Rameshwar vs The State Of Madhya Pradesh
2022 Latest Caselaw 7256 MP

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                                                                                   Cr.A.No.1059/2012


                              IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
                                                           BEFORE

                                              SHRI JUSTICE SUJOY PAUL
                                                         &
                                        SHRI JUSTICE DWARKA DHISH BANSAL

                                        CRIMINAL APPEAL No. 1059 of 2012



                        1. Rameshwar, Aged about 30 years,
                        S/o Shri Ram Prasad Dubey,

                        2. Kamlesh, Aged about 26 years,
                        S/o Shri Ram Prasad Dubey

                        3. Ram Prasad Dubey @ Nanhe
                        Aged about 62 years,
                        S/o Nanhe Jaggannath Dubey
                        All are Resident of Chhatarpur,
                        Police Station Tendukheda,
                        District Narsinghpur, M.P.

                                                                      ........ Appellants

                        (By Shri Jagat Kumar Dehariya, Advocate)
                                                   Vs.
                        The State Of Madhya Pradesh Th. P.S.
                        Tendukheda, District Narsinghpur, (Madhya
                        Pradesh)

                                                                      .........Respondent
Signature
 SAN      Not
Verified
                        (By Shri S.K. Kashyap, Government Advocate)
Digitally signed by S
HUSHMAT
HUSSAIN
Date: 2022.05.17
08:23:45 IST
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                                                                  Cr.A.No.1059/2012




                                  JUDGMENT

(13/05/2022)

Per:-DWARKA DHISH BANSAL, J.

Appellants have preferred the present appeal being aggrieved by the impugned judgment dated 12.04.2012 passed by the First Additional Sessions Judge, Gadarwara, District Narsinghpur in S.T. No.193/2010 whereby appellants have been convicted for commission of offence under Sections 302/34 of the IPC and have been sentenced to imprisonment for life along with fine of Rs.500/- each with default stipulation.

2. As per the prosecution story, on 08.08.2010 at about 2.50 PM, complainant Prakash (PW-1), who is brother of deceased Durga Prasad made a complaint that when he was going from Dhobi to his Village Chhatarpur then Pannalal Kirar of his village told that his brother Durga Prasad is being beaten by appellants/accused persons namely Ramprasad, Kamlesh and Rameshwar, then he went to the spot along with Dalchandra Patel and saw that his brother Durga Prasad-deceased was assaulted by Rameshwar with Axe, Ramprasad with Lathi (stick) and Kamlesh Dubey with Obhi. At the time of incident, Jagdeesh Kirar, his mother Bari Bai and Ashish were present. Durga Prasad was inflicted injuries on the head, temple (Kanpati), back, both legs and hands, who succumbed to the injuries.

3. The incident was reported by brother of the deceased namely Prakash (PW-1) to the police, thereupon marg was registered at no.22/10 (Ex.P/1) and thereupon first information report (Ex.P/2) was registered at crime

Cr.A.No.1059/2012

no.168/2010 at about 2.45 pm under Sections 302/34 of the IPC against the accused persons/appellants. After investigation, challan was filed before the learned Judicial Magistrate First Class, who after registration of the criminal case, committed the case to the Court of First Additional Sessions Judge, Gadarwara, District Narsinghpur.

4. Learned Court framed the charges under Section 302/34 of the IPC against the accused persons/appellants, who abjured their guilt and contended that they have not committed any offence and they have been falsely implicated in the case.

5. The prosecution examined total 12 witnesses whereas the appellants/accused persons examined Narbadi (DW-1) and Balchand (Kotwar) (DW-2) in defence.

6. The finding of the learned Trial Court has been assailed on the ground that the learned trial Court has not properly appreciated the oral and documentary evidence available on record and the findings as well as conclusions drawn by learned Court below are illegal and not sustainable. Learned Court below has not appreciated that appellant No.3 is aged about 62 years and it is quite impossible to cause injury by him by using Axe and all the injuries caused by him are not responsible for the death because it was not in deep in the skull. Further deceased has not sustained any injuries by Obhi because no stab wound was found on the body of the deceased. As per the opinion of the doctor, the injury was found on the head but no fracture was found on the head of the deceased.

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7. He further submits that there was no intention or any previous enmity between the parties so as to commit murder of the deceased by the appellants/accused persons. He further submits that it is very much impossible that all the family members had seen the incident and no one even tried to help the deceased, therefore, presence of all the witnesses becomes doubtful. From bare perusal of the impugned judgment, it is clear that learned Court below has itself found testimony of Prakash (PW-1) to be doubtful.

8. It is undisputed fact that during investigation, no Test Identification Parade was conducted with regard to the appellants. Learned counsel for the appellants further submits that although the learned Court below has considered the evidence of all the witnesses but no finding with regard to the commission of offence by the appellants has been given. From bare perusal of the judgment, it is also clear that the learned Court below has given most of the findings in favour of the accused persons/appellants but without their being any reasoning has convicted and sentenced the appellants as aforesaid. There was no motive of the accused persons/appellants to kill the deceased Durga Prasad and the accused persons/appellants were not having any common intention and there are general allegations against all the appellants. Indisputably, the injuries are said to have been caused by using Axe, Lathi and Obhi but prosecution has failed to prove the guilt of the appellants beyond reasonable doubt.

9. Learned counsel for the appellants further submits that even on the basis of the findings so recorded by the learned Court below, the appellants deserve to be acquitted from the charges and from the material available on record so also from the findings recorded by the Court below, it is not clear from the

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record that out of the three accused persons/appellants, who struck a fatal blow to the deceased and at the most offence would fall under Section 325 of the IPC. The injuries are simple in nature and are not sufficient in ordinary course of nature to cause death.

10. The testimonies of the witnesses are full of contradictions, omissions and improvements but ignoring the said aspect, the learned Court below has convicted the appellants/accused persons and accordingly, submitted that the impugned judgment of conviction and sentence is not sustainable. To bolster his submission, he placed reliance on the judgment of Hon'ble Apex Court in the case of Prem Narain and another VS. State of Madhya Pradesh, (2007) 15 SCC

485.

11. Learned Government Advocate for the respondent State has argued in support of the impugned judgment and stated that the findings of conviction and sentence of the learned trial Court is based on legal evidence and is in accordance with law, no interference is required in the impugned judgment, hence, the appeal be dismissed.

12. We have heard the learned counsel for the parties and perused the record. It is true that the prosecution has examined 12 witnesses and the learned trial Court has based its judgment on the evidence of Prakash (PW-1), Pannalal Kirar (PW-2), Jagdeesh (PW-3), Ashish (PW-5), Munnibai (PW-6), Anirudh (Kotwar) (PW-7), Dalchand Patel (PW-8), Hiralal (PW-9) and Dr. D.K. Waghmare (PW-10) but the fact remains that Pannalal (PW-2), who was informer of the incident and other witness Dalchand Patel (PW-8), who upon information given

Cr.A.No.1059/2012

by Pannalal Kirar to Prakash went on the spot, were declared hostile by the prosecution. It is Pannalal Kirar, who informed the brother of the deceased Durga Prasad namely Prakash (PW-1) then he along with Dalchand Patel (PW-8) went on the spot and saw that his brother Durga Prasad was being beaten by Rameshwar with Axe, Ramprasad Dubey with lathi and Kamlesh Dubey with Obhi. In the statement recorded before the Court, witness Pannalal Kirar (PW-2) and witness Dalchand Patel (PW-8) have turned hostile and shown ignorance about the incident and did not support the prosecution story. Similarly witness Prakash (PW-1) has been disbelieved by the learned Court itself vide para no.57 of its impugned judgment. Aforesaid three witnesses are said to be eye witnesses of the incident but in view of the aforesaid, testimony of all the said witnesses cannot be relied upon.

13. Jagdeesh (PW-3) is also said to be an eye witness but first of all, he has turned hostile and in view of his statement regarding the time of incident, his presence on the spot becomes doubtful. He has stated that at about 2 O' Clock he was returning to home then Munnibai, Prakash, Dallu and other persons were assembled there whereas Prakash (PW-1) states that the incident took place at 11.30.

14. Another eye witness Ashish (PW-5) has in paragraph no.10 of his statement stated that upon reaching of Prakash, quarrel was going on whereas Prakash (PW-1) says that upon his arrival on the spot, accused had run away. Another eye witness Munni Bai (PW-6), who is the wife of deceased has stated in paragraph 6 of her deposition that during quarrel she fell down and covered her husband and despite this her husband (deceased) was being beaten by the accused

Cr.A.No.1059/2012

persons/appellants. She states that because of her falling down, blood stains were affixed on her clothes. It is clear from the first information report (Ex.P/2) so also from the marg intimation (Ex.P/1), presence of Munnibai has not been shown on spot. The marg intimation (Ex.P/1), which was recorded on the date of the incident by Shankar Rao Bujade A.S.I. (PW-11), there is no mention about presence of Munni Bai on the spot. As such, her presence becomes doubtful, resultantly, her testimony cannot be believed.

15. Witness Jagdeesh (PW-3) is the witness of seizure and memorandum, who has denied from the seizure and memorandum and has shown ignorance about the documents signed by him, who was declared hostile by the prosecution. Similarly, witness Anirudh (Village Kotwar) (PW-7) has also denied from seizure made under his signature and has specifically denied from the seizure and memorandum, who was also declared hostile by the prosecution. Another witness Hiralal (PW-9), who is also the witness of memorandum (Ex.P/7, P/8 and P/12) has denied from the seizure and memorandum and has stated that he signed the documents under pressure of police officials. In view of aforesaid, it can very well be said that the prosecution has failed to establish the seizure and memorandum also. Dr. D.K. Waghmare (PW-10) has in paragraph nos.8, 9, 10 and 11 stated that the police has not sent any seized weapon for query and this doctor has also not given any opinion to the effect that injuries caused to the deceased were caused by the seized weapon or were possible to have been caused from the seized weapon.

16. It is very much surprising that at the time of the incident, despite covering the body of the deceased by her wife, no injury was caused to the wife and her son, who was standing nearby did not react in any manner. Despite the

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fact that the clothes of deceased's wife got blood stains but were not seized by the police. Further, other eye witnesses, who were having nexus with the deceased had not taken any action to save him.

17. Indisputably, there was no fracture on the head of the deceased and other injuries found on the body were also not sufficient to cause death of the deceased. From the testimony of all the prosecution witnesses, it is not clear that who inflicted the fatal blow to the deceased, hence, it is very much unsafe to convict all the accused persons/appellants in the offence. Although, in all the cases, Test Identification Parade is not required to be conducted but in the present case, where there are many eye witnesses available, then non conduction of Test Identification Parade makes the prosecution story doubtful.

18. Bare perusal of the impugned judgment, it is clear that the learned Court below has done much exercise to appreciate the evidence available on record but despite disbelieving the testimony of all the witnesses for one or the other reason, at the end, convicted the accused persons/appellants certainly without recording any specific findings against the accused persons/appellants. Vide paragraph no.57 of the impugned judgment, learned trial Court has disbelieved the testimony of Prakash (PW-1) but in the later part has without any sufficient reason, considered his evidence and on surmises and conjectures passed the impugned judgment convicting the accused persons/appellants.

19. In view of the aforesaid discussion and in the existing facts and circumstances, it cannot be said with all certainty that the accused persons/appellants had intention to cause death of the deceased or caused death or

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such bodily injury, which was sufficient to cause death in ordinary course of nature. In the circumstances, the appellants cannot be convicted for commission of murder under Section 302/34 of the IPC.

20. As analyzed above, this criminal appeal deserves to be and is hereby allowed. Consequently, the judgment passed by the First Additional Sessions Judge, Gadarwara, District-Narsinghpur in Session Trial No.193/2010 dated 12.04.2012 is set-aside. Appellants Rameshwar, Kamlesh and Ram Prasad Dubey are acquitted from the charges by giving benefit of doubt. Appellants are in jail, hence, they be set at liberty forthwith, if their presence is not required in any other case.

Appeal is allowed accordingly.

        (SUJOY PAUL)                           (DWARKA DHISH BANSAL)
           JUDGE                                    JUDGE


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