Madhya Pradesh High Court
The State Of M.P. vs Baburam Judgement Given By: Hon'Ble ... on 12 September, 2013
1 Cr.A. No.1366/03
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
SINGLE BENCH:HON'BLE SHRI JUSTICE A.K.SHRIVASTAVA
CRIMINAL APPEAL NO. 1366/2003
APPELLANT : State of Madhya Pradesh, through Police
Station, Seoni, District Seoni,
Versus
RESPONDENT: Baburam, S/o Niranjan Singh
Rathore,Occupation Security Guard, State
Bank of India, Seoni.
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Appellant by Shri Umesh Pandey, Public Prosecutor.
Complainant by Shri H.S. Dubey and Shri Amit Dubey, Advocate.
Respondent by Shri L.S. Singh, Senior Advocate with Shri J.L.
Soni, Advocate.
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JUDGMENT
(12.09.2013) After obtaining leave to file appeal, the State of M.P. has assailed the judgment dated 26.3.2003 passed by learned Chief Judicial Magistrate, Seoni in Criminal Original Case no. 1021/97 acquitting the respondent-accused from the charge punishable under Section 338 IPC.
2. Sans unnecessary details the facts lie in a narrow compass. Suffice it to say that on 4.2.1997 the complainant Ajay Prakash Sahu (hereinafter referred to as the injured complainant) was serving in the State Bank of India, Seoni Branch and he was assigned duty in the tailor counter of the Bank. It is said that the 2 Cr.A. No.1366/03 accused-respondent who was serving on the post of Security Guard was about to go to Ghansour to carry the cash along with the cashier. A 12 bore service gun was given to him by the Bank for the security purpose in cash Section of the Bank. It is the further case of the prosecution that by pointing out the barrel of the impugned gun towards the injured complainant, the accused- respondent was loading the gun as a result of which on account of his negligence the gun shot fire took place and the pellets strucked the face and other parts of the body to the injured complainant. Immediately he was sent to the District Hospital, Seoni. The matter was reported to the police and eventually the Investigating Agency arrived at the Hospital where a Dehati Nalishi was lodged by the complainant in the Hospital. On the basis of the said Dehati Nalishi the FIR was registered. On lodging of the Dehati Nalishi the criminal law was triggered and set in motion. The Investigating Agency recorded the dying declaration of the injured; recorded the statement of the witnesses; prepared the spot map; arrested the accused and seized the gun which was used in the commission of the offence and sent it for ballistic expert.
3. After the Investigation was over a charge sheet was submitted in the Trail Court. The learned Trial Judge on the basis of the allegations made in the charge-sheet framed charge under 3 Cr.A. No.1366/03 Section 338 IPC against the respondent-accused which he denied and requested for trial.
4. Thereafter, the prosecution examined its witnesses and also proved the documents. The defence of the accused is that he is innocent and further he was not negligent towards his duty. It is his further defence in 313 Cr.P.C. statement that while loading the gun automatically the fire took place although he made all efforts of safety while loading the gun.
5. The learned Trial Judge on the basis of the evidence placed on record came to hold that charge under Section 338 IPC is not proved and eventually acquitted the respondent. In this manner the State of M.P. has filed this appeal after obtaining leave to file appeal.
6. The contention of Shri Pandey, learned Public Prosecutor is that looking to the evidence placed on record and the admission of the accused himself in 313 Cr.P.C. statement, it is emphatically proved that offence under Section 338 IPC has been committed by the respondent-accused and there is no hair scape to hold that respondent has not committed the offence under Section 336 IPC. Hence, it has been prayed that by allowing this appeal suitable sentence be passed against the respondent-accused.
7. Shri Dubey, learned counsel appearing for the 4 Cr.A. No.1366/03 complainant submitted that the doctrine of res ipsa loquitur is applicable in the present case for the simple reason that if the gun would have been loaded pointing out the barrel towards the sky the injury would not have come to the injured-complainant and, therefore, when the respondent-accused himself has admitted in 313 Cr.P.C. statement that while loading the gun accidentally the fire took place it proves that he was negligent. Hence, it has been prayed that the appeal be allowed.
8. On the other hand, learned counsel appearing for the respondent/accused argued in support of the impugned judgment and submitted that it is not at all possible to load a gun pointing the barrel towards the sky for the simple reason that a soon as the cartridges will be inserted in the gun in the direction of 90 degree immediately it will fell down and, therefore, unless and until the barrel of the gun is kept parallel to the ground it is not possible to load it. By pointing out the finding of learned Trial Court, para 18 of the impugned judgment it has been submitted that the prosecution has utterly failed to adduce any material evidence in order to prove the negligence of the respondent and if that is the position the learned Trial Court did not err in acquitting the respondent/accused and, therefore, this appeal sans substance and the same be dismissed.
9. Having heard learned counsel for the parties, I am of 5 Cr.A. No.1366/03 the view that this appeal deserves to be dismissed.
10. On bare perusal of the impugned judgment passed by learned Trail Court and by paying heed to para 18, it is gathered that the prosecution has not examined any material witnesses so as to prove the negligent act of the respondent. Further it came to hold on the basis of the evidence that the factum of negligence while loading the gun is not at all proved. The report of the ballistic expert was taken into consideration under Section 294 Cr.P.C. (Ex. P/11) in which it has been mentioned that the action mechanism was in working condition and if the barrel is fallen or by hit the gun, shot could be fired. Further it was opined that the safety pin would also come into play on account of receiving any jerk. By placing reliance upon the ballistic expert report the contention which has been placed by learned counsel for the State and complainant that the doctrine of res ipsa loquitur will come into play cannot be accepted because in a perpendicular posture by keeping the barrel to 90 degrees, the gun cannot be loaded because as soon as in that posture it would be loaded the cartridge will fell down on the ground. Thus unless and until the barrel of the gun is kept parallel to the ground or the barrel is pointed towards the ground, the cartridges cannot be loaded.
11. It has come in the testimony of the witnesses that the accused was about to go to Ghansour by taking cash by 6 Cr.A. No.1366/03 accompanying the relevant employee who was to carry the cash along with the accused and at that juncture he loaded the gun. Hence, according to me, the negligence part is not all proved.
12. I have gone through the reasonings assigned by learned Trail Court and I do not find any illegality or any perversity in it. It is well settled in law that if two views are possible on the same set of evidence, the view of the Court below acquitting the accused should prevail until and unless the finding is perverse. For this additional reason also, I do not find any merit in this appeal.
13. Ex-consequenti, this appeal is hereby dismissed.
(A.K.Shrivastava) Judge rao