The court established that a lack of premeditation and the presence of provocation can reduce a murder charge to culpable homicide not amounting to murder.

J U D G M E N T

Per: Justice Sushrut Arvind Dharmadhikari

The appellant has preferred instant appeal under Section 374(2) of Cr.P.C., 1973 being dissatisfied with the judgement dated 31/01/2011 passed by learned Sessions Judge, Umaria (M.P.) in S.T. No. 63/2009, whereby appellant has been found guilty for commission of offence punishable under Section 302 of the IPC and sentenced to undergo life imprisonment with fine of Rs.5,000/- and under Section 30 of the Arms Act and sentenced to undergo S.I. for 3 months with default stipulation. The sentences are directed to be run concurrently.

2. The facts of the case in brief are that the appellant was in Army service and came to his village on leave for a period of one month starting from 24/12/2008. The appellant-Ganga Prasad, Ramprasad and Ganesh Prasad (deceased) were three brothers residing separately, however, the courtyard was common for all. Indisputably, there was a property dispute amongst them. On 01/01/2009, at about 9:00 p.m., when Rajkumar (PW- 11) and deceased- Ganesh Prasad returned back to their home after attending the dinner organized by one Shyamlal Prajapati, the appellant started hurling filthy language on their family members. Thereafter, they went to the appellant to prevent him from abusing, the appellant fired a gun shot upon Ganesh with his 12 bore licensee gun, due to which Ganesh sustained grievous injuries, which resulted into his death.

3. Upon the information received from Rajkumar (PW-11), police wrote dehati nalishi as Ex. P/7, thereafter registered the FIR as Crime No. 02/2009 (Ex. P/19) initially for the commission of offence punishable under Section 307 of the IPC. On account of death of deceased-Ganesh using firearm, offence under Section 302 of IPC and Section 30 of the Arms Act were added. At the instance of appellant/accused, police recovered the weapon said to have been used in the offence from the house of appellant/accused. Dead body of the deceased was sent for autopsy, which was conducted by Dr. D.K. Kaudiya (P.W. 22) and the report of said is annexed as Ex. P/17. The seized articles were also sent for chemical examination and report thereof is annexed as Ex. P/28. The seized gun, pellets and empty cartridges were also sent for examination to Ballistic Expert and report thereof is annexed as Ex. P/29. After completion of investigation, charge-sheet was filed before the competent Court. The appellant/accused came to be tried for the said offence on the basis of testimony of 23 prosecution witnesses and one defence witness. After appreciating the oral as well as scientific evidence, the learned trial Court found the appellant guilty for the aforesaid offence and sentenced him accordingly. Being aggrieved with the findings recorded by the learned trial Court, appellant/accused has preferred the instant appeal.

4. The legality of the said judgement is questioned by the learned amicus curiae on the ground that the deceased himself went to the house of the appellant, where the incident took place, which shows that the appellant had no intention to cause death of the deceased, rather, the deceased was aggressor to lead the quarrel. Further, there is no evidence available on record to show that the gun, which was seized from the possession of present appellant, indeed was the weapon said to have been used in the alleged offence as the Ballistic Report (Ex. P/29) has not been proved through Ballistic Expert in the Court. The Ballistic Report does not show that 23 pellets were recovered from the dead body of deceased actually fired from the weapon said to have been seized from the appellant/accused. The learned amicus curiae expressed doubt over the credibility of eye witness Urmila Bai (PW-3) pointing out the discrepancies in her statements regarding presence of other witnessess at the time of incident and she being eye witness of the incident. The FSL Report (Ex. P/28) and Ballistic Report (Ex.P/29) are not corroborating with the statement of Dr. B.K.