Madhya Pradesh High Court
Ramprasad vs The State Of M.P. on 15 May, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 15th OF MAY, 2025
CRIMINAL APPEAL No. 7177 of 2023
RAMPRASAD AND OTHERS
Versus
THE STATE OF M.P.
Appearance:
Shri Manoj Kushwaha - Advocate for appellants.
Shri Ved Prakash Tiwari - Government Advocate for State.
JUDGMENT
Per: Justice Vivek Agarwal
Learned counsel for appellants prays for withdrawal of
I.A.No.3682/2025, an application for suspension of sentence.
Accordingly, IA No.3682/2025 is dismissed as withdrawn.
With the consent of the parties, the case is heard finally at motion
hearing stage.
This appeal under Section 374(2) of the Cr.P.C. has been preferred by
the appellants being aggrieved by the judgment of conviction and sentence
passed by First Additional Sessions Judge, Panna, District - Panna in ST
No.09/2022 dated 02.05.2023 by which the appellants have been convicted
for the offence punishable under Section 302/34 of the IPC and sentenced to
undergo R.I. for life imprisonment with fine amount of Rs.1,000/- with
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default stipulations of additional R.I. for 06 months (each).
2. Learned counsel for appellants submits that as per the prosecution
story case of the prosecution is that on 01.12.2021 at about 12:00 noon IO,
ASI Kamal Singh Chandel (PW-11) had gone to CHC, Ajaygarh and lodged
a Dehatinalishi (Ex.P-1) as per the version of Sushil Kumar Lodh (PW-1)
under Section 294, 307, 506, 34 IPC. In the Dehatinalishi (Ex.P-1), it is
mentioned that complainant Sushil Kumar Lodh (PW-1) is resident of
Village - Khora. It is submitted that allegation is that all the three appellants
came to the place of the incident and on account of old rivalry in regard to
land had caused assault on the body of the deceased Indrani Lodh and due to
injury she was taken to hospital where she succumbed to the injuries as a
result of which she died and during investigation Section 302 of the IPC was
added. Investigation was completed. Charge sheet was filed. Appellants
abjured their guilt, therefore, trial was conducted and they have been
convicted as above.
3. It is submitted that they are innocent. Sushil Kumar Lodh (PW-1) is
not an eyewitness as is admitted by him in his cross examination. Ajeet
Kumar (PW-2) son of the deceased Indrani Lodh was residing outside and at
the time of the incident, he was in his in law's house at Banda, Uttar
Pradesh. Sultan Singh (PW-3) is a hearsay witness. He has stated that on
01.12.2021 at about 10:00 AM Sushil Kumar Lodh (PW-1) had called him
on phone and asked him as to whether he is at home and then had stated that
he should come to the house of Indrani Lodh at Village- Amlia where Sushil
Kumar Lodh (PW-1) was standing.
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4. Shiv Kumar Lodh (PW-4) is the husband of deceased Indrani Lodh.
He has stated that appellant Ram Prasad is his real brother. Appellant Kusma
is his sister-in-law and appellant Pappu @ Pushpendra is his nephew. He was
working as a special teacher at Government Senior Secondary School,
Bhiwani, Haryana and he was not present at the time of the incident. It is
pointed out that Dr D.P. Prajapati (PW-5) though found four injuries on the
body of the deceased Indrani Lodh but he has admitted two things, one that if
the deceased would have fallen down from stairs then such injuries could
have been sustained by her and second there was no injury caused by any
sharp cutting object/Hassiya. He has also admitted that no weapon or object
was sent to him for query report.
5. It is submitted that appellants are innocent. They have been falsely
implicated. Enmity is a double edged sword and therefore, conviction only
on the basis of history of past enmity is not maintainable and be set aside.
6. Shri Ved Prakash Tiwari, learned counsel for State submits that
Sushil Kumar Lodh (PW-1) is an eyewitness. Circumstances of old enmity
on account of land dispute is sufficient to maintain conviction and therefore,
prays for maintenance of the conviction.
7. After hearing learned counsel for the parties and going through the
record.
8. Dehatinalishi is Ex.P-1. It was lodged by Sushil Kumar Lodh son of
Maniram Lodh (PW-1). He has stated that deceased Indrani Lodh had called
him as her elder son was at Banda and younger son was working with her
husband at Haryana then he had gone to Village - Amlia where injured
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deceased had informed him that Ram Prasad and his family members wanted
to snatch her land. On 01.12.2021 at about 10:00 AM when he was getting
ready to go from the house of his Mausi to Khera, injured Indrani was
working at Bagariawala Khet where Ram Prasad Lodh and Pappu Lodh
armed with lathi and Kusma armed with Hassia (sickle) reached to the spot
and started abusing Indrani. They were saying that the said field is their,
when Indrani stopped them from abusing then Ram Prasad Lodh and Pappu
Lodh with lathi and Kusma Lodh with Hassia had caused marpeet to Indrani
that she had sustained injuries in her head and because of fear nobody came
forward to save her.
9. In para -6 of his cross examination, Sushil Kumar Lodh (PW-1)
admits two things, one that if on the land which is said to be disputed, Ram
Prasad Lodh is in possession, then he cannot say anything. Secondly, he has
stated that on the date of the incident, he had received a phone call from
Haryana. His Mausa was speaking from Haryana and said that there is some
dispute, go and look for your Mausi. On receiving such phone call, when he
reached the House of Mausi, he did not found Mausi at her house but he had
found Mausi at Ajaygarh Hospital. He has admitted that he had taken his
cousin brother Sultan to Ajaygarh Hospital.
10. In para-7 he admits that Indrani was taken to hospital by Lala @
Arvind Singh Lodh who is second son of appellant Ram Prasad Lodh. He has
admitted that he had reached Ajaygarh Hospital at 10:00 AM. Thus,
testimony of PW-1 in cross examination demolishes prosecution case that
PW-1 was an eyewitness. PW-1 himself admits that when he got information
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through his Mausa on phone he had reached house of his Mausi but she was
not there and was admitted in Ajaygarh Hospital.
11. PW-2 admits that at the time of the incident he was at Banda, he is
not an eyewitness. PW-3 has stated that he and Sushil had taken Indrani in a
Jeep to Hospital, this is contrary to the statement of PW-1 Sushil who
admitted that Indrani was taken to hospital by one of the sons of Ram Prasad
and he was accompanied with Sultan Singh and they had met Indrani at
Ajaygarh Hospital. This witness in para -11 admits that no marpeet had taken
place in front of him and deceased had not said anything about the incident
either to him or to Sushil (PW-1). He is a hearsay witness as is evident from
cross examination in para -12 where he says that he had heard that some
dispute in regard to division of property was going on.
12. Shiv Kumar Lodh (PW-4) is husband of deceased Indrani Lodh.
He has admitted that he was at Haryana on the date of the incident. Thus, it is
evident that there is no eyewitness to the incident, then the present case is
required to be dealt with as if it is a case of circumstantial evidence. Dr. D.P.
Prajapati (PW-5) admitted that injuries sustained by Indrani could have been
caused on account of fall from stairs. He has admitted that there were no
injuries caused by sharp cutting object as there was no incised wound. PW-5
also stated that no weapon was sent to him for query report.
13. PW-7, Rahul Yadav stated that he was working at Community
Health Center, Ajaygarh as Medical Officer, Indrani was brought to
Ajaygarh Hospital by constable of Amlia, 582 Shubham Shukla for MLC.
He had seen one injury in the middle of the hair measuring 3x2x1 centimeter
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caused by hard and blunt object. PW-7 stated that he had referred Indrani to
District Hospital, Panna. In cross examination, he has admitted that except
on the head there were no other external or internal injuries on the body of
the deceased. He has also admitted that if a person falls from some height or
a tree then injury sustained by deceased could have been contacted. This
doctor has categorically stated that injuries could not have been caused with
any sharp cutting object.
14. Dr. Punya Pratap Singh (PW-8) is a witness of seizure but articles
so seized were never sent for query report and therefore, it cannot be said that
there is any expert evidence to show that injury could have been caused with
the lathis, which were recovered from the possession of the appellants.
Similarly, in the FSL report (Ex.P-25), no human blood was found on the
articles i.e. lathi article D, lathi article E and Sickle article F. This witness has
also admitted that Indrani is his Mausi and he had come to Court along with
Ajeet and Sultan. This witness admitted that all the prosecution witnesses are
close relatives of Indrani. There is no independent witness to support the
prosecution case. There is no other set of evidence to uphold conviction of
the appellants.
15. On going through the impugned judgment, we find that learned
trial Court has recorded a finding accepting Sushil Kumar Lodh (PW-1) to be
an eyewitness and has upheld conviction treating him to be an eyewitness but
in our opinion trial Court erred in not going through the cross examination of
Sushil Kumar Lodh (PW-1) where he admitted that he had reached the house
of Mausi after receiving a call from his Mausa stationed at Haryana. He had
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not found his Mausi in her house and then went to Ajaygarh, Community
Health Center where he had met his Mausi. He has admitted that Sultan
Singh (PW3) was accompanying him to Ajaygarh, therefore, it is evident that
PW-1 admittedly was not present at the place of the incident. Sultan Singh
(PW-3) has already admitted that when he reached the place of incident,
PW-1 was already there but there is contradiction in his statement and that of
PW-1, therefore, in absence of there being any eyewitness, and we being
aware of this fact that Supreme Court in Balaram vs. State of Madhya
Pradesh, 2023 SCC OnLine SC 1468 has held that
"It is well settled, as laid down in a locus
classicus case of Vedivelu Thevar v. State of Madras,
AIR 1957 SC 614, there are three types of witnesses,
which are
(i) wholly reliable,
(ii) wholly unreliable, and
(iii) neither wholly reliable nor wholly unreliable.
It is further noted in para-12 that 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 the third category of witnesses which is
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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."
16. Thus when examined, then it is evident that Sushil Kumar Lodh
(PW-1) is wholly unreliable witness. He is not an eyewitness. There is no
other eyewitness. Prosecution has failed to complete the chain of
circumstances to point out towards the guilt of the appellants. Dr. D.P.
Prajapati (PW-5) though opined that there was no injury caused with sharp
cutting weapon yet conviction of appellant Kusma reveals that there is
improper appreciation of evidence and facts available on record.
17. Similarly, there being no blood stain and it is admitted by PW-1
that Indrani was taken to hospital by second son of appellant Ram Prasad
Lodh discards the theory of old enmity between the families becoming cause
of marpeet between the injured Indrani and the appellants and therefore,
went tested then since chain of circumstances is not complete, conviction of
the appellant with the aid of Section 34 of the IPC cannot be upheld,
inasmuch as prosecution has also failed to prove common intention to
substantiate conviction with the aid of Section 34 of the IPC. Therefore, in
absence of any reliable evidence, impugned judgment of conviction based on
surmises and conjectures requires to be set aside and is hereby set aside.
18. Accordingly, the appeal is allowed.
19. If the appellants are not required in any other case, they be released
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forthwith.
20. All the pending IAs are closed.
21. The order of the trial Court regarding the case property is
affirmed.
22. With the copy of judgment, the record of the Trial Court be
returned back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
DPS
