B.P. Das, J.
1. This appeal is directed against the judgment dated 27-10-1990 passed by the 2nd. Addl. Sessions Judge. Berhampur, in S. C. No. 14/90 (S. C. No. 100/90-GDC) convicting the appellant (hereinafter called 'the accused' under section 302 of the Indian Penal Code (in short 'I. P. C.') and under section 27 of the Arms Act, 1959 and sentencing him to undergo rigorous imprisonment for life under section 302, I. P. C.. No separate sentence has been passed under section 27 of the Arms Act.
2. Briefly stated, the prosecution case is as follows :--
The occurrence, as it reveals from the F. I. R , was the outcome of a family feud. The accused-Bhobana Nahak is the elder brother of the informant-Tonkia Nahak (p. w. 1) with whom there was long standing dispute over their paternal landed property in village Pankalpadai and the residential house in village Karapada. On 28-1-1990 the accused engaged alabourer named Keshaba Reddy of village Jagannathpur to pull down the straws of the disputed house to which the informant protested. The accused then came out with his licensed gun and threatened saying that whosoever would obstruct him from pulling down the straws, he would kill him. Hearing this, the family members of the informant kept mum and stayed on their verandah. The accused thereafter went towards the paddy-pit of Benu Nahak; loaded his gun and told the informant 'HEITI DEKHE MARILI' (Look, I am shooting) to which the informant replied 'JAA TO GHARE PHUTAIBU' (Go, shoot at your home). Hearing this, the accused told that he would not get peace unless he killed them and saying so, the accused aimed his loaded gun towards the verandah of the informant and fired a shot which hit Brajamohan Nahak, the son of the informant, who was then standing on the verandah of their house. Brajamohan on receiving the gun-shot injury on the left side of his chest fell down. Hira Nahakani (p. w. 2), the wife of the deceased-Brajamohan, Satyam and others saw the occurrence as revealed from the F. I. R.. Thereafter the deceased was administered water and was shifted by a rickshaw to the Chatrapur Govt. Hospital where the informant orally reported the incident to the A. S. I. of Police (p. w. 7), who reduced the same to writing (Ext. 4). On being referred by the doctor (p. w 6), the deceased was shifted to the M. K. C. G. Medical College Hospital, Berhampur, where he succumbed- to his injury on 29-1-1990.
P. w. 7, the Investigating Officer, on recording the F.I.R. (Ext. 4) at Chatrapur Government Hospital on 28-1-1990, examined p. ws. 1 to 4; recorded the statement of the deceased-Brajamohan (Ext. 8); seized blood-stained earth, sample earth and a discharged cartridge from the spot, i. e., the verandah of p. w. 1, where the injured was said to have fallen down after receiving the injury and at about 9;45 p. m. seized one S. B. B. L. gun bearing the engraved No. 57894 (M. O. I.) and a live cartridge (M. O. III) from the chamber of the said gun on being produced by the accused. P. w. 7 also sealed the muzzle and the chamber side ofthe barrel for chemical examination and prepared the spot map (Ext. 9). Thereafter p. w. 7 handed over the charge of investigation to p. w. 8, the Officer-in-charge of Chatrapur P. S., who conducted necessary investigation, sent the seized articles for chemical examination and finally submitted the charge-sheet against the accused under section 302, I. P, C. and section 27 of the Arms Act, 1959. The accused stood his trial and was convicted as stated above.
3. The defence, as would appear from the statement of the accused recorded under section 313, Cr. P. C. is that the firing from his gun took place accidentally. While answering question No. 12, the accused stated that he engaged labourer to pull down straws from a common thatch to which the informant protested. At that time, while the accused was going for hunting with the loaded gun, the informant and his son caught hold of the loaded gun and during the scuffle, the gun went off and the accused did not know how the gun went off.
4. In order to prove the charge, the prosecution examined as many as eight witnesses, of whom, p. w. 1 is the informant and the father of the deceased; p. w. 2 is the wife of the deceased; p. w. 3 is a villager; p. w. 4 is the brother of the deceased, P. ws. 5 and 6 are the doctors and p. ws. 7 and 8 are the I. Os, None was examined on behalf of the accused.
5. The trial court heavily relied upon the evidence of p. ws. 1 and 2 and disbelieving the defence version, held that the death was homicidal in nature; the accused was the author of the crime and ultimately found the accused guilty under section 302, I.P.C. read with section 27 of the Arms Act and convicting him thereunder sentenced him to undergo imprisonment for life.
6. The plea of the accused-appellant is that the accused is an ex. military man and he had a licensed gun and the evidence of p. ws. 1 and 2, who are none other than the father and widow of deceased, should not have been believed without further corroboration by independent witnesses. It is an admitted fact that the informant has long standing enmity with the accused over their paternal property. Counsel for the appellant submitsthat the finding that there was no physical obstruction to the accused while he was drawing straws by engaging a labourer and cutting the rafters is not correct. According to the learned counsel for the appellant, p. ws. 1 and 2 have categorically stated in their evidence that the informant and his son had protested to the act of the labourer who was engaged by the appellant for the purpose of drawing straws from the disputed thatched house. Learned counsel further submits that p. ws. 1 and 2 have also stated that there was protest and strenuously argues that there was no intention of the accused to fire at the deceased. According to him, there is evidence on record to the shows that the accused had trained the gun towards the informant and alleged to have stated 'Look, I am shooting' and the informant replied 'Go. shoot at your home'. As per the learned counsel for the appellant, though the gun was trained towards the informant, the pellet of the cartridge hit the deceased. Learned counsel for the appellant states that p. w. 6, the doctor, who had given treatment at the first instance at Chatrapur Hospital, in his examination-in-chief stated :--
'A penetrating wound 1/2 x 1/4 x peritoneal cavity situated 5' below the left nipple on the anterior side. The margin of the wound was irregular. There was smell of gun powder and there was blackening around the wound (black soots).'
But during cross-examination, he said :--
'No blackening or scorching will be found if the shot is fired from the distance of more than 4 feet......'
In other words, only in case of fire from a point blank range, the blackening and scorching would be found. Taking advantage of the opinion of p. w. 6, the learned counsel for the appellant submits that there is evidence on record to indicate that the gun shot was fired from a distance of more than four feet and that apart a 12-bore gun when fired does not release a single pellet, but it releases more than 10 pellets and the deceased would have received more than one injury. That apart, as per the learned counsel for the appellant, the injured was taken tothe M.K.C.G. Medical College Hospital on being referred by the doctor p. w. 6 for further treatment and the deceased ultimately succumbed to the injury in the said hospital. P. w. 5 is the doctor, who had conducted the post-mortem examination of the dead body of the deceased, and he found the following external injuries :--
'One roughly circular punctured wound which was dressed present over the leftside of lower chest wall alongwith mid-pectoral line 5 1/2' below the left nipple of size 1 c.m.X 1 c.m.X peritoneal cavity deep. The margins were irregular and abroded along the upper and inner aspect.'
On dissection the doctor found the following internal injuries :--
'.. ...the above external wound has penetrated intothe left chest cavity and the abdominal cavity in a medial and downward direction through the 7th intercostal space on the left side 3 1/2' from the sterno-costal junction. Then it had pierced disphragm and the spleen and then entered into the stomach through its posterior wall. There was massive internal haemorrhage. The left pleural cavity contained liquid blood. The peritoneal cavity was full with fluid blood with a huge blood clot over the spleenic region on the left side. The stomach also contained blood alongwith undigested food material having a hole on the left of the posterior wall. The external punctured wound along with its course internally is consistent with that of being produced by a pellet from a 12 bore gun.......'
The doctor opined that the death was due to shock as a result of internal haemorrhage. Learned counsel for the appellant submits that when a 12 bore gun is discharged, the pellets shall go in an open umbrella-like manner and the same could not have caused a single punctured injury as opined by the doctor. But the Chemical Examiner in his report (Ext. 14) has opined that chemical examination of a barrel washings of the gun (N. O. I) and the fired empty cartridge case (M. O. II) so seized revealed the presence of gun powder residue showing that the same hadbeen used for firing. M. O. II is an empty fired 12 bore reloaded cartridge and firing pin impression on M O:II matched with those on the test fired cartridge cases fired from the above gun under comparison microscope. The cartridge was a reloaded one.
7. All these facts and the evidence on record belie the story advanced by the defence that while the accused was going for a hunting, due to the scuffle that ensured between him and the informant, and his son, the gun went off. On perusal of the chemical examination report, we find that there is force in the contention of the learned counsel for the State that it is an indigenously re-packed cartridge and not a conventional one having more than 20 pellets. There is also ample evidence on record to indicate that the convict was the author of the gunshot. At this stage learned counsel for the appellant submits that there was no premeditation and there was no intention to fire at the deceased because as pet the prosecution version the gun was aimed at the informant. The previous enemity between the parties is evident from the deposition of p. w. 1 that on 17-3-1989 the accused lodged a report against the informant (p. w. 1) alleging that p. w. 1 assaulted the accused by Kati blows which ultimately resulted in the arrest and p. w. 1 remained in the jail custody for about 50 days. There is also evidence on record to indicate that some litigations were pending with regard to their property in village Ponkalpadar and a proceeding u/s. 107, Cr. P. C. was also pending. That apart, from the F. I. R. it transpires that there was altercation between the informant and the accused when the accused brandished the gun saying 'Look, I am shooting.' The informant said flamboyantly 'Go, shoot at your home.' thereby giving sufficient provocation to the accused. Thereafter though the gun was trained towards the informant, ultimately the gun shot struck the deceased. The challenge given by the informant aroused immediate reaction for commission of the offence by the accused which, in our view, was nothing but due to sudden provocation. There is no material to indicate premeditation.
8. In view of the above facts and circumstances and the materials on record, we hold that the appellant guilty of the offence punishable under section 304, Part-I, I. P. C. and convict him thereunder. Accordingly, the conviction under section 302, I. P. C. is set aside and the appellant is convicted under section 304, Part-I, I P. C,. It is stated at the bar that the appellant ts in custody for more than nine years. We, therefore, while convicting the appellant under section 304, Part-I, I.P.C., sentence him to rigorous imprisonment for the period already undergone. We do not award any separate sentence under section 27 of the Arms Act.
9. In the result, the appeal is allowed in part. The appellant be set at liberty forthwith if his detention is not required in connection with any other case.
M. Papanna, J.
10. I agree.
11. Appeal partly allowed.