AMARDEEP Vs. STATE OF M P

JUDGEMENT

(1.) BY this appeal under Section 374 of the Cr.P.C. filed the accused/appellants have challenged the judgment dated 30.11.2011 passed by VI Additional Sessions Judge (Fast Track) Ujjain, in Sessions Trial No.297/2010 convicting the accused/appellants for and sentencing offence under Sections 307 of the IPC him to seven years rigorous imprisonment with fine of Rs.2,500/ - and in default of payment of fine he was to under go additional sentence of six months. The

(2.) ACCUSED was convicted for offence under Sections 25 -1 (1 -B) (A) Arms Act and he was sentenced to one year rigorous imprisonment with fine of Rs.500/ - and in default of payment of fine he was to under go additional sentence of three months. 2. Brief facts of the prosecution case are that complainant Narendra and Sadanand Pasi recorded the dehatinalishi that they were residing at Jabaran Colony under jurisdiction of police station Neelganga. When he was going by motorcycle at 10:00 am in the morning on 14.10.2010, near the Gadhapuliya towards Dewasgate he was accosted by present appellants Amardeep and Deepak, who were accompanied by 3 & 4 people on motorcycle. Due to previous enmity the complainant was afraid, and speeded up his motorcycle and on reaching near Gujrat Palace the accused came in front of the motorcycle and stopped him and hurled abuses and Goutam, Jeetu and Banti shouted/exhorted that he should be shot; whereupon, accused Amardeep and Deepak took out their pistols (Katta) and fired, as a result of which the complainant Narandra received gun shot injuries in his left leg and right hand as well as stomach. He tried to speed up the motorcycle when Umesh, Banti, Sagar and Yogi caught hold his motorcycle and from behind Dharmendra and Rajju his companions started shouting, and hence the accused fled away on the motorcycle towards Gadhapuliya, whereas the injured complainant went towards railway station. The police at the railway station saw him in bleeding condition and took him to the hospital. In fact the entire enmity was due to the fact that the brother of the complainant named Kamal had been killed by accused Amardeep and others. So also in the same dispute Amardeep's brother Rupesh had also been killed and it was due to this enmity that Amardeep, Banti and Sagar had with the common intention and armed with guns tried to murder the complainant Narendra. The FIR was lodged at the police Station and offence was registered at Crime No.201/2010. The Inspector Ajit Tiwari (P.W.16) recorded the dehatinalishi as Ex -P/8 on the statement of injured complainant Narendra. On the basis of this dehatinalishi the FIR was lodged at Crime No.201/2010 and offence under Sections 307, 147, 148 and 149 of the IPC read with S.25 & 27 of the Arms Act was registered. Reaching the spot on the instruction of Dharmendra P.W.11, the spot map Ex.P/9 was prepared. The bullets which were recovered from the body of the complainant Narendra P.W.8 were received from Patidar Hospital and duly sealed. The sample of blood strains and simple earth was recovered vide Ex.P/23 and statement of other witnesses like Dharmendra P.W.11, Sonabai P.W.09 and Ajju P.W.10 were also recorded. On completion of investigation accused Amardeep, Ramesh, Goutam, Umesh, Yogesh and Sagar were arrested. From the accused Amardeep pistol was recovered as Ex.P/21 and from the house of accused Deepak motorcycle Hero Honda Passion Plus was recovered which indicated that motorcycle actually purchased by accused Amardeep who was its real owner. The recovered weapons were sent to the FSL Sagar and consent was sought from the Magistrate vide Ex.P/13. That from injured Narendra clothes and other articles such as the pistol along with six rounds were sent for FSL, Sagar as Ex -P/31. The accused were duly arrested and committed to their trial.

(3.) COUNSEL for the appellants has vehemently urged the fact that out of nine accused persons, seven accused have already been acquitted by the trial Court itself and the name of the present appellants also does not appear in the Rojnamcha Sana and under the circumstances the appellants were also entitled to the acquittal. Moreover Counsel contended that injured witness complainant Narendra (P.W.8) was a notorious criminal. Moreover he has turned hostile in Court and his testimony is not reliable under the circumstances and Counsel prayed that the conviction be set aside since the Court has relied on the testimony of this witness. Moreover Counsel submitted that the prosecution story was entirely manipulated and the material witnesses have contradicted themselves.