Jitendrasingh vs The State Of Madhya Pradesh
2022 Latest Caselaw 13730 MP

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          IN THE HIGH COURT OF MADHYA PRADESH
                        AT INDORE
                          BEFORE
           HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
                             &
        HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
                 ON THE 24th OF AUGUST, 2022

             CRIMINAL APPEAL No. 5856 of 2017

  BETWEEN:-
  1.    JITENDRASINGH      S/O    SHRI
  NARAYANSINGH, AGED ABOUT 30 YEARS,
  OCCUPATION: AGRICULTURE        GRAM
  BINJANA     DISTT.DEWAS      (MADHYA
  PRADESH)
  2. NIRBHAY SINGH 2 RAJESH MAMA S/O
  SHRI CHUNNILAL PATIDAR, AGED 51
  YEARS,                  OCCUPATION-
  BUSINESS/AGRICULTURE,       VILLAGE-
  BAIRACHHIMA MCKDONE, DISTRICT-
  UJJAIN (MADHYA PRADESH)
  3.   [email protected]@GOPAL         S/O
  MANGILAL PATIDAR BERCHA, DISTT.
  SHAJAPUR (MADHYA PRADESH)
                                          .....APPELLANTS
  (BY SMT. SHARMILA SHARA, ADVOCATE )

  AND
      THE STATE OF MADHYA PRADESH
      STATION        HOUSE      OFFICER
      THRU.P.S.INDUSTRIAL AREA,  DEWAS
      (MADHYA PRADESH)
                                          .....RESPONDENT
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   (BY SHRI BHUWAN DESHMUKH, GOVT. ADVOCATE )


         Reserved on                            24.08.2022
        Delivered on                          18.10.2022
............................................................................................................
         This appeal coming on for judgment this day, JUSTICE
SUBODH ABHYANKAR passed the following:

                                          JUDGMENT

01. The appellants have preferred the present appeal under Section 374(2) of Cr.P.C., being aggrieved by the judgment dated 30.11.2017, passed by the Special Judge (under SC & ST Act), Dewas (Madhya Pradesh) whereby, finding the appellants guilty, the learned Judge of the trial court has convicted them and has sentenced them as under:-

                             Conviction                                  Sentence

                          Section         Act       Imprisonment             Fine        Imprisonmen
   Name of the                                                                            t in lieu of
   Appellants                                                                Rs.              fine
                          302/34,         IPC             Life             10,000/-         01 year
Jitendrasingh
                           120-B
                          302/34,         IPC             Life             10,000/-          01 year
Nirbhaysingh
                          120-B
                          302/34          IPC             Life             10,000/-          01 year
Santosh      @
Rajesh @ Goptal
                        25(1-B)(A)       Arms       03 months RI           10,000/-        02 months

                                          Act

02. In brief, the facts giving rise to the present appeal are that on 13.11.2011, at around 22.40 hours, complainant Rachna Bai (p.w.2) lodged the First Information Report at Police Station-Industrial Area, Dewas stating that she is a resident of village Binjana, District-Dewas and at around 9 o'clock in the night when she and her deceased son Narayansingh were sleeping after having dinner, at that time, somebody called from outside, to which her son Narayansingh opened the door and at that time she heard a gunshot and ran towards Narayansingh, a second gunshot was also fired which hit Narayansingh on his chest who fell down and when she came out of the house she saw that on the opposite side of the house, her daughter-in-law Laadkunwar Bai,wife of Narayansingh and her son Jitendrasingh were standing. She also saw two other persons who had covered their faces, running away from the spot on a red vehicle. After seeing her, her daughter-in-law Laadkunwar Bai and her son Jitendrasingh also ran away from the spot, and when she raised an alarm, and after hearing the gunshots, her grandson Rahul and daughter-in-law Radha Bai also came to the spot. She has stated that her elder son Narayansingh (deceased) and his wife Laadkunwar Bai were having a land dispute that is why her son Narayansingh used to reside with

her only, and used to visit his house occasionally, and around one month ago also Narayansingh had a dispute with his wife Laadkunwar Bai. Thus, it is stated that Narayansingh was murdered by his wife Laadkunwar Bai and her son Jitendrasingh, and two other unidentified persons who, during the course of investigation were found to be Nirbhay Singh Meharban Singh and Santosh were also found to be involved in the case. After the FIR was lodged, investigation ensued and the charge sheet was filed against Jitendrasingh, Laadkunwar Bai and other three persons viz.,Nirbhay Singh, Meharban Singh and Santosh @[email protected] After recording of the evidence, learned Judge of the trial court has convicted the accused appellants Jitendrasingh, Nirbhaysingh and Santosh as aforesaid while acquitting the accused Laadkunwar Bai, giving her a clean chit on the basis of a plea of alibi as also Meharban Singh, who was also acquitted.

03. Smt. Sharmila Sharma, learned counsel appearing for the appellants has submitted that appellant no.2 Nirbhaysingh has already died during pendency of this appeal whereas appellant Jitendra Singh is already on bail; whereas appellant-Santosh is lodged in jail since 27.2.2012. It is submitted that the prosecution has not been able to prove its case beyond

reasonable doubt. The appellants have been falsely implicated in the case, which is apparent from the fact that even the other accused Laadkunwar Bai, whose presence is shown on the spot by the mother of the deceased has been found to be not present on the post during the course of the trial as her plea of alibi has been accepted by the trial court.

04. Counsel appearing for the State/respondent has opposed the prayer and it is submitted that the learned Judge of the trial court has rightly appreciated the evidence and hence no case for interference is made out.

05. Heard the learned counsel for the parties and perused the record.

06. From the record, it is found that so far as the FIR (Ex.P/1) is concerned, it has been proved by the complainant Rachna Bai (p.w.2) alleging the commission of the crime by A-Jitendra Singh, Laadkunwar Bai and the other two unknown persons by gunshot injury. The time of the incident is said to be 9.30 p.m. whereas the intimation at the police station was made on 10.40 a.m., i.e., after one hour and ten minutes.

07. P.w.2/Rachna Bai, in her deposition, has stated that the person, who had shot the deceased, had run away from the spot on a motorcycle, whereas the other accused Laadkunwar Bai,

A-Jitendrasingh and Meharbansingh who is the father-in-law of appellant Jitendra and she has also deposed that these persons had given a contract of Rs.3 lacs to Nirbhaysingh to kill her son Narayan. However, there is material omission in her statement as in the FIR Ex.P/1, only two persons have been named, viz., Laadkuvarbai and her son Jitendra and two other persons have also been shown on the spot but they have not been identified by this witnesses. She has also been confronted with various criminal cases which were registered against the deceased Narayansingh and it has been suggested to her that he used to grab the lands of the innocent persons by giving them loan and was in the habit of grabbing the lands by resorting to illegal means, because of which, he was having many disputes with many persons. She has also admitted that the deceased Narayansingh used to sell illegal liquor and because of which also he had many enemies.

08. In para 15 of her cross examination, P.w.2/Rachna Bai has admitted that after the incident, many persons had come to her house and after due deliberation she has lodged the report. On behalf of A-Nirbhaysingh (now deceased), in para 22 of her cross examination, it has been suggested to P.w.2/Rachna Bai that Rs.3,00,000/-was given by Laadkunwar Bai, Jitendra Singh

and Meharban Singh to A-Nirbhaysingh for murdering Narayansingh to which she has feign ignorance. She has also admitted that her other son Roopsingh is in jail in a triple murder case. Although she has denied that the complainant party of the aforesaid triple murder case was inimical towards Narayansingh and they had also threatened to kill Narayansingh. She has also been suggested in her cross- examination that on the date of the incident, the accused Laadkunwar Bai was hospitalized and her son Jitendrasingh and Meharbansingh were looking after Laadkunwar Bai.

09. So far as P.w.3/Samandar Singh is concerned, he is the younger brother of deceased Narayansingh. He has stated that his brother was murdered by A-Jitendrasingh, his mother- Laadkunwar Bai and Meharbansingh after giving a contract of killing him for a consideration of Rs.3,00.000/- to A- Nirbhaysingh who had sent two persons viz; Santosh and Gourav who had come to the house of the complainant in the night of the incident and shot his brother Narayansingh dead, and soon thereafter, all of them ran away from the spot. But this witness has admitted that no seizure took place in front of him.

10. P.w./12 Dr. H.S. Rana has examined the deceased and

prepared the post-mortem report (Ex.P/21). It is found that the deceased had suffered a gunshot wound on his abdomen and had also found a bullet which was stuck in his spinal cord which was seized by him and the cause of death is said to be excessive bleeding and shock as also the injury suffered on the liver of the deceased.

11. P.w.23/Rameshwar Patel, A.S.I. has stated in his deposition that a country made pistol was recovered at the instance of A-Santosh and as per ballistic report (Ex.P/57), it is found that bullet which is Ex.E.B-I, which has been recovered from the body of the deceased, has been fired from the country made pistol (Ex.A/1) and Ex.C1, the shirt of the deceased has the hole caused by the bullet E.B.1. In such circumstances, since the gun Ex.A/1 was recovered at the instance of the A- Santosh, there arises an irrebuttable presumption that it was the appellant Santosh who had fired on the deceased Narayansingh which caused his death. Thus, there appears to be no error on the part of the trail court in conviction the appellant Santosh and his sentence is hereby confirmed.

12. So far as the appellant Jitendra s/o Narayan Singh is concerned, it is found that there is also no direct evidence against him as his name also appears together with his mother

Laadkunwar bai in the FIR lodged by P.w./2 Rachna bai but the learned judge of the trial court has accepted the plea of alibi so far as the accused Laadkunwar Bai is concerned, but has convicted the appellant Jitendra s/o Narayan Singh only on the ground that his name finds place in the FIR. This court is of the considered opinion that mere mentioning of the name of appellant Jitendra s/o Narayan Singh in the FIR would not make him liable to be convicted, if the prosecution has not been able to substantiate its case by corroborative evidence and to prove the case against him beyond reasonable doubt. In such circumstances, we find that the conviction of the appellant Jitendra s/o Narayan Singh is liable to be set aside.

13. Resultantly, the appeal stands partly allowed. The impugned judgment dated 30.11.2017 in respect of the appellant no.1 Jitendra s/o Narayan Singh only is hereby set aside and he is acquitted. Since he is already on bail; his bail bonds and surety bonds are hereby discharged.

14. So far as the appellant No.2/Nirbhay Singh @ Rajesh Mama s/o Mangilal Patidar, whose appeal has already been dismissed as abated vide order dated 01.3.2019.

15. So far as the appellant No.3 Santosh @ Rajesh @ Gopal s/o Mangilal Patidar is concerned, the impugned

judgment dated 30.11.2017 passed by the learned Judge of the trial court is here by upheld and the sentence and conviction so awarded to the him stands affirmed and thus, the Criminal Appeal in respect of the appellant No.3 Santosh @ Rajesh @ Gopal stands dismissed.

16. With the aforesaid, the Criminal Appeal stands partly allowed.

17. A copy of this judgment be sent to the concerned trial court for compliance.

          (SUBODH ABHYANKAR)                                          (SATYENDRA KUMAR SINGH)
               JUDGE                                                            JUDGE


moni

       MONI
                 Digitally signed by MONI RAJU

DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=JUDICIAL, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=6fb601f03d4083a3289219d85392bac3bde1be8a5 3bd80aeba7af5a5244844c1,

RAJU pseudonym=85E21E23646B47526A49E99D9182D0AE8ABD 62D1, serialNumber=3BFD07BEC0C790E4AEA8CB122D629549D1 067813B2AE8FB016F1BF08EE881126, cn=MONI RAJU Date: 2022.10.18 18:15:10 +05'30'