Kashiram @ Kashya & 5 Ors. vs State Of M.P.
2021 Latest Caselaw 8277 MP

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HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
DIVISION BENCH: HON'BLE SHRI JUSTICE VIVEK RUSIA
 & HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH

                    CRIMINAL APPEAL No.509/2008

Appellants:              1.Kashiram @ Kashya s/o
(Accused in jail)        Richiya Bhilala, Age 25 years,

                         2.Richiya s/o Makna Bhilala
                         Age 40 years

                         3.Ratu @ Ratansingh s/o Navliya
                         Bhilala, Age 45 years,

                         4.Makna s/o Patliya Bhilala
                         Age 55 years

                         5.Varda s/o Jursingh Bhilala
                         Age 20 years

                         6.Hardiya s/o Ratu @ Ratansingh Bhilala
                         Age 20 years
                         All R/o Gram Chichvanya
                         police station Dahi, district Dhar

                                Versus

Respondent:              State of M.P through
                         police station Dahi, district Dhar M.P

            Ms. Sonali Gupta learned counsel for the appellants.
            Mr. Amit Singh Sisodia, learned Government
            Advocate for the State.


                          JUDGMENT

(Delivered on 06.12.2021) Per Vivek Rusia, J:

Appellants have filed this appeal being aggrieved by the judgment dated 28.03.2008 passed by IInd A.S.J (Fast Track), Kukshi, district Dhar whereby they have been convicted under section 302/149 I.P.C and sentenced to undergo LI with a fine of Rs.100-100/- (one- month additional RI in default of payment of fine) and also under

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section 447 I.P.C and sentenced to 6-6 months RI (in default of payment of fine further RI for one month) respectively. The prosecution story:-

2. On 29.6.2007at 11.00 a.m Ramsingh, his son Bhangia, his daughter-in-law Smt. Saikibai and daughter Ku.Nanbai all r/o village Chichvanya were working on their agricultural field known as Neem wala khet. At that time all the accused came there forming an unlawful assembly. Richiya was carrying an axe and bow and arrow, Kashiram was carrying a bow, Ratansingh was carrying Daria and Hardia was carrying an axe. They were complaining that why they are not being permitted to collect mowve ki doli. Ramsingh replied that if they are permitted to collect the doli then this would destroy their crops. They all have started assaulting Ramsingh with a common intention to kill by means of axe, dharia, bow and arrow. Ramsingh (the deceased No.1) fell there and Bhangiya became afraid ran towards the hills. All chased him and assaulted him also by means of arms and Bhangia also died there. At that time Chhagan PW/7 and Bishan PW/6 were also working on their agricultural field and witnessed the incident. Saikibai w/o Bhangiya (the deceased No.2) ran towards Gram Vasnali and informed the incident to Ramesh s/o Ramsingh. Thereafter both went to police station and lodged an FIR vide Ex.P/2 and the death information was also lodged by Saikibai vide Ex.P/35.

3. After registration of FIR, the police reached the spot in the late- night and that was a rainy day hence prepared Naksha Panchayatnama and issued inquest form Ex.P/31 & P/32 for preparation of Naksha Panchayatnama on the next day. In presence of witnesses two panchayatnamas were drawn vide Ex.P/33 and P/34 of Ramsingh and Bhangia. Prima facie, the reason for both deaths was found to be injuries on their person, therefore, both the dead bodies were sent for postmortem vide letter Ex.P/14 & P/19. The postmortem of the deceased-Bhangia was carried out on 30.6.2007 at 11.00 hrs. and postmortem of the deceased-Ramsingh was carried out at 12.30 the

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same day vide Ex.P/21. Both the deaths were found to be homicidal due to the antemortem injuries caused within 24 hours.

4. During investigation police has collected blood-soaked soil, plain soil, blood-stained stones vide Ex.P/29 P/30. The Patwari has drawn a spot map Ex.P/36. The statement of Saikibai PW/5, Nanbai PW/8, Chhagan PW/7, Bishan PW/6, Ramesh PW/9 were recorded.

5. The police arrested all the six accused and recovered the arms on their disclosure vide seizure memo Ex.P/12 to P/18. By sending the arms a query was sought from the doctor and who opined vide Ex.P/22 that the injuries could have been caused by the seized arms. All the seized articles were sent to the FSL for examination but no report was sent to the court.

6. Upon completing the investigation, charge sheet was filed before the JMFC Kukshi against all 6 accused / the appellants. The trial was committed to the Sessions Court. The learned Sessions Judge framed the charges and read them over to the appellants which they denied and pleaded for trial.

7. In order to prove the charges against the appellants the prosecution has examined ten witnesses and filed 36 documents as Ex.P/1 to P/36. In defence, the accused did not examine any witnesses.

8. After evaluating the evidence that came on record all the appellants have been convicted and sentenced as stated above, hence this appeal.

9. At the outset learned counsel for the appellants submits that during pendency of this appeal appellant No.3 Ritu @ Ratansingh expired on 16.02.2018, hence his appeal stands abated. Submissions of the appellants' counsel

10. Ms. Sonali Gupta, learned counsel for the appellants submitted that the incident was said to have taken place at 11.00 a.m in the morning on 29.6.2007. The police station is only 10 kms. away but FIR was lodged at 6.00 p.m. Saikiabai instead of going to the police station has gone to another village Vasmali. She ought to have taken

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both the injured to the hospital for treatment, therefore, the conduct of Saikibai is unnatural which makes her evidence untrustworthy. It is further submitted that in the spot map only the dead body of Ramsingh has been mentioned. There is no spot map of the dead body of Bhangia that has been drawn. It is further submitted that Ramsingh was a known criminal of that area, he had a number of enemies and somebody committed the cold-blooded murder of Ramsingh and his son but in order to solve the case, the police have falsely implicated the appellants on the basis of the petty dispute with Ramsingh. There are various omissions and contradictions in the statements of Saikibai in respect of carrying of arms by the appellants. The alleged motive for this double murder was also not grave or serious for which the appellants had to murder Ramsingh and his son, hence the appellants are entitled to acquittal.

Submissions of the learned public prosecutor

11. Shri Amit Singh Sisodiya learned Govt. Advocate appearing for the State has supported the impugned judgment passed by the learned Sessions, Judge. He has argued that the appellants have rightly been convicted on the basis of the testimony of the witnesses Saikibai, Bisan, Chhagan, Nanbai PW/5 to PW/8. There is no reason to disbelieve this ocular evidence which has a corroboration with the injuries sustained by the deceased, hence no interference is called for because the minor omissions and contradictions are liable to be ignored as these witnesses belong to Bhil community and have a rural background, hence prays for dismissal of the appeal.

We have heard learned counsel for the parties and perused the record.

Appreciation of facts and grounds: -

12. So far, the nature of the death of Ramsingh and Bhangia are concerned Dr Kamlesh Devda (PW/3) conducted their autopsy. First, he examined the dead body of deceased Bhangia and found five incised wounds caused by hard and sharp objects. Thereafter he examined the dead body of late Ramsingh and found as many as eight

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deep incised wounds said to have been caused by a sharp and hard object. According to him, both the deceased died within 24 hours. He has also admitted the query report given by him. There is a detailed cross-examination of the doctor in order to establish that the injuries were not caused by the arms seized by the police but in our considered opinion the death of Ramsingh and Mangia is not natural but they died because of the injuries sustained by them, hence the death is homicidal in nature.

According to the appellants, they have been falsely implicated in the case. They have not committed the offence. The arms and weapons were not produced before the court. There is no FSL report to confirm the blood of the deceased on the weapon. It is further submitted that the spot is near the residential area but no local residents were examined by the police. There is a contradiction in the statement of the witnesses in respect of the timing of the total fight.

13. So far the delay in lodging the FIR is concerned, according to PW/5 after the said incident she called the neighbours Bisanbaba & Munna but they were not in the house. She said that Sarpanch was not available, hence she ran towards the village Vasnali and narrated the story to Ramesh s/o Ramsingh and thereafter they came to the police station and lodged the report. She witnessed the murder of her husband and father-in-law and no one in the village was ready to help her, hence she had to go to another village to inform the incident to Ramesh s/o Ramsingh and thereafter they lodged the report, therefore, the delay in lodging the FIR has validly been explained by her which does not make the FIR doubtful.

14. As per the FIR, Ramsingh along with his son, daughter-in-law and daughter were working in the agricultural field, at that time Richiya Bbhilala, Kashiram, Ratansingh, Hardia, Harda came there armed with weapons. Richiya was having an axe and arrow and bow, Kashiram was having a bow, Ratansingh was having a Daria, Hardia was having an axe and started abusing her father-in-law Ramsingh. After some altercation, with a common intention, they started

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assaulting him and Ramsingh fell in the field. Late Bhangia became afraid and ran towards the hill. All of them chased him and assaulted him by means of weapons hence both died on the spot. Her daughter Nankibai and Chhagan witnessed the incident but they were terrified and could not intervene. The prosecution has examined Saikibai as PW/5 and she has stated that Richiya was having an axe, Kashiram was having a bow, Hardia was having Daria, Hardia was having an axe and Kashiram was having a bow. So far Varda is concerned he was having a stone and all have started assaulting Ramsingh. They have crushed his head by stone but this fact is missing in the FIR. In her 161 statement, she did not state about the stone or stick in the hands of the appellants. According to her, Richiya was carrying an axe and bow and arrow. Kashiram was having a bow. Rathu was carrying Daria and Hardia was carrying an axe but after a conversation with Ramsingh they started assaulting him by stick, dharia and axe. She and her daughter ran towards the house. Thereafter Ramsingh fell on the spot and Bhangia ran towards the hill. The accused persons followed him and assaulted due to which he died. When she ran towards the house then how did she come to know that Bhangia ran towards the hill and died? She did not return to the spot as straightway ran towards the house of Ramesh and from there went to the police station. It is also to be noticed that when she ran from the spot then how did she come to know that Ramsingh and Bhangia both were killed as she did return to the spot after reaching the police. It was expected from her and her daughter that after the incident, they should have come back to the spot to take both the injured persons to the hospital. Instead, she ran towards another village, her presence in the place of crime becomes doubtful that it making her untrustworthy.

15. In the postmortem, no injury was found by means of lathi. All the injuries were said to have been caused by sharp and hard objects, therefore, there are no corroboration injuries with medical evidence and ocular evidence.

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16. Bishan PW/6 who is the brother of the deceased Ramsingh has deposed that he was working on the agricultural field between 10 to 11 a.m and the deceased Ramsing and Bhongia were working on the agricultural field called Neemwala kheth . He saw the appellants assaulting Ramsingh and Bhangia by means of stone and stick, thereafter they went to their houses. Accordingly to him, Ramsing and Bhaingiya died on the spot, which is against the spot map and the prosecution story. He went to the police station along with Saikibai in the evening. Being an elder brother he ought to have called the help or police immediately. In cross-examination he has admitted that neither Saykiya Bai nor he tried to save Ramsingh even they did not tell the appellants not to kill Ramsing and Bhangiya. The conduct of the Bishan was unnatural making him an unreliable witness.

17. Chhagan another eyewitness P.W.- 7 has turned hostile and he did not support the prosecution case. According to him also dead bodies of Ramsingh and Bhangiya were lying in the agriculture field which is not the prosecution story.

18. Ku Nanbai PW/8 who is the daughter of the deceased Ramsingh has stated that all the six accused persons came to the agricultural field and assaulted the father by means of stones. Richu assaulted Ramsing by Axe and Kshiram has assaulted Ramsing by Dhariya and others with stones. She does not say anything about the murder of her brother Bhangiya hence there is contradiction in her statement. Hence, her presence on the spot becomes doubtful. According to her, the incident continued for two hours but she could not explain the period by comparing the period of smoking of one bidi ( cigarette ). In cross- examination, she states that police came at 1:30-2:00 on a call by Kaka Ramesh. Upon being asked by the court she has answered that Chagan has informed about the incident and thereafter all went there.

19. Ramesh s/o Ramsingh (PW/9) is a hearsay witness. According to him, Sayki bai came to his house weeping and informed that the appellants have killed Ramsings and Bhangiya. They went to Villege Dahi and lodged the FIR. According to him, police reached the spot at

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7:00 and other witnesses are telling lie. He admits that 10-12 days ago there was a fight between his father and the appellants. This statement falsifies the entire testimony of Saikiya bai P.W.-1.

20. The investigation was carried out by Kushalsingh Rawat, ASI (PW/10). He appeared in the trial court without the Police Case Dairy. He has admitted that he prepared the spot map in respect of the dead body of Ramsingh and another map of the location of the dead body of Bhangiya but did not file. According to him, he reached the spot on the next day and drew a spot map. He has also admitted that the recording of Marg before registration of FIR is a must, but he has directly registered an FIR. A suggestion was given that the age of Makhna as 75 years and he was not having clear vision. He has mentioned the age of Makhna as 55 years as per disclosure and on assumption. Co- accused Richia was his son and his son has mentioned his age as 40 years and the age of son of Richia i.e. Kashia is mentioned as 25 years. There cannot be a difference of 15 years between the age of father and son i.e. Makhna and Richia. To prove the age of Makhna the prosecution has examined Shobharam who brought the voter list of ward no.14 of the year 2004-05 in which the age of Makhna is written as 67 years. Hence, at the time of offence Makhna was aged between 70-75 years which creates doubt over his involvement in the crime.

21. There are serious lapses in respect of the investigation. The spot map after the recovery of Bhangia has not been drawn. No blood stain was found in the arm recovered from the accused. They were sent for FSL but no report has been obtained during the trial. Distance between two agricultural fields i.e. Neemwala kheth and the place where the dead body of Bhongia was found because the survey numbers are totally different i.e. survey no.192/2 and 195 respectively. The spot is situated near the residential area but no other witnesses were examined.

22. Initially, in the FIR there was no mention that Makhna and Lakhan were carrying lathi and in the court statement, it has been stated that the head of Ramsingh was crushed by pelting stone. Nanbai

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has also stated that the accused persons have thrown 15 to 20 stones but on the spot, the police did recover only 4-5 stones. There is no FSL report to establish that it was human blood. Both the dead bodies remained in the respective places from 11:00 am till the next day 10 a.m. None of the witnesses reached the spot after the incident to collect the dead body to verify whether they are alive or not. The Investigation Officer also carried out the investigation the next day despite recording the FIR at 8. The whole day and night the two dead bodies remained there unattended. All this conduct makes the witnesses untrustworthy even their presence on the spot becomes doubtful. Even otherwise, the dispute in respect of the collection of dolly is not such a serious dispute for which the appellants have committed double murder, hence the motive established by the prosecution does not inspire our confidence. There is a contradiction in the statement of the witnesses in respect of weapon carried by these appellants.

23. In view of the above discussion, the prosecution has failed to establish the guilt of the appellants beyond a reasonable doubt, hence we are unable to uphold their conviction and sentence awarded by the learned Additional Session Judge.

24. Hence the judgment dated 28.03.2008 passed by IInd A.S.J (Fast Track), Kukshi, district Dhar whereby the appellants been convicted under section 302/149 I.P.C. and sentenced to undergo RI with fine of Rs.100-100/- (one-month additional RI in default of payment of fine) and also under section 447 I.P.C. and sentenced to 6-6 months RI (in default of payment of fine further RI for one month) respectively are hereby set aside.

25. The appellants be released from jail, if they are not required in any other criminal case. Fine amount, if recovered, be returned to them. Record of the trial court be sent back with the copy of this judgment.

              (VIVEK RUSIA)               (SATYENDRA KUMAR SINGH)
                JUDGE                                   JUDGE
hk/
      Digitally signed by HARI KUMAR C
      G NAIR
      Date: 2021.12.06 17:27:09 +05'30'