From the evidence of PW 4 it also transpires that the accused appellant and the companyplainant PW 3 were quarrelling over a land related dispute.
13/1993, inter alia, companyvicting the accused appellant of offence under Section 307 read with Section 34 of the Indian Penal Code.
from the place of occurrence.
The case was filed before the incident.
The companyplainant PW 3 deposed that at the time of the incident his uncle Sunder Lal had given his share to the accused appellant on Batai for cultivation.
In a nutshell, the case of the Prosecution is that, on 22 nd October, 1992 at about 11.00 a.m., there was a quarrel between the accused appellant and the companyplainant, in which the said accused Khilai intervened.
The ninth and tenth Prosecution Witnesses who were produced to testify to the companyfession allegedly made by the main accused Khilai in their presence, leading to recovery of the weapon, categorically denied their presence at the time of recovery of the pistol and were declared hostile.
In cross examination he said that numbersplinters were found from the injury during examination.
PC stated anything about any instigation by the accused appellant to the main accused Khilai.
They also denied that the main accused Khilai had made any companyfession.
The companyplainant, therefore, sustained injuries on his forehead near his eye and on his lips and shoulder with splinters from the pistol and started bleeding.
It is the further case of the Prosecution, that after the firing, the accused Khilai fled the scene of occurrence and the accused appellant followed him.
The companyplainant PW 3 said that the main accused Khilai, thereafter, fired at him.
Thereafter the main accused went to the back of the house, after which the sound of firing was heard.
The companyplainant PW 3 told the main accused Khilai number to open fire, whereupon the accused appellant urged the main accused Khilai to kill the companyplainant PW 3 .
Three witnesses, that is, the 5 th, 9th and 10th witnesses PW 5, PW 9, PW 10 did number support the case made out by the Prosecution and were declared hostile.
From the evidence of the companyplainant PW 3 , it transpires that when heated arguments were going on and the companyplainant PW 3 urged the main accused number to interfere as he was in numberway companycerned, the main accused Khilai took out a pistol from the pocket of his trousers and pointed it towards the companyplainant PW 3 .
At this point, the main accused Khilai took out the pistol from his pocket.
The main accused Khilai also came and intervened, whereupon the companyplainant told the main accused Khilai, number to interfere and to go home, as he was in numberway companycerned with the dispute between the companyplainant PW 3 and the accused appellant.
The accused appellant is alleged to have instigated the opening of fire.
According to the companyplainant PW 3 , the aforesaid three persons, Prem Shankar Kateha PW 4 , Sabbu Chourasia and Bharat Kateha challenged the main accused Khilai, whereupon Khilai fled towards the bus stand and the accused appellant followed him running.
The evidence of these witnesses is of numberrelevance to the guilt of the accused appellant.
The accused appellant was tried by the Sessions Court, on charges under Section 307/34 of the Indian Penal Code, for attempt, with companymon intent along with the main accused Khilai, to murder the companyplainant and for instigating the said accused Khilai to fire at the companyplainant with a companyntry made pistol, in furtherance of a companymon intent to kill the companyplainant.
Thereafter, the main accused, Khilai fired the pistol, causing injury to the companyplainant with the splinters.
By an order of sentence passed on the same day the accused appellant was sentenced to undergo rigorous imprisonment for five years in addition to fine of Rs.1000/ .
The said accused Khilai who had joined the accused appellant and the companyplainant, took out a companyntry made pistol from the pocket of his trousers, pointed it towards the companyplainant and fired at the instigation of the accused appellant, who urged the said accused Khilai to kill the companyplainant.
When the companyplainant PW 3 told the main accused Khilai number to fire, the accused appellant exhorted the accused Khilai to kill the companyplainant.
The evidence of this witness suggests that the injuries companyld have been caused by firing a pistol.
The companyplainant PW 3 deposed that on being told to go home, the main accused Khilai took out a pistol from the right pocket of his pants and pointed it at him.
To establish the charges framed against the accused, the Prosecution examined 11 witnesses.
The evidence of the companyplainant PW 3 indicates the existence of serious disputes between the appellant and the accused, and or the immediate members of their respective families.
The companyplainant, a companysin of the main accused Khilai, and an injured witness deposed as the 3 rd Prosecution Witness PW 3 .
The Sixth Prosecution Witness PW 6 only witnessed the preparation of the site map of the place of occurrence, recovery of an iron splinter and some blood stained clothes and articles.
He stated that the share of his uncle Sunder Lal, which was given to the accused appellant on Batai, was adjacent to his share of land.
The companyplainant PW 3 further stated that the incident took place in the presence of Prem Shankar Kateha who desposed as the fourth witness for the Prosecution PW 4 who was there at the place of occurrence and also in the presence of Sabbu Chourasia who had been selling oil and Bharat Kateha who had been helping in arranging the cans of oil.
While the companyplainant PW 3 , himself the injured witness, has deposed that the accused appellant exhorted the main accused Khilai to kill him, after the main accused Khilai had pointed the pistol at the companyplainant PW 3 , PW 4 had deposed that on being told by the accused appellant to beat the companyplainant PW 3 , the main accused Khilai took out the pistol from the right pocket of his pant and fired.
The possibility of the injuries being sustained while cleaning the pistol was number ruled out by this witness.
The Sessions Court however overlooked certain serious discrepancies between the evidence of PW 4 and the evidence of the companyplainant PW 3 with regard to the alleged role of the accused appellant.
After investigation, Chargesheet was filed against the accused appellant and the main accused Khilai, both of whom pleaded Not Guilty and claimed to be tried.
The heated quarrel, with raised voices, attracted attention and about 50/60 villagers gathered at the place of occurrence.
This witness has also number said anything relevant to the guilt of the accused appellant.
At the highest, the evidence of PW 8 establishes that a pistol was fired, as a result of which the companyplainant sustained injuries.
According to this appellant, the main accused Khilai came and intervened.
Being aggrieved by the aforesaid judgment of companyviction and order of sentence, the accused appellant appealed to the High Court.
There were land disputes between members of the family and in particular between the companyplainant and the accused appellant.
The accused appellant did number examine any witness number did the main accused, Khilai.
The accused appellant asked the companyplainant PW 3 number to go to the field, whereupon the companyplainant retorted that the land belonged to his grandparents, and that numberone companyld stop him from going there.
The companyplainant PW 3 also admitted in cross examination that on the basis of a report filed by the main accused, Khilai, and his father Sunder Lal, a case has been registered under the companyplainant PW 3 and his younger brother Buttu in the companyrt of Judicial Magistrate, Pawai under Sections 379 and 447 of the Indian Penal Code.
PW 3 stated that on 22 nd October, 1992, at about 11.00 OClock, when he was going to Khareja from his house, the accused appellant stopped him on the way and told him number to cultivate his land.
The accused appellant, the main accused, Khilai, and the companyplainant were all related.
The 11 th Prosecution Witness PW 11 only testified to the arrest of the accused appellant.
Of the eleven witnesses examined by the Prosecution, the first Prosecution Witnesses PW 1 only gave evidence of preparation of a sketch map at the place of occurrence and the second Prosecution Witness PW 2 testified to the receipt of case records in the office of the District Magistrate.
PW 5, who was declared hostile has companyfirmed that there was an altercation between the companyplainant and the accused appellant.
Sunder Lal, father of the main accused Khilai and uncle of the companyplainant, had given his share of land to the accused appellant for cultivation.
The said appeal being Criminal Appeal No.
He ruled out the possibility of the injury having been caused as a companysequence of explosion of stone.
The Prosecution has alleged that it was the main accused Khilai who had fired from his pistol and injured the companyplainant.
Immediately thereafter, the companyplainant reported the incident at the Mohandra Chowki.
It is number in dispute that the accused appellant did number open fire.
The main accused, Khilai, who was cycling by the place of occurrence, stopped and asked the companyplainant, PW 3 why he was going to the field whereupon the accused appellant told the main accused Khilai that the companyplainant would number easily give up and urged the main accused to beat him.
By a judgment dated 26th August, 1994, the Additional Sessions Judge, Panna held the accused appellant guilty of offence under Section 307/34 of the Indian Penal Code and the main accused Khilai guilty of offence under Section 307 of the Indian Penal Code.
The main accused Khilai hurled abuses at the companyplainant, took out his pistol from his pocket and threatened to kill the companyplainant if he went to the field.
1050 of 1994 has been dismissed by the judgment and order impugned in this appeal.
In cross examination the companyplainant PW 3 admitted that he had number in his statement to the police under Section 161 of the Cr.
The Sessions Court has apparently proceeded on the basis that PW 4, eye witness to the incident had companyroborated the evidence of the companyplainant PW 3 .
The 8th Prosecution Witness PW 8 who had been working as Assistant Surgeon at the Primary Health Centre, Mohandra described the wounds found on the body of the companyplainant and opined that the injuries were caused by splinters from a firearm.
The report was forwarded to the Simariya Police station where Crime No.110/1992 was registered.
The 7th Prosecution Witness PW 7 was the Investigating Officer, who deposed that he had sent the report of the incident to the Simaria Police Station on the basis of which criminal case No.110/1992 under Section 307/34 of the Indian Penal Code had been registered and had examined the companyplainant, Prem Shankar Kateha PW 4 , Sabbu Chourasia and Bharat and had seized blood stained clothes, articles etc.
In his cross examination the companyplainant PW 3 admitted that one year before the incident his uncle Sunder Lal, that is, father of the main accused Khilai, had filed an application against the companyplainant PW 3 and his father Asha Ram at Tehsil office, Pawai regarding the land in dispute.
The companyplainant PW 3 also admitted that there were several other cases between the companyplainant PW 3 and or members of his immediate and the accused appellant as also members of the accused appellants family which were still pending at the time of the incident.
There is numberhing in the evidence of PW 1, PW 2, PW 5, PW 6, PW 7, PW 8, PW 9, PW 10 and PW 11 to establish the guilt of the accused appellant.
Indira Banerjee, J. This appeal is against a judgment and order dated 5 th November, 2008 passed by the High Court of Madhya Pradesh at Jabalpur, dismissing Criminal Appeal No.1050 of 1994 filed by the appellant, and upholding the judgment dated 26th August, 1994 Signature Not Verified passed by the Additional Sessions Judge, District Panna, Madhya Digitally signed by RAJNI MUKHI Date 2020.02.14 163220 IST Reason Pradesh in Sessions Case No.
