Madhya Pradesh High Court
Bilam Singh vs The State Of Madhya Pradesh on 21 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
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
CRIMINAL APPEAL No 352 OF 2013
BETWEEN:-
1. BAHDURSINGH S/O NANSINGH BHIL
AGE - 40 YEARS, OCCUPATION LABOUR,
R/O VILLAGE GHUTIYADEV, P.S. BAG,
DISTRICT DHAR M.P.
2. PRATAPSINGH S/O DEEPSINGH BHIL
AGE- 40 YEARS, OCCUPATION LABOUR
R/O VILLAGE GHUTIYADEV, P.S. BAG,
DISTRICT DHAR
.....APPELLANTS
(BY MS SHRADHA DIXITI- ADVOCATE)
AND
STATE OF MADHYA PRADESH
THROUGH P.S. BAG, DISTRICT DHAR
(MADHYA PRADESH)
.....RESPONDENT
(BY MS. VARSHA THAKUR - GOVERNMENT ADVOCATE)
CRIMINAL APPEAL No 496 OF 2013
BETWEEN:-
RADUSINGH S/O HIMANSINGH @
HEMANTSINGH, AGE - 35 YEARS,
OCCUPATION TEACHER, R/O VILLAGE
GHUTIYADEV, P.S. BAG, DISTRICT
DHAR (MP)
.....APPELLANT
(BY SHRI VIVEK SINGH - ADVOCATE)
2
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION BAG DISTRICT DHAR
(MADHYA PRADESH)
.....RESPONDENT
(BY MS. VARSHA THAKUR - GOVERNMENT ADVOCATE)
CRIMINAL APPEAL No 485 OF 2013
BETWEEN:-
BILAM SINGH S/O KERU BHIL, AGE- 45
YEARS, OCCUPATION AGRICULTURE, R/O
GHUTIYADEV, P.S. BAG, DISTRICT DHAR
(MP)
.....APPELLANT
(BY SHRI SANTOSH KUMAR MENA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION BAG DISTRICT
DHAR (MADHYA PRADESH)
.....RESPONDENT
(BY MS. VARSHA THAKUR - GOVERNMENT ADVOCATE)
CRIMINAL APPEAL No 10398 OF 2022
BETWEEN:-
JULAB SINGH S/O VARJAN, AGE- 48 YEARS,
OCCUPATION NOTHING, R/O GHUTIYADEV,
TEHSIL KUKSHI, DISTRICT DHAR (MP)
.....APPELLANT
(BY MS. SHARMILA SHARMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION BAG DISTRICT
3
DHAR (MADHYA PRADESH)
.....RESPONDENT
(BY MS. VARSHA THAKUR - GOVERNMENT ADVOCATE)
Reserved on : 08/02/2024
Pronounced on : 21/02/2024
These appeals having been heard and reserved for orders, coming
on for pronouncement this day, JUSTICE ANIL VERMA passed the
following:
JUDGMENT
This judgment shall govern disposal of criminal appeal No. 352 of
2013, criminal appeal No. 496 of 2013, criminal appeal No. 485 of 2013
and criminal appeal No. 10398 of 2022 as all these appeals arise out of
the common judgment of conviction dated 7.2.2013 passed by Second
Additional Sessions Judge (Fast Track) Kukshi District Dhar in ST No.
323/2012, whereby the appellants have been convicted and sentenced as
under:-
Name of the Conviction Sentence Fine Imprisonment
appellant/ in lieu of
accused payment of
fine
Bilam Singh 302 IPC Life Rs. 2,000/- 1 year R.I.
imprisonment
302/149 IPC Life Rs. 2,000/- 1 year R.I.
imprisonment
323/149 IPC 1 year's R.I. Rs. 1,000/- 1 month R.I.
148 IPC 3 years R.I. Rs. 1,000/- 1 month R.I.
Bahadur 302/149 Life Rs. 2,000/- 1 year R.I.
Singh imprisonment
302/149 Life Rs. 2,000/- 1 year R.I.
imprisonment
323/149 1 year's R.I. Rs. 1,000/- 1 month R.I.
148 3 years R.I. Rs. 1,000/- 1 month R.I.
Pratap 302/149 Life Rs. 2,000/- 1 year R.I.
imprisonment
302/149 Life Rs. 2,000/- 1 year R.I.
imprisonment
323 1 year's R.I. Rs. 1,000/- 1 month R.I.
148 3 years R.I. Rs. 1,000/- 1 month R.I.
Radu Singh 302/149 Life Rs. 2,000/- 1 year R.I.
imprisonment
302/149 Life Rs. 2,000/- 1 year R.I.
imprisonment
323/149 1 year's R.I. Rs. 1,000/- 1 month R.I.
148 3 years R.I. Rs. 1,000/- 1 month R.I.
Julab Singh 302 Life Rs. 2,000/- 1 year R.I.
imprisonment
302/149 Life Rs. 2,000/- 1 year R.I.
imprisonment
323/149 1 year's R.I. Rs. 1,000/- 1 month R.I.
148 3 years R.I. Rs. 1,000/- 1 month R.I.
2. For the sake of convenience, the facts are taken from criminal
appeal No. 352/2013.
3. The facts of the case in brief are that complainant Jagan (PW-2)
lodged an FIR at police station Bag District Dhar on 24.3.2012 at 6.45
pm by stating that on 24.3.2012 at about 6.00 pm deceased Sobhan came
to village Bagh alongwith deceased Navalsingh, injured Harsingh and
complainant Jagansingh. While they were going back to village
Ghutiadev on two motorcycles, one motorcycle was driven by Sobhan
on which Naval Singh and Har Singh were sitting and another
motorcycle was driven by complainant Jagan Singh, and reached nearby
Hanuman Tekari Banda, then accused Bilam Singh, Pratap Singh and
Bahadur Singh came there in a pickup vehicle and appellant Radu and
Julab Singh came on motorcycle. They stopped the motorcycles of
Sobhan and Naval Singh. Appellants Bahadur, Pratap and Bilam caught
hold Naval Singh. Accused inflicted a blow of Falia on the head of
Naval Singh, due to which head of Naval Singh was cut from the head
and fell down on the ground. Appellants Julab Singh and Radu chased
Sobhan, due to which he fell down on the spot and then Julab Singh
gave a blow of Falia on the head of Sobhan due to which he died on the
spot. Appellant Pratap pelted stone upon victim Har Singh. Then Har
Singh fled away towards the forest. Accused persons committed murder
of both deceased due to the previous enmity regarding earlier Panchayat
election.
4 The prosecution story in further is that Inspector Suresh Gangrani
(PW-11) lodged Akal Mrityu Suchana and Marg and reached on the spot
and prepared spot map and Naksha Panchayatnama of both the deceased.
Dr. H.S. Muvel (PW-12) conducted postmortem of deceased Sobhan
Singh and Naval Singh and also conducted the MLC of victim Har
Singh. He opined that the death of both deceased persons was homicidal
in nature. Investigating officer Suresh Gangrani also seized blood
stained and simple soil from the spot and also recovered blood stained
cloths of deceased. During investigation all the accused persons were
arrested and on the basis of their discovery statement, three Falias were
recovered from possession of appellants Bilam Singh and Pratap Singh
and motorcycle was recovered from possession of appellant Radu. All
seized articles were sent to FSL for its chemical examination.
5. After due investigation charge sheet was filed before JMFC
Kukshi who committed the case to the court of Sessions, Dhar which
was later on transferred to the court of Additional Sessions Judge (Fast
Track) Kukshi for trial. The trial court framed charges against the
appellants. The appellants/accused persons abjured their guilt and
pleaded that they have been falsely implicated in this offence. The
prosecution examined as many as 12 witnesses and defence has
examined single witness.
6. The trial Court after appreciating the evidence available on record,
convicted and sentenced the appellants as mentioned herein above.
Being aggrieved by the judgment of conviction and order of sentence,
the appellants/accused have preferred present appeals before this court.
7. Learned counsel for the appellants contended that the judgment of
the trial Court is contrary to law and facts on record. It is neither legal
nor proper nor correct. The trial court erred while relying upon
statements of prosecution witnesses. The prosecution failed to prove its
case beyond reasonable doubt. The incident was occurred all of a
sudden, therefore, there was no common object. Conviction of the
appellants is bad in law. Hence, he prays that the appeals be allowed and
the impugned judgment of conviction and sentence passed by the trial
Court be set aside and appellants be acquitted from the charges.
8. Per contra, learned counsel for the respondent / State opposes the
prayer by supporting the impugned judgment passed by the trial Court
and prays for dismissal of these appeals by submitting that the learned
trial court on proper appreciation of evidence has rightly convicted the
appellants and same does not call for any interference. Hence all these
appeals deserve to be dismissed.
9. We have heard learned counsel for both the parties at length and
perused the entire record of the trial Court with due care.
10. In order to appreciate the merits of rival contentions in right
perspective, it is necessary to first advert to the medical evidence
available on record.
11. In the instant case, first of all it has to be considered that, as to
whether death of deceased Naval Singh and Sobhan Singh was
homicidal in nature or not? In this connection the statement of Dr. H.S.
Muvel (PW-12) is quite important, who has conducted the autopsy of
both the deceased persons. Dr. H.S. Muvel (PW-12) during the
conduction of autopsy of deceased Sobhan Singh found 7 incised
injuries all over the body including the vital parts i.e. left year, neck,
head, shoulder and chin and he opined that the aforesaid injuries were
caused by hard and sharp object. During the internal examination, he
found that the occipital bone was fractured, brain was also ruptured, 3 rd
vertebra bone was cut, vertebra spinal card and esophagus were also
found cut down and mode of death was asphyxia due to the cut injuries
found on the neck on account of the cardio respiratory failure.
Postmortem report of deceased Sobhan Singh is Ex.P/30. Dr. H.S. Muvel
(PW-12) also conducted autopsy of the deceased Naval Singh and
opined that the death was caused due to the cardio respiratory failure by
the injuries sustained over the neck. He found four incised injuries on
the head, palm of the left hand and on the right shoulder. His
postmortem report is Ex.P/32.
12. Dr. H.S. Muvel (PW-12) also conducted the MLC of the victim
Harsingh and found lacerated wound on the left side of the skull, which
was caused by hard and blunt object within 12 to 18 hours and also
advised for x-ray.
13. Dr. H.S. Muvel (PW-12) opined that the injuries found on the dead
bodies of both the deceased persons were sufficient in ordinary course of
nature to cause death. Nothing is available on record which shows that
the aforesaid injuries sustained by both the deceased persons were
caused by themselves or sustained in any other incident case. Thus, there
is no reason to disbelieve the opinion given by Dr. H.S. Muvel (PW-12)
that death of both the deceased were homicidal in nature.
14. Besides the medical evidence, victim Harsingh (PW-1) is an
injured person and also an eyewitness. He deposed before the trial Court
that at the time of incident at about 5.45 p.m. he along with his uncle
Naval Singh and Sobhan Singh were returning to their village, when
they reached nearby Banada Hanuman Tekri, at that time a pick-up was
standing before them and accused Bilam, Bahadur and Pratap armed
with Falia came out from the pick-up and they surrounded them and
started beating them by Falia. First of all Bilam inflicted injury by Falia
on the neck of Naval Singh, due to which his neck cut down. Thereafter
Bahadur and Pratap caused injury to Naval Singh by means of Falia, due
to which he sustained injury over the head. Sobhan Singh was also
beaten by Julabsingh by Falia over his neck. Naval Singh and Sobhan
Singh fell down on the spot and succumbed there. Pratap also hit stone
to him, due to which he sustained injury over his head. Due to the fear of
the appellants, he ran towards the forest and hidden himself in the forest.
On the next day he went to the Police Station - Bag. The incident
occurred due to the previous enmity regarding the Panchayat Election.
Jagan also witnessed the incident.
15. Jagan (PW-2) also corroborated the statement of Harsingh (PW-1)
and deposed in the same manner and also stated that Sobhan Singh was
caught hold by Radu and Bilam, Bahadur and Pratap gave blow by Falia
on the neck of Naval Singh. Julab Singh gave 6-7 blows by Falia to
Sobhan Singh. Then accused persons fled away from the spot in the
pick-up vehicle. Then he went to Police Station Bag and lodged the FIR
(Ex.P/1).
16. Learned counsel for the appellants submits that there are material
contradictions and omissions in the statements of Harsingh (PW-1) and
Jagan (PW-2) in their police statement under Section 161 of Cr.P.C. and
the court statement, therefore, their statements cannot be relied upon due
to the material contradictions and omissions. Counsel for the appellants
has placed reliance upon the judgment of the Hon'ble Apex Court in the
case of State of Rajasthan Vs. Rajendra Singh reported in 1998(II)
MPWN Note 153. In that case it was held that it is a trite law that when
there is material contradictions, omissions and material improvement
contradicting etc. from police statement, such witnesses are not reliable.
17. We have gone through the contents of FIR (Ex.P/1) as well as the
police statements (Ex.D/1 & D/2) respectively. In the FIR it is not
specifically mentioned that only Bilam was having a Falia and Pratap
and Bahadur Singh were not having any arms in their hands. It is only
said that all three of them caught hold Naval Singh. In the statement
under Section 161 of Cr.P.C. (Ex.D/1), Harsingh (PW-1) specifically
stated that Bilam, Bahadur and Pratap came there in a pick-up vehicle
having Falia in their hands. Julab Singh was also having Falia in his
hand, who came on a motorcycle. Further, it is stated that Bilam,
Bahadur and Pratap caught hold Naval Singh and then they all started
giving blows on him by Faia. Similar statement was made by Jagan
(PW-2) in Ex.D-2. Their statements are well supported by medical
evidence of Dr. H.S. Muvel (PW-12) who performed the autopsy of
deceased Sobhan Singh and Naval Singh. This shows that more than one
blow was given to them. Therefore, in view of the above, statements of
both the eyewitnesses cannot be disbelieved.
18. Learned counsel for the appellants submits that there is material
contradictions and omissions in the statement of Jagan (PW-2) and FIR
(Ex.P/1). However some discrepancy has been found in the FIR and the
statement of Jagan (PW-2), but his statement is well supported by the
medical evidence. The neck of Naval Singh was separated from his
body. The coordinate Bench in the case of Miss X (victim) vs. Santosh
Sharma reported in ILR 2020 MP 461 has held that the FIR is
information of incident at the first instance and, therefore, FIR need not
contain minute details. The same principle has been laid down by this
Court in the case of State of M.P. Vs. Chhakkilal reported in ILR 2019
MP 507 (SC), in which it has been mentioned that the FIR is not an
encyclopedia which is expected to contain all minute details of
prosecution case. It may be sufficient if broad effects of the case is stated
therein. In the instant case, FIR is lodged on the same day, therefore,
there is no inordinate delay in lodging the FIR.
19. All the citations are fully applicable in the instant case, therefore,
FIR (Ex.P/1) and statement of Jagan (PW-2) appears to be trustworthy.
20. Learned counsel for the appellants submits that Harsingh (PW-1)
and Jagan (PW-2) are the family members of the deceased persons,
therefore, they are interested witnesses and their evidence cannot be
relied upon. It is true that Harsingh (PW-1) is the nephew of the
deceased Naval Singh and Sobhan Singh and Jagan (PW-2) is younger
brother of the deceased Naval Singh, but their presence on the spot at the
relevant point of time is quite natural. Their version also appears to be
trustworthy and reliable and well corroborated by the statement of other
witnesses. FIR (Ex.P/1) was promptly lodged and duly proved by the
Inspector Suresh Gangrani (PW-11). Hence, we are not inclined that
witnesses Harsingh (PW-1) and Jagan (PW-2) are the interested
witnesses.
21. The Hon'ble Apex Court in the case of Jodhan Vs. State of
Madhya Pradesh (2015) 11 SCC 52 has held as under with regard to
appreciation of evidence of interested and inimical witness thus:
"40. A witness is normally to be considered
independent unless he or she springs from sources
which are likely to be tainted and that usually
means unless the witness has cause, such as
enmity against the accused, to wish to implicate
him falsely. Ordinarily a close (relative) would be
the last to screen the real culprit and falsely
implicate an innocent person. It is true, when
feelings run high and there is personal cause for
enmity, that there is a tendency to drag in an
innocent person against whom a witness has a
grudge along with the guilty, but foundation must
be laid for such a criticism and the mere fact of
relationship far from being a foundation is often a
sure guarantee of truth."
22. So far as the motive of the incident is concerned, Harsingh (PW-1)
and Jagan (PW-2) both of them categorically stated in their statements
that due to the enmity of Panchayat Election, appellants have murdered
both the deceased. Same fact was also corroborated by Thakur Singh
(PW-4) and Indersingh (PW-3). Therefore, the prosecution has
successfully proved the motive of the crime also.
23. Investigating officer Inspector Mr. Suresh Gangrani (PW-11)
categorically stated that he has arrested the accused Bilam Singh,
Bahadur Singh and Pratap on 30.3.2012 through arrest memo Ex.P/8 to
P/10 and he has also arrested the co-accused Radu Singh and Julab
Singh through arrest memo Ex.P/23 & P/5. In custody accused Bilam
Singh has given discovery statement (Ex.P/11). Pratap Singh, Bahadur
Singh, Radu and Julab Singh also gave discovery statement Ex.P/12,
P/13, P/24 & P/6 and thereafter he recovered a Falia and pick-up Van at
the instance of Bilam Singh through seizure memo (Ex.P/14). He also
recovered blood stained Falia from the possession of Bahadur Singh,
Pratap Singh and Julab Singh through seizure memo Ex.P/15, P/16 & P/
7. He has sent all the seized articles to FSL for their chemical
examination. Although independent witness of seizure, arrest and
discovery statement Pyarsingh (PW-5), Jitendra (PW-6), Karam Singh
(PW-8) and Bhanwar Singh (PW-9) have turned hostile and not
supported the case of the prosecution, but there is no reason to disbelieve
the statement of Inspector Suresh Gangrani (PW-11), which is well
supported by the documentary evidence. Therefore, on the basis of t he
statement of Inspector Suresh Gangrani (PW-11), the aforesaid seizure
of the weapons has been proved by the prosecution. So far as the
unlawful assembly is concerned, the co-ordinate bench of this Court in
the case of Rambabu Vs. State of M.P. ILR 2022 M.P. 1234 (DB) held
that "it is not necessary that each and every member of unlawful
assembly must play some overt act in commission of offence. In order to
find out whatever assembly was unlawful or not, the role played by an
individual coupled with language used, arms carried by members and
their behavior prior to, during and after the incident along with
surrounding circumstances, plays an important role. An assembly which
was not unlawful at the very inception, may become unlawful at the later
stage".
24. We need not expand on the either side decisions, because the basic
principles remains that the important ingredient of unlawful assembly or
the number of persons forming it i.e. five and their common object.
Common object of the persons composing that the assembly could be
formed on the spur of moment and does not require prior deliberations.
The course of conduct adopted by the member of such assembly, their
behaviour before, during, and after the incident and the arms carried by
them, they are a few basic and relevant factors to determine the common
object. In the instant case, the number of accused persons are five and
they reached on the spot armed with deadly weapons. They have
previous enmity with the deceased persons due to the Panchayat
Election. They have attacked the deceased persons with deadly weapons.
This clearly brings down the motive of such attack as also the object of
the unlawful assembly. Moreover, the blows hurled on the members of
the complainant party had been wide sufficient force and chosen aims,
due to which two persons were died. The background aspects as also the
conduct of the accused persons at and during the time of incident leaves
nothing to doubt that each of the member of the assembly remains liable
for the offence committed by himself as well as every member of the
assembly.
25. From the aforesaid cogent evidence proved by the prosecution,
which is available on record, we are quite satisfied that the appellants
were members of the unlawful assembly within the meaning of Section
141 of IPC, sharing common object to cause murder of deceased Tony,
Minchu and Ishwar and they were armed with deadly weapons used for
commission of offence punishable under Section 302 of IPC. Therefore,
conviction of all the accused persons under Section 302 read with
Section 149 of IPC being more than five in number is, therefore, proper
and no case is made out for calling any interference by this Court in this
appeal. The offence under Sections 25 and 27 of Arms Act is also
proved.
26. In the result, we find no merit and substance in these appeals and
as such it deserves to be dismissed.
27. The judgment of conviction and sentence passed by the trial Court
is hereby affirmed. Appeals fail and are hereby dismissed.
28. Office is directed to send a copy of this judgment along with
record of the trial court forthwith to the concerned trial court.
29. Signed order be kept in the file of CRA No.352/2013 and a copy
thereof be placed in the file of connected CRA Nos.496/13, 485/13 &
10398/22.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
Date: 2024.02.22 10:02:13 +05'30'
