%"Bi" IMTHE HIGH COURT. P^,THS._JUDICATUBE AT JABALPUR (I3.pj,l Crimiiial Appeal No. s,s- %^s- /2( APPSLLAM' I.'Iikhail Toppo S/o IC Toppo aged abQUt 48 yea3-'s R/o yill- ege 'T-imoi'ala P»S»Jashpur .. Nagar, Distt. Jashpi-u" M.P, 't •- . • . ' . V e-"r. s 'u s The State of M.P. through r.S. Palshanjur Daastt. Karikar K.P-. Crime No,?—43/96 . . S.T.No.: -453/96 • Under Seetion—502jAf I:.P,&. P«S. Pakhanjur Distt. Kankar M.P* / \ • - CRIMI?ffiL APPEAL U/S 374 (2) OF Cr<,P.C. ,( ^ -i'-l" /T S'1 -( r- r <^«. •^: Ol a»w 3" W .11 ^ 11> 1l'i' •a ',. I- !C/1 .^i € ^ •I- 1j j1 1 1» !5 1 1 1§ III 1 1§ Ig 1» ^ •~^>.1 "^, "•f 1 HiGH COURT OFCHHATTISGARH AT BILASPUR Crlminal Aopeal N0. 25SS/2000 Mifattall Toppo vs. ^tate of Chaatti^grli Coram: Hon'ble Shri Fakhruddin and Hon'ble Shri DhirendraMisIira.JJ !f'-. - -, .- Present: Siat. Kiran Jam., CQiuisel ibr ftie appeUaiit. Shriu.N.S. Deo, Gdvt. Advocate/Addittonal Public ProsecutQr. for fhe State J U D u M E N T- Per Dhirendra Mishra, J, Heard learaed counsel for the parties. 2. The appeUaathas preferTed uusappeal underSection 374(2) of Code of Criminal Procedure as he is convicted py the judgtuent dated 16-8-2000 passed leamed Add.ilional Sessions Judge, Kaaker ui Sessions Trial No. 453/1996 under Section. 302 of Indian Peual Code and seutenced totuidergo unprisotunent for Itfe. 3. The case ot' the prosecution in brief is that Constable Meena Kuitiar of Special Armed F'orce of Pakliaajur Coiupany lodged a report in Police Station Pakhaajur on 29-2-1996 at about 22.45 hrs to fhe effect that he was on the rear guard duty ia fhe ru^ht froin 9.30 to 12.00 hrs. He had exchaaged hisduly wifh Coustable Mikhail Toppo at about 10.30 hrsia fhe night. When hewas dischalgiug his duty aiid iD. nearby, Constable TFaoch.aa Prasad and Constable Abdul Majid Khaa were sittiug, at fliat time, Mikhail Toppo anaed wifh. 303 Riiue came fhere froin Mess side. Coastable Trilochan Prasad enquired as to how he was coiniug anned wifh riffle. even after his duty Uours, at that tiine Mikhaii Toppo fired from. his service riflle upori Abdul Majid Khaa. aad 1 i N 1 i II x .^ '-T 4' til4- inurdered hita. He also chased Uie infoniiant aud Guard Coiaiaandant Trilochau Prasad wiftinfHe. He took shelter ia the poUce station and narrated the uicident. At f&at tirae, Mikhail Toppo, Mess Goniiiiander Bhaiya Lal, Shiv Prasad,' Vedi-am, M. Bahadur aad Guard Coininaader Trilochaii Prasaa were -preseat aad they had seen ttie incident. The crune was registered. Durmg itivesfigation Mergr uitnnatiou of Ex. P-8 was also recorded. T'he dead aody ofAbdul Majid Khaa was sent fpr autopsy to Givit Hospitai,pakhatijurwhere Dr. M.C. Vyas P.W. 1 conducted post mortem over the dead body of fhe deceased and submitted his report ofEx. P-1. An iuquest 01" Bx. r-10 was perfonned over the dead body of fh.e deceased in t&e presence of the witnesses after due notice to the witaesse^. Tlrree Uve cartridgss pf303 bore riffle and two einpties were taken iute possession vide Ex. P-12 from fhe custody of the accused Mikhail T'oppo. His service rifile 303 ^ffas seized f^ ; '^ , • froia fhe accused vide Ex. P-13. A blood stamed shirt and full-paiit of luuformWas seized froin the appetiant vide Ex. P-14. Blood stained soil aad plain Soil were seized vide BX. P-15. Sealed packet received froin iiospital contaimng blood stauied Bariiyaii aad a portion of the wozuid ui fhe sealed packet was taken iato possession yide ISx. P-16. A nieiao vide Ex. P-17 was sent to the Execufive R'lagistrafe requestirig hun to reiuaia present durmg iuquest over the dead body. The seized ardcles - blood staiaed soils, weapQU ofoitence, Uye eartridges aiid enipties etc. were seirt lor exaiiiuiatK)n to tlie F^rensifi^caence Laboratoiy vide^ P-18. Tfae report of iFbrensic Seie&ee l^oratory 1s Ex< P-19-A. The certjfieate issucd tiy Uie GcAipanv GoliUaaiider, Pakhailjur reganliug on-duiy einployees' on tUe aate ofincident is Ex,P-2u. AS coinpiettng mvestj^atlon, chai^e slicetiwas aled in tiie CouTt Q^<-i]M3jeiaL,R^sgistrate t|;lrst Cl^^ ®haauflrata0purwlto^^^ '•!:-. Court ofSession, Jagdalpur and same was reeeived on transfer for tnal by fhe leamed Additional Sessions Judge. 4. Leamed Additional Sessions Judge fi-amed charge iinder Section 302 oflndiaa Penal Gode agauist the appeBaiit. The appellaiit adjured his guilt. Prosecution ia oraer to estabUsh fhe charges agauist the appeUaat examiried as laany as 17 witQesses, fhereafter stateiuent of aecused luider Section 313 of Code of Criininal Procedure was recorded /f. . . . in whicli theappeuant denied fhe ciBcuiiistauGes appearfag against him. ia the prosecution case a&d pleaded innocence and false implication. He also examined tu.e defence witaess No; 1 Kustun Das. 5. Leamed T'rial Court afterbear-mg tiie Additional Public Prosecutor aud COUUSGI for fhe appellaat convicted and sentenced the'appeUaat as aDove, . • . - - 6. Hosueidal deafh of Abdul Majid Khan is not ia dispute. Even 1 otherwise from: fhe evidence of P.W. 1 Dr. M.C. Vyas, who had conductEd post inortem over the dead body of fhe deceased aad subinitted report Ex. P-1 and who had noticed entiy wound aud exit wound over fhe person 6f the deGeased aiicl who had opined th.at the cause ol tn.e deatti was sfiock, Jiaeiuorrliage and injury tovitalorgau.s common. cause, rupturc ofUver aad right iTuig also ruptured,clot bloQd found Thoracic Cavity and the same was homicidal iQ natitre, hoinicidal death ofAbdul Majid Ktiaa is established. 7.1 yo far as uxwolveuieirt pf thfi appeUant in criine iit question ^ coiicemed, the, leamed Court bekw after recorditig findiugs ]fhat the deceased Abdul Majid Kltaa died hoiiiicidal death aud he died because ot aullet uiiuiy troin nttle ana on uie basis Qt eye-witness account given P.W. 17 Constable Meena Kuiaar and other niaterial, held the -~ appeUaat guUty. u -J v' ^, I 8. Leamed counsel for fhe appellant subizutted that there is no luotive. The prosecuuon tias notestablisheu any ruotive to the appeuaiit for causing deafh of Abdul Majid Khaa. Adiuittedly, fhe iacident took place ia ftie dark aad as gucll fliere was no occasion lor eye-witaess Constable Meera Kum.ar to witness the incident asa. this aspect Iias also been overlooked by uie Courtbelow. it is fui-Uier argued that even as per fhe prosecution cases, at the relevaut time, fhe appeUan.t was discharging his official duty of @uard and ia the absenee 6f sarictton under Section 197 Qt Cr.P.C. fh.e whole prosecution is vitiated and, therefore, the impugned judginent caEmotbe upheld. 9. On fbe ofher nand, learaed couii.sel for fhe State supports the iuipugnedjudgiaent. , ' ; 10. We Uave heard -tne leamed counsel for fhe parties. We have penised fhe inaterial availa'ble on record, oral and docuiiientary ^ . evidence as also the iinpugned judgiu.ent. 11. The 303 riffie aad 3 uve cartridges aad two eiapties were seized froni the custody of the appeUan.t vide Ex. P-12 and P-13 in presence of witaess Kusum. Das and Ftreetpal Siagh by Sub inspector K.K. Nag. The seizure raeino has been duly proved by P.W. 10 Preetpal Siagh who has stated that the weapon of offence aad the cartridges were seized JTOUI Uie accused. The statemen.t of this wituess firids support by the statement ol Sub Inspector S.R. Nag P.W. 8 who had effected the seizure. 4'tie seizea nttle was exaiai&ecl by Kenior ycientist, forensic Science Laboratoiy, Sagar who has given report Ex. P-19A aad opiaed that fhe riffte ia question was ia order, it was reeenfly Sred and ou. eoiiiparison, he has farfher opitied fhat seized eiupties were flredtSy the seized riftle. Thus froiu: the abovewitaess, it is proved fhat the einpties ''which were seized from. ttte appellantwere fired fi1oia the 1-iHle seized ^ '-^,?v ~'~~^1: from me appellarlt. T'his fact finds fuTther corroboration by the cerfificate ofEx. P-20 which shows that the above rtfue was issued to the appeBant. Dr, M.0. Vyas who has condueted post niortein over the cteacl Doay ot ttie cleceasect aiicl Jias touncl ui]unes as aescnBed aboye, has also stated that ia his. post inorteia Teport while describing Uie ui]unes, ne iias inenuoned t&at ttie above ui]unes were Gausea uy bullet. So far as iiivolvement- of the^a^ ia fhis ofience is .'•^•- •. .:• ••'. ••'..'." .'.'•••' -.'.. :.' coneeriied, P.W. 17GoastablfeMeeaaKHinarv>^haslo^ F.I.K. of Ex. P-7 has categoiicaUy slated t&at atlhB tmie Qf;iacident Mikliail Toppo fired at Abdul Majid Khaa in Iris presenee.At ftiat tiTne he was ia fhe Rear Guard (iuty and had takea fhis duty froin Mikliail Tpppo aitd he was sitftug bver the wooden pjaque near Mahua tree along wifb: TrUocfian aad Majid Kliaa. At that tiine at about ll.OO P.M. accused came B-ont Mess sule./Qit'beuig Hitemiptea by Tritoclian fhat Bow fle 'v: : • ': ^ - was coBiing wiffa rime as he was not on duty, &e caine Uere wi^^ aau stra^htway fired at Majid Khan who coUapsed there. Thereafter TrilochaiL aad fhis witaess went to fhe police station. aad ilarrafed fiie iricideat. TIus witiiess was uninoved ia ftle Gross-examiilatiou and defence has not been able to eiicit aiiythiag which niakes the evidence of this witness uiitru.stworthy QF 'tmreiiable. The stateiiient of fhis witness ftLrther fiiids cornoBoratkin from the stateineiit of P.W. 5 Constable'Vedram. who has also stated ftiat Iie was on. tfaen^lit duty on the date df iaeideiit atong with Meeria Kumar, Stuwprasad: axid the cteceased coustables. Bofh. fhe deceased GQnstableS were sittuig beaieafh Mahua tree wKereas he was sleepirig iu the guard rooai. At abQut 8.30 he slepl after taking his ineals; One;Iiour ftiereaiter Guard Gbmiajaadar -Trilocllan caiae ttifire and iaformsft that ui&^cused lias fiEEJa at Majjd !:' .:;' ': and. Iie fiMtherstatea 1B tatse pQSi^nwitIiyour rilUfi.^^^% (^ ^l '~v abQve witness is further corroborated by promptly lodged F'.I.R. as also from fhe post inorteiii report. So far as argiunents of fhe couiisel for me appellaat mat fiie prosecution has lailed to prove niotive ia the inslant case is concero.ed, it is establislied law fhat where there are eye- witaesses to the iDLcident, mfftive losses aU its sigiuficaETce. 12. In the case of Bikau Paadev aad others -v- State of Bihar reported in (2003) 12 SCC616, me Hon'T3le Supreme Courthas held iii ff.: para 13 that even ifthe absence pfniotive as aUeged is accepted, that is ot no consequence aaa pales uito uisigruticaace wnen direct evidence establisnes tne cruae. 13. The second arguineat advauced by fhe leamed counsel for the appellant fhat the alleged iacident is of the nignt aud, merefore, it was not possible for the wito.esses to idehtij&' fhe appeliaiit as perpetrator ol the oftence. Tlus argunient also .Uas no substa&ce tnasniucJi as ttie » witnesses are constables m. t&e same compaay, Uiey were engaged ui fhe idght guacd duty aad faiiuliar wifh each ofher. The fire was shot froiu a close raage as stated by P.W. 17 Meena Kumar. In the aforesaid circuiiistaaces, ttie question of' identily on the ground fhat it was niglit is wimout auv substaace aad there is evidence avallable on record to show that at the relevaat tiine, uie place was iuumiuated wltli electric bulbs. T'he thud argument advailced by the counsel for the appeltaiit Uiat the offence if auy is coininitted by the appeUaiit wuile he was on duty ot UieJ'ear guard aad. as sucn lie could not nave been proseeutecl wifhout san.ctlon froia fhe coinpetent ayt&ority as per tfae provisions liuderSection. 197 of Gr.P.C. is concemed,fhe above argument is also withciut substance bccause me stppellaiit had left ttie place atfer ctoiirpteting his duty. He Iiad haruled over his charge torp.W. 17 . Qoiistable Meena Kuiaar and fhereafter he came fhere anned|wifll riffle :1 / •^,,; after obtaining the same from. Mess. gven otherwise it was no part of liis of&cial duty to fire at his feUow constable who was on guard duly and as such ffae act alleged a^ainst fhe appellant tiad no nexus whatsoever wltJi Iiis Qfiicial duty and in ftie atbresaid circuinstaaces, no sanction as per provisions of Section 197 ol Cr.P.C. was necessaiy for, prosecutin.g fhe appellaat. However from. perusal of fh.e record as also froia fbe evidence, we tuid tliat fhis cletence was never taken by ttie ff. '.•.•'.. •.:•.• . . • appeilaat durmg trial and evenih tne inemo ot appealno sucli grounct is fhere, and same is raised tbr ftie tirst time duruig arguiiienf. 14. Thus on the basis ofabove discusskins, we are offhe coasidered opmion Uiat fhe prosecution has estaBtisIied th.e cnarge against tlie appellant by adductag reliable evidehce aad fiie Coult below h,as correcUy held the appeuaut guUty under Section 3u2 of l.P.C. aad senteneed as above by fhe impugned juttginent. Pathak • / Sd/- Fakhruddin Judge •i -^- Sd/- DHDUENDRA MISHRA Judge