Mala Ram vs State of Haryana

Swatanter Kumar, J.

Mala Ram accusedappellant has preferred this appeal being aggrieved from the judgment of conviction dated 1.9.1994 and order of sentence dated 2.9.1994 passed by the learned Addl. Sessions Judge, Hisar.

Upon registration of a case under Section 304 of Indian Penal Code and Section 27 of the Arms Act, 1959, in FIR No. 84 dated 28.12.1990, Mala Ram who was working as security guard, aged about 44 years, resident of village Gurera, Tehsil Siwani, District Hisar, was arrested and then challaned to face trial under Section 302 IPC and 27 of the Arms Act.

ASI Hardev Singh PW 2 had registered the case upon recording of statement of Prabhu Dayal PW 7. The accused along with his father Lekh Ram and Sumitra (wife of his elder brother) as well as his own wife Savitri had gone to village Chuli Bagrian to attend the Kirya ceremony of Mehar Chand, father of Prabhu Dayal. Mala Ram was carrying his single barrel .12 bore licensed gun with him on the date of occurrence. Other people were also present in the house of Prabhu Dayal and at about 3.00 p.m. the accused asked Radhe Ram son of Mehar Chand (now deceased in this case) that they should free the accused and other persons as they have to go back to their village at Gurera. After some time the accused again repeated and required Radhe Ram to free them, otherwise he would fire at them. Without any further loss of time Mala Ram fired from his single barrel .12 bore gun at Radhe Ram, which hit him on his right thigh. The blood started oozing from the resultant injury. Prabhu Dayal, Maru Ram and Gopal who were present at the spot, removed Radhe Ram in a car to Civil Hospital, Fatehabad, where he is stated to have succumbed to his injury at 5.00 p.m. on the same day. Prior to the death of the deceased, ruqqa Ex. PA was also sent to the police station by the medical officer with regard to admission of the deceased in the hospital. Upon receipt of the said ruqqa PW 1 ASI Wazir Singh had come to the Civil Hospital and moved an application Ex. P.1 for opinion of the doctor regarding the fitness of Radhe Ram to make a statement. As per the endorsement of the medical officer Ex. PB/1, the deceased was found unfit to make any statement. PW 9 SI Ram Chander had also reached in the hospital from the police station Bhattu Kalan as per the wireless message Ex. PJ. SI Ram Chander who was SHO of the concerned police station took over the investigation Ruqqa Ex. PF regarding the death of Radhe Ram was also received by him at about 5.10 p.m. on the same day i.e. 28.10.1990. The investigating officer met Prabhu Dayal, younger brother of the deceased and recorded his statement Ex. PC which was duly signed by the complainant. On the basis of the ruqqas aforestated and the statement of Prabhu Dayal sent through constable Subhash Chander, FIR Ex. PC/1 was recorded by ASI Hardev Singh, under Section 304 IPC. Inquest proceedings Ex. PH were recorded by the investigating officer on the following day i.e. 29.12.1990. The body of Radhe Ram was subjected to postmortem. The investigating officer prepared the site plan Ex. PL with marginal notes in his hand. SI Ram Chander was transferred from Police Station Bhattu Kalan and the investigation of the case was taken over by SI Dalbir Singh on 3.1.1991. He recorded the statements of witnesses. Mala Ram came to the police station with gun Ex. P.6. The gun and empty cartridge were sealed separately and taken into possession vide recovery memo Ex. PN duly attested by the two witnesses Subhash and Gopal. Mala Ram was having the licence for this gun which was produced as Ex. P.7 and was taken into possession vide the same recovery memo. The investigating officer recorded the statements of various witnesses and upon completion of other formalities presented the challan in Court. The accused was committed to the Court of Sessions by Judicial Magistrate, Ist Class, Fatehabad vide order dated 30.4.1991.

The Court of Sessions charged the appellant Mala Ram under Section 302 of Indian Penal Code and Section 27 of the Arms Act, 1959 on 25.5.1994. The accused pleaded not guilty and consequently faced the complete trial which resulted in his conviction as per the impugned judgment.

To prove its case the prosecution examined 11 witnesses i.e. PW 1 to PW 11 but the material witnesses are PW 6 Dr. P.L. Verma, Medical Officer, who had attended upon the deceased and had prepared the postmortem report Ex. P.1. The cause of death of Radhe Ram was stated to be due to shock and haemorrhage as a result of firearm injury in the inguinal region of the deceased. The injury was opined to be antemortem and was sufficient to cause death in ordinary course of nature. PW 7 Prabhu Dayal is the complainant and eye witness while Maru Ram PW 8 is the other eye witness examined on behalf of the prosecution. PW 9 to PW 10 are the investigating officers and PW 11 was the draftsman who had prepared the site plan EX. P.O.

The accused was put all the incriminating evidence against him in his statement under Section 313 Cr.P.C. and in answer to question No. 21 of the said statement, he had taken a definite stand of selfdefence, discussion on which we would revert to shortly. The accused claimed to have suffered injuries while he was badly beaten by Prabhu Dayal, Maru Ram, Radhe Ram, Gopal, Hans Raj and Manglu Ram and pleaded ignorance as to who had fired and caused the fire arm injury to Radhe Ram. According to him the police had recovered the gun from his house.

The accused led defence evidence by examining Dr. Mohinder Kumar Gupta as DW 1 who had treated him as outdoor patient, DW 2 Dr. Varun Kawatra who had treated him for injury and DW 3 Lekh Ram, his father. DW 4 Dr. Kanwal Gupta, who was cited as a witness was not examined and was given up by the accused.

After closure of the defence evidence and hearing the learned counsel for the parties at length, the learned Addl. Sessions Judge, Hisar, after discussing the evidence in great detail, passed the order of conviction. The learned trial Court found that Mala Ram accused was guilty of an offence under Section 304 IPC and Section 27 of the Arms Act and was not liable to be punished for an offence under Section 302 IPC. Consequently, the learned trial Court awarded life sentence to the accused and also imposed a fine of Rs. 500/ and in default to undergo further rigorous imprisonment for one year under Section 304 IPC and to undergo rigorous imprisonment for two years for the offence under Section 27 of the Arms Act. Both the sentences were directed to run concurrently.

The learned counsel appearing for the accused as well as the State conceded before us that there is hardly any dispute to the occurrence in question in the present case and also to the fact that Radhe Ram, the deceased, died as a result of fire arm injury which had been fired from a single barrel gun which was licensed gun of Mala Ram. There is sufficient evidence, documentary and otherwise, which proves the case of the prosecution on these two aspects beyond any reasonable doubt. Ballistic expert''s report, Forensic Science Laboratory report, postmortem report, statements of PW 7, PW 8 and the investigating officer, leave no doubt in our mind that these two aspects of the matter which otherwise are conceded, have been fully established on record.

In view of what has been stated above, the limited question that falls for consideration before us can be summed up as under :

(i) Who fired at Radhe Ram at about 3.00 p.m. when admittedly Mala Ram and his father Lekh Ram were present at the house of Parbhu Dayal and deceased at the Kirya ceremony of Mehar Chand, their father ?

(ii) Whether the accused had been able to establish the plea of selfdefence ?

(iii) If the prosecution had proved its case even as aforestated, whether the offence is one which falls under PartI or PartII of Section 304 IPC ?

As we propose to deal with the first two questions together i.e. who gave firearm injury to the deceased and whether the plea of selfdefence is available to the accused in the facts and circumstances of the present case, it becomes necessary for us to refer to the evidence on record. Two eye witnesses PW 7 Prabhu Dayal and PW 8 Maru Ram have deposed the entire occurrence and according to them it was accused Mala Ram who had fired from the licensed gun and not Lekh Ram his father. Both these eye witnesses are consistent in their stands and nothing material has come on record in their crossexamination. According to Prabhu Dayal at about 3.00 p.m. Mala Ram had asked that they should be freed earlier and on the second time when he repeated the same, he also added that he would fire at them. We have read the vernacular statement of these witnesses where it is clearly stated :

"Un Per Fire Kar Dunga".

After saying this Mala Ram is stated to have fired from his licensed single barrel .12 bore gun which hit the deceased on his thigh. Mala Ram fired from a very close distance. In the crossexamination the suggestion put to the witness is that Prabhu Dayal had some dispute of land with his brother Radhe Ram in the year 1990 and there was fight between them and Mala Ram had got the dispute settled. Part of the suggestion with regard to dispute of land was admitted, while it was specifically denied that Mala Ram had come to the village and he had got the dispute settled. Another suggestion put to this witness which would indicate the stand of the accused is that Prabhu Dayal, Radhe Ram etc. had severally beaten accused Mala Ram and his father Lekh Ram and Lekh Ram fired at the deceased Radhe Ram.

As already noticed no dent had been created in the case of the prosecution while both these witnesses were crossexamined at length by the accused. The version given by the prosecution is further supported and the entire chain of this case has been well linked in the statement of investigating officer Ram Chander. The deceased had expired in the hospital. 18 pellets exhibited as Ex. P/4 were recovered from the body of the deceased. The report of Forensic Science Laboratory Ex. PP/1 has specifically confirmed that the armed injury was caused by the single barrel .12 bore licensed gun which belonged to the accused. Dr. N. Chakarwarti, Medical Officer, Government Hospital, Fatehabad, had admitted Radhe Ram deceased in serious condition and had sent ruqqa to the police station. He also declared the deceased unfit to make a statement. Endorsement to this effect is Ex. PB/1 on the application Ex. PB. He has stated that Radhe Ram was brought to Civil Hospital by Prabhu Dayal and there were even other persons. Post mortem report Ex. P/1 was proved by DW 6 which fully corroborates the story of the prosecution.

In the present case in fact even the defence has admitted that accused was present and also that he was carrying his licensed gun. The statement of the accused under Section 313 Cr.P.C. was recorded on 23.4.1992 in which the accused while admitting his presence at the place of occurrence and referring to the land dispute between the family of the deceased and his effort to compromise the matter was stated. However, he specifically showed ignorance as to who had caused the firearm injury to Radhe Ram deceased. He admits that recovery of the gun was effected from him but from his house at village Chuli Bagrian.

Lekh Ram father of the deceased was examined as DW 3 and he gives a different story. According to this witness Radhe Ram armed with lathi, Prabhu armed with knife and 34 other persons armed with Dandas were giving beating with their respective weapons to Mala Ram accused and he fell down unconscious. At this Lekh Ram claims to have gone for the protection of his son. As these persons wielded their weapons in order to attack Lekh Ram, he fired from the gun at Radhe Ram to save himself and his son.

It is argued on behalf of the defence that PW 7 and PW 8 are interested witnesses being relations of the deceased. They were not present at the place of occurrence and their statements cannot be relied upon in the present case.

From the evidence oral as well as documentary it has come on record that the prosecution has been able to bring home guilt of the accused and the defence put forward by the accused suffers from serious contradictions in the statements of the defence witnesses. We shall shortly proceed to discuss them in detail. The statements of the two eyewitnesses PW 7 and PW 8 are fully supported by linking evidence and the statement of the investigating officer. The mere fact that the prosecution had given up other eyewitnesses Sohan Lal, Gopal and material witness Head Constable Subhash, by itself cannot prove fatal to the case of the prosecution. Giving up of these witnesses does not indicate any falsity in the case of the prosecution.

It is well settled principle of criminal jurisprudence that statement of a witness who may be relation of the victim or an interested witness cannot be disregarded or rejected for that reason alone. If the statement of such a witness is consistent with the case of the prosecution and is corroborated by other evidence, such statement has to be given its due weightage. The statements of the two eyewitnesses in the present case fully meet the requirements of this principle. The presence of the two eyewitnesses, to our mind, was but natural at the place of occurrence because it was Kirya ceremony of father of one of the witnesses and uncle of the other, on the fateful day. The statements of these witnesses taken in conjunction with the other evidence on record do not create any doubt in our mind about the truthfulness of these witnesses. We have no hesitation in holding that it was Mala Ram who had fired at the deceased. Another factor which supports this view is that PW 7 and PW 8 admittedly had no animosity with Mala Ram and even father of Mala Ram was also in relation to them and there could be no justification for not naming Lekh Ram who claims to have fired at the deceased rather than his son Mala Ram accused in the present case.

Necessary corollary to the aforestated discussion on prosecution case is the discussion on the defence put forward by the accused before the Court. The accused was examined in his statement under Section 313 Cr.P.C. We consider it appropriate to refer to the relevant portion of his statement on the strength of which the accused intended to frustrate the case of the prosecution and create a doubt. Answer to question No. 21 is the relevant portion which reads as under :

"I am innocent. I had gone to the house of Parbhu Dayal in connection with condolences on account of the death of his father. Parbhu Ram had enmity with other brothers. About six months prior to the death of Mehar Chand, father of Parbhu, a dispute had taken place between brothers over the partition of the land. Parbhu Ram summoned me and further took me there and I helped the brothers to partition the land and settle the matter. Two Killas of land was retained by Mehar Chand. Parbhu Ram, Radhey Ram and other brothers stated on the day when we had gone there for condolences that remaining three Killas of land be also got partitioned by me but I suggested that as it was a day of condolences, partition can be effected after some time or after about a month. They had taken liquor. I was given beatings by Parbhu Ram, Maru Ram, Radhe Ram, Gopal, Hans Raj, Mangla Ram. Knife blow was given in my eyes. Lathi and Jaili blows were given on my head. I had become unconscious. Police removed me from the spot to Civil Hospital, Bhattu. I was sent by the Medical Officer, Bhattu to Civil Hospital, Hisar on 28.12.1990 in the evening, and was discharged from there on 7.1.1991. On 8.1.1991 police went to my house. I showed my medical papers to the police. Police returned from there. On 9.1.1991 police again went to my house. Again they returned without arresting me. On 10.1.1991 I was taken by the police with the assurance that I would be got treated at Hisar. My gun was recovered and taken away by the police from village Chuli Bagrian. I was arrested by the police, I do not know who had caused firearm injuries to Radhe Ram."

In order to substantiate his plea, the accused examined three witnesses in his defence, i.e. DW 1 Dr. Mohinder Kumar Gupta, Medical Officer, Community Health Centre, Bhattu Kalan, DW 2 Dr. Varun Kawatra, Medical Officer, General Hospital, Hisar and DW 3 Lekh Ram, his father. The statement of DW 1 not only creates a doubt in the defence of the accused being considered as probable but lends some kind of support to the prosecution. The accused is stated to have gone to the hospital of Bhattu Kalan on 28.12.1990. The doctor is unable to identify Mala Ram accused as he was treated as outdoor patient. There was an injury on the head of the accused which was stitched by this doctor. According to this doctor no medicolegal report of Mala Ram was prepared because he did not want it to be done. The doctor had brought the OPD Register which, for the reasons best known to the defence, was not produced on record nor a copy of the entry was placed on record. It has not been stated in the statement of this witness as to what time on 28.12.1990 the accused had come to the hospital. What is more damaging to the accused is that according to DW 1 accused was not in his full senses because of intoxication and he did not record his statement because the accused himself declined for the medical examination. The witness further admits in his crossexamination that the injury on the person of Mala Ram could be caused by a fall on a stone or hard surface.

According to DW 2, the other doctor, the injury could be caused by a blunt weapon and not with the sharp edged weapon. DW 2 also admitted in his crossexamination that injuries suffered by Mala Ram could be caused due to fall on the hard surface while one is in a drunkard condition.

DW 3 has deposed entirely a different version than the one put forward by the accused in his statement under Section 313 Cr.P.C. According to this witness Radhe Ram, Parbhu and 34 other persons had given number of injuries to his son Mala Ram who had fallen down on the ground being unconscious and as he went to rescue his son, the aforestated persons wielded their weapons to attack him and as such he had fired at the deceased. Then he fired with the gun with him to save herself and his son. In his crossexamination he has submitted that Parbhu Dayal and Radhe Ram inflicted 5060 injuries on the person of Mala Ram and 1520 knife injuries had been caused to Mala Ram. If DW 3 is to be believed then we are unable to see the reason as to why accused declined to get his medicolegal report prepared by the doctor to whom he had gone, which could well establish his case. According to the doctors who have been examined as defence witnesses only one injury was found on the person of the accused. The accused was found in a drunken condition and it was stated by both the doctors that injury suffered by the accused could be caused by fall on a stone or a hard surface in a drunk condition.

The principles governing the appreciation of defence evidence in a criminal trial and its effect upon the case of the prosecution have been well defined and well explained by the Hon''ble Supreme Court of India in the case of Vijayee Singh and others v. State of U.P., AIR 1990 Supreme Court 1459, in the following manner :

"The general burden of establishing the guilt of accused is always on the prosecution and it never shifts. Even in respect of the cases covered by Section 105 the prosecution is not absolved of its duty of discharging the burden. The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining in the case. He may adduce the evidence in support of his plea directly or rely on the prosecution case itself or, he can indirectly introduce such circumstances by way of crossexamination and also rely on the probabilities and the other circumstances. Then the initial presumption against the accused regarding the nonexistence of the circumstances in favour of his plea gets displaced and on an examination of the material if a reasonable doubt arises the benefit of it should go to the accused. The accused can also discharge the burden under Section 105 by preponderance of probabilities in favour of his plea."

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"The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. Section 105 places ''burden of proof'' on the accused in the first part and in the second part we find a presumption which the Court can draw regarding the absence of the circumstances which presumption is always rebuttable. Therefore, taking the Section as a whole the ''burden of proof'' and the presumption have to be considered together. It is axiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises. But where the accused introduces material to displace the presumption which may affect the prosecution case or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecution failed to prove its own case beyond reasonable doubt. The initial obligatory presumption that the Court shall presume the absence of such circumstances gets lifted when a plea of exception is raised. More so when there are circumstances on the record (gathered from the prosecution evidence, chief and crossexaminations, probabilities and circumstances, if any, introduced by the accused, either by adducing evidence or otherwise) creating a reasonable doubt about the existence of the ingredients of the offence. In case of such a reasonable doubt, the Court has to give the benefit of the same to the accused. The accused may also show on the basis of the material a preponderance of probability in favour of his plea. If there are absolutely no circumstances at all in favour of the existence of such an exception, then the rest of the enquiry does not arise in spite of a mere plea being raised. But if the accused succeeds in creating a reasonable doubt or shows preponderance of probability in favour of his plea, the obligation on his part under Section 105 gets discharged and he would be entitled to an acquittal."

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"The ''reasonable doubt'' is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words ''proved''. ''disproved'' and ''not proved'' lays down the standard of proof, namely, about the existence or nonexistence of the circumstances from the point of view of a prudent man. The Section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, ''believe it to exist'' and secondly in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The Act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the Court believes that it does not exist or considers its nonexistence so probable in the view of a prudent man, and now we come to the third stage where in the view of a prudent man the fact is not proved i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by ''a prudent man''.

There is a difference between a flimsy or fantastic plea which is to be rejected altogether. But a reasonable though incompletely proved plea which casts a genuine doubt on the prosecution version indirectly succeeds."

Taking the entire evidence led in defence by the accused and even giving the benefit to the accused of explaining his conduct under Section 313 of the Code, we are unable to hold that the defence put forward by the accused has been reasonably proved or even raises a doubt in the case of the prosecution on the basis of preponderance of probabilities which could be accepted by a reasonable and prudent analysis. In fact the defence put forward and read in its entirety is not free of being a situation created only to raise a defence of complete falsity. No evidence, documentary or ocular, has been brought on record which can bring the case of the defence within the wide spectrum laid down by the Hon''ble Supreme Court of India in the case of Vijayee Singh (supra). The bail application which was filed by the accused in fact had stated that the accused had fired a gun shot. This certainly cannot be treated as a piece of substantive evidence available on record, but can definitely be looked into by the Court for restricted and relevant purpose. This was so expressed in the case of Satya Vir v. The State, 1958 Crl. L.J. 1266. Thus the defence witnesses have put forward three conflicting and divergent stands or stories and these versions cannot be reconciled in the facts of the present case. The conduct of the accused Mala Ram as per his own witnesses is one which cannot be accepted as a normal human conduct in the facts and circumstances of the case. Best evidence available to the defence was not produced on record and this clearly indicates exclusion of the principle of probability and preponderance being available to the defence for casting a shadow of doubt on the case of the prosecution entitling the accused ot any benefit. We, therefore, find that the principle of self defence is entirely unbelievable and suffers from inbuilt contradictions and discrepancies and is entirely an improbable defence put forward by the accused.

Lastly we have to consider the plea raised by learned counsel for the appellantaccused that even if the prosecution has proved its case, the offence is one which squarely falls under Section 304 PartII of Indian Penal Code and does not satisfy the basic ingredients of an offence under Section 304 PartI of the Code. In order to appreciate this condition it will be proper to refer to Section 304 IPC at this stage.

"304. Punishment for culpable homicide not amounting to murder :

Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;

or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."

From the language of the section it is clear that there is a settled but fine distinction which is to be seen while considering the facts and circumstances of a case to hold whether the offence falls under PartI or PartII of this Section. While under PartI culpable homicide not amounting to murder is punishable with imprisonment for life or which may extend to 10 years and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death. While a culpable homicide not amounting to murder under Part II is punishable with an imprisonment which may extend to 10 years or with fine or with both if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or cause such bodily injury as is likely to cause death. Thus the underlying feature or ingredient creating a distinction as to which part of this section is attracted in a given case, is primarily determined by the intention of an accused while committing the offence. In the event it lacks the intention to kill while the entire evidence is looked into then it is difficult to say that an accused can be punished under Section 304 PartI of the Code. But once the intention to cause the death can be read from the record by a plausible evidence indicating the guilt of the accused beyond reasonable doubt, it would change the complexion in regard to the punishment to be inflicted upon an accused. This obviously would have to depend upon the facts and circumstances of the case and it may not be possible to lay down a hard and fast rule in this regard.

Hon''ble Supreme Court of India in the famous case of State of Andhra Pradesh v. Rayavarapu Punnayya and another, AIR 1977 Supreme Court 45 with great elaboration specified the basic ingredients of this provision and classified the kind of cases which are likely to fall under these provisions and with complete distinction. It may be appropriate to refer to some parts of the judgment as under :

"The ''intention to cause death'' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender''s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause."

"If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death the offence will not be murder, even if the injury which caused the death, was intentionally given."

"Whenever a court is confronted with the question whether the offence, is ''murder'' or ''culpable homicide not amounting to murder'' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299."

"If the answer to this question is in the negative the offence would be ''culpable homicide not amounting to murder'', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third Clause of Section 299 is applicable."

These basic principles have been applied by the Hon''ble Supreme Court of India consistently and with affirmation. In the case of Hem Raj v. The State (Delhi Administration), JT 1990(3) SC 586 where the appellant had given a knife injury on the chest of the deceased, though without any pre meditation and was a result of sudden quarrel, Hon''ble Supreme Court held as under :

"The question is whether the appellant could be said to have caused that particular injury with the intention of causing death of the deceased. As the totality of the established facts and circumstances do show that the occurrence had happened most unexpectedly in a sudden quarrel and without premeditation during the course of which the appellant caused a solitary injury, he could not be imputed with the intention to cause death of the deceased or with the intention to cause that particular fatal injury; but he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. Because in the absence of any positive proof that the appellant caused the death of the deceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course of nature was sufficient to cause death, neither Clause I nor Clause III of Section 300 IPC will be attracted. We are supported in this view by a series of decisions of this Court, namely, (1) Jagrup Singh v. State of Haryana, 1981(3) SCC 616, (2) Kulwant Rai v. State of Punjab, 1981(4) SCC 245, (3) Randhir Singh v. State of Punjab, 1981(4) SCC 474, (4) Gurmail Singh and others v. State of Punjab, 1982(3) SCC 184, and (5) Jagtar Singh v. State of Punjab, 1983(2) SCC 342. Following the ratio of the aforementioned decisions, we hold in the present case that the offence committed by the appellant is the one punishable under Section 304 PartII IPC but not under Section 302 IPC."

Similar view was expressed by the Hon''ble Supreme Court of India in the case of Patel Rasiklal Becharbhai and others v. State of Gujarat, AIR 1992 Supreme Court 1150. The Court held as under :

"The deceased rebuked A.3 which infuriated him and he gave a blow on the deceased but unfortunately it landed on the neck of the deceased. The medical evidence also shows that he did not cause any injury to any vital organ and there is no fracture of the internal bones. The external cartoid artery and external jugular vein got injured and that resulted in profuse bleeding. We do not propose to say that such an injury, if caused, would not attract the provisions of Section 302 IPC but circumstances which are peculiar to the facts of this case would show that there is a reasonable doubt whether the accused intended to cause that particular injury in which case the offence is one punishable under Section 304 PartII IPC, since the accused must be attributed knowledge that he was likely to cause the death. We accordingly set aside the conviction of the appellant (Accused No. 3) under Section 302 IPC and the sentence of imprisonment for life. Instead we convict him under Section 304, PartII, IPC and sentence him to undergo 7 years Rigorous Imprisonment."

In the case of Gurdeep Singh v. Jaswant Singh and others, JT 1992(2) SC 123, emphasizing the importance of lack of intention to kill while converting the conviction of the accused from Section 302 IPC to Section 302 PartII IPC, the Supreme Court held as under :

"We have heard learned counsel for parties at length and have been taken through the findings and relevant evidence. We agree with learned counsel for appellant that on the findings recorded by the High Court and in peculiar facts and circumstances of this case accused No. 1, i.e. Jaswant Singh having had no intention to cause death of Kesar Singh he could be attributed only with the knowledge that the injury caused by him was likely to cause death. Therefore, on the ratio laid down by this Court in Tholan v. State of Tamil Nadu, AIR 1984 SC 759 it appears appropriate to convict him under Section 304 PartII."

In the case titled as Jagpati v. State of Madhya Pradesh, AIR 1993 Supreme Court 1360, again emphasizing the abovestated principles of the accused having no intention to cause a particular injury which would be sufficient to cause death, the Supreme Court held as under :

"From the facts stated above it is clear that Ram Krishna had absolutely no immediate motive and even the appellant, Jagpati also because of the trivial quarrel that took place went and beat the deceased. Under these circumstances, we find it difficult to hold that these two accused intended to cause that particular injury which was sufficient in the ordinary course of nature to cause death."

It will be appropriate to make a reference to the Division Bench judgment of this Court where the facts are quite similar to the present case. In the case of Bhambar v. State of Punjab, 1995(3) R.C.R. 420, where the accused had caused iron chain injury on the deceased on a vital part near the ear and on evidence the Court came to the conclusion that there was no intention to cause death and offence was converted from Section 302 IPC to Section 304 PartII IPC. In the case of Rajinder Singh v. State of Haryana, 1994(2) RCR 68 the accused had given one blow on the head of the deceased which proved fatal. Because of lack of intention the offence was converted from Section 302 IPC to Section 304 PartII IPC.

In a very recent judgment Hon''ble Supreme Court of India in the case of Sarup Singh v. State of Haryana, AIR 1995 Supreme Court 2452, where the accused had given one single hammer blow on the head of the deceased, which is a vital part of the body, had knowledge, but no intention, that injury would cause death of the deceased, the trial court convicted the accused for offence under Section 302 IPC, while the Court held as under :

"Keeping in view this medical evidence and the established facts and circumstances of the case on the record, we are of the opinion that the appellant can be clothed with the knowledge that the injury that he was causing to Jai Karan, with a hammer, on his head, a vital part of the body, was likely to cause his death, though without any intention to cause death or such injury as was likely to cause his death. He gave a single blow on the head of the deceased. The offence would, therefore, squarely fall under Section 304 PartII IPC. We, accordingly, hold him guilty of the said offence and convict him accordingly."

The underlying principle of the various judgments afore cited thus makes it clear that it is the intention to cause death which would primarily be the consideration for determining whether the offence committed by the accused would fall under Section 304 PartI or 304 PartII IPC. The accused must have an intention to cause death or to cause a bodily injury which is likely to cause death. Absence of these ingredients i.e. the accused having intention to cause death, would bring the offence outside the ambit of PartI of this Section. This distinction is fine but real and if overlooked can result in miscarriage of justice.

The grievousness of the injury inflicted upon the deceased, the weapon used for causing such an injury, the facts leading to the occurrence coupled with the entire evidence placed on record would ultimately determine as to which one of the two parts of Section 304 IPC is attracted in a case. The expression ''causing such bodily injury as is likely to cause death'' in again a matter which must be gathered and adjudged from the entire evidence on record. It will be the oral, documentary and circumstantial evidence read in its entirety that should indicate towards a definite intention on the part of the accused i.e. intention to kill which would be, amongst others, basic factor to weigh with the Court for taking any decision in the case of the present kind.

Now we revert to discuss the evidence in the present case, so as to squarely apply the aforestated principles of law to the facts of the present case. Both the eyewitnesses PW 7 and PW 8 have specifically stated in their examinationinchief that there was no enmity between the parties, that is to say that the accused had no animosity towards the family of the deceased. On the contrary their relations were cordial which is even supported from the fact that admittedly the accused had come to attend the Kirya ceremony of the father of the deceased. Reference has been made further to the fact that the accused had said in general that he would fire at them. This sentence as described by the eye witnesses does not indicate any motive or intention on the part of the accused to kill any individual or a particular person. The statements of the two eye witnesses coupled with the medical evidence, which has come on record that if the deceased was given effective and proper medical treatment, he might have been saved. PW 7 has specifically stated on record that if the deceased would have been saved, they might not have even registered an FIR. The nature of the injury is that the accused fired one gun shot at the spur of the moment without any intention to kill somebody in particular or even to cause an injury with the knowledge that it should result in the death of a particular person and the injury was admittedly given as per the medical evidence on nonvital part of the body i.e. thigh. According to PW 7 the accused is alleged to have stated to this witness "he again repeated by saying that they should be freed earlier otherwise he would fire at them". (We have checked the vernacular statement of the witness and find that the trial Court has not correctly recorded the words ''fire at him''. In fact it should be ''fire at them''.).

The prosecution evidence does show that there was no intention on the part of the accused to kill anybody. From the evidence on record keeping in mind that it was the day of Kirya ceremony of late Mehar Chand and more particularly the statements of PW 7 and PW 8, it appears to us that intention of the accused was more to create a scare or fear rather than to kill any particular person. All that the accused had desired was that he and his family members should be released earlier. No motive, lack of intention to kill any particular person, there being no animosity between the parties and no predetermined mind to commit an offence, seen in the background of the admitted fact that relations between the parties were cordial, we find it very difficult to hold that there was intention on the part of the accused to kill the deceased. The entire evidence taken together and read in its correct perspective does not indicate any mens rea or intention on the part of the accused to kill anybody. We are unable to trace such an intention from any evidence or material on record based on any logical analysis of this case. However, as already noticed that the death of the deceased was caused as a result of firearm injury caused by the accused, we find that the accused is liable to be convicted under Section 304 PartII IPC, and not under Section 304 PartI IPC. While converting the offence into Section 304 PartII from 304 PartI IPC, as held by the trial Court, we maintain the conviction of the accused under Section 27 of the Arms Act. In regard to the findings given by the learned trial Court that the accused is proved to have used his gun for unlawful purpose for committing the culpable homicide not amounting to murder and not with the intention to kill Radhe Ram deceased, we concur with the reasoning given by the trial Court.

Consequently, the appeal is partly allowed. While convicting the appellant for an offence under Section 304 PartII IPC and Section 27 of the Arms Act, 1959 we direct the appellant to undergo rigorous imprisonment for the respective offences in the following manner :

(i) Under Section 304 PartII IPC : Rigorous imprisonment for seven years and also to pay a fine of Rs. 10,000/ and in default of payment of fine to undergo further rigorous imprisonment for a period of six months. The fine, if recovered, shall be paid to the widow and children of the deceased.

(ii) Under Section 27 of the Arms Act, 1959 : Rigorous imprisonment of two years, as awarded by the trial Court.

It is directed that both the sentences shall run concurrently.