Full Judgment
1 Cr.A.No.80/2007 HIGH COURT OF MADHYA PRADESH:JABALPUR SINGLE BENCH PRESENT: HON'BLE SHRI JUSTICE RAKESH SAKSENA CRIMINAL APPEAL No.80/2007 Neta alias Rajendra,S/o Vishal Dwivedi aged about 23 years, R/o Gram Manuriya, P.S. Chandla, District Chhatarpur (M.P.) .........Appellant Versus State of Madhya Pradesh through P.S. Chandla, District Chhatarpur (M.P.) ......Respondent -------------------------------------------------------------------------------------------------- For the appellant: Shri Mahendra Pateriya, Advocate. For the respondent: Shri Amit Pandey, Panel Lawyer. -------------------------------------------------------------------------------------------------- ******* JUDGMENT
(20.06.2013) Appellant has filed this appeal against the judgment dated 28th November, 2006 passed by Sessions Judge, Chhatarpur in Sessions Trial No.114/2005 convicting him under section 307 of the Indian Penal Code and section 25(1B)(a) and 27 of the Arms Act and sentencing him to rigorous imprisonment for 10 years with fine of Rs.500/- and rigorous imprisonment for 1 year with fine of Rs.200/- on each count, respectively.
2. In short, the facts of the case are that in the night of 2 Cr.A.No.80/2007 9.2.2005, complainant Maharaj Singh went to take medicine from the shop of Pappu alias Indrakumar for the ailment of his brother Raghuveer Singh. His nephew Komal Singh also reached at the shop of Pappu. Accused Neta @ Rajendra and Ramashankar were also present at the shop. Neta remonstrated him for having abused him 15 days ago. An altercation ensued whereupon accused Ramashankar exhorted Neta to kill complainant. When Maharaj Singh tried to go out from the shop, Neta fired country made 315 bore Katta on his back. The bullet entered in his back and went out through and through from the interior side of his abdomen. When he fell down his brother and nephew picked him up and carried him to his house. After sometime they carried injured Maharaj Singh in a tractor to police Station Chandla where Maharaj Singh lodged first information report Ex.P/1 whereupon a case under section 307/34 I.P.C. was registered against the appellant and co- accused Ramashankar.
3. On 19.2.2005, appellant was arrested and on his information, a 315 bore country made Katta was seized. On the date of occurrence, Investigating Officer seized empty cartridge and other articles from the spot. These articles were sent to Forensic Science Laboratory for examination by Ballistic Expert. 3 Cr.A.No.80/2007 A report Ex.P/16 in that regard was received from the Forensic Science Laboratory.
4. Injuries of Maharaj Singh were examined by Dr.T.C.Sagariya (PW-3) at Primary Health Centre, Chandla. Dr. Sagariya found gun shot entry wound and exit wound on the body of Maharaj Singh. After further and requisite investigation, charge sheet was filed.
5. Learned trial Judge framed charges under section 307 I.P.C. and sections 25/27 of the Arms Act against the appellant. Accused Ramashankar was also charged under section 307/34 I.P.C. However, finding the evidence insufficient against accused Ramashankar learned trial Judge acquitted him of the charges. After appreciating the evidence on record, learned Sessions Judge held the appellant guilty under section 307 and sections 25/27 of the Arms Act and convicted and sentenced him accordingly. Aggrieved by the impugned judgment of conviction and sentence, appellant has filed this appeal.
5. Learned counsel for the appellant has half heartedly challenged the conviction of appellant. However, he submitted that appellant is in jail since 19.2.2005. He has remained in jail for over a period of 8 years and 4 months. In the facts and circumstances of the case his sentence be reduced to the period 4 Cr.A.No.80/2007 of sentence already undergone by him. On the other hand, learned counsel for the State submitted that the judgment of conviction of appellant is based on solid and reliable evidence, therefore, there is no ground for interference in the conviction and sentence awarded to the appellant.
6. The case mainly rests on the evidence of injured Maharaj Singh (PW-1) and his nephew Komal Singh (PW-5), who witnessed the occurrence. Though Pappu @ Indrakumar (PW-9) and Karim Khan (PW-10) are also said to have been present at the scene of occurrence but they expressed their ignorance about the incident, therefore, they were declared hostile.
7. Maharaj Singh (PW-1) categorically stated that in the night at about 8-9:00 p.m. he had gone to take medicine at the hospital of Pappu. Accused persons, Karim Khan and Pappu were also present there. When Ramashankar reached there and asked Neta to fire at him, Neta fired a gun shot on his back. His brother Raghuveer and nephew Komal Singh also reached there. They carried him to his house and also to police station where he lodged first information report Ex.P/1. He was then sent to Primary Health Centre, Chandla for treatment. Though this witness was subjected to a very lengthy cross-examination but nothing substantial could be elicited out. Minot discrepancies 5 Cr.A.No.80/2007 were pointed out by the learned counsel which, in my opinion, did not affect the substratum of the prosecution case. Discrepancies about the fact whether injured had become unconscious or not or whether he ran away from the shop do not affect the reliability of injured witness. He categorically stated that where incident occurred there was light of electric bulb.
8. Evidence of Maharaj Singh (PW-1) finds corroboration from the evidence of Komal Singh (PW-5) who stated that in the night when Raghuveer Singh was vomiting, Maharaj Singh went to fetch medicine from the shop of Dr.Pappu. Accused Neta @ Rajendra fired Katta on the back of his uncle. The bullet passed through and through and came out from the front side. It is true that this witness is nephew of injured, but his evidence is natural, cogent and consistent. There appear no material contradictions in his evidence. Minot inconsistencies about the facts whether injured fell at the door or outside the door does not appear material.
9. Though Raghuveer (PW-2), the brother of injured, reached at the spot immediately after the incident and saw appellant present at the spot, but he clearly admitted that he did not see the incident. He, however, supported the evidence of injured that when he was vomiting in the night, he sent Maharaj 6 Cr.A.No.80/2007 Singh for bringing medicine from the shop of Pappu. He saw Maharaj Singh injured at the shop of Pappu.
10. Evidence of Maharaj Singh (PW-1) cannot be lightly brushed aside since it finds corroboration from the evidence of Komal Singh and Raghuveer and also by the first information report Ex.P/1 lodged by him immediately after the occurrence. Evidence of Maharaj Singh finds further corroboration from the evidence of Dr.T.C.Sagariya (PW-3) who examined his injuries and recorded his statement Ex.D/2 by way of dying declaration. In this statement, Maharaj Singh clearly stated that accused Neta fired at him. Though this statement cannot be accepted as a dying declaration under section 32 of the Evidence Act yet it furnishes corroboration to the evidence of Dr.Sagariya who stated that he recorded Ex.D/2. Dr.Sagariya found following injuries on the body of Maharaj Singh: (i) Entry wound size 1 x 1cm on the left side of the back at lumber region. Margins of the wound were inverted. Wound was oval in shape. There was 14 x 12 cm tattooing with blackening around the wound and the hair around the wound were singed. In his opinion, it was gun shot injury. The fire arm was fired from a distance of about 3 feet. (ii) Exit wound 3 x 2cm on left side of epigastric region. Margins of wound were 7 Cr.A.No.80/2007 everted. Both the aforesaid wounds were caused by firearm. Injury report Ex.P/4 was written and signed by him.
11. Defence of appellant Neta was that since Maharaj Singh had asked for Rs.1 lac from his father for seeking job for his brother Raghuveer, which was not given to him, he got annoyed and falsely implicated him. To support his defence appellant examined Haricharan (DW-1). Haricharan stated that Maharaj Singh's brother Raghuveer Singh demanded Rs.1 lac from the father of appellant for study. Since money was not given, family members of Maharaj Singh entertained grudge against the appellant. This witness also stated that at the time of occurrence he reached the spot but found that it was total dark and nobody knew who fired gun shot at Maharaj Singh. On appreciating the evidence of this witness in the light of evidence of injured Maharaj Singh (PW-1), I find it wholly unreliable.
12. After critical appreciation of the evidence of injured witness Maharaj Singh (PW-1), Komal Singh (PW-5), Raghuveer (PW-2) and the medical evidence, I am of the opinion that prosecution has successfully established that it was appellant who fired gun shot at Maharaj Singh.
13. It is also to be noted that empty cartridge which was 8 Cr.A.No.80/2007 seized from the spot was sent to Ballistic Expert for comparison with the firearm seized from the possession of appellant on 19.2.2005. From the Ballistic Expert report Ex.P/16, it is revealed that the empty cartridge was fired by the Katta seized from the possession of appellant.
14. Though independent witness Santosh (PW-4) did not support the prosecution case about the recovery of country made 315 bore Katta from the possession of appellant but there is no reason to doubt the evidence of Sub Inspector Mohammad Ismyal Khan who categorically stated that he seized Katta from the possession of appellant. He recorded the memorandum Ex.P/5. Seized Katta was sent for examination to Armorer Ramkanth Shukla (PW-7). He deposed that Katta was in working condition. The sanction for the prosecution under the Arms Act was proved by Dashrath Prasad Manjhi (PW-6), a clerk posted in the Legal Branch of Collector Office, Chhatarpur. From the aforesaid evidence, I find it proved that firearm was found in possession of appellant and that appellant had no licence for possessing the same and further that appellant used the firearm for unlawful purpose. In view of the aforesaid evidence, I am of the opinion that learned Sessions Judge committed no error in holding the appellant guilty under section 307 of the Indian 9 Cr.A.No.80/2007 Penal Code as well as under sections 25(1B)(a) and 27 of the Arms Act.
15. Learned counsel for the appellant next submitted that the incident had occurred suddenly when injured reached at the shop of Pappu. He from the first information report Ex.P/1 pointed out that before the incident of firing took place, there occurred some altercation. Since appellant remonstrated Maharaj Singh for having abused him in the past. There was no reason for the appellant to have fired at injured, but after altercation when co-accused exhorted appellant, he fired on the back of injured. Learned counsel submitted that in these circumstances, the sentence of appellant deserved to be reduced, especially when appellant has already served out actual sentence of 8 years and 4 months. At the time of occurrence he was young boy of about 23 years of age. I find substance in the submission made by learned counsel for the appellant. In the circumstances of the case, in my opinion, the sentence of 8 years under section 307 of the Indian Penal Code would meet the ends of justice.
16. Accordingly, the conviction of appellant under section 307 of the Indian Penal Code and sections 25(1B)(a) and 27 of the Arms Act is affirmed. The sentence of appellant under 10 Cr.A.No.80/2007 section 307 of the Indian Penal Code is however reduced from rigorous imprisonment for 10 years to the period of sentence already undergone by him. Sentence awarded to appellant under sections 25(1B)(a) and 27 of the Arms Act is affirmed. Both the sentences shall run concurrent. Appellant be released forthwith if not required in any other case.
17. Appeal partly allowed. (RAKESH SAKSENA) JUDGE b