The State of Madhya Pradesh vs Sandhya Yadav

N.K. Gupta, J.—Heard on admission.

The State has preferred an application for grant of leave to appeal against the judgment dated 18.11.2011 passed by the First Additional Sessions Judge, Tikamgarh in ST No.100 of 2010 whereby, all the respondents were acquitted of the charges under Sections 148, 302 or 302 read with Section 149 of I.P.C.

The facts of the case in short are that Smt. Sandhya Yadav was wife of the complainant Sandeep Yadav (PW9) and Sandeep had strained family relations and therefore, the respondent Sandhya Yadav was residing with her parents. On 19.5.2009 Sandeep (PW9) had lodged an FIR at Police Station Prathvipur, District Tikamgarh that about 7.00 a.m in the morning that he and his father Jaiprakash went to a temple of Lord Hanuman near village Bhailsha. When they reached the temple the respondents along with two unknown persons came to the spot by a Marshall Jeep having sword, lathi, axe and ballam. The respondents assaulted the deceased Jaiprakash by such weapons. The unknown persons who had guns with them had fired in the air. Pradeep (PW11) had also reached to the spot during the incident. In the FIR, it was also mentioned that the incident was seen by Ram Singh @ Kallu Yadav, Lallu Fuladiya and Omprakash, priest of the temple. Jaiprakash had expired when he was taken to the Police Station. The dead body of the deceased Jaiprakash was sent for post mortem. Dr. B.L. Khare (PW2) performed post mortem on the body of the deceased and found various multiple injuries caused by hard and blunt object on both his arms and legs. So many bones were found fractured in the arms and legs whereas, no vital part of the body was damaged. According to Dr. Khare, the deceased died of syncope caused by so many injuries received by him.

After considering the submissions made by the learned Government Advocate, it appears that the trial Court had disbelieved the testimony of all the three eye witnesses. If testimony of the witness Omprakash (PW5), a priest of the temple, is considered then according to the spot map Ex.P/7, the place of incident was sufficiently away from the temple. Copy of the statement Ex.D/1 given by this witness Omprakash before the Juvenile Justice Board was shown to him in which he has stated that on 24.2.2010 the incident was caused by unknown persons whereas, on 6.9.2010, when he was examined before the trial Court and he named the respondents. Looking to the conduct of this witness before the Juvenile Justice Board, his testimony cannot be accepted that the incident was caused by the respondents.

Similarly Pradeep (PW11) had claimed that he was also an eye witness but, in the cross examination he has accepted that he went to the spot with some delay. When he was 100 meters away from the spot he heard the firing done on air and therefore, he remained stayed 100 meters away. From a distance of 100 meters, he could not see the culprits. When alleged firing was done, the entire incident was already over. Hence, the testimony of Pradeep Yadav (PW11) cannot be considered as an eye witness.

So far as the evidence given by Sandeep Yadav (PW9) is concerned, it is duly supported by the FIR Ex.P/15, which was lodged within 55 minutes of the incident whereas, the Police Station was 20 kms. away from the spot. However, in the cross examination Sandeep Yadav has stated he did not name Ram Singh @ Kallu Yadav or Lallu Fuladiya as witnesses whereas, such portion was mentioned at E to E in the FIR Ex.P/15. If the evidence of the witness Rahish Yadav (DW1) and Ashok Yadav (DW2) is considered then it would be apparent that Lallu Fuladiya gave an affidavit Ex.D/8 that Omi Jharkhadiya had given an information that Jaiprakash Yadav was lying unconscious near the temple then Pradeep, Sandeep, Kallu and Lallu went to the spot and tried to take the deceased Jaiprakash Yadav to Primary Health Centre, Prathvipur but in the way he expired. In FIR Ex.P/15 Lallu and Kallu were the eye witnesses but, they were given up by the prosecution. According to the defence witnesses Sandeep and Pradeep pressurized the witnesses Kallu @ Ram Singh and Lallu to depose against the respondents but, when the witness Lallu was not ready, the complainant party implicated him in a false case and he was in the jail therefore, his affidavit was proved by Ashok Yadav. Similarly Rahish Yadav (DW1) has proved the affidavit Ex.D/5 prepared on behalf of Om Prakash Jharkhardiya (PW5).

Looking to the conduct of Sandeep etc. and affidavit executed by the witness Lallu Fuladiya, possibility cannot be ruled out that the deceased Jaiprakash went to the temple all alone and on receiving an intimation from the priest of the temple Sandeep and Pradeep etc. had gone to the spot after the incident.

The aforesaid doubt is further confirmed with the fact that the complainant Sandeep had alleged that out of the four respondents, three had sharp cutting weapons and one had lathi whereas, no injury of any sharp cutting weapon was found to the deceased Jaiprakash. The witness Sandeep tried to modify his statement before the trial Court that the respondents assaulted the deceased by throwing boulders upon him. If the respondents would have thrown boulders upon the deceased then there was no problem to the witness Sandeep to mention such a fact in the FIR Ex.P/15.

The most important fact which disbelieves the witness Sandeep is that he was the husband of the respondent Sandhya and the entire quarrel was between Sandhya and Sandeep. Therefore, if the respondents would have assaulted the deceased Jaiprakash and caused his death then there was no reason to the respondents to spare the witness Sandeep. If Sandeep was present at the spot then, in place of Jaiprakash the witness Sandeep would have been killed in the incident because he was the main enemy to the respondents. It is strange that Sandeep did not sustain any injury in the incident. When he was with his father then it was not possible that the respondent could not see him. After the incident where the deceased Jaiprakash had his arms and legs broken and he could not be taken to the Police Station without arranging a four wheeler, if Sandeep would have arranged a vehicle after the incident then he would have taken the deceased to the Police Station which was 20 kms. Away. In the way the deceased Jaiprakash had died and therefore, when he was alive the vehicle could not be driven with the speed. Hence it was impossible for the complainant Sandeep to lodge an FIR within 55 minutes of the incident to a Police Station which was 20 kms. away from the spot. Certainly the FIR was lodged ante time.

On the basis of the aforesaid discussion, it would apparent that Sandeep was not at all an eye witness. When he found his father injured and the incident was caused by unknown person, he took an advantage of the situation and had lodged an FIR implicating the respondents. Looking to the circumstances, he was not an eye witness at all.

If testimony of all the eye witnesses is discarded then remaining chain of circumstantial evidence is broken. There is no fact of last seen. The respondent had no knowledge that in the early morning at about 7.00 a.m, the deceased Jaiprakash will go to the temple. No human blood was found on the various weapons seized from the respondents. Hence the chain of circumstantial evidence is not existing.

On the basis of the aforesaid discussion, it would be apparent the the learned Additional Sessions Judge has rightly acquitted the respondents of all the charges. There is no basis to interfere in the findings given by the trial Court. It is not a good case in which leave may be granted. Consequently, leave application filed by the State is hereby dismissed.

Copy of the order be sent to the trial Court along with its record for information.