S.M. Rizvi, J.
1. This criminal appeal is directed against the judgment and order of the learned Sessions Judge, Kathua dated 31-7-1990, convicting the appellant for the offence under Section 302 RPC and sentencing him to life imprisonment and a fine of Rs. 500/-.
2. The prosecution story briefly stated is that the deceased Kuldeep Singh and the appellant Amarjeet Singh, were both married to two sisters of the complainant Harcharan Singh and had come to their in-laws house on 17th November, 1986. The appellant was accompanied by his wife also but the deceased had not brought his wife along with him. On 18th of Nov. the deceased borrowed a gun from a neighbour and went out for hunting. He returned to his in-laws house in the evening. The appellant also stayed in the in-laws house for the second day also. On 19th of Nov. the deceased as also the appellant went for hunting in the morning and returned to their in-laws house by about noon. After sometime the appellant left the house carrying the gun presumably for hunting purposes. The complainant met him outside the house and told him to have his lunch first before going out. The appellant felt offended and threatened the complainant. On seeing the behaviour of the appellant, the complainant went inside the house and asked the deceased as to why he has given the gun to the appellant. The deceased immediately got out and called the appellant requesting him to return home. The appellant did not oblige him and asked the deceased not to follow him. When the deceased persisted in following him, to get him back, the appellant warned him in doing so, as otherwise he may open fire at him. The deceased however did not take the appellants threat seriously and wanted to go near to him for getting him back. This infuriated the appellant and he opened fire at him hitting his chest. The deceased fell down and soon after collapsed. In the meanwhile the complainant with the help of some of the prosecution witnesses overpowered the appellant. They arranged a matador and look the dead-body of the deceased as also the appellant to the police station.
3. The police after conducting the investigation challaned the appellant in a Court of law. He was committed to the Court of Sessions Judge, Kathua to face the trial. He was charged for the offence under Section 302 RPC. He pleaded not guilty to the charge.
4. The learned trial Court has in all examined 14 prosecution witnesses, including four eye-witnesses, Harcharan Singh (first informant) Gurcharan Kour, the wife of the appellant, Sohan Singh and Rajinder Singh. The statement of medical witnesses including the Scientific Officer have also been recorded.
5. After recording the prosecution evidence, the appellant has been examined in terms of Section 342 Cr. P. C, and the said evidence put to him. He has admitted that on 17-11-1986 he along with his wife had gone to the in-law's house, where the deceased, his brother-in-law, had also arrived. He has also admitted that the deceased had borrowed a gun from the neighbour on 18-11-1986 and gone for hunting. He has also admitted that on 19-11-1986 he also accompanied the deceased when they went for hunting and returned together to the in-law's house by about noon. He has however denied the knowledge of other evidence recorded against him.
6. The learned trial Court has also examined three witnesses produced by the appellant in his defence.
7. We have heard the learned counsel for the parties at great length and have also examined the record thoroughly.
8. We need not reiterate the evidence of prosecution or defence witnesses in our judgment, in this appeal. However we have scanned their evidence from all aspects in order to appreciate its value for coming to a true conclusion.
9. The complainant Harcharan Singh is the brother-in-law not only of the appellant but of the deceased also. He has given a true account of the occurrence without missing any word. His evidence cannot be discredited on account of his close-relationship with the deceased. He has the same relationship with the appellant also. He has suffered on both counts. One of his brother-in-law: has been killed and the other held guilty for the same. He has faced a tough and lengthy cross-examination but has emerged as a truthful witness. In our opinion his evidence deserves full credit of a truthful witness despite his relationship.
10. The same is the case with PW Sohan Singh who is the younger brother of the complainant. He also deserves full credit of, a truthful witness.
11. The PW Gurcharan Kour is the wife of the appellant who has fully corroborated the prosecution case.
12. The learned counsel for the appellant has tried to tarnish the evidence of this witness on the ground that as wife she was not expected to depose against her husband. According to him she has been inimical towards her husband as is reflected in the FIR as also in the evidence of the same PWs.
13. We have thoroughly examined the evidence of this witness as regards her alleged cold relationship with her husband. It has no doubt come in her evidence that the appellant was not treating her well all the same they were putting on nicely. It appears that due to unfair treatment at the hands of the appellant, the witness was to some extent unhappy with her husband, but it was not bad to the extent of animosity. We cannot be oblivious of such marriages which do not prove very happy for the couples but all the same they pull on like this till the last. Moreover the witness is already the mother of the child of the appellant and there is no reason for her to ruin her husband's life in the jail. Her evidence does not appear to as tainted with animosity though she has candidly stated that she was not being treated fairly by the appellant.
14. In any case we have kept all probabilities in our mind while appreciating the evidentiary value of statement of this witness. She is not the only eye- witness in the case and the prosecution story is not solely based on her evidence. There are other eye- witnesses also and we have judged their evidence jointly and severally to come to a true conclusion. Suffice to say that despite all discrepancies in her statement, she, in our opinion, is a truthful witness. She could have easily omitted to narrate her cold- relationship with her husband, had she intended to do so. The fact of the matter is that she has stated everything good or bad, leaving it to the Court to test her veractiy. Merely because she is the wife of the appellant or that she was not having a very happy relationship with her husband, would not discard her evidence if she actually has seen the occurrence.
15. As regards the evidence of PW Rajindcr Singh, he also is a truthful witness, and has neither omitted nor added a word to whatever he has actually seen on the spot. He has seen the appellant going with a gun and the deceased following him. Simultaneously he heard a gun fire and saw the deceased having fallen on the ground and the appellant being overpowered by the complainant.
16. The medical witness Dr. Chowdhary who has conducted the postmortem on the dead body of the deceased has opined that the death of the deceased was due to shock as a result of haemorrhage caused by the gun shot injury.
17. According to Dr. Bhagat, the Scientific Officer, who has examined, the gun as a weapon of offence, as also one fired 12 Bore K.F. special cartridge ease, the said gun was found in normal working condition, which had been fired through, prior to its receipt in the laboratory and the fired cartridge case had been fired from the said gun.
18. As regards other prosecution witnesses, they pertain to seizures etc., and need not be discussed by us in this judgment. We have however minutely appreciated their evidence.
19. After giving our anxious consideration to all the facts and circumstances of the case, we have come to the conclusion that the death of the deceased has been caused by the gun shot fired by the appellant.
20. However, the question is whether the appellant has committed the offence of culpable homicide as defined in Section 299 RPC of the offence of murder as defined in Section 300 of the RPC.
21. Section 299 says that whoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
22. Section 300 says that except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or
Secondly :- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or:
Thirdly:- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or.
Fourthly:- If the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
23. In the following cases of exceptions, the culpable homicide does not amount to murder:-
1) Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistakes or accident.
2) Culpable homicide is not murder as the offender, in the exercise in good faith of the right of private defence of person or property....
3)...
4) Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of pasion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
5)...
24. Now adverting to the facts of the instant case, admittedly the appellant and the deceased were brothers-in-law and had good relationship with one another. Even on the day of occurrence they had together gone out for hunting without any ill-will against one another. They returned to their in-laws house by noon, and with the consent of the deceased at about 1 p.m. the appellant took the gun to go out once again for hunting. Soon thereafter suddenly the situation changed when the complainant asked the appellant to go out after taking the meals. On his refusal to do so the complainant approached the deceased for taking the gun back from the appellant. On this the deceased went out and requested the appellant to return home. When he did not oblige him, the deceased wanted to reach him in order to take the gun back from him. The appellant felt offended and warned the deceased not to approach him. The deceased did not take it seriously and went ahead to reach the appellant, who fired at him, resulting in his death.
25. This all shows that the appellant without any premeditation in the heat of passion, upon a sudden quarrel, opened fire at She deceased as a result of which he died.
26. The act of the appellant is, therefore, covered by 'Exception Four' of Section 300 RPC, which is culpable homicide not amounting to murder.
27. Punishment for culpable homicide not amounting to murder is provided in Section 304, RPC which is reproduced hereinbelow:-
'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 caused is done with the intention of causing death,
or of causing bodily injury as is likely to cause death; or with the 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.'
28. The learned trial Court has found the appellant guilty for the offence under Section 300 RPC (i.e. murder) and sentenced him to undergo imprisonment for life as provided under Section 302 RPC.
29. In our opinion the appellant is not guilty for the offence of murder as defined in Section 300 RPC. The offence of culpable homicide not amounting to murder as defined in Section 299 RPC is brought home to the appellant, which is punishable under Section 304 RPC. No doubt the act of the appellant has caused the death of the deceased beyond any reasonable doubt, but causing of every death does not amount of murder.
30. In these circumstances of the case, we alter the conviction of the appellant from the offence off murder to the offence of culpable homicide not amounting to murder. We convict him of the offence as defined under Section 299, RPC and punishable under Section 304, RPC, and sentene him to undergo rigorous imprisonment for ten years. He is also sentenced to a fine of Rs. 500/-. In default of payment of fine, he shall undergo three months simple imprisonment. Warrant of imprisonment shall stand altered accordingly.
31. In view of the fact that this Court has not upheld that conviction and sentences of the appellant for the offence punishable under Section 302, and we have convicted him for the offence under Section 304, RPC and sentenced him to undergo rigorous imprisonment for a period of ten years only besides fine, the reference made by the learned trial Court for confirmation of the sentence of life imprisonment has been rendered infructuous.
32. The appeal file shall be consigned to the records. The original record shall be remitted back to the learned trial Court.
33. A copy of this judgment shall be furnished to the appellant free of cost through the Superintendent Central Jail concerned.