Madhya Pradesh High Court
Ganga Prasad vs The State Of Madhya Pradesh on 18 October, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Anuradha Shukla
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NEUTRAL CITATION NO. 2024:MPHC-JBP:52079 Cr.A. No. 381 of 2011
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
AND
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
CRIMINAL APPEAL No. 381 OF 2011
GANGA PRASAD PRAJAPATI
Versus
STATE OF MADHYA PRADESH
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Appearance :
Shri Dinesh Kumar Upadhyay - Amicus Curiae for the appellant.
Shri Amit Pandey - Government Advocate for the
respondent/State.
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Reserved on:- 03/10/2024
Pronounced on:- 18/10/2024
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JUDGMENT
Per: Justice Sushrut Arvind Dharmadhikari The appellant has preferred instant appeal under Section 374(2) of Cr.P.C., 1973 being dissatisfied with the judgement dated 31/01/2011 passed by learned Sessions Judge, Umaria (M.P.) in S.T. No. 63/2009, whereby appellant has been found guilty for commission of offence punishable under Section 302 of the IPC and sentenced to undergo life imprisonment with fine of Rs.5,000/- and under Section 30 of the Arms Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 10/18/2024 12:20:42 PM 2 NEUTRAL CITATION NO. 2024:MPHC-JBP:52079 Cr.A. No. 381 of 2011 Act and sentenced to undergo S.I. for 3 months with default stipulation. The sentences are directed to be run concurrently.
2. The facts of the case in brief are that the appellant was in Army service and came to his village on leave for a period of one month starting from 24/12/2008. The appellant-Ganga Prasad, Ramprasad and Ganesh Prasad (deceased) were three brothers residing separately, however, the courtyard was common for all. Indisputably, there was a property dispute amongst them. On 01/01/2009, at about 9:00 p.m., when Rajkumar (PW-
11) and deceased- Ganesh Prasad returned back to their home after attending the dinner organized by one Shyamlal Prajapati, the appellant started hurling filthy language on their family members. Thereafter, they went to the appellant to prevent him from abusing, the appellant fired a gun shot upon Ganesh with his 12 bore licensee gun, due to which Ganesh sustained grievous injuries, which resulted into his death.
3. Upon the information received from Rajkumar (PW-11), police wrote dehati nalishi as Ex. P/7, thereafter registered the FIR as Crime No. 02/2009 (Ex. P/19) initially for the commission of offence punishable under Section 307 of the IPC. On account of death of deceased-Ganesh using firearm, offence under Section 302 of IPC and Section 30 of the Arms Act were added. At the instance of appellant/accused, police Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 10/18/2024 12:20:42 PM 3 NEUTRAL CITATION NO. 2024:MPHC-JBP:52079 Cr.A. No. 381 of 2011 recovered the weapon said to have been used in the offence from the house of appellant/accused. Dead body of the deceased was sent for autopsy, which was conducted by Dr. D.K. Kaudiya (P.W. 22) and the report of said is annexed as Ex. P/17. The seized articles were also sent for chemical examination and report thereof is annexed as Ex. P/28. The seized gun, pellets and empty cartridges were also sent for examination to Ballistic Expert and report thereof is annexed as Ex. P/29. After completion of investigation, charge-sheet was filed before the competent Court. The appellant/accused came to be tried for the said offence on the basis of testimony of 23 prosecution witnesses and one defence witness. After appreciating the oral as well as scientific evidence, the learned trial Court found the appellant guilty for the aforesaid offence and sentenced him accordingly. Being aggrieved with the findings recorded by the learned trial Court, appellant/accused has preferred the instant appeal.
4. The legality of the said judgement is questioned by the learned amicus curiae on the ground that the deceased himself went to the house of the appellant, where the incident took place, which shows that the appellant had no intention to cause death of the deceased, rather, the deceased was aggressor to lead the quarrel. Further, there is no evidence available on record to show that the gun, which was seized from the Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 10/18/2024 12:20:42 PM 4 NEUTRAL CITATION NO. 2024:MPHC-JBP:52079 Cr.A. No. 381 of 2011 possession of present appellant, indeed was the weapon said to have been used in the alleged offence as the Ballistic Report (Ex. P/29) has not been proved through Ballistic Expert in the Court. The Ballistic Report does not show that 23 pellets were recovered from the dead body of deceased actually fired from the weapon said to have been seized from the appellant/accused. The learned amicus curiae expressed doubt over the credibility of eye witness Urmila Bai (PW-3) pointing out the discrepancies in her statements regarding presence of other witnessess at the time of incident and she being eye witness of the incident. The FSL Report (Ex. P/28) and Ballistic Report (Ex.P/29) are not corroborating with the statement of Dr. B.K. Kaudiya (PW 22), therefore, both seem to be doubtful. In absence of any motive coupled with the fact that the alleged incident occurred in spur of a moment, at the most, offence under Section 304-II is made out. There is material contradictions and omissions in the testimony of prosecution witnesses and the trial Court erred in believing their version. The key witness of Prosecution namely Rajkumar (PW-11) who lodged the FIR has not supported the case of prosecution. The seizure of weapon said to have been used in the crime is also not proved as witness thereof namely Ramkhelawan (PW-12) and Bihari (PW-13) have turned hostile. He also submitted that the learned trial Court erred in disbelieving the defence version.
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5. Per contra, learned Government Advocate opposed the prayer by supporting the impugned judgement and has prayed for affirming the same. He has also contended that the evidence tendered by the prosecution is completely trustworthy as the prosecution witnesses have stood in the test of cross examination and as such the impugned order deserves to be affirmed. It is also submitted that the findings recorded by learned trial Court are based on proper appreciation of oral as well as scientific evidence available on record, therefore, no interference is required by this Court. Under these circumstances, learned Government Advocate has prayed for dismissal of appeal.
6. We have heard learned counsel for the parties and perused the record.
7. On perusal, the facts which have never been disputed by the defence during trial as well as before this Court are that the appellant was in army service and came to village on leave, the date of incident, mode and nature of death of deceased, the presence of accused/appellant alongwith his wife and children and at the place of incident at the relevant point of time and animosity amongst the deceased, appellant/accused and other family members.
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8. The impugned judgement shows that while convicting the appellant/accused, the learned trial Judge had given emphasis upon the statements of Urmila Bai (PW-3), Kalwatiya Bai (PW-4), and Pappi Bai (PW-9) who claimed themselves to be eye witnesses of the incident. Apart from the statements of aforesaid witnesses the learned trial Judge relied upon the scientific evidence i.e. FSL report (P/28) and Ballistic Report (P/29) corroborating the same with the statements of Dr. D.K. Kaudiya (PW-22). The learned trial Judge found that the deceased- Ganesh died of homicidal death due to Haemorrhagic Shock on account of gunshot injury caused from the 12 bore gun seized from the possession of appellant/accused.
9. While arguing the case, learned amicus curiae raised the following grounds in favour of the appellant/accused:-
(i) The statement of prosecution witnesses, particularly the statement of eye witness Urmila Bai (PW-3) suffers from material contradiction, omissions and discrepancies.
(ii) The seizure is doubtful as independent witnesses thereof, namely, Ramkhelawan (PW-12) and Bihari (PW-13) have turned hostile.
The trial Court erred in believing the testimony of investigating officer in respect of seizure.
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(iii) The Ballistic Report (Ex. P/29) does not inspire confidence on the point that the pellets and air cushion wad were recovered from the dead body of deceased and cartridge was recovered from the spot, indeed the same which were fired from the weapon said to have been recovered from appellant/accused. Further, the prosecution has failed to examine the Ballistic Expert in order to prove the Ballistic Expert Report.
(iv) Lastly, even if the case of prosecution is taken in consideration in toto, no offence more than Section 304-II is made out against the appellant/accused.
10. Now to resolve the controversy involved, it is apt to examine the evidence available on record as to whether findings given by the learned trial Court in respect of above raised grounds, are in consonance with the law or the same require interference of this Court ?
11. When this Court took note of statement of eye witness Urmila Bai (PW-3), it is found that her statement suffers from material contradictions and omissions on the point of presence of Rajkumar (PW-11) and Ramprasad (PW-20) alongwith the deceased-Ganesh at the time of incident, and therefore, the learned trial Judge disbelieved the statement of Urmila Bai (PW-3) so far as it relates to presence of Rajkumar (PW-11) and Ramprasad (PW-12) at the time of incident. Urmila Bai (PW 3) stated Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 10/18/2024 12:20:42 PM 8 NEUTRAL CITATION NO. 2024:MPHC-JBP:52079 Cr.A. No. 381 of 2011 the presence of Ramprasad (PW 20) with the deceased-Ganesh; whereas, as per prosecution case, Ramprasad (PW-20) did not accompany deceased- Ganesh at the time of incident. However, this Court finds and do agree with the findings of learned trial Court to the extent that Urmila Bai (PW-
3) remained steadfast in her cross-examination that prior to incident, the appellant was abusing and she saw the deceased going to accused's house and accused opening gun shot fire over the deceased. Further, on perusal of statement of Pappi Bai (PW-9) wife of deceased and Kalwatiya Bai (PW-4) mother of deceased, it appears that though they did not see the appellant firing the gunshot but they are unanimous on the point that the appellant was abusing and they saw the deceased Ganesh going to appellant's house and thereafter gun shot was fired. The learned amicus curiae argued that on account of material discrepancies in the statements of prosecution witnesses, more particularly, Urmila Bai (PW-3), their credibility become doubtful and to answer the said contention, we would reiterate the settled proposition of Criminal Law Jurisprudence, which says that "false in one thing, false in everything" is not applicable to criminal trial in India. Therefore, even if for the sake of arguments, it is assumed that Urmila Bai (PW-3) is not stating the correct facts about the presence of Rajkumar and Ramprasad, it cannot be presumed in law that she is lying about her being eye witness of the incident. The law states that even if there are some Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 10/18/2024 12:20:42 PM 9 NEUTRAL CITATION NO. 2024:MPHC-JBP:52079 Cr.A. No. 381 of 2011 omissions, contradictions, or discrepancies in a witness's statement, the entire evidence cannot be disregarded. The relevant parts of the statement that are admissible in law can be used by the prosecution or the defence. In the case of C. Muniappan and Others vs. State of Tamil Nadu reported in (2010) 9 SCC 567, the Hon'ble Apex Court has held as under:-
"It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. (Vide Sohrab v. State of M.P. [(1972) 3 SCC 751 : 1972 SCC (Cri) 819 : AIR 1972 SC 2020] , State of U.P. v. M.K. Anthony [(1985) 1 SCC 505 : 1985 SCC (Cri) 105] , Bharwada Bhoginbhai Hirjibhai v. State of Gujarat [(1983) 3 SCC 217 : 1983 SCC (Cri) 728 : AIR 1983 SC 753] , State of Rajasthan v. Om Prakash [(2007) 12 SCC 381 : (2008) 1 SCC (Cri) 411] , Prithu v. State of H.P. [(2009) 11 SCC 588 : (2009) 3 SCC (Cri) 1502] , State of U.P. v. Santosh Kumar [(2009) 9 SCC 626 : (2010) 1 SCC (Cri) 88] and State v. Saravanan [(2008) 17 SCC 587 : (2010) 4 SCC (Cri) 580] .)"Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 10/18/2024 12:20:42 PM 10
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12. Further, if we peruse the statement of Ramkumar Prajapati (PW-5) recorded before the trial Court that, it appears that when he reached the spot, deceased-Ganesh was lying injured on the first floor of appellant's house and he also took part in bringing the deceased down and the defence could not refute the said version of Ramkumar Prajapati. Dr. D.K. Kaudiya (PW-22), who performed the autopsy on the body of deceased stated that cause of death of deceased was Haemorrhagic Shock on account of gun shot injury. The FSL report i.e. Ex. P/28 indicates that blood was found on the soil seized from the spot i.e. house of appellant/accused, however, same was disintegrated. Therefore, corroborating the statements of Urmila Bai (PW-3), Pappi Bai (PW-9) and Kalwatiya Bai (PW-4) with the statement of Ramkumar Prajapati (PW-5), we do not have any hesitation to say that the aforesaid witnesses are reliable for their residuary part and the prosecution has successfully proved that on the date of incident, the appellant/accused was abusing prior to incident and when deceased went to him, he was shot dead.
13. Now, the question which arises before this Court is as to whether the appellant/accused caused death of deceased with his 12 bore licensee gun.
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14. On perusal of record, as noted above, the appellant was in army service and possessed one 12 bore licensee gun which was seized by Investigating Officer during investigation. The Investigating Officer also seized the license of said gun from the wife of appellant/accused. The learned amicus curiae disputed the seizure pointing out the hostility of independent witnessess of seizure namely Ramkhelawan (PW-12) and Bihari Namdeo (PW-13). On perusal of impugned judgment, it is clear that the learned trial Judge also noted about the hostility of seizure witnessess pointing out the fact that these witnesses have accepted their signatures on the seizure memo. On the basis of testimony of investigating officer S.N. Singh (PW-21), the learned trial Judge found the seizure as proved. The statement of accused recorded under Section 313 Cr.P.C shows that the appellant did not deny the possession of gun and firing from it during the incident, rather, the appellant took the plea of self defence. Learned amicus curiae argued that it would never be safe in the interest of fair trial that the testimony of police officials are accepted without corroboration thereof with the evidence given by independent witnessess so far as it relates to recovery of articles. In this regard, in the case of Mallikarjun v. State of Karnataka, reported in (2019) 8 SCC 359, the Hon'ble Supreme Court has held as under:-
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NEUTRAL CITATION NO. 2024:MPHC-JBP:52079 Cr.A. No. 381 of 2011 "23. As pointed out earlier, based on the disclosure statement of Accused 1, MO 1 dagger which was kept hidden in the haystack of fodder in the loft of the cattle shed behind the house of Accused 1 had been seized under Ext. P-9 panchnama in the presence of panch witnesses PW 8 Chandrappa and PW 9 Mahadevappa Needgera. The said panch witnesses have not supported the prosecution case and turned hostile. MO 2 dagger and MO 3 handle of the axe were recovered from the scene of occurrence under Ext. P-7 spot panchnama. On behalf of the accused, the learned Senior Counsel contended that the evidence of PW 17 PSI as to the recovery of MO 1 dagger at the behest of Accused 1 is doubtful and when PWs 8 and 9 have turned hostile, no weight could be attached to the alleged recovery of MO 1 dagger. There is no merit in the contention that merely because the panch witnesses turned hostile, the recovery of the weapon would stand vitiated. It is fairly well settled that the evidence of the investigating officer can be relied upon to prove the recovery even when the panch witnesses turned hostile. In Rameshbhai Mohanbhai Koli v. State of Gujarat [Rameshbhai Mohanbhai Koli v. State of Gujarat, (2011) 11 SCC 111 : (2011) 3 SCC (Cri) 102] , it was held as under: (SCC pp. 121-22, paras 33-35) "33. In Modan Singh v. State of Rajasthan [Modan Singh v. State of Rajasthan, (1978) 4 SCC 435 : 1979 SCC (Cri) 56] it was observed (at SCC p. 438, para 9) that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was expressed in Mohd. Aslam v. State of Maharashtra [Mohd.
Aslam v. State of Maharashtra, (2001) 9 SCC 362 : 2002 SCC (Cri) 1024] .
34. In Anter Singh v. State of Rajasthan [Anter Singh v. State of Rajasthan, (2004) 10 SCC 657 : 2005 SCC (Cri) 597] , it was further held that: (SCC p. 661, para 10) '10. ... even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated.' Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 10/18/2024 12:20:42 PM 13 NEUTRAL CITATION NO. 2024:MPHC-JBP:52079 Cr.A. No. 381 of 2011
35. This Court has held in a large number of cases that merely because the panch witnesses have turned hostile is no ground to reject the evidence if the same is based on the testimony of the investigating officer alone. In the instant case, it is not the case of defence that the testimony of the investigating officer suffers from any infirmity or doubt. (Vide Modan Singh case [Modan Singh v. State of Rajasthan, (1978) 4 SCC 435 : 1979 SCC (Cri) 56] , Krishna Gopal case [State of U.P. v. Krishna Gopal, (1988) 4 SCC 302 : 1988 SCC (Cri) 928] and Anter Singh case [Anter Singh v. State of Rajasthan, (2004) 10 SCC 657 : 2005 SCC (Cri) 597] .)" PW 17 PSI has clearly spoken about the recovery of MO 1 dagger at the behest of Accused 1 and MO 2 dagger and MO 3 handle of the axe from the scene of occurrence and his evidence cannot be discarded merely because panch witnesses have turned hostile."
15. Therefore, we say that there is no merit in the contention that merely because the independent witnesses of seizure have turned hostile, the recovery of weapon would stand vitiated. It is well settled that the evidence of the Investigating Officer can be relied upon to prove the recovery even when the independent witnesses have turned hostile. We do not find any error in the findings given by learned trial Court regarding seizure being proved relying upon the testimony of Investigating Officer.
16. Since, it has been established that the appellant was having 12 bore licensee gun which was seized by the Investigating Officer S.N. Singh (PW-21) from the possession of appellant/accused, therefore, we move forward to decide the question as to whether the deceased was shot dead by the appellant using said firearm or not ?.
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17. On perusal of statement of Dr. D.K. Kaudiya (PW-22), it appears that he performed autopsy and had stated before the trial Court that he found a red coloured inverted injury at the left side and inside below of subcostal margin having blackening around thereof measuring 5x4 centimetre. The wound track was having oblique direction which is side of iliac fossa. He further submits that on performing internal examination, he found that large vessels was torned upto the level of L1 and L2 vertebra and just above that, the abdominal aorta was also found to be torned. Peritoneum layer was also torned having Hemoperitoneum. Omentum was charred and stuck to each side. L1 and L2 vertebra was found broken. He found some plastic stuff (air cushion wad) in the body of deceased. He further stated that he found 23 pellets near L1 and L2 vertebra. He opined that the cause of death of deceased was Haemorrhagic Shock on account of gun shot injury.
18. Further, the seized articles including 23 pellets and air cushion wad found from the body of deceased were sent to FSL for chemical analysis and on perusal of report thereof vide Ex. P/28 and P/29, it transpires that blood was found on the soil seized from the spot i.e. house of appellant/accused, however, same was disintegrated. The Ballistic Report suggests that the firearm i.e. 12 bore gun seized from the possession of Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 10/18/2024 12:20:42 PM 15 NEUTRAL CITATION NO. 2024:MPHC-JBP:52079 Cr.A. No. 381 of 2011 appellant/accused is in working condition and the recovered empty cartridge were fired from said gun, however, the Ballistic Report is not found conclusive so far as it relates to examination of 23 pellets recovered from the dead body of deceased as the Ballistic Report only shows possibility of pellets being fired from the gun seized from the possession of appellant/accused. However, the Ballistic Report further shows that the partially deformed air cushion wad which was recovered from the dead body of deceased is a part of 12 bore empty cartridge recoverd from the spot and gun. True it is, that the Ballistic Report produced by the prosecution is found inconclusive as it is not free from reasonable doubt which could be met out by way of examination of Ballistic Expert before the trial Court. However, it is well settled principle of law that examination of a Ballistic Expert is not an inflexible rule in every case involving use of a lethal weapon and that surrounding circumstances in the prosecution case are sufficient to prove a death caused by a lethal weapon, without a ballistic examination of the recovered weapon . In the case of Gurucharan Singh v. State of Punjab, reported in AIR 1963 SC 340, the Hon'ble Supreme Court has analysed the principle and held that examination of a ballistic expert is not an inflexible rule in every case involving use of a lethal weapon. The relevant portion is quoted here in under :-
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"19. It has, however, been argued that in every case where an accused person is charged with having committed the offence of murder by a lethal weapon, it is the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which, and in the manner in which, they have been alleged to have been caused; and in support of this proposition, reliance has been placed on the decision of this Court in Mohinder Singh v. State [Mohinder Singh v. State, 1950 SCC 673] . In that case, this Court has held that where the prosecution case was that the accused shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun, and the nature of the injuries was also such that the shots must have been fired by more than one person and not by one person only, and there was no evidence to show that another person also shot, and the oral evidence was such which was not disinterested, the failure to examine an expert would be a serious infirmity in the prosecution case. It would be noticed that these observations were made in a case where the prosecution evidence suffered from serious infirmities and in determining the effect of these observations, it would not be fair or reasonable to forget the facts in respect of which they came to be made. These observations do not purport to lay down an inflexible rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if an expert is examined. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by post-mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading the evidence of a ballistic expert. In what cases the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case. Therefore, we do not think that Mr Purushottam is right in contending as a general proposition that in every case where a firearm is alleged to have been used by an accused person, Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 10/18/2024 12:20:42 PM 17 NEUTRAL CITATION NO. 2024:MPHC-JBP:52079 Cr.A. No. 381 of 2011 in addition to the direct evidence, prosecution must lead the evidence of a ballistic expert, however good the direct evidence may be and though on the record there may be no reason to doubt the said direct evidence."
(emphasis supplied)
19. Similarly, in the case of State of Punjab v. Jugraj Singh reported in (2002) 3 SCC 234, the Hon'ble Supreme Court had noticed that surrounding circumstances in the prosecution case are sufficient to prove a death caused by a lethal weapon, without ballistic examination of the recovered weapon.
20. In the case at hand, as noted above, the statements of Urmila Bai (PW-3), Pappi Bai (PW-9) and Kalwatiya Bai (PW-4) and Ramkumar Prajapati (PW-5) are trustworthy and sufficient to prove that due to property dispute, there was animosity between the appellant/accused and other family members and on the date of incident, the appellant/accused was abusing and when deceased-Ganesh went to him, the appellant/accused fired gun shot over the deceased on vital part of his body which resulted into his death. It is not a case where possibility of more than one weapon can be thought of either from the spot or from the statements of witnesses rather, while giving the statement under Section 313 of Cr.P.C., the accused himself has not denied the fact of his gun being used in the crime, however, he took the plea of self defence by saying that Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 10/18/2024 12:20:42 PM 18 NEUTRAL CITATION NO. 2024:MPHC-JBP:52079 Cr.A. No. 381 of 2011 the fire was made during scuffle. The evidence of Ramkumar Prajapati (PW 5) confirms that the deceased was lying injured into the house of the appellant. The evidence led by the prosection is corroborated from the statement of appellant/accused given under section 313 of Cr.P.C . It is true that the statement given under Section 313 of Cr.P.C cannot be used as evidence against the appellant/accused but it can be used for corroboration of prosecution evidence. In the case of Ramnaresh v. State of Chhattisgarh, reported in (2012) 4 SCC, the Hon'ble Supreme Court has held as under:-
"52. It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 CrPC is upon the court. One of the main objects of recording of a statement under this provision of CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law."
21. In presence of convincing evidence of eyewitness and other attending circumstances viz. nature of injury and cause of death corroborating the statement of accused under Section 313 of Cr.P.C, we do Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 10/18/2024 12:20:42 PM 19 NEUTRAL CITATION NO. 2024:MPHC-JBP:52079 Cr.A. No. 381 of 2011 not find that non-examination of the Balistic Expert in this case, in any way, has affected the creditworthiness of the version putforth by the eyewitness and other prosecution witnessess.
22. Therefore, we come to the conclusion that the learned trial Court did not commit any error in holding that the appellant/accused caused death of deceased by using his licensee 12 bore gun.
23. Now, the question which remains to be decided is as to whether the act done by the appellant/accused would constitute an offence under Section 302 of IPC or would fall under exception thereof ?
24. Coming back to the facts of the case, on careful scrutiny of evidence led by the prosecution, it appears that the prosecution failed to establish any serious dispute between the parties on the date of incident except abusement that too prior to incident, however, it is found proved that there was previous enmity between them on account of some property dispute. All the essential elements show that the death of deceased was not pre- meditated as deceased himself went to appellant/accused when the appellant was at home and door was closed from inside. Though, it cannot be said that there was a quarrel or sudden provocation, but it appears that when the deceased reached to appellant/accused, the instinctive reaction of the appellant was to resist and disproportionately reacted by firing over the Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 10/18/2024 12:20:42 PM 20 NEUTRAL CITATION NO. 2024:MPHC-JBP:52079 Cr.A. No. 381 of 2011 deceased on vital part of his body which resulted into death of deceased. The disproportionate reaction of appellant/accused itself indicates his knowledge and intention of causing death of deceased, however, such act appears to have been done in the heat of passion which might have been arose from old bitterness in relationship. The evidence adduced by defence witness namely Smt. Umadevi (D.W. 1) does not inspire confidence and therefore, learned trial Court has rightly discarded her testimony as well as plea of self defence. Therefore, we held that the appellant's conviction under Section 302 of IPC is not appropriate. The act of appellant would fall under the exception of Section 300 of IPC.
25. As far as conviction under Section 30 of Arms Act is concerned, the prosecution beyond reasonable doubt has proved that the appellant violated the conditions of Arm licences and therefore, finding recorded by the trial Court does not require any interference of this Court.
26. In the facts of the present case, this Court is of the opinion that the appellant should be convicted under Section 304 part I of IPC, as he had the intention of causing such bodily harm, to the deceased, as was likely to result in his death, as it did. Having regard to these circumstances, the conviction under Section 302 of IPC recorded by the trial Court, is altered to Section 304 Part I of IPC. The sentence too, is therefore, modified from Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 10/18/2024 12:20:42 PM 21 NEUTRAL CITATION NO. 2024:MPHC-JBP:52079 Cr.A. No. 381 of 2011 life imprisonment to 10 years rigorous imprisonment. The sentence imposed under Section 30 of Arms Act and direction to pay fine, be undisturbed.
27. Appellant shall be released forthwith if he has already suffered 10 years RI and is not required in any other case.
28. With the aforesaid, present appeal stands disposed off.
29. Shri Dinesh Kumar Upadhyay -learned amicus curiae was appointed to represent the appellant/accused. We put on record the words of appreciation for able assistance rendered by him enabling this Court in arriving at the proper conclusion in deciding the instant appeal. Shri Dinesh Kumar Upadhyay, Advocate shall be entitled to receive remuneration from the Legal Services Authority as per rules.
30. Let record of the trial Court alongwith copy of this judgement be sent to the court concerned for information and necessary compliance.
(SUSHRUT ARVIND DHARMADHIKARI) (ANURADHA SHUKLA)
JUDGE JUDGE
skt
Signature Not Verified
Signed by: SANTOSH
KUMAR TIWARI
Signing time: 10/18/2024
12:20:42 PM