A HI6H COURT OF CHHATTCSGARH AT BILASPUR Coram: Hon'ble Mr.T. P.5harma <& Hon'ble Mr.R.L.Jhanwar. JJ. Criminal Appeal No.992 of 2007 Manoj Kumar Tiwari Versus The State of Chhattisgarh JUbGMENT FOR CONSIbERATCON Sd/- T.P. Sharma Judge Hon'ble Mr.R.L.Jhanwar, J. Sd/- R.L. Jhanwar Judge Post for Judgment on : 8/3/2010 Sd/- T.P.Sharma Judge HIGH COURT OF CHHATTESGARH AT BILASPUR Criminal Appeal No.992 of 2007 Coram: HON'BLE MR.T.P.SHARMA <& HON'BLE MR.R.L.JHANWAR, JJ. APPELLANT RESPONDENT Manoj Kumar Tiwari, son of Hiralal, aged 34 years, resident of Doga, Post beosar, Police Station Jiawau, District Sidhi, at present posted at Fourth Battalion, Post Toroki, Chhattisgarh. Versus The State of Chhattisgarh Through P.S. Antagarh Dist. Uttar Bastar, Kanker (C.G.) (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CObE OF CRIMINAL PROCEDURE, 1973) Present:- Mr.Surendra Singh, Senior Counsel with Mr.Ravish Verma and Mr.Neeraj Mehta, counsel for the appellant. Mr.Ashish Shukla, Asst. Public Prosecutor for the State. (JUDGMENT) (belivered on 8th March, 2010) The judgment of the Court was delivered by T.P.Sharma, J.:- 1. Challenge in this appeal is to the judgment of conviction <& order of sentence dated 16.10.2007 passed by the Additional Sessions Judge (F.T.C.), Bhanupratappur, bistrict Uttar Bastar Kanker in Sessions Trial No.61/07, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for the commission of culpable homicidal death of deceased Rohni Prasad Dubey amounting to murder convicted under Section 302 of the Indian Penal Code and sentence to undergo imprisonment for life and to pay a fine of Rs.1000/-, in default of payment of fine to further undergo rigorous imprisonment for six months. 2. Conviction is impugned on the ground that without there being any iota of evidence that the appellant has shot fired upon the deceased and caused his death, the Court below hos convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. Case of the prosecution, in brief, is that the appellant and deceased Rohni Prasad Dubey were working in the same department and were posted at Camp Tadoki, Police Station Antagarh, bistrict Kanker. On the fateful day of 28.1.2005, sometime prior to the incident on account of unhealthy words used by the deceased Rohni Prasad Dubey, the appellant was annoyed and feeling uncomfortable. He along with the deceasedand other force was deployed at Tadoki for fighting fight with nuxlites. Arms i.e. S.L.R. rifle and cartridges were issued to the appellant including other officers. The appellant was holding S.L.R. rifle and cartridges issued to him. At the time of commission of offence at about 7-8 p.m. while Constable Ramlal Markam (PW-6) was present in the room of Aatmaram, the appellant came with S.LR. rifle and set in the bed of Aatmaram, he was angry on account of behavior of the deceased and he abused/at the same time, Head Constable Rohni Prasad Dubey (since deceased) came and demanded his rifle, some scuffle took place between Rohni Prasad bubey and the appellant, both were snatching rifle which the appellant was holding, then the appellant has shot fired from rifle and caused injury to Rohni Prasad Dubey and Rohni Prasad bubey fell down. Witnesses present in the room were fled. He again shot fired four times and went to his room. Matter was immediately intimated to Company Commander Ajab Singh (PW-5) who was posted and present at Antagarh through wireless, he immediately proceeded for Tadoki where dead body of Rohni Prasad Dubey was lying in the room, the appellant was inside his room. He demanded rifle from the appellant, the appellant came out from the room and gave rifle and five empty cartridges to him, he went with S.L.R. rifle and alive cartridges to Police Station Antagarh and lodged the F.I.R.vide Ex.P/20. S.L.R. rifle and five empty cartridges were seized from Ajab ^ l^ %. tg S^5~^SS4% Singh (PW-5) vide Ex.P/21. Merg intimation was also recorded vide Ex.P/19. Investigating officer proceeded for the scene of occurrence and after summoning the witnesses vide Ex.P/28, prepared inquest over the dead body of deceased Rohni Prasad Dubey vide Ex.P/29. Dead body of the deceased was sent for autopsy to Community Health Centre, Antagarh vide Ex.P/4. Autopsy was conducted by Dr.B.K.Ramteke (PW-3) vide Ex.P/5 and following injuries over the body of the deceased, i) One enty wound on the medial of the shoulder joint on theapex of scapula on the scapular region, size 2 i- cms. x 2 ? cms. ii) One exist wound over lift side scapular region, size 7 i" x 3 i" x 2" iii) One exist wound over left side of 7th rib over intra scapular region, size 3 ?" x 1 i" x 1" iv) One exist wound over 9 rib, size 1" x i-" x ?". Point black was found over injury No.l. v) 4th, 6th, 7th, 8th and 9th left ribs were found fractured. Left lun9 was found ruptured. Right and left article and vertical of the heart was ruptured by shot gun injury. Mode of death was shock as a result of gun shot injury. One used bullet stained with blood, bloodstained soil and plain soil were recovered from the spot vide Ex.P/10. One bullet was also sent for examination which he returned after sealing the same. buring the course of investigation, identity card (Ex.P/1) and appointment certificate of the appellant (Ex.P/2) were seized from him vide Ex.P/3. Spot map was prepared by the investigating officer vide Ex.P/8. Patwari also prepared spot map vide Ex.P/9. Bloodstained clothes of the deceased and one bullet were seized after autopsy vide Ex.P/11. The appellant was also sent for medical examination. He was examined by the doctor and opined that condition of the appellant was normal. Arms issue register was seized vide Ex.P/23. Copy of the entries is Ex.P/25. Articles were sent for chemicalanalysis vide Ex.P/29. 4.5tatement5 of the witnesses were recorded under Sections 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as uthe Code") and after completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Bhanupratappur, who in turn committed the case to the Court of Sessions, Bastar at Jagdalpur, from where learned Additional Sessions Judge (F.T.C.), Bhanupratappur received the case on transfer for trial. 5. In order to prove the guilty of the accused/appellant, the prosecution has examined as many as 13 witnesses. Statement of the accused accused/appellant was recorded under Section 313 of the Code where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. 6. After affronting on opportunity of hearing to the parties, learned Additional Sessions Judge (F.T.C.), BhanuprQtappur has convicted and sentenced the appellant as aforementioned. 7. We have heard Mr.Surendra Singh, Senior Counsel with Mr.Ravish Verma and Mr.Neeraj Mehta, counsel for the appellant and Mr.Ashish Shukla, Asst. Public Prosecutor for the State, perused the judgment impugned and record of the Court below. 8. Shri Surendra Singh, learned Senior Counsel for the appellant vehemently argued that the appellant has not committed any offence, he has not shot fired upon the deceased and has not caused repeated fire upon the deceased. The story of the prosecution including the evidence adduced on behalf of the prosecution clearly reveals that the appellant was having grudged against deceased Rohni Prasad bubey in the room of Aatmaram in the presence of Ramlal Markam (PW-6). The present appellant was showing annoyance against the deceased and was holding S.LR. rifle with alive cartridges, then there was no propriety to ask rifle from the appellant by the deceased and even after refusal by the appellant, there was no propriety for snatching the same. During the courseof scuffleand snatching, trigger was pressed. Witnesses have not stated that only the appellant has pressed trigger during the course of scuffle and snatching. When rifle was in the hands of the appellant and the deceased, then it is impossible to ascertain that who has pressed trigger, but the deceased has been died as a result of injury of gun shot. Injury reveals that it was the case of incident or at the worst, negligent act of the appellant which may punishable under Section 304-A of the Indian Penal Code. The appellant has not intentionally caused death of the deceased. According to the case of the prosecution, the appellant has caused repeated four shot, but except one bullet, other bullets have not been pointed out to the deceased and has not caused any injury to the deceased shows that either the prosecution story is completely false or the appellant has not fired upon the deceasedwhich exclude the possibility of intentionally causing death of the deceased. Learned counsel further argued that even otherwise if it is admitted that the appellant has fired one shot dun'ng the course of scuffle and snatching of rifle, then his act would be squarely fall within the ambit of Section 304 Part II of the Indian Penal Code. 9. Learned counsel placed reliance in the matter of State of Punjab v. Pritam Singh and others in which the Apex Court has held that motive for informant to implicate accused and motive for accused to kill informant equally balanced, truth of prosecution case to be ascertained from surrounding circumstances. Learned counsel further placed reliance in the matter of Kapildeo Mandal <& Ors. v. State of Bihar in which the Apex Court has held that non-recovery of cartridges/pellets from house and in absence of any fire arm injury on the body of deceased, medical evidence thus totally inconsistent with ocular evidence, then evidence of eye-witnesses doubtful. Learned counsel also placed reliance in the matter of Suresh Chaudhary v. State of Bihar3 in which the Apex Court has held that discrepancies between oral and medical evidence regarding the \^ I/\IR 1977 SC 2005 2/\IR 2008 SC 533 3(2003) 4 SCC 128 use of pellet in the case, multiple gunshot injuries on deceased, but only one empty cartridge found at the scene and that too not sent to ballistic expert makes the case doubtful relating to the place of incident and failure of prosecution to collect pellet creates grave doubt to the actual place of the incident. Learned counsel further placed reliance in the matter of Sukhdev Singh v. Delhi State (Govt. of NCT of Delhi)4 in which the Apex Court has held that an effect is said to be accidental when the act is not done with the intention of causing it, and its occurrence as Q consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done to take reasonable precautions against it. It has also been held that during scuffle to fire by the accused causing death of the deceased has the case of graye and sudden provocation falling under Exception IV of Section 300 of the Indian Penal Code. Learned counsel also placed reliance in the matter of Bijoy Singh and another v. State of Bihar in which the Apex Court has held that in case of group rivalry, pendency on the part of prosecution to rope in innocent persons and causes approach of court is required and mere enmity no ground to convict persons whose presence at the scene of crime also doubtful. 10.0n the other hand, learned State counsel supported the judgment impugned and argued that in the present case, on the 9round of some unhealthy and filthy language used by deceased Rohni Prasad Dubey, the appellant was searching him with loaded S.L.R. rifle. He has shown his intention to finish the deceased and when the deceased came into room, then he repeated caused shots fire upon the deceased. Two bullets were found in the room and rests three bullets which he has fired towards sky were not recovered. The evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellant has fired upon the 4JT 2003 (Suppl.2) SC 94 5(2002) 9 SCC 147 deceased with intent to cause his death and has committed murder of the deceased. 11. Learned counsel placed reliance in the matter of Sehaj Ram v. State of Haryana in which the Apex Court has held a constable fired his rifle at another constable as a result of which the victim died on the spot, it was held J-hat the accused committed murder and not any lesser offence. Learned counsel further placed reliance in the matter of Mohan Singh v. State of Punjab7 inwhich the Apex Court has held that the evidence of ballistic expert is opinion and it cannot take place of eye witness who has seen the incident. Learned counsel also placed reliance in the matter of Mani Ram v. State of Rajasthan in which the Apex Court has held that value of expert evidence/medical evidence is of opinion, hardly decisive in case of eye witness doubtful and corroborated by the evidence of ballistic expert, accused are liable to the convicted. 12.In order to appreciate the arguments advanced on behalf of the prosecution, we have examined the evidence adduced on behalf of the prosecution. In the present cose, abnormal death of the deceased as a result of gun shot injury has not been substantially disputed by the appellant, on the other hand, also established by the evidence of Dr.B.K.Ramteke (PW-3) and autopsy report Ex.P/5 which reveals that the deceased died as a result of gun shot injury including fracture of 4th, 6th, 7th, 8th and 9th ribs and rupture of left lung and heart. 13.As regards the complicity of the accused/appellant in the crime in question is concerned, the conviction is based on direct evidence of Ramlal Markam (PW-6), who has deposed in his evidence that at the time of incident, he was sitting in the room of Aatmaram, the appellant came with S.L.R. rifle and told that deceased Rohni Prasad Dubey has abused and 6AIR 1983 SC 614 7AIR 1975 SC 2161 8/\IR 1993 SC 2453 ^< used the words, -ildl^ch ^ ^rT^Tr, at the same time, deceased Rohni Prasad bubey came and demanded rifle from the appellant which he refused,then Rohni Prasad bubey tried to snatch rifle, both the persons were snatching rifle, during the course of snatching, trigger was pressed by the appellant, then he fled from the room. After 1 i- hours, Company Commander Ajab Singh (PW-5) came, he went to the room of Aatmaram, dead body of the deceased was lying and the appellant was sitting in his room. Arunendra Kumar Mishra (PW-1) has also present in Tadoki post where force was deployed, he was also a member of force, he heard fire sound, then he immediately took the position. After 20 minutes, he came to know that the appellant has fired upon Rohni Prasad Dubey. Company Commander Ajab Singh (PW-5), who has lodged the F.I.R., has deposed that he came to know that the appellant has fired upon deceased Rohni Prasad Oubey, then he called the appellant who was sitting inside the room, the appellant came out from the room, then he took the appellant to police Station along with arms and ammunitions. Ghanshyam Dwivedi (PW-8) has also deposed that he has heard sound of fire, but actually he has not seen the incident. Gopal Ram Sahu (PW-9) was present in his room at the time of incident. According to his evidence, the appellant and the deceased weresnatching rifle and during the course of snatching, fire took place, then he fled away from the room. 14. Substantially, the case is based on the evidence of Oopal Ram Sahu (PW-9) and Ramlal Markam (PW-6) who were present at the time of incident whose evidence clearly reveal that the appellant was present in the room of Aatmaram. He was holding S.LR. rifle and was feeling unhealthy, even he has shown his grievance that behavior of the deceased was not normal, he used unhealthylanguage, at the same time deceased Rohini Prasad bubey came and demanded rifle and when it wos not given by the appellant, then he tried to snatch the same and during the course of snatching, fire took place and both the witnesses fled away from the room. Their evidence and evidence of other witnesses also reveal that they have heard five rounds fire. Five blank cartridges were also seized from Ajab Singh who has lodged the F.I.R. vide Ex.P/21. No bullet was found in thebody of the deceased. One used bullet was seized from the spot vide Ex.P/10 which was sent for chemical examination along with dead body which was returned by the doctor after resealing the same and other used bullets have not been seized by the investigating officer, but map Ex.P/8 prepared by the investigating officer reveals that one used bullet was found under the soil when it was prepared on 29.1.2005. Vide Ex.P/33, the police have sent two bullets for chemical examination. It appears that two bullets have been recovered, one by seizure Ex.P/10 and one at the time of preparing the map. Autopsy report Ex.P/5 and the evidence of Dr.B.K.Ramteke (PW-3) reveal that one enty and three exist wounds were found on the body of the deceased. It reveals that one shot has caused injury and bullet was diverted after stroking upon the bone and makes multiple exists. Five enty wounds were found over the body of the deceased. 15.It is not disputed that at the time of alleged fire, the appellant and the deceased were present in the room. The deceased was not holding any arm, the appellant was holding fire arm. After first fire, definitely the deceased was not in a position to save himself and it was very easy for the appellant to cause repeated fire upon big target like human body. The appellant is expert in using fire arm, therefore, there was no question of missing of fire upon the tar9et if really it was intended. The prosecution has not collected any evidence relating to other fires at least other three fires, but even if it is admitted that the appellant has also caused four extra fires, then it is not disputed that the appellant has not fired upon the deceased after first fire having full opportunity of fire upon the deceased. After the incident, he went in his room and he was sitting with the fire arm and when he was called by Ajab Singh that he must come without weapon from the room, then he obeyed the order and came with 10 without arm, he was sitting in his room and for more one hour with fire arm and cartridges. 16.In the present case, presence of the appellantand the deceased in the room, fire by the weapon which the appellant was holding and injury found over the chest of the deceased by the bullet shows that the deceased died as a result of bullet injury fired from fire arm which the appellant was holding and has received only one bullet injury. Ramlal Markam (PW-6) has deposed that at the time of snatching, trigger was pressed by the appellant, although it has not been mentioned in his police statement Ex.D/1, but his presence at the time of incident is not disputed. He was watching the incident which was also not disputed. His detail evidence reveals that he has seen the incident and after first fire he fledfrom the room. If the evidence of this witness is considered in its totality, then oniy it may be inferred that both the persons were snatching firearm and at the time of snatching of fire arm, trigger was pressed by the appellant which caused fatal injury to the deceosed, then this witness fled away from the room. 17.This is not the case of accident. The appellant was under obligation to take proper precaution relatin9 to S.L.R. rifle most dangerous fireand he was under obligation to keep in lock position. The situation is suggestive of the fact that bud of the rifle and trigger part of the rifle must be in the hands of the appellant and barrel was facing towards the deceased, then it was again the duty of the appellant to take proper precaution to save the person, but fire shows that during the course of snatching, he provoked and fired upon the deceased. 18. As held by the Apex Court in the matter of Sukhdev Singh (supra), the test of grave and sudden provocation is whether a reasonable man belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provocated as to loose self-control. 11 19. As held by the Apex Court in the matter of Bijoy Singh and another (supra), rivalry group is always in consistency to rope innocent, but in the present case, the case is not based on rivalry group. The factof the case of Bijoy Singh and another (supra) is distinguishable to that of the present case. 20.befinitely/the prosecution is required to collect used bullets, but in the present case, the place of incident is established by the evidence of other witnesses whose stQtements appears to be natural. As held by the Apex Court in the matter of Kapildeo Mandal (supra). in case of total in consistency between eye witness and medical expert, the evidence of eye witness becomes doubtful. 21.As held by the Apex Court in the matters of Mohan Singh & Mani Ram (supra), the evidence of expert is only opinion and in case of conflict between expert and eye witnesses, weight should be given to the evidence of eye witnesses, but it must be remembered that evidence of eyewitnesses having weakness of different kinds and their evidence required minute scrutiny and in case of evidence impossible to except, then same should be discarded. It is not expected from eyewitnesses to depose about dimensions of injuries and manner of injuries. If the person has fired by the fire arm, then there must be gun shot injury if it has effected the body, but if such injury is not found and instead of gun shot/ some contusion is found then it would be completely fraud and inconsistent with the medical evidence. 22.While dealing with the question of inconsistency between medical evidence, ocular evidence and its effect, the Apex Court in the matter of Kapildeo Mandal (supra) has held in para 11 as under:- "............when the court finds inconsistency in the evidence given by the eye-witnesses which is totally inconsistent to that given by the medical experts, then evidence is appreciated in different perspective by the Courts. In Mohinder Singh v. The State, (1950) SCR 821 (at page 828), this Court said:- ^ 12 U......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. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of that case. In the present case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle. Indeed, it seems more likely that they were caused by a rifle than by a gun, and yet the case for the prosecution is that the appellant was armed with a gun and, in his examination, it was definitely put to him that he was armed with the gun P.16. It is only by the evidence of a duly qualified expert that it could have been ascertained whether the injuries attributed to the appellant were caused by a gun or by a rifle and such evidence alone could settle the controversy as to whether they could possibly have been caused by a firearm being used at such a close range as is suggested in the evidence......" 23.In the present case, witnesses have not deposed that the appellant has fired five rounds upon the deceased, but they