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2021 Supreme(MP) 563
IN THE HIGH COURT OF MADHYA PRADESH
Atul Sreedharan and Sunita Yadav, JJ.
Indu @ Indrapal Singh v. The State of M.P.
Criminal Appeal No. 146 of 2009 (J); Decided on 28.7.2021*
Vikash Mahawar for appellant No. 1; L.N. Sakle for respondent No. 2; Manhar Dixit, Panel Lawyer for respondent/State.
Headnote:
(1) Penal Code, 1860 -- Ss. 302, 307, 302/34 and 307/34 -- Arms Act, 1959 -- Ss. 25 and 27 -- appellant No. 1 had enmity with deceased -- appellant No. 1 carried gun and appellant No. 2 carried axe -- appellant No. 1 fired at deceased-- death on spot -- another injured -- appellant No. 2 did not participate in any manner in causing injuries to deceased -- eye witness did not attribute any act to this accused -- no previous enmity of this accused with deceased -- offences under sections 302/34 and 307/34 not proved beyond reasonable doubt against appellant No. 2 -- seizure of gun and cartridges from possession of appellant No. 1 duly proved -- also proved that said firearm was used to commit crime -- conviction of appellant No. 1 under sections 25 and 27 of Arms Act in accordance with law and facts -- established by evidence -- any failure or omission on part of investigating officer cannot render case of prosecution doubtful -- appeal filed by appellant No. 1 dismissed -- appeal filed by appellant No. 2 allowed. (1996) 8 SCC 217 and (2003) 2 SCC 518 followed. [Paras 13 to 16]
(2) Penal Code, 1860 -- S. 34 -- to invoke section 34 it must be established that criminal act was done by more than one person in furtherance of common intention of all -- common intention is intention to commit crime actually -- each accused person can be convicted of that crime, only if he participated in that common intention. [Para 12]
¼1½ naM lafgrk] 1860 & èkkjk 302] 307] 302@34 rFkk 307@34 & vk;qèk vfèkfu;e] 1959 & èkkjk 25 rFkk 27 & vihykFkÊ Øekad 1 dh e`rd ls 'k=qrk & vihykFkÊ Øekad 1 ds ikl canwd Fkh vkSj vihykFkÊ Øekad 2 ds ikl dqYgkM+h & vihykFkÊ Øekad 1 us e`rd ij xksyh pykbZ & LFky ij e`R;q & ,d vU; {kfrxzLr & vihykFkÊ Øekad 2 us e`rd d¨ {kfr;ka dkfjr djus esa fdlh Òh çdkj Òkx ugha fy;k & çR;{kn'kÊ lk{kh us bl vfÒ;qDr dks fdlh d`R; ds fy, mRrjnk;h ugha Bgjk;k & bl vfÒ;qDr dh e`rd ls iwoZ 'k=qrk ugha & vihykFkÊ Øekad 2 d¢ fo#) èkkjk 302@34 rFkk 307@34 d¢ vèkhu vijkèk ;qfDr;qDr lansg ls ijs lkfcr ugha & vihykFkÊ Øekad 1 d¢ dCts ls canwd rFkk dkjrwl dk vfÒxzg.k lE;d~ :i ls fl) & ;g Hkh lkfcr fd vijkèk djus ds fy, mDr vk;qèk dk mi;ksx fd;k x;k & vk;qèk vfèkfu;e dh èkkjk 25 rFkk 27 d¢ vèkhu vihykFkÊ Øekad 1 dh n¨"kflf) fofèk vkSj rF;¨a d¢ vuq:i & lk{; ls fl) & vUos"k.k vfèkdkjh dh fdlh foQyrk vFkok y¨i ls vfÒ;¨tu i{k dFku lansgkLin ugha gks ldrk & vihykFkÊ Øekad 1 }kjk çLrqr vihy [kkfjt & vihykFkÊ Øekad 2 }kjk çLrqr vihy eatwjA ¼1996½ 8 ,l lh lh 217 rFkk ¼2003½ 2 ,l lh lh 518 vuqlfjrA ¼iSjk 13 ls 16½
¼2½ naM lafgrk] 1860 & èkkjk 34 & èkkjk 34 dk vkJ; ysus d¢ fy, fl) fd;k tkuk vko';d fd lc d¢ lkekU; vk'k; d¨ vxzlj djus d¢ fy, vkijkfèkd dk;Z ,d ls vfèkd O;fDr;ksa }kjk fd;k x;k & lkekU; vk'k; okLro esa vijkèk djus dk vk'k; gksrk gS & ml vijkèk d¢ fy, çR;sd vfÒ;qDr O;fDr d¢oy rc n¨"kfl) fd;k tk ldrk gS tc mlus ml lkekU; vk'k; esa Òkx fy;k gksA ¼iSjk 12½
JUDGMENT
Yadav, J. -- 1. This appeal has been filed against the judgment dated 29.11.2008 in Sessions Trial No.2/2007, passed by Sixth Additional Sessions Judge, Fast Track Court, Chhatarpur by which appellant No.1 Indu @ Indrapal Singh has been convicted under section 302 of IPC and sentenced to undergo life imprisonment and a fine of Rs.5000/-,in default of payment of fine, additional rigorous imprisonment for 2 years, under section 307 of the Indian Penal Code rigorous imprisonment for 7 years and a fine of Rs.2,000/- in default of payment of fine additional rigorous imprisonment of one year, under section 25/27 of the Arms Act rigorous imprisonment for 3 years and a fine of Rs.1,000/-, failing which simple imprisonment for six months and Appellant No.2 Devendra Singh @ Pappu Raja has been convicted under section 302/34 and sentenced to undergo life imprisonment and a fine of Rs.5,000/-, in default of payment of fine, additional rigorous imprisonment for 2 years, under section 307/34 of the IPC rigorous imprisonment for 7 years and a fine of Rs.2,000/- in default of payment of fine additional rigorous imprisonment of one year.
2. For the sake of convenience, the appellants shall be referred as accused persons and the respondent as prosecution hereinafter.
3. The case of prosecution, in brief, is that accused Indu @ Indrapal had enmity with deceased Khuman Patel because Khuman had slapped Indu three years before. On 17.9.2006 at about 7:00 p.m. in village Darguwa in the field of Bachchu Patwari, accused Indu @ Indrapal and Devendra Singh @ Pappu Raja arrived where Khuman Patel, Santosh Patel and Shankar Patel were working. Accused Indrapal was carrying a gun and Devendra Singh @ Pappu Raja had an axe in his hand. Accused Indrapal uttered obscene words and ordered Khuman, Santosh and Shankar to stand in a line. Then he asked whom should he shot at first. When Khuman asked the accused why were they killing them, accused Devendra Singh said "kill them all". After that Accused Indu @ Indrapal fired at Khuman Patel on his chest who died on the spot. When Shankar tried to escape, accused Indu @ Indrapal fired at him too. The bullet hit Shankar's left hand. Devideen Patel and Santosh, who were present at the time of incident in the same field, came running to their village and told the entire incident to sarpanch Harsevak Patel, Nandu Patel and Balkishan Patel.
4. Injured Shankar was taken to the Police Station Satai where he lodged a report. The report was registered under crime No. zero. The FIR was registered by Police Station Pipat as the place of incident falls within its jurisdiction.
5. The concerned police station completed the investigation and filed the charge sheet against the accused persons under sections 302/34,307/34 of the Indian Penal Code and Sections 25 and 27 of the Arms Act.
6. The learned trial Court framed charges for the offence under sections 302, 307 of the IPC and sections 25, 27 of the Arms Act against the accused Indu @ Indrapal and also framed charges under sections 302/34, 307/34 of the IPC against accused Devendra Singh @ Ghappu Raja. The accused persons denied their guilt and stated that they are innocent and pleaded for trial raising defence of false implication.
7. The learned trial Court after trial of the case and on the basis of the evidence and material came on record found the accused persons guilty of the offences as mentioned above and sentenced them as per the impugned judgment.
8. As per the prosecution story, Shankar Patel (PW-12) Santosh (PW-6) and Devideen (PW-14) are the eye witnesses. Santosh (PW-6) has corroborated the story of prosecution. However, Shankar Patel (PW-12), who had lodged the First Information Report, has turned hostile and only corroborated the part of the prosecution story about his receiving gun fire injury on his left hand. This witness has denied that it was accused Indrapal who shot at him with intent to kill him.
9. Devideen (PW-14) has corroborated the prosecution st
