HERAM SHIVHARE Vs. STATE OF M P

JUDGEMENT

(1.) THIS revision is for impugning the order dated 10th January, 2008 passed by the 6th Additional Sessions Judge, Gwalior in Sessions Trial No. 1/08, whereby the learned Judge has framed charge against the petitioner alongwith other co -accused persons for the offence punishable under section 304 read with section 34 of IPC.

(2.) IT is submitted by Shri Gupta, the learned counsel appearing on behalf of the petitioner, that for the present it is not disputed that one Harish Jain has died on account of gun shot injury sustained by him at the time of incident. It is also not disputed that the gun was owned by the petitioner, who was also present at the time of incident. As per the FIR, the brother of the deceased Tarun alleged that as per his information, the petitioner fired from the gun, but as per the FIR itself, it also appears that Tarun was not present at the time of incident. He has mentioned that he has come to know about this incident. After registration of the FIR during investigation the statements of Rajkumar Gupta, Manish Gupta, Shyam @ Shammi, Gaurav Parihar, Prakash Palve and Gagan Gupta have been recorded in the capacity of eye -witnesses. Some of them have stated ignorance as to who fired the gun and rest of them have stated that the gun was taken from the petitioner by Saurabh and at the time of firing of the gun without any object or intention, Shantanu also put his hand at the gun and by that fire, the deceased sustained injury and died. None of these witnesses have stated that the deceased has sustained gun shot injury by firing of the petitioner. At the most, charge for the offence punishable under section 30 of the Arms Act prima faciely appears to be made out against the petitioner. Hence, he deserves discharge from the aforementioned charge framed against him vide impugned order.

(3.) SECTION 304 of IPC provides punishment for culpable homicide not amounting to murder which has been defined under section 299 of IPC. As per this definition, whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Admittedly, the aforementioned eye -witnesses have stated that during one marriage celebration, petitioner was possessing a gun. When he was taking his food, this gun was taken by co -accused Saurabh. When Saurabh was to fire the gun for merrymaking, co - accused Shantanu also put his hand over the gun and by that firing, the deceased sustained injury and died. Not a single witness states that there was any intention, object or aim of these two co -accused persons to kill the deceased by firing the gun. Gun was also not fired by the petitioner. In view of this, prima faciely it cannot be accepted that the petitioner caused death by doing an act with the intention or knowledge as mentioned in the definition. It is rightly contended by Shri Gupta that handing over the gun in the loaded condition by the petitioner to the co -accused amounts committing an offence punishable under section 30 of the Arms Act and not an offence punishable under section 304 of IPC. Apparently, the impugned order framing of the aforementioned charge appears erroneous.