S.B. Sinha, J.
1. Appellant is before us aggrieved
by and dissatisfied with a judgment and order dated 6.11.2006 passed by
a Division Bench of the High Court of Punjab and Haryana at Chandigarh
in Criminal Appeal No. 372-DB of 2003 and Criminal Revision No. 1475 of
2003 affirming the judgment and order dated 27.03.2003 convicting him
for commission of an offence under Section 302 of the Indian Penal Code
and Section 27 of the Arms Act.
2. The family of the appellant and
the family of Dinesh (deceased) were residents of the same village.
Their houses are intervened only by a road. The deceased and Manjit,
brother of the appellant, were studying together in the same college.
They were, however, not on speaking terms. Altercations had also taken
place between the deceased and the appellant during Panchayat elections.
Appellant thereafter had allegedly been threatening him. A First
Information Report was lodged by Rajpal Singh, uncle of the deceased to
that effect. The wedding of his niece had been fixed on 17.02.2002. The
marriage celebrations had been going on. Appellant and Manjit, however,
took objections to the singing etc. by the ladies, and they used to
threaten them. On that account their festive mood would be turned into
grief. On 14.02.2002 at about 8 p.m. Rajpal came out of his house.
Appellant accosted him asking why such a noise in the neighbourhood was
being made. He ignored him and continued walking. Dharmpal father of the
appellant made a remark that it did not matter as he would come back by
the same way. He was returning home at about 11 p.m. when Dharmpal
caught hold of him. Appellant came at the spot armed with a gun. They
started beating him. Rajpal called out for his nephew (Dinesh) and as
soon as he opened the door, a shot was fired by the appellant at him.
Almesh, another nephew (PW-10) of the first informant was also following
Dinesh. He also witnessed the occurrence. Appellant, his father and
brother went inside his house. After some time, however, the appellant
came out with his brother Manjit and started walking. Dharmpal fired
shots in the air.
3. Rajpal started proceeding to the
police station which was about 11 kms. from the village. On his way,
however, he met Satpal Singh Sub-Inspector of Police at about 2.00 a.m.
and informed him about the incident. The First Information Report was
recorded at about 3.10 a.m.
4. In the trial, the prosecution
inter alia examined Rajpal (PW-8) and Almesh (PW-10). On the basis of
the evidence brought on record by the prosecution, while acquitting
Dharampal and Manjit, the learned Sessions Judge found the appellant
guilty of committing murder of Dinesh. He was sentenced to undergo
rigorous imprisonment for life and to pay a fine of Rs. 5,000/-. He was
also sentenced to undergo imprisonment for a period of two months and to
pay a sum of Rs. 1,000/- as fine under Section 27 of the Arms Act. As
noticed hereinbefore, the High Court has affirmed the said judgment of
conviction and sentence
5. Mr. Jawahar Lal Gupta, learned
senior counsel appearing on behalf of the appellant, took us through the
First Information Report, the depositions of PWs 8 and 10 as also the
medical evidence. It was contended that the medical evidence does not
corroborate the ocular evidence. The learned Senior Counsel urged that
from a perusal of the injuries noticed by the Autopsy Surgeon, it would
appear that the entry point of the bullet was 12 cms from the right
nipple and the exit point was on the left side, whereas Rajpal in his
deposition categorically stated that the deceased suffered fire arm
injuries near the right nipple.
6. The learned counsel submitted
that as the shot was allegedly fired when Dinesh was opening the door
when he was very much inside the house, it is improbable that he
received gun shot injury from a fire from a distance of about 15 feet,
particularly, when the appellant was not said to be standing just in
front of the door. He further contended that Almesh could not be an
eye-witness to the occurrence as he was following Dinesh and, thus,
could not have seen as to who had fired the shot. The prosecution story
having been disbelieved in part insofar as Manjit and Dharmpal having
been acquitted, the courts below misdirected itself in convicting the
appellant for murder of the deceased. In any event, the learned counsel
urged that as nobody could anticipate that the fired shot would hit
Dinesh; Exception 4 to Section 300 of the Indian Penal Code is attracted
in their case.
7. Mr. Rajeev Gaur, learned counsel
appearing on behalf of the State, however, on the other hand, submitted
that the doctrine of falsus in uno, falsus in omnibus is not applicable
in India. It was contended that the discrepancy between the medical
evidence and the ocular evidence is not such which would lead to the
conclusion that the appellant was innocent.
8. The following injuries were found
on the person of the deceased:
"1. Lacerated wound 2.5 cms x 1.5 cms was present over right lateral
chest wall in the mid aillary line, 12 cms from right nipple. Margins of
the wound were inverted. On dissection under lying muscles were
lacerated. There was fracture of 6th, 7th and 8th ribs on right side.
Right pleura was lacerated. Track of the wound was going medially,
downwards and anteriorly. Middle and lower lobes of right lung were
lacerated extensively. Right pleural cavity was full of blood. Extensive
lacerations were present in heart, middle and lower lobes of left lungs.
Left pleural cavity was full of blood. Pericardium and left pleura were
2. There was a oval shaped lacerated
wound present over left anterior aspect of chest wall 4 x 3.5 cms
margins were inverted, 3 cm below and medial to left nipple, 7.5 cms
lateral to mid line. Clotted blood was present. Intercostals muscles
were lacerated "
9. The cause of death in the opinion
of Dr. A.S. Ahlwat (PW-9) was extensive haemorrhage and shock as a
result of the injuries which were ante-mortem in nature and sufficient
to cause death in normal causes of nature. According to his opinion,
"the injuries had been caused by firearm".
10. The death of Dinesh being
homicidal in nature is not in dispute. In a case of this nature, the
evidence of the prosecution witnesses, in our opinion, should be
considered keeping in view the backdrop of events.
11. It is not in dispute that there
was a marriage in the family. Marriage of Manisha was fixed on
17.02.2002. It has also not been disputed that as of custom the ladies
sing songs and play music for the ensuing marriage in the family.
Objections thereto were taken by the appellant and his family.
12. The incident had taken place at
about 11 p.m. The First Information Report was recorded at about 3.10
a.m. A death had occurred. The dead body was lying in the house. The
first informant and other had also been threatened.
13. In the aforementioned situation,
the First Information Report must be held to have been lodged without
any delay. A First Information Report, as is well-known, should be
treated to be an encyclopaedia. Satpal Singh, Sub-Inspector (PW-12) came
to the village immediately. He conducted the proceedings under Section
174 of the Code of Criminal Procedure and recorded the statements of the
witnesses. According to the said witness, they reached Mahra turning at
about 1.45 a.m. and the complainant came to the said place almost
14. Mr. Gupta contended that the
investigating officer had not pointed out the spot from where the
witness saw the occurrence in the site plan. This may be so. The site
plan, however, shows all other details. It is not of much dispute that
Rajpal was being assaulted on the way. There was a cattle shed. The
house of the appellant is by the side of the house of his brother Inder
Singh. The distance between the door of the complainant's house and that
of Dharmpal was about 20 feet.
15. There is furthermore no dispute
that the informant could see the incident. Appellant alone was armed
with the gun. The other accused Dharmpal and Manjit were not.
16. As Rajpal was being assaulted,
it was natural for him to give a call to his nephews. It is also but
natural that they would respond to his call. Nobody could have thought
that the appellant would fire a shot at Dinesh. Both the eye-witnesses
had stated about firing of the shot. Almesh might not have seen the
actual firing a shot but as soon as Dinesh had fallen down on receipt of
the fire arm injury, he could have seen the appellant with a gun.
Appellant, his father and brother went inside their house which is
almost opposite to theirs. There is no reason as to why we should
disbelieve the testimonies of PWs 8 and 10.
17. Rajpal might have stated that
the deceased received bullet injuries on the left side of his body. The
injury on the left side of the body of the deceased was apparent. When a
shot is fired all of a sudden, it is difficult for anybody to give a
vivid description of the entire incident. One should not forget that he
was being assaulted. Dinesh answered to his call and as soon as he
opened the door after he received the gun shot injury. In what position
Dinesh was standing at the fateful moment can only be a matter of guess.
It could not have been noticed by PW-8. In our opinion, it was also not
18. We may notice that in Brij
Lal v. State of Haryana [(2002) 1 SCC 700], this Court in almost
similar situation held:"3. We heard Mr Sushil Kumar, learned Senior
Counsel for the appellant. Learned counsel for the appellant pointed out
that PW 3 Mani Ram, who was an eyewitness and gave the FI statement,
stated that Brij Lal fired a shot at Dharam Paul which hit the left
eyebrow of Dharam Paul and as a result thereof his skull from behind was
blown off at the exit point and it caused the instantaneous death of the
deceased and this evidence, according to the appellant ' s counsel, is
weak, false and discrepant and the occurrence might not have happened as
alleged by the prosecution. It is argued that as per the inquest report
the main injury on the deceased was shown to have been caused on the
back side of the head, whereas the medical evidence showed that injury
was caused by a firearm from the front side of the deceased. The
investigating officer could not detect the entry wound possibly because
the head must have been smeared with blood. The evidence of two
eyewitnesses clearly showed that the appellant first shot the deceased
Dharam Paul and there was a second shot at PW 4 Ram Kishan. It is true
that PW 3 deposed that the appellant first shot his brother Dharam Paul
on the back side of the skull. But the medical evidence shows that this
shot hit on the eyebrow. Based on this, it was contended that it was not
the appellant but somebody else hiding on the rear side who must have
caused this injury. We do not find any force in this contention. The
incident happened all of a sudden and when firing took place it would be
difficult to state on which part of the body the bullet hit. In the
instant case, the evidence of PW 4 shows that he himself sustained an
injury at the hands of the appellant. It is clearly proved that it was
the appellant and none else who was responsible for the crime. The minor
discrepancies in the evidence only lend assurance to the credibility of
the prosecution case."
19. We, therefore, cannot accept the
submission of Mr. Gupta that PWs 8 and 10 are not reliable witnesses.
20. Mr. Gupta has placed strong
reliance on Pratap Singh and Another v. State of M.P. [(2005) 13
SCC 624] wherein this Court was concerned with reversal of a judgment of
acquittal by the High Court. The High Court, while reversing the
judgment of acquittal, made certain comments about the investigating
officer. In that case, it was opined that preparation of a site plan was
necessary as the only eye-witness who had been cutting grass was at a
distance of 105 feet from the place of occurrence alleging that he
having noticed the appellants therein proceeding towards the deceased
with barchhi and lathi not only started running towards the place of
occurrence but in fact climbed upon a mound and saw the entire
occurrence. It was in the aforementioned peculiar fact situation this
" If a site plan has been prepared
and if during the investigation it has been brought to the notice of the
investigating officer that there were some other witnesses whose
evidence would be material for the purposes of proving the prosecution
case, namely, witnessing the occurrence by two independent witnesses; we
do not see any reason why evidence of such witnesses should not have
been recorded. It is correct that it is the duty of the investigating
officer to produce the said statements with the charge-sheet but, if the
same had not been done, the benefit thereof must be given to the defence
and not to the prosecution "
21. It is, however, not a case where
the site plan at all was prepared.
22. The site plan showed the
material particulars. The place where the complainant was being
assaulted has clearly been stated in the First Information Report as
also in his deposition by Rajpal. Almesh admittedly was inside the
house. We, therefore, do not see any reason to throw out the prosecution
case only on the ground that in the site plan the investigating officer
had failed to pinpoint the place where the witnesses were standing at
the time of occurrence. The investigating officer had accepted that he
failed to do it. This, however, does not take the defence case any
further as it has been proved, it will bear repetition to state, that
the appellant was armed with a gun and he was seen firing a shot and he
has also been seen leaving the place of occurrence with the gun in his
23. The High Court, in our opinion,
cannot be said to be wrong in affirming the judgment of conviction of
the appellant and acquittal of the other passed by the learned Sessions
Judge. In a case of this nature, sharing of common intention with the
appellant by Dharmpal and Manjit for commission of the murder of Dinesh
cannot be held to have been established.
24. So far as submission of the
learned counsel as regards applicability of Exception 4 of Section 300
of the Indian Penal Code is concerned, the High Court had recorded an
order of acquittal not on the ground that Dharmpal and Manjit did not
take part in the occurrence but proceeded on the basis that they did not
share the common intention. It is, therefore, not a case where the
statements of the witnesses were to be disbelieved by the courts.
25. The submission of Mr. Gupta that
the appellant had no intention to commit murder cannot be accepted. He
had fired a shot from the gun which he was carrying. There was no
provocation. The shot was fired on a vital part of the body. Dinesh was
not carrying any arm. He merely came out probably to ascertain what was
26. There was no immediate
provocation. As the deceased was not armed with a gun and was merely
opening the door, the appellant must be held to have taken undue
advantage of his position.
27. In Narayanan Nair Raghavan
Nair v. State of Travancore Cochin [AIR 1956 SC 99], this Court
opined:"It was then argued that this was a case of a sudden fight and so
the case falls within the fourth Exception to Section 300 of the Indian
Penal Code. It is enough to say that the Exception requires that no
undue advantage be taken of the other side. It is impossible to say that
there is no undue advantage when a man stabs an unarmed person who makes
no threatening gestures and merely asks the accused's opponent to stop
fighting. Then also, the fight must be with the person who is killed.
Here the fight was between Velayudhan (PW 1) and the appellant. The
deceased had no hand in it. He did not even try to separate the
assailants. All he did was to ask his son-in-law Velayudhan (PW 1) to
stop fighting and said that he would settle their dispute."
8. In Subhash Shamrao Pachunde v.
State of Maharashtra [(2006) 1 SCC 384], this Court observed:
"15. The ingredients of the said
Exception 4 are (i) there must be a sudden fight; (ii) there was no
pre-meditation; (iii) the act was committed in a heat of passion and
(iv) the assailant had not taken any undue advantage or acted in a cruel
manner.In the event the said ingredients are present, the cause of
quarrel would not be material as to who offered the provocation or
started assault. Indisputably, however, the occurrence must be sudden
and not pre-meditated and the offender must have acted in a fits of
16. In Rajendra Singh and Ors. v.
State of Bihar, this Court held:
"So far as the third contention of
Mr. Mishra is concerned, the question for consideration would be as to
whether the ingredients of Exception 4 to Section 300 of the Indian
Penal Code can be said to have been satisfied. The necessary ingredients
of Exception 4 to Section 300 are:
(a) a sudden fight;
(b) absence of premeditation;
(c) no undue advantage or cruelty.
but the occasion must be sudden and
not as a cloak for pre-existing malice. It is only an unpremeditated
assault committed in the heat of passion upon a sudden quarrel which
would come within Exception 4 and it is necessary that all the three
ingredients must be found. From the evidence on record it is established
that while the prosecution party was on their land it is the accused who
protested and prevented them from continuing with ploughing but when
they did not stop the accused persons rushed to the nearby plot which is
their land and got weapons in their hands and assaulted the prosecution
party ultimately injuring several members of the prosecution party and
causing the death of one of them while they were fully unarmed. In this
view of the matter on scrutinizing the evidence of the four eyewitnesses
PWs 2, 4, 7 and 8 who have depicted the entire scenario it is not
possible for us to agree with the submission of Mr. Mishra, learned
Senior Counsel appearing for the appellants that the case is one where
Exception 4 to Section 300 would be applicable. We, therefore, reject
the said submission of the learned Counsel."
17. Even if it be assumed that
responses to the questions put to the deceased or the complainant caused
provocation, the same evidently was because of the pre-existing malice
and the bias which the Appellant had against them. Moreover, the manner
in which the deceased and the complainant were assaulted show that the
assailants took undue advantage of the situation as they fell into the
gutter and were, thus, in a helpless condition.
18. In Prabhu and Ors. v. State
of M.P. 1991 Suppl. (2) SCC 725 a three Judge Bench of this Court
rejected a similar contention in a case where the accused inflicted more
than one injury stating :
"...The evidence, of PW 4, Dr. C.K. Datal, however, shows that the
deceased was belaboured mercilessly. There were innumerable contusions
on the entire body of the deceased from head to toe. The wrist, humerus,
etc. were fractured and the whole body was full of rod marks. There were
several contused lacerated wounds on the entire face and the left eye
was bleeding. The totality of the injuries caused to the victim clearly
supports the finding of both the courts below that the appellants went
on belabouring the deceased till he died on the spot.
19. In Thangaiya v. State of T.N.,
relying upon a celebrated decision of this Court in Virsa Singh v.
State of Punjab 1958 SCR 1495, the Division Bench observed:
"17. These observations of Vivian Bose, J. have become locus classicus.
The test laid down by Virsa Singh case for the applicability of Clause
"thirdly" is now ingrained in our legal system and has become part of
the rule of law. Under Clause "thirdly" of Section 300 IPC. culpable
homicide is murder, if both the following conditions are satisfied: i.e.
(a) that the act which causes death is done with the intention of
causing death or is done with the intention of causing a bodily injury;
and (b) that the injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death. It must be proved that there
was an intention to inflict that particular bodily injury which, in the
ordinary course of nature, was sufficient to, cause death viz. that the
injury found to be present was the injury that was intended to be
18. Thus, according to the rule laid
down in Virsa Singh case even if the intention of the accused was
limited to the infliction of a bodily injury sufficient to cause death
in the ordinary course of nature, and did not extend to the intention of
causing death, the offence would be murder. Illustration (c) appended to
Section 300 clearly brings out this point" Therein it was held that
there is no fixed rule that whenever a single blow is inflicted Section
302 would not be attracted.
20. No hard and fast rule, however,
can be laid down as different situations may arise having regard to the
factual matrix involved therein."
29. Having regard to the ratio laid
down in the said decisions, we cannot accept Mr. Gupta's second
30. For the reasons aforementioned,
there is no merit in this appeal which is dismissed accordingly.
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