Allahabad High Court
Pappu @ Sohanvir vs State Of U.P. on 21 June, 2022
Bench: Sunita Agarwal, Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on:- 07.04.2022 Delivered on:- 21.06.2022 Court No. - 32 Case :- CRIMINAL APPEAL No. - 4260 of 2009 Appellant :- Pappu @ Sohanvir Respondent :- State of U.P. Counsel for Appellant :- Mahipal Singh,Akhilesh Singh,Akhilesh Srivastava,Lokesh Kumar Mishra,M.P. Yadav,S.K. Dubey,Shivajee Srivastava,Srikant Yadav Counsel for Respondent :- Govt. Advocate,R.K. Gupta,Ram Jatan Yadav Alongwith Case :- CRIMINAL APPEAL No. - 5022 of 2009 Appellant :- Pappu @ Sohanvir Respondent :- State of U.P. Counsel for Appellant :- Mahipal Singh Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Vikas Kunvar Srivastav,J.
(Delivered by Justice Sunita Agarwal)
1. Heard Sri Rajesh Kumar Mishra learned Amicus Curiae on behalf of the appellant in both the connected appeals and Sri Roopak Chaubey learned AGA for the State-respondent.
2. These two connected appeals are directed against the judgement and order dated 13.07.2009 passed by the Sessions Judge, Meerut in S.T. No.1686 of 2008 under Section 302 and 307 IPC arising out of Case Crime No.222 of 2008, P.S. Hastinapur, District Meerut and S.T. No.1687 of 2008 under Section 25 Arms Act arising out of Case Crime No.224 of 2008 P.S. Hastinapur, District Meerut, whereby the sole appellant Pappu @ Sohanvir has been held guilty of the offence under Section 302 IPC for causing grievous murder of his father Dehsraj and Section 307 IPC for causing grevious injuries to his mother Smt. Maya Devi with the intention to cause her murder. The appellant has also been convicted under Section 25 Arms Act for keeping a country made pistol of 315 bore and live cartridges without license. The sentence awarded to the appellant for the aforesaid offence is imprisonment for life and fine of Rs.10,000/- under Section 302; the default punishment is rigorous imprisonment for six months in addition to the above sentence. For the offence under Section 307 IPC, the appellant had been convicted to undergo ten years rigorous imprisonment and fine of Rs.5000/-; the default punishment is three months rigorous imprisonment in addition to the above sentence. Under Section 25 Arms Act, the appellant has been sentenced to undergo one year imprisonment with fine of Rs.1000/-; the default punishment for which is one month rigorous imprisonment in addition to the aforesaid default punishment of six months. All the punishment are to run concurrently.
3. It is pointed out by the learned counsel for the appellant that the appellant is in jail for about 14 years.
4. The prosecution story starts with the first information report lodged by Krishnapal Singh brother of the accused-appellant Pappu @ Sohanvir. As per the written report submitted by Krishnapal (examined as PW-1) proved as Exhibit Ka-1, the appellant was five brothers out of whom one Rajvir had died about 14 years prior to the incident. As per the narration in the FIR, the family of Rajvir was living separately for about 3 months prior to the incident and the appellant Pappu @ Sohanvir was also living separately. However, first informant Krishnapal, Jaivir, Ajab Singh, three brothers were living jointly with their parents. The incident had occurred on 22.08.2008 at about 09.00 AM. The first informant stated that his brother, the appellant-herein was arguing with his father Deshraj about the share in the joint residential property/family house. The dispute was about 6th share of the father and while arguing the appellant started breaking the 'Khor' of the cattle by hammer. His father, mother and wife of the informant namely Kavita Devi stopped the appellant from breaking the 'Khor' and at that time, another brother Ajab Singh had reached the spot. At that point of time, the appellant Pappu @ Sohanvir took out a Tamancha stuck in his body and fired at his father Deshraj and mother Maya Devi. Deshraj had died on the spot and injured Maya Devi was taken to the Hospital (Divya Jyoti Nursing Home) in serious condition by his brother Ajab Singh. It was stated by the informant that leaving the body of his father on the spot he came to the police station to lodge the report.
5. The informant PW-1, in examination-in-chief, stated that the written report was scribed by Jasveer Pradhan and it was read over to him then he signed the same. PW-1 had identified his signature on the written report which was marked as Exhibit Ka-1.
6. The factum of preparation of the check report and G.D. was proved by PW-4 and the check report and the G.D. were marked as Exhibit Ka-3 & 2; respectively. PW-4 was put to cross about the late sending of the special report of the incident to the Magistrate. A suggestion was also given to PW-4 that appellant-accused Pappu @ Sohanvir also went to lodge the written report but his case was not registered. This suggestion was emphatically denied by PW-4. The suggestion of delay in lodging the first information report was also denied by PW-4. It is proved from the record that the first information report of the incident occurred at about 09.00 AM was lodged by PW-1 by 09.35 AM. The distance of the police station as indicated in the check FIR was 05 KM. No suggestion had been given with regard to the first information report being ante-time to this witness.
7. However, in the statement of PW-1, it has come that Jasveer Singh (Pradhan) had given information to the police and the police reached on the spot of the incident on telephonic information. PW-1, however, stated that his brother took his injured mother to the Nursing Home before police could reach on the spot and that his mother was taken to the hospital within 05 to 07 minutes of the occurrence. PW-1 further stated that he reached back at the village after lodging of the report at about 09.45 AM and when he reached, the police was preparing the inquest. The inquest bears signature of PW-1 and he proved that the body was sealed in his presence and was sent for the postmortem at about 12.00 Noon. PW-1 further stated, in his examination-in-chief, that he reached inside his house after hearing the sounds of fires and, in cross, he stated that he heard two fires. PW-1 admitted that when he reached at the spot, his brother the appellant-herein was not present and had already fled away from the spot. The fact that appellant Pappu @ Sohanvir had fired at his father and mother was intimated to him by his brother Ajab Singh and his wife Kavita. It is, thus, evident that PW-1 is not an eye witness of the incident and his testimony only proves the lodging of the first information report of the incident.
8. PW-2 Ajab Singh is the eye witness of the incident and he stated that on the fateful day i.e. 22.08.2008, oral arguments were going on between his father and brother Pappu about the share in the joint property. Pappu had fired at his father and mother and the said incident had occurred in his presence. PW-2 further stated that he took his mother to Divya Jyoti Nursing Home and Kavita (wife of PW-1) was also present on the spot.
9. In cross, PW-2 stated that he did not telephone his brother Krishnapal PW-1 and appellant Pappu @ Sohanvir was at home on the date of the incident as he had left his job. PW-2 further explained that the appellant Pappu @ Sohanvir had fired from a distance of 2-3-4 paces at his father and mother and one-one fire was made at each of them. He further explained that his mother was standing behind his father and he did not make any effort to nab the appellant. It has come in evidence that the statement of PW-2 was recorded by the police after 24-25 days of the incident. PW-2 further explained that partition had occurred between the brothers before the incident and the agricultural property was partitioned physically whereas there was no partition wall for five portions of the houses. The suggestion that he had not witnessed the incident was denied by PW-2 and he stated that he did not go to the (agriculture) field on that day.
10. PW-3 is the injured mother Maya Devi who stated on oath that at about 08.00 AM when she was sitting at the stairs of her house and her husband was also present there, the appellant Pappu @ Sohanvir started breaking the 'Khor'. The deceased Deshraj stopped him from doing so and then the appellant opened fire at her husband Deshraj and a fire also hit her as she was trying to save her husband. It was stated by PW-3 that her husband had died on the spot and she was also examined by the doctor.
11. In the examination-in-chief, PW-3 stated that the appellant, her son, was not giving them share in the house. PW-3 also stated that Kavita, wife of her another son was also present. She further stated that the appellant Pappu was working in a factory in Meerut and his landed property was being ploughed by his brothers and in exchange of the same, the appellant was being given money, grains and jaggery. A suggestion was also given to PW-3 that she was making false statement on account of a criminal case lodged against her, her deceased husband and PW-2 Ajab Singh in the incident of murder of the wife of Ajab Singh wherein the appellant Pappu @ Sohanvir was a witness, which was refused by PW-3. She further explained that Krishnapal (PW-1) was not present on the spot and he came later and that the incident did not occur in his presence.
12. She stated that the appellant fired at both of them from the distance of 2-3 paces. She was admitted in the hospital for about 12 days and her statement was recorded by the police after she gained consciousness. PW-3 stated that the appellant Pappu lodged a report of the incident on his own and the suggestion of the defence that some unknown assailants had opened fire at them was denied by PW-3.
13. Giving orientation of the place of the incident, PW-3 stated that houses of five children were constructed separately and there was some distance in the stairs and 'Khor' and that the 'Khor' was at the base of the stairs. When first fire was made she was near the 'Khor'. She further stated that entire 'Gher' of the house was one.
14. Considering this part of the statement of PW-3 and on perusal of the site plan simultaneously, it is evident that though five residential portions of five brothers were separated but the 'Gher' of the house was common and there was one main gate of the entire residential premises which opened at the Pakka road running North-South. In the index of the site plan, it was noted by the Investigating Officer that the house of both the appellant Pappu and deceased Deshraj was shown by letters 'क' 'ख' 'ग' 'घ' in the site plan. This fact further makes it clear that appellant Pappu @ Sohanvir and deceased Deshraj as also his brother were sharing a common dwelling unit wherein their residential portions were identified in five parts, but it had a common 'Gher' and the entrance.
15. From the statement of the witness of fact, it is evident that a dispute was being raised by the appellant with regard to the demand of 6th part in the dwelling unit by his parents namely deceased Deshraj and injured Maya Devi.
16. The 'Khor' which was being broken by the appellant Pappu before opening the fires had shown in the site plan as place (A). Place (X) has been shown in the site plan as the place where the appellant Pappu had fired at his parents and his father Deshraj had died. The distance between place (A) and (X) is mentioned in the site plan as 14 paces.
17. From the evidence of the prosecution witnesses and the site plan of the place of the incident, it is evident that the incident had occurred inside the Gher/common area of the dwelling unit of deceased Deshraj and appellant Pappu @ Sohanvir. It has also come in the evidence of PW-2, the eye witness of the incident that the appellant was arguing with his father about the 6th share demanded by the deceased for himself and his wife injured Maya Devi. This fact is also proved from the statement of PW-3. It seems that to show his vehemence, the appellant Pappu @ Sohanvir in furtherance of the oral arguments started breaking the 'Khor', the place where the cattles were being kept. When deceased Deshraj stopped him from doing so, he opened fires and two fires were made by the appellant one of which hit his father and another his mother who came in between to save her husband. This fact is evident from the statement of PW-3, when in the examination-in-chief she stated that the appellant opened fire and a fire hit her when she tried to save her husband. The father (Deshraj) had died on the spot and the mother (PW-3) was admitted in the hospital where she was operated and a bullet was taken out from her body.
18. There is no dispute about the injury report and the supplementary report of the injured PW-3 and the postmortem report of deceased Deshraj. The above reports were proved by the doctors who had entered in the witness box as PW-5 and PW- 7. The report of the injured show that one entry wound of firearm and one bullet had been recovered from her body during surgery. Similarly one firearm wound was found on the person of deceased Deshraj and a bullet was recovered by the postmortem doctor which was sent for the forensic examination.
19. The incriminating articles recovered from the spot of the incident were two empty cartridges of 315 bore and one small hammer of iron having wooden butt. The recovery memo was proved by the police witness as Exhibit Ka-2. The memo of arrest of the appellant and recovery of 315 bore Tamancha (country made pistol) from his possession dated 22.08.2008, had been proved by the police witness and marked as Exhibit Ka-16. The recovered country made pistol, two empty cartridges and one metallic bullet recovered from the body of the deceased Deshraj were sent for the forensic examination. The forensic report shows that though one empty cartridge marked as EC-2 (recovered from the spot of the incident) could be matched with the country made pistol (recovered from the possession of the appellant) but the bullet marked as EB-1 (recovered from the body of the deceased Deshraj) could not be matched with the country made pistol of 315 bore, as the said bullet could be used only in 32 bore pistol and was undersized for a 315 bore weapon.
20. The inquest and other related papers prepared by the police witness had also been proved by them by entering in the witness box. The recovered hammer was shown to the police witness namely PW-6, the Investigating Officer, who had proved it being the same article recovered from the place of the incident and was marked as material Exhibit Ka-1.
21. Nothing much could be argued on the evidence of prosecution witnesses namely the police, the doctor who had proved the reports prepared by them. Not much could be argued by the learned counsel for the appellant about the testimony of the witnesses of fact. Only this much was sought to be argued by the learned counsel for the appellant that the timing of the incident as intimated in the written report was not proved by the statement of the doctor. The postmortem doctor namely PW-5 categorically stated that the death could not have taken place at about 09.00 AM and the murder could be caused at about 04.00 AM on the same date. It was also argued that from the statement of the doctor (PW-5) and the manner in which the incident was narrated by the prosecution witness, it was evident that the firing was made by some unknown persons.
22. Elaborating this submission, it was argued by the learned counsel for the appellant that the fact that the stomach of the deceased was empty also makes it probable that the incident had occurred in the early morning and not at the time stated in the written report, i.e. 09.00 AM.
23. It was further argued that it was a case of sudden provocation and the appellant had caused murder of his father in a fit of rage. It was not an intentional act of the appellant. Only two shots were made by the appellant and one of them hit his mother for the reason that she came on the way in an effort to save her husband. The appellant did not intend to cause grievous injuries to his mother putting her life in danger.
24. Two empty cartridges allegedly recovered from the spot could not be matched in the FSL report. One bullet recovered from the body of the deceased was a cartridge of 32 bore weapon which could not have been used in 315 bore country made pistol allegedly recovered from the possession of the appellant.
25. The result is that the recovery of 315 bore country made pistol and two empty cartridges (allegedly recovered from the spot of the incident) were proved to be planted by the police witnesses. It was also argued that one bullet recovered from the body of the injured Maya Devi was not sent for the forensic examination. The prosecution had planted the empty cartridges and the weapon in the possession of the appellant so as to create a scene of assault with the intention to cause "murder" whereas it was a case of "culpable homicide not amounting to murder" as the firing was made by the appellant in a fit of rage during the course of an oral altercation. The contention thus, is that the offence committed by the appellant could not reach beyond the provision of Section 304 Part-II. The conviction of the appellant under Section 302 IPC suffers from a grave error of law.
26. As regards the conviction of the appellant under Section 25 Arms Act, it was argued that it is proved that the recovery made by the police witness of 315 bore country made pistol was planted as in order to match the said recovery two empty cartridges of 315 bore were also planted showing recovery from the spot whereas the bullet recovered from the body of the deceased did not match the weapon recovered allegedly from the appellant. It, thus, becomes evident that the police had planted the recovery in order to secure conviction of the appellant under Section 302 IPC in an overzealous attempt to solve the crime in a particular direction.
27. In any case, looking to the FSL report and the recovery of the country made pistol being doubtful, the conviction of the appellant under Section 25 Arms Act is liable to be set aside.
28. Learned AGA, in rebuttal, argued that there is no infirmity in the judgement of the trial court, in as much as, two fires were opened by the appellant and both of them hit the deceased and the injured in a fatal manner. The injuries on the person of injured Maya Devi (PW-3) were described as 'grievous and life threatening' by the doctor. It was proved that the injured was brought to the hospital by Ajab Singh (PW-2) who was an eye witness. The injured mother was also examined as PW-3 and her statement about the assault having been made by the appellant (her own son) cannot be doubted. It is, thus, argued that the prosecution had proved its case beyond all reasonable doubt and no interference can be made in the judgement of the trial court.
29. Having heard learned counsel for the parties and perused the record.
30. From the arguments of the counsel for the appellant and the material evidence on record, we find that that there is no dispute as regards the place of the occurrence as also the manner in which the incident had occurred. The time of the incident, though is sought to be disputed by the learned counsel for the appellant but the statement of three witnesses of fact about the time when the incident had occurred is consistent. It has come in the evidence of the witnesses of fact (PW-1 to PW-3) that the deceased did not eat anything and the postmortem report also proved that the stomach was empty. It is also proved from the record that though five portions of the residential house were separated for five brothers namely five sons of deceased Deshraj and injured Maya Devi but there was no separate portion of the parents (deceased and the injured) in the dwelling unit. The dispute between the appellant and his father was about 6th share of the parents in the dwelling unit. It has also come in the statement of PW-1 that though two brothers namely the appellant and the family of Rajvir were living separately but the remaining three sons namely Krishnapal (PW-1), Jaivir and Ajab Singh (PW-2) were residing with their parents namely deceased Deshraj and injured Maya Devi. It is also evident from the statement of the prosecution witnesses that earlier appellant Pappu @ Sohanvir was living in Meerut and working in a factory but before the incident he left his job and came back to the village. On the date of the incident, he was in the village and in the house which had a common 'Gher'. The 'Khor' (the place where the incident had occurred) was lying in the Gher of the dwelling unit which was common for all the five owners of the residential portion. The site plan which is undisputed, shows that it was a common dwelling unit having five portions (marked as 'क' 'ख' 'ग' 'घ' in the site plan) and a common 'Gher' wherein the incident had occurred. This fact is also proved from the statement of the injured PW-3 Maya Devi who stated that 'Gher' was one.
31. It has come in the evidence of the prosecution witnesses that in the morning at about 08.00 AM, the appellant was arguing with his father, (deceased Deshraj) on the demand of the deceased about his 6th share in the dwelling unit. While oral arguments were going on (as per the testimony of PW-2 the eye witness) the accused-appellant started breaking the 'Khor', the place inside the 'Gher' where cattle were being kept. While the appellant was expressing his anger by breaking the 'Khor' in resistance to the demand of 6th share of his father, he was stopped by his father. It is the case of the prosecution itself that the appellant had opened two fires when he was stopped by his deceased father from breaking the 'Khor' and both the fires were simultaneous. Three witness of fact are consistent about this issue and PW-1 made it clear in his deposition that he heard the sound of two fires. Both the fires hit the father and mother of the appellant/assailants. Two bullets (one each) were recovered from the body of the deceased and the injured. Thus, there was only one firearm wound on the person of the deceased. It has come in the statement of PW-3, the injured mother that she was standing behind her deceased husband at the time of the incident and when the appellant opened fire at her husband she came in between and she was also hit. The place of fires made at both the injured and the deceased had been marked as (X) in the site plan.
32. Considering the above evidence, in entirety, it is proved that the appellant had opened two fires from the firearm carried by him in a fit of anger during the course of altercation.
33. It is clear that there was a heated exchange of words between the deceased and the appellant and while the appellant was showing his anger by breaking the 'Khor' with a hammer, his deceased father stopped him. The oral altercation between the appellant and the deceased took the ugly turn at that moment and the appellant in the fit of rage had opened two fires, one of them hit his father (the deceased) and another hit his mother who came in between.
34. In the above circumstances, the question is as to whether the act of the appellant in causing death of his father would amount to 'murder' within the meaning of Section 300 IPC or it is a case of 'culpable homicide which will not amount to murder' attracting punishment under Section 304 IPC. Further question is as to in which part of Section 304 IPC, the offence in question would be punishable, in case, the Court reaches at a conclusion that it was a case of 'culpable homicide not amounting to murder' and not 'murder'.
35. In order to ascertain the same, we are required to go through the legal principles governing the distinction between the provisions under Sections 300 and 302 of the Code on the one hand and Section 304 Part I and Part II of the Code on the other. Section 299 of the Code which deals with the definition of culpable homicide is also to be taken note of.
36. Sections 299 and 300 of the Indian Penal Code deal with the definitions of 'culpable homicide' and 'murder'; respectively. In terms of Section 299, 'culpable homicide' is described as an act of causing death:- (i) with the intention of causing death, or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such an act is likely to cause death. As is clear from the reading of this provision, the first part of it emphasises on the expression ''intention' while the latter upon ''knowledge'. As has been noted in a catena of decisions, both these words denote positive mental attitudes of different degrees. The mental element in ''culpable homicide', i.e. the mental attitude towards the consequences of conduct is one of intention and knowledge. Once an offence is caused in any of the above three stated manners, it would be ''culpable homicide'.
37. Section 300, however, deals with ''murder'. Though there is no clear definition of ''murder' in Section 300 of the Code but as has been held by the Apex Court and reiterated in Rampal Singh vs. State of Uttar Pradesh2, ''culpable homicide' is the genus and ''murder' is its species and all ''murders' are ''culpable homicides' but all ''culpable homicides' are not ''murders'.
38. Another classification that emerges from the Code is "culpable homicide not amounting to murder", punishable under Section 304 of the Code. There are decisions which also deal with the fine line of distinction between the cases falling under Section 304, Part I and Part II.
39. Dealing with a matter, wherein the question for consideration was whether the offence established by the prosecution against the appellant therein was "murder" or "culpable homicide not amounting to murder", the Apex Court in Vineet Kumar Chauhan vs. State of Uttar Pradesh1 considered its earlier decision in the State of Andhra Pradesh Vs. Rayavarapu Punnayya and Another2, wherein the then Justice R.S. Sarkaria brought out the points of distinction between the two offences under Sections 299 and 300 IPC, reiterating the law laid down in Virsa Singh Vs. State of Punjab3 and Rajwant Singh Vs. State of Kerala4. It was held therein that whenever a Court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder"; on the facts of a case, it will be convenient for it to approach the problem in three stages:- (i) the question to be considered, at the first stage, would be whether the accused has done an act by doing which he has caused the death of another; (ii) proof of such connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 IPC is reached; (iii) the third stage is to determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable.
40. Further, if this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304 IPC. It was, however, clarified therein that these were only the broad guidelines to facilitate the task of the Court and not cast iron imperative.
41. In Aradadi Ramudu alias Aggiramudu vs. State through Inspector of Police, Yanam5, the question was for modification of sentence from Section 302 to Section 304 Part II. While answering the same, the Apex Court had considered the above noted decisions in Virsa Singh (supra) as also other decisions in line namely State of U.P. v. Indrajeet6; Satish Narayan Sawant vs. State of Goa7 and Arun Raj vs. Union of India8 to note that for modification of sentence from Section 302 to Section 304 Part II, not only should there be an absence of the intention to cause death, but also an absence of intention to cause such bodily injury that in the ordinary course of things was likely to cause death. [Reference Paragraph 16]
42. Noticing the above noted decisions, in Rampal Singh Vs. State of Uttar Pradesh9 the Apex Court had considered the distinction between the terms "murder" and "culpable homicide not amounting to murder". The observation in State of Andhra Pradesh Vs. Rayavarapu Punnayya (supra) was noted in paragraph '13' of Rampal Singh (supra) as under:-
"13. In the case of State of A.P. v. Rayavarapu Punnayya, this Court while clarifying the distinction between these two terms and their consequences, held as under: -
"12. In the scheme of the Penal Code, ''culpable homicide' is genus and ''murder' its species. All ''murder' is ''culpable homicide' but not vice versa. Speaking generally, .......''culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called ''culpable homicide of the first degree'. This is the greatest form of culpable homicide, which is defined in Section 300 as ''murder'. The second may be termed as ''culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is ''culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304."
43. The guidelines laid down in its earlier decision in Phulia Tudu vs. State of Bihar10 had been noted therein to reiterate that the safest way of approach to the interpretation and application of these provisions (Sections 299 and 300) is to keep in focus the key words used in the various clauses of these sections. In paragraph '17', it was noted that :-
"17. Section 300 of the Code states what kind of acts, when done with the intention of causing death or bodily injury as the offender knows to be likely to cause death or causing bodily injury to any person, which is sufficient in the ordinary course of nature to cause death or the person causing injury knows that it is so imminently dangerous that it must in all probability cause death, would amount to "murder". It is also "murder" when such an act is committed, without any excuse for incurring the risk of causing death or such bodily injury. The Section also prescribes the exceptions to "culpable homicide amounting to murder". The Explanations spell out the elements which need to be satisfied for application of such exceptions, like an act done in the heat of passion and without pre- mediation. Where the offender whilst being deprived of the power of self- control by grave and sudden provocation causes the death of the person who has caused the provocation or causes the death of any other person by mistake or accident, provided such provocation was not at the behest of the offender himself, "culpable homicide would not amount to murder". This Exception itself has three limitations. All these are questions of facts and would have to be determined in the facts and circumstances of a given case."
44. It was observed in paragraph '21' in Rampal Singh (supra) that Sections 302 and 304 of the Code are primarily the punitive provisions. An analysis of these two Sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is, thus, an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, i.e. (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional and the maximum sentence only extends to imprisonment for 10 years. The first clause of Section 304 includes only those cases in which offence is really "murder", but mitigated by the presence of circumstances recognized in the Exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular.
45. In paragraph '22' Rampal Singh (supra), it was observed that where the act is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the Exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed. (emphasis added)
46. It was, thus, held therein that the distinction between two parts of Section 304 (Part I and Part II) is evident from the very language of this section. While Part I is founded on the intention of causing the act by which the death is caused, the other is attracted when the act is done without any intention but with the knowledge that the act is likely to cause death.
47. It was further observed therein that it is neither advisable nor possible to state any straight-jacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merit. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with the clear demarcation as to under what category of cases, the case at hand falls and accordingly, punish the accused.
48. Referring to an earlier decision in Mohinder Pal Jolly vs. State of Punjab11, it was noted in Rampal Singh (supra) that the distinction between two parts of Section 304 has been stated with some clarity therein which reads as under:-
"24. A Bench of this Court in the case of Mohinder Pal Jolly v. State of Punjab [1979 AIR SC 577], stating this distinction with some clarity, held as under :
"11. A question arises whether the appellant was guilty under Part I of Section 304 or Part II. If the accused commits an act while exceeding the right of private defence by which the death is caused either with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death then he would be guilty under Part I. On the other hand if before the application of any of the Exceptions of Section 300 it is found that he was guilty of murder within the meaning of clause "fourthly", then no question of such intention arises and only the knowledge is to be fastened on him that he did indulge in an act with the knowledge that it was likely to cause death but without any intention to cause it or without any intention to cause such bodily injuries as was likely to cause death. There does not seem to be any escape from the position, therefore, that the appellant could be convicted only under Part II of Section 304 and not Part I."
49. As a guideline as to how the classification of an offence into either Part of Section 304 would be made, it was held in paragraph '25' as under:-
"25. ......xxxxxxxxxxxx.......This would have to be decided with reference to the nature of the offence, intention of the offender, weapon used, the place and nature of the injuries, existence of pre-meditated mind, the persons participating in the commission of the crime and to some extent the motive for commission of the crime. The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code the accused is liable to be punished. This can also be decided from another point of view, i.e., by applying the ''principle of exclusion'. This principle could be applied while taking recourse to a two-stage process of determination. Firstly, the Court may record a preliminary finding if the accused had committed an offence punishable under the substantive provisions of Section 302 of the Code, that is, ''culpable homicide amounting to murder'. Then secondly, it may proceed to examine if the case fell in any of the exceptions detailed in Section 300 of the Code. This would doubly ensure that the conclusion arrived at by the court is correct on facts and sustainable in law........xxxxx............."
50. The following observations in paragraph '16' of the decision in Aradadi Ramudu alias Aggiramudu (supra) have been quoted in para '34' to state that while answering the question for modification of sentence from Section 302 of the Code to Part II of Section 304 of the Code, it has to be kept in mind that:-
"not only should there be an absence of the intention to cause death, but also an absence of intention to cause such bodily injury that in the ordinary course of things is likely to cause death."
51. Keeping in mind the above guidelines laid down by the Apex Court, in the facts of the present case, the first step in the analysis would be to examine as to whether the appellant had committed an offence punishable under the substantive provisions of Section 302 of the Code, i.e. "culpable homicide amounting to murder".
52. To return a finding on the issue, we have to determine as to whether the act by which the death had been caused would fall in any of the four Clauses detailed in Section 300 of the Code.
53. Analyzing the facts of the instant case, at the cost of repetition, we may notice that from the prosecution evidence, it is established that the deceased and the appellant, who were father and son, were engaged in a heated exchange of words about the division of 6th share of father (deceased) in the dwelling unit. They were present in the common area 'Gher' of the dwelling unit. The appellant started showing his anger/resistance by breaking the 'Khor', the place in the 'Gher' where cattle were being kept. When interrupted by the deceased, the appellant opened fires. The dispute between the parties was with regard to the 6th share of the father (the deceased) which was opposed by the appellant.
54. From the manner in which the incident had occurred as per the narration of the prosecution witness, it is clear that the appellant had not committed the crime with any premeditation. There was no intention on his part to kill his father and the entire incident happened within a very short span of time during the course of an altercation between the deceased and the appellant.
55. Learned AGA appearing for the State has contended that the very fact that the appellant/accused was carrying a firearm and that he had opened two fires completely establishes the intention to kill and thus, the offence would fall under Section 302 IPC.
56. It cannot be disputed that the appellant was carrying a firearm which he had tied in his body but beyond this factor, there is no evidence of animosity, premeditation or intention to kill. The appellant had opened two fires from the firearm carried by him but before that he was arguing with his father orally and expressing his feeling anger by breaking the 'Khor'. It is not a case where the appellant came out with the firearm and immediately fired to kill his father with a premeditated plan. The appellant opened fires during the course of oral altercation when he was stopped by his father from breaking the 'Khor', the common property of the dwelling unit.
57. Thus, in the facts of the instant case, this Court reaches at the answer to the first question that the appellant had not committed an offence within the meaning of Section 300 IPC, i.e. 'culpable homicide amounting to murder', which is punishable under Section 302 IPC. The incident had occurred in a sudden manner during oral fight without any premeditation in the state of anger, the offence committed by the appellant, thus, would fall within the meaning of "culpable homicide not amounting to murder" under Section 304 of the Code.
58. A further question then would be whether the appellant is guilty under part I or Pat II of Section 304.
59. As is evident from the record, the appellant had opened two fires simultaneously on his father, one of which hit the chest of the deceased. Another fire hit his mother who was standing behind the deceased and came in between the fires opened at the deceased. The injuries caused on the injured were also grievous and life threatening as she was hit by the gunshot in her chest. However, the father though succumbed to his injuries, mother could be saved by attaining medical aid within the shortest possible time. It, therefore, cannot be said that the death was caused by mistake or accident or without an overt act of the appellant. It is evident that the appellant had caused such bodily injury to the deceased which to his knowledge were likely to cause death, as he had opened fires from a short distance at the deceased. Moreso, the gun is a dangerous weapon and it is obvious that the appellant was aware that the use of such a weapon cause death. The deceased father and injured mother of the appellant were unarmed. The mother of the appellant, who got injured in the incident was also standing behind the deceased. It is, thus, proved that there was knowledge on the part of the appellant that if gun shots were opened the possibility of the deceased being killed could not be ruled out. But merely by the said fact it cannot be said that the appellant had caused gun shot injuries to his father with the aim and intention to kill him. The aforesaid fact itself is not conclusive to hold that there was an intention on the part of the appellant to kill the deceased, his father.
60. The circumstances, however, prove that the intention probably was to merely cause bodily injuries as the injuries were caused by the appellant without premeditation in a sudden fight in the heat of passion upon a sudden quarrel i.e. during oral altercation on the issue of partition of the dwelling unit.
61. Having regard to the root cause of the incident and the events that sequentially unfolded thereafter, we are of the comprehension that the appellant was overpowered by an uncontrollable fit of anger so much so that he was deprived of his power of self control and being drawn in a web of action reflexes, he fired at the deceased and his mother. The fact do not commend to conclude that the appellant had intention to eliminate his father and mother though he had the knowledge of the likely fatal consequence thereof.
62. On overall consideration of the facts situation, we are of the considered view that the conviction of the appellant ought to be moderated to one under Section 304 Part I of the Code, "Culpable homicide not amounting to murder", punishable in the first part (Part I) of Section 304 of the Code.
63. As we found that in this case, though there may be an absence of the intention to cause death but it is not a case where there is also an absence of intention to cause such bodily injury as is likely to cause death which in the ordinary course of things is likely to cause death, we do not agree with the arguments of the learned counsel for the appellant that the offence committed by the appellant would fall in the Second Part (Part-II) of Section 304 IPC.
64. We arrived at this conclusion for the further fact that the appellant had fired two gun shots, one of them hit his mother who also sustained grievous and life threatening injuries though she was saved by the grace of God.
65. Having held that the appellant is guilty of offence under Section 304 IPC Part-I, we further find that there is no infirmity in the conviction of the appellant for the offence under Section 307 IPC for causing grievous injuries to his mother.
66. We are, however, not convinced with the decision of the trial court in conviction of the appellant under Section 25 Arms Act, in as much as, in the instant case, from the ballistic report, it is evident that the bullet which hit the deceased was found to be the cartridge of 32 bore weapon and further the bullet recovered from the body of injured Maya Devi (PW-3) was not sent for the forensic examination; two empty cartridges allegedly recovered from the spot of the incident were of 315 bore whereas the bullet recovered from the body of the deceased was of 32 bore which according to the ballistic report could not be used in 315 bore weapon being undersized. It is not the case of the prosecution that the appellant was carrying two firearms, one of 315 bore and another 32 bore. The recovery of the empty cartridges of 315 bore from the spot of the incident made by the Investigating Officer, therefore, is found to be doubtful. The recovery of 315 country made pistol from the possession of the appellant Pappu @ Sohanvir on the date of his arrest also seems to be planted, in an effort to match the recovered 315 bore empty cartridges allegedly from the spot. The role of the Investigating Officer in the entire investigation proceedings, thus, seems to be partial in this regard.
67. Be that as it may, the recovery of the country made pistol 315 bore is found to be doubtful/planted in view of the ballistic report about not matching of the bullet with the recovered weapon, the conviction of the appellant under Section 25 of the Arms Act for keeping an unlicensed pistol and live cartridge is liable to be set aside.
68. We may also record that the prosecution has not been able to prove that the recovered weapon, allegedly from the possession of the appellant on the date of his arrest, was used in the crime, and thus, could not be termed as 'murder weapon' or 'assault weapon'.
69. Having held that the appellant is guilty of the offence under Section 304 Part I, we partially accept this appeal and alter the offence from that of Section 302 IPC to under Section 304 Part I of the Indian Penal Code.
70. It is brought on record that the appellant had suffered 14 years of long incarceration.
71. In view of the above, it would meet the ends of justice if the sentence for the offence is reduced to the period already undergone. The judgement under the appeal is modified in the above terms.
72. The appellant is in jail. He is hereby ordered to be set at liberty forthwith, if he is not required to be detained in connection with any other crime.
73. The appeals are allowed in part.
74. The office is directed to send back the lower court record along with a certified copy of this judgment for information and necessary compliance.
75. The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad within one month.
(Vikas Kunvar Srivastav,J.) (Sunita Agarwal, J.)
Order Date :- 21.6.2022
Himanshu