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2014 DIGILAW 1124 (MP)

Gajraj Singh v. State of Madhya Pradesh

2014-09-05

AJIT SINGH, N.K.GUPTA

body2014
JUDGMENT : N. K. GUPTA, J. Both the criminal appeals arise from a common judgment dated 7-12-1996 passed by Ist Additional Sessions Judge, Sehore Camp Ashta, District Sehore in ST No.108/1996 and therefore, both the appeals are decided by the present common judgment. 2. The appellant Sardar Singh has been convicted of offence punishable under Section 302 of I.P.C whereas, appellants Dilip Singh and Gajraj Singh have been convicted of offence punishable under Section 302 read with Section 34 of I.P.C and all of them have been sentenced to life imprisonment vide the aforesaid judgment. Being aggrieved with the aforesaid judgment the appellants have preferred the present appeal. 3. The prosecution— s case in short is that on 26.6.1996 the witnesses Chandar Singh (PW1), Devkaran (PW4), Manubai (PW5), Anita Bai and Geeta Bai along with the deceased Dhool Singh went to pick up stones from the field of Karan Singh situated at Village Mankund (Police Station Ashta, District Sehore). At about 2.00 p.m the deceased Dhool Singh went to a Bada to provide drinking water to his bullocks. After some time the witnesses heard the outcry of deceased Dhool Singh that he was being assaulted by the appellants Sardar Singh, Dilip Singh and Gajraj Singh. The witnesses Chandar Singh and Devkaran immediately rushed to the spot and Manubai, Anita Bai and Geeta Bai also followed them. On reaching the spot they saw the appellant Sardar Singh, sitting on the chest of the deceased Dhool Singh who, was lying on the ground and the appellants Dilip Singh and Gajraj Singh were throwing boulders on the deceased Dhool Singh. When the witnesses reached to the spot the appellants ran away from the spot. The witnesses found the deceased Dhool Singh to be dead. Manubai (PW5) wife of Karan Singh (PW3) and sister-in-law of Onkar Singh (PW6) went to Village Mankund to inform about the incident to Onkar Singh. Onkar Singh went to the spot and saw the body of the deceased Dhool Singh. Thereafter, he told the entire story to Chowkidar Gokul Prasad (PW2) and at about 5.00 p.m he left the spot for Police Station Ashta along with Gokul Prasad where Chowkidar Gokul Prasad lodged FIR Ex.P/4-A. The Police recovered the dead body of the deceased Dhool Singh from the spot and sent it for its post mortem. Dr. Thereafter, he told the entire story to Chowkidar Gokul Prasad (PW2) and at about 5.00 p.m he left the spot for Police Station Ashta along with Gokul Prasad where Chowkidar Gokul Prasad lodged FIR Ex.P/4-A. The Police recovered the dead body of the deceased Dhool Singh from the spot and sent it for its post mortem. Dr. B.B. Arya (PW8) performed the post mortem on the body of the deceased Dhool Singh and gave his report Ex.P/9. He found multiple fractures on his head especially on parietal and frontal bones. There was a depressed fracture on nasal bone and some teeth had broken which were found inside his mouth. In opinion of Dr. Arya, death of the deceased was homicidal in nature caused due to injuries sustained by him. After due investigation the charge sheet was filed before the JMFC, Ashta who, committed the case to the Court of Sessions and ultimately it was transferred to Additional Sessions Judge, Sehore Camp Ashta, District Sehore. 4. The appellants abjured their guilt. They did not take any specific plea in the case but they have stated that they were falsely implicated in the matter due to enmity between the parties. However, no defence evidence was adduced. 5. The learned Additional Sessions Judge after considering the prosecutions evidence convicted and sentenced the appellants as mentioned above. 6. During the pendency of this appeal the appellant Dilip Singh died on 28.6.2003 and vide order dated 11.3.2004 it was found that his appeal was abated. 7. We have heard the learned counsel for the parties at length. 8. In the present case the prosecution examined only three eye witnesses namely Chandar Singh (PW1), Devkaran (PW4) and Manubai (PW5). Anita Bai and Geeta Bai were named in the FIR as witnesses but not examined before the trial Court. Out of the aforesaid eye witnesses Devkaran has turned hostile. He has stated that on the particular day and time of the incident he had gone to Village Dondi along with Karan Singh and the witness Chandar Singh (PW1) to provide treatment of jaundice to witness Karan Singh and therefore, he had no knowledge how the incident took place. Since the witness Devkaran (PW4) was declared hostile, the learned Additional Sessions Judge has totally left out the testimony of the witness Devkaran. Since the witness Devkaran (PW4) was declared hostile, the learned Additional Sessions Judge has totally left out the testimony of the witness Devkaran. However, the witness Manubai (PW5) has accepted in para 21 that on the day of incident her husband Karan Singh was sick and he was taken for his treatment to Village Dondi by the servants, Chandar Singh etc. Under these circumstances, possibility cannot be ruled out that the witness Chandar Singh (PW1) was not actually an eye witness. He might have gone with the witness Devkaran to Village Dondi for the treatment of witness Karan Singh. 9. Devkaran and Chandar Singh have accepted that there was a family dispute between the appellant Sardar Singh and the deceased Dhool Singh as well as Karan Singh, husband of the witness Manubai and in so many cases Chandar Singh and Devkaran were cited as witnesses from the side of Karan Singh and the deceased Dhool Singh. Chandar Singh (PW1) has accepted in para 14 that on the report lodged by appellant Dilip Singh a prevention case under Section 107 of the Cr.P.C was initiated against him. He also gave the evidence against the appellants in a case lodged against Sardar Singh and Dilip Singh that they had set grass of Karan Singh on fire and thereafter, he did not have any talking terms with Sardar Singh and Dilip Singh. Chandar Singh has stated that the appellant Sardar Singh wanted to sell his land and his brothers viz. Dhool Singh, Onkar Singh and Karan Singh did not permit him to sell his land and therefore, several cases were initiated before the Court of law by the parties. 10. The learned Senior Advocate for the appellant Gajraj Singh has submitted that though the witnesses have stated that the appellant Gajraj Singh assaulted the deceased Dhool Singh with the boulder, if the appellant Gajraj Singh was present and had participated in the crime nothing prevented the witnesses to inform about that fact to the witnesses Onkar Singh (PW6) and Chowkidar Gokul Prasad (PW2) who, had lodged the FIR. If FIR P/4-A is perused, then it would be apparent that only the name of appellant Sardar Singh was mentioned as an accused. The Additional Sessions Judge has wrongly accepted the explanation given by the witnesses as to why the names of appellants Dilip Singh and Gajraj Singh were not mentioned in the FIR. If FIR P/4-A is perused, then it would be apparent that only the name of appellant Sardar Singh was mentioned as an accused. The Additional Sessions Judge has wrongly accepted the explanation given by the witnesses as to why the names of appellants Dilip Singh and Gajraj Singh were not mentioned in the FIR. In this context the learned Senior Advocate has placed his reliance upon the judgment passed by the Apex Court in the case of 'B.N. Singh v. State of Gujarat' ( AIR 1990 SC 1628 ) in which it is held that if version of the witnesses that three accused caught hold of the deceased and remaining three inflicted knife blows and injuries were found all over the body of the deceased, then allegations appear to be improbable and evidence of such witnesses cannot be relied upon. 11. In the present case as submitted by learned Senior Advocate it is apparent that, name of the appellants Gajraj Singh and Dilip Singh were not mentioned in the FIR Ex.P/4-A. According to the FIR Ex.P/4-A, the incident took place at about 2.00 p.m and the FIR was lodged at about 7.35 p.m whereas, the place of incident was 12 kms. away from Police Station, Ashta. The FIR Ex.P/4-A was lodged by Gokul Prasad (PW2), Chowkidar of the Village. He has categorically stated that at about 2.30 p.m, he was called by the witness Onkar Singh (PW6) who, told him that his brother Dhool Singh was lying unconscious and thereafter, Onkar Singh told him that Dhool Singh was being assaulted by Sardar Singh by boulder and therefore, he went to the Police Station and he lodged the FIR Ex.P/4-A. The witness Gokul Prasad was not declared hostile and therefore, it would be apparent from his evidence that no witness had informed him about the overt acts of the remaining appellants Gajraj Singh and Dilip Singh. Onkar Singh (PW6) has stated that the witness Manubai came to his house at Village Mankund and then informed him that Sardar Singh had sat on the chest of deceased Dhool Singh and the appellants Dilip Singh and Gajraj Singh had broken the mouth of the deceased Dhool Singh by boulders and thereafter, he went to the spot and found Dhool Singh dead. He did not mention any reason as to why he did not inform about the other appellants except Sardar Singh to Chowkidar Gokul Prasad. He did not mention in the case diary statement Ex.D/2 as to why he did not tell the name of the appellants Dilip Singh or Gajraj Singh to Chowki-dar Gokul Prasad. Hence the possibility cannot be ruled out that names of the appellants Dilip Singh and Gajraj Singh were added due to enmity by the witnesses after lodging the FIR to falsely implicate them. 12. It is pertinent to note that according to the witness Gokul Prasad the incident took place at about 2.00 p.m and he was informed by Onkar Singh at about 2.30 p.m and thereafter, he went to lodge the FIR and at about 7.35 p.m he had lodged the FIR Ex.P/4-A. According to witness Manubai, she went to Village Mankund to inform the witness Onkar Singh about the incident and this fact has also been admitted by Onkar Singh. Thereafter, Onkar Singh came to the spot and called Chowkidar Gokul Prasad and told about the incident. However, Gokul Prasad was intimated at about 2.30 p.m and therefore, it appears that the incident took place much prior to the time as mentioned in the FIR Ex.P/4-A. Any how according to the witnesses the intimation of the incident was given to the Chowkidar Gokul Prasad at about 2.30 p.m and he had lodged the FIR after five hours whereas, the place of incident was hardly 12 kms. away from the Police Station Ashta. Hence, the FIR was lodged after a long delay and no reason of delay has been given by the witnesses. Possibility cannot be ruled out that name of the appellant Sardar Singh was also implicated by the witnesses. It was possible that the witnesses saw the dead body of the deceased Dhool Singh and therefore, on the basis of enmity of the deceased Dhool Singh with his brother Sardar Singh, name of the appellant Sardar Singh was mentioned in the FIR and after lodging the FIR names of the remaining appellants were also added by the witnesses after making improvement in their version therefore, it would be proper to appreciate the evidence of the witnesses minutely. 13. 13. As discussed above that Chandar Singh (PW1) and Devkaran (PW4) were the patent regular witnesses of the complainant party and Manubai (PW5) as well as Devkaran (PW4) have accepted that on the particular date of the incident, Devkaran and Chandar Singh went with Karan Singh to Village Dondi for his treatment and therefore, it was not possible for these two witnesses to see the incident, in the field near Village Mankund. Interest of the witness Devkaran was not adverse to the complainant party and therefore, though he was declared hostile, the acceptable portion of his testimony, should have been relied. The portion of evidence given by Devkaran (PW4) was duly corroborated by Manubai that Chandar Singh went along with her husband to Village Dondi on the date of the incident and therefore, it appears that being an interested witness Chandar Singh (PW1) told about the incident, though he was not present at the spot at the time of the incident. 14. In this context, if the evidence given by Chandar Singh (PW1) is examined, then in para 3 he stated that the deceased Dhool Singh left with his bullocks to provide them water and after one hour he heard the outcry of deceased Dhool Singh. In para 3, he has further stated that when he along with other witnesses reached the spot, Dhool Singh was lying on the ground and appellant Sardar Singh was sitting on his chest who after seeing them, ran away but, in para 4 he has stated that he saw the appellants Dilip Singh and Gajraj Singh who, were assaulting the deceased Dhool Singh with boulders. Again in para 18 of his cross-examination, he has accepted that he cannot say as to whether the appellants were pelting stones upon the deceased Dhool Singh or they held boulders in their hand and assaulted the deceased with boulders. If the witness Chandar Singh was an eye witness in the case then he would have seen as to how the appellants assaulted the deceased either by pelting the boulders or by holding the boulders in their hands. In para 19, he was asked that if the appellants had ran away in front of him then in which direction, he could not give any reply. He has admitted that he saw the appellant Sardar Singh sitting on the chest of deceased Dhool Singh. In para 19, he was asked that if the appellants had ran away in front of him then in which direction, he could not give any reply. He has admitted that he saw the appellant Sardar Singh sitting on the chest of deceased Dhool Singh. He did not claim that the appellant Sardar Singh assaulted the deceased Dhool Singh either with a stone, boulder or any weapon. He has accepted in para 19 of his cross-examination that after seeing the injuries of the deceased, he suspected that such injuries could be caused by boulders and since the appellant Sardar Singh was found sitting on the chest of the deceased he thought that such injuries would have been caused by the appellant Sardar Singh. After considering the details given by witness Chandar Singh in his cross-examination, it is clear that he claimed that he saw the appellant Sardar Singh sitting on the chest of deceased Dhool Singh and after seeing him, Sardar Singh ran away. He therefore, did not see the appellant Dilip Singh or Gajraj Singh at the spot and he has improved his version. 15. The witnesses Chandar Singh (PW1) in para 20 of his cross-examination has accepted that when he reached near the deceased Dhool Singh, he found him unconscious and thereafter, he died. He has stated in para 17 of his cross-examination that he heard the outcry of deceased Dhool Singh who was naming the appellants as assailants. However, such version has not been corroborated by other eye-witnesses or by the version of the FIR. On considering the contradiction in his statement, impossibility and unnatural allegation, it would be apparent that Chandar Singh was not an eye-witness in the case. Testimony of the witnesses Devkaran can be believed that he and Chandar Singh went to Village on that day for treatment of Karan Singh and therefore, Chandar Singh who was not at all an eye-witness, and was a created witness by Onkar Singh (PW6) who, gave an information to Chowkidar Gokul Prasad (PW2). 16. So far as the evidence of Manubai (PW5) is concerned, she has stated that the appellants assaulted the deceased by boulders. On hearing the outcry of the deceased, she rushed to the spot behind the witnesses Chandar Singh (PW1) and Devkaran (PW4) and saw the incident. Thereafter, she went to Mankund and informed about the incident to his elder brother-in-law Onkar Singh. On hearing the outcry of the deceased, she rushed to the spot behind the witnesses Chandar Singh (PW1) and Devkaran (PW4) and saw the incident. Thereafter, she went to Mankund and informed about the incident to his elder brother-in-law Onkar Singh. However, in the cross-examination, the witness Manubai (PW5) has accepted that she was Patelan of the village. She had sufficient land of her own. She kept two servants along with their wives to do the work of her house as well as of her fields. She has accepted that she went to that field for picking stones, which was given to Chandar Singh (PW1) on lease and it was the duty of the lessee to pick up the stones from the fields and to clear it before its harvesting. She has accepted that she went for picking up the stones for the first and last time on that day. She has stated in para 8 of her cross-examination that she and her younger brother-in-law deceased Dhool Singh went to the field at the same time. On that day both of them had observed a fast. Dr. B.B. Arya (PW8) in his post mortem report Ex.P/9 has found that the stomach of the deceased was filled up with undigested food and therefore, the evidence given by the witness Manubai that she and the deceased Dhool Singh had observed fast, appears to be incorrect. There was no need to the field owner to go herself and clean the fields which was given on lease and therefore, possibility cannot be ruled out that Manubai did not go with deceased Dhool Singh to the field and when she received information that her brother-in-law was killed, she claimed herself to be an eye-witness and thereafter, with help of her elder brother-in-law Onkar Singh she arranged for lodging the FIR. On asking, the witness Manubai (PW5) could not tell about the boundaries of the fields where she was picking the stones, she could not tell that whose field was near to that field, or about the direction in which the deceased went with his bullocks. In her cross-examination she had claimed that when the appellants came to the spot she saw them whereas, such claim was not made by her in the case diary statement. In her cross-examination she had claimed that when the appellants came to the spot she saw them whereas, such claim was not made by her in the case diary statement. She has accepted that she went to inform her brother-in-law Onkar Singh, Chandar Singh and Devkaran had remained at the spot. She could not tell the reason as to why she did not send her servants, Chandar Singh etc. to give an information to brother-in-law Onkar Singh. She has also accepted that Chowkidar Gokul Prasad had immediately rushed to the spot soon after the death of the deceased Dhool Singh. In her case diary statement, she had stated that when she went to the house of Onkar Singh, the deceased Dhool Singh was alive and when she came back she found him to be dead. Such case diary statement of the witness Manubai indicates that she gave a wild statement to the Police which was not possible. Injuries proved by Dr. Arya caused to the deceased Dhool Singh were of such nature that after the incident he could not have survived. If the witness Manubai was the eye-witness in the case then according to herself, she immediately rushed to the witness Onkar Singh to inform about the incident and Onkar Singh had informed the Village Chowkidar Gokul Prasad at about 2.30 p.m. then there was no reason as to why the FIR was lodged at 7.35 p.m in the evening where the Police Station was hardly 12 kms. away from the spot. 17. Manubai has accepted that she followed the witnesses Devkaran (PW4) and Chandar Singh (PW1) after hearing the outcry of the deceased and therefore, if the witnesses Chandar Singh and Devkaran could not see the appellants Gajraj Singh and Dilip Singh then there was no possibility that the witness Manubai could see these appellants when she reached the spot after the witnesses Chandar Singh and Devkaran. If she had seen the appellants Dilip Singh and Gajraj Singh then as to why she did not inform about their overt acts to the witness Onkar Singh so that names of these appellants could be mentioned in the FIR. Hence, it appears that after informing Chowkidar Gokul Prasad, the witness Manubai has improved her version that the appellants Gajraj Singh and Dilip Singh had assaulted the deceased with boulders. Hence, it appears that after informing Chowkidar Gokul Prasad, the witness Manubai has improved her version that the appellants Gajraj Singh and Dilip Singh had assaulted the deceased with boulders. It would be apparent that the witness Manubai is telling a falsehood against the appellants Dilip Singh and Gajraj Singh. 18. No witness could give any explanation about the delay of five hours in lodging the FIR. It appears that the dead body of the deceased Dhool Singh was found and thereafter, the witnesses prepared a story about the incident and the story was fed to Chowkidar Gokul Prasad who, had lodged the FIR Ex.P/4-A according to that story. If the witness Manubai saw the appellant Sardar Singh, who was involved in the crime then there was no necessity to the appellant Sardar Singh to sit on the chest of the deceased. He could assault on the face of the deceased with boulders by sitting on his chest but, it is not stated by any of the witnesses that they found the appellant Sardar Singh assaulting the deceased by boulders. 19. The learned counsel for the appellant Sardar Singh has submitted that age of Sardar Singh is shown to be 70 years at the time of the incident whereas, the deceased was only 45 years old and therefore, it was not possible for the appellant Sardar Singh to over power the deceased and sit on his chest. If someone had helped him in doing so then after such person left the spot there was no reason for the appellant Sardar Singh to remain present at the spot and to keep sitting on the chest of the deceased till arrival of the witnesses. If he would have assaulted the deceased with boulders by sitting on his chest then certainly his clothes would have been blood stained but, the investigation officer did not recover any weapon, boulder or blood stained clothes from the appellant Sardar Singh. The submission made by the learned counsel for the appellant Sardar Singh appears to be acceptable and allegations made by the alleged eye-witnesses against Sardar Singh appear to be unnatural. The submission made by the learned counsel for the appellant Sardar Singh appears to be acceptable and allegations made by the alleged eye-witnesses against Sardar Singh appear to be unnatural. Under these circumstances, it appears that Manubai also was not the eye-witness and after getting an information about the death of her brother-in-law Dhool Singh, she claimed herself to be an eye-witness along with servants Chandar Singh and Devkaran who went to the village Dondi on that day along with her husband Karan Singh. 20. When it is found that Devkaran, Chandar Singh and Manubai were not the actual eye-witnesses then due to non-examination of the remaining eye-witnesses, no ocular evidence remains against the appellants. Hence, chain of other circumstantial evidence may be examined. According to Dr. B. B. Arya (PW8) fractures were found on frontal bone, parietal bone and nasal bone of the deceased. It appears that his face was crushed and he died due to head injuries. Hence, death of the deceased was homicidal in nature. It is also established that the appellants had a motive to kill the deceased Dhool Singh because there was enmity between the parties and so many litigations were going on between the deceased Dhool Singh and the appellants. 21. However, neither any fact of last seen nor extra judicial confession could be established by the prosecution against any of the appellants. No blood stained weapon or blood stained clothes were recovered from the appellants. Under such circumstances, chain of circumstantial evidence is broken. Only basis of two circumstances i.e. motive of the appellants and that the death of the deceased was homicidal in nature, a suspicion may arise against the appellants that they were the persons who killed the deceased. However, the suspicion cannot take place of a valid evidence. The appellants could not be convicted on the basis of suspicion. 22. It is established that evidence of the eye-witnesses was not believable beyond doubt and after discarding the ocular evidence, chain of circumstantial evidence is not found complete. The appellants cannot be convicted of offence under Section 302 of I.P.C either directly or with the help of section 34 of I.P.C. The learned Additional Sessions Judge has committed an error of law and fact in appreciating the evidence. The appellants cannot be convicted of offence under Section 302 of I.P.C either directly or with the help of section 34 of I.P.C. The learned Additional Sessions Judge has committed an error of law and fact in appreciating the evidence. The evidence must have been appreciated in the light of the judgment passed by Hon’ble the Apex Court in the case of B. N. Singh ( AIR 1990 SC 1628 ) (supra). Hence the appeals filed by the appellants can be accepted. Consequently, both the appeals are hereby allowed. The conviction as well as the sentence of offence punishable under Section 302 or 302 read with Section 34 of I.P.C are hereby set aside. All the appellants are acquitted of all the charges appended against them. 23. The appellants are on bail. Their presence is no more required before this Court and therefore, it is directed that their bail bonds shall stand discharged. 24. Copy of the judgment be sent to the trial Court along with its record for information and compliance. Appeals allowed.