IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 457 of 2004 Judgment reserved on: 21.4.2008 Decided on: 30.4. 2008 Dhiren Walia …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 For the appellant : Mr. T.R. Chandel, Advocate. For the respondent : Mr. P.K. Sharma, Addl. A.G. with Mr. P.M. Negi, Dy. A.G. For the complainant : Mr. N.S. Chandel, Advocate. Surjit Singh, Judge This appeal by Dhiren Walia, hereinafter called accused, is directed against the judgment of Sessions Court, whereby he has been convicted of offence of murder, punishable under Section 302 IPC and illegal use of licensed fire arm for the commission of the offence of murder, punishable under Section 30 of the Arms Act, 1959, and sentenced to undergo imprisonment for life and to pay fine of Rs.2000/-, in respect of offence, under Section 302 IPC and to undergo simple imprisonment for a period of two months and to pay fine of Rs.1000/-, in respect of offence, under Section 30 of the Arms Act, 1959. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Prosecution case, as per evidence on record, may be summed up thus. Deceased Padmesh Kaur, accompanied by accused Dhiren Walia, PW-16 Jai Dev Sharma, Nisha wife of PW-16 Jai Dev Sharma and children and a maid servant of PW-16 Jai Dev Sharma, came to Shimla from Delhi on 23rd May, 2003. On the first day, i.e. 23rd May, 2003, they stayed in a Forest Rest House at Shimla. Next day they shifted to Cedar Guest House of Punjab Government, situated on The Mall. On 29th May, 2003, the deceased, the accused, PW-16 Jai Dev Sharma and his wife Nisha went to Devicos. There they consumed liquor. They returned to Cedar Guest House around 12.30 A.M. PW-1 Beer Singh, who was employed as a waiter at the said guest house, was asked to prepare meals for them. He was also asked to make available glass- tumblers, Soda and Pepsi, which he supplied immediately. Then he went to the kitchen to prepare meals for them. He prepared Pronthas and a dish of eggs (Bhurji) and served the same to the group of above named four persons and went to sleep. The group continued consuming liquor till 3 A.M., when accused Dhiren Walia, all of a sudden, called the deceased a bitch. The deceased protested and shouted back. The accused rose from his sofa chair, which was placed just opposite to the sofa chair occupied by the deceased, went behind her, took out pistol from holster, which was tied to his belt and fired a shot at the deceased. The bullet hit her on the head near the right ear. She died instantaneously, in the sofa chair itself. The accused then ran out from the guest house. He got into his black coloured Bolero Jeep, which was parked out side the Cedar Guest House and drove away. A telephonic call was made to police at number 100. Within no time the police arrived. They inspected the spot. Scene was got photographed by the police. Among other things, an empty shell of a bullet, Ext P-17, was recovered from the spot, vide Memo. …3… Ext. PB. PW-16 Jai Dev Sharma wrote application Ext. PU, addressed to the Station House Officer, narrating therein the details of the incident. On the basis of the said application, case was formally registered, vide FIR Ext. PT, at Police Station, Shimla (East). Inquest was conducted. Dead body was sent to Indira Gandhi Medical College/Hospital, Shimla, where PW-20 Dr. Pyush Kapila and Dr. H.S. Sekhon of Forensic Medicine Department conducted postmortem examination. They recorded the following observations: “Dried clotted blood alongwith protrusion of brain matter and meninger present over the mastoid region of scalp just below the ear of right side. There was no evidence of any blackening or senging of hair or around the skin, and no evidence of any tatooning. On cleaning the hairs from the mastoid region there was an irregular shaped wound over the mastoid area 2 ½ cms from the tip of pinnae and 3 cm above the edge of mastoid. Upper part of the wound was circular with a diameter of one cm. and there was an extension which was linear measuring 2 cm x ½ cm bone deep. Abrasion and contusion collar was present over the circular part of the wound partially oblique. This was the wound of entry on the basis of the above findings. On reflecting the scalp, there was a gross contusions especially below the temporal muscle on the right side with linear extension over the fractured area of the skull. There was a circular hole over the parietal bone of right side near the mastoid region with brain matter coming out of the hole measuring 1.5 cm in diameter with multiple sutural separation of lanbdoid saggittal and coronal suturel lineial fracture extending from the circular hole up to the middle of saggittal suture measuring 14 cms in length.” 3. On being told by PW-16 Jai Dev Sharma that the accused had escaped in a black coloured Bolero Jeep bearing registration No. DL- 3CS-8975, alert was sounded to various SHOs, including that of Kandaghat through whose territorial area of jurisdiction National Highway No.21 leads to the exit point of the State. A Nakka was arranged at Kandaghat. The aforesaid vehicle was intercepted by the SHO, Police Station, Kandaghat, namely PW-7 SI Ramesh Chauhan and PW-6 H.C. …4… Bhupinder Singh, in the wee hours of 30th May, 2003. The vehicle was being driven by the accused. Search of the vehicle was conducted. A bag containing Registration Certificate of Bolero No.DL-3CS-8975, insurance policy, pollution chit, driving licence of the accused, one key, one bandolier with 16 live cartridges with digits and letters “7.65 B” inscribed thereon were recovered. One pistol lying under the driver’s seat was also recovered. The words and digits that were inscribed thereon read as “COLTS PT. FA. MFG. CO. HART FORD CT U.S.A. PATAENTED APR. 20, 1897, DEC 22, 1903”. The pistol was found loaded. One cartridge was found in its chamber and four in the magazine loaded therein. All the aforesaid articles were taken into possession vide memo. Ext. PM. 4. Accused told PW-7 SI Ramesh Chauhan and PW-6 HC Bhupinder Singh that while fleeing from the spot, he had fallen and sustained injuries on his back. He was taken to Civil Hospital, Kandaghat, where PW-18 N.K. Gupta conducted his medico legal examination at 6.35 AM and observed the following injuries on his person: “Multiple abrasions size between 7 cms x 3 cms to 4 cms x 2 cms, ten in number on the back from scapular region to illiae crest red in colour. Subconjectival haemorrhage on the left eye on the lateral aspect Abrasion 2 cms x 1 cm on the left ear lobule red in colour.” He gave the opinion that the injuries appeared to have been sustained within six hours and the same could have been caused as a result of fall. 5. Pistol Ext. P21, empty cartridge Ext.P-17, 16 live cartridges Exts. P-28 to P-43 and 5 other live cartridges Exts.P-22 to P-26, were sent …5… to the Ballistic Expert, who gave the opinion that the pistol Ext. P-21 was in working order and empty cartridge Ext. P-17 had been fired through it. He further opined that 16 live cartridges Exts.28 to 43, recovered from the Bolero Jeep and 5 other live cartridges Exts.P-22 to P-26, recovered from the pistol, could be fired through pistol Ext. P-21. License Ext. PC of pistol Ext. P21 was recovered from the pocket of a shirt of the accused, which was found hung in the bed room occupied by him in Cedar Guest House. The same is in the name of the accused. 6. Prosecution examined 22 witnesses in all. Evidence of some of them is of formal nature. Witnesses, whose evidence is material and has been placed reliance upon by the trial Court for basing the conviction of the accused, are PW-16 Jai Dev sharma, who was present on the spot when the incident took place and who claims to have witnessed the incident, two police officials of Kandaghat, namely PW-6 HC Bhupinder Singh, PW-7 SI Ramesh Chauhan, who organized a Nakka at Kandaghat on getting a log message that the accused had absconded in a Bolero Jeep, after committing the murder of a lady in Cedar Guest House, Shimla, intercepted the said Bolero Jeep, arrested the accused and recovered the pistol and the cartridges from the said Jeep, PW-15 SI Banarsi Dass of Police Station, Shimla (East), who was deputed to bring the accused from Kandaghat and PW-18 Dr. N.K. Gupta, who conducted medico legal examination of the accused at Kandaghat. 7. Accused did not deny that the deceased had died of a shot fired though his pistol Ext. P-21, though he took different stands in the cross-examination of the prosecution witnesses, in his statement under Section 313 Cr. PC and his written statement, under Section 233(4) Cr. P.C., about the circumstances and the manner in which the shot got/was fired. To PW-16 Jai Dev Sharma, it was suggested that around 3 AM …6… accused Dhiren Walia asked deceased Padmesh Kaur to stop drinking as she was already over drunk, upon which Padmesh Kaur got infuriated and started hitting the accused with a Danda and called him a bastard, meaning thereby that the deceased caused grave provocation to the accused, due to which he lost self control and happened to fire the gun shot. In his statement, under Section 313 Cr. P.C. , he took the plea that when he asked deceased Padmesh Kaur not to drink any more, she and PW-16 Jai Dev Sharma asked him not to interrupt their conversation and that when he persisted that it was not good for health to drink more, PW- 16 Jai Dev Sharma, deceased Padmesh Kaur and one more couple, who were drinking with them, started giving beatings to him and tried to snatch the pistol from him and in the melee, the pistol got fired and the bullet hit the deceased. In his statement, under Section 233 (4) Cr. P.C., he claimed that when he asked the deceased to exercise restraint while drinking, as excessive drinking could put her life in danger, she started calling him and his parents names and even called him a bastard and then picked up a stick and gave beatings to him, which provoked him to the extent that he lost his patience and self control and happened to fire a shot through his pistol. He stated that he loved Padmesh Kaur and had been having physical relations with her for the last several years and, therefore, there was no motive or intention on his part to kill her. 8. Trial Court did not accept any of the aforesaid self contradictory stands of the accused and convicted him of the offence of murder, under Section 302 IPC and Section 30 of the Arms Act, as aforesaid. 9. Initially, the matter was taken up for hearing on 10.9.2007. On that day during the course of hearing, we felt that besides PW-16 Jai Dev Sharma, his wife Nisha being also present when the incident took …7… place and that she being an eye witness, it was desirable to have her version of the incident also to reach the truth. Consequently, Nisha was examined as CW1. She gave the same narration of the incident as her husband PW-16 Jai Dev Sharma. Accused’s counsel cross-examined her. The pleas of grave provocation or sudden fight, as suggested to PW- 16 Jai Dev Sharma, were not suggested to her. However, it was suggested to her that she and her husband had suppressed the true genesis of the occurrence, under pressure from Captain Amrinder Singh, erstwhile ruler of Patiala State, who happens to be the cousin of the deceased. 10. Learned counsel submitted that it was not a case of murder, punishable under Section 302 IPC, but only a case of culpable homicide not amounting to murder, punishable under Section 304 IPC. He urged that it was clear from the evidence of the prosecution itself that the accused happened to fire pistol shot on account of grave provocation and also upon sudden quarrel and in the heat of passion. It was also urged by him that even if the Court felt that neither there was any provocation offered by the deceased nor was there any sudden quarrel and fight, still the facts and the circumstances of the case did not bring the matter within the mischief of Section 302 IPC, as the requisite mens rea referred to in any of the four clauses of Section 302 IPC was lacking. 11. Before dealing with the submissions of the learned counsel, we would like to notice the difference between the offence of murder, punishable under Section 302 IPC and the offence of culpable homicide not amounting to murder, punishable under Section 304 IPC. Every killing of a man by a man is culpable homicide if the killer intends to cause such bodily injury as is likely to cause death or if the killer does the act leading to the death with the intention of causing death or with the intention of …8… causing such bodily injury as is likely to cause death or with the knowledge that by such act he is likely to cause death, per Section 299 IPC. In the following cases, culpable homicide would be murder: (a) if it is done with the intention of causing death; (b) if it is done with the intention of causing such bodily injury as the offender knows is likely to cause the death of the person to whom injury is caused; (c) If it is done with the intention of causing bodily injury to any person and the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; and (d) If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and there is no excuse for incurring the risk of causing death or injury of the aforesaid kind. 12. If the culpable homicide lacks the intention or the knowledge referred to in (a) to (d) above, it will not amount to murder, punishable under Section 302 IPC, but would be punishable under Section 304 IPC as culpable homicide not amounting to murder. 13. In the following situations even if the intention or knowledge referred to in (a) to (d) exists, the act of the offender will be punishable not under Section 302 UPC, but under Section 304 IPC: (i) if the offender happens to cause the death on being deprived of the power of self control by grave and sudden provocation given by the deceased; …9… (ii) if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and happens to cause the death of the person against whom such right of defence is exercised and does so without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence; (iii) If the offender is a public servant or is aiding a public servant acting for the advancement of public justice, exceeds the power given to him by law and does the act causing the death in good faith believing it (the act) to be lawful and necessary for due discharge of his duty and without ill-will towards the deceased; (iv) If the act is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and the offender does not take undue advantage or does not act in cruel or unusual manner; (v) If the deceased being above the age of eighteen years suffers death or takes the risk of death with his own consent. 14. One of the arguments advanced on behalf of the accused is that he happened to commit the crime while deprived of power of self control by grave and sudden provocation given by the deceased. It was suggested to PW-1 Vir Singh and PW-2 Dharam Pal, employees of Cedar Guest House that besides the deceased, the accused, PW-16 Jai Dev Sharma and his wife Nisha, there was another couple with them in the room where the incident took place and that all the six were enjoying a …10… drinking bout. The witnesses denied that there was any other couple, in addition to the above named persons. In his statement, under Section 313 Cr. P.C, the accused pleaded that when the deceased, PW-16 Jai Dev Sharma, his wife Nisha and one more couple had been drinking for too long, he asked the deceased not to consume any more and upon that not only the deceased, but also PW-16 Jai Dev Sharma, his wife Nisha and the other couple started giving beatings to him and tried to snatch his pistol and in that confusion, the pistol went off accidentally. No suggestion on the lines of this plea was put either to PW-16 Jai Dev Sharma or his wife Nisha, who was examined as a Court witness by us. Also, the accused did not lead any evidence on the lines of this plea. He even did not disclose the names and addresses of the ‘other couple’ which fact implies that there were only four persons as claimed by the prosecution. Therefore, this plea of the accused cannot be accepted. 15. Accused pleaded another set of facts and circumstances to bring his case within the exception of grave and sudden provocation. The same appears in his written statement, under Section 233(4) Cr. P.C. He stated that when the deceased got over drunk, he asked her not to drink any more, which infuriated her and she picked up a stick and started giving beating to him and also called him and his parents names and this deprived him of the power of self control and he fired a shot from his pistol. Suggestions on the lines of this plea were put to PW-16 Jai Dev Sharma, who denied the same. Learned counsel representing the accused argued that injuries on the back of the accused, as noticed in MLC Ext. PCC by PW-18 Dr. N.K. Gupta, probabilised the plea. 16. We are not convinced by the argument. PW-18 Dr. N.K. Gupta very categorically stated that the injuries noticed by him, on the back of the accused, were in the nature of abrasions and that these could …11… not have been caused by a stick, unless the stick was rough or coarse and that likelihood of the injuries having been sustained in a fall could not be ruled out. It has come in the evidence that immediately after his arrest, accused told PW-7 SI Ramesh Chauhan that he had sustained injuries on his back, when he had a fall while fleeing away from the spot and, therefore, he was got medically examined from PW-18 Dr. N.K. Gupta at Civil Hospital, Kandaghat. Reference in this behalf can be made to the testimony of PW-7 SI Ramesh Chauhan, the then SHO, Police Station, Kandaghat and PW-6 HC Bhupinder Singh, who was accompanying PW-7 SI Ramesh Chauhan. The testimony of the two witnesses is corroborated by the contents of application Ext PR, which PW-7 SI Ramesh Chauhan submitted to PW-18 Dr. N.K. Gupta, to get the accused medically examined. So, we see no reason to disbelieve the testimony of the aforesaid two witnesses that accused told them at Kandaghat that he had sustained injuries as a result of fall, when he was trying to flee from the spot. Thus, the plea of grave and sudden provocation, based on alternate set of facts, also fails. 17. It was also argued by the learned counsel for the accused that the incident took place when the deceased and the accused were drinking in the company of PW-16 Jai Dev Sharma and his wife Nisha and that the accused could not have opened the fire without there being some quarrel or fight. He argued that it appeared that there was a drunken brawl in which the appellant-accused happened to fire a shot through his pistol. To buttress this argument he drew our attention to the testimony of PW-16 Jai Dev Sharma and his wife CW1 Nisha. Both of whom stated that while drinking, the accused and the deceased entered into some argument. The statements of the two witnesses in no way advance the argument of the learned counsel. The witnesses have stated that the …12… deceased and the accused started arguing while drinking. They have nowhere stated that any quarrel muchless a fight took place between them. Therefore, this submission of the learned counsel is also of no avail to the accused. 18. Learned counsel then submitted that the fact that accused fired just one shot indicates that he did not have the intention to kill the deceased or to cause any fatal injury nor did he know that injury was sufficient in the ordinary course of nature to cause death. Evidence on record shows that the accused, who was sitting opposite to the deceased in a sofa chair, with a central table placed between his seat and that of the deceased, got up from his chair, went behind the deceased and fired a shot aiming at her head near the ear, viz. temporal region. The fact is testified by PW-16 Jai Dev Sharma as also his wife CW1 Nisha. We see no reason to disbelieve their testimony. The pistol, which the appellant- accused used, is of .32 caliber. A person aiming a shot at the temporal region of another person with a fire arm of .32 caliber and then pressing the trigger and not missing the target cannot be said to have had no intention to kill the person targeted. There can never be direct evidence of intention. It is only from the circumstances, surrounding the commission of an act and the conduct of the person concerned, that it has to be gathered whether he intended the ultimate consequence of his act or not. In the present case, the act and the conduct of the appellant clearly suggest that he intended to kill the deceased or at least to cause such an injury to her, which he knew would result in her death in ordinary course of nature. 19. It was also argued that accused had been drinking for the last several hours and because of excessive drinking, he could not have been in a position to contemplate the consequence of his act. From the …13… conduct of the accused, at the time of the commission of the act as also soon after the commission of the act, it does not appear that he was over drunk to the extent, the learned counsel wanted us to assume. PW-16 Jai Dev Sharma and his wife CW1 Nisha have very categorically stated that the accused got up from his seat, went behind the deceased, took out the revolver from his holster, fired a shot aiming at the head of the deceased and immediately thereafter ran downwards and then fled in his Bolero Jeep. The testimony of these two witnesses negate the plea that the accused was so over-drunk that he could not have intended the act or anticipated the consequence of his act. 20. For the foregoing reasons, we hold the appeal to be without merit. The same is, therefore, dismissed. ( Surjit Singh ), J April 30, 2008(ss) ( Surinder Singh ), J