Madhya Pradesh High Court
The State Of M.P. vs Hippi @ Satyendra & Ors on 6 November, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2024:MPHC-JBP:54842
1 CRA-150-1996
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 6 th OF NOVEMBER, 2024
CRIMINAL APPEAL No. 150 of 1996
SUNIL KUMAR AND OTHERS
Versus
THE STATE OF M.P.
Appearance:
Shri Manish Datt - Senior Advocate assisted by Shri Siddharth Datt - Advocate for the
appellants.
Shri Ajay Shukla - Government Advocate for the respondent/State.
WITH
CRIMINAL APPEAL No. 725 of 1996
THE STATE OF M.P.
Versus
HIPPI @ SATENDRA AND OTHERS
Appearance:
Shri Ajay Shukla - Government Advocate for the appellant/State.
Shri Prahlad Chourasia - Advocate for respondents.
ORDER
Per: Justice Vivek Agarwal At the outset, it is appropriate to mention that the appellant No.1 - Chandmal died on 23.11.1998 and the appeal stood abated qua appellant No.1 vide order dated 12.07.1999; Appellant No.3- Sushil Kumar S/o Chandmal Sondhiya died on 08.09.2020 and the appeal stood abated qua Appellant No.3 vide order dated 13.09.2024; it is informed that Appellant Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20 NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 2 CRA-150-1996 No.5 - Dr. Shripal Dodiya S/o Shikhar Chand Dodia died on 08.09.2020, a fact which is not disputed by Shri Manish Datt, Sr. Advocate and hence, the appeal stands abated qua Appellant No.5; Appellant No.6 - Prakash Chand Sondhiya S/o Pyarelal Sondhiya is no more and the appeal stood abated qua Appellant No.6 vide order dated 19.02.2001. Accordingly, Criminal Appeal No.150/1996 qua Appellant No.1, Appellant No.3, Appellant No.5 and Appellant No.6 is dismissed as abated.
Shri Manish Datt, learned Senior Counsel submits that the appellant No.2 - Sunil Kumar S/o Dr. Shripal Dodia has been released on Probation and, therefore, he is not pressing this appeal qua Appellant No.2 - Sunil Kumar. Accordingly, the appeal stands dismissed qua Appellant No.2 -
Sunil Kumar as not pressed.
Similarly as far as State appeal i.e. CRA No. 725 of 1996 is concerned, respondent No. 1 Prakash Chand Sondia is dead. It stands abated qua respondent No.1 Prakashchand Sondia and it survives for other five accused persons.
In view of the above, the appeal filed by the accused -appellants survives only in respect of Appellant No.4- Vinit Kumar; Appellant No.7 - Hippi @ Satendra; Appellant No.8 - Sunil Sondhiya; and Appellant No.9 - Navneet. Let necessary corrections be carried out during course of the day.
It is submitted that in CRA No. 150 of 1996 (Sunil Kumar & Ors. Vs. State of M.P.) there are 09 appellants namely Chandmal S/o Lakhmi Chand Sondhiya, Sunil Kumar S/o Dr. Shripal Dodia, Sushil Kumar S/o Chandmal Sondhiya, Vinit Kumar S/o Prakash Chand Sondhiya, Dr. Shripal Dodia S/o Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20 NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 3 CRA-150-1996 Shikhar Chand Dodia, Prakash Chand Sondhiya S/o Pyarelal Sondhiya, Hippi @ Satendra, Sunil Sondhiya S/o Chandmal Sondhiya, and Navneet @ Pappu S/o Prakash Chand Sondhiya whereas State of Madhya Pradesh has filed CRA 725 of 1996 being aggrieved of acquittal of Prakash Chand Sondiya S/o Pyarelal Sondia, Hippi @ Satyendra, Sunil Sondiya, Navneet @ Pappu, Kailash Chand S/o Shikhar Chand Jain and Prakash Chand S/o Sondia on account of the fact that respondents No. 1 to 6 in CRA No. 725 of 1996 alongwith five other convicted persons were prosecuted for the murder of Sudesh Choudhary that occurred on 05.05.1994 at about 10:15 a.m. at Ajad Chowk inside Panagar Township. They were also prosecuted for attempting to commit murder of Rakesh (PW-7). It is further submitted that respondents No. 1 to 4 namely Prakash Chand, Hippi @ Satyendra, Sunil Sondia and Navneet @ Pappu were convicted by the trial Court for causing grievous hurt to Rakesh (PW-7) while respondents No.5 & 6 were acquitted of that charge. It is against the acquittal of respondent No. 1 to 6 pertaining to the charge of murder of Sudesh Choudhary, the State has preferred this Criminal Appeal under Section 378 Cr.P.C.
2. It is submitted that, learned trial Court erred in acquitting the respondents No. 1 to 6 in CRA No. 725 of 1996 (State of M.P. Vs. Prakash Chand Sondia & Ors.) for an offence punishable under Section 302/149 of IPC in relation to the murder of Sudesh Choudhary. It is submitted that, the respondents No. 1 to 4 Prakash Chand, Hippi @ Satendra, Sunil Sondhia and Navneet @ Pappu have been convicted under Section 326 IPC for causing grievous hurt to Rakesh whereas accused Navneet and Sunil Sondhiya have Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20 NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 4 CRA-150-1996 been convicted under Section 326/149 of IPC for causing grievous injuries to Rakesh alongwith Prakash and Hippi as part of unlawful assembly. They were also convicted under Section 326 with the aid of Section 148 IPC. It is submitted that their conviction should have been recorded under Section 302/149 of IPC for causing murder of Sudesh Choudhary.
3. It has come on record and not disputed that in all 11 persons were tried before tried before the trial Court. Out of 11 persons two of the respondents in CRA No. 725 of 1996 namely Kailash Chand S/o Shikhar Chand Jain (Sondiya) and Prakash Chand S/o Shikhar Chand Dondia were acquitted from the charges whereas 09 persons were convicted, out of which four under Section 326 or 326/149/148 of IPC and remaining five are convicted under Section 302/148/149 of IPC.
4. Both these appeals are admittedly filed being aggrieved of judgment dated 20.01.1996 passed by learned 08th Addl. Sessions Judge, Jabalpur passed in Sessions Trial No. 619 of 1994.
5. Prosecution story in short is that on 05.05.1994 complainant Rajendra Kumar was at his shop when at about 10:00 a.m. Santosh Choudhary was going from Kamania Gate to his house when Shushil Sondhiya in front of Dr. Dodia's Dispensary gave a cut to Santosh. After some time, Shushil again came on his scooter and reached in front of the dispensary of Dr. Dodia. After some time, voices of abuse were heard when complainant Rajendra Kumar started looking towards the Dispensary of Dr. Shripal Dodia. He saw that Chandmal Sondhia and Dr. Shripal Dodia were calling their sons, namely Shushil Sondhia and Sunil Dodia exhorting them so as to Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20 NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 5 CRA-150-1996 not allow escape of Sudesh Kumar. Sudesh was standing there itself when Sushil Sondhia and Vinit Sondhia caught hold of Sudesh and then Sunil Dodia attacked Sudesh with a ballam in his stomach. Ballam was inserted in the stomach of Sudesh. He had fallen down at that very place soaked in a blood pool. Thereafter, allegation is that, Shushil Sondhia had caused an injury with a knife which had hit Sudesh on the right hand side of his back. Prakash Chand and Kailash Chand had also hit Sudesh with stones and bricks. Thereafter, Sudesh was lifted by Santosh Kumar, Rajmal, Padam and Prasanna etc. and they kept him on the platform of the shop and then took him to the hospital on a handcart. This incident took place at 10:30 a.m. Later on Sudhesh died due to shock. FIR (Ex.P-8) was registered at the instance of Rajendra Kumar Jain (PW-5). Injured witness Rakesh is PW-7. Other eyewitnesses are Santosh Kumar Coudhary (PW-11), Rakesh Sondhiya (PW-12) and Anand Kumar Modi (PW-14) who had seen the incident.
6. Shri Manish Datt, learned Sr. Advocate for the appellants in CRA No. 150 of 1996 submits that the main allegation of killing Sudesh Choudhary is on Sunil Dodia. Sunil Dodia has already been released on probation upon completion of necessary period of jail sentence. Allegation on Shushil Sondhia and Vinit Sondhia is of catching hold of Sudesh. It is pointed out that Shushil Sondhiya is no more. thus, the only person on whom there is allegation of catching hold of deceased Sudesh is Vinit Sondhia and it will be evident from the evidence of PW-5 that even Vinit had not held Sudesh as mentioned by Rajendra Kumar Jain (PW-5) as injury could not have been Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20 NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 6 CRA-150-1996 caused by Sunil Dondia in abdominal part of Sudesh with the help of a Ballam, if Vinit had caught hold of hands of Sudesh from front. Therefore, it is submitted that, present is a case of over implication.
7. It is pointed out that, allegation on Sushil Sondhia of hitting Sudesh with a knife is also not made out inasmuch as there are no injuries of knife on the right hand side of the back of Sudesh. Similarly, there are no injuries of hitting Sudesh either with stone or brick as attributed to Prakash Chand and Kailash Chand. Therefore, it is a clear case of over implication, as far as allegation of causing homicidal death of Sudesh is concerned.
8. It is further submitted that, Rakesh (PW-7) when came to save his brother Sudesh then Prakash Sondhia had hit him with a farsa on his left leg as a result of which he had got a deep wound in his calf muscle. Navneet had hit Rakesh (PW-7) with a sword on his neck which he had stopped with his left hand, as a result of which he had suffered injuries on the palm of the left hand and had sustained cut injuries in his fingers. Satyendra @ Hippi hit him with an axe on his left leg and Sunil Sondhia had caused injuries on his left hand with a sharp edged weapon.
9. It is submitted that, Dr. Vinod Kumar (PW-16) was posted as Assistant Surgeon at Victoria Hospital, Jabalpur on 05.05.1994. At about 11:45 a.m. CMO had admitted Rakesh in this Hospital. His admission ticket is Ex.P-28 which has a writing in the hand of the Compounder. He had examined Rakesh and found following injuries on his body:
(i) One incised wound on the lower portion of the left leg measuring 5 x 1.5 inches muscle deep which was excessively bleeding causing cut injury Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20 NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 7 CRA-150-1996 to Fibula bone.
(ii) There was a incised wound on the thumb middle finger and ring finger measuring 3x1/2 inches muscle deep which was also bleeding.
Thus, reading from this evidence of PW-16, it is submitted that, the only injury which was fatal and major, is attributed to Prakash Sondhiya which was caused on the lower portion of the left leg of injured witness Rakesh (PW-7). Implication of Navneet is over implication. However, in para-7 of his cross-examination, this witness, PW-16, admitted that, the injuries on the fingers of the hand and leg were not on the vital part of the body. Injury No.2 on the thumb, middle finger and ring finger were simple in nature and if there had been fracture then, those injuries would have been grievous. He has further stated that injury No.1 was legated and stitched. That is the only treatment admissible under the facts and circumstances of the case. He has also stated in para 7 that none of the main blood vessels was cut. Therefore, it cannot be said that there was excessive blood loss. He further stated that treatment which was given by him to Rakesh was sufficient for well being of Rakesh.
In view of such evidence of Dr. Vinod Kumar (PW-16), it is submitted that, the injuries attributed to Navneet were simple in nature and are not sufficient to record finding of conviction under Section 326/149/148 of IPC.
10. Similarly, it is pointed out that no injuries were found as have been attributed to Satyendra @ Hippi or Sunil Sondhiya necessitating their conviction under Section 326/149 or under Section 326/149 with the aid of Section 148 IPC.
Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 8 CRA-150-1996
11. It is also submitted that, so far as the State appeal against the respondent No.5 & 6 namely Kailash Chand S/o Shikharchand Dodia and Prakash Chand S/o Shikharchand Dodia is concerned, no overt act has been attributed to them, and therefore, their acquittal does not call for any interference.
12. It is submitted that as far as Satendra, Sunil and Navneet are concerned, their conviction under Section 326/149/148 IPC needs to be altered to one under Section 323 of IPC.
13. It is further argued that, as per the prosecution story there was no unlawful assembly or premeditation or intention to cause homicidal death of Sudesh. For constituting an offence under Section 148/149 of IPC, it is necessary that there should be an unlawful assembly. Hence, the appellants are innocent and their conviction is not sustainable in the eyes of law.
14. Reliance is placed on the judgment of Supreme Court in the case of Kashmira Singh v. State of Punjab, AIR, 1994 SC 1651 and referring to paragraph 3, it is submitted that "Common intention" is to be inferred from the circumstances particularly the part played by the accused and the surrounding circumstances namely nature of the weapon used and the injury inflicted as well as the meeting of the minds among the accused who are being held constructively liable.
15. Similarly, reliance is placed on the judgment of Supreme Court in the case Laxmanji & another Vs. State of Gujrat (2008)17 SCC 48 and reading from the judgment it is pointed out that if some of the appellants who were unarmed caught hold of the deceased while A-1 who was having a Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20 NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 9 CRA-150-1996 knife inflicted knife blows on the abdomen and thigh of the deceased then the appellants who held hold of the deceased cannot be attributed any common intention to murder deceased, therefore, it will be appropriate to convict them under Section 326 read with Section 34 of IPC.
16. Learned Government Advocate, in his turn, supports the impugned judgment and in addition prays for allowing the appeal preferred by the State.
17. After, hearing learned counsel for the parties and going through the record, it is evident that in the incident that took place on 05.05.1994 the deceased is Sudesh whereas injured witness is PW-7 (Rakesh Kumar). Eye witnesses to the incident are PW-7 (Rakesh - injured), PW-11 (Santosh Kumar Choudhari), PW-12 (Rakesh Sondhiya), WP-14 (Anand Kumar Modi), PW-5 (Rajendra Kumar Jain) - author of the FIR. PW-6 ( Dr. D.K. Sakalya) had conducted postmortem.
18. PW-10 (Dr. G.K. Upadhyay) conducted MLC while being posted as Assistant Surgeon at Primary Health Centre, Panagar on Sudesh who was gasping for life and also that of Rakesh. He had prepared information memo to SHO contained in Exhibit P-21 certifying death of Sudesh and had examined Rakesh vide Exhibit P-22-A and had found an incise wound measuring 5.5cm x 2.5cm x bone deep on lower part of left leg which was bleeding caused with a sharp object. He was referred to Victoria hospital for X-ray and surgery. He had also found that Rajmal S/o Pyarelal Sondhiya aged 60 years had an abrasion measuring 0.5 x 0.10 cm over the right ear caused by hard and blunt object, and report of the same is Exhibit P-24-A. Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20 NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 10 CRA-150-1996
19. PW-16 (Dr. Vinod Kumar) while posted at Victoria Hospital, Jabalpur had admitted Rakesh and prepared admission ticket Exhibit P-28. On examination, he had found one cut wound on the lower part of left leg measuring 5"x5.1" x muscle deep with excessive bleeding. Fibula bone was cut. Similarly there was a cut wound on the thumb, middle finger and ring finger measuring 3x1/2 inch x muscle deep which was bleeding. He was advised for X-ray. He had given general anesthesia to Rakesh and had ligated those wounds and stitched the wounds. He had plastered those wounds and prepared a report vide Exhibit P-29. Similarly this witness has stated that Rakesh remained under his treatment till 13.05.1994. His bedhead ticket is in five pages. It was written by him and Dr. Upadhyay.
In cross-examination, this witness (Dr. Vinod Kumar) admits that injury No.2 was simple. None of the main blood vessels was cut. Therefore, there was no excessive blood loss. Treatment which was given by this doctor was sufficient to cure the patient and patient was cured.
20. PW-19 (Dr. A.B. Rusia) has mentioned that while posted at Primary Health Centre, Panagar in the capacity of Assistant Surgeon on 12.05.1994, he had examined Sunil Kumar S/o Dr. Shripal Dhondhiya, Sushil Kumar S/o Chandmal Sondhiya who had suffered minor injuries which could have been caused due to fall. At the time of examination of Sunil and Sushil, he had found that injuries were contacted within 7-10 days and these injuries were caused by hard and blunt object. Their reports are Exhibits P-34 and P-35, respectively.
21. Thus, injuries caused to Sunil Kumar and Sushil Kumar S/o Shri Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20 NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 11 CRA-150-1996 Chandmal Sondhiya reveal that even the appellant party sustained injuries in the fight which had taken place.
22. As per Exhibit D-1 i.e. case diary statement of Rajendra Kumar S/o late Hukumchand Jain (PW-5) author of FIR (Exhibit P-8), it is evident that as per his version, Chandmal Sondhiya and Dr. Sripal Dhondiya had called their sons Sushil Kumar Sondhiya and Sunil Kumar Dondiya, respectively asking them to kill Sudesh Kumar. Allegation is that Sudesh was standing when Sushil Sondhiya and Vinit caught hold of Sudesh and Sunil Kumar had hit Sudesh with a Ballam in his stomach. Thereafter Sushil Sondhiya had attacked Sudesh with a knife and Kailash Chand and Prakash Chand Dondiya had thrown stones and bricks on him.
23. As per the spot map Exhibit P-2, the place of incident is near Jhanda Chowk, Panagar. In the spot map, it is mentioned that at point No.2 which is near Shri Hanuman Mandir, Rakesh who had run to save Sudesh, was attacked whereas at Point No.3 Sudesh was brought and kept after sustaining injuries. Point Number 4 is the place wherefrom Prabhat S/o Shikhar Chand Jain had witnessed the incident. Distance between point number 1 to 4 is shown as 53 feet and spot number 3 was at a distance of 26 feet. Spot Number 5 is the place from where witness Manoj Kumar S/o Gyan Chand Jain had seen the incident which is shown to be at a distance of 67 feet from point numbers 1 and 2 and about 40 feet from spot number 3. Point No.6 is the temple where injured had entered.
24. PW-9 (Prabhat Kumar) is the person who had seen the incident from spot marked as 4, whereas Manoj Kumar - another eye witness, has not been Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20 NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 12 CRA-150-1996 examined in the Court of law. Lash Panchnama of Sudesh was prepared on 05.05.1994 at Government Hospital, Panagar where Rajesh Katangaha S/o Surendra Katangaha (PW-4) and 4-5 other persons were present. Dead body was shown from all sides. Lash Panchnama is Exhibit P-6. He had seen the injuries. There was three inch deep wound on left ribs. After panchnama, SHO had taken him to the place of the incident where spot panchnama Exhibit P-2 was prepared. At the spot, glass bottles and stones were lying. So also used bombs were also lying, two bombs were freshly exploded, as they were emanating smell. Material of bomb was seized and it was sealed vide Exhibit P-12. He is also witness of blood stained soil and normal soil sealed vide Exhibit P-13. On 11.05.1994 he was taken to Community Hall where Sunil Dodiya and Sushil Sondhiya were present in handcuffs state. SHO had interrogated Sunil Dodiya and asked him as to with which weapon he had attacked Sudesh. When Sunil had said that he had hidden that weapon in the dispensary, then that was recovered vide memorandum Exhibit P-14. Thereafter interrogation was made from Sushil from whom a weapon was seized by the side of the boundary wall of the house, vide Exhibit P-15. Knife was seized at the instance of Sunil Sondhiya by the side of wall of his house vide Exhibit P-16. Thereafter seizure memo was made at the instance of Sunil Dodiya whereby a blood stained Ballam was recovered vide Exhibit P-17. Thereafter he had taken out a knife like weapon and had given to police vide Exhibit P-18, which too was sealed and then Sunil Sondhiya had given like object from the side of his boundary wall, which was sealed vide Exhibit P-19. They were arrested vide Exhibit P-20.
Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 13 CRA-150-1996
25. In cross-examination, this witness - PW-9 (Prabhat Kumar) has stated that when SHO had prepared spot map he was present but he could not make out as to what is written in the spot map. The spot map was prepared within 10-15 minutes. In paragraph 14, this witness stated that whatever material was seized, it was seized from the place of the incident. He had not seen the pieces of bombs. He has denied any recovery from the dispensary. He has stated that material was seized from the place of the incident. He again reiterated that no recovery was made from the dispensary. He had signed the seizure memo at the police station. In paragraph 17, this witness has admitted that place from where Ballam was seized is a public drainage by the side of the road. Knife was recovered from the spot near boundary wall of Chandmal. It is admitted that the place from where the knife was seized, is an open place and anybody can throw knife in that place. He has admitted that no identification mark was put on the knife. Another knife too was recovered from a spot near the boundary wall of Chandmal and similar knives are available in the market and no identification mark was put on those knives.
26. PW-5 (Rajendra Kumar Jain) has admitted that he had not given names of Prakash Chand Sondhiya, Navneet, Hippi @ Satyendra in his report. Those names were not given as they had not carried out any 'marpeet'. In Exhibit D-1, he has not mentioned the names of these three persons. Place of incident is not visible from his shop. He had seen Sudesh at Chauraha at a distance about 20-25 feet from the place of the incident. After movement of 10-15 steps from his shop, he had seen the place of the incident. He admitted Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20 NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 14 CRA-150-1996 that house of Chandmal is on Jabalpur-Katni Road which is about 100 yards away from the place of the incident. He further admitted that when Sudesh had fallen down then Prakash and Kailash were at a distance of 10-15 steps. He admitted that there was crowd at the place of the incident. In paragraph 10, this witness has stated that Prakash was armed with a sword and he cannot say with which weapon Kailash was armed. He could not say as to from where they had lifted the stones/bricks. He has admitted that he had not seen that whether the stones and bricks had hit Sudesh or not or had fallen close to him, is not known to him. This witness has stated in paragraph 11 that Sudesh was caught hold from front.
27. It is evident that if Sudesh would have been caught hold of from front by Vinit and Sushil, then Ballam could not have been hit in his stomach from front. It is alleged that when Sudesh had fallen then on his back stab wound was caused with a knife but as per the report of Dr. D.K. Sakalley (PW-6), there was one stab wound on left hand side of stomach about 5 inches below the nipple measuring 3.5 inch x 1 inch, with clear cut margins, ends were sharp. Intestine was visible and actually cut into two parts. There was one cut injury on the little finger of right hand and thumb of left hand. Thus, no stab wound has been shown by Dr. D.K. Sakalley on the back of the deceased to substantiate the allegation of PW-5 (Rajendra Kumar Jain) that Vinit and Sushil had caused any injury to him.
28. There is specific suggestion to PW-5 as to whether he had heard conversation between Santosh and Sushil then he has admitted that he could not say anything about it. In paragraph 13 this witness admits that he cannot Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20 NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 15 CRA-150-1996 say that voices of how many people was heard by him. In paragraph 16, this witness admits that he has not mentioned in Exhibit P-8 that any knife injury was caused by Sushil on the right hand side of the back of Sudesh. He cannot say how it is mentioned.
29. In paragraph 17, this witness admitted that it is not known to him whether Dr. Shripal had sustained fracture in his head on 21.03.1994 for which he was admitted in Jabalpur Hospital and from where he was discharged on 07.04.1994. He could not say that on 04.05.1994, Dr. Shripal was discharged from Jabalpur Hospital, with a catheter for which he was earlier admitted due to problem of prostrate.
30. In paragraph 22, this witness has admitted that he had not heard Chandmal and Shripal exhorting their children but he had guessed that they were exhorting. In paragraph 23, this witness has stated that when he had seen from a distance of 50-60 feet, only 2-4 persons were standing, and remaining road was empty. He has admitted that Prasann Modi and Santosh Choudhary (PW-11) were not present at the Chauraha. Prasann Modi, Rakesh and Santosh were standing in front of their shops. He has admitted that in front of him, except Sudesh nobody was subjected to any marpeet. If there was any old dispute between them, he cannot say about it.
31. In paragraph 26, he has admitted that a case under Section 107 and 116 is pending against the rival parties. Some persons are in his party and some persons are in other party. He admits that name of his son is also involved in that case. A case under Sections 107 and 116 of the IPC is also pending against this witness. In paragraph 28, this witness has admitted that Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20 NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 16 CRA-150-1996 he did not mention in the report that through their voices he had identified Chandmal and Shripal. This witness admits that Pragya Shrivastava had taken Manoj. He further admits that he had not visited the place where Sudesh had fallen down.
32. Thus, it is evident from the testimony of this witness that there was no overt act attributed to three persons, namely, Hippi @ Satyendra, Navneet @ Pappu and Prakash Chand Sondhiya whose names are not mentioned in the FIR. He has not alleged any overt act to them. He has admitted old rivalry between the parties. He has admitted pendency of case under Sections 107 and 116 of the Cr.P.C. against the rival parties. Thus, if the incident took place at the spur of the moment as admitted by him that only 3-4 persons were present at the place of the incident and he had not heard any exhortation on the part of Chandmal Sondhiya and Dr. Shripal, then the theory of unlawful assembly, is prima facie not made out.
33. PW-7 (Rakesh Kumar) who is the injured witness, has stated that he is a kirana merchant at Vidya Sagar Ward, Panagar. His shop is inside Kamaniya Gate, Panagar. Santosh Kumar is his elder brother and his partner. Sudesh Choudhari was his cousin. He died on 05.05.1994. On that day, at about 10 AM he was getting an oil tanker open when Santosh came from Kamaniya gate side and informed that Sushil Sondhiya had given a cut from his scooter. Thereafter he had seen Sushil Sondhiya coming on his scooter from Kamaniya gate side and going towards the dispensary of Dr. Shripal. Dr. Shripal and Chandmal were standing near the dispensary. Santosh had gone to them to make a complaint. This witness had gone inside his shop.
Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 17 CRA-150-1996 After 5-7 minutes he had heard abuses. By that time Santosh had come back to his shop. When he came out, he saw Sunil Dodiya armed with Ballam, Navneet Sondiya armed with sword, Prakash armed with a farsa, Sushil Sondhiya armed with a knife, Satyendra @ Hippi armed with an axe and Kailash were also present. Sudesh was standing there. He has made similar averments as made by PW-5 (Rajendra Kumar Jain) author of FIR (Ex.P-8). He has shown presence of Rajendra Kumar (PW-5) at the place of the incident. He has admitted that he had not given any intimation to the police as to who had beaten him with which weapon. He said that since he was in pain, he did not inform anybody about the incident. He was unconscious for two days, therefore, he had not given names of any of the assailants.
34. This contention that he was unconscious for two days, is contrary to the evidence of Dr. Vinod Kumar (PW-16) who admitted Rakesh vide Exhibit (P-28). Exhibits P-28, P-26 and P-27 do not make a mention of the fact that Rakesh was unconscious. Thus, this statement is contrary to the medical reports available on record.
35. In paragraph 5, this witness (PW-7) has admitted that he had not informed the doctor who were the assailants. In paragraph 6, he has stated that when he gained consciousness on 07.05.1994, he had not given the names of the assailants to the doctor. He had given the statement to the police. He had not read those statement written by police and so also he had not heard that statement till his deposition in the Court. A suggestion was given to this witness that his injuries were sustained at earlier point of time, they were old injuries and therefore, he is trying to falsely implicate as he Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20 NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 18 CRA-150-1996 sustained injuries in an accident prior to the date of the incident.
This witness admitted that he did not remember as to what conversation had taken place between Santosh, Chandmal and Dr. Shripal. He admitted that dispensary is not visible from the place of his sitting in the shop. At the place of the incident, there is a general store and a barber shop and on the other side there is a shop of Lakhera. Place of the incident is an open market. He admitted that the place where he was beaten, is a place close to the shop of a Sindhi and a barber. He alleged that Prakash had hit him with a farsa. This witness admitted that who had abused whom, is not known to him. He admitted that when he had seen Sudesh at the place of incident, at that time he was not surrounded by the accused persons. He had not seen as to who was standing close to Sudesh. He admitted that the distance between Sudesh and Vinit was 4-5 steps. Thus, it is evident that from a distance of 4- 5 steps neither Vinit nor Sushil could have caught hold of Sudesh, a fact which has come in cross-examination of this injured witness Rakesh. Causing injury with a knife on the body of Sudesh is an exaggeration as there is no injury of knife on the body of Sudesh. He alleged that Satyendra had hit him with an axe, but eye-witness PW-5 has admitted that Satyendra @ Hippi was not involved in the incident. Similarly, it is admitted that Navneet and Hippi are not named in the FIR.
36. PW-11 (Santosh Kumar Choudhari) is the person to whom Sushil had given a cut with his scooter. This witness admitted that after the incident, a case under Section 107/116 of the Cr.P.C. was registered against him. Rajendra Kumar Choudhari, Subhas Chandra Singhai, Prasanna Kumar Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20 NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 19 CRA-150-1996 Modi and 10-11 other persons were implicated. He admitted political differences between the rival parties. He also admitted that there was a dispute in regard to enhancement of rent of the shops.
37. PW-12 (Rakesh Sondhiya) has alleged that Prakash Sondhiya had hit Rakesh on his left leg, causing injury to the calf muscle. Allegation is on Navneet Sondhiya of trying to attack Rakesh Sondhiya with a sword on his neck, which Rakesh had stopped and Satyendra @ Hippi attacked on his left leg with an axe. When Rakesh had run away towards shop of Nayab ji, then, allegation is that Kailash Dodiya had thrown a bomb from his house. He admitted that he was also part of the team which had lifted Sudesh, but denied any suggestion that their clothes were stained with blood. He admitted that his statements were recorded on 7th as he had reached Panagar on 6th. He denied a suggestion that on 5th he was arrested along with 20 other persons and, thereafter, bail was given from the Court of Tahsildar. He admitted that he had received a notice under Section 107 and 116 of the Cr.P.C. after one month of the incident, but he does not remember the date on which he had furnished his bail.
38. There are several omissions and contradictions in the evidence of this witness, inasmuch as, he stated that Prakash Dodiya had not caused any injury to Rakesh, but said that 2-3 bombs burst at the place of the incident. His father got injured, but he admitted that this fact is not mentioned in his case diary statements. This witness in paragraph 20 stated that he had seen the incident from the shop of PW-5 (Rajendra), whereas Rajendra said that place of incident is not visible from his shop, but he had to move 10-15 steps Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20 NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 20 CRA-150-1996 ahead of his shop to watch the incident. Therefore, it is evident that testimony of this witness PW-12 (Rakesh Sondhiya) is not trustworthy as an eye-witness.
39. PW-14 (Anand Kumar Modi) is also not an eye witness inasmuch as he admits that he was going to Saraswati School to collect result of his children. He had reached Galla Bazar Chauraha, when he heard noises of altercation from the side of Jain Mandir. He had gone to the temple on his scooter when he saw Sudesh lying in a blood pool at chauraha. There are several contradictions in his case diary statement (Exhibit D-9) and his Court Statement.
40. Respondents have examined DW -1, Lalbahadur Yadav, headmaster of Government Senior Buniyadi School, Panagar. He has admitted that Prakash Chand Jain was Assistant Teacher in his school. He was regularly coming to the school as results were to be prepared. He proved signature of Prakash Chand Jain on the attendance register and has shown presence of Prakash Chand Jain in the school on 05.05.1994 from 10-10:15 AM to 01:00 PM.
41. DW-2 (Rakesh Kumar Jain), is owner of the pan shop whose presence is shown by PW-7. He has stated that when the incident had taken place at about 10:00 AM he was in his shop. Sushil came running and entered into the dispensary of Dr. Shripal as he was being beaten. There was a crowd of 200-250 persons. At that point of time, with a view to save his life, he had closed his shop. Public was throwing stones on the dispensary. They were shouting to take out Sushil so that he may be beaten up.
Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 21 CRA-150-1996
42. DW-3 (S.R.Verma) has stated that he was working in Civil Court, Jabalpur. He proved that he remained posted there from the year 1993 to 19th May, 1994 in the Court of Ms. M.V. Kaur. Chargesheet was filed on 28.5.1994 in Crime No.203/1994. DW-4 (Ramakant Chowksey), again an employee of CJM Court Jabalpur stated that he was working as reader in the Court of Smt. N.V.Kaur, 6th Civil Judge, Class-I. He has stated that no copy of FIR was received in the Court of Ms. N.V.Kaur. DW-5 (Dr.Sadan Yadav) has stated that he had seen Dr. Shripal on 04.05.1994 at his residence. He was having catheter and he was lying in the bed. On 05.05.1994, he had also seen Sunil S/o Dr. Shripal who had swelling on his head and certain abrasions. DW-8 (Pradeep Kumar Dani) has stated that he had gone to Panagar on 04.05.1994. On 05.05.1994, at about 10-11:00 AM he had seen crowd of 1000-1200 persons as Sudesh and Rakesh were involved in a scuffle over an item which was appearing to be like a 'gupti'. Rakesh had stabbed Sudesh with gupti in his stomach.
43. Thus, the evidence of prosecution and defence witnesses reveals that firstly, it was a free fight. There was an old enmity on account of partibandi. It has also come on record that huge crowd had gathered there and cases were registered against rival parties under Sections 107 and 116 of the Cr.P.C. But prosecution has not made any independent person as witness and all the witnesses, PW-5, PW-7, PW-11, PW-12 and PW-14 are related to each other. There was a dispute in regard to fixation of rent of shops.
44. It has also come on record that role attributed to Sushil and Vinit Kumar is not made out from the medical report given by PW-6 (Dr. Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20 NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 22 CRA-150-1996 Sakalya). The main assailant who caused injuries to Sudesh is Sunil Kumar S/o Shripal who has already completed his sentence and is released on probation. Hippi @ Satyendra and Navneet are not named in the FIR. No specific role is assigned to Sunil Sondhiya S/o Chandmal Sondhiya of either exhorting or assaulting deceased Sudesh. Therefore, conviction of Vinit Kumar, Hippi @ Satendra, Sunil Sondhiya and Navneet is not sustainable on the basis of material on record.
45. Therefore, the conviction of appellant No.4 - Vinit Kumar S/o Chandmal Sondhiya under Section 302/149 of the IPC cannot be sustained and is hereby set aside. Conviction of appellant No.2 Sunil Kumar Dodiya S/o Shripal Dodiya under Section 302, 148 of the IPC can be maintained however, since he has been released on probation and appeal is not pressed in his behalf, no finding needs be recorded in respect of Sunil Kumar Dodiya.
46. As far as conviction of appellant No.6 - Prakash Chand Sondhiya, appellant No.7 - Hippi @ Satyendra Dodiya, appellant No.8- Sunil Sondhiya and appellant No.9- Navneet Sondhiya under Sections 148 and 326/149 of the IPC is concerned, PW-5 has admitted that no overt act was committed by Hippi @ Satyendra and Navneet Sondhiya. Specific role is assigned to Sunil Sondhiya for causing injuries to PW-7 (Rakesh). PW-5 has not stated anything about injuries caused to Rakesh. In the FIR (Exhibit P-8), there is no mention of any of the assailants causing any injury to Rakesh (PW-7). PW-7 (Rakesh) has falsely stated that he was unconscious and therefore, he could not give the name of the assailants. This is contrary to the hospital Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20 NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 23 CRA-150-1996 record i.e. Exhibits P-26, 27 and 28. However, PW-11 (Santosh Kumar Choudhari) has made specific allegation on Prakash Sondhiya of causing injuries to Rakesh (PW-7) with a farsa on his left leg which is corroborated with the medical evidence. However, Prakash Chand Sondhiya is no more. Therefore, conviction under Section 326/149 can be maintained only qua appellant No.6 - Prakash Chand Sondhiya and not against Hippi @ Satendra Dodiya, Sunil Sondhiya and Navneet Sodiya especially when the presence of Hippi and Navneet Sondhiya is not mentioned in the FIR. It has come on record that appellant No.6 - Prakash Chand Sondhiya is no more, hence the appeal qua Prakash Chand Sondhiya stood abated. , therefore, conviction of appellant no.7 Hippi @ Satendra, appellant No.8 -Sunil Sondhiya and appellant No.9 Navneet Sondhiya under Sections 148 and 326/149 of the IPC cannot be maintained and is hereby set aside.
47. As far as the appeal filed by the State is concerned, it has come on record that Hippi and Navneet were not named assailants. No specific role is ascribed against Sunil Sondhiya in relation to Sudesh. As far as Kailash Chand and Prakash Chand are concerned, there is no evidence that they were pelting stones on Sudesh. It is settled law that in a free fight, individual act is required to be seen and there cannot be any conviction with the aid of Section 148/149 of the IPC. In this behalf, judgment of the Supreme Court in the case of Mangal Singh v. State of MP 1996 CriLJ 1908 (MP) is to the effect that when there was a wordy dual and clashing of arms by the parties resulting into free fight in which both sides suffered injuries, when it cannot be said that it was an unlawful assembly. Similarly in the case of Kanbi Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 29-11-2024 18:25:20 NEUTRAL CITATION NO. 2024:MPHC-JBP:54842 24 CRA-150-1996 Nanji Virji and Others v. State of Gujarat, AIR 1970 SC 219 (222) it is held that when there was a melee at the time of the incident and two groups were indulged in free fight resulting in injuries to persons of both the groups and death of two, if the Court comes to the conclusion that the injuries sustained by the persons in course of free fight then there is no question of common object and only those persons who are proved to have caused injuries or death, can be held guilty of offence individually committed by them. Similar is the ratio in the case of State of UP v. Jodha Singh and Others, AIR 1989 SC 1822.
48. In view of the preceding analysis and in the light of the ratio of law laid down in the cases of Mangal Singh, Kanbi Naji Virji and Jodha Singh (supra), both the appeals i.e. appeal filed by the convicted accused persons and the appeal filed by the State are disposed of in the following terms:
(i) Conviction of appellant No.4 - Vinit Kumar S/o Chandmal Sondhiya under Section 302/149 of the IPC is set aside; and
(ii) Conviction of appellant No.7 Hippi @ Satendra, appellant No.8 -
Sunil Sondhiya and appellant No.9 Navneet Sondhiya under Sections 148 and 326/149 of the IPC cannot be maintained and is hereby set aside.
Bail bonds of present appellants are discharged. The case property be disposed off as per orders of the trial Court. Record of the trial Court be sent back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 29-11-2024
18:25:20
NEUTRAL CITATION NO. 2024:MPHC-JBP:54842
25 CRA-150-1996
AR/ks
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 29-11-2024
18:25:20