Khilan & Anr vs State Of M.P

2. We now proceed to give the reasons.

4. We may briefly notice the salient facts involved in this appeal. It was the case of the prosecution that eight accused persons, namely, Prema, Khilan, Gaindalal, Sangramsingh, Durzan, Kashi Ram, Gyarsia Lal and Bihari had formed an unlawful assembly. They armed themselves with deadly weapons and assaulted Toophan Singh, in furtherance of their common object to kill him, in which they succeeded. It was stated by the complainant, Prabhulal (PW2) that on 8.12.1991 when he had gone to the fields to answer a call of nature, he heard the cries of his Mama, Toophan Singh, shouting "mar diya-mar diya". He went running to the spot and saw that accused Prema, Gainda and Khilan armed with farsas and Sangram armed with luhangi along with Durzan, Kashi, Gyarsia Lal and Bihari armed with lathis, were assaulting his Mama, Toophan Singh. As a result of the assault Mama, Toophan Singh, fell on the ground. When he tried to intervene the appellant, Prema exhorted the other accused to kill the complainant also. All the accused tried to catch him but he ran away and reached his home. After hearing 2 about the assault from the complainant (PW2), Phool Singh (PW7) and two other persons, Meharban and Rajaram went to the spot. However, the assailants ran away. On an examination of Toophan Singh, they found that he had died. He had received deep cut wounds over his head and blood was oozing out of them. Sushila Bai who was working in the field is said to be an eye-witness of the assault. It is also the case of the prosecution that the Prema and his sons had a dispute over land with the deceased and his family. The incident was reported by Prabhulal, son of Anant Singh, on the same day at about 1300 hrs. On the information being received, Crime No.108/91 was registered at Police Station, Kachnar under Sections 147, 148, 302/149 IPC. Upon conclusion of the investigation charge sheet was filed and all the eight accused were sent up for trial. All the accused pleaded not guilty. They all took up the plea that due to enmity, they have been falsely implicated.

5. Upon conclusion of the trial the Addl. Sessions Judge acquitted Durzan, Kashi Ram, Gyarsia Lal and Bihari of all the charges. Prema, Gainda Lal, Khillan and Sangram Singh were convicted of murder of Toophan Singh under Section 302/34 and sentenced to life imprisonment and Rs.500/- each as fine. It was further directed that in case of default they would undergo a further sentence of two months R/I. 3

7. The High Court upon re-appreciation of the entire evidence upheld the conviction and sentence of the appellants, Prema, Khillan, Gainda and Sangram Singh. However, the conviction and sentence of Sangram Singh was set aside and he was duly acquitted.

The Trial Court was of the opinion that Prabhulal (PW2) had merely stated that the deceased usually consumed tea only but there was no statement to the effect that on that particular day the deceased had not eaten anything else. The Trial Court thereafter notices the evidence of Sushila Bai (PW9). It is noticed since she did not support the prosecution case she had been declared hostile. The Trial Court disbelieved the witness since 5 incised injuries had been caused on the body of the deceased which could only have been caused by a sharp weapon. Sushila Bai had said that Baba had assaulted the deceased with a lathi. The defence version that Baba had assaulted Toophan, because Sushila Bai had been found in a compromising position with the Baba, was disbelieved as no question was put to her on behalf of the accused when she was examined as PW 9. The Trial Court also concludes that the injuries on the deceased were not the result of the tractor turning turtle on he was being carried. According to Dr. Natwar Singh (PW1), there were five incised injuries on Toophan Singh. Only injury No.6 could have been caused by a blunt weapon. The Trial Court also noticed that the weapons of offence had been recovered at the instance of the accused. On the basis of the above the Trial Court concluded that the four accused namely Prema, Khillan, Gainda and Sangram Singh had inflicted the fatal injuries on the deceased. 9

22. For the reasons stated above, the appeal is dismissed. 15 Criminal Appeal No. 1540 of 2008 -

1. We have earlier noticed in the judgment rendered in Criminal Appeal No.1540/08 that the evidence of the prime witness, Prabhulal (PW2) in relation to Sangram Singh was inconsistent and contradictory in nature. There was a direct conflict in the evidence given by Prabhulal and Shri Lal (PW4). There was also discrepancies in the statement made in Court and the statements made earlier during investigation as also in the report Ex.P2. Consequently the High Court has expressed an opinion that the presence and participation of Sangram Singh in the crime is doubtful. This being a possible and a plausible view would not call for any interference in exercise of our jurisdiction under Article 136 of the Constitution of India.

2. In view of the judgment passed in Criminal Appeal No.1348 of 2007, this appeal is also dismissed.