statement he says that he got report scribed in the village and thereafter he went to the police to inform them along with his brother (Arjun Singh PW-10). However, in the same paragraph, he says that the report was written after the police had taken away the two dead bodies. He reiterates that no report was lodged before that. He says in the same paragraph that he and Arjun Singh (PW 10) had got the report lodged after going to the police station. This discrepancy cannot be ignored as minor, because this witness Shambhu Singh (PW-11) becomes more specific in para 27 of his statement where says that after about one hour of the incident he went to his house took the motorcycle and then went to the police station with Arjun Singh (PW-10). He further says that the police station is about three miles from his village. He further says specifically that they reached the police station at about 08:00 pm. He then says that the report was lodged after the post mortem was done. He continues to say that the report was lodged jointly by him and Arjun Singh (PW-10), and again reiterates that the report was lodged at the police station. However, this is in direct conflict with the evidence of Arjun Singh (PW-10), who is the informant. PW-10, says in para 5 of his statement that the police had come to the village at 09:00 pm and Ex. However, this is in direct conflict with the evidence of Arjun Singh (PW-10), who is the informant. PW-10, says in para 5 of his statement that the police had come to the village at 09:00 pm and Ex. P-12 (Dehati Nalish) was scribed by the Police there. 15. The investigating officer Shiv Singh Yadav (PW-22) states in the very first paragraph of his examination in chief that he was the scribe of the Dehati Nalish, Ex. P-12. In para 20 of his statement, he states that he cannot say at what time and from what source the information of offence was received by him. He says that he cannot even make a rough assessment of the same. He says in para 21 of his statement that he reached the spot of the incident straightway. Strangely, he further says in the same paragraph that how he came to know at what place the incident had occurred, he cannot say without looking into the case diary. He also states in the same paragraph that after him his senior officers including the Superintendent of Police had reached the spot. This is corroborated by Vikram Singh (PW-16) who says in para 20 of his statement that the Superintendent of Police (S.P.) had reached the spot. This witness says that till the S.P. had reached the spot no report was written. He makes a vital admission in the same paragraph 20 where he says that the S.P. and other Police had said that the report could be got written later. In para 21 of the statement of this witness be says that the police had taken away dead bodies to the village and after that report was lodged. Although he denies the suggestion that the report was not lodged immediately because the victims' side were not able to decide against whom the FIR should be lodged. But the fact remains that the report was not lodged till the S.P. had come to the spot. According to the para 21 of the statement of Investigating Officer (PW-22), the Superintendent of Police came to the spot because PW-22 gave information on wireless from the village. But the fact remains that the report was not lodged till the S.P. had come to the spot. According to the para 21 of the statement of Investigating Officer (PW-22), the Superintendent of Police came to the spot because PW-22 gave information on wireless from the village. In the same para 21 he says that even before the senior officers arrived he had started the proceedings of the investigation and in para 22 he says that the first thing he did after reaching the spot was to get the Dehati Nalish scribed. He also says that the person who dictated the Dehati Nalish (i.e. Arjun Singh PW-10) had not come to the police station to give information. Thus, again, there is vital contradiction. Shambbu Singh (PW-11) says that he and Arjun Singh (PW-10) went on motorcycle and informed the police at about 08:00 after which the police came to the spot while the investigating officer specifically says that Arjun Singh (PW-10, informant) had not gone to the police station to give information. Further, according to the investigating officer, he started the investigation proceedings even before the senior officers came to the spot, and the first step of the investigation, according to the investigating officer was getting the Dehati Nalish written. But according to Vikram Singh (PW-16) Dehati Nalish was not written till the S.P. had come, and that the S.P. and other police officers said that the report could be lodged later. With this state of affairs, the attempt by the police to push back Dehati Nalish to an earlier point of time of 07:00 p.m. appears to be a manipulation to convey an impression that the names of the accused were disclosed shortly after the incident which is alleged to have taken place at about 05:30 p.m. The circumstances, as transpiring from the evidence of the witnesses, indicate that the actual FIR was not written till much after 09:00 p.m. The Investigating officer reached the spot at 09:00 p.m. He then gave information on wireless because of which the S.P. came. This obviously must have taken considerable time. Therefore, not only time of 07:00 pm of Dehati Nalish becomes false but also the time of FIR mentioned as 09:05 pm also becomes almost impossible. This obviously must have taken considerable time. Therefore, not only time of 07:00 pm of Dehati Nalish becomes false but also the time of FIR mentioned as 09:05 pm also becomes almost impossible. If the Dehati Nalish and the FIR was not lodged at the aforesaid times, then the time when it was lodged i.e. whether it was lodged shortly thereafter or on the next morning when the inquest report was being prepared cannot be determined. If the FIR was so belated and ante-timed, in a case which initially started as a kidnapping by a gang of dacoits, which obviously would have been for ransom as no other reason is brought out, then the whole story of murders having been committed or having been got committed because of election rivalry by the named accused is also not free from doubt. 16. Thus the Dehati Naalish is ante-timed. The time of FIR is highly doubtful. The eye-witness account is inconsistent with the medical evidence on the point of as many as 7 injuries caused by sharp edged weapon. The hands of the deceased Ramaji were not found tied when his dead body was found. All this creates serious doubt whether the incident was at all witnessed by the alleged eye-witnesses. The case begins as abduction for ransom by a gang of dacoits. Excepting pure dacoits, persons well known to the victims, and more importantly well known to witnesses do not abduct for ransom in the presence of witnesses who are left alive and locked in a room, and who can report the offence and the complicity. The basic prosecution story that due to election rivalry accused Kripal etc. had got the murder committed through the Ramesh dacoit gang seems a little improbable, because the enemity was not with any of the 4 abducted persons, and if the dacoits had gone to the village to commit murder they are unlikely to have combined the same with the 4 kidnappings which would slow down their movement and escape. The defence theory appearing from the cross examination is that it was a case of abduction and murder by a known gang of dacoits, and the accused were implicated in the belated and ante-timed reports, prepared after due deliberations. The defence theory appearing from the cross examination is that it was a case of abduction and murder by a known gang of dacoits, and the accused were implicated in the belated and ante-timed reports, prepared after due deliberations. Yet another defence theory, although not very explicit, is that it was a case of police encounter of the dacoits with the police party posted in the village for protection against the terror of the Ramesh Kushwah gang, in which an, innocent victim (abductee) was killed. This latter theory is based upon the facts that when Suraj was 'rushing' to the place of incident, he would not have concealed himself because he was only informed about the abduction from the well of Ganpat, and as admitted by them none of the two ladies PW-8 and PW-21 saw in which direction the dacoits went after the abduction. Thus there was no way that Suraj could have known that the dacoit gang would be present so close to the village, at the place of murders. Similarly the dacoits would also not have known that the two ladies had escaped and reported the abduction causing Suraj to come there. That being the position the dacoits would not have found sufficient time to conceal themselves among the crop in the field and ambush Suraj. Therefore the defence suggestion that the dacoits concealed themselves because they saw a police jeep coming. The personal visit of the S.P. at the spot at such late night hours is also more probable in the case of a police encounter resulting in the death of an innocent person, rather than in a case of plain (though double) murder. Considering all the above circumstances, we are of the opinion that the prosecution has not been able to prove beyond reasonable doubt that the accused/appellants were involved in the matter. 17. Accordingly, these appeals are allowed and the appellants are acquitted. If they are on bail, they need not surrender. Their bail bonds and sureties are discharged. If they are in jail they will be set at liberty unless wanted in some other case. Before parting with the case we may point out that the investigation and the site plan prepared in this case is not very satisfactory. If they are on bail, they need not surrender. Their bail bonds and sureties are discharged. If they are in jail they will be set at liberty unless wanted in some other case. Before parting with the case we may point out that the investigation and the site plan prepared in this case is not very satisfactory. The State Government may consider advising the investigating officers on the following points: (a) while preparing a site plan (which may not be to scale) the Investigating Officers must show or mention the location of all places relevant to the crime, as appearing from the FIR and eye witness account, along with the direction and approximate distance of such places from other relevant places. Relevant places would include the place/places of incident/incidents, the routes taken by the victims and accused, the places from where recovery has been made etc. and of course the police station and hospital where injuries are examined and/or post mortem examination was done. For example in this case the place from where the second abduction took place i.e. well of Ganpat, the temple etc. should have been shown or mentioned along with distances. (b) The terrain etc. should also be described. For example in this case the I.O. should have inspected and reported whether he found the wall of the room broken from where the two ladies PW-8 and PW-21 claim to have escaped. It should also have been mentioned whether crop was standing on the fields surrounding the place of murders, and how high the crop was. For this purpose let a copy of this order be sent to the Director General, of police by the Principal Registrar.