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A.K. Shrivastava and Smt. Sushma Shrivastava, JJ.
Chhaabilal and another v. State of M.P.
Criminal Appeal No.1108 of 1999 (Jabalpur) : against the judgment of
II Additional Sessions Judge, Tikamgarh, passed in
Sessions Trial No.37 of 1995; Decided on 4.11.2008.
(2) Evidence Act, 1872 -- S.60 -- factum of causing gun shot from close range not stated in FIR and police statements -- stated in Court to fit their testimony to post-mortem report -- presence of eye-witnesses becomes doubtful.
If we marshal the evidence of the above three eye-witnesses, it is gathered that all of them are saying in singular voice that at a close range of 3-4 ft., gun shot was fired by appellant Mathura to the deceased. The factum of causing gun shot from a close range has not at all been stated in the written report Ex.P-1 nor in the case diary statement of any eye-witness. Seeing occurrence from the close distance is also doubtful because the presence of eye-witnesses seeing the incidence from a place of 50-55 ft. has been shown in the spot map.
Thus, it raises heavy doubt about the presence of eye-witness at the time of the occurrence. According to us, all the eye-witnesses are saying that gun shot was fired by Mathura from a close range of 3-4 ft. in order to fit their testimony to the post-mortem report Ex.P-10. Modis Medical Jurisprudence and Toxicology 22nd Edn. page 356 relied on. 1999(1) MPWN 71 (SC) followed. [Paras 25 & 26
(3) Evidence Act, 1872 -- S.60 -- no electric pole shown in spot map -- no source of light -- 55ft. distance shown where witnesses were standing -- they cannot see the incident from such distance. AIR 1983 SC 680 and AIR 2004 SC 3305 distinguished. (2006)10 SCC 542, AIR 2005 SC 2110, AIR 1979 SC 1042 and AIR 1975 SC 1727 followed. [Para 29
(4) Criminal P.C., 1973 -- Ss.157 and 154 -- compliance of S.157 not made because of ante-time and ante-dated FIR -- fact of compliance has to be proved by prosecution -- it is a serious lapse going to the root of the case.
A Court cannot take judicial notice of the compliance of section 157 CrPC, but it has to be proved like any other fact.
Since copy of FIR has not been sent to the Magistrate and there is no iota of evidence in the case diary in this regard, according to us, this amounts to a serious lapse on the part of the investigating agency going to the root of the matter and hammers the authenticity of prosecutions case. AIR 1978 SC 59 followed. AIR 2006 SC 887 and 2006 SAR (Criminal) 228 (SC) distinguished. [Para 30
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Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 3.4.1999 passed by learned 2nd Additional Sessions Judge, Tikamgarh in Sessions Trial No.37/95 convicting the appellant Mathura under section 302, IPC and appellant-Chhabilal under sections 302/34, IPC and sentencing them to suffer imprisonment of life and fine of Rs.500/- each, in default of payment of fine, further SI of one month each, the appellants have preferred this appeal under section 374(2) of Code of Criminal Procedure, 1973.
2. In brief, the case of prosecution is that on 27.7.1994 at 8:00 p.m. in village Tanga, Narendra Singh (hereinafter referred to as "the deceased") was talking to Harimohan. His brother Devendra and witness Daulat arrived here from village Bamhori Abada to call the labours. All these persons were standing there, at that juncture, one tractor came. The deceased raised his hands to stop this tractor but it did not stop, as a result of which deceased started chasing it. In between appellants came from a Gali (lane) and asked who is there, on this, deceased told that I am Narendra, thereafter it is said that appellant-Chhabilal asked Mathura Maro, as a result of which Mathura fired the gun on the deceased, and eventually deceased fell down. Thereafter, appellants fled from the place of occurrence. The persons present there namely Devendra, Harimohan and Daulat uplifted the deceased and brought him inside the house of Harimohan, however, deceased could not survive and he died.
3. It is the further case of prosecution that last election was fought by deceased and appellant Chhabilal and there was election rivalry between them. The brother of the deceased Devendra got the report written by one Sanjay and the said written report was given in the police station on the date of incident in the night.
4. On lodging of the first information report, criminal law was triggered and set in motion. A case was registered against the appellants. The investigating agency arrived at the spot; prepared Panchayatnama of the dead body and sent it for post-mortem; prepared the spot map; recorded the statement of the witnesses; on the basis of the memorandum statement of appellant-Chhabilal, one empty cartridge of 12 bore was recovered. The gun and the cartridge were sent to ballistic expert. After the investigation was over, a charge-sheet was submitted in the committal Court which, on it turn, committed the case to the Court of Session and from where it was received by the trial Court for its trial.
5. Learned trial Judge, on the basis of the averments made in the charge-sheet, framed charge against appellant Mathura under section 302, IPC while charge under section 302/34 of IPC was framed against appellant Chhabilal. Needless to emphasis, both the appellants abjured their guilt and requested for trial.
6. In order to bring home the charges, prosecution examined as many as 10 witnesses and placed Ex.P-1 to P-21, the documents on record. The defence of appellants is of false implication on account of election rivalry and in support of their defence, they examined Paltu (DW1), Kure (DW2), Ramkishore Pathak (DW3), Vishwanath Pathak (DW4), Kanti Devi (DW5), Churbara (DW6), Munna (DW7), Shivlal (DW8) and Ganpat (DW9).
7. Learned trial Judge, on the basis of the evidence placed on record, came to hold that appellant Mathura has committed the offence under section 302, IPC while appellant Chhabilal committed the offence under section 302/34, IPC, accordingly, learned trial Court convicted them and passed the sentence which we have already mentioned herein above.
8. In this manner, the present appeal has been filed by the appellants assailing their judgment of conviction and order of sentence.
9. It has been argued by Shri Jagat Sher Singh, learned counsel for the appellants, that Devendra is the brother of the deceased and other eye-witnesses Harimohan and Daulat are the chance witnesses. The contention of learned couns
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