Brajesh and Others vs The State of Madhya Pradesh

P.K. Jaiswal, J—In the absence of learned counsel for appellant No. 2 Sagar, we appointed Shri Vikas Sharma, learned counsel to appear and argue the matter on his behalf as Amicus Curiae.

This appeal under Section 374 of the Criminal Procedure Code, 1973 has been filed by the appellants, being aggrieved by the judgment dated 28.01.2004 passed by the 12th Additional Sessions Judge, Indore in Sessions Trial No. 152/2003, whereby appellant No. 1 Brajesh s/o Ramcharan has been convicted under Section 302 of the Indian Penal Code, 1860; appellant No. 2 Sagar s/o Jagannath Thakur has been convicted under Section 302/34 of the Indian Penal Code, 1860 and they have been sentenced to undergo rigorous life imprisonment with fine of Rs. 1,000/-; in default of payment fine, they have been further directed to undergo 6 months rigorous imprisonment.

Appellant No. 1 Brajesh is in jail since 09.04.2003 and till 25.08.2015, he has completed the jail sentence of 12 years 4 months and 16 days.

As per the prosecution story, the allegation against appellant No. 1 Brajesh @ Guddu is that he was armed with knife and committed murder of Tej Singh on 17.02.2003 at 09.30 PM; and against appellant No. 2 Sagar is that he was armed with sword and with common intention to commit the crime, he was along with appellant No. 1 Brajesh, but no clear positive evidence about meeting of minds before occurrence nor any injury/assault has been made by him to the deceased.

As per the prosecution story, on 17.02.2003 at 09.30 PM, complainant Leelabai wife of Tej Singh Devra received information that when her husband had left the house for night duty, on the way, in front of House No. 11 of Ramesh at Govind Nagar, Kharcha, appellant No. 1 Brajesh and appellant No. 2 Sagar, who were armed with knife and sword respectively, inflicted multiple injuries to the deceased, due to which he fell down. When they were causing injuries to the deceased, persons who are residing in nearby area, made noise due to which, they ran away towards Water Tank. The informant Leelabai (PW-1) received this information through her son Pintu, who received the information from his friend Sonu (not produced). As per the information received by Pintu son of the deceased, Tej Singh Devra was lying in front of the house of Yogesh. On the basis of the aforesaid information, Leelabai and Pintu (not produced) reached at the place of occurrence, where Tej Singh Devra was lying. He sustained number of injuries. At the spot, Sundarlal Baba (not produced) and Ramesh Solanki (not produced) narrated her that two young boys, aged 20 - 25 years, armed with knife and sword inflicted multiple injuries to her husband. Kaushal Ritesh, brother of the informant Leelabai took him (Tej Singh Devra) to hospital. Police, after receiving telephonic information, reached at the place of occurrence where Dehati Nalishi Ex.P/1 was lodged by Leelabai. During treatment at M.Y. Hospital, Indore, the deceased died and on the basis of the said information, Crime No. 12/2003 was registered by Police Station, Banganga, Indore.

On the basis of marg intimation, investigation was started. Spot map was prepared. Blood stained earth and simple earth were seized from the place of occurrence. Inquest report Ex.P/6 was prepared. On the basis of the application for postmortem Ex.P/7, postmortem of the deceased Tej Singh Devra was conducted by autopsy surgeon Dr. Ravindra Choudhary (PW-13). As per the postmortem report Ex.P/7-A dated 18.02.2003, the deceased sustained the following injuries:-

"1. Incised wound (I.W.) on left parietal oblique 5 x 0.5 x 0.5 cm, clotts +;

I.W. on left Ear 2.5 x 1 x External pinna cut through & through, clotted +, trans +;

Contusion red 2 x 1.5 cm, red on left cheek;

I.W. Tran. on chin 1.6 x 0.5 cm x 0.2 cm, clotts +;

I.W. Trans. oblique on right side neck 4 x 1 x 0.5 cm, clotts + cutting blood vessels and muscles, red ecchymosis;

Stab wound on chest on right side near mid line oblique 3 x 1 x 8 cm going deep into lung, clotts +;

Stab wound on left side chest 5th I.C. Space trans. 3 x 1.5 x 9 cm going into heart left ventricle through lungs, clotts +;

Stab wound on right side chest trans. on 5th I.C. Space 3 x 1 x 7 cm clotts going deep into right lung;

Stab wound on right sub costal region trans. oblique 6.8 x 1 x 6 cm going deep into right lobe liver, clotts +;

Incised wound right sub hepatic region 2 x 0.8 x 4 cm trans. going into liver, clotts +;

Two stab wounds on right lumber region trans. 2 x 1 x 7.4 cm, clotts going deep into kidney right, clotts +;

Stab wound on left side back sub-scapular region trans. 3 x 1.5 x 10 cm going deep into lung, clotts +;

I.W. on left upper limp Arm lateral 2 x 0.5 x 0.3 cm;

I.W. 1.5 x 0.5 x 0.3 cm. Trans. oblique on elbow left anterior;

I.W. On posterior part of left Arm 2 x 0.5 x 0.2 cm, clotts +;

Two I.W. on thigh anterior near knee measuring 2 x 0.5 x 0.4 cm, clotts +."

The deceased Tej Singh Devra died of shock and haemorrage due to stab injuries by hard, sharp and pointed weapons. As per the statement of Dr. Ravindra Choudhary (PW-13), the death of Tej Singh Devra was homicidal in nature. After investigation, charge sheet was filed against the appellants. Charges were framed against the appellants. They denied their guilt and pleaded for trial.

Sonu, Pintu - son of the deceased & Leelabai (PW-1), Sundarlal and Ramesh were not produced before the trial Court. Santosh @ Lallu (PW-2) and Madanlal (PW-3) did not support the case of the prosecution. Lady Tipu Bai (PW-5), who heard the voice of the deceased, did not support the case of the prosecution, and therefore, she has been declared hostile. Learned trial Court, relying on the statement of Rameshwar (PW-6) and Investigating Officer - Hukum Singh Yadav (PW-12), convicted the appellants by the impugned judgment dated 28.10.2004.

Learned counsel for the appellants has submitted that the conviction of the appellants is based only on the basis of sole eye witness Rameshwar (PW-6). He has drawn our attention to Ex.D/1, police statement of Rameshwar (PW-6) and submitted that the prosecution has cited this witness as an eye witness, but there is a delay of 3 to 3 1/2 months in recording his police statement. The date of incident is 17.02.2003. Appellant No. 1 Brajesh was arrested on 09.04.2003. The statement of two more eye witnesses, who have been declared hostile [Santosh @ Lallu (PW-2) and Madanlal (PW-3)], was recorded on 28.05.2003 and the statement Rameshwar (PW-6) was also recorded on 28.05.2003. The delay has not been explained properly. In the absence of sufficient explanation about the delay, which is fatal to the prosecution, learned counsel for the appellants prayed for acquittal of the appellants.

In respect of appellant No. 2 Sagar, it is submitted that ordinarily, every man is responsible only for a criminal act done by him; no man can be held responsible for an independent act committed by another person. Therefore, if criminal act is the result of common intention, then appellant No. 2 Sagar, who committed shared criminal act, then common intention would make him liable for offence committed irrespective of which his act is in perpetration. He submitted that if we scrutinize the statement of Rameshwar (PW-6) very carefully, then there is no material that appellant No. 2 Sagar had any common intention to commit the offence of which he could be convicted under Section 302/34 of the Indian Penal Code, 1860 and submitted that solitary statement of eye witness is not reliable and prays for acquittal of appellant No. 2 Sagar.

Per contra, Shri Deepak Rawal, learned Deputy Advocate General has drawn our attention to the findings recorded by the learned trial Court and submitted that there is clinching evidence against the appellants and the learned trial Court, after appreciating the statement of Rameshwar (PW-6) and Hukum Singh Yadav (PW-12), rightly convicted the appellants and prays for dismissal of the criminal appeal.

The principle issue before us is whether the testimony of Rameshwar (PW-6) can be accepted for holding the conviction of appellant No. 1 Brajesh and whether appellant No. 2 Sagar can be convicted of murder even though with the aid of Section 34 of the Indian Penal Code, 1860 even though there is no material evidence nor Rameshwar (PW-6) has made any allegation against him.

As per the seizure memo Ex.P/15, knife (Article E) has been seized from the possession of appellant No. 1 Brajesh and seizure memo Ex.P/16, sword (Article D) has been seized from the possession of appellant No. 2 Sagar. Ex.P/21-II is the Forensic Science Laboratory report dated 17.11.2003. As per the FSL report, no human blood was found on Article E and report is inconsequential, whereas as per the same FSL report, human blood was found on Article D, but the same is inconclusive.

As per the spot map, there are variations in respect of place of occurrence. In Dehati Nalishi Ex.P/1, place of occurrence is shown as in front of House No. 11 of Ramesh, Govind Nagar, Kharcha Aam Rasta, Indore. As per the spot map Ex.P/18, the place of occurrence is in front of house of Ramesh Solanki. As per daily diary Ex.P/4, the place of occurrence is near the house of Pintu Thakur. As per Ex.D/1, police statement of Rameshwar (PW-6), place of occurrence is near Sundar Nagar Square. Rameshwar (PW-6) in paragraph No. 2 of his court statement, has deposed that on 17.02.2003 at about 09.30 PM to 09.45 PM, when after closing his shop, situated at Prince Nagar and was going towards his house, in Kharcha near water tank he saw that appellant No. 1 Brajesh was inflicting knife injuries to Tej Singh whereas appellant No. 2 Sagar was standing with sword. As per his statement, no overt act by appellant No. 2 Sagar nor it has been established that the act was done in furtherance of the common intention of both the accused. On hearing the cry of Tej Singh, number of women came from there house and on seeing them, both the accused runaway towards the side of water tank. On the next day, he from the newspaper came to know about the death of deceased Tej Singh. After 2 - 3 months, when both the accused persons were arrested and thereafter, he gave information of the crime and recorded his police statement. Regarding delay in giving information to the Police, he submitted that due to fear of Brajesh, he could not intimate the police and when the accused persons were arrested, he narrated the whole incident to the police and recorded his 161 statement on 28.05.2003. Paragraphs No. 2 and 4 of the statement of Rameshwar (PW-6) are relevant, which reads, as under:-

Rameshwar (PW-6) in paragraph No. 7 of his cross-examination very categorically admitted that there is delay of 3 - 3 1/2 months in recording his police statement. In his evidence, he has further stated that at his instance he had gone to the police station for recording police statement. In paragraph No. 8, his omission has been recorded. He in paragraph No. 7 very categorically stated that he had witnessed the incident from 5 - 7 feet. In paragraph No. 11, he also admits that he is not having any enmity with appellant No. 1 Brajesh. Relying on the statement of Rameshwar (PW-6), learned trial court held that there was sufficient evidence that appellant No. 1 Brajesh assaulted Tej Singh Devra with knife and had caused severe injuries to him and also held that the prosecution has successfully proved beyond reasonable doubt that appellant No. 1 Brajesh and appellant No. 2 Sagar had murdered Tej Singh Devra. Accordingly, they are guilty for the offence of murder and sentenced to undergo rigorous life imprisonment. As per Dehati Nalish Ex.P/1, Sundarlal Babu and Ramesh Solanki were present when appellant No. 1 Brajesh was inflicting injuries to the deceased. This fact has been narrated by Sonu to Pintu (son of the deceased), but all the four witnesses have not been examined before the trial Court.

The investigations into the crime do leave much to be desired, as pointed out by the learned counsel for appellant No. 1 Brajesh. The conduct of Rameshwar (PW-6) was quite unnatural. Though he witnessed the attack on Tej Singh Devra, but did not bother to inform the police or family members of the deceased or anybody else and simply went home. This witness further deposed that he came to know about the death of Tej Singh Devra only on the next morning through daily newspaper.

We also find it quite strange that the investigating officer Hukum Singh Yadav (PW-12) examined Rameshwar (PW-6) only on 28.05.2003 i.e. after a gap of more than three months and a half of the incident. One charitable explanation for this delay is that appellant No. 1 Brajesh was a GUNDA of local area and threat. He could not narrate the incident to the police and when he was arrested then only he narrated the incident and recorded his police statement. As per record, appellant No. 1 Brajesh was arrested on 09.04.2003 and after a more than one month and nineteen days, this witness recorded his statement vide Ex.D/1.

Learned counsel for the appellants has relied upon the decision of the Apex Court in the case of Ganesh Bhavan Patel and Another Vs. State of Maharashtra, AIR 1979 SC 135 : (1979) CriLJ 51 : (1978) 4 SCC 371 : (1979) SCC(Cri) 1 : (1979) 2 SCR 94 to contend that delayed examination of Rameshwar (PW-6) throws some doubt on his presence at the place of occurrence. In that case, there was a delay of a few hours by the investigating officer in examining the eye witness and it was observed, as under:-

"Delay of a few hours, simpliciter, in recording the statements of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced."

In the present case, there is a delay of three months and a half.

It is well settled that delayed examination of the witnesses will not vitiate the prosecution case. We agree that delay per se may not be a clinching factor, but when there is a whole range of facts that need to be examined but cannot, then the cumulative effect of all the facts could have an impact on the case of the prosecution. If the evidence on record is looked at in perspective, namely, that Rameshwar (PW-6) an eye witness to the incident did not bother to inform anybody in the family of deceased about the death of Tej Singh; that this eye witness, after a period of more than 3 1/2 months after the occurrence, recorded his statement at the police station. Other two eye witnesses, whose statement was recorded on 28.05.2003, did not support the case of the prosecution and they have been declared hostile by the learned trial Court, lead us to some doubt on the presence of Rameshwar (PW-6) at the place of occurrence.

On due consideration of the statement of Rameshwar (PW-6), we are of the view that it would not be appropriate to hold appellant No. 1 Brajesh guilty of an offence of committing murder of deceased Tej Singh Devra. The statement of Rameshwar (PW-6) is not at all reliable.

In respect of appellant No. 2 Sagar, we have carefully scrutinized the statement of Rameshwar (PW-6). There is no material that he had any common intention to commit the offence of which he could be convicted nor there is any material that he shared common intention, which would make him liable for the alleged offence irrespective of which he had in perpetration. The prosecution has failed to prove that appellant No. 2 Sagar had common intention to commit murder of deceased Tej Singh along with appellant No. 1 Brajesh. In the absence thereof, we are of the view that conviction of appellant No. 1 Brajesh s/o Ramcharan and appellant No. 2 Sagar s/o Jagannath Thakur are liable to be set aside.

Accordingly, we set aside the conviction of the appellants for the offence of murder of Tej Singh Devra and allow criminal appeal filed by them. Appellant No. 1 Brajesh is in jail since 09.04.2003. He be released forthwith, if not required in any other case. Appellant No. 2 Sagar is on bail. His bail bonds shall stand discharged.

Copy of the order be sent to the trial Judge.