Ashish Sahu and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Criminal Appeal No. 1216 of 2014 has been preferred by appellant Ashish Sahu alias Aashu and Criminal Appeal No. 981 of 2014 has been preferred by Bunti Sengar and Arvind Raj Tripathi challenging a common judgment, therefore, the same are being decided together.

Heard Mr. Nagendra Mohan, learned counsel for the appellants, Mr. Umesh Verma, learned A.G.A. for the State and Mr. R.K. Pathak, learned counsel for the complainant.

Under challenge in both the appeals is the judgment and order dated 21.7.2014 passed by learned Additional Sessions Judge, Court No. 8, Sitapur in Sessions Trial No. 292 of 2009, arising out of Case Crime No. 964 of 2008, Police Station Chakeri, District Kanpur Nagar whereby appellant Ashish Sahu alias Aashu was convicted for the offence under Section 302 I.P.C. and was sentenced with imprisonment for life and also with fine of Rs. 8,000/- with default stipulation of one year additional imprisonment. However, he was acquitted of the charges under Sections 504 and 506 I.P.C. and also under Section 25 of the Arms Act. The other two appellants, namely, Arvind Raj Tripathi, and Bunti Sengar were convicted for the offence under Section 302 I.P.C. and were sentenced with imprisonment for life and also with fine of Rs. 8,000/- with default stipulation of one year additional imprisonment. Both these two appellants were further convicted for the offence under Section 506 I.P.C. and were sentenced with rigorous imprisonment for a period of one year and also with fine of Rs. 1,000/- with default stipulation of two months additional imprisonment. The fourth accused Ajit Rajput was acquitted of all the charges levelled against him. The sentences inflicted by the trial court on the convicted appellants were to run concurrently. It was further directed that out of the entire fine amount, 75% of the same shall be paid to the complainant of this case.

The sessions trial was transferred under the orders of the High Court from District Kanpur Nagar to District Sitapur vide order dated 31.10.2013. It was decided at Sitapur, hence the appeal is before this Bench.

The prosecution case, in brief as disclosed in the F.I.R., was that complainant Ranveer Singh lodged an F.I.R. at Police Station Chakeri, District Kanpur Nagar on 14.9.2008 at 21:45 hours alleging therein that on the same day at about 8:15 p.m., he was present at the first floor of his house along with Kuldeep Singh Sorahi. It was alleged that in the meantime, appellant Ashish Sahu alias Aashu, Arvind Raj Tripathi alias Chhotu and Bunti Sengar came to the ground floor of his house and started abusing his son. Hearing the abuses, he rushed down the stairs and saw that Arvind Raj Tripathi alias Chhotu and Bunti Sengar were catching hold of his son Sunny (deceased) and exhorted Ashish Sahu alias Aashu to fire and to kill him. Ashish alias Aashu fired with his country-made pistol on his son, which hit him on his chest. In the meantime, on the spot, Vikas Singh son of Rama Shankar and Jitendra Bajpai son of R.S. Bajpai, who had come to join the Student Union Celebration, which was going on in the vicinity, reached there and they have also seen this incident. There was sufficient electricity light on the spot. The complainant and the other eyewitnesses made an attempt to apprehend the accused persons, then the accused persons fired and ran away. Thereafter the complainant took his son for treatment to Regency Hospital, Kanpur where he was declared dead and thereafter the complainant got the F.I.R. of this case scribed by Anil Kishore Pandey, Advocate and lodged the same at the police station.

On the basis of this F.I.R., investigation proceeded. S.S.I. Krishan Mohan Sharma, the first Investigating Officer of this case, inspected the place of occurrence and prepared its site plan and recovered one empty cartridge of 315 bore and prepared its memo. Inquest was prepared by S.I. Ravindra Bahadur Singh at the Mortuary. After completing the necessary formalities, the dead body was sent for postmortem. Under the special orders of the administration, the postmortem on the body of deceased Sunny alias Gurmeet Singh was conducted in the same intervening night i.e. 15.8.2008 at 2:40 a.m. The duration was within half day and the following ante-mortem injury was reported on the body of the deceased:-

(i) Firearm wound of entry 1 c.m. x 1 c.m. x bone deep (chest cavity deep) on mid of sternum between both the nipples, margins inverted underlying sternum was fractured. One metallic bullet was recovered from left side chest wall between wall muscle and ribs through 7th and 8th ribs.

In the opinion of the doctor, the cause of death was due to shock and hemorrhage as a result of ante mortem injury.

The postmortem was conducted by a team of two doctors. The other doctor also agreed with the finding recorded in the postmortem report.

During course of investigation, appellant Ashish Sahu alias Aashu, on a secret information, was arrested by the police on 15.9.2008 and from his possession, a country-made pistol of 315 bore along with two live cartridges was recovered. He also confessed before the police that he along with other accused persons, because of the enmity of the student election, has caused his death. A separate memo of recovered country-made pistol was prepared. The empty cartridge recovered from the place of occurrence along with clothes of the deceased and recovered country made pistol were sent to Forensic Science Laboratory and empty cartridge recovered from the place of occurrence was reported to have been fired from the country-made pistol, recovered from the possession of accused Ashish Sahu alias Aashu. The investigation was transferred on the next day i.e. 15.9.2008 and it was taken over by P.W.-13 Satendra Singh Rathore.

During investigation, nomination of Bunti Sengar and Arvind Raj Tripathi, who were named in the F.I.R., was found to be false, therefore, no charge sheet was filed against them. However, involvement of one Ajit Rajput was found in this incident, accordingly, charge sheet was filed against Ashish Sahu alias Aashu and Ajit Rajput. The other two appellants, namely, Bunti Sengar and Arvind Raj Tripathi were summoned by the trial court in exercise of power under Section 319 Cr.P.C. vide order dated 11.6.2009. However, fourth accused Ajit Rajput has been acquitted by the impugned judgment.

The defence of the appellant Ashish Sahu alias Aashu was that he is innocent and simply to remove him from Student Union Politics, he has been falsely implicated in this case by misleading the complainant of this case. The defence of appellant Arvind Raj Tripathi alias Chhotu was that in the year 2002, he was General Secretary of D.A.V. Degree College Student Union. Vikas Singh and Jitendra Bajpai had contested the election in the year 2003 in which Anurag lost the election. In the year 2004, Vikki Thakur contested the election of President against him. Since then Vikki Thakur and Jitendra Bajpai were on inimical terms with him and in collusion with the family members of the deceased, he has been falsely implicated in this case. Likewise the defence of Bunti Sengar was that he was not present on the place of occurrence and because of the instigation of the student leaders, he has been falsely implicated in this case.

In order to prove its case, the prosecution has examined P.W.-1 Ranvir Singh, complainant of this case, P.W.-2 Dr. Pushkar Anand, who has conducted the postmortem on the body of the deceased. P.W.-3 Head Constable Pramod Kumar Tiwari, who has prepared the chik report and G.D. of this case. P.W.-4 Kuldeep Singh Sirohi, the other eyewitness of this case. P.W.-5 Head Constable Jai Karan Singh, who has carried the dead body in a sealed condition after inquest for postmortem. P.W.-6 Constable Uday Prakash Singh, who has taken the case property in a sealed condition to Forensic Science Laboratory, Agra. P.W.-7 Sanjay Kumar Singh, Ballistic Expert, who has proved the report of Forensic Science Laboratory. P.W.-8 Satish Kumar Gautam, the third Investigating Officer of this case, who has taken over investigation of this case from 13.10.2008 and filed charge sheet. P.W.-9 S.S.I. Krishan Mohan Sharma, the first Investigating Officer of this case, who has conducted investigation for one day only. P.W.-10 S.I. Ravindra Bahadur Singh, who has conducted inquest proceedings. P.W.-11 Constable Bhagirath Singh, who has prepared chik report and G.D. of the case under the Arms Act. P.W.-12 Avadh Narain, he is the witness regarding the arrest and recovery of country-made pistol from the possession of appellant Ashish Sahu. P.W.-13 S.I. Satendra Singh Rathore, subsequent Investigating Officer, who has taken over investigation from 15.9.2008 and has also conducted investigation under the Arms Act and has filed charge sheet for the said offence.

In defence, no oral evidence was adduced on behalf of the appellant.

After appreciating the evidence available on record, the trial court has convicted the appellants as above, hence the instant criminal appeal.

Submission of learned counsel for the appellant was that in the instant case, he is not challenging the conviction of appellant Ashish Sahu alias Aashu. So far as it relates to appellant Ashish Sahu alias Aashu is concerned, he has restricted his argument only to the extent that it has come in the evidence that it was the deceased himself, who was abusing with filthy language to the appellant, therefore, offence, committed by appellant Ashish Sahu alias Aashu, would be an offence, which would fall under Section 304 Part (I) I.P.C. and not under Section 302 I.P.C. He has also submitted that there is specific evidence of the witness that there was absolutely no enmity between the deceased and appellant rather they were on good term and used to visit the house of the deceased.

Regarding the other two appellants, namely, Bunti Sengar and Arvind Raj Tripathi, he has submitted that during investigation, their nomination in the F.I.R. was found to be false and a careful perusal of the prosecution evidence also suggests that the offence was committed only by one person and this fact find supports from the fact that name of Ajit Rajput subsequently came into light during investigation. Therefore, appellants Bunti Sengar and Arvind Raj Tripathi become entitled for benefit of doubt as no role of firing has been assigned to them.

Learned A.G.A. has submitted that in the instant case the prosecution has proved its case beyond reasonable doubt. However, he has fairly conceded before the Court that during investigation, nomination of Bunti Sengar and Arvind Raj Tripathi was found to be false and name of Ajit Rajput was added, who was not named in the F.I.R. of this case. He has also conceded that the complainant himself has admitted in his cross-examination that he heard the noise of hurling abuses and his son (deceased) was hurling abuse using vulgar words.

Now we will first take up the case of appellant Ashish Sahu alias Aashu.

Learned counsel for the appellant has not challenged his conviction but his argument is restricted only to the extent that even if the entire case of the prosecution is taken to be true, even then, the offence would not travel beyond the purview of Section 304 Part (I) I.P.C.

We have carefully perused the evidence of P.W.-1 Ranvir Singh and P.W.-4 Kuldeep Singh Sirohi. Both these witnesses of fact, as per case of the prosecution, were present on the first floor of the same house, while the incident has taken place on the ground floor. Both these witnesses have assigned the role of firing to appellant Ashish Sahu alias Aashu. It has come in the evidence that there was absolutely no enmity of the appellant with the deceased rather they were on friendly terms. The complainant has stated that they used to come to his house frequently, therefore, he recognized them. In the instant case, two other persons, were made witnesses, who were present on the ground floor, namely, Vikas Thakur and Jitendra Bajpai. But none of them has been examined nor any other person of the vicinity could be examined by the prosecution to throw light on the point as to how the incident started because that was very important point to hold whether it was an offence under Section 302 I.P.C. or it would fall only under Section 304 Part (I) I.P.C. So we feel ourselves handicapped on this point for want of specific evidence on this point. Therefore, we will have to take into consideration, the evidence, which is available on record and benefit, if any, due to absence of evidence as to how the incident started would go to the appellant.

P.W.-1 Ranvir Singh in his cross-examination has admitted that he heard the abuses, which were being uttered by his son and he has also heard the words, which were being used by his son. He was using filthy language. It is an admitted case of the prosecution that the moment, the abuses were hurled, the complainant and P.W.-4 Kuldeep Singh came down and fire was shot by appellant Ashish Sahu alias Aashu. So net result on the basis of the evidence available on record, was that the deceased himself abused appellant Ashish Sahu alias Aashu using filthy language due to which, this unfortunate incident has taken place where deceased himself used filthy language, which provoked appellant Ashish Sahu alias Aashu and under the grave and sudden provocation by such abuse, he fired at the deceased.

On this point, learned A.G.A. has submitted that a person firing on the chest can be attributed the knowledge that his act is of such nature that would result in the death of deceased in all probabilities.

Learned counsel for the appellants has drawn the attention of this Court towards Exception 4 of Section 300 I.P.C. which reads as under:-

"Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation.-It is immaterial in such cases which party offers the provocation or commits the first assault."

The evidence of P.W.-1 complainant Ranvir Singh shows that the words used by the deceased, which were heard by this witness, were sufficient enough to provoke any person of a young age to react and in this background under grave and sudden provocation, appellant Ashish Sahu alias Aashu fired at the deceased.

Now we will consider the legal aspect of this submission. Hon''ble the Apex Court in the case of Rampal Singh Vs. State of U.P. reported in , 2012 Cri. L.J. 3765 has considered the distinction between culpable homicide and murder and has observed in paragraph No. 14 and 15, which reads as under:-

"14. This Court has time and again deliberated upon the crucial question of distinction between Sections 299 and 300 of the Code, i.e., ''culpable homicide'' and ''murder'' respectively. In the case of Phulia Tudu and Anr. v. State of Bihar (now Jharkhand) [, AIR 2007 SC 3215], the Court noticed that confusion is caused if courts, losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of these sections. The Court provided the following comparative table to help in appreciating the points of discussion between these two offences:

Section 299

Section 300

A person commits culpable homicide if the act by which the death is caused is done-

Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done.

Intention

(a) with the intention of death; or

(1) with the intention of causing death; or

(b) with the intention of causing such bodily injury as is likely to cause death; or

injury as is likely to cause death; or

(2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or

(3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

KNOWLEDGE

(c) with the knowledge that the act is likely to cause death .

(4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse or incurring the risk of causing death or such injury as is mentioned above.

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."

In the facts of that case, Hon''ble the Apex Court has partially allowed the appeal and converted the conviction from under Section 302 I.P.C. to Section 304 Part (I) I.P.C. and awarded a sentence of ten years rigorous imprisonment. In the facts of that case, appellant shot at the deceased with his rifle and ran away.

In the case of Manjeet Singh Vs. State of Himachal Pradesh reported in , (2014) 5 SCC 697. There was no intention to cause death and incident took place on the spur of moment and due to firing from the carbine the death was caused. Hon''ble the Apex Court has held that offence would fall under Section 304 I.P.C.

In the case of K. Ravi Kumar Vs. State of Karnataka reported in , (2015) 2 SCC 638 Hon''ble the Apex Court has again considered the distinction between Section 302 I.P.C. and Section 304 I.P.C. And has observed in paragraph No. 11 to 15 as under:-

In Surinder Kumar v. Union Territory, Chandigarh , (1989) 2 SCC 217, this Court on the same issue held that if on a sudden quarrel a person in the heat of the moment picks up a weapon which is handy and causes injuries out of which only one proves fatal, he would be entitled to the benefit of the Exception provided he has not acted cruelly. This Court held that the number of wounds caused during the occurrence in such a situation was not the decisive factor. What was important was that the occurrence had taken place on account of a sudden and unpremeditated fight and the offender must have acted in a fit of anger. Dealing with the provision of Exception 4 to Section 300, this Court observed:

To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly."

In Ghapoo Yadav and Ors. v. State of M.P. , (2003) 3 SCC 528, this Court held that in a heat of passion there must be no time for the passion to cool down and that the parties had in that case before the Court worked themselves into a fury on account of the verbal altercation in the beginning. Apart from the incident being the result of a sudden quarrel without premeditation, the law requires that the offender should not have taken undue advantage or acted in a cruel or unusual manner to be able to claim the benefit of Exception 4 to Section 300 Indian Penal Code. Whether or not the fight was sudden, was declared by the Court to be decided in the facts and circumstances of each case. The following passage from the decision is apposite:

.......... The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender''s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 Indian Penal Code is not defined in the Indian Penal Code. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".

........ After the injuries were inflicted the injured had fallen down, but there is no material to show that thereafter any injury was inflicted when he was in a helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accused-Appellants had come prepared and armed for attacking the deceased. ............. This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on the deceased, but had not acted in a cruel or unusual manner. That being so, Exception 4 to Section 300 Indian Penal Code is clearly applicable ......

In Sukhbir Singh v. State of Haryana , (2002) 3 SCC 327, the Appellant caused two Bhala blows on the vital part of the body of the deceased that was sufficient in the ordinary course of nature to cause death. The High Court held that the Appellant had acted in a cruel and unusual manner. Reversing the view taken by the High Court this Court held that all fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of Exception 4 to Section 300 Indian Penal Code. In cases where after the injured had fallen down, the Appellant-accused did not inflict any further injury when he was in a helpless position, it may indicate that he had not acted in a cruel or unusual manner. This Court observed:

......... All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300 Indian Penal Code. After the injuries were inflicted and the injured had fallen down, the Appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position. It is proved that in the heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with bhala caused injuries at random and thus did not act in a cruel or unusual manner.

In Mahesh v. State of M.P. , (1996) 10 SCC 668, where the Appellant had assaulted the deceased in a sudden fight and after giving him one blow he had not caused any further injury to the deceased which fact situation was held by this Court to be sufficient to bring the case under Exception 4 to Section 300 of Indian Penal Code. This Court held:

.............. Thus, placed as the Appellant and the deceased were at the time of the occurrence, it appears to us that the Appellant assaulted the deceased in that sudden fight and after giving him one blow took to his heels. He did not cause any other injury to the deceased and therefore it cannot be said that he acted in any cruel or unusual manner. Admittedly, he did not assault P.W. 2 or P.W. 6 who were also present along with the deceased and who had also requested the Appellant not to allow his cattle to graze in the field of P.W. 1. This fortifies our belief that the assault on the deceased was made during a sudden quarrel without any premeditation. In this fact situation, we are of the opinion that Exception 4 to Section 300 Indian Penal Code is clearly attracted to the case of the Appellant and the offence of which the Appellant can be said to be guilty would squarely fall Under Section 304 (Part I) Indian Penal Code. ........

The law laid down in the aforesaid cases was considered and applied recently by this Court in the case reported in Ankush Shivaji Gaikwad v. State of Maharashtra , (2013) 6 SCC 770. In this case also, the Appellant-accused while passing on the field of the deceased on a spur of moment indulged in heated talk with the deceased which resulted in hitting a blow by the Appellant-accused to the deceased with the rod causing death of the deceased. Justice T.S. Thakur, speaking for the Bench, accepted the plea raised by the Appellant-accused and accordingly altered the sentence falling Under Section 304 Part II Indian Penal Code by giving him the benefit of Exception 4 of Section 300 Indian Penal Code. It was held by this Court as under:

"27. ........ we are of the opinion that the nature of the simple injury inflicted by the accused, the part of the body on which it was inflicted, the weapon used to inflict the same and the circumstances in which the injury was inflicted do not suggest that the Appellant had the intention to kill the deceased. All that can be said is that the Appellant had the knowledge that the injury inflicted by him was likely to cause the death of the deceased. The case would, therefore, more appropriately fall Under Section 304 Part II Indian Penal Code."

In the case of Jhaptu Ram Vs. State of Himachal Pradesh reported in , (2014) 12 Supreme Court Cases 410 Hon''ble the Apex Court in paragraph No. 7 has held as under:-

"7. ............. There is no iota of evidence to show that there was any prior intention of the Appellant to kill the deceased. As per the medical and ocular evidence, there was only gun shot fired by the Appellant which proved to be fatal for deceased. More so, the prosecution failed to marshal any evidence to show that the gun was in his hand when the deceased entered his house. In such peculiar facts and circumstances of the case, we agree with the submissions advanced by Shri Sreyas, learned Counsel for the Appellant."

In the case of Budhi Singh Vs. State of Himachal Pradesh reported in , (2012) 13 Supreme Court Cases 663, the facts were that the appellant gave two repeated blows on the head with a small axe, which resulted into the death of the deceased. In the circumstances in which the offence was committed, it was held that it was not premeditated and had taken place on the spur of moment and in this background, Hon''ble the Apex Court in paragraph No. 26 has held as under:-

"26. Thus, in the facts of the present case, a sudden and grave provocation took place which would bring the offence within the ambit of exception 1 of Section 300 Indian Penal Code and hence Under Section 304 Part I Indian Penal Code as the accused had caused such bodily injury to the deceased which, to his knowledge, was likely to cause death as he had inflicted injuries on the head of the deceased. Having held the accused guilty of an offence Under Section 304 Part I Indian Penal Code, we award the sentence of 10 years rigorous imprisonment and to a fine of Rs. 5,000/- in default thereto to undergo further imprisonment of six months."

In the case of Rampal Singh Vs. State of Uttar Pradesh reported in , (2012) 8 Supreme Court Cases 289, Hon''ble the Apex Court has considered the legal aspect as to when culpable homicide would amount to murder and when it would not amount to murder. Hon''ble the Apex Court has held in paragraph No. 22 as under:-

"22. Thus, where the act committed 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."

In the case of Jhaptu Ram (supra), the death was caused by firearm injury and Hon''ble the Apex Court in that background converted the offence from under Section 302 I.P.C. to Section 304 Part (I) I.P.C.

Keeping in view the facts of the instant case and the above-mentioned legal position, we are of the considered view that the incident had taken place on the spur of moment without any premeditation because of the filthy abuses hurled by the deceased to the appellant, therefore, the offence would fall within the purview of Section 304 Part (I) I.P.C. The trial court has observed in its judgment that it was the deceased himself who hurled filthy abuse and on this basis, learned trial court has acquitted appellant Ashish Sahu alias Aashu for the charge under Sections 504 and 506 I.P.C. But the trial court has not considered the point whether in such circumstances, the offence would fall under Section 302 I.P.C. or under Section 304 Part (I) I.P.C. So in our considered opinion, appellant Ashish Sahu alias Aashu had fired due to grave and sudden provocation because of the filthy abuses given by the deceased himself. So the offence would not travel beyond the purview of Section 304 Part (I) I.P.C. Therefore, the appeal of appellant Ashish Sahu alias Aashu deserves to be partly allowed.

The recovery of weapon of offence from the possession of appellant Ashish Sahu alias Aashu has already been disbelieved by the trial court and he has been acquitted of the charge under Section 25 of the Arms Act.

So far as appellants Bunti Sengar and Arvind Raj Tripathi are concerned, there is no dispute to the fact situation that during investigation, nomination of these two accused persons was found to be false, accordingly, charge sheet was not filed against them. It was only after recording of statement of P.W.-1 Ranvir Singh before the trial court an application under Section 319 Cr.P.C., was moved and under the orders of court, these two appellants were summoned to face trial. Admittedly Ajit Rajput was not named in the F.I.R. The complainant, in his cross-examination, has admitted that he also used to come to his house but he was not aware of his name. However, he was familiar with his face. There was not even a whisper in the F.I.R. that any other person, apart from three accused persons, also took part in this incident. P.W.-1 complainant Ranvir Singh has stated that he cannot say as to how much time, the accused and the deceased, has spent together at his house. He heard the noise of abuse for one-two minutes prior to the hearing of noise of firing. In cross-examination, he has stated that at the time of the incident, there were only two persons on the place of occurrence and within 2 to 4 minutes after the incident, several persons collected on the spot. Hearing the noise of shot, his wife and daughter also came on the spot. Thus the above quoted statement of this witness shows that at time of incident only two persons were there. This statement supports the finding of the investigation that it was appellant Ashish Sahu alias Aashu, who fired at the deceased and nomination of other two persons was rightly found to be false. The presence of two persons only at the time of incident, which has been admitted by the complainant himself, in his cross-examination gives strength to the case of these two appellants that the conclusion of investigation was correct. P.W.-4 Kuldeep Singh has also supported the case of the prosecution. He has stated that two fires took place on the place of occurrence; one fire was shot inside the house and other outside the house. This witness in his statement under Section 161 Cr.P.C. has not named these two appellants as the person, who has taken part in this incident. His statement recorded under Section 161 was duly contradicted and the Investigating Officer has also proved the said contradictions. Second Investigating Officer of this case has stated that during investigation, he came to know that the deceased had come to the place of occurrence from the place where celebrations were going on and this celebration was organized by Tau (elder brother of his father) of the deceased himself.

The complainant, of the instant case, has not mentioned the presence of any other person at the place of occurrence. However, he has admitted the presence of Jitendra Bajpai and Vikki Thakur as witnesses. But on this point, P.W.-4 Kuldeep Singh, has stated that on the place of occurrence, no unknown person was present and Vikki Thakur and Jitendra Bajpai are not known to him. He has stated that Ajit Rajput (acquitted accused) was standing behind Ashish Sahu alias Aashu while it has nowhere the evidence of complainant that any other person whether known or unknown person was standing behind Ashish Sahu alias Aashu. P.W.-4 kuldeep Singh has stated that he remained on the place of occurrence for about ten minutes. He is a well educated person and runs his own business. He has stated that deceased Sunny was caught hold by the other two persons for only half second. He has further stated that when he was caught hold by the persons then they were pulling each other and he could not say whether these persons were pulling the deceased or deceased was pulling those persons. So simply by catching hold only for half second, it cannot be presumed that any witness could have observed as to under what circumstances, they caught hold of the deceased. Keeping in view the background that the deceased was hurling filthy abuses to Ashish Sahu alias Aashu, the possibility cannot be ruled out that Bunti Sengar alias Arvind Raj Tripathi caught hold of the deceased to prevent any quarrel between the two and taking advantage of that position under grave and sudden provocation, Ashish Sahu alias Aashu fired on the deceased. Both these situation, make the case of Bunti Sengar and Arvind Raj Tripathi distinguishable from the case of Ashish Sahu alias Aashu. If we place reliance on the conclusion of the investigation wherein nomination of these two persons was found to be false and said conclusion gets strength from some of the statement mentioned in the earlier part of the judgment then their presence on the scene of occurrence becomes doubtful. On the other hand, even if, we hold that these persons were present on the scene of occurrence then keeping in view the aforementioned statement of P.W.-4 Kuldeep Singh Sirohi, in absence of any evidence on the point as to how the incident started, the possibility that they caught hold of the deceased only to prevent the quarrel of the deceased with Ashish Sahu alias Aashu cannot be ruled out. So it cannot be said that these two appellants, namely, Bunti Sengar and Arvind Raj Tripathi had shared any common intention with Ashish Sahu alias Aashu. The statement of P.W.-1 complainant Ranvir Singh in his cross-examination that at the time of incident only two persons were present assumes great important in this background because the presence of the deceased and the appellant cannot be ruled out. Therefore, in our considered opinion, appellants Bunti Sengar and Arvind Raj Tripathi become entitled for benefit of doubt and accordingly their appeal deserves to be allowed.

Now we come to the question of appropriate sentence to be inflicted on appellant Ashish Sahu alias Aashu. Since we have held that the offence committed by Ashish Sahu alias Aashu was under grave and sudden provocation, which took place because of hurling of filthy abuses by the deceased and no undue advance of the situation was taken by the appellant. So the offence would fall under Section 304 Part (I) I.P.C. In such circumstances, in almost cases relied upon by learned counsel for the appellant, Hon''ble the Apex Court has considered rigorous imprisonment for a period of ten years to be appropriate sentence. Taking into consideration the overall aspects of the matter, in our considered opinion, sentence of ten years rigorous imprisonment with fine of Rs. 50,000/- with default stipulation of one year rigorous imprisonment would be adequate sentence.

In view of the discussion made above, Criminal Appeal No. 981 of 2014 preferred by Bunti Sengar and Arvind Raj Tripathi deserves to be allowed and is hereby allowed. They are acquitted of the charges levelled against them. They are on bail. They need not surrender. Their bail is cancelled and sureties discharged.

Criminal Appeal No. 1216 of 2014 preferred by appellant Ashish Sahu alias Aashu deserves to be partly allowed and is hereby partly allowed. The conviction of the appellant Ashish Sahu alias Aashu is under Section 302 IPC is hereby modified to Section 304 part (I) IPC and his sentence for life imprisonment is modified with rigorous imprisonment for a period of ten years and with fine of Rs. 50,000/- with default stipulation of one year rigorous imprisonment. Appellant Ashish Sahu alias Aashu is in custody. He shall serve out his remaining part of sentence as modified by this Court.

Office is directed to certify this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.