Madhya Pradesh High Court
Rakesh Kewat @ Laddu Kewat vs The State Of Madhya Pradesh on 13 November, 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 RAMKUMAR CHOUBEY
ON THE 13th OF NOVEMBER, 2025
CRIMINAL APPEAL No. 8724 of 2024
RAKESH KEWAT @ LADDU KEWAT AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Narendra Kumar Mishra - Advocate for the appellants.
Shri Ajay Tamrakar - Public prosecutor for the respondent/State.
WITH
CRIMINAL APPEAL No. 12948 of 2024
SANJAY KEWAT ALIAS SHIVAM KEWAT AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Shashank Sourabh Singh - Advocate for appellant.
Shri Ajay Tamrakar - Public prosecutor for the respondent/State.
ORDER
Per: Justice Vivek Agarwal
These Criminal Appeals are filed being aggrieved of the judgment
dated 28.05.2024 passed by learned First Additional Sessions Judge,
Sidhi District Sidhi in S.T. No. 17 of 2022, whereby the learned trial
Court has convicted and sentenced the appellants as under:
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Appellant No.1 Rajesh Kewat @ Laddu Kewat and appellant No.2
Panchu Kewat in Criminal Appeal No. 8724 of 2024:
Conviction Sentence
Section Act Imprisonment Fine if Imprisonment
deposited in lieu of fine
302/34 IPC RI for life Rs.2000/- R.I. for six
months.
323 (2 IPC Nil Rs.1000/- R.I. for 01-01
counts) each count months
506 Part- IPC RI for 03 years Rs.1000/- R.I. for 01
II month.
Appellant No.1 Sanjay Kewat @ Shivam in CriminalAppeal No. 12948
of 2024
Conviction Sentence
Section Act Imprisonment Fine if Imprisonment
deposited in lieu of fine
302 IPC RI for life Rs.2000/- R.I. for six
months.
323 (2 IPC Nil Rs.1000/- R.I. for 01-01
counts) each count months
506 Part- IPC RI for 03 years Rs.1000/- R.I. for 01
II month.
Appellant No.2 Rajkumar Kewat @ Mirra Kewat in CriminalAppeal No.
12948 of 2024
Conviction Sentence
Section Act Imprisonment Fine if Imprisonment
deposited in lieu of fine
302/34 IPC RI for life Rs.2000/- R.I. for six
months.
323 (2 IPC Nil Rs.1000/- R.I. for 01-01
counts) each count months
506 Part- IPC RI for 03 years Rs.1000/- R.I. for 01
II month.
2. Learned counsel for the appellant submitted that, it is a case of
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over implication. Prosecution story in short is that, on 25.10.2021
complainant Shailendra Singh had lodged a report at Police Chowki
situated in Hospital at Sidhi to the effect that, he is a resident of Village
Bhamrahiya, P.S. Kotwali District Sidhi. He was at his home, when at
about 06:00 p.m. villagers namely Sanjay Kewat @ Shivam Kewat,
Rajkumar Kewat @ Mirra Kewat (appellants in CRA No. 12948 of
2024), Rakesh Kewat @ Laddu Kewat and Panchu Kewat (appellants in
CRA No. 8724 of 2024) were grazing their goats in front of his house
and were exchanging abuses when his father stated that since full family
is in the house they should not use abusive language, then all these four
accused persons abused his father Rajkishore Singh, when Sanjay Kewat
had taken out a Tangi (axe) and had hit thrice on the head of the
injured Rajkishore Singh causing grievous injuries, then Rajkishore
Singh was fallen down and was bleeding. Anurag Singh had come to
intervein, then Rakesh Kewat @ Laddu Kewat, Rajkumar Kewat and
Panchu Kewat started beating Anurag Singh. On raising an alarm
neighbors Niraj Singh,Vikash Singh, Onkar Singh and Arun Singh came
and they saw the incident. While leaving the place of the incident, all
four accused persons saying that today they have been spared but if
they come in their way again, then they will kill them.
3. They have taken and successfully proved the plea of private
defence. Even the accused persons had recorded FIR against the
complainant party registering case crime No. 1114 of 2021 under
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Sections 294, 323 & 506/34 of IPC. The trial was conducted in ST No.
72/2022 by learned First Addl. Sessions Judge, Sidhi and vide judgment
dated 28.05.2024 learned trial Court has convicted the accused persons
namely Arun Singh and Shailendra Singh under Section 323/34 of IPC
on four counts and sentenced them with a fine of Rs.1000/- on each
count with default stipulation of one month R.I.
4. Thus, it is submitted that, firstly incident took place at the spur
of the moment, secondly the main allegation is on Sanjay Kewat and
thirdly no case of common object is made out so to sustain conviction
with the aid of Section 34 of IPC, therefore, impugned judgment of
conviction be set-aside. Appeals be allowed and disposed of.
5. Learned Public Prosecutor for the respondents/State Shri Ajay
Tamrakar in his turn submits that, incident as is narrated in the
prosecution story reveals that, all the four accused persons were involved
and therefore, no indulgence is called for.
6. After hearing learned counsel for the parties and gone through
the records.
7. It is evident that, FIR was lodged on 25.10.2021 registering
Case Crime No. 0189/2021 under Section 294, 323, 506, 307 & 34 of
IPC stating that incident took place at about 06:00 p.m. on 25.10.2021,
intimation was received at the Police Station at 19:00 hrs. vide
Roznamcha Sanha Entry No. 443 dated 25.10.2021. As per the FIR
(Ex.P-1) same story is mentioned as is given in the prosecution story
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mentioned above.
8. Raj Kishore Singh died on the next day when offence under
Section 302 IPC was added. Naksha Panchnama (Ex.P-3) was prepared.
In Ex.P-3, it is mentioned that, in the opinion of the Panch Raj Kishore
Singh died on account of injuries sustained in a marpit. Dead body was
handed over to Chandresh Singh, S/o Raj Kishore vide Ex.P-4.
Thereafter, memorandum of Sanjay @ Shivam was recorded as
contained in Ex.P-5 and on the basis of memorandum, tangi (axe) was
seized from him vide EX.P-6. Thereafter memorandum of Rakesh Kewat
@ Laddu Kewat was recorded. Recovery of one bamboo stick has been
shown from the possession of Rakesh Kewat @ Laddu Kewat vide Ex.
P-10. Similarly from the place of the incident sample and blood soaked
soil was collected. Blood soaked shirt of Rajkishore was seized vide
Ex.P-12 and then other accused persons were arrested on 26.10.2021.
Statements under Section 161 Cr.P.C. of Omkar Singh was recorded on
14.11.2021. First Information Report is Ex.P-16. MLC of Rajkishore is
Ex.P-17-A proved by PW-18 that of Anurag Singh is Ex.P-18-A proved
by PW-18 and that of Shailendra is Ex.P-19 proved by PW-18.
9. In FSL report (Ex.P-25) human blood was found on the shirt
of Rajkishore, under wear (F-1), Article-G blood and cotton gauge
(Article-H). Merg was registered vide Ex.P-26, post-mortem report is
Ex.P-27. In the post-mortem report (Ex.P-27) it is mentioned that, death
was caused because of head injury. It was antemortem, caused by hard
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and blunt object, within 12 hours of post-mortem. Post-mortem was
conducted on 26.10.2021 at about 11:20 a.m.
10. Prosecution examined as many as 21 witnesses in support of
its case. All the accused persons abjured their guilt and stated that since
they had an old dispute with the deceased and they had refused to work
with the family of the deceased, therefore, they have been falsely
implicated on the basis of a false report.
11. Shailendra Singh (PW-1) identified all the accused persons
and stated that, it was Sanjay Kewat who had hit Rajkishore with a tangi
on his head. He has improvised his statements recorded under Section
161 Cr.P.C. as contained in Ex.D-1 in which the allegation is only on
Sanjay Kewat to have caused assault with Tangi on Rajkishore. There is
no allegation of exhortation to kill Rajkishore. In cross-examination this
witness (PW-1) states that Rajkishore was hit with a tangi by Sanjay
Kewat in front of his house and not, thereafter. This witness further
admits that Priyanshu Singh is his real sister-in-law and at the time of the
incident she was not at the place of the incident. Similarly, Narendra
Singh is a resident of his village and his house is about 1 k.m. away from
the house of this witness. He has categorically stated that when dispute
has arisen with the accused that time his sister-in-law had not intervened.
He had not called his sister-in-law to intervene. In para 25 he admits
that, his sister-in-law Priyansh Singh had not come to intervene. He also
admits that, his mother Subhadra Devi had not come to the place of the
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incident to intervene. This witness also admitted that Anurag Singh is his
cousin brother and is son of Danbahadur. They are neighbourers, so also
Neeraj Singh. He admitted that name of father of Neeraj Singh is not
Rajbali Singh and nobody in the name of Rajbali Singh is staying in his
village. He stated that, he does not know the distance between his house
and that of Onkar Singh. He also admitted that at the time of dispute
Vikash Singh was not available at the place of the incident. Later on he
improvised his statement and stated that Vikash Singh came later to
intervene. He also stated that, Neeraj Singh had come after 10-15
minutes to intervene in the dispute. Then stated that house of Onkar
Singh is at a distance of 700-800 meters from his house. He admitted
that, nobody from Tribal community, Kol community, Kewat or Saket
community had come to intervene in the incident. This witness admit
that, at the time of recording of FIR (Ex.P-1) no interrogation was made
from Chandrakesh Singh or Arun Singh.
12. In para-39 this witness (PW-1) states that, he had not given
case diary statement (Ex.D-1) to the Police and if it is enclosed then it is
not his statement. He admitted that, Police had not taken any statement
with the help of Computer. He further admits that, Police had not
recorded any statements of his brother Arun Singh in front of him. This
witness admitted that, Pradhan Mantri Sadak which is a Pitch road is
available in front of his house, whereas, PCC or Concrete road is made
in front of the house of the accused persons. In para-42, this witness
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admits that, his father Rajkishore Singh had run towards accused
Shivam's house with a Tangi to hit him and his father was also abusing
Sanjay @ Shivam, at that time it had started becoming dark. He has also
stated that, accused had fallen down on account of an assault in the
hands of his father Rajkishore and then accused had snatched Tangi
from the hands of his father and had hit his father. This witness further
admits that, due to darkness he had not seen as to who was hitting
whom.
13. Anurag Singh (PW-2) in para-5 stated that at time of
incident he and Shailendra Singh were on their respective terraces and
they were not with Rajkishore when the incident took place. Rajkishore
was alone and he had reached at the spot after 05 minutes. He further
admitted that, at the instance of Sanjay @ Shivam a report was lodged
against Anurag at Police Station Kotwali, Sidhi District Sidhi as Case
Crime No. 1114 of 2021. He denied that Shivam had sustained injuries
on his left eye and knee. This witness denied a suggestion that when they
were going towards the house of Panchu Kewat to save Arun Singh, then
Sanjay Kewat had hit Rajkishore with a Tangi. This witness admitted
that, after alarm was raised then Neeraj Singh, Vikash Singh and Onkar
Singh had come.
14. However, when this witness has stated that, he was present
alongwith Shailendra (PW-1) and Shailendra has admitted that, Vikash
Singh was not present when the dispute had occurred with accused
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persons and in para-16 of his cross-examination, this witness (PW-2)
admitted Chandrakesh Singh is the son of his father's elder brother and
in that relation he is his cousin brother. His inlaws are residing at
Rampur Baghelan. His in-laws has no male child. He also admitted that
Sanjay Kewat and Rakesh Kewat were working as servants in the house
of Chandrakesh Singh. He admitted that, Chandrakesh Singh had taken
Sanjay and Rakesh Kewat in relation to work to his inlaws house. In
para-19 of his cross-examination this witness (PW-2) admits that, for
the same incident a report was lodged against Anurag Singh, Rajkishore
Singh, Shailendra Singh and Arun Singh at Police Station Kotwali Sidhi.
At that time, Anurag Singh was Juvenile and his matter is pending at
Juvenile Court. This witness too has admitted that wife of Rajkishore
Singh (deceased) i.e. mother of Shailendra Singh namely Subhadra and
sister-in-law of Shailendra Singh namely Priyanshu Singh W/o Arun
Singh were inside their house and both Subhadra and Priyanshu were
not present at the place of the incident. They had not intervene at the
time of the incident and they had also not raised any alarm. This witness
(PW-2) admits that distance between his house and that of the accused
persons is about 500 meters. There is a temple, government school and
fields in between. He further admits that Narendra Singh resides at a
distance of 1 k.m. and had not intervened in the dispute. He also stated
that, houses of Onkar Singh and Neeraj Singh are at a distance of about
500 meters and further stated that no tangi was recovered from accused
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Sanjay by the police. Police had only obtained his signatures after
recording his statement, which he had read and signed.
15. Chandrakesh Singh (PW-3) in para-6 of his cross-
examination admitted that, he had not seen the incident with his own
eyes and later on he was informed about the incident by the villagers.
Therefore, Chandrakesh Singh (PW-3) is not an eye-witness.
16. Danbahadur Singh (PW-4) is a Primary Teacher and a
witness of seizure memo (Ex.P-6). He admitted that, deceased Raj
Kishore is his brother. There are several houses including that of Rajdhar
Singh and Shiv Naresh Singh in close proximity to the house of
Rajkishore. He admitted that, no notice was given to him for appearing
at the time of preparation of different panchnamas. This witness (PW-4)
stated that, tangi was recovered vide Ex.P-5 from Rakesh Kewat @
Laddu Kewat. Police had not measured the tangi. He further admitted
that, Arun Singh and Chandrakesh Singh are sons of deceased
Rajkishore Singh. He had signed Ex.P-7 at Police Station Kotwali, Sidhi.
This witness admitted that, accused persons had recorded a criminal case
against his nephews. He admitted that Anurag Singh is his son and a
criminal case is pending in Juvenile Court.
17. In para-14 Neeraj Singh (PW-5) has stated that, Rakesh
Singh was not armed with any weapon. He had hit with kicks and fists.
Panchu Kewat had not hit Rajkishore but had only hit Shailendra Singh
and Anurag Singh with a lathi. Similarly he stated that Rajkumar Kewat
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was not armed with any weapon but had used kicks and fists. This
witness stated that, police had not recorded any statement at the hospital.
He further stated that, in his case diary statements (Ex.D-3), he had
informed that, Rajkishore was brought in an Auto for primary treatment.
18. Balendra Singh (PW-6) admitted in para-4 of his cross-
examination that, at the time of the incident, he was in the shop and he
had not seen the incident from his own eyes. He admitted that, he is a
hearsay witness.
19. Narendra Singh (PW-7) stated that though seizure memo
(Ex.P-11 & Ex.P-12) contains his signatures but no recovery was made
in front of him and though on Ex.P-13 arrest memo of Rakesh Kewat his
signatures are there, but Rakesh Kewat was not arrested in front of him.
This witness was declared hostile. Leading questions were put to him. In
para-5 of his cross-examination, this witness admitted that he was not
present at the time of the incident.
20. Priyanshu Singh (PW-8) is a witness of Naksha Mauka
(Ex.P-8), memorandum statement (Ex.P-9) and seizure memo (Ex.P-10).
In para-4 of her statement she stated that, the danda which was exhibited
to have been recovered from Rakesh @ Laddu Kewat was used to beat
Rajkishore Singh, Shailendra Singh and Anurag Singh. However, as per
Shailendra Singh (PW-1), she was not present at the place of incident.
21. In para-5 of her cross examination, PW-8 admits that, a cross
case was registered against her father-in-law Rajkishore Singh,
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Shailendra Singh, Arun Singh and Anurag Singh at the instance of the
accused persons. In para-8, she admits that, she had not visited the house
of Rakesh Kewat alongwith the police personnel, therefore, her
testimony is doubtful.
22. Subhadra Singh (PW-9) has deposed as if she was an
eyewitness but her presence has been denied by PW-1 Shailendra
Singh.
23. Vikash Singh (PW-10) is another relative of Rajkishore in
para-3 of his cross-examination admits that at the time of incident he was
playing cricket with 11-12 other persons and Onkar was with him
playing cricket. He had gathered information about the incident after half
an hour when it was given to him by Arun Singh and Anurag Singh.
Thus, it is admitted that, he is a hearsay witness and is not an
eyewitness.
24. Arun Singh (PW-11) is son of deceased Rajkishore Singh
admitted that, he had gone to lodge the report alongwith Shailendra
Singh (PW-1). He denies that spot map was prepared in front of him. He
admits in para-7 of his cross-examination that, a criminal case of marpit
is registered against the complainant party as well. This witness has
stated that accused persons caught hold of him and were dragging him
towards his house, but this fact is not mentioned in the FIR (Ex.P-1)
though Arun Singh (PW-11) admits that Shailendra (PW-1) has recorded
FIR in his presence. Therefore, even testimony of Arun Singh (PW-11)
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in regard to the incident is doubtful.
25. Hakim Singh (PW-12) is the Police Constable who had
seized the blood sample etc. from deceased Rajkishore for DNA
examination. Shivkumar Choudhary (PW-13) and Vijay Singh (PW-14)
are constable and Head Constables who had seized and recovered certain
articles.
26. Onkar Singh (PW-15) was declared hostile. He has stated
that, he was informed by Arun Singh, Vikash Singh and Shailendra that
Sanjay @ Shivam had hit Rajkishore with Tangi. He denied his police
statement contained in Ex.P-15. In para-4 of his cross-examination, he
has admitted that when he reached at the place of incident, since it was
dark, he could not see it properly. He denied that, he had admitted
Rajkishore in the Hospital. In para-6 this witness (PW-15) admits that,
he had not seen with his own eyes as to which of the accused had beaten
which of the persons. He was given a suggestion that accused had also
registered a case but he denies having any information about it.
27. Gappu Kushwaha (PW-16) is the person who was posted as a
Sainik and who had registered the case Crime No. 189 of 2021 at Zero
Number at Police Assistance Center, District Hospital, Sidhi.
28. Dr. Pankaj Tiwari (PW-18), a Medical Officer at District
Hospital, Sidhi stated that, there was an injury on the occipital region of
Rajkishore measuring 5x0.5 c.m. deep and second injury was 4x0.5 c.m.
bone deep. In the middle of the head there was an injury measuring
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3x0.5 c.m. bone deep. Patient was unconscious. Injuries were caused
with an sharp object within 12 hours of examination. He had advised CT
Scene and X-ray. Further, it is stated that, Anurag Singh and Shailendra
Singh had sustained injuries which were simple in nature. In his cross-
examination this witness (PW-18) admitted that, if somebody falls
loosing his balance on a concrete road, then its corner can cause injuries
as are mentioned at Sl. no.1 & 2.
29. Dr. Rajnish Kumar Pandey (PW-21) had conducted
postmortem. He stated that, cause of death was head injury, which was
caused with hard and blunt object. This witness (PW-21) also admitted
that, the injuries as were found on the body of the deceased could not
have been contacted if a person collides with an object and falls down.
He categorically stated that, injuries No. 1, 3 & 4 could not have been
caused with a sharp incised object.
30. When these facts are taken into consideration, then firstly,
from the evidence of Shailendra Singh (PW-1) who is the author of the
FIR and who has admitted in para-42 of his cross-examination that his
father Rajkishore Singh had run to hit Shivam with a tangi and he was
also abusing Sanjay @ Shivam and thereafter, has stated that, Sanjay @
Shivam had fallen down when his father Rajkishore had hit him and then
Sanjay @ Shivam had snatched tangi from the hands of his father and
had hit him with that tangi which was originally caried by Rajkishore,
then in the light of the judgment of Hon'ble Supreme Court in the case of
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Ex.-Ct. Mahadev Vs. Director General, Border Security Force & Ors.
(2022)8 SCC 502, it is held that, "a conjoint reading of the provisions of
Section 96 to 103 and Exception 2 to Section 300 IPC leaves no manner
of doubt that culpable homicide is not murder if the offender, in the
exercise in good faith of the right of private defence of person or
property, exceeds the power given to him by law and causes the death of
the person against whom he is exercising such right of defence, provided
that such right is exercised without premeditation and without any
intention of doing more harm than is necessary for the purpose of such
defence".
31. In the case of Arvind Kumar @ Nemichand & Ors. Vs. State
of Rajasthan (2022)16 SCC 732, it is held that, when the accused
received injuries during the same occurrence in which the complainants
were injured and when they have taken the plea that they acted in self-
defence, that cannot be lightly ignored particularly in the absence of any
explanation of their injuries by the prosecution.
32. It is further held that, if injuries on the accused are
substantial and to the knowledge of the prosecution, a failure to conduct
the investigation while denying the same would be fatal especially when
a doctor who examined the deceased and the injured accused deposes
otherwise. In a murder case, the non-explanation of the injuries sustained
by the accused at about the time of the occurrence or in the course of
altercation is a very important circumstance from which the Court can
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draw the following inferences:
"(1) That the prosecution has suppressed the genesis and the origin
of the occurrence and has thus not presented the true version;
(2) That the witnesses who have denied the presence of the injuries
on the person of the accused are lying on a most material point and
therefore their evidence is unreliable;
(3) That in case there is a defence version which explains the
injuries on the person of the accused it is rendered probable so as to
throw doubt on the prosecution case."
33. When ratio of the aforesaid judgments in the case of Arvind
Kumar @ Nemichand (supra) and Ex. Ct. Mahadev (supra) is taken into
consideration and when the evidence of the eyewitness is examined, then
it is evident that, in the FIR no overt act vis a vis deceased Rajkishore
has been scribed due to any of other accused persons except Sanjay @
Shivam Kewat.
34. It is admitted by Neeraj Singh (PW-5) that Rakesh Kewat
was not armed with any weapon, he had only used kicks and fists.
Panchu Kewat had not hit Rajkishore but had beaten Shailendra Singh
and Anurag Singh with lathi. Rajkumar Kewat too had not hit
Rajkishore but had only hit him with kicks and fists. This witness has
stated that Rajkishore had sustained one head injury, one incised wound
on his hand and abraisons on his body. When these facts are taken into
consideration and even as per the prosecution first version as contained
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in FIR (Ex.P-1) is that it was Sanjay @ Shivam Kewat who had hit
Rajkishore with Tangi. This fact is corroborated with the evidence of Dr.
Rajnish Kumar Pandey (PW-21) who conducted postmortem and had
stated that there was one stitched wound on the Occipital Region with
abrasions. Wound was more towards the right hand side with five
stitches. This wound was in the "Y" shape. On removal of stitches, he
found that the wound was bone deep. Doctor opined that Injury No.2
was abrasion of red colour on the right parietal eminence part. Third
injury was on the right forearm 15 c.m. below shoulder measuring 5 x
3.5 c.m. which was of reddish blue color. Injury No.4 was towards the
base of the right toe containing lacerated wound on the inner surface
measuring 0.5 x 0.1 subcutaneous deep. Injury No.5 was red color
abrasion on the right shoulder measuring 1.5 c.m. x 0.7 c.m. This Doctor
(PW-21) categorically stated that, in his opinion, cause of death was
head injury, which was antemortem and was caused by hard and blunt
object. It is also an admitted fact that Rajkishore had first assaulted
Sanjay @ Shivam who had snatched Rajkishore's tangi and gave a single
blow.
35. However, there is some contradiction viz-a-viz evidence of
Dr. Pankaj Tiwari (PW-18), but the fact of the matter is that, in Ex.P-
17/A, Dr. Tiwari has shown only two incised wound on the posterior
side and middle of skull which corroborated by Dr. Pandey (PW-21)
saying that the shape of the wound was "Y" shape and that explain that
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Dr. Pandey (PW-21) had rightly diagnosed only one injury on the head
which turned out to be fatal.
36. Therefore, conviction of the appellants Rakesh Kewat @
Laddu Kewat and Panchu Kewat (In CRA No. 8724 of 2024 and
Rajkumar Kewat (in CRA No.12948 of 2024) under Section 302 IPC
with the aid of Section 34 IPC is not made out especially when there was
no common intention and Shailendra Singh (PW-1) has admitted in para-
42 of his cross-examination that in fact his father Rajkishore Singh was
an agressor. Therefore, conviction of appellants Rakesh Kewat @ Laddu
Kewat and Panchu Kewat in CRA No. 8724 of 2024 under Section
302/34 IPC cannot be sustained in the eyes of law and the same is hereby
set-aside, however, their conviction under Sections 323 (two counts) and
506 Part-II of IPC is hereby maintained subject to depositing of fine
amount. Similarly Conviction of Rajkumar Kewat in CRA No.12948 of
2024 under Section 302/34 IPC also cannot be sustained in the eyes of
law, for the reasons stated above that is they had no common intention
and hence the same is hereby set aside, however, his conviction under
Sections 323 (two counts) and 506 Part-II of IPC is hereby maintained
subject to depositing of fine amount.
37. Shailendra Singh (PW-1) has admitted that it was a case of
free fight. We have been, taken through the judgment of of the trial
Court in ST No. 72/2022 passed on the same day i.e. on 28.05.2024
respectively in S.T. No. 17/2022 and has convicted both Arun Singh and
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19 CRA-8724-2024
Shailendra Singh under Section 323/34 IPC yet prosecution did not
explain the injuries on the body of Panchu, Rakesh, Sanjay and
Rajkumar. This is a grave irregularity and illegality on the part of the
prosecution. Therefore, in the light of judgment of Hon'ble Supreme
Court in the case of Arvind Kumar (supra) , it is evident that prosecution
suppressed the genesis and the origin of the occurrence and has thus, not
presented the true version. It being a free fight, individual role is to be
seen. Dr. Tiwari (PW-18) who had examined the injured in the present
case and had also examined the accused party and had found injuries on
their bodies. Shailendra Singh (PW-1) has admitted that Rajkishore
Singh was an aggressor and had run after Sanjay @ Shivam Kewat
armed with a tangi when Sanjay @ Shivam Kewat had fallen down on
account of the axe of Rajkishore, when he had snatched the tangi and
had hit Rajkishore. Therefore, it is evident that, Sanjay @ Shivam was
exercising his right of private defence and therefore, in the light of the
judgment of Hon'ble Supreme Court in the case of Ex. Ct. Mahadev
(supra), the case of the appellant Sanjay Kewat @ Shivam Kewat (in
CRA No. 12948 of 2024) will fall under Exception 2 to Section 300 of
IPC and thus, conviction of the appellant Sanjay Kewat @ Shivam
Kewat (in CRA No. 12948 of 2024) cannot be sustained under Section
302 of IPC but is liable to be converted under Section 304 Part-II of IPC
and is accordingly his conviction is altered from Section 302 IPC to
Section 304 Part-II of IPC. Inasmuch as according to Dr. Rajnish Pandey
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20 CRA-8724-2024
(PW-21) there was only one head injury which became fatal and other
injuries were on non-vital part and were not grievous in nature. We say
so, because when a right of private defence is exercised then, it cannot be
said that, there was an intention to cause homicidal death of the
aggressor but there may be knowledge attributed to the accused Sanjay
that his act would have caused death.
38. Accordingly, conviction of appellant Sanjay Kewat @
Shivam Kewat in CRA No. 12948 of 2024 is converted from under
section 302 of IPC to one under section 304 Part-II of IPC, whereas
conviction and sentence of appellant Sanjay Kewat @ Shivam Kewat u/s
323 (two counts) and 506 Part-II of IPC are maintained. The appellant
Sanjay Kewat @ Shivam Kewat is sentenced u/s 304 Part-II for rigorous
imprisonment for 07 years each and fine of Rs.2,000/-, and in default of
payment of fine amount to suffer additional R.I. of 06 months.
39. In the result, all these Criminal Appeals are partly allowed to
the extent indicated above. The disposal of the case property shall be as
per the direction of impugned judgment passed by the trial Court.
40. Records of the trial Court be sent back.
(VIVEK AGARWAL) (RAMKUMAR CHOUBEY)
JUDGE JUDGE
AR
