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-Report by Pranav Mathur

The Gwalior Bench of the Madhya Pradesh High Court, on the 15th of February 2023, allowed for the partial acceptance of an appeal, by allowing a majority of it, in the case of Tinku@ Vijay Singh v. The State of Madhya Pradesh. The appeal was against the Trial Court’s decision of convicting the two appellants for murder, as punished under Section 302 of the Indian Penal Code (hereinafter referred to as the “IPC”), 1860. Provisions of the Arms Act, 1959 were also included in the charges, which one of the appellants was convicted for.


On the morning of the 10th of December 2022, the two appellants arrived at the place of occurrence, an English Liquor shop. Both of them demanded alcohol, but on credit. When they were denied being given any, they hurled abuses at the workers there, and left, after exclaiming that they’d be returning shortly. Upon their return, they assaulted one of the workers of the liquor shop, and one of the appellants fired at him using a country-made pistol that he had procured. Subsequently, both of the appellants fled from the spot. The injured worker’s dying declaration was recorded, proceeding which he succumbed to his injuries after he was en route to a hospital. The appellants were charged with murder, and the appellant who shot the worker was additionally charged with Section 25 (1B) (a) read with Section 27 of the Arms Act. Both of them abjured their guilt, and pleaded their false implication in the case.


The appellants contended that the decision of the Trial Court had been based on the misappreciation of evidence which had not been materially interpreted in the right perspective. Furthermore, they argued that the purported eye-witness in the present case cannot be considered as reliable since he witnessed the incident through gratings encasing the liquor shop, which have to have hampered with his vision during the incident. Additionally, they argued that the dying declaration of the injured worker does not bear the signature of a medical official, and his condition was critical at the time of his death. Had his condition not been critical, they argue, the injured worker would’ve filed the complaint himself, and not through a person. The other eye witnesses were relatives of the deceased, making them interested witnesses. They further contended that due to the non-deposition of the fact that a quarrel had arisen between the appellants and the deceased, mens rea cannot determinedly be proven. The pistol seized from the one of the appellants cannot truly be construed as the weapon of crime, as it had not been produced before the court, and the possibility of it being tampered cannot be ruled out, due to the delay in sending it for examination. They even contended that the statements of the witnesses and the deceased have contradictions in them which renders the entire case made by the prosecution rather doubtful. 


The Court concluded that fatal gunshots were, as a matter of fact, fired by one of the appellants, which led to the death of the deceased. The Court also opined that the Trial Court had, rather correctly, not given importance to minor depositional inconsistencies as they do not materially alter the case. The Court took the help of the case of Laxman v. State of Maharashtra and held that the dying declaration cannot be called unacceptable just because a doctor’s certificate of fitness was missing. Further, the Court held that the mere presence of relatives doesn’t make the dying declaration doubtful. At this juncture the Court recalled the maxim – nemo moriturus proseumitur mentiri – which means that when one is about to meet his maker, one does not lie. As for the nature of the crime committed, the Court opined that mens rea was absent in the conduct of the appellants, as they committed this offence in the heat of passion, which is considered an exception to the definition of murder, as given in Section 300 of the IPC. The non-recovery of the murder weapon is essential for conviction, however, if enough evidence is available on record, even in the absence of the weapon itself, it may still lead to a conviction, as was held in State through the Inspector of Police v. Laly @ Manikandan and Anr. The Court therefore altered their punishments from those of Section 302 IPC to Section 304 Part I of the IPC. Their sentences were subsequently reduced to the time they had already spent in prison, and hence, their appeal was partially allowed.


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