Madhya Pradesh High Court
Khadak Singh vs State Of M.P. on 2 January, 2018
Author: Sheel Nagu
Bench: Sheel Nagu
Cra.470/1999, Cra. 661/1999, Cra. 595/2000 and Cra.164/2003
1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
PRESENT
DIVISION BENCH:
JUSTICE SHEEL NAGU
&
JUSTICE ASHOK KUMAR JOSHI
(Criminal Appeal No.470/1999)
Madho Singh & others
Vs.
State of Madhya Pradesh
Shri Atul Gupta, Advocate for the appellants.
Shri J.M.Sahani, Public Prosecutor for the respondent-State.
Connected with
(Criminal Appeal No. 661/1999)
Mohan Singh & others
Vs.
State of Madhya Pradesh
Shri Atul Gupta, Advocate for the appellants.
Shri J.M. Sahani, Public Prosecutor for the respondent-State.
Connected with
(Criminal Appeal No. 595/2000)
Khalak Singh
Vs.
State of Madhya Pradesh
Shri Atul Gupta, Advocate for the appellant.
Shri J.M.Sahani, Public Prosecutor for the respondent-State.
Cra.470/1999, Cra. 661/1999, Cra. 595/2000 and Cra.164/2003
2
And
(Criminal Appeal No. 164/2003)
Rambharosa
Vs.
State of Madhya Pradesh
Shri Atul Gupta, Advocate for the appellant.
Shri J.M.Sahani, Public Prosecutor for the respondent-State.
JUDGMENT
(Delivered on the 2nd day of January,2018) Sheel Nagu, J.
The aforesaid four Criminal Appeals arise out of the impugned judgment and order of conviction and sentence dated 25/9/1999 rendered in Sessions Trial No. 202/1993 by the First Additional Sessions Judge, Ashok Nagar, District Guna (M.P.). Since the judgment and order challenged in these criminal appeals is one, all the appeals are taken up together for consideration and final disposal by this common judgment.
2. Appellants Madho Singh, Radheshyam, Jugraj Singh in Criminal Appeal No. 470/1999, appellants Mohan Singh and Nihal Singh in Cri. Appeal No. 661/1999, appellants Khalak Singh in Criminal Appeal No. 595/2000 and appellant Rambharosa in Criminal Appeal No. 164/2003 stood trial on the charges levelled against them before the trial court and accordingly they were convicted and sentenced as detailed in the following table :-
Appellants Conviction Sentence Awarded
u/S.
Appellants Madho Singh 148 IPC 1 Year's R.I.
Radheshyam and Jugraj
Singh in Cra.470/99.
Cra.470/1999, Cra. 661/1999, Cra. 595/2000 and Cra.164/2003 3 302/149 IPC Life imprisonment with a fine of Rs. 2000/- with default punishment.
452 IPC 1 Year's R.I., with a fine of Rs. 1,000/- with default punishment.
307/149 IPC 10 Years' R.I. , with a fine of Rs. 1,000 with default punishment. 323/149 IPC 1 Year's R.I. Appellants Mohan Singh and 148 IPC 1 Year's R.I. Nihal in Cra. No. 661/99. 302/149 IPC Life imprisonment with a fine of Rs. 2000/- with default punishment. 452 IPC 1 Year's R.I., with a fine of Rs. 1,000/- with default punishment. 307/149 IPC 10 Years' R.I. , with a fine of Rs. 1,000 with default punishment. 323/149 IPC 1 Year's R.I. Appellant Khalak Singh in 148 IPC 1 Year's R.I. Cra. No. 595/00. 302/149 IPC Life imprisonment with a fine of Rs. 2000/- with default punishment. 452 IPC 1 Year's R.I., with a fine of Rs. 1,000/- with default punishment. 307/149 IPC 10 Years' R.I. , with a fine of Rs. 1,000 with default punishment. 323/149 IPC 1 Year's R.I. Appellant Rambharosa in 148 IPC 1 Year's R.I. Cra. No. 164/2003.
Cra.470/1999, Cra. 661/1999, Cra. 595/2000 and Cra.164/2003 4 302/149 IPC Life imprisonment with a fine of Rs. 2000/- with default punishment.
452 IPC 1 Year's R.I., with a fine of Rs. 1,000/- with default punishment.
307/149 IPC 10 Years' R.I. , with a fine of Rs. 1,000 with default punishment. 323/149 IPC 1 Year's R.I.
3. For the murder of one Bhagirath and for causing injury to injured Guddi Bai, Ashok, Ghisi Bai and Sarju, 10 accused were tried. Accused Kashiram died during trial proceedings and, therefore, remaining 9 were convicted as aforesaid. These are four appeals preferred by seven convicted persons leaving aside two persons, namely, Nimma and Diman Singh who have not preferred appeal against the impugned punishment.
4. Bare facts giving rise to the prosecution case are that Heeralal, Devi Singh and Kommod were real brothers. Heeralal who was issueless bequeathed his 40 bighas land to the complainant Ganeshram (son of Kammod) and since death of the said Heeralal, the complainant was in possession of the said land. Kashiram being son of Devi Singh and father of appellants Nimma, Mohan, Nihal, Khalak Singh and Rambharosi objected to the said benefit extended to the complainant Ganeshram. A panchayat was convened to resolve the dispute which led to a settlement that Kashiram would be paid Rs.5,000/- by the complainant, however, Kashiram insisted for an amount of Rs.35,000/-. It is said that fuelled by past animosity, on 21.05.1993 at about 08:00 am when complainant Ganeshram and his son Bhagirath (deceased) were sitting in front of their house on the Cra.470/1999, Cra. 661/1999, Cra. 595/2000 and Cra.164/2003 5 platform Samarath, PW-6 (Samdhi of the complainant) along with 10 accused approached the complainant. Among these accused Nimma @ Jaswant Singh was carrying a firearm while others had lathi and farsa in their hands. Samarath Singh told the complainant that he had a talk with Kashiram arriving at a settlement that complainant shall pay balance money to Kashiram. In response, the complainant agreed by saying that he would pay the money after bringing it from Banmori Tal. However, the accused, sons of Kashiram insisted for land instead of money. Son of the complainant Bhagirath (deceased) declined to part with the land in his possession. Enraged, Kashiram abused the complainant and exhorted other accused to kill and to eliminate the family of complainant Ganeshram. Thereafter, accused Nimma fired at Bhagirath who sustained chest injury. Complainant Ganeshram and his wife to prevent further damage took the dead body of the deceased and locked themselves in their house. Then, all the accused broke open the gate and entered the Aangan of the house of the complainant Ganeshram who to save himself locked himself up in one of the rooms of his house. In response to which, accused Mohan wielding a firearm climbed the roof, removed the earthen tiles and fired at the complainant who sustained gunshot injury in his hand while in the Aangan of house of complainant, other accused inflicted various injuries to complainant's wife Ghisi Bai, Ashok (son of the complainant), Guddi Bai (wife of Ashok) and Suraj Bai (wife of deceased Bhagirath). Prosecution case further disclosed that Harnam Singh (other son of the complainant Ganeshram) and Bharat Singh Bhadaur (son-in-law of Harnam) were coming home in a bus at about 07-08 am on the fateful day when they were told on the way by Sarpanch Shivraj Singh Raghuvanshi that they should not go home as Bhagirath and Ganeshram have been shot at by accused Nimma who may also kill them. On hearing this news, both Harnam Cra.470/1999, Cra. 661/1999, Cra. 595/2000 and Cra.164/2003 6 and Bharat Singh returned to Shadhora. While returning when they passed village Mohari they saw accused Jaswant wielding a firearm, accused Nihal Singh wielding a farsa and accused Mohan wielding a firearm blocking the way of their bus. However, on the insistence of Harnam and Bharat the driver did not stop the bus.
5. The incident was reported to the Police on the same day which led to registration of Crime No.44/1993 vide FIR (Ex.P/1) alleging offences punishable u/Ss. 302,307,452,147,148 and 149 I.P.C. After completing the necessary formalities charge sheet was filed and the case was committed to the Court of Sessions where charges were framed. Charge u/S. 302 IPC simplicitor was framed against accused Nimma @ Jaswant Singh whereas remaining 9 accused were charged with Sec. 302/149, 307/149, 148, 452 and 323/149 IPC. Accused Mohan Singh was also charged u/S. 307 IPC.
6. In the trial Court, apart from tendering and proving documentary evidence, the prosecution examined as many as 15 witnesses, namely, Ganeshram (PW-1), Ghisibai (PW-2), Sarjubai (PW-3), Harkuwar Bai (PW-4), Harnam Singh (PW-5), Samrath (PW-6), Ashok (PW-7), Dr. Ramvir Singh Raghuvanshi (PW-8), Dr. D.K.Jain (PW-9), Guddi Bai (PW-10), Dr. R.K.Jain (PW-11), Kailash (PW-12), Bundel Singh (PW-13), M.P.Singh (PW-14) and Rakesh Jain (PW-15).
7. The appellant accused abjured guilt and sought trial. Plea of false implication was also raised. Accused Nimma, Rambharose and Khalak Singh further raised plea of alibi. In support of defence,DW-1 Mangilal, DW-2 Shankar Singh, DW-3 Komal Singh, DW-4 Hamir Singh and DW-5 Gyarsa were examined coupled with exhibiting seven Cra.470/1999, Cra. 661/1999, Cra. 595/2000 and Cra.164/2003 7 documents marked as Ex.D/1, to Ex.D/7.
8. The Trial Court, after considering the evidence adduced on record and considering the statements of PW-1 to PW-4 namely Ganeshram, Ghisibai, Sarjubai, Harkunwar Bai and PW-6, PW-7 and PW-10, namely, Samarath, Ashok and Guddi Bai who were eyewitnesses to the incident convicted and sentenced the appellants herein in the manner reflected supra.
9. Learned counsel for the appellants has tried to point out certain lacunae in the prosecution story which were wrongly ignored by the learned Trial Court. It is submitted by the counsel for the appellants that there was no past animosity between Madho Singh, Dhiman Singh and Jugraj Singh on one hand and the complainant on the other therefore, their conviction in absence of motive is uncalled for. It is submitted that on the question as to who climbed the roof and shot at the complainant is a fact which could not be established by the prosecution beyond all reasonable doubts. For this purpose, learned counsel for the appellants has taken us through the depositions of Ganeshram (PW-1), Ghisibai (PW-2) and Sarjubai (PW-3) who have stated that accused Mohan climbed the roof whereas learned counsel submits that perusal of testimony of Harkunwar Bai (PW-4) disclosed that accused Nimma had climbed the roof.
10. Learned counsel for the State, on the other hand, has pointed out from the spot map Ex.P-12 that the incident took place at and inside the house of the complainant which is clear indication of appellants being aggressors. As regards attraction of Section 149 IPC, learned State counsel contends that all the appellant came together Cra.470/1999, Cra. 661/1999, Cra. 595/2000 and Cra.164/2003 8 armed with deadly weapons and started abusing and assaulting the complainant and his family members who admittedly were bare handed. It is argued that apprehension of Sarpanch Shivraj Singh is also a clear indication that the appellants had come with an intention to terminate the life not only of the complainant but also of all his family members. It is further submitted that the presence of appellants right from the incident when the complainant and his son were abused and fired at to the time of breaking open the door and entering the Aangan inside the house of the complainant and one of the appellants climbing the roof to cause gunshot injury to the complainant, are clear indications of the appellants nursing common intention of causing murder. It is further submitted that ocular evidence is supported by medical evidence where the gunshot injury to the deceased is opined to be cause of death. Several injuries including the grievous ones sustained by the other injured are also corroborated by the MLCs which were proved by Dr. Ramvir Singh Raghuvanshi PW-8 and Dr. D.K.Jain PW-9. It is further submitted that contradictions between the statements of Ganeshram (PW-1), Ghisibai (PW-2) and Sarjubai (PW-3) on one hand and the testimony of Harkunwarbai (PW-4) on the other in regard to the fact as to whether appellant Mohan or Nimma had climbed the roof, the same fades into insignificance in view of name of accused Mohan having been categorically taken by not only Ganeshram (PW-1) but also by Ghisibai (PW-2), Sarjubai (PW-3), Ashok (PW-7) and Guddi Bai (PW-
10). Thus, the testimony of Harkunwar Bai (PW-4) having seen Nimma climbing the roof ought to be ignored.
11. After going through the record and perusing the testimony of eyewitnesses, this Court is of the considered view that the judgment of conviction and sentence passed by the learned trial court is in Cra.470/1999, Cra. 661/1999, Cra. 595/2000 and Cra.164/2003 9 accordance with law and the same need not be disturbed by this Court for the reasons infra.
11.1 The factum of deceased Bhagirath having died of gunshot injury has been found to be proved by the medical evidence of Dr. Ramveer Singh Raghuvashi (PW-8) who found one entry would in the chest and one exit wound at the back of deceased Bhagirath. Besides, there were several punctured wounds on the chest and arm and the lower part of the mouth from which various pellets were extracted. A bruise was also found on the left side of the neck.
11.2 The injured Ganeshram (PW-1), Ghisibai (PW-2), Sarjubai (PW-
3) and Ashok (PW-7) were subjected to medical examination and were found to have sustained grievous and simple injuries. Out of the said injured eyewitnesses/PWs, complainant Ganeshram (PW-1) sustained five injuries out of which four were by gunshot. This corroborates the ocular evidence of the eyewitnesses that they saw one of the accused Mohan climbing the roof, removing the earthen tiles and shooting the complainant Ganeshram who had locked himself in one of the rooms of his house. One of these gunshot injuries sustained by the complainant also caused fracture. Other injured Ghisibai (PW-2), Sarju Bai (PW-3) and Ashok (PW-7) sustained incised injuries, bruises and abrasions which were opined to be caused by sharp and cutting weapons and as well as hard and blunt object. This medical evidence corroborates the ocular evidence that the appellants were wielding and had used Farsa and Lathi.
11.3 The issue of past animosity between the accused Kashiram and his son only and not against Madho Singh, Diman Singh and Jugraj Singh fades into insignificance and cannot be available to the Cra.470/1999, Cra. 661/1999, Cra. 595/2000 and Cra.164/2003 10 appellants since all the 10 accused including the said Madho Singh, Diman Singh and Jugraj Singh came to the spot armed with weapons and had actively participated in the entire incident from the initial stage of hurling of abuses and exhortation till breaking open of the gate, entering into the Aangan of the complainant, climbing the roof and also attempting to stop the bus carrying Harnam Singh (son of the complainant) and Bharat Singh (son-in-law of Harnam Singh). The intention to kill Bhagirath and his family member was a common fiber which ran through the fabric of mind of all the appellants thereby constituting the common intention contemplated by Sec. 149 IPC.
11.4 The fact that one of the prosecution witnesses i.e. Harkunwar Bai (PW-4) stated that it was accused Nimma and not Mohan who climbed the roof to cause gunshot injury to the complainant is of no avail to the appellants as this revelation gets outweighed the categorical testimony of all the other eyewitnesses who have stated in one voice that it was accused Mohan who claimed the roof to cause gunshot injury to the complainant. Even if this aspect is assumed to be correct yet the fact remains that the entire episode beginning from the congregation of 10 accused armed with weapons and approaching the complainant and his family members till breaking open of the gate and entering the house of the complainant and climbing the roof to cause gunshot injury has been categorically and elaborately described by all the eyewitnesses i.e. Ganeshram (PW-1), Ghisibai (PW-2), Sarjubai (PW-3), Samarth (PW-6), Ashok (PW-7) and Guddi Bai (PW-10) in unison.
12. From the above discussion, it is evident that the charge of murder simplicitor and as well as with the aid of Section 149 IPC and Cra.470/1999, Cra. 661/1999, Cra. 595/2000 and Cra.164/2003 11 other charges for attempt to murder along with house-trespass for causing hurt and assault after breaking open the gate and of rioting by the members of unlawful assembly has been rightly held to be proved beyond reasonable doubt by the trial court.
13. In view of the above, this Court deems it appropriate not to interfere with the just, reasonable and well-considered findings rendered by the court below.
14. Accordingly, all the four (4) appeals fail and are dismissed.
15. The appellants are on bail. Their bail bonds and surety bonds shall stand cancelled. They are directed to surrender in the trial Court to serve the remainder of the sentence forthwith failing which the trial court shall take steps to apprehend them for suffering the remaining period of sentence awarded.
(Sheel Nagu) (Ashok Kumar Joshi)
Judge Judge
2/01/2018 2/01/2018
(Bu)
DHANANJAYA BUCHAKE
2018.01.03 11:29:04
+05'30'