AI Structured Summary
Not yet generated for this judgment
Judgment
Jail appeal Cr.A. No.56/2010 is being preferred by the appellant -Ganeshram through Jailer under Section 374 of the Code of Criminal Procedure,
1973 against the judgment of conviction and order of sentence dated 17-08-2009 passed by learned Additional Sessions Judge, Shivpuri District
Shivpuri in S.T.No.262/2008 whereby trial was conducted under Sections 148 and 302 of IPC alternatively Section 302/149 of IPC wherein the
appellant -Ganeshram was convicted for the offence under Section 302 of IPC and punished for suffering jail sentence of life imprisonment with fine
of Rs.1,000/-.
2- Precisely stated facts, as per the case of prosecution, for adjudication are that on 30-06-2008 Kalla (since deceased) was having meal in his house,
situate at Village Gagoni, when appellant Ganeshram came and asked deceased Kalla to come with him. On his call, deceased went with the appellant
Ganeshram towards river. On suspicion, brother and father (respectively) of deceased, namely, Virendra (PW-1) and Sibua (PW-2) went behind them
and saw that Munna alias Narendra Singh, Lakhan Singh, Suresh Singh, Surendra Singh and Mukesh Singh were present there and talking to the
deceased Kalla in high tone and were wielding arms. After some altercation, appellant who was armed with axe caused blow of axe over the head of
Kalla due to which he fell down. Thereafter, all the accused persons started beating deceased with their respective weapons and caused death of
Kalla. When Sibua (PW-2) and Virendra (PW-1) went near the deceased Kalla, all the accused persons ran away from the spot leaving Kalla
unconscious. Kalla was immediately hospitalized where during treatment he succumbed to the injuries. Statements were recorded, case was
registered and spot map was prepared. The accused was arrested and axe was seized, meanwhile Kalla succumbed to injuries and died in hospital.
Post mortem was done, clothes of deceased were seized and Panchnama of dead body was made. On chemical examination, human blood was found
over axe and statement of witnesses were taken and after investigation, charge-sheet was filed.
3- After filing of charge-sheet, case was committed to the Court of Session. The appellant/accused abjured his guilt. The trial was conducted. On
behalf of prosecution, 12 witnesses were examined and on behalf of defence one witness was examined. Trial Court after considering the evidence
convicted the appellant as referred above, therefore, this appeal.
4- According to learned counsel for the appellant -Ganeshram, the case in hand is of false implication. According to him, initially Ganeshram along
with Suresh Singh was tried by the trial Court and conviction was recorded against the appellant -Ganeshram whereas the other co-accused Suresh
Singh was acquitted by the trial Court. Since charge-sheet was filed initially against two accused persons, therefore, trial was conducted in respect of
them, whereas four other accused persons namely; Suresh Singh, Mukesh Singh, Munna alias Narendra Singh and Lakhan Singh who were allegedly
involved in the same case, were tried separately because they appeared before the trial Court at later stage. Their trial was conducted by the same
Court but after appreciation of evidence, they all were given the benefit of doubt and acquitted by the trial Court. Two appeals were earlier preferred
against the order of acquittal of accused persons vide M.Cr.C.No.7484/2009 as well as Cr.A. No.640/2010 but the same got dismissed vide order
dated 15-12-2009 and 20/09/2010 by this Court. Therefore, the appeal preferred by the appellant Ganeshram against his conviction seeks parity vis a
vis orders of other co-accused tried by the trial Court with him as well as at later stage.
5- It is submission of learned counsel for the appellant that more or less evidence recorded by the trial Court in respect of those accused persons bear
so much inconsistencies and contradiction that trial Court rightly acquitted them whereas the present appellant at the same set of facts and evidence
got convicted.
6- It is further submitted by learned counsel for the appellant that once on the deposition of same witnesses, other accused got acquitted, then
appellant cannot be convicted on same set of deposition. He relied on the decision of Hon'ble Apex Court in the matter of Prem Singh Vs. State of
Punjab, AIR 1977 SC 673, State of U.P. and Sheo Ram, AIR 1974 SC 2267, Satbir Vs. State of Haryana, AIR 1981 SC 2074, Bagdi Ram Vs. State
of M.P., 2003 AIR SCW 6692. It is submitted that axe of appellant -Ganeshram does not contain blood stains, therefore, it was difficult to decipher
whether blood was of human being or of deceased and by relying upon the judgment of Hon'ble Apex Court in the matter of Kansa Behera Vs. State
of Orissa, AIR 1987 SC 1507 appellant pleads acquittal. It is submission of learned counsel for the appellant that account of injuries deposed by the
different witnesses appeared to be improbable and contradictory. He referred testimony of Rajkumari (PW-3) and R.R. Malviya (PW-12) and
referred contradictions.
7- One important aspect raised by learned counsel for the appellant was question of delayed FIR. According to him, incident was of around 12:30 pm
of 30-06-2008 whereas FIR was registered on the next day i.e. 01-07-2008 around 9:00 am. During that period deceased was not only taken to
hospital but police also visited the hospital and Marg was registered. Dehati Nalish was recorded but the same is not on record and no plausible
explanation given by the prosecution for making FIR at such delayed stage.
8- It is also the submission of learned counsel for the appellant that witnesses did not support the story of prosecution and do not corroborate the
medical evidence gathered on the basis of post mortem report. The dichotomy of deposition between the witnesses/ doctor as well as medical
evidence and expert opinion expressed, substantiates the plea of false implication.
9- Seized articles were sent belatedly for chemical examination specially axe. Weapon was not sealed on spot and meanwhile under whose custody it
lied are some of the questions which were not established by the prosecution beyond reasonable doubt. Therefore, counsel for the appellant pleads
acquittal.
10- Learned counsel for the respondent/State opposed the prayer made by the appellant and submitted that the case of appellant has to be considered
independently. Although other accused persons have been released due to order of acquittal but clinching evidence exists against the appellant,
therefore, he was rightly convicted by the trial Court. Thus, prayed for dismissal of appeal.
11- We have heard the learned counsel for the parties at length and perused the record.
12- The first and foremost question is about nature of death of appellant. Here in the present case, the victim was Kalla who as per contents of FIR
sustained severe blows over his body. Medical report Ex-P/14 reflected that Kalla sustained five injuries, description of which is given below:
pksV dzekad-1&
,d dVk gqvk ?kko ftldk vkdkj 7x1xgMMh
rd dh xgjkbZ rd Fkk] tks fd vkgr ds flj esa ckabZ rjQ
iSjkbZVy Hkkx ij fLFkr FkkA
pksV dzekaad-+2&
,d dVk gqvk ?kko ftldk vkdkj 5x2x2 lsa-eh-Fkk tks fd vkgr ds ckbZa vxzHkqtk ij fLFkr FkkA pksV dzekad-3&
,d dVk gqvk ?kko ftldk vkdkj 4x2x2 lsa-eh-Fkk tks fd vkgr ds ckbZa vxzHkqtk ij fLFkr FkkA pksV dzekad-4&
,d dVk gqvk ?kko ftldk vkdkj 5x2 lsa-eh- x gMMh rd xgjkbZ fy;s gq;s Fkk] tks fd vkgr ds nkfgus iSj ij fLFkr FkkA
pksV dzekad-5&
,d dVk gqvk ?kko ftldk vkdkj 4x2 lsa-eh- x gMMh dh xgjkbZ fy;s FkkA tks fd vkgr ds nkfgus iSj ij fLFkr FkkA
13- Now the question is of alleged involvement of appellant in murder of deceased Kalla. The alleged incident occurred around 12:30 pm on dated 30-
06-2008. Scriber of FIR was Virendra (PW-1) who was brother of deceased Kalla .The alleged incident occurred around 12:30 pm on dated 30-06-
2008. Scriber of FIR was Virendra (PW-1) who was brother of deceased Kalla. As per his version, Ganeshram the present appellant given blow of
axe whereas Munna Raghuvanshi with Farsa, Surendra with Axe, Suresh with Lathi and Mukesh with Lathi caused injuries to Kalla. Eye-witness
account although refers that the deceased Kalla was taken by the appellant -Ganeshram from his house and, the appellant -Ganeshram wielded axe in
his hand. Virendra Singh (PW-1) went behind them and found that the appellant -Ganeshram had given blow of axe over the head of his brother
Kalla. Thereafter, they took their brother in a Jeep of Lal Sahab Gurjar and taken to around 9-10 pm. Thereafter, he went to police station and
registered FIR vide Ex-P/1.
14- In para 12 of his cross examination, he disclosed the presence of many persons in the vicinity (on spot) at the time of incident when murder took
place. He also explained that why instead of registering FIR they took their brother to Kolaras and thereafter to Shivpuri. Nowhere the witnesses
alleged about the efforts made by him and other family members for registration of FIR whereas they had sufficient time after 12:30 pm till 12:30 am
night, the period during which FIR could have been registered. This discrepancy in not making police complaint immediately against the accused
persons smacks doubt, prosecution had to explain the reason for such delay which it could not. Why complainant party did not prefer to make
complaint or register FIR in respect of offence committed wherein  they could have specifically mentioned the name of accused persons and
compliance of Section 157 of Cr.P.C. would have been ensured but by not doing so, prosecution renders its case doubtful. Although this sole incident
cannot be a ground to discard the story of prosecution but certain other instances support the apprehension. As per the story of prosecution, Dehati
Nalish was recorded by the police but the same is not on record, therefore, question of delayed FIR again comes to haunt the prosecution and without
explanation it assumes importance. 1994 Cr.L.J. 1661 (Khuman Singh and others Vs. State of Rajasthan) is worth consideration in this regard. Father
of deceased Sibua (PW-2) deposed in para 11 that they stopped to the office of SDO(P), Kolaras and tayed there for half an hour and communicated
with him but they did not make any report to any police station and thereafter they directly went to Shivpuri. Therefore, it appears that it is a case of
blind murder which is tried to be converted into a case of false implication.
15- Another aspect worth consideration is in respect of contradictions and inconsistencies crept into deposition of different witnesses including eye-
witnesses. The contradiction of Rajkumari (PW-3) and deposition of Virendra Singh (PW-1) with Sibua (PW-2) indicates that witnesses are not in
unison in respect of weapon used by assailants. Virendra Singh (PW-1) and Sibua (PW-2) referred sharp edged weapon i.e. axe and Farsa whereas
Rajkumari (PW-3) who is wife of the deceased Kalla (although hearsay witness) referred use of Lathi also. This contradiction is material contraction.
As per Sibua, Ganeshram given blow of lathi to his son Kalla, whereas Virendra (PW-2) refers the use of axe by Ganeshram. This contradiction is
very important in nature and renders their deposition suspicious. Similarly, trial Court in earlier judgment dated 14-05-2010 did not believe the testimony
of these witnesses as discussed in the said judgment. Here also, contradiction appears between different witnesses. Sibua (PW-2) stated that the
appellant -Ganeshram gave blow of Lathi to his son Kalla and other accused persons have given blow of axe over his son Kalla. Virendra Singh (PW-
1) who is another son of Sibua (PW-2) and brother of deceased Kalla, referred that the appellant -Ganeshram had given below of axe over the head
of his brother Kalla and Suresh Singh and Mukesh Singh wielded Lathi. Rajkumari (PW-3) who was wife of deceased Kalla referred in para 2 about
the appellant -Ganeshram wielding axe whereas Surendra Singh wielding axe and Munna Singh and Lakhan Singh were wielding Farsa but later on
she improved upon her case in para 9 and specified the injuries caused by different co-accused over the body part of deceased. The said improvement
also deserves to be taken note of. The said contradiction appears to be material contraction wherein two witnesses are at variance about use of
weapon by the appellant.
16- Interestingly, medical evidence does not support different versions of eye-witnesses. Post mortem report Ex-P/14 and the deposition of Dr. S.K.
Bansal (PW-11) who conducted autopsy reveal that the deceased sustained five injuries and at the time of conduction of autopsy, all wounds were
stitched apparently because the deceased was given some medical treatment earlier before his death and therefore, for medication purpose wounds
might have been washed by medicine/antibiotic and thereafter might have been stitched for stoppage of blood. In para 3, Dr. S.K. Bansal (PW-11)
opined that all the wounds are stitched wounds, therefore, it is difficult to opine about nature of weapon used for causing such injury. According to
him, the doctor who had done medico legal treatment at the initial stage, could have explained better. In support of his case, prosecution led the
evidence of Dr. Ratnesh Jain (PW-9) who medically examined the victim. He referred all the injuries as 'Incised Wounds' caused by sharp edged
weapons. All the injuries were serious in nature. Therefore, it is clearly established from the medical evidence that the injuries inflicted to the victim
was through sharp edged weapons and therefore, deposition of alleged eye-witnesses got falsified because they referred use of Lathi also and nature
of injuries like abrasion or contusion not existed over the victim to establish any injury caused by hard and blunt object. Therefore, material
contradictions exist between ocular and medical evidence.
17- Another aspect worth consideration in this case is deposition of Dr. Ratnesh Jain (PW-9) who referred in para 2 of his cross examination that
family members of victim brought the victim to hospital around 6 pm in the evening. Time of incident is 12:30 pm afternoon and victim was taken to
hospital at 6 pm. Such delay in bringing victim to hospital has not been explained by the prosecution.
18- Another aspect worth consideration is marg intimation Ex-P/13 recorded by the head constable Ramesh Chandra Sharma (PW-10) at around
11:10 pm. Said marg intimation nowhere discloses description of any accused person. Although marg intimation need not to carry description of
accused always but here it assumes importance for the reason that eye-witnesses allegedly saw the incident, therefore, they could have mentioned this
fact in the marg intimation when head constable Ramesh Chandra Sharma (PW-10) recorded marg intimation. The case of Amar Singh Vs.
Balwinder Singh and Others, 2003 SCC (Cri.) 641 is worth consideration in this regard.
19- When the family members of victim themselves are taking the deceased at 6 pm at Shivpuri and they are not making any complaint from the place
of incident till Shivpuri and even in the marg intimation they do not disclose the names of any accused person in specific terms then the case of
prosecution gets shaken from the root. The said non explanation in respect of delayed FIR with inconsistencies of testimony of witnesses substantiates
the case of defence and gives dent to the case of prosecution.
20- Sibua (PW-2) in para 8 of his cross examination referred presence of 2-3 children (belonging to shepherd community) and from his deposition it
appears that they have witnessed the incident but R.R. Malviya (PW-12) SDO(P), Kolaras/ Investigating Officer of the case categorically mentioned
the fact that in investigation, presence of any child/ children (of shepherd community) was not found on the spot. He also pleaded ignorance about post
mortem report and presence of accused Suresh Singh in the agriculture field, doing cultivation at the time of incident. He also pleaded ignorance about
any report lodged by the victim at hospital. This aspect in fact substantiates the case of defence. 21- One more aspect involved in the case is
deposition of Virendra Singh (PW-1) when he admitted in para 19 about political rivalry between the accused persons and Naresh Singh who took the
victim after incident. Similarly Sibua (PW-2) in para 12 admitted this fact that the appellant Ganeshram was employed as driver to rival party Lakhan
Singh Raghuvanshi whereas the complainant party belongs to Naresh Raghuvanshi who was at loggerheads with other parties. Therefore, the question
of enmity induced implication cannot be ruled out. Enmity is double edged weapon, it goes both ways and false implication cannot be ruled out by the
enmity existed between the parties.
22- Axe of the appellant -Ganeshram seized by the prosecution was not sent for chemical examination to ascertain that any blood stain existed over it
was of human blood or whether blood was of deceased. Therefore, dictum of Hon'ble Apex Court in the case of Kansa Behera (supra) can be
profitably referred here to give benefit of doubt to the appellant. Weapon was not sealed on spot and seized article (axe) was sent belatedly for
chemical examination, therefore, Santa Singh Vs. State of Punjab, AIR 1956 SC 526 for sending the seized article belatedly, applies here. Similarly, in
the case of Mahmood Vs. State of U.P. AIR 1976 SC 69, Mohd. Aman and another Vs. State of Rajasthan, 1997 SC 2960, the Hon'ble Apex Court
explained the scope when weapon was not sealed on spot. During that period under whose custody weapon lied was a question and in such
circumstances, AIR 1978 SC 1511 Modan Singh Vs. State of Rajasthan may be profitably referred to.
23- Besides that, eye-witness account of the witnesses has been discussed and thereafter through detailed scrutiny trial Court acquitted other accused
persons. One accused Suresh Singh of the present Session Trial (alongwith present appellant) got acquitted from the trial Court. The appeal was
preferred against the order of acquittal vide M.Cr.C.No.7484/2009 but the same resulted into dismissal. Similarly, complainant Sibua also preferred
appeal against the order of acquittal of Surendra Singh, Mukesh Singh, Munna @ Narendra Singh and Lakhan, but the same was withdrawn by order
dated 20/09/2017. This fact also furthers the cause of apppellant.
24- Therefore, the appeal preferred by the appellant -Ganeshram succeeds. Trial Court erred in convicting and sentencing appellant for offence under
Section 302 of IPC. He is acquitted from the charge of Section 302 of IPC for committing murder of Kalla S/o Sibua. Appellant -Ganeshram is in jail.
He be released forthwith from jail.
25- Resultantly, the appeal preferred by the appellant -Ganeshram vide Cr.A. No.56/2010 is allowed. Supersession warrant for release of appellant
Ganeshram be issued immediately for his release.
26- Copy of the judgment be sent to the trial Court along with record for information.
27- Ordered accordingly.