Madhya Pradesh High Court
Sonu @ Shivpratap Singh Bhadauriya vs The State Of Madhya Pradesh Thr. on 28 February, 2018
THE HIGH COURT OF MADHYA PRADESH BENCH GWALIOR
(Single Bench - Rajendra Mahajan J.)
CRIMINAL APPEAL No.898/2015
Sonu @ Shivpratap Singh S/o Ramsewak
Singh Bhadoriya, aged about 34 years,
occupation government employee, R/o
village Chitawali under Police Station
Surpura district Bhind (MP).
Appellant
Versus
State of M.P. through Police Station
Surpura district Bhind (M.P.).
Respondent
For appellant :- Shri D.R. Sharma assisted by Shri
Vikrant Sharma, learned counsel.
For respondent :- Shri Dilip Singh Tomar, learned Public
/State. Prosecutor.
JUDGEMENT
(Pronounced on 28th day of February, 2018) The appellant-accused has filed this appeal under Section 374(2) of the Cr.P.C. being aggrieved by and dissatisfied with the impugned judgment and order dated 21.09.2015 passed by the First Additional Sessions Judge Bhind in Sessions Trial No.176/2007, whereby he has been 2 Cr.A. No.898/2015 convicted under Section 307 of the IPC and sentenced thereunder to suffer rigorous imprisonment (for short "RI") for a period of ten years with a fine of Rs.10,000/- (ten thousand) in default of which to further serve RI for a period of three months.
2. The prosecution case as emerged out before the trial Court is, in brief, given below:-
(2.1) On 29.04.2006 at about 10:45 pm injured complainant Dharmendra Singh (PW-2) made an oral FIR to the Assistant Sub-Inspector Moti Singh (PW-10) at Police Station Surpura district Bhind stating that he is a permanent resident of village Chitawali, and he is a farmer by occupation. He has an old enmity with his neighbours namely Runsingh, Shripal Singh, Jaipal Singh, who are the acquitted accused persons, and Sonu @ Shivpratap Singh, the appellant herein, over the use of way. They would prevent him from using the way which is on the flank of their houses. On 29.04.2006 at about 10:15 pm, they hurled filthy abuses at him. Whereupon, he asked them not to abuse him. Meanwhile, the 3 Cr.A. No.898/2015 appellant brought .12 bore single barrel licensee gun of his father Ramsewak, and he fired at him with an intention to kill. The pallets of shot caused injuries above his right eyebrow, on both thighs, waist and left knee.
Therefrom, blood started oozing out. Prempal Singh (PW-4), Suresh Singh (PW-5) and Priyanshu (PW-7) witnessed the incident. Prempal Singh brought him in his tractor to lodge the FIR. ASI Moti Singh reduced the oral FIR made by the complainant into writing being Ex.P-2, and he registered a case at Crime No.21/2006 against the aforestated acquitted accused persons and the appellant for the offences punishable under Sections 294, 307 and 34 IPC. Thereafter, he sent the complainant for medico-legal-examination to the District Hospital Bhind, where on 30.04.2006, Dr. Rakesh Upadhyay (PW-8) examined him and gave his MLC report Ex.P-
8. Radiologist Dr. R.C. Gupta (PW-6) took X- rays of his injuries as suggested by Dr. Rakesh Upadhyay. He gave his report Ex.P-6 4 Cr.A. No.898/2015 with X-ray plates Ex.P-7 to Ex.P-10.
(2.2) Moti Singh took is the Investigating Officer of the case. In the course of investigation, on 30.04.2006, he prepared a spot map Ex.P-5 at the instance of Prempal Singh and in the presence of Suresh Singh (PW-5) and Begbahadur Singh (not examined) he collected blood stained earth and simple earth from the place of occurrence vide seizure memo Ex.P-6. On 30.04.2006 itself, he recorded the case diary statements of the complainant and other persons. On 01.05.2006 and 09.05.2006 he arrested acquitted accused persons and the appellant. On 30.05.2006, he seized blood stained clothes of the complainant vide seizure memo Ex.P-3 in the presence of Prempal Singh and Raghunath Singh (not examined).
(2.3) Upon completion of the investigation, the police filed a charge-sheet against the acquitted accused persons and the appellant for their prosecution under Sections 294, 307 and 34 of the IPC in the Court of 5 Cr.A. No.898/2015 Jurisdictional Magistrate Bhind. Later, he committed the case to the Court of Sessions Judge Bhind, who in turn, made over the case to the Court of First Additional Sessions Judge Bhind for trial.
3. The trial Court framed charges against the appellant under Section 307 IPC and acquitted accused persons under Sections 307 read with 34 IPC. They denied the charges framed against them and prayed for trial. Thereupon, they put to trial. In the examination under Section 313 Cr.P.C., they denied all the incriminating evidence and circumstances appearing against them in the prosecution evidence and they took the defence that they were falsely implicated by the complainant. In the defence, they examined Ghuttan Singh (DW-1). The learned ASJ, having analyzed and appreciated the evidence on record in the impugned judgment, has found the appellant guilty for having caused gunshot injuries to the complainant, thereby convicting him under Section 307 IPC and sentencing him thereunder as noted in para 1 of this judgment. However, the learned ASJ acquitted the remaining accused persons of the charge under Sections 307 read 6 Cr.A. No.898/2015 with 34 IPC. The appellant has filed this appeal feeling aggrieved by the impugned judgment of conviction and order of sentence passed against him.
4. At the time of hearing of final arguments, on being asked by me, the learned Public Prosecutor made an open Court statement that the State has not filed an appeal against the order of acquittal passed in favour of the acquitted accused persons of the case. Thus, the order of acquittal passed by the learned ASJ in respect of the acquitted accused persons has attained the finality.
5. At the outset of hearing of the final arguments, the learned counsel for the appellant has fairly conceded that the learned ASJ has rightly decided that it was the appellant who had caused the gun-shot injuries to the complainant. However, he submitted that Dr. Rakesh Upadhyay (PW-8), who medico-legally examined the complainant, has deposed that the complainant received a total of 8 pallets injuries of skin deep on his both thighs, left knee, left foot, illac region and above the right eyebrow, and that he had also stated that all the injuries are simple in nature. He further submitted that as per the evidence of the complainant and eye-witnesses, the appellant had fired one gunshot. He further submitted 7 Cr.A. No.898/2015 that before the firing caused by the appellant, there was an oral altercation between the complainant and the accused party over the use of the way by the complainant. In the course of which, the appellant fired at the complainant. Thus, he caused the firearm injuries to the complainant on the spur of moment without any premeditation of killing him, and none of the injuries were on his vital parts. As such, the appellant had no intention to cause the death of the complainant. In the light of aforesaid evidence on record, the appellant has committed an offence punishable under Section 324 IPC. Thus, the learned ASJ has grossly erred in convicting the appellant in Section 307 IPC in place of 324 IPC. As to the sentence, the learned counsel for the appellant submitted that the appellant has been in jail for a period of 2 years, 3 months and 14 days including 32 days of the period of judicial custody as on 04.01.2018, the date of final arguments. He further submitted that as per the noting on a copy of the jail warrant of the appellant made by the learned ASJ, he had deposited the entire fine amount of Rs.10,000/- (ten thousand) on 21.09.2015, the date of impugned judgment. He further submitted that as per the record, the appellant has no criminal antecedents 8 Cr.A. No.898/2015 and that he is a government employee. In the light of the above facts, learned counsel for the appellant prayed that the appellant should be convicted under Section 324 IPC with the imposition of jail sentence of the period he had so far been in jail affirming the fine sentence as imposed vide the impugned judgment. In support of the submissions, the learned counsel for the appellant placed reliance upon the decisions rendered in the cases of Janved Vs. State of M.P., 1988 Part-II MPWN 177, Shiv Kumar Singh Vs. State of M.P., 2016 (2) MPLJ (Cri) 172 and Shyam Sharma Vs. State of M.P. and another, (2017) 9 SCC 362.
6. Per contra, the learned Public Prosecutor vehemently defended the conviction and sentence awarded to the appellant under Section 307 IPC.
7. I have carefully considered the submissions of the learned counsel for the parties made at the Bar and perused the impugned judgment and material on record.
8. Complainant Dharmendra Singh (PW-2) has deposed that by the side of the houses of the appellant and the acquitted accused persons, there is a way. The appellant and the acquitted accused persons would object to his using the way. On the night of the incident 9 Cr.A. No.898/2015 i.e. 29.04.2006 at about 10:00 to 10:25 pm acquitted accused persons and the appellant hurled filthy abuses at him over his using the way. Meanwhile, the appellant brought the .12 bore licensee gun of his father from his house and fired at him causing injuries on his right eyebrow, waist, thighs and feet. The incident was witnessed by Prempal Singh (PW-4), Suresh (PW-5) and Priyanshu (PW-7). He also proved FIR Ex.P-2, and he also stated that the police had sent him for medico-legal- examination. His aforesaid evidence is duly corroborated by the aforenamed eye-witnesses in their evidence. There is nothing in their cross-examination to discredit their evidence. Moreover, the learned counsel for the appellant had not challenged the veracity of their statements at the time of final arguments before this Court. In the light of the aforestated, I hold that the learned ASJ has rightly held that it was the appellant who fired at the complainant causing gunshot injuries.
9. Dr. Rakesh Upadhyay (PW-8) has deposed that on 30.04.2006, he medico legally examined complainant Dharmendra Singh at District Hospital Bhind and he noticed following injuries on his person:-
(i) A gunshot wound size ¼ cm x ¼ cm skin 10 Cr.A. No.898/2015 deep on the posterior upper part of right thigh.
(ii) A gunshot wound size ¼ cm x ¼ cm skin deep on the lower outer part of left thigh.
(iii) A gunshot wound size ¼ cm x ¼ cm skin deep on the upper outer part of left thigh.
(iv) A gunshot wound size ¼ cm x ¼ cm skin deep on the outer lower part of left foot.
(v) A gunshot wound size ¼ cm x ¼ cm skin
deep on the outer side of left foot.
(vi) A gunshot wound size ¼ cm x ¼ cm skin
deep just below the outer part of left knee.
(vii) A gunshot wound size ¼ cm x ¼ cm skin deep on the right illac region.
(viii) A gunshot wound size ¼ cm x ¼ cm skin deep over the right eyebrow.
This witness has also opined that all the injuries are simple in nature and that they were caused within six hours before the commencement of the medico-legal- examination of the complainant by him. He has also deposed that he advised X-rays of all the injuries sustained by the complainant. He has proved MLC report Ex.P-8 of the complainant given by him. In the course of cross-examination, the defence has asked only one 11 Cr.A. No.898/2015 question. In reply of which, he has stated that all the gunshot injuries were superficial and may be caused from the distance of more than 6 feet. In view of the aforesaid cross-examination, it is crystal clear that the defence has not impeached the evidence and opinion of this witness. Thus, I hold that the testimony of this witness is wholly reliable and inspiring.
10. Dr. S.C. Gupta (PW-6) has stated that on 30.04.2006 he took X-rays of all the injuries of the complainant as suggested by Dr. Rakesh Upadhyay. He had found three radio opaque shadows on the lower part of left thigh and upper part of left leg by means of X-rays. He also deposed that he gave his report Ex.P-6 along with X-ray plates Ex.P-7 to Ex.P-10. On being asked by the defence in his cross-examination, he has replied that the radio opaque shadows were superficial. I find that there is nothing in his cross-examination to discredit his evidence. Therefore, I place implicit reliance upon his evidence and opinion.
11. Placing reliance upon the evidence rendered by doctors Rakesh Upadhyay and S.C. Gupta and ocular proof on record, I hold that the learned ASJ has rightly recorded the findings that in the course of incident, the 12 Cr.A. No.898/2015 complainant sustained pallets injuries on his person, which were caused by the appellant.
12. As per the evidence of the complainant and the aforenamed eye-witnesses, the appellant fired at the complainant after an oral altercation between the complainant on one side and the appellant and the acquitted accused persons on the other over the use of way by the complainant. In the course of which, the appellant brought the licensee gun of his father from his house and fired only one shot at the complainant. The inference is that at the beginning of the altercation the appellant had no gun with him. As per the medical evidence, the pallets injuries sustained by the complainant are simple and superficial in nature, and they were on non-vital parts of his body. From the aforesaid, it is crystal clear that the appellant fired at the complainant on the spur of moment without any kind of premeditation to cause his death. In the light of the aforesaid evidence and the law laid down in the aforequoted rulings, I hold that the appellant committed an offence punishable under Section 324 IPC. As such, the learned ASJ has grossly erred in convicting the appellant under Section 307 IPC. Hence, the conviction 13 Cr.A. No.898/2015 of the appellant is altered from Section 307 to 324 IPC.
13. As to the sentence, the record reveals that the appellant remained in judicial custody for a period of 32 days and thereafter he remained on bail during the trial. There is no evidence on record that he misused the liberty of bail in the course of trial. The appellant has been continuously undergoing the jail sentence since 21.09.2015, the date of impugned judgment. As such, he has been in prison for 2 years, 5 months and 15 days as on the date of delivery of this judgment. The record also reveals that the appellant is a government employee, and he has neither previous conviction nor criminal antecedents. He has also deposited the entire fine amount of Rs.10,000/- (ten thousand) on the date of impugned judgment as per the noting on a copy of the jail warrant, which is available on record. In the light of the aforesaid facts, I am of the considered opinion that the ends of justice would be met if the appellant is sentenced under Section 324 IPC for the period he had already been in jail with fine of Rs.10,000/- (ten thousand). Since, the appellant had deposited the fine of Rs.10,000/- (ten thousand) under Section 307 IPC, the said fine amount is adjusted under Section 324 IPC.
14Cr.A. No.898/2015
14. On the basis of the foregoing discussions, the appeal filed by the appellant is hereby partly allowed. His conviction and sentences under Section 307 IPC are set aside and he is acquitted of the said charge. In place, he is convicted of the offence punishable under Section 324 IPC and is sentenced thereunder for the period of the jail sentence which he had already suffered and fine sentence of Rs.10,000/- (ten thousand), which he had already deposited. The fine amount shall be adjusted under Section 324 IPC.
15. The appellant is in jail. Therefore, the Office is directed to issue a supersession warrant without any delay so that he may be released as early as possible. It be mentioned on the warrant that he be released only when his detention is not required in any other case.
16. In the fact situation of the case, I deem it proper to order the Court concerned to pass on the entire fine amount of Rs.10,000/- (ten thousand) to complainant Dharmendra Singh S/o Rajendra Singh Bhadoriya resident of village Chitawali under Police Station Supura district Bhind by way of compensation as per the provisions of Section 357 Cr.P.C. The incumbent Additional Sessions Judge of the Court concerned or the 15 Cr.A. No.898/2015 successor Court, as the case may be, is directed to take steps without delay for handing over the said amount to the complainant subject to verification.
17. Accordingly, this appeal is finally disposed of.
(Rajendra Mahajan) Judge SS SATEESH KUMAR SEN 2018.03.07 16:14:28 +05'30'