Allahabad High Court

Mahendra Singh @ Chottan vs State Of U.P. on 28 February, 2023

Bench: Ashwani Kumar Mishra, Shiv Shanker Prasad




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 47
 

 
Case :- CRIMINAL APPEAL No. - 1712 of 2013
 

 
Appellant :- Mahendra Singh @ Chottan
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Deepak Dubey,Kartikeya Saran,Om Prakash Dubey,Rajendra Prasad Dubey,Shailendra Singh,Sushil Kumar Dwivedi
 
Counsel for Respondent :- Govt. Advocate,Alok Ranjan Mishra,Arvind Kumar Mishra,Devendra Mishra,Gyan Prakash Mishra,Murtaza Ali
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Shiv Shanker Prasad,J.

1. This criminal appeal is directed against the judgment and order dated 30.3.2013, passed by the learned Additional Sessions Judge, Room No. 6, District Kaushambi in Sessions Trial No. 614 of 2009, State vs. Mahendra Singh @ Chottan arising out of Case Crime No. 232 of 2009, under Sections 302, 404, 411 IPC, Police Station - Pipari, District - Kaushambi and Sessions Trial No. 613 of 2009, State Vs. Mahendra Singh @ Chottan arising out of Case Crime No. 233 of 2009, under Sections 25 Arms Act, Police Station - Pipari, District - Kaushambi; whereby the appellant Mahendra Singh @ Chottan has been convicted under section 302 IPC and sentenced to life imprisonment along with fine of Rs.5,000/- and in default to undergo five months additional imprisonment; for the offence under Section 404 & 411 IPC rigorous imprisonment for three years alongwith fine of Rs. 1,000/- and in default to undergo one month additional imprisonment, each, and for the offence under Section 25 Arms Act rigorous imprisonment for two years along with fine of Rs. 1,000/- and in default to undergo one month additional imprisonment. All the sentences are directed to run concurrently.

2. Prosecution case, in brief, is that the informant's elder brother Rambhawan Singh (deceased) was running a brickkiln and the accused appellant, who was his wife's cousin, used to be with him and all his expenses were borne by the deceased. The deceased had a licensed revolver which he carried with him. On 11.8.2009, the deceased and accused both were at the brick-kiln and as it got late the informant (younger brother of the deceased) alongwith his nephew (son of the deceased) came to call the deceased to have his food at about 9.00 pm and saw that the appellant and deceased were grappling with each other. Suddenly the appellant took the licensed revolver of deceased, lying on the plank, and fired twice on the deceased and fled towards the east while hurling abuses. The deceased died on the spot and the incident was seen by chowkidars who were present at the spot. A written report of the incident was given to police by the first informant (Ext.Ka-1).

3. On the basis of the written report a first information report came to be registered (Ex. Ka. 16) and the investigation proceeded. The Investigating Officer reached the spot and recovered empty cartridge, mobile, watch and also collected bloodstained and plain soil. The inquest also followed. The inquest witnesses were of the view that the deceased died due to gunshot injury caused to the deceased. The dead body was sealed and sent to mortuary for postmortem. The postmortem of the deceased was conducted on 12.8.2009. The autopsy surgeon opined the cause of death to be shock and haemorrhage as a result of following ante-mortem gunshot injury:-

"1. Firearm entry wound at right chest 2 cm lateral to mid of sternum and 12 cm superio-medial to right nipple size of wound 0.75 dia meter x chest cavity deep abraded collar (charing) and inverted margin (edges).

2. Firearm exit wound at right side of back of chest at mid scapular line, 6 cm below lower border of scapula size of wound 1 cm in muscle deep margin averted and bleeding to firearm wound no. (1).

3. Firearm entry wound at left chest 3 cm lateral to mid of sternum and 10 cm superio-medial to left nipple size of wound 0.5 cm dia meter to chest cavity deep abraded collar and inverted edge.

4. One metallic cylindrical bullet (1.3 cm length and 0.7 cm dia meter) recovered from right side of back of chest at mid scapular region 2.5 cm below to lower border of scapula, from muscle deep."

4. The accused was arrested on 12.08.2009 and a revolver of 32 bore with two empty and four live cartridges were recovered from him.

5. Upon conclusion of investigation a charge sheet was submitted against the accused appellant under Sections 302, 404, 411 IPC (Ext.Ka.15) and under Section 25 Arms Act (Ext.Ka.20), respectively, on which the Magistrate took cognizance and committed the case to the court of sessions which got registered as Sessions Trial Nos. 613 and 614 of 2009.

6. Charges were framed against the accused appellant Mahendra Singh @ Chottan under Sections 302, 404, 411 IPC and Section 25 Arms Act. The accused appellant denied the charges and demanded trial.

7. Documentary evidence have been adduced by the prosecution during trial consisting of two FIRs as Ex.Ka. 16 & 21; written report as Ex.Ka.1; recovery memo of bloodstained and plain soil as Ex.Ka. 4; recovery memo of revolver and cartridge as Ex. Ka.6; recovery memo of Mobile and Supurdginama as Ex.Ka.5; postmortem report as Ex.Ka. 2; Vidhi Vigyan Prayogshala Reports as Ex.Ka. 25; Panchayatnama as Ex. Ka. 8; Charge Sheets as Ex. Ka. 15 & 20 and order of District Magistrate as Ex. Ka. 19.

8. The prosecution in order to establish the charges against accused appellant has also produced oral testimony of prosecution witnesses, which are referred to, hereinafter.

9. PW-1 (Shiv Bhawan Singh) is the informant, who has stated that the deceased was his real brother and was living with him in the same village. He was running a brick-kiln. PW-1 knew the accused appellant who is also a resident of the same village. The accused appellant is the cousine of the wife of the deceased and used to be with the deceased. Expenses of accused and his family were being borne by the deceased. The deceased had a licensed revolver, which he used to carry with him. The deceased normally returned home by 8.00 pm. On the date of incident, he had not returned by then. The wife of the deceased tried to call the deceased, on phone, but the call did not materialize. She then asked PW-1 to go to brick-kiln and see as to why the call is not getting through. The telephone went busy thereafter. PW-1 alongwith his nephew Ashish alias Monu PW-2 (son of the deceased) left for brick-kiln to inquire about the deceased on a motorcycle. At around 9.00 pm they reached the brick-kiln and saw that electric bulb was lighted at the brickkiln. The deceased and the accused were grappling with each other. As soon as PW-1 and his nephew came of the motorcycle the accused took the revolver of deceased and fired twice on him. The accused also threatened PW-1 and his nephew. The incident was seen by PW-1 in the light of bulb and the headlight of motorcycle and he could recognize the accused. The accused thereafter fled. This witness has stated categorically that apart from him and his nephew Ashish (PW-2) none else had seen the incident. The deceased died on the spot. There was some monetary dispute on account of which the accused has shot dead the deceased. PW-1 then gave the written report to the Munshi at the police station on the basis of which the FIR was registered. Police recovered two mobile phones and a watch from the spot and gave it in the custody of PW-1. PW-1 has also verified the memo of recovery. The place of occurrence was also got inspected by PW-1 to the Investigating Officer.

In the cross examination PW-1 stated that there was light at the place of occurrence of electric bulb. PW-1 in his cross examination has also stated that the brick-kiln was purchased about four years back by the deceased from someone of Manauri and he does not know the amount for which it was purchased. He has also purchased part of land of brickkiln and some land was taken on lease for extracting soil. He does not know the person from whom the land was taken on lease and all such facts were within the knowledge of the deceased. He has denied the suggestion that the deceased had not paid the lease amount nor was vacating the land on account of which an enmity existed between the deceased and the owner of the land. PW-1 has further stated that on the southern side of the brickkiln there are 8-10 huts in which the labourers reside. He has however not shown these huts to the Investigating Officer. The deceased often stayed there during day time. In response to a query, this witness specifically stated that his brother never stayed at the brickkiln in the night. He has denied knowledge of the name of Munshi working on the brickkiln. There were however two Munshis who used to sell bricks on the instructions of the deceased. The accounting work was also done by these Munshis. The accused used to assist the deceased for the last two years. The accused had no other work except to assist the deceased for which he used to receive Rs.5,000/- per month alongwith other household expenses. This he had heard from the family members. He admitted that the fact about deceased not being able to be contacted on phone as it went busy is not mentioned in the FIR. He has admitted that the fact about him having gone to brickkiln on a motorcycle is also not mentioned in the FIR. He further admitted that in the FIR there is no recital about the accused threatening them of not following or else they too would be killed. This witness has been confronted with his previous statement under Section 161 Cr.P.C. wherein the threatening part is not narrated. He has also been confronted with the contents of FIR wherein it is not mentioned that except him and his nephew none else had seen the incident. The witness did not remember whether he had informed the Investigating Officer about calling his brother on phone stated and that the Investigating Officer never asked him about his telephone number. He also did not remember the phone number of his sister-in-law. It is stated that he alongwith his brother Prem Singh, Ramchandra Singh, Man Singh and Kanchan Singh had gone to the police station. He has shown his ignorance about the date when statement of his nephew was recorded by the Investigating Officer. As per this witness, when he saw his brother first, the accused was grappling with the deceased. He however did not remember the exact duration of the grappling. He also did not remember as to what was worn by the deceased at the time of incident. The deceased always wore pant-shirt. In reply to a question, he has stated that he does not remember whether at the time of incident the deceased was wearing pant-shirt. He also stated that when he reached the place of occurrence the accused fired. Deceased and the accused were both on ground and were not on the plank when they were grappling. He had gone to police station for giving report in Maruti Car. This witness has denied the suggestion that accused was with the deceased for the last 8-10 years and that the FIR was not lodged in the night and that the accused is innocent. He also denied that about Rs. 50,000/- was given towards expenses to the accused per month by the deceased.

10. PW-2 (Ashish Singh @ Monu) is the son of deceased, who has supported the prosecution case. As per him the deceased was running a brick-kiln in village Dhuri and for his assistance he used to keep company of accused appellant. The incident is of 11.09.2009 at about 09.00 in the night. His father used to return by 8.00 pm but on that day he had not returned till 8-9 pm. His uncle (PW-1) asked him to come to brickkiln and see why the deceased has not returned. PW-2 alongwith PW-1 therefore came to brick-kiln to call the deceased for having his meal. On arrival he found that electric bulb was on. In the headlight of motorcycle he saw the deceased grappling with accused and as soon as accused saw PW-1 and PW-2 coming he took the revolver and fired twice and fled while hurling abuses. As per PW-2 his uncle informed the family members on phone whereafter family members arrived and PW-1 left to lodge the report.

The Investigating Officer had recorded his statement. He was also confronted with the fact that in his statement under section 161 Cr.P.C. it was not mentioned that in the headlight of motorcycle he had seen the accused and deceased grappling. He stated that this grappling continued for 5 to 10 seconds and they were at a distance of 10-15 paces. He shouted to stop the grappling and about 2-4 seconds thereafter he heard the gunshot. He has asserted that accused appellant fled and they made no effort to catch him. He then stated that the accused appellant fled towards east alongwith revolver of deceased. PW-2 has also admitted that his father was a businessman who has prestige in the society and he had two licence to run beer and country made liquor and he always carried Rs.10000-20000. The brickkiln was being run for the last 2 to 3 years. His father had no enmity. He also denied the suggestion that on account of close association between the accused and deceased PW-1 and his other uncles were jealous of him. He also denied the suggestion that he had any enmity with the adjoining brick-kiln owners. He also denied the suggestion that his father had not paid lease rent to those from whom he took land on lease due to which there existed enmity. He met the Investigating Officer after ten days where his statement was recorded under Section 161 Cr.P.C. He had not met the Investigating Officer from the date of incident till tenth day.

11. PW-3 (Dharampal) claims to be knowing the deceased, who owned the brickkiln. PW-3 worked for the deceased as Chowkidar at the brick-kiln. As per him the incident is of 09.00 pm. Deceased and accused had returned to the brick-kiln. PW-3 took out the plank and spread bed sheet on it. The deceased and accused started arguing with each other in respect of some money. Light came and PW-1 & PW-2 also arrived. PW-3 alongwith Chunna left towards tubewell after light came and by the time he reached ten paces the accused fired on the deceased. On hearing gunshot PW-3 returned and saw the deceased groaning. PW-2 tried to lift his father but he had died. PW-1 informed of incident in the village and certain persons arrived. His statement was recorded in the morning.

In the cross examination PW-3 has stated that the deceased and accused were very close. Deceased was brother-in-law of accused. They used to return by 8.00 in the evening. They never stayed at the brickkiln nor had their meals there. He had seen the accused and deceased coming in the night. They were not carrying any bag. Deceased and accused both wore trousers and shirt. Shirt of deceased had red stripe and his trouser was white. He had heard gunshot after about half an hour of arrival of deceased and accused. He claims that he had only heard gunshot and had not seen anyone firing. PW-3 in his cross examination has admitted that he had not disclosed the Investigating Officer that accused had left with the revolver. He has admitted that he is still working as watchman at the brick-kiln of deceased and salary was being paid to him by the son of deceased. He has also stated that the police took the dead body of deceased in undergarments and his clothes were taken off and were kept on plank. He has denied the suggestion that he had given wrong statement on the tutoring of owner. He has also denied the suggestion that he was not present on spot and he saw nothing. He has admitted that in his statement to police he did not disclose that the deceased had taken off his clothes.

12. PW-4 (Kanchan Singh) is the witness of recovery of revolver and cartridges from the accused. He is cousin of deceased. He claims that he was present when the inquest was conducted and he is witness to it also. He has proved the inquest. He has further stated that on the second day of incident when he reached Tilhapur Crossing alongwith PW-2 he saw the police jeep. Sub-inspectors and 3-4 constables were present. One person in plain clothes was also present. Sub-inspector informed that the murderer of deceased is likely to come from this way as per informant and that he could be stopped so that his arrest is made in his presence. 10-15 minutes thereafter he saw the accused coming on a motorcycle from Chail and informant stated that he is the same person. When the Sub-inspector stopped the biker he tried to flee by turning the motorcycle but he slipped and Investigating Officer alongwith constables apprehended him. The revolver was recovered from him. On unloading it six cartridges were found, two of them were used and four other were live cartridges. He admitted that he had killed the deceased with this very revolver.

In the cross examination PW-4 admitted that the deceased was his first cousin and they have adjoining houses. He has denied the suggestion that he was in partnership with the deceased for running the liquor business. He claims that he arrived that at about 09.30 pm at the place of occurrence and remained there throughout the night. The police was not present and had arrived next day in the morning at 06.00 am. Only on arrival of police at 06.00 am the paper work was done.

13. PW-5 (Dr. Akhilesh Kumar Singh) is the autopsy surgeon, who has stated that at the time of autopsy there were three wound on the deceased. The first wound was on the right side of chest. Edges were inverted and contained blackening. The second wound was between large bones and was exerted which corresponds to first entry wound. The third wound was a wound of entry on the chest of 0.05 cm and bullet was stuck. In the internal examination PW-5 found 500 gram of food and small and large intestines were half full. In the cross examination the doctor stated that if two average built men grappled with each other there would be possibility of scratches or bluish marks and no such marks on the deceased were found. The food in the stomach was undigested. Process to digest food begins 10-15 minutes after the intake and the food gets digested within 3-4 hours. He has clearly stated that the deceased had died 15-20 minutes after having his meal. The statement of doctor in that regard is extracted hereinafter:-

"इस शव के पेट में मुझे पोस्ट मार्टम के समय बिना पचा हुआ (Undigest) भोजन मिला था। पेट में भोजन आने पर पाचन की प्रक्रिया प्रारम्भ होती है। भोजन की पाचन की क्रिया में जो बदलाव की पहली स्थिति आती है वह भोजन गूदा (PASTE) के रूप में होती है। जो 10-15 मिनट बाद शुरू हो जाती है। तीन चार घंटे तक पेट में रहने के बाद खाली हो जाता है। मृतक की मृत्यु भोजन करने के 15-20 मिनट के अन्दर हो गयी रही होगी। इन दोनो चोटे जो मृतक के शरीर में पायी गयी है से स्पष्ट है कि उसकी मृत्यु तुरन्त हो गयी होगी। "

14. PW-6 (Ran Bahadur Singh) is the Inspector of Police Station Pipari. The case was registered in his presence. He had reached the brickkiln alongwith chik report together with fellow constables. He found large number of persons at the place of occurrence. Since there was lack of proper light as such after protecting the body he recorded the statement of PW-3 and Chunna Chowkidar. The inquest was conducted in the morning whereafter dead body was given to constable Hemant and Dudhnath for postmortem. He has supported the prosecution case with regard to accused having been intercepted at 04.45 pm next day as also the recovery made from him. In the cross examination this witness has stated that he knew the deceased from prior in point of time. He has made first G.D. Entry on 12.08.2009 and he has not mentioned date and time of his arrival. No reasons in that regard could be disclosed. He has clarified that lack of proper light meant that light was not available for conducting inquest. He had not seen any motorcycle. He has admitted that inquest does not mention about existence of gunshot injuries. He admitted that in the site plan he has not shown existence of electric bulb. He has also not mentioned the G.D. Entry in the case diary and has no reason to offer for it. He also admitted regarding non-narration of light of bulb in the case diary. He claims to have learnt about financial transactions being the motive for the crime. He, however, has not made inquiries in that regard nor has checked the accounts of brick-kiln. There is no entry in the case diary about the information received from the informant. He also denied the suggestion that accused was arrested from his house and the recovery was planted. He has admitted that no memo of recovery was prepared with regard to motorcycle and he did not remember whether the possession of motorcycle was taken or not. He admits that prosecution witnesses had not disclosed that they arrived at brickkiln on motorcycle. PW-1 has also not disclosed him that accused threatened him not to follow or else he too would be killed. In the inquest there was no mention of bloodstain on the clothes of deceased.

PW-6 has also been recalled on the prayer of defence and he has admitted that the copy of FIR was sent to court on 17.08.2009. He denied the suggestion that police papers were ante-timed.

15. PW-7 (Abdul Haleem) is the Sub-inspector and was the second Investigating Officer and has made second entry in the case diary. He has also proved the recovery. He has admitted that there are no signatures on the cloth wherein recovered items were kept. Case Crime No.233 of 2009 was mentioned on the cloth. Registration number, colour and make of the motorcycle has not been mentioned nor the motorcycle was recovered. No separate recovery of motorcycle has been made. He claims to be unaware of the fact that PW-4 was a family member. This witness has been cross examined about the manner of recovery and has disclosed as under:-

"जिस समय हम लोगों ने गिरफ्तारी स्थल पर मुल्जिम को आते हुए देखा था उस समय वह बहुत तेजी से मोटर साईकिल चलाते हुए आ रहा था। हम लोगों को देखकर मुल्जिम ने उसी तेज रफ्तार से मोटर साइकिल को मोड़ते हुए भागने की कोशिश की। उसी समय मोटर साइकिल फिसलकर गिर पड़ी। जिस समय हम लोगों ने मुल्जिम को पकड़ा उस समय उसे थोड़ी चोट लगी थी। बड़ी हल्की चोट लगी थी। गिरने से आयी इन चोटों का जिक्र मैनें न तो फर्द में किया है और नहीं सी० डी० में किया है। मैनें अभियुक्त का डाक्टरी मुआइना कराया था। गवाह ने पत्रावली देखकर कहा कि पत्रावली पर ऐसे किसी चोट के किसी डाकटरी मुआइना की अनुरूप नहीं है।"

PW-7 also admitted that he was the Investigating Officer when arrest of accused was made by him. He admits that none of the entries in the case diary are in his own handwriting nor has he specified as to when he took over the investigation of this case. This witness has admitted that he never came to the place of occurrence and has not seen it. He further claims that though he learnt that offence was committed on account of financial transactions but he neither made inquiries in that regard nor checked records of brick-kiln. He also could not offer any reason for delayed examination of PW-2. With regard to delayed dispatch of chik FIR/police papers to court this witness has stated as under:-

"चिक प्रदर्श क-16 मे थाने से अदालत भेजने का दिनांक व समय नही दिया हुआ है। मै इसका कोई कारण नही बता सकता फिर कहा कि सहवन लिखने से रह गया है। मैने बाद में भी अपने इस मुकदमे के विवेचक को यह बात नही बतायी कि अदालत भेजने का दिनांक व समय चिक पर लिखने से सहवन रह गया है। न विवेचक ने पूँछा और न ही मैने बताया। अदालत में यह चिक 17.08.09 को पहुँची है। जिसका इन्द्राज चिक पर ही है। मैं इसका कोई कारण नही बता सकता कि चिक अदालत में इतने विलम्ब से क्यो पहुँची।"

Original G.D. entry of 11.08.2009 and 12.08.2009 has not been produced during trial.

16. PW-8 (Shiv Badan Singh) is the Head Constable, who has proved the chik report.

17. PW9 (Mohd. Shamim) is the Investigating Officer of offence registered under section 25 Arms Act. He has admitted that there is no endorsement in police papers regarding the accused coming on motorcycle and that there are no injuries noted on the accused at the time of arrest/recovery of firearm.

18. PW-10 (Surya Bali Mishra) is the constable who has proved the chik FIR in respect of offence under the Arms Act.

19. On the basis of evidence so led by the prosecution the statement of accused has been recorded under section 313 Cr.P.C. wherein he has stated that false accusations are made against him and the witnesses have made false deposition. He also stated that Investigating officer since was a friend of deceased, therefore, he has falsely implicated the accused.

20. Trial court on the basis of above evidence has concluded that the testimony of PW-1 to PW-3 are reliable and trustworthy. The recovery of firearm from the accused has also been found to be proved. Motive in the form of financial dispute has also been accepted by the court below. It is on the basis of such evidence that the court below has concluded that the prosecution has succeeded in establishing its case beyond reasonable doubt and convicted the accused appellant vide impugned judgment.

21. Learned counsel for the appellants submits that there is no specific motive given in the first information report for committing the murder, rather FIR indicates that deceased was the provider to appellant thereby discarding even the remotest of motive. He further states that PW-1 has specifically deposed that deceased was financing the family and personal expenses of appellant and, therefore, there was hardly any reason for the appellant to kill his provider. It is then argued that PW-2 i.e. son of the deceased has not even made a whisper about motive to commit the offence in his entire testimony and has rather deposed that the appellant was a trusted man of his father. Similarly, PW-3 i.e. Chowkidar and PW-4 i.e. cousin of the deceased have also failed to assign and prove the motive for the offence. PW-3 also deposed that deceased and appellant were close to each other. It is further submitted by the learned counsel that the Investigating Officers i.e. PW-6 and PW-7 have failed to collect any evidence regarding the motive for the offence. The genesis of offence is thus not proved. Learned counsel for the appellant strenuously submits that PW-1 is the real brother of the deceased, PW-2 is the son of the deceased, and PW-3 was the security guard at the brickkiln of the deceased, who are all interested persons, whose testimony cannot be relied upon.

22. Learned counsel for the appellant further submits that in his deposition PW-1 has stated that no one else witnessed the incident except him and PW-2, whereas PW-3 claims to be an eye-witness, hence serious contradiction arises in their deposition. There is no CDR regarding mobile call by PW-1 to his brother Prem Singh. PW-1 admitted during trial about not disclosing the Investigating Officer or stating in the FIR regarding call made to his brother Prem Singh. PW-1 has deposed that despite there being proper light of CFL, he could not see the clothes which deceased was wearing. PW-2 states that he witnessed the incident from 10-15 steps away. Inquest shows deceased was in undergarments thus makes the eye-witness account doubtful. Motorcycle as conveyance was not mentioned in the FIR or in the statement made under Section 161 Cr.P.C. of the informant. PW-1 admits going to police station in car and, therefore, lodgement of FIR after one and half hours, even though the police station was at a distance of four kilometer from the place of occurrence remains unexplained. All these aspects indicate the absence of PW-1 and PW-2 at the place of occurrence. PW-2 does not state about any call being made to contact his father as such there was no reason for PW-1 and PW-2 to reach the brickkiln. He states that the fact that appellant fired as soon as he saw them is too much of coincidence. PW-2 during trial admits not meeting the Investigating Officer for 10 days from the date of incident. The fact that he did not find it necessary to narrate the incident to Investigating Officer on the same night or next morning renders the prosecution case doubtful. Thus there are contradiction between PW-1, PW-2 and PW-3 regarding there being scuffle and fist fight. PW-3 says deceased was wearing pant-shirt while inquest shows otherwise. PW-3 deposed that there was only single shot whereas postmortem report indicates two gunshot wounds. PW-1 during trial does not mention a word about PW-3. Conduct of PW-1, PW-2 and PW-3 is highly unnatural as no blood was found on their clothes and dead body was kept lying on the ground though a cot was present. PW-3 states that deceased and appellant reached brickkiln at 7.30, but as per PW-1 and PW-2 appellant fired gunshot exactly when they reached, which is highly improbable. As per PW-1 and PW-2 the incident occurred at 9 pm whereas PW-3 states that he heard gunshots after half an hour from the time when deceased and appellant reached brickkiln which was at 7.30 pm. PW-3 has tried to justify clothes, not being present on body of deceased, by saying that clothes had been taken off, but no recovery memo of clothes worn by deceased has been prepared. PW-4 cousin of deceased stated that someone informed him about the incident but did not disclose names of PW-1 and PW-3 as persons who informed. No independent witness was produced, even though several huts of labourers were present at the site.

23. Learned counsel for the appellant further submits that postmortem report indicates one wound of exit but no bullet was recovered from the site whereas EB-1 bullet has been recovered from the body of the deceased which did not match as per ballistic report. 500 gm of undigested food was found in the body coupled with the statement of doctor PW-5 that death of Ram Bhawan took place within 15 to 20 minutes of food consumption raises a doubt about the presence of PW-3. Not a single injury, bruise, blue mark etc. was found on the body of the deceased or appellant even though PW-1 and PW-2 deposed about fist fight. Dimensions of gunshot wound were different. EB-1 bullet has not matched with assault weapon, which belies the eye-witness account. PW-3 had deposed about single fire whereas postmortem report shows two gunshot wounds. Learned counsel for the appellant contends that as per prosecution case no medical was conducted of appellant and no injury was found on the body of appellant, even though he had slipped and his motorcycle went for a skid at the time of his arrest/recovery of firearm. It is stated that no prudent man would carry the assault weapon on his person on the next day of crime. There is no recovery/fard of motorcycle belonging to appellant. No independent witness supported arrest and recovery whereas PW-4 is an interested witness being cousin of deceased. No signature of appellant on the arrest and recovery memo was obtained. FIR under Section 25 of Arms Act has been registered on 12.8.2009 at 6.15 pm, whereas PW-7 during trial has deposed about mentioning the crime number on the sealed bundle prepared regarding recovery of assault weapon on 12.8.2009 at 4.45 pm. Recovery was planted as bullet EB-1 has not matched with the assault weapon allegedly recovered from the possession of appellant. PW-9 stated that SHO i.e. PW-7 of his police station was present at the police station the entire day. Difference in numbers of live and discharge cartridge found in the sealed bundle belies the recovery. There was inordinate delay in sending the chik FIR to court, even though the offence was of heinous nature and during the entire course of trial no documentary evidence relating to existence of police papers is shown to exist that the investigation of the present case has been started on 11.8.2009, which creates a serious doubt on the prosecution case.

24. Learned A.G.A. on behalf of the State and Sri G.S. Chaturvedi, learned Senior Counsel for the informant states that the judgment of conviction and sentence passed by the court below is based on correct appreciation of evidence placed on record by the prosecution in the matter and, therefore, appeal lacks merit. It is also submitted that the arguments raised on behalf of the appellant are not sufficient to create any doubt on the prosecution case, particularly as the testimony of PW-1 and PW-2 are wholly reliable. It is argued that the recovery of revolver clearly connects the accused with the commissioning of offence. Sri Chaturvedi submits that though the bullet recovered from the body of the deceased lacks individual characteristic but that by itself would not be a ground to doubt either recovery or the fact that the accused had fired on the deceased. It is also urged that it being a case of direct evidence no further evidence in respect of motive was required to be led by the prosecution. It is contended that the accused appellant has rightly been convicted and, therefore, no interference is warranted in this appeal.

25. We have heard learned counsels for the parties and perused the material brought on record.

26. In the facts of the presence case the prosecution alleges that the there was a dispute between the accused appellant and the deceased in respect of some financial transactions which was the motive for the murder of deceased. It is further alleged that the incident has been seen by PW-1 and PW-3 in the light of bulb and headlight of motorcycle by the prosecution witnesses. It is also the case of prosecution that the deceased after committing offence fled with the licensed revolver of the deceased which has been recovered from him the very next day. As per the prosecution it was the accused appellant who has shot dead the deceased.

27. The prosecution has proved the inquest and the postmortem report, as per which the deceased died due to shock and haemorrhage as a result of ante-mortem firearm injury. There are two wounds of entry and one wound of exit. There is no corresponding wound of exit to the other wound of entry and one metallic cylindrical bullet has been recovered from right side of back of chest at mid scapular region 2.5 cm below lower border of scapula from muscle deep. The size of the cylindrical bullet is 1.3 cm with radious of 0.7 cm. The deceased was around 46 years of age. The postmortem has been conducted at 1.00 pm on 12.8.2009 and the time of death is about 3/4 day. The deceased had an average built. From a perusal of the panchayatnama and the postmortem report it is clear that deceased has died a homicidal death due to gunshot injury.

28. The evidence led by prosecution in the present case is to the effect that the deceased was running a brick-kiln for the last several years and accused appellant was assisting him. The accused appellant is otherwise cousin of the wife of the deceased. The prosecution witnesses have clearly admitted that relations between the deceased and the accused appellant were very cordial. The accused appellant used to be with the deceased. PW-1 and PW-2 in their testimony have admitted that all expenses of accused appellant were being borne by the deceased. Even the expenses for the family of the accused appellant were being provided by the deceased. It is, therefore, apparent from the evidence brought on record that the accused appellant and the deceased were very close and there was no apparent reason of any discord between them.

29. The genesis of incident as per prosecution is some financial dispute between the deceased and the accused appellant. PW-1 in his testimony has stated that there was some monetary dispute between the accused appellant and the deceased. However, what exactly was the nature of dispute between them is not disclosed. Neither PW-1 nor PW-2 have stated anything about the alleged financial dispute between them. PW-3 has also admitted that relations between the deceased and the accused appellant were very good. PW-7, who is the Investigating Officer, has admitted that though he learnt that offence was committed on account of financial transactions, but he neither made inquiries in that regard, nor checked records of brick-kiln. The prosecution case of existence of monetary dispute between deceased and accused appellant as being the motive for the offence thus remains unsubstantiated. However, absence of motive would not be fatal to the prosecution case where there exists direct evidence of the incidence in the form of ocular testimony of eye-witnesses, if their testimony is found credible and reliable. In Bikau Pandey v. State of Bihar, (2003) 12 SCC 616 it has been held that when the direct evidence establishes the crime, motive is of no significance and pales into insignificance. In Anil Rai v. State of Bihar, (2001) 7 SCC 318 it has been held that enmity is a double edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. There are catena of decisions on the point that in a case based upon the eye witness account, the motive loses its significance. In Deepak Verma v. State of Himachal Pradesh, (2011) 10 SCC 129, the Supreme Court has held as under:

"...Proof of motive is not a sine qua non before a person can be held guilty of commission of crime. Motive being a matter of mind, is more often than not difficult to establish through evidence."

30. In Thaman Kumar Vs. Union Territory of Chandigarh, 2003 (6) SCC 380, the Supreme Court observed that there is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. The court observed as under in para 18:-

"............There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved. In State of H.P. v. Jeet Singh [(1999) 4 SCC 370 : 1999 SCC (Cri) 539] it was held that no doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no offence was committed if the prosecution failed to prove the precise motive of the accused to commit it, as it is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. In Nathuni Yadav v. State of Bihar [(1998) 9 SCC 238 : 1998 SCC (Cri) 992] it was held that motive for doing a criminal act is generally a difficult area for prosecution as one cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act and such impelling cause need not necessarily be proportionately grave to do grave crimes. It was further held that many a murder have been committed without any known or prominent motive and it is quite possible that the aforesaid impelling factor would remain undiscoverable. In our opinion, in the facts and circumstances of the case, the absence of any evidence on the point of motive cannot have any such impact so as to discard the other reliable evidence available on record which unerringly establishes the guilt of the accused."

31. So far as the testimony of PW-1 and PW-2 regarding their visit to brick-kiln is concerned, we do not find any substance in the argument of Sri Kakkar to doubt their presence at the time of incident. Though it is argued that the prosecution has not furnished details regarding making of phone calls by the wife of the deceased or the deceased not being able to be contacted on phone, but these are minor issues, which do not seriously challenge the prosecution case. The prosecution witnesses have categorically stated that the deceased used to return by 8.00 in the night and on that day he had not returned by then. On the asking of the wife of the deceased, deceased's brother (PW-1) and son (PW-2) arrived at the brick-kiln. Their act in coming to the brick-kiln cannot be said to be unnatural. It is quite reasonable to expect that the family members would be concerned when a member of family does not return home by his normal time of return. The anxiety on part of the wife of deceased to contact her husband, in such circumstances, is also natural and expected. The lack of evidence regarding making of phone calls to the deceased or the evidence of such calls not getting through etc. cannot render the ocular testimony of witnesses any less credible or doubtful when such testimony otherwise sounds natural and reliable. The anxiety on part of the wife of the deceased and her conduct in asking PW-1 to visit the brick-kiln would be justified even if the version of making the phone call or its not getting through was not there, at all. We are, therefore, not impressed by the argument that lack of call detail record in respect of calls allegedly made to the deceased, by his wife, would in any manner discredit the ocular testimony of PW-1. We, therefore, do not find any substance in the argument of the appellant's counsel that the prosecution version with regard to visit of PW-1 and PW-2 is either unnatural or is unreliable.

32. Similarly, the fact that mode of transport for coming to brick-kiln was not specified in FIR is also not material. It is rather natural to expect that the visit to brick-kiln at about 9.00 pm would be by some mode of transport which can easily be a motorcycle if two persons are to travel. Availability of motorcycle with PW-1 is otherwise not questioned. Non disclosure of such fact in the FIR cannot be viewed with any seriousness as the FIR is not supposed to be an encyclopedia of entire facts of the incident.

33. We also find substance in the prosecution version that PW-1 and PW-2 on their arrival at the brick-kiln saw the accused and the deceased grappling with each other and soon thereafter the accused appellant fired on the deceased. The existence of bulb at the brick-kiln is clearly stated by the prosecution witnesses. Merely because its existence is not shown in the site plan is a minor deficiency in the investigation, for which no benefit would accrue to the defence. The accused is otherwise known to the prosecution witnesses PW-1 and PW-2 and their recognizing the accused in the light of electric bulb would not pose any major difficulty.

34. The testimony of PW-1 and PW-2 is specific that on arrival at the brick-kiln they saw the accused and the deceased grappling with each other and soon thereafter the accused appellant fired two shots on the deceased due to which he died. This part of ocular testimony of prosecution witnesses PW-1 and PW-2 finds corroboration from the postmortem report which shows existence of two gunshot injuries on the deceased.

35. So far as testimony of prosecution witnesses PW-1 and PW-2 being unreliable on account of their being interested witness is concerned, we find that PW-1 is the brother of the deceased while PW-2 is deceased's son. They are thus related witnesses. These witnesses are not shown to be inimical to the accused nor any evidence exists to show that these witnesses had any reasons to falsely implicated the accused appellant. Law is otherwise settled that testimony of a related witness cannot be questioned only on the ground of witnesses relationship with the deceased. In Rupinder Singh Sandhu v. State of Punjab, (2018) 16 SCC 475, the Supreme Court observed as under in para 50:

"50. The fact that PWs 3 and 4 are related to the deceased Gurnam Singh is not in dispute. The existence of such relationship by itself does not render the evidence of PWs 3 and 4 untrustworthy. This Court has repeatedly held so and also held that the related witnesses are less likely to implicate innocent persons exonerating the real culprits. [ See Rizan v. State of Chhattisgarh, (2003) 2 SCC 661, p. 667, para 6 : 2003 SCC (Cri) 664"6. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. In Dalip Singh v. State of Punjab, AIR 1953 SC 364, p. 366, para 26, the Court held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."

36. On behalf of the appellant reliance is placed upon a recent judgment of the Supreme Court in Md. Jabbar Ali and others Vs. The State of Assam, 2022 SCC OnLine SC 1440, wherein the Court has examined the law relating to admissibility of the testimony of a related witness and held that merely because the witnesses are related/interested or partisan their testimony cannot be disregarded. However, their testimony will have to be scrutinized with greater care and circumspection.

37. In the facts of the present case the defence has not laid any foundation for false implication of accused appellant nor any enmity is shown to exist between them and therefore the testimony of PW-1 and PW-2 cannot be discounted only because they are related witnesses.

38. It is next urged by Sri Kakkar that postmortem report shows existence of 500 gms of undigested food in the stomach of the deceased which is not explained by the prosecution. Rather, the prosecution witnesses state that the deceased was yet to have his meal and thereby belie the prosecution story.

39. The existence of 500 gms of undigested food in the stomach of the deceased merely shows that the deceased had eaten something sometime back. The possibility of deceased having gone out or eaten something cannot be ruled out. PW-3 in fact has stated that deceased alongwith accused appellant had returned to the brick-kiln about half an hour back. Thus the mere fact that prosecution has not explained the factum of deceased having eaten something would not cause a dent in the prosecution case.

40. An argument is also raised by the defence to impeach the testimony of PW-2 on the ground that his statement under Section 161 Cr.P.C. was recorded after ten days of the incident. The age of PW-2 when his testimony was recorded on 6.11.2011 was 18 years. He must have been around 15-16 years of age at the time of incident. It must have been a traumatic experience to see a horrific incident wherein his father was shot dead. As a young impressionable mind it must have been difficult for this witness to have gained his self confidence. The delay of about 10 days in recording his testimony, therefore, cannot be frowned upon. We otherwise find that FIR itself contains narration of the fact that PW-2 had gone with the informant to the brick-kiln. In such circumstances, the delayed recording of statement of PW-2 cannot be a circumstance to doubt the prosecution case.

41. The next argument of Sri Kakkar that prosecution version is not reliable since no bruises were found on the deceased notwithstanding the prosecution version of grappling between the deceased and accused is also noticed only to be rejected. The prosecution witnesses have stated that on their arrival at the brick-kiln they saw the accused and deceased grappling with each other. This grappling continued for a short while i.e. few seconds as per PW-2. It is not necessary that bruise marks would necessarily appear in such a case, particularly as no physical assault is alleged by some blunt object, etc. Absence of bruise marks on the body of deceased would also not create a dent in the prosecution case.

42. During the course of argument an issue was also raised regarding the two gunshot injuries having been caused by a single firearm. The issue had arisen as one of the gunshot wound of entry had a size of .75 cm while the other had a size of .5 cm. Elaborate arguments were made by Sri Gaurav Kakkar for the appellant and Sri G.S. Chaturvedi, learned Senior Counsel for the informant and Mrs. Archana Singh, learned AGA for the State. The intricacies of ballistics were highlighted with reference to various authorities on the subject. These aspects, however, are not being delineated as Sri Kakkar himself admitted that this was not a substantial argument in the facts of the present case. The argument having not been pressed ultimately on behalf of the appellant it need not be examined any further.

43. So far as testimony of PW-3 is concerned, his presence and witnessing the incident appears to be doubtful. PW-1 in his testimony has not referred to the presence of PW-3 at the time of incident. PW-1 has specifically stated that only PW-2 was present alongwith him at the spot at the time of incident. PW-3 otherwise has stated that he moved towards the tube-well after the electricity was resumed and on hearing the gunshot he returned to the place of occurrence. Thus PW-3 has in a way admitted to not seeing the incident. This witness appears to have arrived later, on hearing the gunshot. His testimony is otherwise doubtful, inasmuch as, he refers to a single gunshot injury being caused to the deceased whereas the postmortem report shows its existence of two gunshot injuries. The testimony of PW-3, therefore, is not found credible.

44. Notwithstanding it, the prosecution case is liable to be accepted with regard to the manner in which the incident occurred, and the role of accused appellant as being the author of two gunshot injuries, on the deceased, on the basis of oral testimony of PW-1 and PW-2 which are found credible and reliable.

45. On the basis of evidence led in the matter we are, therefore, persuaded to accept the prosecution case that the deceased was done to death by the accused appellant and the incident has been seen by PW-1 and PW-2.

46. So far as the challenge laid to the recovery of firearm from the accused appellant vide recovery memo dated 12.08.2009 is concerned, it is worth noticing that PW- 1 and PW-2 have specifically stated in their testimony that after firing on the deceased from the licensed revolver the accused appellant had run away with the licensed revolver of the deceased. The revolver has been recovered from the accused appellant vide recovery memo. This recovery memo is proved by PW-4 and the Investigating Officer. Although, it is alleged on behalf of the appellant that this recovery is not reliable since PW-4 is a related witness of the deceased and the prosecution version about the manner in which the accused was intercepted is not credible, but, we are not inclined to accept such contention. Firstly, we find that the recovered revolver has been sent for examination by the forensic laboratory and the empty cartridges recovered from the accused appellant have matched with the recovered licensed revolver of deceased. On account of the lack of individual characteristics no definite opinion has been expressed in the report of forensic laboratory regarding the empty bullet (EB-1) but that itself would not be of much significance. It remains undisputed that the licensed revolver recovered from the accused belong to the deceased and all the prosecution witnesses have specifically alleged that they saw the accused appellant running away with the licensed revolver of the deceased after committing the offence. In such circumstances, the recovery of firearm cannot be effectively assailed. The conviction and sentence of accused appellant under Section 25 of the Arms Act is thus sustained.

47. Though it is not argued on behalf of the appellant, yet, we find another aspect of the incident emerging on record. The evidence on record at best shows that there was a sudden fight between the accused and the deceased and soon thereafter the accused appellant took the revolver of the deceased, lying on the plank, and fired on him. The incident may have occurred at the spur of moment, without any premeditation and, therefore, we are required to consider whether the accused appellant need be convicted under Section 302 IPC or under Section 304 Part-I as there was no intention to commit the murder of the deceased.

48. We have already noticed that the alleged motive for the crime has not been substantiated by the prosecution. Except for the bald assertion that there was some financial dispute, the prosecution has not been able to demonstrate any enmity between the deceased and the accused appellant. Rather, the evidence clearly shows that relations between deceased and the accused appellant were extremely cordial and for all practical purposes it was the deceased who was the provider for the accused appellant and his family.

49. PW-1 and PW-2 have stated that on their arrival at the brick-kiln they saw the deceased and the accused appellant grappling with each other. The reason for this grappling is not known. From the evidence on record it can only be inferred that there was some immediate cause of discord between accused appellant and the deceased which resulted in a scuffle/grappling. The licensed revolver of the deceased was lying just next to them on the plank. It is in the sudden rush of moment that the accused appellant got hold of the licensed revolver of the deceased and fired on him.

50. There was neither any premeditation nor any existing enmity and the incident occurred in a sudden fight. The accused appellant has not taken any undue advantage or acted in a cruel or unusual manner. In such circumstances, we find that the incident occurred at the spur of the moment and would fall within the ambit of fourth exception to Section 300 IPC.

51. The fourth exception to section 300 IPC, reads as under:-

"Exception 4. --Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."

52. We may at this stage refer to the judgment of the Supreme Court in State of Uttarakhand v. Sachendra Singh Rawat, (2022) 4 SCC 227 wherein the Court examined Exception 4 to Section 300 IPC and observed as under:-

"8. In Virsa Singh [Virsa Singh v. State of Punjab, AIR 1958 SC 465 : 1958 Cri LJ 818] , in paras 16 and 17, it was observed and held as under : (AIR p. 468)

"16. ... The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.

17. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact;...."(emphasis supplied)

9. In Dhirajbhai Gorakhbhai Nayak [Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, (2003) 9 SCC 322 : 2003 SCC (Cri) 1809] , on applicability of Exception 4 to Section 300 IPC, it was observed and held in para 11 as under : (SCC pp. 327-28)

"11. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution (sic provocation) not covered by the first exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused : (a) without premeditation, (b) in a sudden fight, (c) without the offenders 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 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 had 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 a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage"."

10. In Pulicherla Nagaraju [Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500] , this Court had an occasion to consider the case of culpable homicide not amounting to murder and the intention to cause death. It was observed and held by this Court that the intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances:

(i) nature of the weapon used;

(ii) whether the weapon was carried by the accused or was picked up from the spot;

(iii) whether the blow is aimed at a vital part of the body;

(iv) the amount of force employed in causing injury;

(v) whether the act was in the course of sudden quarrel or sudden fight or free-for-all fight;

(vi) whether the incident occurs by chance or whether there was any premeditation;

(vii) whether there was any prior enmity or whether the deceased was a stranger;

(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;

(ix) whether it was in the heat of passion;

(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;

(xi) whether the accused dealt a single blow or several blows."

53. Necessary ingredients to attract 4th Exception to section 300 IPC are found to be present in the facts of the present case inasmuch as death is caused; there existed no pre-meditation; it was a sudden fight; the offender has not taken undue advantage or acted in a cruel or unusual manner. The case in hand thus clearly falls under fourth exception to section 300 IPC.

54. Once that be so we find that the offence on part of the accused appellant would amount to commissioning of an offence under section 304 Part I IPC and not under section 302 IPC. The finding of the court below, to the contrary, cannot be sustained in view of the evidence on record and stands substituted as per above. The trial court has not examined the evidence on record, in correct perspective, for the purposes of determining the nature of offence committed by the accused. There is no consideration in the judgment of the court below with regard to the applicability of 4th Exception to Section 300 IPC and consequential conviction of accused under Section 304 Part-I of the IPC. In view of our deliberations held on the issue, we modify the judgment and order of the court below and convert the sentence awarded to the accused appellant under Section 304 Part-I IPC in place of Section 302 IPC. The fine imposed of Rs. 5,000/- is, however, sustained, with the default imprisonment of five months. The conviction and sentence of accused appellant under Section 404/411 IPC and 25 Arms Act is also upheld.

55. In view of our deliberations and discussions held in the matter, the criminal appeal no. 1712 of 2013 succeeds and is allowed in part. The conviction of the accused appellant under Section 302 IPC is substituted with conviction under Section 304 Part-I IPC and the accused appellant is sentenced to 10 years of rigorous imprisonment with fine of Rs. 5,000/- and to undergo six months default sentence. The conviction and sentence under Section 404/411 IPC and Section 25 of the Arms Act is also maintained. However, as the accused appellant has remained in Jail for a period of more than 15 years together with remission, which is more than the sentence awarded under this judgment together with default period, as such, the appellant is directed to be released on the period of sentence already undergone by him. He shall be released from Jail, forthwith, unless he is wanted in any other case subject to compliance of Section 437A Cr.P.C.