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CASE NO.: Appeal (crl.)  35 of 2006

PETITIONER: VINEET KUMAR CHAUHAN

RESPONDENT: STATE OF U.P

DATE OF JUDGMENT: 14/12/2007

BENCH: P.P. NAOLEKAR & D.K. JAIN

JUDGMENT: J U D G M E N T

D.K. JAIN, J.:

1.      This appeal under Section 2(a) of the Supreme  Court (Enlargement of Criminal Appellate Jurisdiction)  Act, 1970 has been preferred against the judgment of the  High Court of Judicature at Allahabad in Government  Appeal No. 415 of 2000.  By the impugned judgment, the  appeal filed by the State of Uttar Pradesh has been  allowed and the appellant Vineet Kumar Chauhan has  been convicted under Section 302 of the Indian Penal  Code, (\021IPC\022 for short) for causing the murder of Smt.  Premwati.  He has been sentenced to suffer  imprisonment for life.  2.      The genesis of the prosecution case, in brief, was  that on 13.10.1993 at about 11.50 a.m., one Sri Krishna  Sharma (P.W.1), husband of the deceased, lodged an  F.I.R. with the police station Majhola, District Moradabad  to the effect that on that day, at about 9.45 a.m., when  he alongwith his wife and children was watching  television, the appellant who was living opposite their  house and was a cable operator along with his servant  Dharamveer, came to their house and tried to persuade  his son-Ravindra Sharma (P.W.2) to take a cable  connection from them.  Not being interested in the cable  connection, they declined the request of the appellant  whereupon an altercation took place between the  appellant and P.W.2.  The complainant and his wife  intervened and asked the appellant to leave their house.   The appellant went to his house, brought out the licensed  revolver of his father and opened indiscriminate firing  towards complainant\022s house from the door of his house.   Some bullets hit the door of the house of Sri Krishna  Sharma and while his wife, the victim, was closing the  door, one of the bullets hit her in the jaw.  Sri Krishna  Sharma brought his injured wife to the hospital for  treatment and thereafter lodged the F.I.R.   3.      The victim was examined by Dr. Jagmal Singh,  P.W.4.  The following injuries were found on her person:   1.      Lacerated wound 1.5 cm. x .5 cm x not probed  on face, left side over left mandible, 3 cm.  below and outer to left angle of mouth.   Advised x-ray of left side fact and left side  neck. 2.      Lacerated wound .5 cm x .5 cm x skin on left  arm outer part, 4 cm. above left elbow.

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4.      Both the injuries were found to be fresh.  Injury  No.1 was alleged to have been caused by firearm but final  opinion was reserved to be given after the x-ray.  Injury  No.2 was caused by a blunt object.  On x-ray being  taken, a radio opaque shadow elongated was found in  thoracic spine in dorsal region over T 5-6. 5.      The victim remained under treatment and  supervision of Dr. D.S. Ahlawat (P.W.5).  On 15.10.1993,  she was taken to Delhi for treatment.  However, on  21.10.1993, she was again admitted in Moradabad  Hospital, where she developed bedsores.  Smt. Premwati  ultimately died on 25.3.1994.  As per the autopsy  conducted by Dr. S.P. Singh (P.W.7) on 25.3.1994, the  ante-mortem injuries were mainly deep bedsores on  various parts of the body and one old healed scar, size  1.2 cm x .5 cut, on the left face at the chin 2.5 cm. away  from medium plank thoracic spine.  On internal  examination, the doctor recovered a metallic bullet from  her spinal cord, which had caused extensive damage in  thoracic spine and paralysis in half of the body.  The  cause of death was opined to be septicemia and toxemia  due to bedsores. After investigations, charge sheet under  Sections 452 and 307 was filed against the appellant and  his father.  However, charges were framed against them  under Sections 302 and 307 IPC. 6.      In support of the case, the prosecution examined  seven witnesses, including Sri Krishna Sharma (P.W.1)  and Ravindra Sharma (P.W.2), who claimed to be the eye- witnesses.  As per testimony of P.W.5, the deceased had  suffered paralysis in both her legs due to bullet injury  sustained in the spinal cord.  The Trial Court found the  evidence to be insufficient to warrant conviction of both  the accused.  Doubting the presence of P.W.1-Sri Krishna  Sharma and P.W.2-Ravindra Sharma at the spot and  inter-alia, observing that from the report of the Ballistic  Expert it could not be established that the lead (from part  of the bullet) recovered from the spot pertained to a shot  fired from revolver recovered from the house of the  accused-Vineet Kumar and that deceased had actually  died of septicemia and toxemia owing to bedsores, as she  was not properly advised and attended to while she was  admitted in hospital and death was attributable to the  negligence and bedsore, the Trial Court directed their  acquittal. 7.      On appeal by the State, the High Court affirmed the  acquittal of Dharamveer.  Insofar as the case of the  appellant was concerned, the High Court found the  ocular evidence qua him to be perfectly in harmony with  the medical evidence.  Concluding that the appellant did  commit the offence of murder, as noted above, the High  Court convicted him under Section 302 I.P.C.  It is this  conviction and sentence which has been challenged in  this appeal.  8.      Mr. Sushil Kumar, learned senior counsel appearing  on behalf of the appellant assailed the conviction of the  appellant mainly on the ground that apart from the fact  that the Ballistic Report casts a serious doubt that the  distorted bullet allegedly recovered from the spot came  out of the seized revolver,  it was also obligatory on the  part of the prosecution to send the bullet, allegedly  recovered from the body of the deceased, for being  examined by the Ballistic Expert, so as to connect the  recovered licensed revolver of the appellant\022s father with  the crime.  It was submitted that since it was a positive

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case of the prosecution that the bullet which had hit the  deceased was fired from the seized revolver, omission to  send the bullet for ballistic examination is a serious  infirmity in the prosecution case, which assumes still  greater significance because of Ballistic Report, which  does not even establish that the remnants of the bullet  (lead), recovered from the place of incident, was of the  bullet fired from the revolver allegedly used by the  appellant.  In support, strong reliance is placed on the  decision of this Court in Mohinder Singh Vs. The  State , wherein it was observed that in a case where  death is due to injuries or wounds caused by a lethal  weapon, it has always been considered to be the duty of  the prosecution to prove by expert evidence that it was  likely or at least possible for the injuries to have been  caused with the weapon with which and in the manner in  which they are alleged to have been caused.  Reference is  also made to another decision of this Court in State of  M.P. Vs. Surpa , expressing a similar view.  Learned  counsel has also contended that all through the case of  the prosecution was that the accused was firing towards  the house of the deceased without aiming at any person  and the bullet hit the deceased accidentally when she  was closing the door of the house.  It is urged that in  case the appellant had any intention to commit the  murder of the deceased or any member of her family, he  would have gone to their house and shot them.  It is  argued that even if the occurrence is admitted to have  taken place in the manner alleged, the appellant cannot  be held guilty for the commission of offence punishable  under Section 302 IPC.  It is asserted that the occurrence  having taken place without pre-meditation, in the heat of  the passion upon a sudden quarrel, the appellant is  entitled to the benefit of Exception 4 of Section 300 IPC.  9.      Learned counsel for the State, on the other hand,  supported the view taken by the High Court.  10.     It cannot be laid down as a general proposition that  in every case where a firearm is allegedly used by an  accused person, the prosecution must lead the evidence  of a Ballistic Expert to prove the charge, irrespective of  the quality of the direct evidence available on record.  It  needs little emphasis that where direct evidence is of  such an unimpeachable character, and the nature of  injuries, disclosed by post-mortem notes is consistent  with the direct evidence, the examination of Ballistic  Expert may not be regarded as essential.  However,  where direct evidence is not available or that there is  some doubt as to whether the injuries could or could not  have been caused by a particular weapon, examination of  an expert would be desirable to cure an apparent  inconsistency or for the purpose of corroboration of oral  evidence. (See: Gurcharan Singh Vs. State of Punjab ) 11.     In Mohinder Singh\022s case (supra) on which strong  reliance is placed on behalf of the appellant, this Court  has held that, where the prosecution case was that the  accused shot the deceased with a gun, but it appeared  likely that the injuries on the deceased were inflicted by a  rifle and there was no evidence of a duly qualified expert  to prove that the injuries were caused by a gun, and the  nature of the injuries was also such that the shots must  have been fired by more than one person and not by one  person only, and the prosecution had no evidence to  show that another person also shot, and the oral  evidence was of witnesses who were not disinterested, the  failure to examine an expert would be a serious infirmity

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in the prosecution case.  It is plain that these  observations were made in a case where the prosecution  evidence was suffering from serious infirmities.  Thus, in  determining the effect of these observations, the facts in  respect of which these observations came to be made  cannot be lost sight of.  The said case therefore, cannot  be held to lay down an inflexible rule that in every case  where an accused person is charged with murder caused  by a lethal weapon, the prosecution case can succeed in  proving the charge only if Ballistic Expert is examined.   In what cases, the examination of a Ballistic Expert is  essential for the proof of the prosecution case, must  depend upon the facts and circumstances of each case.  12.     In the instant case, having regard to the ocular  evidence adduced by the prosecution, there is no reason  to discard the prosecution theory that the injury as a  result whereof Smt. Premwati suffered complete paralysis  of both the lower limbs etc. was caused by a bullet fired  from a revolver.  The nature of the injury as proved by  Dr. P.S. Ahlawat (P.W.5), under whose treatment the  deceased remained at Moradabad and Dr. S.P. Singh  (P.W.7), who had conducted the post-mortem  examination is wholly consistent with the prosecution  version.  It is clear that the bullet recovered by P.W.7 at  the time of post-mortem of the victim had traversed to  thoracic spine through the neck from the face near the  angle of the jaw, hitting the fifth thoracic vertebra, badly  damaging the underlying spinal cord.  We are therefore,  of the view that on the facts of the present case, the  absence of Ballistic Expert\022s evidence is not fatal to the  case of the prosecution, notwithstanding the fact that the  Forensic Science Laboratory, in its report dated  18.2.1991, had not expressed a definite opinion about  the bullet recovered from the place of occurrence.   13.     Insofar as the testimonies of P.W.1 and P.W.2, the  two star witnesses of the prosecution, are concerned,  from the impugned judgment, it is manifest that the High  Court, on analysis of their statements, has found these to  be trustworthy.  The High Court has observed that  testimony of these two natural witnesses is of sterling  character with no holes whatsoever.  Based on this  evidence, the High Court has found that it was the  appellant who had opened fire from the revolver from his  door, one of which had hit the victim, who had come to  close the main door of her house.  Nothing has been  shown to us so as to warrant interference with the said  finding recorded by the High Court.  Therefore, in the  context of this unimpeachable evidence, it stands proved  that the appellant had gone to the house of the deceased;  some unsavoury incident took place there; he returned to  his house in a huff; took out the revolver of his father  and fired shots towards the house of the deceased; one of  the bullets hit the deceased and the same proved to be  fatal.  Having bestowed our anxious consideration to the  evidence on record, in particular the testimony of P.W.1  and P.W. 2, we are of the opinion that the High Court  was correct in coming to the conclusion that the  appellant was responsible for causing the fatal injury to  the deceased.   We are also in agreement with the High  Court that though as per the post-mortem report the  deceased died of septicemia and toxemia because of  bedsores, the basic cause of her death was the bullet  injury caused to her by the appellant.   14.     However, the next question for consideration is  whether the offence established by the prosecution

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against the appellant is \023murder\024 \026 as held by the High  Court or \023culpable homicide not amounting to murder\024 \026  as contended on behalf of the appellant? 15.     The academic distinction between \023murder\024 and  \023culpable homicide not amounting to murder\024 has been  vividly brought out by this Court in State of Andhra  Pradesh Vs. Rayavarapu Punnayya and Another . It  has been observed that the safest way of approach to the  interpretation and application of Sections 299 and 300  IPC is to keep in focus the key words used in various  clauses of the said Sections.  Minutely comparing each of  the clauses of Sections 299 and 300 IPC and drawing  support from the decisions of this Court in Virsa Singh  Vs. State of Punjab  and Rajwant Vs. State of  Kerala , speaking for the Court, R.S. Sarkaria, J. 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 whenever a Court is  confronted with the question whether the offence is  \021murder\022 or \021culpable homicide not amounting to murder\022,  on the facts of a case, it will be convenient for it to  approach the problem in three stages. The question to be  considered at the first stage would be, whether the  accused has done an act by doing which he has caused  the death of another. Proof of 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 \023culpable homicide\024 as defined in  Section 299. If the answer to this question is prima facie  found in the affirmative, the stage for considering the  operation of Section 300, Penal Code, is reached. This is  the stage at which the court should determine whether  the facts proved by the prosecution bring the case within  the ambit of any of the four clauses of the definition of  \021murder\022 contained in Section 300. If the answer to this  question is in the negative the offence would be \021culpable  homicide not amounting to murder\022, punishable under  the first or the second part of Section 304, depending,  respectively, on whether the second or the third clause of  Section 299 is applicable. If this question is found in the  positive, but the case comes within any of the exceptions  enumerated in Section 300, the offence would still be  \021culpable homicide not amounting to murder\022, punishable  under the first part of Section 304, Penal Code.  It was,  however, clarified that these were only broad guidelines  to facilitate the task of the Court and not cast iron  imperative.   16.     Reverting to the facts in hand, as noted above, it  stands proved that there being a direct causal connection  between the hitting of the bullet, fired by the appellant, to  the deceased and her death, the death of the deceased  was caused by the appellant.  However, having regard to  the circumstances, briefly enumerated above, particularly  the manner in which the appellant fired the shots, in our  view, the appellant could not be attributed the mens rea  requisite for bringing the case under clause (3) of Section  300 IPC.  Concededly, there was no enmity between the  parties and there is no allegation of the prosecution that  before the occurrence, the appellant had pre-meditated  the crime of murder.  We are inclined to think that  having faced some sort of hostile attitude from the family  of the deceased over the cable connection, a sudden  quarrel took place between the appellant and the son of  the deceased, on account of heat of passion, the  appellant went home; took out his father\022s revolver and

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started firing indiscriminately, and unfortunately one of  the bullets hit the deceased on her chin.  At the most, it  can be said that he had the knowledge that the use of  revolver was likely to cause death and, as such, the  present case would fall within the third clause of Section  299 IPC.  Thus, in our opinion, the offence committed by  the appellant was only \023culpable homicide not amounting  to murder\024.    Under these circumstances, we are inclined  to bring down the offence from first degree \023murder\024 to  \023culpable homicide not amounting to murder\024,  punishable under the second part of Section 304 IPC.   17.     Consequently, we partly allow the appeal; set aside  the conviction of the appellant under Section 302 IPC  and instead convict him under Section 304 Part II IPC.   The sentence of rigorous imprisonment for five years  would meet the ends of justice.