1

Cr. A. No.5710/2017

IN THE HIGH COURT OF MADHYA PRADESH

AT INDORE

BEFORE

HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI

&

HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA

ON THE 8TH DAY OF FEBRUARY, 2023

CRIMINAL APPEAL No. 5710 of 2017

BETWEEN:-

1.

MANSA @ MANSU S/O KAMAL SINGH

AGED ABOUT 30 YEARS, BORDA DHAKAD

DISTRIC UJJAIN (MADHYA PRADESH)

2.

GOVIND SINGH S/O KAMAL SINGH

AGED ABOUT 27 YEARS, BORDA DHAKAD

DISTRICT UJJAIN (MADHYA PRADESH)

.....APPELLANTS

(SHRI CHANDRA PRAKASH PUROHIT, ADVOCATE)

AND

THE STATE OF MADHYA PRADESH

STATION HOUSE OFFICER

THROUGH P.S. KAYETHA

DISTRICT UJJAIN (MADHYA PRADESH)

.....RESPONDENT/STATE

(SHRI BHASKAR AGRAWAL GOVERNMENT ADVOCATE)

Reserved on :30.01.2023

Pronounced on :08.02.2023

------------------------------------------------------------------------------------

This appeal having been heard and reserved for judgement,

coming on for pronouncement this day, Hon'ble Shri Prakash Chandra

2

Cr. A. No.5710/2017

Gupta pronounced the following:

J U D G E M E N T

Appellants have filed this appeal under Section 374 of the Code of

Criminal Procedure, 1973 (hereinafter referred to as “the “Cr.P.C.”),

against the judgement dated 16.11.2017 passed by the 10

th

Additional

Sessions Judge, District-Ujjain (M.P.) in Sessions Trial No.379/2015,

whereby learned Trial Court has convicted and sentenced the appellants

as under :-

S.

No.

Conviction Sentence

Imprisonment Fine

amount

Additional

imprisonment

in default of

payment of fine

Appellant – Mansa @ Mansu

1302 of IPCLife

imprisonment

Rs.5,000/-RI for 04 months

Appellant – Govind Singh

1302/34 of IPCLife

imprisonment

Rs.5,000/-RI for 04 months

2.Case of the prosecution in nutshell is that on 23.03.2015 at 9.00

PM, when complainant Ramu Bai (PW/1) and her son/deceased Devi

Singh were sitting in Otala (i.e. a platform) present in front of the house

of Dhapu Bai situated in front of the home of deceased, at village Borda

Dhakad, Police Station Kayetha, District Ujjain (M.P.), the appellants

came there by motorcycle. Appellant Govind Singh was riding the

motorcycle and appellant Mansa @ Mansu was pillion rider. Appellant

Mansa @ Mansu had fired gun three times on the deceased. Due to

3

Cr. A. No.5710/2017

gunshot injuries, the deceased fell down. The appellants fled away

towards the house of Karan Singh. Ramu Bai (PW/1) raised alarm by

shouting, hearing to which Anil Dhakad (PW/3) and other persons came

there. The inured/deceased was taken to the hospital at Dewas. The

doctor declared him dead. After receiving information, SHO Munni

Parihar (PW/14) went to the house of the deceased and lodged a dehati

nalisi (Ex.P/1), on the basis of the information given by Ramu Bai

(PW/1). On the basis of dehati nalisi (Ex.P/1), an FIR was lodged at

Police Station Kayetha on the same night. A merg intimation (Ex.P/25A)

was also registered at Police Station Dewas on the basis of intimation

(Ex.P/25) received from Dewas hospital. On the basis of merg intimation

(Ex.P/25A), a merg (Ex.D/3) was lodged at Police Station Kayetha.

3.ASI Sanjay Saurashtre (PW/13), Police Station Dewas went to

mortuary room of Dewas hospital. He issued notice (Ex.P/26) and

prepared Lash Panchnama (Ex.P/27) in the presence of witnesses. ASI

Sanjay Saurashtre (PW/13) has issued request letter (Ex.P/8) to the

District Hospital, Dewas for post-mortem. Dr. Tariq Ahmad Sheikh

(PW/8) conducted post-mortem on 23.02.2015 at 10:00 AM and prepared

post-mortem report (Ex.P/9). During post-mortem, he preserved and

sealed a bullet and 2 pellets which were found in the wounds present on

the body of the deceased. He also preserved and sealed skin of both

hands, head, chest, left leg and clothes of the deceased and handed over

the same to the concerned constable. On 01.04.2015, HC Narendra Singh

(PW/5) seized sealed packets produced by constable Ashok Dubey from

4

Cr. A. No.5710/2017

District Hospital, Dewas and prepared seizure memo (Ex.P/5).

4.During investigation SHO Munni Parihar (PW/14) on 23.02.2015

at about 08:00 AM inspected the place of incident in presence of Laxman

(PW/4) and prepared a spot map (Ex.P/4). On the same day at 10:30 AM,

she seized blood stained soil, simple soil and 3 empty cartridges from the

spot and prepared seizure memo (Ex.P/24A). SHO Munni Parihar

(PW/14) arrested appellant Mansa @ Mansu on 24.03.2015 at 10:10 PM

and on 02.04.2015 at 09:00 AM accused Govind Singh vide arrest memo

(Ex.P/18 and P/19, respectively). Disclosure memos (Ex.P/20, P/21 and

P/2, respectively) of appellant Mansa @ Mansu were prepared. On the

basis of disclosure memo (Ex.P/2), SHO Munni Parihar (PW/14)

recovered a country-made pistol at the instance of accused Mansa @

Mansu on 01.04.2015 at 10:45 AM vide seizure memo (Ex.P/3). On

02.04.2015 at 08:40 AM, she seized a motorcycle bearing registration

No.MP-41-MH-1603 from accused Govind Singh vide seizure memo

(Ex.P/22).

5.On the request of SHO Police Station Kayetha and under direction

of Tehsildar Tarana, Halka Patwari Sanjay Lalawat (PW/7) went to the

place of incident and prepared a spot map (Ex.P/7) at the instance of

constable Ashok Kumar. Armourer Santosh Chouhan (PW/15) on

29.04.2015 examined the seized country made pistol and gave a report

(Ex.P/33) alongwith letter (Ex.P/34). Prosecution Sanction (Ex.P/6)

against the appellant Mansa @ Mansu was taken from the District

5

Cr. A. No.5710/2017

Magistrate, Ujjain on 16.06.2015. Seized weapon and other articles were

sent to FSL, Sagar for chemical examination. Where from FSL report

(Ex.P/30) was received. Statement of witnesses were recorded u/S 161 of

Cr.P.C. After completion of investigation, charge-sheet was filed before

the concerning magistrate. The offence was exclusively triable by the

Court of Sessions, therefore, the case was committed before the Court of

Sessions.

6.Learned Trial Court framed charge against the appellant/accused

persons. The appellant abjured guilt and sought trial.

7.In turn, the prosecution, in order to prove its case has examined 15

witnesses. After completion of prosecution evidence, appellants were

examined u/S 313 of Cr.P.C. They have taken defence that there were

prior dispute between both the parties. Their father Kamal Singh had

lodged a report (Ex.D/1) against the deceased Devi Singh, therefore, the

complainant party has lodged a false report against them. In the night the

of incident, the appellants had gone to Police Station Kayetha to lodge

report, at that time police had made false case against them. The

appellants are innocent and they have not committed the offence. In

defence, the appellants examined Santosh Singh Vaishya (DW/2) and

appellant Mansa @ Mansu has examined himself as (DW/1).

8.Learned Trial Court after hearing the parties, convicted and

sentenced the appellants for the offence as mentioned above.

6

Cr. A. No.5710/2017

9.Learned counsel for the appellants submits that there is only one

eye-witness, Ramu Bai (PW/1) who is mother of the deceased, other

witnesses Sunil (PW/2) is nephew and Anil Dhakad (PW/3), Laxman

(PW/4) are sons of the deceased, are hearsay witnesses. There are

material omissions and contradictions in the statement of Ramu Bai

(PW/1) and being an interested witness, her statement is not reliable.

Recovery of country-made pistol at the instance of appellant Mansa @

Mansu is not proved. It is also not proved that empty cartridge recovered

from the spot, a bullet and 2 pellets found in the wound of the deceased

were fired from the recovered pistol. There are also discrepancies in the

statement of Ramu Bai (PW/1) and Dr. Tariq Ahmad Sheikh (PW/8) with

regard to injuries caused to the deceased. Appellant has no motive to kill

the deceased. Therefore, case of prosecution is not proved beyond

reasonable doubt. Learned counsel for the appellants has placed reliance

on the cases, State of Uttar Pradesh V Satveer and Ors. [(2015) 9 SCC

44]; Vikramjit Singh alias Vicky V State of Punjab [(2006) 12 SCC

306]; Golbar Hussain and Ors. V State of Assam and Anr. [(2015) 11

SCC 242] and Sunil Kundu and Anr. V State of Jharkhand [(2013) 4

SCC 422].

10.Learned Government Advocate for the respondent/State has

supported the impugned judgement and submits that though the learned

Trial Court has not found proved that the pistol recovered at the instance

of the appellant Mansa @ Mansu, it is also not found proved that the

empty cartridge and bullet and pellets recovered from the wound of the

7

Cr. A. No.5710/2017

deceased were fired from the recovered pistol but the case depends upon

statement of eye-witness Ramu Bai (PW/1), who is mother of the

deceased but she is not interested to falsely implicate the appellants, her

statement is supported by FIR and medical evidence. Hence, the learned

Trial Court has rightly relied upon her. Her statement is further supported

by Sunil (PW/2), Anil Dhakad (PW/3) and Laxman (PW/4) because they

saw the deceased right after the occurrence of the incident in injured state

and at that time Ramu Bai (PW/1) told them about the incident. Learned

Government Advocate for the State has placed reliance on the cases,

Bhajan Singh alias Harbhajan Singh and Ors. V State of Haryana

[(2011) 7 SCC 421]; State Through The Inspector of Police V Laly

alias Manikandan and Anr. [2022 SCC online SC 1424] and Bipin

Kumar Mondal V State of West Bengal [(2010) 12 SCC 91].

11.Learned counsel for the parties confined their arguments to the

extent indicated above.

12.We have heard learned counsel for both the parties and perused the

record.

13.Firstly, it is apposite to consider that whether the death of deceased

was homicidal in nature, or not?

14.As per statement of Ramu Bai (PW/1), Sunil (PW/2) and Anil

Dhakad (PW/3), it appears that after the incident the deceased was taken

to District Hospital, Dewas and after examination, the doctor had

8

Cr. A. No.5710/2017

declared him dead. The intimation (Ex.P/25) was sent by doctor to the

concerning police station and on the basis of the intimation letter

(Ex.P/25) a merg intimation (Ex.P/25A) was lodged at Police Station

Dewas and a merg intimation (Ex.D/3) was registered at Police Station

Kayetha on the basis of merg intimation (Ex.P/25A). ASI Sanjay

Saurashtre (PW/13) went to mortuary room in the district hospital,

Dewas, he issued notice (Ex.P/26) and prepared Lash Panchnama

(Ex.P/27). Thereafter, he sent the body of the deceased with requisition

letter (Ex.P/8) to the concerning doctor, District Hospital, Dewas for

post-mortem. After receiving intimation of the incident, on 22.03.2015,

SHO Police Station Kayetha, Munni Parihar (PW/14) went to the house

of the deceased and she lodged dehati nalisi (Ex.P/1) on the same day at

10:00 PM, on the basis of intimation supplied by Ramu Bai (PW 1), HC

Sunil Kumar (PW/11) had registered an FIR (Ex.P/23) at Police Station

Kayetha on the basis of dehati nalisi (Ex.P/1), on 23.03.2015 at 12:00

AM. Counter copy of FIR (Ex.P/24) was sent to the concerning

Magistrate.

15.Dr. Tariq Ahmad Sheikh (PW/8) conducted post-mortem on

23.03.2015 at 11:00 AM and he took X-ray of head, left hand, left leg and

left elbow of the deceased through X-ray technician and examined X-ray

plates (Ex.P/10 – P/16) and found that there were multiple fracture in

skull with entry and exit wounds (fronto parietal region), fracture in left

humerus. He gave X-ray report (Ex.P/17). In external examination, he

found following injuries on the body of the deceased:-

9

Cr. A. No.5710/2017

1.Bullet entry wound frontal bone region 1” above the left

eyebrow, of around 1 inch, passing through and through the skull,

cutting the brain, exit from occipital region of skull, leaving exit

wound of around 1.5 inch.

2.Bullet entry wound on left elbow, 1 inch, exit from below the

elbow, in the opposite side, leaving a 1.5 inch exit wound, cutting

through muscle and bone.

3.Bullet enter and exit superficially, cutting the skin below the

knee of left leg, injury approx 3.2” x 0.2” x 0.5”.

4.Black colour tattoo near right nipple 1” x 0.5”, burn mark

generally occurs due to bullet injury.

5.Reddish bruise on left leg, above and below knee.

6.Bruise on left hand, above and below elbow.

7.Multiple bruises on chest.

16.Dr. Tariq Ahmad Sheikh (PW/8) in internal examination found that

there were multiple fracture in skull bone, membrane of brain was torn

and brain was de-structured. There was fracture in humerus bone of left

hand and femur bone of left leg. 1 bullet and 2 pellets were recovered

from the injury present on the body of the deceased. He preserved and

sealed them, he also preserved and sealed clothes of deceased which were

worn by the deceased, skin present near the gunshot injury, and handed

over to the concerning constable.

17.The witness has opined that cause of death was because of

excessive bleeding occurring due to the gun shots leading to shock. Time

10

Cr. A. No.5710/2017

of death was within 12-20 hours from post-mortem. He proved post-

mortem report (Ex.P/9).

18.Dr. Tariq Ahmad Sheikh (PW/8) in paragraph-7 of cross-

examination has admitted that he has found a bullet in the wound but had

not found pellets in the wound but had found two pieces of lead metal. In

paragraph-8 of cross-examination, the witness stated that the gun was

fired from a distance of 2-4 feet. In paragraph-9, he stated that injury

Nos.1 to 4 were caused by firearm. Remaining injuries could have been

caused by hard and blunt object. In paragraph-16, the witness has denied

that injury No.3 could be caused by sharp object but he was not sure that

the wound could have been caused just by bullet only. Statement of this

witness appears to be reliable. It appears from the statement of the

witness that there were multiple injuries on the body of the deceased

including gunshot injuries. It also appears that the deceased had died

because of excessive bleeding, leading to shock arising out of injuries.

Therefore, it is certain that the deceased died due to gunshot injuries. It

appears that the injuries present on the body of the deceased were ante-

mortem in nature and his death was homicidal in nature.

19.Next question arises that whether the appellants Mansa @ Mansu

and Govind Singh had a common intention to kill the deceased and in

furtherance of their common intention, the appellants Mansa @ Mansu

caused death of the deceased by gunfire.

20.In the case of Sunil Kundu and Anr. (Supra), the Apex Court in

11

Cr. A. No.5710/2017

paragraph-24 has opined as under:-

“24. In Kapildeo Mandal V State of Bihar, (2008) 16 SCC 99,

all the eye-witnesses had categorically stated that the deceased

was injured by the use of firearm, whereas the medical evidence

specifically indicated that no firearm injury was found on the

deceased. This Court held that while appreciating variance

between medical evidence and ocular evidence, oral evidence

of eye-witnesses has to get priority as medical evidence is

basically opinionative. But, when the evidence of the eye-

witnesses is totally inconsistent with the evidence given by the

medical experts then evidence is appreciated in a different

perspective by the courts. It was observed that when medical

evidence specifically rules out the injury claimed to have been

inflicted as per the eye-witnesses’ version, then the court can

draw adverse inference that the prosecution version is not

trustworthy. This judgment is clearly attracted to the present

case.”

21.In the case of Satveer and Ors. (Supra), the Apex Court has opined

in paragraph-12 as under:-

“12. The last seen theory in the present case having

dimensions in terms of time as well place, would certainly

clinch the matter if the testimony of PW2 Mewa Ram is

accepted. Everything hinges on his testimony. He is the sole

witness. It was stated by this Court in Joseph v. State of Kerala,

(2005) 3 SCC 114 that where there is a sole witness his evidence

has to be accepted with an amount of caution and after testing it

on the touchstone of other material on record. Further, in State

of Haryana v. Inder Singh, (2003) 1 SCC 465 it was laid down

that the testimony of a sole witness must be confidence inspiring

and beyond suspicion, thus, leaving no doubt in the mind of the

Court. Noticing these two Judgments this Court in Ramnaresh v.

State of Chhattisgarh, (2002) 9 SCC 537 summed up the

12

Cr. A. No.5710/2017

principles as under:

“27.The principles stated in these judgments

are indisputable. None of these judgments say that the

testimony of the sole eyewitness cannot be relied upon

or conviction of an accused cannot be based upon the

statement of the sole eye-witness to the crime. All that

is needed is that the statement of the sole eye-witness

should be reliable, should not leave any doubt in the

mind of the Court and has to be corroborated by other

evidence produced by the prosecution in relation to

commission of the crime and involvement of the

accused in committing such a crime.”

The evidence of the sole witness thus needs to be considered

with caution and after testing it against other material and

further, such evidence must inspire confidence and ought to be

beyond suspicion.”

22.In the case of Golbar Hussain and Ors. (Supra), the Apex Court

has opined in paragraph-11 as under:-

“11. In the present case, however, the prosecution witnesses

PW-4 and PW-5, contradict each other, and their statements

are not corroborated by any independent witness in spite of the

incident happening in the market place, with shops on both

sides of the road. Therefore, in our view, as the testimonies of

PW-4 and PW-5 are not completely reliable, this is a fit case

where corroboration by an independent witness was required.

The case of the prosecution also weakens on the ground that

the only independent witness PW-8 turned hostile. A similar

situation arose in Shyamal Saha and Anr. v. State of West

Bengal, (2014) 12 SCC 321, where the only independent

witness turned hostile. This Court decided to affirm the

acquittal and granted benefit of doubt to the accused

considering the factual background and circumstances involved

13

Cr. A. No.5710/2017

in the case.”

23.In the case of Vikramjit Singh alias Vicky (Supra), the Apex Court

has opined in paragraph-15 as under:-

“15. It may be that in a situation of this nature where the court

legitimately may raise a strong suspicion that in all

probabilities the accused was guilty of commission of heinous

offence but applying the well-settled principle of law that

suspicion, however, grave may be, cannot be a substitute for

proof, the same would lead to the only conclusion herein that

the prosecution has not been able to prove its case beyond all

reasonable doubt.”

24.The Apex Court in the case of Bhajan Singh alias Harbhajan

Singh and Ors. (Supra), in paragraph-38 has opined as under:-

“38. Thus, the position of law in such a case of contradiction

between medical and ocular evidence can be crystallised to the

effect that though the ocular testimony of a witness has greater

evidentiary value vis-vis medical evidence, when medical

evidence makes the ocular testimony improbable, that becomes

a relevant factor in the process of the evaluation of evidence.

However, where the medical evidence goes so far that it

completely rules out all possibility of the ocular evidence being

true, the ocular evidence may be disbelieved. [Vide: Abdul

Sayeed v. State of Madhya Pradesh (2010) 10 SCC 259.”

25.The Apex Court in the case of Laly alias Manikandan and Anr.

(Supra) has held in paragraph-20 as under:-

“20. The submission on behalf of the accused that as the

original informant – Mahendran has not been examined and

14

Cr. A. No.5710/2017

that the other independent witnesses have not been examined

and that the recovery of the weapon has not been proved and

that there is a serious doubt about the timing and place of the

incident, the accused are to be acquitted cannot be accepted.

Merely because the original complainant is not examined

cannot be a ground to discard the deposition of PW1. As

observed hereinabove, PW1 is the eye witness to the occurrence

at both the places. Similarly, assuming that the recovery of the

weapon used is not established or proved also cannot be a

ground to acquit the accused when there is a direct evidence of

the eye witness. Recovery of the weapon used in the commission

of the offence is not a sine qua non to convict the accused. If

there is a direct evidence in the form of eye witness, even in the

absence of recovery of weapon, the accused can be convicted.

Similarly, even in the case of some contradictions with respect

to timing of lodging the FIR/complaint cannot be a ground to

acquit the accused when the prosecution case is based upon the

deposition of eye witness.”

26.In the case of Bipin Kumar Mondal (Supra), the Apex Court has

opined in paragraphs-23 and 24 as under:-

“23.In Shivji Genu Mohite Vs. State of Maharashtra, AIR 1973

SC 55, this Court held that in case the prosecution is not able to

discover an impelling motive, that could not reflect upon the

credibility of a witness proved to be a reliable eye-witness.

Evidence as to motive would, no doubt, go a long way in cases

wholly dependent on circumstantial evidence. Such evidence

would form one of the links in the chain of circumstantial

evidence in such a case. But that would not be so in cases where

there are eye- witnesses of credibility, though even in such cases

if a motive is properly proved, such proof would strengthen the

prosecution case and fortify the court in its ultimate conclusion.

But that does not mean that if motive is not established, the

evidence of an eye-witness is rendered untrustworthy.

15

Cr. A. No.5710/2017

24. It is settled legal proposition that even if the absence of

motive as alleged is accepted that is of no consequence and pales

into insignificance when direct evidence establishes the crime.

Therefore, in case there is direct trustworthy evidence of

witnesses as to commission of an offence, the motive part loses its

significance. Therefore, if the genesis of the motive of the

occurrence is not proved, the ocular testimony of the witnesses as

to the occurrence could not be discarded only by the reason of

the absence of motive, if otherwise the evidence is worthy of

reliance. (Vide Hari Shankar Vs. State of U.P., (1996) 9 SCC 40;

Bikau Pandey & Ors. Vs. State of Bihar, (2003) 12 SCC 616; and

Abu Thakir & Ors. Vs. State of Tamil Nadu, (2010) 5 SCC 91).”

27.It is apposite to examine the present case in the light of

aforementioned principle of law laid down in the above judgements.

28.In the present case, Ramu Bai (PW/1) is eye-witness of the incident

and she is mother of the deceased. Sunil (PW/2) is nephew of the

deceased and Anil Dhakad (PW/3) and Laxman (PW/4) are sons of the

deceased. Therefore, it appears that all the aforementioned witnesses are

close relatives of the deceased.

29.Ramu Bai (PW/1) stated that at the time of incident at about 09:00

PM, she was sitting in Otala present in front of the house of Dhapu Bai

situated in front of the her home alongwith her son/deceased Devi Singh.

The appellants came there by motorcycle. Appellant Govind Singh was

riding the motorcycle and appellant Mansa @ Mansu was pillion rider.

The appellant Mansa @ Mansu fired pistol on Devi Singh. He sustained 3

injuries on head and body, thereafter he fell down. Blood was oozing out

of the wound. She cried for help, Sunil (PW/2), Anil (PW/3), Laxman

16

Cr. A. No.5710/2017

(PW/4), and her daughter-in-law Heera Bai, wife of deceased Ahilya Bai

came there. She told them that the appellants came by motorcycle and

appellant Mansa @ Mansu fired the pistol on Devi Singh. Anil Dhakad

(PW/3) and Bhagwan Singh took Devi Singh to District Hospital, Dewas,

but the deceased died on the way.

30.Sunil (PW/2) and Anil Dhakad (PW/3) have stated that at the time

of the incident, they were watching television in the house of the

deceased. Laxman (PW/4) stated that at the time of incident he was

standing near his home. The witnesses had heard the cry of Ramu Bai

(PW/1) and they went to the spot and saw that Devi Singh was lying in a

pool of blood. Ramu Bai (PW/1) told them that the appellants came on

motorcycle, the appellant Govind Singh was riding the motorcycle and

appellant Mansa @ Mansu was pillion rider. Appellant Mansa @ Mansu

fired pistol on the deceased Devi Singh thereafter, Devi Singh was taken

to the District Hospital, Dewas.

31.SHO Munni Parihar (PW/14) stated that on 22.03.2015 she

received information about the incident and went to village Borda

Dhakad alongwith her staff. Ramu Bai (PW/1) told her about the incident

and she lodged a dehati nalisi (Ex.P/1) on the basis of information given

by Ramu Bai (PW/1). Ramu Bai (PW/1) also stated that after the incident

police had come on the spot and she informed the incident to the police

and police had lodged dehati nalisi (Ex.P/1). It appears from dehati nalisi

(Ex.P/1) that incident had taken place on 22.03.2015 at 09:00 PM and

17

Cr. A. No.5710/2017

dehati nalisi was written on the same day at 10:00 PM i.e. within an hour

of the incident against the appellants. Therefore, statement of Ramu Bai

(PW/1) is supported by dehati nalisi (Ex.P/1). SHO Munni Parihar

(PW/14) stated that she had prepared a spot map (Ex.P/4) at the instance

of Laxman (PW/4). Laxman (PW/4) stated that police had prepared spot

map (Ex.P/4) in his presence. Halka Patwari Sanjay Lalawat (PW/7)

stated that he inspected the place of incident and prepared spot map

(Ex.P/7) at the instance of constable Ashok Kumar. Constable Ashok

Kumar has not been examined by the prosecution. Constable Ashok

Kumar is not even an eye-witness of the incident. Therefore, preparation

of spot map (Ex.P/7) on his instance is meaningless.

32.From perusal of records, it appears that the place of incident as

alleged in dehati nalisi (Ex.P/1) is near Otala, front of the house of

Dhapu Bai, which is in front of the house of complainant Ramu Bai

(PW/1). Halka Patwari Sanjay Lalawat (PW/7), in spot map (Ex.P/7) also

showed the place of incident as alleged in dehati nalisi (Ex.P/1) but in

spot map (Ex.P/4) house of Dhapu Bai is not shown and in this spot map

alleged Otala is shown in front of the house of Teju Ben and the

aforementioned Otala is also shown in front of the house of complainant.

In this respect SHO Munni Parihar (PW/14) has admitted in paragraph-20

of cross-examination that she has not shown Otala of Dhapu Bai in spot

map (Ex.P/4), as mentioned in dehati nalisi (Ex.P/1) and case diary

statement (Ex.D/4) of Ramu Bai (PW/1). In paragraphs 38 and 39 of

cross-examination, she stated that Dhapu Bai and Teju Ben are old aged

18

Cr. A. No.5710/2017

women and both are living alone in their house. She has not taken case

diary statement of Dhapu Bai and Teju Ben. Apart from that in both the

spot maps (Ex.P/4 & P/7) the place of incident is shown near Otala

which is situated in front of the house of complainant. Ramu Bai (PW/1)

clearly stated that she was sitting on Otala of Dhapu Bai, situated near

the road and the aforementioned statement is not disputed by the

appellants in her cross-examination therefore, aforementioned minor

discrepancies does not cause any dent in the prosecution case.

33.As per statement of Dr. Tariq Ahmad Sheikh (PW/8), it appears that

injury Nos.1 to 4 of deceased were caused by firearm and other injuries

were caused by hard and blunt object. Ramu Bai (PW/1) stated that the

appellant Mansa @ Mansu has fired pistol 3 times on the deceased and

has not stated anything about other injuries caused by hard and blunt

object but her statement is supported by statement of Dr. Tariq Ahmad

Sheikh (PW/8) in respect of gunshot injuries on the body of the deceased.

Therefore, on the aforementioned ground, her statement cannot be

doubted.

34.It is clear that statement of Ramu Bai (PW/1) is supported by

dehati nalisi (Ex.P/1) and also supported by Sunil (PW/2), Anil Dhakad

(PW/3) and Laxman (PW/4). Her statement is further supported by Dr.

Tariq Ahmad Sheikh (PW/8). There is no discrepancy or omission and

contradiction in their statement. Though Ramu Bai (PW/1), Sunil (PW/2),

Anil Dhakad (PW/3) and Laxman (PW/4) are close relatives of the

19

Cr. A. No.5710/2017

deceased but it does not show that they are interested to falsely implicate

the appellants. Therefore, only on the ground that the witnesses are close

relatives of the deceased, their statement cannot be discarded. From the

statement of Ramu Bai (PW/1), it is clear that appellant Mansa @ Mansu

has fired pistol on the deceased and the deceased had died due to gunshot

injuries.

35.SHO Munni Parihar (PW/14) stated that she seized blood stained

soil, simple soil and 3 empty cartridges (Article A1 to A3) from the spot

and prepared seizure memo (Ex.P/24A), her statement is also supported

by Babulal (PW/12) hence, her statement is reliable.

36.As per prosecution, 3 disclosure statement (Ex.P/ 20, P/21 and P/2)

of appellant Mansa @ Mansu were taken on 25.03.2015, 30.03.2015 and

01.04.2015. Disclosure memo (Ex.P/21) was taken by SI Madhav Sharma

and remaining two disclosure statement (Ex.P/20 & P/2) were taken by

SHO Munni Parihar (PW/14). SI Madhav Sharma was not examined

before the learned Trial Court. SHO Munni Parihar (PW/14) in

paragraph-43 of cross-examination denied that she has prepared

disclosure memo (Ex.P/20), therefore, her statement as stated in

examination-in-chief in paragraph-6 that she has prepared disclosure

memo (Ex.P/20) of appellant Mansa @ Mansu, is not reliable. Alleged

pistol was recovered at the instance of appellant Mansa @ Mansu vide

seizure memo (Ex.P/3) on the basis of his disclosure statement (Ex.P/2),

but SHO Munni Parihar (PW/14) has not stated anything about

20

Cr. A. No.5710/2017

preparation of disclosure memo (Ex.P/2). Hence, recovery of pistol from

appellant Mansa @ Mansu is not proved. In this situation, report

(Ex.P/33) of Armourer Santosh Chouhan (PW/15) about working

condition of seized pistol has lost its significance, therefore, learned Trial

Court in paragraph-36 of the impugned judgement has rightly held that

recovery of pistol at the instance of appellant Mansa @ Mansu is

doubtful.

37.HC Narendra Singh (PW/5) stated that on 01.04.2015, he seized

sealed packets from constable Ashok Dubey, produced by him from

District Hospital, Dewas vide seizure memo (Ex.P/5). In paragraph-2 of

cross-examination, this witness has denied that he has not seized the

aforementioned articles. Therefore, his statement is reliable.

38.Seized articles were sent to FSL, Sagar for chemical examination.

As per FSL report (Ex.P/30), it was found that three similar empty

cartridges (Ex. EC1, EC2, EC3) recovered from the spot are fired by same

firearm, clothes of deceased i.e. shirt and pant were having gunshot

marks and on the piece of skin, presence of copper substance was found.

Therefore, the statement of Ramu Bai (PW/1) further supported by FSL

report (Ex.P/30) that gun was fired on the deceased.

39.As per FSL report (Ex.P/30), it is not found that the bullet

recovered from the wound of the deceased and empty cartridges

recovered from the spot were fired by the pistol recovered from the

appellants. Therefore, though it is not found proved that the pistol was

21

Cr. A. No.5710/2017

recovered from the instance of the appellants, but it is also clear from the

FSL report (Ex.P/30) that it is not established that deceased was fired

upon by the same pistol recovered from the appellant, but the instant case

depends upon the statement of sole eye-witness Ramu Bai (PW/1), she

has fully supported the case of prosecution and her statement is supported

by other witnesses which has been discussed above and further supported

by FSL report that the deceased was fired upon by pistol. Therefore, as

observed by the Apex Court in the case of Laly alias Manikandan and

Anr. (Supra), non-seizure of alleged weapon i.e. pistol, which was used

in commission of the offence does not adversely affect the case of

prosecution.

40.The appellants have taken defence of alibi, in this respect Mansa @

Mansu (DW/1) has stated that he lives in village Borda Dhakad and runs

a shop of light and sound in Maksi. On the date of incident at 06:30 PM,

he came to his house from his shop. His agricultural land is situated near

to his house and he saw that his crop of gram had caught fire. There was

no means to extinguish the fire. So, on being asked by his father to report

the same to Police Station Kayetha, he alongwith his brother appellant

Govind Singh went there at around 08:00 – 08:30 PM. SHO Munni

Parihar (PW/14) was not present at the police station. At 09:30 PM press

reporter Santosh Singh Vaishya (DW/2) had also come to the Police

Station Kayetha. The witness Mansa @ Mansu (DW/2) intimated Santosh

Singh Vaishya (DW/2) about the arson. At about 12:00AM, SHO Munni

Parihar (PW/14) returned to Police Station Kayetha, then he also

22

Cr. A. No.5710/2017

intimated her about the arson, but she did not lodge a report.

41.Santosh Singh Vaishya (DW/2) also supported the statement of

Mansa @ Mansu (DW/1). Mansa @ Mansu (DW/1) stated in paragraph-

2 of examination-in-chief that SHO Munni Parihar (PW/14) had come to

the police station at 12:00 AM while, Santosh Singh Vaishya (DW/2) in

paragraph-4 of cross-examination stated that he met SHO Munni Parihar

(PW/14) at 09:00-09:45 PM and he further stated that SHO Munni

Parihar (PW/14) did not come to the police station at 12:00 AM.

Therefore, their statement is contradictory. Apart from that SHO Munni

Parihar (PW/14) in paragraph-22 of cross-examination has denied that on

22.03.2015 appellants had come to Police Station Kayetha to lodge report

in respect of arson. She further denied that she had stopped Mansa @

Mansu at police station. Therefore, statement of defence witnesses is not

reliable and it does not appear that at the time of incident, the appellants

were not present at the place of incident.

42.SHO Munni Parihar (PW/14) stated that she seized a Hero-Honda

motorcycle from the appellant Govind Singh vide seizure memo

(Ex.P/22). Vikram (PW/9) and Abid Hussain (PW/10) have not supported

the statement of SHO Munni Parihar (PW/14). The prosecution has

declared them hostile and cross examined them. In cross-examination

both the witnesses have denied that the police has seized a Hero-Honda

motorcycle from the appellant Govind Singh, but both the witnesses

admitted their signature on seizure memo (Ex.P/22). Statement of SHO

23

Cr. A. No.5710/2017

Munni Parihar (PW/14) is supported by seizure memo (Ex.P/22),

therefore, her statement is reliable and it appears that a motorcycle was

seized from the appellant Govind Singh. Though, it does not appear that

the seized motorcycle was used in the crime because it is not stated that

there was any sign on the seized motorcycle.

43.So far as the question is related about commission of offence by

appellants in furtherance of their common intention, from the statement

of Ramu Bai (PW/1), it appears that at the time of incident, appellant

Govind Singh was riding the motorcycle and appellant Mansa @ Mansu

was pillion rider. The appellant Mansa @ Mansu fired pistol on the

deceased. Ramu Bai (PW/1) has stated that after receiving injuries, the

deceased fell down, she started to cry for help, thereafter the appellants

fled away while saying that ‘they had killed only one today and 3 are

left’. Her statement is supported by dehati nalisi (Ex.P/1), hence, her

statement is reliable. Therefore, it appears that the appellant had common

intention to kill the deceased and in furtherance of which appellant

Govind Singh took Mansa @ Mansu with him on his bike to the spot,

appellant Mansa @ Mansu fired pistol on the deceased, thereafter both

the appellants fled away together from the spot. Hence, learned Trial

Court has rightly held both the appellants guilty for the offence.

44.Learned counsel for the appellants argued that the appellants had

no motive to kill the deceased and complainant had falsely implicated the

appellants due to old enmity.

24

Cr. A. No.5710/2017

45.From the statement of Mansa @ Mansu (DW/1) and FIR (Ex.D/1),

it appears that father of appellants Kamal Singh had lodged an FIR

against deceased and 3 others on 30.06.2014 u/S 341, 294, 506, 323 r/w

34 of IPC. Ramu Bai (PW/1) stated in paragraph-4 of cross-examination

that there is no old enmity between both the parties and has expressed

that she is unaware about the fact that there was old dispute between the

deceased and Kamal Singh, she further denied about knowledge of FIR

(Ex.D/1). therefore, on the basis of (Ex.D/1), it appears that they were not

in good terms prior to the incident but on the basis of this ground it

cannot be said that the appellants have falsely been implicated in the

case.

46.Though from the statement of prosecution witnesses, it does not

appear that appellants had motive to kill the deceased but the case

depends upon statement of eye-witness, Ramu Bai (PW/1), therefore, as

held by the Apex Court in the case of Bipin Kumar Mondal (Supra),

motive is of no consequence and pales into insignificance when direct

evidence establishes the crime.

47.On the basis of foregoing discussion, it is clear that the prosecution

has succeeded to prove the offence against the appellants beyond

reasonable doubt. Learned Trial Court has rightly assessed the evidence

available on record and has not committed any error in convicting the

appellants for the offence. Learned Trial Court has also given minimum

sentence to the appellants for the offence, hence, the impugned judgment

25

Cr. A. No.5710/2017

does not require any interference.

48.Consequently, the appeal filed by the appellants is dismissed. The

judgement of conviction and order of sentence passed by the learned Trial

Court is hereby affirmed. The appellants are in jail, be intimated about

the outcome of this appeal through the Jail Superintendent concerned.

49.A copy of this judgement alongwith the record of learned Trial

Court also be sent back for intimation and compliance.

Certified copy, as per Rules.

(S. A. DHARMADHIKARI) (PRAKASH CHANDRA GUPTA)

JUDGE JUDGE

gp