Madhya Pradesh High Court
Ganji vs State Of M.P. on 15 November, 2021
Author: Vivek Rusia
Bench: Shailendra Shukla, Vivek Rusia
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HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
D.B.: Hon'ble Shri Justice Vivek Rusia
Hon'ble Shri Justice Shailendra Shukla, JJ.
Criminal Appeal No.225/2009
Ganji S/o Kalya, aged about 48 years,
R/o Village Mundiya Maharaj Falya, Appellant (s)
District Khargone (M.P.) At present
Address- Kendriy Jail, Indore.
Versus
State of Madhya Pradesh through Police
Station - Chainpur, District West Nimar, Respondent (s)
M.P.
Shri B.K. Mishra, learned counsel for the appellant.( Through Legal
Aid).
Ms. Vinita Phaye, learned Government Advocate for the
respondent/State.
JUDGMENT
(Heard and reserved on 08.11. 2021) (Delivered on 15.11.2021) PER VIVEK RUSIA, J: -
This appeal is filed under Section 374 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") arises against the judgment of conviction dated 29.11.2008, passed by 3rd Additional Sessions Judge, West Nimar in Sessions Trial No.129/2008, by which the appellant has been convicted for an offence under Sections 302/34 of Indian Penal Code (for short "IPC") and sentenced to undergo life imprisonment and fine of Rs. 100/- with default stipulation.
(2) The case of the prosecution, in brief, is as follows: -
(i) It is admitted fact that Ramsingh (hereinafter referred to as "
deceased' ) was father-in-law of Westa (PW-1), grandfather of Shivram and Suraj (PW-2&3) and father of Somariya (PW-4). The investigation was carried out by Investigating Officer Narendra Singh Borana (PW-7).
(ii) As per the prosecution story on 25.04.2008 near about 06:00, the deceased Ramsing was digging the Well in an agricultural field
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situated in Gram Mundiya, P.S. Chainpur, District Khargone along with Vesta (PW-1), Suraj (PW-3) and Shivram (PW-3) . At that time, the appellant came with a bow and arrow and started abusing them with filthy language. He has objection to the digging of his land by the deceased and ors , with the intention to kill he shot the arrow, which hit Ramsingh on his chest, he fell and died on the spot. Thereafter, Lalu and Balu sons of the appellant started pelting stones at them. Due to fear Vesta (PW-1), Shivram (PW-2) and Suraj (PW-3) fled away from the spot. After one hour, they came back and found Ramsingh is dead. Vesta (PW-1) lodged a report on 25.04.2008, near about 07:30 (Ex.P/1) at Police station-Chainpur. The offence was registered under Section 302/34 of I.P.C. against the appellant, Balu and Lalu. The son of the appellant i.e. Balu and Lalu remained absconding to date.
(iii) The investigation was carried out by Narendra Singh Borana (PW-7). He prepared a lash panchnama after drawing Safina form (Ex.P/2) in presence of five witnesses. Prima facie the death was found to be homicidal because of the injuries by way of the arrow. He recovered the plain soil, blood soil, a broken arrow from the spot and prepared seized memo vide Ex. P/4. The appellant was arrested vide Ex. P/6. On his disclosure memorandum (Ex.P/7), a bow was recovered, which was seized vide seizure memo Ex. P/5.
(iv) Dead body of the deceased was sent to the community health centre Jhiranya, where Dr. Hukumchand Soni (PW-9) has conducted the autopsy and he opined that the deceased was died because of an incised wound on chest . The investigation Officer prepared a spot map (Ex.P/9) and sent the seized article to FSL vide draft Ex. P/10. The FSL sent report Ex. P/15 and according to which in the shirt of deceased and arrow human blood was found. The police recorded the statement of PW-1 to PW4 under Section 161 of Cr.P.C. Completed the charge-sheet and filed it in the court the Judicial Magistrate First Class. The trial was committed to the Sessions Court, after framing of charge under section 302 I.P.C. the appellant denied the charges and
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pleaded for trial.
(3) The prosecution has examined as many as 9 witnesses namely Vesta (PW-1), Shivram (PW-2), Suraj (PW-3), Somariya (PW-4) Khajan (PW-5), Holiya (PW-6), Narendra Singh Borana (PW-7) and Devram Kumrawat (PW8) and Dr. Hukumchand Soni (PW-9) and exhibited 15 documents as Ex.P/1 to Ex. P/15. In defence, the appellant did not examine any witnesses but at his instance at the time of cross-examination, the statement of four witnesses recorded under Section 161 of Cr.P.C. PW-1 to PW-4 were marked as D/1 to D/4.
(4) After valuing the evidence, came on record, the learned 3 rd Additional Sessions Judge has convicted and sentenced the appellant as stated above. Hence, this appeal before this Court.
(5) Learned counsel for the appellant has argued that the appellant has not committed any offence as he is an innocent person. He has falsely been implicated in this case on the basis of the statement of PW-1 to PW-4, who are close relatives of the deceased. No independent witnesses have been examined in this case. The deceased died because he fell down and sustained injuries from an arrow in his hand. The conduct of the PW-1 to PW-3 is unnatural instead to save the deceased, they fled away from the spot and returned after one hour and such conduct of the PW-1 to PW-3 makes their presence doubtful.
It is further submitted that the police have recovered a broken arrow from the spot and the remaining part of the arrow did not recover from the spot, therefore, shooting of the broken arrow from the bow is not possible. The deceased was aged about 70 years at the time of the incident, there was no intention to kill. If this Court comes to the conclusion that the appellant has committed the offence but he did not planed murder. He has committed the offence out of anger because the deceased and ors were digging his land, hence, the offence will be culpable homicidal without amounting to murder and hence, the appellant is liable to be convicted under Section 304 (Part II) of I.P.C. for which he has undergone sufficient period of incarceration. Hence, a
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jail sentence may kindly be reduced alive to already undergone. The appellant is not a habitual offender.
(6) Per contra, learned government advocate has argued in support of impugned judgment and according to him, PW-1 to PW-4 has supported the case of the prosecution. The cause of death is not in dispute. Two sons of this appellant, who are also accused in this have not been surrendered so far. The appellant shot the arrow from a close distance with the intention to kill the deceased. Hence, he has rightly been convicted under Section 302 of I.P.C. Hence, the appeal may kindly be dismissed.
We have heard learned counsel for the parties and perused the record of the trial court.
(7) Dr. Hukumchand Soni (PW-09), who conducted the autopsy of the deceased found one scratch wound which is simple in nature. One incised wound size 1/2 x1/6 on chest near left nipple deep up 4 cm and contusion 2x2 cm near occipital region. One lacerated wound size 1/2x1x1/2 cm. He has also found a fracture in the occipital region. According to him actual cause of death could not be found out, hence visra was preserved otherwise he has died because of excessive bleeding from the incised wound on the chest. In cross-examination, he has admitted that if any person carrying sharp edges weapon and fell while running, he may sustain the said injury. No query report has been obtained by the police with an arrow to the doctor to ascertain whether such injury might have been caused by said arrow. This is a serious lapse on the part of the prosecution, however, on the basis of the opinion given by the doctor, the deceased died because of an incised wound sustained on his chest, therefore, the death is homicidal, hence, we accordingly affirm the same.
(8) In support of the prosecution story Vesta (PW-1), states in the court that he , the deceased Ramsingh, Suraj and Shivram went to the agricultural field for digging well. After digging the well they were sitting near the well. The appellant came with a bow and arrow and
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started abusing them. The deceased has objected to it, then he said that why they were digging the well in his field and with the intention to kill, he shot the arrow which hit on the chest of the deceased and he fell down. Immediately co-accused Lalu and Balu son of the appellant came there and started pelting the stone. He , Shivram and Suraj have fled away from the spot and returned after one hour. Thereafter, they went to the house of Somariya (PW-4) s/o of the deceased and narrated the entire incident. Then he lodged the FIR and police came to the spot. In cross-examination, he has admitted that they were digging the well for the last two days without any contract and payment. He also stated that the appellant shot the arrow from 10 feet distance and they did not do anything and kept watching. According to him, Balu and Lalu have pelted 20-25 stones but none of them hit them. They have also not stated that any of the stones hit the deceased, therefore, there is no explanation on the part of witnesses as well as prosecution as to how the deceased sustained the fracture on occipital. He was given a suggestion by the defence counsel that the deceased was aged about 70 years and suffered from tuberculosis, hence he fell and sustained the injury but he denied the same. A suggestion was also given that the deceased was carrying a bow and arrow and while running he fell and sustained the injury from the arrow but he admitted that he was carrying a small stick. Similar evidence was given by Shivram (PW-2) who is the grand son of the deceased. According to him Lalu and Balu pelted 15-20 stones but non of the stone hit him and Shivram. Only one stone hit Vesta. He has also stated that Rajaram, Chhitriya and Badiya came to the spot but the prosecution has not examined any of them. According to him, the appellant has shot 4-5 arrows upon them but no one hit them but there is no recovery of other arrows and stones from the spot except broken arrow. The remaining part of the arrow has also not been recovered from the spot. It is not possible to shoot the broken arrow from the bow. The prosecution has not established how the deceased sustained two more injuries out of which one is in the occipital region, therefore, it appears that the deceased might have
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fell on the stone and sustained a fracture since he was carrying a small stick sustained stabbed wound on his chest. There is no query report by the doctor confirming the injury was caused by an arrow although the human blood was found on the arrow no blood group was ascertained. It is also doubtful whether the appellant has caused the injury by means of the arrow through the bow as a stabbed injury, therefore, due to the lapses on part of the prosecution and to establish the charges beyond a reasonable doubt the appellant is entitled to benefit of the doubt.
(9) The conduct of the PW-1 to PW-4 was also unnatural. Vesta (PW-1) is son-in-law of the deceased and Shivram (PW-2) and Suraj (PW-4) are the grandsons of the deceased, all ran away from the spot without taking any steps to save and bring the deceased to the hospital.
They have returned after one hour and by that time, the deceased had already died. There is no medical examination of Vesta. He has not stated in his statement recorded under Section 161 of Cr.P.C. that he suffered injury from stone. The police did not recover stones from the spot. No independent witnesses have been examined.
(10). Somariya (PW-4) is a hearsay witness. He was not present on the spot. In cross-examination he has admitted that there was a dispute between the son and daughter-in-law of the appellant and to resolve the same, he took Rs. 10,000/- from him and gave 5 acres of land. The appellant is having the remaining five-acre land adjacent to his land. He has also admitted that the appellant sold the land to him in presence of four panches. The has also admitted that there was a dispute in re- spect of the return of land with the appellant. Despite the presence of independent witnesses non of them came forward to give evidence. Therefore, on the basis of all relative witnesses, the appellant has been convicted in this case. In the case of Shailendra Rajdev Pasvan v. State of Gujarat, reported in (2020) 14 SCC 750 the Supreme Court of India has held as under
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14. This Court in Trimukh Maroti Kirkan v. State of Maharash- tra [Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] has enunciated the aforesaid principle as under "12. ... The normal principle in a case based on circumstantial evi-
dence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly point- ing towards the guilt of the accused; that the circumstances taken cu- mulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explana- tion on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence."
13. Thus, the entire case of the prosecution is based on circumstantial evidence. It is well settled that in a case which rests on circumstantial evidence, law postulates twofold requirements:
(i) Every link in the chain of the circumstances necessary to establish the guilt of the accused must be established by the prosecution be- yond reasonable doubt.
(ii) All the circumstances must be consistent pointing only towards the guilt of the accused.
(13). Taking into consideration the above-said facts and circumstances, we proceed to pass the following order:
(i) Criminal Appeal is allowed.
(ii).The judgment and conviction dated 29.11.2008 passed by 3rd Additional Sessions Judge,Khargone, District West Nimar passed in Session Trial No.129/2008 is hereby set aside.
(ii) The appellant is acquitted from the charges under Section 302 of I.P.C. he is ordered to be released forthwith if he is not required in any other case.
The registry is directed to send back the Trial Court records forthwith along with the copy of this judgment.
( VIVEK RUSIA ) ( SHAILENDRA SHUKLA )
JUDGE JUDGE
Digitally signed by PRAVEEN
NAYAK
Date: 2021.11.16 10:20:37 +05'30'