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Madhya Pradesh High Court · body

2017 DIGILAW 732 (MP)

Jai Prakash Tiwari v. State of M. P.

2017-05-26

ANJULI PALO

body2017
JUDGMENT : This appeal has been preferred under section 374(2) of the Code of Criminal Procedure against the judgment dated 18-8-2005 passed by learned First ASJ, Sidhi, in Session Trial No. 119/2003 whereby the appellant was convicted, under section 307/34 of Indian Penal Code and sentenced to undergo 3 years RI with fine of Rs. 500/- and for offence under sections 25(1)(b)(a) and 27(1) of Arms Act and sentenced to undergo 1 year RI with fine of Rs. 500/- and 3 years RI with fine of Rs. 1,000/- respectively, with default stipulations. Co-accused Padmdhar @ Pintu has been acquitted of the charges. 2. In brief, facts of the case are that, on 14-2-2003 at about 10:30 p.m., the appellant along with co-accused Padmdhar @ Pintu went to the house of complainant Sandeep (PW/2) and called him. When Sandeep came out, the appellant Jai Prakash fired at him with a 12 bore country made gun. His mother Uma (PW/3) saw the incident, Sandeep saved himself by running inside the house. The appellant Jai Prakash along with the coaccused scooted off on their motor-cycle. Complainant’s neighbours Rajat Shukla (PW/1), Amit Bhaseen (PW/10) and Vikas Shukla (PW/11) came there. They knew about the incident. FIR (Exh. P/10) was lodged at Police Station, Sidhi. After investigation, charge-sheet has been filed against the appellant and co-accused under section 307/34 of Indian Penal Code. Charges have been framed against them under section 307/34 of Indian Penal Code and sections 25(1)(b)(a) and 27(1) of Arms Act. 3. The learned trial Court found appellant Jai Prakash is guilty for offence under section 307/34 of Indian Penal Code and sections 25(1)(b)(a) and 27(1) of Arms Act. Appellant Jai Prakash intentionally attempted to commit murder of complainant Sandeep (PW/2). The fire arm used by the appellant was seized from him. Testimony of the complainant Sandeep (PW/2) was corroborated by his mother Uma (PW/3). After the incident, witnesses Amit Bhaseen (PW/10) and Vikas Shukla (PW/11) came to the spot and were known about the incident through the complainant Sandeep (PW/2) and his mother Uma (PW/3). 4. Defence witnesses Shankar Dayal Mishra (DW/1) and Krishna Kumar Tiwari (DW/2) deposed that at the time of incident, mother of the appellant was ill and was under treatment in her village. The appellant was busy in her treatment at village Meta and, therefore, was not present at the spot. 4. Defence witnesses Shankar Dayal Mishra (DW/1) and Krishna Kumar Tiwari (DW/2) deposed that at the time of incident, mother of the appellant was ill and was under treatment in her village. The appellant was busy in her treatment at village Meta and, therefore, was not present at the spot. Learned trial Court did not rely on the defence version and convicted appellant Jai Prakash under section 307 of Indian Penal Code and sections 25(1)(b)(a) and 27(1) of Arms Act while the other accused Padmdhar was acquitted from the charges in absence of any proof for his involvement. 5. The impugned judgment has been challenged on the grounds that, there are material contradictions in the evidence of prosecution witnesses. Family members of the complainant (Sandeep) are in police department, hence, they falsely implicated the appellant. The testimony of defence witness ought to have been accepted. Benefit of doubt should have been given to the appellant. But the learned trial Court has erred in convicting the appellant. Hence, learned counsel for the appellant pray to acquit the appellant. 6. Heard the learned counsel for the parties. Perused the record and impugned judgment. 7. Sandeep (PW/2) and his mother Uma (PW/3) are the main witnesses. At the time of incident, Uma (PW/3) was present on the spot. She has corroborated the testimony of her son Sandeep (PW/2). But she is a interested witness. Thus, close scrutiny of the testimony of these witnesses is essential. It is also not in dispute that, many family members of the complainant (Sandeep) are working in the police department. It may be possible that the appellant has been implicated by them for some reason. Sandeep (PW/2) deposed that the appellant came to his house and called him to come out, when he came out, the appellant fired on him by a country made pistol. He escaped running inside the house. Then his mother and 2-3 neighbours came there. When his mother asked – What happened? Then he narrated about the incident. 8. Rajat (PW/1) deposed that at about 12:00 to 1:00 p.m., he saw Sandeep (PW/2) with his mother. Amit Bhaseen (PW/10) has stated that he was residing just adjacent to the Sandeep’s house. He heard noises of some persons. Then he reached on the spot where Sandeep (PW/2) and his mother Uma (PW/3) gave intimation that Jai Prakash fired on Sandeep (PW/2). Amit Bhaseen (PW/10) has stated that he was residing just adjacent to the Sandeep’s house. He heard noises of some persons. Then he reached on the spot where Sandeep (PW/2) and his mother Uma (PW/3) gave intimation that Jai Prakash fired on Sandeep (PW/2). Vikas Shukla (PW/11) also heard the noise of fire, then he came out to the spot from his house. He also saw gathering in front of Sandeep’s house. Just after the incident, those witnesses knew that some thing happened there. Except Sandeep (PW/2) no one saw the appellant on the spot. At the time of the incident which occurred almost at mid night. Late night generally people go to sleep. Therefore, the testimony of Sandeep (PW/2) and his mother Uma (PW/3) is found reliable which is partly corroborated by the other witnesses. It is true that Rajat (PW/1), Amit Bhaseen (PW/10) and Vikas Shukla (PW/11) have not stated against the appellant and they are declared hostile. But their evidence could not be totally rejected. Some part of their evidence is in favour of the prosecution. The same can be relied for corroboration of prosecution story. 9. In case of State of U.P. vs. Ramesh Mishra and others, AIR 1996 SC 2766 , it is held that, it is settled law that the evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closes scrutiny and that portion of the evidence which is consistent with the case of the prosecution, may be accepted. 10. Further in cases of Ramesh and others vs. State of Haryana, 2017 Cri.L.J. 352, Zahira Habibullah Sheikh and another vs. State of Gujarat, AIR 2006 SC 1367 and State Tr. P.S. Lodhi Colony, New Delhi vs. Sanjeev Nanda, AIR 2012 SC 3104 , the Supreme Court has held that witness turning hostile is a major disturbing factor faced by the Criminal Courts in India. Reasons are many, for the witnesses turning hostile either due to monitory consideration or by other tempting offers which undermine the entire criminal justice system and people carry their impression that the mighty and powerful can always get away from the clutches of law. 11. Therefore, Court cannot, however, close their eyes to the disturbing factors, when some people was present on the spot turned hostile. 11. Therefore, Court cannot, however, close their eyes to the disturbing factors, when some people was present on the spot turned hostile. It is not in dispute that, due to fired by the appellant no injury has been sustained to the complainant Sandeep, but in cases of offence under section 307 of Indian Penal Code, it is not necessary that the injury must be caused. 12. In order to attract offence punishable under section 307 of Indian Penal Code, prosecution has to prove the intention or knowledge to commit murder and the actual act of trying to commit murder. Therefore, the word “such intention” found in section 307 of Indian Penal Code refers to the meaning “intention” referred under section 300 of Indian Penal Code. It means intention to cause death, intention to cause such bodily injury which the offender knows it as likely to cause death. The intention to cause such bodily injury which is sufficient in the ordinary course of nature to cause death is the essential element to attract the offence of attempt to murder. 13. Similarly, it is held in case of Sumersinh Umedsinh Rajput vs. State of Gujarat, AIR 2008 SC 904 that in order to constitute an offence under section 307 of Indian Penal Code, attempt to commit murder two elements are essential; first, the intention or knowledge to commit murder, secondly, actual act of trying to commit the murder. The question where a certain act amounts to the commission of particular offence is a question of fact dependent on the nature of the offence and steps necessary to take in order to commit it. No exhaustive and precise definition of what would amount to commit the murder offence is possible. 14. The Hon’ble Apex Court in the case of Hari Kishan and another vs. Sukhbir Singh and others, AIR 1988 SC 2127 , held that under section 307 of Indian Penal Code, what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge or the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of “attempt to murder”. Under section 307 of Indian Penal Code, the intention precedes the act attributed to the accused. The intention or knowledge or the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of “attempt to murder”. Under section 307 of Indian Penal Code, the intention precedes the act attributed to the accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. 15. In present case, the appellant targeted the complainant Sandeep, if the bullet comes with the contact of any part of the body of Sandeep, certainly it could be fatal for Sandeep (PW/2), if it injured his vital organ, death could have been caused in such condition. It is properly proved that the appellant intentionally fired at Sandeep to kill him, as luck would have it, Sandeep escaped unhurt. 16. Rahul Sharma (PW/9), Sub-Inspector has stated that, FIR (Exh. P-10) has been lodged on the same day the incident occurred. Sudhanshu Kumar (PW/4) corroborated the testimony of Rahul Sharma (PW/9). After he received the written application from the complainant, he endorsed the Rojnamcha Sanha as Exh. P-3. In such circumstances, prompt FIR has been lodged, removed the possibility to that the appellant was wrongly or falsely implicated by the complainant in a concocted story. 17. On 19-2-2003, the fire-arm was seized from the custody of the appellant, with the used cartridge. Shri Niwas Tiwari (PW/5) also deposed that in his presence police came to the appellant’s house and seized a country made pistol. He admitted his signatures also on the seizure memo (Exh.P-4 to Exh. P-6). He is not an interested witness. He is well known to the appellant. At cross-examination para 3, he confirmed that memorandum (Exh.P-4) was prepared in his presence. His testimony has not been rebutted by the defence counsel. Jai Bahadur Singh (PW/8) also corroborated the testimony of Shri Rahul Sharma (PW/9). Both of them have stated that in his presence one country made pistol was seized from the possession of the appellant which proves that according to memorandum of the appellant (Exh. P-4 and Exh. His testimony has not been rebutted by the defence counsel. Jai Bahadur Singh (PW/8) also corroborated the testimony of Shri Rahul Sharma (PW/9). Both of them have stated that in his presence one country made pistol was seized from the possession of the appellant which proves that according to memorandum of the appellant (Exh. P-4 and Exh. P-5) the aforesaid fire arm has been seized by the police which was used by the appellant. 18. Aforesaid seized fire arm (Article-A) has been produced before the trial Court. With the said fire arm police also seized one used cartridge (khokha) from the house of the appellant. With regard to seizure, the testimony of Rahul Sharma (PW/9) was unrebutted, hence found reliable. 19. Seized items were sent to FSL for examination. In the FSL report (Exh. P-12) it is found that fire arm (Article A-1) was in working condition and recently used for fire. Used cartridge tallied with test fire cartridge TCA-1, found similar FSL report also corroborated the prosecution story. The findings of learned trial Court are properly based on the prosecution evidence. It is true that some minor contradictions and omissions are there but it is not real due to this reason alone accused is not entitled for getting benefit of doubt. Such type of contradictions and omissions are naturally be originated which not adversely affected the original prosecution case. 20. Learned counsel for the appellant contended that the appellant has been falsely implicated in this case, at the time of incident he went to his village to look after his mother, which is proved by their defence witnesses Shankar Dayal Mishra (DW/1) and Krishna Kumar (DW/2). Learned trial Court did not rely the defence version. In the opinion of this Court two different versions has been taken by the defence. First is that, on the date of incident Valentine Day was being celebrated and Sandeep (PW/2) teasing some girls. The appellant objected to it, hence with the influence of his family members who were serving in Police Department, false report has been lodged by the complainant. In other hand the appellant has taken the “plea of alibi”, with regard to plea of alibi no suggestion has been given to prosecution witnesses. Both versions are contrary, it seems false defence is taken by the appellant after thought, hence not reliable. 21. In other hand the appellant has taken the “plea of alibi”, with regard to plea of alibi no suggestion has been given to prosecution witnesses. Both versions are contrary, it seems false defence is taken by the appellant after thought, hence not reliable. 21. The learned trial Court properly held the finding of conviction under section 307 of Indian Penal Code, does not call for any interference. 22. This Court is in agreement with the findings of learned trial Court that, defence taken by the appellant has not been suggested any prosecution witness, nor stated by the appellant during his accused statement under section 313 of the Code of Criminal Procedure. The plea of alibi has been taken by the appellant is after thought. Hence, no benefit is granted in favour of the appellant with regard to plea of alibi. Thus, the conviction of the appellant under section 307 of Indian Penal Code, is hereby maintained. 23. The appellant also convicted for offence under sections 25(1)(b)(a) and 27(1) of Arms Act. Earlier it is proved that one country made pistol along with used cartridge has been seized from the possession of the appellant. It is not disputed that the appellant has no valid license to use such fire arms. As per testimony of Hari Keshav Singh (PW/7) who was posted as Arms Clerk in the Office District Magistrate, Sidhi. Shri Agrawal granted sanction for prosecution against the appellant. Challenge has not been made by the appellant with regard to offence under section 25/27 of Arms Act. It is also proved that fire arm was used by the appellant for which he had no licence. It was used at public place for unlawful purpose. Therefore, learned trial Court rightly hold the appellant guilty for the offence under section 25(1)(b)(a) and section 27(1) of Arms Act. 24. Accordingly, the appeal preferred by the appellant is dismissed. The appellant is on bail, his bail bond stands discharged and he be sent back to jail forthwith to serve out his remaining period of jail sentence as sentenced by the trial Court.