Ajay Khare vs State of M.P.

T.K. Kaushal, J.—This judgment shall govern disposal of both appeals, since these have been preferred against common judgment dated 15.3.2002 passed by III Additional Sessions Judge, Chhatarpur in S.T. No. 205/2000 convicting appellant No. 2 u/s 302 IPC and remaining appellants u/s 302/ 34 IPC for committing murder of Sanjay Bhatt (since deceased) sentencing rigorous imprisonment for life. Facts of the case, in short, are that on 31.5.2000, mother of appellant No. 2 Jagdamba Mishra (acquitted co-accused) alongwith labourers went at a piece of land to undertake some construction work which was objected by Shrikant Bhatt (since deceased), Shashank Bhatt (PW/4) and his father of the deceased Vasudeo Bhatt (PW/5). They asked her to stop the work. Parties on the spot agreed to show their respective title papers to each other in the evening. Thereafter, at about 3:30 p.m. while deceased was sitting with his uncle Ramesh, appellants reached there. Appellant Vijay fired a gunshot in stomach of deceased and all appellants fled away from the place. Shashank (PW/4) witnessed the incident from his roof and rushed to the spot. PW/4 took the deceased to hospital. Deceased narrated the incident to police at the hospital whereupon Dehati Nalisi Ex. P/11 was recorded. On the basis of it vide FIR Ex. P/12, a case u/s 307/ 34 against the appellants at Crime No. 163/2000 at Kotwali, Chhatarpur was registered. Injuries of the deceased were examined by Dr. R.S. Tripathi (PW/13) who prepared MLC report Ex. P/23. B.R. Pandey, Tehsildar (PW/14) reached the hospital and recorded dying declaration of the deceased of the deceased Ex. P/25. Later on, during treatment, deceased died in the hospital. Dr. Tripathi (PW/13) performed postmortem of the deceased and prepared postmortem report Ex. P/24 and found that cause of death to be shock due to excessive internal hemorrhage on account of gunshot injuries sustained in the abdomen.

During investigation, police prepared naksa mouka of the incident Ex. P/8. On 1.6.2000, mother of appellant No. 2 Jagdamba Mishra was arrested, on 10.6.2000 appellants Vijay and Narendra were arrested. On 4.7.2000 appellant Ajay was arrested, and at his instance firearm katta was recovered. Bullets were found in the stomach of the deceased and katta was recovered from the appellant and sent to FSL Sagar for examination.

After completing the investigation, Police Chhatarpur submitted a charge-sheet against appellants. Trial court framed charges u/s 302 IPC and Section 25/ 27 of the Arms Act against appellant Vijay and u/s 302/ 34 IPC against appellant No. 1 and 3. Appellants abjured guilt and pleaded innocence.

To substantiate the case of the prosecution, statements of Rajendra Prasad, Patwari (PW/1), Kishor Kumar Nayak, (PW/2), Dr. R.P. Gupta (PW/3), Shashank Bhatt, brother of the deceased (PW/4), Vasudeo Bhatt, father of the deceased (PW/5), Brajpati Yadav, Constable (PW/6), Mijajilal Dubey, Head Constable (PW/7), Pooranlal Head Constable (PW/8), Awadh Kishor Rawat (PW/9), Maqbool Soudagar (PW/10), Jitendra Kumar Dubey (PW/11), Ramesh Kumar Updhyaya, ASI (PW/12), Dr. R.S. Tripathi (PW/ 13), B.P. Pandey, Tehsildar (PW/14) and Vinod Kumar Dwivedi, ASI (PW/ 15) were recorded. After appreciating the aforesaid evidence, trial court acquitted accused Smt. Jagdamba Mishra, however convicted and sentenced the appellants as above.

Challenging the impugned judgment these appeals have been preferred by the appellants on the grounds that appreciation of evidence is not proper. Shashank Bhatt (PW/4) infact did not witness the incident and to score the enmity with the appellants he turned into an eye-witness on false pretext. Dying declarations are contradictory and unreliable. Conviction has been based on discrepant prosecution evidence, suffering with contradictions and omissions. Conviction is bad in law. On the other hand, learned Panel Lawyer has supported the findings of trial court.

Dr. R.S. Tripathi (PW-13) examined the deceased and found a punctured wound in his abdomen on hypochondrium region having 2" diametre with inverted margins. He also found multiple puncture wounds spreaded in 7.5 cm area. All having inverted margins. Patient was referred for admission in the hospital and was immediately sent to operation theater. He prepared MLC report Ex. P-23. Dr. R.P. Gupta (PW-3) took X ray of abdomen and chest of the deceased. Dr. R.S. Tripathi (PW-13) on the next day i.e. on 01/06/2000 conducted postmortem of the deceased and found following injuries on his person:-

One stitched wound 18 cm long on the abdomen of the deceased.

Stitched wound on hypochondrium region having oval shape, wound in 11/2 cm area with dark circle surrounding the wound.

There had been corresponding injuries on the liver and on intestine and on membrane of the abdomen.

Found 53 metallic pallets from the body of the deceased.

In view of the evidence of Dr. R.S. Tripathi (PW-13), Dr. R.R. Gupta (PW-3), MLC report Ex. P-23 and Postmortem Report Ex. P-26, it remains no longer disputed that death of deceased was caused due to gun shot injuries and was of homicidal nature.

In so far as evidence of dying declarations is concerned Ramesh Kumar Upadhyaya, ASI (PW-12) stated that on receiving the telephonic information at police station, he immediately rushed to hospital, where, on the basis of version of deceased, Dehati Nalishi Ex. P-11 was recorded by him. He prepared MLC form on the spot and requested doctor to examine injuries of the deceased. He found deceased in outdoor patient room as till then he was not admitted as indoor patient. At that time deceased disclosed to him the name of Vijju Mishra and Babele. He did not give full and formal names of both the appellants like Vijay Mishra and Narendra Babele. At that time deceased did not disclose the name of appellant No. 1 Ajay Khare.

Dr. R.S. Tripathi (PW-13) stated that about 4.00 pm he saw deceased in the hospital and found him to be in fit condition to speak. He examined his injuries and referred him to surgical specialist and for X-ray and thereafter patient was admitted in the hospital and was sent to Operation Theater.

B.P. Pandey (PW-14) stated that after getting the fitness of the patient certified by doctor, he recorded dying declaration Ex. P-25 of the deceased. He found patient lying on the support system on drips and oxygen. Prior to the recording of the dying declaration he asked all persons to go out from the room and in presence of doctor he recorded dying declaration. Deceased told the names of the appellant Vijju and Babele and further gave a clue about name of the father of the Vijju also.

Two dying decelerations viz. Ex. P-11, Dehati Nalishi recorded by Vinod Kumar Diwedi (PW-15) at about 4.12 pm, and Ex. P-25 recorded by B.P. Pandey, Tehsildar (PW-14) between 3.40 to 4.05 pm reveal that at the time of making dying declarations deceased was in fit condition and statements were recorded by independent public servants accordingly.

It is submitted by learned counsel for the appellants that in both the dying declarations there is mention of presence of unknown third person and no mention of the name of the appellant Ajay Khare. It is further submitted by learned counsel for the appellants that in respect of appellant Babele his first name has not been referred in any of the dying declaration and both dying declarations are contradictory to each other in respect of his overt act. In Ex. P-25 dying declaration recorded by Tehsildar, appellant Babele was also stated to have fired gun whereas in dying declaration recorded by police inspector Ex. P/11, act of fire was attributed to the appellant Vijju @ Vijay only. In both the dying declarations full identity of appellant Babele is missing.

So far as evidence of eye-witness is concerned, prosecution cited two witnesses who saw the incident from roof but Kuldeep Agrawal was not examined in the trial court. Sole testimony of brother of deceased Shashank Bhatt (PW/4) has been challenged by the defence on the grounds that at the time of incident he was sitting at his shop and on receiving telephonic information of the incident he reached at the spot and took deceased to hospital where he remained there till police prepared naksha panchayatnama of lash of deceased. It is submitted by learned counsel for the appellants that PW/4 reached at the spot at 3.40 pm while Ex. P-11 Dehati Nalishi was recorded and remained at the spot till 6.00 pm when naksha panchayatnama of lash of the deceased Ex. P-7 was prepared. The fact that during this period of about 3 hours, he did not disclose the names of appellants to police or to anybody else is indicative of the fact of lack of his knowledge about the assailants. On the other hand, learned Government Advocate submitted that police statement of PW/4 was recorded on 31.5.2000 only, so long condition of the deceased brother remained critical, priority of PW/4 was to protect life of his brother. Police officials and doctors were already taking care of the treatment of deceased and they also ensured recording of dying declarations. At the time of preparation of naksha panchanama of dead body, it is not expected to give names of assailants. In such situation, police statement of PW/4 (Ex. D/1) is his earliest version without undue delay.

PW/4 was subjected to a very lengthy cross-examination by the defence. In view of the fact that he is sole eye-witness of the incident and is brother of the deceased, his testimony has to be scrutinised with great care and caution. In our opinion, his testimony can safely be relied upon if it stands corroborated by some other reliable evidence. In para 72, para 76 and para 77 of his statement, PW/4 stated that he was busy in arrangement of medicines etc. in the hospital. Deceased was taken to the operation theater thereafter police remained busy in panchnama proceedings etc., therefore he could not give description of assailants to police or to anybody. On way to hospital also deceased did not say anything about the assailants to him. Deceased was complaining about pain only. In para 92 of his statement, he clearly denied the suggestion that he was sitting at the shop and on receiving telephonic information he reached at the spot.

PW/4 stated that appellant Ajay Khare and appellant Babele each caught one hand of the deceased and appellant Vijju @ Vijay caused gunshot injury to the deceased. Name of appellant Babele has been introduced in police statement as Punju'' that too by subsequent addition. In para 79 of the statement, PW/4 has stated that Babele is the surname and there are many ''Babele'' in the town. He did not know the name of father of appellant Narendra Babele.

Testimony of dying declarations and eye-witnesses has been questioned on the point of identity of the appellants also. It is submitted by learned counsel for appellants that in Ex. P/11 Dehati Nalishi (dying declaration), name of one appellant has been mentioned as Vijju Mishra but name of his father is clearly mentioned as Chandra Shekhar. Name of another appellant is mentioned as Babele whose father was known as ''Bhaiya'', In dying declaration Ex. P/25, names of assailants have been mentioned as Babele and Vijju. Another clue regarding Babele has been given showing his residence near Bihari Mandir. On careful perusal of both the dying declarations, it is apparent that there is no mention of name of appellant Ajay Khare. There is no mention of first name of appellant Babele also, his surname only is mentioned. There is a discrepancy in dying declaration regarding overt act of the appellant Babele also. In Ex. P/25, it is stated that he also fired gunshot alongwith the appellant Vijju. In Ex. P/11 nothing has been mentioned of this kind. In police statement of PW/4 (Ex. D/1), name of Babele has been subsequently introduced as ''Punju'' and finally his name has been mentioned as Narendra @ Punju Babele. In respect of involvement of appellant Vijju @ Vijay, both dying declarations and eye-witness account are clear, intact and are corroborated. There is a clear mention of his father''s name and his place of residence also.

Appellant Ajay Khare has been arrested after about five weeks of the incident i.e. on 4.7.2000. At his instance, weapon of the offence katta was recovered.

As against appellant Vijju @ Vijay, sufficient evidence is available regarding his motive. Shashank Bhatt (PW/4) and Vasudeo Bhatt, father of deceased (PW/5) both have stated that in the morning mother of appellant Vijju reached at the land and quarrelled regarding possession of the land and agreed to have a sitting in the evening to show respective title papers.

Keeping in view the overall evidence of eye-witness, there appears no doubt regarding participation of appellant Vijju @ Vij ay in the incident, his identity and his overt act is proved beyond doubt. In respect of appellant Vijju @ Vijay, we find no error in the appreciation of evidence done by the trial court.

In respect of appellant Ajay Khare, evidence of eye-witness is not corroborated by evidence of dying declarations. Absence of name of the appellant Ajay Khare in both the dying declarations casts a serious doubt regarding his involvement in the incident. Appellant Ajay Khare has been arrested after five weeks of the incident though weapon of offence has been recovered at his instance but no evidence is available on record to show any link between him and the appellant Vijju @ Vijay who actually fired gunshot. The statement of PW/4 alone in respect of him, in our opinion, is not sufficient.

In respect of appellant Narendra Babele @ Punju, evidence of dying declaration is discrepant. Only his surname is mentioned, even his father''s name has not been mentioned clearly. Only nickname of father ''Bhaiya'' was mentioned. In one of the dying declarations, his place of residence is stated to be near Bihari Mandir. These facts gave only a tentative identity and hazy sketch of a person. In police statement of PW/4 i.e. in Ex. D/1 first name of Babele has been subsequently added as ''Punju'', ultimately Narendra Babele has been made an accused in this case. The fact that Punju and Narendra Babele are one and the same person has not come on record by any reliable evidence. In view of the uncertainty in dying declarations and eye-witness account regarding identity and involvement of appellant Narendra Babele, we do not find it safe to convict him on such evidence. Appellants Ajay Khare and Narendra Babele, in our opinion, deserve benefit of doubt.

As discussed above, in our opinion, appeal of appellant Vijju @ Vijay is devoid of substance. His conviction and sentence, therefore, is liable to be and is hereby affirmed.

Conviction and sentence of appellants Ajay Khare and Narendra Babele deserve to be and are hereby set aside. Their appeals are allowed. They stand acquitted of the charge u/s 302/ 34 IPC. They be released from the jail if they are not required in any other case. Appeal No. 519/2002 is allowed. Appeal No. 562/2002 is partly allowed in respect of appellant Narendra Babele @ Punjju. Appeal No. 562/ 2002 is dismissed in respect of appellant Vijju @ Vijay.