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Madhya Pradesh High Court · body

2019 DIGILAW 850 (MP)

HEM PAL v. STATE OF M. P.

2019-12-05

G.S.AHLUWALIA

body2019
JUDGMENT : – Today the case was listed for consideration of I.A. No 6049/2019 for suspension of sentence. However, the counsel for the appellant submitted that he may be heard finally. Accordingly, he is heard. This criminal appeal under section 374(2) of Criminal Procedure Code has been filed against the judgment and sentence dated 4-4-2016 passed by Sessions Judge, Shivpuri in Sessions Trial No. 197/2014, by which the appellant has been convicted under section 307 of Indian Penal Code and sentenced to undergo rigorous imprisonment of 10 years with a fine of Rs. 10,000/- with default imprisonment. 2. The necessary facts for disposal of the present appeal in short are that in the intervening night of 21-5-2014 and 22-5-2014 the complainant Bhojapal went to his hut after having his meal. In the night at about 02:30, the appellant came back to his house and he was not in a position to speak. His brother Ratanlal saw that the complainant had two bleeding wounds on the right side of his chest and neck and since the complainant was not in a position to speak and, therefore, by show of signs, he informed that he has been assaulted by 2-3 persons. Ratanlal immediately took the complainant to Police Station Kolaras District Shivpuri, where the FIR was lodged at about 05:45 in the morning, in which it was mentioned that the complainant was assaulted by 2-3 persons. On the basis of the said FIR, Crime No. 166/2014 for offence under section 307 of Indian Penal Code was registered. Injured Bhojapal was sent for medical examination and MLC report is Ex. P-10, thereafter he was referred to Gwalior for further treatment. Spot map Ex. P-2 was prepared by the police. On 1-6-2014 on the interrogation by the police, the complainant Bhojapal disclosed the name of three persons by giving it in writing. Statements of various witnesses were recorded. The appellant was arrested vide arrest memo Ex. P-4 and his shirt and axe were seized by seizure memo Ex. P-6. Blood stained earth and plain earth, one pair of slippers and empty bottle of liquor were seized from the spot by seizure memo Ex. P-7. 3. During investigation, one Saligram gave an application Ex. The appellant was arrested vide arrest memo Ex. P-4 and his shirt and axe were seized by seizure memo Ex. P-6. Blood stained earth and plain earth, one pair of slippers and empty bottle of liquor were seized from the spot by seizure memo Ex. P-7. 3. During investigation, one Saligram gave an application Ex. P-9 to the SHO Police Station Kolaras to the effect that on 21-5-2014 at about 12:000 in the night, he had loose motion and while he was coming back from the river, then he saw that the appellant was going back to his house and was having axe in his hand and two persons were running towards the forest who were Shishupal and Kalla. It was also mentioned that since this witness was afraid, therefore, the application was made belatedly on 2-6-2014. Accordingly, the co-accused persons Kalla and Shishupal were also arrested by arrest memo Ex. P-11 and P-12. Axe and the cloth of the appellant were sent for forensic examination. FSL report is Ex. P-14. Patwari prepared the spot map Ex. P-15 and the query report of the doctor was obtained by Ex. P-16. Different papers of treatment was seized from the Medical College, Gwalior and the dying declaration of the appellant was also recorded by the Naib Tahsildar. 4. After completing the investigation, Police filed the charge-sheet under section 307 of Indian Penal Code against the appellant and two other co-accused persons Shishupal and Kalla. 5. By order dated 24-9-2014, the trial Court framed charges under section 307 of Indian Penal Code. The appellant as well as co-accused persons Kalla and Shishupal abjured their guilt and pleaded not guilty. 6. The prosecution in order to prove its case examined Ratanlal (PW-1), Bhojapal (PW-2), Lalipal (PW-3), Nepal (PW-4), Kheru (PW-5), Saligram (PW-6), Dr. Kalpit Agrawal (PW-7), Rajkumar Sharma (PW-8), Harishankar Sharma (PW-9) and Dr. V.P. Narve (PW-10). 7. Co-accused Shishupal and Kalla examined Smt. Sharda Pathak (DW-1) in their defence. 8. The trial Court after appreciating the ocular as well as the documentary evidence acquitted the co-accused persons Shishupal and Kalla and convicted the appellant for offence under section 307 of Indian Penal Code and sentenced him to undergo rigorous imprisonment of 10 years and a fine of Rs. 10,000/- with default imprisonment. 9. 8. The trial Court after appreciating the ocular as well as the documentary evidence acquitted the co-accused persons Shishupal and Kalla and convicted the appellant for offence under section 307 of Indian Penal Code and sentenced him to undergo rigorous imprisonment of 10 years and a fine of Rs. 10,000/- with default imprisonment. 9. Challenging the judgment and sentence passed by the Court below, it is submitted by the counsel for the appellant that the trial Court has relied upon the dying declaration, which was recorded by the Naib Tahsildar, Ex. D-1 as well as the police statement of the appellant recorded under section 161 of Criminal Procedure Code, Ex. D-2. It is further submitted that the names which were disclosed by the injured Bhojapal (PW-2) in writing Ex. P-3 have been disbelieved by the trial Court and, accordingly, in spite of the fact that the names of the acquitted co-accused Shishupal and Kalla were mentioned in the said paper, the trial Court has disbelieved Ex. P-3. It is further submitted that the trial Court has relied upon the evidence of Lalipal (PW-3) and if the said evidence is considered, then it is clear that at about 07:30 in the night, the appellant and the injured Bhojapal were seen consuming liquor but the said fact is not sufficient to hold that it was the appellant who has committed the offence. The trial Court has also not relied upon the application dated 2-6-2014 made by Saligram Ex. P-9 and the trial Court has given undue importance to the human blood found on the shirt of the appellant and axe seized from him. It is submitted that the circumstances which have been found proved against the appellant are not sufficient to hold him guilty. 10. Per contra, it is submitted by the counsel for the State that the trial Court after removing the chaff from the grain has acquitted the co-accused persons Shishupal and Kalla and in the light of the circumstances, which were found proved against the appellant, he has been convicted and the judgment of conviction does not call for any interference. 11. Heard the learned counsel for the parties. 12. 11. Heard the learned counsel for the parties. 12. Neither the State nor the complainant has challenged the acquittal of the co-accused persons Shishupal and Kalla, therefore, any reference of these two persons would be in the context of the case put forth by the prosecution against the appellant. 13. Dr. Kalpit Agrawal (PW-7) had found the following injuries on the body of the injured Bhojapal : – (i) Incised wound on the right side of the chest measuring 9 x 2 cm x muscle deep. (ii) Incised wound 12 x 1 x muscle deep on the right side of the neck. Both the injuries were caused by sharp edged weapon. The MLC report is Ex. P-10. 14. In cross-examination, this witness has stated that the injured was brought to him at about 5:15 and he took about 20-25 minutes to examine him and the MLC was written at 05:40. This witness has further admitted that he had not measured the depth by using prob. He also admitted that he had not inquired from the injured as to how he had sustained those injuries. 15. Dr. V.P. Narve (PW-10) has proved the case-sheet of the injured Bhojapal while he was admitted in J.A. Hospital, Gwalior. It is submitted by the Dr. Narve that on 27-5-2014 the surgery department had transferred the injured to his department and at that time, he had 9 cm long stitched wound and a tracheostomy tube was installed, as a result of which, the patient was not in a position to speak. The food was being given through ryles tube. The case-sheet is Ex. P-17. The injured was discharged on 7-7-2014. In cross-examination, this witness has admitted that the case-sheet Ex. P-17 and discharge and prescription Ex. P-18 are not in his handwriting. However, they are in the handwriting of Dr. Jatin Verma. He also admitted that during the period, the victim had remained in his department, he had not disclosed the name of any accused persons by giving it in writing. Thus, it is clear that the injured Bhojapal (PW-2) had sustained two incised wounds on the right side of his chest and he remained admitted in J.A. Hospital, Gwalior till 7-7-2014. 16. Now the only question for consideration is that whether the appellant Hem Pal is the author of the injuries sustained by the injured Bhojapal. 17. The FIR Ex. Thus, it is clear that the injured Bhojapal (PW-2) had sustained two incised wounds on the right side of his chest and he remained admitted in J.A. Hospital, Gwalior till 7-7-2014. 16. Now the only question for consideration is that whether the appellant Hem Pal is the author of the injuries sustained by the injured Bhojapal. 17. The FIR Ex. P-1 was lodged by Ratanlal (PW-1) on 22-5-2014 at 05:45 in the morning at police station Kolaras which is situated at a distance of 25 km from the spot. As per the FIR at about 02:30 in the morning, the injured Bhojapal (PW-2) had come to the house and he had two incised wounds on the right side of his chest and was not in a position to speak and by show of sign, he had disclosed that he has been assaulted by 2-3 persons. Accordingly, the FIR was lodged against unknown persons. 18. Ratanlal (PW-1) in his Court evidence has supported the FIR Ex. P-1 and he has once again stated that the injured had come back in the house at about 02:30 in the morning. However, he improved his version and stated that he was informed by the injured that one of the assailants was Hem Pal, however, he did not disclose the name of other two persons. He further clarified that the injured Bhojapal (PW-2) was not in a position to speak but by show of signs, he had disclosed the incident and, accordingly, he went to the police station, where the FIR Ex. P-1 was lodged. From Kolaras hospital, injured was referred to Shivpuri hospital and from Shivpuri hospital, he was referred to Gwalior hospital and the treatment of the injured continued for one and half months in Gwalior hospital. Spot map Ex. P-2 was prepared. In the cross-examination, this witness has clarified that the house is situated at a distance of 500 steps from the field and the injured had left the house at about 08:00 in the night. He further stated that they took about one and half hour to reach the police station and they left the village at about 04:00 in the night for the police station and they reached the police station in between 05:00-06:00 AM and remained in the police station for about one hour. He further stated that they took about one and half hour to reach the police station and they left the village at about 04:00 in the night for the police station and they reached the police station in between 05:00-06:00 AM and remained in the police station for about one hour. His brother Bhojapal (PW-2) was not in a position to speak in Kolaras as well as Shivpuri hospital and thereafter they took him to Gwalior hospital, where the treatment continued for one month and nineteen days and only thereafter his brother started speaking. When he went to the police station, he was accompanied by his brother Bhojapal, who had disclosed by indicating that the assailants were 2-3 persons. This witness further admitted that he could not understand the name of assailants. He further stated that his brother Bhojapal had not disclosed the name of the assailant by giving it in writing. He further admitted that there is no light in the field. He further admitted that his brother had fallen unconscious in the house itself and regained his consciousness in Gwalior after three days of the incident. He further disclosed that his brother had not disclosed the name of anybody by giving it in writing to the police. He further stated that he had remained with his brother during his treatment and no lady officer had ever recorded the statement of his brother. Thereafter he clarified that one lady officer had recorded his statement and had obtained his signature. This witness has further stated that he had disclosed to the police in his FIR that his brother had disclosed name of the appellant as one of the assailants but could not explain as to why the said fact is not mentioned in the FIR Ex. P-1. He further admitted that for one and half months, his brother had not disclosed the name of anybody but thereafter he again clarified that his brother had disclosed the names after four days of the incident by giving it in writing to the doctor. It was further stated that in fact the doctor had obtained written information from his brother and thereafter the said doctor had kept the paper slip with him and that paper slip was not given by the doctor to the police personnel in his presence. It was further stated that in fact the doctor had obtained written information from his brother and thereafter the said doctor had kept the paper slip with him and that paper slip was not given by the doctor to the police personnel in his presence. He further admitted that his village is a dacoit affected area, however, denied that the incident was committed by any of the dacoit. He further admitted that he has also hired the services of an Advocate and also admitted that before giving evidence, he has met with his Advocate. 19. Bhojapal (PW-2) has stated that at about 12:00 in the night the appellant as well as the acquitted co-accused persons came there and sat on a cot and asked to accompany them. When he refused to do so then acquitted co-accused Kalla caught hold of his scalp hair and the appellant Hem Pal caught hold the collar and the acquitted co-accused Shishupal gave two axe blows. Thereafter, the appellant as well as acquitted co-accused persons ran away. He lost his consciousness. After one hour of the incident, he regained his consciousness and went back to the house. He was not in a position to speak, therefore, by show of signs, he disclosed that he has been assaulted by three persons and thereafter he felt unconscious. He was taken to Kolaras hospital, from where he was referred to Shivpuri and from Shivpuri, he was referred to Gwalior hospital, where he remained admitted for two months. During this period, one Tahsildar had recorded his statement and even at that time, he was not in a position to speak and he had merely disclosed the number of assailant by showing signs. Since he was not in a position to speak, therefore, he had not disclosed the name of anybody to the Tahsildar madam. One Police Daroga came to him, to whom he had given the name of the assailants by writing it on a paper and he had disclosed the name of the appellant as well as the acquitted co-accused persons. The said paper is Ex. P-3. In cross-examination, this witness has admitted that when he was taken to the police station, he was unconscious but he regained his consciousness in the police station. They reached to the police station at about 04:00 PM. Police personnel did not ask him to disclose the name by writing. The said paper is Ex. P-3. In cross-examination, this witness has admitted that when he was taken to the police station, he was unconscious but he regained his consciousness in the police station. They reached to the police station at about 04:00 PM. Police personnel did not ask him to disclose the name by writing. He further admitted that he can read and write. He further admitted that he did not disclose the name of any accused to the police. He further admitted that when he reached the police station although he was not in a position to speak but he was hearing and everything was visible. Even when he was brought to the Shivpuri hospital, he did not disclose the name of any accused by writing it on a paper and after reaching to Gwalior hospital also he did not disclose the name of any assailant to the doctor by writing on a paper. The dying declaration Ex. D-1 was recorded by Naib Tahsildar and on 22-5-2014 his statement Ex. D-2 was recorded by the police officer. Certain omissions and contradictions were also pointed out to this witness. He further admitted that he had never disclosed the name of assailants to any of the family member, but only after 8 days of the incident, he had disclosed the name to the Naib Tahsildar by giving it in writing. He further stated that the Naib Tahsildar had asked him to disclose the name of assailant by writing on a paper. He further admitted that at that time, two police personnel were standing at a distance. He further stated that he had not given any statement to the police personnel and again stated that he had disclosed the name to the police personnel by giving it in writing and these facts were disclosed to the police personnel after one month or 15-20 days of the incident. After his discharge, the police did not record any statement under section 161 of Criminal Procedure Code. He further clarified that for two months, he was not in a position to speak, therefore, the question of giving statement does not arise. He further stated that his village is a dacoit affected area and further denied that on the date of incident, he had consumed liquor. He further clarified that for two months, he was not in a position to speak, therefore, the question of giving statement does not arise. He further stated that his village is a dacoit affected area and further denied that on the date of incident, he had consumed liquor. He further admitted that it was a dark night and further admitted that he had not consumed liquor along with any of the assailant. He further admitted that the cousin brother of the appellant Hem Pal is a Chowkidar of the village and he assists the police. He further admitted that he belongs to Gadariya caste, however, expressed his ignorance that whether the people belonging to Gadariya caste have become dacoit or not and he further denied that as the appellant was an informer, therefore, he had an enmity. 20. Lalipal (PW-3) was declared hostile. However, in the cross-examination by the Public Prosecutor, he stated that on 21-5-2014 at about 06:30 PM, he had seen the appellant in the company of the injured and the appellant was having an axe in his hand and at about 08:00 PM when he was going towards the temple, he saw that the appellant and the injured were consuming liquor. Thereafter, at about 02:30 AM, he saw the complainant in injured condition. This witness in the cross-examination has admitted that the complainant Bhojapal is his nephew and stated that on the date of incident also the complainant was under the influence of liquor. Further he stated that at about 09:00 in the night itself, he came to know about the incident. When he heard the shouts of the complainant Bhojapal, thereafter, he went to the house of Bhojapal and informed the family members about the alarm raised by the injured and, thereafter, he, Ratanlal, Nepal and 4-6 persons went to the field and found that the injured was lying on a cot and from there, they brought him to the house. The appellant was unconscious and was not in a position to speak. However, he further admitted that in spite of the incident, he did not disclose to anybody that he had seen the appellant in the company of the injured or he had seen that they were consuming liquor. He further admitted that their village is a dacoit affected area. 21. However, he further admitted that in spite of the incident, he did not disclose to anybody that he had seen the appellant in the company of the injured or he had seen that they were consuming liquor. He further admitted that their village is a dacoit affected area. 21. Nepal (PW-4) has also stated that the injured came back to the house at about 02:30 AM and he was not in a position to speak and only by showing his fingers, he had disclosed that the assailants were three in number. This witness has further stated that on 22nd police came to the village and inquired from appellant Hem Pal, who disclosed that axe is kept in the house, whereas his slippers are lying in the field. Axe and shirt were seized by seizure memo Ex. P-6 and his memorandum is Ex. P-5, arrest memo is Ex. P-4, blood stained and plain earth as well as the slippers were seized from the spot vide seizure memo Ex. P-7 and the axe is article – A. Shirt is article – B and slipper is article - C. 22. Kheru (PW-5) has also supported the prosecution case and he has also a witness of the memorandum as well as seizure of articles from the spot as well as from the appellant Hem Pal. Saligram (PW-6) turned hostile and he has denied that he had given any application to the police on 2-6-2014. Rajkumar Sharma (PW-8) has stated that he had recorded statement of the injured Ex.D-2. Harishankar Sharma (PW-9) had written the FIR Ex. P-1. By requisition Ex. P-10 this witness had sent the injured to the CHC, Kolaras for medical examination. On 22-5-2014, he had prepared the spot map Ex. P-2 and the statement of the witnesses were recorded. This witnesses has also stated that on 1-6-2014 he went to the J.A. Hospital, Gwalior and the victim was not in a position to speak and when he inquired from him about the incident, then he demanded for a paper and thereafter wrote the name of the appellant as well as of acquitted co-accused Shishupal and Kalla and paper slip is Ex. P-3 and this witness has also stated about other investigation done by him. 23. From the evidence which has been given by the witnesses, it is clear that the evidence of the injured Bhojapal (PW-2) appears to be doubtful. 24. P-3 and this witness has also stated about other investigation done by him. 23. From the evidence which has been given by the witnesses, it is clear that the evidence of the injured Bhojapal (PW-2) appears to be doubtful. 24. It is not the case of Bhojapal that he had met with the appellant at about 06:30 or he had consumed liquor with him, whereas Lalipal (PW-3) had stated that on 21-5-2014 at about 06:30 PM, he had seen the injured Bhojapal in the company of Hem Pal and at about 08:00 in the night had seen them consuming liquor. Further, Lalipal (PW-3) has given a deep dent to the prosecution story. He has further stated that at about 09:00 in the night itself, he had heard the shouts of the injured and thereafter he went to the house of Bhojapal and informed about the alarm raised by Bhojapal, thereafter, all of them went to the field where he saw that the injured was lying on a cot, from where he was brought to the police station and injured was unconscious, whereas it is the case of the prosecution that the incident took place at about 12:00 in the night. The injured on his own went to the house at about 02:30 AM and disclosed by show of signs that he was assaulted by 2-3 persons. Thus, the prosecution has failed to prove the exact genesis of the incident. 25. Further, in the dying declaration Ex. D-1, the deceased had disclosed name of Hem Pal only, but in the Court evidence, he has specifically stated that he had not disclosed name of anybody to the Tahsildar, who had recorded dying declaration Ex. D-1. The prosecution has not examined Naib Tahsildar, who had recorded the dying declaration but she has been examined as defence witness. Thus, it is clear that the dying declaration recorded by the Naib Tahsildar Ex. D-1 is not reliable as the same has not been supported by the injured Bhojapal (PW-2) in his Court evidence and on the contrary he has stated that he had not disclosed the names of any assailant in his dying declaration. Thus, it is clear that the dying declaration recorded by the Naib Tahsildar Ex. D-1 is not reliable as the same has not been supported by the injured Bhojapal (PW-2) in his Court evidence and on the contrary he has stated that he had not disclosed the names of any assailant in his dying declaration. Furthermore, since the injured has not died, therefore, the statement recorded by Naib Tahsildar in the form of dying declaration cannot be treated as admissible in law, but it can always be treated as first statement by the injured and since the injured Bhojapal (PW-2) himself has disowned the same, therefore, the prosecution cannot get the advantage of disclosure of name of appellant in the said dying declaration Ex. D-1. 26. So far as the other circumstance of recovery of blood stained shirt, axe and slippers of the appellant is concerned, the blood group found on the said articles has not been ascertained although the blood was found to be a human blood. 27. So far as the document Ex. P-3 is concerned in which the injured Bhojapal had disclosed the names of the assailants by writing is concerned, the trial Court itself has disbelieved the same. The trial Court has relied upon the police statement of the injured Ex. D-2 to hold that only name of Hem Pal was disclosed. 28. In view of material omissions and contradictions in the evidence of the witnesses as well as in view of the fact that the injured Bhojapal (PW-2) was not in a position to speak even during the period of treatment, this Court is of the considered opinion that the disclosure of the name by the injured in his police statement Ex. D-2 cannot be said to be reliable. Further the prosecution has itself failed to prove as to whether the incident took place at about 12:00 in the night or at 09:00 in the night. Further, so far as the recovery of axe is concerned, it is not the case of the complainant that he was assaulted by the appellant. On the contrary, in examination-in-chief itself he has stated that axe blow was given by Shishupal and the only allegation made against the appellant was that he had caught hold the collar. 29. Further, so far as the recovery of axe is concerned, it is not the case of the complainant that he was assaulted by the appellant. On the contrary, in examination-in-chief itself he has stated that axe blow was given by Shishupal and the only allegation made against the appellant was that he had caught hold the collar. 29. Thus, where the complainant Bhojapal (PW-2) himself has not made any allegation of assault by the appellant, then the recovery of axe with human blood loses its importance. Further, Ratanlal (PW-1) is the brother of the injured Bhojapal (PW-2). Lalipal (PW-3) is also related to the injured as admitted by Ratanlal (PW-1) in paragraph 7 of his cross-examination. Nepal (PW-4) is the brother of injured Bhojapal (PW-2) and Kheru (PW-5) is the son Ratanlal (PW-1). Thus, it is clear that entire prosecution story is based on evidence of recorded witnesses. 30. Although it is well established principle of law that the evidence of any witness cannot be discarded only on the ground that he is related witness, but his evidence is liable for minute scrutiny and in the considered opinion of this Court, the evidence of Ratanlal (PW-1), Bhojapal (PW-2), Lalipal (PW-3), Nepal (PW-4) and Kheru (PW-5) could not withstand the minute scrutiny. 31. Thus, this Court is of the considered opinion that the prosecution has miserably failed in establishing the guilt of the appellant Hem Pal. Accordingly, he is acquitted of the charge under section 307 of the Indian Penal Code. As a consequence thereof, the judgment and sentence dated 4-4-2016 passed by Sessions Judge, Shivpuri in Sessions Trial No. 197/2014 is hereby set aside. 32. The appellant is in jail. He be released immediately if not required in any other case. 33. The appeal succeeds and is hereby allowed.