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CHHOT AHIRWAR V. STATE OF MADHYA PRADESH

 


The accused appellant was tried by the Sessions Court, on charges under Section 307/34 of the Indian Penal Code, for attempt, with common intent along with the main accused Khilai, to murder the complainant and for instigating the said accused Khilai to fire at the complainant with a country made pistol, in furtherance of a common intent to kill the complainant.

Fact

In a nutshell, the case of the Prosecution is that, on 22 nd October, 1992 at about 11.00 a.m., there was a quarrel between the accused appellant and the complainant, in which the said accused Khilai intervened. The said accused Khilai who had joined the accused appellant and the complainant, took out a country made pistol from the pocket of his trousers, pointed it towards the complainant and fired at the instigation of the accused appellant, who urged the said accused Khilai to kill the complainant. The complainant, therefore, sustained injuries on his forehead near his eye and on his lips and shoulder with splinters from the pistol and started bleeding. It is the further case of the Prosecution, that after the firing, the accused Khilai fled the scene of occurrence and the accused appellant followed him. Immediately thereafter, the complainant reported the incident at the Mohandra Chowki. The report was forwarded to the Simariya Police station where Crime No.110/1992 was registered. After investigation, Chargesheet was filed against the accused appellant and the main accused Khilai, both of whom pleaded ‘Not Guilty” and claimed to be tried. To establish the charges framed against the accused, the Prosecution examined 11 witnesses. The accused appellant did not examine any witness nor did the main accused, Khilai.

Judgment

By a judgment dated 26th August, 1994, the Additional Sessions Judge, Panna held the accused appellant guilty of offence under Section 307/34 of the Indian Penal Code and the main accused Khilai guilty of offence under Section 307 of the Indian Penal Code. By an order of sentence passed on the same day the accused appellant was sentenced to undergo rigorous imprisonment for five years in addition to fine of Rs.1000/-.

By aggrieved by the aforesaid judgment of conviction and order of sentence, the accused appellant appealed to the High Court. The said appeal being Criminal Appeal No. 1050 of 1994 has been dismissed by the judgment and order impugned in this appeal.

  • The question in this case is, whether the Prosecution has been able to establish a pre-arranged common intention between the accused appellant and the main accused Khilai to kill the complainant in pursuance of which the accused Khilai open fired from his pistol.
The answer to the aforesaid question has to be in the negative for the following reasons,

As per the Evidence of the Complainant, Who is an Injured witness,
• When the Complainant told the main accused Kilai not to intervene and go home , Kilai reacted by taking out the pistol from his right pant pocket  and pointing it at the complainant 
• The Pistol was taken out by the main accused and pointed at Kilai , without any Instigation from the appellant accused.
• Even, if accepted that the appellant accused instigate the accused Kilai and it is not a prearranged plan and it is the spur of the movement and it does not amount common intension  and this case shows the intention of the accused person, the Supreme court acquitted the appellant accused from the above said sentence.











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