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2013 DIGILAW 225 (MP)

State of M. P. v. Kallu @ Ravindra

2013-02-21

G.D.SAXENA, S.K.GANGELE

body2013
JUDGMENT : G.D. Saxena, J.;- The State has preferred this appeal under Section 378(1) of the Code of Criminal Procedure 1973 against a Judgment dated 14/9/99 in Sessions Trial No. 45/99 by the Fourth Additional Sessions Judge Bhind (M.P.), acquitting thereby accused/respondent No.2 of the charges for commission of offences under Sections 147 and 302/149 of I.P.C. (2) Brief facts, according to prosecution, which are necessary to dispose of this appeal are recapitulated as under:- 2. On 27/7/98, at around 2-30 o' clock, when Krishna Narayan Dixit Head Constable of P.S. Baraso, district Bhind on patrolling reached the area of village Adhujpura, a report report (Ex.P/12) was made to him by complainant Ramsahai s/o Puran (PW-14). Aforesaid report was to the effect that on the same day at 12 p.m., when the complainant was returning back to his house, he saw accused Ramsewak with a 12 bore gun, going to his brother Ramshankar, who at that time was laying at rest on a cot. It is alleged by him that with an intention to kill his brother Ramshankar, accused Ramsewak fired a shot which hit at left wrist of Ramshankar. In order to save himself, Ramshankar tried to run away, but he was followed and surrounded by other co-accused Raju @ Rajveer Singh, Ravindra @ Kallu (present respondent No.2), Rampal Singh, Pintu, Ganjendra Singh and Rameshwar. Then, Raju @ Rajveer Singh fired a shot with his gun which hit Ramshankar towards left side of back below the chest. Resultantly, Ramshankar fell down and died. When wife of the complainant Kusuma came to rescue his brother, she was threatened to life. Accused Ramsewak also followed the complainant but luckily he succeeded to run away. The incident on the spot was witnessed by Shivkumar, Surendra and Rajesh. 3. Accordingly, the report of the complainant in the shape of Dehati Nalishi, vide Ex.P/12 was forwarded to the police station and subsequently an FIR (Ex.P/11) was registered for commission of offence under Sections 147, 148,149 and 302 of I.P.C., against the accused-persons named above. After lodging the report, the investigation was set in motion. The dead-body of the deceased was sent for autopsy; case diary statements of the witnesses were recorded; accused were arrested; the weapons used in the crime were seized and sent for chemical examination to the State Forensic Science Laboratory. 4. After lodging the report, the investigation was set in motion. The dead-body of the deceased was sent for autopsy; case diary statements of the witnesses were recorded; accused were arrested; the weapons used in the crime were seized and sent for chemical examination to the State Forensic Science Laboratory. 4. After completion of usual formalities, the charge-sheet was filed before the court of Judicial Magistrate having the jurisdiction. On committal, the Sessions trial was commenced. (3) Before the trial court, the accused-persons pleaded not guilty to the charges and therefore they were put to trial. (4) The prosecution examined as many as nineteen witnesses and produced on record oral and documentary evidence. After the evidence of prosecution was over, statements of the accused were recorded by the trial Court under Section 313 of Cr.P.C. The defence of the accused was of total denial. (5) After hearing the prosecution as well as defence, the learned trial Judge came to acquit the accusedrespondents of all the charges, hence this appeal. (6) During pendency of appeal before this court, on account of death of respondent No.1-Ramsewak, his name was deleted from the array of the respondentsaccused and the appeal preferred by him therefore stood dismissed being abeted. Obviously, the appeal shall now proceed against the respondent No.2-Kallu @ Ravindra. (7) The State assailed the impugned judgment of acquittal on the grounds that the trial Judge passed the judgment of acquittal against the evidence on record and the law applicable to the case. It is contended that from the evidence of eye-witnesses, the previous enmity and the motive of the crime was apparent but despite that the evidence was ignored and the findings of acquittal were record in favour of the accused. It is further argued that the statements of eye-witnesses, though they were related to the deceased, are fully supported by the F.I.R. (Ex.P/11) lodged just after the incident, on the basis of Dehati Nalish vis-a-vis medical evidence, recovery of weapons of crime from the accused and also by the report of the Ballistic Expert, who examined the firearm recovered from the accused, the parts of cartridges recovered from the spot. On the basis of the above submissions, it is prayed that by allowing the appeal, the judgment of acquittal may kindly be set aside and the respondent No.2-accused may be convicted and punished in accordance with law. On the basis of the above submissions, it is prayed that by allowing the appeal, the judgment of acquittal may kindly be set aside and the respondent No.2-accused may be convicted and punished in accordance with law. (8) The learned counsel appearing on behalf of respondent No.2-accused, on the other hand, supported the judgment of acquittal and contended that the prosecution utterly failed to bring home the charge against the accused. It is submitted that the judgment of acquittal against the respondent No.2/accused is passed on the sound reasonings and as per the evidence of the case. Accordingly, it is prayed that by confirming the judgment of the trial court, the appeal preferred by the State may be dismissed. (9) Heard the learned counsel for the parties and also perused the evidence on record. (10) Now, we deem it appropriate to deal with the main reasons by which the trial court was compelled to judgment of acquittal. (11) As per prosecution's own case, when the deceased Ramshankar was laying at rest on a cot, at that juncture, accused Ramsewak with his 12 bore gun came to him and fired which hit his left hand. As soon as Ramshankar tried to escape, he was surrounded by other co-accused Raju @ Rajveer Singh, Ravindra @ Kallu (present respondent No.2), Rampal Singh, Pinchu, Ganjendra Singh and Rameshwar. Then accused Raju @ Rajveer Singh fired a shot with his gun which hit Ramshankar towards left side of back below the chest, resultantly, Ramshankar fell down and died. When wife of the complainant Kusuma came to rescue his brother, she was threatened to life. Apart from the complainant and his wife, other witnesses namely, Shivkumar (PW-7), Surendra (PW-3) and Rajesh (PW-11) are said to have seen the incident. In the evidence before the court, complainant Ramsahai (PW-14) has stated that when the first shot was fired, accused Kallu (respondent No.2) was present on the spot with a lathi and he surrounded the deceased. On hearing the sound of firing, his wife came out of the house but due to fear, she did not proceed head and saw the incident by standing at the door. He stated that thereafter, accused Ramsewak again fired a shot which hit on the left side of chest. His version is corroborated by other witnesses, namely, Shivkumar (PW-7), Surendra (PW-3) and Rajesh (PW-11). He stated that thereafter, accused Ramsewak again fired a shot which hit on the left side of chest. His version is corroborated by other witnesses, namely, Shivkumar (PW-7), Surendra (PW-3) and Rajesh (PW-11). So from the assessment of the evidence of these witnesses, it has come on record that the accused Kallu was only standing with a stick surrounding the deceased on the spot and he did not cause any injury to the deceased or any other persons from the complainant side. The postmortem report also suggested the same thing. (12) Thus, on going through the evidence of the witnesses aforesaid, it appears that there is no other witness who had any opportunity to see the incident with their naked eyes. Hence, after detailed examination of the depositions of the eye-witnesses, namely, Shivkumar (PW-7), Surendra (PW-3) and Rajesh (PW-11) and other witnesses's account, it is clearly evident that prior to the present incident, there were inimical relations between the deceased and accused Ramsewak on account of marriage of a son of the deceased. Accused Ramsewak due to take revenge had fired at the deceased and caused his death. This, in all, is the total sum of the prosecution evidence. Eventually, the learned trial Judge came to conclusion, after having appreciated the evidence as a whole of the prosecution case, that there was no iota of evidence against the accused-respondent No.2 to connect him with the alleged crime. (13) In the case of Manoj alias Bhau and others Vs. State of Maharashtra (AIR 1999 SC 68), the Apex Court has held:- “In this state of affairs it would be unsafe to convict appellants Nos. 2 and 3 by taking recourse to Section 149, IPC as necessary ingredients to attract the said Section as against accused Nos. 2 and 3 are totally absent. We have not discussed the role played by those accused persons who have not preferred any appeal, but suffice it to say that the eye-witnesses have ascribed positive role to those non-appealing persons as to how they have given blows on deceased- Raju.” (14) We have scanned carefully and thoroughly the record and proceedings of the trial Court. We have not discussed the role played by those accused persons who have not preferred any appeal, but suffice it to say that the eye-witnesses have ascribed positive role to those non-appealing persons as to how they have given blows on deceased- Raju.” (14) We have scanned carefully and thoroughly the record and proceedings of the trial Court. After appreciating the evidence and going through the reasons assigned by the trial Court for the acquittal carefully and further considering the vital features of the case and reasonable probabilities arising out of the circumstances of the matter, after taking into consideration the contentions raised by the learned Public Prosecutor for the appellant/State and the learned counsel for the respondent-accused,we come to hold that the prosecution failed to establish the charges against the respondent No.2-accused beyond reasonable doubt. (15) This being an appeal against acquittal, after reappreciating the evidence and scanning the reasonings of the learned trial Judge, it becomes clear that the view taken by the trial Court is the only view which could be taken from the evidence recorded. In acquittal appeals, interference is warranted only when it is found that the reasons given by the trial Court for acquittal are palpably wrong, manifestly erroneous, perverse or demonstrably unsustainable. (16) As discussed above, there is no evidence at all against the accused-respondent No.2 to connect him with the alleged crime for the charges levelled against him. The view taken by the trial Court is reasonable, plausible and possible view from the evidence recorded. The judgment and order impugned in the appeal therefore does not require any interference and hence, the appeal stands dismissed.