STATE OF MADHYA PRADESHversusGANGABISHAN @ VISHNU & ORS.

                         [2018] 9 S.C.R. 349                              349


                 STATE OF MADHYA PRADESH                                  A
                                  v.
               GANGABISHAN @ VISHNU & ORS.
                 (Criminal Appeal No. 2393 of 2009)
                           JULY 27, 2018                                  B
[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]
      Penal Code, 1860:
      ss. 302/149, 325/149, 147, 148, 440 and 304 (Part I) –
Prosecution of nine accused u/ss. 302/149, 325/149, 147, 148 and          C
440 – Injured eye-witness to the incident – Dying declaration
recorded – Conviction by Trial court – High Court acquitted all the
accused except accused No.1 – Conviction of accused No.1 was
altered to one u/s.304 (Part I) – Appeal by State challenging acquittal
order – Held: Statement of the eye-witness as well as dying
                                                                          D
declaration of deceased not corroborated by medical evidence – In
the facts of the case liability cannot be fastened on the respondent-
accused (accused Nos. 2 to 9) – In view of medical evidence it is
evident that accused No.1 was not having intention to commit murder,
but his act was to cause bodily injury which was likely to cause
death – Therefore, conviction of accused No.1 u/s. 304 (Part I) and       E
acquittal of rest of the accused by High Court was justified.
      Dismissing the appeal, the Court
      HELD: 1. The general statement by PW-1 regarding
participation of all the accused with different weapons and causing
injury to the deceased as well as to himself is not duly corroborated     F
by medical evidence of PW-8 and autopsy surgeon PW-7. The
version of PW-1 is belied by medical evidence. In the dying
declaration the deceased has deposed that except accused No.1,
he was not knowing as to who had assaulted him but in the same
breath he has stated that he was assaulted by lathi by accused            G
No.3 and accused No.2. However, his version is not corroborated
by medical evidence. [Para 7] [353-E-G]
     2. The dispute between the parties arose on account of
entrance of cattle and causing damage to the crops, as well as
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350            SUPREME COURT REPORTS                      [2018] 9 S.C.R.


A     use of way in which deceased and PW-1 sustained injuries. Taking
      overall view of the matter, the High Court has acquitted accused
      Nos.2 to 9. Insofar as accused No.1 is concerned, his overt act is
      fully corroborated by the medical evidence, as well as the dying
      declaration (Ex.P/4). Though, PW-1 sustained injuries caused
      by hard and blunt object but according to his version, he was
B
      assaulted by all the appellants, whereas he sustained only four
      injuries and no injury was sustained by him by fire arm or sharp
      edged weapon. Therefore, it would be difficult to fix the liability
      for causing injuries to this witness by the respondents.
      [Para 8] [353-G-H; 354-A-B]
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            3. Insofar as the deceased is concerned, he suffered gunshot
      injury and entry wound was on back of his left thigh. In view of
      the medical evidence, it would be easy to infer that if accused
      No.1 was having intention to commit murder of the deceased and
      used fire arm for that purpose, the injury could have been caused
D     on upper limb, above waist of the deceased. Thus, though the
      accused No.1 was not having intention to commit murder of the
      deceased but the act was to cause bodily injury which was likely
      to cause death. Therefore, the High Court found that he would
      be responsible for commission of culpable homicide not
E     amounting to murder punishable under Section 304 (Part I) of
      IPC. The High Court after scanning the entire evidence also
      held that the respondents were not having an intention to commit
      murder of the deceased. There is no infirmity in the judgment of
      the High Court. [Para 9] [354-C-F]

F           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 2393 of 2009.

            From the Judgment and Order dated 06.12.2006 of the High Court
      of Madhya Pradesh, Bench at Indore in Criminal Appeal No. 1370 of
      2001.
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            Ms. Swarupama Chaturvedi, Niraj Sharma, Ms. Priya Hingorani,
      Chandra Bhushan Prasad, Kuldeep S. Parihar, H. S. Parihar, Advs. for
      the appearing parties.


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       STATE OF MADHYA PRADESH v. GANGABISHAN                                 351
                   @ VISHNU & ORS.

      The Judgment of the Court was delivered by                              A
       S. ABDUL NAZEER, J. 1. This appeal by special leave is
preferred against the judgment dated 06.12.2006 passed by the High
Court of Madhya Pradesh at Indore in Criminal Appeal No. 1370 of
2001 arising out of Sessions Trial No. 197 of 2000 passed by the Additional
Sessions Judge, Shajapur, Madhya Pradesh, dated 4th December, 2001,           B
wherein the High Court has set aside the judgment and order of conviction
of the respondents under Sections 302/149 and 325/129 IPC against all
the respondents except respondent No.1. The respondent No.1 has been
held guilty under Section 304 (Part-I) IPC and sentenced to undergo ten
years R.I. and fine of Rs.25,000/- and in default to undergo three years
further R.I.                                                                  C

       2. Briefly stated the prosecution case is that Dinesh (PW-1) and
his brother Rajesh (deceased) were in their field situated in the forest,
for the purpose of watching the crops. At that juncture, the accused
persons reached over there having lathis and swords in their possession
except accused No.1 Gangabishan alias Vishnu, who was having 12               D
bore gun and started assaulting Rajesh with their respective weapons.
Accused No.1 caused gunshot injury on the left thigh of the deceased
by 12 bore gun because of which he fell down on the ground. Dinesh
raised cry. However, no one came to their rescue. Somehow he managed
to run away from the scene of occurrence and disclosed about the incident     E
to Sidhnath, Ramsingh, Gopal Khati and Laxminarayan Khati. They all
brought the deceased Rajesh on a cot from the field and thereafter took
him in a mini truck. The deceased Rajesh became unconscious. The
accused persons were also causing damage to the standing crops of
PW-1 by grazing their cattle and the incident occurred because of the
objection being raised by PW-1 in the morning of the same day.                F

       3. The police after registration of the crime and recording of the
FIR (Ex. P/1) prepared the inquest. Post mortem examination of the
deceased was conducted by Dr. Kapil Sahay (PW-7). The post mortem
report is Ex. P/10. Dr. Vijaysingh, PW-8 initially examined the deceased
Rajesh, the same day and also PW-1. Their MLC reports are Exhibits            G
P/11 and P/12 respectively. Dying declaration (Ex. P/4) of the deceased
was also recorded by Tehsildar Shri Purshottam Sharma (PW-2). After
investigation, accused were charge sheeted for the commission of

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352             SUPREME COURT REPORTS                           [2018] 9 S.C.R.


A     offences under Sections 302/149, 325/149, 147, 148 and 440 of the IPC.
      Accused No.1 was also charge sheeted under Section 30 of the Arms
      Act.
             4. The trial court after undertaking a full-fledged trial found the
      accused guilty under Sections 302/149 of IPC and sentenced them to
B     undergo life imprisonment and Rs.20,000/- fine and on default additional
      three years of R.I., two years of imprisonment under Section 325/149 of
      IPC and fine of Rs.2000/- and on default one year additional R.I, three
      years of R.I under Section 440 of IPC and fine of Rs.5000/- and on
      default six months additional R.I and except accused No.1, rest of the
      accused were sentenced to one year of R.I under Section 147 IPC and
C     fine of Rs.500/- and on default two months of additional R.I. Accused
      No. 1 was further convicted under Section 148 IPC and Section 30 of
      the Arms Act and was sentenced to suffer two years of R.I and fine of
      Rs.1000/- and on default four months of additional R.I. and four months
      of R.I and a fine of Rs.1000/- and on default four months of additional
D     R.I respectively.
             5. Feeling aggrieved, the accused approached the High Court by
      filing an appeal. By the impugned judgment herein, the High Court set
      aside the judgment and order of conviction of accused Nos.2 to 9
      (respondent Nos.2 to 9). However, respondent No.1 has been held
E     guilty under Section 304 (Part I) IPC and sentenced to undergo ten
      years R.I and fine of Rs.20,000/- and in default to undergo three years
      R.I in addition.
             6. We have heard learned counsel for the parties. Learned counsel
      for the appellant submits that the High Court has failed to appreciate the
F     findings of the trial court that the respondents who were nine in number
      and were armed with sharp edged weapons, lathis and one of them had
      a 12 bore gun had come to the spot of the incident with premeditation
      and common intention to assault and kill the complainant and his brother
      and in this transaction of violence the brother of complainant succumbed
      to gunshot injury inflicted by accused No.1. Therefore, the court below
G     was not justified in setting aside the sentence and conviction of respondent
      Nos. 2 to 9. It is further submitted that the High Court was also not
      justified in setting aside the conviction and sentence of the respondent
      No.1 under Section 302 IPC and imposing lesser punishment of ten years
      of R.I under Section 304 (Part I) IPC. On the other hand, learned
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       STATE OF MADHYA PRADESH v. GANGABISHAN                                353
          @ VISHNU & ORS. [S. ABDUL NAZEER, J.]

advocate appearing for the respondents has sought to justify the impugned    A
judgment of the High Court.
       7. We have carefully considered the submissions of the learned
counsel appearing for the appellant-State and the learned advocate
appearing for the respondents. It is clear from the evidence on record
that the deceased Rajesh suffered only one injury on interior aspect of      B
thigh, which was an exit wound. Injury No. 2 was a gunshot entry
wound on the back side of left thigh. There was haematoma and fracture
of thigh bone. Dr. Vijaysingh (PW-8) examined the deceased and issued
MLC report (Ex. P/11). He also examined PW-1 Dinesh, brother of the
deceased and found three contusions and one lacerated wound. In the
opinion of the doctor all the injuries were simple in nature except injury   C
No.1 on the left forearm. PW-1, Dinesh is an eye-witness. PW-2
recorded the dying declaration of the deceased Rajesh (Ex. P/4). It is
evident from the statement of PW-1, that he has given a general and
omnibus statement about the assault upon the deceased and himself by
the accused. Accused No.1 was having a twelve bore gun and the               D
other accused were armed with lathis. However, the doctor’s report
shows that deceased had sustained only one injury on the left thigh caused
by accused No.1. Neither the deceased nor PW-1 had any injury caused
by sharp edged weapon. PW-1 suffered fracture of left ulna bone and
three simple injuries caused by hard and blunt object but he has not
pointed out as to which accused did cause injuries to him. His general       E
statement regarding participation of all the accused with different
weapons and causing injury to the deceased as well as to himself is not
duly corroborated by medical evidence of PW-8 and autopsy surgeon
PW-7, Dr. Kapil Sahay. The version of PW-1 is belied by medical
evidence. In the dying declaration the deceased has deposed that except      F
Vishnu Prasad (accused No.1) he was not knowing as to who had
assaulted him but in the same breath he has stated that he was assaulted
by lathi by Chaturbhuj (accused No.3) and Laxmichand (accused No.2).
However, his version is not corroborated by medical evidence as he did
not suffer even a single scratch on his body except fire arm injury.
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       8. It is necessary to notice here that the dispute between the
parties arose on account of entrance of cattle and causing damage to
the crops, as well as use of way in which deceased and PW-1 sustained
injuries. Taking overall view of the matter, the High Court has acquitted

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354             SUPREME COURT REPORTS                             [2018] 9 S.C.R.


A     accused Nos.2 to 9. Insofar as accused No.1 is concerned, his overt act
      is fully corroborated by the medical evidence, as well as the dying
      declaration (Ex.P/4). Though, PW-1 sustained injuries caused by hard
      and blunt object but according to his version, he was assaulted by all the
      appellants, whereas he sustained only four injuries and no injury was
      sustained by him by fire arm or sharp edged weapon. Therefore, it
B
      would be difficult to fix the liability for causing injuries to this witness by
      the respondents.
             9. Insofar as the deceased Rajesh is concerned, he suffered
      gunshot injury and entry wound was on back of his left thigh. This
      shows that the shot was fired from his back side. There was no blackening,
C     charring on exit wound. Blackening and charring were present on entry
      wound which shows that the gunshot was fired within the range of 6 to
      8 feet. In view of the medical evidence, it would be easy to infer that if
      accused No.1 was having intention to commit murder of the deceased
      and used fire arm for that purpose, the injury could have been caused on
D     upper limb, above waist of the deceased but the part chosen for causing
      injury was the back portion of left thigh. Thus, though the accused No.1
      was not having intention to commit murder of the deceased but the act
      was to cause bodily injury which was likely to cause death. Therefore,
      the High Court found that he would be responsible for commission of
      culpable homicide not amounting to murder punishable under Section
E     304 (Part I) of IPC. The High Court after scanning the entire evidence
      also held that the respondents were not having an intention to commit
      murder of the deceased Rajesh. We do not find any infirmity in the
      judgment of the High Court.
             10. Accordingly, the appeal is dismissed.
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      Kalpana K. Tripathy                                            Appeal dismissed.




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