IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.281 of 2006 Decided on : November 3, 2009 Jodh Raj …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. N.S. Chandel, Advocate. For the Respondent : Mr. P.M. Negi, Deputy Advocate General, and Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J (Oral) Appellant Jodh Raj has appealed against the judgment, dated 6th July, 2006, of learned Sessions Court, whereby the appellant, who was charged with and tried for offences, under Sections 302 of the Indian Penal Code and 27 of the Arms Act, has been convicted of offence, under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/-; in default of payment of fine to undergo simple imprisonment for a further period of two years. However, he has been acquitted of the offence, under Section 27 of the Arms Act. 2. Case of the prosecution, as it emerges from the evidence led during trial, is like this. Deceased Bishambhar Whether reporters of the local papers may be allowed to see the judgment? …2… and the appellant are real brothers. They had five more brothers, one of whom died a natural death long before the incident. Father of the appellant and the deceased divided his property amongst his sons. After such division, the appellant was given one room in a house, which had three rooms. The other two rooms fell to the share of the father of the appellant and his two sons, namely deceased Bishambhar and Dilawar. Dilawar was married and deceased Bishambhar was unmarried. In between the room that was allotted to the appellant and the two rooms, which were occupied by the father of the appellant and the deceased and his brother Dilawar, a partition wall was raised, by placing bricks in layers, one over the other. There were 19 layers of the bricks, as we count from the photographs Ex. PW-7/A-1, and in terms of the number of the layers, the height of the wall should be 57 inches. 3. Appellant was having a grievance that his father had discriminated against him, while partitioning his landed property. Because the deceased and another brother of the appellant and the deceased, namely Dilawar, lived with their father, the appellant used to quarrel with them, on account of his grievance against his father. As per testimony of a witness, examined by the appellant, namely DW-1 Guran Ditta, the eldest brother of the deceased and the appellant, another reason of strained relations between …3… the appellant, on one side, and the deceased and his brother Dilawar and their father, on the other, was that the sale proceeds from the joint orchard were with the deceased, who was unmarried at that time. 4. On 23rd June, 2005, Dilawar’s wife Vijay Laxmi (PW-9) and her mother were present in the portion of the house, which fell to the share of the deceased and Dilawar. She was cleansing utensils. Around 8.30 a.m., deceased Bishambhar returned from the fields, as he had gone early in the morning to the fields, without taking meals. Appellant was present in the courtyard, at that time. He started quarreling with deceased Bishambhar. The appellant then fired a shot from his licensed gun Ex. P-5, which went over the head of PW-9 Vijay Laxmi. Appellant then re-loaded the gun and went to his portion of the house. He stood on a settee that lay beside the aforesaid partition wall and fired a shot at the deceased, who by that time had entered the room and was about to shut the door, to escape the fury of the appellant. The shot hit deceased Bishambhar on his right side of the chest, just below the shoulder, causing a wound, measuring 4”x3½”x4”(deep). Bishambhar died within a few minutes. 5. There was a time gap of 4-5 minutes between the firing of the two shots. First shot was heard by PW-5 Surinder Singh, who was at that time present at the shop of one Prakash Chand, where PW-8 Ravi Kumar, another …4… brother of the deceased and the appellant, was working as labourer. PW-5 Surinder Singh informed PW-8 Ravi Kumar about his having heard the sound of a gunshot from the direction of his father’s house. PW-8 Ravi Kumar then rushed to the place of occurrence. It was after his arrival, on the spot, that the second shot, which hit deceased Bishambhar below his right shoulder, was fired and thus he alongwith PW-9 Vijay Laxmi was an eye-witness. 6. PW-8 Ravi Kumar went to the Police Station and lodged FIR Ex. PW-8/A. The time of the lodging of the FIR, as mentioned in the FIR, is 9.30 a.m. A police party, headed by ASI Chain Singh (PW-14), rushed to the spot. He got the scene photographed. Then he conducted inquest and filled in Form Ex. PW-1/B and sent the dead body to the hospital for postmortem examination, alongwith the inquest report as also application Ex. PW-1/A. He also found two empty cartridges Ex. P-6 and Ex. P-7 on the spot and took the same into possession vide Memo Ex. PW-2/B and made them into a parcel. 7. Postmortem of the dead body was conducted, at 3 p.m., by PW-1 Dr. Raman Sharma, who noticed a deep lacerated punctured wound measuring 4”x3½”x4” with ragged and irregular margins. He also noticed pellet marks with sign of tattooing within 2” diameter of the wound. 23 pellets and wad (word used by the doctor is cartridge case), were recovered from inside the wound. Cause of death was …5… opined to be a gun shot injury, which led to haemorrhagic shock. Time lag between the injury and the death was opined to be a few minutes and between the death and the postmortem within 24 hours. 8. Around 10.30 a.m. on 23rd June, 2005, itself, appellant went to the Police Station alongwith Gun Ex. P-5 and three live cartridges Ex. P-11 to Ex. P-13 and handed over the same to MHC Sher Singh (PW-11). PW-11 Sher Singh waited for the SHO to arrive. The SHO, namely PW-15 Inspector Ramesh Kumar, had gone for VIP duty to Pathankot on that day. He was telephonically informed about the lodging of the FIR by PW-14 ASI Chain Singh around 9.30 a.m. After getting free from VIP duty, SHO PW-5 Ramesh Kumar straightway went to the spot. He reached the spot at 12.30 p.m. By that time inquest had been conducted, scene photographed and empties of cartridges recovered from the spot. He recorded statements of two witnesses, under Section 161 of the Code of Criminal Procedure. He returned to the Police Station around 5.30 p.m. It was then that gun Ex. P-5 alongwith three live cartridges Ex. P-11 to Ex. P-13 was handed over to him by PW-11 Sher Singh and the appellant was formally arrested by him. 9. Gun alongwith two empties recovered from the spot and three live cartridges was sent to the Chemical Examiner for seeking his opinion whether the Gun was …6… capable of being fired through, two empties recovered from the spot had been fired through Gun Ex. P-5 and the pellets, numbering 23, recovered from the dead body could have been of any one of the two empty cartridges. Expert, namely PW-17 Rajesh Kumar, Scientific Officer, gave the opinion, vide report Ex.PW-16/A, that one of the two cartridges had been fired through Gun Ex. P-5 and second empty could have also been fired through by the same Gun, but he was not definite about the same. He gave the opinion by comparing the marks on the two empties and the empties of the live cartridges, which he test-fired. 10. On completion of the investigation, appellant was sent up for trial. Learned Judicial Magistrate, in whose Court the case was filed, complied with the requirement of Section 207 of the Code of Criminal Procedure and committed the case to the Sessions court. Appellant was charged by the Sessions Court with offences, under Sections 302 of the Indian Penal Code and 27 of the Arms Act, to which he pleaded not guilty. So, he was tried. 11. Prosecution mainly relied upon the testimony of eye-witnesses, namely PW-8 Ravi Kumar and PW-9 Vijay Laxmi, report of the Ballistic Expert, namely PW-17 Rajesh Kumar and the testimony of PW-5 Surinder Kumar and convicted and sentenced the appellant, as aforesaid. 12. Appellant’s plea that he was not present on the spot and that he reached the spot only after 9 or 9.15 a.m. …7… on hearing that deceased Bishambhar had died of a gunshot injury was disbelieved by the trial Court. 13. We have heard the learned counsel for the appellant as also the learned Deputy Advocate General and gone through the record. 14. Both, PW-8 Ravi Kumar and PW-9 Vijay Laxmi, testified that the gunshot, which hit the deceased on the upper chest (right side), was fired by the appellant through his Gun Ex. P-5, in their presence. PW-9 Vijay Laxmi stated that she was at home and was cleansing utensils, when deceased Bishambhar returned from the fields around 8.30 a.m. and that the appellant, who was already present in the courtyard, started arguing with the deceased and then fired a shot in the air, which passed over her head. She further stated that after the first shot was fired, deceased and the appellant again exchanged hot words and the appellant threatened to shoot the deceased dead, upon which the deceased withdrew to his room and when he was about to shut the door to save himself, the appellant, who had by then re-loaded his Gun, fired another shot, aiming at the deceased, positioning himself on a settee, on the other side of the partition wall and the shot hit the deceased below his shoulder, as a result of which he fell on the spot and died. She stated that by that time PW-8 Ravi Kumar had also reached, who pleaded with the appellant not to fire the shot. …8… 15. PW-8 Ravi Kumar stated that on the fateful day he went to the fields early in the morning and returned around 8 or 8.15 and then went to work as a labourer at Prakash Chand’s shop situated at a distance of about 40 feet from the house where his father lived and that around 8.30 a.m., PW-5 Suridner Singh informed him that he had heard the sound of a gunshot, emerging from the side of his house, upon which he ran to the house of Bishambhar and saw the appellant aiming the gun at Bishambhar, who was inside his room. He stated that he pleaded with the appellant not to fire but he threatened that he would kill him too with his gun in case he interfered and then he fired a shot, which hit the deceased on the right side of his chest, below shoulder, and the deceased fell instantaneously. 16. Testimony of PW-8 Ravi Kumar is corroborated by the testimony of PW-5 Surinder Kumar, who stated that he was at the shop of Prakash Chand, when he heard sound of gunfire and informed PW-8 Ravi Kumar that the sound had emerged from the direction of his house. He stated that 4-5 minutes later he heard the sound of another gunshot and a little thereafter PW-8 Ravi Kumar returned and told that Bishambhar had been shot dead. 17. Ocular version of the incident, as given by the abovenamed two witnesses, is further corroborated by the evidence of PW-17 Rajesh Kumar, Scientific Officer, who, vide his report Ex. PW-16/A, has opined that one of the two …9… empty cartridges, i.e. Ex. P-6, recovered from the spot had definitely been fired through gun Ex. P-5. 18. Learned counsel for the appellant submits that the test conducted by the witness to reach the aforesaid conclusion is of doubtful nature, inasmuch as the witness, per his own cross-examination, did not prepare micro photographs. No doubt, the witness did state that he did not prepare the micro photographs about the impression of the pin on empty cartridge Ex. P-6 as also the cartridges fired by him, as part of the test conducted by him, but that does not mean that the impressions of the pin on empty Ex.P-6 and empties of test-fired cartridges were not compared with each other in a scientific manner. Normally, the comparison is done in the laboratory, by means of highly sophisticated equipments, like microscopes and other instruments of magnification. Micro photographs are taken only for the purpose of demonstrating that the impressions are identical. The Expert evidence, thus, proves that empty Ex. P-6 had definitely been fired through gun Ex. P-5. 19. Admittedly, gun Ex. P-5 belongs to the appellant. Appellant has offered no explanation how by means of his gun, empty Ex. P-6, recovered from the spot, had been fired through and who, other than him, could have possibly fired the shot. In the absence of any explanation by the appellant, the presumption is that it is …10… he, being the owner of the Gun, who fired the shots, one of which hit the deceased and caused his death. 20. Learned counsel for the appellant submits that the FIR of the case is ante-timed and that the entire story was cooked up after the appellant went to the Police Station with the Gun and the cartridges, around 5 in the evening, on being called by the police, after the SHO reached the Police Station. The submission is without merit. Inquest was conducted by PW-14 ASI Chain Singh, before the SHO, PW-15 Ramesh Kumar, reached the spot. As already noticed, PW-15 Ramesh Kumar reached the spot at 12.30 p.m. The version given in FIR Ex. PW-8/A finds mention in the inquest report Ex. PW-1/B as also in the application, Ex. PW-1/A, which was addressed to the Medical Officer for conducting the postmortem examination. Postmortem examination was conducted at 3 p.m. PW-1 Dr. Raman Sharma stated that alongwith the dead body and application Ex. PW-1/A he received inquest report Ex. PW- 1/B. Therefore, the contention that FIR is ante-timed and that in fact it was recorded after the SHO reached the Police Station, around 5 p.m., cannot be believed. 21. However, from the evidence on record, we find that there had been an altercation between the deceased and the appellant, before the shots were fired. The fact is testified by PW-9 Vijay Laxmi, who stated that the two quarrelled with each other, because of the land dispute, …11… before the shots were fired. The first shot was fired by the appellant in the air, which suggests that he did not have any intention to kill the deceased, who was his real brother, but wanted only to browbeat and scare him and assert his dominance over him, may be on account of the fact that the deceased was younger to him. It was only the second shot, which caused the death. This shot was also not aimed at any vital part of the body. It was aimed just below the right shoulder. The shot, as per the opinion of PW-1 Dr. Raman Sharma, was fired from a distance of only 6-7 feet. Appellant was a Home Guard volunteer and, therefore, he was supposed to have been trained at handling the firearms, before he was so appointed. His firing a shot from a distance of only 6-7 feet, aiming the upper chest, just below the right shoulder, suggests that he did not intend to cause the death, though he can be presumed to have had the intention to cause an injury, which could have caused death. Therefore, we hold the appellant guilty not of the offence of murder, under Section 302 of the Indian Penal Code, but of offence of culpable homicide not amounting to murder, punishable under Section 304 (first part) of the Indian Penal Code. 22. As a result of the above discussion, appeal is partly accepted, conviction and sentence of the appellant, for offence, under Section 302 of the Indian Penal Code, are set aside and instead he is convicted of offence, under …12… Section 304 (first part) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/-; in default of payment of fine to undergo simple imprisonment for a further period of one year. Appeal stands disposed of accordingly. ( Surjit Singh ), J November 3, 2009(sd) ( Surinder Singh ), J