Madhya Pradesh High Court
Kalu Bhilala vs State Of M.P. on 11 August, 2021
Author: Vivek Rusia
1 CRA Nos.862-916/2008
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
DIVISION BENCH: HON'BLE MR. JUSTICE VIVEK RUSIA
HON'BLE MR. JUSTICE SHAILENDRA SHUKLA
CRIMINAL APPEAL NO.862 OF 2008
(1) Mona S/o Jasala Bhilala
Age 50 years, Occupation - Agriculturist
(2) Virendrasingh S/o Mona Bhilala
Age 23 years, Occupation - Agriculturist
Both resident of Gram Mavadipura Dehar,
Tehsil - Kukshi, District - Dhar (MP)
....Appellants
Versus
The State of Madhya Pradesh
Through Police-Station - Kukshi
District - Dhar (MP)
.....Respondent
And
CRIMINAL APPEAL NO.916 OF 2008
Kalu S/o Mona Bhilala
Age 33 years, Occupation - Agriculturist
Resident of Gram Mavadipura Dehar,
Tehsil - Kukshi, District - Dhar (MP)
....Appellant
Versus
The State of Madhya Pradesh
Through Police-Station - Kukshi
District - Dhar (MP)
....Respondent
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Shri Akash Rathi, learned counsel for the appellants No.1 and 2 in
CRA No.862 of 2008.
Shri Sanjay Sharma, learned counsel for the appellant Kalu in
CRA No.916 of 2008.
Shri Amit Singh Sisodia, learned counsel for the
respondent /State of Madhya Pradesh.
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2 CRA Nos.862-916/2008
JUDGMENT
(Delivered on 11th day of August 2021)
Per Shailendra Shukla, J.
This appeal has been preferred by the appellants
under Section 374 of Code of Criminal Procedure, 1973
against the judgment of conviction and sentence dated
02.07.2008 passed by the Second Additional Sessions
Judge (Fast Track Court), Kukshi, District - Dhar (MP) in
Session Trial No.234/2007, whereby they have been
convicted and sentenced as under:-
Conviction Sentence
Section & Act Imprisonment Fine Amount Imprisonment
in lieu of fine
302/34 of IPC Life Rs.1000/- 1000/- 6 months RI
Imprisonment each each
2. The facts of the case in nutshell are that on
19.06.2007, the complainant Khumsingh had lodged a
complaint in Police-Station - Kukshi, District - Dhar (MP)
alleging that at about 10:00 am, when he along with his
brother and father (deceased Sekadia) had gone to plough
the Government land which is in possession of his niece
Surajbai, his uncle accused/appellant Mona along with his
sons namely; Kalu and Virendra (appellants) came armed
with sticks and Axe on the field and insisted that now they
will plough the said land. Khumsingh, however, continued to
plough the field, consequent to which his father was
assaulted with sticks by appellants Mona and Kalu and
appellant Virendra had assaulted him with Axe. Khumsingh
and his brother namely; Rumal came running to save his
father, but the accused continued their assault and
thereafter they fled from the spot. The father (Sekadia) died
on the spot and later on, the relatives of deceased had
arrived at the spot. Report was lodged after the brother of
Khumsingh namely; Jaymal came from Kukshi. FIR was
lodged at Crime No.55/07 and investigation ensued. The
dead body's panchayatnama was executed and spot map
was also prepared. The body was sent to postmortem and
Patwari drew the trace map. Thereafter, all the accused
persons were arrested and on the basis of their
memorandum, axe and sticks were seized. The seized
items were sent to FSL examination and after completion of
investigation, charge-sheet was filed in the matter.
3. After committal of proceedings, the matter was sent to
Second Additional Sessions Judge (FTC) for trial. Thereafter
charges were framed against all the accused persons under
Section 302/34 of IPC. They abjured their guilt and claimed to
be falsely implicated in the aforesaid offence.
4. The prosecution has examined nine witnesses in support,
whereas no defence witness was examined. All the accused
persons were convicted and sentenced, as described earlier.
5. In the appeal filed by the appellants, grounds taken were
that no independent witnesses have been examined by the
prosecution, whereas there were number of agricultural fields
in the vicinity of spot and it was not possible for the neighbours
that they were unaware of the incident, that FIR has been
lodged very belatedly and that there is no satisfactory
explanation in respect of delayed lodging of FIR, that there are
number of contradictions and omissions in the statements of
eye-witnesses and therefore the appeals have been sought to
be allowed and appellants be acquitted from the aforesaid
charges.
6. Learned counsel for the appellant Virendra Singh has
adopted the same submissions which have been adopted by
learned counsel in respect of accused Mona and Kalu.
7. The main question before us is whether in view of the
grounds contained in the appeal memo, judgment of conviction
of appellants deserves to be set-aside and the appellants could
be acquitted from the charges, as aforesaid ?
8. Khumsingh (PW/4) is the son of deceased Sekadia who
had lodged an FIR (Ex.P/4). Suresh Balraj (PW/8) states that
he was the Sub-Station Incharge of Police Station-Nisarpur
Chowki on 19.06.2007, where Khumsingh had lodged a report
which was registered at Crime No.55/2007. The signatures of
the witness is on 'B to B' part on Ex.P/4.
9. S.S. Solanki (PW/3) states that he was ASI in Police
Station Kukshi on 19.06.2007 and report (Ex.P/4) was
instituted in police station Kukshi as Ex.P/5 after receiving the
same from sub-station Nisarpur.
10. Suresh Balraj (PW/8) states that after lodging of report,
he went to the spot and prepared the spot map (Ex.P/6) and
issued 'Safina Form' which is Ex.P/17, prepared dead body's
panchayatnama Ex.P/7, collected blood soaked soil and
ordinary soil from the spot which is Ex.P/18. The dead body
was sent to Community Health Centre, Nisarpur for
postmortem.
11. Doctor G.S. Baghel (PW/1) has stated that he had
conducted the postmortem of deceased Sekdia on 19.06.2007
while he was posted as Medical Officer at Community Health
Centre, Nisarpur. On external examination, following injuries
were found in the body which are as follows:
(i) incised wound 3x1x1/2 inch above left eye.
(ii) incised wound on left side of the neck 3x2x2 inch.
(iii) abrasion on the right side of waist 2x1x1/4x1/4 inch.
(iv) incised wound on the left side of eye 1/2x1/2x1/4 inch.
(v) abrasion behind left shoulder 4x1/4x1/4 inch.
(vi) stab wound in the middle of lower limb 1/2x1/2x4x1/2
inch.
On internal examination, it was found that there was a
fracture beneath the injury on left eye, subdural membrane was
found to be injured and there was bleeding inside the brain and
there were injuries on the spinal cord and spinal vertebrae. The
left frontal bone was found to be fractured. The major vessels
of the throat were also cut. The injuries were caused due to
sharp and hard object and also by hard and blunt objects. The
cause of death was haemorrhagic shock due to blood loss and
the death had occurred 6 - 12 hours before the postmortem.
The postmortem report Ex.P/2 carries his signatures on 'A to A'
part. The Doctor has not been subjected to much cross-
examination. Hence, it is proved that Sekadia had died due to
injuries caused by hard and sharp object as also by hard and
blunt object. Although the Doctor, in so many words, has not
stated that the death was a result of culpable homicide,
however, in view of the injuries found on the deceased with
different kinds of objects with fatal injuries on the vital parts of
body such as brain, the only conclusion that can be drawn is
that it was a case of culpable homicide. Now the eye-witness
account shall be considered.
12. Khumsingh (PW/4) has stated that on the date of incident
his father Sekdia had gone to the agricultural field for ploughing
the field at about 9:00 am in the morning, he heard shrieks of
his father saying that he had been hit. Hearing the cries of his
father, the witness along with his brother Rumal ran over and
arrived at the spot and saw the accused/appellants assaulting
his father. The appellant Mona was armed with a stick and
appellant Virendra was assaulting his father with axe. His
father died on the spot. The family members Suman, Manglibai
and Meera rushed to the spot and the accused fled from the
spot. As per the witness, his brother Jaymal had gone to
Kukshi and when he came back, they proceeded for lodging
the report which is Ex.P/4. The motive for the assault is that the
accused themselves wanted to plough the field.
13. The witness Khumsingh (PW/4) in the report/FIR (Ex.P/4)
has stated that at around 10:00 am, he along with his brother
and father Sekdia had gone to the agricultural field of Surajbai
which was in-fact the government land and despite the protest
by accused/appellants, Khumsingh (PW/4) continued to plough
the field. However, in cross-examination in para-4 he states
that at the time of incident, he was in the other field and his
father and brother were working in different fields. In Ex.P/4
(FIR) he states that all the three were set out from the house to
the agricultural fields together, however, in cross-examination
in para 4 he states that his father moved out of the house first
in bullock-cart and 5-10 minutes later, the witness set out for
the agricultural field and following him was his brother Rumal.
In cross-examination, he further admits that the path traversed
by his father to the agricultural field was on the left hand side,
whereas the complainant went through a path which was in the
right hand side. He further states that even he and his brother
were not working in the same field but were in the different
fields. He states that he and his brother Rumal had gone to
work in different agricultural fields and had gone empty
handed, whereas he states that at the time of incident he was
ploughing the field and thus, there are number of contradictions
in the statements of Khumsingh (PW/4). Khumsingh (PW/4) in
para 5 has stated that the field of Surajbai where his father was
working is surrounded by hillocks, meaning thereby there was
a hillock covering the field where the deceased was ploughing
and the field where Khumsingh (PW/4) was working. While in
police report (Ex.P/4), Khumsingh (PW/4) has stated that at the
time of incident he was ploughing the field but in para 7 of
cross-examination he states that he was collecting the thorns
which were spread on the field. He states that he had prepared
the field after ploughing the field but admits that after ploughing
the field there is no need to pick up the thorns.
14. Learned counsel for the appellants submitted that it is
only after cleaning the field that the same is ploughed and not
vice-versa. There is substance in the aforesaid submissions of
learned counsel for the appellants. The witness states that he
had collected the thorns in the heap of 2 -3 feet, but states that
these thorns were collected barely in 10 minutes denying the
suggestion that in collecting so many thorns at-least half the
day is required. It does look unnatural that an agricultural field
would first be ploughed and then thorns were collected and
within ten minutes a heap of thorns would be gathered. Even
for a layman, it would be appropriate to first clear the field of
thorns and then plough the same.
15. In examination-in-chief, the witness Khumsingh (PW/4)
states that he had seen accused/appellant Mona causing
injuries with stick and accused/appellant Virendra had caused
injury with axe but in cross-examination, in para-8 he states
that he does not speak about Mona causing injuries to Sekdia
but states that only Kalu and Virendra had inflicted injuries to
the deceased (Sekadia). While in FIR (Ex.P/4), Khumsingh
(PW/4) has stated that his father (Sekdia) was assaulted infront
of him, while he was ploughing the field but in cross-
examination, he has stated that he was working in another field
and he had seen the accused assaulting his father from the
distance and when the witness had arrived at the spot, the
accused fled from the spot.
16. The witness Khumsingh (PW/4) admits that there are as
many as 50 houses near to his house but despite his shouting,
no one came for rescue and no one had arrived at the spot of
incident. He further admits that there are number of agricultural
fields surrounding the spot but states that there was no one
present in such agricultural fields. When asked as to why the
report was not lodged immediately after the incident, the
witness Khumsingh (PW/4) states that he along with his family
members were sitting besides his father's dead body thinking
about the next steps to be taken and only when his brother
Jaymal and neighbours came to the spot, they went to the
police station for lodging the report. He states that Jaymal was
not intimated by any one and Jaymal came to the spot himself
directly from Kukshi, Dhar. He then again states that Jaymal
had first arrived at his house and coming to know about the
incident of his father, he then straightaway arrived at the spot.
17. Jaymal (PW/6) on the other hand states that when he
arrived from Kukshi on the date of incident to the house, his
brother came and told him about the incident, whereas both the
brothers i.e. Khumsingh (PW/4) and Rumalsingh (PW/9) have
stated that they have told Jaymal (PW/6) about the incident on
the spot of incident.
18. Contrary to the statements in examination-in-chief that he
was informed by his brother in cross-examination, Jaymal
(PW/6) states that when he arrived from Kukshi, he saw
Sumanbai and other ladies were doing the household chores
but immediately thereafter states that Sumanbai had rushed
over to the agricultural field and had informed him.
19. Thus, there are inconsistent statements in the evidence
of Jaymal (PW/6) as to how he came to know about the
incident.
20. Rumalsingh (PW/9) is the brother of Khumsingh (PW/4).
He states that his father had gone to the agricultural field to
plough the field at 9:00 am which was followed by Khumsingh
who went to work on other field and five minutes later the
witness also left to work on the same field where his brother
was working. He has stated that his brother had gone to "cs;M+h
dh vkM+ okyk [ksr". He states that he was also picking up the
thorns from the field and on hearing cries of his father,
Khumsingh (PW/4) had arrived at the spot followed by other
witnesses and he saw accused running from the spot. This
witness states that he saw accused/appellants Kalu and
Virendra holding an axe with them. There were number of
injuries on the body of his father. Thus, there are
inconsistencies in the statement of Khumsingh (PW/4) stating
that accused/appellant Kalu wielding a stick and the witness
Rumalsingh (PW/9) states that Kalu was holding an axe.
21. In cross-examination in para 4 Rumalsingh (PW/9) states
that his brother was ploughing the field after collecting the
thorns. He then makes contrary statements stating that first the
field is ploughed followed by collection of thorns. He then again
changes his stance and states that thorns are first picked and
then field is ploughed. Thus, the evidence of this witness is
shaky in this regard.
22. Rumalsingh (PW/9) states that the field in which he was
working was on the one side of hillock and admits that there
are hillocks between agricultural field where his father was
working and the agricultural field where he was working. He
admits that there are different paths from his house for going to
his father's field and for his own field.
23. Contrary to the statements of Khumsingh (PW/4) who
has stated that he was picking up the thorns at the time of
incident, Rumalsingh (PW/9) states that Khumsingh was
ploughing the field at the time of incident. He states that his
brother had taken the plough machine from home for ploughing
the field whereas Khumsingh (PW/4) has stated that he and his
brother had gone to the field empty handed. While Rumalsingh
(PW/9) in examination-in-chief states that at the time of
incident, he and his brother were working together in the field,
Khumsingh (PW/4) states that his brother was working half a
kilometer away from the place where the witness was working.
He states that he had arrived at the spot of incident 10 - 15
minutes after his brother had arrived and it took about 10 - 15
minutes for arriving at the spot from his house to the spot of
incident and he saw the accused/appellants fleeing from the
spot. He states that his brother had reached the spot 20
minutes earlier.
24. The witness Khumsingh (PW/4) in para 9 has further
stated that when accused/appellants saw the witness coming
they fled from the spot, meaning thereby that the accused had
fled from the spot on seeing Khumsingh (PW/4). Thus, the
accused had already fled from the spot 20 minutes before
Rumalsingh (PW/9) had arrived because the witness had
arrived at the spot 20 minutes after his brother had arrived.
25. In para 15, Khumsingh (PW/4) has stated that before he
could arrive near the spot, the accused had already fled. Thus,
one can see that there are not only contradictions in FIR
(Ex.P/4) lodged by Khumsingh (PW/4) and the evidence of
Khumsingh but there are mutual contradictions in the
statements of Khumsingh (PW/4) and his brother Rumalsingh
(PW/9). Hence both these witnesses are unreliable witnesses.
There is also inconsistency in the statements of Jaymal (PW/6)
as to who had informed him about the incident. It is also
unnatural that Khumsingh (PW/4) and Rumalsingh (PW/9) had
to wait for their brother Jaymal (PW/6) before setting out for
lodging the report when admittedly there were number of
conveyances and modes of transport were available, as
admitted by Khumsingh (PW/4) in para 13.
26. The Investigating Officer Shri Suresh Balraj (PW/8) has
although recovered the weapons from the accused persons
and on the basis of their memorandum as per Ex.P/11 to
Ex.P/16 and the seized weapons have also been sent to FSL
examination vide draft letter Ex.P/20 and Ex.P/21, but there is
no FSL report exhibited and placed on record. The Presiding
Officer has also not made an endeavour to obtain the FSL
report. The only eye-witnesses are the immediate relatives of
the deceased Sekadia and their evidence is also replete with
inconsistencies and contradictions. The prosecution has thus
not been able to prove its case beyond reasonable doubt and it
appears that the Presiding Officer has not given due
consideration to the aforesaid contradictions and omissions
which has rendered the prosecution story unsustainable. The
finding of conviction of appellants by the trial Court is
erroneous and is hereby set-aside. The appellants are
acquitted from the charges framed under Section 302/34 of
IPC. The appellants, if are in jail, be set free forthwith, if they
are not required in any other case.
27. A copy of this judgment along with record of trial Court be
sent to the trial Court for compliance.
28. The disposal of the property shall be as per the order of
trial Court.
The signed order of this case be kept in the file of
Criminal Appeal No.862 of 2008 and a copy thereof be placed
in the connected Criminal Appeal No.916 of 2008.
(VIVEK RUSIA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Arun/-
Digitally signed by ARUN
NAIR
Date: 2021.08.11 17:53:15
+05'30'
