Shanker vs State Of Rajasthan

The present criminal appeal has been preferred by the accused-appellant against the judgment and order of conviction dated 21.01.2011 passed by the learned Additional Sessions Judge (Fast Track), Dungarpur Camp Sagwara, District Dungapur in Sessions Case No. 06/2010 whereby the accused-appellant has been convicted and sentenced as under :-

Offence

Sentence

U/s 302 IPC

Life Imprisonment with fine of Rs. 5,000/-, in default of payment of fine to further undergo 6 months' additional S.I.

U/s 27 Arms Act

5 years' R.I. and fine of Rs. 5,000/-, in default of payment of fine to further undergo 6 months additional S.I.

All the sentences were ordered to run concurrently

The prosecution story emanates from the written report (Ex.P/1) filed by Lakhma (P.W. 1) before the Police Station Chitari, District Dungarpur wherein it was stated that on 28.10.2009 at around 5 O'clock in the evening, Hakra and his brother-in-law Shanker came to his house to enquire about his well being. Shanker was carrying a muzzle loading gun with him. Both of them were talking in a high tone. They sat on the cot in his house. He served water to them. They asked about his well being and smoked Hukka. While sitting in the courtyard on a cot, Shanker and Hakra were discussing about seeds of chickpeas. When he went to fetch a tumbler (jug) of water, Hakra got up from the cot for leaving the place. Shanker stopped him and fired the gunshot at Hakra. The pellets hit on the abdomen of Hakra exposing his internal organs with profuse bleeding. Hakra died on the spot. Shanker fled from the place of incident along with the gun. The incident was witnessed by his daughter Kamla. After the incident, when he raised alarm then, Badri, Ganesh and Raman came at the place of incident. They saw Shanker running away from the spot. They followed Shanker and nabbed him. The dead body of Hakra was lying at the place of incident. The wife of Hakra, namely, Shanta was informed, who came at the place of incident and stated that at around 3.00 P.M., her brother Shanker came to their house along with gun and asked for the seeds of chickpeas. She refused to give the same then, both Shanker and Hakra left the place saying that they were going to the house of Lakhma. Shanker fired and killed Hakra in a fit of rage.

On this report, a formal F.I.R. No. 208/2009 was registered at Police Station Chitari, District Dungarpur for the offence under Section 302 of I.P.C. against the accused-appellant. During the course of investigation, the police arrested the accused-appellant on 29.10.2009 and as the fired muzzle loading gun was recovered from the accused, Section 27 of the Arms Act was added in the matter.

After conclusion of investigation, the police filed charge-sheet against the accused-appellant for the offences under Section 302 of I.P.C. and Section 27 of the Arms Act.

Learned trial court framed, read over and explained the charges for the offences under Section 302 of I.P.C. and Section 27 of the Arms Act to the accused-appellant, who pleaded not guilty and sought trial.

During the trial, the prosecution examined as many as 18 witnesses and Ex.P/1 to Ex.P/20 documents were got exhibited.

The accused-appellant was examined under Section 313 of Cr.P.C. and he was confronted with the evidence adduced against him during the course of trial to which he denied and stated that he had been falsely implicated in the case. There was a boat near the house of Hakra, by which he was coming to his house. He saw Lakhma firing gunshot at Hakra. The gun belonged to Lakhma. His gun was not in serviceable condition for last 15 years and was broken. Hakra's son forcibly confined a girl of Badgama Village and for this reason, Lakhma fired a gunshot at Hakra, due to which he died. He did not fire the fatal gunshot at Hakra, his brother-in-law as the relationship between them was cordial. However, the accused-appellant did not produce any oral evidence but got exhibited documents Ex.D/1 & Ex.D/5 in his defence.

Learned trial Court, after hearing the arguments from both the sides, convicted and sentenced the accused-appellant as above vide judgment dated 21.01.2011. Hence this appeal.

We have heard the arguments advanced by learned counsel for the accused-appellant and the learned Public Prosecutor and have carefully and threadbare perused the entire evidence available on record.

Learned counsel for the accused-appellant has vehemently contended that the so-called eye-witnesses P.W. 1 - Lakhma and P.W. 4 - Kamla did not actually see the incident. In the statement of P.W. 1 - Lakhma, it has come on record that he had gone to fetch water while Hakra and Shanker were engrossed in heated altercations and the gunshot was fired. P.W. 4 - Kamla stated that she had gone to the shop of Kaliya for purchasing rice and returned home at around 6.00 - 6.30 P.M. As per him, these admissions in the testimony of both the witnesses relied upon by the learned trial court as eye-witnesses makes their evidentiary worth useless and the same is required to be discarded.

He further submits that there are material contradictions and omissions in the statements of the prosecution witnesses and therefore also, their testimony is not worth reliance and credence.

Learned counsel for the defence on the strength of these arguments urges that the prosecution could not prove beyond reasonable doubt that the present appellant was responsible for the murder of Hakra and therefore, learned trial court committed grave factual and legal error while convicting and sentencing the accused-appellant for the alleged offences as above vide Judgment dated 21.01.2011 and thus, he is entitled to be acquitted of the charge levelled against him.

In the alternative, learned counsel for the accused-appellant contends that because of heated altercations between Hakra and Shanker for giving him seeds of chickpeas, the gunshot was fired in the heat of the moment without any premeditation and without there being any intention to kill Hakra. He, therefore, prays that conviction of the accused-appellant should be altered to Section 304 Part - I of I.P.C. instead of Section 302 of I.P.C.

Per contra, learned Public Prosecutor has contended that the prosecution has been able to prove the allegations levelled against the accused-appellant beyond all shadow of doubt. The witnesses P.W. 1 - Lakhma and P.W. 4 - Kamla gave cogent, clinching and reliable evidence and the testimony of these eye-witnesses clearly establishes the fact that accused-appellant inflicted gunshot injury to the deceased Hakra which proved instantaneously fatal. He further submits that the incident took place in the house of Lakhma and kamla, therefore, their presence during the time of the incident was absolutely natural. There is no reason to disbelieve the testimony of P.W. 1 - Lakhma and P.W. 4 - Kamla. Besides this, P.W. 2 - Shanta also stated that her husband Hakra and her brother Shanker went to the house of Lakhma together to know about his well being, which shows that Shanker and Hakra were together at the time of incident. The ocular evidence of these witnesses is amply corroborated from the medical evidence in the shape of statement of P.W. 17 - Dr. Hari Charan Meena and the postmortem report (Ex.P/14). The F.S.L. Report (Ex.P/20) shows that the S.B.M.L. Gun No. 269 was serviceable. The examination of barrel residue indicates that the S.B.M.L. Gun had been fired. The partially burnt Banyan having residue of combustion product of black gun power and lead metal shows that the gun which was having license in the name of Shanker was fired, which fortifies the statements of the eye-witnesses. He further submits that the learned trial court, after evaluating the entire facts and evidence, came to the only possible and logical conclusion and rightly convicted the accused-appellant for the offence alleged in the present case vide Judgment dated 21.01.2011, which does not warrant any interference by this Court.

We have considered the submissions made at the bar and minutely gone through the record of the learned trial court as well as judgment dated 21.01.2011 impugned herein.

On a close reading of the testimony of prosecution witnesses particularly P.W. 1 - Lakhma, we find that Shanker and Hakra went to the house of Lakhma to know about his well being. While coming to his house, they were talking in a high tone. They sat on a cot in the courtyard. Following the heated altercation, Shanker fired a gunshot from a close range at the abdomen of Hakra who instantaneously died on the spot. He further stated that exchange of hot words was in connection with giving seeds of chickpeas to Shanker. His daughter Kamla also witnessed the entire incident. No sooner, the accused fired the gunshot at Hakra, he raised an alarm, upon which, Raman, Ganesh and Badri came at the spot. The wife of the deceased, namely, Shanta also came at the spot upon being informed. He further stated that during the course of investigation, the police prepared different memos on which he affixed his thumb impressions. Nothing significant was elicited during the cross-examination of this witness so as to doubt the credibility or veracity of the deposition made by him in the examination-in-chief.

P.W. 2 - Shanta, wife of the deceased Hakra and sister of the accused-appellant Shanker, stated that her brother Shanker came to her house and after having a cup of tea, he asked for seeds of chickpeas but she refused. Thereafter, her husband Hakra and Shanker went to the house of Lakhma to know about the status of his health. On getting information at around 6.00 P.M. that Shanker had fired gunshot at her husband, she ran towards the house of Lakhma where she saw her husband lying dead due to the firearm injury caused by Shanker.

P.W. 3 - Ganesh stated that he heard the noise of hue and cry from the house of Lakhma. When he reached there, he saw Hakra lying dead in his courtyard. They followed Shanker who ran away from the place of incident with the gun and nabbed him.

P.W. 4 - Kamla, who is daughter of Lakhma (P.W. 1), stated that at around 5.00 P.M., Shanker and Hakra came to their house and sat on the cot. Her father went to get water for them. Shanker was carrying a gun with him. Shanker fired at Hakra who died because of gunshot injury caused by Shanker. Shanker ran away from the spot and on alarm being raised by his father, Badri, Ganesh and Raman came at the scene of occurrence. During the cross-examination, she stated that she went to the shop of Kaliya at 5.00 P.M. and came back at around 6.00 - 6.30 P.M. after purchasing the rice.

P.W. 13 - Badri and P.W. 14 - Raman also stated almost on the same lines as deposed by P.W. 3 - Ganesh.

P.W. 17 - Dr. Hari Charan Meena who conducted the autopsy upon the dead body of the deceased Hakra, stated that the deceased suffered a hole of 2x2 cms. just above the umbilicus. There was blackening of 10 cms. around all sides of the injury with black powder spread over it. He further stated that the cause of death of the deceased was injury caused on the large and small intestine tearing the same.

P.W. 18 - Sawai Singh is the police officer who conducted investigation of the matter and stated that he prepared the site plan, recorded statements of the witnesses, effected recoveries, collected samples and after completion of investigation, as prescribed by law, submitted the report before the court of competent jurisdiction.

The postmortem report is Ex.P/14 wherein the cause of death of Hakra is shown as injury (wound) in the abdomen due to firearm. The arrest memo is Ex.P/17 dated 29.10.2009. The information given by the accused-appellant under Section 27 of the Indian Evidence Act is Ex.P/18, in pursuance of which, the gun along with license in the name of Shanker was recovered vide Recovery Memo Ex.P/7. The F.S.L. Report is Ex.P/20 wherein the S.B.M.L. gun is shown serviceable and recently fired. The partially burnt banyan is shown to have residue of combustion product of black gun power and lead metal.

Having minutely appreciated the testimony of P.W. 1 - Lakhma and P.W. 4 - Kamla, we find the same to be cogent, reliable, unshaken in cross-examination and clinching in nature. Both are eye-witnesses who categorically stated that gunshot was fired by Shanker at Hakra from a close range. There is no inconsistency in their testimony wherein they have clearly deposed that while Shanker and Hakra were sitting in their courtyard, Shanker asked for the seeds of chickpeas and heated arguments were exchanged between them in this regard. While Hakra was leaving the place, Shanker fired gunshot from a close range on the abdomen of Hakra. The injury suffered by Hakra on the abdominal region caused profuse bleeding. He fell on the ground and died instantaneously on the spot. The presence of P.W. 1 - Lakhma and P.W. 4 - Kamla is quite natural as Shanker and Hakra came to their house to enquire about the well being of Lakhma. There is no reason for us to disbelieve the clinching and convincing testimony of these two witnesses i.e. P.W. 1 - Lakhma and P.W. 4 - Kamla. The statements of P.W. 3 - Ganesh, P.W. 13 - Badri and P.W. 14 - Raman show that when they reached at the spot, Shanker was running away from the place of incident with the gun. They followed Shanker and nabbed him. Thus, the presence of Shanker and Hakra in the house of Lakhma is proved beyond doubt which is fortified from the statement of his sister P.W. - 2 Shanta as well. The testimony of these eye-witnesses is corroborated in material particulars by the medical evidence wherein the cause of death is shown to be close range firearm injury. The S.B.M.L. gun which was recovered at the instance of the accused-appellant was licensed to him and the F.S.L. Report shows that the gun was serviceable and was freshly fired. In these circumstances and discussion made above, it has been proved beyond all shadows of doubt that it was none other than the accused-appellant Shanker who fired the fatal gunshot from his licensed single barrel muzzle loading gun leading to the instantaneous death of Hakra in the house of Lakhma.

We also note that a totally false plea has been taken by the accused-appellant in his statement under Section 313 of Cr.P.C. claiming that it was Lakhma who fired gunshot at Hakra and his gun was not in a serviceable condition for last 15 years. The report of the F.S.L. clearly demolishes and falsifies the defence taken by the accused-appellant. In our view, the plea raised by the accused-appellant under Section 313 of Cr.P.C. is nothing but false and concocted.

The contention of the learned counsel for the accused-appellant that the conviction of the accused-appellant should be converted from one under Section 302 of I.P.C. to under Section 304 Part-I of I.P.C. is noted to be rejected as the provocation was volunteered by the accused-appellant Shanker and the deceased Hakra was not responsible for the same. There cannot be two opinions that the accused intended to kill Hakra as he fired at him from a point blank range. Therefore, the accused-appellant Shanker having fired the gunshot from the close proximity at the deceased Hakra, we are not inclined to accept the contention of the learned counsel for conversion of conviction from one under Section 302 of I.P.C. to under Section 304 Part-I.

The Hon'ble Supreme Court in the case of State of Uttar Pradesh Vs. Faquirey (Criminal Appeal No. 1842 of 2012) decided on 11.02.2019 has observed as under :-

"7. According to Exception I to Section 300 IPC, culpable homicide is not murder if the offender causes the death of the person who gave the provocation, whilst deprived of the power of self-control by grave and sudden provocation. It would be relevant to refer to the First Proviso to Exception I which provides that the provocation should be one which is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. No overt act is alleged against the deceased by which it can be stated that the Respondent was provoked. From the proved facts of this case it appears that the provocation was voluntary on the part of the offender. Such provocation cannot come to the rescue of the Respondent to claim that he is not liable to be convicted under Section 302 IPC."

In view of discussion made above, we are of the considered opinion that the judgment dated 21.01.2011 passed by the learned trial court convicting and sentencing the accused-appellant for the offence under Section 302 of I.P.C. deserves to be upheld.

Resultantly, the criminal appeal fails and is dismissed as such. The judgment and order dated 21.01.2011 passed by the learned trial court is upheld. The record of the trial court be returned forthwith.