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2017 Supreme(Raj) 1090
IN THE HIGH COURT OF RAJASTHAN
Gopal Krishan Vyas, G.R. Moolchandani, JJ.
Khairdeen son of Shri Done Khan and others - Appellants
Versus
State of Rajasthan and others - Respondents
D.B. Criminal Appeal No. 307 of 1991 and 371 of 1992
Decided On : 03-05-2017
Advocate Appeared:
For the Appellant :Mr. Deepak Agarwal, Advocate
For the Respondent: Mr. Vishnu Kachhawaha, P.P.
Headnote:
Indian Penal Code, 1860 - Section 304 A - Indian Arms Act - Section 27 (1) – Criminal Procedure Code, 1973 – Section 313 - Offence of causing death by negligence - Appeal against conviction – Weapon and Wounds - Alleged weapon was not recovered from the possession of the accused and he has uttered truth that the mishap was accidental, when the guests were celebrating gaiety of marriage - Public prosecutor has contended that trial Court has committed error in not convicting accused-appellant under Section 302 of IPC, accused-appellant has committed murder by killing a person by firing of gunshot - Held, Considering entirety of circumstances, evidence and “admission” of the appellant-accused, as made under Section 313 of Cr.P.C., Court view that there is a mitigating factor to alter and modify the sentence under Section 27(1) of Arms Act from four years to three years, so far as, conviction under Section 304-A IPC and fine under both the sections is concerned, we do not find any reason to interfere with the same and are also not inclined to extend benefit of probation to the accused - Guns must be carried with a sense of responsibility and caution and are not meant to be used in such places like marriage ceremonies, and has held appellant guilty of committing act, which caused death of deceased, since act was done with knowledge that it likely to cause death within the meaning of Section 304 Part-II IPC and altering sentence of Section 304 Part-I IPC, reduced it to a period of seven years without making any alteration in fine - Appeals disposed of
Moolchandani, J.
1. These two appeals, one by the accused-appellant and another by the State, have been preferred against the same judgment, therefore, we propose to dispose of these appeals by this common judgment.
The instant appeals are directed against the judgment dated 23/09/1991 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act, Sri Ganganagar in Sessions Case No 16/91 by which the accused-appellant is convicted as under:-
Under Section 304 A IPC Accused appellant has been convicted and sentenced for two years rigorous imprisonment and a fine of Rs. 1000/- and in default to pay fine further to undergo rigorous imprisonment for six months
and
under Section 27 (1) of Indian Arms Act, The accused appellant has been convicted and sentenced to undergo four years rigorous imprisonment and a fine of Rs. 1000/- and in default to pay fine further to undergo rigorous imprisonment for six months.
2. The contents of F.I.R. (Ex.P.12) reads as under :-
Þvkt fnuakd 07-03-1991 ds oDr 6-30p.m. ij Jh jkeksukjk;.k iq= oLlkjke tkfr ckojh mez 25 lky fuoklh ekudFksM+h us gkftj Fkkuk gksdj tqckuh bryk nh fd esjk HkkbZ jkeLo:i mez 18 lky 'kkfn;ksa esa ukpk djrk Fkk gekjs xkoa ds jkorkjke tkV ds yM+ds ?ku';ke dh vkt 'kknh Fkh vkt 'kke dks djhc 5 cts ckjkr jokuk gks jgh Fkh jkeLo:o us vkSjr ds diM+s igudj jkorkjke dh edku dh ckly esa ukp jgk FkkA brus esa [kSjnhu iq= nksus [kka eqlyeku fuoklh <+k.kh lsxyk ftlds ikl ,d uky 12 cksj cUnwd Fkh ftlus ,d Qk;j gok esa fd;k o nwljk dkjrwl canwd esa yksM+ djds jkeLo:i dh rjQ cUnwd pykbZ ftlls jkeLo:i dh ckbZ duiVh ij ihNs dh rjQ xksyh yxh o og tehu ij fxj x;k rFkk 2&3 feuV esa mldh e`R;q gks xbZ ml oDr ekSds ij nqYgk ?ku';ke o dkyw <+ksyh rFkk nwYgs dk cM+k HkkbZ 'kHkksirjke bR;knh Hkh ekSds ij [kM+s Fks ftUgksus Hkh okd;k ns[kk gS eSa nkSM+dj vius ?kj x;k esjs firk oLlkjke o ukuk isekjke dks cqykdj yk;k ftUgksus Hkh yk'k dks ns[kk fQj eSa o Jh 'kHksirjke] ukuk isekjke fjiksVZ djus Fkkus vk;s gSa jkeLo:i dh yk'k ekSdk ij iM+h gS esjs HkkbZ jkeLo:i dks] [kSjnhu iq= nksus [kka eqlyeku fuoklh <+k.kh laxyk us tku ls ekjus ds fy, cUnwd dk Qk;j dj pksV ekjh gS ftlls mldh ekSr gks xbZ yk'k ekSdk ij iM+h gS dk;Zokgh dh tkosAÞ
and this FIR No.64/1991 was lodged on 07.03.1991 at 6.30 p.m.
3. Heard both the sides, learned public prosecutor has contended that the trial Court has committed error in not convicting the accused-appellant under Section 302 of IPC, accused-appellant has committed murder by killing a person by firing of gun shot, which itself is a vulnerable act, per se homicidal and trial Court has committed error by convicting the accused appellant under Section 304A of IPC coupled with Section 27(1) of Arms Act, so findings of learned trial Court be reversed and appeal filed by the State be allowed.
Learned counsel for the accused-appellant has contended that learned trial Court has wrongly convicted the accused person under the provisions of Arms Act, the alleged weapon was not recovered from the possession of the accused and he has uttered truth that the mishap was accidental, when the guests were celebrating gaiety of marriage in fervour and the sentence passed under Section 304A is also maximum, ends of justice will meet, if the appellant-accused is convicted with sentence already undergone after altering the judgment impugned, hence, the appeal be allowed and the sentence of the trial Court be modified.
4. Perused the material and evidence available on the record.
Accused Khairdeen, while, examined under Section 313 Cr.P.C. on 16.09.1991, has assertively said that he made “two frolic fires” out of ecstasy, mistakingly Ramswaroop was shot, while he was jumping on drum beats, he was dancing and has further said that the gun was recovered from his brother-in-law (Saadu), who was staying with its licence.
He has further said that he was not having any animocity with deceased Ramswaroop, he was his bosom. Shivnarayan and Pema were not there and has categorically said that fire hit Ramsw
