Allahabad High Court
Ram Manohar vs The State Of U.P. on 4 February, 2019
Author: Ritu Raj Awasthi
Bench: Ritu Raj Awasthi, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH (Judgment reserved on 05.12.2018) (Judgment delivered on 04.02.2019) (AFR) Case :- CRIMINAL APPEAL No. - 1224 of 2007 Appellant :- Ram Manohar Respondent :- The State Of U.P. Counsel for Appellant :- Shishir Pradhan,Maneesh Kumar Singh,Navita Sharma,R.N.S. Chauhan,Sheo Prakash Singh Counsel for Respondent :- Govt.Advocate And Case :- CRIMINAL APPEAL No. - 1144 of 2007 Appellant :- Ram Prakash Yadav And 2 Ors. Respondent :- The State Of U.P. Counsel for Appellant :- Shishir Pradhan,Chandra Prakash Tiwari,Maneesh Kumar Singh Counsel for Respondent :- Govt.Advocate Hon'ble Ritu Raj Awasthi,J.
Hon'ble Narendra Kumar Johari,J.
(Delivered by Hon'ble Narendra Kumar Johari, J.)
1. The applicant-accused Ram Manohar has preferred the Criminal Appeal No.1224 of 2007, under section 374 (2) of Cr.P.C. against the judgment and order of conviction and sentence dated 07.5.2007, passed by the learned Additional Sessions Judge, Court No.2, Raebareli in S.T. No.367/2000, relating to case crime no.114/98, police station- Gadaganj, District Raebareli, whereby the learned trial judge has convicted accused-appellant under section 302 of IPC to undergo life imprisonment and fine of Rs.10,000/-. Further the appellant was convicted under section 323/34 of IPC to undergo six months rigorous imprisonment and further he was convicted under section 504 IPC to undergo one year rigorous imprisonment and further he was convicted under section 3 (1) (X) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act) (in short SC/ST Act) to undergo one year imprisonment and fine of Rs.1,000/-. Appellant was also convicted under section 3(2) (5) of SC/ST Act to undergo life imprisonment and fine of Rs.5,000/-. In case of default of payment of fine, the court awarded additional six months' imprisonment.
2. The case of prosecution, in brief, is that on 08.8.1998, at approximately 12:30 PM, the accused persons Ram Manohar, Ram Prakash, Dinesh and Ashok alias Munnu Yadav, who were the residents of same village, came at the residence of Maharajdeen Pasi, the uncle of complainant. Ram Prakash Yadav demanded Rs.280/- from Amrit Lal Pasi, son of Maharajdeen Pasi. The amount was due as medical treatment fee. Amrit Lal replied that his labour wages for three months and ten days was due to accused persons. Further he submitted that let the due amount of medical treatment and labour wages be calculated and set off, accordingly the person who was having dues, he will pay to another. Hearing the reply of Amrit Lal, the accused-appellant Ram Manohar Yadav, who was serving in army, became angry and threatened Amrit Lal in the words :- " Paasi sale tumhara dimaag kharab hai. Zuban ladate ho."
Maharajdeen interfered in the matter and said that do not abuse and clear the dues by calculation. Hearing the voice of Maharajdeen the accused Ram Manohar Yadav fired on Maharajdeen Pasi with intention to kill. When complainant, Shyam Lal and Amrit Lal ran to save Maharajdeen then the accused persons Ram Prakash and Ashok Kumar alias Munnu, who were carrying lathis in their hands, beaten them and Dinesh who was carrying ''katta' (countrymade pistol) in his hands, threatened them that if anybody will come to rescue Maharajdeen, he will also be shot. By the injury of firearm on chest, Maharajdeen succumbed at the spot. It has also been mentioned in the FIR that apart from all above mentioned persons the witnesses Chhote Lal Pasi and Bhola Pasi and other residents of village have seen the incident. FIR of incident was lodged in the police station concerned at about 14:10 hrs on the same day.
3. The FIR of the occurrence was lodged at 14:10 hrs on the same day. Investigation started. The inquest and PMR of the deceased were done. The I.O. prepared the spot map and collected the blood stained and plain soil and also recovered two empty cartridges of 12 bore from the place of incident. Apart from that, injury report of injured Shyam Lal was prepared on 10.8.1998.
4. After investigation, the chargesheet was filed by the Investigating Officer against Ram Prakash Yadav, Dinesh Yadav, Ashok Kumar Yadav and Ram Manohar Yadav (the present appellant). The court of sessions, after committal, framed the charges against accused persons.
5. The following witnesses were produced by the prosecution :-
1PW-1, Ganga Charan Pasi Informant 2 PW-2, Shyam Lal Eyewitness and injured 3 PW-3, Amrit Lal Eyewitness 4 PW-4, C.P. 198 Karuna Shankar Chik FIR and GD entry 5 PW-5, Dr. S.R. Agarwal Prepared PMR 6 PW-6, Dr. Om Prakash Prepared the injury report of Shyam Lal 7 PW-7, Prem Chand Investigating Officer 8 PW-8 B.C. Mishra Prepared inquest As documentary evidence, the prosecution has submitted following papers :-1
Tahrir of occurrence Exhibit Ka-1 2 Fard recovery (Two empty cartridges) Exhibit Ka-2 3 Fard of soil Exhibit Ka-3 4 Inquest report Exhibit Ka-4 5 Chik FIR Exhibit Ka-5 6 Copy of G.D. Exhibit Ka-6 7 PMR Exhibit Ka-7 8 Injury report Exhibit Ka-8 9 Spot map Exhibit Ka-9 10 Chargesheet Exhibit Ka-10 (after recording of oral evidence of prosecution 11 Police form no.13 Exhibit Ka-11 12 Photo sketch of dead body Exhibit ka-12 13 Specimen seal Exhibit Ka-13
6. The following witnesses have been produced by the accused persons :-
1DW-1 Laxmi Shankar 2 DW-2 Gyan Prakash 3 DW-3 Raj Bahadur Singh 4 DW-4 Ranjeet Singh 5 DW-5 Dashrath Apart from that the following documentary evidence have also been filed by the accused persons :-1
Certified copy of FIR Crime No.4/2003, under section 379 IPC, against Amrit Lal son of Maharaj Deen 2 Tahrir FIR Crime No.4/2003, under section 379 IPC, against Amrit Lal son of Maharaj Deen 3 Authority letter of Major 270 Engineering Regiment Regarding drawal of licenced gun by accused on 28.12.1996 4 Certificate of Major 270 Engineering Regiment dated 21.11.1998 Regarding authority letter to carry private gun by one N.K. Mishra 5 Photocopy of discharge from Army employment of Ram Manohar Yadav 6 Arrest warrant By Commanding Officer dated 21.11.1998 7 Movement Order dated 21.11.1998 By Commissioned Officer 270 Engineering Regiment 8 Photostat copy of order dated 07.01.1998 Passed by ACJM Raebareli
7. So far as the prosecution evidence is concerned, the witness Ganga Charan has deposed as PW-1 that he is the eyewitness as well as informant of occurrence. He has narrated that the fateful day was the day of ''Rakshabandhan' festival. He has described the occurrence as mentioned in the FIR. Also he has mentioned that two empty cartridges and plain and blood stained soil were recovered and fards were prepared before him.
8. As PW-2 Shyam Lal has deposed. He has narrated the same occurrence as was mentioned in the FIR. He has also stated that Ashok and Ram Prakash hit on his head by their ''lathis' and Dinesh was giving threats by the ''katta'. He has further stated that when ''daroga ji' came on spot, he was not present there. On the other hand, he came when the postmortem of the deceased was being done. Accused Ram Prakash who was working as doctor, demanded Rs.280/- which was due against the medical treatment.
9. Witness PW-3 Amrit Lal has deposed. He also stated about occurrence in same way as was mentioned in FIR. He has further stated that Ram Manohar has fired at his father on his chest and Ram Prakash and Munna hit his brother by ''lathi'. Dinesh was giving threat. He has further stated that the FIR was lodged by Ganga Charan. Empty cartridges and blood stained and plain soil was recovered by police before him and the ''fard' was also prepared before him. He has also verified his signatures over the ''fards'. Further, he has stated that he has also signed the ''panchnama' as witness.
10. As PW-4 CP 198 Karuna Shankar has proved the chik FIR, which was prepared on the basis of the tahrir FIR. He has also mentioned that he has entered the occurrence in the GD No.24 at 14:10 hrs on dated 08.8.1998.
11. As PW-5 Dr.R.S. Agarwal has deposed. He has stated that he has done the postmortem of the deceased Maharajdeen on dated 09.8.1998 at 02:45 PM. The age of deceased was about 50 years and time of death was one day prior. The ''rigor-mortis' was passed from both the hands and was present on legs. The deceased was having following ante-mortem injuries :-
(i) Gun shot wound of entry 3 cm x 2 cm on the right side of the chest, situated 3 cm below the right clevical. The direction of wound was antero-laterally and slightly downwards.
(ii) Multiple gun shot wound of entry in the area 30 cm x 11 cm on right side of the chest, all over the injury no.1 having side 0.5 x 0.5 cm. Tissues deep to cavity deep. Blackening of area was present.
He also mentioned that two cogs were recovered from the fractured third rib at lateral end and one plastic button also recovered from axilla. Apart from that six pellets were recovered. He has further stated in his evidence that the injuries may come by a fire of gun. Cause of death was due to shock and haemorrhage as a result of anti-mortem injuries. Deceased might have received the aforesaid injuries on dated 08.8.1998 at 12:30 PM. The deceased was hit by firearm approximately distance of 4 feet.
12. As PW-6 Dr. Om Prakash has been examined, who has inspected the injuries of Shyam Lal and prepared the injury report. He has further stated that he has examined the injured Shyam Lal on dated 10.8.1998 at 04:00 PM. The following injuries were present on his body :-
(i) One lacerated wound in the area 1.5 cm x 0.3 cm x 0.3 cm on the left side of head 11 cm above from the left ear with clotted blood.
Apart from that :-
(ii) There was complaint of pain on the whole body. The duration of injuries has been shown about two days and nature of injury was simple and was caused by hard and blunt object.
13. As PW-7, Prem Chand has been examined by prosecution. This witness was I.O. who has proved the steps taken by him during investigation of the occurrence. Further, he has submitted the chargesheet against accused persons. He has also deposed that after investigation, the prima-facie evidence came before him that the accused Ram Manohar Yadav, who was serving in Military, has fired upon deceased Maharajdeen, on his chest. Other accused persons had also committed offence. Further, it has been stated that the accused persons belong to Yadav community and deceased was ''harijan' and due to the reason the offence has been committed by the accused persons.
14. As PW-8, B.C. Misra has been examined. He has deposed that when he got the information about occurrence he was busy in meeting in Barabanki. He has got the information of occurrence through R.T. Set by control room. He reached at the place of occurrence via police station Gadaganj. Constable Adya Prasad Misra has given the relevant paper for inquest near police station and he started the proceedings of inquest when he reached at the spot. He has identified his signatures over the inquest report and submitted that he has prepared the said report. He has also mentioned that he sent the dead body for postmortem alongwith other papers. He has also recovered two empty cartridges and blood stained and plain soil from the spot.
15. After the prosecution witnesses the statement of accused persons recorded under section 313 Cr.P.C. who denied the allegations and incriminating substance and demanded for trial.
After recording the statement of accused persons under section 313 Cr.P.C., the following witnesses have been produced as defence witnesses :-
As defence witness Laxmi Shankar Tiwari has been examined as DW-1. He has stated in his examination in chief that Maharajdeen Pasi had died due to injury received by him on the southern side of village at the fringe of forest where the injured Maharajdeen was lying. That land was belonging to Dhanpat over which the deceased and others had taken the forceful possession in the month of ''Sawan'. There was dispute in between first and second wives and children of Maharajdeen. On the day of ''Rakshabandhan', at 11:00 O' Clock, he got the information in village that Maharajdeen is lying by receiving injuries on the southern end of village. He also reached there. There were so many persons of the village. At that time Maharajdeen was alive, who had been brought to police station ''Gadaganj' by the Tractor of Lal Bahadur. Ram Manohar had gone to the place of his duty two days prior to the incident. Amrit Lal and his wife and others have also received the compensation from the State Government. Accused Ram Prakash and others have been falsely implicated.
16. As DW-2 Gyan Prakash has been deposed. He has submitted that he is the Gram Pradhan of Kalyanpur Beti. He has also received the information about the injury to ''Maharajdeen' at 11:00 AM then he also reached at the spot. He has found that ''Maharajdeen' was lying in injured condition at the southern end of village. He did not know that ''Maharajdeen' was alive or dead. He was carried to the police station by Tractor trolly.
17. As DW-3 Raj Bahadur Singh has deposed. He has stated that his village is at the distance of 400 to 500 meter from village ''Ekdla'. He has stated that he had gone to the bank of Ganga river for taking bath. He had seen that at approximately 10:00 to 11:00 O' Clock at patri near the bank of Ganga 150 to 200 persons were collected. He also reached at the spot and saw that Maharajdeen was lying there in injured condition. The people were saying that the injured is living. The family member of Maharajdeen carried him to hospital by tractor of Lal Bahadur. He has also stated that accused persons Ram Manohar and others have been forcefully implicated in the occurrence.
18. As DW-4 Ranjeet Singh has given his evidence as he has also stated that on dated 08.8.1998 he had gone to Ekdla Ghat for bath. At about 11:00 AM he has got the information that Maharajdeen is lying in injured condition in the forest. When the witness reached on the spot he saw that Maharajdeen was lying in injured condition and there was bleeding from his chest. At the spot approximately 150 to 200 person were present. Maharajdeen was taken by Tractor Trolly before him. He has not disclosed how Maharajdeen had received injury.
19. As DW-5 Dashrath has deposed. He has stated in his examination in chief that his guava bagh is situated at the distance of 1 Km from Ekdla Ghat. At 11:00 O' Clock he heard that at the East side of the temple, near fields, an injured dead body is lying. Dead body was lying on southern part of the village Ekdla. He had also gone to see the dead body and saw that there was injury over the chest of dead body, which was bleeding little bit. The injured was taken by them to police station by the tractor of Lal Bahadur.
20. The learned Sessions Judge heard the arguments and perused the record, appreciated the evidence and convicted all the accused persons vide order dated 05.5.2007 and sentenced them vide order dated 07.5.2007.
Accused Ram Manohar Yadav (appellant) was sentenced for life imprisonment and Rs.3,000/- as fine under section 302 IPC and for life imprisonment and for Rs.5000/- as fine under section 3 (2) (5) SC/ST Act, rigorous imprisonment for six months under section 323/34 IPC, one years rigorous imprisonment under section 504 IPC, one year's imprisonment and Rs.1,000/- fine for the offence under section 3 (1) (X) SC/ST Act. Apart from that other accused persons namely Ram Prakash Yadav, Dinesh Yadav and Ashok Kumar Yadav alias Munnu have been sentenced for six months' rigorous imprisonment for the offence under section 323/34 IPC and one year's imprisonment and Rs.1,000/- as fine under section 3 (1) (X) SC/ST Act. Apart from that accused Dinesh Yadav was sentenced one year's rigorous imprisonment under section 506 IPC. It has been submitted by the learned counsel for the accused that except accused-appellant Ram Manohar Yadav, all the other accused have completed their sentence and have already been released from the jail.
21. In his argument, it has been argued by the learned counsel for the appellant that order of the learned Sessions Judge is against the settled principle of law. There are discrepancies in the statement of prosecution witnesses. No motive for offence has been proved. Medical evidence does not corroborate evidence of so-called eyewitnesses. The weapon alleged to be used in the incident was not recovered and the cartridges have not been sent to FSL. So, it cannot be inferred that the accused have used the weapons. At the time of alleged incident, the accused-appellant was not present in village, rather he was present at his duty. No independent witness has been produced. The witnesses produced as defence evidence have proved that place of occurrence is different. It has further been submitted by the learned counsel for the accused-appellant that alternatively he argues that the injury was of single shot. There was no intention or premeditation, hence, the case may be covered under section 304 IPC instead of Section 302 IPC.
In support of his arguments the following case laws have been submitted by the appellant-accused.
(i) State of Rajasthan vs. Daud Khan, (2016) 2 SCC 607
(ii) Gurdeep Singh vs. Jaswant Singh and Others; 1993 SCC (Cri) 278
(iii) State of U.P. Vs. Ram Bahadur Singh and Others; 2004 SCC (Cri) 1463
(iv) Mandata Singh vs. State of Rajasthan and Another ; 2004 SCC (Cri) 1465
(v) State of M.P. vs. Surpa; 2003 SCC (Cri) 1221
(vi) Samrat Shipping Co. Pvt. Ltd. Vs. Dolly George; 2003 SCC (Cri) 1224
(vii) Megha Singh vs. State of Haryana; 1997 SCC (Cri) 267
(viii) Ram Naresh vs. State of U.P. ; (2010) 15 SCC 252
(ix) Sachidanand Thakur vs. Union of India and Others ; (2010) 15 SCC 256
(x) Manjeet Singh vs. State of Himanchal Pradesh; (2014) 5 SCC 697
(xi) Mohd. Haroon and Others vs. Union of India and Another; (2014) 2 SCC (Cri)680
(xii) Surendra Singh alias Bittu vs. State of Uttraranchal; (2006) 3 SCC (Cri) 328
(xiii) Gonchi Rajashekhar Reddy and Others vs. State of U.P. and Others; (2006) 3 SCC (Cri) 332
(xiv) Sukhdev Singh vs. Delhi State (Govt of NCT of Delhi) ; 2003 SCC (Cri) 1714
(xv) Jameskutty Jacob vs. United India Insurance Co. Ltd. And Others; 2003 SCC (Cri) 1720 (xvi) Bimbadhar Parida and Others vs. State of Orissa; 1994 SCC (Cri) 26 (xvii) Atul Thakur vs. State of Himanchal Pradesh and Others; (2018) 2 SCC 496 (xviii) Sukhbir Singh vs. State of Haryana; 2002 SCC (Cri) 616 (xix) Virender vs. State (NCT) of Delhi; 2002 SCC (Cri) 628 (xx) State of U.P. Vs. Kamarujjama alias Malva and Others; 2002 SCC (Cri) 629 (xxi) Masumsha Hasanasha Musalman vs. State of Maharashtra; (Criminal Appeal no.2048 of 1996) (xxii) Banajeet Singh vs. State of U.P.; Criminal Misc. Application No.870 of 2000 (xxiii) Dharmendra vs. State of U.P. [2011 (1) JIC 292 (All)] (xxiv)Rajendra Pal Pathak vs. State of U.P. and Ors [2011 (1) JIC 296 (All)]
22. In reply, learned AGA has argued that there is no material or substantial contradiction in the evidence of witnesses. Occurrence took place near the residence of deceased person, where the accused persons reached with double barrel gun, ''lathis' and ''katta' with the clear intention of committing murder. The eyewitnesses are natural and reliable. If the double barrel gun was not recovered and the empty cartridges were not sent to FSL. It may be the latches of I.O. Considering the ocular evidence, the above shortcomings of investigations cannot be helpful for accused persons. The prosecution has succeeded to prove its case against accused-applicant without any doubt. Accused-appellant has failed to prove his alibi. The intention of accused to commit grievous offence was clear and proved. Provisions of Section 304 IPC does not applies. There is no illegality or irregularity in the judgment in question. Accordingly, appeal is liable to be dismissed. In support of his arguments the learned A.G.A. has submitted following case laws :-
1. Richhpal Singh Meena vs. Ghasi alias Ghisa and Others [(2014) 8 SCC 918]
2. Rahimbux vs. State of Madhya Pradesh [ (2009) 1 SCC (Cri) 422]
3. Hari Prasad vs. State of U.P. [ (2003) 9 SCC 60]
4. Bhilwara Synthetics Ltd vs. Commissioner of Central Excise, Jaipur, (2003) 9 SCC 63
5. Prithvi vs. Mam Raj and Others, [2004) 13 SCC 279]
6. Jagtar Singh and Another vs. State of Punjab and Others [ (2004) 13 SCC 289]
7. State of U.P. vs. Jagdeo and Others [ (2003) 1 SCC 456]
8. Yogesh Singh vs. Mahabeer Singh and Others [AIR 2016 Supreme Court 5160]
23. We have considered the arguments advanced by both the parties.
It has been argued by the learned counsel for the appellant that there was discrepancy in the statement of witnesses of prosecution, who have been examined as witnesses of fact. These witnesses are close relatives of deceased and are interested witnesses. The occurrence took place in open space accessible by public but no independent witness has been produced by the prosecution. So far as story mentioned in FIR is concerned, it has been mentioned that on 08.8.1998 at 12:30 PM the accused persons Ram Manohar, Ram Prakash, Dinesh and Ashok alias Munnu reached at the house of Maharajdeen Pasi. They were having licensed gun, countrymade pistol (katta), lathi-danda. Ram Prakash Yadav demanded Rs.280/- as his medical expenses which was due on them. Son of deceased protested and replied that his labour wages for three months ten days are still due to accused persons. Let the account be cleared. In between deceased interfered. On this dispute the co-accused Manohar Yadav hit gun shot at the chest of the deceased. Consequently, Maharajdeen died on the spot. When son of deceased tried to rescue Maharajdeen then accused Ram Prakash and Ashok alias Munnu hit him by lathis due to which his head got injured. Witness PW-1 the first informant has corroborated the story in his FIR. In his cross examination, learned counsel for the accused asked few questions regarding enmity of deceased with legal representatives of the family members of Dhanpati, which has been denied by the witness. Apart from that, the questions were asked about the dispute of property in between first wife and her son and second wife's son of Maharajdeen which has also been denied by the witness. Apart from the aforesaid suggestions, no evidence has been filed by the accused persons regarding enmity of deceased with any other person. Witness PW-2 is the son of deceased Maharajdeen, who at the time of occurrence, tried to save his father, as he had received the injury of gun shot but the co-accused persons hit him by their lathis. Learned counsel for the defence asked the question regarding enmity with first wife and sons of Maharajdeen but this witness has also denied. He has also stated that Ram Prakash had treated his mother and the money was due for that treatment. He has also stated that Amrit Lal, another son of deceased Maharajdeen, has done labour work at the residence of Ram Prakash for three months ten days and the labour charge/ wages were due. The questions were asked regarding enmity of deceased with Dhanpati but the witness has denied. On the other hand, he has said that the dead body of Maharajdeen was buried in the land of Dhanpati. Witness PW-1 has said that they have the possession over the land of Dhanpati. Accordingly, the PW-3 has given his evidence as was given by the PW-1 and PW-2. He has further stated that in 1995 the accused Ram Prakash has treated his mother and in the same year he had worked for three months ten days at the house of accused Ram Prakash although the witness PW-3 has denied that his father was married with a lady resident of Gram Sadba and Kesh Kumar, Bela and Gutti were the step brothers and sisters of the witness. He has also denied that Kesh Kumar had ever demanded any share in the property. He has also stated that they have good relations with the family of Dhanpati.
24. By the statement of PW-1, PW-2 and PW-3, it is quite clear that substantially there is no discrepancy in their statement. All the aforesaid witnesses have proved the version of FIR. So far as the defence tried to put his case by suggestions that the Maharajdeen has been murdered due to enmity with legal representatives of Dhanpati and first wife and children of Maharajdeen, but the prosecution witnesses never admitted the above suggestions. Defence failed to prove any documentary evidence regarding aforesaid denial of prosecution witnesses. The fact narrated by witness PW-2 is uncontroverted. As last rituals the dead body of his father got buried in the land of Dhanpati, in such a situation if there would have been any dispute of deceased with Dhanpati, Dhanpati must had been taken any legal action against the last rituals of deceased but there is nothing on record. Therefore, it is not proved that deceased was hit by any other person except accused Ram Manohar.
Although, the witnesses of prosecution no.1 to 3 are the family members of the deceased but no discrepancy is found in their statements. Regarding the same the legal principle has been laid down by this Court in Brahma Giri and Others vs. State of U.P.; 2004 (2) JIC 723 Allahabad that :-
Statement of family members of deceased not to be rejected only on the ground of his relations with victim. However, Court is required to scrutinize his statement with care.
In Nachchattar Singh vs. State of Punjab; 1998 SCC (Cr.) 949 it has been held by Hon'ble Apex Court that if incident of murder taking place in the house of deceased presence of two sons of deceased in their own house at the relevant time found natural and probable.
Hon'ble the Apex Court in case Gajju vs. State of Uttrakhand, 2013 Cri LJ 88 has laid down in para 15 of the judgment that :-
Mere fact that witness of prosecution were related to deceased would not result in doubting them. Statement of these witnesses which otherwise have credence are reliable and are duly corroborated by other evidence.
In such cases it is only the members of the family who came forward to depose. Once it is established that their depositions had not suffered from material contradictions, are trustworthy and in accordance with the above stated principles, the Court would not be justified in overlooking such valuable piece of evidence. The same principle has been applied by the Hon'ble Apex Court in para 11 of case law Ravi vs. State (Inspector of Police) 2004 (50) ACC 217 (SC) and in para 28 of Yogesh Singh vs. Mahavir Singh and Others, AIR 2016, Supreme Court 5160 and in para 7 of the judgment State of U.P. Vs. Jagdeo and Others 2003 (1) SCC 456.
Although, there seem some inconsistencies and exaggerations on questions put in their cross-examinations regarding the first wife and children of deceased Maharajdeen and on the point of inquest of deceased Maharajdeen and criminal history of PW-3 but the above discrepancies do not touch the core of prosecution story. Hon'ble the Apex Court in para 4 of the judgment Sumesh Lal vs. State of Bihar 2002 SCC (Cri) 511 has laid down that :-
Contradictions/ inconsistencies/ exaggeration/ embellishment and minor inconsistencies in the evidence of witness cannot be a ground for describing the evidence otherwise acceptable as competent and truthful. The same view has been taken by Hon'ble Supreme Court in para 6 of case State of Gujarat vs. Nageen Bhai Dhula Bhai Patel, 1983 (20) ACC 303.
In para 9 of the case Leela Ram vs. State of Haryana and Others, 2000 SCC (Cri) 222 :-
"9. Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in State of U.P. vs. M.K. Anthony; (1985) 1 SCC 505. In para 10 of the Report, this Court observed : (SCC pp. 514-15) "10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."
In case Shivappa and Others vs. State of Karnataka, 2008 CrLJ 2992 Hon'ble Supreme Court has held in para 19 that :-
"Minor discrepancies or some improvements also in our opinion, would not justify rejection of the statements of eyewitnesses if they are otherwise reliable. Some discrepancies are bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions into the Court."
It is to be noted that witnesses PW-1 to 3 have deposed that they are eyewitnesses. The evidence witness of PW-1 and PW-2 were recorded on dated 20.4.2004 and evidence of witness PW-3 was recorded on 12.7.2004. A large number of questions have been put before those witnesses in their cross examinations in comparison to their examination in chief. So, the time gap in between occurrence and evidence should be kept in mind. It is also to be considered that they marked their thumb impressions over their evidences.
25. The witnesses are rustic witness. PW-1 and PW-2 are uneducated as they have put their thumb impressions. They reside in backward rural area. The situation has been considered by this Court in para 34 and 39 in State of U.P. Vs. Shan-e- Haider and Others, 2015 (1) JCRC 775 and in para 28 of Tufail Ansari vs. State of U.P. 2015 (2) JCRC 1086. Considering the entire evidence of witnesses PW-1 to PW-3 it cannot be said that there is any material contradiction on the substantial points, therefore, their statement regarding the factum of occurrence seems credible and trustworthy.
26. It is also to be kept in mind that witness PW-2 is an injured witness. He has received the injury of hard and blunt object on his body. The witnesses PW-1 to PW-3 have stated in their depositions that witness PW-2 Shyam Lal was hit by co-accused persons Ram Prakash and Ashok. Although his medical examination took place after two days of occurrence but it has to be considered that the I.O. (PW-7) has got the information of occurrence on 10.8.1998 when he had reported on his duty after returning from Ayodhya. Exhibit A-8 is the injury report of witness PW-2 which has been prepared on the back sheet of injury memo prepared by Karuna Shankar, i.e., the witness PW-4 only he would have prepared the injury memo on the instruction of Investigating Officer. It has been shown in medico-legal paper of injured Shyam Lal that the duration of injury is about two days. The injury report has been proved by the witness PW-6 and he has also given the opinion that the injury could have been received by the injured on dated 08.8.1998 at 12:30 PM. Witnesses PW-7 (IO) has explained the delay. It has also to be considered that in his judgment dated 07.5.2007 learned Sessions Judge has convicted all the accused persons including accused Ram Prakash and Dinesh Kumar under section 323/34 IPC and 3 (1) (X) SC/ ST Act by considering the injury on the body of PW-2 but none of the aforesaid accused persons have preferred any appeal against this judgment.
In his statement the witness PW-2 who had no enmity with the accused persons has stated that he is the eyewitness of occurrence and when the accused Ram Manohar fired on the chest of Maharajdeen, he tried to rescue his father then accused persons Ram Prakash and Ashok hit him on his head by lathi. The witness was injured in the same occurrence, hence, it can be said that he is a stamped witness and his evidence cannot be doubted as it has been held by Hon'ble Supreme Court in para 6 of Navagan Bhai Soma Bhai and Others vs. State of Gujarat, 1995 SCC (Cri) 132 "Evidence of injured witness found generally acceptable regarding the presence and participation of appellants, mere fact that the injured witnesses have improved or have not given consistent version of part played by each of the accused can't be a ground for acquitting the accused persons, whose names have been consistently mentioned throughout the case." The testimony of injured policemen witnesses has been held as sustainable in Ravindra Shantaram Sawant vs. State of Maharashtra, AIR 2002 Supreme Court 2461.
In the case Majju and Others vs. State M.P. 2002 SCC (Cri) 597, it has been held by Hon'ble Apex Court that :-
The counsel for appellants contended that the evidence adduced by the prosecution was interested and therefore it cannot be relied upon. It is important to note that the witness examined on the side of the prosecution were all injured in the incident. PW-6 Ram Chandra sustained a grievous injury in the sense that he lost one of his tooth. The other witness also sustained injuries that is proved by the various medical certificates issued by the doctor, who examined them therefore the presence of these witnesses at the place of occurrence cannot be suspected. All these witnesses gave evidence to the effect that when they alongwith deceased Bihari Lal were coming from the temple after performing some ceremony the accused surrounded and attacked them. We did not find any infirmity in the evidence of these witnesses. In Prithvi (minor) vs. Mamraj and Others (2004) 13 SCC 2979, the Hon'ble Apex Court has reiterated the same view in para 10. Therefore, it cannot be said that witness PW-2 was not present on the spot and he is unreliable.
27. It has been argued by the appellant that the I.O. failed to recover the gun allegedly used in occurrence. Therefore, the empty cartridge could not be verified by any Forensic Science Laboratory, therefore, the prosecution case is not believable. At this point the learned A.G.A. has replied that after the incident accused ran away from the spot as he had joined his duty in army. After so many request letters to commanding officer of army the accused-appellant surrendered before the Court. After getting the information of his surrender the I.O. PW-7 has recorded his statement on 24.02.1999. He stated that he has deposited his gun in his unit. Therefore, the gun could not be recovered. The I.O. taken opinion of others who gave him advice that after such long duration the Forensic Science Laboratory examination will not give any result. Therefore, the firearm and empty cartridge could not be sent for scientific examination. It was the job of Investigating Officer and the complainant had no role. Therefore, if any latches is found that will be negligence of the I.O. It can also be said that the opinion of Forensic Science Laboratory is mere an opinion. On the other hand, the evidence of eyewitnesses are reliable, therefore, the accused-appellant cannot get any undue benefit of IO's latches. Hon'ble Supreme Court in para 14 in Amar Singh vs. Balwinder Singh and Others, 2003 46 ACC 619 has held that :-
"....................... It would have been certainly better if the investigation agency had sent the firearms and the empties to Forensic Science Laboratory for comparison. However, the report of the ballistic expert would in any case be in the nature of an expert opinion and the same is not conclusive. The failure of the investigating officer in sending the firearms and the empties for comparison cannot completely throughout the prosecution case when the same is fully established from the testimony of the eyewitnesses whose presence on the spot cannot be doubted. As they all received gun shot injuries in the incident................"
In the case Leela Ram vs. State of Haryana and Others (supra) as per the fact that where the eyewitnesses asserted that accused had fired two shots at the deceased but the doctor conducting the postmortem examination and finding two entry injuries on the dead body, agreed at the cross examination that both the injuries could have been caused by a single shot. Hon'ble Apex Court held that there was not a material contradiction in the evidence of eyewitness. Instead of hair splitting on the said point totality of the situation ought to have been reviewed by High Court. Evidence should be considered from the point of view of trustworthiness of witness.
Hon'ble Apex Court in other case Yogesh Singh vs. Mahabir Singh and Others, AIR 2016 Supreme Court 5160 held in its para 36 that :-
If the evidence of eyewitness has no material contradiction then in that case latches of investigation will not give any undue advantage to accused persons.
Therefore, if the firearm, the double barrel gun, which was used by accused and the empty cartridges which were recovered from the spot could not be sent to FSL by Investigating Officer then in that case the latches of I.O. will not be a ground for their acquittal.
28. It has been further argued by the appellant that prosecution has failed to prove the motive of accused to commit murder. In reply, it has been argued by learned A.G.A. that there is a direct evidence of eyewitnesses on record and if the motive has not been proved by the prosecution then in that case in the light of evidence of eyewitnesses motive will lose its importance. In support of his argument the prosecution has cited the case law Yogesh Singh and Mahabir Singh and Others, AIR 2016 Supreme Court 5160 wherein para 46 the Hon'ble Apex Court has held that if there is direct and trustworthy evidence of witnesses as to commission of an offence then in that case the motive loses its significance. Also in case law State of U.P. Vs. Shan-e- Haider, 2015 (1) JCRC 775, the Bench of this Court has held in para 41 that "in a murder case motive is not required to be proved when there is a direct evidence of eyewitnesses."
In Babboo Lal vs. State of U.P. 2001 SCC (Cr) 1484, it has been held in para 8 by Hon'ble Apex Court that:- "learned counsel rightly contended that on such a petty quarrel no sensible person would have used such a lethal weapon and killed the victim. How the mind of an assailant reacts is not possible to be fathomed from a detatched reflection. As pointed out by this Court in Nathuni Yadav vs. State of Bihar [SCC Page 244 para 17] "Many murders have been committed without any known or prominent motive.................... Mere fact that prosecution failed to translate that mental deposition of the accused into evidence does not mean that no such mental condition existed in the mind of assailant."
The witness PW-1 to PW-3 are eyewitnesses who have narrated the occurrence in Court and found believable then in that case if the motive of murder is not proved, it does not effect the acquisition of appellant-accused.
29. It has been argued by the learned counsel for the appellant that at the time of occurrence appellant-accused Ram Manohar was not present but he had joined his unit two days prior of the incident of Maharajdeen's death but no documentary evidence have been submitted by the defence side to prove his alibi, although there could be documentary evidence regarding the presence of accused-appellant in his unit on the date of occurrence but the appellant failed to prove the same. In case law State of Uttar Pradesh vs. Sughar Singh and Others 1978 SCC (Cri) page 83, it has been held that:-
"plea of alibi must be proved and substantiated by one taking it."
30. It has also been argued that on behalf of the accused persons the five witnesses were examined as DW-1 to DW-5 but the learned Sessions Court has failed to consider the argument of accused-appellant. The witness DW-1 has stated in his examination in chief that he has received the information in his village at 11:00 AM that the Maharajdeen has received the injury. He is lying in the southern side of village in injured condition. Further, he has stated that when he reached on spot the injured was breathing and further he was carried by tractor to police station Gadaganj. The occurrence has been proved as taken place at 12:30 PM on 08.8.1998, therefore, the timing shown by the witness which is not supported and corroborated by any evidence is not believable. He has also stated that the injured Maharajdeen was breathing at that time and he was in injured condition even then this witness or other villagers did not try to carry the injured person to the hospital. This act is against the normal course. In his cross-examination he has admitted that there was a litigation in between witness DW-1 and witness PW-1 Ganga Charan Pasi. Since the enmity of witness is proved with prosecution, hence, the witness DW-1 seems interested witness and is not believable. The same evidence has been given by the DW-2 Gyan Prakash that he is the ''pradhan' of Kalyanpur Beti Gram Sabha. Although, he has shown his residence in another village, i.e., Dalmau. He has stated that when he reached on spot where Maharajdeen was lying in injured condition, he had been carried by the tractor trolly to the police station. In his cross-examination he has stated that house of Maharaj Deen is 7 Kms away from his house. Further, he has stated that he does not know as who was driving the tractor and who accompanied with injured for police station. This witness also seems totally unreliable as he had gone to the village of deceased. After getting the information in his village, the distance is 7 kms so just after occurrence his alleged presence on the spot is unbelievable. Witness DW-3 is a resident of another village Tarapur Basi. He has stated that at about 10 to 11 AM near the bank of river there were 150- 200 persons were accumulated. Maharajdeen was lying there in injured condition and at that time he was living. Further, he has stated that the family members of injured carried injured to hospital by tractor. Further, he has stated in his cross-examination that he cannot say that whether any quarrel was taken place in between Ram Manohar or Maharajdeen or not? The evidence of this witness also loses credibility as he has shown the time 10:00 AM to 11:00 AM when he saw Maharajdeen in injured condition. On the other hand, it has been proved that occurrence took place at 12:30 PM. The other parts of the statement of witness are also not supported by any evidence. Accordingly, witness DW-4 has stated in his examination in chief that at 11:00 AM he received the information that Maharajdeen has been injured. When he reached on the spot he found Maharajdeen was lying in injured condition and his chest was bleeding. Accordingly, the PW-5 has deposed that he heard the information at 11:00 AM that near temple a dead body is lying there and the persons accumulated over there are discussing with each other. In presence of this witness the tractor has carried the dead body of the deceased for police station. Further, he has stated that he has not seen Maharajdeen ever. The evidence of DW-5 is contrary to the evidence of other witnesses. Being not supported with any documentary evidence or corroborative evidence, the evidence of DW-1 to DW-5 could not be considered by the court below treating them as unbelievable. We do not find any illegality with the finding of sessions court.
31. Considering the evidence available on record and on above discussion there is no doubt left in our mind about the guilt of the appellant, however, the question which falls for reconsideration is whether a reappraisal of the particular facts and circumstances of the case the conviction of the appellant under section 302 of IPC should be upheld or the conviction deserves to be converted under section 304 part I or Part II of the IPC.
32. In the present case, it has been argued by the learned A.G.A. that accused persons went at the residence of the deceased with weapons. The appellant was carrying licensed gun. Other accused persons were carrying ''katta' (countrymade pistol) and lathi-danda. They had gone there to demand Rs.280/- as was due in lieu of medical treatment. On the other hand, the prosecution side was claiming some labour wages, money, which was due against accused Ram Prakash. It has been argued by the prosecution that for a little money accused-appellant fired on the chest of Maharajdeen. He was an army person and was knowing the consequence of his firing. Being an army man he was also knowing about vital part of the body, i.e, chest. Inspite of that he has fired twice on the chest of the deceased. So the intention and knowledge of the accused is proved. He had reached on the spot with weapons whereas the injured and his family members were empty handed. The money of both the sides was due from 1995, i.e., approximately three years prior to incident, hence, the accused persons were cool minded and they have attacked on Maharajdeen with proper planning and intention. Therefore, the accused-appellant is not liable to get any benefit of explanation 1 of Section 300. There was premeditation and the accused-appellant acted with in a cruel manner. Therefore, he is not liable to be convicted under section 304 IPC. Accused-appellant has committed the offence because victims were belonging to weaker section and were member of SC/ST. Therefore, they have rightly been punished under section 302 IPC and 3 (2) (5) SC/ST Act.
33. As per evidence on record and argument advanced by both the sides, it reveals that the amount claimed by the prosecution as well as accused persons are meager. The accused persons have accumulated at the house of deceased to demand and realise their arrear money which was about three years old. Since they were going to demand the money from the son of deceased that is why as the precautionary measures they were taking weapons in their hand. The annoyance and dispute of accused persons was with Amrit Lal, the son of the deceased. Surprisingly Amrit Lal has not received any injury during occurrence. No evidence on record is available which could show any prior enmity of deceased with accused persons. Therefore, there seems no premeditation of accused-appellant to commit the offence. It has been shown that on the point of set off the arrear dues of Amrit Lal the quarrel started which shows fight in the heat of passion upon the sudden quarrel. The accused-appellant was an army person so he has full knowledge about the vital part of the body. Inspite of that he has fired on right side of the chest. Therefore, it seems that the intention of accused-appellant was to cause such bodily injury to Maharajdeen which is not likely cause death. Postmortem report exhibit Ka-7 shows the direction of injury anterolaterally and slightly downward. So, there was a better chance of survival of deceased because the target was not on the left side chest of Maharajdeen, hence it can be inferred that the accused Ram Manohar might had not fired on deceased with knowledge that it must in all probability cause death or such bodily injury as is likely to cause death. In case law Manjeet Singh vs. State of Himanchal Pradesh [2014 2 SCC (Criminal) 673, it has been held by the Hon'ble Apex Court:
"The question now requires to be determined is as to what is the nature of offence that the accused has committed. The evidence produced against the accused does not show that the accused had any motive to cause death of the deceased or have intended to cause such bodily injuries which were sufficient in the ordinary course of nature to cause the death of the deceased. The evidence on record also does not establish that the injuries caused on the body of the deceased must in all probability cause his death or likely to cause his death. On the spur of the moment during the heat of exchange of words the accused caused injuries on the body of the deceased which caused his death. Therefore, the ingredients of the murder as defined in Section 300 IPC, have not been established against the accused. In our opinion, in Section 300 IPC, have not been established against the accused. In our opinion, the accused was guilty of culpable homicide not amounting to murder under Section 304 IPC, and considering the fact that the accused had no intention to either cause the death of the deceased or cause such bodily injury as is likely to cause death of the deceased, it would be sufficient to impose on the accused a sentence of seven years' rigorous imprisonment and to impose on him a fine of Rs.5,000/- and in default of payment of fine, a further imprisonment of six months."
34. It is also to be considered that time gap in between starting of quarrel and causing injury to deceased Maharajdeen was not much. All the activities have taken place on the spot. In case law Sukhbir Singh vs. State of Haryana (2002) SCC (Cri) page 616, it has been held by the Hon'ble Apex Court in para 17 that :-
"To avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of self-control but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocatiion. It has been held by the courts that a fight is not per se palliating circumstance and only unpremeditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception."
35. The presence of deceased on the spot was by chance. There was no dispute in between deceased and appellant accused and the deceased reached on spot only to support his son regarding the claim of his arrear of wages. So prior enmity with deceased has not been established. In case law Tholan vs. State of Tamil Nadu 1984 SCC (Cri) 164 [para 12].
"It is equally not in dispute that appellant gave only one blow with a knife. Appellant had no quarrel or dispute with deceased Sampat. It is not shown that deceased Sampat had anything to do with the chit organized by K.G. Rajan. No malice has been alleged to have been entertained by the accused towards deceased Sampat. The incident occurred on the spur of the moment. It appears that the house of the deceased Sampat was somewhere near the house in which the organisers or at least one of them was residing. Appellant had his dispute and grievance with the organisers of the chit. It is the prosecution case that accused abused organisers of the chit. Deceased Sampat is not shown to be the organize of the chit. Probably when the deceased Sampat told the accused not to misbehave in the presence of ladies and not to use vulgar and filthy language, the appellant retorted by questioning the authority of Sampat to ask him to leave the place. Presence of Sampat is wholly accidental. Altercation with Sampat was on the spur of the moment, even the meeting was accidental. There arose a situation in which appellant probably misguided by his own egocentric nature objected as to why Sampat should ask him to leave the place and in this background he gave one blow with a knife which landed on the right side chest of the deceased, which has proved fatal. Could the appellant be said to have committed murder ? In other words, whether Part I of Part III of Section 300 IPC would be attracted in the facts of this case. Even Mr. Rangam learned counsel for the State of Tamil Nadu could not very seriously contend that the appellant intended to commit murder of Sampat. His submission was that at any rate appellant, when he wielded a weapon like a knife and gave a blow on the chest, a vital part of the body, must have intended to cause that particular injury and this injury is objectively found by the medical evidence to be fatal and therefore Part III of Section 300 would be attracted. On this aspect, the decisions are legion and it is not necessary to recapitulate them here merely to cover Idle Singh v. State of Haryana; (1981) 3 SCC 616, Randhir Singh v. State of Punjab; (1981) 4 SCC 484, Kulwant Rai vs. State of Punjab (1981) 4 SCC 484 and Hari Ram v. State of Haryana (1983) 1 SC 245. To this list two more cases can be added : Jagtar Singh v. State of Punjab (1983) 2 SCC 342 and Ram Sunder vs. State of U.P. Criminal Appeal No.553/83, decided on October 24, 1983. Having regard to the ration of each of these decisions, we are satisfied that even in Exception I is not attracted, the requisite intention cannot be attributed to the weapon like a knife and therefore he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death. In such a situation, he would be guilty of committing an offence under Section 304 Part II of the Indian Penal Code. Having regard to the circumstances of the case, a sentence of 5 years would be requisite."
36. In Richhpal Singh Meena vs. Gheesa alias Gheesa and others, (2014) 8 SCC 918, Hon'ble Supreme Court has held that :-
To ascertain that whether the offence comes under the purview of Section 302 or 304 IPC, Court should inquire five step inquiry.
(i) Is there a homicide ?
(ii) If yes, it is a culpable homicide or non-culpable homicide ? If it is culpable homicide, is the offence one culpable homicide amounting to murder (Section 300 IPC), or is it a culpable homicide not amounting to murder (Section 304 IPC) ?
(iii) If it is a non-culpable homicide then a case under Section 304-A IPC is made out.
(iv) In most cases the person who has committed homicide (culpable or non-culpable) can be identified but it is quite possible in some cases that conclusive or specific evidence is lacking to actually pen down the person who has committed homicide. (culpable or not culpable). In such cases accused would have to be given the benefit of Section 72 IPC. Such cases arise if the investigation is defective or if the evidence is insufficient but where it is possible to ascertain who is responsible for the homicide the first four steps of the five step inquiry can easily be carried out.
37. It can be inferred that accused-appellant was an army man and he was knowing the vital part of the body which can cause death, even then he was not fired on left side of chest. The PMR indicates that direction of gun was anterolateral which was having maximum chance of crossing of bullet, i.e., causing grevious injury which may be sufficient in the ordinary course of nature to cause death.
38. The intention of accused-appellant has not been proved according to Section 300 Secondly or thirdly of IPC. Applying exception 4 of Section 300, it has been found that the offence was committed by the accused-appellant without premediation because admittedly the accused persons went at the house of deceased to recover his due money which was pending since last three years and they demanded his arrear money first. Thereafter, some altercation came into the light in between deceased and his son Amrit Lal and Ram Prakash. At that time accused Ram Manohar was just accompanying the co-accused. FIR shows that co-accused Ram Prakash Yadav demanded his arrear amount from Amrit Lal and Amrit Lal claimed his set off regarding due wages. In the meantime, Ram Manohar Yadav threatened to Amrit Lal. Now, the father of Amrit Lal interfered and said that "gaali mat deejiye. Apana hisab kar leejiye."
Whatever the mode of interference would have been there but it shows sudden quarrel/ provocation arose in the heat of passion and accused-appellant fired on the chest of Maharajdeen in the spur of moment. After firing, the accused-applicant did not load his gun again nor he fired again on other eyewitnesses who were present on the spot. The evidence does not show that accused-appellant has further acted in any cruel or unusual manner. Now, as according to explanation of exception 4 it is immaterial that which party offers the provocation. Hence, the act of accused-applicant is covered by exception 4 of Section 300.
39. It has been proved by above discussion that the accused-applicant has acted with intention of causing such bodily injury as is likely to cause death as there was a single fire and the same was on right side of chest with direction anterolateral hence, we are of the considered view that he has committed the offence of culpable homicide not amounting to murder which is punishable under Section 304 I of IPC.
40. So far as the offence under Sectiion 3 (2) (5) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act, 1969) is concerned, in case law Masumsha Hassansha Musalman vs. State of Maharashtra (supra), Hon'ble Supreme Court has held in para 8 that the sine-qua-non :-
" Section 3 (2) (v) of the Act provides that whoever not being a member of Scheduled Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. In the present case, there is no evidence at all to the effect that the appellant committed the offence alleged against him on the ground that the deceased is a member of a Scheduled Caste or a Scheduled Tribe. To attract the provisions of Section 3 (2) (v) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence under Section 3 (2) (v) of the Act arises. In that view of the mater we think, both the trial court and the High Court missed the essence of this aspect. In these circumstances, the conviction under the aforesaid provision by the trial court as well as by the High Court ought to be set aside."
41. In case law Dharmendra vs. State of U.P. (2011) (1) JIC 292 the Bench of this Court has held that:-
If the offence was committed because of victim belongs to Scheduled Caste then in that case the provisions of Section 3(2) (5) of SC/ST Act will attract. Applying the above notions it appears that accused persons went at the residence of deceased Maharaj Deen Pasi and demanded their arrear of medical expenses. On the other hand the son of deceased claimed his arrears wage amount and due to the same the altercation between them started. The statement of deceased as mentioned in FIR that "gaali mat deejiye ............." Shows that deceased was not under threat. This wording may also show the equal position. It can be inferred also by the statement in FIR that firstly accused-appellant Ram Manohar said that "paasi sale tumhara dimaag kharab hai. Zabaan ladate ho."
Only then the deceased Maharaj Deen interfered and said the above wordings. Upon hearing the words of deceased the accused-appellant fired upon him. None of the witnesses has stated that the accused persons have committed the offence due to the reason that his son Amrit Lal or Maharajdeen was belonging to Scheduled Caste or/ Scheduled Tribe. Therefore, in absence of specific evidence that the accused-appellant has hit the deceased only due to the reason that he was belonging to SC/ST. The offence of Section 3(2) (5) SC/ ST Act is not proved. The common intention to attack on Shyam Lal is not proved. The accused-appellant was not having any role to hit Shyam Lal by lathis.
42. In view of aforesaid discussion we are of the considered view that this appeal is liable to be allowed partly. The same is partly allowed. The impugned judgment and order 07.5.2007 passed by the Sessions Court is modified.
Accused-appellant Ram Manohar is held guilty for offence under Section 304-I of IPC with fine Rs.10,000/-. The offence under Section 504 IPC has also been proved. The accused-appellant Ram Manohar is also convicted by Sessions Court under Section 504 IPC which is not liable to be interfered. Accused-applicant is liable to be acquitted for offence under Section 3(2) (5) SC/ST Act and Section 3 (1) (10) SC/ST Act and under Section 323/34 of IPC. Consequently acquitted for the offence under section 3(2) (5) and Section 3 (1) (X) of SC/ST Act and Section 323/34 IPC. It has further been submitted by the learned counsel for the accused-appellant that accused-appellant is in jail from 07.5.2007. Since the maximum detention period as mentioned for the offence under Section 304-I has been completed, hence, the accused-applicant shall be released from the jail immediately, if not required in any other case. Default sentence, if the fine is not paid will also run as sentenced by Sessions Court.
43. Let a copy of this judgment alongwith the trial court record is sent to the Court and jail authorities concerned and the District Magistrate for compliance.
Date :- 04.02.2019 mks (Ritu Raj Awasthi, J.) (Narendra Kumar Johari, J.)