Madhya Pradesh High Court
Raja @ Praveen Singh vs The State Of Madhya Pradesh Judgement ... on 24 October, 2013
Bench: A.K. Shrivastava, Vimla Jain
CRA No.461/2001
1
HIGH COURT OF MADHYA PRADESH JABALPUR
DIVISION BENCH:
Hon'ble Shri Justice A.K. Shrivastava, &
Hon'ble Smt. Justice Vimla Jain
CRIMINAL APPEAL No. 461/2001
.........Appellant: Raja alias Pravin Singh
s/o Dheeresh Pratap Singh
R/o village Chunia, Police Station
Shahdol, District Shahdol (M.P.)
Versus
.......Respondent : The State of Madhya Pradesh
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Shri Sanjeev Singh, Advocate for the appellant.
Shri Pramod Chourasiya, Public Prosecutor for the
appellant/State.
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JUDGMENT
(Delivered on this 24th day of October, 2013) Per Justice A.K. Shrivastava:
Judgment passed in this appeal shall also govern the disposal of connected Criminal Revision No.423/2001 (Munnu v. Pradeep Singh and others) filed by complainant praying to convict the acquitted co-accused persons, namely, Pradeep Singh, Bhammu Singh, Lokesh Singh, Viresh Pratap Singh and CRA No.461/2001 2 Dhiresh Pratap Singh, who were acquitted by learned Trial Court from the charges punishable under Section 147 and 302/149 IPC, since both the matters have arisen from common judgment dated 23.2.2001 passed by learned Second Additional Sessions Judge, Shahdol in Sessions Trial No.191/2000 convicting co- accused Raja alias Pravin Singh under Section 302 IPC and sentencing them to suffer imprisonment for life, we have heard both the matters together.
2. No exhaustive statements of fact are required to be narrated for the purposes of disposal of this appeal since in elaboration they are mentioned in para-3 to 8 of the impugned judgment. However, for ready reference it would be condign to mention here that on the fateful day on 13.6.2000 at 10.30 p.m. when Jhallu (hereinafter referred to as "the deceased") along with certain other persons including Munnu, Rajaram, Kallu, Madhav, Jagdish alias Ponge and Hiramani Patel was going to his shop from the flour mill of Hiramani Patel, at that juncture, present appellant as well as other acquitted co-accused persons came there. The acquitted co-accused persons exhorted the appellant to kill the deceased, as a result of which present appellant fired from his country-made pistol of .12 bore (hereinafter referred to as "the Katta") upon the person of the deceased resulting into his death on account of receiving three CRA No.461/2001 3 gunshot fire. A Dehati Nalishi was lodged by Munnu (PW-5) who is son of the deceased immediately after the incident.
3. On lodging of the Dehati Nalishi criminal law was triggered and set in motion. The investigating agency arrived at the spot and prepared the spot map; seized the dead body of the deceased and sent it for postmortem; seized ordinary and blood stained clothes of the deceased; arrested the accused persons and seized the weapons which they were carrying and also seized the Katta which was used as weapon in the commission of the offence.
4. After the investigation was over a charge-sheet was submitted in the committal Court which committed the case to the Court of Session from where it was received by the Trial Court for trial.
5. Learned Trial Judge on the basis of the averments made in the charge-sheet, framed the charge punishable under Sections 148 and 302 IPC against the present appellant while other acquitted co-accused persons were charged for the offence punishable under Section 147 and 302/149 IPC. Needless to say that the appellant and other acquitted co-accused persons abjured the guilt and pleaded complete innocence and requested for the trial.
CRA No.461/20014
6. In order to bring home the charges, the prosecution examined as many as 11 witnesses and also placed Ex.P-1 to P-30, the documents on record. The defence of the appellant and acquitted co-accused persons is of false implication and same defence they set forth in their statement recorded under Section 313 Cr.P.C. In support of their defence they examined one witness, namely, Ramadhar Dwivedi (DW-1) so as to prove the fact that at the time of incident it was a complete dark night and therefore, it cannot be said that the eyewitnesses have seen the appellant causing injury by Katta fire.
7. Learned Trial Judge after appreciating and marshalling the oral and documentary evidence placed on record came to hold that charge under Section 148 IPC is not proved against the appellant and eventually acquitted him from the said charge and further held that none of the charges are proved against the acquitted co-accused persons and eventually acquitted them. No appeal has been preferred by the State against the impugned judgment acquitting the present appellant under Section 148 IPC and acquitting the acquitted co-accused persons. However, complainant Munnu has filed connected Criminal Revision No.423/2001 praying to convict the acquitted co-accused persons under Section 147 and 302/149 IPC. The learned Trial Judge eventually convicted the present appellant for CRA No.461/2001 5 the offence punishable under Section 302 IPC and passed the sentence which I have mentioned hereinabove. In this manner, this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence.
8. The contention of Shri Sanjeev Singh, learned counsel for the appellant is that looking to the quality of the evidence which has been adduced by the prosecution it cannot be said that appellant had caused Katta fire upon the deceased resulting into his death. By inviting our attention to the testimony of defence witness Ramadhar Dwivedi (DW-1) it has been contended that at the time of incident it was a complete dark night and therefore, it was not humanly possible to see the eyewitnesses that who had actually fired the Katta, therefore, the entire case of the prosecution rests upon heavy doubt and it is well settled in law that suspicion however grave it may be, it cannot take place of strict proof. Hence, it has been prayed that by allowing this appeal the judgment of conviction and order of sentence be set aside and the appellant be acquitted from all the charges.
9. On the other hand, Shri Pramod Chourasiya, learned Public Prosecutor argued in support of the impugned judgment and submitted that the prosecution has taken pains to examine CRA No.461/2001 6 as many as five eyewitnesses and all of them in singular voice have deposed that it was appellant who caused Katta fire upon the deceased resulting into his death. The evidence of the eyewitnesses is corroborated by statement of Autopsy Surgeon Dr. P.K. Khare (PW-3) and the postmortem report Ex.P-20 in which gunshot fire injuries were found on the person of the deceased and therefore, the learned Trial Court did not err in convicting the appellant for the offence punishable under Section 302 IPC.
10. Shri P.N. Pathak and Shri R.P. Mishra, learned counsel by pressing the connected criminal revision submitted that there is overwhelming evidence that acquitted co-accused persons with a common object had exhorted the present appellant to kill the deceased and if that is the position the learned Trial Court had erred in acquitted them and therefore, it has been prayed that by allowing the revision application the judgment of acquittal acquitting co-accused persons be set aside and they be held guilty for the offence punishable under Section 147 and 302/149 IPC by passing suitable sentence against them.
11. Having heard learned counsel for the parties, we are of the considered view that this appeal as well as the connected criminal revision are required to be dismissed. CRA No.461/2001 7
12. In the present case, there are as many as five eyewitnesses to the incident, they are Munnu (PW-5), Rajaram (PW-6), Kallu (PW-7), Madho (PW-8), Jagdish alias Ponge (PW-9) and Hiramani Patel (PW-10). Out of these five eyewitnesses, the author of Dehati Nalishi (Ex.P-5) is Munnu (PW-5) who is son of the deceased. On bare perusal of testimony of the author of Dehati Nalishi, Munnu we find that specifically he is saying that he along with his father (deceased) and other persons was going from the flour mill of Hiramani (PW-10) and at that juncture, present appellant and other acquitted co-accused persons came there. According to him, the other acquitted co-accused persons were scolding upon the deceased by hurling the abuses of mother and sister and exhorted the appellant by saying "Maro". Thereafter, the present appellant fired three Katta fire upon the deceased, as a result of which immediately he fell down and breathed his last. This witness was cross-examined at length but he remained embedded in his version despite there being a robing cross- examination over him. By examining from different angles of the cross-examination of the testimony of this witness we find that his evidence is clear, cogent and trustworthy and every time he stated that it was the appellant who caused Katta fire upon the deceased as a result of which he died. Munnu (PW-5) has also CRA No.461/2001 8 proved Dehati Nalishi (Ex.P-5) which he lodged immediately in the concerning police station. Thus, from the testimony of this witness it has been proved that appellant caused Katta fire upon the deceased resulting into his death.
13. The testimony of this eyewitness is corroborated by evidence of another eyewitness Kallu (PW-7). True, the other eyewitnesses have been declared hostile but since there is clear, cogent and trustworthy evidence of Munnu (PW-5) and that of Kallu (PW-7) the case of the prosecution has been emphatically proved form their testimony.
14. That apart, the evidence of the aforesaid two eyewitnesses has been further corroborated by evidence of Autopsy surgeon Dr. P.K. Khare (PW-3) who has also proved the postmortem report of deceased (Ex.P-20). On going through the testimony of autopsy surgeon and postmortem report of the deceased we find that the deceased had sustained the following injuries:-
(I) body was cold, rigor mortis seen all over the body;
(ii) a lacerated wound 6 cm x 4 cm x ½ cm in right side of chest over the 9th, 10th and 11th rib in mid axillary line;
(iii) an elliptical shape punctured wound over the right iliac crest 1 cm in CRA No.461/2001 9 diameter x 4 cm deep posterior but not piercing the abdominal cavity;
(iv) one c.m. Diameter punctured wound in middle of sternum bone in anterior aspect of chest; tatooing marks are seen around the punctured wound in about 3 cm diameter wound is about 10 cm deep.
According to the autopsy surgeon, the deceased had died on account of shock produced by firearm bullet due to excessive haemorrhage inside the body. The doctor further found that death was homicidal in nature and the firearm weapon was used from the distance of 2-4 feet.
15. We have also gone through the reasoning assigned by learned Trial Court convicting the appellant under Section 302 IPC and we find that the same has been arrived at after marshalling and appreciating the evidence correctly. Thus, we hereby extend our stamp of approval to those reasonings and we hereby uphold the finding of learned Trial Court that the appellant has committed the offence punishable under Section 302 IPC. Thus, the conviction of appellant under this section is hereby affirmed.
16. However, we do not find any merit in the contention of Shri P.N. Pathak and Shri R.P. Mishra, learned counsel CRA No.461/2001 10 appearing for the complainant Munnu that the role assigned to the acquitted co-accused persons brings their case within the clutches of Section 147, 302/149 IPC since only this much has come in the testimony of Munnu (PW-5) that the acquitted co- accused persons after hurling the abuses of mother and sister were saying "Maro", therefore, according to us, the term "Maro" would not mean to kill. In this context, we may profitably place reliance upon the decision of Supreme Court Ajay Sharma v. State of Rajasthan, 1998 Cri.L.J. 4590. We have also gone through the reasoning assigned by learned Trial Judge acquitting the acquitted co-accused persons and looking to the limited scope of revision under Section 397 and 401 Cr.P.C., we are of the view that the learned Trial Judge rightly found that there is no evidence against the acquitted co-accused persons in order to convict them for the charges framed against them.
17. For the reasons stated hereinabove, the appeal filed by the accused Raja alias Pravin Singh is dismissed and the connected revision filed by complainant also stands dismissed.
{A.K. Shrivastava} {Smt. Vimla Jain}
Judge Judge
24.10.2013 24.10.2013
Sach.