Parasnath Laxman Dubey vs The State Of Mah.Thr.Pso ...
2018 Latest Caselaw 977 Bom

 apeal139.04.J.odt                         1




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                     CRIMINAL APPEAL NO.139 OF 2004

          Parasnath s/o Laxman Dubey,
          Aged 43 years,
          Occu: Service,
          R/o. Nagva, Tahsil & District: Baksar,
          P.S. Simri (Bihar) at present W.C.L.
          Colony DMR Q.No. 317, Padmapur. ....... APPELLANT

                                   ...V E R S U S...

          The State of Maharashtra,
          through P.S.O. Ramnagar,
          Chandrapur.                                        ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri R.P. Joshi, Advocate for Appellant.
          Ms. S.V. Kolhe, APP for Respondent-State.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:                th
                            25    JANUARY 2018.


 ORAL JUDGMENT



 1]               The appellant Parasnath Laxman Dubey is convicted

for offence punishable under Section 307 of the Indian Penal Code

("IPC") and is sentenced to suffer rigorous imprisonment for two

years and to payment of fine of Rs. 3000/- and is further

convicted for offence punishable under section 25(1-B)(a) read

with Section 3 of Arms Act, 1959 and is sentenced to suffer

rigorous imprisonment for one year and to payment of fine of

Rs.1000/-. This judgment and order of conviction dated

11.02.2004 rendered by the learned 4th Adhoc Additional Sessions

Judge, Chandrapur in Session Trial 66 of 2001, is impugned

herein.

2] The genesis of the prosecution case is the oral report

dated 25.06.2000 lodged at Police Station Ramnagar, Chandrapur

by Shri Santosh Thakre (P.W.7) accusing the accused of having

attempted to murder him. The gist of the report is that the

relationship between P.W.1 informant and the accused was

strained. The accused had threatened to shoot the informant.

On 23.06.2000 the accused confronted the informant about a

purported statement that the informant would shoot the son of

the accused. The informant denied having said so. The informant

asked the accused to verify the factual position from the

neighbours, the accused declined and asked his son to fetch a

stump and, tried to assault the informant with the stump.

The family of the accused and the wife of the informant

intervened. No complaint was lodged since the informant was

persuaded not to lodge a complaint, by neighbours and others.

3] The incident occurred on 25.06.2000 at 07:30 a.m.

when the informant was standing in front of the house and was

brushing his teeth. The accused accosted the informant and

angrily uttered that the accused will shoot and kill the informant.

The informant said to the accused that he is a poor person and

what harm has he (informant), caused to the accused.

Accused Parasnath Dubey immediately went to his house, came

out with a gun, aimed it at the informant and threatened to kill

him. A frightened informant called his wife Ranjana and

neighbour Balkrushna and others from the neighbourhood

gathered at the scene. The accused Parasnath Dubey aimed the

gun at the informant and fired from a distance of 15 to 20 feet.

The informant saved himself by bending down. The bullet passed

from near the right shoulder and hit the wall of the house of the

informant. The accused was taken inside the house by his wife

and son.

4] Investigation ensued and charge-sheet was submitted

in the court of Chief Judicial Magistrate, Chandrapur, who

committed the proceedings to the Sessions Court. The learned

Sessions Judge framed charge (Exh.16) under Sections 307 of IPC

and under Section 25(1-B)(a) read with Section 3 of the Arms Act,

1959. The accused abjured guilt and claimed to be tried.

The defence is of total denial and false implication.

5] Heard Shri R.P. Joshi, the learned counsel for the

accused and Ms. S.V. Kolhe, the learned Additional Public

Prosecutor for the respondent-State.

6] At the very outset the learned counsel for the accused

submits that concededly, previous sanction under Section 39 of

the Arms Act was not obtained by the prosecution and the

conviction under Section 25(1-B)(a) read with Section 3 of Arms

Act, is illegal in view of the absence of sanction. The factual

position that sanction was not obtained is not disputed by the

learned Additional Public Prosecutor Ms. S.V. Kolhe. The learned

Additional Public Prosecutor fairly does not dispute that since the

accused was charged under Section 25(1-B)(a) read with section

3 of Arms Act, previous sanction was a sine quo non. In view of the

admitted position, the conviction under Section 25(1-B)(a) read

with Section 3 of Arms Act is unsustainable.

7] In so far as the conviction under Section 307 of IPC is

concerned, the pivotal issue is whether the prosecution has

established beyond reasonable doubt that the accused intended to

cause death or to cause such injury as is likely to result in death or

the knowledge that death is likely to be caused or such injury is

likely to be caused which in every probability will result in death,

can be attributed to the accused. The submission of the learned

counsel for the accused is that the evidence on record would

negate the existence of both intention and knowledge and the

accused can be convicted, if at all, under Section 336 of the IPC.

8] The submission of the learned counsel for the accused

is that it is highly improbable that the accused who is a

ex-serviceman, would miss the target by a huge margin, if he

intended to kill P.W.7-complainant. The requisite knowledge also

can not be attributed to the accused, to bring the act within the

four corners of the definition of attempt to murder, is the

submission. The submission of the learned counsel for the accused

Shri Joshi is not without substance. The accused, acting out of a

misplaced sense of bravado appears to have fired the gun to

frighten P.W.7 to death and to derive a sadistic and perverse

pleasure. In the teeth of the evidence on record, to which I will

advert at a later stage in the judgment, it is difficult to hold that

the ingredients of Section 307 of IPC are established.

9] P.W.7, who is the complainant has deposed that at

07:30 a.m. the accused asked him whether he should show him a

gun "canwd nk[kow dk". The complainant, who was standing outside

brushing teeth went inside the house to inform his wife Ranjana

(P.W.8). The complainant and his wife came out of the house, the

accused came in front of the complainant with the gun and fired a

bullet which passed near the ear of the complainant. P.W.7 states

that his life was saved because he was pushed by his wife Ranjana.

The bullet was fired from distance of 10 to 15 feet, is the

deposition. The wife of the complainant-Ranjana (P.W.8) has

deposed that no sooner the accused fired a bullet, she and her

husband sat down. She states that the bullet fired by the accused

hit the wall of the quarter of P.W.10 Balkrushna Nindekar.

10] P.W.10 Balkrushna Nindekar who is an eye witness,

has deposed that there was a quarrel between the accused and the

complainant two days prior to the incident and the accused then

threatened the complainant. The complainant was brushing his

teeth, the accused came out his house with a rifle and fired a

bullet on the person of the complainant, the complainant bent

downwards and the bullet hit the wall of his (P.W.10) house, is

the deposition. P.W.10 states that the distance between the

accused and the complainant was 5 feet. In the cross-examination,

P.W.10 states that the pellets spread while the bullet was

travelling towards the wall.

11] The three witnesses are not consistent as regards the

distance between the accused and the complainant.

The complainant P.W.7 Santosh Thakre asserts that the bullet was

fired from the distance of 10 to 15 feet, P.W.8 Ranjana Thakre

does not speak of the distance while P.W.10 Balkrushna Nindekar

states that the bullet was fired from 5 feet. P.W.7 complainant

states that he was saved since his wife pushed him, P.W.8 Ranjana

states that she and P.W.7sat down on the ground while P.W.10

Balkrushna Nindekar states that P.W.7 bent downwards. It is not

in dispute, that the bullet hit the wall of the quarter of P.W.10

Balkrushna Nindekar at a height of 8 feet from the ground.

The prosecution has not brought on record the height of the

complainant P.W.7. Even if the evidence on record is accepted and

an attempt is made to reconcile the distance between the accused

who fired the bullet and the complainant, the range is between 5

feet (as deposed by P.W.10) and 10 to 15 feet (as deposed by

P.W.7 complainant), which indicate that in every probability the

bullet was fired by the ex-service man from a very close distance.

It is not the case of the prosecution that the bullet was not fired

from an erect position or that the accused was crouching. The fact

that the bullet hit the wall at height of 8 feet creates a reasonable

doubt about the assertion of the prosecution witnesses that the

accused intended to kill the complainant. What is more probable,

as is submitted by Shri R.P. Joshi, is that the accused wanted to

put the fear of death in the complainant. The firing of the bullet

was a deplorable conduct. Statistic and perverse pleasure was

probably intended to be derived. The act was certainly rash.

However, it is difficult to hold that the requisite intention or

knowledge which is the ingredient of Section 307 of IPC, is

established. I am inclined to give the benefit of the doubt to the

accused and to acquit the accused of offence punishable under

Section 307 of IPC. In so far as the offence punishable under the

Arms Act is concerned, the accused is entitled to be acquitted on

the short ground that the previous sanction under Section 39 of

the Act was admittedly not obtained.

12] The accused is however, liable to be convicted for

offence punishable under Section 336 of the Indian Penal Code.

13] In the result, I pass the following order:

The conviction of the accused under Section 307 of

IPC and under Section 25(1-B)(a) read with Section 3 of Arms

Act is set aside and instead the accused is convicted for offence

punishable under Section 336 of IPC.

The incident occurred in the year 2000.

The maximum punishment for offence punishable under Section

336 of IPC is three months. The accused has undergone 26 days of

detention. I do not deem it appropriate to send the accused back

to jail, at this stage. The accused is sentenced to suffer

imprisonment-detention already undergone.

  14]              The appeal is partly allowed.




                                                     JUDGE



NSN