Ramlakhan and Another vs State of Madhya Pradesh

S.K. Gangele, J.—Since both Criminal Appeal Nos. 257 of 2002 and 270 of 2001 have been arisen out of common judgment of conviction and order of sentence dated 29-04-2002, passed by the learned Fourth Additional Sessions Judge, Morena, (MP) in Sessions Trial No. 160 of 1999, hence, they are being taken together and disposed of by this common judgment. Appellants Ramlakhan and Rajkumar [in Criminal Appeal No. 257 of 2002] have been convicted under Sections 148, 307, 302 /149 and Section 27 of the Arms Act and sentenced to suffer two years rigorous imprisonment for the offence u/s 148 of IPC; five years rigorous imprisonment with fine of Rs. 2,000/- for the offence u/s 307 of IPC; rigorous imprisonment for life with fine of Rs. 3,000/- for the offence u/s 302 read with Section 149 of IPC; and also sentenced to suffer three years rigorous imprisonment with fine of Rs. 1,000/- each for the offence u/s 27 of the Arms Act with default stipulation. All the sentences have been directed to run concurrently.

Appellant Jagdish [in Criminal Appeal No. 270 of 2002] has been convicted under Sections 148, 307 /149, 302 /149 and Section 27 of the Arms Act and sentenced to suffer two years rigorous imprisonment for the offence u/s 148 of IPC; five years rigorous imprisonment with fine of Rs. 1,000/- for the offence u/s 307 /149 of IPC; rigorous imprisonment for life with fine of Rs. 3,000/- for the offence u/s 302 /149 of IPC; and also sentenced to suffer three years rigorous imprisonment with fine of Rs. 1,000/- each for the offence punishable u/s 27 of the Arms Act with default stipulation. All the sentences have been directed to run concurrently.

The prosecution story, in short, is that on 16-01-1999 at around 7:00-8:00 O''clock in the morning, accused Om Prakash and other two unknown persons came to the house of complainant Ramakhtiyar (PW1). Accused Ramlakhan and Rajkumar were armed with 12 bore guns, accused Jagdish was armed with licensee mouser gun, co-accused Om Prakash was armed with ''''lathi'''' and other two unknown persons were armed with ''''katta'''' and gun. Ramlakhan fired a gunshot from his 12 bore gun, which hit the right rib of Ramakhtiyar, who was standing at his door. Rajkumar fired another gunshot, due to which bullet of the aforesaid gunshot hit the chin and palm of left hand of complainant Ramakhtiyar. Om Prakash inflicted injury by ''lathi'' on the back of Ramakhtiyar. On hearing sound of gunshot fires, inmates of complainant Ramakhtiyar ran away here and there. At that time, father of complainant, Raghuveer was sitting near the fire for taking heat in front of the door of one Natthi. The accused persons fired at Raghuveer by their firearm weapons. Raghuveer received injuries on his chest, back, stomach, left leg and other parts of the body as a result of which, he died on the spot. Thereafter, accused persons fired at Ramakhtiyar, Manoj and Harkishan with intention to kill them. Ramakhtiyar hide himself in the field of mustard, Manoj took to his heels towards Morena and Harkishan towards the village. All the accused persons fired about 20-25 rounds. The family members of the complainant tried to run away here and there and at that time one Sanjay fell on the ground, due to which he sustained injury in his eyes. On getting information from Manoj, Balkishan informed the incident on telephone to police Civil Line, Morena, on that basis, police reached village Imliya and at round 9:50 O''clock in the morning a Dehati Nalishi Ex. P.1 was recorded. Police conducted investigation and prepared spot map. Panchnama of dead body of the deceased was prepared and thereafter it was sent to District Hospital, Morena for post mortem. Injured Ramakhtiyar and Sanjay were also sent for medical examination. Blood stained and simple earth were taken and empty cartridges of 12 bore gun were seized from the spot. A case was registered vide Crime No. 09/99 at police station Civil Line, Morena on the basis of which, a merg was recorded. The accused persons were arrested and from their possession, licensee mouser gun, 12 bore gun and lathi were seized. The seized articles were sent to FSL, Sagar for chemical examination. After completion of investigation, charge-sheet was filed against all the accused persons before the competent Court from where the case was committed to the Sessions Court.

The appellants-accused abjured their guilt and pleaded their innocence. The accused persons in their statements recorded u/s 313 of Code of Criminal Procedure denied the charges. The prosecution, in support of its case, examined as many as twelve witnesses. After concluding the trial, the learned trial Court convicted the appellants and awarded the sentence as stated above. During trial, co-accused Om Prakash died.

Learned senior counsel appearing on behalf of the appellants has submitted that Balkishan informed about the incident on telephone to police Civil Line, Morena, however, in the aforesaid information, he did not name any person. It is further submitted that there are major omissions and contradictions in the evidence of Ramakhtiyar Dandotiya (PW1), Manoj Dandotiya (PW2) and Harkishan Dandotiya (PW4), who are relatives of the deceased. It is further submitted that as per evidence of these witnesses, number of gunshots were fired and police did not recover sufficient cartridges or there was no sign of gunshot. Hence, the version of these witnesses is not proper. There is no independent eye-witness of the incident.

On the other hand, learned Deputy Advocate General appearing on behalf of the State has submitted that the offence against the appellants is proved beyond reasonable doubt and the learned trial Court has rightly passed the impugned judgment of conviction and order of sentence against the appellants.

We have perused the impugned judgment as well as the record of the learned trial Court.

Ramakhtiyar Dandotiya (PW1) in his evidence, deposed that on 16-01-1999, at around 7:00-8:00 O''clock in the morning, he had been standing in front of his house at village Imliya. Ramlakhan and Rajkumar armed with 12 bore guns, Jagdish armed with licensee mouser gun, Om Prakash armed with ''lathi'' and other two unknown persons armed with ''''katta'''' and gun, came there. Ramlakhan fired a gunshot from his 12 bore gun which hit on his right rib. Rajkumar fired another gunshot from his 12 bore gun, due to which bullet of aforesaid gunshot hit chin and palm of his left hand. Om Prakash also inflicted ''''lathi'''' blow to his back. He further deposed that his father Raghuveer was sitting near the fire for taking heat in front of the door of one Natthi. The accused persons fired at his father Raghuveer as a result of which his father received injuries on his chest, back, stomach, left leg and other parts of the body and he fell down on the ground and thereafter died on the spot. He further deposed that all the accused persons fired about 20-25 rounds. He further deposed that he hide himself in the field, his brother Manoj fled away towards Morena and also his uncle Harkishan ran towards the village. His family members tried to run away here and there and at that time, Sanjay fell on the ground due to which he sustained injury. He further deposed that his brother Manoj informed Balkishan at Morena regarding the incident and then Balkishan informed the incident on telephone to police Civil Line, Morena. Thereafter, on the basis of aforesaid information, police reached village Imliya and at round 9:50 O''clock in the morning Dehati Nalishi (Ex. P1) was recorded. Then, police sent him and injured Sanjay for medical examination at Morena Hospital and also brought dead body of his father Raghuveer for post mortem. He further deposed that he was admitted in the hospital for near about 8-10 days. There is lengthy cross-examination of the aforesaid witness, but his evidence is unshaken.

Another witness, Manoj Dandotiya (PW2) in his evidence, deposed that on 16-01-1999 at around 7:00-8:00 O''clock in the morning he was coming to his house from his field. When he reached near a well then he heard sound of gunshot firing. He ran to his house. He further deposed that at that time, his father Raghuveer was sitting near the fire taking heat in front of the door of one Natthi. He further deposed that he saw that accused Jagdish, Ramlakhan and Rajkumar had been making fire at his father. When accused persons saw him, they had also fired at him. Om Prakash also inflicted ''lathi'' blow to his father. Thereafter, he ran away near the mustard field of Morena. Then, he informed Balkishan (elder brother of the deceased) regarding the incident and Balkishan then informed the incident on telephone to police Civil Line, Morena. Police thereafter came to the village and seized blood stained and simple earth and empty cartridges of 22-15 rounds. Ramakhtiyar also received bullet injuries. He further deposed that he had signed Ex. P2 to Ex. P6 and spot map Ex. P7. He further deposed that his father had died on the spot. There is lengthy cross-examination of this witness, however, his evidence is unshaken.

Dr. Ravindra Singh Sikarwar (PW3) in his evidence, deposed that on 16-01-1999 he was posted as Assistant Surgeon at District Hospital Morena. He had conducted X-ray of injured Ramakhtiyar Dandotiya (PW1) and vide Ex. P9 found the following injuries on the person of the injured:-

The doctor opined that there is no bony injury over the person of the injured.

Dr. Ravindra Singh Sikarwar (PW3) had also conducted X-ray of injured Sanjay and vide Ex. P.8 found the following injury on the person of the injured:-

The doctor opined that the injury sustained by the injured was caused by hard and blunt object and the injury was simple in nature.

Harikishan Dandotiya (PW4) in his evidence, deposed that on 16-01-1999 at around 7:00-8:00 O''clock in the morning, he had been coming towards his village and he saw that accused Jagdish, Om Prakash, Rajkumar and Ramlakhan fired at complainant Ramakhtiyar. They also fired at his brother Raghuveer. Two other unknown persons were standing along with accused persons on the spot. His brother Raghuveer died on the spot. After some time, police reached on the spot.

Phool Singh (PW5) in his evidence, deposed that he was posted as Head Constable on 16-01-1999 at police station, Civil Line Morena. He had received Dehati Nalishi Ex. P1. On the basis of aforesaid Dehati Nalishi, he had registered a case at Crime No. 09/99 against the accused persons vide Ex. P10.

Nathilal Sharma (PW6) in his evidence, deposed that he was posted as Head Constable on 05-02-1999 at Police Station Civil Line, Morena. He deposed that accused Jagdish surrendered before the CJM, Morena along with licensee gun and he was arrested vide arrest memo Ex. P12. He further deposed that he had also prepared seizure memo of licensee gun vide Ex. P13.

Dr. S.C. Agrawal (PW7) in his evidence, deposed that he conducted post mortem of deceased Raghuveer and found the following injuries on the person of the deceased:-

The doctor opined that cause of death of the deceased was haemorrhage shock due to rupture of vital organs, as a result of firearm weapon.

Jagramsingh Kushwah (P.W. 9) in his evidence, deposed that on 16-01-199 he was posted as In-Charge Police Station Civil Line, Morena. An information was received on telephone from Balkishan which was recorded by him on Rojnamacha Sanha No. 808 and thereafter he reached village Imliya. Complainant Ramakhtiyar lodged Dehati Nalishi Ex. P1 at the village and thereafter he had sent it to Police Station Civil Line, Morena for registration of case. He prepared spot map Ex. P7. He further deposed that he had taken blood stained and simple earth from the sopt vide Ex. P2. He prepared Panchanama of dead body of the deceased vide Ex. P10. He also seized empty cartridges of 12 bore gun and one live cartridge of 12 bore gun vide seizure memo Ex. P3. Thereafter he conducted the investigation. There is lengthy cross-examination of the aforesaid witness, however, his evidence is complete.

There is also a dying declaration (Ex. D1) of injured Ramakhtiyar recorded by the Additional Tahsildar. In the aforesaid dying declaration, he deposed that Ramlakhan S/o. Omprakash Dandotiya and Rajkumar S/o. Omprakash Dandotiya had fired at him and Omprakash S/o. Ramjilal Dandotiya had beaten him by ''lathi''. He further deposed that Jagdish was also a member of assailants. He received gunshot injuries in the incident. The dying declaration Ex. D.1 has been produced in defence, but it is not produced by the prosecution.

From the evidence of eye-witnesses, namely, Ramakhtiyar Dandotiya (PW1), Majoj Dandotiya (PW2) and Harkishan (PW4), it is clear that accused had fired gunshots at the deceased. Ramakhtiyar Dandotiya (PW1) is an injured witness. He was admitted in the hospital for near about 8-10 days. Therefore, his evidence could not be discarded.

The learned senior counsel appearing on behalf of appellants has argued that the FIR, Dehati Nalishi lodged by Ramakhtiyar Dandotiya (PW1) is hit by Section 162 of Cr.P.C. because prior to it, one Balkishan had informed on telephone to police Civil Line, Morena and detail of the incident was given to the police, therefore, FIR is not admissible in evidence.

This argument is without any legal force because this aspect has been dealt with meticulously by the trial Court in para 9 of its judgment and gave finding by holding that only names of persons firing were given. Anybody was injured is not found mentioned in the information. Therefore, it is not proved that any offence was committed. The learned trial Court has relied on the judgment in State of M.P. Vs. Pattu alias Pratap Singh, . There is no occasion for this Court to take different view of the trial Court because the information to police by Balkishan does not disclose that any offence has been committed, therefore, it cannot be treated as an FIR.

The Hon''ble Supreme Court in the case of Pandurang Chandrakant Mhatre and Others Vs. State of Maharashtra, has held that a cryptic information about cognizable case, is not an FIR.

Another submission on behalf of appellants is that evidence of prosecution witnesses is highly interested, belonging to the same family and highly inimical with the appellants and full of material omissions and contradictions.

This argument is without any force because the learned trial Court in para 8 of its judgment clearly mentioned that Ramakhtiyar Dandotiya (P.W. 1), Manoj Dandotiya (P.W. 2) and Harkishan (P.W. 4) are relatives of deceased Raghuveer. Apart from these witnesses, prosecution has not examined any other eye-witness. But the learned trial Court in para 8 has rightly observed that it is true that these three witnesses are relatives of the deceased. Merely on this ground, their evidence cannot be treated with suspicion because what law requires, is that their evidence has to be examined carefully.

One aspect cannot be forgotten that out of three witnesses, one witness is injured i.e. Ramakhtiyar Dandotiya (PW1) who has sustained bullet injury in the same incident and Raghuveer who is father of Ramakhtiyar Dandoitya died in the incident. Ramakhtiyar Dandotiya is an injured witness, therefore, his presence on the spot cannot be doubted.

The Hon''ble Supreme Court in the case of Vijay Shankar Shinde and Others Vs. State of Maharashtra, has held that "injured person cannot spare the real accused. The Hon''ble Supreme Court further in the case of Chandra Mohan Tiwari and another Vs. State of Madhya Pradesh, has held that "parents of the victim would be least disposed to falsely implicate in lieu of real culprit". The Hon''ble Supreme Court also in the case Rajendra Singh Vs. Surajbhan 2009 Cr.L.J. 1561 has held that ''''related witness ensures that real culprits are punished''''.

The Hon''ble Supreme Court in the case of State of Maharashtra Vs. Tulshiram Bhanudas Kamble and Others, has held as under:-

though it is true that it is not necessary to invariably accept the version of injured witness but it is well settled that great weight has to be given to the testimony of injured witnesses.

[Equivalent:- State of U.P. Vs. Naresh and Others,

Ramakhtiyar Dandotiya (PW1) who is an injured witness, in para 24 of his cross-examination, stated that at the time of incident his uncle, aunt, mother, brother and sister cried. At the time of incident when he shouted, person from nighbouring were came out but no one turned up on the spot and thereafter they went away. Therefore, it was very difficult to police to get independent witness of murder because nobody wants to become witness in a dispute of the village. Also in para 51 of his cross-examination Ramakhtiyar Dandotiya clearly stated that so long as firing had been continuing, nobody of the village came out from their house. Therefore, from this statement, it is clear that the witnesses could have been eye-witnessed, did not turn up on the spot to see that what is happening there on account of fear.

Recently, the Hon''ble Supreme Court in the case Kathi Bharat Vajsur and Another Vs. State of Gujarat, while relying on Appabhai and Another Vs. State of Gujarat, has held as under:-

Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, tows or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness, must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The Court, however, must bear in mind that witness to a serious crime may not react in a normal manner.

A great emphasis has been led on the point that Ramakhtiyar Dandotiya (PW1) has stated that co-accused Om Prakash inflicted lathi blows on back and head of deceased Raghuveer, which is not found to be corroborated by medical evidence and the learned trial Court in para 19 of its judgment found that the statement of Ramakhtiyar Dandotiya regarding co-accused Om Prakash being armed with lathi and inflicted lathi blows on the head and back of deceased Raghuveer, is not proved and this version of the Ramakhtiyar Dandotiya is found to be exaggeration. But, on this ground alone, the other part of reliable evidence of Ramakhtiyar Dandotiya cannot be doubted because the Hon''ble Supreme Court in the case of Sukhdev Yadav and Others Vs. State of Bihar, has held as under:-

It is indeed necessary however to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment. Sometime there would be deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness box detailed out an exaggerated account.

The Hon''ble Supreme Court further in the case of Sucha Singh and Another Vs. State of Punjab, in paragraph 51 has held as under:-

Even if major portion of the evidence is found to be deficient in case residue is sufficient to prove guilt of the accused. It is the duty of the Court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from beginning to an end with maxim falsus in uno, falsus in omnibus has no application in India and a witness cannot be branded as a liar. Witnesses just cannot held in giving embroidery two stories, however true in the main.

A great emphasis has also been led on the point that Ramakhtiyar Dandotiya (PW1) in his Dying Declaration Ex. D1 recorded in the hospital. Nature of the weapons of the offence carried by the accused persons, has not been disclosed. This aspect has been dealt by learned trial Court at length in para 18 of its judgment by holding that while recording dying declaration of Ramakhtiyar Dandotiya, Ex. D1 the Additional Tahsildar had asked the question that what has happened with him and therefore, Ramakhtiyar Dandotiya answered as per question. The learned trial Court further observed that it is true that in Dying Declaration Ex. D1 what type of guns were used, no information was given because in the police statement Ex. D2 the weapons are clearly mentioned. The learned trial Court rightly observed that the Additional Tahsildar while recording dying declaration has confined that what had happened with Ramakhtiyar Dandotiya. Therefore, Ramakhtiyar Dandotiya did not tell anything about the death of deceased Raghuveer. Ramakhtiyar Dandotiya in Dehati Nalishi Ex. P1 has given a detailed version of the incident. Therefore, if Ramakhtiyar Dandotiya did not tell anything about death of Raghuveer Singh and about weapon in his Dying Declaration Ex. D1, his version cannot be doubted because the said incident had happened at the house of Ramakhtiyar Dandotiya. Therefore, his relatives could be eye-witnessed to the incident because the incident had happened in the month of January in the early hours of the day at around 6:00-7:00 O''clock in the morning. Therefore, only family members could be natural witnesses to the incident.

A great emphasis has also been led on the point that in the medical opinion, it is mentioned that firearms were used from the distance of more than 12 feet and tattooing marks were not found. Ramakhtiyar Dandotiya (P.W. 1) in his statement before the Court has stated that accused Ramlakhan fired at him by a 12 bore gun and accused Rajkumar fired from his 12 bore gun which hit his chin. Thereafter, they fired at his father Raghuveer and this witness also ran towards his agriculture field. Since he was an injured witness, having bullet injuries, therefore, he could not have noticed that from which distance the accused fired at which person. Therefore, distance from which the accused fired, cannot be mathematically calculated by oral evidence because the villagers are not accurate about the distance.

The appreciation of evidence of Manoj Dandotiya (PW2) by the learned trial Court in para 25 of its judgment, is found to be reasonable and appears to be correct that Manoj Dandotiya (PW2) when reached on the spot he saw the accused persons had been firing and thereafter he surreptitiously went away to give the information to his uncle Balkishan and then Balkishan gave information on telephone to Police Civil Line, Morena which is Ex. P19. Therefore, the evidence of Manoj Dandotiya (PW2) was partly believed and this inference of the learned trial Court, does not call for any interference.

The learned trial Court in para 27 of its judgment observed that Harkishan (PW4) had given an exaggerated version in his statement before the Court because he stated that deceased Raghuveer was sustained gunshot injuries caused by the accused persons from two to three hands away, which is not found corroborated by medical evidence of Dr. S.C. Agrawal (PW7) because as per medical evidence the gunshot fires were more than 12 feet away. Therefore, the learned trial Court in para 29 of its judgment observed that evidence of Manoj (PW2) and Harkishan (PW4) neither wholly reliable nor unreliable because their evidence does not corroborate with medical evidence.

Regarding the charge against accused person u/s 307 of IPC is concerned, the learned trial Court with regard to injuries caused to complainant-injured Ramakhtiyar Dandotiya (PW1) in para 13 of its judgment observed that the firearm injuries caused to Ramakhtiyar Dandotiya, appears to be simple but from the very beginning, the intention of accused persons was to murder Ramakhtiyar Dandotiya in pursuance of common object.

Dr. S.C. Agrawal (PW7) opined in the MLC report Ex. P16 of injured Ramakhtiyar Dandotiya (PW1) that injury No. 1 is caused by firearm weapon and injury No. 2 is caused by hard and blunt object. All the injuries are simple in nature. Injury No. 1 is on the right side of chin and second injury is four punctured wounds over right side of chest. One injury is on the chest, which is vital part of the body, having been caused by firearm.

The Hon''ble Supreme Court in the case of State of Rajasthan Vs. Dhool Singh, has observed as under:-

a number of injuries is not always the determining factor in ascertaining the intention. It is the nature of injury, the part of body where it is caused, the weapon used in causing such injury which is indicator of the facts whether the accused caused death of the deceased with intention of causing death or not.

One injury of injured Ramakhtiyar Dandotiya (PW1) is on the vital part of his chest. The nature of weapon is firearm. In the same incident, another person, namely, Raghuveer has lost his life. Number of fires were made from firearms on the spot which goes to show that intention of the accused was from the very beginning to cause death of Ramakhtiyar Dandotiya (PW1) as well as deceased Raghuveer. Therefore, merely on account of simple injuries received by Ramakhtiyar Dandotiya (PW1) does not mean that offence u/s 307 of IPC is not proved. Nature of weapon and the fact that injuries have been caused by firearms, go to show that offence u/s 307 read with Section 149 of IPC is validly proved by the learned trial Court and it does not call for any interference.

As per evidence on record, all the accused persons armed with firearms came on the spot and opened fires, as a result of which Raghuveer died on the spot and other persons injured in the incident and went back from the place of occurrence. All these factors go to show that common object of accused persons assembly was to cause death of Raghuveer. Intention did not happen on the spur of the moment but was pre-planned. Therefore, the conduct of the accused persons just before the incident, at the time of incident and just after incident, is relevant factor to judge common object of the assembly. Indeed, there are two unidentified persons of the assembly but since they have not been identified. Therefore, commission of offence of remaining accused under Sections 302 /149, 307 /149 of IPC is valid and proper because number of accused persons are five.

So far as offence under Arms Act is concerned, the learned trial Court rightly held that from the evidence of Lalaram (PW8), the seizure of firearms and cartridges become suspicious. The firearm was seized on 29-04-2000 vide seizure memo Ex. P30 from the possession of accused Rajkumar. The witnesses are Constable Shivcharan Singh and Head Constable Ramdas. The seizure memo does not show that it was sealed on the spot. Lalaram (PW8) who is armorer, has stated in para 3 of his cross-examination that Ex. P18, D-D portion is rightly written as after testing he had sent "Katta" and cartridges without sealing it in open condition along with the testing report. The learned trial Court rightly held that reasonable suspicion has arisen in this case from the evidence of Lalaram (PW8) and therefore, rightly acquitted co-accused Rajkumar from the offence u/s 25(1-B)(A) of the Arms Act.

The Hon''ble Supreme Court in the case of Ramesh Harijan Vs. State of U.P., has held as under:-

In such a case the paramount of the Court is to ensure that miscarriage of justice is avoided. The benefit of doubt particularly in every case may not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense.

From the aforesaid evidence, in our opinion, there is no merit in both the appeals. They are hereby dismissed. The bail bond and surety of the appellant who is on bail shall stand cancelled. He is directed to surrender himself before the trial Court to undergo the remaining part of jail sentence.