JUDGMENT G.P. Srivastva, J.
1. This appeal has been preferred against the judgment and sentence dated 5 4.05 passed by the learned Addl. Sessions Judge, J.P. Nagar convicting the appellant and sentencing by capital sentence (death sentence) in Session Trial No. 613 of 2001 State v. Mohan Lal under Section 302 I.P.C., PS. Gajraula district J. P. Nagar.
2. The prosecution case in brief is that the informant Iqbal Ahmad is resident of village Salempur Gosai P.S. Gajraula district J.P. Nagar. His father deceased Hasamuddin had a Government Ration shop of Kerosene oil and sugar in the said village. On 4.8.2001 at about 4.30 P.M. deceased Hasanuddin was sitting at his shop as usual. The informant Iqbal Ahmad, Shamim, Imamuddin and Vidyadhar of the same village were also present. The accused Mohan Lal came to the shop and demanded 20 liters kerosene oil from the deceased The deceased refused to give kerosene oil without ration card which infuriated the accused The accused hurled filthy abuses and examined that he will not leave the deceased alive. The accused picked out a country made pistol and fired upon the deceased which hit his chest. The deceased died due to the said injuries when he was taken to Government hospital Gajraula. in the way. The informant Iqbal Ahmad submitted a written report Ext. Ka-1 at P.S. Gajraula on the same day at about 17.15 hours. A chick F.I.R. was prepared and a case was registered vide G.D. No. dated 4.8.01 at about 17.15 P.M. under Section 302 I.P.C. The Investigation was entrusted to S.O. Gambhir Singh. The Investigating Officer visited the place of occurrence picked up blood stained and plain earth, sealed the same and prepared memo Ext. Ka-14. After inquest the dead body of the deceased was sent for post mortem. The post mortem of the dead body of the deceased was conducted by Dr. Megh Singh, P.W.3 on 5.8.01 at about 1.45 P.M. According to the opinion of the doctor the death was caused due to shock and haemorrhage as a result of ante mortem injuries. The post mortem report is Ext. Ka-2. The doctor found following ante mortem injuries on the body of the deceased:
1. Gun shot wound of entry 4 cm x 2.5 cm chest cavity deep (through & through) over left side of front of chest 7 cm above the left nipple Blackening & charring present around the wound, margins are inverted.
2. Gun shot wound of Exit 1 cm x 1 cm over left side back of chest 4 cm below the tip of scapula (left) and 8 cm lateral to mid lines, margins are everted.
The second Investigating Officer, S.O. Manohar Singh P.W.4 started investigation w.e.f. 8.9.2001. He recorded the statement of the accused in jail and the accused promised to get the country made pistol with empty cartridge recovered through whom he has committed the murder of the deceased. The investigating Officer took the accused on remand on 4.11.01. The Investigating Officer on his pointing got the country made pistol with an empty cartridge in its barrel recovered from the field of one Om Prakash Goel. The recovered article was sealed and was sent for ballistic examination to Vidhi Vigyan Pryogshala. A report has been received from Vidhi Vigyan' Prayogshala dated 14.2.03 which shows that the disputed cartridge was fired from the country made pistol recovered at the pointing of the accused. After usual investigation a charge sheet was submitted against the accused.
3. The case of the accused was committed to the court of Session. The learned Sessions Judge, J.P. Nagar framed charge against the accused under Section 302 I.P.C. The accused pleaded not guilty and claimed trial.
4. The prosecution examined P.W.I informant Iqbal Ahmad, P.W.2 Vidyadhar Sharma, P.W.3 Dr. Megh Singh, P.W.4 S.O. Manohar Singh, P.W. 5 HC Ramvir Singh and P. W.6 CP Harendra Singh.
5. The accused in Ins statement under Section 313 Cr.P.C. has denied the prosecution case and stated that he will lead no evidence in defence.
6. The learned Addl Sessions Judge, J.P. Nagar vide impugned judgment convicted the accused and sentenced him to death in an offence under Section 302 I.P.C Feeling aggrieved with the judgment and sentence passed by the learned Addl, Sessions Judge the accused had preferred this appeal. A reference has also been submitted for confirmation of death sentence by the learned Addl. Sessions Judge.
7. We have heard learned counsel for the parties and have gone through the entire evidence on record.
8. It is not disputed that the death of deceased Hasanuddin was caused by fire arm injury on 4.8.01 at 4.30 P.M. at village Salempur Gosai P.S. Gajraula at his shop.
9. The prosecution in order to prove its case has examined two witnesses of fact. Iqbal Ahmad P.W.I and Vidyadhar Sharma P.W.2. Iqbal Ahmad P.W.1 is the informant and son of the victim. He has stated on oath that at the time of the occurrence i.e. 4.8.01 at about 4.30 P.M. his father was sitting in his Parchoon shop. He was also sitting on the Chabutara besides the shop. The accused Mohan Lal arrived and demanded 20 liters of Kerosene oil. The deceased demanded ration card and told that he will not give the kerosene oil without ration card. The accused then abused, picked out his country made pistol and fired shot on the chest after dragging him out from the shop. The witnesses chased the accused but he was able to escape at the point of pistol. The informant took his father to Government hospital Gajraula where he died in the way. He submitted written report at P.S. Gajraula. The witness was subjected to lengthy cross-examination but nothing come out to discredit him but for minor and natural contradictions.
10. P.W.2 Vidyadhar Sharma is an independent witness. He has stated that he had gone to the shop of deceased Hasanuddin on 4.8-01 at 4.30 P.M. the accused came and demanded 20 liters of kerosene oil. The deceased refused to give kerosene oil without permit (ration card) which infuriated the accused. The accused abused and told that how he dare to demand permit from him. Thereafter the accused fired upon the deceased at a close range. All the persons present chased the accused but he was able to escape. This witness was also subjected to cross-examination but nothing has come out to discredit his testimony except some minor and natural contradictions.
11. Besides the oral evidence there is recover of country made pistol and one empty cartridge in the barrel of the pistol which was recovered at the pointing of the accused on 4.11.01 when he was taken on police remand by the Investigating Officer Manohar Singh S.O P.W.4. The country made pistol and the cartridge was sent for ballistic examination and the report shows that the cartridge was fired from this pistol. This part of the statement of the accused is relevant under Section 27 Evidence Act where he has stated that this was the pistol which was used in the occurrence.
12. Sri R.K. Khanna, learned counsel for the appellant has argued that the P.W.I son of the deceased Iqbal Ahmad has admitted in his statement that the appellant was card holder. According to the prosecution case the appellant had gone to fair price shop of the deceased and demanded 20 liters of kerosene oil. On refusal to give kerosene oil the appellant fired upon the deceased causing him the fatal injury. It has also come in the statement of P.W.2 Vidyadhar Sharma that the appellant had come to the shop along with a container though no container was found by the Investigating Officer on the spot. The learned counsel for the appellant has further argued that it was a case of sudden fight which started after refusal of supply of kerosene oil to the appellant by the deceased. Therefore it is a culpable homicide not amounting to murder and covered with the Exception 4 of Section 300 I.P.C. to which is punishable under Section 304 Part 1 I.P.C. It has further been alleged that the act was committed without premeditation in a sudden fight in heat of passion. In this connection he has placed reliance on Jagrup Singh v. State of Haryana 1981 SCC (Crl.) 768 held that "in the present case the genesis of the quarrel resulting in the head injury to the deceased could not be clearly shown by the prosecution. On the finding of the High Court that the appellant when he struck the deceased with the blunt side of the gandhala in the heat of the moment, without premeditation and in a sudden fight, the case was covered by Exception 4 to Section 300. It is riot suggested that the appellant had taken undue advantage of the situation or had acted in a cruel or unusual manner. Thus all the requirements of Exception 4 are clearly met. Therefore the conviction of the appellant under Section 302 must be altered to one under Section 304 part II, I.P.C."
13. Reliance has further been placed on the following cases :
"Ram Karan and Ors. v. State of U.P. 1982 SCC (Crl.) 386; Nathu v. State of Rajasthan 1986 Crl. L.J. 413; Radha Kishan v. State of Haryana 1987 SCC (Crl.) 413 and Prakash Chand v. State of H.P. AIR 2004 Supreme Court 4496."
14. We have gone through all the cases cited by the learned counsel for the appellant carefully. In all these cases the exception 4 to Section 300 I.P.C. was attracted as there was no intention of causing injury as was likely to cause death. The occurrence took place in a heat of passion, in a sudden fight without any premeditation. It was held in Jagrup Singh's case (Supra) "Culpable homicide amounts to murder under clause Thirdly of Section 300 I.P.C. if (1) a bodily injury is present (2) the nature of the injury is proved (3) there was an intention to inflict that particular injury and (4) that injury is sufficient to cause death in the ordinary course of nature. The injury found to be present must be the injury that was intended to be inflicted. There is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304, Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any, circumstances negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either clause Firstly or clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death."
15. In a recent case Suresh Chandra v. State of U.P. 2005 Crl.L.J. 3449, it was held "learned counsel for the appellants submits that the incident had happened without any premeditation or prior concert, upon a sudden quarrel and the resultant attack on the victims was unintentional and, therefore, the offence would appropriately fall under Exception 4 punishable under Section 304 Part I or II. We find it difficult to countenance this argument. Though there was absence of premeditation and it was a case of sudden fight, that is not sufficient to bring the offence committed by the accused within the purview of Exception 4. The further requirement of Exception 4 that the offender should not have taken undue advantage or acted in a cruel or unusual manner should be satisfied. The very fact that the accused-appellants used the fire arms in the course of a frivolous quarrel triggered off by the sarcastic remarks of Ravindra Singh would demonstrate beyond doubt that the appellants acted in a cruel manner and it would further demonstrate the intention to cause death or at any rate, to cause a bodily injury of the nature mentioned in clause thirdly of Section 300. Such intention is writ large on the acts done by the accused. Thus, it is a case in which Clauses 1 to III of Section 300 I.P.C. are attracted and, as already observed, Exception 4 would not come to the rescue of the appellants for the reason that they have acted in a cruel and unusual manner by shooting at unarmed victims who merely indulged in a verbal duel with them. The fact that the other two accused who were said to have exhorted the three appellants to attack the members of the other party were acquitted has no material bearing on the question whether the appellants could be given the benefit of Exception 4. Thus, the argument in regard to the nature of offence cannot be sustained. On the facts of this case, it is only Section 302 IPC that is attracted."
16. In the instant case the accused-appellant came to the ration shop of the deceased, illegally demanded 20 liters of kerosene oil without ration card and when the deceased shop keeper demanded ration card he became infuriated and shot him dead by country made pistol which he already possessed. Thus the accused-appellant used fire arm in the course of frivolous illegal demand of 20 liters of kerosene oil without ration card. The accused-appellant was taking undue advantage and acted in a cruel manner which demonstrate his intention to cause death. It was clearly held that the nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attended upon the death. Therefore in view of the law laid down by the Apex Court the appellant is not entitled to the benefit of Exception 4 of Section 300 I.P.C. and his case is squarely covered by Section 302 I.P.C.
17. In view of foregoing discussions we are of the view that the learned Addl. Sessions Judge has rightly convicted the accused-appellant in offence under Section 302 I.P.C.
18. The learned Addl. Sessions Judge had sentenced the appellant to death influenced with the fact that the appellant was already convicted in a case under Sections 394/302 I.P.C. in Session Trial No. 174 of 1990 which is under appeal and another case under Section 3(1) U.P. Gangster (Ante Social Activities Prevention) Act 1986. Barring this instance the facts and circumstances of the case do not show that this is a rarest and rare case in which capital punishment can be imposed. The only aggravating circumstance in this case is the past criminal record of the accused. As observed above the accused was sentenced to life imprisonment in Session Trial No. 174 of 11990 State v. Mohan Lal and Ors. under Sections 394/302 I.P.C. P.S. Gajraula Moradabad on 24.9.1998 by the II Addl. Sessions Judge, Moradabad. Admittedly this is under appeal. The other case is Session Trial No. 2 A of 1991 State v. Mohan Lal wherein the accused-appellant was convicted under Section 3(1) U.P. Gangster (Ante Social Activities Prevention) Act 1986 by Special Judge (Gangster Act) Moradabad on 7.9.02 when he confessed his guilt. So there is only one concluded case wherein the appellant has been convicted on the basis of his confession in an offence under Section 3(1) U.P. Gangster (Anti Social Activities Prevention) Act 1986.
19. In this connection the Apex Court in Kishori v. State of Delhi has held that capital punishment can be imposed in the rarest of the rare cases and if there are any aggravating circumstances such as the accused having any criminal record in the past; the manner of committing the crime; delay in imposing the sentence and so on. In the present case, the prosecution case, indicates that the riot in Delhi broke out as a result of the death of the then Prime Minister and her death appears to be the symbol or web around which the violent emotions were released. Experts in Criminology often express that when there is a collective action, as in the case of a mob, there is a diminished individual responsibility unless there are special circumstances to indicate that a particular individual had acted with any pre-determination such as by use of a weapon not normally found. If, however, a member of such a crowd picks up an article or a weapon which is close by and joins the mob, either on his own volition or at the instigation of the mob responding to. the exhortation of the mob playing no role of leadership, then such a person did not intend to commit all the acts which a mob would commit left to himself, but did so under the influence of collective fury.
20. In that case the said appellant had been charged with offence in seven cases and he had been convicted in all those cases, on appeal he had been acquitted in four cases and in three cases his conviction has been affirmed. In the instant case we have already observed that there is a single conviction on the part of the appellant that too in a Gangster Act and not in any substantive offence. The circumstances of the case do not bring the case in the category of rarest of the rare cases. So we are of the view that in this case death penalty is not at all required and it should be altered to the life imprisonment.
21. In the result the appeal is hereby dismissed with the modification that the capital punishment is reduced to the sentence of life imprisonment in offence under Section 302 I.P.C. The accused is in jail. He shall be kept there to serve out the sentence awarded to him.
22. The reference made by the Addl. Sessions Judge is hereby dismissed.