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2014 DIGILAW 1680 (MP)

Chunnilal v. State of M. P.

2014-12-17

SUSHIL KUMAR GUPTA

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JUDGMENT : Sushil Kumar Gupta, J. 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 29.10.2005 passed by learned Third Additional Sessions Judge, Gwalior in Sessions Trial No. 147/2003 convicting the appellants under Section 307/34 of Indian Penal Code, 1860 (in short “Code, 1860”) and thereby sentencing them to suffer five years' rigorous imprisonment and fine of Rs. 1000/- (Rupees One Thousand), in default, further rigorous imprisonment of three months, the appellants have preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 (in short “Code, 1973”). 2. During the pendency of this appeal, the appellant, Chunnilal had died and his name has been deleted from the cause title, as the appeal stood abated against him. 3. In brief, the case of prosecution is that on dated 16.12.1998 in the night at about 9:30 when complainant Ashish alias Shyam (PW.3) had come on motorcycle to his house, at that time appellants/accused came on motorcycle armed with .35 bore revolver and fired on complainant with an intention to kill him, which hit on the abdomen of the complainant. On hearing the shrieks of the complainant, his father Balveer Singh Chauhan came down to open the gate of the house, at that time appellants/accused flee away on the motorcycle towards Gwalior. Appellants/accused committed this act of firing to kill the complainant Ashish due to business rivalry. Ramesh Mistri and Shailendra were present at the time of the incident. The complainant was taken to Police Chowki, Phool Bagh by Auto by his father Balveer Singh Chauhan and brother Shailendra (PW.4), thereafter Balveer Singh Chauhan lodged the report that was registered as Dehati Nalishi (Ex.P.2) by A.S.I. Punjab Singh (PW.7) and the complainant was referred to J.A Hospital for treatment. On the basis of Dehati Nalishi Head Constable Rajendra Bhaskar (PW.8) registered an FIR (Ex.P.8). During investigation, MLC report (Ex.P.1) received from the Hospital, Spot map Ex.P.5 has been prepared. One bullet which was hit on the motorcycle was seized by seizure memo (Ex.P.3). Clothes which were wearing by the complainant, at the time of incident, were also seized by seizure memo (Ex.P.4). One bullet which was taken out from the stomach of the complainant Ashish was also seized by seizure memo (Ex.P.7). Both the bullets as well as clothes were sent to the F.S.L. Sagar from where report (Ex.P.6) was received. Clothes which were wearing by the complainant, at the time of incident, were also seized by seizure memo (Ex.P.4). One bullet which was taken out from the stomach of the complainant Ashish was also seized by seizure memo (Ex.P.7). Both the bullets as well as clothes were sent to the F.S.L. Sagar from where report (Ex.P.6) was received. The police after registering the offence took up the investigation and after its completion a charge-sheet was submitted under sections 450, 307 read with section 34 of Code, 1860 in the committal Court which on its turn committed the case to the court of Session and from where it was received by the trial court for trial. 4. The learned Trial Judge framed charges punishable under Sections 450, 307 read with section 34 of Code, 1860 against the appellants. Needless to emphasize all the accused persons abjured their guilt and pleaded complete innocence as they were not present at the time of incident and they have falsely been made accused in this case due to the old business rivalry. 5. In order to prove the charges, the prosecution examined as many as nine witnesses and placed Ex.P/1 to P/10 the documents on record. Though the defence of accused person is of false implication and the same defence they set forth in their statement recorded under Section 313 of Code, 1973, but the specific defence of appellants are of alibi. 6. The learned Trial Court after appreciating and marshalling the evidence came to hold that all the appellant has committed the offence under Sections307 read with section 34 of Code, 1860 and eventually convicted them and passed the sentence which is mentioned in the impugned judgment. 7. In this manner, the present appeal has been filed by the appellants assailing the judgment of conviction and order of sentence. 8. Appellants/accused challenging the conviction and sentence passed by the learned Trial Court on the ground that there is material contradictions and omissions in the statements of prosecution witnesses. Appellants/accused were not present at the time of incident on the spot, the independent witnesses as well as his family members have not supported the statement of the complainant. The important eye-witness has not been examined. Appellants/accused were not present at the time of incident on the spot, the independent witnesses as well as his family members have not supported the statement of the complainant. The important eye-witness has not been examined. A.S.I. Punjab Singh (PW.7) and S.P. Prem Kumar Dixit (DW.2) have admitted in their statements that appellants/accused were not present on the spot and the incident was committed by unknown persons. They have also opined that the false FIR has been registered against the appellants. They also admitted in their statements that offence was not committed by appellants/accused. 9. On the other hand learned Panel Lawyer for the State has submitted that the conviction and sentence directed by the Trial Court appears to be correct and no interference is required in the appeal. 10. I have heard the learned counsel for the parties at length. 11. The prosecution case rests mainly on the ocular evidence of injured Ashish Chauhan (PW.3) and Shailendra Singh alias Rajan (PW.4). Ramesh Mistri, as per prosecution story and FIR, who was admittedly present on the spot and had witnessed the incident was not examined at the trial and was given up by the prosecution, without any reason, although he was present on dated 25.6.2004. Statement of Pratibha W/o Shailendra as a eye witness was also recorded under section 161 of Code, 1973 by the police, but she was also not examined at the trial and was given up by the prosecution, without any reason, although she was present on 19.8.2004. 12. Injured Ashish alias Shyam (PW.2) and Shailendra alias Rajan (PW.4) both are real brothers and the learned Trial Court having relied upon for the purpose of recording finding of guilt against the appellants/accused. 13. Dr. Ashok Kumar Bohare (PW.2) who has examined injured Ashish Chauhan and found following injuries on his person: “(1) Lacerated wound size 1.5 x 0.75 cm x depth not asses on the left side of hypochondrium near the coastal margin. Blackening present. This is a wound of entry. (2) The bullet feel superficially in the left side of lumbar region of Abdomen.” 14. Pramod Singh Bhadoriya (PW.5), who is brother-in-law of the complainant, is the witness of the seizure memo of two bullets as per Ex.P.4 and spot map Ex.P.5. Blackening present. This is a wound of entry. (2) The bullet feel superficially in the left side of lumbar region of Abdomen.” 14. Pramod Singh Bhadoriya (PW.5), who is brother-in-law of the complainant, is the witness of the seizure memo of two bullets as per Ex.P.4 and spot map Ex.P.5. O.P. Shrivastava (PW.6) is the ballistic expert, who has examined two bullets and opined that these are .38 bore bullets and has fired by .38 bore factory made weapon, such as by .38 bore revolver. 15. Learned counsel for the appellants vehemently attacked on the testimony of Ashish Chauhan (PW.3) and Shailendra Singh alias Rajan (PW.4) and submitted that the testimony of both witnesses are too vague and false and no interference can be drawn against the appellants for committing the offence. It is further submitted that the investigation as also the conduct of prosecution at the trial suffers from certain serious infirmities and the benefit whereof should not be denied to the appellants. 16. In the light of the submissions advanced firstly I would scrutinze the testimony of two main witnesses Ashish Chauhan (PW.3) and Shailendra Singh alias Rajan (PW.4). 17. Ashish Chauhan (PW.3) stated that on 16.12.1998 at about 9:30 PM he was coming from market towards his house on Bike and when he reached at the home and knocked the door, his father get down from first floor, at that time he saw appellants/accused standing there and they all were having revolver in their hands and they fired on him with an intention to kill him. One bullet hit his abdomen, as soon as he ran inside the house, at that time appellants/accused fired five to six rounds and flee away from the place of incident. He further stated that at that time his father and brother Shailendra Singh came there and took him to Phool Bagh, Police Chowki by Auto. 18. Ashish Chauhan (PW.3) has admitted in para 3 to 5 that there is business rivalry and old enmity between appellants/accused and his family. He has also admitted that between the parties so many criminal cases have been registered, pending and tried before the Court. He had admitted in para 3 that one case is still pending against him and his brother Shailendra for attempt to commit murder of appellant/Ashok by means of Revolver. It has also been admitted that both the parties are Arms Dealers. He had admitted in para 3 that one case is still pending against him and his brother Shailendra for attempt to commit murder of appellant/Ashok by means of Revolver. It has also been admitted that both the parties are Arms Dealers. It has also been admitted that Ashish Chauhan and Shailendra Singh alias Rajan both are the real brothers. It is true that there was a business rivalry between the parties, but enmity is double edged weapon, that means due to enmity the appellant could assault the vicitim or due to that enmity the appellant could be falsely implicated by the victim and therefore, the evidence of witnesses should be scrutinized minutely. 19. Ashish Chauhan (PW.3) admitted in para 2 of the cross-examination that at the time of incident his mother Rani Chauhan and sister-in-law (Bhabhi) Pratibha Chauhan was present at the house, but statement of Rani Chauhan was not recorded by the police during investigation and the eye-witnesses Pratibha Chauhan was not examined by the prosecution. In para no. 2 Ashish Chauhan (PW.3) denied the presence of Ramesh Mistri at the time of incident. Shailendra Singh alias Rajan (PW.4) also denied the presence of Ramesh Mistri in para 2 of cross- examination, but ASI Punjab Singh (PW.7) in para 8 of cross- examination has specifically admitted the presence of Ramesh Mistri as an independent eye-witness at the time of incident and the presence of Ramesh Mistri also mentioned in the FIR (Ex.P.8). 20. Ashish Chauhan (PW.3) also stated in para 7 of cross- examination that appellants/accused were armed with revolver or pistol. He again admits that he cannot say that appellants were having revolver or pistol. He denied this fact that appellants/accused having gun at that time. He again stated that he has not given statement to Doctor in Ex.D.2 that all the accused were having gun. However, according to FIR (Ex.P.8) appellants were armed with .32 bore revolver and .315 bore Katta. It is pertinent to mention here that he is a Arms Dealer and he very well knows the difference between the Revolver, Gun and Katta, but his changing version about the weapon creates doubt about his testimony. However, according to FIR (Ex.P.8) appellants were armed with .32 bore revolver and .315 bore Katta. It is pertinent to mention here that he is a Arms Dealer and he very well knows the difference between the Revolver, Gun and Katta, but his changing version about the weapon creates doubt about his testimony. According to FIR (Ex.P.8) appellants fired by using .32 bore revolver and .315 bore Katta which hit abdomen of Ashish, but Ballistic Expert O.P. Shrivastava (PW.6) categorically stated in his statement that after examination of two bullets, he found that them .38 bore bullets. Those bullets are not belongs to .32 bore and .31 bore. The statement of Ashish is not corroborated by the statement of Ballistic Expert O.P. Shrivastava (PW.6). 21. Further the statement of this witness was that appellants/accused all three having revolvers and fired five to six times, but only one bullet hit the abdomen of the injured Ashish Chauhan and no other bullets or sign of bullets were found on the spot. It is quite impossible that where three person fired by three fire arms five to six rounds and only one bullet hit Ashish even no other bullets or empty cartridges found on the spot as well as no sign of bullets were found on the spot as admitted by A.S.I. Punjab Singh (PW.7) in para 7. 22. As per the statement of this witness, his father and brother were taken to him to Police Chowki and Hospital in Auto, but Suresh Chaukotiya (PW.1) stated that he was also present in the Auto and he has not supported the evidence of Ashish. On the contrary Suresh Chaukotiya (PW.1) also stated the presence of Rani mother of Ashish. But, in para 9 Ashish (PW.3) specifically denied the presence of fourth person in the Auto. 23. Statement of Ashish Chauhan (PW.3) was recorded by the police on 18.12.1998 after two days of the incident. This witness stated in para 12 that on 16.12.1998 and 17.12.1998 he was unconscious and was not in a position to record the statement, but the A.S.I. Punjab Singh (PW.7) stated in para 22 of cross-examination that on 16th and 17th December, 1998 Ashish Chauhan was very well in position to give the statement, but he has recorded his statement on 18.12.1998. There is no explanation has been given about the delay in recording the statement of this witness. There is no explanation has been given about the delay in recording the statement of this witness. Ashish Chauhan (PW.3) also admitted in his cross- examination in para 12 that first time on 18.12.1998 he disclosed about the incident to police. He also stated in para 16 that blood were oozing out from the abdomen and was flow down on the spot, but no blood was found on the spot according to Punjab Singh (PW.7) in para 7. This non-availability of blood stain at the place of occurrence also makes the prosecution case doubtful. Shailendra Singh alias Rajan (PW.4) admitted in his statement in para 6 that he and his father's clothes were drenched with blood, but not seized by police. 24. Shailendra Singh alias Rajan (PW.4) stated in his examination-in- chief in para 1 about the incident that on dated 16.12.1998 at about 9:30 PM he was sitting in his house at first floor, at that time on hearing the door knocking, his father Balveer Singh Chauhan get down from the first floor with the key to open the door, at that time he came on balcony and saw that the appellants/accused were standing on the road having revolvers in their hands and they fired on his brother Ashish alias Shyam then he came down. In para 2 he stated that he and his father took away Ashish alias Shyam in Auto to Hospital. 25. Before consideration of cross-examination of this witness, it is pertinent to mention here that his wife Pratibha stated in the statement, recorded under section 161 of Code, 1973 that at the time of incident her husband was not present in the house, therefore, he had not gone in Auto with her father-in-law Balveer Singh at Police Chowki Phoolbagh and Hospital. Though Pratibha Singh W/o Shailedra Singh has not been examined by the prosecution, but accused can used her statement. Reliance placed on the decision of this Court in the case of Ramdayal Vs. State of Madhya Pradesh, 1993 M.P.L.J. 532 wherein it has been held as under: "In these circumstances, the F.I.R. Although a document of the prosecution, went unexhibited and unproved. Can an unproved document of the prosecution be used by the defence ? A view has been taken, with which I concur, that defence like F.I.R. just because the prosecution failed to formally prove it. Can an unproved document of the prosecution be used by the defence ? A view has been taken, with which I concur, that defence like F.I.R. just because the prosecution failed to formally prove it. It is also the view that if the prosecution suggests that its document should not be relied upon because it was a garbled document, it should have given evidence to that effect. In the absence of such evidence by the prosecution, the defence is entitled to use a prosecution document although unexhibited and unproved. The decision of our High Court in Samedas Vs. State of M.P., Cri. Revision 587 of 1963 decided on 30.1.1969 (a short report of which appears in 1969 JLJ S.N. 54) is one such decision. There is also earlier decision of Nagpur High Court in Sheo Prasad Vs. Emperor, 39 Cri.L.J. 917 to that effect. The following observations of Gruer, J., who spoke on behalf of the Bench, appearing at page 922 of the report, are pertinent :- "The next irregularity is that the first information report (Ex.P.1) has not been proved by examining the scribe who wrote it. This is a formal objection and not one that should be advanced on behalf of the prosecution whose document Ex.P.1 is. The defence should not be shut out from using this document because the prosecution did not formally prove it. The presumption is that such a first information report represents the actual information given to the police and taken down by them, and if the prosecution wished to imply that the record of the information made by the police was garbled, it should have given evidence to that effect." 26. Therefore, presence of Shailendra Singh alias Rajan (PW.4), at the time of incident, was doubtful and candidly clear that this witness and Ashish Chauhan (PW.3) is telling lie about the presence of Shailendra Singh alias Rajan (PW.4). It is also pertinent to mention here that the statement of this witness has also been recorded on 18.12.1998 and no explanation has been given by the prosecution for delay in recording his statement. As per para 2 and 5 of this witness he was present on 16th and 17th December, 1998 at Police Chowki Phool Bagh, in the hospital why the statement of this witness was not recorded by the police. As per para 2 and 5 of this witness he was present on 16th and 17th December, 1998 at Police Chowki Phool Bagh, in the hospital why the statement of this witness was not recorded by the police. He has also admitted that he himself had not gone to get record his statement before the police and he has admitted that on 18.12.1998 first time police has recorded his statement. 27. After appreciation of the evidence of Ashish Singh alias Shyam (PW.3) and Shailendra Singh alias Rajan (PW.4) it is found that there are material contradictions, omissions and development in their statements about the incident as well as presence of eye witnesses. Non- examination of independent eye-witnesses Ramesh Mistri and Pratibha not only create a doubt about the incident, but fatal to prosecution. 28. The Apex Court in the case of Bir Singh and others Vs. State of U.P., AIR 1978 SC 59 has held as under: "It is true that it was not incumbent on the prosecution to examine each and every witness so as to multiply witnesses and burden the record. This rule however does not apply where the evidence of the eye-witnesses suffers from various infirmities and could be relied upon only if properly corroborated. In the instant case all the eye-witnesses had serious animus against the accused and they were interested in implicating the accused. The substitution of Ram Dularey Singh in the general diary was a suspicious circumstance. The fact that the police was not able to recover any weapon or to explain how the appellants got hold of the guns was yet another circumstance that required a reasonable explanation from the prosecution. According to the finding of the learned Sessions Judge even the F.I.R. was ante-timed and although the High Court has not accepted this finding we feel, that the High Court on this aspect has entered into the domain of speculation. In view of these special circumstances it was incumbent on the prosecution to examine he two witnesses at least to corroborate the evidence and if they were not examined the Sessions Judge was justified in drawing an adverse inference against the prosecution." 29. For the foregoing reasons, I do not deem it safe to place reliance on the testimony of Ashish Singh alias Shyam (PW.3) and Shailendra Singh alias Rajan (PW.4). 30. For the foregoing reasons, I do not deem it safe to place reliance on the testimony of Ashish Singh alias Shyam (PW.3) and Shailendra Singh alias Rajan (PW.4). 30. So far as the delay in recording the statement of these witnesses the Hon'ble Apex Court in the case of Ganesh Bhavan Patel and another Vs. State of Maharashtra, AIR 1979 SC 135 observed as under: "Delay of a few hours, simpliciter, in recording the statements of eyewitnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. Thus under the facts and circumstances of the case delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence, over the evidence of other witnesses." 31. Ashish Singh alias Shyam (PW.3) in para 8 denied to give statement (Ex.D.4) to the CID Police, but Mukesh Saxena (PW.9) stated in para 2 that on 28.3.2000 he recorded statement Ex.D.4 of Ashish Singh alias Shyam (PW.3) in which he stated that: This statement clearly shows that he did not know the person who has fired. 32. The appellants took the plea of alibi that they were not present on the spot. In defence they examined Adovcate Bhoop Singh Chaudhari (DW.1) who stated that appellant-Chunnilal was present with him in Bhind from 8:00 PM to 10:00 to 10:15 PM and distance of Bhind to Gwalior is 80 Km. It is not possible for him to reach Gwalior at the time of incident at 9:30 PM. 33. Manveer Singh (DW.3) stated that he resides in Shimla and journey from Shimla to Gwalior is of 16 hours. He further stated that on 16.12.1998 at 4:00 PM appellant/Ashok had came on his shop for business purpose and remained there till 8:00 PM. On 17.12.1998 at about 10:00 AM he again came on his shop. 33. Manveer Singh (DW.3) stated that he resides in Shimla and journey from Shimla to Gwalior is of 16 hours. He further stated that on 16.12.1998 at 4:00 PM appellant/Ashok had came on his shop for business purpose and remained there till 8:00 PM. On 17.12.1998 at about 10:00 AM he again came on his shop. He further stated that appellant/Ashok on 16.12.1998 stayed in night at Ambah Hotel in Shimla. This Court in the case of Rajendra Kumar Gupta and others Vs. State of Madhya Pradesh, 2014 CRI.L.J. 2133 has held as under: "14.It is well settled law that defence is not required to prove the defence with the same standard of strict proof, which is applicable and is required to be proved by the prosecution. It would be sufficient if the probable defence has been taken and it has been proved by placing cogent evidence on record. Since the overwhelming material documents are on record and looking to the evidence of the doctors, the probable defence which has been taken by the defence is found to be proved. 15. It is well settled law that the defence witnesses are at par with that of prosecution witnesses and their testimony should not be disbelieved merely because they have been examined by the defence side. In this context I may profitably place reliance upon the decision of the Supreme Court State of Haryana (supra) and also some other decisions, they are S.Varadarajan v. State of Madras, AIR 1965 SC 942 , Sanjiv Kumar v. State of Punjab (2009) 16 SCC 487 , Munshi Prasad and others v. State of Bihar (2002) 1 SCC 351 ( AIR 2001 SC 3031 ) and State of U.P. v. Baburam AIR 2000 SC 1735 ." Here in the case in hand, statement of both the defence witnesses are very well supported by the Prem Kumar Dixit (DW.2) and also by prosecution witness A.S.I. Punjab Singh (PW.7) cannot be disbelieved. 34. Superintendent of Police, Prem Kumar Dixit (DW.2) specifically stated in para 4 that : 35. At the last but not the least statement of Punjab Singh (PW.7) is very important and on the basis of that it is crystal clear that the incident was caused by unknown person and not by appellants. 34. Superintendent of Police, Prem Kumar Dixit (DW.2) specifically stated in para 4 that : 35. At the last but not the least statement of Punjab Singh (PW.7) is very important and on the basis of that it is crystal clear that the incident was caused by unknown person and not by appellants. Appellants/accused were not present on the spot and they have falsely been implicated in the case due the business rivalry and old enmity. 36. A.S.I. Punjab Singh (PW.7) admitted in paras 12, 14, 15, 16, 17, 20, 21 and 23 which reads thus: 37. On the basis of aforesaid discussion it is found that incident was caused by unknown person and not by the appellants/accused. Appellants/accused were not present on the spot and have falsely implicated in the case due to business rivalry and old enmity. 38. Accordingly, I am of the considered opinion that the prosecution case is doubtful and as such in view of the facts and circumstances the benefit of doubt can be extended to the appellants. 39. For the reasons stated hereinabove, the present appeal is allowed. The judgment of conviction and order of sentence dated 29.10.2005 passed by the Trial Court in S.T.No. 147/2003 is hereby set aside and and they are acquitted from all the charges. Appellants are on bail, their bail bonds are discharged. The amount of fine, if deposited, be refunded to them.