Madhya Pradesh High Court
Rajesh & Anr. vs State Of M.P. on 22 February, 2018
1 CRA. No.826/2005
THE HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR
DIVISION BENCH
(Rajendra Mahajan & Anand Pathak, J.J.)
CRIMINAL APPEAL No.826/2005
1- Rajesh S/o Shri Kamal Singh Sharma
Aged 32 years Occupation Agriculturist,
R/o Village Karera, Police Station Baraso,
District Bhind (M.P.)
2- Karu alias Kalicharan S/o Shri Kamal Singh Sharma
Aged 22 years Occupation Agriculturist
R/o Village Karera, Police Station Baraso,
District Bhind (M.P.)
Appellants
Versus
State of M.P. through Police Station
Baraso,District Bhind (M.P.)
Respondent
For appellants :- Shri A.R. Shivhare, Ld. counsel
For respondent/State :- Shri J.M. Sahni, Ld. Public Prosecutor
_________________________________________________________
JUDGMENT
(Pronounced on 22nd day of February, 2018) Per Justice Anand Pathak, The appellants-accused have preferred this appeal under Section 374(2) of Cr.P.C. against the judgment and order dated 05/10/2005 passed by the Sixth Additional Sessions Judge (fast track) Bhind in S.T. No.200/2002, whereby appellant No.1- Rajesh has been convicted under Sections 302/34 and 354/34 of the IPC and sentenced to suffer rigorous Life Imprisonment in the former count and one year rigorous imprisonment in the 2 CRA. No.826/2005 latter count respectively and appellant No.2-Karu @ Kalicharan has been convicted under Section 302 and 353 of the IPC and sentenced to suffer rigorous Life Imprisonment in the former count and one year rigorous imprisonment in the latter count respectively.
2. The prosecution case, in brief, is that on 22/06/2002 at around 9:20 pm at Village Karera, one police party with complainant B.P. Dwivedi (PW-16) the Assistant Sub Inspector of Police Station Baraso, went to investigate the murder of Gyan Singh committed in village Karera on the same day. There the police party got an input that assassin of Gyan Singh, Lakhan Singh Gurjar and his accomplice, who had friendly relationship with the present appellants, were present in their house. On receiving such information, complainant-B.P. Dwivedi (PW-16) and other police personnel as referred in para 2 of the impugned judgment went to the house of the present appellants for inquiry. Over the roof of the house, 5-6 people were seen in the torch-light. Amongst them appellants Rajesh and Karu @ Kalicharan were also present. Kalicharan had 12 bore double barrel gun. When they were asked to step down, appellant No.1-Rajesh started hurling abusive language at the police party and he alongwith other males and females (of the house just opposite to his house) started throwing bricks and stones at the police party. Meanwhile, appellant No.1-Rajesh was asked to open the door and in return, all the accused started exhortation with abusive language. Appellant No.2-Karu @ Kalicharan with intention to kill, fired one gun shot from the rooftop which went into vain. At the same time, Head Constable Sanjeev Bhadoriya (since deceased) who was standing in the corridor came out in the Gali and asked Karu @ Kalicharan not to fire and asked him to come down. In response to which Lakhan Singh fired one gun shot which resulted into hairline escape. Head constable-
3 CRA. No.826/2005Sanjeev Bhadoriya with rifle, tried to combat with them, but appellant No.2- Karu @ Kalicharan fired another gun shot which hit the head constable-Sanjeev Bhadoriya, killing him on the spot.
3. Dehati Nalshi (Ex.P-16) was noted down by ASI B.P. Dwivedi (PW-16). Later, the crime was registered vide FIR Ex.P-8 in Police Station Baraso at Crime No.17/2002. Safina (Ex.P/2) was issued and Lash Panchnama of the deceased was prepared. Blood stained soil, plain soil, pieces of bricks, scratches of cement, sand and broken bones of skull of the deceased, one licence gun and empty cartridge were seized vide seizure memo (Ex.P-2). Spot map Ex.P-11 was prepared and dead body of Sanjeev Bhadoriya was referred to for autopsy. Dr. K.P. Rajoriya (PW-19) and Dr. R.K. Taneja (PW-
20) conducted postmortem on the body of the deceased and gave postmortem report Ex.P-18. In the course of investigation from the of appellant No.2-Karu @ Kalicharan, one 12 bore double barrel gun with two live cartridges were seized vide seizure Ex.P-3 and case diary statements were recorded.
4. After investigation, a charge-sheet was filed before the Court of Additional Chief Judicial Magistrate, Mehgaon. The Court committed the case to the Sessions Court. The learned Sessions Judge framed the charges against all the accused persons. They abjured their guilt and opted for trial. The prosecution examined as many as 21 witnesses whereas defence has also examined 5 witnesses in their support by stating that they have been falsely implicated because of animosity.
5. Initially charge-sheet was filed against 9 accused persons including the present appellants. Accused No.9-Lakhan Gurjar was declared absconding and the trial was conducted against remaining 8 accused persons. The charges levelled against all 4 CRA. No.826/2005 were not found proved against the other accused persons therefore, all other persons were acquitted from the charge of Sections 353 and 148 of IPC whereas present appellants Rajesh and Karu @ Kalicharan were convicted as referred to above therefore, they have preferred this appeal.
6. According to learned counsel for the appellants, the trial Court erred in coming to the conclusion about the role of appellant No.1-Rajesh as well as appellant No.2-Karu @ Kalicharan. According to him, the night was dark and in the torch light, it was not possible for the raiding police party to ascertain the identity. The house in question was inhabited many persons and therefore, once the gathering is large then who shot the fire over deceased cannot be ascertained. Here in the present case, it was not proved by the prosecution beyond doubt that fire which took the life of the deceased Sanjeev Bhadoriya was shot by present appellant No.2-Karu @ Kalicharan therefore, the trial Court erred in passing the impugned judgment against appellant No.2-Karu @ Kalicharan. He relied upon the judgment of the Hon'ble apex Court in the case of Abdul Sayeed Vs. State of M.P., 2010 (4) Crimes 86 (SC). It is further submitted that the statements of the witnesses have been taken after a considerable period of time and therefore, these statements have lost evidentiary value. There are material contradictions amongst the Dehati Nalshi, FIR and subsequent statements of the witnesses. He relied upon the judgment rendered by the Hon'ble apex Court in the case of Ram Kumar Pandey Vs. State of M.P., AIR 1975 SC 1026. It is further submitted in support of submission for appellant No.1-Rajesh that no role was attributable to him for imposition of criminal liability of Section 302/34 of IPC. Appellant No.1-Rajesh shared no common intention with appellant No.2-Karu @ Kalicharan. No prior meeting/ incidence 5 CRA. No.826/2005 of mind existed and proved between both the appellants. The prosecution could not establish the same still the trial Court convicted appellant No.1-Rajesh with aid of Section 34 for the offence under Section 302 of IPC, the same is bad in law. He relied upon the judgment rendered by the apex Court in the case of Nagaraja Vs. State of Karnataka, 2009 (1) Crimes 278 (SC) and submits that persons can not be convicted by applying doctrine of vicarious liability, his participation in the crime unless existence of common intention is established by the prosecution. Even any past enmity by itself may not be a ground for drawing any inference of formation of common intention amongst the parties. It depends upon facts of each case and in the present case, appellant No.1-Rajesh cannot be held guilty for the offence punishable under Section 302/34 of IPC. He also relied upon the judgment of Hon'ble apex Court in the case of Jainul Haque Vs. State of Bihar, AIR 1974 SC 45. According to counsel for the appellants, Ex.D-5 wireless message shows that Lakhan Gurjar killed the police man and this fact has been accepted by ASI B.P. Dwivedi (PW-16) therefore, the said wireless massage is to be treated as First Information Report and subsequent steps like Dehati Nalshi and FIR are to be treated as statements under Section 161 of Cr.P.C.
7. Learned counsel for the respondent/ State opposed the submissions of the counsel for the appellants and on the basis of evidence of the prosecution witnesses asserted that eye witness account establish the fact that appellant No.2-Karu @ Kalicharan fired a gun shot over deceased Sanjeev Bhadoriya who succumbed to injuries because of it. On the basis of ocular evidence, medical evidence as well as report of the Forensic Science Laboratory, Sagar, guilt of appellant No.2-Karu @ Kalicharan is established, therefore, he has rightly been 6 CRA. No.826/2005 convicted under Section 302 and Section 353 of IPC for life imprisonment alongwith one year rigorous imprisonment. Similarly, appellant No.1-Rajesh participated in the commission of the crime in such a manner that he developed common intention with appellant No.2 to kill the police man. He prayed for dismissal of the appeal.
8. We have given our full consideration to the submissions raised by the learned counsel for the parties at Bar and perused the impugned judgment and material on record.
9. The first and foremost question in the case in hand is the nature of death of the deceased Head Constable-Sanjeev Bhadoriya; whether it is homicidal, suicidal or accidental in nature. Dr. R.K. Taneja (PW-20) with the help of Dr. K.P. Rajoriya (PW-19) conducted postmortem on the body of the deceased. According to their testimonies, postmortem report Ex.P-18 indicated that the cause of death was excessive bleeding and shock which was caused due to fire arm injury over the head which is the most vital organ of the body. Injuries mentioned in the postmortem report read as under:-
" 1- 2lseh- x <kbZ lseh dk ukd ds Åijh Hkkx ij nk;h vka[k dh rjQ Fkk] ftlds fdukjs vUnj dh vksj FksA ?kko esa dzos Mkyus ij mldh fn'kk ihNs vkSj nk;ha rjQ FkhA 2- nksuksa lkbZM dh iSjk bVy cksu vkDlhVy vkSj iqUVVjsy cksu VwVh gq;h FkhA vkSj mlds dqN VqdMs peMh ls tqMs gq;s FksA fnekx ds dqN VqdMs psgjs ij vkSj diMs ij Qsys gq;s FksA ;s bUVªls cwUM Fkk] tks Qk;j vkElZ ds }kjk igqpk;k x;k FkkA fudkl dk dksbZ cwUM ugha Fkk] D;ksfd flj dh gfM~M;k dbZ Hkkxksa ls VwVh gq;h FkhA 3- g`n; dk ck;ka psEcj [kkyh Fkk vkSj nk;sa esa jDr Fkk isV gqvk FkksMk lk Hkkstu FkkA "
10. From the perusal of the postmortem report and testimonies of expert witnesses PW-19 and 20, no iota of doubt exists that the cause of death was homicidal in nature. The injury was caused by shot of fire arm.
11. Next question comes for consideration is who fired the said shot which hit the head of the deceased causing his death. In support of its case, the prosecution examined 21 witnesses, 7 CRA. No.826/2005 out of which Mohand Singh (PW-1), Surendra Singh (PW-4), Rameshwar Singh (PW-5), Sultan Singh (PW-6), Sateyndra Singh (PW-10), Bhupendra Singh (PW-11) and B.P. Dwivedi (PW-16) were eye witnesses. Mohan Singh (PW-1) in his examination-in-chief has categorically stated that around 5:15 pm, murder of Gyan Singh took place which was caused by Lakhan Gurjar (one of the absconding accused in the present case). He having caused murder, took shelter in the house of appellant No.2-Karu @ Kalicharan therefore, police party raided the village in his search. The said witness after narrating the categorically has stated in his evidence that the night was not dark. He in para 3 categorically has stated that shot fired by the Karu @ Kalicharan hit the deceased Sanjeev Bhadoriya and he died on the spot. He is also the witness of seizure memo Ex.P- 3, Lash Panchnama Ex.P-1 besides blood stained soil, four pieces of skull bone, licence and two live cartridges along with 12 bore double barrel gun. His testimony remained unshaken substantially. The minor omissions surfaced in paras 30 and 34 of his cross-examination which are not material to discard his testimony. As such he supported the prosecution case substantially.
12. Similarly, Surendra Singh (PW-4) also supported the prosecution case in para 3. He has categorically stated that the night was moonlit and lights were on and he also elaborated the course of events. His testimony remained unshaken in the cross-examination. Rameshwar Singh (PW-5) also supported the prosecution case and course of events in para 2 of his examination-in-chief and made a categorical statement that the fire shot by appellant No.2-Karu @ Kalicharan hit the deceased Sanjeev Bhadoriya over his head. He took Dehati Nalshi to the police station wherein FIR was registered. His testimony remained unshaken and he supported the prosecution case to 8 CRA. No.826/2005 the hilt. The same can be said in respect of another witness Sultan Singh (PW-6). Sateyndra Singh (PW-10), Bhupendra Singh (PW-11) also supported the prosecution case. B.P. Dwivedi (PW-16) ASI has also supported the prosecution case and went to the village Karera for investigation of murder of Gyan Singh and therefore, he was a witness of incident right from the beginning.
13. The ground raised by the learned counsel for the appellants that Ex.D-5 wireless message indicates that Lakhan Singh had fired over the deceased Sanjeev Bhadoriya and therefore, it is to be treated as FIR and the FIR does not substantiate the case diary statements of the witnesses made by them. Later on under Section 161 of Cr.P.C. as well as before the trial Court, said statements do not hold good for the reason because the said wireless massage includes the name of appellants Rajesh and Karu @ Kalicharan. The wireless massage sent by police personnel cannot be treated as FIR because it was a communication of the incident given to the Higher up police officers haste seeking reinforcement and additional deployment of police force. In that view of the matter Ex.D-5 wireless massage cannot be treated as FIR.
14. Another aspect worth consideration in this regard is that in the whole course of events, Lakhan Singh also fired over the police party therefore, when B.P. Dwivedi (PW-16) was cross- examined about this aspect, he explained that he does not know about the noting made and he has no information about the person who has noted this message therefore, the recordings placed by the appellants Rajesh and Karu @ Kalicharan to prove their innocence are not a material contradiction to bring home the theory that Lakhan Singh had in fact killed the deceased Sanjeev Bhadoriya and prosecution has falsely implicated the appellants. The Forensic Science Laboratory 9 CRA. No.826/2005 report Ex.P-19 has established the seized weapon was in working condition and in both the barrels of the gun empty cartridges were found to be fastened.
15. Another anxiety of learned counsel for the appellants that all the prosecution witnesses are interested witnesses which does not hold good because it is well settled in law that testimonies of the close-relatives or interested witnesses can be taken into account but with close scrutiny of their evidence. Here witnesses are either the police personnel or the witnesses of the same village. They cannot be termed as interested witnesses in any manner. The nature and place of incident indicate that the prosecution witnesses of the same village could have seen the incident and same is the position with the police personnel, who raided the village to nab Lakhan Singh. All the prosecution witnesses made the statements in unison without any deviation and contradiction vis a vis each others' testimony therefore, their testimonies cannot be doubted.
16. The appellants also examined five witnesses (DW-1 to DW-5) in their defence and tried to establish the theory of alibi in respect of accused Harnam, Raghuraj @ Munna, Udayveer and Rajesh. DW-4 and DW-5 tried to establish the innocence of the appellants by stating that because of rumour of dacoity, the incident took place and death of head constable Sanjeev Bhadoriya was ensued. They are neibhourer of the appellants and their houses are just adjacent to the houses of the appellants therefore, they tried to establish the innocence of the appellants. The said witnesses have not supported the case of the appellants in their evidence to the logical ends and their testimonies could not be termed as completely tutored, because they themselves had closed the door at the time of incident and therefore, they were not in a position to say that appellant No.2- Karu @ Kalicharan had not fired over deceased Sanjeev 10 CRA. No.826/2005 Bhadoriya and somebody else fired over deceased Sanjeev Bhadoriya. Although they accepted the fact of gun firing. They also accepted that the dead body of Sanjeev Bhadoriya was found in front of the house of appellant No.2-Karu @ Kalicharan. They also accepted that police visited the village as well as the place of occurrence. Their admission prove the occurrence of incident but they were not eye witnesses. Therefore, their account of incident cannot be taken into consideration as ocular evidence and does not support the case of the defence.
17. From the cumulative analysis, it is established by the prosecution that appellant No.2-Karu @ Kalicharan caused gun shot injury to deceased Sanjeev Bhadoriya due to which he died on the spot and therefore, he is rightly found guilty of the offence under Section 302 of IPC and convicted thereunder. He also put hindrances and obstructions in the course of public duties of the police party by hiding Lakhan Singh in his house wherefrom, along with appellant No.2-Karu @ Kalicharan, Lakhan Singh also fired some bullets over the police party therefore, he is rightly convicted and sentenced for the offence under Section 353 of IPC.
18. Now the case comes for our consideration in respect of appellant No.1-Rajesh who is convicted for the offence under Section 302/34 of IPC alongwith Section 353/34 of IPC. All the witnesses as referred herein above supported the prosecution case in a manner where main allegations against appellant No.1-Rajesh is of exhortation and hurling abusive language over the police party. The prosecution witnesses namely Stayendra Singh (PW-10) and B.P. Dwivedi (PW-16) have stated in their evidence that he exhorted and asked appellant No.2-Karu @ Kalicharan to fire shots but their said statements are not supported by other witnesses and no direct act and involvement 11 CRA. No.826/2005 of appellant No.1-Rajesh in order to fasten the criminal liability of Section 302/34 of IPC upon him is discernible.
19. Right from Mahbub Sah Vs. Emperor, AIR (32) 1945 Privy Council 118, the Privy Council has enunciated the concept and meaning of "Common Intention" till today meandering through Mohan Singh and another Vs. State of Punjab, AIR 1963 SC 174, Sheoram Singh and another Vs. State of U.P., AIR 1972 SC 2555 and in the case of Girjashankar Vs. State of U.P., AIR 2004 SC 1808, it is held that common intention within the meaning of Section 34 of IPC implies a prearranged plan. Prior meeting of mind or pre- concerted efforts are required for implication of Section 34 of IPC. Common intention may develop at spot but it must precede the offence. Since no appeal has been preferred by the State/ Prosecution against acquittal of co-accused persons as well as against the acquittal of appellants along with other accused persons from the clutches of Section 34 of IPC, finding recorded by the trial Court attained finality. The law in respect of Section 34 of IPC is well settled that to apply Section 34 of IPC, (common intention) apart from the fact that there should be two or more accused persons, two factors must be established, common intention and participation of the accused in the commission of offence. Here in the present case, neither the common intention has been proved by the prosecution nor participation of the appellant No.1-Rajesh in commission of offence has been proved. Burden lies on the prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherance of common intention at a prior concert (See: (2011) 9 SCC 479 Mrinal Das v. State of Tripura). In the instant case, the prosecution could not prove the prior concert or furtherance of common intention for committing such offence. The Hon'ble 12 CRA. No.826/2005 apex Court in the case of Jai Bhagwan and Others Vs. State of Haryana, AIR 1999 SC 1083 has mandated that if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked.
20. In the present case, where the very participation of the accused (coupled with common intention) has not been proved (regarding appellant No.1-Rajesh), then both the ingredients of Section 34 of IPC are miserably missing in the present case. Implication of Section 34 requires a pre-arranged plan and per- supposes prior concert therefore, there must be prior meeting of mind. It can also be developed at the spur of moment but there must be pre-arrangement or premeditated concert (See: Ramashish Yadav Vs. State of Bihar, 1999 (8)SCC 555).
21. On the anvil of said legal positions, if the role of appellant No.1-Rajesh is seen then it appears that no prior concert of mind exists in respect of appellant No.1-Rajesh to say that he had shared common intention to murder Sanjeev Bhadoriya. Common intention must exists for applying doctrine of vicarious liability as well as participation of crime alongwith the presence of common intention {See: Nagaraja Vs. State of Karnataka (supra)}. Appellant No.1-Rajesh exhorted against the police party and did not open the door on the asking of the police party and thus rendered himself to be guilty of offence under Section 353 of IPC but his role was confined to exhortation and using abusive language and not opening the door to the police party but in the given fact-situation of the case he might not have been in a position to open the gate because Lakhan Singh and Karu @ Kalicharan were wielding fire arms with them and therefore, his limitations are understandable.
22. From the judgment of the trial Court it appears that appellant No.1-Rajesh remained in custody from 25/06/2002 till 24/12/2002 which is almost a period of six months imprisonment 13 CRA. No.826/2005 whereas maximum jail sentence prescribed in Section 353/34 of IPC is 2 years. In the fact situation of the case, appellant No.1- Rajesh is sentenced for the period he had already served and that he is acquitted for the offence punishable under Section 302/34 of IPC. As he is on bail, his bail bonds shall stand discharged.
23. Appellant No.2-Karu @ Kalicharan is in jail. He has to suffer jail sentence as per the impugned judgment of conviction and order of sentence.
24. Resultantly, the appeal stands allowed in parts.
(Rajendra Mahajan) (Anand Pathak)
Judge Judge
vc 22-02-2018 22-02-2018
VARSHA CHATURVEDI
2018.02.23 17:56:27
+05'30'