IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.391 of 2005 Decided on: March 26, 2008. Bhagat Ram …Appellant Versus State of H.P. …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Rakesh Jaswal, Advocate. For the Respondent : Mr. P.K. Sharma, Addl. Advocate General. Surjit Singh, Judge (oral) Appellant has appealed against the judgment of Sessions Court convicting him of offences, under Section 302 IPC and Section 27 of the Indian Arms Act, and sentencing him to life imprisonment and to pay fine of Rs.5000/-; in default of payment of fine to undergo rigorous imprisonment for a further period of one year, in respect of offence under Section 302 IPC, and three years rigorous imprisonment and fine of Rs.2000/-; in default of payment of fine to undergo rigorous imprisonment for a further period of six months, in respect of offence under Section 27 of the Indian Arms Act. 2. The factual matrix, which led to the trial and conviction of the appellant, may be noticed. Deceased Gurdei was married to Nikku Ram, a brother of the appellant, about 30-32 years back. Said Nikku Ram died 4-5 years after the marriage and thereafter the deceased Whether reporters of the local papers may be allowed to see the judgment? …2… settled with the appellant as his wife. About 18-19 years prior to the occurrence, which took place on 6.11.2002, the appellant married another lady, named Roop Dei, who lived in the native village of the appellant. Name of that village is Rajwan. The appellant and the deceased lived in village Porla in Nalagarh Sub Division. 3. On 6.11.2002, a thrashing machine, belonging to one Rajinder Singh, was operated by the appellant to thrash his maize crop. By the evening the job of thrashing was over. The machine was shifted to the house of PW-1 Brij Lal. After the machine was installed in the courtyard of PW-1 Brij Lal, tea was served to those present, including the appellant and his wife Gurdei deceased. Thereafter, the appellant left Brij Lal’s place. His wife remained at Brij Lal’s house as she was taking tea. The appellant returned to the house of PW-1 Brij Lal holding a double barrel gun Ext. P-1 and a bag Ext.P-2, containing gun powder. He asked Prem Lal (PW3), a brother of PW-1 Brij Lal, if he had a torch. On being told by PW-3 Prem Lal that he did not have any torch, the appellant asked his own wife deceased Gurdei if she had any torch. When Gurdei told him that she too had no torch, the appellant is alleged to have fired a shot from his gun Ext.P-1 at Gurdei, which hit her on the left side of the neck and some of the pallets exited through the back chest on the right side. PW-5 Gillo Devi, a Member of the Gram Panchayat, was informed immediately. She in turn informed the Pardhan of the Gram Panchayat, named Inder Singh (PW2), who gave a ring to the police. Police arrived at the scene, around 10.00 PM. Gurdei, who was lying in an injured state, was shifted to a hospital at Nalagarh, from where she was taken to PGI, Chandigarh. She died on 10.11.2002 at PGI. Autopsy was conducted by PW-8 Dr. Manisha Gupta, in the presence of a senior Doctor, namely PW-7 Dr. B.R. …3… Sharma. Following two injuries were noticed on the person of the deceased :- “1. A stitched lacerated wound measuring 10 cm in length extending from the tip of left shoulder and lower part of the neck. 2. An oval irregular margined wound measuring 1.5 x 2 cm over the right supra scapular region of the back directed upward and medially.” The injuries, in the opinion of PW7 Dr. B.R. Sharma, were not sufficient in the ordinary course of nature to cause death. Cause of death was opined to be septicemia resulting from the injury caused by the projectile of fire arm. 4. The incident was witnessed by PW-1 Brij Lal, his brother Prem Lal PW-3 and his wife Parkasho Devi PW-4. As soon as the appellant fired the gunshot, PW-1 Brij Lal over-powered him and seized the gun from him. He put the gun in an almirah lying in his house and locked that almirah. When the police reached the spot, the gun was handed over by PW-1 Brij Lal to them. Arms licence in respect of the gun was taken into possession from the appellant. A dupatta of the deceased was found lying in the kitchen where the incident had allegedly taken place. Blood was also found splattered on the floor of the kitchen. 5. Trial Court has believed the prosecution version as testified by PW-1 Brij Lal, PW-3 Prem Lal and PW-4 Parkasho Devi, and corroborated by the testimony of PW-2 Inder Singh and PW-5 Gillo Devi, with regard to the site of the occurrence as also the production of the gun to the police by PW-1 Brij Lal. …4… 6. Appellant took the plea that he had been falsely implicated, because of enmity with the complainant side. He pleaded that on the fateful day when he was passing through the path, in front of the house of PW-1 Brij Lal, the latter accompanied by his brother Prem Lal (PW3), wife Parkasho Devi (PW4) and two sons attacked him and that when he cried for help, his wife came to his rescue, but in the meanwhile, PW-1 Brij Lal brought a gun from his house and aiming the shot at him pressed the trigger. The shot hit his wife Gurdei who came between him and PW-1 Brij Lal to save him and the gun shot hit her. 7. We have gone through the record and heard the learned counsel for both the sides. PW-1 Brij Lal, PW-3 Prem Lal and PW-4 Parkasho Devi stated with one voice that when the appellant returned to their house after taking tea at their place, he was armed with a gun and that he asked his wife if she had a torch and on her telling him that she did not have any torch, he fired a shot through his double barrel gun at her. There does not appear to be any reason to disbelieve their testimony, particularly when it is corroborated by the fact that soon after the occurrence when the police reached the spot, PW-1 Brij Lal produced the gun Ext.P1, which admittedly belongs to the appellant, to the Police Officer heading the police party, namely PW-16 SI Nutan Sharma. PW-1 Brij Lal very categorically stated that he produced the gun to the police on that very night. This part of his testimony was not challenged. 8. The testimony of three eye witnesses is further corroborated by the fact that Dupatta of the deceased was found in the kitchen of PW-1 Brij Lal. Blood was also found on the floor of the kitchen. No blood or any mark of use of force was found on the path where, according to the appellant, he was allegedly attacked by PW-1 Brij Lal and his family members. These facts not only corroborate the …5… oral version testified by PW-1 Brij Lal, PW-3 Prem Lal and PW-4 Parkasho Devi, but also give a lie to the defence plea. Under these circumstances, we find no reason to suspect the prosecution version about the incident. 9. Learned counsel representing the appellant submits that this is not a case of murder, punishable under Section 302 IPC, but at the most a case of culpable homicide not amounting to murder, punishable under Section 304 (second part) IPC. To buttress his submission, the learned counsel has taken us through the testimony of PW-7 Dr. B.R. Sharma, Additional Professor, Department of Forensic Medicines and Toxicology, Govt. Medical College, Chandigarh, who testified that the injuries found on the dead body were not sufficient in ordinary course of nature to cause death and that the cause of death was septicemia caused by the projectile of fire arm. 10. Now, if the injuries which were caused by the gun shot were not sufficient in ordinary course of nature to cause death, it cannot be said that the appellant intended to kill the deceased or to cause any injury, which was likely to cause death in ordinary course of nature or that he knew that his act was so imminently dangerous as was likely to cause death in all probability. Therefore, he cannot be said to have committed the offence of murder. However, he can be said to have known that the gun shot injury was likely to cause the death of Gurdei. So, his act falls within the mischief of Section 304 (second part) IPC. Consequently, we hold the appellant guilty of the offence of culpable homicide not amounting to murder, punishable under Section 304 (second part) IPC and reverse the finding of the trial Court that he is guilty of the offence of murder. 11. As an upshot of the above discussion, appeal is partly accepted and the conviction of the appellant for the offence, under …6… Section 302 IPC is set aside and instead he is convicted of offence under Section 304 (second part) IPC and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5000/-; in default of payment of fine to undergo rigorous imprisonment for a further period of one year. His conviction and sentence for offence, under Section 27 of the Indian Arms Act, as passed by the trial Court, remain unchanged. ( Surjit Singh ), J. March 26, 2008, (ss) ( V.K. Ahuja ), J.