JUDGMENT
A.R. Tiwari, J.
1. This appeal is preferred by the convict against the judgment rendered by the Second Addl. Sessions Judge, Shajapur in Sessions Trial No. 34/85 recording conviction under Section 302 of the Indian Penal Code and also under Section 25(l)(a) and Section 27 of the Arms Act and sentence of life imprisonment as also the Rigorous Imprisonment for six months and one year respectively under the aforesaid, sections.
2. Homicidal death, concluded trial Court. Accidental death, canvassed defence. This in essence is the issue in this appeal. The tragic element lies in the fact that a friend has lost life at the hands of another friend. This points the poignancy of the issue. The venue is the temple. What a way to make one lose life almost like oblation in a holy place through unholy act?
3. Briefly stated, the prosecution story at the trial was that the appellant, deceased and few others had gone to the temple on the day of RAM NAVMI i.e. 3-10-1984. A small contribution was demanded for the purpose of religious activity. This led to a wordy quarrel between the appellant and the deceased. The appellant who was armed with a gun, fired hitting the deceased. The deceased succumbed to the injury so caused on his person. PW. 1 Krishna Kumari lodged the First Information Report which is marked in this case as Ex. P/l. The post mortem was conducted by medical officer Dr. Hemant Kumar Sujaliya (PW 6). The post mortem-report is Ex. P-3. Spot maps Ex. P-2 and P/4 were prepared. The gun in question as also the empty cartridge were seized from the house of the appellant on his production on 14-11-1984, vide seizure-memo Ex. P/5. On completion of investigation, the challan was filed. The appellant was charged under Section 302 of the Indian Penal Code as also under Sections 25(1)(a) and 27 of the Arms Act. On trial, he was convicted and sentenced as above. His defence at the trial was that it was a case of accidental fire from the gun and there was no cause or motive to kill the deceased, his bosom friend.
4. We have heard Shri Ashok Shukla, learned counsel for the appellant and Shri Ashok Kutumbale, learned Government Advocate for the State and have perused the record.
5. Shri Shukla urged that the appellant has been wrongly convicted. According to him, there was no basis to drawn an inference either about intention or knowledge and there was no cause or motive to kill the friend. According to him, it was a case of accidental fire from the gun unfortunately hitting the friend and as such, the trial Court fell into an error in convicting the appellant. As regards the finding under Sections 25 and 27 of the Arms Act, Shri Shukla contended that it was a case of innocent possession for the purpose of adoration of the weapons on the occasion of RAM NAVMI and thus, he has been wrongly convicted under these sections as well. Lastly he submitted that at the most it may be a case of negligence on the part of the appellant resulting in liability only under Section 304A of the Indian Penel Code and in that case the benefit of Probation of Offenders Act be extended. On the other hand, Shri Kutumbale submitted that the conclusion on both the counts reached by the learned Trial Court is on firm foundation and the contentions raised by the learned counsel for the appellant are non-meritorious. He thus, submitted that the appeal deserves to be dismissed.
6. The point for determination is whether this is a case of accidental death as urged by the appellant or homicidal death as contended by the respondent and whether the conviction recorded under Sections 25 and 27 of the Arms Act is unwarranted. The controversy thus lies in a narrow compass.
7. We proceed to scrutinise the evidence in the light of the aforesaid rival contentions.
8. It is on record that the appellant and the deceased had gone to the temple together to take glimpse of the Goddess (para 2 of PW 2 Premchand). They returned together after this. PW 2 Premchand was also possessed of the gun at that time (para 1 of PW 1 Krishna Kumari). There was large gathering in the temple (para 4 of PW 2).,They had gone there talking like friends (para 4 of PW 5 Narayan). PW 1 Krishna Kumari, the niece of the deceased, had stated even before the Police that the appellant and the deceased were good friends (para 6 of PW 1) and this is proved by PW 7 Rakesh Chaurasiya, the Investigating Officer in para 15 of his statement. Even in the First Information Report, PW 1 has described the appellant as a friend of the deceased. The following features thus, emerge from this :-
(a) It was the day of festival.
(b) Even PW 2 Premchand had the gun with him, a fact indicative of the occasion of adoration of weapons on this festivity. The appellant can thus be taken to have taken the gun, belonging to his grand father Keshrimal (Ex. P/5) with him for the same purpose.
(c) The deceased and appellant were good friends and had gone together to the temple like friends.
(d) There was no pre-existing motive or cause or annoyance to treat the deceased as target for the alleged activity.
(e) The place of occurrence had large gathering and in such setting and public place the idea to commit crime of such an enormity appears to be little unnatural.
(f) There is no material to show that the appellant had the knowledge of the gun being in the loaded position.
9. In the backdrop of this, it becomes necessary to examine whether anything of sufficient serious nature had occurred on the spot, the holy place instantaneously so as to induce a friend to commit unholy act of killing his bosom friend or it was a case of accident pure and simple. We have to enubilate and lift the vizard. Let us then begin with the First Information Report (Ex. P/l). The material pericope of the First Information Report rendered in English may be aptly quoted as under :-
“Laxminarayan called all four [appellant, deceased, Premchand (PW 2)] and Narayan (PW 5) who went near him. All these four gave contribution on demand by Laxminarayan. At that time, Ashok (appellant) fired gun on some matter and Kakaji (deceased) fell down.”
Now taking this version at its face value, we notice that it did not contain any thing like wordy duel or any other matter furnishing any cause to fire at the deceased. It was also conspicuously silent as to why the gun was or had to be fired. And if the contribution was already paid then what was left for opposition or protest? It itself belied the story of PW 1 as unfolded in the Court.
10. The trial Court has concluded about the guilt under Section 302 of the Indian Penal Code on the strength of the statements of PW 1 and PW 4 Laxminarayan (Para 35 of the judgment). It was totally overlooked that this part of the story was obvious improvement over earlier versions as also the First Information Report (Ex. P/l). The Trial Court did not- appreciate that fire on the ground of contribution was out of question since it was willingly paid (Ex. P/l) and her statement about fire by stretching the gun was contrary to Ex. P/l itself. On the other hand, PW 2 Premchand had demonstrated the positioning of the gun and had categorically stated on oath that gun triggered off (Bandook Chal Gai). He did not say that it was stretched or fired by the appellant. The statement of PW 2, whose testimony is binding on the prosecution, seems to clinch the issue. We reproduce para 7 of his statement:
^^;g lgh gS fd tc je.k us v’kksd ls dgk fd rw
Hkh nks :i;k nsns rks blij v’kksd viuh ckjg cksj cUnwd ?kqekrs gq, cksyk fd py ?kj
ns nsaxsA rHkh irk ugha dSls v’kksd ls cUnwd py xbZA**
The Trial Court does not seem to have bestowed requisite attention on this part of the prosecution evidence. There is no opinion from Ballistic Expert. PW 6 Dr. Hemant Kumar Sujatiya deposed as under –
^^;fn nks pkj vkneh bdV~Bs [kMs gSa vkSj fdlh
,d cUnwd pydj ogk¡ [kMs gksusokys O;fä esa yx xbZ rks og ,DlhMsaVy Hkh gks
ldrh gSA
It may be stated that in Ex. P/3 (post mortem report) the medical officer has not opined this death as homicidal. All that the report contains is “cause of death is gun shot injury”. The mode has not been stated despite the column for this purpose. The testimony of PW 6 thus did not totally exclude the possibility of “accidental” death. In fact overall effect of the version of PW 2 and PW6 leads to this inference.
11. It is thus, clear that on one side was the testimony of PW 1, at variance with First Information Report (Ex. P/1), as also unnatural version of PW 4 Laxminarayan, vomitted out only in cross-examination while on the other side was the statement of PW 2 as also of PW 6. In fact, the immediate reaction and outcry of the victim was that “friend, what have you done, I am dead” (para 3 of PW 2). This demonstrated the element of utter surprise of’ the victim and pointed out the negligence of the victimiser, the possessor of the gun. Shocked and surprised, the victim only exclaimed and perhaps exonerated. In any case, this is clearly a case of two sets of evidence, one contradicting the other, and as such the one beneficial to the appellant must be preferred. In Harchand Singh and Anr. v. State of Haryana, AIR 1974 SC 344, it is held as under :–
“Held, it was a case wherein one set of evidence condemned the other set leaving the Court with no reliable and trustworthy evidence upon which the conviction of the accused might be based.”
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12. Despite large gathering, none is examined to despose with specificness as to the manner in which this incident actually occurred. The evidence adduced in this case does not unerringly point to the guilt as alleged.
The verdict of guilt under Section 302 of the Indian Penal Code and Section 27 of the Arms Act must, therefore be vacated so as to prevent miscarriage of justice.
13. This, however, is not the end of the matter. The appellant, not a licensee, was possessed of the gun in question. Hence, he cannot escape the liability under Section 25 of the Arms Act. Similarly, he ought to have made himself aware that it was loaded and should have handled it in the manner that it did not turn out to be injurious to others. This omission constitutes culpable negligence.
14. The word “negligence” has been discussed elaborately in a Divisional Bench Case of this Court reported in Manjula Devi Bhuta and Anr. v. Manjushri Raha and Ors., 1967 MPLJ 972 = 1968 JLJ189. It is pointed out that –
“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. (1856) 11 Ex. 781 relied on.
The’standard to determine whether a person has been guilty of negligence is the conduct of a prudent man in the particular circumstances; the amount of care, skill, diligence or the like, varying according to the particular case. The amount of care, or the like, required may thus vary to the greater extent, while the standard itself – the care, skill or diligence, of a careful, skillful or diligent man in the particular circumstances, remains the same. The degree of the care which a man is required to use in a particular situation in order to avoid the imputation of negligence varies with the obviousness of risk. If the danger of doing injury to the person or property of another by persuasion of a certain line of conduct is great, the individual who professes to pursue that particular course is bound to use great care in order to avoid the foreseeable harm. The more serious the consequences if care is not taken the greater the degree of care which must be exercised.”
-x- -x- -x- 15. In Black's Law Dictionary, this expression is defined as under :-
“The intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another; such a gross want of care and regard for the rights of others as to justify the presumption of wilfiilness and wantonness.”
16. The standard to determine whether a person has been guilty of negligence is the standard of care, which, in the given circumstances a reasonable man could have foreseen and exercised more so when handling a fire-arm like gun, in order to avoid hazard to safety of others.
17. PW 2 proved cogently that the appellant handled the gun rather negligently. He ought to have ascertained whether it was loaded or not. There is thus, failure on his part to perform manifest duty in a public place with large gathering. This negligence of duty was the root cause. Wordsworth in his ode to Duty sang –
‘Stern Daughter of the voice of God O Duty ? if that name thou love Who art a light to guide, a rod To check the erring, and reprove.’
How do we wish that the appellant had applied this rod and averted the tragic mishap ? Requisite care was thus obviously not taken. This conduct constituted negligence and has claimed the precious life of a friend. The exclamation of the victim indicated the stupidity attributable to negligence. The mishap was clearly avoidable. To this extent, the appellant must pay for the sin and atone for the casual conduct and casualty. This obloquy must fall to his lot.
18. Section 304A of the Indian Penal Code provides as under :-
“Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
19. On careful consideration of entire facts and circumstances, we conclude that the appellant is clearly liable for causing the death of his friend by doing negligent act, as discussed above and consequently, cannot escape liability on such culpability. This is how law must spring into action to keep promise to justice.
20. In the ultimate analysis, while we set aside the conviction under Section 302 of the Indian Penal Code and Section 27 of the Arms Act as also sentences imposed thereunder, we convict the appellant under Section 304A of the Indian Penal Code. It was strenuously submitted that the appellant be ordered to be released under the Probation of Offenders Act. But looking to the degree of negligence and enormity of consequence, we decline this request. After all, the penalty must match the crime and criminal. The rigour has already been softened. However, considering the young age (22 years) of the appellant, and the circumstances of the case, we think that Rigorous Imprisonment of ONE YEAR plus fine of Rs. 2,000/- (Two thousand rupees) shall amply meet the ends of justice. The conviction under Section 25 of the Arms Act as also the sentence of six months, as recorded by the Trial Court is, however, maintained with the direction that both the sentences shall run concurrently. The fine shall be deposited within one month from today in the trial Court and in default, the appellant shall suffer further sentence of rigorous imprisonment of six months.
21. We further direct that on deposit or recovery of the fine, the entire amount shall be paid to the proper legal representative of the deceased by the Trial Court. In case of there being more than one legal representative the amount shall be paid in equal proportion to each of such representatives. The Trial Court, may make any enquiry, summary in nature, for disbursement of this amount. In view of our finding as above, we also set aside the order with regard to the gun in question and direct that it shall be returned to the person holding the licence for its possession.
22. The appellant is reported to be on bail pursuant to this Court’s order dated 29-6-1986. He is directed to surrender to his bail-bonds to serve out the remaining part of the sentence as substituted by this judgment, failing which, appropriate steps shall be taken for his arrest and commitment to custody. The copy of this judgment shall be endorsed to the Chief Judicial Magistrate, Shajapur, for compliance of this direction.
23. The appeal is thus, partly allowed in the terms indicated above.