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Madhya Pradesh High Court · body

2008 DIGILAW 1378 (MP)

SADHU SINGH v. STATE OF M P

2008-11-26

R.S.GARG, U.C.MAHESHWARI

body2008
Judgment ( 1. ) THE appellant being aggrieved by the judgment dated 26. 11. 93 passed in Session Trial No. 87/93 by the learned Additional Sessions Judge, Satna convicting the appellant under Section 302 IPC sentencing him to undergo RI for life, has filed this appeal. ( 2. ) THE allegations of the prosecution were that the deceased Sheela Devi wife of Sadhu Singh had developed some illicit relation with one Munha (not examined ). The accused was taking objection but despite that those two were continuously meeting each other. On the fateful day, according to the prosecution, a sound of gunshot was heard and immediately thereafter the accused came out from the house. Later on it was found that the house was locked from out side and when the witnesses peeped, they could see the dead body of the deceased. It is also not in dispute before us that P. W. 3 Chhotelal, happened to be real brother of the accused while P. W. 4 Ramjeet and P. W. 5 Chunni are maternal uncles of the accused. It is also not in dispute before us that the accused is retired military person and holding a twelve bore licensed gun. After receiving the information, p. W. 6, Kamta Prasad Tiwari came to the spot, he prepared the Panchnama and sent the dead body for post-mortem. Sub Inspector L. N. Sharma (P. W. 10) on the basis of Ex. P. 13, registered the inquest at Ex. P. 3 and thereafter registered the first information report (Ex. P. 2 ). The lock on the house of the accused was broken in presence of the witnesses and thereafter-dead body was recovered. The gun belonging to the accused was seized and an empty cartridge was also recovered. Blood stained and plain earth was also seized from the spot. The unused cartridge and fired cartridge were sent to Forensic Science Laboratory under Ex. P. 23 for their examination. The Forensic Science Laboratory sent its opinion under Ex. P. 24, but however, in the said report nothing was mentioned about the empty/fired cartridge or unused cartridge. After collecting the material against the interest of the accused, charge sheet was filed. The learned trial court recorded the findings in favour of the police/prosecution and convicted and sentenced the appellant as referred to above. ( 3. P. 24, but however, in the said report nothing was mentioned about the empty/fired cartridge or unused cartridge. After collecting the material against the interest of the accused, charge sheet was filed. The learned trial court recorded the findings in favour of the police/prosecution and convicted and sentenced the appellant as referred to above. ( 3. ) SHRI S. C. Datt, learned Senior counsel for the appellant submitted that ex. P. 23 is the memorandum in which the fired cartridge, twelve bore gun and unfired cartridge were sent for their examination, but from Ex. P. 24, it clearly appears that there is no report about the fact that fired cartridge in fact was fired from the gun belonging to the accused, it is submitted by him that unless empty cartridge is connected with the act and weapon of the accused, the appellant could not be convicted. It is also submitted by him that the evidence available on the record does not complete the chain of the circumstance, which could lead to the irresistible conclusion into the guilt of the accused. ( 4. ) SHRI T. K. Modh, learned Government Advocate, on the other hand, submitted that the accused was living in the house with his wife and immediately after the gun shot he was seen running from the spot, hence the trial court was justified in convicting the appellant. ( 5. ) WE have heard the parties and perused the record. P. W. 1 Rajman has not supported the prosecution and was declared hostile. P. W. 2 Ramphal is not the witness to the incident but he is witness to the breaking of lock and seizure of the articles which included sleeper, blouse etc. P. W. 3 Chhotelal in the examination in chief stated that after hearing the gun shot he came to the house of the accused and he found that accused was chasing one Munna and was shouting that said munna has murdered his wife. This witness was declared hostile. P. W. 4ramjeet has also not supported the prosecution. Same is the case with P. W. 5 Chunni. P. W. 6 Kamta Prasad Tiwari prepared a report and gave it to the village Chowkidar for sending it to the police Station. P. W. 7 Dr. A. A. Siddiqui had conducted the post mortem and he found that the cause of death was the gun shot injury. Same is the case with P. W. 5 Chunni. P. W. 6 Kamta Prasad Tiwari prepared a report and gave it to the village Chowkidar for sending it to the police Station. P. W. 7 Dr. A. A. Siddiqui had conducted the post mortem and he found that the cause of death was the gun shot injury. P. W. 8 Jamuni Bai is the mother of Munna. She had stated that Munna had some illegitimate intimacy with wife of accused Sadhu Singh. She stated that after hearing the gunshot she came out and saw that accused came out from the house and ran away. P. W. 9 Dadulal had received and seized a sealed packet. P. W. 10 L. N. Sharma ASI had made the investigation. This is the sum total of the evidence. ( 6. ) JAMUNI Bai (P. W. 8) had stated against the interest of the accused by saying that after hearing the gunshot, she came out and saw that accused came out from the house and started running. This evidence in our opinion, is absolutely unreliable because the police, in the morning, had found that the door of the house was locked. It is not the case of Jamuni Bai (P. W. 8) that the accused came out from the house put a lock on the house and thereafter ran away. In the absence of any other oral evidence we are only left with evidence of seizure of the gun from the possession of the accused : ( 7. ) UNFORTUNATELY, on the record we dont have the report of Forensic Science laboratory nor have the report of ballistic expert. True it is that the accused had a licensed gun and the deceased died because of gunshot injury, but unless the gunshot injury is proved to be caused by the gun belonging to the accused simply because the dead body was found in the house of the appellant he could not be convicted. ( 8. ) THE learned trial court was absolutely unjustified in recording the findings against the interest of the accused, the said findings are hereby set aside. ( 9. ) THE appeal is allowed. The conviction of the appellant is set aside and he is acquitted of all the charges. The appellant is on bail. His bail bonds are discharged. ( 8. ) THE learned trial court was absolutely unjustified in recording the findings against the interest of the accused, the said findings are hereby set aside. ( 9. ) THE appeal is allowed. The conviction of the appellant is set aside and he is acquitted of all the charges. The appellant is on bail. His bail bonds are discharged. The order relating to forfeiture of gun and the cartridges is also set aside. It is hereby directed that accused would be entitled to get back the gun and the cartridges. Appeal allowed.