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Monday, July 28, 2014

Death - Strangulation - Case Reg. under sec.174 Cr.P.C. as Suicide & Reported - after one year Fir was Reg. under sec.302/34 - Trial convicted the accused - High court confirmed the same though find that prosecution acted biased - Apex court held that material omissions like non-explanation of delay of one year in registering FIR, non-marking of Marg report reg. under sec.174 Cr.P.C. - Balram Singh, Assistant Sub- Inspector of Mau Police Station, who registered the Marg under Section 174 CrPC was not examined in the trial - non-explanation of Eye witnesses from lodging FIR against the accused immediately - examination of additional new witnesses after one year of the FIR - a slipshod investigation - though high court found the latches but simply discarded without assigning valid reasons High court fell in error and as such Apex court set aside convict orders of lower courts as prosecution failed to prove it's case beyond all reasonable doubts and acquitted the accused by allowing appeal =Sobaran Singh & Ors. .. Appellant(s) versus State of M.P. .. Respondent(s) =2014 – July. Part – http://judis.nic.in/supremecourt/filename=41753

Death - Strangulation - Case Reg. under sec.174 Cr.P.C. as Suicide & Reported - after one year Fir was Reg. under sec.302/34 - Trial convicted the accused - High court confirmed the same though find that prosecution acted biased - Apex court held that material omissions like non-explanation of delay of one year in registering FIR, non-marking of Marg report reg. under sec.174 Cr.P.C. - Balram Singh,  Assistant  Sub- Inspector of Mau Police Station, who registered the Marg under  Section  174 CrPC was not examined in the trial - non-explanation of Eye witnesses from lodging FIR against the accused immediately - examination of additional new witnesses after one year of the FIR - a slipshod investigation - though high court found the latches but simply discarded without assigning valid reasons  High court fell in error and as such Apex court set aside convict orders of lower courts as prosecution failed to prove it's case beyond all reasonable doubts and acquitted the accused by allowing appeal =

On 6.9.1994  at  8.00  a.m.  PW5  Satyendra
Singh and PW16 Brijendra Singh had gone to attend  call  of  nature  in  the
drain (Nalah) and they heard the sound of weeping and alarm raised  by  PW10
Om Prakash and they went there and saw Narendra  lying  on  the  ground  and
accused no.3 Sardar Khan put his knee on his chest after  holding his  hands
tight and accused no.1 Sobaran Singh and accused no.2 Suraj Singh  tied  his
neck with a muffler (Safee) and accused no.1 Sobaran Singh was armed with  a
12-bore gun and due to fear, they did  not  go  near  Narendra  and  in  the
meanwhile, PW6 Uday Singh and PW11 Vishwanath  Sharma  also  rushed  to  the
spot and on seeing them, accused nos.1 to 3 ran away.  They  found  Narendra
alive with injuries on the neck, chest and right knee and they  carried  him
to the tube-well and thereafter, put him on the  tractor-trolley  and  drove
him to the hospital at Mau where he was declared dead by the  Doctor.   PW14
Dr. O.P. Tengar conducted the post-mortem at 12.30  p.m.  on  6.9.1994  over
the body of Narendra and found the following :

Abrasion admeasuring 3.0 cm x 1.0 cm on calf muscle of right leg;

 Abrasion multiple in number size varies from 2.5” to  3.0”  in  length  and
linear in width over right side of neck 2” below the  ear  lobule  and  2.2”
above the clavicle;

Abrasion 2 in number size  2.2”,  2.0”  x  linear  just  over  the  cricoids
cartilage;

Contusion 1.5” x 1.0” on the middle sternum.

On dissection of the body, he found  contusion  on  sternum  and  ecchymosed
underneath the contusion (rupture of small capillaries and ventricles)  with
tracheal rings and cricoids cartilage fractured.  Pharynx  and  larynx  were
congested.  He expressed opinion that death was caused due to  strangulation
(Asphyxia), 4-6 hours  prior  to  autopsy  and  issued  Exh.P16  post-mortem
report.
Thereafter,
PW6 Uday Singh went to Mau Police Station and lodged  a
report, which was registered in the shape of Marg, under  Section  174  CrPC
by  Assistant  Sub-Inspector   of   Police   Balram   Singh.    During   the
investigation of Marg,  statements  of  the  witnesses  were  recorded.  
On
7.8.1995, PW9 Assistant Sub-Inspector Ram Naresh Singh Kushwah registered  a
case in Crime No.76/1995 against accused nos.1 to 3 for the alleged  offence
under Section 302 read  with  Section  34  IPC  and  prepared  Exh.P13  FIR.
   =
PW5  Satyendra
Singh and PW16 Brijendra Singh - Though both the above witnesses claimed to  have
seen the occurrence, during which the accused  attacked  Narendra  resulting
in his death, they have not lodged a complaint in  the  police  station  and
had not taken  immediate  steps  for  the  arrest  of  the  accused.   Their
testimonies do not inspire confidence and conduct belies their version.=
The investigation in this case is slip-shod.  Balram Singh,  Assistant  Sub-
Inspector of Mau Police Station, who registered the Marg under  Section  174
CrPC was not examined in the trial.   No  explanation  was  offered  by  the
prosecution for his non-examination.  PW12 Bharat  Singh  Sikarwar,  who  is
the station in-charge, has admitted that during Marg enquiry  he  could  not
ascertain the names of culprits nor could register the crime.  In  fact,  at
the instance of the higher police authority, the FIR came to  be  registered
against the accused on 10.8.1995, after a period of 11 months from the  date
of occurrence and the statements were recorded  on  10.8.1995  and  only  in
those statements, for the first time, PWs 5, 6, 10, 11 and  16  have  stated
that they saw the accused persons attacking Narendra during the  occurrence.
 The Marg Intimation Report, which was recorded, was neither  exhibited  nor
proved by prosecution in  the  trial.   The  Investigation  Officer  Santosh
Singh Gaur, who conducted part of  investigation  did  not  testify  in  the
trial.  The High Court has elaborately dealt  with  the  said  omissions  in
paragraph nos.19 and 25 of  the  judgment  and  proceeded  to  observe  that
investigation agency cannot be  permitted  to  conduct  investigation  in  a
tainted  and  biased  manner  and  concludes  that  the  investigation   was
defective and tainted and the defective investigation by itself cannot be  a
ground for acquittal.=
 Our independent analysis of the evidence on  the  record  coupled  with  the
infirmities which we have noticed above has created  an  impression  on  our
minds, that the prosecution has not been able to bring  home  guilt  to  the
appellants beyond a reasonable doubt.  The High Court  even  after  noticing
the infirmities, in our opinion, fell in error in confirming the  conviction
of the appellants.  The reasons given by the High Court do  not  commend  to
us to sustain the conviction and sentence. They are neither  sufficient  nor
adequate or cogent much less compelling to uphold the impugned judgment.
As a result of our above discussion, we  hold  that  the  case  against  the
appellants has not been proved  beyond  a  reasonable  doubt  and  they  are
entitled to benefit of doubt.  Their  appeal  consequently  succeed  and  is
allowed and the conviction and sentence imposed on them are  set  aside  and
they shall be set at liberty forthwith, if not required in any other case.
     

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41753

T.S. THAKUR, V. GOPALA GOWDA, C. NAGAPPAN
                                                   REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1466 OF 2012


Sobaran Singh & Ors.         ..   Appellant(s)

                                   versus

State of M.P.                     ..         Respondent(s)

                               J U D G M E N T



C. NAGAPPAN, J.



This appeal is preferred against the judgment dated 16.3.2012 passed by  the
High Court of Madhya Pradesh Bench at Gwalior in Criminal Appeal  No.353  of
2004.



The appellants herein are accused nos.1 to 3 in the case in  Sessions  Trial
No.8/97, on the file of Additional  Sessions  Judge,  Gohad,  District-Bhind
(M.P.) and they were tried for the  offence  punishable  under  Section  302
read with Section 34 IPC and the Trial Court convicted  them  for  the  said
offence and sentenced each one of them to undergo imprisonment for life  and
to pay a fine of Rs.500/-, in default to undergo Rigorous  Imprisonment  for
one month.



Challenging the conviction and sentence, the  accused  preferred  appeal  in
Criminal Appeal No.353 of 2004 in the High Court and the  same  came  to  be
dismissed by the impugned judgment and that is now under challenge  in  this
appeal.



Briefly, the case of the prosecution is as follows :

      PW5 Satyendra Singh, PW16 Brijendra Singh and deceased Narendra  Singh
are sons of PW7 Hanumant Singh.  PW6 Uday Singh  and  PW10  Om  Prakash  are
brothers of PW7 Hanumant Singh.  On 6.9.1994  at  8.00  a.m.  PW5  Satyendra
Singh and PW16 Brijendra Singh had gone to attend  call  of  nature  in  the
drain (Nalah) and they heard the sound of weeping and alarm raised  by  PW10
Om Prakash and they went there and saw Narendra  lying  on  the  ground  and
accused no.3 Sardar Khan put his knee on his chest after  holding his  hands
tight and accused no.1 Sobaran Singh and accused no.2 Suraj Singh  tied  his
neck with a muffler (Safee) and accused no.1 Sobaran Singh was armed with  a
12-bore gun and due to fear, they did  not  go  near  Narendra  and  in  the
meanwhile, PW6 Uday Singh and PW11 Vishwanath  Sharma  also  rushed  to  the
spot and on seeing them, accused nos.1 to 3 ran away.  They  found  Narendra
alive with injuries on the neck, chest and right knee and they  carried  him
to the tube-well and thereafter, put him on the  tractor-trolley  and  drove
him to the hospital at Mau where he was declared dead by the  Doctor.   PW14
Dr. O.P. Tengar conducted the post-mortem at 12.30  p.m.  on  6.9.1994  over
the body of Narendra and found the following :

Abrasion admeasuring 3.0 cm x 1.0 cm on calf muscle of right leg;

 Abrasion multiple in number size varies from 2.5” to  3.0”  in  length  and
linear in width over right side of neck 2” below the  ear  lobule  and  2.2”
above the clavicle;

Abrasion 2 in number size  2.2”,  2.0”  x  linear  just  over  the  cricoids
cartilage;

Contusion 1.5” x 1.0” on the middle sternum.

On dissection of the body, he found  contusion  on  sternum  and  ecchymosed
underneath the contusion (rupture of small capillaries and ventricles)  with
tracheal rings and cricoids cartilage fractured.  Pharynx  and  larynx  were
congested.  He expressed opinion that death was caused due to  strangulation
(Asphyxia), 4-6 hours  prior  to  autopsy  and  issued  Exh.P16  post-mortem
report.  Thereafter, PW6 Uday Singh went to Mau Police Station and lodged  a
report, which was registered in the shape of Marg, under  Section  174  CrPC
by  Assistant  Sub-Inspector   of   Police   Balram   Singh.    During   the
investigation of Marg,  statements  of  the  witnesses  were  recorded.   On
7.8.1995, PW9 Assistant Sub-Inspector Ram Naresh Singh Kushwah registered  a
case in Crime No.76/1995 against accused nos.1 to 3 for the alleged  offence
under Section 302 read  with  Section  34  IPC  and  prepared  Exh.P13  FIR.
During investigation of the case, witnesses were examined and  final  report
was filed.  Charge under Section 302 IPC was framed  against  accused  nos.1
to 3 and they were found guilty and were sentenced  as  narrated  above  and
the appeal preferred by them was dismissed by the High  Court.   Challenging
the same, accused nos.1 to 3 have preferred this appeal.

The learned counsel for the appellants contended that  the  Marg  Intimation
Report shows that the complainant had only a suspicion against  the  accused
and he has not stated about their involvement in the crime and  the  accused
have been convicted merely on the evidence of the informant  and  other  eye
witnesses, who are none else,  but  the  family  members  of  the  deceased,
having enmity against the accused and the First Information Report  came  to
be registered after nearly a  year  from  the  date  of  occurrence  and  on
deliberation and afterthought, the  statements  of  the  material  witnesses
have  been  recorded  falsely  implicating  the  accused   and   there   are
embellishment  and  material  contradictions  in  the  statements   of   the
witnesses and the investigation is biased and tainted  and  the  prosecution
has failed to prove the charge against the  accused  persons  and  the  High
Court fell in error while confirming the conviction  imposed  by  the  Trial
Court and the impugned judgment is liable to be set aside.



Per contra, the learned counsel for the respondent State contended that  the
courts below, relying on the testimonies of the ocular witnesses have  found
the accused guilty of the offence charged and the  conviction  and  sentence
imposed are sustainable and does not call for any interference.



Narendra died of Homicidal violence is sought to be proved by  testimony  of
the post-mortem Doctor and opinion of the  Forensic  Science  Expert.   PW14
Dr. O.P. Tengar  conducted  autopsy  on  the  body  of  Narendra  and  found
abrasions multiple in number with varying size over the right  side  of  the
neck and on dissection of the body,  contusion  on  sternum  and  ecchymosed
underneath with tracheal rings and cricoids cartilage fractured and  pharynx
and larynx congested.  In his post-mortem report, he  has  opined  that  the
death was caused  due  to  strangulation  (Asphyxia),  4-6  hours  prior  to
autopsy.



PW15 Dr. Ashok Sharma, Junior Forensic  Specialist  has  testified  that  he
perused the post-mortem  report,  the  Case  Diary  and  all  the  materials
collected and was of  the  view  that  there  was  no  scientific  basis  to
disagree with the opinion of the Autopsy Surgeon.  Exh.P18  is  the  written
opinion expressed by him.  Accepting the medical evidence it is  clear  that
Narendra died of Asphyxia by strangulation.



The prosecution case is that accused nos.1 to  3  in  furtherance  of  their
common intention committed the murder of Narendra by strangulating him  with
a muffler (Safee) and to prove the same, they examined PW5 Satyendra  Singh,
PW6 Uday Singh, PW10 Om Prakash, PW11 Vishwanath Sharma and  PW16  Brijendra
Singh as  having  witnessed  the  occurrence.   PW10  Om  Prakash  and  PW11
Vishwanath Sharma did not support the case of the prosecution  in  full  and
were treated as hostile.  Two  among  the  remaining  ocular  witnesses  are
brothers of deceased Narendra.



PW5 Satyendra  Singh  and  PW16  Brijendra  Singh  have  testified  that  on
6.9.1994 at 8.00 a.m. they had gone to Nalah to attend call  of  nature  and
they heard the sound of weeping and the alarm raised by PW10 Om Prakash  and
went there and found Narendra lying on the ground and  accused  no.3  Sardar
Khan put his knee on the chest of Narendra and holding his hands  tight  and
accused no.1 Sobaran Singh and accused no.2 Suraj Singh  pressing  the  neck
of Narendra by tying a muffler (Safee) and accused no.1  Sobaran  Singh  was
armed with a 12-bore gun and due to fear, they did not go near  and  in  the
meanwhile, PW6 Uday Singh and PW11 Vishwanath Sharma rushed to the spot  and
on seeing them, the accused left the place and they  took  injured  Narendra
to the hospital at Mau in a tractor-trolley, where he was declared dead.



Immediately after the occurrence, during Marg investigation,  PW5  Satyendra
Singh was examined and in the said statement, he  has  stated  that  he  was
ploughing his Banjara field with  tractor  on  6.9.1994  and  his  uncle  Om
Prakash came running to his field  and  informed  him  about  the  death  of
Narendra and this statement was put to PW5 Satyendra  Singh  in  the  cross-
examination and, of course, he has denied the same.  In this context  it  is
also  relevant  to  point  out  that,  after  registration  of   the   First
Information Report on  10.8.1995,  the  statement  of  Satyendra  Singh  was
recorded by the Investigation Officer, wherein, for the first time,  he  has
stated about having witnessed the occurrence.



In the Marg investigation, Brijendra Singh  was  not  examined  and  he  was
examined only after registration of the FIR on 10.8.1995, which is almost  a
year after the occurrence.  Though both the above witnesses claimed to  have
seen the occurrence, during which the accused  attacked  Narendra  resulting
in his death, they have not lodged a complaint in  the  police  station  and
had not taken  immediate  steps  for  the  arrest  of  the  accused.   Their
testimonies do not inspire confidence and conduct belies their version.



It is the testimony of  PW6 Uday Singh that on 6.9.1994 at about  8.00  a.m.
he went to the tube-well and met Vishwanath Sharma and they heard the  alarm
raised by PW10 Om Prakash and they rushed there and he saw from  a  distance
that Narendra lying on the ground with accused no.3 Sardar Khan  armed  with
a 12-bore gun sitting on his chest after holding both his  hands  tight  and
accused no.1 Sobaran Singh and accused no.2 Suraj Singh  pressing  the  neck
of Narendra by trying a muffler and PW5 Satyendra Singh and  PW16  Brijendra
Singh also reached there and on seeing them, all the accused  ran  away  and
they took injured Narendra in the tractor-trolley to the hospital  where  he
was declared dead by the doctor and he went to  police  station  and  lodged
Exh.D1 Complaint.  In his complaint PW6 Uday Singh has stated  that  on  the
occurrence day around 8.00 a.m. he went  from  his  house  for  grazing  the
cattle and around 9.00 a.m. his brother Om Prakash told  him  that  Narendra
is lying unconscious at the Har and thereafter, he, PW11  Vishwanath  Sharma
and PW5 Satyendra Singh went to Har and saw Narendra  lying  unconscious  on
the ground and a safee  was  there  around  his  neck  and  there  were  red
coloured marks on the chest  and  they  took  him  in  the  tractor  to  the
hospital at Mau, where he was declared  dead  and  he  came  to  the  police
station for filing the report and he  has  doubt  on  accused  no.1  Sobaran
Singh and  accused  no.3  Sardar  Khan.   In  the  Marg  Investigation,  his
statement was recorded, in which the same version has been told by him.   As
already seen, about 11 months after the occurrence,  the  First  Information
Report came to be registered on 10.8.1995 and the statement  of  Uday  Singh
was recorded and in that statement, for the first time, Uday Singh has  come
out with the version that he witnessed the attack made  by  the  accused  on
Narendra, which resulted in death.  If  really,  Uday  Singh  had  seen  the
attack made by the accused persons on Narendra  during  the  occurrence,  he
must have stated so  in  his  complaint  given  before  the  police  station
implicating the accused.  On the other hand, Uday Singh has  only  expressed
his suspicion on accused no.1 and accused no.3 in his complaint and has  not
whispered about witnessing the occurrence for a period of 11 months.



Exh.D2 is the statement of PW6 Uday Singh given on 6.9.1994 to  the  police,
wherein, he has stated that around 9.00 a.m.  on  the  occurrence  day,  his
brother PW10 Om Prakash told him at the tube-well  that  Narendra  is  lying
unconscious near the drain (Nalah) and  he  and  his  nephew  Satyendra  and
Vishwanath Sharma went to the drain and  found  Narendra  lying  unconscious
with injuries and there was safee around his neck and they  took  him  in  a
tractor-trolley to the hospital at Mau where he was  declared  dead  and  he
has doubt on accused no.1 Sobaran Singh and accused no.3 Sardar Khan as  the
dispute  is  going  on  with  them.   During  cross-examination,  the   said
statement was put to PW6 Uday Singh and he simply denied it and stated  that
he informed the police about the accused attacking Narendra.  In short,  the
testimony of PW6 Uday Singh does not inspire confidence and no credence  can
be given to it.



The complainant PW10 Om Prakash has testified that on 6.9.1994 at 8.00  a.m.
he took buffaloes for grazing to Banjara field and saw the  accused  persons
beating his nephew Narendra and  he  cried  and  thereafter,  PW5  Satyendra
Singh, PW6 Uday Singh and PW16 Brijendra Singh came there  and  the  accused
fled away and they took injured Narendra to the hospital  at  Mau  where  he
was pronounced dead.  It is his further testimony,  in  examination-in-chief
that he could not see by which  weapon  the  accused  persons  were  beating
Narendra and due to the impairment of vision, he could not say  whether  the
signatures found in the spot map and seizure memo were that of  his  and  he
was treated as hostile by the prosecution.



In the cross-examination, PW10 Om Prakash admitted that he was  examined  by
police on the date of occurrence itself, namely 6.9.1994, and the said  Marg
diary statement is  Exh.D/2-A,  and  he  has  stated  therein  that  on  the
occurrence day in the morning Narendra took buffaloes to  Banjara  wale  Har
and after sometime, he went with his buffaloes and  saw  Narendra  lying  in
the grass with white liquid coming from mouth and  nose  and  he  saw  at  a
distance that accused no.2 Suraj Singh with  a  12-bore  gun,  accused  no.3
Sardar Khan and another person, who could not be identified, going  down  by
crossing the drain (Nalah) and he ran to  the  tube-well  and  informed  the
same to others and he along with PW5 Satyendra Singh,  PW6  Uday  Singh  and
PW11 Vishwanath Sharma went  to  the  occurrence  place  and  found  injured
Narendra alive and they took him to  the  hospital  at  Mau,  where  he  was
declared dead  and  he  has  doubt  on  accused  nos.1  and  3  about  their
involvement in the death of Narendra.  The above version is the earliest  in
point of time wherein, he has not  stated  about  the  attack  made  by  the
assailants on Narendra.  Moreover, he did not support the  prosecution  case
in full and was declared as hostile.



PW11 Vishwanath Sharma is an independent witness and he was staying  in  the
tube-well of PW10 Om Prakash on 6.9.1994 and according to him, he heard  the
cry of PW10 Om Prakash and he along with PW5 Satyendra Singh  and  PW6  Uday
Singh ran there and  saw  Narendra  lying  seriously  injured  and  saw  the
accused  proceeding  towards  village  from  Nalah  and  they  took  injured
Narendra to the hospital in the tractor-trolley and he  was  dead  by  then.
This witness was  also  treated  as  hostile  by  the  prosecution  and  his
testimony does not help the prosecution case in any way.



The investigation in this case is slip-shod.  Balram Singh,  Assistant  Sub-
Inspector of Mau Police Station, who registered the Marg under  Section  174
CrPC was not examined in the trial.   No  explanation  was  offered  by  the
prosecution for his non-examination.  PW12 Bharat  Singh  Sikarwar,  who  is
the station in-charge, has admitted that during Marg enquiry  he  could  not
ascertain the names of culprits nor could register the crime.  In  fact,  at
the instance of the higher police authority, the FIR came to  be  registered
against the accused on 10.8.1995, after a period of 11 months from the  date
of occurrence and the statements were recorded  on  10.8.1995  and  only  in
those statements, for the first time, PWs 5, 6, 10, 11 and  16  have  stated
that they saw the accused persons attacking Narendra during the  occurrence.
 The Marg Intimation Report, which was recorded, was neither  exhibited  nor
proved by prosecution in  the  trial.   The  Investigation  Officer  Santosh
Singh Gaur, who conducted part of  investigation  did  not  testify  in  the
trial.  The High Court has elaborately dealt  with  the  said  omissions  in
paragraph nos.19 and 25 of  the  judgment  and  proceeded  to  observe  that
investigation agency cannot be  permitted  to  conduct  investigation  in  a
tainted  and  biased  manner  and  concludes  that  the  investigation   was
defective and tainted and the defective investigation by itself cannot be  a
ground for acquittal.



Our independent analysis of the evidence on  the  record  coupled  with  the
infirmities which we have noticed above has created  an  impression  on  our
minds, that the prosecution has not been able to bring  home  guilt  to  the
appellants beyond a reasonable doubt.  The High Court  even  after  noticing
the infirmities, in our opinion, fell in error in confirming the  conviction
of the appellants.  The reasons given by the High Court do  not  commend  to
us to sustain the conviction and sentence. They are neither  sufficient  nor
adequate or cogent much less compelling to uphold the impugned judgment.



As a result of our above discussion, we  hold  that  the  case  against  the
appellants has not been proved  beyond  a  reasonable  doubt  and  they  are
entitled to benefit of doubt.  Their  appeal  consequently  succeed  and  is
allowed and the conviction and sentence imposed on them are  set  aside  and
they shall be set at liberty forthwith, if not required in any other case.


                                                              …………………………….J.
                                             (T.S. Thakur)


                                                              …………………………….J.
                                             (V. Gopala Gowda)


                                                               ……………………………J.
                                             (C. Nagappan)

New Delhi;
July  7, 2014


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