Madhya Pradesh High Court
Raisingh vs The State Of M.P. on 25 June, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:15463
1 CRA-409-2002
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
CRIMINAL APPEAL No. 409 of 2002
RAISINGH AND OTHERS
Versus
THE STATE OF M.P.
Appearance:
Shri Khuzema Kapadia - learned counsel for the appellants.
Shri H.S. Rathore - Govt. Advocate for the respondent/State.
HEARD ON : 01.05.2025
DELIVERED ON : 25.06.2025
JUDGMENT
Per: Justice Gajendra Singh
This Criminal Appeal under section 374 (2) of the Cr.P.C, 1973 is
preferred challenging the conviction under section 148, 302 r/w section 149
of the IPC, section 323 r/w section 149 of the IPC and sentenced to 1 month
imprisonment, Life Imprisonment with fine of Rs.5,000/- with default
stipulation of 2 months imprisonment and 1 month imprisonment with fine of
Rs.100/- with 15 days additional simple imprisonment to be run concurrently
vide judgment dated 24.01.2002 in Sessions Case No.112/2001 by the
Additional Session Judge, Sardarpur, District Dhar.
2. During the pendency of this appeal, the appellant no.3 Balu S/o
Chanu Bheel expired on 29.10.2016 and the appeal on behalf of appellant
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no.3 Balu has been dismissed as abated vide order dated 27.02.2017. Thus.
the present appeal is being disposed of in relation to the appellant no.1 Rai
Singh S/o Ratan Singh and appellant no.2 Har Singh S/o Gul Singh Bheel.
3. The case of prosecution before the trial Court was that on
15.10.2000 at about 12:00 PM deceased Nahar Singh and his nephew Mehar
Singh (PW-4) were returning from village Dedli and near the house of Rai
Singh, both the appellants alongwith Balu (dead), Jhinjhu (absconded) and
Bhur Singh (absconded) were standing. On that, appellant no.1 Rai Singh
made the allegations against deceased Nahar Singh and Mehar Singh that
they have eaten their hen and asked about the same. At that time, Balu was
armed with faliya, Rai Singh was armed with stone, Jhinjhu was armed with
gofan, Har Singh was armed with stone and Har Singh assaulted Nahar Singh
on the head by pelting stone using gofan, due to which, Nahar Singh fell
down and Mehar Singh (PW-4) reached to school faliya, make an alarm and
returned to scene of crime with Phool Singh Patel. The accused persons
again caused the injuries to Mehar Singh (PW-4) through stones. Phool
Singh Patel also sustained the injury. When the villagers assembled then all
the 5 persons ran away into fields. Nahar Singh died on the spot and Mehan
Singh (PW-4) lodged the F.I.R. at village Amjhera, District Dhar at 15:20 of
15.10.2020. On that, Crime No.245/2000 was registered against the 5
persons. The autopsy of the body of Nahar Singh was conducted. Mehar
Singh (PW-4) and Phool Singh (PW-9) were medically examined by Dr.
A.K. Choudhary (PW-5) at Primary Health Centre (PHC) Amjhera. The
report was submitted reflected the accused Jhinjhu and Bhur Singh as
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3 CRA-409-2002
absconding. The trial against the three persons namely Rai Singh, Balu and
Har Singh was proceeded for the charges under Section 148, 302 r/w section
149 and section 323 r/w section 149 of the IPC.
4. The appellants abjured their guild and claimed for trial.
5. To bring home the guilt, the prosecution examined as many as 11
witnesses in examination under Section 313 of the Cr.P.C., 1973. The
appellants either denied or expressed ignorance regarding facts and
circumstances appeared against them in prosecution evidence. They did not
adduce any evidence in their defence.
6. Appreciating the evidence, the trial Court found that Mehar Singh
(PW-4) as reliable and discarded the defence of the appellants that Nahar
Singh died due to the injuries caused by the fall in drunken state and
concluded that 5 persons including the appellants formed unlawful assembly
and at that time they were armed with stone and gufan that falls within the
category of "dangerous weapon" and injuries were caused to Nahar Singh
(deceased), Mehar Singh (PW-4) and Phool Singh Patel (PW-9) in
furtherance of common object of unlawful assembly and Nahar Singh died
due to injuries and convicted and sentenced as per para 1 of the judgment.
7. Challenging the conviction and sentence, this appeal has been
preferred on the ground that there is material contradiction regarding the
narration of time of the incident. There is a material contradiction in the
narration of use of the arm. The witness Juvaan Singh (PW-7) presented as
eye-witness has not supported the prosecution version. The presence of
Mehar Singh (PW-4) at the scene of crime is not proved. The prosecution
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witnesses namely Ditiya (PW-3), Juvaan Singh (PW-7) and Phool Singh
(PW-9) have not supported the prosecution version. The injuries found on
the body of Mehar Singh (PW-4) also not proved to be caused in the incident
and he cannot be termed as injured eye-witness. The appellants presence at
the scene of crime was natural as they are the resident of locality, hence,
their presence cannot be termed as forming unlawful assembly. The trial
Court have not appreciated the testimony of witnesses declared as hostile.
The examination of the appellants has not been recorded properly. The
dispute with Mehar Singh (PW-4) was of petty nature as mentioned in the
F.I.R. and that cannot be a motive to cause the murder of Nahar Singh.
Heard.
8. Learned counsel for the respondent/State have supported the
conviction as well as sentence submitting that the trial Court has properly
appreciated the testimony of witnesses. Hence, no case for interference is
made out and appeal be dismissed.
Perused the record.
9. The trial Court has recorded the conviction of the appellants on
relying the testimony of Mehar Singh (PW-4) and found the corroboration of
his testimony by F.I.R. (Exhibit-P/8).
10. Now, we are appreciating the testimony of Mehar Singh (PW-4)
and this witness was examined on 26.09.2001 and has stated that one year
ago at about 12:00 PM he and his uncle Nahar Singh were returning from
Dedli to village Faliya. When they reached near house of Rai Singh then they
met with Rai Singh (appellant no.1) and Jhinjhu (absconded). The present
NEUTRAL CITATION NO. 2025:MPHC-IND:15463
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appellant no.2 Har Singh, Balu (died on 29.10.2016) and Bhur Singh
(absconded) were also present there. Rai Singh asked about the hen alleging
that they have eaten their hen and hurled the abusive language. Jhinjhu
assaulted with stone and others also pelted stones and Jhinjhu assaulted
Nahar Singh by pelting stone that hit Nahar Singh in the right side of head
and he fell down and thereafter all assaulted Nahar Sinagh. Mehar Singh
(PW-4) and Phool Singh Patel (PW-9) returned to the place of incident then
all the persons again pelted stones and he and Phool Singh sustained injuries.
11. Phool Singh examined as PW-9 have not supported the
prosecution story and he denied that he sustained any injury. He stated that
Mehar Singh came to call him but when he reached the place of incident then
he found that Nahar Singh was laying there.
Now we come to the reliability of statement of Mehar Singh (PW-4).
12. In cross-examination he stated that his house is situated in Dam
Faliya of village Dudhiya and appellant no.1 Rai Singh and all the accused
persons also resides in Dam Faliya of village Dudhiya. He was constructing
another house in school faliya of village Dudhiya. The deceased Nahar Singh
was the resident of village Bediya but he usually come to his house and was
working in his under construction house at school faliya of village Dudhiya.
On the date of incident, Mehar Singh (PW-4) and Nahar Singh (deceased)
had gone to the house of Babu at village Dedhli to borrow money. He did not
lend money to Nahar Singh and on the way from Dedhli to Dudhiya village
they stayed for a while at the house of Phool Singh and reached the place of
incident at 09:00 AM and in para 16 of his statement, he stated that he cannot
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identify who pelted the stone that hit him because stone hit him when he was
running from the place of incident and hit him from the back. He specifically
mentioned that the stone that caused injury to Nahar Singh was pelted by
Jhinjhu, who is the son of present appellant no.1 Rai Singh. He specifically
denied that the injury was caused by Har Singh (present appellant no.2).
13. Para 25 of this witness mentions that prior to the incident Rai
Singh had gone for labour work out of village and only 3-4 days prior to the
incident Rai Singh was returned to his home and there was no conversation
of the witness with Rai Singh. This witness has admitted that prior to this
incident there was no dispute with Rai Singh.
14. The incident occurred at Dam Faliya of village Dudhiya where the
house of both the appellants are situated, there presence was at the place of
incident is natural. There is no prior dispute. Who pelted stone that hit Nahar
Singh could not be seen and injury to Nahar Singh was caused by Jhinjhu.
The fact that present appellants are also participated in causing the injuries to
Nahar Singh is not reliable because as Nahar Singh sustained injury by the
stone of Jhinjhu but Nahar Singh fell down and Mehar Singh ran away. He
did not even saw the person who caused the injury to him and when he
returned with Phool Singh then theory of pelting stones by present appellant
is not supported by Phool Singh.
15. The role of present appellants in causing the injuries to deceased
Nahar Singh or Mehar Singh is not proved. The presence of the present
appellants at the place of incident is natural. There is no evidence that their
presence was as a member of unlawful assembly or any unlawful assembly
NEUTRAL CITATION NO. 2025:MPHC-IND:15463
7 CRA-409-2002
was formed or they shared common intention with Jhinjhu (absconded).
Accordingly, the present appellant no.1 Rai Singh and appellant no.2 Har
Singh cannot be made liable on the theory of constructive or joint liability
with the aid of Section 149 or 34 of the IPC. Thus, the findings of the trial
Court in recording the liability of present appellants with the aid of Section
149 cannot be sustained. When they are not proved member of unlawful
assembly then on the strength of recovery of one gofan from Har Singh vide
Exhibit-P/8, both the appellants cannot be held liable under Section 148 of
the IPC and gofan & faliya recovered from Rai Singh vide Exhibit-P/3 on
18.10.2000.
16. Accordingly, the Criminal Appeal succeed and it is allowed and
the conviction of the appellant No.1 Rai Singh & appellant No.2 Har Singh
under Section 302 r/w section 149, 323 r/w 149 and section 148 of the IPC is
set aside. Consequently, their sentence is also set aside. Appellants are
acquitted from the charges of Section 302 r/w section 149, 323 r/w 149 and
section 148 of the IPC.
17. Let a copy of this judgment along with the record be remitted back
to the concerned trial Court for information and necessary compliance.
Certified copy as per rules.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
VS
