VIRENDRA SINGH Vs. STATE OF M P

JUDGEMENT

(1.) This appeal under Section 374 of the Code of Criminal Procedure 1973 preferred by the accused/appellant is directed against a Judgment dated 11 th July 1998 in Sessions Trial No. 437/1993 by the First Additional Sessions Judge, Dabra, district Gwalior thereby convicting the accused/appellant for commission of murder of one Mansukh Lal, which punishable under Section 302 of I.P.C. and sentencing him to suffer imprisonment for life.

(2.) Shorn of unnecessary details, the facts material for the adjudication of the present case as per prosecution case are that on 2 nd August 1993, at about 2 in the noon, the deceased Mansukh Lal with his Mouser gun accompanied with Devi Singh (PW-3), Sewaram ((PW-4) and Shri Ram (PW-5) was going on foot to village Khujriyai by the side nearby railway track. When they reached near Arru Railway Crossing, the accusedappellant alongwith other absconded accused came from their front side and surrounded him. It is alleged that the appellant with an intention to kill him fired from his 12 bore country-made pistol which hit him on the left shoulder. Thereafter, the accused with the help of others snatched the Mauser gun from deceased and fled away from the spot. Having heard the noise of firings, the Gate Man Agnu Prasad informed the incident of firings to the Station Master of Dabra Railway Station, who in turn, informed the same to the Police Station Dabra. The Police Party rushed to the spot and conducted the search of the suspected accused. One culprit was caught raid handed by the persons reached on the spot after incident and another was caught by the police party. The looted gun was also recovered form the another culprit on the spot. The injured was shifted to the Civil Dispensary, Dabra for medical examination and treatment. The F.I.R. was lodged at the Police Station Dabra.The investigation was set in motion. The injured was medically examined in the Civil Dispensary Dabra and after recording the statement of the injured by the treating doctor, he was referred for further treatment to J.A. Group of Hospitals at Gwalior. During treatment in J.A. Hospital Gwalior, the injured Mansukh Lal died on 11 th August 1993. After investigation, the charge-sheet against accused Rakesh and Awadesh Singh showing accused/appellant Virendra as absconded was filed before the criminal court. On appearance of the accused-appellant before the criminal court at Gwalior and after his arrest, the supplementary charge-sheet was filed. During trial, the accused Rakesh and Awadesh Singh became absconded. After trial, the accused/appellant Virendra Singh stood convicted and sentenced as mentioned herein above. Being aggrieved by his conviction and sentence, the appellant has come up before this court.

(3.) The grounds for assailing the judgment of conviction and sentence by the appellant are that all the eye-witnesses do not corroborate the incident and the involvement of accused/appellant Virendra Singh. The entire prosecution evidence clearly goes to show that in the incident two unknown persons were arrested subsequently by the help of public and police personnels after the incident and from whom the seizure of Mauser gun belonging to the deceased Mansukh Lal and the country-made pistol used in the incident for causing injuries to the deceased was effected and the present appellant was not one of them. It is contended that no weapon of crime was recovered from the possession of the present accused. It is submitted that only after medical examination and giving first aid to the injured Mansukh Lal in the Civil Dispensary at Dabra, the doctor recorded his dying declaration which involved the present accused with the alleged crime. It is submitted that the said dying declaration is not supported by any other independent evidence. It is further pointed out by the learned counsel that the F.I.R., case diary-statement of the deceased, recorded during investigation, were neither exhibited nor proved by the Investigating Officer. Even the Investigator of the case did not appear before the trial Judge to prove the F.I.R. and other related documents executed by him, during investigation. Apart from the above, the statement of the doctor performing postmortem on the body of the deceased also does not support the prosecution version. Hence, according to the submission of the learned counsel, the accused-appellant was convicted and sentenced without going through the aforesaid aspect of evidence, which findings are liable to be set aside. Accordingly, it is prayed that by allowing the appeal, the accused/appellant be acquitted of the offence.