JUDGMENT M.C. Jain, J.
1. Two persons, namely, Vineet Kumar Chauhan alias Pintu and Dharamveer were tried before the III Additional Sessions Judge, Moadabad in Sessions Trial No. 189 of 1994. The charges against Vineet Kumar Chauhan alias Pintu were under Sections 302/307/352/504 I.P.C. whereas the other accused Dharamveer was charged under Section 352 and 504 I.P.C.
2. The genesis of the prosecution case was the written F.I.R. lodged at Police Station Majhola, District Moradabad on 13.10.1993 at 11.50 A.M. by an eyewitness PW 1 Sri Krishna Sharrna (husband of the deceased Premwati). The incident took place on that date at about 9.45 A.M. in Mohalla Chiriya Tola, Police Station Majhola, District Moradabad at a distance of about 3 kms. from the Police Station. The accused Vineet Kumar Chauhan alias Pintu resided in front of the house of PW 1 Sri Krishna Sharma (informant). Me (Vineet Kumar) was doing the business of dish antenna providing such facility against charges. On the ill-fated day at about 9.45 A.M. the informant was there in his house and his children were busy in watching T.V. programme. Vineet and Dharamveer accused respondents went to his residence and tried to persuade his son PW 2 Ravindra Sharma to take connection of dish antenna from him. PW 2 Ravindra Sharma replied that (hey were already enjoying the T.V. programmes without taking any such connection and they needed no such connection. The accused took ill of it and started hurling abuses. Not only this, they manhandled PW 2 Ravindra Sharma. The informant and his wife intervened and turned them out of their house. Vineet hurriedly went to his house and brought out the licensed revolver of his father. With the intention of killing them, he started firing shots from the revolver. Me did so from the door of his house. Some of the shots hit the door of the informant and one of them hit his wife Premwati in her jaw. She was seriously injured. The accused then ran away. PW 1 Sri Krishna Sharma brought his injured wife to the hospital for treatment and thereafter lodged the F.I.R., resulting in the registering of the case and the investigation as usual at the hands of PW 6 SI Radhey Shyam Sharma. The chargesheet was filed under Sections 307 and 452 I.P.C. Smt. Premwati, however, died on 25.3.1994. It should also be related here that PW 4 Dr. Jagmal Singh had initially examined Premwati in District Hospital, Moradabad on 13.10.1993 at 11 A.M. The following injuries were found on her person:
1. Lacerated wound 1.5 cm x.5 cm x not probed on face, left side over left mandible, 3 cm below and outer to left angle of mouth. Advised x-ray of left side face and left side neck.
2. Lacerated wound.5 cm x.5 cm x skin on left arm outer part, 4 cm. Above left elbow.
3. Both the injuries were fresh. Injury No. 1 was alleged to have been caused by firearm but final opinion was reserved to be given after x-ray. Injury No. 2 was caused blunt object. On X-ray being taken, radio opaque shadow elongated was found in thoracic spine in dorsal region over T 5-6 and as such injury No. 1 was opined as caused by firearm.
4. The victim remained under treatment and supervision of PW 5 Dr. D.S. Ahlawat. As per his testimony, she suffered paralysis in her both the legs due to bullet injury sustained in the spinal cord. As her proper treatment was not possible, she was referred to Delhi. On 15.10.1993 she was taken to Delhi and on 21.10.1993 she was again admitted in Moradabad Hospital. She developed bed sores and ultimately, died on 25.3.1994. Post mortem over her dead body was conducted by PW 7 Dr. A.P. Singh on 25.3.1994 at 11.45 P.M. She was aged about 56 years and about V2 clay had passed since she died. The following ante mortem injuries were found On his person:
1. Bed sore 18 cm x 10 cm x bone deep on the linear back at the Micro coccyx region, bones exposed with sloughing and pus formation, dressing present.
2. Bed sore 10 cm x 8 cm x muscle deep on the left gluteal region with sloughing and pus formation, dressing present.
3. Bed sore 12 cm x 81 cm x muscle deep on the right gluteal region with sloughing and pus, dressing present.
4. Bed sore 20 cm x 10 cm x muscle deep on the right lumber region, pus formation present.
5. Bed sore 5 cm x 4 cm x muscle deep, sloughing (paper torn).
6. Bed sore 4 cm x 3 cm x muscle deep, sloughing (paper torn).
7. Old healed scar size 1.2 cm x1/2 cm on the left face at the chin 21/2 cm away from medium plank thoracic spine.
5. On internal examination, the doctor recovered a metallic bullet from her spinal cord which had caused extensive damage in thoracic spine and paralysis in hall" of the body. The cause of death was septicemia and toxemia due to bed sores.
6. The defence was of false implication.
7. At the trial, the prosecution in all examined seven witnesses, out of whom PW 1 Sri Krishna Sharma (husband of the deceased) and PW 2 Ravindra Sharma (son of the deceased) were eyewitnesses. PW 3 Vinay Kumar Sharma was a witness of the recovery of blood stained and simple pieces of the floor taken in possession by the Investigating Officer from the spot where the victim was hit of the shot fired by the accused Vineet Kumar Chauhan and also of a lead (front part of the bullet) fired by the accused. It would be recalled that some of the shots opened by Vineet Kumar had hit the wall of the house (comprising shop also in continuation of the same wall in southern side) of the victim. He was also the witness of the recovery of 32 Webley Scott Revolver with six live cartridges from the house of the accused Vineet Kumar. Reference has already been made of the testimony of PW 4 Dr. Jagmal Singh, PW 5 Dr. D.S. Ahlawat and PW 7 Dr. A.P. Singh. PW 6 SI Radhey Shyam Sharma was the Investigating Officer of the case.
8. The trial Judge however, recorded acquittal on these grounds:
(i) The F.I.R. was lodged after consultation;
(ii) The incident did not take place in the alleged manner;
(iii) The presence of PW 1 Sri Krishna Sharma and PW 2 Ravindra Sharma was doubtful;
(iv) No independent witness was examined;
(v) The ocular testimony was inconsistent with medical evidence and that no dying declaration of the deceased was recorded;
(vi) ft could not be established from the report of the Ballistic Expert that the lead (front part of the bullet) recovered front the spot pertained to a shot fired from revolver recovered from the house of the accused Vineet Kumar;
(vii) The deceased had actually died of septicemia and toxemia owing to bed sores. She was not properly advised and attended while she was admitted in hospital and death was attributable to the negligence and bed sores.
9. We have heard Ms. N.A. Moonis, AGA for the State appellant and Sri P.C. Srivastava, counsel for the respondent. The record is before us which we have carefully perused. The State counsel has argued that the findings of the trial Judge are based on faulty appreciation of evidence and none of the reasons given by him justifies the acquittal. Instead, the guilt was proved by convincing ocular testimony of PW 1 Sri Krishna Shanna and PW 2 Ravindra Sharnia who were the most natural witnesses and the same also fully reconciled with the medical evidence. The basic cause of the death of the deceased, she argued, was bullet injury caused to her by the accused Vineet Kumar. On the other hand, Sri P.C. Srivastava, learned counsel for the accused respondents has supported the acquittal for the reasons given in the. impugned judgment. It has also been urged that the medical evidence, did not prove that the injury of spine was in consequence of shooting. It has further been urged that the victim herself left the hospital against medical advice. Thus, according to the counsel for the accused respondents, the view taken by the trial Judge is reasonable one which does not call for any interference by this court of appeal.
10. We propose to examine the vital aspects of the matter in the discussion that follows:
11. The gist of the testimony of PW1 Sri Krishna Sharma (husband of the deceased) and PW 2 Ravindra Sharma (son of the deceased) is set forth as it would help a long way in appreciating the matter. According to them, at the time of the incident, the two accused came there and tried to persuade one of them (Ravindra Sharma) to take connection of dish antenna from one of them (Vineet). Dharamveer was said to be the servant of Vineet. PW 2 Ravindra Sharma declined to take connection of dish antenna, saying that they were already enjoying the TV programmes without any such connection. Then the two accused abused and manhandled one of them (Ravindra Sharma). Krishna Kumar Sharma and his wife (victim) intervened and turned the accused out of their house. Thereafter, Vineet Kumar accused went to this house and took out the licensed revolver of his father. He started firing from his door with the intention to kill. Sri Krishna Sharma closed the door of his drawing room. Some shots of the bullets hit the wall/door of his house and shop (comprised in the same building in continuation in the south of the drawing room). The victim went to close the main door and one bullet shot by Vineet Kumar hit her jaw, The accused persons then ran inside their house. It has also been stated by them that when Vineet was opening bullet shots Dharamveer was exhorting him to do so. The subsequent part relates to the victim being taken to the hospital for treatment and lodging of the F.I.R. by one of them, namely, PW 1 Sri Krishna Sharma at the Police Station the same day at 11.50 A.M.
12. Reference having already been made to the remaining testimony of the prosecution, the same need not be repeated.
13. We first take up the case of the accused Dharamveer. It is to be noted that the F.I.R. which is the first version of the prosecution does not say that at the time of opening bullet shots by Vineet, he (Dharamveer) was exhorting him. It came to be introduced in the evidence of the eyewitnesses. So far as the first part of the incident is concerned that the two accused went to the house of the complainant and tried to persuade PW 2 Ravindra Sharma to take dish antenna connection who declined to oblige and then an altercation took place between the two sides with the trading of abuses, we do not think that any offence came to be committed thereby when the two accused were turned out of the house of the complainant. Section 95 I.P.C. itself says that nothing is an offence by reason that it causes or that it is intended to cause, or it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm. Reference being not there regarding the exhortation part allegedly played by Dharamveer accused in the F.I.R, when Vineet was opening bullet shots from the revolver, in our opinion, it is the outcome of afterthought. A person himself armed with a revolver with blood in his eyes hardly needs any exhortation to open shots. Therefore, the acquittal of Dharamveer is justified and does not call for any interference in appeal.
14. It takes us to the case of the other accused Vineet, On wading through the evidence and cross-checking the findings of trial court therewith, we are in judgment that he did commit the offence of murder punishable under Section 302 I.P.C. and none of the reasons assigned by the trial Judge to record acquittal holds water. Instead, the trustworthy ocular testimony was perfectly in harmony with medical evidence proving his guilt to the hilt without any shadow of doubt.
15. The incident took place at about 9.45 A.M. and the report was lodged the same day at 11.50 A.M. by Sri Krishna Sharma (husband of the victim). The distance of the Police Station from the place of occurrence was 3 km. Immediately after the incident, he took his badly injured wife to the hospital. His such anxiety of first providing medical aid to her was natural. He could not be expected to immediately run to the Police Station after the incident at hurricane "speed, ignoring his badly injured wife to her fate. Her medical examination report Ex.Ka-4 shows that she was examined in the District Hospital, Moradabad at 11 A.M. by PW 4 Dr. Jagmal Singh. It is recorded in the medical examination report (Ex.Ka-4) that she had been taken there by her husband PW 1 Sri Krishna Sharma. PW 1 Sri Krishna Sharma stated before the court that he wrote down the F.I.R. in the hospital and then took it to the Police Station where he lodged it. The F.I.R, was prompt and there is nothing to jump to the conclusion that it was lodged after consultation. The finding of the trial court to the contrary is wholly unjustified and perverse.
16. PW 1 Sri Krishna Sharma and PW 2 Ravindra Sharma were the most natural witnesses of the incident, the victim having been hit at the main door of her house from the bullet shot fired by the accused Vineet from the door of his house situated in front of the house of the victim. The site plan would show that east-faced house of the witnesses and the victim was in front of the house of the accused Vineet with gap of 10 paces only between the two houses. PW 1 Sri Krishna Sharma and PW 2 Ravindra Sharma satisfactorily explained their presence at the spot at their house at that time. PW 1 Sri Krishna Sharma testified that he was Head Clerk in Moradabad Inter College. lie used to go to the College at 6.30 A.M. and his duty was upto 12 O' clock noon. But that day, he had returned to his house at 8.30 A.M. from the School as he had to go to the doctor with his ailing daughter Vineeta. He was subjected to searching cross-examination on this aspect of the matter, but nothing could be elicited to favour the accused. His said daughter was suffering from typhoid for the last 10-1.2 days and was under the treatment of Dr. S.K. Sharma. Her recovery was not satisfactory and she was to be taken to the said doctor who used to sit at his dispensary at 10 A.M. He further explained that his this married daughter was living with his along with her husband Imrat Lal. Imrat Lal was employed in a private concern and had gone to his duty. As it was not possible for him to be on leave, he himself had returned from the College to take his daughter to the Doctor for consultation. It also came down from him that the District Hospital was situated at a distance of about 2 kms. from his house. After the incident, the victim was taken to the hospital on rickshaw. The fact that it was he who had admitted his wife in the hospital and she was medically examined there at 11 A.M. further corroborates his presence at his house at the time of the incident and could not be at all doubted.
17. The presence of PW 2. Ravindra Sharma (son of the deceased) is also beyond pale of doubt. It was he with whom an altercation of the accused had taken place a shortwhile before the incident over the issue of taking connection of dish antenna. He stated that he was employed at a firm-Mennakshi Traders situated in Malviya Nagar and used to leave for his employment place at about 10.15 A.M. It is common knowledge that in cities, the shops in the market open between 10 and 11 A.M. The employees have generally to be there till the closing time of about 8 P.M. Therefore, it was not unusual that he was present at his house till 9.45 A.M. Mis presence at his house at the time of the incident was most probable.
18. Non-examination of the independent witnesses could not cause a dent in the prosecution case. True, in the F.I.R. Rama Shankar, Rakesh Kumar and Arvind Kumar were named as other witnesses who witnessed the incident. So far as Arvind Kumar is concerned, it has come in evidence that he had married with the cousin sister of the accused Vineet. Therefore, he could be least interested to support the prosecution. Non-examination of other independent witnesses in the F.I.R. has also to be ignored having regard to this aspect of the matter that people generally avoid court proceedings by appearing as witnesses in criminal matters to guard against any trouble for themselves in future. Justice cannot be denied simply because the prosecution could not examine the other witnesses named in the F.I.R. The evidence is not to be counted. Section 134 of the Evidence Act itself provides that no particular number of witnesses shall in any case be required for the proof of any fact. In any proceedings, it is not the number of witnesses which counts for the success, but the quality of testimony counts. A fact may be proved by a single witness or may remain unproved even where hundreds of witnesses have deposed in proof of that fact. Corroboration as a condition for judicial reliance on the testimony of a witness is not a matter of law, but a guidance of prudence under given circumstances. In the present case, the testimony of the natural witnesses PW 1 Sri Krishna Sharma and PW 2 Ravlndra Sharma is of sterling character with no holes whatsoever, so Tar as this part of the prosecution case is concerned that it was the accused Vineet who had opened bullets from the revolver from his door, one of which had hit the victim who had come to close the main door of her house.
19. Non recording of the dying declaration of the deceased could not be a factor to be interpreted adversely against the prosecution case. She suffered miserably from the injury caused to her by the accused Vineet. The bullet reached her spinal cord. She lived in excruciating pain and suffering after receiving the injury till she died, she had suffered complete paralysis of both lower limbs and loss of sensation and muscle power below nipples with loss of control over urinary bladder and bowel due to firearm injury, bullet being present in dorsal region. Her existence after sustaining this injury was worse than death. The law does not say that dying declaration of a victim has necessarily to be recorded if he/she survives for certain period after sustaining injuries in an incident. It would depend on the facts and circumstances of each case. In any case, non-recording of dying declaration would not eclipse the trustworthy evidence of the eyewitnesses on record. There was no justification for the trial Judge to have taken it to be a negative point against the prosecution that her dying declaration was not recorded, unmindful of the miserable condition of the victim sustaining the bullet injury caused to her by the accused Vineet of which she died on 25.3.1994.
20. We also do not find any inconsistency in the ocular testimony and the medical evidence. The trial Judge observed that PW 4 Dr. Jagmal Singh who had initially examined the victim (deceased) admitted in his cross-examination that there was no track from injury No. 1 to the place where radio opaque shadow was seen. According to the trial Judge, it finished the possibility of the bullet going to the spinal cord and causing paralysis. We should point out that the above statement of PW 4 Dr. Jagmal Singh that there was no track from injury No. 1 to the place where radio opaque shadow was seen, was anatomically patently wrong. For the sake of clarity, it should be recalled that the injury No. 1 of Smt, Premwati was a lacerated wound on face, left side over left mandible. Dr. Jagmal Singh mentioned in his initial report dated 13.10.1993 that it was said to be 'allegedly' caused by firearm but final opinion would be given after X-ray. He advised x-ray of face and neck. As per his supplementary report Ex.Ka-5 dated 8.11.1993 after x-ray of face and neck done on 13.10.1993 vide report No. 3414 of Dr. S.K. Rastogi, Radiologist of District Hospital Moradabad, no radio opaque shadow was seen. The patient was admitted and orthopaedic surgeon in-charge advised x-ray of thoracic spine. On 22.10.1993 x-ray was accordingly done which revealed a radio opaque shadow in the waist. It was PW 5 Dr. D.S. Ahlawat under whose treatment the deceased remained in District Hospital, Moradabad. He stated that because of bullet injury in spinal cord, she had suffered complete paralysis in her both lower limbs with loss of sensation and muscle power below nipples and loss of control over urinary bladder and bowel. The bullet was found present in dorsal region. He also deposed that her proper treatment was not possible at Moradabad and so she was advised to be taken to Delhi. She was taken to Delhi by her relatives on 15.10.1993 and was readmitted in Moradabad Hospital in serious condition on 21.10.1993. She was readmitted because of spinal shock. Bed sores had started and her life was in danger. The statement of PW 1 Sri Krishna Sharma is that she remained admitted in Moradabad Hospital till 31.12.1993. Thereafter, the Doctors declared her incurable and she was brought home where she ultimately died on 25.3.1994.
21. It is significant to point out that it was the bullet fired by Vineet Kumar Chauhan from the revolver that had hit the deceased. Conversely stated, it was not a cartridge. The bullet having hit the victim in jaw region could not gently and smoothly travel inside the body through a definite track or course. The course of bullet also depended upon the impact of force and the obstruction to the bullet inside the body. The finding of the trial Judge based on the statement of PW 4 Dr. Jagmal Singh was anatomically wrong that there was no track from injury no. l to the place where radio opaque shadow was found and it finished the possibility of the bullet going to the spinal cord, We should make reference to anatomical structure of human body. Spinal cord is a single cord extending from the base of the brain to lumber 3rd and 4th spine. Spinal cord has four parts. The part inside the neck vertebra is cervical spinal cord; inside the thoracic vertebrae (T 1 to T 12) is thoracic spinal cord and the remaining are third and fourth parts, i.e., lumber, sacral and coccygeal spinal cord. In the instant case, the bullet fired by the accused Vineet struck on soft tissue of the face near the angle of jaw and through neck, it traversed to thoracic spine, hitting the 5th thoracic vertebra, badly damaging the underlying spinal cord. This discussion renders it abundantly clear that in fact there was track from injury No. 1 of the victim to the place where radio opaque shadow was seen. It is a fact that the bullet was found stuck in the spinal cord of the victim and the same was recovered by PW 7 Dr. A.P. Singh at the time of post mortem of the lady. It is abundantly clear that there was no inconsistency whatsoever between the medical evidence and ocular testimony.
22. The trial Judge found another imaginary discrepancy between medical evidence and ocular testimony that as per PW 1 Sri Krishna Sharma and PW 2 Ravindra Sharma the bullet hit the deceased when she was standing on the same level on which Vineet was at the outer part of his house. He referred to the last statement of PW 4 Dr. Jagmal Singh in his cross-examination that the shooter must have been standing on higher level than the victim. It is obvious that the said doctor not being a ballistic expert, made such statement at the behest of the accused to create unnecessary confusion. He seemingly crossed over to the side of the accused, unmindful of his moral and official duty. It was only at the advice of the Orthopaedic Surgeon that x-ray of the thoracic spine of the lady was conducted and while giving the supplementary report dated 8.11.1993 (Ex.Ka-5), this Dr. Jagmal Singh used the word 'strangely' over the revelation of radio opaque shadow found on the dorsal region over T 5-6.
23. We have not the slightest doubt that he (PW 4 Dr. Jagmal Singh) had been approached by the accused and for extraneous consideration, he used this word 'strangely' which was not at all required. Not only this, his report is contradictory with regard to the nature of the injury vide his supplementary report dated 8.11.1993. He mentioned that the injury was caused by some firearm object. He has also mentioned that as the patient was still hospitalised, so the opinion regarding the nature of injury can not be given. Really speaking, these two sentences run counter to each other in view of the fact that radio opaque shadow was seen on the dorsal region over T 5-6 (most vital part of human body) on x-ray being taken of thoracic spine and the bullet stuck in her thoracic region had paralysed her both lower limbs with loss of sensation of muscle power below nipples and loss of control over urinary bladder and bowel. Because of her serious condition she was even taken to Delhi on 15.10.1993. She was readmitted in District Hospital, Moradabad in very serious condition on 21.10.1993. Despite all this, PW 4 Dr. Jagmal Singh gave above supplementary report on 8.11.1993. He closed his eyes to all this reality so as to favour the shooter (accused appellant Vineet Kumar). We quote his supplementary report Ex. Ka-5 to expose that being approached by the accused, he had made up his mind to favour them for extraneous consideration.
" Supplementary report of Smt. Premwati W/o Krishan Sliarma R/o Linopar China Tola, P/s Majhplu, Moradabad. Medico legal exam was done on 13.10.1993 in which injury No. (1) was kept under observation as regards nature and type of weapon used. After x ray of face and neck done on 13.10.1993 vide report No. 3414 from Dr. S.K. Rastogi, Radiologist District Hospital Moradabad no radiopaque shadow was seen.
Patient was admitted and orthopaedic surgeon in charge advised x ray of thoracic spine. On 22.10.1993 x ray was done which strangely revealed a radiopaque shadow elongated over dorsal region over T 5-6.
Hence, the abovementioned injury is caused by some firearm object. As the patient is still hospitalised, so the opinion regarding the nature of injury cannot he given at present."
24. Further, with the said idea in view to favour the accused at the latter's behest, the said Doctor stated in the last sentence of his cross-examination that the shooter must have been standing on the higher level than the victim. 'The level of the ground could not be expected to be given as if measured with measuring tape. Suffice it to say in this regard that the females are generally of lesser height than males. The statement of PW 4 Dr. Jagmal Singh as to the level of the shooter and the victim and the consequent finding of the trial Judge in this behalf is wholly erroneous. On being shot by the accused Vineet from the door of his house, the victim (who had come to close the main door of her house) could very well be hit by the bullet in the jaw which travelled in her body and stuck in the dorsal region in thoracic spine. It cannot be disputed as a fact that a bullet was recovered from the spinal cord of the lady at the time of post mortem.
25. The prosecution could also not be blamed if the lead of the bullet recovered by the Investigating Officer from the spot could not be compared by ballistic expert as being of a bullet fired from the revolver recovered from the house of the accused Vineet. The lead was deformed, lacking the requisite marks for definite opinion. The prosecution was fair enough that the lead of the bullet recovered from the spot was sent for comparison to the ballistic expert. The trial judge was wholly unjustified in taking it to be a factor against the prosecution.
26. As a matter of fact, virtually it is a case of single accused who opened bullets from the revolver from the door of his house, one of which hit the unfortunate lady who had come to close her door and with whose son the accused Vineet had had an altercation over a dish antenna connection a little while ago. There could hardly be any occasion of the lady being hit at the door of her house by some other person and of the false implication of the accused Vineet.
27. It is further to be pointed out that the Investigating Officer found physical evidence at the spot regarding the bullets having been shot by the accused Vineet. A bullet mark was found on the northern leaf of the door of the drawing room of the complainant at point 'A'. Another mark was found at point 'B' which has been described as a shop comprised in the house of the complainant. It would be recalled that it has conic in the testimony of eyewitnesses that when the accused Vineet had started firing bullets from his door, the complainant PW 1 Sri Krishna Sharma had closed the door of his drawing room. His wife (victim) had gone to close the main door when she was hit by one of the bullets being issued by the accused Vineet. The main door of her house was in the north of Baithak of her house in front of which was the house of the accused Vineet (after a gap of 10 paces) wherefrom he had started shooting.
28. It was also wholly immaterial that as per the post mortem report the deceased died of septicemia and toxemia because of bedsores or that she was not properly advised or treated or that there was negligence in her treatment. The basic cause of her death was the bullet injury caused to her by the accused Vineet which resulted in her death. The bullet after hitting her in jaw stuck in the spinal cord causing paralysis in both lower limbs and loss of sensation and muscle power below nipples with loss of control over urinary bladder and bowel. It is of no consequence if because of poverty or lack of resources she could not be properly treated for the injury.
29. Explanation-2 of Section 299 I.P.C. provides that where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused death, although by resorting to proper remedies and skilful treatment the death might have been prevented. There is not the slightest doubt that Vineet accused is guilty of the offence of murder by causing the death of Premwati. He resorted to indiscriminate firing from his door towards the house of the complainant a little while after the altercation with the son of the deceased over a trifling issue of dish antenna connection.
30. Not only this, keeping in view clause '4thly' of Section 300 and illustration (d) of the said Section, the accused Vineet is clearly guilty of the offence of murder. For the sake of clarity, relevant portion of the said Section is reproduced below:
"300. Murder.-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
2ndly...
3rdly...
4thly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
Illustration (d) : A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.
31. The analogy of Clause 4thly of Section 300 I.P.C. read with illustration (d) would apply to the facts of the present case in great deal, because the act of the accused firing bullets from the door of his house was so imminently dangerous that anybody (even a passer-by) could be hit.
32. The matter may be considered yet from another angle. Even if it is taken that the accused Vineet did not intent! to cause the death of Premwati, then also under the facts and circumstances of the case, he is guilty of murder. The reason is supplied by Section 301 I.P.C. which reads as under:
"301. Culpable homicide by causing death of person other than person whose death was intended.- If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide commuted by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.
33. Judged in this view of the matter, it would be immaterial that the accused did not intend to cause the death of Premwati as the dispute a little while before over taking of dish antenna connection had taken place between him and the son of the deceased.
34. Examined from any angle, the accused Vineet is guilty of committing the murder of Premwati. The way he behaved and committed this crime is an insult to the orderly society governed by rule of law,
35. The net conclusion is that the lower court did not analyse the evidence in proper perspective. The acquittal of the accused Vineet is illegal, perverse and on manifestly erroneous assessment: of the evidence. The acquittal of other accused is, however, to be affirmed for the reasons already stated.
36. We place it on record that the learned counsel for the accused has placed reliance on the following rulings:
(i) Willie (William) Slaney v. State of Madhya Pradesh .
(ii) Virsa Singh v. State of Punjab SCR 1958, page 1495.
(iii) Kishore Singh and Anr. v. The State of Madhya Pradesh, 1977 Supreme Court Cases (Cri)656.
(iv) Ganga Dass alias Godha v. State of Haryana 1994 SCC (Cri)592.
(v), B.N. Kavatakar and Anr. v. State of Karnataka 1994 SCC (Cri) 579.
(vi) Dashrath Singh v. State of U.P. 2004 SCC (Cri) 1932.
(vii) State of M.P. v. Surpa 2001 (42) ACC 723.
(viii) Chowa Mandal and Anr. v. State of Bihar (now Jharkhand), 2004 (48) ACC 675.
(ix) Ramu v. State of U.P. 2004 (48) ACC 669.
We have perused the aforesaid rulings and find that they do not help the accused in the facts, evidence and circumstances of the present case.
37. Before parting with the matter, we would like to mention that it is a fit case where PW 4 Dr. Jagmal Singh, posted as Medical Officer at District Hospital Moradabad at the relevant time (13.10.1993 and 8.11.1993) acted against his professional and moral duty under the influence of the accused for extraneous consideration as discusssed in paragraphs No. 20 to 24 of this judgment. It is truly said that even the most shrewd person leaves behind the traces which lead in discovering his misdeed. We shall direct that a copy of this judgment be sent to the Principal Secretary, Medical and Health Services, Government of U.P. Lucknow as well as the Director General, Medical and Health Services, Government of U.P., Lucknow for locating his present posting and to take disciplinary action against him under intimation to this Court.
38. Our final order is as under:
This Government Appeal is partly allowed. The acquittal of Dharamveer is affirmed. The acquittal of the accused Vineet Kumar Chauhan alias Pintu is reversed. He is found guilty of the offence under Section 302 I.P.C. He is convicted accordingly and sentenced to life imprisonment. He is on bail. The Chief Judicial Magistrate, Moradabad shall cause him to be arrested and lodged in jail to serve out the sentence. He shall send the compliance report to this Court within two months from the date of receipt of a copy of this order.
The office is directed to send by registered post within a week from today a copy of this order to the Principal Secretary, Medical and Health Services, Government of U.P. Lucknow as well as to the Director General, Medical and Health Services, Government of U.P., Lucknow for locating the present posting of Dr. Jagmal Singh (who was posted as Medical Officer in District Hospital, Moradabad on 13.10.1993 and 8.11.1993) and to take disciplinary action against him for his misdemeanour as recorded in paragraphs No. 20 to 24 and 37 of this judgment, within two months from the date of receipt of a copy of this order, under intimation to this Court.
Judgment be certified to the court below. The record of the lower court be returned forthwith.