Madhya Pradesh High Court
Rahul @ Babbal And 7 Ors. vs The State Of Madhya Pradesh on 15 May, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 1108 of 2011
BETWEEN:-
RAHUL @ BABBAL AND 7 ORS. S/O
1. SURESH SINGH, AGED ABOUT 24
YEARS, VILL. AHIRKHEDI P.S.
SADALPUR DISTTPDHAR/ NEAR JAIN
BUILDING MANAWAR P.S. MANAW
(MADHYA PRADESH)
2. DASHRATH S/O SITALSINGH RAJPUT,
AGED ABOUT 35 YEARS, NEAR JAIN
BUILDING,MANAWAR, P.S.MANAWAR
(MADHYA PRADESH)
3. LATE SHRI RATAN SINGH S/O
GULSINGH AGED 50 YEARS,
GOVERNMENT SERVANT
CONSTABLE THROUGH LR PARWAT
SINGH S/O LATE RATAN SINGH,
OCCUPATION: BUSINESS GANESH
NAGAR, INDORE DISTRICT INDORE
(MADHYA PRADESH)
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 5/15/2024
6:59:55 PM
4. RUGNATH S/O MOHAN GAVLI, AGED
ABOUT 47 YEARS, OCCUPATION:
SERVANT EXCISE DEPARTMENT,
MANAWAR (MADHYA PRADESH)
5. BHURELAL S/O LIMBAJI, AGED
ABOUT 56 YEARS, OCCUPATION:
CONSTABLE EXCISE DEPARTMENT,
MANAWAR (MADHYA PRADESH)
6. SHOBHARAM S/O BANGAJI, AGED
ABOUT 35 YEARS, OCCUPATION:
CONSTABLE EXCISE DEPARTMENT,
MANAWAR (MADHYA PRADESH)
7. GANPAT S/O SAJJANSINGH, AGED
ABOUT 24 YEARS, OCCUPATION:
DRIVER NARWALI, P.S. TANDA
(MADHYA PRADESH)
8. MAHENDRA SINGH S/O MOHAN
RAWAT @ YOVAN, AGED ABOUT 46
YEARS, OCCUPATION: ASSTT. DIST.
OFFICER EXCISE DEPARTMENT,
MANAWAR (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI VIVEK SINGH, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT.
THRU. P.S. MANAWAR DISTT. DHAR
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI H.S. RATHORE, GOVERNMENT ADVOCATE)
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 5/15/2024
6:59:55 PM
Reserved on : 02.05.2024
Pronounced on : 15.05.2024
This criminal appeals having been heard and reserved for
judgments, coming on for pronouncement this day, the court passed the
following:
JUDGMENT
The appellants have preferred this appeal under Section 374 of the
Code of Criminal Procedure, 1973 (for short 'the Code') being aggrieved
and disgruntled by the judgment dated 15.09.2011 passed by learned
Additional Sessions Judge, Manawar, District-Dhar (M.P.) in Sessions
Trial No. 195/2006, whereby the learned trial Court has convicted the
appellants for the offence under Section 304 (Part-II) read with Section
149 of the Indian Penal Code, 1860 (hereinafter referred as to "IPC")
and sentenced them to undergo 7 years R.I. with fine of Rs.10,000/- and
default stipulations.
2. The prosecution story, in a nutshell, is that, on 09.10.2005, the
employees and liquor contractors of the Excise Department went to the
house of deceased Manoharlal for inspection and for seizing illegal
liquor. As soon as the deceased saw the excise police, he started running
towards the forest and the appellants chased him. It is alleged that the
appellants had forcefully taken the deceased Manoharlal in their jeep
and thereafter they took him to the Excise Office. When the son of
deceased reached the Excise Office with surety, the appellants stated that
they had released the deceased Manoharlal. The deceased was searched
and on 10.10.2005, the dead body of the deceased was found in the field
of Satyanarayan Bhilala. The said information was given to the Police
Station, Bakaner and Merg Intimation No. 63/2005 (Exhibit-P/19) was
registered. Thereupon, after due investigation, charge sheet was filed
against the appellants for the offence under Section 304 read with
Section 34 of IPC before the Court of Judicial Magistrate First Class,
Shajapur.
3. In turn, the case was committed to the Court of Sessions and made
over to the learned Additional Sessions Judge, Manawar, District Dhar.
Initially, the learned Additional Sessions Judge had discharged the
appellants vide order dated 31.08.2006 passed in Sessions Trial No.
195/2006 stating that Section 304 read with Section 34 of IPC are not
made out from the prima-facie evidence available on record. However,
the said order was impugned before this Court and the matter was
further remanded back to the trial Court with direction to frame the
charges against the appellants. Afterwards, the learned trial Court framed
the charges against the appellants for the offence under Section 304
(Part-II) read with Section 149 of I.P.C. They abjured their guilt and took
a plea that they had been falsely implicated in the present crime and
prayed for trial.
4. In order to bring home the charges, the prosecution has examined
as many as 15 witnesses namely Rakesh (PW-1), Babulal (PW-2), Dilip
(PW-3), Naharsingh (PW-4), Salim Khan (PW-5), Manohar Verma (PW-
6), T.R. Chauhan (PW-7), Yashwant (PW-8), Amarsingh (PW-9),
Manoharsingh (PW-10), Sunil (PW-11), Dr. C.K. Rane (PW-12), Dr.
N.M. Unda (PW-13), Anandsingh Baskale (PW-14) and Manoharsingh
(PW-15). No witness has been examined in support of the defence.
5. Learned trial Court, on appreciation of the evidence and argument
adduced by the parties, pronounced the impugned judgment on
15.09.2011 and finally concluded the case and convicted the appellants
for commission of the said offence under Section 304 (Part-II) readwith
Section 149 of I.P.C.
6. Learned counsel for the appellants submits that the appellant are
innocent and the learned trial Court has convicted the appellants
wrongly without considering the evidence available on record. Counsel
for the appellants addressed the definition of Section 299 of IPC wherein
it has been mentioned that whoever causes death by doing an act with
the an intention of causing death, or with the intention of causing such
bodily injury as is likely to cause death, or with the knowledge that he is
likely by such act to cause death, commits the offence of culpable
homicide. The death of the deceased has been ruled by the medical
evidence to be 'natural' and with no injury found on the body of
deceased.
7. It is also submitted that there are material contradictions and
omissions in the statements of prosecution witnesses but the learned trial
Court has erred in ignoring the same and in convicting the appellants.
Further, it is submitted that Dr. N.M. Unda (PW-13) has clearly stated in
para 18 of his statement that it cannot be said that injury was caused by
kicks or by hard thing. If the injury was caused by sharp weapon, the
same would be seen and also narrated that the death of the deceased was
caused due to heart failure as a result of running or fighting. To bolster
his arguments, learned counsel for the appellants placed reliance upon
the judgment of Hon'ble Apex Court in the case of Sharad Birdhichand
Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 and also placed
observation of Hon'ble High Court of Bombay in the case of Parasram
S/o Gangaram Khote Vs. State of Maharashtra in Cr.A. No. 248/2010.
In light of non-satisfaction of the above detailed principles, the
prosecution stands vitiated, and the benefit of the same is required to be
given to the appellants. Section 149 of IPC has been wrongfully added
as the gathering of the appellants at the house of deceased or at the
Excise Office does not fall within the ambit of 'unlawful assembly'
provided under Section 141 of IPC. He has also submitted that the
deceased himself started to run away to prevent any lawful arrest or
besieging by the appellants. Thereafter only, the appellants chased the
deceased with intention to capture him. The case of the prosecution is
entirely based on assumptions without existence of any 'intention' or
'knowledge' on the part of appellants to render their actions as 'culpable
homicide' as per requirements of Section 299 and 304 (Part-II) of IPC.
On these grounds, counsel prayed to set aside the impugned order in
favour of appellants.
8. Learned Govt. Advocate for the State has opposed the prayer,
inviting the attention of this Court towards the conclusive paragraphs of
impugned judgment. He submitted that the deceased has received
several injuries caused by the appellants but due to putrefaction of the
body, no injury was seen by the doctor and Dr. N.M. Unda (PW-13) has
stated in his statement that the death can be caused by running or by
beating. Dr. N.M. Unda also stated that the deceased was suffering from
a disease for a longtime. The trial Court has rightly convicted the
appellants by sentencing them appropriately. Hence, he prays for
dismissal of the appeal.
9. In the backdrop of rival submissions, the question of
determination for adjudicating this appeal is, as to whether the findings
of learned trial Court regarding conviction and punishment of the
appellants under Section 304 (Part-II) readwith Section 149 of I.P.C. is
incorrect in the eyes of law and facts or not.
10. In view of rival submissions, the statement of Dr. N.M. Unda
(PW-13) recorded before the trial Court is significant. In this statement,
Dr. N.M. Unda has narrated that the cause of death of the deceased, as
per the Autopsy Report (Exhibit-P/22), is due to heart failure as a result
of running or fighting. It is clear from the testimony of Dr. N.M. Unda
(PW-13) that the deceased did not sustain any grievous or life
threatening injury. Furthermore, existence of any external injury visible
on the body of the deceased was inconclusive due to the mid-to-
advanced stage of decomposition of the deceased's body.
11. In view of the aforesaid, point of determination, at the outset, it is
required to examine the nature of death as to whether death of deceased
is coming under the purview of culpable homicide not amounting to
murder. On this aspect, testimonies of eye witnesses as well as medical
reports of Dr. C.K. Rane (PW-12) and Dr. N.M. Unda (PW-13) are
required to be ruminated. Rakesh (PW-1) who is son of deceased, is eye
witness of the incident as per prosecution case. In examination-in-chief,
this witness stated that when the accused persons/appellants entered the
house of his father /deceased Manoharlal, his father started running
away towards the river. The appellants chased him. The incident was
seen by Pratap, Babulal S/o Ludiya, Dhankunwarbai and other witnesses
of village. He and his brothers Hari, Dilip and Jitendra followed the
appellants and at the place Gata Bawa, the appellants had taken his
father in their vehicle. Till then, nothing came on record about beating of
the deceased. Further, this witness stated that he went to the Excise
Office, Manawar and saw his father sitting on a stool and one excise
officer, Rawat alongwith other appellants were there. After that, this
witness stated that the appellants were stating that his father should be
beaten. He has also deposed that at that time, Shobharam, Gokhle and
other co-accused were beating his father and he was forced to leave the
office.
12. On this aspect, when this witness was cross-examined, in para 12,
he stated that "he did not remember as to whether, earlier he narrated the
fact to police that the appellants prevented his father and beaten him." In
the same paragraph, he also stated that the incident of beating to his
father, was told by him to Babulal, Manohar S/o Mangilal, Naharsingh
S/o Gotiya, Pratap S/o Gopal, Sunil S/o Chhaganlal, Dhankunwar S/o
Galsingh, Dayaram S/o Mehtakh, Ramesh S/o Bilman, Udaysingh S/o
Devisingh, Mahesh S/o Mangilal, Madan S/o Mota.
13. On this point, the testimonies of other witnesses namely Babulal
(PW-2), Manohar Verma (PW-6) and Sunil (PW-11) have been examined
but they have not said anything regarding beating the deceased
Manoharlal by the appellants. Certainly, they have supported the
prosecution case regarding running of the deceased and he was chased
by appellants, however, they have not stated anything regarding beating.
14. Here, it is worth mentioning that Naharsingh (PW-4), Sunil (PW-
11) have not supported the prosecution case to some extent. Naharsingh
(PW-4) had denied the fact that he had the jeep parked in front of the
house of Manohar. This statement is contradictory to his police
statement (Ex.-D/2). Even then the witness has not been declared hostile.
Likewise, Sunil (PW-11) has denied the fact that Rakesh came to him at
second day and stated that the excise personnel have taken his father
Manohar. This statement is also contradictory to his police statement
(Ex.-D/4).
15. In this regard, it is well settled that if the prosecution witness is
not supporting the prosecution case and such witness is not declared
hostile, the defence can rely on the evidence of such witness which
would be binding on the prosecution. In Rajaram Vs. State of
Rajasthan, (2005) 5 SCC 272, the Hon'ble Apex Court held that the
testimony of the such witnesses cannot be side lined. This principle is
also endorsed again in Mukhtiar Ahmed Ansari Vs. State (NCT of
Delhi), (2005) 5 SCC 258.
16. In view of aforesaid ratio, the fact regarding parking jeep in front
of the deceased's house and taking him in jeep by excise police, is
contradicted by aforesaid witnesses Naharsingh (PW-4) and Sunil
(PW-11). Furthermore, when other witnesses are not supporting the fact
of beating, the statement of Rakesh (PW-1), the son of deceased, cannot
be treated as reliable evidence.
17. Shri Vivek Singh, learned counsel for the appellants contended
that the prosecution witnesses are relatives of deceased, however, in
spite of that, their statements are not reliable. On the contrary, Shri H.S.
Rathore, learned Government Advocate for the State further stressed on
the testimony of Dilip (PW-3) wherein he has stated in his examination-
in-chief regarding beating and compelling the deceased to run away.
However, the statement of this witness with regard to beating is also
appearing as a material omission because this fact is not available in his
police statement (Ex.D/1). In this context, Para 5 of his cross-
examination is significant wherein he deposed that he had narrated to
police that accused persons were beating to his father and making him to
run away. Further, he stated that if this statement is not mentioned in his
police statement (Ex.D/1), he would be unable to explain. On this aspect,
Investigating Officer, Anansingh Baskale in paragraph 14 of his cross-
examination uttered that witness Dilip (PW-3) has not stated regarding
beating of his father by the appellants/excise police.
18. Virtually, this contradiction and omission regarding beating in
statement of Dilip (PW-3), the son of deceased Manohar is going to the
root of the case. Actually, such omission is amounting to embellishment
in the Court statement and it, therefore, reveals the tendency of
implicating the appellants in offence.
19. In this way, the prosecution case regarding beating by the
appellants is only substantiated by Rakesh (PW-1) son of deceased in
vague and uncertain way. However, since it doesn't find support from
medical testimony and other witnesses, it cannot be relied upon. Another
question also arises. In this regard, if the son of deceased had seen the
appellants beating his father why he did not make any complaint to the
police officer immediately just after the incident or make complaint to
the competent authorities. Here, it is worth mentioning that the statement
(Ex.D/5) of Rakesh (PW-1) was recorded by Anandsingh Baskale (PW-
14), Dy. Superintendent of Police on 15.10.2005. As such, it is delayed
by six days from the date of said beating. Similarly, the persons to whom
he narrated regarding beating, have not supported the case. Accordingly,
the allegation as to beating the deceased against the appellants appears to
be false.
20. Learned Government Advocate also rests his arguments that
according to dead body punchnama of the deceased, some blackening on
parts of the body were visible thereon but it does not find support from
the postmortem report made by Dr. K.C. Rane (PW-12) and forensic
report of Dr. N.M. Unda (PW-13). As per the query report (Ex-P/22), the
death was caused due to heart failure and the deceased had been
suffering from heart disease for long time. However, in para 18, Dr.
N.M. Unda (PW-13), specifically stated that the body of the deceased
was decomposed, hence, no injury was found, it is not possible to see the
sign of injury but further this witness voluntarily deposed that there was
no injury visible on the dead body. Further, he has also stated that if the
deceased was injured by a sharp weapon that would be visible.
21. Looking to the importance of this version, it is worth to be written
in original way as under :-
"lk{kh us Lor% dgk fd 'kjhj ij brus dhMs iM pqds Fks
vkSj lMku yx pqdh Fkh fd pksV ns[kh tkuk laHko ugha
FkhA lk{kh us Lor% dgk fd dBksj oLrq ls pksV mlds
'kjhj ij ugha ikbZ FkhA ;fn e`rd dks /kkjnkj oLrq ls
dksbZ pksV igqpkbZ xbZ gksrh rks og ns[kh tk ldrh Fkh"
22. So far the blackening or injury marks mentioned in body
panchnama report is concerned, such testimony in absence of medical
reports of evidence is insufficient to conclude that there were marks of
injuries on the body of deceased and such marks were caused as a result
of beating the deceased by the appellants. In the same way, the vague
and obscure statement of Rakesh (PW-1) is also not sufficient to prove
the fact of beating in absence of corroboration and medical testimony.
23. In conspectus of the aforesaid analysis, the death of the deceased
cannot be envisaged in purview of culpable homicide. Since as per
medical report and forensic report, the deceased succumbed to heart
failure, the death of the deceased would be treated as natural death rather
than culpable homicide not amounting to murder.
24. Learned Government Advocate expostulated that since the age of
deceased was more than 50 years, compelling him to run should be taken
into account for committing culpable homicide not amounting to murder.
In this regard, the statement of Rakesh (PW-1), is worth to peruse in para
5 & 6 of his cross-examination, he has conceded that earlier his father
was convicted for the offences under the Excise Act and it is true that in
a case of excise, deceased was penalized for fine of Rs.1,200/-. In this
sequence, this witness also conceded that he has also facing trial of
Excise Act of countrymade liquor.
25. Now, the question arises that when the excise employees came to
the house of deceased, then upon seeing them as to why deceased started
to run while excise employees and witness Rakesh were also present
thereon. Under these conditions, the appellants who are on duty of
inspection and checking, could not be made liable to force him to run
and therefore, this stand of learned government counsel, is also found
without leg.
26. Shri Vivek Singh, learned counsel for the appellants vehemently
contended that the learned trial Court in para 82 to 84 of the judgment
has unnecessarily tried to bring the matter under the purview of Section
299 of IPC and wrongfully observed that the death of the deceased
would come under the purview of culpable homicide. However, In view
of the aforesaid discussion, it is graphically evident that as per testimony
of Dr. N.M. Unda (PW-13), the deceased was suffering from heart
disease and due to running, he succumbed to heart failure as such, even
if it is assumed that the appellants forced him to run and chased him, the
appellants cannot be blamed for the death of deceased.
27. As per prosecution case itself, deceased upon seeing the appellants
himself started to run away to prevent his lawful arrest. therefore, only
on the basis of the fact that appellants chased the deceased with the
purpose of arrest him, they would not be liable for the said offence of
culpable homicide. The prosecution has also not placed any evidence to
point out the fact that the appellants were having knowledge of heart
condition of the deceased.
28. On the contrary, Shri Rathore, learned Government Advocate for
State has also submitted that since the appellants were with the deceased
at last time, then they have to explain this inculpatory circumstances of
last seen. So far as the evidence of last seen is concerned, certainly, the
appellants were seen with the deceased before death. Nevertheless, only
on that basis, the appellants cannot be convicted especially when the
body of deceased was found in the filed of Satyanarayan Bhilala.
29. On this aspect, the law laid down by Hon'ble Apex Court in the
case of Navaneethakrishnan Vs. The State by Inspector of Police
reported in AIR 2018 SC 2027 is worth referring to the context of the
case. Relevant para 18 of the said judgment is reproduced below :-
"..............it is well established that it is the accused who
were last seen with the deceased specially in the
circumstances when there is nothing on record to show that
they parted from the accused and since then no activity of
the deceased can be traced and their dead bodies were
recovered later on. It is a settled legal position that the law
presumes that it is the person, who was last seen with the
deceased, would have killed the deceased and the burden
to rebut the same lies on the accused to prove that they had
departed. Undoubtedly, the last seen theory is an important
event in the chain of circumstances that would completely
establish and/or could point to the guilt of the accused with
some certainty. However, this evidence alone can't
discharge the burden of establishing the guilt of accused
beyond reasonable doubt and requires corroboration."
30. Actually, it is the duty of prosecution to prove the case beyond
reasonable doubt only then, the explanations on behalf of appellants may
be required. In view of the aforesaid legal propositions, the testimony of
the witnesses Rakesh (PW-1) and Dilip (PW-3), the son of deceased
cannot be relied without finding concrete corroboration by oral and
medical testimony of the case, which is not available on record. On these
circumstances, the prosecution case, when adjudicated on the touch
stone of totality of facts and circumstances, does not crop up the
unqualified and unreserved satisfaction indispensably required to enter
into a finding of guilt against the accused persons.
31. In Kaliram Vs. State of Himachal Pradesh, AIR 1973 SCC 2773,
Hon'ble Full Bench of Supreme Court observed as under :-
"Another golden thread which runs through the
web of the administration of justice in criminal
cases is that if two views are possible on the
evidence adduced in the case one pointing to
the guilt of the accused and the other to his
innocence, the view which is favourable to the
accused should be adopted....."
32. Further, it is well settled by catena of cases that suspicion
howsoever strong cannot take the place of proof. An accused is
presumed to be innocent unless proven guilty beyond reasonable doubt.
In Rajkumar Singh @ Raju @ Batya Vs. State of Rajasthan, 2013
LawSuit (SC) 408, this principle is further reiterated by Hon'ble
Supreme Court in following extract :-
"17. Suspicion, however grave it may be, cannot
take the place of proof, and there is a large
difference between something that 'may be'
proved and 'will be proved'. In a criminal case,
suspicion no matter how strong, cannot and must
not be permitted to take place of proof."
33. In the conspectus of aforesaid deliberations and cumulative
analysis of the evidence available on record, this Court comes to the
conclusion that the Prosecution measurably failed to prove beyond the
touchstone of 'beyond reasonable doubts' that accused persons had
committed culpable homicide not amounting to murder of deceased
Manoharlal. Therefore, the appellants deserve to be acquitted from the
charge of offence punishable under Section 304(Part-II) read with
Section 149 of IPC.
34. In the wake of the aforesaid analysis, the findings of the learned
trial Court regarding conviction and sentencing of the appellants under
Section 304 (Part-II) read with Section 149 of IPC are found perverse
and deserve to be set aside. In the result thereof, the present appeal
preferred by the appellants is hereby allowed and thereby, having set
aside the impugned judgment, the appellants are acquitted from the
charge of the offence punishable under Section 304 (part-II) read with
Section 149 of IPC.
35. The appellants are on bail, hence, their bail bond and surety stand
discharged.
36. The appellants are entitled to receive back the fine amount
deposited by them before the learned trial Court.
37. A copy of this judgment be sent to the concerned trial Court
alongwith record for information and necessary compliance.
38. The order of the learned trial Court regarding disposal of the
seized property stands confirmed.
39. With the aforesaid, the appeal is allowed and disposed of.
(PREM NARAYAN SINGH)
JUDGE
Vindesh
