Madhya Pradesh High Court
Ashique Gulla vs The State Of Madhya Pradesh on 7 February, 2024
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
CRIMINAL APPEAL No. 1219 of 2012
BETWEEN:-
TAKDEER SHAH AND ANR. S/O BABU SHAH,
AGED ABOUT 22 YEARS, OCCUPATION:
1.
LABOURER VILLAGE MULTANPURA (MADHYA
PRADESH)
ILIYAS SHAH S/O BABU SHAH, AGED ABOUT 29
2. YEARS, OCCUPATION: LABOUR VIL
MULTANPURA (MADHYA PRADESH)
.....APPELLANT
(BY MS. SHARMILA SHARMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT. THRU. P.S.
Y.D. NAGAR MANDSAUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI TARUN KUSHWAH - GA )
CRIMINAL APPEAL No. 1249 of 2012
BETWEEN:-
SHAHJAD S/O SHRI MOBIN GAALA, AGED ABOUT 20
YEARS, OCCUPATION: LABOUR MAGRI NAI
AABADI MULTANPURA TEH. MANDSAUR (MADHYA
PRADESH)
.....APPELLANT
(BY MS. SHARMILA SHARMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT. THRU.
Signature Not Verified
Signed by: AMOL
NIVRUTTIRAO MAHANAG
Signing time: 08-02-2024
16:40:36
2
P.S. Y.D. NAGAR MANDSAUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI TARUN KUSHWAH - GA )
CRIMINAL APPEAL No. 1313 of 2012
BETWEEN:-
ASHIQUE GULLA S/O SALIM GULLA, AGED
ABOUT 19 YEARS, OCCUPATION: LABOUR
MULTANPURA,TEH. AND DISTT.MANDSAUR
(MADHYA PRADESH)
.....APPELLANT
(BY MS. SHARMILA SHARMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT.
THRU.P.S.Y.D.NAGAR MANDSAUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI TARUN KUSHWAH - GA )
CRIMINAL APPEAL No. 1321 of 2012
BETWEEN:-
RAIS @ BANJHA MUHASEWALA S/O YUSUF
MUHASEWALA, AGED ABOUT 20 YEARS,
OCCUPATION: LABOURER VILLAGE
MULTANPURA (MADHYA PRADESH)
.....APPELLANT
(BY MS. SHARMILA SHARMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT. THRU.
P.S. Y.D. NAGAR MANDSAUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI TARUN KUSHWAH - GA )
CRIMINAL APPEAL No. 1324 of 2012
BETWEEN:-
Signature Not Verified
Signed by: AMOL
NIVRUTTIRAO MAHANAG
Signing time: 08-02-2024
16:40:36
3
RAGHU @ SARFARAJ AND ANR. S/O HAMID
RAMPURIYA, AGED ABOUT 24 YEARS,
1. OCCUPATION: LABOUR VILLAGE
MULTANPURA TEH. MANDSAUR (MADHYA
PRADESH)
MAKSOOD S/O AFSAR BATLA, AGED ABOUT 22
2. YEARS, VIL. MULTANPURA TEHSIL & DIST.
MANDSAUR (MADHYA PRADESH)
.....APPELLANT
(BY MS. SHARMILA SHARMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT. THRU.
P.S. Y.D. NAGAR MANDSAUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI TARUN KUSHWAH - GA )
CRIMINAL APPEAL No. 1656 of 2013
BETWEEN:-
YUSUF GULLA S/O MOHAMMAD, AGED ABOUT 19
YEARS, OCCUPATION: LABOURER VILLAGE
MULTANPURA (MADHYA PRADESH)
.....APPELLANT
(BY MS. SHARMILA SHARMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT. THRU.
P.S. Y.D. NAGAR, MANDSAUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI TARUN KUSHWAH - GA )
---------------------------------------------------------------------------------------------------------
Reserved on 01/02/2024
Pronounced on : 07/02/2024
Whether approved for AFR : YES
---------------------------------------------------------------------------------------------------------
These appeals having been heard and reserved for judgment,
coming on for pronouncement this day, Justice Anil Verma passed the
Signature Not Verified
Signed by: AMOL
NIVRUTTIRAO MAHANAG
Signing time: 08-02-2024
16:40:36
4
following:
JUDGMENT
Since all these six appeals have been filed against the common
impugned judgment, therefore, the same are being decided by this
common judgment.
2/ All these appeals have been filed by all the appellants under
section 374 of Criminal Procedure Code, 1973 ( in short "Cr.P.C) against
the impugned judgment dated 25/09/2012 passed by 5th Additional
Sessions Judge, Mandsaur in Sessions Trial no. 229/2011, whereby all
the appellants have been convicted under sections 148, 332/149 and
302/149 of IPC and sentenced to undergo one year R.I with fine of Rs.
1000/- each; two years R.I with fine of Rs. 2000/- each and life
imprisonment with fine of Rs. 3000/- each respectively with usual
default stipulation.
3/ Prosecution case in brief is that on 18-07-2011 at night at
about 08:40 PM police constable Mukesh Singh Bhadoriya and Brajraj
Singh were posted at P.S. Y.D. Nagar in cobra Scott on special duty.
During patrolling, when they turned to village Multanpura and reached
near house of Ibrahim Aldad, they saw accused Raghu @ Sarfiraz
having Katta in his one hand and one steel pipe in another hand and
accused Maqsud Batla, Ashiq Gulla and Yusuf Gulla also having steel
pipe and accused Shehzad Gulla, Takdeer Shah, Iliyas and other one
person having stick in their hands and they surrounded near Mukesh
Singh Bhadoriya and Brajraj Singh. At that time,accused Raghu @
Sarfraz fired by katta. Both of police constable fell down and escaped
from gun fire. Accused Sarfraz and other accused person were talking
that both came daily for caught us and today they would kill them.
Thereafter all of them inflicted injury to both of them. When
complainant Mukesh Singh Bhadoriya made hue and cry, at that time
other cobra scott person Jitendra and Rakesh come on the spot for his
rescue, thereafter accused person run away from the spot. Constable
Jitendra and Rakesh took Brajraj for treatment in civil hospital,
Mandsaur. During treatment. Barajraj Singh died. Complainant Mukesh
Singh Bhadoriya lodged Dehati Nalishi. Accordingly, later on, the merg
and FIR was registered.
4/ Prosecution case in further is that Sub-Inspector Musa Khan
went on the spot and prepared Naksha Panchanama and spot map and
also recovered blood stained soil, simple soil and deceased's hairs from
the spot. Police arrested all the accused persons in presence of witnesses
and their disclosure statements were recorded. At the instance of accused
persons, iron rod, sticks and some of the blood stained clothes were
recovered. Postmortem of the deceased was conducted by Dr. D.K.
Sharma (PW-23) and found that the deceased sustained fatal injuries
over his head and cause of death is due to acute head injury by hard and
blunt object and death is homicidal in nature. MLC of victim Mukesh
Singh Bhadoriya was conducted by concerned doctor. Seized articles
were sent to FSL, Sagar for its chemical examination and DNA test.
Thereafter, FSL report was received. Duty certificates of both the
constables were obtained. District Magistrate, Mandsaur gave
prosecution sanction for the offences under sections 25 and 27 of the
Arms Act.
5/ After completion of investigation, charge-sheet was filed
before the JMFC, Mandsaur, who committed the case to the Court of
Sessions Judge, Mandsaur, which was, later on, transferred to the Court
of 5th ADJ, Mandsaur. Prosecution examined as many as 30 witnesses
and defence examined 6 witnesses. The trial Court, after appreciating
evidence available on record, convicted all the appellants under sections
148, 332/149 and 302/149 of IPC and sentenced as mentioned herein
above and also acquitted accused Abdul Rahman, Javed Ratlami, Annu
Niyargar and Smt. Rukhsana bi from all the charges. Hence the
appellants have preferred all these appeals separately.
6/ Learned counsel for the appellants contended that judgment
of conviction passed by the trial Court is contrary to law and facts on
record. It is neither legal, nor just, proper and correct. Statement of sole
eye witness Mukesh Singh Bhadoriya does not inspire confidence. There
is material contradictions and omissions in his statement and Dehati
Nalishi and the police statement. At the time of the incident, he ran away
from the spot, therefore, identification of the appellants is also doubtful.
Independent witness does not support the case of prosecution. Dr. D.K.
Sharma (PW-23) admits in his cross-examination that the victim may
sustain injuries due to fall down on earth. The complainant lodged false
report. Place of the incident is not proved by the prosecution.
Investigation is tainted and partial. Hence, learned counsel prays that all
the appeals be allowed and judgment of conviction passed by the trial
Court be set aside and all the appellants be acquitted from all the charges
levelled against them.
7/ Per-contra, learned counsel for the respondent/State opposed
the aforesaid prayer and supports the impugned judgment passed by the
trial Court and prays for its dismissal by submitting that the trial Court
after appreciating entire evidence available on record in detail, came to
the conclusion that deceased Brajraj and injured Mukesh Singh
Bhadoriya were discharging their official duty at the time of the incident.
In furtherance of common object, accused persons committed murder
the deceased and caused injuries to victim Mukesh Singh Bhadoriya.
Judgment passed by the trial Court is based upon cogent evidence,
therefore, all the six criminal appeals deserve to be dismissed.
8/ Heard learned counsel for both the parties at length and
perused the record of trial Court with due care.
9/ After due appreciation of evidence, following questions
have emerged for consideration :
i) Whether death of deceased Brajraj is homicidal
in nature ?
ii) Whether all the appellants were inspired with
common object and in furtherance of their common object,
they have committed the alleged offence ?
iii) Whether deceased Brajraj and victim Mukesh
Singh Bhadoriya were discharging their official duty at the
time of the incident and the appellants have caused injuries
to victim Mukesh Singh Bhadoriya?
10/ First of all, it is to be considered, as to whether death of the
deceased is homicidal in nature. Dr. D.K. Sharma (PW-23) who
conducted postmortem of deceased/constable Brajraj. According to him,
blood was found on scull hairs, both shoulders, neck of deceased and on
parietal region, one lacerated wound size 9 x 4 cm bone deep was found
and second lacerated wound was found on right side of temporal region
size 8 x 5 cm bone deep. Third lacerated wound was found on right
frontal portion of head size 2 x 5 x 2 cm bone deep and right ear was
found ruptured and during internal examination, right parietal, right
temporal and right occipital bone found fractured. It was also found that
broken pieces of bones were found in the brain of the deceased. He
opined that all the injuries were caused by hard and blunt object and
antimortem in nature and the deceased died due to acute head injuries
within 12 - 16 hours.. His postmortem report is Ex.-P/40.
11/ Although learned counsel fot the appellants contended that
at the time of the incident, the deceased and the victim Mukesh Singh
Bhadoriya were travelling on motorcycle and due to accident, they fall
down from the motorcycle and deceased sustained acute head injury, but
Dr. D.K. Sharma (PW-23) in his cross-examination denied all these
suggestions. If the deceased was fell down from the motorcycle, he
should have sustained abrasion and other injuries on other parts of the
body, but he sustained only four injuries on his right side of head,
therefore, the contention made by learned counsel for the appellants
cannot be accepted, because the appellants did not examine any witness
to prove that the deceased sustained injury in any type of accident. Thus,
there is no reason to disbelieve the statement of Dr. D.K. Sharma (PW-
23) and postmortem report Ex-P/40.
12/ On the basis of the above, it is proved that the deceased
sustained four injuries over his head, which are homicidal in nature. So
far as injuries of victim Mukesh Singh Bhadoriya is concerned, he
categorically stated in his statement that he was beaten by iron rod and
wooden stick, due to which, he sustained certain injuries. Dr.Nishant
Sharma (PW-27), who conducted MLC of victim Mukesh Singh
Bhadoriya deposed that one lacerated wound size 1x 1 cm has been
found on left shoulder and abrasion size 1 x ½ cm was found on the back
. Both the injuries were simple in nature and caused by hard and blunt
object within 24 hours of MLC Ex.-P/79). The appellants did not
challenge the statement of Dr. Nishant Sharma and MLC Ex-P/79,
therefore, on the basis of aforesaid medical evidence, it is proved that
victim sustained simple injury in the incident.
13/ Now, a question remains open, whether appellants are the
author of the crime ?. Sole eye witness Mukesh Singh Bhadoriya (PW-
1) has categorically stated that on 18/07/2021 at about 8.40 pm, he
alongwith deceased/constable Brijraj went near bit no. 1 for collecting
information in civil uniform. When they reached near Multanpura in
front of house of Ibrahim Aldad, at that time, accused Raghu @ Sarfaraz,
Maqsood, Yusuf, Ashiq, Shahzad, Banja Muchwala, Iliyas, son Badshah
and Taqdir Shah came there and appellant Raghu was armed with katta
and iron rod and accused Maqsood, Yusuf and Ashiq were armed with
iron rod and other accused persons were armed with lathies. They
surrounded them. Appellant Raghu fired gun shot by katta at them. They
fell down on earth and escaped themselves from gun shot. Accused
persons were saying that both came here daily to get hold of us. Today,
they would kill them. Thereafter, the accused persons surrounded them
and started beating them by iron rod and wooden sticks. He fled away
from the spot to save himself, but accused persons started beating
deceased Brajraj and caused injuries over his head. Afte hearing hue and
cry, constable Jitendra and Rakesh came there, then accused persons fled
away from the spot. They took the deceased to hospital, but he was
declared dead.
14/ Jitendra (PW-5) also corroborated in his statement that he
reached on the spot after hearing hue and cry made by Mukesh Singh
Bhadoriya. He saw in the light of motorcycle that appellant Raghu @
Sarfaraz, Ashiq Gulla, Maqsood Batala, Yusuf Gulla were armed with
iron pipes and Imtiyaz Shah, Taqdir Shah Rais, Shahjad Galla were
armed with lathies and they were beating deceased/ constable Brijraj,
who fell down in gutter (nali) and blood was oozing from his head.
When he ran towards them, the accused perons fled away from the spot.
Ajit Singh (PW-4) also deposed that when reached on the spot, constable
Brajraj was lying in gutter and blood was oozing out from his head.
Jitendra, Mukesh Singh Bhadoriya and Rakesh informed that accused
persons Raghu @ Sarfaraz, Maqsood, Yusuf, Ashiq, Shahzad, Banja
Muchwala, Iliyas, son Badshah and Taqdir Shah committed Marpeet
with them.
15/ Rakesh Singh (PW-10) also supported the same by stating
that when he reached on the spot, he saw the incident in the light of
motorcycle and accused persons were beating him by means of iron rod
and wooden sticks and saying that they would kill them. When he
reached the spot, the accused persons ran away from the spot.
16/ Although learned counsel for the appellants contended that
witnesses Mukesh Singh Bhadoriya (PW-1), Jitendra (PW-3), Ajit Singh
(PW-4), Rakesh (PW-10) are police constables and colleagues of
constable/deceased Brijraj. Since they are interested witnesses, therefore,
their statements cannot be relied upon.
17/ Hon'ble Supreme Court in the case of Mahaveer Singh Vs.
State of MP reported in (2016) 10 SCC 220 held that it is to be seen
that, although the evidence of a chance witness is acceptable in India, yet
the chance witness has to reasonably explain the presence at that
particular point, more so when his deposition is being assailed as being
tainted, therefore, this witness cannot be relied upon.
18/ Although deceased Brijraj, injured Mukesh Singh
Bhadoriya, Ajit, Rakesh were working in police department as constable,
but they were performing their official duty at the time of the incident;
they have no common intention for falsely implication of the appellants
therefore, they cannot be considered as interested witnesses.
19/ Learned counsel for the appellants contended that there are
material contradictions and omissions in the statements of these material
witnesses with their police statements. Although some of the
contradictions and omissions have been found in the statements of these
witnesses, but the same are trivial in nature and there is no reason to
make any doubt upon their presence on the spot at the time of incident.
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
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/ From close scrutiny of the statement of testimony of all
these witnesses, this court is of the considered view that the trial court
has rightly held that such contradictions and omissions are trivial in
nature and same is neither material nor sufficient to discard their
testimony which are duly corroborated by statement of each other.
22/ The Hon'ble 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]
23/ Investigating Officer Musa Khan (PW-16) deposed that he
wrote Dehati Nalishi Ex.-P/1 at the instance of complainant Mukesh
Singh Bhadoriya and reached on the spot and prapared Naksha
Panchanama Ex.-P/38 and P/39. He recorded the discovery statement of
accused Ashiq Gulla and Javed Ratlami and arrested them vide arrest
memo Ex.-P/41 and P/42. Inspector Ashutosh Mishra (PW-22) deposed
that he arrested accused person vide arrest memo Ex.-P/54 and P/55 and
on the statement of disclosure statement, he recovered pistol / katta
( Article A/17) and cartridges ( Article A/18 to Article A/20) from the
possession of appellant Raghu @ Sarfaraz and Maqsood Batala. Police
Station In-charge Inspector Sanjeev Mule (PW-26) similarly deposed
that he had arrested accused Takdeer Shah, Rais, Shahjad, Iliyas through
arrest memo Ex.-P/16 to P/19 and also recorded their disclosure
statements vide Ex.-P/20 to P/23 and recovered iron rod and wooden
stick from their possession through seizure memo Ex.-P/24 ro P/27.
Thereafter, he sent all these seized weapons for query report to CMO,
District Hospital, Mandsaur and query report is Ex.-P/62. Then he sent
all the articles to FSL Sagar for its chemical examination and DNA
profile report through Ex.-P/68. Ex.-P/69 has been received from FSL
Sagar.
24/ Statements of all the Investigating Officers are well
supported by other witnesses of arrest memo, seizure memo and
disclosure statements. Although some of the seizure witnesses have
turned hostile and not supported the case of the prosecution, but the
Investigating Officers have no enmity with the appellants and no motive
of any false implication in the alleged incident, therefore, on the basis of
statements of aforesaid witnesses, arrest memo, seizure memo and
disclosure memo, it is proved that incriminating articles have been
recovered from the possession of the appellants, but it is noteworthy that
FSL Ex.-/68 and DNA Ex-P/69 have been found and blood clots have
been found on the seized weapon and matched with the blood sample of
the deceased in respect of appellants Takdeer Shah, Iliyas, Shahjad, Rais
@ Banjha Muhasewala, Raghu @ Sarfaraz, Maksood and Yusuf Gulla,
therefore, on the basis of DNA profile report, prosecution has proved its
case against the appellants Takdeer Shah, Iliyas, Shahjad, Rais @ Banjha
Muhasewala, Raghu @ Sarfaraz, Maksood and Yusuf Gulla.
25/ So far as case against appellant Ashiq Gulla (Criminal
Appeal no. 1313/2012) is concerned, it is noteworthy that DNA report
EX-P/69 was not found positive in respect of seizure of iron pipe from
the possession of appellant Ashiq Gulla, therefore, his presence and
participation in the instant case also become doubtful, hence the
prosecution has failed to connect appellant Ashiq Gulla with the instant
offence and in absence of incriminating evidence, appellant Ashiq Gulla
deserves for acquittal.
26/ After scrutinizing entire evidence laid by prosecution, it is
established beyond reasonable doubts that appellants Takdeer Shah,
Iliyas, Shahjad, Rais @ Banjha Muhasewala, Raghu @ Sarfaraz,
Maksood and Yusuf Gulla (except appellant Ashiq Gulla) had conspired
with common object to commit murder of deceased Brijraj and cause
injury to victim Mukesh Singh Bhadoriya and in furtherance of their
common object, they committed murder of the deceased and caused
injuries to victim Mukesh Singh Bhadoriya, while they were discharging
their official duty as police constable at the time of the incident,
therefore, we do not find that the trial Court has committed any illegality
or irregularity in assessing the statements of the prosecution witnesses.
The prosecution has proved its case beyond reasonable doubts, therefore,
conviction and sentence of appellants Takdeer Shah, Iliyas, Shahjad,
Rais @ Banjha Muhasewala, Raghu @ Sarfaraz, Maksood and Yusuf
Gulla under sections 148, 302/149 and 332/149 of IPC is hereby upheld.
Criminal Appeals filed on behalf of the appellants except appellant
Ashiq Gulla is hereby dismissed.
27/ However, Criminal Appeal no. 1313/2012 filed on behalf of
appellant Ashiq Gulla is hereby allowed and he is acquitted from all
the charges under sections 148, 302/149 and 332/149 of IPC. He be
released from jail forthwith, if not required in any other offence,
28/ Disposal of the property shall be as per the order of the trial
Court. Let a copy of this judgment be sent to concerned trial Court for
information and necessary compliance.
A copy of this judgment be kept in the record of all the connected
Criminal Appeals .
CC as per rules.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
amol
