Ghyansingh vs The State Of Madhya Pradesh
2021 Latest Caselaw 7983 MP

                                        -: 1 :-

       HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(DIVISION BENCH: HON. Mr. JUSTICE VIVEK RUSIA AND HON.
         Mr. JUSTICE SATYENDRA KUMAR SINGH)

                               CRA No. 200 OF 2010
Appellant.                           Mansingh S/o. Shri Sundarsingh, Cast -
                                     Rajput, Aged 48 years, Occ. Agriculturist,
                                     R/o. Gram Khurdipipplya, District Dewas.
                     Vs.
Respondent.                          State of M.P. through P.S. Bagli,
                                     District Dewas.

                             CRA No. 223 OF 2010
Appellant.                           Gyansingh S/o. Ramsingh Rajput, Aged 48
                                     years, R/o. Bolasa, District Dewas.
                     Vs.
Respondent.                          State of M.P. through P.S. Bagli,
                                     District Dewas.

                           ***********************
      Shri Gaurav Verma learned counsel for the appellant in CRA No.200/2010.
     Shri Sudarshan Joshi learned counsel for the appellant in CRA No.223/2010.
       Smt. Mamta Shandilya learned Govt. Advocate for the respondent/State.
                           ***********************
                                 JUDGMENT

(Delivered on 30th November 2021) Per se Vivek Rusia, J :

The appellants have filed these criminal appeals being aggrieved by the judgment dated 4.1.2010 passed by the Special Judge, Dewas, District Dewas in Sessions Trial No.41/2008 whereby they have been convicted and sentenced as under :

Conviction u/s. Sentence awarded Fine imposed In default of payment of the fine.

364 of IPC.           7 years' RI.          Rs. 2,000/-         6 months RI.
302/34 of IPC.     Life                 Rs.5,000/-              One year RI.
                   Imprisonment.
Both the sentences are directed to run concurrently.

2. The prosecution story in nutshell is that on the date of the incident i.e. on 7.3.2008 at 3.30 pm., the deceased Kalu belonging to 'Bhil' community was sitting in his house along with his brother Natu and other villagers viz.

Manohar, Mansingh, Balsingh, etc. Three persons armed with a gun came there in a Jeep and in a loud voice told Kalu that he had given a surety for his son-in-law Gulab but he has left the job after taking money, therefore, he would have to pay the amount. Deceased Kalu denied that he never gave any surety, but he would convince his son-in-law for returning to work. All the three persons forcibly have taken Kalu in their Jeep. Natu, the brother of Kalu identified the accused - Mansingh and he was addressing other two persons in the name of Amrish Rajodiya and Gyansingh. When Kalu did not return, then the FIR (Exh. P/1) was lodged in Aarakshi Kendra Bagli and an offence u/s. 365/34 of the IPC was registered against all three persons.

3. On the same night, the Watchman of Village Piplyakhurd gave an intimation in the Police Station Bagli that a dead body is lying in the 'Khala' (a shed for storing agricultural produce, etc.) of accused Mansingh. He has identified him in the torchlight as the father-in-law of Gulab -Kalu Patel S/o. Bana Bhil R/o. Village Bori. Said information was recorded in Dehati Merg vide Exh. P/10. The police drew Inquest form in the presence of 5 witnesses, and also prepared "Laash Panchayatnama; spot map, etc. and arrested Mansingh and Gyansingh and sent the seized articles to FSL. After completing the investigation, the police filed the charge-sheet against the present appellants viz. Mansingh , Gyansingh and Amrish Rajoriya . The police have not arrested co-accused Amrish Rajoriya till today therefore, the investigation and trial against him is still open. The trial was committed to the Court of Sessions from where it was sent to the Court of Special Judge, where the learned Special Judge framed the charges u/s. 364/34 and 302/34 of the IPC and u/s. 3(2)(v) of the Scheduled Caste Scheduled Tribe (Prevention of Atrocities) Act. Both the appellants denied the charges and pleaded for trial.

4. The prosecution has examined as many as 19 witnesses and 13 documents as Exh. P/ 1 to P/13. In defence, the appellants have examined three witnesses. The appellants have also got exhibited the statements of witnesses recorded u/s. 161 of Cr.P.C. and the voter list as Exh. D/1 to D/3.

After analysing the evidence that came on record, learned Special

Judge vide judgment dated 4.1.2010 has acquitted the appellants from the charge u/s. 3(2)(v) of Scheduled Caste Scheduled Tribe (Prevention of Atrocities) Act but convicted u/s. 364/34 and 302/34 of the IPC and sentenced them, as stated above. Hence, these criminal appeals by both the appellants separately.

We have heard the learned counsel for the parties at length and perused the record of the court below.

5. Learned counsel for the appellant - Mansingh submitted that the appellants said to have abducted Kalu at 3.30 pm, but Natu (P.W.1) lodged the FIR with a delay at 20.40 hours without giving any explanation. In the evidence he has stated that he had signed the FIR on the next day, therefore, the FIR (Exh. P/1) becomes doubtful in respect of the allegation of abduction u/s. 364 of the IPC. So far as recovery of the dead body of Kalu in the 'Khala' of Mansingh is concerned, the appellants have wrongly been convicted because no document, spot map, etc. have been exhibited to establish that the said area ('Khala') belongs to Mansingh. Ambaram (P.W.11) in his evidence has stated that he saw the dead body in the forest area. The identification of the dead body of Kalu by Ambaram (P.W.11) is also doubtful because both are residents of different villages, therefore, Dehati Merg Information (Exh. P/10) also becomes doubtful. The police could not arrest co-accused Amrish Rajoriya so far. There are various omissions and contradictions in the statements of the witnesses which have been ignored by the learned Sessions Judge. It is further submitted that the licensee gun has been recovered from Mansingh and 12 bore gunshots are said to have been fired from the said gun, but the injuries explained by the Doctor are not in corroboration with the injuries caused by 12 bore gun. The ballistic report is also not confirming as to when this firearm was used last time. In this case, there is no eye-witness and the case is based on circumstantial evidence. No one has seen the present appellants throwing the dead body of Kalu in the forest area, therefore, the appellant - Mansingh has wrongly been convicted u/s. 302/34 of the IPC.

6. Learned counsel for the appellant - Gyansingh submitted that

this appellant has wrongly been convicted u/s. 302 of the IPC as he had no enmity with Gulab - son-in-law of the deceased Kalu. At the most, he was driving the vehicle and participated in the so-called abduction but there is no evidence that he had any motive to kill Kalu. The defence evidence given by him has wrongly been ignored by the learned Special Judge. Hence, he be acquitted of all the charges.

7. Learned Govt. Advocate appearing for the respondent/State supported the impugned judgment passed by the learned Special Judge. It is submitted that the delay in lodging the FIR has been explained by Natu (P.W.1) stating that the police station is situated 10 Kms from the spot of crime. The entire day, Natu (P.W.1) searched the deceased Kalu and when he did not return back in the night, then the FIR was lodged by him. Natu (P.W) has duly identified Mansingh who abducted Kalu and on the same day, his dead body was found in his 'Khala'. Therefore, all the circumstances connecting these appellants with this crime have been established by the prosecution. From 3.30 pm. till his death, Kalu was with Mansingh, Gyansingh and Amrish Rajoriya, therefore, u/s. 106 of the Evidence Act, the burden is on the accused persons to establish as to what had happened with Kalu in between. So far as Gyansingh is concerned, in his cross- examination, he has confirmed his presence with Mansingh in the Jeep and thereafter the dead body of Kalu was found. Therefore, both the appellants have rightly been convicted u/s. 302/34 of the IPC apart from conviction u/s. 364 of the IPC. Hence, the appeals are liable to be dismissed. We have given our thoughtful considerations of the above submissions, its appreciation and conclusion are as under:-

8. The prosecution has examined Natu as P.W. who has stated that on the date of an incident near about at 3.00 pm. he was sitting in the house of his brother - Kalu. Mansingh, Gyansingh and Amrish came there, and they were carrying a gun in their hands. They took his brother Kalu forcibly in the Jeep. He went along with Surpanch - Premsingh to search his brother but could not find him, thereafter, he went to the Police Station and lodged the report which was recorded by Harisingh. He has admitted his signature

in Exh. P/1. He has further deposed that son-in-law of Kalu viz. Gulab was a servant in the house of Mansingh. He was paid wages in advance but after serving for some days, he left the job. He has also admitted the identification of appellants by him in the TIP. Learned counsel for the appellants has referred Para 3 of cross-examination of Natu (P.W.1) in which he has admitted that the FIR was lodged at 6 pm whereas the timing of recording of FIR is 8.30 pm. In our opinion, it is only a minor contradiction that does not make the FIR doubtful hence same is liable to be ignored. The witness belongs to 'Bhil' community and has a rural background. There can be a mistake in mentioning the time. He was further cross-examined by the defence counsel of Gyansingh and in Para 27 he has denied the suggestion that Gyansingh was sitting in the Jeep and objecting abduction of Kalu. P.W.-1 is fully supporting the case of prosecution there is no reason to discard his testimony as he had no reason to depose against the appellants.

9. Deepsingh (P.W.2) has also supported the prosecution case as he witnessed Mansingh, Gyansingh and Amrish abducting his Uncle Kalu. Accordingly to him, all three were carrying guns. He accompanied Natu (P.W.1) to lodge the FIR. He has also supported the TIP conducted in the Jail. Likewise, Balsingh (P.W.3) has also stated about the abduction of Kalu by all the three accused persons. Mansingh (P.W.4), Manohar (P.W.5) have also supported the prosecution case in respect of abduction of Kalu by the appellants and Amrish. Jeevan (P.W.6) s/o. Kalu went to Police Station Bagli to lodge the report along with his Uncle Natu (P.W.1), however, he was not on the spot at the time of the incident. He received the information of abduction from Kailash. From the aforesaid evidence, the prosecution has established the abduction of Kalu by these two appellants and Amrish, hence they have rightly been convicted by the learned Special Judge u/s. 364 of the IPC.

10. So far as the nature of the death of Kalu is concerned, the postmortem was carried out by Dr. Rohit Nidan (P.W.8) who found two gunshot injuries in the body of Kalu and as per his opinion, the deceased died because of excessive bleeding from the internal injuries caused by

gunshots. The death took place within 12 to 24 hours. In the cross- examination, he has clarified that injury No.1 is the exit wound of injury No.3 and injury No.2 is the exit of injury No.4. He found a smell of liquor from the stomach, therefore, there is no cross-examination in respect of a cause of death. Hence the testimony given by the Doctor remained unrebutted and accordingly we affirm the findings given by the learned Special Judge that the deceased died due to gunshot injuries which is homicidal.

The only issue that requires our consideration is, whether the appellants have murdered Kalu by gunshot and the prosecution has established the same by circumstantial evidence?

10. As held above, the deceased Kalu was abducted by the appellants and Amrish and at that time, they were carrying a gun. The police have recovered the 12 bores licensed gun from the possession of the appellant - Mansingh. Dilip Bhandari (P.W.18). The SDOP has seized 12 bore gun and arm license from Mansingh vide Exh. P/2 and sent the said arm for ballistic examination. Parmanand (P.W.3), the Kotwar has established the seizure of the gun from the appellant - Mansingh and there is no challenge to it . As per the ballistic report dated 3.3.2008 (Exh. P/10) the 12 bore gun is in working condition. Residues of using both the barrels were found, however, no period of use of the same has been given. Learned counsel for the appellant - Mansingh submitted that the Scientific Officer has failed to mention the period as to when the gun was used for the last time, therefore, it cannot be believed that the said gun was used for the murder of Kalu by the appellant. We cannot accept the contention of the learned counsel for the appellant for the simple reason that there is an entry of five cartridges in the license seized by the police but he did not surrender all 5 cartridges. If it is a defence of the appellant Mansingh that the gun was not used for the offence, then he ought to have produced all the five cartridges in the Court. The police have not seized the cartridges from the house of the appellant Mansingh. Therefore, when the gun has been seized without the live cartridges and there is evidence that it was used for fire, then there is a

presumption that it was used for the commission of murder of Kalu.

11. After the abduction of Kalu from his house by the appellants, his dead body was found in the agricultural field ('Khala') of the appellant - Mansingh. The dead body was found by Ambaram (P.W.1), the watchman of the Village. Although in the Court statement he has stated that he saw the dead body in Piplyakhurd Jungle and thereafter he gave a 'Merg' intimation (Exh. P/10). He has admitted his signature in Exh. P/10. He has also established the preparation of Naksha Panchayatnama, 'Safina' form, seizure of bloodstained and plain soil from the spot, etc. According to him, the police had told him that the deceased is Kalu. Learned counsel for the appellants submitted that Ambaram did not identify the deceased, therefore, the 'Merg' intimation is a suspicious document. Ambaram (P.W.) has admitted that he gave a 'Merg' intimation to the effect that he saw the dead body. He has admitted his signature. The contents of 'Merg' intimation establishes that there was dark in the agricultural field ('Khala') of the appellant - Mansingh, he identified Kalu - father-in-law of Kailash in the torchlight. Thereafter, Naksha Panchayatnama was prepared in which also, the dead body was found in the agricultural field of Mansingh. Although the police have prepared the spot map showing the dead body of Kalu lying near the 'Khala' of Mansingh, the said document has not been exhibited in the trial and the same is available in 'B' File of the Court record.

12. There is no challenge to the finding given by the learned Special Judge that the appellants had taken Kalu in their Jeep. We have also upheld the said finding recorded by the learned Sessions Judge. Thereafter, the dead body of Kalu was found in the agricultural field ('Khala') of the appellant - Mansingh, then the burden was on the appellants to establish that after abduction what they did with Kalu. There is no evidence on record that the appellant had left Kalu to his home back after some time. Therefore, the appellants have failed to discharge the burden as to what had happened after the abduction of Kalu till his death. The appellants were carrying a gun at the time of the abduction, one licensee gun was seized from the possession of Mansingh without any cartridges, therefore, we are of the opinion that the

prosecution has successfully proved the charges u/s. 364 and 302/34 of the IPC against the appellant - Mansingh and the learned Special Judge has committed no error in conviction him for the aforesaid offences.

13. So far as the conviction of the appellant - Gyansingh is concerned, his presence with accused/appellant - Mansingh has been established by the prosecution. In defence, he has examined Udaisingh as D.W.1. According to him, the appellant Gyansingh was with him but he left for one hour and after some time, he came back and said that "Bura Fas Gaya Aur Usne Kan Pakad Liye" ( badly stuck and he grabbed his ear). Likewise, Prahlad (D.W.2) has also stated that Gyansingh was with him, but he left for one hour and after some time he came back and said that "Bura Fas Gaya Aur Usne Apne Kan Pakad Liye". In the cross-examination, Natu (P.W.1) has stated that he identified Mansingh who took the names of the other two persons as Gyansingh and Amrish Rajoriya. Therefore, the presence of appellant - Gyansingh has also been established and in the opinion of this Court, he has rightly been convicted by the learned Special Judge u/s. 364 and 302 with the aid of Section 34 of the IPC. Hence, we do not find any ground to interfere in this appeal.

In view of the foregoing discussion, these appeals fail and are hereby dismissed. The conviction and sentence awarded by the learned Special Judge are hereby affirmed.

Record of Session Trial be sent back with one copy of this judgment. Let a photocopy of this judgment be retained in the file of connected appeal.

         ( VIVEK RUSIA )                   (SATYENDRA KUMAR SINGH)
             JUDGE.                                JUDGE.
Alok/-

         Digitally signed by ALOK GARGAV
         Date: 2021.12.01 15:12:33 +05'30'