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State v. Mahendra Pratap Singh - GOVERNMENT APPEAL No. 142 of 1981  RD-AH 1799 (29 July 2005)
Government Appeal No. 142 of 1981
State of U P..................................................................Appellant
Mahendra Pratap Singh.....................................................Accused
(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.
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