Madhya Pradesh High Court
The State Of Madhya Pradesh vs Homsingh on 12 April, 2022
Author: Deepak Kumar Agarwal
1
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
THE HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(DIVISION BENCH)
( Hon'ble Shri Justice G.S.Ahluwalia &
Hon'ble Shri Justice Deepak Kumar Agarwal)
Criminal Appeal No.212/2010
Ramprakash & Anr.
Vs.
State of M.P.
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Shri M.K.Chaudhary, learned counsel for the appellants.
Shri C.P.Singh, learned counsel for the State.
Shri Anand Purohit, learned counsel for the complainant
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&
Criminal Appeal No.219/2010
Munna @ Ramnaresh & Ors.
Vs.
State of M.P.
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Shri Pradeep Katare, learned counsel for appellants No.1 & 4.
Shri F.A.Shah, learned counsel for appellants No.3.
Appellant No.2-Ramvaran has died.
Shri C.P.Singh, learned counsel for the State.
Shri Anand Purohit, learned counsel for the complainant.
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&
2
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
Criminal Appeal No.268/2010
Santosh & Anr.
Vs.
State of M.P.
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Shri V.D.Sharma, learned counsel for the appellants.
Shri C.P.Singh, learned counsel for the State.
Shri Anand Purohit, learned counsel for the complainant
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&
Criminal Appeal No.285/2010
Hanumandas Baba & Hemraj
Vs.
State of M.P.
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Shri Ashok Jain, learned counsel for the appellant.
Shri C.P.Singh, learned counsel for the State.
Shri Anand Purohit, learned counsel for the complainant
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&
Criminal Appeal No.346/2016
State
Vs.
Homesingh & Ors.
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Shri C.P.Singh, learned counsel for the appellant/State.
Shri Pradeep Katare, learned counsel for respondent No.4.
Shri R.K.Shrivastava, learned counsel for respondents No.9 and 10.
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3
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
Date of hearing : 21.02.2022
Date of Judgment :12.04.2022
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JUDGMENT
( 12.04.2022)
PER JUSTICE DEEPAK KUMAR AGARWAL
This judgment shall govern the disposal of all the five criminal
appeals (Criminal Appeal Nos.212/10, 219/10, 268/10, 285/10 &
346/16.
2. Criminal appeal Nos. 212/10, 219/10, 268/10 & 285/10 have
been filed under Section 374 of Cr.P.C by the appellants against the
judgment of conviction & sentence passed by Third Additional
Sessions Judge, Bhind, in S.T.No.165/2007 on 11.03.2010 by which
appellants have been convicted under Sections 302/149, 148, and
324/149 of IPC and sentenced to undergo life imprisonment with fine
of Rs.500/-, one year and one year RI respectively and Criminal
appeal No.346/2016 has been filed by the State against the same
judgment being aggrieved by acquittal of respondents Homsingh,
Ramdutt and Satyaprakash under Sections 148, 302/149, 324/149 and
307/149 of IPC after taking leave to file appeal from this Court vide
order dated 28.3.2016.
3. Prosecution case in brief is that on 3.7.2007 complainant
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
Narendra Sharma along with his father Ramlakhan Sharma in injured
condition lodged a Dehati Nalishi at Surgical Ward of Distt. Hospital
to the effect that today they were working on their field at Bajariya;
his brother Ramgopali was ploughing the field with tractor and
complainant and his father Ramlakhan were collecting stubble. At
about 7 pm Hanumandas carrying 315 bore gun, Totaram mouser gun,
Munna 12 bore double barrel gun, Ramvaran 315 bore gun, son of
Ramvaran 12 bore gun, Ramdutt 315 bore gun, Satyaprakash 12 bore
gun, Ramsuresh 315 bore gun, Ramprakash 12 bore gun, Santosh
Lathi and Damodar armed with axe came there in Marshal Tata Sumo
and after surrounding Ramgopal started firing on him with intention
to kill him. Gunshot fired by Hanumandas hit at his waist, due to
which blood started oozing out. Complainant and his father when
tried to save Ramgopal, then accused persons with intention to kill
started firing on them. The complainant sustained four injuries on his
head and as a result of which fell down. Father of the complainant
also sustained injuries at different part of his body. Damodar and
Santosh committed Marpeet with Lathi and axe. Guddan, Manish,
Koke and Shashikant, who were present at the spot, intervened in the
matter. Thereafter, injured were brought to Distt. Hospital, Bhind,
where Ramgopal died. On such report, Dehati Nalishi was recorded
under Sections 302, 307, 147, 148, 149 of IPC. Thereafter, FIR Crime
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
No.34/2007 was registered at police Station, Pavai, Distt. Bhind, for
the aforesaid offences.
4. After completion of investigation, charge-sheet was filed before
the competent Court and the case was committed to the Court of
Session from where it was received by the trial Court for trial.
5. In order to bring home the charge prosecution examined fifteen
witnesses. Appellants in their defence examined three witnesses.
6. After trial, learned trial Court convicted & sentenced the
appellants as aforesaid and acquitted respondents of Criminal Appeal
No.346/2016.
7. Learned counsel for the appellants submits that appellants have
been falsely implicated in the case on account of election rivalry. In
this regard, attention has been drawn to para 6 & 17 of the statements
of Ramlakshan @ Ramlakhan (PW-6) where he has admitted that his
son Surendra had lost the election of Surpanch against accused
Hanumandas and appellants Ramprakash & Ramsuresh had supported
Hanumandas. It is further submitted that several cases have been
registered against the complainant party in regard to murder and for
giving shelter to dacoits, and therefore, this possibility cannot be ruled
out that out of the aforesaid enmity someone has killed the deceased
and due to election rivalry, appellants have been falsely implicated in
the case. The eye-witnesses of the case are related witness, and
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
therefore, looking to the fact that there is previous enmity between
parties, evidence of these witnesses cannot be relied on. As per the
FIR and 161 Cr.P.C. statements of Narendra Sharma (PW-3) and
Ramlakshan (PW-6) have sustained firearm injuries in the incident,
but as per the MLC report, they did not sustain any firearm injury and
therefore, in order to fit in the slot of medical evidence, they have
stated before the Court that their Marpeet has been committed by butt
of gun, Lathi and axe.
8. It is further submitted that as per the prosecution story 12
accused have fired on the deceased and complainant party, but
deceased Gopali has received only one gunshot on his thigh inflicted
by accused Hanuman. Against remaining accused omnibus allegation
of firing has been made. The trial Court on the same evidence
acquitted accused Homesingh, Satyaprakash and Ramdatt only on the
ground that they are having enmity with complainant party and
therefore possibility of their false implication cannot be ruled out.
9. It is further submitted that appellants Santosh and Damodar
have been alleged to be armed with Lathi and axe, but the death of the
deceased has been caused due to gunshot injury at thigh.
10. State counsel has supported the impugned judgment and prayed
for dismissal of the appeals. As regards criminal Appeal No.346/2016
filed against acquitted accused Homesingh, Ramdatt and Ramprakash,
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
it is submitted by the learned counsel for the State that trial Court has
erred in acquitting accused Satyaprakash, Ramdatt and Homesingh
when they were carrying 12 bore gun, 315 bore gun and Lathi and
actively participated in the incident.
11. Heard learned counsel for the parties and perused the record.
12. As per Narendra Sharma (PW-3), deceased Ramgopal alias
Gopali was his brother. On 03.07.2007 at about 6-7 pm, he was
tilling his field. At that time he, his father Ramlaxin, brother
Surendra, Guddan, Shashikant, Manish and Koke were present on the
field. He and his brother were collecting stubble of mustard at the
field. One Tata Sumo vehicle came and stopped near the tube-well of
Ramprakash. Hanumandas, Totaram, Ramdutt, Satyaprakash,
Rambaran, Pramod son of Rambaran, Homsingh, Santosh, Damodar,
Ramsuresh, and Ramprakash came out of the vehicle. Accused
Hanumandas was having 315 bore gun, Totaram was having mouser
gun, Ramdutt was having Mouser, Satyaprakash was having 12 bore
gun, Ramsuresh was having mouser gun, Ramprakash was having 12
bore gun, Munna was having 12 bore double barrel gun, Damodar
was having axe, Santosh was having Lathi, Homsingh was having
Lathi, Rambaran was having mouser 315 bore gun, Pramod son of
Rambaran was having 12 bore double barrel gun. After getting down
from the vehicle, they came towards them and started firing
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
indiscriminately. Munna and Homsingh stopped his brother
Ramgopal who was tilling the field and switched off the engine of
tractor. All of them by surrounding them started firing. Hanumandas
assaulted his brother Ramgopal with firearm. Bullet hit on his right
leg below the abdomen.
12.1 When he and his father ran towards his brother to save him, all
the accused started firing on them. Bullets were passed through over
his head. He fell down on the floor. Santosh, Damodar and Homsingh
assaulted them with Lathi and axe due to which injuries were
inflicted on his head and the head and neck of his father. 5-6 injuries
were sustained to his father. Suresh Guddan, Shashikant and Manish
on being called, ran towards them. Koke was also present alongwith
them. At that time, they were assaulted with the handle of guns.
When they came, all the accused ran towards the vehicle and having
sit in the vehicle fled away. Gopali sustained firearm injury. He was
brought to the Bhind Hospital, but he died on the way. Doctor of
Bhind Hospital called SHO of City Kotwali. Thereafter report was
lodged by him to the SHO. Report/Dehati Nalishi is Ex.P-12 which
bears his signature. Thereafter he got treatment. Having reached the
village, performed cremation of his brother and thereafter got
prepared spot map. Spot map is Ex.P-13 which bears his signature.
Police seized simple soil and blood stained soil from the spot and 10-
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
12 empty cartridge of mouser and 12 bore gun from the spot. Seizure
Panchnama of which is Ex.P-14. Part A to A of which bears his
signature.
12.2 During cross-examination, he has stated that his house is
situated at a distance of two fields from the field on which incident
took place. Near his house, houses of Ramkishan, Chintamani and
other peoples are situated. He has stated that he has mentioned while
recording of Dehati Nalishi (Ex.P/12) that he was ploughing his field
at Bajariya, but if this is not mentioned in Ex.P/12, he cannot give
any reason. He did not mention in Ex.P/12 that his brother was
collecting stubble of mustard because in fact he was sitting at that
time. He stated that he was admitted in hospital on 3 rd and discharged
on 10th. Police took his statement on 4th. He has mentioned the name
of son of Rambaran, namely Pramod to the police, but if it is not
mentioned in Ex.D/1, he cannot give any reason. He specifically
stated that he did not mention the name of brother of Ramsingh,
namely Homesingh in Ex.D/1, but if it is written in Ex.D/1 he cannot
say anything. Son of Rambaran, namely Pramod was carrying 12
bore gun. He further stated that while recording of Ex.D/1 and
Ex.P/12 he has mentioned that after surrounding accused persons
started firing, but if it is not written like that, he cannot give any
reason. His brother sustained only one injury. He has mentioned to
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
the police that all the accused slowly started firing on them and the
bullets passed through over their heads and he fell down on the
ground, but if it is not written in Ex.D/1 and Ex.P/12 he cannot give
any reason. He further stated that in regard to causing Marpeet with
the butt of gun he has mentioned the police, but if this is not written
in Ex.D/1 and Ex.P/12 he cannot give any reason. He did not sustain
gunshot at his head and the portion "A" to "A" in Ex.D/1 that "he
sustain gunshot at his head" has not been mentioned by him, how
police has written it in Ex.D/1, he cannot give any reason. He
admitted that in front of him Patwari has prepared spot map of the
field which they were ploughing. He stated that spot map was signed
by him at about 5 pm.
12.3 This witness further stated that after sustaining injury firstly he
went to the hospital. At the time of lodging report he was in
conscious state. He admitted that he did not mention the names of
Pramod and Homesingh while recording of Dehati Nalishi as at that
time he did not know their names. He mentioned their names in his
statement to the police on the basis of information of his brother. He
also admitted that police did not conduct identification parade in
regard to these two persons. He further stated that he sustained 4-5
injuries on head two of Lathi and two of axe. Suresh, Guddan,
Shashikant, Manish were at the mound of field at Bazaria. When they
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
came, the accused persons ran away. He further stated that his
brother Surendra contested the election of Sarpanch against
Hanumandas and Ramkishore. He admitted that accused Totaram has
purchased the land from the widow of Chauhan. He denied that his
father wanted to plough that land forcibly.
12.4 This witness denied that this land is situated at the middle of
Bazariya, that land belongs to them. He further stated that land of
Totaram and their land at Bazariya are adjacent. He denied that on
3.7.2007 when Munna and his cousin brother Homesingh were
returning from Navalpura, they found that their land was being
ploughed. He explained that they were ploughing their field. He
admitted that Munna stopped them to plough the field and a dispute
arose on this point. He denied that they committed Marpeet of
Munna and Homesingh. He denied that they were aggressors and due
to land dispute they are falsely implicating the accused. In reply to
the question that at the time of preparation of spot map whether he
has informed the police in regard to the field which was not disputed
and where incident took place, he stated that he does not remember
about that. He admitted that family members of Totaram were saying
not to plough their field and they were saying that they will plough
the field and dispute arose on this point. He explained that they were
ploughing their field. He admitted that disputed land is not recorded
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
in the name of his father and him. He explained that their
predecessors donated the land to temple. He further admitted that his
brother Surendra lost the election of Sarpanch and in that election
Ramprakash, Ramsuresh and their family members opposed them
and supported Hanumandas. His Marpeet was committed later on.
After sustaining gunshot, his brother fell down on the ground and
remained lying on the ground for 10-15 minutes. Police Station Pavai
is 7 kms away from the place of incident. He denied that due to
election rivalry he falsely implicated Ramsuresh and Ramprakash.
12.5 In reply to a question that when there was no dispute in regard
to ploughing the field, then why he along with others remained at the
field, he stated that ploughing had started, they went to see and sat
there. He further stated that Ramdatt and others have encroached
over their land and case is going on in Court at Mehgaon. He
admitted that a case for the offence punishable under Section 3(1)(x)
of the SCST Act was registered against his father, brother, this
witness, Suredra, Gopali, Guddan, Ramlakhan, Rajkumar,
Rajnarayan and Koksingh at crime No.70/2004. A case under Section
212, 216, 400 of IPC was also registered against his father at Crime
No.13/1999. He further admitted that against this witness, his brother
Surendra Kumar, Gopali, father Ramlakhan and uncle Ramkaran a
case of Marpeet was registered at Crime No.55/94 on the report of
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
Rakesh resident of Didona. He also admitted that a case for
committing Marpeet of Rajesh Bramhan resident of Dirona was
registered against him at crime No.136/2004. He explained that
accused persons got registered that case. He denied that police has
proceeded against this witness, his brothers and father under Section
110 of Cr.P.C.
12.6 This witness has further stated that on the next day at 2.30-3
police took him from the hospital and he informed the police about
the place of incident from where accused persons fired gunshots. At
the time of incident, he was at a distance of 15-20 steps from his
brother Gopali and his father was at a distance of 2-3 steps. At the
time of preparation of spot map, he has informed the police in regard
to place where Marpeet of his father and this witness was committed,
but if it is not mentioned, he cannot give any reason. He also
informed about the place at the time of preparation of spot map
where Suresh, Guddan, Shashikant, Manish and Koke were sitting
and on their call came to the place of incident. They were not
carrying any weapons. He further stated that he and his father got
injured and their clothes were stained with blood. Their clothes were
seen by the police and doctor and their clothes were seized at the
hospital. At the time of preparation of spot map, he has informed
about the field at Bazariya, but if it is not written in Ex.P/13 he
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
cannot give any reason. He did not inform the police that he
sustained four injuries at head and blood was oozing out and how it
has been written in Ex.P/12 at "B" to "B" part, he cannot give any
reason. He did not inform the police that his father received gunshots
at various parts, but he had stated the police that he received injuries
(Khoon Aluda) at various parts.
12.7 This witness further stated that he mentioned in Ex.P/12 and
Ex.D/1 that Santosh and Damodar by Lathi and axe committed
Marpeet with this witness and his father, due to which this witness
received injuries at his head and his father received 5-6 injuries at his
head and nose, but if this is not written in Ex.P/12 and Ex.D/1 he
cannot give any reason. He denied that he did not lodge any report on
3.7.2007 and on the next day after consultation with his family and
relatives report was lodged. He denied that his brother Surendra by
inflicting injury to himself lodged a false report at police Station
Pavai on 3.6.2007 against Hanumandas and Ramdatt. In reply to a
question that after firing and getting down from the vehicle, how
accused persons went towards them, he has stated that they went
towards them from all directions. After getting down from the
vehicle, first fire was made by Hamumandas, but as tractor was
running, he could not hear sound of fire. He cannot say that which
accused caused how many gunshots. He denied that as after election
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
accused persons were opposing their family, therefore they were
keeping enmity with them. He also denied that at the time of incident
accused persons were not at the village. He further denied that he has
falsely implicated the accused.
13. As per Ramlaxin @ Ramlakhan (PW-6), it was 3 rd day of
Asaad. Approximately one year has elapsed. He was collecting
stubble of mustard at his field. Guddan, Gopali, Narendra and
Surendra were also present there. Gopali was driving tractor. At 5:30-
6 pm one Marshal vehicle came in which Hanumandas Baba,
Ramdutt, Totaram, Rambaran, Ramsuresh, Ramprakash, Damodar,
Santosh, Ramkhiladi, Homsingh, Munna, Pramod and Totaram total
11-12 persons were sitting. Vehicle was parked near the well of
Ramprakash. Accused got down from the said vehicle and by firing
gunshots and hurling abuses came near him and surrounded him.
Hanumandas fired gunshot with 315 bore gun which hit his son
Ramgopal between his leg and abdomen. Totaram was having
mouser gun, Rambaran was having mouser, Munna was having 12
bore two barrel gun, Hom Singh was having Lathi, Pramod was
having Lathi, Ramsuresh was having mouser, Ramprakash was
having 12 bore, Ramkhiladi was having 12 bore, Damodar was
having axe and Santosh was having lathi. His son fell down. When
he went near him, Damodar assaulted him with Lathi, Hom Singh
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
assaulted him with Lathi, Pramod assaulted him with Lathi. All the
accused fired gunshots which were passed through over his head.
After sustaining gunshot injury to Gopali, he was brought to Pavai
Police Station but on the way he succumbed to the said injury.
13.1 During cross-examination, he has stated that Surendra is his
son. He admitted that Surendra was defeated in election against Baba
Hanumandas. He admitted that election was held before this incident.
He admitted that the land was sold by Hanumandas to Baby and
Baby sold the said land to the wife of Totaram, dispute took place on
the said land for which he filed objection. After defeat in election,
land was sold by Baby to the wife of Totaram. He denied that
Totaram used to cultivate the said land. He admitted that he disclosed
in his police statement that on the date of incident they were tilling
their field. If police did not mention this fact in his statement, he can
not tell the reason. He admitted that accused never stopped him to
cultivate the field of Bajaria Wala. He denied that Totaram forcibly
took him to cultivate his land and due to which Surendra, Koke,
Manish, Rajkumar had also gone alongwith him. He does not know
that how he dictated in his statement that they had come there to
cultivate the land. He disclosed in his police statement that all the
accused fired gunshots which were passed through over his head. If
Police did not mention this fact in his statement, he can not tell the
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
reason.
13.2 This witness did not disclose the Police that when he and
Narendra ran to save Gopali, bullet hit on the right side of head. He
did not disclose the police in his statement Ex.D-4 that due to
firearm, injury was inflicted on the head of Narendra. On being asked
from the witness that that all the accused assaulted you by means of
Axe and Lathi, he told that all the accused assaulted with Axe and
Lathi. Gopali on the said date of incident was tilling the field by
Tractor. Since police did not ask him, he did not disclose the police
that Tractor is of one Manoj and at the time of incident, the said
tractor was parked in the field and after the incident also. When
police arrived at Village for preparing spot map and conducting
inquiry he was not present in the village. He admitted that father of
Hanumandas was murdered. Hanumandas himself murdered his
father. He admitted that in regard to the said incident case was
registered against his son and relatives. He denied that on account of
tilling of field in the darkness, he did not see the person who fired.
He denied that to sack Hanumandas from the post of Sarpanch and to
remove him from the village, a false complaint has been registered
against him in regard to inflicting gunshot to his son. Despite
sustaining injuries, he did not fall down. He was bandaging the foot
of Ramgopal since he sustained gunshot injury. First of all, his son
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
Gopali sustained injuries. In spite of sustaining injuries to Gopali, he
did not run away. He could not say that how much time he stayed at
the spot.
13.3 This witness admitted that since election of Gram Panchayat,
there are parties in the village. Satyaprakash is son of Ramdutt and
Damodar is real brother of Santosh. Damodar and Santosh are cousin
brother of Ramdutt. He admitted that when he tried to save Narendra,
bullet did not hit on his head and the head of Narendra. He has
mentioned in his police statement that he and Narendra were
assaulted with Lathi and axe by all of them. On being analyzed his
statement, this fact was found mentioned in his statement Ex.D-4. He
does not know as to whether he had given documents related to the
said field to the police or not. He disclosed the police in regard to
injuries sustained by him and Gopali in the Hospital and not at the
place of incident. He does not know what is the number of Marshall.
There were 10-12 persons sitting in the vehicle, but he can not tell
the accurate number. On hearing the sound of firing of bullet, he got
frightened. He denied that the land which was being tilled by Gopali
does not belong to him. He did not provide any document in regard
to ownership of the said land. He denied that since he was having
grudge with the accused due to dispute of land, accused has been
falsely implicated by him.
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
14. As per Guddan @ Gokul Prasad (PW-4) he knows all the
accused. On 03.07.2007 he was over the mound (medh) of his field,
Koke, Manish, Shashikant were also present there. Ramgopal was
driving tractor. At that time, at about 6 pm, when his father
Ramlakhan and brother Narendra were collecting stubble of mustard
in the field, one vehicle i.e. Tata Sumo Marshal came there. The said
vehicle was stopped near the tube-well of Ramprakash. Accused
Hanumandas, Totaram, Munna, Rambaran, Pramod, Homsingh,
Ramdutt, Satyaprakash, Ramsuresh, Ramprakash, Damodar, Santosh
came out from the said vehicle. Accused Hanumandas was having
315 bore gun, Totaram was having mouser gun, Munna was having a
12 bore double barrel gun, Rambaran was having mouser gun,
Pramod was having 12 bore double barrel gun, Hom Singh was
having Lathi, Ramdutt was having mouser gun, Satyaprakash was
having 12 bore gun, Ramsuresh was having mouser gun,
Ramprakash was having 12 bore, Damodar was having axe and
Santosh was having Lathi.
14.1 Having come out from the said vehicle, all the accused came
towards tractor. Accused Munna and Pramod stopped the tractor by
firing, Gopali switched off the engine of tractor and when he got
down from the said tractor, Baba Hanumandas fired on him which hit
on his right leg below the abdomen. Narendra and his father were
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
surrounded by the accused and they assaulted them by Lathi, axe and
handle of axe, due to which they sustained several injuries. Injuries
were inflicted on the nose, head and several parts of the body of his
father and on the head of Narendra. When Narendra and his father
Ramlakhan shouted, they reached there. Narendra and his father
Ramlakhan fell down. Bullets were passing through over their heads.
When all of them started shouting, accused by sitting in vehicle fled
away.
14.2 During cross-examination, he has stated that he knows Rajesh.
He does not know that before 1994 his brother Surendra was tried in
regard to death of Rajesh. He has admitted that in the FIR, he and
Narendra were arrayed as accused. He voluntarily said that he was
exonerated in the said case. He admitted that a case was registered
against his father at Police Station Sajeev in regard to giving shelter
to dacoits. He voluntarily said that his father was exonerated in the
said case. He denied that before the said incident, a case in regard to
commiting Marpeet with Constable Vinod Singh was registered
against him at Police Station Pawai. He admitted that against his
brother Gopali a case was registered in connection with death of son
of Ramdulare. He voluntarily said his brother was exonerated in the
said case. He denied that before the incident, they had previous
animosity with many peoples. He denied that dispute took place on
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
the land which was sold by Hanumandas to Baby and thereafter
Baby sold it to Shanti Bai. He denied that at the time of incident they
were tilling that field. He admitted that Hanumandas contested
election, but denied that they had any grudge with him.
14.3 He admitted that in his Police statement (Ex.D-2) he did not
say that "since the election they are keeping enmity with
Hanumandas and Baba Hanumandas sold the land which belongs to
temple and executed sale-deed of the said land and they were tilling
the field which was sold by Hanumandas". He admitted that in his
statement (Ex.D-2) he revealed that at the time of incident he was
tilling his field, if this fact is not mentioned in his statement, he can
not tell the reason. He denied that at the place where mound (medh)
of the field of Ramdulare and Ramsiya is situated, dispute took
place. He was sitting on the field of Chintamani. Since he is illiterate,
he has no knowledge in regard to direction. Surendra had brought
water. He did not tell the name of Surendra from portion "A" to "A"
of his cross-examination. He voluntarily said that he had told the
name of other three persons. Accused Munna and Pramod stopped
the tractor by firing. He had revealed this in his Police Statement
Ex.D-2. Gopali switched off the engine of tractor. He had revealed
this in his Police Statement (Ex.D-2). He told the police that his
father Ramlakhan and Narendra were assaulted by the butt of pistol.
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In his police Statement (Ex.D-2) he told that bullets were passing
through over their heads but "when his father ran to save his brother,
bullet hit on his head", how this fact is mentioned in his statement
ExD-2, he does not know. All the persons did not tell about Lathi
and Axe, how this fact is mentioned in his statement Ex.D-2 he does
not know. He does not know that at what time police reached the
village, however, he himself stated that he brought Gopali to
hospital. Police met him in the hospital. He told the police that the
incident was caused by accused persons and he saw the incident. He
narrated the said incident to the police at 5-6 pm in the hospital. He
was having license of 315 mouser gun. He himself stated that the
said gun has been deposited in Police Station. He does not know that
in which offence the said gun has been deposited. Gopali was alone
while driving the tractor. He did not see whether bullet hit the tractor
or not? After hitting one bullet to his brother, accused fired in the air.
He himself admitted that bullets passed through over the head of his
brother and father. He denied that since the accused did not give
money to his father, he has falsely implicated them. Munna alias
Ramnaresh is son of Totaram. He does not know who was driving
Tata Sumo.
14.4 He himself admitted that when the accused came out from the
said vehicle, he realized that the said accused are coming towards
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
him. He does not know as to which accused was firing, but someone
ordered to stop the tractor. He was not driving the tractor, however
he himself admitted that he was sitting in the tractor. Gopali was
driving the tractor of Raju Purohit. He could not tell as to whether he
mentioned the said fact in his statement Ex.D-2 that all the accused
while using firearm came out from the vehicle. Having come near
Gopali, accused fired on him at a distance of 10-12 foot. He could
not tell that how much bullets were fired by the accused. Thereafter
he said that it may be 30-40. When bullet hit Gopali he was standing
at a distance of 30 steps, but accused did not fire on him. When his
father and brother shouted, he had gone to the place of incident.
When bullets were passing through over his head, he kneeled down.
He has stated in his statement (Ex.D-2) that bullets were passing
through over his head and head of his father. He has not sustained
any injury but he shouted. He does not oppose in regard to selling of
land by Hanumandas, however, he admitted that he filed an
application in Tahsil Court because the said land was his ancestral
land. His elder brother opposed because the said land belonged to
temple. He denied that since there is a dispute in regard to land, they
have falsely implicated the accused. He denied that Totaram,
Rambaran, Hotsingh, Ramnaresh and Pramod were present at the
place of incident. He does not know that Ramdutt filed a civil case in
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
regard to land dispute against his father in Mahgaon Court.
14.5 He denied that due to election rivalry they are having grudge
with accused. He in his statement Ex.D-2 did not disclose the fact
that accused surrounded his father and brother. He disclosed the said
fact for the first time before the Court. Injuries were inflicted on
nose, head and other parts of the body of his father and on the head
of Narendra, he mentioned this fact in his statement. If police did not
mention this in his statement, he could not tell. He denied that he is
relative of Koke, but he belongs to his caste. Rajkumar is his cousin
brother. He does not know that he is a dacoit who has an award of
Rs.25,000/- on his head. He denied that on the date of incident he
was absconded. He admitted that on the report of Phoolsahay Jatav
before this incident, a case against his father and 11 others was
registered. He himself admitted that they were exonerated in the said
case. He denied that Surendra made statement against them in the
said case. He denied that Damodar and Santosh made statement
against his father in the said case. He denied that he has been
introduced as a false eye-witness and he has made false statement in
the present case since he is having grudge with the accused.
14.6 This witness (PW-4) has reached the spot along with Suresh,
Shashikant & Manish and did not sustain any injury in the aforesaid
incident. He is brother of the deceased and has been falsely
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
introduced as eye-witness of the case.
15. As per Manish (PW-8), he knows the accused and deceased
Gopali. On 03.07.2007 when he was on the mound (medh) of field,
Gopali was tilling the said field. His father Ramlakhan, Guddan,
Sashikant, Surendra were also present there. One vehicle i.e. Tata
Sumo Marshal came there. The said vehicle was stopped near the
tube-well of Ramprakash, 10-12 persons came out from the said
vehicle and went towards Gopali. He knows all 10-12 persons whose
names were Hanumandas, Totaram, Munna, Rambaran, Pramod,
Homsingh, Ramdutt, Satyaprakash, Ramswaroop, Ramprakash,
Damodar, Santosh. All accused were firing. When Gopali came down
from the tractor, Hanumandas fired on him. Bullet hit below the
abdomen of Gopali. Accused having surrounded Ramlakhan and
Narendra committed marpeet with them. When they ran to save
them, accused hurled abuses to them. He himself admitted that he
fell down and afterwards accused having sit in the said vehicle fled
away. Gopali died on the spot. Injured were sent to hospital. They got
treatment at Bhind Hospital.
15.1. During cross-examination, he has stated that he does not know
that after lapse of how much time police recorded his statement.
Incident is of 03.07.2007. On 04.09.2007 his statement was recorded.
He denied that after listening sound of bullet, he reached the spot
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
along with Shashikant, Koke and Kamlesh. He denied that Tata
Sumo vehicle was standing there before his reaching. He admitted
himself that after his reaching vehicle came on the spot. He denied
that when he reached, firing was going on. He admitted himself that
he was already present at the field. Pallets hit Ramnaresh and his
father. He did not mention this fact in his statement (Ex.D-5). He did
not depose that Gopali died. How this fact has been mentioned in his
statement, he can not say. He did not disclose this fact in his
statement recorded before the Police, however, for the first time he
disclosed before the Court that at 7 pm when he was siting on the
mound of field, Gopali was driving the tractor. In his statement
Ex.D-5 he has stated that the vehicle Tata Sumo stopped near the
tube-well of Ramprakash, 10-12 persons came out from the said
vehicle and started firing indiscriminately and went towards Gopali.
When Gopali came down from the tractor, Hanumandas fired on him.
Bullet him below the abdomen.
15.2 This witness narrated in his statement Ex.D-5 that accused
having surrounded Ramlakhan and Narendra, committed Marpeet
with them. He admitted that he did not go to Bhind hospital. His
father and other members of family came on the next day of incident.
He denied that he did not see the incident. He denied that in front of
him Hanumandas did not fire gunshot on Gopali. He admitted that
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
before recording of his police statement, he did not disclose about the
incident to anyone. He admitted that before half an hour of the
incident he was sitting at the field. Gopali was also present alongwith
him. He did not disclose in his statement Ex.D-5 that since ten days
he is at the house of his brother-in-law Gopali. He admitted that all
the accused were firing bullets, if this fact is not mentioned in his
police statement, then he can not tell the reason. He does not know
that there was previous animosity between his brother-in-law and all
the accused. He denied that since his relative is having grudge with
the accused, he is giving false evidence against the accused.
15.3. The presence of Manish (PW-8) at the time & place of
occurrence appears to be highly doubtful because he is not found to
be trustworthy as in para 4 of his statement it has come on record that
witness belongs to village Ahno police Station Andori Tahsil Gohad.
The distance of said village from the place of occurrence is near
about 20-21 kms. Moreover this witness is a close relative of the
deceased because this witness has admitted in para 10 of his
statement that deceased was husband of his sister. Apart from this,
conduct of the witness is highly suspicious and in para 9 of his
statement this witness has deposed that he had not gone to Bhind
hospital. If this witness had been present on the spot, he would have
definitely gone to the hospital with brother of the deceased.
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
Moreover there are various material omissions and contradictions in
his statement, hence, statement of this witness is not acceptable.
16. As per Shashikant Sharma (PW-15), he had put his signature
on Safina form and Lash Panchayatnama. Before two years at about
6-7 pm, he was at a distance of two fields, he listened the noise of
bullet. He alongwith Manish and Tota ran towards the place of
incident. At that time, firearm injury was caused to Gopali. He did
not see the accused who caused firearm injury. He did not see the
accused at the place of incident but saw some persons running away.
16.1 During cross-examination, he admitted that when he reached
the place of incident, he saw that Hanumandas Baba, Munna Gurjar,
Rambaran Gurjar, son of Rambaran, Ramdutt Sharma, Ramprakash
Sharma, Ramsuresh Shram, Satyaprakash Sharma, Totaram Gurjar
were having guns and Hom Singh and Santosh were having Lathi
and Damodar was having axe. He did not reveal the police in his
statement Ex.P-39 that Hanumandas fired gunshot, how police
mentioned this fact in his statement, he can not tell. However, he
admitted that accused fired gunshot which hit Gopali and Narendra.
He did not disclose in his statement Ex.P-39 that Santosh and
Damodar assaulted with Lathi and Axe, how this fact is mentioned in
his statement, he can not say. Due to gunshot injury, Gopali fell
down, then accused fled away. He went to Bhind Hospital. He knows
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
all the accused. He did not give his statement in the hospital. His
statement was recorded after two months. He did not disclose anyone
that who got down from the vehicle Tata Sumo. He admitted that he
saw the accused firing gunshot and due to which stampede occurred
and villagers reached the spot. However he himself admitted that
four persons of village reached the spot. He disclosed in his
statement that he was at a distance of two fields from where he
listened the noise of bullet. If this fact is not mentioned in his police
statement, he can not tell the reason. He does not know owner of the
fields, which were situated near the field which was being tilled by
Gopali. When he reached the place of incident, there was little
brightness, 4-5 persons of village were present at the place of
incident. However, he himself admitted that after taking Gopali, he
had gone. He admitted that no incident took place before him. He
denied that since he belongs to the family of Ramlakhan, he is giving
false evidence.
17. Surendra Sharma (PW-5) has stated that on 3rd July, 2007 he
was ploughing his field. His father Ramlakshin, brothers Ramgopal
and Narendra were there. Gopali was driving tractor. His father
Ramlakshin and Narendra were collecting stubble of mustard. His
brother was ploughing the field. In the evening at about 6 one Tata
Sumo Marshal vehicle came and stopped near well of Ramprakash.
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
Ramdatt, Hamunmandas, Totaram, Satyaprakash, Ramsuresh,
Ramprakash, Damodar, Santosh, Rambaran, Munna, Homesingh,
Pramod got down and by firing came towards them and surrounded
the tractor, then his brother stopped the tractor. They started firing
from all directions, they became frightened. His brother Ramgopal
sustained gunshot below the stomach fired by Hamuman. At that
time, Ramdatt was having 315 bore mouser, Satyaprakash 12 bore
gun, Ramsuresh Mouser, Ramprakash 12 bore gun, Damodar axe,
Santosh Lathi, Homesingh Lathi, Munna 12 bore double barrel gun,
Rambaran mouser gun and Totaram was having mouser gun. His
father and Narendra also received injuries in the incident. When they
cried, he went there. Accused persons committed Marpeet of
Ramlakhan and Naresh by butt of gun and Lathi and axe. Because of
their firing, he laid down on the ground. On making hue and cry by
them, some persons reached there, then accused persons ran away.
He stated that his predecessors donated the land to temple of
Hanumanji. Earlier Vijayramdas was Pujari of temple, thereafter
Nathuramdas and then Hanumandas became Pujari of the temple. By
manipulating documents, Hanumandas became Bhumiswami of the
said land. Hanumandas sold the land to one widow and she sold it to
wife of Totaram, namely Shantibai. When they came to know, they
filed appeal before the SDM, and therefore, dispute arose. He himself
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
stated that before one month, gunshot was fired at him.
17.1 During cross-examination, he admitted that Munna @
Ramnaresh, Totaram, Ramvaran, Homesingh and Pramod belong to
one family. Gopali was also called as Ramgopal and he was killed in
the incident. He admitted that where Ramgopal was ploughing, he
was not present there. He was coming by taking water. His father and
brother Narendra were at the field and collecting stubble of mustard.
After taking water from the home, he went to the field at 6. He did
not find any Tata Sumo vehicle in the way. He saw Tata Sumo
vehicle from the distance of 200-300 meter and it stopped at the tube
well of Ramprakash. He saw the accused persons when they were
coming after getting down from the vehicle by firing. At that time,
Gopali was on tractor at a distance of 20-25 steps away. He admitted
that Santosh did not fire gunshot. He was carrying Lathi. There was
also some contradiction in regard to firing by Homesingh and
Pramod. He admitted that when his brother Gopali sustained gunshot
Narendra was at a distance of 10-15 steps and he was at a distance of
40-50 steps from Gopali. When he reached he saw that accused
persons were committing Marpeet of Ramlakshan and his brother
Narendra by butt of gun, Lathi and axe. If this fact is not mentioned
in Ex.D/3, he cannot say anything.
17.2 Distance between Harlal Ka Pura and place of incident is 200-
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
300 meter. After Gopali received gunshot when they cried, persons
from Harlal Ka Pura reached the place of incident, then accused
persons ran away. He also mentioned this fact in his statement
Ex.D/3, but if it is not written in it he cannot assign any reason. He
denied that the land, which was being ploughed by deceased Gopali,
is not of their ownership. He denied that Ramvaran was not present
at the time of incident and was admitted in hospital from 30.6.2007
to 5.7.2007. He denied that land, which was being ploughed by his
brother Gopali, was purchased by Totaram in the name of his wife.
He does not want that Totaram purchase said land. He wants that said
land remains with temple. He denied that he is falsely implicating the
accused persons.
17.3 This witness further stated in his cross-examination that the
tractor from which they were ploughing the field is of Raju Pirohit.
Gopali did not went alone along with tractor, along with him, his
father and younger brother Narendra also went to the field. They
went to field at about 6 and after half an hour he reached the spot. He
heard shouting of his brother Narendra that Gopali has sustained
gunshot, at that time, he was lying in the field of Shrikrishna Vyas at
a distance of 20-25 steps. He admitted that Santosh and Damodar did
not have guns and they did not make any fire. When this witness was
asked that no report was lodged on the date of incident, he replied
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
that doctor called the police, but on that day he did not give his
statement to the police. One month before gunshot was caused to him
and he lodged the report in regard to this incident against
Hanumandas and Ramdatt at police Station Kotwali. He admitted
that no challan was filed in this case, but he denied that by inflicting
injury to himself, he lodged a false report. He admitted that he did
not went with Gopali for ploughing the field. He went there after
taking water. He denied that he did not present at the spot at the time
of incident and came there later on.
17.4. This witness has specifically admitted in para 4 of his
statement that he has not seen the actual person firing with gun on
the deceased. Moreover this witness does not reside in the village. In
para 5 of the statement, it has come on record that when he arrived at
the spot 4 or 5 persons of the village were present there, but they
were not examined by the prosecution. On close scrutiny of the
statement, there is no hesitation in arriving at that this witness is not a
eye-witness of the incident. His evidence is vague and cryptic.
18. Kamlendra Singh Kushwah (PW-14) has stated that on
3.7.2007 he was posted as Head Constable at police Station, City
Kotwali, Bhind. On the said date Head Constable Rajkumar gave one
Dehati Nalishi to him, on the basis of which, he registered FIR Crime
No.0/2007 for the offence punishable under Sections 302, 307, 147,
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
148, 149 of IPC which is exhibited as Ex.P/36. The same bears his
signatures. During cross-examination, he denied that Head Constable
Rajkumar did not give any Dehati Nalishi to him and in collusion
with SHO, police Station, Pavai, he prepared Dehati Nalishi and FIR
(Ex.P/36) later on.
19. B.S.Jadaun (PW-11) has stated that on 4.7.2007 he was posted
at Station House Officer at police Station Pavai. On the basis of
Dehati Nalishi, he registered FIR bearing Crime No.34/2007 at
police Station, Pavai, against accused Hanumandas, Totaram, Munna
Gurjar, Ramvaran Gurjar, Son of Ramvaran, Ramdatt Sharma,
Satyaprakash Sharma, Ramsuresh Sharma, Ramprakash Sharma,
Santosh Sharma and Damodar Sharma. He also recorded Merg
intimation No.4/2007 vide Ex.P/29 which bears his signatures. On
the same day after reaching village Dhidhona at the instance of
Narendra Sharma he prepared stop map (Ex.P/13). On the same day,
he took the statements of Narendra Sharma, Surendra Sharma and
Guddan Sharma as narrated by them. On 8.7.2007 he took statement
of Ramlakhan Sharma @ Raklakshan. On 9.7.2007 he arrested
accused Munna @ Ramnaresh Gurjar vide Ex.P/1. On the same day,
he arrested Ramprakash Sharma, Santosh Sharma and Homesingh
Gurjar vide Ex.P/2, Ex.P/3 and Ex.P./5 which bears his signatures.
He prepared memorandum of aforesaid accused vide Ex.P/5, Ex.P/6,
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
Ex.P/7 and Ex.P/8. On the basis of memorandum of Homesingh and
Santosh Sharma one Lathi each has been seized from them vide
Ex.P/9 and Ex.P/10. On 23.7.2007 he arrested accused Damodar
Sharma vide arrest memo Ex.P/18 and one axe has been seized from
his possession vide Ex.P/17. On 27.7.2007 he arrested accused
Ramvaran Singh vide arrest memo Ex.P/30 and from his possession
one 315 bore gun, two live cartridges along with photocopy of
licence have been seized vide seizure memo Ex.P/31. Earlier on
4.7.2007 in presence of witnesses he seized plain and blood stained
soil along with empty cartridges of 12 bore and 315 bore vide seizure
memo Ex.P/14. He sent the seized weapons, plain and blood stained
soil and clothes of deceased to Forensic Science Laboratory, Sagar
for examination and the report of FSL, Sagar, is Ex.P/32. He
admitted that in Sanha No.78 dated 4.7.2007 there is mention of
sending Munna Singh and Homsingh to the hospital for examination
and their MLC is exhibited as Ex.D/7. He himself stated that
Homesingh and Munna reached police Station in injured condition. It
is true that in Sanha No.65 (Ex.D/9) there is mention of sending both
the injured to hospital for examination and also departure of SHO,
Surpara towards place of incident. How they sustained injuries, in
this regard he does not have any information. During investigation,
he came to know that during incident they sustained injury, but who
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
caused injury to them it did not come out. He did not take their
statement, he interrogated them.
19.1 This witness further stated that during investigation he
investigated the fact that accused persons came from Tata Sumo, but
no information about its driver, colour could be known. He denied
that accused Ramsuresh, Ramprakash and Hanumandas have not
committed the incident and he in collusion with complainant party
has falsely implicated them.
20. Dr.J.P.S.Kushwah (PW-2) has stated that on 4.7.2007 he was
deputed on emergency duty at District Hospital, Bhind. On the said
date, he conducted postmortem of deceased Ramgopal and found
following external injuries:-
"(i) Gunshot/wound of entry -Lacerated wound
of about 1/2" diameter present over right thigh
inner part medially just above the right patella
upper border with inverted margins.
(ii) Gunshot wound/ wound of exit- Lacerated
wound over right thigh lower part of size 8"x 4"
x lacerated with fracture of right femur bone.
Margins everted. "
As per the opinion of the doctor the cause of death is gunshot injury
leading to fracture of right femur with injury to blood vessels of right
thigh leading to excessive bleeding and death within 6-12 hours of
postmortem. Death was homicidal in nature and mode of death is
syncope. During his cross-examination, no discrepancy has been
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
carved out.
21. Dr.S.C.Gupta (PW-13) has stated that on 3.7.2007 he deputed
on emergency duty at District Hospital, Bhind. On the said date,
Ramlakshan son of Harnayan was brought before him for
examination. He found following injuries on his person:-
"1. Lacerated wound 1 ½ cm x 1 ½ cm x 1 cm placed at
left leg upper 1/3rd. Margin irregular. Fresh blood
present.
2. Incised wound 3 cm x ½ cm x bone deep placed at
right parietal region. Obliquely placed. Margin regular.
3. Lacerated wound 1 ½ x 1 cm placed at right cheek.
4. Lacerated wound 1 cm x ½ cm x ½ cm placed at right
side of nose. Margin irregular.
As per the opinion of the doctor, injury No.2 was caused by hard and
sharp object and injuries No.1, 3 and 4 were caused by hard and
blunt object. He advised for x-ray of head and left leg. The injuries
were caused within 24 hours of examination.
21.1 On the same day, he also examined Narendra and found
following injuries on his person:-
"1. Incised wound 4 cm x ½ cm x bone deep placed at
left side of occipital region. Margin regular.
2. Lacerated wound 3 cm x ½ cm x bone deep placed at
occipital region. Margin irregular.
3. Lacerated wound 2 cm x 1/3 cm x bone deep placed at
left parietal region. Margin irregular.
4. Abrasion 3 cm x 2 cm placed at right forearm middle
1/3rd."
As per the opinion of the doctor, injury No.1 was caused by hard and
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
sharp object and injuries No.2, 3 and 4 were caused by hard and
blunt object. For ascertaining the nature of injuries, he advised for x-
ray. The injuries were caused within 24 hours of examination. During
cross-examination, he stated that as no fracture was found in x-ray, it
can be presumed that injuries are simple in nature. He admitted that
injuries mentioned in Ex.P/35 may come due to falling on stubble of
mustard or sharp object. He admitted that in regard to the injuries
mentioned in Ex.P/34 and Ex.P/35 no query was made by the police.
22. V.P.Dwivedi (PW-10) has stated that on 14.9.2007 he was
posted at police Station Pavai as Station House Officer. On the said
date, during investigation of crime No.34/2007 under Sections 302,
307, 147, 148, 149, 324, he recorded the statements of witnesses
Manish, Shashikant and Kamlesh as narrated by them. Thereafter on
18.9.2007 he arrested Totaram Gurjar vide arrest memo Ex.P/18
which bears his signatures at "A" to "A" part. On the said date, he
seized 315 bore gun from accused Totaram vide seizure memo
Ex.P/19. Thereafter, on 1.10.2007 he arrested accused Satyaprakash
Sharma, Hanumandas Baba, Ramdatt Sharma vide Ex.P/20, Ex.P/21
and Ex.P/22 which bears his signatures. On the said date, one 315
bore rifle from accused Ramdatt Sharma, one 315 bore rifle from
accused Hanumandas Baba and one single barrel gun from accused
Satyaprakash Sharma have been seized vide seizure memo Ex.P/23
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
to Ex.P/25. On 3.10.2007 he arrested accused Pramod Gurjar vide
arrest memo Ex.P/26 and searched his house, Panchnama to this
effect was made vide Ex.P/27.
22.1 During cross-examination, this witness admitted that on the
date of incident he was not posted at police Station Pavai. He
admitted that the gun which was seized from Baba Hanumandas was
his licensee gun. He further admitted that against the complainant
and deceased several cases were registered at the police Station. He
investigated about the criminal antecedents of deceased and his
family members. He admitted that during investigation he did not go
to the spot. Witness Manish in Ex.D/5 has not stated that Tata sumo
vehicle stopped near tube well and 10-12 persons alighted from the
said vehicle and started firing. This witness also did not inform that
after alighting from the vehicle accused persons went towards the
place where deceased Gopali was ploughing the field by tractor. This
witness also did not inform in Ex.D/5 that when Gopali alighted from
the tractor, Hanumandas Baba fired at him which him below his
stomach. He also did not inform that accused persons after
surrounding Narendra and Ramlakhan committed Marpeet with
them. He explained that he only told that accused persons committed
Marpeet with Narendra and Ramlakhan. He admitted that Rajnarayan
and Rajkumar are nephews (Bhanje) of Ramlakhan and a reward of
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
Rs.25,000/- each was declared on them. It is true that in regard to
giving shelter to them, case has been registered against complainant
Narendra, witness Surendra and Ramlakhan. He had taken statements
of Manish, Shashikant and Kamlesh on 14.9.2007 and not before
that. They did not take him to the place from where they saw the
incident. Witness Manish did not tell in his statement that all the
accused were firing. Witness Manish stated during his police
statement that he also received injuries which was written by him. He
admitted that 12 bore licencee gun of Satyaprakash has been seized
by him. He denied that he detained accused Ramdatt and
Satyaprakash two days before at the police Station along with
weapons and later on he arrested them and prepared seizure memo.
He admitted that wife of accused Damodar, namely Annapurna
lodged a report in regard to loot against complainant party which was
registered. He denied that in collusion with complainant party he has
prepared a false case against the accused.
23. Ramhet (PW-1) has stated that he does know Munna Gurjar,
Ramprakash Sharma, Santosh Sharma and Homesingh Gurjar. No
seizure was made by the police from the aforesaid accused in front of
him. He was declared hostile and leading questions were put to him.
During which, he admitted his signatures on arrest memos Ex.P/1,
Ex.P/2, Ex.P/3 and Ex.P/4. He also admitted his signatures on
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
memorandums given by Munna, Ramprakash, Santosh and
Homesingh (Ex.P/5, Ex.P/6, Ex.P/7 and Ex.P/8) and seizure memo
Ex.P/9 and Ex.P/10. During cross-examination, he stated that he
signed the documents at the police Station on the instructions of
SHO. He does not know about the contents of the documents.
24. Mahesh Kumar Sharma (PW-7) is the witness of arrest memo
(Ex.P/15) and seizure memo (Ex.P/16). He has not supported the
prosecution case and declared hostile.
25. Haribabu Sharma (PW-9) is a witness of seizure memo
(Ex.P/17) and arrest memo (Ex.P/18). He also has not supported the
prosecution case and declared hostile.
26. Ramprakash (PW-12) has stated that on 4.7.2007 he was
posted as Constable at police Station, Pavai. On the said date
Constable Jitendra Singh brought one sealed Potli from District
Hospital, Bhind, containing clothes of the deceased along with
sample seal and handed over the same to Head Constable Ramautar
Rathore at the police Station. It was seized before him vide seizure
memo Ex.P/33.
27. Dr. Dharmveer Dinkar (DW-1) has stated that on 24.11.2005
he was posted as Medical Officer in PHC, Guishar. He has brought
record of the hospital from 30.6.2007 to 5.7.2007. He specifically
stated that certificate Ex.D/11 was not issued by him. He further
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
stated that they only admit the patient for one day and if someone
requires longer treatment, then they refer him to Gohad or Bhind.
Ex.D/11 is a certificate allegedly issued by Dr. D.V.Dinkar PHC,
Guishar certifying that appellant Rambaran son of Gambhir Singh
was admitted their from 30.6.2007 to 5.7.2007. In original register
page No.92 (Ex.D/12) there are entries from 1791 to 1799. There are
some overwriting on the same and in entry No.1798 there is mention
of Rambaran Singh son of Gambhir Singh resident of Girgaon. This
witness has stated that said entry was made by Compounder and not
by him. He admitted that on the said date Rambaran would have
come in the hospital for treatment, and therefore, there is entry of his
name in Ex.D/12. He denied that certificate of Ex.D/11 was issued by
him.
28. Dataram (DW-2) has stated that he is resident of Girgaon. He
knows appellant Rambaran son of Gambhir Singh. He is his
neighbour. On 30.6.2007 Rambaran was ill and he took him to
Government Hospital, Guishar. During cross-examination, he stated
that he is not literate and he cannot say that from which date to which
date appellant Rambaran remained admitted in the hospital. He
denied that as Rambaran is son of his Bua, he is giving false
evidence.
29. Dr.J.P.S.Kushwah (DW-3) has stated that on 4.7.2007 he was
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
deputed in emergency duty at District Hospital, Bhind. On the said
date Homesingh son of Gambhir Singh was brought before him for
examination. He found following injuries on his person:-
1. One lacerated wound over right side of head of size
3x 1 cm
2. One abrasion at the second finger of right hand of
size 1 x ¼ cm
He was complaining of pain in chest. As per the opinion of the
doctor, injuries are simple in nature and caused within 24 hours of
examination. On the said date, he also examined Munnasingh son of
Totaram and found following injuries on his person:=
1. Lacerated wound over right side of head of size 3 x
½ x ½".
2. Contusion at right elbow.
Both the injuries were caused by hard and blunt object. For
ascertaining the nature of injuries x-ray of head and right elbow was
performed.
30. From the aforesaid analysis of the witnesses, it is clear that
except Narendra Sharma (PW-3) and Ramlaxin @ Ramlakhan (PW-
6), who are brother and father of the deceased, all other witnesses who
have been examined in the case as eye-witnesses have reached the
spot on hearing shouting that Gopali has sustained gunshot. Narendra
Sharma (PW-3) in para 18 of his cross-examination has specifically
stated that Suresh, Guddan, Shashikant and Manish were at the mound
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
of field at Bazariya and when they came, the accused persons ran
away. Ramlaxin @ Ramlakhan (PW-6) in para 15 page No.210 of the
paper-book has stated that when Gopali sustained gunshot injury, at
that time, except Narendra and this witness, there was no other one at
that time. Thereafter, he has stated that after sustaining gunshot,
immediately others came there running. Surendra Sharma (PW-5) also
reached the spot later on. Surendra Sharma in para 16 of his statement
has stated that when he heard crying of Narendra that Gopali has
sustained gunshot injury, he was lying on the field of Shrikrishna Vyas
at a distance of 20-25 steps. Thus, it is clear that except witness
Narendra Sharma (PW-3) and Ramlaxmin @ Ramlakhan (PW-6), who
also received injuries in the incident, there is no other witness in the
case who witnessed the incident of firing on the deceased.
31. Narendra Sharma (PW-3) has stated that all the accused came
carrying respective weapons in Tata Sumo vehicle and started firing.
Munna and Homesingh stopped Ramgopal who was ploughing the
field by tractor and then all the accused started firing on him. Gunshot
fired by Hanumandas hit Ramgopal below his stomach. Santosh,
Damodar and Homesingh by Lathi and axe committed Marpeet of this
witness and his father Ramlakhan. Similar is the statement of
Ramlakhan (PW-6). He further stated that when his son fell down and
he tried to reach near him, Damodar, Santosh, Homesingh and Pramod
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
caused injuries to him by Lathi and axe. Thereafter, he stated that all
the accused fired gunshots which passed through over his head. Story
put forth by the prosecution that witnesses Narendra (PW-3), Guddan
@ Gokulprasad (PW-4) and Surendra Sharma (PW-5) all are brothers
of the deceased and Ramlakhan (PW-6) is father of the deceased.
Their evidence that accused persons namely Totaram, Ramdutt,
Satyaprakash, Ramsuresh, Ramprakash, Munna have also fired
several gunshots does not appear to be acceptable because as per the
statement of Dr. J.P.S. Kushwah (PW-2) deceased Ramgopal sustained
only one gunshot injury. Apart from this, other eye-witnesses did not
receive any gunshot injury. Therefore, it appears that other accused
persons, against whom the eye-witnesses have stated that they also
fired several gunshots during the incident, are falsely roped in the case
considering the fact that there was long previous enmity between the
complainant party and accused persons, coupled with the medical
report.
32. Now in the present case it is to be examined as to whether the
accused persons in the present case came at the spot with the common
object to kill deceased Gopali or not.
33. The Apex Court in the case of Bhargavan and others vs. State
of Kerala, (2004) 12 SCC 414 has observed in regard to common
object as under :-
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
"14. 'Common object' is different from a 'common
intention' as it does not require a prior concert and a
common meeting of minds before the attack. It is
enough if each has the same object in view and their
number is five or more and that they act as an assembly
to achieve that object. The 'common object' of an
assembly is to be ascertained from the acts and language
of the members composing it, and from a consideration
of all the surrounding circumstances. It may be gathered
from the course of conduct adopted by the members of
the assembly. What the common object of the unlawful
assembly is at a particular stage of the incident is
essentially a question of fact to be determined, keeping
in view the nature of the assembly, the arms carried by
the members, and the behaviour of the members at or
near the scene of the incident. It is not necessary under
law that in all cases of unlawful assembly, with an
unlawful common object, the same must be translated
into action or be successful. Under the Explanation to
Section 141, an assembly which was not unlawful when
it was assembled, may subsequently become unlawful.
It is not necessary that the intention or the purpose,
which is necessary to render an assembly an unlawful
one comes into existence at the outset. The time of
forming an unlawful intent is not material. An assembly
which, at its commencement or even for some time
thereafter, is lawful, may subsequently become
unlawful. In other words it can develop during the
course of incident at the spot co instanti.
15.Section 149, IPC consists of two parts. The first part
of the section means that the offence to be committed in
prosecution of the common object must be one which is
committed with a view to accomplish the common
object. In order that the offence may fall within the first
part, the offence must be connected immediately with
the common object of the unlawful assembly of which
the accused was member. Even if the offence committed
is not in direct prosecution of the common object of the
assembly, it may yet fall under Section 141, if it can be
held that the offence was such as the members knew
was likely to be committed and this is what is required
in the second part of the section. The purpose for which
the members of the assembly set out or desired to
achieve is the object. If the object desired by all the
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
members is the same, the knowledge that is the object
which is being pursued is shared by all the members and
they are in general agreement as to how it is to be
achieved and that is now the common object of the
assembly. An object is entertained in the human mind,
and it being merely a mental attitude, no direct evidence
can be available and, like intention, has generally to be
gathered from the act which the person commits and the
result therefrom. Though no hard and fast rule can be
laid down under the circumstances from which the
common object can be called out, it may reasonably be
collected from the nature of the assembly, arms it carries
and behaviour at or before or after the scene of incident.
The word 'knew' used in the second branch of the
section implies something more than a possibility and it
cannot be made to bear the sense of 'might have been
known'. Positive knowledge is necessary. When an
offence is committed in prosecution of the common
object, it would generally be an offence which the
members of the unlawful assembly knew was likely to
be committed in prosecution of the common object.
That, however, does not make the converse proposition
true; there may be cases which would come within the
second part but not within the first part. The distinction
between the two parts of Section 149 cannot be ignored
or obliterated. In every case is would be an issue to be
determined, whether the offence committed falls within
the first part or it was an offence such as the members of
the assembly knew to be likely to be committed in
prosecution of the common object and falls within the
second part. However, there may be cases which would
be within first offences committed in prosecution of the
common object would be generally, if not always, with
the second, namely, offences which the parties knew to
be likely committed in the prosecution of the common
object. (See Chikkarange Gowda and others v. State of
Mysore, AIR 1956 SC 731.)"
The Apex Court in the case of Baladin & others vs. State of Uttar
Pradesh, AIR 1956 SC 181 has held as under :-
"It is well settled that mere presence in an assembly
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
does not make such a person a member of an unlawful
assembly unless it is shown that he had done something
or omitted to do something which would make him a
member of an unlawful assembly, or unless the case
falls under Section 142 Indian Penal Code."
34. Surendra Sharma (PW-5) in para 10 of his cross-examination
has stated that his predecessors donated the land to temple of
Hanumanji. Earlier Vijayramdas was Pujari of temple, thereafter
Nathuramdas and then Hanumandas became Pujari of the temple. By
manipulating documents, Hanumandas became Bhumiswami of the
said land. Hanumandas sold the land to one widow and she sold it to
wife of Totaram, namely Shantibai. When they came to know, they
filed appeal before the SDM, and therefore, dispute arose. He himself
stated that before one month, gunshot was fired at him. Narendra
Sharma (PW-3) has stated in para 49 of his cross-examination that at
the time of preparation of spot map he told the police about the place
of incident as field at Bazariya, if the police has not written it in spot
map (Ex.P/13) he cannot give any reason. He further stated that land
of Totaram and their land at Bazariya are adjacent. Thus, there appears
to be some dispute of boundary also. It is also gathered from the
evidence of the witnesses that when deceased Gopali was ploughing
the said land, accused persons firstly came to him and put off the
engine by removing the key. As such from the above facts, it is clear
that the common object of the accused was to stop deceased Gopali to
plough the land. Thereafter on this point dispute arose between
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
accused on one side and deceased Gopali, complainant Narendra
Sharma and Ramlakhan (available at the spot at that time) on the
other, in which Hanumandas fired gunshot at deceased Gopali who
died in the incident and Narendra Sharma & Ramlakhan from the
complainant side and Homesingh and Munnasingh from the side of
the accused received injuries. Thus, in such circumstances, in the
considered opinion of this Court common object of other appellants
cannot be stretched to the extent that they shared common object with
accused Hanumandas to kill the deceased. There is no overt act of all
other appellants except appellants Santosh, Damodar and Pramod and
accused Homesingh, who were armed with Lathi & axe. They have
allegedly fired on the deceased and injured Narendra and Ramlakhan
by guns, but the bullets passed through over their heads. Here it is
also to be taken care of the fact that there is enmity between both the
parties, and therefore, there is possibility of false implication. It is also
settled principle of law that testimony of inimical witnesses has to be
considered with caution. The Apex Court in the case of Raju alias
Balachandran and others vs. State of Tamil Nadu, (2012) 12 SCC
701 has held in this regard as under in para 25 & 26 :
"25. In the present case, PW-5 Srinivasan is not only a
related and interested witness, but also someone who has
an enmity with the appellants. His evidence, therefore,
needs to be scrutinized with great care and caution.
26. In Dalip Singh v. State of Punjab, 1954 SCR 145 this
Court observed, without any generalization, that a related
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
witness would ordinarily speak the truth, but in the case
of an enmity there may be a tendency to drag in an
innocent person as an accused - each case has to be
considered on its own facts. This is what this Court had
to say:
"A witness is normally to be considered
independent unless he or she springs from
sources which are likely to be tainted and that
usually means unless the witness has cause,
such as enmity against the accused, to wish to
implicate him falsely. Ordinarily, a close
relative would be the last to screen the real
culprit and falsely implicate an innocent
person. It is true, when feelings run high and
there is personal cause for enmity, that there is
a tendency to drag in an innocent person
against whom a witness has a grudge along
with the guilty, but foundation must be laid for
such a criticism and the mere fact of
relationship far from being a foundation is
often a sure guarantee of truth. However, we
are not attempting any sweeping
generalisation. Each case must be judged on its
own facts. Our observations are only made to
combat what is so often put forward in cases
before us as a general rule of prudence. There
is no such general rule. Each case must be
limited to and be governed by its own facts."
35. The evidence of injured eye-witnesses Narendra Sharma (PW-
3) and Ramlakhan (PW-6) is consistent and supported by medical
evidence with regard to inflicting gunshot by Hanumandas to
deceased Gopali and with regard to inflicting injuries to them by Lathi
& axe, but their evidence with regard to other appellants, who were
armed with guns, that they also fired on deceased as well as on them,
but none of the bullets hit them does not corroborate from any other
evidence, and therefore, appears to be exaggeration considering the
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
fact of enmity between the parties. Therefore, these appellants deserve
benefit of doubt.
36. As per the evidence of injured Narendra Sharma and
Ramlakhan, appellants Santosh, Damodar and Pramod and accused
Homesingh were armed with axe and Lathi, but that cannot be termed
as deadly weapons as axe is an agricultural tool unless used as weapon
and carrying lathi (bamboo stick) is part of village life while involved
in agricultural activities. Please see the judgment of the Supreme
Court in the case of Jugat Ram vs. State of Chhattisgarh, (2020) 9
SCC 520 and Division Bench of Allahabad High Court in the case of
Ram Charan & Ors. Vs. State of U.P. decided on 23.4.2020 in
Criminal Appeal No.1164/2000. Therefore, on the basis of presence of
these accused persons armed with Lathi & axe, it cannot be held that
they had come at the place of incident (an agricultural field) prepared
with deadly weapons. Both the injured received lacerated and incised
wounds as per the report of the doctor which may come from Lathi
and axe. Thus, evidence of injured eye-witnesses that they were
beaten by appellants Santosh, Damodar and Pramod and accused
Homesingh by means of Lathi and axe is well supported by medical
evidence. Accused Homesingh has been acquitted by the trial Court
on the ground of enmity, but evidence of injured with regard to
causing injuries by this accused is well supported by medical
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
evidence.
37. In view of the aforesaid discussion, Criminal Appeal
Nos.212/2010, 219/2010 and 268/2010 are allowed to the extent that
conviction & sentence of appellants Ramprakash, Ramsuresh, Munna,
Ramvaran, Pramod Kumar, Totaram, Santosh and Damodar under
Sections 302/149, 148 & 324/149 of IPC is set aside. Appellants
Pramod, Santosh and Damodar are convicted under Section 324 of
IPC with one year RI.
Criminal Appeal No.285/2010 filed by Hanumandas Baba is
dismissed. However, he is convicted under Section 302 of IPC with
imprisonment for life & fine of Rs.500/-.
Criminal Appeal No.346/2016 filed by the State is partly
allowed and appellant Homesingh is convicted under Section 324 of
IPC with sentence of one year RI.
All the appellants are on bail. Appellant Hanumandas Baba @
Hemraj is directed to surrender before the trial Court on or before
25.4.2022 to serve remaining jail sentence, failing which trial Court
will be at liberty to issue arrest warrant against him.
Appellants Santosh, Damodar and Pramod and accused
Homesingh as discussed above have been convicted under Section
324 of IPC for one year. They are also directed to surrender before the
trial Court for serving jail sentence of one year if not already served
Cr.A. Nos.212/2010, 219/2010, 268/2010, 285/2010 & 346/2016
on or before 25.4.2022, failing which trial Court will be at liberty to
issue arrest warrant against them.
(G.S.Ahluwalia) (Deepak Kumar Agarwal)
Judge Judge
ojha/ms/-
MADHU
SOODAN
PRASAD
2022.04.12
16:36:40 +05'00'
