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2010 DIGILAW 690 (MP)

Arvind alias Chhota v. State of M. P.

2010-07-13

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

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JUDGMENT A.K. Shrivastava, J. 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 30.12.2005 passed by learned Fifth Additional Sessions Judge (Fast Track Court), Morena, in Sessions Trial No. 287/98 convicting appellants under Section 302 of IPC and thereby sentencing them to suffer life imprisonment and fine Rs. 500/- each, in default, further S.I. of three months, the appellants have knocked the doors of this Court by preferring this appeal under Section 374(2) of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that on 12.9.1998 complainant Yogendra Singh @ Guddu lodged first information report that at 8 in the morning his brother Lokendra Singh @ Bablu (hereinafter referred to as the deceased) went to evacuate in the field of one Munni and he (complainant) went to evacuate in the field of Kalyan Singh which is 20-25 paces far away from the field of Munni. At that juncture, appellant No. 1- Arvind @ Chhota having 12 bore double barrel gun and his brothers Ramshankar armed with Katta (country-made pistol) and Girjashankar carrying 12 bore single barrel gun arrived there and Appellant No. 1-Arvind @ Chhota by hurling the abuse of mother, fired the gun on the deceased. On receiving the gunshot injury, the deceased fell down and screamed to help. At that juncture, it is said that appellant Nos. 2 and 3, namely Ramshankar and Girjashankar, also fired on the deceased and thereafter all the three appellants fled from the place of occurrence. 3. It is the further case of prosecution that apart from complainant (Yogendra Singh), Devendra and Mahesh also saw the incident. These three persons brought the deceased in injured condition firstly at their home and thereafter by keeping him in a tractor, went to the hospital Ambah, where the deceased was got admitted. On the report lodged by Yogendra Singh, a case under Section 307/ 34 of IPC was registered against the appellants, however, since the deceased breathed his last in the hospital, later on, it was converted under Section 302/ 34 of IPC. 4. On lodging of the First Information Report, criminal law was triggered and set in motion. On the report lodged by Yogendra Singh, a case under Section 307/ 34 of IPC was registered against the appellants, however, since the deceased breathed his last in the hospital, later on, it was converted under Section 302/ 34 of IPC. 4. On lodging of the First Information Report, criminal law was triggered and set in motion. The investigating agency sent the deceased, who was alive at that juncture, in the hospital; arrived at the spot and prepared the spot map; seized ordinary and blood stained earth from the place of occurrence; recorded the statements of the witnesses; after the death of the deceased prepared Panchayatnama of the dead-body and sent it for postmortem; also seized blood stained clothes of the deceased and sent it for chemical examination as well as seized the guns which were used in the commission of offence. 5. After the investigation was over, a charge-sheet was submitted in the committal Court which committed the case to the Court of Session and from where it was received by the Trial Court for the trial. 6. The learned Trial Judge on the basis of allegations made in the charge-sheet, framed charges against the appellants as referred in para 1 of the impugned judgment. However, they abjured their guilt and pleaded complete innocence. 7. In order to prove the charges, the prosecution examined as many as 15 witnesses and placed Ex.P-1 to Ex.P-27, the documents on record. The defence of the appellants is of alibi as well as of false implication and in support of their defence, they examined three witnesses, namely Shakuntala Devi (DW-1), Diwan Singh (DW-2) and appellant Arvind @ Chhota examined himself as DW-3. 8. The learned Trial Judge on the basis of evidence placed on record, came to hold that charges are not proved so far as the offences of the Arms Act are concerned and eventually acquitted the appellants from those charges. However, on the basis of evidence placed on record, learned Trial Judge came to hold that charge under Section 302 of IPC has been found to be proved against the appellants and eventually convicted them and passed the sentence which we have mentioned hereinabove. 9. In this manner, this appeal has been filed by the appellants assailing their judgment of conviction and order of sentence. 10. 9. In this manner, this appeal has been filed by the appellants assailing their judgment of conviction and order of sentence. 10. It has been put forth by Shri Atul Gupa and Shri Dhirendra Singh, learned Counsel for the appellants, that presence of eye-witnesses is highly doubtful because there are discrepancies in their testimony. It has also been put forth by learned Counsel that on account of enmity these appellants have been falsely roped and on the fateful day the appellants were not in the village and were at village Shivpuri. Learned Counsel further submits that compliance of Section 157 of Cr.P.C. is quite late, and therefore, it raises a heavy doubt about the authenticity of the case. On these premised submissions, it has been submitted by learned Counsel that by allowing this appeal, the appellants be acquitted. 11. Per contra, Shri M.P.S. Bhadauria, learned Public Prosecutor, argued in support of the impugned judgment and has submitted that there is unimpeachable testimony of eye-witnesses which cannot be ignored. It has also been put forth by him that even if the compliance of Section 157 of Cr.P.C. was made little late, it cannot be a ground to hold that appellants are innocent. Learned Public Prosecutor by inviting our attention to the testimony of eye-witnesses, has argued that their testimony is unimpeachable and from their testimony it is emphatically proved that appellants have fired the gunshots on the deceased which is also medically corroborated, and therefore, the plea of alibi set forth by appellants is nothing, but a concoction. Learned Public Prosecutor submits that learned Trial Court has assigned cogent reasons for convicting the appellants under Section 302 of IPC and for no rhyme or reason, the findings are required to be disturbed, and therefore, this appeal sans substance and the same be dismissed. 12. Having heard learned Counsel for the parties, we are of the considered view that this appeal deserves to be dismissed. 13. So far as the first contention of learned Counsel for the appellants that eye-witnesses namely Yogendra Singh (PW-2), Devendra Singh (PW-3) and Mahendra Singh (PW-5) are not reliable witnesses is concerned, suffice it to say that we do not find any merit in this contention. In very specific words Yogendra Singh (PW-2) has deposed that on the fateful day he alongwith the deceased went to evacuate during the morning hours. In very specific words Yogendra Singh (PW-2) has deposed that on the fateful day he alongwith the deceased went to evacuate during the morning hours. The deceased went for evacuation in the field of Munni, while this witness went to the field of Kalyan Singh. At that juncture, appellant Arvind @ Chhota by carrying double barrel gun, his brothers Ramshankar carrying Katta and Girjashankar having single barrel 12 bore gun came to the place where the deceased was evacuating and thereafter appellant Arvind @ Chhota hurled the abuse of mother to the deceased and thereafter fired the gun. On receiving the gunshot injury, the deceased fell down and screamed to rescue him. Immediately thereafter, the other two appellants fired their respective guns on the deceased and thereafter all the three appellants fled from the place of occurrence. Specifically, this witness is saying that Devendra and Mahendra have also seen the incident. In para 3 this witness says that the deceased was brought by him with the help of Devendra and Mahendra firstly to the home and thereafter by keeping the deceased in a tractor, this witness requested his brother Gajendra to carry the deceased, who was injured at that time, to Ambah hospital and this witness went to lodge first information report in the police Station, Ambah, alongwith his cousin brothers Devendra and Mahendra who are the eye-witnesses. On going through the first information report (Ex.P-1), which has been proved by this witness Yogendra Singh (PW-2), we find that that the incident occurred on 12.9.1998 at 8 in the morning and immediately within a period of 45 minutes the FIR was lodged in police Station, Ambah. In the first information report, it has been specifically mentioned that the author of FIR Yogendra Singh (PW-2) has come alongwith Devendra (PW-3) and Mahendra (PW-5). The presence of these two witnesses Devendra (PW-3) and Mahendra (PW-5) at the time of incident has also been stated in the FIR. The complainant Yogendra Singh was cross-examined at length, but nothing carved out from his testimony that he is not a reliable witness or he has not seen the incident. Firmly, this witness has stated that the incident occurred in his presence when he was evacuating in the field of Kalyan Singh. Learned Counsel could not point out how and in what manner the testimony of the author of FIR should be ignored. Firmly, this witness has stated that the incident occurred in his presence when he was evacuating in the field of Kalyan Singh. Learned Counsel could not point out how and in what manner the testimony of the author of FIR should be ignored. Although there are some contradictions and omissions, but according to us, they are not very much material as they are minor contradictions and omissions. In this manner, according to us, looking to the unimpeachable testimony of Yogendra Singh (PW-2), we are of the view that this witness has seen the appellants causing gunshot fire on the person of the deceased, on account of which he had died. 14. The evidence of author of FIR Yogendra Singh (PW-2) has been corroborated by the testimony of Devendra Singh (PW-3) and Mahendra Singh (PW-5). These two witnesses have also stated that in their presence the appellants fired the guns which they were carrying on the person of the deceased. True the deceased and the eye-witnesses are thickly related through blood, but this itself is no ground to discard their testimony if their testimony is otherwise found to be clear, cogent and trustworthy. The distinguishing feature while marshalling the evidence of related witnesses is that their testimony should be scrutinized with great care and caution. Indeed learned Trial Court and we too scrutinized the testimony of these three eye-witnesses with great care and caution and we find that their testimony is clear, cogent and trustworthy and learned Trial Court did not err in placing reliance on the evidence of these three eye-witnesses. 15. Needless to say, while undergoing the treatment the deceased died in Ambah hospital and after his death the investigating agency sent the dead-body of the deceased for postmortem. On going through the testimony of autopsy surgeon Dr. R.G. Verma (PW-6), who has proved his postmortem report (Ex.P-10), we find that evidence of eye-witnesses accusing the appellants and proving their role of causing gunshot fires to the deceased has also been corroborated by it. Specifically, the eyewitnesses are saying that each appellant fired the gun and autopsy surgeon also found three gunshot injuries. R.G. Verma (PW-6), who has proved his postmortem report (Ex.P-10), we find that evidence of eye-witnesses accusing the appellants and proving their role of causing gunshot fires to the deceased has also been corroborated by it. Specifically, the eyewitnesses are saying that each appellant fired the gun and autopsy surgeon also found three gunshot injuries. For better understanding, we would like to quote the injuries sustained by the deceased mentioned by autopsy surgeon in his postmortem report which is proved by him, they are: 1 .Gunshot wound of entry 2.0 x 1.8 cm over middle part of lateral aspect of right thigh. Blackening scorching is present. Edges irregular and inverted. Wound is directed downward backward and medially. Wound of exit 5.0 x 3.5 cm over right popliteal region. Structures lacerated. Plastic wad is found. Blackening and clotted blood present. 2. Gunshot wound of entry 2.0 x 1.2 cm present over medial aspect of upper part of left thigh. Edges inverted. Bleeding and clotted blood present. Direction downward, forward and laterally. Femoral artery, vein ruptured and other structures lacerated badly wound of exit 4.5 x 3.5 cm over lateral aspect of middle part of left thigh. Everted edges. Bleeding and clotted blood present. 3. Gunshot wound of entry 3.0 x 2.0 cm left side of root of penis. Edges inverted irregular directed backward, downward and just left to mid line. Tattooing present. Wound of exit 5.0 x 4.0 cm over perineum behind scrotum just left to anus. Bleeding and clotted blood present. 16. Looking to the unimpeachable testimony of eye-witnesses, which is also medically corroborated, we find that that learned Trial Court did not commit any error in convicting the appellants under Section 302 of IPC. The reasons assigned by learned Trial Court are based on correct appreciation of evidence and we do not want to deviate ourselves from those reasonings, hence, by this judgment, we extend our stamp of approval to those reasonings. 17. We do not find any merit in the contention of learned Counsel for the appellants that since the compliance of Section 157 of Cr.P.C. is little late as FIR was sent to the concerning magistrate after two days, the case of prosecution has become weaken. According to us, merely because the compliance was made little late viz. after two days, would in itself is no ground to hold that entire case of prosecution is concocted. According to us, merely because the compliance was made little late viz. after two days, would in itself is no ground to hold that entire case of prosecution is concocted. It be seen that the deceased did not die immediately and he was sent for treatment in the hospital and after the death of the deceased, the case was altered to Section 302 of IPC, and therefore, if some delay occurred in complying the procedure prescribed under Section 157 of Cr.P.C., according to us, entire case of prosecution cannot be said to be somersaulted. In these state of affairs, it was the responsibility of the police officer to reach the place of occurrence in the situation in his implicit duty and responsibility. It is also borne out that soon after the same incident these three appellants also murdered two persons namely Gambheer and Vijay Kumar and a separate case has been registered against them in which these appellants have been separately tried, and therefore, looking to the facts and circumstances as three persons were shot dead by the appellants, if two days delay has been occurred in sending the FIR report to the concerning magistrate, according to us, it will not even dilute the case of prosecution. Looking to the unimpeachable testimony of eye-witnesses even if some delay has been occurred, it will not demolish the case of prosecution which has otherwise been proved. In this context, we may also place reliance on the decisions of Supreme Court Shiv Ram and Anr. v. State of U.P. 1998 SCC (Cri) 278 and Animireddy Venkata Ramana and Ors. v. Public Prosecutor, High Court of Andhra Pradesh (2008) 5 SCC 368 . We also do not find any merit in the contention of learned Counsel for the appellants that appellants were not present at the place and the plea of alibi has been established. The evidence of defence witnesses as well as the testimony of accused/appellant No. 1-Arvind @ Chhota was marshalled vis a vis with the testimony of prosecution witnesses and learned Trial Court rightly came to hold that plea of alibi has been thrusted by the appellants and rightly did not rely the evidence of defence witnesses. The evidence of defence witnesses as well as the testimony of accused/appellant No. 1-Arvind @ Chhota was marshalled vis a vis with the testimony of prosecution witnesses and learned Trial Court rightly came to hold that plea of alibi has been thrusted by the appellants and rightly did not rely the evidence of defence witnesses. We have also gone through the testimony of defence witnesses and we too find that rightly they have not been placed reliance and story of alibi set up by the appellants is an after though idea. 18. This appeal is found to be bereft of any substance and the same is hereby dismissed.