J U D G M E N T

[Passed on this 4 th day of October, 2021]

Per Justice Deepak Kumar Agarwal This appeal has been filed by the appellant against the judgment of conviction and order of sentence dated 9th April, 2009 passed by the Court of Sessions Judge, Gwalior, in S.T.No.342/2007 convicting the appellant under Sections 302/34 for committing murder of deceased Brijendra Singh, 307 and 450 of IPC for attempting to commit murder of complainant Sanjay Mangal by trespassing in his shop and sentencing him to suffer life imprisonment with fine of Rs.1,000/-, five years R.I. with fine of Rs.1,000/- and five years R.I. with fine of Rs.1,000/- respectively with default stipulation.

2. The case of the prosecution in short is that on the date of incident i.e. 12.1.2007 at 7 pm complainant Sanjay Mangal along with his nephew Sharad Mangal, Kushal Mangal and other staff was sitting in his shop – Firm Kalicharan Durga Prasad Saraf, at Sadar Bazar, Morar and Guards Brijendra Singh and Chandan Singh were outside the shop performing their duties, at that juncture, appellant/accused Girraj Ghuraiya along with his accomplice came and accomplice of the appellant fired from Katta on Guard Brijendra Singh and appellant Girraj by entering the shop fired on the complainant with intention to kill him, but complainant bowed down and as a result, the shot hit at the showcase. Gunpowder and pellets hit at right side of his cheek and elbow of right hand. The complainant cried for help, but as the accomplice of the appellant was present outside with Katta, therefore, nobody came to save him. Thereafter, complainant along with members of staff tried to caught hold of appellant, but appellant and his accomplice by showing Katta ran away towards Chik Santar. The complainant thereafter noticed that Guard Brijendra Singh after sustaining gunshot fell down and appeared to be in serious condition. His 12 bore gun was on his shoulder. It is the case of the prosecution that appellant Girraj Ghuraiya along with his accomplices on 24.7.2002 had committed murder of elder brother of complainant, namely Vishnu Mangal, and in the said case appellant Girraj Ghuraiya, Ballu Gurjar, Sonu and Raju Kankar were convicted by the Sessions Court. During appeal, appellant Girraj and Raju were released on bail. The complainant further alleged in the FIR that with intention to kill, appellant Girraj Ghuraiya along with his accomplice has fired on him and committed murder of Guard Brijedndra Singh. Before the incident, appellant used to threaten him on telephone and the report of which has been lodged at police Station Kotwali and Morar. Guard Brijendra Singh was taken to hospital, but he died on the way. On his report, crime under Sections 302, 307, 34 of IPC and Sections 25/27 of the Arms Act bearing Crime No.30/2007 was registered at police Station, Morar, Distt. Gwalior, against appellant Girjraj and one unknown person.

3. Autopsy of Guard Brijendra Singh was performed. As per the autopsy report, he died due to shock and haemorrhage as a result of firearm injury within 6 to 24 hours since postmortem. Gunshot was fired with close range. During investigation, from the spot one loaded Katta of 315 bore, one missed cartridge of 315 bore, one live cartridge of 315 bore, one empty cartridge of 315 bore, one live cartridge of 12 bore, one bullet of 315 bore, one belt, one cap, plain and blood stained soil along with glass pieces of showcase were seized by ASI P.S.Tomar. Injured Sanjay Mangal was sent for medical examination and as per his MLC (Ex.P/13) multiple wounds over right side of face and forearm were found and he was referred for expert opinion to CMO. Statements of the witnesses were recorded by the police. On 21.7.2007 appellant/accused Girraj was arrested. His accomplice Ravi Sikarwar died during an encounter at Pahadgarh, Distt. Morena. After completion of investigation, charge-sheet has been filed against the appellant under the aforesaid sections and case was committed to t