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2014 DIGILAW 540 (MP)

Yashpal Singh v. State of M. P.

2014-05-06

A.K.SHARMA, RAJENDRA MENON

body2014
ORDER 1. Learned counsel for the parties are heard on I.A. No. 10121/2013, an application under section 389 Cr. PC filed by the appellant for suspension of sentence of conviction and grant of bail. 2. From the records it is seen that the appellant herein is said to have fired with a gun, causing injuries to deceased Shri Sunil Naik. The incident took place on 27.11.2008, at about 4:45 p.m., when elections to the State Legislative Assembly were in progress and in Constituency No.45, Prithvipur in Polling Booth at Ward No.13 Naya Khera, District Tikamgarh, it was reported that the accused persons namely, Brijendra Singh, the sitting MLA, along with appellant Yashpal Singh, Vinay Singh, Krishnapal Singh and various other persons, were indulging in booth capturing and were instigating the voters not to vote for Shri Sunil Naik, but to vote for Shri Brijendra Singh. At this stage the followers and representatives of Shri Sunil Naik, who were present on the spot called him on a mobile phone and when he came there and inquired from the accused persons and Shri Brijendra Singh, the sitting MLA, as to why they were indulging in booth capturing and intimidating the voters, Shri Brijendra Singh is said to have instigated Yashpal Singh, the present 2 appellant, to fire and kill Shri Sunil Naik. As a result, appellant Yashpal Singh is said to have fired on Shri Sunil Naik, who suffered a gunshot injury on his head. He was taken to the Hospital in Tikamgarh, where he expired. The appellant has been prosecuted for an offence under section 302 IPC and having been convicted to undergo life imprisonment, has filed this appeal. 3. In support of his application under section 389, Shri Manish Datt, learned Senior Advocate, made a twofold submission. His first submission was that the allegations against the appellant are not proved. His second contention was that as appellant Yashpal Singh has also suffered a gunshot injury on his thigh, it is a case of self-defence and, therefore, the conviction under section 302 is unsustainable. 4. His first submission was that the allegations against the appellant are not proved. His second contention was that as appellant Yashpal Singh has also suffered a gunshot injury on his thigh, it is a case of self-defence and, therefore, the conviction under section 302 is unsustainable. 4. Shri Manish Datt, learned Senior Advocate, took us through the statement of PW-33 Prem Narayan, the gun man of Shri Sunil Naik; PW32 Devshankar Kurmi , another gunman; and, PW43 Ramesh Chandra Dogra, to say that the case as put forth by the prosecution is not proved from their statement and, therefore, the allegations against the appellant are not established. Learned Senior Advocate also took us through the report, Ex.D-12, with regard to the injuries sustained by appellant Yashpal Singh i.e. the first information report lodged with regard to the injuries sustained by Yashpal Singh; the medical evidence available, and tried to emphasize that based on the injuries sustained, FIR was also registered at the instance of Yashpal Singh, but the State Government filed an application for setting it aside and finally the High Court and the Supreme Court rejected the prayer of the State Government and the FIR was directed to be registered with regard to the injuries sustained by appellant Yashpal Singh. Contending that the prosecution has miserably failed to prove the facts leading to the sustaining of injury by appellant Yashpal Singh and placing reliance on various judgments of the Supreme Court, learned Senior Advocate tried to indicate that there being no explanation on the part of the prosecution with regard to the injuries sustained by the accused, the appellant is entitled for raising a plea of self-defence and the case of the prosecution should be dis-believed on this count itself. 5. Refuting the aforesaid, Shri Vijay Pandey, learned Deputy Advocate General, took us through the statement of more than 10 eye-witnesses, particularly PW8 Anurag Naik, the witness who had lodged the FIR; statement of an independent witness PW12 Mathiram; and, statement of various other eye-witnesses to say that all the witnesses have categorically stated that it was Yashpal Singh, the appellant, who fired on the deceased and, therefore, if believing the statement of more than 10 eye-witnesses, the appellant is convicted, there is no error in the same. 6. 6. As far as the plea of self-defence is concerned, learned Deputy Advocate General invites our attention to the findings recorded by the trial Court from paragraph 122 onwards, particularly the finding recorded in paragraph 134, to say that initially it was Yashpal Singh who fired on the deceased Shri Sunil Naik and thereafter as there was cross-firing by both the parties on each other, some gun short in such cross-firing would 4 have caused injuries to the appellant and, therefore, the plea of self-defence is not made out. 7. Shri A.M. Trivedi, learned Senior Advocate for the complainant, supported the case of the prosecution and also argued that the injuries sustained by appellant Yashpal Singh are self-inflicted injury, only to make out a case for self-defence to somehow avoid conviction and to say so he referred to the statement of a Doctor (DW4 - Dr. Atul Gupta). 8. Accordingly, they pray for dismissal of the application. 9. We have heard learned counsel for the parties and perused the record. 10. Statements of more than 10 eye-witnesses are available on record and the three witnesses namely, PW33 Prem Narayan; PW32 Devshankar Kurmi; and, PW43 Ramesh Chandra Dogra, on whose testimony heavy reliance was placed by Shri Manish Datt, learned Senior Advocate, have been declared as hostile, as they have retracted from the original story as narrated by them to the police authorities. However, an independent witness, who happened to be on the spot by chance is PW12 Mathiram. This witness was working in his field at the time of the incident and he has categorically stated that it was the appellant who fired on deceased Sunil Naik. He also states that when he heard a commotion in the area, he went to see as to what is the dispute and from the boundary wall of the school, he could see that appellant Yashpal Singh fired on Shri Sunil Naik, the bullet hit his head, he fell down and was taken to the Hospital. The story put forth and narrated by PW12 Mathiram, an independent witness, is corroborated from the statement of PW8 Anurag Naik and various other witnesses to the incident like Shri Bhupendra Agrawal, PW19; Shri Surendra Kumar Naik, PW21; Shri Mahendra Kumar Naik, PW18; and, Ramswaroop Naik, PW39. The story put forth and narrated by PW12 Mathiram, an independent witness, is corroborated from the statement of PW8 Anurag Naik and various other witnesses to the incident like Shri Bhupendra Agrawal, PW19; Shri Surendra Kumar Naik, PW21; Shri Mahendra Kumar Naik, PW18; and, Ramswaroop Naik, PW39. A complete reading of the statement of all these witnesses does show that the appellant along with Shri Brijendra Singh and others had gone to the polling booth and there is evidence to suggest that they were indulging in some illegal activity there, as a result when deceased Shri Sunil Naik came, there was some argument and altercation between the parties and in the process the appellant took out his gun and fired on the deceased. 11. That being so, based on the evidence available on record the case of the prosecution seems to be established and in convicting the appellant on such consideration, prima facie no error is committed by the Court below. 12. As far as the plea of self-defence is concerned, it is clear that it was the appellant who was more aggressive at the initial stage and he has fired first on the deceased and till that point of time he had not suffered any injury. Thereafter, the evidence does suggest that there was commotion, firing by both the parties and in the process the possibility of appellant Yashpal Singh having sustained an injury cannot be ruled out, because apart from Yashpal Singh even prosecution witness PW33 Prem Narayan had sustained injuries along with another witness one Smt. Urmila. Learned trial Court has considered all these aspects in detail and has held that the plea of self-defence is not made out. The reasonings and the justification given by the trial court in this regard prima facie seems to be correct and, therefore, in the totality of the circumstances we see no reason to allow the application for the present. 13. Thereafter, Shri Manish Datt, learned Senior Advocate, had also raised a contention that the appellant has been in custody for more than six years now, hearing of the appeal immediately in the near future is not possible and, therefore, he be granted bail. 14. For the present, we see no reason to accede to such a request. 15. Accordingly, in the facts and circumstances, finding no ground to release the appellant, the application I.A. No.10121/2013 stands dismissed. ...........