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2003(7) Supreme 281
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
N. Santosh Hegde & B.P. Singh, JJ.
Munna @ Surendra Kumar -Appellant
versus
State of M.P. -Respondent
Criminal Appeal No. 1269 of 2002
Decided on 16-9-2003
Counsel for the Parties :
For the Appellant : Dr. T.N. Singh, Sr. Advocate, Lakhan Singh Chauhan and C.M. Patel, Advocates.
For the Respondent : Sidharth Dave and Ms. Vibha Datta Makhija, Advocates.
Held : It is clear from the evidence of PW-3 that the appellant had come down from the Baithka of Premnarayan or Vidya Ram as the case may be, onto the road and proceeded towards the Baithka of PW-12. In that process he not only came to the road level but also came within the proximity of the injured witnesses. This fact, if accepted, decimates the two arguments addressed on behalf of the appellant; one regarding blackening of wounds at the entry point and the other in regard to the trajectory of the pellet wound which, according to the learned counsel for the appellant, had gone straight and not in a downward angle which would have been the consequence if the appellant was shooting from the Baithka which was about 5 ft. higher than the road level. Because there was proximity between the appellant and PWs 5 and 6 and the appellant being on road level the injury would not also be in a downward angle. Similarly, having perused the evidence led by the prosecution through PWs 3, 4 and 6, we are in unison with the High Court that the discrepancies and accompanying contradictions pointed out by the learned counsel in their evidence are not of such nature as would make their evidence incredible. In this context, we may also notice that PW-5 though treated as hostile witness, has admitted in her evidence that she suffered the injuries at the place and time as stated by the prosecution. The only area in which she did not support her previous statement was in regard to the identity of the assailants. Otherwise, she has supported the prosecution case. In our opinion, her evidence also corroborates the evidence of PWs 3, 4 and 6 to the extent of the taking place of incident as stated by the prosecution. Therefore, we are of the opinion that the High Court on the facts of this case was justified in reversing the judgment of the trial court. (Para 7)
(ii) Indian Penal Code, 1860-Sections 302, 307 and 324-Killing by gun shot-Recovery of 12 bore gun which was found to have a defective firing pin-However, barrel of gun showed signs of discharge-This fact not brought out in course of arguments-Prosecution not having relied upon this piece of evidence-Fact that the gun was not properly recovered, would not make prosecution case weaker.
Held : Having perused the entire prosecution evidence, we find though this fact was brought out in the course of arguments, the prosecution has nowhere based its case on this fact. It may or may not be true that such a gun was recovered but since the prosecution has not relied upon this piece of evidence, the fact that it was not properly recovered, would not make the prosecution case any weaker; at the most that piece of evidence would have to be rejected. Any argument that in the absence of the recovery of a gun from the appellant, there could be no conviction, will also have to be rejected. It may be possible that the learned counsel for the prosecution out of his over-zealousness might have pointed to the trial court this fact which certainly is neither a legal evidence nor the basis of the prosecution case. (Para 8)
JUDGMENT
Santosh Hegde, J.-This appeal against the judgment and conviction made by the High Court of Madhya Pradesh, Gwalior Bench in criminal appeal (Case No. 270 of 1986) is filed by the 4th accused before the trial court who was 4th appellant before the High Court who has been convicted by the High Court by reversing the judgment of the trial court for offences punishable under Sections 302, 307, 324 IPC and was sentenced to undergo imprisonment for life under the principal Section 302 IPC and other varying sentences for other lesser offences. Brief facts necessary for the disposal of this appeal are :
2. Original accused A-1 Premnarayan and his supporters which included the appellant herein were angered by the fact that Harsewak PW-12 was allowing their enemies Bharta Gawli and Moharman to sit at his doorsteps, therefore, said Premnarayan complained to Dilip Singh PW-3 to prevent PW-2 from allowing those two persons from sitting at his doorsteps. It is stated that on 7.6.1983 at about 8 p.m. in the village Gata of which the complainant, accused and other witnesses were residents, the appellant herein brought out his 12 bore gun to settle his disputes with PW-12 and without heeding to the request of PW-3 to allow him to settle the dispute, the appellant started firing indiscriminately, consequent to which one Raghuvar son of Naktu died and Ms. Mithilesh PW-5 and Parasram PW-6 were injured. According to prosecution, PWs 3, 4, 5, 6, 12 and 18 witnessed the incident in question. It is the further case of the prosecution that Puttu Singh Yadav PW-19 who was then SHO of Mehgaon Police Station, on coming to know of the said incident, came with his Police force to Gata village. He found on the way PWs 5 and 6 injured witnesses being taken to the hospital in a bullock-cart hence he directed Kundan Singh PW-8, Police Constable to accompany them to the Police Station and came to the place of incident and on an information given by PW-3 recorded Ex. D/4 Dehati Nalishi and sent the same with PW-14 another Constable to the Police Station where a crime was registered on the basis of said complaint. On completion of investigation a chargesheet under Sections 302, 109, 307/109, 324, 324 and read with 109 IPC was submitted against four accused persons including the appellant herein which came to be tried by the 1st Additional Sessions Judge, Bhind, M.P. Before the trial Court the prosecution relied upon the evidence of PWs 3 to 6, 11, 12 and 18 who according to the prosecution, were the eye witnesses to the incident in question apart from other official witnesses. During the trial, PWs 5 and 11 did not support the prosecution case. While PWs 3, 4, 6, 12 and 18 supported the prosecution case. The defence had taken a specific plea before the trial court that there were two factions in the village who were opposed to each other and consequent upon a certain misunderstanding, there was a fight between the two factions which included the complainant and others on one side and the accused and others on the other. In the said fight, the complainant party resorted to shooting by fire-arms indiscriminately consequent to which many people got injured and the victim Raghuvar died, PWs 5 and 11 got injured apart from the injuries suffered by the accused themselves. They also contended that they had filed a cross complaint against the members of the complainant party. The trial court disbelieving the prosecution case acquitted all the accused primarily on the ground that the evidence of eye witnesses being full of contradictions cannot be relied upon even though they were injured witnesses and so far as PW 6, 12 and 18 are concerned, they were absconding for nearly 2 months and their statements were recorded only after they became available to the investigating agency, hence it was not safe to rely on their evidence and the incident as projected by the prosecution could not have taken place. Therefore, giving benefit of doubt, it acquitted the accused per
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