Madhya Pradesh High Court
Surajbhan Singh vs The State Of Madhya Pradesh on 20 January, 2022
Author: Gurpal Singh Ahluwalia
1
Surajbhan Vs. State of M.P. (Cr.A. No. 6213 of 2021)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
DEEPAK KUMAR AGARWAL J.J.
Cr.A. No. 6213 of 2021
Surajbhan Singh
Vs.
State of M.P.
Shri Prakhar Dhengula Counsel for the Appellant.
Shri C.P. Singh Counsel for the State.
Date of Hearing : 11-1-2022
Date of Judgment : 20-Jan-2022
Approved for Reporting :
Order
20- January -2022
Per G.S. Ahluwalia J.
1.
This Criminal Appeal under Section 374 of IPC has been filed
against the judgment and sentence dated 9-7-2021 passed by 1 st
Additional Sessions Judge, Gohad, Distt. Bhind in S.T. No.118/2007
by which the Appellant has been convicted and sentenced for the
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Surajbhan Vs. State of M.P. (Cr.A. No. 6213 of 2021)
following offences :
Convicted under Section Sentence
302/149 of IPC Life Imprisonment and fine of
Rs. 1,000/- in default 6 months
R.I.
307/149 of IPC R.I. for 5 years and fine of Rs.
1,000/- in default 6 months
R.I.
148 of IPC R.I. for 1 year and fine of
Rs.500/- in default 6 months
R.I.
All the sentences shall run concurrently.
2. According to prosecution story, the complainant Bhanupratap
Singh Gurjar, lodged an FIR on 16-10-2006 at 10:45 A.M., on the
allegation that at about 10:15 A.M., he, his father Pahalwan, uncle
Darshan Singh, Cousin brother Ajab Singh were irrigating the field of
Ajab Singh. At that time, the Appellants as well as Surajbhan and
Dilip came to their field. They were armed with guns, lathi and other
weapons and surrounded his Father, Uncle and Cousin brother and
started abusing them. Kedar Singh and Ramhet said that they
(accused persons) would irrigate their fields first and in case if they
(complainant party) do not agree for that, then they (complainant
party) would be killed. His father replied, that some portion of his
field is left for irrigation and let it be completed. Then Bharat Singh
by using abusive language started insisting that he will irrigate his
land. His uncle also tried to persuade Bharat Singh that he may wait
for some time. Kedar Singh, Ramhet and Surajbhan were having
mouser guns, whereas Bharat was having Farsa, Devaram, Dilip and
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Rampreet were having lathis. Kedar fired a gunshot causing injury on
the head of his father. Ramhet also caused gunshot injury to his
Uncle Darshan Singh. Surajbhan also fired gunshot causing injury
on the head of his father. Dilip Singh, Rampreet, Devaram started
assaulting Ajab Singh by means of lathi, Farsa as a result, he also fell
down. Ajab Singh sustained injuries on his head, hands and legs as
Bharat Singh had assaulted him by Farsa, whereas Devaram, Dilip
and Rampreet had assaulted by lathis. His father Pahalwan and
Darshan Singh died on the spot. Kedar Singh also chased him and
fired gunshots, but he escaped and ran towards his house. Ravi and
Brijendra have witnessed the incident. Kedar Singh has left his white
shirt, photocopy of his license and diary with Rs.150/- on the spot,
which he has brought.
3. On the basis of the report lodged by complainant Bhanupratap
Singh, police registered offence under Sections 302, 307, 147, 148,
149, 120-B of I.P.C. The dead bodies of Pahalwan Singh and Darshan
Singh were sent for post-mortem. The spot map was prepared.
Statements of the witnesses were recorded. Police after completing
the investigation, filed charge sheet against the Appellants and
Surajbhan for offence under Section 147, 148, 149, 302, 307, 120-B
of I.P.C., whereas co-accused Dilip was shown absconding.
4. The Trial Court by order dated 23-1-2008 framed charges
against the Appellant under Sections 148, 302 or in the alternative
302/149, for murder of Pahalwan and Darshan Singh, 307/149 of IPC
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Surajbhan Vs. State of M.P. (Cr.A. No. 6213 of 2021)
for making an attempt to kill Bhanupratap Singh and Ajab Singh.(It is
not out of place to mention here that singular charge under Section
302 or in the alternative 302/149 of IPC was framed for murder of
Pahalwan and Darshan Singh, instead of framing charges on two
counts. Similarly, singular charge under Section 307/149 of IPC was
framed for attempting to kill Bhanupratap Singh and Ajab Singh,
instead of framing charges on two counts.)
5. The Appellant abjured his guilt and pleaded not guilty.
6. The prosecution examined Bhanupratap Singh (P.W.1) and
Ajab Singh (P.W.2) and thereafter, the Appellant Surajbhan
absconded and accordingly by order dated 25-10-2008, he was
declared absconding. He was again arrested and produced before the
Trial Court on 3-4-2017. Thereafter, by order dated 21-6-2017, it was
observed, that since, the evidence of Bhanupratap Singh (P.W.1) and
Ajab Singh (P.W.2) was recorded in presence of the Appellant,
therefore, summons be issued for appearance of other witnesses.
Accordingly, the prosecution examined, Brijendra (P.W.4), R.S.
Rathore (P.W.5) and Dr. G.R. Shakya (P.W.10). According to the
prosecution, since, all material witnesses were examined, therefore,
the prosecution closed its right on 27-2-2020.
7. The Appellant did not examine any witness in his defence.
8. The Trial Court by the impugned judgment convicted and
sentenced the Appellant for the offences mentioned above.
9. Challenging the judgment passed by the Court below, it is
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submitted by the Counsel for the Appellant Kedar Singh that
Bhanupratap Singh (P.W.1) and Ajab Singh (P.W.2) are unreliable
witnesses. The ocular evidence is not supported by medical evidence.
The presence of rigor mortis indicates, that the deaths had already
taken place much prior to the alleged time of incident. In fact some
unknown persons might have killed the deceased Pahalwan and
Darshan Singh in the wee hours, but on account of previous enmity,
the Appellants have been falsely implicated. Multiple fired cartridges
were found on the spot, whereas according to prosecution witnesses,
only four gunshots were fired. In the FIR it is alleged by Bhanupratap
Singh that Kedar had left his white shirt on the spot, and he has
brought the same, but in his evidence, he clearly stated that after
leaving the place of incident, he did not return to the spot, therefore,
it is clear that there was no occasion for the complainant to bring the
white shirt of Kedar to the police station. The witnesses are related
and interested witnesses, therefore, they are not reliable. It is further
submitted that while deposing in the Trial of Co-accused Dilip, these
witnesses had clearly stated that the Appellant was not present on the
spot, therefore, they are not reliable.
10. Per contra, the Counsel for the State has supported the findings
recorded by the Trial Court.
11. Heard the learned Counsel for the parties.
12. Before adverting to the facts of the case, this Court would like
to consider as to whether the judgment passed by the Trial Court is a
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complete judgment or not?
13. The Trial Court in para 34 of its judgment has convicted the
Appellant under Section 302/149 of IPC for causing murder of
Pahalwan Singh and under Section 307/149 of IPC for making an
attempt to kill Bhanupratap (P.W.1), however, the judgment is
completely silent with regard to charge under Section 302/149 of IPC
for murder of Darshan Singh and under Section 307/149 of IPC for
attempt to kill Ajab Singh (P.W.2).
14. It is not out of place to mention here that initially, Bhanupratap
Singh (P.W.1) and Ajab Singh (P.W.2) were examined in the presence
of the Appellant, but thereafter, he absconded accordingly, he was
declared absconding by order dated 25-10-2008. The Appellant was
arrested after the conviction of the co-accused persons. Accordingly,
the Trial of the Appellant resumed.
15. One Dilip was also absconding right from the day one. He was
arrested during the trial of the Appellant. Since, Bhanupratap Singh
(P.W.1) and Ajab Singh (P.W.2) were examined in presence of the
Appellant, therefore, they were examined in respect of co-accused
Dilip only. Although Bhanupratap Singh (P.W.1) and Ajab Singh
(P.W.2) supported the prosecution story, but they turned hostile on the
question of identity of Dilip Singh. However, they also said that the
Appellant was also not there. Brijendra (P.W.4) was examined in
respect of Appellant and Dilip, but he too turned hostile on the
question of identity.
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16. During the course of final argument before the Trial Court, it
was argued by the Counsel for the Appellant, that since Bhanupratap
Singh (P.W.1), and Ajab Singh (P.W.2) in their evidence recorded on
6-12-2018 and 16-4-2018 respectively, have also stated that the
Appellant was also not there, therefore, they are unreliable witness.
However, the Trial Court rejected the arguments by holding that
initially, Bhanupratap Singh (P.W.1) and Ajab Singh (P.W.2) were
examined in the presence of the Appellant, therefore, their evidence,
which was led in respect of Dilip Singh, cannot be read in favor of the
Appellant.
17. The findings recorded by the Trial Court are perfectly correct in
the light of the judgment passed by the Supreme Court in the case of
Karan Singh Vs. State of M.P. reported in AIR 1965 SC 1037 and
A.T. Mydeen and anr. Vs. The Assistant Commissioner, Customs
Department vide order dated 29/10/2021 passed in Criminal
Appeal No.1306/2021.
18. The Supreme Court in the case of A.T. Mydeen (Supra) has
held as under :
39. The provisions of law and the essence of case-laws, as
discussed above, give a clear impression that in the matter
of a criminal trial against any accused, the distinctiveness of
evidence is paramount in light of accused's right to fair trial,
which encompasses two important facets along with others
i.e., firstly, the recording of evidence in the presence of
accused or his pleader and secondly, the right of accused to
cross-examine the witnesses. These facts are, of course,
subject to exceptions provided under law. In other words,
the culpability of any accused cannot be decided on the
basis of any evidence, which was not recorded in his
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presence or his pleader's presence and for which he did not
get an opportunity of cross-examination, unless the case
falls under exceptions of law, as noted above.
40. The essence of the above synthesis is that evidence
recorded in a criminal trial against any accused is confined
to the culpability of that accused only and it does not have
any bearing upon a co-accused, who has been tried on the
basis of evidence recorded in a separate trial, though for the
commission of the same offence.
41. 41. It is also an undisputed proposition of law that in
a criminal appeal against conviction, the appellate court
examines the evidence recorded by the trial court and takes
a call upon the issue of guilt and innocence of the accused.
Hence, the scope of the appellate court's power does not go
beyond the evidence available before it in the form of a trial
court record of a particular case, unless section
367 or section 391 of Cr.P.C. comes into play in a given
case, which are meant for further inquiry or additional
evidence while dealing with any criminal appeal.
42. In the present controversy, two different criminal
appeals were being heard and decided against two different
judgments based upon evidence recorded in separate trials,
though for the commission of the same offence. As such,
the High Court fell into an error while passing a common
judgement, based on evidence recorded in only one trial,
against two sets of accused persons having been subjected
to separate trials. The High Court ought to have distinctly
considered and dealt with the evidence of both the trials and
then to decide the culpability of the accused persons.
19. The Supreme Court in the case of Karan Singh (Supra) has
held as under :
4. The only question argued in this appeal is whether in
view of the acquittal of Ramhans by the learned Sessions
Judge from which there had been no appeal, it was open to
the High Court to hold that the Appellant was guilty of
murder under S. 302 read with S. 34 by finding on the
evidence that Ramhans who shared a common intention
with him, shot the deceased dead and attempted to murder
Ramchandra. In the High Court reliance had been placed on
behalf of the Appellant on the judgment of this Court in
Pritam Singh v. State of Punjab, (S) AIR 1956 SC 415. That
case referred with approval to the judgment of the Judicial
Committee in Sambasivan v. Public Prosecutor, Federation
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of Malaya, 1950 AC 458 at p. 479, where it was observed
that
"the effect of a verdict of acquittal... is not completely
stated by saying that the person acquitted cannot be tried
again for the same offence. To that it must be added that the
verdict is binding and conclusive in all subsequent
proceedings between the parties to the adjudication."
As the High Court pointed out, that observation has no
application to the present case as here the acquittal of
Ramhans was not in any proceeding to which the Appellant
was a party. Clearly, the decision in each case has to turn on
the evidence led in it; Ramhans's case depended on the
evidence led there while the Appellant's case had to be
decided only on the evidence led in it. The evidence led in
Ramhans' case and the decision there arrived at on that
evidence would be wholly irrelevant in considering the
merits of the Appellant's case. We may add here that Mr.
Misra appearing for the Appellant did not in this Court rely
on Pritam Singh's case, (S) AIR 1956 SC 415.
5. Mr. Misra contended that the decision of this Court in
Krishna Govind Patil v. State of Maharashtra, AIR 1963 SC
1413 showed that the High Court was wrong in ignoring
the fact of the acquittal of Ramhans. We are unable to
accept that contention. The point there considered really
was whether when four persons had been charged with the
commission of an offence of murder read with S. 34 and the
trial Court had acquitted three of them it was legal to
convict the remaining accused of the offence of murder
read with S. 34. The High Court had held that that could be
done. This Court set aside the judgment of the High Court
mainly on the ground that such a decision would result in
conflicting findings. It was observed,
"While it (the High Court) acquitted accused 1, 3 and 4
under S. 302 read with S. 34 of the Indian Penal Code, it
convicted accused 2 under S. 302 read with S. 34, of the
said Code, for having committed the offence jointly with
the acquitted persons. This is a legally impossible position."
That case no doubt discussed various situations where it is
possible after acquitting certain persons to hold that the
conviction of other or others was justified under S. 34 on
the ground that the evidence showed that there were other
unknown persons who were associated with those convicted
though the charge did not mention them. With this aspect of
the matter we are not concerned in this case and neither was
the case of Krishna Govinda Patil, AIR 1963 SC 1413.
6. We are therefore of opinion that the judgment in Krishna
Govind Patil's case, AIR 1963 SC 1413 does not assist the
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Appellant at all. On the other hand we think that the
judgments earlier referred to on which the High Court
relied, clearly justify the view that in spite of the acquittal of
a person in one case it is open to the Court in another case
to proceed on the basis of course if the evidence warrants it
- that the acquitted person was guilty of the offence of
which he had been tried in the other case and to find in the
later case that the person tried in it was guilty of an offence
under S. 34 by virtue of having committed the offence along
with the acquitted person. There is nothing in principle to
prevent this being done. The principle of Sambasivam's
case, 1950 AC 458 has no application here because the two
cases we are concerned with are against two different
persons though for the commission of the same offence.
Furthermore, as we have already said, each case has to be
decided on the evidence led in it and this irrespective of any
view of the same act that might have been taken on different
evidence led in another case.
20. Thus, the evidence which was led in the Trial of co-accused
Dilip cannot be read in favor of the Appellant Surajbhan. Further, on
6-12-2018 and 16-4-2018, Bhanupratap Singh (P.W.1) and Ajab
Singh (P.W.2) respectively, were being examined for co-accused Dilip
only and not for the Appellant Surajbhan. Therefore, the Appellant
Surajbhan would not get benefit of any word uttered by Bhanupratap
Singh (P.W.1) and Ajab Singh (P.W.2) in their examination on 6-12-
2018 and 16-4-2018 respectively.
21. However, it is surprising, that although the Appellant
Surajbhan Singh was being tried for offence under Section 302/149
of IPC for committing murder of Pahalwan and Darshan Singh, but
the Trial Court, without giving any finding in respect of murder of
Darshan Singh, convicted him only for the murder of Pahalwan. At
the cost of repetition, it is observed that the Appellant has also not
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been acquitted for charge under Section 302/149 of IPC for murder
of Darshan Singh. In fact the judgment is completely silent about the
murder of Darshan Singh. Similarly, no finding was given by the
Trial Court in respect of attempt to kill Ajab Singh (P.W.2), but held
that the Appellant is guilty of making an attempt to kill Bhanupratap
Singh (P.W.1). At the cost of repetition, it is observed, that the
Appellant has also not been acquitted for charge under Section
307/149 of IPC for making an attempt on the life of Ajab Singh
(P.W.2).
22. Thus, it is clear that the Trial Court has passed an incomplete
judgment.
23. Now, the next question for consideration is that since, no
appeal has been filed by the State in this regard, then whether this
Court is helpless or can remand the matter for writing a judgment in
respect of charge under Section 302/149 of IPC which was framed
for murder of Darshan Singh as well as in respect of charge under
Section 307/149 of IPC which was framed for making an attempt to
kill Ajab Singh (P.W.2).
24. Although no appeal has been filed by the State, but this Court
is not reversing the judgment passed by the Trial Court. It is merely
found that the judgment passed by the Trial Court is incomplete.
Section 386 of Cr.P.C. deals with the powers of Appellate Court,
which reads as under :
386. Powers of the Appellate Court.-- After perusing
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such record and hearing the Appellant or his pleader, if he
appears, and the Public Prosecutor if he appears, and in case
of an appeal under Section 377 or Section 378, the accused,
if he appears, the Appellate Court may, if it considers that
there is no sufficient ground for interfering, dismiss the
appeal, or may--
(a)in an appeal from an order of acquittal, reverse such
order and direct that further inquiry be made, or that
the accused be re-tried or committed for trial, as the
case may be, or find him guilty and pass sentence on
him according to law;
(b)in an appeal from a conviction--
(i) reverse the finding and sentence and acquit or
discharge the accused, or order him to be re-tried by a
Court of competent jurisdiction subordinate to such
Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the
nature or the extent, or the nature and extent, of the
sentence, but not so as to enhance the same;
(c)in an appeal for enhancement of sentence--
(i) reverse the finding and sentence and acquit or
discharge the accused or order him to be re-tried by a
Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the
nature or the extent, or the nature and extent, of the
sentence, so as to enhance or reduce the same;
(d)in an appeal from any other order, alter or reverse
such order;
(e)make any amendment or any consequential or
incidental order that may be just or proper:
Provided that the sentence shall not be enhanced unless the
accused has had an opportunity of showing cause against
such enhancement:
Provided further that the Appellate Court shall not inflict
greater punishment for the offence which in its opinion the
accused has committed, than might have been inflicted for
that offence by the Court passing the order or sentence
under appeal.
25. In the present scenario, this Court cannot issue notice to the
Appellant for enhancement of sentence as no sentence has been
awarded by the Trial Court on above mentioned two charges.
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Further, this Court cannot remand the matter for re-trial, as no
procedural lapse has been committed by the Trial Court, but only an
incomplete judgment has been passed.
26. Section 482 of Cr.P.C. reads as under :
482. Saving of inherent powers of High Court.--
Nothing in this Code shall be deemed to limit or affect the
inherent powers of the High Court to make such orders as
may be necessary to give effect to any order under this
Code, or to prevent abuse of the process of any Court or
otherwise to secure the ends of justice.
27. The appeal is continuation of Trial. An appeal thus is a
rehearing of the main matter and the appellate court can reappraise,
reappreciate and review the entire evidence--oral as well as
documentary--and can come to its own conclusion. Therefore, this
Court is of the considered opinion, that even in absence of any appeal
by State, this Court in exercise of powers under Section 482 of
Cr.P.C., can remand the matter for writing the judgment in respect of
charge under Section 302/149 of IPC for murder of Darshan Singh
and under Section 307/149 for making an attempt on the life of Ajab
Singh (P.W.2) also, which was erroneously left by the Trial Court.
28. Accordingly, the case is remanded back to the Trial Court with
the following directions :
(a) The Trial Court shall pass a judgment in respect of charge under
Section 302/149 of IPC for murder of Darshan Singh;
(b) The findings given by the Trial Court in respect of charge under
Section 302/149 of IPC for murder of Pahalwan Singh shall not be
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touched;
(c) The Trial Court shall pass a judgment in respect of charge
under Section 307/149 of IPC for attempt to kill Ajab Singh (P.W.2);
(d) The findings given by the Trial Court in respect of charge
under Section 307/149 of IPC for attempt to kill Bhanupratap Singh
(P.W.1) shall not be touched.
(e) The Principal District and Sessions Judge, Bhind is directed to
assign the file to some other Additional Sessions Judge and not to the
judge who has passed the impugned incomplete judgment.
29. Let the whole exercise be completed within a period of 3
months from the date of receipt of record of this Case.
30. Ex-consequenti, the judgment and sentence dated 9-7-2021
passed by 1st Additional Sessions Judge, Gohad, Distt. Bhind in S.T.
No.118/2007 is hereby set aside, and the case is remanded back for
limited purposes in the light of directions given in para 28 of the
judgment.
31. The Appellant is in jail. He shall continue to remain in jail.
32. Let a copy of this judgment be provided to the Appellant
immediately, free of cost.
33. The Registry is directed to immediately sent back the record
for necessary information and compliance.
34. The Criminal Appeal is disposed of accordingly.
35. The District Judge (Inspection), Gwalior is directed to conduct
an enquiry into the matter, and if it is found that the Presiding Judge
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Surajbhan Vs. State of M.P. (Cr.A. No. 6213 of 2021)
was negligent in discharge of his duties, or has passed the incomplete
judgment because of some extraneous considerations, then the matter
be placed before Hon'ble the Chief Justice for action on
administrative side.
36. Let the enquiry be completed within 2 months from today. The
office is directed to immediately send a copy of this judgment along
with copy of judgment dated 9-7-2021 passed by 1 st A.S.J., Gohad,
Distt. Bhind to the District Judge (Inspection), Gwalior for necessary
action.
(G.S. Ahluwalia) (Deepak Kumar Agarwal)
Judge Judge
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