Madhya Pradesh High Court
Chhohe Lal @ Chhotelal vs The State Of Madhya Pradesh on 9 July, 2018
Author: S.K.Gangele
Bench: S.K.Gangele, Akhil Kumar Srivastava
1 Cr.A.No.2424/2008
THE HIGH COURT OF MADHYA PRADESH:JABALPUR
Criminal Appeal No.2424/2008
Chhohe Lal @ Chhotelal
vs.
State of M.P.
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None for the appellant.
Smt.Sushila Paliwal, Advocate as amicus curiae.
Shri Aditya Jain, learned Dy.Govt. Advocate for respondent-State.
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Division Bench:
Hon'ble Shri Justice S.K.Gangele.
Hon'ble Shri Justice Akhil Kumar Srivastava.
Whether approved for reporting: Yes/No
Law laid down:
Significant paragraphs:
JUDGMENT
09.07.2018 Per S.K.Gangele, J.
This appeal has been filed against judgment dated 23.09.2008 passed in Sessions Trial No.72/2008 by Sessions Judge, Shahdol convicting the appellant under Section 302 of IPC and Section 25(1)
(b)(a) and 27 of the Arms Act and sentenced as under :
Conviction Sentence Under Section 302 of IPC Life imprisonment and fine of Rs.1000/-, in default RI for 6 months.
Under Section 25(1)(b)(a) RI for 1 years and fine of Rs.500/-, in of Arms Act default RI for 3 months.
Under Section 27 of Arms RI for 3 years and fine of Rs.500/-, in Act default RI for 6 months.
(All the sentences to run concurrently).
2 Cr.A.No.2424/20082. The prosecution story, in brief, is that the appellant had suspicion that the deceased had illicit relationship with his niece (Bhanji). When the deceased came to the house of the appellant, the appellant caused gun shot injury to the deceased due to which he died. The report of the incident was lodged; merg was registered; police conducted the investigation and filed the charge-sheet. The appellant abjured his guilt during the trial, however, the trial court held the appellant guilty for commission of offence punishable under Section 302 of IPC and Sections 25(1)(b)(a) and 27 of the Arms Act and sentenced as mentioned in the impugned judgment.
3. Learned counsel for the appellant submitted that the evidence of eye-witnesses is not reliable. There are contradictions and omissions in their evidence. It is further submitted by the counsel for the appellant that the seizure of the gun has not been proved. In the alternate, learned counsel for the appellant has submitted that the prosecution case is that the deceased had illicit relationship with the niece (Bhanji) of the appellant and he was present in the house and as per evidence of the Doctor PW-13 Dr.V.P.Patel, who performed post mortem of the deceased, there were signs of sexual intercourse on the person of the deceased, hence, it may be possible that the appellant had seen the deceased during some unnatural act and in that event, he had fired gun shot on the deceased, hence, the offence, as alleged, against the appellant would fall under Section 304 Part-I of IPC.
4. On the other hand, learned counsel for the State has submitted that there is name of the appellant in the FIR. That apart, there are eye-witnesses to the incident. Ocular evidence are found supported with the medical evidence, hence, the trial Court has rightly convicted the appellant.
3 Cr.A.No.2424/20085. PW-2-Bharat and PW-3-Ramu are eye-witnesses.
6. PW-2-Bharat deposed that I was sleeping in my house and at that time Mahendra Kol informed my Nephew-Ramu that Chhotelal was saying to the deceased that he will fire gun shot. Ramu awake me and thereafter, I ran outside. The house of the appellant is in front of my house. Ramu also ran with me. When I reached the house of the appellant, he fired at the deceased and ran away from the place. The deceased had received injury on his stomach and fell down. Thereafter, I told the incident to my family and my mother went to the house of the Sarpanch and had told the incident to other villagers also. Sarpanch came there. When I asked Chhotelal that why he has killed the deceased, then he told me that the deceased was hurling filthy words thereafter I had fired at the deceased. I lodged the report at the police station, thereafter, merg intimation (Ex.P-6) and FIR (Ex.P-7) was registered. I signed all the documents. Wife of Chhotelal had told that niece of appellant namely Chanda had illicit relationship with the deceased, that is why the appellant has killed the deceased. He further admitted in paragraph-20 of his cross- examination that after half an hour of the incident the appellant came on the spot with a gun. I snatched the gun and gave it to the police.
7. PW-3-Ramu who is another eye-witness deposed that when Mahendra Kol came to him in the night he told to him that the appellant has inflicted gun shot injury to the deceased. Thereafter, I ran away and told the said fact to Bharat. He went at the place of incident and I witnessed that the appellant had fired at the deceased. The deceased fell down. There was injury on his stomach. Thereafter, appellant ran away from the place.
8. Witnesses-PW-1, PW-5, PW-6 and PW-7 have turned hostile.
4 Cr.A.No.2424/20089. PW-13-Dr.V.P.Patel, who performed the post mortem of the deceased deposed that I noticed following injuries on the person of the deceased.
**ijh{k.k djus ij eSaus ik;k fd 'ko fpRr voLFkk esa ysVk gqvk Fkk] mlds 'kjhj ij yky fizaVsM LosVj] dkyh 'kVZ o lQsn cfu;ku] lQsn Qqy isaV vkSj yky vaMjfo;j Fkk] tks igus gqvk Fkk vkSj ;s lHkh diM+s [kwu ls yFkiFk Fks] iwjs 'kjhj esa jkbxj eksfVo mifLFkr Fkk] mlds isV ds ckabZ rjQ yacj fjtu 8 baVh cw.M ¼?kko½ FksA ,d ?kko dh lkbt 2 ls-eh- O;kl Fkk nwljh ?kko dh lkbt 1-00 ls-eh- O;kl Fkk rFkk ckdh Ng ?kkoksa ds vkdkj vk/ks ls-eh- O;kl ds FksA ;s lHkh ?kko 8x7 ls-eh- ds ,sfj;k esa FksA nks fLyM tSls QVs gq, ?kko mlds isV ds nkfgus rjQ dqN ihNs Hkkx esa ekStwn FksA ,d dh yackbZ 2 lseh vkSj nwljhs ?kko dh yackbZ Ms<+ ls-eh- FkhA e`rd ds LosVj ds uhps blh rjQ Ms<+ ls-eh- ,oa ,d ls-eh- O;kl ds nks NjsZ ekStwn FksA baVªh cw.M vkSj ,fXtV cw.M ds chp dh nwjh 26 ls-eh- FkhA 'kjhj esa ik;s x;s baV ªh cw.M ds tSls Nsn mlds diM+ksa esa Hkh FksA lkFk gh mlds cfu;ku ,oa 'kVZ esa ,fXtV gkWy ik;s x;sA tgkWa ij 'kjhj esa fNnz ik;s x;s mlh dh lh/kku esa diM+ksa esa Hkh Nsn ik;s x;sA baVªh cw.M~l ds ekftZu ,cszMsM vkSj dkys jax ds FksA** He further deposed that I noticed sperm on the penis and skin of the deceased. In paragraph-9 of his cross-examination he admitted that I noticed signs of sexual intercourse on the body of the deceased before his death.
10. In FIR (Ex.P-7) which was lodged by PW-2 it is mentioned that the appellant had fired gun shot at the deceased.
11. PW-8-Sunder Lal Manjhi (A.S.I) deposed that I investigated the place and prepared the spot map which is Exhibit P-8. I also seized plain soil and blood stained soil from the spot vide seizure memo Exhibit P-13 and recorded the statement of Bharat (PW-2). Thereafter, I recorded the statement of other witnesses. I also recorded statement of Chanda Kol. Appellant was arrested. On his memorandum, a country made 'Bharmar gun' was seized vide seizure memo Exhibit P/12.
5 Cr.A.No.2424/200812. PW-2 and PW-3 are the eye-witnesses of the incident. They are the neighbours. They have specifically deposed that the appellant had fired at the deceased by gun which was seized from the possession of the appellant.
13. PW-13, the Doctor who performed the post mortem of the deceased verified the fact that the deceased received a number of pellet injuries which were fired through a Bharmar Gun, hence, from the aforesaid evidence it has been proved beyond reasonable doubt that the appellant had killed the deceased.
14. Now, the next question is that whether the offence committed by the appellant would fall under Section 304 Part-I of IPC or whether there was sudden provocation ?
15. The Apex Court in the case of B.D.Khunte vs. Union of India (2015) 1 SCC 286 has held with regard to Section 300 IPC as under :
"12. What is critical for a case to fall under Exception 1 to Section 300 IPC is that the provocation must not only be grave but sudden as well. It is only where the following ingredients of Exception 1 are satisfied that an accused can claim mitigation of the offence committed by him from murder to culpable homicide not amounting to murder:
(1) The deceased must have given provocation to the accused.
(2) The provocation so given must have been grave.
(3) The provocation given by the deceased must have been sudden.
(4) The offender by reason of such grave and sudden provocation must have been deprived of his power of self-control; and (5) The offender must have killed the deceased or any other person by mistake or accident during the continuance of the deprivation of the power of self-control.
...
...
6 Cr.A.No.2424/200815. It was contended by Mr. Sisodia that although between the incident that happened at noon and the shooting of the deceased at 2130 hrs. were separated by nearly seven hours interval, the nature of the provocation continued to be grave within the meaning of Exception 1 to Section 300 IPC. We find it difficult to accept that submission. Grave provocation within the meaning of Exception 1 is a provocation where judgment and reason take leave of the offender and violent passion takes over.
Provocation has been defined by Oxford Dictionary, as an action, insult, etc. that is likely to provoke physical retaliation. The term grave only adds an element of virulent intensity to what is otherwise likely to provoke retaliation."
16. In the present case, it is admitted fact that the deceased had entered into the house of the appellant in the night around 10:00 O' Clock because the incident had taken place at that time. PW-2 in paragraph-6 of his deposition has deposed that the wife of the appellant told him that the deceased had illicit relationship with niece of the appellant, due to this reason, the appellant had killed the deceased.
17. PW-3 also in paragraph-13 of his cross-examination has admitted the fact that on the date of incident, Chanda-niece of the appellant was at his house. She was living separately in another Mohalla alongwith her Mama. The wife of the appellant called her which proves the fact that on the date of incident the niece of the appellant was in the house of the appellant.
18. PW-13 proved the fact that he noticed sperm on the penis and skin of the deceased. In Paragraph-9 of his cross-examination, he further admitted that he noticed signs of sexual intercourse on the body of the deceased before the death. This evidence proves the fact that the deceased had sexual intercourse before his death.
7 Cr.A.No.2424/200819. From these circumstances and the prosecution evidence it appears that the deceased had sexual intercourse with the niece of the appellant and in that event the appellant had fired gun shot on the deceased. There is no evidence of cooling off period. It appears that both the acts had happened simultaneously. In such circumstances, in our opinion, there was sudden provocation of the appellant due to act of the deceased and under that provocation the appellant had killed the deceased, hence, the act of the appellant would fall under Section 304 Part-I of IPC.
20. PW-10-Radhika Prasad Verma (Arms Clerk) deposed that there was no sanction in favour of the appellant in respect of the seized arm, hence, in our opinion, the trial Court has rightly convicted the appellant under Sections 25(1)(b)(a) and 27 of Arms Act and awarded proper sentence.
21. On the basis of the aforesaid discussion, the appeal filed by the appellant is partly allowed. The appellant is in jail since 21.12.2007. As per judgment of the trial Court the appellant has completed more than 10 years of jail sentence including the period of remission. His conviction under Sections 25(1)(b)(a) and 27 of the Arms Act as well as fine amount of Rs.2,000/- is upheld. However, the conviction of the appellant under Section 302 of IPC is altered into Section 304 Part I of IPC, he is convicted accordingly and awarded sentence of already undergone, which is more than 10 years including remission. It is ordered that the appellant be released forthwith, if he is not required in any other case.
Appeal partly allowed.
(S.K.Gangele) (Akhil Kumar Srivastava)
Judge Judge
anand
Digitally signed by
ANAND KRISHNA SEN
Date: 2018.07.11
10:58:27 +05'30'