Madhya Pradesh High Court
Kaushal @ Daduan vs The State Of Madhya Pradesh on 4 April, 2019
Bench: Huluvadi G. Ramesh, B. K. Shrivastava
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HIGH COURT OF MADHYA PRADESH: JABALPUR
(Division Bench)
CRIMINAL APPEAL No.1351/2007
Sandeep @ Chela and another .........Appellants/accused
Versus
The State of Madhya Pradesh ..........Respondent
CRIMINAL APPEAL No.1530/2007
Kaushal @ Daduan .........Appellant/accused
Versus
State of M.P. ..........Respondent
CRIMINAL REVISION No.1342/2007
Smt. Durga Tiwari .........Applicant/
complainant
Versus
State of M.P. and others ..........Respondents
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CORAM:
Hon'ble Shri Justice Huluvadi G. Ramesh
Hon'ble Shri Justice B. K. Shrivastava
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APPEARANCE:
Shri Sharad Verma, Advocate for the appellants in CRA
No.1351/2007 and CRA No.1530/2007.
Smt. Seema Pandey, Advocate appears as amicus curiae in
Criminal Revision No.1342/2007.
Shri Shamim Ahmad Khan, Government Advocate for the
respondent/State.
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Whether Approved for Reporting: Yes/No
J U D G M E N T (Oral)
(04.04.2019)
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1. These criminal appeals and criminal revision arise out of the same judgment dated 27.06.2007, therefore, they are being decided by this common judgment.
2. Criminal Appeal No.1351/2007 has been filed by appellants/accused Sandeep @ Chela and Sahil @ Sheru; Criminal Appeal No.1530/2007 has been filed by appellant/accused Kaushal @ Daduan; and Criminal Revision No.1342/2007 has been filed by applicant/complainant Smt. Durga Tiwari. All these matters arise out of the same impugned judgment dated 27.06.2007 passed by Additional Judge to the Court of First Additional Sessions Judge, Katni in S.T. No.205/2006, whereby the appellant Sandeep @ Chela has been convicted under Section 307 of I.P.C. and Section 25(1b)(a) and Section 27 of the Arms and has been sentenced to R.I. for 7 years and fine of Rs.100/- and R.I. for 3 years and fine of Rs.100/- with default stipulation. The appellant Sahil @ Sheru has been convicted under Sections 307, 302 r/w section 111 of I.P.C. and Section 25(1b)(a) and section 27 of Arms Act and sentenced to R.I. for 7 years and fine of Rs.100/-; Imprisonment for Life and fine of Rs.100/- and R.I. for 3 years and fine of Rs.100/- with default stipulation respectively. Appellant Kaushal @ Daduan has been convicted under Section 302 read with Section 111 of I.P.C. and sentenced to Life Imprisonment and fine of Rs.100/- with default stipulation. By the same judgment accused Suraj Kureel, Manoj @ Mannu and Babar Khan have been acquitted by the trial Court against which applicant/complainant has filed the Criminal Revision No.1342/2007.
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3. The appeal against appellant/accused Sandeep @ Chela has been abated vide order dated 12.12.2012 as he died on 13.06.2011.
4. The prosecution case in short is that on 30.08.2006 at about quarter to 8 p.m. when complainant Daut Raja Isai along with Aditya Tiwari s/o Mukesh Tiwari, a child aged about 3 years in his lap going towards Soni Hotel and as soon as he reached at the breaker of Nala, accused Sahil Yadav, Sandeep Chela, Daduan @ Kaushal, Babar, Suraj Choudhary, Mannu Bharti came there from the station road and accused Daduan @ Kaushal told that he is the Isai shoot him. On this Sahil Yadav fired the gunshot which did not hit to Daut Raja Isai but the boy started crying and he thought that the gunshot hit to the child Aditya Tiwari who was in his lap and he clinged the boy with his chest. Thereafter another gunshot was fired by accused Sandeep Chela which he does not know from where it passed away. Accused Daduan said that "Isai has died run away". On this, the accused persons ran away. He saw that the child sustained gunshot injury in the centre of his chest. He took the child in the house of Sunil Tiwari and told Baby Bhabhi about the incident and handed over the child. Thereafter immediately taken the child to Dr. Praveen Vaishya and who said to take the child to Govt. Hospital. They took the child to Govt. Hospital where he was examined by Dr. Sharma and declared the child dead. Daut Raja informed the police and Marg No.52/06 was recorded under Section 174 of Cr.P.C. vide Ex.P-12 and Ex.P-13 F.I.R. was recorded. During investigation, report Ex.P-25 regarding taking of Aditya Tiwari in dead condition received from the District Hospital Katni. Postmortem of
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dead body was conducted vide postmortem report Ex.P-16. On the basis of memorandum of Sandeep @ Chela countrymade pistol of iron and from the memorandum of accused Sahil countrymade revolver along with cartridge were seized. Blood stained clothes, skin of chest of deceased Aditya were seized. Spot map was prepared. The seized articles were sent to F.S.L. Sagar vide Ex.P-13. The accused persons were arrested. After completing the investigation chargesheet was filed before the Chief Judicial Magistrate, Katni who committed the case to the Sessions Court for trial.
5. The trial Court framed the charges under Sections 147, 148, 307 read with sections 149, 302 read with section 149, in alternative 302 read with section 111 of I.P.C. against all the accused persons. The trial Court also framed the charges under sections 25(1b)(a), 27 of Arms Act against the accused Sandeep and Sahil Yadav. The prosecution examined as many as 13 witnesses whereas the defence examined one witness. The statements of accused under section 313 Cr.P.C. were recorded. The accused persons claimed that they are innocent and have been falsely implicated.
6. Learned counsel for the appellants submits that 2-3 accused have been convicted for the offence under section 302 of I.P.C and others have been acquitted. Learned counsel for the appellants further submits that there were 5-6 accused persons but it is only the Sandeep who shot fire and he is no more and appeal against him stands abated. So far as accused Sahil is concerned, it is submitted that at the instance of someone in the group, who uttered to fire he shot PW-3 Daut @ Raja
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which hit the child Aditya Tiwari who was in his lap. So far as accused Kaushal @ Daduan is concerned, he accompanied the other main assailants and it is submitted that except uttering some words, there is no clear case of attempt to commit murder nor abetment. Only due to anger, he uttered the word to shoot PW-3 Kaushal @ Daduan, then Sahil Yadav assaulted PW-3 Daut @ Raja. Neither it was premeditated nor it was intended to commit murder. Therefore, the offence does not fall under Section 302 of I.P.C.
7. Learned amicus curiae appearing for the complainant submits that trial Court having found that there was unlawful assembly the acquittal of other three accused is totally unwarranted. There was common intention of all the accused and with that intention they formed the unlawful assembly with intention to commit murder and as such this is a clear cut case of murder and the acquitted accused persons be held guilty of the offence under Section 302 of I.P.C.
8. Learned counsel for the State submitted that with the previous animosity all the accused formed the unlawful assembly and having planned to commit the murder of PW-3 Daut Raja, accused Sandeep and Sahil fired on PW-3 Daut Raja. The shot fired by Sahil hit the boy Aditya Tiwari who was in the lap of PW-3 Daut Raja and the another gunshot fired by Sandeep passed over the head of PW-3 Daut Raja. Thus it is a case of conviction of all the accused persons who with the common intention formed the unlawful assembly to commit the offence. The other accused persons who have been acquitted ought not
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to have been acquitted. They committed the murder of child while attempting the murder of PW-3 Daut Raja.
9. Having heard learned counsel for the parties, the point that arises for consideration before this Court is that whether the accused have committed the offence of murder of Aditya Tiwari and attempt to commit the murder of PW-3 Daut Raja with the previous animosity (since he was a witness in some other case) and whether child Aditya Tiwari died homicidal death and whether the prosecution proved the case beyond reasonable doubt against all the accused persons.
10. Daut Raja (PW-3) deposed that he knows accused persons Babar, Sahil, Mannu Bharti, Daduan, Suraj Choudhary and Sandeep Chela. The incident is of 30.08.2006 at about 7:45 p.m. He deposed that he was living in the house of Sunil Tiwari from 7-8 months and was working in his house. He deposed that he was a witness in the case of Intan Chouhan, therefore, accused persons used to trouble him, therefore, he started living in the house of Sunil Tiwari. On the date of incident at about 7:45 p.m. when he was taking the child Aditya Tiwari s/o Mukesh Tiwari aged about 3 years in his lap towards Soni Hotel and reached on the breaker of Nala, the accused persons came there from station road, accused Daduan told that he is the Isai and on this Sahil Yadav fired the gunshot which did not hit him but the boy started crying so he thought that it hit to the child. Thereafter Sandeep Chela also fired gunshot which did not hit him. The accused persons told run away Isai has died and thereafter accused persons ran away. He was taking the boy by clinging him to his chest. He saw that body sustained
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gunshot injury on the chest. He taken the child towards the house of Sunil Tiwari where Baby Bhabhi was standing to whom he narrated the incident. Thereafter Baby Bhabhi and this witness went to the Dr. Vaishya who told him to take the child to Govt. Hospital immediately where Dr. Verma examined him and told that the child has died. He went to Hospital Chowki from where he was sent to police station where marg intimation Ex.P-12 and F.I.R. Ex.P-13 reports were written. In cross examination, he has deposed that he used to feel insecured from Intan and was living in the house of Sunil Tiwari and used to do his household works. He has no enmity with the accused persons. Only he has enmity with Intan as he is a witness in a case of Ganja. He has clearly denied the suggestion that the gunshot was fired by his own weapon and also denied the suggestion that at the instance of owner he has falsely implicated the accused persons. In para 20 he has deposed that Intan has not stopped him from giving evidence against him. He did not met Intan before the incident. Intan was in jail on the date of incident.
11. Durga Tiwari (PW-4) deposed that she did not witness the incident. She further deposed that PW-3 Daut Raja came there by taking the child in his lap and told that six persons have assaulted including accused persons. She deposed that the child who was fired by gunshot was the son of her son Mukesh who was 3 years and 3 months old. Thereafter PW-3 Daut Raja gave the child to Vandana and both went to Dr. Vaishya and who referred the child to Government Hospital. This witness further deposed that she became unconscious. It
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is also deposed by her that Daut Raja was to give evidence in the case of Ganja of Intan, therefore, they came to kill him.
12. Dr. Yashwant Verma (PW-11) was posted at Hospital, Katni has deposed that Aditya Tiwari was brought by constable Ram Singh. He deposed that the boy was dead. He gave the report Ex.P-25. He deposed in cross examination that the name of boy was written as Ashish.
13. Khusveer Singh (PW-13) is a witness of Panchnama Ex.P-17 and panchnama of dead body Ex.P-18. In cross examination, this witness has deposed that no notice was given to him and Ex.P-17 and Ex.P-18 was not written before him. Prabhat Soni (PW-7) is a witness of seizure.
14. Dr. S.K. Sharma (PW-5) was posted at District Hospital, Katni and conducted the postmortem of the deceased and as per his opinion the cause of death was hemorrhage shock caused by injury to lung and liver. The nature of death was gunshot injury caused by firearm. The report is Ex.P-16.
15. Prakash (PW-1) who is a witness of memorandum deposed that he knows accused Sandeep, Sahil, Babar, Kaushal and Suraj and is also a witness of seizure and arrest memo. This witness has been turned hostile by the prosecution.
16. K.P. Gautam (PW-8) was posted as Sub Inspector at police Station Kotwali, Katni and has written the marg intimation Ex.P-11 and F.I.R. Ex.P-12 on the information of Daut Raja (PW-3). R.K. Dubey
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(PW-6) made the seizure memo and arrest panchnama Ex.P-8 and Ex.P-9. This witness has denied the suggestion that accused Sahil has not given any memorandum and no weapon was seized from him.
17. Babulal Choudhary (DW-1) has deposed that he knows accused Sahil who runs a tea stall. He deposed that he is an owner of a Pan shop. His shop is in front of the shop of Sahil at Mangal Nagar. The distance between his shop and shop of accused Sahil is 5-6 feet. He deposed that on the date of incident Sahil was in his shop from 6 to 10 p.m. He deposed that accused Sahil has been falsely implicated.
18. Daut Raja (PW-3) who is a prime witness against whom attempt to murder has been committed but ultimately it is accused Sandeep as well as Sahil attempted at PW-3 Daut Raja having understood the fact that he was a prime witness in some other case of Ganja and to finish him off an attempt has been made by Sandeep though the shot fired by him did not hit on him and passed just over his head. However, the shot fired by accused Sahil hit Aditya Tiwari the child who was in the lap of PW-3 Daut Raja. Though there are certain minor contradictions and omissions in the statement of prosecution witnesses but they do not affect the prosecution case in any manner whatsoever.
19. From the medical evidence on record regarding the death of deceased child of three years it is found that due to gunshot injury he died as such we are of the opinion that deceased Aditya Tiwari died homicidal death. So far as offence committed by accused Sandeep is concerned, the appeal against him has been abated as he expired. So far
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as accused Sahil is concerned, he fired gunshot on the deceased Aditya and also it is clear on record that the accused Sahil fired gunshot on the expression of Kaushal is in the context to shoot PW-3 Daut Raja. So far as the expression of Kaushal to shoot PW-3 Daut Raja is concerned, it is clear cut case of abetment and the learned trial Court convicted appellant Sahil Yadav for Life Imprisonment with the add of Section 111 of IPC. So far as appellant Kaushal is concerned, since he uttered an expression on the basis of which Sahil fired the gunshot on PW-3 Daut Raja which caused the death of child Aditya instead of PW-3 Daut Raja. The act committed in furtherance of the abetment of Kaushal, accused Sahil shot fire which caused the death of the child which is nothing but an act of commission of a murder. Though the murder of PW-3 Daut Raja has not taken place as the gunshot fired could not hit him and passed just over his head, however with regard to other three accused who have been acquitted namely Suraj Kureel, Manoj @ Mannu and Babar Khan though they were members of unlawful assembly but there is no specific act attributed against them regarding their involvement either in assaulting or specifically abetting other accused Sandeep, Sahil or Kaushal. In the circumstances, the trial Court has rightly acquitted the other three accused persons for the offence under Section 302 of I.P.C. So far as accused Sahil and Kaushal are concerned, they have committed the offence under Section 302 of I.P.C and also committed offence under Section 111 of I.P.C. The trial Court has convicted both the accused persons for the offence under Section 302 of I.P.C. The explanation of Section 111 of the Act
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provides that the act done was a probable consequence of the abetment and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment.
20. In pursuance of abetment of Kaushal, Sahil fired at PW-3 Daut Raja which hit on the deceased Aditya Tiwari, the child who was in the lap of PW-3 Daut Raja. Thus, ultimately, Kaushal is liable for punishment under Section 111 read with Section 302 of I.P.C. Thus, the prosecution has proved the case beyond reasonable doubt against the appellants. The deposition of DW-1 Babulal Choudhary also does not inspire any confidence and is of no help to the accused persons.
21. Learned counsel for the appellants relied upon a Division Bench judgment of this Court Bench at Gwalior in the case of Mohar Singh vs. State of M.P. in Criminal Appeal No.179/1995 decided on 09.04.2007 to contend that the offence does not fall under Section 302 of I.P.C. but it fall under Section 304 Part-I of I.P.C. Learned counsel for the appellants also relied upon the judgment of the Supreme Court in the case of Nammu v. State of M.P. reported in 1980 Supp SCC 23 to contend that dispute originating from a trivial exchange of abuse between two groups deceased though not the main target of attack, knifed to death, which his brother the main target sustained grievous injuries it has been held that the accused No.1 and 2 shared common intention of causing grievous hurt and not death and hence to be convicted under Section 326 read with Section 34 and also under Section 148 and other accused had common object to cause grievous hurt and hence to be convicted under Section 326 read with Section
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149 and also under Section 147 and sentenced reduced to the period already undergone.
22. So far as the present case is concerned, we are of the view that there is clear evidence of eyewitness PW-3 Daut Raja being prime witness to the incident and main target of accused persons, his evidence cannot be shaken and above judgments are of no avail to the accused.
23. In view of the aforesaid discussion, we affirm the judgment of the trial Court in convicting and sentencing accused Kaushal, Sahil and Sandeep. Since accused Sandeep expired during pendency of the appeal, the appeal against him stands abated. So far as acquittal of other three accused persons is concerned, except their presence, there is no specific act or specific overt act so as to participate in the commission of the offence. In the evidence also, it is nowhere mentioned the names of these acquitted persons as such the trial court has rightly acquitted Suraj Kureel, Manoj @ Mannu and Babar Khan.
24. We do not find any error committed in the conclusion arrived at by the Sessions Judge in convicting and sentencing the accused Sandeep, Sahil and Kaushal and in acquitting the accused persons Suraj Kureel, Manoj @ Mannu and Babar Khan. The criminal appeals filed by the accused Sahil @ Sheru and Kaushal @ Daduan and criminal revision filed by applicant Smt. Durga Tiwari are hereby dismissed. The appellant Sahil Yadav is in jail. It appears that he has almost suffered 12½ years of sentence. He be given benefit of set off under the provisions of Section 428 Cr.P.C. The appellant Kaushal @ Daduan is on bail. His bail bonds are cancelled and he is directed to surrender
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before the trial Court within one month from the date of this judgment for serving out the remaining part of the sentence. If he fails to do so, the trial Court to take appropriate steps to take him into custody and he be sent to jail for serving out the remaining part of the sentence.
25. We appreciate the efforts made by Smt. Seema Pandey, learned amicus curiae in assisting the Court. The High Court Legal Services Committee is directed to disburse fee of Rs.4000/- to the learned amicus curiae.
(Huluvadi G. Ramesh) (B.K. Shrivastava)
Judge Judge
psm
Digitally signed by
PREM SHANKAR
MISHRA
Date: 2019.04.05
17:07:01 +05'30'