Madhya Pradesh High Court
Mangal Singh Rajawat vs The State Of Madhya Pradesh on 9 March, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
MCRC No.10748/2022
Mangal Singh Rajawat vs. State of M.P.
Gwalior, Dated : 09/03/2022
Shri A.K. Mishra, Counsel for the applicant.
Shri C.P. Singh, Counsel for the respondent/State.
Case diary is available.
This seventh application under Section 439 of Cr.P.C. has been filed for grant of bail. The sixth application was dismissed as withdrawn by order dated 8.2.2022 passed in M.Cr.C.No.511/2022.
The applicant has been arrested on 10.11.2019 in connection with Crime No.106/2019 registered at Police Station Subhashpura, District Shivpuri for offence under Sections 302, 120-B, 34 of IPC and under Section 25/27 of the Arms Act.
Earlier the counsel for the applicant started arguments on merits of the case but when he was told that since previous bail applications have already been dismissed on merits, therefore, he should point out the changed circumstances, then it is submitted that the weapon which has been recovered from the possession of the applicant could not be connected with the offence because the FSL report shows non-use of recovered weapon.
So far as non-recovery of weapon of offence is concerned, it would not give any dent to the prosecution case.
The Supreme Court in the case of Gulab vs. State of Uttar Pradesh by order dated 9.12.2021 passed in Criminal Appeal 2 THE HIGH COURT OF MADHYA PRADESH MCRC No.10748/2022 Mangal Singh Rajawat vs. State of M.P. No.81/2021 has held as under:
"16. The evidence on the record has been carefully evaluated by the Sessions Judge as well as the High Court. There is no basis to discredit the presence of the three eye-witnesses and nothing has been elicited in the course of the cross-examination to doubt their presence. The non-examination of the daughter of the deceased who was allegedly unwell cannot be construed to be a circumstance that is fatal to the prosecution's case once the ocular evidence of PWs 1, 2 and 3 is consistent and credible. The nature of the injuries found to have been sustained by the deceased is consistent with the account furnished by the eyewitnesses. C.2 Failure to recover the weapon and examine a ballistic expert
17. The deceased had sustained a gun-shot injury with a point of entry and exit. The non-recovery of the weapon of offences would therefore not discredit the case of the prosecution which has relied on the eyewitness accounts of PWs 1, 2 and
3.In Sukhwant Singh v. State of Punjab, Dr A S Anand (as the learned Chief Justice then was) speaking for a two-judge Bench held:
"21. There is yet another infirmity in this case. We find that whereas an empty [sic] had been recovered by PW 6, ASI Raghubir Singh from the spot and a pistol along with some cartridges were seized from the possession of the appellant at the time of his arrest, yet the prosecution, for reasons best known to it, did not send the recovered empty [sic] and the seized pistol to the ballistic expert for examination and expert opinion. Comparison could have provided link evidence between the crime and the accused. This again is an omission on the part of the prosecution for which no explanation has been furnished either in the trial court or before us. It hardly needs to be emphasised that in cases where injuries are caused by firearms, the opinion of the ballistic expert is of a 3 THE HIGH COURT OF MADHYA PRADESH MCRC No.10748/2022 Mangal Singh Rajawat vs. State of M.P. considerable importance where both the firearm and the crime cartridge are recovered during the investigation to connect an accused with the crime. Failure to produce the expert opinion before the trial court in such cases affects the creditworthiness of the prosecution case to a great extent."
(emphasis supplied) The above extract which has been relied upon by the learned Counsel for the appellant emphasises that in a case where injury has been caused by a firearm, the opinion of the ballistic expert is of considerable importance where both the firearm and the crime cartridge had been recovered during the investigation. Failure to produce the expert opinion in such a case affects the creditworthiness of the prosecution case.
18. However, a three-judge Bench of this Court, in Gurucharan Singh v. State of Punjab, has analysed the precedents of this Court and held that examination of a ballistic expert is not an inflexible rule in every case involving use of a lethal weapon.
Therefore, we do not think that Mr Purushottam is right in contending as a general proposition that in every case where a firearm is alleged to have been used by an accused person, in addition to the direct evidence, prosecution must lead the evidence of a ballistic expert, however good the direct evidence may be and though on the record there may be no reason to doubt the said direct evidence."
(emphasis supplied)
19. Similarly, a two-judge Bench of this Court in State of Punjab v. Jugraj Singh had noticed that surrounding circumstances in the prosecution case are sufficient to prove a death caused by a lethal weapon, without a ballistic examination of the recovered weapon. The Court, speaking through Justice R P Sethi, had noted:
4THE HIGH COURT OF MADHYA PRADESH MCRC No.10748/2022 Mangal Singh Rajawat vs. State of M.P. "18. In the instant case the investigating officer has categorically stated that guns seized were not in a working condition and he, in his discretion, found that no purpose would be served by sending the same to the ballistic expert for his opinion. No further question was put to the investigating officer in cross-
examination to find out whether despite the guns being defective the fire pin was in order or not. In the presence of convincing evidence of two eyewitnesses and other attending circumstances we do not find that the non- examination of the expert in this case has, in any way, affected the creditworthiness of the version put forth by the eyewitnesses."
20. The present case is not one where despite the recovery of a firearm, or of the cartridge, the prosecution had failed to produce a report of the ballistic expert. Therefore, the failure to produce a report by a ballistic expert who can testify to the fatal injuries being caused by a particular weapon is not sufficient to impeach the credible evidence of the direct eye-witnesses."
The Supreme Court in the case of Rakesh and another vs. State of U.P. and another reported in (2021) 7 SCC 188 has held as under:-
"12. Now so far as the submission on behalf of the accused that as per the ballistic report the bullet found does not match with the fire arm/gun recovered and therefore the use of gun as alleged is doubtful and therefore benefit of doubt must be given to the accused is concerned, the aforesaid cannot be accepted. At the most, it can be said that the gun recovered by the police from the accused may not have been used for killing and therefore the recovery of the actual weapon used for killing can be ignored and it is to be treated as if there is no recovery at all ............."5
THE HIGH COURT OF MADHYA PRADESH MCRC No.10748/2022 Mangal Singh Rajawat vs. State of M.P. It is next contended by the counsel for the applicant that the evidence of Deepu @ Mahendra Sikarwar (PW-3) is in direct conflict with the evidence of Pratibhan @ Raja (PW-1), therefore, the benefit must go to the applicant.
The submission made by the counsel for the applicant cannot be appreciated in the light of the judgment passed by the Supreme Court in the case of Satish Jaggi vs. State of Chhattisgarh reported in (2007) 11 SCC 195, because this Court cannot consider and decide the reliability and credibility of a witness at the stage of bail.
No other argument is advanced by the counsel for the applicant.
As no change in circumstance could be pointed out by the counsel for the applicant, accordingly, the application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge (alok) ALOK KUMAR 2022.03.10 15:03:32 +05'30'