Supreme Court of India
SANKATH PRASAD versus STATE OF UTTAR PRADESH on 10 January 2020
1002
SUPREME COURT REPORTS
[2020] 1 S.C.R.
A
SANKATH PRASAD
v.
STATE OF UTTAR PRADESH
(Criminal Appeal No. 50 of 2020)
BJANUARY 10, 2020
[DR. DHANANJAYA Y CHANDRACHUD ANDHRISHIKESH ROY, JJ.]
Penal Code, 1860 – s.302 and s.304 Part-I – Conversion ofconviction u/s. 302 IPC to s.304 Part-I IPC – Held: The facts, asCthey have emerged from the record, indicate that the incident hadtaken place on the spur of the moment and was a fallout of analtercation over the excavation of a mound by the brother of theappellant – This was objected to by the complainant – The altercationresulted in the appellant going into his house and bringing out aDcountry made pistol – The son of the complainant - who is thedeceased - intervened in the course of the altercation and was firedat resulting in a single fire arm injury leading to his death –Considering the circumstances of the case, the conviction u/s. 302IPC converted to one u/s. 304 Part-I.
EThe complainant noticed brother of the appellant getting amound dug on a disputed plot. The appellant intervened in thealtercation and there was an exchange of words. The appellantrushed to his house and returned with a country made pistol.The son of the complainant caught hold of the appellant frombehind and got shot by the appellant. The son of the complainantFsuccumbed to his injuries. The appellant was convicted u/s. 302by the Additional Sessions Judge. The High Court dismissed theappeal filed by the appellant. Hence, the present Criminal Appeal.
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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.50 of 2020.G
From the Judgment and Order dated 05.09.2017 of the High Courtof Judicature at Allahabad in Criminal Appeal No. 2546 of 1987.
Nirmal Kumar Ambastha, Ms. Ashmita Bisarya, Advs. for theAppellant.
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Vishnu Shankar Jain, Shreyas Agrawal, Advs. for the Respondent.The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.
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1. Leave granted.
2. This appeal arises from a judgment and order of a DivisionBench of the High Court of Judicature at Allahabad dated 5 September2017. The High Court, by its decision, dismissed Criminal Appeal No2546 of 1987 filed by the appellant in order to challenge his conviction ofan offence under Section 302 of the Indian Penal Code 1860[1] by theIII[rd] Additional Sessions Judge, Fathepur in Sessions Trial No 59 of 1986.The appellant was sentenced to imprisonment for life.
3. The incident in question is alleged to have taken place at 8.45am on 25 August 1985. Gaya Prasad (PW 1), who is the complainant,was returning home after answering a call of nature. When he reachedthe disputed plot while passing through the Chak road, he noticed thatDurga Prasad, the brother of the appellant, was getting a mound dugwith the help of two labourers, one of whom was Ram Nath (PW 2).When the complainant objected, Durga Prasad is alleged to have statedthat he was not committing any wrong. At that point, the appellantintervened in the altercation and there was an exchange of words. Theappellant rushed to his house and returned with a country made pistol.While he was aiming a shot at the complainant Gaya Prasad (PW 1),Uma Shanker, the son of the complainant, caught hold of the appellantfrom behind. The appellant managed to free himself and shot UmaShanker who fell down as a consequence of a fire arm injury. UmaShanker succumbed to his injuries.
4. The eye-witness account of the occurrence was based on thedepositions of the complainant Gaya Prasad (PW 1) and Ram Nath(PW 2). Both these witnesses deposed about the incident. Both theSessions Court and, in appeal, the High Court have relied upon theevidence of PWs 1 and 2. Taking cognizance of the fact that PW 1 is afather of the deceased, the High Court, on a careful evaluation of histestimony, found no reason to discredit his account. The High Court heldthat the presence of PW 1 was natural, having regard to the time andplace of the incident. Moreover, PW 1 did not implicate Durga Prasad in 1 IPC
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Athe crime despite his presence which was an indicator of the fact that hehad given a truthful account of the actual incident. The ocular evidencewas supported by the medical evidence and by the evidence of the doctor(PW 4) who opined that the ante-mortem injury could have been causedby a gun. The post mortem report indicated one fire arm injury, in thefollowing terms:B
“One fire arm wound of entry 1” x 1" x chest cavity deep on thesternum 3" from the right nipple at 3 o’clock position. The marginswere inverted and lacerated. There was blackening and tattooingaround the wound. The direction of the injury was from front toback.C
He found one pellet from inside the dead body of Uma Shankar.”
On this state of evidence, the nature of the incident has been dulyestablished. The presence of the appellant and the role of the appellantin the incident has emerged from the evidence on record.D
5. While entertaining the Special Leave Petition on 18 May 2018,this Court noted the submission of the appellant that even if the entireevidence is to be accepted to be correct, the present case may fall underSection 304 IPC. In pursuance of the notice issued by this Court, theState of Uttar Pradesh has entered appearance and a counter affidavithas been filed.E
6. The facts, as they have emerged from the record, indicate thatthe incident had taken place on the spur of the moment and was a fallout of an altercation over the excavation of a mound by the brother ofthe appellant. This was objected to by the complainant Gaya PrasadF(PW 1). The altercation resulted in the appellant going into his houseand bringing out a country made pistol. The son of the complainant –deceased Uma Shanker intervened in the course of the altercation andwas fired at, resulting in a single fire arm injury leading to his death.
7. Having regard to the circumstances of the case, we are of theview that the conviction under Section 302 of the IPC should be convertedGto one under Section 304 Part I. We accordingly hold the appellant guiltyof an offence under Section 304 Part I of the IPC and sentence him toimprisonment for a term of ten years.
8. The appeal is allowed in the above terms.
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Ankit Gyan