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2009 Supreme(All) 2295
[2009(6) ADJ 372 (DB)]
ALLAHABAD HIGH COURT
BEFORE : MRS. POONAM SRIVASTAVA AND SUBHASH CHANDRA AGARWAL, JJ.
RAVI SHANKER PANDEY @ MUNNI PANDEY ....Appellant (In Jail)
Versus
STATE OF U.P. ....Opposite Party
(Criminal Appeal No. 6586 of 2007, decided on 18th May, 2009)
Counsel :
G.S. Chaturvedi, Jagdish Singh Sengar, N.I. Jafri and V.K. Srivastava for the Appellant; Miss Usha Kiran, A.G.A. for the Opposite Party.
Headnote:(Indian) Penal Code, 1860—Sections 302, 299, 300, 304(1) and 304, Part II—Culpable homicide—Life imprisonment—Sustainability of—In present case appellant had no motive or intention to commit murder of deceased—She did not suffer injury on any vital part of her body—Injury caused to deceased on left thigh was not sufficient in ordinary course of nature to cause death—Under circumstances it cannot be inferred that appellant knew that his act was so imminently dangerous—That it must in all probability—Cause death or such bodily injury as is likely to cause death—Held, Section 302 of IPC not applicable in instant case—Act of appellant covered by Part II of Section 304 of IPC—In view of fact of physical disability of appellant and his age—Sentence modified. [Paras 18, 20, 21 and 22]
Honble Subhash Chandra Agarwal, J.—This criminal appeal has been filed against the judgment and order dated 18.9.2007 passed by Additional Sessions Judge, Court No. 1, Kanpur Dehat, whereby the appellant Ravi Shanker Pandey @ Munni Pandey was convicted under Section 302, I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 30,000/- and in default of payment of fine, to undergo further R.I. for 3 years a sum of Rs. 20,000/- to be paid to the complainant as compensation out of the fine to be deposited by the appellant.
2. The incident took place on 19.3.2005 at 5.30 p.m. At the house of the complainant Kailash Narain Dixit (P.W. 1). The FIR Ext. Ka-1 was lodged by the complainant at P.S. Chaubepur at 8.30 p.m. On the same day.
3. The prosecution story as unfolded in the FIR is that the appellant and the complainant are the residents of the same village Pachor, P.S. Chaubeypur district Kanpur Nagar and are neighbours. At the time of incident, the appellant came to the house of the complainant armed with his licensed gun and started abuses. The complainant objected to the same, but the appellant did not pay any heed. Hearing the noise, Smt. Vidyawati, the wife of the complainant, came out her house and asked the complainant to come inside. When the complainant was entering his house with his wife, the accused abused them and fired from his gun resulting in injury in the thigh of Smt. Vidyawati. After some time the accused fired again at Pradeep Kumar, the son of the complainant who fell down and escaped unhurt. Smt. Vidyawati was being taken to Hallait Hospital, but she died on the way. The incident was witnessed by the complainant, his son Mithlesh Kumar Dixit (P.W. 2) and Harish Chandra Verma (P.W. 5).
4. Station Officer In-charge Chaubeypur Satish Chandra Yadav (P.W. 6) commenced the investigation. He recorded the statement of the complainant and went to the place of occurrence and after appointing the Panch, held the inquest proceedings and got prepared the inquest report Exhibit Ka-2 through S.I. Rajendra Singh (P.W. 7) and after preparing the necessary papers for postmortem, sent the dead body of Smt. Vidyawati for post-mortem examination. He also prepared site plan Ext. Ka-8. He took into possession the blood stained and plain earth and prepared it’s memo Ext. Ka-9. On 20.3.2005 he arrested the appellant and recovered D.B.B.L. 12 bore gun No. 142168, 3 live cartridges and 2 spent cartridges from his possession in respect of which, recovery memo Ext. Ka-3 was prepared. The Investigating Officer also recorded the statements of other witnesses and after completing the investigation, submitted charge-sheet Ext. Ka-10 against the appellant.
5. The autopsy on the dead-body of the deceased Smt. Vidyawati was conducted on 20.3.2005 at 11 a.m. by Dr. K.P. Madhesiya (P.W.3). The age of the deceased was about 66 years and in the opinion of the doctor, the deceased died about half day before from the time of conducting post-mortem examination. The following anti-mortem injuries were found on the dead-body of the deceased :
1. Fire-arm wound of entry 4 x 4 cm. On medial aspect of left thigh 7 cm. Above from left Knee joint, margins inverted black colour present around wound.
2. Fire-arm wound of exit 14 x 6 cm. On lateral side of left thigh 4 cm. Above from left Knee joint, margins everted. Injury is communicated through injury No. 1, underline bone fractured.
6. On internal examination, 3 ounce semi digested food was found in the Stomach. In the opinion of doctor, the deceased died due to shock and haemorrhage due to anti-mortem injuries.
7. Learned Sessions Judge framed charge under Section 302, I.P.C. against the appellant who denied the charge and claimed to be tried.
8. The appellant in his statement under Section 313, Cr.P.C. denied the prosecution story and stated that he has been falsely implicated due to enmity.
9. The appellant in his statement under Section 313, Cr.P.C. stated that his ancesto
