Madhya Pradesh High Court
Sooraj Pal vs Ompratap @ O.P. Sikarwar on 9 May, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 9 th OF MAY, 2024
CRIMINAL APPEAL No. 15024 of 2023
BETWEEN:-
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION CITY KOTWALI DISTRICT MORENA (MADHYA
PRADESH)
.....APPELLANT
(BY DR. ANJALI GYANANI - PUBLIC PROSECUTOR)
AND
1. PRASHANT SIKARWAR S/O SHRI MAHENDRA
SINGH SIKARWAR, AGED ABOUT 25 YEARS, R/O
MANSHADEVI MANDIR KE PAS BAJRANJ WALI
GALI GANESHPURA THANA CITY KOTWALI
DISTRICT MORENA (MADHYA PRADESH)
2. MAHENDRA SINGH SIKARWAR S/O LATE SHRI
RAMRATAN SINGH SIKARWAR, AGED ABOUT 56
YEAR S, R/O MANSHADEVI MANDIR KE PASS,
BAJRANG WALI GALI, GANESHPURA, THANA
C I T Y KOTWALI, DISTT. MORENA (MADHYA
PRADESH)
3. OMPRATAP @ O.P. SIKARWAR S/O LATE SHRI
RAMRATAN SINGH SIKARWAR, AGED ABOUT 52
YEAR S, R/O MANSHADEVI MANDIR KE PASS,
BAJRANG WALI GALI GANESHPURA, THANA CITY
KOTWALI, DISTT. MORENA (MADHYA PRADESH)
4. ABHAY SINGH SIKARWAR S/O SHRI OMPRATAP
SINGH SIKARWAR, AGED ABOUT 22 YEARS, R/O
MANSHADEVI MANDIR KE PASS, BAJRANG WALI
GALI GANESHPURA, THANA CITY KOTWALI,
Signature Not Verified
Signed by: MADHU
MORENA (MADHYA PRADESH)
SOODAN PRASAD
Signing time: 16-05-2024
10:46:45 PM
.....RESPONDENTS
2
CRIMINAL APPEAL No. 10661 of 2023
BETWEEN:-
SOORAJ PAL S/O CHANDRAPAL JADON, AGED ABOUT
38 YEARS, R/O NEW HOUSING BOARD COLONY
DISTRICT MORENA (MADHYA PRADESH)
.....APPELLANT
(BY SHRI PRASHANT SHARMA - ADVOCATE )
AND
1. OMPRATAP @ O.P. SIKARWAR S/O LATE SHRI
RAMRATAN SINGH SIKARWAR, AGED ABOUT 52
YE A R S , R/O NEAR MANSHADEVI MANDIR
BAJRANG WALI GALI GANEHSPURA P.S. CITY
KOTWALI DISTRICT MORENA (MADHYA
PRADESH)
2. ABHAY SINGH SIKARWAR S/O SHRI OMPRATAP
SINGH SIKARWAR, AGED ABOUT 22 YEARS, R/O
NEAR MANSHADEVI MAHDIR BAJRANG WALI
GALI GANESHURA P.S. CITY KOTWALI DISTT.
MORENA (MADHYA PRADESH)
3. THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION CITY KOTWALI, DISTT.
MORENA (MADHYA PRADESH)
.....RESPONDENTS
(DR. ANJALI GYANANI - PUBLIC PROSECUTOR FOR RESPONDENT
NO.3/STATE.)
T h is appeal coming on for admission this day, Justice Rajendra
Kumar Vani passed the following:
ORDER
I.A. No. 22137 of 2023, an application under section 378(3) of Cr.P.C.,
in Criminal Appeal No.15024 of 2023 and I.A.No.16681 of 2023, an
application under Section 378(4) of Cr.P.C., in Criminal Appeal No.10661 of
2023 for grant of leave to appeal, are being decided by this common order
since both the appeals have arisen out of same judgment.
2. Criminal Appeal No.15024 of 2023 has been filed by the State against the
judgment of acquittal dated 13.7.2023 of respondents Prashant Sikarwar,
Mahendra Singh Sikarwar, Ompratap @ O.P. Sikarwar and Abhay Singh
Sikarwar while Criminal Appeal No.10661 of 2023 has been filed by the
complainant against the same judgment of acquittal of respondents Ompratap
@ O.P.Sikarwar and Abhay Singh Sikarwar. Vide impugned judgment
Ompratap Sikarwar & Abhay Sikarwar have been acquitted from the charges
under Sections 294, 341, 506 Part II, 325 (325/34), 307 (307/34) and 302
(302/34) of IPC and accused Mahendra Sikarwar and Prashant Sikarwar have
been acquitted of charges under Sections 294, 506 Part II, 325 (325/34), 307
(307/34) and 302/34 of IPC (though convicted under Section 302 of IPC).
3. Prosecution case in brief is that on 20.09.2018 at about 8.30 pm
complainant Soorajpal Singh Jadaun along with his brother Deepak Jadaun and
cousin brother Rohit Jadaun was going in Ford Car No.MP06 CA 8666 from
New Housing Board Colony to his house at Tulsi Vihar Colony Morena. As
soon as they reached in front of house of Kanchan Singh Tomar situated at
Ganeshpura, accused Mahendra Singh Sikarwar, Prashant Singh Sikarwar, K.P.
@ Krishanpal Sikarwar and Ompratap @ O.P.Sikarwar carrying Danda in the
hand came and stopped the car and started abusing the complainant and his
brother. When complainant objected, O.P.@ Ompratap Sikarwar and K.P. @
Krishanpal committed Marpeet with Danda as a result of which complainant
sustained injury in his right elbow. Thereafter accused Ompratap inflicted
Danda blow to complainant from behind. When Rohit tried to intervene,
accused Prashant and Mahendra pulled him and accused Mahendra inflicted
Signature NotDanda
Verified blow on the head of Rohit. Accused Prashant also inflicted Danda blow
Signed by: MADHU
SOODAN PRASAD
and also gave legs and fists blow. When brother of complainant Deepak tried to
Signing time: 16-05-2024
10:46:45 PM
intervene, then two other persons came from behind and caught hold of
Deepak. Thereafter accused persons went away by threatening them to face dire
consequences if matter is reported. After the incident complainant Sooraj and
his brother Deepak took Rohit to Distt. Hospital, Morena, from where he was
referred to J.A.H. Gwalior where during treatment on 21.9.2018 he died.
4. A challan has been filed by the police Station City Kotwali, Morena initially
against three persons i.e. Prashant Sikarwar, Mahendra Sikarwar and Ompratap
@ O.P.Sikarwar and after two years a supplementary Challan has been filed
against Abhay Singh Sikarwar.
5. It is submitted by learned counsel for the State as well as complainant
Soorajpal that acquittal of accused persons from the charges levelled is not
based on cogent grounds. The prosecution has proved the charges beyond all
reasonable doubt. Learned trial Court has erred in acquitting the accused
persons from the said charges.
6. As regards the appeal against acquittal, the law is settled that there is
limited scope for considering an appeal against acquittal. The Hon'ble Apex
Court in the case of Mallappa v. State of Karnataka, (2024) 3 SCC 544 in
para 42 has laid down as under :-
"42.Our criminal jurisprudence is essentially based on the
promise that no innocent shall be condemned as guilty. All the
safeguards and the jurisprudential values of criminal law, are
intended to prevent any failure of justice. The principles which
come into play while deciding an appeal from acquittal could
be summarised as:
(i) Appreciation of evidence is the core element of a criminal
trial and such appreciation must be comprehensive --
Signing time: 16-05-2024 (ii) Partial or selective appreciation of evidence may result in
a miscarriage of justice and is in itself a ground of challenge;
(iii) If the court, after appreciation of evidence, finds that two
views are possible, the one in favour of the accused shall
ordinarily be followed;
(iv) If the view of the trial court is a legally plausible view,
me r e possibility of a contrary view shall not justify the
reversal of acquittal;
(v) If the appellate court is inclined to reverse the acquittal in
appeal on a reappreciation of evidence, it must specifically
address all the reasons given by the trial court for acquittal and
must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the
appellate court must demonstrate an illegality, perversity or
error of law or fact in the decision of the trial court."
7. In the light of the law laid down as aforesaid, it is to be examined whether
the order of acquittal of learned trial Court is not based on cogent grounds and
whether the accused persons are liable to be convicted for the aforesaid
offences.
8. The incident was of 20.9.2018 and as per the FIR, accused persons
Prashant Singh Sikarwar and Mahendra have beaten Rohit who died in the
incident for which inter alia a charge under Section 302 or 302/34 of IPC has
been levelled against the accused persons. In this incident, complainant
Soorajpal has sustained injury on his elbow of right hand and that injury has
been attributed to accused K.P. @ Krishanpal who has not been made accused
by the prosecution. As per the FIR and evidence of eye-witnesses complainant
Soorajpal (PW-1) and Deepak (PW-2), complainant Soorajpal has sustained
other injury on his left hand which was attributed to accused Ompratap, but
Signature Notinjury
Verifiedon the left hand was not found by the concerned doctor while examining
Signed by: MADHU
SOODAN PRASAD
the complainant just after the incident. As per the statement of Dr. Ashish
Signing time: 16-05-2024
10:46:45 PM
Agrawal (PW-4) there was only one injury on the body of complainant
Soorajpal which was on his right elbow and which was allegedly caused by
K.P.Sikarwar. Therefore, injury attributed to accused Ompratap is not found in
medical examination which indicates that on this aspect the evidence of
Soorajpal (PW-1) and Deepak (PW-2) are not reliable.
9. So far as accused Abhay Singh is concerned, he is not named in the FIR
though it was stated in the FIR that when the brother of complainant Soorajpal
i.e. Deepak (PW-2) started resolving the dispute, then suddenly two persons
came forward and caught hold of Deepak. It may be inferred in the facts and
circumstances of the case that such persons with a view to resolve the dispute
caught hold of Deepak to remove him from the place of occurrence as Deepak
has not sustained any injury. Hence, in the facts and circumstances of the case
and in the light of evidence on record, it cannot be said that those two persons
acted in furtherance of common intention of named accused persons Prashant,
Mahendra and Ompratap. Further the names of those two persons have not
been revealed in the FIR.
10. The incident is of 20.9.2018 and as per the statement of Soorajpal (PW-
1) the name of Abhay Singh is intimated to him by Deepak (PW-2) on
25.9.2018. Complainant Soorajpal (PW-1) in cross-examination para 34 has
categorically stated that Deepak has not intimated the name of Abhay Singh
before lodging of the FIR. Later on he suo motu states that Deepak had the
information regarding Abhay from elsewhere. However, wherefrom Deepak has
gathered this information, is not clarified by this witness. On this point also, the
statement of Deepak does not inspire confidence of this Court.
This witness (Deepak) in cross-examination para 24 categorically admits
Signing time: 16-05-2024
10:46:45 PM
that he did not specify the names of other two persons who have caught hold of
him. He did not mention the body features of those two persons in FIR or his
police statement. He also stated that he knows them by their face and not by
their names. He also admits that after arrest of accused Abhay the police or the
prosecution has not conducted any test identification parade and got identified
them. The prosecution has not shown any cause for non-conduction of test
identification parade with regard to accused Abhay. In the light of aforesaid
situation, the involvement of Abhay Singh in this incident becomes highly
doubtful.
12. It is pertinent to mention here that if Deepak (PW-2) knew Abhay Singh
by face, then why he waited for five days from 20.9.2018 to 25.9.2018. The
delay of five days here in describing the name of Abhay Singh to complainant
Soorajpal also assumes importance and creates a doubt on prosecution case as
against Abhay Singh.
13. So far as seizure is concerned, though a Danda has been seized from
accused Abhay Singh but that is after two years of the incident and that Danda
was not sent for FSL examination and it was neither the story of prosecution
that such Danda was used by accused Abhay Singh in the incident nor such
evidence is on record. Therefore, seizure from accused Abhay Singh is of no
value.
14. So far as seizure from accused Ompratap is concerned, the FSL report
Ex.P/32 is inconclusive and that does not render any support to the case of
prosecution, therefore, seizure from accused Abhay Singh and Ompratap is of
no use and in this regard learned trial Court in para 82 to 90 has rightly
concluded that such seizure does not support the case of prosecution.
Therefore, acquittal of respondents Abhay Singh and Omprtap is not
faulted with.
16. So far as acquittal of respondents Mahendra Sikarwar & Prashant
Sikarwar under Sections 294, 506 Part II, 325 or 325/34 and 307 or 307/34 of
IPC is concerned, the offence of 307 of IPC has been charged on accused
persons in relation to injury sustained by complainant Soorajpal on his head, but
as discussed above, there is no injury on the head of complainant Soorajpal,
instead he has suffered one contusion in his right elbow having size of 5 cm x 5
cm and said injury is attributed to K.P. @ Krishanpal Sikarwar, who was not
made accused in this case. The ingredients of aforesaid offences from which
these accused persons have been acquitted are not established from the
evidence, therefore, acquittal of these respondents from the charges under
Sections 307 or 307/34, 325 or 325/34, 294 and 506 Part II of IPC is not found
to be illegal or perverse.
17. In the backdrop of foregoing factual matrix and the law as regards the
appeal against acquittal, I.A.No.22137 of 2023 & I.A.No.16681 of 2023 for
leave to appeal are not entertainable and therefore, both the applications are
rejected. Consequently both the appeals are dismissed.
(VIVEK RUSIA) (RAJENDRA KUMAR VANI)
JUDGE JUDGE
ms/-
