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Madhya Pradesh High Court · body

2018 DIGILAW 120 (MP)

Premlal v. State of M. P.

2018-01-30

NANDITA DUBEY, R.S.JHA

body2018
JUDGMENT Jha, J. -- 1. This appeal has been filed by the appellant being aggrieved by the Judgment dated 30.4.2007 passed by the Sessions Judge, Sagar in S.T. No.435/2006, whereby the appellant has been found guilty of an offence punishable under section 302 of the IPC and section 25 (1-B) (a) of the Arms Act and has been sentenced to Rigorous Imprisonment for Life with fine of Rs.500/- and Rigorous Imprisonment for 3 years with fine of Rs.200/-, with default stipulations respectively. 2. The prosecution case, in brief, is that the appellant's wife Guddi Bai (PW2) had left her husband's house and was staying with her parents the deceased Kausiya Bai and Sadar (PW1). According to the prosecution, there was a dispute between the family of the appellant and the family of the deceased with regard to Guddi Bai (PW2), wife of the appellant, as the deceased Kausiya Bai and her husband Sadar (PW1) were not sending Guddi Bai (PW2) to her in-laws' place. According to the prosecution, a Panchayat was constituted to resolve the dispute in which it was agreed by Sadar (PW1) that Guddi Bai (PW2) would go back to her in-laws' house 8 days after Kausiya Bai, who was pregnant would deliver a child. According to the prosecution, at about 8.00 PM on 17.6.2006, when Guddi Bai (PW2) was sitting along with her aunty Devka Bai, wife of Malkhan (PW5), she heard the sound of a gun shot and rushed to her house, whereupon she saw the appellant running out of the house with a country-made 12 bore pistol in his hand. When Guddi Bai (PW2) entered the room, she found her mother Kausiya Bai lying on the ground with a gun shot injury on her chest. According to the prosecution, Guddi Bai, thereafter, informed her father Sadar (PW1), who reached the spot at around 8.30 PM, who in turn asked Karan (PW4), his brother to go and lodge the report, whereupon the criminal law was set in motion. 3. According to Dr. B.D.Kirar (PW7), the deceased had suffered a gun shot injury on the chest which had totally damaged both her lungs as well as her heart due to which she succumbed to the injuries. The offending weapon i.e. the pistol is said to have been seized from the appellant vide Ex.P/11 in the presence of Jagan (PW6) and Ramesh (PW8). 4. B.D.Kirar (PW7), the deceased had suffered a gun shot injury on the chest which had totally damaged both her lungs as well as her heart due to which she succumbed to the injuries. The offending weapon i.e. the pistol is said to have been seized from the appellant vide Ex.P/11 in the presence of Jagan (PW6) and Ramesh (PW8). 4. The trial Court has recorded a finding of guilt against the appellant based upon the statement of Guddi Bai (PW2), who has stated that though she did not see the actual incident, however, she did see the appellant running away from the spot with a country-made pistol in his hand and that this statement of Guddi Bai (PW2) has been reiterated by Sadar (PW1), Karan (PW4) and Malkhan (PW5), all of whom have stated that they did not see the actual incident but were informed and told by Guddi Bai (PW2) that she saw the appellant running away from the spot with a pistol in his hand. 5. We have heard the learned counsel for the parties at length and have perused the oral and documentary evidence on record extensively and minutely. From a perusal thereof, it is apparent that there is no eye witness to the incident and that the only witness upon whom the trial Court has placed reliance is Guddi Bai (PW2), who states that she rushed to the spot on hearing the sound of the gun shot whereupon she saw the appellant running away from the spot with a pistol in his hand. However, the seizure of the pistol from the appellant has not been established on account of the fact that the two alleged seizure witnesses Jagan (PW6) and Ramesh (PW8) have denied the fact that any pistol was seized from the appellant in their presence or that the appellant produced the said weapon from his house in their presence. 6. Quite apart from the above, it is also pertinent to note that the opinion of the ballistic expert, Ex.P/17, clearly indicates that the weapon seized from the appellant was not in proper working condition as the firing pin was not striking the percussion cap with sufficient force and that the empty 12 bore shell that was seized from the appellant had not been fired from the pistol that was seized from the appellant. The ballistic expert in his report, Ex.P/17, has clearly given an empathetic opinion to the effect that the empty 12 bore shell that was seized from the appellant was not fired from the weapon i.e. the pistol that was seized from him. 7. It is also clear from a perusal of the statements of all the witnesses including Sadar (PW1), Guddi Bai (PW2), Krishnakant (PW3), Karan (PW4), Malkhan (PW5), Jagan (PW6) and Ramesh (PW8) that though the appellant lived in a different village, none of them had seen the appellant near the house of the deceased or in the village where the deceased lived, on the date of the incident at or about the time of the incident except for Guddi Bai (PW2) who has stated that when she reached the spot on hearing the sound of gun shot, she saw the appellant running away from the spot with a pistol in his hand. 8. In view of the aforesaid aspects, we are of the considered opinion that the trial Court has erred in law in placing complete and absolute reliance upon the statement of Guddi Bai (PW2) to record a finding of conviction against the appellant inspite of the fact that her statement does not find any corroboration or support from the other oral evidence or documentary evidence on record specifically the fact that the seizure of the weapon is not established or proved by the prosecution as the seizure witnesses Jagan (PW6) and Ramesh (PW8) have turned hostile and as the ballistic report, Ex.P/17, clearly states that the alleged weapon, said to have been used for commission of the crime, was not in a working condition and that the 12 bore empty shell seized from the appellant and said to have been used in the commission of the crime was not fired from the pistol seized from the appellant. 9. In view of the apparent conflict and contradiction between the oral statement of Guddi Bai (PW2) and the documentary and other evidence on record, we are of the considered opinion that the finding recorded by the trial Court cannot be sustained as the prosecution has clearly failed to establish or prove beyond reasonable doubt the fact that the appellant has committed the crime. 10. 10. In the circumstances, the judgment dated 30.4.2007 passed by the Sessions Judge, Sagar in S.T. No.435/2006 as well as the conviction of the appellant under section 302 of the IPC and section 25 (1-B) (a) of the Arms Act is hereby set aside. 11. The appeal, filed by the appellant, is allowed. It is stated that the appellant is in jail. He is directed to be released forthwith, if not required in any other case. A copy of this judgment be sent to the M.P. High Court Legal Services Committee for information. Anshul Tiwari, Amicus Curiae for appellant; Sudeep Deb, Government Advocate for respondent/State.