KESHARIYA Vs. STATE OF M P

JUDGEMENT

(1.) This appeal under Section 374(2) of the Code of Criminal Procedure, 1973, preferred by the accused/ appellant has been directed against a Judgment dated 8 th September 05 rendered in Sessions Trial No. 178/05 by the Sessions Judge Gwalior (M.P.) convicting thereby the accused for commission of the murder of Balkishan on 7 th April, 05 at about 10-30 a.m., at village Suro, Police Station Maharajpura and sentencing him to suffer life imprisonment with a fine of Rs.1,000/- and in default to undergo additional simple imprisonment of six months. However, by the said impugned judgment, the accused stands acquitted of the charge for offence attempt to commit murder of one Rajkumar, punishable under Section 307 of I.P.C., who also received gun shot injuries in the same incident.

(2.) Briefly stated the relevant facts of the case are that on 7 th April 05, at about 10-30 a.m. in village Suro, Balkishan after taking bath at the public well of village returned back to his house. When he reached near to his house, accused Kesharia fired two gun shots towards his side causing thereby injuries on his left side of hip and another on the chest. He fell down and after sometime died on the spot. His mother Mayabai (PW-1), uncle Gopal (PW-2), sister Kalawati (PW-10) and brother Chhaviram (PW-3), as per prosecution case, were the eye-witnesses to the incident of firing. It is alleged that at the time of incident, there was a rumor in the village that Rajkumar, younger brother of deceased Balkishan had developed an illicit relation with the daughter of the accused Kesharia, namely, Kaloo, therefore, when accused returned to village back he again fired two gun shots which caused injuries to the leg of injured Rajkumar while he was taking bath at the well. On receiving information about firings in the village, Yashwat Singh (PW-14) of Police Station Behat with police force rushed to the spot and on the basis of the details furnished by Mayabai (PW-1), he recorded Dehati Nalishi as per Ex.P/1, which was subsequently sent through constable Suresh Singh (PW-13) to Police Station Maharajpura. Thereafter, a crime was registered vide Ex.P/12 against the accused by Ramlakhan Singh (PW-8) for commission of offence punishable under Sections 302 and 307 of I.P.C. The investigation in the matter was started. After issuing notices to the witnesses and preparing Lash Panchnama vide Ex.P/3, the dead-body of the deceased was sent for conducting post-mortem examination. So also, injured Rajkumar was referred to the doctor for examination of the injuries sustained by him during incident. After completion of usual investigation, the charge-sheet was filed before the competent court having the jurisdiction. On committal, the trial was commenced. After trial, the accused was convicted and sentenced for commission of offence punishable under Section 302 of I.P.C., as mentioned herein before, hence, this appeal before us.

(3.) The contention of the learned counsel appearing for the accused/appellant is that the impugned judgment of conviction and sentence passed by learned Sessions Judge is against the facts of the case and also against the principles of Criminal Law, hence, same is liable to be set aside. It is submitted that the injured witness Rajkumar, brother of deceased has not supported the prosecution version and, therefore, the accused/appellant was acquitted of the charge of attempt to commit murder of injured Raj Kumar, punishable under Section 307 of I.P.C. by the trial court itself. It is contended that as per statement of Chhaviram (PW-3), he went to the police station and came with police force. He did not disclose anything about the incident to the police, which raises doubt on him. The source of information received by the police was suppressed which goes to indicate that Dehati Nalish (Ex.P/1) was written after investigation. It is stated that the statements of the eye witnesses are belied by the medical evidence and contained many contradictions and omissions on material particulars, which raises suspicion to place reliance on them. Apart from the above, the eye witnesses are closely related and had inimical relations with accused and, therefore, their evidence was not at all worthy of credence. Despite that the learned trial Judge wrongly believed the statements of related witnesses and convicted the appellant solely on their testimonies. Therefore, it is prayed that by allowing the appeal of appellant, the impugned judgment of conviction and sentence be set aside and the appellant be acquitted of the charge under Section 302 of I.P.C.