Madhya Pradesh High Court
Banshilal vs The State Of M.P. on 27 June, 2017
Author: P.K. Jaiswal
Bench: P.K. Jaiswal
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(D. B.: Mr. P.K. Jaiswal & Mr. Virender Singh, J.J.)
Criminal Appeal No.27/2005
Bapulal
V/s
State of Madhya Pradesh
*****
Criminal Appeal No.30/2005
Bhulibai W/o Champalal & Ors.
V/s
State of Madhya Pradesh
*****
Criminal Appeal No.46/2005
Banshilal S/o Bhuraji & Ors.
V/s
State of Madhya Pradesh
*****
Criminal Appeal No.147/2005
Saurambai & Ors.
V/s
State of Madhya Pradesh
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Shri Vivek Singh, learned counsel in Criminal Appeal
No.27/2005 on behalf of appellant - Bapulal and in Criminal Appeal
No.30/2005 on behalf of appellants - Bhulibai, Champalal, Dhulji
and Gulab Singh.
Shri Yogesh purohit, learned counsel in Criminal Appeal
No.46/2005 on behalf of appellants - Banshilal S/o Bhuraji,
Mangilal, Dhannalal @ Dhaniram, Gorilal, Saurambai, Gulabbai,
Gangabai, Prembai and Banshilal S/o Dhulji.
Shri Gopal Hardia, learned counsel is appointed through Legal
Service Authority in Criminal Appeal No.147/2005 on behalf of
appellants - Saurambai, Gulabbai, Gangabai, Prembai and
Bhulibai.
Shri Umesh Gajankush, learned Dy. AG for the respondent/State.
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JUDGMENT
( 27/06/2017) Per P.K. Jaiswal, J.
All the above three criminal appeals have been filed by the appellants therein under Section 374 of the Criminal Procedure Code, against the judgment of conviction dated 23/12/2004, passed by the learned Additional Sessions Judge, Rajgarh(Biaora) in S.T. No.140/2002, wherein the learned trial Court found the accused / appellants - Banshilal S/o Bhuraji, Mangilal, Dhannalal @ Dhaniram, Gorilal, Saurambai, Gulabbai, Gangabai, Prembai, Bhulibai, Champalal, Dhulji, Gulabsingh, Banshilal S/o Dhulji and Bapulal guilty for offence under Sections 323/149 and sentenced them to 6 months RI, under Section 324/149 of IPC sentenced to 9 months RI, under Section 325/149 of IPC sentenced to one year RI with fine of Rs.250/- and in default of payment of fine, to undergo additional RI of 3 months, under Section 302/149 of IPC sentenced to Life Imprisonment with fine of Rs.250/- and, in default of payment of fine to undergo three months additional RI and also under Section 25(1-B) of the Arms Act, 1959.
2. Accused - Banshilal S/o Bhuraji, Champalal, Prembai, Gangabai, Saurambai, Gulabai and Bhulibai were further convicted under Section 147 of IPC and sentenced to 6 months RI and accused Banshilal S/o of Dhulji, Gulabsingh, Gorilal, Dhannalal @ Dhariram, Bapulal and Mangilal were further convicted under Sections 148 of IPC and sentenced to one year RI.
3. Learned trial Court acquitted accused No.14 - Rodilal S/o Hajarilal, accused No. 16 - Biram S/o Ghisalal from the offence under sections 323/149, 324/149, 325/149, 147 and 302/149 of IPC. and accused No. 17 - Jagdish S/o Shambhudayal from offence under Sections 148, 323/149, 324/149, 325/149, 302/149 and 25(1-B) of the Arms Act, 1959.
4. The learned trial Court also acquitted the accused No.1 - Banshilal S/o Dhulya, accused No.2 - Mangilal S/o Bhuraji, accused No.3 - Dhannalal @ Dhaniram S/o Bhuraji, accused No.4
- Gorilal S/o Bhuraji, accused No.12 - Gulabsingh S/o Champalal and accused No.15 - Bapulal S/o Navalsingh from the offence under Section 25(1-B) of the Arms Act, 1959 and convicted and sentenced the present appellants as indicated herein-above.
5. Out of 14 appellants, in all the three appeals (Cri.A. No.27/2005, Cri.A. No.30/2005 & Cri.A. No.46/2005), the jail sentence of Saurambai, Gulabbai, Prembai and Gangabai(reported to be dead) has been suspended by order dated 5/04/2005, passed in Cri.A. No.46/2005.
6. The jail sentence of appellant - Bapulal S/o Naval Singh (in Cri.A. No.27/2005) was also suspended by this Court on 29/07/2016. Rest of the appellants are in jail from the date of impugned judgment dated 23/12/2004.
7. As per prosecution story, on 30/06/2002, at about 10.30 a.m., when complainant - Gopilal(PW5) and his wife Kanchanbai(PW6) were returning from their agriculture field situated at village Shobhapura, which is 18 km far from Industrial Area, Kalipith, Rajgarh, on the way when they reached behind the house of Bhanwarlal(PW4) and were talking to their son Indersingh and Bapulal, at that relevant point of time, accused persons namely Banshilal S/o Bhuraji, Mangilal, Dhannalal @ Dhaniram, Gorilal, Saurambai, Gulabbai, Gangabai, Prembai, Bhulibai, Champalal, Dhulji, Gulabsingh, Banshilal S/o Dhulya, Rodilal, Bapulal, Biram and Jagdish came there armed with farsi, ballam, sword and lathi and started inflicting injuries to them. On seeing this, Dhanibai(PW12) and Sorambai(PW9) came at the place of occurrence to save them, but the accused persons also caused injuries to them. The incident was witnessed by Kamlibai(PW8) and Ramabai(PW11). After causing injuries the accused persons left the place of occurrence. The matter was reported by injured Gopilal(PW5) at Police Station - Industrial Area, Kalipith, District - Rajgarh(Biaora) and Crime No.65/2002 was registered.
8. During investigation, Inquest was prepared vide Ex-P/28 and P/37. The injured Indersingh, Bapulal, Gopilal(PW5), Kanchanbai(PW6), Sorambai(PW9) and Dhanibai(PW12) were taken to the hospital for medical aid, but on the way to hospital, injured Indersingh and Bapulal succumbed to their injuries. As per the hospital authority, injured Indersingh and Bapulal were brought dead. Information of death was given vide Ex-P/26. . Ex-P/4, 4A is the MLC report of injured Gopilal(PW5). Ex-P/5, 5A is the M.L.C. Report of injured Kanchanbai(PW6). Ex-P/6 and Ex-P/7A, 7 is the M.L.C. Report of injured Sorambai(PW9) and Dhanibai(PW12) respectively. The dead body of deceased were sent for postmortem examination. Ex-P/15 & 16 is their postmortem report. After completion of investigation, the charge-sheet was filed. The case was committed by Judicial Magistrate First Class to the Court of Sessions for trial. The learned trial Court after appreciating the police statement of the injured witness and eye-witnesses of the case and the available material evidence, framed charge under Sections 323/149, 324/149 325/149, 302/149, 147, 148 and 25(1-B) of the Arms Act, 1959.
9. The appellants abjured their guilt and stated that they have been falsely implicated by the complainant and claimed to undergo a trial. The prosecution examined 15 witnesses (PW1 to PW15) and exhibited documents (Exhibit P/1 to P/87).
10. As per statement of Dr. Purohit(PW1), who had examined the injured, he in his report submitted that injured Gopilal(PW6) has sustained one incised wound over occipital region of scalp 2 & 1/2 '' x 1'' x bone deep,extensive interior wound on right leg 9'' x 1/2'' x bone deep, one lacerated wound 1'' x 1/4'' x muscle deep, contused swelling on right and left arm and right and left. As per his statement, injured Kanchanbai(PW6) has sustained one lacerated wound on left parietal region of scalp 2 and 1/2 '' x 1/4'' x bonedeep, lacerated wound on right fronto parietal region of scalp 1 and 1/2'' x 1/4'' x bonedeep , reddish contused swelling on left hand 2'' x 1 and 1/2 '', contused swelling on right arm and on left leg. In respect of injured Sorambai(PW9) he has given his report that this witness has sustained reddish contusion on right wrist, 2 and 1/2'' x 2'' on right scapular region and 2'' x 1 and 1/2'' on left sided of back. Injured Dhanibai(PW12) has sustained a lacerated wound of 1/2'' x 1/4'' x muscle deep on left thigh(lateral aspect). He in his statement has deposed that all the injuries of the aforesaid injured persons are caused by hard and blunt object.
11. Dr. R.C. Banshiwal(PW2) has conducted the postmortem of the deceased - Indersingh and Bapulal. He in his statement has deposed that as per postmortem report (Ex-P/15) of deceased Indersingh, he has sustained 10 injuries. Injury No.1, 3, 5a, 8, 9 and 10 are caused by hard and blunt object whereas injury Nos.2, 4, 5b, 6 and 7 are caused by hard and sharp object. He opined that the mode of death was shock as a result of internal and external haemorrhage, multiple injuries and multiple fractures.
12. In respect of deceased Bapulal, as per his postmortem report (Ex-P/16), PW2 has deposed that deceased Bapulal S/o Gopilal has sustained 12 injuries which reads as under :-
1. Incised wound - 3/4'' x 1/2'' left leg with multiple bone deep, Anteriorly 1/3rd fracture over left leg 1/3rd.
2. Incised wound bruise 1'' x 1/2'' vertical bone deep anteriorly 3/4'' x 1/2'' bone deep 1/3 rd anteriorily left leg.
3. Incised wound 3/4'' x 1/2'' bone deep anteriorly one third left leg.
4. incised wound 3/4'' x 1/2'' left arm vertical blend laterally muscle deep.
5. Incised wound 1/2'' x 1/4'' left post lateral .
6. Fracture over blend radius left.
7. Incised wound 1/2'' x 1/2'' over left arm post lateral blend vertical muscle deep.
8. skin cut 1 and 1/2'' x 1/2'' left shoulder oblique.
9. contusion with abrasion 3'' x 1'' left shoulder with arm oblique with abrasion 1/2'' x 1/4''.
10. abrasion 1'' x 3/4'' left shoulder oblique.
11. lacerated wound 2/2'' x 1/2'' bone deep anterior post top of scalp clotted blood plus underneath skin 5'' x 5'' area.
12. lacerated wound 1'' x 1/2'' occipital region of skull. Fracture horizontally from left parietal to right parietal.
13. As per his statement, injury Nos.6, 9, 10, 11 and 12 are caused by hard and blunt object and injury nos. 1, 2, 3, 4, 5, 7 and 8 are caused by hard and sharp object. In his opinion, the mode of death was shock as a result of head injury and multiple injuries. The death of both the deceased was homicidal in nature.
14. The presence of all the appellants at the place of occurrence is not in dispute.
15. Banshilal(PW7) is a hostile witness. Similarly Ramabai(PW11), one of the eye-witness of the case has also not supported the case of the prosecution.
16. As per statement of of injured Gopilal(PW5), Kanchanbai(PW6), Kamlibai(PW8), Sorambai(PW9) and Dhanibai(PW12) on the date of alleged incident, accused No.1 - Banshilal S/o Bhuraji, Saurambai, Gulabbai, Gangabai, Prembai, Bhulibai were armed with lathi, Mangilal, Dhannalal, Gorilal, Gulabsingh, were armed with farsi, accused Dhulji was armed with Ballam, accused Bapual S/o Navalsingh and accused Banshilal S/o Dhulji and accused Champalal were armed with sword and inflicted injuries to injured Gopilal(PW5) and Kanchanbai(PW6), Indersingh(deceased) and Bapual(deceased) by means of the aforesaid weapons, as a result of which, Indersingh and Bapulal sustained grievous injuries and on the way to hospital they succumbed to their injuries.
17. Learned counsel for the appellant has drawn our attention to the statement of injured Gopilal (PW5), Kanchanbai(PW6), Banshilal(PW7), injured - Sorambai(PW9), Rajalbai(PW10), Ramabai(PW11) and Police statements of Gopilal(Ex-D/1), Kanchanbai(Ex-D/2), Kamlibai(Ex-D/3), Sourabh((Ex-D/4), Payalbai(Ex-D/5) and Dhanibai(Ex-D/6) and submitted that there are material contradictions in their statement. They due to previous enmity in respect of of 3 Bigha land, which was going on between the parties from last 10 to 20 years, they have been falsely implicated in the alleged offence. None of the eye-witnesses in their statement has stated about causing any injury by accused Saurambai, Gulabbai, Prembai, Bhulibai, though they were armed with lathi, but no overt act has been attributed to them. On coming to the knowledge about the incident they came at the place of occurrence and the learned trial Court has wrongly convicted them by holding that they also inflicted injury to the deceased and were member of the unlawful assembly and had actively participated in the alleged crime.
18. On the other hand, Shri Umesh Gajankush, learned Public prosecutor supported the judgment of the learned trial Court and submitted that the evidence of the eye-witnesses are of sterling quality.
As per statement of Gopilal(PW5), Kanchanbai(PW6), Sorambai(PW9), eye-witness Kamlibai(PW8) and Dhanibai (PW12), the presence of the present appellants were not doubtful and prays for dismissal of the appeal.
19. We have gone through the evidence of all the material prosecution witnesses Gopilal(PW5), Kanchanbai(PW6), Sorambai(PW9), eye-witness Kamlibai(PW8) and Dhanibai (PW12). and Ramabai(PW11) had witnessed the incident, but PW11 has not supported the prosecution case. As per opinion given by Doctor(PW2), the injury, which was found on the vital part of the body of the deceased was dangerous to life, therefore, in our opinion on the facts of the case the act committed with the knowledge that it is likely to cause death.
20. We ourselves have seen the judgment of the trial Court, which has been passed after proper appreciation of the evidence of eye- witnesses as well as the evidence of doctors and the Investigating Officer, therefore, in our opinion the finding recorded regarding causing injury by hard,sharp and blunt object like sword, Ballam, lathi and farsi, the learned trial Court appears to be correct.
21. From the evidence on record, particularly, the medical evidence, it is clear that the death of Indersingh and Bapulal is homicidal in nature and considering the injuries which are caused to the deceased the case will be that of culpable homicide. From the evidence on record, it is clear that all the material prosecution witnesses have stated in their deposition that it was the accused persons who had inflicted injuries to the deceased by means of farsi, ballam, lathi and sword and there is no reason to disbelieve the evidence of the prosecution witnesses. As per the statement of eye-witnesses, appellant no.5 - Saurambai, appellant no.6 - Gulabbai, appellant no.8
- Prembai and appellant no.9 - Bhulibai, on coming to the knowledge about the incident they came at the place of occurrence. Since both the parties were aggressive, therefore, they started moving their lathi, however, they do not know whether any injury is caused to anyone. None of the eye-witnesses and injured in their statement has stated about causing any injury by appellants no.5 - Saurambai, No.6 - Gulabbai and No.8 - Prembai in Criminal Appeal No.46/2005 and appellant No.1 - Bhulibai in Criminal Appeal No.30/2005 though they were armed with lathi, but no overt act has been attributed to them nor they were member of the unlawful assembly and had actively participated in the alleged crime. On the other hand, each of the material prosecution witnesses have narrated the role of each of the accused namely Banshilal s/o Bhuraji, Mangilal, Dhannalal @ Dhaniram, Gorilal, Champalal, Dhulji, Gulabsingh, Banshilal S/o Dhulji and Bapulal S/o Navalsingh. No doubt an admission is also made to prove that the accused acted in self-defence but the prosecution has successfully proved the case against accused them. From the evidence of prosecution witnesses, as these witnesses have received injuries and it is proved by medical evidence, therefore, their evidence cannot be discarded. All the accused had come with deadly weapons by forming an unlawful assembly. Even the FSL report supports the case of the prosecution.
22. On due consideration of the material evidence available on record and also to the fact that at the time of incident, appellants were inflicting injuries by means of sword, lathi, ballam and farsi, over the deceased and complainant, it is not the case of the appellants that they have been falsely implicated in the alleged offence or there is no evidence against them. Looking to the evidence on record and the circumstances, as aforesaid, we are not inclined to disturb the finding of the trial Court holding accused Bapulal S/o Naval Singh(in Cri.A. No.27/2005), accused Champalal, Dhulji and Gulabsingh(in Cri.A. No.30/2005) and Banshilal S/o Bhuraji, Mangilal, Dhannalal @ Dhaniram, Gorilal, Bnashilal S/o Dhulji(in Cri.A. No.46/2005) guilty of offence punishable under Sections, 147, 148, 323/149, 324/149, 325/149 and 302/149 of IPC and under Section 25(1-B) of the Arms Act, 1959 and we confirm it.
23. So far as accused appellants Saurambai, Prembai, Gulabbai and Bhulibai are concerned, no overt act has been attributed to them and none of the eye-witnesses in their statement has made allegation of causing injury by them.
24. We have also gone through the evidence on record and the impugned judgment. Since accused no.7 Gangabai W/o Mangilal has expired, during pendency of this appeal, this appeal against her has been abated. So far as other accused persons are concerned, from the evidence on record, it is clear that at the most the injury caused by the accused to the deceased was caused by the hard and blunt object and it is rightly believed that the accused were guilty of the alleged offence.
25. In view of this, we find that all the criminal appeals in respect of accused Bapualal(in Cri.A. No.27/2005), accused Champalal, Dhulji and Gulabsingh(in Crio.A. No.30/2005) and accused Banshilal S/o Bhuraji, Mangilal, Dhannalal @ Dhaniram, Gorilal, and Banshilal S/o Dhulji (in Cri.A. No.46/2005) sans merit and deserves to be dismissed as their conviction has been proved and they found guilty under Sections 323/149, 324/149, 325/149, 147, 148 and 302/149 of IPC and under Section 25(1-B) of Arms Act.
26. In respect of accused Saurambai, Gulabbai, Prembai, and Bhulibai are concerned, none of the eye-witnesses in their statement has made any allegation of causing injury to the deceased as well as the injured nor any overt act has been attributed to them, their conviction for offence under Sections 323/149, 324/149, 325/149, 302/149, 147 and 148 of IPC are hereby set aside and they are acquitted of the alleged offence. They are on bail. Their bail bond shall stand discharged.
27. For the foregoing reasons, the impugned judgments and orders dated 23/12/2004, passed by learned Additional Sessions Judge, Rajgarh(Biaora) in S.T. No.140/2002 are hereby confirmed against Bapulal(in Cri.A. No.27/2005), accused Champalal, Dhulji and Gulabsingh(in Cri.A. No.30/2005) and accused Banshilal S/o Bhuraji, Mangilal, Dhannalal @ Dhaniram, Gorilal, and Banshilal S/o Dhulji (in Cri.A. No.46/2005). Bail bonds, if any, of the accused stand cancelled. Since The jail sentence of appellant - Bapulal S/o Naval Singh (in Cri.A. No.27/2005) was also suspended by this Court on 29/07/2016 and he is on bail, he shall surrender before the jail authorities within a period of twelve weeks from today to serve out the remaining period of sentence. Record and proceedings, if lying here, be sent to the Court below forthwith.
(P.K. Jaiswal) (Virender Singh)
Judge Judge
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