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2009 DIGILAW 1279 (MP)

Pappu alias Gajraj v. State of M. P.

2009-11-16

A.K.SHRIVASTAVA, S.S.DWIVEDI

body2009
JUDGMENT Shrivastava, J. -- 1. The judgment passed in this appeal shall also govern the disposal of connected Criminal Appeal No. 386/1999 (Nepal and others v. State of M.P.) since both the appeals have arisen from the common judgment passed by the learned trial Court. 2. Feeling aggrieved by the judgment of conviction and order of sentence dated 18.8.2009 passed by the learned First Additional Sessions Judge, Shivpuri in Sessions Trial No. 64/1997, convicting appellant of this appeal under section 302 of IPC and thereby sentencing him to suffer life imprisonment and fine of Rs. 10,000/- in default, further R.I of one year and further convicting the appellants of connected Criminal Appeal No. 386/ 1999; appellant No. 1- Nepal under Section 325 and 323, appellant No.-2 Brajesh under section 325 and 323 and appellant No. 3- Haricharan under section 323 of IPC and thereby sentencing them to suffer rigorous imprisonment and fine as mentioned in the impugned judgment, these two appeals have been filed by the appellants under section 374 (2) of the Code of Criminal Procedure, 1973. 3. In brief, the case of prosecution is that on 28.1 0.1996 at 8.00 p.m. appellant-Pappu alias Gajraj outraged the modesty of Kamlesh, who is wife of Simran (P. W. 10), and when his act was complained by Simran to the appellant, it is said that he (appellant) told that just now he will teach a lesson and thereafter all the accused persons, who were seven in number came and threw Simran on the ground and wielded lath is to him. When Kailash came to intervene, it is said that Brajesh (appellant No.2 of connected Criminal Appeal No. 386/99) dealt lathi blow on his head. Manthe, Nepali, Chandel and Pappu alias Gajraj (appellant) also dealt blows of kicks and fists. At that juncture, Tarachand (PW 4), his brother Manphool (hereinafter referred to as "the deceased") and Gajju (PW 6) came to intervene, at that time, accused Amarlal and his companions asked the appellant of this appeal as to why he is witnessing the incident, thereafter, he rushed in his house and by carrying a 12 bore licensee gun of his father fired it from the balcony in order to kill the deceased. The gun shot hit the waist of the deceased from left side and the bullet came out from his back region, as a result of which, the deceased fell down at that place only. The pellet of the second fire, which was accused by appellant, hit the right calf of Tara chand (PW-4). The inhabitants of the village also assembled there, and thereafter, all the accused persons ran away. The deceased died at the spot and the First Information Report was lodged by Tarachand (PW-4) in Police Station Balrad. 4. After the investigation was over, a charge sheet was submitted in the committal Court which in its turn, committed the case to the Court of Sessions and from where it was received by the trial Court for its trial. 5. The learned trial Judge, on the basis of the averments made in the charge sheet, framed charges punishable under sections 148, 302, 323, 324 and 325 and in the alternative 302/149, 323/149, 324/149 and 325/1'49 of IPC against the accused persons including the appellant, which they denied and requested for the trial. 6. The learned trial judge, on the basis of evidence placed on record came to hold that appellant has committed the offence under section 302 of IPC and eventually convicted him and passed the sentence which we have mentioned hereinabove. Nepal (appellant No. 1 of connected Criminal Appeal No. 386/ 1999) has been convicted under Section 325 and 323 of IPC for causing injuries to Gopi and Simran; Brajesh (appellant No.2 of connected Criminal Appeal No. 386/1999) has been convicted under section 325 and 323 (two counts) for causing injuries to Gopi, Simran and Kailash respectively while Haricharan (appellant No.3 of connected Criminal Appeal No. 386/1999) has been convicted under section 323 for causing injuries to Simran and they have been directed to suffer the sentence as mentioried in para 60 of the impugned judgment. The learned trial judge did not find charges under Section 148, 302, 323, 324 and 325 and in alternative 302/149, 323/149 324/149 and 325/149 of IPC to be proved against the other accused persons and eventually acquitted the other accused persons from the said charge. 7. In this manner, the present appeal and the connected Criminal Appeal No. 386/1999 have been filed by the appellants assailing judgment of conviction and order of sentence. 8. 7. In this manner, the present appeal and the connected Criminal Appeal No. 386/1999 have been filed by the appellants assailing judgment of conviction and order of sentence. 8. We have heard Shri A.K. Jain, learned counsel for appellant and Shri T.C. Bansal, learned Public Prosecutor for respondent-State. 9. We have also heard Shri Reghuveer Singh, learned counsel for appellants of connected Criminal Appeal No. 386/1999 and Shri T.C. Bansal, learned Public Prosecutor for-respondent-State. 10. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed, while connected Criminal Appeal No. 386/1999 deserves to be allowed in part. 11. In the present case the prosecution has examined Tarachand (PW-4) Narayni (PW 5) Gajju (PW 6), Kamlesh (PW 7), Kailash (PW 8), Simran (PW 10), Gopi (PW 11) and Malkhan (PW 14). All the eye witnesses are saying that firstly the maarpeet took place between the deceased and the accused persons on the ground floor and thereafter on the insistence of Amarlal that the problem will not be solved by wielding lathis and now gun shot fire should be made, the appellant went inside the house and by carrying a gun arrived at the balcony, of first floor and fired gun shot from that place, which struck the body of the deceased resulting in his spontaneous death. Indeed, this has also been so stated in the FIR (Ex. P-27) lodged by Tarachand (PW 4). On going through the spot map (Ex. P. 39), we find that on the northen side, the house of appellant has been built up and on the southern side at the comer of platform of temple towards eastern side the dead body of the deceased was lying. In the spot map, the distance between the place from where gun shot was fired and the place where the dead body was lying has been shown to be 15 paces (near-about 21 ft.). Since right from very beginning it is the case of prosecution that from the balcony of the first floor of the house a gun shot was fired by appellant to the deceased, according to us certainly the direction 0 entry wound should be from upward to downward. However, the autopsy surgeon Dr. Since right from very beginning it is the case of prosecution that from the balcony of the first floor of the house a gun shot was fired by appellant to the deceased, according to us certainly the direction 0 entry wound should be from upward to downward. However, the autopsy surgeon Dr. J.P. Karotiya (PW 16) on examining the dead body of the deceased found that the entry wound was found having 2 cm radius on left hip and the exit wound was found having 4 cm radius on the right side of abdominal wall and 5 cm above from the naval area, which would mean, the direction of gun shot was from lower side to upward side. If the gun shot was fired by appellant from the balcony of the first floor of his house on the deceased, who was standing on the ground floor, certainly. the direction of entry and exit wound should be from upward to downward, but here the situation is altogether reversed. Thus, the evidence .of all the eye-witnesses becomes highly suspicious. 12. Apart from this, the autopsy surgeon Dr. J.P. Karotiya (PW-16) has further found blackening and charring marks on the dead body of the deceased, which would mean that from a close range of near about 3 ft. gun shot was fired, but the case of prosecution is that from the balcony of the house of appellant gun shot was fired and the distance is near-about 21 ft. Hence, according to us, it becomes highly suspicious that appellant caused gun shot injury from the balcony of his house to the deceased, as a result of which, the deceased died. Therefore, according to us, the conviction of appellant under section 302 of IPC cannot be allowed to remain stand and same is hereby set aside. Accordingly, this appeal is allowed, the conviction of appellant-Pappu alias Gajraj under Section 302 of IPC is hereby set aside and he is acquitted from this charge. 13. So far as the conviction of Nepal, Brijesh and Haricharan (appellant No. 1,2 and 3 of connected Criminal Appeal No. 386/1999) is concerned, we have gone through the reasoning of the learned trial Court as well as evidence of Go pi, Simran and Kailash. 13. So far as the conviction of Nepal, Brijesh and Haricharan (appellant No. 1,2 and 3 of connected Criminal Appeal No. 386/1999) is concerned, we have gone through the reasoning of the learned trial Court as well as evidence of Go pi, Simran and Kailash. According to us, the learned trial Court did not commit any error in convicting appellant No. 1- Nepal and appellant No. 2-Brajesh for causing grievous injuries to Gopi and simple injuries to Simran, therefore, their conviction under section 325 and 323 of IPC is hereby affirmed. Similarly, we do not find any error in the judgment of the learned trial Court convicting Haricharan (appellant No.3 of connected Criminal Appeal No. 386/1999) for causing simple injuries to Simran. However, looking to the nature of injuries which they sustained, and looking to the role assigned to the appellants of connected Criminal Appeal No. 386/1999, according to us, it would be appropriate that they shall be released for the period they have already undergone. However "we have not interfered with the quantum of amount of fine, which has been imposed by the learned trial Court. 14. Accordingly, the connected Criminal Appeal No. 386/99 is hereby allowed in part. Appellants Nepal, Brajesh and Haricharan are on bail, their bail bonds are discharged. 15. The conviction of appellant of this appeal under section 302 of IPC is hereby set aside and he is acquitted from this charge. He is in jail, he be set at liberty forthwith, if not required in any other case.