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2018 Supreme(MP) 114
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR
Rajendra Mahajan, G.S. Ahluwalia, JJ.
Manoj @ Bablu S/o Jankiprasad Tiwari – Appellant
Versus
The State of Madhya Pradesh – Respondent
Criminal Appeal No. 320 of 2006
Decided On : 12-01-2018
For the Appellants : Shri Sushil Goswami, Shri Amit Goswami.
For the Respondent: Shri J.M. Sahni.
The main legal point established in the judgment is the distinction between murder and culpable homicide not amounting to murder, and the application of Section 304 (Part II) IPC based on the appellant's intention and knowledge at the time of the act.
Headnote:
Section 302 IPC - Murder - 25 (1-B) (A) R.W. 27 Arms Act - 302, 304 (Part II), 25, 27
Fact of the Case:
The appellant was convicted under Section 302 of the IPC and 25 (1-B) (A) read with 27 of the Arms Act for firing at and killing the deceased in a hotel after a scuffle. The appellant appealed the conviction.
Finding of the Court:
The court found that the appellant fired at the deceased without intention to cause death but with knowledge that the gunshot may cause death. The court altered the conviction to Section 304 (Part II) IPC and imposed a jail sentence equivalent to the time already served by the appellant. The court also ordered the appellant to pay compensation to the deceased's dependents.
Issues: The main issue was whether the appropriate conviction of the appellant was under Section 302 or 304 (Part II) IPC.
Ratio Decidendi: The court applied the principles from the case of Dayanand vs. State of Haryana to distinguish between murder and culpable homicide not amounting to murder. It found that the appellant's act fell under Section 304 (Part II) IPC as he fired without intention to cause death but with knowledge of the likely consequence.
Final Decision: The court set aside the conviction and sentences under Section 302 IPC, convicted the appellant under Section 304 (Part II) IPC, and ordered him to pay compensation to the deceased's dependents.
Rajendra Mahajan, J.
1. Challenge in this appeal under Section 374 (2) of the Cr.PC is to the judgment and order dated 15.2.2006 delivered by the Sessions Judge Sessions Division Datia in Sessions Trial No. 61/2005, whereby and whereunder appellant Manoj @ Bablu has been convicted under Section 302 of the IPC and 25 (1-B) (A) read with 27 of the Arms Act and sentenced thereunder in the former count to suffer rigorous imprisonment for life with a fine of Rs. 5,000/- (Five Thousand) in default thereof to further undergo simple imprisonment for six months and in the latter count to suffer rigorous imprisonment for one year with a fine of Rs. 1,000/- (One Thousand) in default thereof to further undergo simple imprisonment for two months with the direction that the substantive jail sentences awarded in the aforesaid Sections of law shall run concurrently.
2. A synoptical resume of the prosecution case is as under:-
2.1 On the night of 20.12.2004 at about 9:50 pm complainant Sachanand (PW-2) made an oral FIR at Police Station Kotwali Datia to D.N. Sharma (PW-15), the SHO, to the effect that he runs a hotel in the name of “Poonam Hotel” (for short “the Hotel”) at Kila Chowk Datia. On that night Sharad (PW-1) placed an order to prepare dinner with a chicken for 6 to 7 persons. At about 8:30 pm appellant Manoj @ Bablu asked him to serve him dinner. He told him that the chicken would take 10 to 15 minutes more to cook properly. But, he insisted to serve him the dinner forthwith. Thereupon, the dinner was served to him. At about 9:00 pm, Sharad (PW-1), Ashok, Mathura, Omprakash @ Lalla and Tappe @ Razzak (who are not examined) came and they sat at a dinner table close to the dinner table where the appellant was eating the dinner. Some minutes later, Ashok and the appellant came to blows while they were making fun. Omprakash, who is the maternal uncle of the appellant, separated Ashok and the appellant. Thereafter, the appellant went out of the hotel leaving the dinner in the midway. When he was about to start his motorcycle to go, Omprakash made an attempt to mollify him, and he also persuaded him not leave the dinner. For this purpose, he took out the key of his motorcycle but in vain, because he left his hotel on foot. Thereafter, Sharad, Mathura, Ashok, Tappe and Omprakash left his hotel without taking the dinner. Some minutes later, deceased Mahaveer, Latif (not examined) and Murari @ Dauua Rawat (PW-4) came to his hotel to have dinner. Meanwhile, the appellant came with Upendra and Dinesh, who are acquitted accused persons, to his hotel. They asked deceased Mahaveer the whereabouts of his companions. He replied them that they had left the hotel. Upendra and Dinesh exhorted him by saying that deceased Mahaveer was solely responsible for his quarrel with Ashok. Moments later, the appellant fired at deceased Mahaveer. The bullet pierced through his right shoulder and he fell to the ground. Thereafter, the appellant, Upendra and Dinesh fled away from his hotel. Deceased Mahaveer was profusely bleeding. At the time of the incident, 3 to 4 unknown customers were taking dinner in his hotel. Seeing the incident, the customers and the employees of his hotel fled away. When the incident occurred, the deceased's son Vivek @ Bablu (PW-3) was present in his hotel. D.N. Sharma reduced the oral FIR of the complainant into writing being Ex.P-1 and he registered a case at Crime No. 392/2004 under Section 307 read with 34 IPC against the appellant and acquitted accused Upendra and Dinesh.
2.2 After hearing a bust of gunfire and noise of commotion, the policeman of Police Station Kotwali Datia, which is located about 200 to 250 feet away from the hotel, reached the hotel, and they made an arrangement to send deceased Mahaveer in an injured condition to District Hospital Datia for treatment, where Dr. S.K. Khangar (PW-9) medico-legally exam
