Madhya Pradesh High Court
Pawan Shukla vs The State Of Madhya Pradesh on 14 February, 2012
Author: Rakesh Saksena
Bench: M.A. Siddiqui, Rakesh Saksena
AFR
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH
Criminal Appeal No.671/2007
Pawan Shukla, s/o Shri Lallu Prasad
Shukla, aged about 43 years, r/o village
Bhuiyarani Purwa, P.S. Prakash Bamhori,
district Chhatarpur (M.P.).
Versus
The State of M.P., through P.S. Prakash
Bamhori, Distt. Chhatarpur (M.P.).
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For the Appellant: Shri Sharad Verma, Advocate.
For the Respondent: Smt. Nirmala Nayak, Government Advocate.
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PRESENT: HONOURABLE SHRI JUSTICE RAKESH SAKSENA
HONOURABLE SHRI JUSTICE M.A. SIDDIQUI
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Date of hearing: 02/02/2012
Date of Judgment: 14/02/2012
JUDGMENT
Per: 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 the Indian Penal Code and Sentencing him to imprisonment for life with fine of Rs.1,000/-. In default of payment of fine, further rigorous imprisonment for six months.
2. In short, the prosecution case is that Ram Prasad, the deceased, had taken a field 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 the filed 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 accused was also adjoining. Accused and his father Lallu Shukla were present on their field. At about 2.00 pm, when a cow of accused started grazing in the field of Ram Prasad, his daughter Sumitra drove her out towards the field of accused. Accused reached there with his rifle and remonstrated with Sumitra and manhandled her by catching her hair. On hearing cries of Sumitra, Ram Prasad and other persons reached there and tried to save her. It is alleged that accused assaulted them with butt of his gun. When Ram Prasad grappled with accused, accused fired his rifle at him, which hit him in his abdomen. As a result of gun shot injury, Ram Prasad fell down and died. Accused ran away. Ganga Sagar (PW-4), the son of deceased, and other persons carried the body of Ram Prasad to Police Station, Prakash Bamhori and lodged first information report (Ex.P/1) on the same day at 4.50 pm.
3. Investigating Officer Arvind Singh (PW-16) reached at the spot, conducted inquest proceedings and prepared inquest memo (Ex.P/12) in presence of Lalu Kushwaha (PW-10) and Tulli (PW-15). He seized the blood stained earth and broken butt of gun from the spot and prepared seizure memo (Ex.P/2). He also drew the spot map (Ex.P/11). Dead body of deceased Ram Prasad was sent to Primary Health Centre, Laundi for postmortem examination.
4. On 24.3.2003, Dr. S.S. Chaurasiya (PW-8) conducted postmortem examination of the 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 his postmortem examination report Ex.P/9.
5. On 30.3.2003, accused was arrested and on his information a rifle was seized from the verandah of his house. Seized articles were sent to Forensic Science Laboratory for examination. After investigation, charge sheet was filed and the case 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.P.C., Pancha and some other labourers used to steal away the reaped crops from his field. When his father viz. Lallu Shukla made a complaint to family members of deceased, they pretended that the crop was grazed by cow. On the day of occurrence, when Sumitra drove the cow towards 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 he tried to save him, Bachcha (PW-1) assaulted him with Lathi. He warded of the blow with his gun, as a result of which his gun broke down and he heard a sound of fire. According to him, a false case was concocted against him.
7. Prosecution, to substantiate its case, examined 16 witnesses. Bachcha Kushwaha (PW-1), Usha (PW-2), Sumitra (PW-3), Ganga Sagar (PW-4), Ram Kishore (PW-11) and Pancha (PW-13) were examined as eyewitnesses of the occurrence. Out of aforesaid witnesses, Ganga Sagar, Ram Kishore and Pancha did not support the prosecution case. Dr. S.S. Chaurasiya (PW-8) was examined to prove the injury found on the body of deceased. In defence, accused also examined Dr.S.Prajapati (DW-1) and Loknath Rajput (DW-2). Trial court, after appreciation of evidence and upon trial, concluded that accused fired gun shot at deceased as a result of which he died and convicted 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 not agitate 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 have been fired by accused, he could not have been held liable for the charge under Section 302 of the Indian Penal Code. He submitted that from the evidence of eyewitnesses it was apparent that the incident occurred suddenly after an altercation between accused and Sumitra, when deceased grappled with him. He further submitted that it was also on record that the father of accused suffered injury at the hands of members of the complainant party in the same incident. Therefore, at the most, accused could have been held liable for the offence under Section 304-II of the Indian Penal Code. On the other hand, Smt. Nirmala Nayak, learned Government Advocate, submitted that it was established beyond doubt that accused fired gun shot in the abdomen of deceased. When the gun was fired on the deceased from a close range, it stood established that the intention of the accused was to commit murder of the deceased. She justified the impugned judgment 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 his death was homicidal in nature. The first information report of the occurrence was lodged by Ganga Sagar (PW-4) stating that accused fired gun shot at deceased. Bachcha (PW-1), Usha (PW-2) and Sumitra (PW-3) also made similar statements before the court. Investigating Officer Arvind Singh (PW-16) reached the spot and conducted inquest proceedings in presence of Lalu Kushwaha (PW-10) and Tulli (PW-15). They found that deceased Ram Prasad died due to gun shot injury. Inquest memorandum (Ex.P/12) was prepared by Arvind Singh (PW-16). The postmortem examination of the body of deceased was done by Dr.S.S.Chaurasiya (PW-8). Dr. Chaurasiya found following injury on the body of deceased:
"(1) A firearm wound of entrance on abdomen below the umbilicus more on right side. 2.5 x 2.5 cm circular.
Greasy black margin blackening and tattooing present in 6 x 6 cm radius. Gun powder blackish also present in 10 cm radius. Intestine protruding out from from the wound.
Wound of exit present just above the iliac crest on right side. Ragged irregular everted margins 3 x 3 cm. Blood trickling from the wound of exit.
In the 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 due to 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 (PW-1), the son of deceased, stated that his father had taken 1½ 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 pm, a cow of accused started grazing the reaped crops. Sumitra 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 at Ram Prasad. Bullet hit Ram Prasad in his abdomen and he fell down dead. In cross-examination, this witness admitted that Lallu Shukla, the father of accused, was also grazing cows at nearby 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 know whether he lodged any report or not. Though he denied that deceased grappled with accused, but he was confronted with his police statement (Ex.D/
1) wherein he mentioned that his father grappled with accused. Certain other contradictions were pointed out by the learned counsel for the appellant in the statement of this witness, but they were not material by nature. The evidence of Bachcha (PW-1) finds support from the evidence of Usha (PW-2) and Sumitra (PW-3), who also reiterated the same story and categorically stated that when they were reaping crops, after an altercation between Sumitra and deceased on one side and accused on the other, accused fired gun shot, which hit deceased in his abdomen. The presence of these witnesses is natural. Though they are close relatives of deceased, but, looking to their consistency and simplicity, they appear to be truthful witnesses. Ganga Sagar (PW-4), another son of deceased, was though declared hostile, but, in cross- examination by the prosecutor, he repeated the same story saying that after an altercation and scuffle between deceased and the accused, accused fired his rifle at his father Ram Prasad, which resulted in his death. When this witness was subjected to cross-examination by accused, he admitted that there occurred a quarrel over a dispute about grazing of the crops by the cow. He even admitted that Lallu, the father of accused, had suffered an injury by spear and further that accused had also suffered injuries by Lathi. Evidence of this witness finds corroboration from the first information report (Ex.P/1) lodged by him immediately after the occurrence. The evidence of aforesaid eyewitnesses stands further corroborated from the medical evidence of Dr. S.S.Chaurasiya (PW-8), who found gun shot injury in the abdomen of deceased.
12. After a critical analysis of the evidence of aforesaid prosecution witnesses, we find 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, as adduced by the prosecution, is accepted, the circumstances which emerge out indicate that accused had no intention to commit murder of deceased. The incident was sudden and it occurred just on the spur of moment without any premeditation when a sudden altercation took place between Sumitra and the accused, when she drove out the cow of accused. He also referred to the evidence of Dr.S.Prajapati (DW-1), who stated that on 30.3.2003 he examined 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 penetrating and a contusion injury on the right arm of Lallu. These injuries were simple in nature and were caused within 7-8 days before the examination by him. Their injury reports are Ex.D/6-A and Ex.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 occurred suddenly when Sumitra (PW-3) drove out a cow of the accused from her field and accused manhandled her. It is apparent that deceased came suddenly and indulged in grappling with accused, who had a gun. Though it has not been admitted by Bachcha (PW-1), Usha (PW02) and Sumitra (PW-3) that anyone from the side of deceased assaulted accused or his father, but it was indicated by Ganga Sagar (PW-4) that accused and Lallu were assaulted. It was also evident from the evidence of Investigating Officer Arvind Singh (PW-16) that when he went at the spot, he found there a broken butt of gun, which he seized vide memorandum (Ex.P/2). The evidence of Dr. S.Prajapati (DW-1) supports version of defence that accused and his father suffered some injuries at the time of incident. It is also to be noted that there was no enmity between the two parties since before. The field, which was being cultivated by the deceased and his family members, belonged to accused and it was he who had given them the said field for that purpose on Batai. These facts unmistakably indicate that there could have been no intention on the part of appellant to commit murder of the deceased. In the above circumstances, the probability that in a sudden altercation and quarrel accused fired a single gun shot at deceased, as a result of which he died could not be ruled out. In the similar circumstances, the Apex Court in cases of Surendra Singh @ Bittu v. State of Uttaranchal-AIR 2006 SC 1920 and Pappu @ Hari Om v. State of Madhya Pradesh-(2009) 11 SC 472 held that the case of accused persons fell under Fourth Exception to Section 300 of the Indian Penal Code and they were liable to be convicted under Section 304- II of the Indian Penal Code and not under Section 302 of the Indian Penal Code and their conviction was modified to under Section 304-II of the Indian Penal Code.
15. For the reasons aforesaid, we find that the conviction of appellant under Section 302 of the Indian Penal Code was not justified, as such, we modify his conviction to under Section 304-II of the Indian Penal Code and sentence him to rigorous imprisonment for seven years and also direct him to pay a fine of Rs.2000/-. In default of payment of fine, he shall undergo further rigorous imprisonment for six months.
16. Appeal partly allowed.
(RAKESH SAKSENA) (M.A. SIDDIQUI)
JUDGE JUDGE
shukla
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Appeal No.671/2007
Pawan Shukla
Versus
The State of Madhya Pradesh
JUDGMENT
For consideration
(Rakesh Saksena)
JUDGE
__/02/2012
Hon'ble Shri Justice M.A. Siddiqui
JUDGE
__/02/2012
POST FOR /02/2012
(Rakesh Saksena)
Judge
___/02/2012