Rakesh And Others vs State Of Madhya Pradesh

Conviction,Sentence

UnderSection 302/149 of IPC.

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Under Section 148 of

IPC","Imprisonment for life and fine of Rs.1000/-

in default of payment of

fine, R.I. for 15 days to each

R.I. for 3 years to each

were also going on the bike. They were behind their vehicle and near Chorakheda temple, he saw that a white color Marshal jeep came from the",

opposite direction and dashed the said bike with intention to kill them. All the three persons had fallen and they all were crying. The vehicle was,

moved forward and back to crush these persons. All the accused persons got down from the vehicle and exhorted each other not to spare them and,

thereafter all the accused persons kicked the deceased persons and accused Rakesh Patel inflicted injury on the right cheek of deceased Lachhu with,

the help of knife. In fact the statement of PW-2 has been repeated by him word by word.,

Next eye witness is PW-7 Kotilal. In para-2 of hisdeposition, he deposed that on the date of incident at about 12.30 PM, he was sitting with his",

father Pyarelal near Chodakhera temple, he saw that one while color Marshal vehicle came from Rajnagar which was being driven by accused",

Rakesh Patel and he also saw other accused persons Mahesh, Kalicharan, Kamta and Mohan sitting on the vehicle. The vehicle had passed from the",

place where he was sitting and thereafter he heard loud sound of dash. He alongwith his father, rushed to the spot and saw that the accused persons",

were moving the vehicle forward and back and were trying to crush deceased Babulal and Rajaram. In para-3 of his statement, he also stated that",

accused Rakesh Patel had taken out knife from his pocket and inflicted injury on the cheek of deceased Lachhu. Thus, he also supported the",

testimony of PW-2 Suresh Patel and PW-4 Bhagwat Patel.,

Testimony of these witnesses who are closely relatedto the deceased have to be examined carefully and with caution on anvil of the facts of the,

present case. In order to appreciate the testimony of eye witnesses, now we consider it apposite to refer to the medical evidence available on record.",

Deceased Lacchu was first exsamined by Dr.Pankaj Rastogi (PW-8). His MLC report is Ex.P-13. He found that when Lachhu Patel was brought,

for medical examination he was semi conscious and there was a possible fracture on his right wrist and there was a fracture near right chin and there,

was also a lacerated wound admeasuring 2 x 1 cm. He had also carried out the postmortem of Babulal Khare. He found 5 injuries on his person. The,

injury no.1 was on forehead 8 x 4 cm and below there was fracture and damage to brain. His both arms were crushed. Radius and ulna bones were,

found broken. His right leg was found crushed and the bones tibia and fibula were found fractured. The lower portion of left thigh was also found,

crushed. There was also fracture in femur bone. Fifth injury was scratches on arms and there was bleeding. According to him, injury no.1 was",

sufficient to cause death in ordinary course of nature. The cause of death of deceased Babulal was coma because of damage to brain matter. The,

postmortem report is Ex.P-14. The postmortem of Rajaram S/o Lachhu Patel was performed by Dr. Suresh Jatav, who has been examined as PW-11",

and found as many as  11 injuries on the person of Rajaram. Injury nos. 1 to 3 were on the cheek and near head. The other injuries were fracture,

and scratches. The cause of death was due to shock because of the rupture of vital organs. The postmortem report is Ex.P25A.,

The prosecution has also examined the ScientificOfficer, Mobile Unit Chhatarpur (PW-18) Akhilesh Bhargav. He deposed that he had inspected",

the spot alongwith SDO(P) Khajurao and T.I. Urmalia. Before the spot inspection, there was already rain. The vehicle was badly damaged from the",

front side and bumper of driver seat, number plate and head lights were damaged. It was clearly indicating dash of vehicle. He found that the vehicle",

had gone into a pit from the road after the dash. His report is Ex.P-41 and the photographs of the vehicle and spot have been produced as Ex.P-41-A,

to Ex.P-41-S on the record. The FSL report has been produced by the prosecution.,

The contention of the learned counsel for theappellants is that in view of discrepancy in ocular and medical evidence the testimony of eye,

witnesses is not trustworthy because they are chance and interested witnesses. The same has to be considered in the light of the law laid down in the,

various judgments passed by the Apex Court. In the case of Mahavir Singh Vs. State of Madhya Pradesh, (2016)10 SCC 220, it is held that the",

evidence of interested witness needs to be scrutinized with utmost care. It can also be relied upon if the evidence has a ring of truth to it, is cogent,",

credible and trustworthy. In regard to chance witness it is held that it is to be seen that although evidence of a chance witness is acceptable in our law,",

yet the chance witness has to reasonably explain his presence at that particular point. In another case Harbeer Singh Vs. Sheeshpal and others,",

(2016)16 SCC 418, it is held that the the chance witnesses are those who  are in the habit of  appearing suddenly on the scene when something is",

happening and then disappearing after noticing the occurrence. It is held that the deposition of chance witnesses whose presence at the place of,

incident is doubtful ought to the discarded.,

In regard to the submission that the testimony of eyewitnesses is not reliable because they are close relatives, the Apex Court in the cases of",

Brathi alias Sukhdev Singh Vs. State of Punjab, AIR 1991 SC 318 and State of A.P. Vs. Punati Ramulu and others, 1994 Supp(1) SCC 590 has held",

that relation-ship by itself is not enough to discard the testimony of related witnesses but the same has to be examined with great care.,

Before considering the case of appellant nos. 2 to 7,the case of appellant Rakesh is examined first. In the FIR lodged by one of deceased Lachhu,",

a specific statement has been made in the FIR ( treated as dying declaration) that the vehicle was being driven by Rakesh. The same fact is also,

mentioned in the marg intimation. It is not in dispute that the offending vehicle is owned by appellant Rakesh and while submitting application for,

release of the vehicle by appellant Rakesh and his wife Smt.Neeta Devi, it was admitted that he was driving the vehicle at the time of the incident.",

We find that the contention of the learned counsel for appellant Rakesh cannot be accepted that he has been falsely implicated because prompt FIR,

was lodged by one of the deceased himself and in the marg intimation also the said fact is repeated. In view of the aforesaid, so far as appellant",

Rakesh is concerned, we find that the prosecution has proved its case beyond any doubt that the vehicle was being driven by Rakesh and he",

intentionally dashed the bike with an intention to murder the deceased persons and therefore, we do not find any error in the conviction and sentence",

of appellant no.1 Rakesh.,

So far as the other appellants are concerned, theyhave been convicted with the aid of Section 149 of the Code of Criminal Procedure. We have to",

examine the testimony of eye witnesses in the light of the law as discussed in the preceding paragraph regarding the credibility of ""Chance and",

Related witnesses"".There is discrepancy in regard to the certain allegation in the FIR and marg intimation which was also recorded at the same time.",

Learned counsel for the appellants has drawn attention of this court to marg intimation Ex.P-29 stating that the said document is a tampered one, as",

some of the lines have been written over the thumb impression, which proves the fact that thumb impression was taken first and thereafter the same",

was written. It is manifest that both the reports have been registered at the same time but in the marg intimation, it is not written that the informants",

had disclosed that the vehicle was moved forward and back to crush the deceased persons. It is also noted that in the marg intimation, certain words",

are written over thumb impression of deceased Lachhu, which certainly creates suspicion on the facts recorded in the FIR and marg intimation. Bare",

perusal of marg intimation Ex.P-29 supports the contention of the counsel for the appellants that the same was written later after obtaining thumb,

impression of the deceased on blank paper.,

We have also taken into consideration the background of the enmity between the complainant and the accused persons which is undisputed in,

view of the fact that father of the accused Rakesh was murdered in year 1995 in the same manner and deceased Lachhu was tried but was acquitted.,

In para-48 of the judgment, the trial court has taken into consideration the trial of the said case in which deceased Lachhu was acquitted of murder of",

father of accused Rakesh. Therefore, the dying declaration (FIR) lodged by Lachhu, testimony of Chance and Related eye witnesses have to be",

examined carefully on the anvil of the background of the enmity. We are also aware that the enmity is a double edged weapon, therefore, the dying",

declaration and the testimony of witnesses have to be examined with all care and caution in the facts of the present case. On careful scrutiny of the,

FIR and the marg intimation in the back ground of the previous trial and considering the fact that complainant Lachhu was an accused in the said trial,

and had experience of police interrogation, trial, etc. the possibility of exaggerating the incident by implicating other persons alongwith Rakesh can not",

be ruled out.,

Now we proceed to examine the testimony of eyewitness PW-2 Suresh Patel, PW-4 Bhagwat Patel and PW-7 Kotilal in the light of the law",

discussed in the preceding paragraphs in respect of the evidence of Chance and Related witnesses. Their testimony has to be examined with care and,

caution as held by the Apex Court. All these witnesses are closely related to deceased Lachhu and are also chance witnesses. PW-2 Suresh Patel,

has deposed that he was going to Rajnagar Market at the same time alongwith Bhagwat and was behind the vehicle of the deceased. His statement,

has been supported by the other witnesses PW-4 Bhagwat and PW-7 Kotilal in the identical words even the sequence of facts and names of the,

accused persons sitting in the vehicle are the same which does not rule out the possibility that they are tutored witness. We have kept in our mind, the",

background of the present case that deceased Lachhu was one of the accused in the case of murder of father of present accused/appellant Rakesh.,

The co-incidence cannot be stretched too much in the facts of the present case that all these witnesses had reached the spot of the same time for one,

or other reason. Suresh and Bhagwat were going on the bike and PW-7 Kotilal was at the temple. All these witnesses had narrated the incident in the,

identical words and sequence. These witnesses are related and therefore, the testimony of these witnesses is not beyond suspicion and do not enjoy",

the confidence of this court and therefore, we proceed to examine the medical and other evidence to see whether it corroborates the testimony of",

these Related and Chance witnesses.,

In the MLC of deceased Lachhu and in the postmortem report, no crushed injury by a vehicle has been found. In the medical report there is no",

knife injury on the person of Lachhu. Dr. Suresh Jatava (PW-11) has deposed in his statement that he did not find any crush injury by vehicle on the,

body of any deceased person and further he has also not found any knife injury on the person of Lachhu. In addition to this, the FSL report and the",

Scientific Officer examined as PW-18 Akhilesh Bhargav has also stated that he did not find any tyre marks either on the surface near the spot or on,

the dead bodies of these persons. The other injuries which were found in the MLC and postmortem are certainly injuries caused by dash but not,

corroborating the statements made in the FIR(dying declaration) by Lachhu or by the eye witnesses that they were crushed by the vehicle by giving,

momentum to it forward and back and thereafter the accused persons 2 to 7 had beaten them with kicks and appellant Rakesh inflicted injury with the,

help of knife on the cheek of the deceased. Thus, the medical and forensic report do not support the testimony of eye witnesses PW-2 Suresh Patel,",

PW-4 Bhagwat Patel and PW- 7 Kotilal. Taking into consideration the fact that all these eye witnesses are closely related and are chance witnesses,",

the testimony of these witnesses is not trustworthy in absence of corroboration by medical and forensic evidence to the extent of allegation that,

appellant nos. 2 to 7 got down from the vehicle, beaten the deceased persons and knife injury was inflicted by appellant Rakesh. There is no other",

evidence showing that appellant nos. 2 to 7 had formed any common object with appellant Rakesh for causing murder of Lachhu and other deceased,

persons. It is manifest that after dash to the bike, the vehicle had gone in a pit and the same was not in a position to be mobilized. He further submitted",

that no marks of tyre of the vehicle have been found on or near the dead body and surface at the spot. Therefore, the allegation that the vehicle was",

moved back and forth after the dash is neither supported by the medical evidence nor by forensic report and therefore, the intention to cause death of",

the deceased persons has not been established by the prosecution.,

FIR ( treated as dying declaration) and the testimonyof eye witnesses prove that Rakesh was driving the vehicle and the bike on which the,

deceased were sitting, was dashed by him. Vehicle was not in a position to move forward and back, which is evident from the photograph and the",

allegation that other appellant nos. 2 to 7 caused any injury by beating and knife has not been proved. Thus, the prosecution has failed to prove the",

common object to commit murder of deceased Lachhu and others. The individual act of Rakesh would not make the other appellants responsible in,

absence of proof of formation of unlawful assembly and common object. Even the presence of other appellants is also doubtful as the testimony of,

eye witnesses does not enjoy the confidence of this court. Thus, the prosecution has failed to establish the case of unlawful assembly and common",

object to murder by appellant nos. 2 to 7. Hence, they are extended the benefits of doubt. They are acquitted of the charge under section 302/149 of",

IPC.,

Resultantly, the appeal (Criminal Appeal No.2185/2007) of appellant Rakesh is dismissed but the appeal of appellant nos. 2 to 7 Mohan, Kamta,",

Kalicharan, Mahesh, Suresh and Gokul is allowed and they are acquitted. Appellant nos. 2 to 7 be set at liberty forthwith, if not wanted in any other",

case.,

Criminal Appeal No.2153/2007 has been filed underSection 454 of the Code of Criminal Procedure by wife of appellant Rakesh. It is directed,

against the order of the trial court; whereby, Bolero Jeep seized in the case had been directed to be confiscated and auctioned and for aforesaid",

purpose, she was directed to produce the vehicle before the trial Court within 15 days. It has been proved in this case that Bolero vehicle seized in the",

case had been used as a weapon of offence to commit murder of three persons. The conviction of appellant Rakesh for aforesaid offence has been,

maintained by this Court. In these circumstances, the order of the trial Court directing confiscation of the vehicle is perfectly justified and warrants no",

interference under Section 454 of the Code of Criminal Procedure by this Court.,

Consequently, aforesaid direction is upheld and criminal appeal no.2153/2007 is dismissed.",