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Madhya Pradesh High Court · body

2012 DIGILAW 941 (MP)

Lalit Kishore v. State of M. P.

2012-09-28

N.K.GUPTA

body2012
JUDGMENT : (Deliveredon 28th day of September, 2012) Theappellant has preferred this appeal against the judgment dated 3.12.1996 passedby the Sessions Judge, Satna in S.T. No.174/95,whereby the appellant was convicted for the offence punishable under Section307 of IPC and sentenced for three years' R.I. with fine of Rs.1,000/-. Indefault of payment, he was to undergo for six months' R.I. in addition. 2.The prosecution’s case, in short is that, on 14.8.1994 at about 7:30 p.m. inthe evening, the complainant Rohini Prasad (PW-8) wasgoing from Kothi to his house situated at village Ranehi (Police Station Kothi ,District Satna ). He was accompanied parking hisvehicle and the complainant and other witnesses were talking to each other atthe spot, in the meantime the appellant alongwith hisbrother Khemchand appeared at the spot and fired froma gun. Some pellets struck in the right hand of the complainant. Thereafter,the appellant and his brother ran away from the spot. The complainant was takento the Police Station, Kothi , where he lodged an FIREx.P/10 (Ex.P/15 in S.T.No.33/95). He was directed for his medico legalexamination and treatment to Primary Health Centre, Kothi .Dr. A.K. Trivedi (PW-1) after examining thecomplainant Rohini Prasad, gavehis report Ex.P/1. He found four lacerated wounds on the right forearm of thecomplainant and in 4th wounds, he found a pellet andremoved that pellet also. After due investigation, a charge sheet was filedbefore the J.M.F.C. Satna , who committed the case tothe Sessions Court but the appellant was absconding and therefore, the entiretrial was proceeded against the accused Khemchand .Vide judgment dated 27.1.1995, the accused Khemchand was acquitted by the learned Sessions Judge, Satna from all the charges levelled against him.Thereafter, in November 1995, a supplementary charge sheet was filed and trialwas initiated before the Sessions Court against the appellant. 3.The appellant abjured his guilt. He took a specific plea that he was falselyimplicated in the matter due to enmity between the complainant and father ofthe appellant. Ram Sunder (DW-1) father of the complainant was examined as a defence witness to prove the plea of alibi. 4.The learned Sessions Judge, Satna after consideringthe evidence adduced by both the parties, convicted the appellant for theoffence punishable under Section 307 of IPC and sentenced him as mentionedabove. 5.I have heard the learned counsel for the parties. Ram Sunder (DW-1) father of the complainant was examined as a defence witness to prove the plea of alibi. 4.The learned Sessions Judge, Satna after consideringthe evidence adduced by both the parties, convicted the appellant for theoffence punishable under Section 307 of IPC and sentenced him as mentionedabove. 5.I have heard the learned counsel for the parties. 6.The learned counsel for the appellant has submitted that the incident tookplace after 7:30 p.m. in the eveningand the complainant had accepted in his statement before the Court during hisdeposition in S.T. No.33/95 that at the time of incident, there was dark.Hence, the complainant could not see the actual culprit. He had also acceptedin his deposition given in S.T. No.33/95 that he saw firearm in the hand of theaccused Khemchand and therefore, the testimony of thecomplainant appears to be doubtful. A grave enmity was there in between thecomplainant and father of the appellant and therefore, the complainant lodged afalse FIR against the appellant and his brother Khemchand without any reason. The testimony of the complainant was not at all corroboratedby any of the witnesses. Under such circumstances, it is prayed that the appealfiled by the appellant may be accepted and he may also be acquitted from thecharge levelled against him. In alternate, it issubmitted that the appellant remained in the jail for seven days and therefore,it is also prayed that he may not be sent to the jail again. 7.On the other hand, learned Public Prosecutor has submitted that it was aplanned incident committed by the appellant and his intention is visible. Hefired from the firearm upon the complainant and therefore, the conviction aswell as the sentence directed by the trial Court may be maintained. 8.After considering the submissions made by the learned counsel for the parties,it is to be considered as to whether the appeal filed by the appellant can beaccepted? And whether the sentence directed against him can be reduced? 9.In the present case, the complainant Rohini Prasad(PW-8), Hemraj (PW-2), Pramod Kumar (PW-3), Brajbhan (PW-6) and Yogendra Prasad (PW-9) were examined as eyewitnesses. The complainant Rohini Prasad has stated that the appellant and his brotherwere hidden in a bush and suddenly, the appellant fired from a handmade gunupon the victim, whereby he sustained some injuries on his right forearm. 9.In the present case, the complainant Rohini Prasad(PW-8), Hemraj (PW-2), Pramod Kumar (PW-3), Brajbhan (PW-6) and Yogendra Prasad (PW-9) were examined as eyewitnesses. The complainant Rohini Prasad has stated that the appellant and his brotherwere hidden in a bush and suddenly, the appellant fired from a handmade gunupon the victim, whereby he sustained some injuries on his right forearm. Onthe other hand, all the eyewitnesses including Hemraj Singh, Pramod Kumar, Brajbhan Singh and Yogendra Prasad have stated that they hearda sound of fire and they found that the complainant Rohini Prasad to be injured but they did not know as to who fired from the gun. Dr.A.K. Trivedi , (PW-1) has proved the MLC reportEx.P/1. He found four injuries to the complainant caused by the gunshot. Thepellets were stuck to the right forearm of the complainant. 10. Rohini Prasad (PW-8) had lodged an FIR Ex.P/10. HeadConstable Sidh Kumar Sharma (PW-7) wrote the FIR onthe same day at about 8:05 p.m. inthe evening. Prima facie, it appears that FIR was lodged within the reasonabletime. Looking at the statements given by various eyewitnesses, FIR Ex.P/10 andthe injuries proved by Dr. Trivedi , it is provedbeyond doubt that someone fired from the gun and the complainant sustained thegunshot injuries on his right forearm. However, those injuries were simple innature. 11.In the present case, only one point is to be considered that, who fired fromthe gun. The complainant alleged against the appellant as well as his brother Khemchand that both of them were hidden in a bush and outof them, the appellant had fired from a gun. Examination of the complainant Rohini Prasad took place for two times before the Court.Firstly, when the trial was proceeded against Khemchand and second time, when the trial was proceededagainst the present appellant. In the previous statementdeposed by the complainant Rohini Prasad in S.T.No.33/95 that at the time of incident, it was dark. He gave anexplanation that he started at about 7:00 p.m. in the evening from Kothi and took ½ an hour inreaching near the house of Brajbhan Singh. Under suchcircumstances, if the incident took place in the dark then there was nopossibility to the complainant to locate the origin of the fire that fire wasdone by the appellant or not. If he could locate the culprits then, how it ispossible that all the eyewitnesses could not see the appellant, when he firedfrom a gun. Under suchcircumstances, if the incident took place in the dark then there was nopossibility to the complainant to locate the origin of the fire that fire wasdone by the appellant or not. If he could locate the culprits then, how it ispossible that all the eyewitnesses could not see the appellant, when he firedfrom a gun. 12.Secondly, the complainant had accepted in his deposition done in the firsttrial that he saw the gun in the hand of Khemchand .If the fired took place upon the complainant and he saw the gun in the hand of Khemchand then, how he could say that the fire was done bythe present appellant and not by Khemchand . Undersuch circumstances, a doubt is created that amongst the appellant and Khemchand , who fired from the gun, whereas the accused Khemchand was acquitted by the trial Court from the chargesof offence punishable under Sections 307 and 307/34 of IPC. 13.The complainant has accepted that a criminal case was pending against him forlurking house trespass and theft done in the house of the appellant. Similarly,the allegation was directed by the appellant that the complainant took a electric wire over the house of the appellant and onecriminal case was also pending against the complainant that he fired upon thewitness Ram Sunder (DW-1), father of the appellant. Under such circumstances,it is apparent that there was a grave enmity between the parties. The enmity isa double edged weapon and due to enmity, anyone can assault other person anddue to enmity, anyone can falsely implicate to any other in a criminal matter. 14.As argued by the learned Public Prosecutor that, the FIR was lodged withinreasonable time but when there was a grave enmity between the parties and thecomplainant could not see the actual culprit, then it was easy for him to makeallegation against enmities. One hour's time was sufficient to make theallegations against the appellant and his brother. It is nowhere clear as towhy the complainant implicated the accused Khemchand ,brother of the appellant. If he had falsely implicated the accused Khemchand in the case, then he could implicate theappellant also in the case without any basis. One hour's time was sufficient to make theallegations against the appellant and his brother. It is nowhere clear as towhy the complainant implicated the accused Khemchand ,brother of the appellant. If he had falsely implicated the accused Khemchand in the case, then he could implicate theappellant also in the case without any basis. 15.Especially, when the other eyewitnesses have not corroborated the facts thatthe fire was done by the appellant then, the possibility cannot be ruled outthat the complainant had falsely implicated the appellant in the crime becausehe could not see the actual culprit due to darkness. Under such circumstances,a reasonable doubt is created in favour of the appellantthat whether he fired from the gun or his brother Khemchand fired from the gun or anyone else fired from the gun, therefore, theprosecution could not prove beyond doubt that it was the appellant, who firedfrom the gun to cause injuries to the complainant. If any doubt is createdthen, the benefit of doubt is to be given to the accused. Under suchcircumstances, where it was not proved beyond doubt that the appellant was theperson, who fired from the gun then, the appellant cannot be convicted for theoffence punishable under Section 307 of IPC or any inferior offence of samenature. Learned Sessions Judge has erred in convicting the appellant for theoffence punishable under Section 307 of IPC. 16.On the basis of aforesaid discussion, the present appeal filed by the appellantappears to be acceptable because a reasonable doubt is created in his favour . Consequently, the present appeal is hereby allowed.The conviction as well as the sentence directed against the appellant is herebyset aside. The appellant is acquitted from the charge of offence punishableunder Section 307 of IPC. He would be entitled to get the fine amount back, ifhe has deposited the same before the trial Court. 17.At present, the appellant is on bail. His presence is no more required beforethis Court and therefore, it is directed that his bail bonds shall standdischarged. 18.A copy of the judgment be sent to the trial Court alongwith its record for information and compliance.