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                REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2393 OF 2009   

STATE OF MADHYA PRADESH   …APPELLANT  

VERSUS

GANGABISHAN @ VISHNU & ORS.          …RESPONDENTS

J U D G M E N T

S.ABDUL NAZEER, J.

1. This appeal by special leave is preferred against the judgment

dated 06.12.2006 passed by the High Court of Madhya Pradesh at

Indore in Criminal Appeal No. 1370 of 2001 arising out of Sessions

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Trial  No.  197 of  2000 passed by  the  Additional  Sessions Judge,

Shajapur, Madhya Pradesh, dated 4th December, 2001, wherein the

High Court has set aside the judgment and order of conviction of

the respondents under Sections 302/149 and 325/129 IPC against

all the respondents except respondent No.1.   The respondent No.1

has been held guilty under Section 304 (Part­I) IPC and sentenced

to undergo ten years R.I. and fine of Rs.25,000/­ and in default  to

undergo three years further R.I.  

2. Briefly stated the prosecution case is that Dinesh (PW­1) and

his  brother  Rajesh  (deceased)  were in their field  situated in the

forest, for the purpose of watching the crops.  At that juncture, the

accused persons reached over there having  lathis  and swords  in

their  possession except accused No.1 Gangabishan alias Vishnu,

who was having 12 bore gun and started assaulting Rajesh with

their respective weapons.  Accused No.1 caused gunshot injury on

the left thigh of the deceased by 12 bore gun because of which he

fell down on the ground.  Dinesh raised cry.  However, no one came

to their rescue.  Somehow he managed to run away from the scene

of occurrence and disclosed about the incident to Sidhnath,

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Ramsingh, Gopal Khati and Laxminarayan Khati.  They all brought

the deceased Rajesh on a cot from the field and thereafter took him

in a mini truck.   The deceased Rajesh became unconscious.   The

accused persons were also causing damage to the standing crops of

PW­1 by grazing their cattle and the incident occurred because of

the objection being raised by PW­1 in the morning of the same day.

3. The police after registration of the crime and recording of the

FIR (Ex. P/1) prepared the inquest.   Post mortem examination of

the deceased was conducted by Dr. Kapil Sahay (PW­7).   The post

mortem report is Ex. P/10.  Dr. Vijaysingh, PW­8 initially examined

the  deceased Rajesh, the  same day and also  PW­1.  Their  MLC

reports are Exhibits P/11 and P/12 respectively.  Dying declaration

(Ex. P/4) of the deceased  was also recorded by Tehsildar Shri

Purshottam Sharma (PW­2).   After investigation, accused were

charge sheeted for the commission of offences 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 Arms Act.

4. The trial court after undertaking a full­fledged trial found the

accused guilty under Sections 302/149 of IPC and sentenced them

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to undergo life imprisonment and Rs.20,000/­ fine and on default

additional three years of  R.I., two years  of imprisonment  under

Section 325/149 of IPC and fine of Rs.2000/­ and on default one

year additional R.I, three years of R.I under Section 440 of IPC and

fine  of  Rs.5000/­  and  on  default six  months  additional  R.I  and

except accused No.1, rest of the accused were sentenced to one year

of R.I under Section 147 IPC and fine of Rs.500/­ and on default

two months of additional R.I. Accused No. 1 was further convicted

under Section 148 IPC   and Section 30 of the Arms Act and was

sentenced to suffer two years of R.I and fine of Rs.1000/­ and on

default four months of additional R.I. and four months of R.I and a

fine of  Rs.1000/­ and on  default four  months of additional  R.I

respectively.  

5.  Feeling aggrieved, the accused approached the High Court by

filing an appeal.  By the impugned judgment herein, the High Court

set aside the judgment and order of conviction of accused Nos.2 to

9 (respondent Nos.2 to 9).  However, respondent No.1 has been held

guilty under Section 304 (Part I) IPC and sentenced to undergo ten

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years 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

counsel for the appellant submits that the High Court has failed to

appreciate the findings of the trial court that the respondents who

were nine in number and were armed with sharp edged weapons,

lathis and one of them had a 12 bore gun had come to the spot of

the incident with premeditation and common intention to assault

and kill the complainant and his brother and in this transaction of

violence the brother of complainant succumbed to gunshot injury

inflicted by accused  No.1.   Therefore, the court below  was  not

justified in setting aside the sentence and conviction of respondent

Nos. 2 to 9.   It is further submitted that the High Court was also

not justified in  setting  aside the  conviction  and sentence  of the

respondent No.1 under Section 302 IPC and imposing lesser

punishment of ten years of R.I under Section 304 (Part I) IPC.  On

the other hand, learned advocate appearing for the respondents has

sought to justify the impugned judgment of the High Court.

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7. We have carefully considered the submissions of the learned

counsel appearing for the appellant­State and the learned advocate

appearing  for the  respondents.   It is  clear from the evidence on

record that the deceased Rajesh suffered only one injury on interior

aspect  of thigh,  which was an exit  wound.   Injury No.  2  was a

gunshot entry wound on the back side of left thigh.  There was

haematoma  and fracture of thigh bone.  Dr. Vijaysingh (PW­8)

examined the deceased and issued MLC report (Ex. P/11).  He also

examined PW­1 Dinesh, brother of the deceased and found three

contusions and one lacerated wound.  In the opinion of the doctor

all the injuries were simple in nature except injury No.1 on the left

forearm.  PW­1, Dinesh is an eye­witness.  PW­2 recorded the dying

declaration of the deceased Rajesh (Ex. P/4).   It is evident from the

statement of PW­1, that he has given a general and omnibus

statement about the assault upon the deceased and himself by the

accused.  Accused No.1 was having a twelve bore gun and the other

accused  were armed  with lathis.   However, the doctor's report

shows that deceased had sustained only one injury on the left thigh

caused by accused No.1.   Neither the deceased nor PW­1 had any

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injury caused by sharp edged weapon.   PW­1 suffered fracture of

left ulna bone and three simple injuries caused by hard and blunt

object but he has not pointed out as to which accused did cause

injuries to him.  His general statement regarding participation of all

the accused with different weapons and causing injury to the

deceased as well as to himself is not duly corroborated by medical

evidence of PW­8 and autopsy surgeon PW­7, Dr. Kapil Sahay.  The

version of PW­1 is belied by medical evidence.   In the dying

declaration the deceased has deposed that except Vishnu Prasad

(accused No.1) he was not knowing as to who had assaulted him

but in the same breath he has stated that he was assaulted by lathi

by Chaturbhuj (accused No.3) and Laxmichand (accused  No.2).

However, his version is not corroborated by medical evidence as he

did not suffer even a single scratch on his body except  fire arm

injury.   

8. It is  necessary to  notice  here  that the dispute  between the

parties arose on account of entrance of cattle and causing damage

to the crops, as well as use of way in which deceased and PW­1

sustained injuries.  Taking  overall view  of the  matter, the  High

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Court has acquitted accused Nos.2 to 9.  Insofar as accused No.1 is

concerned, his overt act is fully corroborated by the medical

evidence, as well as the dying declaration (Ex.P/4).  Though, PW­1

sustained injuries caused by hard and blunt object but according to

his  version,  he  was  assaulted  by  all the  appellants,  whereas  he

sustained only four injuries and no injury was sustained by him by

fire arm or sharp edged weapon.  Therefore, it would be difficult to

fix the liability for causing injuries to this witness by the

respondents.   

9. Insofar as the deceased Rajesh is concerned, he suffered

gunshot injury and entry wound was on back of his left thigh.  This

shows that the shot was fired from his back side.   There was no

blackening, charring on exit wound.  Blackening and charring were

present on entry wound which shows that the gunshot was fired

within the range of 6 to 8 feet.  In view of the medical evidence, it

would be easy to infer that if accused No.1 was having intention to

commit murder of the deceased and used fire arm for that purpose,

the injury could have been caused on upper limb, above waist of the

deceased but the part chosen for causing injury  was the back

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portion of left thigh.  Thus, though the accused No.1 was not having

intention  to  commit  murder  of the  deceased but the  act  was  to

cause bodily injury which was likely to cause death.  Therefore, the

High Court found that he would be responsible for commission of

culpable homicide not amounting to  murder punishable under

Section 304  (Part I) of IPC.  The High Court  after scanning  the

entire evidence also held that the respondents were not having an

intention to commit murder of the deceased Rajesh.  We do not find

any infirmity in the judgment of the High Court.

10. Accordingly, the appeal is dismissed.

…………………………………….J. (ABHAY MANOHAR SAPRE)

      …………………………………….J. (S. ABDUL NAZEER)

New Delhi; July 27, 2018.