Madhya Pradesh High Court
Gyanisingh Gurjar vs The State Of Madhya Pradesh on 5 March, 2024
Author: Prakash Chandra Gupta
Bench: Prakash Chandra Gupta
1
CRA No.7450/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
CRIMINAL APPEAL No.7450 of 2023
BETWEEN:-
GYANISINGH GURJAR S/O BHAGWAN SINGH GURJAR,
AGED 25 YEARS, OCCUPATION: LABOUR R/O GRAM
MUBARIKPUR CHIRATIYA PS AWANTIPUR DIST.
SHAJAPUR (MADHYA PRADESH)
.....APPELLANT
(BY MS. SHARMILA SHARMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH PS
AWANTIPUR BADODIYA (MADHYA PRADESH)
.....RESPONDENT/STATE
(BY SHRI D.G. MISHRA ALONGWITH SHRI VIRAJ GODHA - PL)
Reserved on : 29.02.2024
Pronounced on : 05.03.2024
---------------------------------------------------------------------------------------
This appeal having been heard and reserved for judgement,
coming on for pronouncement this day, this Court pronounced the
following:
JUDGEMENT
The appellant/accused has filed this appeal u/S 374 of Cr.P.C. being
aggrieved by judgment of conviction and order of sentence dated
27.02.2023 passed by 4th ASJ Shujalpur, Distt. - Shajapur in S.T.
No.148/2020, whereby the learned trial Court has convicted the appellant
for the offence punishable u/S 326 of IPC and sentenced him to undergo
Rigorous Imprisonment for 05 years and fine of Rs.5,000/-, with default
stipulation.
2. Prosecution story, in brief is that on 24.09.2019, at 03:00 PM,
complainant Kamla Bai (PW-2) alongwith her son Sonu (PW-6) was going
to her agricultural land. When they reached at the agricultural land of Laad
Singh Keer, the present appellant Gyan Singh Gurjar carrying Lathi
bearing iron ring and co-accused Laad Singh carrying Pharsi came there
and started abusing them due to old animosity. The accused persons
assaulted Sonu (PW-6) by their respective weapon on his head and other
parts of body with intent to kill him. The injured sustained grievous injury.
Hearing cries of Kamla Bai (PW-2) and Sonu (PW-6) from the neighboring
farmland, Kanta Bai (PW-3) and Sharda @ Shanta Bai (PW-1) had come to
intervene in the matter and tried to rescue the injured. Meanwhile, Indar
came there and after seeing him, the accused persons had fled away from
the spot. Injured Sonu (PW-6) was taken to hospital and the matter was
reported by Kamla Bai (PW-2). An FIR (Ex.P-2) was lodged on the same
day at O/P Polaykala. On the basis of FIR (Ex.P-2), on the same day, an
FIR (Ex.P-13), crime No.203/2019 was registered at P/S Avantipur,
Badodia, Distt. - Shajapur against the appellant and co-accused Laad
Singh.
3. During investigation, medical examination of the injured was
conducted at CHC Polaykala, by Dr. Prashant Madiya (PW-8). He was
admitted in Vinayak Fracture Hospital, Sarangpur for 3 days, where Dr.
Sunil Sharma (PW-9) had done his treatment. Thereafter, he was also
admitted, Aurobindo Hospital, Indore from 03.10.2019 - 25.10.2019,
where Dr. Rajiv Shukla (PW-15) had treated him. Medical documents were
collected. Spot map was prepared. After completion of other formalities,
charge-sheet for the offence punishable u/S 307, 341, 294 r/w 34 of IPC
was filed against co-accused Laad Singh. The appellant was absconded. He
was arrested on 11.02.2021. A Lathi used in the offence was recovered
from him. Supplementary charge-sheet was filed against him. The matter
was committed by concerned JMFC to Sessions Judge, Shajapur.
Thereafter, the matter was made over to the learned trial Court.
4. Learned trial Court framed charges u/S 307, 324 and 294 of IPC
against the appellant and co-accused person. The appellant and co-accused
person abjured their guilt and claimed to be tried. In turn, the prosecution
examined Sharda Bai (PW-1), Kamla Bai (PW-2), Kanta Bai (PW-3),
Jeetmal (PW-4), Halka Patwari Anil Kumar Verma (PW-5), Sonu (PW-6),
Bhagwan Singh (PW-7), Dr. Prashant Madiya (PW-8), Dr. Sunil Sharma
(PW-9), HC Ajay Bhide (PW-10), ASI Nirmal Tigga (PW-11) SI Ram
Gopal Verma (PW-12), SHO K.K. Chaubey (PW-13), SI Surendra Singh
Mehta (PW-14) and Dr. Rajiv Shukla (PW-15) to prove its case. After
completion of prosecution evidence, the accused persons were examined
u/S 313 of Cr.P.C. They had taken defence that accused persons are
innocent and they have been falsely implicated due to animosity. Though,
the accused persons have not examined any witness in their defence.
5. The learned trial Court after hearing the parties and considering
the evidence available on record had acquitted accused Laad Singh and
convicted the appellant u/S 326 of IPC by acquitting him from charges u/S
294 and 324 of IPC.
6. Learned counsel for the appellant/accused submits that the
appellant has not committed the offence and has falsely been implicated in
the case due to old animosity. There are no independent witnesses in the
case and other witnesses are close relative of the injured. Therefore, their
statement is not reliable. The prosecution has failed to prove its case
beyond reasonable doubt. A Lathi seized from the appellant was not sent
for chemical examination. The co-accused Laad Singh has been acquitted
by the trial Court but on the same set of evidence, the appellant cannot be
convicted. The trial Court has not considered the aforementioned fact and
evidence available on record properly and has wrongly convicted and
sentenced the appellant. The conviction suffers from legal and factual
infirmity and is not in accordance with law. Therefore, it is prayed that the
impugned conviction and sentence is liable to be set aside.
7. On other hand, learned counsel for the State/respondent has
opposed the prayer and has supported the impugned judgment.
8. In view of the rival submissions advanced by learned counsel for
both the parties, the point of consideration is whether the appellant had
inflicted grievous injury to injured Sonu with deadly weapon at the
relevant time?
9. As per statement of Dr. Prashant Madiya (PW-8) on 24.09.2019, at
04:00 PM, he examined the injured and gave MLC report (Ex.P-10)
mentioning following injuries:-
i. Lacerated wound 2 x 2 cm on forehead, laterally left side.
ii. Pain on the shoulder joint, left side.
iii. Abrasion 1 x 1 cm on the left arm on the upper side.
iv. Pain on the left elbow joint.
v. Pain and swelling on left forearm.
vi. Pain and swelling on the left thumb.
vii. Abrasion 2 x 1 cm on the tip of left thumb.
viii. Pain on left wrist joint.
ix. Pain and swelling on right foot.
10. The witness opined that all the injuries are caused by hard and
blunt object within 24 hours. He advised X-ray of left forearm, right ankle
joint, both shoulder joints, knee joint and hip joint and referred the injured
to CHC, Shujalpur.
11. Dr. Sunil Sharma (PW-9) stated that he received letter (Ex.P-12)
from police, wherein query was sought in respect of nature of injury
sustained by the injured Sonu (PW-6). He further stated that he treated the
injured at Vinayak Hospital, Shujalpur for 3 days and thereafter, referred
him to Aurobindo Hospital, Indore. He stated that he had given opinion
(Ex.P-12A) on 18.12.2019 as if the injured was not treated on time, there
could have been serious consequences.
12. Dr. Rajiv Shukla (PW-15) stated that the injured was admitted in
Aurobindo Hospital, Indore since 03.10.2019 to 25.10.2019. He had
treated the injured and it was found that there was fracture in left humerus,
both bone of left forearm, right tibia and compound fracture of right
thumb. The witness stated that MLC report is Ex.P-32 and discharge
summary (Ex.P-33) of the injured.
13. The statement of aforementioned medical witnesses has not been
shaken in their cross-examination, therefore, their statement is reliable and
it is clear that the injured received 9 injuries on his body including 1
lacerating wound on head and 5 fractures. Therefore, it is clear that the
injured received grievous injuries on his body.
14. As alleged, the appellant Gyan Singh voluntarily caused grievous
injury by means of deadly weapon is concerned, in this respect the learned
trial Court has placed reliance on the statement of injured Sonu (PW-6), his
mother Kamla Bai (PW-2) and Kanta Bai (PW-3) to convict the appellant.
15. Sonu (PW-6) stated that on 24.09.2019, at around 03:00 PM, he
was going to his agricultural land alongwith his mother Kamla Bai (PW-2).
When they reached near agricultural land of Laad Singh, accused persons
Laad Singh armed with Pharsi and Gyan Singh carrying Lathi came there
and started to abuse them and with intent to kill injured Sonu (PW-6), Laad
Singh gave pharsi blow on his head. Sonu (PW-6) felt down. Thereafter,
both the accused persons assaulted him by their weapons on his hand, legs,
and other body parts. Though, Kamla Bai (PW-2) and Kanta Bai (PW-3)
are partly hostile, but have supported the aforementioned statement of
injured Sonu (PW-6). Both the witnesses are eye-witnesses of the incident.
There is nothing adverse in their cross-examination. Statement of Kamla
Bai (PW-2) is also supported by FIR (Ex.P-2), which was recorded by ASI
Nirmal Tigga (PW-11) within 02:45 hours of the incident. Statement of
Sonu (PW-6) is also supported by medical evidences. Though, Dr. Prashant
Madiya (PW-8) in paragraph 3 of the cross-examination admitted that the
injuries could have been received in motorcycle accident but the same has
been denied by injured Sonu (PW-6), Kanta Bai (PW-3) and Kamla Bai
(PW-2) in their cross-examination. Therefore, it cannot be assumed that the
injured sustained injuries in motorcycle accident.
16. So far as the question of inimical relationship between the parties
is concerned, though on perusal of statement of Sonu (PW-6) and Kamla
Bai (PW-2), it appears that there was inimical relationship between both
the parties, in this respect the Apex Court in the case of Ramashish Rai v.
Jagdish Singh [(2005) 10 SCC 498] has opined as under:-
"7. We are clearly of the view that the findings of the High
Court were erroneous, resulting in grave miscarriage of
justice. The eyewitnesses -- PWs 1, 2, 3, 5, 8 and 10
consistently supported the case of the prosecution
throughout. They were subjected to lengthy cross-
examination but nothing could be elicited from their mouth
so as to discard the creditworthiness of their statements. The
ocular evidence of the eyewitnesses was corroborated in
material particulars by the medical evidence. In our view,
therefore, the acquittal recorded by the High Court on the
aforesaid reasoning is perverse. The High Court discarded
the eyewitness account, branded them as inimical witnesses.
This is not the requirement of law. The requirement of law is
that the testimony of inimical witnesses has to be considered
with caution. If otherwise the witnesses are true and reliable
their testimony cannot be thrown out on the threshold by
branding them as inimical witnesses. By now, it is well-
settled principle of law that enmity is a double-edged sword.
It can be a ground for false implication. It also can be a
ground for assault. Therefore, a duty is cast upon the court to
examine the testimony of inimical witnesses with due caution
and diligence. In the present case the High Court has
rejected the otherwise creditworthy testimony of eyewitness
account merely on the ground that there was enmity between
the prosecution party and the accused party."
17. Similarly, the argument relating to interested witness is
concerned, it appears that both the parties are close relatives and Sonu
(PW-6) is son of Kamla Bai (PW-2) and Kanta Bai (PW-3) is also relative
of injured. The decision laid down by the Apex Court in the case of
Rajinder Singh and anr. V State of Haryana [AIR 2009 SC 1734]
observed that:-
"23. ...It is well settled that if the witness is related to the
deceased, his evidence has to be accepted if found to be
reliable and believable because he would inter-alia be
interested in ensuring that real culprits are punished."
18. In the case of Kuldeep Singh Rajawat V State of Madhya
Pradesh [Criminal Appeal, 502 of 2011], Division Bench of this Court
has held as under:-
(37) It is settled principle of law that merely because the
witnesses may be related to the victim or the deceased, their
testimony may not be rejected. There is no legal canon that
only unrelated witnesses shall be considered credible. On the
contrary, we are of the view that it is not natural for the
related witnesses to implicate a person falsely leaving aside
the actual culprit. It is pertinent to mention here that only the
interested witnesses want to see the real culprit is brought to
book.
19. In the case of Bhajan Singh alias Harbhajan Singh And Ors. V
State Of Haryana [(2011) 7 SCC 421], the Apex Court has opined as
under:-
"36. The evidence of the stamped witness must be given due
weightage as his presence on the place of occurrence cannot
be doubted. His statement is generally considered to be very
reliable and it is unlikely that he has spared the actual
assailant in order to falsely implicate someone else. The
testimony of an injured witness has its own relevancy and
efficacy as he has sustained injuries at the time and place of
occurrence and this lends support to his testimony that he
was present at the time of occurrence. Thus, the testimony of
an injured witness is accorded a special status in law. Such a
witness comes with a built-in guarantee of his presence at the
scene of the crime and is unlikely to spare his actual
assailant(s) in order to falsely implicate someone.
"Convincing evidence is required to discredit an injured
witness." Thus, the evidence of an injured witness should be
relied upon unless there are grounds for the rejection of his
evidence on the basis of major contradictions and
discrepancies therein. (Vide Abdul Sayeed v. State of M.P.
[(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] ; Kailas v.
State of Maharashtra [(2011) 1 SCC 793 : (2011) 1 SCC
(Cri) 401] ; Durbal v. State of U.P. [(2011) 2 SCC 676 :
(2011) 1 SCC (Cri) 877] and State of U.P. v. Naresh [(2011)
4 SCC 324 : (2011) 2 SCC (Cri) 216] .)"
20. Though, the learned trial Court has acquitted the co-accused
Laad Singh and has convicted the present appellant Gyan Singh. In
paragraphs 42 and 43 of impugned judgement, the learned trial Court has
observed that the Pharsi is a sharp edged weapon but as per medical
evidence, all injuries received by injured were caused by hard and blunt
object and not even a single injury sustained by injured was caused by
sharp edged weapon. There is inimical relationship between the parties,
therefore, involvement of Laad Singh in the incident is doubtful. In this
respect, the Apex Court in the case of Janardan Singh v. State of Bihar,
[(2009) 16 SCC 269], has opined as under:-
"6. In such cases, as noticed earlier, a duty is cast upon the
court to sift the evidence and after a close scrutiny with
proper care and caution, to come to a judicial conclusion as
to who out of the accused persons can be considered to have
actually committed the offence. This Court in Deep Chand v.
State of Haryana [(1969) 3 SCC 890] pointed out that the
maxim falsus in uno, falsus in omnibus is not a sound rule to
apply in the conditions in this country and, therefore, it is the
duty of the court in cases where a witness has been found to
have given unreliable evidence in regard to certain
particulars, to scrutinise the rest of his evidence with care
and caution. If the remaining evidence is trustworthy and
substratum of the prosecution case remains intact, then the
court should uphold the prosecution case to that extent. To
the same effect is the judgment of this Court in Ranbir v.
State of Punjab [(1973) 2 SCC 444 : 1973 SCC (Cri) 858 :
AIR 1973 SC 1409] . In the instant case the High Court has
very elaborately dealt with the evidence of the eyewitnesses
and come to the conclusion that the appellant alone is
responsible for the deaths of Ashok Singh and Dalan Singh.
We do not find any ground to interfere with such a finding of
fact arrived at by the High Court. It may not be out of place
to mention that the trial court, on facts, had also held that the
accused was responsible for the murder of Ashok Singh and
Dalan Singh."
21. In the instant case, there is clear and clinching evidence of the
injured Sonu (PW-6) available in the case against the appellant that he
caused the injuries on his body parts by means of Lathi, which is further
supported by Kamla Bai (PW-2) and Kanta Bai (PW-3). Statement of
injured witness is also supported by medical evidence. Therefore,
submission of the learned counsel for the appellant that the co-accused
Laad Singh has been acquitted by the trial Court and the conviction of the
appellant based on the same set of evidence is not in accordance with the
law, is not acceptable.
22. Though, Lathi seized from the appellant was not sent for
chemical examination and also was not brought before Dr. Prashant Madia
(PW-8), who examined the injured for his opinion but it appears that the
incident is of 24.09.2019, S.I. Surendra Singh Mehta (PW-14) stated that
earlier the appellant was absconded and he was arrested on 11.02.2021 and
on the same day he seized a lathi (Article A-19), wherein 5 iron rings were
fixed at the instance of appellant vide seizure memo (Ex.P-31). There is
also no evidence that the said seized lathi was used in the offence by the
appellant but the case depends on testimony of injured and eye-witnesses
that the appellant assaulted the injured by Lathi bearing iron rings,
therefore, non production of the aforementioned Lathi before concerning
Doctor for his opinion and lack in sending it for chemical examination
cause no dent to the prosecution story.
23. In view of the aforesaid, it emerges that the prosecution case is
supported by injured himself and eye-witnesses, further supported by
medical evidence and also supported by FIR (Ex.P-2). Therefore, statement
of injured and eye-witnesses is reliable and it is proved beyond reasonable
doubt that the appellant voluntarily caused grievous injury to injured Sonu
(PW-6) by deadly weapon. Therefore, the learned trial Court has rightly
convicted the appellant u/S 326 of IPC. So far as the question of sentence
is concerned, the injured sustained multiple fractures in his body.
Therefore, looking to the facts and circumstances of the case, it appears
that the learned trial Court has rightly sentenced the appellant. Hence, the
same requires no interference.
24. Resultantly, the conviction and sentence passed by the learned
trial court is affirmed and the appeal filed by the appellant is hereby
dismissed.
25. Free copy of this judgment be sent to the appellant through
concerning jail superintendent.
26. Record of trial Court be sent back alongwith copy of judgment
for intimation and compliance.
(PRAKASH CHANDRA GUPTA)
JUDGE
Shruti
SHRU Digitally signed by SHRUTI JHA
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH INDORE, ou=HIGH COURT
OF MADHYA PRADESH BENCH INDORE,
2.5.4.20=46283ba6a215e3d40573a7f0ced063
2c8b8e41b29405387437111f0f1c897b84,
TI JHA
postalCode=452001, st=Madhya Pradesh,
serialNumber=975D0201B09C38473541A490
7EE0732D1EA079B8EE35C9E2D19845AF26B0
FBF4, cn=SHRUTI JHA
Date: 2024.03.06 10:24:33 +05'30'
