Samaala Prasad @ Samaliya and two others vs State of M.P.

In the instant appeal a challenge has been made to the order of conviction and sentence passed by the learned III Additional Sessions Judge (Fast Track Court), Shahdol District Shahdol in S.T. No.172/2007 [State of M.P. vs. Samala Prasad @ Samaliya and others] on 07-07-2007 whereby the accusedappellants have been convicted and sentenced as under:

Conviction Sentence

Appellants No.1 and 2: Under Section 302 of the IPC. Imprisonment for life to each and fine of Rs.200/-, in default, to suffer further simple imprisonment for two months to each.

Appellant No.3 : Under Section 302/34 of the IPC. Imprisonment for life and fine of Rs.200/-, in default, to suffer further simple imprisonment for two months.

The prosecution case, briefly stated, is that the deceased, Santosh Chandravanshi lived in Village, Jarahi and was running a shop of eggs in Rajendragram. On the date of the incident, i.e. on 02-3-2006 at about 03:00 PM when the deceased along with his younger brother, Jitendra was going to Rajendragram from their Village, Jarhi on a motorcycle and when they reached near ''Mar Nala'' in the Village, Soniya it is alleged that the accused persons came out of ''Gaddha'' and abused the deceased and asked him to stop. Thereafter, as alleged, the appellant No.1 - Samaala alias Samaliya fired by a pistol on the chest of the deceased and the deceased got down from the motorcycle and told Jitendra to run away and then the deceased fell down. It is alleged that Jitendra had informed the incident to Munna Prasad and other other family members that his brother - Santosh has been killed by the accused persons.

An FIR to that effect was lodged by Jitendra on the same day at about 04:30 PM. The incident had taken place at about 03:00 PM in the afternoon. In the FIR he stated about the incident that when he was going on motorcycle which was being driven by Santosh and the first informant was a pillion, and when they reached near ''Mar Nala'' in the Village, Soniya the accused persons : Samaala, Mithailal and Munna @ Balram Mahara came out from the ''Gaddha'', Samaala was carrying a pistol, the accused Mithailal was armed with a ''farsa''/baka and was also having a stone in the other hand; and the accused- Munna alias Balram was armed with a ''Gupti'' and also carrying stones in the other hand. The accusedappellant No.1, Samaala had abused and asked the deceased and first-informant to stop the vehicle. He made specific allegation that fire was made by Samaala on the chest of the deceased and thereafter his brother also came down from the vehicle. His brother asked him to run away from the spot. It is alleged that accused - Mithailal had also caused injury on the neck with the help of a ''farsa''. As alleged, the accused - Munna alias Balram chased Jitendra. He was called back by Samaala and thereafter all the accused persons had gone towards the forest. Intimation was given to the other family members of the deceased. Marg intimation was registered vide Ex.P/30 and thereafter the FIR was registered against the accused-appellant.

Head Constable S.S. Yadav, immediately reached at the spot prepared crime seen and also executed dead-body panchnama, Ex.P/25. The dead-body was sent for autopsy to the Government Hospital, Rajendragram. It is alleged that the accused persons were arrested and thereafter on their discovery statements, weapons viz. ''katta'', ''farsa'' and ''gupti'' were seized and the seized articles were sent for chemical examination.

After investigation, the police filed charged-sheet before the competent court of jurisdiction which, in turn, committed the matter to the Court of Sessions.

The accused persons abjured their guilt and submitted that they have been falsely implicated.

It was stated at the Bar that the appellant No.1, Samaala alias Samaliya has died during the pendency of the appeal. This Court got it verified and it has come on record that the said appellant has already died. Hence, the present appeal stands abated, so far as the appellant No.1, Samaala alias Samaliya is concerned. The appeal survives only on behalf of the appellant No.2, Mithailal and appellant No.3, Munna alias Balram.

The prosecution case is based on the testimony of eye witness, Jitendra Kumar (PW-19). Other prosecution witnesses, namely, Bhuman Singh (PW-1), Karan Singh (PW-2) and Vinod Kumar (PW-3) do not support the prosecution story. Counsel for the appellants submitted that the accused persons have been falsely implicated, as admittedly there was previous enmity in the two families of complainant with the accused-appellant No.Samaala alias Samaliya (since deceased).

Jitendera Kumar (PW-19) has supported the case of the prosecution and his testimony is consistent with the report lodged by him. In paras 1 and 2 of his deposition before the Court he has made categorically statement regarding firearm used by the appellant on the chest of the deceased and thereafter injury was caused by the accused-appellant No.2, Mithailal with the help of a ''farsa''. He also stated that the he was chased by the appellant No.3, Munna alias Balram Mahra, who was also armed with a ''gupti''.

The testimony of Jitendra Kumar (PW-19) gets corroborated with the testimony of Dr. T.R. Chourasiya, who has been examined as Ex.P/23. He has found injury on the head of the deceased - 7 x 1 cm on the right side and the injury No.2 - 9 x 1/2 cm on the right side of the head. Other wounds were found of size 10 x 4 cm and 3 x 3 cm over the neck and shoulder of the deceased respectively. There was also injury on the chest of the deceased. He has opined that other injuries were caused by hard and sharp edged objects and the injury No.5 was a firearm injury.

In the present case, the incident had taken place at about 3:00 PM in the afternoon and the report was lodged at 04:30 PM on the same date which was within a duration of 2 hours of the incident and the same cannot be construed to be a delay, as the distance of the Police Station is hardly at a distance of 8 Kms. from the place of the occurrence. Thus, the testimony of the eye witness, PW-19, though he is a related witness to the deceased, but is consistent and coherent and, therefore, it inspires confidence of this Court corroborated with medical and scientific reports.

As argued by the counsel for the appellants regarding enmity with the accused - Saamala alias Samalia is concerned, the same is a double edged weapon. This may also be a cause for causing death of the deceased. In addition to that, the prosecution has proved the seizure of the weapons and disclosure statement of the accused persons. The bullet was marked as Article ''E'' and as per ballistic report, the same was found to be fired from the seized pistol. In the FSL report it has been found that the weapon which was used, i.e., Baka which is marked as Article ''H'', discovery statement of the accused - Mithailal has been found to have blood stains. Though, whether the blood was a human blood and the blood group could not be confirmed, because of disintegration.

So far as the appellant No.3, Munna alias Balram Mahra is concerned, except his presence at the spot, no any active role has been attributed to him. Further, in the weapon alleged to have seized from him, no human blood was found. After considering the testimony of Jitendra Kumar (PW-19) and other material evidence brought on record, we are of the considered view that the prosecution has failed to prove its case beyond reasonable doubt against the accused-appellant No.3, Munna alias Balram Mahra. Since no any specific role has been attributed to him, therefore, any object to murder the deceased - Santosh could not be established. Accordingly, we are of the considered view that the appellant No.3 - Munna @ Balram is entitled for benefit of doubt.

On assimilation of entire facts and evidence, the appeal is dismissed so far as the appellant No.2, Mithailal is concerned. Appeal on behalf of the accused-Appellant No.3, Munna alias Balram Mahra is allowed and impugned judgment of conviction and sentence is set aside, so far as this appellant is concerned. Let he be set at liberty forthwith, if not requires in other case.

Ex consequenti, the appeal is allowed in part.