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Hon'ble Dinesh Kumar Singh-I,J (Delivered by Hon'ble Dinesh Kumar Singh-I, J)

1. Heard Sri Anil Kumar Singh, learned counsel for the appellants, Sri G.P. Singh, learned brief holder for the State and perused the record. Sri Lalta Prasad & Sri P. K. Singh, learned counsel for the informant are not present though the appeal has been called in the revised list.

2. This Criminal Appeal No. 5714 of 2015 has been directed against the judgment and order dated 20.11.2015 delivered by the Additional Session Judge, Court No.2, Kaushambi, in Session Trial No. 442 of 2009 (State Vs. Ashish Kumar and 2 others), under Sections 302 and 504 IPC and Section 3 (2) (v) SC/ST Act, pertaining to Case Crime No. 116 of 2009, Police Station Charwa, District Kaushambi whereby accused-appellant Ashish Kumar, Awadhesh Kumar and Suresh Kumar have been held guilty and awarded punishment under Section 302 read with Section 34 IPC and read with Section 3(2)(v) of SC/ST Act with life imprisonment and fine of Rs. 10,000/- each and in default of payment of fine six months additional imprisonment each; under Section 504 IPC with one year rigorous imprisonment and fine of Rs. 2000/- each and in default of payment of fine, two months additional imprisonment each and in S.T. No. 439 of 2009 (State vs. Awadhesh Kumar Mishra) under Section 25 Arms Act, pertaining to Case Crime No. 118 of 2009 Police Station Charwa, District Kaushambi whereby accused-appellant Awadhesh Kumar Mishra has been held guilty and awarded punishment under Section 25 of Arms Act with three years rigorous imprisonment and fine of Rs. 3000/-, in default of payment of fine, two months additional imprisonment. Both the Session Trial have been decided by a common judgment as the facts of both the Session Trial were related to the same occurrence.

30. As regards the offence under Section 504 IPC and Section 3 (2) (v) SC/ST Act, it is held that the exact words which are spoken in giving abuse while exhorting to kill the informant, were proved, hence charges under the afore-mentioned sections are also held to have been proved.

The analysis of the evidence and opinion of this court:

31. According to prosecution version as mentioned in the F.I.R. when first informant Shiv Bhawan Pasi (PW-1) was returning from the brick-kiln of Maqsood Ahamad on 23.05.2009 at about 9.30 PM, where he was employed for driving tractor and reached near hand pump situated towards North of his house, all the 3 accused namely Awadhesh Kumar Mishra, Ashish Kumar Mishra and Suresh Kumar were indulging in abusing on account of plucking of lemon and jackfruit and when PW-1 denied that any of his family members had plucked any such fruits and ask them not to abuse, all the three started saying abusingly "Maro Sale Pasi Ko Bachkar Na Jane Paye", hearing this PW-1 ran from there but he was fired upon by accused Awadhesh Kumar which hit his son Manoj Kumar in his abdomen instead of him, who soon fell down and was taken to Swaroop Rani hospital where he was operated. The F.I.R. was lodged on 24.05.2009 at 20:20 hours. Thereafter on 31.05.2009 the deceased was referred to Varansi and died on way to Varansi near Gopi Ganj. His dead body was brought back to S.R.N. Hospital where it was told by the Doctor that he should be taken to P.S. Charwa, where his panchayatnama (Exhibit Ka-12) was prepared on 31.05.2009 at 13:20 p.m. and thereafter the case was converted under section 302 IPC. In panchayatnama the opinion was expressed by the panchas that the deceased died of a firearm injury. It is true that the doctor who had medically examined the injured/deceased immediately after the occurrence has not been examined by prosecution, which is a fault on the part of prosecution, but the benefit of that cannot be allowed to go to the accused, as the prosecution has examined the pharmacist, Atar Singh (PW-11) to prove the said injury memo (Exhibit Ka-20) who has stated that the said report was prepared by Doctor Vikram Anand and that it was by inadvertent mistake that the date of its preparation of injury memo has been mentioned to be 23.05.2009 instead of 24.05.2009. This injury memo contains only one firearm wound which was kept under observation. The explanation given by PW-11 in respect of discrepancy in date of preparation of the injury memo seems to be justified because the examination appears to have been conducted in the intervening night of 23.05.2009 and 24.05.2009 at 1:25 a.m. and that is the reason why the Doctor instead of mentioning 24.05.2009 at 1:25 a.m. has mentioned 23.05.2009 at 1:25 a.m. by mistake. Thereafter his post-mortem was conducted by Dr. Rajesh Kumar (PW-7) on 31.05.2009 at 5:00 p.m. who noted in post-mortem report (Exhibit Ka-2) that there were two stitched wounds found on the person of the deceased, one on the middle portion of the abdomen which was 16 Cms. long and had 14 stitches and the other one on the upper portion on the right side 6 Cms. long having five stitches. The learned trial court has rightly interpreted these two stitched wounds to correspond to one firearm injury as noted by the Doctor in injury memo (Exhibit Ka-20) because they appeared to be two injuries as during operation the stitches were made at two places in the abdomen. No cross-examination has been done by the defence counsel raising any doubt that these two stitched wounds do not correspond to the injury mentioned in the injury memo (Exhibit Ka-20). There also does not appear to be any exceptionally long delay in lodging F.I.R. because whatever delay appears to be there seems to be justified on account of natural conduct of PW-1, whose son was undoubtedly required to be rushed to the hospital first for being given treatment to save his life instead of going to the PS concerned first to lodge a F.I.R. . It was very natural that after having got admitted his son, PW-1 went to lodge F.I.R.

37. In the light of above provisions it is clear that even if there was knowledge that causing such bodily injury was likely to cause death, even though by skilful treatment death could have been prevented, would not save the accused from being held guilty under section 302 IPC and it is also clear that even if there was no intention to kill a person, even then the person who caused death would be held to have intended to cause death or would be held to know that he was likely to cause death and in such a situation would be open to be held guilty under section 302 IPC. In the case hand, therefore, it is evident that the argument that the intention was to kill the informant upon whom the accused opened fire, but the same hit his son in abdomen which resulted in his death, would fall in the domain of an offence punishable under section 302 IPC. Therefore, in that regard holding the accused Awadhesh to be guilty under section 302 IPC does not appear to be a wrong finding given by the learned trial court. But as regards the other two accused namely Ashish Kumar and Suresh Kumar, the evidence does not appear to be sufficient on record to hold them guilty under section 302 read with Section 34 IPC as well as under Section 504 IPC and Section 3 (2) (v) of SC/ST Act, there being contradictory statements of the eye-witnesses. Even in case of Awadhesh the offences under other sections i.e. Section 504 IPC and Section 3 (2) (v) of SC/ST Act do not appear to be made out on the evidence on record because of contradictory statements of the eye-witnesses. Therefore, the findings of the learned trial court deserve to be set aside in respect of holding the co-accused Ashish Kumar and Suresh Kumar to be guilty under Section 302 read with Section 34 IPC, 504 IPC and Section 3 (2) (v) of SC/ST Act and also in respect of holding accused Awadhesh to be guilty under 504 IPC and Section 3 (2) (v) of SC/ST Act. The accused Awadhesh deserves to be held guilty only under Section 302 IPC simplicitor because he is assigned the main role of opening fire upon the first informant which instead of hitting him, hit the deceased, his son. No prejudice appears to have been caused to the accused by not framing charge against him under Section 302 IPC simplicitor, as the entire evidence which has come on record suggests that it was he and he alone who is stated by the witnesses to have opened fire upon the informant which hit his son. As regards charge under Section 3(2)(v) of SC/ST Act, we are of the opinion that since the deceased was not done to death on the ground that he belonged to Scheduled Caste, even charge under Section 3(2)(v) of SC/ST Act also does not stand proved as occurrence took place on account of dispute to pluck lemon and jackfruit.

43. In view of above the appeal is partly allowed, the accused-appellant Awadhesh Kumar Mishra is held guilty only under Section 302 IPC and the punishment of life imprisonment and fine of Rs. 10,000/-, in default of payment of fine six months additional imprisonment awarded by the trial court for the same is upheld, however, he is acquitted of charges under Section 504 IPC and Section 3(2)(v) SC/ST Act. Similarly, the other co-accused namely Ashish Kumar Mishra and Suresh Kumar Mishra are also acquitted of charges under Section 302 read with Section 34 IPC, 504 IPC and Section 3(2)(v) SC/ST Act. Since they are on bail, their sureties stand discharged. The accused-appellant Awadhesh Kumar Mishra is also acquitted of charge under Section 25 of Arms Act.