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Madhya Pradesh High Court · body

2012 DIGILAW 949 (MP)

Munnalal @ Munna v. State of M. P.

2012-10-01

ANIL SHARMA

body2012
JUDGMENT 1. By this appeal Criminal Appeal No.285/2006 and Criminal Appeal No.295/2006 are going to be disposed of which arises from one judgment dated 25.3.2006 passed in S.T. No.46/05 by learned Additional Session Judge (NDPS), Gwalior, M.P. 2. Appellants in both these appeals have filed an appeal against judgment dated 25.3.2006 passed in S.T. No.46/05 by which they have been convicted for the offence punishable under section 307/34 of IPC and sentenced to undergo R.I. for five years each and fine of Rs.1,000/- each imposed upon them with default stipulation. 3. Brief facts of the case are that on 7.9.2004 at about 10:30 p.m., complainant Tan Singh and his brother Bahadur Singh were sitting out their house at Morar, Gwalior, it is alleged that accused Pokhan, Munna, Pulander and Chote reached there and Munna and Pokhan fired continuously by countrymade pistol. One of the fire injured Bahadur Singh on abdomen. Complainant Tan Singh took Bahadur Singh to hospital and lodged report also. On filing of challan, learned trial Court after trial of the four accused for the offence punishable under section 307/34 of IPC convicted the appellant Munna and Pokhan and sentenced them as mentioned in paragraph 2 of the judgment, while remaining two accused Chote @ Purushottam and Pulander Singh have been acquitted in the absence of evidence against them. 4. Being aggrieved by the impugned judgment, appellants have filed these appeals on the ground that learned trial Court is not justified in convicting them in the absence of recovery of any weapon, absence of any sign of fire on the spot and even absence of blood stains on the spot and overlooking the dying declaration of Bahadur Singh in which allegation has been made against four unknown persons while appellants were known to the complainants as they were having previous enmity. 5. The main question for consideration in these appeals are that whether learned trial Court is justified in convicting the appellants by the impugned judgment. 6. Learned counsel for the appellants have drawn attention towards the FIR Ex.P-3 lodged by Tan Singh, according to which Tan Singh and his brother Bahadur Singh were sitting outside the house and they were busy in conversation outside their house on cot at that time Munna and Pokhan came there and fired three times. 6. Learned counsel for the appellants have drawn attention towards the FIR Ex.P-3 lodged by Tan Singh, according to which Tan Singh and his brother Bahadur Singh were sitting outside the house and they were busy in conversation outside their house on cot at that time Munna and Pokhan came there and fired three times. One of the fire injured the abdomen above west while in evidence Bahadur Singh (PW2) has stated that when the accused came to his brother Tan Singh, he has gone some where. He immediately stood up and saw the accused persons and ran away inside his house at that time accused Munna fired upon him injuring his back. Thereafter, Pokhan has also fired which did not injure him. The fire hit the door of the house at that time his brother came back. Learned counsel for the appellants have submitted that Tan Singh (PW3) on the other hand has stated that he went for urination and when he heard the sound of firing, he came back at that time Munna and Pokhan were standing there having katta in their hands. Thereafter, he took his brother inside the house and closed the door. Then Pokhan has fired which hit the door of the house. Learned counsel for the appellants have submitted that there is contradiction in FIR and statements of Bahadur Singh (PW2) and Tan Singh (PW3) regarding place of incident and presence of accused as Tan Singh has mentioned the presence of accused as two persons and regarding the fact whether the fire injured the abdomen of the victim or back of the victim. 7. Learned counsel for the appellants have drawn attention towards the dying declaration Ex.D-3 of Bahadur Singh (PW2) recorded by doctor in the hospital on which Bahadur Singh (PW2) has admitted his signature on ‘A’ to ‘A’ portion in his statement which was recorded on 8.9.2004 at 9 a.m. He has made allegation against unknown four persons without naming them. Allegation of fire has been made only against one person, whose name was also not named in the statement. Although, the victim has not died after recording of statement Ex.D-3. Therefore, his statement has no value as dying declaration but it has got its relevance that as earlier statement of the victim in dying declaration (Ex.D-3). 8. Allegation of fire has been made only against one person, whose name was also not named in the statement. Although, the victim has not died after recording of statement Ex.D-3. Therefore, his statement has no value as dying declaration but it has got its relevance that as earlier statement of the victim in dying declaration (Ex.D-3). 8. Learned counsel for the appellants has submitted that FIR has been lodged against four named persons including the appellants and appellants were known to the complainant since long before the incident because it has been submitted by Bahadur Singh (PW2) that on report of accused Munna, case has been registered against him and his brother and against Naresh and Jagdish. It is further submitted by the learned counsel for the appellants that due to previous enmity appellants have been falsely implicated and i.e. why there is contradictions in the statement of Bahadur Singh (PW2) and Tan Singh (PW3) regarding the fire whether on abdomen of the victim or back of the victim. Further, at the time when second fire hit, the complainant was inside the house and door was closed and due to misfire, fire hit the door while complainant was running towards the room. 9. Learned counsel for the appellants have further drawn attention towards the statement of B.D. Ahirwar (PW8) who has stated that he did not find any blood stain at the spot, therefore, he did not make any panchnama of blood. Therefore, he prepared panchnama regarding absence of blood stains on the spot Ex.P-8. Spot map Ex.P-4 has been prepared by this witness. In ‘C’ to ‘C’ portion, a note has been written in small letters so that it can be adjusted between the description of spot map and signature of Tan Singh. Although, B.D. Ahirwar (PW8), has denied that ‘C’ to ‘C’ portion in Ex.P-4 has been added later on but it is apparent from the perusal of the spot map that note has been written after Tan Singh has signed the map in small size of words. 10. Although, B.D. Ahirwar (PW8), has denied that ‘C’ to ‘C’ portion in Ex.P-4 has been added later on but it is apparent from the perusal of the spot map that note has been written after Tan Singh has signed the map in small size of words. 10. According to memorandum prepared under section 27 of the Evidence Act Ex.P-5 accused Purushottam @ Chote has taken empty cartridge along with bullet fired from katta which was seized on the incident by seizure memo Ex.P-6 where Tan Singh (PW3) who reached the spot who according to report has seen the incident from the very beginning and according to the statement, he reached on the spot on which the fire has been made. This fact has not been mentioned that any of the accused took away the empty cartridge along with bullet cartridge. Even the statement of Tan Singh (PW3), the presence of Chote and Pulander Singh has not been mentioned. None of the independent witnesses has corroborated the statement of Tan Singh (PW3) 11. Therefore, considering the self-contradictory statement of Tan Singh (PW3) and Bahadur Singh (PW2) and further considering the fact that their stories are not only contradictory but also in contradiction with FIR. Ex.P-3 lodged by Tan Singh (PW3) and further more non-mention of name of any person in the dying declaration Ex.D-3 recorded next morning of the incident, learned trial Court is not justified in convicting the appellants by the impugned judgment. Therefore, appellants deserve the benefit of doubt even if dying declaration is not considered. Therefore, learned trial Court is not justified in convicting the appellants for the offence punishable under section 307/34 of IPC. 12. Therefore, both the appeals are allowed setting aside the impugned judgment of conviction, appellants are acquitted from the charges for the offence punishable under section 307/34 of IPC. The fine amount deposited by the appellants shall be refunded to them. Appellants were on bail. Their bail bonds stand discharged.