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2019 DIGILAW 8 (RAJ)

Shambhu Singh v. State of Rajasthan

2019-01-02

BANWARI LAL SHARMA, MUNISHWAR NATH BHANDARI

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JUDGMENT : MUNISHWAR NATH BHANDARI, J. By this appeal, a challenge is made to the order dated 31st March, 2015 passed by the Additional Session Judge No. 2, Kota in Session Case No. 26/2013. 2. The accused-appellant has been convicted for the offence under Section 302 IPC. He has been sentenced for life imprisonment with fine of Rs. 50,000/- and in case of default in payment of fine, to further undergo six months’ simple imprisonment. Out of fine of Rs. 50,000/-, Rs. 30,000/- is ordered to be given to the dependents of the deceased by invoking Section 357 Cr.P.C. Brief facts of the case are as under 3. The complainant - Mahendra Singh gave a written report to the police on 16th October, 2010 to the effect that the accused Shambhu Singh came at the residence of the deceased Bhawani Singh and, thereupon, they both went together to the residence of the accused Shambhu Singh. He followed them. The accused Shambhu Singh pointed a licensed gun on Bhawani Singh while he was sitting on a Sofa. One Gopal Singh caught hold of the hand of the deceased. The accused opened fire where Bhawani Singh died. 4. On the basis of written report, FIR No. 55/2010 was registered for the offence under Section 302 IPC. After the investigation, charge sheet was filed for the said offence. The trial Court thereafter framed charges for the offence under Section 302 IPC. The charges were explained to the accused and when it was denied, trial commenced. The prosecution produced twenty two witnesses apart from thirty six documents to prove their case. The statement of accused Shambhu Singh was recorded under Section 313 Cr.P.C. In defence, the accused examined himself apart from one witness and produced ten documents. After marshalling the evidence, produced by both the parties, the trial Court convicted the accused-appellant for the offence under Section 302 IPC and sentenced him, as described earlier. Arguments of learned counsel for the accused-appellant :— 5. Learned counsel for the accused-appellant submits that the FIR was lodged with an afterthought and therein, the complainant planted himself to become an eye-witness to the occurrence. The presence of the complainant at the place of occurrence is doubtful and otherwise, description of incident has been given by the accused in his defence but ignored by the trial Court. 6. Learned counsel for the accused-appellant submits that the FIR was lodged with an afterthought and therein, the complainant planted himself to become an eye-witness to the occurrence. The presence of the complainant at the place of occurrence is doubtful and otherwise, description of incident has been given by the accused in his defence but ignored by the trial Court. 6. It is also stated that the incident took place at around 12.45 AM on 16th October, 2010, which was otherwise the night of 15th and 16th October, 2010. The FIR was lodged with delay and, therefore only, it was sent to the Court on 18th October, 2010, though, time of the FIR has been shown to be at 2.00 AM of 16th October, 2010. The trial Court ignored the aforesaid aspect also, though, after registration of FIR, it should have been sent to the Court immediately. 7. Coming to the facts of the case, it is stated that the deceased demanded liquor from the accused. Since it was at the odd hours of 12.00 in the night, the accused refused to arrange for the liquor. The deceased followed him and entered into the house of the accused. He took the gun to open fire on the accused and at that moment, the accused turned the gun towards the deceased and in that event, trigger was pulled by the deceased, thereby, he sustained firearm injury on left side of the head. The injury mark was going upwards and it can happen when the incident takes place, as described by the accused in his defence. The aforesaid aspect has also been ignored by the trial Court while convicting the accused for the offence under Section 302 IPC. 8. The trial Court even ignored the medical report and statements of the doctors. It is not only to prove that the deceased was under the influence of liquor but injury mark was going upwards and it cannot happen in a case, as described by the complainant. The distance of fire also supports the defence taken by the accused, thereby, he should be acquitted from the offence. 9. Learned counsel for the accused-appellant has made a reference of the statement of PW - 15 Mahendra Singh to support his arguments. The distance of fire also supports the defence taken by the accused, thereby, he should be acquitted from the offence. 9. Learned counsel for the accused-appellant has made a reference of the statement of PW - 15 Mahendra Singh to support his arguments. It is stated that availability of the weapon is natural because the appellant was working in Home Guard and was otherwise having license of the arm. On the festival of “Dussehra”, it was brought out for “Shastra Pooja”. The gun was taken by the deceased under the influence of liquor and pointed on the accused. The incident took place thereupon in the manner, as described in the statement under Section 313 Cr.P.C. 10. Learned counsel has even made a reference of Exhibit P - 30 (arrest memo), which shows that even the accused-appellant received many injuries. It is otherwise proved by Exhibit D - 6 (medical report). Those injuries came in the scuffle between the accused and deceased and in that moment, fire was opened. In view of the above, the prayer is to set aside the order of conviction and sentence of the appellant for the offence under Section 302 IPC and he may accordingly be acquitted of the offence. 11. Learned Public Prosecutor has contested the appeal. It is submitted that the complainant Mahendra Singh had made a written report to the police and based on it, the FIR was registered. In the investigation, a case was found against the accused for the offence under Section 302 IPC. It is not only that fire was opened from a licensed arm of the accused-appellant but it was at his residence. The firearm was loaded. The place of occurrence is residence of the accused himself where he initially called the deceased for liquor. He was asked to sit on “Sofa” and, thereupon, pointed gun on the deceased. Gopal Singh caught hold of the deceased and at that stage, fire was opened. The deceased died out of firearm injury as per the postmortem report, duly supported by the statement of doctor. 12. The defence taken by the accused-appellant in his statement under Section 313 Cr.P.C. is not probable. The firearm was not a pistol but a twelve bore gun and the way, occurrence has been projected in the defence, is not possible. The deceased died out of firearm injury as per the postmortem report, duly supported by the statement of doctor. 12. The defence taken by the accused-appellant in his statement under Section 313 Cr.P.C. is not probable. The firearm was not a pistol but a twelve bore gun and the way, occurrence has been projected in the defence, is not possible. If the deceased was having gun in his hand and was turned back towards him then looking to the length of the gun, could not have been fired by him. The trial Court has thus rightly discarded the evidence led by the accused-appellant while believing the evidence produced by the prosecution. Even if the defence is taken into consideration, the use of licensed firearm is admitted and death is out of firearm injury. The only fact remains as to whether the incident took place in the manner described by the accused- appellant or as it has been given in the FIR. 13. Learned Public Prosecutor has given reference of the statements of witnesses to show that the prosecution could prove its case beyond doubt, thus the accused-appellant has rightly been convicted and sentenced for the offence under Section 302 IPC. The prayer is accordingly to dismiss the appeal while maintaining the conviction and sentence of the accused-appellant for the offence under Section 302 IPC. 14. We have considered rival submissions made by learned counsel for the parties and scanned the record carefully. 15. An FIR was registered on a written report given by the complainant Mahendra Singh. After the investigation, charge sheet was filed against the accused Shambhu Singh for the offence under Section 302 IPC. After framing charges, trial commenced. 16. PW - 15 Mahendra Singh was examined by the prosecution and he has supported the case, as given in the FIR. It was stated that on 16th October, 2010 at around 12.30 AM, Shambhu Singh came and knocked the door. The deceased Bhawani Singh opened the door and, thereafter, they had some conversation. The deceased Bhawani Singh went along with Shambhu Singh to his residence. He followed them and, thereafter, incident took place in the manner described in the written report. Ranjit Singh and Man Singh came on the spot, as they were standing nearby. The deceased Bhawani Singh opened the door and, thereafter, they had some conversation. The deceased Bhawani Singh went along with Shambhu Singh to his residence. He followed them and, thereafter, incident took place in the manner described in the written report. Ranjit Singh and Man Singh came on the spot, as they were standing nearby. The accused Shambhu Singh pointed his licensed gun on the deceased Bhawani Singh, who was sitting on a “Sofa” and immediately thereafter, he opened fire. The pellets were found in the postmortem report and otherwise, there is no dispute about firearm injury out of licensed gun of the accused. In the cross-examination, his statement could not be demolished, though, according to learned counsel for the accused-appellant, the story given by the complainant Mahendra Singh is not probable. It is mainly on the ground that he was not present at the time of occurrence otherwise the FIR would not have been sent to the Court with the delay of two days. 17. We have considered the aforesaid aspect. The incident took place in the night of 15th October and 16th October, 2010. The Courts were closed between 15th October and 17th October, 2010 due to Dussehra holidays. The FIR was sent to the Court on the first available date, i.e., 18th October, 2010. The record shows that the accused was arrested on the day of occurrence itself and produced before the Magistrate on 17th October, 2010. The Court is otherwise required to take out the truth and accordingly, we have to analyse the case set out by the prosecution as well as the defence. We would even consider the statement of the accused under Section 313 Cr.P.C. 18. The accused examined himself as DW - 1 apart from producing one more witness in defence. The documents have also been produced in defence and for that, the crucial document is Exhibit D - 6, medical report of the accused. If the controversy is narrowed down, the use of licensed firearm is not in dispute apart from death of the deceased out of firearm injury. Even, the place of the occurrence is not in dispute because even as per the accused also, the place of occurrence is his residence. According to the accused, gun was taken by the deceased and it was pointed on the accused, whereas, a reverse story has been given by the prosecution. 19. Even, the place of the occurrence is not in dispute because even as per the accused also, the place of occurrence is his residence. According to the accused, gun was taken by the deceased and it was pointed on the accused, whereas, a reverse story has been given by the prosecution. 19. We have to take out the truth to find the way occurrence has taken place. A gun, if turned back then fire cannot be opened by the person holding it by keeping finger on the trigger. It is looking to the length of the gun. The story taken in defence cannot thus be accepted. If the prosecution case is taken the gun was in the hand of the accused and it was fired from close distance. The said story is corroborated by the evidence, thus needs to be accepted. In view of the above, we find that the incident has taken place where the fire was opened by the accused, though, presence of the complainant Mahendra Singh is doubtful at the time of occurrence. 20. If the prosecution case with defence is taken then the incident goes in the following manner: The accused Shambhu Singh came to his residence after completion of duties. After taking a nap, he had taken his dinner. He came out of the house thereupon. His motor-cycle was hit by the deceased under the influence of liquor. The deceased had consumed liquor is proved by the medical report and even by the postmortem report (Exhibit P - 12). The deceased was demanding liquor, thus followed the accused and went inside his house. There was a scuffle between them where the accused received simple injury and under provocation, the accused used his licensed gun. The deceased died out of it. To analyse the aforesaid, we have to make reference of the statements of the witnesses as well as the documents exhibited by the prosecution and in the defence. The postmortem report (Exhibit P - 12) proves death of the deceased out of firearm injury and the same is corroborated by PW - 12 Dr. Vishwdeepak, produced by the prosecution. The injury was going upwards and as per the statement of PW - 12 Dr. Vishwdeepak, fire was made from close distance. The cartridge and weapon were seized by the prosecution and were sent to the Armourer vide Exhibit P - 2. Vishwdeepak, produced by the prosecution. The injury was going upwards and as per the statement of PW - 12 Dr. Vishwdeepak, fire was made from close distance. The cartridge and weapon were seized by the prosecution and were sent to the Armourer vide Exhibit P - 2. The FSL report and armourer report have proved use of firearm. The original license of the gun in the name of the accused Shambhu Singh was also recovered. The recovery of arm is on disclosure of the accused Shambhu Singh under Section 27 of the Indian Evidence Act, 1872 (for short “the Act of 1872”). It is vide Exhibit P - 31. The license was recovered vide Exhibit P - 32 on disclosure of the accused under Section 27 of the Act of 1872. The prosecution even produced Malkhana Register as Exhibit P - 28 to show entry of the articles so recovered. The cartridge was also recovered vide Exhibit P - 11. In view of the above, the prosecution has produced the evidence to prove their case. It is not only that the arm used in the incident was licensed gun in the name of the accused Shambhu Singh but its recovery at the disclosure of the accused. The postmortem report (Exhibit P - 12) shows pellets in the body and injury was sustained on left side of the head of the deceased. Since, it was twelve bore gun, thus twenty or more pellets were recovered. The aforesaid is proved by PW - 12 Dr. Vishwdeepak. 21. Learned counsel for the accused-appellant has made a reference of the arrest memo, Exhibit P - 30 and also D - 6 (medical report) to show injury to the accused. It is to corroborate the story given in the defence. 22. We find that even the accused has received injuries but then a case of self defence could not be made out of it. If, at all, it is taken to be a case of self defence, it exceeded looking to the injury sustained by the accused. It can otherwise prove the case of the prosecution. In the incident, there was scuffle between the two where the accused received injury and under that provocation, fire was opened and is proved by the postmortem report (Exhibit P - 12). It can otherwise prove the case of the prosecution. In the incident, there was scuffle between the two where the accused received injury and under that provocation, fire was opened and is proved by the postmortem report (Exhibit P - 12). The case of the prosecution has been proved in regard to the use of firearm and death out of gunshot injury. It is proved by PW - 2 Bishan Chand. His statement has been corroborated by PW - 3 Ranjit Singh. The case of the prosecution has further been supported by other witness, which is PW - 7 Man Singh Lodha. 23. We, however, find that even if the prosecution case is taken as it is, no motive or premeditation for the occurrence has been shown. If, it is taken along with defence, the incident seems to have taken place under sudden provocation. It started from the stage of a hit to the motor-cycle belonging to the accused by the deceased. The deceased then followed the accused Shambhu Singh to his residence and under the sudden provocation, fire was opened. In absence of motive and premeditation coupled with sudden provocation, we do not find it to be a case of culpable homicide amounting to murder. The case falls in one of the exception to Section 300 IPC. 24. The trial Court failed to analyse the issue aforesaid in reference to the evidence led by the prosecution and the defence. The sudden provocation is proved by Exhibit D - 6 (medical report) and in view of the above, we are unable to approve the conviction of the accused for the offence under Section 302 IPC, rather, we substitute the aforesaid under Section 304 Part - I IPC. The order of conviction for the offence under Section 302 IPC is accordingly substituted by conviction under Section 304 Part - I IPC. 25. Since, we have caused interference in the order of conviction of the accused-appellant for the offence under Section 302 IPC, we are inclined even to substitute the sentence. The incident took place under the provocation but licensed loaded gun has been used therein, thus the accused-appellant is sentenced to ten years rigorous imprisonment with fine of Rs. 50,000/-. In case of default in payment of fine, to further undergo six months’ simple imprisonment. Out of sum of Rs. 50,000/-, Rs. The incident took place under the provocation but licensed loaded gun has been used therein, thus the accused-appellant is sentenced to ten years rigorous imprisonment with fine of Rs. 50,000/-. In case of default in payment of fine, to further undergo six months’ simple imprisonment. Out of sum of Rs. 50,000/-, Rs. 30,000/- would be given to the wife of deceased Bhawani Singh as per Section 357 Cr.P.C. With the aforesaid, the appeal is partly allowed.