Reserved
Chief Justice's Court
Case :- CRIMINAL APPEAL No. - 179 of 1984 Appellant :- Vishambhar Dayal And Others Respondent :- State of U.P.
Counsel for Appellant :- A.C. Chaturvedi, Pradeep Kumar Mishra, Sudhir Kumar Kulshrestha Counsel for Respondent :- Ravindra Singh, A.G.A.
Hon'ble Govind Mathur,Chief Justice Hon'ble Vivek Varma,J.
(Delivered by Hon’ble Govind Mathur, C.J.)
By the judgment impugned dated 16.01.1984, learned IVth Additional Sessions Judge, Mainpuri in Sessions Trial No. 69 of 1983 recorded conviction of accused Vishambhar Dayal for commission of an offence punishable under Section 302 Indian Penal Code and sentenced him to undergo life term imprisonment. The other accused Munna S/o Vishambhar Dayal and Pappu S/o Vishambhar Dayal were also held guilty for commission of offence punishable under Section 302 read with Section 34 Indian Penal Code and were also sentenced to undergo imprisonment for life. Being aggrieved by the same, instant appeal is preferred.
The case of the prosecution is that on 20.11.1982 at about 06:30 A.M., accused Vishambhar Dayal and his sons Munna and Pappu had some heated altercations with Kamta Prasad (deceased). The houses of deceased Kamta Prasad and accused Vishambhar Dayal were located opposite to each other in the same lane. The dispute was with regard to a platform and making of cow dung cakes. Pappu and Munna, at the first instance, entered into heated arguments with daughter of deceased Kamta Prasad and, at that time, Jaimanti W/o Kamta Prasad was also there. The accused-appellants also abused Kamta Prasad. Pappu and Munna entered into a scuffle with Kamta Prasad, who too was present at the site. During the course of scuffle, accused-appellant Vishambhar Dayal brought a licensed 315 bore rifle from his house and loudly shouted with instructions to his sons to get away. He then fired a gun shot on Kamta Prasad which hit at his hip. A first information report of the incident was lodged at Police Station Kotwali Shikohabad, Mainpuri at the instance of deceased Kamta Prasad himself. A case for commission of offence under Section 307 Indian Penal Code was lodged and investigation commenced.
During the course of investigation, Kamta Prasad died, hence the Police initiated investigation for commission of offence under Section 302 Indian Penal Code. During the course of investigation, inquest was made and a site plan was prepared. The corpus of the deceased Kamta Prasas was subjected to autopsy, report of that is available on record as Exhibit Ka-2. As per the report of post mortem, cause of death was shock and hemorrhage due to ante mortem injuries. The prosecution after completing the investigation filed a report as per provisions of Section 173 Code of Criminal Procedure, 1973 before a competent Court. The Court competent committed the case to the Court of Sessions being sessions triable. Learned Additional Sessions Judge, Mainpuri framed a charge against the accused Vishambhar Dayal for commission of offence under Section 302 Indian Penal Code and against Pappu and Munna for commission of offence under Section 302 read with Section 34 Indian Penal Code. The charges were read over and explained to the accused-appellants in their mother tongue. On being pleaded not guilty, trial commenced as desired.
The prosecution supported its case by exhibiting several documents and getting testimony of six persons (PW-1 to PW-6) examined. Out of the six witnesses produced before the trial Court, Shivraj Singh (PW-1), Girwar (PW-2), Badan Singh (PW-3) and Rajvati @ Rajjo (PW-4) were cited as eye-witnesses. Testimony of Dr.
H.S. Tiwari (CW-1) was examined being called by the Court to have certain explanations about nature of the gun shot injuries. Dr. A.K.
Saxena (PW-5) adduced medical evidence as he conducted autopsy on the corpus of deceased Kamta Prasad. Opportunity was extended to the accused-appellants to explain adverse and incriminating circumstances in the prosecution evidence. All the three accused termed the entire evidence false and concocted. As per them, they were involved in the criminal case falsely. No evidence in defence was adduced.
The trial Court after examining the evidence available on record and hearing the arguments held the accused-appellants guilty for the charges levelled against them and sentenced accordingly.
The only argument advanced by learned counsel for the appellants is that, even by accepting the prosecution case, the offence committed by the accused-appellants does not travel beyond an offence punishable under Section 304 Part II Indian Penal Code.
Learned Additional Government Advocate though opposed the appeal, but accepted that the incident occurred spontaneously, suddenly and in the midst of the heated altercations.
We have examined the entire record and considered the arguments advanced.
It would be appropriate to state that the incident occurred on 20.11.1982 at 06:30 A.M. and after a lapse of about two hours, the deceased Kamta Prasad in injured condition lodged the first information report. The investigation, as such, commenced for commission of offence punishable under Section 307 Indian Penal Code. Sri Kamta Prasad died on the same day in evening hours. Prior to that at about 12:30 hours, he was re-examined by CW-1 Dr. H.S. Tiwari, who advised him to rest; then at about 13:20 hours, he referred Kamta Prasad for treatment at Agra Medical College. Pertinent to mention that on asking by the Court, this witness stated that the patient did not appear in severe shock and, while making treatment, he failed to record the injuries of patient with their location.
Be that as it may, the autopsy on the corpus of deceased Kamta Prasad was made by Dr. A.K. Saxena (PW-5). As per him, the deceased had following ante mortem injuries:-
“(i) Gun shot wound of entry 1 cm x 1 cm x cavity deep on outer side of right hip 12 cm below right eliac crest. Margins inverted irregular underlying right hip bone fractured. No blackening, scorching or tatooing present.
(ii) Gun shot wound exit 2 cm x 1.5 cm x through and through with injury no. 1 on mid line just above gluteal thigh. Margins irregular in everted.
(iii) Gun shot wound entry 1 cm x 1 cm x skin on midline just above and towards left side of injury no. 2. Margins inverted and irregular. No blackening scorching or tatooing present.
(iv) Gun shot wound of exit 3 cm x 2 cm x through and through with injury number 3 on left side of the hip 13 cm below left eliac crest. Margins everted and irregular.”
A perusal of injuries aforesaid indicates that the fire arm injuries were not at any vital part of the body, but the gun shot was made from a very small distance. It is interesting to know that this witness also nowhere stated that which one was the injury sufficient to cause death in natural course of life.
Coming to the version of facts stated by the eye-witnesses, it would be appropriate to state that all the witnesses stated that they heard some noise of abuses and saw Munna and Pappu in heated altercations with Rajwati @ Rajjo and her mother. The altercations between the parties were relating to throwing of cow dung while making cow dung cakes. Vishambhar Dayal was standing on a platform and was observing the events. During the course of heated altercations, Vishambhar Dayal shouted to get away his sons and then he entered in his house and return with a rifle. A shot then was fired by him which caused injury on the hip of deceased Kamta Prasad. All the eye- witnesses, including daughter of deceased Kamta Prasad, namely, Rajwati @ Rajjo (PW-4), narrated the facts in same tune.
The facts stated above clearly indicates that the entire incident occurred during the course of heated arguments and in the heat of moment, Vishambhar Dayal caused only one fire arm injury. The injury, so caused, was also not on vital part of the body, but on the thigh of right leg. The accused used a fire arm for causing such injury and, therefore, he must be knowing this fact that the weapon used by him may cause such bodily injury that was likely to cause death. However, by no stretch of imagination, the offence committed by the accused Vishambhar Dayal can be termed and treated as murder as defined under Section 300 Indian Penal Code. The offence committed by him is an offence punishable under Section 304 Part I Indian Penal Code. In view of it, the trial Court erroneously held him guilty for the offence punishable under Section 302 Indian Penal Code.
So far as other two accused persons are concerned, they were convicted by the trial Court with the aid of Section 34 Indian Penal Code. There is no evidence available on record on basis of that it can be presumed that they were sharing any intention to cause any crime in association with their father. As a matter of fact, accused Pappu and Munna were in heated altercations with Rajwati @ Rajjo (PW-4) and her mother. Deceased Kamta Prasad was also present at the site and these two accused had some scuffle with him. In transit of events, it was Vishambhar Dayal who went inside his house, brought the gun and fired. The accused Pappu and Munna, as such, had no occasion to share any intention prior to the incident or during the course of incident. In view of it, the trial Court erred in convicting them by extending the provisions of Section 34 Indian Penal Code.
Accordingly, the appeal is allowed in part. The conviction of accused Vishambhar Dayal for commission of offence punishable under Section 302 Indian Penal Code is set aside and he is held guilty for commission of offence punishable under Section 304 Part I Indian Penal Code. During the course of investigation and subsequent to the pronouncement of judgment by the trial Court, the accused-appellant Vishambhar Dayal has undergone a substantial period in prison and further at present he is 85 years of age. Looking to this circumstances, he is sentenced to have imprisonment for the period already undergone. The conviction of accused-appellants Munna and Pappu for commission of offence punishable under Section 302 read with Section 34 Indian Penal Code is set aside. They are acquitted from the charge levelled against them. Their sentence is also set aside. The bail bonds and sureties furnished by them for getting themselves enlarged on bail are also discharged.
Order Date :- 17.12.2019 Shubham .
(Vivek Varma, J.) (Govind Mathur, C.J.)