Arvind Kumar Chaturvedi vs Allahabad Bank and Others

Being aggrieved by judgment and order dated 07.03.2003 passed in S.T. No.46/02 by ASJ, Kukshi, District, Dhar whereby the learned trial Court has held the appellant guilty for the offence punishable under Section 302 of IPC and under Section 25 (1-b) (a) of the Arms Act, 1959 and sentenced him for life imprisonment with fine of Rs.500/- and R.I. for 2 years with fine of Rs.500/- respectively and in default of payment of fine, further to undergo R.I. for 2-2 months for each offence, the appellant has preferred the present appeal.

The prosecution version of the case is that on 20.11.2001, at about 10:30-11:00 A.M., deceased Sevantabai and her mother Sonabai were at home in village Aali. Sevantabai had gone to see funeral procession of Nemaji. The accused, who is husband of Sevantabai and was suspecting her character came there and fired gunshot at her. She screamed and made a call for help. Her mother rushed to the spot and tried to stop him but he repeatedly fired gunshots 3-4 times by a country made pistol at his wife alleging that she is characterless. She sustained injuries on right hand with fracture of carpal bone, supra clavicular region, left side of neck (near left side of the chest), right scapular region (3 pellets) and between thighs and inguinal region about 10 in number (8 pellets) etc. Hearing sound of gunshots, many neighboring people rushed to the spot. Tulshiram and village choukidar Dhansingh were among them and saw that Sonabai was trying to hold her. On the basis of information received from the spot, Tulshiram lodged FIR which was registered at Crime No.373/01 under Section 307 of IPC at Police Station Kukshi, District Dhar.

Sevantabai was taken to the Community Health Centre, Kukshi where Dr. Fateh Singh Chauhan examined her and found gun shots injuries as stated above. Blacking and tattooing were also present on the skin. 11 pellets were found in the body of the deceased. In the opinion of Dr. Chauhan, the injuries were fresh, grievous in nature and were sufficient to cause death in the ordinary course of nature. The injured was referred to the District Hospital, Barwani, where she died during the treatment in the evening. Dr. Rajesh Jain performed autopsy and found all the injuries commensurate to the medical examination report (Medico Legal Certificate MLC). Dr. Chauhan took out pellets and clothes of the injured, sealed them and handed over to the Police. The Police seized a country made pistol and plain and blood stained soil from the spot, prepared spot map, sealed clothes, skin and pellets received from the hospital, recorded statements of the witnesses under Section 161 of Cr.P.C., arrested the accused, interrogated him and recovered a country made pistol alongwith a knife from his possession and prepared the documents relating to all these proceedings. After completing the investigation, the Police filed the charge-sheet.

Accused was charged for the offence punishable under Section 302 of IPC and under Section 25 (1-b) (a) of the Arms Act, 1959. The appellant abjured his guilt and pleaded for trial. The prosecution examined as many as 12 witnesses and also proved several documents prepared during the investigation to establish guilt to the accused. The accused did not produce any evidence in his defence.

Tulsiram (PW-P/5), Sonabai (PW-P/6) and station in-charge, Police Station, Kukshi, R.R. Patidar (PW- /12) have stated that Seventabai expired in the evening of 20.11.2001. On this information; the Police added Section 302 of IPC in the FIR.

Dr. Fate Singh Chauhan has stated that Sewntabai was brought before him in injured condition and Dr. Rajesh Jain (PW-11) has stated that he performed post mortem of Seventabai. Both the doctors have stated that they have found multiple gunshot injuries on the carpal bone, left side clavicular region of neck, middle of thighs, upper side of right back near shoulder. Skin of the wounds was lacerated and blackening was also present. They have extracted pellets from the body of the deceased. According to Dr. Chouhan, the injuries found on the body of the deceased were sufficient to cause death in the ordinary course of nature. According to Chauhan the injuries were fresh and according to Dr. Jain, the injuries were caused within 24 hours of the post mortem by some fire arm and death was due to these injuries. The accused has not challenged the statements of both the doctors. The learned trial Court has discussed all this evidence in para no.10 of the judgment in detail and held that death of Sevantabai was homicidal and this conclusion is well supported by statements of the witnesses, particularly, the statements of Dr. Chouhan and Dr. Jain which are supported by their unchallenged reports. Thus, it is established that at the date, time and place of the incident Sevantabai died and that her death was homicidal.

Sonabai (PW-6) has deposed before the learned trial Court that at the time of incident, she was lying on the cot, her dauther Sevantabai went to see funeral procession of one Neema Thakur, at the same time, her son-in-law (the accused Mohan) came there and fired gun shot on Sevantabai, who screamed and called her. She rushed there and saw that Sevantabai sustained gunshot injuries on her shoulder, hand and thighs, she tried to stop the accused, but he did not stop. He was having a country made pistol and a knife in his hands and fled away from the spot. Tulsiram and Manoj also reached there after hearing the sound of gun fire. Tulsiram (PW-5) has stated that after hearing the gun fire sound, he rushed to the spot with village coukidar Dhansingh, they saw that Sevantabai was lying on the floor in injured condition. She sustained injuries on her shoulder and blood was oozing out. Sevantabai requested him to take her to the hospital. He took her to Kukshi hospital where he was informed that without informing the police, she may not be treated. He then went to the Police Station, Kukshi and lodged the report. Manoj (PW-7) has stated that at the time of the incident, he was sitting outside his house and heard screams of Sonabai, who was asking for help by saying that Sevantabai has sustained gunshot injuries. At the same time, there was a funeral process of one Nema Thakur in the village and some crackers were bursting, therefore, he could not understand the things and did not take it seriously. At the same time he went to buy some tobacco in the village. When he was coming back, he saw the accused was standing before the temple with a country made pistol and knife in his hands. He tried to catch him, but the accused was agitated at that time, therefore, he left him.

Tulsiram (PW-5) has stated that when he reached on the spot, Sevantabai asked him to take her to the hospital and at that time she also revealed before him that her husband Mohan has shot her.

Dr. Fate Singh Chouhan (PW-1) and T.I., R.R. Patidar, (PW-12) have stated that when Sevantabai brought to the Community Health Centre, Kukshi, TI Patidar reached there and had recorded her dying declaration. Before and after her statement, Dr. Chauhan medically examined her and found that she was conscious and in the condition of giving statements. According to T.I., Patidar, in her statement, the she stated that her husband Mohan has fired gun on her and caused her injuries.

Statements of Tulsiram, Dr. Chouhan and T.I., Patidar have remained intact. These statements have further supported by FIR (Ex-P/10), Medical Report (Ex.P/1) and Dying declaration (Ex.P/2). Nothing is there to disbelieve these statements. Nothing contrary could be brought on record by defence in their cross-examination.

Dr. Chauhan has stated that he had taken out green blouse, blue petticoat and pellets recovered from the body of the Sevantabai, sealed them and had sent to the police station. T.I., Patidar, has stated that he scribed the report, he immediately rushed to the spot, got the statements of Sevantabai, prepared the spot map, assigned blood stained plain soil from the spot, also seized a country made pistol of 12 bore which was lying on the spot and blood stained pillow. He further stated that on 24.11.2001, he arrested the accused, interrogated him and on his disclosure, recovered second country made pistol from his possession which was buried in the ground and also seized a knife kept on a slab. He had also taken out shirt and trousers of the accused, seized them and sent all the articles to the Forensic Science Laboratory, Sagar through Superintendent of Police and received the report from the same. As per the report (Ex.P/20), human blood was found on the blood stained soil collected from the spot, pillow seized from the spot, and towel of the deceased. These facts have not been challenged by the defence.

It is further stated by the T.I, Patidar that he also received report (Ex.P/19) from the Senior Scientist of FSL, Sagar. As per this report, both the country made pistols were found in operational condition, there were signs of their recent use and they can be used for causing fatal injuries. Cartridges which were seized by the police could be used in the pistols seized from the possession of the accused. The distorted pellets taken out from the body of the deceased could be loaded and fired by the cartridge which was sent for examination. Dr. Tomer further opined that the holes present in the petticoat of the deceased were gunshot holes and may be caused by the pellets seized during the investigation. It is the substance of the report of Dr. Tomer that the pellets could be a part of the cartridge and the cartridge could be fired from the country made pistol seized from the accused. The holes found in the clothes are gunshot holes and the gun could be fired on the deceased from the distance of 3 yards. Unchallenged report of Dr. Tomer (Ex.P/19) strongly supports the statements of the witnesses and the case of the prosecution as well. Statements of T.I., Patidar regarding seizure of country made pistol from the possession of the accused also remained intact even after cross-examination and these are well supported by the witness of seizure Bhagalal (PW/2) and the documents (Ex.P/4, 5 and 6). Head constable, Harikrishan (PW/9) has found that both the country made pistols were in operational condition. Arms clerk, Hariram (PW/4) has confirmed that after going through the case diary and considering the facts the then District Magistrate had granted sanction for prosecution of the accused under Section 25 (1-b) (a) of the Arms Act, 1959. Statements of both the witnesses Hariram and Harikrishan have not been challenged by the accused.

Learned trial Court has considered all these evidence and has reached on the right conclusion that it was the accused, who on the date, time and place of the incident, caused death of the Sevantabai by repeatedly firing gunshots and also kept in his possession a country made pistol and cartridge without any legal or valid license. Nothing contrary is available on record, which can create any doubt about the finding of the learned trial Court.

It is argued by the learned counsel for the appellant that there are contradictions in the statements of the witnesses, which makes their statements doubtful. There is no evidence of intention, preparation or meditation; therefore, the prosecution story is doubtful. The evidence produced by the prosecution falls short to bring home the charge under section 302 and at the most the accused can be held guilty for the offence punishable under Section 304 (12) of IPC .

It is admitted by Sonabai in her cross- examination that when she heard sound of gun fire, at that time, she was inside the house, therefore, it is argued that the statement that she had seen the accused firing on the deceased is not believable. But, the accused had fired gunshot 3-4 times and the deceased was just outside the house, therefore, this is not unnatural that after hearing gunshot and screams of her daughter, she rushed to the spot and had seen the accused firing on the deceased. Therefore, this statement does not create any doubts. The defence has also suspected the conduct of Manoj, that even after hearing voice of Sonabai, he did not reach the spot and even after catching the accused, he left him or allowed him to go and never visited the spot. He also could not point out as to when he caught the accused, which pistol out of two, the accused was having in his hand. But, these facts have not been challenged in the cross examination. Two country made pistols have been seized from the possession of the accused and both were similar, therefore, confusion of the witnesses is insignificant. The witness has stated that he did not have courage to see the injured body, therefore, he did not visit the spot. This explanation has not been challenged and it appears to be plausible, therefore, his statements remained reliable to the extent he has supported the case of the prosecution.

The accused had reached his in-laws house with two loaded country made pistols in his possession. He was also having a knife in his possession. He was suspecting character of his wife. He repeatedly fired gunshots and ensured the death of the deceased then escaped from the spot. All these evidence are sufficient to contradict the plea of the accused that there was no intention, preparation or meditation for causing the offence. Therefore, the learned trial Court has rightly held the accused guilty for the offence punishable under Section 302 of IPC. The offence of the accused did not fall under the purview of Section 304 (2) of IPC . 17. Learned counsel for the appellant placed reliance on State of Rajasthan v. Daud Khan reported in (2016) 1 SCC (Cri.) 793 where it is held that when no blood or blood trail found at the place of shooting and the blood was found 70ft. away where the deceased succumbed and only one bullet was fired at the right side of chest of the deceased and the accused did not take undue advantage of the situation. In these circumstances, Hon''ble the Supreme Court has upheld the judgment of the High Court holding the accused guilty for the offence punishable under Section 304 (2) of IPC, but the facts are different as in the instant case, the accused was having doubts about the character of his wife, he was intended to kill her, he repeatedly fired gunshots on her. Several gunshot injuries were found on the body of the deceased, blackening and tattooing was also present, which shows that the gun shots were fired from a close distance. Dr. Chouhan in his unchallenged testimony has clearly opined that the injuries caused to the deceased were sufficient to cause death in the ordinary course of nature. Therefore, there is clear and unambiguous evidence to reveal intention, preparation and meditation to cause death of his wife. Therefore, the authority cited by the learned counsel for the appellant is of no avail.

On a consideration of the entire material before us, we have no hesitation in upholding the view taken by the trial Court with regard to the offence committed by the accused and his conviction for that offence. We see no substance in the appeal filed by the accused and find no reason to reverse the conclusions arrived at by the trial Court with regard to the offence committed by the accused.

In the result, we uphold the judgment and order of conviction and sentenced passed by the trial Court. The present appeal is devoid of merit, liable to be and is dismissed hereby.