1

CRA Nos.849/2008 and 962/2008

HIGH COURT OF MADHYA PRADESH

BENCH AT INDORE

(DIVISION BENCH: HON. MR. JUSTICE VIVEK RUSIA &

HON. MR. JUSTICE SHAILENDRA SHUKLA)

Case No. CRA No.849/2008 &

CRA No.962/2008

Parties name :CRA No.849/2008

Bhagwan Singh S/o Bherusingh and

others

Versus

State of Madhya Pradesh

&

(CRA No.962/2008)

Sohan Singh S/o Ragunath Singh and

Another

Versus

State of Madhya Pradesh

Date of Judgement :24.09.2021

Bench constituted of :Hon’ble Shri Justice Vive Rusia

Hon'ble Justice Shailendra Shukla

Judgement delivered by :Hon'ble Justice Shailendra Shukla

Whether approved for reporting:Yes

Name of counsels for the

parties

:Shri Virendra Sharma, learned counsel

for the appellants.

Ms. Mamta Shandilya, learned Govt.

Advocate for the non-applicant – State.

Law laid down :*Recording of Dying Declaration by

Investigating Officers- Held-

Regulation No.742 of M.P. Police

Regulation stipulating assessment of

condition of injured by Medical Officer

before recording such dying declaration

needs to be adhered to. Further, it should

also be explained as to why the service

of Magistrate could not be requisitioned

for recording of dying declaration

*Case involves allegations of

committing triple murder- Role of

Investigating Officer found to be

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CRA Nos.849/2008 and 962/2008

extremely unprofessional, with not only

major lapses but also indications of

actual concocted dying declaration –

Initiation of proceedings under M.P.

Civil Services (Pension) Rules 1976

recommended against Investigating

Officer.

Significant paragraph numbers :15, 16, 17, 18, 19, 26

(Vivek Rusia) (Shailendra Shukla)

Judge Judge

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CRA Nos.849/2008 and 962/2008

HIGH COURT OF MADHYA PRADESH

BENCH AT INDORE

(DIVISION BENCH: HON. MR. JUSTICE VIVEK RUSIA &

HON. MR. JUSTICE SHAILENDRA SHUKLA)

Criminal Appeal No.849 of 2008

1.Bhagwan Singh S/o Bherusingh, Age

55 years

Appellants

2.Balu Singh S/o Bhagwansingh, Age

22 years

3.Darbar Singh S/o Bherusingh, Age 37

years

4.Roop Singh S/o Bherusingh, Age 36

years

5.Bharat Singh S/o Meharbansingh,

Age 21 years

6.Dharmendra Singh S/o

Bhagwansingh, Age 20 years

7.Meharban Singh S/o Bherusingh, Age

60 years

All Occupation, Agriculture,

All R/o. Village Brahmmankheda,

P.S. & Tehsil, Mahidpur, District

Ujjain

Versus

1.State of Madhya Pradesh through

Police Station-HarijanThana, District

Ujjain (M.P.)

Respondent

&

Criminal Appeal No.962 of 2008

1.Sohan Singh S/o Ragunath Singh,

Age 22 years

Appellants

2.Ragunath Singh S/o Bhagwansingh,

Age 22 yearsAll Occupation,

Agriculture,

Both R/o. Village Brahmmankheda,

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CRA Nos.849/2008 and 962/2008

P.S &

Tehsil, Mahidpur, District Ujjain

Versus

1.State of Madhya Pradesh through

Police Station-SDOP, Mahidpur,

District Ujjain (M.P.)

Respondent

Shri Virendra Sharma, learned counsel for the appellants.

Ms. Mamta Shandilya, learned Govt. Advocate on behalf of

respondent/State.

J U D G M E N T

( Delivered on 24

th

September, 2021)

Per Shailendra Shukla, J.

Regard being had to the similitude of the FIR and factual

foundation, these appeals filed on behalf of the appellants were

analogously heard and decided by this common order.

1. These appeals have been filed under Section 374 of Cr.P.C

against the judgment dated 23.07.2008 passed by Special Judge, SC/ST

(P.A.) Act, Ujjain in Special S.T. No.261/2005 whereby the appellants

have been convicted under Section 148, 302/149 (three counts) of IPC

and sentenced to two years of R.I. with Rs.1,000/- fine with default

stipulation of six months of R.I. under Section 148 of IPC for each

count and with life imprisonment and fine of Rs.1,000/- with default

stipulations of six months of R.I. under Section 302/149 IPC for each

count.

2. The prosecution story succinctly speaking is that prior to the

incident dated 11.07.2005, there was a report filed by both the parties

(the appellants and the deceased) against each other on 08.07.2005.

The appellants had lodged the report against the deceased for

committing theft of their buffaloes and the deceased had lodged the

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CRA Nos.849/2008 and 962/2008

report alleging assault upon them by the appellant for alleged stolen of

their buffaloes. After lodging the FIR on 08.07.2005, the appellants had

thrown stones at the house of complainant (deceased) in the mid-night

between 10-11.07.2005. Due to this incident, deceased Ramchandra

alongwith his mother Nanibai set out for the police station for lodging

report in the morning of 11.07.2005 at about 7:30 to 8:00 AM. On the

way, they were surrounded by the appellants who were wielding

weapons such as Dhariya, swords and sticks and they started abusing

the deceased threatening him and they started assaulting him with these

weapons. The father of Ramchandra, Kachru, when came to intervene,

he was also assaulted by the appellants. The appellants, thereafter,

dragged Bhagirath (brother of the deceased Ramchandra) from his

house and assaulted him, they brought him up to “Bada” of Jaswant

Singh where, he died. Gattabai, wife of Ramchandra and other villages

arrived at the spot but the appellants threatened that anyone intervening

would be killed as well. Kachru and Bhagirath succumbed to their

injuries on the spot. Telephonic intimation was sent to the Police

Station – Mahidpur Road. The SHO of Police Station Mahidpur Road,

Prahalad Singh Tomar (PW.18) arrived on the spot and he found

Ramchandra to be still alive. He recorded the Dehati Nalichi Ex.P/7 on

the basis of statements made by Ramchandra and then recorded the

dying declaration Ex.P/10 on the spot. Ramchandra was sent to PHC,

Mahidpur Road, but succumbed on the way to hospital. Prahalad

Singh Tomar (PW.18), drew Safeena form and Naksha Panchyatnama

of the bodies of Kachru and Bhagirath and their bodies were sent to the

Civil Hospital for conducting post-mortem. The Safina form of

deceased Ramchandra was drawn in Mahidpur Civil Hospital, his post-

mortem was also got conducted. On the basis of Dehati Nalichi, FIR

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CRA Nos.849/2008 and 962/2008

was lodged, investigation was initiated, spot map Ex.P/57 was drawn,

the Patwari drew another map, blood stained soil and plain soil were

seized, the shoes of Ramchandra and Bhagirath were seized from the

spot, some stones were also seized near the spot, blood stained clothes

of the deceased were seized and memo of appellants were recorded

from Ex.P/32 to Ex.P/38, sword was seized from Sohan Singh, Dhariya

(sharp edge weapon) was seized from appellant Roopsingh and from

rest of the appellants, sticks were seized. These seizure memos are

Ex.P/37 to Ex.P/38. The seized items were sent to FSL from where the

report was obtained. After recording the statements of the witnesses

and rest of the investigation, charge-sheet was filed before the JMFC

who committed the matter to the Special Judge, SC/ST (P.A.) Act.

3. Learned Special Judge has framed charges under Section 148

and 302 of IPC and in alternate 302/149 and 506 of IPC and under

Sections 3, 2 and 5 of SC/ST (P.A.) Act. The appellants abjured their

guilt and claimed innocence submitting that they have been falsely

implicated so as to illegally obtain compensation from the State

Government. No defense evidence has been led. The learned trial Court

examined 19 witnesses in all and by the impugned judgment, the trial

Court has acquitted the appellants from Section 506(2) of IPC and

Section 3, 2, 5 of SC/ST (P.A.) Act. The appellants have been

sentenced in the manner as already described.

4. In separate appeals which have been preferred, the appellants

have stated that the learned lower Court was wrong in drawing

unwarranted inferences, the FIR is delayed and dying declaration is not

reliable, the witnesses are not reliable as well and the ocular testimony

does not correspond with the medical testimony, there are serious

material omissions and contradictions in the statements of the

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CRA Nos.849/2008 and 962/2008

prosecution witnesses and on these grounds, they have sought to be

acquitted.

5. The question for consideration is whether in view of the

submissions made on behalf of the appellants, the appeals are liable to

be allowed and the appellants are entitled for acquittal?

6. Nanibai (PW.3) is the eye-witness who has stated that she is

mother of Ramchandra and Bhagirath and that Kachru was her

husband. She has stated that the appellant Bhagwan Singh had thrown

stones in the previous night under the influence of liquor. The witness

states that the appellants were nursing doubt against Ramchandra for

having released (stolen) their buffaloes and this was the reason that the

appellants had thrown stones. The witnesses states that she suffered

injuries on her head due to stone pelting. She further states that, she

alongwith Ramchandra set out towards Mahidpur Road Police Station

for lodging the report. Accused Sohan Singh caught hold of

Ramchandra and all other accused persons started assaulting him. The

witness states that Roop Singh, Meharban and Bhagwan Singh were

wielding sharp edge Dhariya, Bharat Singh, Balu were wielding

swords whereas Darbar Singh and Rugnath Singh were wielding sticks.

Due to such assault, Ramchandra suffered injuries on his head, at that

time, the husband of the witness (Kachru), who had gone to attend the

call of nature, arrived and pleaded with folded hands, but the appellants

broke his hands in pieces with swords. The witness thereafter states

that the appellants did not injure anyone else but then immediately

states that Bhagirath had climbed on the terrace of his house, but the

appellants went after him and assaulted him and killed him. The

witness also states that the accused persons had severed the hands and

legs of Kachru and also his head was cut off. She also stated that the

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CRA Nos.849/2008 and 962/2008

neck of her son Bhagirath was also cut off. The witness states that after

the incident, she went to make telephone call to the Police Station

Petlawad and when police came, Ramchandra was still alive who

recorded his dying declaration whereas Kachru and Bhagirath were

already dead.

7. This witness thus states that five accused persons were

wielding sharp edge weapons and two others were wielding swords

and rest were assaulting with sticks. However, Investigating Officer,

R.S. Prajapati (PW.15) has stated that only sword has been sized from

the appellants Sohan Singh and one Dhariya has been seized from the

appellant Roopsingh as per their memos whereas sticks were seized

from the other appellants.

8. Further, contrary to the evidence of Nanibai (PW.3) that the

hands of Ramchandra were cut off in pieces with swords by the

appellants and the hands, legs and head of Kachru were also cut off by

the appellants. Dr. Dinesh Chandra Saxena (PW.4), who had conducted

the post-mortem of the deceased has not found any incised wound on

the person of any of the deceased. All the injuries on the person of the

deceased have been found to be lacerated wounds, contusions and

abrasions and has stated that all the injuries were caused by hard and

blunt objects. The Presiding Officers has although stated that some of

the injuries were so serious in nature that bones had come out which

may not occur due to merely lathi blows meaning thereby that such

injuries could have only been caused by more dangerous weapons such

as Dhariya and swords, however, this opinion of Presiding Officer is

not based on any admission on the part of doctor who conducted the

post-mortem examination. The doctor has in fact, not been asked any

such question and therefore, serious discrepancies in the statements of

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CRA Nos.849/2008 and 962/2008

Nanibai and the prosecution story regarding wielding of swords and

dhariya by numbers of accused persons and assaulting the deceased

with such danger weapons, is not found to be substantiated.

9. The evidence of Nanibai (PW.3) is also not found to be reliable

as in para no.12 of her cross-examination she admits the suggestions

that she was moving much behind Ramchandra and on hearing the

noise from the spot of incident, which was at a slope, she had gone to

call the Sarpanch and when she came back alongwith Sarpanch, she

had found her husband and son lying there. Due to this discrepancy,

she has again been re-examined and then she again states that the

incident had occurred in her presence only. The Presiding Officer in

para no.26 of the judgment has despite noticing the aforesaid

contradiction, considered the evidence to be reliable stating that the

contradiction in the evidence of witness giving rise to doubt on the

witness is only because of clever cross-examination. One fails to

understand as to what difference would it make whether contradiction

in statement is brought about by clever or otherwise manner of cross-

examination. The contradiction would be the contradiction in any case.

Thus, the evidence of Nanibai (PW.3) is not found to be reliable. Her

statements needs to be corroborated by other piece of evidence.

10.The other corroborative piece of evidence in this matter is

dying declaration of Ramchandra. The witness Pralad Singh Tomar

(PW.18) has stated that on 11.07.2005, while he was posted as SHO at

Police Station Mahidpur Road, he received an intimation on telephone

about the incident and he went to the spot. He found Ramchandra in

injured condition and on the basis of his statements, Dehati Nalishi

Ex.P/60 was recorded. Ramchandra has appended his thumb

impression on Ex.P/60. Thereafter, his dying declaration was recorded

10

CRA Nos.849/2008 and 962/2008

in the presence of witnesses. As per the witnesses, Ramchandra told

him names of the appellants who had injured him and he also told him

about the weapons with which he had been assaulted and narrated the

reason for which he has been assaulted. As per Ramchandra, the

accused had thrown stones in the night before and had been also

making allegations of committing theft of their buffaloes regarding

which, Ramchandra was going to lodge the report. As per the witness,

his dying declaration is recorded in question answer format and dying

declaration is Ex.P/10 on which the witness appended his signatures

from “A” to “A” part and Ramchandra has appended his thumb

impression.

11.In cross-examination, the witness states that he had gone to the

spot equipped with material for carrying out investigation. He has been

asked as to whether he had taken seal of SHO to the spot or not. He has

been asked which thumb impression of Ramchandra was used for

appending the impression. The witness does not remember this. The

witness in para no.17 of his cross-examination has been asked question

that in Dehati Nalishi, the thumb impression is made with blue ink, but

in dying declaration, the color of ink is different and has been asked

reason for the difference. The witness has stated that due to different

carbon papers, there is a difference in the color of the ink. This would

only mean that the source of ink on the thumb of Ramchandra was not

of Ink pad but of carbon papers. However, in Safina Form and Naksha

Panchnama drawn at the spot, thumb impressions of the witness have

been taken which depicts clearly that ink pad has been used meaning

thereby, that the ink pad was available at the spot and hence, what was

the need to use the carbon papers in respect of Ramchandra and why

two different carbon papers were used, is not explained by the witness.

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CRA Nos.849/2008 and 962/2008

The witness has stated that the ink pad was left behind at the police

station. However, that is also not reliable in view of the thumb

impression from ink pad found to be appended on Safina form and

other documents which were drawn at the spot only. Further, although

the time of dying declaration has been shown as at 11:15 AM but it has

not been shown that till what time, the dying declaration was recorded.

Whether Ramchandra was in fit condition to make statements has also

not been stated by way of making such a remark on Ex.P/10. When

such an information had been received in the police station, no effort

was made to contact any doctor or Magistrate requesting him to

accompany the spot. Ex.P/10 (dying declaration) does not bear the

presence of any such doctor or Magistrate. The witness Ishwar Singh

(PW.5) whose signatures are taken on the dying declaration has been

declared hostile and he denies that the dying declaration was recorded

in his presence. Another witness Swaroop (PW.6), who has also a

witness of dying declaration, has also turned hostile. He states that on

the spot, he had seen two persons lying dead and what was done by

T.I., was not known to him. He claims ignorance as to whether T.I. had

taken any statements and also states that the aforesaid statements were

not read over to him.

12.Learned counsel for the State has drawn court’s attention to the

last statement in cross-examination made by the witness (PW.6) who

has stated that two persons had been lying dead and the third person

whether was dead or alive, the witness does not know. Learned counsel

for the State submits that the witness straightway denies that

Ramchandra was dead and therefore, the prosecution story that

Ramchandra was alive stands substantiated.

13.The aforesaid submissions of learned counsel for the State

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CRA Nos.849/2008 and 962/2008

regarding reliability of evidence of Swaroop (PW.10) does not hold

water as can be seen. Swaroop has denied the recording of any

statement of the deceased in his presence and the statements which he

makes at the end of his deposition, only shows his ignorance as to

whether Ramchandra was alive or not.

14.Thus, the evidence of (PW.18) regarding dying declaration of

Ramchandra is not supported by independent witnesses, there is

already discrepancies found in his statements regarding use of carbon

papers and it has also not been found that there is no remark either of

doctor or any Magistrate on Ex.P/10 that deceased was in a fit

condition to state or to record dying declaration.

15.Following excerpt from Regulation No.742 of M.P. Police

Regulations, is relevant:

“a……….

b……..

c………..

If the attendance of a magistrate cannot be secured,

without the risk of such person’s death before his statement

can be recorded, the investigating officer will record the dying

declaration in accordance with the following instructions:-

(1) If possible, such person shall be examined by a

medical officer with a view to ascertaining that he is

sufficiently in possession of his reason to make a credible

statement.”

The Investigating Officer has not followed the procedural norms

as stipulated in the aforesaid regulation.

16.The Apex Court in the case of Munna Raja & Anr. vs. State of

M.P. AIR 1976 S.C. 2190 has held that where the Investigating Officer

himself recorded the statement of the victim who was in a precarious

condition if services of the Magistrate or doctor were not sought, such a

practice of recording by the Investigating Officer was improper and should

13

CRA Nos.849/2008 and 962/2008

not be encouraged. Para 11 of aforesaid judgment is relevant which reads as

under :-

“11. ..........But, if the investigating officer thought that Bahadur

Singh was in a precarious condition, he ought to have

requisitioned the services of a Magistrate for recording the

dying declaration. Investigating officers are naturally interested

in the success of the investigation and the practice of the

investigating officer himself recording a dying declaration

during the course of investigation ought not to be encouraged.

We have therefore excluded from our consideration the dying

declaration, Ex. P-2, recorded in the hospital.”

17.In Meera vs. State of Rajasthan, AIR 2004 S.C. 1879 it was laid down

that where the Investigating Officer had plenty of time and facility to procure

the services of the Magistrate for recording of a dying declaration, the dying

declaration recorded by the Magistrate should be excluded from

consideration. The relevant para reads as under:

“19…..There is another aspect of the matter for which there is no

explanation. This is not a case where, according to the prosecution,

the poison was administered to the deceased without her knowledge

or suspicious. If one is to believe the dying declaration one fails to

understand why the deceased would have swollen the poison given

by her mother-in-law when she had seen, as claimed by her, that

what was being given to her was poison meant for killing rats. All

these facts create a serious doubt in our mind as to whether the dying

declaration was really recorded in the manner alleged and also as to

the veracity and truthfulness of the said dying declaration. As we

have noticed earlier there is no evidence on record to show that the

relationship between the appellant and the deceased were strained

and not cordial. There is also evidence on record to show that the

deceased had been keeping unwell after child birth and she was

being treated for her ailments. The High Court has observed that

there was no reason for the deceased to commit suicide. Apart from

the fact that a person committing suicide behaves with abnormality,

equally there is no reason for the appellant to commit the murder of

the deceased. That apart, the conduct of the appellant is also not

consistent with the hypothesis of her guilt. If she had really

administered poison to the deceased she would not have

accompanied the deceased to her parents' house at Purada and

thereafter taken her to the hospital at Sumerpur. Admittedly, she was

present all the time and all this only indicate her innocence in the

matter. Looking to the circumstances in which the dying declaration

was recorded by the police officer and not by the Magistrate, and

having regard to the other facts and circumstances of the case, we

are of the view that the prosecution has not proved its case beyond

reasonable doubt, and in any event the appellant is entitled to the

14

CRA Nos.849/2008 and 962/2008

benefit of doubt.”

(emphasis supplied)

18.In the case of Lallubhai Devchand Shah & Ors. vs. The State of

Gujarat, AIR 1972 SC 1776, the Apex Court has laid down in para as under :-

9.….......... A dying declaration must be closely scruitinised as to

its truthfulness like any other important piece of evidence in the light

of the surrounding facts and circumstances of the case, bearing in

mind, on the one hand, that the statement is by a person who has not

been examined in court on oath and, on the other hand, that the dying

men is normally not likely to implicate innocent persons falsely. See

Khushal Rao vs The State of Bombay 1958 SCR p. 552. If the court

is satisfied on a close Scrutiny of the dying declaration that it is

truthful, it is open to the court to convict the accused on its basis

without and independent corroboration. In the present case, we find

that on a close scrutiny of the dying declaration both the courts, after

a detailed consideration of the evidence, have come to the conclusion

that the dying declaration is true. The normal rule so far as this Court

is concerned is that when the High Court accepts a piece of evidence

as true, this Court does not examine the evidence afresh for itself

unless there is substantial error of law or procedure or there is a

failure of justice by reason of misapprehension or mistake in reading

the evidence or the case involves a question of principle of general

importance. See Brahmin Ishwarlal Manilal v. The State of Gujarat

Crl. Appeal No. 120 of 1963 decided on 10-8-1965, and Tapinder

Singh v. State of Punjab and Anr. 1970 (2) SCC p. 133.

19.It is being seen that investigating officers are not adhering to the

precautions contained in Regulation No.742 of M.P. Police Regulations

(supra) and other directions contained in the apex Court judgements before

recording the dying declaration. A copy of this judgment needs to be sent to

DGP, Madhya Pradesh for the purpose of circulating the same to

Superintendent of Police throughout the State, who in turn shall issue suitable

directions to SHOs of Police Stations within their jurisdiction.

20.It can also be seen that Ramchandra whose dying declaration was

claimed to have been recorded had received as many as 24 injuries. Dr.

Dineshchandra Saxena (PW/4) who had conducted the postmortem of

Ramchandra had found the following injuries on his person :-

“(i) Lacerated wound 7 x 2 cm x bone deep on the left side of the

skull.

(ii) Lacerated wound 4 x ½ x 1cm between medial line left side of

the skull.

(iii) Lacerated wound 5 x 2 x bone deep on right side of the skull.

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CRA Nos.849/2008 and 962/2008

(iv) Lacerated wound extending from right ear to right side of the

face 5 x ½ x 3 ¼ cm.

(v) Contusion with swelling on right side lower lip 3 x 2 cm.

(vi) Contusion 3 x 2 cm over right upper arm.

(vii) Big contusion 15 x 2 cm extending from right upper arm to

forearm with fracture of humorous and radius ulna bone with

haematoma on the joint of the elbow.

(viii) Lacerated wound 5 x 1 cm x bone deep on the right elbow

joint from where fracture could be seen and felt.

(ix) Lacerated wound 4 x 1 cm x bone deep on right forearm from

which pieces of bone were coming out.

(x) Contusion 5 x 4 cm on right palm.

(xi) Contusion on the left deltoid region 5 x 2 cm with rail

pattern.

(xii) Contusion 5 x 2 cm on the left upper arm on the anterior

aspect.

(xiii)Contusion 8 x 2 cm on the left upper arm on the anterior

aspect.

(xiv) Contusion 6 x 4 cm on the left forearm with swelling. The

bones of left forearm were found to be fractured with presence of

haematoma.

(xv) 3 abrasions with contusion size 8 x 1 cm x 5 x 1 cm and 3 x

1 cm on left forearm.

(xvi) Swelling with contusion on left palm 5 x 4 cm.

(xvii) Contusion below right chest size 8 x 4 cm.

(xviii) Contusion resembling rail pattern size 5 x 4 cm on right

side of the back and 28 x 20 cms on left side of the back.

(xix) Abrasion all over the back 26 x 28 cm on the right side and

28 x 20 cm on the left side of the back.

(xx) Lacerated wound 8 x 3 cm on the left leg resulting in both

tibia and fibula bones coming out of the wound. On opening the

wound it was found that the lower side of the femur bone was

also fractured.

(xxi) Lacerated wound 3 x 1 cm bone deep below knee with both

bones broken along with haematoma.

(xxii) Lacerated wound on the lower side of the left leg 5 in

number sizes 2 x ½ x 1 cm, 1 ½ x ½ x 1 cm, 1 x ½ x 1 cm, 2 x ½

x ½, 1 x ½ x 1 cm.

(xxiii) Lacerated wound on the joint of the knee 7 x 2 cm right leg

fibula and deep bones were seen coming out of. The joint near

knee was dislocated.

(xxiv) Lacerated wound on right leg size 1 ½ x 1 x 1 cm.

(xxv) Abrasion 5 x 1 cm on right leg.

21. As per Dr. Dineshchandra Saxena (PW.4) injury Nos.7, 8, 9, 13,

16, 17, 19, 20 and 22 had fractures. Thus, there were as many as nine

fractures. On internal examination of the skull haematoma was found in injury

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CRA Nos.849/2008 and 962/2008

Nos.1, 2 and 3. On internal examination of the chest the sternum bone was

found to contain haematoma and the bones below right chest were found to be

broken and the right lung was found to be lacerated and torn. There was blood

present in the right pleural cavity. The chambers of heart were empty and

water was found in abdomen. The death has occurred as a result of

haemorrhage resulting from the injuries and it was culpable homicide in

nature. As per the witness the report is Ex.P/4. All injuries were antemortem

in nature. With such multiple fractures, collapsed lung, serious injuries on

skull, it cannot be expected that Ramchandra was still in a position to not only

record the statements in Dehatinalishi, but also record his dying declaration

thereafter. The incident had occurred at about 7.30 Am to 8.00 AM and the

dying declaration was recorded 4 hours later. Such a seriously injured person

is most likely to lapse into unconsciousness if not already dead in four hours

duration. Hence, the dying declaration is unreliable.

22.Other eyewitness of the incident is Gatta Bai (PW.16). She is the wife

of deceased Ramchandra. This witness states that at the time of incident she

was standing at her house and she had witnessed the murder. She states that

all accused had assaulted her husband. She states that the accused also

assaulted her father-in-law (Kachru). She also states that her brother-in-law

Bhagirath had climbed on the terrace of the house, but the appellants also

climbed up and cut him down. Her daughter was also injured with the sword.

She denies in her cross examination that all the three of her family members

had died while committing dacoity in a train as a result of train accident and

she also denies that a false case has been foisted against the appellants in

order to claim money. She has been given suggestion that due to

misbehaviour with her she used to stay at her parental house. She denies this

suggestion but then states that earlier she used to stay with her husband only.

This could mean that she in fact used to stay away from her husband. The

witness admits that her mother-in-law had told her to give statement as they

would fetch money if they give statements. She then immediately states that

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CRA Nos.849/2008 and 962/2008

her mother-in-law did not told her so. She states that she has received

Rs.1,40,000/- so far which has already been deposited. In para 12 of the cross

examination she states that the spot of the incident is barely 5 steps away from

her house. Then in para 15, she admits that the slope where the incident took

place is 50 feets away from her house. Thus, there are major inconsistencies

in her statements. Thus witness does not appear to be reliable. While the

prosecution story is that her father-in-law Kachru was coming after answering

the call of the nature, but this witness denies so. In para 16 she states that

when incident occurred she was standing out side her house, but immediately

thereafter states that when her husband was assaulted, she came out of the house.

23.As already seen, the aforesaid witness does not inspire confidence.

Another eyewitness namely Nanibai (PW.3) has also been not found to be

reliable. Nanibai (PW.3) has admitted that she was told by the officers that if

they give proper statements then her son would be employed in Government

service, that Collector and S.P. had given her Rs.2.80 lacs in F.D. and

Rs.20,000/- as well. She has been asked regarding the incident of the previous

night when stones were hurled allegedly by the appellant at her house. In para

10 she states that she told nobody in the village about the stones. She has

stated that she had suffered injury due to stones hurled by the appellants, but

there is no MLC of the witness conducted by the police. She admits that there

is a motorcycle and tractor in her house. It is not understandable as to why she

and Ramchandra were going on foot to police station Mahidpur Road, which

is 18 Kms from her village. It is also not understandable as to why Nanibai an

old woman would be accompanying her son on foot for lodging the report.

Nanibai (PW.3) herself states that it takes about half an hour to reach the

police station on motorcycle. One can very well imagine that no person

would go on foot to lodge the report to such far off distance. Why

Ramchandra could not have been accompanied by other male members of the

family, has not been shown. While Gattabai (PW.16) has stated that the place

of the incident was a slope about 50 feets away from her house, Nanibai

18

CRA Nos.849/2008 and 962/2008

(PW.3) states that the aforesaid slope was 2 to 3 Kms away. Thus, it is certain

that there was no possibility for Gattabai to see the incident from her house.

One also fails to understand as to how Kachru, father of Ramchandra would

go to that far for answering the call of nature as the slope where the incident

took place was 2 to 3 Kms away from his house. Further, if Ramchandra was

intercepted so far from his house, then what was the need for appellants to

rush to his house and assault Bhagirath who was present in his house only.

Further, if 3 persons had been murdered in broad day light then how is it

possible no villagers came to the spot as the incident could not have been

committed without any shouts and yelling etc. The weapons which have been

seized from the appellants have not been sent to the FSL. The I.O. Prahlad

Singh Tomar (PW.18) has not given any explanation as to why the weapons

were not sent to the FSL. The two other deceased were Bhagirath and Kachru.

Bhagirath had suffered 17 injuries and Kachru 14 injuries and number of

fractures were found on various bones of Bhagirath as well as Kachru and

important commonality in the injuries of Bhagirath and Kachru are that injury

No.13 of Bhagirath was in the form of railway track pattern on the left thigh

size 8 x 2 cm and the 11

th

injury on Kachru was also in the form of rail track

pattern 10 x 2 cm on the left thigh. It has already been seen that 11

th

injury

and 18

th

injury of Ramchandra were also of rail pattern. The 11

th

injury was a

contusion on left deltoid region 5 x 2 cm. The 18

th

injury was a contusion 5 x

4 cm rail track pattern on his back.

24.Thus all the 3 deceased had injuries resembling rail track pattern

impressions. This probabilizes the suggestion given to Gattabai (PW.16) that

the death was on account of train accident. The suggestion is that the

aforesaid accident occurred when the deceased were trying to commit dacoity

in a train. It can also be seen that the Investigating Officer Prahlad Singh

Tomar (PW.18) when received the information on telephone regarding the

incident, did not care to record the information on any Roznamchasana. There

is no Rawangi Roznamchasana drawn. Hate Singh (PW.1) who has lodged

19

CRA Nos.849/2008 and 962/2008

FIR on the basis of Dehatinalishi admits in para 5 that there is no mention of

Roznamcha number in the FIR. The witness states in para 5 that there is no

mention as to how the information was received in the police station. He then

states that in Roznamcha the aforesaid information is mentioned but then no

Roznamcha has been exhibited nor placed on record. He denies that Ex.P/1

does not contain the Roznamcha number because no Roznamcha was in fact

written. Despite denying the suggestion the fact remains that no Roznamcha

has been exhibited or placed on record. This lapse raises finger of suspicious

on the Investigating Officer. This Court expresses its displeasure on the

manner of investigation by the Investigating Officer who has left gapping

holes in his investigation. DSP R.S. Prajapati (PW.15) in para 15 of his cross

examination has stated that he has received wireless information regarding the

murder of Dalits and he had been informed that SHO was already present at

the spot. This shows that I.O. Prahlad Singh Tomar (PW.18) is not stating the

truth when he states that he had informed the DSP while proceeding towards

the spot.

25.It has already been seen that Gattabai (PW.16) has been given

suggestion that the deceased were attempting train robbery and were cut down

and died in the train accident. Investigating Officer Prahlad Singh Tomar

(PW.18) has admitted in para 18 that number of criminal offences have been

registered against Ramchandra, Kachru and Bhagirath in police station. The

deceased were thus having criminal antecedents and the police was aware

about their criminal history. It cannot be denied that when they were found to

have died, a false case was foisted upon the appellants against whom the

deceased had lodged police complaint barely the 3 days ago. The role of the

Investigating Officer appears to be highly suspicious. He states in para 20 that

he did not inform the Police Control Room. He states in para 6 and 7 that he

had informed DSP while proceeding towards the spot but does not remember

as to whether such information was given on mobile or from landline. As

already seen, no Roznamchasana was drawn regarding receipt of such

20

CRA Nos.849/2008 and 962/2008

information in police station. Nanibai (PW.3) states that on seeing the incident

she had gone to call the Sarpanch and police was informed on telephone.

However, Sarpanch has not been examined and Nanibai (PW.3) was not

expected to herself inform the police station. After due consideration of

evidence available on record, we find that neither the eye-witnesses have been

found to be reliable nor the various links in circumstantial evidence have been

found proved in a manner so that a complete chain of circumstantial evidence

pointing out guilt of appellants may be established. Consequently, the

appellants stand acquitted from all the charges i.e. from Section 148 of IPC

and Sections 302/149 (three counts) of IPC. Any fine amount deposited by the

appellants be restored to them. If not required in any other case, they shall be

released from the jail forthwith. Three of the appellants namely Balu Singh,

Roop Singh and Meharban Singh are on bail. Their bail bonds stand

discharged.

26.We have found role of Prahlad Singh Tomar (PW.18) who was

investigation officer to be extremely un-professional. The investigation

carried out not only is replete with major lapses, there are indications of

actually concocted dying declaration. Hence, we recommend initiation of

proceedings against the investigating officer Shri Prahlad Singh Tomar

regarding withholding/reducing his pension under M.P. Civil Services

(Pension) Rules, 1976. A copy be sent to the senior police officer (DGP/IG)

for the purpose.

27.We also express our displeasure over the investigation carried out by

SDOP, Mahidpur R.S. Prajapati (PW.15), who being a senior police officer,

did not get to the root of the matter. Extra caution ought to have been taken in

a case involving three deaths.

28.We further express our regret on inappropriate appreciation of the

evidence by the trial Court, which although noticed serious discrepancies in

the evidence, has however tried to reason out in favour of the prosecution

which has resulted in failure of justice ultimately. As many as 6 out of 9

21

CRA Nos.849/2008 and 962/2008

appellants have had to remain in jail since 2005 (16 years) so far.

29.The property seized in the matter would be stand disposed of as per

para 37 of the impugned judgment.

30. A copy of this judgment be sent to the trial Court alongwith original

record for compliance.

(Vivek Rusia) (Shailendra Shukla)

Judge Judge

amit