Lalit Kishore vs State of Madhya Pradesh

Hon''ble Shri Justice N.K. Gupta

The appellant has preferred this appeal against the judgment dated 3.12.1996 passed by the Sessions Judge, Satna in S.T. No. 174/95, whereby the appellant was convicted for the offence punishable u/s 307 of IPC and sentenced for three years'' R.I. with fine of Rs. 1,000/-. In default of payment, he was to undergo for six months'' R.I. in addition. The prosecution''s case, in short is that, on 14.8.1994 at about 7:30 p.m. in the evening, the complainant Rohini Prasad (PW-8) was going from Kothi to his house situated at village Ranehi (Police Station Kothi, District Satna). He was accompanied parking his vehicle and the complainant and other witnesses were talking to each other at the spot, in the meantime the appellant alongwith his brother Khemchand appeared at the spot and fired from a gun. Some pellets struck in the right hand of the complainant. Thereafter, the appellant and his brother ran away from the spot. The complainant was taken to the Police Station, Kothi, where he lodged an FIR Ex.P/10 (Ex.P/15 in S.T. No. 33/95). He was directed for his medico legal examination and treatment to Primary Health Centre, Kothi. Dr. A.K. Trivedi (PW-1) after examining the complainant Rohini Prasad, gave his report Ex.P/1. He found four lacerated wounds on the right forearm of the complainant and in 4th wounds, he found a pellet and removed that pellet also. After due investigation, a charge sheet was filed before the J.M.F.C. Satna, who committed the case to the Sessions Court but the appellant was absconding and therefore, the entire trial was proceeded against the accused Khemchand. Vide judgment dated 27.1.1995, the accused Khemchand was acquitted by the learned Sessions Judge, Satna from all the charges levelled against him. Thereafter, in November 1995, a supplementary charge sheet was filed and trial was initiated before the Sessions Court against the appellant.

The appellant abjured his guilt. He took a specific plea that he was falsely implicated in the matter due to enmity between the complainant and father of the appellant. Ram Sunder (DW-1) father of the complainant was examined as a defence witness to prove the plea of alibi.

The learned Sessions Judge, Satna after considering the evidence adduced by both the parties, convicted the appellant for the offence punishable u/s 307 of IPC and sentenced him as mentioned above.

I have heard the learned counsel for the parties.

The learned counsel for the appellant has submitted that the incident took place after 7:30 p.m. in the evening and the complainant had accepted in his statement before the Court during his deposition in S.T. No. 33/95 that at the time of incident, there was dark. Hence, the complainant could not see the actual culprit. He had also accepted in his deposition given in S.T. No. 33/95 that he saw firearm in the hand of the accused Khemchand and therefore, the testimony of the complainant appears to be doubtful. A grave enmity was there in between the complainant and father of the appellant and therefore, the complainant lodged a false FIR against the appellant and his brother Khemchand without any reason. The testimony of the complainant was not at all corroborated by any of the witnesses. Under such circumstances, it is prayed that the appeal filed by the appellant may be accepted and he may also be acquitted from the charge levelled against him. In alternate, it is submitted that the appellant remained in the jail for seven days and therefore, it is also prayed that he may not be sent to the jail again.

On the other hand, learned Public Prosecutor has submitted that it was a planned incident committed by the appellant and his intention is visible. He fired from the firearm upon the complainant and therefore, the conviction as well as the sentence directed by the trial Court may be maintained.

After considering the submissions made by the learned counsel for the parties, it is to be considered as to whether the appeal filed by the appellant can be accepted? And whether the sentence directed against him can be reduced?

In the present case, the complainant Rohini Prasad (PW-8), Hemraj (PW-2), Pramod Kumar (PW-3), Brajbhan (PW-6) and Yogendra Prasad (PW-9) were examined as eyewitnesses. The complainant Rohini Prasad has stated that the appellant and his brother were hidden in a bush and suddenly, the appellant fired from a handmade gun upon the victim, whereby he sustained some injuries on his right forearm. On the other hand, all the eyewitnesses including Hemraj Singh, Pramod Kumar, Brajbhan Singh and Yogendra Prasad have stated that they heard a sound of fire and they found that the complainant Rohini Prasad to be injured but they did not know as to who fired from the gun. Dr. A.K. Trivedi, (PW-1) has proved the MLC report Ex.P/1. He found four injuries to the complainant caused by the gunshot. The pellets were stuck to the right forearm of the complainant.

Rohini Prasad (PW-8) had lodged an FIR Ex.P/10. Head Constable Sidh Kumar Sharma (PW-7) wrote the FIR on the same day at about 8:05 p.m. in the evening. Prima facie, it appears that FIR was lodged within the reasonable time. Looking at the statements given by various eyewitnesses, FIR Ex.P/10 and the injuries proved by Dr. Trivedi, it is proved beyond doubt that someone fired from the gun and the complainant sustained the gunshot injuries on his right forearm. However, those injuries were simple in nature.

In the present case, only one point is to be considered that, who fired from the gun. The complainant alleged against the appellant as well as his brother Khemchand that both of them were hidden in a bush and out of them, the appellant had fired from a gun. Examination of the complainant Rohini Prasad took place for two times before the Court. Firstly, when the trial was proceeded against Khemchand and second time, when the trial was proceeded against the present appellant. In the previous statement deposed by the complainant Rohini Prasad in S.T. No. 33/95 that at the time of incident, it was dark. He gave an explanation that he started at about 7:00 p.m. in the evening from Kothi and took 1/2 an hour in reaching near the house of Brajbhan Singh. Under such circumstances, if the incident took place in the dark then there was no possibility to the complainant to locate the origin of the fire that fire was done by the appellant or not. If he could locate the culprits then, how it is possible that all the eyewitnesses could not see the appellant, when he fired from a gun.

Secondly, the complainant had accepted in his deposition done in the first trial that he saw the gun in the hand of Khemchand. If the fired took place upon the complainant and he saw the gun in the hand of Khemchand then, how he could say that the fire was done by the present appellant and not by Khemchand. Under such circumstances, a doubt is created that amongst the appellant and Khemchand, who fired from the gun, whereas the accused Khemchand was acquitted by the trial Court from the charges of offence punishable under Sections 307 and 307/34 of IPC.

The complainant has accepted that a criminal case was pending against him for lurking house trespass and theft done in the house of the appellant. Similarly, the allegation was directed by the appellant that the complainant took a electric wire over the house of the appellant and one criminal case was also pending against the complainant that he fired upon the witness Ram Sunder (DW-1), father of the appellant. Under such circumstances, it is apparent that there was a grave enmity between the parties. The enmity is a double edged weapon and due to enmity, anyone can assault other person and due to enmity, anyone can falsely implicate to any other in a criminal matter.

As argued by the learned Public Prosecutor that, the FIR was lodged within reasonable time but when there was a grave enmity between the parties and the complainant could not see the actual culprit, then it was easy for him to make allegation against enmities. One hour''s time was sufficient to make the allegations against the appellant and his brother. It is nowhere clear as to why the complainant implicated the accused Khemchand, brother of the appellant. If he had falsely implicated the accused Khemchand in the case, then he could implicate the appellant also in the case without any basis.

Especially, when the other eyewitnesses have not corroborated the facts that the fire was done by the appellant then, the possibility cannot be ruled out that the complainant had falsely implicated the appellant in the crime because he could not see the actual culprit due to darkness. Under such circumstances, a reasonable doubt is created in favour of the appellant that whether he fired from the gun or his brother Khemchand fired from the gun or anyone else fired from the gun, therefore, the prosecution could not prove beyond doubt that it was the appellant, who fired from the gun to cause injuries to the complainant. If any doubt is created then, the benefit of doubt is to be given to the accused. Under such circumstances, where it was not proved beyond doubt that the appellant was the person, who fired from the gun then, the appellant cannot be convicted for the offence punishable u/s 307 of IPC or any inferior offence of same nature. Learned Sessions Judge has erred in convicting the appellant for the offence punishable u/s 307 of IPC.

On the basis of aforesaid discussion, the present appeal filed by the appellant appears to be acceptable because a reasonable doubt is created in his favour. Consequently, the present appeal is hereby allowed. The conviction as well as the sentence directed against the appellant is hereby set aside. The appellant is acquitted from the charge of offence punishable u/s 307 of IPC. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court.

At present, the appellant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. A copy of the judgment be sent to the trial Court alongwith its record for information and compliance.