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2020 DIGILAW 75 (MP)

State of Madhya Pradesh v. Akhilesh

2020-01-10

S.A.DHARMADHIKARI, VISHAL MISHRA

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JUDGMENT : Vishal Mishra, J. 1. Note- Cr.A. No. 533/2009 (Dabbu alias Rajesh v. State of M.P.) dismissed as withdrawn on the prayer made by the counsel for the appellant pointing out the fact that in pursuance to the letter dated 20th August 2019 received from the office of Superintendent of Jail, Gwalior an application has been filed by the learned counsel appellant seeking withdrawal of the appeal. 2. Similarly Cr.A. No. 538/2009 (Neeraj alias Banti v. State of M.P.) was dismissed as withdrawn vide order dated 20.08.2019. 3. Present appeal being Cr.A No. 315/2014 remains for consideration by this court. 4. The present appeal has been filed against the judgment of acquittal dated 6th July 2019 whereby the learned trial court in Sessions Trial No. 142/2007 has convicted the accused Dabbu alias Rajesh and Neeraj alias Bunty and rest of the persons have been acquitted of charges framed by the learned trial court. As per the prosecution story on 30th, December 2006 at about 9:25 p.m an information was received by police station telephonically by Banne Khan alleging therein that in village Mastura Premnarain S/o. Dwarika has been murdered by gunshot injuries. On the basis of information B.S. Sikarwar SHO Police Station Belgarah along with force reached on the spot and Dehati Nalisi Ex. P-3 was got recorded by Radhelal S/o. Prem Narain to the effect that his father and other people of village Mastura were having a dispute with respect to ploughing of fields and on the date of incident at about 5 p.m., the aforesaid persons came to his house armed with guns and lathis and have started abusing the complainant and his father at the time Premnarain was not at his home, therefore complainant's mother Meera and sister Aneeta has stated that he is not at home and has gone to fields to water the fields. The accused persons went to the fields and complainant followed them. Accused persons stopped his father on the way while he was returning from his fields and Akhilesh, Banti and Dabbu all three fired from their guns and bullet hit on the head of deceased Prem Narayan and he fell down on the spot. Thereafter they picked up the body of his father and has thrown the body in the wheat fields. The complainant shouted and screamed. Thereafter they picked up the body of his father and has thrown the body in the wheat fields. The complainant shouted and screamed. Thereafter his Phoofa Harswaroop came there and on seeing Phoofa accused persons ran away. On the basis of dehatinalsi, an FIR Ex. P/6 was got registered at Crime No. 81/2006 (by Head Constable Hasan Khan PW/10) for the offence registered under sections 147, 148 and 149 of IPC. PW-14 R.S. Sikarwar has issued safina form Ex. P/1 and Ex. P/2 Lash Panchnama was got prepared. Thereafter, completing the formalities like preparation of spot map, seizure memo etc, the body of the deceased was sent for postmortem and Dr. B.S.L. Yadav PW/11 has conducted the postmortem on 31st, December 2006 and has mentioned the cause of death to be by gunshot injuries. The accused persons were arrested and after completion of investigation, the police authorities have filed the challan, on the basis of which charges were framed against accused persons who denied charges therefore they were put to trial. The prosecution examined as many as 15 prosecution witnesses and in defence 9 witnesses were examined. 5. Learned trial court after appreciation of entire evidence available on record and after going through the oral as well as documentary evidence has arrived at a conclusion that prosecution was successful in proving charges against Pappu alias Rajesh and Neeraj alias Bunty and accordingly they were convicted under Section 302 of IPC along with other sections by judgment dated 6th, July 2009 but the prosecution has failed to prove charges against remaining accused persons therefore they were acquitted of all the charges. 6. Three appeals were preferred against judgment dated 6th, July 2009. Two appeals by the convicted accused and one by the State Government against acquittal of the accused persons. Cr.A. Nos. 533/2009 and 538/2009 were dismissed as withdrawn, as already pointed out hereinabove Present Cr.A. No. 315/14 has been filed against acquittal of the accused persons. 7. Learned counsel for the State has argued that learned trial court committed grave error in acquitting six persons and convicting two persons on the same set of evidence. Once the learned trial court has found the incident to be proved then merely on the basis of inconsistency in some statements, the trial court should not have acquitted the respondents. 7. Learned counsel for the State has argued that learned trial court committed grave error in acquitting six persons and convicting two persons on the same set of evidence. Once the learned trial court has found the incident to be proved then merely on the basis of inconsistency in some statements, the trial court should not have acquitted the respondents. As they have actively participated in commission of offence and the charges which were framed against the accused persons were offences punishable under Secs. 147, 148, and 302/149 of the IPC. Thus with the aid of Secs. 147, 148 and 149 of IPC they ought to have been convicted by the learned trial court. Had it been a condition that all the accused persons convicted or acquitted of the charges on the same set of evidence then the matter would have been different, but in the present case, the learned trial court on the same set of evidence has convicted two accused persons and has acquitted six persons which in the facts and circumstances is not permissible in the eyes of law. He has drawn attention of this court to the statements of eye witnesses PW-4 Radhelal, PW-1 Aneeta and independent witness PW-2 Mansookha and Statement of PW-9 Girraj Sharma and has argued that from the perusal of the statements of aforesaid witnesses, it is apparently clear that acquitted persons have actively participated in commission of offence. It is alleged that Aneeta (PW-1) in her statement of Examination-in-Chief has specifically taken names of all the accused persons. In para-1 and para-2 she has categorically stated that Akhilesh and Banti have fired on the deceased Prem Narain. Similarly, Mansookha (PW-2) in Examination-in-Chief has categorically taken the names of all the accused persons and has clearly stated that guns were fired by Dabbu, Akhilesh and Banti on Prem Narain which resulted in death of Prem Narain. He has further alleged that TIP was conducted by the police authorities wherein the accused persons were duly identified. He has read-over the statement of PW-4 Radhelal Sharma who has also taken names of all the accused persons including the acquitted persons and has categorically taken names of Akhilesh, Banti and Dabbu who were stated to have caused injuries by fire arm. He has read-over the statement of PW-4 Radhelal Sharma who has also taken names of all the accused persons including the acquitted persons and has categorically taken names of Akhilesh, Banti and Dabbu who were stated to have caused injuries by fire arm. Thus, the State counsel has to establish the fact that the witnesses have clearly stated the names of all the accused persons who have actively participated in commission of offence. Thus, the learned trial court has committed grave error in acquitting six accused persons despite the fact that the witnesses have categorically stated against them. 8. Counsel for the State has drawn attention of this court to Dehatinalisi Ex. P-3, FIR Ex. P-6, seizure memo Ex. P-32 and Test Report Ex. P-35. It is argued that on the basis of prompt Dehatinalisi, FIR has been registered. As per the prosecution story on the basis of telephonic information received at Police Station, the police authorities along with force went to the spot and found the deceased Prem Narain's body lying in the fields. On the basis of information collected on the spot, dehatinalisi was got penned down and thereafter FIR was registered. From the perusal of dehatinalisi and FIR, it is clear that names of accused persons are categorically taken by the complainant and is reflected in FIR and dehatinalisi. The seizure memo confirms the recovery of weapons from the accused and the injuries were also medically corroborated. Thus, by the same set of evidence, the learned trial court committed error in convicting two accused persons and acquitting all others. He has further drawn attention of this court to the postmortem report Ex. P-16 wherein the gunshot injuries were clearly reflected. Statement of Dr. B.L Yadav PW-11 is read-over to the Court wherein he has categorically mentioned regarding gunshot injuries to the deceased and the cause of death is also shown to be Hemorrhagic shock due to bullet injuries. It is submitted that the incident has been proved by the statements of witnesses and it is medically corroborated. Thus, the learned trial court committed a grave error in convicting two accused and acquitting all other accused persons. It is submitted that the incident has been proved by the statements of witnesses and it is medically corroborated. Thus, the learned trial court committed a grave error in convicting two accused and acquitting all other accused persons. It is submitted that there is common object and intention of all the accused persons who have inflicted injuries and has caused death of Prem Narayn as they all came on the spot jointly and has inflicted injuries which is clearly reflected from the statements of prosecution witnesses that all the accused persons came to the spot jointly armed with deadly weapons and has committed the offence. Statement of PW-9 Girraj Sharma who is the witness of seizure memo is also read-over to this court to demonstrate that there is seizure of weapon i.e. guns. FSL report Ex. P-35 is also being pointed out to this court wherein articles A-1 and A-2 are guns which were seized and were used in commission of offence and as per the FSL report the guns were found to be in working condition and gunshots were fired. Thus, it is clear that the accused persons jointly came to the spot and has actively participated in commission of the offence. Seizure Memo Ex. P-12 was also shown to the Court. Thus, he has argued that despite of ample evidence available on record the learned trial court has acquitted the respondents of all the charges which is unsustainable and deserves to be set aside. 9. Per contra, counsel appearing for the respondents has argued that the learned court has not committed any error in acquitting the respondents of the charges and convicting two persons Dabbu alias Rajesh and Neeraj alias Banti for holding them guilty of committing the murder of Prem Naryan. He has read-over paras-22 and 35 of the judgment of the trial court and has argued that the learned trial court has minutely analyzed the case of the prosecution and after going through the statements of various witnesses i.e. statements of eye witnesses Radhelal Sharma PW-4 and Aneeta PW-1, independent witness Mansookha PW-2, witness of seizure Girraj Sharma PW-9 and also statement of Doctor has rightly arrived at a conclusion that respondents herein have not committed any offence. The statement of Mansukaha PW-2 is found to be note- worthy of credence. The statement of Mansukaha PW-2 is found to be note- worthy of credence. Statement of Radhelal PW-4 who happens to be eye-witness of the incident and also son of the deceased and the statement of Harswaroop PW-7 (Phoofa) are contrary to each other that Radhelal has stated that when he shouted then Harswaroop (PW-7) came to the spot and as per the statement of Phoofa Harswaroop on the date of incident he was in village Banheri and on the receipt of information regarding murder of Prem Narayan, he went to the village at night between 11 and 12 pm. He has also stated that he is not knowing the persons who have committed the murder of Prem Narayan. From the aforesaid, it is admittedly clear that presence of Harsauroop on the spot is doubtful and the statement of Radhelal with respect to the incident that Harsauroop came on the spot. When Radhelal shouted cannot be believed on the basis of statement given by Harsauroop. Thus, the main eye witness was rightly disbelieved by the learned trial court. He has further read-over para-72 of the judgment wherein the learned trial court has considered statement of Radhelal and Meera wherein Radhelal has stated that as soon as he reached home he immediately communicated the incident to his mother Meera and has stated that the accused persons came on the spot and surrounded his father and gun-shots were fired by Banti, Dabbu and Akhilesh which has resulted in death of his father. In cross-examination PW-6 Meera has stated that she has narrated the similar facts to the police authority but if such facts are not recorded in her statement u/s. 161 then she is unaware of the facts. Thus, statement to the extent that all the eight accused persons have surrounded the deceased Premnaryan appears to be incorrect as it has not been corroborated with the statements recorded by the police authorities. 10. Respondent counsel has further argued that the person who could be the main witness i.e. Banne Khan to whom the first information was received on telephone has not been examined by the prosecution which is considered by the learned trial court in para-38 of the judgment. There is no reason shown by the prosecution that why Banne Khan was not examined. He could be the key witness of the prosecution. There is no reason shown by the prosecution that why Banne Khan was not examined. He could be the key witness of the prosecution. He has further drawn attention to paras-46, 69 and 77 of the judgment and has argued that the learned trial court has considered evidence in to-to and has found that the statements of the material witnesses i.e. eye witnesses PW-1 Aneeta and PW-4 Radhelal Sharma and statement of Harsauroop (PW-7) are self contradictory statements. He has drawn attention of this court to the medical witnesses and the PM report of the deceased Prem Narayan and has argued that two gunshot injuries were found by the prosecution and the aforesaid gunshot injuries were attributed to Dabbu alias Rajesh and Neeraj alias Banti and both have been convicted by the trial court. As far as Akhilesh, who is said to be carrying gun and firing of gun is concerned, there is no seizure made by the prosecution of any gun from Akhilesh. Thus, in absence of seizure of any gun from Akhilesh and conviction of other two accused who have fired gunshots to the deceased and the statements of the material prosecution witnesses they were rightly convicted by the trial court, but there is no seizure from Akhilesh and there is no third gunshot injury caused to the deceased, therefore, the aforesaid aspect creates serious doubts over the prosecution story regarding commission of offence by Akhilesh. Thus, the learned trial court after considering the aforesaid has extended the benefit of doubt and has acquitted the remaining accused persons. Counsel for the respondents has further argued that from the perusal of the FSL report, it is apparently clear that Articles A-1 and A-2 are seized. As per the prosecution, there is no seizure of any gun from respondent Akhilesh. Thus, when there are two gunshot injuries received and those gunshots have been fired from the guns which have already been seized and recovered and the persons who have fired those guns have already been convicted by the court, there is nothing on record to show that Akhilesh was carrying gun and he has used the gun for commission of offence. It is further argued that he has specifically taken the plea of alibi and he was not at the place of incident and his presence on the place of incident is doubtful. It is further argued that he has specifically taken the plea of alibi and he was not at the place of incident and his presence on the place of incident is doubtful. The aforesaid aspect was duly considered in para 83 of the judgment. Thus presence of other co-accused on the spot was doubtful. The learned trial court has rightly considered the aforesaid aspect and has extended the benefit of doubt and have acquitted them. 11. The Hon'ble Supreme Court in cases of Yogesh Singh v. Mahabeer Singh and Ors reported in (2017) 11 SCC 195 , Baldev Singh and Anr. v. State of M.P reported in (2003) SCC (Cri) 1740 and State of Madhya Pradesh v. Ramcharan and Ors. reported in 1985 MPLJ 714 wherein it is held that in appeal against acquittal, normally the High Court should refrain from interference in the findings given by the trial court unless the findings given by the learned Trial Court are totally perverse and contrary to evidence on record. Even if there is slight doubt in the prosecution story, then benefit of such doubt should be extended to the accused which has rightly been done by the trial court. 12. The Hon'ble Supreme Court in the case of Yogesh Singh v. Mahabeer Singh and Ors. reported in (2017) 11 SCC 195 has held has under:- 15. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts. Here, it is worthwhile to reproduce the observations made by Venkatachaliah, J., in State of U.P. Vs. Krishna Gopal and Anr., (1988) 4 SCC 302 : "25. ... Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. 26. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. 26. The concept of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice." 13. The Division Bench of this court in the case of State of Madhya Pradesh v. Puran and Ors. reported in 2008 (3) M.P.H.T 444 has held has under:- 8. It is the settled law that in an appeal against acquittal finding cannot be reversed unless they are perverse when two views are possible from the evidence on record, in that case also no interference can be made in appeal. 14. Considering the aspect of re-appreciation of evidence in case of appeal against the judgment of acquittal, the Hon'ble Supreme court in the cases of Kali Ram v. State of Himachal Pradesh (1973) 2 SCC 808 , Upendra Pradhan v. State of Orissa (2015) 11 SCC 124 and State of Rajasthan v. Raja Ram (2003) 8 SCC 180 , the Hon'ble Supreme Court in Upendra Pradhan (supra) has held as under:- "14. Taking the First question for consideration, we are of the view that in case there are two views which can be culled out from the perusal of evidence and application of law, the view which favours the accused should be taken. It has been recognized as a human right by this Court. In Narendra Singh and Another v. State of M.P., (2004) 10 SCC 699 , this Court has recognized presumption of innocence as a human right and has gone on to say that: "30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between 'may be' and 'must be'. 31. It is also well known that even in a case where a plea of alibi is raised, the burden of proof remains on the prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a Higher Court (see Dhanna v. State of M.P., Mahabir Singh v. State of Haryana and Shailendra Pratap v. State of U.P.) which had not been adhered to by the High Court. 33. We, thus, having regard to the postmortem report, are of the opinion that the cause of death of Bimla Bai although is shrouded in mystery but benefit thereof must go to the appellants as in the event of there being two possible views, the one supporting the accused should be upheld." (Emphasis Supplied) 15. The decision taken by this Court in the aforementioned case, has been further reiterated in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 , wherein this Court observed thus: "7. ......Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, or the purpose of ascertaining as to whether any of the accused committed any offence or not. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, or the purpose of ascertaining as to whether any of the accused committed any offence or not. (see Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference." (Emphasis Supplied)" 16. Thus, in view of the aforesaid facts and circumstances of the case, and the law laid down by the Hon'ble Supreme Court the judgment of acquittal has rightly been passed by the learned trial court acquitting the respondents by extending benefit of doubt to the respondents. 17. Therefore, the same does not call for interference. Henceforth, the present appeal filed by the State is hereby dismissed having no substance.