Madhya Pradesh High Court
Indu @ Indrapal Singh vs The State Of Madhya Pradesh on 28 July, 2021
Author: Atul Sreedharan
1
Cr.A.No.146-2009
HIGH COURT OF MADHYA PRADESH AT JABALPUR
CRIMINAL APPEAL NO.146/2009
Indu @ Indrapal Singh and another........................... Appellants
Versus
The State of Madhya Pradesh.................................... Respondent
For the appellant No.1 : Mr.Vikash Mahawar , Advocate
For the appellant No.2 : Mr.L.N. Sakle, Advocate
For the respondent/State : Mr.Manhar Dixit, Panel Lawyer
******
Present:
HON'BLE MR. JUSTICE ATUL SREEDHARAN
HON'BLE MRS. JUSTICE SUNITA YADAV
******
JUDGMENT
(28.07.2021)
Per : Sunita Yadav, J.
This appeal has been filed against the judgment dated
29.11.2008 in Sessions Trial No.2/2007, passed by Sixth Additional
Sessions Judge, Fast Track Court, Chhatarpur by which appellant
No.1 Indu @ Indrapal Singh has been convicted under Section 302
of IPC and sentenced to undergo life imprisonment and a fine of
Rs.5000/-,in default of payment of fine, additional rigorous
imprisonment for 2 years, under Section 307 of the Indian Penal
Code rigorous imprisonment for 7 years and a fine of Rs.2000/- in
default of payment of fine additional rigorous imprisonment of
one year, under Section 25/27 of the Arms Act rigorous
imprisonment for 3 years and a fine of Rs.1000/-, failing which
simple imprisonment for six months and Appellant No.2
Devendra Singh @ Pappu Raja has been convicted under Section
302/34 and sentenced to undergo life imprisonment and a fine of
Rs.5000/-, in default of payment of fine, additional rigorous
imprisonment for 2 years, under Section 307/34 of the IPC
rigorous imprisonment for 7 years and a fine of Rs.2000/- in
default of payment of fine additional rigorous imprisonment of
one year.
2. For the sake of convenience, the appellants shall be referred
as accused persons and the respondent as prosecution hereinafter.
3. The case of prosecution, in brief, is that accused Indu @
Indrapal had enmity with deceased Khuman Patel because
Khuman had slapped Indu three years before. On 17.09.2006 at
about 7:00 p.m. in village Darguwa in the field of Bachchu
Patwari, accused Indu @ Indrapal and Devendra Singh @ Pappu
Raja arrived where Khuman Patel, Santosh Patel and Shankar
Patel were working. Accused Indrapal was carrying a gun and
Devendra Singh @ Pappu Raja had an axe in his hand. Accused
Indrapal uttered obscene words and ordered Khuman, Santosh
and Shankar to stand in a line. Then he asked whom should he
shot at first. When Khuman asked the accused why were they
killing them, accused Devendra Singh said "kill them all". After
that Accused Indu @ Indrapal fired at Khuman Patel on his chest
who died on the spot. When Shankar tried to escape, accused
Indu @ Indrapal fired at him too. The bullet hit Shankar's left
hand. Devideen Patel and Santosh, who were present at the time
of incident in the same field, came running to their village and
told the entire incident to sarpanch Harsevak Patel, Nandu Patel
and Balkishan Patel.
4. Injured Shankar was taken to the Police Station Satai where
he lodged a report. The report was registered under crime no.
zero. The FIR was registered by Police Station Pipat as the place
of incident falls within its jurisdiction.
5. The concerned police station completed the investigation
and filed the charge sheet against the accused persons under
Sections 302/34,307/34 of the Indian Penal Code and Sections 25
and 27 of the Arms Act.
6. The learned trial Court framed charges for the offence under
Sections 302, 307 of the IPC and Sections 25, 27 of the Arms Act
against the accused Indu @ Indrapal and also framed charges
under Sections 302/34, 307/34 of the IPC against accused
Devendra Singh @ Ghappu Raja. The accused persons denied
their guilt and stated that they are innocent and pleaded for trial
raising defence of false implication.
7. The Learned trial Court after trial of the case and on the
basis of the evidence and material came on record found the
accused persons guilty of the offences as mentioned above and
sentenced them as per the impugned judgment.
8. As per the prosecution story, Shankar Patel (PW-12)
Santosh (PW-6) and Devideen (PW-14) are the eyewitnesses.
Santosh (PW-6) has corroborated the story of prosecution.
However, Shankar Patel (PW-12), who had lodged the First
Information Report, has turned hostile and only corroborated the
part of the prosecution story about his receiving gun fire injury
on his left hand. This witness has denied that it was accused
Indrapal who shot at him with intent to kill him.
9. Devideen (PW-14) has corroborated the prosecution story
in his examination-in-chief. However, this witness has turned
hostile during his cross-examination. At para 23 of his statement
PW-14-Devideen has categorically admitted that after the death
of Khuman, accused persons lodged an FIR under Section 307 of
the Indian Penal Code against the complainant party in which
both parties had entered into a compromise and because of that
he had changed his version about the incident. PW-12 Shankar
who is the brother of Devideen has also admitted in his statement
at para-5 that Durg Singh had got a false case registered against
them to put the pressure upon them and in that case they have
reached a compromise. Looking to the above admission of the
witness Devideen (PW-14), and Shankar (PW-12) the possibility
of their turning hostile to save the accused persons because of the
compromise in the criminal case registered against them by the
father of accused cannot be ruled out. Therefore, the prosecution
story cannot be disbelieved only on account of the statements of
Shankar (PW-12) and Devideen (PW-14) who have turned
hostile.
10. From a perusal of First Information Report Exhibit P-2, it
transpires that the same was lodged on the date of incident
within half an hour from the time of incident by injured Shankar
(PW-12). Complainant Shankar (PW-12) was examined by Dr.
B.S. Chourasiya (PW-9) on 18.09.2006. Dr. Chourasiya had
found a gun shot injury on the left hand of Shankar which
corroborates the prosecution case and the statement of Santosh
(PW-6). The time gap between the incident and the report was too
short to concoct a false story against the accused persons.
11. PW-6 Santosh who is the eye witness remained unshaken
during his cross-examination. Nothing emerged in his cross-
examination to disbelieve his statement. Medical report of
injured Shankar and P.M. report of Khuman also support his
statement. Therefore, there is no reason to disbelieve his
statement. Hence, it is proved beyond any reasonable doubt that
the accused Indu @ Indrapal has committed the murder of
Khuman and attempted to murder Shankar.
12. Now it is to be considered whether the accused Devendra
@ Pappu Raja had common intention to commit the crime with
co-accused [email protected] Indrapal ? To invoke Section 34 of 4Indian
Penal Code, it must be established that the criminal act was done
by more than one person in furtherance of common intention of
all. It must, therefore be proved that (i) there was common
intention on the part of several persons to commit a particular
crime and (ii) the crime was actually committed by them in
furtherance of that common intention. The essence of liability
under Section 34 of4Indian Penal Code is simultaneous conscious
mind of persons participating in the criminal action to bring
about a particular result. Minds regarding the sharing of
common intention gets satisfied when an overt act is established
qua each of the accused. Common intention implies pre-plan and
acting in concert pursuant to the pre-arranged plan. Common
intention is an intention to commit the crime actually committed
and each accused person can be convicted of that crime, only if
he has participated in that common intention.
13. In the present case, as per prosecution story, at the time of
incident, accused Devendra @ Pappu Raja was carrying an axe in
his hand but this is not the case of prosecution that this accused
has participated in any manner to cause injuries to deceased
Khuman or Shankar with co-accused Indu @ Indrapal. It is
apparent that the eye witness PW-6 Santosh has also not
attributed any act to this accused to commit the crime by using
the said axe. The prosecution has not even got the independent
witnesses examined to prove the seizure of the said axe. As per
the court evidence of PW-6 Santosh at para -1 accused Indrapal
and Devendra arrived in the field where they were working and
accused Indrapal had fired at Khuman on his chest. This witness
does not say that after the instigation of accused Devendra @
Pappu, co-accused Indrapal had fired at Khuman. Therefore, the
participation of accused Devendra @ Pappu Raja in the crime with
co-accused [email protected] with common intention and pre-
arranged plan has not been proved. Prosecution has not put forth
any fact about the previous enmity of this accused with deceased
Khuman or Shankar. Consequently, the offence under Section
302/34 and Section 307/34 of the Indian Penal Code is not
proved beyond reasonable doubt against him.
14. The prosecution has duly proved the seizure of a 12 bore
gun and cartridges from the possession of accused Indrapal Singh
through the evidence of B.S. Parihar (PW-18) and Jamna Prasad
(PW-13). It has also been proved that the accused Indu @
Indrapal has used the said fire arm to commit the crime as
mentioned above. Therefore, the conviction of accused [email protected]
Indrapal under Section 25 and 27 Arms Act is found to be in
accordance with law and facts.
15. Learned counsel for the appellant Indu @ Indrapal
submitted during the arguments that the prosecution case is
vitiated because Police Station Satai had gone beyond its
territorial jurisdiction and did primary investigation before
sending the case to police station Pipat who had the territorial
jurisdiction to investigate the case. But the above argument is not
tenable because this case is based on direct evidence and the
direct evidence of the eye witness has been found reliable.
Hon'ble Supreme Court in the case of State of Rajasthan vs
Kishore 1996 SCC (Cri) 646: (1996) 8 SCC 217: 1996 Cr. L.J
2003 held that "mere fact that the Investigating Officer
committed irregularity or illegality during the course of the
investigation would not and does not cast doubt on the
prosecution case nor trustworthy and reliable evidence can be set
aside to record acquittal on that account." Similarly in the case of
Amar Singh vs. Balwinder Singh and Others AIR 2003 SC
1164: 2003(2) SCC 518: 2003 SCC(Cri) 641 it was held by
Hon'ble Supreme Court that "If the prosecution case is
established by the evidence adduced, any failure or omission on
the part of the Investigating Officer cannot render the case of the
prosecution doubtful".
16. In light of the above discussion, the appeal filed by accused
Indu @ Indrapal Singh is dismissed hereby. His conviction and
sentence under Sections 302, 307 of the Indian Penal Code and
section 25/27 of the Arms Act, is affirmed. The appeal filed by
accused Devendra Singh @ Pappu Raja is allowed. The impugned
judgment with regard to this appellant is set aside and he is
acquitted from the offence under Sections 302/34 and 307/34 of
the Indian Penal Code.
(Atul Sreedharan) (Sunita Yadav)
Digitally signed Judge Judge
by BIJU BABY
b
Date: 2021.08.02
13:09:45 +05'30'
