Madhya Pradesh High Court
Sudheer Singh vs The State Of Madhya Pradesh Thr on 15 February, 2023
Author: Rohit Arya
Bench: Rohit Arya, Satyendra Kumar Singh
(1)
IN THE HIGH COURT OF MADHYA PRADESH,
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
CRIMINAL APPEAL NO.572 of 2015
BETWEEN :-
TINKU ALIAS VINAY SINGH S/O MUNNA SINGH
RAJAWAT, AGED 27 YEARS, R/O VILLAGE PACHERA,
P.S. PAWAI, DISTRICT BHIND
.....APPELLANT
(BY SHRI D.R.SHARMA AND SHRI S.N.DUBEY-ADVOCATES)
AND
STATE OF MADHYA PRADESH THROUGH POLICE
STATION GORMI, DISTRICT BHIND
.....RESPONDENT
(BY SHRI RAJESH SHUKLA - DEPUTY ADVOCATE GENERAL)
CRIMINAL APPEAL NO.632 of 2015
BETWEEN :-
SUDHEER SINGH S/O SHRI GYAN SINGH ALIAS
DHYAN SINGH BHADAURIYA, AGED ABOUT 43
YEARS, R/O MANHAD, PRESENTLY RESIDING AT
SAMADHIYA GALI GORMI, DISTRICT BHIND
.....APPELLANT
(BY SHRI AYUSH SAXENA-ADVOCATE)
(2)
AND
STATE OF MADHYA PRADESH THROUGH POLICE
STATION GORMI, DISTRICT BHIND
.....RESPONDENT
(BY SHRI RAJESH SHUKLA - DEPUTY ADVOCATE GENERAL)
--------------------------------------------------------------------------------------
Reserved on : 31/01/2023
Pronounced on : 15/02/2023
These appeals having been heard and reserved for judgment,
coming on for pronouncement this day, Hon'ble Shri Justice Rohit
Arya pronounced the following:
JUDGMENT
These appeals, under Section 374 of the Cr.P.C., arise out of the common judgment dated 26.05.2015 passed by Ist Additional Sessions Judge, Bhind in Sessions Trial No.83/2013, whereby the appellants respectively stand convicted for the offence punishable under Sections 302 and 302 read with 34 of IPC and each one of them is sentenced to undergo imprisonment for life with fine of Rs.1,000/-, in default to suffer additional RI for three months. Appellant Tinku alias Vinay Singh also stands convicted under sections 25(1)(1B)(a) and 27 of the Arms Act and sentenced to undergo R.I. for 1 year with fine of Rs.500/- in default to suffer R.I. for 1 month and three years' R.I. with fine of Rs.500/- in default to suffer R.I. for 1 month respectively, with the (3) direction that his custodial sentences shall run concurrently.
2. Prosecution story, in nutshell, is that on 10/12/2022 at about 8.50 PM, a report was lodged by complainant Bhure Sikarwar (PW3) at Police Station Gormi that he worked as Salesman in an English Liquor shop. On that day, at about 8.30 AM, he was sitting inside the shop along with helper Gopal Tomar. At that time, appellants Sudheer and Tinku came there and demanded liquor on credit. On being refused, both of them while abusing filthily left saying that they would be returning shortly. After some time, appellant Tinku armed with a .315 bore country made pistol together with appellant Sudheer Singh returned to the shop. At that juncture, as complainant's helper Gopal Singh Tomar came out of the shop for easing himself, both the appellants started assaulting him and appellant Tinku, with an intention to kill, fired at Gopal causing injury near neck due to which Gopal fell down. The incident was witnessed by Shailu Bhadauriya, Rakesh Bhadauriya and others. Thereafter, both the appellants fled form the spot. On such report, offence was registered at Crime No.263/12 and injured Gopal Singh was sent to CHC, Mehgaon, where his dying declaration (Ex.P/17) was recorded. From there, he was referrred to J.A. Hospital,Gwalior,where on 13/12/2012 he succumbed to the injury suffered by him. On receipt of morgue diary from PS Kampu, offence (4) under section 302, IPC was enhanced.
During investigation, spot map was prepared. Statements of the witnesses were recorded under section 161 of the Cr.P.C. Dead body of Gopal was sent for post mortem examination which was conducted vide Ex.P/1. A 315 bore country made pistol with a round and empty was seized from appellant Tinku vide seizure memo (Ex.P/11). Simple and blood stained earth were also seized vide seizure memo (Ex.P/8).
After completion of the investigation, charge-sheet against the accused persons was submitted in the Court of JMFC, Mehgaon, who committed the case to the Court of Sessions for trial.
3. Appellant Tinku on being charged with the offences punishable under section 302 of the IPC and 25(1B)(a) read with 27 of the Arms Act and appellant Sudheer Singh on being charged with the offence punishable under section 302/34 of the IPC, abjured the guilt. In the examination under section 313 of the Code of Criminal Procedure, they pleaded false implication.
4. On consideration of the evidence on record, the learned trial Judge, for the reasons recorded in the impugned judgment, found the appellants guilty of the offences charged with. He, therefore, convicted and sentenced them as indicated hereinabove.
5. Before adverting to the rival contentions, it would be expedient (5) to consider the medical evidence available on record.
On 18/12/2012, MLC of Gopal was conducted by Dr. V.R.Morya(PW8), who noted following injuries on his body vide Ex.P/16:-
1- Gunshot entry wound over right side of neck, size 1 cm above the right clavicle region, oval shaped, rupture of carotid artery & stenomastoid muscle. Patient referred to J.A.H. Gwalior. Excessive hemorrhage.
- Inverted margins less than a feet. No blackening, no
tatooing present
- Caused by firearm object within three hours.
After Gopal's death on 13/12/2012, his dead body was sent for post mortem examination, which was conducted by Dr.Nikhil Agrawal (PW1), Autopsy surgeon. He noted following ante mortem injuries on his body vide report (Ex.P/1):-
Stitched wound present on base of neck on anterior aspect extending from mid to right side criss-cross or uniform in shape (having four limbs) extending all the four directions in vertical & horizontal manner. Wound is 11 cm long vertically and 10 cm long horizontally, total stitches found are 11 in number. On removing the stitches and reconstructing the wound by meeting margins, an irregularly rounded 1 cm in diameter with abraded margins wound present on neck, 6 cm vertically above the lower end of vertical limb of wound & 56 cms above the pubic symphasis and just right lateral from midline. On meeting the margins of wound loss of tissue evident with irregularly rounded wounded with margins found inverted that showing the firearm entrance wound. All the four extensions of wound having sharp margins with stitches that appear to be made (6) surgically to extend and explore the wound during treatment. On dissecting the wound & neck & chest cavity, echymosis present on neck at neck & right side with extension of echymosis in upper chest region behind the manubrium and cardiac region. Stitches evident in muscle layer of base of neck and upper chest part with blood vessels as appear that ligation would have been done during treatment. Heavy echymosis present in whole of neck region at base underneath the wound anterioirly and on right side. Muscles underneath the wound having 1 cm diameter damage along with damage to blood vessels that extending into the thoracic cavity at supramanubrial region and damaging the vessel of neck and aortic arch at its superoanterior aspect that having a finger tip admissible rent size = 0.8 cm x 0.5 cm and on exploring its having a large blood clot having its length of vessels diameter of calibre and a dent present on body of T1 vertebra at anterior & lateral part on right side underneath damaged part of aortic arch.
The above mentioned injury has been caused by firearm from distant shot that caused the damage to large vessel (aortic arch) that leads to haemorrhage which found to be fatal to life and sufficient to cause death in ordinary course of nature.
Direction of shot would have been anterior to posterior in slight oblique manner with right to left.
In his opinion, the cause of death was cardiorespiratory failure as a result of injury to large blood vessel of thorax that has been caused by firearm from distant shot. The duration of death was within 3 to 12 hours of the postmortem examination and the nature of death was homicidal.
6. Assailing the legality, validity and propriety of the impugned judgment, learned counsel for the appellants have made the following (7) submissions:-
(i) The impugned judgment is based upon what is termed as mis-appreciation of the evidence on record, inasmuch as material exculpatory evidence has not been considered by the learned trial Court in right perspective.
(ii) PW3 Bhure Singh, who has been projected as an eye-
witness, could not have been relied upon, inasmuch as the counter of liquor shop is protected by gratings and it is not possible to have a clear view of outside while sitting inside the shop, particularly during night time. The incident is said to have occurred at about 8.30 PM. However, the said fact has been ignored by the learned trial Court.
(iii) The dying declaration (Ex.P/17) does not bear the endorsement of doctor that the deceased was in a fit state to give such statement. On the contrary, the report lodged by Bhure Singh (Ex.P/3) reveals the condition of deceased to be quite serious. Had deceased been in a fit state, the FIR ought to have been lodged by him. Such is not the case. The dying declaration was recorded one hour thereafter. Dr. B.R.Morya (PW9) has deposed that while recording dying declaration, relatives of deceased were present there and Bhure Singh (PW3) was intervening in between. This clearly suggests that the dying declaration has been given under pressure and the same is not reliable. (8)
(iv) The other two eye-witnesses PW4 Shailendra Singh and PW5 Rakesh are not the residents of vicinity where the incident took place. In fact, they are the relatives of the deceased. PW4 Shaildenra is son of deceased's maternal uncle and PW5 Rakesh is deceased's brother-in-law. As such, they are interested witesses and their presence near the spot is doubtful. No independent witness has been examined by the prosecution despite the fact that there are other shops situated near the spot.
(iv) PW3 Bhure Singh, PW4 Shailendra and PW5 Rakesh all have deposed that there was a quarrel between the appellant and PW3 Bhure Singh on the issue of demand of liquor on credit. None of them has deposed that there was any altercation between the deceased and appellant. In such a scenario, there was no mens rea with the appellant to kill the deceased. As such, if the incident has occurred without any intention and premeditation, the same would fall under section 304 Part I or II of the IPC. However, the trial Court has not taken the abovesaid facts into account.
(v) PW3 Bhure Singh in his statement recorded under section 161, Cr.P.C. has stated that both the appellants have caused gunshot injury to the deceased. Similar version has been given by the deceased in his dying declaration (Ex.P/17). However, as per medical evidence, (9) only one gunshot injury has been found on the body of deceased. As such, the entire prosecution story is doubtful.
(vi) The country made pistol allegedly seized from appellant Tinku was not produced before the Court. As such, it could not have been construed that the seized pistol was weapon of offence. The said pistol was sent for examination after a long time during which period, possibility of its tampering could not be ruled out. As such, appellant Tinku could not have been convicted for the offences punishable under sections 25(1B)(a) and 27 of the Arms Act. Besides, there is no compliance of section 157, Cr.P.C.
With the aforesaid submissions, it is contended that conviction of the appellants cannot be sustained in the eyes of law and they deserve to be acquitted.
In response, learned Public Prosecutor, while referring to the incriminating pieces of evidence on record, submitted that the conviction is well merited.
7. Heard, learned counsel for the parties.
8. PW3 Bhure Sikarwar is the complainant. In his testimony before the trial Court, he has deposed that on 10/12/2012, at about 8.30 PM, he was sitting inside the liquor shop along with helper Gopal Singh Tomar. At that time appellants Sudheer and Tinku came there and demanded (10) liquor on credit. On being refused, both of them abused him filthily and went away saying that they would be returning shortly. After a short while, appellants Tinku and Sudheer returned. Tinku was armed with a 315 bore country made pistol. At that juncture, Gopal came out of the shop for making water. As he came out, both of them started beating him, while appellant Sudheer exhorted Tinku to fire at him. Appellant Tinku then fired at the neck of Gopal, who fell down and the appellants fled away. Shailu (PW4) and Rakesh (PW5) were also present on the spot. Then the complainant called his associates from his Office and took Gopal to a hospital, while complainant along with Sanjay went to Police Station Gormi where he lodged FIR (Ex.P/6). Spot map (Ex.P/7) was prepared by the Police. He is also witness to seizure memo (Ex.P/8) of one 315 bore empty, blood and simple soil, arrest memos (Ex.P/9 and P/10) of the appellants and seizure memo (Ex.P/11) of country made pistol from appellant Tinku and a live cartridge. When Gopal suffered the gunshot he was able to speak, he remained hospitalized for 2-3 days and then died. In paragraph 2 of his cross- examination, he has deposed that a channel-mesh is affixed in front of liquor shop counter and the customers take liquor from outside the channel-mesh. Appellants Sudheer and Tinku had also demanded liquor while standing outside the channel. At that time, Shailu and Rakesh (11) were also standing outside. While demanding liquor, appellants were not having any country made pistol. On being denied credit, they left abusing and threatening while saying they would be returning in 1-2 minutes. In paragraph 4, he has deposed that appellants returned within 1-2 minutes . Both of them slapped Gopal while appellant Sudheer asked appellant Tinku to fire at him. In paragraph 5 he has deposed that when Sudheer had asked to fire, at that time he was inside the liquor shop. In paragraph 7 he has deposed that he came out of the shop after the appellants had fired at Gopal and left. In paragraph 15 he has deposed that there was no fog at the time of incident. He has denied the suggestion that some unknown person had fired at Gopal at a secluded place in the market.
9. PW4 Shailendra Singh is eye-witness of the incident. He has deposed that on 10/12/2012 between 8 to 8.30 PM, he had gone at the shop for purchasing liquor. Bhure Sikarwar was there inside the shop. Appellants Tinku and Sudheer were fighting with Bhure. They were abusing filthily and demanding liquor without paying money. At that juncture Gopal came out of the shop for peeing and appellant Sudheer asked Tinku to shoot him, upon which Tinku fired from his 315 bore country made pistol at his neck. Thereafter appellants fled away. In paragraph 4 of his cross-examination, he has deposed that when he had (12) reached the shop, at that time the altercation was going on and he had remained there till Gopal was shot. In paragraph 9 he has deposed that when he had gone to purchase liquor, at that time, Bhure and Gopal were sitting inside the shop.
10. PW5 Rakesh Bhadoriya is another eye witness of the incident. He has deposed that on 10/12/2012 he was going from Ambah to Manhad and at about 8.30 PM, had halted at Gormi to purchase liquor. There appellants Sudheer and Tinku were demanding free liquor and on being refused went away for a while and returned with a 315 bore country made pistol. As Gopal came out of the shop for peeing, appellants assaulted him and thereafter on exhortation of Sudheer, Tinku shot Gopal at his neck. The incident was seen by Bhure, Sultan Singh and Shailu Bhadauriya. In paragraph 6 of his cross-examination, he has deposed that Sudheer and Tinkju had returned in 2-4 minutes. Their houses are at a distance of about 200 meters from the shop. In paragraph 9 he has denied the suggestion that Gopal was shot at by some unknown person in the lane behind the shop.
These witnesses were subjected to in extenso cross-examination, but nothing substantial could be elicited in their testimonies to dislodge the same.
11. PW6 Vijay Kant Sharma is the Arms Clerk. He has proved the (13) permission letter (Ex.P/12) for prosecuting appellant Tinku under the Arms Act issued by the District Magistrate.
12. In defence, four witnesses namely Sultan Singh, Devendra Singh, Shyamlal and Ramjilal Sharma have been examined.
DW1 Sultan Singh, while resiling from his case diary statement (Ex.D/1), has deposed that two years ago, between 7 to 7.30, he was sitting inside the liquor shop when the appellants came for demanding liquor on concession. There was no one inside the shop except him and Gopal. On being refused, appellants started quarelling. Then this witness called the police. Police came and both the appellants were apprehended. About 1- 1.5 hours later, Gopal came out and had gone to the adjoining lane for urinating. Some of the persons rushed from there and informed this witness that Gopal had been shot. Then this witness and the Contractor went there and asked Gopal as to who had shot him, Gopal replied that he could not see due to darkness.
DW2 Devendra Singh is the owner of a nearby photocopy shop. He has deposed that on 10/12/2012, between 8 to 8.30 PM, he was sitting inside his photocopy shop. At that time Police had come in a Jeep in which appellant Sudheer Bhadoriya was also sitting. The Jeep stopped near his shop and 4-5 police personnel came out and went (14) inside the abutting lane. The lane after some distance opens at Porsa road. Adjoining that lane is a shop besides which there is English Liquor shop. When the police personnel had gone inside, at that time, Sudheer Bhadoriya was sitting in the jeep. Thereafter he heard sound of a gunshot coming from that lane. After some time police came out of the lane with appellant Tinku Rajawat and took him away in the jeep. After 1-1.5 hours, he came to know that Sudheer had been implicated by police in a case of murder by gunfire near liquor shop. In paragraph 3 of is cross-examination, he has admitted that it is not possible to see the spot from his shop. Besides, he was also not aware about the people who came and went in/from the liquor shop. In paragraph 4 he has admitted that had not seen the incident.
Similar statement has been given by DW3 Shyam Mahal. In Para-2 of his cross-examination, he has deposed that appellant Sudheer is his neighbor and he is in good terms with him. He has further deposed that it is not possible to see the liqour shop from his home nor he is aware as to who comes to that liqour shop.
DW4 Ramjilal Sharma has also given similar statement. However, in Para-2 of his cross-examination, he has deposed that he was not aware of the incident that occurred at the liqour shop. He had only heard sound of gun fire. In para-3, he has admitted that he has (15) good relations with the appellants.
13. Thus, from the aforesaid evidence brought on record, presence of appellants Tinku & Sudheer on the spot is well established. From the testimonies of PW3 Bhoore Sikarwar, PW4 Shailendra Singh & PW5 Rakesh Bhadauriya, it is evident that the fatal gunshot was fired by appellant Tinku in the course of an altercation ensued upon refusal of Bhure Sikarwar to give liqour to the appellants on credit. PW3 Bhure Sikarwar, in paragraph 14 of his cross-examination, has deposed that he knew appellant Tinku from last 1-2 years. In paragraph 15, he has deposed that although it was cold, yet there was no fog. As such, the contention of learned counsel for appellants that it was not possible for PW3 Bhure Sikarwar to see the incident while sitting inside the shop with channeled-mesh installed at the counter, cannot be countenanced, particularly, in the wake of corroborative evidence of PW4 Shailendra & PW5 Rakesh who are eye-witnesses to the incident and were standing outside the shop when Gopal was shot at by appellant Tinku. The learned Trial Court has rightly not given weightage to minor inconsistencies in their depositions as the same do not go to the root of the case. Although, the defence witnesses have come up with a different version about false implication of appellants, yet their testimonies do not inspire confidence for more than one (16) reason. None of the defence witnesses claims to have seen the incident. Besides being acquaintance and friends of the appellants, their testimony is in stark contravention to dying declaration Ex.P/17, wherein the deceased has categorically stated that he was shot at by the appellants. It is well settled that mere absence of doctor's certificate as to fitness of the declarant's state of mind would not ipso facto render the dying declaration unacceptable (Laxman Vs. State of Maharashtra ((2002)6 SCC 710), referred to) and, therefore, contention of learned counsel for the appellants in this behalf cannot be countenanced. Further, mere presence of relatives and well-wishers of deceased at the time of recording of dying declaration would not render the entire dying declaration doubtful. In fact, the situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept the veracity of his statement, as engrafted in the maxim nemo moriturus proseumitur mentiri - a man will not meet his maker with lie in his mouth. It is noteworthy that as per medical evidence available on record, only one gunshot injury has been found on the body of the deceased. The dying declaration, in essence, is corroborated by the evidence of eye-witnesses PW3, PW4 and PW5 who all have attributed the fatal gunshot to appellant Tinku. As such, complicity of the (17) appellants in causing death of deceased is well established from the evidence on record.
14. This brings us to the nature of offence committed by the appellants. As per the prosecution version, on the fateful day, appellants Tinku and Sudhir had come to the liquor shop and demanded liquor on credit. They were refused upon which the altercation took place. They went away and returned with country made pistol in a short while. It is noteworthy that as per evidence of Bhure (PW3) they returned just within 1-2 minutes and thereafter on exhortation of appellant Sudheer, appellant Tinku fired the fatal gunshot at Gopal who had come out of the shop at that juncture for easing himself. Thus, it cannot be said that initially when the appellants had come to the liquor shop for purchasing liquor, they had come with any pre-planning or premeditation for assassinating Gopal. Here it is also pertinent to mention that the altercation had taken place with Bhure (PW3) and not with deceased Gopal, which clearly reflects that there could not have been any mens rea for committing the murder of Gopal and the same was committed in a sudden fight, in a heat of passion and without any premeditation. Thus, the act of the appellants falls within exception 4 of S.300, IPC. However, as Gopal came out of the shop, appellant Sudheer exhorted to kill him upon which the fatal gunshot was fired by appellant Tinku. As (18) such, it can be inferred that the said fatal gunshot was fired with an intention of causing death of Gopal which had developed at the spur of that moment and thus the act of appellant Tinku clearly falls under section 304 Part I of the IPC while that of appellant Sudheer falls under S.304 Part 1 read with 34 of the IPC as he had been an accomplice of main accused Tinku right from the beginning and had also exhorted him to cause death of Gopal.
Now adverting to the conviction of appellant Tinku under sections 25(1B)(a) and 27 of the Arms Act. A country made pistol of 315 bore along with a round and empty is alleged to have been seized from the appellant vide seizure memo (Ex.P/11) by Investigating Officer Lokesh Kumar Sinha (PW8). However, sample-seal is not marked on the said seizure memo. Besides, the said seizure memo is dated 10/12/2012 while the country made pistol has been received by the Arms Clerk PW6 Vijaykant Sharma on 22/01/2013 for obtaining sanction for prosecution. There is no evidence forthcoming on record as to where and under what circumstances the said country made pistol remained during the period 10/12/2012 to 22/01/2013. Further, there is no evidence with regard to taking of the said pistol from Malkhana to the Arms Clerk. That apart, most significantly, the seized country made pistol has not been produced before the trial Court by the prosecution. (19) In view of the aforesaid glaring lacunae, it cannot be said that the prosecution has proved beyond reasonable doubt that the country made pistol in respect whereof sanction was obtained, was in fact the weapon of offence. As such, conviction of the appellant for the offences punishable under sections 25(1B)(a) and 27 of the Arms Act cannot be sustained and the same are liable to be set aside.
However, even if recovery of weapon is not established or proved, the same cannot be a ground to acquit the accused when there is direct eye-witness account available on record. Recovery of the weapon used in the commission of offence is not a sine qua non to convict the accused. If there is direct evidence in the form of eye- witness, even in absence of recovery of weapon, the accused can be convicted (State through the Inspector of Police Vs. Laly @ Manikandan & another (2022 SCC OnLine SC 1424, referred to)
14. Accordingly, conviction of appellant Tinku alias Vinay Singh for the offences punishable under sections 25(1)(B) and 27 of the Arms Act together with corresponding sentences, as awarded by the trial Court, are set aside.
However, so far as conviction of appellant Tinku alias Vinay Singh under section 302 of the IPC and that of appellant Sudheer Singh under section 302/34 of the IPC are concerned, in view of the foregoing (20) discussion, the same are altered to those under sections 304 Part I and 304 Part I/34 of the IPC respectively.
Coming to the question of sentence, appellant Tinku alias Vinay Singh has put in about ten years of incarceration while appellant Sudheer Singh has put in about 1 year and 8 months of incarceration including the period spent during trial. The incident is of the year 2012 and more than ten years have passed by. During this period they have suffered the ordeal of trial and appeal. We do not think that at this stage any useful purpose would be sub-served by sending them back to jail and, in our considered opinion, the custodial sentence deserves to be reduced to the period already undergone.
Accordingly, the appeals are partly allowed. Conviction of respective appellants from section 302 and 302/34 of the IPC is altered to those under section 304 Part I and 304 Part I/34 of the IPC and the custodial sentences are reduced to the period already undergone although the fine sentences with corresponding default stipulation, as awarded by the trial Court, are maintained. Rest of the impugned judgment is kept intact.
Appellant Tinku alias Vinay is in jail. Subject to depositing the fine amount, if not already deposited, he shall be released forthwith if not required in any other case, failing which he shall undergo the (21) default sentence as awarded by the trial Court.
Appellant Sudheer Singh is on bail. He is directed to deposit the fine amount, if not already deposited, within fifteen days from today failing which he shall undergo the default sentence as awarded by the trial Court. Subject to deposit of fine amount, his bail bonds shall stand discharged.
A copy of this judgment along with the record of the trial Court be sent to the trial Court for compliance.
A copy of this judgment be retained in the connected appeal.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
(and)
ANAND
SHRIVASTAV
A
2023.02.15
16:29:36
+05'30'