---1--- HIGH COURT OF MADHYA PRADESH BENCH : INDORE (Division Bench: P.K. Jaiswal & Mrs S.R. Waghmare, JJ.) Criminal Appeal No.91/2004 Indersingh S/o Kalyansingh Banesingh S/o Kalyansingh Bhanwargiri S/o Nanugiri V/s State of Madhya Pradesh ***************************************************************************** Shri C.L. Yadav, Senior Advocate with Shri Sunil Yadav Advocate for the appellants. Shri Deepak Rawal, Government Advocate for the respondent. ***************************************************************************** JUDGMENT (14.12.2011) Per P.K. Jaiswal, J. Appellants herein namely Indersingh (A1), Banesingh (A2) and Bhanwargiri (A3) have filed this appeal under Section 374 of Cr.P.C., 1973 against the judgment and order of conviction dated 17.11.2003, passed by the Sessions Judge, Dewas in Sessions Trial No.131/2002, whereby the trial Court convicted the appellants under Section 302/34 of I.P.C. and sentenced them to undergo imprisonment for life. 2. It may be noticed that along with the accused/appellants four other persons namely Mohangiri, Bhagwangiri, Mukesh and Narendrasingh were also put to trial, but by the impugned judgment the trial Court acquitted them mainly on the ground that the first informant Manohardas (PW1) has not disclosed their names, as they were not named in the FIR as well in his police statement and later on during his Court statement he has implicated them in the alleged offence. 3. The prosecution case was that at about 6 A.M. on 27.1.2002 first informant Manohardas (PW1) was returning after ---2--- answering the call of the nature to his house, he saw that Balwansingh @ Balwantsngh (since deceased) was also returning to him home and when he reached at village road (Gali) of village Amarpua, in front of the house of Rashid Khan, suddenly Indersingh (A1), Banesingh (A2) and Bhanwargiri (A3) being armed with knife and sword inflicted stab injuries on him. On hearing the shriek of Balwansingh @ Balwantsngh, PW1 reached at the place of occurrence and saw that all the above three persons were mercilessly inflicting injuries to him. Number of other villagers also came at the place of occurrence and saw the incident. Due to the injuries sustained by Balwansingh @ Balwantsngh, he fell down and became unconscious. The report was lodged by PW1 at 9.05 in the morning on 27.1.2002 at Police Station Bagli of district Dewas vide Crime No.19/02. PW1 appended his thumb impression in the FIR (Ex. P/1) which was written by Station House Officer M.L. More (PW9). As per Crime Details Form (Ex.P/24) filled up by PW9, showing map/trace of the spot, the place of occurrence is shown at place (1). In front of the said place houses of Rashid Khan, Mohan Kumhar, Omprakash Tailor and Mohan Kumar are shown at place (3), (4),(5) & (2). Place (8) is surrounded by barbed boundary of shrubs and 'Bada' of Gopal Verma. The place of occurrence is village road, which goes up to the the 'Nala' (drainage) which is shown at place (9). The road is towards north to south. 4. It is alleged that on hearing the shriek of Balwansingh @ Balwantsingh, Devkaran (PW2), father of the deceased, Manohar Singh (PW3), brother of deceased and some villagers came on the spot and witnessed the incident. On seeing them the accused persons ran away towards river side. Thereafter, PW1 and PW3 took the injured Balwansingh @ Balwantsngh to Chapara on motorcycle owned by PW3. The motorcycle was driven by PW3 and PW1 was sitting as a pillion driver along with ---3--- injured Balwansingh @ Balwantsngh and from Chapara they hired one Jeep and took the injured to M.Y. Hospital, Indore where he was declared dead. Kailash, telephone operator of M.Y. Hospital, Indore telephonically intimated the sudden death information to Police Station Sanyogitaganj, Indore that Narayansingh, maternal uncle of the deceased brought Balwansingh @ Balwantsingh on dead condition at M.Y. Hospital, Indore. On the basis of the said information Murg No.0/21/02 was registered under Section 174, Cr.P.C.for investigation by Head Constable Jagdish Prasad (PW10). On the basis of the said information, vide Ex-P/28 Murg No.3/02 was registered at Police Station Bagli, District Dewas. The intimation of death was received at 11.30 PM on 27/01/2002. Thereafter, the dead body was examined, spot map Ex-P/5 was prepared. The inquest report was prepared vide Ex-P/31 on 27/01/2002 by Police Station Sanyogitaganj Indore in presence of Surendra son of Devkaran (real brother of the deceased), Narayan Singh son of Devisingh (maternal uncle of the deceased), Mansingh, Kantilal and Manoharsingh, villagers of village Amarpura. They signed the inquest report and identified the dead body and stated that the same was of deceased Balwansingh @ Balwantsngh. PW9 performed inquest of the dead body and sent it for postmortem examination. 5. On 27/01/2002 Dr. Ravindra Chaudhary (PW12) conducted postmortem examination on the body of the deceased. As per opinion of the Dr. Ravindra Choudhary (PW.12) deceased Balwantsingh died of shock and haemorrhage due to multiple stab injuries to vital parts of the body. The death was homicidal in nature. All the multiple injuries are sufficient to cause death in the ordinary course of nature. The postmortem was conducted within 24 hours since the death. ---4--- 6. During investigation 161 statements of the witnesses were recorded on 27/01/2002 itself. After completion of the investigation charge-sheet was filed before the Additional Chief Judicial Magistrate, Bagli, who in turn committed the case to the Court of Sessions. The learned Sessions Judge framed charge under Sections 148, 302/149 of IPC and in alternative Section 302/34 of IPC has been framed against all the seven accused persons. The accused persons abjured their guilt and stated that they have been falsely implicated in the alleged offence. The trial Court after considering the statements of the eye- witnesses acquitted the four accused persons but convicted the appellants under Section 302/34 of IPC and sentenced them, as aforesaid. 7. We have heard the learned counsel for the parties and gone through the material placed before us. 8. It is submitted by the learned senior counsel for the appellants that the FIR is ante time and was manipulated just to implicate the present appellants in the alleged crime. He also submitted that PW2 and PW3 have not seen the incident, nor they are eye-witnesses of the case. It is also submitted that spot of the occurrence is different. It is somewhere in Nala (drainage). The dead body of the deceased was lying there. He submitted that the murder was held in the midnight and thereafter his dead body was lying at drainage and in the morning they came to know about the death of deceased Balwansingh @ Balwantsngh. It is also submitted that A1 and A2 were through out with the deceased till he was cremated in the late evening, on 27/01/2002. It is further submitted that PW1 is not a reliable eyewitness. He, in the FIR as well as in his police statement has stated that the present appellants have committed the murder of the deceased, whereas this witness in his Court statement named four more accused persons and ---5--- stated that they were armed with deadly weapons like knife and sword and had caused fatal injuries to the deceased. In respect of PW2 and PW3, who are father and brother of the deceased, learned senior counsel for the appellants has submitted that they were not present on the spot, because in the FIR their names do not find place and it has been stated by the PW1 that number of villagers came at the place of incident. Lastly, it is submitted that there are material omissions and contradictions in the statements of PW1, PW2 and PW3 and submitted that in such circumstances the prosecution story itself becomes doubtful; however, the learned trial Court, without appreciating the evidence of PW1, PW2 and PW3 committed an error in convicting the appellants for the aforesaid charge and prayed for their acquittal 9. On the other hand, learned Government Advocate drew our attention to the reasonings assigned by the trial Court particularly paragraphs 29, 32 and 38 of the impugned judgment and submitted that PW1, PW2 and PW3 were present at the place of occurrence and they had witnessed the incident and the learned trial Court after appreciating their evidence has rightly convicted the appellants under Section 302/34 of IPC and the view taken by the trial Court is possible view and no case for acquittal is made out and prayed for dismissal of the appeal. 10. The prosecution examined five eye-witnesses i.e. PW1, PW2, PW3, Rajendra (PW4) and Babulal (PW5). PW4 and PW5 were declared hostile, as they did not support the case of the prosecution. We have also noticed that the FIR (Ex-P/1) lodged immediately after the incident i.e., within three hours from the date and time of occurrence. 11. PW1 Manohardas in Paragraph 1 of his statement has deposed that in the morning when he was returning after answering the call of nature and was going to his house he saw ---6--- that in front of the house of Rashid Khan, A1, A2, A3 and four other accused persons namely Mohangiri, Narendra Patel, Bhagwangiri and Mukesh Patidar surrounded the deceased and were inflicting stab injuries to him by knife, sword, churri and gupti. In paragraph 2 he has deposed that all the accused persons are of his village Amarpura and he knows them very well. In paragraph 3 he has deposed that after hearing the cry of deceased Balwansingh @ Balwantsngh, his father PW2, brother PW3 and other villagers came at the place of occurrence and witnessed the incident. When accused persons ran away towards culvert/river, he, PW3 and other villagers took the injured to Chapara on a motorcycle and from Chapara he was taken to Indore in the Government vehicle. He reported the matter at Bagli Police Station vide Ex-P/1. This witness in his examination-in-chief has very categorically stated that in the FIR he named only three accused persons (A1, A2 and A3). Due to anxiety he could not give the names of four accused persons and, therefore, their names are not written in the FIR. In paragraph 5 he deposed that the place of occurrence is village passage (Gali) having width about 4-5 feet. He has further deposed that at one side of passage there is fencing of barbed shrubs and at the other side of the passage houses of Mohan Kumhar, Rashid Khan and Rajendra Tailor are situated. He further admitted that the passage starts at “Neem Chowk” of village and goes up to the drainage (Nala). He also admitted that his house is behind the house of Mohan Kumhar, Rashid Khan and Rajendra Tailor. He further deposed that one more passage is situated there which goes from his house to the drainage in front of the house of Mohan Kumhar. In paragraph 6 he has deposed that he uses both the passages as his way. He also admits that on the date of incident Mohan Kumhar, Rajendra Tailor and Rashid Khan were residing in their ---7--- respective houses along with their families.On 27/01/2002, Rashid Khan was not in his house as he was at his agriculture field. He also deposed that Rajendra Tailor and other villagers were present at the place of occurrence but he did not disclose the name of other villagers. 12. PW1 also stated that total 8-10 persons gathered at the spot and when the injured was taken from the spot at that time he was alive but unconscious. From the place of occurrence they took deceased Balwansingh @ Balwantsngh to Chapara. He also admitted that in his village Amarpura no one is having jeep and therefore, Balwansingh @ Balwantsngh was taken in motorcycle owned by the deceased himself and he was sitting on the motorcycle as pillion rider along with Balwansingh @ Balwantsingh The motorcycle was driven by PW3 Manoharsingh (brother of the deceased). He also admits that from village Chapara they had taken Balwansingh @ Balwantsingh to Bagli Hospital at Bagh. He has no knowledge whether Narayansingh Sarpanch, Thakur Mansingh, Kantilal Verma and Manohar, son of Harnath Singh also came to Bagli Hospital or not. He has further deposed that Rajendra Tailor and Babu did not come to Bagli Hospital, nor he has any knowledge whether Surendra, real brother of the deceased was with them at Bagli Hospital or not. In paragraph 7 he has admitted that PW2, father of the deceased was not present at Bagli Hospital. He further deposed that doctor of Bagli Hospital, after seeing Balwansingh @ Balwantsingh directed them to take him to Indore. In paragraph 7 he further admits that from Bagli hospital to Indore Balwansingh @ Balwantsingh was taken in a Government Jeep which was arranged by the Government Doctor of Bagli Hospital. He also admitted that from the place of occurrence to Chapara and from Chapara to Bagli Hospital it took around one hour. At Bagli Hospital Government vehicle was arranged by ---8--- the Government doctor in which Balwansingh @ Balwantsingh was taken to M.Y. Hospital, Indore. This witness very specifically denied that from Bagli for Indore Hospital deceased was taken in a jeep. In paragraph 8 this witness further admits that at Bagli Hospital they stayed for five minutes only and no sooner the Govt. doctor of Bagli Hospital referred him to Indore Hospital, immediately without loosing any time they proceeded for Indore. Apart from Govt. vehicle one jeep was also with him and the said jeep followed the Govt. vehicle till Indore. 13. It is not in dispute that inquest report (Ex-P/31) was prepared at Indore and as per the said report, five persons were present at Indore and they are Surendra (real brother of the deceased), Narayan (maternal uncle of the deceased), Mansingh, Kantilal and Manohar (villagers of village Amarpura), but this witness (PW1) in paragraph 8 of his statement has deposed that he had not seen any one of them at Indore hospital. This witness denied that before reaching M.Y. Hospital, Indore from Bagli Hospital, they first went to Suyash Hospital Indore. He further admitted that the road between Bagli to Indore is not very good. In paragraph 9 he has further deposed that after clinical examination at M.Y. Hospital, Indore he was declared dead and his postmortem was conducted at M.Y. Hospital, Indore. Thereafter, his dead body was taken to his village Amarpura and the same was cremated on 27.1.2002 it self at 06.00 PM in the evening. In paragraph 11 this witness has deposed that SDO(P) Bagli came at M.Y. Hospital, Indore and made certain queries from him and his statement was also recorded by the said SDO(P) at M.Y. Hospital, Indore. This witness has further deposed that before recording his statement at M.Y. Hospital, Indore by SDO(P) Bagli, on the basis of his report PW9 registered the crime at Police Station Bagli. In paragraph 12 of his statesmant he has deposed that when he ---9--- had gone to lodge the report at Bagli Police Station at that time clinical examination of Balwansingh @ Balwantsingh was conducted by doctor at Bagli Hospital. He has further admitted that the report was lodged by PW9 himself, in his own handwriting. He has further deposed that after lodging the report at Bagli Police Station one Police Constable of said Police Station was with him from Bagli Hospital to Indore, but he does not remember his name nor he asked any detailed particulars from him. In paragraph 13 of his statement this witness has admitted that A1 and A2 were arrested at the time of cremation of the deceased by Bagli Police. In paragraph 15 he has further admitted that at the time of lodging of report he has stated the police personnels that PW2 and PW3 were present, but there is omission in the said police report. At the time of lodging of FIR he has also intimated that Rajendra and Babu have also witnessed the incident. He admitted that though the names of the above four eye-witnesses are not recorded in the FIR. 14. PW2, Devkaran in his statement has deposed that on hearing the shriek of his son he reached the spot and when he was on way to the place of occurrence Rajendra Tailor met him and he intimated that accused persons were inflicted injuries to his son. PW3 also accompanied him. He has deposed that all the seven persons were inflicting injuries on his son and thereafter, they ran away towards drainage side. After that his son (PW3) and PW1 taken him to Bagli and from Bagli they had gone to Indore. In his cross-examination PW2 very specifically admitted that width of village passage (Gali) is 4-5 feet and one side of passage is surrounded by barbed shrubs fencing and other side of the passage is surrounded by houses of Mohan Kumhar, Rajendra Tailor, Babu and Rashid Khan. On the date of incident Babu, Rajendra Tailor and Mohan Kumhar were residing in their respective houses along with their family. He ---10--- also admits that house of PW1 is behind the houses of Rajendra Tailor and Babu. In paragraph 10 he has deposed that immediately after the incident the deceased was taken to Bagli Hospital on a motorcycle because in his village no one is having jeep. This witness also admits that when the deceased was taken to Bagli Hospital he had not accompanied with him. He also stated that he has no knowledge whether his son Surendra was along with them or not ? In paragraph 12 he admits that he has not gone to Police Station for lodging the report. In this para he also admits that immediately within two hours from the time of incident police party came to his village at about 09.00 A.M. in the morning. He has also stated that for the first time police party of “Kamlapur Chowki” reached his village. They were two- three in number and they were along with In-charge of Police Chowki, Kamlapur. (Kamlapur Chowki comes under Police Station Bagli). After coming to village they immediately started investigation. He narrated the entire incident to them. He has further deposed that he had no knowledge when police personnels came from Bagli Police Striation, because he was at his house. In paragraph 13 he has deposed that after cremation of his son police personnels came to his village. He in his police statement has stated that PW1 seen the incident but there is omission in his police statement(Ex-D/1). 15. PW3 Manoharsingh in his statement has deposed that all the seven accused persons were inflicted injuries to his brother. After the incident, he and PW1 took the deceased to Chapara on a motorcycle and from Chapara to Bagli they had gone in a jeep and directly reached to Bagli Police Station. He also stated that only PW1 had gone to Bagli Police Station whereas he was with the deceased at Bagli Hospital. After clinical examination, Balwansingh @ Balwantsingh was referred by the doctors of Bagli Hospital for M.Y. Hospital, Indore where he was declared ---11--- dead. In respect of width of village passage and houses of Rajendra Tailor and Babu he supported the statements of PW1 and PW2. In paragraph 8 he has deposed that he and PW1 took the deceased on his motorcycle. The blood was oozing from the wounds of the deceased and blood stains spread on their clothes, but their blood stained clothes were not seized by the police party. In paragraph 9 of his cross-examination he denied the name of jeep owner from whom they hired the jeep at Chapara nor he knows the number of the said jeep. He paid the hire charges of the jeep, but no receipt was taken from him. From Chapara to Bagli they came in jeep along with deceased Balwansingh @ Balwantsingh, and PW1 from Bagli when they came to Indore. At that time 2-4 persons were in the jeep but today he does not remember their names. This witness in paragraph 10 of his statement has deposed that the name of his one brother is Surendra. He knows Narayansingh Sarpanch, Thakur Mansingh, Kantilal and Manoharsingh, son of Harnathsingh Senther, but they were not accompanying with them in the jeep, nor they were at M.Y .Hospital, Indore. This witness in paragraph 11 of his statement has deposed that at Indore the deceased was first taken to Suyash Hospital where he was examined by the doctor and at Suyash Hospital he was informed by the doctor that Balwansingh @ Balwantsingh was dead and thereafter, he had taken the deceased to M.Y. Hospital, Indore. PW1 was present along with him. He also stated that clinical examination of Balwansingh @ Balwantsingh was done in the M.Y. Hospital, Indore at 04.00 PM in the after noon. In respect of distance between Bagli and Indore he has deposed that the distance is approximately 60 Kms. He also admits that the road was not good and in bad shape and from Bagli to Indore it took around two hours. At Bagli Government hospital they spent around 15 minutes. In paragraph 14 he also ---12--- admits that Bagli police persons were present at M.Y. Hospital, Indore and they enquired at M.Y. Hospital Indore but no papers were prepared nor any documentation was made by the Bagli police at M.Y. Hospital, Indore. He also admits that postmortem was conducted at M.Y. Hospital, Indroe and they return to their village on 27.1.2002 at 6.00 PM in the evening. In paragraph 18 he has deposed that at the time of incident he was at home and from home he reached “Neem Chowk” of his village and at “Neem Chowk” he heard the noise and, thereafter, he reached at the spot. He also admits that there is omission in his police statement (Ex-D.2) that Manohardas Bairagi (PW1) was not present at the spot. Thereafter his father came at the place of occurrence There is also omission in the police statement that he and PW1 had taken the deceased to Chapara village on the motorcycle. There is also omission in the police statement that from Chapara to Bagli they had gone in the jeep. In paragraph 18 this witness has deposed that from Chapara to Bagli and Bagli to Indore the deceased was taken in a jeep. 16. PW9 M.L. Mohre, Investigating Officer in paragraph 39 of his cross-examination has deposed that for the first time he received the information of death of Balwansingh @ Balwantsingh when his dead body was brought to village. The dead body was brought in the evening. He also admits that after registering the FIR and after the knowledge that injured was taken to Indore no police personnel from Bagli Police Station, nor any Officer of Bagli Police Station had gone to Indore Hospital. He also admits that inquest was prepared by Police Station Sayogitaganj,Indore vide Ex-P/31. He further admits that requisition for postmortem was also prepared by Police Station Sayogitaganj, Indore and statements of witnesses too were also recorded by Police Station Sayogitaganj, Indore. He also admits that though he came to know about the death of ---13--- injured Balwansingh @ Balwantsingh but from 27/01/2002 to 31/01/2002 no one had gone to Police Station Sayogitaganj , Indore to collect the murg documents. PW9 in paragraph 47 of his cross-examination has also admitted that at the time of funeral PW2, PW3, Babu and Rajendra were present. In paragraph 48 of his statement he also admits that the place of occurrence is a village passage (Gali) and width of the passage is 5-6 feet and at the one side of the passage houses of Mohan and Rashid are situated whereas on the other side there is fencing of barbed shrubs. He also admits that from the place of occurrence there is no way or passage, from the house of Rashid and Mohan to go to the house of Manohardas (PW1). In paragraph 49 he has deposed that murg documents were included in the case diary but he had not gone through it. After receiving the murg intimation he had no knowledge that at the time of death who were present along with the dead body. He also admits that