Mukesh vs State of M.P.

Hon''ble Mrs. Justice S.R. Waghmare

This is the appeal of the year 1997 has been filed u/s 374 of the Cr.P.C. being aggrieved by the judgment dated 24.11.1997 passed by Session Judge in Criminal Case No. 21/95 whereby the appellant was convicted for offence punishable u/S. 25(1-B)(A) r/w Section 27 of the Arm Act and sentenced him to 3 years rigorous imprisonment with fine of 1000/-, in case of default he was to undergo additional two months simple imprisonment. Brief facts necessary for elucidation are that on 29.12.1992 at about 6:00 PM complainant Madhu wife of Hansraj Meena was staying at her uncle Raju''s house at Nagda, when, accused Mukesh Meena and his companions Narayana Balai and Jagdish Bagadi came there and Mukesh was sitting beside the pillar and Narayan and Jagdish asked Madhu who is inside the house, she stated that Mani (aunt) was there, suddenly Mukesh whipped out the pistol and stated that she had spoiled his life and fired upon the complainant with his left hand in front but the bullet did not hit her, however, Jagdish was injured by some pellets and the bullet struck behind Mukesh''s hand himself and finger of the left hand was cut off by the gun shot and the complainant got scared and fled away inside the house. Later she filed the report at Police Station Nagda and the offence was registered and investigation was launched. The samples of simple and controlled earth and finger were collected from the spot and seizure memo Ex. P/8 was prepared. a revolver (Katta) and 12 bore cartridge of country made pistol were seized in front of the eyewitnesses. Consequently the accused were arrested and duly charged for offence U/s 307 of the IPC r/w 25(A) and 27 of the Arms Act.

The accused/appellants faced trial and abjured their guilt and stating that they had been falsely implicated in the matter but did not examine any witnesses in their defence. The trial Court on considering the evidence acquitted all the accused from offence u/S 307/34 and 307 of the IPC, however, convicted the present accused Mukesh u/S. 25(1-B)(A) r/w Section 27 of the Arm Act and sentenced him as mentioned herein above.

Learned Counsel for the appellant has urged that the ingredients of the offence u/S. 25(1-B)(A) of the Act were not at all made out since under circumstances the accused has already been acquitted from offence u/S 307 of the IPC. Moreover, Counsel contended that nobody was injured and none of prosecution eyewitnesses Jagdish (PW-6), Rani (PW-8), Shankarlal (PW-9) have supported the prosecution case. Under these circumstances, the entire prosecution case is demolished. Moreover in the light of the fact Madhu (PW-5) has not identified the two other accused at all and moreover, there is discrepancy, material omission and contradiction in the testimony of these witnesses and they cannot be relied on for the conviction. Moreover, considering the fact that Madhu was subsequently married with Hansraj whereas initially she had promised to marry with the accused Mukesh that''s why he was angered and frustrated and hence the allegation that the accused was falsely implicated cannot be ruled out. Counsel prayed for setting aside the acquittal.

Learned Counsel for the respondent/State on the other hand has full supported the impugned judgment and stated that 12 bore cartridge and country made pistol have been recovered from the possession of the accused Mukesh. Moreover, Counsel submitted that the judgment of the trial Court is based on valid and cogent reasons. All the accused had already been acquitted from offence u/S. 307 of the IPC. However, Counsel submits that recovery of gun from the possession of the accused clearly clinches the issue. He prayed for dismissal of the appeal.

On considering the above submissions, I find that the impugned judgment of trial Court is based on valid and cogent reasons and there has been proper marshalling of evidence and the trial Court has already acquitted the accused from offence u/S. 307 of IPC and no infirmity cannot be found for offence u/S. 25(1-B)(A) r/w Section 27 of the Arm Act. I have no hesitation in upholding the conviction of the accused Mukesh for offence u/s u/S. 25(1-B)(A) r/w Section 27 of the Arm Act However, considering the fact that the appellant is only 20 years of age at the time of the incident and he has already lost his one finger in the incident. So also under the natural circumstances, being in love with Madhu and she had married with somebody else is a painful fact which cannot be ignored. And hence invoking to proviso of Section 25(1-B) of the Arms Act, the custodial sentence of the accuses appellant Mukesh is reduced to the period already undergone in the interest of justice. However, the fine amount is raised to Rs. 2,000/- ; which shall be paid to the complainant Madhu as compensation u/s 357 of the Cr.P.C. within a period of two months from the date of this judgment. On failure to pay the fine within the stipulated period the appellant shall undergo the remaining part of the jail sentence as directed by the trial Court.

With the aforesaid modification the appeal is partly allowed to the extent herein above indicated. Appellant is on bail. His bail bond and surety bond are hereby discharged.

A copy of this judgment be sent to the concerned lower Court for compliance. CC as per rules.