Madhya Pradesh High Court
Arjun vs The State Of Madhya Pradesh on 6 December, 2022
Author: Vijay Kumar Shukla
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)
ON THE 6th OF DECEMBER, 2022
CRIMINAL APPEAL No. 306 of 2013
BETWEEN:-
ANURAG @ ANNU S/O GOVIND BHAVSAR,
AGED ABOUT 24 YEARS, OCCUPATION: STUDENT
HATPURA BAZAR AGAR (MADHYA PRADESH)
.....APPELLANT
(SHRI GAURAV S. SHRIVASTAVA, LEARNED COUNSEL FOR THE
APPELLANT)
AND
THE STATE OF MADHYA PRADESH GOVT.
THRU. P.S. SUSNER DISTT. SHAJAPUR (MADHYA PRADESH)
.....RESPONDENT
(SHRI MUKESH KUMAWAT, LEARNED GOVERNMENT
ADVOCATE FOR RESPONDENT/STATE)
CRIMINAL APPEAL No. 379 of 2013
BETWEEN:-
APPU @ VIJENDRA S/O SHRI ASHOK BIDLA,
AGED ABOUT 24 YEARS, OCCUPATION: DRIVER
AMBEDKAR COLONY,. CHHAWANI AGAR,
DISTT. SHAJAPUR (MADHYA PRADESH)
.....APPELLANT
(SHRI GOURAV SHRIVASTAVA, LEARNED COUNSEL FOR THE
APPELLANT)
AND
THE STATE OF MADHYA PRADESH GOVT.
THRU. P.S. SUSNER DISTT. SHAJAPUR (MADHYA PRADESH)
.....RESPONDENT
(SHRI MUKESH KUMAWAT, LEARNED GOVERNMENT ADVOCATE FOR
RESPONDENT/STATE)
CRIMINAL APPEAL No. 391 of 2013
BETWEEN:-
ARJUN S/O SHYAMLAL DOUSI,
AGED ABOUT 25 YEARS, AYODHYA BASTI AGAR (MADHYA PRADESH)
.....APPELLANT
(SHRI GOURAV SHRIVASTAVA, LEARNED COUNSEL FOR THE
APPELLANT)
AND
THE STATE OF MADHYA PRADESH GOVT.
THRU. P.S. SUSNER DISTT. SHAJAPUR (MADHYA PRADESH)
.....RESPONDENT
(SHRI MUKESH KUMAWAT, LEARNED GOVERNMENT ADVOCATE FOR
THE RESPONDENT/STATE)
_____________________________________________________________________
Reserved on : 01/12/2022
Pronounced on : 06/12/2022
_____________________________________________________________________
This appeal having been heard and reserved for judgment, coming
on for pronouncement this day, HON'BLE SHRI JUSTICE VIJAY
KUMAR SHUKLA passed the following:
JUDGMENT
The appellants have preferred the present appeal under section 374
of the Cr.P.C against judgment and order dated 16.02.2013 passed in S.T.
No.143/2011 by Additional Sessions Judge, Agar District Shajapur
whereby the learned trial Court held the appellants guilty for the offence
punishable under Section 302/34 of IPC and awarded life imprisonment
with fine of Rs.1,000/- each with default stipulations. The appellant Appu
@ Vijendra has also been convicted under section 25 and 27 of the Arms
Act and sentenced to undergo 1 year and 3 years of RI with fine of
Rs.5,000/- and 1,000/- in respective count with default stipulation.
2. The facts of the case in brief are that the deceased Anil a Driver and
appellant Appu used to give the deceased work of driver. On 14.03.2011
at 11:00 AM mother of the deceased was sitting in her house, at that
time, co-accused Appu and one unknown boy came in her house and told
the deceased Anil to took some passengers to Shajapur in their vehicle.
On the way, the sister of the deceased Sapna who forgot her book of
Science, so she was returning home to take her book, at the time she saw
the appellant Appu driving the Pulser motorcycle and her brother was
sitting in middle and appellant Arjun was sitting pillion. Sandeep
Chouhan, brother of the deceased who was also coming home due to
stomach ache stated that at the medical shop, the deceased informed him
that the appellants are taking him to Zeerapur, so they should not wait for
him. He saw them in a car. On the same day, at about 10-11 PM, mobile
of Sapna rang but got missed and thereafter she tried to call back but the
mobile got switched off.
3. On 15.03.2011, Chokidar Balu, Sarpanch Mehta and Raju were
warming their hands in bone fire, at that time Nanuram Balai came and
told them that near the bridge, a dead body of a boy aged about 15-16
years was lying and blood was oozing from his stomach, head and
shoulder. The police registered Marg and after investigation found that
the appellant murdered the deceased Anil due to enmity.
4. The prosecution case is based on the testimony of three witnesses in
respect of last seen evidence of the deceased with the accused person,
PW 3 Santra Bai (mother of the deceased), PW 7 Sapna (sister of the
deceased) and PW 9 Sandeep (brother of the deceased). PW 3 Santra Bai
stated that on the date of incident, she was sitting in her house, at that
time appellant Appu @ Vijendra and one unknown boy came in her
house and told her son Anil that he was going Shajapur to drop certain
passengers and took Anil with their vehicle of red colour Pulsar. She
waited for the whole day for Anil but he did not come back. In the night
around 10-11 PM, call came on mobile. When her daughter Sapna picked
up the phone, the same was disconnected thereafter she tried to contact
Anil but the phone was switched off. The said fact was communicated to
Susner Thana, who had intimated them to Agar Thana and Agar Thana
informed her that some bill has been found in the name of her son Anil
and on the basis of the same informed her that son has been murdered.
She went to Susner and found dead body of her son lying there. There
was injuries on his forehead, legs and on stomach. The blood was oozing
out from the stomach. She recognized appellants Arjun and Appu in the
Court. PW/7 Sapna stated that she is sister of deceased. She forgot her
books of Science subject so she came back home for taking her books, at
that time she saw that appellant Appu driving motorcycle Pulsar and
between appellant Appu and Arjun, deceased brother was sitting on the
motorcycle. PW/9 Sandeep, who is brother of the deceased stated that he
came back from his school because his stomach was upset. The deceased
Anil told him that he was going with the appellant to Zeerapur and they
should not wait for him. In the night between 10-11 P.M, a call came on
his mobile and her sister Sapna picked up the said call but the same was
disconnected. Thereafter, her sister tried many times to contact her
brother but she could not contact. On the next morning, police had
informed him that bill has been found from the dead body, in which, the
name of the deceased and his number was mentioned and the dead body
was lying at Susner. Her mother had gone to the said place and
recognized the said body.
5. On the basis of memorandum statement of appellant Appu one 12
bore Katta (pistol), live cartridge was seized. The said Katta (pistol) was
sent for FSL examination and a report was received that the fire was
made from the said Katta which was seized on the memo of the appellant
Appu. One vehicle Pulsar was also seized on his memorandum. On the
basis of aforesaid disclosure statements, vide Exh. P-13 Katta, empty
cartridge and mobile of deceased were seized. On the disclosure
statement of appellant Arjun, Indica car was seized vide Exh. P-15 and
on the disclosure statement of appellant Anurag vide Exh. P-14, one
motorcycle was seized. There was no seizure of any weapon from
appellants Arjun and Anurag.
6. As per the disclosure statement of appellant Anurag Exh. P-10, all
the three accused persons alongwith deceased Anil were going in Indica
car. On the way, a dispute arose regarding money transaction between the
deceased and appellant Appu. Appellant Appu stopped the vehicle near a
culvert and deceased was taken out from the vehicle. Thereafter,
appellant Appu had fired on the stomach of deceased Anil with the help
of Katta and the appellant Arjun had taken out lathi and hit on the head of
the deceased. The said lathi was broken and was thrown on the spot.
After the incident, the car was hidden under a tree and appellant Appu
had concealed the Katta and mobile of the deceased. The appellant Appu
had given his mobile, pulsar to appellant Anurag to keep it in a hidden
place. On the disclosure statement of Anurag, motorcycle pulsar was
recovered. The same statement was made by appellant Arjun in his
disclosure statement that the appellant Appu fired on the stomach of
deceased Anil with the help of Katta. He and Anurag had given one each
blow of lathi on the head of deceased. On his disclosure statement, Indica
car was recovered whereas, on the disclosure statement Exh. P-12 of
appellant Appu, country made pistol (Katta), empty cartridge and mobile
of deceased was recovered.
7. The alleged seizure has been got proved through seizure witness and
PW-14 D.S Purohit, SHO of Police Station Susner. He stated that the
lathi, which is alleged to be seized from the spot of incident is in two
pieces. In para 26 of his statement, he stated that no sharp edged weapon
was seized from the appellants.
8. According to the prosecution, injury on stomach was a gun-shot
injury caused by appellant Appu and the appellant Anurag and Arjun
caused injury to the deceased with the help of lathi, which was seized
from the spot.
9. Learned counsel for the appellant submitted that the statement of so
called witnesses of last seen PW-3 Santra Bai, PW-7 Sapna and PW-9
Sandeep are not reliable and trustworthy, as their statement under Section
161 of the Cr.P.C was recorded after delay and their testimony do not
establish that the deceased was seen with the appellants before the
incident. He further argued that as per the P.M report Exh. P-16 and the
testimony of PW-5 Dr. J.S Parmar, the deceased received four injuries.
The injury no.1 was incised wound 6X2 / 5X3 CM above right eye and
skull bone was found cut and broken. Injury No.2 was incised wound
6X2 / 5X1 CM on the left side of head and near hair. The injury no. 3
was incised wound 6X3X1 CM, which was touching the internal part of
injury no.2. Injury no.4 was on the stomach and the intestine had come
out. The size of the injury was 4X4X5 CM. There was black spots on the
injury no.1, which was spread 2-3 CM. The other injuries was 2X7 CM
on lateral side. The opinion of the doctor was that the injury nos.1,2 and
3 were caused by sharp edged weapon and injury no.4 was gun-shot
injury. All the injuries were ante-mortem. It is argued that there is no
seizure of any sharp edged weapon from the appellants. As per the
prosecution case, the appellant Arjun and Anurag had caused injury with
the help of broken lathi, which is not a sharp edged weapon. The injury
no.4 is ofcourse a gun shot injury, which is alleged to be caused by
appellant Appu. Thus, the prosecution case so far the appellant Anurag
and Arjun are concerned is not supported by the medical evidence. The
medical report and testimony of PW 5 Dr.J.S Parmar do not corroborate
the prosecution case so far appellant Anurag and Arjun are concerned.
10. Per contra, learned counsel for the respondent/state supported the
order of conviction and sentence. It is argued that PW 3 Santar Bai
(mother of the deceased), PW 7 Sapna (sister of the deceased) and PW 9
Sandeep (brother of the deceased) have clearly stated that the deceased
was seen going alongwith appellants and so far the appellant Appu is
concerned, on his disclosure statement, a country made pistol, mobile of
the deceased was seized. As per the FSL, the said pistol was used for
firing. Thus, the case of the prosecution against the appellant Appu
stands fully proved beyond any reasonable doubt and the conviction of
the appellant Anurag and Arjun are also stands proved in view of
testimony of PW Nos.3,7 and 9.
11. I have heard learned counsel for the parties and perused the record.
12. On careful examination of PW 3, it is revealed that Santra Bai,
mother of the deceased, stated that the appellant Appu came to her house
alongwith one known person and had taken his son on a bike. PW 7
Sapna stated that she had seen his brother deceased Anil alongwith
appellant Appu and Arjun on a bike. PW 9 Sandeep, brother of the
deceased, deposed that he had seen his brother alongwith appellants in a
white color vehicle. So far appellant Appu is concerned, all these three
witnesses have stated that he was seen alongwith deceased. Mother of the
deceased did not disclose name of the other appellants and stated that
some unknown person alongwith appellant Appu had come to her house
and taken the deceased. PW/9 Sandeep stated about all three appellants to
be seen alongwith the deceased in a car and stated that his brother called
him and stated that the appellants are taking him to Zeerapur and they
should not wait for him. This part of the statement does not find place in
the statement recorded under section 161 of the Cr.P.c.
13. On the disclosure statement of appellant Appu, a country made
pistol, live cartridge alongwith mobile of the deceased has been seized
from his house vide Exh.P/13. In FSL report, it has been found that the
aforesaid pistol was used for firing. Injury no.4 received by the deceased
is a gun shot injury as per the PM report and testimony of PW/5 Dr.J.S
Parmar. Thus, the prosecution has successful proved its case beyond
reasonable doubt against the appellant Appu and we do not find any
infirmity in his order of conviction and sentence.
14. So far the case of the appellant Arjun and Anurag are concerned, as
per the prosecution, they caused lathi injury to the deceased. The lathi
has not been recovered from the aforesaid appellants. The same was
recovered from the spot. There is no query report from the Doctor that
the injury nos.1,2,3 could have been caused from the pieces of lathi
which have been recovered from the spot. As per the PM report and the
statement of PW 5 Dr.J.S Parmar, injury nos.1,2,3 are incised wound and
caused by sharp edged weapon and not by lathi. Thus, the medical report
does not corroborate the prosecution case for causing injuries with the
help of broken lathi by the appellant Arjun and Anurag.
15. In the case of Ram Narain Singh Vs. State of Punjab reported in
(1975) 4 SCC 497, it has been laid down that if the evidence of witness
for the prosecution is totally inconsistent with the medical evidence, this
is a most fundamental defect in the prosecution case and unless
reasonably explained it is sufficient to discredit the entire case.
16. The said judgment was followed in the case of Amar Singh Vs.
State of Punjab reported in (1987) 1 SCC 679, where the statement of
witness was not corroborated with the medical evidence and the same
was disbelieved.
17. In the present case, so far case against appellant Arjun and Anurag
is concerned, the prosecution case is inconsistent with medical evidence.
It is also stated that the appellant Anurag was on bail during trial and
after conviction also his jail sentence was supended and the appellant
Arjun was on bail during trial.
18. In view of the aforesaid assimilation of facts and evidence,
Criminal Appeal No.379/2013 filed by the appellant Appu @ Vijendra
stands dismissed. The appeal filed by the appellant Anurag @ Annu
Criminal Appeal No.306/2013 and Criminal Appeal No.391/2013 filed
by the appellant Arjun are allowed. Their conviction and sentence are set
aside as the prosecution failed to prove its case against them beyond
reasonable doubt.
19. Their bail bond stands discharged.
20. Ex consequenti, all the appeals are disposed off.
(VIJAY KUMAR SHUKLA) (RAJENDRA KUMAR (VERMA))
JUDGE JUDGE
sourabh
Digitally signed by
SOURABH YADAV
Date: 2022.12.07
10:18:30 +05'30'
