Madhya Pradesh High Court
Anna @ Anand vs The State Of Madhya Pradesh on 12 November, 2021
Author: Vivek Rusia
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T H E H I G H C O U R T O F MAD H YA PRAD E S H
B E N C H AT I N D O R E
[D.B.:Hon'ble Shri Justice Vivek Rusia & Hon'ble Shri Justice
Shailendra Shukla, JJ.]
Criminal Appeal No.718/2012
Appellant: Madanlal, S/o Pannnalal Chopra
(In-jail) Age-43 years, R/o- Brahmakundi, Dhar
P.S. Dhar, District-Dhar (M.P.)
Versus
Respondent: State of M.P.
through P.S.- Dhar
District- Dhar (M.P.)
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For Appellant (s) : Mr. Vivek Singh, Advocate
For Respondent (s) : Mr. Sudhanshu Vyas, G.A.
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Criminal Appeal No.917/2012
Appellant: [email protected] Anand S/o Buddhasingh Banjara,
(in jail) Age- 25, R/o- Brahmakundi, Dhar
P.S. Dhar, District-Dhar (M.P.)
Versus
Respondent: State of M.P.
through P.S.- Dhar
District- Dhar (M.P.)
--------------------------------------------------------------------------------------------------
For Appellant (s) : Mr. Shalabh Sharma, Advocate
For Respondent (s) : Mr. Sudhanshu Vyas, G.A.
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JUDGMENT
(Heard on 27/10/2021)
(Delivered on 12/11/2021)
PER VIVEK RUSIA, J:-
The appellants have filed these criminal appeals against the
judgment dated 29/05/2012 passed by the Ist Additional Sessions Judge,
Dhar (M.P.) in S.T. No.128/2010 whereby they have been convicted
under sections 341 and 302 of the IPC and sentenced to undergo 1-month
S.I. and Life Imprisonment with fine of Rs.1,000/- in default six months
of additional R.I., respectively.
2. The prosecution story of this case in short is as under: -
i. On 05.03.2010 @2:30 p.m. Gokul Dodiya P.W.4 and his cousin
brother Bunty @ Bantiya Dodiya went to their agriculture field situated
behind the polytechnic college, Brahmakundi, Dhar on a motorcycle.
After some time when they were returning to Navgaon and Bunty @
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Bantiya was driving the motorcycle. Between Polytechnic college and
Brahmakundi near handpump and well Madanbhaya and [email protected] Anand
Banajara i.e., appellants met them. They stopped the motorcycle by
raising their hands. They were hiding the sword in their shirt.
Madanbhaya started abusing Bunty @ Bantiya to which he objected then
they started assaulting him by means of swords. Bunty @ Bantiya started
bleeding and both fell from the motorcycle. Jagdish Navgaon P.W.-9 was
passing through the spot and saw the incident. Gokul and Bunty @
Bantiya ran away in opposite directions. While running towards the
village Gokul turned around and saw that these two appellants were
attacking Bunty @Bantiya by means of swords. He met the father of
Bantiya Ramji, Rajesh Dodiya, P.W.-5. and Raju Kamdar P.W.-6 and
narrated the entire incident to them and they went back to the spot and
started searching Bunty @Bantiya and finally found him lying bleeding
with the injuries at Prakash Nagar. Upon asking he said that these two
appellants have assaulted him near nallah. They noticed injuries on both
hands. He was taken to the Bhoj district hospital where doctors declared
him dead. Gokul P.W.-4 lodged the report in a police station on
05.03.2010 at 5 p.m. which was registered at crime no.2010 under section
341, 294 and 302 of the IPC by A.S. Badole P.W.-10. Dr. Puran Singh
(P.W.-8), Bhoj district hospital, Dhar sent an information Exhibit-P/7 to
the police station Dhar and on which Suresh Chandra P.W.-7 registered a
merg no.13/2010 Exhibit-P/8. Anil Sharma (P.W.-3) started the
information, drawn a Safina Form Exhibit-P/3, and prepared a Naksha
Panchayatnama Exhibit-P/4. Dr. Puran Singh conducted the autopsy and
found that Bunty @ Bantiya died due to the excessive bleeding from the
injuries and the death is homicidal in nature. The accused persons were
arrested and two swords were recovered from both of them. Police
seized the clothes, soil, mud from the spot and sent them to the FSL.
Appellant Anna was arrested on 08.03.2010 vide Exhibit-P/16. Madan
was arrested on 12.03.2010 vide Exhibit-P/17. They were interrogated
and swords were seized. They were sent to the doctor with a query report
and the doctor opined that the injuries might be possibly caused by these
two swords. M.K. Dubey P.W.-14 prepared a spot map Exhibit-P/6 seized
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the blood soaked soil and plain soil near the house of Chetan Bhabhi and
blood spots by scratching the plaster of the wall. All the seized articles
were sent to the FSL vide draft letter P-2 and the report received vide P-
18.
ii. After completing the investigation and charge sheet was filed
under section 341, 294, 302/34 of the IPC and section 25(1-B) of Arms
Acts on 05.04.2010 before J.M.F.C. Dhar and on 16.04.2010 and the trial
was committed to the Sessions Court. The charges were framed and the
appellants denied the same and pleaded for the trial. Under section 313 of
the Cr.P.C. the appellants have declared themselves as innocent and
pleaded false implication. In defense they examined Chetan (D.W.-1) and
Hari Singh (D.W-2) whereas the prosecution has examined 14 witnesses
namely Devisingh P.W.-1, Govardhan P.W.-2, Anil Sharma P.W.-3, Gokul
P.W.-4, Rajesh Dodiya P.W.-5, Raju Kamdhar P.W.-6, Suresh Chandra
P.W.-7, Dr. Puran Singh P.W.-8, Jagdish P.W.-9, A.S. Badole P.W.-10,
Ganesh Chouhan P.W.-11, Pannalal P.W.-12, Dharamveer Singh Chouhan
P.W.-13 and M.K. Dubey P.W.-14 and got exhibited 18 evidence as
Exhibit-P/1 to P/18. After evaluating the evidence came on record the
Additional Session Judge convicted the appellants under sections 341 and
302 of the IPC and sentenced them accordingly as stated above. The
appellants are in jail since the date of arrest. Hence the present appeal
before this Court.
3. Shri Vivek Singh and Shri Shalabh Sharma, learned counsels
appearing for the appellants have argued that deceased Bunty @ Bantiya
was a known criminal of that locality. As many as 10 criminal cases were
registered against him from the year 2005 to the year 2008. He was
involved in extortion of money therefore, he had developed several
enemies in the local area. The incident took place on 05.03.2010 and that
was the day of Holi festival. All the villagers were celebrating the festival
and by taking the advantage of that one of the enemies might have killed
him and these appellants have been falsely implicated in this case. It is
further submitted by the learned counsel that the prosecution has failed to
prove any motive behind the killing of Bantiya , hence the possibility of
false implication is strong enough in this case. Gokul lodged an FIR and
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whose presence on the spot is doubtful and his conduct is also unnatural.
The incident took place in a residential area no one came forward to save
the deceased or call the police as the deceased was lying there for more
than half an hour in an injured condition. The police did not seize the
motorcycle from the spot which the complainant and the deceased have
left and did not find the owner of the motorcycle. Raj Kamal and Jagdish
eyewitnesses have been disbelieved by the trial court. Rajesh Dodiya,
P.W.-5 is a relative hence, his testimony cannot be relied on hence, the
appellants are entitled to acquittal by giving the benefit of the doubt.
4. Mr. Amit Singh Sisodiya learned Government Advocate has
argued in support of the judgment by submitting that the testimony of
eyewitnesses cannot be discarded merely because he is relative to the
deceased. The testimony of Gokul Dodiya P.W.-4 cannot be discarded as
he was present on the spot. Bantiya was murdered in daylight and
witnessed by villagers and some of them came forward to depose in the
court. minor omissions and contradictions are liable to be ignored. The
motorcycle was not involved in the crime hence it was not required to be
seized in the case by the Investigation Officer. The evidence of Gokul
(P.W.-4) is sufficient to convict the appellants, hence criminal appeal is
liable to be dismissed.
We have heard the learned counsel for the parties at length and
perused the record of the case.
5. Dr. Puran Singh (P.W.-8) examined the dead body of deceased
Bunty @ Bantiya and found six lacerated wounds on both the hands and
legs. All the injuries were deep wounds and caused by sharp cutting
objects. All the injuries were caused within six-hour and the deceased
died due to excessive bleeding. After examining the sword he opined that
all the injuries might have been caused by the sword therefore, there is no
dispute about the cause of death and the death was homicidal in nature.
The defense taken by the appellants is that someone else might have
caused the injures and due to which Bunty @ Bantiya died and they have
been falsely implicated. Since there is no challenge to the cause of death
which is homicidal, hence we need not reappreciate the same,
accordingly affirm the findings recorded by the learned Additional
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Session Judge that death was homicidal in nature and due to the
excessive bleeding caused due to sharp-edged sword.
Now the sole issue which requires our serious consideration is
whether appellants have rightly been convicted under section 302 of
the IPC and the prosecution has been able to prove the charges beyond
a reasonable doubt?
6. According to Gokul (P.W.-4) he along with the deceased was
returning from the agricultural field and the deceased was driving the
motorcycle. When they reached near well between polytechnic and
Brahmakundi. The accused persons stopped the motorcycle by raising
their hands and they were hiding the sword in their shirt. Madan suddenly
caused injury on the left wrist by the sword and thereafter, Anna also
inflicted the injuries near the elbow and the motorcycle fell down and
Bunty @ Bantiya ran away on the left side and he ran on the right side.
After running to some distance he turned back and saw that these
appellants were assaulting Bunty @ Bantiya with swords. He reached the
agricultural field of Bunty @ Bantiya Dodiya and where he met Ramaji
( father) and Raju Kamdhar (P.W.-6). He narrated the incident thereafter,
all the three came back to search Bunty @ Bantiya. He was found near
the culvert of Prakash Nagar in a pain. Upon asking, Bunty @ Bantiya
informed that the appellants (Madanbhaya and Anna) have assaulted him.
They saw multiple injuries on the hand and leg. By that time others
joined them and took him to the hospital. Shri Vivek Singh has submitted
that when Gokul being a pillion rider in the motorcycle has already seen
these two appellants causing injuries to Bunty @ Bantiya then there was
no need to ask from Bunti @Bantiya again which shows that he was not
present on the spot did not see these appellants causing injuries which
becomes untrustworthy witnesses. His sole testimony cannot be relied
upon.
6. Learned counsels have pointed out certain omissions and
contradictions in statements recorded under section 164 of the Cr.P.C. as
well as in court statements. But the learned trial court did not find any
serious contradictions in the statement. It is further submitted by Shri
Singh that Gokul did not sustain any injuries in the incident therefore his
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presence becomes doubtful on the spot. We are not agreeing to the above
submissions because according to the Gokul (P.W.-4) he was a pillion
rider and the deceased was driving the motorcycle. These accused
persons were standing in front of the motorcycle and took out the knife
from their shirt and inflicted injuries on both the hands of the deceased.
They came to kill the deceased, not Gokul. They caused the injuries to
the deceased on the hand and both of them fell down from the motorcycle
and ran in the opposite directions. Since the appellants came to kill Bunty
@ Bantiya, therefore they followed him, therefore, there was no question
of sustaining the injuries to Gokul because he was sitting behind Bunty
@ Bantiya on a motorcycle and immediately ran away from the spot.
Merely he did not sustain any injuries his testimony cannot be discarded
in toto. The appellants have not pleaded any animosity with Gokul hence
there was no reason to give evidence against them.
7. The prosecution has examined another witness Jagdish (P.W.-9)
being an eyewitness, he is a chance witness passing from the scene of the
crime but after seeing the incident he did not inform anyone. In the cross-
examination, he admitted that no police person has questioned anything
from him. He is a relative of Bunty @ Bantiya and despite seeing his
relative being assaulted he did not try to inform the police or did not try
to save him, therefore, his testimony cannot be believed and he is not a
trustworthy witness. His presence is not established by Gokul P.W.-4. on
the spot. He did not accompany him to the hospital. Learned trial Court
has rightly disbelieved him.
8. The prosecution has also examined Rajesh Dodiya P.W.-5 and Raju
Kamdar P.W.-6 who were informed about the incident by Gokul P.W.-4.
They reached the spot and found Bunty @ Bantiya in Prakash Nagar in
an injured condition. Shri Singh has rightly contended that when Gokul
Dodiya had seen the appellants assaulting the deceased and he narrated
the incident to the aforesaid two witnesses then there was no reason from
them to ask from Bunty @ Bantiya about the incident. This only
established that they found the deceased in Prakash Nagar in an injured
condition and rest of the testimony was disclosed by Gokul. They have
further deposed that they took the injured in their motorcycle. Rajesh
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Dodiya was driving the motorcycle and Raju Kamdar was sitting behind
him and caught hold Bunty @ Bantiya and on the way to the incident was
narrated to them. As per the Gokul (P.W.4) when the deceased was
bleeding from all the deep wounds then no bloodstain was found on the
clothes of these two witnesses. Police did not seize the clothes of these
two witnesses containing the bloodstains. This also doubtful their
presence and their testimony cannot be relied on.
9. The incident took place in the daylight on the day of Holi festival.
The entire village was celebrating the festival, but the prosecution did not
examine any independent witness or resident who witnessed the incident.
That when the police reached the spot the villagers were there on their
roof but none of them came forward to give any evidence in this case.
Gokul (P.W.-4) is the cousin brother of the deceased being a close relative
his testimony should be examined carefully. Admittedly no motive has
been established by the prosecution in this case. The appellants have no
criminal record therefore, it is not a case of a gang war. Eye-witness
projected by the police Jagdish (P.W.-9) has been disbelieved by the trial
court itself. The defense has examined three witnesses. Chetan Bhabi
D.W.-1, according to him Bunty @ Bantiya came in an injured condition
and sat behind his house thereafter 10 to 15 persons came there with
sword and dhariya and started assaulting him on the day of Holi festival.
Half an hour he was lying there in front of his house. Bunty @ Bantiya
demanded water and he tried to give him water but Bunty @ Bantiya had
died then his relative came there. Bunty @ Bantiya was a known
criminal. Harisingh D.W.-2 has also deposed in support of these
appellants. According to him before his relative came to the spot the
deceased had already died. According to Gokul P.W.4, Rajesh Dodiya,
P.W.-5 and Raju Kamdar P.W.-6 when they reached to the deceased he
was alive and they asked about the incident. He was brought to Bhoj
District hospital at 3:20 p.m. in a dead condition.
10. In cross-examination Gokul (P.W.-4) has admitted that he always
carry a mobile phone with him. When he was running away from the spot
he did not give a call to anyone or even to the police. The natural conduct
was to call the father of the deceased or to call the police to save the
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deceased. According to him, he searched the deceased for 30 minutes but
when he found him, he was alive. According to him one passenger was
driving the motorcycle and Raju Kamdhar was sitting on the rear seat and
Bunty @ Bantiya was sitting in the between and he walked down to the
hospital. The hospital is 3 km away from the spot. Instead of going to the
police station, they went to the hospital along with Ramji. He admits that
the deceased was having a dispute with Sitaram. Under fear, he did not
try to save Bunty @ Bantiya. He further admits that in his report and
section 161 statement there is no mention that Bunty @ Bantiya has
informed that these appellants have assaulted him. Therefore, this witness
entire testimony cannot be accepted as complete truth. His conduct was
not natural conduct when he saw the incident happening with his cousin
brother, he could have informed others or called for help by calling
through mobile phone instead of running for half km for 15 minutes. Had
he intended to call the help he would have called the police from his
mobile phone. According to him, he is running a restaurant in the same
locality.
11. Likewise, Rajesh Dodiya P.W.-5 reached the spot along with Raju
Kamdhar P.W.-6 and Ramaji and saw Bunty @ Bantiya alive in an
injured condition. According to him, Raju Kamdhar took him to the
hospital where he was declared dead. He is a property broker by
profession. According to him when Bunty @ Bantiya was sitting with
him on the motorcycle blood and mud came on his shirt but the police did
not seize his clothes. Had he been alive, they would have taken him to the
hospital instead of to the police station, hence he is also an unreliable
witness.
12. Raju Kamdhar (P.W.6) states that he found Bunty @ Bantiya in an
injured condition and he took him to the hospital. He has not stated that
he went to the hospital where he has been declared dead. In cross-
examination, he has admitted that Harijan Kalyan Police station was in
between but they did not stop there to lodge a report. They also found a
Suraj Nursing home but they did not take him there. But he denied that
because the deceased had already died. As per Dr. Puran Singh P.W.-8 the
deceased was brought to the hospital by Rajesh Dodiya. All the injuries
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were not on the vital part of the body. He did not match the injuries with
the cut marks on the clothes of the deceased. According to him, the blood
had already freezed therefore, he could not give an actual period of death.
Jagdish (P.W-9) has already been declared hostile and disbelieved by the
trial Court.
13. The seizure witness Ganesh Chouhan P.W.-11 has supported the
case of the prosecution but another witness Pannalal P.W.-12 has been
turned hostile. The bloodstains were found on the sword seized from
these appellants but no blood group was disclosed as the blood was either
inconclusive or disintegrated. Therefore, based on the sole testimony of
untrustworthy witness Gokul (P.W.-4) appellants have been wrongly been
convicted for the offence under sections 341 and 302 of the IPC. They are
entitled for benefit of the doubt, accordingly, we set aside the judgment
dated 29/05/2012 passed by the Ist Additional Sessions Judge, Dhar
(M.P.) in S.T. No.128/2010 whereby they have been convicted under
sections 341 and 302 of the I.P.C. The appellants be released from jail if
they are not required in any other case.
Record be sent back with a copy of this judgment.
(VIVEK RUSIA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Ajit/-
AJIT
Digitally signed by AJIT KAMALASANAN
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
BENCH INDORE, ou=HIGH COURT OF MADHYA
PRADESH BENCH INDORE, postalCode=452001,
st=Madhya Pradesh,
KAMALASA 2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba
241effad892107d95ef0a1afc55b4,
pseudonym=CFDFD9C36711CA738F527A5D61A1E
E901C09EF29,
NAN
serialNumber=7F0BEE2D78BD57DA058F3247441C
87E7E0817FB61F5E2ABCAEE63CAAA7B3B9FF,
cn=AJIT KAMALASANAN
Date: 2021.11.12 16:42:50 +05'30'
