KRISHNAVTAR SHARMA Vs. STATE OF M P

JUDGEMENT

(1.) The appellant having suffered conviction and sentences under section 307, Indian Penal Code and under sections 25 and 27 of the Arms Act in the hands of Additional Sessions Judge, Satna in sessions Trial No. 39 of 1979 decided on 25-10-1979; is challenging the said conviction and sentences in this appeal under section 374(2) of the Code of Criminal Procedure.

(2.) The prosecution case against the appellant is that on 29-1-1979 at about 4 p.m. some boys were playing Gilli-danda at Uchehra, District Satna and Chunnilal (P. W. 4) was one of them. The Gilli hit the appellant whereby the appellant got annoyed and scolded the said Chunnilal. On this the complainant Nanhelal came to the spot and favoured Chunnilal. Thereafter, there was some altercation between Nanhelal and the appellant. The altercation was, however, pacified with the intervention of Ram Prakash (D.W. 2). The facts so far are admitted. The prosecution, however, further alleges that after some time of the aforesaid altercation the appellant came back to the complainants house with a pistol and started abusing. As soon as the complainant Nanhelal came cut of his house the appellant took the pistol from his pocket and pointed the same at the chest of the complainant. Thereafter, with an intent to kill the complaint it is alleged, the appellant fired the pistol but it did not go off. At that very point of time Ramsia (P.W. 5), the brother of the complainant, came on the spot and gave a Danda blow on the hand of the appellant because of which the pistol fell down. The pistol was lifted by one Sunder who in turn gave it to Ramsia. Thereafter, Ramsia and the complainant went to the police station with the pistol where the complainant lodged the first information report. The pistol and one live cartridge from inside the same was seized by the police. Thereafter, the District Magistrate gave permission to prosecute the appellant for violation of the Arms Act. A challan was accordingly filed praying prosecution of the appellant under section 307 Indian Penal Code and under sections 25 and 27 of the Arms Act. The learned Additional Sessions Judge believed the evidence of complainant Nanhelal and his brother Ramsia (P.W. 5) and held that there was sufficient corroboration of the version of these two witnesses in the evidence of Chunilal (P. W. 4) and also Abdulla (P.W. 2). The appellant was accordingly convicted for offence under section 307, Indian Penal Code and bas, been sentenced to 2 years R.I. whereas for offences under sections 25 and 27 of the Arms Act be has been sentenced to 6 months R.I. and 2 years R.I., respectively. All the three sentences are to run concurrently. Being aggrieved by this conviction and sentences the present appeal has been filed.

(3.) The appellant has denied the subsequent part of the incident which forms the basis of the conviction. His grievance is that the whole story of his coming back to the spot with a pistol firing the same and subsequently the pistol being dropped because of Ramsias hitting the appellant, is wholly unworthy of reliance. It is submitted that no injury was found on the arm of the appellant which is sufficient, to show that the story relating to appellant pointing out pistol on the chest of the complainant and firing the same was a sheer concoction. It is also submitted that one Sunderlal was supposed to pick up the pistol from the ground but that Sunderlal has not been examined. It is submitted that adverse inference should have been drawn against the prosecution for non examining Sunderlal. It is also submitted that complainant Nanhelal and Ramsia (P.W.5) are real brothers and hence their testimony cannot be accepted as the testimony of independent witness. Nanhelal is reported to be a child of 9 years and his testimony cannot be accepted without corroboration from independent witnesses-Ramlal (P.W.I), Abdul Latif (P.W.2) and Premlal (P.W.3) have not supported the prosecution version. On the basis of the aforesaid it is submitted that the whole story is doubtful and facts on record are not sufficient to convict and sentence the appellant.