Judgment:
HIGH COURT OF MADHYA PRADESH AT JABALPUR Criminal Appeal No.506/2006 Ganga Yadav and another…………………………………………………..………Appellants Versus The State of Madhya Pradesh…………………………………………………...Respondent For the appellants : Shri Vipin Yadav, Advocate. For the respondent: Shri Yogesh Dhande, Government Advocate. ****** Present: HONOURABLE SHRI JUSTICE AJIT SINGH HONOURABLE SHRI JUSTICE B. D. RATHI ****** JUDGMENT
(10.9.2013) The following judgment of the Court was delivered by : Ajit Singh, J.
Appellants Ganga Yadav and Lochan Yadav have been convicted for an offence under section 302 or 302/34 of the Indian Penal Code and sentenced to life imprisonment. They have also been convicted under section 307 of the Indian Penal Code and sentenced to rigorous imprisonment for seven years with fine stipulation and under section 27(1) of the Arms Act, 1959 and sentenced to rigorous imprisonment for three years with fine stipulation. All the sentences have been directed to run concurrently.
2. Victim of the incident was Ramlu Kaachi, aged 25 years.
3. According to the prosecution case, appellants Ganga and Lochan are brothers and belong to village Mohara falling within the jurisdiction of Police Station Jatara, District Tikamgarh. Ramlu also belonged to the same village. In village Mohara there was a party rivalry. Prakash Yadav was a leader of one party whereas Rajaram was leader of the rival party. Ganga, Lochan and Ramlu were followers of Prakash Yadav and had criminal antecedents. They were also wanted in many criminal cases and even had a reward on their 2 heads. On 6.7.2000 Rajaram informed the police that Ganga, Lochan and Ramlu were hiding in the house of Ghasia (P.W.3) which was situated in a field at some distance from village Mohara. Acting upon the information the police party consisting of number of policemen including Junior Sub-Inspector Himanshu Choubey (P.W.4), Assistant Sub-Inspector T. R. Chaudhary (P.W.8) and Head Constable Hari Narayan Shrivastava (P.W.15) armed with firearms rushed to that house and surrounded it. There the police party loudly appealed Ganga, Lochan and Ramlu to surrender themselves but they started firing from inside. The police party, therefore, in retaliation also fired at them. At that point of time the members of police party heard Ganga and Lochan saying that they would kill Ramlu if the firing was not stopped by the police and that they have been trapped in the house by Ramlu. After sometime, Ganga and Lochan surrendered themselves to the police by opening the door and coming out from the house with their weapons. The police party, when went inside the house, found Ramlu lying dead with gunshot injuries in a pool of blood. The police immediately seized a country-made 12 bore single barrel gun and a belt of cartridges from Ganga and also a country-made revolver from Lochan.
4. Dr. H. N. Nayak (P.W.2) and Dr. S. K. Verma conducted the post- mortem examination on the dead body of Ramlu. They, apart from finding one abrasion 1 cm X1cm on the left side of neck, also found two gunshot injuries on the body. One gunshot injury was on the left side of chest directing backward and downward and another gunshot injury was on the left backside of chest over eight intercostal space directing backward upward medial side. The doctors did not find charring around any of the gunshot injury. According to the doctors, cause of death of Ramlu was syncope and asphyxia due to gunshot injuries. Their post-mortem examination report is Ex.P2. The police, during investigation, also seized empty cartridges and a firearm which were lying inside the house of Ghasia.
5. Ganga and Lochan took the plea in their defence that they were innocent and had been falsely implicated. According to them, Ramlu died in the house because of police firing but they were made scapegoats for his death. 3 6. The trial court, mainly relying upon the evidence of Himanshu Choubey, T. R. Chaudhary, Hari Narayan Shrivastava and Investigating Officer S. Panweliwala (P.W.10), convicted and sentenced the appellants as aforesaid. The trial court also believed the evidence of Dr. H. N. Nayak and his post- mortem examination report.
7. The first question which calls for our determination is whether the appellants had shot dead Ramlu in the house or he died due to police firing. Admittedly, Ramlu died due to gunshot injuries caused to him inside the house. There is, thus, no eyewitness to say with certainty as to who caused the gunshot injuries to Ramlu. As already stated above, the house in which the firing took place, belonged to Ghasia who is a small farmer. The house was also situated in a field. According to the post-mortem examination report, no charring around any of the two gunshot injuries was found. Thus, it is difficult to believe the prosecution case that the appellants had caught hold of Ramlu and then shot him dead with their firearms. On the contrary, the possibility of the death of Ramlu due to gunshot injuries caused to him by police firing cannot be ruled out. Himanshu Choubey and Hari Narayan Shrivastava, who were members of the police party, have categorically admitted in their evidence that after the appellants started firing at the police, the police in retaliation had also fired at them. No evidence has been adduced by the prosecution to show that the gunshot injuries found on the body of Ramlu could not have been caused by police firing. Also, it appears that initially the appellants did not take the appeal of police party to surrender seriously and it was only when their colleague Ramlu died due to police firing, they became wise and decided to surrender instead of getting killed in police firing. In the fact situation of the case, we are unable to believe the evidence of Himanshu Choubey and Hari Narayan Shrivastava that either they or any member of the police party could have possibly heard the appellants whispering inside the house that they would kill Ramlu. Having regard to the totality of evidence brought on record, it cannot be held that prosecution has succeeded in proving its case beyond all doubts that the appellants alone had shot dead Ramlu. We accordingly set aside their conviction and sentence under section 302 or 302/34 of the Indian Penal Code and acquit them of the charge. 4 8. The learned counsel for appellants has however not assailed the finding of the trial court that the appellants had fired at the police party by illegally using arms and ammunition. We are also of the view that the finding of the trial court in this regard is well-founded and fully proved. We accordingly confirm the finding of the trial court that appellants had fired at the police party by illegally using arms and ammunition. We, therefore, maintain their conviction under section 307 of the Indian Penal Code and section 27(1) of the Arms Act.
9. But the learned counsel for appellants has argued that since no member of the police party had received any injuries in the incident, the sentence of seven years rigorous imprisonment imposed by the trial court to the appellants is too harsh. We find substance in the submission. Admittedly, no injury was caused to any member of the police party in the incident. We, therefore, modify the sentence of seven years rigorous imprisonment imposed to the appellants under section 307 of the Indian Penal Code and reduce it to the period of three years rigorous imprisonment. Their sentence of fine is, however, affirmed. And as the sentence under section 27(1) of the Arms Act imposed by the trial court to the appellants is minimum provided, it is maintained.
10. With the above modification, the appeal is partly allowed. (AJIT SINGH) (B. D. RATHI) JUDGE JUDGE ps