Punjab-Haryana High Court
Ram Narain vs State Of Haryana on 4 January, 1993
Equivalent citations: 1993CRILJ1343
JUDGMENT Harphul Singh Brar, J.
1. The prosecution story unfolded by Kirpa Singh (PW 1) while lodging the First Information Report is that he was resident of Village Hanspur and did cultivation. His turn of canal water was from about 1.30 p.m. to 2.30 p.m. on Saturday-Sunday. His fields were irrigated by Bandhai Wall Khal (watercourse) of Sukhchain canal. Prior to him, there was turn of canal water of Sucha Singh Mistry Sikh resident of the village. On February 10, 1991 when he along with Buta Singh son of his maternal-uncle Pritam Singh Jat Sikh aged 23/24 years resident of the village reached the naka (outlet) of his field to get water from the khal (water-course) from Sucha Singh, he found that the flow of water in the khal (water-course) had decreased. At about '1' p.m., while checking flow of water in the khal (water-course) when they reached near the field of Ram Narain son of Chautha Ram, Bishnoi by caste, resident of the village, they saw that Ram Chander and Chhotu were irrigating their field of wheat crop after diverting water from the khal. He asked Ram Narain as to why he had diverted the flow of water as it was his turn of water. Thereupon, Ram Narain replied that he had not got the khal repaired, so he would not allow him to take water on that day. In the meantime, his maternal-uncle, namely, Pritam Singh reached there while checking the flow of water in the khal (water-course). He further asked Ram Narain as to how he would get the water of his turn, as they always got the khal repaired. On this, Ram Narain asked his son, namely, Ram Chander to bring the gun and that he would give water to them that day. Thereupon, Ram Chander brought a. 12 bore double-barrel gun which was lying concealed nearby and handed over the same to his father, Ram Chander and asked him to finish the matter that day. Chhotu told that they might not be allowed to escape that day. Thereupon, as soon as Ram Narain took the gun, he fired a shot on Buta Singh son of his maternal-uncle which hit on the chest of Buta Singh. On receiving the fire shot, Buta Singh fell down on the ground. His maternal-uncle, namely, Pritam Singh and he raised alarm 'mar dia, mar dia' (killed, killed), upon which Ram Narain and his sons, namely, Ram Chander and Chhotu ran away with the gun in a jeep which was already parked on the road towards the village. They took care of Buta Singh, but he was found dead. He after having brought Partap Singh Sarpanch from the village had gone to lodge the report while leaving Pritam Singh, his maternal-uncle at the spot to guard the dead body of Buta Singh. The cause of grudge was that the turn of canal water of Ram Narain came after their turn to irrigate the fields. Today, Ram Narain and his sons had diverted the flow of canal water towards their fields (situated at the back) without their turn and they had stopped them from doing that. His statement was recorded by Kishan Dutt, Sub Inspector, Police Station Fatehabad. The First Information Report was recorded at 4.15 p.m. on the same day and the Special Report also reached the Ilaqa Magistrate immediately thereafter at 4.30 p.m.
2. In order to support its case, the prosecution had examined as many as seven witnesses. Kirpa Singh (PW 1) and Pritam Singh (PW 2) are the eye-witnesses of the occurrence. Kirpa Singh had stated at the trial, "He has his turn of water at 1.22 p.m. on Sunday. It continues up to 3.30 p.m. He gets water from Sukh Chain minor." Sucha Singh had his turn of water immediately before him. About 13/14 months ago, at about 1 p.m. he and Buta Singh had gone to their field near the field of Ram Narain 22 killas downstream (the witness again said up-stream) and saw that Ram Narain accused had diverted the flow of water to his field. Both the eyewitnesses approached the accused and told him that since it was their turn, he (the accused) should not have diverted the flow of water to his field. The accused, however, told them that since they had not come for repairing the khal (water-course), they would not be allowed to irrigate the fields. Pritam Singh also insisted that they should be allowed to irrigate their fields, but Ram Narain got furiated and asked his son Ram Chander to bring his gun so that he should stop them effectively from irrigating the lands, whereupon Ram Chander brought his double-barrel gun and asked his father to finish the complainant-party and his other son Chhotu Ram who was also present there, told him that the complainant should not be allowed to scot free. Ram Narain fired a shot which struck Buta Singh in his chest. Kirpa Singh (PW 1) further deposed that he and Pritam Singh (PW 2) raised an alarm, 'killed, killed' and then the accused persons went away in their jeep parked nearby. He further stated that the accused had re-loaded the gun before leaving the spot. He added that they had looked after Buta Singh and found him dead. Pritam Singh asked him to report the matter at the Police Station. He came to the village and took Partap Singh Sarpanch with him and reported the matter to the Police.
3-4. Pritam Singh (PW 2) fully corroborated the statement made by Kirpa Singh (PW 1) at the trial. He added therein that a Photographer was called who took the photographs of the scene of occurrence, the Police had taken into possession blood-stained earth, a blood-stained turben Exhibit P1 which were made into sealed parcels and they had also taken into possession a wad Exhibit P2.
5. Partap Singh (PW 4) Sarpanch who was the other material witness stated at the trial that on February 10,1991, he was sleeping in his house at about 1.30 p.m., when Kirpa Singh (PW 1) had gone to him and narrated the whole story to him. The witness then accompanied the complainant and they lodged a report. He also stated that the Police had taken into possession blood-stained earth, turban and wad which were made into separate sealed parcels. He then deposed that the Police had also taken into possession one empty and one missed cartridge from near the dead body which were made into separate sealed parcels and the Police had arrested the accused from the side of Khunan Minor from a jeep and took into possession of gun Exhibit P8, four cartridges, one licence vide Memo Exhibit PF.
6. Dr. Mohar Singh (PW 3) conducted autopsy on the dead body of Buta Singh and found the following injuries on his person :
(1) There was irregular hole in the shirt with a smaller hole around its upper part. Corresponding irregular hole was also present in both the banians with a smaller hole around their upper parts, corresponding to the above.
A lacerated wound of the shape diagram present on the upper part of the front of the chest wall, left to the mid-line, 16 cm. from the left clevicle, 7 cm. from the left nipple 13 cm. from the right nipple, 12 cm. from the lower end of the sternum with inverted margins. There was no tattooing and no blackening Dark clotted blood was present in and around the wound.
(2) There were 9 small holes measuring 1/2 x 1/2 cm present on the upper part of Injury No. 1 with inverted margins. Clotted blood was present. There was no other wound on the body. On further dissection of Injury No. 1, the upper part of sternum and 2nd and 3rd left ribs were fractured into pieces. Clotted blood was present. On opening the chest and exploration of the heart, the upper part of the heart and big blood vessels were badly injured and lacerated. The aorta both auticles of heart and vena-cava were badly injured and lacerated. Pellets 12 in number were recovered from the heart cavity. Whole heart was completely empty.
On exploration of the left lung, the upper and middle lobe of the left lung were badly lacerated and injured. A round card-board cork along with 18 pellets were recovered from left lung. Left side, chest cavity was full of clotted and fluid blood. Right lung was healthy and pale. Stomach was having a small amount of semi-digested food material. Large and Small gut were healthy and contained small amount of semi-digested f6od and large got contained small faecal matter. Liver spleen, kidneys Were pale.
In the opinion of the Doctor, cause of death of Buta Singh deceased was due to shock and haemorrhage as a result of fire-arm injuries described above, which were ante-mortem and sufficient to cause death in the ordinary course of nature. Time between injury and death was instantaneous and, between death and, post-mortem was within twenty-four hours.
7. Jai Narain Patwari (PW 5) proved the scaled plan Exhibit PG prepared by him at the direction of Sub Inspector Kishan Dutt and on the pointing out of Pritam Singh and Kirpa Singh, prosecution witnesses.
8. Lal Chand (PW 6) Assessment Clerk produced the warabandi of Village Hanspur, at Out let No. RD-51639 Left on Sukhchain Distributory. Exhibit PH is the correct copy of the warabandi.
9. Sub Inspector Kishan Dutt (PW 7) is the Investigating Officer of this case. He deposed at the trial that on February 10, 1991, Kirpa Singh came to him in the Police Station and made his statement Exhibit PA. He was accompanied by Partap Singh. His statement was read out to Kirpa Singh who put his thub-impressions on the same in token of its correctness. He then accompanied the witnesses to the place of occurrence and reached there at 4.45 p.m. He called the respectables and the Photographer and got the dead body photographed. The Photographs are Exhibits P13/1 to P13/4. After inspection of the spot, he prepared Rough Site Plan Exhibit PJ with correct marginal notes on the pointing out of Pritam Singh and Kirpa Singh. He took into possession blood-stained earth, turban Exhibit P1, wad Exhibit P2, one empty and one missed cartridge Exhibits P6 and P7, vide Memos Exhibits PB and PE, respectively. He then prepared the Inquest Report on the dead body Exhibit PD/3. He moved application Exhibit PD/2 for the post-mortem. The parcels of the various articles were deposited with the Moharrir Head Constable of the Police Station with seals in :tact and nobody tampered with the same till they remained in his custody. The Investigating Officer took into possession the clothes of the deceased duly sealed in a parcel vide Memo Exhibit PK, attested by the witnesses. On February 15, 1991, the witness arrested the accused in the presence of Partap Singh and other witnesses from near Bharrolanwali Bridge of Khunan Minor: He took into possession gun Exhibit P8, cartridges Exhibits P9/1 to P9/4 and licence Exhibit P10 from the possession of accused Ram Narain. These were made into sealed parcels vide Memo Exhibit PF which was prepared by him and attested by the witnesses. Rough Site Plan of the place of recovery is Exhibit PF/1. He completed the formalities of investigation of this case.
10. Affidavits of formal witnesses as well as the Reports of the Chemicals Examiner, Exhibits PM, PM/1 and PM/2 were also tendered into evidence.
11. When examined under Section 313, Code of Criminal Procedure, accused Ram Narain denied the prosecution allegations and took the following plea:
...Pritam Singh and Buta Singh used to harbour terrorists and have got administered a threat to me on account of which I had made a request to the District Administration and had been provided with a police guard for several months. When the police guard was withdrawn. I had been maintaining Narsi as my private guard. I did not divert the flow of water on that day, nor Ram Chandar and Chhotu were present by my side as alleged by the complainant nor Pritam Singh or Kirpa Singh were there; Buta Singh alone came with a Kassi, he abused me and wanted to assault me with a Kassi; I grappled with him to save myself; we fell down on the wheat crop which got trampled. I got rid off Buta Singh he, however, chased me to assault me with a Kassi in my field; thereupon Narsi my body-guard, picked up the gun lying there and fired a shot in my defence which struck Buta Singh. I approached the police on the same day and narrated the whole story to the police. The police did not record my report. However, they retained my gun and the bag of ammunition and fabricated the empty cartridges later on; Narsi is still absconding. The police did not find any empty cartridges at the place of occurrence. Kirpa Singh did not have his turn of water at that time.
Accused Ram Narain was given an opportunity to lead defence evidence, but he did not do so.
12. The learned Sessions Judge, Hissar, found Ram Narain accused guilty of an offence of murder and convicted and sentenced him under Section 302, Indian Penal Code, to undergo imprisonment for life and to pay a fine of Rs. 5,000/-, or in default of payment of fine to undergo further Rigorous Imprisonment for two years. He was also sentenced to undergo rigorous imprisonment for two years under Section 27 of the Arms Act. Both the substantive sentences were, however, ordered to run concurrently.
13. Ram Chander and Chhotu Ram both sons and co-accused of Ram Narain were, however, given the benefit of doubt and acquitted of the charges framed against them, by the learned Sessions Judge, Hissar.
14. This is how this appeal preferred by Ram Narain accused-appellant is before us.
15. The learned Counsel for the appellant submits that the presence of alleged eyewitnesses, Kirpa Singh and Pritam Singh at the time of occurrence is doubtful. According to him, if Kirpa Singh and Pritam Singh were present at the spot, then Ram Narain should have fired at Kirpa Singh instead of Buta Singh, as the main grouse of Ram Narain was against Kirpa Singh who had allegedly objected to diversion of flow of water by Ram Narain during their turn. Kirpa Singh (PW 1), Pritam Singh (PW 2) and Buta Singh (deceased) were closely related to each other and there is nothing extraordinary or incongruous if all of them were found present at the spot at the time of occurrence. A reasonable doubt is not an imaginary or a merely possible doubt, but a fair doubt based upon reason and common sense. Nothing was elicited against the eye-witnesses to suggest that their evidence was unreliable and their presence at the spot in any way was doubtful.
16. It is not in dispute that the occurrence had taken place in the field of Ram Narain appellant at about 1 p.m. on February 10, 1991 and Buta Singh died as a result of a gun shot fired from a .12 bore double-barrel gun Exhibit P8, which was recovered from the possession of appellant Ram Narain. According to Report, Exhibit PM, of the Ballistic Expert, the crime cartridge empty as well as missed cartridge Exhibits P6 and P7 respectively had actually been fired from the gun Exhibit P8. It has also come in evidence that the pellets recovered from the dead body of Buta Singh could form part of a .12 bore cartridge like Exhibit P6. In fact, it has not been disputed that the gun in question had actually been used in the crime. It is in the evidence that Kirpa Singh (P.W. 1) and Buta Singh (deceased) son of Kirpa Singh's maternal uncle had gone together to the field of Ram Narain and also made a joint protest to Ram Narain for having diverted the flow of water from the water-course. It is proved from Exhibit PH which is a record of warabandi of the village of Sukh Chain minor that complainant Kirpa Singh (PW 1) had his turn of water from 1.22 p.m. to 3-30 p.m. on February 10, 1991. Another fact which is proved on the record and is discernible from this document is that convict-appellant Ram Narain did not have his turn of water immediately after Sucha Singh or Kirpa Singh (PW 1). It is again an admitted fact that there was no previous enmity between Kirpa Singh and Buta Singh or even Pritam Singh with the appellant. The only suggestion made to the witnesses was that Pritam Singh PW had been suspected of harbouring terrorists and Buta Singh had been a previous convict. It was further suggested to the witnesses that Ram Narain had been provided with a Police Guard by the Government which was later withdrawn. It is a common knowledge that at the time of taking their turn of water for watering their fields, the farmers do take the assistance of their relations or friends for irrigating their fields. In the instant case, Buta Singh (deceased) and Pritam Singh are close relations of Kirpa Singh (P.W, 1). Pritam Singh is maternal-uncle and Buta Singh (deceased) was the son of Pritam Singh (P.W. 2). As stated above, Kirpa Singh had his turn of water and had gone to the fields after taking Buta Singh along, when it was found by them that the flow of water in the khal (water-course) had decreased. Whiles checking as to why the flow of water had decreased, they reached near the fields of Ram Narain and found that Ram Narain along with Ram Chander and Chhotu were irrigating their fields after diverting the water from the water-course. It was but natural for the complainant-party to ask Ram Narain as to why had had diverted the water when it was their turn. It was in these circumstances that the altercation took place and Ram Narain fired a shot at Buta Singh which hit him on his chest and he succumbed to the injury on the spot. The presence of Kirpa Singh, Buta Singh (deceased) and Pritam Singh who happened to be very near relations and had accompanied Kirpa Singh (PW. 1) to water his fields was, thus, natural and probable on the spot at the time of occurrence.
17. The argument of the learned counsel for the appellant that Kirpa Singh should have been the target instead of Buta Singh, does not find favour with us. It is in the statement of P.W. 1 Kirpa Singh that he along with Buta Singh had gone to the fields near the fields of Ram Narain and both of them had approached Ram Narain and asked him that it was their turn of water and they, viz. Ram Narain and his sons should not have diverted the flow of water during their turn. At that time, Pritam Singh (P.W. 2) had come close to them when they were talking to Ram Narain. It is clear from scaled plan Exhibit PG that Buta Singh was little ahead of Kirpa Singh at the time of occurrence. It was, thus, in these circumstances, that Ram Narain fired at Buta Singh who was little ahead of Kirpa Singh and who had also lodged protest along with Kirpa Singh and Pritam Singh. It is not known as to what was operating in the mind of Ram Narain when he rest content with finishing Buta Singh only. Perhaps, he might have thought it sufficient to kill Buta Singh only who was ahead of the three and who was also one of the protestors to teach the others a lesson.
18. The learned counsel for the appellant further urges that the lying of dead body at a dry place negates the theory of irrigation put up by the prosecution. Ram Narain had got a large tract of land, but water-course was diverted just before Kirpa Singh (P.W. 1), Buta Singh (deceased) and Pritam Singh (P. W. 2) reached the place of occurrence, that is, in the fields of Ram Narain after noticing the decrease in the water level in the watercourse. It was not possible that within that short period, the whole of the field or even one-tenth of the field of Ram Narain could have been watered. Thus, the factum that occurrence had taken place and the dead body was found lying at a dry piece of land would not detract the truthfulness of the prosecution story.
19. It was further argued by the learned counsel for the appellant that the crop around the dead body was trampled which proved the defence version that Buta Singh chased Ram Narain in order to assault him with kassi; that Ram Narain Scuffled with Buta Singh to ward off the blow, then both of them fell on the wheat crop and Ram Narain got up and tried to run away when Buta Singh followed him; that in order to defend Ram Narain, Narsi picked up the gun and fired at Buta Singh; and that Ram Narain fired the shot. This argument also does not impress us. The trampling of wheat crop was not something unnatural or unusual in such circumstances. When Ram Narain etc. fled away in a Jeep immediately after shooting Buta Singh then naturally Kirpa Singh and Pritam Singh eyewitnesses should have rushed towards Buta Singh to take care of him. The trampling of crop is, thus, natural. Even otherwise, after the occurrence there could be a possibility of some persons visiting the spot.
20. The learned counsel for the convict-appellant further argues that though according to the prosecution only a single shot was fired at by the convict-appellant but one empty and one missed cartridge were recovered from the spot and the photographs did not indicate the presence of either the fired or the missed cartridge. It has been stated by the witnesses at the trial that accused had reloaded the gun and fired in the air before he left the place of occurrence. The existence of an empty and a missed cartridge is fully explained as they must have fallen when the accused re-loaded the gun after the second cartridge missed fire. The learned counsel further argues that the factum of re-loading the gun by Ram Narain was not disclosed in the First Information Report and it was an improvement at the trial. We are not agreeable with this plea of the learned counsel, as it is neither necessary nor possible to give the details of the prosecution story by a witness when lodging the First Information Report. First Information Report is not an encyclopaedia of the entire case and is even not a substantive piece of evidence. It has value, no doubt, but only for the purpose of corroborating or contradicting the maker. The omission of details in the First Information Report which was recorded most promptly within about three hours of the occurrence and had reached the Ilaqa Magistrate without loss of time would not tell on the prosecution case or statements of the eye-witnesses with regard to the participation of the appellant in the crime. The appellant had fired at the deceased Buta Singh without the least provocation,
21. Another objection of the learned counsel for the appellant is that the empty and the missed cartridge recovered from the spot were not visible in the photographs of the place of occurrence. This circumstance is of no consequence, as the empty and missed cartridges were likely to have been hidden under the crop standing in the field, where the occurrence had taken place. Moreover, the convict-appellant had not denied that Buta Singh was not fired at with gun Exhibit P8. His only plea was that it was not he but one Narsi who was alleged to be his body guard who had fired at Buta Singh from his gun, that is, from Ram Narain's gun. The story put up by the defence that Narsi, alleged bodyguard of Ram Narain, had picked up Ram Narain's gun and fired at Buta Singh to defend Ram Narain does not sound to reason. First of all, it is not established from the evidence on the record that Ram Narain convict-appellant was provided any bodyguard by the Government. Providing of bodyguard by the Government to Ram Narain had been specifically denied by the Investigating Officer Kishan Dutt (PW7) when he was asked this question at the trial. Moreover, it is not established from anywhere on the record that a person named as Narsi by the convict-appellant as his body-guard was at all his body-guard at any point of time before or at the time of occurrence. Even Jai Narain Patwari (PW. 5) did not support the plea of the defence that Narsi was the body-guard of Ram Narain at the relevant time. When cross-examined, the Patwari had specifically stated that he did not know the name of his bodyguard nor he could say as to whether his name was Narsi. If at all there was any body-guard provided to him, the convict-appellant could easily bring some evidence on the record in order to prove his plea which he had specifically taken in his defence. The convict-appellant even did not furnish the particulars of Narsi as to who was his father or to which place he belonged or resided. Moreover, if according to the defence version, Narsi had fired at Buta Singh then Kirpa Singh would have been the last person to omit the name of the real culprit and inculpate some other person, particularly so when there was no previous enmity between Kirpa Singh, Buta Singh (deceased), Pritam Singh and Ram Narain, convict-appellant inter se. The presence of the eye-witnesses, that is, Kirpa Singh (P.W. 1) and Pritam Singh (P.W. 2) on the facts and in the circumstances of this case sounds natural and probable at the time of occurrence. The First Information Report was lodged promptly. The name of the accused, that is, the assailant who fired at Buta Singh and the description of the weapon were disclosed in the First Information Report. The occurrence had taken place at about 1 p.m. The First Information Report was recorded at 4-15 p.m. and the Special Report reached the Ilaqa Magistrate at 4-30-p.m. on the same very day. Prompt lodging of the First Information Report lends further assurance to the prosecution story.
22. The next plea of the learned counsel for the appellant is that two accused having been acquitted despite eye-witnesses deposing to their participation, no credence should be given, to the prosecution witnesses in order to maintain the conviction of the appellant. The maxim falsus in uno falsus in omnibus has been pressed into service. It has been ruled by the Supreme Court that this maxim is not a sound rule to apply in the conditions of our country and, therefore, it is the duty of the Court, in cases where a witness has been found to have given unreliable evidence in regard to certain particulars, to scrutinise the rest of his evidence with care and caution. If the remaining evidence is trustworthy and the substratum of the prosecution case remains intact then the Court should uphold the prosecution case to the extent it is considered safe and trustworthy. The mere fact that the evidence of the prosecution witnesses was not firm and safe enough to be relied upon with regard to the part assigned to the acquitted accused in the occurrence was no ground to reject it mechanically against the appellant also. In our considered view, the prosecution evidence including the eye-witness account about the participation of the appellant in the crime is acceptable and it proves his guilt beyond any reasonable doubt.
23. Lastly, the learned counsel for the appellant contended that no case is made out under Section 302, Indian Penal Code, as only one shot was fired at which was not repeated. It was a sudden affair, according to the learned counsel, and there was no previous enmity between the parties. The offence, according to him falls under Exception (4) to Section 300 of the Indian Penal Code. He has cited Surinder Kumar v. Union Territory of Chandigarh (1989) 2 Chand LR (Cri) 78 : (1989 Cri LJ 883) (SC) and Jagat Singh v. State of Haryana, AIR 1976 SC 2619 : (197,6 Cri LJ 2002) in order to substantiate his plea. In Surinder Kumar's case (supra), PW 2 Kesho Ram and his deceased brother had entered the room of the appellant and uttered filthy abuses in the presence of the latter's sister. Tempers ran high. It was only after PW 2 Kesho Ram, brother of the deceased took out a pen knife that the appellant picked up the knife from the kitchen, ran towards him and inflicted a simple injury on his neck. The deceased was only an intervener on the side of his brother who received injuries in the course of scuffle, one of which proved fatal. It was only in those circumstances that the appellant was given the benefit of Exception (4) to Section 300 of the Indian Penal Code.
24. In Jagat Singh's case (1976 Cri LJ 2002) (SC) (supra), we would like to first record the finding of the High Court and then advert to the finding of the apex Court. The situation in which the appellant had fired from his gun, as recorded by the High Court, was like this (at p. 2003 of Cri LJ) :
The students adopted an agitational approach' right from the start. A political worker who was not a student was seen addressing the students on the college lawns exhorting them to stay away from the classes, and the appellant trying to catch him gave him a chase. This infuriated a section of the students who considered the said political worker as their 'guest'. It was after the incident involving their 'guest' that the students adopted an aggressive posture against the appellant. The sportswear about which grievance was made had been supplied to the students about six or seven months before the date of occurrence and the demand for accounts from the appellant was "raised only as a bogey by the students... to avenge the insult which they thought had been caused to them" by the appellant trying to catch hold of their 'guest', One of the slogans raised by the students was 'dismiss Jagar Singh'. The High Court further found that the prosecution witnesses had concealed the real origin of the incident and what "actually happened when they (students) confronted the appellant". According to the High Court "the students in that agitatic mood could not have allowed the appellant to calmly leave for the house as stated by them". The High Court observed further that the appellant was a normal man, in possession of normal faculties and was "not expected to embark upon such a hazardous path to fire shots without any provocation.
The apex Court taking into consideration the abovesaid factual position stated by the High Court observed as under (at pp. 2003-2004 of Cri LJ) :
In the situation described in the judgment of the High Court it would seem that the appellant brought the gun from his house to protect himself having seen the 'aggressive posture' of the students and then, faced with the fury of the students, he lost nerve and fired from his gun. On the findings of the High Court we hold that the case comes under the first part of Section 304 of the Indian Penal Code and not Section 302.
It was in that peculiar situation when the provocation was provided by the students to the appellant in that case and he had brought the gun from his house to protect himself having seen the aggressive posture of the students and it was in that situation when he lost his nerve and fired from his gun. The apex Court in such circumstances held that the case was covered under Section 304, Indian Penal Code, and not under Section 302, Indian Penal Code.
25. The factual position in both the cases cited above is neither similar nor even nearer to the facts of the case in hand. In this case, no provocation was offered either by the complainants or by the deceased or by any of the eye-witnesses to the appellant. It is borne out from the evidence on the record that Buta Singh deceased was empty-handed when he along with the complainant Kirpa Singh (PW 1) had lodged the protest to the appellant. When Kirpa Singh (PW 1) and Buta Singh (deceased) had gone to their fields near the field of Ram Narain 22 killas upstream and saw that Ram Narain had diverted the flow of water to his field then Kirpa Singh and Buta Singh deceased had approached Ram Narain appellant and asked him that it was their turn of water and that he should not have diverted the flow of water during their turn. Instead of stopping the illegal flow of water to his fields, Ram Narain fired at the deceased Buta Singh which hit him on his chest and he died there and then. Thus, in such circumstances when the appellant without any provocation fired from his gun at Buta Singh which hit him on his chest and he died at the spot, in our view the offence is clearly covered under Section 302, Indian Penal Code. We gather support to our view from a recent decision of the Supreme Court in A. N. Chandra v. State of U.P. 1991 SCC (Cri) 79. In that case also only one gun shot injury was caused by the accused and the plea of convict-appellant before the apex Court was that the occurrence was due to quarrel and the accused in the heat of passion without knowing what he was doing must have inflicted the single injury and therefore it is only a culpable homicide. However, the Supreme Court after considering the matter, held as under :
...We see absolutely no force in this submission. The single injury theory cannot be made applicable to a case where a deadly weapon like firearm is used. Even a single injury caused by a firearm would only lead to the inference that death was caused intentionally. This aspect does not warrant any further discussion. We see absolutely no merit in this appeal. It is, therefore, dismissed.
26. In view of our detailed discussion above, we are not inclined to interfere with the finding of the learned trial Court. This appeal, thus, fails and is dismissed.
27. Revision petition is also dismissed.