Ashish Singh Tomar vs The State Of Madhya Pradesh
2021 Latest Caselaw 5156 MP

                                    1                              CRA-4692-2021
          The High Court Of Madhya Pradesh
                     CRA-4692-2021
           (ASHISH SINGH TOMAR AND OTHERS Vs THE STATE OF MADHYA PRADESH)


Gwalior, Dated : 08-09-2021
         Heard through hybrid system of physical/ virtual hearing.

         Shri Anand Purohit, learned Counsel for appellant/ complainant.
         Shri RK Awasthi, learned Public Prosecutor for respondent No.1/
State.
                              JUDGMENT

Per Deepak Kumar Agarwal, J:

The present Criminal Appeal u/S. 372 of CrPC preferred by appellant- complainant challenging the judgment dated 25/06/2021 passed by Seventh Additional Sessions Judge, Shivpuri, (M.P.) in Sessions Trial No.101/2016, whereby accused (respondents No.2 to 5) have been acquitted from charges u/Ss.294, 307/34 or 307 of IPC.

Prosecution case, in brief is that on 02/02/2016, complainant Ashish Tomar (PW4) lodged a report at Police Station Kotwali, Shivpuri stating therein that he is having an Ice-cream shop at Fatehpur Road, Shivpuri. In

front of his shop, accused Manoj Gupta (respondent No.2 herein) was doing excavation work of sewer line by Hitachi Machine due to which, the passage to his shop is obstructed. Hence, he requested accused Manoj Gupta and his brother Purshottam Gupta, Ashok Gupta and nephew Nikki Gupta that the work will be done in such a manner that the customers may come to his shop without any difficulty or problem and the passage to his shop be not obstructed. On that, they started abusing with filthy languages and beating him. Accused Manoj Gupta told that ''Bahut Netagiri Karta hey, abhi Netagiri Nikalte hey'' and thereafter, brought his 315 bore licensee gun from his house. His brother and nephew exhorted him to kill the complainant. At that time, the complainant was standing in front of his shop, then accused Manoj Gupta, with intention to kill him fired a gunshot from a distance of 15 ft. but the complainant moved away as a result of which, gunshot hit at the 2 CRA-4692-2021 glass counter of his shop and broken pieces of glass as well as pellets hit his left knee. On the basis of his report, Crime No.90/2016 was registered against accused persons u/Ss. 307, 294, 506, 34 of IPC and the accused were arrested. After completion of investigation, charge sheet was filed and the matter was committed to the concerning Sessions Court and charges were

framed. After due appreciation of prosecution as well as defence evidence available on record, the learned Trial Court acquitted the accused (respondents No.2 to 5 herein) from the charges levelled against them as stated above, vide impugned judgment. Hence, this appeal.

Learned Counsel for the appellant submits that the impugned judgment passed by trial Court is illegal, arbitrary and the learned trial Court has not appreciated ocular as well as documentary evidence available on record while passing the impugned judgment. The learned trial Court has appreciated the evidence in hyper technical manner and the reasoning given while passing the impugned judgment is against the settled principle of law. In support of his contentions, the appellant's counsel has relied upon the judgment passed by the Apex Court in Mallikarjun Kodagali (Dead) represented through legal representatives vs. State of Karnataka and Ors, [Criminal Appeal Nos.1281-82/2018 [Arising out of SLP (Crl.) Nos.7040-7041/2014, decided on 12/10/2018] and contended that the impugned judgment deserves to be set aside.

Heard learned Counsel for the parties and perused the record. In the present case, complainant Ashish Tomar (PW4) in his deposition, stated that he knows the accused persons. On the alleged date of incident i.e. 02/02/2016 at about 11:15 am, he was in his shop situated at Jhansi Tiraaha. At that time, accused Manoj Gupta was doing excavation work of sewer line by Hitachi Machine. He told accused Manoj Gupta to do the work in that way so that the customers should not face any difficulty or problem in coming to his shop. On that, accused Manoj Gupta along with his brother Purushottam Gupta, Ashok Gupta and nephew Nikki Gupta abused 3 CRA-4692-2021 him in filthy languages. When the complainant objected to it, accused Manoj Gupta brought his 315 bore gun from his house and with intention to kill him, caused gunshot fire from a distance of 15 ft, but the complainant moved away as a result of which, the gunshot fire hit the glass counter of his shop and broken pieces of glass as well as pellets hit his left knee. Thereafter, accused Manoj Gupta again tried to cause fire, but his brother Raghvendra Singh Tomar caught hold of the barrel of gun and because of that, he could not make fire. In his cross-examination, this witness stated that gunshot was fired from a distance of 15 ft. He did not know that due to catching of barrel of the gun, hands of his brother were burnt or not ? He said that at the time of incident, the driver of JCB machine was present on spot. This witness further

stated that the broken pieces of glass as well as gun pellets through the glass counter of his shop, hit his leg. This witness in paragraph 9 of his deposition also admitted that at the time of dispute, these people (accused) were getting the work done and they were not having any gun.

Similarly, in order to prove the version of the complainant, brother of complainant Raghvendra Singh Tomar (PW5) in his deposition stated that accused Manoj Gupta with intention to kill, fired at his brother /complainant.

Dr.SK Bansal (PW7) who had examined complainant/injured stated that on 02/02/2016 during treatment, he took out two pieces of metal from the left leg of the injured and handed over the same to Police in a sealed cover vide Ex.P12 for FSL examination.

RC Dohare (PW9) in his disposition stated that he had seized some pieces of wood, broken pieces of glass and gun pellets from the place of occurrence vide Ex.P6.

On behalf of the accused, DD Sharma, SDO(P), has been examined as DW1. He has stated that on the basis of instructions received from Office of Superintendent of Police, to know the veracity of allegations alleged in Crime No.90/2016 registered at Police Station Kowali, District Shvipuri u/Ss. 294, 307, 506, 34 of IPC and Crime No.92/2016 u/Ss. 323, 294, 506, 34 of IPC, 4 CRA-4692-2021 he conducted an enquiry. During enquiry, statements of Raghvendra Singh Tomar, Mohan Lal Gupta, Vinod Gupta, Brijesh Kumar Gupta, Sunil Batham, Avtar Singh Gurjar, Santosh Singh Rawat, Manoj Lodhi, Constable Bhagwanlal were recorded by him. In para 5 of his deposition, he has stated that as per his enquiry, the sequence of event which unfolded is that on 02/02/2016 at 11:00 am, the JCB Machine was engaged in excavation of sewer line near the shop of Ashu alias Ashish Tomar. At that juncture, Ashu Tomar, Raghvendra Tomar and others gave beating to the driver of JCB machine, namely, Sunil Batham with the help of an iron rod and also damaged JCB Machine as a result of which, accused Manoj Gupta after bringing his licensee gun from his house, fired at Ashu Tomar, who was sitting in his shop. Nothing came in the enquiry in regard to presence of accused Ashok Gupta, Purushottam Gupta and Nikki Gupta (respondents No.3 to 5 herein) during the incident.

Looking to the evidence available on record, it is clear that accused Manoj Gupta (respondent No.2 herein) has not fired on the complainant with intention to kill him, but the said fire was made on sudden provocation without any premeditation on account of beating given by complainant Ashish Tomar (PW4) and his brother by means of iron rod to the driver of JCB Machine and causing damage to JCB Machine. The prosecution has not led any evidence that there was any old animosity between accused Manoj Gupta and complainant Ashish Tomar and accused Manoj Gupta has fired with any premeditation. It has also come on record that accused Ashok Gupta, Purushottam Gupta and Nikki Gupta are having separate shops and they have no participation in running of JCB machine. The SDO(P), DW1 has also not found involvement of these accused in the crime and it is not the case of prosecution that the enquiry so conducted by SDO(P) is not fair.

In view of aforesaid analysis, this Court is of the considered opinion that the learned trial Court has not committed any error in acquitting respondents No.2 to 5 from charges levelled against them u/S.294, 307/34 or 5 CRA-4692-2021 307 of IPC and convicting respondent Manoj Gupta u/S.308 in place of Sec. 307 of IPC.

Accordingly, this appeal sans merit and is hereby dismissed.

  (SHEEL NAGU)                                                            (DEEPAK KUMAR AGARWAL)
      JUDGE                                                                            JUDGE


MKB


 MAHENDRA      Digitally signed by MAHENDRA KUMAR BARIK
               DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
               GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH
               GWALIOR, postalCode=474011, st=Madhya Pradesh,


 KUMAR BARIK

2.5.4.20=f592da990684fe30f8e1e29a4a1a9e3451ee450d883 083a8e4cc8020eee6f7cb, cn=MAHENDRA KUMAR BARIK Date: 2021.09.15 10:43:37 +05'30'