Uttarakhand High Court
Through: Shri Arvind Vashisht vs State Of Uttarakhand on 2 September, 2022
Author: Sanjaya Kumar Mishra
Bench: Sanjaya Kumar Mishra, Ramesh Chandra Khulbe
Judgment Reserved
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Appeal No. 27 of 2017
Anuj Chauhan. ................Appellant.
Through: Shri Arvind Vashisht, learned Sr.
Advocate assisted by Shri Imran Ali Khan,
learned counsel for the appellant.
-Versus-
State of Uttarakhand
.........Respondents.
Through: Shri J.S. Virk, learned Deputy
Advocate General with Shri Rakesh Joshi,
learned Brief Holder for the State.
Reserved on : 07.06.2022
Delivered on : 02.09.2022
Coram:
Shri Sanjaya Kumar Mishra, J.
Shri Ramesh Chandra Khulbe, J Per: Shri Sanjaya Kumar Mishra, J.
1. In this appeal, appellant Anuj Chauhan takes exceptions to his conviction recorded by learned Sessions Judge, Haridwar in Sessions Trial No. 256 of 2012 under Section 302, 504 of the Indian Penal Code, 1860 (hereinafter referred to as "Penal Code" for brevity) and under Section 27 and 30 of the Arms Act, 1959 (hereinafter referred to as "Arms Act" for brevity) vide judgment and order dated 19.12.2016 and he has been sentenced to undergo imprisonment for life and to pay a sum of Rs. 5,000/- and in default, to further undergo rigorous imprisonment of six months under Section 302 IPC; to undergo rigorous imprisonment of three years and to pay fine of Rs. 2,000/- and in default, to further undergo rigorous imprisonment of three months under Section 27 of the Arms Act.
22. Deceased Sanjay, younger brother of PW1 Mukesh Kumar - complainant in this case, was carrying on the business of construction activities. Appellant - Anuj Chauhan promised to secure a job for Ravinder and he was paid Rs. 70,000/- for it by the deceased. When appellant - Anuj Chauhan did not fulfil his promise, he was approached by deceased several times for return of the money. On 08.07.2012, deceased - Sanjay and PW2 Ravi Kumar went to the office of appellant - Anuj Chauhan situated in Shivalik Nagar asking him to return the money. When they arrived there, appellant was not present in his office but later on at about 11.00 - 11.30 a.m., he arrived at his office situated in Shivalik Nagar, Ranipur. There deceased Sanjay asked the appellant to return the money, as a result of which, the appellant started abusing him. When the deceased protested about the abuses made by the appellant, appellant - Anuj Chauhan took out his revolver and shot the deceased on his head. As a result of which, the deceased fell on the ground. He was shifted to Bhuma Niketan Hospital where he was given some treatment and referred to Jolly Grant Hospital wherefrom he was shifted to AIIMS, Delhi. Initially, on the date of incident, PW1 Mukesh Kumar lodged a report before police station - Ranipur for which case crime no. 252 of 2012 was registered under Section 307 of the Penal Code and the investigation of the case was taken up.
In the course of investigation, the investigating officer examined the witnesses, visited the spot, prepared the spot map, seized the bloodstained earth and simple earth from the spot. On that date itself, he arrested the appellant while he was travelling in his vehicle i.e. white colour Tata Safari and from his possession, one revolver of .32 caliber along with five live and one empty cartridge were seized. After receiving the information about death of the deceased, the investigating officer turned the 3 case into one under Section 302, 504 of the Penal Code, and also added the offences under Section 27 and 30 of the Arms Act. Upon completion of post mortem examination, receipt of the Forensic Science Laboratory report from Lucknow, the investigating officer submitted a charge-sheet against the appellant under Section 302, 504 of the Penal Code and under Section 27 and 30 of the Arms Act. The defence took a plea of denial and also tried to make out a case that in an accidental firing the deceased sustained injury and died.
3. In order to prove its case, the prosecution has examined 15 witnesses, in total. PW2 Ravi Kumar is the solitary eye witness examined on behalf of the prosecution. PW1 Mukesh Kumar is the complainant, who happens to be the elder brother of the deceased. PW3 Ravinder Kumar speaks about the payment of Rs. 70,000/- to the appellant by deceased Sanjay Kumar. He is also a post occurrence witness. PW6 Shishir Chaudhary is also a post occurrence witness. He also speaks about the meeting of the deceased and PW2 Ravi Kumar with him just before the incident at Shivalik Nagar. PW5 Deshpal has not supported the case of the prosecution. PW10 Zuber Ahmad is a witness regarding the discussion held between the deceased and others regarding the recovery of money from the appellant. PW13 Ramu is witness to the seizure of bloodstained earth and simple earth from the spot. Rest of the witnesses are official witnesses. PW4 Dr. Kuldeep Kumar is the doctor, who attended the deceased, at the first instance and found injury on the head of the deceased caused by a firearm, when deceased was alive. He gave first aid treatment to the deceased and referred him to Jolly Grant Hospital. PW8 Balvir Singh, Sub Inspector of Police, attached to Police Station Safdarganj Enclave, New Delhi, has on receiving the information from AIIMS, Delhi prepared an inquest report on the dead body 4 of the deceased. PW9 Head Constable P.Asha Ram has registered the FIR. PW 11 Dr. Sanjay Kumar, a doctor of AIIMS, who has conducted post mortem examination on the dead body of the deceased. PW12 Santa Ram is a Police Constable, who was present, when the appellant was arrested and from his possession a firearm was recovered along with five live and one empty cartridges. He has identified the firearm along with live and empty cartridges in the court. PW14 Vipin Bahuguna, Sub Inspector, Ranipur, is the investigating officer of the case. PW15 Madan Mohan Yadav is Scientific Officer of Forensic Science Laboratory, Lucknow, who has conducted the ballistic examination of the firearm and material object sent to him.
4. In addition to the examination of these eye witnesses, the prosecution has also relied upon several other documentary exhibits like FIR, memo of recovery, memo of seizure of bloodstained and simple earth, memo of seizure of revolver, memo of appellant's bloodstained shirt, postmortem report, inquest report and SFSL report etc.
5. The defence, on the other hand, has examined two witnesses on its behalf. They are DW1 - Ajay Mohan Paliwal a hand writing expert and DW 2 Vinod Kumar, Deputy General Manager, Idea Communication Ltd.
6. After taking into consideration the evidences available on records, arguments advanced by the prosecution and the defence, learned Sessions Judge came to the conclusion that there are enough material available on record to conclude that there was a motive on the part of the appellant to commit murder of the deceased and that the eye witnesses account regarding the murder of the deceased by the appellant suffers from no discrepancy and prosecution has proved its case beyond all 5 reasonable doubt. Hence, he proceeded to convict the appellant, as stated above and sentenced him accordingly.
7. Shri Arvind Vashisht, learned Senior Advocate appearing on behalf of the appellant would submit that the contents of the inquest report, in which PW1 Mukesh Kumar, was a signatory presents a different version of the case. He further would submit that ballistic report is negative or at best, it can be said to be inconclusive and therefore, prosecution case cannot be believed. Learned Sr. Advocate would further submit that even if, the prosecution case is accepted, then also offence under Section 302 of the Penal Code is not made out, as incident was occurred in a spur of moment without any premeditation, therefore, the appellant should have been convicted for the offence of culpable homicide not amounting to murder and sentenced accordingly.
8. Shri J.S. Virk, learned Deputy Advocate General would submit that when the prosecution has presented an unimpeachable narration of an eye witness - PW2 Ravi Kumar, then all the other aspects become less important. In any case, learned Deputy Advocate General would argue that the statement made in the inquest report by PW1 Mukesh Kumar is not a substantive piece of evidence. As firstly, such a statement is not required to be made and secondly, there is no legal sanctity of making such statement. Such a statement made by PW1 Mukesh Kumar will not be treated as a substantive piece of evidence, as he was not an eye witness of the occurrence.
Learned Deputy Advocate General would further submit that the report of the Forensic Science Laboratory is not negative. It shows that firearm was used but special grooving or the characteristics were not present on the two pieces of metal recovered from the head of the deceased. Therefore, in view of 6 clear and unimpeachable evidence available on record the appellant should be held guilty for committing murder of deceased Sanjay. In countering to the alternative argument advanced by learned Sr. Advocate, Shri J.S. Virk, learned Deputy Advocate General would further submit that the occurrence took place when the deceased demanded the money back from the appellant and the appellant himself abused the deceased and then fired upon him from a very close range and the bullet struck on the vital part of his body, i.e., on the head causing his death after few days of his treatment. Thus, it cannot be said that the incident took place in a spur of moment and the appellant has rightly been held guilty for committing the offence of murder. Hence, learned Deputy Advocate General for the State would submit that the appeal deserves no merits and should be dismissed.
9. It is apparent from the perusal of the impugned judgment, which is fairly detailed one and from the submissions made by learned Sr. Advocate appearing for the appellant that defence does not dispute the fact that death of the deceased was homicidal in nature and it was due to gunshot injury but to be sure we have also examined evidence of PW11 Dr. Sanjay Kumar, who conducted the post mortem examination on the dead body of the deceased and prepared the post mortem examination report, i.e., Exhibit A-8. It is apparent form his evidence that he found, head of the deceased was bandaged and on opening the bandage, he found oval shape injury of size 2.0 cm X 1.5 cm with brownish edges and irregular abrasions. The wound had blackening in the area of 1 cm. On opening of brain, he found injury to the brain and also recovered two metallic pieces, which were preserved for ballistic examination. On a reference to the 7 post mortem examination report prepared by PW 11 - Dr. Sanjay Kumar, it is seen that he found following injury:
"1. 3.0 cm long stitched entry wound present antero posteriorly over left temporal region, situated 10.0 cm away from midline (vault of skull) and 5.0 cm above the upper part of left pinna. On stitch removal it is oval in shape measuring 2.5 X 1.5 cm having irregular brownish coloured abraded margins, surrounded by 1.0 cm wide area of blackening and about 2.0 cm wide area of tattooing. On further exposure, an oval bony defect measuring 2.0 X 1.5 cm is present in parietal temporal bones with multiple fissures fractures of temporal bone radiating backward and downward in posterior part. On opening the skull, there is inward bevelling of inner table of skull bone at oval deficiency. Further, tract goes to tear meninges in temporo
- parietal region and penetrate backwardly to penetrate the occipital lobes of left cerebrum and hit the occipital bone making an outward depression in occipital bone surrounded by multiple fissure fractures. Multiple bone chips and metallic fragments are present in lacerated brain matter along the tract. A deformed metallic fragment of size 1.4 X 1.0 X 0.5 cm is entangled in meninges in occipital region in the outward depression of occipital bone. Sub scalp extrvasation of blood is present in left fronto temporo parieto occipital and right frontal regions. Diffuse film of subdural haemorrahage is present over left cerebral hemisphere and diffuse thin film of subarachnoid haemorrahage is present over both cerebral hemisphere. Brain matter is grossly congested and oedematous.8
2. Multiple bluish coloured contusions present in an area 4 X 3 cm on lower part of anterior aspect of chest in left side."
10. Thus, it is apparent from the record that whatever has been stated by PW11 Dr. Sanjay Kumar, on oath, before the court is supported by his contemporaneous findings recorded by him at the time of conducting post mortem examination. There is no suggestion from the side of the defence that post mortem report should be disbelieved or there is any lacuna therein. Hence, this Court is of the opinion that death of the deceased was definitely homicidal in nature and it was due to injury caused by a firearm.
11. Shri Arvind Vashisht, learned Senior Advocate has given much emphasis on the contents of the inquest report i.e. Exhibit A-5 wherein PW1 Mukesh Kumar was a signatory. As per entry made in column 9 of the inquest report, deceased Sanjay had gone to the spot for delivering sand where there was a dispute between two other persons and somebody fired, which accidently hit the deceased resulting into his death. However, such a statement made in the inquest report is not a substantive piece of evidence. Moreover, PW1 Mukesh Kumar himself was not an eye witness to the occurrence and he could not have known the exact reasons for which deceased sustained firearm injury. Moreover, PW1 Mukesh Kumar has denied to have made any such statement. At best, such statement can be taken as previous statement, which can be used only for the purpose of contradicting the statement of PW1 Mukesh Kumar - complainant.
12. As stated earlier, PW1 Mukesh Kumar is not an eye witness to the occurrence. He has not stated about anything witnessing the occurrence that had taken place on the fateful day, therefore, 9 even if he is contradicted, the evidence of PW2 - Ravi Kumar will not in any manner be disbelieved. So this Court is of the opinion that even if, statement has been made in the inquest report, at the time of preparation of inquest, by PW1 Mukesh Kumar, which is not a substantive piece of evidence, will not discredit the veracity of PW2 Ravi Kumar, an eye witness in this case.
13. In the case of Yogesh Singh v. Mahabeer Singh (2017) 11 SCC 195 the Supreme Court has held that the evidentiary value of the inquest report prepared under Section 174 of the Code of Criminal Procedure, 1973 is not a substantive piece of evidence and can only be looked into for testing the veracity of the witnesses of inquest. The object of preparing such report is merely to ascertain the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or caused by animals or machinery, etc. and stating in what manner, or by what weapon or instrument, the injuries on the body appear to have been inflicted.
14. So we are not inclined to accept contention raised by learned Senior Advocate to hold that only because there is such statement in the inquest report, the entire evidence of PW2 Ravi Kumar should be disbelieved to come to the conclusion that the prosecution failed to prove its case beyond reasonable doubt.
15. The ballistic report has been proved in this case, which has been marked as Exhibit A21. It is recorded in the ballistic report that there were insufficient special characteristics on the recovered bullet but that itself will not lead this Court to come to the conclusion that prosecution case should be disbelieved on the face of record.
1016. In the case of Gulab Vs State of Uttar Pradesh (2021) SCC online 1211, the Hon'ble Supreme Court, after taking into consideration its earlier judgment in Gurcharan Vs. State of Punjab (1963) 3 SCR 585 has held that there is no inflexible rule that in every case where an accused is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if an expert is examined. The Supreme Court further has held, having quoted with approval of its earlier judgment that it is possible to imagine cases where direct evidence is of such an impeachable character and the nature of injury disclosed by post-mortem notes is so clearly consistent with the direct evidence that examination of a ballistic expert may not be regarded as essential. The Supreme Court has further held that where the direct evidence is not satisfactory or disinterested or where injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading evidence of ballistic expert. In what cases, the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend on the circumstances of each case. In the reported case, the Hon'ble Supreme Court has further held that in that case was not a case where despite the recovery of fire arm or of the cartridge, the prosecution had failed to produce a report of the ballistic expert. Therefore, the failure to produce a report by the ballistic expert, who can testify to the fatal injuries being caused by a particular weapon is not sufficient to impeach the credible evidence of the direct eye witnesses.
17. In the case of Himanshu Mohan Rai Vs. State of Uttar Pradesh and another (2017) 4 SCC 161, the Hon'ble Supreme Court has taken into consideration its earlier judgment in the case 11 of Brijpal Singh Vs. State of Madhya Pradesh (2003) 11 SCC 219 and has held that normally, if the eye witness' evidence is absolutely acceptable, then such evidence could be accepted even if there is some contradictions in medical or ballistic reports. However, the oral evidence was not found acceptable in that case. In this case medical evidence supports the evidence of eye witness, which is absolutely unimpeachable.
18. Similarly, in the case of State of Madhya Pradesh Vs. Dhara Singh and another, (2009) 11 SCC 124, the Hon'ble Supreme Court has held that in what cases the examination of a ballistic report is essential to further prosecution version would depend upon circumstances of each case. It was further held that in the circumstances of the certain case, the non obtaining of report of ballistic expert, could not shake the prosecution case in the least.
19. Thus, in view of the aforesaid facts of this case, this Court is of the opinion that even if, the ballistic expert has not been able to give a definite opinion regarding recovered bullet's fragments from the brain of the deceased to have been fired from the weapon seized from the possession of the appellant, then also it will not go to shake the substratum of the prosecution case and this Court would not come to the conclusion that only because ballistic report is inconclusive the prosecution case should be thrown away.
20. In the ultimate analysis, the correctness of the learned trial court's findings would depend upon final the analysis of direct evidence available in the shape of narration of PW2 Ravi Kumar. PW2 Ravi Kumar has stated on oath that he was acquainted with deceased Sanjay as well as appellant Anuj Chauhan. He also knew PW3 Ravinder Kumar. PW3 Ravinder Kumar was in search 12 of a job and he was B. Tech. This witness has further stated on oath that appellant Anuj Chauhan was carrying on the work of labour contractor and had opened his office in Shivalik Nagar. About six months prior to the incident, there was a talk regarding the job of PW 3 Ravinder Kumar and appellant Anuj Chauhan has assured that he will get a job for PW3 Ravinder Kumar on the condition that he will give a sum of Rs. 1,50,000/- to him but on negotiation, they settled for an amount of Rs. 70,000/- and deceased Sanjay had given Rs. 70,000/- to appellant Anuj Chauhan for the purpose of securing a job for PW3 Ravinder Kumar. This witness has further stated that appellant Anuj Chauhan could not get a job for PW3 Ravinder Kumar and as PW3 Ravinder Kumar was insisting for return of money, deceased Sanjay approached appellant Anuj Chauhan for return of money but he was avoiding to repay the same. Then on 08.07.2012, PW2 Ravi Kumar and deceased Sanjay went to the office of appellant Anuj Chauhan but before that, they went to the office of Shishir Chaudhary (PW6) where they revealed before PW6 Shishir Chaudhary that they are going to request appellant Anuj Chauhan to return Rs. 70,000 to him. On arrival, at the office of the appellant, he was found absent and the office was closed. They waited for some time and at about 11.00 - 11.30 a.m. appellant Anuj Chauhan came to the spot and when deceased demanded the money, appellant started abusing and using filthy language and stated that deceased Sanjay used to demand money every morning and spoil his mood daily. This witness has further stated that on such reaction by the appellant, the deceased stated that he should return money and should not abuse them, at this juncture, the appellant took out his revolver and shot the deceased. The bullet hit the head of deceased. He fell down on the ground. Thereafter, the deceased, in an injured state, was 13 taken in the vehicle of appellant Anuj Chauhan, to Bhuma Niketan Hospital. However, in the entire evidence of PW2 Ravi Kumar, not a single contradiction has been pointed out by the defence.
21. Learned Sr. Advocate for the appellant would submit that evidence of PW2 Ravi Kumar cannot be believed because he has stated that the deceased was shifted to hospital in the vehicle of appellant whereas PW6 Shishir Chaudhary has stated that another vehicle was used for shifting the deceased from the spot to the Bhuma Niketan hospital. However, such minor contradiction is not hitting the core of the prosecution case and only because PW6 Shishir Chaudhary has stated that the deceased was taken from the spot in one vehicle whereas PW2 Ravi Kumar has stated that he was taken in another vehicle would not demolish the evidence of PW2 Ravi Kumar which is true in the main. It is true that PW2 Ravi Kumar is the solitary eye witness to the occurrence and rest of the witnesses are post occurrence witnesses but that itself will not make his evidence doubtful.
22. Section 134 of the Indian Evidence Act, 1872 lays down that no particular number of witnesses is required to be examined to prove a fact. The basic purport of the aforesaid provision is that a single or solitary truthful witness may be sufficient to prove the case of prosecution. In many cases, a single truthful witness may far out weight a number of untruthful witnesses in term of probative value that he may carry. This question was considered by the Hon'ble Supreme Court in the case of Vedivelu Thevar Vs. State of Madras, (1957) SCR 981, wherein the Hon'ble Supreme Court has laid down the criteria or consideration of appreciating the evidence of solitary witness. For the first time, 14 the Hon'ble Supreme Court came to hold that witnesses can be categorized in three categories viz. wholly reliable witnesses, wholly unreliable witnesses and neither wholly reliable witnesses nor wholly unreliable witnesses. The Hon'ble Supreme Court has held that as far as the first category of witnesses are concerned, there is no difficulty for the Court to come to a conclusion.
23. In this case, PW2 Ravi Kumar has been held to be a reliable witness by the learned Sessions Judge and while recording his findings the learned Sessions Judge has come to the conclusion that this particular witness is an independent witness, he has no axe to grind to against the appellant. Not even a suggestion has been given to this witness that he has inimical deposition toward appellant which may be a motive for deposing a falsehood implicating the appellant in a heinous crime like murder. Moreover, as stated earlier, there is not a single contradiction in the evidence of this witness and evidence of this witness is duly corroborated by medical evidence available in this case, in the sense that death of the deceased was caused because of fire arm injury caused on his head.
24. On the top of it, there are other materials like evidence of PW3 Ravinder Kumar and PW6 Shishir Chaudhary. PW3 Ravinder Kumar has stated, on oath, that he has paid Rs. 70,000/- to appellant Anuj Chauhan through deceased Sanjay but appellant did not secure a job for him, as promised by him and also adopted delaying tactics for repayment of money. He has also stated that about 10 - 12 days prior to the incident, he has called a meeting of gentlemen for recovery of money. PW 6 Shishir Chaudhary has stated, on oath, that on 08.07.2012 at about 11.00 - 11.30 a.m., the deceased and PW2 Ravi Kumar came to his office at Shivalik Nagar and they wanted to meet appellant Anuj 15 Chauhan for recovery of money. Thereafter, they went to the office of appellant Anuj Chauhan; 5-7 minutes thereafter, he heard a gunshot and went towards to the spot. There, he saw at about 11.00 - 11.30 a.m. deceased Sanjay was lying with bleeding injury and appellant Anuj Chauhan was there with revolver in his hand. Thereafter, crowd gathered there and the deceased was shifted by witnesses - PW6 Shishir Chaudhary and PW2 Ravi Kumar to Bhuma Niketan Hospital; therefrom he was shifted to Jolly Grant Hospital and then to AIIMS, Delhi. On the next day, the deceased succumbed to his injuries. He has stated that deceased Sanjay was lying in front of office of the appellant.
25. The evidence of PW2 Ravi Kumar also received corroboration from the solemn testimony of PW13 Ramu and PW14 Vipin Bahuguna, the Investigating Officer. It is apparent from the record that in the presence of PW13 Ramu, another witness PW14 Vipin Bahuguna seized bloodstained and simple earth from the spot, which was sent for chemical and serological examination and on examination, it was found that bloodstained earth was stained with human blood, which goes a long way to establish that investigating officer has objectively determined the spot in this case. Though there are certain suggestions from the side of defence that there is discrepancy regarding the exact spot from where the deceased was lying. This Court is of the opinion that when human blood was found in bloodstained earth seized from the spot, there should not be any reasonable doubt regarding objective determination of the spot. In this case, we are of the opinion that evidence of the investigating officer along with PW13 Ramu is sufficient to prove that the deceased was lying injured in front of the office of appellant Anuj Chauhan.
1626. Ocular evidence is considered by Indian courts to be the best possible evidence that can be led in a case where serious offence alleged to have been committed by the accused person unless there are reasons to doubt the same. The evidence of PW2 Ravi Kumar is unimpeachable. There is no material contradiction in the evidence of PW2 Ravi Kumar with the earlier statement made by him before the police. His evidence is fully supported by medical evidence in this case. There is narration of PW6 Shishir Chaudhary a post occurrence witness and narration of PW2 Ravi Kumar regarding the payment of Rs. 70,000/- for securing a job for Ravinder. There is objective determination of the spot and recovery of 0.32 caliber revolver along with 5 live and one empty cartridges from the possession of the appellant.
27. Thus, this Court is of the opinion, not only the evidence of PW2 Ravi Kumar is unimpeachable but also wholly reliable. It is also duly supported and corroborated by attending circumstances like medical evidence, pre and post occurrence scenario, determination of the spot and reasons for the crime and recovery of revolver from the appellant. This Court is of opinion that learned Sessions Judge has not committed any error in convicting the appellant for the offences, as stated.
28. We further observe that determination of a criminal case, in the ultimate analysis, depends on the robust common sense and trained intuition of a trial judge and in this case, learned Sessions Judge has considered the evidence in its proper perspective having perspicacious view of materials available on record and has come to a right conclusion, which requires no interference by this court of appeal. In that view of the matter, we are not inclined to hold that appellant has not committed murder of the deceased.
1729. As far as submission of learned Sr. Advocate that the offence is not of a murder but a culpable homicide not amounting to murder, we are of opinion merely because he let his vehicle to be used for shifting deceased in an injured condition to the Bhuma Niketan Hospital for treatment will not make it a case of culpable homicide not amounting to murder.
30. In order to bring in the case within the purview of exception 4 of Section 300 of the Penal Code, the defence must establish by preponderance of probability that the homicide was committed without any premeditation, in a sudden fight, in the heat of passion, on a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or in usual manner. Firstly, it is seen that there was no sudden fight in the heat of passion in this case. There was continuing dispute for some time between the appellant and deceased regarding the return of Rs. 70,000/- which deceased had paid to the appellant for securing job for PW3 Ravinder. On earlier occasion also, he has approached the appellant for recovery of money but the appellant was delaying the matter. It was the appellant who abused the deceased. There was no quarrel between them at all. Moreover, the appellant has taken undue advantage in this case and also, acted in a very cruel manner by shooting the deceased from point blank range on his head causing his death.
31. Thus, this Court is of the opinion that the prosecution has established its case beyond all reasonable doubts. The contention of the learned Sr. Advocate that this case not a case of murder but case of culpable homicide not amounting to murder is not acceptable. Thus, in the ultimate analysis, the appeal fails and is hereby dismissed. The trial court judgment convicting the appellant for the offences under Section 302, 504 of the Penal 18 Code and under Section 27 and 30 of the Arms Act and sentences awarded therefor are hereby upheld. Trial court records be sent back forthwith.
(Ramesh Chandra Khulbe, J.) (Sanjaya Kumar Mishra, J) SKS