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2013 DIGILAW 910 (MP)

Vishnuprasad S/o Jagannath v. State of M. P.

2013-08-05

M.C.GARG, SHANTANU KEMKAR

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JUDGMENT : M.C. GARG, J. 1. This judgment shall dispose of the aforesaid two Criminal Appeals which have been filed by the appellants being aggrieved of judgment delivered by Additional Sessions Judge, Dewas in Sessions Trial No. 60/2002 dated 22nd of December, 2003, whereby all the aforesaid accused/appellants have been convicted under sections 302 read with sections 149 and 148 of Indian Penal Code and have been sentenced to undergo life imprisonment with fine of Rs. 1000/- each in default of payment of fine, to further undergo R.I for two years each under section 302/149 of Indian Penal Code and one year R.I each under section 148 of Indian Penal Code. The appellants were sent for trial along with accused Chhogalal, Ghasiram, Dinesh and Guddu who were acquitted by the trial Court as per the impugned judgment, whereas the present appellants have been convicted for the offences as stated above and have been sentenced with punishment imposed upon them. 2. The prosecution commenced on the basis of information given to police by PW-9 Rameshwar Patel on 21st of September, 2001 at about 1.10 p.m. According to the information, the incident had occurred at about 11.30 a.m. on the same day. The information was given at police station - BNP, Dewas and was recorded by SHO , Mr. Anis Khan of police station, who appeared as PW-16 in trial. The information given by Rameshwar Patel is as under: xxx xxx xxx 3. As stated above, the FIR was recorded by Mr. Anis Khan who then commenced the investigation by coming to the place of incident. After reaching to the spot, Mr. Anis Khan recorded the statements of complainant Rameshwar Patel, witness Bheru and Suresh and sent the dead-body of deceased Radheshyam for post-mortem to M.G. Hospital, Dewas. Statement recorded under section 161 of Cr.P.C. given by Rameshwar Patel is Ex.D/2 while that of Bheru is Ex.D/3. 4. Post-mortem of the dead-body was conducted by PW-12 Dr. N.K. Saxena on 21st of September, 2001 at 4.10 p.m. Bullet could not be taken out from the body of the deceased, therefore, he referred the dead-body to M.Y. Hospital, Indore for post-mortem after taking out the bullet. 4. Post-mortem of the dead-body was conducted by PW-12 Dr. N.K. Saxena on 21st of September, 2001 at 4.10 p.m. Bullet could not be taken out from the body of the deceased, therefore, he referred the dead-body to M.Y. Hospital, Indore for post-mortem after taking out the bullet. The bullet taken out from the dead-body was also seized by police vide Ex.P/32 and the sword which was found in the dead-body of Radheshyam as well as his clothes were also taken into possession by the investigating officer from M.G. Hospital, Dewas vide Ex.P/33. Mr. Anis Khan PW-16, the Investigating Officer also recorded the statement of witnesses Dilip and Madan on 23rd of September, 2001. Statement of Madan under section 161 of Cr.P.C. is Ex.D/1. It may be observed here that as far as Dilip is concerned, he has not been examined by the prosecution. 5. Thereafter, Mr. Anis Khan PW-16 arrested accused Chhogalal, Dharmendra, Guddu, Mahesh, Mukesh, Dinesh and Shankarlal. On the basis of memorandum given by the accused persons on 29th of September, 2001, swords, clothes, ballam, country-made pistol and hockey were recovered. Seized swords, revolver etc. were sent for examination to FSL, Sagar. 6. After completing the investigation, challan was filed before the JMFC, Dewas, which was then committed to Sessions Court, Dewas. Charges framed against the accused/appellants were denied by all of them and claimed innocence. After trial, the aforesaid accused/appellants were convicted and sentenced as mentioned above and the other accused persons were acquitted from the charges framed against them, hence the present appeals. 7. In nutshell, the case of the prosecution as stated in Para 3 of the impugned judgment is as follows: xxx xxx xxx 8. As per the challan filed in this case by the prosecution, the prosecution cited four witnesses namely, PW-7 Madan, PW-9 Rameshwar Patel, PW-10 Suresh and PW-11 Bheru as eye-witnesses. One Dilip whose name was mentioned in the FIR, has not been examined by the prosecution. No case has been set up by the appellants that if Dilip would have been examined, different story might have come. He has also not been summoned as defence witness by them. 9. On the basis of the statements made by Bheru and Suresh, learned Sessions Judge Judge found corroboration about the presence of Madan and Rameshwar at the spot having seen the incident. He has also not been summoned as defence witness by them. 9. On the basis of the statements made by Bheru and Suresh, learned Sessions Judge Judge found corroboration about the presence of Madan and Rameshwar at the spot having seen the incident. While Madan and Rameshwar have supported the case of the prosecution, Suresh and Bheru have not supported the case of the prosecution in toto, yet part of their statements has been relied upon by the learned Sessions Judge while coming to the conclusion that the appellants committed the offences as stated above and convicted them accordingly. There is no cross-examination regarding the portion of their statements relied upon by the trial Judge in believing the presence of PW-7 Madan and Rameshwar PW-9 for placing reliance upon the statements of Madan and Rameshwar about the incident. 10. Post-mortem on the dead-body of the deceased was conducted by PW-12 Mr. N.K. Saxena. In his deposition, he has stated as under: From the aforesaid deposition, it is clear that death of the deceased was homicidal. The injuries have been caused with lathies and sharp edged weapon like swords and by using fire arm. 11. Learned Sr. Counsel appearing for the appellants in Criminal Appeal No. 16/2004 submitted that neither Rameshwar nor Madan are reliable witnesses. According to him, there are number of deficiencies in the statement of Rameshwar which established that Rameshwar had not seen the incident. It is submitted that his statement has also not been corroborated by Madan. Moreover, Ex.P/27 i.e. FIR is ante timed FIR and in fact, delayed FIR, because if one look to Ex.P/75 filed along with the charge-sheet, which shows that the incident had occurred before 1 O'clock, in that document, exact time of the incident has not been mentioned. In case, the FIR would have been registered prior to creation of Ex.P/75, there was no reason as to why exact time of the incident could not have been mentioned therein. It is also submitted that even in the letter sending dead-body of the deceased for post-mortem, the name of Rameshwar is not there even though, he was near relatives of the deceased. He is also not the witness of Safina Form. Number of FIR also does not find mentioned in the document Ex.P/75. As such, it is submitted that Rameshwar is only a chance witness. He is also not the witness of Safina Form. Number of FIR also does not find mentioned in the document Ex.P/75. As such, it is submitted that Rameshwar is only a chance witness. Moreover, he is the real brother of the deceased and was enimically disposed towards accused persons inasmuch as appellant Mahesh contested the election against him. His conduct is not natural as after the incident, he neither informed any relative or family member of the deceased living nearby nor did he call anyone for assistance. He did not help the deceased from the assailant. Moreover, the statement is also not corroborated by PW-7 Madan. 12. It is also submitted that even the statement of PW-7 Madan is also not free from doubt, inasmuch as his conduct casts serious doubt on his version. His statement has been recorded on 23rd of September, 2001 whereas the incident had occurred on 21st of September, 2001. There is discrepancies about the injuries sustained by him, inasmuch as he says that the injury was caused on the right foot whereas as per the M.L.C. Ex.P/64, the injury was caused on the left foot. Moreover, the statement made by Madan PW-7 is also contradictory to his statement recorded under section 161 of Criminal Procedure Code. It is also submitted that Madan was also examined under section 164 of Cr.P.C. just to pressurize him so as to compel him to narrate the story of the prosecution. It is also submitted that he did not inform the police about the incident soon after the incident and in fact, was not available to the police for recording his statement at least for two days after the incident. 13. Learned counsel appearing for appellant Vishnuprasad also stated that the statement made by Madan about hockey blow given by Vishnuprasad on his motorcycle has been contradicted by him in his cross-examination when he has stated that the motorcycle fell down because of exercising break. Learned counsel has also submitted that the appellant at the most was having lathi. He only gave blow of lathi on the motorcycle and therefore, his case is similar to other accused persons who have been acquitted. He therefore, claim parity with them. Learned counsel has also submitted that the appellant at the most was having lathi. He only gave blow of lathi on the motorcycle and therefore, his case is similar to other accused persons who have been acquitted. He therefore, claim parity with them. He has also made reference to the judgment of Hon'ble Supreme Court in the matter of Vadivelu Thevar vs. State of Madras, AIR 1957 SC 614 , statement of PW-7 Madan was not wholly reliable, inter-alia for the following reasons: (i) That, the incident occurred on 21st of Sept, 2001 and the statement of Madan was recorded after two days which creates serious doubt on the testimony of Madan since no plausible explanation was given by the Investigating Officer. (ii) That witness Madan admitted in Para 21 that he did not disclose the incident to anyone and he also did not lodge any report. In Para 31, he also admitted that he did not disclose the incident till his statement recorded by the police hence he was silent over the issue for two days. (iii) That the witness Madan has stated in para 3 that he sustained injury at the right leg but the same was not corroborated by the medical evidence. PW-15 Dr. M.B. Agrawal has stated in Para 1 that the injured Madan sustained injury on the left leg and the injury was within 12-14 hours from the date of examination. Admittedly Madan was medically examined on 23-9-2001 at about 3.00 p.m. and the incident was occurred on 21-9-2001 at about 11.00 a.m. hence the injuries were sustained by Madan much after the incident and it shows that this witness was not present on the spot at the time of alleged incident and he is a got up incident. (iv) That in Para 27 of his testimony the witness says that the indicator of motor bike was broken prior to incident but as per spot inspection report Ex.P/75 Column No. 18 the broken pieces of indicator of motor bike was found by investigator. (v) That the said witness has stated at one place i.e. Para 3 that the appellant Vishnu hit the wheel of motor bike hence the bike and rider fell down but in Para 30, he clearly admit that he applied the brakes of the motor bike hence motorcycle and rider were fell down. (v) That the said witness has stated at one place i.e. Para 3 that the appellant Vishnu hit the wheel of motor bike hence the bike and rider fell down but in Para 30, he clearly admit that he applied the brakes of the motor bike hence motorcycle and rider were fell down. Therefore, it is clear from the testimony of Madan that he is not wholly reliable witness therefore corroboration is required on the material particulars and there is no corroborative evidence against the present appellant. (vi) That there are material omission in the testimony of Madan and in Paras 11 to 13, 15 and 19 he admits this facts. 14. Learned Govt. Pleader on the other hand has submitted that keeping in view the statements made by PW-9 Rameshwar and PW-7 Madan as well as the statements made by Suresh and Bheru as also keeping in view the investigation conducted by Mr. Anis Khan, the prosecution has been able to prove the case beyond reasonable doubt. 15. To appreciate the case of the prosecution and the reasoning given by learned Sessions Judge for the impugned judgment, it is necessary to look into the statements given by two eye-witnesses namely PW-9 Rameshwar Patel and PW-7 Madan. However, before we look to the statements made by Rameshwar and Madan, we may also refer to the statement made by Bheru PW-11 who has deposed as under: xxx xxx xxx 16. Even though this witness has not fully supported the case of the prosecution, but part of his statement gives credence to the story of the prosecution to the extent that deceased Radheshyam was going with Madan on motorcycle on the date of incident from Baloda towards Dewas. Thereafter, Radheshyam was murdered. The statement also shows that Rameshwar did reach the place of incident. This witness also found Radheshyam dead. The motorcycle of Madan has been found at the spot, even in the photograph taken by PW-14 Rajendra Kumar Jaiswal. Defence has not been able to establish as to how this motorcycle reached at the spot if Madan had not taken it with Radheshyam who was having a paralysis in his hand and was unable to drive the motorcycle himself. Thus, from his deposition, it may be inferred that before the death of Radhyeshyam, he had gone upto the place of incident with Madan on motorcycle. Rameshwar Sarpanch was also nearby. Thus, from his deposition, it may be inferred that before the death of Radhyeshyam, he had gone upto the place of incident with Madan on motorcycle. Rameshwar Sarpanch was also nearby. Bheru had also gone towards the place of the incident and saw 8-9 persons causing injuries to Radheshyam. This portion of his statement also supports the case of prosecution as mentioned in the FIR. However, he could identify only two of them namely Mahesh and Mukesh. 17. Now, coming to the statement of Suresh PW-10, we find that he is completely hostile. He has stated as under: xxx xxx xxx 18. It is well settled that testimony of even hostile witnesses can be used for the purpose of finding corroboration and may be part of his statement, if that part is admissible. Statement of PW-7 Madan that he had discussion with Radheshyam about giving of money to labourer before the death of Radheshyam, is reliable. It further supports the case of the prosecution that deceased Radheshyam had paralysis in his hand which was the reason for PW-7 Madan having taken him on motorcycle upto the place of incident. 19. Now, we will examine the statement of Rameshwar PW-9 who has deposed as under: xxx xxx xxx 20. He has also deposed that he made a report to police about this incident which is Ex.P/27. His further statement also gives the motive of murder of Radheshyam that deceased Radheshyam had been working in the Gram Panchayat Election for this witness and accused Mahesh was one of the candidate opposite to him in that election. Thus, later part of his statement also provides motive for commission of crime by the appellants. 21. Now, coming to the statement of Madan PW-7, he has deposed as under: This statement made by PW-7 Madan did corroborate the presence of PW-9 Rameshwar at the spot. He had come to the spot little later. 22. As far as the impugned judgment is concerned, the trial Court has believed the statements of both these witnesses. To appreciate the reasons for the admissibility of the statement made by the two witnesses, we will have to refer some portion of the impugned judgment. In this regard, Para 49 of the impugned judgment is relevant which is reproduced hereunder for the sake of reference: xxx xxx xxx 23. To appreciate the reasons for the admissibility of the statement made by the two witnesses, we will have to refer some portion of the impugned judgment. In this regard, Para 49 of the impugned judgment is relevant which is reproduced hereunder for the sake of reference: xxx xxx xxx 23. As far as Rameshwar PW-9 is concerned, his statement has also been discussed by the trial Court in Para 32 of the impugned judgment which is reproduced hereunder for the sake of reference: xxx xxx xxx 24. In Para 34 of the impugned judgment, the trial Judge has also observed that: xxx xxx xxx 25. Aforesaid paragraph also corroborates the statement of PW-7 Madan that PW-9 Rameshwar had reached the spot, may be little later after the commencement of the attack on the deceased Radheshyam and proves the presence of Rameshwat at the spot. However, this does not mean that Rameshwar had not seen the incident. 26. Aforesaid portion of the impugned judgment is in the line with the deposition of witnesses namely PW-7 Madan, PW-9 Rameshwar and PW-11 Bheru. Role of Vishnuprasad has been specifically described by PW-7 Madan in his deposition. He has also referred to user of fire arm by Shankar. PW-11 Bheru has referred to the presence of Mukesh and Mahesh. Presence of accused Dharmendra is corroborated on account of seizure of his motorcycle from the spot as also from the photograph taken by PW-14 Rajendra Kumar Jaiswal. 27. The statement of Madan also belies the submissions made by learned counsel appearing for appellant Vishnuprasad, in as much as, not only in the examination-in-chief, he has deposed about the role of Vishnuprasad in having caused hockey blow on the motorcycle, but also, in Para 32 of his cross-examination, where he has stated that: xxx xxx xxx Regarding indicator of the motorcycle, he has stated in Para 25 of his cross-examination that: xxx xxx xxx 28. In any event, nothing has been shown to us by learned Counsel appearing for the appellant Vishnuprasad that any suggestion was given to PW-7 Madan that accused Vishnuprasad was not at the spot at the relevant time. It is well settled that somebody can take a plea in defence contrary to what has been stated by the witness, unless such stand is corroborated with cross-examination of the witness on that point. It is well settled that somebody can take a plea in defence contrary to what has been stated by the witness, unless such stand is corroborated with cross-examination of the witness on that point. His conviction for the offence with the aid of section 149 of Indian Penal Code is therefore, justified. 29. Dealing with the submissions made by counsel for the accused persons that FIR Ex.P/27 is a concocted document and the same has been recorded with manipulation and that no case is made out against the appellants, the trial Court has discussed the evidence in Para 38, 39 and 40 of the impugned judgment, which are reproduced hereunder for the sake of reference: xxx xxx xxx 30. Even otherwise, it is nobody's case that the mobile unit was informed about the incident by somebody else and not by Anis Khan as stated by him. As regard to delay in recording the statement, PW-7 Madan has very categorically said that he became afraid after the incident and had gone to his brother-in-law's house where he stayed upto 23rd of September, 2001. This is a very natural conduct of witness and will not belie his statement. 31. As regard Rameshwar Patel PW-9 having not signed the discloser statement and the memorandum of discloser while sending the dead-body of the deceased for post-mortem, Rameshwar Patel in his cross-examination has clearly stated that at the advice of Anis Khan PW-16 he remained in police station after informing the police about the incident. Moreover, as observed by learned Sessions Judge in Para 18 of the impugned judgment, at the time of sending the dead-body of the deceased, Rameshwar Patel was not present. There is no cross-examination on this point. It is also a matter of record that as far as opinion given by doctor who conducted post-mortem and also give opinion with regard to cause of death, there is absolutely no cross-examination by the appellants. 32. We have already examined Paras 32, 34 and 38 to 40 of the impugned judgment which shows as to how the trial Court had dealt with the statement of Rameshwar Patel and Madan. We have also examined the statements of these witnesses in the light of statements made by them under section 161 of Cr.P.C. and find that what they have stated, is in line with the case of prosecution. We have also examined the statements of these witnesses in the light of statements made by them under section 161 of Cr.P.C. and find that what they have stated, is in line with the case of prosecution. Minor contradictions in their deposition made in the Court viz-a-viz the statement made by them under section 161 of Cr.P.C. does not make the witness unreliable. 33. It is also relevant to take note of discussions made in Para 41 of the impugned judgment by the trial Court wherein reference has been made to the judgment of Hon'ble Apex Court in the light of some contradictions in the statements of witnesses under section 161 of Criminal Procedure Code. It has been observed by the trial Court that: xxx xxx xxx 34. Referring to the contradictions in the statement made by Rameshwar Patel under section 161 of Cr.P.C. and his deposition in the Court, the trial Court has observed as under: xxx xxx xxx 35. With respect to contradictions about the injuries sustained by PW-7 Madan in his left or right leg, the trial Court has observed that such contradiction was not material in the light of MLC Ex.P/64 and the statement made by Dr. M.B. Agrawal who appeared as PW-15. We find no infirmity in the approach of the learned trial Judge about appreciation of evidence. 36. One thing which is relevant and about which reference has also been made by the learned trial Court to give strength to his conclusion is the statement made by PW-14 Rajendra Kumar Jaiswal who was the photographer and has taken photographs of the place of the site. As per his deposition, he has taken 28 photos, out of which, one of the photograph is with respect to motorcycle belonging to Radheshyam bearing Registration No. MP-09-JD-3097, on which Madan had taken Radheshyam to the place of incident where the motorcycle fell down because of hockey blow caused upon the front wheel. The reason for Madan having driven the motorcycle of Radheshyam was that Radheshyam was having paralysis. The above mentioned motorcycle has been shown in the photograph taken by PW-14 Rajendra Kumar Jaiswal. The motorcycle has been recovered from the spot by police vide Ex.P/5. 37. In this regard, we have already discussed the evidence of PW-7 Madan and PW-9 Rameshwar. The reason for Madan having driven the motorcycle of Radheshyam was that Radheshyam was having paralysis. The above mentioned motorcycle has been shown in the photograph taken by PW-14 Rajendra Kumar Jaiswal. The motorcycle has been recovered from the spot by police vide Ex.P/5. 37. In this regard, we have already discussed the evidence of PW-7 Madan and PW-9 Rameshwar. From the statement made by Madan, presence of appellants at the spot is fully established whereas the presence of accused persons who have been acquitted by the trial Court stands only mentioned in the statement of PW-9 Rameshwar and is not supported by Madan. 38. In this regard, it may be observed, as far as the name of Mahesh and Mukesh is concerned, even PW-11 Bheru saw them at the spot armed with swords and had seen them running from the spot, after the injuries were caused to Radheshyam who in fact had been surrounded by 8-9 persons. 39. It is true that PW-11 Bheru has not identified Vishnuprasad amongst the appellants, but he could have intentionally made false statement about the identification of Vishnuprasad as one of the accused, merely on that basis, presence of Vishnuprasad on the spot cannot be ruled out, particularly because Vishnuprasad had given blow on his motorcycle which is the reason, the motorcycle fell down and it is therefore, Radheshyam who had accompanied Madan with motorcycle, injured and murdered by the appellants who included Mahesh, Vishnuprasad, Shankar and Dharmendra Patel. Presence of appellant Dharmendra is substantiated on account of his motorcycle having found at the spot by the photographer and which motorcycle has also been seized from the spot. 40. In these circumstances, the trial Court has rightly observed that there is no infirmity in the statement of Madan as recorded vide Ex.D/1 and his statement recorded in Court. 41. As regard the aspect of enmity between PW-7 Madan and the appellants, the trial Court has observed that the submission made on behalf of the appellants that Madan belonged to Rameshwar Patel's fraction and therefore, there was good reason for his telling lie to the trial Court makes no difference. In the impugned judgment dealing with the submissions, the trial Court has observed that in his testimony, PW-7 Madan has only mentioned about the presence of the appellants as assailants. He has not taken the name of other accused persons. In the impugned judgment dealing with the submissions, the trial Court has observed that in his testimony, PW-7 Madan has only mentioned about the presence of the appellants as assailants. He has not taken the name of other accused persons. His conduct as aforesaid itself belies the submissions of learned counsel for the appellants. Paras 52 and 53 of the impugned judgment are relevant for the aforesaid purpose which read as under: xxx xxx xxx 42. Learned counsel appearing of the appellants has relied upon the judgment delivered in the case of State of U.P. vs. Raja Ram and Others, (2010) 1 SCC (Cri) 702, on the strength of which judgment, he claims acquittal of the appellants on parity. 43. We have already discussed the seizure of motorcycle belonging to Madan from the spot. There is also seizure of another motorcycle i.e. motorcycle bearing registration No. MP-11-B-2515. Ashiq Hussain who was the owner of the aforesaid motorcycle and had sold the same to appellant Dharmendra is also corroborated by other evidence available on record. As per the site plan Ex.P/33, this motorcycle has been shown near the bushes. Thee is no explanation from the accused persons as to how the motorcycle belonged to accused Dharmendra reached the place of incident. Seizure of two motorcycles and the photographs taken by PW-14 Rajendra Kumar Jaiwal also support the case of prosecution and gives strength to the submissions made by PW-7 Madan and PW-9 Rameshwar. 44. In view of the aforesaid, while presence of Dharmendra, Mukesh, Mahesh, Vishnuprasad, Shankar, who caused fire injury stands established in uncertain terms at the place of incident on the date of incident, presence of other accused persons becomes doubtful in the light of the statement made by PW-7 Madan. It is on that account, benefit of doubt has been given by the trial Court to them while acquitting them of the charges, but this will not give parity to the appellants so as to acquit them from the charges framed against them. 45. Considering all the facts of the case and the discussions as above held by the trial Judge in the impugned judgment as also on perusal of the records, we find no infirmity in the impugned judgment of the learned Sessions Judge, qua conviction of the appellants in this case sentencing them. 45. Considering all the facts of the case and the discussions as above held by the trial Judge in the impugned judgment as also on perusal of the records, we find no infirmity in the impugned judgment of the learned Sessions Judge, qua conviction of the appellants in this case sentencing them. We accordingly dismiss the criminal appeals filed by the appellants and uphold their conviction and the order of sentence passed by the learned Sessions Judge. A copy of this judgment be retained in the file of Criminal Appeal No. 16/2004.