Dinesh Kumar Patel And Others vs State Of Madhya Pradesh

Anjuli Palo, J

Criminal Appeal No.2096/2008 has been filed by the accused person Rambahor and Criminal Appeal No.1770/2008 has been filed by other co-

accused persons Dinesh Kumar Patel and others. Both the appeals have been heard together and are being decided by this common judgment.

These appeals have been filed being aggrieved by the judgment dated 29.07.2008 passed by the First Additional Sessions Judge, Satna in Sessions

Trial No.39/2001, whereby appellant Rambahor has been convicted under Section 302 of I.P.C. and under Section 25(1-b)(A) of Arms Act and

sentenced to undergo for life imprisonment and fine amount of Rs.2000/- and R.I. for three years and fine of Rs.1000/-, with default stipulations and

appellants Dinesh Kumar Patel and others have been convicted under Section 302/34 of I.P.C. and sentenced to undergo for life imprisonment and

fine of Rs.1000/- each, with default stipulations.

The prosecution story in brief is that on 27.09.2000 at about 4.50 p.m., Ramji Patel lodged a complaint at Police Station Amarpatan to the effect

that at morning time he along with his father Baijnath (since deceased) came to Amarpatan, then they went to Satna. They returned back at about

3.30 p.m. They got down from the taxi at Satna Chauraha. They saw that from Ramkhilan Patel's shop appellants started following them. Appellants

and the family of the victim had enmity, therefore, complainant Ramji and his father apprehended their ill intentions. Hence, they speedily proceeded

towards Ramnagar Tiraha where their motorcycle was parked. Then appellants caught hold them and Rambahor @ Munna Patel fired a gunshot on

Baijnath father of Ramji, he fell down. Damodar Patel, Maksudhan Tiwari had seen the incident and some other persons also came there. Thereafter,

the appellants fled away from the spot. Baijnath died and Ramji became unconscious. Rajnish Dwivedi, Advocate wrote a report which has been

submitted by Ramji at the Police Station. Police registered crimes under Section 302 and 120-B of I.P.C. against the appellants. After investigation,

charge-sheet was filed against the accused persons in the Court of Judicial Magistrate First Class, Amarpatan.

The case was committed to the trial Court. After recording the evidence, the trial Court came to the conclusion that the appellants are guilty for

committing murder of the deceased. Hence, appellant Rambahor and appellants Dinesh Kumar Patel and others have been convicted and sentenced

as mentioned in paragraph 2 of this judgment.

Findings of the learned trial Court are challenged by the appellants on the grounds that the trial Court has not properly appreciated the prosecution

evidence in right perspective. All the witnesses are interested witnesses. Their testimonies have many contradiction and omissions. No common

intention of the appellants has been established by the prosecution for committing murder of Baijnath except appellant Rambahor. Their shop is near

the place of incident, therefore, their presence on the spot is natural. Nothing has been seized from their possession. The complainant party has enmity

with the appellant Rambahor. There is some election rivalry also between them. Therefore, the appellants are falsely implicated by the complainant

parties. They are entitled to be acquitted after set aside the impugned judgment.

Learned Government Advocate for the State very strenuously submitted that both the appeals are liable to be dismissed.

Heard learned counsel for the parties at length and perused the records.

After considering the arguments of both the sides the point for determination is that :-

'Whether the appellants are rightly convicted by the trial Court for committing offences as per the charges levelled against them ?

After due consideration of entire prosecution evidence in our opinion, the presence of eye witness Bhagwandeen (PW1) and Rambhuwan Patel

(Pw-2) on the spot is found doubtful because both the witnesses are son of the deceased. They were resided at village Chorkhari, Police Station

Amarpatan. Their names were not mentioned in the FIR (Ex.P/19) on dated 27.09.2000, which was based on written report (Ex.P/9) of Ramji Patel.

Ramji Patel also brother of Bhagwandeen (PW1) and Rambhuwan Patel (PW-2) and the son of the deceased. In Dehati Nalishi (Ex.P/9), Ramji Patel

specifically narrated that he along with his father Baijnath (deceased) were came to Amarpatan from their village through motorcycle. Thereafter,

both were went to Satna and returned back together at about 3.30 pm from Satna. Nowhere names of Bhagwandeen (PW-1) and Rambhuwan Patel

(PW-2) were mentioned by Ramji Patel (PW-3) in Dehati Nalishi (Ex.P/9). Hence, their presence on the spot with regard to the incident saw by them

is not seems reliable.

Learned counsel for the appellant placed reliance upon the case of Mahavir Singh vs. State of M.P. (2016) 10 SCC 220, it has held that :-

As to chance witness, it is to be seen that although evidence of a chance witness is acceptable in India, yet the chance witness has to reasonably

explain his presence at that particular point more so when his deposition is being assailed as being tainted. Their evidence can only be relied upon if the

evidence has a ring of truth to it, is cogent, credible and trustworthy.

At the time of the incident, with the deceased father the presence of Ramji Patel is duly established. Ramji Patel (PW3) strongly stated against the

appellant Rambahor that he had enmity with his father due to land dispute between them. Ramji Patel (PW-3) deposed that on 23.09.2000, he heard

appellants- Ram Khilawan, Chhotelal, Dinesh and Ashok threatened them to kill Bajnath for their land dispute, at that time they were armed with lathi

and farsa. On 25.09.2000, he along with his younger brother Rambhuwan (PW-2) and father Baijnath went to Amarpatan Court. He again found all

the appellants were there. They were abusing them and again threatened to kill them. It is important to mention here that aforesaid incident also not

being narrated by him in Dehati Nalishi (Ex.P/9) nor in his statement recorded by the Police under Section 161 of Cr.P.C. Therefore, the testimony of

Ramji about the prior incidents against the appellants is not inspired confidence. Hence, not found reliable.

In the criminal trials, the maxim 'falsus in uno falsus in omnibus'Â (false in one thing, false in everything) would not be applicable. If the witness

found unreliable for some facts, his remaining evidence which found reliable cannot be discarded on that ground. We find at the time of incident

presence of Ramji Patel with his father is natural. He categorically stated about the incident, how they come together from their village at the spot and

incident occurred in his presence. He witnessed that the appellant Rambahor fired from his pistol on his father's face and other appellants were

caught hold him.Â

As per Ramji (PW-3) his father Baijnath died on the spot. It is also important to note that FIR has been lodged by Ramji Patel (PW-3) on the date

of incident. It is not important that FIR was wrote by his Advocate, Shri Rajneesh. It happened that on the direction of the complainant, report can be

written by other person. In present case, Dahti Nalisi (Ex.P/9) and FIR (Ex.P/19) were signed by the complainant Ramji Patel. It cannot be forgotten

that the appellants and the complainant party had old property disputes. So generally, the parties are in contact of their counsel to write an FIR, but

it does not mean that the FIR is baseless or it based on concocted story. Other facts may also be considered to find out whether the facts mentioned

in the FIR have happened or not.

In this regard, we also appreciate the evidence of Investigating Officer, S.D. Singh (PW-11) who stated that on 27.09.2000 (date of incident)

complainant Ramji Patel came to Police Station along with written report (Ex.P/9) which was signed by Ramji Patel, then he registered FIR against

the appellants. He also registered Marg Intimation as Ex.P/10. We do not find any material contradiction except with regard to the presence of the

other eye witnesses Bhagwandeen (PW-1) and Rambhuwan Patel (PW-2).

Dead body of the deceased was sent for postmortem. Dr. B.K. Tiwari (PW-9)Â conducted autopsy of the deceased. He found following injuries

on the deceased:-

(i) A wound on medial part of left jaw to left chick size about 8 cm from upper to lower side of 4.5 cm. Margin of aforesaid wound is irregular

blacking also present there due to that injury hairs of mustache also burn.

(ii) Multi fractures in left side mandible and right side of maxilla bone.

(iii)After deception of aforesaid wound Doctor found soft issues, muscles and some part of tongue was in cutting condition.

(iv)Fracture palate.

(v) Left internal carotid artery was fractured.

Dr. Tiwari found 15 pellets at surrounding of the aforesaid wound. During internal examination, Dr. found both the chambers of heart were empty and

bleeding was present in esophagus.

As per the opinion of Dr. Tiwari (PW-9), aforesaid injuries were caused by fired arm with the close distance. After examining the body, all the

pellets were handover to police in sealed condition. Dr. Tiwari (PW-9) also found blood stains on the clothes of the deceased. Hence, all the clothes

were handed over to police. The marginal skin of wound of the deceased also handed over to police in sealed condition. The deceased died within 12

to 36 hours from his postmortem due to excessive bleeding from the aforesaid wounds and shock.

In cross-examination, Dr. Tiwari explained that all the pellets were spread internally in the different parts of the body. The wound and it's track

was found lower side to upper side. It was shot from the left side of the deceased. Dr. Tiwari (PW-9) further explained that the deceased can be

saved after providing him treatment promptly. We also opined that due to aforesaid gun shot injuries and wound over the internal carotid artery with

excessive bleeding the deceased was died. Injuries are sufficient to cause his death in ordinary course of nature. Injuries are ante-mortem and

homicidal in nature. The medical report (Ex.P/20) along with opinion of Dr. Tiwari (PW-9) also corroborate the testimony of Ramji (PW-3). We do

not find any reason to disbelieve the opinion of Dr. Tiwari (PW-9).

S.D. Singh, Investigating Officer (PW-11) arrested the appellant Rambahor within some hours from the incident on 27.09.2000. The appellant

Rambahor gave information about his fired arm in front of witnesses Bhagwandeen and Indrapal. Appellant Rambahor informed to police the

aforesaid country made fire arm (katta) was thrown by him in the pond. As per his information, police recovered it before the punch witnessesÂ

Bhagwandeen and Indrapal. He also found a cartridge of 12 bore with shell fire cartridge in the aforesaid fire arm, which was seized by him vide

seizure memo Ex.P/2. All the documents were signed by the appellant Rambahor.

Bhagwandeen (PW-1) and Indrapal (PW-7) also corroborate the testimony of the Investigating Officer, S.D. Singh (PW-11). They further stated

that in their presence the aforesaid country made fire arm (katta) was brought out from the pond by the appellant Rambahor himself. Thereafter, it

was seized by police according to seizure memo Ex.P/5. Indrapal (PW-7) also stated that he saw one empty cartridge in the aforesaid country made

fire arm (katta). Thereafter, the aforesaid weapons was sent to FSL for chemical examination as stated by the Investigating Officer.

As per FSL report Ex.P/24 one empty cartridge was found in the aforesaid country made 12 bore fire arm (katta). 15 pellets also examined along

with the peace of skin of the deceased. Thereafter, it was opined that the seized pistol was in working condition. It was also confirmed that pistol was

used for last fire. All the pellets were similar in properties. As per another FSL report Ex.P/25 on pellet Article-'G' and peace of skin Article-'H' blood

stains were found. Similarly, the blood stains were found on the clothes of appellant Rambahor, which was seized by the Investigating Officer, S.D.

Singh (PW-11) vide seizure memo Ex.P/7.

We are not inclined to differ our opinion from the opinion of learned trial Court against the appellant Rambahor.

The appellant Rambahor had enmity with the deceased. They had land dispute. After considering all above evidence, his involvement with the crime is

clearly established. His presence on the spot is duly corroborated by Ramji (PW-3) and independent witness Maksudan Prasad Tiwari (PW-4) also.

He did not corroborate the testimony of Ramji against the appellants. He only stated that he heard the appellants Chhotelal, Ashok and Dinesh were

caught hold Ramji. This hearsay evidence is not admissible. His testimony is not rebutted during his cross-examination against the appellant Rambahor.

Police recorded his statement on 3rd day (29.09.2000) from the incident (27.09.2000). We do not find any reason to disbelieve the testimony of

Maksudan Prasad Tiwari (PW-4). He heard the noise of fire of gun shot. Hence, attracted towards the seen of the occurrence. In para 27, he

explained that after hearing the noise of fire within a minute, he reached on the spot and saw the appellant Rambahor as an assailant. He also

established only the presence of Ramji at there. He denied that Ramji came to the spot after his reaching on the spot. Therefore, it cannot be said that

the conviction of the appellant is based only on the testimony of interested eye witnesses Ramji.

In the case of Jodhan vs. State of M.P. (2015) 11 SCC 52, it has held that :-

“The evidence of an interested witness can be relied upon if it is found to be trustworthy and credible. Needless to say, a testimony, if after careful

scrutiny is found as unreliable and improbable or suspicious it ought to be rejected. That apart, when a witness has a motive or makes false implication,

the Court before relying upon his testimony should seek corroboration in regard to material particulars. There is no rule of evidence, that testimony of

interested witness is to be rejected solely because other independent witnesses, who have been cited by prosecution have turned hostile.â€​

Learned counsel for the appellant further contended that as per FSL report, blood group of the deceased did not confirm on the clothes of the

appellant Rambahor. Hence, the trial Court wrongly relied the involvement of appellant Rambahor with the crime. We are not in agreement to accept

the aforesaid contention. This reason alone is not sufficient to disbelieve the other material evidence on record particularly the evidence of eye

witnesses on record.

In the case of Sunil Clifford Daniel vs. State of Punjab (2012) 11 SCC 205, it has held that :-

“In FSL report for non-matching of blood group, no advantage can be conferred upon accused to enable him to claim any benefit of doubt. Report

of disintegration of blood, etc. cannot be termed as a missing link on basis of which chain of circumstances may be presumed to be broken.â€​

Similarly, in case of State of Rajsthan vs. Teja Ram and others (1999) 3 SCC 507, it has held that :-

“Failure of the Serologist to detect the origin of the blood, due to disintegration of the serum in the meanwhile, does not mean that the blood stuck

on the axe would not have been human blood al all. Sometimes it happens, either because the stain is too insufficient or due to hematological changes

and plasmatic coagulation that a Serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin?

Such a guess work that blood on the other axe would have been animal blood is unrealistic and farfetched in the broad spectrum of this case. The

effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially

conscientious mind entertains with some objectivity no benefit can be claimed by the accused.

It cannot be said that in all cases where there was failure of detecting the origin of the blood the circumstance arising from recovery of the weapon

would stand relegated to disutility.â€​

Learned counsel for the appellant further contended that police did not seize any article from the spot, in support of the testimony of Ramji (PW-

3), who stated that at the time of incident he went to Satna along with the deceased for purchasing tractor excel and other goods.

In case of Yogesh Singh vs. Mahabeer Singh and others (2017) 11 SCC 195, the Supreme Court has held that :-

“Lapses in investigation or defects by itself cannot be a ground for acquittal. Investigation is not the solitary area for judicial scrutiny in a criminal

trial. Conclusion of trial in the case cannot be allowed to depend solely on probity of investigation.

Ramji Patel (PW-3) has clearly explained in paragraph 3 of his statement that when they reached Amarpatan from Satna through rickshaw, they

sent aforesaid excel and other goods to Ramnagar Tiraha where his younger brother Rambhuwan was waiting for it. Hence, we do not find any good

cause to disbelieve the testimony of Ramji (PW-3).

Further that, the appellants submit that police has not complied the Provision of Section 157 of Cr.P.C. So there is a chance to manipulate the

prosecution story against the appellants.

In cross-examination, S.K. Singh (PW-11) admitted that there was no entry in his record about sending the copy of FIR to the concerned

Magistrate nor the copy of concerned rojnamcha, which has been filed in the case. Even then, the compliance of Section 157 of Cr.P.C. has not been

established by the prosecution. But due to this fault, the whole prosecution case cannot be brush aside which is duly established or proved by the

prosecution evidence.

In the case of State of Rajasthan vs. Daud Khan (2016) 2 SCC 607, the Supreme Court has held that :-

“The purpose of the 'forthwith' communication of a copy of the FIR to the Magistrate is to check the possibility of its manipulation.â€​Â

In the case of Yogesh Singh (Supra), the Supreme Court has held that :-

“Although in terms of Section 157 Cr.P.C., the police officer concerned is required to forward a copy of FIR to the Magistrate empowered to take

cognizance of such offence, promptly and without undue delay, it cannot be laid down as a rule of universal application that whenever there is some

delay in sending FIR to the Magistrate, the prosecution version becomes unreliable and the trial stands vitiated. When there is positive evidence to the

fact that FIR was recorded without unreasonable delay and investigation started on the basis of that FIR and there is no other infirmity brought to the

notice of the Court, then in the absence of any prejudice to the accused, it cannot be concluded that the investigation was tainted and the prosecution

story rendered unsupportable.â€​

In the present case, we do not find any possibility to manipulate the prosecution story against the appellant Rambahor.

After considering all the materials evidence available on the record against the appellants, we come to the conclusion that the appellant Rambahor

is rightly identified as an assailant by Ramji (PW-3) and Maksundan Prasad (PW-4). His conviction is rightly based on the appropriate evidence on

record against him.

In our opinion, some contradictions and omissions naturally come in the evidence due to various reasons. Some time witnesses improve their

statements to some extent but on that ground alone testimony of material eye witnesses cannot be disbelieved.

In case of Uttar Pradesh vs. Ram Kumar and others (2017) 14 SCC 614, it has held that :-

“This Court further in the above case has laid down that minor discrepancies in the statement of witnesses of trivial nature cannot be a ground to

reject evidence. In para 32 Brahm Swaroop Case the following has been laid down:

“32. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the

core of the prosecution’s case, may not prompt the court to reject the evidence in its entirety. “Irrelevant details which do not in any way

corrode the credibility of a witness cannot be labelled as omissions or contradictions.†Difference in some minor details, which does not

otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and

discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements,

the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should

not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the

prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are

bound to occur in the statements of witnesses. (See State of U.P. v. M.K.Anthony(1985)1 SCC 505, State of Rajasthan v. Om Prakash (2007) 12

SCC 381), State v. Saravanan (2008) 17 SCC 587 and Prithu v. State of H.P. (2009) 11 SCC 588)†37. After consideration of the entire evidence

on record, we come to the conclusion that the involvement of other appellants Dinesh, Chhotelal and Ashok is doubtful. There is no direct evidence

against them that they caught hold of Ramji (PW-3) during the incident or they actively participated in the crime along with the appellant Rambahor.

Ramji (PW-3) and other witnesses admitted that appellant Chhotelal had some dispute with the deceased because of rivalry since the election. The

deceased was a defeated candidate.

In case of Narendra Singh Vs. State of M.P. (2004) 10 SCC 699 & Ashish Vs. State of M.P. (2002) 7 SCC 317, it has held that:-

Accused is presumed to be innocent till charges against him are proved beyond reasonable doubt. Mere heinous or gruesome nature of the crime is

not enough to punish the accused. Mere suspicion, however, strong it may be cannot take the place of legal proof.

It happened generally when the parties had property dispute, they falsely involve the other persons also with the main culprit because of their

enmity. There is no trustworthy evidence against the said appellants on record for their involvement in the crime with the appellant Rambahor. We

relied in the case of Hardeep Vs. State of Haryana (2007) 7 SCC 11, the Supreme Court has held that:-

On facts, on the whole the prosecution story does not inspire confidence in view of serios discrepancies in evidence and false implication of other

accused, their conviction and sentence must be set aside. 40. Hence, Appellants Dinesh, Chhotelal and Ashok are liable to be acquitted from the

charges under Section 302/34 of I.P.C. levelled against them. Accordingly, Criminal Appeal No.1770/2008 filed by the appellants Dinesh, Chhotelal

and Ashok is hereby allowed. They are acquitted of the aforesaid charges. If the fine amount deposited by them, be refunded to them. Appellants-

Dinesh, Chhotelal and Ashok are on bail. Their bail bonds stand discharged.

We find that the appellant Rambahor has rightly been convicted by the trial Court for committing murder of the deceased. Hence, his Criminal

Appeal No.2096/2008 is hereby dismissed. He is in jail.

Copy of this judgment be sent to the Court below for information and compliance alongwith its record.