1. Heard learned counsel for appellant and learned Additional Government Advocate for the State and perused the record.
2. Challenge in this appeal is to the judgment dated 30.06.2011, passed by the Additional District and Sessions Judge, Court No.5, Rae Bareli, passed in Sessions Trial No.,135 of 1998, arising out of Case Crime No.200 of 1997, under Sections 302,307 I.P.C. relating to Police Station Lalganj, District Rae Bareli, whereby the appellants Devesh Kumar @ Neeraj Dixit and Baijnath Singh have been convicted under Section 302/34 I.P.C. and under Section 307/34 I.P.C. and sentenced under Section 302/34 I.P.C. for life imprisonment and fine of Rs.10,000/- and under Section 307/34 I.P.C. for rigorous imprisonment for 10 years and fine of Rs.2,000 with default clauses.
3. The prosecution story as emerges from the record of the the learned trial court is that a written report was filed by informant Ram Shanker on 17.9.1997 at Police Station Lalganj, District Rae Bareli at about 10.45 a.m. stating therein that at about 10.00 a.m., his uncle Lallu Yadav, Ramesh Pratap and Dinesh Pratap were supervising construction of foundation of some building on a land purchased by them from one Suresh Singh of Pandepur. At that time appellants Neeraj Dixit and Baijnath Singh arrived on the spot and took him and his uncle Lallu towards the shop of one Ram Bahadur. Appellant Baijnath Singh enquired as to why the bricks have been stacked on the land and also that they cannot construct a house on that land. It was further stated that his uncle Lallu Yadav informed them that the land on which foundation was being laid, has been purchased by them, on which on the instigation of Baijnath Singh, appellant Neeraj Dixit took out a country made pistol and fired at the informant hitting him in his abdomen. He fired a second shot at his uncle Lallu Yadav, who after being hit died on the spot and his dead body was lying there.
4. On the basis of afore mentioned information, an F.I.R. (Ext.Ka-15) was registered at Police Station Lalganj, District Rae Bareli at Case Crime No.200 of 1997, under Sections 302,307 I.P.C. and investigation of the same was entrusted to Station House Officer Sri S.N.Rai.
5. The informant, who was badly injured, was medically examined at P.H.C. Lalganj on the same day i.e. 17.9.1997, at 11.25 a.m. and following injury was found on his person :
Fire arm wound measuring 5 cm x 2 cm, depth could not be measured, margins inverted , blackening and tattooing present around the wound and tattooing present in an area of 15 cm x 10 cm on the lateral aspect of left side of abdomen. Fresh blood was also found present with smell of gun powder. However no wound of exit was present and the patient was kept under observation.
It is also mentioned in the injury report that the general condition of the patient was not satisfactory and his pulse rate was 100 per minute and the blood pressure was 100/70 mg. As per the opinion of the doctor, injury was fresh and was caused by some fire arm. Patient was kept under observation and was advised X-ray of the abdomen.
6. The Investigating Officer arrived at the spot and got the inquest report (Ext.Ka-7) and other necessary papers prepared for the purpose of post mortem through Sub Inspector Sohan Lal Shukla and sent the dead body for post mortem. He also inspected the spot and collected the empty cartridge and bullet from the spot and also prepared a memo of the same (Ext.Ka-5). He also collected sample of blood stained soil from the spot and prepared a memo of the same (Ext.Ka-6).
7. Post mortem, on the dead body of deceased Lallu Yadav was conducted on 18.09.1997 at about 11.00 a.m. by Dr. L.C.Srivastava at District Hospital, Rae Bareli.The body of the deceased was found about one day old and of average built. Rigor mortis was present from upper to lower extremities. Following ante mortem injuries were found on the person of the deceased :
(i) Gun shot wound of entry measuring 1 cm x 1 cm on back of left side of chest which was cavity deep, 2 cm to the left of mid line near the lower border of scapula. Margins of wound were irregular, lacerated, inverted with scorching and its edges were contused.
(ii) Exit wound measuring 2 cm x 1.5 cm in front of chest, 8 cm from left nipple in 7 O' Clock position, margins were averted and lacerated.
8. On internal examination, pleura, cartilages trachea was found lacerated on left side. Lacerated chest cavity was containing about 900 ml of blood, heart was empty, stomach was also found empty, small intestine was containing gases and the faecal matter was found in large intestine. No abnormal defect was found in other internal organs. According to the doctor the death of the deceased had occurred due to shock and hemorrhage as a result of ante mortem injuries.
9. The appellants were arrested on 22.09.1997 and they are stated to have confessed their guilt. They further stated that fire arm from which the offence was committed has been thrown by appellant Devesh Kumar @ Neeraj Dixit in the river. Both the appellants were taken to the place where they stated to have thrown the weapon, however despite best efforts no recovery of weapon could be made and investigating officer after finding sufficient evidence/material submitted the charge sheet against appellants under Sections 302/307 I.P.C. (Ext.Ka-14).
10. The case was committed to the court of Sessions and charges under Sections 302/34 and 307/34 were framed against both appellants. They, however denied the charges and claimed trial.
The prosecution in order to secure conviction of appellant Devesh Kumar @ Neeraj Dixit and co convict Baijnath had relied on following Documentary evidence;
(I) F.I.R. (Ext. Ka-1) (II) Chick F.I.R. (Ext. Ka-15) (III) Injury Report of Ram Shankar (Ext. Ka-2) (IV) Post Mortem Report (Ext. Ka-3) (V) Site Plan (Ext. Ka-4) (VI) Siezure Memo of Bullet and Cartridge (Ext. Ka-5) (VII) Inquest Report (Ext. Ka-7) (VIII) Form No. 13(Ext. Ka-8) (IX) Photo Lash (Ext. Ka-9) (X) Letter to CMO (Ext. Ka-10) (XI)Sample Seal(Ext. Ka-11) (XII) Letter R.I. (Ext. Ka-12) (XIII) Memo of Search (Ext. Ka-13) (XIV) Charge Sheet (Ext. Ka-14) (XV) G.D. Qayami (Ext. Ka-16) In addition to the above documentary evidence, the prosecution also presented following witnesses in order to prove its case :
(i) P.W.1 - Ram Shanker (injured/informant)
(ii) P.W.2 - Dinesh Pratap (eye witness)
(iii) P.W.3 - Dr. A.K.Dubey (who examined the injuries of the informant)
(iv) P.W.4 - Dr. S.C.Srivastava (who performed Post Mortem)
(v) P.W.5 - Sri Shambhu Narain Rai, Investigating Officer.
11. Apart from the above prosecution witnesses, the trial court also summoned and recorded the statement of witness Ram Bahadur, son of Lallu as C.W.1 and Ramesh Pratap son of Ram Pal Yadav as C.W.2.
12. After completion of evidence of prosecution and recording the statement of above mentioned court witnesses, statement of appellants was recorded, under Section 313 C.P.C., wherein appellant Neeraj Dixit @ Devesh Kumar denied to have committed the offence and claimed that he had been falsely implicated and that the injury report and post mortem report had been prepared in collusion with the doctor and the prosecution witnesses have deposed against him due to enmity at the instance of local M.L.A.s, namely, Surendra Bahadur Singh and Ashok Singh.
13. Learned trial court on appreciating the evidence available on record came to the conclusion that the prosecution has been able to prove its case beyond reasonable doubt and, therefore, convicted the appellant and co convict Baijnath for committing the offence under Sections 302/34 I.P.C. and 307/34 I.P.C. and sentenced them in the manner stated herein before in the second paragraph of this judgment.
Aggrieved by the judgment and order of the trial court, instant appeal has been filed.
14. The appellant Baij Nath has died during the pendency of appeal and the appeal to his extent was abated vide order dated 02.11.2020 Therefore instant appeal is surviving only in respect of appellant Devesh Kumar @ Neeraj Dixit.
15. Learned counsel for appellant-Devesh Kumar @ Neeraj Dixit while referring to the judgment of the trial court submits that the trial Court in order to convict the appellant has relied on the evidence of P.W.1, Ram Shanker, who is stated to have been injured in the same incident and thereby has completely ignored the fact that the testimony of this witness could not be believed due to inherent weaknesses and contradictions in his evidence and it is evident from the evidence of this witness that the incident had not happened in the manner deposed by him, casting a cloud of suspicion on his entire evidence. It has also been submitted that there are inherent contradictions in the testimony of P.W.1, Ram Shanker and P.W.2, Dinesh Prasad and the evidence of these two witnesses could also not be believed and the trial court has committed manifest illegality in relying on the testimony of these witnesses as well as on the testimony of court witnesses as it was hard to believe that they were present on the spot.
It has also been argued that the F.I.R. of the crime was lodged ante dated and by no stretch of imagination could it be believed to have been lodged by injured P.W.1, Ram Shanker, who according to his own statement was badly injured and was not even in a position to walk.
Learned counsel for the appellant also submits that P.W.-1/Ram Shanker, in any case, could not be termed as an injured witness as he has stated to have been admitted and got treatment in some hospital, however, nothing has been brought on record which may suggest that he had ever been admitted and treated in any hospital, therefore, his testimony could not be believed.
Further submission on behalf of the appellant is that the injury allegedly received by injured Ram Shanker could never be caused by the weapon which was alleged to have been fired by the appellant and, therefore, there is material contradiction in the ocular and medical evidence of the prosecution. Also no bullet or metallic part or any other substance has been found within the stomach of the injured and, therefore, it clearly suggests that the injury has been manufactured just to depict P.W.-1/Ram Shanker as an injured witness, as no exit wound has been found on his person.
It has also been submitted that investigation in this is tainted and even if the whole case of the prosecution is taken on its face value, the case of the prosecution could not travel beyond the scope of Section 304 I.P.C., as there was no intention to kill or murder the deceased and admittedly the incident was the result of sudden quarrel, sudden fight and amidst high-tension and that the appellant had not acted in a cruel manner. There are big holes in the story of the prosecution, benefit of which should have been accorded by the trial Court to the appellant and, therefore, the judgment and order of the trial Court is liable to be set-aside and appellant is liable to be acquitted or at the most be convicted under Section 304 (II) I.P.C.
16. Learned counsel for appellant has relied on following case laws in support of his submissions :
(i) AIR 1958 Allahabad 255 Tahsildar Singh v. State
(ii) (2002) 1 Supreme Court Cases 487 Thanedar Singh v. State of M.P.
(iii) (2001) 9 Supreme Court Cases 704 Jang Singh and others v. State of Rajasthan
17. Learned A.G.A. on the other hand submits that the trial Court has not committed any illegality so far as the conviction of the appellant under relevant sections of the Indian Penal Code is concerned. P.W.-1/Ram Shanker is an injured eye witness of the incident and having regard to the settled law, the testimony of the injured witness is to be treated at a higher pedestal than that of any other witness.
He further submits that even if the investigation is tainted, no benefit of the same could be claimed by the accused and also that there is no contradiction in the ocular and medical evidence of the prosecution nor the F.I.R. is ante-timed.
It is also submitted that the argument with regard to the offence falling under Section 304 (II) I.P.C. is also of no substance, as the appellant had fired two gun shots injuring P.W.-1/Ram Shanker and resulting in the death of deceased Lallu Yadav and, therefore, the trial court has not committed any error in convicting the appellant for the offence under Section 307 and 302 I.P.C. and, therefore, the appeal of appellant is liable to be dismissed.
18. In the wake of the submissions of learned counsel for the parties, a brief survey of the prosecution evidence and the evidence, which has been brought by the two Court witnesses summoned by the court would reveal that P.W.1/Ram Shanker has claimed himself to be an injured witness of the incident and has stated that at the time of the incident he was supervising the work of digging of foundation and at that time (at about 9:30-10:00 am.) appellant and co-convict Baijnath arrived on the spot and took him in front of the shop of one Ram Bahadur. Some other persons were also present there, who had also accompanied Ram Shanker. There was some verbal altercation and heated exchanges between them and Neeraj Dixit took out a country-made pistol and fired at him and also on his uncle Lallu. He got a fire arm injury in his stomach, while his uncle (Lallu Yadav) was hit on his back and he (Lallu Yadav) succumbed to his injuries at the spot.
P.W.-2 Dinesh Pratap has claimed himself to be present at the spot at the time of incident and has stated that when the foundation was being dug for the construction of the house, appellant and co-convict Baijnath Singh came there and took his uncle (Lallu) and cousin P.W.-1 Ram Shanker to the shop of one Ram Bahadur for the purpose deliberations. They also asked them to refrain from raising construction at the disputed land, to which his uncle (Lallu) replied that he will make construction there and on this, on the exhortation given by co-convict deceased Baijnath, instant appellant fired at Ram Shanker hitting him in his stomach and also towards Lallu on his back, resulting in the severe injury to the Ram Shanker and death of his uncle (Lallu).
Apart from the above prosecution witnesses two court witnesses C.W.-1/Ram Bahadur and C.W.-2/Ramesh Pratap were examined by prosecution before the trial court. C.W.-1/Ram Bahadur, though is not an eye witness of the incident, has stated that at the relevant time he was going to the place called "Do Sarka" and around 10:15 am. he saw that the shop owners were closing their shops and there was stampede and his cousin Ram Shanker was going on a ''rickshaw' in an injured condition. He( Ram Shanker) was accompanied by Ramesh Pratap and Dinesh Pratap. Ram Shanker narrated him the whole incident and he, thereafter, went to the spot where he found his father lying dead.
C.W.-2/Ramesh Pratap in his statement has stated that at the time of incident he, his brother Dinesh Pratap and cousin Ram Shanker and uncle Lallu Yadav were present at the place where the foundation was being dug and at the same time appellant and co-convict Baij Nath arrived and objected to the ongoing construction on which his uncle and PW-1,Ram Shanker replied that they are raising construction on their own land which has been purchased by them. Thereafter, they went to the shop of Ram Bahadur to have some discussion. He and Dinesh remained stood at about 10 feet from them, there were hot verbal exchanges between them and on the instigation of Baijnath, instant appellant (Neeraj Dixit)fired gun shots injuring Ram Shanker and resulting in the death of Lallu Yadav. He also stated that they escorted Ram Shanker and boarded a ''rickshaw' on their way to police station and they also met C.W.-1 Ram Bahadur in between.
P.W.-3/A.K. Dubey and P.W.-4/Dr. S.C. Srivastava are the doctors, who have examined the injured Ram Shanker and have performed the postmortem on the dead body of Lallu Yadav respectively. Both these witnesses have proved the injury report and postmortem report. P.W.-3/A.K. Dubey has stated that on 17.09.1997 at about 11:25 am. he had examined Ram Shanker and found one fire arm injury (which has been elaborately stated herein before at appropriate place in this judgment). In cross-examination, he has stated that he did not find any flame and scorching around the injury and the injury might have been inflicted from a gun shot made from a distance of 10 feet. Likewise, P.W.-4/Dr. S.C. Srivastava has stated to have performed postmortem on the dead body of deceased Lallu Yadav on 18.09.1997 at 11:00 am. and that he found one entry wound on the back of chest and an exit wound on front of chest. According to him, the gun shot has been fired from a short distance.
P.W.-5/Shambu Narain Rai is the Investigating Officer of the case, who has stated to have visited the spot soon after the incident and to have prepared the Site Plan and collected empty cartridge and bullet from the spot and also to have collected plain and blood stained soil from the spot. According to him, before his inspection of the spot, the inquest of the deceased had been performed by Sub Inspector Sohan Lal Shukla under his directions. After recording the statement of the witnesses, he arrested the appellant and co-convict Baijnath on 22.09.1997. Appellant Devesh Kumar @ Neeraj Dixit is stated to have confessed his guilt and informed them that he may cause recovery of the country-made pistol used in the commission of offence, which he had thrown in the river. However, despite best efforts firearm weapon could not be recovered. He, after finding sufficient evidence submitted the Charge-sheet (Exhibit-ka-14), against both accused persons.
19. So far as the submission of learned Senior Counsel Shri Jyotindra Misra, with regard to the fact that First Information Report is ante-timed is concerned, perusal of the record would reveal that incident is stated to have happened on 17.09.1997 at about 10:00 am. The F.I.R. of the incident has been lodged at P.S. Lalganj on the same day at about 10:45 am. The distance of the police station from the spot is written in the Chick F.I.R. (Exhibit-ka-15) as 05 km. towards south. The evidence, which has been placed on record by prosecution witnesses establishes that the injured Ram Shanker, after the incident, had boarded a manual ''rickshaw' for the purpose of reaching the police station and the distance of the police station being 05 km. from the spot, the First Information Report appears to have been lodged with promptness.
Perusal of the inquest report (Exhibit-ka-7) would also reveal that the name of the informant has been stated therein as Ram Shanker and the time of the lodging of F.I.R. has also been mentioned as 10:45 am. Perusal of inquest report (Exhibit-ka-7) would also reveal that the inquest had started at about 11:40 am. and Case Crime No. 200/1997, under Section 307 and 302 I.P.C. has also been mentioned in the report. The opinion of the Sub Inspector, who prepared this inquest report, would also reveal that a cognizable report had already been lodged about the incident at the P.S. concerned, when this inquest report was being prepared. Therefore, we do not find any substance in the submission of learned Senior Counsel pertaining to the fact that the F.I.R. is ante-timed and the fact that in the ''Majroobi Chitthi' of Ram Shanker, crime number, etc. have not been mentioned is of no consequence as there is evidence available on record which suggests that Ram Shanker was in a bad condition due to the injury sustained by him and immediately after lodging of the F.I.R., he was sent to the hospital.
20. Now, we deal with the other submission of learned Senior Counsel Shri Jyotindra Misra, pertaining to the fact that the ocular evidence and the medical evidence produced by the prosecution is contradictory and in any case the injury found on the person of Ram Shanker could not have been inflicted by the weapon assigned to him. Perusal of the record in the light of the submissions made by learned Senior Counsel would reveal that specific role of firing gun shot with the country-made pistol has been assigned to the instant appellant. P.W.-1/Ram Shanker was medically examined at P.H.C., Lalganj at about 11:25 a.m. on 17.09.1997 and a firearm wound measuring 5 cm. x 2 cm. (depth could not be measured) was found, however no wound of exit was present. P.W.-3/Dr. A.K. Dubey has clearly opined that the injury found on the abdomen of the injured was inflicted by the use of firearm, however, neither in the injury report nor in the testimony of Dr. A.K. Dubey, it has been mentioned/stated that this injury was an entry wound. In the injury report, it has been mentioned that the margins of the wound were inverted, from where an inference may be drawn that it may be an entry wound. No exit wound has been found on the person of Ram Shankar and there is nothing on record which may suggest that he was treated in any hospital. Therefore, the evidence of P.W.-1/Ram Shanker, only to the extent that he remained admitted in some hospital at Lucknow for 03 months does not appear to have been corroborated by any medical evidence, but the material part of his evidence that he was injured in the incident and sustained firearm wound on his abdomen has been amply corroborated by medical evidence. The submission of learned Senior Counsel with regard to the fact that no bullet, etc. has been found in the abdomen of injured and there was no exit wound would be taken care of by us at suitable place in this judgment but for now suffice it to say that evidence of Ram Shanker with regard to inflicting of injury by Fire Arm has been sufficiently corroborated by medical evidence. Similarly, P.W-4/Dr. S.C. Srivastava, who conducted the postmortem on the dead body of deceased Lallu Yadav, has corroborated the evidence of prosecution eye witnesses that the deceased had received firearm injury and the fact that the body of the deceased was found in a state that he was on his knees while his head was resting on the ground, could not be the basis to reject the otherwise reliable evidence of prosecution eye and medical witnesses. As per the opinion of doctor, the death of deceased had occurred due to shock and hemorrhage as the result of ante-mortem injuries. Therefore, the evidence of the prosecution factual witnesses has been sufficiently corroborated by the medical evidence. It has to be remembered that while appreciating the evidence of eye witnesses of the incident, video-graphic narration of the incident is neither possible nor desired and some isolated statement of the prosecution witnesses under duress of cross-examination can never be picked up in isolation for the purpose of impeaching their testimony. It is the overall character of the evidence of a witness which is material for the purpose of appreciation. We, having gone through the evidence of all prosecution witnesses as well as the Court witnesses, are satisfied that the evidence of prosecution witnesses of fact is sufficiently corroborated by the medical evidence.
21. Another submission of learned Senior Counsel Sri Jyotindra Mishra is with regard to the size of wound found on the abdomen of the injured Ram Shanker (5 cm. x 2 cm.) and according to him this injury could never be caused by the bullet used by the appellant and, therefore, the ocular evidence is in direct contrast of medical evidence. Firstly, the weapon by which the gun shot was fired has not been recovered, therefore, it could not be said with certainty as to from which weapon the bullet was fired. Secondly, this question either knowingly or unknowingly was not put by defence to Dr. A.K. Dubey, in his cross-examination to enable him to explain as to why injury of this dimension has been caused. Therefore, the appellant could not take any advantage of any situation regarding which an opportunity had not been provided to the prosecution witness to explain the same. Moreover, there may be several situations where the length and width of the wound may vary in size and the same also depends on the angle where from the gun shot is fired. We are not the experts but on plain consideration of facts, it is evident that if gun shot is fired from the front and from the same height as of the victim, the size of wound would be more or less same as of the bullet but if the gun shot is fired from an angle where the barrel of the weapon is situated parallel to the victim, the same may result into a bigger wound. In a fight between the persons or even in struggle, the position of both, the victim and the offender keeps on changing frequently. Therefore, the size of the wound may be big or small, depending upon the position of the victim and also on the angle from which the gun shot has been fired. The case law relied on by learned counsel for the appellant, in our considered opinion, is not applicable to the facts and circumstances of the instant case. Therefore, for these reasons, we do not find any substance in the submission of learned Senior Counsel that oral and medical evidence is contradictory to each other.
22. Learned Senior Counsel has also highlighted various pieces of statement in the cross-examination of the prosecution as well as court witnesses to show that the evidence of these witnesses is not reliable.
23. In Appabhai and Ors. vs. State of Gujarat, MANU/SC/0028/1988 it was observed by Hon'ble Supreme Court that :-
"A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses."
24. Honble Apex Court long back in Bharwada Bhoginbhai Hirjibhai v State of Gujarat as reported in AIR 1983 page 753, MANU/SC/0090/1983 while appreciating evidence of witnesses in the background of minor discrepancies laid down the following principles:-
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
25. In Krishna Mochi and Ors. vs. State of Bihar, MANU/SC/0327/2002 relying on State of Rajasthan v. Smt. Kalki and Anr. MANU/SC/0254/1981 it was opined by Hon'ble Supreme Court that normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so.
26. Having gone through the evidence of these witnesses very carefully in the back ground of law mentioned herein above, we are satisfied that there are only minor contradictions in the testimony of these witnesses. The cumulative result of the evidence of these witnesses is that the prosecution has been successful in establishing its case beyond reasonable doubt. We do not want to repeat the statement of the witnesses one after another to show that there are minor contradictions in their testimony. Suffice it to say that appellant has miserably failed to point any fault/lacunae in the evidence of these prosecution witnesses, which may warrant the rejection of their testimony.
27. Needless to say that the principle of ''Falsus in uno, falsus in omnibus' is not applicable in the Indian context and it is quite natural that witnesses are in a habit of exaggerating the incident in an attempt to get the sympathy of the court. Contradictions also occur due to fading of memory as the statement of the witnesses are recorded after considerable delay but in our considered opinion, if the core story of the prosecution case is intact, minor contradictions should not be given much weight. In the instant case, the core of the prosecution case is that appellant and co-convict Baijnath had came to the spot where injured Ram Shanker and deceased Lallu Yadav and their other relatives were supervising the work of digging of foundation and they went to the shop of Ram Bahadur for the purpose of talking, where there happened heated verbal exchanges and altercation and instant appellant took out a country-made pistol and fired, as a result of which Ram Shanker and Lallu Yadav got injured and Lallu Yadav succumbed to his injuries on the spot. The prosecution has successfully proved these facts beyond reasonable doubt by leading trustworthy and acceptable evidence of the prosecution witnesses and the trial court has also acted pro-actively in summoning two court witnesses, who have also corroborated the testimony of the prosecution witnesses. All attempts of the defence to portrait the evidence of these witnesses as tainted or untrustworthy have failed and in our considered opinion the witnesses produced by prosecution are reliable, trustworthy and their evidence can be safely accepted.
28. Now another limb of the argument of the Ld. Senior Counsel appearing for the Appellant is on the point of applicability of penal section to the proved facts and circumstances. He submits that from the proved facts and circumstances it is evident that there was no intention possessed by the appellant to cause the death of the deceased and therefore, at the most it can be said that the appellant was possessing knowledge that his act is likely to cause the death, which is covered under Section 304 Part II IPC and his conviction under Section 302 IPC is, thus, bad.
29. In order to appreciate this argument of Ld. Counsel reference may be made to certain pronouncements made by Hon'ble Supreme Court on the subject.
Hon'ble Supreme Court in Rampal Singh vs. State of U.P. reported in (2012) 8 SCC 289, MANU/SC/0589/2012 in following paragraphs has discussed the distinction between Section 302 and 304 I.P.C. as well as distinction in 304 Clause I and II, which are extracted hereunder:-
"10. Sections 299 and 300 of the Code deal with the definition of 'culpable homicide' and 'murder', respectively. In terms of Section 299, 'culpable homicide' is described as an act of causing death (i) with the intention of causing death or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such an act is likely to cause death. As is clear from a reading of this provision, the former part of it, emphasises on the expression 'intention' while the latter upon 'knowledge'. Both these are positive mental attitudes, however, of different degrees. The mental element in 'culpable homicide', that is, the mental attitude towards the consequences of conduct is one of intention and knowledge. Once an offence is caused in any of the three stated manners noted-above, it would be 'culpable homicide'. Section 300, however, deals with 'murder' although there is no clear definition of 'murder' in Section 300 of the Code. As has been repeatedly held by this Court, 'culpable homicide' is the genus and 'murder' is its species and all 'murders' are 'culpable homicides' but all 'culpable homicides' are not 'murders'.
11. Another classification that emerges from this discussion is 'culpable homicide not amounting to murder', punishable under Section 304 of the Code. There is again a very fine line of distinction between the cases falling under Section 304, Part I and Part II, which we shall shortly discuss.
12. In the case of State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. MANU/SC/0180/1976 : (1976) 4 SCC 382, this Court while clarifying the distinction between these two terms and their consequences, held as under:
12. In the scheme of the penal Code, 'culpable homicide' is genus and 'murder' its species. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called 'culpable homicide of the first degree'. This is the greatest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
13. Section 300 of the Code proceeds with reference to Section 299 of the Code. 'Culpable homicide' may or may not amount to 'murder', in terms of Section 300 of the Code. When a 'culpable homicide is murder', the punitive consequences shall follow in terms of Section 302 of the Code while in other cases, that is, where an offence is 'culpable homicide not amounting to murder', punishment would be dealt with under Section 304 of the Code. Various judgments of this Court have dealt with the cases which fall in various classes of firstly, secondly, thirdly and fourthly, respectively, stated under Section 300 of the Code. It would not be necessary for us to deal with that aspect of the case in any further detail. of course, the principles that have been stated in various judgments like Abdul Waheed Khan @ Waheed and Ors. v. State of A.P. [MANU/SC/0708/2002 : (2002) 7 SCC 175], Virsa Singh v. State of Punjab [MANU/SC/0041/1958 : AIR 1958 SC 465] and Rajwant and Anr. v. State of Kerala [AIR 1966 SC 1874] are the broad guidelines and not cast-iron imperatives. These are the cases which would provide precepts for the courts to exercise their judicial discretion while considering the cases to determine as to which particular clause of Section 300 of the Code they fall in.
14. This Court has time and again deliberated upon the crucial question of distinction between Sections 299 and 300 of the Code, i.e., 'culpable homicide' and 'murder' respectively. In the case of Phulia Tudu and Anr. v. State of Bihar (now Jharkhand) [MANU/SC/7909/2007 : AIR 2007 SC 3215], the Court noticed that confusion is caused if courts, losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of these sections. The Court provided the following comparative table to help in appreciating the points of discussion between these two offences:
Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done -
INTENTION
(a) with the intention of death; or (1) with the intention of causing death; or
(b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE
(c) with the knowledge that the act is likely to cause death .
(4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse or incurring the risk of causing death or such injury as is mentioned above.
15. Section 300 of the Code states what kind of acts, when done with the intention of causing death or bodily injury as the offender knows to be likely to cause death or causing bodily injury to any person, which is sufficient in the ordinary course of nature to cause death or the person causing injury knows that it is so imminently dangerous that it must in all probability cause death, would amount to 'murder'. It is also 'murder' when such an act is committed, without any excuse for incurring the risk of causing death or such bodily injury. The Section also prescribes the exceptions to 'culpable homicide amounting to murder'. The explanations spell out the elements which need to be satisfied for application of such exceptions, like an act done in the heat of passion and without pre-mediation. Where the offender whilst being deprived of the power of self-control by grave and sudden provocation causes the death of the person who has caused the provocation or causes the death of any other person by mistake or accident, provided such provocation was not at the behest of the offender himself, 'culpable homicide would not amount to murder'. This exception itself has three limitations. All these are questions of facts and would have to be determined in the facts and circumstances of a given case.
16. This Court in the case of Vineet Kumar Chauhan v. State of U.P. MANU/SC/0366/2008 : (2007) 14 SCC 660 noticed that academic distinction between 'murder' and 'culpable homicide not amounting to murder' had vividly been brought out by this Court in State of A.P. v. Rayavarapu Punnayya [MANU/SC/0180/1976 : (1976) 4 SCC 382], where it was observed as under:
... that the safest way of approach to the interpretation and application of Section 299 and 300 of the Code is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of Section 299 and 300 of the Code and the drawing support from the decisions of the court in Virsa Singh v. State of Punjab and Rajwant Singh v. State of Kerala, speaking for the court, Justice RS Sarkaria, neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the court said that wherever the Court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, on the facts of a case, it would be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be that the accused has done an act by doing which he has caused the death of another. Two, if such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in Section 299. If the answer to this question is in the negative, the offence would be culpable homicide not amounting to murder, punishable under the First or Second part of Section 304, depending respectively, on whether this second or the third clause of Section 299 is applicable. If this question is found in the positive, but the cases come within any of the exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the first part of Section 304 of the Code. It was, however, clarified that these were only broad guidelines to facilitate the task of the court and not cast-iron imperative.
17. Having noticed the distinction between 'murder' and 'culpable homicide not amounting to murder', now we are required to explain the distinction between the application of Section 302 of the Code on the one hand and Section 304 of the Code on the other.
18. In Ajit Singh v. State of Punjab [(2011) 9 SCC 462], the Court held that in order to hold whether an offence would fall under Section 302 or Section 304 Part I of the Code, the courts have to be extremely cautious in examining whether the same falls under Section 300 of the Code which states whether a culpable homicide is murder, or would it fall under its five exceptions which lay down when culpable homicide is not murder. In other words, Section 300 states both, what is murder and what is not. First finds place in Section 300 in its four stated categories, while the second finds detailed mention in the stated five exceptions to Section 300. The legislature in its wisdom, thus, covered the entire gamut of culpable homicide that 'amounting to murder' as well as that 'not amounting to murder' in a composite manner in Section 300 of the Code. Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences.
19. An analysis of these two Sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, that is (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first clause of this section includes only those cases in which offence is really 'murder', but mitigated by the presence of circumstances recognized in the exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular. In this regard, we may also refer to the judgment of this Court in the case of Fatta v. Emperor, 1151. C. 476 (Refer: Penal Law of India by Dr. Hari Singh Gour, Volume 3, 2009 )
20. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed.
21. An important corollary to this discussion is the marked distinction between the provisions of Section 304 Part I and Part II of the Code. Linguistic distinction between the two Parts of Section 304 is evident from the very language of this Section. There are two apparent distinctions, one in relation to the punishment while other is founded on the intention of causing that act, without any intention but with the knowledge that the act is likely to cause death. It is neither advisable nor possible to state any straight-jacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merits. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with a clear demarcation as to under what category of cases, the case at hand falls and accordingly punish the accused.
22. A Bench of this Court in the case of Mohinder Pal Jolly v. State of Punjab [MANU/SC/0130/1978 : AIR 1979 SC 577], stating this distinction with some clarity, held as under:
11. A question arises whether the Appellant was guilty under Part I of Section 304 or Part II. If the accused commits an act while exceeding the right of private defence by which the death is caused either with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death then he would be guilty under Part I. On the other hand if before the application of any of the Exceptions of Section 300 it is found that he was guilty of murder within the meaning of clause "4thly", then no question of such intention arises and only the knowledge is to be fastened on him that he did indulge in an act with the knowledge that it was likely to cause death but without any intention to cause it or without any intention to cause such bodily injuries as was likely to cause death. There does not seem to be any escape from the position, therefore, that the Appellant could be convicted only under Part II of Section 304 and not Part I.
23. As we have already discussed, classification of an offence into either Part of Section 304 is primarily a matter of fact. This would have to be decided with reference to the nature of the offence, intention of the offender, weapon used, the place and nature of the injuries, existence of pre-meditated mind, the persons participating in the commission of the crime and to some extent the motive for commission of the crime. The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code the accused is liable to be punished. This can also be decided from another point of view, i.e., by applying the 'principle of exclusion'. This principle could be applied while taking recourse to a two-stage process of determination. Firstly, the Court may record a preliminary finding if the accused had committed an offence punishable under the substantive provisions of Section 302 of the Code, that is, 'culpable homicide amounting to murder'. Then secondly, it may proceed to examine if the case fell in any of the exceptions detailed in Section 300 of the Code. This would doubly ensure that the conclusion arrived at by the court is correct on facts and sustainable in law. We are stating such a proposition to indicate that such a determination would better serve the ends of criminal justice delivery. This is more so because presumption of innocence and right to fair trial are the essence of our criminal jurisprudence and are accepted as rights of the accused."
30. In Camilo Vaz vs. State of Goa, (2000) 9 SCC 1, referring to the ambit of Section 304 of the Code, Hon'ble Supreme Court opined as under:
"This section is in two parts. If analysed the section provides for two kinds of punishment to two different situations. (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here important ingredients is the "intention"; (2) if the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a danda on vital part of the body with such a force that the person hit meets his death, knowledge has to be imputed to the accused. In that situation case will fall in part II of Section 304 IPC as in the present case."
31. Hon'ble Apex Court in Bunnilal Chaudhary Vs. State of Bihar : (2006) 10 SCC 639, wherein it has been held that :
"11. That Section requires that the bodily injury must be intended and the bodily injury intended to be caused must be sufficient in the ordinary course of nature to cause death. This clause is in two parts: the first part is a subjective one which indicates that the injury must be an intentional one and not an accidental one; the second part is objective in that looking at the injury intended to be caused, the court must be satisfied that it was sufficient in the ordinary course of nature to cause death. We think that the first part is complied with, because the injury which was intended to be caused was the one which was found on the person of Shambhu Raut. But the second part, in our opinion, is not fulfilled because but for the fact that the injury caused had penetrated the lung, death might not have ensued. In other words, looking at the matter objectively, the injury, which Bunnilal Chaudhary intended to cause, did not include specifically the cutting of the left lungs but to wound Shambhu Raut in the neighbourhood of the nipple on left side of chest. Therefore, we are of the opinion that Clause (iii) of Section 300 does not cover the case. Inasmuch as death has been caused, the matter must still come within at least culpable homicide not amounting to murder. There again, Section 299 is in three parts. The first part takes in the doing of an act with the intention of causing death. As we have shown above, Bunnilal chaudhary did not intend causing death and the first part of Section 299 does not apply. The second part deals with the intention of causing such bodily injury as is likely to cause death. Here again, the intention must be to cause the precise injury likely to cause death and that also, as we have shown above, was not the intention of Bunnilal Chaudhary. The matter, therefore, comes within the third part. The Act which was done was done with the knowledge that Bunnilal Chaudhary was likely by such act to cause the death of Shambhu Raut. The case falls within the third part of Section 299 and will be punishable under the second part of Section 304IPC as culpable homicide not amounting to murder."
32. In Manjeet Singh Vs. State of Himachal Pradesh(2014) 5SCC697,MANU/SC/0369/2014, wherein one person was done to death and three persons sustained Fire Arm injuries, Hon'ble Apex Court in para 26 held as under :
"26. The question now requires to determine is as to what is the nature of offence that the accused has committed. The evidence produced against the accused does not show that the accused had any motive to cause death of the deceased or have intended to cause such bodily injuries which were sufficient in the ordinary course of nature to cause the death of the deceased. Evidence on record also does not establish that the injuries caused on the body of the deceased must in all probability cause his death or likely to cause his death. On the spur of the moment, during the heat of exchange of words accused caused injuries on the body of the deceased which caused his death. Therefore, the ingredients of the murder as defined in Section 300, Indian Penal Code, have not been established against the accused. In our opinion, the accused was guilty of culpable homicide not amounting to murder Under Section 304, Indian Penal Code, and considering the fact that the accused had no intention to either cause the death of the deceased or cause such bodily injury as is likely to cause death of the deceased, it would be sufficient to impose on accused a sentence of seven years rigorous imprisonment and to impose on him a fine of Rs. 5,000/- and in default of payment of fine, a further imprisonment of six months."
33. In another case of Pulicherla Nagaraju @ Nagaraja Reddy vs. State of Andhra Pradesh (2006) 11 SCC 444, MANU /SC /8419/ 2006, Hon'ble Supreme Court enumerated some of the circumstances relevant to find out whether there was any intention to cause death on the part of the accused which are as under :-
"17.1) In Virsa Singh (supra), this Court held that a culpable homicide is a murder under Section 300 clause Thirdly, if the prosecution should establish four elements - (i) the presence of a bodily injury, (ii) nature of such bodily injury, (iii) intention on the part of the accused to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended; and (iv) the injury was sufficient to cause death in the ordinary course of nature (this part of enquiry being purely objective and inferential, nothing to do with the intention of the offender). Dealing with the question, as to how intention is to be inferred, Vivian Bose, J. succinctly stated:
In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted x x x x The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended some consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question...."
"18. Therefore, the court should proceed to decide the pivota, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302.
The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention."
34. We have very carefully perused the evidence available on record in the background of submission of learned Senior Counsel and the settled law mentioned herein before, what we find is that the F.I.R. in this case was lodged promptly and it has been stated therein that at the fateful day, informant/injured P.W.-1/Ram Shanker, his uncle Lallu (deceased) and Ramesh Pratap, Dinesh Pratap went to the spot for laying the foundation of house on a piece of land purchased from one Suresh Singh of ''Pandepur'. At the same time, Neeraj (Appellant) and co-convict Baijnath (since deceased) came there and they together went in front of the shop of Ram Bahadur and there was some heated verbal altercation and exchanges between both the parties with regard to the ongoing construction and, thereafter, on the instigation of Baijnath instant appellant fired gun shot towards the informant from a country-made pistol causing injury in his abdomen. He also fired second bullet towards deceased Lallu, who died on the spot. P.W.-1/Ram Shanker, who is an injured witness has clearly stated that he along with the deceased Lallu Yadav and other 04-06 persons were present on the spot for the purpose of laying the foundation. According to him, appellant and co-convict Baijnath came there and asked them not to raise construction on their land and they together went in front of the shop of Ram Bahadur and started talking. There were heated exchanges between them pertaining to the issue and on the instigation of Baijnath, instant appellant fired a shot towards informant Ram Shanker and also towards Lallu, resulting in the fatal injury to Ram Shanker and death of Lallu Yadav. It is also stated by this witness that the foundation was being dug by 04-05 persons. This witness in cross-examination has stated that accused persons fired at once. At Page No. 37 of the paper book in his statement he has stated that at the time of incident 03-04 more persons had accompanied accused persons and when altercation started there were around 08-10 persons at the spot. He, on the same page, has further stated that when quarrel aggravated, though there was no huge noise but there was verbal altercation with regard to ongoing construction. P.W.-2/Dinesh Pratap has also stated that after arriving at the spot accused persons took Ram Shanker and deceased in front of the shop of Ram Bahadur on the pretext of talking and when they were discussing/ negotiating the issue, verbal altercation erupted and on the instigation of Baijnath, instant appellant fired at Ram Shanker and Lallu. At Page No. 41 of the Paper Book, in his cross-examination, it is stated by him that accused persons came to the site of construction to call his uncle Lallu Yadav. They did not talk at the site and went in front of the shop of Ram Bahadur. At Page No. 42 of the Paper Book, he has further stated that amidst talking they were abusing and intimidating each other and this had happened for about two minutes. Importantly, at Page No. 44 of the paper book, he has stated that when accused persons came to the spot only verbal altercation took place but when they reached in front of the shop of Ram Bahadur, verbal altercation as well as physical altercation (lapta-jhapti) had begun and at the same time Devesh @ Neeraj Dixit (Appellant) took out a ''katta' and fired. At Page No. 46 of the paper book, this witness has further stated that after committing the crime they fled away from the scene. Page No.49 of the paper book is also important where this witness has stated that in his presence verbal and physical fight took place between Ram Shanker and accused persons and after the firing of the first shot, appellant-Neeraj did not run away and did not try to fire another shot on Ram Shanker and also that deceased Lallu was only 02 to 03 feet away from the Ram Shanker at the time of firing. C.W.-1/Ram Bahadur, who is the son of the deceased is not an eye witness and C.W.-2/Ramesh Pratap has stated that after arrival at the scene, accused persons and persons from the informant side went in front of the shop of Ram Bahadur. There was some verbal altercation and, thereafter, Neeraj had started firing. It is also stated by him at Page No. 70 of the Paper Book that Lallu (deceased) attempted to catch Neeraj, however, Baijnath over- powered him and, thereafter, Neeraj fired at Lallu also. At Page No. 73 of the Paper Book, this witness has further stated that the accused persons were not carrying any ''lathi' and danda' with them.
35. Having perused the testimony of the above witnesses of fact, it emerges that it has not been proved by the prosecution that any bullet, etc. was found in the stomach of the injured Ram Shanker and as regards the fact that fire arm injury sustained by the Ram Shanker was 05 cm. long, it may be a result of an odd angle from where the gun shot might have been fired. In the light of the fact that the bullet also hit deceased Lallu from behind on his back and made exit from the chest and actually has been found beneath Lallu by the Investigating Officer, the possibility that both injuries may have been caused by single gun shot could not be ruled out.
36. It is not permissible for us to carve out a third case which has not been pleaded by any party. It is established from the evidence on record that when appellant and co-convict Baijnath arrived at the scene of occurrence they asked Ram Shanker not to raise construction on the land and they together with other persons present there from the side of the informant, had gone to the shop of Ram Bahadur. It was there, during the talk that some heated exchanges and even physical altercation (lapta-jhapti) had occurred and, thereafter, the appellant fired. There is also evidence that before physical altercation there were exchanges of abuses and heated words. Therefore, this factual matrix clearly suggests that when appellant and co-convict Baijnath arrived at the site of construction they were not having any intention to kill and they asked the informant side to stop the work without taking out the ''tamancha', which was being carried by Devesh @ Neeraj (Appellant) and on the request of the appellant they all went near the shop of Ram Bahadur where some heated exchanges, ''lapta-jhapti', physical altercation took place and abuses were hurled towards each other and, thereafter the gun shot was fired by instant appellant. Therefore, it is clearly borne out from the evidence available on record that there was sudden quarrel which transformed into a sudden fight, abuses and intimidation were given to each other and in this background appellant took out a ''tamancha' and fired. The fact that 08 to 10 persons were present on the spot from the side of the informant and appellant and deceased Baij Nath were alone can also not be lost sight of. We have already held herein-before that possibility of firing only one gun shot could not be ruled out, as no exit wound has been found on the person of P.W.-1/Ram Shanker and it is also apparent that the appellant has not acted in a cruel manner and has also not taken any undue advantage of the situation of injured and deceased and admittedly they ran away from the spot immediately after commission of the offence. It is also evidently clear that there was no premeditation on the part of the appellant and further that there is no evidence that the appellant had made any special preparation for assault with the intent to kill. The appellant has committed the offence in the heat of passion without premeditation and from the aforesaid proven facts and circumstances, it cannot either be said that the appellant had the intention that such action on his part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause his death. Thus, having regard to the evidence available on record, in our considered opinion, it is apparent from the established facts that it is a case which falls under the 2nd part of Section 304 I.P.C. and 308 I.P.C. and, therefore, the appellant is liable to be convicted under Section 304 Part II I.P.C. and under Section 308 I.P.C. and not under Section 302 I.P.C. and 307 I.P.C. Hence, in our opinion, the trial court has committed an error in convicting the appellant Devesh Kumar @ Neeraj Dixit for committing the offence under Section 302, 307 I.P.C., while from the facts, circumstances and evidence available on record, the offence which has been proved by the prosecution to have been committed by the appellant-Devesh @ Neeraj is punishable under Section 304 (II), 308 I.P.C. and he is liable to be convicted accordingly.
37. We accordingly convict the appellant for committing the offence under Section 304 (II) I.P.C and Section 308 I.P.C. and having regard to the over all facts and circumstances, sentence him to undergo rigorous imprisonment for ten years and seven years respectively also to pay fine of Rs. 1 lac out of which, a sum of Rs. 75,000/- shall be paid to the victim-informant/Ram Shanker.
All sentences will run concurrently as ordered by the trial Court. Appellant shall also be entitled to the benefit of Section 428 Cr.P.C..
In case of non deposit of fine appellant will also undergo simple imprisonment for six months.
The appellant shall undergo the period of sentence as modified by this Court and if he has already undergone the whole period of imprisonment as modified by this judgment and is not liable to be further detained in any other case, he will immediately be set at liberty.
The appeal is thus partly allowed in the aforementioned terms and disposed of.
Let a copy of this judgment along with the lower court record be sent to the learned trial court forthwith by the office to ensure compliance.
Order Date :- 18.01.2021 Irfan/Praveen