IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE JUSTICE VIVEK RUSIA &

HON'BLE SMT. JUSTICE SUNITA YADAV th ON THE 19 OF JULY, 2024 CRIMINAL APPEAL No. 12770 of 2023 BHOOP SINGH AND OTHERS Versus MUNESH AND OTHERS Appearance:

Shri H.K. Shukla - Advocate for the appellants.

Shri Ajit Singh Bhadoria - Advocate for respondents No. 1 to 4 / accused.

Shri A.P.S. Tomar - Public Prosecutor for respondent No .5 / State.

JUDGMENT Per: Justice Sunita Yadav Heard on the question of admission.

This criminal appeal u/S. 372 (2) of Cr.P.C. has been filed being aggrieved by the judgment dated 13.9.2023 passed by Second Additional Sessions Judge, District Morena (M.P.) in Sessions Trial No.10/2016, whereby respondents No. 1 to 4 / accused persons have been convicted under Sections 323/34, 324/34 and 325/34 of IPC, however, acquitted for the offence under Sections 294, 307, 307/34 of IPC as well as Section 25(1-B)A of Arms Act.

Prosecution case is that on 18.10.2015 at about 6:00 pm, respondents No. 1 to 4 / accused hurled filthy abuses to the complainant and assaulted the Signature Not Verified injured persons.

Learned counsel for the appellants argued that learned trial Court has wrongly acquitted the respondents No. 1 to 4 / accused for the offence under Sections 307, 307/34 of IPC as well as under Section 25(1-B)A of Arms Act despite having sufficient evidence. It is further argued that gunshot injury was found on the body of the injured and firearm has also been recovered from respondent No. 1 - Munesh. Injured Bhoop Singh has specifically stated that Munesh fired gunshot which hit him. Respondents No. 1 to 4 were the aggressor who committed the offence in pre-determined manner and with common intention. Further argument is that learned trial Court has also sentenced the accused persons for only one year for commission of offence u/S. 325 of IPC which is on the much lower side. Hence, prayed to admit this appeal for final hearing.

Learned counsel for respondents No. 1 to 4 / accused vehemently opposed the appeal and argued that learned trial Court on the basis of evidence available before it has rightly passed the impugned judgment and no interference is warranted in the same.

Heard learned counsel for the rival parties and perused the record.

The prosecution examined complainant Gopal (PW-1), injured Bhoop Singh (PW-2) and Rajveer Singh (PW-3), Head Constable Omkar Singh (PW-4), Arms Clerk J.P. Sharma (PW-5), Pooran Singh (PW-6), Beti Bai (PW-7), Dr. Suresh Soni (PW-8), Police Inspector Malkhan Singh (PW-9), Lajjaram Singh (PW-10) and Investigating Officer P.S. Bundela (PW-11).

Signature Not Verified Learned trial Court has considered the documentary as well as oral evidence of the prosecution witnesses. The perusal of record indicates that the fact that accused Munesh fired gunshot at Bhoop Singh is not mentioned in Dehati Nalsi (Exh. P/1) which was registered after a delay of four hours as well as FIR, which was registered on the basis of Dehati Nalsi. As per the statement of PW-8 Dr. Suresh Soni, injured Bhoop Singh was having entry wound on his chest and exit wound on his back, however, injured Bhoop Singh in his court-statement stated that gunshot was received by him on his back which is contrary to the medical evidence adduced by the prosecution. Complainant in the dehati nalsi mentioned that injured Bhoop Singh received injury on his chest by spear. Also, in view of the fact that allegedly the gunshot was fired from the distance of 5-6 feet, however, blackening and hole were found on the tshirt of Bhoop Singh, the case of the prosecution becomes doubtful. The medical and scientific evidence belied the ocular evidence in the present case as discussed above. Even the used cartridge was not recovered from the place of incident and recovery of weapon used to fire gunshot has not been proved as the independent witness of recovery turned hostile. Under these circumstances, learned trial Court has rightly acquitted the accu