Lala alias Vinod Singh vs State of Madhya Pradesh

Since present matters are connected and arise out of the common judgment dated 13/07/2006, passed by VIII Additional Sessions Judge, Gwalior (M.P.) in Sessions Trial No.160/2005, they are being decided by the present common judgment.

(2) The appellant- Lala alias Vinod Singh has preferred the present appeal against the aforesaid judgment passed by VIII Additional Sessions Judge, Gwalior in Sessions Trial No.160/2005, being aggrieved with his conviction and sentence whereby the appellant -Lala alias Vinod Singh has been convicted under Section 302 read with Section 34

of IPC and sentenced to life imprisonment with fine of Rs.500/-

(3) The appellant- Banti alias Ranveer has preferred the present appeal against the aforesaid judgment whereas he has been convicted of offence under Section 25 (1-B)(a) of the Arms Act and sentenced to one year''s rigorous imprisonment with a fine of Rs. 500/-

(4) Facts of the case, in short, are that on 04/01/2005, appellants- Banti alias Manoj, Vinod alias Lala and co- accused Monu Tomar alias Sunil Singh after consuming liquor were making disturbance and nuisance in front of the house of complainant Surendra Singh at New Colony No.2, Birla Nagar, Gwalior and, therefore, deceased Devendra Singh, elder brother of Surendra Singh came out of the house. He tried to advice the appellants and accused Monu Tomar, not to abuse loudly otherwise a bad effect would be caused to the children. Thereafter, Monu Tomar and Lala @ Vinod Singh threatened him. Residents of that locality came to the spot and resolved the matter. Again, on 05/01/2005, when deceased Devendra Singh went by a motorcycle to take his son Manu alias Bhupendra (PW2) back from Bal Vihar School he was surrounded by the appellants and co- accused Monu. They reached the spot by one motorcycle. When they passed through the shop of complainant Surendra Singh (PW1) then the complainant thought of some event and, therefore, he went to the spot along-with other witnesses by a motorcycle. He saw that appellant Lala @ Vinod Singh covered the motorcycle of deceased Devendra Singh by his motorcycle and thereafter appellant- Banti @ Ranveer exhorted accused Monu Tomar and, therefore, Monu Tomar fired with a gun causing injury on temporal region of deceased Devendra Singh. Thereafter, they ran away. When complainant Surendra Singh (PW1) and witness Raju Singh (PW7) reached near

deceased Devendra Singh, he was alive. He was taken to SAHARA Hospital where he was declared dead. The complainant- Surendera Singh (PW1) lodged the FIR Ex.P/2 at Police Station Padav, District Gwalior. The dead body of deceased Devendra Singh was sent for postmortem. Dr. Yogendra Singh (PW15) performed the postmortem and gave a report Ex.P/15. He found the gunshot injury as mentioned by the witnesses and deceased Devendra Singh died due to that injury.

(5) That, investigation was initiated by Inspector Atmaram Sharma (PW16). The accused persons were arrested on the information given by appellant- Banti alias Ranveer under Section 27 of the Evidence Act which was recorded as a document Ex.P/19. A gun along-with cartridges were recovered from him at his house situated at village Aantri and seizure memo Ex.P/9 was prepared before the witnesses. Similarly, a gun was recovered from co- accused Monu Tomar. One motorcycle was recovered on the information given by appellant- Lala @ Vinod Singh. The guns were sent for their mechanical examination and Constable Armour Lal Singh (PW9) examined the guns and gave a report Ex.P/13 and he found that both the guns were working firearms. RK Jain, ADM (PW13), gave a sanction order to prosecute the appellants for offence under Section 25 of the Arms Act. After due investigation, the charge-sheet was filed before the Chief Judicial Magistrate, Gwalior who committed the case to the Court of Session and ultimately it was transferred to VIII Additional Sessions Judge, Gwalior.

(6) Appellants abjured their guilt. They took a plea that there was enmity between the parties and, therefore, due to enmity the appellants were falsely implicated in the matter. The co-accused Monu Tomar took a plea of alibi that he had gone to Delhi on those particular dates

whereas witness Chetan Singh Rajput (DW1) was examined to show that he never handed over the motorcycle bearing registration no. MP07KG5819 to accused Lala @ Vinod Singh and similarly, witness Shiv Kumar Singh Tomar (DW2) was examined to prove the alibi of co-accused Monu Tomar.

(7) The trial Court after considering the evidence adduced by the parties acquitted appellant Banti @ Ranveer from the charge of offence under Section 302 read with Section 34 of IPC and Section 27 of the Arms Act. However, he was convicted and sentenced as mentioned above. Appellant Lala @ Vinod Singh was convicted and sentenced as mentioned above. Co-accused Monu Tomar was already convicted of offence under Section 302 of IPC and other crimes, however, his appeal was separate and due to death, his appeal was abated.

(8) At the time of final hearing, no-one was appearing for appellant Banti @ Ranveer and, therefore, Shri Alok Kumar Sharma, Advocate who has vast experience in dealing with the criminal cases, from the Panel of High Court Legal Services Committee, was appointed to argue the matter on behalf of appellant Banti @ Ranveer. Thereafter, we have heard the learned counsel for the parties at length.

(9) First of all, it is to be considered as to whether death of the deceased was homicidal in nature or not? In this connection, evidence given by Dr. Yogendra Singh (PW15) is important who performed the postmortem on the body of the deceased and gave a report Ex.P/15. According to Dr. Yogendra Singh, there was an entry wound on right temporal region of deceased Devendra Singh and there was an exit wound on the back of the head. Except of these two injuries there was no injury found to the deceased. However, that gunshot injury was found to be fatal and was sufficient to cause death of deceased

Devendra Singh in the natural course of his life. According to Dr. Yogendra Singh, there was no tattooing or blackening was found and, therefore, fire must have been done with the distance of 6 feet. There is no reason to discard the evidence given by Dr. Yogendra Singh and, therefore, it is properly found by the trial Court that death of the deceased Devendra Singh was homicidal in nature and caused by firing a single gunshot and such injury was sufficient to cause his death in the natural course of his life.

(10) The eye-witness Surendra Singh (PW1), child witness Manu (PW2) and Raju Singh (PW7) have stated that initially deceased Devendra Singh had taken his son Manu from the school and when he was about to start his motorcycle, appellants surrounded him. It is alleged against the accused Monu Tomar that he fired with a gun. The evidence given by these witnesses can be accepted because such evidence is duly corroborated by timely lodged FIR Ex. P/2 which was lodged by complainant Surendra Singh (PW1). In this connection, Constable Mukesh Singh (PW11) has proved the dak book to show that copy of the FIR was timely sent to the concerned Magistrate under Section 157 of the CrPC. Similarly, the evidence of these witnesses is duly corroborated by Dr. Yogendra Singh (PW15) who found the injury of gunshot at particular place of body as told by the witnesses and, therefore, the trial Court has rightly found that the accused Monu Tomar fired with a gun causing injuries to deceased Devendra Singh and due to those injuries he died. Hence, the trial Court has rightly convicted the accused Monu Tomar for offence under Section 302 of IPC.

(11) In the present case, it is stated all the eyewitnesses that initially the appellants along with accused Monu Tomar went to the spot and Monu Tomar and Banti @ Ranveer got down from the motorcycle and on exhortation given by

Banti alias Ranveer, accused Monu Tomar fired with a gun. However, the trial Court acquitted appellant- Banti @ Ranveer from the charge of Section 302 read with Section 34 of IPC. Hence, there is no need to discuss about appellant Banti @ Ranveer relating to crime under Section 302 of IPC and his common intention. The common intention of appellant Lala alias Vinod Singh is to be considered by his overt act as told by the witnesses. It is not stated by any of the witnesses that appellant Lala @ Vinod Singh tried to fire with a gun or tried to assault deceased Devendra Singh with any other weapon. It is simply alleged by the witnesses that appellant Lala @ Vinod stopped his motorcycle in such a manner so that deceased Devendra Singh could not move. There is a lot of confusion in the evidence of various witnesses as to whether deceased Devendra Singh had started from the school after taking his son Manu or not ? If he had started then it was not possible for appellant Lala @ Vinod Singh to park his motorcycle in front of the motorcycle of deceased Devendra Singh because a running motorcycle could not be stopped in such a manner. It would be apparent from the statements of Surendra Singh (PW1) and Raju Singh (PW7) that when they saw the appellants going on the motorcycle along-with accused Monu Tomar then they thought of some mishappening and, therefore, Surendra Singh called witness Raju Singh and they chased by another motorcycle and, therefore, there must be a sufficient distance between the motorcycle of the appellants and the motorcycle of witnesses Surendra Singh and Raju Singh. Hence, there was no possibility for witnesses Surendra Singh and Raju Singh that they could see the initial activity of appellant Lala @ Vinod Singh that he stopped his motorcycle in such a manner to restrain the deceased Devendra Singh to move further on the

motorcycle. Hence, for this fact, the only evidence of child witness Manu remains. The child witness Manu aged seven years could be the tutored witness for minor facts in implicating appellant- Lala @ Vinod Singh. Hence, his evidence is to be scrutinized cautiously.

(12) The main drawback in the evidence given by witness Manu is that when his uncle Surendra Singh and witness Raju Singh reached the spot and took his father to the hospital then as to why no management was done by these witnesses to take the child Manu from the spot and to arrange for his sending to his house. Manu has stated that he himself visited to his house by foot. He met with one Vinay in the way and, therefore, he was taken to the house by Vinay whereas if the witnesses Surendra Singh and Raju Singh have arrived at the spot then they would have arranged for taking of the witness Manu from the spot to his house. Secondly, Manu was not sure that at the time of incident whether Devendra Singh had started the motorcycle and the motorcycle was moving. If motorcycle was moving then it could not be stopped by putting another motorcycle in its front, otherwise an accident would have been caused and if it was not started still then it was not necessary for appellant Lala @ Vinod Singh to stop the motorcycle just in front of front-wheel of motorcycle of deceased Devendra Singh. Also, if the appellant Lala @ Vinod Singh would have stopped his motorcycle just in front of motorcycle of the deceased Devendra and the accused Monu would have surrounded the deceased Devendra then fire could have been done with a shorter distance, whereas according to Dr. Yogendra Singh fire was done from more than 6 feet distance.Under these circumstances, the statement of witness Manu cannot be accepted beyond doubt that appellant Lala @ Vinod Singh stopped his motorcycle so that deceased Devendra Singh could not

move on his motorcycle.

(13) However, it is alleged against appellant Banti @ Ranveer and accused Monu Tomar that they had handmade pistols. It is not stated by witness Manu that they had the pistols in their hands. If pistols were kept by these two persons in their pockets then it cannot be presumed that appellant Lala @ Vinod Singh had a knowledge that his companions would fire upon the deceased Devendra Singh. Possibility may not be ruled out that the appellant Lala @ Vinod Singh would have acted a role to drive the motorcycle only and he would have thought that accused Monu Tomar and Banti @ Ranveer would quarrel with deceased Devendra Singh and, therefore, if it is presumed that appellant Lala @ Vinod Singh stopped deceased Devendra Singh by stopping his motorcycle in front of his motorcycle then still by such an act, it cannot be said that he had a common intention with the accused Monu Tomar to kill the deceased Devendra Singh. When it is not proved beyond doubt that appellant Lala @ Vinod stopped deceased Devendra Singh in the aforesaid manner and no such overt act is proved beyond doubt, then there is no another activity proved by the prosecution for appellant Lala @ Vinod Singh to show his common intention with accused Monu Tomar.

(14) In these circumstances, the prosecution has failed to prove the activity of appellant Lala @ Vinod Singh beyond doubt to prove that he had common intention with the accused Monu Tomar in killing the deceased Devendra Singh. Hence, the trial Court has committed an error in convicting appellant Lala @ Vinod Singh for offence under Section 302 of IPC with the help of Section 34 of IPC. It is not alleged against appellant Lala @ Vinod Singh that either he exhorted the co-accused Monu Tomar or he participated in the crime otherwise whereas his alleged act

was neither proved nor sufficient to show his common intention. Under these circumstances, where the trial Court has committed an error in finding the common intention of the appellant Lala @ Vinod Singh along with co-accused Monu Tomar, then the said error should be removed in the present appeal. The trial Court has committed an error in convicting appellant Lala @ Vinod Singh for the offence under Section 302 of IPC with the help of Section 34 of IPC.

(15) So far as the case of appellant Banti alias Ranveer is concerned, he has been convicted only for a charge of Section 25 (1-B)(a) of the Arms Act . In this connection Inspector Atmaram Sharma (PW16) has stated that appellant Banti @ Ranveer gave a confessional memo Ex. P/19 before the witnesses that he kept the firearm in his house, whereas there was no allegation of the complainant that at the time of incident appellant Banti @ Ranveer raised any gun or he tried to fire. If appellant Banti @ Ranveer had a gun at the time of incident then there was no problem for him to fire upon deceased Devendra Singh simultaneously with co-accused Monu Tomar. Out of the witnesses of memo under recorded Section 27 of the Evidence Act, Anil (PW12) was examined who turned hostile whereas witness Chuttan was not examined in support of that memo and, therefore, testimony of Atmaram Sharma (PW16) should be examined for that memo under Section 27 of the Evidence Act in absence of any corroboration of witnesses. Similarly, it is alleged by Atmaram Sharma (PW16) that a handmade pistol and some cartridges were recovered from appellant Banti @ Ranveer from his house at village Aantri vide seizure memo Ex.P/9 but out of the witnesses taken by Inspector Atmaram Sharma (PW16), Harish Chandra was not examined and Baijnath (PW6) has turned hostile. Hence,

there is no corroboration of independent witnesses relating to seizure of gun. It is true that Inspector Atmaram Sharma (PW16) did not take any patent witnesses in observing the formalities of seizure etc. He took a separate set of witnesses on 21/03/2005 when memo under Section 27 of the Evidence Act was recorded and a separate set of witnesses was taken on 22/03/2005 when the seizure was done from the house of appellant Banti @ Ranveer at village Aantri.

(16) However, the testimony of Inspector Atmaram Sharma (PW16) comes under doubt when he transmitted the handmade pistol and cartridges for their examination. Constable Lal Singh (PW9) who was examined as an Armour did not mention in his report Ex. P/13 that he found the gun in a sealed condition. Similarly, the Inspector Atmaram Sharma has claimed that such articles were sealed. However, no impression of seal was affixed on seizure memo Ex.P/9 and similarly, Armour Constable Lal Singh (PW9) did not mention in his statement that he opened the seal of the packet and thereafter examined the firearm. Hence, when Atmaram Sharma could not prove the proper sealing of the firearm etc. at the spot at the time of seizure then there is a possibility of change of the articles which were recovered before sending to Armour Lal Singh (PW9). Hence, report Ex.P/13 given by Constable Armour Lal Singh (PW9) cannot be accepted against appellant Banti @ Ranveer and, therefore, it is not proved beyond doubt that firearm or ammunition was recovered from appellant Banti @ Ranveer. Hence, the proceeding done by Inspector Atmaram Sharma comes under the clouds of doubt and if any doubt is created then the benefit of such doubt is always to be given to the accused.The prosecution could not prove beyond doubt that any firearm or ammunition was recovered from appellant Banti @

Ranveer and, therefore, he could not be convicted of any part of crime under Section 25 of the Arms Act. The trial Court has committed an error in convicting appellant Banti @ Ranveer of offence under Section 25 (1-B)(a) of the Arms Act .

(17) On the basis of aforesaid discussion, appeals filed by appellants Lala @ Vinod Singh and Banti @ Ranveer appear to be acceptable and consequently, both are hereby accepted. The conviction as well as sentence passed against appellant Lala @ Vinod Singh of offence under Section 302 read with Section 34 of IPC is hereby set aside. He is acquitted from the aforesaid charge. Similarly, conviction of appellant Banti @ Ranveer of offence under Section 25 (1-B)(a) of the Arms Act along-with sentence passed by the trial Court is hereby set aside. He is acquitted from the said charge. The appellants would be entitled to get the fine amount back, if they had deposited before the trial Court.

(18) The appellant Lala @ Vinod Singh is in custody and now his presence is no more required before this Court and, therefore, the Registry is directed to arrange for the issuance of his release warrant so that he shall be released without any delay. Appellant Banti @ Ranveer is on bail and it is directed that his bail bond shall stand discharged.

(19) A copy of this judgment be sent to the Court below along with its record for information and compliance.