Brajendra @ Gabbar vs State Of Madhya Pradesh

CONVICTION,SENTENCE

U/s 302/ 34 of IPC,"R.I. for life and fine of Rs.3000/-; in default of fine R.I. for 6

months.

U/S 25(1-B) (A) of the Arms

Act","R.I. for 3 years and fine of Rs.1000/-; in default of fine R.I. for 3

months.

U/S 3/27 of Arms Act,"R.I. for 3 years and fine of Rs.1,000/-; in default of fine R.I. for 3

months.

has stated that on the date of the incident he saw that Rammu Raikwar and Gabbar were engaged in an altercation relating to water. At that time,",

Ramsevak Vishwakarma tried to intervene and separated both the persons and thereafter, Gabbar Rajput went to his home and this witness i.e. Pappu",

@ Ajit Jain, Pw8 Sudama Vishwakarma, deceased Ramsevak Vishwakarma and Rammu Jatav sat on the Chabootra and after 10 to 15 minutes,",

appellant Gabbar Rajput and Santosh Mishra came on the spot with pistols in their hands and started threatenning Rammu Raikwar. Again Ramsevak,

tried to intervene and a gun shot was fired by appellant Gabbar Rajput and Santosh Mishra which hit Ramsevak Vishwakarma. Ramsevak,

Vishwakarma was taken to the hospital and soon thereafter, appellant also came on the spot and seizure memo was prepared in respect of the blood",

stained soil and the slippers of Ramsevak Vishwakarma.,

P.W.2 Ashok Kumar Vishwakarma is also a resident of the same locality. He has also seen the incident and has stated that initially Gabbar fired a,

shot at Rammu Raikwar and thereafter, he also shot at Rammu Vishwakarma. He has further stated that deceased Ramsevak Vishwakarma is also",

known as Rammu Vishwakarma. He has further stated that Santosh Mishra had also fired a shot. He has specifically stated that Santosh Mishra shot,

the deceased on his neck.,

P.W.5 Rammu Raikwar is a material witness, who is not only an eye-witness but the entire incident had taken place because of him and appellant",

Brijendra @ Gabbar’s dispute. He has clearly stated that on the date of the incident when Gabbar was quarreling with him over water and was,

abusing him, at that time, deceased Ramsevak , intervened and soon thereafter Gabbar came to the spot along with Santosh Mishra with guns in their",

hands and when he saw the gun, he tried to run away from the spot, however, he fell down in front of Ashok Vishwakarma’s shop and behind",

him. Ramsevak also ran but a gun shot fired by Gabbar hit Ramsevak on his left shoulder and subsequently, Santosh Mishra also came with country",

made pistol in his hand and he also shot Ramsevak which hit him on his right shoulder.Ramsevak was taken to the hospital by Kanchedi, Tulsiram",

(auto driver) and Ramsevak’s brother Pw6 Rohan. This witness has clearly stated that although a shot was also fired at him but it did not hit him.,

This witness has been cross-examined in detail but nothing substantive could be extracted in his cross-examination. It is also seen in his cross-,

examination that no specific defence has been set up by appellant Gabbar except the fact that he has been falsely implicated.,

P.W.6 Rohan Vishwakarma is the person who had taken the deceased Ramsevak Vishwakarma to the hospital. So far as the incident is,

concerned, he came to know from others only. He had reached the spot immediately after the incident hence his knowledge about the incident cannot",

be brushed aside lightly.,

P.W.8 Sudama Prasad Vishwakarma, also an eye witness is the person who had lodged Dehati Nalishi (Ex.P/7) on the spot only. He is also a",

witness to the seizure of various articles from the spot ( Ex.P/1) as also the spot map (Ex.P/8). He has repeted the same prosecution story as has,

been narrated by the other eye witnesses.,

P.W.9 Jagdish Patel is an independent witness. According to him, while he was having a cup of tea at Shyamu’s Hotel, he saw that in front of",

hotel Gabbar and Santosh Mishra came armed with country made pistols in their hands. Ramsevak was shot by Gabbar which hit him on his right,

chest and thereafter, Santosh Mishra also fired at him, which hit him on the left side of his neck.",

P.W.11 Rajesh Kumar Vishwakarma also knows the appellant and the deceased as the deceased was his maternal uncle. According to him, on",

the date of the incident when he was having his lunch, at that time, he heard some hue and cry and came out and he had also seen appellant Gabbar",

Rajput and Santosh Mishra coming on the spot with country made pistols, which hit Ramsevak Vishwakarma.",

P.W.13 Vimlesh Yadav is an independent witness. He is a witness to the memo under Section 37 of the Evidence Act as also the seizure memo,

Ex. P/11. Although he has stated that the statement given by appellant Gabbar vide Ex.P/11 was not given before him but he has admitted his,

signatures on the said memo as also the recovery memo Ex.P/12. A specific question was put to him in his cross-examination that no such recovery,

has been made at the instance of Gabbar to which he has denied.,

Similarly, P.W.14 Bunti @ Manish is also a witness to the aforesaid memos Ex.P/11 and Ex.P/12. Although he has stated that the appellant has",

not given any statement leading to the recovery but he has admitted the recovery part of the investigation. In his cross-examination, although he has",

admitted that the memorandum under Section 27 of the Evidence Act was not recorded before him and has not admitted his signature on the said,

memorandum. In his cross-examination also he has stated that memorandum Ex.P/11 was not prepared before him nor it was signed by him, however,",

he has also admitted that the appellant got recovered country made pistols and two cartridges below railway sleeper.,

P.W.17 Dr. Subhash Jain stated that he had carried out x-ray of the deceased as he had received two gun shot injuries and had found in the x-ray,

that in the right lower side of the chest, there were two bullets.",

P.W.18 G.P. Namdeo, ASI is witness to Dehati Nalishi (Ex.P/17).",

P.W.19 Tulsiram, auto driver, has not supported the case of the prosecution, however, he has admitted that he saw that accused Santosh Mishra",

was beating Ramsevak with kicks and also held a gun in his hands. He also saw Gabbar with pistol in his hands running after Ramsevak. Thus,",

although he has not supported the entire prosecution story but has substantiated the fact that at the time of the incident, appellant Gabbar and Santosh",

Mishra held guns in their hands and were running after the deceased Ramsevak and Rammu Raikwar.,

P.W.20 Ambar Sahu is also an eye-witness to the incident having a nearby shop. He has also narrated the same story.,

P.W.21 Ashok Pandey is the investigating officer. He has stated that on 28.8.2003 at the instance of Gabbar a country made pistol and two,

numbers of .315 bore cartridges were recovered vide Ex.P/11 dated 28.8.2003 and Ex.P/12 dated 29.08.2003 from below the iron sleeper of railway,

track. He has further submitted that vide Ex.P/19, appellant was arrested on 23.08.2003. He has further submitted that he has also got examined",

articles seized from the spot vide Ex.P/21 and the FSL report which was received back is Ex.P/22. In the FSL report, it is stated that the bullets",

recovered from the body of the deceased could be fired from a weapon similar to the one recovered at the instance of the appellant.,

P.W.22 O.P. Sharma is a clerk in the office of District Magistrate, Sagar, who has proved Ex.P/23, which is sanction to prosecute under the",

provisions of the Arms Act.,

After carefully going through the depositions of the witnesses as also the various documents including FSL report, this Court finds that the",

prosecution has been able to bring home the guilt of the appellant beyond reasonable doubt as not only the incident has been witnessed by many,

witnesses who have remained unshaken in the Court but the FSL report Ex.P/22 also proves that the shots were fired from country made pistol, which",

was recovered at the instance of the appellant. So far as the recovery of the country made pistol is concerned, it has been proved bythrough",

P.W…13 Vimlesh Yadav although he has stated that Ex.P/11 memo under Section 27 of the Evidence Actwas not prepared before him but he has,

admitted his signature on the same and thus declared hostile on this issue but he has admitted his signature on the aforesaid memo and has further,

admitted the recovery of the country made pistol by the appellant vide Ex.P/12. So far as the testimony of such hostile witness is concerned, it would",

be fruitful to refer to the judgement rendered by the Apex Court in the case of Ramesh Harijan v. State of U.P., (2012) 5 SCC 777, the relevant paras",

of the same read as under :-,

“23. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to,

treat him as hostile and cross-examine him.,

“6. … The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the,

extent that their version is found to be dependable on a careful scrutiny thereof.â€​,

[Vide Bhagwan Singh v. State of Haryana Rabindra Kumar Dey v. State of Orissa; Syad Akbar v. State of Karnataka and Khujji v. State of,

M.P. (SCC p. 635, para 6).]",

In State of U.P. v. Ramesh Prasad Misra (SCC p. 363, para 7) this Court held that evidence of a hostile witness would not be totally rejected if",

spoken in favour of the prosecution or the ac-cused but required to be subjected to close scrutiny and that por-tion of the evidence which is consistent,

with the case of the prosec-ution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of,

Maharashtra, Gagan Kanojia v. State of Punjab; Radha Mohan Singh v. State of U.P., Sarvesh Narain Shukla v. Daroga Singh and Subbu Singh v.",

State.,

“83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts",

thereof which are admissible in law, can be used by the prosecution or the defence.â€​",

(emphasis supplied),

Under these circumstances, this Court has no hesitation to hold that no illegality has been committed by the learned Judge of the trial Court in",

convicting the appellant under Sections 302/ 34 of IPC, Section 25(1-B) (A) and Section 3/27 of Arms Act and as such the appeal being devoid of",

merits is liable to be and is hereby dismissed.,

C.C. As per rules.,