Madhya Pradesh High Court
Rahul And Anr. vs The State Of Madhya Pradesh on 29 March, 2023
Author: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
CRIMINAL APPEAL No. 677 of 2013
BETWEEN:-
1. RAHUL S/O TULSIRAM, AGED ABOUT 20
YEARS, OCCUPATION: AGRICULTRIST, R/O
VILLAGE PIPLODA PANTH, POLICE
STATION BHATPACHLANA, DISTT. UJJAIN
(MADHYA PRADESH)
2. SATYANARYAN S/O TULSIRAM, AGED
ABOUT 23 YEARS, OCCUPATION:
AGRICULTRIEST, R/O VILLATE PIPLODA
PANTH, POLICE STATION
BHATPACHLANA, DISTRICT UJJAIN
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI ABHISHEK RATHORE - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION BHATPACHLANA, DISTRICT
UJJAIN (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI AMIT SINGH SISODIA - GOVT. ADVOCATE)
CRIMINAL APPEAL No. 1201 of 2013
BETWEEN:-
BHERUSINGH S/O HAKAMSINGH RAJPUT,
AGED ABOUT 22 YEARS, OCCUPATION:
AGRICULTRIST, R/O VILLAGE PIPLODA
PANTH, DISTRICT UJJAIN (MADHYA PRADESH)
.....APPELLANT
(BY SHRI TULJESH GOYAL - ADVOCATE APPEARING ON BEHALF OF SHRI
DHARMENDRA CHELAWAT - ADVOCATE)
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Signed by: TEJPRAKASH
VYAS
Signing time: 3/29/2023
6:18:29 PM
2
AND
1. STATE OF MADHYA PRADESH THROUGH
POLICE STATION BHATPACHLANA,
DISTRICT UJJAIN (MADHYA PRADESH)
2. TULSIRAM S/O NANURAM, AGED ABOUT
50 YEARS, R/O VILLAGE PIPLODA PANTH,
POLICE STATION BHATPACHLANA,
DISTRICT UJJAIN (MADHYA PRADESH)
3. LAXMIBAI W/O TULSIRAM, AGED ABOUT
45 YEARS, VILLAGE PIPLODA PANTH,
POLICE STATION BHATPACHLANA,
DISTRICT UJJAIN (MADHYA PRADESH)
4. NANURAM S/O MOTI, AGED ABOUT 90
YEARS, VILLAGE PIPLODA PANTH,
POLICE STATION BHATPACHLANA,
DISTRICT UJJAIN (MADHYA PRADESH)
.....RESPONDENTS
(SHRI AMIT SINGH SISODIA - GOVT. ADVOCATE FOR RESPONDENT NO.1;
SHRI ABHISHEK RATHORE - ADVOCATE FOR RESPONDENTS NO.2 TO 4)
Reserved on : 23/02/2023
Pronounced on : 29/03/2023
These appeals having been heard and reserved for orders, coming
on for pronouncement this day, the JUSTICE ANIL VERMA
pronounced the following:
JUDGMENT
The appellants have filed this Criminal Appeal No.677/2013 under
Section 374 of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.')
being aggrieved by the judgment dated 01/05/2013 passed by the
Additional Sessions Judge, Khachrod, District Ujjain (M.P.) in Sessions
Trial No.378/2010, whereby the appellant Rahul and Satyanarayan have
been convicted for offence under Section 302 of the Indian Penal Code,
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VYAS
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1860 (in short 'IPC') and have been sentenced to undergo Life
Imprisonment with fine of Rs.5,000/- each with usual default stipulation.
2. The appellant / injured Bherusingh also filed Criminal Appeal
No.1201/2013 being aggrieved by the same impugned judgment as
aforesaid, whereby respondents No.2 to 4 / co-accused persons namely
Tulsiram, Laxmibai and Nanuram have been acquitted from all the
charges i.e. charge under Section 302/149, 148, 307/149 and 323/149 of
IPC. Since both the appeals are arising out of a common judgment of the
trial Court, both are being decided by this common judgment.
3. The facts of the case in brief are that on 20/07/2010 on the field
of Hakamsingh Rajput, his son and injured Bherusingh were taking care
of the Soyabean crops, at about 10:00 AM, the cattle of the Tulsiram
entered into the field of Dungarsingh and on this issue some quarrel had
taken place between them. On the same issue at about 03:00 PM
appellants Rahul and Satyanarayan along with the co-accused Tulsiram,
Laxmibai, Ratna @ Rasna and Nanuram came there armed with sword
and wooden sticks. Rahul caused injury by means of sword on the left
hand of Bherusingh. Accused Rahul, Satyanarayan and Tulsiram caused
injury to the Dungarsingh with an intention to cause death. Dungarsingh
sustained various injuries, who brought dead to the hospital. On the same
day at about 11:30 AM Laxmibai launched an FIR at Police Station
Bhatpachlana, District Ujjain. The incident was witnesses by
Bhagwansingh and Shravansingh. The MLC of victim person and
postmortem of the deceased Dungarsingh was performed by Dr. Vishal
Kasotiya (PW-17).
4. After completion of the investigation, charge sheet has been filed
before the Judicial Magistrate First Class, Khachrod and charges under
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Section 302, 149, 148, 307 r/w 149, 323 r/w 149 of IPC and Section 25(1)
(1-B)(B) of the Arms Act has been framed against the appellants Rahul
and Satyanarayan and other co-accused persons. The appellants abjured
their guilt and took a plea that they are innocent persons. In order to bring
home the charges, the prosecution has examined as many as 21 witnesses
while the defence has examined two witness. After completion of trial,
the trial Court on appreciating the evidence available on record, convicted
and sentenced the appellants Rahul and Satyanarayan as mentioned herein
above and acquitted the all other co-accused persons Tulsiram, Laxmibai
and Nanuram from all the charges. Hence, these appeals are filed before
this Court.
5. Learned counsel for the appellants Rahul and Satyanarayan
preferred the Criminal Appeal No.677/2013 by submitting that impugned
judgment passed by the trial Court is against the facts of the case and is
also bad in law. Both the appellants are languishing in jail since
22/07/2010. Appellants belong to reserve category, whereas deceased and
others prosecution witnesses belong to Thakur community. Counterblast
FIR was also lodged by Lakhan Singh (PW-1) and third FIR was lodged
by Lakhan Singh and Bherusingh. Three different FIRs were lodged at the
different points of time by the different persons. The death of the
deceased was very suspicious. Appellant Rahul sustained serious visible
injuries, at the time when he had gone to lodge an FIR, but his MLC was
not conducted. As per the postmortem report deceased Dungarsingh does
not sustain any injury by means of sword. Deceased Dungarsingh was
also carrying a Laathi at the time alleged incident took place. The
prosecution has failed to prove its case beyond reasonable doubt.
Deceased could have sustain injury by falling down. All the prosecution
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witnesses are interested witnesses and belongs to same family. Previous
enmity between both the parties has been proved. Under these
circumstances, learned counsel for the appellants prays that impugned
judgment be set aside and appellants Rahul and Satyanarayan be acquitted
from all the charges levelled against them.
6. On the other hand, learned counsel for the respondent/State
opposes the prayer made by counsel for the appellants and prays for
dismissal of Criminal Appeal No.677/2013 by submitting that the trial
Court after proper marshalling of evidence available on record came to
the conclusion that the deceased was murdered by the appellants Rahul
and Satyanarayan and has passed the impugned judgment. There is no
perversity or illegality in the findings recorded by the trial Court. Hence,
appeal deserves to be dismissed.
7. Appellant Bherusingh has filed an appeal under Section 372 of
Cr.P.C. by stating that from the medical report and oral evidence in this
regard, the trial Court has wrongly passed the order of acquittal in favour
of the respondents Tulsiram, Laxmibai and Nanuram. Dr. Vishal Kasotiya
(PW-17) stated that the injury No.1 is a incised wound but it cannot be
caused by sword. All of these three persons have also caused injuries to
the deceased by means of wooden sticks and because of these injuries
deceased was died. The Laathi seized from the possession of the
respondents Tulsiram, Laxmibai and Nanuram contains human blood.
Prosecution witness PW-1 to 4, 6 and 7 have categorically deposed that
they have seen these respondents attacking and causing injury to the
appellant and other victim persons. All the accused persons are jointly and
singly liable for the same act. The judgment of the trial Court is contrary
to law and facts. Hence, he prays that respondents Tulsiram, Laxmibai
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and Nanuram be convicted and sentenced with adequate punishment with
regard to the injuries sustained by the complainant.
8. Learned counsel for the respondents No.2 to 4 in Criminal
Appeal No.1201/2013 also opposes the same prayer and prays for its
rejection by submitting that the trial Court after due appreciation of
evidence on record has rightly acquitted the respondents No.2 to 4 and
therefore, the judgment of the trial Court does not warrant any
interference.
9. 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 is homicidal in
nature or not?
ii) Whether, the appellants Rahul and Satyanarayan
committed offence of murder of deceased Dungarsingh
or not?
iii) Whether, the impugned judgment passed by the
Additional Sessions Judge, Khachrod, District Ujjain
suffers from illegality or error in sentencing the
appellants for the offence under Section 302 of IPC or
not?
iv) Whether, the prosecution has failed to prove the
charges levelled against the respondents Tulsiram,
Laxmibai and Nanuram?
v) Whether, the trial Court has rightly acquitted the co-
accused persons Tulsiram, Laxmibai and Nanuram?"
11. Dr. Vishal Kasotiya (PW-17), who was posted as Medical
Officer at Civil Hospital, Nagda, conducted the Postmortem of the dead
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VYAS
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body of the deceased Dungarsingh, he finds (i) deep lacerated wound of
12 x 10 x 6 cm on right axilla, major vessels tornned to be exposed.
Muscles damaged caused the death; (ii) deep incised wound of 10 x 6 x 4
cm in middle index finger of the right hand; and (iii)Deep incised wound
of 16 x 4 x 4 cm on right side of the frontal parietal temporal region just
above the ear. Bone exposed. He further opined that the cause of death of
Dungarsingh is due to excessive bleeding due to the injuries. The injuries
sustained by the deceased were caused by a sharp edged weapon and
postmortem report is Exhibit-P/26.
12. Dr. Vishal Kasotiya (PW-17) admits in his cross-examination
that the above injuries may be sustained/inflicted upon the deceased due
to stone pelting or due to the repeated fall down on any sharp cutting
object, but there is no evidence available on record which shows that the
deceased sustained injuries in any accident. It is contended by the
appellants that Dr. Vishal Kasotiya also admits in his cross-examination
that such injuries can be caused by means of any sword. Hence, it is
proved that injury No.1 sustained by the deceased caused by the
appellants but Dr. Vishal Kasotiya clarify in his cross-examination that if
any one fell down on any sharp cutting object he may sustain such
injuries. Thus, there is no reason to disbelieve the postmortem report
(Exhibit-P/26) and statement of Doctor Vishal Kasotiya (PW-17).
Therefore, on the basis of the above medical evidence, it is proved that
death of the deceased Dungarsingh, who sustained multiple injuries, is
homicidal in nature, but the question is whether the appellants could be
author of the crime.
13. The prosecution has examined Lakhan (PW-1) as an eye-
witness. He has categorically stated in his statement that at the time of
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incident at about 09-10 AM when he was doing work in the field, at that
time cattle of the accused Satyanarayan entered into the field of
Dungarsingh and on this petty issue some quarrel has taken place between
them. Then Satyanarayan abused the Dungarsingh in a filthy language
and went to his home. Thereafter, at about 03:00 - 03:30 PM while they
were cultivating their field, at that time accused Satyanarayan, Tulsiram,
Rahul, Laxmibai, Ratna and Nanuram came there. Satyanarayan and
Rahul were armed with sword and all the other accused persons were
armed with wooden sticks and they attacked on Dungarsingh and others
by means of sword and wooden sticks. Satyanarayan and Rahul gave a
blow of sword on the hands and other parts of the Dungarsingh. Tulsiram,
Ratna and Laxmibai also caused injury by using wooden sticks. He along
with Bherusingh came to save the Dungarsingh, then Rahul gave two
blows of sword, due to which he sustained injuries on his hand. Nanuram,
Laxmibai, Ratna and Tulsiram also caused injury to the Bherusingh by
using sticks. Tulsiram also gave a blow of stick, due to which he
sustained certain injuries. After five minutes Hakamsingh, Shravansingh,
Bhagwansingh and Dhulsingh came there and thereafter, accused persons
fled away from the spot. Then they took the Dungarsingh to the home of
Hakamsingh and thereafter, by a Jeep they took Dungarsingh to the
Government Hospital, where Doctor declared him brought dead.
14. Bherusingh (PW-2), Hakamsingh (PW-3), Dhulsingh (PW-4),
Bharatsingh (PW-5), Bhagwansingh (PW-6) and Shravansingh (PW-7)
have also been examined before the trial Court as eye-witnesses and all of
them have supported the version of the prosecution. All these eye-
witnesses have deposed in one voice that appellant Rahul and
Satyanarayan were carrying swords in their hands and gave blow to the
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deceased, due to which deceased sustained various fatal injuries and later
on he has been died.
15. Learned counsel for the appellant Bherusingh in Criminal
Appeal No.1201/2013 contended that Dr. Vishal Kasotiya (PW-17) admits
in his cross-examination that prosecution witnesses Bherusingh and
Lakhan Singh sustained such injuries, which were caused 24 hours prior
to the conduction of their MLC (Exhibit-P/24 and 25) but from perusal of
the record it appears that MLC of Bherusingh as well as Lakhan Singh
was conducted on 20/07/2010 and the alleged incident had also occurred
on the same day, therefore, the case of the prosecution is doubtful, but it
is clear that the trial Court has rightly acquitted the co-accused persons
Tulsiram, Laxmibai and Nanuram from all the charges including all the
charges for causing injuries to Bherusingh and Lakhan Singh. Dr. Vishal
Kasotiya admits that injuries sustained by the Bherusingh and Lakhan
Singh may be possible due to accidentally fall down on the field while
running. On the basis of the above medical evidence, it is doubtful that
Bherusingh and Lakhan Singh have sustained injuries in the alleged
incident. Therefore, the trial Court has rightly acquitted the Tulsiram,
Laxmibai and Nanuram from the charges under Section 323 r/w 34 of IPC
for causing injuries to Bherusingh and Lakhan Singh.
16. Learned counsel for the appellants Rahul and Satyanarayan
contended that all the prosecution witnesses (PW-1 to PW-7) are related
with the same community and they are relatives. All are interested
witnesses. No independent witness has been examined by the prosecution.
Therefore, the statement of these witnesses cannot be relied upon. In
support of his contention, he placed reliance upon the judgment delivered
in the case of A. Kadar Mujawar Vs. State of Maharashtra reported in
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(2010) 15 SCC 131.
17. 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."
18. It is important to note that the appellants Rahul and
Satyanarayan themselves admitted in their statement recorded under
Section 313 of Cr.P.C. that they have been falsely implicated in this
matter due to previous enmity.
Animosity is a double edged sword, while it cannot be basis of false
implication, it can also be a basis of crime. (See : Ruli Ram and another
Vs. State of Haryana reported in (2002) 7 SCC 691). In the instant case,
there is no foundation established for the plea of false implication
advanced by the appellants and on the other hand, evidence shows that
enmity has led to the occurrence.
19. Learned counsel for the appellants Rahul and Satyanarayan
further submits that there are so many contradictions and omissions in the
statements of PW-1 to PW-7, but from perusal of all these testimonies,
this Court is of the considered view that the aforesaid contradictions are
trivial in nature and neither material nor sufficient to wholly discard their
testimony.
20. The Hon'ble 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
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the witnesses and the basic version of the prosecution case to
be discarded. If the evidence of the witnesses as as whole
contains the ring of truth, the evidence cannot he doubted."
21. Hon'ble the apex Court in the case of State of M.P. Vs.
Chhaakkilal and Others 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) 410]
22. In view of the aforesaid, this Court is not inclined to accept the
contention of learned counsel for the appellants to disbelieve the
testimony of the eye-witnesses Lakhan Singh (PW-1), Bherusingh (PW-
2), Hakamsingh (PW-3), Dhulsingh (PW-4), Bharatsingh (PW-5),
Bhagwansingh (PW-6) and Shravansingh (PW-7). It is proved that
although all these witnesses belongs to same community and they are
neighbors and relatives also, but their presence at the place of incidence is
quite natural and their version are also found trustworthy and reliable and
also well corroborated by the evidence of Investigating Officer Sub
Inspector J. R. Singh (PW-20).
23. The facts mentioned in the FIR are also duly proved by the
testimony of Lakhan (PW-1) and all other eye-witnesses. FIR was lodged
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promptly by the Lakhan at 07:00 PM. It is also notable that Rahul and
Laxmibai have also lodged two separate FIRs with regard to the incident.
The third FIR was conjointly lodged by Lakhan and Bherusingh,
therefore, this Court is not inclined to treat the aforesaid FIRs as
concocted one.
24. The trial Court has duly relied upon the seizure of iron sword
from the possession of the appellants Rahul and Satyanarayan by seizure
memo (Exhibit-P/18 and P/19), which is duly proved by the statement of
Inspector Narendra Jain (PW-21). The same is also supported by the
statement of seizure witness Sumer Singh (PW-12) and Goverdhan Singh
(PW-13).
25. On the basis of the evidence available on record, it is clear that
the statements of the eye-witnesses are duly corroborated by the medical
evidence available on record, therefore, this Court is not inclined to take a
different view that was taken by the trial Court because the trial Court has
rightly appreciated the entire evidence available on record and gave
specific findings about the guilt of the appellants Rahul and
Satyanarayan. The guilt of both the appellants have been duly established
beyond reasonable doubt. Therefore, we are not inclined to accept the
contentions of learned counsel for the appellants Rahul and Satyanarayan.
We are of the view that the trial Court has rightly convicted the appellants
Rahul and Satyanarayan for the offence under Section 302 of IPC.
Accordingly, Criminal Appeal No.677/2013 is hereby dismissed and the
sentence of Life Imprisonment with fine of Rs.5,000/- for the offence
under Section 302 of IPC is hereby affirmed. The appellant, who is in jail,
shall remain incarcerated to undergo the remaining part of his jail
sentence.
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VYAS
Signing time: 3/29/2023
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26. So far as the Criminal Appeal No.1201/2013 is concerned, the
statements of the alleged injured Bherusingh and Lakhan is not supported
by the statement of Dr. Vishal Kasotiya. At the time of incident, the age of
the respondent No.4 Nanuram was 90 years and now he has turned 103
years. Looking to the age and physical condition of the Nanuram, it is
very difficult accept the contention of the appellant Bherusingh that
Nanuram has actively participated in the whole incident. The presence of
Tulsiram, Laxmibai and Nanuram is also doubtful at the place of
incidence. Therefore, we are of the view that the trial Court has rightly
acquitted the co-accused / respondents No.2 to 4 Tulsiram, Laxmibai and
Nanuram from all the charges.
27. Both the appeals being devoid of merit substance are hereby
dismissed. Disposal of the property shall be as per the orders of the trial
Court.
28. Let a copy of this judgment be sent along with the record 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
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Signed by: TEJPRAKASH
VYAS
Signing time: 3/29/2023
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