Hakim Imtiyaz Hussain, J.
1. This criminal first appeal is directed against the judgment and order dated 8.7.2004 and 12.7.2004 in case FIR No. 106 of Police Station Shergarhi, Srinagar State v. P. Parshotam (File No: 450/B of 2001) of 2nd Additional District and Sessions Judge, Srinagar by means of which he has convicted the appellant P. Parshotam under Section 302 RPC and has sentenced him to life imprisonment (simple) besides a fine of Rs. 5,000/- has also been imposed on him.
2. The trial Court too has made a reference for confirmation of the sentence passed by him against the appellant being Cr. Reference 32 of 2004.
Background facts in a nutshell are as under:
3. The appellant is charged of having murdered two of his colleagues namely Constable driver D. Naginder Redy No. 91313411 and constable driver Om prakash No. 941370977. The appellant as well as the deceased were working as constable drivers in the 122 Bn. CRPF. At the time of occurrence they were posted at the Headquarter of the Bn. at M.T. Indoor Stadium, Srinagar. It is alleged that on 15th October, 2001 at about 8.50 P.M. when all the three were sitting together some altercation took place between the appellant and deceased Naginder Redy. Om Prakash who was also present there intervened, that the appellant turned violent and took 9MM carbine of Constable Om Prakash, bearing No. 15221125, with Butt No. 134, into his hands and fired upon constable Driver Om Prakash and Naginder Redy with intention to kill them. Om Prakash died on spot while as the other constable Naginder Redy died on the way to hospital.
4. An FIR 106/01 Under Section 302 RPC was registered about the incident in Police Station Sheergari. Station House Officer of the Police Station started the investigation. He inspected the spot, prepared the site plan of the place of occurrence, seized the weapon of offence and took other procedural steps including recording of the statements under Section 161 Cr. P.C. and sending the dead bodies for post-mortem. The appellant was arrested and on completion of the investigation a challan was filed against him before the Court of Chief Judicial Magistrate, Srinagar who committed the same to the Court of Principal District & Sessions, Judge Srinagar on 26.11.2001, from where the case was sent to the Court of 2nd Addl; Session Judge for disposal under law.
5. The trial court framed the charge against the appellant under Section 302 RPC on 26.11.2001. The appellant denied the charges and pleaded his innocence. Therefore, he was put to trial. The prosecution examined as many as 12 witnesses including the FSL experts and the Investigating Officer. From the evidence led by the prosecution the trial court found that the offence under Section 302 RPC was proved against the appellant. The Court, therefore, convicted the appellant under the offence. The Court in this behalf observed as under:
From the discussion made above and the evidence on record I came to the conclusion that the prosecution has by clear, cogent and clinching evidence proved beyond any shadow of doubt that the firing at the deceased, Naginder Redy, was made by the accused Prashotam in the evening of 15th of October, 2001 at 9 P.M. with automatic carbine gun in the barrack they were residing in at Bakshi Stadium, the Headquarters of CRPF Btn. As a result of which Naginder Redy suffered bullet injuries who in consequence thereof died later on. The other deceased person, Omprakash, who at that time was sitting on the cot behind Naginder Redy also fell victim to the bullets of accused and got killed instantaneously, as such accused has committed murder of both. Therefore, accused is held guilty for the commission of offence of murder and convicted under Section 302 RPC.
6. The court heard the parties in regard to quantum of punishment and vide its order dated 12.7.2004 found that the punishment of life imprisonment was an adequate punishment. Accordingly the appellant was sentenced to the life imprisonment (simple) besides a fine of Rs. 5,000/- was imposed upon him. The Court further directed that in default of payment of fine the appellant shall suffer further imprisonment for a period of one year which shall run concurrently with the substantive punishment. The Court in this behalf observed as under:
I heard the convict also who disclosed before me that he has minor children and is the sole bread earner of the family. He showed me the photographs of his children which apparently and took minors and as per assertion of the convict are under education in schools so in case maximum punishment i.e. death is awarded to him that will be a shock to his children and set back to their career. The prosecution did not bring any previous criminal record of the convict in the notice of the Court. The evidence in the case shows that the crime has been committed by him under sudden impulse nut not in a preplanned manner or cruel and in cold blooded way The convict is not a menace to the society. So the mitigating factors for giving him minimum punishment of life imprisonment exist in his favour. It is mentioned here that number of death caused in the incident does not make it a re-arest of race case. Life imprisonment is not less harsh, for it causes mental worry to the convict and burns him for entire life. Hence in view of the circumstances the case and the legal position, the convicted person is sentenced to life imprisonment (simple) and a fine of Rs. 5000/-. In default of payment of fine shall suffer further imprisonment for a period of one years, which shall run concurrently with the substantive punishment.
Office shall send the proceedings along with judgment and order of sentence to the Registrar Judicial Srinagar for submitting the same before the Hon'ble High Court of J&K; for confirmation of sentence.
7. Aggrieved of the conviction and the sentence passed by the trial Court the appellant has, through the medium of the present appeal, assailed the same on various grounds. It is alleged that the accused has not committed any offence and that he specifically denied the charge as he was not present on spot at the time of occurrence. Since there was denial of knowledge of occurrence, it was the duty of the prosecution, contends the appellant, to establish the guilt against him beyond any shadow of doubt. The appellant alleges that there is contradictory evidence on file. The trial Court has not properly appreciated the evidence led by the prosecution and has not considered the case in its proper perspective. It did not consider the pleas raised by the appellant before it. It is further stated that there was no intention to kill and that even the alleged weapon of offence has not been seized in a proper manner. The appellant has pointed out various other defects, which according to him cast a doubt on the prosecution case. According to the appellant the court has not appreciated the case properly but has convicted the accused on the basis of insufficient evidence.
8. Per contra Mr. Rathore learned Counsel for the State submitted that the trial courts judgment impugned in the present appeal is in order and needs no interference.
9. Heard. We have considered the matter.
We have gone through the record of the trial Court. We have also perused the evidence led by the prosecution before the trial Court.
10. The prosecution has examined as many as 12 witness in support of the charge namely E. Nirmal Raj, Pretam Singh, Harjinder Pratab Singh, Rajoo Agoo, A.P. Narayan, Badresh Kumar, Jasbeer Singh, Kukum Singh, Ajay Kumar, Dr. Roman Khan, Forensic expert S.M. Shafi and Azad Ahmed, Inspector. The relevant extracts of the statement of the prosecution witnesses have been reproduced by the trial Court in a detailed judgment impugned in the present appeal.
11. On going through the statement of the prosecution witnesses we find that the witnesses namely Rajoo Agoo, Pretam Singh, Harjinder Singh and Kukum Singh are the eye witnesses. PW Rajoo Agoo has witnessed the incident and has given a detailed account of the same. He states as under:
Rajoo Agoo as per his version he was very much present when the accused fired on the deceased person in the evening of 151h of October, 2001, He alongwith Om prakash had their meals in the evening at 8 P.M. and after taking the meals both went to the recreation room wherefrom they returned to their barrack at 8.30 p.m. for going for sleep. Accused Prashotam and deceased N. Redy were in the barrack that time. Omprakash deceased instead of occupying his own cot sat on the cot of N. Redy and laid down in it behind him. While as accused Prashotam sat on the cot of Pretam Singh. That cot was adjacent to the cot of N. Redy. Accused and deceased Naginder Redy started talking in their language. Meanwhile, accused took up a carbine which Omprakash and before going to sleep kept on a wooden table lying by his side and fired at N. Redy from a distance of three feet. The bullets fired pierced through the chest of N. Redy who suffered bullet wounds and fell on the ground. Omprakash sleeping behind N. Redy also fell victim to the bullets of the accused. The bullets hit him on his hand and was wounded. He died instantaneously. When Pretam Singh stood up on his cot, accused pointed the carbine towards him. But Pretam Singh, appealed him with folded hands not to kill him. Meanwhile, the witness, Rajoo Agoo came behind the accused and caught-hold of the accused and snatched the carbine from him. Then the witness came out running from the barrack and raised alarm. First of all Har-vinder Kumar met him and witnesses narrated him the occurrence. Then other security staff members residing in the adjacent bunkers came there and saw injured Redy grousing in death pain. While as Omprakash had breathed his last. Accused in the meanwhile left the barrack to run-away from there. Then the witness and the other security men boarded the injured in a van and sent him to Hospital, but he collapsed on the way.
12. The statement of Rajoo Agoo is corroborated by the statements of other prosecution witnesses namely Pretam Singh, Kukum Singh, and Harjinder Singh. All the four witnesses have in one voice supported the prosecution story and have stated that it was the appellant who fired upon the two drivers namely Naginder Redy and Om Prakash. The statements of these eye witnesses get supported and corroborated by the FSL experts and the post mortem report.
The appellant has not produced any witness in defence.
13. From the statements of these witnesses it is established beyond any shadow of doubt that it was the appellant who fired upon his two deceased colleagues and killed them and has thus committed the offence. The trial Court too has considered these statements and has observed as under:
The evidence furnished by the prosecution in a fair and straight forward manner has absolutely proved the prosecution charges against the accused. Though the defence counsel in cross examination of the witnesses tried his utmost to shatter their credibility but has not succeeded in eliciting anything material from them which could support the defence. It must be recorded here that two witnesses Rajoo Agoo and Pretam Singh were very much present there in the barrack at the time of incident. When they flattened on their beds to sleep and took quilts on their facts but before they could go dead to the world the accused started firing. On hearing the sound of first shot, they removed quilts on their facts and saw the incident with eyes. When Pretam Singh protested, the accused pointed his carbine towards him and in the meanwhile Rajoo Agoo came behind accused and snatched the gun from him. The testimony of these two witness is more that sufficient proving i n unequivocal terms the guilt against the accused. Full corroboration from other witnesses has also come lending proof that the accused fired gunshots at deceased. No contraction is found in the witness statements. No contradictions are found in the statements f the prosecution witness Pretam Singh and Badresh Kumar. Pretam singh is eye witness to the whole episode and has made statement in a straight forward manner while as Badresh Kumar has gone to the place of occurrence after the incident and has made clear breast of what was seen by him and what was spoken by other at the relevant time.
14. On consideration of the matter, we find the reasoning given by the trial Court is convincing and that the trial Court has properly appreciated the evidence led by the prosecution to arrive at the conclusion.
15. The learned Counsel appearing for the appellant would argue that the trial Court has not taken into consideration the appellants plea about his innocence. He had specifically pleaded that he reached the place after the occurrence and therefore, was not guilty of the act. We find ourselves unable to accept the contentions of learned Counsel on the ground that four prosecution witnesses have seen the appellant committing the crime with their own eyes and that there is no rebuttal to the evidence of these witnesses. On going through the statement of all the four witness, we find the evidence given by the witnesses is cogent and reliable and there are no ground to disbelieve these witnesses.
16. It was next argued by the learned Counsel that the nature of injuries due to which the deceased have died were such which could not have been caused by the appellant He would further argue that the prosecution has not established that the injuries were caused with the weapon with which and in the manner in which they are alleged to have been caused. The learned Counsel contends that in such circumstances the prosecution version cannot be accepted. In support he relies on Mohinder Singh v. The State : [1950]1SCR821 where the Supreme Court held:
In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of that case.
17. Here again we find no force in the contentions in view of the cogent evidence of the eye witnesses which is supported by the evidence of the ballistic expert. We do not find there is any doubt in the prosecution case on this point. From the statement of prosecution witnesses it appears that the appellant fired upon the deceased which became the cause of death of the two constables. The post mortem report shows that the death was caused due to multiple gun shorts injuries. Deceased Om Prakash as per the medical opinion had received bullet wounds on his head, chest, stomach, bladder and intestine while as deceased Naginder Redy had received injuries on shoulders, neck and in lower region. In the opinion of the doctor who has been examined by the prosecution, the deceased had multiple gun shot injuries resulting in their death and that the wounds gave clear indication of cause of death. In view of the medical evidence brought on file we find no force in the arguments of learned Counsel.
18. Learned Counsel for the appellant would next argue that there is contradiction in the statement of the investigating officer as it is not clear from the police report or the statement of the investigating officer as to when he received the information about the offence. We find no substance in the arguments of the learned Counsel. The learned trial Court has duly considered this plea of the appellant and has in this behalf observed as under:
It may be recorded here that under Section 154 of Cr.P.C. FIR is normally made at the police station and after reducing the substance thereof, in the daily diary register investigation starts. The provision is directory in nature but not mandatory. Therefore a police officer may also outside the police station obtain reports about the commission of cognizable offences, however, the investigation can be taken up by him only after reducing the substance of the information in the daily diary register and the maker of the report signs the same. In the present case the first informant had after the incident of firing first informed SHO/IO by telephonic message and on receiving the information he visited the spot of occurrence. There he received the written report from Commandant Nirmal Raj. The I.O. then went back to the police station alongwith informant and got the report lodged through commandant then I.O. again went to the stadium and started the investigation. On perusal of the statement of the Investigating Officer given by him in examination in chief, the witness does not appear to have said that he himself received the report in police station rather, he stated 'that a report was received in police station Sheergari from CRPF commandant Btn. 122 on 15th of October', whereafter he started investigation. The first informant has in his deposition indicated that the investigating officer on being informed by him on telephone about occurrence, came to stadium whereafter he went to police station and lodged the report. So the import of the wording of I.O. in examination in chief is that the report was lodged at Police Station hence no defect is traceable in the statement of I.O. regarding lodgment of FIR. It may be mentioned here that the purpose of FIR is to give earliest information of the details of the incident to the police officer and the involvement of the actual offender and to set the criminal law in motion, so that fabrications are not made by the reporter and nobody is falsely implicated later. In cross-examination of the prosecution witness the defence counsel has not elicited anything from them that any fabrication was made to falsely implicate the accused. Therefore, no fault is found with lodgment of FIR and no contradiction exists in the statement of I.O. Even if it is admitted for the sake of arguments that there is a discrepancy made by I.O. regarding the place where report was received, that does not in any way cast any doubt about the FIR because it is a minor discrepancy and need not be given much importance. It is the law that the discrepancies, which do not shake basic version of the prosecution, should not be given much importance by the court while appreciating the evidence. The accused person is a member of the battalion in question and no enmity was there against the accused person so it is unnatural that the security staff of the battalion would lodge a false case against the accused. Hence argument of defence counsel is not well founded.
19. We find due reasons have been given by the trial Court to reject the contention of the appellant. We could not find any ground to interfere with the findings of the trial Court in this behalf.
20. It was next argued by the learned Counsel for the appellant that from the prosecution case it appears that there was some altercation between the appellant and deceased constable Naginder Redy due to which the appellant got furious and committed the crime, thus it was a case of sudden quarrel as such would fall within 304(II) and not under Section 302 RPC. He has placed reliance on R. Martindale (1966) 3 ALL ER 305, Sukhdev Singh v. Delhi State : 2003CriLJ4315 and Bhanu Pratap Tewari v. State of U.P. 2002 Cr. LJ 1243 (All).
21. We have considered the arguments and have gone through the statement of the appellant recorded by the trial Court at the charge stage as well as under 342 Cr. P.C. We find that the appellant's case has been of a total denial right from the beginning. He has pleaded not guilty and has categorically stated that he had no knowledge of the offence. Such a plea of provocation on the part of deceased Naginder Redy was taken by the defence before the trial court during arguments. The court has rejected the same on the following reasons:
The contention of the learned defence counsel Mr. Reyaz Khawar that there was provocation is not well founded because no such defence has been taken by the accused. A comment made by one of the prosecution witnesses namely Nirmal Raj that the enquiry made by the court of enquiry constituted by them found that the cause of incident was provocation is wiped out by other witnesses when the defence counsel tried to evoke from them by suggesting questions that Naginder Redy was provocative. They refuted his questions and said he was never so. More so, the defence counsel cannot rely on the casual comment made by one of the prosecution witness, without making it a ground of defence and proving the same by evidence. It is in evidence tat some altercation had taken place between deceased N. Redy and accused but what they talked and what was the subject of controversy is not known to any person because the witnesses could not understand their language. Accused has also remained mum in his statement before the court which infers that it was only a squabble i.e. a trifling controversy. Had it been something provocative the accused would have come with a defence against the prosecution. There is no indication in the statements that the deceased Naginder Redy was in aggressive mood. I have earlier discussed that no contradiction exists between the statement of Pretam Singh and Badresh Kumar.
22. We find sufficient reasons have been given by the Court in answer to the plea.
In R.V. Martindale (1966) 3 All E.R. 305 the appellant, a soldier, was charged with the murder of a fellow soldier. One of the defences which he put forward was that of provocation. It was held that the defence of provocation was not necessarily excluded by the existence of intent to kill or to inflict grievous bodily harm, but might apply when such an intention arose from sudden passion, involving loss of self-control, by reason of provocation.
In Sukhdeu Singh v. Delhi State : 2003CriLJ4315 the accused during course of scuffle took out his pistol and fired at deceased which hit on thigh of another person standing nearby and the accused fired again which hit the deceased. It was held that the gunshots fired by accused cannot be said to be the result of grave and sudden provocation but were fired in course sudden quarrel.
23. In Bhanu Pratap Tewari v. State 2002 Cr. L.J. 1243 death of a lady was caused by pistol shot fired by her husband, the court found that there was possibility of husband, the court found that there was possibility of husband using firearm in a fit of rage owing to quarrel with deceased was not ruled out.
In Pappu in Sukhdev Singhs case (supra) the Apex Court considered the issue in light of the tests laid down by the Privy Council in Philips U.R. (1969 AC 100) and observed that the two questions which require affirmative answers in this behalf are as follows:
1. would the reasonable man have lost his self-control and
2. would he then have retaliated as the offender did?
24. In the present case the Court could have appreciated the pleas raised had the appellant come forward with a specific plea in this behalf and stated as to what actually happened at the time of occurrence and what was the cause of provocation, due to which he acted in such a manner. It has come in the evidence that there was some exchange of words in Telgu language. The prosecution has not said as to what were the actual words used. The appellants who now wants to take benefit of the alleged provocation has also not disclosed as to what were the words used by deceased Naginder Reddy which used caused provocation to him, to enable the Court to come to the conclusion whether the words were such that a reasonable man would have lost his self-control and would have then retaliated as the offender did.
25. The learned Counsel seeks benefit of exception 4 to Section 300 under which culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
26. In Pappu v. State of Madhya Pradesh 2006 Cr. L.J. 3640 the Apex Court while dealing with the cases of murder caused in sudden fight observed:
The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the First Exception after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of exception I there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1: but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been stuck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by is own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be sown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage.'
It cannot be laid down as a rule of universal application that whenever one blow is given, Section 302, IPC is ruled out. It would depend upon the weapon used, the size of it in some cases, force with which the blow was given, part of the body it was given and several such relevant factors.
27. Thus to claim the benefit of the exceptions it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. As noticed above no such circumstances have been brought on record due to which it is not possible to appreciate and accept the argument.
28. Most important element of the exception is that there should be a fight. Where there is nothing in the nature of fight and there is nothing to show, as in the present case, that the deceased did anything to invite the attack on themselves by needlessly provoking the accused, the accused cannot be allowed to take the benefit of the exception. Simply because there was altercation without any evidence as to how it started and as to who was the aggressor, exception 4 to Section 300 cannot be invoked. It is not every slight provocation which will reduce the crime from murder to culpable homicide not amounting to murder. The wording 'in a sudden fight' and 'upon a sudden quarrel' obviously means more than verbal altercation. It is for the accused to show that he acted solely out of the provocation engendered by the heat of a sudden quarrel followed by a sudden fight. Onus to show it is on the accused under Section 105 Evidence Act. As noticed above we find the appellant has neither taken the plea in his defence during his examination or cross examination nor has established it in evidence. We also see no justification for appellant committing such a brutal act. In view of the facts it cannot be said that the appellant has not taken undue advantage or not acted in a cruel or unusual manner. A man who fires at another person with a 9 MM carbine and inflicts injuries on vital facts of his body by firing more than one shot must be presumed to intend the natural and probable consequences of his act. He cannot be heard to say that he has not done this 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.
29. In the circumstances we find no ground is made out to interfere with the conviction passed by the trial Court against the appellant. We have examined the reasons recorded by the trial Court while awarding life imprisonment. We find the same as just and convincing.
30. The appeal filed by the appellant is, therefore, dismissed and the conviction and sentence passed by the trial court is upheld. We accordingly confirm the same and sent back the record to the trial Court for further proceedings as required under law.
Order accordingly