JUDGMENT K.N. Ojha, J.
1. This appeal has been preferred against orders of conviction and sentence dated 24-3-1981, passed by VII Additional Sessions Judge, Kanpur in ST. No. 41 of 1980, State v. Sheo Chandra Singh, by which the appellant has been convicted under Section 302, IPC and has been sentenced to undergo, imprisonment for life.
2. According to prosecution, the occurrence did take place on 15-12-1979 at 12-00 a.m. noon. The FIR was lodged on the same, day at, 3-30 p.m. at police station Bindhnu, District Kanpur, which is at the distance of 7 miles from the place of occurrence. FIR was lodged by Sarju Singh containing the fact that his son Udai Bhan Singh had gone to field to irrigate land from canal in Bhainsahi Har of village Kalyani Purwa on. 15-12-1979. At about 12.00 noon when he was preparing Nali, appellant Sheo Chandra Singh, resident of his village went there and raised objection. He insisted that he would irrigate the land. Exchange of hot talk did take place when Chandra Bhan Singh and Ravi Bhan Singh, other two sons of informant Sarju Singh, reached there. Kallu Singh and Ram Gopal Singh, who were going on bicycle on the patri of the canal, also reached there but Sheo Chandra Singh who was already having country made pistol, fired on his son Udai Bhan Singh, who died on the spot. Sheo Chandra Singh ran away along with country made pistol.
3. Post-mortem examination on dead body of Udai Bhan Singh, aged about 25 years was done in mortuary of Kanpur. Following ante-mortem injury was found on his body --
1. Firearm wound of Entry 4 cm. x 31/2 cm. x Vertebrae deep over front of lower part of neck, just above the suprasternal notch, more on right side. Blackening, charring and tatooing was present around the wound.
4. Rigor Mortis was present on both upper and lower extremities, but there was no sign of decomposition. Muscles and vessels were lacerated. Four wadding pieces were found embedded underneath the right clavicle at its medial end and 30 small pellets were embedded in the muscles, vessels and vertebra. Larynx was fractured. Four small pellets were found embedded in the lung tissues. Three small pellets were found in cavity right side. Oesophagus was lacerated and congested underneath the injury. 2 oz. Semi-congested material was found in the stomach, small intestine was half full and large intestine was containing faecal matter. In the opinion of the Doctor, death was due to shock and haemorrhage as a result of firearm injury.
5. Ram Sagar Yadav, the then Station Officer, made investigation, prepared inquest report, recorded statement of witnesses under Section 161. Cr. P.C. prepared site-plan, recovered blood stained and plain earth from the spot and after completing the investigation, submitted charge-sheet against the accused.
6. Prosecution examined P.W. 1 Sarju Singh, eye-witness, P.W. 2 Chandrika Prasad, constable who carried the dead body for the post-mortem examination, P.W. 3 Constable Ram Ashery, who prepared chick report, P.W. 4 Dr. S. N. Pandey, who performed autopsy on the dead body of Udai Bhan Singh in mortuary on 16-12-1979 at 1-30 p.m., P.W. 5 Chandra Bhan Singh is another eye-witness of the occurrence and brother of the deceased. P.W. 6 is Ram Sagar Yadav, who made investigation and submitted charge-sheet.
7. Accused denied that he did commit murder of Udai Bhan Singh. It is alleged that Sarju Singh, father of the deceased was involved in the case under Section 302, IPC on account of Chhabi Nath, brother of the appellant. Therefore, Sarju Singh was carrying bad blood against Chhabi Nath. There was dispute of landed property also for which a Panchayat was called for and due to this reason the appellant has been falsely implicated in this case.
8. The appellant examined D.W. 1 Udai Singh, who is Telegraphist of Lower Ganga Canal Department. He has stated that if the level of the water in the canal is below 6 ft., the fields cannot be irrigated from the ca'-nal. On 15-12-1979 water level was 5.7 ft. only and, therefore, there was no chance of land being irrigated.
9. The occurrence is said to have taken place on 15-12-1979 at 12.00 noon. The police station is at a distance of 7 miles from the place of occurrence. The FIR was lodged by father of the deceased Udai Bhan Singh on the same day at 3.30 p.m. Witnesses P.W. 1 Sarju Singh, father of deceased and P.W. 5 Chandra Bhan Singh, brother of the deceased have supported the prosecution story that hot talk did take place in respect of water of Nali as a result of which Sheo Chandra Singh, who was already having country made pistol with him inside his dhoti, fired at Udai Bhan Singh, who met instantaneous death. Presence of these witnesses on the spot is quite natural because the land was being irrigated. Sarju Singh had gone to provide breakfast to the deceased and Chandra Bhan Singh, brother of the deceased had gone with Udai Bhan Singh to look after the Nali through which water was flowing. Thus, presence of P.W. 1 Sarju Singh and P.W. 5 Chandra Bhan Singh on the spot cannot be doubted. These witnesses have stated that exchange of hot talk did take place, there was exchange of insulting language also, Sheo Chandra Singh, who was having country made pistol, fired at Udhai Bhan Singh resulting into his death. The fire was caused from a near place as is evident from the firearm injury which contains blackening, charring and tatooing around the wound. The firearm injury was caused over the front and lower part of neck, which is vital part of the body. The injury was so serious that Udhai Bhan Singh died on the spot.
10. Witnesses have stated that blood was found on the spot and the pellets were recovered from the place of occurrence which confirmed the place of occurrence that the firearm injury was caused at place "A" as shown in the site-plan.
11. The accused could not be arrested on the spot by father, brothers and two witnesses going on the parti of the canal as he was having country made pistol in his hand but prompt FIR, consistent and natural evidence of two eye-witnesses, recovery of blood, pellets and wadding pieces from the place of occurrence, the nature of ante-mortem injury, which in the opinion of Doctor was the cause of death, confirm the fact that the appellant caused firearm injury to Udhai Bhan Singh, as a result of which he immediately died on the spot.
12. The learned counsel for the appellant has placed reliance on exception-1 provided in Section 303, IPC, which contemplates that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or otherwise.
13. Learned senior counsel Sri P. N. Misra, for the appellant has also cited 1992 (29) ACC 267, "Muradhwaj v. State" in which it has been held by this Court that it was the complainant's party, who first started abusing filthy language against the accused as a result of which the accused fired and, therefore, the offence committed by the accused appellant is one under Section 304, Part I of the Indian Penal Code and not under Section 302 of the Code Another ruling cited is 1990 (27) ACC 51 : (1989 All LJ 1306) "Mukul Chand Mandal v. State of U. P.", in which it has been held by this Court that according to the FIR the appellant Mukul Chand Mandal and co-accused Hari Pal Mandal checked Barun Dungi from interfering with the demarcation stone and the piled earth which, according to them, indicated the extent of Barun's field. A marpit started between them. At this the appellant brought his licenced gun from his house and shot at Barun Dungi, who was injured. It was held that the offence under Section 304, Part II was made out and not under Section 302, IPC. The third ruling, cited in 1992, SCC (Cri) 952 : (AIR 1992 SC 754) : (1992 Cri LJ 701) v. Sreedharan v. State of Kerala", in which it has been held by Hon'ble the Supreme Court that when the action preceded by a sudden quarrel at home, accused appellant running after deceased for about 81 feet and giving him fatal blow by stopping him on the road, it was whole incident beginning from the quarrel at home and ending on the road, one continuous sequence and infliction of the single blow was result of provocation which appellant got in the heat of passion upon the sudden quarrel. Hence the appellant was guilty of culpable homicide not amounting to murder. Fourth ruling cited is 1988 SCC (Cri) 905 : AIR 1988 SC 2136 : 1989 Cri LJ 122) "Sunder Singh v. State of Rajasthan" in which it has been held by Hon'ble the Supreme Court that when there was dispute between the parties as to who had the turn to use the water pump and when there is no clear evidence who had the turn, in the circumstances it can be assumed that the accused in exercise of his right to use the pump got enraged and tried to prevent the mischief by the deceased. Hence, conviction was altered from Section 302 to Section 304, Part I, IPC. The fifth ruling cited is 1987 Supreme Court Criminal Rulings 210 : (AIR 1987 SC 768 : 1987 Cri LJ 713) "Radha Kishan v. State of Haryana", in which it has been held by Hon'ble the Supreme Court that when shot was on account of some grave and sudden provocation or on a sudden quarrel, conviction under Section 302, IPC was modified to Section 304, Part I, IPC.
14. It is stated by P.W. 1 Sarju Singh, father of the deceased, that his son Udai Bhan Singh was removing blockade of the Nali of the canal for irrigating his land, which was objected by the appellant. Appellant Sheo Chandra Singh did not fire just after coming from his house. He first resisted on reaching the spot. Exchange of hot talk did take place for two minuted between the deceased and the appellant. It means initially the appellant had no intention to cause death of Udai Bhan Singh. While exchanging hot talk, they came at the ridge of the 'Nali'. Appellant was infuriated, then he fired. If he would have gone with the intention to commit murder, he would not have entered into exchange of hot talk and he would have immediately fired on Udai Bhan singh and run away. He would not have given occasion to the brothers and father of the deceased to reach the spot.
15. P.W. 1 Sarju Singh says that there was no enmity between appellant Sheo Chandra Singh and the family members of the deceased. Hence, brothers and father of the deceased had no idea that appellant would fire on Udai Bhan Singh. It means, except exchange of hot words between the appellant and the deceased on the spot, there did not exist any malice due to which it may be said that the appellant had intention to commit murder of Udai Bhan Singh.
16. If there would have been deliberation, the appellant would have gone along with other members of his family, armed with weapons and would have committed murder rather than going alone and enter into hot words and resist that blockade be not removed till the land of the appellant was irrigated.
17. In the instant case, if the victim would have stopped to remove the blockade, firearm injury would not have been caused by the appellant. It means, when the appel lant came from his house to the place of Nali, he had no intention to commit the murder. It was exchange of hot talks, which infuri ated the appellant and immediately inspired the appellant to open fire.
18. The accused Was about 24 years of age at the time of the occurrence. He was young person. There is nothing impossible if he was infuriated due to exchange of hot talks.
19. In the instant case, the death of Udai Bhan Singh, caused by the appellant, amounts to culpable homicide not amount ing to murder because it was caused under sudden and grave provocation. Therefore, a punishment of ten years rigorous imprisonment would be sufficient to meet the ends of justice.
20. Appeal is partly allowed. The appellant Sheo Chandra Singh is convicted under Section 304, Part I of the Indian Penal Code instead of Section 302, IPC and he is sentenced to ten years rigorous imprisonment under Section 304, Part I, IPC. He is on bail. His bail is cancelled. Court concerned shall cause him to be arrested and lodged in jail to serve out the sentence.
21. Let a copy of the judgment along with the record be sent down to the trial Court for compliance and report to this Court within two months from today.