B.T.Prasanna Raju vs State Of Andhra Pradesh,
2021 Latest Caselaw 3339 AP

     THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
                             AND
     THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN

              CRIMINAL APPEAL No. 903 of 2011
                              &
               CRIMINAL APPEAL No. 23 of 2012

COMMON JUDGMENT:- (Per Hon'ble Sri Justice C.Praveen Kumar)


1)      Heard Sri. R.N. Hemendranath Reddy, learned Senior

Counsel appearing for the Appellant/Accused in Criminal

Appeal No. 903 of 2011 and Sri. Sricharan Telaprolu, learned

Counsel appearing for PW3 in Criminal Appeal No. 23 of

2012, through Blue Jeans video conferencing APP and with

their consent, the appeals are disposed of.


2)      Sole accused in Sessions Case No. 54 of 2006 on the

file of I Additional Sessions Judge, Kadapa, is the Appellant

herein. Originally, he was tried for an offence punishable

under Section 302 Indian Penal Code ['I.P.C.'] for causing the

death    of   one   C. Venkateswarlu   Raju ['deceased'],   on

18.04.2005

at about 8.40 P.M. By its Judgment, dated

28.07.2011, the learned Sessions Judge acquitted the

accused for the offence punishable under Section 302 I.P.C.,

but, however, convicted him for the offence punishable under

Section 304-A I.P.C., and sentenced him to suffer rigorous

imprisonment for a period of two years and to pay fine of

Rs.5,000/- in default to undergo simple imprisonment for

three months. Challenging the same, two appeals came to be

filed. Criminal Appeal No. 903 of 2011 is filed by the

Appellant/Accused against his conviction, while Criminal

Appeal No. 23 of 2012 is filed by the elder brother of the

deceased [PW3] questioning the acquittal of the accused

under Section 302 I.P.C.

3) The facts, in issue, are as under:

i. The accused along with PW1 and PW2 were on guard

duty at Officers Quarters at 11th Battalion, Bhakarapet.

The accused and the deceased belong to one selection

batch. By the date of incident, the deceased was

working as Police Constable in the 11th Battalion of

A.P.S.P., in Bhakarapet.

ii. On 18.04.2005, in the late evening, there was Sree

Rama Navami deity procession in the quarters. The

deceased participated in the said procession and,

thereafter, came down and laid on a cot, which was in-

front of the tent of the guard duty place. The duty of the

police guards was from 6.00 P.M. to 6.00 A.M. of the

next day. The deceased was not on duty then.

iii. PW1 along with accused and PW2 was on guard duty

from 18.04.2005 till 6.00 A.M. on 19.04.2005. The

guards on duty were supplied with 303 Rifle and 50 live

rounds of bullets each. Ex.P1A is the relevant entry in

Ex.P1, showing the charge taken by PW1 and handing

over of charge to the accused at 8.00 P.M. The said

entry was signed by both PW1 and the accused. It is

said that, after relieving himself of duty at 8.00 P.M., he

went to his quarters on motorcycle and returned back

to Officers Quarters guard duty at 8.30 P.M. While he

was at his motorcycle, heard a sound of gun fire from

the tent side of the Centry duty. Immediately, he

proceeded there and asked the accused as to what

happened. The accused is said to have informed him

that his weapon got misfired. PW1 also noticed the

deceased with fire injury on the left side of his chest

and blood oozing out from back side. PW2 who was

taking rest on another cot, woke up on hearing the

sound. Meanwhile, Chenchu Ramaiah - the Reserve

Inspector also came there and all of them asked the

accused as to what happened. The accused reiterated

his version stating that there was a misfire. PW4 also

came there and asked the accused as to what

happened, but the accused kept quiet for a while. Then,

Chenchu Ramaiah [not examined] called for an

ambulance through his handset. PW5 who was on

emergency duty took the ambulance bearing no. AP 9B

1836 and proceeded towards the scene, where he found

the deceased lying on a cot with a blood injury on the

left side of the chest. Chenchu Ramaiah closed the

guard and asked PW1 to hand over the accused, 303

Rifle and 49 live cartridges to the Duty Officer -

Bojappa. PW1 and P.C.711 took the accused, weapon

and handed over them to Bojappa [not examined].

iv. PW8 who was working as Commandant of XI Battalion

on receiving the said information proceeded to

Government Hospital, Kadapa, and was informed that

the duty doctor examined the injured and declared him

dead. He then went back to Bhakarapet and visited the

scene of offence. He noticed blood stains and iron

strings of the cot were snapped with blood stains at the

scene of offence. He wrote a report to Sidhout Police

and sent it through concerned. Ex.P6 is the complaint

sent by him.

v. PW13 received a report on 19.04.2005 vide Ex.P6

through PW9, basing on which he registered a case in

Crime No. 30 of 2005 for an offence punishable under

Section 302 I.P.C. Ex.P11 is the First Information

Report sent to the court. He posted a guard at the scene

and further investigation was handed over to PW15 -

Inspector of Police, who on receipt of the copy of

Ex.P11, proceeded to the scene of offence and recorded

the statements of PW8 and PW9. He also prepared an

observation report of the scene in the presence of PW10

under Ex.P7 [seizure panchanama]. During the course

of the said panchanama, he also seized M.O.2 [iron cot],

M.O.9 [blood stained earth], M.O.10 [control earth],

Ex.P2 [in and out register of 'B' Company] and Centry

relieve book. Thereafter, he visited Government

Hospital, Kadapa, and in the presence of PW7

conducted inquest over the dead body of the deceased

from 8.00 A.M. Ex.P5 is the inquest report. During

inquest, he examined PW3 and others and recorded

their statements. The clothes of the deceased were

seized during inquest. Thereafter, the dead body of the

deceased was sent for post-mortem examination.

vi. PW11 - the Civil Assistant Surgeon at District Hospital,

Kadapa, conducted autopsy over the dead body of the

deceased and issued Ex.P9 - post-mortem certificate.

According to him, the deceased appear to have died of

cardio respiratory failure due to shock and hemorrhage

due to injury to vital organ like heart and lungs.

vii. PW15, who continued with the investigation, visited the

quarters guard of 11th Battalion, verified the Register of

'B' Coy, which contained an entry dated 18.04.2005

made at 5.00 P.M., which show the accused took But

No.898 of 303 Rifle, Mark-III along with 50 rounds of

cartridges, signed against the entry and on 19.04.2005

at 7.00 A.M. H.C. Sailesh Raju deposited the above said

rifle along with 49 live rounds and one empty case, as

per orders of DC Headquarters. Ex.P2A and Ex.P3 are

the relevant entries at Pg. No. 82 and 83. The said rifle

was seized as M.O.1 and the empty case as M.O.3,

under Ex.P8 [Panchanama]. Later on, he prepared a

letter of advice to send the property for examination of

Forensic Science Lab, but, however, in the meanwhile,

the investigation was taken up by PW14. However, he

placed on record Ex.P12 - letter of advice and Ex.P13 -

opinion of RFSL, which indicates that M.O.1 - rifle was

used and the range of fire is about more than four feet

i.e., not a close range firing.

viii. PW14, who took up further investigation, arrested the

accused on 18.05.2005, on the eve of his discharge

from hospital as he sustained injuries when he jumped

from the A.P.S.P. Building to commit suicide. After

collecting all the necessary documents, PW14 filed a

charge-sheet, which was taken on file as P.R.C. No.17

2005 on the file Judicial Magistrate of First Class,

Sidhout.

4) On appearance of the accused, copies of documents as

required under Section 207 Cr.P.C., came to be furnished.

Since the case is triable by Court of Sessions, the matter was

committed to the Sessions Court under Section 209 Cr.P.C.

Basing on the material available on record, charge as referred

to above came to be framed, read over and explained to the

accused, to which, he pleaded not guilty and claimed to be

tried.

5) In support of its case, the prosecution examined PW1 to

PW15 and got marked Ex.P1 to Ex.P14, beside marking

M.Os. 1 to 11. After completion of prosecution evidence, the

accused was examined under Section 313 Cr.P.C. with

reference to the incriminating circumstances appearing

against him in the evidence of prosecution witnesses, to

which he denied. In support of his plea, the accused got

marked Ex.D1.

6) Believing the version of PW1 to PW5 coupled with RFSL

opinion [Ex.P13] relating to usage of weapon and absence of

any 'motive' being suggested, the learned Sessions Judge

while acquitting the accused for the offence punishable under

Section 302 I.P.C., held that it was a case of accidental firing

and accordingly, convicted the accused for the offence

punishable under Section 304A I.P.C. Challenging the same,

these two appeals came to be filed.

7) (i) Sri. R.N. Hemendranath Reddy, learned Senior

Counsel appearing for the Appellant/Accused would submit

that there are number of circumstances to indicate that the

incident did not happen in the manner suggested by the

prosecution. According to him, an adverse inference has to be

drawn for not sending the cartridges to Forensic Science Lab

for its report. According to him, the evidence of the witnesses

throws as to whether it was the accused who fired at the

deceased, more so, when there was more than one person

present in the tent. In the absence of any eye witness being

present, it is not safe to convict the accused. He further

submits that there is any amount of doubt with regard to the

weapon and cartridges used in the incident, more so, when

discrepancies are noted in the evidence of the witnesses as to

when and by whom the rifle and the cartridges were

deposited.

(ii) In view of the circumstances pointed out, the

learned Counsel submits that the trial court having acquitted

the accused for the offence punishable under Section 302

I.P.C. and having found that it was only a case of accidental

fire, ought to have invoked the provisions of the Probation of

Offenders Act, 1958, before passing the sentence.

8) Sri. Sricharan Telaprolu, learned Counsel appearing in

the appeal filed by PW3 would submit that the evidence of

PW3 and PW5 amply establish that it was the accused who

intentionally fired at the deceased. He further took us

through the RFSL report and the opinion given thereunder to

show that it was not a case of accidental fire. He further

submits that when the accused fired at the deceased while he

was lying on a cot, the Trial Court ought to have convicted

the accused for the offence punishable under Section 302

I.P.C. He further submits that this appeal filed by the

accused is not maintainable as the appeal filed by the State

was dismissed at the admission stage, confirming the

conviction and sentence.

9) Before dealing with the merits of the case, the first

question which requires consideration is whether this appeal

filed at the instance of the accused against his conviction

under Section 304A I.P.C., is maintainable, when the appeal

filed by the State for the offence punishable under Section

302 I.P.C., was dismissed?

10) It is to be noted here that, against the acquittal of the

accused for the offence punishable under Section 302 I.P.C.,

the State preferred an appeal before this court vide Criminal

Appeal No. 1079 of 2013. At the admission stage itself, the

court went into the merits of the case and on 04.11.2013

dismissed the appeal, stating that the conviction under

Section 304A I.P.C., needs no interference by the court. It

would be appropriate to extract the findings given in

paragraph no. 15 and 16, as under:

"15. Insofar as offence under Section 304-A IPC is concerned, it can be said to be negligent or rash act. Any prudent person can be careful with a firearm and he has to follow all reasonable precautions in handling with firearm. Negligence is a gross and culpable neglect or failure to exercise the reasonable and proper care which was the imperative duty of the person accused of an offence to have exercised. The precautions which ought to have taken by the accused, have not been taken by him and thereby he was negligent in handling the firearm, resulting loss of a human being. Therefore, considering these aspects, the trial Court found the appellant/accused guilty of the offence punishable under Section 304-A IPC and that judgment needs no interference by this Court.

16. Accordingly, the Criminal Appeal is dismissed at the stage of admission confirming the judgment, dated 28.07.2011, in Sessions Case No.54 of 2006 on the file of the I Additional Sessions Judge, Kadapa. Miscellaneous Petitions pending, if any, in this Criminal Appeal shall stand closed."

11) The issue as to whether an appeal would lie at the

instance of the accused came for consideration before the

Hon'ble Supreme Court in Nirbhay Singh v. State of

Madhya Pradesh1. Dealing with the issue, the Hon'ble

Supreme Court in paragraph no. 4 and 5, held as under:

(1969) 2 SCR 569

"4. There is however no warrant for the argument that when an appeal preferred by a person convicted of an offence is dismissed summarily by the High Court under Section 421 of the Code of Criminal Procedure, the judgment of the trial Court gets merged in the judgment of the High Court and it cannot thereafter be modified even at the instance of any other party affected thereby, and in respect of matters which were not and could not be dealt with by the High Court when summarily dismissing the appeal. When the High Court dismisses an appeal of the person accused summarily and without notice to the State, the High Court declines thereby to entertain the grounds set up for setting aside the conviction of the accused. That judgment undoubtedly binds the accused and he cannot prefer another appeal to the High Court against the same matter in respect of which he had earlier preferred an appeal. But it is a fundamental rule of our jurisprudence that no order to the prejudice of a party may be passed by a Court, unless the party had opportunity of showing cause against the making of that order. When an appeal of a convicted person is summarily dismissed by the High Court the State has no opportunity of being heard. The judgment summarily dismissing the appeal of the accused is a judgment given against the accused and not against the State or the complainant. If after the appeal of the accused is summarily dismissed, the State or the complainant seeks to prefer an appeal against the order of acquittal, the High Court is not prohibited by any express provision or implication arising from the scheme of the Code from entertaining the appeal. Where, however, the High Court issues notice to the State in an appeal by the accused against the order of conviction, and the appeal is heard and decided on the merits, all questions determined by the High Court either expressly or by necessary implication must be deemed to be finally determined, and there is no scope for reviewing those orders in any other proceeding. The reason of the rule is not so much the principle of merger of the judgment of the trial Court into

the judgment of the High Court, but that a decision rendered by the High Court after hearing the parties on a matter in dispute is not liable to be reopened between the same parties in any subsequent enquiry.

5. Cases do frequently arise where a person is charged at the trial with the commission of a grave or major offence and he is convicted of a minor offence, the conviction for the minor offence amounting to his acquittal for the major offence. Where an appeal against the order of conviction of the minor offence at the instance of the convict is entertained and decided, the State having opportunity of being heard on the merits of the dispute, in an appeal subsequently filed at the instance of the State against the order of acquittal, the High Court is precluded from reconsidering all those matters which were expressly decided or flow as a necessary implication of the earlier judgment. Any other view is likely to cause the gravest inconvenience in the administration of justice and the principle of finality of judgments would be sadly disturbed. If, for instance, against an order of acquittal passed for a grave offence, the State prefers an appeal and the appeal is summarily dismissed, it would be impossible to contend that thereby the accused is prevented from filing an appeal against the order of conviction. Similarly where the accused prefers an appeal against the order of conviction of a minor offence and that appeal is summarily dismissed, the accused cannot prefer another appeal, but the State will not be precluded from preferring an appeal against the order of acquittal because the State had no opportunity of being heard at the earlier stage. Where, however, notice had been issued in an appeal at the instance of the accused and the State had an opportunity of being heard, the decision of the court will be regarded as a decision on the merits of the transaction which resulted in the conviction of the accused and that decision cannot be reopened in any subsequent enquiry. These principles are, in our judgment, supported by abundant authority.

12) From the above, it is very much clear that, against an

order of acquittal passed for a grave offence, the State prefers

an appeal and when the appeal is summarily dismissed, it

cannot be said that the accused is prevented from filing an

appeal against the order of his conviction against minor

offence. Having regard to the judgment of the Hon'ble Apex

Court referred to above and more particularly the contents in

paragraph 5, the argument of the learned counsel appearing

in Criminal Appeal No. 23 of 2012 that appeal itself is not

maintainable may not be correct.

13) Coming to the merits of the case, it is now to be seen

whether the conviction recorded under Section 304A I.P.C.,

warrants interference?

14) It is no doubt true that there are no eye witnesses to

the incident and the case rests on circumstantial evidence.

PW1, PW2 and PW4 are the three witnesses who proceeded to

the scene of offence after hearing the gun shot sound. They

noticed the presence of A1 with a weapon in his hand and the

body of the deceased on the cot near to the accused with a

wound on left side chest and blood oozing out from back side.

15) PW1 in his evidence deposed that, on 18.04.2005 at

about 8.00 P.M., he handed over the charge to the accused

and left to his quarters for dinner. He returned back at 8.30

P.M., and while he was standing at the vehicle, heard gun

shot sound. He immediately proceeded towards the tent and

found accused with his weapon and when enquired, the

accused stated that there was misfire of his weapon. He

noticed the deceased lying on a cot with a injury on left side

of the chest and blood oozing out from back side. PW1 also

speaks about the presence of PW2 in the tent at that time,

but, PW2 who was sleeping, woke up on hearing the gun fire

sound. When PW2 enquired the accused, the accused told

him that his firearm misfired. PW4 also came there and also

asked the accused why he did like that, but, however, the

accused kept quiet. Then the Reserve Inspector Chenchu

Ramaiah informed about the incident in handset, pursuant

to which, an ambulance came and the injured was shifted to

hospital. The said Chenchu Ramaiah also asked P.C.1033

and PW1 to hand over the accused, 303 Rifle and the

remaining 49 live cartridges to the Duty Officer - Bojappa.

His evidence also discloses about the seizure of M.O.3 - the

shell fire cartridge at the scene, and also M.O.1 - the rifle

used in the commission of the offence. Though, PW1 was

cross-examined, nothing, in our view, has been elicited to

discredit his testimony, except his opinion that that it was an

accidental fire. Further, the witness states that the deceased

was allotted a family quarter and he was not on guard duty

on the date of incident. He further admits that, the deceased

entered into the guard area, and he did not hear the accused

uttering the words "THUMB KHONE ATAHHAI". It is said

that, if there is no response for the said word, in the absence

of Guard Commandant, Centry has to take decision. Such

liberty is given to the Centry to safeguard the guard area and

safeguard the camp area. To a suggestion that to safeguard

him, the accused coined with the liability was denied by him.

16) PW2 was present in the tent at time of incident, and he

was lying on a iron cot on the northern side. According to

him, at about 8.30 P.M. he heard the sound of gun fire. On

hearing the same, he jumped from the cot and saw a firearm

injury on the left side chest of the deceased and blood oozing

out. The accused was standing near the cot, armed with 303

Rifle. He also speaks about accosting the accused as to what

happened, to which the accused replied stating that his rifle

misfired. The evidence of this witness corroborates the

evidence of PW1 in all material aspects.

17) PW4 in her evidence deposed that her husband was

working as Additional Commandant of XI Battalion and that

they used to reside at the quarters allotted to them at

Bhakarapet. A security guard tent was erected in front of

their quarters and that she knows the accused and the

deceased, in the case. According to her, on 18.04.2005,

which was Sree Rama Navami day, while she was at her

house, the procession of deity came to her house, at which

point of time, she performed puja and, thereafter, she and

one Indravani were talking with each other inside her house.

At about 8.45 or 9.00 P.M., she heard a sound of firearm.

She came out and saw the accused holding a rifle with his

hand in a standard position and another constable lying on

the iron cot with bleeding injury. When PW4 questioned the

accused why he did so, he kept silent. The injured was

identified as orderly constable. Thereafter, the injured was

shifted to hospital. Nothing has been elicited in the cross-

examination of this witness to discredit her version in-chief.

18) From the evidence of these three witnesses, it is very

clear that it was the accused who was holding the firearm at

the time when they went there and when he was questioned

by PW1 and PW2, he informed them that there was a misfire

from his gun. However, when PW4 questioned the accused,

there was no response from him.

19) At this stage one of the arguments advanced by the

learned counsel appearing for the accused is that, since the

deceased was an intruder, there is every possibility of

accused using the firearm at the deceased. We are not in a

position to accept the same. The deceased and the accused

are from the same battalion and known to each other. Things

would have been different had the deceased was a stranger.

Further, if he wants to use the firearm in the absence of any

commandant, he can do so, but, before the use of the same,

he should warn him by uttering the words "THUMB KHONE

ATAHHAI". The evidence of PW1 would show that the accused

never uttered those words before using the firearm.

20) At this stage, it would be useful to refer to the evidence

of PW6, who in his evidence deposed that on 18.04.2005 he

delivered 303 Rifle with But No. 898 with 50 live rounds of

cartridges to the accused and made an entry at page 82 of

the "B" Register to that effect. The accused is said to have

signed in token of receipt of the same. Ex.P2 is the In and

Out register of 'B' Company, and the relevant entry is

Ex.P2A. Thereafter, on 19.04.2005, he handed over 303 Rifle

with But No. 898 and 49 live cartridges. Ex.P3 is the relevant

entry in the Register.

21) The learned Counsel for the Appellant tried to contend

that this circumstance by itself does not establish the

prosecution case, as there is every possibility of handing over

one cartridge less to PW6 so as to implicate the accused in

the crime. At first blush, the said argument appeared to be

impressive, but, a close perusal of the record proved it to be

otherwise. The answers elicited in the cross-examination of

all witnesses does not anywhere suggest any 'motive' for

implicating the accused falsely in the case. In-fact, no motive

was suggested to any of the witnesses to speak falsehood

against the accused. All the suggestions given were with

regard to the manner in which the rifle was used etc., and

the same were denied. In-fact, PW6 categorically stated that,

on 19.04.2005, he gave a complaint to the Duty Officer about

non-return of rifle and live cartridge within half-an-hour after

completion of his guard duty and, accordingly, Chenchu

Ramaiah returned the weapon and cartridge given to the

accused, but, he has not signed in Ex.P3 Register on that

night. But, however, while giving evidence he speaks about

handing over of the live cartridges and weapon on the next

day and non-mentioning of time in Ex.P2. This circumstance,

in our view, may not go to the root of the matter so as to

throw out his entire version as false, more so, when he was

treated hostile only when he mentioned that Ex.P2 register

was seized on 20.04.2005 at 5.00 P.M. but in the cross-

examination by Additional Public Prosecutor, he admits that

it was seized on 19.04.2005 at 5.00 P.M. itself.

22) At this stage, it was argued that the version of the

investigating officer - PW15 and the evidence of PW6 that the

register was seized on 19.04.2005 cannot be believed because

by the date of making seizure, entry at page no. 83 shows an

entry dated 20.04.2005, which probabilizes that on

19.04.2005 a seizure entry was made with anti date of

20.04.2005. It is to be noted here that, whether the seizure

was on 19.04.2005 or 20.04.2005 with anti-date does not

assume much importance to doubt the prosecution case. It is

the specific case of the prosecution that under Ex.P2A, the

accused himself signed in respect of taking of M.O.1 - rifle

and 50 live cartridges and only 49 cartridges were found with

the accused. Neither PW1, PW2, PW4 nor to any other

witness, it was suggested that the accused handed over 50

live cartridges and that the version of the prosecution that

only 49 cartridges were handed over is false. This

circumstance coupled with the fact that M.O.3 - empty shell

was recovered at the scene, stands establish that it was the

accused who fired at the deceased.

23) At this stage, it is also to be noted that, immediately

after the incident, PW1, PW2 and PW4 proceeded to the scene

and noticed the accused standing with the weapon and when

questioned, he confessed about misfire of the weapon. This

statement of the accused can also be treated as an extra-

judicial confession and the same can be believed as it was

made before persons who had neither enmity or ill-will to

speak against the accused nor was it suggested to these

witnesses that they are intentionally speaking false.

24) Coming to the M.O.1, [the weapon used], the Counsel

mainly relied upon the entry in Ex.P13, wherein, there is a

reference to No. 3903. Having regard to the above entry, it is

urged that the rifle which was seized and the rifle which was

used are different. But the entry in Ex.P2A show that what

was given to the accused was a rifle having But No. 898 and

what was deposited later on is also a rifle But No. 898. The

same is also reflected in seizure panchanama by PW15,

which is marked as Ex.P8. No. 3903 which is reflected in

Ex.P13 was with reference to Maxine, which was found with

the rifle. Therefore, it cannot be said that the prosecution

tried to change the number so as to connect the accused with

the crime.

25) Coming to the competency of rifle to fire, Ex.P13 report

categorically states that the analyst testified and it fired well

and its action mechanism was in perfect condition. At this

stage, it would be refer to Order 522 of Police Manual. The

order refers to the common causes for accidents of fire arms.

Various reasons are given for accidental misfire of fire arms.

When misfiring of firearm takes place, the culpability is

attributable to the person maintaining it and holding it.

26) One another circumstance, which supports the case of

the prosecution is the evidence of PW11 and contents of

Ex.P9 - the post-mortem report, wherein the entry wound is

over the left lower chest 7 cms., below the medial of the left

nipple 6 cm., lower end of sternum round in shape, 7 cms.,

in diameter, margins charred and contuse, edges inverted

going deep into thoracic cavity. Whereas the exit wound was

penetrating firearm injury on the upper part of the back on

the left side 15 cm., below the occipital protuberance 16 cm.,

medial to the left shoulder. From the above, it is clear that

the bullet entry was at the lower end of sternum, which

passed upward in the body and came out of the body of the

deceased in the upper part of the back. The angular passage

of the bullet show that the firing on the deceased was while

he was lying. If firing was done against the deceased while he

was standing, the entry and exist wounds would at the same

height of the body without any angle.

27) Therefore the placement of entry and exit wound makes

it clear that the incident in question took place while the

accused was in standing position and the deceased was lying

on cot, which is the case of the prosecution. From the

circumstance referred to above, it is clear that the incident in

question took place and the accused is responsible for the

same.

28) At this stage, the learned counsel for the appellant in

Crl. A. No. 23 of 2012 vehemently submits that this is a case

where the accused should have been convicted for the offence

punishable under Section 302 I.P.C.

29) In order to constitute an offence under Section 302

I.P.C., it is to be seen from the evidence of the prosecution

witnesses, whether their evidence discloses any motive or

intention for the accused to cause death of the deceased or

the injury with knowledge that it is sufficient in ordinary

course of nature to cause death.

30) As stated, the learned Counsel for the Appellant relies

upon the evidence of PW3, who admittedly is not an eye

witness to the incident. PW3 in his evidence deposed that, on

18.04.2005 at about 9.00 or 10.00 P.M., he received a phone

call from a Constable, who informed that due to gun fire by

the accused against the deceased, he received injuries and

taken to the hospital. On such information, PW1 proceeded

to the Government Hospital, where he came to know about

the death of the deceased. His enquires revealed that the

deceased went to the security post tent and laid on the cot,

then the accused opened fire and that the accused is

responsible for the death. He is not an eye witness to say that

the accused intentionally opened fire at the deceased. He

does not disclose the source of the said information as well.

31) Similarly, PW5 is also not an eye witness to the

incident. He came to know on receipt of a phone call from

the Commandant for bringing an ambulance to the scene. In

cross-examination, he admits that he did not enquire any

person who witnessed the opening of fire by the accused. He

further admits that, by the time he went to the guard duty

place, the Commandant was not present and with the help of

the persons present he took the injured to the hospital.

32) The evidence of these two witnesses do not anywhere

indicate that the accused fired at the deceased intentionally

with a view to cause his death. As stated by us earlier, none

of the witnesses speak about any enmity or ill-will between

the accused and the deceased. Further, in the Criminal

Appeal filed by the State against the acquittal of the accused

under Section 302 I.P.C., this court dismissed the same at

the admission stage.

33) Having regard to the above and in view of the evidence

of PW1, PW2 and PW4, before whom the accused is said to

have confessed as to the manner in which the incident took

place, the finding of the trial court convicting the accused for

the offence punishable under Section 304A I.P.C., cannot be

found fault with.

34) At this stage, the learned counsel for the Appellant

submits that since the entire incident occurred in an

accidental manner and there is no mens rea, pleads that the

Appellant may be released under Probation of Offenders Act,

1958.

35) The Appellant herein is convicted for the offence

punishable under Section 304A I.P.C. and the maximum

punishment, which can be awarded is two [02] years, or with

fine, or with both.

36) Section 3 of the Probation of Offenders Act, reads as

under:

"3. Power of court to release certain offenders after admonition.--

When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition.

Explanation.--For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4."

37) Similarly, Section 4 of the Probation of Offenders Act,

reads as under:

"4. Power of court to release certain offenders on probation of good conduct.--

(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:

Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a

supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.

(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned."

38) It appears from the record that there is no previous

conviction against the accused. To release a person under the

provisions of the Probation of Offenders Act, the court shall

take into consideration the report, if any, of the Probation

Officer concerned in relation to the case. As stated by the

Hon'ble Apex Court in Dalbir Singh v. State of Haryana2

AIR (2000) SC 1677

that, if the court forms the opinion that it is expedient to

release the offender on probation for his good conduct regard

being had to the circumstances of the case. One of the

circumstances which cannot be sidelined in forming the said

opinion is "the nature of the offence". Thus Section 4 can be

resorted to when the court considers the circumstances of the

case, particularly the "nature of the offence" and the court

forms its opinion that it is suitable and appropriate for

accomplishing a specified object that the offender can be

released on probation of good conduct.

39) In view of the findings, we hold that the conviction of

the accused for the offence punishable under Section 304A

I.P.C., warrants no interference. In a case punishable under

Section 304A I.P.C., one cannot infer any mens rea or guilty

intention. It is also to be noted here that the maximum

punishment that can be imposed for an offence punishable

under Section 304A I.P.C., is two [02] years. Having regard to

the above, we feel that it is a fit case to invoke the provisions

of the Probation of Offenders Act while maintaining the

conviction under Section 304A I.P.C. Accordingly, Criminal

Appeal No. 23 of 2012 filed by PW3 seeking conviction for the

offence punishable under Section 302 I.P.C., is dismissed,

while Criminal Appeal No. 903 of 2011 filed by the accused is

allowed to the extent indicated above.

40) At this stage, it is to be noted that in order to release a

person under Probation of Offenders Act, the court invoking

the provisions of the Act, shall call for a report from the

Probation Officer and then pass orders in terms of the

provision of the Act.

41) Sri. R.N. Hemendranath Reddy, learned Senior Counsel

appearing for the Appellant/Accused submits that since the

Appellant is residing in Kadapa, a report may be called for

from the Probation Officer of Kadapa District.

42) The learned Public Prosecutor on instructions submits

that there is no Probation Officer in Kadapa District and, as

such, pleads passing of an Order in terms of Section 13 (2) of

the Probation of Offenders Act.

43) In view of the representation made by the learned

Public Prosecutor, the District Magistrate, Kadapa, or any

other person authorized by him or any person appointed by

him to act as Probation Officer, shall submit a report to this

court in terms of the provisions of the Probation of Offenders

Act, in respect of the Appellant, within a period of two weeks

from today, so as to enable this court to pass appropriate

orders, on the terms on which he has to be released.

44) Further, the learned Public Prosecutor as well as the

Counsel for the Appellant or the Appellant shall communicate

a copy of this Order to the District Magistrate, Kadapa, for

taking necessary steps in this regard. It is needles to mention

that the Appellant/accused shall cooperate with the

authorities, enabling them to send the report to this court at

the earliest.

_______________________________ JUSTICE C. PRAVEEN KUMAR

______________________________ JUSTICE B.KRISHNA MOHAN

Date: 03.09.2021.

SM/

THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN

CRIMINAL APPEAL No. 903 of 2011 & CRIMINAL APPEAL No. 23 of 2012 (Per Hon'ble Sri Justice C.Praveen Kumar)

Date: 03/09/2021

S.M.