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2016 DIGILAW 1048 (MP)

Arvind @ Akhendra Singh v. State Of M. P.

2016-11-18

G.S.AHLUWALIA, N.K.GUPTA

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JUDGMENT : N. K. GUPTA, J. The appellant has preferred the present appeal being aggrieved with the judgment of conviction and order of sentence dated 20.10.2004 passed by the Special Judge under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Shivpuri (M.P.) in Special Sessions Trial No. 319/2003 whereby the appellant has been convicted of offence under section 302 of Indian Penal Code and under section 25/27 of the Arms Act and sentenced to life imprisonment with a fine of Rs. 2,000/- and three years’ RI with a fine of Rs. 500/- respectively. Default sentence in lieu of payment of fine has also been recorded. 2. Facts of the case, in short, are that complainant Gyan Singh (PW-1) lodged an FIR Ex.P-3 at outpost Sunari, District Shivpuri (M.P.) on 4-7-2003 at about 09 a.m. to the effect that his brother deceased Veer Singh along with Sitaram (PW-6) had gone to the field of some tribal persons for ploughing the field, where a dispute took place for possession and therefore he returned. In the previous night of 4-7-2003 at about 01 a.m. when deceased Veer Singh was sleeping on a cot outside his house, appellant-Arvind @ Akhendra Singh along with other accused persons, namely, Devendra, Virendra and Bade Raja visited his place and started abusing the deceased Veer Singh with the pretext that how could he dare to plough the land of their relatives. Thereafter, Bade Raja exhorted appellant Arvind @ Akhendra Singh to fire with a gun and therefore Arvind @ Akhendra Singh fired with a half barrel mouser gun. Ratibai (PW-3), mother of the complainant, tried to save Veer Singh but she was pushed by accused Virendra. Thereafter, Gyan Singh (PW-1) and his brother Jahendra Singh (PW-5) jumped from the first floor of the house to save Veer Singh but the accused persons ran away from the spot. Various neighbours like Narayan (PW-7), Ramdas (PW-9) and Kissu (PW-10) had also gathered at the spot on hearing the noise of gun-shots. After lodging of the FIR, the matter was referred to Police Station Karera where the case was registered with document Ex.P-21. Dead body of the deceased was sent for post-mortem. Dr. N. S. Chouhan (PW-12) performed the post-mortem on the body of the deceased Veer Singh and gave his report Ex.P-15. After lodging of the FIR, the matter was referred to Police Station Karera where the case was registered with document Ex.P-21. Dead body of the deceased was sent for post-mortem. Dr. N. S. Chouhan (PW-12) performed the post-mortem on the body of the deceased Veer Singh and gave his report Ex.P-15. According to him there were three entry wounds found on the right chest as well as on the left hand of the deceased whereas one exit wound was also present on left palm of the deceased. Due to aforesaid injuries both of his lungs were damaged and the first and second right ribs were also found broken. The deceased Veer Singh died due to these injuries within 12-24 hours of the time of post-mortem. 3. Angad Singh Kushwah (PW-15), who was posted as Sub-Divisional Officer (Police), Karera, District Shivpuri (M.P.) investigated the matter. He recovered a hand-made firearm of 315 bore from appellant Arvind @ Akhendra Singh and prepared a recovery memo Ex.P-12. He recorded the statements of various witnesses under section 161 of the Code of Criminal Procedure. Recovered firearm was sent for its mechanical examination. A sanction order Ex.P-7 was obtained from the District Magistrate, Shivpuri (M.P.) against the appellant and after due investigation, the charge-sheet was filed. Ultimately, the matter was tried by the Special Judge under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Shivpuri (M.P.). 4. The appellant abjured his guilt. He took a plea that he had no concern with the crime. He was falsely implicated due to enmity with Sitaram, however, no defence evidence was adduced. 5. The Special Judge after considering the prosecution’s evidence acquitted all the accused persons except the appellant Arvind @ Akkhendra Singh, however, appellant Arvind @ Akhendra Singh has been acquitted from the charge of section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 6. We have heard the learned counsel for the parties at length. 7. In the present case, it is almost admitted that the death of the deceased Veer Singh was homicidal in nature. Dr. N. S. Chouhan (PW-12) who performed the post-mortem on the body of the deceased Veer Singh gave his report Ex.P-15. 6. We have heard the learned counsel for the parties at length. 7. In the present case, it is almost admitted that the death of the deceased Veer Singh was homicidal in nature. Dr. N. S. Chouhan (PW-12) who performed the post-mortem on the body of the deceased Veer Singh gave his report Ex.P-15. According to him, there was one entry wound on the palm of the left hand of the deceased and there was an exit wound on the back of palm whereas two irregular entry wounds were found on the right side of the chest and after 3/4 cms track of both the wounds was united. First and second ribs of right side were found broken and both the lungs were damaged. In lower lobe of left lung, one piece of metal was found which was not in a round shape. According to him, the deceased had died due to aforesaid gunshot injuries. There is no reason to disbelieve the opinion given by Dr. N. S. Chouhan (PW-12) and therefore it is proved beyond doubt that the death of the deceased Veer Singh was homicidal in nature. 8. Initially, according to the FIR Ex.P-3, complainant Gyan Singh (PW-1), Rati Bai (PW-3) and Jahendra (PW-5) were the eyewitnesses in the case, however, complainant Gyan Singh (PW-1) turned his stand before the trial Court. He turned partly hostile before the trial Court. According to him, when he had gone to the spot, dead body of the deceased Veer Singh was lying and there was nobody whereas Rati Bai (PW-3) and Jahendra Singh (PW-5) have stated that Jahendra Singh (PW-5) was sleeping near the cot of deceased Veer Singh along with Rati Bai (PW-3) whereas Gyan Singh (PW-1) was sleeping inside the house. On hearing some noise, Jahendra Singh (PW-5) thought that someone had come to get his grain floured in the late night, then he and Rati Bai (PW-3) saw that the appellant Arvind @ Akhendra Singh had a half barrel mouser. On exhortation given by Bade Raja, Arvind @ Akhendra Singh fired with a gun and also abused the deceased Veer Singh with the words relating to his caste. Prima facie, the evidence given by Rati Bai (PW-3) and Jahendra Singh (PW- 5) appears to be acceptable but if it is examined minutely then there is a material contradiction in their evidence with their case diary statements and FIR. Prima facie, the evidence given by Rati Bai (PW-3) and Jahendra Singh (PW- 5) appears to be acceptable but if it is examined minutely then there is a material contradiction in their evidence with their case diary statements and FIR. Jahendra Singh (PW-5) gave case diary statement Ex.D-2 similar to the facts as mentioned in the FIR. According to that Gyan Singh (PW-1) and Jahendra Singh (PW-5) were sleeping on the first floor of the house and after hearing the noise of quarrel they jumped from the first floor. However, till then it is alleged that the appellant Arvind @ Akhendra Singh had already fired upon the deceased with a mouser gun. If Jahendra Singh (PW-5) and Rati Bai (PW-3) were sleeping near the deceased Veer Singh then no reason has been shown by the witness Jahendra Singh (PW-5) that as to why he did not intervene in the quarrel. It is stated that Rati Bai (PW-3) intervened in the quarrel and she was pushed by one of the accused Virendra but there is no description given by the witnesses that Jahendra Singh (PW-5) had also intervened in the quarrel. It clearly indicates that before the trial Court Jahendra Singh has told a falsehood that he was sleeping along with the deceased Veer Singh. It appears that he could hear the sound of gunshot and thereafter he jumped from the first floor of his house, till then the assailants had already disappeared. Otherwise Gyan Singh (PW-1), real brother of the deceased Veer Singh and witness Jahendra Singh would not have accepted that they could not see any culprit. Under these circumstances, the testimony of the witness Jahendra Singh (PW-5) appears to be doubtful. 9. Similarly, the story told by Rati Bai (PW-3) appears to be doubtful. She had stated in her case diary statement that his son Veer Singh was sleeping near the tractor whereas she was sleeping away from him. According to her case diary statement, exchange of words took place between Veer Singh and accused persons and thereafter she tried to save the deceased Veer Singh but the accused Virendra Singh pushed her. On the other hand, she has accepted before the Court that she had awaken before the gunshot and the deceased Veer Singh was held by three other accused persons and thereafter Arvind @ Akhendra Singh fired with the gun. On the other hand, she has accepted before the Court that she had awaken before the gunshot and the deceased Veer Singh was held by three other accused persons and thereafter Arvind @ Akhendra Singh fired with the gun. In cross-examination, para 7, she has accepted that appellant Arvind @ Akhendra Singh fired with a full barrel gun having two barrels whereas it was neither the case of the prosecution from the beginning nor had the witness Jahendra Singh (PW-5) stated about the double barrel gun which was used by the accused-appellant Arvind @ Akhendra Singh. Looking to these material contradictions, it is highly doubtful that the witness Rati Bai (PW-3) saw the incident. Possibility cannot be ruled out that in the morning when dead body was found at the spot Gyan Singh (PW-1), Rati Bai (PW-3) and Jahendra Singh (PW-5) cooked a story on the basis of previous circumstances and thereafter Gyan Singh (PW-1) lodged an FIR Ex.P-1, however, since facts mentioned in the FIR were quite different from the facts emerged in the post-mortem report, therefore, it is possible that Rati Bai (PW-3) changed her version before the Court because Dr. N. S. Chouhan (PW-12) gave his opinion in para 7 of his cross-examination that looking to the other signs on the body of the deceased Veer Singh it was possible that gunshot injuries would have been caused by 12 bore gun. If Rati Bai (PW-3) saw 12 bore double barrel gun in the hands of accused /appellant Arvind @ Akhendra Singh then there was no reason so that she could not have informed her sons Gyan Singh and Jahendra Singh about the weapon and they would have mentioned such a fact in the FIR Ex.P-3. Looking to the material contradiction, the evidence of Rati Bai (PW-3) becomes doubtful. 10. Rati Bai (PW-3), Jahendra Singh (PW-5) and Gyan Singh (PW-1) have accepted in the cross-examination that there was no enmity between the appellant and the deceased Veer Singh. According to them, since witness Sitaram (PW-6) took the deceased Veer Singh with him to plough the field of tribal person which was taken by Sitaram (PW-6) on lease, the appellant and his companions were annoyed with Veer Singh and therefore they committed the crime. According to them, since witness Sitaram (PW-6) took the deceased Veer Singh with him to plough the field of tribal person which was taken by Sitaram (PW-6) on lease, the appellant and his companions were annoyed with Veer Singh and therefore they committed the crime. However, Veer Singh was the employee of Sitaram (PW-6) and if there was any annoyance of the appellant Arvind @ Akhendra Singh and his companions then it would be against Sitaram (PW-6) and not against the deceased Veer Singh. Also Sitaram (PW-6) has accepted that when he along with Veer Singh had gone to the field to plough it, the appellant Arvind @ Akhendra Singh and his companions prohibited him and thereafter he came back without ploughing the field. Hence, no quarrel took place on the spot so that Veer Singh would have caused any annoyance to appellant Arvind @ Akhendra Singh and his companions. Under these circumstances, no motive is established by the prosecution with appellant Arvind @ Akhendra Singh so that he would have killed the deceased Veer Singh. The trial Court has mentioned that for conviction under section 302 of Indian Penal Code it is not required for prosecution to prove the motive. It is settled view of the Apex Court that motive is not an essential ingredient to prove the crime of murder. In this connection, the judgment passed by the Apex Court in the case of Atley vs. State of Uttar Pradesh, AIR 1955 SC 807 may be referred in which it is held that sometimes motive cannot be imagined and therefore if motive is established then it can be considered to be an additional piece of chain of circumstantial evidence, however, simultaneously it is also laid that if there was no motive with the assailants and they and the deceased were previously known to each other then the absence of motive will have a negative effect on the remaining evidence adduced by the prosecution. 11. Witnesses Narayan (PW-7), Ramdas (PW-9) and Kissu (PW-10) were examined as independent witnesses who appeared at the spot when quarrel took place between the assailants and the deceased Veer Singh. However, these independent witnesses have turned hostile. They have stated that when they reached the spot, the deceased Veer Singh was lying dead and no assailant was present. 11. Witnesses Narayan (PW-7), Ramdas (PW-9) and Kissu (PW-10) were examined as independent witnesses who appeared at the spot when quarrel took place between the assailants and the deceased Veer Singh. However, these independent witnesses have turned hostile. They have stated that when they reached the spot, the deceased Veer Singh was lying dead and no assailant was present. Testimony of these witnesses also creates a negative effect on the testimony of Rati Bai (PW-3) and Jahendra Singh (PW-5). 12. Evidence of Rati Bai (PW-3) and Jahendra Singh (PW-5) is contradictory to the opinion given by Dr. N. S. Chouhan (PW-12) in his post-mortem report Ex.P-15 and his cross-examination before the trial Court. According to the eyewitnesses, only one fire was made by appellant Arvind @ Akhendra Singh whereas Dr. N. S. Chouhan (PW- 12) found three entry wounds on the body of the deceased Veer Singh. Rati Bai (PW-3) has tried to state that there was one injury caused to the deceased Veer Singh on his palm but it was not stated by Jahendra Singh (PW-5). ASI P. N. Pal (PW-14), the investigating officer, who proved the seizure memo Ex.P-10 has found an empty cartridge of 315 bore along with one live cartridge of the same bore at the spot and it appears that direction of investigation was initiated towards such recovery. Possibility cannot be ruled out that the investigating officer placed such cartridges on the basis of FIR lodged by complainant Gyan Singh (PW-1) or the description of weapon is given in the FIR after seeing the spot with empty cartridge and live cartridge of 315 bore found at the spot. In this connection, if FIR Ex.P-3 is examined then prima facie it appears that it was lodged within time but if the registration of crime at Police Station Karera is considered by document Ex.P-21 then a doubt is created as to whether FIR was lodged within time or not. 13. According to the witnesses, the distance between the village Janori and outpost Sunari was 20 kms whereas distance between Sunari and Karera is 20-30 kms. 13. According to the witnesses, the distance between the village Janori and outpost Sunari was 20 kms whereas distance between Sunari and Karera is 20-30 kms. If ASI P. N. Pal (PW-14) had transmitted the copy of the FIR Ex.P-3 which was recorded at the outpost Sunari then it could be received by SHO, Karera within 2 to 3 hours and the case could be registered at Police Station Karera at about 12 o’clock in the noon whereas according to the document Ex.P.21 the case was registered at about 11:30 p.m. Outpost Sunari is an outpost and it is possible that no crime was registered in between 09 a.m. to 7 p.m. on 4-7-2003 then there was an opportunity to ASI P. N. Pal (PW-14) to get the matter registered in ante-time manner otherwise if FIR was lodged at 09 a.m. then its registration at Police Station Karera could not be done so late i.e. at 11:30 p.m. Hence, it is possible that ASI P. N. Pal (PW-14) went to the spot first, saw the entire scene of crime and thereafter FIR was recorded according to the circumstances found at the spot. Hence, a doubt is created that FIR Ex.P-3 was lodged much after the time which is shown in the FIR Ex.P-3 and a delayed FIR always creates a doubt upon the prosecution story. 14. According to Dr. N. S. Chouhan (PW-12), there were three entry wounds. Out of them, one caused on the palm of the deceased could be caused by any gun whereas wounds found at the right chest of the deceased could be caused by 12 bore gun. Dr. N. S. Chouhan (PW-12) found gun powder on the skin of the deceased Veer Singh on right side of the chest and there were two entry wounds on the right chest. If mouser was fired then there was no possibility of two entry wounds on the chest of the deceased Veer Singh. Such entry wounds could be caused by single fire if 12 bore gun was used and therefore, looking to the various signs on the body of the deceased Veer Singh, Dr. N. S. Chouhan (PW-12) has rightly opined that gunshots found on the chest would have been caused by a 12 bore gun. 15. Also Dr. Such entry wounds could be caused by single fire if 12 bore gun was used and therefore, looking to the various signs on the body of the deceased Veer Singh, Dr. N. S. Chouhan (PW-12) has rightly opined that gunshots found on the chest would have been caused by a 12 bore gun. 15. Also Dr. N. S. Chouhan (PW-12) has opined that two different wounds found to the deceased Veer Singh could not be caused by same fireshot because direction of two wounds was different and therefore wound caused on the palm of the deceased Veer Singh must be sustained due to fire done by another person from another direction in comparison to the wounds found on the chest and therefore according to Dr. N. S. Chouhan (PW-12) at least two fires would have been made upon the deceased Veer Singh caused by different persons with different angles. But Rati Bai (PW-3) as well as Jahendra Singh (PW-5) did not mention the fact that two fires were done in their presence. Similarly, it is not mentioned by Jahendra Singh (PW-5) that the appellant Arvind @ Akhendra Singh had a 12 bore gun. If appellant Arvind @ Akhendra Singh had fired with a mouser gun causing injury on right palm of the deceased then it was not a fatal injury and there is no explanation given either by Rati Bai or Jahendra Singh that as to how injury of second fire was caused on the right chest of the deceased Veer Singh which could be fired by 12 bore gun. 16. Rati Bai (PW-3) has tried to state before the trial Court that gun used by the appellant was a double barrel 12 bore gun but she has stated about only one fire whereas there is no explanation given by her as to how the firearm injury of palm of the deceased was caused. Also Rati Bai did not mention the presence of 12 bore gun in her case diary statement Ex.D-1. 17. Hon’ble the Apex Court in the case of Ganesh Datt vs. State of Uttarakhand, (2014) 12 SCC 389 has clearly opined that if there is a drastic contradiction between the medical evidence and ocular evidence whereas medical evidence is acceptable then the ocular evidence is discarded. In these circumstances, looking to the evidence given by Dr. 17. Hon’ble the Apex Court in the case of Ganesh Datt vs. State of Uttarakhand, (2014) 12 SCC 389 has clearly opined that if there is a drastic contradiction between the medical evidence and ocular evidence whereas medical evidence is acceptable then the ocular evidence is discarded. In these circumstances, looking to the evidence given by Dr. N. S. Chouhan (PW-12), it is clear that neither Rati Bai (PW-3) nor Jahendra Singh (PW-5) were the eyewitnesses. They saw the dead body in the morning and cooked a story with the help of Gyan Singh whereas complainant Gyan Singh (PW-1) took a somersault before the trial Court. Hence, testimony of eyewitnesses Rati Bai and Jahendra Singh cannot be believed. 18. If ocular evidence is discarded then circumstantial evidence against the appellant is to be assessed to connect him with the crime of murder. No motive could be proved by the prosecution so that the appellant would have killed the deceased Veer Singh. Similarly, no evidence of last seen is adduced. No possibility of dying declaration is shown by the prosecution. No extra judicial confession of the appellant Arvind @ Akhendra Singh has been recorded. The only circumstance which may go against the appellant is that a recovery of hand-made firearm was shown by investigating officer Angad Singh Kushwah (PW- 15) that he recovered a hand-made pistol and prepared the recovery memo Ex.P-12. But recovered pistol does not match with the description of gun as given by the witnesses which was used in the incident. According to Dr. N. S. Chouhan (PW-12), one 12 bore gun would have been used and the injury of palm could be caused by any other gun. But the gun allegedly recovered from the appellant Arvind @ Akhendra Singh was not a 12 bore gun. Similarly, witness Jahenra Singh (PW-5) and Rati Bai (PW-3) initially stated that a half barrel mouser gun was used by appellant Arvind @ Akhendra Singh and such description is given in the FIR Ex.P-3, however, the gun recovered from the appellant is not a half barrel mouser gun. It is a handmade mouser pistol. Hence, chain of circumstantial evidence is broken and the appellant Arvind @ Akhendra Singh could not be convicted of offence under section 302 of Indian Penal Code. The Special Judge has committed a gross error in convicting the appellant of offfence under section 302 of Indian Penal Code. It is a handmade mouser pistol. Hence, chain of circumstantial evidence is broken and the appellant Arvind @ Akhendra Singh could not be convicted of offence under section 302 of Indian Penal Code. The Special Judge has committed a gross error in convicting the appellant of offfence under section 302 of Indian Penal Code. 19. So far as offence under section 25/27 of the Arms Act is concerned, when it is not proved that the appellant Arvind @ Akhendra Singh was the assailant by recovery of a gun, he could not have been convicted under section 27 of the Arms Act and therefore, the trial Court has committed an error in convicting of offence under section 27 of the Arms Act. 20. The learned counsel for the appellant submits that the appellant has already undergone a huge period of custody due to conviction and therefore if he is punished for the offence under section 25 of the Arms Act, then that makes no difference to him, however, evidence of prosecution should be examined on merits. According to SDO(P) Angad Singh Kushwah (PW-15), a gun was recovered from the appellant Arvind @ Akhendra Singh by a seizure memo Ex.P-12. It would be apparent that incident took place on 4-7-2003 and gun was seized from the appellant Arvind @ Akhendra Singh on 14-7-2003 when he was arrested from bus-stand Dinara. When an accused is arrested then on his intimation under section 27 of the Evidence Act weapon could be recovered but there is no memo under section 27 of the Evidence Act recorded by the Investigating Officer. On the other hand, he tried to show that when the appellant Arvind @ Akhendra Singh was arrested he had a mouser gun with him and such a fact is shown in arrest memo Ex.P-2, however, if appellant Arvind @ Akhendra Singh was arrested at bus-stand of village Dinara then as to why the investigating officer Shri Angad Singh Kushwah (PW-15) did not take the witnesses from the village Dinara itself. He took Roshan Singh (PW-11) and Aslam @ Bhaiyyan (PW-8) as witnesses of arrest memo and seizure. Aslam @ Bhaiyyan (PW-8) is the resident of Karera whereas Roshan Singh (PW-11) is the resident of village Gwalia Police Station Sihor. No explanation is given by these witnesses about their presence at bus-stand Dinara when such seizure took place. Roshan Singh (PW- 11) has turned hostile. Aslam @ Bhaiyyan (PW-8) is the resident of Karera whereas Roshan Singh (PW-11) is the resident of village Gwalia Police Station Sihor. No explanation is given by these witnesses about their presence at bus-stand Dinara when such seizure took place. Roshan Singh (PW- 11) has turned hostile. He has stated that he was called by the police officers and he appended his signatures on various blank documents whereas Aslam @ Bhaiyyan (PW- 8) has accepted that he was called at the police station and Article A, a handmade pistol, was lying on the table and thereafter he appended his signature on the document Ex.P-2 and if the appellant Arvind @ Akhendra Singh was arrested at bus-stand Dinara then as to how neither witness Roshan Singh (PW-11) nor Aslam @ Bhaiyyan (PW- 8) told that such arrest and seizure was done at bus-stand Dinara. Looking to the evidence given by these witnesses, testimony of Angad Singh Kushwah (PW-15) also comes under doubt and it was not proved beyond doubt that any firearm was recovered from the appellant Arvind @ Akhendra Singh. The trial Court has committed an error in convicting the appellant Arvind @ Akhendra Singh for offence under section 25 of the Arms Act. 21. On the basis of aforesaid discussion, the appellant cannot be convicted of offence under section 302 of Indian Penal Code or under section 25/27 of the Arms Act. The trial Court has committed an error in convicting the appellant for the aforesaid offences. Hence, the appeal filed by the appellant, namely, Arvind @ Akhendra Singh appears to be acceptable and consequently it is hereby accepted. Conviction and sentence recorded by the trial Court under section 302 of Indian Penal Code and under section 25/27 of the Arms Act are hereby set aside. The appellant is acquitted from all the aforesaid charges. He would be entitled to get back the fine amount if he has deposited the same. 22. It is informed that appellant is in jail and therefore the Registry is directed to issue a release warrant without any delay so that the appellant may be released from the jail. 23. A copy of this judgment be sent to the Court below along with its record for information.