Madhya Pradesh High Court
Ramji vs The State Of Madhya Pradesh on 29 August, 2017
Bench: Hemant Gupta, Vijay Kumar Shukla
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HIGH COURT OF MADHYA PRADESH, JABALPUR
CRIMINAL APPEAL NO.48/2006
Ramji @ Gadivan --- Appellant
Versus
State of Madhya Pradesh --- Respondent
CORAM
Hon'ble Shri Justice Hemant Gupta, Chief Justice
Hon'ble Shri Justice Vijay Kumar Shukla, J.
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Whether approved for reporting ? Yes/No
Whether approved for
reporting?
Law laid down
Significant paragraph Nos.
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None for the appellant.
Shri S.D.Mishra, Advocate present in court is appointed as
amicus curiae to assist the Court on behalf of the appellant.
Shri A.P. Singh, Government Advocate, for the respondent
State.
JUDGMENT
(29/08/2017) In the instant appeal, challenge has been made to the conviction and sentence of the appellant for offence 2 punishable under Section 302 of IPC to undergo imprisonment for life.
2. Prosecution case is that complainant Ayodhya Prasad accompanied by his son Ramkumar (deceased), wife and daughter had gone to their relation Gaya Prasad in village Jijora to attend his daughter's marriage. On 17-05-2001, when the marriage ceremony was going on and deceased Ramkumar was serving food, it is alleged that some person had fired gun shot, which pierced in the chest of deceased Ramkumar. The said person fled away from the spot. As a result of gun shot injury, Ramkumar fell down. He was immediately taken to Jhansi Medical College for treatment and during the course of treatment, he died.
3. The report of incident was lodged by Ayodhya Prasad, father of the deceased vide Ex.P-1 in police station Narainaka and initially an offence under section 307 of IPC was registered. However, later offence under section 304 IPC was registered. The appellant was absconding and therefore, the challan was filed under section 299 of the Code of Criminal Procedure. After completion of the investigation, the police filed challan for commission of offence under section 302 of IPC and also under sections 25 3 and 27 of the Arms Act. The learned trial court convicted the appellant under section 302 of IPC but he was acquitted for commission of offence under sections 25 and 27 of the Arms Act.
4. Learned counsel for the appellant submitted that the prosecution could not prove its case beyond doubt, as the father of the victim Ayodhya Prasad, who lodged the report did not mention the name of the accused in the FIR. In the statement recorded by the police under section 161 Cr.PC also, the name of the accused was not disclosed. The incident had taken place in a marriage ceremony and it was not possible for the accused to fled away from the crowd. He also contended that none of the witnesses have disclosed the presence of the appellant at the spot. He was arrested after one month and therefore, the prosecution witnesses are not credited worthy for the conviction. Their statement is also not corroborated with any seizure of the gun as alleged by them. In the FIR, the name of the appellant is not mentioned by his father PW-1 Ayodhya Prasad. The other witnesses PW-2 Kusuma, PW-3 Parvati, PW-4 Pistabai and even the independent witnesses PW-6 Keshav and PW-7 Arti have also not stated about the presence of the appellant at the spot and they have not supported the prosecution case. 4
5. In FIR and the statements of the witnesses recorded by the police under section 161 Cr.PC the name of the appellant was not mentioned. There is no proper explanation by the witnesses in this regard that why the appellant who was known to them was not named in the FIR. The father of the victim PW-1 Ayodhya Prasad in the cross examination states that he had disclosed this fact to the police but he does not know why the police has not recorded the name of the appellant in the FIR and his statement. The other witnesses also could not explain that why the name of the appellant was not mentioned by them in their statements made under Section 161 Cr.PC. PW-2 Kusuma in her deposition before the court stated that the appellant was seen firing to her son . She had also stated that when the appellant was running with katta, an attempt was also made to catch him but he escaped. In her statement Ex.D-3, it is stated that the fire was made in celebration of the marriage. However, she had also not named the appellant in her police statement. Another witness PW-3 Parvati, sister of the victim had also not disclosed the name of the appellant. In her statement also there is no explanation why the name of the appellant was not disclosed in her police statement. Another witness PW-4 Pistabai did not support the prosecution case and she was 5 declared hostile. Witnesses PW-6 Keshav and PW-7 Arti did not support the prosecution case and they were declared hostile.
6. The accused was arrested after a month and the challan was filed in his abscond. Weapon Katta alleged to be used in the offence was not seized. On evaluation of the deposition of the witnesses, it is noted that there is no explanation for not disclosing the name of the appellant in the FIR and the statements when the appellant was known to the family of the deceased and the other witnesses. The prosecution could not explain that when and on what basis the appellant was implicated as an accused in the case. The testimony of PW-1 Ayodhya Prasad and other witnesses is not trust worthy for the conviction of the appellant. Their testimony is also not corroborated by any other witnesses.
7. In view of the aforesaid, we find that the prosecution has failed to establish its case beyond doubt. The benefit of doubt is extended to the appellant. Accordingly, the present appeal is allowed. The order of conviction and sentence is set aside. The appellant be set at liberty forthwith, if not warranted in any other case.
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8. Before parting, we must put on record our unreserved appreciation for the valuable assistance rendered by the learned amicus curiae. The High Court Legal Services Authority shall remit fee of Rs.4000/- (Rs. Four thousand) to the learned counsel assisted this court.
(HEMANT GUPTA) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
hsp.