Allahabad High Court
Chheddu vs State Of U.P. on 14 May, 2025
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Neutral Citation No. - 2025:AHC:79714-DB
Court No. - 46
Case :- CRIMINAL APPEAL No. - 1803 of 2016
Appellant :- Chheddu
Respondent :- State of U.P.
Counsel for Appellant :- Ram Lalit Chaudhary,Sakshi Patel,Shadab Ali
Counsel for Respondent :- Govt. Advocate
Hon'ble Rajiv Gupta,J.
Hon'ble Harvir Singh,J.
(Delivered by Hon'ble Harvir Singh, J.)
1. Heard Sri Krishna Kumar, learned Counsel for the appellant and learned AGA for the State.
2. This criminal appeal has been preferred against the judgment and order dated 07.01.2010 passed by Additional District & Sessions Judge, Court No. 8, Fatehpur in Session Trial No. 124 of 1995 (State vs. Chheddu), by which the appellant was convicted and sentenced to undergo life imprisonment under Section 302 I.P.C. with fine of Rs. 5,000/- and in default of payment of fine the accused-appellant shall undergo six months additional rigorous imprisonment.
3. The prosecution story in nutshell is that a written complaint (tehrir) Exhibit Ka-1 was given by the complainant Matabadal in PS-Kishanpur, stating therein that, on 11.11.94, Matabadal s/o Bharosa r/o village Madaiyan was sitting at the door of his house and his son Raj Bahadur @ Bacchu was also sitting at the door. Around 05.00 P.M. resident of the village namely, Cheddu son of Mudwa and Chunni s/o Delwa r/o village Jorabarpur, PS- Kamasin, district- Banda and one unknown person came carrying wooden stick (lathi) and firearm in their hands and asked about the borrowed money from the informant's son. When the informant's son said that, he had given back the money, they started abusing him. Hearing the commotion, residents of the village, Babu s/o Dharampal, Mudela s/o Dharampal and his younger son Vijayshankar and many other people came there. While abusing, all the three of them starting beating him with wooden sticks. When Cheddu tried to assault with lathi, then Babu caught hold of the sticks and in this skirmish, Cheddu made fire from his gun, which hit the son of the informant, as result of which he fell down on the ground. When we challenged the miscreants, they fled away towards east. After sometime the son of the informant died. His dead body is lying at the door. As it was night and there was no means of transport available and also out of fear of the miscreants, the informant could not reach police station in the night.
4. On the basis of the aforesaid written complaint Exhibit Ka-1, Chik No. 68 Crime No. 100/94 u/s 304 and 120 B IPC against accused Chheddu, Munuva and Chunnilal was registered at Police station on 12-11-94 at 7:30 A.M., which is Exhibit as Ka-13. The case was entrusted to Sub Inspector Hariprakash Vishwakarma for investigation. The case, through the report No. 11, was mentioned in General diary on that day itself at 07:30 A.M. The copy of G.D. is available as Exhibit Ka-14. The Panchayanama of the dead body of deceased Bachchoo Kewat was filled by the Investigating Officer on 12.11.94 at 10:30 A.M. Document/Paper related to Panchayanama is available on file as Exhibit Ka-3. The other documents for the postmortem viz. Challan of dead body Exhibit Ka-4, Photo of dead body Exhibit Ka-5, Letter to CMO Exhibit Ka-6, Letter to R.I. Exhibit Ka-7, Sample Seal Exhibit Ka-8 were prepared and the dead body was sent for postmortem by Con. Nanhe Ram and Ram Nath. Dr. A.P. Tripathi conducted the postmortem of dead body. Document related to postmortem is enclosed as Exhibit Ka-2. The Investigating Officer collected the blood stained earth and plain earth from the place of occurrence on 12.11.94 itself and took into the police custody, memos regarding, which are available as Exhibit Ka-9 and Exhibit Ka-10. The Investigatintg Officer inspected the place of occurrence on 14.11.94 and prepared the site plan as Exhibit Ka-11. After the perusal of statements of witnesses, documents related to prosecution and other investigation, I.O. submitted the charge-sheet as Exhibit Ka-12 against the accused persons Chheddu and Chunni Lal in the Court.
5. The learned Magistrate took cognizance of the charge-sheet and finding prima facie evidence of crime against the accused persons, the case was committed to the court of Sessions. Accused Chunni Lal remained absent and his file was separated. Accused Chheddu appeared before the court. Charges under Section 302, 120B IPC were framed against accused Chheddu on 12.9.02 by Additional Sessions Judge, Fast Track Court No. 3. The accused denied the charge and claimed to be tried.
6. In order to prove its case, the prosecution has examined 5 witnesses namely, Matabadal (PW-1), Vijayshankar (PW-2), A.P. Tripathi (PW-3), S.I. Hari Prakash Vishwakarma (PW-4) and Head Constable Yashwant as PW-5 on 10.2.05. The Court, after framing of charge u/s 302 IPC against accused Chheddu summoned the aforesaid witnesses again and all the witnesses appeared before the Court and the said witnesses were cross examined by the learned counsel on behalf of accused.
7. After conclusion of prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C. The accused in his statement u/s 313 has stated that the prosecution story is false and has expressed ignorance regarding the prosecution documents and has stated, that a false charge-sheet has been filed against him. He further stated that he is absolutely innocent and has been falsely implicated in the present case. He also stated in his statement that, despite being given the opportunity, no defence evidence has been presented by the accused.
8. P.W.-1 Matabadal has deposed in his main examination that he knows the accused Chheddu prior to the incident. He is native of his village. The incident took place on 11.11.94 at 5.00 A.M. and at the time of incident, he and his son Raj Bahadur alias Bachchu were sitting at the door of his house, then Chhedua, who is also a resident of his village, Chunni resident of village Jorabar, police station Kamasin, district Banda and an unknown person, whom I did not know, arrived. Chheddu was having a firearm in his hand, Chunni had a stick in his hand and a country made pistol was tucked in his waist and the unknown person had a stick in his hand came there and asked for money, which he borrowed, Matabadal replied that he had already paid him and now no oustanding amount is due. The aforesaid persons abused Matabadal at the door. The fight took place at Basdev's door. Matabadal, his son Vijay Shankar, Babu, Mudela and several other people from the village had gathered. When the accused were beating his son, he grabbed the stick of Chhiddu and then Chhiddu opened fire with his gun, which hit on the left side of neck of his son, he fell down on the ground. After some time, about ten minutes later, his son succumbed to the injury. When we challenged them, the goons ran away towards eastern side. The dead body of his son remained lying there at the door. He could not report to the police station, because it was night and he did not have any means of transport. On the next day i.e. 12.11.94, at 7:15 A.M., he filed a report at Kishanpur police station. He wrote the report (Tehrir) with his own hand and gave it at the police station. Seeing paper No. 3Ka/2 (Tehrir), the witness stated that this is the same complaint, which he himself had written and given at Kishanpur police station. He confirmed his writing on which Exhibit Ka-1 was marked. There was a conspiracy of Bhuluwa alias Ramkishan son of Bhajju of my village in the murder of his son. The sub-inspector took my statement on the same day in Kishanpur police station. He showed the sub-inspector the place of incident, where the fight took place and where his son was killed. After filing the report, when the sub-inspector came to the village and prepared the inquest report (Panchayatnama) of his son, name of the complainant was also there, as one of the witnesses of the inquest report, on which he had signed. When the witness was shown paper number 10Ka/2 inquest report, he verified it by looking at his signature on the inquest report. In his cross examination, PW1 has deposed that the accused-appellant Chheddu, Munuwa and Chunni had shot fired at his son and he has not filed any affidavit in the Court in respect of involvement of Chheddu in the incident. The photograph pasted on the affidavit, is his own photograph, but he has not pasted the same, someone else has pasted it on the affidavit. He also deposed that, it is incorrect to say that he grabed the land of his real brother and due to that reason someone else killed his son due to enmity and the accused-appellant has falsely been implicated by him. He also deposed that it is incorrect that at the time of incident he was not present on spot and it is not true that on the basis of hearsay evidence he is explaining the occurrence. He also deposed that it is also not true that, no such incident had occurred and he reported the matter against the accused persons on the basis of false and fabricated incident to falsely implicate them.
9. PW-2 Bijay Shankar in his main examination has deposed that he knew the accused Chheddu. He is a resident of his village. He also knows the accused Chunni, son of Delwa resident of Jurawar, police station, Kamasin, District Banda. Chunni is absconding. The deceased Raj Bahadur alias Bacchu was his elder brother. The incident took place on 11.11.94 at 5 P.M. and he was present at home. Upon hearing the noise of Raj Bahadur alias Bachchu and his father, he ran towards the door of Jhuluruwa Kewat of the village and saw that Chhidduu, Chunni and one unknown person were at the door of Jhuluruwa. His father Matabadal and deceased Raj Bahadur alias Bachchu were present there and the accused Chheddu was asking for the amount lent to Raj Bahadur. His brother told Chheddu that he had already paid the money, on this Chheddu started abusing his brother. After hearing the cry of his brother, Babu and Mudewa also arrived. Chheddu was carrying a firearm, Chunni was carrying a stick and had a country made pistol tucked in his waist. The third unknown person was also carrying a stick in his hand. At first, the accused Chheddu was hitting his brother with a stick. Chheddu took the stick from the unknown man and started hitting Raj Bahadur. Witness Babu held the stick and stopped Chheddu from hitting him, then Chheddu opened fired, which hit his brother and he fell to the ground. By then, many people from the village had arrived and challenged the accused, then and all three accused persons ran away towards the east. My brother died on the spot, a little while after falling on the ground. His statement was recorded by the police sub-inspector at the time of the incident. In his cross examination the PW2 has deposed that, at the time of incident he was present at home and at the time of scuffle he reached at the place of occurrence and saw the incident. His brother was caught hold by accused Babu and Madela and they also sustained injuries in the incident but they were not examined by the doctor. His father has not received any injury. He also deposed that when he reached at the spot, the accused Chheddu was assaulting his brother with lathi and he also told the I.O. in his statement that his brother was beaten by the accused Chheddu with lathi. He further deposed that the accused Chheddu was having a firearm in his hand and Chunni had a lathi in his hand and a country made pistol was tucked in his waist. He also deposed that his brother has not received any other injury except on the leg and back. The blood was oozing out. The dead body of his brother was lying at the spot. He also deposed that Investigating Officer reached on spot at 11:00 O'clock and at about 5:00 O'clock took the dead body of the deceased and left. He also deposed that I.O. has prepared the site plan on the same day and also recorded the statement of his father, Babu and Mundela. The dead body of the deceased was taken by boat. His father along with 4-5 villagers had gone with the dead body. The dead body of his brother was not brought back to the village. He also deposed that it is not true that he had not seen anyone to commit the murder. He also deposed that it is incorrect to say that his brother might have been murdered in the jungle under some other circumstances and that when the information was received in the morning, a false case might have been filed by falsely naming the accused. He also deposed that it is incorrect to say that no such an incident, as I have stated has took place.
10. PW-3 Dr. A.P. Triparthi has desposed in his examination that on 13.11.94, he was posted on the above mentioned post in District Hospital, Fatehpur. On that day, I conducted the autopsy of the dead body of the deceased Bachchu Kevat, aged about 35 years, s/o Mata Badal, r/o Mudaiyan, PS Kishanpur, District Fatehpur, at 3 pm, who was brought and identified by Nanheram and Chaukidar Ram Lal, PS Kishanpur. He had died about 2 days ago.
11. As per external Examination the doctor found that the deceased was of average height. The rigor mortis had passed away from the upper part of the body and present in the lower part. Stomach was swollen. Mouth was semi open and eyes were open.
12. As per ante-mortem injuries, the doctor found the following injuries:-
1. Firearms entry wound 3 cm x 8 cm left to the neck, below 5 cm from the angle of jaw.
2. Firearms exit wound 4 cm x3 cm right to the neck, below 4 cm from the jaw.
The direction of the above mentioned wounds was from the left to right and slightly oblique upward.
3. Firearms entry wound 2 cm x 1 cm to the left of the neck and left angle of mouth. Blackning was present.
4. Guttar shape abrasion in the middle of front part of neck directing from left to right.
13. As per internal Examination, large pieces were found on the left of the skull. Mandible maxilla was fractured. Brain and brain-membranes were congested. Five round pellets of 5P size were found from the brain. Anterior and middle craninal fossa of skull was fractured. Fourth and fifth bones of spine/neck were fractured. Heart was empty. Teeth were 13/15. about 1/2 liter semi-digested food was in stomach. Gas was in small intestine. Faecal matter and gas were in the big intestine. Gallbladder was semi-filled. Bladder was empty. The death of the deceased was caused due to brain haemorrhage, shocked and ante-mortem injuries. One shirt and vest were found from the body of the deceased, which was given after sealing them to the constable, who came with the dead body. One sealed packet containing wad pieces and 5 pellets was handed over to the constable, who had come there. Post-mortem report was prepared in my hand writing and signature. It is enclosed with the file, which is before me. Exhibit-Ka-2 is marked on it. The deceased is likely to have died at 5:00 P.M. on 11.11.94. All the aforesaid injuries to the deceased could have been caused by fire from a firearm, such as a gun. All the aforesaid injuries could be the result of one fire and all the injuries to the deceased are sufficient to cause death. In his cross-examination, the PW3 has deposed that on 13.11.1994 he was posted in District Hospital, Fatehpur. He further deposed that the entry wounds were present on the dead body of the deceased, but it cannot said that the distance from which these injuries would have caused, it can be explained by the ballistic expert. The death of the deceased would have occurred around two days before the time of conducting the post-mortem. Death is possible to be occurred at 05.00 P.M. of 11.11.94. Rigor-mortis was seen all over the body of the deceased. Half digested food was present in the stomach. The deceased would have eaten the food 5-6 hours before the death. Feces were present in large intestine and gas in the small intestine. Total three wounds of firearm were found. There were five pellet and one bed piece. All the three wounds are possible to be occurred from one fire. A scratch was found in the front middle part of neck. This scratch would have occurred from some blunt object.
14. PW-4, S.I., Hari Prakash Vishwakarma has stated on oath in his examination-in-chief that, on 11.11.94, he was appointed as chowki prabhari (In-charge of outpost) at Police station Kishanpur. On 12.11.94, at 7:30 A.M., this case was registered on the basis of the (tehriri report) written complaint of the complainant in his presence. The investigation was handed over to him and the investigation was started from the same day. After making entry of copy of chik FIR, copy of GD in the C.D., he went to the spot to record the statement of the the complainant Matabadal and having taken the possession of the dead-body of the deceased Bachchu @ Raj Bahadur S/o Matabadal R/o Rangolopur Bhedya, PS- Kishanpur and prepared the inquest in his own hand-writing and under his signature on the spot, which is marked as Exh-Ka-3. He sealed and stamped the dead-body and prepared the documents for conducting post-mortem of the dead-body. He prepared the documents as challan of the dead-body, photo of the dead body, letter to CMO, letter to R.I., & sample seal in his hand-writing and under his signature, which are marked as Ex-Ka-4, Ex-ka-5, Ex-ka-6, Ex-ka-7 & Ex-ka-8 respectively. The dead-body was sealed and stamped in condition and sent for post-mortem along with all the documents through the C/o Nanheram and Ramnath R/o Chandapur. Thereafter, blood soil and plain soil were taken from the spot, kept in separate boxes and sealed with stamp then prepared the memo & documents of them in his hand-writing and signature before the witnesses, which are marked as Exh.ka-9 and Exhibit-Ka-10 respectively. Thereafter, he recorded the statements of the witnesses of panchnama namely, Bachchhraj Karan, Basdev and Rajkishor. On 13.11.94, he made entry of the copy of the panchayatnama into the CD, then summoned the accused, who were not found. On 14.11.94, he recorded the statement of the witness Vijay Shankar at village madaiyan and inspected the spot at the instance of the complainant and prepared the site-map in his hand-writing and under my signature, which is marked as Exh.Ka-11. The statements of the witness of this case Babu Kevat and Muraila were recorded and interrogated other people and recorded their statement as hearsay evidence. On 17.11.1994, the search operation of the accused was carried out but they were not traced out. On 23.11.1994, the accused Chheddu and accused Chunni Lal were arrested and their statements were recorded. On 26.11.1994, the statement of the complainant was recorded again. On 04.12.1994, the autopsy report was received from the police station, which was entered in the CD and statement of scribe of FIR M.M. Yashwant Singh was recorded. On 08.12.1994, the statement of Raj Bahadur Kewat was recorded. After completion of investigation, charge-sheet under section 304 IPC was submitted against the accused Chheddu and Chunni Lal, which is marked as Exh. Ka-12. In his cross-examination he has deposed that when the complainant got the case registered, that time, he was present in the police station. During investigation, he recorded the statements of the complainant, witnesses of inquest, witnesses of memo, witnesses of F.I.R., F.I.R. scriber and the accused persons. He had inspected the place of occurrence, at the instance of complainant of the case. The complainant had met with him at his house and taken him to the place of occurrence. He did not mention the time of starting and completing the investigation in the case diary. He cannot state any reason for it. The complainant had told him that the fire had been opened from the country made pistol of Chheddu. The accused had fired with an intention to kill. It is incorrect to say that he has taken fake action by sitting in the police station and filed fake charge sheet.
15. PW-05 HCP Yashwant Singh has desposed in his examination-in-chief, that on 12.11.94, he was posted as Head Moharrir in PS Kishanpur. On that day, after receiving the written complaint Exh. Ka-01 of Shri Matabadal son of Bharosa, resident of Madaiyan, PS Kishanpur in the police station office, he registered Chik F.I.R. No. 68, Crime No. 100 / 94 under section 304/ 120B IPC against Chheddu and anr. Chik FIR has been enclosed in the file, which is marked as Exh. ka-13. The entry of the case was registered in GD at Report No. 11 on time 7.30 O'clock. He had prepared the carbon copy of GD along with the original in the same process in my handwriting and signature and the same has been enclosed in the file. I certify the same with my signature. Ext. Ka-14 was marked on the same. Original GD has been destroyed after limitation period. All the GD of 1994 have been destroyed as per the rule. General diaries are destroyed after the limitation period of 5 years of case. In his cross-examination, he deposed that on 12.11.94, he was posted as Head Morarrir in PS Kishanpur, District Fatehpur. The complainant himself had handed over a written complaint. The G.D. of 1994 is not present before him in the court at the relevant time. The G.D. has been destroyed. It is incorrect to say, that he got the tahrir written at the police station by dictating it to the complainant.
16. Learned counsel for the accused-appellant submits that, according to first information report, the accused persons have assaulted the deceased with lathi and danda, thereafter accused-appellant Chheddu has fired upon, but as per postmortem report, no injury was found on the person of the deceased, which was caused by lathi and danda. He further submits that neither the incident was preplanned, nor premeditated, but was a result of sudden fight in a heat of passion. There was no intention to kill the deceased. He is absolutely innocent and has been falsely implicated in the present case, due to village factional politics. The incident took place on 11.11.1994 at about 5:00 O'clock in the evening, but the matter was reported to the police after about 15 hours on 12.11.1994 at about 7:30 A.M. in the morning, without any plausible explanation. He further submits that, there are contradictions in the statements of the witnesses as well as informant as such PW-1 has stated that Chheddu was having a firearm in his hand, whereas PW-2 has stated that Chheddu was having stick and was beating the deceased. Hence it was not possible to carry both the lathi and gun in his hand. He further submits that Babu and Mudela have also seen the incident, but they have not been produced before the Court by the prosecution for their evidence. PW-1 Matabadal is the father of the deceased and PW2 Vijay Shankar is the brother of the deceased and they are interested and partisan witness, hence their testimony cannot be accepted as gospel truth. There is no independent witness of the incident.
17. Learned counsel for the appellant has relied upon a judgment of the Hon'ble Supreme Court in the case of Jugut Ram Vs. State of Chhattisgarh passed in Criminal Appeal No. 616 of 2020, wherein it has been held that the assault was not premeditated, but had taken place in a heat of passion over trivial matter. A lathi or a danda is a common item carried by a villager to link his identity. The fact that it is also capable of being used as a weapon of assault, does not make it a weapon of assault simpliciter. He further argued that the findings arrived at by the learned trial court convicting the accused-appellant are not in accordance with law. The learned Additional & Sessions Judge has failed to appreciate the evidence on record, wherein no direct evidence has been found against accused-appellant and there are various contradictions in the statements of the witness. The appellant-accused has no intention to kill the deceased, but it was all of sudden and without any intention or motive, the fire was open from the firearm of the accused-appellant, which hit the deceased and he died. The charges framed by the learned Additional & Sessions Judge under Section 302 I.P.C. is beyond the facts of the case and the manner in which the incident took place. The findings arrived at by the learned trial court, sentencing the accused-appellant for life are based, beyond the evidence and the manner of occurrence. He also argued that a quarrel took place between the accused, his father and the deceased over some money dispute. The assault was not premeditated, but had taken place by chance and the sudden fire was opened from the firearm of the accused, which hit the deceased, but the same was not fired with intention to kill, as the quarrel took place with lathi-danda at the initial stage. If the intention of the accused-appellant was to kill the deceased, then he would not have beaten the deceased with lathi-danda, but the sudden fire was opened from his firearm. Had it been the case, that the accused-appellant has the intention to kill the deceased, he from the very beginning would have come with the firearm and shot the deceased at the very first instance. At the very first instance, some quarrel took place with lathi-danda, therefore, no case, whatsoever has been made out under Section 302 I.P.C. against the accused-appellant. He further argued that the learned trial court got misplaced, while framing of charge under Section 302 I.P.C. and finally convicted the accused, sentencing him for life imprisonment, hence the judgement and order dated 07.01.2010 passed by Additional District & Sessions Judge, Court no. 8, Fatehpur is liable to be quashed and the sentence of life imprisonment is also liable to be set aside.
18. Learned counsel for the accused-appellant further submits that the Hon'ble Supreme Court in certain cases has converted convictions under Section 302 I.P.C. to Section 304 Part I of the I.P.C. This typically happens when the Court finds that while the act resulted in death, it was not a deliberate or premeditated act of murder. Section 302 I.P.C. covers the crime of murder, where the act is intended to cause death or the accused knows that the act is likely to cause death. He further submits that Section 304 Part I I.P.C. deals with culpable homicide not amounting to murder, where the act causing death is done with the intention of causing death or the knowledge that the act is likely to cause death, but without the specific intention to kill. The Hon'ble Apex Court may convert a Section 302 conviction to Section 304 Part I if the Court finds that while the death was caused, there was no clear intent to kill, and the act was perhaps a result of a sudden quarrel or in the heat of the moment. In several cases Hon'ble Apex Court had modified the convictions after reducing conviction from Section 302 I.P.C. to Section 304 Part I and considered the motive of the convict, who had given a single blow with a piece of wood, not with an intent to kill, and was seeking money for funeral expenses. In another case a police station guard who was initially charged under Section 302 I.P.C. but the conviction was converted to 304A because the Court found the act was a result of rashness or negligence, rather than a deliberate act of murder. In a case where the Hon'ble Supreme Court found the act was a result of a sudden quarrel and absence of premeditation, they converted the conviction from Section 302 to Section 304 Part I I.P.C.
19. On the other hand, learned AGA appearing on behalf of the State has submitted that, the prosecution has successfully proved the case against the accused-appellant by cogent and reliable evidence. He has placed implicit reliance upon the testimony of PW-1 Matabadal and PW-2 Vijayshankar, who were present at the time and place of incident and are natural witnesses, the impugned judgement and order does not suffer from any illegality or infirmity and as such the impugned judgment and order calls for no interference at this stage and instant appeal is liable to be dismissed. The sentence of life imprisonment awarding to the accused is based upon the entire evidence and the facts of the case and the same is also supported by the law on the subject. He further submitted that the learned trial court has appreciated the evidence and there is direct evidence against the accused-appellant to be convicted in the case crime. All the witnesses have supported the prosecution case and on the basis of the testimony of the prosecution witnesses, the final judgement and order has been passed against the accused-appellant, whereby sentencing him to life imprisonment and no case whatsoever is made out other than sentence under Section 302 I.P.C. The argument raised by learned counsel for the accused are false and baseless and no interference is being called by this Court against the judgement and order dated 07.01.2010 passed by Additional District & Sessions Judge, Court no. 8, Fatehpur. The appeal is liable to be dismissed.
20. Having regard to the arguments advanced by learned counsel for the accused and learned A.G.A. for the State, it can be seen that learned counsel for the accused-appellant has stated that some quarrel took place between deceased and the accused and initially there was some dispute of money transaction between father of the deceased and the accused and the dispute was not of a such nature, which would have been the main cause of death of the deceased. The father of the deceased at one point of time has stated that no money whatsoever was due upon him and he has cleared all the dues, whatsoever money was taken from the accused-appellant. The one limb of argument as raised by learned counsel for the accused, presuming that the fire, which has caused the death of the deceased, just took place all of sudden, due to sudden quarrel in the heat of passion. The accused-appellant was having no intention to kill the deceased. The only intention of the accused was to recover his money and in the event the father of the deceased would have paid his money to the accused-appellant, no further quarrel would have took place and therefore, it is a case, where fire was shot with the firearm was due to sudden provocation in the heat of passion. The injury which has been inflicted upon the deceased suggests that the same has been caused by firearm. As to the ante mortem injuries, the autopsy report records as below:-
"(i). Firearm entry wound 3 cm x 8 cm left to the neck, below 5 cm from the angle of jaw.
(ii). Firearm exit wound 4 cm x3 cm right to the neck, below 4 cm from the jaw.
(iii). Firearm entry wound 2 cm x 1 cm to the left of the neck and left angle of mouth. Blackening was present."
As per postmortem report the cause of death is hemorrhagic shock as a result of ante mortem injuries.
21. Learned counsel for the accused-appellant has relied upon the judgement of Hon'ble Supreme Court in the case of Devendra Kumar and others vs. State of Chhattisgarh [2024] 11 S.C.R. 523 : 2024 INSC 841. He also relied upon the judgment of Hon'ble Apex Court in the case of Sankath Prasad vs. State of Uttar Pradesh (2020 12 SCC 564, in which the Hon'ble Supreme Court has held that the incident was caused at the spur of moment and it was a fallout of an altercation, the charge under Section 302 I.P.C. was converted to that under Section 304 Part I, I.P.C. Though the facts of the present case are not quite similar to the facts of the present case. However, the law laid down on the subject is helpful to the accused which suggests, that there was some money dispute between the accused and the deceased, that became a cause of quarrel between them and the accused shot fire at the deceased, due to sudden provocation and in the heat of passion, but not with the intention to kill the deceased and there is no material on record to show that there was any premeditation and therefore, taking into consideration all these aspects, the possibility of offence being committed by the appellant without premeditation in a sudden fight in a heat of passion upon a sudden quarrel cannot be ruled out, thus the accused-appellant would be entitled to benefit of doubt and the conviction under Section 302 I.P.C. needs to be altered to the one under Part I of Section 304 I.P.C.
21. The appellant has already undergone a sentence of more than 16 years. We find that the said sentence would sub serve the ends of justice. Therefore, the appellant is sentenced to the period already undergone.
22. The appeal stands partly allowed. The judgment and order of the trial court convicting and sentencing the appellant is set aside.
23. The conviction of the appellant under Section 302 I.P.C. is altered to the one under Part I of Section 304 I.P.C.
24. The appellant be released forthwith, if not wanted in any other case. Bail bonds of the appellant be cancelled and sureties be discharged. The appellant is directed to furnish bail bonds U/s 437A Cr.P.C. within a week from his release.
25. Let a copy of this judgment and order be sent to the court concerned alongwith the trial court record within a week for compliance. The compliance report shall be sent by the court concerned to this Court within a further period of fifteen days.
Order Date : 14.05.2025
Faridul.
(Justice Harvir Singh) (Justice Rajiv Gupta)
