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Madhya Pradesh High Court · body

2016 DIGILAW 126 (MP)

Shiv Kumar Singh v. State of M. P.

2016-02-17

N.K.GUPTA

body2016
JUDGMENT 1. The appellant has preferred the present appeal being aggrieved with the judgment dated 12.5.2004 passed by 1st Additional Sessions Judge, Bhind in S.T. No.194/2003, whereby the appellant has been convicted of offence under section 307 of IPC and sentenced to five years’ rigorous imprisonment with fine of Rs.1,000/-. 2. Prosecution’s case in short is that on 19.7.2002, a quarrel had taken place between Shiv Kumar Singh with Rakesh Singh and Man Singh. On 23.7.2002 complainant Balveer Singh (PW6) went to village Birgawan from his house at village Siloli to run a shop of “Prasad” near a Hanuman temple. Raghvendra Singh (PW9) brother of Balveer Singh and other witnesses Mahesh Singh (PW7), Man Singh (PW8) and Tahsildar Singh (PW10) went to that temple to offer a Pooja and Katha. While returning from the temple, when victim Balveer Singh and his companions were 200 yards away from the temple, the appellant having a 12 bore gun came out with Bhutte Singh and covered the victims. The appellant Shiv Kumar and his coaccused Bhutte Singh were hidden near a culvert. Someone who had voice like Arvind exhorted the appellant Shiv Kumar to fire and Shiv Kumar fired with 12 bore gun. Victim Balveer Singh sustained simple injuries of pellets on his neck, chest, abdomen and thighs. Thereafter the appellant and his companions ran away from the spot towards the village Raipura. The FIR Ex.P-10 was lodged by victim Balveer Singh thereafter he was sent to District Hospital, Bhind, where he was examined by Dr. J.P.S. Kushwaha (PW3), who recorded the MLC report Ex.P-5. He found the simple abrasions caused at so many places (approximately 35 to 40) at chest, abdomen, right shoulder and other places on the body of victim Balveer Singh. He referred the patient for radiological examination. Dr. S.C. Gupta (PW4) examined the victim radiologically and gave his report Ex.P-6. He found so many radio opaque shadows at various places on neck, right chest and abdomen of the victim Balveer Singh. After due investigation, a charge-sheet was filed against the appellant before the JMFC, Mahgaon, who committed the case to the Court of Sessions and ultimately it was transferred to 1st Additional Sessions Judge, Bhind. 3. The appellant abjured his guilt. He did not take any specific plea but has stated that he was falsely implicated in the matter due to enmity developed during election. 3. The appellant abjured his guilt. He did not take any specific plea but has stated that he was falsely implicated in the matter due to enmity developed during election. However, in defence Rakesh Singh (DW1), Bhagatanand (DW2), Vijayram (DW3), Ramji Singh (DW4) etc. were examined to show that no disturbance was caused at the time of Katha and no dispute took place before these witnesses. It is also tried to establish that victim Balveer Singh took a sum of Rs.15,000/- from the appellant Shiv Kumar and when the appellant demanded such money, he was falsely implicated. 4. The trial Court after considering the evidence adduced by the parties, convicted and sentenced the appellant as mentioned above. 5. Since no one was appearing for the appellant to argue the matter, Shri Manoj Kumar Dwivedi, Advocate from the penal of High Court Legal Services Committee, who has a vast experience in dealing with criminal cases, was appointed to argue the matter on behalf of the appellant and thereafter I have heard the learned counsel for the parties. 6. Looking to the evidence by defence witnesses, it appears that the appellant took a plea that he was falsely implicated in the matter because he demanded the sum which was given to victim Balveer Singh. However, if evidence of Balveer Singh (PW6) is perused then no such suggestion was given to him that he took some amount from the appellant Shiv Kumar or he did not return such amount. Hence, it appears that defence witness Ramji Singh (DW4) is a cooked witness, who cannot be believed. Victim Balveer Singh has refused about any enmity with the appellant Shiv Kumar, hence, it cannot be said that the appellant was falsely implicated in the matter due to enmity. However, it is established that there was enmity between the parties specially between Rakesh and Arvind versus Man Singh and Mahesh. The fact of enmity is a double edged weapon so that one enemy can falsely implicate his enemy or he may assault on him. Hence, the evidence of various witnesses is to be examined minutely. 7. In the present case, the various eye-witnesses have corroborated the victim Balveer Singh. The fact of enmity is a double edged weapon so that one enemy can falsely implicate his enemy or he may assault on him. Hence, the evidence of various witnesses is to be examined minutely. 7. In the present case, the various eye-witnesses have corroborated the victim Balveer Singh. Balveer Singh (PW6), Mahesh Singh (PW7), Man Singh (PW8), Raghvendra Singh (PW9) and Tahsildar Singh (PW10) have stated that suddenly the appellant fired with a 12 bore gun and the victim Balveer Singh sustained 35 to 40 injuries of the pellets. The contradiction between the evidence of these witnesses along with their case diary statements was recorded but that is not so material in the case. Before the Court, these witnesses have stated that Arvind and Rakesh were also present with the gun and Arvind exhorted the appellant Shiv Kumar to fire and ultimately Shiv Kumar had fired. However, since Arvind and Rakesh were not the accused in the case because nothing was mentioned by the witnesses against them in their case diary statement or the FIR Ex.P-10, therefore, if the witnesses have stated something extra for Arvind and Rakesh then it is possible that they would have stated against them to add them as an accused under section 319 of the CrPC but their assertion relating to Arvind and Rakesh does not make their testimony to be disbelievable against the appellant Shiv Kumar. 8. If the FIR Ex.P-10 is considered then it would be apparent that the quarrel, which took place on 19.7.2002, was between Rakesh and Arvind versus Man Singh and Mahesh. It is not mentioned that any quarrel took place between Balveer Singh and Arvind or Rakesh. It is not stated that such quarrel took place between Shiv Kumar or Balveer Singh. If an unknown person would have fired with a 12 bore gun then Balveer Singh would have implicated Rakesh and Arvind directly if he and witnesses would not have seen the real culprit. The incident took place at about 11:00 a.m. in the broad day light and, therefore, there could not be any confusion to the witnesses about the culprit. When no direct conflict took place of the appellant Shiv Kumar in the previous incident then the complainant or witness had no reason to implicate him falsely in the matter. 9. The incident took place at about 11:00 a.m. in the broad day light and, therefore, there could not be any confusion to the witnesses about the culprit. When no direct conflict took place of the appellant Shiv Kumar in the previous incident then the complainant or witness had no reason to implicate him falsely in the matter. 9. Also the evidence given by the witnesses is dully corroborated by the timely lodged FIR Ex.P-10 which is lodged within one and half hours, whereas the police station was 8 kms away and sufficient time was consumed in taking the injured complainant to the Police Station. Also the testimony of the complainant Balveer Singh is dully corroborated by Dr. J.P.S. Kushwaha (PW3), who found 35 to 40 simple injuries caused by pellets to the victim Balveer Singh. The preliminary view of Dr. Kushwaha was that the victim Balveer Singh has sustained injuries due to impact of various pellets but he referred him for radiological examination to confirm his view. Dr. S.C. Gupta (PW4) examined the victim Balveer Singh radiologically and gave a report Ex.P-6. He found so many radio opaque shadows on neck, right chest, abdomen and thighs of the victim Balveer Singh. Such radiological report clearly indicates that lead particles were present in the body of victim Balveer Singh and, therefore, pellets were present in his body. 10. As stated by Dr. Kushwaha and Dr. Gupta, there was difference in number of injuries and number of pellets found in the body of the victim. However, if pellet is pierced in the skin without much depth, such pellets could be dropped when the victim Balveer Singh was being taken to the hospital and, thereafter for his radiological examination, but wounds of such pellets would have remained available so that Dr. Kushwaha could count that there were 35 to 40 wounds of such nature found upon the victim Balveer Singh. Under these circumstances, where the testimony of Balveer Singh is dully corroborated by other witnesses along with timely lodged FIR Ex.P-10 and opinion given by Dr. J.P.S. Kushwaha (PW3) and Dr. S.C. Gupta (PW4), hence, it was proved beyond doubt that the appellant Shiv Kumar fired with a 12 bore gun for once causing simple injuries to the victim Balveer Singh. J.P.S. Kushwaha (PW3) and Dr. S.C. Gupta (PW4), hence, it was proved beyond doubt that the appellant Shiv Kumar fired with a 12 bore gun for once causing simple injuries to the victim Balveer Singh. Minor contradictions in the statement of witnesses do not give any advantage to the appellant and those contradictions were mainly for Arvind and Rakesh, who were not the accused in the case. The trial Court has rightly found that the appellant fired with 12 bore gun causing simple injuries to the victim Balveer Singh. 11. The learned counsel for the appellant submits that the appellant did not intend to kill Balveer Singh. Since quarrel of Arvind and Rakesh took place with Man Singh and Mahesh, therefore, if they would have interested to exhort the appellant then he would have fired upon Man Singh and Mahesh. It is not the case that the appellant fired upon someone else and few pellets were struck in the body of the victim Balveer Singh. On the contrary, it is apparent that all the pellets got struck on the body of the victim Balveer Singh. No definite enmity of the appellant could be proved by the prosecution, with Balveer Singh so that he would have attempted to kill the victim Balveer Singh. It would be apparent that no quarrel took place between Shiv Kumar and Balveer Singh prior to the incident and, therefore, if the appellant Shiv Kumar had fired on the instigation of others then still it cannot be said that he was interested to kill the victim Balveer Singh. 12. It is apparent from the evidence given by Dr. J.P.S. Kushwaha (PW3) that though 35 to 40 pellets discharged from the gun had struck in the body of the victim Balveer Singh but he did not sustain any grave or fatal injury. Doctors did not give any opinion that injuries caused to the victim Balveer Singh were sufficient to cause his death during natural course of his life. Under these circumstances, neither the appellant intended to kill the victim Balveer Singh nor Balveer Singh sustained any fatal or grave injury due to a single fire of various pellets. Hence, ingredients of section 300 of IPC are not attracted and, therefore, the appellant could not be convicted of offence under section 307 of IPC. His crime falls within the purview of section 324 of IPC. 13. Hence, ingredients of section 300 of IPC are not attracted and, therefore, the appellant could not be convicted of offence under section 307 of IPC. His crime falls within the purview of section 324 of IPC. 13. Learned counsel for the appellant has invited attention of this Court to the judgment passed by the apex Court in case of Kundan Singh v. State of Punjab [ AIR 1982 SC 62 ], and judgment passed by the apex Court in case of Merambhai Punjabhai Khachar and others v. State of Gujarat [ AIR 1996 SC 3236 ]. In aforesaid both the cases, the apex Court took a view that if fire was done by gun, pellets were discharged and a simple injury was caused then the accused cannot be convicted of offence under section 307 of IPC. A little portion of para 14 of the judgment passed by the apex Court in case of Merambahi Punjabhai Khachar (supra), may be read as under : “We do not think if we would be justified to read the aforesaid mens rea because though the injury was by a pellet, it only seems to have grazed the head of Sanjuben. We, therefore hold that ingredients of section 307 are not satisfied qua Sanjuben. Instead, the offence committed would attract section 324.” 14. On the basis of ratio laid by the Hon’ble apex Court in aforesaid cases of Merambahi Punjabhai Khachar (supra), and Kundan Singh (supra), it would be apparent in the present case that the appellant did not repeat the fire. He had no intention to kill the victim Balveer Singh. He immediately ran away after causing a single fire. The victim Balveer Singh did not sustain any grave or fatal injury and, therefore, instead of offence under section 307 of IPC, the offence under section 324 of IPC may constitute against the appellant. 15. So far as the sentence is concerned, it is mentioned that the appellant remained in the custody for eight months during trial and two months, twenty days during the appeal and again he is in custody since 23.3.2015, hence, he has already undergone a custody period of twenty months approximately. 15. So far as the sentence is concerned, it is mentioned that the appellant remained in the custody for eight months during trial and two months, twenty days during the appeal and again he is in custody since 23.3.2015, hence, he has already undergone a custody period of twenty months approximately. Looking to his custody period, the fact that he was first offender who has faced the trial and appeal for 12 to 13 years and that his overt act was not so serious, it would be appropriate that his sentence may be reduced to the period for which he remained in the custody. 16. On the basis of the aforesaid discussions, the appeal filed by the appellant Shiv Kumar Singh is hereby partly allowed. His conviction as well as sentence of offence under section 307 of IPC is hereby set aside. He is acquitted from the charge of section 307 of IPC, however, in the same head of charge, he is convicted of offence under section 324 of IPC, which is an inferior offence of the same nature. Looking to his custody period and aforesaid circumstances, which were discussed in the previous para of the judgment, jail sentence is imposed upon the appellant for the period for which he remained in the custody. 17. The appellant is in jail, therefore, office is directed to issue a supersession warrant without any delay so that he may be released as early as possible. 18. Copy of the judgment be sent to the Court below along with its record for information and compliance.