JUDGMENT Amar Saran, J.
1. This jail appeal arises from the judgment and order dated 10.12.1985 passed by the VII Additional Sessions Judge, Moradabad whereby the learned Judge has convicted and sentenced the appellant Sheesh Ram to imprisonment for life under Section 302 IPC.
2. Briefly stated, the prosecution case was that the deceased. Mahendra had gone to the place of the appellant for doing the work of labour and he had borrowed the rope of the appellant for drawing some water from a well. After that Sheesh Ram has left for Moradabad and as no one was present in his house, the deceased-Mahendra had handed over the rope to Sheesh Ram's neighbour Har Swaroop. On 29.12.1985 at about 8.00 P.M. appellant-Sheesh Ram arrived at the house of Mukund Ram, the informant, and father of the deceased (P.W.1) and called for his son for returning his rope. On the cry of Sheesh Ram, the appellant, Mukand Ram, the informant and his younger brother Ram Singh. P.W. 2 went at the door of their house along with the deceased. The deceased Mahendra told Sheesh Ram that he had left the rope with the appellant's neighbour, Har Swaroop because his (appellant's) house was shut and no one was present there. Infuriated by this reply. Sheesh Rama retorted that the deceased Mahendra was telling a lie and thereupon he fired op the stomach of the deceased with a country made pistol.
3. The informant Mukund Ram, P.W. 1 lodged the report about this incident (Ext. Ka 1) on the same day at 9.15 P.M. at police station Moonda Pandey which was 2 Kms. from his house. This report was scribed by one Sukhveer Singh. The investigating officer, Yogendra Singh, PW 9, entered the report in the G.D. and recorded the statement of the informant Mukund Ram under Section 161 Cr.P.C. He also recorded the statement of the deceased Mahendra who was injured at that time. The deceased Mahendra appeared to be in a fit mental state at that time. His statement (Ext Ka 9) was entered in the case diary. After that injured Mahendra was sent to the district hospital Moradabad along with Constable Sita Ram, P.W. 10 and Home Guard Indra Pal for the purpose of his medical examination.
4. Dr. Rakesh Khare, P.W. 8, Medical Officer, District Hospital, Moradabad, who conducted the medical examination of Mahendra on 29.12.84 at about 11.45 P.M. found the following injuries and mental condition of the injured:
"Gun shot wound of entry on left side abdomen 1 cm x 1 cm, size through and through up to wound of exit on the back (left side) which is measuring 1.5 x 1.5 cm. The wound of entry is situated 17 cm below the left nipple and wound of exit 10 cm above left hip bone. Direction downwards and backwards. The wound of entry is surrounded by blackening, charring and tattooing in an area of 15 cm around the wound over chest and abdomen. The left forearm has also marks of tattooing present from elbow to wrist. Clotted fresh blood is also seen around the wound.
Patient admitted in semi-conscious state, pulse 116/ mt low volume. Resp. 22/mt Temp. B.P. 90/60 mm Mt of hg. Skin cold and clammy. Injury is caused by firearm kept U.O and is fresh."
The investigating officer, Yogendra Singh, PW 9, also recorded the statements of Ram Singh, P.W. 2, Amar Singh, Sadhu Ram, Tej Pal, Bharosey and Bankey Lal under Section 161 Cr.P.C. after sending Mahendra for medical examination
5. On 30.12.1984, the investigating officer, made a spot inspection and prepared site plan and examined the "Dibia", which was burning at the spot at the time of incident, which is shown in the site plan (Ext. Ka- 10). He also recovered a 315 bore bullet from the spot and prepared its fard (Ext. Ka-11). He also recorded the 161 Cr.P.C statements of the witnesses Budha, Smt. Dulari, Chhattar Singh, Bhullan and Raja Ram for proving the recovery of the bullet. He searched for the appellant Sheesh Ram at his house and during search, the investigating officer recovered 4 cartridges of 315 bore, which were taken into possession by him. Thereafter, investigation was conducted by S.O. Sheo Charan Singh, who submitted the charge sheet on 12.1.1985, which has been proved by S.I. Yogendra Singh, P.W. 9 as he was familiar with the handwriting of S.O. Sheo Charan Singh.
6. Mahendra succumbed to his injuries on 3.1.1985 at about 7.30 P.M. at the district hospital, Moradabad. After the death of the deceased, the case was converted from one under Section 307 IPC to a case under Section 302 IPC and entry of conversion was made in the General Diary, vide Ext. Ka- 16.
7. The post-mortem (Ext. Ka 2) was conducted on the body of the deceased Mahendra on 4.1.1985 at 3.45 P.M. by Dr. A.K. Dubey, P.W. 5, who found the following ante mortem injuries on the body of the deceased:
"(1) G.S.W. of entry 1 cm x 0.75 cm x abd. Cavity deep on left side abdomen 3 cm away from mid axillary line and 12 cm above left ant. Superior iliac spine, margins inverted sic communicating to wound of exit 2.5 cm x 1 cm on left side back 4 cm from mid-line and 6 cm from waist (At L4) margins everted and pus coming out. Directed front to back downwards and medially (2) Stitched wound 13 cm long in front and mid line of abdomen 10 cm above pubic symphysis vertically placed 15 stitches and 7 small rubber tubes present.
(3) Stitched Wound 10 cm long horizontally placed from middle of wound No. (2) and 10 stitches present and a corrugated rubber sheet present in and outside of abd. at outer side of wound."
8. The charge was framed under Section 302 IPC against the appellant on 31.5.1985 by the learned Judge, who charged the appellant for having committed the murder of Mahendra by intentionally causing his death on 29.12.1984 at about 9 P.M.
9. The appellant pleaded not guilty and claimed to be tried.
10. Four witnesses of fact, P.W. 1, Mukund Ram, the father of the deceased, P.W. 2 Ram Singh, the uncle of the deceased, P.Ws 3 and 4 Chhattar and Budha, who were the neighbours and are said to have seen the appellant running away from the spot, have been examined in this case. P.W. 5 Dr. A. K. Dubey has concluded the post mortem on the body of the deceased, who found the injuries as described above.
11. On internal examination, Dr. Dubey noted that both the chambers of the heart were full, the peritoneum was stitched, green pus was coming out, left kidney and pelvis were lacerated and he mesentery was stitched, stomach and bladder were empty. The cause of death was syncope. He further stated that he could not be sure if the deceased would have died if no pus has appeared his wound.
12. P.W. 7 Ayub Khan was the Constable, who carried the body of the deceased for post mortem examination on 4.1.1985 P.W. 7, Dr. Rakesh Khare, whose description of the injuries on Mahendra have been mentioned above, examined the injured when he was alive on 29.12.1984. According to him tile injuries could have been caused on 29.12.84 at 8.00 P.M. There was no injury on the brain of the injured. The injuries could have caused the death of the deceased, but it was even possible that the deceased could have survived the injuries.
13. P.W. 9, Yogendra Singh, was the Sub-Inspector who investigated the case. Steps taken by him for the investigation of this case have been described above. He claims that when he recorded the statement of Mahendra, he was normal and denied that the injured was semi conscious when he was brought to the police station. However, he did not get the dying declaration conducted On account of dearth of light he did not conduct the spot inspection on the same night although he reached there at 12.30 in the night. He further stated that it was by mistake that he did not prepare the recovery memo of "Dibia".
14. P.W. 10, Constable Sita Ram took the injured for medical examination along with Home Guard Indra Pal and he claims that the injured was speaking on the way.
15. P.W. 11, Dr. R.K. Jain, operated the deceased Mahendra on 30.12.1984 at 5.00 P.M. He found blood and faeces in, the stomach. The large intestine was lacerated through and through and some faeces were coming out. The injuries of the deceased were sufficient in the ordinary course of nature to cause death, However, as there was no injury on the brain or the heart, the injured could have spoken for 3-1/2 hours of the incident. If his operation had succeeded, the deceased could have survived.
16. P.W. 12, Ram Gopal, Court Moharrir, prepared the chik FIR at 9.15 P.M. on 29.12.1984 under Section 307 IPC against the appellant, which is exhibited as Ext. Ka 14. After the death of the deceased, as per report No. 15 dated 5.1.85 at about 8.45 A.M, he converted the case to one under Section 302 IPC and made the relevant entries in the GD Ext. Ka 16. He also sent information to the senior officer at 9.15 P.M by report No. 18. There was a non-cognizable report in the police station on 29 12.84 at 12.10 a.m., prior to this incident and no report was lodged on that day after the present report.
17. Apart from the formal witnesses mentioned above, P.W. 1, Mukund Ram, who was the informant-eye witness and father of the deceased has deposed in court that on the date of incident when the appellant arrived at the house of the complainant at 8.00 P.M. and called for the deceased Mahendra, the deceased came out and his mother also followed him. The complainant and his brother Ram Singh were awake. After the door was opened, Sheesh Ram, the appellant entered into the Baithak and then he asked Mahendra about his rope. When the deceased said that he had given the rope to Har Swaroop, the appellant's, neighbour, the appellant reacted saying that he (deceased) was lying and in a fit of anger, the appellant fired with his country made pistol on his stomach. Thereupon witnesses raised cries and tried to catch Sheesh Ram, but they were unsuccessful. "Dibia" was said to be burning in the house. Thereafter, they lodged the report in the manner described above. Mahendra had borrowed the rope from the appellant for preparing Gara. After giving the rope, Sheesh Ram, the appellant had gone to town and his house was closed, hence Mahendra had handed over the rope to his neighbour Har Swaroop.
18. P.W. 2, Ram Singh, who is the brother of the complainant and uncle of the deceased, has stated that one day prior to the incident he had gone to do the work of labour. He had taken the rope from Sheesh Ram for drawing the water from the well and prepared the Gara. On the day of incident, Sheesh Ram arrived at their house and called for the deceased and thereafter Sheesh Ram entered into their Baithak. At that time Mahendra was with his wife. When Sheesh Ram enquired from Mahendra about his rope, he (Mahendra) replied that as the appellant had gone to town, he had given it to Har Swaroop, his neighbour and he would bring the rope in the morning. Hearing this the appellant Sheesh Ram cried out that Mahendra was lying and took out his country made pistol and fired at Mahendra. An attempt was made to catch Sheesh Ram, but he ran away to the north side and thereafter towards the west and could not be apprehended. After that Mukund, his brother, dictated the report to Subkveer Singh and proceeded to the police station along with Mahendra, the injured. At the police station, the investigating officer recorded the statements of Mahendra, Ram Singh and Mukund. Thereafter, he went to the hospital along with some Constables. A Dibia was burning in the house. The witnesses Budha and Chhattar saw the appellant running away by means of torch light. Mahendra died in the hospital after 4-5 days of this incident.
19. P.W. 3 Chhattar Singh has stated that on the date in question at about 8.00 P.M. when he heard some noise from the house of Mahendra, he came out from his house and flashed his torch and then he saw Sheesh Ram running away with a country nude pistol in his hand. He was being chased by Mukund and Ram Singh. The next day, a bullet was recovered from Mahendra's house. The investigating officer sealed and took it in possession after preparing its recovery memo.
18. P.W. 4 Budha has deposed that at 8.00 P.M. on the fateful day, he heard the sound of a gun-shot from the house of Mahendra. Then he came out with a lathi and torch and with its aid he saw Sheesh Ram running about 3-4 yards away followed by Ram Singh and Mukund. Sheesh Ram had a country made pistol and there was piece of cloth on his shoulder.
19. The defence set up by the appellant in his statement under Section 313 Cr.P.C. was of denial and that he did not know the reason why he was being falsely implicated. However, Budha had cut his paddy for which he had given him 2-4 slaps. He did not produce any witness in defence.
20. We have heard Shri R.K. Srivastava, Amicus Curiae for the appellant and Shri S.S. Yadav, learned AGA representing the State.
21. Firstly, it was contended by the Amicus Curiae that the place of incident has been changed as the FIR mentioned that the incident took place at the door of the house of the informant and the deceased, whilst in the evidence of the prosecution witnesses No. 1 and 2, it is mentioned that the incident took place in the Baithak and in the 161 Cr.P.C. statement of the deceased, it is mentioned that the deceased came out of the Baithak where his father and uncle were sleeping and he sat on the cot of his father when the incident took place.
22. We see no material difference between the version, which was mentioned in the FIR about the incident having taken place at the door of the house, and this version in the 161 Cr.P.C. statement of the deceased that the incident took place on his father's cot in the baithak, since the Baithak, according to the site plan is in the outer room of the house and the deceased came out of the inner room into this room when the incident took place.
23. The second contention of the learned counsel was that no recover)' memo of the light was made and there was no mention of any Dibia in the FIR. The investigating officer has stated that incidentally he had forgotten to prepare the recovery memo of the Dibia although he had inspected it, and it has also been shown in the site plan.
24. This is not a case where the incident has taken place in a hit and run manner in the night time. Rather, it is a case where the appellant arrived at the house of the deceased, remonstrated with him for having taken away his rope and on being enraged with the reply of the deceased, he fired the shot which eventually proved fatal. In such circumstances, there could be no question of any mistake in identity of the appellant. Also for accurately firing on the deceased some light must have been present at the place of incident. There is also no reason why the witnesses could implicate the appellant and spare the real assailant, who would have fired at the deceased. The only reason mentioned by the appellant in his statement under Section 313 Cr.P.C. was that he had given 2-3 slaps to Budha for cutting his paddy crop. No witness came forward to support this version of the appellant and giving 2-3 slaps to Budha even if it had been done at some time, could give no reason to the father and uncle of the deceased lodging the report against the appellant, which was corroborated by the deceased himself when he gave his 161 Cr.P.C. statement to the investigating officer, and was therefore in the nature of a dying declaration.
25. Indeed, it may have been better if some attempts were made to get the dying declaration of the deceased recorded by a Magistrate, but only on account of this inaction on the part of the prosecution, the version given by eye witnesses cannot be thrown over board.
26. Learned counsel has further contended that no independent witnesses were produced by the prosecution. In this connection, it may be mentioned that the incident took place in the house of the deceased himself. His father and uncle who reside there, are the most natural and independent witness and could be expected to be present at that time. Also witnesses P.Ws. 3 and 4 Chhattar and Budha, who are neighbours of Mahendra, claim to have seen the appellant running away from the house after the incident. Nothing has been elicited from their cross-examination that they were inimical to the appellant or that they were in any manner related to the deceased. Simply by being neighbours, they cannot be considered to be partisan witnesses, rather they would be natural witnesses in the circumstances.
27. There is a suggestion that the deceased died as a result of accidental fire when the deceased was manipulating his country made pistol. There is absolutely no material to substantiate this bald suggestion.
28. It is alleged that there is no adequate motive for this crime. When there is a reliable eye witness account, the absence of motive looses importance. Also there is nothing intrinsically unbelievable in the description of the incident by the witnesses that the appellant in a fit of anger fired at the deceased because the deceased had taken away his rope. We also find that in this case there' is no alternative suggestion as to how the deceased could have died and as mentioned above there is absolutely no reason for the witnesses and the deceased in his dying declaration (the 161 Cr.P.C statement to the police) to nominate the appellant whilst sparing the real assailant. Non-examination of Har Swaroop, to whom the deceased is said to have given the rope, by the police or by the court is also of no significance because whether the deceased had actually given the rope to Har Swaroop or was only making an excuse that he. had done so would be matters of equal annoyance for the appellant who had fired at the deceased in a fit of anger, when the deceased told him that he had left the rope with Har Swaroop.
29. In this view of the matter, we feel that this case against the appellant is fully proved and the trial court had committed no illegality in recording the conviction of the appellant as above.
30. The last submission raised by the learned counsel was that the appellant ought not to have been convicted under Section 302 IPC, but he should have only been convicted under Section 304 IPC as this was a case of single fire by the appellant in the heat of anger.
31. We find force in this submission of the learned counsel for the appellant. In the circumstances of the case it is conceivable that on returning from Bulandshahr and needing water to drink, the appellant may have found his rope which was required for drawing water from the well missing. He may then have gone to the house of the deceased looking for his rope and getting annoyed with what he considered a lame explanation by the deceased that the rope was left with a neighbour and would be handed over only the next morning, it is quite possible that the appellant may have lost his head and in a fit of anger fired a single shot on the deceased without intention of causing death or of causing such an injury that he may have known likely to cause the death of the deceased. Hence the case can not be brought within the purview of clauses 'firstly' and 'secondly' of the situations when culpable homicide amounts to murder under Section 300 I.P.C as the intention to cause death or the intention to cause such bodily in jury as the offender knows likely to cause death are wanting in this case.
32. It is significant to note that in this case, no question has even been put to the appellant under Section 313 Cr.P.C that the injury caused to the deceased by the fire of the appellant was sufficient in the ordinary course of nature to cause Mahendra's death. In this connection, the relevant question No. 6 of the examination of the appellant, when translated in English, reads as follows:
"It has come in evidence that on the above date, time and place you told Mahendra that you are a liar and after saying that with the intention of causing his death, you fired on Mahendra, which struck him on his stomach, which resulted in his death on 4.1.85."
33. Even the charge against the appellant was faulty as it mentioned that the appellant had committed the murder by intentionally causing the death of Mahendra on 29.12.84 at about 8. P.M. at police station Moonda Pandey." This averments in the charge is clearly incorrect because the deceased died on 3.1.1985 at 7.30 P.M. and not on 29.12.1984 at 8.00 P.M as described in the charge. Also, we find that both the doctors, PW 8, Dr. Rakesh Khare, who conducted the medical examination of the injured when he was aliye and PW 5, Dr. A.K. Dubey, the doctor who conducted the post mortem examination of the deceased have not categorically stated anywhere in their evidence that the injury to the deceased was sufficient in the ordinary course of nature to cause death of the deceased.
34. P.W. 8 Dr. Rakesh Khare has given a conflicting version after noting that there was no injury on the brain of the deceased, by stating that the injury received by the deceased (who was then , injured) might have been sufficient for causing his death, but it was also possible that the deceased might not have died as a result of the injury.
35. Similarly, P.W. 5 Dr. A.K. Dubey has stated that there was injury to one kidney and it was possible for the patient to remain alive with one kidney and it was not possible to say that even if no pus had formed in the injury, the deceased would have survived or not. There was no injury on the heart and brain and that some times complication arise when a patient is in hospital after treatment.
36. We also find that the deceased had not died immediately after the fire, but his death took place after five days of the incident. In these circumstances the case can also not be brought within the clause 'thirdly' of Section 300 IPC which makes culpable homicide murder when objectively there is material to hold that the intended bodily injury was sufficient in the ordinary course of nature to cause death.
37. Also as there was no background of enmity between the parties, it cannot be ruled out that when the appellant went to the house of the deceased and almost insinuated that the deceased had stolen his rope, the deceased may have uttered some words, which may have resulted in an unpremeditated and sudden quarrel and in the heat of passion, the appellant may have fired the single shot on the deceased which eventually proved fatal. It may be noted that under the Explanation to Exception 4 of Section 300 IPC, it is immaterial as to which party offered the provocation or committed the first assault.
38. In this view of the matter, we think, the interest of justice would be served if the conviction of the appellant is converted from one under Section 302 IPC to one under Section 304 part (1) IPC and the appellant is sentenced to 10 years R.I. in place of the imprisonment for life.
39. Before parting with this case, it would be pertinent to mention a very disturbing feature in this case which has virtually amounted to denial of any effective right for legal aid to the appellant which is guaranteed under Section 304 Cr.P.C. and Article 22(1) of the Constitution of India. There appears to be a very lackadaisical and inadequate compliance of statutory and Constitutional provisions and certainly there does not appear to have been any compliance of these provisions in their true spirit
40. We find that the appellant had been in jail since 7.1.1985 as he seemed to have been devoid of any support from his family, and an Amiens Curiae was appointed during the trial of this case as well as during the hearing of this appeal. Even though the appellant's petition from jail against the sentence dated 10.12.1985 reached the High Court on 17.1.1986 and it was within time up to 8.2.1987, yet we find that the appeal was only admitted on 8.4.1991 by the High Court when the delay was condoned. Thereafter the paper books were directed to be prepared immediately on receipt of the record, which was to be sent for at once. The case was to be listed for orders immediately after preparation of paper books after appointing Amicus Curiae, However, the office reported only on 4.12.2004 that the jail appeal No. 653 of 1991 was ready and the case was being put up for hearing. Thereafter on 15.12.2004 a Division Bench appointed Shri Raj Kamal Srivastava as Amicus Curiae and directed that the case be listed in the last week of January, 2005 when arguments were heard and this judgment has been pronounced. This was no compliance of the statutory provision as well as the orders of this Court. The appellant, therefore, appears to have undergone about 20 years imprisonment and it appears that owing to the pendency of the criminal appeal which was filed, after such an inexcusable lapse of the office and delay in preparation of the paper book and the listing the appeal for final hearing for which the appellant was not to be blamed. Even his prayer for premature release under paragraph 198 of the Jail Manual and under the Prisoners Release on Probation Act, Form No. A after he had undergone an actual period of 14 years has not been considered.
41. The Registry is directed to forthwith remedy such situations and to ensure that jail appeals are placed for admission and hearing at a very early date after they are received from jail. The paper books should also be prepared expeditiously and all efforts should be made that the jail appeals may be listed for hearing on a priority basis preferably within six months of their being filed.
42. Let a copy of this judgment be placed before the Registrar General for compliance.
43. In view of what has been stated hereinabove, the appeal is partly allowed. In case the appellant has undergone 10 years imprisonment, he shall be released forthwith unless wanted in connection with any other case.