Madhya Pradesh High Court
Nihal (Dismissed As Withdrawn) vs The State Of Madhya Pradesh on 4 October, 2024
Author: Anuradha Shukla
Bench: Sushrut Arvind Dharmadhikari, Anuradha Shukla
NEUTRAL CITATION NO. 2024:MPHC-JBP:50685
1 CRA-2039-2010
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 4 th OF OCTOBER, 2024
CRIMINAL APPEAL No. 2039 of 2010
NIHAL (DISMISSED AS WITHDRAWN) AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Vishal V. R. Daniel - Amicus Curiae for the appellants.
Shri Ajay Tamrakar - Government Advocate for the State.
Heard on : 26.09.2024
Pronounced on: 04.10.2024
JUDGMENT
Per: Justice Smt. Anuradha Shukla
This criminal appeal was originally preferred by seven appellants, but
appellant no.3 Malkhan died during pendency of appeal without his legal
representatives being substituted as party, therefore, the appeal was
dismissed as abated with regard to appellant no.3. On 28.9.2022 appellant
no.1 Bahadur, on 21.11.2023 appellant no.2 Nihal and on 12.04.2024
appellants no.5, 6 and 7 namely Gajraj, Babu Singh and Gandharva Singh
respectively requested for withdrawal of appeal hence, appeal was dismissed
qua these five appellants. Accordingly, this appeal is to be decided qua
appellant no.4 Durag Singh alone, who was convicted on 23.09.2010 by First
Additional Sessions Judge, Khurai, District Sagar for the offence of Sections
PRASHANT
SHRIVASTAVA
2024.10.05 11:11
NEUTRAL CITATION NO. 2024:MPHC-JBP:50685
2 CRA-2039-2010
148, 302/149 (two counts), 326/149 (two counts), 324/149, 332/149, 353/149
and 427/149 of IPC and was sentenced to undergo R.I. for 1 year, life
imprisonment with fine of Rs.1000/-, R.I. for 3 years with fine of Rs.500/-,
R.I. for 1 year, R.I. for 1 year, R.I. for 1 year and R.I. for 6 months
respectively with default stipulations. All the sentences were directed to run
concurrently.
2. Brief facts of the prosecution case are that the property of Ganesh Lodhi
and Than Singh was acquired by the Government and they were allotted a
land in village Padmara. This allotted land belonging to the Government was
in illegal possession of Bahadur Lodhi (original appellant no.1), his son
Roop Singh Lodhi and one Virendra Shrivastava. Police help was asked for
to deliver the possession to the displaced farmers on 8.10.2005. Two
constables Pramod Kumar and Rakshpal Singh Yadav reached on the spot
along with Revenue Inspector T. P. Shrivastava, Patwari Hameer Singh,
displaced farmers Ganesh Singh Lodhi and Jagbhan, S/o Than Singh, and his
relative Narayan Singh; jeep driver Mahendra Chouhan, Ramesh Pateriya,
Anand Rawat, Ramdayal Ahirwar, etc. were also accompanying them. The
land in question was measured and its possession was delivered to Ganesh
Lodhi and Jagbhan Lodhi after preparing a memo about delivery of
possession; the land was being ploughed by Ganesh Lodhi but this act incited
Bahadur Lodhi, Malkhan Lodhi, Durag Singh, Mangal Singh, Virendra
Kumar and Babu Singh; they all reached on spot armed with deadly weapons
and attacked the revenue party, police personnel and other persons present
on the spot; number of persons sustained injuries and damage was also
PRASHANT
SHRIVASTAVA
2024.10.05 11:11
NEUTRAL CITATION NO. 2024:MPHC-JBP:50685
3 CRA-2039-2010
caused to the jeep; on account of injuries Ganesh Singh and Jagbhan died,
while Hameer Singh and Narayan were seriously injured.
3. Dehati Nalishi was recorded on the date of incident and on next day the
FIR at Crime No.252/2005 was registered. The postmortem of deceased
persons was ensued and dying declarations of seriously injured victims were
recorded. After completing the investigation, charge-sheet was filed, but
appellant Durag Singh surrendered at a later stage and joined the ongoing
trial. After conclusion of trial, impugned judgment was passed holding total
seven persons guilty and awarding sentence to them.
4. The grounds raised in this criminal appeal are that the judgment of
conviction and sentence is bad in law and procedure as it is based upon no
evidence and is contrary to the material available on record; the prosecution
witnesses were not at all reliable as their testimony was full of material
contradictions, omissions and improvements; most of the witnesses failed to
support the prosecution case and the conviction is based upon testimony of
only few interested witnesses; there is no evidence that appellant had caused
any injury to any victim; even the deaths of Ganesh and Jagbhan were not
proved by reliable evidence; on similar set of evidence, the other persons
were acquitted by the trial Court itself while the appellant was convicted; the
trial Court failed to appreciate that on account of some enmity, the appellant
was implicated in the case. Based on these grounds, a request has been made
to allow the appeal and acquit appellant no.4 Durag Singh.
5. State has opposed the present appeal claiming that no interference in the
finding of conviction or quantum of sentence is warranted.
PRASHANT
SHRIVASTAVA
2024.10.05 11:11
NEUTRAL CITATION NO. 2024:MPHC-JBP:50685
4 CRA-2039-2010
6. This criminal appeal has been argued only on behalf of appellant no.4
Durag Singh for the reasons discussed in first para. Admittedly, Dura g Singh
is presently in custody. The order-sheets of the trial court reveal that at the
time of filing charge-sheet, he was absconding and a permanent warrant of
arrest was issued against him. His arrest was ensured and he was brought
before the court on 7.6.2007. From this date he joined i n the trial with co-
accused.
7. The story of prosecution was unfolded in the dehati nalishi by Patwari
Hameer Singh, who was not only present on the spot but was also injured in
the incident. Incidentally, the name of appellant no.4 Durag Singh was
mentioned in this dehati nalishi, Ex.P-45, as being a member of team of
assailants claiming that Durag Singh was holding a sickle (hasia) at the time
of assault b u t no specific act was ascribed to him. Name of t h e person
assaulted by Durag Singh has also been not mentioned specifically in this
document.
8. Patwari Hameer Singh, the informant, was examined before the trial court
as P.W.23. According to him, only three persons, namely Bahadur, Malkhan
Singh and Raghuveer Singh, arrived on the spot and all of them physically
assaulted witness Hameer Singh and Revenue Inspector T. P. Shrivastava.
Although he claimed that there were 10-15 other persons but in para 8 of his
testimony, he denied the involvement of appellant Durag Singh in this
assault. He was confronted on it by prosecution for the role of appellant as
disclosed in his dehati nalishi, Ex.P-45, but he categorically denied to have
made any incriminating allegations in dehati nalishi against this appellant.
PRASHANT
SHRIVASTAVA
2024.10.05 11:11
NEUTRAL CITATION NO. 2024:MPHC-JBP:50685
5 CRA-2039-2010
He remained consistent on this version throughout his statement. Even when
he was directly confronted about the role of appellant Durag Singh in para 20
he claimed that he did not see appellant Durag Singh there with any weapon.
He further clarified the position of appellant Durag Singh a s possession-
holder of the neighbouring land. Although he claimed this possession to be
illegal, but during cross-examination he admitted that no notice was ever
given for ensuring removal of illegal possession.
9. This discussion of facts on the basis of dehati nalishi and testimony of
informant Hameer Singh creates a significant doubt on the prosecution story
about the involvement of appellant Durag Singh in the incident of physical
assault and it also gives a point of view justifying his natural presence on the
spot for being the possession-holder of the neighbouring land.
10. According to the prosecution, this incident occurred when the proceeding
of handing over the possession of disputed land to Ganesh and Jagbhan was
complete and according to dehati nalishi (Ex.P-45) prior to it, there was
illegal possession of co-accused Bahadur Singh, Roop Singh and Virendra
Shrivastava on this disputed land. It is very reasonable to assume that the
proceeding of handing over the possession to Ganesh and Jagbhan would
have enraged Bahadur Singh, his sons and Virendra Shrivastava, the illegal
possession holder, but there is no evidence to show how appellant no.4
Durag Singh felt aggrieved by this act of Revenue Officers. His close
relationship with illegal possession holders has not at all been disclosed.
Thus, on one hand, dehati nalishi (Ex.P-45) has failed to describe the specific
role of appellant no.4 Durag Singh in the criminal act and, on the other hand,
no motive has been assigned in the entire prosecution evidence which would
PRASHANT
SHRIVASTAVA
2024.10.05 11:11
NEUTRAL CITATION NO. 2024:MPHC-JBP:50685
6 CRA-2039-2010
have incited appellant no.4 Durag Singh to attack the public officers and to
get involved in a crime of physical assault resulting into a case of double
murder and injuries to others.
11. The other witness relied upon in this case to show the involvement of
appellant no.4 Durag Singh in the incident, is Revenue Inspector T. P.
Shrivastava, who was an injured witness. This witness was examined on
21.12.2006 and it has already been mentioned that appellant Durag Singh
joined the trial on 7.6.2007. Section 273 of Cr.P.C. makes it incumbent upon
the trial Court to record the statement of a prosecution witness only in the
presence of accused (or his counsel when permitted). Whatever was stated
by witness T. P. Shrivastava (P.W.29) on 21.12.2006 against appellant no.4
Durag Singh is, therefore, not admissible in evidence. After arrest of Durag
Singh this witness was re-examined on 20.02.2008, but this time his
examination-in-chief was limited to only one line wherein he stated that his
dying declaration (Ex.P-77) was recorded in Sagar Hospital. This reflects
that witness T. P. Shrivastava (P.W.29) failed to make any allegation about
the involvement of appellant Durag Singh in the crime during his legally
recorded examination-in-chief as against appellant Durag Singh.
12. This witness was cross-examined by appellant Durag Singh and in para
19 he merely claimed the presence of Durag Singh on the scene at the time of
incident. The role played by appellant Durag Singh in the crime has not been
described in details either in this para or anywhere else. The witness was also
confronted on the role of appellant in the crime vis-a-vis his dying
declaration which is absolutely silent on the involvement of appellant in the
PRASHANT
SHRIVASTAVA
2024.10.05 11:11
NEUTRAL CITATION NO. 2024:MPHC-JBP:50685
7 CRA-2039-2010
crime.
13. The question that comes up here is, if the witness was not aware of the
name and identity of appellant no.4 at the time of making dying declaration,
then the proceeding of identification at the time of investigation was
supposed to be logically and legally undertaken. The entire statement of this
witness is silent on how and when he came to know the name and the
identity of this appellant.
14. The statements of other material witnesses, namely Rakshpal Singh
Yadav (P.W.4), Pramod Kumar (P.W.21) and Narayan Singh Thakur
(P.W.27) on the issue of identification have the same colour. Their testimony
suggests that initially they were not aware about the name and identity of
appellant Durag Singh and became aware of this identity through other
persons and that too only after the incident.
15. The foregoing discussion brings to the conclusion that four important
witnesses, namely Rakshpal Singh Yadav, Pramod Kumar, Narayan Singh
Thakur and T. P. Shrivastava, have testified regarding the alleged role of
appellant Durag Singh only on the basis of information obtained from other
persons and no test identification parade was arranged to enable these
witnesses to identify appellant Durag Singh during investigation. It may
again be repeated that Patwari Hameer Singh, who had the dehati nalishi
written, specifically denied the role of appellant Durag Singh in the crime.
Thus, the statements of these witnesses go on to show that they were not
knowing the identity of appellant Durag Singh from before the incident and
investigation to identify the appellant as one of the assailants.
PRASHANT
SHRIVASTAVA
2024.10.05 11:11
NEUTRAL CITATION NO. 2024:MPHC-JBP:50685
8 CRA-2039-2010
16. In the case of Prakash Chand Sogani v. The State of Rajasthan (Criminal
Appeal No.92/1956, decided by the Apex Court on January 15, 1957) it was
observed that:
"the absence of test identification in all cases is not fatal and if the
accused person is well-known by sight it would be waste of time
to put him up for identification. Of course if the prosecution fails
to hold an identification on the plea that the witnesses already
knew the accused well and it transpires in the course of the trial
that the witnesses did not know the accused previously, the
prosecution would run the risk of losing its case. It seems to us
that if there is any doubt in the matter the prosecution should hold
an identification parade..........."
17. In the judgment of Jadunath Singh and another v. The State of U. P. 1970
(3) SCC 518 it was observed that merely for the reason that accused was
named, there was no justification for avoiding the test identification.
18. In the present case, all the five material witnesses referred above were
residents of a different village and failed to make any specific averment that
they were knowing the appellant from before, it was therefore legally
necessary to hold a test identification parade. It was although held in Kanta
Prasad v. Delhi Administration, SCR (1958) 1218 that "failure to hold an
identification parade would not make the evidence of identification in court,
inadmissible, but the weight to be attached to such identification would be a
matter for the court to consider." Here, not only the evidence on test
identification parade is absent, the role of appellant in the crime has not been
specifically mentioned in the dehati nalishi and also the dying declaration.
PRASHANT
SHRIVASTAVA
2024.10.05 11:11
NEUTRAL CITATION NO. 2024:MPHC-JBP:50685
9 CRA-2039-2010
Further, the appellant was possession-holder of neighbouring land, therefore
his presence on the spot cannot be viewed suspiciously unless his active role
in crime is proved.
19. Different spot maps prepared in the case, namely Exs.P-41, P-72, P-73
and P-76, reveal that in none of them the place of incident was shown to be
the land under possession of appellant no.4. The entire incident occurred at a
place which was in illegal possession of Bahadur Singh Lodhi. This fact
itself puts a big question mark on the existence of motive or intention on the
part of appellant no.4 for getting involved in the crime. His interest or stakes
were not being affected by the proceedings of revenue officers.
Consequently, the theory of entertaining common object, joining an unlawful
assembly or use of violence by the appellant against those who were not
acting against his interest is shattered in entirety.
20. Prosecution has heavily burdened this case with testimony of as many as
44 prosecution witnesses but if we go through the testimony of witnesses to
the facts namely, Ramesh Kumar Pateriya (P.W.1), Anand Kumar Rawat
(P.W.2), Ramdayal, S/o Hari @ Hariya (P.W.3), Ramdayal, S/o Parsadi
(P.W.5), Tulsi Ram (P.W.6), Hariya (P.W.7), Neeraj Prajapati (P.W.8),
Prahlad (P.W.9), Kesar Rai (P.W.10), Neelesh (P.W.12), Veer Singh
(P.W.13), Durjan Singh (P.W.18), Mahendra Chouhan (P.W.22), Janak
Singh (P.W.25) and Bhaiyalal (P.W.31) it is lucid and vivid that none of
them has supported the prosecution case. Incidentally, rest of the witnesses
examined in the case are either related to medical evidence or the
investigation proceedings. Since the c a s e in hand was based on direct
PRASHANT
SHRIVASTAVA
2024.10.05 11:11
NEUTRAL CITATION NO. 2024:MPHC-JBP:50685
10 CRA-2039-2010
evidence, therefore it was required to be proved by the witnesses to the facts.
It has already been discussed that the material witnesses examined by
prosecution on facts namely, Rakshpal Singh Yadav (P.W.4), Pramod Kumar
(P.W.21), Hameer Singh (P.W.23), Narayan Singh Thakur (P.W.27) and T.
P. Shrivastava (P.W.29) have not been able to prove the involvement of
appellant no.4 Durag Singh in the alleged crime.
21. According to prosecution, a sickle (hasia) was seized from appellant no.4
Durag Singh which he h a d used for causing injuries to the victims. The
seizure memo of that weapon is Ex.P-75 and this seizure does not mention
presence of any marks having semblance to blood stains on the seized article.
Further, this weapon was never sent for forensic examination as evident from
draft prepared by S.P. for sending seized articles to FSL. That draft is Ex.P-
69 and the FSL report is Ex.P-70. Therefore, even the circumstantial
evidence gives no clue to incriminate appellant no.4 Durag Singh in the
alleged crime.
22. Learned counsel for respondent-State has relied upon the decision of
Sanjay Khanderao Wadane v . State of Maharashtra (2017) 11 SCC 842. In
that case, a long standing dispute between the deceased and accused persons
was established and it was also proved that, in furtherance of common object
of unlawful assembly, fatal weapons were used, the presence of accused at
the place of occurrence was clearly established, and the testimony of eye-
witness was not only trustworthy and corroborative in nature but was also
supported by medical evidence, therefore, the Apex Court held that minor
contradictions in evidence were insignificant. A ccordingly, conviction for
PRASHANT
SHRIVASTAVA
2024.10.05 11:11
NEUTRAL CITATION NO. 2024:MPHC-JBP:50685
11 CRA-2039-2010
murder was confirmed. In the case on hand, the picture is strikingly contrary.
Here, prosecution has failed to prove any kind of dispute of appellant no.4
Durag Singh with the members of complainant party, prosecution has also
failed in proving that the appellant no.4 Durag Singh was a member of any
unlawful assembly and further the witnesses examined in this case have not
been found trustworthy to indict the appellant in the alleged crime, therefore,
cited case law cannot help the prosecution.
23. Summarizing the discussion, we are of the opinion that the prosecution
has not been able to successfully establish its case against appellant no.4
Durag Singh, therefore he deserves to be acquitted.
24. The appeal is accordingly allowed qua appellant n o.4 Durag Singh, who
is currently in custody. Therefore, he be released. The fine amount, if any,
deposited by the appellant be refunded to him.
25. Let a copy of this judgment along with record be sent to the trial Court
for information and necessary compliance. Another copy be immediately
sent to the concerned jail authorities with a direction to release him from
custody forthwith, if not required in any other crime.
26. This Bench appreciates the valuable assistance extended by Shri Vishal
V. R. Daniel, learned Amicus Curiae.
(SUSHRUT ARVIND DHARMADHIKARI) (ANURADHA SHUKLA)
JUDGE JUDGE
ps
PRASHANT
SHRIVASTAVA
2024.10.05 11:11
