Madhya Pradesh High Court
Dholi And 2 Ors. vs The State Of Madhya Pradesh on 20 December, 2023
Author: Anil Verma
Bench: Vivek Rusia, Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 20th OF DECEMBER, 2023
CRIMINAL APPEAL No. 1452 of 2013
BETWEEN:-
1. DHOLI S/O KANIYA, CASTE BHEEL, AGED
ABOUT 30 YEARS, OCCUPATION:
AGRICULTURIST, R/O DANDALA FALIYA,
AJWADA, POLICE STATION AMBUA,
DISTRICT ALIRAJPUR (MADHYA
PRADESH)
2. PATU @ PATUSINGH S/O FATYA @ FATTU ,
AGED ABOUT 22 YEARS, OCCUPATION:
AGRICULTURIST, R/O DANDALA FALIYA,
AJWADA, POLICE STATION AMBUA,
DISTRICT ALIRAJPUR (MADHYA
PRADESH)
3. BHURU S/O KANIYA, AGED ABOUT 28
YEARS, OCCUPATION: AGRICULTURIST,
R/O DANDALA FALIYA, AJWADA, POLICE
STATION AMBUA, DISTRICT ALIRAJPUR
(MADHYA PRADESH)
.....APPELLANTS
(BY SMT. SHARMILA SHARMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION AMBUA, DISTRICT
ALIRAJPUR (MADHYA PRADESH)
.....RESPONDENT
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 12/22/2023
5:14:50 PM
2
(BY SMT. VARSHA SINGH THAKUR - GOVT. ADVOCATE)
This appeal coming on for hearing this day, Justice Anil Verma
passed the following:
JUDGMENT
The appellants have preferred present criminal appeal under
Section 374 of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.')
against the impugned judgment dated 19/08/2013 passed by Sessions
Judge, Alirajpur (M.P.) in Sessions Trial No.94/2012, whereby the
appellants have been convicted for the offence under Sections 148, 452
and 302/149 (two counts) of the Indian Penal Code, 1860 (in short 'IPC')
and have been sentenced to undergo 01 year RI, 02 years RI with fine of
Rs.500/- and Life Imprisonment with fine of Rs.2,000/- (two counts)
respectively with usual default stipulation.
02. A report has been received from the Superintendent of Jail,
Central Jain, Barwani (M.P.) that during the releasing on parole,
appellant No.2 Patu @ Patusingh has committed suicide by hanging
himself on 09/12/2021. Letter of Station House Officer, Police Station
Ambua and postmortem report of appellant No.2 in this regard also
annexed with the report. Accordingly, the appeal stands dismissed as
abated to the extent appellant No.2 is concerned.
03. The brief facts of the case are that prior to the incident
complainant Kalu's brother Magan abducted the Ranglibai and took her
with him to Kathiawar (Gujarat), who happens to be the mother of
appellant Dholi. Complainant Kalu along with his wife Selkibai (since
deceased) returned to their home / native place at Village Advaada on the
occasion of festival of Holi. On 12/03/2012, at about 07:00 pm when the
complainant Kalu along with his son and uncle Naanka were having
dinner and Selkibai was serving them food, at that time, appellants
Dholi, Patu and Bhuru along with other co-accused persons came there.
Bhuru and Patu were armed with bow and arrow ( /ka/kyh ,oa foVyk) and
Dholi was armed with faliya. They have started abusing them in filthy
language by saying that your brother has abducted our mother, then Patu
shot an arrow, which hit the ribs of Kalu. Then Dholi gave a blow of
faliya on the neck of Selkibai, due to which she sustained grievous
injury over her neck. Fatya gave a blow of Denga on the mouth of
Naanka. Other co-accused persons have also beaten them by means of
different arms. Thereafter, Kalu ran away from the spot towards the
jungle. On the next morning, after returning he narrated the whole
incident to Suklya, Mana and Remasya and when he returned to the spot,
they found the dead body of Selkibai and Naanka was lying there in
injured condition. Blood stained stones were also found there.
Thereafter, Kalu launched an FIR at Police Station Ambua.
04. Prosecution story is further that Inspector Anis Khan (PW-12)
reached on the spot and prepared Spot (Ex.-P/38) and Dead Body
Panchnama (Ex.-P/42) and sent the dead body of both the deceased for
postmortem. Dr. Sanjay Solanki (PW-11) conducted the MLC of the
victim Kalu. He also performed the postmortem of Naanka and Selkibai
and found multiple injuries along with fractures all over the bodies and
opined that death of both the deceased person are homicidal in nature.
05. The prosecution story is further that Inspector Anis Khan
recovered blood stained and simple soil and blood stained stone from the
place of incident. He has arrested the accused persons and on the basis of
discovery statements made by accused persons, he has recovered a shirt
and bow and arrow from the possession of the Patu. A blood stained
faliya and blood stained shirt was recovered from the possession of
Dholi. Accused Bhuru was arrested on 28/08/2012 and his memorandum
statement under Section 27 of the Evidence Act was recorded. On the
basis of his discovery statement bow and arrow has been recovered from
his possession. All the seized articles were sent to the Forensic Science
Laboratory, Indore for its chemical examination.
06. After completion of the investigation, charge sheet has been filed
against the appellants before the Judicial Magistrate First Class,
Alirajpur, who has committed the case to the Court of Sessions,
Alirajpur. Thereafter, the trial Court framed charges against the
appellants and the appellants abjured their guilt and pleaded complete
innocence. In order to bring home the charges, the prosecution has
examined as many as 12 witnesses, while the defence has not examined
any witness. The trial Court after scrutinizing the evidence available on
record, acquitted co-accused persons namely Fatiya @ Fatya, Raju @
Rajusingh @ Nahaju, Sukhlal @ Suklya and Ditla from all the charges.
Appellant Patu @ Patusingh has also acquitted from the charge under
Section 294 and 323 of IPC and appellants Dholi and Bhuru have been
acquitted from the charge under Sections 294 and 323/149 of IPC, but
they have been convicted and sentenced as mentioned herein above.
Hence, the appellants have preferred this appeal.
07. Learned counsel for the appellants Dholi and Bhuru submits that
appellants are innocent persons and they have been falsely implicated in
this matter. Except complainant Kalu all the other prosecution witnesses
have been turned hostile and not supported the case of prosecution.
There is material contradiction and omission in the statement of Kalu
and his police statement. He is not the eye-witness, therefore, his
statement cannot be relied upon. FIR is also belated. Prosecution has not
examined any independent witness. Prosecution could not prove its case
beyond reasonable doubt. Conviction of the appellants is bad in law.
Hence, impugned order be set aside and the appellants be acquittd from
all the charges.
08. Per contra, learned counsel for the respondent / State opposes the
prayer by supporting the impugned judgment passed by the trial Court
and prays for dismissal of this appeal by submitting that trial Court after
appreciating the entire evidence available on record rightly convicted the
and sentenced the appellants. The judgment passed by the trial Court is
just and proper, hence, no interference is required in the impugned
judgment, therefore, appeal deserves to be dismissed.
09. We have heard learned counsel for the parties at length and
perused the entire record of the trial Court with due care.
10. We find that the following questions have emerged for
consideration:
"(i) Whether, the death of the deceased Selkibai and
Naanka is homicidal in nature or not?
(ii) Whether, the appellants have committed murder of
both the deceased or not?"
11. Dr. Sanjay Solanki (PW-11) categorically stated in his statement
that he has conducted the postmortem of the deceased Selkibai and
Naanka on 13/03/2012 and found as much as five injuries on the body of
deceased Naanka and same five injuries were found on the body of
Selkibai. Multiple fractures have also been found on both the side of ribs
of the Naanka. Left lung of Naanka and left lung and blood vessels of
Selkibai were found ruptured. He opined that death of both the deceased
person was homicidal in nature and their postmortem reports are Ex.-
P/33 and P/35.
12. During the cross-examination of Dr. Sanjay Solanki (PW-11) his
above statement was not challenged by the accused persons. There is no
evidence available on record, which shows that injuries sustained by
both the deceased were caused by themselves or were caused in any
other accident. No serious challenge has been made during the cross-
examination. Thus, there is no reason to disbelieve the findings given by
Dr. Sanjay Solanki (PW-11), therefore, on the basis of above statement
of Dr. Sanjay Solanki and postmortem report (Ex.-P/33 and P/35), it is
proved beyond reasonable doubt that death of both the deceased were
homicidal in nature.
13. Complainant Kalu (PW-8) categorically stated in his statement
that deceased Selkibai was his wife and Naanka was his uncle. At the
time of incident, at about 07:30 pm, when he was in his home and his
wife Selkibai and uncle Naanka were having dinner inside the home, at
that time, some unknown persons came there and show an arrow on the
right side of his chest. Then, accused Dholi, Patu and Bhuru along with
20-25 other persons entered his house. Dholi was armed with faliya,
Patu and Bhuru were armed with bow and arrow and they have
murdered his wife Selkibai and uncle Naanka. At that time, Dalibai was
also present there. Thereafter, accused persons fled away from the spot
and he has lodged an FIR at Police Station Ambua.
14. Dalibai (PW-9) categorically stated in her statement that deceased
Naanka was her husband and at the time of incident, she along with his
husband went to Kalu's house. Her husband Naanka left the home in the
night. On the next day, when she tried to search Naanka, she came to
know that dead body of her husband Naanka was lying nearby the house
of Kalu. Selkibai was also murdered with Naanka. Dalibai has turned
hostile and has not supported the case of prosecution. She also contradict
her police statement (Ex.-P/29). Malsingh @ Malsiya (PW-1), Bholiya
(PW-2), Suklya (PW-3), Remsingh @ Remsya (PW-4), Sabal Singh
(PW-5), Babru (PW-6) and Shabbir Ali (PW-7) have also been turned
hostile and they have not supported the case of prosecution.
15. Learned counsel for the appellants submits that the sole statement
of complainant Kalu is not supported by any independent witness. There
is material contradictions and omissions in his statement, but from
perusal of the statement of Kalu it appears that these contradictions and
omissions are trivial in nature and neither material nor sufficient to
wholly discard his testimony.
16. Hon'ble the apex Court in the case of State of A.P. Vs.
Pullugummi Kasi Reddy Krishna Reddyd reported in (2018) 7 SCC
623 has held as under:-
"Discrepancies which do not shake the
credibility of the witnesses and the basic version
of the prosecution case to be discarded. If the
evidence of the witnesses as whole contains the
ring of truth, the evidence cannot be doubted."
17. The Hon'ble Apex Court in the case of State of M.P. Vs.
Chhaakkilal and oOthers and Ramveer and Chhaakki Lal and
Another reported in 2018 (4) Crimes 238 (SC) has observed that
finding recorded by trial Court is entitled to great weight. The same
cannot be interfered with unless vitiated by serious error. It is also
observed that the evidence as a whole having a ring of truth cannot be
discarded merely because the maker is a related witness. Conviction can
be based on evidence of solitary eye witness. It is further observed that
omissions or lapses in investigation cannot be a ground to discard the
prosecution case which is otherwise credible and cogent. Ocular
testimony of eye witness cannot be discarded lightly. [See: Darshan
Singh Vs. State of M.P reported in 2016(3) MPLJ(Cri.) (SC) 41018).
18. It is true that Kalu (PW-8) is the husband of deceased Selkibai, but
being the husband of the deceased Selkibai his presence at the relevant
point of time is quite natural. His version also appears to be trustworthy
and reliable and well corroborated by statement of Dalibai. FIR (Ex.-
P/37) was promptly lodged and duly proved by the Inspector Anis Khan
(PW-12). Hence, we are not inclined that witness Kalu (PW-8) is
interested witness.
19. Hon'ble the apex Court in the case of Chandrasekar and another
Vs. State reported in (2017) 13 SCC 583 has held as under:-
"Witness being related to deceased, not a
ground to reject his testimony just requiring
greater scrutiny and caution in considering the
same. False implication negated. The intention
to cause death alongwith motive stands
established."
20. So far as motive of the incident is concerned Kalu (PW-8)
categorically stated in his statement and in the FIR that prior to the
incident, his brother Magan abducted and contracted marriage with
Ranglibai, who happens to be the mother of Dholi, therefore, appellant
Dholi and other accused persons were angry with him. The statement of
Kalu is supported by the statement of Dalibai (PW-9), therefore, the
prosecution has successfully proved the motive of the crime also.
21. Investigating Officer Inspector Anis Khan (PW-12) categorically
stated that he has arrested the accused persons vide arrest memo (Ex.-P/8
to P/11) and also recovered faliya from the possession of the appellant
Dholi through seizure memo (Ex.-P/16). On 28/08/2012, he has arrested
absconded accused person Bhuru through arrest memo (Ex.-P/50) and
has also recovered a bow and arrow from the possession of the Bhuru
through seizure memo (Ex.-P/54). Although independent witnesses of
arrest memo, discovery statement and seizure memo namely Bholiya
(PW-2), Babru (PW-6) and Shabbir Ali (PW-7) have been turned hostile
and have not supported the case of prosecution, but there is nothing on
record to disbelieve the statement of Inspector Anis Khan (PW-12).
22. The Hon'ble apex Court in the case of Rameshbhai Mohanbhai
Koli Vs. State of Gujarat and Others reported in (2011) 11 SCC 111,
has held that where the evidence of Investigating Officer, who recovered
the material objects is convincing in evidence as to recovery need not be
rejected on the ground that seizure witnesses did not support the
prosecution version. This citation is completely applicable in the instant
case.
23. On a minute scrutiny of the entire evidence led by prosecution, it
is established beyond reasonable doubt that both the appellants along
with co-accused Patusingh have attacked upon the Naanka and Selkibai
by means of bow and arrow, faliya and other deadly weapons and caused
fatal injury to both the deceased on their vital parts. The statement of
eye-witness Kalu (PW-8) is well supported by the medical evidence as
well as FIR (Ex.-P/37), therefore, statement of Kalu (PW-8) and
Investigating Officer Anis Khan (PW-12) appears to be trustworthy and
on the basis of the aforesaid ocular and medical evidence, it is
established that the appellants along with other co-accused persons, at
the time of incident, illegally entered the house of the complainant Kalu
with an intention to commit crime. They were assembled with a common
object to commit murder of the deceased persons and thereafter, they
have inflicted grievous injuries to both the deceased, therefore, we do
not find that trial Court has committed any illegality or irregularity in
assessing the statements of the witnesses. Since the prosecution has
proved its case beyond all reasonable doubts, therefore, the conviction
and jail sentence of the appellants Dholi and Bhuru under Sections 148,
452 and 302/149 of IPC is accordingly upheld.
24. For the reasons stated above, this is appeal being devoid of any
merit substance is hereby dismissed and conviction and sentence passed
by the trial Court vide judgment dated 19/08/2013 is hereby affirmed.
25. The order regarding disposal of property as pronounced by the
trial Court is also affirmed.
26. Let the record of trial Court along with copy of this judgment be
sent to the concerned trial Court for information and necessary action.
Certified copy as per rules.
(VIVEK RUSIA) (ANIL VERMA)
J U D G E J U D G E
Tej
