Madhya Pradesh High Court
Ghanshyam vs State Of M.P. on 21 July, 2025
Author: Avanindra Kumar Singh
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:32904
1 CRA-534-1996
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 21st OF JULY, 2025
CRIMINAL APPEAL No. 534 of 1996
GHANSHYAM
Versus
STATE OF M.P.
Appearance:
Shri Jagat Kumar Dehariya - Amicus Curiae.
Shri Yash Soni - Deputy Advocate General and Shri Ajay Tamrakar, Government
Advocate for the respondent/State.
ORDER
Per: Justice Avanindra Kumar Singh
This appeal was finally heard on 10.7.2025. This jail appeal has been
filed by appellant-Ghanshyam who has spent 9 years 1 day in jail custody in
this case being aggrieved by the judgment dated 24.8.1995 passed in
Sessions Trial No.64/1992 [State of M.P. through P.S.Tirodi, Tahsil
Waraseoni, District Balaghat Vs. Ghanshyam and three others] by learned
First Sessions Judge, Balaghat, by which, appellant-Ghanshyam has been
convicted under section 302 read with 149 of I.P.C. instead of charge of
offence under section 302 of IPC and has been sentenced to life
imprisonment.
2. Co-accused Mahadeo and Ashok were acquitted of the charge
under section 302 r/w 149 of IPC by giving them benefit of doubt. Co-
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accused Gopi was convicted under section 323 IPC instead of section 302
read with 149 of IPC. All the accused have been acquitted of the charge
under section 147, 323 of IPC.
3. As per prosecution on 14.1.1992 in village Bonakatta deceased-
Pooranlal was sitting by the side of Egg Stall of Laxman. At that time,
Mahadeo, Kailash, Basant, Ghanshyam came armed with lathi and abused &
assaulted deceased-Pooranlal. Ramprasad, Subhash, Hiraman & Yashwant,
came to intervene but they were also assaulted. All four persons were
injured. The seriously injured (deceased) Pooranlal was taken to the Hospital
where he died. Complainant-Hiraman PW1 lodged FIR Crime No.14/1992
(Exibit-P/1). After completing entire investigation charge-sheet was filed
against 6 persons. The accused denied the charges and sought trial. The
prosecution led evidence. After evidence of prosecution in examination
under Section 313 Cr.P.C appellant-Ghanshyam submitted that he is
innocent.
4. The prosecution examined Hiraman (PW.1), Subhash (PW.2),
Vijay (PW.3), Ramprasad (PW.4), Anand (PW.5), Ramkishore (PW.6),
Hillichand (PW.7), Chhaganlal (PW.8), Ganpat (PW.9), Dr.Ramjit Singh
(PW.10), Kadir (PW.11), Dr.Sanjay Dabadghav (PW.12), Dr.Laxmikant
Tamade (PW.13) and Dr.Sanjay Shukla (PW.14).
5. The prosecution exhibited documents FIR (Ex.P/1), notices u/s
175 Cr.P.C. Ex.P/2, ' naksha panchayatnama' Ex.P/3, seizure memo from
Heeraman (Ex.P/4), memo of Basant under section 27 of Evidence Act
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Ex.P.5, similarly memorandum of Gopi Ex.P/6, memo of appellant
(Ghanshyam) Ex.P/7, memorandum of Mahadeo (Ex.P/8), Memorandum of
Kailash (Ex.P/9), memo of Ashok (Ex.P/10), seizure memo of wooden
'Ubhari' from Basant as Ex.P/11, seizure memo of wooden 'ubhari' from
Gopi as Ex.P/12, seizure memo of 'Ubhari' from Ghanshaym as Ex.P/13,
seizure memo of Ubhari from Mahadeo Exhibit-P/14, seizure memo of
Ubhari from Kailash Ex.P/15, seizure memo of wooden ubhari from Ashok
as Ex.P/16, Death intimation of Pooranlal (Ex.P/17), Marg intimation
(Ex.P/18), spot map (Ex.P/19), application for postmortem Ex.P/20 and
report of postmortem Ex.P/30A, duty certificate (Ex.P/21), Khulasa
certificate (Ex.P/22), supradnama of dead body of deceased (Ex.P/23), query
reports (Ex.P/24 & P/25), query reports (Ex.P/26, P/26A, P/27, P/27A, P/28,
P/29 & P/29A), Panchnama (Ex.P/30), Memo to S.P.Balaghat with opinion
and list of articles (Ex.P/31) and Memo of serological and chemical with list
of articles (Ex.P/32).
6. Defence examined Mohd.Ismail (DW.1), Premlal (DW.2),
Dr.Sharad Sahu (DW.3) and Dr.Smt.U.S.Vasnik (DW.4). The defence filed
statements of Subhash as Ex.D/1, Vijay as Ex.D/2, Ramprasad as (Ex.D/3),
Anand Ex.D/4, Hiraman as Ex.D/5, medical reports of Gopi Ex.D/6,
Ghanshyam Ex.D/7, Ashok Ex.D/8 and Kailash Ex.D/9.
7. First Information Report (Exhibit-P/1) was lodged against total
five persons, namely, Ghanshyam, Kailash, Mahadeo, Gopi and Basant.
After investigation charge-sheet was filed against six persons. Out of which,
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during trial Basant expired on 25.121994 and, therefore, trial was terminated
against him and Kailash was found to be juvenile on 22.07.1995 and
accordingly, his matter was directed to be sent to the Juvenile Court and four
persons were put to trial and judgment dated 24.8.1995 was passed by the
trial Court.
8. As per appellant's jail appeal he is innocent. He has filed jail
appeal but as counsel on behalf of the appellant did not appear therefore to
do justice which is pertaining to year 1996, Shri Jagat Kumar Dehariya was
appointed as Amicus Curiae .
9. Learned Amicus Curiae submitted that appellant is innocent.
Prosecution has failed to prove the charges beyond reasonable doubt. It is
further pointed that as per prosecution case on 06.2.1992 the Superintendent
of Police, Balaghat vide letter No.72/92 had sent blood stained towel and two
vests ('baniyan') of deceased-Pooran which were seized from complainant-
Hiraman and one wooden 'Ubhari' of bullock cart stating that it carried blood
stains of human origin. But earlier in this typed letter name of Kailash was
mentioned but thereafter by cutting name of Kailash, the name of appellant-
Ghanshyam has been mentioned by hand but there is no initial on this
cutting. It is further pointed out that vide seizure memo (Exhibit-P/12) a
wooden 'Ubhari' was seized from Gopi and vide Exhibit-P/13 a wooden
'Ubhari' was seized from appellant-Ghanshyam. In this seizure memo
(Exhibit-P/13) it is mentioned that in centre there is red spot. Therefore,
when it was not mentioned in the seizure memo (Exhibit-P/13) that there
were spots like human blood then how in letter No.72/92 dated 06.2.1992 it
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was mentioned that there were spots of human blood origin. Therefore,
investigation is either tainted and unfair or was in the hands of incompetent
police team.
10. It is further submitted that as per F.S.L. report (Exhibit-P/31) a
wooden article-A seized from appellant-Ghanshyam no blood has been
found. It is submitted that although in F.I.R. (Exhibit-P/1) complainant-
Hiraman PW1 named total five persons but he in his court statement dated
04.8.1992 in paragraph 11 of the cross-examination has mentioned that he
had lodged report only against four persons, namely, Ghanshyam, Gopi,
Kailash, Basant. He does not know how names of Mahadeo and Ashok crept
therein. Similarly, he has not given any statement to Police against Mahadeo
and Ashok. Therefore, learned Amicus Curiae submitted that this witness is
adopting pick and choose policy, therefore, he is not reliable witness and
hence, Court should discard his evidence. It is further submitted by learned
Amicus Curiae that PW.10 -Dr.Ramjit Singh Sisodiya in paragraphs 4 & 5
has stated that on 05.2.1992 he examined three sealed wooden 'Ubhari' and
all three were having blood like spot, therefore, he had advised for chemical
examination. He was also asked in paragraph 6 whether from the seized
wooden sticks/Ubhari injuries in the body of the deceased could have been
caused and he had replied that it is not possible to say whether injuries on the
body of deceased was caused by the 'Ubhari' wooden sticks. In paragraph 10
this witness has further stated that injuries received by deceased-Pooranlal
could have been caused by such type of wooden sticks. Therefore, it is
submitted that while in paragraph 6 this witness has stated that it was not
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possible to state whether injury on the body of the deceased Pooranlal could
not have been caused by three sticks produced for inspection but in the same
breath on the same day in paragraph 10 he has stated that injuries to
deceased-Pooran could have been caused by type of the sticks seized. Thus,
statement of this witness is contradictory on material point of weapon of
assault. It is further submitted that when doctor (PW.10) opined that all the
three wooden sticks should be sent for chemical examination then why Police
choose to send only one stick for chemical examination by Letter No.72/92
dated 06.2.1992.
11. It is further submitted that PW.13-Dr.Laxmikant Tamde in
paragraph 2 stated that on 15.1.1991 (it appears that it is typographical error
as it should have been 15.2.1992) he had examined Subhash s/o Jeevan PW2
and found injuries in his body as mentioned in Exhibit-P/27. On the same
day he examined Ramprasad PW4 and found injuries in the body as
mentioned in Exhibit-P/28A on 15.1.1991 (it should have been 15.1.1992),
he also examined Yashwant and found injuries as mentioned in report
(Exhibit-P/29A). In paragraph 7 of cross-examination this witness has stated
that injuries to Subhash could have been caused due to falling on hard
surface. Regarding Yashwant, it is stated that injuries he had on the inner
side of right leg could not have been caused by falling but other injuries
could have been caused on account of falling on hard surface. In paragraph 8
this witness has stated that except injury no.3 to Ramprasad rest injuries
could be caused due to fall on hard surface, injury no.3 to Ramprasad is not
self inflicted. On the basis of aforesaid submissions learned Amicus Curiae
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prays for acquittal of appellant-Ghanshyam.
12. On the other hand, learned Government Advocate for the
respondent/State submitted that Defence Witness-Mohd.Ismail D.W.1
produced by defence in paragraph 2 stated that he has not seen the incident
and also submits that prosecution has proved its case beyond reasonable
doubt. Hence, prayed for dismissal of appeal but fairly submitted that no
appeal has been filed against judgment of the trial Court for acquitting
Ashok & Mahadeo and no appeal has been filed for enhancement of sentence
to accused-Gopi.
13. Defence Witness-Premlal D.W.2 has stated that on account of
same incident Hirmani Sarpanch and Vijay were charged with section 307 of
IPC and trial is going on. On the other hand learned Government Advocate
Shri Ajay Tamrakar has stated that regarding the same incident Ghanshyam -
appellant had filed a complaint which was registered as Crime No.15/92
R.T.No.138/92 under section 294 of IPC, 506, 323, 147, 148 & 506-B of
IPC and the accused persons therein were acquitted by the learned JMFC,
Waraseoni, District Balaghat on 23.9.1996.
14. Considered the arguments and perused the record. Prosecution
has to prove its case beyond reasonable doubt. In Criminal Appeal
No.2446/2005 [Hari Narayan Vs. State of M.P.] Hon'ble Single Judge of this
High Court in paragraph 18 of judgment dated 17.1.2024 regarding reading
of un-exhibited documents of prosecution held as under:-
"18. It is well established principle of law that if an un-
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exhibited document of prosecution is in favour of the
accused, then it can be read in his favour but an un-
exhibited document of prosecution cannot be read against
the accused. Although the photocopies of bed head ticket
of the deceased are available on record as un-exhibited
documents, but unfortunately, this Court cannot look into
the same."
15. Therefore, if we read letter of Police dated 06.2.1992 bearing
No.72/92, which was sent to forensic science laboratory for examination of
seized materials it is seen that investigation has not acted in fair manner.
When doctor (PW-10) stated that he had recommended for sending three
wooden sticks for chemical examination as they had blood like spots then
why prosecution choose to send only one wooden stick (Ubhari) by letter
No.72/1992, in which, there was cutting without initial regarding the name of
accused from whom seized is not clear. Even otherwise, the report is not
against appellant-Ghanshyam, therefore, fair investigation is lacking in the
case under appeal.
16. Similarly, prosecution main witness PW.1-Hiraman who has
lodged FIR (Exhibit-P/1) has adopted pick and choose policy in Court.
Therefore, his evidence is not wholly reliable. When investigation is not fair
and when all wooden sticks were not sent for chemical examination and
prime witness-PW.1 (Hirmani) is adopting pick and choose policy and when
there were more than one accused in this case, it is not possible to say with
certainty as to which accused person or persons gave fatal blows by which
death of the deceased Pooranlal was caused.
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17. In Balaram Vs. State of M.P. , 2023 Livelaw (SC) 980 Hon'ble
Supreme Court has held that there are three types of witnesses. If the witness
is wholly reliable, there is no difficulty inasmuch as relying on even the
solitary testimony of such a witness conviction could be based. Again there
is no difficulty in the case of wholly unreliable witnesses inasmuch as
his/her testimony is to be totally discarded. It is only in the case of third
category of witnesses which is partly reliable and partly unreliable that the
Court faces the difficulty. The Court is required to separate the chaff from
the grain to find out the true genesis of the incident.
18. In case of Yogesh Singh Vs. Mahabeer Singh and others, (2017)
11 SC 195 Hon'ble Supreme Court in paragraph 43 has held that in case of
inconsistency between oral evidence and medical evidence, the evidentiary
value of medical evidence is only corroborative and not conclusive and
hence, in case of conflict between oral evidence and medical evidence, the
former is to be preferred unless the medical evidence completely rules the
oral evidence.
19. I n Mahendra Singh and others Vs. State of M.P. [Criminal
Appeal No.764/2021] vide judgment dated 03.6.2022 Hon'ble Supreme
Court in paragraph 12 regarding witnesses which are neither wholly reliable
nor wholly unreliable referring to judgment in Vadivelu Thevar Vs. The
State of Madras, (1957) SCR 981 has held in paragraph 13 that it is this
category of witness that the court has to be circumspect and has to look for
corroboration in material particulars by reliable testimony direct or
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circumstantial.
20. Hiraman (PW.1) in paragraph 2 of his statement has deposed in
Court that all accused persons were assaulting Pooranlal by 'lathi'. In
paragraph 3 he stated that by 'lathi' means ' Ubhari' which is used in
'Gadde'. In paragraph 4 he stated that Pooran had four injuries on head. In
paragraph 6 this witness has stated that after incident Pooranlal told him that
Gopi, Kailash, Ghanshyam, Mahadeo and Basant had hit him. This witness
further deposed in paragraph 6 that while taking Pooranlal to Police Station
he was unconscious therefore, in examination-in-chief itself at one place
PW.1 (Hiraman) is showing himself as an eye witness whereas in paragraph
6 he states that Pooranlal told him the name of assailants. Therefore if
Hiraman had seen the incident then why he is saying that Pooranlal told him
about the incident and also states that Pooranlal was unconscious while he
was being taken by him to the Police Station. Therefore, examination-in-
chief of this witness is self contradictory. Even otherwise, this is a witness
who after mentioning the names of 05 persons in FIR (Ex.P/1) states in
paragraph 11 of court statement that he has mentioned only 4 names to
police.
21. PW.2-Subhash has stated in examination in chief that incident is
of about night 08 p.m. he saw accused assaulted Pooranlal with Lathi and in
paragraph 7 of cross-examination he says that he has seen the incident from
about 08-10 feet. He also admitted that there is counter report against the
complainant party in this case under sections 147, 148, 294, 506-B and 323
of IPC. PW-3 Vijay says that he saw all accused assaulted Pooranlal with
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Lathi in paragraph 3 has admitted that regarding the same incident a case is
also pending against him. He does not know how Ashok, Kailash and
Ghanshyam sustained injuries. PW.-4 Ramprasad in paragraph 2 of
examination-in-chief has stated that when accused persons were assaulting
Pooranlal with Lathi then no person was present there . The first blow was
given by Ghanshaym on the head of Pooranlal. Second blow was given by
Ashok on head of Pooranlal and third blow was given by Mahadeo on the
left temple and fourth blow was given by Kailash. While this assault was
going one he ran away to the house of Mahesh Sarpanch but in paragraph 13
of cross-examination he states that he cannot say which person gave how
many blows by 'lathi'. Therefore, presence of this witness is doubtful.
22. PW.5-Anand in paragraph 2 of examination-in-chief submits
that Santosh had called him and told that Sarpanch is calling him and when
he went there to the house of Sarpanch, there Pooranlal, Hiraman and Manik
were sitting. Blood was oozing out from the head of Pooranlal and when he
asked Pooranlal as to what had happened, then he replied that Gopi,
Ghanshyam, Mahadeo, Kailash, Ashok and Basant had assaulted him with
'lathi' then he took Pooranlal, Hiraman and Nila on his motorcycle to Tirodi
Police Station. Therefore, this person is not the eye witness.
23. PW.11-Kadir Head Constable in cross-examination in Paragraph
19 has admitted that regarding the same incident there is case pending
against Pooranlal. On perusal of the record and judgment is seen that there
was a counter case Crime No.15/92 R.T.No.138/92 against Hiraman and
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others and therefore the learned trial Court should have ensured that case
was committed to Sessions Court under section 323 of Cr.P.C. and both
matters should have been disposed of by the same Court on the same date
but by separate judgments but that has not been done, therefore, prejudice is
caused to the appellant/accused. Considering the statements of defence
witnesses and documents of defence is one thing but disposal of both cases
i.e. main case and cross-case by the same court on the same day is something
different. In State of M.P. Vs. Mishrilal , (2003) 9 SCC 426 Hon'ble Supreme
Court held thus:-
"8........It would have been just, fair and proper to decide both
the cases together by the same court in view of the guidelines
devised by this Court in Nathi Lal case. The cross-cases should be
tried together by the same court irrespective of the nature of the
offence involved. The rational behind this is to be avoid the
conflicting judgments over the same incident because if cross-
cases are allowed to be tried by two courts separately there is
likelihood of conflicting judgments. ........."
24. In Criminal M.C. No.3006/2023 [Laxmidhar and others Vs.
State of Orissa and others] Hon'ble Orissa High Cout by judgment dated
08.9.2023 has referred to the judgment of Sudhir Vs. State of M.P. , (2001) 2
SCC 688:-
"8. It is a salutary practice, when two criminal cases
relate to the same incident, they are tried and disposed of by
the same court by pronouncing judgments on the same day.
Such two different versions of the same incident resulting in
two criminal cases are compendiously called "case and
counter case" by some High Courts and "cross cases" by
some other High Courts....."
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9. xxxx
10. xxxx
11. xxxx
12.......where one of the two cases (relating to the same
incident) is charge-sheeted or complained of, involves
offences or offence exclusively triable by a Court of
Sessions, but none of the offences involved in the other case
is exclusively triable by the Sessions Court. The magistrate
before whom the former case reaches has no escape from
committing the case to the Sessions Court as provided in
Section 209 of the Code. .......................Though, the next
case cannot be committed in accordance with Section 209 of
the Code, the magistrate has, nevertheless, power to commit
the case to the court of Sessions, albeit none of the offences
involved therein is exclusively triable by the Sessions Court.
Section 323 is incorporated in the Code to meet similar cases
also. That section read thus:-
"323. If, in any inquiry into an offence or a trial before a
Magistrate, it appears to him at any stage of the proceedings
before signing the judgment that the case is one which ought
to be tried by the Court of Session, he shall commit it to that
court under the provisions hereinbefore contained and
thereupon the provisions of ChapterXVIII shall apply to the
commitment so made."
25. Although Doctor (PW.14-Dr.Sanjay Shukla) who has conducted
the postmortem has opined that Pooranlal died due to injury on head but
F.S.L. report (Ex.P/31) shows that wooden 'Ubhari' seized from Ghanshyam
does not have human blood.
26. The learned trial Court has acquitted 2 persons giving them
benefit of doubt and one person has been convicted only under section 323
of IPC. When prosecution case was against four persons while case of one
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person was sent to Juvenile Court and one person died during trial, then
question is whether prosecution or complainant had filed an appeal for
enhancement of conviction and sentence of Gopi and whether the
prosecution filed an appeal against acquittal of Mahadev and Ashok because
looking to the prosecution case evidence of eye witnesses there is hardly any
scope, in the considered view of this Court it splitting of evidence regarding
two different accused Mahadev, Gopi and Ashok.
27. Hon'ble Supreme Court in the case of Yograni Vs. State by the
Inspector of Police [Criminal Appeal No.477/2017 judgment dated
23.9.2024]
in paragraph 10 relied on the judgment of Javed Shaukat Ali Qureshi Vs.
State of Gujarat, 2023 LiveLaw SC 782, wherein in paragraph 15, it was
held:-
"15. When there is similar or identical evidence of eyewitnesses
against two accused by ascribing them the same or similar role, the
Court cannot convict one accused and acquit the other. In such a
case, the cases of both the accused will be governed by the
principle of parity. This principles means that the Criminal Court
should decide like cases alike, and in such cases, the Court cannot
make a distinction between the two accused, which will amount to
discrimination."
Therefore, on the above principle Hon'ble Supreme Court acquitted
the appellant-accused No.2 in Yograni case (supra) and on the basis of parity
in Javed Shaukat Ali (supra) also by Hon'ble Supreme Court accused No.2-
Amzad Khan was acquitted.
28. To sum up, in this case appeal of appellant-Ghanshyam has to
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be allowed for the following reasons:-
(i) Prosecution has failed to send all seized wooden 'Ubharis' for
chemical examination;
(ii) Wooden 'Ubhari' seized from appellant-Ghanshyam, which was sent
for chemical examination did not have human blood, as per FSL report
(Exhibit-P/32);
(iii) First Information Report has been lodged by Hiraman (PW.1) against
05 persons. He had signed the FIR but in Court statement he has adopted
pick and choose policy, therefore, this witness is not reliable.
(iv) There is no other material evidence, direct or circumstantial, to co-
relate the fatal injury or injuries on the head of deceased-Pooranlal by
appellant-Ghanshyam only.
(v) There was counter case against complainant party but while appellant
was put to trial alongwith other accused persons, who had filed cross case
that was tried by learned JMFC, therefore, there was non-compliance of
section 323 of Cr.P.C.
(vi) In the facts and circumstances of this case this appellate Court finds
that there was hardly any difference regarding evidence of prosecution
against appellant-Ghanshyam and against accused-Gopi and two persons,
Mahadeo & Ashok. While Gopi was convicted under section 323 IPC and
Mahadeo & Ashok have been acquitted by the trial Court and hence, in the
light of judgment of Supreme Court in the case of Yograni (supra) the
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appellant is also entitled for acquittal.
(vii) State has not filed any appeal against the persons who have been
acquitted, although evidence was same. Therefore, if same set of evidence
was sufficient for acquittal of co-accused Mahadeo and Ashok, then on the
basis of parity, Ghanshyam is also entitled for acquittal.
29. Accordingly, appeal of appellant-Ghanshyam is allowed. The
impugned judgment of conviction is set aside. Appellant is acquitted of the
charges levelled under section 302 read with section 149 of IPC. His bail
bonds are discharged. Let properties seized in this case be destroyed as per
paragraph 66 of the judgment of the trial Court.
30. Let a copy of this judgment alongwith original record of the trial
Court be sent to the concerned Court.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
RM
