- (1.) K. N. Ojha, J. Instant revision has been preferred against the order dated 8-8-1985 passed by learned 7th Additional Sessions Judge, Bareilly, in Criminal Appeal No. 214 of 1984, Nathu Singh v. State of U. P. , by which the appeal has been dismissed and the order of conviction under Section 304-A of I. P. C. has been upheld and the sentences of six months' R. I. and also a fine of Rs. 2,500/- under Section 304-A I. P. C has been maintained. It further directed that in default of payment of fine the accused - revisionist had further to undergo two months' R. I. The appeal was preferred against the order dated 6-8-1984 passed by the 1st Additional Munsif Magistrate, Bareilly, in Criminal Case No. 446 of 1982, State v. Natthu Singh, Police Station Fatehganj Purvi, District, Bareilly.
(2.) HEARD Sri Apul Mishra, learned Counsel for the revisionist and Sri R. R. K Mishra, learned AGA and have gone through the record. The fact of the case is that on 12-11-1979 at about 2 p. m. in village Nagriya Kalan, police station Fatehganj East, District Bareilly,the complainant Gendan Singh alongwith his son Chhabinath were working in their field. They went to the engine of Naresh Pal for drinking water where the accused Natthu Singh was present with licensed gun of his father. He had gone there to shot birds. He was opening and closing his gun again and again. Due to his negligence and carelessness in handling the gun a shot was fired, which hit in the stomach of Chhavinath, who died on the spot. The revisionist accused run away from the place. Gendan Lal, father of the deceased , lodged FIR on the same day against the revisionist. Investigation was done. Post-mortem report was prepared by Dr. K. P. Singh of District Hospital, Bareilly, who opined that the death had taken place due to gun shot injury. After the charge sheet was submitted the case proceeded. The accused denied his participation in the crime and it was alleged that due to enmity with Gendan Lal in respect of his landed property the accused revisionist was falsely involved in the crime.
(3.) THE prosecution examined PW 1 Gendan Lal, PW 2 Naresh Pal, PW 3 Rampal, PW 4 Ramdhan, PW 5 Gangaram, PW 6 Baijnath and PW 7 SI Bhagwan Singh. THE learned Counsel for the defendant admitted genuineness of the post-mortem report. PW 2 Naresh Pal and PW 3 Rampal eyewitnesses were declared hostile as they did not support the prosecution story, but PW 1 Gendan Lal fully corroborated the prosecution story. His statement was believed and impugned order of conviction and sentence was passed and a concurrent finding of fact was given by both, the courts below. It was held that it was broad daylight occurrence and it cannot be believed that the real culprit has been spared and the revisionist has been falsely involve in the crime. it was further held that enmity about the land between the parties was not proved by the accused. It was also held that if the intention of the father of the deceased would have been to falsely involve the revisionist, he would have lodged FIR of murder being committed rather than showing that it was mere negligence on the part of the revisionist. THE possibility of the FIR being lodged in consultation with Police Sub-Inspector of Police Station was also not believed and it was held that if a person of the village had gone to lodge the FIR and if in cross-examination he had started something that the police had asked as to what were true facts it does not mean that the revisionist was falsely involved by lodging FIR in consultation with the Police Sub-Inspector. A perusal of judgments of both the courts below show that the statement of PW 1 Gendan Lal, father of the deceased, was appreciated, which was corroborated partly by one of the fact witness in respect of the injury being caused by guns and the dead body of Chhabinath being on the spot. If a plea is taken by defence then he has to prove it. If it is said that there was litigation between the parties about the landed property, the accused had to file papers in support of this contention no such papers were filed therefore, both the courts below were right in holding that enmity was not proved. THE gun was recovered from the possession of the revisionist. It is not a case of mere negligence but it is a case of callous negligence due to which death of a young person took place. THE revisionist is not a licence holder of the gun. It was his father, who was licence holder. Prey of bird was to be made in some garden or jungle rather than on a tube-well where persons were busy on their wok. Persons of the village come there to drink water and some persons of the village are busy in the field where there are chances of such injuries being caused in case fire is missed. In such circumstances the plea of the revisionist that he should be relieved because he remained for some days in a jail or he be enlarged on probation of good conduct is not maintainable. A young boy was killed due to negligence of the revisionist. When the case proceeded the revisionist contested the case. He took the plea that he was falsely involved in the case and when it is proved that the defenc is not maintainable, affidavit has been filed by the revisionist that a long period has passed away and the revisionist had no intention to cause death. Since the revisionist had no intention to cause death this is the reason that he is punished only under Section 304-A of I. P. C. In such circumstances to reduce the sentence would not be proper specially in the circumstances when a young person has been killed due to negligence of the revisionist. No jurisdictional error, illegality or material irregularity is found in the impugned judgments delivered by both the courts below. Therefore, the revision fails.;