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2013 DIGILAW 828 (MP)

Gulab Rao Nagle v. State of M. P.

2013-07-18

AJIT SINGH, B.D.RATHI

body2013
JUDGMENT B.D. Rathi, J. - The sole appellant Gulab Rao has been convicted for an offence under Section 302 of the Indian Penal Code (for short "the IPC") for committing the murder of Roshan on 193/2003) at 8 p.m. at Bhim Nagar, Bhopal and sentenced to undergo imprisonment for life with fine stipulation, while co-accused Lallu alias Vijay Singh, Guddu alias Ajay Singh and Bachhu alias Rajkumar, were acquitted of the offences charged with. The impugned judgment was passed by I Additional Judge, Bhopal in Sessions Trial No. 174/03 on 10/8/2004. 2. According to the prosecution case, in the wake of a quarrel of Roshan with appellant and Guddu Singh of Bhim Nagar in a marriage ceremony 5-6 days prior to the incident, on 19/3/03 at about 8 p.m., Lallu S/o Chain Singh and appellant came to Roshan's house and asked his mother Shakunbai (PW1) about him, on which Roshan answered that he was outside the house. Thereafter, on the pretext of entering into a compromise they took away Roshan with them. After some time, feeling anxious, Shakun Bai also came out followed by her son Kailash and daughter Sushila. In the street of Chokhelal Soni, she saw that some altercation was going on between Roshan, Phool Singh, appellant, Lallu and Bachhu and when they all reached near the house of Chokhelal, Lallu assaulted Roshan by Sword from behind due to which he fell down. Bachhu and two others caught hold of him while appellant repeatedly stabbed Roshan in his stomach by Chhuri (small dagger). Shakun Bai cried for help on which her son and daughter viz. Kailash and Sushila came there, but the assailants, with an intention to cause his death, kept on assaulting Roshan fearlessly and thereafter fled from the spot. Despite the alarm being raised by Shakun Bai, no one from the locality came forward for her help. According to Shakun Bai, at that time electricity was shut off but it was a moonlit night and with Lallu, appellant and Bachhu, there were two more boys of Bhimnagar aged between 20 to 25 years, whom she could identify by face. At that juncture, wife of Chokhelal, Shivcharan and others came there and in an Autorickshaw of one Irshad, she brought Roshan to 1250 Hospital where he was declared dead. Dehati Nalishi (Ex.P/1) was lodged at the Hospital at 9.45 p.m. by Shakun Bai. 3. At that juncture, wife of Chokhelal, Shivcharan and others came there and in an Autorickshaw of one Irshad, she brought Roshan to 1250 Hospital where he was declared dead. Dehati Nalishi (Ex.P/1) was lodged at the Hospital at 9.45 p.m. by Shakun Bai. 3. Autopsy was conducted by Dr. Ashok Sharma (PW4), who noticed, as many as, 5 incised wounds and 10 stab wounds mainly on the chest and abdomen of Roshan. Cause of death was shock and hemorrhage as a result of multiple stab injuries on the chest and abdomen. Weapons of offence viz. a dagger and a sword were seized from the appellant and Vijay Singh alias Lallu vide seizure memos (Ex.P/5) and (Ex.P/12) respectively. The Director of Medico Legal Institute vide his report (Ex.P/19), on examination of the said weapons of offence, opined that the injuries described in the post mortem report, could be caused by those. 4. During the trial, the appellant and three other co-accused pleaded not guilty to the charges and contended that they had been falsely implicated. 5. The trial court, on the basis of testimony of eye-witnesses Shakun Bai and Ramakant (PW2), has held the appellant guilty of committing the murder of Roshan and acquitted the other three above named co-accused persons. 6. Learned counsel on behalf of the appellant argued that the statements of eye-witnesses are not reliable because the prosecution has failed to prove that Shakun Bai and Ramakant were present on the spot. It was also submitted that on the same set of evidence three other co-accused were acquitted by the trial Court, whereas appellant was convicted without taking into consideration that important witnesses Kailash, Sushila, Phool Singh, Shivcharan and Prem Narayah Sharma were not examined by the prosecution. 7. On the contrary, learned Government Advocate, while making reference to the incriminating pieces of evidence on record, submitted that the conviction is well merited. He also argued that it is for the prosecution choice how to prove its case, therefore non examination of certain witnesses would not be fatal to the case of the prosecution. 8. Having regard to the arguments advanced by the parties, we have perused the evidence and material on record. 9. He also argued that it is for the prosecution choice how to prove its case, therefore non examination of certain witnesses would not be fatal to the case of the prosecution. 8. Having regard to the arguments advanced by the parties, we have perused the evidence and material on record. 9. The learned trial Court, after disbelieving the testimony of Shakun Bai and Ramakant, has acquitted co-accused persons on the ground that the corresponding injuries were not found in autopsy report, but at the same time, on the testimony of these two witnesses, has convicted the appellant. 10. It transpires from the record that the whole case of prosecution was doubtful from its inception i.e. lodging of Dehati Nalsihi (Ex.P/1), which was lodged by Shakun Bai. In this Dehati Nalishi, as well as, in para 27 of her deposition, it is mentioned that Lallu assaulted Roshan by Sword from behind due to which he fell down, but, such corresponding injury was not found during autopsy. Shakun Bai stated in para 2 that her son Roshan was caught hold by Guddu, but in Dehati Nalishi (Ex.P/1) name of Guddu has not been mentioned and instead of that it was mentioned that Roshan was caught hold by accused Bachhu and two other unknown persons. In paras 18, 19 and 20, she categorically denied her deposition regarding most of the important facts mentioned in Dehati Nalishi (Ex.P/1) and Police Statement (Ex.D/2). Similarly, she also said that before deposing, she had understood very well what to depose in the Court. In para 24 of her evidence, she has deposed that when she reached the Hospital, she had told the names of appellant and Lallu as the assailants to the Doctor, but this fact was neither mentioned in the MLC report nor corroborated by Dr. Ashok Sharma (PW4). Contrary to what has been mentioned in the MLC Report (Ex.P/18), she also deposed that Shivcharan had not taken Roshan to Hospital. From para 8 of her evidence, it is clear that Roshan used to quarrel with many persons and had a criminal history. Further, Shakunbai in paragraph 3 of her evidence has deposed that Ramakant had also taken Roshan to the Hospital in the Autorickshaw. It means that Ramakant was also present on the spot, but name of Ramakant has not been mentioned in the Dehati Nalishi. Further, Shakunbai in paragraph 3 of her evidence has deposed that Ramakant had also taken Roshan to the Hospital in the Autorickshaw. It means that Ramakant was also present on the spot, but name of Ramakant has not been mentioned in the Dehati Nalishi. Learned trial Court has disbelieved the testimony of Ramakant only in respect of acquitted co-accused, although his deposition, as eye-witness, should have been totally disbelieved by the trial Court on this ground. In the light of the aforesaid contradictions and omissions, evidence of Shakun Bai does not inspire confidence. 11. Prosecution has not taken any pain to search other two unknown boys who had also committed the crime as per the facts mentioned in Dehati Nalishi (Ex.P/1). Eye-witnesses, as mentioned in the Dehati Nalishi, Kailash, Sushila and Phool Singh were also not produced by the prosecution. As per MLC (Ex.P/18), Roshan was brought to the Hospital by Shivcharan from the spot, but Shivcharan has not been examined. Wife of Chokhelal who had come on spot was also not examined. Although, it was not necessary, yet looking to the facts and circumstances of the case, where witnesses produced in the Court deposed in an exaggerated manner with omissions and material contradictions, it was essential to examine the aforesaid witnesses to bring home the charge against appellant beyond reasonable doubt. 12. We are of the considered view that in the aforesaid premises, the whole case of the prosecution appears to be doubtful. Appellant could not have been convicted on the same set of evidence that formed the basis of acquittal of other co-accused. It is well settled that suspicion, by itself however strong it may be, is not sufficient to take place of proof and warrant a finding of guilt of accused. 13. Accordingly, the appeal stands allowed. Appellant is acquitted of the offence. He is in jail since 26.3.2003 i.e. for more than ten years. He be released forthwith if not required in any other case. Fine amount, if deposited, be refunded. Appeal allowed.