GAURI SHANKAR vs STATE OF MADHYA PRADESH

This appeal has been filed under Section 378(3) of Cr.P.C., being aggrieved by judgment dated 13.01.1994 passed by Second Additional Sessions Judge, Sihore, in Sessions Trial No.104/1987; whereby, learned trial Court has acquitted the respondents for the offence punishable under Sections 307 read with Section 34 of the IPC.

It is important to note that respondent no.3- Ghanshyam has died during the pendency of this appeal. Hence, his name has been deleted vide order dated 07.02.2014 from the array of the respondents.

Brief facts of the case are that on 18.01.1987 at about 09:00 a.m. complainant Kailash Chandra (PW-1) came to his home from market. He found that the respondents were abusing his children and threatened to kill them. Thereafter, the complainant Kailash Chandra (PW- 1) took his 12 bore rifle and proceeded on motor-cycle to "Jeen" along with his son Tarun (PW-3). The respondents followed and caught them. They were armed with sticks. Suddenly, respondent no.3-Ghanshyam snatched his rifle and fired towards them. Complainant Kailash Chandra (PW- 1) and his son Tarun (PW-3) were injured by the pallets (Chharre).

Police came to the spot took them to Police Station and sent them for treatment to District Hospital Sihore. Dehati Nalshi has been lodged by the complainant Kailash Chandra (PW-1). Crime has been registered under Section 307 read with 34 of the IPC against the respondents. After investigation charge-sheet has been filed against the respondent/accused under Section 307 read with Section 34 of the IPC. 04.1 After committal learned trial Court framed charges under Section 307 read with Section 34 of the IPC, against the respondents. The respondents abjured their guilt. They have pleaded that they are innocent and falsely implicated by the complainant due to old enmity. Defence witness has been examined by them.

The learned trial Court has found that testimony of complainant Kailash Chandra (PW-1) and his son Tarun (PW-3) is contradictory with the others. FIR has been lodged belatedly by the complainant Kailash Chandra (PW- 1). Complainant Kailash Chandra (PW-1) and his son Tarun (PW-3) were the aggressors. They deliberately took the fire arm with intention to use it against the respondents. But accidentally, they got injured due to fire of their rifle. Respondents are not liable to injure them.

It was also found by the trial Court that the injury caused to the complainant Kailash Chandra (PW-1) and his son Tarun (PW-3) are not dangerous to their life. Learned trial Court has not relied on the dying declaration of Tarun (Exh. D/4). No cut mark has been found on the pant (Article-D) of Kailash Chandra, which proved that Kailash Chandra has not sustained any injury on his leg. Kailash Chandra (PW-1) and his son Tarun (PW-3) both are father and son and related witnesses. They are an interested witnesses. Other eye witness has not been supported the prosecution case.

In the above circumstances, learned trial Court held that the prosecution has failed to establish the charge under Section 307 read with 34 of IPC against the respondents beyond reasonable doubt. Therefore, they are acquitted from the aforesaid charges.

This appeal has been preferred on the grounds that the learned trial Court has not appreciated the evidence of the independent witness Ramesh. The trial Court erred in holding that the FIR is belated. The complainant has explained the delay. The complainant Kailash Chandra (PW-1) and his son Tarun (PW-3) have received injury. Hence, as priority they were interested in getting first aid relief.

Learned Government Advocate for the appellant- State contended that the injuries caused to the complainant Kailash Chandra (PW-1) and his son Tarun (PW-3) were sufficient to cause the death in ordinary course of nature. The oral evidence has been corroborated by the medical evidence. The trial Court has lost sight of the material evidence produced by the prosecution. It is also contended that the finding of acquittal of the respondents is perverse and contrary to law. Hence, the appellant-State prays to set aside the impugned judgment and the respondent be punished in accordance with law.

It is not in dispute that at the time of incident the complainant Kailash (PW-1) and his son Tarun (PW-3) both were went to Jeen (a place) from their house by motor-cycle. Babu Lal (DW-1) also affirmed the said fact. Further, all the aforesaid witnesses also state that the respondents also came there.

In the cross-examination Kailash (PW-1) explained that where a old building of Jeen factory and a house was situated, which was disputed between the complainant Kailash (PW-1) and respondents. Both the parties claimed their title over it. Kailash (PW-1) and Ganshyam (respondent no.3) both were the real brothers. As per Kailash (PW-1) aforesaid "Jeen" was the land of Jeen factory, which was mutated in the name of respondent no.3-Ghanshyam. The appeal has been filed by the Kailash (PW-1) against the mutation proceedings before the Revenue Court.

As paragraph 18 of the impugned judgment, it is appeared that "Jeen" is very distant place from the houses of complainant and respondents, which indicate that both parties went to that place with some intention. At that time, the complainant Kailash (PW-1) armed with rifle and belt of cartridges. Kailash (PW-1) stated that when they reached on the disputed place at Jeen, the respondent no.3-Ghanshyam snatched and caught hold of his rifle during which the rifle got fired. Second fire caused by the respondent no.3-Ghanshyam towards Kailash (PW-1) and his son Tarun (PW-3), both were father and son and are interested witnesses.

Durga Prasad (PW-4) and Shankar Lal (PW-5) have also stated that after the first fire in the air, Ghanshyam caused second fire in which Tarun (PW-3) got injured. Ramesh (PW-5) corroborated the testimony of Durga Prasad (PW-4). Therefore, the testimony of Kailash (PW-1) and Tarun (PW-3) have been corroborated by the independent witnesses.

In cross-examination Durga Prasad (PW-4) deposed that during the quarrel both the parties claimed for their possession over the disputed house at Jeen. The respondent no.2 was trying to restrain Kailash (PW-1) to enter into the house. Kailash (PW-1) was forcefully entered into the house.

In paragraph 6 of the impugned judgment, it was discussed by the learned trial Court that on the obstruction raised by the respondents, Kailash (PW-1) aimed rifle towards their side. Therefore, rifle snatched by Ghanshyam, fired towards complainant Kailash (PW-1) and Tarun (PW-3).

In the cross-examination Durga Prasad (PW-4) and Ramesh (PW-5) have also deposed such facts. As per the aforesaid independent eye witnesses, the respondent no.3-Ghanshyam deliberately fired the refile second time. In such situation, learned trial Court has properly held that at that time the respondent no.3-Ghanshyam was in fear that Kailash (PW-1) may shoot his son by his rifle. Therefore, in his private defence he used that rifle. Babu Lal (DW-1) has also corroborated the above defence taken by the respondents.

Dr. S.P. Bhargava (PW-16) has examined Kailash (PW-1) and Tarun (PW-3). At that time, Tarun (PW-3) was in conscious and normal condition. He sustained a single lacerated wound with an abrasion. He further found some foreign object in the wound. Dr. S.P. Bhargava (PW-16) clearly indicates that such injury was simple in nature. He has not found any injury on Kailash (PW-1).

After re-appreciation of the whole evidence on record, we also come to the conclusion that such injuries were not caused intentionally or voluntarily by the respondent No.3 to cause the death of complainant-Kailash or his son Tarun. The said injuries were caused during the tussle in private defence. It is also not established that the aforesaid injuries were dangerous for their life in ordinary course of nature. We relied the defence taken by the respondents that the complainant themselves are the aggressors.

Hence, we find the conclusion of the learned trial Court is properly based on the evidence on record. It is neither perverse nor illegal.

In the case of Chinnam Kameswara Rao Vs. State of A.P. [2013 Cr.L.J. 1540], the Supreme Court has held that: "If view taken by trial Court was reasonably possible view. Appellate Court would not reverse view of trial Court under the appellate jurisdiction."

In another case of Hakeem Khan and others Vs. State of M.P. [(2017) 5 SCC 719],the Supreme Court is held that:

"A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact whether it is agreed upon or not by the higher court. The fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court. "

Hence, on the above discussions, we are not inclined to interfere in the findings of learned trial Court. Accordingly, the appeal is hereby dismissed.