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2008 DIGILAW 798 (MP)

Kailash Alias Gudda S/O Vikram v. State Of M. P.

2008-06-30

MANJUSHA P.NAMJOSHI, S.K.KULSHRESTHA

body2008
JUDGMENT : S. K. KULSHRESTHA, J. This appeal is directed against the judgment dated 29-6-2002 of the learned IVth Additional Sessions Judge, Dewas, in Sessions Trial No. 71/2000 whereby, while acquitting 13 co-accused, the appellant has been convicted for an offence punishable under section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs. 2,000/-. He has further been convicted under section 307 of the Indian Penal Code for attempting at the life of Lakhan, Madanlal, Bherulal and Pappu and sentenced under each count to rigorous imprisonment for 10 years and fine of Rs. 500/-. Sentence has also been awarded in default of payment of fine. 2. The appellant was prosecuted for the said offences along with 13 co-accused on the premises that there was estrangement between the villagers and the Kanjars with regard to the grazing of their cattle. On 22-9-1999, the Shepherds of the village namely; Bapu, Badri, Janki, Sagar and others had gone to the fields to graze their cattle, but their cattle had been taken away by Kanjars to their abode. Thereafter, complainant Suraj Jat, Pawan, Jankilal, Bapu, Sagarmal, Badri, Hari Yadav, Devkaran, Badrilal Patidar, Lakhan, Sohan and others from the village went to the houses of Kanjars to retrieve their cattle, but Kanjars started pelting stones and belaboured Bapuji by means of a Lathi. Accused Kailash (appellant) discharged bullets from his 12 Bore Double Barrel Gun which caused injuries to Pawan in his chest, Dharma fired a country pistol of 12 bore causing injuries to Sagarmal and Badri, Bucha Kanjar fired a country pistol of 12 bore, causing injury to Jankilal in his right arm, Shiv Kanjar also fired but it could not be seen as to who was hurt. The other Kanjars, 10 to 15 in number, assaulted them with Lathi, Farsi, Dharia and Stones. It was further alleged that Antar Singh fired a 12 bore gun causing injury to Lakhan Singh, Pappu and others. 3. On the said report, the investigation commenced and the injured were sent to the Hospital for their examination. Dr. H. K. Gupta (PW 12) examined the injuries and gave reports Exs.P/31, P/32 and P/34. It was further alleged that Antar Singh fired a 12 bore gun causing injury to Lakhan Singh, Pappu and others. 3. On the said report, the investigation commenced and the injured were sent to the Hospital for their examination. Dr. H. K. Gupta (PW 12) examined the injuries and gave reports Exs.P/31, P/32 and P/34. As per report Ex.P/31, the injury found on Pawan was a gun shot injury and the patient was unconscious, as per Ex.P/32 Sagarmal s/o Mangilal had received a gun shot injury, as per Ex.P/33 Rehman sustained four injuries while as per Ex.P/34 Lakhan sustained five injuries. Pawan was referred to the M. Y. Hospital in view of his critical condition, but he succumbed to the injuries. On receipt of the report about his death, inquest was held and vide requisition Ex.P/45, the body was sent for autopsy. Autopsy was conducted by Dr. N. M. Unda (PW 16) and report Ex.P/45 was given. As per the said report, 22 injuries were found attributable to gun shot pellets. Since injured Sagarmal, Bapuji and Badrilal had gone to Suyash Hospital for treatment, reports Exs.P/40 to P/42 were collected. The accused were arrested and during interrogation they gave information which was recorded under section 27 of the Evidence Act and the weapons were recovered at their instance. Mahesh Jaiswal (PW 15) also arrested the appellant and upon interrogation, the appellant made disclosure which was recorded under section 27 of the Evidence Act and in pursuance thereof, a 12 bore country made pistol was seized. The said pistol was sent to the Ballistic Expert, but the Ballistic Expert, though found that on account of fouling (Nitride) found in the barrel, the pistol had been used, but since the firing pin had been removed, it could not be said that the pistol was in working order. Learned counsel has also pointed out that at the time of the seizure, nothing was stated in the memo to show that the firing pin was missing. In further investigation, spot map was prepared, statements of witnesses were recorded under section 161 and statements of witnesses acquainted with the facts of the case were recorded under section 164 of the Criminal Procedure Code, except that of Rehman (PW 6) and after completion of the investigation, the appellants were prosecuted. 4. In further investigation, spot map was prepared, statements of witnesses were recorded under section 161 and statements of witnesses acquainted with the facts of the case were recorded under section 164 of the Criminal Procedure Code, except that of Rehman (PW 6) and after completion of the investigation, the appellants were prosecuted. 4. On being indicted for offences under sections 147, 148, 302 read with section 149, 307 of the Indian Penal Code and, in addition, under section 25(1-B)(a) and section 27 of the Arms Act against Kailash, the accused denied having committed any offence and pleaded that they had been falsely implicated. Accused Kailash took the defence that since the goat of Rehman had died in an accident with the truck belonging to Kailash, he was enmically disposed towards him. The learned Addl. Sessions Judge, however, on trial, while acquitting the 13 co-accused, found the appellant guilty and convicted and sentenced him as hereinabove stated. The appellant has, therefore, appealed to this Court against the impugned judgment. 5. Learned Senior counsel for the appellant has submitted that although the witnesses were injured on the basis whereof the prosecution could have claimed that they were present, for some undisclosed reasons, the statements were also taken under section 164 of the Criminal Procedure Code which unmistakably conveys that even the prosecution was not very sure about the sanctity of their statement. He has further pointed out that in a case where the two factions in large number had clashed with each other, it was not possible for the prosecution witnesses to have singled out the appellant and to say that he was the one who had fired the shot which had caused injury to deceased Pawan. Learned Senior Counsel has further submitted that the testimony of the witnesses suffers from grave suspicion, contradictions and they have modulated the version with a view to implicate Kailash and extricate the other accused persons. On the basis of this deliberate attempt on the part of the prosecution, it is clear that the conviction recorded by the trial Court is unsustainable, especially when the witnesses have departed from their earlier version and have engaged in serious exaggeration. The evidence of these witnesses is also replete with improbabilities and, therefore the prosecution witnesses cannot be relied upon. Mr. Girish Desai, learned Dy. The evidence of these witnesses is also replete with improbabilities and, therefore the prosecution witnesses cannot be relied upon. Mr. Girish Desai, learned Dy. Advocate General, has however, pointed out that there are large number of witnesses who are corroborated by the injuries received and the circumstances brought on record. Under these circumstances, the case does not call for any interference. 6. Before proceeding to consider the rival contentions, we may refer to the application, IA No. 1975/2008, under section 391 of the Criminal Procedure Code, for additional evidence. The application has been made on the ground that Pappu s/o Ghisalal (PW5) has not been cross-examined on behalf of the appellant Kailash and so also Bherulal (PW 8). It is for this reason that prayer has been made for their recall and cross-examination on behalf of the appellant. If the statement of Pappu (PW5) is examined, it reveals that Pappu had been extensively cross-examined by the counsel Mr. D. K. Inani on behalf of the co-accused and opportunity was also given to Mr. Shakil Ahmed Quereshi, counsel for the appellant, to cross-examine him but he did not ask any question. It is quite conceivable that on the basis of the cross-examination already made by the other counsel, the counsel for the appellant did not deem it fit to cross-examine the said witness. In the case of Bherulal (PW 8), Mr. D. K. Inani, counsel for the other accused, cross-examined first and thereafter Mr. V. S. Chhabra cross-examined the said witness on behalf of the appellant. In view of the above factual matrix, the prayer for additional evidence has no merit. The application IA No. 1975/2008, is rejected. 7. Coming to the merits of the case, it has not been disputed that the witnesses were injured as stated by Exs. P/31, P/33 and P/34. It has also not been disputed that while under treatment in M. Y. Hospital, Pawan succumbed to his injuries and his body was sent for autopsy of which report Ex.P/46 was received indicating 22 external injuries. The injuries recorded in the post-mortem report are compatible with the injuries caused by gun shot firing cartridge loaded with pellets. Pawan having died of the said injuries, it is clear that his death was homicidal. Even Dr. The injuries recorded in the post-mortem report are compatible with the injuries caused by gun shot firing cartridge loaded with pellets. Pawan having died of the said injuries, it is clear that his death was homicidal. Even Dr. N. M. Unda (PW 16) has opined that his death was due to shock and haemorrhage as a result of shot gun injuries (fire arm) to the body. He had also recovered pellets from the body and sealed and handed them over to the Police. We are, therefore, convinced that the witnesses Lakhan (PW 2), Narayan (PW 4), Pappu (PW 5), Rehman (PW 6), Bherulal (PW 8) and Madan (PW 9) were injured in the incident and their presence on the spot cannot be doubted. 8. The core question that falls for determination is as to whether the appellant accused can be convicted for the offences. To prove its case, the prosecution has examined 20 witnesses out of whom, 7 witnesses were examined to unfold the ocular version. Lakhan (PW 2), however, did not support the prosecution. We have already referred to the medical evidence and the testimony of Dr. H. K. Gupta (PW 12) and Dr. N. M. Unda (PW 16). The other witnesses namely; Dulichand (PW 7), witness to the arrest and section 27 Memo, Rajaram (PW 10), witness to the seizure, Anil Kumar (PW 11), also a seizure witness, have not supported the prosecution case. The remaining testimony pertains to the Police Officer Mahesh Jaiswal (PW 15). Jeevan Singh (PW 13) who brought the seized packet from the Hospital, Shobharam (PW 17) panch witness, D. S. Rana (PW 18), Sub-Inspector and Devendra Singh Raghuvanshi (PW 20), Station House Officer. For appreciating the rival contentions, it is necessary to first refer to the testimony of the eye witnesses. 9. The report of the incident was lodged by Surajmal Jat (PW 1), but he did not support the prosecution. Under these circumstances, the FIR stated to have been lodged by him loses its significance. Lakhan (PW 2) is an injured eye witness. He has deposed that the accused persons were known to him and on the date of the incident, at about 1:30 he was in his house. At that time Ramesh Jat, Suraj and others informed him that a quarrel had taken place on account of the dispute with regard to the grazing of the cattle. He has deposed that the accused persons were known to him and on the date of the incident, at about 1:30 he was in his house. At that time Ramesh Jat, Suraj and others informed him that a quarrel had taken place on account of the dispute with regard to the grazing of the cattle. When they were going to the Police Station to lodge report, the Kanjars started pelting stones and fired gun shots. He was informed that the gun was fired by Kailash and the bullets had struck Pawan and other persons. He has also stated that he had sustained gun shot injury in his calf and that he was sent for medical examination. Narayan (PW 4) has also corroborated the testimony of Lakhan (PW 2). He has stated that when they were going to the Police Station to lodge the report, they were surrounded by Kanjars and stones were pelted at them. The appellant then fired a gun at Pawan and caused injuries. 17 Pellets had struck him. While he was being taken to Hatpipliya, Toran accosted them and gave 15 to 20 lathi blows. While Pawan was being taken, accused Antar (acquitted) fired a shot which caused injuries on his arm. Pawan later died. He has denied the suggestion that 400 to 500 persons had gathered and since there was stampede, persons received injuries. He has also been asked whether the police had recorded his statement. He has stated that after he regained consciousness, he had given statement in Court. 10. Pappu (PW 5) is also an injured eye witness. After deposing to the incident, he has stated that Narayan had taken the deceased to the Hospital. He has also stated that his statement was recorded by the Police in village Arlavda in the Panchayat building. It was at that time when they had gone for the funeral that the statements were taken. He has categorically denied that his party had fired a shot which caused injury to Pawan. Rehman (PW 6) has corroborated the other witnesses. He has denied that he had run away for 7 days and it was only when he had returned that the police had recorded his statement. He has further denied the suggestion that because he had not stated the names, he had given his statement after 7 days under threat and coercion of the police. He has denied that he had run away for 7 days and it was only when he had returned that the police had recorded his statement. He has further denied the suggestion that because he had not stated the names, he had given his statement after 7 days under threat and coercion of the police. He has, however, admitted that he had not gone to the Police Station, but to the Hospital first and had come back to his house after few hours. He has stated that he had given the statement to the Police and had, thereafter gone to Indore and brought the dead body of Pawan. Bherulal (PW 8) is also corroborated by the other eye witnesses. He has stated that he had informed the Police about the countrymade pistol having been fired by Dharmendra but such recital was not there in his statement. We are, however, not concerned with the role of Dharmendra in the present appeal. He has denied having misfired a gun. He has stated that he had also received pellet injuries. 11. Madan (PW 9) has though stated that while they were going, they were attacked, initially he could not give out the names of the assailants. He has frankly admitted that the statement with regard to Kailash having shot the deceased has been made by him for the first time. We may record that since evidence of Madan (PW 9) suffers from vagueness and does not add to the testimony of the other witnesses, it deserves to be omitted from consideration. However, insofar as the other eye witnesses namely; Narayan (PW 4), Pappu (PW 5), Rehman (PW 6) and Bherulal (PW 8) are concerned, their evidence is consistent, cogent and trustworthy. 12. Learned counsel for the appellants has severely criticized the investigation on the ground that although the witnesses were injured, the police has tried to bind them with their statement and it is for this reason that the statements of the eye witnesses were got recorded under section 164 of the Criminal Procedure Code. Learned counsel submits that freedom of the witnesses to speak truth was thus constricted and curtailed, indeed, taken away. Learned counsel submits that freedom of the witnesses to speak truth was thus constricted and curtailed, indeed, taken away. While it is true that in a given circumstance the testimony of a witness may become doubtful on account of his having been bound down under section 164 of the Criminal Procedure Code, in the present case, nothing has been brought to show that the witnesses have deposed to the facts which did not exist or that they had exaggerated and modulated the version to bring their testimony in line with the prosecution case. Learned counsel submits that it is for this reason that the witnesses have focused their attention on the appellant by attributing all acts to him without regard to what was done by the co-accused and on this basis the witnesses have succeeded in securing conviction of the appellant. 13. It is clear from the testimony of eye witnesses as alluded to above, they have deposed against all the accused as per their version from the beginning. There is thus no substance in the contention. 14. The learned sr. counsel has further contended that the incident occurred on 22-9-1999, but the statements were recorded on 29-9-1999, for which the police officer has given a peculiar explanation. D. S. Rana (PW 18), was the S.H.O. at P. S. Hatpipliya on the date of the incident. He recorded the statements of the witnesses under section 161. He has stated that the statements were recorded on 29-9-1999. He has stated that the investigation was entrusted to him on 26-9-1999 and thereafter he had gone in search of the accused persons. It was for this reason that statements were recorded on 29-9-1999 in village Arlavda. He has stated that it is in the discretion of the Investigating Officer as to when the statements should be recorded. 15. While it is true that the Police Officer should record the statements under section 161 of the Criminal Procedure Code, as soon as possible and the same cannot be left to his caprice, but if there are valid reasons for the delay, the statements under section 161 of the Criminal Procedure Code, do not become inform or doubtful. D. S. Rana (PW 18) has stated that he had received the investigation on 26-9-1999. He had thereafter gone in search of the Kanjars and it was only after he had returned, he had recorded the statements. D. S. Rana (PW 18) has stated that he had received the investigation on 26-9-1999. He had thereafter gone in search of the Kanjars and it was only after he had returned, he had recorded the statements. The explanation given by him appears to be quite plausible. This apart, nothing has been suggested to the witnesses that they had first deliberated with regard to the incident and thereafter concocted a story and it was only then that their statements were recorded. On account of the plausible explanation given by the witness D. S. Rana about the delay and there being no suggestion to the effect that these witnesses had met and discussed the matter to create a story or to embellish the facts of the case, we do not find any substance in the contention of the learned senior counsel. We may add that it is not a case where the police officer was present but still statement was not made to him by witnesses. 16. Learned Dy. Advocate General has also pointed out that a country pistol was seized from the appellant and was sent to the Ballistic Expert for examination. The Ballistic Report dated 25-9-1999 though indicates that in the barrel of the pistol there was fouling which was detected to be Nitride indicating that the said weapon had been fired quite recently, since the firing pin was absent, it was not possible to test fire the said gun. We may recall that the witnesses has stated that the appellant had fired a 12 bore double barrel gun. In view of the fact that a gun had been fired by the appellant, the recovery of the country made pistol is of no consequence. The said recovery cannot be used as an incriminating piece of evidence against the accused. 17. The accused has also been convicted under section 307 of the Indian Penal Code on four counts and under each count he has been sentenced to RI for 10 years and fine of Rs. 500/-. The evidence with regard to the injury caused to the other witnesses is a little mixed up and vague. The witnesses have also attributed firing of gun shot, to other accused persons and it is, therefore, not possible to pick the grain from the chaff to fix the liability on appellant Kailash with any degree of exactitude. 500/-. The evidence with regard to the injury caused to the other witnesses is a little mixed up and vague. The witnesses have also attributed firing of gun shot, to other accused persons and it is, therefore, not possible to pick the grain from the chaff to fix the liability on appellant Kailash with any degree of exactitude. Though the evidence about the shot fired by the appellant striking the deceased is beyond reproach, the injuries caused to witnesses could have been caused by any co-accused. We are, therefore, of the view that insofar as his conviction under section 307 on four counts is concerned, the same cannot be sustained. 18. Ex consequentia, the conviction of the appellant under section 302 of the Indian Penal Code and the sentence of imprisonment for life and fine of Rs. 2,000/- is affirmed. The conviction of the appellant under section 307 of the Indian Penal Code on four counts and the sentence of 10 years RI and fine of Rs. 500/- under each count, is set aside. The appeal is thus, partly allowed.