Madhya Pradesh High Court
Singal @ Munna @ Dalchand Vanshkar vs The State Of Madhya Pradesh on 9 February, 2024
Author: Vishal Mishra
Bench: Ravi Malimath, Vishal Mishra
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPU R
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
CRIMINAL APPEAL No. 1764 of 2007
BETWEEN:-
1. SINGAL @ MUNNA @ DALCHAND S/O
SHRI BASOR, AGED ABOUT 45 YEARS, R/O
VILLAGE BARHA BADA, POLICE STATION
CHICHLI TAHSIL GADARWARA,
DISTRICT NARSINGHPUR (M.P.)
2. SACHIN S/O MUNNALAL @ SINGAL
VANSHKAR, AGED ABOUT 20 YEARS, R/O
VILLAGE BARHA BADA, POLICE STATION
CHICHLI TAHSIL GADARWARA,
DISTRICT NARSINGHPUR (M.P.)
3. RAJESH VANSHKAR S/O MITTHULAL
VANSHKAR, AGED ABOUT 20 YEARS, R/O
VILLAGE TINDAWADA, TAHSIL
BANKHEDI DISTT. HOSHANGABAD (M.P.)
.... APPELLANTS
(BY SHRI AKASH KAUSHAL - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
P.S. CHICHLI DISTRICT NARSINGHPUR
(MADHYA PRADESH)
.... RESPONDENT
(BY SHRI A.S. BAGHEL - PUBLIC PROSECUTOR)
Signature Not Verified
Signed by: VINOD
VISHWAKARMA
Signing time: 2/9/2024
2:14:23 PM
2
CRIMINAL APPEAL No. 2208 of 2007
BETWEEN:-
SURAJ PRASAD CHOUDHARY S/O HALKE
PRASAD, AGED ABOUT 29 YEARS, R/O VILLAGE
BARHA BADA, POLICE STATION CHICHLI
TAHSIL GADARWARA, DISTRICT
NARSINGHPUR (M.P.)
.... APPELLANT
(BY MS. MANJU KHATRI - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
P.S. CHICHLI DISTRICT NARSINGHPUR
(MADHYA PRADESH)
.... RESPONDENT
(BY SHRI A.S. BAGHEL - PUBLIC PROSECUTOR)
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Reserved on : 13.09.2023
Pronounced on : 09.02.2024
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These criminal appeals having been heard and reserved for
judgment, coming on for pronouncement this day, Hon'ble Shri Justice
Vishal Mishra passed the following:
JUDGMENT
These appeals are interlinked as preferred against the judgment
of conviction and order of sentence dated 10.08.2007 passed by the
Additional Sessions Judge, Gadarwara District Narsinghpur in Sessions
Trial No.98 of 2006 whereby the appellants were convicted and
sentenced as under :-
Name of Cri. Appeal Convicted Sentenced to
appellant(s) No. under Section
Singal @ 1764 of 2007 302 of the undergo R.I. for Life
Munna @ Indian Penal and to pay fine of
Dalchand Code Rs.500/- and in
default, to suffer R.I.
for 3 months.
Sachin 1764 of 2007 302/34 of the undergo R.I. for Life
Indian Penal and to pay fine of
Rajesh Code Rs.500/- and in
default, to suffer R.I.
for 3 months.
Suraj Prasad 2208 of 2007 302/34 of the undergo R.I. for Life
Indian Penal and to pay fine of
Code Rs.500/- and in
default, to suffer R.I.
for 3 months.
2. The prosecution story, in short, may be summarized as under :
(i) On 02.02.2006, an FIR (Ex.P/41) being Crime No.21
of 2006 was lodged by Beni Choudhary (since deceased)
for the offences punishable under Sections 294, 323 and
324/34 of the IPC to the effect that owing to the previous
animosity, the appellants being armed with lathis and in
furtherance of the common intention assaulted him when
he was sitting in front of the house of Puniya Bai (PW5).
Due to injury sustained by him on his head, Section 307 of
IPC was added. During treatment, as he succumbed to the
injuries, the case was converted into one under Section 302
of the IPC.
(ii) During the course of investigation, merg intimation
was recorded and inquest was conducted. The dead body of
Beni Prasad was sent for post-mortem examination. Dr.
S.K. Nigam (PW5) performed the autopsy in terms of
Ex.P/44 and his opinion was that the cause of death was
due to head injury. Statements of the witnesses were
recorded. The appellants were apprehended and their
memorandum statements were recorded. The weapons of
offence i.e. lathis were recovered from their respective
possession. The spot was inspected. From place of
incident, blood-stained soil and ordinary soil was collected
and sent for chemical examination to the FSL, Sagar along
with clothes of the deceased and the weapon of offence i.e.
lathis.
(iii) After due investigation, a charge-sheet came to be
filed before the Judicial Magistrate First Class, Gadarwara
who committed the case to the Sessions Court for trial.
3. At the trial, the appellants were charged with the offences under
Sections 148, 449, 302 and in the alternative Section 302 read with 149
of the IPC. They pleaded not guilty and claimed to be tried.
4. To bring home the charges, the prosecution examined as many as
24 witnesses including Shakun Bai (PW4) and Puniya Bai (PW5) who
are respectively the wife and maternal aunt of the deceased, as well as
the medical experts and exhibited 45 documents in all. Four witnesses
viz. Mitthulal, Sakun Bai (wife of accused-Singal), Head Constable
Rajesh Kashyap and Tulsabai were produced in defence. On
consideration of the entire evidence on record, the learned trial Judge,
for the reasons recorded in the impugned judgment, held the appellants
guilty of the offences and accordingly convicted and sentenced them in
the manner as indicated hereinabove. Being aggrieved thereby, they
have preferred the present appeals.
5. Legality and propriety of the impugned convictions have been
challenged on the ground that there are material contradictions and
omissions in the statements of the prosecution witnesses. Beni Prasad
(since deceased) is the author of the FIR (Ex.P/41). The entire case is
based upon the fact that the statements of the witnesses disclosed that at
the time when the incident was committed, Beni Prasad became
unconscious and was unable to talk to anyone. He was taken in an auto-
rickshaw to the police station. Therefore, the very basis on which the
prosecution has developed the case itself has become doubtful.
6. It is argued that Beni Prasad (since deceased) himself was a
hardcore criminal. There was a previous enmity between the parties and
an FIR on the earlier occasion was registered. Therefore, it cannot be
ruled out that just to take revenge, the entire story has been prepared
and manufactured. The aforesaid aspect was admitted by Head
Constable Rajesh Kashyap (DW3) that Shakunbai (DW2), the wife of
accused-Singal has lodged a report against Beni Prasad on 03.02.2006
and various other cases are pending against him. Thus, the very
foundation of the prosecution is shaken by the statements of aforesaid
witnesses. The entire prosecution story and the statements reveal that
virtually there are only two eyewitnesses to the incident namely Sukun
Bai (PW4), the wife of the deceased, and Puniya Bai (PW5). They
stated regarding commission of offence. From the statement of Sukun,
it is seen that the six accused persons came to their house where the
deceased was sitting whereas statement of Puniya Bai shows the
presence of five accused persons. She further stated regarding inflicting
of injuries to Sukun Bai when she tried to stop the fight. Thus, the very
presence of the appellants on the place of incident is doubtful. The
incident took place in the evening at about 7 p.m. It was virtually dark,
therefore, it cannot be said that the witnesses have seen the accused
persons. Even Balkishan (PW7) does not appear to be an eyewitness to
the incident. In his examination-in-chief, he admitted this fact that
when he reached the place of occurrence, the accused-appellants had
run away. Thus, the presence of the appellants on the spot appears to be
doubtful.
7. The counsels appearing for the appellants have drawn attention
of this Court to the statement of Dr. R.S. Choudhary (PW12) who
stated that the injured Beni Prasad was in an unconscious state,
therefore, it is beyond doubt that the deceased could be the author of
the FIR. The FIR has been recorded by ASI D.P. Suryavanshi (PW22)
on 02.02.2006 at about 7.10 p.m. which shows the presence of four
accused persons and their involvement in the incident. If the FIR is to
be considered which is the prime document then it shows the presence
of only four persons. The statements of the eyewitnesses PW4 and
PW5 show the presence of 5-6 accused persons. The charges were
framed against six accused persons. They were tried. The trial Court
vide the impugned judgment has acquitted two accused persons namely
Tantu @ Guddu and Madhu and on the same set of evidence, convicted
remaining four accused viz. the appellants. There is no State appeal nor
any appeal filed by the complainant against the acquittal of Tantu @
Guddu and Madhu. Therefore, once a reasonable doubt is created
regarding presence of the accused persons on the spot, the benefit of
doubt should have been granted to them and they should have been
acquitted.
8. It is argued that the learned trial Court committed an error in
overlooking the material contradictions and omissions in the statements
of the witnesses and merely relying upon the fact that the deceased was
the author of the FIR (Ex.P/41) and his version has been duly supported
by the statements of the eyewitnesses namely PW4 and PW5, the trial
Court has convicted the accused-appellants which is bad in law.
9. It is further argued that since the deceased was related to one of
the eyewitnesses and was known to other eyewitness, therefore, they
fall under the category of interested witnesses. As already pointed out
that they were in inimical terms, hence, the conviction based upon the
statements of the interested witnesses cannot be made out. On these
grounds, prayer is made to set aside the impugned order of conviction.
10. In the alternative, the counsels appearing for the appellants have
argued that the appellant-Suraj is in jail and has already undergone
actual custody period of almost 17 years whereas the appellant-Singal
@ Munna @ Dalchand has undergone actual custody period of more
than 6 years. The main allegation of inflicting injury by means of lathi
on the head of deceased Beni Prasad is on appellant No.1-Singal @
Munna. Therefore, by holding them guilty of the offence, their sentence
may be reduced to the period already undergone.
11. Per contra, counsel appearing for the State has vehemently
opposed the contentions. It is submitted that the fact that the deceased
Beni Prasad was the author of the FIR and he was conscious at the time
of giving a statement to the police authorities is evident from the
statements of the eyewitnesses, wherein they have clarified that he was
conscious upto the time when he has made a complaint to the police
authorities. Subsequently, when he was taken to the hospital he became
unconscious. He has drawn attention of this Court to the FIR (Ex.P/41)
recorded by ASI D.P. Suryavanshi (PW22) which reflects names of four
accused viz. Singal, Rajesh, Sachin and Suraj. From perusal of the FIR,
it is clearly seen that the incident in question has taken place out of
previous enmity between the parties. Therefore, the factum of motive is
established by the prosecution. Prior to 6-7 months of the incident,
there was a scuffle between Beni Prasad (the deceased) and Rajesh
Basod owing to which he was not in good terms with the deceased. In
the present case, the appellants came to the house, abused Beni Prasad
and assaulted him with lathis. The injuries are medically corroborated.
The doctor who has conducted MLC i.e. Dr. R.S. Choudhary (PW12)
found injuries on the person of Beni Prasad who was referred to for X-
ray examination. The X-ray was conducted by Dr. K. Uikey (PW17)
and the report in terms of Ex.P/29 reflects that there was fracture on the
skull of Beni Prasad. Even Sukun Bai (PW4) who was the eyewitness
of the incident in her cross-examination, denied the fact that after
inflicting injuries, Beni Prasad became unconscious. She denied the
fact that he was unconscious while he was taken to the police station.
She stated that after making the complaint, he vomited in the police
station (blood-vomiting) and thereafter he became unconscious.
Thereafter, he was taken to the hospital. Thus, it is clear that the
deceased Beni Prasad was conscious and was able to make complaint.
12. Similar statement was given by Puniya Bai (PW5) who clarified
the position that when the incident took place, it was not completely
dark. She was able to see the persons who have inflicted injuries. She
further stated that Sukun Bai has tried to stop the fight and she was also
inflicted injuries. Her injuries were medically corroborated in terms of
Ex.P/23. Sukun Bai being the wife of the deceased and being the
eyewitness to the incident has fully supported the prosecution story.
Even the statement of Balkishan (PW7) to a certain extent supported
the prosecution story wherein he has narrated that as soon as he reached
the place of incident, he saw the accused persons running away from
the spot. Therefore, the aforesaid proposition could not be disputed and
the prosecution has established a full proof case against the appellants.
He has prayed for dismissal of the appeals. No other arguments have
been raised.
13. Heard learned counsel for parties and perused the records.
14. The entire case of the prosecution is based upon the statements of
eyewitnesses to the incident namely Sukun Bai (PW4) and Puniya Bai
(PW5) and the testimony of Balkishan (PW7) coupled with the FIR
(Ex.P/41) which was lodged by Beni Prasad (since deceased). The
incident has taken place on 02.02.2006 at about 7 p.m. There was
sufficient light available as is reflected from the statements of the
aforesaid witnesses. The accused-appellants were having previous
enmity with deceased Beni Prasad owing to scuffle which took place
around 6-7 months ago. The appellants in a preplanned manner armed
with lathis came to his house. The deceased was sitting in the courtyard
of the house where his wife Sukun Bai (PW4) and his maternal aunt
Puniya Bai (PW5) were sitting. Four of the accused persons entered
into the house, inflicted injuries by means of lathis and when Shakun
Bai tried to intervene and stop the fight, she was also inflicted injuries.
The injured Beni Prasad was immediately taken to the police station.
He was badly injured but was in a position to narrate the incident to the
police authorities. Therefore, the FIR (Ex.P/41) was immediately
lodged at 7.10 p.m. on 02.02.2006. It was a prompt FIR registered by
ASI D.P. Suryavanshi (PW22). If the statement of PW22 is seen, it is
clearly reflected that Beni Prasad was in a conscious state when he
came to the police station. He has clarified the position in his cross-
examination also and categorically stated that he was having an injury
on his head, blood was oozing out but he was not unconscious. He was
in a position to give the statement. On the basis of the statement given
by Beni Prasad (since deceased), the FIR was got registered initially for
offence under Sections 294, 323, 324/34 of the IPC at Crime No.21/06
at Police Station Chichli District Narsinghpur. Subsequently, he
succumbed to the injuries during treatment in the hospital on
04.02.2006 at 7 p.m. After his death, merg intimation was reported in
terms of Ex.P/42. The aforesaid statement given by PW22 is fully
supported by the statements of Sukun Bai (PW4) and Puniya Bai
(PW5) who had accompanied injured Beni Prasad to the police station
and thereafter to the hospital but during treatment he died.
15. Under these circumstances, it can safely be inferred that the
deceased Beni Prasad was alive and was in a conscious state to give
statement when he reached the police station on 02.02.2006 at about
7.00 p.m. It is a settled position of law that statement or the FIR being
lodged by the deceased can be treated as a dying declaration in the
matter. Under exceptional circumstances, it does not require a
certificate to be given by the doctor. Even the statement of a police
officer recording an FIR of which the deceased is an author can safely
be narrated as a dying declaration.
16. The Hon'ble Supreme court in the case of Dharam Pal vs State of
U.P. reported in (2008) 17 SCC 337 has held as under :
"17. That apart, the report dictated by the deceased fully
satisfied all the ingredients for being made admissible as a
dying declaration. To ascertain this aspect, we may refer to
some of the general propositions relating to a dying
declaration. Section 32(1) of the Evidence Act deals with dying
declaration and lays down that when a statement is made by a
person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death,
such a statement is relevant in every case or proceeding in
which the cause of the person's death comes into question.
Further, such statements are relevant whether the person who
made them was or was not at the time when they were made
under expectation of death and whatever may be the nature of
the proceedings in which the cause of his death comes into
question.
18. The principle on which a dying declaration is admissible in
evidence is indicated in the maxim "nemo moriturus
praesumitur mentire", which means that a man will not meet
his maker with a lie in his mouth. Thus, it is clear that a dying
declaration may be relating to:
(a) as to the cause of death of the deceased;
(b) as to "any of the circumstances of the transaction" which
resulted in the death of the deceased.
19. It is also clear that it is not necessary that the declarant
should be under expectation of death at the time of making the
statement.
20. If we look at the report dictated by the deceased in the light
of the aforesaid propositions, it emerges that the names of the
accused and the important features of the case have been
clearly mentioned in the report. It contains a narrative by the
deceased as to the cause of his death, which finds complete
corroboration from the testimony of eyewitnesses and the
medical evidence on record. There is nothing on record to show
that the deceased was not in a position to speak at the time
when he dictated the report of occurrence. On the other hand,
the materials and the other evidence on record would
conclusively show, as rightly held by the High Court, that the
deceased was in a position to speak when he dictated the report
of occurrence. Therefore, in our view, the High Court was fully
justified in holding that the deceased was in a fit state of mind
at the time of making the statement."
17. From the aforesaid proposition of law and looking to the facts
and circumstances of the case coupled with the statements of the
material eyewitnesses to the incident namely Sukun Bai (PW4) and
Puniya Bai (PW5) as well as the testimony of ASI D.P. Suryavanshi
(PW22), it can safely be inferred that the author of the FIR was Beni
Prasad and he was in a conscious state to record the complaint. Thus,
the learned trial Court has not committed any error in holding that Beni
Prasad (since deceased) was the author of the FIR.
18. Adverting to the medical evidence, it may be seen that the
injuries sustained by Beni Prasad are medically corroborated. Dr. R.S.
Choudhary (PW12) who initially conducted the MLC of Beni Prasad
has found stitched wound on the centre of scalp. Dr. K. Uikey (PW17)
has found following injuries on the person of Beni Prasad:
(i) Lacerated wound on frontal region size 5 x 2½ x bone
deep, bleeding present.
(ii) Abrasion on right forearm size 2 x 1½ cm.
(iii) Abrasion over left arm size 2 x 2 cm.
(iv) Contusion over left side of chest size 5 x 1 ½ cm.
(v) Contusion over upper part of left leg size 2 x 2 cm.
19. Dr. K. Uikey (PW/17) opined that injuries sustained by Beni
Prasad were caused by hard and blunt object. Except injury no.(i), all
other injuries were simple in nature. Dr. R.P. Faujdar (PW14) has
conducted the X-ray of Beni Prasad and found fracture over the right
parietal bone. The corresponding report is exhibited as Ex.P/29. The
autopsy was conducted by Dr. A.K. Nigam PW/24 and the cause of
death was opined as cardio-respiratory arrest due to head injury. The
post-mortem report is Ex.P/44.
20. Moreover, the weapons used in the commission of the offence i.e.
lathies along with blood-stained soil and clothes of the deceased were
sent for FSL Sagar for chemical examination and the report is Ex.P/45
wherein bloodstains were found on articles 'A', 'C1', 'C2' and 'C3' but
no bloodstains were found on articles 'B', 'D', 'E', 'F', 'G', 'H' and
'I'. The prosecution story reveals that the appellants were armed with
hard and blunt object i.e. lathis and there is recovery of those weapons
from their possession. Recovery of the weapons i.e. lathis is fully
established by the prosecution which is clear from the statements of
prosecution witnesses namely Darshan (PW10) and Jugraj (PW11).
Thus, on the basis of the material available on record, it can safely be
inferred that the appellants were the persons who had inflicted injuries
to Beni Prasad (since deceased). There was a motive available with
them that they were having previous enmity which is reflected from
registration of previous FIR.
21. Insofar as statements of interested witnesses is concerned, the
law is well settled that the testimony of the interested witnesses could
not be discarded, on the contrary, the court has to minutely scrutinize
the statement of the interested witness to arrive at a conclusion. In the
present case, the interested witnesses being Sukun Bai (PW4) who is
the wife of the deceased and Puniya Bai (PW5) being the maternal aunt
of the deceased, categorically stated that the appellants being armed
with lathis assaulted Beni Prasad as a result whereof he succumbed to
the injuries. The same has duly been corroborated by the statement of
the deceased himself who happens to be the author of the FIR (Ex.P/41)
coupled with the fact that the injuries are medically corroborated.
22. In the case of Shamim vs State (NCT of Delhi) reported in (2018)
10 SCC 509, the Hon'ble Supreme Court has held that in a criminal
trial, normally the evidence of the wife, husband, son or daughter of the
deceased, is given great weightage on the principle that there is no
reason for them not to speak the truth and shield the real culprit. In
Rizan vs State of Chhattisgarh reported in (2003) 2 SCC 661 has held
as under :
"6. We shall first deal with the contention regarding
interestedness of the witnesses for furthering the prosecution
version. Relationship is not a factor to affect credibility of a
witness. It is more often than not that a relation would not
conceal the actual culprit and make allegations against an
innocent person. Foundation has to be laid if plea of false
implication is made. In such cases, the court has to adopt a
careful approach and analyse evidence to find out whether it is
cogent and credible."
23. In the recent case of M. Nageswara Reddy vs State of A.P.
reported in (2022) 5 SCC 791, the Hon'ble Supreme Court has held as
under :
"16. Having gone through the deposition of the relevant
witnesses -- eyewitnesses/injured eyewitnesses, we are of the
opinion that there are no major/material contradictions in the
deposition of the eyewitnesses and injured eyewitnesses. All are
consistent insofar as Accused 1 to 3 are concerned. As
observed hereinabove, PW 6 has identified Accused 1 to 3. The
High Court has observed that PW 1, PW 3 & PW 5 were
planted witnesses merely on the ground that they were all
interested witnesses being relatives of the deceased. Merely
because the witnesses were the relatives of the deceased, their
evidence cannot be discarded solely on the aforesaid ground.
Therefore, in the facts and circumstances of the case, the High
Court has materially erred in discarding the
deposition/evidence of PW 1, PW 3, PW 5 & PW 6 and even
PW 7."
24. This Court has already arrived at a conclusion that injured Beni
Prasad is the author of the FIR and the statement by an injured person
recorded as FIR can be treated as a dying declaration. The aforesaid
part could not be disputed by the counsel appearing for the appellants.
The nature of injuries found on the body of the deceased reflected
complicity of assailants equipped with hard and blunt objects. In these
circumstances, the prosecution evidence comprising of a reliable ocular
testimony, a consistent medical evidence and recovery of corresponding
weapons was rightly considered sufficient to prove beyond a reasonable
doubt that the appellants were involved in a joint attack on Beni Prasad
that ultimately proved fatal to him.
25. Under these circumstances, the learned trial Court has not
committed any error in placing reliance upon the statements of the
witnesses namely Sakun Bai (PW4), Puniya Bai (PW5), Balkishan
(PW7) and ASI D.P. Suryavansi (PW22) and excerpts of FIR (Ex.P/41)
which was recorded by the deceased himself. The counsels appearing
for the appellants could not demolish the prosecution case. The learned
trial Court in paragraphs 16 to 20 has discussed the aforesaid
propositions in detail. In the light of the overwhelming evidence on
record, no illegality has been committed by the learned trial Court in
recording the findings of guilt.
26. Having regard to the oral as well as the documentary evidence
available on record and the manner in which the offence has been
committed by the appellants, no case for interference insofar as
custodial sentence is concerned is made out.
27. For the reasons aforestated, there is no merit in these appeals,
which are accordingly dismissed. The impugned judgment of
conviction and order of sentence dated 10.08.2007 passed by the
Additional Sessions Judge, Gadarwara District Narsinghpur in S.T.
No.98 of 2006 are hereby affirmed.
28. The appellant Suraj Prasad is in jail whereas the appellants
namely Singal @ Munna @ Dalchand, Sachin and Rajesh Vanshkar are
on bail. Their bail bonds are cancelled. They are directed to surrender
to their bail bonds to serve out the remaining part of their sentences.
29. A copy of this judgment along with the record of the trial Court
be sent immediately to the court concerned for information and
necessary action. Let a copy of this judgment be also sent to the
concerned jail authorities for compliance and necessary action.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
VV
