SHYAM @ SHYAMBABU Vs. STATE OF M.P.

JUDGEMENT

(1.) THE appellant has preferred this appeal under section 374 (2) of Cr. P.C. feeling aggrieved by the impugned judgment of conviction and sentence dated 26th July, 1994 passed by Fourth AS J, Morena in ST No. 91 of 1993 wherein, the appellant accused has been found guilty under Section 302 of IPC and sentenced to the imprisonment for life. Admitted facts of the case are that deceased Prayag Narayan was the father of the present appellant who died due to gun shot injury. Briefly stated, the facts of the case are that deceased Parayag Narayan is the father of the appellant. Mother of the present appellant died before 20 years and thereafter, deceased Prayag Narayan used to live with another lady namely Sheela Bai and developed marital relations with aforesaid Sheela Bai. Thereafter, some dispute arose between present appellant with deceased Prayag Narayan with regard to partition of the property belonging to Prayag Narayan the house and other articles. On the fateful day of the incident i.e. On 20.12.1992, some quarrel again took place between appellant and deceased Prayag Narayan at the time, appellant -accused had fired by a mouser gun on the deceased Prayag Narayan by which, Prayag Narayan sustained gun shot injury on his left buttock. He was immediately taken up to the hospital and one Pooran had lodged FIR at Kotwali, Morena at 9.40 AM on which basis, police registered a case U/s 307 of IPC and the Sub Inspector S.C. Sharma reached to the hospital and gave a memo to the doctor concerned for recording of the dying declaration of the injured Prayag Narayan Concerning treating doctor Shri VN. Chaubey (PW13) at 9.30 AM examined injured Prayag Narayan and found a gun shot injury on the left buttock due to which, Criminal his intensive came out from the abdomen and blood was oozing from the injury. Immediately, necessary treatment was given and the concerning doctor Shri VN. Chaubey (PW13) had also recorded dying declaration of injured Prayag Narayan which is Ex.P/19, wherein, the deceased Prayag Narayan specifically stated that it is the appellant -accused Shyamu alias Shyambabu who caused aforesaid injury to him by means of a gun. During treatment, injured Prayag Narayan died for which, necessary information was sent to the police station and the police converted the case U/s 302 of IPC, prepared inquest panchnama and also issued memo for the postmortem examination. Dr. VN. Chaubey (PW13) also performed Postmortem and opined that deceased died due to the gun shot injury which resulted into hemorrhage and syncope and due to shock deceased Prayag Narayan died. During investigation, police officer prepared the spot map, recorded statements of witnesses, arrested appellant -accused, seized a mouser gun from his possession and after due investigation, charge sheet had been filed. The appellant -accused abjured the guilt and his defence is of false implication in this case.

(2.) LEARNED trial court after due appreciation of entire prosecution evidence on record by the impugned judgment dated 26.7.1994, held the appellant -accused guilty for the offence punishable under section 302 of IPC and sentenced him as stated herein above. Feeling aggrieved by this, the appellant has preferred this appeal. Having heard learned counsel for the appellants as well as learned Panel Lawyer for the State. It is submitted by learned counsel for the appellant that the material eye witnesses namely Kok Singh (PW2), Ramnath (PW3), Pooran (PW4) and Shashi Sharma (PW6) had not supported prosecution story that it is appellant -accused who caused gun shot injury to deceased and therefore, all these witnesses had been declared hostile by the prosecution. Learned trial court only held appellant -accused guilty U/s 302 of IPC on the basis of the dying declaration Ex.P/19 alleged to be recorded by the medical witness Dr. VN. Chaubey (PW13) and in that statement also, deceased Prayag Narayan had also not clarified as to who is the person caused the aforesaid injury. Sheela Bai alleged kept of the deceased Prayag Narayan, was also having a son whose name is also Shyamu, therefore, the prosecution has not clarified as to whether, the present appellant had caused aforesaid injury or the another son of Sheela Bai had caused aforesaid injury and in view of that, learned trial court has wrongly believed the dying declaration of deceased Prayag Narayag and wrongly held appellant -accused guilty for the offence concerned. Hence, prayed for setting aside of the impugned judgment of conviction and sentence passed by the trial Court and also prayed for the acquittal of the appellant -accused. In reply, learned Panel Lawyer for the state supported the impugned judgment and submitted that doctor VN. Chaubey (PW13) has clearly proved the dying declaration of deceased Prayag Narayan which is Ex.P/19, wherein, the deceased Prayag Narayan had specifically stated that it is appellant -accused who had the dispute about partition of the property and due to this quarrel, the appellant -accused had caused injury to him by means of a gun and the learned trial court has rightly believed the aforesaid dying declaration Ex. P/19 and if the dying declaration is believable in that case, no further corroboration is required for the conclusion of the conviction of the appellant and thus, no grounds are available for any interference in the impugned judgment of conviction and sentence passed by the trial Court. Hence, prayed for dismissal of the appeal.

(3.) TO bring home the charge as leveled against the appellant, it is no where in dispute that deceased Prayag Narayan is the father of present appellant who died due to gun shot injury and his death is also proved by medical witness Dr. V.N. Chaubey (PW13) who on postmortem examination opined that deceased Prayag Narayan died due to gun shot injury which resulted into severe hoemorrhage, syncope and shock which is ultimate cause of his death. Duration of the death is within 24 hours from the postmortem examination and he also proved Postmortem report Ex. P/18. This report has also not been controverted to by the defence. Similarly, the death of deceased Prayag Narayan has also been proved by Ramesh Chand Sharma (PW1), Kok Singh (PW2), Ramnath (PW3), Pooran (PW4), Girraj Sharma (PW5) and Shashi Sharma (PW6). They specifically stated that in this incident, Prayag Narayan died due to gun shot injury and this statement of aforesaid witnesses has also not been confronted to by the defence with regard to the death of deceased Prayag Narayan in this incident. Now, the main question arises as to whether, it is appellant -accused who had caused a foresaid fire arm injury to deceased Prayag Narayan. Admittedly, the alleged eye witnesses Pooran (PW4) who had also lodged FIR Ex. P/9 has not supported the prosecution story and had not stated before the trial court that it is appellant accused who had accused aforesaid fire arm injury to deceased Prayag Narayan. This witness has been declared hostile by the prosecution. Similarly, Shashi Sharma (PW6) wife of the present appellant naturally had also, not supported the prosecution story against appellant/her husband and she had also been declared hostile by the prosecution. Now, the prosecution, rests upon the dying declaration Ex. P/19 recorded by the medical witness Dr. V.N.Chaubey (PW13) in the question answer form and Dr. V.N. Chaubey (PW13) had categorically stated that at the time recording of the statement Ex.P/19, injured Prayag Narayan was in a position to give statement and he specifically sated that it is his son Shyamu who had caused aforesaid fire arm injury on his left buttock. On perusal of Ex. P/19 it is also clear that before recording of the aforesaid statement, doctor has specifically stated that injured Prayag Narayan is in a lit condition to give statement and this statement has been recorded within 10 minutes and during the course of recording of statement, injured Prayag Narayan was in a fit condition during recording of the statement also. The learned trial Court has elaborately discussed that the concerning Dr. VN. Chaubey has no ulterior motive to record false statement of deceased Prayag Narayan as per Ex. P/19. He has no grudge against accused. He is government doctor posted at Morena and has specifically stated in the report Ex. P/19 and thus, the trial court has believed the statement of Dr. Chaubey that deceased has given aforesaid statement wherein he specifically stated about the fact that the appellant -accused has caused aforesaid gun shot injury to him.