Madhya Pradesh High Court
Gokul And 04 Ors. vs The State Of Madhya Pradesh on 15 December, 2022
Author: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
CRIMINAL APPEAL No. 1313 of 2010
BETWEEN:-
GOKUL S/O RAMESH GEHLOT, AGED ABOUT 19 YEARS,
1. OCCUPATION: STUDENT, R/O 94/3 SHIIVKANTH NAGAR, P.S.
BANGANGA INDORE (MADHYA PRADESH)
ASHISH S/O RAMESH GEHLOT, AGED ABOUT 21 YEARS,
2. OCCUPATION: LABOUR R/O 94/3 SHIIVKANTH NAGAR, P.S.
BANGANGA INDORE (MADHYA PRADESH)
AHILYABAI W/O RAMESH, AGED ABOUT 40 YEARS,
3. OCCUPATION: LABOUR R/O 94/3 SHIIVKANTH NAGAR, P.S.
BANGANGA INDORE (MADHYA PRADESH)
RAMESH S/O HEERALAL, AGED ABOUT 44 YEARS,
4. OCCUPATION: SERVICE R/O 94/3 SHIIVKANTH NAGAR, P.S.
BANGANGA INDORE (MADHYA PRADESH)
RAVI S/O RAMESH GEHLOT, AGED ABOUT 25 YEARS,
5. OCCUPATION: DRIVER R/O 94/3 SHIIVKANTH NAGAR, P.S.
BANGANGA INDORE (MADHYA PRADESH)
.....APPELLANT
(BY MS. SHARMILA SHARMA, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT. THROUGH POLICE
STATION BANGANGA INDROE (MADHYA PRADESH)
.....RESPONDENT
( BY KAMAL KUMAR TIWARI, GOVRENMENT ADVOCATE)
This appeal coming on for orders this day, JUSTICE VIVEK
RUSIA passed the following:
Signature Not Verified
Signed by: PRAVEEN
NAYAK
Signing time: 16-12-2022
17:39:30
2
''Reserved on : 22.11.2022''
''Pronounced on : 15 .12.2022''
JUDGMENT
This criminal appeal has been preferred by convict
accused-appellants against judgment dated 31.08.2010 of learned
16th Additional Sessions Judge (Fast Track), Indore, in Sessions
Case No.818/2009, whereby they have been convicted for
offence under section 148, 302/149, 307/149 of IPC and
sentenced to undergo, 1 Year R.I., Life Imprisonment, 7 Years
R.I. with fine of Rs.500/-, Rs. 1000/- and Rs. 500/- in default of
payment of fine, they were ordered to additionally undergo
rigorous imprisonment for one month, six months and 1 month.
[2] It is admitted fact that the appellant No.3 and appellant
No.4 are husband and wife and appellant No.1, 2 and 5 are their
son. During the pendency of this appeal, the appellant No.4 had
died.
Facts of the case in short, are as under:
[3] Dehati Nalishi (Ex.P/1) was registered at the instance of
Bhagwanti Bai at Crime No. 0/2009 for the offence punishable
under section 307,302, 34 of IPC on 22.02.2009 at 12.30 pm in
respect of incident took place on 22.02.2009 at a 10.30 pm.
Thereafter upon the death of Rajubai, merg intimation was
recorded under Section 174 of Cr.P.C. Thereafter, ASI Omkar
Singh Kushwaha , Police Station Banganga registered an FIR at
Crime No.148/2009 at 15:20 against all these five appellants. As
per the information given by Bhagwanti Bai (PW-1), she
purchased two plots alongwith Ahiliya Bai (Appellant No.3) in
Signature Not Verified
Signed by: PRAVEEN
NAYAK
Signing time: 16-12-2022
17:39:30
Shantinagar Colony. Ahiliya Bai demanded money for one plot
from Bhagwantibai and she gave Rs.50,000/- and requested to
Ahilyabai to execute a notarized documents but she refused to do
so, hence, a dispute occurred between them. According to PW-1
on 22.02.2009 in the morning, she alongwith her mother Rajubai
and brother Dilip were passing infront of the house of Ahilyabai
(Appellant No.3), Gokul (Appellant No.1), Ashish (Appellant
No.2), Ravi (Appellant No.5), Ahiliyabai and Ramesh (Appellant
No.4) surrounded them with common intention to kill in
furtherance and attacked on them with intention to kill with
knife, Gupti and Katar. She has further disclosed that Ravi was
carrying the Katar, Gokul, Ashish and Ramesh were wielding
knife and Ahiliya Bai was wielding Gupti. They assaulted them
due to which she sustained injury on her wrist, her brother Dilip
sustained injury on his back and thigh, cheek and her mother
Rajubai sustained the injuries on stomach, chest and back and ran
away. All three injured went M.Y. Hospital for treatment but
mother Rajubai died on reaching the hospital. This incident
witnessed by Phool Singh, Tejram and other residents.
[4] The dead body was sent for postmortem, where the autopsy
was conducted by Dr. N.M. Unda (PW-12). Other two i.e.
Bhagwanti Bai and Dilip were examined by Dr. Indira Narang
(PW-16). As per autopsy report the death was due to shock
hemorrhage as a result of injury to the body. The death is
homicidal in nature. These appellants were arrested and from
their possession arms were recovered. All were sent to the doctor
with request to give query report thereafter these arms and blood
Signature Not Verified
Signed by: PRAVEEN
NAYAK
Signing time: 16-12-2022
17:39:30
stain cloth, blood stain soil were sent to FSL. The statement of
witnesses under Section 161 of Cr.P.C. were recorded.
Investigation was completed and charge sheet was filed. The trial
was committed to the Sessions Court. The appellants denied the
charges and plead for trial.
[5] During trial, the prosecution has examined as many as 16
witnesses and exhibited 17 documents. In defence the appellants
did not examine but cross examined witnesses i.e. PW-1 and
PW-2 and PW-3 at length. On completion of recording of
evidence, the accused were examined under Section 313 of
Cr.P.C, to which they strongly denied the allegations brought
against them by the prosecution and claimed for trial.
[6] After hearing the arguments of both sides and on going
through the evidences and materials available on record, the
learned Sessions Judge came to the conclusion that Bhagwanti
and Dilip sustained the injury by sharp cutting edged weapons.
Raju Bai died due to the injuries on vital part and hence the death
was homicidal. The learned Sessions Judge has found
involvement of all the appellants and convicted and sentenced
them as afore-stated.
[7] Learned counsel for the appellants submits that the entire
family members including Ramesh and Ravi have falsely
implicated in this case due to the enmity in respect of sale of
plots. In cross-examination, she has admitted that she has not any
receipt in respect of payment of Rs.50,000/-. The prosecution has
not collected any document to establish that Ahiliya Bai
purchased two plots in the Shanti Nagar Colony, therefore, the
Signature Not Verified
Signed by: PRAVEEN
NAYAK
Signing time: 16-12-2022
17:39:30
motive has not been established. It is further submitted that the
Ramesh and Raju were not present on the spot but they have
falsely been implicated in this case. There is serious lapse in the
investigation as no blood stain cloths were recovered. The knifes
which were recovered on the disclosure of appellants in which no
human blood was found, therefore, conviction is bad in law. The
appellants have undergone more than 13 years of jail sentence.
The entire incident took place infront of Ahiliyabai, these
complainants were passing infront of the house of the appellants.
At the most dispute suddenly occurred, hence, it cannot be pre-
planned murder. It was not in the knowledge of appellants that
Bhagwanti and others were passing infront of their house. Hence,
offence will not travel beyond section 304 (Part II) of IPC. It is
further submitted that there are omnibus allegations against all
the appellants. No specific overt act attributable to them has been
established Hence, conviction of appellants under Section 302 of
IPC. with the aid section 148 and 149 unsustainable and they are
liable to be acquitted.
[8] Government Advocate opposes the aforesaid prayer by
submitting that PW-1 to PW-3 are injured witnesses, therefore,
their testimony and presence cannot be disbelieved. Other local
residents Phool Singh and Tejram have also supported the case of
prosecution with due identification of appellants. Dehati Nalishi
was registered promptly , thereafter FIR was registered on the
same day, hence, no interference was called for and appeal is
liable to be dismissed.
[7] The Prosecution examined Bhagwanti Bai examined as
Signature Not Verified
Signed by: PRAVEEN
NAYAK
Signing time: 16-12-2022
17:39:30
PW-1 and according to her, she purchased two plots alongwith
Ahiliya Bai in Shantinagar Colony. Ahiliya Bai demanded money
for one plot from Bhagwantibai. She gave Rs.50,000/- and
requested to Ahilyabai to execute a notarized documents but she
refused to do so, hence, a dispute was going on between them.
Today on 22.02.2009 in the morning, she alongwith her mother
Rajubai and brother Dilip were passing infront of the house of
Ahilyabai, then she alongwith Gokul, Ashish, Ravi, Ahiliyabai
and Ramesh has surrounded them with common intention and
attacked on them with intention to kill with knife, Gupti and
Katar. She has further disclosed that Ravi was carrying the Katar,
Gokul, Ashish and Ramesh were wielding knife and Ahiliya Bai
was wielding Gupti. They assaulted them due to which she
sustained injury on her wrist, Dilip sustained injuries on his back
and thigh cheek and her mother sustained the injuries on
stomach, chest and back. All three injured went M.Y. Hospital for
treatment but mother Rajubai died in the hospital. This incident
witnessed by Phool Singh, Tejram and other residents.
[8] PW-1 has also deposed that when she was passing house of
Ahiliya Bai, she was assaulted by appellants. Bhagwanti Bai
sustained the injury of knife on his left hand. Thereafter, her
mother Raju Bai and Dilip came there. All the accused persons
came with the knife and assaulted them. Whereas in the FIR, she
stated that Ahiliyabai carrying Gupti, and Ravi was carrying the
Katar. She was given specific suggestion that Ramesh and Raju
were not on the spot. She has also admitted that they had very
cordial relation but because of this dispute of plot, the relation
Signature Not Verified
Signed by: PRAVEEN
NAYAK
Signing time: 16-12-2022
17:39:30
become bitter, however, she has not made any complaint in
respect of plot to police. She is also not having any receipt of
payment of Rs.50,000/-. Likewise Dilip (PW-2) who has also
sustained the injury has made omnibus allegations against all the
accused that they assaulted them him, and his mother and sister.
Girdhari (PW-3), Phoolsingh (PW-4) and Mahesh (PW-5) who
were examined as eye witnesses and according to them, all the
accused persons were carrying the knife and assaulted Rajubai,
Dilip and Bhagwanti. Hence, we have no reason to disbelieve the
them.
[9] The Police has recovered knife from Gokul, Ashish and
Ramsh, Gupti from Ahiliyabai and Katar from Ravi. The police
has sent knife article- D ( rerecord from Ramesh), knife article-E
(recovered from Gokul), Gupti article -F (recovered from
Ahiliyabai), Knife article G (recovered from Ashish) not such
Katar was sent for FSL report. As per FSL report Ex.P/29, no
human blood was found on these arms, however disintegrated
blood was found on article D, E, F and G, thus presence and
recovery of katar from appellant Ravi become doubtful. Being
son of Ramesh and Ahiliya, he has falsely been implicated in the
present case. Thus appellant No.5 Ravi is liable to be acquitted.
As per autopsy report, there are corresponding injuries of Gupti
and knife all over the body of Rajubai, which has remained
unrevertted. The appellants have been convicted under Section
302 of IPC with the aid of section 149 as they formed the
unlawful assembly to assault the Rajubai, Dilip and Bhagwanti
Bai with common intention to kill them. Therefore, their
Signature Not Verified
Signed by: PRAVEEN
NAYAK
Signing time: 16-12-2022
17:39:30
conviction under Section 148, 302/149 and 307/149 are liable to
be altered and appellant No.5 Ravi be acquitted Section 148,
302/149 and 307/149 of IPC.
In the result, appeal is partly allowed and we pass the
following order.
[i] The conviction and sentence of appellant No.5 Ravi
for the offence punishable under Section under section 148,
302/149, 307/149 is set aside. He be released forthwith, if not
required in other crime.
[ii] The conviction and sentence of appellant No.1
Gokul, Appellant No.2 Ashish, Appellant No.3 Ahilyabai,
Appellant No.4 Ramesh (died) is altered from offence punishable
under Section section 148, 302/149, 307/149 to under Section
302/34 and 307/34 of IPC.
Let record of the trial court be sent back alongwith
judgment.
(VIVEK RUSIA) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
praveen
Signature Not Verified
Signed by: PRAVEEN
NAYAK
Signing time: 16-12-2022
17:39:30
