Madhya Pradesh High Court
Ashish Kumar Tiwari vs State Of Madhya Pradesh on 26 July, 2007
JUDGMENT A.P. Shrivastava, J.
1. Appellant has filed this appeal under Section 374(2) of Cr.P.C. against the judgment of conviction and sentence dated 28.11.2000 passed by IVth Additional Sessions Judge, Bhind (M.P.) in S.T. No. 188/99, by which the appellant has been convicted under Section 304A of IPC and sentenced to undergo rigorous imprisonment for two years with a fine of Rs. 10,000/- with default stipulation.
2. The factual aspect of the case is that on 12.05.99, at Police Station Mehgaon, Shivsharan Singh Chauhan (P.W.6) came to the police station along-with deceased Anil Kumar Singh and lodged a report which is Ex.P.6. According to the report, 'barat party' of Parbal Pratap Singh came to the residence of Ranveer Singh Bhadoriya at village Mungaoli. Anil Kumar Singh and appellant Ashish Kumar Tiwari were also came along- with 'barat party'. When 'tika ceremony' was going on, appellant fired rash and negligently from a 12 bore gun by which the bullet hit at the stomach of the deceased Anil Kumar Singh and he sustained injury and fell down on the ground. On receiving the First Information Report, a case under Section 336 of IPC was registered against the appellant at police station Mehgaon but later on it was converted to Section 304 of IPC. The deceased Anil Kumar Singh was referred to J.A. Hospital,Gwalior where he died. Charge-sheet was filed. The trial Court initially framed the charges against the appellant under Section 302 of IPC and under Sections 25 and 27 of the Arms Act on 21.9.99. On 27.11.2000, the alternative charge under Section 304A of IPC was framed against the appellant and the same was denied by him. The learned trial Court after considering the material on record, convicted the appellant under Section 304A of IPC and sentenced accordingly as stated in above para one.
3. Counsel for the appellant submits that the learned trial Court has committed error by framing the charge alternatively under Section 304A of IPC on 27.11.2000 when the case was closed for final arguments. Judgment was delivered on the same set of evidence which was produced in connection with earlier charges under Section 302 of IPC and under Sections 25 and 27 of the Arms Act. No additional evidence has been adduced by the prosecution and the learned trial court pronounced the judgment on the next day i.e. on 28.11.2000. Learned Counsel for the appellant also submits that there should be separate charge for distinct offence and shall be tried separately as per Section 218 of Cr.P.C. Section 218 of Cr.P.C. reads as follows:
218. Separate charges for distinct offences -(1) for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately: Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby the Magistrate may try together all or any number of the charges framed against such person.
4. From the proceedings of the lower Court, it appears that the learned trial Court has framed the charge under Section 304A of IPC as an alternative to Section 302 of IPC, which was framed earlier, it is mentioned in the order-sheet, dated 27.11.2000. Both the parties informed that they does not want to examine or cross-examine of any witnesses. Therefore, the court reheard final arguments again and delivered the judgment on 28.11.2000.
5. The grievance of the appellant is that after framing the alternative charge under Section 304A of IPC as this is a distinct offence. It ought to be tried separately and there is no evidence on record regarding 304A of IPC. Therefore, the evidence led by the prosecution in response the charge under Section 302 of IPC cannot be taken into consideration against the appellant. The essential ingredient of rash and negligent act are lacking in the instant case.
6. The learned trial Court gave an opportunity under Section 217 of Cr.P.C. for recalling the witnesses when the charge has been altered. But the opportunity was not availed by the prosecution as well as by the defence.
7. In sub-clause 2 of Section 218 of Cr.P.C, it is also mentioned that nothing in Sub-section (1) shall affect the operation of the provisions of Sections 219, 220, 221 and 223 of Cr.P.C.
Section 219 of Cr.P.C. reads:-Three offences of same kind within year may be charged together.
Section 220 of Cr.P.C. reads:-Trial for more than one offence.
Section 221 of Cr.P.C. reads:-Where it is doubtful what offence has been committed. The accused may be charged with having committed all or any of such offence, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
In Section 215 of Cr.P.C. it is also mentioned that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
8. Regarding the effect of omission to frame, or absence of, or error in,charge Section 464 of Cr.P.C. is relevant which is as follows:
464. Effect of mission to frame, or absence of, or error in, charge-(1) No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may
(a) In the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge.
(b) In the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.
9. The case has in a better position because charge under Section 304A of IPC was framed by the trial court before pronouncement of judgment. The court has ample power to amend, alter or frame charge alternatively at any stage of the trial. Therefore, the preliminary objection regarding the charge under Section 304A of IPC is having no merit.
10. It is submitted by learned Counsel for the appellant that prosecution has examined in all 17 prosecution witnesses and two court witnesses, out of which Prabal Pratap Singh(P.W.1), Keashav Singh (P.W.3), Ranveer Singh (P.W.4), Amar Singh (P.W.5), Shishupal Singh (P.W.7) Dhirendra Singh Chauhan (P.W.11) did not support the prosecution case while Arvind Singh (P.W.2) and Shivsharan Singh (P.W.6) supported the prosecution case. The police recorded the statement of the deceased Anil Kumar Singh under Section 161 of Cr.P.C which is Ex.P.15 and it can be treated as dying declaration. In his statement it is stated that appellant fired him intentionally. But there was no evidence on record about rash and negligent act of the appellant.
11. Arvind Singh (P.W.2) in para 2 of his statement stated that when 'barat party' has come, Anil was sitting in a chair. Appellant Ashish was also coming in the 'barat party'. The cause of quarrel was for sitting in the chair. At that time appellant having a 12 bore gun and fired from the gun by which the bullet hit on the stomach of the deceased Anil Kumar Singh. Then persons who were coming in the 'barat party' caught hold the appellant and the injured was taken to Mehgaon Police Station. From there, he was referred to J.A. Hospital, Gwalior where he died.
12. Shivsharan Singh (P.W.6) who lodged the report at the police station in para 2 of his statement deposed that the dispute between the deceased and the appellant was due to sitting on the chair and the appellant fired from a 12 bore gun by which the bullet hit on the stomach of the deceased Anil Kumar Singh. He fell down on the ground and thereafter, taken to the police station Mehgaon. The report was lodged at the police station which is Ex.P.6.
13. Prosecution also examined Prabal Pratap Singh P.W.1. He has not supported the prosecution case and declared hostile. Similarly, Kashav Singh(P.W.3), Ranveer Singh (P.W.4), Dhirendra Singh Chauhan (P.W.11) have not supported the story of the prosecution. Ultimately, all the witnesses have been declared hostile by the prosecution.
14. Now, coming to the medical evidence.
15. Dr.B.S.Kushwah(C.W.)was posted as Medical Officer in the Primary Health Centre, Mehgaon. Police Bale brought Anil Kumar Singh to the medical with injured condition. From there, he was referred to Gwalior. He stated that when the patient was treated in the hospital, entry was not made in the register by him. The doctor has not taken any treatment at Primary Health Centre, Mehgaon. In his cross-examination, the witness deposed that he confessed his mistake for not giving proper treatment and entry not made in the register.
16. Dr. S.M. Tiwari (P.W.16) was posted at Jayarogya Hospital, Gwalior. On 13.5.99, Anil Kumar Singh was admitted in his unit and was died on 22.5.99. According to the doctor, he sustained injury on his stomach and due to this he died. The report is Ex.P.21.
17. Dr.J.N.Soni(P.W.15) conducted the post mortem of the deceased. The report is Ex.P.20. The cause of death as per the report Ex.P.20 is cardio-respiratory failure as a result of abdominal injury. From the medical report, it is clear that the death of the deceased was caused due to gunshot injury sustained at the stomach of the deceased and damaged the intestine due to pellets.
18. In this case, there are two dying declarations, one is Ex.B1 which is recored by Dr. Sudersan Odiya (C.W.1) at J.A. Hospital, Gwalior. According to the witness, when statement was recorded, the patient was fully conscious and the statement was recorded as per description given by the deceased Anil Kumar Singh. He denied that he recorded the statement for giving benefit to the appellant. In his statement, the deceased had not named anybody. The statement given by the deceased Anil Kumar Singh recorded by Dr. Odiya which is reproduced as under:
& rqEgkjk uke] mez] irk D;k gS \ D;k djrs gks \ uke vfuy dqekj flag S/o jkt cgknqj flag mez 28 lky irk & xkWo izrkiusj flfoy ykbZu tuir bVkok [ksrh djrk gwWA & rqEgsa xksyh dc dgkWa vkSj dSls yxh eSa esgxkao ds ikl ,d xkWo esa ckjkr es x;k Fkk ogka lkFk ds ,d ckjkrh ls xyrh ls xksyh py xbZ tks eq>s yx xbZ ;g ?kVuk 12-05-99 dks jkr 9 cts ?kVh & xksyh fdlus pykbZ ogka dkSu dkSu Fkk \ xksyh ,d ifjfpr O;fDr ls pyh ftldk uke eSa ugh tkurk ogka ij dkQh ckjkrh Fks & vkSj dqN dguk gS \ ughaA I. Dr. Sudershan Odiya R.S.O. on duty recorded the statement of patient Anil Kumar Singh on 13.5.99 at 3.45 a.m. by making sure that patient. remained conscious throughout statement.
19. The second dying declaration is statement of the deceased recorded by the police under Section 161 of Cr. P.C. which is Ex.P.15 and the relevant portion is reproduced as under:
ckjkr esa 12 cksj nqukyh canwd ysdj vk'kh"k frokjh fupdok cqtqxZ dk Hkh vk;k Fkk eSa tkdj dqlhZ ij cSB x;k mlus eq>s dqlhZ ls mB tkus dks dgk eSus euk dj fn;k rks mlus esjs /kDdk ekj fn;k rks eSus mlds /kDdk ekj fn;k njcktk gks jgk Fkk lksbZ vk'kh"k frokjh us esjh vksj xksyh pyk nh tks NjsZ dh xksyh esjs nka;h vksj uhps isV ij yxh [kwu fudy vk;k vkSj eSa fxj x;kA
20. In this case, two dying declarations were recorded. The first is Ex.B1 in which the deceased has not named anybody and as per his statement, the fire was took place all of a sudden and not named anybody but fire was made some of the 'barat party'. But the statement given under Section 161 of Cr.P.C , there is improvement in which it is written that the appellant intentionally fired from a gun on the stomach of the deceased so that he received fatal injury. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declaration if some inconsistencies are noticed between one and the other, the court has to examine the nature of inconsistencies namely whether they are material or not. In scrutinizing the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.
(Smt. Kamla v. State of Punjab )
21. In this case, there are two sets of evidence One is related to that the gun was fired unintentionally and the second is that it was intentionally fired towards the deceased.
22. Now, I will examine the evidence which produced by the prosecution. As per the First Information Report (Ex.P.6) in which it was written that the gun was fired due to negligence. Shivsharan Singh (P.W.6) who has written the First Information Report (Ex.P.6) admitted that he has made the report at the Police Station but he denied that the fact negligently was not stated by him. He also deposed that there is omission in his report and the police statement that there was quarrel took place between the deceased and the appellant. The prosecution case rests on the testimony of Arvind Singh (P.W.2) and Shivsharan Singh (P.W.6) who are the eye-witnesses at the time of occurrence because the remaining of the witnesses, namely, Prabal Pratap Singh (P.W.1), Keshav Singh (P.W.3), Ranveer Singh (P.W.4) , Amar Singh (P.W.5), Shishupal Singh (P.W.7),Dhirendra Singh (P.W.11) have not supported the prosecution case and declared hostile. Apart from this, medical evidence and two dying declarations, namely Ex.B1 and Ex.P.15 are important documents. Shivsharan Singh (P.W.6) who lodged the report at the police station in para 2 deposed that the case of dispute is due to sitting on the chair. When he reached there, appellant fired from a 12 bore gun and the bullet hit on the stomach of the deceased Anil Kumar Singh and then he fell down there. Similarly Arvind Singh (P.W.2) in para 2 deposed the similar fact. He also corroborated the testimony of Shivsharan Singh (P.W.6). He deposed that appellant fired from a 12 bore gun which hit on the stomach of the deceased. In the First Information Report and the testimony of Arvind Singh (P.W.2) and Shivsharan Singh (P.W.6), it is apparent that the gun was fired by the appellant by which the bullet hit on the stomach of the deceased.
23. Now, I will consider the dying declaration recorded by the doctor as well the statement recorded by the police. The first dying declaration Ex.B1 which was recorded by doctor in which the deceased not named the appellant but only informed that in the 'barat party ' due to mistake it was fired which was hit to him. He told that the fire was done by unknown person. In Ex.P.15, the deceased informed that due to sitting on the chair, altercation was took place between him and the appellant and the appellant fired towards him by which the gun pellet caused injury at his stomach. It is not mentioned that there was altercation due to sitting on the chair and the gun was pointed towards the deceased while in Ex.P.15 this fact has been mentioned that appellant intentionally fired from a 12 bore gun towards the deceased. Both the witnesses Arvind Singh (P.W.2) and Shivsharan Singh (P.W.6) have stated that the injured sustained injury due to gunshot fire by the appellant. Arvind Singh (P.W.2) stated that appellant fired from a 12 bore gun towards the deceased which caused injury at his stomach. Shivsharan Singh (P.W.6) has not deposed that it was pointed towards the deceased but only said that the gun was fired which caused injury on the stomach of the deceased. In the First Information Report Ex.P.6, it is not also mentioned that there was altercation between the deceased and the appellant over the chair and gun was fired intentionally towards the deceased. It appears that improvement was made in the statement of the witnesses as well as in the dying declarations. Therefore, in the First Information Report and first dying declaration Ex.B1, it is clear that the fire was made by the appellant. But looking to the improvement made by the witnesses and their testimony,it is not established that the gun was fired intentionally. It appears that the gun was fired rash and negligently which caused injury to the deceased and died due to rash and negligent act of the appellant. The trial Court has discussed the entire aspects regarding the injury caused by the appellant and the manner in which the deceased sustained the injury. 24. From the above discussion, I am of the view that the conviction of the appellant as recorded by the learned trial Court under Section 304A of IPC is maintained. Looking to the facts and circumstances of the case, the sentence as awarded by the learned trial Court is hereby affirmed. There is no need for interference. The bail bond of the appellant shall stand discharged. He is directed to surrender before the trial court to serve out the remaining part of sentence. Appeal is dismissed accordingly.