Dhanesh Gujrati vs State Of Madhya Pradesh

Ajay Kumar Nirankari, J

The present appeal has been filed by the appellant before this Court under section 374 (2) of the Criminal Procedure Code, against the judgment dated 26.07.2010 passed by learned Special Judge (Atrocities), District Rewa(MP) in Special Case No.38/2009, whereby, the appellant has been convicted under Section 302 of IPC and sentenced to undergo RI for life imprisonment and fine of Rs.1,000/- with default stipulation.

Brief facts necessary for adjudication of the present case are that on 11.06.2009 at about 6:30 PM upon receiving telephonic information from an unknown person regarding a beating incident at Kabadi Mohalla, Inspector U.C. Tiwari reached the spot and found an unidentified male lying injured in front of a liquor shop. He immediately shifted the injured to S.G.M. Hospital, Rewa for medical treatment, where, upon examination the doctor declared him dead. The said information was recorded in the Rojnamcha. On the same day at about 8:30 PM, Vrindawan, uncle of the deceased Bhagwandas, lodged Marg Intimation No. 52/09 alleging that the deceased was his nephew who used to reside with his son Santosh, his parents having expired and his wife having deserted him. It is further alleged that at about 7:00 PM he received information regarding the death of the deceased at Kabadi Mohalla. On reaching there, he came to know that the deceased had been assaulted by Dhanesh Gujrati, Raj Bahadur Loniya and Lalli Loniya, as a result of which he succumbed to the injuries. Consequently, FIR bearing Crime No. 364/2009 was registered under Sections 302 and 34 of IPC against the present appellant and the co-accused namely Raj Bahadur Loniya and Lalli Loniya, and the investigation commenced. During the course of investigation, the police prepared the spot map, conducted Lash Panchnama, recorded statements of witnesses, seized the clothes of the deceased and other articles, arrested the accused persons and got the post-mortem examination conducted. As per the post-mortem report, the cause of death was due to ante-mortem injuries to the liver and spleen. Upon completion of investigation, the police filed a charge-sheet against all the accused persons under Sections 302 and 34 of IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act before the JMFC, District Rewa (M.P.), alleging that the accused persons, with the knowledge that the deceased belonged to the SC/ST community, assaulted him with common intention to cause his death.

Learned JMFC District Rewa (MP) after committal forwarded the matter to the learned Special Judge (Atrocities) District Rewa (MP) for commencement of trial, because trial has to be concluded by the learned Special Judge Atrocities which was registered as Special Session Trial No.39/2009 (State of M.P. Vs. Dhanesh Gujrati & Ors).

The learned Special Judge, District Rewa (MP) has framed the charge of Section 302/34 IPC and Section 3 (2) (5) of prevention of Atrocities Act on the accused persons. The accused persons refuse to accept the charges and wished to face the Trial.

In order to substantiate its case, the prosecution examined twelve witnesses (PW-1 to PW-12) and exhibited nineteen documents (Ex. P-1 to Ex. P-19). In rebuttal, the accused persons did not examine any defence witness. However, during the cross-examination of PW-9, they exhibited documents Ex. D-1 and Ex. D-2 in support of their defence. In their statements recorded under Section 313 of Cr.P.C., the accused persons denied all the allegations, pleaded innocence, and stated that they have been falsely implicated in the present criminal case.

The learned Trial Court, after appreciating the entire oral and documentary evidence available on record, held the appellant guilty of committing the murder of deceased Bhagwandeen, while acquitting him of the charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Vide judgment dated 26.07.2010, the appellant was convicted under Section 302 of IPC and sentenced to life imprisonment with a fine of Rs.1,000/-, and in default of payment of fine, to undergo further rigorous imprisonment for six months. The co-accused persons, namely Raj Bahadur Loniya and Lalli Loniya, were acquitted of all the alleged offences.

Against the impugned judgement the appellant preferred instant appeal.

Learned counsel for the appellant assailed the impugned judgment dated 26.07.2010 passed by learned trial court and contended that the appellant is an innocent person who has not committed the alleged offence and has been falsely implicated in the present case. It is argued that the learned trial court, without properly appreciating the oral and documentary evidence available on record, committed grave illegality and jurisdictional error in holding the appellant guilty and convicting him for the alleged offence. It is further submitted that on the same set of facts, allegations, and evidence, the co-accused persons have been acquitted. Learned counsel for the appellant also contended that PW-2 has materially improved his version before the Court to implicate only the appellant, particularly when the co-accused were acquitted. In support of the said contention, learned counsel for the appellant placed reliance on the judgment of the Hon’ble Supreme Court in (Javed Shaukat Ali Qureshi v. State of Gujarat ), reported in 2023 SCC On Line 1155.

Learned counsel further argued that PW-11 Bablu and PW-12 Kukku @ Satish, who were cited as eye-witnesses did not support the prosecution case. It is also submitted that PW-5 Santosh Saket, son of the deceased did not personally know the appellant and identified him in the Court only on the basis of a photograph published in a newspaper. Additionally, PW-1 and PW-3, who are nephews of the deceased also failed to support the prosecution story and were declared hostile.

Learned counsel for the appellant further submitted that the appellant has been convicted solely on the testimony of PW-2 Veeru Singh, which suffers from material contradictions, omissions, and improvements. It is contended that in his statement recorded under Section 161 Cr.P.C, PW-2 stated that the deceased was assaulted by the appellant along with co-accused Lalli and Raj Bahadur, whereas in his deposition before the Trial Court, he stated that only the appellant assaulted the deceased and when the appellant attempted to flee, the co-accused Lalli and Raj Bahadur apprehended him and handed over to the police authorities. Such material inconsistency, according to learned counsel, renders the testimony of PW-2 unreliable. It is further argued that PW-8 Dr. S.K. Pathak, who conducted the post-mortem examination of the deceased, opined in the post-mortem report (Ex. P/12) that the cause of death was shock resulting from injuries to the spleen and liver. However, in his deposition before the trial court he stated that on external examination he found two lacerated wounds on the left epigastric region measuring 1.2 cm × 0.25 cm, deep to the skin, and one abrasion on the left side of the chest measuring 2 cm × 1 cm. On internal examination, he found the spleen and liver to be ruptured. Learned counsel further submitted that the deceased was a habitual drinker and, due to excessive consumption of alcohol, his liver was enlarged. At the time of the incident the deceased was allegedly in an intoxicated condition and may have fallen on a hard object on his abdominal side, resulting in rupture of the liver and spleen, which led to his death. It is also pointed out that the prosecution failed to examine Rakesh Singh, the Manager of the liquor shop, and Pappu Patel, who were present at the time of the incident, thereby withholding material witnesses. On the aforesaid factual and legal submissions, learned counsel for the appellant prayed for allowing the appeal and for setting aside the judgment of conviction.

Per contra, learned Government Advocate submitted that the learned trial court has not committed any illegality or jurisdictional error in passing the impugned judgment. It is contended that the judgment is well-reasoned, cogent, and based upon proper appreciation of the material available on record. Learned Government Advocate further submitted that the co-accused Raj Bahadur @ Bahadur Loniya and Lalli @ Anandi Loniya were acquitted not on the same footing as the appellant but solely for the reason that no material was available on record to establish that they had assaulted the deceased or had acted in furtherance of the common intention of the appellant. It is further argued that PW-2 Veeru Singh is an independent eye-witness to the incident and was present at the place of occurrence. As per his deposition before the trial court the deceased was assaulted by the present appellant by kicks and fists, resulting in multiple injuries on his body, which ultimately led to his death. The learned Trial Court found his testimony to be credible and trustworthy and rightly relied upon the same. He further submitted that the grounds raised by the appellant are based merely on surmises and conjectures and do not warrant any interference by this Court. Accordingly, it is prayed that the appeal be dismissed and the impugned judgment be affirmed.

Heard the learned counsel of the parties at length and peruses the record.

Now, the sole question before this Court for adjudication is whether the learned Trial Court is justified in holding the appellant guilty for the commission of offence punishable under Section 302 of IPC and in awarding the sentence of life imprisonment.

The prosecution examined total eleven prosecution witnesses to substantiate its case. PW-8 Dr. S.K. Pathak, the medical expert, conducted the post-mortem of the deceased. As per the post-mortem report (Ex. P-12), on external examination he found two lacerated wounds on the left epigastric region measuring 1.2 cm × 0.25 cm, deep to the skin, and one abrasion on the left side of the chest measuring 2 cm × 1 cm. On internal examination, the spleen and liver were found to be damaged. According to his opinion, the deceased died due to shock resulting from injuries to the spleen and liver. In his cross-examination, on being suggested, he admitted that the liver of the deceased was enlarged by about 2 cm and that such injuries could also be caused if a person falls on a hard object on the abdominal side.

As per the prosecution case, PW-11 Bablu and PW-12 Kuku @ Satish were cited as eye-witnesses to the incident. However, during their deposition before the learned Trial Court, they did not support the prosecution version and were, therefore, declared hostile.

PW-1 Brindavan, uncle of the deceased, in his deposition admitted that he received information regarding the death of the deceased for the first time from the SHO of City Kotwali and he was not informed as to who had assaulted the deceased. PW-5 Santosh, son of the deceased admitted in his deposition that he identified the appellant only on the basis of a photograph published in a newspaper. In his cross-examination, he stated that he was engaged in decoration and DJ work at the shop of Rajaram and on the date of the incident, he was present at a marriage function of Rajaram at village Chirhula; therefore, he did not witness the incident.

PW-3 Raju @ Rajendra and PW-4 Baijnath, who are close relatives of the deceased also did not support the prosecution story. In their examination-in-chief, they stated that they were unaware that who had killed the deceased Bhagwandeen and, consequently, they were declared hostile by the prosecution.

It is an admitted position that the deceased died in front of a liquor shop. Rakesh Singh, Manager of the said liquor shop was present there at the time of the incident, and Pappu Patel an independent witness was consuming liquor at the spot. However, the prosecution neither recorded their statements during investigation nor examined them before the learned Trial Court.

PW-2 Veeru Singh is projected as the star witness of the prosecution case and the conviction of the appellant is primarily based on his testimony. In his examination-in-chief, PW-2 stated that the incident occurred on 11.06.2009, when the appellant and the deceased were consuming liquor. He deposed that a sudden quarrel took place and the appellant assaulted the deceased by kicks and fists, as a result of which the deceased sustained injuries and fell down. He further stated that when the appellant attempted to flee from the spot, the co-accused Raj Bahadur and Lalli apprehended him and handed him over to the police authorities.However, during investigation, the police recorded the statement of PW-2 under Section 161 Cr.P.C., wherein he stated that the deceased was assaulted by the present appellant and the co-accused Lalli and Raj Bahadur were also present at the place of occurrence along with the appellant. Thus, there is a material contradiction and improvement in the testimony of PW-2, inasmuch as initially he attributed the quarrel and assault to all the accused persons, whereas in his deposition before the trial court, he shifted the entire role of assault solely upon the present appellant. On certain aspects, the prosecution itself declared PW-2 hostile.

In Javed Shaukat Ali Qureshi v. State of Gujarat (supra), the Supreme Court has held that on the same set of facts and allegations, when similarly placed co-accused have been acquitted, conviction of another accused on the same evidence is not sustainable. Relevant para i.e 15 is reproduced as under:-

“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.”

In view of the aforesaid discussion, it is clear that on the same set of facts, allegations, and the very deposition of PW-2 co-accused Raj Bahadur and Lalli were acquitted by extending them the benefit of doubt. The prosecution having failed to establish their participation in the alleged offence beyond reasonable doubt. Moreover, the learned Trial Court after considering the post-mortem report (Ex. P-12), recorded a finding that the deceased fell down on his back and died due to shock resulting from injuries to the liver and spleen. However, on a bare perusal of Ex. P-12 as well as the deposition of PW-8 Dr. S.K. Pathak, it is evident that there were only two injuries one on the abdominal region and the other on the chest and no injury was found on the back of the deceased.

The said finding recorded by the learned Trial Court is, therefore, not justifiable, particularly in view of the admission made by PW-8 in his cross-examination, wherein he stated that the injuries to the chest and abdomen could be caused if the deceased had fallen on his abdominal side, especially when the liver of the deceased was found to be enlarged and susceptible to rupture. Consequently, the medical evidence does not support the conclusion drawn by the learned Trial Court that the deceased fell on his back.

Considering the overall material available on record, we have no hesitation in holding that the learned Trial Court committed a grave illegality in convicting the appellant and awarding the sentence of imprisonment. We find substantial force in the grounds raised in the appeal as well as in the submissions advanced on behalf of the appellant at the time of final hearing.

Accordingly, the appeal filed by the appellant stands allowed. The impugned judgment dated 26/07/2010 passed by the learned Trial Court is hereby set aside. The appellant is acquitted of the charges. The Jail Authorities are directed to release the appellant forthwith, if he is not required in connection with any other criminal case.

The appeal is, accordingly, disposed of.