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2018 DIGILAW 381 (MP)

Ravi Chowdhary v. State of M. P.

2018-04-05

J.K.MAHESHWARI, J.P.GUPTA

body2018
JUDGMENT Maheshwari, J.--1. These appeals under section 374(2) of the Code of Criminal Procedure have been filed by the appellants/accused being aggrieved by the judgment dated 23.1.2008 passed by the III Additional Sessions Judge (Fast Track Court), Katni, in ST No. 39/2007 convicting appellants Ravi Chowdhary and Hemant Jaat for the charge under section 302/34 of the Indian Penal Code (in short 'IPC') and appellant Daud for the charge under section 302 of IPC and section 25 of the Arms Act respectively. All the three appellants have been directed to undergo sentence of life imprisonment for the charge under section 302 and 302/34 of IPC and fine of Rs. 2,000/- each while appellant Daud has also been sentenced for the charge under section 25 of the Arms Act and to undergo two years imprisonment with fine of Rs. 500/-. In default of deposit of fine, additional imprisonment for six months and three months respectively. 2. The case of the prosecution, as alleged, is that PW5 Durgesh Nishar resident of Kavasi Ward, Katni lodged a report that on 9.1.2007 when Ashish (deceased), Dashrath and Golu were sitting beneath the Peepal tree near Sanyasi Baba Chabutara, at about 7.45 pm appellants Daud, Hemant Jaat and Ravi Chowdhary came there and Daud said to Ashish to leave old enmity and offered for liquor to Ashish. Daud gave Rs. 20/- and Ashish Rs. 5/-. Thereafter, Dashrath and Golu went to bring the liquor. The appellant Daud said to PW5 Durgesh Nishar to bring two Panama cigarettes so he brought the cigarette and gave it to Daud and Ashish. When Ashish was trying to ignite the cigarette, Hemant and Ravi caught hold of him and Hemant exhorted to Daud to kill Ashish then Daud took out a Deshi katta and fired a shot on the right side of the head of the deceased as a result of which he fell down and the blood was oozing from his head. When PW5 Durgesh Nishar was running away from the spot, the appellants chased him upto some distance, but, when after some time he came back alongwith his father on the spot, he saw that Chitta @ Mandraj Dubey and Ramraj (brother of deceased) took the deceased to the Hospital at Katni. During treatment, deceased died at Medical College, Jabalpur. 3. When PW5 Durgesh Nishar was running away from the spot, the appellants chased him upto some distance, but, when after some time he came back alongwith his father on the spot, he saw that Chitta @ Mandraj Dubey and Ramraj (brother of deceased) took the deceased to the Hospital at Katni. During treatment, deceased died at Medical College, Jabalpur. 3. After completion of investigation, challan was filed and the offence was registered against the appellants under section 302, 302/34 of IPC and section 25 of the Arms Act. As the offence was triable by the Court of sessions, therefore, it was made over by the District and Sessions Judge, Katni for trial to III Additional Sessions Judge, Katni where against appellants Ravi Chowdhary and Hemant Jaat charge under section 302/34 of IPC was framed while against appellant Daud the charge under section 302 of IPC and section 25 of the Arms Act was framed. The appellants/accused abjured their guild and demanded for trial taking a defence that they have been falsely implicated in the case. 4. The trial Court relying upon the testimony of PW5 Durgesh Nishar, PW4 Mandraj Dubey and PW8 Dashrath corroborating the same with the medical evidence of PW1 Dr. Y. Verma and PW14 Dr. K.P. Sakalye, who performed the MLC and autopsy respectively, convicted the appellants for the charge as framed against them and directed them to undergo sentence as described hereinabove. 5. Learned amicus curiae representing the appellants submits that though looking to the testimony of PW5 Durgesh Nishar, PW4 Mandraj Dubey, PW7 Golu and PW8 Dashrath corroborated by the medical evidence, the allegation of committing murder of deceased Ashish, as alleged against the appellants, found prove, but, as the appellants have already served the sentence of more then ten years and except one injury no other injury was found on the person of the deceased, the conviction of appellant Daud for the charge under section 302 of IPC may be converted into under section 304-I of IPC and he may be sentenced already undergone by him. So far as appellants Ravi Chowdhary and Hemant Jaat are concerned, if the testimony of the above said witnesses is looked into then it would be clear that PW5 Durgesh Nishar though was present on the spot and he saw Ravi Chowdhary and Hemant Jaat coming alongwith appellant Daud towards the place of incident, but, the allegation that Ravi Chowdhary and Hemant Jaat were having common intention to kill the deceased while they were holding the hands of deceased and also of exhorting has not been proved and the testimony of the said witnesses to such extent cannot be relied upon. It is further urged that PW7 Golu and PW8 Dashrat were not present on the spot at the time of causing injury by appellant Daud to deceased Ashish. So far as the act of appellants Ravi Chowdhary and Hemant Jaat is concerned, PW7 Golu and PW8 Dashrath are not the eye witnesses of the incident, however, their testimony regarding their presence prior to the incident can be relied upon. In such circumstances, the testimony of those witnesses is not sufficient to convict the appellants, however, giving benefit of doubt they may be acquitted and the judgment of conviction and sentence may be set aside. 6. On the other hand, learned Government Advocate, appearing on behalf of respondent-State submitted that it is a case wherein the eyewitness PW5 Durgesh Nishar, who was present on the spot alongwith the deceased, has specifically stated regarding presence of all the three appellants and ascribed the role of appellant Daud of firing shot by a Katta on the deceased Ashish and holding the hands of deceased by the appellants Ravi Chowdhary and Hemant Jaat, though when he tried to run away from the spot, the appellants chased him upto some distance, but, later he came back to the spot alongwith his father, however, the said testimony cannot be disbelieved. In addition to the aforesaid, in view of the testimony of other witnesses the presence of all the appellants on the spot cannot be doubted, therefore, the finding of conviction as recorded by the trial Court, for the charges as framed against them do not warrant any interference in these appeals, however, maintaining the finding of conviction and sentence as recorded by the trial Court, both these appeal may be dismissed. 7. 7. After having heard learned counsel for both the parties and after careful perusal of the statement of PW5 Durgesh Nishar, who is the complainant and the persons who was present on the spot along with the deceased Ashish at the time of incident, it is apparent that while the deceased was sitting alongwith PW7 Golu and PW8 Dashrath near Sanyasi Baba Chabutara at Kavasji Ward, Katni appellants Daud, Hemant Jaat and Ravi Chowdhary reached on the spot. Appellant Daud gave Rs. 20/- to deceased Ashish saying that leave all previous enmity and they will drink some liquor. It is further said by appellant Daud to deceased to contribute some more money so that the liquor may be brought then the deceased Ashish gave Rs. 5/- and thereafter Golu and Dashrath brought country made liquor. Appellant Daud told PW5 Durgesh Nishar to bring Panama Cigarette upon which he brought the cigarette from a shop situated in front. When deceased was igniting cigarette, all of a sudden Ravi Chowdhary and Hemant Jaat caught hold of him and Daud fired a shot by a country made pistol of 315 bore on the right side of the head of the deceased. The said injury was sufficient to cause death of the deceased in ordinary course of nature, as per the testimony of PW1 Dr. Y. Verma who performed the MLC and PW14 Dr. K.P. Sakalye who performed the autopsy. 8. After perusal of the cross-exmination of the said witnesses, nothing has come out to substantiate the defence of false implication put by the accused/appellants, although PW4 Mandraj Dubey appears to be a planted witness. The testimony of PW5 Durgesh Nishar, which remained in-ocular, finds support from the testimony of PW7 Golu and PW8 Dashrath who stated regarding presence of all the three appellants on the spot and also find support from other evidence brought on record. In our considered opinion, the finding of conviction recorded by the trial Court does not suffer from any illegality or perversity warranting interference in these appeals. 9. In our considered opinion, the finding of conviction recorded by the trial Court does not suffer from any illegality or perversity warranting interference in these appeals. 9. So far as the conviction of appellant Daud with respect to the offence under section 25 of the Arms Act is concerned it is apparent that the finding recorded by the trial Court in this regard is supported by the evidence brought on record by the prosecution as the seizure of the country made firearm has been proved which has been used in commission of the offence. 10. In view of the foregoing, the conviction of the appellant Daud for the charge under section 302 of IPC and section 25 of the Arms Act is hereby upheld maintaining the findings of the trial Court. Similarly, the finding of conviction and sentence with regard to appellants Ravi Chowdhary and Hemant Jaat under section 302/34 of IPC as directed by the trial Court is also maintained. 11. In the facts and circumstances of the case, where the charges have been brought at home by the prosecution supported by the cogent evidence, there is no reason to reduce the sentence as awarded by the trial Court. 12. In view of the aforesaid, the appeals filed by the appellants are hereby dismissed being devoid of any merit. The appellant Hemant Jaat is on bail. He is directed to surrender before the trial Court forthwith. 13. A copy of this judgment be sent to the jail authorities as well as to the Court concerned for necessary action. 14. At the end, it is our duty to record the words of appreciation in favour of the amicus curaie who has assisted this Court in disposal of this appeal which was pending since 2008 wherein the accused were in custody since last ten years, however, his assistance is hereby acknowledged.