Bhagwan Singh Nath vs State Of Madhya Pradesh

Vivek Agarwal, J

This Criminal Appeal under Section 374 (2) of the Criminal Procedure Code has been filed by appellant Bhagwan Singh Nath son of Lalnath, resident

of Garhashakti, Police Station Najeerabad, Bhopal being aggrieved by judgment of conviction and sentence dated 15.04.2008 passed by the Additional

Sessions Judge, Ganjbasoda, District Vidisha, in Sessions Case No.05/2007 (State of M.P. through Police Station Ganjbasoda, District Vidisha v.

Jagdish & Others).

Vide impugned judgment, the learned Additional Sessions Judge has convicted and sentenced the appellant under Section 302 of the Indian Penal

Code (for short 'IPC') for life imprisonment with fine of Rs.2,000/-; in default of payment of fine, further rigorous imprisonment of six months.

Similarly, the appellant has also been convicted under Section 307 of IPC and has been sentenced to 10 years' rigorous imprisonment with fine of

Rs.1,000/-; in default of payment of fine, further rigorous imprisonment of three months. Learned Additional Sessions Judge has directed that the

above sentences shall run concurrently.

Other accused persons, namely, Jagdish Nath son of Kailash Nath and Mukesh Nath son of Bheru Nath have been acquitted for want of evidence

against them.

Prosecution story in short is that on 04.04.2006 at about 9-10 PM, Himmat Singh Yadav (PW2) was driving a motor-cycle from Pabai to Basoda.

Dr. Pravesh Vishwas, the deceased, was his pillion rider. When the motor-cycle reached “Mahagaur Puliyaâ€, then 2-3 people approached the

motor-cycle and hit PW2 Himmat Singh with sticks. As a result, the motor-cycle slipped and the pillion rider fell down. Police had taken PW2 Himmat

Singh son of Niranjan Singh Yadav and the pillion rider to the hospital, where the pillion rider doctor Pravesh Vishwas was found to be dead. As per

dehati nalishi (Ex.P/3), it is mentioned that if the assailants are confronted, then he will be able to identify them.

On the basis of such dehati nalishi (Ex.P/3), FIR (Ex.P/17) was lodged on 05.04.2006 at 00.25 hours after receiving intimation about the incident on

04.04.2006 at about 23. 50 hours against three unknown persons. This FIR was lodged by one D.S. Yadav son of Late Rampal Yadav, A.S.I., Police

Station Ganjbasoda. In the FIR (Ex.P/17), it is mentioned that when Himmat Singh was moving on his motor-cycle with Dr. Pravesh Vishwas as a

pillion rider, then close to Mahagaur Puliya, 2-3 people had appeared and had hit him with sticks, as a result motor-cycle slipped and the pillion rider

sustained injuries and died because of such injuries.

It is the case of the prosecution that in his Court statement, PW2 Himmat Singh had categorically deposed that after

motor-cycle had slipped, accused persons had beaten him and the pillion rider with sticks; as a result of such injuries, he had lost consciousness and

when he gained some conscious, then he asked for water from one of the passing-bye tractors and in the meanwhile the Police had arrived and had

taken both of them to the hospital, where he had lodged dehati nalishi (Ex.P/3). It is further mentioned that he had sustained 12-13 injuries on his face,

head, lips, back and shoulder. He further admitted that the Test Identification Parade was carried out at Vidisha Jail in presence of Naib-Tahsildar

Madam and he had identified the appellant by placing hand on his shoulder. Such Test Identification Panchnama is Ex.P/4. In view of such facts, the

charges were framed under Section 302 and in the alternative under Section 302/34 and in the alternative under Sections 307 and 307/34 of IPC

against the three accused persons.

It is an admitted fact that deceased Dr. Pravesh Vishwas was taken to the hospital by Constable Naresh No.460, Police Station Ganjbasoda in dead

condition as is apparent from Ex.P/1 prepared at the instance of Medical Officer Dr. Pradeep Kumar Jain (PW1). It is also an admitted position that

PW2 Himmat Singh was examined by PW1 Dr. Pradeep Kumar Jain and he had carried out his MLC on 04.04.2006 at about 11.05 PM. Fourteen

injuries were found on the body of PW2 Himmat Singh and vide Ex.P/2 MLC report, viz. give details of injuries PW1 Dr. Pradeep Kumar Jain had

opined that injuries may be caused by hard and blunt object and the duration was within 24 hours since the time of examination. Injuries No.2, 3, 4, 5,

6, 7, 9, 10, 11, 12, 13 and 14 were termed to be simple in nature, whereas opinion about nature of injuries no. 1 and 8 was deferred to be given after

conducting of X-ray examination. There is no X-ray report on record.

It is appellant's contention that in the Test Identification Parade, there is a contradiction and in note issued, it is mentioned that all the persons,

amongst whom TIP was carried out, were of the same age and were having similar physical features. This is contrary to the statement given by the

Executive Magistrate Smt. Saroj Singh, Naib Tahsildar (PW12) Similarly, it is submitted that there is a tick-mark in column no.5 sub-column no.3

showing that the appellant was not identified, but later on, there is a note in column no.7. It is submitted that there is no explanation for the tick in sub-

column no.3 of column no.5 below not identified. It is submitted that it appears that the details in column no.7 have been added subsequently.

It is also submitted that in fact none of the components of Sections 299 and 300 of IPC are available so as to convict the appellant under Section

302 of IPC inasmuch as a bare perusal of FIR and dehati nalishi reveals that there is no allegation against the appellant to have hit the deceased on

any part of his body. It is similarly submitted that even conviction under Section 307 of IPC cannot be sustained in view of the fact that there is no

mens rea and no proper identification. It is submitted that the appellant has been wrongly convicted for the mishap which has taken place with

deceased Dr. Pravesh Vishwas, but unfortunately the appellant has been falsely implicated.

Learned counsel for the appellant has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Ramesh Maruti Patil v. State

of Maharashtra as reported in 1995 SCC (Cri) 149, wherein the Hon'ble Supreme Court has dealt with the aspect of use of FIR. It has been held that

if the FIR was silent about the injuries found on the persons of four accused persons and when the version given in the FIR about the sole fatal injury

being caused by Bhanudas Gajanam Patil was deviated from at the trial since all the prosecution witnesses ascribed that fatal injury to Ramesh Maruti

Patil, then it has been held that when there is straight accusation in the FIR then at the trial, eye-witnesses including the first informant are not entitled

to shift the injury.

On the other hand, the learned counsel for the respondents has placed reliance on the judgment of the Hon'ble Supreme Court in the case of State

of Rajasthan v. Kishore as reported in AIR 1996 SC 3035, wherein it has been held that mere irregularities and illegalities committed by the

Investigating Officer will thereby not render the prosecution case untrustworthy.

Similarly, reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Om Prakash alias Raja v. State of Uttaranchal as

reported in (2003) 1 SCC 648 to suggest that some inconsistencies in the FIR or improvement in the version will not throw out the case of the

prosecution. In view of such submissions, it is submitted that the impugned judgment does not call for any interference and needs to be upheld.

It is submitted that PW1 Dr. Pradeep Kumar Jain, who conducted MLC on PW2 Himmat Singh, has categorically mentioned in para 2 that

PW2 Himmat Singh had informed him that when he was hit with a lathi, he had fallen from the motor-cycle and had sustained injuries as are

mentioned in the MLC report. In cross-examination PW1 Dr. Pradeep Kumar Jain has admitted that the injured had not given the details of the person

who had hit him. He also admitted that such injuries could have been sustained if somebody falls from a motor-cycle moving at high speed. In para 4

of the cross-examination, he has admitted that the injured had informed him that he had fallen from the motor-cycle because of assault by a lathi and,

therefore, had sustained injuries.

PW2 Himmat Singh has admitted in his cross-examination that at Vidisha, he had identified three persons, but the prosecution has attached

description of only one person, i.e., the appellant. He has admitted that he had not signed on TIP Memo (Ex.P/4) after reading the same, but had

signed it on the instructions of the concerned Officer. In para

11 of his cross-examination, PW2 Himmat Singh has admitted that he was knowing the deceased only for last one month. He was not knowing his

complete name and, therefore, he had not given the complete name of the deceased to the Police, which is contradictory to the FIR in which the name

of the deceased doctor is clearly mentioned. It is also submitted that in examination-in-chief, PW2 has mentioned in para 3 that one person had come

and had hit him with lathi and that person was wearing a white shirt and was fair in colour and his cheeks were under depression and was having

small mustaches. It is also mentioned that the lathi was hit on his head, and as a result he had fallen. It is submitted that in para 14, he has mentioned

that the person, who had hit him, was not of fair complexion. There is a note below para 15 that the person, who was described as fair, was not fair.

Attention has been invited to the deposition of PW5 Shyamlal, who is Village Chowkidar and also a witness of seizure-memo. He has admitted in

his cross-examination that close to the place of incident, Narayan Yadav, Mangal Singh and Narayan Singh are residing. By placing reliance on such

statement, it is submitted that when the persons are residing close to the place of the incident, then there was no justification in taking a Village

Chowkidar from the Police Station for preparation of seizure-memo. It is also submitted that no evidence of such persons, who are residing in the

neighbourhood of the place of the incident, has been recorded, which makes the prosecution case doubtful.

It is submitted that PW7 Dr. P. K. Sthapak, who had conducted post-mortem on the body of deceased Dr. Pravesh Vishwas, has clearly opined

that such injuries, as were sustained by the deceased, could have been contacted if somebody falls from the motor-cycle from the side of the head.

It is submitted that PW10 Rakesh Sharma, who had recorded dehati nalishi (Ex.P/3), has admitted in his cross-examination that PW2 Himmat

Singh in his statement had not given the name of the aggressor. Similarly, witnesses Rakesh and Surjan had also not given the names of the aggressor

and during investigation, no Test Identification Parade was carried out for any accused. In para 10, he has admitted that while recording dehati nalishi

(Ex.P/3), description of the aggressor was not given and, therefore, he had not recorded the same.

It has also come on record that PW11 Daya Shankar Yadav, ASI, has admitted that in dehati nalishi, only 2-3 persons have been mentioned as a

party to the crime, whereas later on, mention of 6-7 persons has been made by witness PW2 Himmat Singh.

PW12 Smt. Saroj Singh, who was posted as Naib Tahsildar and in whose presence TIP had taken place, has deposed that the age of the appellant

is 22 years and she had mixed up people of the same age before TIP, but has admitted that she has no explanation for a right tick mark in sub-column

no.3 of column no.5 of the TIP. She has admitted that she is not in a position to distinguish between the accused persons present in the court, and in

the first column of column no.5, she should have marked a tick-mark instead of marking it separately. She also admitted that physical appearance of

other witnesses present in the Court is not same as deposed by her in her examination-in-chief.

In view of such facts, it is submitted that ingredients of murder are not available and there is no evidence of the doctor that the death of deceased

Pravesh Vishwas was homicidal in nature. In absence of death being termed as 'homicidal', the appellant cannot be convicted under Section 302 of

IPC. It is also submitted that the improvisation made by PW2 Himmat Singh is not supported by any other corroborative piece of evidence and the

conviction has been secured only on the basis of a presumption that a person falling from a motor-cycle will definitely sustain leg injuries, which was

not found in the present case. It is submitted that neither there was any intention of causing death or of causing such bodily injury, which would have

in all likelihood caused death or injury found on the body of PW2 Himmat Singh. In fact, the injuries sustained by the deceased were sustained

because of fall from the motor-cycle and there is no evidence that they were caused by the accused, thus, it is not a case which will come under

Section 302 of IPC.

As far as dehati nalishi is concerned, there is mention of hitting PW2 Himmat Singh with lathi. There is no mention of pillion rider, the deceased,

being hit by lathi. There is a mention of loss of balance, and as a result, the motor-cycle skidded causing injury to the pillion rider. It is also true that

TIP has many loopholes. PW2 Himmat Singh says that he had identified three persons in the TIP whereas only TIP of the appellant has been

produced. There is no mention of conduct of TIP in regard to others. There is admission of PW12 Smt. Saroj Singh, Naib Tahsildar that the persons,

who were mixed with the accused, were not of the same age. There is no explanation for leaving first two columns of column no.5 'blank'. There is no

explanation for the tick-mark in sub-column no.3 of column no.5, which gives the result of TIP in negative.

In view of such facts, the law in India in regard to a case under Section 302 of IPC is to be appreciated. The law is that the prosecution has to

establish its case beyond reasonable doubt. The falsity of the defence is not material as has been held in the case of Tika & Others v. State of UP as

reported in AIR 1974 SC 155. The cardinal principle is that in a criminal case, an accused is presumed to be innocent unless that presumption is

rebutted by the prosecution by production of evidence which may show him to be guilty of the offence with which he is charged. The burden of

proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the Courts cannot record a finding of guilt of the

accused. In the present case, the Criminal Court has entered into the realm of probability that a person falling from motor-cycle will necessarily

sustain injuries in the legs and since there were no injuries in the legs of deceased Dr. Pravesh Vishwas, therefore, the trial Court held the accused to

be guilty of committing offence under Section 302 of IPC.

The fact of the matter is that as per the prosecution story as developed by PW2 Himmat Singh, the deceased was hit with lathi after he had fallen

down from the motor-cycle. When the deceased had fallen down from the moving motor-cycle, then definitely certain injuries must have been caused

because of such fall. It has not been attributed as to which of the accused had hit the deceased on his head. In absence of clear description as to

which of the accused had hit the deceased on vital part of the body causing his death, conviction under Section 302 of IPC cannot be sustained. In

fact, the accused has rebutted the plea of PW2 Himmat Singh of being hit by lathi by suggesting circumstances leading to incident and also the

condition of PW2 Himmat Singh to be in the state of intoxication. Such doubt, which has been planted and there is an admission that the neighbourer

of PW2 Himmat Singh is a boot lager coupled with the fact that though there were persons residing close to the place of the incident, none of them

were examined or were called, weakens the case of the prosecution.

In the present case, the incident had taken place on 4. 04.2006, TIP was conducted on 04.10.2006 after arrest of the accused Bhagwan Singh

Nath on 15.07.2006 vide Ex.P/9. There is no explanation for delay in conduct of TIP. There are serious deviations from the earlier version of PW2

Himmat Singh of he being hit by lathi causing in slip of motor-cycle and later on improvisation that when they had fallen, then the other persons had hit

him and the deceased with lathis without attributing any motive for such intervention.

Though, it is true that the FIR is not an encyclopedia and minute details cannot be given in the FIR as has been pointed out by the learned counsel

for the State by referring to the law laid down in the case of Om Prakash alias Raja (supra) and State of Rajasthan v. Kishore (supra), but the fact is

that original allegation is in regard to hitting PW2 Himmat Singh with lathi. Thereafter, the stand taken in dehati nalishi as well as FIR is that the

motor-cycle slipped and PW2 Himmat Singh had fallen down so also the deceased-pillion rider.

In view of such facts, the element of Section 300 of IPC are not fulfilled so as to punish the appellant. Even the charge under Section 307 of IPC,

which was attempt to murder, is not sustainable. There is no intention attributed to the appellant that he had hit with lathi to cause death. In fact, the

prosecution has failed to prove mens rea, intention and knowledge. In the case of Pashora Singh & another v. State of Punjab as reported in AIR

1993 SC 1256, the Hon'ble Supreme Court has held that the accused persons having no intention to cause death caused such injury which was not

sufficient in the ordinary course of nature to cause death and it was not established as to which of the accused had inflicted injury on the head of the

deceased, which proved fatal, it was held that the accused could only be convicted under Section 326 of IPC and not for attempt to murder.

Conviction of the accused under Section 307 and 34 of IPC was set aside. Even if the prosecution story is accepted in totality, then the fact remains

that when two of the accused charged under Section 302 read with Section 34 of IPC have been acquitted by the trial Court and exact nature of injury

caused by each accused is not established, then the remaining accused should at the most be convicted under Section 325 of IPC and not under

Section 302 of IPC simplicitor. This has been held by the Hon'ble Supreme Court in the case of Baul & another v. State of UP as reported in AIR

1968 SC 728.

Thus, this is a fit case where the sentence of the appellant should be converted from one under Sections 302 and 307 of IPC into one under Section

325 of IPC. Since the appellant is in custody from the date of the judgment, i.e., 15.04.2008, and has suffered 10 years of incarceration, though the

maximum punishment under Section 325 of IPC is 07 years, the conviction and sentence of the appellant are set aside and the appellant is directed to

be released forthwith.

To the above extent, the appeal is allowed.