Madhya Pradesh High Court
Prahlad vs State Of M.P. on 22 September, 2021
Author: Vivek Rusia
1 CRA No.1387/06, 1396/06 & 122/07
1221221222122/07
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
DIVISION BENCH: HON'BLE MR. JUSTICE VIVEK RUSIA
HON'BLE MR. JUSTICE SHAILENDRA SHUKLA
CRIMINAL APPEAL NO.1387 OF 2006
(1) Sunil S/o Nandramj Gawali
Age 20 years, Occupation-Student
Resident of Gawalipura, Nalkheda,
District - Shajapur (MP)
....Appellant
Versus
State of Madhya Pradesh
Through Police-Station - Nalkheda
District - Shajapur (MP)
.....Respondent
CRIMINAL APPEAL NO.1396 OF 2006
(2) Prahlad S/o Rameshwar Patidar
Age 23 years, Occupation-Student
Resident of Ashok Marg, Nalkheda,
District - Shajapur (MP)
....Appellant
Versus
The State of Madhya Pradesh
Through Police-Station - Nalkheda
District - Shajapur (MP)
....Respondent
CRIMINAL APPEAL NO.122 OF 2007
(3) Kamal Kishore S/o Banshilal
Age 28 years,
Resident of Hospital Road, Nalkheda,
District - Shajapur (MP)
....Appellant
Versus
The State of Madhya Pradesh
Through Police-Station - Nalkheda
District - Shajapur (MP)
....Respondent
2 CRA No.1387/06, 1396/06 & 122/07
1221221222122/07
--------------------------------------------------------------------------------------------------
Shri Nilesh Dave, learned counsel for the appellants.
Shri Amit Singh Sisodia, learned counsel for the
respondent /State of Madhya Pradesh.
------------------------------------------------------------------------------------
JUDGMENT
(Delivered on 22nd day of September 2021)
Per Shailendra Shukla, J.
Regard being had to the similitude of the FIR and
factual foundation, these appeals filed on behalf of the
appellants were analogously heard and decided by this
common order.
1. These appeals have been filed against the judgment
dated 25.11.2006 passed by ASJ, Agar in ST No.62/2006
whereby the appellants have been found guilty under Section
450, 302/34 of IPC and have been sentenced to five years
R.I. with fine of Rs.500/- each with default stipulation in
respect of offence under Section 450 of IPC and with life
imprisonment and fine of Rs.1000/- each with default
stipulation for committing offence under Section 302 of IPC.
2. The prosecution story in short was that on 17.02.2006 at
about 4:00PM, while Ramdayal was studying in his room
situated on the first floor and his brother Parmanand was
sitting below at the shop in village Nalkheda, District-Shajapur
(MP), the appellant Sunil armed with fire arm (revolver)
accompanied with appellants Kamal Kishore and Prahlad
came and all the three went upstairs and Sunil fired a gun shot
from his fire arm and then all the three appellants fled from the
1221221222122/07
spot. The bullet struck Ramdayal above left eye-brow and he
fell down and succumbed to the injury. Complainant
Parmanand narrated the incident to Gordhan and Suresh and
lodged the FIR half an hour later at Police Station Nalkheda
which was registered, Merg was instituted, the police arrived at
the spot, police Officer P.R. Patoliya PW/10 prepared the spot
map. The aforesaid premises had been rented out to deceased
by one Daulatram. The statements of witnesses were
recorded, Naksha Panchnama was drawn, the body was sent
for post-mortem wherein it was found that the death occurred
due to excessive blood loss from wound caused by bullet. The
appellant Sunil was arrested on whose memorandum, the fire
arm was seized. The sanction for prosecution under Arms Act
was sought from District Magistrate. The seized items were
sent to FSL and after investigation, charge-sheet was
ultimately filed against the appellants.
3. JMFC, Susner committed the matter to the Sessions
Judge, Shajapur from where the matter was sent to ASJ,
Shajapur for trial.
4. Charges under Section 450, 302 of IPC and under
Section 25 and 27 of the Arms Act were framed against Sunil
whereas charges under Section 450,302/34 were framed
against other accused persons. The appellants abjured their
guilt. Sunil took a defense that on the date and time of the
incident, he was not present on the spot but was in Agar.
Kamal Kishore took a defense that he has been implicated
falsely by Patidar community. The reason for false implication
is that the appellant Kamal Kishore belongs to Patidar
1221221222122/07
community who was reared up by Patwari Ambaram whereas
Ambaram himself does not belong to Patidar community and
therefore, Patidar community nursed grudge against him.
Appellant Prahlad took defense that at the time of incident, he
was in his house and has falsely been implicated.
5. The prosecution has examined 13 witnesses in all
whereas one defense witness has been examined on behalf of
Prahlad.
6. The trial Court, after considering the evidence of the
witness and the material available on record, has convicted the
appellants as already described.
7. In the appeals filed by the appellants, it has been
submitted that there is no evidence on record to suggest that
thee was a common intention of the appellants to commit
murder of Ramdayal. No such words have been exchanged
between the appellants showing existence of such common
intention. Although, the fire arm has been shown to have been
fired from close range, but there is no blackening or charring of
the skin where bullet had entered, no motive has been proved
for killing Ramdayal, that although witness Parmanand has
stated that when his brother Ramdayal was shot, the witness
held him and took him to hospital, but no blood stains clothes
have been found on the clothes of Parmanand, that it has not
been proved that bullet was fired from the fire arm, on these
grounds appeals have been sought to be allowed.
8. The question which arises for our consideration is
1221221222122/07
whether in view of the grounds contained in the appeals, the
appellants deserve to be acquitted.
9. Parmanand (PW/1) has stated that he and his brother
Ramdayal were the tenants of Daulatram Patidar in village
Nalkheda. On the date of incident i.e. on 17.02.2006, the
witness was sitting in the shop of Daulatram situated in the
ground floor and his brother Ramdayal was studying upstairs.
One another witness Gordhan was also sitting nearby at that
point of time, the appellants came, Sunil was wielding firearm,
all the three accused then went upstairs and they were
followed by the witness and Sunil fired the shot which hit above
the left eyebrow of Ramdayal who fell down on the floor. The
witness cried aloud, then Gordhan came to the spot. The
witness states that he told Gordhan that the appellants have
shot Ramdayal. The witness states that at that point of time,
one Suresh also arrived and was standing behind the witness,
both of them immediately started managing Ramdayal.
Gordhan called the father of deceased as well as brother Dilip
to the spot and report was lodged. Thus, this witness claims
himself to be the eye-witness. It is to be seen as to whether
there are other eye-witness as well.
10. Gordhan (PW/2) states that on the date of incident he
was working in the shop of Daulatram. Along with him
Parmanand was also there and Ramdayal (deceased) was
sitting upstairs at about 3:30pm - 4:00pm. The accused
Prahlad and Kamal came and went upstairs they were followed
by appellant Sunil who was wielding the fire-arm. He also went
upstairs. A minute later the sound of gunshot was heard,
1221221222122/07
hearing which the witness started setting out for going upstairs
and at that point of time he saw the appellants coming down
with accused Kamal wielding the firearm. All the accused while
climbing down had told him that Ramdayal has been hit with
the door and they are going to fetch a Doctor. The witness
states that when he and Parmanand went upstairs, he saw that
there was a hole in the head of Ramdayal which was bleeding.
Parmanand then asked him to call the father of injured, the
witness then went out and called Babulal, the father of
Parmanand and his brother Dilip. The witness states that
Ramdayal (deceased) was carried by Babulal to Doctor. This
witness has been declared hostile. He denies the suggestion
by Prosecutor that all the three accused had come together.
He also denies that appellant-Sunil had gone upstairs
threatening him with firearm. Thus, there is material
discrepancy between this witness and Parmanand (PW/1).
Parmanand (PW/1) has made his statements in accordance
with the prosecution story i.e. all the three accused had come
together and had gone upstairs and Ramdayal had been shot,
whereas Gordhan (PW/2) has stated that Sunil had arrived
after the arrival of other appellants.
11. Suresh (PW/3) also supports the prosecution story as
being an eye-witness. He states that on the date of incident, he
had gone to Nalkheda Krishi Upaj Mandi, Ujjain, on his truck.
On that day, he had gone to the house of Daulatram for placing
a bag containing vegetables and Holas (Roasted whole chick
peas). He saw Gordhan (PW/2) i.e. the servant of Daulatram
weighing copper wire and he then went upstairs and saw that
Ramdayal was sitting over there and he also saw that all the
1221221222122/07
three accused/ appellants namely; Sunil, Prahlad and Kamal
standing over there and appellant Sunil was wielding a
Revolver and at that point of time Sunil fired from his firearm
which hit Ramdayal on his forehead. The deceased
(Ramdayal) fell to the ground and at that point of time Gordhan
(PW/2) came rushing from downstairs. He then states that
Parmanand was already in the room and had told him that all
the three accused/appellants Sunil, Prahlad and Kamal had
fled from the spot after committing the offence and that Sunil
had fired from his firearm. The witness immediately thereafter
states that this incident was narrated by Gordhan. As per the
witness, he and Parmanand along with Gordhan then went to
the Police-Station-Nalkheda, District-Shajapur for lodging the
report. There is, thus, contradiction in the statements of this
witness in the examination-in-chief only. On the one hand, he
says that the firearm was used in his presence only but
immediately thereafter he states that it was Parmanand who
told him and then further makes another improvement by
saying that Gordhan (PW/2) had told him. In his cross-
examination on behalf of the appellant Kamal, he states that
the gunshot was fired in the presence of this witness. However,
Parmanand (PW/1) has stated that Suresh (PW/3) had come
after the shot was fired Gordhan (PW/2) had come to the spot
and then Suresh had also come to the spot. Thus, the
evidence of Suresh (PW/3) that the shot was fired in his
presence does not appears to be correct.
12. The owner of shop Daulatram (PW/4) is the hearsay
witness who states that Parmanand (PW/1) and Ramdayal
(deceased) were his tenants and his nephew Gordhan (PW/2)
1221221222122/07
also used to study with Parmanand. On the date of incident,
this witness had gone to Badegaon and when he came back,
he came to know about the incident. The witness then went to
the spot and the police drew the spot map before him which is
Ex.P/3 carrying signatures from 'A to A' part.
13. Babulal (PW/5) is the father of Ramdayal who states that
on 17.02.2006, Gordhan (PW/2) had come to him and told him
that Ramdayal (deceased) has been hit and the witness then
accompanied Gordhan on his motorcycle and went to the room
of his son Ramdayal where he was told by Parmanand (PW/1)
and Suresh (PW/3) that all the three accused had come and
accused Sunil had shot at Ramdayal. The witness states that
then he took Ramdayal to hospital where he was declared to
be brought dead by the Doctor.
14. Thus, Gordhan (PW/2) is hostile and as per Parmanand
(PW/1) also, Gordhan came to the spot after the shot was fired.
The evidence of Gordhan (PW/2) as an eye-witness of this
incident is not reliable. Same is the case of Suresh (PW/3) as
well who although claims that the incident had occurred in his
presence but subsequently has stated that Parmanand had
told him about the incident. This witness also cannot be
considered to be an eye-witness of the incident. Both these
witnesses Gordhan (PW/2) and Suresh (PW/3) are reliable to
the extent that immediately after the incident they had come
upstairs and seen Ramdayal in an injured condition. This
leaves us with the evidence of Parmanand (PW/1) only who
states that he had seen all the three accused/appellants going
upstairs with accused/appellant Sunil wielding a Katta
1221221222122/07
(Revolver) and which prompted the witness to follow them and
Sunil then had Shot Ramdayal (deceased). In the cross-
examination, he states in para 7 that as Ramdayal was shot,
the witness tried to support him and in the process his clothes
caught stained with blood and in para 8, he states that he had
gone to the Police-Station in the same clothes which were
stained with blood.
15. Learned counsel for the appellants submitted that the
clothes of Parmanand (PW/1) carrying human blood stains
were not seized by the police which makes his presence at the
spot doubtful. However, learned counsel for the State submits
that although the clothes of Parmanand had not been seized
by the police but the statements of Parmanand (PW/1) that the
incident had occurred in his presence has not been challenged
in the cross-examination. The cross-examination of Parmanand
(PW/1) was perused. There is substance in the submission of
learned counsel for the State that in the cross-examination of
Parmanand (PW/1), there is no substantial discrepancy by way
of contradictions and omissions in respect of the statements
made in examination-in-chief in which the witness has narrated
the incident as an eye-witness.
16. P.R. Patoliya (PW/10) is the ASI who states that he had
recorded the FIR Ex.P/1 which was lodged by Parmanand
(PW/1) and thereafter he had proceeded to the spot and had
prepared the spot map Ex.P/3. He had collected the blood
mixed cement and normal cement from the spot Ex.P/4. The
witness has stated that he had sent the seized articles to FSL
vide draft letter Ex.P/17 and he had received the report which
1221221222122/07
is Ex.P/18. The report Ex.P/18 shows that the cement collected
from the spot had traces of human blood. Daulatram (PW/4) is
the witness whose presence the spot map Ex.P/3 was drawn.
He also states that the blood stained cement was scratched
and collected in his presence. Babulal (PW/5) is the witness
who carried Ramdayal from the spot to the hospital. Thus it is
proved that Ramdayal was shot in his room only as per the
prosecution story.
17. Dr. Ramesh (PW/9) has conducted the postmortem of
Ramdayal (deceased). He states that on 17.02.2006, the body
of Ramdayal was brought by Constable Durgabaksh No.522.
On examination, he found that gunshot injury on left side of
forehead is 1 inch above the left eyebrow. There was a tunnel
like entry wound which was 1x4x1x4 inches. The bullet was
found inside the brain which is 1/4x1/2 inches in diameter and
½ inches in length and it was made up of copper metal. The
brain matter had suffered damages due to this injury. The
death had occurred due to excessive bleeding resulting in
stoppage of heart and lungs. The postmortem report is
Ex.P/9A. The witness in para 4 of his cross-examination has
stated that no photographs of the wound had been taken. He
states that were no cracks around the skull near the place of
entry of bullet. In para 6, he states that the tunnel of injury
occurs only when the firearm is held so close to the skull it
touches the skull, however, he states that there were no
blackening or charring in the skin near the entry wound.
18. Learned counsel for the appellants submitted that in the
absence of charring or burn injury would mean that the firearm
1221221222122/07
was not used from such close range as stated by the Doctor. In
support, the citation of Parasnath vs. State of Uttar Pradesh
reported in 2003 CRLJ 1310 has been cited to bolster his
submission.
19. This submission was considered.
20. The witness Dr. Shiva (PW/9) has been given no
suggestion that blackening of skin or charring of skin would be
occuring when the firearm was shot by holding the firearm
against the forehead of the injured. Doctor Shiva has not been
confronted with any medical treatise. A bullet has indeed been
found inside the brain matter. Hence there is no doubt
regarding the fact that the death had occurred due to shot fired
from the firearm.
21. The alleged firearm has been seized from
accused/appellant Sunil by Investigating Officer Mr. P.R.
Patoliya (PW/10) on the basis of his memorandum Ex.P/14.
The seizure memo is Ex.P/15. The revolver was drawn out by
accused - Sunil after digging out the soil near the culvert as per
the witness. The independent witnesses namely; Deepak
Bhavsar (PW/11) and Mahesh (PW/12) have turned hostile and
have not supported the prosecution story as well as the
recording of memorandum of Sunil and seizure from him.
22. Learned counsel for the appellants has drawn Court's
attention to the FSL report Ex.P/18 in which the seized revolver
has been shown as Ex.A/1 and the seized bullet is Ex.EB1 and
the same have been examined. It has been found that the
1221221222122/07
alleged revolver is in a working condition and in the barrel there
are signs of same having been used as there are particles
which accumulate if the revolver has been used. The bullet
was also examined and it was partially disfigured bullet. There
were no rifling marks on the bullet but barrel marks were found
to be present and on microscopic matching of the same with
the revolver adequate data could not be gathered so as to
prove that the bullet had been fired from the same revolver.
However it has been opined that the aforesaid bullet has been
fired from such firearm as (Ex.A/1) which carries smooth bore
barrel. Learned counsel submits that in absence of proper
matching, it cannot be stated for sure that the firearm was the
same firearm from which the bullet in question had been fired.
Close scrutiny of Ex.P/18 would show that the bullet did not
carry any rifling marks meaning thereby that it was fired from
the a firearm whose barrel did not have any rifling marks i.e. it
was a smooth barreled firearm and the firearm in question i.e.
A/1 was infact such firearm. Further the seized weapon had
been found to be in a working condition and had been used.
Further there is no discrepancy in the statements of
Parmanand (PW/1) that it was the accused/appellant Sunil who
had fired from his firearm.
23. Thus, it is proved beyond reasonable doubt that
Ramdayal (deceased) had died due to being shot by
accused/appellant Sunil. The intention to cause death is
apparent in the manner in which the firearm was fired from
close range on the vital organ of deceased i.e. forehead. The
presence of motive is not sine-qua-non for convicting the
accused persons and it is only a relevant fact under Section 8
1221221222122/07
of the Evidence Act 1872 and in absence of such relevant fact
also, the offence may be found proved and the accused may
be convicted. Sanction to prosecute under Arms Act has duly
been obtained as per witness Kanti Sisodia (PW/6).
24. Consequently, we hold the conviction of appellant Sunil
under Section 302 IPC to be appropriate. The conviction and
sentence of appellant Sunil under Section 25 and 27 of Arms
Act, 1959 also stands affirmed. As far as the other
accused/appellants namely Kamal and Prahlad are concerned,
they have been convicted under Section 302/34 of IPC. In
order to prove the common intention, it has to be proved that
both the co-accused had shared the common intention with the
main accused Sunil and that there was a pre-meditation and
pre-consult and these factors are found missing in the present
case. It may be that these two co-accused persons may have
thought that Ramdayal (deceased) would only be threatened
by the main accused with the firearm. No words have been
shown to have been uttered by any of the accused persons
prior to opening the fire by Sunil. The absence of exchange of
any words between the accused themselves and the victim
makes it difficult to show that the accused shared the common
intention with the main accused to kill Ramdayal (deceased).
Hence their conviction under Section 302/34 of IPC is set-
aside. Regarding the conviction of accused/appellant Sunil
under Section 450 IPC, the same would stand proved against
Sunil, whereas accused Kamal and Prahlad would stand
convicted under Section 452 IPC which punishes house
trespass after preparation for hurt, assault or wrongful restraint.
The conviction of Kamal and Prahlad under Section 450 IPC is
1221221222122/07
thus set-aside and they are sentenced to 03 years RI under
Section under Section 452 IPC with no change in fine amount.
The conviction of appellant Sunil under Section 302 and 450
IPC stands affirmed with no change in quantum of sentence.
The appeal of appellants Sunil and Prahlad is partially allowed
and both are acquitted from charge framed under Section
302/34 IPC. Their conviction under Section 450 IPC is set-
aside and instead they are convicted under Section 452 IPC
and their sentences from 07 years RI stand reduced to 03
years RI with fine of Rs.500/- with further default stipulation.
The appellants Prahlad and Kamal be released forthwith if they
are in jail, as they have already completed their jail term. The
appeal stands disposed of in aforesaid terms.
25. The disposal of seized property would be as per the
impugned judgment of Trial Court.
26. Let a copy of this judgment along with record be sent to
the Trial Court for compliance.
(VIVEK RUSIA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Arun/-
Digitally signed by
ARUN NAIR
Date: 2021.09.22
17:09:47 +05'30'
1221221222122/07
