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Madhya Pradesh High Court · body

2016 DIGILAW 686 (MP)

Rajeev v. State of M. P.

2016-08-10

N.K.GUPTA, VIVEK AGARWAL

body2016
JUDGMENT Gupta, J. 1. -- The appellant has preferred the present appeal being aggrieved with the judgment dated 27.7.2007 passed by the Additional Sessions Judge, Lahar District Bhind in S.T. No.161/2005, whereby the appellant Rajeev has been convicted of offence under section 302 of IPC and sentenced to life imprisonment with fine of Rs.50,000/-, in default of payment of fine, five years rigorous imprisonment. 2. Facts of the case, in short, are that, on 26.4.2005 the election of President, Gram Vikas Samiti, village Devrikala was fixed at Gram Panchayat Bhawan. At about 1:30 p.m. so many persons were present in Panchayat Bhawan relating to election. Rajkishore Dubey uncle of the complainant Ajeet Kumar was also contesting the election against one Bhagwati Prasad Dubey. Looking to the view of the persons present, there was possibility that Rajkishore Dubey would have won and, therefore, Bhagwati Prasad, Janki and Lalman etc. were taking the followers of Bhagwati Prasad to one side, whereas the followers of Rajkishore objected that the election cannot be done by such a method. The appellant Rajeev along with co-accused Basant and Sanjeev, who had firearms in their hands shouted in the crowd and threatened the persons present to sit down otherwise they would fire from the guns. Appellant Rajeev shot a fire from his 12 bore gun causing injury on the left chest of one Rameshchand Dubey father of the complainant Ajeet Kumar, thereafter Basant Kumar fired with a gun causing injury in the left arm of Rameshchand Dubey. The accused Bhagwatiprasad fired with a gun of Sanjeev causing injury on right leg of Tilak. Rameshchand Dubey and Tilak fell down on the ground and accused persons ran away. Ajeet Kumar had immediately lodged a Dehati Nalisi Ex.P-14, in which he roped up as many as nine accused persons in the case. The deceased Rameshchand Dubey was taken to the hospital. Dr. K.D. Singh (PW4) examined Rameshchand and gave his report Ex.P-9. He found one entry wound of size 2x1/2 inches which was muscle deep over left ante arm anterolateral at upper 1/3 space (i.e. below the axilla). He also found one exit wound on the left side of the chest having size 10x5 inches in between second to fourth intercostal space. He referred the patient Rameshchand for X-ray examination and treatment. Dr. K.D. Singh (PW4) also examined the victim Tilak Singh and gave his report Ex.P-7. He also found one exit wound on the left side of the chest having size 10x5 inches in between second to fourth intercostal space. He referred the patient Rameshchand for X-ray examination and treatment. Dr. K.D. Singh (PW4) also examined the victim Tilak Singh and gave his report Ex.P-7. One punctured wound was found on his right knee caused by firearm. In presence of Dr. K.D. Singh, the Executive Magistrate Shri Devdatt Sharma (PW19) recorded the dying declaration of Rameshchand Ex.P-11, in which Rameshchand told that fire was done to him by the appellant Rajeev and one Bhagwatiprasad. 3. Rameshchand had expired on the same day and, thereafter Dr. K.D. Singh performed the postmortem on his body and gave his report Ex.P-13. He found the aforesaid wounds on his body and on opening he found that left lung was punctured and blood was collected in the cavity. The deceased died due to profuse bleeding caused by gunshot. In investigation, Investigation Officer recorded the evidence of various witnesses including Pratipal Singh (PW15). A gun was recovered from the appellant Rajeev and a seizure memo Ex.P-30 was prepared. After due investigation, the charge-sheet was filed against various accused persons including the appellant Rajeev but investigation was kept pending against the accused Bhagwatiprasad. Case was committed to the Court of Session. Ultimately, it was transferred to Additional Sessions Judge, Lahar District Bhind. 4. The appellant abjured his guilt. He did not take any specific plea but he has stated that he was falsely implicated due to political enmity. Since trial was done against eight persons, therefore, various defence witnesses were examined by various accused persons. Ramsharan Dubey (DW3) was examined to show that the witness Pratipal Singh had enmity with the appellant Rajeev. 5. After considering the evidence adduced by the parties, the trial Court acquitted all other accused persons from all the charges, whereas the appellant Rajeev is acquitted from all other charges except of offence under section 302 of IPC and sentenced as mentioned above. 6. We have heard the learned counsel for the parties at length. 7. In the present case, the MLC report of the deceased Ramesh is of much importance, which was recorded by Dr. K.D. Singh (PW4). According to Dr. 6. We have heard the learned counsel for the parties at length. 7. In the present case, the MLC report of the deceased Ramesh is of much importance, which was recorded by Dr. K.D. Singh (PW4). According to Dr. Singh, there was an entry wound near the left hand, on extreme left side of the chest at left ante arm anterolateral aspect and there was an exit wound on the left chest. Thereafter Dr. K.D. Singh performed the post-mortem on the body of Rameshchand Dubey and gave his report Ex.P-13. He had opined that on opening, left lung was found punctured and a huge blood was collected in the cavity. According to Dr. K.D. Singh, the injury caused to the deceased Rameshchand was sufficient to cause death in routine of natural life. Under these circumstances, it would be very much clear that death of the deceased Rameshchand was homicidal in nature. 8. In the present matter, almost all eyewitnesses namely Ajeet Kumar (PW5), injured witness Tilak Singh (PW6), Rajkishore Dubey (PW7), Anand Kumar Sharma (PW8), Rajendra Dubey (PW10) and Matadeen (PW11) have turned hostile. They have stated that Tilak Singh sustained injury due to fire done and Rameshchand sustained fatal injury due to fires done. However, they did not say that fires were done by the appellant Rajeev or any other accused. Only Pratipal Singh (PW15) has clearly stated that Rajeev fired with the gun and Rameshchand Dubey sustained gunshot injury. He has also accepted that Tilak Singh sustained injury of gunshot. In the cross-examination, various suggestions were given to him relating to enmity of Pratipal Singh with the appellant Rajeev. He has accepted that Rajeev had lodged an FIR against the victim Pratipal Singh and a sessions trial was initiated against him in the year 1998. He has also accepted that in one case, he was convicted. Hence, it is established that Pratipal Singh had a personal enmity with the appellant Rajeev and, therefore, his statement should be considered with caution. 9. It was categorically stated by Pratipal Singh that the appellant Rajeev fired with the gun and in para 7, he has accepted that due to firing of Rajeev, an injury was caused near the chest of the deceased Rameshchand. 9. It was categorically stated by Pratipal Singh that the appellant Rajeev fired with the gun and in para 7, he has accepted that due to firing of Rajeev, an injury was caused near the chest of the deceased Rameshchand. In para 10, he has further stated that first fire done by the appellant Rajeev caused injury on the chest of Rameshchand and, thereafter, second fire was done by someone and he sustained injury near his hand. If in this connection, the MLC report Ex.P-9 as well as the postmortem report Ex.P-13 are considered then the deceased Rameshchand sustained a single injury of gunshot. The wound found on the left chest of the deceased Rameshchand was the exit wound of gunshot and, therefore, on the basis of medical evidence, it is very much clear that the deceased sustained only one injury of gunshot. He did not receive two gunshots on his chest. However, such discrepancy between the medical evidence and the ocular evidence may be considered again while considering the dying declaration of the deceased Ramesh. Also the testimony of Pratipal Singh may be considered on the basis of corroborative evidence. 10. Since all the eyewitnesses except Pratipal Singh have turned hostile. They could not say as to whose fire, the deceased Rameshchand sustained injuries. It is for the prosecution to establish its case with help of corroborative piece of evidence. On the record, there are three types of corroborative evidence available in the record. Firstly the evidence of dying declaration, secondly the Dehati Nalisi Ex.P-14 proved by ASI Ramesh Singh Bhadoriya (PW18) and thirdly that a gun was recovered from the appellant Rajeev by a seizure memo Ex.P-30. If recovery of that gun is considered on merits then the appellant could not be convicted of offence under section 25/27 of Arms Act because no prosecution sanction was obtained from the District Magistrate, whereas it was alleged that three persons had fired with the guns at the spot and guns were recovered from the appellant Rajeev and also co-accused Basant Kumar. There is no document on record to show that guns were sent for forensic science examination or empty cartridges were sent for ballistic examination. In absence of any matching hammer mark, it cannot be said that if the appellant had a gun, he would have fired with the gun. There is no document on record to show that guns were sent for forensic science examination or empty cartridges were sent for ballistic examination. In absence of any matching hammer mark, it cannot be said that if the appellant had a gun, he would have fired with the gun. Possibility cannot be ruled out that at the time of incident, gun fired by someone else would have caused injury of gunshot to the deceased Rameshchand. Hence, only by seizure of gun, no adverse circumstance is created against the appellant Rajeev. 11. So far as the dying declaration Ex.P-11 is concerned, it is proved by Executive Magistrate Shri Devdatt Sharma (PW19) with help of Dr. K.D. Singh. Shri Devdatt Sharma recorded the dying declaration in question answer form. Dr. K.D. Singh gave a certificate in beginning of the dying declaration and also at the end of dying declaration that the deceased was fit in condition to give the dying declaration. Shri Devdatt Sharma has further stated that before recording the dying declaration, he ousted everybody from the ward. He accepted in the cross-examination that some persons were surrounded the deceased Rameshchand and Rameshchand was talking with them. When persons were removed from the ward, Rameshchand was temporarily unconscious, when doctor pushed him and asked the question, thereafter he became conscious and gave appropriate reply. After closure of the dying declaration, the doctor examined again and the deceased Rameshchand was fit to give the evidence. Looking to the cross-examination of these witnesses, it cannot be said that the deceased Rameshchand was not in a position to give the dying declaration. It would be apparent from the opinion of Dr. K.D. Singh that basically Rameshchand sustained an injury on his left lung. Anyone can survive with help of single lung for few hours but looking to the various circumstances of this case, it appears that due to internal bleeding from the left lung, ultimately Rameshchand became unconscious and, thereafter he died. The dying declaration was recorded on 26.6.2005 at about 2:55 p.m., whereas the incident took place at about 1:30 p.m. Hence, the opinion of Dr. K.D. Singh is acceptable that the deceased was competent to give the statement at the time when dying declaration was recorded by Executive Magistrate Shri Devdatt Sharma. In this connection, the testimony of Dr. K.D. Singh and Shri Devdatt Sharma is acceptable. 12. K.D. Singh is acceptable that the deceased was competent to give the statement at the time when dying declaration was recorded by Executive Magistrate Shri Devdatt Sharma. In this connection, the testimony of Dr. K.D. Singh and Shri Devdatt Sharma is acceptable. 12. Learned counsel for the appellant has placed his reliance upon the various judgments of the Supreme Court to show that dying declaration was to be discarded. Reliance is placed on the judgment in case of Dandu Lakshmi Reddy v. State of A.P. [1999 AIR SC 3255], in which it is held that if the Court has slight doubt about the mental soundness of the author of the dying declaration, it would be unsafe to base a conviction on such a statement. In the present case, it is established by the Executive Magistrate Shri Devdatt Sharma and Dr. K.D. Singh that the deceased was conscious when his statement was recorded and, therefore, due to factual difference, the judgment passed by the apex Court in case of Dandu Laxmi Reddi (supra), cannot be applied on this point. Similarly, reliance has been placed upon the judgment passed by the apex Court in case of Darshan Singh Alias Bhasuri : Joga Singh v. State of Punjab [ AIR 1983 SC 554 ], in which it is held that a much value has been attached to a dying declaration especially when it is corroborated by other evidence. However, the judgment passed in case of Darshan Singh (supra), was dependent upon different set of facts. In case Balbir Singh and another v. State of Punjab [2006 AIR SC 3221], in which it is held that law does not provide that a dying declaration should be made in any prescribed manner or in question and answer form. In that case, it is also held that only because a dying declaration was not recorded by a Magistrate, it cannot be discarded only on that ground. In the present case, the dying declaration Ex.P-11 has been recorded in question answer form and it is recorded by the Executive Magistrate (Tahsildar). Hence, law laid in case of Balbir Singh (supra), cannot be applied in the present case. In the present case, the dying declaration Ex.P-11 has been recorded in question answer form and it is recorded by the Executive Magistrate (Tahsildar). Hence, law laid in case of Balbir Singh (supra), cannot be applied in the present case. Learned counsel for the appellant has placed his reliance upon the judgment passed by the apex Court in case of Uka Ram v. State of Rajasthan [2001 AIR SC 1814], in which it is held that the Court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or the product of imagination. 13. In the light of this judgment, if facts of the present case are examined then it would be apparent that in dying declaration Ex.P-11 the deceased Rameshchand had stated that he received fires done by Bhagwati and Rajeev. It was not mentioned clearly that whose fire struck at which place of the body of the deceased Rameshchand. It would be pertinent to note that Rameshchand sustained a single injury of gunshot though that gunshot caused one inlet wound and another exit wound and, therefore, the statement given by Rameshchand appears to be doubtful that his statement was dependent upon his own experience or due to tutoring done by someone else. It was accepted by Executive Magistrate Shri Devdatt Sharma that when he went inside the ward, the deceased Rameshchand was surrounded by so many persons and he was talking to them. It would also be pertinent to note that the deceased Rameshchand blamed the appellant Rajeev as well as Bhagwati but the police did not file any charge-sheet against the accused Bhagwati. Charge-sheet was kept pending in investigation for the accused Bhagwati, which indicates that even the Investigation Officer had no faith on the dying declaration given by the deceased Rameshchand against the accused Bhagwati. In this connection, if Dehati Nalisi Ex.P-14 is considered then it was mentioned in the document that shot fired by another person had struck on left side of the chest near the hand. No eye-witness has stated to the police that second shot was fired by Bhagwati. However, looking to the post-mortem report, the second shot was actually shot, which caused two injuries; one inlet wound and another exit wound, whereas the deceased Rameshchand did not receive any gunshot on the chest directly. No eye-witness has stated to the police that second shot was fired by Bhagwati. However, looking to the post-mortem report, the second shot was actually shot, which caused two injuries; one inlet wound and another exit wound, whereas the deceased Rameshchand did not receive any gunshot on the chest directly. Actually a wound caused on the chest was exit wound of the gunshot hit him on the extreme left side of the chest. 14. It would be also clear from the post-mortem report that the inlet wound caused on the extreme left side of the chest near the hand and, thereafter, bullet came out from the left side of the chest and, therefore, the author of the inlet wound must be on the left side of the deceased when he fired with the gun and he should also be slightly on the back side otherwise the bullet fired by him could not come out from the front side of the chest and it was not possible for the deceased Rameshchand to see that who fired upon him. Looking to the facts as mentioned in the dying declaration Ex.P-11 and the actual position of wound, it would be apparent that the dying declaration given by the deceased Rameshchand was dependent upon the information given by someone else, it was not dependent upon his own information, when bullet struck on his body, therefore, the dying declaration Ex.P-11 is nothing but a tutored version of the facts as tutored by someone else to the deceased Rameshchand. Hence, in the light of judgment passed by the apex Court in case of Uka Ram (supra), the dying declaration Ex.P-11 cannot be believed. 15. Learned counsel for the State has submitted that evidence of eyewitness Pratipal Singh was also confirmed by Dehati Nalisi Ex.P-14 proved by ASI Ramesh Singh Bhadoriya (PW8). It is true that FIR is a document, which can be either proved by the complainant, i.e., the person, who told the story to the writer of the FIR and appended his signature at the bottom of the FIR and it can be proved by the person, who wrote the facts told by the complainant. Ajeet Singh (PW5) who lodged Dehati Nalisi Ex.P-14 has turned hostile but the same was proved by ASI Ramesh Singh Bhadoriya (PW8). Ajeet Singh (PW5) who lodged Dehati Nalisi Ex.P-14 has turned hostile but the same was proved by ASI Ramesh Singh Bhadoriya (PW8). If text of Dehati Nalisi Ex.P-14 is perused then it is mentioned that the appellant Rajeev fired with 12 bore gun causing injury to the deceased Rameshchand on left side of the chest and second fire was done by Basant Kumar, which caused injury on his left arm. The fact about the second fire as done in Dehati Nalisi Ex.P-14 is contradictory to the dying declaration Ex.P-11 given by the deceased Rameshchand. According to the dying declaration Ex.P-11, second fire was done by the accused Bhagwati, whereas in Dehati Nalisi, it was mentioned that second fire was done by Basant Kumar. If Basant Kumar would have fired with the gun then there was no problem to the deceased Rameshchand to inform about that fire. Dehati Nalisi Ex.P-14 was written at about 2:00 p.m., whereas the dying declaration Ex. P-11 was recorded at 2:55 p.m. Looking to the material contradiction about the second fire and along with the fact that the deceased Rameshchand sustained no injury of gunshot directly on the left side of the chest and actually the wound found on the chest was exit wound, the FIR looses its evidentiary value. 16. If it is presumed that the witness Pratipal Singh is telling a truth and Dehati Nalisi Ex.P-14 is also correct relating to overt act of the appellant Rajeev but on the basis of the post-mortem report, it is apparent that the second gunshot did not cause any injury on the left arm of the deceased but that was a joint injury of first shot by which the bullet entered in the extreme left side of the chest and came out from the left chest and, therefore, the culprit, who caused the death of the deceased Rameshchand, was the person whose gunshot struck to the deceased Rameshchand near his left arm. Hence, in the light of Dehati Nalisi Ex.P-14 and evidence of Pratipal Singh, whereas it is alleged that the appellant Rajeev fired with a gun causing injury on left chest of the deceased Rameshchand then in absence of any entry wound at that place, neither the statement of Pratipal Singh can be accepted as eye-witness nor the dying declaration Ex.P-11 or FIR Ex.P-14 can be relied upon. 17. 17. Under these circumstances, where all other eye-witnesses have turned hostile and medical evidence is contradictory to evidence of Pratipal Singh as well as the FIR (Dehati Nalisi) Ex.P-14, hence, it is not proved beyond doubt that the appellant Rajeev fired with the gun and caused death of the deceased Rameshchand. In the light of the post-mortem report, if factual position of the case emerges by the documents, is considered then according to the dying declaration, second shot was given by the accused Bhagwati, whereas according to the FIR, the second shot was given by the accused Basant Kumar. However, no charge-sheet was filed against the accused Bhagwati, whereas the trial Court has acquitted the accused Basant Kumar from the charge of section 302 of IPC. Hence, it appears that the trial Court did not take notice of entry wound and exit wound found on the body of the deceased and it was not considered that there was no entry wound on the left side of the chest of the deceased. Hence, the allegation against the appellant that he fired with the gun causing injury on the left side of the chest of the deceased cannot be accepted. 18. If entire facts of the case are considered then in an election meeting, suddenly a quarrel started and three persons have fired with the various guns. It is alleged initially by the witnesses that it was the appellant Rajeev, who fired with the gun causing injury on the left side of the chest of the deceased Rameshchand and thereafter the Investigation Officer and other witnesses left their concentration to the other accused persons by presuming that the injury caused near the left arm was caused due to second shot, whereas that was the inlet wound of first and only shot and bullet came out from the exit wound on the left side of the chest of the deceased and, therefore, the culprit of murder was the person, whose shot received by the deceased Rameshchand near the left arm and evidently there is no allegation against the appellant Rajeev that he fired with the gun and bullet struck near the left arm of the deceased Rameshchand. It would be appropriate to repeat that the entry wound of gun was on extreme left side of the chest of the deceased Rameshchand and it was not possible for him to view the culprit, whereas according to the witnesses, the appellant Rajeev was standing in front of the deceased Rameshchand, who could not cause such an oblique injury of gunshot to the deceased Rameshchand when he was on his front side. 19. On the basis of the aforesaid discussion, where it is proved that death of the deceased Rameshchand was homicidal in nature and he died due to a single gunshot injury but it was not proved beyond doubt that the appellant Rajeev was the person whose fire struck to the deceased Rameshchand causing his death and, therefore, the appellant Rajeev cannot convicted of offence under section 302 of IPC or any inferior offence of the same nature. 20. On the basis of the aforesaid discussions, it would be apparent that the trial Court has overlooked the position of entry and exit wounds and wrongly convicted the appellant Rajeev, therefore, the present appeal appears to be acceptable and consequently, it is allowed. Conviction as well as the sentence recorded by the trial Court against the appellant Rajeev are hereby set aside. He is acquitted from the charge of section 302 of IPC. 21. The appellant Rajeev is in jail. A release warrant be immediately issued so that he may be released from the jail without any delay. 22. Copy of the judgment be sent to the Court below along with its record for information and compliance.