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Madhya Pradesh High Court · body

2010 DIGILAW 661 (MP)

Kedar v. State of M. P.

2010-07-07

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

body2010
JUDGMENT A. K. Shrivastava, J. -- 1. Feeling aggrieved by the judgment and conviction and order of sentence dated 16th of August, 2000 passed by the learned Forth Additional Sessions Judge, Gwalior in sessions trial No. 282/89, convicting the appellant under section 302 of IPC and thereby sentencing him to suffer life imprisonment and fine of Rs. 2,000/-, in default further RI of six years, the appellant has knocked the doors of this Court by filing this appeal under section 374 (2) of the Code of Criminal Procedure, 1973. 2. In brief, the case of prosecution is that, on 27.6.1988 at 10.00 am, complainant Damodar was going to his field. On the way, his nephew Lakhan (herein after, referred to as the' deceased") was sitting on a Chabutra (platform) of one Pragi Kaurav, which is in front of the shop of Sunnu barber. At that juncture, appellant by carrying a gun, on seeing the complainant Damodar, hid himself behind the Neem tree and thereafter in order to kill the deceased fired the gun shot. According to the prosecution, the fire struck the neck region of the deceased, as a result of which, he fell from the Chabutra (platform). On seeing the incident, the complainant started shouting and rushed towards the accused to catch him. On hearing the shriek of the complainant, Sultan also arrived there, but the appellant anyhow managed to escape. At that juncture, wife of the deceased nan1ely Kusuma Bai, brother Ran1kishore and other inhabitants of the village namely Mansingh, Hardayal and Kallu also arrived at the spot. 3. It is further the case of prosecution that there was some enmity between the deceased and the appellant on account of some case, as it is said that at the instance of the appellant a motor pump of the deceased was seized. 4. The matter was reported by the complainant to the concerning police station. On lodging of the FIR, criminal law was triggered and set in motion. The investigating agency arrived at the spot; prepared the spot map; seized the blood stained and plain earth from the place of occurrence; recorded statements of the witnesses; sent the dead body of the deceased for postmortem; seized necessary articles and also seized blood stained clothes and they were sent for chemical examination. 5. The investigating agency arrived at the spot; prepared the spot map; seized the blood stained and plain earth from the place of occurrence; recorded statements of the witnesses; sent the dead body of the deceased for postmortem; seized necessary articles and also seized blood stained clothes and they were sent for chemical examination. 5. After investigation was over, a charge sheet was submitted in the committal Court, which on its turn, committed the case to the Court of sessions, from where it was received by the trial Court for the trial. 6. The learned trial Judge on the basis of the allegations made in the charge sheet, framed charge punishable under sections 302 of IPC against the appellant which he denied and requested for the trial. 6. In order to bring home the charge, the prosecution examined as many as nine witnesses and placed Ex. P/1 to P/10, the documents on record. 7. The defence of the appellant is of false implication and the same defence he sent forth in his statement recorded under section 313 of Cr.PC., and in support of his defence, he has examined one Kallu as DW 1. 8. The learned trial judge on the basis of the evidence placed on record came to hold that charge under section 302 of IPC has been found to be proved against the appellant eventually, convicted him and passed the order of sentence which we have mentioned herein above. 9. In this manner, this appeal has been preferred by the appellant assailing his judgment of conviction and order of sentence. 10. The contention of Shri Madhukar, Kulshreshtha, learned counsel for the appellant is that if the testimony of the prosecution witnesses is considered in its proper perspective, it would reveal that they are not the eye witnesses. By hammering on the evidence of Kusuma (PW 5) it has been argued by the learned counsel that since she has arrived at the spot after the incident, therefore, she cannot be an eye witness. By putting a deep dent on the testimony of complainant Damodar (PW 1) and other witnesses namely Sultansigh (PW 2), Ram Bhushan (PW 3), and Om Prakash (PW 4), it has been contended by the learned counsel that on X -raying their testimony, it cannot be said that they are the eye witnesses. By putting a deep dent on the testimony of complainant Damodar (PW 1) and other witnesses namely Sultansigh (PW 2), Ram Bhushan (PW 3), and Om Prakash (PW 4), it has been contended by the learned counsel that on X -raying their testimony, it cannot be said that they are the eye witnesses. It has also been put forth by the learned counsel that these witnesses are thickly related through blood to the deceased, and therefore, their evidence should not be believed, unless it is corroborated by the evidence of some independent witnesses. Learned counsel submits that the prosecution has failed to examine independent witnesses, therefore, adverse inference should be drawn against it. 11. It has also been put forth by the learned counsel that if the testimony of the eye witnesses is taken to be true, looking to the evidence of the autopsy surgeon Dr. K.K. Gupta (PW 7) and the postmortem report (Ex. P/9), the place from where the gun shot was fired, since it is a long distance, the mark of tattooing would not come, and if that would be the position, since the autopsy surgeon found mark of tattooing on the person of the deceased, therefore, according to the learned counsel either the evidence of eye witnesses is concocted and their testimony has been manufactured by the prosecution or they are concealing the reality. Hence, it has been prayed that by allowing this appeal, the appellant who is languishing in jail for the last more than ten years, be acquitted. 12. Per contra, Shri P.N. Gupta, learned Public Prosecutor argued in support of the impugned judgment. 13. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be dismissed. 14. In the present case, the prosecution has examined Damodar (PW 1), Sultansingh (PW 2), Ram Bhushan (PW 3), Omprakash (PW 4) and Kusum (PW 5) as eye witnesses. Damodar (PW 1) is also the author of the FIR (Ex.P/1) which has been proved by his evidence. In very specific words, Damodar is saying that on the fateful day, at 10.00 in the morning, when he came out from his house and was going to his another house, he found the appellant by carrying a gun was hiding his identity behind the Neem tree. In very specific words, Damodar is saying that on the fateful day, at 10.00 in the morning, when he came out from his house and was going to his another house, he found the appellant by carrying a gun was hiding his identity behind the Neem tree. Thereafter, the appellant fired gun shot on the deceased, as a result of which, the deceased sustained injury of gun shot fire on the rear side of his neck. Specifically, this witness is saying that from the close range of near about three feet, the gun shot was fired, and thereafter, the appellant ran away from the place of occurrence. In cross-examination para 11, it has been stated by this witness that the investigating officer prepared the spot map, and approximately it was opined by the investigating officer that the place from where the gun shot was fired and the place where the deceased was lying was near about eight paces, but indeed it was near about four feet only. Although, this witness is a witness of spot map (Ex.P/2), but merely because distance of eight paces has been mentioned in the spot map. It would not mean that the case of prosecution becomes doubtful. Certainly, the length of the barrel of the gun is also to be duducted from the total distance, hence, more or less, the same distance would come and, in these circumstances, if the autopsy surgeon Dr. K.K. Gupta (PW 1) has found the tattooing mark on the dead body of the deceased, there was nothing abnormal. 15. According to us, looking to the unimpeachable testimony of the eye witness Damodar (PW 1) firmly accusing the appellant of firing the gun shot and immediately lodging the FIR (Ex. P/1) only after one hour and ten minutes, and specifically assigning role of the appellant causing gun shot fire to the deceased on the rear side of the neck which is also medically corroborated, according to us, the learned trial Court did not err in placing reliance on the evidence of this witness. Even if there is some discrepancy about the description of the distance' and the observation of the Autopsy Surgeon about the presence of tattooing mark on the body of the deceased, according to us, it would not carry much weight-age, and the evidence of the eye witnesses cannot be discarded. Even if there is some discrepancy about the description of the distance' and the observation of the Autopsy Surgeon about the presence of tattooing mark on the body of the deceased, according to us, it would not carry much weight-age, and the evidence of the eye witnesses cannot be discarded. In this context, we may profitably rely on the decision of the Supreme Court in Janak Singh and another v. State of U.P. (2004) 11 SCC 385 , wherein the Supreme Court in paragraph 6 has held that where direct evidence of the eye witnesses is that the accused committed the murder by firing a gun, some inconsistency relating to distance based on medical opinion offered would be of no significance whatsoever. 16. The complainant was cross examined at length, but he remained vivid in his cross examination despite there being roving cross examination upon him According to us, the statement of the complainant is clear, cogent and trustworthy and the learned trial Court did not commit any error in placing reliance on the evidence of this witness. 17. Evidence of complainant Damodar (PW 1) is corroborated by the evidence of Sultan sigh (PW 2), who has categorically stated that at the relevant point of time he was present at the back side of his house. On hearing the sound of gun shot fire, he immediately went to the spot and found that appellant Kedar was running away from that place. Further, it has been stated by this witness that he was carrying the gun. This witness and other persons tried to chase the appellant but apprehending that the appellant may not repeat the gun fire, they did not chase him further. Hence, according to us, evidence of this witness is a relevant piece of evidence, as this witness is a witness of res gestae. 18. Similar type of statement is that of Ram Bhushan (PW 3) and Kusum Bai (PW 5). On going through the testimony of Om Prakash (PW 4), we are of the view that he is not the eye witness; as he arrived at the spot after the incident. 19. 18. Similar type of statement is that of Ram Bhushan (PW 3) and Kusum Bai (PW 5). On going through the testimony of Om Prakash (PW 4), we are of the view that he is not the eye witness; as he arrived at the spot after the incident. 19. We do not find any merit in the contention of the learned counsel for the appellant the looking to the distance from which the gun shot was fired, as it has been shown to be eight paces, presence of eye witness Damodar (PW 1) becomes highly doubtful. Evidence of Damodar (PW 1) is that the gun shot was fired from a close range of near about four feet. Although the investigating officer is saying that the distance from where the appellant has fired the gun shot and the place where dead body is lying is near about eight paces, and according to investigating officer one pace is equivalent to near about two and half feet, but according to us, all this measurement is only a guess work. Even if, for the sake of argument, we hold that complainant Damodar has not seen the incident, but certainly, he can be said to be a witness of res gestae and similarly other witnesses Sultansigh (PW 2), Ram Bhushan (PW 3) and Kusum (PW 5) are also the witnesses of res gestae, as all of them have seen the appellant running away from the place of occurrence, carrying the gun. 20. We also do not find any merit in the contention of the learned counsel for the appellant that because the Chabutra (platform) on which the deceased was sitting is at the height of one and half feet, therefore, the direction of the gun shot wound should be from downward to upward. No doubt, it has been borne out from the evidence of eye witnesses that the deceased was sitting on the Chabutra (platform) having height of one and half feet from the ground, but it is equally true that the appellant fired the gun in standing posture, and therefore, according to us, the height of the appellant would be more or less equivalent to the height of the posture of the deceased, and therefore, the question of receiving the gun shot having the direction from downward to upward would not arise. 21. We have also gone through the testimony of autopsy surgeon Dr. 21. We have also gone through the testimony of autopsy surgeon Dr. K.K. and the postmortem report (Ex. P/9) in which the doctor has found entry as well as exit wound of the gun shot, and therefore, according to us, medical evidence is also in corroboration to the evidence of eye witness Damodar (PW 1). 22. We have also gone through the reasonings assigned by the learned trial Court convicting the appellant under section 302 of IPC and we do not find any perversity in it. According to us, the learned trial Court, after correct appreciation of the evidence, has convicted the appellant. 23. Resultantly, this appeal is found to be bereft of any substance and the same is hereby dismissed.