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CASE NO.: Appeal (crl.)  1269 of 2002

PETITIONER: Munna @ Surendra Kumar                           

RESPONDENT: State of M.P.                                            

DATE OF JUDGMENT: 16/09/2003

BENCH: N.Santosh Hegde & B.P.Singh.

JUDGMENT: J U D G M E N T

SANTOSH HEGDE,J.

       This appeal against the judgment and conviction made by  the High Court of Madhya Pradesh, Gwalior Bench in criminal  appeal (Case No.270 of 1986) is filed by the 4th accused before  the trial court who was 4th appellant before the High Court who  has been convicted by the High Court by reversing the  judgment of the trial court for offences punishable under  Sections 302, 307, and 324 IPC and was sentenced to undergo  imprisonment for life under the principal Section 302 IPC and  other varying sentences for other lesser offences. Brief facts  necessary for the disposal of this appeal are :  

Original accused A-1 Premnarayan and his supporters  which included the appellant herein were angered by the fact  that Harsewak PW-12 was allowing their enemies Bharta Gawli  and Moharman to sit at his doorsteps, therefore, said  Premnarayan complained to Dilip Singh PW-3 to prevent PW-2  from allowing those two persons from sitting at his doorsteps. It  is stated that on 7.6.1983 at about 8 p.m. in the village Gata of  which the complainant, accused and other witnesses were  residents, the appellant herein brought out his 12 bore gun to  settle his disputes with PW-12 and without heeding to the  request of PW-3 to allow him to settle the dispute, the appellant  started firing indiscriminately, consequent to which one  Raghuvar son of Naktu died and Ms. Mithilesh PW-5 and  Parasram PW-6 were injured. According to prosecution, PWs.3,  4, 5, 6, 12 and 18 witnessed the incident in question. It is the  further case of the prosecution that Puttu Singh Yadav PW-19  who was then SHO of Mehgaon Police Station, on coming to  know of the said incident, came with his Police force to Gata  village. He found on the way PWs.5 and 6 injured witnesses  being taken to the hospital in a bullock-cart hence he directed  Kundan Singh PW-8, Police Constable to accompany them to  the Police Station and came to the place of incident and on an  information given by PW-3 recorded Ex. D/4 Dehati Nalishi  and sent the same with PW-14 another Constable to the Police  Station where a crime was registered on the basis of said  complaint. On completion of investigation a chargesheet under  Sections 302, 109, 307/109, 324, 324 read with 109 IPC was  submitted against four accused persons including the appellant  herein which came to be tried by the 1st Additional Sessions  Judge, Bhind, M.P. Before the trial court the prosecution relied  upon the evidence of PWs.3 to 6, 11, 12 and 18 who according  to the prosecution, were the eye witnesses to the incident in  question apart from other official witnesses. During the trial,  PWs.5 and 11 did not support the prosecution case. While

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PWs.3, 4, 6, 12 and 18 supported the prosecution case. The  defence had taken a specific plea before the trial court that there  were two factions in the village who were opposed to each  other and consequent upon a certain misunderstanding, there  was a fight between the two factions which included the  complainant and others on one side and the accused and others  on the other. In the said fight, the complainant party resorted to  shooting by fire-arms indiscriminately consequent to which  many people got injured and the victim Raghuvar died, PWs.5  and 11 got injured apart from the injuries suffered by the  accused themselves. They also contended that they had filed a  cross complaint against the members of the complainant party.  The trial court disbelieving the prosecution case acquitted all  the accused primarily on the ground that the evidence of eye  witnesses being full of contradictions cannot be relied upon  even though they were injured witnesses and so far as PWs.6,  12 and 18 are concerned, they were absconding for nearly 2  months and their statements were recorded only after they  became available to the investigating agency, hence it was not  safe to rely on their evidence and the incident as projected by  the prosecution could not have taken place. Therefore, giving  benefit of doubt, it acquitted the accused persons.

State of M.P. preferred an appeal before the High Court  which as stated above, came to be allowed as against the  appellant herein while the High Court agreed with the trial court  that the prosecution did not establish the case as against the  other 3 accused persons out of whom Premnarayan A-1 had  died during the proceedings. The High Court having come to  the conclusion that the approach of the trial court in  appreciating the prosecution case was not proper, it re- appreciated the evidence and for reasons recorded therein, came  to the conclusion that the finding of the trial court was perverse  and arbitrary so far as it pertained to the appellant, hence,  allowing the appeal in part, convicted the appellant, as stated  above. Dr. T.N. Singh, learned senior counsel appearing for the  appellant, relying on a number of judgments of this Court,  contended that the High Court was not justified in interfering  with the well-considered judgment of the trial court merely  because another view was possible on the very same set of  facts. He further contended even the view taken by the High  Court on the material on record was not possible to be arrived  at because of various omissions, contradictions and  improvements in the evidence of the prosecution. However, he  conceded that for sufficient and compelling reasons and for  good, sufficient and cogent grounds, the High Court can  interfere with the findings of fact of the courts below but such  reasons according to the learned counsel did not exist in the  present case. He also contended that from the sketch plan  produced by the prosecution itself, it is clear that the case put  forth by the prosecution cannot be accepted i.e. the appellant  could not have caused such injuries to the deceased and the  injured eye witnesses standing on the Baithka of Premnarayan’s  house because of the distance involved. He also contended from  the evidence of the doctor who treated the injured witnesses  PW-4 and others, it is clear that they had suffered gun-shot  injuries which had showed signs of blackening at the place of  pellet injuries which can be caused only by using the gun very  close to the body of the person injured. In the instant case, since  the prosecution itself has alleged that the indiscriminate  shooting by the appellant was done by the appellant standing on  the Baithka of Premnarayan’s house, such injuries with  blackening could not have been caused by the appellant i.e.  assuming he did use the fire-arm in the incident in question.

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Learned counsel also pointed out that the prosecution has  pleaded the recovery of a 12 bore gun which was examined by  the ballistic expert but the same was not recovered in a manner  known to law inasmuch as the prosecution has neither produced  any witness to prove the said recovery nor such recovery was  made by drawing any Panchnama therefore, the recovery of this  gun has remained a mystery which should also go against the  genuineness of the prosecution case. He relied upon a number  of judgments of this Court in regard to the principles applicable  to the appreciation of evidence of eye witnesses where such  evidence consists of contradictions, omissions and  improvements. It was also the argument of learned counsel that  in such cases the benefit of doubt ought to have gone to the  accused, therefore, the judgment of the High Court is  unsustainable.  Mr. Sidharth Dave, learned counsel for the respondent,  supported the judgment of the High Court and pointed out from  the material on record that the entire shooting by the appellant  did not take place only from the Baithka of Premnarayan but  the appellant had followed PW-3 into the lane and continued to  shoot from there consequent to which pellets hit the deceased  and he died in the street. In that process, the accused had gone  very close to PWs.5 and 6 who got injured by the spray of   pellets from the gun of the appellant, therefore, the argument of  blackening of the wound will have no force. He also contended  that the presence of  blackening around the gun-shot wound  does not always indicate the proximity of the weapon to the  wound. In support of his contention, he relied upon a judgment  of this Court in Mohan Singh & Anr. v. State of M.P. (1999 2  SCC 428). Commenting on the argument of learned counsel for  the appellant that there is some mystery in regard to the  recovery of a gun, he submitted that though in the judgment it  has come that a gun was recovered from the appellant, the  prosecution has never relied upon this as a part of its case,  therefore, the trial court instead of drawing an adverse inference  ought to have rejected this fact which came only in the nature of  argument addressed by the learned counsel.

Before the courts below, the defence has questioned the  admissibility of Ex. D/4 Dehati Nalishi on the ground that the  same is hit by Section 162 Cr.P.C. because the I.O. already had  received information by way of a complaint, therefore, a  subsequent statement got recorded by PW-3 would only be a  statement recorded in the course of investigation hence, was  inadmissible. The trial court had accepted this argument but the  High Court rejected the same. Learned counsel for the  appellant, in our opinion, very fairly submitted that he is not  going into that question, on the contrary, he would proceed on  the basis that Ex. D-4 was the complaint and tried to point out  certain discrepancies and improvements in the oral evidence  based on the said statement Ex. D-4.  In the instant case, the judgment impugned being a  judgment of reversal, we have gone through the evidence led by  the prosecution to satisfy ourselves whether there was any  justification for the High Court to have interfered with the  finding of the trial court. In that process, we have noticed that  the High Court has discussed all the findings given by the trial  court with reference to the evidence relied upon by the  prosecution and found the finding of the trial court to be  perverse and arbitrary arrived at by misreading of the evidence.  If this finding of the High Court is correct then the High Court  is definitely justified in reversing the finding of the trial court.  The High Court in that process came to the conclusion that the  trial court has given undue importance to minor discrepancies  and ignored the basic features of the case. While so holding the

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High Court disagreed with the trial court that the entire  shooting took place from the Baithka of either Premnarayan’s  house or Vidya Ram’s house. It accepted the evidence of PW-3  that after he tried to persuade the appellant not to resort to  violence he move towards the Baithka of PW-12 and the  deceased started following him on the road and started firing  indiscriminately. At that point of time the deceased, witnesses  and others who were sitting in the Baithka of PW-12, started  running away to cover themselves and in that process the  deceased Raghuvar suffered an injury in his chest and died on  the road. It was during this melee PW-5 an innocent pedestrians  suffered injuries and fell down and PW-6 who was also  scurrying for cover, also suffered injuries. We are in agreement  with this finding of the High Court because it is clear from the  evidence of PW-3 that the appellant had come down from the  Baithka of Premnarayan or Vidya Ram as the case may be, onto  the road and proceeded towards the Baithka of PW-12. In that  process he not only came to the road level but also came within  the proximity of the injured witnesses. This fact, if accepted,  decimates the two arguments addressed on behalf of the  appellant; one regarding blackening of wounds at the entry  point and the other in regard to the trajectory of the pellet  wound which, according to the learned counsel for the  appellant, had gone straight and not in a downward angle which  would have been the consequence if the appellant was shooting  from the Baithka which was about 5 ft. higher than the road  level. Because there was proximity between the appellant and  PWs 5 and 6 and the appellant being on road level the injury  would not also be in a downward angle. Similarly, having  perused the evidence led by the prosecution through PWs.3, 4  and 6, we are in unison with the High Court that the  discrepancies and accompanying contradictions pointed out by  the learned counsel in their evidence are not of such nature as  would make their evidence incredible. In this context, we may  also notice that PW-5 though treated as hostile witness, has  admitted in her evidence that she suffered the injuries at the  place and time as stated by the prosecution. The only area in which she did not support her previous statement was in regard  to the identity of the assailants. Otherwise, she has supported  the prosecution case. In our opinion, her evidence also  corroborates the evidence of PWs.3, 4 and 6 to the extent of the  taking place of incident as stated by the prosecution. Therefore,  we are of the opinion that the High Court on the facts of this  case was justified in reversing the judgment of the trial court.

Before concluding, we must consider the argument of  learned counsel for the appellant that in the course of judgment  of the trial court, it is noticed that an argument was addressed  on behalf of the appellant that a 12 bore gun was recovered  from the appellant which when sent to the ballistic expert, was  found to have a defective firing pin but the barrel of the gun  showed signs of discharge. Having perused the entire  prosecution evidence, we find though this fact was brought out  in the course of arguments, the prosecution has nowhere based  its case on this fact. It may or may not be true that such a gun  was recovered but since the prosecution has not relied upon this  piece of evidence, the fact that it was not properly recovered,  would not make the prosecution case any weaker; at the most  that piece of evidence would have to be rejected.   Any  argument that in the absence of the recovery of a gun from the  appellant, there could be no conviction, will also have to be  rejected. It may be possible that the learned counsel for the  prosecution out of his over-zealousness might have pointed to  the trial court this fact which certainly is neither a legal  evidence nor the basis of the prosecution case.

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For the reasons stated above, this appeal fails and the  same is hereby dismissed.  + 6 142 1994