DIVAKAR MISHRA Vs. STATE OF M.P.

JUDGEMENT

(1.) THE appeal is directed against the conviction of the appellant u/s 307 and 323 I.P.C. whereunder he had been sentenced to R.I. for five years together with fine of Rs. 200/ - and for three months together with fine of Rs. 100/ - on respective counts in Sessions Trial No. 88/90 by Shri L.L. Shukla, First Addl. Sessions Judge Shahdol vide Judgment and order dated 9.8.91.

(2.) THAT the appellant is an Upper Division Clerk in the Forest Department and at the relevant time was posted in the North Forest Division Shahdol. An occurrence took place on 30.11.89 regarding which a report was lodged with the police at the police station Kotwali Shahdol at about 4 a.m. The occurrence is of 3 a.m. Prosecution case in brief is that on 30.11.89 at 3 a.m. the accused Divakar Mishra went to the house of Rameshwar Gupta and pressed the call bell whereat Rameshwar Gupta came out of his house and told "why are you disturbing me in the night, you may meet me in the morning." the accused was not satisfied with this reply and he started shouting whereat Shri Shailesh son of Rameshwar Gupta also came out and the accused grappled with Rameshwar Gupta and gave beating to him by Danda which he was having in his hand which hit him on the right side of his eye and bleeding started. Shailesh Kumar tried to pacify the accused but the accused also hit him with Danda which injured him on the left side of his neck. During this scuffle, the accused -appellant also received injuries. On hearing hue and cry, the neighbours gathered there and one of the neighbours was Avinash Mishra. They tried their best to pacify the matter and the major role was played by Avinash Mishra but the accused -appellant thought that Avinash Mishra got him beaten and therefore he became hostile to Avinash Mishra. In this process he went to his house and returned with 12 bore gun and went to the house of Avinash Mishra. At that time, all the neighbours including Rameshwar Gupta and his son were inside their respective houses. The accused -appellant fired through the window but it did not hit any body and did not injure any body in the house. It was pellet and not the bullet. Some of the pellets struck to the tubelight and the tubelight was broken and broken particles caused some injuries to the mother of Avinash Mishra. Thereafter, Avinash Mishra, at 4 a.m. went to the police station and lodged the report.

(3.) LEARNED counsel for the appellant read the evidence of PW 11 Avinash Mishra, PW 1 Rameshwar Gupta and P. W. 2 Shailesh Kumar. From the evidence the appellant cannot be held to be innocent. Though the circumstances are such which require some sympathetic consideration. Learned counsel for the appellant submitted that the circumstances of the case are such that the Court may consider for releasing the appellant on probation of good conduct for the reasons that the appellant is a Government servant and having his family to maintain and to meet the liability of the family members and also regarding the marriage of his daughters.