Pyarelal Alias Pirva Vs. State of Madhya Pradesh - Court Judgment

Excerpt:
- - 12), the charge had entered in one mass like a single bullet making a large irregular wound with scorched and contused edges and followed by the gases of discharge. 1) has clearly deposed during her cross-examination that there is no electricity in her village and that, on the night the murder took place, it was a dark night. therefore, in our opinion, the evidence regarding the recovery of the deshi katta and one blank cartridge, at the instance of the accused pyarelal, does not appear to be very reliable and, so, no reliance can be placed on the aforesaid evidence. p-l), could not be said to be a strong motive for the accused pyarelal to have committed the murder of ragghu (deceased). 10. admittedly, at the time of this incident, it was a dark night and, even for a moment, if it is presumed that the assailant had fired at ragghu (deceasd) from a close range, even then it could not have been possible for ragghu to have correctly identified the assailant, as he was sleeping at the time of the incident and, so, after receiving the gun-shot injury on his abdomen, and, at the time he was shouting in agony, in such circumstances, he could not have correctly identified the assailant and, so, it could be a case of mistaken identity.d.k. jain, j.1. pyarelal alias pirva, son of gorelal kachchi, aged about 28 years, resident of village naiguwan, police station, maharajpur, district chhatarpur, has challenged his conviction and sentence of (i) imprisonment for life under section 302 of i.p.c.; (ii) rigorous imprisonment for one year under section 25(1)(a) of the arms act; and (iii) rigorous imprisonment for two years under section 27 of the arms act (sentences were directed to run concurrently), awarded by the additional sessions judge, chhatarpur, in sessions trial no. 116 of 1985, decided on 20-12-1985.2. in short, the prosecution case is that, on 11-6-1985, at village naiguwan, ragghu son of bhaiyalal kachchi (deceased) was sleeping outside on a cot (khatiya) near the door of laxmana kachhi (p.w. 2). laxmana kachchi (p.w. 2) was also sleeping nearby on his chabutra. at about 10-11 in the night, the sound of firing of the gun was heard and on hearing his sound the villagers awoke ragghu shouted that pirva had shot him and had run away. laxmana (p.w. 2) also shouted to ramesh to run and that pirva had shot ragghu, and, on hearing this shouting janki (p.w. 1) who was the wife of ragghu and who was sleeping inside the house opened the door and came outside and she saw her husband ragghu lying in a pool of blood, and she was shouting that pirva had shot him. a number of villagers had collected and to whom, ragghu had disclosed that he had been shot by pirva. ragghu had been injured by the gun shot in the stomach and was bleeding profusely and, so, a bandage was tied around the stomach. ragghu was, then taken in a bullock-cart to maharajpur hospital, but he expired on the way near the hill of kusma. while being taken to the hospital, ragghu had shouted a number of time that he had been shot by pirva and his children should be cared for. the first information report (ex. p-l) was lodged by janki (p.w. 1) at police station maharajpur on 12-6-1985 at 2.30 a.m.3. dr. dayanand adhikari (p.w. 12), assistant civil surgeon, primary health centre, maharajpur, district chhatarpur, had performed the autopsy on the dead body of ragghu, son of bhaiyalal, resident of village naigaman, police station maharajpur, on 12-6-1985, at about 9.00 a.m., dr. dayanand adhikari (p.w. 12) found one gun shot punctured wound in the left side of abdomen; located 2 c.m. below the mid-point of 12th rib, and 6 c.m. away from the midline of abdomen, 4 c.m. x 3 cm. circular in shape. a loop of intestine (small) was punctured and the left sided spleen was also damaged on account of the injury.according to dr. adhikari (p.w. 12), the charge had entered in one mass like a single bullet making a large irregular wound with scorched and contused edges and followed by the gases of discharge. according to the postmortem report (ex. p-l3), one bullet was found in the abdomen (on the bottom side) between leftsided spleen and loop of intestine. dr. adhikari (p.w. 12) opined that the cause of death was due to animia causing syncope and death as a result of excessive bleeding from intestine and spleen due to gun shot wound. the death of ragghu (deceased) was homicidal in nature according to the opinion of dr. adhikari as per his post-mortem report (ex. p-14).4. during investigation, one 12-bore katta and an empty fired cartridge was recovered from the accused pyarelal alias pirva on his memorandum (ex. p-11). the articles recovered from the accused pirva, along with the clothes seized in the case, were sent to the forensic science laboratory, sagar. after completing the investigation, charge-sheet was put up against the appellant pyarelal alias pirva.the accused-appellant pyarelal alias pirva abjured his guilt before the trial court and prayed for being tried. the defence of the appellant was that he had no quarrel with the deceased ragghu and that, he had not fired on him and that, he was innocent.5. counsel for the appellant has challenged the conviction and sentence, as aforesaid, of the appellant pyarelal alias priva mainly on the grounds that at the time of the incident, it was a dark night and that the deceased was sleeping and, so, it was not possible for him to identify the assailant. laxman (p.w. 2), who was also sleeping near ragghu (deceased), and he had also got up immediately on hearing the sound of fire, but he had not seen any person coming or going or running away from near the place where the deceased ragghu was sleeping at the time of the incident. it was further contended on behalf of the appellant, that the trial court had committed an error in placing reliance on the oral dying declaration made by ragghu to the witnesses although the same was not corroborated by any independent material particulars and without there being any evidence to the effect that the deceased ragghu was in a fit state of mind at the time of making the oral dying declaration about his having been shot by pirva. it was also submitted on behalf of the appellant that the seizure of the country-made pistol from the possession of the appellant, was also not of much importance, because the same suffers from infirmity and illegality. it was further submitted on behalf of the appellant that there was no evidence on record to prove that the pistol (deshi katta) seized from the possession of the appellant, was the same which had been used at the time of the occurrence. there is also no evidnece to prove that the bullet found in the body of the deceased at the time of post-mortem examination, was the same which was fired from the katta seized from the appellant. there was also no sufficient motive for the appellant to commit the murder of deceased ragghu.on the aforesaid grounds, it was submitted that the appeal be allowed and the appellant be acquitted of the charges levelled against him.6. one of the grounds on which the conviction and sentence of the appellant pyarelal alias pirva has been challenged, is that, at the time of the incident, the deceased ragghu was sleeping and that, it was a dark night and, so, it could not have been possible for him to identify the assailant, because laxmana (p.w. 2), who was also sleeping nearby and who had got up immediately on bearing the sound of fire, had also not seen any person coming or going or running away from near the place where the deceased ragghu was sleeping at the time of the incident. there appears to be some force in this contention raised on behalf of the appellant. mst. janki (p.w. 1) has clearly deposed during her cross-examination that there is no electricity in her village and that, on the night the murder took place, it was a dark night. mst. janki has further stated that it was also dark at the place where her husband was sleeping mst. janki has also stated that laxmana kachchi and one chinta were also sleeping nearby to the place where her husband was sleeping. laxmana (p.w. 2) also corroborates the version of mst. janki (p.w. 1) that he was sleeping on the chabutra about 2-3 feet away from the place where the deceased ragghu was sleeping on a cot. from the version of laxmana (p.w. 2) also it is clear that, on hearing the sound of gun-fire, he had got up and, at that time, it was dark and he had not seen any one coming or going or running away. mst. janki (p.w. 1) has stated during her cross-examination that chinta badhai was also sleeping about 2-4 paces away from her husband, but this chinta badhai has not been examined during the trial by the prosecution. the prosecution has not disputed the fact that, there is no electricity in the village and that, at the time of the incident, it was a dark night. therefore, the question which arises for determination is; whether ragghu (deceased) was able to identify the assailant on a dark night, specially after he was wounded severely, on his receiving the injury on his stomach, as a result of which, his intestine had protruded out and there was much bleeding from the said injury, as is clear from the version of laxmana (p.w. 2).from the version of mst. janki (p.w. 1), it is clear that her husband (deceased ragghu) was in great agony, after he had been fired at, due to the injury received by him. from the version of dr. adhikari (p.w. 12), who had conducted the post-mortem examination, it is clear that, on account of the injury, the small intestine had been perforated by gun-shot wound and that the left spleen had also been damaged. in view of the aforesaid circumstances that it was a dark night and that, after this incident, ragghu (deceased) was in great agony on account of receiving the gun-shot injury on his abdomen on account of which there was profuse bleeding, in such circumstances, it becomes doubtful as to whether ragghu (deceased) could have identified that assailant at the time of the incident. the learned trial court has placed reliance on the medical evidence on record that the gun had been fired from a close range within a few inches, i.e., from a very short distance, and, hence, ragghu had identified the appellant as pirva (accused), and also because, the accused pirva was residing near by and was known to ragghu (deceased) from before. this view taken by the learned trial court does not appear to be the correct view -- keeping in view the fact that it was the dark night and that, ragghu was sleeping at the time of the incident and, after receiving the gun-shot injury, he was in great agony and there was also profuse bleeding from the said injury and, so, in these circumstances, it was rather difficult for ragghu to have identified the assailant.7. from the version of dr. adhikari (p.w. 12), who had conducted the autopsy on the body of ragghu, son of bhaiyalal kachchi, as also from the post-mortem report (ex. p.-14), it is clear that one bullet had been found on the bottom of abdomen between left side of the spleen and loop of the intestine. the clothes found on the person of the deceased and also the bullet found on the body of the deceasd, during the post-mortem examination, had been sent by the doctor in a sealed condition and the same had been seized as per seizure-memo (ex. p-4) on record, which has been duly proved by head-constable vishambhardatt (p.w. 14). further, from the prosecution evidence adduced in the case, it is clear that the bullet found in the body of the deceased ragghu, at the time of the post-mortem examination, and which was seized along with the clothes of the deceased, as per seizure-memo (ex. p-4), was not sent to the ballistic expert, forensic science laboratory, sagar, for examination and testing, to find out whether the said bullet had been fired from the deshi katta (art. a), which had been seized from the possession of the appellant pyarelal alias pirva, as per seizure-memo (ex. p-12) on the basis of the memorandum (ex. p-11) on record.from a perusal of the report of the ballistic expert (ex. p-19) also, it is clear that the bullet which was found in the body of the deceased ragghu and which admittedly had been seized as per seizure-memo (ext. p-4), had not been sent to the ballistic expert, forensic science laboratory, sagar, to obtain his opinion as to whether the said bullet had been fired from the deshi katta (pistol) which had been seized from the possession of the appellant-accused pirva.now, if a bullet is lodged in the body, it must be taken out if death has occurred, and the same must be forwarded to the forensic science laboratory, in a sealed card board pill box containing its discription (with an identity mark on the base of the bullet) in the medical officer's hand writing as it forms inherent evidence of the greatest value, as has been laid down in modi's 'medical jurisprudence and toxicology' (twenty-first edn., page 263). in the instant case, the bullet, which was taken out from the body of the deceased ragghu during the post-mortem examination, was admittedly not sent to the forensic science laboratory, sagar, for examination although it was very necessary for the prosecution to have sent the said bullet for examination to the forensic science laboratory, sagar. the absence of this material evidence casts a great doubt on the prosecution case regarding the fact as to whether the bullet, which was found in the body of the deceased ragghu, at the time of the post-mortem examination was fired from the katta (pistol) which had been seized from the possession of the accused pyarelal, on the basis of his memorandum referred to above.8. as regards the evidence of seizure of the katta and the blank cartridge as per seizure-memo (ex. p-12) on the basis of the memorandum (ex. p-11) of the accused pirva, the same does not appear to inspire much confidence. from the version of station officer biharilal shrivastava (p.w. 15), it appears that the accused pyarelal was arrested on 16-7-1985, and he was questioned by the station officer on 16-7-1985 in the absence of witnesses, but, on that date, he had made no disclosure regarding the katta. further, according to the station officer biharilal shrivastava (p.w. 15), the accused pyarelal was again questioned in the presence of witnesses rameshchandra yadav (p.w. 10) and one ram pyare and, at that time, he had disclosed about the katta being kept hidden in his house and, the memorandum (ex. p-11) was recorded and, thereafter, the witnesses accompanied with this accused pyarelal, had gone to the house of accused --from where the katta and one blank cartridge were seized as per seizure-memo (ex. p-12). there is discrepancy in the version of station officer biharilal shrivastava (p.w. 15) and ramesh chandra yadav (p.w. 10), because, according to version of biharilal shrivastava (p.w. 15), when they had gone to the house of the accused, the house was locked from out side and, then, the wife of the accused had been called from the field, but this fact was denied by rameshchandra yadav (p.w. 10) when he was cross-examined on behalf of the accused in this regard. therefore, in our opinion, the evidence regarding the recovery of the deshi katta and one blank cartridge, at the instance of the accused pyarelal, does not appear to be very reliable and, so, no reliance can be placed on the aforesaid evidence.9. the motive for the murder, as disclosed in the first information report (ex. p-1) lodged by mst. janki (p.w. 1), was that the accused pirva had kept one deoki badhan as his keep, to which the husband of mst. janki objected, and, on account of this, the accused pirva had not been called in the marriage of the daughter of jankibai's kakiya sasur. the aforesaid motive, alleged in the first information report (ex. p-l), could not be said to be a strong motive for the accused pyarelal to have committed the murder of ragghu (deceased).10. admittedly, at the time of this incident, it was a dark night and, even for a moment, if it is presumed that the assailant had fired at ragghu (deceasd) from a close range, even then it could not have been possible for ragghu to have correctly identified the assailant, as he was sleeping at the time of the incident and, so, after receiving the gun-shot injury on his abdomen, and, at the time he was shouting in agony, in such circumstances, he could not have correctly identified the assailant and, so, it could be a case of mistaken identity.besides this, the bullet which was recovered from the body of the deceased ragghu, during the post-mortem examination was not sent for examination to the forensic science laboratory, sagar -- although it was very necessary for the prosecution to have sent the same. the absence of this material evidence also casts a doubt on the prosecution story. in the aforesaid circumstances, the dying declaration or the disclosure made to the villagers and also to mst. janki by deceased ragghu that he had been shot by pirva, would not carry much weight. the appellant pyarelal alias pirva is entitled to get the benefit of doubt in the aforesaid circumstances narrated above. the appeal filed on behalf of the appellant pyarelal alias pirva deserves to be allowed.11. this appeal filed on behalf of the appellant pyarelal alias pirva under section 374(2) of the code of criminal procedure, is allowed. the conviction and sentence of appellant pyarelal alias pirva son of gorelal kachchi resident of village naiguwan, police-station maharajpur, district chhatarpur, i.e., (i) imprisonment for life under section 302 of i.p.c., (ii) rigorous imprisonment for one year under section 25(1)(a) of the arms act and (iii) rigorous imprisonment for two years under section 27 of the arms act (sentences were directed to run concurrently), awarded by the additional sessions judge, chhatarpur, in sessions trial no. 116 of 1985, vide judgment dated 20-12-1985, is set aside. the appellant pyarelal alias pirva shall stand acquitted of the aforesaid charges. the appellant pyarelal alias pirva shall be set at liberty forthwith unless wanted in any other case.