Girraj Ghuraiya vs State Of M.P.
2021 Latest Caselaw 6332 MP

     1                                     Criminal Appeal No.269/2009

                 THE HIGH COURT OF MADHYA PRADESH

                          BENCH AT GWALIOR

                            DIVISION BENCH

             ( Hon'ble Shri Justice G.S.Ahluwalia &
           Hon'ble Shri Justice Deepak Kumar Agarwal)
                        Criminal Appeal No.269/2009
                            Girraj Ghuraiya
                                   Vs.
                              State of M.P.
--------------------------------------------------------------------------------
         Shri R.K.Sharma, learned senior counsel with Shri
V.K.Agrawal, counsel for the appellant.
         Shri    C.P.Singh,      learned     Panel      Lawyer       for    the
respondent/State.
         Shri S.K.Shrivastava, learned counsel for the complainant.
--------------------------------------------------------------------------------

                              ***********
                            JUDGMENT

[Passed on this 4th day of October, 2021]

Per Justice Deepak Kumar Agarwal

This appeal has been filed by the appellant against the

judgment of conviction and order of sentence dated 9 th April, 2009

passed by the Court of Sessions Judge, Gwalior, in

S.T.No.342/2007 convicting the appellant under Sections 302/34

for committing murder of deceased Brijendra Singh, 307 and 450

of IPC for attempting to commit murder of complainant Sanjay 2 Criminal Appeal No.269/2009

Mangal by trespassing in his shop and sentencing him to suffer life

imprisonment with fine of Rs.1,000/-, five years R.I. with fine of

Rs.1,000/- and five years R.I. with fine of Rs.1,000/- respectively

with default stipulation.

2. The case of the prosecution in short is that on the date of

incident i.e. 12.1.2007 at 7 pm complainant Sanjay Mangal along

with his nephew Sharad Mangal, Kushal Mangal and other staff was

sitting in his shop - Firm Kalicharan Durga Prasad Saraf, at Sadar

Bazar, Morar and Guards Brijendra Singh and Chandan Singh were

outside the shop performing their duties, at that juncture,

appellant/accused Girraj Ghuraiya along with his accomplice came

and accomplice of the appellant fired from Katta on Guard

Brijendra Singh and appellant Girraj by entering the shop fired on

the complainant with intention to kill him, but complainant bowed

down and as a result, the shot hit at the showcase. Gunpowder and

pellets hit at right side of his cheek and elbow of right hand. The

complainant cried for help, but as the accomplice of the appellant

was present outside with Katta, therefore, nobody came to save him.

Thereafter, complainant along with members of staff tried to caught

hold of appellant, but appellant and his accomplice by showing

Katta ran away towards Chik Santar. The complainant thereafter

noticed that Guard Brijendra Singh after sustaining gunshot fell 3 Criminal Appeal No.269/2009

down and appeared to be in serious condition. His 12 bore gun was

on his shoulder. It is the case of the prosecution that appellant Girraj

Ghuraiya along with his accomplices on 24.7.2002 had committed

murder of elder brother of complainant, namely Vishnu Mangal, and

in the said case appellant Girraj Ghuraiya, Ballu Gurjar, Sonu and

Raju Kankar were convicted by the Sessions Court. During appeal,

appellant Girraj and Raju were released on bail. The complainant

further alleged in the FIR that with intention to kill, appellant Girraj

Ghuraiya along with his accomplice has fired on him and committed

murder of Guard Brijedndra Singh. Before the incident, appellant

used to threaten him on telephone and the report of which has been

lodged at police Station Kotwali and Morar. Guard Brijendra Singh

was taken to hospital, but he died on the way. On his report, crime

under Sections 302, 307, 34 of IPC and Sections 25/27 of the Arms

Act bearing Crime No.30/2007 was registered at police Station,

Morar, Distt. Gwalior, against appellant Girjraj and one unknown

person.

3. Autopsy of Guard Brijendra Singh was performed. As per the

autopsy report, he died due to shock and haemorrhage as a result of

firearm injury within 6 to 24 hours since postmortem. Gunshot was

fired with close range. During investigation, from the spot one

loaded Katta of 315 bore, one missed cartridge of 315 bore, one live 4 Criminal Appeal No.269/2009

cartridge of 315 bore, one empty cartridge of 315 bore, one live

cartridge of 12 bore, one bullet of 315 bore, one belt, one cap, plain

and blood stained soil along with glass pieces of showcase were

seized by ASI P.S.Tomar. Injured Sanjay Mangal was sent for

medical examination and as per his MLC (Ex.P/13) multiple

wounds over right side of face and forearm were found and he was

referred for expert opinion to CMO. Statements of the witnesses

were recorded by the police. On 21.7.2007 appellant/accused Girraj

was arrested. His accomplice Ravi Sikarwar died during an

encounter at Pahadgarh, Distt. Morena. After completion of

investigation, charge-sheet has been filed against the appellant

under the aforesaid sections and case was committed to the Court of

Sessions where accused abjured his guilt and pleaded for trial.

4. The prosecution examined as many as 14 witnesses to prove

its case and appellant in his defence examined one witness, namely

Bitu Yadav (DW-1). The trial Court after appreciating the evidence

came on record, convicted the appellant as aforesaid.

5. Learned counsel for the appellant submits that appellant is

innocent and has been falsely implicated in the case. It is submitted

that real story is that when deceased Guard Brijendra Singh fired on

complainant Sanjay Mangal, another Guard Chandan Singh shot

him dead, and therefore, he was not found after the incident as 5 Criminal Appeal No.269/2009

admitted by ASI P.S. Tomar (PW-7) in para 4 of his statement. It is

further submitted that during evidence non-examination of Guard

Chandan Singh and non-seizure of gun of deceased Brijendra Singh

supports the story of defence that due to previous enmity appellant

has been falsely implicated in the case. Learned counsel for the

appellant further submits that statements of only related witnesses

have been recorded before the trial Court and they due to previous

enmity stated against the appellant. It is further submitted that there

are various discrepancies in the statements of eye-witnesses.

6. Learned counsel for the State as well as learned counsel for

the complainant supported the impugned judgment.

7. Heard learned counsel for the parties and perused the record.

8. In the present case, complainant/injured Sanjay Mangal (PW-

1), Chimmanlal (PW-2) and Kushal Mangal (PW-8) have been

examined as eye-witnesses by the prosecution. Now we shall

examine the evidence of these witnesses one by one.

9. Complainant/injured Sanjay Mangal (PW-1) in his

examination-in-chief has stated that he knows appellant Girraj

Ghuraiya. On 12th January, 2007 at about 7 pm when complainant

was sitting in his shop - Kalicharan Durgaprasad Sarraf along with

his nephews Sharad Mangal, Kushal Mangal and staff and Guards

Brijendra Singh and Chandan Singh were sitting outside, he 6 Criminal Appeal No.269/2009

(appellant) along with his accomplice came and his accomplice

straightway fired from Katta on Guard Brijendrasingh and appellant

Girraj by entering in his shop fired on the complainant, but he

bowed down and as a result of which gunshot hit at the showcase.

Gunpowder and pellets hit at the right side of his cheek and elbow

of hand. The complainant cried for help, but as the accomplice of

the appellant was present outside with Katta, therefore, nobody

came to save him. Thereafter, complainant along with members of

staff tried to caught hold of appellant, but appellant and his

accomplice by showing Katta ran away towards Chik Santar. He

thereafter came out from the shop and found that Guard Brijendra

Singh is lying down and blood is oozing out from his body. He

along with his staff and one Constable took him to Madav

Dispensary, where doctors declared him dead.

10. The complainant Sanjay Mangal (PW-1) in his deposition

further stated that before five years and six months of recording of

his evidence, appellant along with his accomplices had committed

murder of his elder brother Vishnu Mangal by firing on him. In that

case, appellant and others Sonu, Raju Kankar and Ballu Ghuraiya

were sentenced for life imprisonment. After releasing on bail,

appellant used to threaten him and his family members to kill them

of which he time to time lodged the report at police Station, Kotwali 7 Criminal Appeal No.269/2009

and Morar.

11. The complainant (PW-1) has stated that he lodged the report

of the incident at police Station, Morar, as Ex.P/2. Police came on

the spot and prepared spot map (Ex.P/3) and from the spot one

Katta of 315 bore in which one missed cartridge was stuck, one live

cartridge of 315 bore, one empty cartridge of 315 bore, one empty

cartridge of 12 bore, one fired bullet, one cap, metal part of belt

(Bakkal), plain and blood stained soil were seized. At that time, his

cashier Chimanlal was also present. Police after recording his

statement, sent him to Morar Hospital for medical examination.

After examination at Morar Hospital, he was referred to Madhav

Dispensary.

12. During cross-examination, the complainant (PW-1) has stated

that area of his shop is 8 x 6 sq. ft. At the time of incident, 3-4

servants are working in the shop. Chimmanlal was not present on

the spot at the time of incident and he had gone before five minutes

of the incident. Security Guard Brijendra Singh came for the first

time on the date of incident. At the time of incident, Guard Chandan

Singh was not having any weapon, but deceased Brijendra Singh

was having a gun and they were standing outside the shop. He did

not know as to whether the person who fired on Guard Brjendra

Singh was keeping any enmity with him or not. The accomplice of 8 Criminal Appeal No.269/2009

the appellant straightway fired on Guard Brijendra Singh without

any dispute and at that time he was having his gun on his shoulder.

Due to receiving gunshot injury, Guard Brijendra Singh fell down.

It is further stated by him in his cross-examination that when Guard

Brijendra Singh was taken to hospital, he was not having his gun.

He did not know as to where his gun was at that time. He explained

that at that time saving his life was more important, therefore, he

immediately took him to the hospital. After returning from the

police Station, he did not pay any heed as to whether gun was there

or not. He is not in a position to say as to where the gun has gone,

but he specifically denied that due to firing by another Guard

Chandan Singh, deceased received gunshot injury. In his shop, there

is no glass window or door and only shutter is there. On seeing

appellant Girraj, neither he nor any member of his staff tried to

close the shutter. At the time of making fire, distance between him

and appellant was one and half ft. The gunshot hit at the showcase

at the height of four or four and half ft. He denied that he did not

receive any injury by firearm. Between Chik Santar and his shop,

there are 12 shops. Nobody from the staff and his family chased the

appellant and his accomplice and only he followed them. In para 10

of his cross-examination, he stated that when he had gone along

with the deceased to Madhav Dispensary, he did not tell the doctors 9 Criminal Appeal No.269/2009

about his injuries. He took the deceased in a auto along with one

Constable whose name he did not know. He further stated that he

did not divulge to the persons assembled at the spot as to how the

incident had happened. He denied that afterwords in consultation

with his brother they concocted a false story. Baradari Chauraha is

at the distance of 0.5 kms and police Station Morar is at the distance

of 1 kms from his shop. He admitted that at that time he was having

one mobile as well as landline telephone in his shop, but he did not

give information to the police through these devices. In this respect,

he explained that at that time his focus was on saving the life of

Guard Brijendra Singh, and therefore, in a hurry he took him to the

hospital. Before reaching the hospital, he did not inform the police.

He came to police Station from the hospital in a auto. He further

stated that he did not take Guard Brijendra inside the hospital and

doctor examined him in the auto and declared him dead. The entire

incident was happened in just 5-7 minutes. He denied that no

incident took place, no seizure was made from the spot and due to

previous enmity he lodged a false report against the appellant.

During cross-examination, defence could not took out any material

discrepancy or contradiction from his statement on the basis of

which his evidence could be disbelieved or discarded. Beside that,

his evidence is well supported by promptly lodged FIR (Ex.P/2), 10 Criminal Appeal No.269/2009

dead-body inquest of deceased and his postmortem report.

13. By supporting the prosecution case, employee of complainant

Chimmanlal (PW-2) has stated that he is working as Accountant in

the shop of complainant. He also knows the appellant/accused

Girraj Ghuraiya. On the date of incident i.e. 12.1.2007 at 7 pm he

had gone from the shop near Girraj Mandir for eating Pudiya, at

that time he saw appellant Girraj along with his accomplice Ravi

Sikarwar going towards shop of complainant. Accomplice of Ravi

Sikarwar fired at Guard Brijendra Singh Bhadauria who was sitting

outside the shop of the complainant and Guard Brijendra Singh

Bhadauria fell down on receiving gunshot injury. Afterwards

appellant entered the shop of complainant and fired at him from

country-made pistol, but complainant bowed down, due to which

gunshot hit at the showcase of the shop and complainant received

injury at his cheek by some pellets. Thereafter appellant loaded his

country-made pistol with another round, at that time complainant

and his nephew tried to caught hold of appellant and in that scuffle,

country-made pistol which was in the hand of appellant, fell down.

Outside the shop, accomplice of the appellant was standing with

country-made pistol and due to his fear, nobody could enter the

shop. After country-made pistol of the appellant was dropped,

appellant and his accomplice showing country-made pistol ran away 11 Criminal Appeal No.269/2009

towards Chik Santar. Complainant tried to catch the appellant and

his accomplice, but after some distance he came back. Meanwhile,

one police person came on the spot. Complainant along with that

police person took the deceased Brijendra to hospital and at that

time another guard Chandan was there who was also called as

Chokhelal. After one hour, police came on the spot and seized one

315 bore Katta in which one cartridge was there, one live cartridge

of 315 bore, one empty cartridge, one live cartridge of 12 bore, one

red cap and one belt along with ordinary soil and blood stained soil,

glass pieces of showcase and one tray by Ex.P/4.

14. During cross-examination, Chimmanlal (PW-2) stated that

complainant belongs to Mangal family and families' one shop is at

Sadar Bazar, Morar, and one at Sarafa Bazar. He was working at

Morar shop. Distance between both the shops is 10 kms. He has

been working as Accountant for the last fifteen years. He admitted

that he was a witness in the murder case of Vishnu Mangal who was

elder brother of complainant. He disclosed that at the time of

recording of his police statement he informed that at the time of

incident he went to eat Pudiya and if this fact is not mentioned in

his police statement (Ex.D/2) he could give any reason. He denied

that at the time of incident he was not working in the shop of

complainant Sanjay Mangal as Accountant. In his statement to 12 Criminal Appeal No.269/2009

police he narrated that Chandan @ Chokhelal was present on the

spot. He denied that Chandanlal and Chokhelal are different

persons. He saw the incident in front of the shop at the distance of

20-22 ft. He could not get time to inform complainant about coming

of appellant Girraj and his accomplice Ravi. There was difference

of 3-4 minutes between first fire and last fire. Due to fear he could

not cry as Ravi Sikarwar was standing near him with Katta. At the

time of incident, no customer was on the shop. He did not try to

give first aid to deceased Brijendra and injured Sanjay Mangal.

After departure of accused persons, by shouting he told that Girraj

and Ravi have fired on the deceased and injured. At that time, both

the nephews of Sanjay Mangal, namely Sharad and Kushal Mangal

and other servants were present. He had no knowledge as to

whether deceased died on the spot or not, but after 5-7 minutes of

the incident he was taken to hospital in a auto. At the time of giving

statement to the police, he narrated that when appellant was trying

to load another round in the country-made pistol, complainant and

his nephews tried to caught hold of him and during this scuffle, the

said pistol dropped. If this fact is not mentioned in his statement

(Ex.D/2), he cannot say anything. Accomplice of appellant Ravi

Sikarwar fired on the deceased from close range and appellant

Girraj fired on the complainant from the distance of 3 ft. He denied 13 Criminal Appeal No.269/2009

that appellant was not on the spot and he did not fire on the

complainant. He also denied that Ravi Sikarwar did not fire on the

deceased. He also denied that complainant Sanjay rebuked deceased

Brijendra and due to annoyance, he fired on the complainant.

Security Guard Chandan was working for the last one and half

months from the date of incident. He admitted that near the place of

incident Morar District Hospital and 3-4 nursing homes are situated

and police Station, Morar, is at a distance of 0.5 kms from the place

of occurrence. He did not inform the police about the incident. Next

day he did not come to the shop as he had gone to Shivpuri to see

his ailing maternal uncle. The police took his statement after four

days of the incident by coming to the shop as he was out of station

for the last four days. Looking to the examination-in-chief and

cross-examination, it is emerged that this witness, who was

Accountant of the complainant, was present outside the shop at the

time of incident and he saw the whole incident and his evidence

also supports the evidence of complainant Sanjay Mangal (PW-1).

Some minor contradictions and omissions came in his evidence, but

they are of no significance, hence, this Court is of the opinion that

he has fully supported the version of the prosecution.

15. Kushal Mangal, (PW-8), nephew of complainant Sanjay

Mangal who was also present at time of incident in the shop, in his 14 Criminal Appeal No.269/2009

examination-in-chief has stated that on 12 th January, 2007 at about 7

pm when he was in his shop along with his brother Sharad and

uncle Sanjay Mangal and Guard Brijendra Singh Bhadauria was

sitting outside the shop, at that juncture, appellant/accused Girraj

Ghuraiya along with one accomplice came and his accomplice

straightway fired on Guard Brijendra Singh with Katta, as a result

of which Brijendra Singh fell down then and there and appellant

Girraj Ghuraiya entered the shop and with intention to kill his uncle

Sanjay Mangal fired on him with Katta, but his uncle bowed down

in bewilderment and gunshot hit at the showcase. His uncle

received injury in his cheek and elbow. Thereafter, his staff tried to

catch hold of the appellant, but he along with his accomplice ran

away. He further stated that on 24.7.2002 appellant had killed his

father Vishnu Mangal and in the said case he was convicted. On this

count, he is keeping enmity with them and wants to kill his uncle

Sanjay Mangal.

16. This witness (PW-8) has further stated that after the incident

some police personnel came at the spot and one of them along with

his uncle Sanjay Mangal took the deceased and one police

personnel chased the appellant. After some time, he came to know

that Brijendra Singh has died. During cross-examination, he has

stated that he is a student of B.Com first year and studying in SLP 15 Criminal Appeal No.269/2009

College, Morar. After attending the college, he use to come at the

shop. He did not know the appellant before the incident. On the date

of incident, he came to the shop at 2 pm. Neither he tried to cry nor

warned his uncle Sanjay Mangal on seeing weapons in the hands of

accused. He explained that he could not presuppose the incident.

Lakhansingh, Mohansingh and Badesingh tried to catch hold of

appellant and his accomplice and presently they are not available in

his shop as they have left the job. He was also cross-examined at

length, but no material discrepancy has come out so as to dent the

case of the prosecution. His evidence also supports the evidence of

complainant Sanjay Mangal (PW-1) and Chimmanlal (PW-2).

17. Now we shall examine the evidence of rest of important

prosecution witnesses.

18. Dr. J.N.Soni (PW-3) has stated that on 13.1.2007 he was

posted at JA Hospital, Gwalior. Dead-body of deceased

Brijendrasingh son of Mahavir Singh Bhadauria aged 42 years was

brought by Head Constable Ramniwas for autopsy. He along with

Dr. Nikhil Agrawal at 10.15 am started the autopsy of the deceased

and found following injuries:-

"1. An ante-mortem fire arm entry wound present 4 cm above the subcoastal region at right side sized 1.5 cm x 1 cm, obliquely oval, inferoposteriorly of the rib cage, surrounded by abraded margins for 6 mm all around and about 113 cm about the heel at right side at lateral aspect of lower part of rib cage in mid 16 Criminal Appeal No.269/2009

axillary line. A black coloured wad recovered from right inside the wound in peritoneal cavity.

2. A fire arm exit wound situated at left side, just below subcoastal margin, in anterior axillary line, 1 cm in diameter, rounded and about 108 cm above the heel at left side. 2 mm of the margins around the wound abraded all over. A smaller black coloured wad recovered from inside the peritoneal cavity, beneath the exit wound at left side."

Dr. J.K.Soni (PW-3) stated that injury was caused by firearm with

close range. Death was due to shock and haemorrhage as a result of

firearm injury. Duration of death is within 6 to 24 hours from the

postmortem and death was homicidal. During cross-examination, he

admitted that near the entry wound there was no marks of

blackening, tattooing or charring. He admitted that inside the

wound, bullet and pellets were not found. He further admitted that

on the clothes of the deceased also no mark of bullet or pellet was

found. He further admitted that if fire is caused with close range,

then bullet and pellets may remain inside the body or may pass

through the body. He further admitted that police did not send any

bullet for examination. The liver of the deceased was ruptured. As a

result of firearm injury, the deceased may have died within 8-10

minutes of sustaining the injury. On going through the evidence of

this doctor and cross-examination conducted on behalf of the

appellant, it is abundantly clear that deceased Brijendra Singh died

due to gunshot injury and his death was homicidal in nature.

17 Criminal Appeal No.269/2009

19. Lalsingh (PW-4) has stated that in 1999 he was posted as

Arms Moharir. On 29.8.2007 he examined one country-made pistol,

two cartridges, one empty cartridge, one bullet of 315 bore and one

cartridge of 12 bore seized in Crime No.30/2007 registered at police

Station, Morar. After examining, he found that country-made pistol

was made of single barrel and smell of gunpowder was coming

from it. Country-made pistol was of 315 bore and was in running

condition and fire can be made from such pistol. During cross-

examination, he stated that aforesaid arms and ammunition were

brought by Constable Harveer Singh of which he made entry in

Rojnamacha. He admitted that he did not took photograph of firing

pin impression. He denied that no country-made pistol was sent to

him for examination.

20. P.S.Tomar (PW-7) Assistant Sub-Inspector, who conducted

the investigation of the crime, has stated that on the date of incident

at 8.40 pm he reached on the spot and prepared spot map (Ex.P/3)

and from the spot seized one loaded Katta of 315 bore, one missed

cartridge of 315 bore, one live cartridge of 315 bore, one empty

cartridge of 315 bore, one live cartridge of 12 bore, one bullet of

315 bore, one belt, one red cap, plain and blood stained soil along

with glass pieces of showcase and recorded the statement of

complainant Sanjay Mangal. On 13.1.2007 after reaching mortuary 18 Criminal Appeal No.269/2009

he issued Safina form (Ex.P/8), prepared dead-body inquest

(Ex.P/9) and sent the dead-body for postmortem vide Ex.P/10. After

postmortem, he handed over dead-body of deceased Brijendra to his

relative Rambabu Singh vide Ex.P/11. During cross-examination,

he stated that on receiving wireless message of T.I. Yogesh Gupta,

he reached on the spot. Before his reaching, Constable Dileepsingh

already reached there. He met with T.I. on the spot and Chimmanlal

was also there before whom he prepared seizure memo, but neither

he enquired from Chimmanlal nor he told anything about the

incident. Gun of deceased Brijendra Singh was not found on the

spot. Complainant Sanjay Mangal or Chimmanlal did not give any

gun to him. He remained on the spot upto 10 pm. He admitted that

in the spot map he did not mention location of the witnesses and

near the place of incident several shops and houses are situated. He

did not take the statements of nearby shopkeepers as after closing

their shops they had already gone. He denied that he did not seize

Katta and other articles from the spot. He admitted that complainant

Sanjay Mangal (PW-1) did not disclose in the his statement

(Ex.D/1) that one Constable had already come to the spot along

with whom complainant took deceased Brijendrasingh to hospital.

Seized country-made pistol is Article A. During further cross-

examination, he stated that after seizure, Katta was kept in 19 Criminal Appeal No.269/2009

Malkhana and In-charge of Malkhana is Head Moharir. In police

Station a Malkhana register is kept on which entry of deposition and

withdrawal of articles is made. He did not file Challan, and

therefore, he could not say as to whether copy of Malkhana register

has been filed or not. From the evidence of this witness, it is

emerged that he conducted the investigation on the said date of

incident by reaching on the spot and vide Ex.P/4 seized material

from the spot and sent dead-body for postmortem. Though some

minor contradictions have come in his evidence, but they are not of

such importance on which his testimony can be discarded. Hence,

this Court is of the opinion that evidence of this investigation

officer supports the case of the prosecution.

21. By proving the first information report lodged by complainant

Sanjay Mangal, Yogesh Gupta (PW-10), the then SHO of police

Station, Morar, has stated that on the date of incident 12.1.2007

complainant Sanjay Mangal lodged a report orally. On his report, he

registered an FIR bearing crime No.30/2007 under Sections 302,

307, 34 of IPC and Sections 25, 27 of the Arms Act. FIR (Ex.P/2)

was got typed on the computer on the instructions of the

complainant on which his signatures are affixed. He sent the copy

of the FIR to the concerned Court. During cross-examination, he

admitted that on the date of incident before 8 pm he could not get 20 Criminal Appeal No.269/2009

any information on wireless, telephone or through any other source.

He did not remember the name of computer operator who typed the

FIR and he typed the FIR on the instructions of the complainant and

he did not give any dictation to the computer operator. He could not

say as to when copy of the FIR was delivered to the concerned

Court as he did not bring dispatch register and dak book. He denied

that after two days of the incident with the connivance of

complainant Sanjay Mangal, he registered a false report. After

recording of FIR, Sanjay Mangal was sent for medical examination.

He denied that as complainant Sanjay Mangal did not receive any

injury, he was not sent for medical examination. He admitted that in

the FIR complainant has not mentioned that one police personnel

came on the spot and along with him complainant was sent to

Madhav dispensary. Questions put to this witness are of trivial

nature and nothing material came out from his cross-examination on

the basis of which evidence of this police officer can be disbelieved.

Beside this, his evidence is well supported by prompt FIR lodged by

the complainant.

22. Dr. P.K.Garg (PW-11) has stated that on 12.1.2007 he was

posted as Medical Officer in District Hospital, Gwalior. At 10.30

pm complainant Sanjay Mangal was brought before him by

Constable Dileepsingh for medical examination. On examination, 21 Criminal Appeal No.269/2009

he found multiple superficial punctured wounds on the right side of

his face and right forearm and for expert opinion he referred the

complainant to CMO, Madhav Dispensary. His report is Ex.P/13.

During cross-examination, he has stated that he did not find any

pellet in the body. There were no marks of blackening or tattooing

and no gunpowder was found on the body. He admitted that he did

not mention in his report that by which weapon such injury was

caused. He denied that he did not examine the complainant.

23. Rambabu (PW-12) has stated that deceased Brijendra Singh

was his brother-in-law. Before two years of recording of his

statement, somebody called him to police Station, Morar, where he

came to know that Brijendra Singh has died and his body has been

sent for postmortem. He also came to know that Brijendrasingh died

due to gunshot injury. After giving notice (Ex.P/8), Panchayatnama

Lash (Ex.P/9) was prepared and after postmortem, dead-body of

Brijendra Singh was handed over to him vide Ex.P/11.

24. P.P.Mudgal (PW13) has stated that during investigation of

Crime No.30/2007 he arrested appellant Girraj Ghuraiya on

21.7.2007 vide Ex.P/12. He recorded his statement under Section 27

of the Evidence Act as Ex.P/14 in which he stated that his country-

made pistol was dropped on the spot, but at the behest of appellant,

no seizure was made.

22 Criminal Appeal No.269/2009

25. D.V.S.Bhadauria (PW-14), the then SHO of police Station,

Morar, has stated that during investigation of Crime No.30/2007 he

took the statements of the witnesses. During cross-examination, he

admitted that Chimmanlal did not state that earlier he was working

with Vishnu Mangal and after his murder, he is working as

Accountant with Sanjay Mangal. He further admitted that

Chimmanlal also did not disclose that deceased Brijendrasingh

received gunshot injury at left side. He denied that he did not take

the statements of the witnesses as narrated by them.

26. On going through the evidence of the prosecution witnesses,

specially the eye-witnesses, it clearly appears that on the date of

incident and time appellant with an common object to kill the

complainant came along with his accomplice Ravi Sikarwar at the

shop of complainant Sanjay Mangal and in furtherance of that

common object his accomplice Ravi Sikarwar by firing at deceased

Brijendrasingh straightway, cleared the way of appellant and

thereafter appellant by entering the shop fired at the complainant to

kill him, but he bowed down and when the appellant tried to load

his Katta for second round, in a scuffle Katta of appellant dropped

and appellant and his accomplice ran away. Therefore, the

conviction & sentence of the appellant as awarded by the trial Court

under Sections 302/34, 307 and 450 of IPC appears to be based on 23 Criminal Appeal No.269/2009

proper appreciation of evidence available on record and trial Court

has not committed any error in convicting & sentencing the

appellant as aforesaid.

27. So far as defence of the appellant is concerned that another

Guard Chandansingh fired on deceased Brijendra Singh to save

complainant Sanjay Mangal, and therefore, he was not found at the

spot by the police is concerned, prosecution witness Chimmanlal

(PW-2) has clearly stated that Chandansingh and Chokhelal are the

names of one person and police during investigation on 16.1.2007

has taken the statement of Chokhelal who has stated that he was

working in the shop of complainant Sanjay Mangal and on the date

of incident at 7 pm he was standing at the shop of complainant.

During investigation, statements of some independent witnesses

have also been recorded by the police who stated in support of the

case of the prosecution, but for the reasons best known to the

prosecution, they have not been examined before the trial Court.

Beside that, Beetu Yadav (DW-1) examined by the defence in

support of the story that Chandansingh fired on deceased Brijendra

Singh to save complainant Sanjay Mangal, has admitted in his

cross-examination that he did not see the assailants who opened

fire, and therefore, he appears to be a tutored witness.

28. So far as the submission of learned counsel for the appellant 24 Criminal Appeal No.269/2009

that independent witnesses have not been examined in support of

the case of the prosecution, the Apex Court in Karulal v. State of

M.P. , 2020 SCC OnLine SC 818 has held that testimony of related

witnesses, if found to be truthful, can be the basis of conviction.

29. As regards submission of learned counsel for the appellant

that there are various discrepancies in the statements of eye-

witnesses, in the opinion of this Court there are only minor

discrepancies in the statements of eye-witnesses and their evidence

is firm on material aspect. The Apex Court in the case of

Mallikarjun and others vs. State of Karnataka, (2019) 8 SCC

359 has held as under :

"14. Observing that minor discrepancies and inconsistent version do not necessarily demolish the prosecution case if it is otherwise found to be creditworthy, in Bakhshish Singh v. State of Punjab and another, (2013) 12 SCC 187, it was held as under:-

32. In Sunil Kumar Sambhudaya Gupta v. State of Maharashtra, (2010) 13 SCC 657 this Court observed as follows: (SCC p. 671, para 30)

"30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal 25 Criminal Appeal No.269/2009

course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan (2008) 17 SCC 587.)"

33. ....... this Court in Raj Kumar Singh v. State of Rajasthan, (2013) 5 SCC 722 has observed as under: (SCC p. 740, para43)

"43. ... It is a settled legal proposition that, while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence thus provided, in its entirety. The irrelevant details which do not in any way corrode the credibility of a witness, cannot be labelled as omissions or contradictions. Therefore, the courts must be cautious and very particular in their exercise of appreciating evidence. The approach to be adopted is, if the evidence of a witness is read in its entirety, and the same appears to have in it, a ring of truth, then it may become necessary for the court to scrutinise the evidence more particularly, keeping in mind the deficiencies, drawbacks and infirmities pointed out in the said evidence as a whole, and evaluate them separately, to determine whether the same are completely against the nature of the evidence provided by the witnesses, and whether the validity of such evidence is shaken by virtue of such evaluation, rendering it unworthy of belief."

(Emphasis supplied)

30. It is true that during investigation gun of deceased

Brijendrasingh has not been found on the spot, but as discussed

above the prosecution by producing the evidence of eye-witnesses,

which remained unrebutted, has proved its case beyond reasonable

doubt, and therefore, looking to the facts and circumstances of the 26 Criminal Appeal No.269/2009

case and evidence came on record, in the opinion of this Court, non-

seizure of gun of the deceased from the spot is not so material to

demolish the case of the prosecution.

31. In view of the aforesaid analysis, this Court is of the

considered opinion that trial Court has rightly convicted and

sentenced the appellant as aforesaid and accordingly this appeal is

hereby dismissed. The appellant is in jail, he is directed to serve

remaining jail sentence as awarded by the trial Court.

                  (G.S.Ahluwalia)                (Deepak Kumar Agarwal)
                       Judge                                Judge


ms/-
       MADHU
       SOODAN
       PRASAD
       2021.10.04
       16:55:37 +05'00'