Kamlendra Singh @ Pappu Singh vs State of Madhya Pradesh

N.K. Gupta, J.—The appellant has preferred this appeal against the judgment dated 12.11.1997 passed by learned Fourth Additional Sessions Judge, Rewa in S.T.No. 301/1994, whereby the appellant was convicted for offence punishable under sections 307 read with section 34 and 341 of IPC and sentenced for one year''s rigorous imprisonment with fine of Rs.500/-and one month''s simple imprisonment. In default of payment of fine, an additional 3 months'' rigorous imprisonment. Prosecution''s case, in short, is that, on 27.8.1993, the victim Atul Mishra (P.W.4) was going to fetch answer-book from his friend in Rewa city along with his friends Sandeep Singh Baghel (P.W.5), Virendra Singh Chandel (P.W.6) and Rahul Singh. At about 7.30 a.m. in the morning, when they reached near Kalewa hotel, the appellant and other co-accused persons had detained them. The accused Rajkumar Singh told him that you are not accepting the things and therefore, you would be killed. When the complainant enquired about the matter then, the appellant Kamlendra Singh gave a fire arm to Rajkumar Singh and directed him to kill the victim. Rajkumar Singh fired from that country made pistol. The complainant Atul Mishra sustained various injuries on his chest, abdomen etc. due to a number of pellets released from the gun. Blood oozed out from various wounds and his clothings were drenched with blood. The accused persons ran away from the spot. The victim was taken to the Police Station Civil Lines, Rewa, where had lodged an FIR, Ex.P/2. He had also informed that on the day before the incident, his friend Ramesh Singh informed him that those accused persons were searching him to assault him. The victim was sent to Government hospital, Rewa for his medico legal examination and treatment. Dr.Siddiqui (P.W.1) has examined the victim and gave his report, Ex.P/1. He found so many gun shot wounds to the victim and therefore, he was referred to surgical expert for further treatment. After due investigation, a charge-sheet was filed before the Chief Judicial Magistrate, Rewa who committed the case to Sessions Court and ultimately, it was transferred to Fourth Additional Sessions Judge, Rewa.

The appellant abjured his guilt. He has stated that all the eye witnesses were the friends of the victim Ajay Mishra and therefore, they told stories against the appellant without any basis. Before the incident, the appellant had lodged an FIR against Ajay Mishra and therefore, a counter report was lodged by him. In defence, Bhanwar Singh Baghel (D.W.1), Lalmani Pandey (D.W.2) and Phoolchand Chourasiya (D.W.3) were examined to show that they were present at the time of incident but, they did not see the appellant at the spot.

After considering the evidence adduced by the parties, learned Fourth Additional Sessions Judge, acquitted all other accused persons, whereas accused Rajkumar expired during the trial. The appellant was also acquitted from the charges of offence punishable u/s 294 of IPC but, convicted for offence punishable under sections 341 and 307 read with section 34 of IPC and sentenced as mentioned above.

I have heard the learned counsel for the parties at length.

Learned counsel for the appellant has submitted that it was accused Rajkumar, who assaulted the victim and fired from a gun but, there was no common intention of the appellant with the co-accused Rajkumar, who had expired during the trial and therefore, the appellant could not be convicted for offence punishable u/s 307 of IPC with help of section 34 of IPC. It was not a case of wrongful restraint. It is no where specifically established that the appellant was the person, who restrained the victim from moving ahead and therefore, the appellant could not be convicted for offence punishable u/s 341 of IPC. In alternate, it is requested that the appellant was not the main accused. He remained in custody for 21 days and he has suffered the trial as well as this appeal for more than 18 years and therefore, he may not be sent to jail again.

On the other hand, learned Panel Lawyer has submitted that the conviction and sentence directed by the trial Court appears to be correct and no interference is required.

After considering the submissions made by learned counsel for the parties and looking to the evidence adduced by the parties, it is to be considered that whether any offence u/s 307 of IPC is made out against the accused Rajkumar? Whether the appellant can be convicted for offence punishable u/s 307 of IPC with help of section 34 of IPC? Whether the appellant is wrongfully convicted for offence punishable u/s 341 of IPC? And whether the sentence passed against the appellant may be reduced?

Atul Mishra (P.W.4), Sandeep Singh Baghel (P.W.5) and Virendra Singh Chandel (P.W.6) were examined as eye witnesses. Sandeep Singh and Virendra Singh were friends of the victim Atul Mishra. Atul Mishra has stated that the appellant Kamlendra gave a country made pistol to the accused Rajkumar and directed him to assault and therefore, Rajkumar Singh fired from that gun upon the victim Atul Mishra. Sandeep Singh and Virendra Singh confirmed the story told by Atul Mishra. Sandeep Singh has stated about the presence of the appellant Kamlendra and accused Rajkumar only, whereas in FIR names of so many persons were mentioned. It is not a material contradiction. In the FIR, no overt-act of remaining accused persons was given and therefore, if the witnesses are not telling about their presence then, it makes no difference. Though witnesses Sandeep Singh and Virendra Singh were friends of the complainant but, no material contradiction is shown by the defence in their statements by which they could be disbelieved. It was suggested to Virendra Singh that he kept his eyes closed at the time of fire and he accepted that on hearing the sound of fire, his eyes were closed automatically but, he saw the entire incident. By such suggestion, no material contradiction could be claimed.

The defence has examined as many as three defence witnesses namely Bhanwar Singh (D.W.1), Lalmani Pandey (D.W.2) and Phoolchand Chourasiya (D.W.3) to show that the appellant Kamlendra Singh was not there at the spot but, looking to the evidence of these three witnesses, it appears that the witness Lalmani Pandey and Phoolchand Chourasiya could not see as to who assaulted the victim Atul Mishra and therefore, their evidence is not at all of any use. Bhanwar Singh, owner of Kalewa restaurant has stated that a quarrel took place between Rajkumar and Atul Mishra and thereafter, he went inside the shop. It was informed by his employees that a fire took place. Thereafter, again he went to the spot and saw that the victim Atul Mishra was injured, whereas Rajkumar had absconded from the spot. The evidence given by this witness appears to be concocted. There is no allegation that any quarrel or exchange of words took place between the victim Atul Mishra and Rajkumar. Under such circumstances, when the witness Bhanwar Singh was not present at the time of firing, he could not say about the overt-act of the appellant Kamlendra Singh. Under such circumstances, by examination of these witnesses, no doubt is created in the prosecution case.

The defence tried to show that Atul Mishra was taken to the house of his father, a renowned Advocate of the city. Both the facts were admitted by the witnesses examined from the side of the prosecution but, they have explained that the victim Atul Mishra could not meet his father due to his non-availability and therefore, the witnesses refused the suggestion that FIR was prepared by the father of Atul Mishra, who is a renowned Advocate. Under such circumstances, it is not established that the FIR was prepared by some law knowing person. The incident took place at 7.30 a.m. and FIR was lodged at 7.45 a.m. in the morning, therefore, it was lodged in due course. Also Dr. Siddiqui (P.W.1) has proved the injuries caused to the victim. There were 15 entry wounds on the chest of the victim where pellets had entered. Apart from those 15 wounds on the left side of the chest, one round wound of size 1 X 1 cm was also found, which was caused by fire arm. He has opined that no tattooing or charring was found and therefore, the fire was from a distant place. However, by evidence of Dr. Siddiqui, a timely lodged FIR and corroboration by two eye witnesses, testimony of the victim Atul Mishra is believable.

Learned counsel for the appellant has submitted that the appellant was falsely implicated in the matter due to enmity but, it is no where mentioned that what was the enmity between Atul Mishra and the appellant. On the contrary, Atul Mishra had mentioned in the FIR that he was informed by the witness Ramesh that the appellant and other co-accused persons were searching him since the previous day of the incident. Under such circumstances, where the victim Atul Mishra has specifically stated that out of four accused persons, Rajkumar had fired from a gun then, it cannot be said that Rajkumar was implicated by a reason of enmity. Similarly, it cannot be said that the appellant was implicated in the case due to enmity.

Learned counsel for the appellant has placed his reliance on the judgments passed by Single Bench of this Court in various cases. Such as Lal Singh and Another Vs. State of Madhya Pradesh, Ram Kumar Goutam Vs. The State of Madhya Pradesh, Rajuwa Vs. State of Madhya Pradesh, to show that no grave or fatal injury was caused to the victim and therefore, in the light of these three judgments, no offence punishable u/s 307 of IPC is made out against anyone. At the most, offence punishable u/s 324 of IPC may constitute. If these judgments are perused then, it would be apparent that assessment of the offence u/s 307 of IPC was made on the basis of facts of those cases. In the present case, it is true that injuries caused to the victim were not grave or fatal but, it is apparent from the evidence that the accused Rajkumar fired from a gun after some talks and a fire was made from a distance of 4-5 feet and aim was chest of the victim Atul Mishra, that was a vital part of body. It was the luck of Atul Mishra that he could not sustain grave or fatal injury due to that fire but, he was shot from a small distance and the victim sustained as much as 16 injuries due to that fire on his chest. Under such circumstances, it would be apparent that Rajkumar aimed the chest of the victim then, fired from a short distance of 4-5 feet. By overt-act of the accused Rajkumar Singh, it is apparent that he had intended to kill the victim Atul Mishra and therefore, looking to his intention, offence punishable u/s 307 of IPC shall be made out against the accused Rajkumar. As discussed above, testimony of the victim Atul Mishra is believable and therefore, it is established by the prosecution that the accused Rajkumar had committed offence punishable u/s 307 of IPC.

Learned counsel for the appellant has submitted that the appellant did not have any common intention with the accused Rajkumar. A false allegation is made against the appellant from the side of the victim Atul Mishra. There is a lot of difference between common intention and same intention. Learned counsel for the appellant has placed his reliance on the judgment of Single Bench of this Court passed in case of Rajesh Singh Vs. State of M.P., in which differentiation was made between common intention and same intention. In the present case, it is apparent that fire was done by the deceased accused Rajkumar but, initially a talk took place between the victim Atul Mishra and the appellant. Atul Mishra has categorically stated that the appellant provided a country made pistol to the accused Rajkumar to assault the victim by firing from that gun. The evidence of the victim Atul Mishra was duly confirmed by eye witnesses Virendra Singh and Sandeep Singh. Sandeep Singh has categorically mentioned that there were two accused persons involved in the crime. Out of them, Kamlendra gave that fire arm to Rajkumar with the direction to kill the victim Atul Mishra and thereafter, Rajkumar fired from the gun. Under such circumstances, it would be apparent that on the instigation of the appellant, the accused Rajkumar fired from that gun and for fulfillment of that crime, a loaded gun was provided by the appellant to the accused Rajkumar. Under such circumstances, overt-act of the appellant is clearly established and looking to that overt-act, it is apparent that the appellant had common intention with the co-accused Rajkumar to kill the victim Atul Mishra and therefore, the trial Court has rightly convicted the appellant for offence punishable u/s 307 of IPC with help of section 34 of IPC. Conclusions drawn by the Single Bench of this Court in case of Rajesh (supra) are dependant upon a different set of facts and therefore, that judgment has no effect on the present case. Under such circumstances, no interference can be done in the conviction directed by the trial Court against the appellant for offence punishable u/s 307 read with section 34 of IPC.

Initially it was stated by the victim Atul Mishra in the FIR, Ex.P/2 that at the time of incident, they were going to the house of his friend to fetch a copy (answer-book) but, in his statement before the Court he has accepted that during that visit the victim Atul Mishra and his friends stopped before a pan shop (Beetle leave shop) and therefore, when quarrel started, no restrain was done by the accused persons. Under such circumstances, where the victim was not moving away from the place of incident, it cannot be said that he was restrained wrongfully. Learned Additional Sessions Judge has erred in convicting the appellant for offence punishable u/s 341 of IPC.

So far as the sentence is concerned, it is true that the appellant was a 23 years old boy at the time of incident and he faced the trial and appeal for last 17-18 years but, he remained in the custody for only 21 days. The appellant was not below 18 years of age, at the time of incident and therefore, it cannot be said that he was immature so that he would have done such a crime due to immaturity. Crime is committed in such a manner that the victim was chased and the appellant provided a hand made pistol to other co-accused and directed him to fire upon the victim and fire was made on the chest of the victim. At present, such type of anti-social activities are increasing. The overt-act done by the appellant appears to be grave in nature. Such type of overt-act should be deprecated. Learned counsel for the appellant relied upon the judgment passed by single Bench of this Court in case of Rajuwa (supra) with a prayer that sentence of the appellant be altered to some fine only. Reasons mentioned in the judgment are not available in the present case and therefore, looking to the overt-act of the appellant it is not a fit case in which sentence may be reduced in such a manner. Sentence passed by the trial Court appears to be appropriate. Trial Court has not inflicted a harsh sentence. Under such circumstances, no reduction can be done in the jail sentence passed by the trial Court.

On the basis of the aforesaid discussion, the appeal filed by the appellant is hereby partly allowed. His conviction as well as sentence directed for offence punishable u/s 341 of IPC is hereby set aside but, conviction as well as sentence for offence punishable u/s 307 of IPC is hereby maintained.

Bail bonds furnished by the appellant are hereby cancelled. The appellant is directed to appear before the trial Court forthwith and trial Court is directed to arrest the appellant and send him to the jail for the execution of remaining jail sentence. If fine was not recovered from the appellant then, it may also be recovered. Copy of the judgment be sent to the trial Court forthwith with its record for information and compliance.