Madhya Pradesh High Court
The State Of M.P. vs Hippi @ Satyendra & Ors on 6 November, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2024:MPHC-JBP:54842
1 CRA-150-1996
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 6 th OF NOVEMBER, 2024
CRIMINAL APPEAL No. 150 of 1996
SUNIL KUMAR AND OTHERS
Versus
THE STATE OF M.P.
Appearance:
Shri Manish Datt - Senior Advocate assisted by Shri Siddharth Datt - Advocate for the
appellants.
Shri Ajay Shukla - Government Advocate for the respondent/State.
WITH
CRIMINAL APPEAL No. 725 of 1996
THE STATE OF M.P.
Versus
HIPPI @ SATENDRA AND OTHERS
Appearance:
Shri Ajay Shukla - Government Advocate for the appellant/State.
Shri Prahlad Chourasia - Advocate for respondents.
ORDER
Per: Justice Vivek Agarwal
At the outset, it is appropriate to mention that the appellant No.1 –
Chandmal died on 23.11.1998 and the appeal stood abated qua appellant
No.1 vide order dated 12.07.1999; Appellant No.3- Sushil Kumar S/o
Chandmal Sondhiya died on 08.09.2020 and the appeal stood abated qua
Appellant No.3 vide order dated 13.09.2024; it is informed that Appellant
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 29-11-2024
18:25:20
NEUTRAL CITATION NO. 2024:MPHC-JBP:54842
2 CRA-150-1996
No.5 – Dr. Shripal Dodiya S/o Shikhar Chand Dodia died on 08.09.2020, a
fact which is not disputed by Shri Manish Datt, Sr. Advocate and hence, the
appeal stands abated qua Appellant No.5; Appellant No.6 – Prakash Chand
Sondhiya S/o Pyarelal Sondhiya is no more and the appeal stood abated qua
Appellant No.6 vide order dated 19.02.2001. Accordingly, Criminal Appeal
No.150/1996 qua Appellant No.1, Appellant No.3, Appellant No.5 and
Appellant No.6 is dismissed as abated.
Shri Manish Datt, learned Senior Counsel submits that the appellant
No.2 – Sunil Kumar S/o Dr. Shripal Dodia has been released on Probation
and, therefore, he is not pressing this appeal qua Appellant No.2 – Sunil
Kumar. Accordingly, the appeal stands dismissed qua Appellant No.2 –
Sunil Kumar as not pressed.
Similarly as far as State appeal i.e. CRA No. 725 of 1996 is
concerned, respondent No. 1 Prakash Chand Sondia is dead. It stands abated
qua respondent No.1 Prakashchand Sondia and it survives for other five
accused persons.
In view of the above, the appeal filed by the accused -appellants
survives only in respect of Appellant No.4- Vinit Kumar; Appellant No.7 –
Hippi @ Satendra; Appellant No.8 – Sunil Sondhiya; and Appellant No.9 –
Navneet. Let necessary corrections be carried out during course of the day.
It is submitted that in CRA No. 150 of 1996 (Sunil Kumar & Ors. Vs.
State of M.P.) there are 09 appellants namely Chandmal S/o Lakhmi Chand
Sondhiya, Sunil Kumar S/o Dr. Shripal Dodia, Sushil Kumar S/o Chandmal
Sondhiya, Vinit Kumar S/o Prakash Chand Sondhiya, Dr. Shripal Dodia S/o
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 29-11-2024
18:25:20
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3 CRA-150-1996
Shikhar Chand Dodia, Prakash Chand Sondhiya S/o Pyarelal Sondhiya,
Hippi @ Satendra, Sunil Sondhiya S/o Chandmal Sondhiya, and Navneet @
Pappu S/o Prakash Chand Sondhiya whereas State of Madhya Pradesh has
filed CRA 725 of 1996 being aggrieved of acquittal of Prakash Chand
Sondiya S/o Pyarelal Sondia, Hippi @ Satyendra, Sunil Sondiya, Navneet @
Pappu, Kailash Chand S/o Shikhar Chand Jain and Prakash Chand S/o
Sondia on account of the fact that respondents No. 1 to 6 in CRA No. 725 of
1996 alongwith five other convicted persons were prosecuted for the murder
of Sudesh Choudhary that occurred on 05.05.1994 at about 10:15 a.m. at
Ajad Chowk inside Panagar Township. They were also prosecuted for
attempting to commit murder of Rakesh (PW-7). It is further submitted that
respondents No. 1 to 4 namely Prakash Chand, Hippi @ Satyendra, Sunil
Sondia and Navneet @ Pappu were convicted by the trial Court for causing
grievous hurt to Rakesh (PW-7) while respondents No.5 & 6 were acquitted
of that charge. It is against the acquittal of respondent No. 1 to 6 pertaining
to the charge of murder of Sudesh Choudhary, the State has preferred this
Criminal Appeal under Section 378 Cr.P.C.
2. It is submitted that, learned trial Court erred in acquitting the
respondents No. 1 to 6 in CRA No. 725 of 1996 (State of M.P. Vs. Prakash
Chand Sondia & Ors.) for an offence punishable under Section 302/149 of
IPC in relation to the murder of Sudesh Choudhary. It is submitted that, the
respondents No. 1 to 4 Prakash Chand, Hippi @ Satendra, Sunil Sondhia and
Navneet @ Pappu have been convicted under Section 326 IPC for causing
grievous hurt to Rakesh whereas accused Navneet and Sunil Sondhiya have
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 29-11-2024
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NEUTRAL CITATION NO. 2024:MPHC-JBP:54842
4 CRA-150-1996
been convicted under Section 326/149 of IPC for causing grievous injuries to
Rakesh alongwith Prakash and Hippi as part of unlawful assembly. They
were also convicted under Section 326 with the aid of Section 148 IPC. It is
submitted that their conviction should have been recorded under Section
302/149 of IPC for causing murder of Sudesh Choudhary.
3. It has come on record and not disputed that in all 11 persons were
tried before tried before the trial Court. Out of 11 persons two of the
respondents in CRA No. 725 of 1996 namely Kailash Chand S/o Shikhar
Chand Jain (Sondiya) and Prakash Chand S/o Shikhar Chand Dondia were
acquitted from the charges whereas 09 persons were convicted, out of which
four under Section 326 or 326/149/148 of IPC and remaining five are
convicted under Section 302/148/149 of IPC.
4. Both these appeals are admittedly filed being aggrieved of judgment
dated 20.01.1996 passed by learned 08th Addl. Sessions Judge, Jabalpur
passed in Sessions Trial No. 619 of 1994.
5. Prosecution story in short is that on 05.05.1994 complainant Rajendra
Kumar was at his shop when at about 10:00 a.m. Santosh Choudhary was
going from Kamania Gate to his house when Shushil Sondhiya in front of
Dr. Dodia’s Dispensary gave a cut to Santosh. After some time, Shushil
again came on his scooter and reached in front of the dispensary of Dr.
Dodia. After some time, voices of abuse were heard when complainant
Rajendra Kumar started looking towards the Dispensary of Dr. Shripal
Dodia. He saw that Chandmal Sondhia and Dr. Shripal Dodia were calling
their sons, namely Shushil Sondhia and Sunil Dodia exhorting them so as to
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 29-11-2024
18:25:20
NEUTRAL CITATION NO. 2024:MPHC-JBP:54842
5 CRA-150-1996
not allow escape of Sudesh Kumar. Sudesh was standing there itself when
Sushil Sondhia and Vinit Sondhia caught hold of Sudesh and then Sunil
Dodia attacked Sudesh with a ballam in his stomach. Ballam was inserted in
the stomach of Sudesh. He had fallen down at that very place soaked in a
blood pool. Thereafter, allegation is that, Shushil Sondhia had caused an
injury with a knife which had hit Sudesh on the right hand side of his back.
Prakash Chand and Kailash Chand had also hit Sudesh with stones and
bricks. Thereafter, Sudesh was lifted by Santosh Kumar, Rajmal, Padam and
Prasanna etc. and they kept him on the platform of the shop and then took
him to the hospital on a handcart. This incident took place at 10:30 a.m.
Later on Sudhesh died due to shock. FIR (Ex.P-8) was registered at the
instance of Rajendra Kumar Jain (PW-5). Injured witness Rakesh is PW-7.
Other eyewitnesses are Santosh Kumar Coudhary (PW-11), Rakesh
Sondhiya (PW-12) and Anand Kumar Modi (PW-14) who had seen the
incident.
6. Shri Manish Datt, learned Sr. Advocate for the appellants in CRA No.
150 of 1996 submits that the main allegation of killing Sudesh Choudhary is
on Sunil Dodia. Sunil Dodia has already been released on probation upon
completion of necessary period of jail sentence. Allegation on Shushil
Sondhia and Vinit Sondhia is of catching hold of Sudesh. It is pointed out
that Shushil Sondhiya is no more. thus, the only person on whom there is
allegation of catching hold of deceased Sudesh is Vinit Sondhia and it will
be evident from the evidence of PW-5 that even Vinit had not held Sudesh as
mentioned by Rajendra Kumar Jain (PW-5) as injury could not have been
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 29-11-2024
18:25:20
NEUTRAL CITATION NO. 2024:MPHC-JBP:54842
6 CRA-150-1996
caused by Sunil Dondia in abdominal part of Sudesh with the help of a
Ballam, if Vinit had caught hold of hands of Sudesh from front. Therefore, it
is submitted that, present is a case of over implication.
7. It is pointed out that, allegation on Sushil Sondhia of hitting Sudesh
with a knife is also not made out inasmuch as there are no injuries of knife
on the right hand side of the back of Sudesh. Similarly, there are no injuries
of hitting Sudesh either with stone or brick as attributed to Prakash Chand
and Kailash Chand. Therefore, it is a clear case of over implication, as far as
allegation of causing homicidal death of Sudesh is concerned.
8. It is further submitted that, Rakesh (PW-7) when came to save his
brother Sudesh then Prakash Sondhia had hit him with a farsa on his left leg
as a result of which he had got a deep wound in his calf muscle. Navneet had
hit Rakesh (PW-7) with a sword on his neck which he had stopped with his
left hand, as a result of which he had suffered injuries on the palm of the left
hand and had sustained cut injuries in his fingers. Satyendra @ Hippi hit him
with an axe on his left leg and Sunil Sondhia had caused injuries on his left
hand with a sharp edged weapon.
9. It is submitted that, Dr. Vinod Kumar (PW-16) was posted as
Assistant Surgeon at Victoria Hospital, Jabalpur on 05.05.1994. At about
11:45 a.m. CMO had admitted Rakesh in this Hospital. His admission ticket
is Ex.P-28 which has a writing in the hand of the Compounder. He had
examined Rakesh and found following injuries on his body:
(i) One incised wound on the lower portion of the left leg measuring 5
x 1.5 inches muscle deep which was excessively bleeding causing cut injurySignature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
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NEUTRAL CITATION NO. 2024:MPHC-JBP:548427 CRA-150-1996
to Fibula bone.
(ii) There was a incised wound on the thumb middle finger and ring
finger measuring 3×1/2 inches muscle deep which was also bleeding.
Thus, reading from this evidence of PW-16, it is submitted that, the
only injury which was fatal and major, is attributed to Prakash Sondhiya
which was caused on the lower portion of the left leg of injured witness
Rakesh (PW-7). Implication of Navneet is over implication. However, in
para-7 of his cross-examination, this witness, PW-16, admitted that, the
injuries on the fingers of the hand and leg were not on the vital part of the
body. Injury No.2 on the thumb, middle finger and ring finger were simple in
nature and if there had been fracture then, those injuries would have been
grievous. He has further stated that injury No.1 was legated and stitched.
That is the only treatment admissible under the facts and circumstances of
the case. He has also stated in para 7 that none of the main blood vessels
was cut. Therefore, it cannot be said that there was excessive blood loss. He
further stated that treatment which was given by him to Rakesh was
sufficient for well being of Rakesh.
In view of such evidence of Dr. Vinod Kumar (PW-16), it is submitted
that, the injuries attributed to Navneet were simple in nature and are not
sufficient to record finding of conviction under Section 326/149/148 of IPC.
10. Similarly, it is pointed out that no injuries were found as have been
attributed to Satyendra @ Hippi or Sunil Sondhiya necessitating their
conviction under Section 326/149 or under Section 326/149 with the aid of
Section 148 IPC.
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 29-11-2024
18:25:20
NEUTRAL CITATION NO. 2024:MPHC-JBP:54842
8 CRA-150-1996
11. It is also submitted that, so far as the State appeal against the
respondent No.5 & 6 namely Kailash Chand S/o Shikharchand Dodia and
Prakash Chand S/o Shikharchand Dodia is concerned, no overt act has been
attributed to them, and therefore, their acquittal does not call for any
interference.
12. It is submitted that as far as Satendra, Sunil and Navneet are
concerned, their conviction under Section 326/149/148 IPC needs to be
altered to one under Section 323 of IPC.
13. It is further argued that, as per the prosecution story there was no
unlawful assembly or premeditation or intention to cause homicidal death of
Sudesh. For constituting an offence under Section 148/149 of IPC, it is
necessary that there should be an unlawful assembly. Hence, the appellants
are innocent and their conviction is not sustainable in the eyes of law.
14. Reliance is placed on the judgment of Supreme Court in the case
of Kashmira Singh v. State of Punjab, AIR, 1994 SC 1651 and referring to
paragraph 3, it is submitted that “Common intention” is to be inferred from
the circumstances particularly the part played by the accused and the
surrounding circumstances namely nature of the weapon used and the injury
inflicted as well as the meeting of the minds among the accused who are
being held constructively liable.
15. Similarly, reliance is placed on the judgment of Supreme Court in
the case Laxmanji & another Vs. State of Gujrat (2008)17 SCC 48 and
reading from the judgment it is pointed out that if some of the appellants who
were unarmed caught hold of the deceased while A-1 who was having a
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 29-11-2024
18:25:20
NEUTRAL CITATION NO. 2024:MPHC-JBP:54842
9 CRA-150-1996
knife inflicted knife blows on the abdomen and thigh of the deceased then
the appellants who held hold of the deceased cannot be attributed any
common intention to murder deceased, therefore, it will be appropriate to
convict them under Section 326 read with Section 34 of IPC.
16. Learned Government Advocate, in his turn, supports the impugned
judgment and in addition prays for allowing the appeal preferred by the
State.
17. After, hearing learned counsel for the parties and going through the
record, it is evident that in the incident that took place on 05.05.1994 the
deceased is Sudesh whereas injured witness is PW-7 (Rakesh Kumar). Eye
witnesses to the incident are PW-7 (Rakesh – injured), PW-11 (Santosh
Kumar Choudhari), PW-12 (Rakesh Sondhiya), WP-14 (Anand Kumar
Modi), PW-5 (Rajendra Kumar Jain) – author of the FIR. PW-6 ( Dr. D.K.
Sakalya) had conducted postmortem.
18. PW-10 (Dr. G.K. Upadhyay) conducted MLC while being posted as
Assistant Surgeon at Primary Health Centre, Panagar on Sudesh who was
gasping for life and also that of Rakesh. He had prepared information memo
to SHO contained in Exhibit P-21 certifying death of Sudesh and had
examined Rakesh vide Exhibit P-22-A and had found an incise wound
measuring 5.5cm x 2.5cm x bone deep on lower part of left leg which was
bleeding caused with a sharp object. He was referred to Victoria hospital for
X-ray and surgery. He had also found that Rajmal S/o Pyarelal Sondhiya
aged 60 years had an abrasion measuring 0.5 x 0.10 cm over the right ear
caused by hard and blunt object, and report of the same is Exhibit P-24-A.
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 29-11-2024
18:25:20
NEUTRAL CITATION NO. 2024:MPHC-JBP:54842
10 CRA-150-1996
19. PW-16 (Dr. Vinod Kumar) while posted at Victoria Hospital,
Jabalpur had admitted Rakesh and prepared admission ticket Exhibit P-28.
On examination, he had found one cut wound on the lower part of left leg
measuring 5″x5.1″ x muscle deep with excessive bleeding. Fibula bone was
cut. Similarly there was a cut wound on the thumb, middle finger and ring
finger measuring 3×1/2 inch x muscle deep which was bleeding. He was
advised for X-ray. He had given general anesthesia to Rakesh and had
ligated those wounds and stitched the wounds. He had plastered those
wounds and prepared a report vide Exhibit P-29. Similarly this witness has
stated that Rakesh remained under his treatment till 13.05.1994. His bedhead
ticket is in five pages. It was written by him and Dr. Upadhyay.
In cross-examination, this witness (Dr. Vinod Kumar) admits that
injury No.2 was simple. None of the main blood vessels was cut. Therefore,
there was no excessive blood loss. Treatment which was given by this doctor
was sufficient to cure the patient and patient was cured.
20. PW-19 (Dr. A.B. Rusia) has mentioned that while posted at Primary
Health Centre, Panagar in the capacity of Assistant Surgeon on 12.05.1994,
he had examined Sunil Kumar S/o Dr. Shripal Dhondhiya, Sushil Kumar S/o
Chandmal Sondhiya who had suffered minor injuries which could have been
caused due to fall. At the time of examination of Sunil and Sushil, he had
found that injuries were contacted within 7-10 days and these injuries were
caused by hard and blunt object. Their reports are Exhibits P-34 and P-35,
respectively.
21. Thus, injuries caused to Sunil Kumar and Sushil Kumar S/o Shri
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
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NEUTRAL CITATION NO. 2024:MPHC-JBP:54842
11 CRA-150-1996
Chandmal Sondhiya reveal that even the appellant party sustained injuries in
the fight which had taken place.
22. As per Exhibit D-1 i.e. case diary statement of Rajendra Kumar S/o
late Hukumchand Jain (PW-5) author of FIR (Exhibit P-8), it is evident that
as per his version, Chandmal Sondhiya and Dr. Sripal Dhondiya had called
their sons Sushil Kumar Sondhiya and Sunil Kumar Dondiya, respectively
asking them to kill Sudesh Kumar. Allegation is that Sudesh was standing
when Sushil Sondhiya and Vinit caught hold of Sudesh and Sunil Kumar had
hit Sudesh with a Ballam in his stomach. Thereafter Sushil Sondhiya had
attacked Sudesh with a knife and Kailash Chand and Prakash Chand Dondiya
had thrown stones and bricks on him.
23. As per the spot map Exhibit P-2, the place of incident is near Jhanda
Chowk, Panagar. In the spot map, it is mentioned that at point No.2 which is
near Shri Hanuman Mandir, Rakesh who had run to save Sudesh, was
attacked whereas at Point No.3 Sudesh was brought and kept after sustaining
injuries. Point Number 4 is the place wherefrom Prabhat S/o Shikhar
Chand Jain had witnessed the incident. Distance between point number 1 to
4 is shown as 53 feet and spot number 3 was at a distance of 26 feet. Spot
Number 5 is the place from where witness Manoj Kumar S/o Gyan Chand
Jain had seen the incident which is shown to be at a distance of 67 feet from
point numbers 1 and 2 and about 40 feet from spot number 3. Point No.6 is
the temple where injured had entered.
24. PW-9 (Prabhat Kumar) is the person who had seen the incident from
spot marked as 4, whereas Manoj Kumar – another eye witness, has not been
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 29-11-2024
18:25:20
NEUTRAL CITATION NO. 2024:MPHC-JBP:54842
12 CRA-150-1996
examined in the Court of law. Lash Panchnama of Sudesh was prepared on
05.05.1994 at Government Hospital, Panagar where Rajesh Katangaha S/o
Surendra Katangaha (PW-4) and 4-5 other persons were present. Dead
body was shown from all sides. Lash Panchnama is Exhibit P-6. He had seen
the injuries. There was three inch deep wound on left ribs. After panchnama,
SHO had taken him to the place of the incident where spot panchnama
Exhibit P-2 was prepared. At the spot, glass bottles and stones were lying.
So also used bombs were also lying, two bombs were freshly exploded, as
they were emanating smell. Material of bomb was seized and it was sealed
vide Exhibit P-12. He is also witness of blood stained soil and normal soil
sealed vide Exhibit P-13. On 11.05.1994 he was taken to Community Hall
where Sunil Dodiya and Sushil Sondhiya were present in handcuffs state.
SHO had interrogated Sunil Dodiya and asked him as to with which weapon
he had attacked Sudesh. When Sunil had said that he had hidden that weapon
in the dispensary, then that was recovered vide memorandum Exhibit P-14.
Thereafter interrogation was made from Sushil from whom a weapon was
seized by the side of the boundary wall of the house, vide Exhibit P-15.
Knife was seized at the instance of Sunil Sondhiya by the side of wall of his
house vide Exhibit P-16. Thereafter seizure memo was made at the instance
of Sunil Dodiya whereby a blood stained Ballam was recovered vide Exhibit
P-17. Thereafter he had taken out a knife like weapon and had given to
police vide Exhibit P-18, which too was sealed and then Sunil Sondhiya had
given like object from the side of his boundary wall, which was sealed vide
Exhibit P-19. They were arrested vide Exhibit P-20.
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 29-11-2024
18:25:20
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13 CRA-150-1996
25. In cross-examination, this witness – PW-9 (Prabhat Kumar) has stated
that when SHO had prepared spot map he was present but he could not make
out as to what is written in the spot map. The spot map was prepared within
10-15 minutes. In paragraph 14, this witness stated that whatever material
was seized, it was seized from the place of the incident. He had not seen the
pieces of bombs. He has denied any recovery from the dispensary. He has
stated that material was seized from the place of the incident. He again
reiterated that no recovery was made from the dispensary. He had signed the
seizure memo at the police station. In paragraph 17, this witness has admitted
that place from where Ballam was seized is a public drainage by the side of
the road. Knife was recovered from the spot near boundary wall of
Chandmal. It is admitted that the place from where the knife was seized, is
an open place and anybody can throw knife in that place. He has admitted
that no identification mark was put on the knife. Another knife too was
recovered from a spot near the boundary wall of Chandmal and similar
knives are available in the market and no identification mark was put on
those knives.
26. PW-5 (Rajendra Kumar Jain) has admitted that he had not given
names of Prakash Chand Sondhiya, Navneet, Hippi @ Satyendra in his
report. Those names were not given as they had not carried out any ‘marpeet’.
In Exhibit D-1, he has not mentioned the names of these three persons. Place
of incident is not visible from his shop. He had seen Sudesh at Chauraha at a
distance about 20-25 feet from the place of the incident. After movement of
10-15 steps from his shop, he had seen the place of the incident. He admitted
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 29-11-2024
18:25:20
NEUTRAL CITATION NO. 2024:MPHC-JBP:54842
14 CRA-150-1996
that house of Chandmal is on Jabalpur-Katni Road which is about 100 yards
away from the place of the incident. He further admitted that when Sudesh
had fallen down then Prakash and Kailash were at a distance of 10-15 steps.
He admitted that there was crowd at the place of the incident. In paragraph
10, this witness has stated that Prakash was armed with a sword and he
cannot say with which weapon Kailash was armed. He could not say as to
from where they had lifted the stones/bricks. He has admitted that he had not
seen that whether the stones and bricks had hit Sudesh or not or had fallen
close to him, is not known to him. This witness has stated in paragraph 11
that Sudesh was caught hold from front.
27. It is evident that if Sudesh would have been caught hold of from
front by Vinit and Sushil, then Ballam could not have been hit in his stomach
from front. It is alleged that when Sudesh had fallen then on his back stab
wound was caused with a knife but as per the report of Dr. D.K. Sakalley
(PW-6), there was one stab wound on left hand side of stomach about 5
inches below the nipple measuring 3.5 inch x 1 inch, with clear cut margins,
ends were sharp. Intestine was visible and actually cut into two parts. There
was one cut injury on the little finger of right hand and thumb of left hand.
Thus, no stab wound has been shown by Dr. D.K. Sakalley on the back of
the deceased to substantiate the allegation of PW-5 (Rajendra Kumar Jain)
that Vinit and Sushil had caused any injury to him.
28. There is specific suggestion to PW-5 as to whether he had heard
conversation between Santosh and Sushil then he has admitted that he could
not say anything about it. In paragraph 13 this witness admits that he cannot
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 29-11-2024
18:25:20
NEUTRAL CITATION NO. 2024:MPHC-JBP:54842
15 CRA-150-1996
say that voices of how many people was heard by him. In paragraph 16, this
witness admits that he has not mentioned in Exhibit P-8 that any knife injury
was caused by Sushil on the right hand side of the back of Sudesh. He cannot
say how it is mentioned.
29. In paragraph 17, this witness admitted that it is not known to him
whether Dr. Shripal had sustained fracture in his head on 21.03.1994 for
which he was admitted in Jabalpur Hospital and from where he was
discharged on 07.04.1994. He could not say that on 04.05.1994, Dr. Shripal
was discharged from Jabalpur Hospital, with a catheter for which he was
earlier admitted due to problem of prostrate.
30. In paragraph 22, this witness has admitted that he had not heard
Chandmal and Shripal exhorting their children but he had guessed that they
were exhorting. In paragraph 23, this witness has stated that when he had
seen from a distance of 50-60 feet, only 2-4 persons were standing, and
remaining road was empty. He has admitted that Prasann Modi and Santosh
Choudhary (PW-11) were not present at the Chauraha. Prasann Modi,
Rakesh and Santosh were standing in front of their shops. He has admitted
that in front of him, except Sudesh nobody was subjected to any marpeet. If
there was any old dispute between them, he cannot say about it.
31. In paragraph 26, he has admitted that a case under Section 107 and
116 is pending against the rival parties. Some persons are in his party and
some persons are in other party. He admits that name of his son is also
involved in that case. A case under Sections 107 and 116 of the IPC is also
pending against this witness. In paragraph 28, this witness has admitted that
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
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he did not mention in the report that through their voices he had identified
Chandmal and Shripal. This witness admits that Pragya Shrivastava had
taken Manoj. He further admits that he had not visited the place where
Sudesh had fallen down.
32. Thus, it is evident from the testimony of this witness that there was
no overt act attributed to three persons, namely, Hippi @ Satyendra, Navneet
@ Pappu and Prakash Chand Sondhiya whose names are not mentioned in
the FIR. He has not alleged any overt act to them. He has admitted old
rivalry between the parties. He has admitted pendency of case under Sections
107 and 116 of the Cr.P.C. against the rival parties. Thus, if the incident took
place at the spur of the moment as admitted by him that only 3-4 persons
were present at the place of the incident and he had not heard any exhortation
on the part of Chandmal Sondhiya and Dr. Shripal, then the theory of
unlawful assembly, is prima facie not made out.
33. PW-7 (Rakesh Kumar) who is the injured witness, has stated that he
is a kirana merchant at Vidya Sagar Ward, Panagar. His shop is inside
Kamaniya Gate, Panagar. Santosh Kumar is his elder brother and his partner.
Sudesh Choudhari was his cousin. He died on 05.05.1994. On that day, at
about 10 AM he was getting an oil tanker open when Santosh came from
Kamaniya gate side and informed that Sushil Sondhiya had given a cut from
his scooter. Thereafter he had seen Sushil Sondhiya coming on his scooter
from Kamaniya gate side and going towards the dispensary of Dr. Shripal.
Dr. Shripal and Chandmal were standing near the dispensary. Santosh had
gone to them to make a complaint. This witness had gone inside his shop.
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After 5-7 minutes he had heard abuses. By that time Santosh had come back
to his shop. When he came out, he saw Sunil Dodiya armed with Ballam,
Navneet Sondiya armed with sword, Prakash armed with a farsa, Sushil
Sondhiya armed with a knife, Satyendra @ Hippi armed with an axe and
Kailash were also present. Sudesh was standing there. He has made similar
averments as made by PW-5 (Rajendra Kumar Jain) author of FIR (Ex.P-8).
He has shown presence of Rajendra Kumar (PW-5) at the place of the
incident. He has admitted that he had not given any intimation to the police
as to who had beaten him with which weapon. He said that since he was in
pain, he did not inform anybody about the incident. He was unconscious for
two days, therefore, he had not given names of any of the assailants.
34. This contention that he was unconscious for two days, is contrary to
the evidence of Dr. Vinod Kumar (PW-16) who admitted Rakesh vide
Exhibit (P-28). Exhibits P-28, P-26 and P-27 do not make a mention of the
fact that Rakesh was unconscious. Thus, this statement is contrary to the
medical reports available on record.
35. In paragraph 5, this witness (PW-7) has admitted that he had not
informed the doctor who were the assailants. In paragraph 6, he has stated
that when he gained consciousness on 07.05.1994, he had not given the
names of the assailants to the doctor. He had given the statement to the
police. He had not read those statement written by police and so also he had
not heard that statement till his deposition in the Court. A suggestion was
given to this witness that his injuries were sustained at earlier point of time,
they were old injuries and therefore, he is trying to falsely implicate as he
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SHARAN SHUKLA
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sustained injuries in an accident prior to the date of the incident.
This witness admitted that he did not remember as to what
conversation had taken place between Santosh, Chandmal and Dr. Shripal.
He admitted that dispensary is not visible from the place of his sitting in the
shop. At the place of the incident, there is a general store and a barber shop
and on the other side there is a shop of Lakhera. Place of the incident is an
open market. He admitted that the place where he was beaten, is a place close
to the shop of a Sindhi and a barber. He alleged that Prakash had hit him
with a farsa. This witness admitted that who had abused whom, is not known
to him. He admitted that when he had seen Sudesh at the place of incident, at
that time he was not surrounded by the accused persons. He had not seen as
to who was standing close to Sudesh. He admitted that the distance between
Sudesh and Vinit was 4-5 steps. Thus, it is evident that from a distance of 4-
5 steps neither Vinit nor Sushil could have caught hold of Sudesh, a fact
which has come in cross-examination of this injured witness Rakesh.
Causing injury with a knife on the body of Sudesh is an exaggeration as
there is no injury of knife on the body of Sudesh. He alleged that Satyendra
had hit him with an axe, but eye-witness PW-5 has admitted that Satyendra
@ Hippi was not involved in the incident. Similarly, it is admitted that
Navneet and Hippi are not named in the FIR.
36. PW-11 (Santosh Kumar Choudhari) is the person to whom Sushil
had given a cut with his scooter. This witness admitted that after the
incident, a case under Section 107/116 of the Cr.P.C. was registered against
him. Rajendra Kumar Choudhari, Subhas Chandra Singhai, Prasanna Kumar
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Modi and 10-11 other persons were implicated. He admitted political
differences between the rival parties. He also admitted that there was a
dispute in regard to enhancement of rent of the shops.
37. PW-12 (Rakesh Sondhiya) has alleged that Prakash Sondhiya had
hit Rakesh on his left leg, causing injury to the calf muscle. Allegation is on
Navneet Sondhiya of trying to attack Rakesh Sondhiya with a sword on his
neck, which Rakesh had stopped and Satyendra @ Hippi attacked on his left
leg with an axe. When Rakesh had run away towards shop of Nayab ji, then,
allegation is that Kailash Dodiya had thrown a bomb from his house. He
admitted that he was also part of the team which had lifted Sudesh, but
denied any suggestion that their clothes were stained with blood. He
admitted that his statements were recorded on 7th as he had reached Panagar
on 6th. He denied a suggestion that on 5th he was arrested along with 20
other persons and, thereafter, bail was given from the Court of Tahsildar. He
admitted that he had received a notice under Section 107 and 116 of the
Cr.P.C. after one month of the incident, but he does not remember the date
on which he had furnished his bail.
38. There are several omissions and contradictions in the evidence of this
witness, inasmuch as, he stated that Prakash Dodiya had not caused any
injury to Rakesh, but said that 2-3 bombs burst at the place of the incident.
His father got injured, but he admitted that this fact is not mentioned in his
case diary statements. This witness in paragraph 20 stated that he had seen
the incident from the shop of PW-5 (Rajendra), whereas Rajendra said that
place of incident is not visible from his shop, but he had to move 10-15 steps
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ahead of his shop to watch the incident. Therefore, it is evident that
testimony of this witness PW-12 (Rakesh Sondhiya) is not trustworthy as an
eye-witness.
39. PW-14 (Anand Kumar Modi) is also not an eye witness inasmuch as
he admits that he was going to Saraswati School to collect result of his
children. He had reached Galla Bazar Chauraha, when he heard noises of
altercation from the side of Jain Mandir. He had gone to the temple on his
scooter when he saw Sudesh lying in a blood pool at chauraha. There are
several contradictions in his case diary statement (Exhibit D-9) and his Court
Statement.
40. Respondents have examined DW -1, Lalbahadur Yadav, headmaster
of Government Senior Buniyadi School, Panagar. He has admitted that
Prakash Chand Jain was Assistant Teacher in his school. He was regularly
coming to the school as results were to be prepared. He proved signature of
Prakash Chand Jain on the attendance register and has shown presence of
Prakash Chand Jain in the school on 05.05.1994 from 10-10:15 AM to 01:00
PM.
41. DW-2 (Rakesh Kumar Jain), is owner of the pan shop whose presence
is shown by PW-7. He has stated that when the incident had taken place at
about 10:00 AM he was in his shop. Sushil came running and entered into
the dispensary of Dr. Shripal as he was being beaten. There was a crowd of
200-250 persons. At that point of time, with a view to save his life, he had
closed his shop. Public was throwing stones on the dispensary. They were
shouting to take out Sushil so that he may be beaten up.
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SHARAN SHUKLA
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42. DW-3 (S.R.Verma) has stated that he was working in Civil Court,
Jabalpur. He proved that he remained posted there from the year 1993 to
19th May, 1994 in the Court of Ms. M.V. Kaur. Chargesheet was filed on
28.5.1994 in Crime No.203/1994. DW-4 (Ramakant Chowksey), again an
employee of CJM Court Jabalpur stated that he was working as reader in the
Court of Smt. N.V.Kaur, 6th Civil Judge, Class-I. He has stated that no copy
of FIR was received in the Court of Ms. N.V.Kaur. DW-5 (Dr.Sadan Yadav)
has stated that he had seen Dr. Shripal on 04.05.1994 at his residence. He
was having catheter and he was lying in the bed. On 05.05.1994, he had also
seen Sunil S/o Dr. Shripal who had swelling on his head and certain
abrasions. DW-8 (Pradeep Kumar Dani) has stated that he had gone to
Panagar on 04.05.1994. On 05.05.1994, at about 10-11:00 AM he had seen
crowd of 1000-1200 persons as Sudesh and Rakesh were involved in a
scuffle over an item which was appearing to be like a ‘gupti’. Rakesh had
stabbed Sudesh with gupti in his stomach.
43. Thus, the evidence of prosecution and defence witnesses reveals that
firstly, it was a free fight. There was an old enmity on account of partibandi.
It has also come on record that huge crowd had gathered there and cases
were registered against rival parties under Sections 107 and 116 of the
Cr.P.C. But prosecution has not made any independent person as witness and
all the witnesses, PW-5, PW-7, PW-11, PW-12 and PW-14 are related to
each other. There was a dispute in regard to fixation of rent of shops.
44. It has also come on record that role attributed to Sushil and Vinit
Kumar is not made out from the medical report given by PW-6 (Dr.
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Sakalya). The main assailant who caused injuries to Sudesh is Sunil Kumar
S/o Shripal who has already completed his sentence and is released on
probation. Hippi @ Satyendra and Navneet are not named in the FIR. No
specific role is assigned to Sunil Sondhiya S/o Chandmal Sondhiya of either
exhorting or assaulting deceased Sudesh. Therefore, conviction of Vinit
Kumar, Hippi @ Satendra, Sunil Sondhiya and Navneet is not sustainable on
the basis of material on record.
45. Therefore, the conviction of appellant No.4 – Vinit Kumar S/o
Chandmal Sondhiya under Section 302/149 of the IPC cannot be sustained
and is hereby set aside. Conviction of appellant No.2 Sunil Kumar Dodiya
S/o Shripal Dodiya under Section 302, 148 of the IPC can be maintained
however, since he has been released on probation and appeal is not pressed
in his behalf, no finding needs be recorded in respect of Sunil Kumar
Dodiya.
46. As far as conviction of appellant No.6 – Prakash Chand Sondhiya,
appellant No.7 – Hippi @ Satyendra Dodiya, appellant No.8- Sunil Sondhiya
and appellant No.9- Navneet Sondhiya under Sections 148 and 326/149 of
the IPC is concerned, PW-5 has admitted that no overt act was committed by
Hippi @ Satyendra and Navneet Sondhiya. Specific role is assigned to Sunil
Sondhiya for causing injuries to PW-7 (Rakesh). PW-5 has not stated
anything about injuries caused to Rakesh. In the FIR (Exhibit P-8), there is
no mention of any of the assailants causing any injury to Rakesh (PW-7).
PW-7 (Rakesh) has falsely stated that he was unconscious and therefore, he
could not give the name of the assailants. This is contrary to the hospital
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record i.e. Exhibits P-26, 27 and 28. However, PW-11 (Santosh Kumar
Choudhari) has made specific allegation on Prakash Sondhiya of causing
injuries to Rakesh (PW-7) with a farsa on his left leg which is corroborated
with the medical evidence. However, Prakash Chand Sondhiya is no more.
Therefore, conviction under Section 326/149 can be maintained only qua
appellant No.6 – Prakash Chand Sondhiya and not against Hippi @ Satendra
Dodiya, Sunil Sondhiya and Navneet Sodiya especially when the presence of
Hippi and Navneet Sondhiya is not mentioned in the FIR. It has come on
record that appellant No.6 – Prakash Chand Sondhiya is no more, hence the
appeal qua Prakash Chand Sondhiya stood abated. , therefore, conviction of
appellant no.7 Hippi @ Satendra, appellant No.8 -Sunil Sondhiya and
appellant No.9 Navneet Sondhiya under Sections 148 and 326/149 of the IPC
cannot be maintained and is hereby set aside.
47. As far as the appeal filed by the State is concerned, it has come on
record that Hippi and Navneet were not named assailants. No specific role is
ascribed against Sunil Sondhiya in relation to Sudesh. As far as Kailash
Chand and Prakash Chand are concerned, there is no evidence that they were
pelting stones on Sudesh. It is settled law that in a free fight, individual act is
required to be seen and there cannot be any conviction with the aid of
Section 148/149 of the IPC. In this behalf, judgment of the Supreme Court in
the case of Mangal Singh v. State of MP 1996 CriLJ 1908 (MP) is to the
effect that when there was a wordy dual and clashing of arms by the parties
resulting into free fight in which both sides suffered injuries, when it cannot
be said that it was an unlawful assembly. Similarly in the case of Kanbi
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Nanji Virji and Others v. State of Gujarat, AIR 1970 SC 219 (222) it is held
that when there was a melee at the time of the incident and two groups were
indulged in free fight resulting in injuries to persons of both the groups and
death of two, if the Court comes to the conclusion that the injuries sustained
by the persons in course of free fight then there is no question of common
object and only those persons who are proved to have caused injuries or
death, can be held guilty of offence individually committed by them. Similar
is the ratio in the case of State of UP v. Jodha Singh and Others, AIR 1989
SC 1822.
48. In view of the preceding analysis and in the light of the ratio of law
laid down in the cases of Mangal Singh, Kanbi Naji Virji and Jodha Singh
(supra), both the appeals i.e. appeal filed by the convicted accused persons
and the appeal filed by the State are disposed of in the following terms:
(i) Conviction of appellant No.4 – Vinit Kumar S/o Chandmal
Sondhiya under Section 302/149 of the IPC is set aside; and
(ii) Conviction of appellant No.7 Hippi @ Satendra, appellant No.8 –
Sunil Sondhiya and appellant No.9 Navneet Sondhiya under Sections 148
and 326/149 of the IPC cannot be maintained and is hereby set aside.
Bail bonds of present appellants are discharged. The case property be
disposed off as per orders of the trial Court. Record of the trial Court be sent
back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
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SHARAN SHUKLA
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AR/ks
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 29-11-2024
18:25:20