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STATE versus MAHENDRA PRATAP SINGH

High Court of Judicature at Allahabad

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State v. Mahendra Pratap Singh - GOVERNMENT APPEAL No. 142 of 1981 [2005] RD-AH 1799 (29 July 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Government Appeal No.  142  of 1981

State of U P..................................................................Appellant

Versus

Mahendra Pratap Singh.....................................................Accused

          Respondent          

Hon'ble M.C.Jain,J.

Hon'ble M.Chaudhary,J.

(Delivered by Hon'ble M Chaudhary,J.)

This is a government appeal  filed on behalf of the State from judgment and order dated 9th of October 1980 passed by Sessions Judge Jhansi in sessions trial no.135 of 1975 State versus Mahendra Pratap Singh acquitting the accused of the charge levelled against him  under sections 304 Part II, 307 and 324 IPC and section 25 of the Arms Act.

Brief facts giving rise to this appeal are that at 1:40 p.m. on 12th of February 1975 Laxman Das lodged an FIR at police station Lalitpur alleging that he and his brother Prahlad used to run their buses and at about 1:00 p.m. that day they had gone to bus stand Lalitpur to see that their bus no.USG 5519 scheduled to start from Lalitpur bus stand at 1:10 p.m. starts in time; that   Bus no. MPR 5393 used to reach Lalitpur bus stand at 12:45 noon and  to leave the bus stand at 1:00 p.m. after taking passengers for Jhansi;  that day that bus got late  in reaching the Bus Stand by 15 minutes or so  and did not leave the bus stand upto 1:10 p.m.; that then Prahlad asked the driver of that bus to take his bus so that they may get their bus ready to leave the bus stand as time of that bus was already over;  that thereon Mahendra Pratrap Singh told that his luggage kept over the bus was being unloaded and that bus will not start till entire  luggage would  be taken  down  and that thereon Prahlad took exception thereto as the passengers sitting in his bus started shifting  to that bus  MPR 5393 which was causing loss to him.  Thereon Mahendra Pratap Singh got annoyed and fired at Prahlad with licensed rifle thereby causing injuries to Prahlad and one  Ram Ratan, Dhanna Lal and one other standing nearby.  Immediately Laxman with the help of one Shambhu Dayal, Shikhar Chandra, Vimal Kumar, Mangal and his driver Matin caught hold of Mahendra Pratap Singh alongwith the rifle; and in the meanwhile some one threw a stone at Laxman Das hitting him at his head. Immediately injured Laxman Das taking his injured brother Prahlad and other injured Devendra and Dhanna Lal in a push-cart went to the Civil Hospital Lalitpur situate adjacently where they were medically examined by Dr S.P.Singh  Medical Officer between 2:00 p.m. to 3:00 p.m. In the meanwhile injured Ram Ratan also reached the Hospital  and he was also medically examined by Dr S.P.Singh at 3:15 p.m. there.   After leaving the three injured including his brother Prahlad at Civil Hospital Lalitpur Laxman Das got report of the occurrence scribed by one Vimal Kumar and sent him alongwith other persons apprehending Mahendra Pratap Singh alongwith the rifle with which he fired to the police station.  On reaching the police station at a distance of about 1 ½ furlongs  from the Hospital Vimal Kumar handed over written report of the occurrence to the police there  and also handed over Mahendra Pratap Singh alongwith his rifle to the police.  HC Sukhram Singh prepared check report of the occurrence  on the basis of the written report handed over to him at the police station and made entry regarding registration of the crime in the GD (Exts Ka 31 & Ka 32).  He also prepared  memo of the rifle alongwith the cartridges handed over to him there (Ext Ka 27).  Accused  Mahendra Pratap  Singh was  confined in the lockup at the police station.

Injured Prahlad, Devendra Singh, Laxman Das, Dhanna Lal and Ram Ratan were medically examined by Dr S.P.Singh, Medical Officer, Civil Hospital Lalitpur  between 2:00 p.m. to 3:15 p.m. the same noon.  Medical examination of injured Prahlad by Dr S.P.Singh at 2:00 p.m. revealed below noted injuries on his person:

1. Gun shot wound of entry ½" x ¼" on lower part left side chest 6 ½ " below and lateral  to the left nipple with margins inverted. No  blackening and tattooing was present around the wound. The wound was bleeding.

2. Gun shot wound of exit ¾" x ½" on left side back 2" lateral to the mid line with margins everted.  The wound was bleeding.

The doctor opined that the injuries were caused by firearm  and  fresh in duration. The injuries were kept under observation.

      Medical examination of injured Devendra Singh revealed below noted injuries on his person:

1. Gun shot wound of entry ¾" x ½" x abdominal cavity deep on abdominal wall left side 2.5" above the anterior superior iliac spine with margins  inverted. Omentum coming out  of the wound and bleeding present. No blackening or tattooing was found present around the wound.

2. Gun shot wound of exit 1.5" x ¾" on back 1" below to anterior superior iliac spine with margins everted and bleeding present. The doctor removed a metal piece projecting  from the wound.

The doctor opined that the injuries were caused by  firearm and fresh in duration.  Injuries were kept under observation.

Medical examination of  Dhanna Lal  at 3:00 p.m. by Dr S.P.Gupta revealed below noted injuries on his person:

1. Lacerated wound 7.5" x 2.5" x bone deep on right upper arm in the upper part  with communited fracture  of humerus bone and severance of blood vessels and nerves of the arm. Bleeding present.

2. Lacerated wound 4.5" x 1.5" on posterior side of right arm through and through communicating to injury no.1.

The doctor opined that the injuries were caused by firearm and fresh in duration.

Injured Ram Ratan was medically examined by Dr S.P.Singh at 3:15 p.m.  which revealed below noted injuries on his person:

1. Gun shot wound of entry 1/4" x 1/8" on right arm lateral side 1" above the elbow line lower 1/3rd with margins inverted.

2. Gun shot wound of entry ¼" x 1/8" on lateral side  in upper 1/3 on right forearm   1 ½" below injury no.1 with margins inverted.

3. Gun shot wound of entry ¼" x 1/8" on left forearm middle 1/3rd,     5" below the elbow in the posterior part lateral side with margins inverted.

4. Gun shot wound of entry ½" x ¼",    1 ½" above the  highest part of iliac crest left side abdomen with margins inverted.

All the wounds were bleeding.

The doctor opined that all the wounds were caused by firearm and fresh in duration. Injuries no. 1 to 3 were simple and injury no. 4 was kept under observation.

Medical examination of Laxman Das  revealed a lacerated wound 1 ½" x ½" scalp deep on left side occipital region 4 ½" above and behind the  ear.  The wound  was bleeding.

The doctor opined that the wound was caused by blunt object,  simple in nature and fresh in duration.

      Injured Prahlad , Devendra Singh, Dhanna Lal and Ram Ratan were admitted in the Hospital.  On  information sent by  the doctor Sri B.D.Sharma  SDM Lalitpur  recorded dying declarations of injured Prahlad, Devendra Singh and Dhanna Lal respectively (Exts Ka 17 to Ka 19).  It appears that relations of injured Prahlad got him relieved  from the Civil Hospital Lalitpur at 4: 30 p.m. the same day for being taken to Medical College Jhansi (Ext Ka 11).     Relations of injured Devendra Singh also got him relieved from the Civil Hospital Lalitpur for being taken to Medical College Jhansi but he succumbed on the way while being rushed to the Medical College Jhansi at about 11:45 p.m..  Injured Ram Ratan left the Hospital  of his own on 14th of February 1975 at about 6:00 p.m. without informing  the Hospital Authorities . Injured Dhanna Lal remained admitted in the Hospital where his right hand was amputated the same day as it was necessary for saving his life.  

On receiving the information regarding death of injured Devendra Singh while being taken to Medical College Jhansi the crime was altered under section 302 IPC (Ext ka 6).

SI K.P.Singh to whom investigation of the crime was entrusted recorded statements of the witnesses. He also went on the spot, inspected the scene of occurrence and prepared its site plan map. He also recovered bloodstained clothes of injured Ram Ratan and Dhanna Lal and prepared their memos (Exts Ka 43 and Ka 44). Inquest proceedings on the dead body of Devendra Singh were conducted by SI K.P.Singh who prepared inquest report of the dead body of Devendra Singh (Ext Ka 5) and other necessary papers.

Autopsy on the dead body of Devendra Singh  conducted by Dr Radha Mohan Agarwal, Superintendent District Hospital Jhansi on 13th of February 1975 at 3:45 p.m.  revealed below noted ante mortem injuries:

1. Oval shaped lacerated wound 1" x ¾" x  abdominal cavity deep on left flank of the abdomen  3 ¾"  from the umbilicus  and 2" from  left anterior superior iliac spine  and  small part of omentum was coming out.

2. Lacerated wound 1 ½" x 1" x 1 ½" placed obliquely downwards on right thigh  at upper and front part 2" below anterior superior iliac spine. No blackening or charring was present at the margins of the wound.

On  internal examination brain and both the lungs were pale.   4th  lumbar vertebra cracked in pieces and one  elongated metallic piece   1 ¼" long removed from 4th lumbar vertebra and a small piece of metal from thigh muscles.  Peritoneum and coils of small intestine were lacerated at places. The doctor opined that the death was caused due to shock and haemorrhage as a result of laceration of coils of small intestine  and fracture of vertebrae about one day ago.

On 15th of February 1975 Station officer Chhotey lal Tripathi returned back from leave and then he took up investigation of the case in his hands.

The investigating officer also got  blood stained and simple grit and koltar collected from the scene of occurrence and blood stained clothes of the injured  sent to Forensic Science Laboratory UP for chemical examination if those articles contained human blood and if so for classification of blood group.   Rifle and cartridges recovered from accused Mahendra Pratap Singh and the metallic pieces recovered by the doctors from the wounds of Devendra Singh were sent to Forensic Expert for Expert's opinion if the same were fired with that very rifle.

After completing the investigation and obtaining necessary sanction of District Magistrate Lalitpur to prosecute the accused under section  25 of the Arms Act (Ext Ka 47)  the police submitted charge sheets  against the accused accordingly  (Exts Ka 48 & Ka 49).

A perusal of the report of the Chemical Examiner goes to show that blood stained shirt  taken off from the person of injured Prahlad and blood stained clothes taken off from the person of Ram Ratan and Dhanna Lal  contained human blood and the blood stained clothes of Prahlad were found of Group ''A' and the blood stains on the belongings of Ram Ratan and Dhanna Lal of  group ''B'.  Rest of the clothes contained human blood  but blood group could not be ascertained. Blood stains on concrete and Koltar were found disintegrated  (Exts Ka 52 & Ka 53).

Report of Forensic Expert of Forensic Science Laboratory UP Lucknow revealed that three pieces recovered from the wounds of the deceased could be the part of one bullet fired with rifle no.243.

After framing of the charge against the accused the prosecution examined nineteen witnesses in its support. Out of these witnesses examined by the prosecution Laxman  Das  (PW 4), Matin Khan (PW 8), Prahlad (PW9), Vimal Kumar Tewari (PW 10) and Shikhar Chandra (PW 13) appeared as eye witnesses of the occurrence.  CW 1 Dhanna Lal and CW 2 Ram Ratan,  both the injured and C W 3 Sukh Nandan were examined by the Court as court witnesses.  Testimony of rest of the witnesses is more or less  of formal nature.  PW 1 Dr S.R.Gupta, Radiologist, Maharani Laxmi Bai Medical College Jhansi who     X-rayed chest and abdomen of injured Prahlad stated that nothing  abnormal was detected in the X-ray. He proved the X-ray report (Ext ka 4).PW 2 Harnam Singh is one of the panchas of the inquest report of Devendra Singh prepared by SI K.P.Singh. PW 3 Dr S.P.Singh who medically examined injured Prahlad, Devendra Singh, Laxman Das, Dhanna Lal and Ram Ratan has proved the injury reports (Exts Ka 6 to Ka 10). He also proved bed head tickets of injured Prahlad, Ram Ratan, Devendra Singh and Dhanna Lal who were admitted in the Civil Hospital (Exts Ka 11 to Ka 14). PW 5 Kashi Ram  and PW 7 Gaya Singh Chauhan are clerks in RTO office Jhansi. They have filed copies of the time table of buses running on  Jhansi- Madanpur route and Jhansi- Jamni route.  PW 6  Dr Kulbir Singh Handa   posted as House Surgeon, Maharani Laxmibai Medical College Jhansi deposed that at about 11:45 p.m. on 12.2.75 dead body of a person named Devendra Singh belonging to  Dongra Khurd, police station  Narhat, District Lalitpur was brought to the emergency ward and he  got the dead body kept in mortuary and  sent memo regarding thereto to Station Officer police station Nawabad (Ext Ka 23). PW 11 Radhey Shyam Misra,   Ballistic Expert, Forensic Science Laboratory UP Lucknow has proved the report (Ext Ka 29). PW 12 Radha Mohan Agarwal, Superintendent District Hospital Jhansi  who conducted autopsy on the dead body of Devendra Singh on 13th of February 1975 at 3:45 p.m. has proved the post mortem report (Ext Ka 30). PW 14 HM Raghubans Singh  deposed  that at 1:40 p.m. on 12th of February 75 Sri B D Sharma SDM Lalitpur came to the police station Lalitpur Kotwali and asked if the case was registered against the accused and  on getting reply in affirmative he went  to police lock up and talked to accused Mahendra Pratap Singh.  PW 15 Clerk Constable Sukhram Singh who prepared check report on the basis of written report of the occurrence handed over at the police station  and made  entry regarding registration of the crime in GD has proved these  papers (Exts Ka 31 & Ka 32).  He also proved GD entry regarding alteration of the crime under section 302 IPC (Ext Ka 36).   PW 16 Chandra Bhan is the witness of the recovery memo of blood stained and simple concrete and bitumen collected from the scene of occurrence (Ext Ka 41). PW 17 SI K.P.Singh who conducted investigation initially has proved the police papers.  PW 18 Station Officer  Chhotey Lal Tripathi  who took up investigation of the crime in his hands on 15th of February 1975 and after completing the investigation  submitted charge  sheets against the accused has proved the police  papers.  PW 19 Sri B.D.Sharma SDM Lalitpur who recorded dying declaration of injured Devendra Singh on 12.2. 75  at 1:45 p.m.  and that of injured Prahlad and Dhanna Lal  has proved the dying declarations (Exts Ka17 to Ka 19).

All the five eye witnesses examined by the prosecution namely PW 4 Laxman Das, PW 8 Matin Khan, PW 9 Prahlad,  PW 10 Vimal Kumar Tewari and PW13 Shikhar Chand  have supported the prosecution case deposing all the facts of the occurrence from the beginning to the end as stated above. CW1  Dhanna Lal, the injured also corroborated them stating likewise.  CW 2 injured Ram Ratan, the injured has narrated the facts  of the  incident of firing at the bus stand but he stated that he could not see as to who fired at them. However CW 3 Sukh Nandan  has not supported the  prosecution   case at all.

The accused denied the alleged occurrence altogether stating that he was got implicated in the case falsely on account of enmity. He also denied recovery of the rifle and cartridges from his possession  at the time and place  and in the manner alleged by the prosecution.

The accused examined DW 1 Chandan Singh   in his defence. His testimony is not of much use to the accused as he  emphasized  that Raghunath Singh, father of accused Mahendra Pratap Singh was elected  MLA in the election in the year 1974 and was quite an influential person.  He also stated that Laxman Das and Prahlad sons of Gopal Das  who own buses are quarrelsome persons  and used to pick up quarrel with the passengers and others and were  involved in litigation  but he could not withstand his cross-examination  on this point as he admitted that they did not pick up any quarrel  with him.  He also stated that   in his personal knowledge  they were not prosecuted in any case by any person.  

On a perusal of the parties' evidence on the record the learned trial judge disbelieved the prosecution case and evidence.   In brief, he held  that the  alleged  day incident took place before  1:00 p.m.; that the injured reached the  Hospital at 1:10 p.m.; that an  effort was made  by the police to malign  Sri B.D. Sharma SDM; that testimony of the eye witnesses  was not  worthy of credence; that the evidence  of ballastic expert was irrelevant  and  that the incident did not  take place in the manner alleged by  the prosecution nor the accused was apprehended  on the spot. He therefore held the accused not guilty of the charge levelled against him  resulting in his acquittal.

Feeling dissatisfied with the impugned judgment and order this government appeal has been filed on behalf of the State assailing acquittal of the accused respondent.

Learned AGA for the State  appellant  argued vehemently that since the impugned judgment  is perverse and unreasonable  as relevant and convincing evidence and material  on record  have been  unjustifiably eliminated,  evidence  has to be reappreciated for the purpose of  ascertaining  if the accused  really committed  any offence or not.  On  the other hand learned counsel for the accused  respondents laid much emphasis  upon the fact that  the learned  trial judge  has  given cogent and convincing reasons for acquitting the accused and  therefore  no  interference is called for  therewith.

Learned  counsel for the accused respondent laid  much emphasis upon the fact that   according to the prosecution case one  shot was fired by the assailant with rifle  but  four persons  got injured and  out of four  one sustained  fatal injury resulting  in his death which is not possible by one shot.  In our opinion the said argument  advanced by the learned counsel for the respondent has got no substance.  

A perusal of the   "Medical  Jurisprudence And Toxicology" ( Edited by N.J. Modi Twentieth  Edition Second Impression 1979 at page 219) goes to show that  rifles have  long barrels with  varying  bore from 0.22 to 0.303 and over of an inch, they have a firing range upto and well over 1000 yards and may  cause serious or fatal injury  to a man or an animal.  In book  of world renowned authority  "FIREARMS INVESTIGATION, IDENTIFICATION  AND EVIDENCE "  by General  Hatcher, Jury and  Weller  edited by Thomas  G. Samworth ( New 1987 Edition at page 417)  it is mentioned that  in general, a full metal jacketed rifle bullet will not stop in  the human body, even though it traverses the body from end to  end. An instance of seven casualties inflicted  by an American Sniper with single bullet has been quoted.  The bullet is supposed  to have passed completely through the seventh body.  It also mentions  a case in which   an armor-piercing  8 mm rifle  bullet  ricocheted off a brick building;  on striking the building the jacket was stripped off the bullet and the core broke in  two pieces.  One fragment killed the driver of a passing vehicle, entering his head;  the other fragment killed his companion who was riding in the front seat beside  him, entering his heart.

In the instant case the accused  respondent was apprehended  on the spot  and rifle no. 243 was recovered from the  accused respondent.  A perusal of  memo of the rifle   prepared by the police official at the police station and  that  of the  report of the  Ballistic Expert goes to show  that rifle no. 243 was  of  0.30 bore  made in Belgium.  There were  four live  cartridges in rifle,  three in its  magzine  and one in  barrel.  On medical examination of injured Devendra Singh  the doctor removed a metal piece  projecting from the wound.  At the time of autopsy on the body of Devendra Singh  one elongated   metallic piece  1-1/4" long  was removed from 4th lumbar  vertebrae and  a small  piece  of metal from thigh  muscles.  The Ballistic Expert of Forensic Science Laboratory, Lucknow  examined these three  pieces and  opined that  bloodstained  copper jacket  of  bullet, one piece of lead core and one small copper piece (EB-1 to EB-3) could  be the  part of one  bullet fired with  rifle no. 243 ( Ext 29).

It appears that  as altercation transpired  between  accused respondent  Mahendra Pratap Singh on one hand and  Prahlad  on the other  and  getting annoyed the  accused respondent  fired  with rifle at  Prahlad;  the bullet passed through his body and struck Devendra Singh lacerating his peritoneum  and  small intestine and  breaking 4th lumbar  vertebra  into pieces  got fragmented and owing to its  high velocity  few  fragments of the bullet  struck Ram Ratan  causing injuries to him  and few  splintered   pieces  of the   projectile caused  grievous injuries to  right arm of Dhanna Lal with  the result  that  his seriously wounded hand had to be amputated in the hospital. Bullet of high velocity   rifle  may shatter  the organ hit  and  if struck with  bone  the bone may crack into pieces and bone  pieces are indriven with force.

PW 17 SI K.P. Singh, Investigating Officer who  conducted the investigation  initially   deposed that he  inspected  the scene of occurrence at the pointing out of  Laxman Das and Vimal Kumar Tewari.  Both these  witnesses namely, PW4 Laxman Das and PW10 Vimal Kumar Tewari stated that  they did not know  injured Devendra since before and it was  only after the incident  that they   learnt  his name.  Under the circumstances it was not possible for these witnesses to tell as to which of the injured persons  excepting  Prahlad  was standing near  him at which place. Hence the sequence  shown  by the investigating officer in the  site plan map as to  where injured Devendra, Dhanna Lal and Ram Ratan were standing at the scene of occurrence  is of no use.  Moreover, none of  these two witnesses  has  stated anywhere  as to which of the injured was standing  behind Prahlad.    They categorically stated that at  the time of  incident they did not see as to  at which place the three injured namely  Devendra, Dhanna Lal and Ram Ratan  were standing   nor  they knew   injured Devendra  since before.  Thus  the said argument  advanced by the learned counsel for the accused respondent has got  no life and is  repelled.  

Learned counsel for the accused respondent laid much emphasis  upon the  fact that the incident  did  not take place in the manner  alleged by the prosecution. This argument too has got no substance. The said incident  took place  on 12th  of February, 1975  at 1:10 p.m. and FIR  of the said incident was lodged at the  police station  Lalitpur  situate at a distance of some  two furlongs  from the scene of occurrence  at 1: 40 p.m the same afternoon.    During  this time  three  seriously injured namely Prahlad, Devendra and Dhanna Lal were taken to the hospital situate adjacently to the Bus Stand and it was immediately thereafter that Laxman  Das got  report of the occurrence  scribed  by Vimal Kumar Tewari and after putting his signatures thereon  asked Vimal Kumar Tewari to go to the police station alongwith his companions  taking  Mahendra Pratap Singh with the rifle and hand over  written report alongwith the accused and the rifle to the police there. Under  the circumstances the FIR of the occurrence  was lodged  promptly  at the police station.  Injured  Prahland   and Devendra Singh  were medically examined by doctor S.P. Singh, Medical Officer, Civil Hospital, Lalitpur at 2:00 p.m. and 2:20 p.m. respectively the same noon.  Injured Laxman Das, Dhanna Lal and Ram Ratan were medically examined  by him  between 2:35  p.m.  to 3:15 p.m. same noon. Doctor  found injuries  on the person of injured Prahlad, Devendra Singh, Dhanna Lal  and Ram Ratan caused by firearm and fresh in duration and  a lacerated wound on   occipital region  of Laxman Das caused by some blunt  object  such as stone and fresh in duration.  Thus the prosecution version and testimony of the  eye witnesses stand well corroborated by the  medical evidence and  FIR of the occurrence  lodged promptly at the police station.

Medical evidence  has lent support to the ocular  testimony of eye witnesses namely Laxman  Das( PW4), Matin Khan (PW 8), Prahlad  ( PW9), Vimal Kumar Tewari (PW 10) and Shikhar  Chand  (PW 13).  PW 4  Laxman Das, brother of  injured Prahlad   and  the first informant   has narrated all the facts of the  said occurrence from beginning to the end deposing that  as accused Mahendra Pratap Singh  was trying  to fire again he with the help of few others namely Shambhu Dayal, Vimal Kumar Tewari, Shikhar Chand, Mangal Driver and  his Driver Matin  caught hold of  accused Mahendra Pratap Singh and in the scuffle sling of the rifle got broken and at that  very time someone  threw  stone hitting  him  at his head and  that  thereafter he  taking the  three injured  namely  Prahland, Devendra Singh and  Dhanna Lal  on a push cart went to the hospital and the  remaining persons  remained at the bus stand catching hold of  accused Mahendra Pratap Singh  alongwith the rifle.  PW8 Matin Khan , PW9 Prahlad, PW10 Vinal Kumar Tewari and PW13 Shikhar Chand   have stated  likewise corroborating Laxman Das (PW 4) on all material aspects.  All these witnesses were  subjected searching  and gruelling cross- examination  but nothing substantial or useful to the accused  could  be elicited therefrom.  Shorn of few contradictions  which are of very trivial nature and  immaterial their statements are  consistent on all material aspects. All the eye witnesses examined by the prosecution appear to be truthful and  straightforward witnesses who have given  an honest  account of the  occurrence witnessed by them.

PW4 Laxman Das  and PW9 Prahlad  are real brothers whose presence at the scene of occurrence  cannot be doubted as their bus used to start  from  the bus stand at 1:10 p.m. for Jhansi and  they used to  reach the bus stand to see and  ensure that the bus  leaves the bus stand in time.   PW8  Matin Khan is their driver who was  driving the bus.   PW 9 Prahlad is also an injured witness. PW13 Shikhar Chand  used to  run betel shop at the bus stop  at that time and it was near his shop the said incident took place.   PW10 Vimal Kumar Tewari  scribed  the report of the occurrence lodged by Laxman Das at the police station promptly.  Hence  presence of none of these witnesses at the  scene of occurrence  can be doubted.  In this case medical evidence lending   support to the prosecution case as to the time of occurrence and the weapons used therein is so clinching  that there is no room  for doubting the testimony of the  eye witnesses  examined by the prosecution.  Recovery of  bloodstained bitumen  from the place of occurrence  by the investigating officer  soon after the  incident coupled with sworn testimony of  eye witnesses  leaves no room for doubting the  place of  occurrence.

Learned counsel for the accused  respondent also  laid  much emphasis upon the fact that  dying  declaration of  injured Prahlad,  Devendra Singh and Dhanna Lal  was recorded  by Sri B.D. Sharma, SDM, Lalitpur in the hospital soon  after the  occurrence and  all the three  injured  stated that    at about  1:00 p.m. that very noon  some  dispute  took place between Prahlad  and one  passenger and in the meanwhile  that passenger fired at Prahlad  thereby  causing  injuries to  them and they did not  know the assailant since before  and could recognize  him if seen later.  It has come in evidence that accused Mahendra  Pratap Singh is the  son of  Raghu Nath Singh who was a sitting MLA at that time  and quite an influential person of Lalitpur.  The gun in question  was licensed  gun of Raghu Nath Singh, father of the accused.  The accused is named in the FIR  lodged promptly  by Laxman Das, brother of injured Prahlad  at the police station.  PW15 HC Sukh Ram Singh deposed that  at 1:40 p.m. on 12th of February, 1975 the  written report  lodged by Laxman Das  was handed over at the police station and  Vimal Kumar Tewari also handed over  accused Mahendra Pratap Singh  with  the rifle   and cartridges  to him at the police station and on the basis thereof he prepared check report and registered the crime and prepared memo regarding  rifle  handed over  to him and  Mahendra Pratap Singh was confined  in the  lockup; that at that very time Sri B.D. Sharma SDM Lalitpur  came  at the police station and asked   if  the  case had been registered  and as he replied in the  affirmative  telling him that the accused was confined in the lockup  he told  that he  did not know as to  whose son  he was and  then he went  at the   lockup and   talked to accused Mahendra Pratap Singh and went away.  In view of all these  facts the possibility is very much  there  that  SDM  B.D. Sharma  who recorded  dying declarations of  three  injured  being in  the influence of  Raghu Nath Singh the sitting MLA and  prominent person of the  city did not record the dying declarations of the three  injured  correctly and  honestly in utter disregard of his moral and official duties just to spoil the case.  Since the accused was apprehended on the spot and was  well  known to the  injured  since before and  the occurrence  took place in the broad day light after altercation between  Prahlad and the accused it is  difficult to believe that the  injured  would not have named the assailant in their statements to the SDM.

In view of the  facts that  accused respondent  Mahendra  Pratap Singh was apprehended by Laxman Das, brother  of  injured Prahlad  and his companions on the spot and licensed rifle of his father with which  he fired at  Prahlad was recovered  from his possession then and there, these dying declarations recorded by PW19 BD Sharma, SDM Lalitpur  wrapped in suspicion  have to be ignored.

For the foregoing discussion, we are of the view that the finding of acquittal of accused Mahendra Pratap Singh recorded by the court below is perverse and cannot be sustained in law as it  is based on faulty and erroneous appreciation  of evidence resulting in miscarriage of justice. Hence the judgment and  order passed by the trial judge cannot be maintained in law and is liable to be set aside.

The  impugned judgment and order acquitting accused Mahendra Pratap Singh  of the charge levelled  against him is hereby set aside.  The appeal is allowed.  Accused respondent is convicted under section 304  part II, 307 and 324 IPC and section 25  of the Arms Act.  Charge under section 325 IPC should  have been framed against the accused for causing grievous  hurt to Dhanna Lal but  on that   count he stands  charged  under section 324 IPC.  However it does not make  any difference as substantive sentences to be awarded shall run concurrently.  The accused convicted  under sections 304  part II IPC and section 25 of the Arms Act is sentenced to ten years' and two years' rigorous imprisonment respectively thereunder as it is a  fit case for  awarding maximum sentence provided  under section 304 part  II IPC.  He is  awarded seven years' rigorous imprisonment  under section 307 IPC and  six months' rigorous  imprisonment under section 324 IPC.  All the sentences shall run concurrently.

The accused is on bail.  CJM, Jhansi is directed to get him  arrested and lodged in jail to serve out the sentences imposed upon him.  

Office is directed to send certified copy of the judgment alongwith  record of the case  to the court below immediately to ensure  compliance under intimation to this  court within three months from today.

Dated: 29th of July, 2005

Govt. Appeal No.142 of 1981/P.P.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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