Judgment : (Delivered by Hon.Arvind K.Tripathi, J.) The present Criminal Appeal has been preferred on behalf of nine appellants against the judgment and order of conviction dated 9.12.2004 passed by First Additional Sessions Judge (Fast Track Court No.11), Chitrakoot in S.T.No.107 of 2003, arising out of Case Crime No.22/2003 under sections 147, 148, 149, 302 I.P.C. PS. Pahari, District Chitrakoot convicting and sentencing the appellant Pherum under section 147 for a period of one year R.I., under section 148 I.P.C. for two years' R.I. and under section 302 I.P.C. for life imprisonment and fine of Rs.1000/-, in default of payment of fine six months additional imprisonment convicting and sentencing the other appellants under section 147 for a period of one years' R.I. and under section 148 I.P.C. two years' R.I. and under section 302/149 I.P.C. life imprisonment and fine of Rs.1000/- each. In default six months' additional imprisonment with further direction that the sentences would run concurrently. Shri I.K.Chaturvedi and Shri Sushil Kumar Dwivedi, learned counsel appearing on behalf of the appellants and Shri A.N.Mulla learned A.G.A. appeared on behalf of the State. We have heard learned counsel for the appellants on 19.1.2016 and on 22.1.2016 and the judgment was reserved. The report was lodged and registered on 17.3.2003 at 9.45 P.M. on the written report submitted by the applicant Gauri Shanker which was written by the scribe Ved Prakash r/o Pahari, District Chitrakoot. According to First Information Report, on 17.3.2003 at about 9.00 A.M. accused appellant Raj Kumar started digging for construction of wall to close the passage used by the complainant and others. When the objection was raised by the informant and his brother, Shiv Pujan who asked to stop closing passage, then Raj Kumar started abusing and at the same time appellant Pheram armed with rifle and Ram Murat having double barrel gun, Murat Dhwaj with lathi, Bindeshwari having rifle came out from their houses abusing with premeditating and started assaulting. In the meantime accused Raj Kumar exhorted to kill, on which the accused appellant Pheram shot fire with his rifle at his brother Shiv Pujan, the brother of the informant causing injuries and his brother Shiv Pujan fell down. Ram Murat and Bindeshwari also fired with their gun. After hearing shouts of his elder brother, Ram Abhilash and uncle Hanuman and Vidya Sagar reached there, they were also assaulted.
Ram Murat and Bindeshwari also fired with their gun. After hearing shouts of his elder brother, Ram Abhilash and uncle Hanuman and Vidya Sagar reached there, they were also assaulted. The incident was witnessed by other villagers and family members. The body of Shiv Pujan was taken to the Government Hospital, Pahari which was lying there and leaving the dead body he went to lodge the First Information Report. Request was made to register the report and to take appropriate legal action. It was further written that the accused appellants after the incident went to their houses and out of them, even Bindeshwari was resident of village Bachran and Manoj was the resident of Parsola. On that written report the First Information Report was registered under sections 147, 148, 149 and 302 I.P.C. at Police Station Pahari, District Chitrakoot. The written report is Ext.Ka-1 and First Information Report is Ext.Ka 13. The then S.H.O. Pahari Anant Ram took the investigation, on the same day on 17.3.2003 and inspected the place of occurrence. Panchayatnama was prepared in between 10.15 to 11.45 in the Government Hospital, Pahari. The dead body was sent for postmortem examination. On 19.3.2003, the Investigating Officer, the then S.H.O. while was on duty for maintaining law and order at the time of Holi festival alongwith constable Mohd.Aslam, Lal Chandra, Ashok Kumar Tiwari, Mewa Lal with the Government Jeep with driver Om Prakash was also in search of offender to get secret information regarding presence of the offender in their house and they have decided to go somewhere else. After getting such information the S.H.O. with police force reached at village Pathramani and raided at the house of accused. The recovery of rifle was made from Pheram also. Three cartridges were also recovered from the pocket of Pheram. With one empty cartridge from inner pocket Bindeswari was arrested. He also confessed his guilt for firing at the deceased Shiv Pujan with licensed rifle. He was arrested and recovery of cartridge was taken into custody. The recovery memo was prepared in presence of the witnesses. The recovery memo was prepared and exhibited as Ext.Ka.8. The accused appellant Ram Pal, Murat Dwaj and Makradhwaj were also taken into custody. They were got medically examined on 19.3.2003 on 3.35 P.M. 3.50 P.M. and 4.15 P.M. respectively by Dr.Rajeev Dwivedi, Medical Officer of Government Hospital, Community Centre, Karvi.
The recovery memo was prepared in presence of the witnesses. The recovery memo was prepared and exhibited as Ext.Ka.8. The accused appellant Ram Pal, Murat Dwaj and Makradhwaj were also taken into custody. They were got medically examined on 19.3.2003 on 3.35 P.M. 3.50 P.M. and 4.15 P.M. respectively by Dr.Rajeev Dwivedi, Medical Officer of Government Hospital, Community Centre, Karvi. Postmortem examination on the body of Shiv Pujan was conducted by Dr.Rajeev Dwivedi on 17.3.2003 at 8.30 P.M. Dr.Rajeev Dwivedi, was examined as PW-6. Following ante- mortem injuries were found: 1) 1 cm x 1 cm on left chest wall 5.5 cm medial to left nipple. 2) 4th and 5th ribs broken on left side 3) Heart rupture 4) Foreign body piercing on left side of chest wall 5.5 cm medial to left nipple piercing left side 4th 5th ribs entering into heart and rupture entering into lunge rupture. It larged on right side near vertible column 25 cm below cervical paramount vertical thoracic cavity was found filled with blood. The cause of death was due to shock and hemorrhage as a result of anti mortem gun shot injuries. Rifle and empty cartridges were sent to Forensic Laboratory, Agra. After completing investigating and necessary formalities the charge sheet was submitted by the investigating officer. Charges were framed under sections 147, 148, 302 I.P.C. against the accused appellant Pheram and under sections 148, 417, 302/149 I.P.C. against the remaining eight accused appellants. They denied the charges and pleaded to be tried. The prosecution to prove its case examined as many as seven witnesses PW-1 Gauri Shanker, the informant, PW-2 Vidya Prasad, PW-3 Hanuman Prasad, PW-4 Ram Abhilash, eyewitness, PW-5 Anant Ram, Investigating Officer, PW-6 Dr.Rajeev Dwivedi who examined the injuries of the injured and conducted the postmortem examination on the body of the deceased Shiv Pujan, PW-7 Aziz Khan, Moharir who proved the chick report and First Information Report and G.D. Entry which was exhibited Ext.Ka.13-14 respectively. Learned counsel for the appellants challenged the judgment of conviction and sentence on the ground: that except Manoj, all the accused appellants were taken into custody on the same day by the police i.e. 17.3.2003. However, their arrest was shown on 19.3.2003 and arrest of Manoj was shown on 21.3.2003.
Learned counsel for the appellants challenged the judgment of conviction and sentence on the ground: that except Manoj, all the accused appellants were taken into custody on the same day by the police i.e. 17.3.2003. However, their arrest was shown on 19.3.2003 and arrest of Manoj was shown on 21.3.2003. No cartridges and ticklies were found on the spot and no empty cartridge was found in the rifle, hence the use of rifle of Pheram is doubtful that no independent public witnesses were examined to prove the recovery or arrest of the appellant. that the injuries of the appellant Ram Balak, Murat Dhawaj and Makradhwaj were not explained by the prosecution which was received in the same incident. When the appellants went to lodge the First Information Report, they were taken into custody on 17.3.2003 and First Information Report from their side was not registered that land belonged to the appellant Raj Kumar. There was decree in his favour, hence other side was aggressor and even if any injury was caused or Pheram shot fire by the rifle that was in self defence. Learned counsel for the appellants submitted that in fact the other side was aggressor because the land in question belonged to the appellant Raj Kumar. The civil suit was filed and there was decree in favour of the appellant Raj Kumar. At the place of old wall, new wall was to be constructed on the land of the appellant but other side raised objection. He started assaulting, hence the complainant side was aggressor and when they assaulted in which three persons appellant Ram Balak, Murat Dhwaj and Makara Dhwaj received injuries who were produced for medical examination under the police custody. So even if there was any fire or assault caused by any one from any of the appellants, that was only in self defence who submitted that neither cartridges nor any ticklie was found on the spot nor empty cartridge was found in the rifle, hence the same was recovered from the side of the appellant and there are other independent public witnesses either of the recovery from the arrest of the appellants, hence the prosecution case is doubtful.
When the rifle was shown to be recovered from the house of the appellants, the recovery of empty cartridges were shown from his pocket on 19.3.2003 which is unnatural for two days to keep the empty cartridges in his pocket. He also contended that except the appellant Manoj all the appellants were taken into custody on 17.3.2003. However, their arrest was shown on 19.3.2003 which is not supported by any independent witnesses. According to medical examination report of the appellant Ram Balak, Murat Dhwaj and Makra Dhwaj it is clear that as per information of the doctor, injuries were caused with duration of more than two days and less than three days, hence it is clear that the same were caused on 17.3.2003 in the same incident but these injuries were not explained by the prosecution, even the First Information Report from their side was not registered. The appellants were not aggressor because the wall was to be constructed in place of old wall on the land belonging to the appellant Raj Kumar. He further contended that there was free fight in between the parties and even if the appellants exceeded the right of self defence when Pheram shot fire, such act will not travel beyond section 304(II) I.P.C., hence the impugned order of conviction is liable to be set aside. Learned A.G.A. opposed the aforesaid prayer and submitted that there are eyewitness who supported the prosecution case. There is no discrepancy that there is no material contradiction to disbelieve the prosecution case. From the statement of the witnesses it is clear that the land in question where there was digging for construction of new wall, did not belong to the appellants nor it belonged to the complainant side. It was adjacent to the land of the appellant and the same belonged to Hari Shanker and that was being used by the appellants and other as passage (pathway) for which Hari Shanker raised no objection. He further contended that the land in question did not belong either to the appellants or the complainant rather it belonged to one Hari Shanker of the same village. Hence it is incorrect that the appellants were going to raise wall on their land.
He further contended that the land in question did not belong either to the appellants or the complainant rather it belonged to one Hari Shanker of the same village. Hence it is incorrect that the appellants were going to raise wall on their land. Harishanker was not examined to show that he had directed to raise wall because by raising wall the passage was to be closed though earlier when the objection was raised then the appellants said that they were not going to close the passage (pathway). Since the land in question did not belong to the appellants, hence they have no right of self defence and they were aggressor and as such they are not entitled for the benefit of self defence. According to G.D. entry no.9 when the appellants Ram Balak, Murat Dhwaj and Makra Dhwaj were arrested, during arrest force was used, hence they received simple injuries. There is no material to show that the land in question exclusively belonged to the appellants rather it is admitted fact that it belonged to third person Harishanker of the same village. He also contended that merely because empty cartridges were not recovered from the spot rather subsequently it was recovered from the appellants when he was arrested and rifle was taken into custody, then merely on this ground prosecution story will not be disbelieved. It is incorrect that the appellants were arrested on the same day i.e. 17.3.2003 and subsequently his arrest was shown on 19.3.2003, hence even if there were injuries found on the person of appellant Ram Balak, Murat Dwaj and Makra Dwaj, then there is no evidence to show that the injuries were received in the same incident. There is no First Information Report and any complaint registered from side of the appellants. Prosecution has clearly proved its case beyond reasonable doubt. There is no inconsistency in the incident and rightly the appellants were convicted and sentenced, hence the appeal being devoid of merit is liable to be dismissed. Considered the submissions of counsel for the parties and perused the records. According to the prosecution witnesses, the land in dispute did not belong either to the complainant and his family members or to the accused persons who were raising new wall after demolition of old one.
Considered the submissions of counsel for the parties and perused the records. According to the prosecution witnesses, the land in dispute did not belong either to the complainant and his family members or to the accused persons who were raising new wall after demolition of old one. According to prosecution case the accused appellant Raj Kumar was constructing the wall on his land but as per evidence the land in dispute belonged to one Hari Shanker. The complainant side is claiming that the land was being used as pathway which was being closed by raising wall and when the objection was raised, then the dispute took place. The accused appellants Ram Balak, Murat Dhwaj and Makra Dhwaj also received injuries who were medically examined on 19.3.2003 and as per opinion of the doctor duration of the injuries was found to be more than two days and less than three days, hence it appears that the same has been caused in the incident dated 17.3.2003. The land regarding which there was civil suit is adjacent to the land belonging to the Harishanker and Harishanker was not examined either by the prosecution or by the defence to prove whether the land was being used as passage or wall was being raised with his consent. It is also clear that the injuries caused to the appellants Ram Balak, Murat Dhwaj and Makra Dhwaj have not been explained. It appears that the fight took place in between both sides, when Raj Kumar appellant was asked to stop the construction over the land in dispute otherwise the passage would be closed. The recovery of rifle was shown from the house of Pheram. The empty cartridge was not found in the rifle but the recovery of empty cartridge was shown from the pocket. The incident took place on 17.3.2003 and for three days the empty cartridge was kept in the pocket. Apart from that there is no independent public witness of recovery or arrest. No cartridge or tickli were found at the place of incident and except the appellant Manoj, the arrest of all the appellants was shown on 19.3.2003. The arrest of Manoj was shown on 21.3.2003. The allegation from side of the appellants was that their complaint was not written and they were taken into custody. The defence case is that except the appellant Manoj others were taken into custody on the same day.
The arrest of Manoj was shown on 21.3.2003. The allegation from side of the appellants was that their complaint was not written and they were taken into custody. The defence case is that except the appellant Manoj others were taken into custody on the same day. The arrest was shown on 19.3.2003. According to PW-3 Hanuman Prasad except the accused appellant Manoj all eight accused were taken into custody by the police in the evening on the same day. The case of the accused appellants is that the injuries were caused in self defence, when they started assaulting Ram Balak, Murat Dwaj and Makra Dwaj and just to save them the appellant Pheram shot fire. The alternate argument was that even if one of the appellants shot fire, then the question would be whether all the appellants would be responsible for the fire or Pheram who shot fire from a distance would only be responsible for exceeding the right of self defence. Pheram shot fire from behind babul tree but in the present case according to prosecution case when the dispute arose while the accused Raj Kumar with aid of one labourer started construction work for raising new wall to close the passage being used by the appellants, then all others appellants reached at the place of occurrence and in the incident Shiv Pujan died due to firearm injuries when Pheram shot fire on the instigation of accused appellant Raj Kumar. Ram Murat Bindeshwari also shot fire but no injury was caused to any one. Hence so for as the death of the deceased Shiv Pujan is concerned all are equally responsible for the cause of death in furtherance of common object. In view of the evidence the incident took place in which three persons from side of the appellants also received injuries after quarrel started in between Raj Kumar and Shiv Pujan. Subsequently the other accused appellants and the person from the complainant side reached at the place of occurrence. Hence there was no pre plan for committing the offence when the fight took place in between the two parties, then on the instigation of one of the appellants Pheram shot fire from his rifle causing injuries to the deceased Shiv Pujan who succumbed to injuries, hence in view of the fact all the appellants are guilty of committing the offence causing injuries and causing death of Shiv Pujan.
"Section 300 of Indian Penal Code" 300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-- (Secondly) --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-- (Thirdly) --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-- (Fourthly) --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. (First) --That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. (Secondly) --That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. (Thirdly) --That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. According to exception i) the culpable homicide is not murder, if the offender caused death of the person who gave provocation while deprived of the power of self control due to grave and sudden provocation. According to exception 4) culpable homicide is not murder if it is committed without pre meditation in sudden fight in the heat of passion upon a sudden quarrel and when offender having taken undue advantage and acted in a criminal or unusual manner and as per explanation in such cases it is not a material which party offers provocation or committed first assault. Hence in view of the aforesaid facts of the present case, the accused appellants are guilty under section 304 I.P.C. Now whether they are liable to be punished under section 304 I.P.C. Part-I or Part II.
Hence in view of the aforesaid facts of the present case, the accused appellants are guilty under section 304 I.P.C. Now whether they are liable to be punished under section 304 I.P.C. Part-I or Part II. In the present case when on instigation appellant Pheram shot fire with rifle, then the appellants were aware that the injuries caused by rifle would likely to cause death and in view of the evidence of instigation and firing was with an intention of causing death or atleast of causing such bodily injuries as was likely to cause death, hence the appellants are liable to be punished under section 304(1)I.P.C. The sentence and punishment is life imprisonment or imprisonment either description for a term which may extend to 10 years and shall also be liable with fine. The maximum punishment is life imprisonment. Since the dispute took place in sudden fight, hence considering the and aggravating and mitigating circumstances it is not a case to award the maximum punishment which would be disproportionate to the offence committed by the appellants under context of circumstances of present case. In view of the facts and circumstances of the present case the period of ten years R.I. with fine will meet the end of justice, hence all the appellants are sentenced to ten years' R.I. with fine for a sum of Rs.5000/- each in default of payment of fine they shall undergo for further imprisonment of one year's R.I. The conviction and sentence under section 147 and 148 I.P.C. are maintained. All the sentences shall run concurrently. Accordingly this appeal is partly allowed. Let these appellants be taken into custody forthwith to serve out the remaining period of sentence who are on bail. Let a copy of this order be sent to the court concerned for compliance of the order. ———————