The State Of M.P. vs Rajesh Senani & Ors.
2021 Latest Caselaw 5247 MP

                                   1



            HIGH COURT OF MADHYA PRADESH
              PRINCIPAL SEAT AT JABALPUR
                    Criminal Appeal No.1716/2002

                      Lalu Sindhi alias Dayaldas

                                   Vs.

                     The State of Madhya Pradesh


For the Appellant      : Mr. Surendra Singh , Ld. Sr. Adv.
                             with Mr. Ashwani Dubey,                learned
Advocate.

For the Respondent/ : Mr. Piyush Bhatnagar, Ld. Panel Lawyer
State
                              and

                    Criminal Appeal No.181/2003

                     The State of Madhya Pradesh

                                Vs.
                      Rajesh Senani and another



For the Appellant/     : Mr. Piyush Bhatnagar, Ld. Panel Lawyer
State

For the Respondent/ : Mr. Siddharth Datt, Ld. Adv.

            Coram: Hon'ble Mr. Justice Atul Sreedharan
                   Hon'ble Mrs. Justice Sunita Yadav


                          JUDGMENT

(09 /09/2021)

Per: Atul Sreedharan, J :

The Appellant Lalu Sindhi is aggrieved by the

judgment and order dated 31.10.2002 passed by the

learned 4 th Additional Sessions Judge (Fast Track Court),

Satna, in Sessions Trial No.167/1998 by which he has

been convicted and sentenced to suffer rigorous

imprisonment for life for an offence under section 302 IPC

with a fine of Rs.500/- and a further rigorous

imprisonment of two months in default of fine. He has

also been convicted for the offence under sections 25 and

27 of the Arms Act and sentenced to suffer rigorous

imprisonment for one and three years rigorous

imprisonment respectively and fine of Rs.200/- and 300/-

in default of fine, further rigorous imprisonment for one

month each.

2. Criminal Appeal No.181/2003 has been filed by the State,

which is aggrieved by the acquittal of the co-

accused/Rajesh Senani and Anil Kanojiya, by the learned

Trial Court.

3. The brief facts of the case are as follows : The deceased is

Jagdish Prasad Asati. He along with his son Dilip Gupta

(P.W.1), operate a sweet shop under the name and style of

"Kaka Sweet Mart" in Satna. As per Dilip Gupta (P.W.1),

on 28.8.1998 at around 6.00 a.m, Dilip Gupta and his

father Jagdish Prasad Asati went to the shop to open it for

the day's business. At that time, the Appellant Lalu Sindhi

alias Dayaldas, came to the scene of crime on a

motorcycle with two other co-accused persons namely

Rajesh Senani and Anil Kanojiya. The co-accused Anil

Kanojiya was riding the motorcycle and the Appellant was

sitting in the middle and co-accused Rajesh Senani was

sitting behind the Appellant. The Appellant got off the

motorcycle, stuck a firearm to the nape of the deceased

and fired a shot and thereafter got on the motorcycle and

the three of them rode away.

4. Dilip Gupta (P.W.1) says that he witnessed the incident

along with Abdul Aziz (P.W.2), Mohd. Tej (P.W.3) and

Guddu alias Shamim (P.W.4). Learned counsel for the

Appellant has submitted that, the trial Court has arrived

at the finding that P.W.2, P.W.3 and P.W.4 are not reliable

and, therefore, has rejected their testimony and has

convicted the Appellant only on the statement of Dilip

Gupta (P.W.1).

5. Learned counsel for the Appellant has argued that the

Appellant is innocent and that he has been falsely

implicated. He further stated that the actual incident took

place between the intervening night of 27 and 28/8/1998

and not in the morning of 28.8.1998 as is stated by the

prosecution. He further submits that the statement of

Dilip Gupta (P.W.1) is, with its share of embellishments

and contradictions, unworthy of reliance. He also submits

that a trident like weapon was used to first make a

puncture wound on the nape and thereafter, the deceased

was shot through the same puncture made by the trident

like weapon, while the witness only says that the

deceased was only shot and does not speak of any assault

on the deceased with a trident like weapon. According to

the Ld. Counsel for the Appellant, the medical evidence

that has come on record is at complete variance with the

ocular testimony of the eyewitness Dilip Gupta

(P.W.1) and that the benefit of this ought to have gone to

the accused.

6. Per contra, learned counsel for the State has argued in

both the criminal appeals and has submitted on behalf of

the state that the conviction recorded by the learned Trial

Court against the Appellant in Criminal Appeal

No.1716/2002 is just and proper based upon a correct

appreciation of the facts on record. However, the learned

counsel for the State also submits that the State is

aggrieved by the acquittal of Rajesh Senani and Anil

Kanojiya, who according to the learned counsel for the

State harboured the same common intention with the

Appellant Lalu Sindhi as it was Rajesh Senani and Anil

Kanojiya (respondents in Criminal Appeal No.181/2003),

who brought the main accused Lalu Sindhi to the scene of

occurrence and also took him away from there after Lalu

Sindhi had committed the crime.

7. Per contra, learned counsel for the respondents in

Criminal Appeal No.181/2003 has argued that the

acquittal of his clients recorded by the learned Trial Court

is just and proper. But for having come there to the scene

of occurrence along with the main accused and having

driven away with him after the incident, there is no

evidence to suggest that Rajesh Senani and Anil Kanojiya

also harboured the same intention as the Appellant Lalu

Sindhi which has been examined in great detail by the

learned Trial Court. He has further submitted that the

acquittal recorded by the learned Trial Court of his clients

is just and proper and the same cannot be said to be

perverse in the facts and circumstances of this case and

that if two views are probable, that by itself would not be

adequate for the appellate Court to set aside an order of

acquittal in the absence of any inherent perversity in the

order passed by the learned Trial Court.

8. Heard the learned counsels for the parties and perused the

record of the learned Trial Court. (P.W.1) is Dilip Gupta.

He is the son of the deceased and also an eyewitness to

the incident. He has identified the accused persons in

Court as those who are known to him and has said that on

28.8.1998 at around 6.00 am, the Appellant Lalu Sindhi

along with acquitted accused persons reached the scene of

crime on a motorcycle. He further states that the sweet

shop belongs to him and at that time only he and his

father were present there and at that point of time, the

deceased was filling water. He further says that the co-

accused Anil Kanojiya was driving the vehicle and that the

Appellant Lalu Sindhi was sitting in middle and behind

him was the co-accused Rajesh Senani. Appellant Lalu

Sindhi alighted from the motorcycle and placed the

firearm on the neck of the deceased and fired a shot after

which, the three got on the motorcycle and went away. He

further says that after being shot by the Appellant Lalu

Sindhi, the deceased fell down there itself. After this, Dilip

Gupta (P.W.1) went to the Police Station, City Kotwali and

registered the FIR, which is Ex.P/1. The FIR is Crime

No.644/1998, which registered on 28.8.1998 itself at 7.00

am in the morning i.e 1/2 an hour after the incident which

had taken place at 6.30 am.

9. Four accused persons were named in the FIR including the

Appellant herein. In the FIR also it is clearly stated that

the Appellant Lalu Sindhi had fired at the father of Dilip

Gupta (P.W.1), which hit him on the nape. The Police

carried out the inquest proceedings and sent the body for

post-mortem. The post-mortem report is Ex.P/8. The

doctor observes that the rigor mortis had "not developed".

His observation with regard to the entry wound is

definitive, which he notes down as a "triangular entry

wound in the back of the nape of the neck with upper

portion just at the hair margin in midline deep up to the

bone and brain matter, two fingers in diameter. Margins at

entry wound has got black coloured particle deposition

around entry wound. Tattooing is present around the entry

wound. No other external injuries seen" . As far as the

condition of the internal organs are concerned, the doctor

records that the skull is fractured in the back of the

occipital area admitting two fingers and ruptured with

haematoma present, the skull was also ruptured on the

occipital area and a bullet is found inside the brain

matter. The bullet was seized and handed over to the

police along with the clothes worn by the deceased. The

opinion with regard to the cause of death is shock due to

the injury to the brain matter caused by firearm injury.

10. The learned counsel for the Appellant has referred to two

judgments of the Supreme Court, which is AIR 1974 SC

1256 Bhoor Singh and another Vs. State of Punjab (also

reported in (1974) 4 SCC 754). The other judgment is

AIR 1976 SC 2423 Ishwar Singh Vs. State of U.P. (also

reported in (1976) 4 SCC 344). In Bhoor Singh's case

(AIR 1974 SC 1256 - (1974) 4 SCC 754), the Appellants

had approached the Supreme Court against the

confirmation of death sentence by the High Court inter alia

for an offence under section 302 read with section 149

IPC. In that case there was a fight between two groups in

which firearms were used and four persons died. While

explaining the nature of wounds caused by gunshot

injuries, in paragraph 31 (in SCC) of the judgment, the

Supreme Court opined that "A gunshot wound of entry

caused by a single pellet or ball is ordinarily circular or oval

in shape. If these injuries were the result of a gunshot fired

from close range, with all the pellets piercing en

masse through the neck, there should have been scorching,

blackening and tattooing in and around the wound of entry.

The wadding, or round cardboard pieces or pellets should

have been found inside or outside the wound near the body.

Nothing of this kind was found. Furthermore, the very story

of Ajit Singh firing at Ishar Singh, but instead hitting his

own brother was improbable. According to the prosecution,

Ishar Singh was then interlocked in a struggle with Baldev

Singh. If that was so, there should have been some gunshot

injury on Ishar Singh. But the Doctor did not find any such

injury on him". Thereafter, the Supreme Court opined in

paragraph 32 "The above negative and positive

circumstances are tell-tale. Taken in conjunction with the

Doctors' opinion given in cross-examination, they

probabilise the defence version that the injuries to Baldev

Singh were caused with a sharp pointed weapon -- and not

with a firearm -- by the complainant party". The Ld. Counsel

for the Appellant has read this judgement in the light of the PM

report and testimony of the doctor who conducted the post

mortem, to impress upon us that the "Trident" shaped entry

wound found on the nape of the deceased could not have been

caused by a bullet as such an entry wound had to be oval or

circular while in this case, it was in the shape of a "Trident" was

suggestive that a sharp pointed object was used first to cause

the puncture wound and thereafter gunshot fired through the

very same aperture caused by the penetrative injury from the

sharp pointed object. He further says that no such object (sharp

and pointed) was ever seized by the police from the scene of

crime and that the same put the genesis of the crime itself in

doubt.

11. In Ishwar Singh's case, the Appellant had appealed against

the confirmation of the death sentenced by the High Court.

The facts of that case were that on account of a dispute

between the informant Mahaveer and Ishwar Singh.

Mahaveer demolished a portion of a drain at Mahaveer's

and Ishwar Singh's own adjacent lands which was

constructed by Ishwar Singh. Five accused persons came

to the house of Mahaveer Singh along with various

weapons and questioned him as to why he demolished the

drain and assaulted Mahaveer Singh and others who were

present in the house. The Appellant Ishwar Singh struck

one Chouhal Singh on his chest with a Ballam because of

which Chouhal Singh died on the spot. Learned counsel for

the Appellant has used this judgment for the proposition

that where the injury received by the injured or the

deceased, reflects the nature of the weapon probably used

in the commission of the crime. He further submits that

the prosecution ought to draw the attention of the doctor

who had conducted the post-mortem or prepared the MLC,

to clarify whether the nature of the injury seen on the

body of the deceased or the injured, could have probably

been committed by the weapon seized by the prosecution.

12. As regards the judgment of the Supreme Court in Bhoor

Singh's case, the Supreme Court has observed that a

gunshot injury would ordinarily be circular or oval in

shape especially when fired from a close range. In that

particular case, the weapon used appears to have been a

12 bore gun and the Supreme Court observed that had the

said weapon been used, there ought to have been

scorching, blackening and tattooing in and around the

entry wound and the wad and or cardboard pieces, along

with the pellets should have been found inside or outside

the wound, near the body. However, none of this was

observed in the post-mortem report on account of which

the prosecution theory of the injury being caused by a

gunshot, was disbelieved by the Supreme Court. However,

in this case, the situation is entirely different.

Undoubtedly, the doctor who carried out the post-mortem

report has recorded that the entry wound is triangular in

shape. The said phenomenon is an oddity as normally the

entry wound of 315 bore firearm should have been round

or oval. However, the other aspects which were mentioned

in Bhoor Singh's case with regard to the absence of

blackening or wad or pellet in the body of the deceased,

are not applicable in the case at hand. In this case the

doctor records unequivocally that around the margins of

the entry wound there was blackening and tattooing

around the entry wound and the bullet was found inside

the brain.

13. The contention of learned counsel for the Appellant is that

a triangular entry wound from a gunshot injury is not

merely an impossibility but extremely improbable and

therefore, the prosecution's case was rendered weak. In

this regard it would be worthwhile to quote Sherlock

Holmes "when you have eliminated the impossible,

whatever remains, however improbable, must be the

truth" 1 .

14. The distinction between "Impossible" and "Improbable"

though subtle, is real. The word "Impossible" means the

inability of a circumstance to exit or an event happening,

with absolute certainty. Thus, with everything remaining

constant in nature and without any external or artificial

1 Sherlock Holmes - The sign of four - by Sir Arthur Conan Doyle

impetus, it is "impossible" for a stone that is dropped, to

rise higher into the air rather than fall to the ground.

"Improbable" on the other hand considers the unlikelihood

of a circumstance to exit, or an event happening, taking

the sum totality of attendant circumstances into

consideration. Thus, the ability of a stone to attain stable

flight in air with external or artificial impetus, though not

impossible, is "improbable", as it lacks an aerodynamic

structure which is necessary to sustain stable flight.

15. Similar, is the distinction between "Possible" and

"Probable". "Possible" is an assumption of the existence of

a circumstance or the happening of an event, but without

certainty. "Probable" on the other hand involves a greater

degree of likelihood of the existence of a circumstance or

the happening of an event. Thus, it is possible that life

may exist on Jupiter but in the absence of any evidence to

that effect as on date, it does not appear probable. The

appreciation of evidence in a criminal trial is a deductive

process by which the Court eliminates the "possibilities" in

a given case to arrive at the most "probable" inference, in

the sum totality of the evidence on record, and therein lies

the truth, beyond reasonable doubt.

16. In this case, the absence of any hard, pointed and sharp

object at the scene of crime coupled with the unequivocally

assertive testimony of PW1, the eyewitness, that there was

only a single gunshot injury fired at the nape of the

deceased with a firearm, and the prompt registration of the

FIR (within half an hour of the incident) which narrates

the facts as reiterated in the testimony of PW1, goes to

eliminate the usage of a "trident" like weapon to cause the

injury, as an "impossibility". The "Trident" shaped entry

wound, though "improbable" of being caused by a 315

bore bullet, when seen in conjunction with the blackening

and tattooing around the "Trident" shaped wound

(classical signs of a gunshot injury from point blank

range), and the recovery of the bullet lodged in the brain of

the deceased, and the absence of any other entry wound

on the nape of the victim, establishes as "true", that the

"Trident" shaped entry had to be caused by the gun shot,

as besides that there is no other injury through which the

bullet could have entered and lodged itself in the brain of

the deceased. Therefore, the "Trident" shaped entry wound

having been caused by the gunshot wound attributable to

the Appellant, though an "improbability", was the truth

arrived at by elimination of all other possibilities.

17. The ballistic experts report is not conclusive with regard to

the bullet recovered from the brain of the deceased having

been fired from the same weapon recovered from the

Appellant (a country made firearm). It had smooth bore

without rifling and only the barrel marks were available

on the bullets seized from the body of the deceased and

the bullet used in the test firing. It further states that the

barrel marks that were found were inadequate for a

comparison. It also reveals that the nitrite residue inside

the barrel of the gun only goes to show that it was fired,

but how recently?, the report does not disclose. A country

made firearm does not leave the classical tell tale signs on

a bullet fired from it as it would in a branded firearm.

Firearms firing bullets usually have rifled barrels which

leaves lands and grooves on the bullet as it passes through

the barrel enabling comparison by the ballistic expert with

an acceptable degree of certainty. However, a country

made firearm which is smooth barrelled gives room for

movement to a bullet passing through it to collide with the

sides of the barrel leaving barrel marks, which need not be

consistent. Therefore, the ballistic report of the firearm

seized from the Appellant is not of much significance in

the light of the testimony of PW1.

18. As P.W.1 has been consistent on material particulars

relating to the manner in which the murder was

committed, and the fact that the FIR was registered within

1/2 an hour of the incident, and no major contradiction

has been brought out by the defence in cross

examination, we are of the opinion that the prosecution

has been able to prove its case beyond reasonable doubts

and, therefore, we dismiss the appeal and confirm the

order passed by the learned Court below.

19. The Criminal Appeal No. 1716/2002 is dismissed.

However , we make it clear that the dismissal of this

appeal does not come in the way of the State

exercising its discretion of granting remission to the

Appellant as and when it deems fit and proper.

20. As regards the appeal filed by the State against the

acquittal of the co-accused persons, the reason given by

the learned Trial Court for acquitting the other two co-

accused persons on account of their involvement in the

offence being restricted to accompanying the Appellant to

the scene of crime and going away from there together,

cannot be said that they too have harboured the common

intention of the Appellant Lalu Sindhi. No evidence has

been brought by the prosecution before this Court that

there was prior meeting of minds between the main

accused Lalu Sindhi and the respondents Rajesh Senani

and Anil Kanojiya and, therefore, the order acquitting

them cannot be termed to be perverse and not based on

the record of the case. Under the circumstances, we

uphold that part of the order of the learned Trial Court

acquitting the Respondents and dismiss Criminal Appeal

No.181/2003 filed by the State against the acquittal of

the respondents.

21. With the above, the appeal is finally disposed of.

     (Atul Sreedharan)                                    (Sunita Yadav)
          Judge                                                Judge
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