Madhya Pradesh High Court
Bhagwansingh And Anr. vs The State Of Madhya Pradesh on 25 August, 2023
Author: Vivek Rusia
Bench: Vivek Rusia, Anil Verma
- : 1 :-
CRA Nos. 193/2013, 252/2013, 258/2013,
267/2013, 280/2013 & 467/2013
IN THE HIGH COURT OF MADHYA PRADESH : BENCH
INDORE
BEFORE HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
CRIMINAL APPEAL No. 193 of 2013
BETWEEN:-
RAMSINGH @ RAMA AND ANR S/O BAPULAL @ BABU, AGED
1. ABOUT 29 YEARS, OCCUPATION: AGRICULTURE R/O VILLAGE
TUNGNI PS MAKDON DISTRICT UJJAIN (MADHYA PRADESH)
BABULAL S/O BHAYYAJI , AGED ABOUT 64 YEARS, OCCUPATION:
2. AGRICULTRIEST VILL TUNGNI P.S. MAKDON (MADHYA
PRADESH)
.....APPELLANTS
(SHRI MANOJ SAXENA, LEARNED COUNSEL FOR THE APPELLANTS.)
AND
THE STATE OF MADHYA PRADESH GOVT. THROUGH PS SHAJAPUR
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI SUDARSHAN JOSHI, LEARNED GOVT. ADVOCATE FOR THE
RESPONDENT/STATE.)
CRIMINAL APPEAL No. 252 of 2013
BETWEEN:-
PAPPU S/O BABULAL, AGED ABOUT 26 YEARS, OCCUPATION:
AGRICULTURIST VILLAGE TUNGNI P.S. MAKDON (MADHYA
PRADESH)
.....APPELLANT
(SHRI MANU MAHESHWARI, LEARNED COUNSEL FOR THE
APPELLANT.)
AND
THE STATE OF MADHYA PRADESH GOVT. THRU. P.S. SHAJAPUR
- : 2 :-
CRA Nos. 193/2013, 252/2013, 258/2013,
267/2013, 280/2013 & 467/2013
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI SUDARSHAN JOSHI, LEARNED GOVT. ADVOCATE FOR THE
RESPONDENT/STATE.)
CRIMINAL APPEAL No. 258 of 2013
BETWEEN:-
HUKUMSINGH AND 5 ORS S/O RADHESHYAM GURJAR, AGED
1. ABOUT 24 YEARS, OCCUPATION: AGRICULTURE R/O VILLAGE
TUGNI PS MAKDON DISTT. UJJAIN MP (MADHYA PRADESH)
MOKAM SINGH S/O AMARSINGH GURJAR, AGED ABOUT 26
2. YEARS, OCCUPATION: AGRICULTURE VIL TUGNI, P.S. MAKDON
(MADHYA PRADESH)
HINDUSINGH S/O THAVARJI GURJAR, AGED ABOUT 54 YEARS,
3. OCCUPATION: AGRICULTURE VIL TUGNI, P.S. MAKDON
(MADHYA PRADESH)
SHIVRAM S/O JAGANNATH GURJAR, AGED ABOUT 24 YEARS,
4. OCCUPATION: AGRICULTURE VIL TUGNI, P.S. MAKDON
(MADHYA PRADESH)
RADHESHYAM S/O THAVARJI GURJAR, AGED ABOUT 44 YEARS,
5. OCCUPATION: AGRICULTURE VIL TUGNI, P.S. MAKDON
(MADHYA PRADESH)
SITARAM S/O AMARSINGH GURJAR, AGED ABOUT 44 YEARS,
6. OCCUPATION: AGRICULTURE VIL TUGNI, P.S. MAKDON
(MADHYA PRADESH)
.....APPELLANTS
(SHRI ZAFAR AHMED KHAN, LEARNED SENIOR ADVOCATE SHRI
RAMESH GANGARE, ADVOCATE FOR THE APPELLANTS.)
AND
THE STATE OF MADHYA PRADESH GOVT. THROUGH PS SHAJAPUR
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI SUDARSHAN JOSHI, LEARNED GOVT. ADVOCATE FOR THE
RESPONDENT/STATE.)
CRIMINAL APPEAL No. 267 of 2013
BETWEEN:-
- : 3 :-
CRA Nos. 193/2013, 252/2013, 258/2013,
267/2013, 280/2013 & 467/2013
NATWAR SINGH AND 3 ORS. S/O CHANDAR SINGH, AGED ABOUT
1. 23 YEARS, OCCUPATION: AGRICULTURIST VILLAGE TUNGNI P.S.
MAKDON (MADHYA PRADESH)
SITARAM S/O SHANKAR SINGH, AGED ABOUT 64 YEARS,
2. OCCUPATION: AGRICULTURE VIL TUNGNI P.S. MAKDON
(MADHYA PRADESH)
KAMAL S/O AMAR SINGH, AGED ABOUT 27 YEARS,
3. OCCUPATION: AGRICULTURE VIL TUNGNI P.S. MAKDON
(MADHYA PRADESH)
VIKRAM S/O SITARAM, AGED ABOUT 29 YEARS, OCCUPATION:
4.
AGRICULTURE VIL TUNGNI P.S. MAKDON (MADHYA PRADESH)
.....APPELLANT
(SHRI MANU MAHESHWARI, LEARNED COUNSEL FOR APPELLANTS
NO. 1 & 4.)
(SHRI SYED ASIF ALI WARSI , LEARNED COUNSEL FOR APPELLANTS
NO.2 AND 3.)
AND
THE STATE OF MADHYA PRADESH GOVT. THRU. P.S. SHAJAPUR
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI SUDARSHAN JOSHI, LEARNED GOVT. ADVOCATE FOR THE
RESPONDENT/STATE.)
CRIMINAL APPEAL No. 280 of 2013
BETWEEN:-
NIRBHAYSINGH AND 3 ORS. S/O DEVISINGH, AGED ABOUT 34
1. YEARS, OCCUPATION: AGRICULTURIST VILL.RAMPURA (TUGNI)
P.S.SHAJAPUR (MADHYA PRADESH)
KARANSINGH S/O BALDEVSINGH , AGED ABOUT 32 YEARS,
2.
OCCUPATION: AGRICULTRIEST (MADHYA PRADESH)
PRABHULAL S/O DEVISINGH , AGED ABOUT 28 YEARS,
3. OCCUPATION: AGRICULTRIEST RAMPURA (TUGNI)P.S.
SHAJAPUR (MADHYA PRADESH)
RAMESH S/O BALDEV , AGED ABOUT 32 YEARS, OCCUPATION:
4. AGRICULTRIEST VILL RAMPURA(TUGNI)P.S. SHAJAPUR
(MADHYA PRADESH)
.....APPELLANT
- : 4 :-
CRA Nos. 193/2013, 252/2013, 258/2013,
267/2013, 280/2013 & 467/2013
(SHRI VIVEK SINGH, LEARNED COUNSEL FOR THE APPELLANTS.)
AND
THE STATE OF MADHYA PRADESH GOVT. THRU.P.S.SHAJAPUR
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI SUDARSHAN JOSHI, LEARNED GOVT. ADVOCATE FOR THE
RESPONDENT/STATE)
CRIMINAL APPEAL No. 467 of 2013
BETWEEN:-
BHAGWANSINGH AND ANR. S/O BHAIYYAJI, AGED ABOUT 46
1. YEARS, OCCUPATION: AGRICULTURE GRAM TUGANI THANA
MAKDON (MADHYA PRADESH)
MANSINGH S/O BALDEV JI, AGED ABOUT 44 YEARS,
2. OCCUPATION: AGRICULTURE RAMPURA TUGNI THANA
SHAJAPUR (MADHYA PRADESH)
.....APPELLANT
(SHRI C.L.YADAV, SENIOR ADVOCATE WITH SHRI VISHAL PANWAR,
ADVOCATE FOR THE APPELLANTS.)
AND
THE STATE OF MADHYA PRADESH GOVT. THRU.P.S.SHAJAPUR
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI SUDARSHAN JOSHI, LEARNED GOVT. ADVOCATE FOR THE
RESPONDENT/STATE.)
Reserved on : 06.07.2023.
Pronounced on : .08.2023.
This appeal having been heard and reserved for judgment,
coming on for pronouncement this day, Hon'ble SHRI JUSTICE
VIVEK RUSIA pronounced the following :
- : 5 :-
CRA Nos. 193/2013, 252/2013, 258/2013,
267/2013, 280/2013 & 467/2013
JUDGMENT
The appellants have filed the aforesaid criminal appeals against the judgment dated 4.2.2013 passed by the Additional Sessions Judge, Shajapur in Sessions Trial No. 59/2008 whereby they all have been convicted and sentenced as under :
CRA No.193/2013 - Appellants 1. Ramsingh @ Rama Offence u/s. Sentence Fine Amount In default of payment of the fine amount 302/149, IPC. Life Imprisonment. 1,000/- In default of payment of the total 307, IPC. 10 years' RI 1,000/-
fine amount Rs.
324/149, IPC 3 years' RI 500/- 4100/-, 323/149, IPC on 6 1 year' RI on each 100/- 410 days of counts. count. additional RI 147 Nil Nil 148 1 year RI 500/- 25(1-B)(A) of 1 year RI 500/- the Arms Act 2. Babulal Offence u/s. Sentence Fine Amount In default of payment of the fine amount 302/149, IPC. Life Imprisonment. 1,000/- In default of payment of the total 307, IPC. 10 years' RI 1,000/- fine amount 324/149, IPC 3 years' RI 500/- Rs. 3600/-, 323/149, IPC on 6 1 year' RI on each 100/- 360 days of counts. count. additional RI 147 6 months RI 500/-
CRA No.252/2013 - Appellant - Pappu S/o. Babulal - Offence u/s. Sentence Fine Amount In default of payment of the fine amount 302/149, IPC. Life Imprisonment. 1,000/- In default of payment of the total 307, IPC. 10 years' RI 1,000/-
the fine amount
324/149, IPC 3 years' RI 500/-
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CRA Nos. 193/2013, 252/2013, 258/2013,
267/2013, 280/2013 & 467/2013
323/149, IPC on 6 1 year' RI on each 100/- Rs. 3600/-,
counts. count. 360 days of
additional RI
147, IPC 6 months RI 500/-
CRA No.258/2013 - 1.Hukum Singh, Mokam Singh, 2.Hindusingh,
3.Shivram, 4.Radheshyam and 5.Sitaram -
Offence u/s. Sentence Fine Amount In default of payment of the fine amount 302/149, IPC. Life Imprisonment. 1,000/- In default of payment of the total 307/149, IPC. 10 years RI 1,000/-
fine amount
324/149, IPC. 3 years RI 500/- Rs. 3600/-,
323/149, IPC on 6 1 year' RI on each 100/- 360 days of
counts. count. additional RI
147, IPC 6 months RI 500/-
CRA No.267/2013 - Appellants - 1. Natwar Singh, 2.Sitaram, Kamal and 3.Vikram -
Offence u/s. Sentence Fine Amount In default of payment of the fine amount 302/149, IPC. Life Imprisonment. 1,000/- In default of payment of the total 307/149, IPC. 10 years RI 1,000/-
fine amount
324/149, IPC. 3 years RI 500/- Rs. 3600/-,
323/149, IPC on 6 1 year' RI on each 100/- 360 days of
counts. count. additional RI
147, IPC 6 months RI 500/-
CRA No.280/2013: Appellants - 1. Nirbhaysingh, 2. Karansingh, Prabhulal and 3. Ramesh -
Offence u/s. Sentence Fine Amount In default of payment of the fine amount 302/149, IPC. Life Imprisonment. 1,000/- In default of payment of the total 307/149, IPC. 10 years RI 1,000/-
fine amount
324/149, IPC. 3 years RI 500/- Rs. 3600/-,
323/149, IPC on 6 1 year' RI on each 100/- 360 days of
counts. count. additional RI
- : 7 :-
CRA Nos. 193/2013, 252/2013, 258/2013,
267/2013, 280/2013 & 467/2013
147, IPC 6 months RI 500/-
CRA No.467/2013: 1.Bhagwan Singh
Offence u/s. Sentence Fine Amount In default of
payment of the fine
amount
302/149, IPC. Life Imprisonment. 1,000/- In default of
payment of the total
307/149, IPC. 10 years RI 1,000/-
fine amount
324/149, IPC. 3 years RI 500/- Rs. 3600/-,
323/149, IPC on 6 1 year' RI on each 100/- 360 days of
counts. count. additional RI
148, IPC 1 year RI 500/-
2. Man Singh
302/149, IPC. Life Imprisonment. 1,000/- In default of
payment of the total
307/149, IPC. 10 years RI 1,000/-
the fine amount
324/149, IPC. 3 years RI 500/- Rs. 3600/-,
323/149, IPC on 6 1 year' RI on each 100/- 360 days of
counts. count. additional RI
147 Nil
148 I.P.C. 1 year RI 500/-
Prosecution story
1. The complainant: Tolaram a resident of Village Rampura Tatugani gave information which was recorded as the Dehati Nalisi on 12.12.2007 at 10.30 at Police Station Shajapur by SHO Ramvallabh Singh Chouhan (Exhibit-P/1) to the effect 20-25 days ago, one buffalo was recovered from the son-in-law of Vikram Gurjar resident of Rampura and due to which the family members of Vikram Singh used to doubt that such an information was given to the police by on Nirbhaysingh @ Nabbu ( hereinafter referred to as the deceased ). After the said report, Vikram Singh, Radheshyam and Babu threatened Nirbhaysingh that by giving the information to the police he has not done good to them and he cannot live in the village. Due to this previous enmity, on 12.12.2007 at 9.30 when Toalaram , Nirbhaysingh
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CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 @ Nabbu, Bhagwan Singh, Hindusingh, Anarsingh, Bhagirath, Geetabai, Suganbai, etc. were sitting in the courtyard of the house, then Radheshyam wielding gun; Hukumsingh, Babu wielding stick with 'Farsi'; Rama S/o. Babu and Vikramsingh S/o. Narayan armed with country made pistol; Sitaram, Mokamsingh with stick, Vikram S/o. Sitaram, Pappu, Kamal, Mansingh, Karansingh with stick with 'Farsi', Ramesh armed with a sword; Prabhulal, Hindusingh, Nirbhaisingh, Natvarsingh, Sitaram, Shivram with a stick came with a common intention, surrounded them and attacked intending to kill . His cousin's brother the deceased ran away to save himself then Bhagwan Singh fired a shot on his back and he fell down. Mansingh gave a blow by means of 'Fersi' on his head and others assaulted by means of 'Fersi', sword, stick, etc. His wife Geetabai, Bhagwan Singh, uncle Anarji, Bhagirath, Suganbai wife of Nirbhaysingh @ Nabbu and his other family members came there to save them, but they also sustained injuries. After assaulting all the accused persons ran away by firing gunshots from country-made pistols. As per the complainant the entire incident was witnessed by Jeevan and his son Dilip. Nirbhaysingh @ Nabbu died on the spot.
2. (i) According to the complainant Jeevan and his son Dilip brought Tractor Trolly and took the deceased to the hospital but in front of the house of Sitaram, they were also assaulted by Radheshyam and others. The Dehati Nalisi was registered on 12.12.2007 at 10-35 am at No. 0/07 for the offence u/s. 147, 148, 149, 323, 294, 307, 302 of the IPC and u/s. 25, 27 of the Arms Act at Police Station Shajapur (Exhibit-P/1).
(ii) At 10-50am a Dhati Merg Intimation (Exhibit-D/2) was also
- : 9 :-
CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 recorded on information of Tolaram P.W.-1 by R B S Chouhan in Police Station Shajapur of the same incident to place at 9-30 am. As per this Merg intimation Radhesingh etc. attacked them in front of the house of Sitaram. Bhagwan Singh fired a shot on the back of Nirbhayasing and he died. this information was sent to Sub Divisional Magistrate Shajapur. In this Merg names of all 19 accused are not disclosed. the same story is also written in Merg No. 87/07 under section 174 Cr.P.C. (Exhibit-P/3)
(iii) At 11-50 an FIR No. 832/07 was recorded under sections 147,148,149,323,294,307,302 I.P.C. and 25,27 the Arms Act against Radheshyam and 20 ors. (Exhibit-P/51).
3. Ramvallabh Singh Chouhan the Investigation Officer reached the scene of the crime called the five witnesses and drew Safina Form and sent the dead body for postmortem which was conducted by Dr N.C.Jhala vide (Exhibit-P/43). As per the doctor's opinion, the cause of death is shock due to haemorrhage from organ injuries due to pellets. Injured were sent to a local Government hospital where they were medically examined by Doctor Jhala. The Investigation Officer drew the spot map (Exhibit-P/2) and recorded the statement of the witnesses under section 161 of the Cr.P.C. . blood-stained soil, and plane soil cloths of the deceased were seized and sent to FSL. The report is marked as (Exhibit-P/50 according to which human blood was found only in the deceased's clothes, and in lathis, sword and farsis human blood was found. After the arrest of all the appellants, the Investigation Officer recovered the Farsi, Guns, sword and lathis on disclosure of places by them. The details of the recoveries of articles are as under:-
- : 10 :-
CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 Cr. Appeal Number & Appellants Articles Seized CRIMINAL APPEAL No.193/2013
1. Rama @ Ramsingh 12 Bore country-made pistol (Exhibit-P/14) .
2. Babulal Nil CRIMINAL APPEAL No.252/2013
1. Pappu. Iron Pipe.CRIMINAL APPEAL No.258/2013
1. Hukumsingh.
2. Mokamsingh. Lathi.
3. Hindusingh. Lathi.
4. Shivram. Lathi.
5. Radheshyam 12 Bore country-made pistol. (Exhibit-
6. Sitaram S/o. Amar Singh. P/15) Lathi.CRIMINAL APPEAL No.267/2013
1. Natwar Singh. Iron Pipe.
2. Sitaram S/o. Shankar Singh (Dead). Lathi.
3. Kamal. Fersi.
4. Vikram. Fersi and 12 Bore country made pistol.
(Exhibit-P/12) CRIMINAL APPEAL No.280/2013
1. Nirbhaysingh. Bamboo
2. Karansingh. Lathi.
3. Prabhulal. Lathi.
4. Ramesh. Sword.
CRIMINAL APPEAL No.467/20131. Bhagwan Singh 12 Bore country-made pistol. (Exhibit-
2. Mansingh. P/11) Lathi.
These arms ammunition were checked by Armour Inder Sing Rawat P.W.-3 and a report vide Exhibit-P/4 was submitted. These firearms and other weapons were sent for examination by an expert of FSL and its report is exhibited as Exhibit-P/53.
After completing the investigation, a charge sheet was filed against 19 accused in the court of Judicial Magistrate First Class from where the trial was committed to the Court of Sessions. Learned Additional Session Judge framed the charges against all the
- : 11 :-
CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 appellants, which they denied. They all pleaded innocence and false implication because of enmity, hence learned Additional Session Judge called upon the prosecution to prove the charges. Learned Sessions Judge framed 9 issues for adjudication and called upon the prosecution to examine the witnesses.
4. In the trial the prosecution examined as many as 16 witnesses as P.W.1 to P.W.16 and got exhibited 53 documents as Exh. P/1 to P/53.
In defence, the accused examined Rajendra Saxena, Head Constable as D.W.1 and got exhibited 9 documents as Exh. D/1 to D/9.
5. Learned trial Court discussed the injuries sustained by Tolaram, Bhagwan Singh S/o. Tolaram, Geetabai, Bhagirath, Suganbai, Anarji in Para 8 to 12 of the impugned judgment. In Para 12, the learned trial Court reproduced 13 injuries on the person of deceased Nirbhaysingh. Dr. N.C. Jhala who medically examined the deceased entered the witness box and deposed that injuries Nos. 1 to 4 were caused by hard and sharp objects; injuries No. 5o to 10 were caused by hard and blunt objects; and injuries No. 11 to 13 pallets fired by firearm. According to the autopsy doctor, all the injuries were antemortem and dangerous to life. The deceased died due to shock and excessive bleeding in internal organs caused by means of pallets. The death was homicidal in nature. The doctor further opined that the injuries caused to the injured person were also caused by hard, sharp and blunt objects. None of the counsel appearing for the appellants in the present appeals have challenged the above findings, therefore, the findings recorded by the learned trial Court in respect of the injuries sustained by the deceased and injured are hereby affirmed.
6. Learned Additional Session Judge after appreciating the
- : 12 :-
CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 evidence that came on record came to the conclusion that all the appellants formed an unlawful assembly and caused the injuries to the injured and killed Nirbhaysingh @ Nabbu. All the appellants have been convicted of the offence u/s. 302/149, 307/149, 324/149, 323/149 (on 6 counts), 147 of the IPC. Accused Bhagwan Singh and Mansingh have separately been convicted u/s. 148 of the IPC. Appellant Mansingh and Ramsingh @ Rama have also been convicted u/s. 25(1- B)(A) of the Arms Act. Thereafter, the learned trial Court considered the age and no criminal history of the appellants and accordingly sentenced all have them to undergo life imprisonment with a fine, as stated above. Hence, these criminal appeals before this Court.
We have heard the learned counsel for the parties at length and perused the record of the case.
7. The entire conviction is based on the testimony of P.W.- 1 and partially P.W.-2, hence their deposition is required to be examined carefully. The prosecution examined Tolaram as P.W.1 on whose instance Dehati Nalisi and FIR were recorded. According to him, on 12.12.2007 near about 9.30 am he along with other family members was sitting in the yard of his house and at that time all the accused persons came there with a common intention and surrounded them. Accused Bhagwan Singh was having a gun in his hands, Vikram S/o. Narayansingh and Babulal were having country-made pistols in their hand and they all started assaulting them. The deceased ran to save himself but Bhagwan Singh fired the shot on his back from his 12 bore Gun due to which he fell down. In Dehati Nalisi he has said that pallets hit on his back but in the court's statement, he said the bullet hit on his back which is of no importance. Thereafter the deceased was
- : 13 :-
CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 assaulted by all other accused by means of different arms in their hands. Mansingh gave a blow on his head, and he started bleeding. This witness Tolaram has not given any description as to who caused the injury to which injured person. According to him, Bhagwan Singh, Suganbai, Anarsingh, Bhagirath and Hindusingh sustained the injuries which are corroborated by the medical evidence. He says that his two- year aged son was pulled from his wife and thrown in the agricultural field, but this is an omission part and the same is not there in the Dehati Nalisi as well as in the statement recorded u/s. 161 of the Cr.P.C. According to him, the accused persons threatened the other family members for not giving the evidence to the police. In his examination in chief, he has not said anything about the attack on his son Dilip and Jeevan in front of the house of Sitaram as recorded in Exhibit-D/2 and D/3 as well as in FIR.
8. According to P.W.-1 Jeevan and his son Dilip brought Tractor Trolly and took the deceased to the hospital, in front of the house of Sitaram they were also assaulted by Radheshyam and others but in the court's statement, nothing has been said about this attack by Radheshyam. Thereafter, family members took the deceased through a tractor trolley to Shajapur but as per Naksha Panchayatnama dead body was found on the spot. The complainant identified his signature in Dehati Nalisi (Exh. P/1). He has shown ignorance about the recording of Exhibit D/2 and D/3. To establish the motive behind the above assault he says that the police recovered one stolen buffalo from the field of Kamal who is the brother-in-law of Vikramsingh and the accused persons were doubting that deceased Nirbhaysingh gave this information to the police discreetly due to this the police arrested
- : 14 :-
CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 Kamal. He further says that from the spot the police recovered 6 empty cartridges and one live cartridge. The police also recovered blood-stained soil and the statements recorded the statements.
9. P.W.- 1 was cross-examined extensively at length by all the defence counsels. In the cross-examination, he admits that the clothes of the injured were full of blood, but the police did not seize them. He also admits that the deceased told him that he was threatened by the accused persons for the information given by him to the police, but the police have not recorded it in Exh. P/1 and Exh. D/1 hence omission.
In Para 29 of the cross-examination admits that Bhagwan Singh caused the incised wound in his little finger, but in the police report he has said that his both hands were cut, hence he has exaggerated in the court. Therefore, it is clear from the evidence of Tolaram (P.W.1) that he has improved his statement in the Court, whereas in the Dehati Nalisi as well as in the FIR there are general allegations about causing the injuries to the injured persons and the deceased. He has not produced any document in respect of the theft of buffalo by Kamal and an FIR was lodged. But he denied the suggestion that he has implicated the accused persons due to previous enmity. He also denies the suggestion that as many as 5 criminal cases are registered against Nirbhaysingh in Police Station Shajapur and other criminal cases in Police Station Tarana. He also admits that the accused Bhagwan Singh is not a resident of his Village. He has also denied that he went to Village Taguni to commit theft and the father of Bhagwan Singh attacked him and the report was lodged in which they were arrested. He was also given the suggestion that he used to give information about Nirbhaysingh to the liquor licensees and Nirbhaysingh was
- : 15 :-
CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 assaulted by these liquor licensees in the night at 4-4.30 and he died and the family members of Nirbhaysingh are blaming him for his death. The defence counsel appearing for accused Bhagwan Singh put a specific question as to who was carrying a gun and he replied that Bhagwan Singh was carrying a 12-bore gun and he fired from it. But this is not recorded in the police report and for which he has not explained. His in-chief and cross runs into 170 paragraphs in several places he contradicts himself. He is not inspiring the confidence of the court. He tried to implicate each and every accused as he had enmity with all of them. He is not a person with a clean record. Except P.W.- 2, no other witness is supporting him, even the wife of the deceased. Therefore, it would be very difficult to uphold the conviction of the 20 accused based on his sole testimony.
10. According to P.W.- 1 the deceased, at the time of incidence, was in the courtyard and ran way 15-20 ft. towards the South direction where he was shot and died in the courtyard. In the spot map, the location of the dead body of the deceased is shown in the agricultural field of Karansingh which is 300 meters away from the house of Tolaram. Repeatedly, Tolaram P.W.- 1 has said that Nirbhaysingh was shot dead in the courtyard itself and he died on the spot. He has specifically denied that Nirbhaysingh reached up to 2-3 agricultural fields and there he was shot dead. This contradiction makes his testimony unbelievable.
11. The son of Tolaram i.e. Bhagwan Singh is examined as P.W.2 who has supported the case of prosecution in his examination-in-chief and copied the version of Tolaram. In his cross-examination, he became averse to the prosecution. He has admitted that some
- : 16 :-
CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 unknown persons came to the village and killed Nirbhaysingh and there was no such incident took place in his courtyard. However, he was cross-examined after a period of one year, therefore, the learned trial Court disbelieved his cross-examination. Since in the cross- examination, he turned hostile, therefore, he was not cross-examined at length. However, when he did not support the prosecution case in cross-examination and took a somersault, then he ought to have been examined again by the public prosecutor. Therefore his cross- examinations cannot be discarded in toto and that makes him an untrustworthy witness.
12. Apart from Tolaram (P.W.1) and Bhagwan Singh (P.W.2), no other independent witness, even the injured person has supported the prosecution case. Anarji (P.W.5) admitted the injuries but did not identify any of the accused persons. Likewise, Bhagirath (P.W.6) has said that he was also attacked, and he became unconscious and could not identify any of the accused persons. Prabhulal (P.W.7) admitted the incident but did not allege anything against the appellants.
According to Hindusingh (P.W.8), he became unconscious at the time of the incident. Dilip (P.W.9) stated that when he was in his house with the family members, 10-15 persons came and when he reached the spot he found the dead body of Nirbhaysingh.
13. Vikram S/o. Rugnath Singh (P.W.11) who is the witness of the arrest of some of the accused, has denied any of the arrests in his presence. The most important point is that Suganbai, the wife of the deceased, examined as P.W.14 has not supported the prosecution case. According to her, when she came out, she saw her husband dead, she did not identify Radheshyam, Hokumsingh, Bhagwan Singh, Rama @
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CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 Ramsingh, Babusingh Tungniwale, Mansingh, Karansingh, Sitaram, Mokamsingh, Vikramsingh, Ramesh Prabhulal, Hindusingh, Nirbhasingh, Pappu, Kamal, etc. Likewise, Geeta (P.W.16) w/o. Tolaram also turned hostile. Therefore, the entire conviction is based on the statement of Tolaram (P.W.1) and examination-in-chief of Bhagwan Singh (P.W.2), both are father and son and have criminal records and also involved in the Panchayat elections against some of the appellants. They were also associated with the liquor licensees. However, all other witnesses have not identified the accused persons and denied their involvement. They have admitted that the incident took place in the house of Tolaram (P.W.1) and they have also not denied the death of Nirbhaysingh in the said incident. Hence in the absence of the support of injured witnesses, the testimony of P.W.- 1 is not sufficient to uphold the conviction of all the appellants.
14. Shri C.L. Yadav, learned senior counsel appearing for the appellants - Bhagwan Singh and Mansingh in Cr. Appeal No. 467/2013 argued that as per the allegations in Dehati Nalisi , FIR and statements of Tolaram (P.W.1) and Bhagwan Singh (P.W.2), Bhagwan Singh fired the gun-shot on Nirbhaysingh and due to which he died. Vide Exh. D/8 memorandum of Bhagwan Singh was recorded u/s. 27 of the Evidence Act and on his disclosure a gun was recovered and seized from his house vide Exh. P/11. It was seized by R.D. Borasi, Sub Inspector P.W.- 13. Learned senior counsel further submitted that the aforesaid gun was later on claimed by one Mr. Mehul Bhavsar and which has been found proved from the report submitted by the SDOP, Shajapur. As per the report the said gun belongs to Mehul Bhavsar which he deposited before the assembly
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CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 elections in the year 1998 in the police station and in an inquiry it has been established that Sub Inspector R.D. Borasi was responsible for the illegal act of seizure of the gun from Bhagwan Singh. Learned trial Court has also examined this report and held that the recovery of the gun from Bhagwan Singh is illegal and cannot be accepted. Learned senior counsel submits that now it is a case where there is no recovery of the gun from Bhagwan Singh, hence the allegation that he fired the gun-shot is not established and the appellants are liable to be acquitted. This is a case of false implication of Bhagwansing.
15. It is correct that the prosecution has failed to prove the seizure of the gun which is said to have been used in the commission of the offence by Bhagwan Singh as per the report of the SDOP. The gun which was seized from Bhagwansing belongs to Mehul Bhavsar. Despite the above report submitted by the SDOP, P.W.-13 R D Borasi dared to justify recovery by entering in the witness box. At that time , he was facing Departmental Enquiry but made a false statement in court.
16. There is another important aspect that SHO Ramvallabh Singh Chouhan did not enter into the witness box to give evidence as he expired during pendency of the trial. Apart from the aforesaid, report by SDOP, there is no ballistic report of the expert as to whether the said gun as well as other country-made pistols which were seized were used in the commission of the offence.
17. There is only one report of the Armour, Police Line, Shajapur vide Exh. P/4 has examined the working condition 12-bore gun recovered from Radheshyam and as per the description given by him, there is no specific report that it was in a working condition.In order to
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CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 prove the aforesaid fact, Indersingh Rawat, Head Constable was examined as P.W.3 who was posted as Arm Moharir in Police Station Shajapur. In his cross-examination he admitted that he did not conduct the test fire. According to him, only the arms were sent for verification without any seizure memo. Therefore, in the absence of a ballistic report, no finding can be given that the said arms were used in the commission of the crime.
18. According to the prosecution, Nirbhaysing had an enmity with Vikramsingh. It has also been admitted by Tolaram (P.W.1) and Bhagwan Singh (P.W.2) that the accused Bhagwan Singh is not a resident of their village, therefore, his presence on the spot with Vikramsingh and others becomes doubtful.
19. In Cr. Appeal No.258/2013 filed by Hukumsingh, Mokamsingh, Hindusingh, Shivram, Radheshyam and Sitaram, out of which Radheshyam was carrying a gun, Hukumsingh was carrying a stick with 'Fersi' and rest of them were carrying 'Lathi' (stick). Tolaram (P.W.1) and only 11 out of 20 accused who assaulted them and thereafter, made general allegations against all the accused persons. No overt act has been assigned to these appellants. Therefore, Shri Z.A. Khan, learned senior counsel appearing for the appellants rightly submitted that the appellants have falsely been implicated in this case and convicted with the aid of Section 149 of the IPC. There are omissions and contradictions in the cross-examination of Tolaram (P.W.1) as discussed in above paras. According the learned senior counsel, there is a vast difference in the place where the dead body of Nirbhaysingh was found as a spot map and the place disclosed by Tolaram (P.W.1) in his deposition. Learned senior counsel has placed
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CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 reliance over the judgment of this Court in the case of Vijay Singh V/s. State of M.P. : 2004 (4) MPLJ 543. He submits that the spot map is an important piece of evidence. Tolaram (P.W.1) has said that the other accused also fired gun-shots who were carrying country-made pistols, but no one sustained injuries except Nirbhaysingh. There is no seizure of the blood-stained clothes of the injured. Appellant - Radheshyam has been implicated because Nirbhaysingh was defeated by him in the Panchayat elections. It is also submitted that the arms and other articles were not produced before the Court. Only one seizure witness has been examined who has not supported the prosecution, therefore, the seizure of the weapons are also doubtful. As many as 18 articles were sent for chemical examination to the FSL, Sagar, but only in the clothes of the deceased human blood stains were found. In none of the weapons like 'Lathi', 'Fersi', sword, etc, the blood were not found coupled with the fact that only one seizure witness viz. Said Khan (P.W.4) was examined out of two witnesses and who has completely denied the seizure in his presence. Therefore, the prosecution has failed to prove the recovery of articles from these appellants.
20. Criminal Appeal No. 193/2013 has been filed by appellants - Ramsingh @ Rama and Babulal. Shri Manoj Saxena, learned counsel appearing for these appellants has argued that the seizure of the articles has not been proved. All the arms were sent to the FSL, but blood was found on the said arms. Only one seizure witness has been examined and who has not supported the prosecution case. Once Bhagwan Singh S/o. Tolaram (P.W.2) has not supported the prosecution case in his cross-examination, then the provisions of
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CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 Section 138 of the Evidence Act ought to have been applied. He was not cross-examined by the public prosecutor, therefore, his testimony cannot be relied on. He has placed reliance on the judgment of the apex Court in the case of Javed Masood and another V/s. State of Rajasthan: AIR 2010 SC 979 (Para 10).
21. Criminal Appeal No.267/2013 has been filed by the appellants - Natwarsingh, Sitaram, Kamal and Vikram S/o. Sitaram. Shri Manu Maheshwari and Shri Syed Asif Ali Warsi, learned counsel appearing for these appellants, submitted that Tolaram (P.W.1) in his statement has not named appellants - Natwarsingh and Kamal. Likewise, Bhagwan Singh (P.W.2) has also not named these two appellants. There are general allegations that all the accused have assaulted the deceased and injured. No overt act has been attributed to these appellants. Hence, the appellants are liable to be acquitted.
22. Criminal Appeal No.252/2013 has been filed by the appellant - Pappu S/o. Babulal from whom 'Lathi' and 'Fersi' was recovered. Shri Manu Maheshwari, learned counsel for the appellant, argued that no overt act has been attributed to this appellant. He has wrongly been convicted with the aid of Section 149 of the IPC. This appellant has been acquitted from the charge u/s. 148 of the IPC. He has placed reliance on the judgment of the apex Court in the case of Mohammed Ankoos V/s. Public Prosecutor : (2010) 1 SCC 94, which says that if there is an acquittal from charge u/s. 148, then there cannot be a conviction under section 149 of the IPC. No previous enmity of this appellant with Nirbhaysingh has been established. Therefore, this appellant deserves to be acquitted.
23. Criminal Appeal No. 280/2013 has been filed by the appellants
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CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013
- Nirbhaysingh S/o. Devisingh, Karansingh, Prabhulal and Ramesh. Shri Vivek Singh learned counsel appearing for these appellants, has argued that the prosecution has utterly failed to prove the charges against the appellants. The conviction of the 19 accused cannot be upheld only on the basis of the testimony of Tolaram (P.W.1) and half testimony of Bhagwan Singh (P.W.2). The wife of the deceased has not supported the prosecution case. The recovery of guns from Radheshyam has not been established. Therefore, the appellants deserve to be acquitted of all the charges.
24. On the other hand, Shri Sudarshan Joshi, learned Govt. Advocate appearing for the respondent/State, has argued in support of the impugned judgment. Learned Government Advocate supported the impugned judgment that Tolaram (P.W.1) and Bhagwan Singh (P.W.2) have fully supported the prosecution case and there is no reason to doubt their testimony as they were present on the spot and they also sustained the injuries. Bhagwan Singh (P.W.2) was cross-examined after a period of one year, therefore, he has been win-over by the appellants. Learned Government Advocate relied on the decision of the Supreme Court in Khujji v. State of M.P. AIR 1991 SC 1859, to conclude that where the cross-examination of witnesses took place after a considerable delay, such examination "can be totally ignored". Hence in view of the law laid down by the apex Court in the case of Khujji Versus State of M.P. reported in, his examination-in-chief has rightly been relied on by the learned trial Court. If there are lapses found on the part of the Investigating Officer in respect of the recovery of guns and other articles, it will not falsify the prosecution case. The cause of death of Nirbhaysingh due to gunshot injury has been proved. The other family
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CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 members also sustained injuries, therefore, they cannot be doubted. There is no delay in the lodging Dehati Nalisi as well as FIR. The MLC and postmortem report supports the incidence. In case of an attack by 20 persons, it is very difficult to specify as to who assaulted to whom, therefore, no interference is called for and the appeals are liable to be dismissed.
25. The investigation started after recording of Dehati Nalisi (Exh. P/1) on 12.12.2007 at 10.30 by Ramvallabh Singh Chouhan, T.I., Kotwali, Shajapur. He carried out the initial investigation but died during pendency of the trial hence he could not be examined. However, Dehati Nalisi (Exh. P/1) has been exhibited by Tolaram (P.W.1). According to Dehati Nalisi (Exh. P/1), Accused Bhagwan Singh fired the gun-shot on the back of Nirbhaysingh and he fell down. The complainant - Tolaram has further stated that Nirbhaysingh died on the spot and family members took him on the tractor trolley. Jeevan and Dilip were driving the tractor when they reached in front of the house of Sitaram, Radheshyam and others attacked on them, in which, he sustained head injuries. 'Dehati Merg' intimation has been exhibited as (Exhibit- D/2 written at Police Station Shajapur at 10.50 by late R.B.S. Chouhan in which Tolaram gave information that he along with Nirbhaysingh @ Nabbu, Hindusingh, Prabhusingh and other family members was sitting in front of the house, Jeevan and Dilip came on tractor, near the house of Sitaram, Radheshyam with others armed with gun, sword, 'Lathi', 'Fersi' attacked on them. Bhagwan Singh fired the gun-shot which hit on the back of Nirbhaysingh and he fell down. Thereafter, he saw that Nirbhaysingh has died. In the entire evidence in examination-in-chief, Tolaram
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CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 (P.W.1) has not discussed about the Dehati Merg Intimation (Exhibit- D/2). But in Dehati Nalisi (Exh. P/1) and Dehati Merg Intimation (Exh. D/2), the place of fire of gun-shot by Bhagwan Singh is totally different. According to Exh. D/2, when Tolaram was going in a tractor with Dilip and others, the deceased Nirbhaysingh was alive and did not sustain any injury, but as Exh. P/1 Nirbhaysingh died on the spot in the courtyard of his house. He was confronted with Exhibit D/1 by the defence counsel, but he simply avoided that he does not remember about Exhibit D/2 and Exhibit D/3. In Exhibit D/2 he has only named Bhagwan Singh who fired the gun-shot. The fact remains that R.B.S. Chouhan who recorded Exh. P/1 and Exh. D/2 both have not been examined in court. Even from the ocular evidence as well as the spot map, the places where the dead body was lying, are altogether different. The prosecution has not been able to prove whether Nirbhaysingh died in the courtyard of the house of Tolaram and he died in front of the house of Sitaram. There is no spot map on record in respect of the incident said to have taken place in front of the house of Sitaram and an investigation is also missing.
26. At the cost of repetition, the recovery of the gun from Bhagwan Singh has not been found proved by the prosecution and there is a serious lapse on the part of R.D. Borasi Station House Officer against whom departmental inquiry was initiated. In the Court, he tried to support the prosecution case that he seized the gun from the house of Bhagwan Singh, but in the cross-examination he admitted that the said gun belongs to Mehul Bhavsar. So far as recovery of other arms from other accused persons is concerned, the Court has found that their seizure has not been legally proven. There is no test-fire or ballistic
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CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 report of the country-made pistols. Hence all the recoveries are doubtful.
27. Only Tolaram (P.W.1) has supported the prosecution case but he can not said to be a reliable witness because of so many omissions and contradictions in his evidence. He is also having a criminal record and had enmity with accused persons, political rivalry, and association with liquor licensees. In defence al, the FIRs have been filed and exhibited. So far the conduct of Bhagwan Singh (P.W.2) is concerned in examination-in-chief he supported the prosecution case but in his cross-examination, he has not supported it. Thereafter, he was not cross-examined or further examined by the public prosecutor. There is no compliance of Section 138 of the Evidence Act. The trial Court has believed that he has been win-over, but the fact remains that all other injured persons have also not supported the prosecution case and the trial Court has simply said that they have been win-over by the appellants who were in jail during the trial. Therefore, on the basis of faulty investigation, seizure of the wrong arm, no ballistic report, and no blood was found on the arms recovered from the accused, no specific findings have been given by the learned Additional Session Judge as to who caused injuries to which injured person. The P.W.- 2 cannot said to be a reliable witness whose testimony is not sufficient to hold that the prosecution has proved the charge of section 302 against the appellants beyond reasonable doubt hence the appellants are entitled for the benefits of doubt. Therefore, with the aid of Sections 147 and 149, all appellants have wrongly been convicted u/s. 302 of the IPC.
28. As per the seizure memo, 12 Bore country-made pistols were
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CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 recovered from Rama @ Ramsingh, Radheshyam and Vikram. One pistol is said to have been recovered from Bhagwan Singh but not established. Out of 4 recoveries of firearms, only Rama @ Ramsingh has been convicted u/s. 25(1-B)(A) of the Arms Act. The rest of the accused, from whom Fersi, Lathi, Iron Pipe, etc. were recovered, but as discussed above, no blood stains were found on the said articles.
29. So far as conviction of all the appellants u/s. 302 of the IPC is concerned, as per the allegations, Bhagwan Singh fired the gunshot on the back of the deceased Nirbhaysingh @ Nabbu and the other accused assaulted him. As per the statement of P.W.- 12 Dr. N C Jhala, the deceased sustained as many as 13 injuries, out of which, injuries Nos. 1 to 4 were caused by hard and sharp objects; 5 to 10 were caused by hard and blunt objects; and 11 to 13 were caused by pallets. The deceased died because of excessive bleeding in the stomach region due to the injuries caused by pallets. The death of Nirbhaysingh was caused due to gunshot injuries and the rest of the injuries were not on vital parts of the body, for which, all the appellants have convicted u/s. 148,323/149 and 324/149 of the IPC. Since recovery of the gun has not been established from Bhagwan Singh, rather it is a case of concocted recovery of the gun to implicate him for the murder of the deceased Nirbhaysingh therefore, his convicted u/s. 302 of the IPC only on the oral testimony of Tolaram P.W.- 1 cannot be upheld. In the report submitted by the DSP, at the time of recovery of the gun, Bhagwan Singh was already in jail. Ramchandra and Vishnu both have stated before the DSP that they signed the blank papers on the instruction of R.D. Borasi, therefore, the death of Nirbhaysingh @ Nabbu due to the gun-shot fired by Bhagwan Singh has not been
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CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 established. The appellant - Bhagwan Singh is liable to be given the benefit of the doubt and hence acquitted under section 302. That there is no allegation against Ramsingh, Vikram and Radhesyam from whom locally made firearms were recovered, that they shot Nirbhaysing, hence they cannot be convicted under section 302 of I.P.C.. Hence all the appellants / accused persons are liable to be convicted u/s. 148, 323/149 and 324/149 of the IPC and they are hereby acquitted from Sections 302 and 302/149 of the IPC.
30. So far as conviction of all the appellants/ accused u/s. 307/149 of the IPC is concerned, the learned trial Court has discussed the injuries sustained by the injured and the deceased in paragraphs 8, 9, 10, 11, 12 and 13 of the impugned judgment. Tolaram sustained 3 injuries, out of which, two are contusions and one is incised on the left parietal region of the head, but as per the X-ray report, there was no fracture. Bhagwan Singh S/o. Tolaram sustained 4 injuries, out of which, two were incised wounds, one was a lacerated wound in the index finger, and one was abrasion on the upper part of the nose and on an X-ray report fracture in the little finger was found. Whereas, Tolaram in his statement stated that both hands were cut by the accused persons. Geeta sustained two injuries, out of which, was a lacerated wound on the temporal region on the right side of the head, but no fracture was found, and one swelling on the upper part of the pelvic. Hindusingh sustained 3 injuries, out of which two were abrasions on the left elbow and the right shoulder; and pain on his back but there was no sign of any injury. Suganbai also complained about pain in the left pelvis and one lacerated wound on the left parietal region of the head no fracture was found. Anarji also sustained
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CRA Nos. 193/2013, 252/2013, 258/2013, 267/2013, 280/2013 & 467/2013 two minor injuries. Dr. Jhala (P.W.12) has not stated that all the injuries sustained by the injured on vital parts of the body were dangerous to life. But the learned trial Court has convicted wrongly all the appellants u/s. 307/149 of the IPC. Hence the Conviction of the appellants u/s. 324/149 and 323/149 of the IPC are sufficient, therefore, conviction u/s. 307/149 of the IPC is unsustainable and the same is liable to be set aside.
31. In view of the foregoing discussion, these criminal appeals are partly allowed. The conviction of the appellants in all the aforesaid appeals u/s. 302, 302/149 and 307/149 are hereby set aside, however conviction and sentences u/s. 324/149 and 323/149 of the IPC are hereby affirmed.
Those who are in jail be released forthwith if not required in any other crime, and those who are on bail, their bail bonds are hereby discharged. Record to the session trial be sent back.
[VIVEK RUSIA] [ANIL VERMA]
JUDGE. JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2023.08.26 14:21:32 +05'30'