Sambhar Jatav vs State Of Madhya Pradesh

G.S. Ahluwalia, J

This Criminal Appeal has been filed against the judgment and sentence dated 31.3.2010 passed by Special Judge, Datia in Special Sessions Trial No.11/2005 by which the appellant has been convicted under Section 302 of IPC read with Section 13 of MPDVPK Act.

The necessary facts for the disposal of the present appeal in short are that on 6.12.2004 at about 8:45 in the night, the complainant Mubarak Mohammad was in his house. At that time Devi Singh Rawat came to his house and informed that a dacoit Hazrat Rawat and his gang members have come to his house and are enquiring about the complainant. Then he ran away after jumping from the roof. Hazrat Rawat and his gang members went towards Dera of Amar Singh Rawat. Thereafter, the complainant Mubarak Mohammad and Devi Singh came back to their house on a tractor and informed the incident to one Ramkishan Rawat. The complainant along with Ramkishan Rawat, Devi Singh Rawat and Dev Singh Rawat went to village Khirka and after parking the tractor they went to the house of Dev Singh Rawat and had a discussion over there. Thereafter, they went to the Dera of Kamal Singh, Pratap Singh and Bare Lal and in the light of the torch they saw that dacoit Hazrat Rawat, Umrao Singh, the appellant Sambhar Jatav, Himraj Banjara and Ramesh Luhar were sitting there. All those persons were having guns in their hands and other persons of village Khirka were sitting along with them. Mehtap Singh was having 12 bore licensed gun, whereas Iqual Mohammad was having licensed double barrel gun and after noticing them, the complainant and other persons went in hiding. At that time, the dacoit Hazrat Rawat and his gang members including the appellant fired gunshots on the complainant and his companions. At that time the complainant Mubarak Mohammad was on the right side of Ramkishan whereas Devi Singh and Dev Singh were on the left side of Ramkishan. Ramkishan sustained multiple gunshot injuries on his chest and fell down. The complainant Mubarak Mohammad, Devi Singh and Dev Singh somehow managed to escape and when they reached near the road, they met with the police party who was informed about the incident. The police party went to the spot from where the injured Ramkishan was shifted to Datia Hospital where he was declared as brought dead. On the report of the complainant Mubarak Mohammad, Dehati Nalsi Ex.P/4 was written. On the basis of Dehati Nalsi Ex.P/4, intimation report Ex.P/5 was recorded. Spot map Ex.P/6 was prepared. Blood stained and plain earth and fired bullets were seized by seizure memo Ex.P/7. The postmortem of the deceased Ramkishan was done and the postmortem report is Ex.P/22. The bullets recovered from the body of the deceased as well as clothes of the deceased were seized by seizure memo Ex.P/3. On the basis of the evidence collected by the police, the appellant and other co-accused persons were arrested. The statements of the witnesses were recorded and, accordingly, the police filed the charge sheet against the appellant and other accused persons for offence under Sections 302/149, 148 of IPC read with Section 13 of MPDVPK Act.

The Trial Court by judgment dated 2.4.2008 framed charges under Sections 148, 302 or in the alternative 302/149 of IPC read with Section 13 of MPDVPK Act.

The appellant and the acquitted co-accused persons abjured their guilt and pleaded not guilty.

The prosecution in order to prove its case, examined Mohar Singh (PW-1), Devi Singh (PW-2), Ram Sahai Yadav (PW-3), Mubarak Mohammad (PW-4), Ramji (PW-5), Sunil Kumar Shrivastava (PW-6), Kalyan Singh (PW-7), Hazurilal Sharma (PW-8) and Dr. R.K. Mishra (PW-9).

The appellant and other co-accused persons did not examine any witness in their defence.

The Trial Court by judgment dated 31.3.2010 convicted the appellant for offence under Section 302 of IPC read with Section 13 of MPDVPK Act whereas the other co-accused persons namely Laxminarayan Rawat, Narayan Singh Rawat, Rai Singh Rawat, Rajendra Singh, Mehtab Singh Rawat, Kamal Singh, Iqbal Mohammad, Khurshid and Nafees Mohammad were acquitted of the charge under Sections 148, 302/149 of IPC read with Section 13 of MPDVPK Act.

It appears that the acquittal of other co-accused persons has not been challenged either by the State or by the complainant.

Challenging the judgment and sentence passed by the Court below, it is submitted by the counsel for the appellant that the appellant has been falsely implicated. The witnesses have not stated anything against the co-accused persons, therefore, it is clear that they are not reliable witnesses and under such circumstances the evidence of the prosecution witnesses against the appellant is not reliable.

Per contra, it is submitted by the counsel for the State that the Trial Court after appreciating the evidence available on record has rightly convicted the appellant by a well reasoned order.

Heard the learned counsel for the parties.

Dr. R.K. Mishra (PW-9) had conducted the postmortem of the deceased Ramkishan and had found the following injuries on the body of the deceased:-

"(1) An entrance wound ant to the Left mid axillary line 1 cm. size at the level of 3rd i.c.s.

(2) an entrance wound ant to the Left mid axillary line 1 cm. size at the level of 4th i.c.s.

Both are 1 cm. apart from each other.

(3) Entrance wound post to left mid axillary line at the level of 4th i.c.s. (2 cms. post) size 1 cm. shape oval.

(4) an entrance wound 3.5 cms. post to left mid axillary line at 10th ics size 1 cm.

(5) an entrance wound about 4 cms. post to left mid axillary line at the level of 12 i.c.s. of 1 cm.

(6) an entrance wound 2 cms. lat. to left mid clavicular line at 10th i.c.s. size 1 cm.

(7) an abrasion of 6x1 cm. sup. roughly at the level of lower end of sternum between left mid clavicular line of sternum.

(8) an exit wound of about 2 cms. at 12th rib in right mid clavicular line, 13 cms. down the right nipple.

(9) an exit wound of 1.5 cm. at the level of 2nd i.c.s. about 3 cms. above the right nipple.

(10) an entrance wound about 4 cms. below the mid knee joint line 1 cm. lt to right knee joint.

(11) an exit wound 7 cms. above the mid knee joint line on the med aspect of right thigh about 2 cms."

This witness was cross-examined and he has stated that blackening and tattooing was not visible around the entry wound, therefore, the same was not mentioned in the postmortem report. He has further stated that if the gunshots are fired from a distance of more than 8 feets, then the possibility of blackening and tattooing around the entry wound become less. Thus, it is clear Ramkishan had died because of multiple gunshot injuries, therefore, his death is a homicidal death and the next question which arises is that "who has caused the death of the deceased Ramkishan?"

Mohar Singh (PW-1) has turned hostile and he has not supported the prosecution case. This witness was cross-examined by the Public Prosecutor but nothing could be elicited from his evidence which may support the prosecution case. On the contrary, in the cross-examination done by the counsel for the accused persons this witness has specifically stated that Ramkishan was killed by Hazrat Rawat only.

Devi Singh (PW-2) has also not supported the prosecution case. He has also turned hostile.

Ram Sahai Yadav (PW-3) is a police constable who had brought the clothes of the deceased as well the bullets recovered from the body of the deceased from the hospital which were seized by head constable Kalyan Singh in Police Station Goraghat by seizure memo Ex.P/3.

Mubarak Mohammad (PW-4) is the witness who has lodged the FIR. This witness has stated that at about 8:00 PM while he was going to his field on his tractor, the deceased Ramkishan was also with him. On the way, he met with the Dacoit Hazrat Rawat and his 4 to 5 gang members who tried to stop his tractor. Dev Singh was not with them. After noticing the dacoits, this witness and the deceased tried to run away after jumping from the tractor and at that time the dacoits fired at them. In the examination-in-chief, he has further stated that none of the accused persons present in the Court were accompanying dacoit Hazrat Rawat at the time of incident. However, he further stated that the appellant was along with Hazrat Rawat. Dehati Nalsi lodged by this witness is Ex.P/4. Since this witness had turned hostile in relation to other accused persons, therefore, he was declared hostile. However, in the cross-examination by the Public Prosecutor, it was once again stated by this witness that the appellant was along with dacoit Hazrat Rawat. It was further stated that all the gang members of Hazrat Rawat were armed with gun and the appellant was also one of the member of the gang. He has further admitted that the gunshots were fired by dacoit Hazrat Rawat and the appellant. He further admitted that Ramkishan had sustained multiple gunshot injuries. He further stated that after running away from the spot, the moment he reached on the road he met with the police party to whom the entire incident was narrated and thereafter the police party shifted the dead body to the Datia Hospital. This witness was cross-examined by the defence including the appellant. Only one question was put to this witness by the counsel for the appellant in cross-examination and in answer to that question it was admitted by the witness that there was no enmity between the appellant and Ramkishan. However, the evidence of this witness that the appellant was accompanying with the dacoit Hazrat Rawat and he was armed with firearm and the appellant had also fired along with dacoit Hazrat Rawat has not been challenged by the appellant in the cross-examination of this witness.

Ramji (PW-5) has also turned hostile and he has not supported the prosecution case.

Sunil Kumar Shrivastava (PW-6) has stated that constable Ramsahai had brought the clothes as well as the bullets recovered from the body of the deceased from the District Hospital, Datia which was seized by seizure memo Ex.P/3

Kalyan Singh (PW-7) had recorded the FIR Ex.P/20 on the basis of Dehati Nalsi Ex.P/4.

Hazurilal Sharma (PW-8) has stated that the complainant Mubarak Mohammad (PW-4) had lodged the Dehati Nalsi which is Ex.P/4 and merg intimation report Ex.P/5 was also written by this witness on the information given by Mubarak Mohammad (PW-4). The dead body Panchnama Ex.P/17 was prepared. An application Ex.P/21 was sent to District Hospital, Datia for the postmortem of the dead body of Ramkishan. The FIR Ex.P/20 was lodged on the basis of Dehati Nalsi and merg intimation report. This witness was cross-examined in short.

From the evidence which has been led by the prosecution, it is clear that except Mubarak Mohammad all other eyewitnesses have turned hostile and they have not supported the prosecution case. Mubarak Mohammad had lodged the Dehati Nalsi Ex.P/4. The incident is alleged to have taken place at about 8:45 in the night and the Dehati Nalsi was lodged at 22:30 in the night. Thus it is clear that Dehati Nalsi was lodged within a short span of two hours and the name of the present appellant was specifically mentioned in the Dehati Nalsi. Even in his Court evidence, Mubarak Mohammad (PW-4) has specifically stated that the appellant was along with the dacoit Hazrat Rawat and the appellant had also fired gunshots along with Hazrat Rawat. This evidence of Mubarak Mohammad (PW-4) has not been challenged by the appellant in his cross-examination. It is submitted by the counsel for the appellant that because the prosecution has failed to prove that any gunshot fired by the appellant had hit the deceased, therefore, the conviction of the appellant under Section 302 of IPC is bad.

Considered the submissions made by the counsel for the appellant.

Undispubtedly the deceased had sustained multiple gunshot injuries and as many as six entry wounds were found on his body which clearly shows that the deceased Ramkishan had sustained six gunshot injuries. Where the allegations are that the gunshots were fired by dacoit Hazrat Rawat and the appellant, then it is not possible for a witness to state that which gunshot injury was caused by the appellant. Under these circumstances where the firing of gunshot by the appellant and the dacoit Hazrat Rawat has not been challenged by the appellant in the cross-examination of Mubarak Mohammad (PW-4) and atleast six gunshot injuries were sustained by deceased Ramkishan, therefore, this Court is of the considered opinion that the prosecution has succeeded in establishing beyond reasonable doubt that the deceased Ramkishan had died because of the gunshots fired by the appellant as well as the dacoit Hazrat Rawat. Accordingly, it is held that the appellant is guilty of committing offence under Section 302 of IPC. Since the place of incident has been notified as dacoit effected area by the State Government by its Notification No.F-12-1/2000/B(1), 2/dated 24.01.2000, therefore, the appellant is also held guilty of offence under Section 13 of MPDVPK Act.

So far as the question of sentence is concerned, the minimum sentence for offence under Section 302 of IPC is Life Imprisonment and thus the sentence imposed by the Trial Court does not call for any interference. Since the appellant has already been convicted and sentenced for offence under Section 302 of IPC, therefore, no separate sentence is imposed on the appellant for offence under Section 13 of MPDVPK Act. The appellant is in jail. Accordingly, the judgment and sentence dated 31.3.2010 passed by Special Judge, Datia in Special Sessions Trial No.11/2005 is hereby affirmed.

The appeal fails and is hereby dismissed.