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2016 DIGILAW 1760 (RAJ)

Amilal S/o Shri Jhabu v. State of Rajasthan

2016-12-05

NAVIN SINHA, VIJAY KUMAR VYAS

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JUDGMENT : 1. The Appellant stands convicted under Section 302 IPC to life imprisonment with fine and default stipulation by the District and Sessions Judge Kishangarhbas dated 21/11/1984. 2. PW-1, Hariram brother of the deceased Jumma lodged a police report Exhibit P/1 on 27/02/1984 formally registered as FIR Exhibit P/2 that the previous night the Appellant had fired causing the death of his brother. The postmortem of the deceased Exhibit P/6 was conducted by PW-4, Dr. Amarnath Gupta affirming pellet injuries from a fire-arm on the head opining that it had been fired from a distance of 15-20 feet. 3. Learned Counsel for the Appellant submitted that if the deceased was atop the hill and the Appellant fired from below, the injuries should have been upwards and not in the reverse direction. It was next submitted that according to the prosecution evidence itself there was commotion that thieves had come when the PW-3, Kishanlal who was holding a torch went out with the deceased in search of the thief at 10:00 pm. According to PW-2, Mawasi and PW-3, Kishanlal it was a dark night. There is no evidence whatsoever that there was any visibility much less even a silhouette of a human being visible. The question of the Appellant having any intention to kill much less knowledge even does not arise. It is patent that the Appellant intended to fire for scaring away the thieves. That the Appellant may have insisted on firing despite the caution by PW-2, Mawasi because PW-3, Kishanlal and the deceased may have been ahead in the darkness may be evidence of callous negligence on his part unmindful of the consequences but by no stretch can it be said that he had intention or knowledge to cause death of Jumma. 4. The statement of PW-3, Kishanlal to depute motive against the Appellant because of an alleged land dispute stands falsified from his own police statement where he gave out a different story that the Appellant was having eyes for the wife of the deceased. The Appellant has been acquitted of the charge under the Arms Act. Even though the police station was only 14 kms. away there has been unreasonable delay in lodging of the FIR after approximately 14 hours. 5. The Appellant has been acquitted of the charge under the Arms Act. Even though the police station was only 14 kms. away there has been unreasonable delay in lodging of the FIR after approximately 14 hours. 5. Counsel for the State opposing the appeal submitted that the Appellant was told not to fire as there existed a serious possibility and risk of the pellet hitting PW3, Kishanlal or the deceased who were walking ahead. There may have been sufficient light for identification of a human form even in the darkness. Even though the Appellant may not have any intention to kill, he can surely be attributed knowledge when he fired despite being told not to do so and the reason why he should not fire. Knowledge in the circumstances can be attributed. The act of the Appellant can classify as an offence under Section 326 IPC for voluntary causing injuries by dangerous weapon or means. The delay in lodging of the FIR has been explained on account of the death taken place and the family members attending to the deceased as also that PW-3, has deposed that after having seen the dead-body of his brother he had fainted. 6. We have considered the submissions on behalf of the parties and perused the evidence on record. 7. The submission on behalf of the appellant that if he had fired from below the hill the injuries should have been upwards and not downwards does not appeal to us for the reason that the pellets after bursting would travel in all directions. PW-4, Dr. Amarnath Gupta has also stated in his cross-examination that the pellets have tendency to disburse in different directions. 8. The prosecution case of enmity is held to be unsustainable as PW-3, Kishanlal gave a different story in his police statement that the Appellant had eyes for the wife of the deceased while in court he talked of a dispute with regard to passage. It is considered sufficient material contradiction to hold that in fact no enmity existed. 9. PW-3, Kishanlal is stated to have left home earlier with the deceased Jumma on hearing commotion that thieves have come. The witness was carrying a torch. PW-2, Mawasi was walking along with the Appellant. Both he and PW-3, Kishanlal have talked of a dark night when the occurrence took place at about 10.00 pm. 9. PW-3, Kishanlal is stated to have left home earlier with the deceased Jumma on hearing commotion that thieves have come. The witness was carrying a torch. PW-2, Mawasi was walking along with the Appellant. Both he and PW-3, Kishanlal have talked of a dark night when the occurrence took place at about 10.00 pm. Both of them have not mentioned anything about the availability of natural light from the moon good enough to identify even the silhouette of a person walking ahead. The distance from which firing is estimated to have been made has been estimated to be 15-20 feet. No doubt, the Appellant was told not to fire but in his zeal to scare the thieves he insisted in doing so. It is difficult to hold that he had the knowledge that any firing by him would hit PW-3, Kishanlal or the deceased. It is a different thing to say that the possibility that it may or may not hit either of them may have existed. A point blank shot fired in the night with complete darkness not aimed specifically at anyone having no target, could easily have missed the person walking ahead also. 10. Once we come to the conclusion that the Appellant was unable to visibly identify any human form ahead and fired from out of a zeal to scare the thieves which unfortunately hit the deceased, the fact that he may be cautioned not to have shot because the risk existed of the shot either hitting PW-3, Kishanlal or the deceased cannot equate it to a voluntary act on his part to cause grievous hurt by a dangerous weapon. 11. Section 39 IPC defines the term "voluntarily" as follows:- "39. Voluntarily.-A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it." 12. Similarly, in Blacks Law Dictionary the word "voluntarily" has been defined as something done by design or intention, intentionally, intended and not accidental. 13. Apparently, the conduct of the Appellant in having fired cannot be brought within that category for conviction under Section 326 IPC. Similarly, in Blacks Law Dictionary the word "voluntarily" has been defined as something done by design or intention, intentionally, intended and not accidental. 13. Apparently, the conduct of the Appellant in having fired cannot be brought within that category for conviction under Section 326 IPC. Appropriately, the conduct of the Appellant falls under Section 304-A IPC, causing death by negligence not amounting to culpable homicide by doing rash or negligent act. In AIR 1954 SC 271 (Sadhu Singh Harnam Singh v. State of Pepsu) altering the conviction to one under Section 304-A IPC it was observed as follows:- "22.......We are therefore of the opinion that the High Court was clearly in error in holding that the accused was guilty of the offence of murder under Section 302 IPC. On the materials placed on the record it could not be held proved that he had any intention of firing at the Mahant. He seems to have pulled the trigger without aiming at the Mahant in a state of intoxication in order to see that by the gun fire the Mahant was prevented from leaving his place. It was a wholly rash and negligent act on his part or at the worst was an act which would amount to manslaughter. It could not be held to constitute an offence of murder. No intention of causing death or an intention of causing such bodily injury as being sufficient in the ordinary course of nature to cause death could be ascribed to the accused or readily inferred in the circumstances of this case." 14. In 1994 Supp (2) SCC 67 (Balwant Singh v. State of Punjab) the firing was done in the dark at 9 pm without aiming it particularly at anyone. Altering the conviction from 302 IPC to one under 304-A it was held as follows:- "8. Then the question would be whether an offence under Section 304-A IPC is made out? The provisions of this section apply to cases where there is no intention to cause death and no knowledge that the act done in all probabilities will cause death. Therefore this provision is directed at offences outside the range of Sections 299 and 300 IPC and obviously contemplates those cases into which neither intention nor knowledge enter. The provisions of this section apply to cases where there is no intention to cause death and no knowledge that the act done in all probabilities will cause death. Therefore this provision is directed at offences outside the range of Sections 299 and 300 IPC and obviously contemplates those cases into which neither intention nor knowledge enter. The words "not amounting to culpable homicide" in the section are very significant and it must therefore be understood that intentionally or knowingly inflicted violence directly and wilfully caused is excluded. The section applies only to such acts which are rash or negligent and are directly the cause of death of another person. In other words, a rash act is primarily an overhasty act as opposed to a deliberate act but done without due care and caution...." 15. The Appellant has already undergone custody of approximately one year and ten months which is considered sufficient punishment in the facts and circumstances of the case. 16. The conviction of the Appellant is therefore altered from under Section 302 IPC to one under Section 304-A IPC and he is sentenced to the period already undergone. 17. The appeal is allowed in part.