Madhya Pradesh High Court
Bhikla vs The State Of Madhya Pradesh on 28 June, 2023
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 9341 of 2018
(BHIKLA AND OTHERS Vs THE STATE OF MADHYA PRADESH)
Dated : 28-06-2023
Shri Vivek Tankha, learned Senior Counsel with Ms. Sonali Goyal and
Shri Aditya Goyal, learned counsel for the appellant No. 2.
Shri Tarun Pagare, learned Govt. Advocate for respondent/State.
Heard on IA No. 5616/2022 which is 3rd application for suspension of
sentence on behalf of appellant No. 2 Doorsingh.
2) Appellant has been convicted and sentenced by judgment dated
22.11.2018 passed by District & Sessions Judge, Alirajpur in S.T. No. 82/2013
under Sections 147, 148, 302/149 (on two counts) of IPC & 25(1-b)(a) & 27 of
Arms Act and and sentenced to undergo 1 year RI, 2 years RI, life imprisonment
(on two counts), 1 year RI & 3 years RI and fine of Rs.500/-, 2000/-, 5000/-,
500/- & 1000/- with default stipulation.
3) The first application for suspension of sentence of appellant Doorsingh
was dismissed on merit on 08.04.2019. The appellant moved second application
for suspension of sentence which was again dismissed on 22.10.2021 finding no
reason to revisit the same issue and to take a different view.
4) Learned senior counsel for the appellant submitted that some points have
not been brought to the notice of this Court while considering first time the
application for suspension of sentence on behalf of appellant Doorsingh and,
therefore, the application be considered on merit again.
5) The prosecution case is that an information was given by complainant
Rajan upon which a Dehati Nalishi (Ex.P/1) was drawn, disclosing that on
23.08.2012 at around 09:00 PM a phone call made by one Kalu Sarpanch was
received by Sevan on his mobile. It was stated by Kalu Sarpanch that he was
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 30-06-2023
11:53:03
coming with another person named Sardar from Baroda and that they had reached
Kunavat and asked him to send two persons to escort them. Thereafter,
complainant and another person named Shankar left on their motorcycle for
Kunavat from Budda. At around 9:30 pm complainant and Shankar reached Ukla
Tekra Aamroad where they saw Kalu and Sardar at a distance withe the help of
torch light, coming on a motorcycle. It came to their notice that a 'Bolero Jeep'
belonging to another person named Vesla was parked there and suddenly people
sitting in the vehicle came out. Complainant identified appellant Doorsingh, Dudla,
Bhikla, Suresh, Deewan, Sevan, Narpat, Kesharsingh, Kevji and 7 others with the
help of torchlight and alleged that they were all armed with weapons. It was
further disclosed that all the accused persons surrounded Kalu and Sardar and
fired bullets from gun and country made pistols, after which they fell along with
their motorcycle. Thereafter, Sardar and Kalu were allegedly assaulted by Faliyas
and when accused persons tried to approach the complainant and Shankar, they
managed to run away from the spot on their motorcycle.
6) Thereafter, next morning, complainant and Shankar went to a place
called Barda to see Kalu and Sardar, but they were not found. Thereafter both
were accompanied to the spot by few persons from Barda village namely, Maldas,
Sevan, Saku, Sukhdev and Adesingh where they found blood spots, fired
cartridges and country made pistol lying on the spot. On the basis of the same,
FIR Ex.P/77 was registered at Crime No. 58/2012 for offences punishable under
Section 302, 201, 147, 148 and 149 of IPC and Section 25, 27 of the Arms Act.
7) Initially there were 14 accused in the case, 9 accused persons were
acquitted and 5 have been convicted namely Bhikla, Doorsingh, Kevji, Sevan and
Keshar Singh under Section 302/149 of IPC for life on 2 counts, under Section
147 of IPC RI for one year, under Section 148 of IPC RI for 2 years. The
appellant Doorsingh and Kevji are also convicted under Section 25(1-B)(a) of
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Signed by: SOUMYA
RANJAN DALAI
Signing time: 30-06-2023
11:53:03
Arms Act, RI for one year and under Section 25 of Arms Act RI for 3 years.
8) As per the prosecution case it is alleged that accused persons fired shots
and assaulted Kalu Sarpanch and Sardar with Faliya leading to their murder. The
incident was witnessed by two eyewitnesses i.e. complainant Ranjan (PW-1) and
Shankar (PW-2). As per the postmortem report, the cause of death of both the
deceased were gunshot injuries.
9) Counsel for the appellant submits that the application requires
reconsideration on the following grounds: 1) eyewitnesses have not supported the
prosecution case. Eyewitnesses PW-1 Ranjan and PW-2 Shankar have not turned
hostile and they have not supported the prosecution case. The recovery of gun
after period of 4 years is not proved by the prosecution as the seizure witnesses,
PW-3 Mathuriya, PW-24 Bhaya, PW-26 Rangraj, PW-32 Bhadu Singh had
turned hostile. It is further argued that the recovery of gun is not proved as PW-26
Rangraj and Dipak have not supported the prosecution case. Dipak was not
examined by the prosecution. It is further argued that chain of custody was not
followed and the gun was tampered. He referred to Ex.P/65 seizure memo and the
statement of witness PW-28, who has stated that total length of gun A/2 which is
alleged to be seized from the present appellant is 46 inch and also referred the
statement of PW-36 Ex.P/68 Armourer, who has stated length of gun is 49 inch.
He also referred Ballistic report Ex.P/69. It is alleged that the gun allegedly
recovered from Doorsingh as compared with the gun sent to the Armourer had
varied dimensions and, therefore, the prosecution case becomes doubtful.
10) Counsel for the State opposed the prayer for suspension of sentence
mainly on the ground that all these grounds were available to the appellant at the
time of hearing of first and second application for suspension of sentence and,
therefore, the application cannot be reconsidered in the form of review of the
order. He further submitted that PW-1 Rajan has stated that the appellant was
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Signed by: SOUMYA
RANJAN DALAI
Signing time: 30-06-2023
11:53:03
holding a gun in his hand and fired from the same. The contradictions in respect of
length of the gun would not be material as in the ballistic report Ex.P/69 it has
been clearly stated that the gun which is Article A/2 alleged to be seized from the
present appellant has been found to be in working condition and the live cartridges
seized from the spot could have been fired by the said gun. The report is duly
proved by the testimony of PW-36 Kalusingh. There is no cross-examination to
the I.O. PW-33 Andreas Katara regarding recovery of gun and sending the same
to the ballistic expert making same doubtful. His testimony in this regard remained
uncontroverted.
11) After hearing learned counsel for the parties and taking into
consideration the statement of PW-1 Rajan, who has supported the prosecution
case on first occasion i.e. 17.10.2013 that he had seen the accused armed with the
gun and fired the same. The gun has been recovered after a period of 4 years
from a room of the house of the present appellant. The ballistic report and PW-36
Kalusingh armourer have proved the prosecution case. The ballistic report clearly
states that the gun seized from the appellant was found to be in working condition
and the live cartridges seized from the spot could have been fired by the said gun.
12) We do not find any case for grant of suspension of jail sentence even
on the new grounds which have been canvassed by the learned counsel for the
appellant to take different view from the previous view taken at the time of
consideration of first and second application. I.A. No. 5616/2022 is dismissed.
(VIJAY KUMAR SHUKLA) (ANIL VERMA)
JUDGE JUDGE
soumya
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 30-06-2023
11:53:03
