State of M.P. vs Kishore Singh Raghuvanshi and Others

Heard the application for leave to appeal. This is an application u/s 378(3) of the Code of Criminal Procedure, 1973 filed by the Petitioner/state seeking leave to file an appeal against the judgment of acquittal dated 16.7.2008 u/s 302 read with Section 34 of the Indian Penal Code passed by learned II Additional Sessions Judge, Guna in Sessions Trial No. 148 of 2002.

Perused the impugned judgment and record.

The case of prosecution in brief, is that one Sudama Prasad filed a private complaint in the Court of Judicial Magistrate, I Class, Guna on 15.12.1995 to the effect that on 3.2.1995 when Jamna and Balaram were coming with dried wood having valid passes for this purpose, accused Kishoresingh stopped them and declined to accept those passes and started to scuffle with them. When Balaram tried to call Kalyan Singh, the accused Kishoresingh got annoyed and told them that they were treating themselves as big leaders and he would kill them. Kalyan Prasad tried to pacify the matter, at the same time, co-accused Hariom and Mahesh caught Kalyan Singh and in order to kill Kalyan Singh, accused Kishoresingh fired with his twelve bore gun, a bullet of which, hit in the stomach of deceased Kalyan Prasad. The incident was witnessed by Jamna and Balaram. Injured Kalyan Prasad was brought to the Dunai Tiraha. Complainant Sudama along with one Rajendra, Bharat and Ashok reached Dunai Tiraha in a Matador. They tried to stop the accused and snatch the gun from them, on which accused Kishoresingh assaulted Bharat with butt of the gun and had scuffle with him. Thereafter, the complainant along with others went to police station and lodged the report of the incident but the report was not lodged according to their version.

The private complaint was filed by Sudama Prasad. After enquiry, the cognizance was taken. The case was committed to the Court of Sessions, where, learned trial Judge framed the charges against the respondents u/s 302/ 34 of IPC. Statements of nine witnesses were got recorded on behalf of the prosecution. By the impugned judgment, the accused were acquitted.

Heard the arguments and perused the record.

Indisputably, the death of deceased Kalyan Prasad was homicidal in nature according to the Postmortem report Ex. P/7 produced on record which has been proved by Dr. Prakash Chand Jain who has opined that the cause of death of Kalyan Prasad was found by failure of heart due to respiratory failure because of the gun shot received in stomach. Before death, the deceased was treated in the District Hospital Guna. The injury report and papers of treatment Ex. P/1 to Ex. P/6 have been produced on record which have been proved by Dr. Y.S. Agrawal (PW 1) and Dr. P.K. Sharma (PW 6).

Considering the statements of Sudama Prasad (PW 2), Balaram (PW 3), Jamnalal Dhobi (PW 4) and Bharat Bhargava (PW 5), the leave is granted. Office is directed to register the accompanying memo of appeal as criminal appeal and list it for admission. It is pertinent to mention here that complainant Sudama Prasad (PW 2) has also filed a Criminal Appeal No. 154 of 2009 against the impugned judgment along with the application for leave to appeal being M.Cr.C. No. 5152 of 2008, wherein, vide order dated 4.2.2009, leave to appeal has already been granted by this Court and criminal appeal has also been admitted for final hearing.