BALAIYA @ BARELAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Challenge in this appeal filed under Section 374 of the CrPC by the appellants is to the judgment dated 28.6.1999 passed by Sessions Judge Morena, in Sessions Trial No. 266/1994, whereby appellant No.1-Balaiya @ Barelal is convicted and sentenced under Section 302 of the IPC, to undergo life imprisonment, under Section 25 (a) of the Arms Act , to undergo three years rigorous imprisonment with a fine of Rs.500/- with default stipulation; and under section 27 of the Arms Act, to undergo three years rigorous imprisonment with fine of Rs.500/- with default stipulation, and appellant No.2-Sarnam is convicted and sentenced under Section 302 / 109 of the IPC, to undergo life imprisonment. The jail sentences of appellant No.1-Balaiya @ Barelal is directed to run concurrently.

(2.) Undisputedly, deceased Khunna received a firearm injury.

(3.) The prosecution's case in brief is that on 19 th June, 1994 deceased Khunna with his son Ramveer (PW-2) and brother Bhagwant (PW-3) had gone to Chhotelal Sakhwar's house situated at village Chandrahans Ka Pura, for attending the invitation. After having meals when Khunna was returning to his house with his companions, near the abovementioned village, both appellants, hidden behind a Neem tree and as Khunna and his companions reached near the Neem tree, appellant Sarnam uttered that 'Khunna be killed'. Thereafter, Balaiya @ Barelal fired a shot from his countrymade pistol, whose projectile caused injury on left side of abdomen of Khunna and blood was oozing out. After firing shot, both the appellants fled away. On occurred injury a cloth (towel) was tied up by Khunna's brother and son. Thereafter, Khunna's son Ramveer after running reached village Midhela and from that village, he caused a telephonic call to Police Station Ambah and returned to the scene of occurrence. Within a span of time, the police force reached on the spot. Town Inspector Mahipal Singh Yadav (PW-10) scribed Dehati Nalishi (Ex.P/12) on the information given by Khunna. Later on, Dehati Nalishi (Ex.P/12) was sent through Constable Suresh Chandra Sharma (PW-1) to the Police Station Ambah for recording of the crime vide FIR. The SDO (P) Anil Kumar Saxena (PW-8) also reached on the spot. After seeing the critical condition of Khunna, A.K. Saxena (PW-8) recorded dying declaration (Ex.P/5) of Khunna. Thereafter injured Khunna was sent to hospital, but on way he succumbed to the injuries. Marg intimation bearing Marg No.17/1994 was lodged by Suresh Chandra Sharma (PW-1) at the police station at 20=40 hrs. After issuing safina form, Inquest Memo (Ex.P/7) was prepared in presence of panch witnesses and the dead body was sent for post-mortem. Dr. R.K.Arora (PW-4) conducted the autopsy of deceased Khunna on 20.6.1994 and recorded post-mortem report (Ex.P/9). The clothes found on the dead body were seized by Autopsy Surgeon and were sent to the police station. From the spot, in the night of 19.6.1994 in presence of the witnesses, an empty cartridge of 12 bore and a part of bullet were seized by the Investigator Mahipal Singh Yadav (PW-10) vide seizure memo (Ex.P/3) and at the same time, from the scene of occurrence, bloodstained soil and separate simple soil were seized vide seizure memo (Ex.P/4). A spot map (Ex.P/8) was prepared in next morning. Appellant Balaiya @ Barelal was arrested on 24th June, 1994 vide arrest memo (Ex.P/13). On his disclosure, memorandum (Ex. P/15) was recorded under Section 27 of the Evidence Act on 24.6.1994 and on production of a 12 bore countrymade pistol from appellant Balaiya @ Barelal's house situated in village Barwai, the same was seized vide seizure memo (Ex.P/16). Appellant Sarnam was arrested on 28 th June, 1994 vide arrest memo (Ex.P/14). Seized bloodstained soil, clothes of the deceased and firearm were sent for examination to FSL, Sagar. Permission of the District Magistrate, Morena was obtained for prosecution of the appellant Balaiya @ Barelal in relating offences of the Arms Act . From FSL Sagar the bloodstained soil and clothes of the deceased were sent for examination to Seriologist and Chemical Examiner of Government of India, Kolkatta.