Subhash vs State Of M.P.
2022 Latest Caselaw 614 MP

-1-           CRA NO.1067/08, CRA NO.1192/08 & CRA NO.1274/08

HIGH COURT OF MADHYA PRADESH: BENCH
                          AT INDORE
DIVISION BENCH: HON'BLE SHRI JUSTICE VIVEK RUSIA
 & HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH

              CRIMINAL APPEAL No.1067/2008

Appellant:              Manish s/o Ramprasad
                        Age 23 years, R/o 72,
                        Prakash Nagar, Ujjain

                                 Vs.

Respondent:             State of M.P through P.S. Madhav
                        Nagar, Ujjain.

      Smt.Sharmila Sharma, learned counsel for the appellant.
      Smt.Mamta Shandilya, learned GA for the State.
                              *****
              CRIMINAL APPEAL No.1192/2008

Appellant:              Subhash s/o Chunnilal Wadiya
                        Asged 22 years, Kishanpura,
                        Ujjain.

                                 Vs.

Respondent:             State of M.P through P.S
                        Madhav Nagar, district Ujjain.

      Shri R.C.Verma, learned counsel for the appellant.
      Smt.Mamta Shandilya, learned GA for the State.
                               *****
               CRIMINAL APPEAL No.1274/2008

Appellant:              Sanjay s/o Dayaramji Mehar
                        Age 28 years, occupation Labourer
                        R/o 9, Desainagar, Ujjain.

                                 Vs.

Respondent:             State of M.P through Police station
                        Madhavnagar, Ujjain

      Shri Dharmendra Chelawat, learned counsel for the appellant.
      Smt.Mamta Shandilya, learned GA for the State.
 -2-             CRA NO.1067/08, CRA NO.1192/08 & CRA NO.1274/08

                            JUDGMENT

(Delivered on 13.01.2022) Per Vivek Rusia, J:

These appeals are filed against the judgment dated 12.09.2008 passed by VIIth A.S.J (Fast Track), Ujjain in S.T No.121/2007 whereby out of ten accused the present appellants have been convicted under section 302/34 of the IPC and sentenced to undergo life imprisonment with fine of Rs.25,000/-; in default of payment of fine, further RI for 2 years and also under section 25(1)(B)(b) of the Arms Act and sentenced to undergo RI for one year with fine of Rs.1000/-, in default of payment of fine further RI for 3 months.

The facts of the case, in short, are as under:

2. As per the prosecution story, in short, on 17.12.2006 complaint Manendra Singh and his nephew Rahul and his friend Ram @ Neeraj were standing at Ashok Nagar crossing for having tea. At that time Sanjay R/o Desai Nagar, Manish r/o Prakash Nagar and Subhash r/o Kishanpura (appellants) came there and started abusing Manendra Singh. When he objected, Manish took out a knife, Rahul tried to pacify him, Manish became furious because of such intervention and inflicted injury by a knife on his left thy. By that time Sanjay also took out a knife and started assaulting Ram @ Neeraj. Manendra shouted for help, Sandeep and other persons came there to help. Subhash has assaulted Manendra Singh by means of fists and legs and thereafter all the three left the place threatening to see the dire consequences in future. Thereafter Ram and Rahul were taken to Madhavnagar police station. Manendra Singh lodged an FIR at police station Madhavnagar on 17.12.2006 at 13.30 hrs only against the present 3 appellants by noting the aforesaid story. The FIR was registered u/s 294, 323, 324, 307, 506 & 34 of the IPC (Ex.P/33). On the same day, the police recorded the statement of Manendra Singh u/s 161 Cr.P.C in which he has improved his version and added the names of some more accused viz. Rakesh, Suraj, Manjeet, Santosh, Manoj Dayaram and Harish that they also joined these 3 appellants and assaulted them.

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3. Prem Singh Bhadoriya PW/27, SHO Madhavnagar reached the spot on 17.12.2006 at 15.15 hrs. and draw a spot map. Rahul and Ram were examined by the doctor Pramod Maheshwari PW/24, however, Ram succumbed to the injuries. The ASI drew a Safina form and called 5 witnesses and also drew a Nakshapanchayatnama. He found the death homicidal and requested for a postmortem. The postmortem was carried out at 4.40 and as many as 7 stab wounds were found over the person of Ram. Dr.R.Vyas PW/10 gave an opinion that Ram died due to hemorrhagic shock as a result of injuries to the vital organs. In view of the aforesaid autopsy report, the police have further added the offence section 302 IPC. On 06.01.07 statement of Rahul(PW/20) and 15.3.07 the statement of Ajay Sharma (PW/21) was recorded. The medical documents were collected. The accused persons were arrested and on their disclosure statement under section 27 of the Evidence Act, arms were recovered from their possession. After completing the investigation, the charge sheet was filed against as many as ten accused including the present 3 appellants. The trial was committed to the Sessions Court and the charges under sections 148, 302/149, 307/149, 294, 506 of the IPC and 25(1)(B) of the Arms Act were framed. Since the appellants abjured the guilt, therefore, the prosecution was called upon to examine the witnesses.

4. The prosecution has examined as many as 28 witnesses and exhibited 41 documents in order to prove the above charges. In defence, the appellants and other accused did not examine any witnesses. Rahul and Manendra Singh were examined as PW/20 & PW/26, however, they did not support the case of the prosecution. They have denied even assault to them by any of the accused. After appreciating the evidence came on record out of the ten accused 7 have been acquitted under section 302/34, 294, 506 Part-II IPC as the prosecution has failed to prove their presence on the spot. Against these 3 appellants the charge under section 302 I.P.C. has been found established, therefore, instead of section 149 I.P.C. they have been convicted u/s 302/34 I.P.C. . The appellant Subhash alone has been convicted under section 25(1)(B) (b) of the Arms Act, hence this appeal before this Court.

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5. Smt.Sharmila Sharma, learned counsel appearing for the appellant Manish in CRA No.1067/08 has argued he has wrongly been convicted in this case. He is said to have assaulted Rahul by means of the knife but Rahul has turned hostile and did not support the case of the prosecution. He has denied any assault on him on the date of the incident, therefore, the conviction of Manish is bad in law.

6. Shri R.C Verma, learned counsel appearing for the appellant Subhash in CRA No.1192/2008 submits that the allegation against the appellant is that he assaulted the complainant by means of fists and legs and there is no allegation that he assaulted Rahul and the deceased Ram @ Niraj. There are general allegations in the FIR, hence he has wrongly been convicted under section 302 with the aid of 34 IPC.

7. Shri Dharmendra Chelawat, learned counsel appearing for the appellant Sanjay in CRA No.1274/2008 submits that Sanjay has wrongly been convicted in this case. He did not cause any injury to Ram on the vital part. Out of 7 injuries, injuries no.1 to 6 were simple. Only injury no.7 was serious in nature. There is no evidence to that effect that such injury was caused by Sanjay.

8. Learned counsel for the appellants have jointly raised some common grounds such as that the appellants did not have any intention to kill Ram. The dispute arose on a sudden provocation. The most important eyewitnesses i.e. Rahul and Manendra Singh have turned hostile and did not support the prosecution case. So far the testimony of PW/1, PW/2, PW/4, PW/5, PW/6, PW/7, PW/20, PW/21 & PW/22 are concerned there are serious omissions and contradictions and improvements in their statements which have been ignored by the trial court. On the same set of evidence, out of ten, seven accused have been acquitted which shows that the police has falsely implicated all the accused by creating evidence. The witnesses are not trustworthy on which the punishment under section 302/34 IPC has wrongly been passed by the trial court. The police recorded the statements after a period of three months and there is no proper explanation for this long delay. In support of this contention learned counsel has relied on the judgment passed by the Supreme Court of India in the case Balbir Versus Vazir and others reported in

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(2014)12SCC670 of One of the eyewitnesses has been disbelieved by the trial court. It is further submitted by the learned counsel that there is also ambiguity regarding the alleged scene of the crime at which the said incident took place. As per the prosecution witness, the scene of the incident is shown as Desai Nagar crossing while in the police report Ex.P/13 the incident has happened at Ashok Nagar crossing which makes the FIR concocted and doubtful. In the FIR Ex.P/13 the presence and overt act of the remaining 7 accused have not been proved.

9. Appellants Manish and Subhash are on bail during the pendency of this appeal. Sanjay has undergone more than 13 years and 9 months of the jail sentence. He had no intention to kill Ram because he had no enmity with him, therefore, the common object of the appellants is missing in this case, hence all the criminal appeals may kindly be allowed.

10. Smt.Mamta Shandilya, learned Government Advocate appearing for the State has argued in support of the judgment passed by the learned Additional Session Judge. It is further submitted by the learned counsel that on the basis of the FIR, statement of eyewitnesses and doctors the appellants have rightly been convicted under section 302 with the aid of section 34 IPC. There is no scope for interference by the High Court in these appeals. Those who were falsely implicated have been acquitted by the trial court itself and there is no appeal by the State, hence these appeals are liable to be dismissed.

We have heard learned counsel for the parties and perused the record.

11. The complainant Manendra Singh (PW/26) lodged an FIR at police station Madhav Nagar on 17.12.2006 at 14.00 hrs. that at 13.30 hrs. he along with nephew Rahul and his friend Ram were standing near Ashok Nagar crossing for having a tea. At that time Santosh, Sanjay, Manish and Subhash came there and started abusing him, when he objected Manish took out the knife. Rahul tried to intervene hence Manish caused stab injury to Rahul. Sanjay also took out the knife and started assaulting Rahul's friend Ram. The complainant shouted and Sandeep and others have also come on the spot. Subhash assaulted them by fists and legs and

-6- CRA NO.1067/08, CRA NO.1192/08 & CRA NO.1274/08

thereafter they fled away. The police have registered an FIR only against the present appellants. Ram succumbed to the injuries in the hospital. Thereafter statement under section 161 of Cr.P.C. of Manendra Singh was recorded on the same day in which apart from the facts stated in the FIR he has improved his statement and took the names of the other 7 accused that they were armed with sticks and pipe and assaulted all the three. In his statement he has disclosed the death of Ram, therefore, it means that his statement was recorded after the death of Ram. The remaining statements were recorded after a lapse of 3 months by the police for which no explanation has been given. Ram and Rahul went to the Govt. hospital Madhavnagar where they were examined by Dr.Maheshwari who found stab injuries on them, however, Ram succumbed to the injuries. Neither before the trial court nor before this court in these criminal appeals the appellants have challenged the nature of injuries and cause of death of Ram , hence we need not to examined again. The death of Ram was unnatural and homicidal in nature. On the basis of the statement of Manendra Singh police has added 7 more accused in this case and filed the charge sheet under section 302 IPC after recovery of weapons from them.

12. Since except the present appellants all seven other accused have been acquitted by the trial court and there is no cross-appeal by the State, therefore, the evidence led by the prosecution in respect of involvement of those 7 accused are not liable to be examined in these appeals. The only issue which remains for consideration is whether the present appellants have been rightly convicted under section 302/34 of the IPC on the basis of the evidence came on record or not.

13. The prosecution has examined Raju Khalifa as PW/1 and according to him he is a fruit seller and near about 1.30 hrs when he was standing outside his house, he heard a voice and saw that Sanjay has stabbed Kattar on the back of Ram. Thereafter Subhash, Bablu, Manjeet, Manish have started stabbing him including Manish and Subhash and they fled away. The residents Munna, Radhakishan, Narayanrao and Kalu came there and took Ram to hospital where he was declared dead after 15 minutes. He denied the assault with others, however, none of the

-7- CRA NO.1067/08, CRA NO.1192/08 & CRA NO.1274/08

appellants has been convicted under section 307, 323 for assaulting Rahul and Manendra Singh, therefore, they are acquitted against which no appeal has been filed by the State. On this issue also evidence is not liable to be re-appreciated. The prosecution has examined Munna as PW/2 who has also supported the case of prosecution by stating that Subhash, Manish, Rakesh, Sanjay, Bablu all have assaulted [email protected] by means of knife and kattar. Subhash was carrying a khanjar and Manish and Sanjay were having a knife. Thereafter Neeraj was taken to the hospital. Sandeep PW/4 took Ram to the hospital in bleeding condition. Bhura @ Satyanarayan PW/5 whose presence has been established on the spot by PW/1 has stated that Rahul, Sanjay, Ajay, Muntu were standing at a tea shop when Subhash, Sanju, Manish, Bablu came there. Sanju took out a knife and gave a blow to Rahul. Thereafter Subhash took out the knife and gave a blow to Neeraj @ Ram and thereafter others have also stabbed him. Manohar PW/6 has turned hostile, but he has confirmed that Neeraj sustained 5-6 injuries and died because of those injuries. In cross-examination by the public prosecutor, he has supported the case of the prosecution. He took the deceased to the hospital. The learned Additional Session Judge has convicted the appellants on the basis of statement of P.W.-1 and 2 but their police statements were recorded after three months and there was no TIP, hence their testimony becomes doubtful especially when Manendra Singh an author of FIR and another injured Rahul is hostile to the prosecution case.

14. The prosecution has examined Kailshibai, mother of deceased Ram as an eyewitness but she has been disbelieved by the trial Court. Rahul PW/20 who was present on the spot and also sustained the injury, has deposed that when he was standing along with Manendra Singh three- Four persons came there and assaulted both of them but he did not identify them. He has been declared hostile by the prosecution. Although in cross-examination he has admitted that Neeraj @ Ram died because of the injuries sustained by him. Ajay Sharma PW/21 and Sanjay Gupta PW/22 have turned hostile. Manendra Singh Solanki PW/26 has stated about the incident did not support the case of the prosecution in its entirety. He has denied the involvement of any of the appellants. It is

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clear from the aforesaid evidence that the prosecution has failed to establish the involvement of the other 7 accused in this case and the charge under section 307 IPC against them. So far causing stab injury to Neeraj @ Ram is concerned the presence, as well as an overt act by these appellants, have been established. So far Manish is concerned he said to have inflicted injury to Rahul but he has been acquitted u/s 307 IPC. There are specific allegations against Sanjay for causing stab injury to deceased Ram. There is no allegation of causing injury by Subhash. He has assaulted Manendra Singh only by fists and legs. There is no recovery of the knife from Manish also. All the three appellants came to the spot to threaten Manendra Singh but Rahul and deceased Ram intervened accordingly they were assaulted by means of knives. Had there been any intention to kill them they would have assaulted Manendra Singh first by means of a knife. Rahul and Ram tried to intervene in the dispute between appellants and Manendra Singh which provoked them, and they caused the injuries. So far injuries no.1 to 6 are concerned, as per the doctor's opinion, they are minor in nature but only injury no.7 has turned fatal. But out of 10 accused who has actually caused these injuries has not been established by the prosecution.

15. As per the seizure memo, there is a recovery of the knife from Subhash, Kattar from Sanjay and knife from Manish. As per the FIR version, Manish inflicted stab injury to Rahul and Sanjay inflicted injuries to Ram on his thigh. Subhash was assaulted by fists and legs. Although Rahul and Manendra both have not supported the case of the prosecution. According to PW/1 Sanjay was stabbed with kattar on the back of Ram and the rest of them were assaulted by means of a knife. As per PW/2 Subhash was having khanjar, Manish and Sanju were having the knife and the rest of them were heaving lathi and sariya and according to them all was assaulted by means of knife and kanjar. PW/5 has stated that Sanju was having the knife and he assaulted Rahul on his thigh. Subhash took out the knife and assaulted Neeraj @ Ram on his back. There are lots of contradictions in the statements of the witnesses in respect of the fact that who has caused the fatal injury No.7 to deceased [email protected] As per the evidence of DR Rameshwar Vyas PW/10 who

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conducted the autopsy found 7 injuries on the body of Ram. Out of 7, one to six were found to be simple injuries on the thigh and only the seventh injury was the stab wound which has cut the internal part of the body and caused death. In cross-examination, he has specifically stated that injury No.7 was not caused by any kanjar or kattar whereas there is a recovery of kattar from Sanjay and as per PW/1 Sanju has given a stab injury by means of kattar on the back of Ram and as per PW/2 Sanju and Manish were having a knife. As per PW/5 Sanju was having the knife and Subhash gave a blow to Neeraj on his back. There is no corroboration of statements of the witnesses with the medical evidence as well as recovery of the weapons concerning injury No.7. Rahul and Manendra are the best eyewitnesses to support the case of the prosecution, but they have turned hostile, therefore, the prosecution has failed to prove that who actually did cause the fatal injury no.7 to the deceased, hence the appellants are entitled to the benefit of the doubt, hence their conviction under section 302/ 34 is unsustainable.

16. The prosecution has failed to prove the three months delay in recording the 161 Cr.P.C. statements of the witness. Star witnesses who also sustained injuries are not supporting the case of the prosecution. Other material inconsistencies noticed above go against the prosecution. The author of the FIR is not supporting the prosecution. In view of the above analysis all the three criminal appeals succeed and the judgment dated 12.09.2008 passed by VIIth A.S.J (Fast Track), Ujjain in S.T No.121/2007 is hereby set aside.

The bail bond of all the appellants is hereby discharged. The appellant Sanjay be released if not required in any other crime.

Record be sent back to the concerned trial court with a copy of the judgment.

           (VIVEK RUSIA)                        (SATYENDRA KUMAR SINGH)
              JUDGE                                       JUDGE

      Digitally signed by HARI
      KUMAR C G NAIR
      Date: 2022.01.16 13:18:53
hk/   +05'30'