Research › Search › Judgment

Madhya Pradesh High Court · body

2002 DIGILAW 676 (MP)

Murarilal Dubey v. State of M. P.

2002-07-17

CHANDRESH BHUSHAN

body2002
JUDGMENT 1. Since the Criminal Appeal No.4 of 1999 (Rukum Singh v. State of M.P.), Criminal Appeal No. 28 of 1999 (Mayaram and another v. State of M.P.) and Criminal Appeal No. 30 of 1999 (Dev Singh and another v. State of M.P.) also arise out of the same judgment dated 21.12.1998 pronounced by Fifth Additional Sessions Judge, Shind, being appeals by other co-accused, they were heard with this appeal No. 14 of 1999 and this judgment shall govern those appeals also. 2. Aggrieved by the judgment dated 21.12.1998 pronounced by the Fifth Additional Sessions Judge, Bhind, convicting them for offences punishable under section 148 of IPC and section 307 read with section 149 of IPC and sentencing each one of them with rigorous imprisonment for one year for the offence punishable u/s 148 of IPC and with rigorous imprisonment for seven years together with fine of Rs. 5,000/- for the offence punishable u/s 307 read with S. 149 of IPC and in case of non-payment with further rigorous imprisonment of five months, this criminal appeal No. 14 of 1999 has been preferred by the appellant, Murarilal, Criminal Appeal No.4 of 1999 by the appellant Rukum Singh, Criminal Appeal No. 28 of 1999 by appellants Mayaram and Ramautar, and Criminal Appeal No. 30 of 1999 by appellants Dev Singh and Rakesh. Appellant Murarilal in his Criminal Appeal No. 14 of 1999 has also challenged hi s conviction and sentence for the offence punishable under section 25 (1B) of the Arms Act. 3. The prosecution story was that on 28.3.1996 injured Jitendra Singh (PW 4) accompanied by his brother Tejendra Singh (PW 9) and some other persons viz., Pan Singh (PW 5) etc. were returning from Pavai Mata Fair on a tractor driven by injured Jitendra Singh himself. When that tractor reached Pithanpura Chouraha, a jeep bearing registration No. MP06-7554 coming behind from the same direction tried to overtake but as there was another tractor, ahead of this tractor, injured Jitendra Singh could not give side to it. Thereafter the driver of the said jeep, after overtaking the tractor stopped it. After stopping the tractor appellant Mayaram scolded the injured for not giving side and the appellant Murari fired at Jitendra Singh from his .12 bore gun causing serious injury to the injured Jitendra Singh. Thereafter the driver of the said jeep, after overtaking the tractor stopped it. After stopping the tractor appellant Mayaram scolded the injured for not giving side and the appellant Murari fired at Jitendra Singh from his .12 bore gun causing serious injury to the injured Jitendra Singh. By that time some people including Babusingh (PW 6) had gathered there and they snatched the gun from the hands of the appellant Murarilal. This gun was later on handed over by that Babusingh to Phoolsingh (PW 3), the father of the injured. The injured, Jitendra Singh, was taken to the District Hospital, Bhind, where after medical examination he remained under treatment for more than 1-1/2 month. Later on, the gun was seized from Phoolsingh and together with the pallets removed from the body of injured, was sent to the Forensic Expert, who reported that those pallets could be of a shot fired from that gun. The other appellants viz., Rukum Singh, Ramautar, Devsingh and Rakesh were all travelling together with the appellant Murarilal and Mayaram in that jeep, which was owned by the appellant Rukumsingh. 4. All the appellants were tried for the offences punishable u/s 148 and 307 read with section 149 of IPC. Appellant Murarilal was further tried for an offence punishable u/s 25 (IB) read with section 27 of the Arms Act. During the course of their trial statements of the injured Jitendra Singh (PW 4), Pansingh (PW 5), Babu Singh (PW 6), Jagdish Singh (PW 7), Ashok Sharma (PW 8), Tejendra Singh (PW 9) and Jaisingh (PW 10) were recorded as eye-witnesses. After their trial the learned Fifth Additional Sessions Judge, Bhind, found all the appellants guilty of the offence punishable u/s 148 and section 307 r/w section 149 of IPC and awarded them the impugned sentences. Appellant Murarilal was also found guilty of offence punishable u/s 25 (1B) of the Arms Act and was also sentenced to undergo rigorous imprisonment for a further period of one year and to pay a fine of Rs. 500/- and in case of non-payment of fine to undergo rigorous imprisonment for one year. 5. Aggrieved by their conviction and sentences these four appeals have been filed by the said appellants. 500/- and in case of non-payment of fine to undergo rigorous imprisonment for one year. 5. Aggrieved by their conviction and sentences these four appeals have been filed by the said appellants. During the course of argument the main contention advanced for the appellants by their learned counsel was that no case of rioting was made out against any of the appellants from the evidence of prosecution and that, therefore, none of the appellants could be held guilty for even an offence punishable u/s 307 read with section 149 of IPC. It was further contended on behalf of the appellants that any common intention or common object on the part of appellants was not established from the prosecution evidence and, therefore, except for appellant Murarilal the conviction of all other appellants was not maintainable. The learned panel counsel for the respondent-State in all these appeals, on the other hand, has supported the impugned judgment and the conviction and sentences of the appellants. 6. On perusal of the record it is found that none of the appellants was named in the FIR (Ex. P-4), which was lodged more than two hours after the incident by Tejendra Singh, the brother of the injured. Though in his statement (para 7) in the Court this Tejendra Singh has stated that he knew the names of the appellants from before, still he had not disclosed their names in his FIR. His explanation that the concerning head-constable had not asked for their names and that because of the serious condition of his brother he was in a disturbed state, therefore, he could not give their names, could not be believed. When other facts about the incident have been narrated by him, it is difficult to believe that he could not name the person who was known to him and who had fired at his brother. 7. The prosecution witness, Pansingh (PW 5) has in his cross-examination (para 3) stated that he was also present in the Hospital when the head-constable had come and that head-constable had specifically asked the names of the accused persons but he or anyone else, present at that place, had not disclosed the names of any of the appellants to him. The injured Jitendra Singh (PW 4) names only the appellant Mayaram and Murarilal stating that these two were directed by others to fire at him. The injured Jitendra Singh (PW 4) names only the appellant Mayaram and Murarilal stating that these two were directed by others to fire at him. He specifically states that he does not know as to who was driving the said jeep. He was even declared hostile and in his further statement has specifically stated that he even does not know the appellant Dev Singh. 8. The remaining four eye-witnesses viz., Babu Singh (PW 6), Jagdish Singh (PW 7), Ashok Sharma (PW 8) and Jaisingh (PW 10) are those who were not travelling in the tractor driven by injured Jitendra Singh. All these four witnesses have said that for some reason or the other at the time of the incident they were present at the spot but strangely witness Jaisingh (PW 10) in his examination-in-chief names the witness Tejendra Singh as the driver of the tractor and not the injured. Witness Ashok Sharma (PW 8) has specifically stated that except for appellant Mayaram and Murarilal he do not know any of the other accused persons. Witness Jagdish Singh (PW 7) has in his examination-in-chief itself (para 2) stated that he does not know the appellant Rukum Singh and that he came to know the name of the assailants later on which means that the assailants or even the other appellants were not known to him. Similarly, witness Babusingh (PW 6) has in his examination-in-chief itself stated that except for appellants Murarilal and Mayaram he had not identified anyone else. 9. However, as far as the appellants, Murarilal and Mayaram are concerned, this prosecution witness Babusingh (PW 6) has specifically stated that after the jeep had stopped, the appellant Murarilal as well as another appellant Mayaram, both came out of it and the appellant Mayaram scolded the injured Jitendra Singh and at that very time appellant Murarilal fired at the injured hitting injured Jitendra in his back. Injured Jitendra Singh had also named both of these appellants. Similarly, witness Pansingh (PW 5), Jagdish Singh (PW 7), Ashok Sharma (PW 8), Tejendra Singh (PW 9) and Jaisingh (PW 10) have also named them. 10. Thus, considering all this, as far as the appellants other than the appellants Mayaram and Murarilal are concerned, it was not established beyond doubt that they were also present at the time of the incident and that they accompanied the appellants Murarilal and Mayaram. 10. Thus, considering all this, as far as the appellants other than the appellants Mayaram and Murarilal are concerned, it was not established beyond doubt that they were also present at the time of the incident and that they accompanied the appellants Murarilal and Mayaram. Therefore, their conviction was clearly unwarranted and bad. 11. Regarding Mayaram also Pansingh (PW 5) and Ashok Sharma (PW 8) have only stated that the appellant Mayaram had asked the appellant Murari to fire at the injured but other eye-witnesses have not corroborated it. Witness Tejendra Singh (PW 9) had stated that the appellant Mayaram had asked co-accused Ramautar to fire. Witness Ashok Sharma (PW 8) stated that after Murari had fired at the injured the appellant Mayaram has stated that he is not dead, therefore, fire one more round. Witness Jagdish Singh has stated that 5-6 persons had asked Murari to fire. Witness Babu Singh (PW 6) has only states that the appellant Mayaram had only scolded the injured saying that the road did not belong to his father and why he was not given side. 12. Considering all this evidence it is very difficult to conclude that the appellant Mayaram had any common intention or common object with the appellant Murari. 13. However, as far as the appellant Murari is concerned, all these eye-witnesses have specifically stated that it was he who had fired at the injured. The injured also says that he was hit by the appellant Murari who had fired at him. Prosecution witness Babusingh (PW 6), Jagdish Singh (PW 7), Ashok Sharma (PW 8) and Jaisingh (PW 10) all the four have stated that the gun with which the appellant, Murari, had fired, was snatched away from him and was later on given to Phoolsingh who was the father of the injured and had arrived on the spot after some time. That gun, as per the prosecution witness, Ram Prakash Singh (PW 11), was seized from Phoolsingh. He has further stated that this gun alongwith the pallets received from the Hospital as the pallets recovered from the body of the injured, were sent to FSL Sagar and as per the report Ex. P-25, those pallets could be ones fired from the .12 bore gun. 14. He has further stated that this gun alongwith the pallets received from the Hospital as the pallets recovered from the body of the injured, were sent to FSL Sagar and as per the report Ex. P-25, those pallets could be ones fired from the .12 bore gun. 14. Thus, considering all this evidence of the prosecution it is clearly established that the appellant Murarilal had fired at the injured Jitendra Singh and considering the medical evidence on record together with the other evidence, it is further established that thereby he had caused a serious injury to the injured. From the evidence produced it is also clearly established from the testimony of Babusingh (PW 6) and others that the appellant Murarilal had fired at the injured on being annoyed by his conduct of not giving side to the jeep in which he (appellant) was travelling. This clearly shows that his intention was to punish the injured by killing him or in other words, he had fired with intent to murder Jitendra Singh. 15. Thus, considering all this evidence of the prosecution it is held that the appellant Murarilal was guilty of attempting murder of the injured Jitendra Singh and thereby of an offence punishable under section 307 of IPC. The learned trial Court has convicted him of an offence punishable u/s 148 and Section 307 r/w section 149 of IPC. Instead he should have been convicted for the offence punishable under section 307 of IPC. He was occupying the said gun and possessed no valid licence and therefore, his conviction for the offence punishable u/s 25 (1B) of the Arms Act was justified. But as far as the offence of rioting was concerned, the prosecution has clearly failed to prove beyond doubt the commission of offence of rioting by anyone of the accused and, therefore, their conviction for an offence punishable u/s 148 of IPC deserves to be set aside. As already seen the prosecution has even failed to establish the involvement of the appellants-Rukum Singh, Ramautar, Dev Singh and Rakesh in the incident and the role assigned to the appellant Mayaram as per the prosecution own witness, Babusingh (PW 6) do not establish the commission of any offence like that of rioting by him nor could this appellant Mayaram be said to be guilty of any offence punishable u/s 307 read with section 149 of IPC. 16. 16. Therefore, the appeal of Mayaram and Ramautar (Criminal Appeal No. 28 of 1999), Dev Singh and Rakesh (Criminal Appeal No. 30 of 1999) and of Rukum Singh (Criminal Appeal No.4 of 1999) are allowed and their impugned convictions and sentences are hereby set aside. The fine amount, if any, deposited by them be returned to them by the trial Court. In such circumstances, the gun seized from the appellant Ramautar be also returned to him together with licence after the expiry of the period of six months in case no appeal is filed during that period. 17. This appeal (Criminal Appeal No. 14 of 1999) is partly allowed and the conviction of the appellant. Murarilal under section 148 of IPC and sentence is set aside. However, the conviction under section 307 read with section 149 of IPC is modified to one under section 307 of IPC only. Considering the facts and circumstances of the case, specially that the incident happened only under sudden annoyance at the spur of the moment, he is sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 5,000/- and in case of his failure to pay that fine he shall undergo further rigorous imprisonment for a period of five months. His conviction and sentence under section 25 (18) of the Arms Act is maintained. Both these sentences shall run concurrently and the period already undergone by him shall be adjusted. The appellant Murarilal shall within fifteen days appear before the learned Chief Judicial Magistrate, Bhind, to undergo the remaining part of the sentence. Copy of the judgment be sent to the Chief Judicial Magistrate, Bhind, besides the trial Court.