Case: Gyanendra Kumar Vs. State of Uttar Pradesh

and the two empty cartridges were sent to the Scientific Section of the U.P. Government where Inspector Rameshwar Prasad Rastogi, PW 3 found, after firing two live cartridges from the gun that the two empty cartridges which had been sent to him must have been fired from this gun. Munshi Lal died of the gun-shot wound and on a post-mortem examination of his body it was found that he had a gun-shot injury which was chest cavity deep with margins blackened. A charge-sheet was filed against the appellant and his rescuers. The learned Sessions Judge acquitted the rescuers but convicted the appellant as aforesaid.6. The defence of the appellant was one of alibi. He said that he had gone away to Bareilly on the evening of August 29, 1964 and that he was not present at all at the time of the occurrence. He further stated that he had been falsely involved because his father and uncle were influential men and the prosecution witnesses were jealous of them.7. Both the Courts held that he prosecution case had been substantially proved. The eye-witnesses of the occurrence were Bankey Lal PW 9, Sita Ram, Pw 1, Chandra Shekhar, PW 6 and Krishan Gopal PW 7. Besides, there was the evidence of the two empty cartridges, which, in the opinion of the Export Inspector Rastogi, had been fired from the gun recovered from Mehtab Rai. There was also the piece of the shirt of the appellant. Objection was taken to the evidence of the eye-witnesses on the ground that they were associates of each other and partisan witnesses. After due consideration of this objection, both Courts held that the appellant had fired two shots from the gun at Bankey Lal. The first missed its aim and the second hit the unfortunate Munshi Lal when it was really intended for Bankey Lal. These are findings of fact and this Court would not normally interfere with the High Courts findings of fact. We may say at once that no good grounds are made before us for reviewing the findings.8. Mr. Kohli appearing for the appellant, however, submitted that on the basis of some of the findings of the High Court and the admitted circumstances of the case it was very probable that the deceased Munshi Lal might have been hit by a shot discharged accidentally in a scuffle. Admittedly Munshi Lal had rushed to the appellant to prevent him from firing the second shot. It is submitted that at this stage there might have been a scuffle between the two and in the scuffle the gun was accidentally discharged and Munshi Lal fell to the shot. In this connection Mr. Kohli particularly invited our attention to the following observations of the High Court."It is not very clear how Munshi Lal came in between the barred of the gun and Bankey Lal.In our opinion, there is not substance in this submission. The observations of the High court must be read in their context. The High Court does not say that there was any scuffle and the appellant. There is no evidence, to show that Munshi Lal trying to catch hold of the gun. The evidence, on the other hand, was that Munshi Lal was pushed aside, and, according to the High Court, it was quite likely that when he was pushed aside, he steadied himself and assumed a standing position just when the appellant fired a second time at Bankey Lal. The fact is that Munshi Lal received the wound in the chest, though from a very short range, which only goes to show that the appellant was firing at chest height. Moreover, there is absolutely no basis made in the evidence to show that here was a scuffle. The case of the appellant was that he was not present at the time of the occurrence. No suggestion also about the alleged scuffle or the gun accidentally discharging itself was made when the eye-witnesses were cross-examined. The point was not even raised before the learned Sessions Judge. A feeble attempt, however, seems to have been made before the High Court but the submission was rejected by the High Court, and in our opinion, rightly.9. It was next contended that the offence, if any, was one under Section 304, Part-I and not under Section 302 read with Section 302, IPC. It was argued that the appellant was of an irritable temperament and that he must have fired the shots under grave and sudden provocation. It may be that the appellant had an irritable temper but there was no question of any grave provocation much less a sudden provocation. After all, during the course of the meeting, all that Bankey Lal had said was that Mehtab Rai and Raja Ram were monopolising all seats of authority and they were dishonest. The appellant being a near relation may certainly resent such derogatory words addressed to his father and uncle. But they can hardly be said to be grave provocation having regard to the station in life Mehtab Rai and Raja Ram occupied, on the one hand, and Bankey Lal, on the other. It is true that what is grave provocation in one set of society may not be grave provocation in another. But the words uttered by Bankey Lal to the effect that they were dishonest cannot be regarded as grave provocation under the circumstances. In any case the provocation was far from being sudden. The appellant goes to his house which is about a furlong away and fetches the gun. There was sufficient time for him to cool down. His action was deliberate. He asked those who were near Bankey Lal to move away because he wanted to shoot Bankey Lal. One shot missed its aim. Munshi Lal came up to prevent him from firing another shot. The appellant pushed him and then fired the second shot. All this cannot be attributed to any grave and sudden provocation. The offence, therefore, is not under Section 304, Part I.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In our opinion, there is not substance in this submission. The observations of the High court must be read in their context. The High Court does not say that there was any scuffle and the appellant. There is no evidence, to show that Munshi Lal trying to catch hold of the gun. The evidence, on the other hand, was that Munshi Lal was pushed aside, and, according to the High Court, it was quite likely that when he was pushed aside, he steadied himself and assumed a standing position just when the appellant fired a second time at Bankey Lal. The fact is that Munshi Lal received the wound in the chest, though from a very short range, which only goes to show that the appellant was firing at chest height. Moreover, there is absolutely no basis made in the evidence to show that here was a scuffle. The case of the appellant was that he was not present at the time of the occurrence. No suggestion also about the alleged scuffle or the gun accidentally discharging itself was made when thed. The point was not even raised before the learned Sessions Judge. A feeble attempt, however, seems to have been made before the High Court but the submission was rejected by the High Court, and in our opinion, rightly.9. It was next contended that the offence, if any, was one under Section 304,and not under Section 302 read with Section 302, IPC. It was argued that the appellant was of an irritable temperament and that he must have fired the shots under grave and sudden provocation. It may be that the appellant had an irritable temper but there was no question of any grave provocation much less a sudden provocation. After all, during the course of the meeting, all that Bankey Lal had said was that Mehtab Rai and Raja Ram were monopolising all seats of authority and they were dishonest. The appellant being a near relation may certainly resent such derogatory words addressed to his father and uncle. But they can hardly be said to be grave provocation having regard to the station in life Mehtab Rai and Raja Ram occupied, on the one hand, and Bankey Lal, on the other. It is true that what is grave provocation in one set of society may not be grave provocation in another. But the words uttered by Bankey Lal to the effect that they were dishonest cannot be regarded as grave provocation under the circumstances. In any case the provocation was far from being sudden. The appellant goes to his house which is about a furlong away and fetches the gun. There was sufficient time for him to cool down. His action was deliberate. He asked those who were near Bankey Lal to move away because he wanted to shoot Bankey Lal. One shot missed its aim. Munshi Lal came up to prevent him from firing another shot. The appellant pushed him and then fired the second shot. All this cannot be attributed to any grave and sudden provocation. The offence, therefore, is not under Section 304, Part I.