2007 Supreme(MP) 773

High Court Of Madhya Pradesh
Abhay Gohil and Sheela Khanna, JJ
UDAYVEER - Appellant
Versus
STATE OF M.P. - Respondents
Criminal Appeal 169 Of 2002
Decided On : 08/02/2007

Headnote:(i) Indian Penal Code, 1860—Sections 302, 307/34 r/w 21(7) and 29(B) of Arms Act —Prosecution of appellant Al for causing death of deceased by firing at her on exhortation of A2—Conviction of both of accused persons by Trial Court—Appeal against conviction by A1—Categorical and consistent evidence of all prosecution witnesses that two persons came to hand-pump when “L” was taking water from hand-pump—Wordy quarrel ensued between parties and on exhortation by A2, A1 fired at deceased—Incident took place suddenly—Opinion of doctor that injury caused in left forearm was not firearm injury not carried any weight as accused was caught red handed from spot and incident was witnessed by eyewitnesses—Categorical statement of eyewitnesses that one shot was hit by accused on deceased and that shot caused two injuries on body of deceased—Deposition of all prosecution witnesses that A1 fired at deceased and he died at spot—Hence held that it was clear that A1 committed offence and used gun of A2 in said offence—No evidence of enmity or motive—Parties were not knowing to each other—No evidence that accused persons came with intention to kill deceased—Incident took place suddenly and A1 fired on hearing word miscreants from “L” and genesis of offence was dispute of taking water from bucket—Hence held that case of A1 would not fall under Section 302 IPC as evidence of intention causing murder was missing—A1 held liable to be convicted under Section 304 Part-I IPC and under Section 21(1) of Arms Act. (Paras 9 to 14)

       (ii) Indian Penal Code, 1860—Sections 302, 307/34 r/w 27(1) and 29(B) of Arms Act —Prosecution of appellant A1 for causing death of deceased by firing at her on exhortation of A2—Conviction of both of accused persons by Trial Court—Appeal against conviction by A2—Even though all prosecution witnesses in examination-in-chief had stated against A2—However said prosecution witnesses in cross-examination stated that A2 present in Court was not same A2 who was present on spot along with A1—It being a case of no evidence against A2, conviction of A2 under Section 302/34 IPC could not be upheld—Considering provisions of Section 27(1) of Arms Act that whoever uses any arms or ammunition in contravention of Section 5 shall be punished with imprisonment and since gun was not used in commission of crime by A2 and it was used by A1—Hence conviction of A1 under Section 27(1) of Arms Act held liable to be set aside—So far as conviction of A2 under Section 29(b) was concerned, evidence was available that he delivered aforesaid arms into possession of A1 without previously ascertaining whether such other persons was entitled by virtue of Act or any other law for time being in force or not—Conviction of A2 hence under Section 29B held not liable to be interferred with. (Paras 15 to 19)

       Facts of the Case:

        1. Accused persons herein in the instant case were convicted under Section 302, 307/34 of IPC r/w 27(1) and 29(B) of Arms Act for causing death of deceased by gun shot injury.

        2. Aggrieved by said order of conviction and sentence, appellants have preferred present appeal.

        3. Findings of the Court: The Court held that there was categorical statement of eyewitnesses that one shot was hit by accused on deceased and that shot caused two injuries on body of deceased. Deposition of all prosecution witnesses that A1 fired at deceased and he died at spot. Hence held that it was clear that A1 committed offence and used gun of A2 in said offence. No evidence of enmity or motive. Parties were not knowing to each other. No evidence that accused persons came with intention to kill deceased. Incident took place suddenly and A1 fired on hearing word miscreants from “L” and genesis of offence was dispute of taking water from bucket. Hence held that case of A1 would not fall under Section 302 IPC as evidence of intention causing murder was missing. A1 held liable to be convicted under Section 304 Part-I IPC and under Section 27(1) of Arms Act.

        4. Even though all prosecution witnesses in examination-in-chief had stated against A2. However in cross examination said prosecution witnesses stated that A2 present in Court was not same A2 who was present on spot along with A1. It being a case of no evidence against A2, conviction of A2 under Section 302/34 IPC could not be upheld. Considering provisions of Section 27(1) of Arms Act that whoever uses any arms or ammunition in contravention of Section 5 shall be punished with imprisonment and since gun was not used in commission of crime by A2 and it was used by A1. Hence conviction of A1 under Section 27(1) of Arms Act held liable to be set aside. So far as conviction of A2 under Section 29(B) was concerned, evidence was available that he delivered aforesaid arms into possession of A1 without previously ascertaining such other person was entitled by virtue of Act or any other law for time being in force or not. Conviction of A2 hence under Section 29B held not liable to be interferred with.

       Result: Appeal allowed partly.