Subhash And Anr vs State
2024 Latest Caselaw 1 Raj

Rajasthan High Court - Jodhpur

Subhash And Anr vs State on 2 January, 2024

Author: Vijay Bishnoi

Bench: Vijay Bishnoi

[2023:RJ-JD:43388-DB]

       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR
                  D.B. Criminal Appeal No. 807/2016
1. Subhash Khichad son of late Mahendra Singh, by caste Jat,
     resident    of     Salemgarh          Police      Station,     Tibbi,   District
     Hanumangarh.
2. Ankush son of Shri Rai Singh, by caste Jat, resident of Ward
     No.5, Tibbi, District Hanumangarh.
     (Lodged in District Jail, Hanumangarh)
                                                                     ----Appellants
                                       Versus
The State of Rajasthan
                                                                    ----Respondent


For Appellant(s)             :     Mr. J. S. Choudhary, Sr. Advocate
                                   assisted by Mr. Pradeep Choudhary
                                   and Ms. Sampati Choudhary
For Respondent(s)            :     Mr. R. R. Chhaparwal, PP

For Complainant(s)           :     Mr. Rajendra Charan


             HON'BLE MR. JUSTICE VIJAY BISHNOI

HON'BLE MR. JUSTICE MUNNURI LAXMAN Judgment

02/01/2024 By the Court (Per Hon'ble Vijay Bishnoi, J)

1. The instant criminal appeal has been preferred on behalf of

the appellants being aggrieved with the judgment dated

26.08.2016 passed by the Additional Sessions Judge, No.2

Hanumangarh in Sessions Case No.01/2014, whereby it has

convicted the appellant No.1 - Subhash for the offences

under Sections 302, 201 IPC and Section 3/25, 7/27 (2) of

the Arms Act, 1959 (hereinafter to be referred as 'the Arms

Act') and convicted appellant No.2 - Ankush under Section

302/34 and 201 IPC. The trial court has sentenced both the

appellants as under :-

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Appellant - Subhash

Under Section Sentenced to Fine of Rs. In default of 302 IPC undergo Life 10,000/- payment of fine imprisonment further to undergo 6 months' SI Under Section Sentenced to Fine of Rs. In default of 201 IPC undergo 3 5000/- payment of fine years' SI further to undergo 3 months' SI Under Section Sentenced to Fine of Rs. In default of 3/25 Arms undergo 1 1000 payment of fine Act year's SI further to undergo 1 month's SI Under Section Sentenced to Fine of Rs. In default of 7/27 (2) undergo 7 5000 payment of fine Arms Act years' SI further to undergo 3 months' SI

Appellant - Ankush

Under Section Sentenced to Fine of Rs. In default of 302/34 IPC undergo Life 10,000/- payment of fine imprisonment further to undergo 6 months' SI Under Section Sentenced to Fine of Rs. In default of 201 IPC undergo 3 5000 payment of fine years' SI further to undergo 3 months' SI

2. All the sentences of both the appellants were ordered to run

concurrently.

3. Brief facts, necessary for adjudication of the present criminal

appeal, are that on 24.04.2014, Ram Pratap (P.W.-5)

submitted a written report (Ex. P-12) to S.H.O., P.S. Tibbi at

10.15 PM, wherein it was stated that today at about 2.30

PM, Om Khichad son of Luna Ram resident of Salemgarh, his

brother Krishan resident of Ellenabad, Subhash son of

Mahendra, Rai Singh son of Maniram and Ankush son of Rai

Singh came to his house for settling the dispute between

Krishan, Subhash and Om Khichad regarding partition of

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house and shop, however, after some time, heated

discussion took place between Krishan, Subhash and Om

Khichad and all of them started abusing each other and

thereafter also started quarreling which resulted into

skirmish. It was also stated that the complainant, Rai Singh

and Ankush tried to pacify them, then suddenly appellant -

Subhash son of Mahendra took out a pistol from his pocket

and with intent to kill Krishan fired a gunshot on him which

hit him on his stomach; blood started oozing out from his

stomach; he fell down and became unconscious. It was

further stated in the complaint that the appellant - Subhash

ran away from the scene of crime and the complainant and

Aditya took Krishan to the Tibbi Government Hospital,

wherefrom the Doctor referred him to Hanumangarh. He has

prayed that action be taken against appellant - Subhash.

4. On the basis of the above complaint an FIR bearing

No.115/2014 was registered at Police Station Tibbi (Ex. P-

13) and after completion of the investigation filed charge-

sheet against the appellants Subhash and Ankush in the

Court of Judicial Magistrate First Class, Tibbi for the offences

under Sections 302, 323/34 IPC and 3/25 of the Arms Act

and Section 302, 323, 201/34 IPC respectively.

5. Later on, the case was committed to the Sessions Judge,

Hanumangarh, who assigned the same to the Additional

Sessions Judge, No.2 Hanumangarh (hereinafter to be

referred as 'the trial court').

6. The trial court framed charges against accused - Subhash for

the offences under Sections 302 and 201 IPC read with

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Section 3/25 and 7/27 (2) of the Arms Act and against the

accused - Ankush for the offences under Sections 302/34

and 201 IPC. However, the accused - appellants denied the

charges and claimed trial.

7. To prove the charges against the accused-appellants, the

prosecution, in support of its case, produced as many as 22

witnesses and also exhibited 74 documents. Statements of

accused-appellants were recorded under Section 313 Cr.P.C.;

no defence witness was produced, however, two documents

were exhibited in defence. The trial court after analyzing the

evidence available on record, convicted and sentenced the

appellants as referred in the earlier part of the order.

8. Assailing the impugned judgment passed by the trial court,

Mr. J.S. Choudhary, learned Senior Counsel assisted by

Mr. Pradeep Choudhary and Ms. Sampati Choudhary has

argued that the trial court has not appreciated the evidence

available on record in right perspective and committed error

in convicting and sentencing the appellants vide impugned

judgment.

9. Learned counsel for the appellants has also argued that

there was a gross delay of around 8 hours in lodging the FIR,

which has not been explained by the complainant. It is

further submitted that this fact is sufficient to prove that the

FIR was lodged after due deliberation and the appellants

have falsely been implicated in this case. It is submitted that

the delay in filing of FIR is fatal, however, the trial court has

ignored this aspect of the matter.

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10. It is also argued that Dr. Balwant Sihag (P.W.-4) in his court

statement has stated that when injured reached the hospital,

he immediately informed the police. It is argued that since

the police was informed about the incident, the later

complaint (Ex. P-12) cannot be treated as FIR. He referred

to statement of Ram Pratap (P.W.-5) and submitted that this

witness has stated that names of the accused were written

after due deliberation.

11. It is further argued by Mr. Choudhary that the trial court has

grossly erred in placing reliance on the evidence of Guddi

and Aditya though their presence, at the scene of crime, is

highly doubtful. In the written complaint (Ex. P-12), the

complainant did not mention regarding the presence of

Guddi and Aditya. It is further submitted that the

prosecution witnesses, namely, Ram Pratap (P.W.-5),

Sulochna (P.W.-8), Suman (P.W.-9), Jyani Devi (P.W.-10),

Gauri Shankar (P.W.-11), Rukma Devi (P.W.-12), Rai Singh

(P.W.-13) and Om Prakash (P.W.-18) have not supported the

prosecution story and deposed that Guddi and Aditya were

not present in the room, where the incident took place.

12. Learned counsel has invited our attention towards the

statement of Ram Pratap (P.W.-5) and submitted that in his

cross-examination by the Public Prosecutor, he has

specifically stated that Guddi and Aditya were not present at

the time of incident and they reached later. It is submitted

that from the evidence of Ram Pratap (P.W.-5), it is clear that

Guddi and Aditya were not even present in the house when

the incident took place and they reached the spot after the

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incident. Learned counsel has further submitted that even if

it is assumed that Guddi and Aditya were present in the

house, but certainly they were not in the room when the

alleged incident of firing took place. He referred to the

statements of Sulochna (P.W.-8), Suman (P.W.-9), Jyani Devi

(P.W.-10), Gauri Shankar (P.W.-11), Rukma Devi (P.W.-12),

Rai Singh (P.W.-13) and Om Prakash (P.W.-18) and submitted

that as per the testimony of above witnesses appellant

Subhash, deceased Krishan, Ram Pratap, Rai Singh and Om

Khichad were in a different room, whereas all the other

persons were sitting in the courtyard and reached in the

room, where incident took place, after hearing the voice of

gunshot.

13. Learned counsel has, therefore, submitted that in the above

mentioned circumstances, the presence of Guddi (P.W.-6)

and Aditya (P.W.-7) at the scene of crime is highly doubtful,

but the trial court has grossly erred in placing reliance on the

testimony of the said witnesses while convicting and

sentencing the appellants vide impugned judgment.

14. Learned counsel has further argued that the trial court has

also erred in treating Ex.P-44 as dying declaration of the

deceased. Learned counsel has submitted that Kedar Lal

(P.W.-20) in his evidence has stated that he recorded the

statement of the deceased on 25.04.2014 in Sparsh

Hospital, Jaipur, but it is clear from a bare perusal of Ex.P-44

that the date mentioned on the same is 26.04.2014. It is

further submitted that Kedar Lal (P.W.-20) has specifically

stated in his cross-examination that no written order was

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given to him by the SHO to record the statement of the

deceased. It is further submitted that the Roznamcha,

wherein Kedar Lal (P.W.-20) has recorded his journey to

Jaipur has not been produced. It is argued that it is

important to note that Kedar Lal (P.W.-20) in his evidence

has specifically admitted that before recording the statement

(Ex.P-44) of the deceased, he did not seek opinion of the

doctor regarding the condition of the deceased to the effect

that whether the deceased is fit to give statement or not,

rather he has admitted that he has not recorded the said

statement (Ex.P-44) in the presence of any doctor. Learned

counsel has, therefore, submitted that by no means, Ex. P-

44 can be treated as a dying declaration.

15. Learned counsel for the appellants has further submitted

that the incident took place on 24.04.2014, however, the

injured Krishan expired on 11.07.2014. Learned counsel

has referred to the statement of Dr. K. P. Singh (P.W.-22),

who in his evidence has stated that the deceased Krishan

was under his treatment from 24.04.2014 to 03.05.2014,

however, on 03.05.2014, the relatives of the deceased got

him discharged against medical advice. It is submitted that

there is nothing on record which suggests that after

03.05.2014, in which hospital, the deceased was admitted

and where he was treated. Learned counsel has submitted

that from the said fact, it can be gathered that the deceased

died because he was not provided proper treatment,

however, the trial court has not taken into consideration the

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above aspect of the matter and has illegally convicted and

sentenced the appellants.

16. Learned counsel has further argued that Ram Pratap

(P.W.-5), Suman (P.W.-9) and Rai Singh (P.W.-13) in their

evidence have specifically stated that the deceased Krishan

received firearm injury in the stomach when he was trying to

pull out a pistol from his pocket during scuffle. It is

submitted that from the said evidence, it is clear that the

appellant - Subhash had not fired any gunshot in the

stomach of the deceased, but the deceased received injury

accidentally from his own pistol when he was trying to pull

out the same from his pocket.

17. Learned counsel has further submitted that recovery of the

gun at the instance of the appellant - Subhash is also

doubtful because at the time of recovery of the alleged

pistol, no independent witness was called out and the Police

personnel were made witnesses of the said recovery.

Learned counsel has submitted that in the absence of any

independent witness of recovery of the pistol, the recovery of

the pistol, at the instance of appellant - Subhash, is doubtful

and the same cannot be relied upon.

18. Learned counsel for the appellants has further argued that

the learned trial court has grossly erred in convicting and

sentencing the appellant - Subhash for the offences under

Sections 3/25 and 7/27 (2) of the Arms Act. It is submitted

that as per Section 39 of the Arms Act, previous sanction of

District Magistrate is necessary for instituting a prosecution

against any person in respect of any offence under Section 3

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of the Arms Act. It is submitted that in the present case, no

previous sanction of the District Magistrate concerned has

been obtained/produced/exhibited during the trial. In such

circumstances, the appellant - Subhash cannot be held

guilty for the offences under Sections 3/25 and 7/27 (2) of

the Arms Act.

19. In the alternative, it is argued that sudden quarrel erupted

between Om Prakash, Krishan and Subhash and during hot

discussions, when deceased Krishan tried to attack on

Subhash, appellant Ankush and Rai Singh tried to control

deceased Krishan, then Subhash, out of fear to save himself,

fired a gunshot which accidentally hit deceased Krishan in his

stomach and in such circumstances, it can be said that

incident took place on spur of moment and the appellant -

Subhash had no intention to kill the deceased Krishan and

looking to the above circumstances, the case against the

appellant - Subhash does not travel beyond Section 304

Part-I or Part-II IPC, however, the trial court has erred in

convicting the appellant - Subhas for the offence under

Section 302 IPC.

20. So far as the appellant - Ankush is concerned, learned

counsel for the appellants has argued that the trial court has

erred in convicting him for the offence under Section 302/34

and 201 IPC. It is submitted that the prosecution has failed

to prove that the appellants Subhash and Ankush had acted

in furtherance of common intention with pre-arranged plan

with prior meeting of minds. It is contended that from the

evidence available on record, it is clear that appellant -

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Ankush was trying to defuse the situation along with other

persons present in the room when Om Prakash, Subhash and

deceased Krishan entered into scuffle.

21. Referring to the complaint (Ex. P-12) and the statement of

Ram Pratap (P.W.-5), it is argued that appellant - Ankush

was not involved in commission of crime; he tried to cool

down the quarreling brothers. It is further contended that

Guddi (P.W.-6) and Aditya (P.W.-7) have falsely claimed that

appellant - Ankush along with Rai Singh (P.W.-13) caught

hold of the deceased Krishan and Rai Singh (P.W.-13)

instigated appellant - Subhash to fire gunshot on deceased

Krishan. It is submitted that Rai Singh (P.W.-13) has not

been charge-sheeted or charged under Section 34 IPC.

Learned counsel for the appellants has further argued that

the allegation levelled by Guddi (P.W.-6) and Aditya (P.W.-7)

against the appellant - Ankush of running away with the

pistol used in crime is also false as no pistol was recovered

at his instance and the same was recovered at the instance

of appellant - Subhash. It is submitted that in such

circumstances, the trial court has erred in convicting and

sentencing the appellant - Ankush for the offences under

Sections 302/34 and 201 IPC.

22. On the strength of above arguments, learned counsel for the

appellants has submitted that the impugned judgment

passed by the trial court may be set aside and appropriate

order be passed.

23. Per contra, learned Public Prosecutor has supported the

impugned judgment passed by learned trial court and argued

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that the prosecution has proved its case beyond reasonable

doubt with regard to guilt of appellants - Shubhas and

Ankush. It is submitted that the prosecution has produced

cogent and reliable evidence to prove that the appellant -

Shubhas fired a gunshot, which resulted into death of

Krishan and the appellant - Ankush helped in commission of

crime and ran away with the pistol, used in the commission

of crime with an intention to destroy the evidence.

24. Learned Public Prosecutor has, therefore, argued that there

is no merit in this appeal and the same is liable to be

dismissed.

25. So far as the contention of learned counsel for the appellants

with regard to unexplained delay in filing the FIR is

concerned, it is noticed that the written complaint (Ex. P-12)

was submitted by Ram Pratap (P.W.-5) on 24.04.2014 at

10:15 PM. In the said complaint, the time of incident is

mentioned as 02:30 PM on 24.04.2014. Ram Pratap (P.W.-5)

in his cross-examination has stated that he submitted a

written complaint at Police Station Tibbi at 10:00 PM. He has

also stated that he brought the injured Krishan to Tibbi

Government Hospital wherefrom Krishan was referred to

Hanumangarh Hospital and from Hanumangarh, he was

referred to Jaipur. As such, Ram Pratap (P.W.-5) accompanied

the injured Krishan to Government Hospital Tibbi and then to

Hanumangarh and returned to Tibbi after sending him to

hospital at Jaipur.

26. Taking into consideration the said circumstances, it can be

presumed that as Krishan was injured and referred to

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Hanumangarh, Ram Pratap (P.W.-5) and other relatives

accompanied injured Krishan to Hanumangarh and when he

was referred to Jaipur from Hanumangarh, Ram Pratap (P.W.-

5) returned back and filed the FIR. Though Dr. Balwant Sihag

(P.W.-4) in his statements has stated that he informed the

Police about the incident when injured Krishan was brought

to Tibbi Government Hospital, but at the same time, he

nowhere stated that the relatives of injured had informed

him that accused - Subhash fired gunshot in the stomach of

Krishan. Dinesh Kumar Meena (P.W.-21), the then SHO,

Police Station Tibbi though confirmed that he received an

information from the doctor that one injured person namely

Krishan was brought to hospital, but has not stated that

whole incident was narrated to him by the doctor. Dinesh

Kumar Meena (P.W.-21) has further stated that on receiving

information, he reached Tibbi Government Hospital, but by

that time, injured Krishan was referred to Hanumangarh and

by the time he reached Hanumangarh Hospital, injured

Krishan was referred to Jaipur.

27. It is but natural that when a close relative of any person is

severely injured, the first priority of that person is to provide

him necessary treatment and if in that process, some time is

consumed and matter is not reported to the Police, but

reported later on, it cannot be said that the delay in

submitting the FIR is fatal. Learned trial court after

considering the relevant evidence has rightly come to the

conclusion that in the facts and circumstances of the case,

the delay in FIR cannot be said to be fatal.

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28. Another contention of learned counsel for the appellants

regarding the presence of Guddi (P.W.-6) and Aditya (P.W.-7)

at the scene of crime is doubtful is also considered, but for

rejection only. Though in the written complaint (Ex. P-12),

there is no mention that Guddi (P.W.-6) and Aditya (P.W.-7)

were present at the scene of crime, however, the other

prosecution witnesses, namely, Sulochna (P.W.-8), Suman

(P.W.-9), Jyani Devi (P.W.-10), Gauri Shankar (P.W.-11),

Rukma Devi (P.W.-12), Rai Singh (P.W.-13) and Om

Prakash (P.W.-18) have stated in their examination-in-chief

that Guddi (P.W.-6) and Aditya (P.W.-7) were present in the

house at the time of the incident. Though the above-referred

witnesses were declared hostile, but it is settled that

evidence of a prosecution witness cannot be rejected merely

for the reason that the prosecution chose to plead them as

hostile witness and cross-examined them. The evidence of

such witnesses cannot be brushed aside altogether, but the

relevant part can be used by the prosecution or the defence.

Reference can be placed on the decision rendered by the

Hon'ble Supreme Court in C. Muniappan Vs. State of

Tamil Nadu; (2010) 9 SCC 567.

29. As stated earlier, though Ram Pratap (P.W.-5) in his court

statement has stated that Guddi (P.W.-6) and Aditya (P.W.-7)

were not present at the time of incident, but the other

prosecution witnesses have clearly stated that Guddi (P.W.-6)

and Aditya (P.W.-7) were very much present in the house

where the incident took place.

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30. After going though the material available on record, we are

of the view that the trial court has rightly held that it cannot

be said that Guddi (P.W.-6) and Aditya (P.W.-7) were not

present when the incident took place. Both the above-named

witnesses have clearly deposed that accused - Subhash fired

gun-shot in the stomach of Krishan and there is no reason to

disbelieve the said piece of evidence of the said witnesses.

31. The other contention of learned counsel for the appellants

that the trial court has grossly erred in treating Exhibit P-44

as dying declaration of the deceased and thereafter relying

on the same is concerned, it is noticed that on Exhibit P-44,

the date of recording of dying declaration is mentioned as

26.04.2014, whereas Kedar Lal (P.W.-20) in his court

statement has stated that he recorded the statement of the

deceased on 25.04.2014. It is also noticed that Kedar Lal

(P.W.-20) recovered seven pallets and one plastic dart on

25.04.2014 from the hospital, where injured Krishan was

treated, then there is no reason for him to record the

statement of Krishan on 26.04.2014. Apart from that Kedar

Lal (P.W.-20) in his cross-examination has specifically stated

that he has not obtained a fitness certificate from the doctor

treating injured Krishan regarding his condition to give

statement and has also stated that the said statement has

not been recorded during the presence of treating doctor.

32. Dr. K. P. Singh (P.W.-22), who handed over the pallets and

plastic dart to Kedar Lal (P.W.-20) on 25.04.2014, has

nowhere stated in his court statement that Kedar Lal (P.W.-

20) has enquired about the condition of the injured for giving

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statement or asked him that injured Krishan is fit to give

statement.

33. In view of the above, we are of the opinion that in the above

noted circumstances, it would not be safe to treat the Ex.44

as dying declaration of deceased Krishan and the trial court

has erred in treating Ex. P-44 as dying declaration of the

deceased.

34. Even though, if the Ex. P-44, the so called dying declaration

is ignored, the testimony of the two witnesses Guddi (P.W.-6)

and Aditya (P.W.-7) cannot be ignored and from the evidence

of both these witnesses, the prosecution has satisfactorily

proved that the appellant - Subhash has fired gunshot in the

stomach of deceased Krishan.

35. So far as the argument of learned counsel for the appellants

to the effect that injured died after 79 days of the incident

and therefore it cannot be presumed that he died on account

of the gunshot injury is concerned, it is true that the incident

took place on 24.04.2014 and the injured died on

11.07.2014. It is also to be noticed that after 03.05.2014

and up to the death of the injured Krishan, no clear record is

available that in which hospital he was admitted or where he

was treated, however, the said facts are not sufficient to

conclude that the cause of death of Krishan was not the

gunshot injury.

36. From the injury report (Ex. P-14), postmortem report

(Ex. P-41) and from the statements of Dr. Priyanka Sharma

(P.W.-17), it is clear that the deceased died on account of the

injury received from the gunshot. It is irrelevant that injured

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Krishan expired after 79 days of the incident because all the

other evidences available on record clearly suggest that he

died due to gunshot injury suffered by him on the day of

incident.

37. The other contention of the learned counsel for the

appellants that recovery of the gun, at the instance of the

appellant - Subhash, is doubtful as no independent witness

was called at the time of recovery is concerned, the said

argument is also without any merit because the recovery of

the gun at the instance of the appellant - Subhash cannot be

ignored solely on the ground that no independent witness

was called at the time of recovery of the said pistol.

38. So far as the contention of learned counsel for appellants

that the trial court has erred in convicting the accused

appellant - Subhas for the offence punishable under Section

3/75 and 7/27 (2) of the Arms Act is concerned, it is clear

that from the evidence of Dinesh Kumar Meena,

Investigating Officer (P.W.-21), no proof regarding obtaining

previous sanction from the District Magistrate concerned is

produced during the trial for initiating prosecution against

appellant - Subhash with regard to any of the offence under

Section 3 of the Arms Act.

39. Section 39 of the Arms Act clearly provides that in the

absence of previous sanction of the District Magistrate

concerned, no prosecution can be instituted against any

person in respect of any offence under Section 3 of the Arms

Act. In such circumstances, we have no hesitation in holding

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that the trial court has erred in convicting the appellant -

Subhash for the offence under Section 3/25 of the Arms Act.

40. So far as Section 7/27 (2) of the Arms Act is concerned, no

previous sanction is required for instituting a prosecution

against any person in respect of any offence under Section 7

of the Arms Act. The recovery of pistol at the instance of the

appellant - Subhash is fully proved and the recovered pistol

comes within the definition of prohibited arm. Hence, the

trial court has not committed any illegality in convicting

against appellant - Subhash for the offence under Section

7/27 (2) of the Arms Act.

41. So far as the submission of learned counsel for the

appellants to the effect that the appellant - Subhash had no

intention to kill the deceased Krishan and the incident took

place at the spur of moment, therefore, the offence against

the appellant - Subhash does not travel beyond Section 304

Part-I or Part-II IPC is concerned, from the evidence

available on record, it can be gathered that the deceased

Krishan and Om real brothers, whereas appellant Subhash is

son of late Mahendra, who happened to be real brother of

deceased Krishan and Om. Some dispute, in respect of

partition of the property between them, was going on and for

amicable settlement of the said dispute, in the afternoon of

24.04.2014, the above-named persons along with other

relatives assembled in the house of Ram Pratap (P.W.-5).

During the course of discussion, heated arguments were

exchanged and deceased Krishan, Om Prakash and appellant

- Subhash scuffled with each other.

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42. Guddi (P.W.-6) in her cross-examination and in chief has

stated that after hearing the heated discussion, when she

entered into the room, she saw that Ankush caught hold of

deceased Krishan and Rai Singh asked Subhash to fire

gunshot, then suddenly Subhash fired a gunshot which hit

deceased Krishan in right side of his stomach. She has

further said that Subhash ran away from the scene of crime

and Ankush also ran away from the scene of crime with the

pistol which is used in commission of crime and while

running away, he also slapped her. In her cross-examination

and in chief, Guddi (P.W.-6) has admitted that all persons

were engaged in heated discussion, however, she did not

know on what point they were discussing.

43. Aditya (P.W.-7) in his cross-examination and in chief has

stated that he along with his father Krishan and mother

Guddi Devi reached in the house of Ram Pratap (P.W.-5) at

about 10-11 AM and other persons, namely, Subhash with

his mother Jyani Devi, Om Prakash with his wife Suman, Rai

Singh with his wife Sulochna and Ankush were already there

and other persons reached there at about 01:30 PM. In the

panchayat, Ram Pratap (P.W.-5) asked Om Prakash that you

are acting smart nowadays and threatening to lock the home

and shop, then Om Prakash replied Subhash is here, so talk

to him only. At this point, his father Krishan replied to Om

Prakash why to talk to Subhash as his wife told to lock the

shop, then suddenly, Subhash said that he will lock the shop

and see who dare to stop him. After that, Rai Singh asked

Subhash and Ankush to kill Krishan, then Ankush caught

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hold both the hands of Krishan and Rai Singh caught hold of

him and Subhash fired gunshot which hit right side of

stomach of his father Krishan. He further stated that when

Subhash tried to fire another gunshot, however, his father hit

his hand and on account of which, pistol fell down.

Thereafter, Subhash immediately rushed out of the room and

fled away in his car along with his mother and Ankush ran

away with the pistol.

44. Ram Pratap (P.W.-5) in his cross-examination and in chief

has stated that Krishan, Om Prakash and appellant Subhash

while abusing slapped each other, then he, Rai Singh and

Ankush tried to separate them and during that point of time,

suddenly gunshot was fired in the room which hit Krishan. In

his cross-examination, he has stated that Krishan abused

Om Prakash and Subhash and for that reason, they started

fighting with each other. At the same time, he replied to the

court's query that he was not present and he did not know

how the gunshot was fired.

45. Rai Singh (P.W.-13) in his examination-in-chief has stated

that when Krishan refused to give share of the property to

appellant - Subhash and when they confronted him, Krishan

took out pistol from his pocket from which gunshot was fired

and hit him.

46. The other witnesses namely Sulochna (P.W.-8), Suman (P.W.-

9), Jyani Devi (P.W.-10), Gauri Shanker (P.W.-11), Rukma

Devi (P.W.-12) and Om Prakash (P.W.-18) have deposed that

during the course of panchayat, heated discussion took

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place, which resulted into scuffle, in which the gunshot was

fired.

47. From the above, it is clear that during the course of

panchayat, two brothers; deceased Krishan and Om Prakash

and their nephew Subhash scuffled with each other and

then, appellant - Subhash fired a gunshot, which is

recovered at his instance by the Police, which hit in the

stomach of Krishan which resulted into his death.

48. From the forensic science laboratory report (Ex. P-59), it is

proved that the gunshot was fired from 12 bore country-

made pistol which was recovered at the instance of Subhash.

Now, the question in this case is whether the appellant -

Subhash had any intention to kill the deceased or not.

49. The Hon'ble Supreme Court in the case of Rampal Singh

Vs. State of U.P., reported in (2012) 8 SCC 289 while

defining the distinction between Sections 300, 302 IPC on

the one hand and Section 304 Part-I and Part-II of the IPC

on the other has observed as under :-

"9. Having completed narration of the facts and noticed the precise contentions raised before us in the present appeal, we may now refer to the law on the subject. We are of the opinion that elucidative discussion on the legal principles governing the distinction between Sections 300, 302 of the Code on the one hand and Section 304, Part I and Part II of the Code on the other, would be necessary to precisely answer the questions raised.

10. Sections 299 and 300 of the Code deal with the definition of 'culpable homicide' and 'murder', respectively. In terms of Section 299, 'culpable homicide' is described as an act of causing death (i) with the intention of causing death or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such an act is likely to cause death. As is clear

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from a reading of this provision, the former part of it, emphasises on the expression 'intention' while the latter upon 'knowledge'. Both these are positive mental attitudes, however, of different degrees. The mental element in 'culpable homicide', that is, the mental attitude towards the consequences of conduct is one of intention and knowledge. Once an offence is caused in any of the three stated manners noted-above, it would be 'culpable homicide'. Section 300, however, deals with 'murder' although there is no clear definition of 'murder' in Section 300 of the Code. As has been repeatedly held by this Court, 'culpable homicide' is the genus and 'murder' is its species and all 'murders' are 'culpable homicides' but all 'culpable homicides' are not 'murders'.

11. Another classification that emerges from this discussion is 'culpable homicide not amounting to murder', punishable under Section 304 of the Code. There is again a very fine line of distinction between the cases falling under Section 304, Part I and Part II, which we shall shortly discuss.

12. In the case of State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. : (1976) 4 SCC 382, this Court while clarifying the distinction between these two terms and their consequences, held as under:

12. In the scheme of the penal Code, 'culpable homicide' is genus and 'murder' its species. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called 'culpable homicide of the first degree'. This is the greatest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

13. Section 300 of the Code proceeds with reference to Section 299 of the Code. 'Culpable homicide' may or may not amount to 'murder', in terms of Section 300 of the Code. When a 'culpable homicide is murder', the punitive consequences shall follow in

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terms of Section 302 of the Code while in other cases, that is, where an offence is 'culpable homicide not amounting to murder', punishment would be dealt with under Section 304 of the Code.

Various judgments of this Court have dealt with the cases which fall in various classes of firstly, secondly, thirdly and fourthly, respectively, stated under Section 300 of the Code. It would not be necessary for us to deal with that aspect of the case in any further detail. of course, the principles that have been stated in various judgments like Abdul Waheed Khan @ Waheed and Ors. v. State of A.P. : (2002) 7 SCC 175,V irsa Singh v. State of Punjab :

AIR 1958 SC 465 and Rajwant and Anr. v. State of Kerala : AIR 1966 SC 1874 are the broad guidelines and not cast-iron imperatives. These are the cases which would provide precepts for the courts to exercise their judicial discretion while considering the cases to determine as to which particular clause of Section 300 of the Code they fall in.

14. This Court has time and again deliberated upon the crucial question of distinction between Sections 299 and 300 of the Code, i.e., 'culpable homicide' and 'murder' respectively. In the case of Phulia Tudu and Anr. v. State of Bihar (now Jharkhand) : AIR 2007 SC 3215, the Court noticed that confusion is caused if courts, losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of these sections. The Court provided the following comparative table to help in appreciating the points of discussion between these two offences:

       Section 299                              Section 300
       A    person       commits      culpable Subject      to   certain   exceptions

homicide if the act by which the culpable homicide is murder if the death is caused is done act by which the death is caused is done -

INTENTION

(a) with the intention of death; or (1) with the intention of causing death; or

(b) with the intention of causing (2) with the intention of causing such bodily injury as is likely to such bodily injury as the offender cause death; or knows to be likely to cause the death of the person to whom the harm is caused ; or

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(3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE

(c) with the knowledge that the act (4) with the knowledge that the is likely to cause death. act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse or incurring the risk of causing death or such injury as is mentioned above.

15. Section 300 of the Code states what kind of acts, when done with the intention of causing death or bodily injury as the offender knows to be likely to cause death or causing bodily injury to any person, which is sufficient in the ordinary course of nature to cause death or the person causing injury knows that it is so imminently dangerous that it must in all probability cause death, would amount to 'murder'. It is also 'murder' when such an act is committed, without any excuse for incurring the risk of causing death or such bodily injury. The Section also prescribes the exceptions to 'culpable homicide amounting to murder'. The explanations spell out the elements which need to be satisfied for application of such exceptions, like an act done in the heat of passion and without pre-mediation. Where the offender whilst being deprived of the power of self-control by grave and sudden provocation causes the death of the person who has caused the provocation or causes the death of any other person by mistake or accident, provided such provocation was not at the behest of the offender himself, 'culpable homicide would not amount to murder'. This exception itself has three limitations. All these are questions of facts and would have to be determined in the facts and circumstances of a given case.

16. This Court in the case of Vineet Kumar Chauhan v. State of U.P. : (2007) 14 SCC 660 noticed that academic distinction between 'murder' and 'culpable homicide not amounting to murder' had vividly been brought out by this Court in State of A.P. v. Rayavarapu Punnayya : (1976) 4 SCC 382, where it was observed as under:

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... that the safest way of approach to the interpretation and application of Section 299 and 300 of the Code is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of Section 299 and 300 of the Code and the drawing support from the decisions of the court in Virsa Singh v. State of Punjab and Rajwant Singh v. State of Kerala, speaking for the court, Justice RS Sarkaria, neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the court said that wherever the Court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, on the facts of a case, it would be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be that the accused has done an act by doing which he has caused the death of another. Two, if such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in Section

299. If the answer to this question is in the negative, the offence would be culpable homicide not amounting to murder, punishable under the First or Second part of Section 304, depending respectively, on whether this second or the third clause of Section 299 is applicable. If this question is found in the positive, but the cases come within any of the exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the first part of Section 304 of the Code. It was, however, clarified that these were only broad guidelines to facilitate the task of the court and not cast-iron imperative.

17. Having noticed the distinction between 'murder' and 'culpable homicide not amounting to murder', now we are required to explain the distinction between the application of Section 302 of the Code on the one hand and Section 304 of the Code on the other.

18. In Ajit Singh v. State of Punjab (2011) 9 SCC 462, the Court held that in order to hold whether an offence would fall under Section 302 or Section 304 Part I of the Code, the courts have to be extremely cautious in examining whether the same falls under Section 300 of the Code which states whether a culpable homicide is murder, or would it fall under its five exceptions which lay down when culpable homicide is not murder. In other words, Section 300 states both, what is murder and what is not. First finds place in Section 300 in its four stated categories, while the second finds detailed mention in the stated five exceptions to Section 300. The legislature in its wisdom, thus, covered the entire gamut of culpable homicide that 'amounting to murder' as well as that 'not amounting to murder' in a composite manner in Section 300 of the Code. Sections 302 and 304 of the Code are primarily the punitive

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provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences.

19. An analysis of these two Sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, that is (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first clause of this section includes only those cases in which offence is really 'murder', but mitigated by the presence of circumstances recognized in the exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular. In this regard, we may also refer to the judgment of this Court in the case of Fatta v. Emperor, 1151. C. 476

20. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed.

21. An important corollary to this discussion is the marked distinction between the provisions of Section 304 Part I and Part II of the Code. Linguistic distinction between the two Parts of Section 304 is evident from the very language of this Section. There are two apparent distinctions, one in relation to the punishment while other is founded on the intention of causing that act, without any intention but with the knowledge that the act is likely to cause

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death. It is neither advisable nor possible to state any straightjacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merits. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with a clear demarcation as to under what category of cases, the case at hand falls and accordingly punish the accused."

50. Recently, in Mohd. Rafiq vs. State of Madhya Pradesh,

reported in (2021) 10 SCC 706, the Hon'ble Supreme

Court, after noticing the earlier judgments on the point, has

held as under :-

"11. The question of whether in a given case, a homicide is murder, punishable Under Section 302 Indian Penal Code, or culpable homicide, of either description, punishable Under Section 304 Indian Penal Code has engaged the attention of courts in this country for over one and a half century, since the enactment of the Indian Penal Code; a welter of case law, on this aspect exists, including perhaps several hundred rulings by this Court. The use of the term "likely" in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the Accused may or may not have killed the person. Section 300 Indian Penal Code which defines murder, however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the Accused. The Accused is for sure that his act will definitely cause death. It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes.

12. The decision in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. notes the important distinction between the two provisions, and their differing, but subtle distinction. The court pertinently pointed out that:

12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable

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homicide" but not vice- versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300.

13. The considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder, were outlined in Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh. This Court observed that:

29. Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls Under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the Accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable Under Section 302, are not converted into offences punishable Under

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Section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable Under Section 302. 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. The above list of circumstance is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention."

(Emphasis supplied)

51. As discussed earlier, the incident took place during the

course of panchayat when heated discussion took place

between two brothers; deceased Krishan and Om Prakash

and their nephew appellant - Subhash. All the eye-witnesses

have verified that the incident took place when the deceased

Krishan, Om Prakash and Subhash started fighting with each

other. There is contradiction in the statement of Guddi (P.W.-

6) and Aditya (P.W.-7) that as to how the incident started,

but it is clear that the appellant - Subhash has fired gunshot

during the scuffle.

52. From the above discussion, we are of the view that the

present case falls under the exception contained in Section

300 IPC and is simplicitor of culpable homicide not

amounting to murder.

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53. In such circumstances, the conviction of appellant - Subhash

under Section 302 IPC cannot be sustained, however, he is

liable to be convicted under Section 304-I IPC. Taking

guidance from the judgments of the Hon'ble Supreme Court

rendered in the cases of Hazara Singh Vs. Raj Kumar

reported in (2013) 9 SCC 516, Ramashraya Chakravarti

Vs. State of M.P. reported in (1976) 1 SCC 281,

Gurmukh Singh Vs. State of Haryana reported in (2009)

15 SCC 635 and the judgment of the High Court of

Allahabad rendered in the case of Himanchal & Ors. Vs.

State of U.P. reported in MANU/UP/2715/2015, the

appellant-Subhash is required to be sentenced appropriately

for the offences punishable under Section 304-I IPC.

54. So far as case of the appellant - Ankush is concerned, the

trial court has convicted him for the offences under Section

302/34 and 201 IPC.

55. It is apposite to quote Section 34 IPC, which reads as

under :-

"34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

56. As per Section 34 IPC, there should be two or more accused

having common intention to commit an offence. The

prosecution has to prove that the persons involved in the

crime had a pre-arranged plan to commit the offence and

also has to prove that there was prior meeting of minds

between the accused persons.

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57. In the present case, no such evidence is produced by the

prosecution to prove that prior to the incident, the accused

appellants - Subhash and Ankush had a common intention

or a pre-plan and as per the said plan, they have committed

the offence. On the other hand, the material available on

record suggests that appellant - Ankush and other persons

tried to separate deceased Krishan, Om Praksah and

Subhash when they entered into a scuffle and then suddenly

Subhash fired a gunshot on the stomach of deceased

Krishan. The evidence available on record also suggests that

when Krishan tried to hit Subhash, Ankush, his father Rai

Singh and Ram Pratap tried to control deceased Krishan and

then Subhash suddenly fired a gunshot on Krishan.

58. Having carefully scrutinizing the material available on record,

we are of the view that the trial court, without there being

sufficient evidence available on record of common intention

of appellants - Ankush and Subhash, has convicted appellant

- Ankush for the offence under Section 302/34 IPC and the

same cannot be sustained.

59. The trial court has also erred in convicting the appellant -

Ankush for the offence under Section 201 IPC. The allegation

levelled by the prosecution that he ran away with the pistol

used in commission of crime is simply based on the

testimony of Guddi (P.W.-6) and Aditya (P.W.-7), but the

same is not corroborated by any evidence. Admittedly, the

pistol was not recovered at the instance of appellant -

Ankush but was recovered from the appellant - Subhash and

there is no evidence available on record which suggests that

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after running away with the pistol appellant - Ankush

handed over the same to appellant - Subhash.

60. Resultantly, the appeal of the appellants is partly allowed.

The impugned judgment dated 26.08.2016 passed by

Additional Sessions Judge No.2, Hanumangarh is modified to

the following extent :-

I. That the conviction of accused appellant - Ankush for

the offences punishable under Sections 302/34 and 201

IPC is set aside and he is acquitted from the said

offences. He is on bail, his bail bonds stand cancelled.

II. That the conviction of accused appellant - Subhash for

the offence punishable under Section 3/25 of Arms Act

is set aside and he is acquitted from the said offence.

However, his conviction and sentence awarded by the

trial court for the offences punishable under Section

201 IPC and Section 7/27 (2) of Arms Act are upheld.

So far as conviction of accused appellant-Subhash for

the offence punishable under Section 302 IPC is

concerned, the same is converted into Section 304-I

IPC and the sentence of life imprisonment awarded to

him by the trial court is reduced to 12 years' rigorous

imprisonment with a fine of Rs.10,000/-, in default of

payment of fine, he shall further undergo six months'

simple imprisonment.

                                   (MUNNURI LAXMAN),J                                           (VIJAY BISHNOI),J


                                   -AjaySingh/-








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