REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  661 OF 2004

State of M.P. ..Appellant

Versus

Ramesh @ Chhinge & Ors. ..Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the

Madhya Pradesh High Court directing the acquittal of the respondents who

faced trial for alleged commission of offences punishable under Section 302

of the Indian Penal Code, 1860 (in short the ‘IPC’) so far as respondents

Ramesh(A1)andGurudayal(A3)  are  concerned  and  Section  302  read  with

Section  34  IPC so  far  as  the  respondents  Kailash  (A2)  and  Pappu  (A4)

respectively  are  concerned.   Additionally  respondent  Gurudayal  was

charged for alleged commission of offence punishable under Section 25(1-

B)(a) of the Indian Arms Act, 1959 (in short the ‘Arms Act’).

2. Prosecution Version in a nutshell are as follows:

On  21.5.1993  at  about  9  A.M.  near  village  Kurthara  all  the

respondents caused murder of Ramavtar s/o Buddhasingh and attempted on

the life of Rajesh alias Raje and Manik Singh.  On 21.5.1993 in the morning

Manik  Singh  was  required  to  attend  court  for  hearing  at  Bhind.   For

attending the Court he left village Kurthara alongwith his brother Ramavtar,

his  wife’s  brother  and  his  uncle-in-law  Prahlad  and  Rajesh  proceeding

towards Court on bicycles.  Prahlad was riding the first  cycle and Manik

was sitting on the  carrier  of  the cycle behind him.  Just  behind Prahlad,

Rajesh alongwith Ramavtar was following in another bicycle.  When they

were near the agricultural field of Ramkishan, then Gurudayal armed with .

315  bore  rifle,   Kailash  armed with  single  barrel  .12  bore  riffle,  Pappu

Yadav armed with single .12 bore rifle and Ramesh alias Chhinge armed

with farsa were chasing them.  When they reached near  the complainant

party  Kailash  fired  from  his  .12  bore  rifle.   On  hearing  the  gun  shot

Ramavtar fell from the bicycle of Rajesh.  As he got up, Gurudayal shot at

him with .315 bore rifle.  The bullet pierced through the body on the right

side of chest and Kailash and Pappu Yadav also fired with an intention to

2

cause death, but bullet had not hurt anyone.  FIR is said to be lodged at 9.30

A.M.  by  Man  Singh.   Spot  map  (Ex.P-11)  was  drawn  and  one  empty

cartridge of .12 bore rifle and blood stained earth were seized vide Ex.P.13.

Trial  court  after  framing  charges  and  on  analyzing  the  evidence

tendered, convicted the appellants.

Before the High Court it was stated that the incident allegedly took

place in the early morning and the time of incident is mentioned as 9 AM. It

was submitted that the FIR was prepared with deliberation and there was

non-compliance of the requirements of Section 157 of the Code of Criminal

Procedure, 1973 (in short the ‘Code’).  It was pointed out with reference to

the evidence of Dr. K.N. Sharma (PW 14) that Prahlad and Manik Singh had

identified the dead body and they informed him that they had seen the dead

body for the first time at 7.30 A.M. In the post mortem report Exh.P9 the

doctor found that the stomach of the deceased was empty and there was no

digested or semi-digested food in the stomach.  The period necessary for

digestion   and semi digestion  food  was  indicated  by the  doctor.   It  was

therefore  submitted  before  the  High  Court  that  the  incident  took  place

around 7.30 AM and the deceased was murdered by some unknown person

and because of enmity the accused persons were falsely implicated. 3

With  reference  to  Exh.  P3  it  was  submitted  that  the  time  of

preparation of the spot map was earlier mentioned at 10.55 A.M. which was

scored  out  and  the  time  was  changed  to  9  AM.  Additionally  it  was

submitted that when Safina form was prepared at 10.45 A.M. question of

preparation of map at 9 AM appears to be doubtful.  Time earlier mentioned

i.e. 10.55 A.M. was the correct time mentioned in the inquest report.  It was

pointed  out  that  the  FIR  was  prepared  in  the  police  station  whereas

witnesses have deposed that the complaint was recorded on the spot. Later

on FIR was lodged at the police station.  In that view of the matter it was

submitted that the FIR was suppressed by the prosecution. PW3’s evidence

was highlighted to show that in para 9 he had deposed that after the fire he

ran  away  from  the  spot  and  reported  the  matter  to  the  station  office

incharge.  He admitted that Manik had not reached the police station before

him as he was sitting by the side of the dead body when police reached the

spot.  This submission was corroborated by the statement of Manik (PW16)

who admitted that when Ramavtar was hit by Gurudayal, he remained at the

spot  till  Town Inspector,  Cosntable  and  other  police  officer  reached  the

spot.  He also admitted that 10 to 20 villagers had gathered at the spot but

he had not told them about the incident.

4

Learned  counsel  appearing  for  the  State  before  the  High  Court

submitted that there were certain minor corrections which did not corrode

the credibility of the prosecution version.  The High Court noted that there

are material  discrepancies in the eye witnesses’ version.  Considering the

overall  evidence it has been established that deceased died on account of

gunshot injuries but that the overt act cannot be attributed to Kailash and

Pappu.  Since witnesses  had deposed that  Ramesh was not  present  at  the

spot, he was also given benefit of doubt.  Accordingly, the conviction of

Ramesh, Kailash and Pappu was set aside.  So far as Gurudayal is concerned

with reference to the evidence of doctor it was held that the distance from

which the bullet was fired upon was not known. But he had mentioned that

the body was identified at 7.30 in the morning, whereas the witnesses had

deposed that the incident took place when they were proceeding towards the

court.  PW 4 had deposed that the deceased had gone to court after taking

meal but the post mortem report is contrary to it.  In view of this the High

Court directed acquittal.

3. There is no appearance on behalf of the accused in spite of service of

notice.

5

4. At the outset it must be noticed that the judgment of the High Court is

fully  unreasoned  and  the  only  conclusions  for  directing  acquittal  are

contained in paragraphs 7&9 which read as follows:

“7. We have heard the counsel for the parties. It is true that there are material  discrepancies in the eye witness account.   Firing by Kailash and Pappu has not  injured anyone and some witnesses have deposed that  Ramesh was  not  present  on  the  spot.   Considering  the  overall evidence  it  was  established  that  the  deceased  diedon account of gun shot injury, but act of kailash and Pappu is not proved beyond reasonable doubt.  Since witnesses have deposed that Ramesh was not present on the spot, he is entitled for the benefit of doubt.

9. As  regards  Gurudayal  is  concerned,  in  the evidence to PW 14 Dr. K.N. Sharma, he was not able to state the distance from which the bullet was fired upon the  deceased  but  he  has  mentioned  that  the  body was identified at 7.30 in the morning, whereas witnesses have deposed  that  the  incident  took  place  when  they  were proceeding towards the court.  Wife of Ramavtar (PW4) has deposed that the deceased has gone to the court after having meals, but in the post mortem report, no food was found  in  the stomach.   Therefore  time of  incident  has been changed by the prosecution.”

5. There were five witnesses examined by the prosecution who claimed

to be eye witnesses.  Rajesh (PW1) did not support the prosecution version.

However  PWs.  3  &  16  i.e.  Prahlad  and  Manik  fully  corroborated  the

6

prosecution version.  The High Court erroneously observed that there was

no  injury.   In  fact  the  evidence  clearly  established  that  the  Ramesh has

caused farsa injury on the head of the deceased.  Unfortunately, this was not

noticed by the High Court.  Apart from the fact that there was no discussion

of  the  eye  witnesses’  version,  even  the  medical  evidence  has  not  been

discussed. The farsa injury caused on the head has not been noticed.  The

FIR was lodged at about 9.30 A.M. The police station undisputedly was

about  a  distance  of  6  km.   The  High  Court’s  judgment  is  clearly

unsustainable in view of the deficiencies highlighted above. Normally, we

would have restored the judgment of the trial court. But in view of the fact

that the respondents have not appeared in spite of the notice, we remit the

matter to the High Court for detailed analysis of the relevant evidence and

give fresh decision on merit afresh.  

6. The appeal is allowed to the aforesaid extent.                              

……………… …..........................J.

(Dr. ARIJIT PASAYAT)

   …………………………...............J. (Dr. MUKUNDAKAM SHARMA)

New Delhi,

7

February 3, 2009  

8