Madhya Pradesh High Court
Ramesh vs The State Of Madhya Pradesh on 9 September, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
IN THE HIGH COURT OF MADHYA
PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 4150 of 2024
RAMESH
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Nilesh Joshi, learned counsel for the appellant.
Shri Surendra Gupta, learned Government Advocate for the
respondent/State.
Heard on : 08.08.2024
Pronounced on : 09.09.2024
This criminal appeal having been heard and reserved for
judgment, coming on for pronouncement this day, the court passing the
following :
JUDGMENT
The present appeal has been filed on behalf of the appellant
under Section 374 being disgruntled by the order dated 08.01.2024
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RAIKWAR
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passed in Sessions Trial No. 21/2021, whereby the appellant has been
convicted for the offence under Section 304 (Part-II) of the Indian
Penal Code, 1860 (hereinafter referred as to ‘IPC, 1860’) for 9 years
R.I. with fine of Rs.5,000/- and default stipulation.
02. The Prosecution case, in a nutshell, is that on 04.06.2021, the
complainant Pankaj S/o Shivram Bhagora alongwith his grandfather
Raichand, his father Shivram and her mother Durgabai were
preparing a hut for living in their own field. At the same time, Ambu
Ganawa, Dinesh Ganawa, Ramesh Ganawa and Basantibai Ganawa
resident of Kunwarjhar came there and said “why are they
constructing a hut on that land”, by saying this, they started to abuse
the complainant party. On refusal, the appellant took angle lying near
the house of Kalu Khadiya and assaulted the complainant’s
grandfather on his head and on face, due to which blood started
oozing and Dinesh assaulted complainant’s father on the head and
right leg, due to which, blooding was started. Ambu Ganawa threw a
stone by catapult (gophan/gulel) on mother of the complainant
Durgabai, which hit on right leg and Bansantibai also assaulted
Durgabai with kick and fists. The incident was seen by complainant’s
uncle (Mama) Lalsingh S/o Bhurji Ninama. The appellant Ramesh
alongwith others gave threat for life to the complainant party. The
injured were admitted in the hospital. An FIR was lodged by the
complainant bearing Crime No. 299/2021 for the offence punishable
under Sections 294, 323, 506 & 34 of IPC, 1860 at Police Station
Balakwada, District Khargone. The injured Raichand S/o Dayaram
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Bhagora was taken to the CHC Petlawad for primary treatment and
thereafter referred to Dahod Hospital. While reaching on Dahod
Hospital, injured Raichand expired. The said information was given
to the police station bearing Merg No. 33/2021 and due to death of
injured Raichand, offence under Section 302 of IPC, 1860 was
aggravated.
03. The police after following the due procedure, prepared the spot
map, taken the statements of the witnesses, seized the articles, prepared
the medical documents, arrested the accused persons and after due
investigation, the charge-sheet was filed and the case was committed
to the Session Judge and thereafter, appellants were charged for
offence under Sections 302, 294, 323, 506 & 34 of IPC, 1860. They
abjured their guilt and took a plea that they had been falsely
implicated in the present crime and prayed for trial.
04. In order to bring home the charges, the prosecution has
adduced as many as 16 witnesses namely Shivram (PW-1), Durgabai,
(PW-2), Ritubala, Lady Constable (PW-3), Ramsingh Damar, Patwari
(PW-4), Pankaj Bhagora (PW-5), Ratan (PW-6), Lalsingh (PW-7),
Raju (PW-8), Ramesh (PW-9), Jitendra Rawat, Constable (PW-10),
Deepak (PW-11), Rakesh Mourya, Constable (PW-12),
Digvijaysingh, Head Constable (PW-13), Munnalal Lashkari, Sub-
Inspector (PW-14), Dr. Dharmesh Singh Baghel, Medical Officer
(PW-15) and Richhusingh, Constable (PW-16). On behalf of defence,
01 witness namely Ramesh S/o Ambaram Ganawa was produced.
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05. Learned trial Court, on appreciation of the evidence and
argument adduced by the parties, pronounced the impugned judgment
on 08.01.2024 and finally concluded the case and convicted the
present appellant Ramesh S/o Ambu @ Ambaram for commission of
offence punishable under Section 304 (Part-II) as mentioned in para
No. 1 and also convicted the appellant Dinesh S/o Ambu @ Ambaram
for commission of offence punishable under Section 323 of IPC, 1860
and sentenced to undergo for 06 months with fine of Rs.500/- and
default stipulations while acquitted the appellants Ambu @ Ambaram
S/o Bhurji and Shantibai for the offence under Sections 302/34,
323/34, 294 and 506 (Part-II) of IPC, 1860.
06. The appellant has preferred this criminal appeal on several
grounds and submitted that the order of learned Sessions Court is
against law and facts, hence deserves to be set aside. Witnesses are
related to each other. There are serious contradictions in the
statements of prosecution witnesses. As per statement of Dr.
Dharmesh Singh Baghel (PW-15), in para 13, it was stated that reason
of causing death, has not been mentioned in the post-mortem report
(Exhibit-P/12). There is no intention to cause injury. The incident was
happened on the spur of the moment and the appellant has caused sole
injury by angle only. The said offence is not coming under the
purview of Section 304 (part-II) but rather it came in purview of
Section 325 of IPC. It is further submitted that in para No. 14 of the
judgment, the learned trial Court found that according to the medical
documents, no organ of the head had come out and there was no
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fracture. It is further submitted that in the present case, the learned
trial Court has awarded maximum sentence to the appellant. It is also
submitted that the learned Court below has failed to appreciate the
prosecution evidence and has also erred in convicting the appellant.
Further, the appellant also alternatively prayed that the appellant has
already suffered more than three years in custody. On these grounds,
his sentence should be reduced to the period already undergone by
enhancing the fine amount.
07. In alternate, learned counsel for the appellants Submits that the
learned trial Court has convicted the appellant under Section 304(II)
of IPC and sentenced for 09 years R.I. which is approximately
maximum as per the provisions of law because the maximum
sentence is 10 years. The appellants have already undergone
approximately 03 years of their incarceration period and prays that if
the appellants are awarded sentence of jail for the period of the
imprisonment already undergone under the provisions of Section
304(II) of IPC then the ends of justice will be met. In support of this
contention, counsel for the appellant has placed reliance upon the
judgment of this Court in the case of Vimal Rana & Others vs. State
of Madhya Pradesh passed in Criminal Appeal No.745/2006 dated
19.07.2010 whereby the Division Bench has awarded Six years of jail
sentence under Section 304(2) of IPC.
08. Learned Government Advocate for the State has opposed the
prayer. Inviting my attention towards the conclusive paragraphs of the
impugned judgment, learned public prosecutor has submitted that the
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deceased had died due to the injury caused by the appellant. As per
statement of Dr. Dharmesh Singh, it has been stated that the injuries
received by the Raichand were serious in nature. Certainly, there was
single blow by iron angle but the death can be caused by the weapon
used by the appellant. The learned trial Court has rightly convicted
the appellant by sentencing him appropriately. Hence, prays for
dismissal of the appeal.
09. I have considered rival contentions of the parties and perused
the record.
10. The statements of the injured and eye-witnesses of the incident
who are Shivram (PW-1), Durgabai (PW-2), Pankaj Bhagora (PW-5)
and Lalsingh (PW-7) have been recorded before the trial Court. All of
these witnesses have supported the case of prosecution. Complainant
Pankaj Bhagora (PW-5) graphically disposed that on the day of
incident, the appellants came on the spot and started hurling abuses
and assaulted complainant’s grandfather on his head and on face, due
to which blood was oozing and co-accused Dinesh assaulted
complainant’s father on the head and right leg, due to which, blooding
was started. Ambu Ganawa threw a stone by catapult (gophan/gulel)
on mother of the complainant Durgabai, which hit on right leg and
Bansantibai also assaulted Durgabai by kick and fists. Thereafter, the
appellants/accused fled away. Statement of this witness has been
supported by eye-witness i.e. Lalsingh (PW-7). In cross-examination,
the testimony of these witnesses has not been rebutted. The
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prosecution case is also well fortified by Dr. Dharmesh Singh Baghel
(PW-15).
11. Learned counsel for the appellant, on this point, vehemently
contended that the testimonies of these witnesses are full of
contradictions and omissions and since they are relatives of the
deceased, they should not be relied.
12. On this aspect In Babasaheb Apparao Patil v. State of
Maharashtra [AIR 2009 SC 1461] the Hon’ble Apex Court held as
under:-
“12. It is to be borne in mind that some
discrepancies in the ocular account of a
witness, unless these are vital, cannot per se
affect the credibility of the evidence of the
witness. Unless the contradictions are
material, the same cannot be used to jettison
the evidence in its entirety. Trivial
discrepancies ought not to obliterate an
otherwise acceptable evidence. Merely
because there is inconsistency in evidence, it
is not sufficient to impair the credibility of
the witness. It is only when discrepancies in
the evidence of a witness are so incompatible
with the credibility of his version that the
court would be justified in discarding his
evidence.”
13. Now, the contention of learned counsel regarding relative
witnesses, is also required to be pondered. Certainly, all eye-witnesses
are relative of deceased, however, the defence failed to evince the
submission regarding their interestedness against the appellant. On
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this aspect, the decision laid down by Hon’ble Apex Court in the case
of Laltu Ghosh vs. State of West Bangal AIR 2019 SC 1058 is
relevant to be referred here:-
“This Court has elucidated the difference
between ‘interested’ and ‘related’ witnesses
in a plethora of cases, stating that a witness
may be called interested only when he or she
derives some benefit from the result of a
litigation, which in the context of a criminal
case would mean that the witness has a direct
or indirect interest in seeing the accused
punished due to prior enmity or other
reasons, and thus has a motive to falsely
implicate the accused”.
14. So far as the arguments regarding non-availability of
independent witnesses is concerned, it is well settled that no criminal
case can be over-boarded due to non-availability of independent
prosecution witnesses. In this regard, the following verdict of
landmark judgment of the Hon’ble Apex Court rendered in the case of
Appa Bhai vs. State of Gujarat, AIR 1988 SC 696 is worth
referring here as under:
“10…….Experience reminds us that civilized
people are generally insensitive when a
crime is committed even in their presence.
They withdraw both from the victim and the
vigilante. They keep themselves away from
the Court unless it is inevitable. They think
that crime like civil dispute is between two
individuals or parties and they should not
involve themselves. This kind of apathy ofSignature Not Verified
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the general public is indeed unfortunate, but
it is there everywhere whether in village life,
towns or cities. One cannot ignore this
handicap with which the investigating
agency has to discharge its duties. The court,
therefore, instead of doubting the prosecution
case for want of independent witness must
consider the broad spectrum of the
prosecution version and then search for the
nugget of truth with due regard to probability
if any, suggested by the accused……”
15. Actually, in many of criminal cases, it is quite often that the
offence is witnessed by close relatives of the victim whose presence
on the spot of the incident would be natural. The evidence of such
witnesses cannot automatically be discarded by levelling them as
interested witnesses. In order to arrive at the conclusion of the guilt,
the Court has to judge the testimonies of the witnesses by the
yardstick of the probabilities and their intrinsic worth.
16. In terms of the culpability of both accused Dinesh and Ramesh
in the offence, virtually, the learned trial Court has not found that both
have made any common intention for committing the offence of
culpable homicide not amounting to murder. It is also worth to
mention that accused Dinesh has already completed the sentence and
released from jail. Since there is no appeal in this regard has been
filed by the prosecution, no decision can be made regarding common
intention of both accused for the same person. On this aspect, learned
counsel for the appellant has also raised the question that on the same
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set of evidence when two accused have been acquitted, the present
appellant cannot be convicted. On this aspect, the law laid down by
Hon’ble the Apex Court in the case of Javed Shaukat Ali Qureshi
Vs. State of Gujarat, (2023) 9 SCC 164, relevant paragraphs of the
judgment is condign to quote here :-
“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
principle 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.”
17. Nevertheless, the aforesaid law laid down by Hon’ble Apex
Court is having different aspect and it only applies when the evidence
and circumstances are the same and identical. In this case, the present
appellant has different case with regard to causing grievous injuries
over the person of deceased.
18. However, in this appeal on the basis of evidence available on
record, this Court is satisfied that the findings of the learned trial
Court regarding causing voluntary grievous hurt by hard and blunt
object to the deceased, are in accordance with law and facts and it is
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also proved beyond reasonable doubt that the deceased succumbed to
that injury.
19. Learned counsel for the appellant submitted that since the co-
accused persons namely Ambu @ Ambaram and Shantibai were
acquitted from the same set of evidence, then the appellant cannot be
convicted on the same. The law laid down by Hon’ble Supreme Court
in its Full Bench decision, rendered in the case of Gurcharan Singh
Vs. State of Punjab reported in AIR 1956 SC 460, is poignant in this
regard. The relevant part of the judgment is mentioned below :-
“Be that as it may, we are no more
concerned with the case against those
two accused persons who have been
acquitted by the High Court; but so far
as the appellants are concerned, the
evidence of the four eyewitnesses
referred to above is consistent and has
not been shaken in cross-examination.
That evidence has been relied upon by
the courts below and we do not see any
sufficient reasons to go behind that
finding. It is true that three out of those
four witnesses are closely related to the
deceased Inder Singh.
But that, it has again been repeatedly
held, is no ground for not acting upon
that testimony if it is otherwise reliable
in the sense that the witnesses were
competent witnesses who could be
expected to be near about the place of
occurrence and could have seen what
happened that afternoon. We need not
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advanced in this Court bearing upon the
probabilities of the case because those
are all questions of fact which have been
adverted to and discussed by the courts
below.”
20. Here, it has to be kept in mind that this Court is not testing the
legality of acquittal of other accused persons. However, in this appeal
on the basis of evidence available on record, this Court is satisfied
that the judgment of conviction passed by the learned trial Court is in
accordance with law and facts. It is also well-settled principle that the
maxim “falsus in uno falsus in omnibus” has no application in India.
Hon’ble Supreme Court in the case of Smt. Shakila Abdul Gaffar
Khan Vs. Vasant Raghunath Dhoble reported in (2003) 7 SCC 749
has held as under :-
“…..it is the duty of Court to separate
grain from chaff. Falsity of particular
material witness or material particular
would not ruin it from the beginning to
end. The maxim “falsus in uno falsus in
omnibus” has no application in India
and the witnesses cannot be branded as
liar. The maxim “falsus in uno falsus in
omnibus” has not received general
acceptance nor has this maxim come to
occupy the status of rule of law. It is
merely a rule of caution. All that it
amounts to, is that in such cases
testimony may be disregarded, and not
that it must be disregarded. The doctrine
merely involves the question of weight of
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what may be called ‘a mandatory rule of
evidence.”
21. In view of the aforesaid prepositions, the testimony of the
witnesses cannot be discredited or wiped out only on the basis that
other co-accused persons are acquitted on the same set of evidence.
As such the aforesaid contention is also not liable to be accepted.
22. In view of the aforesaid propositions of law, the finding of
learned trial Court regarding conviction of the appellant under Section
304(Part-II) of IPC, 1860 is found immaculate and infallible and
therefore, warranting no interference.
23. So far as the sentence part is concerned, certainly, this case is
pending since 2021 and the period of three years has been completed
and the appellant Ramesh is in jail and suffering the sentence so
awarded by learned trial Court. On this aspect, guidelines can be
taken from the judgment of the Division Bench of this Court rendered
in Vimal Rana (Supra). It is worth mentioning here that the
punishment of 10 years under Section 304(Part-II) of IPC, 1860 is
maximum sentence. This is a case of single blow, where ferocious
intention is not emanated from the record. Hence, the sentence part of
the accused is required to be modified.
24. On this aspect, the following excerpt of the judgment of Hon’ble
Apex Court rendered in Bhagwan Narayan Gaikwad vs. State of
Maharashtra; [2021 (4) Crimes 42 (SC) which is as under:-
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“28. Giving punishment to the wrongdoer
is the heart of the criminal delivery
system, but we do not find any legislative
or judicially laid down guidelines to assess
the trial Court in meeting out the just
punishment to the accused facing trial
before it after he is held guilty of the
charges. Nonetheless, if one goes through
the decisions of this Court, it would
appear that this Court takes into account a
combination of different factors while
exercising discretion in sentencing, that is
proportionality, deterrence, rehabilitation,
etc.”
25. In conspectus of aforesaid proposition of law and mitigating
circumstances of the case, this appeal is partly allowed. The finding
of the learned trial Court regarding conviction for the offence under
Section 304(Part-II) is affirmed with modification of sentence to the
extent of 05 years R.I. instead of 09 years of R.I. and with fine of
Rs.25,000/- in place of Rs.5,000/-. In case of default of payment of
fine amount, the appellant shall undergo further three months Simple
Imprisonment.
26. He be set at liberty forthwith if not required in jail in any case
after completion of the aforesaid jail sentence and depositing the fine
amount.
27. The judgment regarding disposal of the seized property stands
confirmed. Out of the total fine amount, if recovered fully,
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Rs.20,000/- be paid to son of the deceased namely Shivram S/o
Raichand.
28. The fine amount already deposited and the compensation
amount already paid, shall be adjusted.
29. A copy of this order be sent the learned trial Court concerned
for information and compliance.
30. Pending application, if any, stands closed.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
Vindesh
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