Madhya Pradesh High Court
Omprakash vs The State Of Madhya Pradesh on 30 October, 2023
Author: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I NDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
CRIMINAL APPEAL No. 74 of 2016
BETWEEN:-
TEKCHAND S/O POONAMCHAND PATIDAR, AGED
ABOUT 21 YEARS, OCCUPATION: LABORER
VILLAGE RANIGAON P.S.KALUKHEDA (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI ABHAY SARASWAT,ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THRU.P.S.Y.D.NAGAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI TARUN KUSHWAH- GOVERNMENT ADVOCATE)
CRIMINAL APPEAL No. 81 of 2016
BETWEEN:-
TEKCHAND S/O POONAMCHAND PATIDAR, AGED
ABOUT 21 YEARS, OCCUPATION: LABORER
VILLAGE RANIGAON P.S.KALUKHEDA (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI AKHILESH KUMAR SAXENA-ADVOCATE)
(BY SHRI ABHAY SARASWA-ADVOCATE,)
AND
-2-
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THRU.P.S.Y.D.NAGAR (MADHYA PRADESH)
.....RESPONDENTS
( BY SHRI TARUN KUSHWAH-ADVOCATE)
CRIMINAL APPEAL No. 453 of 2016
BETWEEN:-
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THRU. P.S.Y.D.NAGAR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI TARUN KUSHWAH-GOVERNMENT ADVOCATE)
AND
1. LALA @ GAURAV S/O BABULAL AHIR, AGED
ABOUT 22 YEARS, NARAYANGARH,
DISTT.MANDSAUR (MADHYA PRADESH)
2. KANHIYALAL S/O DEVILAL PATIDAR, AGED
ABOUT 46 YEARS, NARAYANGARH MANDSOUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ABHAY SARASWAT-ADVOCATE)
CRIMINAL APPEAL No. 5122 of 2019
BETWEEN:-
OMPRAKASH S/O SHRI SITARAM PATIDAR, AGED
ABOUT 27 YEARS, OCCUPATION: LABOUR VILLAGE
BABUKHEDA, P.S. PIPLIYAMANDI, DISTT.
MANDSAUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI MANISH YADAV, LEARNED COUNSEL FOR THE PETITIONER)
-3-
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THRU. P.S. Y.D. NAGAR, DISTT. MANDSAUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI TARUN KUSHWAH- GOVERHNMENT ADVOCATE)
CRIMINAL APPEAL No. 1246 of 2020
BETWEEN:-
SHANKAR S/O KHEMRAJ LOHAR, AGED ABOUT 22
YEARS, OCCUPATION: LABOUR VILLAGE
MAGRANA PS NAHARGARH (MADHYA PRADESH)
.....APPELLANT
(BY SHRI ABHAY SARASWAT, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THR.PS. YD NAGAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI TARUN KUSHWAH- ADVOCATE)
CRIMINAL APPEAL No. 1247 of 2020
BETWEEN:-
SHANKAR S/O KHEMRAJ LOHAR, AGED ABOUT 22
YEARS, OCCUPATION: LABOUR VILLAGE
MAGRANA PS NAHARGARH (MADHYA PRADESH)
.....APPELLANT
(BY SHRI ABHAY SARASWAT,-ADVOCATE)
AND
-4-
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH PS YD NAGAR, DISTT.
MANDSAUR (MADHYA PRADESH)
.....RESPONDENTS
( BY SHRI TARUN KUSHWAH- GOVERNMENT ADVOCATE)
CRIMINAL APPEAL No. 4406 of 2021
BETWEEN:-
DHARMENDRA SINGH S/O BHARAT SINGH RAJPUT
OCCUPATION: AGRICULTURIST VILLAGE
LASUDIYA EILA (MADHYA PRADESH)
.....APPELLANT
(BY SHRI ABHAY SARASWAT, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH P.S. Y.D. NAGAR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI TARUN KUSHWAH- GOVERNMENT ADVOCATE)
CRIMINAL APPEAL No. 4415 of 2021
BETWEEN:-
DHARMENDRA SINGH S/O BHARAT SINGH RAJPUT
OCCUPATION: AGRICULTURIST VILLAGE LASUDIA
EILA (MADHYA PRADESH)
.....APPELLANT
(BY SHRI ABHAY SARASWAT, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
-5-
OFFICER THROUGH P.S. Y.D. NAGAR, (MADHYA
PRADESH)
.....RESPONDENTS
CRIMINAL APPEAL No. 6315 of 2022
BETWEEN:-
OMPRAKASH S/O SHRI SEETARAM PATIDAR, AGED
ABOUT 27 YEARS, GRAM BABUKHEDA THANA
PIPLIYA MANDI (MADHYA PRADESH)
.....APPELLANT
( BY SHRI TARUN KUSHWAH- ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION Y.D. NAGAR
(MADHYA PRADESH)
.....RESPONDENTS
( BY SHRI TARUN KUSHWAH-GOVERNMENT ADVOCATE)
HEARD AND RESERVED ON : 05.10.2023
JUDGMENT PRONOUNCED ON ; 30.10.2023
JUDGMENT
This appeal coming on for judgment this day, Justice Vivek Rusia
passed the following:
These are two sets of criminal appeals are arising out of two
Session Trials of which the prosecution story is common, thus they are
being decided by this common judgment.
|01| (i) Criminal Appeal No.74/2016 (Appellant:Tekchand Versus the
State of M.P. ), (ii) Criminal Appeal No.1246/2020 (Appellant: Shankar
Versus the State of M.P. ), (iii) Criminal Appeal No.4415/2021 (Appellant:
Dharmendra Singh Versus the State of M.P. ) and (iv) Criminal Appeal
No.6315/2022 (Appellant: Omprakash Versus the State of M.P. ) are
arising out of Judgment dated 30.11.2015 passed in Session Trial
No.265/2012 in respect of Crime No.399/2012 registered against above
these appellants on account of death of Samrath.
|02| (i) Criminal Appeal No.81/2016 (Appellant: Tekchand Versus the
State of M.P. ), (ii) Criminal Appeal No.5122/2019 (Appellant: Omprakash
Versus the State of M.P. ), (iii) Criminal Appeal No.1247/2020 (Appellant:
Shankar Versus the State of M.P. ) and (iv) Criminal Appeal No.4406/2021
(Appellant: Dharmendra Versus the State of M.P. ) are arising out of
Judgment dated 30.11.2015 passed in Session Trial No.266/2012 in
respect of Crime No.398/2012 registered against above these appellants on
account of death of Manohar.
|03| Criminal Appeal No.453/2016 has been filed by the State of
Madhya Pradesh against the judgment dated 30.11.2015 passed in Session
Trial No.266/2012 whereby respondent Lala @ Gaurav and Kanhaiyalal
have been acquitted for the offence punishable under Section 412 of IPC.
|04| Above these appellants in the above 4 criminal appeals have been
convicted for the offence punishable under Section 148, 302/149 and 395
of IPC and sentenced to undergo 1 year R.I., Life Imprisonment and 7
years R.I. with a fine of Rs.5000/- each and Rs. 5000/- each with default
stipulation.
The prosecution story of the case is as under:
|05| On 06.08.2012, Sohan Singh Thakur gave information to Police
Station Y.D. Nagar, District Mandsaur that he was going towards Krishi
Upaj Mandi and seen the gathering of people around the dead body lying
on the field. The said information was recorded at Crime No.399/12 for the
offence punishable under Section 302 of IPC against an unknown person.
The deceased was identified as Samrath Kharol. After some time at some
distance, another body of Manoharlal Nai was found for which Crime
No.398/2012 was registered against an unknown person. The investigation
was started which revealed that Manoharlal Nai was the Driver and
Samrath Kharol was the conductor of a truck bearing registration No.MP-
14-JA-0943 owned by Omprakash Patidar (accused/ appellant). During the
investigation, the Investigating Officer Sanjeev Mule Assistant Sub
Inspector recorded the statement of Alam, Chhotekha, Anand, Dinesh and
Prakash. The accused Tekchand Patidar was arrested on 08.08.2012,
thereafter Omprakash, Lala, and Kanhaiyalal were also arrested. On their
statement recorded under Section 27 of the Indian Evidence Act, the story
which came out is that a New Mahavijay Road Lines Transport loaded 225
sacks of wheat valued at Rs.3,50,056/- in the Truck bearing registration
No.MP-14-JA-0943 for delivery to Parakh Agro. At that time, Manoharlal
Nai was the driver and Samrath was the conductor of the truck. The goods
were not delivered to the Parakh Agro. These appellants namely
Omprakash, Tekchand, Dharmendra and Shankar looted 225 sacks of
wheat and murdered the driver and conductor. Thereafter, they sold these
sacks to Kanhaiyalal and Lala @ Gaurav. The Police recovered 85 sacks
from godown of Narayan and 140 sacks from Neemuch Mandi on
disclosure of Kanhaiyalal.
|06| The based on memorandum statement recorded under section 27
of the Evidence Act Omprakash got recovered knife, cloth, motorcycle,
Tekchand, memorandum statement recorded under section 27 of the
Evidence Act got recovered knife, blood stain clothes and empty liquor
were seized from his house, and Babulal got recovered the receipt of
purchase of wheat and from Lala@ Gaurav. Shankar and Dharmendra were
also arrested, mobile and Moosli were recovered on a memorandum
statement recorded under section 27 of the Evidence Act.
|07| The dead body of Samrath and Manoharlal were sent for
postmortem. A panel of doctors namely Dr. Nishant Sharma, Dr. D.K.
Pippal and Dr. K.C. Dave examined the dead body and opined that both the
deaths were homicidal. They died because of excessive bleeding from stab
wounds on vital parts of the body. Both the bodies were found in
decomposed conditions as death took place three days ago from the date of
postmortem.
|08| After completing the investigation, charge-sheet was filed in both
Session Trials against six accused persons. The trials were committed to
Sessions Courts, the charges were framed against Tekchand, Omprakash,
Dharmendra and Shankar framed under Section 148, 302/149 and 395 of
IPC and against Kanhaiyalal Patidar and Lala@ Gaurav under Section 412
of IPC. They denied the charges and pleaded for trial. In both the trial the
oral as well as documentary evidence were commonly recorded. The
prosecution examined as many as 23 witnesses and exhibited 58
documents in S.T. No.266/2012 and in S.T. No.265 examined 22 witnesses
and exhibited 63 documents. The witnesses are almost common in both
trials. The documentary evidence as well as articles are also common. In
defence, the appellants exhibited four documents in S.T. No. 266/2012 and
S.T. No.265/2012 exhibited three documents. Both the trial was decided
vide judgment dated 30.11.2015. Four accused namely Tekchand,
Omprakash, Dharmendra and Shankar have been convicted for the offence
under Section 148, 302/149 and 395 of IPC and sentenced mentioned
above. Kanhaiyalal and Lala @ Gaurav have been acquitted for the offence
punishable under Section 412 of IPC.
Hence, accused Tekchand, Omprakash, Dharmendra and Shankar
have filed four different appeals in both the Sessions Trial. The State
Government has filed Criminal Appeal No.453/2016 against the acquittal
of Kanhaiyalal and Lala @ Gaurav for the offence punishable under
Section 412 of IPC in S.T. No.266/2012.
We have heard learned counsel for the parties at length and
perused the record of both the Sessions Trial.
|09| As per the prosecution story on 06.08.2012, on information given
by Sakir Gadvi, the dead body of Manoharlal was recovered lying near
LIC Office and on the information of Sohan Singh, the dead body of
Samrath was recovered. Dr. Nishant Sharma, Dr. D.K. Pippal and Dr. K.C.
Dave conducted the autopsy of Samrath and found incised wounds on the
neck, deep of two mandible bones were found cut and 4-5 ribs were found
ruptured. The death took place three days ago. The body was in
decomposed condition, hence the death was found to be homicidal.
Likewise, the dead body of Manoharlal was also examined by Dr. Nishant
Sharma and Dr. D.K.Pippal who found 35 to 40 punctured wounds which
resulted into death. His dead body was also found decomposed condition
and death was homicidal. None of the appellants has challenged the cause
of death and the findings recorded by the learned Sessions Judge,
therefore, we do not need to repeat the same and accordingly affirmed the
findings in respect of death of Samrath and Manoharlal as homicidal.
|10| So far as the motive behind the aforesaid two murders is
concerned, as per the prosecution story in order to loot 225 sacks of wheat,
from the truck the driver and conductor were murdered by the owner of the
truck i.e. Omprakash with the help of other accused persons. Prakash (PW-
1) who was working as a guard at Gurukripa Dhaba found a 6-wheels truck
near the Dhaba. He informed the owner of the Dhaba. The owner of the
Dhaba enquired about the name of the owner of the truck from its
registration number given by P.W.- 1 and after some time police came to
Dhaba and took the truck. The prosecution examined Dinesh (PW-3) who
was working as Manager in New Mahavijay Road Lines Transport owned
by Mr. Nijamkha and according to him, he loaded 225 sacks of wheat in
the truck bearing registration No.MP-14-JA-0943, which was owned by
Omprakash Patidar and the driver of the truck was Manoharlal and the
Conductor was Samrath. The truck left the depot at 08:30 to deliver the
wheat to Parakh Agro but the truck did not reach the destination. Later on,
he came to know that the dead bodies of the driver and conductor were
found in the open place. Police seized original copy of bilty and other
documents from him. In cross-examination, he admitted that he got back
all sacks by way of supardgi nama from the Court and there was no loss
to the owner of the transport company, thus from the evidence of Prakash
(PW-3), it is established that 225 sacks of wheat were loaded in the truck
bearing registration No.MP-14-JA-0943 which was driven by Manohar
and in which Samrath was the conductor. The said evidence remained
unrebutted. The aforesaid loading of 225 sacks of wheat has also been
established by the prosecution by examining Chhotekha (PW-4) guard of
Transport Nagar, Alamkha (PW-7) and Ismiel (PW-10).
|11| The prosecution examined Naveen PW-21, who was working as a
driver at Amrit Refinery, the Omprakash owner of the truck was also
working as Supervisor. Omprakash offered him to drive the truck for
which he would pay Rs. 20000/-for which Naveen refused. In the month of
August, 2012, Omprakash told him that his loaded truck was parked in the
Mandi and requested him to deliver the same to Kanhaiyalal Patidar,
Narayangarh and for which he would give Rs.20,000/. Naveen suspected
some felony, as Rs.20,000/- was offered for transportation of truck for
such a short distance. Omprakash made nine calls to him but he did not
receive them. Later on, he came to know that the driver and conductor of
the same truck were murdered. He believed that it was an act of
Omprakash Patidar. In cross examination, he denied that the police never
recorded his statement and that he never produced his driver's license.
|12| On 08.08.2012, the Investigating Officer formerly arrested
Tekchand Patidar and thereafter Kanhaiyalal, Lala @ Gaurav and
Omprakash were arrested in Crime No.398/2012 and formally arrested in
FIR No.399/2012. Thereafter their memorandum statement under Section
27 of the Indian Evidence Act was recorded in which they narrated entire
story. Tekchand got recovered the knife and shirt in which blood stain were
there in S.T. No.266/2012. Omprakash has also got recovered a knife in
which blood stains were there in S.T. No.266/2012. Vide letter dated
02.10.2012, all seized articles, blood stains soil cloths and cigarette filters
found on the spot were sent to the FSL, DNA Unit, Sagar.
|13| The DNA Report Ex. P/43 in S.T. No.266/2012 revealed that the
male DNA profile obtained from the cloth of Samrath is similar to the
DNA profile of the blood found in the knife recovered from Tekchand
Patidar, likewise the male DNA profile obtained from blood on the cloth of
Manohar similar to the DNA profile of the blood found in the knife
recovered from Omprakash. Article ''C'' i.e. hair found on the spot, the
DNA matched with the Tekchand. Likewise cigarette filter article ''D'', the
DNA profile matched with the Omprakash, therefore, the presence and
involvement of Tekchand and Omprakash were established on the basis of
DNA report. Thereafter, police collected the mobile location and call
record of all these four accused, from the mobile company. The
prosecution examined Ajay Sharma (PW-17), who only obtained details of
call exchange between numbers but he had no information about the nature
of the conversation, therefore, recoveries of blood stains clothes and knife
from Omprakash and Tekchand have been duly established beyond doubt
to implicate and convict them. Therefore all circumstances have been
established but nothing incriminating has been found against appellants
Shankar and Dharmendra. They have been implicated only on the basis of
a memorandum under Section 27 of the Indian Evidence Act which is
inadmissible in the law for conviction in the absence of an order
incriminating material. From the house of Shankar, only Karbonn mobile
and Moosli and from the house of Dharmendra mobile were recovered.
There is no DNA report against Shankar and Dharmendra to connect them
to this crime, so the conviction of Shankar and Dharmendra cannot be
upheld. There is no CDR to establish their location with Tekchand and
Omprakash.
|14| So far as Criminal Appeal No.453/2016 filed by the State of M.P.
against the acquittal of Lala @ Gaurav and Kanhaiyalal is concerned, they
are not accused under Section 148, 302/149 and 395 of IPC, the only
allegation against them they purchased the looted wheat from Omprakash
and Tekchand. Police have only recovered call exchange between
Omprakash and Kanhaiyalal and Lala @ Gaurav from 04.08.2012 to
06.08.2012 and thereafter recovery of wheat from them but it has not been
proved that these mobiles were registered into the name of Kanhaiyalal
and Lala @ Gaurav. The nature of the conversation has also not been
established. To convict under Section 412 of IPC, the burden upon the
prosecution to establish that they purchased the looted article knowingly
on a lesser price. In the absence of this evidence, they have rightly been
acquitted by the Trial Court.
In view of above discussion, all the criminal appeals are here
by disposed of as under :-
|i| Criminal Appeal No.4406/2021 (Appellant Dharmendra V. the
State of M.P. ) and Criminal Appeal No.4415/2021 (Appellant Dharmendra
V. the State of M.P. ) are allowed. Judgment of conviction and order of
sentence dated 30.11.2015 passed by Third Additional District Judge,
Mandsaur in S.T. No.266/2012 and S.T. No.265/2012 for the offence
punishable under Section 148, 302/149 and 395 of IPC is set aside.
|ii| Criminal Appeal No.1247/2020 (Appellant Shankar Versus the
State of M.P. ) and Criminal Appeal No.1246/2020 (Appellant Shankar
Versus the State of M.P. ) are allowed. Judgment of conviction and order
of sentence dated 30.11.2015 passed by Third Additional District Judge,
Mandsaur in S.T. No.266/2012 and S.T. No.265/2012 for the offence
punishable under Section 148, 302/149 and 395 of IPC are set aside.
|iii| Criminal Appeal No.5122/2019 (Appellant Omprakash V. the State
of M.P. ) and Criminal Appeal No.6315/2022 (Appellant Omprakash V.
the State of M.P. ) are dismissed. Judgment of conviction and order of
sentence dated 30.11.2015 passed by Third Additional District Judge,
Mandsaur in S.T. No.266/2012 and S.T. No.265/2012 for the offence
punishable under Section 148, 302/149 and 395 of IPC are affirmed in
respect of Omprakash.
|iv| Criminal Appeal No.81/2016 (Appellant Tekchand v. the State of
M.P. ) and Criminal Appeal No.74/2016 (Appellant Tekchand v. the State
of M.P. ) are dismissed. Judgment of conviction and order of sentence
dated 30.11.2015 passed by Third Additional District Judge, Mandsaur in
S.T. No.266/2012 and S.T. No.265/2012 for the offence punishable under
Section 148, 302/149 and 395 of IPC are affirmed in respect of Tekchand.
|v| Criminal Appeal No.453/2016 filed by State of M.P. against the
acquittal of Lala @ Gaurav and Kanhaiyalal is dismissed. The judgment of
acquittal dated 30.11.2015 passed by Third Additional District Judge,
Mandsaur in S.T. No.266/2012 is affirmed.
|vi| The appellants namely Dharmendra and Shankar be released from
custody forthwith and be set as liberty at once, if not wanted in connection
with any other case. Their bail bonds stand discharged. The fine amount
deposited by them if any, be returned to them.
Let copy of this judgment be sent to the councerned Court
alongwith record for compliance.
Let photocopy of this judgment be kept in connected Criminal
Appeals.
Certified copy as per rules.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
PRAVEEN
Digitally signed by PRAVEEN
Date: 2023.10.31 18:34:03
+05'30'
