UBED Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This criminal appeal has been filed under Section 374 of the Cr.P.C. against the judgment dated 17.01.2007 passed by Sessions Judge, Bhopal in Sessions Trial No.5/2006, whereby the learned Judge found appellant guilty for the offences punishable under Sections 302 & 452 of IPC and sentenced him to life imprisonment with fine of Rs.5,000/- and three years rigorous imprisonment with fine of Rs.5,000/- with default stipulation respectively.

(2.) Brief facts of the prosecution case are that on 08.09.2005 at 02:30 PM, when deceased Tabussum was at her neighbour Nasiruddin's house with his wife Shahida (P.W.7) in house No.16 situated at Street No.2, Bagh Farhat Afzab, the appellant came there armed with country made pistol (katta) and fired on her, due to which, she sustained gunshot injury in her chest and Jarina (P.W.1), Shanu (P.W.3) & Nasiruddin (P.W.6) have also saw the incident. Nasiruddin (P.W.6) took Tabussum with the aid of neighbours to P.S. Aishbagh, where he lodged the report (Ex.P-7). On that report, police registered Crime No.432/2005 against the appellant for the offences punishable under Sections 307 & 452 of IPC and Sections 25 & 27 of Arms Act. P.N. Tiwari (P.W.8), the then ASI of P.S. Aishbagh, investigated the matter. During investigation, he sent Tabussum for medical examination to Hamidia Hospital. In the hospital, duty doctor S.K. Ahirwar (P.W.5) examined Tabussum and gave MLC report (Ex.P-6) and admitted her in the hospital for further treatment. Thereafter, P.N. Tiwari (P.W.8) went to the spot and prepared the spot map (Ex.P-8) and also collected the blood stained soil and simple soil from the spot and prepared seizure memo (Ex.P-9) and recorded case diary statements of Smt. Jarina (P.W.7), Nasiruddin (P.W.6 ) & Smt. Sahida (P.W.1). Rishi Maurya (P.W.4) recorded the dying declaration of Tabussum (Ex.P/5). Tabussum died during treatment on 09/09/05. On that, P.N. Tiwari (P.W.8) went to Hamidia Hospital on 09.09.2009 and prepared inquest memo of dead body of Tabussum (Ex.P-12) before panch witnesses and sent her dead body to postmortem. Dr. Jayanti Yadav (P.W.2) conducted the postmortem of dead body of Tabussum and gave post mortem report (Ex.P-2) to the effect that Tabussum died due to gunshot injury. The investigation of the crime was also conducted by N.S. Damley (P.W.10), the then S.H.O. P.S. Aishbagh, who recorded the statement of injured Tabussum on 08.09.2005 and on 09.09.2005 arrested the appellant and prepared arrest memo (Ex.P-2). On interrogation, appellant gave the information regarding seizure of country made pistol. On that information, he seized one country made pistol from the dickey of appellant's scooter bearing registration No.MP04-D-2126 in the barrel of that pistol one empty cartridge was also present and he prepared information memo (Ex.P-14) and seizure memo (Ex.P-15). He also recorded the case diary statements of Ayub (Ex.P-16), Smt. Noorjaha (Ex.P-17) and Tabussum (Ex.P-18). He also got the seized country made pistol examined. Sarabjeet Singh Examined that pistol and gave the report (Ex.P/12) that seized pistol was in serviceable condition. He also sent all seized articles for examination to F.S.L. Sagar. After completion of investigation, police filed charge-sheet against appellant/accused before the Judicial Magistrate First Class, Bhopal, who committed the case to the Court of Sessions. On that charge-sheet, S.T.No.5/2006 was registered. Learned Sessions Judge framed charge against the appellant for the offences punishable under Sections 302 & 452 of IPC and Sections 25 & 27 of Arms Act and tried the case. The appellant/accused abjured his guilt and took the defence that he had falsely been implicated in the case. The prosecution produced as many as 10 witnesses to prove its case, however, after trial learned Sessions Judge acquitted the appellant from the charge under Sections 25 & 27 of Arms Act but found him guilty for the offences punishable under Section 302 & 452 of IPC and sentenced him as aforesaid. Being aggrieved from that judgment, appellant filed this Criminal Appeal.

(3.) Learned counsel for the appellant submitted that learned trial court without properly appreciating the prosecution evidence wrongly found the appellant guilty for the offences. From the statements of so-called eye witnesses Jarina (P.W.1), Shanu (P.W.3), Nasiruddin (P.W.6) & Sahida (P.W.7) it clearly appeared that they did not see the appellant firing on deceased Tabussum. Although police also produced dying declaration of Tabussum (Ex.P/5). But that dying declaration is also doubtful as prosecution did not produce the doctor who certified that Tabussum was fit to give statement at the time of giving that dying declaration. On the contrary P.N. Tiwari (P.W.4) clearly deposed in his statement that when Tabussum was brought to Police Station Aishbagh, she was not even in the condition to speak. Even Tabussum in her dying declaration had deposed that she was not feeling well which shows that she was not fit to give dying declaration when she gave it . Even in the dying declaration Tabussum did not state the name of the assailant. In the dying declaration it is mentioned that her husband had fired on her but appellant was not Tabussum's husband at the time of incident because he had already given divorce to Tabussum before the incident as clearly proved from the statement of Mohammad Athar (DW-1). Likewise persecution also failed to prove the seizure of socalled country made pistol (Katta) from the dickey of scooter and that the appellant was the owner of that scooter. There is no evidence on record that so called country made pistol was used in committing the offence.