Ghanshyam vs State of Madhya Pradesh

G.D. Saxena, J.—This appeal u/s 374(2) of the Criminal Procedure Code 1973 preferred by the accused/appellant is directed against a Judgment dated 31st July 2007 delivered in Sessions Trial No. 116/2006 by the Sessions Judge Datia (M.P.), convicting thereby the appellant for causing murder of Laxman, son of Har Prasad Jatav, which is an offence punishable u/s 302 of I.P.C. and sentencing him to undergo imprisonment for life with a fine of Rs. 10,000/-, in default of payment of which to suffer additional rigorous imprisonment of two years. Briefly narrated the prosecution case is that on 22nd October 2006 at about 7 p.m., in village Padari, Police Station, Pandokhar district Datia, Laxman (since deceased) and his wife Smt. Kunti (PW-4) were returning back to their residence from cattle-stall, situated at some distance. When Laxman alongwith his wife reached near the house of Gyan Singh Jatav, accused also reached there. When the deceased demanded money borrowed to the accused for business, hot talks took place between them including a scuffling. After hearing voice of quarrel, Nathuram (PW-5) uncle of deceased and Babulal (PW-6) brother rushed to the spot. At that moment, accused took out his county-made pistol and fired a shot which bullet which hit the scalp of deceased causing severe injuries. Laxman fell down on the earth and died instantaneously on the spot. On the day of incident, in night at 11 p.m., Babulal (PW-6) brother of the deceased lodged the F.I.R. at Police Station Pandokhar upon which a Crime No. 148/2006 and Marg Report (Ex. P/14) at No. 25/2006 were registered. On next day in the morning, the investigation and inquiry were set in motion. After issuing the notices (Ex. P/5) the witnesses were invited to join the investigation on the spot. The memo of dead body (Ex. P/6), spot map (Ex. P/7), seizure memo of articles from the spot (Ex. P/9) were prepared. Postmortem on the dead body was performed. The case-diary statements of the eye-witnesses and material witnesses were taken. Accused was arrested and weapon of crime was recovered. The articles of crime were chemically examined in the State Forensic Science Laboratory. After inquiry and investigation, the charge-sheet was filed against the present accused. On committal, the Sessions trial commenced and after recording the evidence, the accused-appellant was convicted and sentenced for commission of offence u/s 302 of I.P.C., hence this appeal.

It is contended by the learned counsel appearing for the appellant that the judgment of conviction and sentence recorded by the Trial Judge is against the facts and the law, hence, same is liable to be set aside. It is pointed out that the eye-witnesses in this case are related and they are not at all worthy of credence. Particularly looking to the omissions and contradiction contained in the statements of eye-witnesses and their case diary statements, their evidence seems to be wholly unreliable. Thus, it is contended that the prosecution has examined only interested witnesses in this case and no independent witness was examined to prove the guilt against the accused-appellant. It is lastly contended that the trial Judge has erred to follow the settle proposition of law that even if entire prosecution case is taken to be true, the guilt of the appellant would come under culpable homicide not amounting to murder punishable u/s 304 of I.P.C. Hence, it is prayed that by allowing the appeal, the accused be acquitted of the charge.

The learned Public Prosecutor appearing for the respondent/State, on the other hand, supported the impugned judgment and contended that there is no illegality or perversity in the findings so arrived at by the learned trial court. Hence, it is prayed that the appeal be dismissed.

Heard the learned counsel for the parties and also perused the impugned judgment and the evidence on record.

The question to be considered is whether the accused-appellant has done an act by doing which he has caused the death of the deceased.

To prove the charge for commission of offence punishable under Sections 302 of I.P.C., the prosecution has examined as many as ten witnesses including eyewitnesses, namely, Smt. Kuntibai (PW-4), wife of deceased, Nathuram (PW-5) and Babulal (PW-6), brother of the deceased.

Smt. Kuntibai (PW-4) deposed that on next day of last Deepawali Festival at about 7.00 p.m., in the evening she and her husband Laxman went to their cattle-stall to tie their cattle. As they were returning back to their residence, at the door of house of Gyan Singh, accused-appellant Ganshyam met them. She stated that prior to commission of the incident, there were some altercations took place between the accused and deceased over returning the money borrowed by the deceased to the accused and thereafter being annoyed, the appellant fired a shot by his country-made pistol at the deceased causing serious injuries. Laxman fell down on the earth and died instantaneously. After committing incident, the accused fled away from the spot. She stated that at the time of incident, Santosh, son of Gyan Sing, Kamal and Nathu Singh, her uncle-in-law reached the spot. In her cross-examination, she denied the defence put forth by the accused that she on hearing voice reached the spot and someone else in a crowd fired and killed her husband and she falsely implicated the accused in the alleged incident. She categorically deposed that at the time of incident, she was with her deceased-husband and she watched the entire incident. She stated that the accused after causing firearm injury by country-made pistol, pushed her down on the ground and fled away from the spot.

Nathuram (PW-5) deposed that near about 8-9 months ago, on the last Deepawali Festival days in the evening, when deceased and his wife Kunti were returning back to their residence after tying their buffaloes in a cattle-stall, on hearing voice on the way, he rushed to the place and saw that accused Ghanshyam after firing at Laxman was running away from the spot. The firearm injury hit the head of Laxman, who fell on the ground and subsequently died. He stated that at the time of incident, Kunti wife of Laxman was with him. There was a dispute of lending money between the deceased and the accused. In cross-examination, the witness admitted that his eye sight is weak and on the day of incident, there was raining and dust-storm. However, he categorically deposed that he saw the accused causing injury by firearm and before the incident the accused and deceased were quarrelling with each other.

Babulal (PW-6) deposed that on 22nd October 2006 at about 7 p.m., his brother Laxman with his wife Kunti went to their cattle-stall for milking. At the time of incident due to raining, he came to his house. On hearing noise of quarrel, he at first climbed on the roof and thereafter rushed to spot and saw that there was a firing made on Laxman and Laxman was lying dead on the ground after sustaining gunshot injury. Kunti, wife of deceased was weeping. He went to the police Station and lodged the FIR. Thereafter, the police reached the spot and after serving notice (Ex. P/5), the memo of dead body (Ex. P/6) was prepared in his presence. The prosecutor declared him hostile because he did not depose whether he saw from the roof to accused Ghanshayam causing gunshot injury on the body of deceased Laxman, his brother. But he admitted that in the FIR lodged by him, he mentioned this fact that the accused caused gunshot injury on the body of Laxman.

Dr. M.M. Shakya (PW-2), deposed that at the relevant period, he was posted and discharging his duty as a Medical Officer in the Community Health Centre, Bhander District Datia. On 23rd October 2006, at 11-20 a.m., he performed autopsy on the body of Laxman, son of Harprasad Jatav, resident of village Padrikala, which was brought by a Constable No. 558 Umashankar of Police Station Bhander and identified by Babulal, elder brother of deceased. On examination, he found the following injuries:-

(i) Wound of entry of size 2 cm. x 2 cm. 12 cm. over the right side on forehead. Led part situated piercing in the anterior lobe of brain with damage of brain. (Laceration) tissue with fracture of frontal bone; and

(ii) Wound of exit on left fragmented broken pieces of skull bone, irregular shape with large width 8 cm. x 8 cm.

According to the doctor, these injuries were caused by firearm within 24 hours. They were ante-mortem in nature and were dangerous to life. The doctor opined that the cause of death of Laxman was laceration of brain tissues due to firearm injury which led to sudden cessation of the brain functions and fracture of skull bone with haemorrhage. Mode of death was coma. Duration of death was within 24 hours prior to conduction of postmortem. Death was homicidal in nature. Postmortem report is Ex. P/3, written and signed by him. Clothes after removing from the dead body were sealed and handed over by the witness to the concerned Police Constable for chemical examination.

M.B. Tiwari (PW-10), deposed that at the relevant time he was posed as Assistant Sub Inspector at Police Station Pandokhar. He investigated into Marg No. 25/2006. He deposed that on 22nd October 2006 at about 11 p.m., in night, he wrote F.I.R. (Ex. P/4) on an oral report of Babulal and registered it at Crime No. 142/2006 against accused Ghanshyam. Thereafter, he also wrote Marg Repot (Ex. P/14) and also registered Marg No. 25/2006. He sent the counter foil of FIR to the concerning Magistrate without fail. On 23rd October at about 7-40 a.m., in the morning he began with the investigation as well as Marg inquiry. He issued the inquest memo (Ex. P/5) to the witnesses and in their presence he prepared the memo of dead body (Ex. P/6). He prepared the spot map (Ex. P/7). Thereafter he seized the blood stained soil scraped from the cemented road and simple soil scraped from the road alongwith one pair of blue coloured Hawai Chappals and the scratched part of the wall where the bullet hit vide seizure memo (Ex. P/ 9). He sent dead body for postmortem by memo (Ex. P/2) through Police Constable Uma Sharan Prasad Gupta. He also recorded the case diary statements of the witnesses on the same day. On 24th October 2006, he arrested accused by seizure memo (Ex. P/10) and in custody the accused informed about the weapon of crime (country-made pistol) and one empty cartridge. He prepared the memorandum of the said information u/s 27 of the Evidence Act vide Ex. P/11 and on production of the firearm and empty cartridge, he seized those articles from the roof of the house belonging to accused vide Ex. P/12. He, by issuing letter to Superintendent of Police Datia (Ex. P/15) sent all the articles seized from the spot, received from the hospital, and seized from the accused in a sealed cover for their chemical examination and Firearm Expert Examination to the Director State Forensic laboratory Sagar. He received the report (Ex. P/ 16) from the Chemical Examiner as well as the report from Firearm Expert of State Forensic Laboratory Sagar. He also obtained the sanction order u/s 39 of the Arms Act from the District Magistrate Datia for prosecution of the accused for commission of offence u/s 25(1)(1B) of the Arms Act.

The report (Ex. P/17) of the Firearm Expert of the State Forensic Science Laboratory reveals that (i) the country-made pistol marked as Article A-1 which is meant for firing 315"/8 mm bore cartridge was in a workable condition (ii) Article EC-1 one empty cartridge 8 mm bore KF was said to be fired from the said country-made pistol marked as Article A-1.

On considering the entire scenario of present case it appears that at the time of incident, the deceased and his wife Smt. Kunti were returning from their cattle-stall and on the spot just in front of the door of Gyan Singh, accused Ghanshayam met Laxman and his wife. On previous money transaction, firstly there was a hot exchange of words between the deceased and accused. Thereafter accused fired by his county made pistol at the deceased and then fled away. This incident took place on the road in front of house of Gyan Singh. Nathuram (PW-5) deposed that on the day of incident he was in his residence and on hearing some voice, he rushed to the spot and saw that accused Ghanshyam after firing at Laxman was running away. At that time Smt. Kunti wife of deceased was with the deceased. He also heard about some dispute on previous money transaction between the deceased and accused. So, his testimony do not affect adversely the prosecution case on the ground that his eye sight was weak and when the incident occurred there was raining and whirlwind. His presence on the spot during incident is undoubtedly proved. Babulal (PW-6), brother of the deceased who lodged the FIR (Ex. P/4) in police station Pandokhar has improved his version in court statement and deposed that at the time of incident he was in his residence and on hearing noise he climbed on the roof and then saw that there was some exchange of hot words between the accused and deceased. He thereafter step down and rushed to the spot where he saw that Laxman was shot dead by accused and the wife of Laxman was weeping on the spot. He did not see the incident of firing by accused on the deceased though he narrated full details in his FIR (Ex. P/4). He was declared hostile on that ground. Despite that, the presence of Smt. Kunti (PW-4) on the spot alongwith the deceased cannot be discarded being natural. No doubt being legally weeded wife to the deceased, she was related to deceased but there was no evidence on record to prove previous enmity with accused. On the contrary, her statement appears to be quite natural and is also supported by the account of other material eye-witnesses as well as medical evidence, recovery of weapon and the Firearm Expert report (Ex. P/17). Thus, it is beyond doubts proved that accused Ghanshyam killed the deceased by gunshot injury with his country-made pistol and caused his death on the spot.

The intention or knowledge necessary in order to render killing culpable homicide must be clearly proved by the prosecution which can usually be done by proof of the circumstances which prove the act or omission in question for the presumption is that a man knows the probable result of his conduct. At this juncture it would be relevant to reproduce the relevant law.

Section 300 Exception- Where culpable homicide is not murder:

Exception 1: Culpable homicide is not murder if the offender whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:

Firstly - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly - That the provocation is not given by anything done in the lawful exercise of the right of [private defence.

Explanation- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

In the case of Laxminath Vs. State of Chhattisgarh, , the Hon. Apex court held:-

In the scheme of the IPC culpable homicide is genus and ''murder'' its specie. All ''murder'' is ''culpable homicide'' but not vice-versa. Speaking generally, ''culpable homicide'' sans ''special characteristics of murder is culpable homicide not amounting to murder''. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, ''culpable homicide of the first degree''. This is the gravest form of culpable homicide, which is defined in Section 300 as ''murder''. The second may be termed as ''culpable homicide of the second degree''. This is punishable under the first part of Section 304. Then, there is ''culpable homicide of the third degree''. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

Again, in the case of A. Maharaja Vs. State of Tamil Nadu, the Apex court held:

The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men''s sober reason and urges them to do deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A ''sudden fight'' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender''s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ''fight'' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ''undue advantage'' as used in the provision means ''unfair advantage.

In the light of the aforesaid discussions on the factual and legal aspects of the matter, it appears from the ocular and medical evidence on record that on the date of incident firstly there was a dispute on previous money transaction which later on turned into scuffling between the accused and deceased and after that the accused who was having country-made pistol with cartridges having knowledge, as it appeared, that the result of his act would be man slaughtering, used the weapon and caused instantaneous death of the deceased on the spot. Thus, it appears that the accused due to grave and sudden provocation was deprived of self-control and therefore caused death of deceased by gunshot injury inflicting on head which became fatal and was the direct result of instantaneous death. Under the facts and circumstances of the present case, the appellant is proved to have committed the offence of culpable homicide without premeditation in a sudden fight and in the heat of passion, which is punishable u/s 304 Part-I of I.P.C.

Accordingly, the conviction of the appellant is altered from Section 302 of I.P.C. to section 304 Part-I of I.P.C. The findings of the trial court in holding the appellant guilty of offence of murder punishable u/s 302 of I.P.C. are set aside and the appellant is held guilty for the commission of offence of culpable homicide not amounting to murder, which is an offence punishable u/s 304 Part-I of I.P.C. and accordingly sentenced to undergo rigorous imprisonment of ten years with a fine of Rs. 25,000/- (Rs. Twenty Five Thousand only). In case of failure to deposit the fine amount, the appellant shall suffer additional rigorous imprisonment of four years. The fine amount shall be deposited within a period of three months from the date of this judgment and in case of failure to deposit same it shall be recoverable from the properties of the accused u/s 421(1) proviso. It is further directed that the fine amount, if any, deposited by the appellant in the trial court, shall be adjusted from the amount enhanced by this court. The fine amount deposited/recovered from the properties shall be awarded to the next kins of deceased Laxman. The period of detention, if any undergone by the accused during investigation, inquiry or trial of the case and before the date of such conviction shall be set off against the term of sentence of imprisonment imposed on him by this court. In the result, the appeal stands partly allowed in the manner indicated above.