Judgment:
1. Appellants have filed the above appeals against the judgment dated 31.10.2000 passed by Special Judge (Atrocities) Rewa in Sessions Trial No. 100/2000, convicting appellant Ajju @ Ajay Kumar under Section 302 of the Indian Penal Code and appellant Santosh @ Babloo @ Pandit under Section 302 read with Section 34 of the Indian Penal Code and sentencing them to imprisonment for life with fine of Rs. 500/-.
2. According to prosecution, on 7.3.2000 at about 2.00 P.M., Dilip Choudhary went out of his house to watch T.V. at the house of Brij Kishore. When he reached in front of the house of Mohd. Rahees, he met the accused persons. He asked accused Ajju to arrange for liquor, but Ajju told him that he had no money for purchasing the same. This led to a hot altercation between Dilip and Ajju. Both the accused persons intimidated Dilip and suddenly accused Ajju took out Katta from his waist and pointed at Dilip. When Dilip tried to grab Katta, Ajju fired it. The shot hit Dilip in his abdomen. Accused persons then ran away. The incident was witnessed by Asha Devi (PW9), the Aunt of Dilip and Mohd. Rahees. Dilip was taken to G.M. Hospital, Rewa. At about 3.00 P.M., Sub Inspector Parihar of City Kotwali, Rewa received information from the police out post of G. M. Hospital that Dilip Choudhary was got admitted in the hospital as he was injured by a fire arm. A.S.I. J.P.Tiwari along with other constables reached the hospital, where Asha Devi gave Dehati Nalishi report Ex. P/11 to him. On the above report, an offence under Section 307/34 of the Indian Penal Code was registered and first information report was recorded at City Kotwali, Rewa.
3. Dr. Vijay Tiwari (PW12) in the casualty department examined the injured. Police Officer asked the doctor to record the dying declaration, but according to Dr. Tiwari Dilip was not in fit condition to give the statement so he did not record it, then A.S.I. J.P.Tiwari (PW11) himself recorded his statement Ex. P/19. At about 7.30 P.M., on the same day, Dilip died in the hospital. On the report from hospital, merg 73/2000 was registered. After inquest, the dead body of Dilip was sent for postmortem examination and the case was altered to Section 302/34 of the Indian Penal Code. Dr. D.K. Mishra (PW13) conducted the postmortem examination of the body.
4. During investigation accused persons were arrested. On the information of accused Ajju, weapon of offence Katta was recovered. After completing the investigation, charge sheet was filed and the case was committed for trial. Both the accused persons abjured their guilt and pleaded false implication. According to accused Ajju, Dilip asked him to get liquor for him, when he told him that he had no money, he quarreled with him and took out Katta. When he tried to snatch it from him, a Katta accidentally went off and the shot fired from it hit Dilip himself.
5. The case before the trial Court rested mainly on the evidence of Asha Devi (PW9), Dipu Choudhary (PW10), Phoolmati (PW1) and Shahbania (PW2), who witnessed the occurrence. The injuries of the deceased were proved by Dr. Vijay Tiwari (PW12) and Dr. D.K.Mishra (PW13). Prosecution also relied upon the police statement (Ex. P/19) as dying declaration of the deceased recorded by A.S.I. J.P.Tiwari (PW11). Trial Court relying on the above evidence held the accused persons guilty and convicted and sentenced them as mentioned earlier.
6. Learned counsel for the appellant Ajju submitted that the evidence of eye witnesses was not reliable. They had made material improvements in their statements before the Court. Witnesses Dipu Choudhary, Phoolmati and Shahbania did not see the occurrence, they merely saw the accused persons running away. According to Dehati Nalishi report Ex. P/11 lodged by Asha Devi, it was apparent that deceased himself indulged in quarrel. In the circumstances of the case, the possibility that deceased himself took out Katta, which in the scuffle accidentally went off could not be ruled out. Learned counsel for the appellant Santosh submitted that he could not be convicted with the help of Section 34 of the Indian Penal Code as there was no evidence to indicate that he knew accused Ajju had Katta in his waist and that he would suddenly take it out, therefore, his conviction was not sustainable.
7. We have heard the learned counsel of both the parties and perused the evidence and material on record carefully.
8. It is not disputed that deceased met with a homicidal death. Asha Devi (PW9), Dipu Choudhary (PW10), Phoolmati (PW1) and Shahbania (PW2) categorically stated that deceased received injury by fire arm and that he was taken to G. M. Hospital, Rewa. Dr. Vijay Tiwari (PW12) deposed that Dilip was brought to hospital. He had a gun shot injury in his abdomen. His intestines were protruding out of the wound. A.S.I. J.P.Tiwari (PW11) deposed that he received information from the hospital that on 7.3.2000, Dilip died. He recorded the merg intimation and conducted the inquest proceedings. The inquest memorandum is Ex. P/5. Dr. D.K.Mishra (PW13) conducted the postmortem examination of the body of deceased and found fire arm injury on his abdomen. Postmortem report given by him is Ex. P/27. According to him, the death of deceased was homicidal in nature. It is thus clearly established that deceased died a homicidal death.
9. Now the question before us is whether accused persons caused the death of Dilip. Asha Devi (PW9) testified that at about 2.00 P.M., when she was sitting at the door of her house, she saw Dilip going to the house of Dipu. In front of the house of Mohd. Rahees accused Ajju and Santosh met him. Dilip told them to arrange liquor for him, but they told to him that they had no money. Suddenly, Santosh abused Dilip and exhorted Ajju to beat him, whereupon Ajju took out Katta and fired at Dilip which hit in his abdomen. Dilip fell down. When she shouted, her daughter Nilam and Dipu reached at the spot and chased the accused persons, but they fled away. Dilip was then shifted to hospital. She lodged the report Ex. P/11 at hospital. In cross examination, this witness stated that she did not know whether there was any dispute between the accused persons and the deceased. They were residents of the same locality and they used to come to Dilip off and on. It appears that there was some confusion while recording the statement of this witness. Though it was typed in the chief examination that accused persons asked Dilip to arrange for liquor, but it was corrected to the effect that deceased asked for liquor from the accused persons. Asha Devi admitted that the report of the incident was written as was spoken by her and she had put thumb impression on it. On perusal of Dehati Nalishi Ex. P/11, it appears that she mentioned therein that Dilip told to accused Ajju that he should arrange for liquor, but Ajju told that he had no money to buy it, whereupon the altercation ensued. This witness though asserted that she disclosed in the report that accused Santosh exhorted Ajju to shoot Dilip, but this fact was found missing in Dehati Nalishi Ex. P/11 lodged by her. She, however, firmly denied the suggestion put to her by defence counsel that it was Dilip, who took out Katta and that it got fired when accused persons tried to snatch it away from him.
10. The evidence of Asha Devi (PW9) stands corroborated by Dehati Nalishi Ex. P/11 lodged her immediately after the occurrence and also by the statement of deceased Ex.P/19 recorded by Inspector J.P.Tiwari (PW11), which after his death can be treated a dying declaration under Section 32 of the Evidence Act. According to J.P.Tiwari (PW11), he wrote a letter Ex. P/17 to the doctor, who was treating injured Dilip, for recording his dying declaration, but since he did not do it, he himself recorded his statement. In the said statement, Dilip stated that at about 2.00 P.M., Pandit and Ajju came near his house and Ajju Lahgir fired 12 bore Katta at him. There is nothing on record to indicate that Inspector Tiwari was inimical or biased against accused Ajju.
11. From the statement of Asha Devi (PW9), it stands established that the deceased asked accused Ajju to arrange for liquor, but on his refusal he indulged in altercation and then suddenly Ajju took out Katta from his waist and fired at him causing injury in his abdomen. The evidence of Asha Devi finds support from the evidence of Phoolmati (PW1), Shahbania (PW2) and Dipu (PW10). These witnesses deposed that after hearing the sound of fire they saw accused persons running away from the spot. Dipu (PW10), though, in his chief examination stated that he saw accused persons abusing Dilip and exhorting accused Ajju to shoot Dilip, but on being confronted with his police statement Ex. D/2, these facts were found missing therein. In Ex. D/2, he merely stated that after hearing the sound of fire he came out of his house and saw Dilip lying on the ground and two persons running towards temple. He admitted that he did not disclose to police that he saw accused Santosh abusing Dilip and Ajju firing Katta at him.
12. On careful appraisal of the evidence of Asha Devi (PW9) and aforesaid witnesses, it seems to us that when accused persons refused Dilip to arrange liquor for him, he indulged in quarrel with them, and in the course of this quarrel, accused Ajju took out Katta from his waist and fired at him, as a result of which, he ultimately died. None of these witnesses attributed any overt act to accused Santosh. The part of evidence of Asha Devi and Dipu Choudhary that Santosh exhorted accused Ajju to fire at Dilip seems unreliable for the reason that this part of their evidence is clearly an improvement by them over their earlier version. It was neither mentioned in the Dehati Nalishi nor in the statements of witnesses recorded under Section 161 of the Code of Criminal Procedure. It appears true that accused Santosh was present with accused Ajju when the incident occurred, and ran away with him, but merely from that it cannot be held that he knew that Ajju was armed with Katta and was likely to fire at deceased, especially when incident occurred suddenly. In our considered opinion, accused Santosh, therefore, cannot be held liable for causing death of Dilip with the aid of Section 34 of the Indian Penal Code.
13. From the evidence of Asha Devi (PW9), it is proved that accused Ajju fired Katta at deceased and as a result of fire arm injury, deceased died. Dr. D.K.Mishra (PW13) found a fire arm wound of oval shape 3 1/2 x 2 1/2 cm. in size on the umbilicus region of the abdomen of deceased. Burn marks and tattooing were present around the wound. Wad, two discs and iron pellets were recovered from the abdominal cavity. In his opinion, the deceased had died due to Cardio Respiratory failure as a result of shock and haemorrhage due to antemortem fire arm injury. His death was homicidal. From the evidence of Asha Devi (PW9), however, it seems that deceased himself indulged in quarrel with accused Ajju when he did not accede to his demand of providing liquor to him and in that quarrel suddenly Ajju took out Katta from his waist and fired at him. It has come in the evidence of Asha Devi that deceased and accused persons were on family terms and accused used to visit deceased at his house also. In these circumstances, it cannot be held with certainty that accused Ajju intended to cause death of deceased. Therefore, in our opinion, in the circumstance Exception-4 to Section 300 of the Indian Penal Code is attracted. The conviction of accused Ajju under Section 302 of the Indian Penal Code, therefore, does not appear justified. However, since he used a fire arm, it can be held that he intended to cause such bodily injury to deceased as was likely to cause his death, therefore, his act clearly falls within the ambit of Section 304-I of the Indian Penal Code.
14. In view of the foregoing discussion-
(A) The conviction and sentence of appellant Santosh @ Babloo @ Pandit under Section 302/34 of the Indian Penal Code deserves to be and is hereby set aside. Criminal Appeal No. 2786/2000 is allowed. He is acquitted. His bail bonds and surety bonds stand discharged, and
(B) the conviction of appellant Ajju @ Ajay Kumar under Section 302 of the Indian Penal Code is set aside, instead he is convicted under Section 304-I of the Indian Penal Code and sentenced to rigorous imprisonment for 10 years with fine of Rs. 500/-. In default of payment of fine, he shall undergo further rigorous imprisonment for one month. Criminal Appeal 2727/2000 is partly allowed.