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2012 DIGILAW 200 (MP)

Pawan Shukla v. State of M. P.

2012-02-14

M.A.SIDDIQUI, RAKESH SAKSENA

body2012
JUDGMENT : Asper Rakesh Saksena , J . : - 1.Appellant/accused has filed this appeal against the judgment dated 26-12-2006,passed by I Additional Sessions Judge, Chhatarpur (M.P.) in Sessions Trial No. 133/2003, convicting him under Section 302 of theIndian Penal Code and sentencing him to imprisonment for life with fine of Rs . 1,000/-. In default of payment of fine, furtherrigorous imprisonment for six months. 2.In short, the prosecution case is that Ram Prasad, the deceased, had taken afield of accused Pawan Shukla on Batai . This field was situated in Village Bhuiya Purwa in District Chhatarpur . At the time of occurrence, gram crop in thefield was being reaped. On 23-3-2003 ,Ram Prasad, Bachcha , Usha , Sumitra , Ganga Sagar , Ram Kishore and Pancha were busy in reaping the crop. The field of accusedwas also adjoining. Accused and his father Lallu Shukla were present on their field. At about 2.00 p.m. , when a cow of accused startedgrazing in the filed of Ram Prasad, his daughter Sumitra drove her out towards the field of accused. Accused researched there with hisrifle and remonstrated with Sumitra and manhandledher by catching her hair. On hearing cries of Sumitra ,Ram Prasad and other persons reached there and tried to save her. It is allegedthat accused assaulted them with butt of his gun. When Ram Prasad grappled withaccused, accused fired his rifle at him, which hit him in his abdomen. As aresult of gun shot injury, Ram Prasad fell down and died. Accused ran away. Ganga Sagar (P.W. 4), the son of deceased, and other persons carried the body of Ram Prasadto Police Station, Prakash Bamhori and lodged First Information Report ( Exh . P-1) on the same day at 4.50 p.m. 3.Investigating Officer Arvind Singh (P.W. 16) reachedat the spot, conducted inquest proceedings and prepared inquest memo ( Exh . P-12) in presence of Lalu Kushwaha (P.W. 10) and Tulli (P.W. 15). He seized the blood stained earthand broken butt of gun from the spot and prepared seizure memo ( Exh . P-2). He also drew the spot map( Exh . P-11). Dead body ofdeceased Ram Prasad was sent to Primary Health Centre, Laundi for post-mortem examination. 4.On 24-3-2003 , Dr. He seized the blood stained earthand broken butt of gun from the spot and prepared seizure memo ( Exh . P-2). He also drew the spot map( Exh . P-11). Dead body ofdeceased Ram Prasad was sent to Primary Health Centre, Laundi for post-mortem examination. 4.On 24-3-2003 , Dr. S.S. Chaurasiya (P.W. 8) conducted post-mortem examination ofthe body of Ram Prasad and found a gun shot injury in his abdomen .In his opinion, deceased died due to excessive haemorrhage from the said injury. Dr. Chaurasiya gave hispost-mortem examination report ( Exh . P-9). 5.On 30-3-2003 , accused wasarrested and on his information a rifle was seized from the verandah of hishouse. Seized articles were sentto Forensic ScienceLaboratory for examination. After investigation, charge-sheet was filed and thecase was committed for trial to the Court of Session. 6.During trial, accused abjured his guilt and pleaded false implication.According to his statement under Section 313, Cr.PC , Pancha and some other labourers used to steal away the reaped crops from his field. When his father viz., Lallu Shukla made a complaint tofamily members of deceased, they pretended that the crop was grazed by cow. Onthe day of occurrence, when Sumitra drove the cowtowards his stock of the reaped crop, his father admonished Sumitra .Being annoyed, deceased and his son Ganga Sagar bent upon assaulting his father with spear. When hetried to save him, Bachcha (P.W. 1) assaulted himwith lathi . He warded of the blow with his gun, as aresult of which his gun broke down and he heard a sound of fire. According tohim, a false case was concocted against him. 7.Prosecution, to substantiate its case, examined 16 witnesses. Bachcha Kushwaha (P.W. 1), Usha (P.W. 2), Sumitra (P.W. 3), Ganga Sagar (P.W.4), Ram. Kishore (P.W. 11) and Pancha (P.W. 13) were examined as eye-witnesses of the occurrence. Out of aforesaidwitnesses, Ganga Sagar , Ram Kishore and Pancha did notsupport the prosecution case. Dr. S.S. Chaurasiya (P.W. 8) was examined to prove the injury found on the body of deceased. In defence , accused also examined Dr. S. Prajapati (D.W. 1) and Loknath Rajput (D.W. 2). Trial Court, after appreciation of evidence and upon trial, concludedthat accused fired gun shot at deceased as a result of which he died andconvicted and sentenced him as mentioned above. 8.Aggrieved by his conviction, accused/appellant has filed this appeal. 9. In defence , accused also examined Dr. S. Prajapati (D.W. 1) and Loknath Rajput (D.W. 2). Trial Court, after appreciation of evidence and upon trial, concludedthat accused fired gun shot at deceased as a result of which he died andconvicted and sentenced him as mentioned above. 8.Aggrieved by his conviction, accused/appellant has filed this appeal. 9. Shri Sharad Verma , learned Counsel for the accused/appellant, did notagitate much that deceased received gun shot injury at the hands of accused.He, however, submitted that the circumstances in which the gun is said to havebeen fired by accused, he could not have been held liable for the charge underSection 302 of the Indian Penal Code. He submitted that from the evidence ofeye­witnesses it was apparent that the incident occurred suddenly after analtercation between accused and Sumitra , whendeceased grappled with him. He further submitted that it was also on recordthat the father of accused suffered injury at the hands of members of thecomplainant party in the same incident. Therefore, at the most, accused couldhave been held liable for the offence under Section 304-11 of the Indian PenalCode. On the other hand, Smt . Nirmala Nayak , learned Government Advocate submitted that it was established beyond doubt thataccused fired gun shot in the abdomen of deceased. When the gun was fired onthe deceased from a close range, it stood established that the intention of theaccused was to commit murder of the deceased. She justified the impugnedjudgment of conviction of accused under Section 302 of the Indian Penal Code. 10.It has not been disputed that deceased died of gun shot injury and that hisdeath was homicidal in nature. The First Information Report of the occurrencewas lodged by- Ganga Sagar (P.W. 4) stating that accused fired gun shot at deceased. Bachcha (P.W. 1), Usha (P.W. 2) and Sumitra (P.W. 3) also made similar statements before the Court. Investigating Officer Arvind Singh (P.W. 16) reached the spot and conductedinquest proceedings in presence of Lalu Kushwaha (P.W. 10) and Tulli (P.W. 15). They found that deceased Ram Prasad died due to gun shot injury. Inquest memorandum ( Exh . P-12) wasprepared by Arvind Singh (P.W. 16). The post-mortemexamination of the body of deceased was done by Dr. S.S. Chaurasiya (P.W. 8). Dr. Chaurasiya found following injury onthe body of deceased : - "(1) A firearm wound of entrance of abdomen below the umbilicusmore on right side. Inquest memorandum ( Exh . P-12) wasprepared by Arvind Singh (P.W. 16). The post-mortemexamination of the body of deceased was done by Dr. S.S. Chaurasiya (P.W. 8). Dr. Chaurasiya found following injury onthe body of deceased : - "(1) A firearm wound of entrance of abdomen below the umbilicusmore on right side. 2.5 x 2.5 cm circular. Greasy black margin blackening and tattooing present in 6 x 6 cmradius. Gun powder blackish also present in 10 cm radius. Intestine protruding out from the wound. Woundof exit present just above the iliac crest on right side. Ragged irregular everted margins 3x3 cm. Blood trickling from the wound ofexit. Inthe opinion of doctor, the deceased died due to shock by severe haemorrhage due to firearm wound." Thus,from the above evidence, it is clearly established that the deceased died dueto gun shot injury and that his death was homicidal in nature. 11.Now the question before us is whether appellant caused firearm injury to deceased ? Bachcha (P.W. 1), theson of deceased, stated that his father had taken 1-1/2 beegha of agricultural land on Batai from accused Pawan Shukla . On 23-3-2003 , he, Ram Prasad, Ganga Sagar and Sumitra were reaping and stocking crops. While his sister Sumitra was working in the field, at about 3.00 p.m. , a cow of accused started grazing thereaped crops. Sumttra drove out that cow. Accused,who had a gun, reached there, abused and manhandled Sumitra .Hearing her cries, he, Ram Prasad, Ganga Sagar and Usha reached there.Accused assaulted Ganga Sagar and Usha with the butt-of gun and fired gun shot atRam Prasad. Bullet hit Ram Prasad in his abdomen and he fell down dead. Incross-examination, this witness admitted that Lallu Shukla , the father of accused, was also grazing cows atnearby place. He, however, denied that witness Ganga Sagar assaulted Lallu Shukla with a spear on his hand. He admitted that Lallu had gone to police station, but he did not knowwhether he lodged any report or not. Though he denied that deceased grappledwith accused, but he was confronted with his police station ( Exh . D-l), wherein he mentioned that his father grappledwith accused. Certain other contradictions were pointed out by the learnedCounsel for the appellant in the statement of this witness, but they were notmaterial by nature. Though he denied that deceased grappledwith accused, but he was confronted with his police station ( Exh . D-l), wherein he mentioned that his father grappledwith accused. Certain other contradictions were pointed out by the learnedCounsel for the appellant in the statement of this witness, but they were notmaterial by nature. The evidence of Bachcha (P.W. 1)finds support from the evidence of Usha (P.W. 2) and Sumitra (P.W. 3), who alsoreiterated the same story and categorically stated that when they were reapingcrops, after an altercation between Sumitra anddeceased on one side and accused on the other, accused fired gun shot, whichhit deceased in his abdomen. The presence of these witnessesin natural. Though they are close relatives of deceased, but, looking totheir consistency and simplicity, they appear to be truthful witnesses. Ganga Sagar (P.W. 4), another sonof deceased, was though declared hostile, but, in cross-examination by theprosecutor, he repeated the same story saying that after an altercation andscuffle between deceased and the accused, accused fired his rifle at his fatherRam Prasad, which resulted in his death. When this witness was subjected tocross-examination by accused, he admitted that there occurred a quarrel over adispute about grazing of the crops by the cow. He even admitted that Lallu , the father of accused, had suffered an injury byspear and further that accused had also suffered injuries by lathi . Evidence of this witness finds corroboration fromthe First Information Report ( Exh . P-1) lodged by himimmediately after the occurrence. The evidence of aforesaid eye-witnessesstands further corroborated from the medical evidence of Dr. S.S. Chaurasiya (P.W. 8), who found gun shot injury in theabdomen of deceased. 12.After a critical analysis of the evidence of aforesaid prosecution witness, wefind it established that appellant fired gun shot at Ram Prasad, the deceased,as a result of which he died at the spot. 13.Learned Counsel for the accused/appellant contended that even if the evidence ,asadducedbytheprosecution,isaccepted,thecircumstanceswhich emerge out indicate that accused had no intention to commit under of deceased.The incident was sudden and it occurred just on the spur of moment without anypremeditation when a sudden altercation took place between Sumitra and the accused, when she drove out the cow of accused. He also referred to theevidence of Dr. He also referred to theevidence of Dr. S. Prajapati (D.W. 1), who statedthat on 30-3-2003 heexamined the injuries of appellant and his father Lallu Shukla , when they were brought by police constable.He found injuries of abrasion and pain on the body of accused and a penetratingand a contusion injury on the right arm of Lallu .These Injuries were simple in nature and were caused within 7-8 days before theexamination by him. Their injury reports are Exh . D-6-A and Exh . D-7. 14.We find substance in the submission made by the learned Counsel for the appellant.It has been admitted by the prosecution witnesses that the incident occurredsuddenly when Sumitra (P.W. 3) drove out a cow of theaccused from her field and accused manhandled her. It is apparent that deceasedcame suddenly and indulged in grappling with accused, who had a gun. Though it has not been admitted by Bachcha (P.W. 1), Usha (P.W. 2) and Sumitra (P.W. 3) that anyone from the side of deceased assaulted accused or his father,but it was indicated by Ganga Sagar (P.W. 4) that-accused and Lallu were assaulted. Itwas also evidence from the evidence of Investigating Officer Arvind Singh (P.W. 16) that when he went at the spot, hefound there a broken butt of gun, which he seized vide memorandum ( Exh . P-2). The evidence of Dr. S. Prajapati (D.W. 1) supports version of defence that accused and his father suffered some injuries at the time of incident. Itis also to be noted that there was no enmity between the two parties sincebefore. The field, which was being cultivated by the deceased and his familymembers, belonged to accused and it was he who had given them the said fieldfor that purpose of Batai . These facts unmistakablyindicate that there could have been no intention on the part of appellant tocommit murder of the deceased. In the above circumstances, the probability thatin a sudden altercation and quarrel accused fired a single gun shot atdeceased, as a result of which he died could not beruled out. In the similar circumstances, the Apex Court in cases of Surendra Singh @ Bittu Vs. In the above circumstances, the probability thatin a sudden altercation and quarrel accused fired a single gun shot atdeceased, as a result of which he died could not beruled out. In the similar circumstances, the Apex Court in cases of Surendra Singh @ Bittu Vs. Stateof Uttamnchal , AIR 2006 SC 1920 and Pappu @ Hari Oni vs. State of Madhya Pradesh, (2009) 11 SCC 472 , held that the case of accusedpersons fell under Fourth Exception to Section 300 of the Indian Penal Code andthey were liable to be convicted under Section 304-11 of the Indian Penal Codeand not under Section 302 of the Indian Penal Code and their conviction wasmodified to under Section 304-11 of the Indian Penal Code. 15.For the reasons aforesaid, we find that the conviction of appellant under Section302 of the Indian Penal Code was not justified, as such, we modify hisconviction to under Section 304-11 of the Indian Penal Code and sentence him torigorous imprisonment for seven years and also direct him to pay a fine of?2000/-. In default of payment of fine, he shall undergo further rigorousimprisonment for six months. " 16.Appeal partly allowed.