1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Sabir Khan vs. State of Rajasthan D.B.Criminal Appeal No.1184/2003 against the judgment dated 18.10.2003 passed by Additional Sessions Judge (Fast Track), Pali, in Sessions Case No.62/2003. Date of Judgment :: 7th April, 2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE C.M.TOTLA Mr. Niranjan Singh, for the appellant. Mr. KR Bishnoi, PP, for the State. .... BY THE COURT : (PER HON'BLE MATHUR,J.) Learned Additional Sessions Judge (Fast Track), Pali by judgment dated 18.10.2003 convicted 2 the accused appellant for the offences punishable under Section 302 Indian Penal Code and also for Sections 25 and 27 of the Indian Arms Act. The accused appellant was sentenced to undergo life imprisonment and to pay a fine of Rs.2000/- for the offence punishable under Section 302 IPC, further to undergo six months rigorous imprisonment in default of payment of fine; to undergo two years rigorous imprisonment with a fine of Rs.1000/-, further to undergo one month's rigorous imprisonment in default of payment of fine for the offence punishable under Section 25 of the Arms Act and to undergo three years rigorous imprisonment with a fine of Rs.1000/-, further to undergo one month's rigorous imprisonment in default of payment of fine for the offence punishable under Section 25 of the Indian Arms Act. Briefly stated, facts of the case are that one Nasir Khan son of Raju Khan reported to Shri Bhanwarlal, Sub Inspector, Police Station Sadar, Pali at Bangad Hospital, Pali, that Sabir Khan was keeping enmity with his son Shahjad Khan, as few days earlier he supported Pappu Khan with whom Sabir was quarreling. As per the report submitted by Nasir Khan, on 17.10.2002 at about 06:15 AM Shahjad Khan was going for natural routine and at that time Sabir Khan, Ummed Khan and Khime Khan, all sons of Hussain Khan were standing close to road near Bherunath factory. Sabir Khan was carrying a loaded gun wherefrom he fired, 3 consequent to which one pellet hit to Shahjad on his hand and another hit just below to arm-pit. Shahjad Khan died at the spot. The incident was seen by Peeru Khan son of Bhure Khan, resident of Shero Ki Dhani. On basis of the information aforesaid, a case was lodged, regular investigation was made, charge sheet was filed against accused appellant Sabir Khan, case was committed to the court of Sessions and the charges for commission of offences punishable under Section 302 IPC and 25 and 27 of the Indian Arms Act were framed. The accused denied the charges, therefore, regular trial was conducted. The prosecution supported its case by producing 25 witnesses (PW-1 to PW-25) out of whom PW- 1 Peeru Khan was said to be an eye witness of the incident. The prosecution also produced 65 documents and relied upon the contents of the same. After recording the evidence of the prosecution witnesses, an opportunity was given to the accused to explain the circumstances appearing against him in the evidence wherein the appellant denied the allegations and stated that he was innocent and was falsely implicated in the case. In support of the defence no witness was examined, however, one document Ex.D/1 was produced. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial court 4 reached at the conclusion that homicidal death of deceased Shahjad is proved as he died because of a gun shot injury. The trial court held the accused guilty for an offence punishable under Section 302 IPC and also under Sections 25 and 27 of the Indian Arms Act. Accordingly, he was convicted and sentenced as stated above. In appeal, though various contentions are raised, however, essentially emphasis is given to the argument that the offence which has been committed by Shahjad is not murder punishable under Section 302 IPC but an offence falling under exception IV of Section 300 punishable under part-III of Section 304 IPC, as the offence is culpable homicide not amounting to murder. It is asserted by counsel for the appellant that one gun shot was fired and immediately thereafter accused fled away without taking any undue advantage of the circumstances. The argument is supported by various judgments including Daya Nand v. State of Haryana, reported in AIR 2008 SC 1823; Hanumana Ram v. State of Rajasthan, reported in 2010(1) CJ(Cr.)(Raj.) 69; and Daud Khan v. State, reported in 2009(1) CJ (Cr.)Raj.) 449. We have considered the arguments advanced and also examined the record available. 5 PW-4 Dr.A.K.Naval conducted autopsy on the body of deceased Shahjad, thus, he proved the postmortem report Ex.P/5, according to which the cause of death was shock due to antemortem gun shot injuries to vital organs i.e. heart and lungs. As per medical evidence, deceased was having two gun shot injuries, one in the arm and another below the arm close to chest. There was no blackening at the point of insertion of pellets. On basis of medical evidence the undisputed position emerges out is that the death of Shahjad was homicidal one. PW-7 Bhanwarlal Choudhary at the relevant time was Station House Officer of Police Station Sadar and, therefore, he narrated all the steps taken during the course of investigation by the investigating agency. As per this witness a muzzle loaded gun, certain pellets and explosive were recovered from the accused as per Ex.P/31. So far as eye witness PW-1 Peeru Khan is concerned, he did not support the prosecution case, therefore, he was declared hostile. An another chance witness PW-2 Smt. Pyari also declared hostile as she also not supported the prosecution. 6 PW-18 Majid Khan and PW-21 Yusuf, in presence of whom recovery was said to be made, also not supported the prosecution and, therefore, they too were declared hostile. However, PW-13 Nasir, PW-14 Smt. Rashida and PW-15 Parvej supported the prosecution case. As per these witnesses in the morning of 17.10.2002 Shahjad was going to meet natural call and at that time a gun fire was made by Sabir Khan, the accused, consequent to which Shahjad died. All the three witnesses aforesaid are not eye witnesses of the incident but came out from their house and rushed to the spot of occurrence on hearing the sound of fire. It is also relevant to mention that PW-13 Nasir Khan is father of deceased, PW-14 Smt. Rashida is mother of deceased and PW-15 Parvej is younger brother of deceased Shahjad. Ex.P/65 is the report of Forensic Science Laboratory and as per that the single barrel muzzle loading gun which was sent by the police, after making recovery from the accused, was serviceable fire arm and the same was used, however, definite time of that was not given, five damaged lead pieces could have been fired from submitted single barrel muzzle loading gun and also that metallic/lead pieces, those were recovered from the house of accused, could have been used as projectiles from a muzzle loading fire arm. 7 The trial court mainly relied upon the statements of PW-13, PW-14 and PW-15 and also upon the connecting medical and scientific evidence including Forensic Science Laboratory report Ex.P/65. After arguing the matter for some length, as already stated above, learned counsel for the appellant confined and stressed only on the one contention i.e. about nature of offence. We have thoroughly considered all the judgments cited by learned counsel for the appellant and in all those cases fire arms were used, but looking to peculiar facts of each case the offence found established were converted to either Part-I or Part-II of Section 304 IPC. Hon'ble Supreme Court in Daya Nand's case (supra) dealt with the entire issue relating to ingredients of offence of murder as defined under Section 300 IPC and reached at the conclusion that even if intention of accused was limited to infliction of a bodily injury sufficient to cause death in ordinary course of nature and did not extend the intention of causing death, the offence would not be murder. Clause (c) of Section 299 and clause (iv) of Section 300, both require knowledge of the probability of the act causing death. Clause (iv) of Section 300 would be applicable where the knowledge of offender is 8 to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, the approximates to a practical certainty. Such knowledge on the part of the offender must be of highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury. In the case in hand, on total examination of the evidence available, it appears that the gun shot was made by using a muzzle loading fire arm and that was from some distance or at least from a distance of more than 4-5 feet as there was neither burn on the body of deceased nor any blackening on the clothes worn by him. The accused gave only one gun shot though he had opportunity and time to repeat the same and to take undue advantage of the situation. His act, in totality of facts of the case, is not cruel or unusual and, therefore, applying the principles enunciated by Hon'ble Supreme Court in the case of Daya Nand (supra) we are of the view that the act of the accused falls under exception IV of Section 300 IPC punishable under part-I of Section 304 IPC. Accordingly, this appeal succeeds in part. The conviction of the accused for the offences punishable under Sections 25 and 27 of the Indian Arms Act is upheld. However, the conviction under Section 9 302 IPC is altered to Section 304 part-I IPC for which accused is sentenced to rigorous imprisonment for nine years with a fine of Rs.5000/- and in default of payment of which further to undergo simple imprisonment for a period of three months. ( C.M.TOTLA ),J. ( GOVIND MATHUR ),J. Mathuria KK/ps.