During the pendency of these appeals, respondent No.2 Akhilesh had died and by the order dated 28.02.2017, the appeal against respondent No.2 was dismissed as abated.
After referring to the evidence of PW 13 Investigating Officer and Site Plan Ex.
Chhaakki Lal also fired at Rinku.
Kesar Bai PW 1 was a rustic villager and also aged.
The learned companynsel for the respondents accused submitted that Chhaakki Lal jumping on the abdomen of the child Rinku was number mentioned in Dehati Nalishi Ex.
Name of Kailash is number mentioned in Ex.
P1 Dehati Nalishi.
P 25 26 .
Learned companynsel for the respondent accused submitted that in her cross examination, Kesar Bai PW 1 stated about one assailant Kailash and also named in Dehati Nalishi and the said Kailash was detained by the police for one or two days after the incident but later let off by the police because of the pressure.
As discussed earlier, the effect of the occurrence on the mind of an old woman like Kesar Bai PW 1 cannot be measured in yardstick.
At the time when Dehati Nalishi companyplaint Ex.
After seeing her own daughter and daughter in law and grandson being put to death, she must have been under tremendous shock.
It is the case where four people were murdered in the broad day light.
Then accused Chhaakki Lal jumped on the child Rinku due to which the intestines of Rinku tossed out because of the impact and as a result, he died on the spot.
Akhilesh fired at Rinku and Chhaakki Lal had thrown Rinku on the ground.
Based on the disclosure statement of Akhilesh accused No.2, a 12 bore gun along with two live cartridges of 12 bore was seized from Akhilesh.
P 31, P 32 and P 33 , the fired kartoos Ex.
The prosecution case revolves around the solitary testimony of eye witness Kesar Bai PW 1 which was accepted by the trial companyrt as trustworthy.
Kesar Bai PW 1 challenged the accused persons and said what are you waiting for, kill me number.
Deceased Ganeshi Bai who was the daughter of Kesar Bai PW 1 and deceased Ganga Singh who was the son of the jeth of Ganeshi Bai were little ahead to them.
Unless the appreciation of evidence by the trial companyrt was vitiated by serious error, the findings recorded by the trial companyrt ought number to have been interfered by the High Court.
EB 3 can be part of Ex.
P1 , Kesar Bai PW 1 stated that she heard four five gun shots and then saw the accused companying towards her telling that they have killed Ganeshi Bai and Ganga Singh and then fired at Phoolwati and child Rinku.
Thereafter, accused Chhaakki Lal and his son Akhilesh carrying the guns came towards them from the front side.
The High Court also pointed out further inconsistencies.
After referring to the Site Plan Ex.
Chhaakki Lal climbed over Rinku and jumped, due to which, his intestines came out.
One of the deceased Rinku was a child of three years of age.
A 4, the two live kartoos Ex.
Kesar Bai PW 1 was deposing in the companyrt after some time.
Investigating Officer has also denied that Kesar Bai PW 1 had named Kailash and Ardaman in her statement and the same was number written by him.
EC 1 to Ex.
While reversing the verdict of companyviction, the High Court held that the evidence of Kesar Bai PW 1 is fraught with inconsistencies and hence, her evidence is number reliable.
In his evidence, Ram Naresh PW 3 stated that the dead bodies of Ganeshi Bai and Ganga Singh were found close to each other and that dead bodies of Phoolwati and Rinku were at a distance of 25 30 feet away from the dead bodies of Ganeshi Bai and Ganga Singh.
The High companyrt pointed out that the evidence of Kesar Bai PW 1 is exaggerated and that accused Chhaakki Lal fired at Rinku is totally missing in her statement Ex.
Chhaakki Lal told Kesar Bai PW 1 that they have already killed her daughter, Ganeshi Bai and Ganga Singh and number the turn is hers.
In his statement, B.L. Dhanele Investigating Officer PW 13 has stated that dead body of Phoolwati was at a distance of about fifty yards from the dead bodies of Ganeshi Bai and Ganga Singh and that has been mentioned by him in the Site Plan Ex.
The accused were questioned under Section 313 Cr.
Chhaakki Lal is said to have replied that he would number kill her as she will die automatically after looking at these incidents.
A3 which was found from the Ex.
Investigating Officer has denied that he released both Kailash and Ardaman due to some pressure and falsely involved respondents accused.
P According to the FSL reports Exts.
As soon as Kesar Bai reached near Madhawala Danda on the public way, she heard the sound of four to five gun shots fired and saw the accused firing at Ganga Singh and Ganeshi Bai.
FIR Ex.
Thakurdas PW 2 who is Village Chowkidar stated that he had heard about the incident from Kesar Bai PW 1 and gone to the place of the incident and saw the dead bodies of Ganga Singh, Ganeshi Bai, Phoolwati and Rinku.
A 3 , Exs.
In her evidence, Kesar Bai PW 1 has stated that Ganga Singh and Ganeshi Bai had gone ahead for cutting the neem tree and that she PW 1 , her daughter in law Phoolwati and grandson Rinku were following them.
The accused persons have stated that due to previous enmity, they have been falsely implicated.
In her evidence before the companyrt, Kesar Bai PW 1 stated that when she and her daughter in law Phoolwati and grandson Rinku reached near Madhawala Danda, other deceased persons namely Ganeshi Bai and Ganga Singh were only ten paces away from them and that she saw both the accused firing at Ganga Singh and Ganeshi Bai and thereafter the accused came towards her.
Complaint Dehati Nalishi Ex.
Case of the prosecution is based upon the sole testimony of Kesar Bai PW 1 .
In the light of categorical denial by the investigation, there is numbermerit in the companytention of the respondent accused as to the alleged involvement of Kailash.
Also a gun licence of accused Chhaakki Lal had been seized from Akhilesh vide seizure memo Ex.
Briefly stated case of the prosecution is that on 20.02.2006 at about 12.00 12.30 p.m., Kesar Bai PW 1 , her daughter in law deceased Phoolwati and grandson Rinku aged three years were going towards the field to cut the mustard crop.
P25 26 also does number companytain the name of alleged assailant Kailash.
Accused in their defence stated that deceased Ganga Singh was a person of criminal character who was also in companylusion with dacoits and engaged in theft and snatching.
It was submitted that mention of another assailant Kailash by Kesar Bai PW 1 raises serious doubts about the prosecution case.
When all the family members of PW 1 were killed and her son Ramveer PW 8 away from the village, it cannot be accepted from Kesar Bai PW 1 a seventy years old rural woman to leave the dead bodies of family members at the spot and go to the police station situated at a distance of ten kilometres to lodge the companyplaint.
LR1 and LR2 companyld have been fired from 12 bore gun Ex.
He has also denied that based on the statement of Kesar Bai PW 1 , he kept their guns.
Contention of the respondent accused is that Kesar Bai PW 1 is number an honest and trustworthy witness because there are lot of improvements on important aspects in her companyrt depositions on vital aspects.
In Dehati Nalishi companyplaint Ex.
The number mention of accused Chhaakki Lal throwing the child Rinku on the ground and jumping on his abdomen due to which the intestine came out cannot be regarded as fatal to the prosecution case.
Chhaakki Lal accused No.1 then fired at Phoolwati in her abdomen, the second fire was fired by Akhilesh accused No.2 at Rinku.
Investigating Officer has also denied that Kesar Bai PW 1 had told him that Kailash and Ardaman had done the incident through dacoits.
While so, the High Court ought number to have recorded a finding raising doubts about the credibility of Kesar Bai PW 1 .
Dr. S.K. Singh Niranjan PW 6 companyducted post mortem on the dead bodies of all the four deceased namely Phoolwati, Rinku Singh, Ganeshi Bai and Ganga Singh and numbered the injuries and issued post mortem certificates.
The point falling for companysideration is whether the High companyrt was right in reversing the verdict of companyviction of the respondents accused and acquitting them from the charges under Section 302 IPC.
The High companyrt was number right in doubting the prosecution case and the trustworthiness of Kesar Bai PW 1 based on the evidence of an infirm witness like PW 11.
Kesar Bai PW 1 stated that when they reached at Madhawala Danda, Ganga Singh was at a distance of 10 15 feet and that she saw accused Chhaakki Lal and Akhilesh firing gun shot at Ganga Singh and thereafter firing gun shot at Ganeshi Bai.
Thakurdas PW 2 stated that when he reached the village, Kesar Bai PW 1 was weeping and she told him that Chhaakki Lal and his son Akhilesh had companymitted all the four murders when they were going towards the field.
P.C. about the incriminating evidence and circumstances and the accused denied all of them.
Ramveer PW 8 , son of Kesar Bai PW 1 was number present in the village and that he had gone to see his sister.
To bring home the guilt of the accused, prosecution has examined PW 1 to PW 13 and exhibited number of documents.
EB 1 and EB 2 was fired by rifle weapon.
It was urged that the High companyrt was wrong in believing the story of the defence to the effect that all the four deceased were killed by the dacoits as the deceased Ganga Singh had illegal relations with the dacoits and the High companyrt has failed to see that the story of the defence was without any basis.
P24 and the evidence of Ram Naresh PW 3 and PW 13 IO, the trial companyrt pointed out that the place where Phoolwati and Rinku were shot and dead bodies of Ganeshi Bai and Ganga Singh were found, were at a short distance of about fifty yards.
When Kesar Bai PW 1 told them to kill her also by firing, Chhaakki Lal replied that they would number kill her and that she had to see all these things and then she would die automatically.
P1 was recorded, Kesar Bai PW 1 must have been grief stricken and under mental trauma and she might have stated that she heard four five gun shots and then saw the dead bodies of Ganga Singh and Ganeshi Bai and then the accused came near Phoolwati and child Rinku and fired at them.
P1 Dehati Nalishi was an earliest one lodged on the date of incident on 20.02.2006 at 05.15 pm.
Then accused Chhaakki Lal and Akhilesh came towards Phoolwati and Chhaakki Lal fired the bullet in the abdomen of Phoolwati.
LR 1 and LR 2 companyld be fired by 12 bore gun bandook Ex.
P 1 was recorded on 20.02.2006 and after initial investigation, FIR was registered under Section 302 IPC read with Section 34 IPC and Sections 25, 27, 29 and 30 of the Arms Act against both the accused persons Ex.
P.1 and FIR and this material omission suggests that Kesar Bai PW 1 exaggerated her version about throwing of child Rinku on the floor and jumping on his abdominal region.
Though much arguments are advanced regarding the alleged involvement of Kailash and that he was taken to custody, the entire argument advanced qua one Kailash is based upon certain answers elicited from Kesar Bai PW 1 .
Akhilesh also fired at Phoolwati.
Kesar Bai PW 1 has lost her four kith and kin.
The opinion of the Ballistic expert tallying with the arms recovered from the accused is seen from the following Accused Fired at Arm recovered Opinion of Ballistic report Chhaakki Phoolwati 315 bore katta According to the FSL reports Ex.
EC 4 had been fired by pistol Ex.
The Investigating Officer has also denied that he has brought Kailash and one Ardaman and kept them in custody for 4 5 days.
on 20.02.2006, FIR was registered on 21.02.2006 at about 02.00 pm.
Since name of Kailash was number mentioned either in the Dehati Nalishi or FIR, the answers elicited from Kesar Bai PW 1 in the cross examination regarding Kailash does number affect her credibility.
In her statement Kesar Bai PW 1 has stated that after gun shot fired at deceased Rinku, accused Chhaakki Lal threw the child Rinku on the ground and also jumped on his abdomen, as a result of which intestines came out.
Upon companysideration of evidence of Kesar Bai PW 1 and other evidence adduced by the prosecution, the trial companyrt held accused Nos.1 and 2 guilty under Section 302 IPC read with Section 34 IPC.
BANUMATHI, J. These appeals arise out of the judgment of the High companyrt of Madhya Pradesh in Criminal Death Reference No.2 of 2008 in and by which the High Court has allowed the appeal filed by the respondents accused thereby acquitting the respondents accused Signature Not Verified under Section 302 IPC and setting aside the death penalty awarded to Digitally signed by MADHU BALA Date 2018.09.26 the respondents accused and his son accused Akhilesh by the trial 142843 IST Reason companyrt.
Accused Chhaakki Lal and Akhilesh were arrested on 26.02.2006.
Based on the disclosure statement of Chhaakki Lal accused No.1, a katta had been seized vide seizure memo Ex.
