Madhya Pradesh High Court
Sappu Khemariya vs The State Of M.P, on 12 April, 2018
Author: Ashok Kumar Joshi
Bench: Ashok Kumar Joshi
-( 1 )- CRA No. 479/2005
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: HON.SHRI JUSTICE SANJAY YADAV
AND
HON. SHRI JUSTICE ASHOK KUMAR JOSHI
Criminal Appeal No.479/2005
Vipin Senthiya S/o Jagdish Prasad
.... Appellant
Vs.
State of Madhya Pradesh
Through - Police Station Barohi, Distt. Bhind.
.... Respondent
----------------------------------------------------------------------------------
Shri Dhirendra Singh, learned counsel for the
appellant.
Shri J.M.Sahney, learned Public Prosecutor for the
State.
----------------------------------------------------------------------------------
AND
Criminal Appeal No.508/2005
Sappu Khemariya S/o Uttam
.... Appellant
Vs.
Through - Police Station Barohi, Distt. Bhind.
.... Respondent
----------------------------------------------------------------------------------
Shri Dhirendra Singh, learned counsel for the
appellant.
Shri J.M.Sahney, learned Public Prosecutor for the
State.
----------------------------------------------------------------------------------
AND
Criminal Appeal No.510/2005
Ram Naresh S/o Bahadur Prasad
.... Appellant
Vs.
Through - Police Station Barohi, Distt. Bhind.
.... Respondent
-( 2 )- CRA No. 479/2005
----------------------------------------------------------------------------------
Shri Mukesh Sharma, learned counsel for the
appellant.
Shri J.M.Sahney, learned Public Prosecutor for the
State.
----------------------------------------------------------------------------------
AND
Criminal Appeal No.618/2005
Rajesh S/o Ramdhun
.... Appellant
Vs.
Through - Police Station Barohi, Distt. Bhind.
.... Respondent
----------------------------------------------------------------------------------
Shri Dhirendra Singh, learned counsel for the
appellant.
Shri J.M.Sahney, learned Public Prosecutor for the
State.
----------------------------------------------------------------------------------
JUDGMENT
(12/04/2018) Per Ashok Kumar Joshi,J.:
By this common judgment being passed in Criminal Appeal No.479/2005, other connected Criminal Appeals No. 508/2005, 510/2005 and 618/2005 are also being decided as these appeals have been filed against the same judgment dated 20th June, 2005, passed by Fifth Additional Sessions Judge, Bhind in Sessions Trial No. 159/2003.
2. Each appellant has filed his separate appeal under Section 374 of the CrPC assailing the judgment dated 20th June, 2005 passed by Fifth Additional Sessions Judge, Bhind, whereby each appellant of all these appeals has been convicted and sentenced as under:-
-( 3 )- CRA No. 479/2005Name Conviction Sentence Fine Default
under Stipulatio
Section n
Vipin 1 302/34 IPC Life Impri- 500/- 3 Months
Senthiya sonment RI
2 27(1) Arms 7 Years RI 100/- 1 Month
Act RI
Sappu 1 302 IPC Life Impri- 500/- 3 Months
sonment RI
2 25 (1-B) (a) Two Years 100/- 1 Month
Arms Act RI RI
3 27(1) Arms 7 Years RI 100/- 1 Month
Act RI
Ram 1 302/34 IPC Life Impri- 500/- 3 Months
Naresh sonment RI
2 25 (1-B) (a) Two Years 100/- 1 Month
Arms Act RI RI
3 27(1) Arms 7 Years RI 100/- 1 Month
Act RI
Rajesh 1 302/34 IPC Life Impri- 500/- 3 Months
sonment RI
2 25 (1-B) (a) Two Years 100/- 1 Month
Arms Act RI RI
It is also directed by the trial Court that all main jail sentences of each appellant are to run concurrently.
3. Undisputedly, complainant Kedarnath (PW-4) was having previous enmity with appellants as he filed a civil suit against Ramnaresh, in relation to which appeal before this Court was pending at the time of incident.
4. Prosecution's case in brief is that on the date of incident, i.e., 3rd April, 2003 at 16=15 hrs at Police Station Barohi, District Bhind, complainant Kedarnath, resident of village Ethar, lodged FIR (Ex.P/5) in relation to incident of same day occurred at 15=00 hrs to the effect that on the same day, in the noon at 3=00 pm, he was going with his grand children Rakesh (PW-9) and Vikas (PW-5) to his agricultural land of area 6 bighas, where crop was being cut. When complainant with his -( 4 )- CRA No. 479/2005 grand sons was passing through Rajendra's land, he saw that present appellants Vipin, Ramnaresh, Sappu and one unknown person came to complainant's land and each one were having countrymade pistols with them. All these four armed assailants shouted that complainant's son Santosh should not escape and he be killed. Thereafter complainant's son Santosh started running, who was chased by the above mentioned four persons. In adjacent Vidyaram's field these three assailants named in FIR and their unknown companion encircled Santosh. Above mentioned unknown companion of accused caught hold Santosh, thereafter firstly Vipin fired a shot from his countrymade pistol, which caused injury on left side of neck of Santosh; thereafter appellant Sappu fired a shot from his pistol and the projectile caused injury on left side of chest of Santosh. Thereafter Sappu cried that 'he is still alive, one bullet again be fired on him', then appellant Ramnaresh fired a shot from his pistol which caused injury on right side of back of Santosh. Till then complainant and other persons working in fields, namely, Jayysiram (PW-1), Munna Sai (PW-2) and others shouted and started running towards spot, thereafter above mentioned four assailants fled away towards village Muratpura. Complainant was having a litigation with Ramnaresh regarding taking of money as loan, hence his son Santosh was jointly murdered by them. FIR (Ex.P/5) was scribed by SHO R.D.Mishra (PW-17). In FIR it was clearly mentioned that fourth unknown companion of named three accused persons was not known to complainant but he could be identified by complainant after seeing him.
5. After recording FIR, R.D.Mishra (PW-17) reached on spot and saw the dead body of Santosh lying in the -( 5 )- CRA No. 479/2005 field of Vidyaram, which was adjacent to complainant's land and after issuing Safina Form (Ex.P/7) in presence of panch witness, prepared inquest memo (Ex.P/2). He also prepared spot map (Ex.P/6) and seized blood- stained soil and separate soil vide seizure memo (Ex.P/19). The dead body of Santosh was sent to District Hospital Bhind for post-mortem. Dr. S.C.Gupta (PW-13) conducted autopsy of dead body of Santosh on 4th April, 2003 and recorded post-mortem report (Ex.P/15). Appellant Ramnaresh was arrested on 10 th April, 2003 vide arrest memo (Ex.P/9) and a countrymade 12 bore pistol was seized from Ramnaresh in presence of panch witness vide seizure memo (Ex.P/8). Appellant Vipin was arrested on 14th April, 2003 in another Crime No. 23/2003 wherein a countrymade pistol of .315 bore was seized from Vipin vide seizure memo (Ex.P/23) and relating original seizure memo was filed in other criminal case. Vipin was formally arrested in the present case thereafter. On 22nd April, 2003 appellant Sappu was arrested vide arrest memo (Ex.P/11) and a countrymade pistol of .315 bore and two live cartridges were seized from Sappu vide seizure memo (Ex.P/12). Appellant Rajesh was also arrested on 22nd April, 2003 vide arrest memo (Ex.P/10) and a countrymade .315 bore pistol and two live cartridges were seized from appellant Rajesh vide seizure memo (Ex.P/13). During investigation in Test Identification Parade conducted by Naib Tahsildar Rajesh Mahor (PW-3) on 4th July, 2003 in Sub-Jail, Bhind, complainant Kedarnath rightly identified Rajesh, who was mixed up with four other persons and in this reference identification memo (Ex.P/4) was prepared by Naib Tahsildar Rajesh Mahor (PW-3). Clothes of deceased sealed by above mentioned doctor and other -( 6 )- CRA No. 479/2005 materials were sent to FSL Sagar with a letter of Superintendent of Police, Bhind. After completing other formalities of the investigation, charge sheet was filed against the above four appellants and Gajraj Singh and Karu @ Rakesh Khemariya. After committal of the arisen criminal case by relating Magistrate, Sessions Trial was transferred by Sessions Judge Bhind to above mentioned trial Court.
6. Trial Court framed charges against each of the four present appellants and co-accused persons Gajraj and Karu @ Rakesh. Before the trial Court, 18 prosecution witnesses were examined. It was the defence of the present appellants and other co-accused persons that they have been falsely implicated. Shiv Dayal Sharma (DW-1) was examined for appellant Ramnaresh, who deposed that Ramnaresh was brought by Bhind Police on 9th April, 2003 from his house situated at Bhind, where Ramnaresh was residing. The trial Court vide impugned judgment acquitted co-accused persons Gajraj Singh @ Jadugar and Karu @ Rakesh but convicted and sentenced each present appellant as aforesaid. Hence, each convicted appellant has filed separate appeal assailing his conviction and sentence.
7. Appearing counsel for different appellant vehemently contends that alleged independent eye- witness Jaysiram (PW-1) and Munna Sai (PW-2) have not supported the prosecution's case against present appellants and as complainant Kedarnath's relating agricultural land was given for agricultural work to above mentioned Jaysiramm on "Batai", hence there was no question of complainant Kedarnath and his grand sons to visit relating agricultural land at about 3=00 pm. It is further contended that on the date of incident -( 7 )- CRA No. 479/2005 Rakesh (PW-9) was in Delhi in relation to his labour work and on the date of incident complainant Kedarnath (PW-4) had gone to Bhind for receiving his pension and actually complainant and his grand sons are planted eye- witnesses. It is further argued that complainant and his both grand sons deposed that at the time of incident they did not try to save their close relative deceased Santosh, hence their presence is highly doubtful. It is also argued that according to eye-witnesses when Santosh was running to save himself then from front side appellant Rajesh caught hold him; thereafter other three appellants fired shots from their respective firearms. This sequence is prima facie impossible and unnatural. It was clear from the evidence of the complainant that he was having previous enmity with all the appellants hence the trial Court erred in believing eye-witness account given only by family members of the deceased. It is also argued that for getting sanction for prosecution of relating appellant in relation to offence punishable under the Arms Act, allegedly seized firearms were not sent to the relating District Magistrate, hence relating sanction is vitiated. It is argued that separate appeal filed on behalf of each appellant be allowed and each appellant be acquitted from the above mentioned offences.
8. Per Contra, appearing Public Prosecutor on behalf of the respondent/State supporting the impugned judgment contends that the trial Court has minutely appreciated and analysed the evidence available on record and did not commit any error in convicting each appellant and in the light of recent binding citation there is no necessity of sending firearms to District Magistrate for obtaining his prosecution sanction against relating -( 8 )- CRA No. 479/2005 accused. Hence, dismissal of the appeals is prayed.
9. It is clear from the total evidence of Dr. S.C.Gupta (PW-13) and his post-mortem report (Ex.P/15) that on 4 th April, 2003 at 6=40 am at the time of starting post- mortem of dead body of Santosh, aged about 30 years, he found following injuries:-
(i) An entry wound, size 2x2 cm placed on mid of sternum (mid of chest), beneath which sternum bone was broken and margins of entry wound were inverted and blood was oozing from the wound and bullet was stuck in the right lung after passing through heart;
(ii) An entry wound, size 3x2 cm placed on posterior side of left ear on neck region obliquely placed, wherein a bullet was stuck, which was taken out and sent to relating police station after sealing;
(iii) An entry wound, size 8x8 cm on right side of back at T-11 level above mid clavicular and mid auxillary line, with blackening;
10. Dr. Gupta (PW-13) deposed that on dissection of the dead body, right lung was found ruptured, wherefrom bullet was taken out and sealed and right antrum and ventricle of the heart were also ruptured and right thoracic cavity was filled with blood and all the three entry wounds were caused by firearm and were ante- mortem in nature and a pant, shirt, safi and a vest (Baniyan) found on dead body were taken out by him and sealed in a packet and later on sent to the relating police station through Constable.
11. Dr. S.C.Gupta (PW-13) opined that the above mentioned injury No.(i), beneath which heart and right lung were ruptured, was cause of death of deceased and he died within 24 hours from starting of his post- mortem and mode of death was homicidal. He clearly deposed in cross-examination that other two entry wounds were superficial. In cross-examination Dr. Gupta -( 9 )- CRA No. 479/2005 deposed that he could not opine that these different entry wounds could be caused by same firearm or by different firearms. Much emphasis has been given by learned counsel for the appellants on these facts, but doctor is not a ballistic expert and he has opined that third entry wound found on right side of back was having blackening and opined in cross-examination that it could be caused by any article containing gunpowder or crackers used on Dipawali. It is clear from the FSL report (Ex.P/24) that two recovered bullets by the above mentioned doctor during post-mortem could only be fired from a firearm of .315 bore, because third country made pistol allegedly seized from Ramnaresh was a pistol of .12 bore by which cartridge containing pellets could be fired. According to the ballistic expert's above mentioned report, all examined countrymade pistols were in working condition and could cause fatal injury to anyone.
12. According to prosecution's case, complainant Kedarnath (PW-4), his grand sons Vikas (PW-5) and Rakesh (PW-9) and Jaysiram (PW-1) and Munna (PW-2) were eye-witnesses. As stated earlier, Jaysiram (PW-1) and Munna (PW-2) did not depose anything against any appellant, hence they were declared hostile and suggestions of the nature of cross-examination were given to them by prosecution. Jaysiram (PW-1) deposed that about one year ago, Santosh was murdered in agricultural land but at that time he was busy in harvesting the wheat crop, hence he did not see anything, however, he admitted that complainant Kedarnath's agricultural land was taken by him on "batai". He also admitted his signatures on inquest memo (Ex.P/2) and deposed that he had seen the dead -( 10 )- CRA No. 479/2005 body of Santosh lying in the field, but he did not know how he was murdered but he deposed in cross- examination that with him, his wife and brother and 3-4 women were also harvesting the crop.
13. Munna (PW-2) deposed that on the date of incident at about 1=30 pm when Santosh died, then he was harvesting wheat crop at four fields away from spot, hence he did not see anything but he heard the sound of firing by firearms, however even after hearing the sound of fires he did not reach the scene of occurrence as he was collecting crop in Shrikrishna's agricultural land. Jaysiram (PW-1) and Munna (PW-2) deposed in cross- examination that they have not seen any family member of Santosh on the scene of occurrence at the time of incident. Much emphasis has been given by the counsel for the appellants on this fact but it is clear that both of these witnesses were suppressing truth as it is clear from the spot map (Ex.P/6) that after the incident Santosh's dead body was lying in Vidhyaram's field, which is just adjacent to the complainant's land where, according to evidence of Jaysiram (PW-1), he was cutting wheat crop.
14. Complainant Kedarnath (PW-4) and his grand sons Vikas (PW-5) and Rakesh (PW-9) deposed that on the date of incident at about 3=00 pm they were going together on foot to their field as crop was being cut there and when they were about 200 yards away from the complainant's field then they saw three present appellants Vipin, Sappu and Ramnaresh and fourth unknown person (later on identified as Rajesh) at complainant's field. Complainant deposed that he saw that his son Santosh was encircled by these four appellants and firstly Vipin fired from his pistol which -( 11 )- CRA No. 479/2005 caused injury on left side of neck of Santosh, thereafter appellant Sappu fired from his pistol which caused injury on chest of Santosh and lastly appellant Ramnaresh fired from his 12 bore pistol, which caused injury on back of his son. Complainant also deposed that before firing his son was caught hold by appellant Rajesh and after firing they ran towards their field, then all the appellants fled away towards village Muratpura. Complainant clearly deposed that on his field Jaysiram Jatav and Munna Sai were present, though Munna was working in Sarpanch's field.
15. Child witness Vikas (PW-5) and Rakesh (PW-9) have substantially corroborated the evidence given by complainant. The complainant's evidence is corroborated by his prompt FIR (Ex.P/5) which is also proved by its scribe R.D. Mishra (PW-17). The evidence of these three eye-witnesses in favour of prosecution's case appears to be in accordance with the medical evidence in the shape of evidence of Dr. S.C.Gupta (PW-13). Rakesh (PW-9) deposed in his cross-examination that though he was doing his labour work in Delhi for about last ten years, but prior to incident on 25 th March, 2003 he came to village Ethar and returned back about 20 days later and as he was not serving anywhere, there was no necessity for him to take leave. Similarly, Vikas (PW-5) clearly deposed in cross-examination that at the time of incident he was studying in village Ethar. Investigating Officer R.D.Mishra (PW-17) clearly deposed that he recorded statements of complainant and his grand sons on 4 th April, 2003 and their names have been clearly mentioned in prompt FIR (Ex.P/5) lodged by complainant. Hence, the presence of complainant and his grand sons at the time of incident in village Ethar -( 12 )- CRA No. 479/2005 could not be doubted.
16. Much emphasis has been given by the counsel for the appellants on the facts mentioned by these witnesses that at the time of incident after seeing firing by appellants, they did not try to save Santosh. Complainant Kedarnath (PW-4) deposed in cross-examination that he is a retired Ranger from Forest Department and in FIR his age is mentioned as 70 years. In paras 13, 20, 30 and 31 of his deposition, Kedarnath clearly deposed that he did not reach near Santosh, as at that time firing was continuous and he was about 200-300 yards away from his son and he was perplexed at that time on the spot due to firing from pistols and his grand sons were also got perplexed. In para 23, complainant clearly deposed that all the fires were not made at one place and his son Santosh was also running.
17. Vikas (PW-5) deposed in para 23 that when firing was continued then he and complainant and Rakesh got perplexed. Rakesh (PW-9) deposed in para 15 that he also got frightened after hearing the sound of firing. In para 17 he deposed that when Santosh had run away and covered about 12 yards distance then he received first shot of firearm and thereafter received other shots. Complainant Kedarnath (PW-4) clearly deposed in para 31 that when firing was continued then if he would have reached on spot for intervening then he would also have been killed. Therefore, the conduct of these near relatives of the deceased could not be termed as unnatural or unbelievable. It is well settled that reaction of different persons could not be same on occurrence of an event due to difference of its nature and attitude. In any case, the conduct of complainant and his grand sons for not reaching near Santosh could not be said to be -( 13 )- CRA No. 479/2005 unnatural, as at that time, they were at about some distance from Santosh and Santosh was running to save himself and appellants were chasing him.
18. It is clear from the evidence of complainant and his grand sons that prior to incident they were not knowing the name of fourth unknown accused but later on they received knowledge that his name was Rajesh. During investigation, Test Identification Parade for appellant Rajesh was conducted by Naib Tahsildar Rajesh Mahor (PW-3) on 4th July 2003 in Sub-Jail Bhind, wherein according to his evidence, complainant Kedarnath rightly identified appellant Rajesh amongst total five persons who were stood up for identification. Identification Memo (Ex.P/4) prepared on 4 th July, 2003 bearing signatures of Rajesh Mahor (PW-3) and complainant Kedarnath (PW-4) also corroborates his evidence.
19. Complainant Kedarnath (PW-4) in para 25 deposed that incident started from his field, but dead body of Santosh was lying in adjacent field of Vidyaram. He deposed in para 32 that first fire by Vipin was made from front side of Santosh from a distance of 10-15 feet and second fire was also made from front side at a distance of 10-15 feet and third shot was fired from a distance of 5-6 feet. The third shot was fired after his son's falling down. It is clear from the evidence of these eye- witnesses and FIR (Ex.P/5) that first shot fired by Vipin had caused superficial injury on neck wherein bullet was stuck and second shot fired by Sappu was fatal, seized bullet reached up to right lung inside the body. The complainant has clearly replied in answer to Court's question recorded after para No.66 of cross-examination that when first shot was fired on his son Santosh then -( 14 )- CRA No. 479/2005 his son was not hugged by other appellants but only his hand was caught hold. Other eye-witnesses have also deposed that Rajesh had caught hold hand of Santosh as he was running to save himself. Third injury received on back was having blackening. Hence, it is clear that it was fired from a short distance, therefore, this argument is not appealing that after catching hold of hand of Santosh, firing by other appellant was not possible.
20. Complainant Kedarnath (PW-4) deposed that in a civil suit the trial Court has passed a money decree for Rs.70000/- in his favour and against appellant Ramnaresh, whose appeal was pending before this Court. In para 13, he admitted that he is also having previous enmity with appellant Sappu as previously in a criminal case arose on his report, family members of Sappu were acquitted due to compromise and in another criminal case wherein Sappu and his Uncle were accused in relation to his report, he also gave evidence before the relating Court. He denied the suggestion given by the defence counsel that he (complainant) had constructed his house after encroaching the land of Sappu's Uncle Dilip. Complainant deposed in para 57 that in a theft case regarding motorcycle, he, his son-in- law Brahma Narayan and other relative Ramdutt had given evidence against accused Vipin and Gajraj (acquitted by trial Court).
21. It is argued by learned counsel for the appellants that due to admitted enmity between families of complainant and appellants, it was not safe to rely on the eye-witness account given by complainant and his grand sons. It is significant to mention here that during investigation it was found by the relating police that a criminal conspiracy was made prior to incident for -( 15 )- CRA No. 479/2005 killing Santosh and on this point prosecution witnesses Omnarayan (PW-6), Baburam (PW-12) and Balveer (PW-14) were examined for the prosecution. Though Balveer (PW-14) turned hostile and relating co-accused persons Gajraj and Karu @ Rakesh were acquitted by the trial Court, but it appears that charge sheet was also filed in relation to an offence punishable under Section 120-B of the IPC. If previous enmity could be a reason for false implication of the accused, on the other hand it could be a reason for committing the alleged offence. After minutely and carefully analysing the prosecution evidence, the eye-witness account given by complainant Kedarnath (PW-4) and his grand sons Vikas (PW-5) and Rakesh (PW-9) appears to be trustworthy due to corroboration by medical evidence and complainant's evidence by his prompt FIR.
22. It is clear from the evidence of Investigating Officer R.D.Mishra (PW-17) that investigation was promptly started and it is also proved by the evidence of Constable Kamlesh Katare (PW-16) that on next day of the incident, i.e., 4th April, 2003 as Court Munshi of relating police station he had submitted the counter FIR in the relating JMFC Court Bhind. Investigating Officer R.D.Mishra (PW-17) deposed that on 10th April, 2003 he arrested appellant Ramnaresh vide arrest memo (Ex.P/9) and on same date he seized a country made 12 bore loaded pistol in presence of panch witnesses vide seizure memo (Ex.P/8). Panch witness Devesh Mishra (PW-7) on this point has totally supported the evidence of Investigating Officer. According to Ex.P/9, Ramnaresh was arrested on 10th April, 2003 at 10=00 am from Pawai Tiraha of Barohi town and at same place at 10=10 hrs a country made 12 bore pistol was seized from him vide memo -( 16 )- CRA No. 479/2005 (Ex.P/8). Another panch witness Dinesh Sharma of above memos has not been examined, but only due to this reason on this point the evidence of Investigating Officer and Devesh Mishra could not be discarded.
23. Shiv Dayal Sharma (DW-1) deposed that in Bhind at Ater Road Ashoknagar, Ramnaresh was residing for last five years in a rented house of Vijaykant and doing tuition work and he deposed that on 9 th April, 2003 Ramnaresh was taken from his house by the police in his presence. He also deposed in cross-examination that appellant Ramnaresh is having his own house in village Ethar and Ramnaresh used to visit village Ethar oftenly. It is not clear from the evidence of Shiv Dayal Sharma (DW-1) that accurately at what time on 9 th April, 2003 Ramnaresh was taken from his house by police and there is no evidence regarding any complaint by any family member of Ramnaresh for his alleged arrest on 9 th April, 2003 in crime to any official, hence the evidence of above mentioned Shiv Dayal Sharma (DW-1) is not capable of rebutting the clear evidence of above mentioned prosecution witnesses on this point. It is also clear from the medical evidence that in incident a firearm of 12 bore was used which caused injury on back of Santosh. It is clear from the evidence of Arms Moharrir Constable Suresh Dubey (PW-11) that on 27 th June, 2003 he had checked all the three countrymade pistols seized in investigation including a countrymade pistol of .12 bore and found that each of the pistols was in working condition and fire could be made from each of them. His report (Ex.P/14) recorded on 27 th June, 2003 and ballistic expert's report (Ex.P/24) also state same facts.
24. The evidence of Investigating Officer R.D.Mishra -( 17 )- CRA No. 479/2005 (PW-17) regarding arrest of appellant Sappu by him on 22nd April, 2003 vide arrest memo (Ex.P/11) and seizure of a .315 bore pistol with two rounds vide seizure memo (Ex.P/12) is totally corroborated by both the panch witnesses Mukesh (PW-8) and Shiv Narayan (PW-10). Investigating Officer and Mukesh (PW-8) have also identified the relating pistol at the time of recording of their evidence. Hence, the fact of seizure of a .315 bore countrymade pistol with rounds from the appellant Sappu is also established by the evidence available on record.
25. It is also clear from the evidence of Investigating Officer R.D.Mishra (PW-17) that on 22 nd April, 2003 appellant Rajesh was arrested by him vide seizure memo (Ex.P/10) and a countrymade pistol of .315 bore with two rounds were seized from appellant Rajesh vide seizure memo (Ex.P/13) and on this point also the evidence of Investigating Officer is totally corroborated by both the panch witnesses Mukesh (PW-8) and Shivnarayan (PW-10) and relating pistol is also identified by some witnesses. Hence, the fact of recovery of firearm from appellant Rajesh was also established.
26. It is clear from the evidence of Investigating Officer R.D.Mishra (PW-17) that actually Vipin was firstly arrested on 14th April, 2003 in another Crime No. 23/2003 registered at Police Station Barohi in relation to offences punishable under Sections 392, 34 of the IPC and Section 11/13 of MPDVPK Act and in above mentioned another crime a countrymade pistol of .315 bore with three rounds of same bore and a motorcycle were seized from Vipin vide seizure memo (Ex.P/23) and as original seizure memo of another crime was annexed in record of another sessions trial of same trial Court, -( 18 )- CRA No. 479/2005 the record of another sessions trial was called at the time of recording evidence of R.D.Mishra (PW-17). Investigating Officer deposed that Vipin was formally arrested in relation to this case on 14 th April, 2003 vide formal arrest memo (Ex.P/21). As relating pistol was seized in another crime, rightly the appellant Vipin was not charged for an offence punishable under Section 25 (1-B)(a) of the Arms Act in this case, but relating pistol was sent for examination to above mentioned Arms Moharrir and later on to FSL Sagar. The evidence regarding causing of entrance wound with a firearm by Vipin is found proved on the basis of evidence of relating eye-witnesses. Hence, the use of relating firearm by Vipin also appears established.
27. Yogendra Singh Kushwaha (PW-18) deposed that on 5th July, 2003 he was working as Arms Clerk in the Office of District Magistrate Bhind and in same section Vijaykant Sharma, another Arms Clerk was working with him, who expired on 31st December, 2003 in a vehicular accident. Yogendra Singh proved signature of the-then District Magistrate Bhind Satish Mishra on relating prosecution sanction order (Ex.P/18) and he also identified signature of Late Vijaykant Sharma, Arms Clerk on Ex.P/18. It is clear from Ex.P/18 that the District Magistrate has granted permission for prosecution of all the four present appellants under offence punishable under the Arms Act.
28. Placing reliance on the case of Raju Dubey vs. State of Madhya Pradesh [1998 (1) JLJ 236(SB)], it is argued by the appearing counsel for the appellants that as the relating seized pistols were not sent to relating District Magistrate before obtaining prosecution sanction, relating sanction is not valid. On this point, -( 19 )- CRA No. 479/2005 above mentioned citation has been overruled in a later decision of Division Bench of this Court in the case of Gurudev Singh @ Goga vs. State of Madhya Pradesh, [ILR (2011)MP 2053 (DB)], as District Magistrate could not be a ballistic expert. Hence, sending of seized firearms to relating District Magistrate for obtaining prosecution's sanction is unnecessary and would be a futile exercise.
29. We are of the considered opinion that the trial Court has properly and legally appreciated and analyzed the entire evidence available on record in the light of so many referred citations in its judgment and has not committed any error in convicting and sentencing each appellant for the above mentioned offences. Each appeal filed by separate appellant is having no substance.
30. In the result, Criminal Appeals No. 479/2005, 508/2005, 510/2005 and 618/2005 filed by relating appellant are hereby dismissed and the aforesaid conviction and sentence as recorded by the trial Court against each appellant is hereby affirmed.
31. Appellant Vipin of Criminal Appeal No. 479/2005 and appellant Rajesh of Criminal Appeal No.618/2005 are on bail after suspension of their sentence. Appellants Vipin and Rajesh are directed to immediately surrender before the trial Court to serve out their remaining jail sentence. Appellant Sappu of Criminal Appeal No.508/2005 and appellant Ramnaresh of Criminal Appeal No.510/2005 are in jail. Let the result of this appeal be intimated to them through relating Jail Superintendent. The trial Court's order regarding -( 20 )- CRA No. 479/2005 disposal of seized property is also affirmed.
With a copy of this judgment record of the trial Court be sent back immediately.
(Sanjay Yadav) (Ashok Kumar Joshi) (Yog) Judge Judge Digitally signed by YOGESH VERMA Date: 2018.04.12 18:37:15 +05'30'