Deo Narayant Thanvi, J.@mdashBy the instant Criminal Appeal filed u/s 374 Code of Criminal Procedure , accused Appellant Narendra Singh has challenged his conviction and sentence recorded by the learned Addl. Sessions Judge (FT), Jodhpur in Sessions Case No. 104/2002 vide his judgment dt. 27.11.2002 on the following counts:
Under Section 450 Indian Penal Code Seven years R.I. along with a fine of Rs. 1000/- and in default
to further undergo one month''s R.I.
Under Section 302 Indian Penal Code Life imprisonment along with a fine of Rs. 2000/- and in default,
to further undergo two month''s R.I.
Under Section 3/25 Arms Act One year''s R.I. along with a fine of Rs. 500/- and in default, to further
undergo 15 days.
2. Facts leading to this appeal are that one FIR was lodged on 28.04.2002 by Gajendra Singh at Police Station, Pipar City, wherein he stated that his brother''s marriage was to be solemnized on 30.04.2002, therefore, his family members and relatives assembled and were standing in the chowk. At about 10.50 PM, accused Narendra Singh suddenly came out from his house with gun and shouted that he will not leave anybody and accordingly fired the gun with the result Pradeep Singh received the gun shot injury and fell down. He was taken to the hospital, where he died. Accordingly to the FIR, the incident took place with regard to dispute about right of way. The police registered a case u/s 302 Indian Penal Code and after investigation, accused Appellant Narendra Singh was charge sheeted under Sections 450, 302, 307 and 3/25 Arms Act. Learned ACJM committee the case to the Court of Sessions at Jodhpur, who transferred the same before the learned Addl. Sessions Judge, F.T., Jodhpur. After hearing the arguments on charge, the learned trial Judge discharged the accused Appellant u/s 307 Indian Penal Code but framed charges under Sections 450, 302 and 3/25 Arms Act to which he pleaded not guilty. The prosecution examined 15 witnesses. The statement of the accused was recorded u/s 313 Code of Criminal Procedure . He also appeared himself as a defence witness being DW 1. After hearing the documents on charge, the learned trial Judge convicted and sentenced the accused Appellant as above.
3. We have heard learned Counsel for the Appellant as well as the learned Public Prosecutor and Mr. K.S. Rathore appearing for the complainant and also re-appreciated the evidence on record.
4. Learned Counsel for the Appellant has not disputed the homicidal death of deceased Pradeep Singh but contended that the present case is not the one in which the accused may be held guilty for culpable homicide amounting to murder punishable u/s 302 Indian Penal Code. According to him, at the most, the case falls within the purview of Exception IV of Section 300 Indian Penal Code because in this case, there was neither any intention nor any knowledge of the accused Appellant to kill deceased Pradeep Singh, who simply attended the marriage and intervened when the accused Appellant came with the gun from his room. Learned Counsel for the Appellant further submits that the accused is also the relative of the complainant party and there was a dispute about entry from the ''pol'' of the house of the accused and on account of this dispute of right of way, the accused did not attend the marriage and on the contrary, on seeing the invitees, he started shouting and fired for which he never intended to kill deceased Pradeep Singh, who was the cousin brother of complainant Gajendra Singh. According to the learned Counsel, this is a case of sudden provocation and the accused took no advantage to act in a cruel and unusual manner. In this regard, the learned Counsel for the Appellant has placed reliance on the cases of
5. Per contra, the learned Public Prosecutor and the learned Counsel for the complainant have vehemently argued that it is a case which falls u/s 302 read with Section 301 Indian Penal Code. According to them, even if there was no motive to kill deceased Pradeep Singh, the accused can be held guilty on the basis of doctrine of transfer of malice. Learned Counsel submits that whatever evidence has been brought on record, it appears that the accused Appellant first came out from his house without gun and thereafter when hot exchange took place between the complainant party and the accused Appellant, he entered into his house, came out with the gun and fired at deceased Pradeep Singh. This shows the mens rea of the accused Appellant to kill deceased Pradeep Singh and it is not a case falling u/s 304 Indian Penal Code Part I or Part II Indian Penal Code but is a clear case of murder punishable u/s 302 Indian Penal Code. In this regard, he has drawn our attention to the testimony of some of the witnesses, which we would refer later on and also placed reliance on the cases of Hari Shankar v. State of Mysore, reported in 1979 U.J. (SC) 659 ,
6. Having given our anxious consideration on the rival contentions put forth, we would like to first discuss the evidence on record with regard to applicability of Section 301 Indian Penal Code and also to under what category, the offence falls.
7. Firstly, we take up the case u/s 450 and Section 3/25, Arms Act. To these offences, if we turn to FIR Ex.P/5 lodged by Gajendra Singh, PW 7, it is stated that at 10.15 PM, when he and his relatives were standing in the chowk of their house after having taken their meals, accused Appellant Narendra Singh all of a sudden came out from his house with gun and exhorted that he would not leave any body alive. Before they could understand anything, the accused fired at Pradeep Singh, whereby he fell down and in the hospital, he died. In his Court statement, Gajendra Singh PW 7 has stated that when he and all his relatives after taking meals, were standing in the chowk, accused Narendra Singh came from the old way and started Filthylanguage. When they tried to make him understand not to use the abusive language went inside his house from the window and came out with a gun and exhorted that he would not leave anyone alive and fired at Pradeep Singh, who had tried to pacify Appellant Narendra Singh. Similar versions have been deposed by Bhabhut Ram PW 3, Pukha Ram PW 4, Ishwar Singh PW 5 and Dalpat Singh PW 6. All these witnesses have stated that there was no dispute between deceased Pradeep Singh and accused Appellant Narendra Singh. The informant of FIR is Gajendra Singh, PW 7, who is said to be the nephew in distant relation and the dispute was with him with regard to right of way. In this regard, if we further look into the site plan Ex.P/6, point ''A'' is the place, where deceased Pradeep Singh was standing and from there, he came at point ''X'', where accused Narendra Singh fired at deceased Pradeep Singh. Accused is said to have come from his adjoining house, which is on the eastern side of the'' pol''. This shows that the accused entered into the ''pol'' which is said to be the disputed portion of the entry and if this site plan is looked into, from the'' pol'' at point ''X'', accused fired at Pradeep Singh, whereby he died. This evidence, if looked into in the light of the site plan, shows that of course, there is a contradiction in the testimony of Gajendra Singh, PW 7 with regard to the fact that the accused Appellant first came unarmed and started filthy language and then went inside his house and came out with a gun and fired at Pradeep Singh on one hand and on the other, he stated in the FIR that accused Appellant Narendra Singh all of a sudden came out from his house with gun and exhorted that he would not leave anybody alive and fired at Pradeep Singh, whereby he died. The unlawful entry of the accused Appellant through ''pol'' in the house of Gajendra Singh, where marriage procession was going on and ''Baratis'' were taking their feast, brings the act of the accused punishable u/s 450 Indian Penal Code which deals with the house trespass in order to commit offence punishable with imprisonment for life and his intention was to kill someone with his gun for which he was having no licence, punishable u/s 3/25 of the Arms Act.
8. Coming to the offence u/s 302 Indian Penal Code, there is a contradiction in the testimony of the prosecution witnesses as to whether the accused Appellant first came unarmed and then went to his house back and came out with the gun on one hand and on the other, whether he came initially with the gun. However, we can gather from the statements of the prosecution witnesses that the accused Appellant came out from his house, entered into the ''pol'' with gun and started using filthy language to the family members of Gajendra Singh, PW 7. Deceased Pradeep Singh, who was cousin brother of Gajendra Singh came to rescue and tried to pacify the accused Appellant, then he fired at Pradeep Singh. This act of the accused Appellant is undoubtedly an intentional act of killing but if we take up this case from another angle, it is also undisputed as stated by the prosecution witnesses that there was no enmity between deceased Pradeep Singh and accused Appellant Narendra Singh. The enmity of accused was with complainant Gajendra Singh, PW 7, who are inter se uncle and nephew and when deceased Pradeep Singh came to intervene, the accused fired at him. This shows that there was no motive on the part of the Appellant to kill Pradeep Singh and he acted suddenly. Firing one gun shot reveals that he never acted in a cruel or unusual manner but his act can be termed as an act done in a heat of passion upon a sudden quarrel by intervention of deceased Pradeep Singh. When such act is committed, it falls within the category of Exception IV of Section 300 Indian Penal Code according to which the culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
9. In this regard the law cited by the learned Counsel for the Appellant by and large applies to the facts of the present case. On the contrary, the facts of the cases cited by the learned Counsel for the complainant are quite distinguishable, because in Hari Shankar''s case (supra), accused Appellant intended to kill PW 15 but he killed somebody else. In Jagpal Singh''s case (supra), the accused was aiming to kill someone but another person was killed, therefore, on the doctrine of transfer of malice as defined in Section 301 Indian Penal Code, he was held guilty u/s 302 Indian Penal Code. In our view, both the citations are not helpful to the facts of the present case, because the present case is not based on the doctrine of transfer of malice as defined in Section 301 Indian Penal Code as the accused had fired at deceased Pradeep Singh, who came to intervene and tried to pacify him.
10. In Suresh Chandra''s case (supra) cited by learned Counsel for the complainant, mere sudden fight and absence of premeditation was not held to be sufficient to bring the case within the purview of Exception IV of Section 300 Indian Penal Code by the Hon''ble Supreme Court but it further requires that the offender should not have taken undue advantage or acted in cruel or unusual manner.
11. Here, in the present case, as we have discussed above, the accused Appellant Narendra Singh had no motive to kill deceased Pradeep Singh but he fired when the deceased came to intervene. This act of the accused cannot be said to be an act done in a cruel or unusual manner.
12. In view of the above discussion, we are of the view that the case of the present accused Appellant falls within the category of Exception IV of Section 300 Indian Penal Code and he deserves to be held guilty u/s 304 Part I Indian Penal Code, instead of Section 302 Indian Penal Code. However, the guilt of the accused Appellant u/s 450 and Section 3/25, Arms Act deserves to be confirmed.
13. Consequently, we allow this appeal in part. While maintaining the conviction and sentence of the Appellant Narendra Singh under Sections 450 and 3/25 Arms Act, recorded by the learned Addl. Sessions Judge (FT), Jodhpur vide his judgment dt. 27.11.2002, his conviction u/s 302 Indian Penal Code is altered to Section 304 Part I Indian Penal Code and he is sentenced to the period already undergone, which is said to be more than seven years and four month''s along with a fine of Rs. 10,000/- and in default, to further undergo one year''s R.I. His conviction and sentence u/s 450 Indian Penal Code with 7 years R.I. and a fine of Rs. 1000/- and in default, to further undergo one months R.I. and also u/s 3/25 of the Arms Act, which is one years R.I. and a fine of Rs. 500/- and in default to further undergo 15 days R.I., are maintained. All the sentences are to run concurrently. He shall be set at liberty forthwith, if not required in any other case, on depositing the amounts of fine awarded by the trial Court and this Court on different counts, else he will serve out the sentences, awarded as above in default of payment of fine.
14. Out of the fine recovered Rs. 10,000/- shall be paid to the legal heirs of deceased Pradeep Singh, which escaped from being mentioned in the operative portion of the judgment sent for compliance on the same day.
