Madhya Pradesh High Court
Collector vs The State Of Madhya Pradesh on 4 April, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:16512
1 CRA-1161-2020
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
CRIMINAL APPEAL No. 1161 of 2020
RAMDEEN
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Jafar Khan - Advocate for the appellant.
Shri Akhilendra Singh - Government Advocate for the respondent-State.
WITH
CRIMINAL APPEAL No. 3638 of 2020
COLLECTOR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Ashish Kurmi - Advocate for the appellant.
Shri Akhilendra Singh - Government Advocate for the respondent-State.
Reserved on : 19.03.2025
Pronounced on : 04.04.2025
These Criminal Appeals having been heard and reserved for orders,
coming on for pronouncement on this day, Justice Devnarayan
Mishra pronounced the following:
JUDGMENT
Per: Justice Devnarayan Mishra
With the consent of learned counsel for the parties, the appeals are
finally heard.
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Since these appeals are arising out of the same crime number and
judgment, therefore, these appeals are heard analogously and are being
decided by a common judgment.
These Criminal Appeals under Section 374(2) of the Cr.P.C. have been
preferred by the appellants being aggrieved with the judgment of conviction
and sentence dated 17.12.2019 passed by Additional Sessions Judge, Banda,
District-Sagar in S.T. No.541 of 2013 whereby the appellant-Ramdeen has
been convicted for the offence punishable under Section 302/34 of the Indian
Penal Code and sentenced to undergo for Life imprisonment with fine
amount of Rs.5,000/- and appellant-Collector has been convicted for the
offence punishable under Section 302/34 of the Indian Penal Code and
sentenced to undergo for Life imprisonment with fine amount of Rs.15,000/-
with default stipulations.
2. The prosecution case in brief before the trial Court was that on
19.08.2013, the deceased-Kamal Yadav was in his house. At that time, the
appellant-Ramdeen reached and called deceased. They alongwith appellant-
Collector went towards the outside of the village. At the evening time, the
appellant alongwith other acquitted co-accused persons were seen near the
pond of the village. The witness Charlie (PW-4) informed to Mahesh (PW-3)
that these appellants alongwith other acquitted co-accused persons were
assaulting his brother. As it was raining at night, hence, his brother Mahesh
(PW-3) visited the spot in the morning and found that the deceased was lying
dead. The information was sent to the concerned Police Station-Banda. Sub
Inspector P.L. Chouhan (PW-15) visited the spot where the complainant
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Mahesh (PW-3) lodged an FIR which was recorded as Dehati Nalishi (Ex.P-
3) and Dehati Merg Intimation (Ex.P-4). The inquest report was prepared and
the dead body of the deceased was sent for autopsy. The statements of the
witnesses were recorded. After that, the appellants alongwith other acquitted
co-accused persons were arrested. Lathi and axe were recovered from their
possession. The cloths of the deceased, soil recovered from the spot and
Lathi recovered from the possession of the accused persons were sent for the
FSL examination. The charge sheet was submitted before Judicial Magistrate
First Class, Banda. After commitment and transfer, the case was submitted to
the trial Court.
3. During the trial, the co-accused Premsingh s/o Kalyan Singh
expired. Hence, the case was abated against him.
4. The trial Court framed and read over the charges under Sections
148, 302 in alternate 302/149 of IPC. The appellants abjured the guilt and
prayed for trial. The trial Court recorded the statements of the prosecution
witnesses and examined the accused persons. The accused persons had not
adduced any defence witnesses. The trial Court passed the judgment after
hearing both the parties by which the trial Court acquitted rest of the co-
accused persons and convicted the appellants as stated in paragraph 1 of the
impugned judgment. Hence, these appeals are filed.
5. Shri Jafar Khan, learned counsel for the appellant-Ramdeen has
submitted that the trial Court has passed the judgment without marshalling
and appreciating the evidence. The trial Court has wrongly relied on the
statements of interested witnesses, as independent witnesses had not
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supported the prosecution case. The witness Charlie (PW-4), who is the star
witness, had not supported the prosecution and the witnesses, who had
supported the prosecution case, are not named in the Dehati Nalishi. Sitarani
(PW-18) who is the sister-in-law of the deceased had stated that the deceased
went alongwith the appellants at 01:00 pm. The deceased was found dead in
the next morning. Hence, the theory of the last seen is not applicable in this
case. The appellants are co-villager and they are not stranger. Hence, the
theory of last seen does not help the prosecution. The prosecution has not
failed to produce any independent eye-witness.
6. Learned counsel for the appellant has also submitted that as per the
post-mortem report, only two grievous injuries were found and both the
injuries suffered by the victim were on the hands. No injury was caused on
the vital part of the body. Hence, it is clear that the appellants were not
having any intention to murder the deceased and submitted that as per the
principle laid down by Hon'ble Apex Court in the case of Anbazhagan v. the
State represented by the Inspector of Police passed in Criminal Appeal
No.2043 of 2023 dated 20 July, 2023, Nankaunoo v. State of Uttar
Pradesh passed by Hon'ble Apex Court in Criminal Appeal No.46 of 2016
dated 19 January, 2016 and Gendalal & others v. The State of Madhya
Pradesh (2006) 4 MPLJ 201 passed by this Court, the offence, if proved,
comes under Section 325 of IPC or Section 304 Part-II of IPC. Looking to
the detention period of the appellants, the appellants be released as they have
already suffered the substantial jail sentence.
7. Shri Ashish Kurmi, learned counsel for the appellant-Collector has
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submitted that there is no eye-witness and the conduct of prosecution
witnesses is highly unnatural. The witness Mahesh (PW-3) is the real brother
of the deceased. As per the prosecution witness, Charlie (PW-4) told him in
the evening that the appellants were assaulting his brother but he had not
taken help of villagers and visited the spot. Neither he informed the Police
nor the villagers. On the next day, he had lodged the FIR directly. It is not
possible for a real brother to wait whole night. Thus, initiation of the
prosecution story is doubtful.
8. Learned counsel for the appellant has further submitted that the
deceased's wife Jantobai @ Sapna (PW-5) had stated that at noon, the
appellants-Collector and Ramdeen visited her house and carried the
deceased. After that, her husband did not return but she had not narrated this
incident to any other person. Neither she searched her husband nor lodged
any report in the Police Station. This conduct is also highly doubtful.
9. Shri Ashish Kurmi, learned counsel for the appellant has further
submitted that the trial Court itself had not believed the statement of Sunita
(PW-10) and father of the deceased Natthu (PW-7) as there was a
contradiction in the statement of Sunita (PW-10) and Natthu (PW-7) as
contradictory in the Police statement is recorded during investigation. On the
statements of interested witnesses, the trial Court had convicted the
appellants. Hence, the judgment of conviction and sentence by the trial Court
be set aside and the appellants be acquitted. Learned counsel for the
appellant in alternate has submitted that only two injuries were caused to the
victim and the victim had not suffered any injuries on the vital part of the
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body. Hence, if the appellants' act is proved, they are liable to punish only
for the offence punishable under Section 304 of IPC.
10. Learned counsel for the State has submitted that the trial Court has
elaborately discussed the evidence and already given the benefit of doubt to
the three accused persons. After due appreciation, the trial Court has
convicted the appellants. No interference is called for. Hence, these appeals
be dismissed.
11. We have heard learned counsel for the parties minutely and
perused the record.
12. The prosecution case is totally based on the last seen theory and on
the basis that the appellants carried the victim from his home and the
deceased was found dead in the next day morning.
13. On the point of injury and death of the victim, Dr. M. L. Jain (PW-
1) had stated that on 20.08.2013 when he was posted as a Medical Officer in
Community Health Center, Banda, he examined the dead body of the
deceased. His cloths were smeared with mud. On examination, he found the
injuries on the body of the deceased as under :-
(i) a lacerated punctured wound in the 1/3 part of the left upper arm
measuring 5x3 cm bone deep was found and humerus bone was come out
from the wound,
(ii) a lacerated punctured wound in the right hand measuring 4x3 cm
deep bone,
(iii) contusion in the middle part of right hand measuring 21x12 cm,
(iv) contusion in the middle part of left hand measuring 25x13 cm,
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(v) contusion in the left shoulder measuring 12x6 cm and due to this
injury, second and third metacarpal bones were fractured,
(vi) Brachial artery of the left part of the heart was punctured due to
humerus bone which pierced into that.
14. On the examination, it was found that humerus bones of both
hands were fractured and blood was deposited in the place of fracture. The
deceased died due to excessive bleeding and hemorrhagic shock. In the
cross-examination, this witness had stated that when he conducted autopsy,
no presence of smell of alcohol was found in the stomach of the deceased.
15. Thus, it is clear that the injuries were caused on the both hands and
the deceased died as brachial artery of the left part of the heart was cut due to
humerus bone pierced into it and the deceased died. No injury was found on
the vital part of the body. The deceased suffered total six injuries which were
caused by hard and blunt object. Looking to the nature of injuries that no
injuries were also caused by sharp edged weapon.
16. On the point of last seen theory, there are two sets of witnesses;
first set is the witness Jantobai @ Sapna (PW-5). She stated that she is well
acquainted with the appellants. They are resident of her village. The
deceased was her husband. On the day of incident at noon, the appellants-
Collector and Ramdeen came in her house and were calling her husband and
carried him with them. She was cooking food and came out from her house
and saw that her husband had not returned in night. She alone alongwith her
children slept in her home. In the morning, she got information that the
appellants had murdered her husband.
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17. In the cross-examination, no substantial contradiction has been
found regarding the visit of the appellants in her house and they carried her
husband alongwith them. In the same way, the witness Sitarani (PW-18),
who is the sister-in-law (Bhabhi) of the deceased, had stated that at the time
of noon, when the appellants visited the deceased's house, she was standing
on the roof of her house. The deceased's house is situated in front of her
house. Appellant-Ramdeen came in the deceased's house to call him and he
said that Collector is calling him then the deceased came out and Collector
was standing beside the deceased-Kamal's house. Appellants-Ramdeen and
Collector carried the deceased alongwith them. She got the information that
the deceased has been murdered.
18. The witness Mahesh (PW-3), who is the brother and complainant,
had stated that in the evening of the incident at 5-6 pm, he was returning
after grazing his cattle. He saw that the appellants were carrying his brother
Kamal near the pond of the village. When he asked where they are going. All
three persons replied that they are going to answer the call of nature. After
some time, Charlie (PW-4) had informed that the appellants alongwith other
co-accused persons murdered his brother by beating him.
19. On the same point, Meharbaan (PW-2) also stated that on the date
of incident, he was returning after grazing his cows to his village. The
appellants-Collector and Ramdeen met him on the way and in the morning,
he got the information that his brother has been murdered. No contradiction
has been found in the statement of this witness.
20. Khuman (PW-6) had supported the statement of this witness and
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stated that on the date of incident, he was going from village Khiriya to
village Sandhagir. The appellants alongwith other co-accused persons were
sitting and were quarreling. On the next day, he got the information that the
deceased Kamal has been murdered.
21. On the trustworthiness of these witnesses, Meharbaan (PW-2) had
stated in his statement on the point that he saw the deceased alognwith the
appellants, no contradiction has been found in the statement and on the same
point, Mahesh (PW-3) is firm in his statement and the fact is mentioned by
Mahesh (PW-3) in the opening paragraph of Dehati Nalishi (Ex.P-3) and
Dehati Merg Intimation (Ex.P-4).
22. Other set of witnesses Jagat (PW-19) and Bablu (PW-20), who are
the resident of the same village and relatives of the deceased, had stated that
they are returning towards their home after grazing their cows from the
forest when they reached near the pond of the village, the accused persons
Ramdeen, Collector and Lallu were standing alongwith the deceased and
they were consuming alcohol. Collector, Ramdeen and deceased Kamal were
sitting near the pond and also stated that in the morning, they saw that the
deceased was lying murdered.
23. Thus, from the evidence, it is clear that the appellants carried the
deceased from his home at noon and till evening, they remained alongwith
the deceased. In the morning, the deceased was found dead. The appellants
had not submitted any explanation where they left the deceased. Furthermore,
in the cross-examination of Mahesh (PW-3), it has been brought on the
record that the criminal case was registered on the report of appellant-
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Collector in which compromise was filed. A criminal case under Section 354
of IPC was also pending between the parties. It has also been brought on
record that there was quarrel regarding the relation of the deceased with
appellant-Collector's wife. The other appellant-Ramdeen was working in the
house of the appellant-Collector and there were having cordial relation with
the appellant-Collector.
24. From the statement of Abhay Shukla (PW-13), it is clear that the
incident was near the pond of the village. Thus, the statement of the
prosecution witness had supported that the deceased was seen near the pond
of the village. It is affirmed by the statement of Abhay Shukla (PW-13) who
is the village Patwari.
25. It has been brought on record that that Mahesh got the information
from Charlie (PW-4) who had not supported the prosecution case that his
brother had been murdered but he had not visited the spot and also not lodged
the FIR and informed any other persons. In the cross-examination of the
prosecution witnesses particularly witness Mahesh (PW-3), he had clearly
stated that he got the information at 08:00 pm and there were enmity with the
other villagers and he had not visited the spot. The reason he has assigned is
that the appellants were looking his activities and he was having fear of his
life. Though, this fact is not fully supported by the other witnesses that the
appellants had surrounded the house of the deceased but it is clear from the
cross-examination of witness that it was night and it was raining. This fact
had further supported by the witness that the deceased's dead body was
smeared with the mud. This fact is further supported by P.L. Chouhan (PW-
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15) in paragraph no.6 of his cross-examination that the deceased's dead body
was smeared with the mud due to rain.
26. On the next day i.e. 20.09.2013 as per P.L. Chouhan (PW-15), the
victim had directly lodged the FIR and named the appellants that the persons
who had brought the deceased from his house.
27. The Investigating Officer Rajendra Tiwari (PW-16) had stated that
the Lathis were recovered from the possession of the appellants and were
sent for FSL examination. As per the FSL Report (Ex.P-42), the blood was
found on the Lathi recovered from the possession of the appellant-Collector
(Article E). Though, the blood found on the Lathi has not been established
by the prosecution. But it is a corroborating piece of evidence. The appellant
had not submitted any explanation. The adverse inference will be drawn
against the appellant-Collector.
28. Looking to the above evidence, the trial Court has dealt with these
circumstances in his Judgment and looking to the motive that the appellant-
Collector was having previous enmity as his report was registered against the
appellants under Section 307 and 354 of IPC. It has been brought on the
record that the deceased was having illicit relation with the wife of appellant-
Collector and the other appellant being his friend has committed the offence.
29. Thus, it is clear that the appellants had in furtherance of common
intention committed the homicidal death of the deceased-Kamal.
30. We have considered the point that no injury on the vital part of the
body of the deceased was found. The injuries were caused on the hands and
as a fracture of the humerus bone caused the cut on the brachial artery and
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due to hemorrhage, the deceased died. The weapons used in the offence were
lathis and the opportunity to the appellants is a situation that goes in favour
of the appellants as no cruelty was shown.
31. In the judgment Anbazhagan (supra), the Apex Court in the
judgment has dealt with culpable homicide amounting to murder and not
amounting to murder. The observation of the Court in the relevant portion of
the judgment is as under:-
"(7) The distinction between culpable homicide (Section 299 of the IPC)
and murder (Section 300 of the IPC) has always to be carefully borne in
mind while dealing with a charge under Section 302 of the IPC. Under the
category of unlawful homicides, both, the cases of culpable homicide
amounting to murder and those not amounting to murder would fall.
Culpable homicide is not murder when the case is brought within the five
exceptions to Section 300 of the IPC. But, even though none of the said
five exceptions are pleaded or prima facie established on the evidence on
record, the prosecution must still be required under the law to bring the
case under any of the four clauses of Section 300 of the IPC to sustain the
charge of murder. If the prosecution fails to discharge this onus in
establishing any one of the four clauses of Section 300 of the IPC, namely,
1stly to 4thly, the charge of murder would not be made out and the case
may be one of culpable homicide not amounting to murder as described
under Section 299 of the IPC."
32. Furthermore, it is dealt by Hon'ble Apex Court in the case of
Nankaunoo (supra) a n d Gendalal (supra) . The fatal injury was caused to
deceased-Kamal with lathi and no injuries were caused on the vital part of
the body. Thus, it appears that the appellants were having intention to cause
the bodily injury to the deceased but from the opportunity and the
circumstances in which the offence was committed can be inferred that the
appellants were not having intention to cause the death of the deceased.
Though, they have caused the death of the deceased.
33. Thus, from the above discussion, instead of affirming the
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conviction of the appellants for the offence punishable under Section 302/34
of IPC, they are being convicted for the offence punishable under Section
304 Part II of IPC.
34. Looking to the facts and circumstances of the case, the substantial
jail sentence of the appellants is modified and ordered that the appellants
shall undergo rigorous imprisonment of 10 years with fine amount of
Rs.15,000/- each, in default of the fine amount, each appellant shall suffer
further rigorous imprisonment for six months.
35. The appellant-Collector was in custody from 23.08.2013 to
27.09.2016 and from passing judgment i.e. 17.12.2019 till today. In the same
way, the appellant-Ramdeen was in custody during trial from 23.08.2013 to
16.12.2014 and from passing the judgment i.e. 17.12.2019 till today. This
period be adjusted in the substantial jail sentence.
36. With the above modification, the appeals are partly allowed.
Supersession warrant be prepared and sent to the concerned jail authorities.
37. The case property be disposed off as per the direction of trial
Court.
38. The copy of the judgment be sent to concerned trial Court for
information and necessary action.
39. A copy of the judgment be kept in connected case.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
HK
