Madhya Pradesh High Court
Sandeep vs The State Of Madhya Pradesh on 25 January, 2022
Author: Vivek Rusia
1
Cr.Appeal Nos.27/2012 & 1402/2011
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Cr.Appeal No.27 of 2012
Sandeep S/o Shiv Kumar Agnihotri
Vs.
State of Madhya Pradesh
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Cr.Appeal No.1402 of 2011
Jitendra S/o Prakash Goswami
Vs.
State of Madhya Pradesh
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Shri Nilesh Manore and Shri Yogesh Dwivedi, learned counsel
for the appellants.
Shri Amit Singh Sisodia, learned Govt.Advocate, for the
respondent/State.
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Reserved on: 7/12/2021
JUDGMENT
(Delivered on 25/1/2022)
Satyendra Kumar Singh, J.,
Both the above appeals arise out of common judgment,
therefore, these are being decided by a common judgment.
These appeals are filed under Section 374 of Code of
Criminal Procedure (for short be called as "Cr.P.C.") against the
judgment dated 3.11.2011 passed by the learned Court of 5 th
Addl.Sessions Judge, Indore in S.T.No.771/2009 convicting the
appellants Sandeep and Jitendra both for the charges punishable
Cr.Appeal Nos.27/2012 & 1402/2011
under Section 302 read with Section 34 of Indian Penal Code (for
short be called as "IPC") and sentenced to undergo Life
Imprisonment with fine of Rs.2,000/- each, in default of payment
of fine amount additional rigorous imprisonment for three months
each.
In addition to the aforesaid appellant Sandeep has been
convicted for the charges under Section 27 of Arms Act also and
sentenced to undergo rigorous imprisonment of three years with
fine of Rs.1,000/-, in default of payment of fine amount additional
rigorous imprisonment for three months.
2. The case of the prosecution in brief is as follows:-
(i) Deceased Mukesh and his wife complainant Prabha
were having a tailoring shop named M/s Jay Tailors in
Nagin Nagar, Police Station Aerodrome, Indore. In front of
their shop there was a CD shop of the appellant Sandeep.
One month before the date of incident deceased Mukesh
and appellant Sandeep had an altercation about which
appellant Sandeep lodged complaint against the deceased.
On the date of incident i.e. on 2.4.2009 at about 21.00 PM
appellant Sandeep alongwith appellant Jitendra came to the
shop of the deceased and thereafter appellant Sandeep fired
on deceased with 0.315 bore country made pistol (Kata).
Deceased ran away towards house of R.D.Thakur bearing
No.29-D, Nagin Nagar and entered into the corridor of
aforesaid house. Appellants chased him and dragged him
towards road. Thereafter, started assaulting him with pieces
of tiles and bricks on his head, face, neck and other vital
parts. Upon hearing the noise of gun shot deceased's wife
complainant Prabha came out from her house, which is
situated near her shop and reached the spot. She tried to
save her husband deceased, but appellants pushed her aside.
Cr.Appeal Nos.27/2012 & 1402/2011
(ii) Head Constables Sanjay Bhadoriya, Vijendra
Sharma, Kailash Mishra and Constables Rajbhan Singh,
Gayadeen also reached the spot upon hearing the noise of
gun shot and found appellant Sandeep assaulting deceased
with pieces of tiles and appellant Jitendra caught hold the
deceased. They caught hold appellant Sandeep, while
appellant Jitendra flew away from the spot of the scene. On
the same day at about 21.05 PM Head Costable Shobharam
after getting the information about the incident from control
room registered Rojnamcha Sanha No.116(A) dated
2.4.2009 Ex.P/10 at Police Station Aerodrome, Indore and
sent the Police party towards the place of incident. On
being telephonically informed by the Head Constable
Shobharam from P.S., Aerodrome and also by Constable
Rajbhan from the place of incident, Inspector Navratan
Singh rushed to the spot. Complainant Prabha and
deceased's brother Santosh took the deceased to District
Hospital, Indore where he was declared dead.
(iii) On being informed by the Compounder of the
hospital at about 21.30 PM, Head Constable Shobharam
registered the Marg Intimation report Ex.P/3. At about
21.55 PM, ASI Shyam Babu Katare registered the FIR
Ex.P/8, on the report of deceased's wife complainant
Prabha. Complainant alongwith deceased's brother Santosh
returned to the place of incident, where Inspector Navratan
Singh in front of them made search of the body of appellant
Sandeep and found 0.315 bore country made pistol (Katta)
(Article A/2) alongwith one fired cartridge (Article A/3).
He seized the same as per seizure memo Ex.P/10, arrested
appellant Sandeep as per arrest memo Ex.P/12. Thereafter,
seized the blood stained cloth worn by appellant Sandeep as
per seizure memo Ex.P/11, prepared spot map Ex.P/9. He
also seized plain and blood soaked cotton, blood stained
pieces of tiles and bricks as per seizure memo Ex.P/1.
Thereafter, in the intervening night on 3.4.2009 at about
Cr.Appeal Nos.27/2012 & 1402/2011
4.00 AM made entry about the whole proceedings done by
him in the Rojnamcha bearing No.138A Ex.P/8 at P.S.,
Aerodrome.
(iv) On the next day i.e. on 3.4.2009 ASI Shyam Babu
Katare after filling Safina form Ex.P/14 called the
witnesses and prepared Naksha Panchayatnama Ex.P/13 of
the dead body of the deceased at District Hospital, Indore.
Vide letter Ex.P/17 sent the same to District Hospital,
Indore for postmortem examination, where on the same day
at about 13.25 PM Dr. Bharat Prakash conducted the
postmortem of deceased's body. He found several injuries
on deceased's head, face and other parts of body alongwith
a gun shot oval shaped lacerated wound measuring 1.6 cm.
X 1.3 cm. obliquely vertical on his chest, around which
tattooing was found present, which was spread in the area
measuring 20 cm. X 10 cm. The aforesaid wound tracked
26 cm. with cavity effect through right upper middle lobe
ends. A bullet was found between 11th and 12th ribs and
muscles. He prepared postmortem report Ex.P/2 and opined
that death of deceased occurred due to shock, hemorrhage
and excessive bleeding as a result of multiple injuries found
on his body within 24 hours from the time of postmortem.
He sealed the viscera and bullet found from the body of the
deceased and handed over the same to Constable Ankit
alongwith specimen seal, which were seized as per seizure
memo Ex.P/4.
(v) Inspector Navratan Singh arrested appellant Jitendra
as per arrest memo Ex.P/7. Vide letter Ex.P/19 sent the
seized articles to FSL, Sagar and after completion of
investigation filed the chargesheet before the Court of
Judicial Magistrate First Class, Indore, who committed the
same to the Court of Sessions Judge, Indore.
3. Learned trial Court considering the material prima-facie
available on record framed the charges under Section 302 read
Cr.Appeal Nos.27/2012 & 1402/2011
with Section 34 of IPC and Section 25/27 of Arms Act against the
appellant Sandeep, while charges under Section 302 read with 34
of IPC against the appellant Jitendra. Both the appellants abjured
guilt and prayed for trial. In their statements recorded under
Section 313 of Cr.P.C., they pleaded their false implication in the
matter and have examined two witnesses namely; Bhawani (DW-
1) and Ajay Pawar (DW-2) in their defence.
4. Learned trial Court after appreciating the oral as well as
documentary evidence available on record convicted appellants
Sandeep and Jitendra both for the offences punishable under
Section 302 read with Section 34 of IPC and appellant Sandeep
for the offence punishable under Section 27 of Arms Act and
sentenced them as stated in para 1 of the judgment. Being
aggrieved by the said judgment of conviction and order of
sentence, appellants have preferred these two appeals for setting
aside the impugned judgment and discharging them from the
charges framed against them.
5. Learned counsel for both the appellants have raised
common contention that impugned judgment passed by learned
trial Court is contrary to law and facts on record. All independent
eye-witnesses have turned hostile and not supported the
prosecution story. Statement of deceased's wife Prabha and
deceased's brother Santosh, Head Constable Sanjay Bhadoriya,
Constables Rajbhan and Gayadeen, ASI Vijendra Sharma and
Head Constable Kailash Kumar are inconsistent on material issues
and their presence on the spot at the time of incident is not proved.
Cr.Appeal Nos.27/2012 & 1402/2011
Appellants were not found present on the spot and were arrested
after the incident. Ocular and medical evidences are also
inconsistent. The prosecution was unable to prove complete chain
of circumstances, therefore, appellants cannot be held guilty and
findings with regard to involvement of the appellants in the crime
is not sustainable. Thus, impugned judgment of conviction and
order of sentence deserves to be set aside and appellants may be
acquitted from the charges framed against them.
6. Per contra, learned counsel for the respondent/State while
supporting the impugned judgment of conviction and order of
sentence submits that judgment so passed by the trial Court is
based on proper appreciation of evidence available on record.
Deceased's wife Prabha, brother Santosh alongwith other eye-
witnesses namely; Sanjay Bhadoriya, Rajbhan Singh, Gayadeen,
Vijendra Sharma and Kailash Kumar Mishra have fully supported
the prosecution story and prosecution has proved its case beyond
reasonable doubt, therefore, confirming the judgment of
conviction and order of sentence, both the appeals filed by
appellants deserve to be dismissed.
7. We have heard the parties at length and perused the record.
8. This case is based on direct as well as circumstantial
evidence. Prosecution has examined Ajay (PW-5), Sonu (PW-6),
Prabha (PW-13), Sanjay Bhadoriya (PW-14), Rajbhan Singh (PW-
15), Gayadeen (PW-16), Santosh (PW-17), Sitaram (PW-19),
Vijendra Sharma (PW-23), Kailash Kumar Mishra (PW-24) and
Dinesh (PW-25) as eye-witnesses alongwith other witnesses and
Cr.Appeal Nos.27/2012 & 1402/2011
exhibited as many as 21 documents in its support.
9. Independent witnesses Ajay (PW-5), Sonu (PW-6), Sitaram
(PW-9) and Dinesh (PW-25) have not supported the prosecution
story and have been declared hostile, while deceased's wife Prabha
(PW-13), brother Santosh (PW-17) and Police officials Head
Constable Sanjay Bhadoriya (PW-14), Constables Rajbhan Singh
(PW-15) and Gayadeen (PW-16), ASI Vijendra Sharma (PW-23),
Head Constable Kailash Kumar Mishra (PW-24) have supported
the prosecution story. Appellants have challenged their presence
on the spot at the time of incident, but they have not challenged
the fact that on the date of incident deceased was assaulted by gun
shot as well as by pieces of tiles and bricks. During cross-
examination of aforesaid eye-witnesses it has been suggested on
behalf of the appellants that deceased was having criminal record
and used to extort money from others, due to which he was
assaulted by unknown person.
10. Babulal (PW-1) deposed that on the date of incident at
about 21.00 PM he alongwith deceased's wife took injured
deceased from the place of incident to District Hospital, Indore in
his autorikshaw bearing No.MP-09-T-3031. Deceased's wife
Prabha (PW-13) deposed that her husband deceased was declared
dead there. Head Constable Shobharam (PW-4) deposed that on
the same day i.e. on 2.4.2009 at about 21.30 PM after receiving
the information from Jigar Singh, Compounder, District Hospital,
Indore, he registered Marg Intimation Report Ex.P/3 about the
death of the deceased. ASI Shyam Babu Katare (PW-21) deposed
Cr.Appeal Nos.27/2012 & 1402/2011
that on the next day i.e. on 3.4.2009 after preparing Naksha
Panchayatnama Ex.P/13, he vide application Ex.P/17 sent the dead
body of the deceased for postmortem examination.
11. Dr. Bharat Prakash (PW-3) deposed that on the same day
i.e. on 3.4.2009 at about 13.25 PM he conducted the postmortem
of the dead body of the deceased and found in all fifteen injuries,
out of which twelve injuries were caused by hard and blunt object,
while two injuries were caused by hard and sharp object and one
injury was caused by gun shot. He specifically stated and reported
in his postmortem report Ex.P/2 that almost all the injuries except
gun shot injury were found on head, fore head, face, neck and
other vital parts of the deceased's body, while oval shaped
obliquely vertical gun shot injury measuring 1.6 cm. X 1.3 cm.
tracked 26 cm. with cavity effect through right upper middle lobe
ends, around which tattooing spread in the area 20 cm. X 10 cm.
was found on his chest. He further stated and reported that a bullet
was found between 11 th and 12th ribs and muscles of his body. He
further stated and reported that death of the deceased was occurred
due to shock, hemorrhage and excessive bleeding as a result of
multiple injuries found on his body within 24 hours from the time
of postmortem.
12. Appellants have not challenged the aforesaid fact, hence
this fact is not in dispute that on the date of incident at about 21.00
PM deceased was assaulted by gun shot, hard and blunt as well as
hard and sharp object and sustained grievous injuries as mentioned
in the postmortem report Ex.P/2 and he died due to shock,
Cr.Appeal Nos.27/2012 & 1402/2011
hemorrhage and excessive bleeding as a result of aforesaid
multiple injuries found on his body. During cross-examination of
I.O., Navratan Singh (PW-26) as well as seizure witnesses
Punjabrao Deshmukh (PW-2) and also neighbor of R.D.Thakur,
Babulal (PW-1), who took the deceased in injured condition from
the place of incident to District Hospital, Indore in his autorikshaw
bearing No.MP-09-T-3031. Appellants have not challenged the
fact that after the incident plain cotton alongwith blood soaked
cotton and pieces of blood stained tiles and bricks were seized
from the place of incident, which is near to R.D.Thakur's house
bearing No.29-D, Nagan Nagar, Indore as per seizure memo
Ex.P/1. Therefore, this fact is also found proved that after
sustaining gun shot injury deceased was assaulted at the place of
incident as shown by the prosecution in its spot map Ex.P/9.
13. So far as involvement of the appellants in the aforesaid
crime is concerned, deceased's wife complainant Prabha (PW-13)
deposed that on the fateful day since 7.30 PM to 9.00 PM, she was
present in her husband deceased's shop, situated near Nagin
Square, P.S., Aerodrome and just before incident she returned to
her house, which is situated near the above shop. She deposed that
after hearing the noise when she came out from her house, she saw
her husband deceased coming out of the shop and running towards
road and appellants were chasing him. She followed them and then
saw appellants were dragging deceased from R.D.Thakur house's
corridor towards road and thereafter they started assaulting on his
head and face by pieces of tiles and bricks. She tried to save him,
Cr.Appeal Nos.27/2012 & 1402/2011
but they pushed her aside.
14. Deceased's brother Santosh (PW-17) also deposed similar
type of story and stated that at the time of incident he alongwith
deceased's son was present at deceased's house. After hearing
noise he came out from house, reached the spot and saw appellant
Sandeep assaulting deceased, while appellant Jitendra caught hold
the deceased. Statements of both the above witnesses with regard
to their presence at deceased's house before the incident as well as
at the place of incident at the time of incident are not consistent.
15. Complainant Prabha (PW-13), in her examination-in-chief,
as mentioned above deposed that she herself followed the
appellants, who were chasing the deceased and found them
dragging deceased from the corridor of the house of R.D.Thakur
towards road. She in para 13 of her cross-examination deposed
that she reached the spot when appellants were dragging deceased
from corridor towards road, while in para 46 of her cross-
examination she deposed that after seeing mob near deceased's
shop, she went there and thereafter reached to the place of
incident.
16. Deceased's brother Santosh (PW-17), in his examination-in-
chief, deposed that on the date of incident before incident he went
to the deceased's house and at the time of incident he was present
at deceased's house alongwith deceased's son. He stated in para 9
of his cross-examination that when he reached deceased's house
neither deceased was there nor his wife complainant Prabha was
there. He further deposed that after hearing the noise when he
Cr.Appeal Nos.27/2012 & 1402/2011
came out from the deceased's house, he saw the mob. He further
deposed that when he reached the spot he saw appellant Sandeep
was assaulting deceased, while appellant Jitendra caught hold him.
He admitted in para 12 of his cross-examination that he did not see
any incident on the shop of the deceased. He also admitted in para
19 of his cross-examination that when he reached the spot, he
found his brother deceased lying in front of the house of
R.D.Thakur i.e. the place of incident and he alongwith deceased's
wife complainant Prabha took the deceased to District Hospital,
Indore, while Prabha (PW-13) in para 23 and 24 of her cross-
examination has specifically denied the aforesaid fact and stated
that she alongwith Om Patel took the deceased to District
Hospital, Indore in an auto-rickshaw and Om Patel was with her in
that auto-rickshaw. She stated that Santosh directly reached the
hospital. Both the above witnesses have nowhere stated about the
fact that how far was the place of incident from deceased's house
from where they reached the spot at the time of incident. I.O.,
Navratan Singh (PW-26) in his spot map Ex.P/9 has also not
shown the deceased's house, which is said to be near to deceased's
shop. He in para 23 of his cross-examination deposed that
deceased's house is situated towards back side of his shop and
there is a way from inside his shop to his house, which is contrary
to the statements of Prabha (PW-13) and Santosh (PW-17). From
the statement of Prabha (PW-13) and Santosh (PW-17) it appears
that deceased's house is situated towards East from Nagin Square,
where deceased's shop is shown in the spot map Ex.P/9.
Cr.Appeal Nos.27/2012 & 1402/2011
17. Prabha (PW-13) in para 20 of her cross-examination has
stated that deceased's shop is situated near Nagin Square, from
where, in opposite direction (i.e. in west direction) in the way
there is left turn and then after 4-5 shops R.D.Thakur's house is
situated, where appellants dragged and assaulted the deceased.
From the statements of Prabha (PW-13) and Santosh (PW-17) and
also from the perusal of the spot map Ex.P/9, it is clear that it was
not possible for any person to see the incident occurring in the
corridor of the house of R.D.Thakur from deceased's house or
shop. Statements of both the above witnesses are not consistent
neither on the point of their presence in the deceased's house
before incident nor on the spot at the time of incident. Their
statements are also not consistent on the point of time that as to
when they reached the spot and what was actually happening there
at that time. In the aforesaid circumstances, although presence of
deceased's wife Prabha on the spot just after the incident, is
proved, but it is doubtful that the incident happened in front of her
or deceased's brother Santosh and they saw the incident.
18. In this regard statements of other witnesses Head Constable
Sanjay Bhadoriya (PW-14), Constables Rajbhan Singh (PW-15)
and Gayadeen (PW-16), ASI Vijendra Sharma (PW-23), Head
Constable Kailash Kumar Mishra (PW-24) are also material.
Sanjay Bhadoriya (PW-14) deposed that when he alongwith other
aforesaid Police officials reached the spot appellant Sandeep was
assaulting deceased, while appellant Jitendra caught hold him. He
alongwith aforesaid Police officials surrounded appellant Sandeep,
Cr.Appeal Nos.27/2012 & 1402/2011
while appellant Jitendra fled away from the spot. He further
deposed that at that time deceased's wife also reached there.
Constables Rajbhan Singh (PW-15), Gayadeen (PW-16) and Head
Constable Kailash Kumar Mishra (PW-14) have also narrated the
same story, while ASI Vijendra Sharma (PW-23) deposed that at
the time of incident a lady was screaming. None of the above
witness has specifically deposed about the presence of Prabha and
Santosh on the spot, hence, this fact becomes more doubtful that
complainant Prabha (PW-13) and Santosh (PW-17) were present
on the spot at the time of incident and saw appellant assaulting the
deceased.
19. So far as presence of aforesaid Police officials namely;
Head Constable Sanjay Bhadoriya (PW-14), Constables Rajbhan
Singh (PW-15) and Gayadeen (PW-16), ASI Vijendra Sharma
(PW-23) and Head Constable Kailash Kumar Mishra (PW-24) on
the spot at the time of incident is concerned, complainant Prabha
(PW-13), although in her examination-in-chief has stated that at
the time of incident some people reached the spot and slapped the
appellants, but her above statement is contrary to her own earlier
statement Ex.D/5 recorded on the date of incident under Section
161 of Cr.P.C. She neither in her FIR Ex.D/8 nor in her earlier
aforesaid statement Ex.D/5 had stated anything about the presence
of any such people or Police officials on the spot at the time of
incident. Statements under Section 161 of Cr.P.C.of the aforesaid
Police officials namely; Head Constable Sanjay Bhadoriya (PW-
14), Constables Rajbhan Singh (PW-15) and Gayadeen (PW-16),
Cr.Appeal Nos.27/2012 & 1402/2011
ASI Vijendra Sharma (PW-23), Head Constable Kailash Kumar
Mishra (PW-24) were recorded about a month after the incident
i.e. on 1.5.2009 and I.O. Inspector Navratan Singh (PW-26) has
not shown any reason for the delay. Statements of the aforesaid
Police officials are contradictory on the point of chasing of
appellant Jitendra. Some of them have stated that no one chased
him, while some naming others stated that they chased him. In the
aforesaid circumstances, although it is found proved that they
reached the spot, but it is doubtful that they reached the spot when
appellants were assaulting the deceased.
20. As it has been found proved that deceased's wife
complainant Prabha (PW-13) reached the spot just after the
incident and took her husband deceased to the District Hospital,
Indore and thereafter went to Police Station, Aerodrome and at
about 21.55 PM lodged FIR Ex.P/8, wherein names of appellants
were specifically mentioned. Head Constable Sanjay Bhadoriya
(PW-14), Constables Rajbhan Singh (PW-15) and Gayadeen (PW-
16), ASI Vijendra Sharma (PW-23), Head Constable Kailash
Kumar Mishra (PW-24) deposed that when they reached the spot,
they found appellant Sandeep there. I.O., Navratan Singh (PW-26)
deposed that after receiving the information from Police Station,
Aerodrome as well as from Constable Rajbhan Singh, he reached
the spot within 15-20 minutes and found appellant Sandeep
surrounded by Police officials. He further deposed that he
inspected the spot as well as deceased's shop. In the meantime,
complainant Prabha alongwith her brother-in-law Santosh reached
Cr.Appeal Nos.27/2012 & 1402/2011
there and he also received the copy of FIR Ex.P/8, then he
conducted search of the body of appellant Sandeep in front of
them. He seized a 0.315 bore country made pistol (Katta) (Article
2) alongwith a fired cartridge (Article 3) in left pocket of pant of
appellant Sandeep as per seizure memo Ex.P/10. He then arrested
appellant Sandeep in front of them as per arrest memo Ex.P/12.
Thereafter, seized his blood soaked pant and shirt (Article A/1) as
per seizure memo Ex.P/11. Complainant Prabha (PW-13) as well
as her brother-in-law Santosh (PW-17) both have supported the
aforesaid fact and stated that when they returned from the Police
Station, Police seized country made pistol alongwith fired
cartridge and appellant Sandeep's blood soaked pant and shirt
(Article A/1) from his possession in front of them. The aforesaid
fact finds support from the Rojnamcha Sanha bearing No.138(A)
dated 3.4.2009 Ex.D/8, wherein the same intervening night at
about 4.00 AM, I.O., Navratan Singh had written the whole
proceeding done by him on the spot, wherein it is specifically
mentioned that after the incident when he reached the spot
conducted search of appellant Sandeep and found 0.315 bore
country made pistol (Katta) alongwith fired cartridge. Then, he
seized the same alongwith appellant Sandeep's blood soaked
cloths.
21. The aforesaid facts have been challenged on behalf of
appellant Sandeep and a defence has been taken that he was called
from his house and then arrested. Defence witness Bhawani (DW-
1) has supported the aforesaid fact and stated that in the
Cr.Appeal Nos.27/2012 & 1402/2011
intervening night at about 11.30 PM Police took appellant
Sandeep from his house in front of him. During cross-examination
of both the witnesses of seizure and arrest memo i.e. Prabha (PW-
13) and Santosh (PW-17), it is nowhere suggested on behalf of
appellant Sandeep that when Police took him from his house
witness Bhawani (DW-1) was present there, therefore, his
statement is not reliable. Although, complainant Prabha (PW-13)
has stated in her cross-examination that she signed the papers
without going through the same, but there is nothing in the
statement of Santosh (PW-17) and I.O., Navratan Singh (PW-26)
on the basis of which their statements on the point of arrest of
appellant Sandeep and seizure of 0.315 bore country made pistol
(Katta) alongwith fired cartridge and his blood soaked cloths can
be doubted or disbelieved.
22. It has been argued on behalf of appellant Sandeep that
statements of Police officials Head Constable Sanjay Bhadoriya
(PW-14), Constables Rajbhan Singh (PW-15) and Gayadeen (PW-
16), ASI Vijendra Sharma (PW-23), Head Constable Kailash
Kumar Mishra (PW-24) are not consistent with the statement of
I.O., Navratan Singh (PW-26) on the point of time of arrest of
appellant Sandeep and seizure from him, therefore, the same
cannot be relied upon. It is true that aforesaid Police officials
stated in their statements that when I.O., Navratan Singh (PW-26)
reached the spot, he immediately conducted search of the body of
appellant Sandeep and seized country made pistol (Katta)
alongwith fired cartridge and arrested him, but they have not
Cr.Appeal Nos.27/2012 & 1402/2011
specifically mentioned the fact that at what time I.O., Navratan
Singh did the aforesaid proceeding. I.O., Navratan Singh (PW-26)
stated that he reached the spot within 15-20 minutes after
receiving the information of the incident at 21.05 - 21.10 hours
i.e. he reached the spot at about 21.30 - 21.45 PM and conducted
search of the body of appellant Sandeep and thereafter arrested
and seized the Articles in between 22.30 - 22.50 PM. His above
statement is supported by the statement of Prabha (PW-13) and
Santosh (PW-17) as well as Rojnamcha Sanha bearing No.138(A)
dated 3.4.2009 Ex.D/8. Gap of time as stated by other Police
officials is not so long due to which their statements said to be
contradictory to the statement of I.O., Navratan Singh (PW-26) on
the point of time of arrest of appellant Sandeep. Hence, it is found
proved that just after the incident appellant Sandeep was found on
the spot or near the spot having 0.315 bore country made pistol
(Katta) (Article A/2) alongwith fired cartridge (Article A/3), his
blood soaked pant and shirt (Article A/1).
23. As per FSL report Ex.P/20 and statements of Head
Constable Irfan (PW-18) and his report Ex.P/15 seized country
made pistol (Katta) (Article A/2) was found functional. As per
FSL report Ex.P/20 seized fired cartridge was also found fired
from the seized country made pistol. FSL report Ex.P/20 also
specifically shows that bullet found in the body of deceased
Mukesh during his postmortem was fired by the fire arm similar to
that of seized country made pistol (Article A/2). FSL report
Ex.P/20 also shows that blood stains found on appellant Sandeep's
Cr.Appeal Nos.27/2012 & 1402/2011
cloths (Article A/1), were of human blood. Appellant Sandeep has
nowhere explained the reason as to how and when his seized pant
and shirt contained the aforesaid human blood. In the aforesaid
circumstances learned trial Court has not committed any error in
convicting appellant Sandeep for the offences punishable under
Section 302 read with Section 34 of IPC and Section 27 of the
Arms Act.
24. So far as appellant Jitendra is concerned, he has been made
accused on the basis of ocular evidence. It has already been stated
that all independent eye-witnesses namely Ajay (PW-5), Sonu
(PW-6), Sitaram (PW-9) and Dinesh (PW-25) have resiled from
their earlier statements recorded under Section 161 of Cr.P.C. and
have been turned hostile and not supported the prosecution story.
Presence of deceased's wife Prabha (PW-13) just after the incident
has been found proved, but her presence during the incident is
doubtful. Presence of deceased's brother Santosh (PW-17)
alongwith Police officials namely; Head Constable Sanjay
Bhadoriya (PW-14), Constables Rajbhan Singh (PW-15) and
Gayadeen (PW-16), ASI Vijendra Sharma (PW-23), Head
Constable Kailash Kumar Mishra (PW-24) during the incident
have also been found doubtful. Statements of aforesaid Police
officials are contradictory on the point of chasing appellant
Jitendra. Some of them have stated that no-one had chased
appellant Jitendra, while some naming others stated that they
chased him, which creates doubt about the presence of appellant
Jitendra on the spot. Prosecution has neither seized his blood
Cr.Appeal Nos.27/2012 & 1402/2011
soaked cloths or any material indicating his involvement in the
crime, therefore, only on the basis of ocular evidence of
complainant Prabha (PW-13) it is not save to hold guilty appellant
Jitendra for the offence punishable under Section 302 read with
Section 34 of IPC.
25. It is admitted fact that before the incident appellants
Sandeep and Jitendra lodged the FIR against deceased Mukesh for
the offence punishable under Section 307 of IPC, in which
deceased remained in custody for about twenty days, therefore,
probability of implicating appellant Jitendra in the crime on the
basis of doubt cannot be ruled out. Hence, prosecution has proved
its case beyond reasonable doubt against appellant Sandeep, but
failed to prove its case beyond reasonable doubt against appellant
Jitendra.
26. Thus, in view of the aforesaid discussion, this Court does
not find any illegality, perversity and arbitrariness in the finding
recorded by learned trial Court while convicting the appellant
Sandeep, hence Cri.Appeal No.27/2012 is dismissed and the
impugned judgment of conviction and order of sentence passed by
learned trial Court in respect of appellant Sandeep is hereby
affirmed.
27. Cri.Appeal No.1402/2011 filed by appellant Jitendra is
hereby allowed and he is acquitted from the charge punishable
under Section 302/34 of IPC. He be released forthwith, if not
required in any other case.
Record of the trial Court be sent back.
Cr.Appeal Nos.27/2012 & 1402/2011
Let copy of this judgment be retained in the record of
Cr.Appeal No.1402/2011.
(Vivek Rusia) (Satyendra Kumar Singh)
Judge Judge
25-1-2022 25 -1-2022
Patil
Digitally signed
by SHAILESH
PATIL
Date: 2022.01.29
17:41:50 +05'30'
Cr.Appeal Nos.27/2012 & 1402/2011
HIGH COURT OF MADHYA PRADESH
BENCH INDORE
Cr.Appeal No.27 of 2012
Sandeep S/o Shiv Kumar Agnihotri
Vs.
State of Madhya Pradesh
xxxxxxxx
Cr.Appeal No.1402 of 2011
Jitendra S/o Prakash Goswami
Vs.
State of Madhya Pradesh
JUDGMENT
(Heard on 7.12.2021)
(Satyendra Kumar Singh)
Judge
Judgment for consideration
(Vivek Rusia)
Judge
Post for 25 /1/2022.
(Satyendra Kumar Singh)
Judge
25/1/2022.
Cr.Appeal Nos.27/2012 & 1402/2011
Cr.A.No.1402/2011
7.12.2021
Shri Nilesh Manore, learned counsel for the appellant.
Shri Amit Singh Sisodia, learned Govt.Advocate, for the
respondent/State.
Arguments heard. Reserved for orders.
(Vivek Rusia) (Satyendra Kumar Singh)
Judge Judge
25.01.2022
Judgment passed separately, signed and dated.
(Vivek Rusia) (Satyendra Kumar Singh)
Judge Judge
Cr.Appeal Nos.27/2012 & 1402/2011
Cr.A.No.27/2012
7.12.2021
Shri Yogesh Dwivedi, learned counsel for the appellant.
Shri Amit Singh Sisodia, learned Govt.Advocate, for the
respondent/State.
Arguments heard. Reserved for orders.
(Vivek Rusia) (Satyendra Kumar Singh)
Judge Judge
25.01.2022
Judgment passed separately, signed and dated.
(Vivek Rusia) (Satyendra Kumar Singh)
Judge Judge
