Ram Asrey Singh vs State Of U.P.
2015 Latest Caselaw 1910 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 

 
Reserved
 
(1)Case :- CRIMINAL APPEAL No. - 2999 of 2007
 

 
 Appellant :- Ram Asrey Singh
 
 Respondent :- State Of U.P.
 
 Counsel for Appellant :- Sarvesh
 
 Counsel for Respondent :- Govt. Advocate
 

 
(2)Case :- CRIMINAL APPEAL No. - 3070 of 2007
 

 
Appellant :- Awadhesh Singh & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Kamal Krishna,Braham Singh,D.N.Joshi,Sandeep Kumar,Sunil Kumar,Susheel Kumar Tiwari,Sushil Kumar Dwivedi
 
Counsel for Respondent :- Govt. Advocate
 
And
 
(3)Case :- CRIMINAL APPEAL No. - 3557 of 2007
 

 
Appellant :- Shyam Lal Singh & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sarvesh
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Surendra Vikram Singh Rathore,J.

Hon'ble Raghvendra Kumar,J.

(Per Surendra Vikram Singh Rathore, J.)

1.Learned counsels for the appellants, learned A.G.A. for the State were heard and lower court record was perused.

2.All the three aforementioned criminal appeals arise out of a common judgment, hence the same are being disposed of by jointly.

3.In Criminal Appeal No. 3070 of 2007 appellant Awadesh Singh is in custody continuously from the date of judgment i.e. 24.4.2007 while all other appellants are on bail.

4.Under challenge in these appeals is the judgment and order dated 24.4.2007 passed by learned Additional Sessions Judge, Court No. 3, Fatehpur in Sessions Trial No. 153 of 1998 whereby appellants Awadesh Singh, Shyam Lal Singh, Lal Bahadur Singh, Ram Asrey Singh and also in Sessions Trial No. 283 of 2002 (State of U.P. Vs. Ganesh Singh) wherein appellant Ganesh Singh along with all other appellants was tried. By the impugned judgment, learned trial court convicted all the accused persons, namely, Awadesh Singh, Shyam Lal Singh, Lal Bahadur Singh, Ram Asrey Singh and Ganesh Singh under Section 147 I.P.C. and they were sentenced with imprisonment for a period of one year each. They were further convicted for the offence under Section 148 I.P.C. and were sentenced with rigorous imprisonment for a period of two years each. All the appellants were convicted for the offence under Section 302/149 I.PC. and were sentenced with imprisonment for life and also with fine of Rs. 5,000/- with default stipulation of six months additional imprisonment. All the sentences were directed to run concurrently.

5.In brief, the case of the prosecution was that complainant Indrajeet Singh lodged an F.I.R. at Police Station Dhata, District Fatehpur on 9.11.1997 at 10:50 p.m. alleging therein that at about 8:30 a.m., he, his younger brothers Raj Narayan Singh and Shiv Kumar Singh were sitting at the door of their house. Jagat Patel (deceased of this case), after taking bath, was putting his clothes to dry on the roof of the house. In the meantime, appellant Awadhesh Singh, Ganesh Singh came on a tractor loaded with bricks. The complainant asked not to drop the bricks on the disputed land and asked them not to raise any construction till the dispute is settled. When the complainant came back to his door then Awadesh Singh armed with SBBL gun and Ganesh Singh with SBBL gun started firing on the complainant side. In the meantime, Shyam Lal Singh armed with licensed rifle, Lal Bahadur Singh armed with DBBL gun, Ram Asrey Singh armed with countrymade pistol reached there discharging the shots and exhorted that no one shall escape today. In the meantime, appellant Awadesh Singh went on the roof of his "Baggar" and with an intention to kill, he fired a shot, which hit Jagat Patel on his chest. After receiving the said shot, Jagat Patel cried that he has sustained a gun shot injury. At that time, the niece of the complainant, namely, Manju along with her mother were also present on the roof of the house. The complainant side reached on the roof of their house and found that Jagat Patel was lying dead. Thereafter they brought the dead body down at their door and leaving the dead body under the supervision of other family members, the complainant went to police station to lodge the F.I.R.

6.After registration of the case, investigation proceeded on the same day. The police has taken into its custody the tractor loaded with bricks and its possession was handed over to one Shiv Singh son of Lal Khelawan Singh. Inquest proceedings were conducted and thereafter the dead body along with the papers was sent in a sealed condition for postmortem. The postmortem on the body of the deceased, finally, took place on 11.11.1997 at 2:30 p.m. There is a note in the said postmortem report that postmortem on the said body was scheduled on 10.11.1997 but the doctor found some disparity between the injury written in the police papers and actually found on the body. So the dead body was again sealed. Thereafter for second opinion a letter was sent to C.M.O. For issuing direction for the postmortem by a team of two doctors. Thereafter the postmortem was conducted on the aforesaid date and time by Dr. A.K.Shukla along with Dr. Sharad Mehrotra in the presence of police officer.

7.After completing the investigation, charge sheet was filed against the appellants.

8.The defence of the accused persons was of their false implication because of the enmity. It was also stated that neither there was any intention nor there was any motive of any of the appellants to cause the death of Jagat Patel. It is submitted that Jagat Patel (deceased) was a man of bad character. He, for no purpose and for no reason, was living in the house of the complainant for a long period of six years. He had developed illicit relations with the niece of the complainant. He was also an accused in a murder case. So either the complainant or someone else has murdered him and only because of the enmity, the appellants have been falsely implicated in this case.

9.In order to prove its case, the prosecution has examined PW-1 complainant Indrajeet Singh, PW-2 Raj Narain Singh, PW-3 Manju, as witnesses of fact. PW-4 Dr. Anant Kumar, who has conducted the postmortem of the deceased along with Dr. Sharad Mehrotra. PW-5 S.I. Har Govind Sahu, the second Investigating Officer of this case. PW-6 is S.O. Inspector Singh, Investigating Officer of this case, who has also proved the chik report and G.D. of this case

10.No oral evidence was led on behalf of the appellants in their defence. However, in documentary evidence, a copy of F.I.R. of Case Crime No. 328 of 1996 under Section 302 I.P.C. and charge sheet filed in the said case, have been filed and also one questionnaire that the case under the arms act was pending against the deceased. Apart from it, photostat copy of a licence of appellant Ganesh Singh was also filed to show that the gun alleged to have been used by the appellant Awdhesh was the gun of Ganesh.

11.After appreciating the evidence available on record, the trial court convicted the appellants as above, hence the instant criminal appeals.

12.Submission of learned counsel for the appellants was that in the instant case, there was absolutely no motive for any of the appellants to cause the death of Jagat Patel. Apart from it, the prosecution has utterly failed to prove any relationship of Jagat Patel with the complainant side nor any reason could be furnished for his living in their house for a long period of last six years and that too without any purpose. It has also been submitted that according to the prosecution case, five persons armed with firearms have discharged several shots on the complainant side but not even a single pellets injury was received to any of the three persons, who were sitting in the Verandah of their house nor any sign of any pellets marks on the wall or on the door of the house was found nor any pellets, wad or empty cartridge could be recovered by the police from the place of occurrence. Likewise from the roof, where the deceased Jagat Patel is alleged to have sustained injury, no other pellets could be recovered by the police from the said place. It has further been submitted that according to the site plan, 'B' is the place where from the appellant Awadesh Singh is alleged to have fired and one pellets of the said fire has hit the deceased. The distance between the two places has been shown to be 60 feet and only one small pellets injury was found, which proved fatal. So it cannot, by any stretch of imagination, be said that there was any intention to cause the death of deceased Jagat Patel and there was no reason to believe that the appellant Awadesh Singh intended to cause the death of Jagat Patel. It has further been submitted that even if the entire prosecution case is taken to be true even then it is a case of death by an act, which was absolutely unintentional. In the alternative, it has also been submitted that appellants have been falsely implicated. They had absolutely no motive or reason to cause the death of Jagat Patel. Jagat Patel was a man of criminal antecedent. He had developed illicit relations with the niece of complainant and the circumstance, which emerged in the evidence also gives rise to the inference that at that point of time, he was not having clothes on his body. So the probability cannot be ruled out that he was seen by the complainant side in compromising position with the niece, therefore, his death has been caused. It has further been submitted that the defence taken by the appellants was absolutely probable but the learned trial court has not properly appreciated the evidence which has rendered the impugned judgment unsustainable under law.

13.Learned A.G.A. has submitted that in the instant case, there is direct ocular evidence of the witnesses that all the appellants, in prosecution of their common object, have fired on the complainant side and in the meantime, appellant Awadesh Singh went on the roof and discharged a shot from the roof which hit Jagat Patel and caused his death. So keeping in view the direct evidence of witnesses, learned trial court has not committed any illegality in relying upon the evidence of prosecution witnesses and to convict the appellants. Hence the judgment under question needs no interference.

14.The first point to be considered in the instant case is the F.I.R. In the instant case, the incident is alleged to have taken place on 9.11.1997 at 8:30 a.m. and F.I.R. of this case was lodged on the same day after two hours and twenty minutes of the incident at 10:50 a.m. According to the chik report, the distance from the place of occurrence to the police station was five kilometers. It transpires from the perusal of the F.I.R. that after the incident, the complainant side went on the roof and after finding the Jagat Patel to be dead had brought the dead body on the ground floor and thereafter the complainant went to lodge the F.I.R. along with Shiv Kumar Singh after scribing the written report, on the basis of which the case was registered. Thus in the instant case, there was virtually no delay in lodging the F.I.R.

15.A prompt F.I.R. lends credence to the prosecution case because a prompt F.I.R. eliminates all the chances of cooking up of a false story. Hon'ble the Apex Court in the case of Meharaj Singh v. State of U.P. reported in (1994) 5 SCC 188 while emphasizing the importance of recording a prompt FIR the Supreme Court observed as under:-

"FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses if any. Delay in lodging FIR often result in embellishment, which is a creature of an afterthought. On the account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story."

In Thulia Kali v. State of Tamil Nadu reported in (1972) 3 SCC 393 the Supreme Court observed as under:-

"............ first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused."

Similarly in Kishan Singh through LRs v. Gurpal Singh and others reported in (2010) 8 SCC 775 the Supreme Court held that "Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging FIR does not make the complainant's case improbable when such delay is properly explained."

Hon'ble the Apex court in the case of Nanhe Vs. State of Uttar Pradesh reported in 1973 (3) SCC 317 has held that a prompt F.I.R. eliminates the chances of cooking up of a false story.

16.But on the contrary, it cannot be presumed that when the F.I.R. has been lodged without delay then the evidence of the eyewitness shall be taken to be true on its face value without testing its reliability. Strict scrutiny of the prosecution evidence is also requirement of law. In the instant case, there are two set of accused persons. One; accused Awadhesh Singh is alleged to have fired from the roof and is alleged to have caused the death of Jagat Patel on the roof of the house of the complainant. All the other accused persons, who were also armed with firearms including SBBL gun, DBBL gun, rifle and country made pistol are alleged to have fired on complainant side on the door of their house.

17.Perusal of the evidence shows that 15-16 shots were fired on the complainant side at the place where they were sitting. But it is really strange to note that no one among three persons of the complainant side, who were sitting in their verandah have not received any injury on their body while the appellants are alleged to have exhorted to kill all of them. It is really surprising that inspite of so many fires, not even a single fire mark was found by the Investigating Officer on the wall, door or any other part of the house nor even a single pellet wad or any empty cartridge were recovered from the place of occurrence. Though the witnesses of fact, namely PW-1 Indrajeet Singh, PW-2 Raj Narain have stated that there were several marks of fires on the wall and the door and the plaster of the wall dismantled because of firing and there were several marks of such firing. But the Investigating Officer in his evidence has fairly admitted that not even a single sign of any firing was found on the place where the complainant side was sitting nor any pellet wad or empty cartridges were recovered from the place of occurrence. He has further stated that even on the roof of the house of the complainant, where Jagat Patel is alleged to have received pellets injury, no mark or any sign of firing of any pellets or blood was found by him on the roof of the house of the complainant.

18.In the facts of the instant case, the incident is alleged to have taken place in two parts. In first part, all the accused persons are alleged to have raided at the door of the house where complainant and his brothers were sitting on a cot in the Verandah and opened in-discriminate firing. It has been stated by witnesses PW-1 Indrajeet Singh, PW-2 Raj Narain Singh that the accused persons in that part of the incident have discharged about 15-16 fires. The Investigating Officer has fairly admitted in his evidence that he did not find any sign of such incident at the place of occurrence and he only relied upon the statement of the witnesses of fact and on the basis of the same, he has proceeded further in the matter. There is no dispute to the fact situation that nothing incriminating showing that any firing had taken place on the door of the complainant was found by the Investigating Officer. Though PW-1 Indrajeet Singh and PW-2 Raj Narain, both of them, have stated in their cross examination that because of the firing, the plaster of the wall was broken even the doors were damaged but as stated earlier, no such sign was found at the time of inspection of the place of occurrence by the Investigating Officer. Even during cross examination, no suggestion was given by the prosecuting officer to the Investigating Officer that such signs of firing were present and either because of his negligence or deliberately he has not noted the same. The second part of the incident is that after the commencement of the incident, the appellant Awadesh Singh went on the roof of his Baggar and fired from there which hit Jagat Patel due to which he died instantaneously.

19.Perusal of the postmortem report shows that said pellet injury penetrated the left lung and also the heart of the deceased. About two liters of blood was found in the pleural cavity and one small size pellet was also recovered from the left lung. So such injury was sufficient to cause instantaneous death as the lungs and heart were damaged by the said pellet injury.

20.Learned counsel for the appellants has submitted that there was absolutely no motive or enmity of the appellants with Jagat Patel. So there was absolutely no occasion for them to cause him any injury. It is true that enmity of the appellants, as alleged, was with the complainant side and Jagat Patel, as claimed by the prosecution witnesses, was only his relative. But the prosecution has utterly failed to prove the relationship between Jagat Patel and the complainant or any members of his family. He was living for the last about six years in the house of the complainant without any purpose and without doing any work. Appellants case is that the deceased had developed illicit relation with the niece of the complainant. Apart from it, he was a man of criminal antecedent. He was an accused in Case Crime No. 328 of 1996. Therefore the probability that someone else had killed him at some other place cannot be ruled out. But none of the prosecution witness has admitted any such suggestion of the appellants. Apart from it, the appellants could not produce any witness in their defence on the point that there was any murmuring in the village regarding illicit relationship of Jagat Patel with the niece of the complainant. It is submitted that on such point there cannot be any direct evidence. There is specific allegation of the prosecution that appellant Awadhesh Singh fired from the roof of his Baggar, and the distance as shown by the Investigating officer in the site plan, where the deceased received gunshot injury was 60 feet.

21.Keeping in view such the long distance and the dispersal of the fire, receiving of only one single pellet injury would give rise to the only conclusion that the firing was aimed at some other point and only one pellet because of the dispersal hit Jagat Patel. We agree with the submission of learned counsel for the appellants that prosecution could not produce any evidence to establish that the deceased was in any manner had inimical terms with any of the appellants or his death would have served any purpose for the appellants side. There is no dispute to the fact situation that incident started on the spur of moment when complainant asked them not to start construction on the disputed land.

22.Learned counsel for the appellants has laid great emphasis on the fact that on 10.11.1997, the dead body was opened in the postmortem house but the injuries, in the opinion of the doctor, were not matching, with the injuries as disclosed in the police papers, sent along with the dead body. So the dead body was sealed again and S.O. concerned was informed and C.M.O. was requested to get the postmortem done with a team of two doctors. Submission of learned counsel for the appellants was that there was no injury at the time when the body was opened from the cloth in which it was wrapped but it was only on the next day when the postmortem was conducted by two doctors, the said injury was noted. Apart from it, the S.O. concerned, who was called by the doctor was also not present at the time of the postmortem on the subsequent date. But this submission of learned counsel for the appellants has no legs to stand. The prosecution evidence reflects that the inquest proceedings were conducted by S.I. P.N. Singh and the doctor has stated that S.I. P.N. Singh was present at the time of postmortem and the postmortem report of the deceased also shows that the signature of S.I. P.N. Singh are present, on the said report. So the statement of the S.O. Inspector Singh that he was not present at the time of postmortem does not lend any support to the defence.

23.Perusal of the inquest report shows that it was specifically mentioned in the postmortem that injury was gunshot injury. But in the postmortem report, the size of injury was only 2 mm. diameter. So it was a very small injury. There was no bleeding no blackening, no tattooing. It appears that these facts mislead the doctor to opine that it was not a gunshot injury as mentioned in the inquest. But on the next day, when the team of two doctor conducted the postmortem then they have reported it to be the gun shot injury and one small pellet was also recovered from the left lung of the deceased.

24.Learned counsel for the appellants has also submitted that no blood was found on the place of occurrence nor it was found on the clothes of the deceased and on the basis of the non recovery of the blood from the place of occurrence or from the clothes of the deceased, it is argued that injury might have been caused at some other place and not at the place as alleged by the prosecution. But keeping in view the size of the injury which was so small, (only two mm. in diameter) huge blooding was not possible from such a small injury. Apart from it, postmortem report, also reveals that there was profused internal bleeding as two liters of blood was found in the pleural cavity. The heart and lung were punctured. Apart from it, instantaneous death of the deceased was also a cause of no further external bleeding. So simply because no blood came out of the wound or fell on the place of occurrence would not render any benefit to the appellants in the peculiar facts of the instant case. Hence non recovery of blood from the roof loses all its significance in the aforesaid fact situation.

25.Here it is pertinent to mention that not even a single question was put to the doctor as to what was the difference in the nature of injury, which was found on the body of the deceased on the first day when the body was opened.

26.Perusal of the inquest proceedings shows that in the said inquest report gunshot injury was specifically mentioned and ultimately in the postmortem report, gunshot injury was found. So we simply fail to understand as to why on the first date, when the body was opened for postmortem, what difference was found by the doctor. In the inquest proceedings, it was mentioned in the column of cause of death in inquest report "xksyh dk NjkZ yxus ls". As stated earlier that keeping in view the very small size of the entry wound, which was not having any blackening, tattooing, collar abrasion, the doctor could not convince himself that the same was a pellet injury, but on the next day, when the team of the doctor opened the dead body then the pellet was recovered from the left lung. Thus, submission that on the first day, any injury was not present, has absolutely no substance. It is nowhere the defence of the appellants that such injury was subsequently fabricated, because had it been so then it would have been a postmortem injury and not ante-mortem injury.

27.Learned counsel for the appellants has submitted that because of illicit relations of the deceased with niece of the complainant, he has been murdered and appellants have been falsely implicated due to enmity. It is further submitted that immediate information of the murder was not sent to the parents of the deceased. It is established by the evidence on record that on the very day, when incident took place, immediate effort was made to lodge the F.I.R. and thereafter an information was sent to the village Chaturi i.e. village of the deceased Jagat Patel. It has also come in the evidence of witnesses i.e. PW-1 Indrajeet Singh and PW-2 Raj Narain that in the funeral of the deceased, which took place in their village the family members of the deceased were present. On the basis of this circumstance it is submitted that why the dead body of the deceased was not taken to his native village Chaturi has not been explained. The evidence clearly established that occurrence of this case took place on 9.11.1997 and postmortem on the body of the deceased was conducted on 11.11.1997. Therefore, the funeral might have taken place on 11.11.1997 in the late evening. After postmortem, to keep the dead body and to carry the same to a distance of 25 kilometers to the village of the deceased would not have been found to be feasible by the parents of the deceased. Therefore, if the last rituals were performed at a place where he was residing for a long period of six years would not cast any doubt on the prosecution story. Even otherwise, if the parents of the deceased, who had come to the village had any suspicion in their mind that their son has been murdered by the complainant side then why they would have refrained themselves from lodging the F.I.R. against the complainant side, who were actually responsible for the murder of their son as pleaded by appellants. So the story of illicit relations of Jagat Patel with the niece of the complainant and the suggestion that he has been murdered by the complainant side has absolutely no force. There is no iota of evidence to give rise to any such inference.

28.It has been submitted on behalf of the appellants that PW-1 Indrajeet Singh and PW-2 Raj Narain have stated that deceased died on the spot and thereafter they brought his dead body on the ground floor but PW-3 Manju has stated at one place that Jagat Patel died but subsequently she has stated that he was alive while he was taken down. But virtually these villagers are not medical expert who can certify the death. Apart from it, PW-3 Manju was a lady. So whether the deceased had died immediately or after few minutes and if she could not ascertain it and give different statement on this point then it would not make any difference in the prosecution case nor would make her evidence unreliable.

29.Now it is to be seen as to what offence has been committed. It is an admitted fact that deceased Jagat Patel was the resident of a different village. He was residing in the house of the complainant at the time of the incident he came after taking bath and was putting his clothes to dry while he has received a single pellet injury on his chest which caused his instantaneous death.

30.It has also been submitted that mother of PW-3 Manju was also present on the roof but she has not been examined. But there is no law which require that prosecution is bound to examine all the witnesses. Law gives importance to the quality of evidence rather quantity of evidence. The incident has taken place in the house of the complainant so the inmates of the house are the most natural witnesses who have been examined by the prosecution.

31.It is the case of the prosecution that appellant Awadhesh Singh went on the roof of his "Baggar" and fired from there. The height of the "Baggar" according to the evidence was about 10 feet and there were no stairs to go on the roof but during trial it has come in the evidence that there was some ladder. Submission of learned counsel for the appellants was that no such ladder was shown in the site plan nor same has been taken into custody by the police. So the story that Awadesh Singh went on the roof of his "Baggar" was not reliable. But we are not the least impressed with this argument. In the villages, the houses are not made in such a manner like the wall of the jail so that no person can climb without any external help. There may be some place to put a step and to climb on the roof and even if it is assumed that ladder was not taken into custody by the police then it would be only a defect of the investigation and the same cannot give rise to any adverse inference against the prosecution.What would be the effect of the defective investigation on trial. Can it be treated to be fatal to the prosecution? Effect of defective investigation has been considered by Hon'ble Apex Court in the following cases:-

In the case of Ram Bihari Yadav v. State of Bihar and Ors. reported in AIR 1998 SC 1850, Hon'ble the Apex Court has observed, that if primacy is given to a designed or negligent investigation, or to the omissions or lapses created as a result of a faulty investigation, the faith and confidence of the people would be shaken not only in the law enforcing agency, but also in the administration of justice.

A similar view has been re-iterated by Honble Apex Court in the case of Amar Singh v. Balwinder Singh and Ors. reported in AIR 2003 SC 1164.

Furthermore, in the case of Ram Bali v. State of Uttar Pradesh reported in AIR 2004 SC 2329, it was held by Honble the Apex Court that the court must ensure that the defective investigation purposely carried out by the Investigating Officer, does not affect the credibility of the version of events given by the prosecution.

32.Omissions made on the part of the Investigating Officer, where the prosecution succeeds in proving its case beyond any reasonable doubt by way of adducing evidence, particularly that of eye-witnesses and other witnesses, would not be fatal to the case of the prosecution, for the reason that every discrepancy present in the investigation does not weigh upon the court to the extent that it necessarily results in the acquittal of accused, unless it is proved that the investigation was held in such manner that it is dubbed as "a dishonest or guided investigation", which will exonerate the accused.

33.Reference may also be made to the following pronouncements: Sonali Mukherjee v. Union of India (2010) 15 SCC 25; Mohd. Imran Khan v. State Government (NCT of Delhi) (2011) 10 SCC 192; Sheo Shankar Singh v. State of Jharkhand and Anr. AIR 2011 SC 1403; Gajoo v. State of Uttarakhand (2012) 9 SCC 532; Shyamal Ghosh v. State of West Bengal AIR 2012 SC 3539; and Hiralal Pandey and Ors. v. State of U.P. AIR 2012 SC 2541).

34.Thus, unless lapses made on the part of Investigating authorities are such, so as to cast a reasonable doubt on the case of the prosecution, or seriously prejudice the defence of the accused, the court would not set aside the conviction of the accused merely on the ground of tainted investigation.

35.The Investigating Officer inspected the place of occurrence and has shown placed 'B' wherefrom fire was shot and the distance between the assailants and the victim has been shown to be 60 feet. A shot is alleged to have been discharged from a distance of 60 feet by a SBBL. If appellant had aimed the fire on the deceased then he must have received several pellet injuries. But in the instant case, only one pellet injury was found on the chest and the other pellet just passed touching the skin of non vital part. So what transpires from the evidence, and all the attending circumstances that the fire shot by Awadesh Singh was not with the intention to kill. Had he any intention to kill the deceased then he would have gone on the roof of the complainant's house and would have fired on the deceased from a close range. But firing from such a long distance that too with a cartridge with so small pellets resulting in only one pellet injury on vital part clearly shows that there was virtually no intention to kill. Incident started with the complainant side who were present on the ground floor. Deceased Jagat Patel was not even present at that place and had no concern with the said dispute. So it transpires that from the roof he discharged either a shot in the air or towards the house of the complainant and only because of the dispersal of fire, one pellet injury was received by the deceased on the chest. So keeping in view the peculiar fact situation of this case, it is to be seen as to what offence is made out.

36.Before proceeding further, we would like to discuss law on this point. Now the legal point to be considered is that whether in this fact situation the offence would be under Section 302 IPC or it would be of an offence under Section 304 part II IPC.

37.Hon'ble the Apex Court in the case of Daya Nand Vs. State of Haryana reported in (2008) 15 SCC 717 has considered the difference between murder and culpable homicidal not amounting to murder and has observed in paragraphs no. 24 and 25 as under:-

"24. Thus, according to the rule laid down in Virsa Singh's case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would not be murder. Illustration (c) appended to Section 300 clearly brings out this point.

25. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid."

37. The case of Virsa Singh Vs. State of Punjab reported in AIR 1958 SC 465 draws a distinction between -"Thirdly" of Section 300 and Exception 4 thereunder. The following are the four steps of inquiry involved:- (i) first, whether bodily injury is present; (ii) second, what is the nature of the injury; (iii) third, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended; and (iv) fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature.

38. In the case of State of Andhra Pradesh Vs. Rayavarapu Punnayya and another reported in [1976 (4) SCC 382, it was held that culpable homicide without the special characteristics of murder is culpable homicide not amounting to murder, falling under Section 304 of the Code. It was further held that there are three degrees of culpable homicide. The first is murder under Section 300; second, culpable homicide not amounting to murder falling under the first part of Section 304; and third is culpable homicide not amounting to murder falling under the second part of Section 304.

39. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognizes three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide, which is defined in s. 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the 1st part of s. 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.

40. In the case of Pappu Vs. State of Madhya Pradesh reported in 2006 (7) SCC 391, Hon'ble Apex Court exhaustively dealt with the parameters of Exception 4 to Section 300 of the Code. It was held that the said Exception can be invoked if death is caused (i) without parameters; (ii) in a sudden fight; (iii) without the offender's having taken undue advantage or acting in a cruel or unusual manner; and (iv) the fight must have been with the person killed. It was further held that all the four ingredients must be found in order to apply Exception 4.

41. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. (Emphasis added).

42. In the case of Hari Ram Vs. State of Haryana reported in 1983 (1) SCC 193, the facts were somewhat identical. In that case there was an altercation between the appellant and the deceased. The appellant had remarked that the deceased must be beaten to make him behave. He thereafter ran inside the house, brought out a jeli and thrust it into the chest of the deceased. This Court observed that in the heat of altercation between the deceased on the one hand, and the appellant and his comrades on the other, was preceded by his remark that the deceased must be beaten to make him behave. Therefore, it does not appear that there was any intention to kill the deceased. This Court, therefore, set aside the conviction of the appellant under Section 302 IPC and instead convicted him under Section 304 part II IPC and sentenced him to suffer rigorous imprisonment for five years.

43. In Jagtar Singh Vs. State of Punjab reported in (1983) 2 SCC 342, wherein in a trivial quarrel the appellant wielded a weapon like a knife and landed a blow on the chest of the deceased, Hon'ble the Apex Court observed that the quarrel had taken place on the spur of the moment. There was exchange of abuses. At that time, the appellant gave a blow with a knife which landed on the chest of the deceased and therefore, it was permissible to draw an inference that the appellant could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death but since there was no premeditation, no intention could be imputed to him to cause death. Hon'ble the Apex Court, therefore, convicted the appellant under Section 304 Part II IPC instead of Section 302 IPC and sentenced him to suffer rigorous imprisonment for five years.

44. Keeping in view the the aforesaid legal position and the peculiar facts and circumstances of this case and also adopting a very cautious approach, we are of the considered view that the fire shot by appellant Awadhesh Singh was not fired with the intention to kill Jagat Patel because there was absolutely no reason to kill Jagat Patel. He has shot fire from a distance of about 60 feet and only one pallet was hit on the chest. Incident took place on the spur of moment. It cannot be inferred that any of the appellant had any intention to cause death of Jagat Pal. The diameter of the injury also shows that the cartridge used was having very small pallets which could cause only an injury of 2 ml. diameter. Thus in the peculiar facts of the instant case, in which the shot was fired and the deceased Jagat Patel died, we are of the considered view that offence would not travel beyond the purview of Section 304 II I.P.C.

44. So far as the case of the remaining appellants, namely, Ram Asrey Singh, Ganesh Singh, Shyam Lal Singh and Lal Bahadur Singh is concerned, we are of the considered view that these appellants deserve the benefit of doubt because in spite of the 15-16 fires, as alleged by the prosecution witnesses, on the complainant side neither any pellet injury was received by any of the three persons, who were sitting on the door nor any mark of pellets or damage to the plaster or damage to the windows or door were found during investigation. Though the witnesses of fact have made an effort to show that damage to the plaster and the doors had taken place. But no such damage to the plaster or to the doors was either noted in the site plan at the time of inspecting the place of occurrence nor any such damaged part of the plaster or door was taken into custody by the police nor any memo of such damage was prepared. On the contrary, the Investigating Officer has specifically stated that he could not find any sign of such firing having taken place at the time of spot inspection and he only proceeded further with the investigation only on the basis of the statements of the witnesses. In these circumstances, the case of the remaining appellants namely Ram Asrey Singh, Ganesh Singh, Shyam Lal Singh and Lal Bahadur Singh becomes highly doubtful. Thus appeals preferred by appellants Ram Asrey Singh, Ganesh Singh, Shyam Lal Singh and Lal Bahadur Singh deserves to be allowed. Appeal preferred by appellant Awadhesh Singh deserves to be partly allowed and he may be punished with imprisonment with the period already undergone by him which is more than eight years as the offence committed by him falls within the purview of Section 304 II I.P.C.

45. Thus, Criminal Appeal No. 2999 of 2007 preferred by Ram Asrey Singh, Criminal Appeal No. 3557 of 2007 preferred by appellants Shyam Lal Singh and Lal Bahadur Singh and Criminal Appeal No. 3070 of 2007 so far as it relates to appellant Ganesh Singh are hereby allowed. They are acquitted of the charges levelled against them. They be set at liberty. They are on bail. Their bail bonds are cancelled and sureties discharged. Criminal Appeal No. 3070 of 2007 so far as it relates to appellant Awadhesh Singh deserves to be partly allowed and is hereby partly allowed. The conviction of appellant Awadhesh Singh is hereby altered from Section 302/149 I.P.C. to Section 304-II I.P.C. However, he is acquitted of the charges for the offence under Section 147 and 148 I.P.C. His sentence is modified to the period already undergone by him, which is more than eight years. He is in jail. He shall be released forthwith if not wanted in any other case.

46. Office is directed to communicate this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.

Order Date :- 20 .08.2015 (Raghvendra Kumar, J.) (S.V.S. Rathore, J.)

Virendra