Tej Singh vs The State

Uma Nath Singh, J.—This Criminal Appeal arises out of a judgment dated 09.08.2007 passed by learned Additional Sessions Judge, Court No. 2, Unnao, in Sessions Trial No. 307 of 2006 u/s 302 and 307 IPC and Section 30 of the Arms Act recording conviction of appellant on all three counts and sentencing him to undergo imprisonment for life with a fine of Rs. 2,000/- on first count; RI for seven years with a fine of Rs. 1,000/- on second count, and only a fine of Rs. 1,000/- on third count (Section 30 Arms Act).

Prosecution case in brief is that complainant Rudra Pratap Singh lodged a report at Police Station Bihar, Unnao, on 23.04.2006 that 3-4 days prior to the date of incident (22-04-2006), his cousin Tej Singh son of Ram Autar Singh had cut their wheat crop forcibly, and in order to resolve the dispute, Pradum Kumar, Rajendra Singh, Ram Pratap Singh, Udai Pratap Singh, Shiv Poojan Singh and the complainant himself, had gathered in the court yard of house of accused Tej Singh and were discussing the matter with him. All of sudden accused Tej Singh started abusing them, and at about 10.30 in the night, rushed into a room of the house. The complainant and others also followed him to the room. The moment Tej Singh entered the room, he picked up his gun and fired at Ram Pratap. At that moment, deceased Udai Pratap, brother of the complainant and witness Ram Pratap, came on the front and received the gunshot injury. Witness Ram Pratap also received pellet injuries from the gunshot. Thus, his brother Udai Pratap and Ram Pratap received pellets injuries from the gunshot fired by accused Tej Singh. At that time an emergency light was on in the house, and his family members carried the injured to District Hospital Unnao, and later on, he received a telephonic message that during the treatment in District Hospital, Unnao, the doctors declared his brother Udai Pratap brought dead. After receiving that information, the complainant went to Police Station Bihar and submitted a written report. However, out of shock and nervousness, having heard the news of death of his brother Udai Pratap, he forgot to mention some more facts.

Pursuant to the FIR lodged by Rudra Pratap Singh (PW-1), necessary investigations were carried out by the police. Inquest of the dead body was prepared vide Ex. Ka-7, which is proved by S.I. Ranjeet Singh (PW-6), who carried out the investigation. Post Mortem of the dead body was conducted vide Ka-2 (Post Mortem Report), by Medical Officer on post mortem duty, Dr. P.N. Ahirwar (PW-3), has proved the report. Vide Ex. Ka-22, Serologist''s report on incriminating materials, collected during investigation and sent for examination, was placed on record by the prosecution. On completion of investigation, finally charge sheets were filed by the Investigating Officer against the accused-appellant u/s 302/307 IPC and also u/s 30 of the Arms Act.. The Chief Judicial Magistrate thereafter committed the case to the Court of Sessions Judge for trial. Sessions trial was assigned to Additional Sessions Judge, Court No. 2, Unnao, who charged the accused-appellant on two counts, namely, u/s 302 IPC for committing murder of deceased Udai Pratap by a gunshot and u/s 307 IPC for causing pellets injuries to injured witness Ram Pratap in an attempt to commit his murder apart from the one u/s 30 of the Arms Act..

During the course of trial, the prosecution examined as many as eight witnesses whereas the defence produced two. Learned Trial Court on appreciation of prosecution evidence held the accused-appellant guilty of charges as aforesaid.

We have heard learned Counsel for parties and perused the trial court''s records.

Learned Counsel for appellant Shri Nagendra Mohan submitted that admittedly the incident took place inside the house of accused and if the wheat crop had been cut 3-4 days prior to the date of occurrence, then there was no occasion for the complainant side to have gathered in the house of appellant in the night by scaling the wall and climbing the stair-case. Learned Counsel also submitted that in the site plan Ka- 13 drawn by Investigating Officer it is shown that the houses of the complainant and the accused are adjoining. There was a verandah towards the side wall of the complainant, then a courtyard and thereafter the room where the incident took place. Learned Counsel also submitted that the accused-appellant had submitted the revenue record called ''khatauni'' to establish that the family partition had taken place much before the date of occurrence and the disputed wheat crop only belonged to him as the land in question had been purchased by his father. Learned Counsel also submitted that for the sake of arguments even if it is accepted that the land with wheat crop was in joint ownership, then since the crop had been usurped by the appellant 3-4 days back, the complainant side should not have come to his house with as many as 8-10 members. It is also submitted that if the accused-appellant had fired a single gunshot, it was not possible to receive tattooing marks on the toe of deceased causing its severance. It was also not probable that with the single gunshot fired by the appellant, injured Ram Pratap would have received the injuries with blackening and tattooing marks when he was standing behind the deceased. Learned Counsel further submitted that there was no reason as to why the injured should have travelled a distance of 40 miles to reach Unnao from the scene of occurrence if a Primary Health Center was available at a shorter distance from the place of incident. Further if the accused had rushed into his bedroom then the complainant side should have exercised restraint and not followed him, moreso, when the accused- appellant had not uttered any word so as to cause apprehension of dangers in the mind of members of the complainant side. Thus, the complainant side had no other motive to follow the accused-appellant except to cause him assaults.

Learned Counsel further submitted that after the toe of deceased was chopped off, the prosecution developed a new story to establish that when the accused was about to fire, the deceased tried to hit the barrel of gun with leg and in the process suffered the fatal injury from the point blank range. Thus, the prosecution case of firing a gunshot from his licensed gun by the appellant does not appear to be believeable and it stands belied.

On the other hand, learned State counsel submitted that as per prosecution evidence, particularly the testimony of complainant Rudra Pratap Singh, injured witness Ram Pratap Singh is a practising lawyer at Unnow and thus only after the Court hours he came to his house in the village and collected all the family members in the house of the appellant for the settlement of dispute on account of cutting of the wheat crop. In the process of settlement, the accused appellant all of sudden got enraged and lost tempers and started hurling abuses. He rushed into the bedroom from courtyard, where an emergency light was on, to pick up his licensed gun for firing at the complainant''s side. Apprehending the happening of an untoward incident, the members of complainant side also followed him so as to prevent firing from the gun. The moment, the accused appellant pointed his gun towards witness Ram Pratap Singh, his younger brother Udai Pratap came on front and tried to hit the gun with his leg. But before he could do so, the accused appellant fired the gunshot chopping of his toe and causing pellets injuries on other parts of his body with blackening and tattooing. The same gunshot also caused pellets injuries to witness Ram Pratap Singh with the marks of blackening and tattooing. He also referred to the ballistic report which suggests that the gunshot was fired from the licensed gun of the accused appellant.

Sri Amit Chaudhry appearing for the complainant submitted that the incident took place at the door of the bedroom when the accused fired from inside the room. The autopsy surgeon has opined that if the leg and shoulder of the deceased came in one line the injuries in question could be received from a single gunshot by both namely, the deceased and his brother witness Ram Pratap. Learned Counsel referred to a Judgment of the apex court reported in 2010 1 SCC (Cri) 486 (State of U.P. v. Rashid and ors) in support of his contentions.

On a careful consideration of rival submissions and a minute reappraisal of evidence on record, we notice that the prosecution evidence is consistent in proving the prosecution case to the hilt.

Rudra Pratap Singh (PW-1) is the author of FIR and is also an eyewitness of the incident. In his testimony he has supported the prosecution case, and also stated that on 22.04.2006 they were in the midst holding talks with accused-appellant Tej Singh in his courtyard regarding the cutting of their wheat crop by him from a field in their possession during the harvest season, 3-4 days prior to the date of incident i.e.22.04.2006. At that time family members of both sides including those who had gathered there at about 9.00-9.30, in the night for the settlement of dispute were also present. The accused-appellant, all of sudden, got agitated at about 10.00-10.30 and started abusing them. However, the complainant side tried to explain and pacify the accused but he rushed into the bedroom and picked up his gun. The complainant and others present over there followed him upto the verandah of the house. But the accused, suddenly pointed the gun towards witness Ram Pratap in order to kill him from inside the room. In the meantime, deceased Udai Pratap in order to save his brother Ram Pratap''s life came on the front and tried to hit the barrel of gun with his leg. But at that moment, the accused-appellant fired the gunshot which hit the great toe of the leg, the front side of shoulder, and the armpit area of deceased Udai Pratap and also caused the pellets injuries on the chest of injured Ram Pratap. Deceased Udai Pratap collapsed there itself and accused Tej Singh slipped away with gun. They lifted deceased Udai Pratap and sent him and injured Ram Pratap in motorcycles to Unnao. He received the information at about 12.15 in the night about the death of deceased Udai Pratap and was also asked to inform the police. While he was writing the report, he received another phone call that the Doctor having examined declared him brought dead. He wrote the complaint quickly and went to the police station on motorcycle at 12.30 in the night and lodged the report. This witness has proved the FIR as Ex. Ka-1. Thereafter he returned home and when the Sub-Inspector investigating the case came to the village in the morning, his statement u/s 161 Cr.P.C was recorded at the scene of occurrence. Inquest of dead body was completed in the hospital at about 11.00-12.00 in day time on the following day. During cross-examinations, this witness clarified that the family partition between his father and Uncles had taken place about 20-22 years back, and he also denied a defence suggestion that Ram Autar Singh father of accused Tej Singh was the first to move out of joint family and get the partition of his share in the HUF property done. During further cross-examinations, this witness also clarified that the wife, mother, sister-in-law and children of the accused Tej Singh were also present at home at the time of occurrence. He also clarified that they never had any dispute over the partition of property with accused in the past 20-22 years. About three to four days back the accused had got their wheat crop cut for himself. This witness also stated that when the accused engaged himself in cutting of the wheat crop in question, he was at home and had also tried to stop the accused. However, the accused persisted and continued to do so. Thereafter he informed his brothers Udai Pratap and Ram Pratap about the incident of cutting of wheat crop on telephone who were at Unnao at that time. However, they advised him not to pickup quarrel with accused and the matter was to be settled peacefully while sitting with him. He also clarified that at the time of cutting of the wheat crop, the accused himself was present in the disputed field. The field where the accused got the crop cut, with the help of labourers, was an erstwhile joint family property which had come to the share of complainant side in a family partition. Prior to that day, the accused had never lay any claim for any crop of that field. On the date of incident his brothers Ram Pratap and Udai Pratap collected all other family members present there and went to the house of accused at about 9.00-9.30 in the evening. The roof of the house of complainant and of the accused adjoined each other on partition of the old joint family ancestral house. All the family members of the accused had also gathered there in the courtyard. He has denied the defence suggestion that he went inside the house of the accused through stair-case. The complainant side had come inside the house of accused only through the joint old courtyard. In addition to the common courtyard, all the members of erstwhile joint family have also covered the vacant areas of their shares which can also be called courtyards. The old courtyard is being used by all the members. The accused was sitting in the courtyard of his house when the complainant side came inside. As it was a family matter, all the members of complainant side while calling the accused by name came inside his house. The accused is younger in age to the complainant and moreover, only when the accused had permitted them to come in, they went inside. Members of complainant side who went inside the house of accused-appellant, were, namely, complainant Rudra Pratap Singh, Pradund Kumar Singh, Rajendra Singh, Shiv Poojan Singh, Ram Pratap Singh, Udai Pratap Singh, Pawan Kumar Singh, Anoop Singh, complainant''s father and nephew. At that time, appellant''s mother, wife, sister-in-law (brother''s wife) and nephew/niece (children of his brother) were also present. One Dharmendra Singh of the family of his Uncle Bhanu Pratap Singh had also accompanied them. A cot was already lying in the courtyard, and hence, all of them sat on that cot. The accused was sitting on another cot in the side. There was 1 or 1-1/2 feet distance between the two cots. At that time, one emergency light which was hanging from a column (pillar) of the verandah was burning. Apart from the emergency light other lights of solar energy were also burning and one such light was glowing in the bed room. The discussion for settlement between the parties continued for about one hour, and during that period, there was no heated exchange of words between the parties. But all of sudden the accused got agitated on his own, and refused to accept the family partition. Then witness Ram Pratap advised him to go for partition in court and asked him to return the wheat that belonged to them. The accused got infuriated and while abusing and telling for Ram Pratap that he has become a great lawyer, rushed into the bedroom. When he went inside the room, the complainant and other members of his family who had gathered for settlement of dispute also followed the accused and went up to verandah.

The distance between the place where the complainant side was sitting and the bedroom of accused was about 7 to 10 feet. They followed him to prevent from firing the gun shots as they apprehended the happening of some untoward incident. In the meantime, the accused pointed his gun at Ram Pratap who was on the front. Following him was deceased Udai Pratap and then all other members of his side. The accused did not come out of room with gun and was still inside. The complainant side also did not enter the room because it was the bedroom of accused. This witness also clarified that the accused appellant has two sons and a daughter. There was no scuffle between the parties. Deceased Udai Pratap was standing in the middle of door at that time and Ram Pratap was just behind him and then the rest of the members of complainants'' side. The one and only gunshot that caused death of deceased and injured witness Ram Pratap was fired by the accused from inside the room. On being hit by the gunshot, Udai Pratap brother of the complainant fell down and the complainant tried to lift him. At that time the accused slipped away with his gun from that place. Udai Pratap by that time had gone into comma and Ram Pratap walked out on his own. The hands of the members of complainant side got wetted with blood but their clothes were not stained. Deceased Udai Pratap suffered gunshot in his left armpit and the left leg great toe. There were two motorcycles available with complainants, thus, they managed to send injured Udai Pratap and Ram Pratap to hospital. The complainant himself did not accompany them and after half an hour of the incident there was a gathering of other natives of complainant''s village and also the neighboring villages. This witness has categorically denied a defence suggestion in cross examinations that since the complainant was not present at the spot, therefore, he did not rush to police station immediately. He also denied the defence suggestion that the police Sub-Inspector had reached the spot even before lodging of FIR. He also pointed out the place where the incident had taken place and where the deceased and injured had received gunshot injuries. He also clarified that the complainant side was unarmed when they had gone to the place of accused for settlement of dispute. He has also denied the defence suggestion that when the complainant side had gone inside the house of accused, there was no light and the accused was lying on bed. There is a categorical denial of the defence suggestion that the members of complainant side were armed with country made pistols which fired accidentally in the scuffle and caused fatal injuries to the deceased and pellets injuries to injured witness Ram Pratap. Complainant Rudra Pratap has also denied the defence suggestion that there was no provision for light, and thus, it was not possible for the complainant or other members of the complainant side to know as to what had happened inside the room.

Ram Pratap (PW-2), also an injured witness, has supported the prosecution case and corroborated the testimony of complainant Rudra Pratap Singh (PW-1), in material particulars. He has denied all such defence suggestions which were given during cross examinations to demolish the prosecution case. However, he has clarified that when he and his brother deceased Udai Pratap were being carried on motorcycles to hospital, the police jeep of police station Bihar with SO was noticed near the Gadaria crossing. They narrated the entire incident to him in brief. The SO helped them in being carried to hospital in a marshal jeep. In the hospital, the doctor declared injured Udai Pratap being brought dead at about 12-12.15 soon after they had reached the hospital. Hearing the news of death of Udai Pratap, his nephew immediately passed on the information over telephone to his native village. This witness was also medically examined and then admitted in the hospital. His statement was also recorded by the investigating officer. The witness has clarified like PW- 1 Rudra Pratap that they had gone to the house of the accused to settle the dispute peacefully. He has disclosed that prior to this incident there was no dispute ever over any property matter between the parties, and all the members of joint family after family partition were peacefully settled on their shares of property, even though the entire joint family property still stood in the names of all the share holders. However, a part of the property had been separately entered into the name of father of accused Tej Singh. According to this witness his relationship with accused Tej Singh was cordial so much so that on one occasion the accused had come to his place with his wife for medical treatment when she had developed a boil on her breast and this witness had helped her in getting proper medical treatment. The witness has also clarified that he did not know much about the cultivation of his family land, for the same was being looked after by his elder brother. He had not participated in sowing of the wheat crop etc. According to this witness, the complainant side had gone to the house of accused along with his father, brothers, cousins and nephew etc. to know the reason for cutting of wheat crop from the land in question. It would show that not only the real brothers of the witness but also his father and uncle''s sons had gone to settle the dispute peacefully. The news of forcible cutting of the wheat crop from the land in question had already been told to the persons who participated in the settlement process, and even the natives of their village had also advised to settle the dispute by holding talks with the accused. This witness has also clarified that there is a common path to their ancestral house which is now partitioned and is in possessions of the share holders to the extent of their shares, and besides that common path way, each of the share holders of the house has also constructed separate passages in their parts of the house. The complainant side had entered into the house of the accused through the common courtyard after seeking his permission , although, they had not informed him in advance that they were coming to negotiate the settlement of dispute arising over cutting of the wheat crop. They had not entered the house of the accused by climbing the staircase. According to this witness, when they arrived in the courtyard of the house of the accused , all his family members were already present, and on being asked the reason for cutting the wheat crop from the land claimed to be in their share, the accused answered that he did not accept the family partition. However, on being advised to let the partition be done through court, the accused got agitated and started hurling abuses. He on being advised not to abuse the members of complainant side present over, he all of sudden got up and rushed into his bedroom. 8- 9 persons who had come to settle the dispute also followed him to the room where a solar energy light was burning. Soon after entering the room, the accused picked up his gun and aimed at this witness but his younger brother Udai Pratap who was standing near him came in front from the right direction. The moment Udai Pratap raised his leg, the accused fired the gunshot causing injury to him as well as to injured Ram Pratap. The witness has also stated that it is not a case of accidental firing of gun shot in the scuffle with the accused. He has denied the defence suggestion that accused Tej Singh had run into his bedroom in order to save his life and this witness as well as his brother Udai Pratap had followed him with countrymade pistols, and in the scuffle, there was a fire from a countrymade pistol causing fatal injuries to deceased Udai Pratap and pellets injuries to him. The witness has stated that after the incident, the complainant side had stayed at the place of incident and got engaged in lifting and shifting the injured for medical treatment, and the accused had run away from the scene of occurrence with his weapon. None of the members of the complainant side had attempted to apprehend the accused as all of them had got engaged in lifting the injured. The witness has stated that he was fully conscious at the time of incident and also during being transported to the hospital. He has clarified that he is a practising lawyer but only in revenue matters. He has also clarified that though he met the police Sub-Inspector on the way to hospital and narrated the incident in brief but did not ask him to register a report. He has, in particular, denied the defence suggestion that since the deceased was straightway taken to District Hospital and not to the nearest Primary Health Centre, he could not survive. He has also stated that he received the pellets injuries in chest and thumb of his right hand. Thus, he has fully supported the prosecution case.

Dr. P.N. Ahirwar (PW-3) is the autopsy surgeon. He was on post mortem duty on 23.04.2006, when the dead body of deceased was received for post mortem. He noticed that it was an average built body. Eyes were half open and the mouth was closed. Rigor mortis was present on both the upper and lower limbs. Regarding ante-mortem injuries the doctor has noticed as under:

Firearm wound present on left side of shoulder (front) and armpit area. Size 18.0 cm X 11.0 cm X through and through, bone deep. Blackening present in the area of armpit anteriorly in muscle tissue. Underline bones are fractured. Muscles, vessels and veins were lacerated.

Firearm wound present over left great toe 3.5 cm X 3.0 cm bone deep. Blackening and charring present on great toe. Distal phalanges chopped off tangentially.

In the opinion of Doctor the death of the deceased was caused from haemorrhage and shock as a result of ante-mortem gunshot injuries. The doctor also clarified that the injury No. 1 and 2 can also be received from a single gunshot if it is fired in straight line between the left leg and shoulder. The death of deceased was possible at about 12 O''clock in the intervening night of 22/23.4.2006. He has proved the post-mortem report Ex. Ka-2.The doctor has opined that if the gunshot was fired from a distance of 1-3 ft. from a standard gun, then blackening, tattooing and scorching were possible. If a gunshot is fired from the front, it is not necessary that the gunshot injury would not be received by a person standing behind.

Head Constable Chottan Lal (PW-4) was posted as Head Moharrir of Police Station Bihar on 23.4.2006. On the basis of a written complaint submitted by complainant Rudra Pratap Singh, he had registered the Chik No. 44/06 u/s 302/307 IPC. He has proved the Chik and FIR and admitted to have written the same in his handwriting. He has also proved the original GD Ex. Ka-4 and the special report sent to senior officers at 3.20 vide report No. 6 through Constable Suresh Prasad Bajpayee. On 23.4.2006, B.P. Mishra, S.O., had lodged the accused in police lockup and deposited one SBBL gun and the blood stained and plain earth vide GD entry No. 26 recorded at 23.40 hours, which is Ex. Ka-6. P.W. 4 has also stated that he had informed the S.O about the incident at the time of registering the report on RT Set. He has clarified that before he had informed the S.O. on RT Set, he had already prepared the Chik. S.O. was not present at the Police Station and a copy of the Chik was sent to him by an special messenger.

Constable No. 517, Ashok Kumar Yadav (PW-5), has stated that on receiving the information from hospital about the death on 23.4.2006, he went to district hospital with S.I. Ranjeet Singh where the inquest report of the dead body was prepared by SI Ranjeet Singh. The dead body after the inquest was handed over to him after completing necessary formalities for the post-mortem. Till the dead body remained in his custody, it was not allowed to be tampered or interfered with in any manner. After the postmortem, dead body was handed over to the family of deceased and the postmortem report and a packet received from the autopsy surgeon were submitted in the police station.

S.I. Ranjeet Singh (PW-6) has stated that on 23.4.2006 having received the information about death of the deceased from hospital he set out along with Const. Ashok Kumar Yadav for district hospital Unnao and carried out the inquest proceedings in the presence of witnesses, and then sealed the dead body after seeing the clothes and noticing the seat of injuries. Thereafter, having completed the necessary formalities sent the dead body with Const. Ashok Kumar Yadav for post mortem examination. He has proved the Exhibits relating to inquest proceedings, requisition slip addressed to CMO, photographs of dead body and the dispatch papers of dead body which were prepared in his handwriting, under his signature being Ex. Ka-7 to Ex. Ka-11. He has clarified that he had received the information at about 1.10 in the night about the death and then reached the district hospital on 23.4.2006 at 11 O''clock. The inquest proceedings which started at 11 O''clock was completed by 11.50. He was aware of the first information report at the time of preparing the inquest report. He had received a copy of the FIR, and his statement had been recorded by the I.O. He has denied the defence suggestion that the copy of FIR had not been made available at the time of completing the inquest proceedings.

Dr. Anil Kumar Tiwari (PW-7) was also posted as a Medical Officer in the district hospital on 23.4.2006. On that day itself, he had medically examined the injured, Ram Pratap, who had been brought along by Rajendra Singh. He noticed the following injuries:

Multiple firearm injuries 0.25 cm X 025 cm which was muscle deep. It was present over an area of 34 cm X 16 cm. These injuries were present on both sides of the chest and also towards the right side of abdomen. Blackening and tattooing were also found present.

Abrasion 2 cm X 1 cm towards the right side of back and the distal end of thumb.

Injury No. 1 was kept under observation, and advised for X-ray. At the time of examination, the aforesaid injuries were found to be fresh. In the opinion of doctor, injury No. 1 had been caused by a firearm whereas the injury No. 2 was possible from pellets, if while passing they touched the dorsal distal end of the thumb. These injuries were possibly received at about 10.30 in the night of 22.4.2006, and being fresh, within 6 hours of the examination. The injuries were recorded in the register at the time of examination. The witness has produced the register wherein (at page No. 95) the original injury report of injured Ram Pratap had been noted. The witness has proved the photocopy of main register Ex. Ka- 12 . At the time of medical examination of the injured, the doctor had not found presence of any pellet, therefore, he had referred the injury for X-ray.

SI B.P. Mishra (PW-8) is the Investigating Officer of the case and he has supported the prosecution case in material particulars. He has withstood the rigors of the cross-examinations. According to the witness he took over the investigation on 23.04.2006 on receiving a copy of the report. On 23.04.2006 itself he recorded the statement of the complainant and inspected the spot of incident. He also prepared the spot map/site plan vide Exhibit Ka- 13. He collected the blood stained and plain earth from the scene of occurrence and sealed them in separate containers. The witness also prepared the sample of seal used in the seizure of these incriminating articles. On receiving information from an informer he arrested the accused from Vajpayee Petrol Pump. He went to the place mentioned by the accused during his interrogation and recovered the SBBL gun No. 03597 and an empty of cartridge at 22.30 pm and sealed these incriminating articles on the spot itself. Thereafter, he lodged the accused in police lockup and deposited the seized articles with head mohrir Chotan Lal. On 24.06.2006 he recorded the statements of witnesses to panchyatnama. On 27.04.2006, he went to district hospital, Unnao and recorded the statement of injured Ram Pratap Singh. On 30.05.2006, clothes, blood stained earth and plain earth connected with the offence were sent to forensic science laboratory. The report of forensic science laboratory is exhibit Ka-22 and that of ballistic expert is Ka-23.

On 31.05.2006, the witness submitted chargesheet No. 88 against the accused vide exhibit Ka-2 1.

On 9.05.2006, vide crime No. 150 of 06, an offence u/s 30 of the Arms Act was registered. This offence was investigated by SI Sri B. M. Singh. This witness identified his handwritings and the signatures. SI B. M. Singh also submitted the chargesheet in this case under the Arms Act vide Ka-26.

During the course of examinations, the witness mentioned that he had noted the seat of pellets injuries near and around the chest and legs of injured Ram Pratap. He also clarified that adjoining the house of accused Tej Singh is the house of deceased Udai Pratap on its east direction. There is no internal door in the wall dividing the two houses to enter the house of accused except through the stair-case attached to the wall. There is a common roof and by using stair-case the accused and complainants can go to the roof of each other. He had also noticed the presence of cots in the courtyard of accused Tej Singh. In the site plan, he has shown the place where the deceased had been shot by the accused from his licensed gun. This place marked as ''A'' has been shown to be in the middle of east and south directions inside the room. According to this witness he had met injured Ram Pratap and Udai Pratap at the Gadaria crossing after he had received information on RT set. Further, injured Ram Pratap had also informed the witness about the incident of firing. He has clarified that he received the information about registration of FIR on the RT set. He admitted to have sent the injured persons to hospital in a marshal jeep. Injured Udai Pratap was in comma but alive. The witness has clarified that he had arrested the accused at about 9.00 in the night and after completing the paperworks regarding the recovery of incriminating articles, he had recorded the statement of accused Tej Singh. The witness has firmly denied all the defence suggestions including the suggestion of improvement etc. made in consultation with the complainant, in his cross-examinations.

On the other hand, in his statement u/s 313 Cr. P. C the accused has denied the charge to be false and a frame up designed in connivance with the investigating officer. However, he has admitted that all the members of the old joint family are shareholders in the ancestral house. He is also living in his share of the house but his house is at a distance of 800 meters from the ancestral house. He has also mentioned that the complainant side was demanding the land of his share. Further, since he did not part with any piece of land of his share, the complainant started mounting pressure on him and in the night of the date of incident, the complainant side while crossing his courtyard all of sudden came to his room. When they entered the house, he ran into the room. A bed was lying in the center of the room and he climbed on that bed. The complainant side started scuffle and tried to drag him. Some of them were carrying countrymade pistols which accidentally fired. He received gunshot injuries in the neck and hand, and none else had suffered any gunshot injury. On raising hue and cry, they left him and thus he came out of the room and ran towards south direction. As it was dark in the room, he could see nothing. He had not seen injured Udai Pratap and Ram Pratap receiving pellets injuries.

Defence produced two witnesses namely, Archana (DW-1) wife of accused, and one Ravi Krishan Nigam (DW-2) forensic science expert, to counter the prosecution case. Archana (DW-1) stated that the complainant by climbing the stair-case came inside her house. The stair-case also belonged to her. As the complainant side came inside the courtyard while hurling abuses, therefore, she and her husband Tej Singh came out of the room. The complainant side was demanding their share in the wheat crop of the land which stood in the name of her husband. However, she also stated that when they were talking to her husband, she and her mother-in-law were also sitting in verandah. During the course of talks, injured Ram Pratap, deceased Udai Pratap and one Pawan Kumar were holding countrymade pistols. During the course of talking, they started assaulting her husband who rushed inside the room. They also went inside the room and again caused assaults. She heard the sound of firing but she could not know as to what had bursted. Her husband somehow saved his life and ran away. Ram Pratap was holding the gun of my husband and later, he handed it over to the IO/police Sub-Inspector. The police SI had visited my house to inspect the place of incident, but he had never come to the house with accused Tej Singh. During her cross-examinations, she has mentioned that the house, she is living in, has been constructed by her father-in-law. Again voluntarily said that the complainant side has not given the share of her husband in the ancestral house. She also stated that there is no way from her house to go to the ancestral house. She had not seen anyone firing gunshot as it was dark at that time. She denied the prosecution suggestion that her husband had fired gunshot at Ram Pratap and Udai Pratap. She also denied the factum of burning of emergency light and volunteered to say that her solar energy light was out of order. She stated that she did not lodge an FIR after the gun of her husband was taken away by injured Ram Pratap because at that time there was no male member in the house. In reply to Court questions she stated that her husband had somehow saved his life and run away and thereafter he has not come back. She also denied the suggestion that she was giving the statement on being tutored or she was giving a false statement to save her husband. She also denied the suggestion that her husband had fired gunshots at deceased Udai Pratap and injured Ram Pratap.

Ravi Kishan Nigam (DW-2) is forensic science expert. He was produced by the defence to prove that the injuries sustained by deceased Udai Pratap and injured Ram Pratap were not possible from a standard .12 bore gun, and rather, it was possible from firing of a countrymade pistol. However, in cross-examinations, this witness has admitted that he had not seen the gun or the cartridge used in this case and only on the basis of documents and informations supplied by the defence counsel he had prepared the report and for preparing the report he has charged a fee of Rs. 5500/-. During cross-examinations he has also stated that he did not submit any certificate regarding his charges of fee, although he claimed to be a private practitioner in forensic science.

Incident in question took place at 10.00 - 10.30 on 22.04.2006 over cutting of disputed wheat crop by the labour engaged by accused under his direction a few days prior to the date of occurrence. The accused engaged in cutting of the wheat crop even after the objection/protest registered by complainant Rudra Pratap (PW-1). It would appear that the complainant side including the complainant, were four brothers, all healthy, able bodied and young. But they remained cool in view of normal relationship with the accused. It would be obvious from the testimony of injured witness Ram Pratap that when the wife of accused had developed some boil on her breast, the accused had come to his place at Unnao for medical treatment and the witness had made necessary arrangements for a proper medical treatment. In this background the complainant side decided to resolve the dispute peacefully by negotiation with the accused. It would also appear from the prosecution evidence that the complainant side had entered the house of accused after seeking his permission, however, since the accused carried a negative opinion about the complainant side, therefore, in the midst of discussion, he lost his cool and got infuriated. Even the suggestion of settling the matter of family partition in Court also did not work and the accused while abusing the complainant side particularly witness Ram Pratap, who was a practising Advocate on revenue side at Unnao, all of sudden rushed into his bed room. As the accused had run into the bedroom in anger, knowing well that he is a firearms licence holder, the complainant side while apprehending dangers, followed him upto the bedroom. The complainant side had discussed the matter with accused for quite some time and then the scene had turned ugly in view of the conduct of accused Tej Singh who indulged in hurling abuses and finally in anger picked up his licensed gun and fired at the complainant side. Had the complainant side entered the house of accused with a preplanning to quarrel and assault him, they would not have wasted time in discussion and moreover, even having received gunshot injuries as a result of firing by the accused, the complainant side allowed the accused to go away from the scene of occurrence with his licensed gun without a scratch on his body. The claim of accused/appellant that he received some gunshot injuries near the neck and other parts of body also stand belied by the fact that there is no medical report to that effect on the record of this case to show that he really had suffered any injury in the scuffle with complainant side, or from accidental firing of country made pistols alleged to be carried by the complainant side.

As per the spot map, the incident of causing gunshot injuries to deceased Udai Pratap and injured Ram Pratap (PW-2) had taken place at point ''A'' which is inside the room wherein the accused had rushed to pickup his gun. It is also evident from the prosecution evidence that the complainant side consisted of 8-9 members and the number of gunshot fired from the single barrel .12 bore gun by the accused was only one. Thus, the complainant side had enough opportunity and strength to overpower the accused and cause assaults and it could not have been possible for him to run away from the room with 8-9 people of the complainant side being present around. Still the accused was allowed to leave the place safely with his single barrel gun which he could not have dared to reload without resistance from the complainant side. That apart, the testimony of his wife Archana (DW- 1) also suggests that the complainant side did not start any assault on the accused soon after their coming inside her house. She has also stated that Ram Pratap (PW-2), deceased Udai Pratap, and one Pawan Kumar were holding country made pistols but this statement does not find support from the evidence on record as well as the circumstances of this case. In her statement she has stated that her husband somehow saved his life and ran away but she has not supported the statement of her husband insofar as he stated u/s 313 Cr.P.C. that he had received pellets injuries at his neck and hands. Besides, the evidence of Ravi Kishan Nigam (DW-2), a forensic Science Expert, also does not support the defence case since his opinion is admittedly based on documents and information supplied by the defence counsel and for giving the opinion he had also charged a fee of Rs. 5,500/- as he had been privately engaged to prepare a report. He had not seen the gun and cartridge used in the incident. Thus, the submission on behalf of accused-appellant that the complainant side was aggressor does not stand established and is accordingly rejected.

Factum of commission of offence inside a room in the house of accused-appellant is not disputed, nor is the factum of presence of accused and complainant on the scene of occurrence. From the prosecution evidence as also the statement of DW-1 it would be obvious that there was no scuffle between the complainant side and the accused immediately on the arrival of complainant side. There was some exchange of views over cutting of the wheat crop in question, and further that it would be obvious from the record that the accused had not received any gunshot injuries nor even a scratch on his person in the incident as there is no medical evidence oral or documentary to that effect on record. Thus it can be safely held that none else but the accused caused the injuries to deceased Udai Pratap and to injured witness Ram Pratap. Even the medical report in the nature of postmortem report of the dead body of Udai Pratap and injuries report of injured Ram Pratap also suggest that both of them had received the gunshot injuries fired from the single barrel gun of accused used in the incident. Dr. P.N. Ahirwar has noticed two injuries, namely:

Multiple firearm injuries 0.25 cm X 025 cm which was muscle deep. It was present over an area of 34 cm X 16 cm. These injuries were present on both sides of the chest and also towards the right side of abdomen. Blackening and tattooing were also found present.

Abrasion 2 cm X 1 cm towards the right side of back and the distal end of thumb.

The doctor has opined that the death of deceased was caused from hemorrhage and shock as a result of anti-mortem gunshot injuries. He has clarified that the injury No. 1 and 2 can also be received from a single gunshot, if it is fired in straight line between the left leg and shoulder. The death of deceased was possible at about 12.00 O''clock in the intervening night of 22/23.04.2006. He has further clarified that if the gunshot was fired from a distance of 1-3 ft. from a standard gun, then blackening, tattooing and scorching were possible. Besides, if a gunshot is fired from the front, it is not necessary that a person standing behind would not receive injuries.

Dr. Anil Kumar Tiwari (PW-7) had medically examined injured Ram Pratap on 23.04.2006 and noticed the following injuries:

Multiple firearm injuries 0.25 cm X 025 cm which was muscle deep. It was present over an area of 34 cm X 16 cm. These injuries were present on both sides of the chest and also towards the right side of abdomen. Blackening and tattooing were also found present.

Abrasion 2 cm X 1 cm towards the right side of back and the distal end of thumb.

Injury No. 1 was kept under observation and advised X-ray. According to doctor injury No. 1 was possible from a firearm whereas the injury No. 2 may be received when the pellets had touched the dorsal digital end of the thumb. According to doctor, these injuries were received at 10.30 in the night of 22.04.2006, within six hours of the examination. Vide the Forensic Science/Serologist''s report Ex. Ka-22, on articles 2 to 6, i.e. Pant, shirt, underwear, banniyain and angochha (a large size handkerchief), human blood was found. As per the report of FSL Ex. Ka-23, the cartridge marked as E.C.-1 was fired from SBBL gun No. 03597 marked as 1/2006 belonging to the accused. Thus, from the eye witnesses accounts including that of injured witness Ram Pratap (PW-2) as also from the reports and documents exhibited in support of the prosecution case, it is proved beyond doubt that the offence was committed by none else but accused-appellant Tej Singh.

Now, the question would arise as to whether in the aforesaid facts and circumstances of the case the accused has committed the offence of murder or the culpable homicide not amounting to murder. The distinction between two has been summarised with lucidity in a judgment of this High Court reported in Parvesh and Another Vs. State, as:

In a case of murder the offender has a positive intention or knowledge. He assaults the victim with intention of causing death or with the definite knowledge that one bodily injury inflicted by him would cause death or (2) the injury would be sufficient in the ordinary course of nature to cause death or (3) the injury was so imminently dangerous that it must cause death. In the case of culpable homicide the intention or knowledge is not so positive or definite. The injury caused may or may not cause death. Even if exceptions 1 to 4 to Section 300 I.P.C are not applicable, the offence can still be culpable homicide. To find out if the offender is guilty of murder, it must be held that the case falls within any of the 4 clauses of Section 300, otherwise, he will be guilty of culpable homicide not amounting to murder.

Section 300 of I.P.C., provides for 4 serious types of culpable homicides based on mens rea (the existence of a positive mental condition/attitude necessary for the offence) to be called murder. They are - an act with the intention of causing death, an act with the intention of causing such bodily injury as the offender knows to be likely to cause death, an act done with the intention of causing such bodily injury which is sufficient in the ordinary nature of course to cause death and an act which the offender knows is so imminently dangerous that it must in all probability cause death. In the first 3 clauses, the element of mens rea is reflected through different types of intentions whereas in the last clause it is embodied in knowledge.

On a careful reading of the factual back ground of this case, we need to examine the obtaining circumstances of the offence in the light of the aforesaid parameters to determine the exact nature of offence committed by the accused-appellant. The circumstances can be detailed as:

that the incident took place inside a room of the house of accused- appellant;

that as per prosecution case/evidence a single gunshot was fired at the moment when deceased Udai Pratap, all of sudden, came in front of his brother Ram Pratap (PW-2) an injured witness, and hit the barrel of gun with leg after raising it in order to save Ram Pratap from the fire of gun pointed towards him;

that the deceased and the injured, both, received the gunshot injuries from a single gunshot;

that as per the medical report of Ram Pratap, the injuries were caused around 10.30 in the night of 22.04.2006 and as per the post-mortem report of deceased Udai Pratap he died at about 12.00 O''clock in the night of 22/23.04.2006;

that the accused-appellant did not repeat the firing or reloaded his gun and he was allowed to escape from the scene of occurrence with his gun even in the face of presence of 9-10 members of the complainant side;

that the doctor has noted the cause of death to be hemorrhage and shock, and nowhere in his testimony he has mentioned that the injuries suffered by the deceased were sufficient to cause death in the ordinary course of nature (unfortunately this point was not taken up by learned defence counsel during the trial, not even during the hearing of this appeal);

that prior to the incident in question there had been no quarrel between the parties and they being the collaterals are also the co-sharers of their joint ancestral properties;

that even after the cutting of disputed wheat crop at the instance of accused, the complainant side did not react sharply and wanted to settle the matter peacefully by negotiation with the accused;

that at the time of incident, family members of both sides were present and the complainant side had entered the house of accused only with his prior permission;

that the accused in his statement u/s 313 Cr.P.C., claimed to have received gunshot injuries at his neck and hands but there is no medical evidence to that effect on the record of this case and,

that when the wife of accused had developed a boil on her breast, the accused had gone to witness Ram Pratap (PW-2) at Unnao who had made necessary arrangements for her medical treatment showing that the parties enjoyed confidence of each other and had a cordial relationship earlier.

First, second, third, fifth, ninth and tenth circumstances would relate to the manner in which the incident took place. Prosecution has led necessary evidence to show that the incident took place inside the house of appellant in a room which the latter claimed to be his bedroom. The accused did not suffer any injury although in his statement u/s 313 Cr. P. C. he has stated that he had received pallets injuries at neck and hands. There is no medical report to that effect on record nor is there any oral evidence to substantiate the assertion of appellant. On the other hand, this has throughout been the case of prosecution that the complainant side was absolutely unarmed and in support thereof we notice the circumstance that the accused succeeded in escaping from the scene of occurrence even without a scratch on his body. It is an admitted case of the prosecution that when the accused pointed his gun towards witness Ram Pratap (PW-2), deceased Udai Pratap, his younger brother, came on front and tried to hit the barrel of the gun with his leg. It has also come in prosecution evidence that at the moment of hitting the barrel, the accused fired the gun causing injuries to the deceased and his brother Ram Pratap. Dr. Ahirwar (PW-3), the autopsy surgeon, has also opined that if the gunshot was fired in straight line between left leg and shoulder, injury No. 1 and 2 suffered by the deceased were possible. That apart, the gunshot was fired from .12 bore SBBL gun, thus, the pallets could have also caused injuries to injured witness Ram Pratap (PW-2) as well. Dr. Ahirwar in his cross-examination has clarified as to how the marks of blackening and tattooing were possible from the single gunshot fired in the incident. Moreover, Dr. Anil Kumar Tewari (PW-7) who examined the injured, Ram Pratap, was not given any suggestion in cross- examination regarding the presence of marks of blackening and tattooing near injury No. 1.

In regard to circumstances No. 4, 6, 7, 8 and 11, it would be obvious from the records that the death of deceased did not occur soon after the incident. The incident took place at 10.30 in the late evening and the deceased died at 12.00 O''clock in the intervening night of 22/23.04.2006. It has also been the defence plea that had the deceased not been carried to a distance place at Unnao and had he been taken to the local Primary Health Center, looking to the nature of injuries, though gunshot, suffered on the non-vital parts of the body, he may have survived. Moreover, the deceased died of haemorrhage and shock and the Autopsy Surgeon has nowhere in his evidence or report noted that the injuries noticed on the body of deceased were sufficient to cause death in the ordinary course of nature. Besides, the complainant side and the accused being collaterals as well as shareholders in the ancestral property had a cordial relationship earlier which is reflected from the fact that when the wife of accused had developed a boil on her breast, the accused had taken her along to injured witness Ram Pratap, a practising lawyer on revenue side at Unnao, for receiving a proper medical treatment and the witness had made necessary arrangements for the medical treatment. Even after cutting of wheat crop in question, the complainant side exercised utmost restraint and went inside the house of accused only with his prior permission. Thus, it is not a case of saying ''no love lost'' between the parties.

In view of all the aforesaid, it cannot be said that the accused/appellant had a positive intention of causing death or had definite knowledge that the bodily injury inflicted by him would cause death as also that the injury caused by him would be sufficient in the ordinary course of nature to cause death. It is obvious also from the fact that he did not repeat the firing of gunshot and it is a case of prosecution that the deceased all of sudden came in front and hit the barrel of gun with his leg and at that time the accused fired the gunshot. The Autopsy Surgeon has also not mentioned in medical evidence that the injuries were sufficient to cause death in the ordinary course of nature. Hence, we hold that the accused has committed the offence of culpable homicide not amounting to murder qua deceased Udai Pratap which would be punishable, in the facts and circumstances of the case, u/s 304 Part II I.P.C. As regards the offence in respect of injured witness Ram Pratap, though the seats of injury No. 1 are the vital parts of body but there is no opinion of doctor to the effect that had the medical treatment not been given immediately the injured would have died.

Moreover, these injuries were only muscle deep. Thus, the offence would be covered only u/s 308 I.P.C. and not u/s 307 I.P.C.

In the premises discussed hereinabove, we set-aside the judgment and order of conviction and sentence of the accused/appellant Tej Singh u/s 302 and 307 I.P.C. in Sessions Trial No. 307 of 2006 passed by learned Additional Sessions Judge, Court No. 2, Unnao dated 09.08.2007 and instead hold him guilty of offences u/s 304 Part II I.P.C. and 308 I.P.C.

Now coming to the question of sentence in respect of the offences committed by the accused/appellant, we notice the circumstances of this case like: (i) that the accused committed the betrayal of confidence of the complainant side who were unarmed by causing gunshot injuries to young collaterals namely deceased Udai Pratap and injured Ram Pratap; (ii) that the complainant side was not the aggressor and had gone inside the house of accused with his prior permission; (iii) that the accused caused the death of one of his young collaterals and injuries to other, who is a practising laywer on revenue side and who had once also helped his wife in getting a proper medical treatment on the request of accused/appellant; (iv) that the complainant side had allowed the accused to escape with weapon scatheless from the scene of occurrence, and (v) that the accused/appellant got infuriated and fired from his licensed firearm without any provocation but with knowledge that in the room where the incident took place, the complainant side having been placed in a disadvantageous position would have certainly received injuries. Hence, we punish the accused/appellant with a sentence of 8 (eight) years RI and a fine of Rs. 8,00,000/- (Rupees eight lacks only), with a direction to undergo further RI for 2 (two) years in case of default of payment of fine, on the first count, and with a sentence of 3 (three) years RI on the second count. We also direct that both the sentences shall run concurrently. Further, while imposing the sentence of fine, we have also noticed the fact that the accused and the complainant side, both, claim the inheritance from a common ancestry, with sufficient land holding/property and thus on payment of the fine amount as compensation, it would only go to a collateral of the accused. Hence, we direct that the fine amount shall be paid as a compensation to the next of kin of deceased Udai Pratap u/s 357 Cr.P.C.

In view of all the above discussion, this criminal appeal is allowed in part with the aforesaid modification in the order of conviction and sentence. The accused/appellant, who is presently lodged in jail, shall be released on completing the period of sentence and depositing the amount of fine, if not wanted in any other case.