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2020 DIGILAW 546 (MP)

Chandan v. State Of M. P.

2020-05-12

ANAND PATHAK, VISHAL MISHRA

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JUDGMENT 1. This judgment shall govern disposal of Cr.A.No. 29/2013 (Chandan Vs. State of M.P. ) and Cr.A.No. 647/2013 (State of M.P. Vs. Chandan & Ors.) as both these appeals arise out of the common judgment of conviction and order of sentence dated 30/11/2012 passed by Additional Sessions Judge, Pichchore,District Shivpuri in Sessions Trial No. 177/2005; whereby, accused Chandan has been convicted for commission of offence under Section 302 of IPC and sentenced to suffer Life Imprisonment with fine of Rs. 10,000/- and in default of payment of fine to further undergo one year RI; whereas, other accused persons viz. Roopsingh, Pramod and Bablu have been acquitted from all the charges. 2. Cr.A.No. 29/2013 has been filed by accused Chandan challenging the impugned judgment of conviction and order of sentence; whereas, Cr.A.No. 647/2013 has been preferred on behalf of State challenging the impugned judgment on the quantum of punishment awarded to the accused-Chandan and order of acquittal recorded in favour of accused-Roopsingh, Pramod and Bablu. 3. Prosecution case in short is that on 23/4/2009 at about 10.30 pm. Complainant Ratibai W/o Dayaram Lodhi, aged 50 years alongwith her daughters Sheela and Krishna informed the Police Station Pichchore that incident happened at 9.30 pm, wherein a marriage in her village Rampura was going on; where, she has gone with her son Lokesh and two daughters. A dispute of land existed between her and accused persons. In marriage ceremony, accused personscame where Chandan take out country made pistol (Katta) from his waist and fired at Lokesh, which hit the stomach of Lokesh. Second fire was made by Roopsingh which also hit the stomach of Lokesh. Pramod and Bablu also made fires from their Katta. She cried, then Kailash Lodhi, his son and her daughters came to the spot on which accused fled from the spot. They took Lokesh to Hospital where he died. 4. On lodging of the First Information Report (Ex. P/1), criminal law triggered and set into motion. Case was registered at crime No. 158/2009 for offence under Section 302/34 of IPC against the accused persons. After the investigation was over, charge sheet submitted in the committal Court, which on its turn committed the case to the Sessions Court where the accused were tried. P/1), criminal law triggered and set into motion. Case was registered at crime No. 158/2009 for offence under Section 302/34 of IPC against the accused persons. After the investigation was over, charge sheet submitted in the committal Court, which on its turn committed the case to the Sessions Court where the accused were tried. Learned Trial Judge on the basis of allegations made in the charge sheet framed charge under Section 302/34 of IPC, which the accused denied and requested for the trial. 5. In order to prove the charges, prosecution examined as many as thirteen witnesses and placed Ex.P/1 to P/24 as documents on record. 6. The defence of accused before the trial Court was of false implication and the same defence they put forth in their statement recorded under Section 313 of Cr.P.C. and in support of their defence they also examined as many as five witnesses and placed on record documents Ex. D/1 to D/14. 7. Learned Trial Judge on the basis of evidence placed on record came to hold that accused-Chandan is guilty of offence under Section 302 of IPC and sentenced him as referred hereinabove; whereas, acquitted other accused persons namely Roopsingh, Pramod and Bablu from all the charges. 8. Learned counsel for the accused submits there is no ample evidence on record to prove the case beyond reasonable doubt. There is a delay in taking statement of alleged eye witness Ratibai (PW/1) as incident is dated 23/4/2009; whereas, her statement was taken on 22/6/2009 and therefore, her statement is suspicious and cannot be considered for conviction of accused-Chandan. Further, if the statements of PW/1-Ratibai and PW/11-Smt. Rajabai are read in juxtaposition then there are ample contradictions and whole prosecution story appears to be concocted. Further PW/13- Pradeep Rajouriya (Investigating Officer) belies the story put-forth by prosecution and witnesses appeared on behalf of prosecution. PW/3-Vishwnath did not support the story of prosecution and therefore, declared hostile. 9. On the other hand, learned counsel for the State argued in support of impugned judgment. It is his submission that trial Court erred in not convicting the accused-Chandan for offence under Section 302/34 of IPC and Section 25 and 27 of the Arms Act as country made pistol was seized from his possession. Further trial court erred in not convicting the other accused persons viz. It is his submission that trial Court erred in not convicting the accused-Chandan for offence under Section 302/34 of IPC and Section 25 and 27 of the Arms Act as country made pistol was seized from his possession. Further trial court erred in not convicting the other accused persons viz. Roopsingh, Pramod and Bablu for offence under Section 302/34 of IPC as there is ample evidence came in statement of prosecution witness to convict them and therefore, trial Court erred in acquitting them. 10. Heard counsel for the parties at length and perused the record. 11. The case in hand is of Section 302 of IPC and two criminal appeals are being filed. One is by the appellant/accused Chandan, who has been convicted for offence under Section 302 of IPC by the trial Court and another appeal is by the State of Madhya Pradesh against the appellant Chandan as well as other co- accused; whereby, accused-Chandan has been convicted for offence under Section 302 of IPC and other accused persons acquitted from the charge of the offence under Section 302/34 of IPC. 12. So far as nature of death is concerned, prosecution led evidence of Dr. S.K.Sande (PW/8), who gave the medical opinion about the deceased and given the opinion that because of gun shot injury, deceased-Lokesh Lodhi succumbed. Ex. P/17 was the autopsy report in which cause of death has been referred as death due to cardio-respiratory failure resulted due to shock and severe haemorrhage from injury to vital organ, therefore, death was homicidal in nature. 13. So far as role of accused-Chandan is concerned, FIR vide Ex. P/1 has been lodged by complainant Rati Bai (PW/1), who is mother of deceased Lokesh. She has referred the incident and presence of accused-Chandan and other co-accused. It is worthwhile to mention the fact that complainant Ratibai happened to be the mistress of father of accused-Chandan (and other co- accused), who all are real brothers and therefore, they were not having cordial relationship with deceased. 14. As per the contents of FIR, it appears that all four accused (including Chandan)visited the spot where marriage ceremony was going on and accused-Chandan took out country made pistol of . 315 caliber and fired over deceased -Lokesh, who sustained injury over his stomach and succumbed when he was taken to the hospital. 15. 14. As per the contents of FIR, it appears that all four accused (including Chandan)visited the spot where marriage ceremony was going on and accused-Chandan took out country made pistol of . 315 caliber and fired over deceased -Lokesh, who sustained injury over his stomach and succumbed when he was taken to the hospital. 15. Ratibai (PW/1) was eye-witness and she made specific statement in her examination-in-chief about the incident. She narrated the story and the fact of present appellant wielding Katta and fire. Although if the said statement is seen with FIR then no material contradictions exist because she made the statement about her presence in FIR as well as in her statement. In cross- examination, no material contradiction came which could have persuaded this Court to consider the conspiracy theory of false implication. At this juncture, it is further worthwhile to mention that accused -Chandan himself appeared in witness box as DW/1 and he tried to establish the theory of alibi because according to him, he went to some other village for securing the marriage of his son Sunil Lodhi at village Gorikalan, at the place of Jagatsingh Lodhi; where one Sitaram Lodhi informed him about the incident next day. Interestingly, he neither caused appearance of his, would be in-law or Sitaram Lodhi to establish plea of alibi. They were not examined, therefore, in absence of any trustworthy witness to establish his plea of alibi this plea could not have been given credence and trial Court rightly rejected so. 16. Another,Eye witness was Smt. Sheela Lodhi (PW/2). She also narrated the prosecution story in almost same fashion and added one dimension by saying that they had land related dispute and therefore, they murdered her brother Lokesh. Minor contradictions or variations vis-a-vis her police statement are of not much material bearing. No glaring contradiction or omission surfaced in her statement. 17. Although, Vishwanath Lodhi (PW/3) did not support the story of prosecution and declared hostile but other eye-witnesses stood firm. Krishna Lodhi (PW/4) was another eye-witness and she also narrated the story in almost identical factual input. Kailash (PW/5), another eye-witness, also narrated the story in same manner. All eye-witnesses have narrated the story in similar fashion but they are family members. 18. Krishna Lodhi (PW/4) was another eye-witness and she also narrated the story in almost identical factual input. Kailash (PW/5), another eye-witness, also narrated the story in same manner. All eye-witnesses have narrated the story in similar fashion but they are family members. 18. One independent witness Smt. Rajabeti (PW/11) was also examined by prosecution and she referred the role of accused Chandan in making fire and giving gunshot injury to deceasedLokesh. But she denied presence of other co-accused persons on spot. Therefore, if the testimony of this witness is seen in juxtaposition to other witnesses who are family members, then it is established that Chandan fired over deceased. 19. Other eye witnesses, if are seen in juxtaposition to the evidence of Smt. Rajabeti (PW/11) then one thing appear in equal terms is role of accused- Chandan, although other eye-witnesses who were family members of deceased referred the role of other co-accused persons also, who are brothers of main accused Chandan but possibility cannot be ruled out that their names were included just to implicate them alongwith main accused Chandan. Omission of Smt. Rajabeti (PW/11) regarding presence of other co-accused cannot absolve the main accused Chandan from his liability because of the fact that witnesses uttered in same voice about the role of accused-Chandan. 20. Beside that Ballistic and other Scientific Evidence collected during investigation, also establish the role of accused Chandan. 21. Katta was seized from the possession of Chandan, vide Ex. P/12 and said Katta was possessing .315 bore/caliber barrel and could fire the .315 caliber cartridge and more importantly, it was in running condition. Ex. P/24 is the ballistic report submitted by State Forensic Science Laboratory, Sagar and reproduction of said report would further establish the connectivity ensured by the prosecution. Same is reproduced hereinbelow:- Perusal of report if seen in juxtaposition to medical opinion and evidence of Dr. Sande (PW/8) and evidence of Gulabdas (PW/6), who seized the Potli in which shirt and vest of deceased were kept vide Ex. Same is reproduced hereinbelow:- Perusal of report if seen in juxtaposition to medical opinion and evidence of Dr. Sande (PW/8) and evidence of Gulabdas (PW/6), who seized the Potli in which shirt and vest of deceased were kept vide Ex. P/16, Kallu Sweeper (PW/7) and Gopal (PW/9) and more particularly Badri (PW/10), who was seizure witness of Katta, then it would be clear that gunshot injury was received by deceased and said bullet was shot by accused -Chandan wielding Katta, which was seized by prosecution from his possession and shirt and vest of deceased carried blackening as well as hole and therefore, it is established that fire was shot from close quarter and from a Katta having .315 bore barrel. Because of gunshot injury blackening came and shirt of deceased sustained a hole. Forensic Science Laboratory report (Ex. P/24) makes things further lucent when it refers the fact that Katta was still in operation and spent bullet was also a .315 cartridge. Therefore, that bullet had been fired from Katta seized from the possession of accused -Chandan. Beside that, shirt and sando vest were having lead, copper and nitrite which indicates that they faced entry of cartridge. Holes were also found over these clothes, therefore, investigation successfully established the act of accused-Chandan with seizure and ballistic report and prosecution successfully led the witnesses for establishing the guilt of accused-Chandan. It is true that prosecution witnesses have tried to refer the role of other co-accused also but all this act, is the act cannot lost sight of. Trial Court rightly acquitted them and convicted the accused -Chandan. Independent witness Smt. Rajbeti (PW/11) was rightly given credence and even the independent witness referred the role of accused-Chandan. So far as allegation of counsel for accused-Chandan about the delay in taking statement of witnesses is concerned, same has been explained in the statement of Investigating Officer-PW/11-Pradeep Rajauriya, when he says that some witnesses were not available at that point of time, therefore, some time consumed for their statement. Here the motive and mens rea, both were apparent. Deceased and assailants were step brothers because mother of deceased is wife or mistress of father of accused persons and therefore, enmity was the reality and due to some dispute existing between parties, this offence has been committed. Reference of dispute also came in the statement of prosecution witnesses specifically in statement of PW/2-Sheela Lodhi. 22. Deceased and assailants were step brothers because mother of deceased is wife or mistress of father of accused persons and therefore, enmity was the reality and due to some dispute existing between parties, this offence has been committed. Reference of dispute also came in the statement of prosecution witnesses specifically in statement of PW/2-Sheela Lodhi. 22. When such overwhelming evidence is available, minor discrepancies and variations and attempt of prosecution to over implicate other accused cannot be the basis to acquit the accused-Chandan. 23. So far as Criminal Appeal No. 647/2013 (State of M.P. Vs. Chandan & Ors.) is concerned, same has been preferred by the State against the judgment passed by the trial Court whereby, accused Chandan has been convicted for commission of offence only under Section 302 of IPC and therefore, through this appeal State wants the conviction of accused-Chandan for offence under Section 302/34 of IPC and Section 25 (1) (a-b) and 27 of Arms Act. Similarly, through this appeal State wants other co-accused Roopsingh to be convicted under Section 302 and alternatively under Section 302/34 of IPC and other co-accused Pramod and Bablu to be convicted under Section 302/34 of IPC. Since trial Court acquitted other-accused (other than Chandan) for offence under Section 302 or 302/34 of IPC, therefore, this appeal has been preferred alongwith the prayer for conviction of Chandan for offence under Section 302/34 of IPC and provisions of Arms act. 24. From the evidence of the parties, it appears that sufficient contradiction exists so far as other co-accused are concerned. 25. For instance FIR (Ex. P/1) by complainant indicates that accused-Chandan fired gunshot over Lokesh and Roopsingh also fired from his Katta over Lokesh on which deceased Lokesh sustained injury over his stomach. Dr. S.K.Sande (PW/8) has opined in his autopsy report (Ex. P/17) as under:- Even otherwise, perusal of autopsy report (Ex. P/17) reveals that there was only one entry wound over the person of deceased and only one cartridge was found in his body. Therefore, from the medical evidence contents of FIR belied, which says two gunshot injuries was sustained by deceased. Even otherwise, complainant Ratibai (PW/1) in her examination-in-chief referred the fact that Chandan fired over Lokesh and she omits the role of Roopsingh so far as inflicting gunshot injury to Lokesh. Same is with other eye witnesses. Therefore, from the medical evidence contents of FIR belied, which says two gunshot injuries was sustained by deceased. Even otherwise, complainant Ratibai (PW/1) in her examination-in-chief referred the fact that Chandan fired over Lokesh and she omits the role of Roopsingh so far as inflicting gunshot injury to Lokesh. Same is with other eye witnesses. No eye witness in his/her statement referred the fact that Roopsingh fired aiming at deceased. These witnesses say that other accused made fire in air. This Court does not intend to repeat the evidence of each and every witness but wants to assert the fact that no witness has made any statement regarding infliction of gunshot injury by Roopsingh to Lokesh through his Katta, although these witnesses say that other co-accused fired but said fire was not aimed at Lokesh. Trial Corut after considering the medical evidence and evidence of other witnesses rightly came to the conclusion about their innocence. 26. Thus, in the cumulative analysis of this Court, both the appeals fails and are hereby dismissed. Accused-Chandan is in jail, therefore, he is directed to undergo his remaining jail sentence. As regards other accused- Roopsingh, Pramod and Bablu are concerned, since appeal filed by State is dismissed and they are already on bail, their bail bonds stands discharged. Appeals (Cr.A.No. 29/2013 & 647/2013) stand dismissed. Concerned Courts and Authorities be informed accordingly.