YASHPAL SINGH Vs. STATE OF M P

JUDGEMENT

(1.) Learned counsel for the parties are heard on I.A. No. 10121/2013, an application under section 389 CrPC filed by the appellant for suspension of sentence of conviction and grant of bail. From the records it is seen that the appellant herein is said to have fired with a gun, causing injuries to deceased Shri Sunil Naik. The incident took place on 27.11.2008, at about 4:45 p.m., when elections to the State Legislative Assembly were in progress and in Constituency No. 45, Prithvipur in Polling Booth at Ward No. 13 Naya Khera, District Tikamgarh, it was reported that the accused persons namely, Brijendra Singh, the sitting MLA, along with appellant Yashpal Singh, Vinay Singh, Krishnapal Singh and various other persons, were indulging in booth capturing and were instigating the voters not to vote for Shri Sunil Naik, but to vote for Shri Brijendra Singh. At this stage the followers and representatives of Shri Sunil Naik, who were present on the spot called him on a mobile phone and when he came there and inquired from the accused persons and Shri Brijendra Singh, the sitting MLA, as to why they were indulging in booth capturing and intimidating the voters, Shri Brijendra Singh is said to have instigated Yashpal Singh, the present 2 appellant, to fire and kill Shri Sunil Naik. As a result, appellant Yashpal Singh is said to have fired on Shri Sunil Naik, who suffered a gunshot injury on his head. He was taken to the Hospital in Tikamgarh, where he expired. The appellant has been prosecuted for an offence under section 302 IPC and having been convicted to undergo life imprisonment, has filed this appeal.

(2.) In support of his application under section 389, Shri Manish Datt, learned Senior Advocate, made a twofold submission. His first submission was that the allegations against the appellant are not proved. His second contention was that as appellant Yashpal Singh has also suffered a gunshot injury on his thigh, it is a case of self-defence and, therefore, the conviction under section 302 is unsustainable.

(3.) Shri Manish Datt, learned Senior Advocate, took us through the statement of PW-33 Prem Narayan, the gun man of Shri Sunil Naik; PW32 Devshankar Kurmi, another gunman; and, PW43 Ramesh Chandra Dogra, to say that the case as put forth by the prosecution is not proved from their statement and, therefore, the allegations against the appellant are not established. Learned Senior Advocate also took us through the report, Ex.D-12, with regard to the injuries sustained by appellant Yashpal Singh i.e. the first information report lodged with regard to the injuries sustained by Yashpal Singh; the medical evidence available, and tried to emphasize that based on the injuries sustained. FIR was also registered at the instance of Yashpal Singh, but the State Government filed an application for setting it aside and finally the High Court and the Supreme Court rejected the prayer of the State Government and the FIR was directed to be registered with regard to the injuries sustained by appellant Yashpal Singh. Contending that the prosecution has miserably failed to prove the facts leading to the sustaining of injury by appellant Yashpal Singh and placing reliance on various judgments of the Supreme Court, learned Senior Advocate tried to indicate that there being no explanation on the part of the prosecution with regard to the injuries sustained by the accused, the appellant is entitled for raising a plea of self-defence and the case of the prosecution should be dis-believed on this count itself.