STATE OF MADHYA PRADESH versus GANGABISHAN @ VISHNU & ORS. on 27 July 2018

[2018] 9 S.C.R. 349

STATE OF MADHYA PRADESH

v.

GANGABISHAN @ VISHNU & ORS.

(Criminal Appeal No. 2393 of 2009)

JULY 27, 2018

[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]

Penal Code, 1860:

ss. 302/149, 325/149, 147, 148, 440 and 304 (Part I) –Prosecution of nine accused u/ss. 302/149, 325/149, 147, 148 and440 – Injured eye-witness to the incident – Dying declarationrecorded – Conviction by Trial court – High Court acquitted all theaccused except accused No.1 – Conviction of accused No.1 wasaltered to one u/s.304 (Part I) – Appeal by State challenging acquittalorder – Held: Statement of the eye-witness as well as dyingdeclaration of deceased not corroborated by medical evidence – Inthe facts of the case liability cannot be fastened on the respondent-accused (accused Nos. 2 to 9) – In view of medical evidence it isevident that accused No.1 was not having intention to commit murder,but his act was to cause bodily injury which was likely to causedeath – Therefore, conviction of accused No.1 u/s. 304 (Part I) andacquittal of rest of the accused by High Court was justified.

Dismissing the appeal, the Court

HELD: 1. The general statement by PW-1 regardingparticipation of all the accused with different weapons and causinginjury to the deceased as well as to himself is not duly corroboratedby medical evidence of PW-8 and autopsy surgeon PW-7. Theversion of PW-1 is belied by medical evidence. In the dyingdeclaration the deceased has deposed that except accused No.1,he was not knowing as to who had assaulted him but in the samebreath he has stated that he was assaulted by lathi by accusedNo.3 and accused No.2. However, his version is not corroboratedby medical evidence. [Para 7] [353-E-G]

2. The dispute between the parties arose on account ofentrance of cattle and causing damage to the crops, as well as

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Ause of way in which deceased and PW-1 sustained injuries. Takingoverall view of the matter, the High Court has acquitted accusedNos.2 to 9. Insofar as accused No.1 is concerned, his overt act isfully corroborated by the medical evidence, as well as the dyingdeclaration (Ex.P/4). Though, PW-1 sustained injuries causedby hard and blunt object but according to his version, he wasBassaulted by all the appellants, whereas he sustained only fourinjuries and no injury was sustained by him by fire arm or sharpedged weapon. Therefore, it would be difficult to fix the liabilityfor causing injuries to this witness by the respondents.[Para 8] [353-G-H; 354-A-B]

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3. Insofar as the deceased is concerned, he suffered gunshotinjury and entry wound was on back of his left thigh. In view ofthe medical evidence, it would be easy to infer that if accusedNo.1 was having intention to commit murder of the deceased andused fire arm for that purpose, the injury could have been causedDon upper limb, above waist of the deceased. Thus, though theaccused No.1 was not having intention to commit murder of thedeceased but the act was to cause bodily injury which was likelyto cause death. Therefore, the High Court found that he wouldbe responsible for commission of culpable homicide notEamounting to murder punishable under Section 304 (Part I) ofIPC. The High Court after scanning the entire evidence alsoheld that the respondents were not having an intention to commitmurder of the deceased. There is no infirmity in the judgment ofthe High Court. [Para 9] [354-C-F]

FCRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 2393 of 2009.

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From the Judgment and Order dated 06.12.2006 of the High Courtof Madhya Pradesh, Bench at Indore in Criminal Appeal No. 1370 of2001.

Ms. Swarupama Chaturvedi, Niraj Sharma, Ms. Priya Hingorani,Chandra Bhushan Prasad, Kuldeep S. Parihar, H. S. Parihar, Advs. forthe appearing parties.

The Judgment of the Court was delivered by

S. ABDUL NAZEER, J. 1. This appeal by special leave ispreferred against the judgment dated 06.12.2006 passed by the HighCourt of Madhya Pradesh at Indore in Criminal Appeal No. 1370 of2001 arising out of Sessions Trial No. 197 of 2000 passed by the AdditionalSessions Judge, Shajapur, Madhya Pradesh, dated 4[th] December, 2001,wherein the High Court has set aside the judgment and order of convictionof the respondents under Sections 302/149 and 325/129 IPC against allthe respondents except respondent No.1. The respondent No.1 has beenheld guilty under Section 304 (Part-I) IPC and sentenced to undergo tenyears R.I. and fine of Rs.25,000/- and in default to undergo three yearsfurther R.I.

2. Briefly stated the prosecution case is that Dinesh (PW-1) andhis brother Rajesh (deceased) were in their field situated in the forest,for the purpose of watching the crops. At that juncture, the accusedpersons reached over there having lathis and swords in their possessionexcept accused No.1 Gangabishan alias Vishnu, who was having 12bore gun and started assaulting Rajesh with their respective weapons.Accused No.1 caused gunshot injury on the left thigh of the deceasedby 12 bore gun because of which he fell down on the ground. Dineshraised cry. However, no one came to their rescue. Somehow he managedto run away from the scene of occurrence and disclosed about the incidentto Sidhnath, Ramsingh, Gopal Khati and Laxminarayan Khati. They allbrought the deceased Rajesh on a cot from the field and thereafter tookhim in a mini truck. The deceased Rajesh became unconscious. Theaccused persons were also causing damage to the standing crops ofPW-1 by grazing their cattle and the incident occurred because of theobjection being raised by PW-1 in the morning of the same day.

3. The police after registration of the crime and recording of theFIR (Ex. P/1) prepared the inquest. Post mortem examination of thedeceased was conducted by Dr. Kapil Sahay (PW-7). The post mortemreport is Ex. P/10. Dr. Vijaysingh, PW-8 initially examined the deceasedRajesh, the same day and also PW-1. Their MLC reports are ExhibitsP/11 and P/12 respectively. Dying declaration (Ex. P/4) of the deceasedwas also recorded by Tehsildar Shri Purshottam Sharma (PW-2). Afterinvestigation, accused were charge sheeted for the commission of A

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Aoffences under Sections 302/149, 325/149, 147, 148 and 440 of the IPC.Accused No.1 was also charge sheeted under Section 30 of the ArmsAct.

4. The trial court after undertaking a full-fledged trial found theaccused guilty under Sections 302/149 of IPC and sentenced them toBundergo life imprisonment and Rs.20,000/- fine and on default additionalthree years of R.I., two years of imprisonment under Section 325/149 ofIPC and fine of Rs.2000/- and on default one year additional R.I, threeyears of R.I under Section 440 of IPC and fine of Rs.5000/- and ondefault six months additional R.I and except accused No.1, rest of theaccused were sentenced to one year of R.I under Section 147 IPC andCfine of Rs.500/- and on default two months of additional R.I. AccusedNo. 1 was further convicted under Section 148 IPC and Section 30 ofthe Arms Act and was sentenced to suffer two years of R.I and fine ofRs.1000/- and on default four months of additional R.I. and four monthsof R.I and a fine of Rs.1000/- and on default four months of additionalDR.I respectively.

5. Feeling aggrieved, the accused approached the High Court byfiling an appeal. By the impugned judgment herein, the High Court setaside the judgment and order of conviction of accused Nos.2 to 9(respondent Nos.2 to 9). However, respondent No.1 has been heldEguilty under Section 304 (Part I) IPC and sentenced to undergo tenyears R.I and fine of Rs.20,000/- and in default to undergo three years R.I in addition.

6. We have heard learned counsel for the parties. Learned counselfor the appellant submits that the High Court has failed to appreciate theFfindings of the trial court that the respondents who were nine in numberand were armed with sharp edged weapons, lathis and one of them hada 12 bore gun had come to the spot of the incident with premeditationand common intention to assault and kill the complainant and his brotherand in this transaction of violence the brother of complainant succumbedto gunshot injury inflicted by accused No.1. Therefore, the court belowGwas not justified in setting aside the sentence and conviction of respondentNos. 2 to 9. It is further submitted that the High Court was also notjustified in setting aside the conviction and sentence of the respondentNo.1 under Section 302 IPC and imposing lesser punishment of ten yearsof R.I under Section 304 (Part I) IPC. On the other hand, learned H

advocate appearing for the respondents has sought to justify the impugnedjudgment of the High Court.

7. We have carefully considered the submissions of the learnedcounsel appearing for the appellant-State and the learned advocateappearing for the respondents. It is clear from the evidence on recordthat the deceased Rajesh suffered only one injury on interior aspect ofthigh, which was an exit wound. Injury No. 2 was a gunshot entrywound on the back side of left thigh. There was haematoma and fractureof thigh bone. Dr. Vijaysingh (PW-8) examined the deceased and issuedMLC report (Ex. P/11). He also examined PW-1 Dinesh, brother of thedeceased and found three contusions and one lacerated wound. In theopinion of the doctor all the injuries were simple in nature except injuryNo.1 on the left forearm. PW-1, Dinesh is an eye-witness. PW-2recorded the dying declaration of the deceased Rajesh (Ex. P/4). It isevident from the statement of PW-1, that he has given a general andomnibus statement about the assault upon the deceased and himself bythe accused. Accused No.1 was having a twelve bore gun and theother accused were armed with lathis. However, the doctor’s reportshows that deceased had sustained only one injury on the left thigh causedby accused No.1. Neither the deceased nor PW-1 had any injury causedby sharp edged weapon. PW-1 suffered fracture of left ulna bone andthree simple injuries caused by hard and blunt object but he has notpointed out as to which accused did cause injuries to him. His generalstatement regarding participation of all the accused with differentweapons and causing injury to the deceased as well as to himself is notduly corroborated by medical evidence of PW-8 and autopsy surgeonPW-7, Dr. Kapil Sahay. The version of PW-1 is belied by medicalevidence. In the dying declaration the deceased has deposed that exceptVishnu Prasad (accused No.1) he was not knowing as to who hadassaulted him but in the same breath he has stated that he was assaultedby lathi by Chaturbhuj (accused No.3) and Laxmichand (accused No.2).However, his version is not corroborated by medical evidence as he didnot suffer even a single scratch on his body except fire arm injury.

8. It is necessary to notice here that the dispute between theparties arose on account of entrance of cattle and causing damage tothe crops, as well as use of way in which deceased and PW-1 sustainedinjuries. Taking overall view of the matter, the High Court has acquitted A

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Aaccused Nos.2 to 9. Insofar as accused No.1 is concerned, his overt actis fully corroborated by the medical evidence, as well as the dyingdeclaration (Ex.P/4). Though, PW-1 sustained injuries caused by hardand blunt object but according to his version, he was assaulted by all theappellants, whereas he sustained only four injuries and no injury wassustained by him by fire arm or sharp edged weapon. Therefore, itBwould be difficult to fix the liability for causing injuries to this witness bythe respondents.

9. Insofar as the deceased Rajesh is concerned, he sufferedgunshot injury and entry wound was on back of his left thigh. Thisshows that the shot was fired from his back side. There was no blackening,Ccharring on exit wound. Blackening and charring were present on entrywound which shows that the gunshot was fired within the range of 6 to8 feet. In view of the medical evidence, it would be easy to infer that ifaccused No.1 was having intention to commit murder of the deceasedand used fire arm for that purpose, the injury could have been caused on Dupper limb, above waist of the deceased but the part chosen for causinginjury was the back portion of left thigh. Thus, though the accused No.1was not having intention to commit murder of the deceased but the actwas to cause bodily injury which was likely to cause death. Therefore,the High Court found that he would be responsible for commission ofculpable homicide not amounting to murder punishable under SectionE304 (Part I) of IPC. The High Court after scanning the entire evidencealso held that the respondents were not having an intention to commitmurder of the deceased Rajesh. We do not find any infirmity in thejudgment of the High Court.

10. Accordingly, the appeal is dismissed.F

Kalpana K. Tripathy

Appeal dismissed.

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