Sanju @ Sanjay vs State of M.P.

Convictâ€"Sanju @ Sanjay has preferred appeal No. 6303/2018 against his conviction under Section 304 part II of IPC and sentence of five years

rigorous imprisonment with fine of Rs.1,000/- in default of payment of fine; further to undergo one year R.I. while father of the victim/deceased Arjun

has preferred appeal No. 6572/2019 for enhancement of this sentence awarded by judgment and order dated 14th August, 2018 delivered by Special

Judge, SC/ST Act, Rajgarh (Biaora) in Special Case No.96 of 2016. Therefore, both the appeals were heard analogously and are being decided by this

common judgment.

Facts giving rise to the present appeals in brief are that since last about 4-5 months; complainant Bablu, who was a mason, was constructing house

of Ramprasad Dangi, father of appellant Sanju @ Sajay, along with his cousins deceased Sonu S/o Arjun & Kailash and father Tularam. On

31.07.2016 at about 4:00 PM, when Bablu & Kailsh were plastering in the front room, the appellant brought his 315 bore gun (mouser). He placed a

cartridge in its chamber and was showing it to the appellant. Suddenly he fired the gun. The bullet directly hit on the right eye of Sonu, who died on the

spot. Bablu Jatav reported the matter to the police. SHO Mukesh Gaur reached on the spot and deduced Dehati Nalshi Ex.P/3, registered Dehati

merg Ex.P/4, prepared panchnama lash Ex.P/2, sent the dead body for postmortem vide letter Ex.P/9, prepared spot map Ex.P/6, seized, blood

smeared soil, plain soil, pieces of used cartridge and cemented portion of the wall, where the bullet hit etc. vide seizure memo Ex.P/5. Dr. R. K. Jain

(PW-4), performed the postmortem and submitted report Ex.P/7. The I.O. also seized gun on the basis of disclosure statement of the

accused/appellant and arrested him vide memorandum Ex.P/11, seizure memo Ex.P/12 and arrest memo Ex.P/10. All the seized articles were sent to

the FSL vide letter Ex.P/13. Casts certificates Ex.P/16 and P/17 were also seized by the police vide seizure memo Ex.P/15. Gun was examined by the

armorer, who found it in working condition and submitted report Ex.P/8. FSL submitted report Ex.P/20 and confirmed presence of human blood on all

the articles sent for chemical analysis except on the plain soil. Crime was registered at Police Station - Dehat Biaora, Districtâ€"Rajgarh by deducing

FIR No.226/2016 (Ex.P/18). After investigation, the police filed the charge-sheet.

The accused was charged under Section 304 IPC and Sections 3(2)(v) of SC/ST, Act, 1989. After the trial, he was held guilty only under Section

304-II IPC and was awarded imprisonment as stated in para 2 above.

The appellant has preferred this appeal on the grounds that the judgment and order of the learned Trial Court is contrary to the law and facts on

record. Independent witnesses have not supported the case of the prosecution. To convict the appellant, the learned Trial Court has relied on the

statements of witnesses who are blood relatives of the deceased. The learned Trial Court ignored several discrepancies, contradiction and omissions

on material points appeared in their statements. It has further ignored the fact that the statements of the witnesses are self contradictory. There is no

evidence of knowledge or motive regarding death of the deceased. Necessary constituents to constitute the offence under Section 304-II IPC could

not be established by the prosecution. The incident happened all of the sudden, therefore, offence under Section 304 part -II IPC is not made out. The

investigation is tented and partial. The appellant is first offender but he was not bestowed benefit of probation. The prosecution did not comply the

provisions of Section 157 of Cr.P.C., therefore, the appellant is entitled for acquittal.

In alternate, it is prayed that the sentence of the appellant is too harsh to the nature of the incident or the allegation made against him, therefore, it

be reduced to the period already undergone, which is now about two years.

Objection of father of the victim, who has filed cross-appeal, is that he has lost his 23 year old son in the incident. It is submitted by the learned

Counsel for the appellant that the accused took out his gun and fired gun shot towards the deceased, therefore, his offence falls within the purview of

the Section 304 IPC. The learned Trial Court has erred in convicting him for the offence under Section 304-II IPC, therefore, he prays for

enhancement of the conviction and sentence both. Acquittal of the appellant under Section 3(2)(v) of the SC & ST Act is not challenged.

The State has not preferred any appeal against the impugned judgement.

I have considered the rival contentions of the parties and have gone through the evidence produced by the prosecution before the Trial Court.

The convict Sanjay has not challenged the incident, the death of Sonu, the fact that the death was caused by gun shot injury and the fact that the

bullet was fired from the gun of uncle of the appellant, therefore, there is no need to discuss the evidence produced by the prosecution to establish all

these facts.

The only thing remained for this Court to determined is as to who fired the gun or by whose mistake the gun went of or whether the fire was

intentional or accidental.

In the trial Court both eyewitnesses Babloo and Kailash have stated that the accused fired the gun shot to the deceased. But these are

exaggerated statements and have been revealed first time before the Court otherwise the prosecution itself had come before the Court with the case

that the gun went of accidentally. In Dehati Nalishi Ex.P/3 & P/4 lodged by Babloo on the spot and also in their statements Ex.D/1 & D/2 given to the

police on the very next day Kailash PW-1 and Babloo PW-2 both have stated that the gun went of accidentally. In his unrebutted unbattered

testimony; IO Mukesh Gaur PW-6 have confirmed the facts mentioned in the Dehati Nalishi and also in the police statements of these witnesses. No

explanation is proposed by the witnesses for this improvement in the Court or for not revealing the facts stated before the Court at the first instance or

at the first available opportunity just after the incident. Therefore, such improvement cannot be taken into account or cannot be relied upon.

But even after scoring off this improvement from the record or from the consideration, the substance of the statements of the witnesses remains

intact that it was the accused who brought the gun, was showing the same to the deceased and suddenly and accidentally it got fired, the deceased

received the bullet near his right eye, which resulted in his death. Challenge made to this substance through cross-examination of the witnesses failed

to generate any fruitful results or to create any doubt to the veracity of the statements of the witnesses either on the ground of their blood relation with

the deceased or on the ground of malice or their greed for money.

Another defence taken by the accused through the cross-examination of the witnesses of the incident that the gun suddenly went of when the

deceased himself was taking it out alongwith the other articles form the room to vacate it for the purpose of doing necessary construction work. The

questions were put before the eyewitnesses that after taking out the gun from the room, the deceased was asking the accused as to how it works and

at that time; out of curiosity, he pressed the trigger, the gun went of and the bullet hit him. But all the witnesses have refuted all such suggestions and

thereafter no efforts were made by the accused to establish this defence. Therefore, the learned trial Court has rightly rejected this defence of the

accused.

There is absolutely no evidence of motive or any ill intention of the accused. On the contrary all the prosecution witnesses of the incident have

admitted that since last two to four moths they were working with the father of the accused, were constructing his house and were enjoying cordial

relation with him.

Thus, the evidence produced by the prosecution successfully establishes the facts that it was the accused who brought the gun, placed cartridge in

its chamber or barrel, was showing it to the deceased and pressed the trigger. But further this evidence also shows that the accused was only

demonstrating the deceased as to how the gun fires. The accused and the deceased were of the same age group and their conduct, act and

conversation was natural human conduct or behavior. In absence of “motiveâ€, the act of the accused cannot be considered as an intentional act.

But, there was a gun in the house of the accused, he was 24 years old at the time of the incident and was mature enough to understand the risk of his

act, he did not care about direction of the gun at the time of demonstrating it, therefore, his knowledge for his act cannot be denied or discarded. This

further negates the arguement advanced by the learned counsel that the act of the accused falls only under the definition of negligent act as defined in

Section 304A of the IPC and he can only be punished under this Section.

After careful scrutiny of the evidence produced by the prosecution, no fault is found in the conclusion of the learned trial Court. The conviction of

the accused under Section 304 part II is well merited and leaves no scope for interference by this Court.

The accused was 24 years old at the time of the incident with unblemished record. Though he was negligent but there war no intention. He is

facing trial since 2016. He was granted bail during the trial. There is no allegation that he misused that liberty. Keeping in view the nature and gravity

of the offence and other facts and circumstances of the case, the sentence awarded to the appellant is appears to be just, proper and proportionate to

the offence found proved. Here also, I do not find any reason to interfere in sentence part on either side. Neither I am inclined to reduce it nor to

increase it. Both the appeals preferred by the accused as well as by the father of the victim sans merits, deserve to be and are dismissed hereby.

The order of the learned trial Court in respect of the disposal of the case property is hereby confirmed.