SHYAM Vs. STATE OF M.P.

JUDGEMENT

(1.) IN this appeal the appellants challenge their conviction under sections 148 and 302 read with section 149 of the Indian Penal Code and sentence of two years Rigorous Imprisonment on the charge of riot and imprisonment for life and fine of Rs. 2,000 -00 each, in default Rigorous Imprisonment for six months on the charge of murder with direction for concurrent running of sentences recorded vide judgment dated 10.01.1987 passed in Sessions Trial No. 20/1986 of Hoshangabad Sessions Judge.

(2.) THE appellants and Harchand (PW -1) are residents of village Bhunnasa near Harda. Deceased Ramchand was Sarpanch of that village. On 5.9.1984 Ramchand had come to Harda to attend some Court work. After that he was going to Janpad office along with harchand. At a short distance from the Janpad office the deceased requested Harchand to follow on foot, himself got on his bicycle and proceeded towards the Janpad office. No sooner he reached in front of Janpad office building he was assaulted by the appellants with sharp edged wweapons. The appellants then made good their escape towards their village. Harchand, who had witnessed the assault from a short distance, came near the fallen victim and found him dead. This daring murder had taken place in board -day -light at 1300 Hrs. in a busy locality with shops near -about. Harchand lodged the First information Report (Ex. P -X) in Harda Police Station within twenty minutes at 1320 Hrs. Crime was registered. Station House Officer Shri P.N. Gupta (PW -8) reached the spot and held inquest vide Ex. P -13. He deputed police force to got in search of the miscreants. The dead body was sent for post -mortem examination. Dr. R.K. Garg (PW -8) vide autopsy report Ex. P -27 found twenty -one injuries on the body, eleven of which were caused by sharp edged weapon on vital parts which had involved both the lungs, the heart, the stomach, the intestines, the kidney and the liver. The head injury had resulted in fracture in the right parietal region where fragmented bones had caused subdural and extradural haematorna as shown in diagram in Ex. P -27. The cause of death, as per the Doctor, was syncope resulting from shock as a result of massive haemorrhage. The time of death was approximately within six hours from post -mortem examination which had taken place at 1630 Hrs. The injuries were held by the Doctor sufficient in the ordinary course of nature to cause death. The Doctor had found one blade of knife imbedded in one of the injuries. He removed the same and also removed the clothes found on the body and sent them in a scaled packet to the police along with his autopsy report. Within in a couple of hours from registration of the crime, the appellants were apprehended vide memorandums of arrest Ex. P -2 to P -6. During investigation, one Shirt and one Pajama (Articles E -1 and E -2) were seized from appellant Shyam vide seizure memorandum Ex. P -7. One Shirt and one Pant (Article F -1 and P -2) where seized from appellant Balram vide Ex. P -8. One Bush -shirt and one Pant (Articles D -1 and D -2) were seized from appellant Ramkishore vide Ex. P -9. One Shirt and one Pajama (Articles G -1 and G -2) were seized vide Ex. P -10 from appellant Gulab Singh. One Pant and one Shirt (Articles C -1 and C -2) were seized from appellant Ramnarayan vide Ex. P -11. The clothes and knife blade removed from the dead body by the Doctor were produced in a seazled cover by Constable Jugal Kishore before the Investigating Officer, who seized the packet vide memorandum Ex. P -12. Confessional memorandum of appellant Shyam being 'B' marked portion of Ex. P -17 was recorded at 1730 Hrs. on 5.9.84 by the Investigating Officer which led to the recovery of an iron rod and seized vide Ex. P -22. Similar memorandum of appellant Balram being portion marked -B and C of Ex. P -18 was recorded at 0905 Hrs. on 6.9.84 which led to the recovery of one Katar (Article -D) and seized vide Ex. P -23. Similar memorandum of appellant Ram Kishore being 'B' marked portion of Ex. P -19 was recorded at 0820 Hrs. on 6.9.84 which led to the recovery of one knife (Article -E) and seized vide Ex. P -24. Similar memorandum of appellant Gulab Singh being portion marked -B and C of Ex. P -20 was recorded at 0845 Hrs. On 6.9.84 which led to the recovery of a brass handle of a knife sans blade (Article -A), seized vide Ex. P -25. Similar memorandum of appellant Ramnarayan being 'B' marked portion of Ex. P -21 was recorded at 0830 Hrs. On 6.9.84 which led to the recovery of a Knife (Article -G), seized vide Ex. P -26. All these articles were after seizure duly sealed and along with some other material evidence, collected during investigation, sent for chemical examination to Forensic Science Laboratory, Sagar. The Chemical Examiner, vide his report Ex. P -31, confirmed presence of blood stains on all the above clothings and weapons seized from the appellants. He also confirmed presence of blood stains on the stained earth sample collected from the spot and the clothes found on the said dead body. All these articles were after examination sent by the Chemical Examiner to Serologist, Govt. of India, Calcutta, whose report is Ex. P -33 and 34 which shows that the Pant seized from the appellant Ram Kishore and the Shirt and Pant seized a from appellant Balram, the iron rod recovered at the instance of appellant Shyam and the clothes removed from the dead body were stained with human blood. The origin of blood on remaining articles could not be determined either due to disintegration or its insufficiency for test. Spot map Ex. P -16 was prepared by R.P. Patware (PW -4), Patwari in -charge Halka No. 25. Two of the accused, namely, Rambharose and Narayan were shown absconding in the charge -sheet. It appears, out of them Rambharose subsequently became available for trial and was acquitted. Narayan is still absconding.

(3.) DURING trial, evidence of Harchand (PW -1) was recorded on 25.3.86. Thereafter an application was made under section 311 of the Code of Criminal Procedure to recall the said witness for further cross -examination in the light of an inland letter produced by the defence to show that the said letter was written by the said witness wherein he admitted ignorance about this murder. On 31.3.86, the learned trial Judge after hearing passed the following order rejecting this application: cpko i{k ds izkFkZuki= varxZr /kkjk 311 naM lafgrk dk mÙkj vfHk;kstu i{k dh vksj ls izLrqr fd;k x;kA bl izkFkZuki= ij nksuksa i{kksa dks lquk ,oa fopkj fd;k x;kA bl izkFkZuk i= esa tks varnsZ"kh; i= lk{kh gjpan }kjk fy[kk gksuk n"kkZ;k x;k gS og gjpan }kjk gh fy[kk x;k gS ,slk fdlh vU; rF; ls izdV ugha gksrk gSA og i= 27 -3 -86 dks ,d O;fDr jkenhu }kjk vfHk;qDr ";ke ds ikik jkenhu iVsy dks nsuk izkFkZuk i= esa fy[kk gqvk gSA ;g i= 27 -3 -86 dks gh jkenhu us gjpan dks fn;k bldk Hkh dksbZ izek.k ugha fn;k x;k gSA ;g i= blh vijk/k ds laca/k esa fy[kk x;k gS ,slk Hkh i= dks ns[kus ls izdV ugha gksrk gSA lk{kh gjpan ls foLr'r :i ls izfrijh{k.k vfHk;qDr x.k ds rhuksa vfHkok'kdx.k us fd;k gSA ,slh fLFkfr esa ;g izkFkZuk i= ln~Hkkouk iwoZd fn;k x;k gS ,slk izdV ugha gksrk gS vkSj dsoy ;gh izdV gksrk gS fd izdj.k esa dsoy foyac dh n'f'V ls ;g izkFkZuk i= fn;k x;k gSA vr% fLFkfr ij ;g izkFkZuk i= Lohdkj fd;k tkuk U;k;ksfpr izrhr ugha gksrk gSA blfy, ;g izkFkZuk i= vLohdkj fd;k tkrk gSA** Subsequently Narayan (DW -3) was examined who proved the purported signature of Harchand Bada on the said inland letter which was marked Ex. D -10. It was vehemently argued that the rejection of defence application for recalling the said Harchand (PW -1) for further cross -examination in the light of Ex. D -10 was patently erroneous. The prosecution case was not closed by that time and, therefore, the reasons assigned for rejection of the said application that it was intended to delay the trial is on the fact of it untenable. This importnat letter reflected that the said Harchand had not seen the incident personally and his claim to be an eye witness in this case was false. Thus, the order passed by the learned trial Judge in this behalf has materially prejudiced the case of the defence and resulted in miscarriage of justice. It was urged that if the defence is afforded opportunity even at this stage to confront the said witness with contents of Ex. D -10, his falsity will be exposed.