Madhya Pradesh High Court
Anshul @ Ashutosh Gajbhiye vs The State Of Madhya Pradesh on 8 January, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:3834
1 CRA-6394-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 8 th OF JANUARY, 2025
CRIMINAL APPEAL No. 6394 of 2023
ANSHUL @ ASHUTOSH GAJBHIYE
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Sunil Kumar Mishra - Advocate for appellant.
Shri Dinesh Prasad Patel - Govt. Advocate for respondent/State.
WITH
CRIMINAL APPEAL No. 5197 of 2023
AJAY MARKAM
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Sunil Kumar Mishra - Advocate for appellant.
Shri Dinesh Prasad Patel - Govt. Advocate for respondent/State.
CRIMINAL APPEAL No. 9108 of 2023
NITESH UIKEY
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Naresh Kumar Sharma - Advocate for appellant.
Shri Dinesh Prasad Patel - Govt. Advocate for respondent/State.
JUDGMENT
As common question is involved in all the Criminal Appeals,
therefore, they are being heard together & decided by this common
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judgment.
2. These appeals are preferred being aggrieved by the judgment dated
31-08-2021 passed by the Sessions Judge, Seoni in ST No. 80/21 by which
the appellants have been convicted for the offence punishable under Sections
304 Part II/34 of IPC and sentenced to undergo RI for 5 years and fine of
Rs. 1000/- and under Sections 323/34 of IPC and sentenced to RI for 1
month and fine of Rs. 100/- respectively for each of the appellants with
default stipulations.
3. In nutshell, the prosecution case before the trial Court was that the
complainant Mohd. Salman resident of village Jamuniya Police Station
Lakhanwada District Seoni, was driver to one Mohd. Karim Ansari. At the
relevant time, he was loading Potatoes, Beet root on Bolero Pickup vehicle
bearing registration No. MP-22G-3810, went from Seoni to Gondia. The
deceased Jameerudeen Ansari was also accompanying him as he was the
relative of the vehicle owner Karim Ansari. Both the persons went to Gondia
Sabzi Mandi and unloaded the potatoes and Beet root and from there they
were returning to Seoni. When they reached the Silwatoll Tax Barrier, the
complainaant overtkaken 3-4 motor-cyclyist and on that heard the voice to
stop but, he did not stop there. After that on a motor-cycle, two persons have
overtaken the pickup and stopped the motor-cycle before the pickup van,
hence, the complainant Salman stopped and parked the vehicle on the side of
the road. After that two other motor-cyclists came and started assaulting
Salman and Jameerudeen with a fists and legs. A boy Ankit Bhalavi came
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and asked the motor-cyclists not to beat them but, the motor-cyclists had
assaulted the victims. Both Salman and Jameerudeen suffered the injuries.
4. On information, patrolling police personnel reached on the spot and
asked about the incident and also asked the persons, who have assaulted the
victims and told their names Ajay Markam and Anshul resident of
Chunabhatti. On information, vehicle owner Karim Ansari and his friend
Jainnul Ansari and Mahmuddin Ansari reached on the spot. Accompanying
them Salman reached the police Station Dundaseoni and lodged the FIR. The
injured/deceased Jameerudeen Ansari was feeling giddiness and he was
brought to District Hospital Seoni for treatment. After a while, Jameerudeen
Ansari expired and on information, the police registered Merg. The post-
mortem over the dead body of Jameerudeen Ansari was conducted. Crime
No. 51/2020 under Sections 302 r/w Section 34 and 323 r/w Section 34 and
under Section 427 of IPC at police Station Dundaseoni was registered. Spot
map was prepared and statements of witnesses were recorded and on 17-02-
2020 and 20-02-2020, the appellants were arrested and on their disclosure,
on 21-02-2020, acquitted co-accused persons Govind Parteti, Ankit Bhalavi,
Anil Meshram and Raja Yadav were arrested and motor-cycle were
recovered and after investigation, the charge-sheet was submitted before the
Chief Judicial Magistrate, Seoni under Sections 302, 323, 427/34 of IPC. On
committal, the case was send to Sessions Court.
5. The trial Court framed charges under Sections 302/34, 323/34 of
IPC. The appellants abjured the guilt and prayed for trial. The trial court
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recorded the statements of prosecution witnesses. Examined the appellants
under Section 313 of Cr.P.C. The appellants have not examined any
witnesses hence, after hearing the parties, passed the impugned judgment
hence, this appeal.
6. Learned counsel for the appellants- Mr. Sunil Kumar Mishra and
Mr. Naresh Kumar Sharma submits that no eye-witness was examined and
trial court in paragraph-63 of its judgment has clearly stated that the incident
happened in two places whereas the original case was that the incident
happened near Toll Barrier and has stated that in paragraph-66 of judgment
the trial Court has concluded that three appellants were arrested by the police
but, from the arrest memo, it is clear that on the next day i.e. 17-02-2020,
these appellants were arrested and witness has not stated that the appellants
were apprehended from spot and no injury were caused to Mohd. Salman
and no medical examination of Salman has been produced and the injuries
suffered by the injured were not of such nature that it can be said that the
injuries caused to the deceased were caused by hand and fists.
7. Learned counsel for the appellants also submits that no
identification parade was conducted. On the basis of that witness have
identified them in the Court, the trial Court has convicted the appellants.
Thus, as per prosecution case itself, Ankit Bhalavi was the person who
intervened and stopped the assailants not to beat the deceased/complainant
but, the police had also made him accused though, he has been acquitted by
the trial court thus, the Investigating Agency has not properly investigated
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the case and trial Court wrongly convicted the appellants. The conviction
cannot be sustained. Hence, the appellants be acquitted of charges and be
released forthwith.
8. Learned counsel Shri Dinesh Prasad Patel appearing on behalf of
State submits that there is named FIR, the appellants were apprehended on
the spot by the patrolling police and FIR was registered and after due inquiry
they were arrested. No fault can be found with the judgment, no indulgence
is required and the appeal be dismissed.
9. Heard the parties and perused the record.
10. First of all to satisfy the death of victim Jameerudeen caused in
the incident on 16-02-2020, the witness Salman (PW-1) stated that the
assailants have assaulted the victim and him while they overtook the motor-
cyclists and after incident the victim was brought to hospital, the deceased
died. This fact is further supported by Mahmudeen Ansari (PW-2), Karim
Ansari (PW-3). Dr. Srikrishna Surothia (PW-4) stated that on 17-02-2020, he
conducted the autopsy over the dead body of Jameerudeen s/o- Nizamudeen.
On examination, he found that at the time of post mortem, the blood was
coming out from the nose and in the right shoulder, there was bruise
measuring 5cms x 2 cms and below that, a bruise was found of the same size
in the right side of neck 1cm x 1cm, on opening the body of the deceased.
There was fracture in 8th and 9th rib. There was inflammation in the lungs.
Right lung was ruptured and in the left lung there was inflammation. In
parion parcacium blood was deposited and in the opinion of doctor the
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deceased died due to cardio-respiratory failure due to rupture of left lung and
excess bleeding from that. Thus, it is clear that the deceased suffered the
injuries and died in the incident. Thus, from the above discussion, it is clear
that the deceased suffered injuries and two ribs were fractured and it appears
that the ribs have punctured the lungs and due to excess bleeding the
deceased died. Thus, it is clear that the death is homicidal.
11. On the point of role of the appellants and to ascertain that the
appellants were involved in the case, there is named FIR (Ex.P/1), in which,
there is mention of motor-cycle No. MP-22-MA- 7458 and also mention that
assailants have mentioned there name Ajay Markam, Anshul, and Nitesh
Uikey and on this basis and on recovery of motor-cycle MP-22-MA- 7458
have arrested the appellants. On their interrogation, other accused persons
have been arrested.
12. Mohd. Salman (PW-1) is the injured eye-witness of this incident.
In his statement, he stated that at the time of incident, after loading potatoes
and Beet-root, he went to Seoni to Gondia and after unloading the
vegetables, he was returning from Gondia to Seoni at 5:00- 5:30 PM, when
he reached near Silwatoll Tax Plaza, 4 motor-cyclists were going ahead of
him and he has given horn but, they have not given the side. After awaiting a
while, he overtook them and after overtaking the motor-cyclists, stopped and
broke the glass of pickup van. Jameerudeen was also with him. Motor-
cyclists have taken the mobile and purse. The assailants lay him down on
road and assaulted them. The motor-cyclists have called someone one mobile
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phone and said that they are bringing the persons to whom they have to
murder and they carried them to Chunabhatti Seoni and someone has called
Karim Bhai and Karim Bhai reached there. From there, he brought
Jameerudeen to police Station Dundaseoni and there Jameerudeen died. FIR
was lodged by him. Merg. intimation was registered by him and on that
Ex.P/3 was registered. Spot map was prepared before him. Nuksani
Panchanama (Ex.P/8) was also prepared and his statement was recorded
under Section 164.
13. In cross-examination, he has clearly stated that on guess and
estimation he is saying that, the person present in court were motor-cyclists,
who have assaulted them. He further stated that person present in the court
and photographs annexed in the arrest memo, he identified and these persons
were involved in the incident. In cross-examination, this witness has further
stated that the police has shown the accused persons and on that he identified
the accused persons and except the identification, made in the above manner,
no identification was held by the police and further admitted that if the police
has not arrested the accused persons, he would not have identified the
accused persons. This witness in paragraph-27 of the cross-examination has
admitted that he cannot tell the number of the motor-cyclists, who have
overtaken him. This witness further stated that he has not disclosed the name
and number of the persons to the medical officer about the assailants. This
witness in paragraph-24 of the cross-examination has also admitted that in
police station, the persons of both communities gathered and the atmosphere
were charged and the persons of their community were making pressure on
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the police that the case be investigated and on that pressure the police has
registered the case in haste.
14. This witness further stated in paragraph-38 that he cannot identify
the police officers, who were on patrolling duty and even cannot tell the
names of those accused persons. In paragraph-42 of cross-examination, this
witness has further stated that he has not disclosed the name of accused
persons in his FIR (Ex.P/1), Merg intimation (Ex.P/2) and document
(Ex.P/3) and he has not mentioned the number of motor-cycle of assailants,
as he was not having the knowledge of name and number of the vehicle as he
was fearful, he only signed the documents from Ex. P/1 to Ex.P/3.
15. Thus, when the veracity of this witness is tested on touchstone of
the cross-examination, it is clear that he has not lodged the FIR by name and
he has not mentioned the vehicle number of the assailants. When the
appellants were arrested, they were shown to this witness and on that basis,
he has identified the accused in the court.
16. Furthermore, this witness has been crossed on the point of Ex.D/1
and statement recorded under Section 164 of Cr.P.C. In Ex.D/1, also marked
as Ex.P/9, it has been mentioned that the assailants have asked their names
and after that started assaulting them and they also called one Subham
Baghel, where a silver coloured Swift Dzire Vehicle was parked and
assailants have said that Subham Bhaiya’s vehicle is parked and their vehicle
was also parked there and Subham asked them to kill this witness and the
victim and after that they have assaulted them and further stated that police
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personnel have arrested 8-10 boys and brought to the police station. Thus,
there is material improvement recorded in the statement under Section 164
Cr.P.C. Furthermore, in the FIR, the appellants have been mentioned as
assailants whereas witness Salman (PW-1) has clearly stated that he has not
named any person nor number of the vehicle. Furthermore, when the incident
happened at 6:30-7:00 PM, the deceased was brought to the police station
and the deceased died in the hospital. Thus, what was the reason that after
recording the merg, the FIR was lodged on 17-02-2020 at 12:10 AM. Thus,
the FIR and the merg intimation becomes doubtful and the statement of this
witness, looking to Ex.P/9 and Ex.D/1 and statement before the Court is not
reliable witness.
17. Furthermore, the witness Mahmuddin Ansari (PW-2) stated that
he was not on spot when incident happened but, as per the prosecution case,
he reached on the spot after someone has called him on telephone. This
witness has stated that the police personnel of patrolling team arrested 2-3
persons.
18. In the same way, Mohd. Karim Ansari (PW-3) tried to be as eye-
witness but, as per statement he reached on the spot when Salman called him
on telephone and on return call, he called Salman and phone was not replied
and stated that after sometime, the Cheetah Patrolling Police on Cheetah
motor-cycle reached on the spot and arrested some persons and brought them
to police station and also brought the complainant Salman and deceased
Jameerudeen and they returned to the police station in police vehicle whereas
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the investigating officer Amit Kumar Dangi (PW-6) has clearly stated that
when he visited the spot, he found a broken golden coloured spectacles and a
pair of shoes and phone of MI Company was recovered but, no vehicle was
recovered from spot. In paragraph-17, this police officer clearly admitted that
injured Salman and Jameerudeen reached the police station by their own
pickup vehicle and from that pickup vehicle they also reached the hospital
and constable of the patrolling party were accompanying them but, he is not
remembering the names of constables of patrolling party. Thus, it is clear
that this witness on the material point is not speaking the truth. Furthermore,
this witness Mohd. Karim (PW-3) has also admitted in paragraph-13 that he
has not seen the faces of persons ,who were assailants.
19. Thus, it is clear that Salman (PW-1) has not identified the accused
persons. In the same way, Mohd. Karim (PW-3) has not identified the
accused persons. In the same way, Mahmudeen Ansari (PW-2) has also not
stated that appellants were involved in this case and he has not identified the
accused persons before the Court.
20. Amit Kumar Dangi (PW-6) has stated that on FIR by Mohd.
Salman (PW-1), he registered the merg. intimation Ex.P/2 and Ex.P/3 on the
report of Salman. He registered the crime against the appellants ( Anshul
Gajbhiye, Ajay Markam and Nitesh Uikey) for murder of Jameerudeen. He
also prepared the spot map. This witness has further stated that he prepared
the Nuksani Panchnama of Vehicle (Ex.P/8) on 17-02-2020. From Ex.P/8, it
is clear that Nuksani Panchanama was prepared in the campus of
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Dundaseoni. Thus, it is clear that the deceased and the complainant went to
police station on their own vehicle and they were accompanied by the
constables of patrolling team but, those constables have not been examined
by the prosecution. In that situation, adverse inference shall be drawn against
the prosecution.
21. Furthermore, witness Amit Kumar Dangi (PW-6) in paragraph-15
of his cross-examination has stated that when Jameerudeen and complainant
Salman reached at police station, it was 6:00- 7:00 PM and he immediately
sent them for medical examination. Thus, if the appellants were brought to
the police station by the patrolling party, this police officer must have
mentioned in the FIR but, this fact has not been mentioned that the assailants
were brought by the complainant in the police station.
22. Amit Kumar Dangi (PW-6) stated that on 17-02-2020 he arrested
Anshul @ Aushtosh Ghajbhiye and interrogated him. In that appellant have
disclosed regarding the motor cycle MP-22-MA-7458 and mobile handset
and on his disclosure, motor-cycle No. MP-22-MA- 7458 and handset was
recovered in the presence of Brajesh and Poonam and Seizure Memo
(Ex.P/15) was prepared. This witness has further stated that he arrested
Anshul @ Ashutosh Gajbhiye, Ajay Markam and Nitesh Uikey.
23. In paragraph-17, this witness has stated that the siezure of the
motor-cycle was made from Chunabhatti and the witnesses Brajesh and
Poonam are not residents of Chunabhatti. He has not organised Test
Identification Parade.
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24. It is worth mentioning that if the appellants or any one of them
was arrested and formally or informally were brought by patrolling team to
the police station with motor-cycles, it was clear that quarrel had taken place
and these assailants has assaulted the complainant Salman(PW-1) and
Jameerudeen obviously, the police have arrested these persons just after
lodging of the FIR (Ex.P/1) that was lodged on 17-02-2020 at 12:10 AM and
the motor-cycle have been seized from the police premises and not from the
village Chunabhatti. Furthermore, the police constables who were the
members of patrolling team (Cheetah Patrolling team ) have not been
examined that they caught hold these appellants and brought them to police
station instead of being arrested instantly on 17-02-2020. The appellant-
Anshul Gajbhiye was arrested on 14:30 hours and the place of arrest is
mentioned in the arrest memo, village Chunabhatti and the motor-cycle
named in FIR was also seized from the village Chunabhatti, house of Anshul
Gajbhiye. Thus, this contradict the theory that from spot, the appellants were
brought to the police station and on that basis they were named in the FIR
and on disclosure, other accused persons were identified. 2-3 persons were
arrested and brought to the police station.
25. Thus, eye-witness Salman(PW-1) has improved his statement and
stated that he has named the accused persons and he was in the knowledge of
name of accused persons and it is also not proved that the constables of
patrolling team caught hold the appellants and brought them to the police
station and that basis names of other accused persons were disclosed.
Furthermore, Salman (PW-1) is not fully reliable witness. There are material
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contradictions in his FIR, statement under Section 164 Cr.P.C and the
deposition recorded before the trial Court. Furthermore, it also appears that
after incident, the persons of both the communities gathered in the police
station and made pressure and on that pressure, FIR was lodged. The police
has not organised any Test Identification Parade.
26. Thus, in these circumstances, the appellants are entitled for benefit
of doubt. It is found that the prosecution has failed beyond reasonable doubt
that the appellants have assaulted the deceased Jameerudeen and as a result
of which, Jameerudeen died. In the same way, it is also not proved beyond
reasonable doubt that the appellants have caused simple injuries to
complainant Salman and hence, the appellants- Anshul @ Ashutosh
Gajbhiye, Ajay Markam and Nitesh Uikey are acquitted of the charges under
Section 304 Part-II/34 and Section 323/34 of IPC and consequently,
conviction and sentence passed by the trial Court are quashed. The
appellants be released forthwith, if not required in any other case.
27. The order of trial Court regarding the case property be
maintained.
(DEVNARAYAN MISHRA)
JUDGE
PG
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