Back
2017 Supreme(MP) 114
IN THE HIGH COURT OF MADHYA PRADESH
Alok Verma and Ved Prakash Sharma, JJ.
Guddu and others v. State of M.P.
Criminal Appeals No.1084 of 2007 and 68 of 2008 (Indore) : against the judgment of conviction dated 7.9.2007, passed by
Additional Sessions Judge, Sendhwa District Barwani in
Sessions Trial No.233 of 2003; Decided on 7.3.2017.
Ms. Vidhushri Sumanlata for appellants in Criminal Appeal No.1084/2007;
Ms. Rekha Shrivastava for appellant in Criminal Appeal No.68/2008;
Milind Phadke for respondent/State.
Headnote:Penal Code, 1860 -- Ss.395, 396 and 397 -- Arms Act, 1959 -- S.25/27 -- offences under -- convicted and sentenced under by trial Court -- appeal -- no major contradictions and omissions pointed out during cross-examination -- recovery on basis of facts disclosed by prosecution witness cannot be doubted -- recovery of scooter not irrelevant -- it is confirmed by all prosecution witnesses that two gun shots fired during incident -- it cannot be said that his death was not result of gun shot injury -- impressions found on empty cartridge and bullet matched with gun seized from Ganpat which indicates his presence -- trial Court not committed any irregularity -- conviction and sentence under sections 395 and 396 of IPC confirmed -- both appeals dismissed.
Held : Accordingly, in our considered opinion, the learned trial Court did not commit any irregularity or illegality in convicting the present appellants under the aforementioned sections. Both the appeals filed by the appellants are devoid of any force and liable to be dismissed and dismissed accordingly.
Accordingly, the conviction of the appellants under sections 395 and 396 of IPC is confirmed. The sentence of life imprisonment awarded on them and sentence of 10 years each under section 395 of IPC is also confirmed.
naM lafgrk] 1860 & /kkjk 395] 396 rFkk 397 & vk;q/k vf/kfu;e] 1959 & /kkjk 25@27 & mica/kksa ds v/khu vijk/k & fopkj.k U;k;ky; }kjk mica/kksa ds v/khu nks"kfl} rFkk naMkfn"V & vihy & izfrijh{k.k ds nkSjku fdlh vlaxfr rFkk foyksiu ugha crk;k x;k & vfHk;kstu lk{kh }kjk rF;ksa ij vk/kfjr izdV cjkenxh ij lansg ugha fd;k tk ldrk & LdwVj dh cjkenxh vlaxr ugha & ;g lHkh vfHk;kstu lkf{k;ksa }kjk iq"V fd ?kVuk ds nkSjku nks Qk;j canwd ls fd, x, & ;g ugha dgk tk ldrk fd mldh e`R;q canwd dh {kfr dk ifj.kke ugha & [kkyh dkjrwl rFkk xksyh ij ikbZ xbZ Nki xuir ls tCr canwd ls esy [kkrh gS tks mldh mifLFkfr minf'kZr djrh gS & fopkj.k U;k;ky; }kjk dksbZ vfu;ferrk dkfjr ugha dh xbZ & HkkŒnaŒlaŒ dh /kkjk 395 rFkk 396 ds v/khu nks"kflf} rFkk naMkns'k iq"V & nksuksa vihy [kkfjtA
vfHkfu/kkZfjr % rn~uqlkj gekjh lqfopkfjr jk; esa fo}ku fopkj.k U;k;ky; us orZeku vihykFkhZx.k dks iwoksZDr mfYyf[kr /kkjkvksa ds v/khu nks"kfl} djus esa dksbZ vfu;ferrk ;k voS/krk dkfjr ugha dhA vihykFkhZx.k }kjk izLrqr nksuksa vihysa fdlh Hkh cy jfgr gksus ls [kkfjt gksus ;ksX; gS rFkk rn~uqlkj [kkfjt dh tkrh gSA
rn~uqlkj HkkŒnaŒlaŒ dh /kkjk 395 rFkk 396 ds v/khu vihykFkhZx.k dh nks"kflf} iq"V dh tkrh gS] mUgsa vf/kfu.khZr vkthou dkjkokl dk naMkns'k rFkk izR;sd dks HkkŒnaŒlaŒ dh /kkjk 395 ds v/khu 10 o"kZ dk naMkns'k Hkh iq"V fd;k tkrk gSA ¼iSjk 16 ls 20½
Verma, J. -- 1. This common order shall govern disposal of Criminal Appeal No.1084/2007 and Criminal Appeal No.68/2008.
2. These appeals arise out of judgment passed by the learned Additional Sessions Judge, Sendhwa, District- Barwani in Session Trial No.233/2003 dated 7.9.2007 whereby the appellants in Criminal Appeal No.1084/2007 Guddu s/o Uttam Barela, Kalusingh s/o Vithal Barela, Saniya s/o Galjiya Barela, Ganpat @ Bhayala s/o Galjiya Barela, Mangilal s/o Gala Barela, Krishna s/o Dilsingh Barela and Jahadar s/o Gandas Barela were convicted under sections 395 and 397 of IPC and they were sentenced to 10 years rigorous imprisonment and life imprisonment respectively with fine of Rs.300/- and Rs.500/- respectively with default stipulation. Similarly, the appellant in Criminal Appeal No.68/2008 Sunil Singh s/o Chatarsingh Rajput was convicted under sections 395 and 396 of IPC. He was sentenced to 10 years rigorous imprisonment and life imprisonment with fine of Rs.300/- and Rs.500/- with default stipulation. Appellants Sunil Singh, Ganpat and Mangilal were also convicted under section 25/27 of Arms Act. They were also sentenced to 1 year RI and fine of Rs.2,000/-.
3. The trial Court acquitted accused Sildar s/o Bhagirath Barela, Tukaram s/o Jadhav and Rajesh s/o Madan Soni from all charges. Accused Bhagirath @ Kalia remain absconding till date. Accused Padmsingh s/o Natthu Pawra expired during the trial.
4. The story of prosecution in brief is that the complainant Arvind Kumar Shah was residing in a house situated in village Betakbadi, Khetia. On 12.5.2003 at about 1:15 a.m., when the complainant Arvind Shah and his wife were sleeping in a room, his father-in-law Prafullchand was sleeping outside in a varandah. His father-in-law called his wife on which door was opened and on opening of the door, about 15-20 unknown persons entered into the house, two of them were having country made revolver and remaining persons were having swords and lathis. They started committing loot on all the family members of the complainant. They snatched chain from neck of the complainant, Kumudanibi, his wife Hansmukhi, daugher-in-law Ujjwala and they also looted other silver jewellery and cash of Rs.6,15,000/- which was kept in the house by the complainant as marriage of his daughter was to be solemnized shortly. When the miscreants were looting the family members, son of the complainant Sanju came out, he tried to stop them from looting the property and tried to catch two miscreants, on which two gun shots were fired on him, one narrowly missed him and created an abrasion on his head and another hit in his abdomen, due to which, he sustained fatal gun shot injuries and died subsequently in a hospital at Bombay.
5. During the investigation, the appellants were arrested. On their disclosure memo under section 27 of Evidence Act, various properties recovered from their possession. Seven accused persons which are before this Court were identified by the complainant, during the test identification parade. The jewellery recovered from their possession was also identified by the complainant and his family members.
6. The appellants faced trial for charges under sections 395, 396, 397 of IPC and section 25/27 of Arms Act and sentenced to rigorous imprisonment as aforesaid.
7. Aggrieved by the order of conviction and sentence, these appeals are filed on the following grounds :
(i) from the prosecution evidence, it is not clear who were having country made revolver, who were having lathis and who were having swords;
(ii) the deceased Sanjay died due to septicemia and infection, and therefore, the sentence awarded on them is erroneous;
(iii) there was no other injury was found on body of the deceased, and therefore, it was clear that no other weapon was used during commission of the crime;
(iv) the test identification parade of the accused persons was held after two months of the incident, and therefore, such identification is doubtful;
(v) the test identific
