Madhya Pradesh High Court
Sanju @ Tota vs The State Of Madhya Pradesh on 8 April, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
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1 CRA-578-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 8 th OF APRIL, 2025
CRIMINAL APPEAL No. 578 of 2018
SANJU @ TOTA AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Mr. Rajesh Awasthi and Ms. Seema Parihar - Advocate for appellants.
Mr. Nitin Gupta - Government Advocate for State.
JUDGMENT
Per: Justice Devnarayan Mishra
With the consent of the parties, the case is heard finally at motion
hearing stage.
This appeal has been filed being aggrieved with the judgment dated
29.04.2017 passed by the learned Second Additional Sessions Judge,
Jabalpur in S.T. No.470/2015 by which, the appellants have been convicted
for the offence punishable under Section 302 of the Indian Penal Code and
sentenced to undergo R.I. for Life Imprisonment with fine amount of
Rs.10,000/- and under Section 450 of the Indian Penal Code and sentenced
to undergo R.I. for 07 years with fine amount of Rs.5,000/- with default
stipulations each.
2. In nutshell, the prosecution case before the trial Court was that the
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deceased Premlal was the resident of Gupteshwar, Jabalpur and was running
a shop in the name of Jeevan. On 03.04.2015, he was sitting in his shop, at
about 08:00 am, Sanju @ Tota and one person who is son of Munna reached
in shop armed with iron rod. The son of Kallu falwala was also there and all
the three persons started abusing him and entered into his shop. Sanju @
Tota after abusing him, said to him that his ganja was caught due to
him/deceased and both of them started assaulting him with iron rods and the
son of Kallu Phalwala also started assaulting him with the hands and fists. He
had cried for help, Ramunna Sahu and Rakesh Chakravarti came there and
rescued him and the accused persons threatened him while they were going
from the spot. In the injured condition, the victim/deceased was brought to
police station Gorakhpur, then he lodged the F.I.R. that was registered as a
Crime No.176 of 2015 for the offence punishable under Sections 294, 323,
324 and 452, 506 read with 34 of the Indian Penal Code. The deceased was
sent for medical examination. Medical examination was conducted by duty
Dr. Monika Kapoor (PW-5) in Jabalpur Medical Hospital. During treatment,
the deceased died and autopsy was conducted on 03.04.2015 by Dr. Virendra
Kumar Maravi (PW-7). During investigation, the spot map was prepared.
The appellants were arrested and from their possession, an iron rod, iron pipe
and motorcycle were recovered. The case was submitted before the Judicial
Magistrate First Class, Jabalpur and on commitment, transfer before the trial
Court.
3. The trial Court framed the charges under Sections 120-B, 450, 302,
294 and 506 of the Indian Penal Code against the appellants. Appellants and
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the co-accused persons abjured the guilt and prayed for trial. The trial Court
recorded the prosecution evidence and examined the appellants under section
313 of the Code of Criminal Procedure. The appellant No.2 Chandan has
taken the defence that he has been falsely implicated in the case and at the
time of offence, he was not present on the spot but was working in
Dhanwantri Nagar Bhukamp Colony as a labourer.
4. The trial Court after hearing both the parties, passed the impugned
judgment and acquitted Sanju Chaurasiya, son of Keshav Prasad Chourasiya
and convicted these appellants and passed the sentence as stated in paragraph
no.1, hence, this appeal.
5. Learned counsel appearing on behalf of the appellants has submitted
that the appellants have been falsely implicated in the case. In the FIR, the
deceased himself has not named the accused Chandan Ahirwar and only
stated that the son of Munna Mistri was involved in the offence and in the
prosecution case itself, there are at least two Munna, one is the witness of
spot map (exhibit-P/1) and another is Munna Sahu (PW-4). This name is so
common and on that basis, it cannot be decided that the appellants were
involved in the case and by defence witness, appellant No.2 Chandan has
clearly proved that at the time of incident, he was not present on the spot.
6. Learned counsel for appellants has also submitted that two Sanju
were involved in the case. One Sanju has been acquitted by the trial Court
and another is the appellant Sanju @ Tota who has been convicted by the
trial Court though there was no reason to differentiate the act of this Sanju @
Tota. The prosecution has utterly failed to prove his case. But the trial Court
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has not properly appreciated the evidence available on record and has
convicted the appellants.
7. In alternate, learned counsel for the appellants has further submitted
that no injury was caused on the vital part of the body of the deceased. Thus,
it is clear that they were not having any intention to cause the death of the
deceased and injuries were caused in the hand and leg only and for that, the
appellants can be convicted for the offence punishable under Section 325 of
the Indian Penal Code.
8. To support his contention, learned counsel for the appellants has
drawn the attention of this Court towards the statement of Dr. Virendra
Kumar Maravi (PW-7) who conducted the post-mortem and has stated that in
the external examination, he found that all the injuries were simple in nature
and within one or two days, the injuries could have been heal. Deceased was
an old and infirm person and he has completed his average age and the
fractures suffered by the victim could have been cured by the simple
treatment and also admitted that if the deceased has got proper treatment, he
would have been saved. Thus, the learned counsel for the appellants has
submitted that the conviction of the appellants under Section 302 of the
Indian Penal Code is against the law. Hence, appeal be allowed and
appellants be released as they have already suffered the imprisonment of
more than nine years.
9. Mr. Nitin Gupta, learned Government Advocate has submitted that
the deceased himself has lodged the F.I.R. and his statement was recorded
and he died within 24 hours after recording the statement, thus, the statement
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and the F.I.R. are dying declarations recorded by the Police Officer and in
clear terms, he has stated that role of the appellants. The Police has arrested
the right persons and this defence was not taken before the trial Court that the
appellant Chandan Ahirwar is not a son of Munnalal Mistri as his father's
name is Munnalal Ahirwar but the appellant has taken the defence of plea of
alibi, who failed. Trial Court has already acquitted the co-accused Sanju
Chourasiya, by giving the benefit of doubt and well reasoned judgment has
been passed by the learned trial Court. Hence, no interference in the
conviction is required and the appeal be dismissed.
10. We have heard the parties and perused the record.
11. Dr. Monika Kapoor (PW-5) has stated that on 03.04.2015,
Constable No.2045 Sachin brought the injured Premlal Sahu, s/o Chhotelal
Sahu for MLC and in treatment of injuries and examination, she found (1) a
contusion in the middle of left forearm measuring 10 x 6 cm with swelling
(2) two lacerated wounds measuring 1 x 0.5 x 0.5 cm in the left hand, it was
bleeding, (3) a contusion measuring 9 x 6 cm with swelling and pain in the
middle of the right hand (4) a lacerated wound measuring 3 x 1 x 0.2 cm in
the right elbow and the injury was bleeding, (5) lacerated wound measuring 2
x 1 x 0.2 cm in the mid of the right leg, it was bleeding (6) another contusion
in the same place (7) injured was complaining pain in the lower side of the
chest and he was feeling pain while breathing and tenderness was found. All
the injuries were caused by hard and blunt object and the deceased died
within two hours from the time of examination and as per the MLC report
(Exhibit-P/13), the victim was brought before this witness on 03.04.2015 at
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09:35 am.
12. Dr. Virendra Kumar Maravi (PW-7) has stated that on 03.04.2015
at 15:40 hours, he started the post-mortem over the dead body of Premlal
Sahu and on examination, he found that (1) there was a stitched wound in left
arm, (2) an abrasion in the left forearm near elbow joint measuring 0.5 x 8
cm, (3) a contusion present in the left forearm measuring 6 x 12 cm, (4) Two
stitched wound present in the right forearm posterior part below the elbow
(5) a stitch wound present in the right forearm middle lateral part having two
stitches. (6) a contusion in the right forearm posterior aspect 9 x 7 centimeter
(7) Stitched wound in right leg two in numbers (8) a contusion present in the
right thigh outer aspect measuring 2x3 cm (9) a contusion present in the right
lateral of thorax upper part measuring 3 x 3 cm, (10) contusion present in the
right lower thorax measuring 2 x 3 cm. Rest of the organs were intact. Injury
was found in the right part of the lung. Both the lungs were pale. Liver was
ruptured and on opening the stomach, two liters blood was deposited. There
was a fracture in the tibia and fibula bones of the right leg and seventh,
eighth, ninth and tenth ribs of the right side were fractured. Deceased died
due to hemorrhagic shock.
13. In this aspect, it is clear that the injuries were caused in the hand,
leg and chest and due to injury in the chest, tibia and the fibula bones of the
right leg were fractured and four ribs were fractured and as a result, the liver
fractured and blood was deposited in the stomach and deceased died due to
shock as a result of excess bleeding.
14. Now on the point that who has caused the injury. In dying
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declaration that was recorded by S.K. Patel (PW-8) who has stated that on
03.04.2015, he was posted in police station Gorakhpur, Jabalpur as ASI and
on that date, deceased Premlal Sahu, s/o Chhotelal Sahu, R/o Kripal Chowk,
Police Station Gorakhpur came in the police station and lodged the F.I.R
against Sanju @ Tota, s/o Munna Mistri, Sanju, s/o Kallu Phalwala regarding
causing the injury and abusing him. On his complaint, he lodged the F.I.R. as
a crime number 176 of 2015, the FIR bears his signature and in "B to B" part
bears the signature of the deceased/complainant. He has further submitted
that he sent the deceased after filling MLC form to medical college Jabalpur
through constable.
15. This witness in the cross examination has clearly stated that the
time when the deceased visited the hospital, he was fully conscious and he
has not named Sanjay Chaurasiya but has clearly stated the name of Sanju
Tota, s/o Munna Mistri and Sanju s/o Kallu Phalwale. In the cross-
examination, he has also admitted that the deceased Premlal Sahu has not
mentioned that accused persons have assaulted him with an intention to
cause his death and that is why, he registered the offence under Section 324
of the Indian Penal Code. He has also admitted that as per the statement of
Premlal, he visited the police station after half an hour of the incident. Thus,
no cloud of suspicion has been brought on the F.I.R (Exhibit-P/17) and in
Exhibit-P/17, the name of Sanju @ Tota, s/o Kallu Mistri is clearly
mentioned. In the statement Exhibit-P/19, the names of these two persons
with the co-accused is clearly mentioned, who has been acquitted by the trial
Court.
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16. Witness Gulab Sahu (PW-1), brother of the deceased has stated
that on 03.04.2015 at 08:00 am, he was going for darshan at river Narmada
near Gwarighat and when he reached near Gupteshwar Mandir, the accused
persons were assaulting his brother Premlal and he parked his car in a side of
the road, he cried loudly, at that time, his nephew Abhishek Sahu (PW-3)
reached there. Rajesh Chakrawarti also reached there. All the accused
persons ran away from the spot and Sanju Chourasiya putting his brother in
his scooty went towards Shakti Nagar, then he by putting his brother in the
car, visited Police Station - Gorakhpur where his brother has lodged the
F.I.R. against three accused persons after that he carried his brother to
Medical College, Jabalpur and admitted him there. X-ray examination was
conducted. In paragraph no.6, he has stated that he could not rescue his
brother as when he saw the accused persons, they ran away. He denied the
suggestion that his brother died due to heart attack.
17. Witness Abhishek Sahu (PW-3) has stated that on the date of
incident at about 8-8:15 am, he was in his house along with his wife. He was
in bathroom and his wife was preparing tea, he heard the cry of his father, he
came out from the bathroom, he saw that Sanju @ Tota riding on his vehicle,
ran away. Pradeep was driving the vehicle and Chandan was sitting as a
pillion rider. Sanju Chourasiya was standing near a temple. His uncle (PW-1)
was going to Gwarighat, seeing them, they had ran away. Pradeep was
assaulting his father by hands and fists, Sanju Tota was assaulting his father
by iron rod, Chandan was also having a rod, Sanju Chourasiya was looking
after.
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18. This witness has stated that the reason of dispute is that Sanju Tota
was stating that his contraband Ganja has been caught by the deceased and
then the accused persons were ran away from the spot. His uncle putting his
father in his car brought to Jabalpur Hospital where his father died after 1-1.5
hours. This witness in paragraph no.6 has stated that he saw the accused
persons assaulting and running away together. When the quarrel was started,
he was in his bathroom. Reason of acquaintance with the appellant Sanju
Tota, it has been stated that he has mortgaged his motorcycle to Sanju Tota
in lieu of Rs.16,000/- that was taken by him on credit but stated that he had
not seen by which weapon, the appellants were assaulting to his father but
has further stated that Chandan was assaulting his father with rod and Sanju
Tota was also assaulting with rod. He has denied the suggestion that the
appellant Sanju Tota has been falsely implicated in the case due to previous
enmity. Dying declaration recorded by the deceased in the form of F.I.R. and
statement under Section 161 of the Code of Criminal Procedure were
supported by his brother Gulab Sahu (PW-1) and son Abhishek Sahu (PW-
3).
18. Inspector, H.R Pandey (PW-9) has recovered the blood stained soil
from the spot. Blood stained clothes of the deceased and an iron rod was
recovered from Sanju Tota. His shirt, pant were recovered from the
possession and were sent through (Exhibit-P/20) to FSL and as per the FSL
report (Exhibit-P/22), the rod has been marked as Article-E and the pipe has
been marked as Article-J were examined by the FSL. In FSL examination,
the blood stained was found in the rod recovered from the possession of the
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accused Sanju Tota but no blood was found in the pipe recovered from the
possession of Chandan Ahirwar. But in the shirt of the appellant Chandan
Ahirwar and in the pant of the appellant Sanju Tota, the blood stain has been
found though the group of the blood was not determined but it is
corroborative piece of evidence.
19. Thus, from the above discussion, it is clear that the accused
persons with the furtherance of common intention had assaulted the deceased
Prem Lal Sahu on 03.04.2015 at 08:00 am and as a result, he suffered the
grievous injuries and died on the same day at 13:00 hours.
20. On the point that whether the appellants are liable for the murder
or culpable homicide not amounting to murder and on the point of intention,
i.e. gathered from the act of the party. In this case, as per the prosecution,
minimum two persons were involved and the injuries as stated by Dr.
Monika Kapoor (PW-5) and supported by Dr. Virendra Kumar Maravi (PW-
7), it is clear that the injuries were caused in the hands and legs and in chest.
No injury was caused on the head. The articles that were used are the iron
pipe and iron rod and the deceased was 63 years old and he died due to
multiple fractures particularly in the ribs and rupturing of the liver.
21. From the medical evidence and statement of prosecution witnesses,
it has not been brought on the record that the deceased was suffering from
any infirmity and injuries were caused in the hand, leg and chest, no injury
was caused on the head by the rod. From these facts, the intention can be
gathered that they wanted to cause the grievous injury to deceased and by
that, they were knowing that it was possible that they were having the
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knowledge that the injury may cause the death of deceased.
22. Looking to the above facts, there was no intention to cause the
death of the deceased and thus, ingredient of Section 300 of the Indian Penal
Code is not proved and it is also not proved that the appellants were having
knowledge that by that injuries, the deceased will surely die or the injury is
sufficient to cause the death of a person in ordinary course of the nature. In
the light of statement of Dr. Virendra Kumar Maravi (PW-7) and the act was
not so imminent that in all circumstances, it was probable that the death of
the deceased will be caused. Thus, the act comes under Clause III of Section
299 of the Indian Penal Code and offence of Section 299 of the Indian Penal
Code is that where there is no intention to cause the death, the offence is
punishable with the Section 304 (Part-II) of the Indian Penal Code.
23. Thus, from the above discussions, the conviction of the appellants
under Section 302 of the Indian Penal Code is quashed and they are
convicted for the offence punishable under Sections 450 and 304 Part-II of
the Indian Penal Code and the offence punishable under Section 450 of the
Indian Penal Code passed by the trial Court is affirmed and for the offence
punishable under Section 304 Part-II of the Indian Penal Code, the appellants
shall undergo to R.I. for 10 years with fine amount of Rs.10,000/- in default
of depositing the fine amount, each appellants shall further undergo R.I. of
03 months and 06 months respectively.
24. With the above modification, the appeal is partly allowed.
25. Supersession warrant be prepared and send to concerned jail
authority.
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26. Jail sentence of the appellants shall run concurrently and in default
of depositing the fine amount, the sentence shall run consecutively.
27. The case property be disposed of as per the order of the trial Court.
28. With the copy of the judgment, the record of the trial Court be sent
back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
julie
