Hardas @ Baba vs State Of Madhya Pradesh

​

Ashok Kumar Joshi, J.​

By this appeal filed under Section 374 of the Cr.P.C., appellants have assailed the judgment dated 14.01.2002 passed by the Sixth Additional

Sessions Judge, Gwalior in S.T. No.457/95 whereby each appellant has been convicted and sentenced under Section 302/34 (on two counts) of the

IPC and sentenced on each count Life Imprisonment with fine of Rs.2000/- with default stipulation and each of the appellants has been convicted and

sentenced under Section 450 of the IPC to undergo five years RI with a fine of Rs.1000/- with default stipulation and the trial Court has also directed

that all the main jail sentences of each appellant to run concurrently.​

Undisputedly, complainant Munnibai (PW-3) and her family members and appellants are well acquaint with each other and there was enmity

between the family members of the complainant and the appellants. It would be significant to mention here that real brother of the appellant No.1

Hardas, namely, Ram Prakash was also tried with the appellants in above mentioned case but Ram Prakash was acquitted by the trial Court.

Complainant Munni Bai (PW-3) and her husband Ramjilal were facing trial for murder of real brother of appellant No.1 Hardas and acquitted accused

Ram Prakash.​

The prosecution's story in brief is that in the intervening night of 3/4 July, 1995 at about 1-00 AM, complainant Munnibai (PW-3), her husband

Ramjilal (since deceased), her son Surendra (since deceased) and other family members were sleeping on the terrace of their house situated in village

Barka. On 4.7.1995, SHO of Police Station Pandokhar, Bhanwar Singh Jadon (PW-10) reached to village Barka, where at 8-00 AM complainant

Munnibai lodged Dehati Nalishi (ExP-6) to the effect that they were having enmity with Hardas, Ram Prakash and Ramvilas and she was facing trial

for murder of Kamlesh, brother of appellant No.1. In day time of 4.7.1995, appellant Ramvilas was wandering in village Barka in the whole day and

for taking revenge appellant Ramvilas came to village Barka and stayed at the house of Chottelal. In the above mentioned intervening night, when

complainant was sleeping on roof with her family members, she got awaken after hearing sound of firing by fire-arms, then she saw that appellant

Hardas @ Baba fired on her husband. Ramjilal and Hardas were having guns at that time. Acquitted accused Ram Prakash put country-made pistol

infront of the chest of complainant. Thereafter, appellant Ramvilas fired a shot from hiscountry-made pistol on complainant's son Surendra and

complainant's mother-in-law (saas) Mithilabai (PW-4) received injury from farsa. Thereafter, complainant's elder son Virendra (PW-5) fled away

from the roof of their house after jumping from the roof. Complainant's husband Ramjilal and son Surendra had received fire-arm injuries on their

chest and Mithilabai had received farsa injury over her wrist and thumb. Appellants and Ram Prakash fled away after jumping from the roof.

Complainant's husband had died but her son Surendra at the time of lodging of Dehati Nalishi was seriously injured and unable to speak. In the

available light at night complainant had identified all the assailants. Her sister-in-law Savitri Devi (PW-7) was also sleeping on the roof. After scribing

Dehati Nalishi (ExP-6), Bhanwar Singh Jadon (PW-10) sent it to Police Station Pandokhar where on the basis of Dehati Nalishi on 4.7.1995 at 9-30

AM, FIR (ExP-14) was registered by Head Constable Harishchand.​

Bhanwar Singh Jadon (PW-10) prepared spot map (ExP-7). Dead body of Ramjilal was sent for postmortem to PHC, Bhander and injured

Surendra was also sent to above mentioned hospital where he succumbed in the early morning. Investigating Officer issued separate safina forms

(ExP-8 and P-10) and prepared separate inquest memos. Dr. D.S.Thakur (PW-1) on 4.7.1995 at PHC, Bhander conducted postmortem of both the

deceased persons and recorded the postmortem report (ExP-2) in relation to deceased Ramjilal and postmortem report (ExP-4) in relation to deceased

Surendra. Both the appellants were arrested on 13.07.1995 and separate disclosures were recorded during investigation and on 14.07.1995 on the

basis of disclosure by appellant No.1, from his house situated at village Khumaria, country-made 12 bore pistol with live cartridges were seized vide

seizure memo ExP-19, a farsa was seized on 14.07.1995 from acquitted accused Ram Prakash. After completing the formalities of investigation,

charge sheet was filed before the Court of JMFC, Bhander, who committed the arisen criminal case to Sessions Judge, Gwalior. Sessions Judge,

Gwalior transferred the arisen sessions trial to above mentioned trial Court.

The trial Court framed charges under Sections 302/34, 307/34 and 450 of IPC and section 25 of the Arms Act against appellant No.1 Hardas and

framed charges under Section 302/34, 307/34 and 450 of IPC against present appellant No.2 Ramvilas and framed charges for offences punishable

under Section 302/34 and 307/34 and 450 of IPC against Ram Prakash. Relating accused persons denied the charge. Ten prosecution witnesses were

examined before the trial Court. It was the defence of present appellants and Ram Prakash before the trial Court that they have been falsely

implicated due to previous enmity and it was specific defence of appellant No.1 Hardas and acquitted accused Ram Prakash that on the date of

incident they were present in their relating village Lapwaha of District Bhind. Defence witness Jaishriram (DW-1) and Mahesh Kumar Sharma (DW-

2), resident of village Lapwaha @ Lapwa were examined in relation to above mentioned defence. The trial Court after hearing acquitted Ram

Prakash from all offences charged against him and acquitted each of the present appellants from charge of section 307/34 of IPC and acquitted

appellant No.1 Hardas from charge of section 25 of the Arms Act but the trial Court convicted and sentenced each appellant as aforesaid, hence this

appeal.​​​

Learned counsel for the appellants vehemently contended that there are material contradictions andinconsistencies regarding weapon of the

appellant No.1 Hardas @ Baba and the trial Court erred in placing reliance on the eye witnesses, complainant Munnibai (PW-3), Mithla PW-4),

Virendra (PW-5), Arvind Kumar(PW-6) and Savitri Devi (PW-7) belonging to the family of complainant and deceased persons. As the incident

occurred in the night, the identification of the assailants was practically impossible and it was clear from the evidence of defence witnesses that

appellant No.2 Ramvilas was present on the date of incident in the village Lapwaha @ Lapva and appellant No.1 was also a resident of village

Kumariya, District Jhansi (UP) and admittedly complainant's family was having enmity with the appellants family. It is also argued that allegedly

Mithila (PW-4) received farsa injury in the incident, but she was not sent for medical examination and it was clear from the evidence of alleged eye

witnesses that they were sleeping on different roofs of their house and Virendra (PW-5) had fled away from his house after jumping from the roof,

but he deposed as eye witness before the trial Court and except Savitri Devi (PW-7), all alleged eye witnesses deposed that appellant No.1 Hardas

was having gun at the time of incident and this fact was clearly mentioned in Dehati Nalishi (ExP-6), but during investigation no gun was seized and

allegedly seized country-made pistol and cartridges were not sent to FSL for examination. It was further contended that some prosecution witnesses

deposed before the trial Court including nephew of complainant, Anil (PW-9) that watchman (Choukidar) of the village went to Police Station

Pandokhar, hence alleged Dehati Nalishi (ExP-6) could not be termed as first information report and allegedly received first report at Police Station

Pandokhar was suppressed by the prosecution. Placing reliance inthe cases of Durbal Vs. State of UP (AIR 2011 SC 795), Rama @ Ramchand and

another Vs. State of MP (1993(1) (crimes) 756), State of Rajasthan Vs. Lala @ Abdul Salam AIR 2008 SC 1497), Badda and others Vs. State of

MP (1995(1) (Crimes) 870 and State of Andhra Pradesh Vs. Punati Ramulu (1993 SC 2644), it is prayed that appeal be allowed and each appellant be

acquitted from the above mentioned offences.​

Per contra, appearing Public Prosecutor on behalf of the respondent/State contends that much emphasis could not be given to trivial contradictions

and omissions and on the basis of some contradictions regarding weapon of the acquitted accused Ram Prakash and his role, benefit of doubt has

been provided to Ram Prakash by the trial Court, but only on the basis of the fact that trial Court has not believed evidence of eye witnesses regarding

acquitted accused Ram Prakash, their evidence could not be discarded in relation to present appellants. It is further argued that the trial Court has

properly and legally analyzed and appreciated the entire evidence available on record and dismissal of the appeal is prayed.​

It is clear from the evidence of Dr. D.S.Thakur (PW-1) and his postmortem report (ExP-2) that on 4.7.1995 at 2-10 PM at the time of starting of

autopsy of deceased Ramjilal aged about 36 years, he found following antemortem injuries:-Wound of entrance (gun shot wound) oval shaped, whose

margins were irregular and inverted, size 1.9x1.6 cm, untraceable depth on left side of chest situated on sixth inter coastal space below the nipple and

this entry wound was having collar of abrasion and blackening was present, but no exit wounds were found on the dead body.

Dr.D.S.Thakur (PW-1) deposed that on dissection he found that the muscles below entry wound were ruptured and the upper and middle portion of

the left lung was totally damaged and in his opinion Ramjilal had died due to cardio respiratory failure due to excessive bleeding caused by gun shot

injuries and he also opined that deceased had died within 24 hours from starting of his postmortem.​

It is also clear from the evidence of Dr. D.S.Thakur (PW-1) and his another postmortem report (ExP-4) regarding another deceased Surendra

aged about 16 years that on 4.7.1995 at 4-00 PM on starting of autopsy of Surendra he found following antemorterm injuries:-(1) Wound of entrance

(gun shot) oval shaped, size 2.2x 1.9 cm untraceable depth on left side of chest about 3 cms. below from the left nipple and entry wound was having

collar of abrasion whose margins were irregular and inverted and there was blackening around this entry wound appearing to be caused by fire-arm.

(2) Wound of exit, circular in shape, averted margins on left side of back in the line of L-1 level 2 cm, size 2.1x2 cm. and blood mixed liquid was

oozing from this exit wound.​

Dr. D.S.Thakur (PW-1) deposed that on dissection of the dead body, he found that muscles beneath each wound were lacerated and the left lung

was totally damaged and the upper part of the spleen was also damaged and he opined that the deceased Surendra died within 24 hours from starting

of his postmortem due to excessive bleeding caused by fire arm.​

It is proved by medical evidence and other evidence also that both the deceased Ramjilal and his son Surendra met with homicidal death caused by

fire-arm and this fact has not been disputed by learned counsel for the appellants but much emphasis has been given on the facts deposed by Dr. D.S.

Tomar (PW-1) in his cross-examination that each deceased was shot dead by fire-arm and as Ramjilal received fire-arm injury by acartridge having

pellets by a 12 bore fire arm, whereas Surendra received fire-arm injury caused by cartridge having bullet.​

Complainant Munnibai (PW-3), her sons Virendra (PW-5) and Arvind (PW-6), complainant's mother-in-law Mithila (PW-4) and complainant's

sister-in-law Savitri Devi (PW-7) who are eye witnesses deposed that at the time of incident they were sleeping on the roof of their house with above

mentioned both deceased persons. Complainant Munnibai (PW-3) deposed in cross-examination (para 9) that two shots from gun were fired on her

husband Ramjilal and after hearing sound of first shot she got awaken. Thereafter, second shot was fired by gun over her husband and these facts

were disclosed by her in her Dehati Nalishi report (ExP-6) and police statement (ExD-2), but the fact of firing of two shots over her husband by gun is

missing in Dehati Nalishi report and her police statement. Complainant deposed in cross-examination that after hearing the sound of first shot, she

lightened the torch and she identified all the three accused persons in torch light, but the fact of lighting of torch by her is missing in her Dehati Nalishi

(Ex P-6) and police statement. Much emphasis has been given by appellants' counsel on these alleged contradictions, but in the Dehati Nalishi (Ex P-

6) this fact has been disclosed by the complainant that in light she identified the assailants.​​​

It is true that there were material contradictions regarding the weapon and role of the acquitted Ram Prakash, but benefit of these contradictions

have been given to Ram Prakash and he has been totally acquitted by the trial Court and his acquittal is not challenged by the prosecution. It is well

settled that in our judicial system, the total evidence of any witness could not be disbelieved, only because some part of his evidence is found unreliable

or unbelievable.​

Complainant's sister-in-law Savitri Devi (PW-7) deposed that appellant No.1 Hardas was having a country-made pistol at the time of incident,

whereas all other eye witnesses, complainant Munnibai (PW-3), Mithila (PW-4), Virendra (PW-5) and Arvind (PW-6) deposed that appellant No.1

Hardas was having gun and this fact was also mentioned in Dehati Nalishi. Much emphasis has been given by the learned counsel for the appellants

on the fact that during investigation allegedly a country-made pistol was recovered at the instance of appellant No.1, but as the trial Court itself has

acquitted the present appellant No.1 Hardas from the charge of Section 25 of the Arms Act because both the panch witnesses of relating disclosure

memo and seizure memo regarding country-made pistol were not examinedbefore the trial Court and similarly prosecution's sanction order was not

found proved by the trial Court and it appears that allegedly seized fire-arm and cartridges were not sent to FSL, but in the light of casesof

Krishnegowda Vs. State of Karnataka (AIR 2017 SC 1657), Sudha Renukaiah Vs. State of A.P. (AIR 2017 SC 2124) and State of Punjab Vs.

Gurmit Singh and another (AIR 1996 SC 1393), it is clear that only due to negligence or carelessness of investigating officer, the evidence of

complainant or other eye witnesses could not be thrown out totally.​

It is clear from the facts emerged in cross-examination of complainant Munnibai (PW-3) and some other prosecution witnesses that different

rooms of house of complainant were having different heights, hence the total roof of complainant's house were not having similar surface, therefore,

some eye witnesseshave deposed that they were sleeping at another roof of same house. The incident occurred at mid night or thereafter, hence at

such time, only family members of the deceased persons could be eye witnesses. The fact of awakening of sleeping family members of deceased

persons after hearing the sound of first shot fired by fire-arm appears to be natural and believable. Mithila (PW-4) deposed that her grandson Bablu

@ Virendra (PW-5) after jumping from the roof reached to the house of Pachori and from the house of Pachori air fires were made. On this point the

evidence of Mithila (PW-4) and Virendra (PW-5) is totally supported by the evidence of Ram Kumar Prajapati (PW-8), who deposed that on the date

of incident in the night he made air fires from his house, but as he heard that dacoits have entered into their village and next morning he found that

Ramjilal was lying dead in his house and his son Surendra was also having fire arm injury, but at that time Surendra was alive. Savitri Devi (PW-7)

deposed that after hearing sound of first fire of awakening, she saw that appellant No.1 Hardas fired on his brother Ramjilal by country-made pistol

and thereafter appellant No.2 Ramvilas fired from country-made pistol over Surendra and thereafter Bablu @ Virendra (PW-5) fled away from the

roof after jumping. Thereafter accused persons also fled away after jumping from the roof.​​​

Contrary to complainant Munnibai, Savitri Devi (PW-7) deposed in cross-examination (para 4) that on awakening she saw that accused persons

were standing on the roof and they have lightened the torch, hence she identified them. She also deposed in cross-examination that appellants were

residents of same village Barka and an electric bulb was lightening at the door and on the date of incident there was moon light, hence she easily

identified accused persons. She clearly admitted in her cross-examination (para 8) that accused persons did not try to cause injury to her or any other

person except Ramjilal and Surendra.​

It is clear from the evidence of complainant Munnibai (PW-3) that she was facing trial with her husband Ramjilal for charge of murder of

Kamlesh, who was real brother of appellant No.1 Hardas. It is clear from spot map (ExP-7) and evidence of the investigating officer (PW-10) that

just behind complainant's house, house of family of the appellants is shown. In view of these facts and circumstances, the identify of the accused

persons by family members of the deceased could not be doubted. It is true that Virendra @ Bablu (PW-5), son of the complainant deposed in his

examination-in-chief that he got awaken after hearing the sound of boots over their roof then he saw three tried accused persons with some other

accused persons. In cross-examination (para 15) he deposed that in total he saw seven accused persons including three tried accused persons and in

para 16 he deposed that he could not identify other four companions of the appellant, but all other eye witnesses have clearly deposed that just after

hearing sound of firing shots from fire-arms, Virendra @ Bablu fled away after jumping from the roof, hence it is clear that above mentioned fact

deposed by Virendra regarding seeing total seven assailants at the time of incident is an exaggerated evidence given by him. His father Ramjilal and

younger brother Surendra have received fire arm injuries and as clear from the evidence of other eye witnesses that he had fled away immediately, as

above mentioned exaggerated evidence appears to be totally unbelievable. Even his mother complainant Munnibai has not deposed aboutinvolvement

of any other person except three named accused persons, namely, Hardas, Ramvilas and Ram Prakash indicated in her Dehati Nalishi (ExP-6).​

As it is clear from the evidence of investigating officer Bhanwar Singh Jadon (PW-10) and from his recorded Dehati Nalishi (ExP-6) that

investigating officer had recorded this Dehati Nalishi (Ex P-6) at 8-30 AM on 4.7.1995. At the time of recording of evidence of investigating officer,

Bhanwar Singh Jadon, relating case diary was not available and it is clear from the record oftrial Court that relating rojnamcha register of Police

Station Pandokhar was eliminated, hence he was not able to disclose that how he received first intimation regarding the incident before reaching to

village Barka, but he deposed in cross-examination that he recorded the police statement of Anil (PW-9), who stated in his police statement that after

the incident he reached to scene of occurrence where his aunt complainant Munnibai (PW-3) intimated him regarding incident and thereafter he had

reached to police station for intimating with watchman (Choukidar).​

Anil (PW-9) deposed that deceased Ramjilal was his uncle and after the incident in next morning when he reached to deceased's house, he

received information that Hardas, Ramvilas and Ram Prakash have fired shot from fire-arms at his uncle Ramjilal and his cousin brother Surendra and

thereafter watchman (Choukidar) of the village had gone to police station for intimating. In para No.3 of his cross-examination Anil deposed that he

lodged report at Police Station, but he also deposed that he was informed about the incident by his injured cousin brother Surendra, who was alive at

that time, but it is clearly mentioned by complainant Munnibai (PW-3) in her Dehati Nalishi (ExP-6) that after receiving injury her son Surendra was

unable to speak. Investigating officer Bhanwar Singh also explained in his cross-examination that some times intimation regarding any incident is

received at police station, but as the informer remained unable to inform about all the material facts regarding the incident, then after receiving such

incomplete information, generally report or first information is not recorded at the police station. In the light of case of Sidhartha Vashisht @ Manu

Sharma Vs. State (NCT ofDelhi) [(2010) 6 SCC 1), it is clear that even a telephonic intimation received at police station regarding happening of a

crime could not be termed as first information report.​

It is well settled that the alleged motivation of murder comparatively has importance in cases based totally on circumstantial evidence. Admittedly,

deceased Ramjilal and his wife complainant Munnibai (PW-3) were facing sessions trial in reference to charge of murder of Kamlesh, the real brother

of present appellant No.1 Hardas and appellant No.2 Ramvilas is son of acquitted accused Ram Prakash.​

Regarding exaggerations or improvements made by some prosecution witnesses, it has been observed in thecase of State of UP Vs. Anil Singh

(AIR 1988 SC 1998) as follows:-“13. Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of

cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added

by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out

the indifferent attitude of the public in the investigation of crimes. The public aregenerally reluctant to come forward to depose before the Court. It is,

therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is

proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to

falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our

country to back up a good case by false or exaggerated version. The Privy Council had an occasion to observe this. In Bankim Chander v. Matangini,

24 Cal WN 626 : (AIR 1919 PC 157), the Privy Council had this to say:​​​​

That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly

unture, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence.""14. In Abdul Gani v.

State of Madhya Pradesh, AIR 1954 SC 31 Mahajan, J., speaking for this Court deprecated the tendency of courts to take an easy course of holding

the evidence discrepant and discarding the whole case as untrue. The learned Judge said that the Court should make an effort to disengage the truth

from falsehood and to sift the grain from the chaff.15. It is also our experience that invariably the witnesses add embroidery to prosecution story,

perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main,

the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the

inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside

over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as

important as the other. Both are public duties which the Judge has to perform.â€​​​

It is clear that the incident occurred at the roof of complainant's house and both deceased persons received injuries from shots made by fire-arms.​

We are of the considered opinion that the trial Court properly and legally analyzed and appreciated the entire evidence available on record and did

not commit any error in convicting the appellants in the light of referred citations. It would be significant to mention here that regarding alleged plea of

alibi raised on behalf of accused persons, present appellant No.2 Ramvilas and acquitted accused Ram Prakash took plea that on the date of incident

on 4.7.1995 they were present in their village Lakpawa @ Lapva, but defence witness Jaishriram (DW-1) deposed that on 4.7.1995, in the evening at

about 6-7=00 PM he saw acquitted accused Ram Prakash at his grocery shop. Jaisriram did not depose anything regarding present appellant No.2

Ramvilas. It is significant to mention here that the incident occurred in the intervening night of 3/4 July, 1995. Mahesh Kumar Sharma (DW-2)

deposed that acquitted Ram Prakash and appellant No.2 Ramvilas are presently residing in his village Lakpawa @ Lapva since 8-9 years and prior to

that they were residents of village Barka and about six years ago appellants came to his village Lakpawa @ Lapva.​​​

It is clear that the evidence of both these eyewitnesses is not mutually corroborative and supplementary to each other as Jaisriram (DW-1)

deposed only regarding acquitted accused Ram Prakash. It is clear that the evidence of such defence witnesses is not able to shake the veracity of

evidence of relating eye witnesses of the incident. Present appeal filed on behalf of both the appellants is not having any substance.​

Consequently, the appeal filed by the appellants Hardas @ Baba and Ramvilas is hereby dismissed and their above mentioned conviction and

sentence as recorded by the trial Court is affirmed. Appellants are in jail, they be intimated with the result of this appeal through relating Jail

Superintendent. With copy of this judgment, record of the trial Court be returned.