Madhya Pradesh High Court
Pawan Yadav & Ors. vs The State Of M.P. on 27 January, 2016
Author: P.K. Jaiswal
Bench: P.K. Jaiswal
CRA No.221 & 293 of 2003
HIGH COURT OF MADHYA PRADESH : INDORE
BEFORE DIVISION BENCH: JUSTICE P.K. JAISWAL
JUSTICE SUBHASH KAKADE
Cr.A. No.221 of 2003
Sohan S/o Lalsingh Dhakad
vs
The State of Madhya Pradesh
*****
Cr.A. No.293 of 2003
Pawan Yadav S/o Kanhaiyalal & Ors.
vs
The State of Madhya Pradesh
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PRESENCE :
For appellants : Shri C.L. Yadav, Senior Advocate with
Shri O.P. Solanki, Advocate for
appellant Sohan(in Cri.A. No.221/2003),
appellant No.8 Laxman, No.9 Bhagat
and No.11 Mannu yadav(in Cri. A.
No.293/2003).
Shri S.R. Saraf, Senior Advocate
with Shri Rizwan Khan, Advocate for
appellant Nos.1 Pawan Yadav, No.4
Ashok Sarpata, No.6 Narsingh and
No.12 Kannu @ Kanhaiyalal(in Cri. A.
No.293/2003).
Shri Salim Khan and Shri Sameer
Athawale, Advocates for appellant No.7
Babu @ Kamal Gawli and No.10
Mangal(in Cri. A. No.293/2003).
Shr Avinash Sirpurkar, Advocate
for the appellants no.2 Nandu @
Nandkishore and No.3 Sonu @ Sohan
Singh(in Cri. A. No.293/2003).
For respondent : Shri Deepak Rawal, learned Dy.
A.G. for the respondent/State.
CRA No.221 & 293 of 2003
JUDGMENT
(Delivered on this 27th day of January, 2016) Per P.K. Jaiswal, J.
This judgment shall govern the disposal of Cr.A. No.221 of 2003 and Cr.A. No.293 of 2003 respectively.
2. Both these appeals under Section 374(2) of the Criminal Procedure Code has been filed by the appellant/accused Sohan (in Cri.A. No.221/2003) and appellants No.1 - Pawan Yadav, No.2 - Nandu @ Nandkishore Gawli, No.3 Sonu @ Sohan Singh Jhala, No.4 Ashok Sarpata, No.5 - Santosh S/o Manohar Singh Thakur, No.6 - Narsingh S/o Lalji Gawli, Babu @ Kamal Gawli, No.8 - Laxman, No.9 - Bhagat, No.10 - Mangal, No.11 - Mannu Yadav and No.12 - Kannu @ Kanhaiyalal (in Cri. A. No.293 of 2003) against the judgment of conviction dated 17/02/2003, passed by learned Special Judge SC/ST(Prevention of Atrocities) Act, Indore in Special Case Nos.796/2000 convicting all the aforesaid twelve appellants for the charge under Section 302/149 of IPC and sentenced to Life Imprisonment with fine of Rs.1,000/- to each of them and in default of payment of fine, to undergo further RI of 3 months and under Section 148 of IPC sentenced to 1 year RI to each of the appellant, who with a common object armed with deadly weapons committed the murder of Roshan.
3. Hukumsingh Yadav(PW15), Inspector of Police Station - Sanyogitaganj, Indore on receiving a telephonic information about the incident of the alleged crime, reached at the spot recorded Dehati Nalishi(Ex-P/13) lodged by complainant Lakhan(PW5), brother of deceased Roshan at about 2.45 p.m. CRA No.221 & 293 of 2003 On the basis of Dehati Nalishi, named FIR(Ex-P/47) under Sections 302, 307, 147, 148 and 149 of IPC was registered against accused Nandu Bhau, Sonu, Babu @ Kamal Gawli, Mangal, Ashok Sarpata, Shankar Pahalwan, Bhagat, Mannu, Santosh, Narsingh, Laxman, Pawan Yadav, Shekhar, Kannu @ Kanhaiyalal S/o Ambaram Balia, Mohit, Panna and Sohan.
4. The prosecution story in brief is that Roshan has formed a new Union known as "Nau Nath Baba Hammal Sangh, Indore". On 7.09.2000 at about 1.30 p.m when Roshan, his brother complainant - Lakhan(PW5), Jaheer(PW8), Surendra(PW14), Narendra, Chandrashekar (PW6) and Nannu went to inaugurate and start the office of the Hammal Union at Nemawar Road, Mechanic Nagar, near Ojha Petrol Pump and installed 'gumti', at that time, Sonu and Nandu belonging to 'Nav Jyoti Hammal Sangh', came there and advised Roshan not to run the aforesaid new union. But Roshan refuted the same. Thereafter, accused Sonu @ Sohan Singh and Nandu @ Nandkishore returned back to their office and after sometime the President of Nav-Jyoti Hammal Sangh named Sohan Patil along with his colleagues named Nandu Bhau, Babu Gawli, Mangal, Sonu, Shankar(acquitted), Bhagat, Ashok Sarpata, Mannu, Narsingh, Santosh, Laxman, Pawan, Shekhar R/o Azad Nagar and Kannu Ambaram R/o Palda Naka, Rohit, Panna Bihari and 8-10 other colleagues R/o Shiv Nagar, armed with Deshi Katta, revolver, sword, lathi, and iron rod came at the spot. Upon seeing the accused persons, Roshan and other persons fled away in different directions. Accused Nandu, Sonu, Babu and Mangal were CRA No.221 & 293 of 2003 armed with Deshi-Katta, Ashok Sarpata, Shankar, Panna and Narsingh were armed with sword, Kannu and Shekar had iron rod, Pawan had hockey and other accused persons had sticks and lathi. Accused Nandu and Sonu shot fire by Deshi-Katta aiming Roshan as a result of which Roshan fell down. Thereafter, accused Ashok Sarpata inflicted 3-4 blows on the head of Roshan by sword resulting into death of Roshan. At that relevant point of time, accused Sonu and Nandu were continuously firing, but none of them caused any gun shot injury. Thereafter, all the accused persons ran away towards Palda.
5. After the alleged incident, when Complainant - Lakhan(PW5) went near Roshan, he found him dead. On the same day at about 14:15 hours, a Dehati Nalishi was recorded at the instance of Lakhan (PW5). On the basis of Dehati Nalishi(Ex-P/13), FIR(Ex-P/47) was registered against the accused persons. Safina Form(Ex-P/3), Spot Map(Ex-P/1) was prepared by Inspector Hukumsingh Yadav(PW15). He also wrote a letter vide Ex-P/57 for postmortem of the dead- body of the deceased.
6. Dr. Ravindra Choudhary(PW13) conducted the postmortem of the body of deceased at about 10.40 a.m. on 8/09/2000 and found the following ante-mortem injuries which reads as under:-
1. Incised wound blood transversely on left parietal region posteriorly 7 x 2 cms cutting bone and brain below, clots present, edges well defined, regular, everted, tapping backward surrounding scalp hairs cut.
2. Incised wound (I.W.) on left side face 8.5 cms x 3 cms cutting bone and brain matter below, oblique transverse cutting upper part of left ear extending upto mastoid process, edges CRA No.221 & 293 of 2003 regular well defined everted, clots present surrounding haris cut.
3. Incised wound (I.W.) on left side face extending from lateral side of left eye and oblique transverse cutting left ear 4 x 1 x 1 c.m., edges regular defined everted, clots present.
4. Another Incised Wound just below injury no.3 and measuring 4 cm x 1 x 1 cm, clots present.
5. Contused abrasion oblique transverse on left side face 3 x 0.5 cm, red.
6. Contused abrasion red oblique on left side jaw lateral 3 x 0.6 cms.
7. Contused abrasion 4 x 1.5 cms transverse on right cheek below eye, red.
8. Contused abrasion 9 x 0.5 cm red in right shoulder , lateral.
9. Incised wound vertical oblique on left side region 7.5 cm x 2 x 3 cms deep cutting bone below brain, surrounding hair cut, edges regular well defined everted, clots present.
10. Contused abrasion 5 x 0.8 cms oblique on right side neck, red.
11. contused abrasion 6.5 x 0.8 cm red oblique on nap of neck post.
12. Incised abrasion 17 x 0.8 cms on left side back scapular region extending down and to right side red.
13. Incised abrasion 16.5 cms x 0.5 cms transverse oblique on right side back near scapula extending down to left side red.
14. Incised wound on left buttock near middle 2.5 x 0.5 x 0.5 cms edges regular neck deferred, clots present.
15. Incised wound transverse oblique on left buttock near anus 2.5 x 0.5 x 0.4 cm.
16. Incised wound on right buttock near mid line 2 x 0.5 x 0.8 cm clots present and edges regular everted.
17. Incised wound on right buttock lateral oblique placed, clots present, edges regular well defined.
18. Incised wound lateral side of right thigh posterior vertically oblique 0.5 cm x 0.5 cm x 0.4 cms, edges regular and well defined everted, clots present.
7. As per Dehati Nalishi(Ex-P/13), two eye-witnesses CRA No.221 & 293 of 2003 Naresh and Nandu were not examined by the prosecution. After completion of investigation, the challan was filed. After filing of challan, letter dated 1/12/2000(Ex-D/5) has been written by Chandrashekhar Joshi(PW6), who made a request to the CSP of Sanyogitaganj Police Station that, at the time of occurrence, number of persons were discussing that accused Ravi, Shekhar, Panna and Mohit are also involved in the alleged crime on 7/09/2000 and, therefore, they have been implicated in the alleged offence whereas on verification, he found that the main accused persons are Nandu, Sonu, Ashok, Santosh, Narsingh, Babu Gawli, laxman, Bhagat, Mangal, Mannu Yadav, Shekhar Sohan and Kannu @ Kanhaiyalal, who are already arrested and made a request to delete the name of Ravi, Shekhar, Panna and Mohit in FIR as well as police statement (Ex-D/4) dated 7/09/2000 and supplementary statement recorded on 1/11/2000 vide Ex-D/3. Similar is the letter written on 7/12/2000(Ex-D/2) by eye- witness Lakhan(PW5). Relevant part of Ex-D/5 and Ex-D/2 dated 1/12/2000 and 7/12/2000 reads as under :-
Ex-D/5 dated 1/12/00 eSus Fkkuk izHkkjh la;ksfxrkxat Jh ,l-,p-;kno ds le{k nh Fkh] ;g fd ;g ?kVuk ?kfVr gqbZ ml le; ?kVuk ?kfVr djus okys vkjksih yksx vkil esa jfo 'ks[kj iUuk eksfgr cksy jgs FksA bl dkj.k eSusa lquh lqukbZ ckrks ds vk/kkj ij xokg nsrs le; buds uke fy[kk fn;s FksA ckn esa eSuas lc okLrfod :i esa irk yxk;k rks okLro esa jfo 'ks[kj iUuk eksfgr uke ds O;fDr gksuk ugha ik, x,A eq[; vkjksih uUnq] ckcq xoyh] lksuq eaxy] 'kadj igyoku] v'kksd ljiVk Hkaxr eUuq dUuq ujflax larks"k y{e.k iou ;kno vkSj lksgu iVsy fxj¶rkj gks pqds gS] vr% d`ik djds esjs }kjk iwoZ es nh xbZ xokg dFku es ls jfo 'ks[kj iUuk eksfgr ds ukeksa dks dkVus dh d`ik djsA Ex-D/2 dated 7/12/00 CRA No.221 & 293 of 2003 tks fjiksVZ fd Fkh mlesa eSus vkjksih uanq] ckcq xoyh] lksuq] eaxy] 'kadj igyoku] v'kksd ljiVk] Hkxr] euq] ujlhax] lUrks"k] y{e.k] iou ;kno] duq firk vEckjke] 'ks[kj eksghr] iUuk] o lksgu iVsy ds uke ekjfiV dj esjs HkkbZ ds dry djus esa uke fy[kk, Fks] ftles iou] uanq] lksuq] v'kksd] lUrks"k] ujflax] ckcq y{e.k] Hkxr] eaxy euq] duq] o lksgu iVsy fxjQ~rkj gks pqds gSA ;s fd tc esjs HkkbZ fd dry fd fjiksVZ eSaus fy[kkbZ Fkh ml le; eSus gM+cM+kgV esa 'ks[kj iUuk eksfgr ds uke Hkh yksaxks dh lquh lqukbZ ckrks ds vk/kkj ij fy[kk fn, Fks tks ckn esa eSus Lo;a okLrfod :i esa irk yxk;k rks okLro esa bl uke ds O;fDr gksuk ugha ik;s x,A vr% d`ik djds esjs nqckjk iwoZ es fd xbZ fjiksVZ es ls 'ks[kj] iUuk] eksfgr ds ukeks dks dkVus dh d`ik djsA
8. On the basis of the aforesaid letters and supplementary statement of lakhan(PW5) and Chandrashekhar(PW6), the name of accused Shekhar, Ravi, Panna and Mohit has been deleted from the array of accused.
9. During trial, eye-witnesses Lakhan(PW5) and Chandrashekhar(PW6) in their statement very categorically stated that accused No.2 - Shankarlal @ Shankar was armed with Sword and inflicted multiple injuries to deceased Roshan and he was also the member of the unlawful assembly. The defense of accused No.2 - Shankar was that he was never the resident of Azad Nagar nor he is in any way connected with the Hammal Association or worked as Hammal. He being owner of the bus, was doing the bus business.
10. Inspector - Hukumsingh Yadav(PW15) in para - 49 of his cross-examination has deposed that no Test Identification Parade was made regarding the identification of accused No.2 Shankar. Complainant Lakhan(PW5) also in para 28 and 29 of his cross-examination has admitted that accused No.2 Shankar @ Shankarlal is not connected with the Hammal Union nor he is working as Hammal, but he is doing the business of bus nor he has dispute with him.
CRA No.221 & 293 of 2003
11. Eye-witness Chandrashekhar(PW6) has also not known to accused No.2 - Shankar @ Shankarlal. This witness in his police statement has not deposed that accused Shankar @ Shankarlal caused sword injury to deceased. Investigating Officer - Hukumsingh Yadav(PW15) also in his statement has very categorically admitted that Chandrashekhar(PW6) in his police statement has not deposed that accused no.2 Shankar @ Shankarlal caused any sword injury to deceased. Other eyewitnesses namely Rajendra @ Gannu Sharma(PW2), Dinesh(PW3), Jaheer(PW8), Vijay Rathore(PW9) and Surendra Malviya(PW14) have not deposed about any overt act of accused No.2 Shankar @ Shankarlal nor any incriminating material has been recovered from the house of accused No.2 Shankar.
12. Considering the aforesaid facts and circumstances of the case so also the fact that accused No.2 Shankar @ Shankarlal was not the member of the unlawful assembly, acquitted him from the alleged offence. Para 45 , 46 and 47 of the impugned judgment are relevant which reads as under:-
45. mijksDr foospuk ls Li"V gS fd vkjksih 'kadj dks NksM+dj 'ks"k lHkh vkjksihx.k us vkjksih lksgu ds usr`Ro esa ryokj vksj ykfB;ksa ls e`rd jks'ku dh e`R;q dkfjr dhA ;g Hkh Li"V gS fd mijksDr lHkh vkjksihx.k us viuk lkekU; mn~ns'; cukdj fof/k fo:) lewg dk xBu djrs gq, mldh vxzljrk esa jks'ku dh e`R;q dkfjr djus ds vk'k; ls gks mDr ekjihV dh] D;ksafd jks'ku dks dkfjr pksaVs izd`fr ds lkekU; vuqØe esa e`R;q dkfjr djus ds fy, i;kZIr gksuk fpfdRld lk{kh MkW- jfoanz pkS/kjh 9-lk 13 us Li"V fd;k gSA
46. tgka rd vkjksih 'kadj ds mDr fof/k fo:) lewg dk lnL; jgs gksus vkSj mlds lkekU; mn~ns'; dks vxzlj djus dh Hkwfedk dk iz'u gS] mldh igpku fdlh Hkh lk{kh us ugha dh gS fd CRA No.221 & 293 of 2003 og ogh vktkn uxj okyk 'kadj gS] ftlds laca/k esa fd izFke lwpuk vafdr dh xbZ FkhA tcfd vkjksih 'kadj dk cpko ;g jgk gS fd og vktkn uxj esa dHkh ugha jgk gSA vkjksih 'kadj ds fo}ku vf/koDrk dk Hkh fyf[kr esa ;gh rdZ gS fd ^^vfHk;kstu ds vuqlkj fookfnr ?kVuk gEeky la?kksa ds vkilh fookn ds dkj.k gqbZ gS vkSj vkjksikh 'kadj dk gEeky ;k gEeky la?k ls dksbZ laca/k ugha gSaA vkjksih 'kadj cl dk O;olk; djrk gSA* bl laca/k foospuk vf/kdkjh fujh{kd Fkkuk izHkkjh gqdqeflag ;kno v-lk-15 us izfrijh{k.k iSjk 49 esa ;g crk;k gS fd ;g lgh gS fd fdlh Hkh p'enhn lk{kh ls mlus vkjksih dh igpku dk;Zokgh ugha djokbZ FkhaA ;gka rd fd lwpukdrkZ vfHk;ksxh yk[ku v-lk-5 us Hkh izfrijh{k.k iSjk 28 o 29 esa ;g Lohdkj fd;k gS fd ;g ckr lgh gS fd vkjksih 'kadj clk dk O;olk; djrk gS] og gEekyh ugha djrk gS vkSj u og fdlh gEeky okyh ;wfu;u ls laca/k j[krk gSA
47. vkjksih 'kadj ds fo}ku vf/koDrk us vius fyf[kr rdZ esa ;g Hkh crk;k gS vkjksih 'kadj dk dfFkr ?kVuk vkSj dfFkr fookj ls dHkh dksbZ laca/k ugha jgk gS] vr% mlds ?kVukLFky ij mifLFkr gksus dk dksbZ iz'u gh ugha gSA vfHk;ksxh us Lo;a vktkn uxj okys 'kadj dk uke fy[kk;k gS] tcfd vkjksih 'kadj vktkn uxj esa dHkh ugha jgk gS vfHk;ksxh yk[ku us Hkh vius eq[; ijh{k.k esa gh igpku ds le; vkjksih 'kadj] dk uke ugha crk;k gSA blh izdkj p{kqn'khZ lk{kh panz'ks[kj v-lk-6 Hkh vkjksih 'kadj ls ifjfpr ughaA ¼izfrijh{k.k iSjk 34½A ;gka rd fd mDr lk{kh panz'ks[kj tks'kh v-lk-6 us vius /kkjk 161 naizla ds varxZr iqfyl dFku iz-Mh-4 esa Hkh ;g ugha crk;k fd vkjksih 'kadj us jks'ku dks ryokjekjh FkhA foospuk vf/kdkjh gqdqeflag ;kno v-lk-15 us Hkh Lohdkj fd;k gS fd mijksDr lk{kh us mls mijksDr dFku iqfyl c;ku varXkZr /kkjk 161 naizla ds nkSjku ugha fn;kA mU; pa{kqn'khZ lk{kh jktsanz v-lk-
2]fnus'k v-lk- 3] tghj v-lk- 8] fot; jkBkSj v-lk-9] lqjsanz ekyoh; v-lk-14 fdlh us Hkh vkjksih 'kadj ds ckjs esa dqN Hkh ugha crk;k gSA exZ baVhes'ku iz-ih-56 esa Hkh vkjksih 'kadj dk uke ugha gSA ;gka rd fd vkjksih 'kadj dk /kkjk 27 lk{; fo/kku ds v/khu [kkstlwpd eseks ugha cuk;k gS] mlls dksbZ tIrh uga gqbZ gSA bu ifjfLFkfr;ksa ls ;gh izdV gksrk gS fd vkjksih 'kadj mDr fof/k fo:) lewg dk lnL; ugha Fkk vkSj mls fof/k fo:) dk lnL; ekuuk Hkh U;kf;d n`f"V ls lqjf{kr ugha gksxkA vr,o mls lansg dk ykHk fn;k tkuk mfpr izrhr gksrk gSA vr% vkjksih 'kadj dks vkjksfir vijk/k ls nks"keqDr fd;k tkrk gSA
13. The learned trial Court by impugned judgment, convicted accused Sohan(in Cri. A. No.221/2003) and appellants No.1 Pawan, No.2 Nandu @ Nandkishore, No.3 Sonu @ Sohan Singh, No.4 Ashok Sarpata, No.5 Santosh, No.6 Narsingh S/o Lalji Gawli, No.7 Babu @ Kamal Gawli, No.8 Laxman, No.9 Bhagat, No.10 Mangal, No.11 Mannu Yadav and No.12 Kannu @ Kanhaiyalal (in Cri. A. No.293/2003) and sentenced CRA No.221 & 293 of 2003 them as aforementioned.
14. Shri C.L. Yadav, Learned Senior Counsel, who is appearing on behalf of appellant Sohan in Cri.A. No.221/2003 has contended that the charges against appellant Sohan were under Sections 148 and 302/149 of IPC, but he submitted that as per prosecution story itself, appellant
- Sohan was not member of the unlawful assembly. Therefore, his conviction is bad in law, because no person can be convicted with the aid of Section 149 of IPC, who is not a member of unlawful assembly.
15. To support the aforesaid, he submitted that the eye- witnesses Lakhan(PW5), Vijay(PW9) and Surendra Malviya(PW14) in their statement have not made any allegation against accused Sohan(appellant in Cri.A. No.221/2003).
16. Eye-witness Chandrashekhar(PW6) in para 2 and 3 of his court statement has stated the name of appellant Sohan(appellant in Cri.A. No.221/2003), but he has not stated the name of appellant Sohan in his police statement (Ex-D/4) recorded on 7/09/2000. PW6 in his supplementary statement (Ex-D/6), which was recorded on 1/12/2000 has deposed the name of appellant Sohan.
17. Similarly, eye-witness Jaheer (PW8) has deposed the name of accused Sohan(appellant in Cri.A. No.221/2003) in para 2 of his court statement but he has not made any statement against him in his police statement(Ex-D/7), recorded on 8/09/2000, which is evident from para 5 of his statement.
18. In respect of appellant No.9 Bhagat( in Cri. A. CRA No.221 & 293 of 2003 No.293/2003), learned Senior Counsel Shri C.L. Yadav submits that eye-witnesses Lakhan(PW5), Chandrashekhar(PW6) and Vijay Rathore(PW9) have not made any allegation against accused Bhagat. Eye-witness Jaheer(PW8) has made an allegation against appellant No.9 Bhagat in para 2 and 3 of his statement but he has not stated his name in his police statement (Ex-D/7) and when he was confronted with his police statement (Ex-D/7), he admitted this fact in para 5 of the statement.
19. Similarly eye-witness Surendra Malviya(PW14) has stated the name of appellant No.9 Bhagat( in Cri. A. No.293/2003), in para 2 of his statement and deposed that accused Bhagat was armed with lathi, but there is omission in his police statement(Ex-D/9) as is evident from para 25 of his cross-examination. He submitted that there are material improvements in para 2 and 25 of the statement of Surendra Malviya(PW14). In para - 2 he has deposed that appellant No.9 Bhagat was armed with lathi whereas in his police statement (Ex-D/9) he has stated that appellant No.9 was armed with Sword and, thus, he is an interested witness and, therefore, the statement of eye-witness Surendra Malviya(PW14) is doubtful and is not reliable.
20. In respect of appellant No.8 - Laxman (in Cri. A. No.293/2003), eye-witnesses Vijay(PW9) and Surendra Malviya(PW14) have not made any allegation against appellant No.8. Another eye-witness Lakhan(PW5) has stated about the presence of appellant No.8 - Laxman in para 3 and 4 of his statement, but there is no overt act attributed against appellant No.8 during the alleged incident as is evident from CRA No.221 & 293 of 2003 para - 13 of his statement. Chandrashekhar(PW6), another eye-witness in his statement has stated the name of appellant No.8 - Laxman in para - 2 and 3 of his court statement, but there is no allegation about any overt act by him during the alleged incident. Last eye-witness Jaheer(PW8) in para 2 and 3 of his statement has stated the name of appellant No.8 - Laxman, but there is no allegation about any overt act by him during the alleged offence. In police statement(Ex-D/7) of Jaheer(PW8), name of appellant No.8 - Laxman was also missing and this fact has been admitted by Jaheer(PW8) in para - 5 of his statement.
21. In respect of appellant No.11 - Mannu Yadav(in Cri.A. No.293/2003), it is submitted that Lakhan(PW5), Jaheer(PW8), Vijay(PW9) and Surendra Malviya(PW14), eye-witnesses of the case have not made any allegation against him. Chandrashekar(PW6), last eye-witness of the case in para - 2 of his court statement has stated the name of appellant No.11 Mannu Yadav, but there is no allegation about any overt act by him during the alleged incident as is evident from the police statement(Ex-D/4) of Chandrashekar(PW6). He submitted that looking to the conduct of the eye-witnesses, it is a case of false implication against appellant Sohan S/o Lalsaingh (appellant in Cri.A. No.221/2003) and appellants No.8 -
Laxman, No.9 - Bhagat and No.11 - Mannu Yadav(appellants in Cri.A. No.293/2003).
22. The contention of Shri C.L. Yadav, learned Senior Counsel is that if we scrutinize the testimony of all the eye- witnesses namely Lakhan(PW5), Chandrashekar(PW6), Jaheer(PW8), Vijay Rathore(PW9) and Surendra CRA No.221 & 293 of 2003 Malviya(PW14), their evidence is found to be discrepant in its material particulars and on the basis of their evidence, it is quite unsafe to act upon the evidence of aforesaid eye- witnesses whose testimony are clouded with grave suspicion and serious doubts and submitted that it is unsafe to convict the appellants and, therefore, for all the aforementioned reasons, the impugned judgment is liable to be set aside. He also placed reliance on the decision of Apex Court in the case of Jagdish prasad & Ors. vs. State of M.P. And Bawan Kumar v. State of M.P.[AIR 1994 SC 1251]; Babbu @ Babulal, Deviram & Ors. vs. State of M.P.[2011 CRI. L.J. 3843]; and unreported decision of M.P. High Court, Indore Bench in Criminal Appeal No.501/1994 dated 27/10/1999(Badrilal & Ors. vs. State of M.P.). In respect of false implication, he has placed reliance on the decision of the Apex Court in the case of B.N. Singh etc. v. State of Gujarat etc[AIR 1990 SC 1628]; State of U.P. v. Moti Ram & another etc.[AIR 1990 SC 1709] and Sajjan Sharma v. State of Bihar[AIR 2011 SC 632].
23. As per statement of prosecution witnesses, appellants No.2 Nandu @ Nandkishore, No.3 - Sonu @ Sohan Singh, No.7 - Babu @ Kamal Gawli and No.10 Mangal (appellants in Cri.A. No.293/2003) were armed with firearm whereas as per statement of Dinesh(PW3) and Lakhan(PW5) and statement of Dr. Ravindra Choudhary(PW13) so also as per postmortem report, no gun shot injury was found on the person of deceased Roshan and placed reliance on the decision of the Apex Court in the case of Amar Singh & Ors. v. State of Punjab[AIR 1987 SC 826]; Chhakki v. State of M.P.[1990 CRA No.221 & 293 of 2003 JLJ 772] and Mangilal & Ors. v. State of M.P.[1990 JLJ 401]. He further submitted that appellant - Sohan(in Cri.A. No.221/2003), appellant Nos.8 - Laxman, No.9 - Bhagat and No.11 - Mannu Yadav(appellants in Cri.A. No.293/2003) were not the member of the unlawful assembly. He submits that statements of complainant - Lakhan(PW5) and Chandrashekar(PW6) have been disbelieved by the learned trial Court while acquitting accused No.2 Shankar @ Shankarlal and submitted that the impugned judgment is liable to be set aside.
24. Shri S.R. Saraf, learned Senior Counsel, who is appearing on behalf of appellant Nos.1 Pawan Yadav, No.4 Ashok Sarpata, No.6 Narsingh and No.12 Kannu @ Kanhaiyalal(in Cri. A. No.293/2003), submitted that as per prosecution appellant No.1 - Pawan was armed with a hockey, appellants No.4 - Ashok Sarpata and No.6 - Narsingh were armed with sword and appellant No.12 - Kannu @ Kanhaiyalal was armed with iron rod whereas eye-witness Chandrashekar(PW6), in para 2 and 3 of his statement has not stated the name of appellant Nos.1 Pawan Yadav, No.4 Ashok Sarpata, No.6 Narsingh and No.12 Kannu @ Kanhaiyalal, but in para 25 of his statement has stated that he has identified appellant No.1 - Pawan in Test Identification Parade. Eye-witness Lakhan (PW5) in para - 3 of his statement has made an allegation against appellants No.1 Pawan, No.4 - Ashok Sarpata and No.6 - Narsingh. Another eye-witness Jaheer (PW8) in para - 3 of his statement has deposed that appellant No.4 - Ashok Sarpata and No.1 Pawan were armed with Sword and Hockey respectively and inflicted CRA No.221 & 293 of 2003 injuries on the deceased. But in his police statement (Ex-D/7) the name of appellants Pawan, Narsingh and Kannu @ Kanhaiyalal are missing. Another eye-witness Vijay Rathore (PW9) in para - 3 of his court statement has made an allegation against appellants Ashok Sarpata, Pawan and Kannu @ Kanhaiyalal of causing injury to deceased Roshan. Last eye-witness - Surendra Malviya(PW14) in para 2 of his court statement has stated the name of appellants Ashok Sarpata and Narsingh regarding causing injury to deceased Roshan, but in his police statement name of appellant Narsingh was missing.
25. Shri Saraf, learned Senior Counsel also placed reliance on the decision of the Apex Court in the case of Shaji & Ors. v. State of Kerala[AIR 2011 SC 1825]; Jagga Singh & Anr. v. State of Punjab[2011 Cri. L.J. 1457]; Bharat Soni etc. v. State of Chhattisgarh[2013 Cri.L.J. 486], Ganesh Datt v. State of Uttarakhand[AIR 2014 SC 2521]; Mohansingh S/o Khemraj & ors. v. State of M.P.[2005(4) M.P.L.J.] 183 and Basisth Roy & Ors. v. State of Nihar[AIR 2003 SC 1439]. He submits that there is inconsistency between ocular and medical evidence. The prosecution has failed to establish its case against appellant Nos.1 Pawan Yadav, No.4 Ashok Sarpata, No.6 Narsingh and No.12 Kannu @ Kanhaiyalal(in Cri. A. No.293/2003) regarding the fact that they were the member of the unlawful assembly and they with a common object committed the murder of deceased Roshan and, therefore, submitted that the impugned judgment is liable to be set aside and prayed for acquittal of appellants.
26. Shri Avinash Sirpurkar, learned counsel appearing on CRA No.221 & 293 of 2003 behalf of appellants No.2 Nandu @ Nandkishore and No.3 Sonu @ Sohan Singh(in Cri. A. No.293/2003) submits that as per Ex-P/37 and P/38, appellant Nandu was armed with country made pistol, but they are not convicted under the Arms Act. As per para 5 and 13 of Dr. Ravindra Choudhary(PW13), no gun shot injury was found on the person of deceased. Ex- P/54 is the postmortem report of deceased Roshan. In the court statement of eye-witness/complainant Lakhan(PW5), no allegation about any overt act by appellants No.2 Nandu @ Nandkishore and No.3 Sonu @ Sohan Singh has been made during the alleged incident. Other eye-witnesses Chandrashekar(PW6) in para - 3, Jaheer(PW8) in para - 8 and Surendra Malviya(PW14) in para 2 of their statement has deposed that appellants Nandu and Sonu were armed with country made pistol and started firing gun shot injury to the deceased as a result of which Roshan fell down, but as per the statement of Dr. Ravindra Choudhary(PW13), no gun shot injury was found on the person of deceased. He has also placed reliance on the decision of Apex Court in the case of Jagga Singh & anr. vs. State of Punjab[2011(2) M.P.L.J.(Cri.) 304].
27. Shri Salim Khan, learned counsel with Shri Sameer Athawale, learned counsel for appellant No.7 Babu @ Kamal Gawli and No.10 Mangal(in Cri. A. No.293/2003) submits that as per Dehati Nalishi(Ex-P/13), appellants No.7 Babu @ Kamal and No.10 - Mangal (in Cri.A. No.293/2003) were armed with country made pistol, but there is no allegation regarding causing any gun shot injury by them, only presence of the aforesaid appellants on the spot is mentioned. Eye-
CRA No.221 & 293 of 2003 witness Lakhan(PW5) in para - 3 of his statement has stated the name of appellant No.7 Babu @ Kamal Gawli and No.10 Mangal, but there is no allegation about any overt act against appellant No. 7 - Babu @ Kamal in his police statement (Ex- D/1). Eye-witness Chandrashekhar (PW6) has also stated the name of appellant No.7 Babu in para 3 of his statement, but he in his police statement (Ex-D/4) has not made any allegation about any overt act by appellant No.10 - Mangal. Another eye- witness Jaheer(PW8) in para 3 of his statement has made allegation against appellant No.10 - Mangal regarding causing injury by fire arm to deceased whereas in his police statement (Ex-D/7) he has made allegation against appellant No.7 - Babu regarding causing gun shot injury, but there is omission about any overt act by appellant No.10 - Mangal. Another eye-witness Vijay Rathore (PW9) in his court statement has not made any allegation against appellant No.7- Babu @ Kamal and No.10 - Mangal. He has only stated about the presence of the aforesaid appellants at the place of occurrence, but the same fact is missing in his police statement(Ex-D/8). Last eye-witness Surendra Malviya(PW14) in his court statement has not made any allegation against appellant No.7 - Babu @ Kamal Gawli and No.10 Mangal regarding causing gun shot injury to deceased. In his police statement (Ex-D/9) also name of appellant No.7 - Babu and No.10 - Mangal are missing.
28. Learned Senior Counsel for the appellants submits that they are all interested witnesses and they have falsely implicated the appellants and there is no guarantee whether they are speaking the truth against other accused. It is also CRA No.221 & 293 of 2003 their statement that the prosecution has deliberately omitted to examine individual witnesses from the locality in which the occurrence has taken place and submitted that the appeals be allowed and the appellants be acquitted from the alleged offence, as the prosecution has failed to prove its case beyond reasonable doubt.
29. Shri Deepak Rawal, learned Deputy Advocate General appearing for the respondent / State, submits that though as per the statement of eye witnesses, no allegation has been made against appellant Sohan s/o Lal Singh Dhakad (in Criminal Appeal No.221/2003) and appellant No.9 Bhagat s/o Rajaram Yadav, appellant No.8 Laxman s/o Gangaram Gawli, appellant No.1 Pawan Yadav s/o Kanhaiyalal, appellant No.6 Narsimb s/o Lalji Gawli and appellant No.2 Nandu @ Nandkishore s/o Omkarlal Gawli in Criminal Appeal No.293/2003; and there are material omissions in the statement of eye witnesses, but as per their statement, specific allegation has been made against appellant No.4 Ashok Sarpata s/o Sudama Bhau that he attacked deceased Roshan with sword and inflicted fatal injuries to the deceased Roshan. As per postmortem report Ex.P/54, the deceased sustained 12 twelve incised wounds and six contusions. The learned trial court relied upon the evidence of eye witnesses as against all the accused except accused No.2 Shankarlal @ Shankar Pahalwan s/o Puranlal Yadav by holding that he was not a member of the unlawful assembly, nor he was identified by the prosecution witnesses and convicted them, as mentioned above.
30. As per statement of material prosecution witnesses, CRA No.221 & 293 of 2003 there is rivalry between the accused, who wanted to start new union and the union of the deceased. The material witnesses are all interested witnesses. Out of total seven eye witnesses, which were examined before the learned trial Court, Rajendra @ Gannu Sharma (PW-2) and Dinesh (PW-3) did not support the case of the prosecution and they have been declared hostile. Rest five eye witnesses namely complainant Lakhan (PW-5), Chandrashekhar Joshi (PW-6), Jaheer (PW-8), Vijay Rathore (PW-9) and Surendra Malviya (PW-14), though named against appellant Sohan in Criminal appeal No.221/2003 and appellant No.1 Pawan Yadav s/o Kanhaiyalal, appellant No.2 Nandu @ Nandkishore s/o Omkarlal Gawli, appellant No.3 Sonu @ Sohan Singh s/o Narain Singh Jhala, appellant No.6 Narsimb s/o Lalji Gawli, appellant No.7 Babu @ Kamal Gawli s/o Ramchand Ghasita, appellant No.8 Laxman s/o Gangaram Gawli, appellant No.9 Bhagat s/o Rajaram Yadav, appellant No.10 Mangal s/o Man Singh Yadav, appellant No.11 Mannu Yadav s/o Kishanlal and appellant No.12 Kannu @ Kanhaiyalal s/o Ambaram Balia in Criminal Appeal No.293/2003. All the five eye witnesses in their statement have not made any allegation against them. Some of the eye witnesses in their Court statement made allegation against them, but there is omission in their police statement, nor any overt act has been attributed against them. We have examined the evidence of these five eye witnesses and their cross-examination and we are satisfied that they are highly interested witnesses, and therefore, we are not prepared to accept the prosecution version that appellant Sohan in Criminal appeal No.221/2003 and appellant No.1 CRA No.221 & 293 of 2003 Pawan Yadav s/o Kanhaiyalal, appellant No.2 Nandu @ Nandkishore s/o Omkarlal Gawli, appellant No.3 Sonu @ Sohan Singh s/o Narain Singh Jhala, appellant No.6 Narsimb s/o Lalji Gawli, appellant No.7 Babu @ Kamal Gawli s/o Ramchand Ghasita, appellant No.8 Laxman s/o Gangaram Gawli, appellant No.9 Bhagat s/o Rajaram Yadav, appellant No.10 Mangal s/o Man Singh Yadav, appellant No.11 Mannu Yadav s/o Kishanlal and appellant No.12 Kannu @ Kanhaiyalal s/o Ambaram Balia in Criminal Appeal No.293/2003, in any way, participated in the crime and inflicted injuries to the deceased.
31. In respect of appellant No.4 Ashok Sarpata, complainant Lakhan (PW-5), Chandrashekhar Joshi (PW-6), Jaheer (PW-
8), Vijay Rathore (PW-9) and Surendra Malviya (PW-14) in their statement very categorically stated that he was armed with sword and inflicted injuries to deceased Roshan. The aforesaid fact further find supports from the statement of Hukum Singh Yadav (PW-15), who in paragraph No.12 of his statement has made material evidence of his involvement and causing sword injuries to the deceased Roshan on his head. Recovery of arm has also been proved. The aforesaid admission goes to show that appellant No.4 Ashok assaulted the deceased and caused fatal injuries to him. Thus, we cannot accept the argument of Shri S.R. Saraf, learned Senior Counsel that appellant No.4 Ashok Sarpata was falsely implicated and statement of the interested witnesses are highly suspicious on the ground that in identical circumstances in respect of accused No.2 Shankarlal @ Shankar Pahalwan s/o Puranlal Yadav, learned trial Court disbelieved the statement CRA No.221 & 293 of 2003 of eye witnesses Lakhan (PW-5) and Chandrashekhar Joshi (PW-6) that accused No.2 Shankarlal @ Shankar Pahalwan caused any injuries to the deceased and acquitted him. As already observed that evidence of partisan witnesses cannot be rejected outright in respect of appellant No.4 Ahsok Sarpata.
32. As a general rule, a court can and may act on a testimony of a single witness though uncorroborated provided that testimony of that single witness is found out entirely reliable. In that case, there will be no legal impediment for recording a conviction. But, if the evidence is open to doubt or suspicion, the court will require sufficient corroboration. As per record, name of Ravi, Shekhar, Panna and Mohit has been deleted during investigation vide Ex.D/2 and Ex.D/5, on application for deleting their name. This shows that complainant Lakhan (PW-5) adopted the method of pick and choose and stated that the above four persons were not involved in the alleged offence. All the five eye witnesses namely Lakhan (PW-5), Chandrashekhar Joshi (PW-6), Jaheer (PW-8), Vijay Rathore (PW-9) and Surendra Malviya (PW-14) in their statement have not made any allegation against some of the twelve appellants and they in their cross-examination admitted the omissions of allegations and their name in their police statement. Thus, in view of the aforesaid, we are satisfied that the evidence of five eye witnesses Lakhan (PW-
5), Chandrashekhar Joshi (PW-6), Jaheer (PW-8), Vijay Rathore (PW-9) and Surendra Malviya (PW-14) seems to be not proper to rely upon the prosecution case with respect to the eleven appellants and we are of the considered view that CRA No.221 & 293 of 2003 their evidence does not inspire confidence.
33. Here is the case where witnesses for the reasons best known to them given clean chit to accused No.2 Shankarlal and during investigation name of Ravi, Shekhar, Panna and Mohit has been deleted, on the basis of letter dated 01.12.2000 vide Ex.D/2 of complainant Lakhan (PW-5). Immediately on the same day, supplementary statement of Lakhan (PW-5) vide Ex.D/3 and Chandra Shekhar (PW-6) vide Ex.D/6 was recorded. It is not the case where the Court on appreciation of the prosecution evidence of some of the partisan witnesses for reasons best known to them given clean chit to four accused persons implicated by the eye witnesses complainant Lakhan (PW-5) and Chandra Shekar (WP-6) earlier before the police and blamed only rest of the accused persons for the attack on them at the trial.
34. Thus, glaring feature in the evidence can be seen by a mere perusal of the deposition of five material prosecution witnesses, which, in our considered opinion, has rendered their testimony as wholly unreliable. This is a case where it is not possible to disengage the truth from the falsehood and to sieve the grain from the chaff.
35. Truth and falsehood in the instant case are so in inextricably mixed together that it is difficult to separate them. The finding of guilt recorded by the Court below against the present appellants except appellant No.4 Ashok is unsustainable in law and on facts.
36. In view of these circumstances and the evidence discussed above, we are clearly of the view that the CRA No.221 & 293 of 2003 prosecution case against eleven appellants has not been proved beyond reasonable doubt.
37. In the result, Criminal Appeal No.221/2003 filed by appellant Sohan s/o Lal Singh Dhakad and Criminal Appeal No.293/2003 filed by appellant No.1 Pawan Yadav s/o Kanhaiyalal, appellant No.2 Nandu @ Nandkishore s/o Omkarlal Gawli, appellant No.3 Sonu @ Sohan Singh s/o Narain Singh Jhala, appellant No.6 Narsimb s/o Lalji Gawli, appellant No.7 Babu @ Kamal Gawli s/o Ramchand Ghasita, appellant No.8 Laxman s/o Gangaram Gawli, appellant No.9 Bhagat s/o Rajaram Yadav, appellant No.10 Mangal s/o Man Singh Yadav, appellant No.11 Mannu Yadav s/o Kishanlal and appellant No.12 Kannu @ Kanhaiyalal s/o Ambaram Balia succeeds and are allowed. The impugned conviction and sentence in respect of appellant Sohan s/o Lal Singh Dhakad (Criminal Appeal No.221/2003) and appellant No.1 Pawan Yadav s/o Kanhaiyalal, appellant No.2 Nandu @ Nandkishore s/o Omkarlal Gawli, appellant No.3 Sonu @ Sohan Singh s/o Narain Singh Jhala, appellant No.6 Narsimb s/o Lalji Gawli, appellant No.7 Babu @ Kamal Gawli s/o Ramchand Ghasita, appellant No.8 Laxman s/o Gangaram Gawli, appellant No.9 Bhagat s/o Rajaram Yadav, appellant No.10 Mangal s/o Man Singh Yadav, appellant No.11 Mannu Yadav s/o Kishanlal and appellant No.12 Kannu @ Kanhaiyalal s/o Ambaram Balia (Criminal Appeal No.293/2003) are set aside and they are acquitted of the charge under Sections 302/149 and 148 of the Indian Penal Code, 1860.
38. With regard to appellant No.4 Ashok Sarpata s/o Sudama Bhau in Criminal Appeal No.293/2003, his conviction CRA No.221 & 293 of 2003 and sentence is maintained.
39. Appellant No.1 Pawan Yadav s/o Kanhaiyalal, appellant No.6 Narsimb s/o Lalji Gawli, appellant No.8 Laxman s/o Gangaram Gawli, appellant No.9 Bhagat s/o Rajaram Yadav, appellant No.11 Mannu Yadav s/o Kishanlal and appellant No.12 Kannu @ Kanhaiyalal s/o Ambaram Balia in Criminal Appeal No.293/2003 are in custody and they be set at liberty forthwith, if not required in any other case.
40. Appellant Sohan s/o Lal Singh Dhakad in Criminal Appeal No.221/2003 and appellant No.2 Nandu @ Nandkishore s/o Omkarlal Gawli, appellant No.3 Sonu @ Sohan Singh s/o Narain Singh Jhala, appellant No.7 and appellant No.10 Mangal s/o Man Singh Yadav are on bail. Their bail bonds shall stand discharged.
41. Consequently, Criminal Appeal No.221/2003 is allowed and Criminal Appeal No.293/2003 is partly allowed.
(P.K. Jaiswal) (Subhash Kakade)
Judge Judge
pn/ rcp