Babu @ Dharmendra @ Padamsingh vs State Of M.P.
2022 Latest Caselaw 8224 MP

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    IN THE HIGH COURT OF MADHYA PRADESH
                       AT INDORE
                        BEFORE
            HON'BLE SHRI JUSTICE VIVEK RUSIA
                             &
   HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)

            CRIMINAL APPEAL No. 1365 of 2009

Between:-
HUKUM S/O GULAB SINGH BHILALA , AGED ABOUT 25 YEARS,
GRAM BHUWANIYA THANA DHARAMPURI DISTT. DHAR
(MADHYA PRADESH)
                                              .....APPELLANT
(BY MS. SHARMILLA SHARMA, ADVOCATE. )

AND

STATE OF M.P. THR.PS.ANJAD DISTT. BADWANI (MADHYA
PRADESH)
                                           .....RESPONDENTS

(BY SHRI MUKESH KUMAWAT, GOVT. ADVOCATE)

CRIMINAL APPEAL No. 1464 of 2009

Between:-

BABU @ DHARMENDRA @ PADAMSINGH S/O BHAGWAN SINGH, AGED ABOUT 25 YEARS, OCCUPATION: AGRICUTURE, GRAM PAGRAWAD KHURD,THANA AVANTIPUR BARODIYA,SHAJAPUR (MADHYA PRADESH) .....APPELLANT (BY BY MS. SHARMILLA SHARMA, ADVOCATE. )

AND

STATE OF M.P. THRU.PS.ANJAR,BARWANI (MADHYA PRADESH) .....RESPONDENTS (BY SHRI MUKESH KUMAWAT, GOVT. ADVOCATE)

(Heard on 16/06/2022) (Judgment passed on 22/06/2022)

The appellants have filed these two criminal appeals being

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aggrieved by the judgment dated 05.11.2009 whereby they have been convicted as under:-

Sections       Act          Imprisonment   Fine amount   Imprisonment
                                                         in lieu of fine
302/34         IPC          Life           Rs.2,000/-    3 months R.I.
                            Imprisonment
324/34         IPC          1-year R.I.    Rs.500/-      3 months R.I.
25(1-B)(B)     Arms Act     1-year R.I.    Rs.500/-      3 months R.I.
Prosecution story

1. On 18.10.2007 near about 11:30 p.m. Ghamandi (P.W.-1), Jagdish (P.W.-2) and Mukesh( the deceased) went to the Dhaba of Dinesh. They were discussing with Dilip s/o Jagan for the dumping of sand on the cricket ground. At that time Shivram with his two friends were taking meals in the Dhaba. They requested Ghamandi P.W.-1, Jagdish P.W.-2 and deceased Mukesh not to disturb them which turned into a hot discussion thereafter, all the three came outside the Dhaba and started smoking. After some time Shivram left the Dhaba along with Dilip and two friends came outside and found his motorcycle lying on the field. On this issue, a dispute again arose between them. Both the two friends of Shivram took out the knife and initially assaulted Ghamandi (P.W.-1), and then Jagdish (P.W.-2). Both P.W.-1 and P.W.-2 becomes unconscious. Thereafter they caught hold of the deceased and stabbed him in his left side ribs. After sometimes when they regain consciousness they saw that Mukesh had already died. They immediately went to the village and narrated the entire story to Munnalal thereafter, they along with Jagdish, Radheshyam and Haresingh came to the police station and lodged the report.

2. The FIR was registered at 6:45 A.M. on 19.10.2007 at crime No.161/2007 under sections 302, 307, 324/34 of the IPC against two friends of Shivram ( unknown persons). The

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investigation was started by S.S. Raghuwanshi (P.W.-14) by reaching the spot. He drew Nakshapanchnama Exhibit-P/8 and recovered two mobile sets of Nokia and Motorola and cash of Rs.780/- from the dead body of Mukesh. As per Nakshapanchanama, the dead body was lying back side of the Dhaba of Dinesh in an open place . Prima facie the death was found to be homicidal in nature therefore, same was sent to the hospital for autopsy. Medical Officer of Civil Hospital Dr J.P. Pandit (P.W.-12) conducted Autopsy and opined that Mukesh died as a result of Hemorrhage shock due to a stab injury on the left side of his chest. The investigating officer prepared a spot map Exhibit-P/2. Injured P.W.-1 and 2 were admitted to the hospital and their statements were recorded. The investigating officer has also recorded the statement of Shivram under section 161 of Cr.P.C. in which he disclosed the name of Ghamandi and admitted his presence in the Dhaba on the night of 18.10.2007. Investigating Officer also recorded the statement of other witnesses namely Ghamandi, Jagdish, Dilip, Shivram and Dinesh. Appellant Hukum was arrested on 16.01.2008 and his memo statement was recorded under section 27 of the Evidence Act vide Exhibit-P/9 in which he has disclosed the name of appellant [email protected] Dharmendra @Padam Singh and a knife was also recovered. Hukum is a resident of Vill. Buwaniya District Dhar and in his arrest memo, his arrest was shown at police station Anjad at 23:20 hrs on 16.01.2008 vide Exhibit-P/23. .After three months of the date of the incidence accused [email protected] Dharmendra @Padam Singh was arrested. The investigating officer arrested [email protected] Dharmendra @Padam Singh formerly on 07.02.2008 as he was in District Jail, Shajapur. His memorandum statement was recorded under section 27 of the Evidence Act on

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16.02.2008. Thereafter the police conducted a TIP of Hukum Singh on 07.02.2008 in which P.W.-1 and P.W.-2 both have identified him thereafter, a TIP of [email protected] Dharmendra @Padam Singh was conducted on 21.02.2008 he was also identified by P.W.-1 and P.W.-2. The MLC of P.W.-1 and P.W.-2 was conducted vide Exhibit-P/16 and 17.

04. After completing the investigation charge sheet was filed and the trial was committed to the sessions court where aforesaid charges were framed for which the appellants denied the charges and pleaded their false implication by the police. Hence, the prosecution was called upon to examine the witnesses. The prosecution has examined 15 witnesses and exhibited 25 pieces of documentary evidence. In defence, appellants did not examine any witnesses but by way of cross-examination got exhibited the statement of Jagdish, Munnalal and Dilip as D-1 to D-3. After evaluating the evidence came on record learned First Additional Sessions Judge, Barwani had acquitted the appellants from section 307 of the IPC as P.W.-1 and P.W.2 sustained minor injuries but convicted appellants under section 302/24, 324/34 of the IPC along with section 25(1-B)(B) of the Arms Act and sentenced as stated above.

Arguments of appellants

05. Learned counsel for the appellants submit that appellants have wrongly been convicted in this case . They have not committed this offence. the impugned judgment is bad in law , hence liable to be set aside. The conduct of P.W.-1 and P.W. 2 are doubtful there is a delay in lodging FIR. In fact, they have committed the murder of Mukesh and the police have arrested these appellants after 3-4 months. They are in jail since 2008 and they have completed 14 years in jail, therefore, even if the

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findings recorded by the trial court on merits are confirmed, they are liable to be convicted under section 304 part I of the IPC instead of section 302 I.P.C. of the IPC. Learned counsel further submits that if the entire case of the prosecution is accepted as it is then it is established the dispute arose suddenly between the appellants and deceased, P.W.-1 and 2 outside the Dhaba of Dinesh. There was no previous enmity between them. They did not even know each other before this incident therefore, it is a fit case in which they are liable to be convicted under section 304(Part-I) of the IPC for which they are already undergone 14 years of a jail sentence.

Arguments of Government Advocate

06. Learned Govt. Advocate for the respondent/State opposes the limited prayer by submitting that appellants with a common intention not only assaulted deceased but caused injuries to P.W.1 and 2 by means of the knife . It is further submitted by the learned counsel that due to all the stab injuries on the chest of the deceased Mukesh died on the spot. Out of two appellants, [email protected] Dharmendra @Padam Singh is a hardened criminal as he had already been convicted under section 302 of the IPC registered at crime no.232/2006 on 17.12.2008 Exhibit-P/20 hence, no leniency is liable to be shown and the appeal is liable to be dismissed.

Appreciation and conclusion

07. As per the statement of P.W.-1 and P.W.-2, they went to Dhaba of Dinesh along with deceased Mukesh where Shivram along with two friends were taking dinners. They came outside and a dispute arose between them as the motorcycle of one of the accused was lying on the field. As per P.W.-1 initially, he was assaulted by means of the knife by both the appellants thereafter

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they assaulted Jagdish and both fell down and thereafter, they caught Mukesh and stabbed him in his ribs and fled away. In paragraph 3 of P.W.-1 has stated that he saw deceased Mukesh whispering something but both becomes afraid and went to the village and narrated the entire story to Munnalal. According to P.W.-2 after sustaining the injuries he became unconscious and when both gained consciousness they saw Mukesh lying dead. They went to the house of Munnalal and narrated the story. We find the conduct of P.W.-1 and P.W.-2 doubtful because as per the MLC reports of P.W.-1 and P.W.-2. they sustained minor injuries which were not sufficient to unconscious them. They did not disclose the time period of their unconsciousness and after gaining consciousness they did not try to take the deceased to the hospital for treatment rather ran away to the village and lodged the report on the next day morning. Being close friends of the deceased they should have taken him to the hospital.

08. According to P.W.-1 and 2 , the appellants were sitting with Shivran in the Dhaba. The police recorded the statement of Shivram on 19.10.2007 in which he disclosed the name of Hukum as his aunt's son. He left the Dhaba along with Dilip and came to know the next morning that Mukesh has been killed and Jagdish and Ghamandi are in the hospital. On the basis of disclosure by Shivram, the police first arrested Hukum on 16.01.2008 and thereafter, [email protected] Dharmendra @Padam Singh on 07.02.2008. Shivram has not been examined in court despite his name in the list of witnesses.

09. The police have examined Dinesh owner of the Dhaba who has established the presence of these appellants, deceased P.W.-1 and 2 in the Dhaba. According to him, he left the Dhaba leaving his servants Sunil and Devendra to take care of Dhaba who were

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present at the time of the incident in the Dhaba but they have also not been examined by the prosecution in the trial. Dilip has been examined as P.W.-7 who has identified these appellants, deceased, P.W.-1 and 2. According to him also all of them were present at the Dabha. He also came to know that the Mukesh has been murdered and lying behind the Dhaba of Dinesh therefore, except for P.W.-1 and 2 there were no eyewitnesses in this case. As stated above their conduct are doubtful because their injuries were not sufficient to turn them unconscious and thereafter they left the place without giving any help to their friend Mukesh. There is no FSL report confirming the blood on the knife recovered from the possession of these appellants. The dispute arose because the motorcycle of the appellants was lying on the field but the police has not seized the motorcycle and P.W.-1 and 2 did not disclose the number of the motorcycle. According to P.W.1 and 2, the dispute arose in front of the Dhaba but the dead body of Mukesh was found in an open place behind the Dhaba. On 16.9.2007 night Garba celebration was going in the village and despite that, no independent witness has been examined by the prosecution especially those two employees of the Dhaba of Dinesh who were present at the Dhaba at the time of the incident.

10. We are not satisfied with the investigation part and the marshalling of evidence by the learned trial court. The appellants also did not examine any witnesses but came up with a defence that P.W.-1 and P.W.-2 had a dispute with deceased Mukesh and they killed him but, they have been falsely implicated. Even if the evidence of P.W.- 1 and 2 are believed which only establishes that these appellants were in the Dhaba along with Shivram who has not been examined and some altercation took place between them but whether they have committed the murder has not been

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established by the prosecution is beyond a reasonable doubt. Shivram was the best witness who could have established the presence of these two appellants at the Dhaba.

Hence both the appellants deserve acquittal from all the charges. Impugned judgment dated 05.11.2009 is set aside. The appellants be released forthwith if not required in any other crime.

Record of the court below along with a copy of this order be sent forthwith for information and compliance.

           (VIVEK RUSIA)                                           (AMAR NATH KESHARWANI))
               JUDGE                                                    JUDGE
  Ajit/-




AJIT
                       Digitally signed by AJIT KAMALASANAN

DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh,

KAMALASAN 2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba241e ffad892107d95ef0a1afc55b4, pseudonym=CFDFD9C36711CA738F527A5D61A1EE901 C09EF29, serialNumber=7F0BEE2D78BD57DA058F3247441C87E7

AN E0817FB61F5E2ABCAEE63CAAA7B3B9FF, cn=AJIT KAMALASANAN Date: 2022.06.23 16:32:21 +05'30'