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Madhya Pradesh High Court · body

2010 DIGILAW 1036 (MP)

Babuji @ Shyam v. State of M. P.

2010-10-12

R.C.MISHRA

body2010
Judgment ( 1. ) This appeal has been preferred against the judgment-dated 20/7/2007 passed by Additional Sessions Judge, Jabalpur in S.T. No.346/01 whereby the appellant was convicted and sentenced as under with the direction that the jail sentences shall run concurrently- Convicted under Sentenced to: Section 307 of the IPC undergo R.I. for 10 years and to pay fine of Rs.2000/- and in default, to suffer R.I. for 2 years. 25(1-B)(a) of the undergo R.I. for 7 years and to pay fine of Arms Act, 1959 (for Rs.1000/- and in default, to suffer RI for 1 short the Act) year. 27 of the Act undergo R.I. for 7 years and to pay fine of Rs.1000/- and in default, to suffer RI for 1 year. ( 2. ) Prosecution story, in short, may be narrated thus - On 11/3/2001, with a view to nabbing the absconding (i) accused, Vinod Pathak (PW5), a Head Constable attached to Police Lines at Jabalpur, was deputed to perform patrolling duty along with Arjun Singh (PW4) and Jay Prakash Tiwari (PW3), posted as Constables in Police Station Ranjhi. As they reached West Lines, Rajesh Verma (PW6), a Constable in Hanumantal Police Station, who was discharging the same duty, also joined them. While moving in the areas falling under territorial (ii) jurisdiction of Police Station Khamaria, at about 6.00 p.m., near Gurudwara, located in N-Type Quarters in Khamaria, they received a credible information to the effect that two offenders viz. the appellant namely Babu alias Shyam and co-accused Satpal Tiwari, who were involved in the murder of Gudda Kachhi, were hiding themselves in P-type Quarter No.337. On reaching the quarter, police personnel surrounded it. After a while, Satpal opened the door and came out of the house along with the appellant. Observing that both were literally besieged by the police party, they fled away on a scooter driven by the appellant. Vinod started chasing them on a motorcycle whereon Arjun was sitting as the pillion rider. As they reached the culvert situated near the water tank, Satpal fired a shot through a .32 bore revolver at Vinod, who was able to save himself. In the meanwhile, Rajesh and Jay Prakash also arrived there on another motorcycle. Vinod then asked the appellant to stop and throw the firearm but Satpal fired another shot at him. As they reached the culvert situated near the water tank, Satpal fired a shot through a .32 bore revolver at Vinod, who was able to save himself. In the meanwhile, Rajesh and Jay Prakash also arrived there on another motorcycle. Vinod then asked the appellant to stop and throw the firearm but Satpal fired another shot at him. Ultimately, a few yards ahead of the culvert, the scooter went in to a skid and both the riders fell down. After getting up, they tried to run away. When they were challenged, the appellant also opened fire through a 12-bore katta at the police personnel. One of the bullets ultimately hit mudguard of the motorcycle belonging to Vinod. Acting in self-defence, Vinod fired two shots through his service revolver. Sustaining gunshot injuries, the appellant fell down and Satpal also suffered a fall. They were immediately apprehended and katta and revolver with spent and live cartridges were recovered from their possession. Upon a report (Ex.P-9) submitted by Vinod, H.B. (iii) Dwivedi, the SHO of P.S. Khamaria registered a case under Section 307 read with 34 of the IPC and Section 25 read with 27 of the Act. During investigation, he - (a) inspected the spot and recovered one Bajaj Scooter bearing registration No.MP-20-C-4674 and a cover of a spent cartridge therefrom, (b) seized Hero-Honda motorcycle, having registration no.MP20-P-5678, one 9 mm service revolver and 8 live cartridges from Head Constable Vinod. All the seized articles were sent to FSL, Sagar for ballistic examination. The corresponding report (Ex.P-14) indicated that the firearms were in working condition. ( 3. ) On being charged with the offences, the appellant abjured the guilt and pleaded false implication. According to him, the police personnel concocted the entire case after firing at him unnecessarily at the time when he was staying in the quarter allotted to co-accused Satpal. ( 4. ) The prosecution sought to prove the charges by examining 7 witnesses including four members of the police party, Anil Agnihotri (PW1), the Arms Clerk and Dr. Subhash Pathak (PW2), the Senior Scientific Officer of FSL, Sagar. The defence also called in three witnesses namely Chandra Shekhar (DW1), Ravindra Singh Thakur (DW2) and Dr. Girish Bajpai (DW3). However, at the stage of final arguments, both the accused absconded and, thereafter, only appellant could be arrested under the permanent warrant issued against him. ( 5. Subhash Pathak (PW2), the Senior Scientific Officer of FSL, Sagar. The defence also called in three witnesses namely Chandra Shekhar (DW1), Ravindra Singh Thakur (DW2) and Dr. Girish Bajpai (DW3). However, at the stage of final arguments, both the accused absconded and, thereafter, only appellant could be arrested under the permanent warrant issued against him. ( 5. ) Legality and propriety of the impugned convictions have been challenged on the following grounds - (i) Non-examination of any independent witness to the incident in question. (ii) Non-communication of the information relating to presence of the appellant and Satpal in the quarter to the officer-in-charge of the concerning police station viz. P.S. Khamaria. (iii) Mis-appreciation of evidence of Vinod (PW5), Jayprakash (PW3), Arjun Singh (PW4) and Rajesh (PW6). (iv) Probability of the defence as the case was based on a report written by Vinod, the author of gunshot injuries found on the person of the appellant. In response, learned Panel Lawyer, while making reference to the incriminating piece of evidence, has submitted that the convictions are well founded. ( 6. ) In order to appreciate the merits of the rival contentions in a proper perspective, it is necessary to first advert to the medical evidence on record. ( 7. ) Girish Bajpai (DW3) proved existence of following injuries ? on the body of appellant (as described in report Ex.D-4) - (i) Lacerated wound on the forearm 2 cm x 2 cm in size with bleeding on the left forearm (ii) Lacerated wound on the left leg 2 cm x 2 cm, right leg lower end internally midline sharp exist wound as lacerated wound 3 cm x 2 cm, anterior aspect of lower end of leg. on the body of Satpal (as described in the report Ex.D-3) ? Lacerated wound on the foot, right side 4 cm x 2 cm x 2 cm in size According to the medical expert, he had referred the case of appellant to the Medical College Hospital for further examination and treatment. ( 8. ) Head Constable Vinod Pathak (PW5) substantially reiterated the contents of the report (Ex.P-9) scribed by himself immediately after the incident resulting into the aforesaid injuries to the appellant and the co-accused. Constables Jayprakash (PW3), Arjun Singh (PW4) and Rajesh (PW6) named as his companions in the report also came forward to corroborate the respective versions. ( 8. ) Head Constable Vinod Pathak (PW5) substantially reiterated the contents of the report (Ex.P-9) scribed by himself immediately after the incident resulting into the aforesaid injuries to the appellant and the co-accused. Constables Jayprakash (PW3), Arjun Singh (PW4) and Rajesh (PW6) named as his companions in the report also came forward to corroborate the respective versions. However, no documentary evidence was adduced to prove that - the appellant and Satpal were wanted in connection (i) with murder of Gudda Kachhi. (ii) Vinod was deputed by a competent police officer to perform patrolling duty with a view to apprehending the absconding criminals found concealing their presence at any place in the city of Jabalpur. conduct of Arjun Singh (PW4) and Jay Prakash Tiwari (iii) (PW3), who were posted as constables at P.S. Ranjhi as to their movement within the area attached to P.S. Khamaria was validated by the competent officer.. (iv) conduct of Rajesh, who was posted as constable at P.S. Hanumantal, as to his movement in the territories falling within the local jurisdictions of P.S. Ranjhi and P.S. Khamaria, was subsequently legalized by the competent officer. ( 9. ) This apart, the investigation officer H.B. Dwivedi (PW7) did not seize the control and bloodstained earth from the spot where the appellant and Satpal had sustained the injuries. Further, no trail of the blood on the corresponding path was reflected in the spot map (Ex.P-3) prepared by him only. The absence of evidence as to availability of blood that oozed out from the injury no.(i) [above) received by the appellant was indicative of the fact that he was shot at an altogether different place. According to H.B. Dwivedi, he was able to collect only one case of spent cartridge whereas in all, three shots were fired by co-accused Satpal and the appellant. Strangely enough, he did not record statement of any inhabitant of the neighbouring quarters of the ordnance factory. Complainant Vinod also failed to explain satisfactorily as to why the information regarding traceability of the appellant was not communicated to the officer-in-charge of P.S. Khamaria within whose area, the place to be searched was situated. ( 10. Strangely enough, he did not record statement of any inhabitant of the neighbouring quarters of the ordnance factory. Complainant Vinod also failed to explain satisfactorily as to why the information regarding traceability of the appellant was not communicated to the officer-in-charge of P.S. Khamaria within whose area, the place to be searched was situated. ( 10. ) It is true that the first part of Section 307 of the IPC does not contemplate receipt of any injury by the victim and, therefore, his testimony if corroborated by a promptly lodged FIR and other evidence on record, would be sufficient to bring home the charge of attempt to murder, provided it is free from all taints which tend to render the same open to suspicion. ( 11. ) Law is well settled on the point that the burden on an accused person to establish the plea of defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence. ( 12. ) In Joginder Kumar v. State of U.P. AIR 1994 SC 1349 , the Supreme Court had the occasion to deal with the rights of arrestee. Making reference to the question, as posed by Justice Benjamin Cardozo in People v. Defore, (1926) 242 NY 13, 24:150 NE 585, 589, - "as to whether protection for the individual would not be gained at a disproportionate loss of protection for society as on the one side is the social need that crime shall be repressed and on the other, the social need that law shall not be flouted by the insolence of office", the Court made the following illuminating observations - "No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so". ( 13. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so". ( 13. ) In the wake of the abovementioned facts and circumstances, probability of the defence that the appellant was apprehended while staying in the quarter allotted to co-accused Satpal and was shot at while being taken to the police station stood duly substantiated. ( 14. ) To sum up, learned trial Judge completely misdirected himself in holding the appellant guilty of the offences charged with despite the fact that veracity of the incident narrated by Head Constable Vinod was sought to be supported by police personnel only whose presence at the spot located in the vicinity of residential quarters, was shrouded with doubt and not by any public witness. Since the probability of the defence version could not be totally ruled out, the appellant was required to be given the benefit of doubt. ( 15. ) In the result, the appeal is allowed. The impugned convictions and consequent sentences are hereby set aside. Instead, the appellant is acquitted of all the offences. The fine amounts, if deposited, be refunded. ( 16. ) The appellant is in custody. He shall be released forthwith if not required in any other case. Appeal allowed.