State of Madhya Pradesh vs Preetam Singh

Ashok Kumar Joshi, J.

By this appeal filed u/s. 378 of the Cr.P.C, appellant/State of M.P has challenged acquittal recorded by the Additional Sessions Judge (Special Judge),

Datia vide his judgment dated 17.10. 2007 passed in S.T. No. 88/2006, whereby each of the present respondents was acquitted from the charge of

Sec. 147, 148, 302 or 302/149, 307 or 307/149, 323 or 323/149 and 201 of the IPC.

It would be significant to mention here that the names of original respondent no. 1 Chirmoli alias Ramashankar Dangi, orginal respondent no. 5

Asharam Dangi and orginal respondent no. 11 Omprakash Dangi, were deleted during pendency of this Criminal Appeal due to death of above

mentioned original respondents.

Undisputed facts are that Mohar Singh (PW-6) and Ram Singh (PW-8) are real brothers of the relating deceased Arvind alias Kakka Dangi and

Lala Ram (PW-7) was father of the deceased and Ramjanki (PW-19) and Geeta (PW-22) are sisters-in-law (Bhabhi of the deceased) and child

witness Anil (PW-20) is nephew of the deceased.

Prosecution's case in brief is that complainant Ram Singh Dangi (PW-8) on 11.5. 2006 at 8=00 am lodged dehati nalisi (Ex. P-24) in village Tedout

to the effect that on the same day in morning at about 6=30 am, when he was returning from fields after answering the call of nature towards village

Tedout, then at the periphery of the village, he saw that his brother Arvind alias Kakku Dangi was going for search of labours, and in the way, some

verbal altercations occurred between Arvind and Chirmoli alias Uma Shankar Dangi, which could not be heard by the complainant. Thereafter,

Umashankar fired from licensed 12 bore double barrel gun which hit on the chest of Arvind and after receiving gun shot injury, Arvind fell down.

Complainant proceeded to lift his brother Arvind then respondent Preetam fired a shot by his .315 bore country made pistol over the complainant, but

luckily, the complainant escaped from the fired gunshot, thereafter respondent Omprakash also fired a shot from his 12 bore single barrel gun over

complainant, but luckily complainant again escaped. At that time respondent Raju was having a country made pistol, Bhagwan Singh Dangi was armed

with Barchi and respondent Sukku was armed with Farsa and all the respondents with the above mentioned deceased respondents, jointly came on the

scene of occurrence of incident and due to prior enmity shot at complainant's brother deceased Arvind, and at that time sister-in-law (Bhabhi)

Ramjanki and wife Geeta of complainant reached on spot and tried to lift the body of Arvind, then respondents gave beating to Ramjanki and Geeta by

butts of their guns and thereby Ramjanki and Geeta received injuries. In dehati nalisi (Ex. P-24) it was also mentioned that Chirmoli alias

Ramashnakar Dangi, Preetam, Omprakash, Asharam, Bhagwan Singh and Sukku with other 5 to 6 persons dragged body of deceased Arvind into

their compound (bada) and set on fire the dead body of deceased Arvind. Thereafter, complainant ran towards police station for reporting the matter.

At the time of incident complainant's father Lala Ram (PW-7), brother Mohar Singh (PW-6) and some other persons of the village also came on the

spot who also witnessed the incident but as the named seven accused persons in dehati nalisi and their companions were armed with deadly weapons,

they could not save Arvind. Dehati nalisi (Ex. P-24) was recorded by SHO, Gondan R.K. Sharma, which was later on sent to Police Station Gondan

through constable Kanta Prasad for lodging of FIR and on the basis of dehati nalisi, FIR was registered at Police Station, Gondan and relating crime

was registered.

Investigating Officer R.K. Sharma (PW-18) on 11.5. 2006 at 8=40 am prepared spot map (Ex. P-21) at the instance of complainant Ram Singh

(PW-8) and after issuing safina form (Ex. P-41), inquest memo (Ex. P-26) was prepared and dead body of Arvind was sent to relating hospital for

postmortem. Injured Ramjanki and Geeta were sent to relating hospital for their medical examination. During investigation, after arrest of the relating

accused persons, on the basis of disclosure statement of deceased respondent Chirmoli alias Ramashankar a country made 12 bore pistol was seized

from deceased respondent Chirmoli alias Ramashankar and similarly on the basis of disclosure statement of respondent Preetam Singh a country

made pistol of .315 bore was seized from Preetam. During investigation, an Axe, Barchi, Farsa and some other materials were also seized. After

completing the formalities of the investigation, charge-sheet, mentioning one of the accused persons Omprakash as a absconder, was filed before the

court of JMFC, Bhander, who committed arising criminal case to Sessions Judge, Datia who transferred the Sessions Trial to above mentioned trial

court.

The trial court framed charges for offences punishable u/Ss. 147, 148, 302 or 302/149, 307 or 307/149, 323 or 323/149, 201 of the IPC and Sec. 25

and 27 of the Arms Act against deceased respondents Chirmoli alias Ramashankar and present respondent Preetam Singh and trial court framed

charges u/s. 147, 148, 302 or 302/149, 307 or 307/149, 323 or 323/149 and 201 of the IPC against each of the remaining tried accused person. Relating

charges were denied by each of the tried accused persons.

Before trial court twenty two prosecution witnesses were examined. It was specific defence of respondent Sukku alias Arvind Dangi and Dhop

alias Ramkishore Dangi that they were not present in village Tedout on the date of incident and on this point defence witness no. 1 Veer Singh was

examined. The trial court after hearing, acquitted each tried accused of charges framed against him. Hence, this appeal against acquittal.

The public prosecutor appearing on behalf of appellant/State of M.P. Contends that prosecution's case was established by the evidence of injured

witnesses Ramjanki (PW-19, Geeta (PW-22) and Anil (PW-20) and evidence of Ramjanki and Geeta was medically corroborated that they received

injuries in the incident, but the trial court disbelieved the evidence of these eye witnesses only because some close relatives of deceased, including

complainant turned hostile. It is also argued that the trial court gave unnecessary importance to the minor contradictions and omissions appearing from

evidence of prosecution witnesses as when such large number of accused persons were giving beating to deceased, then it is not possible for any eye

witness to properly depose regarding specific role of each accused. Therefore, it is prayed that appeal be allowed and each present respondent be

convicted and properly sentenced.

Per contra, appearing counsel for the respondents contends that the trial court has properly and legally analyzed and appreciated the entire evidence

available on record and even the father of the deceased and real brothers of the deceased, including complainant had not supported prosecution

version in their evidence given before the trial court and the evidence of alleged eye witnesses Ramjanki (PW-19), Geeta (PW-22) and Anil (PW-20)

is contradicted by evidence of their close relatives and the evidence of each eye witness was having self- contradictory and inconsistent facts, and

it is clear that Geeta (PW-22), Ramjanki (PW-19) and Anil (PW-20) were planted eye witnesses. It is argued that the learned trial court rightly

discarded the evidence of alleged eye-witnesses and did not err in acquitting each tried accused person and hence dismissal of appeal is prayed.

10.  It is clear from the evidence of Dr. J.N. Soni (PW-21) and his P.M. report (Ex. P-44), who conducted P.M. of deceased Arvind alias

Kakku Dangi aged about 25 years on 12.5. 2006  at J.A. Hospital Groups, Gwalior that at the time of starting of P.M at 3:30 pm, he found

that the dead body was burnt and charred and face, neck, lower part of the abdomen, both hands were not having skin, but the chest and upper part of

the abdomen were having skin and muscles and the bones of both arms were broken and male organs of the deceased were visible and both legs

were burnt and burnt bones of legs were visible and from lower part of the abdomen, intestines were visible and on chest, at the level of 3rd and 4th

ribs, about 4 cm away from mid line there was a hole of size of 6x4 cms and in this part rib was missing and left lung and heart, right lung and liver

were ruptured and on right side of the chest, at the level of 7th and 8th rib in an area of 4x4 cms on left side, part of the rib was missing and in

dissection of the dead body, a fracture was found on the bones situated over left eye which was extending towards posterior side and Dr. Soni also

deposed that in his presence, radio-logical examination of the dead body was conducted and in X-ray, multiple radio opaque shadows of metallic

density were found in the chest and abdomen area, which was indicating that deceased received ante-mortm firearm injures and his dead-body was

burnt after his death and he opined that deceased died within 24 to 48 hours from starting of P.M and the nature of death was homicidal.

In cross-examination, Dr. Soni deposed that as the dead body was burnt no blackening or tattooing could be found on the dead body but on chest

of the deceased a hole on left side and a hole on right side was found by him, therefore he deposed that deceased received fire arm injuries.

It is proved from medical evidence, and even by evidence of some other prosecution witnesses that deceased Arvind alias Kakku Dangi, resident

of village Tedout met with homicidal death caused by firearm injuries and after his death his dead body was burnt.

Alleged eye-witnesses complainant Ram Singh (PW-8), his brother Mohar Singh (PW-6) their father Lala Ram (PW-7) have not supported

prosecution's case in relation to tried accused persons, but their other family members Ramjanki (PW-19), Geeta (PW-22) and child witness Anil

(PW-20) deposed as eye witnesses in favour of prosecution's case.

Complainant Ram Singh (PW-8), his brother Mohar Singh (PW-6) their father Lala Ram (PW-7) deposed against the prosecution's case that

incident was caused by some unknown persons. Complainant Ram Singh (PW-8) and his father Lala Ram (PW-7) deposed before the trial court that

when they reached on scene of occurrence, they saw some persons who have covered their faces by cloth and some of them were having guns, and

they reached on scene of occurrence only after hearing the sound of firing by guns.

Complainant Ram Singh (PW-8), his real brother Mohar Singh (PW-6) and his father Lala Ram (PW-7) were declared hostile by the prosecution

as they have not supported the prosecution's case.

Complainant Ram Singh (PW-8) deposed that on the date of incident, in the morning, at about 6:30 am, after answering the call of nature in fields,

when he was returning towards village, then at Tiraha, he saw that dead body of his brother Arvind was lying on the earth and blood was oozing out

from his chest and nearby some persons were standing covering their faces having guns and at that time his father Lala Ram (PW-7) and Sister-in-

law (Bhabhi) Ramjanki (PW-19) and his wife Geeta (PW-22) came on the spot and ran to save Arvind, then unknown accused persons gave beating

to Geeta (PW-22) and Ramjanki (PW-19) by butts of their guns and then unknown persons also fired on complainant, but luckily he escaped,

thereafter unknown persons took the dead body in bada (compound) of Omprakash and they kept dead body over wood and thereafter burnt the dead

body, then with his nephew Ballu he ran towards Police Station, Gondan and gave intimation about the incident at Police Station and police came at the

scene of occurrence with him and dehati nalisi (Ex. P-24) was recorded at the scene of occurrence and spot map (Ex. P-21) and Safina form (Ex. P-

41) were also signed by him. In cross-examination ( para-6) complainant clearly admitted that he did not see any accused on the scene of occurrence

and dehati nalisi (Ex. P-24) was not read over to him before taking his thumb impression over it.

It is clear that complainant Ram Singh (PW-8) has not deposed anything against any of the present respondents or deceased respondents.

Mohar Singh (PW-6) deposed that on the date of incident at 6:30 am he was at his house and heard sound of firing a shot by gun, but after hearing

the sound of firing, he did not go to the scene of occurrence, and later on, he heard that some unknown persons came in front his house and shot dead

his brother Arvind and burnt his dead body, but he clearly deposed in his examination-in-chief that he did not see the incident. Mohar Singh (PW-6)

clearly admitted in his cross-examination (para-5) that in the morning on the date of incident he with his brother Ram Singh (PW-8), father Lala Ram

(PW-7), Bhabhi Ramjanki (PW-19) and Geeta (PW-22) were at their house, then another person from the village came to their house and intimated

them that burnt dead body of his brother Arvind is lying nearer to bada (compound) of Omprakash, then they went there and saw the burnt dead body,

but at that time they did not see any accused.

Lala Ram (PW-7) deposed that at the time of incident in morning he was at his house and his son Arvind had gone to Harijan Mohalla for

engaging labours, but when he reached to Tigela of village, then he heard sound of firing by firearm, thereafter he with Ramjanaki (PW-19) and Geeta

(PW-22) from their house ran towards Tigela and saw that Arvind was lying on earth and Arvind was having fire arm injuries over his chest and blood

was oozing out and at that time his another son Ram Singh (PW-8) was coming towards village and when he tried to save Arvind then some unknown

persons who have covered their faces were firing from guns and they were shouting that to destroy the evidence, the dead body should be burnt, then

his family members Ramjanki (PW-19) and Geeta (PW-22) tried to save the dead body of Arvind from burning, then unknown persons gave beating

to Ramjanki (PW-19) and Geeta (PW-22) and thereafter those unknown persons dragged the dead body of Arvind and burnt after keeping it on

woods. In cross-examination Lala Ram (PW-7) also admitted that on the date of incident in morning, he was at his house with his sons Ram Singh and

Mohar Singh and other family members Ramjanki and Geeta, then a person of his village intimated them that burnt dead body of his son Arvind lying

in bada (compound) of Om Prakash, thereafter they saw the dead body of Arvind, but till that time unknown persons who caused incident had run

away and they did not see any accused. Both the real brothers of deceased and father of the deceased were declared hostile and questions of the

nature of cross-examination were put to them by the prosecution, but it could not yield any benefit to the prosecution.

Another eye witness Balveer (PW-16) deposed that on the date of incident in the morning at 6=00 am, when he was in village Tedout, at his

house, then he heard sound of shot fired by gun then he came out from his house, then saw Arvind alias Kakka was lying nearer to Tigela and he was

having wound over his chest and died and at that time at some distance from deceased Arvind about 10-12 persons were firing shots from their fire-

arms, but they all were unknown to him and at the same time his uncle complainant Ram Singh (PW-8) came there then he took Ram Singh (PW-8)

on his motorcycle to police station Gondan. Balveer also deposed that when Ram Singh (PW-8) came on spot, then unknown accused persons fired at

complainant and thereafter his aunts Ramjanki (PW-19) and Geeta (PW-22) also came there, but he clearly deposed that on the scene of occurrence

he did not see any of the tried accused persons, as unknown accused persons have covered their faces. Balveer (PW-16) was also declared hostile.

In cross-examination Balveer deposed that after his reaching on spot, his aunts Geeta (PW-22) and Ramjanki (PW-19) came there, but did not know

how Ramjanki (PW-19) and Geeta (PW-22) received injuries. Therefore, it is clear that like complainant Ram Singh (PW-8), Mohar Singh (PW-6),

Lala Ram (PW-7), Balveer (PW-16) has also not supported prosecution's case regarding present respondents and other acquitted accused persons.

At the time of recording of evidence of Anil (PW-20), he was about 13 years old and his statement was recorded by the trial court without

administering him oath. Anil (PW-20) deposed that on the date of incident at about 6 :00 am, when he was returning to village after answering the call

of nature and when he reached to Tigela, where three paths of road intercepts, then he saw that all the present accused persons at the time of

recording of his evidence before the trial court and absconder accused Omprakash shot at Arvind, which hit the neck of Arvind and all the accused

persons have fired shots from firearms, but in next para he deposed that Chirmoli was having a double barel gun, Raju was having a country made

pistol and absconding accused Omprakash was having a single barrel gun, but respondents Sukku was having a Farsa and thereafter accused persons

dragged the dead body of Arvind to compound (bada) of Chirmoli and there accused persons poured kerosene and in that bada over Chirmoli's wood,

the dead body of Arvind was burnt by accused persons. Anil (PW-20) deposed that first shot by firearm was fired by Omprakash which caused injury

on neck of Arvind and his mother Ramjanaki and aunt Geeta tried to save Arvind then Chirmoli, Raju, Sukku, Prakash, Bade Bhai inflicted injuries by

buts of their guns to his mother Ramjanki (PW-19) and aunt Geeta (PW-22) but in cross-examination (para-4) Anil (PW-20) stated that Arvind

received 7-8 gunshot wounds. It is clear that Anil has given exaggerated statement before the trial court which is falsified by medical evidence and he

also stated that all tried accused persons fired at Arvind, which is even not supported by his mother Ramjanki (PW-19) and aunt Geeta (PW-22),

therefore it is clear that the trial court did not err in disbelieving statement of child witness Anil (PW-20).

Ramjanki (PW-19) deposed that at the time of incident he was brooming in front of her house,then she saw that her brother-in-law (Devar) Arvind

was caught hold by Prakash, Chirmoli, Preetam and Pratap and at that time Prakash was having pachfera gun and Chirmoli was having a double

barrel gun, Preetam was having a single barrel gun and Pratap was having a country made pistol. Contrary to her son Anil (PW-20), Ramjanki (PW-

19) deposed that firstly Prakash fired from his country made pistol, which hit on the chest of Arvind and after hearing the sound of firing, she reached

on spot and after hearing the sound of gunshot her sister-in-law Geeta (PW-22) also came there and then she fell down on Arvind to save him, then

Chirmoli stated that Arvind be burnt and thereafter pyre was prepared and after pouring kerosene dead body of Arvind was burnt. Ramjanki (PW-19)

deposed that when pyre was burning then she dragged the fire by an iron rod and Geeta also dragged fire from pyre and Chirmoli inflicted injuries

over her shoulder by butt of his gun and Preetam pushed her by his hands and later on she was medically examined. She also deposed that she heard

sound of two shots fired from gun, but in cross-examination (para 6) Ramjanki clearly deposed that in the morning at about 5:00 am, pyre of Arvind

was being burnt at Tigela and she admitted in para-8 that her husband Naththu was facing externment (zilabadar) by government and his devar

(Arvind), the deceased was also regularly going to relating police station for marking his presence.

In cross-examination ( para-11) Ramjanki clearly deposed that on the date of incident at 6:00 pm when she was brooming then any person of

village intimated that the dead body of Arvind is lying on Tigela and before her reaching on spot Arvind has received two gun shot injuries, but when

she reached on spot, then Chirmoli, Preetam, Pratap and Raju were standing at the scene of occurrence and she also deposed that respondent

Prakash did not fire a shot in his presence, but the second shot was fired by Chirmoli, but in para-12 she reiterated that both the shots received by

Arvind before she reached. She also deposed in para-12 that only Arvind received injury in the incident, but in para-13 she deposed that about 10 to 15

shots were fired from guns and Chirmoli was making air-fires. In para-14 she deposed that she and her devrani Geeta took out the dead body from

pyre and thus her and Geeta's hands were also burnt. Above mentioned evidence is falsified and contradicted by medical evidence available on

record. She admitted in para-15 that there was existing enmity between families of respondents and complainant for last 20 years. It is clear from the

total evidence of Ramjanki (PW-19) that her falsehood is unlimited and she had clearly admitted that in the morning at 5 am at Tigela pyre of her

devar Arvind was burning, therefore, her evidence regarding eye witnessing the incident by her at 6:00 am is totally unnatural and unbelievable and

even not supported by her close relatives Lala Ram (PW-7), Mohar (PW-6) and Complainant Ram Singh (PW-8).

Similarly Geeta w/o Ram Singh (PW-22) deposed that on the date of incident in morning at 6:00 am, she was milking from cow and at that time

Arvind had gone in search of labours for Jatav Mohalla and her husband had gone for latrine outside the village and when Arvind returned back at

Tigela, then Chirmoli fired shot from his gun and thereafter respondent Prakash fired four shots from his country made pistol and her brother-in-law

received shots made by respondent Preetam and Arvind also received shot fired by Chirmoli over his neck and the shots fired by respondent Prakash

hit the abdomen and waist of Arvind and Preetam's shot inflicted injury over right thigh of Arvind, and when the firing was continued from firearms,

then she saw that Arvind was lying on ground, but at that time he was lying and blood was oozing out from his injuries. It is clear from the medical

evidence that Arvind had not received more than two gunshot injuries on his chest only, therefore it is clear that the falsehood introduced by Geeta

(PW-7) in her evidence is also unlimited and like Ramjanki (PW-19) her evidence also appears to be situated at a maximum possible distance from the

truth. Geeta also deposed that she received injuries at her both thighs and her waist, but at this point the evidence is also falsified by evidence of Dr.

Ashok Singh (PW-2), who medically examined Geeta on 11.5. 2006 and recorded her MLC (Ex. P-3). In Para-6 Geeta deposed that Arvind received

five shots fired by firearms in her presence. Her evidence is also not corroborated by the medical evidence given by Dr. J.N. Soni (PW-21) who

conducted postmortem of the deceased Arvind and her evidence is also not corroborated even by her husband complainant Ram Singh (PW-8),

father-in-law Lala Ram (PW-7), Mohar Singh (PW-6) and Balveer (PW-16).

Admittedly, there was existing enmity between families of complainant and respondent, though even complainant Ram Singh (PW-8) has not

supported prosecution version and his real brother Mohar Singh (PW-6), father Lala Ram (PW-7) and Balveer (PW-16) have also not supported

prosecution version, though their family members Ramjanki (PW-19), Geeta (PW-22) eye witness Anil (PW-20) have supported prosecution's case

against the present respondents and three deceased respondents, but it is clear that evidence of Ramjanki (PW-19), Geeta (PW-22) and Anil (PW-20)

is totally unnatural and unbelievable and even contradicted by medical evidence and their close relatives.

It is clear from the evidence of Dr. Ashok Singh (PW-2) and his recorded MLC (Ex. P-3) that on the date of incident at PHC Indergarh, on

examining Ramjanki (PW-19), he found a contusion of size 8x6 cm over her left scapular region, one contusion of size 8x2 cms over his right scapular

region and another contusion of size 6x2 cms over her right scapular region. All these injuries were appearing to be caused by hard and blunt object

and were of simple nature and appearing to be caused within 24 hours from his examination. Similarly, it is clear from evidence of Dr. Ashok Singh

and his recorded MLC (Ex. P-3) that on the date of incident he found an abrasion of size 2x1/2 Cms over left wrist and a contusion, size 3x2 cms on

right side of abdomen and another contusion of size 3x3 cms on left side of waist and all the three injuries to Geeta were appearing to be caused by

hard and blunt object and were of simple nature and appearing to be caused within 24 hours from his examination. Dr. Ashok Singh admitted in his

cross-examination that all the injuries found on the body of prosecution witnesses Ramjanki (PW-19) and Geeta (PW-22) could be caused due to

falling during running. It is true that on the date of incident above mentioned injuries were found on the person of Ramjanki (PW-19) and Geeta (PW-

22), but it is clear after perusal of their total evidence that both of them introduced unbelievable falsehood in their evidence regarding incident and

Ramjanki (PW-19) clearly deposed in cross-examination that pyre (chitah) of Arvind was burning in the same morning at 5:00 am and hence their total

evidence, which is even contradicted by medical evidence and evidence of their close relatives, does not inspire confidence and in view of total facts

and circumstances, no reliance could be placed on such infirm and weak evidence.

In our considered opinion the appeal filed by the State of M.P. against the acquittal of present respondents is totally merit-less.

Consequently, the appeal filed by the State is hereby dismissed and the acquittal of present respondents as recorded by the trial court is affirmed.

The bail bonds of present respondents are discharged and now they are not required to appear before Registry of this court in relation to this appeal

and as at the time of passing of impugned judgment by the trial court, accused Omprakash was absconding, hence no order regarding disposal of

seized materials was passed by the trial court. With a copy of this judgme nt, the record of the trial court be immediately sent back to it.