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2008 (1) Crimes 295 (M.P.)
MADHYA PRADESH HIGH COURT
A.P. Shrivastava, J.
Radheshyam —Appellant
versus
State of M.P. —Respondent
Criminal Appeal No. 174 of 2001
Decided on 30-11-2007
Counsel for the Parties:
For the Appellant:Shri Raj Kumar Singh Kushwah, Advocate
For the Respondent: Shri V.S. Chaturvedi, Public Prosecutor
IMPORTANT POINT
When evidence of eyewitnesses is trustworthy, delay in sending report under Section 157 CrPC will not affect the prosecution case.
Headnote:Indian Penal Code, 1860—Section 304 (1) and 324—Appellant with other co-accused armed with ballam and lathi assaulted deceased and PW1 and 2 also sustained injury—Dispute was over grazing of cattle in the field of deceased—Deceased succumbed to injuries in hospital—PW1, 2 and 3 eyewitnesses supported the prosecution case but PW5 and 6 independent witnesses turned hostile —Trial Court convicted appellant and awarded sentence of 10 years imprisonment and other accused were acquitted—Appeal—Evidence of PW1, 2 and 3 showed that they were present on spot and witnessed the incident—Fatal injury on head of deceased was caused by appellant—Contradictions and omissions in their evidence were not material—Delay of 4 days in sending FIR to Magistrate under Section 157 CrPC could not affect the prosecution case when evidence of PW1, 2 and 3 were trustworthy—Conviction of appellant suffered no illegality and sentence also called for no interference. (Paras 19 to 23)
Result: Appeal dismissed.
JUDGMENT
A.P. Shrivastava, J.—Appellant has preferred this appeal against the judgment of conviction and sentence, dated 31.1.2001 passed by IVth Additional Sessions Judge, Morena (M.P.) in S.T. No. 95/95, by which the appellant has been convicted under Section 304(I) of IPC and sentenced to undergo rigorous imprisonment for ten years with a fine of Rs. 5,000 and under Section 324 of IPC, sentenced to undergo rigorous imprisonment for two years with a fine of Rs.1,000 with default stipulation.
2. As per the prosecution story, on 20.8.94 in the evening at about 5.30 at village Singpura, Mule Singh, the cousin of informant Sobran Singh (PW2) was in the field and appellant Radheshyam along with co-accused Pappu and Sobir were grazing cattle in the field. Mule Singh opposed for grazing the cattle in the field. Thereafter, the accused and co-accused Sobir (who tried by Juvenile Court) came with ballam, farsa, lathi and gun. Appellant Radheshyam inflicted injury by ballam to the head of Mule Singh by which he fell down on the ground. Co-accused Jai Singh and Ahibaran Singh also inflicted lathi blows to him. On hearing the noise of Mule Singh, Kamal Singh (PW1) and Udaybhan Singh (PW3) came on the spot. Then Radheshyam inflicted ballam blow to the chest of Kamal Singh (PW1) and co-accused Surajbhan inflicted injury to Udaybhan by farsa. Sobran Singh (PW2) also sustained injuries by co-accused. Mule Singh was unconscious and thereafter he was taken to the police station by Sobran Singh (PW2 ) and on the same night, report was lodged at the police station which is Ex. P3 on the basis of which First Information Report was lodged at the police station. Mule Singh was referred to Morena Hospital from where he was referred to J.A. Hospital and during the course of treatment, he died on 4.9.94. After completion of investigation, charge-sheet was filed under Sections 302, 307, 147, 148 and 149 of IPC before the competent Court against eight accused persons including the present appellant (accused No.1). After conclusion of trial, the trial Court convicted and sentenced the present appellant accordingly as stated in para one of this judgment but the remaining accused persons were acquitted by learned trial Court.
3. Being aggrieved by the judgment of conviction and sentence, this appeal has preferred by the appellant.
4. The main submission of the learned counsel for the appellant is that the prosecution examined three eyewitnesses, namely, Kamal Singh (PW1), Sobran Singh (PW2) and Udaybhan Singh (PW3). It is submitted by him that independent witnesses, namely, Suresh Singh (PW5) and Ram Snehi (PW6) who were examined by the prosecution, turned hostile and not supported the prosecution case while Kamal Singh (PW1), Sobran Singh (PW2) and Udaybhan Singh (PW3) are relatives of the deceased and they were reached at the spot after the incident, therefore, they cannot be treated as eyewitnesses. Further, it is submitted that during the testimony of the witnesses, the spot of occurrence has also changed and the statements of the witnesses have recorded after eight days of the incident. Further, the report under Section 157 of Cr. P.C. was sent to the Magistrate after eight days of the incident.
5. On the other hand, learned counsel for the respondent/State submits that it is not correct that the spot of occurrence has changed and the eyewitnesses, namely, Kamal Singh (PWl), Sobran Singh (PW2) and Udaybhan Singh (PW3) were reached at the spot immediately and saw the occurrence.
6. The case rests only on the testimony of eyewitnesses, namely, Kamal Singh (PW1), Sobran Singh (PW2) and Udaybhan Singh (PW3) while Suresh Singh (PW5) and Ram Snehi (PW6) turned hostile. Kamal Singh (PWl) deposed that the incident took place on 20.8.94 in the evening at about 5.30. The appellant belonged to same village and there was no previous enmity before this incident. The dispute arose due to grazing cattle in the field. Appellant along with other co-accused came to
