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CASE NO.: Appeal (crl.)  178 of 2007

PETITIONER: Anil

RESPONDENT: State of Haryana

DATE OF JUDGMENT: 10/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. SINHA,  J :

1.      Appellant is before us aggrieved by and dissatisfied with a judgment  and order dated 6.11.2006 passed by a Division Bench of the High Court of  Punjab and Haryana at Chandigarh in Criminal Appeal No. 372-DB of 2003  and Criminal Revision No. 1475 of 2003 affirming the judgment and order  dated 27.03.2003 convicting him for commission of an offence under  Section 302 of the Indian Penal Code and Section 27 of the Arms Act.

2.      The family of the appellant and the family of Dinesh (deceased) were  residents of the same village.  Their houses are intervened only by a road.   The deceased and Manjit, brother of the appellant, were studying together in  the same college.  They were, however, not on speaking terms.  Altercations  had also taken place between the deceased and the appellant during  Panchayat elections.  Appellant thereafter had allegedly been threatening  him.  A First Information Report was lodged by Rajpal Singh, uncle of the  deceased to that effect.  The wedding of his niece had been fixed on  17.02.2002.  The marriage celebrations had been going on.  Appellant and  Manjit, however, took objections to the singing etc. by the ladies, and they  used to threaten them.  On that account their festive mood would be turned  into grief.  On 14.02.2002 at about 8 p.m. Rajpal came out of his house.   Appellant accosted him asking why such a noise in the neighbourhood was  being made.  He ignored him and continued walking.  Dharmpal father of  the appellant made a remark that it did not matter as he would come back by  the same way.  He was returning home at about 11 p.m. when Dharmpal  caught hold of him.  Appellant came at the spot armed with a gun.  They  started beating him.  Rajpal called out for his nephew (Dinesh) and as soon  as he opened the door, a shot was fired by the appellant at him.  Almesh,  another nephew (PW-10) of the first informant was also following Dinesh.   He also witnessed the occurrence.  Appellant, his father and brother went  inside his house.  After some time, however, the appellant came out with his  brother Manjit and started walking.  Dharmpal fired shots in the air.   

3.      Rajpal started proceeding to the police station which was about 11  kms. from the village.  On his way, however, he met Satpal Singh Sub- Inspector of Police at about 2.00 a.m. and informed him about the incident.   The First Information Report was recorded at about 3.10 a.m.   

4.      In the trial, the prosecution inter alia examined Rajpal (PW-8) and  Almesh (PW-10).  On the basis of the evidence brought on record by the  prosecution, while acquitting Dharampal and Manjit, the learned Sessions  Judge found the appellant guilty of committing murder of Dinesh.  He was  sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.  5,000/-.  He was also sentenced to undergo imprisonment for a period of two  months and to pay a sum of Rs. 1,000/- as fine under Section 27 of the Arms

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Act.  As noticed hereinbefore, the High Court has affirmed the said  judgment of conviction and sentence

5.      Mr. Jawahar Lal Gupta, learned senior counsel appearing on behalf of  the appellant, took us through the First Information Report, the depositions  of PWs 8 and 10 as also the medical evidence.  It was contended that the  medical evidence does not corroborate the ocular evidence.  The learned  Senior Counsel urged that from a perusal of the injuries noticed by the  Autopsy Surgeon, it would appear that the entry point of the bullet was 12  cms from the right nipple and the exit point was on the left side, whereas  Rajpal in his deposition categorically stated that the deceased suffered fire  arm injuries near the right nipple.  

6.      The learned counsel submitted that as the shot was allegedly fired  when Dinesh was opening the door when he was very much inside the  house, it is improbable that he received gun shot injury from a fire from a  distance of about 15 feet, particularly, when the appellant was not said to be  standing just in front of the door.  He further contended that Almesh could  not be an eye-witness to the occurrence as he was following Dinesh and,  thus, could not have seen as to who had fired the shot.  The prosecution story  having been disbelieved in part insofar as Manjit and Dharmpal having been  acquitted, the courts below misdirected itself in convicting the appellant for  murder of the deceased.  In any event, the learned counsel urged that as  nobody could anticipate that the fired shot would hit Dinesh; Exception 4 to  Section 300 of the Indian Penal Code is attracted in their case.

7.      Mr. Rajeev Gaur, learned counsel appearing on behalf of the State,  however, on the other hand, submitted that the doctrine of falsus in uno,  falsus in omnibus is not applicable in India.  It was contended that the  discrepancy between the medical evidence and the ocular evidence is not  such which would lead to the conclusion that the appellant was innocent.   

8.      The following injuries were found on the person of the deceased:

"1. Lacerated wound 2.5 cms x 1.5 cms was  present over right lateral chest wall in the mid  aillary line,  12 cms from right nipple.  Margins of  the wound were inverted.  On dissection under  lying muscles were lacerated.  There was fracture  of 6th, 7th and 8th ribs on right side.  Right pleura  was lacerated.  Track of the wound was going  medially, downwards and anteriorly.  Middle and  lower lobes of right lung were lacerated  extensively.  Right pleural cavity was full of blood.   Extensive lacerations were present in heart, middle  and lower lobes of left lungs.  Left pleural cavity  was full of blood.  Pericardium and left pleura  were lacerated.

2. There was a oval shaped lacerated wound  present over left anterior aspect of chest wall 4 x  3.5 cms margins were inverted, 3 cm below and  medial to left nipple, 7.5 cms lateral to mid line.  Clotted blood was present.  Intercostals muscles  were lacerated\005"

9.      The cause of death in the opinion of Dr. A.S. Ahlwat (PW-9) was  extensive haemorrhage and shock as a result of the injuries which were ante- mortem in nature and sufficient to cause death in normal causes of nature.   According to his opinion, "the injuries had been caused by firearm".   

10.     The death of Dinesh being homicidal in nature is not in dispute.  In a  case of this nature, the evidence of the prosecution witnesses, in our opinion,  should be considered keeping in view the backdrop of events.  

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11.     It is not in dispute that there was a marriage in the family.  Marriage  of Manisha was fixed on 17.02.2002.  It has also not been disputed that as of  custom the ladies sing songs and play music for the ensuing marriage in the  family.  Objections thereto were taken by the appellant and his family.

12.     The incident had taken place at about 11 p.m.  The First Information  Report was recorded at about 3.10 a.m.  A death had occurred.  The dead  body was lying in the house.  The first informant and other had also been  threatened.   

13.     In the aforementioned situation, the First Information Report must be  held to have been lodged without any delay.  A First Information Report, as  is well-known, should be treated to be an encyclopaedia.  Satpal Singh, Sub- Inspector (PW-12) came to the village immediately.  He conducted the  proceedings under Section 174 of the Code of Criminal Procedure and  recorded the statements of the witnesses.  According to the said witness,  they reached Mahra turning at about 1.45 a.m. and the complainant came to  the said place almost immediately thereafter.

14.     Mr. Gupta contended that the investigating officer had not pointed out  the spot from where the witness saw the occurrence in the site plan.  This  may be so.  The site plan, however, shows all other details.  It is not of much  dispute that Rajpal was being assaulted on the way.  There was a cattle shed.   The house of the appellant is by the side of the house of his brother Inder  Singh.  The distance between the door of the complainant’s house and that  of Dharmpal was about 20 feet.

15.     There is furthermore no dispute that the informant could see the  incident.  Appellant alone was armed with the gun.  The other accused  Dharmpal and Manjit were not.

16.     As Rajpal was being assaulted, it was natural for him to give a call to  his nephews.  It is also but natural that they would respond to his call.   Nobody could have thought that the appellant would fire a shot at Dinesh.   Both the eye-witnesses had stated about firing of the shot.  Almesh might  not have seen the actual firing a shot but as soon as Dinesh had fallen down  on receipt of the fire arm injury, he could have seen the appellant with a gun.   Appellant, his father and brother went inside their house which is almost  opposite to theirs.  There is no reason as to why we should disbelieve the  testimonies of PWs 8 and 10.

17.     Rajpal might have stated that the deceased received bullet injuries on  the left side of his body.  The injury on the left side of the body of the  deceased was apparent.  When a shot is fired all of a sudden, it is difficult  for anybody to give a vivid description of the entire incident.  One should  not forget that he was being assaulted.  Dinesh answered to his call and as  soon as he opened the door after he received the gun shot injury.  In what  position Dinesh was standing at the fateful moment can only be a matter of  guess.  It could not have been noticed by PW-8.  In our opinion, it was also  not possible.

18.     We may notice that in Brij Lal v. State of Haryana [(2002) 1 SCC  700], this Court in almost similar situation held: "3. We heard Mr Sushil Kumar, learned Senior  Counsel for the appellant. Learned counsel for the  appellant pointed out that PW 3 Mani Ram, who  was an eyewitness and gave the FI statement,  stated that Brij Lal fired a shot at Dharam Paul  which hit the left eyebrow of Dharam Paul and as a  result thereof his skull from behind was blown off  at the exit point and it caused the instantaneous  death of the deceased and this evidence, according  to the appellant ’ s counsel, is weak, false and  discrepant and the occurrence might not have

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happened as alleged by the prosecution. It is  argued that as per the inquest report the main  injury on the deceased was shown to have been  caused on the back side of the head, whereas the  medical evidence showed that injury was caused  by a firearm from the front side of the deceased.  The investigating officer could not detect the entry  wound possibly because the head must have been  smeared with blood. The evidence of two  eyewitnesses clearly showed that the appellant first  shot the deceased Dharam Paul and there was a  second shot at PW 4 Ram Kishan. It is true that  PW 3 deposed that the appellant first shot his  brother Dharam Paul on the back side of the skull.  But the medical evidence shows that this shot hit  on the eyebrow. Based on this, it was contended  that it was not the appellant but somebody else  hiding on the rear side who must have caused this  injury. We do not find any force in this contention.  The incident happened all of a sudden and when  firing took place it would be difficult to state on  which part of the body the bullet hit. In the instant  case, the evidence of PW 4 shows that he himself  sustained an injury at the hands of the appellant. It  is clearly proved that it was the appellant and none  else who was responsible for the crime. The minor  discrepancies in the evidence only lend assurance  to the credibility of the prosecution case."

19.     We, therefore, cannot accept the submission of Mr. Gupta that PWs 8  and 10 are not reliable witnesses.

20.     Mr. Gupta has placed strong reliance on Pratap Singh and Another  v.  State of M.P. [(2005) 13 SCC 624] wherein this Court was concerned with  reversal of a judgment of acquittal by the High Court.  The High Court,  while reversing the judgment of acquittal, made certain comments about the  investigating officer.  In that case, it was opined that preparation of a site  plan was necessary as the only eye-witness who had been cutting grass was  at a distance of 105 feet from the place of occurrence alleging that he having  noticed the appellants therein proceeding towards the deceased with barchhi  and lathi not only started running towards the place of occurrence but in fact  climbed upon a mound and saw the entire occurrence.  It was in the  aforementioned peculiar fact situation this Court observed:

 "\005If a site plan has been prepared and if during  the investigation it has been brought to the notice  of the investigating officer that there were some  other witnesses whose evidence would be material  for the purposes of proving the prosecution case,  namely, witnessing the occurrence by two  independent witnesses; we do not see any reason  why evidence of such witnesses should not have  been recorded. It is correct that it is the duty of the  investigating officer to produce the said statements  with the charge-sheet but, if the same had not been  done, the benefit thereof must be given to the  defence and not to the prosecution\005"

21.     It is, however, not a case where the site plan at all was prepared.

22.     The site plan showed the material particulars.  The place where the  complainant was being assaulted has clearly been stated in the First  Information Report as also in his deposition by Rajpal.  Almesh admittedly  was inside the house.  We, therefore, do not see any reason to throw out the

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prosecution case only on the ground that in the site plan the investigating  officer had failed to pinpoint the place where the witnesses were standing at  the time of occurrence.  The investigating officer had accepted that he failed  to do it.  This, however, does not take the defence case any further as it has  been proved, it will bear repetition to state, that the appellant was armed  with a gun and he was seen firing a shot and he has also been seen leaving  the place of occurrence with the gun in his hand.

23.     The High Court, in our opinion, cannot be said to be wrong in  affirming the judgment of conviction of the appellant and acquittal of the  other passed by the learned Sessions Judge.  In a case of this nature, sharing  of common intention with the appellant by Dharmpal and Manjit for  commission of the murder of Dinesh cannot be held to have been  established.

24.     So far as submission of the learned counsel as regards applicability of  Exception 4 of Section 300 of the Indian Penal Code is concerned, the High  Court had recorded an order of acquittal not on the ground that Dharmpal  and Manjit did not take part in the occurrence but proceeded on the basis  that they did not share the common intention.  It is, therefore, not a case  where the statements of the witnesses were to be disbelieved by the courts.

25.     The submission of Mr. Gupta that the appellant had no intention to  commit murder cannot be accepted.  He had fired a shot from the gun which  he was carrying.  There was no provocation.  The shot was fired on a vital  part of the body.  Dinesh was not carrying any arm.  He merely came out  probably to ascertain what was happening.

26.     There was no immediate provocation.  As the deceased was not armed  with a gun and was merely opening the door, the appellant must be held to  have taken undue advantage of his position.

27.     In Narayanan Nair Raghavan Nair v. State of Travancore \026 Cochin  [AIR 1956 SC 99], this Court opined: "It was then argued that this was a case of a  sudden fight and so the case falls within the fourth  Exception to Section 300 of the Indian Penal Code.  It is enough to say that the Exception requires that  no undue advantage be taken of the other side. It is  impossible to say that there is no undue advantage  when a man stabs an unarmed person who makes  no threatening gestures and merely asks the  accused’s opponent to stop fighting. Then also, the  fight must be with the person who is killed. Here  the fight was between Velayudhan (PW 1) and the  appellant. The deceased had no hand in it. He did  not even try to separate the assailants. All he did  was to ask his son-in-law Velayudhan (PW 1) to  stop fighting and said that he would settle their  dispute."

28.     In Subhash Shamrao Pachunde v. State of Maharashtra [(2006) 1 SCC  384], this Court observed:

"15. The ingredients of the said Exception 4 are (i)  there must be a sudden fight; (ii) there was no pre- meditation; (iii) the act was committed in a heat of  passion and (iv) the assailant had not taken any  undue advantage or acted in a cruel manner. In the event the said ingredients are present, the  cause of quarrel would not be material as to who  offered the provocation or started assault.  Indisputably, however, the occurrence must be  sudden and not pre-meditated and the offender  must have acted in a fits of anger.

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16. In Rajendra Singh and Ors. v. State of Bihar,  this Court held: "So far as the third contention of Mr. Mishra is  concerned, the question for consideration would be  as to whether the ingredients of Exception 4 to  Section 300 of the Indian Penal Code can be said  to have been satisfied. The necessary ingredients  of Exception 4 to Section 300 are: (a) a sudden fight; (b) absence of premeditation; (c) no undue advantage or cruelty. but the occasion must be sudden and not as a cloak  for pre-existing malice. It is only an  unpremeditated assault committed in the heat of  passion upon a sudden quarrel which would come  within Exception 4 and it is necessary that all the  three ingredients must be found. From the  evidence on record it is established that while the  prosecution party was on their land it is the  accused who protested and prevented them from  continuing with ploughing but when they did not  stop the accused persons rushed to the nearby plot  which is their land and got weapons in their hands  and assaulted the prosecution party ultimately  injuring several members of the prosecution party  and causing the death of one of them while they  were fully unarmed. In this view of the matter on  scrutinizing the evidence of the four eyewitnesses  PWs 2, 4, 7 and 8 who have depicted the entire  scenario it is not possible for us to agree with the  submission of Mr. Mishra, learned Senior Counsel  appearing for the appellants that the case is one  where Exception 4 to Section 300 would be  applicable. We, therefore, reject the said  submission of the learned Counsel." 17. Even if it be assumed that responses to the  questions put to the deceased or the complainant  caused provocation, the same evidently was  because of the pre-existing malice and the bias  which the Appellant had against them. Moreover,  the manner in which the deceased and the  complainant were assaulted show that the  assailants took undue advantage of the situation as  they fell into the gutter and were, thus, in a  helpless condition. 18. In Prabhu and Ors. v. State of M.P. 1991  Suppl. (2) SCC 725 a three Judge Bench of this  Court rejected a similar contention in a case where  the accused inflicted more than one injury stating : "...The evidence, of PW 4, Dr. C.K. Datal,  however, shows that the deceased was belaboured  mercilessly. There were innumerable contusions  on the entire body of the deceased from head to  toe. The wrist, humerus, etc. were fractured and  the whole body was full of rod marks. There were  several contused lacerated wounds on the entire  face and the left eye was bleeding. The totality of  the injuries caused to the victim clearly supports  the finding of both the courts below that the  appellants went on belabouring the deceased till he  died on the spot. 19. In Thangaiya v. State of T.N., relying upon a  celebrated decision of this Court in Virsa Singh v.  State of Punjab 1958 SCR 1495, the Division  Bench observed:

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"17. These observations of Vivian Bose, J. have  become locus classicus. The test laid down by  Virsa Singh case for the applicability of Clause  "thirdly" is now ingrained in our legal system and  has become part of the rule of law. Under Clause  "thirdly" of Section 300 IPC. culpable homicide is  murder, if both the following conditions are  satisfied: i.e. (a) that the act which causes death is  done with the intention of causing death or is done  with the intention of causing a bodily injury; and  (b) that the injury intended to be inflicted is  sufficient in the ordinary course of nature to cause  death. It must be proved that there was an intention  to inflict that particular bodily injury which, in the  ordinary course of nature, was sufficient to, cause  death viz. that the injury found to be present was  the injury that was intended to be inflicted. 18. Thus, according to the rule laid down in Virsa  Singh case even if the intention of the accused was  limited to the infliction of a bodily injury sufficient  to cause death in the ordinary course of nature, and  did not extend to the intention of causing death, the  offence would be murder. Illustration (c) appended  to Section 300 clearly brings out this point" Therein it was held that there is no fixed rule that  whenever a single blow is inflicted Section 302  would not be attracted. 20. No hard and fast rule, however, can be laid  down as different situations may arise having  regard to the factual matrix involved therein."

29.     Having regard to the ratio laid down in the said decisions, we cannot  accept Mr. Gupta’s second submission also.

30.     For the reasons aforementioned, there is no merit in this appeal which  is dismissed accordingly.