Madhya Pradesh High Court
Afzal Ali vs The State Of Madhya Pradesh on 20 November, 2023
Author: Vivek Agarwal
Bench: Vivek Agarwal, Vishal Dhagat
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE VISHAL DHAGAT
CRIMINAL APPEAL No. 2350 of 2013
BETWEEN:-
1. AFZAL ALI S/O RIYAZ ALI, AGED ABOUT 22 YEARS,
R/O VILLAGE TOOMDA, POLICE STATION
KHAJURI SADAK, DISTRICT BHOPAL (MADHYA
PRADESH)
2. JALEEL ALI S/O RIYAZ ALI, AGED ABOUT 39
YEARS, R/O VILLAGE TOOMDA, POLICE STATION
KHAJURI SADAK, DISTRICT BHOPAL (MADHYA
PRADESH)
3. TAHIR ALI @ BABLU S/O RIYAZ ALI , AGED
ABOUT 30 YEARS, R/O VILLAGE TOOMDA, POLICE
STATION KHAJURI SADAK, DISTRICT BHOPAL
(MADHYA PRADESH)
4. IQBAL ALI S/O RIYAZ ALI, AGED ABOUT 20 YEARS,
R/O VILLAGE TOOMDA, POLICE STATION
KHAJURI SADAK, DISTRICT BHOPAL (MADHYA
PRADESH)
5. RAEES ALI S/O RIYAZ ALI, AGED ABOUT 45 YEARS
R/O VILLAGE TOOMDA, POLICE STATION
KHAJURI SADAK, DISTRICT BHOPAL (MADHYA
PRADESH)
6. BHURA SHAH S/O PEERU SHAH, AGED ABOUT 24
YEAR S , R/O VILLAGE ARNAYAKALA, POLICE
STATION AWANTIPUR, BADODIYA, DISTRICT
SHAJAPUR (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI PRASANNA NAMDEO - ADVOCATE AND SHRI ABHISHEK
TIWARI - ADVOCATE AS AMICUS CURIAE)
AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
Signature Not Verified
Signed by: PUSHPENDRA
PATEL
Signing time: 21-11-2023
19:44:42
2
STATION KHAJURI SADAK, DISTRICT BHOPAL
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI AMIT SHARMA - GOVERNMENT ADVOCATE)
Reserved on - 20.10.2023
Delivered on - 20.11.2023
-------------------------------------------------------------------------------------
This criminal appeal having been heard and reserved for orders,
coming on for pronouncement this day, Hon'ble Shri Justice Vivek Agrawal
passed the following:
ORDER
T his criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 is filed by six of the convicts, namely, Afzal Ali S/o Riyaz Ali, Jaleel Ali S/o Riyaz Ali, Tahir Ali @ Bablu S/o Riyaz Ali, Iqbal Ali S/o Riyaz Ali, Raees Ali S/o Riyaz Ali and Bhura Shah S/o Peeru Shah being aggrieved of the judgment dated 05.09.2013 passed by the learned 14th Additional Sessions Judge, Bhopal in Sessions case No.692/2012, whereby after conducting trial against seven persons, one has been acquitted and six have been convicted under Section 148, 302/149 of IPC and each sentenced to 2 years rigorous imprisonment and Imprisonment for Life with fine of Rs.5,000/-, respectively. Besides this, appellant No.2 Jaleel Ali and appellant No.6 Bhura Shah have been convicted under Section 25(1-B)B of Arms Act and each sentenced to rigorous imprisonment for 1 year and fine of Rs.1,000 with default stipulation.
2. Prosecution story, in short, is that incident took place on 15.04.2012, at about 10.15 a.m. for which complainant Rajendra Singh Mewada (PW-1) recorded a Dehati Nalsi at 2.30 p.m. before SHO, Police Station Khajuri Sadak, Shri Ajay Kumar Nair (PW-14), that on 24.04.2012 there was a marriage in the Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 3 family. Due to the occasion of marriage in the family which was to be solemnized for Kedar Mewada, he himself i.e. Rajendra Singh Mewada and Mukesh Mewada, elder brother of Kedar, had gone to collect jewellery from one Gopal Soni of Village Toomda at about 10 a.m.
3. After collecting their jewellery which included gold chain, Jumka, Silver Payal, they were returning to their home on Pulsar motorcycle on which Mukesh was a pillion rider. As soon as they reached the house of Nannu Lal Patwari, situated outside the village then on left side blue colour Sumo of Afzal was parked. Afzal, his brothers Jaleel, Bablu, Iqbal and Raees were standing with Danda, rod and swords. 3-4 other persons belonging to the family of Afzal were also standing on the other side of the road .
4. Afzal had hit a Danda from front which had hit handle of the motorcycle, as a result of which, he had fallen down from the motorcycle when Bablu who was wielding a rod, exhorted to kill them. He had pushed Bablu and Jaleel who were wielding swords and after picking his motorcycle, ran towards the village. He saw Mukesh being beaten, therefore, at some distance he stopped his motorcycle and called Mahesh and other villagers. When he reached Toomda village then he was informed by people that Mukesh was dragged by Afzal and his brothers by tying him with the Sumo vehicle towards Fanda road.
5. Accused were followed by Gopal Soni, Chandan Mehra, Radharaman, etc. when accused persons had cut the rope and ran away. Mukesh was taken to Chirayu hospital by Radharaman, Arjun Singh and other villagers. There were several injuries on the body of Mukesh.
6. It has also come on record that Mukesh had old enmity with Afzal and his brothers because a year ago, Mukesh had facilitated transaction of land of Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 4 Shaukat Miyan which was in possession of Afzal and his brothers in favour of one Raja Seth of Bairagarh. Thus, it has come on record that it is a case of old enmity. It has also come on record that 4-5 days prior to the incident, a dispute had occurred between Mukesh and Bablu. Thus, it is alleged that the motive was to kill Mukesh due to old enmity.
7. Shri Prasanna Namdeo along with Shri Abhishek Tiwari, learned counsels appearing for the appellants as amicus curiae submit that it is a case where conviction has been recorded on surmises and conjectures, without appreciating the evidence and without testing creditworthiness of so-called eye witnesses. It is pointed out that nine persons were named in the FIR. Two of them were juvenile, they were tried separately and have been acquitted. Seven were tried by the learned Sessions Court, out of which learned Sessions Court acquitted Riyaz Ali.
8. It is submitted that no Test Identification Parade was carried out. Reading from the evidence of Rajendra Singh Mewada (PW-1), it is submitted that he clearly deposed in his examination-in-chief that he does not know Bhura Shah and he had not seen Bhura Shah at the place of incident on 15.04.2012. Thus, it is submitted that conviction of Bhura Shah is based on surmises and conjectures, inasmuch as, in Dehati Nalsi, Ex.P-1, Afzal and his brothers Jaleel, Bablu, Iqbal and Raees were named. There is no mention of name of either Riyaz Ali or Bhura Shah.
9. Similarly, in the FIR, there is no mention of name of Bhura Shah as an accused. It is pointed out that when Rajendra Singh Mewada (PW-1) has categorically deposed that Bhura Shah was not present at the place of incident and he being the best eye-witness, conviction of Bhura Shah with the aid of Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 5 Section 149 of IPC, is not made out merely on the basis of one sword alleged to be recovered from his possession.
10. Reading from para 6 of cross-examination of this witness, it is pointed out that there is a contradiction in the evidence of of Rajendra Singh Mewada (PW-1), inasmuch as, in the Dehati Nalsi, Ex.P-1, it is mentioned that motorcycle had slipped and they had fallen down but in his cross-examination he has mentioned that his motorcycle had wavered and in para 8, he has admitted that Mukesh got down from the motorcycle. It is submitted that this witness Rajendra Singh Mewada (PW-1) has admitted that in Dehati Nalsi, Ex.P-1, he had not said that they had fallen down from the motorcycle. Thus, there is a contradiction in Ex.P-1 and the deposition of this witness. It is further submitted that this witness is in fact not an eye witness, inasmuch as, in para 9 he admitted that about 200 feet ahead, he had stopped his motorcycle and had seen that accused were beating Mukesh.
11. Rajendra Singh Mewada (PW-1) admits in para 10 of his cross- examination that though he had seen deceased Mukesh being beaten but had not seen Mukesh being tied with Sumo vehicle and being dragged towards Fanda. In para 11 of his cross-examination, he admits that he had not seen Radharaman parking his Safari vehicle but later on stated that he had seen Radharaman taking Mukesh to the hospital in his Safari Vehicle. He further deposed that he had narrated as per the evidence of others that Radharaman had followed Sumo vehicle in his Safari vehicle.
12. In para 12 of his cross-examination, this witness admits that Mahesh had come to the scene of crime along with 8 to 10 persons but when Mahesh had come to the scene of crime, he was not present. He further deposed that after making a phone call he had reached village Pataniya. He further admits that Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 6 there is only single way to reach village Pataniya from Toomda village. He had not met Mahesh on the way. His sister-in-law had informed that Mahesh had already left his home for Toomda village then this witness Rajendra Singh Mewada (PW-1) had come to Toomda village where he had met Mahesh. 1 3 . Shri Prasanna Namdeo points out from the Spot map (Ex.P-8) that from Toomda, where the incident took place, there is a single road to Pataniya. There was no occasion for Rajendra Singh Mewada to visit Pataniya after he had already made a call to Mahesh. Therefore, this witness is not a creditworthy witness.
14. It is further pointed out that even presence of Jaleel at the place of incident, is doubtful, inasmuch as, Arjun Mewada (PW-2) is also not a creditworthy witness. Drawing attention of this Court to the Spot Map, Ex.P-7, it is submitted that place of incident is marked as 'A' in front of house of Nannu Lal Patwari which is apparently situated on a road going towards Pataniya. It is submitted that according to Gopal Soni (PW-7), his shop is at point 'E' which is on an inner road on the main road moving from Fanda to Doraha behind Allahabad bank and Arjun Mewada (PW-2) had met Jaleel Bhai at Masjid mod, which is near 'B' and the distance between 'A' and 'B' is about 350 meters approx., therefore, it is pointed out that when Arjun Mewada (PW-2) had met Jaleel at Masjid Mod and he had asked Jaleel to counsel his brothers but Jaleel had gone towards Doraha, as is mentioned in para 3 of examination-in-chief of Arjun Mewada (PW-2), whereas accused according to the prosecution story after incident taking place in front of the house of Nannu Lal Patwari, had dragged deceased Mukesh towards Fanda which is in the opposite direction to Doraha. Even presence of Jaleel at the place of incident is not proved and, Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 7 therefore, his conviction with the aid of Section 149 of IPC is contrary to the evidence of Arjun Mewada (PW-2), who claims himself to be an eye-witness.
15. It is pointed out that this witness Arjun Mewada (PW-2) has though deposed that accused had dragged Mukesh from Toomda to Fanda road for a distance about 1 km and Radharaman (PW-10) was available at a distance of 1 km near temple, which is shown as 'D' in the spot map and then he had followed the sumo and, thereafter, taken Mukesh to Chirayu hospital. He further deposed that this witness Arjun Mewada (PW-2) too had reached the hospital just behind the Safari and had seen Mukesh, is not creditable. It is further submitted that Rajendra Singh Mewada (PW-1) is related to Arjun Mewada (PW-2).
16. It is submitted that as per Rajendra Singh Mewada (PW-1), Afzal was wielding a Lathi, whereas according to Arjun Mewada (PW-2), Afzal was wielding a Farsa. In cross-examination, he could not explain that why it is not mentioned in the Ex.D-2 that Afzal was wielding a Farsa. In Ex.D-2, this witness had said that Sumo vehicle was standing. He had seen Jaleel, Iqbal, Raees, Afzal, Bablu and others armed with Danda, Rod and Swords. Thus, to this extent that he says that Afzal was wielding a Farsa is contradictory to Ex.D-2. Even evidence of this witness is contradictory, inasmuch as, in his statements under Section 161, Cr.P.C. this witness has admitted that he had seen Mukesh and Rajendra being beaten from the side mirror of his vehicle. He has deposed that he had seen Afzal, Bablu, Raees, Iqbal beating them and then he had seen Bhura and Jaleel also. However, in his examination-in-chief though he has taken name of Bhura but when Bhura was not present at the place of incident as per Rajendra Singh Mewada (PW-1) who is the author of Dehati Nalsi, Ex.D-1 and there is no mention of name of Bhura in the Dehati Nalsi, his implication is an Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 8 after thought.
17. It is pointed out that this witness Arjun Mewada (PW-2) is not a creditworthy witness. Referring to the injury report, Ex.P-13, it is pointed out that there is no injury on the body of Mukesh which could have been caused by a Farsa on his head as is deposed by Arjun Mewada (PW-2). There is no such narration in the statements under Section 161, Cr.P.C. given to the police as is available on record as Ex.D-2. This witness has admitted in para 9, of his cross- examination that he had not seen accused tying Mukesh with a rope. In para 10, he admitted that he had not informed the police that Mukesh was dragged. In para 11, this witness admitted that he does not remember that whether he had informed the police in his statement, Ex.D-2 that Safari vehicle had reached near a Puncture shop where Mukesh was lying and he was taken in the said Safari vehicle to the hospital. This is another contradiction in the evidence of Arjun Mewada (PW-2).
18. It is further pointed out in para 12, this witness admitted that when he had reached the hospital on a motorcycle of Kailash, police had arrived in the hospital and he had not informed the police that he had seen the incident. He gave his statement to the police after 7-8 days of the incident. He admits that he had not gone to the police station. It is further pointed out that there is another contradiction in his testimony that on the one hand he says that he was not keeping good health, therefore, he remained in Pataniya for 7-8 days, whereas on the other hand he deposed that he could not give statements to the police because he was out of station. Thus, it is pointed out that witness Arjun Mewada (PW-2) is not a creditable witness.
19. Arjun Singh S/o Kamal Singh (PW-3) deposed that on the fateful day Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 9 when he was sitting on his shop near Government school, he had seen a green colour Tata Sumo being driven by Afzal and occupied by Bablu, Iqbal, Raees and two children aged about 12-13 years. He had seen that vehicle was stocked with swords and Lathis and Mukesh was tied with a 15 feet long rope. Mukesh was crying for help and then he followed the Sumo vehicle on his motorcycle.
20. After three kilometers Tata Sumo had stopped then Jaleel had cut the rope with the help of a sword and then Tata Sumo left the place when he, Radharaman and Prem Narayan had lifted Mukesh. Mukesh was badly injured. He was lifted and kept in the vehicle of Radharaman and was taken to Chirayu hospital. On the way, Mukesh had narrated that Iqbal, Afzal, Bablu, Raees, Bhura and two others had hit him with a sword.
21. In cross-examination, this witness admitted that Rajendra Singh Mewada is his elder brother and Mukesh is son of his elder uncle. He had not given any statement to the police nor lodged any report. He admitted his signatures on Ex.D-3 on 'A' to 'A' part.
22. Reading from the statements of Arjun Singh (PW-3), it is pointed out that this witness in his examination-in-chief has clearly mentioned that Sumo vehicle was occupied by Afzal who was on the driving seat, Bablu @ Tahir, Iqbal, Raees and two children. He has not taken names of Jaleel Ali and Bhura Shah. Later on, he has improvised his statement that Jaleel had cut the rope with which Mukesh was tied and Mukesh had taken name of Bhura also. This is contradictory and cannot be relied upon.
23. This witness in para 8 of this cross-examination admitted that since morning till 11-12 night, he had not informed anybody that Mukesh was murdered. He admitted that police had taken his statements on the next day, whereas fact of the matter is that his statement, Ex.D-3 was recorded on Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 10 16.04.2012, whereas incident took place on 15.04.2012. It is further pointed out that in para 8 of his cross-examination, he admitted that he had not seen the accused beating Mukesh with sword or lathi. He could not give explanation that if he had informed police that he and Radharaman had lifted Mukesh and taken him in Safari vehicle then why this fact is not mentioned in his police statements. He further admitted that he had neither noted the number of Safari vehicle nor any blood stained article was recovered from the Safari vehicle.
24. Gajraj (PW-4) is also not a creditworthy witness. He narrated time of the incident as 9.45 a.m., whereas in the FIR time is mentioned as 10.15 hours. It is further pointed out that this witness had visited Toomda at 8.30 a.m. and while he was returning from Toomda to Pataniya, he was signalled by Arjun that some fight was going on. Arjun had left the place of the incident. When he reached the place of the incident then he had seen Mukesh being beaten with rods, dandas and swords. He alleged that Bhura and Jaleel were armed with swords. In cross-examination, this witness admitted that though at Chirayu hospital, he had met the police personnel but he never informed them that he had seen the incident or his statements be recorded. His excuse that he had not given statements because he was busy in his work, is not creditworthy.
25. Mahesh S/o Narayan Singh (PW-5) admits that he is not an eye- witness.
26. Achal Singh (PW-6) is also not a creditworthy witness, inasmuch as, in para 5 of his cross-examination, this witness admitted that he had not seen the incident taking place but later on had seen the spot.
27. Gopal Soni (PW-7) is the witness who had seen Mukesh being dragged. It is evident that he has shown the time of the incident as 10 a.m. It is Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 11 submitted that even this witness was not present because his conduct is unnatural. He has mentioned that he had made Mukesh sit in the Safari vehicle and had returned back to his shop. He had not called police personnel. Police had reached his shop at about 12. Police had not inquired any incident from him. He had himself narrated that to the police. He admits that he had seen only Afzal and Bablu @ Tahir inside the Sumo vehicle and had not seen anybody else.
28. Dr. C.S. Jain (PW-9) Forensic Specialist from Medico Legal Institute, Bhopal has given details of the injuries which as under:-
'''ko ij oL= ugh FksA nkfgus dku esa ihyh /kkrq dh ,d ckyk Fkh] ej.kksijkar dh vdMu iwj 'kjhj esa ekWtwn FkhA fuEu fyf[kr pksVsa 'ko ij ns[kh xbZ Fkh%& 1& nkfguh vkWa[k ds uhps 5 x 4 CM dh [kjksapA 2& nkfguh vkWa[k o dku ds e/; [kjksap 2.6 x 1.5 CM.
3& VksMh ij 3.8 x 3.2 CM dh [kjksapA
4& nkfguh Hkqtk ,oa vxz Hkqtk ij 21 x 8 CM dh [kjksapA
5& nkfgus vxwWBs ij 4 x 2 CM dh [kjksapA
6& Nkrh ij [kjksapA
7& ck;sa ,oa nk;s isV ds fupys Hkkxksa esa 3 x 1.5 CM dh [kjksapA
8& nksuksa ?kqVuksa ds vxz Hkkx esa 6 x 5.3 CM dh [kjksapA
9& ck;sa ?kqVus ds ckgj dh vksj 4.2 x 3.8 CM dh [kjksapA
10& ck;s iSj ds Åij ds Hkkx esa 1.2 x 1 CM dh [kjksapA
11& Nkrh ds ihNs dh vksj [kjksapA
12& ckbZ Hkqtk ds ihNs dh rjQ 4.5 x 4 CM dh [kjksapA
13& ckbZ vxz Hkqtk esa ihNs dh rjQ 3.5 x 3 CM dh [kjksapA
14& ck;s gkFk ij ihNs dh vksj 3 x 2.5 CM dh [kjksap ,oa nkfgus vxwNs ij 2.7 x 2 CM dh [kjksap] nkfgus gkFk ds udy ij [kjksapA 15& nkfguh Hkqtk esa ihNs dh vksj 7 x 6 CM dh [kjksap] nkfguh vxz Hkqtk esa ihNs dh vksj 4.9 x 4 CM ,oa dksguh ij 6 x 5 CM dh [kjksapA 16& nkfgus gkFk ij ihNs dh vksj 5.8 x 5 CM dh [kjksapA 17& nksuksa iqBBs ,oa yxkrkj esa nkfguh tka?k rd ihNs dh vksj [kjksap FkhA Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 12 18& nkfguh ,Mh ds ihNs ,oa ckgj ds Hkkxksa esa [kjksap FkhA bl [kjksap ds lkFk esa ,Mh dh gM~Mh ¼dsydsfu;e½ Hkh f?kl xbZ FkhA 19& ckbZ iats ds vxwaBs ds uhps dh rjQ ,oa f}rh; vxwaBs ds uhps dh rjQ [kjksap FkhA mijksDr lHkh [kjksaps ?klhVus ds }kjk vkbZ gqbZ FkhA QVs gq;s ?kko ftuds fdukjksa ij [kjksaps FkhA fuEu LFkkuksa ij ns[ks x;s Fks %& 1& nkfguh Hkqtk esa vkxs dh vksj feyh gqbZ voLFkk esa 1.4 CM yEckbZ dk] Vkads dks [kksyus ij ;g ?kko 1.4 x 0.5 CM dk FkkA blds uhps fLFkr nkfguh Hkqtk dh gM~Mh VwVh gqbZ FkhA 2& nkfguh iSj dk vkxs dh vsj 3 feys gq;s ?kko ftuds fdukjs [kjksap feys gq;s FksA izR;sd dk vkdkj 3 CM dk Hkkjh ?kko] [kjksp rd xgjsa FksA 3& flj esa nkfguh vksj dku ds 6 CM mij 3.4 x 0.5 CM dh QVk gqvk ?
kko bl ?kko ds [kksyus ij bldk vkdkj 7 x 3 C M dk Hkh blds uhps fLFkr iSjkbVy gM~Mh 0.5 x 0.4 CM esa VwVdj vanj dh rjQ /kl xbZ FkhA 4& yky jax dh jsy dh iVjhuqek vkd`fr ds la[;k esa ls uhps dh pksaVsa] nkfgus rjQ ihB es Ldsyuqvk ds ,dne uhps dh 1 izR;sd dk vkdkj 7.2 x 2 CM dk FkkA 5& ckbZ rjQ ds mijh ,oa fupys gksB ij dhy dh pksV FkhA 6& ck;s dwYgs ij ¼lqtqfjdj byhtd Likbu ds mij½ dhy ,oa [kjksap dh pksV 6.7 x 5 CM dh FkhA 7& dwYgs dh gM~Mh vkxs dh vksj esa T;wfcax Hkkx esa VwVh gqbZ Fkh ,oa nkbZ ,oa ckbZ VwVh gM~Mh ds e/; 0.5 CM dk varj Hkh FkkA 8& nkfguh rjQ ls pkSFkh ,oa ikapoh ilyh VwVh gqbZ FkhA 9 & flj dh Ropk iwjh rjg ls jDrjaftr FkhA efLr"d esa nkfgus dku ds mij okys Hkkx esa lcM;wjy ¼iSjkbVy Hkkx esa½ ,oa ck;s ekFks ds LFkku ij 6 x 5 CM esa lcM;wjy jDr L=ko FksA 10& isV esa 70 CC v/kipk Hkkstu Hkh vU; vax LoLFk vkSj lQsn iM x;s FksA''
29. As per his opinion, there were multiple injuries on the body of the deceased coupled with fractures, signs of abrasion and blood loss. Death had occurred within 24 hours of the post-mortem. Injuries were caused by hard and blunt object and his report in regard to whether the death was homicidal or not, is available on record as Ex.P-12. Ex.P-12 reveals that deceased died in the evening during treatment.
Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 1330. Ex.P-13 is the figure showing injuries to the deceased. There are no injuries on the posterior side of the head of the deceased as is evident from Ex.P-13. As per Ex.P-14, cause of death was due to shock and hemorrhage as a result of multiple fractures, lacerated wounds and wounds of prolonged friction of body. Lacerated wounds were caused by hard and blunt objects. Injuries were homicidal, sufficient to cause death in ordinary course of nature.
31. Radharaman (PW-10) admits that he was informed by Gopal Soni about the incident when he along with Anil Sharma moved towards Fanda in his Tata Safari. Mukesh was lying there. Accused were not present. Then Panditji, Mahesh, Prem Narayan and this witness himself had lifted Mukesh and taken him in his Tata Safari to Chirayu hospital. This witness clearly admits that Mukesh had only asked for water and there was no other talk. Later on, he improvised that he had talked to Mukesh but admits that though he was available in the hospital till evening and police had come in front of him but he had not given any statements to the police.
32. Dr. G.S. Verma (PW-11), CMO, Chirayu Medical college, Bhopal informed that Arjun Mewada had informed that deceased was dragged by unknown vehicle by tying him with the vehicle.
33. Santosh (PW-12) is a witness of seizure. In front of him, Danda and rod were seized from the possession of Raees, Bablu @ Tahir Ali and Iqbal Ali. Sumo vehicle was also seized at the instance of Afzal Ali. All these recoveries were made from a closed factory.
34. Mohan Singh (PW-13) is a witness of seizure of swords from the possession of Jaleel Ali and Bhura Shah which were recovered from inside the factory. He admitted that his signatures are not available on Article 'C'. He Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 14 admitted in his cross-examination that Article 'C' was not sealed properly and only it was wrapped in a paper with the help of a cello tape.
35. Ajay Kumar Nair (PW-14) is the investigating officer. He stated that he wa s given information of the incident by Naresh Master and Achal Singh Prajapati. None of them have been examined before the Court of law. Nannu Lal Patwari, one of the witnesses of Mauka Naksha was also not examined before the Court of law. In para 35 of his cross-examination, this witness has admitted that when he received information about the incident from Naresh Master and Achal Singh at about 10.45 a.m. then he was informed that the incident took place at the instance of Afzal Ali and members of his family. Names of other persons were not given. He denied that he had reached Chirayu hospital on the date of the incident i.e. 15.04.2012. He further admitted that he had not seen the place of the incident before recording of the Dehati Nalsi. He further deposed that Rajendra Singh Mewada had met him in the office of Sewa Sahakari Samiti, Village Toomda and had said that since he had seen the incident and, therefore, Dehati Nalsi (Ex.P-1) was recorded. He admitted that on 15.04.2012 after registering case crime, he had not given intimation to the Magistrate concerned. He further admitted that on 16.04.2012, he had referred the dead body for postmortem to Gandhi Medical College and till then he was not knowing names of any of the accused. He admitted that in Ex.D-3, it is mentioned that deceased was injured by unknown persons. He further admitted that sword which was recovered from Jaleel Ali, Ex.P-15, was bearing blood stains but it was not produced to any doctor for examination. He further admitted that Mahesh Mewada had given his statements on 16.04.2012 and had not given any intimation to him prior to 16.04.2012.
3 6 . None of the witnesses were examined by the appellants in their Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 15 defence.
37. Two factors are to be examined before proceeding to arrive at any conclusion. Firstly, whether the injuries were accidental or homicidal. Secondly, in case of conflict between oral and medical testimony, which is to be believed.
38. As far as medical testimony is concerned, Dr. C.S. Jain (PW-9) has clearly termed the death to be homicidal. His report, Ex.P-12, is available on record. This could not be demolished in the cross-examination of the doctor. Therefore, first issue stands concluded that death being homicidal and was caused due to shock and hemorrhage as a result of multiple fractures, lacerated wounds and wounds of prolonged friction of body caused by hard and blunt object, as is mentioned in Ex.P-12.
39. When medical evidence is examined then one thing is clear that oral testimony to the extent it is in conflict with the medical testimony, can be discarded in the light of judgment of Hon'ble the Supreme Court in case of Thaman Kumar Vs. State of Union Territory of Chandigarh, (2003) 6 SCC 380, wherein it is held that if the doctors who conducted the post-mortem examination clearly opined that the death occurred due to asphyxia caused by strangulation then that evidence being in corroboration from the eyewitness account is to be believed. In fact, it is to be noted that and as held by Hon'ble Supreme Court in case of Punjab Singh Vs. State of Haryana, 1984 Supp SCC 233 that if direct evidence is satisfactory and reliable, the same cannot be rejected on hypothetical medical evidence.
40. In case of Anil Rai Vs. State of Bihar, (2001) 7 SCC 318 , Hon'ble Supreme Court has held that if medical evidence is properly read shows two alternative possibilities but not any inconsistency, the one consistent with the Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 16 reliable and satisfactory statements of the eyewitness has to be accepted.
41. In case of State of H.P. Vs. Jeet Singh, (1999) 4 SCC 370, Hon'ble Supreme Court has held that a sound principle to remember is that every criminal act is done with a motive but its corollary that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it, is not true.
42. In the present case, motive is made out, inasmuch as, act was committed because Mukesh was instrumental in sale of land in possession of Afzal and others as is deposed by Rajendra Singh Mewada (PW-1).
43. Thus, there is a motive and eye-witness too, which corroborates the medical evidence. However, ocular evidence of causing any injury with the sword is not made out from the medical evidence and to that extent, ocular evidence needs to be discarded. Merely, recovery of sword from a deserted factory compound, is not a sufficient circumstance to hold Jaleel and Bhura from whose possession swords were recovery, as guilty in terms of the Notification No. 6312-6552-II-B (i) Dated 22nd November, 1974, wherein it is notified as under:-
''Now therefore in exercise of the powers conferred by section 4 of the Arms Act, 1959, (No. 54 of 1959) read with the Government of India, Ministry of Home Affairs, Notification No. G.S.R. 1309, dated the 1st October 1962, the State Government hereby directs that the said section shall apply with effect from the date of publication of this Notification in the ''Madhya Pradesh Gazette'' to the whole of the State of Madhya Pradesh in respect of acquisition, possession or carrying of sharp edged weapons with a blade more than 6 inches long or 2 inches wide and spring actuated knives with a blade of any size in public places only.''
44. Thus, the prosecution having failed to prove the aspect of carrying or Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 17 possessing any sword as is evident from evidence of Rajendra Singh Mewada (PW-1) who categoricaly deposed in para 2 of his examination-in-chief that Mukesh was beaten with sticks, and other witnesses being inconsistent and having given contradictory statements in regard to possession or use of sword, their conviction under Section 25(1-B)b of the Arms Act is not made out and, therefore, both the accused Jaleel and Bhura are exonerated of the charges under Section 25(1-B)B of the Arms Act, 1959, inasmuch as, learned 14 th Additional Sessions Judge has failed to take the ocular evidence as well as the notification of the State Government into consideration.
45. As far as appellant Bhura Shah is concerned, Rajendra Singh Mewada (PW-1) has clearly admitted in his examination-in-chief that he does not know Bhura. He further admitted that he had not seen Bhura at the place of the incident. In view of such facts, Bhura's conviction on surmises and conjectures when he was not seen by the eye-witness and eye-witness Rajendra Singh Mewada (PW-1) on whose motorcycle, injured/deceased Mukesh was travelling, is made on the basis of surmises and conjectures and thus, cannot be sustained in the eyes of law. Therefore, when presence of Bhura Shah is not narrated by star prosecution witness Rajendra Singh Mewada (PW-1), nor his name is mentioned in the Dehati Nalsi (Ex.P-1), having failed to make a mention of the name of Bhura, his conviction cannot be sustained in the eyes of law, especially, in view of evidence of star prosecution witness Rajendra Singh Mewada (PW-1).
46. Similarly, though name of Jaleel is mentioned in the Dehati Nalsi (Ex.P-
1) but Arjun Mewada (PW-2) when admitted in para 3 of his examination-in-
chief that he had met Jaleel Bhai at Masjid mod which is at quite a distance from the place of incident, as is evident from Spot Map (Ex.P-7) and when this Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 18 witness Arjun Mewada had asked Jaleel to counsel his brothers, who were indulging in the incident but when according to this witness, Jaleel had gone towards Doraha which is in the opposite direction then presence of Jaleel too becomes doubtful, especially, when this witness has admitted that 4-5 days prior to that there was a dispute between Mukesh and Bablu. When Arjun Singh Mewada (PW-3) deposed that he had seen Bablu @ Tahir Ali, Iqbal and Raees in the Sumo vehicle along with two 12-13 years old boys and that Sumo was being driven by Afzal then it is evident that another eye-witness Arjun Singh (PW-3) had not seen Jaleel in the Sumo vehicle and he has been roped in because he happens to be related to other accused persons. There is no contradiction in the evidence of this witness Arjun Singh (PW-3).
47. Though this witness had mentioned that Jaleel had cut the rope with whic h Mukesh was tied with the Sumo vehicle using his sword but the Investigating officer said that the sword, which was recovered at the instance of Jaleel, was having blood stains. Sword was not sent for forensic examination. Witness of seizure admitted that sword was not properly sealed. There was no sealing wax on the seal and, therefore, seizure of the sword itself becomes doubtful. When these aspects are taken into consideration then involvement of Jaleel too is not made out from the facts and circumstances of the case.
48. In view of such evidence coupled with the fact that there was no sword injury caused to injured/deceased Mukesh as per the testimony of Dr. C.S. Jain (PW-9), conviction of Jaleel too along with Bhura Shah is not made out.
49. In view of such facts, conviction of Bhura Shah and Jaleel Ali under Section 148, 302/149 of IPC is not made out, inasmuch as, prosecution has Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 19 failed to point out that Bhura or Jaleel were either part of the unlawful assembly or were present at the place of the incident. Therefore, when presence of these witnesses is not made out then it cannot be said that they were either part of unlawful assembly or were guilty of rioting, armed with deadly weapons and, therefore, conviction of Jaleel and Bhura deserves to be and is hereby set aside.
50. As far as other accused persons, namely, Afzal, Tahir Ali @ Bablu, Iqbal Ali and Raees are concerned, there is commonality in the statements of Rajendra Singh Mewada (PW-1), who categorically deposed that when motorcycle had slipped due to intervention of Afzal, who had hit the handle of motorcycle with a rod, then Raees, Bablu, Afzal, Iqbal and Jaleel had beaten Mukesh with sticks.
51. At a distance of 200 meters, he had stopped and called his brother Mahesh, who too had reached the place of incident. In the second part, Mukesh was tied with a rope to the Tata Sumo and was dragged. Thereafter, at some distance accused left Mukesh and ran away.
52. As far as evidence of Arjun Mewada (PW-2) is concerned, he has admitted that he had met Jaleel at the turning of Masjid. Arjun Mewada (PW-2) who was in a 407 vehicle and was going to Doraha to fill his vehicle, had asked Jaleel Bhai to counsel his brothers and this statement of Arjun Mewada (PW-2) has remained unrebutted in cross-examination and further he has not been reexamined on this aspect, presence of Jaleel as discussed above at the place of incident became doubtful and to that extent, statement of Rajendra Singh Mewada (PW-1) can be rejected but for others, his testimony has remained unrebutted.
53. Similarly, Arjun Mewada (PW-2) has clearly mentioned in his statement Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 20 that Afzal, Bhura, Jammu and son of Raees Bhai were standing there. As far as Bhura is concerned, he has already been given clean chit by Rajendra Singh Mewada (PW-1) who has clearly mentioned that Bhura was not seen at the place of the incident, therefore, presence of Bhura too becomes doubtful.
54. Arjun Singh (PW-3) has mentioned that he had seen Bablu, Iqbal, Raees, sitting in the Sumo vehicle along with two children aged about 12-13 years. Said vehicle was being driven by Afzal. This witness categorically deposed that he had seen Mukesh being tied with a rope measuring about 15 feet. There is no contradiction to this evidence that Mukesh was tied with a rope, measuring about 15 feet.
55. Radharaman (PW-10) has attributed his narration to Gopal Soni (PW-
7). Gopal Soni (PW-7) has clearly deposed that he had seen Mukesh being dragged by Afzal, etc. from a vehicle. His legs were tied to a Sumo vehicle. When this evidence of Radharaman (PW-10) is read with that of Gopal Soni (PW-7) then story of Mukesh being dragged after tying with a Sumo vehicle gets corroborated from the evidence of Dr. C.S. Jain (PW-9) who has deposed that all the injuries were caused due to friction and dragging. There is no relevant cross-examination on this aspect, though lengthy argument has been advanced by Shri Prasanna Namdeo, to dispute the fact of deceased being dragged. When all these facts are taken into consideration then involvement of Afzal, Tahir Ali @ Bablu, Iqbal Ali and Raees, cannot be disputed.
56. In case of State of Rajasthan Vs. Smt. Kalki and another (1981) 2 SCC 752, Hon'ble the Supreme Court has held that normal discrepancies are no t material discrepancies. While appreciating evidence, one has to keep in mind that in the deposition of witnesses, there are always normal discrepancies Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 21 however honest and truthful they may be. Those discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
57. There is a commonality in the statements of the witnesses in regard to involvement of these four persons. It has come on record and as discussed in para 15 in the cross-examination neither Rajendra Singh Mewada (PW-1), Arjun Singh (PW-3) or Gajraj (PW-4) were subjected to such cross-examination to dispute presence of these four persons.
58. Hon'ble the Supreme Court in case of Shyamal Ghosh Vs. State of West Bengal, AIR 2012 SC 3539 has held that delay in examination of witnesses is a variable factor. It would depend upon a number of circumstances.
59. Investigating Officer Shri Ajay Kumar Nair (PW-14) has admitted that he had not visited Chirayu hospital on 15.04.2012, and therefore, if statements of witnesses were not recorded on 15.04.2012 but on 16.04.2012 / 21.04.2012, as is evident from Ex.D-1, Ex.D-2, Ex.D-4, Ex.D-5, Ex.D-6 and Ex.D-8 then that is not fatal error so to discard complete prosecution case. In fact, statements of Mahesh Mewada (PW-5) were recorded on 16.04.2012 but he is not an eye-witness. Statements of Arjun Singh Mewada were recorded on 16.04.2012. He has taken names of Afzal, Bablu, Raees, Iqbal and others. Defence could not dispute presence of these persons at the place of the incident and their involvement in helping Afzal in firstly intercepting then beating and finally tying deceased Mukesh with Sumo vehicle with the help of which deceased was dragged for some distance.
Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 2260. When all these facts are taken into consideration then reliance on the judgment of this High Court in case of Gaurav Pandey Vs. The State of Madhya Pradesh (Criminal Appeal No.119 of 2016, decided on 25.07.2022) which deals with conduct of witnesses and law laid down by Hon'ble the Supreme Court in case of Mohd. Jabbar Ali and others Vs. The State of Assam, 2022 SCC Online 1440, has limited application.
61. As far as evidence of interested witnesses is concerned, a three Judges Bench of Hon'ble Supreme Court in Smt. Kalki (supra) has held that 'related witness' is not necessarily 'interested witness'. It has drawn distinction between 'natural witness', 'related witness' and 'interested witness'. Defence could not dispute presence of any of the so-called 'related witnesses' or 'interested witnesses' and, therefore, judgment of Hon'ble Supreme Court in case of Mohd. Jabbar Ali (supra) has no application to the facts of the present case.
62. Similarly, even conduct of the witnesses is well examined. It is obvious that there may be some discrepancies as observed by Hon'ble Supreme Court in Smt. Kalki (supra) and those discrepancies have been taken care of by this Court, therefore, it cannot be said that conduct of witnesses is such that calls for acquittal of accused Afzal Ali, Tahir Ali @ Bablu, Iqbal Ali and Raees Ali.
63. Thus, when overall evidence is examined, material facts and circumstances are taken into consideration, coupled with the fact that there is a motive. There was enmity and the cause of enmity was that Mukesh was instrumental in selling of a land of Shaukat Miyan which was in possession of Afzal and his brothers, in favour of one Raja Seth of Bairagarh, the conviction of these four accused persons under Sections 148, 302/149 of IPC, cannot be faulted with. Thus, appeal filed on behalf of Afzal Ali, Tahir Ali @ Bablu, Iqbal Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 21-11-2023 19:44:42 23 Ali and Raees Ali fails and is dismissed.
64. However, appeal filed on behalf of appellants Jaleel Ali and Bhura Shah deserves to be and is hereby allowed. Their conviction is set aside. If they are not required in any other case then Jaleel Ali and Bhura Shah be released forthwith.
65. In above terms, this criminal appeal is disposed of.
(VIVEK AGARWAL) (VISHAL DHAGAT)
JUDGE JUDGE
pp
Signature Not Verified
Signed by: PUSHPENDRA
PATEL
Signing time: 21-11-2023
19:44:42