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SUPREME COURT OF INDIA
T.S. THAKUR, CJI., A.K. SIKRI, R. BANUMATHI, JJ.
NANKAUNOO – APPELLANT
VERSUS
STATE OF U.P. – RESPONDENT
CRIMINAL APPEAL NO. 46 OF 2016 (ARISING OUT OF SLP (CRL.) NO.7437 OF 2013)
Decided on : 19-01-2016
(B) Indian Penal Code, 1860 – Section 300, Clause thirdly – Indian Evidence Act, 1872 – Section 8 – Culpable homicide/murder – Sufficiency of injury in ordinary course of nature to cause death – Intention is different from motive – It is intention with which act is done that makes difference in arriving at a conclusion whether offence is culpable homicide or murder – Sufficiency of is high probability of death in ordinary course of nature – When sufficiency exists and death follows, causing of such injury is intended and causing of such offence is murder – Depending on nature of weapon used and situs of injury, in some cases, sufficiency of injury to cause death in ordinary course of nature must be proved and cannot be inferred from fact that death has, in fact, taken place. (Paras 11 and 12)
Facts of Case:
Present appeal arises out of judgment passed by High Court of Judicature at Allahabad, Lucknow Bench in Criminal Appeal whereby High Court affirmed conviction of appellant-accused under Section 302 IPC and also sentence of imprisonment for life imposed on him.
Findings of Court:
Deceased sustained gunshot wound of entry 1½” x 1½” on back and inner part of left thigh, six gunshot wounds of exit each 1/3” x 1/3” in size in front and middle left thigh. Due to occurrence in morning at barber shop of deceased, appellant emerged from northern side of grove carrying pistol in his hand and fired at deceased. Weapon used and the manner in which attack was made and injury was inflicted due to premeditation clearly establish that appellant intended to cause injury.
(1991) 2 SCC 32 – Relied.
Result : Appeal partly allowed.
JUDGMENT :
R. Banumathi, J.
Leave granted.
2. This appeal arises out of the judgment dated 16.05.2013 passed by the High Court of Judicature at Allahabad, Lucknow Bench in Criminal Appeal No.775 of 1981, whereby the High Court affirmed the conviction of the appellant-accused under Section 302 IPC and also sentence of imprisonment for life imposed on him.
3. Briefly stated case of the prosecution is as under:-Deceased-Chhedi Lal was running a barber shop in Kurari Khurd Market. On 18.02.1981, the appellant visited the shop of Chhedi Lal and asked for a haircut. An altercation took place between the two when appellant insisted the deceased for haircut claiming preference over other customers; but the deceased-Chhedi Lal declined his demand. The appellant felt insulted and left the barber shop threatening the deceased. At around 5.00 p.m., deceased-Chhedi Lal closed the shop and went back home. Later at 6.00 p.m., the deceased went towards the canal lying in the western side of the village abadi to answer the nature’s call. When the deceased reached near the eastern mend of the grove of Ishwari, the appellant emerged from the northern side carrying a pistol in his hand and threatened the deceased as he had insulted the appellant in the market and that he would not spare him alive. The deceased fled towards the west to save himself and appellant fired from his pistol which hit the deceased on his left thigh and he had fallen down. The incident was witnessed by Janoo-PW2, Udan-PW3 and Muneshwar. Also father of the deceased namely Kishore-PW1 and his son-Ram Pal saw the incident when they were returning from their field. On the alarm raised by the deceased and the witnesses, the appellant fled away from the scene. The deceased was taken on a cot to his house and on the narration of incident by Kishore-the father of the deceased, the complaint was written by Shiv Pujan Singh. Thereafter, deceased was taken to Police Station-Achal Ganj, where FIR (Ex. Ka-1) bearing Crime No.37/81 dated 18.02.1981 was registered against the appellant under Section 307 IPC. SI-Ravinder Prasad Yadav (PW-6) recorded the statement of Chhedi Lal who was lying injured on the kharkhara outside the Police Station and the deceased was sent to Achal Ganj Hospital from where he was referred to District Hospital Unnao; but the deceased died on the way to the hospital. FIR was altered from Section 307 IPC to Section 302 IPC and further investigation was taken up. After inquest by the police, post mortem was conducted by Dr. J.N. Bajpai (PW-4) at District Hospital Unnao on 19.02.1981 at 3.30 p.m. PW-4-Dr. Bajpai noted a gunshot would of entry ½” x ½” on the back and inner part of left thigh and six gunshot wounds of exit each 1/3” x 1/3” in size in front and middle left thigh. Dr. J. N. Bajpai (PW-4) opined that the death was due to shock and hemorrhage due to injuries of firearm. After completion of investigation, chargesheet was filed against the appellant under Section 302 IPC. After committal of the case to the Sessions Court, charge was framed against the appellant under Section 302 IPC.
4. To bring home the guilt of the accused-appellant, prosecution has examined in all eight witnesses and exhibited the material object on record. The incriminating evidence and circumstances were put to the appellant under Section 313 Cr.P.C. and the accused denied all of them and pleaded that he was falsely implicated. Upon consideration of the evidence, the Sessions Judge, Unnao found the appellant guilty of the offence under Section 302 IPC and sentenced him to undergo imprisonment for life. Being aggrieved, the appellant preferred appeal before the High Court which was dismissed by the impugned judgment.
5. Learned counsel for the appellant Mr. Kapil Arora submitted that the prosecution could not have relied on the testimony of PWs 1, 2 and 3 as PW-1-Kishore, father of the deceased, is an interested witness and PWs 2 and 3 are the inimical interested witnesses and the trial court
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