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Madhya Pradesh High Court · body

2005 DIGILAW 485 (MP)

State of M. P. v. Umesh

2005-04-05

A.K.GOHIL, CHANDRESH BHUSHAN

body2005
JUDGMENT Bhushan, J. -- 1. This is an appeal preferred by the State against acquittal of the respondents out of whom respondent No. 1 Umesh was charged for committing offences punishable under sections 120B, 302 and 307 of IPC as well as 25/27 of the Arms Act, while each of the others was charged for committing offences punishable under sections 120B, 302/34 and 307/34 of IPC. 2. The prosecution story in brief is that complainant Keshav (PW 8) had a piece of agricultural land in village Ladampura of PS Mehgaon, district Bhind. Adjacent to his field was the field of one Mahavir. Respondent No. 1 Umesh and respondent No.4 Rajeev both were the sons of that Mahavir while respondent No.2 and respondent No.5, namely, Brijesh and Ramsewak were sons of a cousin of Mahavir. On 13.10.1986 the respondent No.1 Umesh, while ploughing the field of his father, had demolished the boundary structure (med) in between his and the field of complainant Keshav (PW 8). Therefore, Keshav (PW 8) referred the matter for settlement to panchas Asharam (PW 5) and Baburam (PW 6). On his call, both these panchas, namely, Asharam and Baburam on•14.10.1986, early in the morning went to the disputed site. After seeing the place, they put some mud erecting the boundary structure. Thereupon, respondent No.1 Umesh further asked for erection of marks (khunta) on its either side. Thereupon, complainant Keshav (PW 8) objected saying that if some such structure like khunta is put then he would not be able to plough his field. Thereafter, the complainant Keshav (PW 8) also re-spread the mud put by the panchas. Then the respondent as well as Mahavir, who were all present at the spot, started hurling abuses. The complainant Keshav was accompanied by one Suratram (PW 11) and Virendra Kumar (PW 7). By the time, the respondents started hurling abuses, one Soprasad (PW 9) also reached the place. The complainant in reply too hurled abuses. Thereupon, Mahavir asked the respondent No. 1 Umesh to lift his gun and kill the complainant, etc. The respondents Brijesh, Rajeev and Ramsewak also exhorted Umesh to kill at the earliest. Thereupon, respondent Umesh went to his nearby house to fetch the gun. From his house he took the gun belonging to his father Mahavir and came out. By that time, complainant Keshav (PW 8) etc. had also gone towards their house and had taken shelter. The respondents Brijesh, Rajeev and Ramsewak also exhorted Umesh to kill at the earliest. Thereupon, respondent Umesh went to his nearby house to fetch the gun. From his house he took the gun belonging to his father Mahavir and came out. By that time, complainant Keshav (PW 8) etc. had also gone towards their house and had taken shelter. As respondent Umesh armed with a gun came out of his house, Omprakash (PW 10), hearing sounds, asked his wife Savitri, hereinafter referred as the deceased to go out and see what has happened. Therefore, Savitri came out of her house and seeing the respondent Umesh with the gun, requested him not to fire. But the respondent Umesh, instead of accepting her request, fired a gun shot at her itself. She fell down and succumbed to the injuries caused to her by the gun shot. Thereafter, respondent Umesh went back to his house and after climbing to the roof, fired few more shots from there but they did not hit anyone. Meanwhile, the complainant Keshav (PW 8) managed to escape from there and went to Barohi and thereafter from there to Mehgaon police station and lodged the first information report, Ex. P-8. Accordingly, the Investigation Officer M.S. Chauhan (PW 13) reached the spot and prepared the spot map Ex. P-9 and referred the body of the deceased Savitri for autopsy. Autopsy was conducted by Dr. A.K. Gupta (PW 1). He found an entry wound without any charring or tattooing on the chest, left of mid clavicular line and an exit wound on the back but lower in level than the entry wound. After completing investigation, a charge-sheet was filed by PS Mehgaon against all the four respondents as well as Mahavir. 3. The learned Third Additional Sessions Judge, Bhind, hereinafter referred as the trial Court, before whom the trial took place, accordingly, charged the respondent No.1 Umesh for committing offences punishable under sections 120-B, 302 and 307 of IPC as well as 25/27 of the Arms Act. The remaining four were charged for committing offences punishable under sections 120-B, 302/34 and 307/34 of IPC only. Each of them abjured their guilt. During the trial, in all fourteen witnesses including the Medical Expert, two Panchas, the Investigating Officer and five as eye-witnesses, were examined by the prosecution. The respondents also examined eight witnesses in their defence. The remaining four were charged for committing offences punishable under sections 120-B, 302/34 and 307/34 of IPC only. Each of them abjured their guilt. During the trial, in all fourteen witnesses including the Medical Expert, two Panchas, the Investigating Officer and five as eye-witnesses, were examined by the prosecution. The respondents also examined eight witnesses in their defence. The learned trial Court after recording the evidence and hearing the parties holding that the prosecution has failed to prove it's case beyond reasonable doubts and that in the alternative it was possible that the gun shot, if any, was fired by the respondent No. 1 Umesh then it was fired in exercise of right of his private defence, acquitted all the five accused-persons. 4. Agglieved by the said Judgment dated 18.7.1988 of the learned trial Court, this appeal has been preferred by the State on the grounds that the findings of the learned trial Court were perverse and that it has erred in appreciating the evidence. Out of the five accused, No. 3-Mahavir died during the pendency of this appeal and therefore his name has been deleted from the array of respondents. 5. We have heard the learned counsels of both the sides and have also perused the record. The learned defence counsel fairly conceded that the deceased Savitri had on 14.10.1986 died of a gunshot injury and that her death was homicidal, this is also amply established by the testimony of Dr. A.K. Gupta (PW 1) and other prosecution witnesses. 6. The only question that is raised before us is regarding conspiracy between the five accused persons and formation of common intention by them and in furtherance of their common intention commission of murder by the respondent No. 1 Umesh. 7. As far as the formation of conspiracy is concerned, the evidence on record was only testimonies of three witnesses namely, the complainant Keshav (PW 8), Virendra Kumar (PW 7) and Soprasad (PW 9) and they have also only stated about exhortation by the four respondents namely, Brijesh, Mahavir, Rajeev and Ramsewak. Exhortation was certainly different from conspiling. There was no evidence at all about hatching of any conspiracy between the respondents. Therefore, we fully agree with the findings of the learned trial Court that the prosecution has totally failed to prove the allegation regarding, conspiracy to commit clime, between the respondents. 8. Exhortation was certainly different from conspiling. There was no evidence at all about hatching of any conspiracy between the respondents. Therefore, we fully agree with the findings of the learned trial Court that the prosecution has totally failed to prove the allegation regarding, conspiracy to commit clime, between the respondents. 8. As far as causing of death of the deceased Savitri is concerned, the prosecution evidence consisted of only testimonies of four prosecution witnesses' namely, Virendra Kumar (PW 7), Keshav (PW 8), Soprasad (PW 9) and Omprakash (PW 10) who have stated about having themselves witnessed the incident. According to everyone of them it was the respondent Umesh who had fired a gunshot at the deceased which resulted in her death because of the injury caused by that gun shot. Death of the deceased was result of a gunshot this is also confirmed by the prosecution witness Dr. A.K. Gupta (PW 1). Complainant Keshav (PW 8) has categorically stated in his cross-examination (Para 5) that the shot was fired by the respondent Umesh from a distance of 22 paces which means more than 30 ft. As per Dr. A.K. Gupta (PW 1) considering the directions of the wounds, the levels of wound of entry and the wound of exit, the shot was fired from a height as it went from higher part of the body to a little lower part in the back. This Dr. A.K. Gupta (PW 1) in his cross-examination (Para 7) has specifically stated that therefore the fatal gun shot was not possible from front side. Considering the evidence of his, it was not possible that the fatal gun shot could have been fired from the same ground level, from the distance of 30 ft. because in such a circumstance the angle of wound in the body of the deceased would •have been different from the wound found and specified by Dr. A.K. Gupta (PW 1). All the said four eye witnesses have categorically stated that the respondent No.1 Umesh had fired the said gun shot from the same ground level and as already seen, according to the complainant Keshav (PW 8) it was fired from a distance of more than 30 ft. Thus, therefore, testimonies of the said four eye witnesses in this respect were clearly inconsistent with the findings of the medical expert Dr. A.K. Gupta (PW 1). Thus, therefore, testimonies of the said four eye witnesses in this respect were clearly inconsistent with the findings of the medical expert Dr. A.K. Gupta (PW 1). This inconsistency raises a serious doubt against their credibility. 9. Then, according to one of them, namely, Soprasad (PW 9) one bullet was also recovered from a place near the body of the deceased and the I.O. M.S. Chauhan (PW 13) has also stated that he has found that near the body of the deceased and has seized as per Ex. P-15. He has further stated that the bullet, etc. was sent for examination to the Ballistic. Expert. The report of Ballistic Expert is Ex. P-25 and in this report the Expert has categorically opined that the bullet which was sent to him was a bullet of 0.315" bore rifle' and not of .30-06 bore rifle as was sent to him. The 1.0. M.S. Chauhan (PW 13) has also stated that he had seized from Umesh the gun used by him, and Ex. P-13 was the seizure memo. All the said eye-witnesses have also stated that the respondent had used the gun belonging to his father Mahavir and this gun seized from respondent Umesh as per Ex. P-13 was a Winchester gun bearing No. 6437. The same gun i.e., of make Winchester bearing No. 6437 was' sent to the said Ballistic Expert as per Ex. P-25 and this Expert as already seen, has categorically opined that the bullet recovered and sent to him was not fired by that rifle. According to his opinion, the bullet sent to him was fired by 0.315" bore rifle while the gun of respondent Umesh was of 30-06" bore and thus, this Ballistic Expert's report totally falsifies firing of the fatal gun shot by the respondent Umesh through the said Winchester make rifle. 10. Moreover, as per three of the said four eye-witnesses namely, Virendra Kumar (PW 7), Keshav (PW 8) and Soprasad (PW 9), shot was fired by respondent No. 1 Umesh after exhortation following the dispute at their field before two Panchas namely Asharam (PW 5), and Baburam (PW 6). But both of them, Asharam (PW 5) and Baburam (PW 6) do not support their version regarding exchange of hot words followed by exhortation. All the said three as well as Omprakash (PW 10) were close relations and inimical in terms with respondents. But both of them, Asharam (PW 5) and Baburam (PW 6) do not support their version regarding exchange of hot words followed by exhortation. All the said three as well as Omprakash (PW 10) were close relations and inimical in terms with respondents. The version of the said three is not supported by independent witness like Asharam (PW 5) and Baburam (PW 6). According to those three, one Suratram (PW 11) was also with them and he has also been examined by the prosecution as PW 11. 'But he has also not supported them regarding firing of fatal gun shot by the respondent Umesh. 11. There were material contradictions in between the testimony of the said four eye-witnesses also. While Omprakash (PW 10) has stated that, following his wife he had also come out and it was before him that the deceased had requested the respondent not to fire and still the respondent had fired a shot while the complainant Keshav (PW 8) himself in his cross-examination (Para 5) as well as in examination-in-chief itself, has clearly stated that his uncle Omprakash had come out of his house-only after the deceased had received the gun shot. Then, the complainant Keshav (PW 8) has stated in his cross-examination that after coming out and near the body of deceased, Omprakash had told him that he will remain with the dead-body while the complainant should go and lodge the report. But Omprakash (PW 10) has himself stated that when respondent Umesh had fired shot from a roof he went back inside his house, being afraid. He does not even say about asking the complainant to go and lodge the report. Witness Soprasad (PW 9) in his cross-examination states that from the roof the respondent Umesh had fired 2-3 shots and they did struck the wall of the house of the Omprakash (PW 10). But complainant Keshav (PW 8) in his cross-examination (Para 5) has stated that none of the shots fired by the respondent Umesh had struck the wall. On the other hand, he has stated that all the bullets fired by the respondent Umesh had fallen near the body of the deceased and all of them were picked up by the police. The I.0. M.S. Chauhan (PW 13) has stated only about finding of one bullet. 12. On the other hand, he has stated that all the bullets fired by the respondent Umesh had fallen near the body of the deceased and all of them were picked up by the police. The I.0. M.S. Chauhan (PW 13) has stated only about finding of one bullet. 12. Thus, considering the discrepancies between the versions of said eye-witnesses and the finding of the Medical-Expert, the inconsistencies between the testimony of said four eye-witnesses and the opinion of the Medical Expert, the want of corroboration by independent witness like Asharam (PW 5) and Baburam (PW 6) and the various inconsistencies as pointed out before, between the testimony of these four witnesses themselves, the testimony of these four eye-witnesses does not inspire any confidence at all. Morever, independent persons like defence witnesses namely Vinod Kumar Tripathi (DW 2), Brajendra Singh (DW 5) and Subhash Jain (DW 6), have all averred about presence of respondents Ramsewak, deceased, Mahavir and Rajeev at places away from the place of the incident and at or around the alleged time of incident which in turn also overrules the possibility of them being present at the field where dispute on boundary mark had taken place and therefore tends to falsify the testimony of said prosecution witnesses who have stated about their presence at the field. Therefore, considering all these weaknesses in prosecution evidence, etc., if the learned trial Court has not relied upon them then in the opinion of this Court, it has committed no error. In the case of Awadesh v. State of M.P., reported in [1988 JLJ 358 = AIR 1988 SC 1158 ], the apex Court had also, where the doctor opined that the person who caused fatal injury to the deceased was at a higher level than the deceased while the eye witnesses have not stated so, held that there was inconsistency' between the medical and ocular evidence which indicated that the eye witness had not seen the actual occurrence at all. 13. From the testimony of the IO M.S. Chauhan (PW 13), it is also clear that another report about another incident at the same place and at the same time was lodged by one Rajkumar. The 10 himself has admitted in his cross-examination (para 3) that the report Ex. D-l by Rajkumar was about an incident which occurred at the same place and at the same time. The 10 himself has admitted in his cross-examination (para 3) that the report Ex. D-l by Rajkumar was about an incident which occurred at the same place and at the same time. He has also stated that, as was also reported to him, he had found several marks of gun shots on the walls of the houses belonging to respondent Umesh and his father. He has also stated that, therefore, he filed a charge-sheet for an offence punishable under section 326 of IPC against the complainant, etc. There is no explanation in the prosecution evidence about the cause of those marks of the gun shots found on the wall of the house of respondent Umesh and his father. The learned PP tried to explain that the gun shots mentioned in the concerning spot map Ex. D-2 were on the wall on different side. But there is nothing in the evidence to support his contention. In the said spot map Ex; D-2 it has nowhere been mentioned as to on the wall of which side of the house the marks were found. On the other hand, the statement of 10 that both the reports were about incidents at the same place and of the same time, shows that actually these marks were on the wall facing towards the side where the body of the deceased was lying and in view of this, the learned trial Court has committed no error in concluding that it raises possibility of firing by the other side also and, therefore, it was possible that gun shot, even if any, was fired by the respondent Umesh then it was fired in exercise of right of his private defence. The view taken by the trial Court in this respect considering the said evidence on record was quite a possible and reasonable view. 14. Thus, considering the scope of interference in an appeal against acquittal as per the principles mentioned by the apex Court in the case of Ajit Savant Majagavi v. State of Karnataka reported in AIR 1997 SC 3255 , no ground for any interference by this Court in this appeal against acquittal is made out. In the opinion of this Court, the findings of the learned trial Court that the prosecution has failed to prove its case beyond reasonable doubts, was, as already discussed before, a reasonable and most probable finding, considering the evidence on record. In the opinion of this Court, the findings of the learned trial Court that the prosecution has failed to prove its case beyond reasonable doubts, was, as already discussed before, a reasonable and most probable finding, considering the evidence on record. The finding of the learned trial Court is, therefore, agreed upon by this Court and accordingly confirmed. There being no force in this appeal, it is dismissed. The respondents are already on bail. Their bail bonds shall stand discharged. ......................