JIWANLAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Food Corporation of India was constructing a godown on a Nazul plot situated in village Namna Kala in the out -- skirts of Ambikapur, District Surguja. The contractor was from Raipur. Deceased Leelaram was looking after the construction on his behalf. The villagers of Namna Kala had raised objection as to this proposed construction. It appears that the appellant, who is also resident of the same village, was one amongst such protestors. On 14-5-1984, at about 10.00 a.m., the appellant stopped Puranram (P. W. 2) and Shambhoo (P.W. 3) who were employed by Leelaram to dig pits for the said construction. When these labourers stopped work, Leelaram consoled them and saying that he was going to report the matter in the police station, started on his last drive on his motor-cycle. The story is that at a short distance the appellant seated himself on the pillion of the said motor cycle and when the motor cycle reached near the I.T. I. building, Leelaram was shot with a firearm on the chest as a result of which he fell to the ground. The appellant was seen running away from the scene towards Amar Petrol Pump by Rajendra Prasad Mishra (P.W. 5). The police arrived on the scene after receiving a telephonic information of the incident and Dehati Nalishi (Ex. P. 1) was recorded forming the basis of formal first information report (Ex. P. 23). Case was registered under S. 307, I.P.C. Leelaram was removed to the hospital where he succumbed to the injuries. Intimation of his expiry was sent to the police and the case was converted under S.302, I.P.C. The dead body of Leelaram was sent for post-mortem examination. Dr. P. K. Shrivastava (P. W. 9) as per his autopsy report (Ex. P. l6) found both carotids, jugular subsclavial vessels on both sides arteries punctured besides the external wounds corresponding to these injuries. He opined that the cause of death was haemorrhage and shock resulting from injuries to vessels of chest and neck by gun shot. Leelaram's death by gun shot injuries is not in dispute. Within a couple of hours the appellant was apprehended. He was found in possession of a loaded 12 bore country-made pistol (Art. A and B), a live cartridge of the same bore (Art. C) and six inches long knife. All these articles were seized vide Ex. P. 12 by Investigating Officer R. D. Diwan (P. W. 21) and were kept in sealed cover. Thereafter the appellant was formally arrested and his confessional memorandum Ex. P. ll was recorded. On the basis of this confessional statement, one 12 bore empty cartridge (Art. E) was recovered from the drain at the instance of the appellant. The same was seized vide Ex. P. 14. The appellant was tried, convicted under S. 302, I.P.C. and sentenced to life imprisonment, vide judgment dated 21-7-1986, passed in Sessions Trial No. 108/ 84 of Surguja sessions Division which is under challenge in this appeal.

(2.) The fact that Food Corporation of India was constructing godown which was being supervised by the deceased has not been disputed. Similarly it has also not been disputed that the villagers had protested against the said construction. On the date of incident death of Leelaram by gun shot wounds has also not been assailed.

(3.) The submission is that had the appellant intended to kill Leelaram he could have shot him dead at the construction site. There was no reason for him to have accompanied the deceased on his motor cycle. The evidence shows that the appellant was seated on the pillion of the motor cycle and, therefore, there is no possibility that the fatal shot could have been fired by him which hit the deceased on the chest region. We have perused the evidence of Rajendra Prasad Mishra (P.W.5). He lives in the neighbourhood where the appellant lives and, therefore, is acquainted with him. In cross-examination there are suggestions to the effect that this witness was inimical towards the appellant as the later was prosecuted on a criminal charge on a report lodged by the said witness. We agree with the learned trial Judge that the said prosecution in which the appellant was ultimately acquitted being subsequent to the murder of Leelaram will not have any bearing so far as the credibility of Rajendra Prasad Mishra in this trial is concerned. We are satisfied on perusal of statement of P.W. 5 that he is a reliable witness and has rightly considered so by the learned trial Judge. From his evidence it is clear that the appellant seated on the pillion of the motor cycle being driven by the deceased crossed him on the road and shortly thereafter he heard the stopping sound of the motor cycle engine followed by the report of the gun shot. When he looked behind at a distance of about 50- 60 yards, he saw Leelaram lying on the ground with his motor cycle fallen nearby and the appellant running towards Amar Petrol Pump. From his evidence it is clear that at that crucial time there was no one else nearby the scene of occurrence. Therefore, in view of this evidence it was for the appellant to have explained the circumstances in which he was sighted running away from the injured man immediately after the shooting. Instead of tendering any explanation in this behalf the appellant has denied everything in his statement under S. 313, Cr. P. C. It appears that P.W.5 informed of the incident to Umashankar Manikpuri (P.W. 1), an associate of the deceased, and then Umashankar Manikpuri went towards the scene of occurrence and lodged the first information report. However, during trial P.W. 1 turned hostile and disowned everything. The trial Court was justified in concluding that the negative evidence of Umashankar Manikpuri, in the circumstances of the case, will have no serious consequence on the outcome of the case. Within a couple of hours the appellant was apprehended by the Investigating Officer, R. D. Diwan. He was brought on a motor cycle to a nearby hotel where his person was searched and his confessional memorandum was recorded. As already observed, a Deshi 12 bore Katta duly loaded and one live cartridge besides other things were recovered from his person. His confessional memorandum led to the recovery of empty cartridge (Art. E) from the scene of occurrence. From the evidence of Shri Diwan, it is clear that all the articles after seizure were sealed and then sent for expert opinion to F.S.L. Sagar. Ballistic expert report Ex. P. 30 shows that 12 bore pistol seized from the appellant was in working order and showed signs of discharge. However, the empty cartridge recovered at the instance of the appellant from near the scene of occurrence was found without percussion cap and, therefore, data of firing pin impression and other marks were not available for comparison. Therefore, the expert could not give any opinion as to whether the said cartridge was fired or was not fired from the pistol sent for opinion. We consider that this aspect is not of any great consequence. The pistol seized from the possession of the appellant soon after the incident is country-made. Such crude weapons do not have the precision of mechanism to be expected from weapons of renowned manufactures. Therefore, the possibility of the cap getting breached after fire cannot be ruled out. The recovery of this empty cartridge from the scene of the occurrence within hours of the murder at the instance of the appellant can still be considered a tell tale circumstance which coupled with other circumstances connects the appellant with the crime. Dwelling upon the recovery of the said weapons and cartridges appellant's learned counsel drew our attention to the fact that one of the witnesses of the said proceedings, namely, Anjan Kumar Shah was not examined by the prosecution and was examined by the defence as D. W. 1 from his evidence it was asserted that the whole proceedings of appellant's search after arrest, recording of his confessional memorandum and seizure of the empty cartridge and other articles are rendered doubtful. Rajendra Bahadur Singh (P.W. 8) is the other witness of these proceedings. He has fully corroborated the prosecution in this behalf and proved relevant documents Exs. P. ll to P. 14. We have perused his evidence and did not find any infirmity therein. We are, therefore, of view that the adverse evidence of Anjan Kumar Shah will have no consequence as it can be assumed safely that he was won over by the defence. We also find no substance in the submission that the aforesaid proceedings are concocted as the Police Officer should have searched the appellant immediately after arresting him at some distance from the place where the search and seizures were made