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Madhya Pradesh High Court · body

2009 DIGILAW 739 (MP)

MOHD RAFIQ QURESHI v. STATE OF M P

2009-06-26

R.S.GARG, U.C.MAHESHWARI

body2009
Judgment ( 1. ) THIS judgment shall dispose of Criminal Appeal nos. 1479/2005, 1480/2005 and 1481/2005. ( 2. ) EACH of the appellant being aggrieved by judgment dated 22. 7. 2005 passed by learned First Additional Sessions Judge, sehore in Sessions Trial No. 1/2003 convicting the appellant mohd. Rafiq under Section 302/34 I. P. C sentencing him to undergo imprisonment for life and pay fine of Rs. 5000/-, under section 25 (1) (1-AA) of the Indian Arms Act sentencing him to undergo R. I for seven years and pay fine of Rs. 1000/-; under Section 27 (1) of Indian Arms Act to undergo R. I for seven years and pay fine of Rs. 1000/- and under section 27 (2) (3) of the Indian Arms Act to undergo R. I for seven years and pay fine of Rs. 1000/- in default of payment of fine to undergo R. I. for six months and one month for each default respectively; convicting appellant Jaspal Singh under Section 27 (1) of the Indian Arms Act sentencing him to undergo R. I. for seven years pay fine of Rs. 1000/- in default of payment of fine to undergo imprisonment for one month, convicting appellant Mragendra Singh under Section 302 I. P. C. sentencing him to undergo R. I for life and pay fine of rs. 5000/-, under section 27 (1) (1-B) (a) Indian Arms Act to undergo R. I for one year pay fine of Rs. 1000/- and under section 27 (1) of the Indian Arms Act sentencing him to undergo R. I for seven years and pay fine of Rs. 1000/- in default of payment of fine to undergo imprisonment for six months and one month each for such default, have filed this appeal. ( 3. ) THE prosecution case in brief is that on 23. 5. 2002 at about 23. 10 (11. 10 p. m) accused Jaspal who was also President of Janpad Panchayat informed Kotwali, Sehore that in village lasudia Parihar one Mallu thief was creating problems for him and intimidating him. That report was lodged at rojnamcha Sana No. 1783. The said report is Ex. P/31. On the basis of the said report Head Constable No. 568 Vikram singh, Constable Umashankar No. 226, Constable Sunil no. 475, Constable Dharam Singh No. 19 were directed to go to the spot, they were also given rifle and 20 bullets. That report was lodged at rojnamcha Sana No. 1783. The said report is Ex. P/31. On the basis of the said report Head Constable No. 568 Vikram singh, Constable Umashankar No. 226, Constable Sunil no. 475, Constable Dharam Singh No. 19 were directed to go to the spot, they were also given rifle and 20 bullets. To constable No. 19 Dharam Singh a wireless set was handed. The departure was reported in Rojnamcha Sana No. 784 at about 23. 15 hours and the same is available on the record at ex. P/32. ( 4. ) ON 23. 5. 2002 itself on 00. 20 (it would be 24. 5. 2002 after 12 hours midnight) Dharam Singh Constable No. 19 sent a wireless message to the concerned police station that on an attack Vikram Singh the Head Constable had suffered a gun shot injury and he was in a serious condition. The report was recorded at Rojnamcha Sana No. 1790 and is available on the record at Ex. P/33. ( 5. ) ON 24. 5. 2002 at 00. 40 one Mr. A. K. Dwivedi (P. W. 22)reached the spot and recorded the Dehati Nalish. When he reached the spot he was informed by Dharam Singh that he along with his colleagues had come to Lahsudia Parihar, they had surrounded the house and when Head Constable Vikram singh issued a warning that all inmates should come out because the police had arrived, somebody from inside said that police has come, a fire was shot which hit Vikram Singh on his thigh because of the injury Vikram Singh fell on the ground. When the police party tried to chase the miscreants they opened fire and fled away while they were fleeing away in torch light they were identified as Mragendra Singh, brother-in-law (wifes brother) of accused Jaspal, he was having a 12 bore double barrel gun in his hands while the other person was mohd. Rafiq who was having a country made rifle in his hands. Both of them boarded a motor cycle and fled away. The said dehati Nalish (Ex. P/20) was carried by Mohd. Farooq to kotwali Sehore. On the basis of the said Dehati Nalish first information report Ex. P/35 was registered. Rafiq who was having a country made rifle in his hands. Both of them boarded a motor cycle and fled away. The said dehati Nalish (Ex. P/20) was carried by Mohd. Farooq to kotwali Sehore. On the basis of the said Dehati Nalish first information report Ex. P/35 was registered. The police came to the spot and seized plain and blood stained earth, blood stained trousers of Vikram Singh, certain paper covers of the 12 bore cartridges and discharge cartridge of 12 bore etc. under Ex. P/4. ( 6. ) ACCORDING to the prosecution accused Mragendra Singh was arrested on 24. 5. 2002 at about 5. 00 a. m under Ex. P/1 while Mohd. Rafiq was arrested on the same day at about 5. 10 a. m under Ex. P/2, accused Jaspal was arrested under Ex. P/3 on 2. 7. 2002. ( 7. ) THE spot map was prepared at Ex. P/19, a gun was seized from accused Mragendra Singh. The gun had one undischarged or unfired cartridge while the other barrel had a discharged or fired cartridge. A bag was also recovered from him wherein, in a belt certain cartridges were found. From mohd. Rafiq country made 12 Bore revolver was recovered. It was found that it had one non-fired/undischarged cartridge. After the police party had reached the spot in the night itself vikram Singh was referred to the hospital where he was examined. His injuries were examined and repaired. Dr. S. S. Tomar (P. W. 12) repaired the injury and stated before the court that he could find a cover of the bullet. He examined the injured in presence of P. W. 25 Dr. R. K. Gupta who had testified in the court that the cap/cover of the bullet was found in the wound. Unfortunately Vikram Singh could not survive and he breathed his last and therefore, his body was sent for postmortem. P. W. 11 Dr. Badkur conducted the autopsy. According to his report a shot was fired from a near range, there was blackening of the skin around the wound and the body had almost 22 pallets under the injury. After seizure of the said pallets the same were sent to the Forensic Science laboratory which confirmed in the report that those were fired from a 12 Bore gun. ( 8. After seizure of the said pallets the same were sent to the Forensic Science laboratory which confirmed in the report that those were fired from a 12 Bore gun. ( 8. ) AFTER recording the statements of the persons present on the spot and after collecting the other material the prosecution agency filed a charge sheet against the accused persons. On completion of the trial the learned trial Court convicted and sentenced the accused as referred to above. Therefore, each of the accused has filed a separate appeal. ( 9. ) MANY fold arguments have been submitted by Shri Datt in support of the claim for acquittal for each of the accused, therefore, we shall now take up the arguments in seriatum. ( 10. ) FOR accused Jaspal it is submitted that the learned Court below was absolutely unjustified in convicting the appellant under Section 27 (1) of the Indian Arms Act, 1959 because it is nobodys case that the appellant Jaspal had used the arms or ammunition in contravention of Section 5 of the Arms Act. ( 11. ) LEARNED counsel for the State on the other hand submitted that if the 12 Bore gun was very carelessly kept and was in reach of any person then appellant Jaspal cannot avoid the vicarious liability. It is submitted by him that the mishandling of the gun and non-handling of the gun in a proper manner would amount to transferring the gun and, therefore, the accused has been rightly convicted. ( 12. ) SECTION 27 (1) of the Arms Act provides whoever uses any arms and ammunition in contravention of Section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Section 5 of the Arms Act provides for licence for manufacture, sale etc. of arms and ammunition. Shri R. S. Patel, learned Additional Advocate General for the state has placed strong reliance upon the proviso appended to sub section 2 of Section 5 of the Arms Act. It provides that provided that no fire arm or ammunition in respect of which a licence is required under Section 3 and no arms in respect of which a licence is required under Section 4 shall be sold or transferred by any person unless. . . . . . . . . It provides that provided that no fire arm or ammunition in respect of which a licence is required under Section 3 and no arms in respect of which a licence is required under Section 4 shall be sold or transferred by any person unless. . . . . . . . . . The requirement of the proviso is that when a licence is required then no arms shall be sold or transferred by any person. Undisputedly, the prosecution has not come out with the case that the 12 Bore gun owned by the accused Jaspal was sold by him. There is no further evidence to show or suggest that he had transferred the gun to co-accused Mragendra Singh or Mohd. Rafiq. On the other hand, we would be justified in believing that the gun was kept in the farm house of accused Jaspal and probably finding it to be a easy catch somebody had used the gun. In the present case there is no proof of sale or transfer of the gun or use of the gun in contravention of Section 5 of the Arms Act. The accused Jaspal in our considered opinion could not be convicted. His conviction under Section 27 (1) of the Arms Act is set aside. He is acquitted of the charge. The confiscation of the gun in view of the above finding is also set aside. He is also entitled to get back the custody of the gun. Fine amount if deposited be returned to him. ( 13. ) FOR accused Mragendra Singh and Mohd. Rafiq, learned counsel for the appellant submitted that a perusal of the statements of the alleged eye witnesses viz. Umashankar dubey (P. W. 8), Dharam Singh (P. W. 9) and Sunil (P. W. 20) it would clearly appear that the prosecution was trying its best to suppress the true facts. It is submitted that from recovery of some articles from near the deceased Vikram Singh and the fire marks/pallet marks on the outer walls of the house it would clearly appear that the police party had opened fire and probably the accused thought them to be some thief and somebody from inside had opened the fire. It is submitted that the prosecution had come out with the case that the torch was lit for the first time after the gun was fired from inside of the house. It is submitted that the prosecution had come out with the case that the torch was lit for the first time after the gun was fired from inside of the house. It is submitted that if there was pitch dark outside the house nobody could be seen then the blind fire cannot lead to intention of the accused that to commit murder they had opened the fire. It is also submitted that from the statements of the eye witnesses it would clearly appear that within half an hour or so each of the accused viz. Mragendra Singh and mohd. Rafiq was taken in the custody they were asked to board a jeep and were taken to the police station but to forge further evidence panchanama was prepared in the morning. It is also submitted that from the evidence and the police case itself it would appear that a gun along with 20 bullet/cartridges were given to head constable Vikram Singh but later on handing over of the gun and bullet was being denied by the prosecution to suppress the true facts. After taking us through the statements of P. W. 22 Akhilesh Dwivedi and P. W. 24 O. P. Binodiya, it was submitted that despite availability of sufficient material to show that fire was also opened from outside either on the warnings or on the inmates of the house, they did not act honestly. ( 14. ) IT was also contended that P. W. 12 Dr. Tomar who had first seen the injured had found a bullet piece in the wound and as the said bullet piece was not seized or sent for its examination by the ballistic expert/forensic Science laboratory this Court should hold that the prosecution was suppressing the genesis of the crime. Referring to statements of P. W. 25 Dr. R. K. Gupta it was submitted that he had prepared the report and he clearly mentioned that he had seen a bullet piece in the wound and that in his presence Dr. Tomar had found a bullet piece in the wound. It was also submitted that from the statements of P. W. 11 Dr. R. K. Gupta it was submitted that he had prepared the report and he clearly mentioned that he had seen a bullet piece in the wound and that in his presence Dr. Tomar had found a bullet piece in the wound. It was also submitted that from the statements of P. W. 11 Dr. Badkur it would appear that the gun was shot from a very close range and as the direction was going from the lower side to the higher side this Court should hold that no gun could be fired from the window or the door because if such was firing pattern then the direction of the injury should either be straight or going down side. After taking us through the statements of the witnesses of the incident it was submitted that each of the accused be acquitted. ( 15. ) SHRI R. S. Patel, learned Additional Advocate General for the State vehemently conceded that from the statements of the eye witnesses and other witnesses it would appear that the guns were fired from outside also and certain fired cartridges were also recovered from outside the house. He however submitted that the arrest of the accused persons within half and hour of the incident and preparation of arrest memo at 5. 00 in the morning is not going to adversely affect the charge levelled by the prosecution. Referring to the statements of P. W. 11 Dr. Badkur it is submitted by him that no bullet piece was found in the wound and in fact the pallet mass which made a forceful entry into the body of the deceased might have created a large opening and the doctors who had earlier repaired the injury might have been confused and thought that there was a bullet piece. Referring to the statements of the eye witnesses it is submitted that the fact that the gun was fired from inside of the house and the accused persons were seen running in the torch light is supported by all concerned. It is also submitted by him that non-seizure of the torch which was made an issue by the learned counsel for the appellant, would not adversely affect the statements of the prosecution witnesses. A lapse on the part of the investigating agency would not make a witness unreliable. It is also submitted by him that non-seizure of the torch which was made an issue by the learned counsel for the appellant, would not adversely affect the statements of the prosecution witnesses. A lapse on the part of the investigating agency would not make a witness unreliable. It was also submitted that the fact that the police party had gone with the gun and some cartridges/bullets should not have been suppressed by the police agency but that action again would not adversely affect the reliability of the prosecution witnesses. It is submitted by him that the prosecution has proved its case and the accused persons have been rightly convicted. ( 16. ) BEFORE entering into the scrutiny and the marshaling of the evidence, we have to look into the fact of the motive. Unfortunately the prosecution agency had not brought anything on the record to show or prove that what was the motive of the accused person in opening fire on the police party. It is not in dispute before us that after receiving the telephone call from Jaspal Singh the police party had gone to the farm house of the accused. It is also not the case of the prosecution that either because of some previous enmity or for some other reasons the police party was called on the spot and fire was opened. If earlier enmity is to be presumed as a fact then presence of accused Jaspal was a must. Absence of accused Jaspal on the field or the farm house would clearly show that Jaspal very honestly sent a report to the police that intimidation was extended by Mallu thief. On that report if the police party had gone to the farm house then obviously they had no enmity with the inmates of the house nor the inmates of the house had any enmity with the police party. In absence of the motive, we will have to look into the evidence because except the evidence that a gun was fired from the inside and two accused persons were seen running from the spot, we have no other material to connect the accused persons with the crime. ( 17. In absence of the motive, we will have to look into the evidence because except the evidence that a gun was fired from the inside and two accused persons were seen running from the spot, we have no other material to connect the accused persons with the crime. ( 17. ) FROM the statements of the witnesses it has come on record that after reaching the spot Vikram Singh made a statement that the inmates of the house should come out because the police has come, on that somebody in the house said that police has come and immediately thereafter some firearm was shot. It has not come on the record that before opening the warning any torch was lit or there was sufficient light to identify the persons who were giving the warning. It has also come on the record that Vikram Singh was not in his uniform and rather he was wearing his slippers. It appears that after the warning was opened the inmates of the house thought that somebody had come to make an attack on them and immediately in the pitch dark of the night somebody shot from inside and thereafter they ran way. It is also to be seen from the records that from the place where the accused persons made exit or from inside of the house no other fired cartridge were recovered. The first shot was fired from inside the house and according to the prosecution case the inmates opened fire and escaped. If these facts are to be accepted then fired cartridges or some other things like those which could show that additional cartridges were fired could have been recovered from the site. It is not the prosecution case that from inside the house they had recovered any fired cartridges or recovered any fired cartridges from the place where the accused had run. On the other hand, it has come that from near Vikram Singh fired cartridges were recovered. The prosecution agency were obliged to explain before the Court, when witnesses supported their case that they were not armed with guns, that how the fired cartridges were recovered from near Vikram Singh and why the prosecution had come with the case that Vikram Singh was given one gun or twenty cartridges /bullets. It appears that the prosecution after finding that Vikram Singh had suffered the injury changed its statement and stance. It appears that the prosecution after finding that Vikram Singh had suffered the injury changed its statement and stance. It also changed its stand and started saying that the police party was not armed with any guns. At this stage we must observe that it is on the record and it is even the prosecution case that after receiving the information four police personnels were given the wireless set, a gun, 20 cartridges and they were asked to go to check the place and arrest Mallu thief. The probability that after hearing the alarm the inmates of the house might have thought that somebody outside under the pretext that he was a police personnel was trying to make an attack and on that somebody inside the house opened a fire. We would not be unjustified in presuming that immediately thereafter the police party opened the fire which led to pallet marks/bullet marks on the outside walls of the house. In a case like present where the pallet marks/bullet marks are found on the outer wall of the house and when it is nobodys case that the accused persons had fired on the walls of the house, burden would be heavy upon the prosecution agency to prove that who fired on the outer walls of the house. It would also appear from the records that immediately after the shot was fired the two accused started running from the house and thereafter they were arrested within half an hour or so. The evidence that they could be identified in the torch light, in our opinion despite great opposition by the learned counsel for the appellant is reliable. Each of the witnesses has said that after first fire the accused persons started running and in the torch light they were seen. ( 18. ) NOW the basic question would be that whether the gun was shot from the inside with an intention to kill or under some misapprehension. It is contended by the learned counsel for the appellants that after making a report to the police when the inmates of the house were sitting in the house somebody from outside had raised a call that the police had come then those persons would have a reasonable apprehension that some miscreants had come outside the house. It is contended by the learned counsel for the appellants that after making a report to the police when the inmates of the house were sitting in the house somebody from outside had raised a call that the police had come then those persons would have a reasonable apprehension that some miscreants had come outside the house. It is further submitted that in such a situation if in the pitch dark of the night if somebody from inside of the house fires a gun then it cannot be presumed that there was an intention to commit murder. ( 19. ) SHRI Patel, learned Additional Advocate General for the state vehemently submitted that without taking due care and caution if somebody fired from inside then the intention has to be assessed. ( 20. ) AFTER hearing the parties on this question and taking into consideration the totality of the circumstances, we are of the opinion that in absence of the light and being apprehensive of some miscreants outside the house if somebody had fired a shot from the gun then the intention cannot be deduced nor presumed. At best it can be held that the accused had the knowledge that by firing the gun in the dark he was likely to kill somebody. At this stage, we would like to observe that when the accused persons were inside the house and in the dark when they fired a gun shot they were required to take proper care and caution. Immediately after hearing the warning they fired the gun, such a situation would not lead us to hold that in the right of the defence the accused persons had opened the fire. ( 21. ) SO far as recovery of the bullet piece and pallet from the thigh are concerned even if we assume that the bullet cover was recovered from the thigh of the deceased, the fact still would remain that almost 22 pallets were recovered from the injury suffered by the deceased Vikram Singh. Non-seizure of the bullet cover and non-sending of the same to the ballistic expert, in our opinion would not give a dent to the reliability of the defence when P. W. 11 Dr. Badkur said that he had recovered 22 bullets from the body of the injured ( 22. Non-seizure of the bullet cover and non-sending of the same to the ballistic expert, in our opinion would not give a dent to the reliability of the defence when P. W. 11 Dr. Badkur said that he had recovered 22 bullets from the body of the injured ( 22. ) TAKING into consideration the totality of the circumstances, we are of the opinion that the learned Court below was unjustified in convicting appellant Jaspal, we acquit him of all the charges. He is on bail. His bail bonds are discharged. He is also held entitled to the custody of the gun. Conviction of appellant Mragendra Singh under Section 302 i. P. C and of accused Mohd. Rafiq under Section 302/34, for the reasons aforesaid are set aside and instead they are convicted under Section 304 Part II read with Section 34 and each of them is sentenced to R. I for five years. Conviction of appellant Mragendra Singh under Section 27 (1) (1-B) (a) of the arms Act and Section 27 (1) of the Indian Arms Act are maintained but however the sentence of seven years awarded under Section 27 (1) of the Indian Arms Act is reduced to three years R. I while sentence awarded under Section 27 (1) (1-B) (a)is maintained. Conviction of the appellant Mohd. Rafiq under section 25 (1) (1-AA), Section 27 (1) of the Arms Act and Section 27 (2) (3) of the Arms Act are maintained but the jail sentences are reduced to a period of three years under each count. The imposition of the fine amount is maintained. ( 23. ) IT is further directed that all the jail sentences shall run concurrently. Accused Mohd. Rafiq according to the learned counsel for the appellant has not furnished the amount and, therefore, he is in jail. If that be so the fact may be verified and the accused Mohd. Rafiq may be asked to undergo the remaining sentence. ( 24. ) ACCUSED Mragendra Singh is on bail. His bail bonds are canceled. He is directed to surrender before the C. J. M Sehore on or before 27. 7. 2009. On his appearance he shall be taken into custody and will be sent to the jail for undergoing the remaining sentence. ( 24. ) ACCUSED Mragendra Singh is on bail. His bail bonds are canceled. He is directed to surrender before the C. J. M Sehore on or before 27. 7. 2009. On his appearance he shall be taken into custody and will be sent to the jail for undergoing the remaining sentence. In case he does not appear on or before the said date then the learned C. J. M. Sehore shall issue non-bailable warrant to secure his attendance for undergoing the sentence. ( 25. ) THE appeals to the extent indicated above are allowed.