Madhya Pradesh High Court
Damodar vs The State Of Madhya Pradesh on 15 May, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 15 th OF MAY, 2024
CRIMINAL APPEAL No. 455 of 2007
BETWEEN:-
DAMODAR S/O JAMUNA PRASAD BAGRI, AGED ABOUT
49 YEARS, VILL. MOHARI P.S. NAGOD DIST. SATNA
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI VIKASH JYOTISHI - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH TH. P.S DIST. SATNA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AJAY TAMRAKAR - PANEL LAWYER)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
This appeal has been filed against the judgement and findings dated
29/01/2007 passed by Fifth Additional Sessions Judge, Satna in ST
No.307/2004 convicting the appellant under Section 307 of IPC, RI for seven
years with fine of Rs.5,000/- with default stipulations.
2. The case of the prosecution in a nutshell is that on 02/11/2003
Sunil Tiwari met with an accident with a Jeep. Kedarnath Pandey (PW-4) and
others were going to the spot when they reached in front of appellant's house,
the appellant and other accosted them. The appellant fired a single shot with a
Katta that struck Kedarnath Pandey, thereafter, the appellant fled away from the
spot.
3. Learned counsel for the appellant contends that the report was
lodged with delay of four days and no explanation of delay has been explained.
Learned counsel submits that the in the Dying Declaration (Exhibit D/3), injured
Kedarnath Pandey (PW-4) stated that he was obstructed by Ramanuj Bagri and
he was made to lean towards wall of the house then the gunshot was fired by
Ramanuj Bagri and in next sentence, the injured stated that the gunshot was
fired by Damodar. It is contended by the counsel that this Dying Declaration
reflects that Ramanuj Bagri had fired the first gunshot and Damodar also fired
another gunshot but it is undisputed that injured Kedarnath Pandey sustained
only one gunshot injury, therefore, it is contended by the counsel that no
gunshot was fired by Damodar and the present appellant has been wrongly
implicated. It is further contended by the counsel that the witnesses have made
futile attempt to improve their version and thus, there are number of
contradictions and omissions as a ripple effect. It is also contended by the
counsel that the present appellant has been falsely implicated who is a
Government Servant and was never implicated in any of the offence.
4. Per contra, learned counsel for the respondent has opposed the
p rayer and submitted that considering the serious allegations against the
appellant, the appeal deserves to be dismissed. The trial Court after due sifting
of evidence has rightly convicted the appellant and thus supported the judgment
of conviction.
5. No other point is pressed or argued by the parties.
6. Heard rival submissions of the parties and perused the record.
7. A perusal of the record reflects that the FIR was lodged with an
allegations that on 02/11/2003 at around 07:05 PM when injured Kedarnath
Pandey (PW-4) heard about an accident, he was going along with other people
to the site of accident. When the injured reached the house of the appellant, the
appellant, Brijmohan Bagri, Mathuresh Bagri and Ramanuj Bagri restrained him
and then a gunshot was fired by the present appellant. As a result of which,
injury on the chest was sustained by the injured. In the present case the injured
stood in witness box as PW-4 and in paragraph 1 of his testimony, it is stated
that when he was going to the site of accident, Ramanuj Bagri, Damodar and
Mathuresh Bagri came and caught hold the injured and started manhandling him
then Ramanuj and Damohar went up to the terrace and remaining two accused
caught hold of the injured and then Damodar fired gunshot as a result of which
he sustained injury below the left shoulder. The second gunshot was fired by
Brijmohan, however, no injury was sustained by the injured. Son of injured was
also examined as PW-3 who in paragraph 1 of his testimony, narrated the same
version. However, in paragraph 3 of his cross-examination stated that no one
went to the terrace except the present appellant-Damodar, whereas, injured in
paragraph 1 of his testimony stated that Ramanuj and Damodar went to terrace.
Sukhendra Nath (PW-3) also stated in paragraph 4 of his testimony that the
length of wound was downwards.
8. The testimony of Dr. R.K. Gupta (PW-8) further reflects that an
attempt was made by Dr. R.K. Gupta (PW-8) to pull out the cartridge with the
help of probe but no cartridge could be located with the probe. The testimony
of Ravendra Nath (PW-5) also reflect that the present appellant fired a gunshot
which was sustained by the injured and the second gunshot was fired by
Brijmohan Bagri but as the injured set on the floor, he missed the second
gunshot. Thus, considering the testimonies of Sukhendra Nath (PW-3),
Kedarnath Pandey (PW-4) and Ravendra Nath (PW-5) it is evident that apart
from the injured, eye witnesses have also supported the prosecution story. The
testimony of Dr. R.K. Gupta (PW-8) clearly reveal that the gunshot wound was
found and there was no exit hole. The testimony of Dr. R.K. Gupta (PW-8) has
remain unrebutted. Considering the medical evidence as well as testimony of
eye witnesses and also the testimony of injured, the trial Court has convicted the
appellant. Apart from the aforesaid, testimony of Dr. Sanjay Maheshwari (PW-
13) also reveal that when the injured was brought to Birla Hospital, there was a
gunshot injury on the left side of the chest and upon X-ray, the entry of gunshot
was found just below the clavicle bone. In paragraph 5, Dr. Sanjay Maheshwari
(PW-13) further stated that taking into consideration the entry hole/point of the
bullet, it appeared that the gunshot was fired from the upper place. The
paragraph 5 of the testimony of Dr. Sanjay Maheshwari (PW-13) further
corroborates the testimony of Sukhendra Nath (PW-3), Kedarnath Pandey
(PW-4) and Ravendra Nath (PW-5). So far as Exhibit D/3 is concerned, the
injured said that he was obstructed by Ramanuj Bagri and the gunshot was fired
from the terrace and then in a next sentence, the injured said that the gunshot
was fired by Damodar Bagri and another shot was fired by Brajmohan,
therefore, considering the entire material, it is evident that the two gunshots have
been fired. One was fired by Damodar Bagri from the terrace and when the
injured was on the ground and he was made to lean towards the wall and he
sustained injury. The other gunshot was fired by Brijmohan and Brijmohan was
not on the terrace.
9. The gunshot fired by Brijmohan did not cause any injury to the
injured and the injury was sustained by the gunshot which was fired by the
present appellant. As regards Exhibit D/3, paragraphs 6 and 7 of cross-
examination of injured reveal that the injured specifically stated that he had told
the Doctor that one gunshot was fired by appellant and the other gunshot was
fired by Brijmohan. It is further evident from perusal of entire testimony that no
suggestion was made to the injured that the gunshot was in fact fired by
Ramanuj Bagri. As there is no such suggestion mentioned in the testimony of
Kedarnath Pandey (PW-4), accordingly, the stand which is being taken by the
appellant, is unsustainable.
10. Resultanlty, this Court is of the considered view that the trial
Court after due analysis of the evident and upon sifting thereof, has arrived at
conclusions and convicted the appellant for the aforesaid offence. Such
analysis and findings of the trial Court, in absence of any infirmity, do not
require any interference.
11. Hence, the present appeal stands dismissed.
(MANINDER S. BHATTI)
JUDGE
Astha
