Mohammad Rafiq, J.@mdashThis appeal is directed against the judgment dated 12/4/2005 passed by learned Special Judge, SC/ST (Prevention of Atrocities Act) Cases, Jaipur in Sessions Case No. 48/2003 whereby, the accused-appellant was convicted for offence u/s 302 IPC and sentenced to life imprisonment and fine of Rs. 2,000/- with the stipulation that in default of payment thereof, he shall have to further undergo simple imprisonment of one year. Brief facts of the case are that one Smt. Shashi Sharma submitted a written report (Exb. P/2) on 26/3/2003 to the S.H.O. Police Station Mansarovar, Jaipur at 5.30 a.m. alleging that she was residing in House No. 14/193 along with her husband Ghanshyam. They shifted to this house only on 10/3/2003. Earlier, they were residing in House No. 14/163 of the same colony. She was a government employee serving in Government Hospital at Mansarovar. In the night at around 1.00 a.m. of that day, her pet dog started barking. Her husband Ghanshyam asked her why the dog was barking. She opened the door but nobody was found there. Dog however still kept on barking incessantly. She then again opened the wooden door and noticed one person standing outside the grating door (jali gate). He was looking at her with bad intention. She called her husband, who immediately came there. The said person ran away. Her husband Ghanshyam chased him and she (informant) also ran behind. Ghanshyam reached close to the culprit but he threatened Ghanshyam not to come near or else he will fire at him. He suddenly opened fire at her husband. Her husband told her (informant) that he has fired at him and that she should snatch the revolver from his hands. She noticed in the street light that this person was their neighbour Maniram Chaudhary residing in House No. 14/225 in the same lane. When she tried to snatch the revolver, he did not leave the same. She (informant) inflicted repeated stone blows on his head, even then, he did not leave the revolver. Ghanshyam told her to call someone. At this, she knocked the doors of the neighbours but nobody turned up. Then, she rushed to the nearby lane where they were earlier residing and called the neighbours Kailash, Manoj and Sanjay. She went to the police station on scooter with Kailash. Police immediately came on spot and took both Ghanshyam and Maniram Chaudhary to SMS Hospital, Jaipur. Ghanshyam was declared brought dead.
2. That on receiving the aforesaid report, regular first information report was chalked out for offence u/S. 302/34 IPC. Post-mortem of the deceased was conducted vide Exb. P/16. As per opinion of the doctor, cause of death was hemorrhagic shock due to ante mortem Injury No. 1 and its internal manifestations. Investigation commenced and accused was arrested. After completion of investigation, police filed challan against the accused-appellant for offence u/S. 302 IPC. Charge for the said offence was framed against him, which he denied and claimed to be tried. Prosecution has produced 11 witnesses and exhibited 38 documents. The accused examined himself in defence as DW1 and produced 13 documents. The trial court after conclusion of the trial, convicted and sentenced the accused-appellant in the manner indicated above. Hence this appeal.
3. Shri Biri Singh, learned senior counsel for the accused-appellant argued that the trial court has erred in law in not correctly appreciating the statements of the prosecution witnesses. Star witness of the prosecution is complainant/informant-Smt. Shashi Sharma (PW2), who stated that she snatched the revolver from the accused, which put the same on the wall of the park. She handed over the same to the police when it came on spot. Such statement has been made by her in examination-in-chief as well as cross-examination. Learned senior counsel then referred to the statement of Arjun Ram (PW11), the investigation officer and contended that according to this witness, revolver was recovered from the pocket of the pent of the appellant when he was shown arrested in SMS Hospital vide seizure memo Exb. P/6. This clearly shows that right from the inception, manipulation was made to falsely implicate the accused-appellant. Learned senior counsel then referred to the telephonic information given by the informant Shashi Sharma to the SHO PS Mansarovar, Jaipur vide Rapat No. 1485 registered in the Rojnamcha on 26/3/2003 at 2.05 a.m. vide Exb. P/26. In that information, Shashi Sharma, merely informed the police that Maniram Chaudhary was beating her husband and has also fired at him and that both were grappling with each other and were lying in the lane. Learned senior counsel submitted that nothing has been mentioned in that report that accused-appellant Maniram Chaudhary came to the house of the deceased. In any case, even as per own showing of the prosecution, he was found standing in front of the gate of the house, but thereby it cannot be assumed that he had any bad intention.
4. Shri Biri Singh, learned senior counsel submitted that accused himself has received seven injuries but there is no explanation by the prosecution how the accused received injuries. The revolver of the accused appellant was licensed. As per the prosecution case, right from the inception when the ''rapat'' was entered in the ''rojnamcha'' on the fateful night, the story is that deceased and the accused while fighting grappled with each other and were lying in the lane and in that process, it was quite possible that the revolver fired accidentally, which is also corroborated from the post-mortem report (Exb. P/16). In the post-mortem report, diagram of the body frame of the deceased indicates the fire arm injury on chest moved downward, which clearly brings home the point that it was not an intentional fire but accidental one. It was never the intention of the accused-appellant to fire at the deceased because as per the prosecution, it was the deceased, who chased the accused and not vice-versa. Besides, if the accused had intention to fire, he could have fired at Shashi Sharma (PW2) as well when according to her, she snatched the revolver. It is also evident from his conduct that he did not run from the place of occurrence. Deceased as well as the accused both were brought together to the SMS Hospital, Jaipur by the police. Shri Biri Singh, learned senior counsel while referring to the post-mortem report (Exb. P/16) argued that first injury of the deceased was a punctured lacerated wound in the size of 1 x 3/4cm x Depth? In front of the chest with blackening and collar abrasion around the injury, the diameter of which was more towards the left side in the size of 0.3 cm. There were inverted margins and the blood was clotted placed in front of chest and the center of wound was 121.00cm from heels.
5. Injury report (Exb. D/4) of the accused clearly shows that the accused was conscious and therefore he could have easily run from the place of incident. This establishes the fact that accused-appellant did not have any intention to kill the deceased. It is a case where fire has been opened from point blank range, which is suggestive of accidental fire. Statement of Dr. Shivratan Kochar (PW6) that the deceased was fired at from a considerable distance is contrary to the established principle of medical jurisprudence. In the process of scuffling that ensued between them, both accused and deceased grappled with each other and both sustained number of injuries. Dr. Shivratan Kochar (PW6) admitted in his cross-examination that other injuries received by the deceased could have been caused on account of scuffle between the two.
6. Shri Biri Singh, learned senior counsel for the appellant argued that Shashi Sharma (PW2) was not legally wedded wife of the deceased. They were in a live-in relationship, which fact has been admitted by this witness in her cross-examination that they lived as husband and wife. Her testimony is highly doubtful. Sanjay Ramnani (PW3), Kailash Ramnani (PW4) and Manoj Ramnani (PW5), relatives of the deceased have not supported the version of the prosecution. They have also not supported the seizure memo Exb. P/6. Her above testimony therefore cannot be believed. It is argued that the prosecution did not lift the finger prints from the revolver. It did not send the blood-group of the accused for being tested while sending the other articles to the forensic science laboratory vide Exb. P/36. In the circumstances, the F.S.L. report cannot be a determinative factor against the accused.
7. Alternatively, learned senior counsel argued that even if the guilt of the accused-appellant of opening fire at the deceased is accepted, considering that fire opened accidentally when the deceased chased the appellant and a scuffle took place between them, the fire from the revolver was not opened with the intention to commit murder. The act of the accused in any event would fall within the definition of culpable homicide not amounting to murder attracting either Part-I or Part-II of Section 304 IPC. Thus altering the conviction, this Court may consider the alternative prayer of sentencing the accused to the period already undergone by him.
8. Per contra, Shri Javed Choudhary, learned Public Prosecutor opposed the appeal and argued that marital status of Smt. Shashi Sharma (PW2) and deceased-Ghanshyam and that she started living with deceased-Ghanshyam Balani, would not be a reason to discard her testimony. Even then, she has clarified in her cross-examination that they both married as per the hindu rites in the temple of Moti Doongri Ganeshji by exchange of garlands. Their family members also knew about their marriage. This marriage was solemnized with the consent of earlier wife of the deceased. Learned Public Prosecutor submitted that testimony of this witness, clinches the entire issue against the appellant. There is no contradiction between what she has stated in the court as PW2 and in the telephonic information, which she gave to the Police Station Mansarovar, Jaipur vide Exb. P/26. In telephonic information, she has categorically disclosed that she was serving with the Government Hospital, Mansarovar, Jaipur. Accused Maniram Chaudhary was beating her husband and he even fired at him and both were grappling with each other and lying in the street. Learned Public Prosecutor stated that minor discrepancies in regard to the evidence of recovery would not make much of difference. Even if Shashi Sharma (PW2) has stated that she handed over the revolver to the police on spot. Since license of the revolver was issued in the name of the accused-appellant, it was certainly in connection with the crime in which he himself was involved. Learned Public Prosecutor in this connection referred to the license of revolver Exb. P/24. The allegation against accused-appellant is also corroborated by the medical evidence. Postmortem report clearly corroborated the allegation that deceased received armpit fire-arm injury, which was responsible for his death. Dr. Shivratan Kochar (PW6) has proved the post-mortem report Exb. P/16 according to which, cause of death was hemorrhagic shock due to ante mortem Injury No. 1 and its internal manifestations. Injury No. 1 was punctured wound in front of chest. The fact that this injury was caused by fire-arm, has been proved by Dr. Shivratan Kochar (PW6). Learned Public Prosecutor argued that Dr. Shivratan Kochar (PW6) has rightly stated that fire was opened from some distance, therefore it may not be correct to say that revolver accidentally fired. The direction of the injury and that fire was opened from a particular angle by itself would not be a basis to form an opinion that it was an accidental fire. His opinion therefore is not liable to be rejected because ocular evidence has fully proved the guilt of the accused. Ocular evidence is corroborated by the medical evidence. The guilt of the accused-appellant is thus proved.
9. Learned Public Prosecutor submitted that even if Kailash Ramnani (PW4) and Manoj Ramnani (PW5) have not supported the seizure memo Exb. P/6, they were confronted with their previous statement given to the police vide Exb. P/14 and Exb. P/15, respectively. Seizure memo same has been proved by Arjun Ram (PW11), the investigation officer. Recovery of revolver stands proved by I.O. Arjun Ram (PW11). Witnesses of recovery have turned hostile but that will not materially affect the case of the prosecution because it was a licensed revolver of the appellant. It is denied that there is no explanation with regard to injuries of the accused-appellant. Evidence clearly proved that he received the injury in the same scuffle involving the deceased. But the fact is that deceased received 16 injuries as against only 7 injuries of the accused, only 2 of which were grievous, other 7 were simple abrasions. Those two injuries have been fully explained by Shashi Sharma (PW2), who categorically stated that she hit the accused repeatedly on his head with stone to snatch the revolver and get her husband freed from his clutches. It is therefore prayed that the appeal be dismissed.
10. We have given our anxious consideration to the rival submissions and perused the record.
11. Indisputably, the revolver, which has been recovered by the police vide Exb. P/6 is licensed to appellant and Exb. P/24 has been proved by Arjun Ram (PW11). The investigation officer may not have been correct in showing recovery of the revolver from possession of the appellant in the hospital, which as per Shashi Sharma (PW2), was handed over to the police on the spot itself. In either case, it is a fact, that the recovered revolver originated from the accused. The revolver has been proved to be in serviceable condition from the report of the F.S.L. (Exb. P/38). The report also opines that the examination of barrel residue indicates that submitted .32" revolver (W/1) had been fired, though its definite time of fire could not be ascertained. That minor discrepancy in the investigation therefore would not be a reason to discard the entire prosecution case.
12. Coming now to the argument that Shashi Sharma (PW2), though was a government servant but was still living with the deceased as his wife, who was already married and that there was no evidence to prove that they were married, it must be observed that marital status of the witness, as rightly argued by the learned Public Prosecutor, would not undermine her credibility. Staying in live in relationship or considering herself to be married to the deceased, as claimed by her that she married him in Moti Doongri Ganeshji just by exchange of garlands, was strictly personal to both of them. But this witness has in a most natural way proved the fact that it was the accused-appellant, who came to their house, their pet dog started barking and when she went to open the gate, nobody was found outside. But still the dog kept on barking, then she again went and opened the wooden gate then, she noticed one person standing outside the grating door (jali gate). She called Ghanshyam, who chased him. Accused initially warned him to stay away but when deceased still did not do so, he fired at him and then both grappled with each other and in that process, both of them received injuries. She claims that she also followed them and on the askance of the deceased, she tried to snatch the revolver from the accused-appellant, who did not leave the revolver therefore, she hit his head repeatedly by stone and ultimately she snatched the revolver but this was much after that the accused had already fired at the deceased. This finds corroboration in the injury report (Exb. D/4) of the accused showing that he received two grievous injuries on head, which had to be stitched.
13. According to the post-mortem report (Exb. P/16), the deceased received following injuries:-
External injuries detected on the body at the time of post mortem examination:-
(1) Punctured lacerated wound of size 1 x 3/4cm x Depth?, with blackening, collar of abrasion, with ovalty towards left side 0.3 cm, inverted margins and clotted blood, placed in front of chest of sternal region, the centre of wound is 121.0cm from heel.
(2) Diffuse swelling with blue-black discolouration of size 15 x 7cm on right side lumbar region of back the centre of this is 101.0cm away from heels. On palpation foreign body is felt and it dissected out and pierced in a vial. (Bullet).
(3) Abrasion 1.0x1/2 cm on mucosal surface of right lip with clotted blood.
(4) Abrasion 1.0 x 1/4cm on right anterior auxiliary fold with clotted blood.
(5) Abrasion 2.0 x 1.0cm on right elbow laterally with clotted blood.
(6) Lacerated wound 6.5 x 1.5cm x muscle deep on right first web space on palmer aspect with clotted blood.
(7) Multiple abrasion in 5.0 x 1.0cm area 1.0 x 1.0cm to 1/2 x 1/1/2cm on right knee cap with clotted blood.
(8) Multiple abrasions 1/2 x 1/4cm to 1/2 x 1/2cm on anterior medial aspect of right foot (17 x 4.0cm) with clotted blood.
(9) Abrasion 1.5 x 1.0cm on right great toe with clotted blood.
(10) Abrasion 2.0 x 1.0cm on left great toe anteriorly with clotted blood.
(11) Abrasion 1.0 x 1/2cm on left second toe with clotted blood. Anteriorly.
(12) Abrasion 5.0 x 1.0cm area of size 1.0 x 1/2cm to 1/2x3/4 cm on left foot anteriorly with clotted blood.
14. The cause of death in the post mortem report was opined to be hemorrhagic shock due to ante mortem Injury No. 1 and its internal manifestations, which was caused by revolver, a projectile weapon. It was further opined that injury No. 1 was sufficient in the ordinary course of nature to cause the death. All the injuries were fresh in duration having been caused prior to death. The projectile (bullet) from Injury No. 2 was picked for ballistic/serological examination. Rajendra Singh (PW8) has proved the sealed cover bag handed over to him by the SHO PS Mansarovar, Jaipur containing eight packets wrapped in cloth for depositing the same in the F.S.L., which he deposited in the F.S.L. vide receipts Exb. P/21 & Exb. P/22. Thana Ram (PW9), Constable at PS Mansarovar, Jaipur has proved arrest of the accused appellant vide Exb. P/20. Article-15 was the bullet recovered from the body of deceased, which was sent to the F.S.L. marked as Pkt. B.2.
15. Contention that since as per the post-mortem report, there was blackening and collar of abrasion around the injury and its diameter ovalty towards left side 0.3 cm suggesting that fire was opened from close range, it should be presumed that injury was caused only due to accidental fire and not intentional fire, cannot be accepted in the face of specific evidence of Shashi Sharma (PW2) that when deceased was chasing accused, he threatened him that if he continue to do so, he would fire at him and eventually he fired at him and then both grappled with each other. Deceased was subjected to severe beating by the accused, which is also evident from the fact that he apart from the firearm injury, received 12 more injuries. Though injury No. 2 was result of injury No. 1 but other 10 injuries, out of which 9 were abrasions and 1 lacerated wound, were certainly due to scuffle that ensued between the two. The cause of death was opined to be hemorrhagic shock due to ante mortem Injury No. 1 and its internal manifestations, which was caused by revolver, a projectile weapon and was sufficient in the ordinary course of nature to cause the death. In view of the fact that: (i) that there was blackening around the injury, (ii) that there was presence of collar of abrasion and (iii) that diameter of injury was only 1 x 1/2cm only, we are not inclined to agree with the opinion of Dr. Rakesh Lal (PW7) that this firearm injury was caused from a distance. But at the same time, only because fire was opened from close range and direction of the injury was downwards from the point of entry, it cannot be accepted that it was result of the accidental fire. Direction of the firearm injury and closeness of its range cannot in every situation be determinative of the fact that such injury was result of accidental fire. In deciding this question, the court will have to take into consideration the direct evidence and other attending circumstances as well.
16. Now, we have to adjudge the point whether it was a case of culpable homicide not amounting to murder or culpable homicide amounting to murder. The facts clearly show that accused and deceased both grappled with each other. Evidence of Shashi Sharma (PW2) has also proved that deceased asked her to snatch the revolver from the accused. It was thereafter that she repeatedly hit accused on his head and finally snatched the revolver from the accused but by then accused had already fired at the deceased, which injury eventually resulted into his death. Seven facts that are significant to be noticed in this behalf are that:-
1. that it was deceased, who followed the accused after he saw accused standing outside his house;
2. that accused warned the deceased not to follow him or else he would fire;
3. that the accused himself sustained injuries in the self-same incident while struggling with the deceased;
4. that incident took place suddenly on the spur of moment, in the heat of passion and accused had not taken any undue advantage because he did not repeat the fire and only once fired at the deceased;
5. that when Shashi Sharma (PW2) repeatedly hit the head of the accused by stone and snatched the revolver from the accused, he still did not fire at her.
6. that the accused did not run from the place of occurrence even after the incident.
7. that both, the accused and deceased were taken to the hospital by the police.
17. It is trite that ''knowledge'' as contrasted with ''intention'' signify a state of mental realization with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive. ''Intention'' is a conscious state in which mental faculties are aroused into actively and summoned into action.
18. Although the injury caused was sufficient in the ordinary course of nature to cause the death, but it does not necessarily follow therefrom that offender intended to cause injury of that nature. However, presumption certainly arises that he intended to cause that particular injury. In such a situation, the Court has to ascertain whether the facts and circumstances of the case are which rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case.
19. The Supreme Court in
20. The act of the accused-appellant cannot therefore be held to be culpable homicide amounting to murder but would rather be culpable homicide not amounting to murder. The case of the accused-appellant would fall within Exception 4 of Section 300 IPC as the incident took place on the spur of moment in the heat of passion and intention of the accused was not to commit murder as he did not repeat the fire, hence did not take any undue advantage.
21. Therefore, conviction of the accused-appellant deserves to be converted from offence u/S. 302 IPC to that of Part-I of Section 304 IPC.
22. In the result, the appeal is allowed in part. The conviction of accused-appellant Maniram Chaudhary S/o. Shri Sahiram for offence u/s 302 IPC is converted into one for offence u/S. 304 Part-I IPC. He is in jail for last 10 years and 7 months. He is sentenced to the period already undergone by him. He be released forthwith, if not required in any other case. Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, accused-appellant Maniram Chaudhary is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of filing of SLP against this judgment or on grant of leave, the said appellant, on receipt of notice thereof, shall appear before the Supreme Court.
