State Of M.P vs Dhara Singh & Anr

State of M.P. ...Appellant

Versus

Dhara Singh and Anr. ....Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

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

Madhya Pradesh High Court, Gwalior Bench, directing acquittal of the

respondents. Learned 4th Additional Sessions Judge, Morena, had convicted

respondent No.1 for offence punishable under Section 302 of the Indian

Penal Code, 1860 (in short the `IPC') and Sections 25 and 27 of the Arms Act, 1959(in short the `Arms Act'). Respondent No.2 was convicted for

offence punishable under Section 302 read with Section 34 IPC.

2. Background facts in a nutshell are as follows:

On 3.10.1998 Sohan Lal (hereinafter referred to as the `deceased')

his son Ram Het, Dhanvanti, Ramswaroop, Kaptan Singh and Bhagwan

Singh came to Morena from Village Rajyekapura for the treatment of

Dhanvanti and to purchase fertilizer. They were returning back to their

village in a bullock cart at about 3.00 p.m. Said bullock cart was being

driven by Bhagwan Singh and the deceased Sohan Lal and Ram Swaroop

were behind the bullock cart. Ramhet, Dhanvanti and Kaptan Singh were

sitting in the bullock cart.

When the said bullock cart reached near Shivlal-ke-pura Ki Mata, at

that juncture accused Prem Das armed with a gun and accused Dhara Singh

armed with a katta came in front of the bullock cart. Prem Das asked to stop

the bullock cart and thereafter upon his exhortation Dhara Singh fired the

Katta, as a result of which Sohanlal died. The bullet hit the chest of the

deceased. Thereafter the accused persons fled away.

2 Two brothers of the accused had died 5 to 6 years ago in the hospital

with the result that the accused left the village after disposing of their land

to Gujiars. Subsequently, deceased had purchased a portion of land from

Gujiars. The accused persons were under impression that the deceased got

their brothers killed.

The First Information Report (In short the `FIR') was lodged by PW-

2 Ramhet and in this manner the criminal law was set in motion. The police

thereafter arrived on the spot, prepared the Panchnama, sent the dead body

of the deceased to the Hospital for post mortem, seized the wearing apparel

of the deceased and recorded the statements of the witnesses.

After investigation, charge sheet was filed. Since accused persons

pleaded innocence trial was held.

The trial Judge after considering the evidence on record found the

accused persons guilty as noted above. In appeal before the High Court it

was primarily submitted that the prosecution version is not acceptable. The

evidence of the witnesses did not inspire confidence. The bullet which was

3 found on the body of the deceased was recovered and was sent for

examination of the ballistic expert and his report was not placed on record.

The High Court found that the name of Bhagwan Singh (PW-3) did not find

place in the FIR. The State's stand was that neither of these two aspects

rendered the prosecution version suspect. The High Court however held that

the benefit of doubt was to be extended and directed acquittal.

3. Learned counsel for the appellant submitted that the conclusions are

very sketchy. There is no discussion of the eye witnesses. Ram Het Singh

(PW-2) the son of the deceased and Bhagwan Singh (PW-3) who was the

cousin of PW-2. Dhanwanti (PW-4) was the daughter-in-law of the

deceased. The FIR was lodged promptly. It is not a fact that the name of

PW-3 does not figure in the FIR. It has been clearly stated that the cousin of

the informant was an eye witness.

4. The conclusion of the High Court that PW-3's name did not find

place in the FIR is not correct. As a matter of fact PW-2 has clarified that in

fact the name of Bhagwan Singh has been indicated in the FIR as `Kaptan'.

Additionally, it is seen that there is no discussion of the evidence of the eye

witnesses. In what cases the examination of a ballistic report is essential to

4 further the prosecution version would depend upon the circumstances of

each case. In Chatar Singh and Anr. v. State of Haryana (AIR 1976 SC

2474) it was held that in the circumstances of the case the non obtaining of

the report of the ballistic expert, could not shake the prosecution case in the

least. The view was re-iterated in Lakhbir Singh and Anr. v. State of Punjab

(AIR 1994 SC 1029). In this context a decision of this Court in Surendra

Paswan v. State of Jharkhand (2003 (12) SCC 360) is relevant. In paras 9

and 10 it was held as follows:

"9. So far as the non-seizure of blood from the cot is concerned, the investigating officer has stated that he found bloodstained earth at the place of occurrence and had seized it. Merely because it was not sent for chemical examination, it may be a defect in the investigation but does not corrode the evidentiary value of the eyewitnesses. The investigating officer did not find presence of blood on the cot. The trial court and the High Court have analysed this aspect. It has been found that after receiving the bullet injury the deceased leaned forward and whatever blood was profusing spilled over onto the earth.

10. So far as the effect of the bullet being not sent for ballistic examination is concerned, it has to be noted that Sukhwant Singh case is not an authority for the proposition as submitted that whenever a bullet is not sent for ballistic examination the prosecution has to fail. In that case one of the factors which weighed with this Court for not finding the accused guilty was the prosecution's failure to send the weapon and the bullet for ballistic examination. In the instant case, the weapon

5 was not seized. That makes a significant factual difference between Sukhwant Singh case and the present case."

5. In view of the aforesaid, the High Court was in error in directing

acquittal of the respondents. The judgment of the High Court is set aside

and that of the trial Court is restored.

6. The appeal is allowed.

...............................................J. (Dr. ARIJIT PASAYAT)

............................................J. (ASOK KUMAR GANGULY) New Delhi;

March 03, 2009

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