Dashrath Singh vs State of M.P.

In the present appeal a challenge has been made to the order of conviction and sentence passed by the learned Additional Sessions Judge,

Sihora, District Jabalpur in S.T. No.532/2003 [State vs. Dashrath Singh] on 26-04-2004 whereby the accused-appellant has been convicted

under Section 302 of the IPC and sentenced to undergo imprisonment for life; and also under Sections 25 and 27 of the Arms Act, 1959 to

undergo rigorous imprisonment for 2 years and fine of Rs.1000/-, in default of payment of the fine amount, to suffer further rigorous imprisonment

for three months with the stipulation that both the sentence would run concurrently.

The prosecution case, succinctly stated, is that on 12-5- 2003 at about 5 o''clock in the evening Ravi Singh informed Raghunath Singh (PW-5),

brother of the deceased - Shriram that the deceased was lying injured near the `Jamun'' tree. Raghunath Singh, Ravi Singh and other villagers went

to the spot and saw that Shriram was lying seriously injured with gunshot injuries over his shoulder. There was profuse bleeding. He was

immediately taken for treatment but while on way to Gosalpur he succumbed to injuries. Report was lodged by Raghunath Singh (PW-5) at the

Police Chowki, Gosalpur, vide Ex.P/5. On 13-5-2003 Raghunath Singh gave his statement stating that Raju Singh (PW-6), Mukesh Singh (PW-

7), Panji (PW-8) and Guddu had taken food on the spot and they may have certain informations. They are the eye witnesses of the incident,

according to the prosecution. Their statements were recorded after more than 24 hours. These witnesses have stated that after witnessing the

incident they were so terrorized, therefore they had gone to the jungle and remained there even in night. Next day they disclosed the incident to the

brother of the deceased and police. After recording their statement, the accused-appellant was taken into custody and on his discovery statement,

a gun was seized. After obtaining sanction from the competent court of jurisdiction the accused-appellant was also prosecuted under the Arms

Act.

Postmortem of the deceased was conducted by Dr. D.N. Pathak (PW-3). To prove the autopsy report he was also examined wherein he had

found that the cause of death was on account of gunshot injury. The seized gun was sent for ballistic examination and the gun was found to be in

working condition. Since there was no recovery of any bullet or pellet either from the body of the deceased or from the spot, therefore, it is

contended that the prosecution could not prove that the injury was caused to the deceased by the seized weapon itself.

After investigation charge-sheet was filed. The accusedappellant abjured the guilty and pleaded for trial. The learned Trial Court appreciating the

material evidence in proper perspective, convicted and sentenced the accused-appellant as have been indicated hereinbefore.

Conviction of the accused is based on the testimony of Raju (PW-6), Mukesh Singh (PW-7) and Panjilal (PW-8). Counsel for the appellant

submitted that the prosecution could not prove its case beyond any doubt. It is strenuously urged by him that the socalled eye witnesses, namely,

Rau, Mukesh Singh and Panjilal had remained silent for a long period after the incident. It is also contended that all these three witnesses are co-

relatives of the deceased. Their conducts make their testimony unreliable, as it was not trustworthy that the three witnesses were so terrorized, they

rushed to the forest from the spot and remained over there for two days. Thereafter, they returned and straightforward informed the brother of the

deceased, Raghunath Singh (PW-5). The incident was not disclosed to any other villager.

It is also submitted by him that there is no seizure of bullet or pellet either from the dead body or from the spot. The prosecution could not prove

that the gun seized from the appellant was utilised to cause injury to the deceased. It is asseverated that as no recovery of pellet or bullet has been

proved either from the deadbody or crime spot, therefore, it is not established that the seized gun was used.

Controverting the aforesaid submission, counsel for the State submitted that the conviction and sentence pronounced by the learned Trial Court

is legal and valid. The prosecution has successfully proved its case on the anvil of the testimony of Raju (PW-6), Mukesh Singh (PW-7) and Panji

Singh (PW-8).

We proceed to examine the testimony of the eye witnesses, Raju, Mukesh Singh and Panji Singh. They have stated that on 12-5-2003 along

with Guddu alias Balwant after fishing and cooking when they were eating food at about 01:30 PM in the afternoon, the accused Dashrath Singh

along with Shriram came over there and they asked for food which was provided to them. Both of them had also consumed liquor. While eating

Shriram said that he would beat Panji, thereon the accused told him that he would not assault him, then Shriram started hurling abuses. Raju Singh

and another asked Dashrath not to quarrel, at which Dashrath got enraged and started abusing them and told them not to come in between. After

this incident when these witnesses were to go away and hardly walked 8-10 steps, they saw that the accused Dashrath Singh fired the gun on the

shoulder of Shriram, who fell down. Thereafter, and Dashrath Singh threatened Raju Singh and others. Therefore, having been terrorized they had

gone to the jungle and even remained there over night. They returned on the next day in the evening , i.e., 13-5-2003 and intimated brother of the

deceased about the incident.

Counsel for the appellant submitted that testimony of these witnesses is not reliable, as their statements were recorded after more than 24 hrs.

and that too in the Police Station by the Police. The gun was seized on 17-5-2003 on the discovery statement of the accused in presence of two

witnesses, namely, Ramnaresh (PW-4) and Rajendra Prasad Bilha (PW-9). They were declared hostile, however they admitted his signatures on

the memorandum, Ex.P/3. Prosecution witness Rajendra Prasad Bilha (PW-9) also turned hostile, but admitted his signatures on the memorandum.

Apart from this, seizure of the weapon has been proved by the Investigating Officer - N.P. Singh Chouhan (PW-12). The seized gun was sent for

forensic examination to the FSL and the FSL report is Ex.P/14. Senior Scientific Officer in his report has stated that the seized gun is a country-

made one barrel gun and was in working condition, however, he could not give any opinion about the period of last fire made from it. In the

present case no bullet or pellet was recovered either from the dead-body or the scene of occurrence. PW-3, Dr. D.N. Pathak, who had

conducted autopsy of the deceased and found gunshot injury on the left shoulder of the size : 2.5 cm x 1.5 cm. There was blackening and also an

exit wound on the left shoulder of the deceased. The cause of death was haemorrhage and shock, as a result of injuries received by the deceased.

As per postmortem report, the injuries may have been caused from a close distance. Medical evidence reveals that the injuries on the deceased

were compatible with the weapon used.

Counsel for the appellant raised two fold contentions. First, that the testimony of eye witnesses: PW-6, PW-7 and PW-8 is not trustworthy as

their statements have been recorded after more than 24 hours. There conduct is highly suspicious as they had gone to the forest and did not

disclose the incident to any villager even after returning from the forest. The incident had taken place all of a sudden because of wordy altercations

between the deceased and the appellant. He further submitted that the firing was made on the left side of the shoulder of the deceased. Thus, the

conduct of the witnesses cannot be held to be unnatural or suspicious. The delay in recording their statements after 24 hours has been explained by

these witnesses. Their testimony is consistent and coherent. Their testimony cannot be discarded on account of delay and conduct. Thus, the

conduct of the witnesses cannot be held to be unnatural or suspicious. The delay in recording their statements after 24 hours has been explained by

these witnesses. Their testimony is consistent and coherent. Their testimony cannot be discarded on account of delay and conduct. The eye

witnesses : PW-6, PW-7 and PW-8 have deposed that when they had left the place of incident and hardly walked 8 to 10 steps they heard cry of

the deceased for help and saw that the accused-appellant had fired on the shoulder of the deceased. The accused-appellant along with co-accused

had come to the spot and the appellant was armed with a gun, as per testimony of these witnesses, after consuming liquor, there was wordy

altercation and thereafter firing was made by the accused. Admittedly, injury has been found on the shoulder of the deceased. On assimilation of

entire factual scenario and appreciation of evidence brought on record, though there is delay in recording the statements of the so called eye

witnesses, but their testimony cannot be disbelieved and discarded only for the said reason. They have stated that they were threatened by the

accused therefore, they had gone to the forest since they were terrorized, they did not come back to the village. On the next day when they

returned to the village, the incident was narrated to the brother of the deceased and thereafter to the Police.

On appreciation of the testimony of the eye witnesses it is established that the accused and the deceased came together at the spot. There was

hot wordy altercation amongst them. On the spur moment, the accused fired on shoulder of the deceased. The doctor, PW-3 had found gunshot

injury on the shoulder of the deceased. The genesis of the case is that there was no enmity among the accused and the deceased. Both came

together at the spot. They asked for food from the witnesses. They also consumed liquor. Thereafter on wordy altercations the appellant fired on

the deceased on his shoulder. On close scrutiny of the testimony of the eye witnesses : PW-6, PW-7 and PW-8 it cannot be concluded that the

appellant had intention to cause death of the deceased. Taking into consideration of the testimony of the eye witnesses and the medical report, we

are of the view that the appellant had no intention to cause death of the deceased, as the appellant was overpowered by an uncontrollable fit of

anger due to hot wordy alterations and he lost his self-control and fired at the deceased which caused injuries to him and resulted into death. Entire

facts do not conclude that the appellant had intention for eliminating life of the deceased, though he had knowledge of the fatal consequences. In

the similar facts and circumstance, the Apex Court in the case of Gurupal Singh vs. State of Punjab, (2017) 2 SCC 365 has converted the

conviction from Section 302 IPC to Section 304, Part I of the IPC.

On overall considerations of the facts and situations, we are of the view that the conviction of the accused-appellant ought to be moderated to

one under Section 304 Part-I of the IPC. It would meet the ends of justice if the sentence is reduced from life imprisonment to rigorous

imprisonment for 10 years. Conviction and sentence recorded by the learned trial Court under sections 25 and 27 of the Arms Act is maintained.

Ex-consequenti, the appeal is allowed in part. The conviction under Section 302 of the IPC is converted to Section 304, Part I of the IPC and

the appellant is sentenced to suffer rigorous imprisonment for 10 years and fine of Rs.1000/-, in default of payment of fine, further rigorous

imprisonment for three months.