Narendra Verma vs State Of Mp And Another

Heard.

Applicant/complainant has preferred this petition under Section 378(3) of CrPC for grant of leave to appeal against the judgment dated 19.2.2018

passed by Additional Judge to the Court of First Additional Sessions Judge, Shivpuri in Sessions Trial No.216/2011, whereby the respondent

No.2/accused has been acquitted of the offence punishable under Section 307 of IPC.

Brief facts of the case are that on 14.1.2011 at about 4.45 am Kusumbai, wife of the applicant went to the terrace for urine. After hearing the

voice of Kusumbai, Narendra and his son Arvind went to the terrace where they found that respondent No.2-Vivek, his brother Vinod, Sanjay and

father Laxminarayan armed with firearms caught hold of Kusum and they were pressing her neck. After seeing them, accused persons fired on them

due to which Narendra sustained injuries on his stomach. After listening the sound of fire, Mahesh and other neighbours came to the house of

Narendra and found Kusumbai dead. Narendra informed them regarding the incident. The matter was reported to Police Station Shivpuri and police

registered the offence under Sections 302 and 307 of the IPC, Sections 25 and 27 of the Arms Act. Injured Narendra was sent for medical

examination and treatment. The dead body of deceased was also sent for post-mortem. The statements of the witnesses were recorded. According to

the post-mortem report, no injury was found on the body of the deceased Kusumbai and, therefore, in the opinion of the doctor, her death cannot be

said to be homicidal in nature. During investigation, police also reached to this conclusion that other named accused Laxminarayan, Vinod and Sanjay

were not involved in the crime and they were implicated in the matter due to previous enmity, therefore, the police did not file charge sheet against

them. After investigation, police filed charge sheet against respondent No.2-Vivek only for the offence punishable under Section 307 of IPC.

Learned trial Court after due appreciation of the evidence on record acquitted the respondent No.2/accused from the aforesaid charge. Being

aggrieved, the applicant/complainant has preferred this petition for grant of leave to appeal against the impugned judgment of acquittal.

We have heard learned counsel for the applicant and perused the record.

Before proceeding with analysis of various contentions raised by learned counsel for the applicant and expressing the opinion on appreciating the

facts and evidence on record, we wish to mention that it is the cardinal principle of criminal jurisprudence that guilt of the accused must be proved

beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies with the prosecution and it never shifts. Another golden

thread which runs through the web of administration of justice in criminal caseis that, if two views are possible on the evidence adduced in the case,

one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted as held in catena

of cases by the Hon'ble Apex Court. By keeping in mind the aforesaid principles of law, now we shall examine the arguments advanced by the

learned counsel for the applicant.

Learned counsel for the applicant submitted that in the FIR (Ex.P/9), it is specifically mentioned that Laxminarayan, Vinod and Sanju were also

present on the place of occurrence and all of them were pressing the neck of deceased Kusumbai and by doing so they killed Kusumbai. In spite of

that, the police absolved the accused persons from the charge of Section 302 of IPC. He further submitted that during the trial also the trial Court has

not taken cognizance against the respondent No.2 and other accused persons regarding commission of murder of Kusumbai although ample material

was available on record to establish their guilt. On a query made by us, learned counsel for the applicant fairly admits that during the course of trial

neither the complainant had moved any application under Section 319 of CrPC for taking cognizance of Section 302 of IPC against the respondent

No.2 nor he has challenged nonprosecution of Vinod, Sanjay and Laxminarayan by filing petition under Section 482 of CrPC before this Court with

regard to murder of Kusumbai. Under these circumstances, the aforesaid contention of the applicant at this stage cannot be accepted.

It is also worth to note that the post-mortem was conducted of the dead body of Kusumbai, in which no injuries were found on her neck or other

parts of her body, therefore, there was no medical opinion available on record to show that the cause of death of Kusumbai was throttling. Hence, the

police exonerated the respondent No.2 and other co-accused persons from the offence under Section 302 of IPC.

Narendra Verma (PW-1) deposed that respondent No.2-Vivek fired on him by Katta (firearm), due to which he sustained injuries on right side of

his stomach but after appreciating the evidence on record the trial Court was of the view that in the FIR as well as in the statement of Narendra

recorded under Section 161 of CrPC, it is not specifically mentioned that accused Vivek had fired on Narendra. In the above documents, it was

alleged that Vivek, Vinod, Sanjay and Laxminarayan were armed with gun and after seeing Narendra and Arvind they fired on Narendra but it is not

specifically mentioned that who had fired on him. No firearm has been recovered from the respondent No.2. Although during investigation police has

recovered one empty cartridge and bloodstained clothes of injured Narendra, however, these articles were also not produced before the trial Court.

Therefore, the recovery of these articles was also not found proved beyond reasonable doubt. The trial Court has also observed that as per admission

of Narendra, a man can go to the terrace only by staircase and when there is no other way to reach on the terrace then it is not clarified as to how the

respondent/accused reached on the terrace. There are material inconsistencies and omissions in the statements of the witnesses and, therefore, in

view of the trial Court, the prosecution evidence is not found credible and trustworthy and prosecution has failed to establish the charge under Section

307 of IPC against the respondent No.2.

From the perusal of entire evidence available on record, it appears that there is no material available on record on which the aforesaid charge can

be found proved against the respondent No.2 that he had fired on Narendra with intent to kill him and due to which he had sustained injuries in his

stomach.

In view whereof, in our considered opinion, the finding of acquittal recorded by the trial Court in favour of the respondent No.2 is based on proper

appreciation of evidence and does not appear to be perverse.