Madhya Pradesh High Court
Ramchitra & Anr. vs State Of M.P. on 11 May, 2017
Author: N.K. Gupta
Bench: N.K. Gupta
1 Cra.563.2004
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
HON'BLE SHRI JUSTICE N.K. GUPTA
CRIMINAL APPEAL NO.563 OF 2004
Ramchitra and another
Vs.
The State of Madhya Pradesh
Shri Arun Pateriya, counsel for the appellants.
Shri Ajmer Singh Yadav, Panel Lawyer, for the
respondent/State.
JUDGMENT
(11/05/2017) The appellants have preferred the present appeal against the judgment dated 13.08.2004 passed by the Sessions Judge, Morena (M.P.) in Sessions Trial No.130/2002 whereby each of them has been convicted of offence under Section 307/34 of IPC and sentenced to undergo seven years' rigorous imprisonment with a fine of Rs.2,500/-.
(2) Prosecution's case, in short, is that on 25.01.2002, complainant Ramautar (PW-4) lodged the FIR Ex.P-8 at Police Station Civil Lines, Morena (M.P.) that on the same very day at about 01:30 pm, he was coming back to his village Rampur. One Ramlakhan (PW-5) was accompanying him as a pillion rider. Near the turn of village Visangpur, appellants and other culprits came out 2 Cra.563.2004 of the crop of mustard. Each of them had a firearm in the hand. Initially, appellant Banwari fired with a gun causing injuries on the left shoulder and back of the complainant Ramautar (PW-4). Thereafter, second fire was made by appellant Ramchitra causing injuries on left arm of the complainant Ramautar (PW-4). Since Ramautar (PW-4) was driving the motorcycle, he fell down on the ground on account of sustaining the injuries. Thereafter, Siyaram fired with a gun causing injuries to him on right leg. On his screams, witnesses, namely, Rambharosi (PW-6) and Gangaram (PW-8) rushed to the spot and thereafter, the culprits ran away from the spot. After lodging the FIR, complainant Ramautar (PW-4) was sent to the hospital for his medico legal examination. Dr. A.K. Gupta (PW-2) examined the complainant Ramautar (PW-4). He found as many as three injuries of the firearm and he was referred for his radiological examination. Dr. Yogendra Singh (PW-1) examined the complainant Ramautar (PW-4) radiologically and gave his report Ex.-P-1. He found the right fibula bone of the complainant Ramautar (PW-4) to be fractured from its tip by one side. Various radio opaque shadows were found on his back and left hand. Complainant Ramautar (PW-4) was admitted in the hospital for treatment and removal of pellets. (3) Blood stained clothes and pellets removed from the body of complainant Ramautar (PW-4) were sent to the concerned SHO and the same were recovered by head constable Vijay Singh (PW-3) and a seizure memo Ex.P-7 was prepared. The investigation was done by sub- inspector Mr. N.D. Verma (PW-7). He prepared a spot map Ex.P-4. Thereafter, he arrested various accused 3 Cra.563.2004 persons. On interrogation, a licensee gun of 12 bore was recovered from the appellant Banwari and a seizure memo Ex.P-13 was prepared. For recovery of guns from other accused persons, a search was made to their houses but nothing could be found.
(4) After due investigation, the charge-sheet was filed before the JMFC, Morena who committed the case to the court of session.
(5) The appellants abjured their guilt. They took a plea that they were falsely implicated in the matter. One Lajjaram (DW-1) was examined to show the enmity between the parties.
(6) The trial court after considering the evidence adduced by the parties acquitted the remaining accused persons but convicted and sentenced the appellants as mentioned above.
(7) Heard the learned counsel for the parties at length. (8) In the present matter, Ramautar (PW-4), Ramlakhan (PW-5), Rambharosi (PW-6) and Gangaram (PW-8) were examined as eyewitnesses, however Rambharosi (PW-6) and Gangaram (PW-8) have accepted that before they could arrive the spot the incident was over and they saw the culprits running from the spot having firearms. They identified the appellants Banwari and Ramchitra. On the other hand, eyewitnesses Ramautar (PW-4) and Ramlakhan (PW-5) have stated that initially firing was done by Banwari on the back of the complainant Ramautar (PW-4) and another fire was done by Ramchitra causing injuries on his back of left arm. They also alleged against accused Siyaram and Bhimsen that they had also fired with the guns. In this connection if the medical evidence as given by Dr. A.K. Gupta (PW-2) 4 Cra.563.2004 is considered then he proved the MLC Ex.P-6 in which he found the following injuries sustained by the injured/complainant Ramautar:
1. Gunshot (Entry wound) pellet wound of size 3 / 4 x 3 / 4 cms x deep to issue on post aspect of left arm, greenish black ring was present around the wound. Bleeding present;
2. Multiple gunshot entry pellet wounds eight in number on the left side of the back in area of 12" with various size of 1 / 4 x 1 / 4 cms to 3 / 4 x 3 / 4 cms redness and greenish black ring present with deep to the tissue, some wounds are only skin deep;
3. Multiple red contusions clotted size 1x1 mm just above the right knee.
According to Dr. A.K. Gupta, one single injury was found on the left arm whereas a few pellets were found on the back of injured Ramautar (PW-4). Dr. Yogendra Singh (PW-1) examined the injured Ramautar (PW-4) radiologically and gave his report Ex.P-1. He found a fracture of right fibula and some radio opaque shadows on his back. It would be apparent from the allegations levelled by Ramautar (PW-4) and Ramlakhan (PW-5) that none of the appellants fired with gun causing injury on the right leg. Such injury could be caused due to fall from the motorcycle and therefore it cannot be said that the appellants caused such fracture which was found to the complainant injured Ramautar (PW-4). However, medical evidence is positive and it is found that the 5 Cra.563.2004 complainant/injured Ramautar (PW-4) sustained injuries of pellets on his back as well as back of his left arm. (9) It would be clear from the evidence given by sub- inspector Mr. N.D. Verma (PW-7) that on search no firearm could be found at the house of appellant Ramchitra. When fire was done by appellant Banwari by means of a 12 bore gun then at the time of incident when the complainant was driving the motorcycle it was possible that he would have sustained firearm injuries on the back of his left hand by the same flow of pellets discharged from the gun of the appellant Banwari. If appellant Ramchitra had fired with a gun separately then it was not possible that the complainant Ramautar (PW-
4) would have sustained a single injury of pellet on the back of his left arm. Looking to the size of entry wounds in Injury No.2 some of the wounds were found of size 3/4 x 3/4 cms and the injury found on the back of left arm was of the same size. By firing of 12 bore gun or katta of 12 bore, pellets would have been discharged and it is not possible that by single firing the complainant/injured Ramautar (PW-4) would have sustained injury of a single pellet on account of such firing. Hence, a doubt is created that the injury caused on the back of right arm of the complainant Ramautar (PW-4) was caused due to fire done by Banwari. If the fire was done from the left side of the complainant Ramautar then the pellet would have also struck on the back of left hand when the other pellets had struck on the back of complainant/injured Ramautar (PW-4). Since no gun could be recovered from appellant Ramchitra then it is possible that due to enmity complainant Ramautar (PW-4) would have tried to implicate so many persons. It would be apparent that 6 Cra.563.2004 when Dr. Gupta (PW-2) did not find any firearm injury on the right knee of the complainant and therefore accused Siyaram was acquitted by the trial court. Similarly, when complainant Ramautar (PW-4) implicated as many as four persons due to enmity, possibility cannot be ruled out that he would have falsely implicated Ramchitra in the case and all the gunshot injuries sustained by the complainant would have been caused by Banwari only. The trial court has committed an error in convicting the appellant Ramchitra for the aforesaid offences. (10) Since the complainant had falsely implicated the various accused persons in the case and he had enmity with the appellants then it is possible that Ramlakhan (PW-5) who was the pillion rider on the motorcycle and travelling along with the complainant Ramautar (PW-4) and the remaining witnesses i.e Rambharosi (PW-6) and Gangaram (PW-8) who were already known to the complainant and it is possible that complainant/injured Ramautar (PW-4) took the advantage of his injuries to implicate the four persons. Under these circumstances where injury found on back of left hand could be caused by firing done by Banwari then a doubt is created that appellant Ramchitra did not fire and if he did not fire at the time of incident then by mere presence his common intention cannot be presumed with the co-accused Banwari.
(11) The evidence of Ramautar (PW-4) and Ramlakhan (PW-5) is duly corroborated by Dr. A.K. Gupta (PW-2) who found pellet injuries on the back of victim/complainant Ramautar (PW-4) and Dr. Yogendra Singh (PW-1) found radio opaque shadows on the back of the complainant. Under such circumstances, in relation 7 Cra.563.2004 to the appellant Banwari the evidence given by Ramautar (PW-4), Ramlakhan (PW-5), Rambharosi (PW-
6) and Gangaram (PW-8) is acceptable and one gun was also recovered from appellant Banwari by sub-inspector Mr. N.D. Verma (PW-7). It is true that gun was not sent for its ballistic examination, however, recovery of gun supports the evidence of prosecution. There is no material contradiction between the evidence of Ramautar (PW-4) and Ramlakhan (PW-5) against appellant Banwari. It is true that they have stated against accused Siyaram and Bheemsen without any reason but only in that respect the entire evidence of Ramautar (PW-4) and Ramlakhan (PW-5) cannot be discarded. In this connection, the judgment rendered by Hon'ble the Apex Court in the case of "Ugra Ahir Vs. State of Bihar" [AIR 1965 SC 277] may be referred in which it is held that it is the duty of the court to pick the grains of truth from the chasm of falsehood. Hence if the witnesses have told falsely against the other accused persons then entire evidence of Ramautar (PW-4) and Ramlakhan (PW-5) cannot be discarded. Under these circumstances, it is proved that Banwari fired with a gun causing injuries to the complainant/injured Ramautar (PW-4) on his back and back of left arm, however, it would be apparent from the evidence that appellant Banwari did not repeat the fire. He fired only once with 12 bore gun by which pellets were discharged. Neither any bony injury was found to have been sustained by Ramautar (PW-4) nor was any fatal injury caused to him due to such firing.
(12) The learned counsel for the appellants submits that the case of appellant Banwari shall fall within the 8 Cra.563.2004 purview of Section 324 of IPC instead of 307 of IPC. If he was interested in killing the complainant/injured Ramautar (PW-4) then he would have repeated the fire or caused the fatal injury to the complainant Ramautar (PW-4). Under these circumstances, neither the complainant had sustained any fatal injury nor was the appellant Banwari so interested in killing the complainant Ramautar (PW-4), hence, no ingredients of Section 300 of IPC are attracted. In this connection, learned counsel for the appellants has relied upon the judgments passed by the Hon'ble Apex Court in the cases of "Kundan Singh Vs. State of Punjab" [AIR 1982 SC 62] and "Merambhai Punjabhai Khachar and others Vs. State of Gujarat" [AIR 1996 SC 3236] in which in similar circumstances it was held that only offence under Section 324 of IPC was constituted. Under these circumstances, the trial court has committed an error in convicting the appellant Banwari for offence under Section 307 of IPC, however, he fired with a gun causing simple injuries to the complainant Ramautar (PW-4) without any sudden or grave provocation or any other reason, therefore, in the light of the provisions contained under Section 39 of IPC his act should be considered as voluntary act and he is liable for offence under Section 324 of IPC.
(13) So far as the sentence is concerned, appellant Banwari has remained in custody from 27.02.2002 to 25.07.2002 during trial and thereafter from pronouncement of judgment by the trial court i.e. on 13.08.2004 he remained in custody during pendency of appeal up to 03.12.2004. Under these circumstances, appellant Banwari has remained in custody for more 9 Cra.563.2004 than eight months and that would be the sufficient sentence for commission of offence under Section 324 of IPC.
(14) On the basis of the aforesaid discussion, the appeal filed by appellant Banwari may be partly allowed whereas the appeal preferred by appellant Ramchitra may be allowed in toto. Accordingly, the appeal filed by appellant Ramchitra is hereby allowed. His conviction and sentence for the offence under Section 307/34 of IPC is hereby set aside. He is acquitted from the said charge. He would be entitled to get the fine amount back if he has deposited the same before the trial court. The appeal filed by appellant Banwari stands partly allowed. His conviction and sentence for the offence under Section 307/34 of IPC is hereby set aside but under the same head of the charge he is convicted for offence under Section 324 of IPC and sentenced to the period of jail sentence for which he has remained in the custody during pendency of trial and appeal. However, the fine of Rs.2,500/- is imposed upon him. Since he has also deposited the fine amount before the trial court, there is no need to make provision for default sentence. However, it is directed that the victim Ramautar (PW-4) shall get the compensation of Rs.2,500/- only. (15) The appellants are on bail. Their presence is no more required before this Court, hence, their bail bonds shall stand discharged.
(16) A copy of this judgment be sent to the court below along with its record for information and necessary compliance.
(N.K. Gupta) Judge (11/05/2017)