Gudda @ Vijay Patel, and anr. Vs. the State of Madhya Pradesh. - Court Judgment

Excerpt:
[aftab alam ; r.m. lodha, jj.] - narcotics drugs & psychotropic substance act, 1985 - sections 8 - prohibition of certain operations -- the suspected narcotic recovered from the appellant was seized under seizure memo, exhibit p.22. the trial court by judgment and order dated 9.11.2005 passed in special case no.4/2005 held all the three accused, including the appellant guilty of offences punishable under sections 8/21(b) of the ndps act and sentenced them as noted above. against the judgment of the trial court, the appellant preferred criminal appeal no.2511/2005 before the high court. the high court dismissed both the appeals by judgment and order dated april 17, 2008. the appellant alone has come in appeal against the judgment of the high court. the present appeal arises out of the judgment dated 10.12.2007 passed by the learned single judge of the high court of allahabad (lucknow bench) whereby the learned single judge has dismissed the tax revision filed by the appellant under section 11 of the u. p. trade tax act (hereinafter referred to as "the act") impugning the judgment dated 14.8.2007 passed by the trade tax tribunal, lucknow rejecting the second appeal of the appellant/assessee. the interest charge on the tax could not have been charged under section 8(1) as the case falls under section 8(1b). as in the present case the tax becomes admittedly payable once it has been held that the tax is payable under the act, the interest would be payable in terms of subsection (1) of section 8 of the act and not in terms of subsection (1b) of section 8 of the act. this court in the case of commissioner of sales tax v. qureshi crucible centre, 1993 supp (3) scc 495 has held that where a dealer fails to pay tax at the correct rate because he claimed not to know the revision in the rate, the dealer remains liable to pay interest at a higher rate, penal rate under section 8 (1) from the date when the tax became due and payable. 1. this judgment will govern the disposal of both the above appeals.2. appellants have filed these appeals against the judgment dated 16.8.2002 passed by viith additional sessions judge, jabalpur in sessions trial no.472/2001 convicting appellant balram patel under section 302 and appellant gudda @ vijay patel under section 302/34 of the indian penal code and sentencing each of them to imprisonment for life with fine of rs.5000/-. in default of payment of fine, further rigorous imprisonment for 6 months.3. prosecution story, as stated in the f.i.r. by rajendra tiwari (pw-1), is that on 14.3.2001, when he and guddu sharma (deceased) were in the house of kanhaiyalal naveriya (pw-5) in barginagar, on the insistence of guddu sharma, they went to the house of accused balram, as guddu had to take money from him. when balram was not found at his house, guddu sharma told to his wife to tell balram that he should return his money otherwise he knew how to recover it. they went back to the house of kanhaiyalal naveriya. while he, m.i.khan, ramkumar (pw-2) were talking, at about 9:00 p.m. balram patel came there shouting, calling guddu sharma out. he was shouting that he had become a big bully, to pressurise his family members, if he had courage he should come before him. hearing this, all the persons came out. balram was wielding a gun. accused gudda patel was also with him. when balram approached towards guddu sharma, he caught hold of his gun and scuffled with him. all the persons tried to intervene and in the course of quarrel, they reached near tirgadda. in the meanwhile, gudda patel took gun from balram and fired it in the air guddu sharma told to them that he would get a case under section 307 i.p.c. registered against them. hearing this, accused balram again took gun from gudda patel and fired at guddu sharma. the shot hit guddu sharma on his chest, he fell down and died. accused persons then ran away. rajendra tiwari then went to police station bargi and lodged first information report ex.p/1. station officer c.r.patel (pw-16) after recording the information in roznamcha reached at the spot and after conducting inquest, sent the dead body of guddu sharma for postmortem examination to medical college, jabalpur where dr. ashok kumar jain (pw-15) conducted postmortem examination and gave p.m. report ex.p/17. before the postmortem examination, the dead body of guddu sharma was examined by assistant surgeon of barginagar viz. dr.a.k.agnihotri (pw-6). report ex.p/13 was prepared. seized articles were sent to forensic science laboratory, sagar for examination and reports ex.p/21, p/22 & p/23 were received. after completion of investigation, charge sheet was filed in the court and the case was committed for trial.4. trial court framed the charge under section 302 of the indian penal code against accused balram and under section 302/34 of the indian penal code against gudda patel. both the accused abjured their guilt and pleaded innocence. in the statement recorded by court under section 313 cr.p.c. accused balram contended that prosecution witnesses were relatives of deceased, therefore, they spoke false against him. in fact while he was returning from his field, in front of the house of kanhaiyalal naveriya, deceased stopped him and demanded money. when he did not give money, at that time, guddu sharma abused and assaulted him. in the scuffle, they went ahead of the house. in the course of altercation, deceased picked him up and dropped on the ground due to which suddenly his gun went off accidentally and hit the deceased.5. to substantiate its case, prosecution examined number of witnesses, however, relying mainly on the evidence of kanhaiyalal (pw-5), ku.vineeta naveriya (pw-7), lokesh naveriya (pw-12) as eyewitnesses and on the medical evidence of dr. a.k.agnihotri (pw-6) and dr. ashok kumar jain (pw-15), trial court held the accused persons guilty of the offences and convicted and sentenced them as mentioned above. aggrieved by their conviction and sentence, accused have filed these appeals.6. we have heard the learned counsel for the parties.7. it was no longer disputed that deceased guddu sharma died of gun shot injury. it is also reflected from the evidence of dr. a.k.agnihotri (pw-6) that body of guddu sharma was brought to him by constable iqbal hussain. there was a wound on the left side of his chest. it appeared that it was a gun shot wound. his report is ex.p/13. dr. ashok kumar jain (pw-15) who was posted as assistant surgeon in medical college, jabalpur deposed that he conducted postmortem examination of the body of guddu @ basant sharma. he found one round gun shot wound, 4 cm in diameter on the left side of chest of the body. margins of the wound were tattooed. 3rd 4th & 5th ribs were fractured and there was an exit wound on the left shoulder on scapular region. on internal examination, he saw laceration of both the lobes of lung. pleura was ruptured. pericardium on the left side of heart was also ruptured. there was one through and through laceration in the left ventricle of heart. entry wound and exit wound were connected by a track. a plastic cap of cartridge was also found in the soft tissues of pleura. in his opinion, these injuries were caused by gun shot which was fired from a very close range. the cause of death was shock to the heart. his postmortem examination report was ex.p/17. investigating officer c.r.patel (pw-16) also stated that he conducted the inquest and prepared memorandum ex.p/12. he kept the dead body in the jeep and sent the same for postmortem examination to medical college, jabalpur. there was a gun shot wound on the left side of chest of the body. a wad like article was thrusted in the wound. it was, thus, clearly evident that deceased guddu sharma died of gun shot injury.8. learned counsel for the appellants, however, submitted that the findings which have been recorded for convicting the appellants are bad in law, perverse and based on no evidence and are contrary to the material on record. trial court has gravely erred in placing implicit reliance on the evidence of relative eyewitnesses and has not properly appreciated the evidence on record and has committed error in convicting the appellants. learned counsel for the state, on the other hand, supported the findings recorded by the trial court and contended that no interference was called for in these appeals.9. we have gone through the entire evidence on record.10. complainant kallu @ rajendra tiwari (pw-1), ramkumar patel (pw-2) and shankarlal (pw-4), who were examined by the prosecution as eyewitnesses, did not support the prosecution case, therefore, they were declared hostile. the case, therefore, mainly rests on the evidence of eyewitnesses viz. kanhaiyalal (pw-5), ku. vineeta (pw-7) and lokesh (pw-12).11. kanhaiyalal (pw-5) deposed that in the evening of 14th march, 2001 at about 6:30 p.m., guddu sharma and kallu tiwari had come to his house at barginagar. after sometime guddu sharma left his house saying that he would go to the house of accused balram for applying vermilion (tika) to him. after about half an hour he came back. while they were sitting, at about 8:45 p.m. balram patel came in front of their house and extended threats to guddu sharma. he shouted calling him out of the house. when they went out of the house, they saw balram wielding a gun. accused gudda patel was also with him. guddu sharma grabbed the barrel of the gun and indulged in scuffle with him. thereafter, guddu sharma assaulted accused balram patel with fists and kicks and snatched his gun. balram then apologised whereupon guddu returned his gun. thereafter, when he and guddu sharma proceeded back to his house they heard sound of gun fire. on looking back, they saw that accused balram pointed his gun towards guddu and fired it. the shot hit on the left side of chest of guddu. guddu fell down. kanhaiyalal further deposed that accused also put barrel of the gun on his neck, but the gun was empty. thereafter, both the accused ran away. kallu tiwari (pw-1) went to police chowki to lodge the report and informed the wife of deceased.12. learned counsel for the appellants urged that kanhaiyalal (pw-5) was the brother-in-law of deceased. he changed the story before the court and attributed no act to accused gudda patel. his evidence was inconsistent with the medical evidence, therefore, trial court committed error in placing reliance on his evidence. it is true that in his evidence, he merely deposed that accused gudda patel was present at the time of incident, however, he did not assign any act to him to indicate that he shared the intention of accused balram patel. he denied that accused gudda patel had snatched gun from balram patel and fired at the deceased. however, his evidence was clear with respect to balram patel that he fired at deceased. in fact it has not been disputed by the learned counsel for accused balram that deceased suffered gun shot injury by the gun wielded by balram, but,according to him, that was an accidental fire when deceased himself scuffled with him and threw him on the ground.13. from the evidence of kanhaiyalal (pw-5), it is revealed that relations between deceased and accused balram were quite cordial before the occurrence. there was absolutely no dispute between them even before the occurrence. deceased had told to kanhaiyalal about his going to the house of accused for applying tika to him as it was the day of "rang panchmi" celebration. there appeared no apparent cause why accused balram should have come to the house of kanhaiyalal and extended threats to deceased. it appears strange that kanhaiyalal did not ask the deceased as to why balram abused him and extended threats to him. the facts as narrated by kanhaiyalal appeared strange. it is quite strange that deceased came out of the house and suddenly grabbed the barrel of the gun wielded by accused. there was a scuffle when guddu sharma held the barrel of gun. it was quite easy for balram patel to have fired the gun when deceased held the gun from the barrel side, but he did not do it even in the circumstances when deceased assaulted accused balram and went about 20 metres away from the house where the quarrel started. according to kanhaiyalal (pw-5), the place of incident was about 86 metres away from his house. deceased and balram scuffled for about 20 metres distance then deceased felled accused balram to the ground and snatched his gun. the quarrel was then pacified and deceased returned the gun to accused balram. when both of them parted and proceeded in different directions, a gun shot was fired. when they looked back, accused balram who was standing at a distance of about 20-25 paces fired the gun at deceased. learned counsel for the appellants contended that this part of the evidence of kanhaiyalal was belied by the medical evidence of dr.a.k.jain (pw-15), who conducted the postmortem examination. dr.a.k.jain categorically stated that the gun shot injury found on the body of deceased was caused by firing from a very close distance. even the plastic cap of cartridge was found in the soft tissues of the entry wound. in para 7 of his evidence, dr. jain clarified that at the time of fire either the barrel of the gun must be in contact with the body or about 6" away from it. he had mentioned this fact in his report ex.p/17. according to kanhaiyalal, accused had fired gun from a distance of about 20-25 paces i.e. 60-70 feet from the deceased. in our opinion, this is a material inconsistency between the evidence of kanhaiyalal (pw-5) and the medical evidence. from the postmortem examination report ex.p/17, it is revealed that there was a rounded wound of gun shot 4 cm in diameter. it had tattooed margins and underneath ribs 3rd 4th & 5th were fractured. these circumstances clearly indicate that the gun shot injury was caused to deceased from a very close range, in any circumstances, not from a distance of about 40-50 feet.14. evidence of kanhaiyalal (pw-5) that accused balram fired gun at deceased finds support from the evidence of ku. vineeta naveriya (pw-7) and mahendra tripathi (pw-8). though vineeta naveriya stated that there had been an altercation between deceased and accused balram and accused gudda accompanied balram, but she admitted that when she was inside the house she heard the sound of firing. when she went out of the house, she saw deceased lying on the ground. her father i.e. kanhaiyalal told to her that balram shot at guddu. she, however, denied that there was any scuffle between accused gudda patel and the deceased. similar was the evidence of lokesh naveriya (pw-12). according to him, he saw both the accused persons and the deceased quarrelling in front of his house. balram had a gun. all these persons went towards "tiraha". when he was standing in front of his house he heard two sounds of firing. when he went on the spot, he saw deceased lying on the ground. according to him, his father kanhaiyalal told him that balram shot at guddu. though he stated that he himself saw balram firing the gun but this fact was found missing in his police statement ex.d/2. apart from the evidence of aforesaid witnesses, there is evidence of investigating officer c.r. patel (pw-16) who seized an empty 12 bore cartridge from the spot and sent it to forensic science laboratory, sagar for comparison with the gun seized from the possession of accused. according to f.s.l. report ex.p/23, the empty cartridge seized from the spot was fired from article "g" 12 bore gun recovered from the accused. thus, it has been established that deceased died of gun shot injury fired from the gun of accused balram patel.15. it is true that according to dr. ashok kumar jain (pw-15), margins of gun shot wound were tattooed and a plastic cap of the cartridge was found inside the wound which in his opinion indicated that gun was fired from a close range, but at the same time it is established from the evidence of kanhaiyalal that accused went at his house and abused and extended threats to deceased. though it was said that relations between them were cordial but from the first information report lodged by rajendra tiwari (pw-1), it is indicated that deceased went at the house of accused balram to get his money back from him and on not finding him at his house, he intimidated his wife that he knew how to recover the same. though kallu @ rajendra (pw-1) disowned the first information report ex.p/1, but admitted his signatures on it. f.i.r. ex.p/1 was proved by the head constable dashrath singh thakur (pw-17). it gives some indication why accused balram patel went at the house of kanhaiyalal in enraged mental condition and abused the deceased. though kanhaiyalal (pw-5) denied that deceased was a person with criminal antecedents, yet it was established by the evidence of head constable laxmi prasad (dw-1), who proved criminal record of deceased by producing copies of crime register (ex.d/4 to d/11) of police station, lordganj that number of criminal cases under sections 307,506,323,452,426,376, i.p.c. etc were registered against him. he was so desperate that he caught hold of the gun of accused and assaulted him by fists and kicks and snatched his gun. it appears that when deceased returned the gun to accused balram, he fired the same at deceased. it seems to us that neither prosecution witness nor accused gave wholly truthful description of the occurrence. it does not stand to reason that accused would go away for about 25 paces then fire. evidence of kanhaiyalal with respect to distance of the deceased from the accused does not appear trustworthy, however, it has been clearly established from his evidence that balram patel fired gun at deceased as a result of which he died. it is revealed from the evidence of kanhaiyalal (pw-5) that immediately before balram fired, his gun was snatched and he was beaten by deceased. in these circumstances, in our opinion, it cannot be held that he had motive to commit murder of deceased. had he intended it, he could have fired at deceased at the very moment he came out of his house hearing his threats. but he fired gun shot at deceased without any premeditation in a sudden fight upon a sudden quarrel, his act, in our opinion, fell within the ambit of exception 4 of section 300 of the indian penal code. therefore, appellant balram patel was liable to be convicted unde section 304 part i and not under section 302 of the indian penal code.16. from the evidence of eyewitnesses, it cannot be held with certainty that accused gudda @ vijay patel shared common intention with accused balram patel.17. for the reasons stated hereinabove:- (i) criminal appeal no.1263/2002 preferred by appellant gudda @ vijay patel is allowed. his conviction and sentence passed by the trial court under section 302/34 of the indian penal code is set aside. he is acquitted.(ii) criminal appeal no. 1569/2002 preferred by appellant balram patel is partly allowed. his conviction under section 302 of the indian penal code and sentence of imprisonment for life is set aside. he is convicted under section 304 part i of the indian penal code and sentenced to rigorous imprisonment for 10 years and to pay fine of rs.5000/-. in default of payment of fine, further rigorous imprisonment for one year. it has been informed that appellant balram is in custody since 15.3.2001. if he has served out the sentence awarded to him, he shall be released, if not required in any other case.

Judgment:
1. This judgment will govern the disposal of both the above appeals.

2. Appellants have filed these appeals against the judgment dated 16.8.2002 passed by VIIth Additional Sessions Judge, Jabalpur in Sessions Trial No.472/2001 convicting appellant Balram Patel under section 302 and appellant Gudda @ Vijay Patel under section 302/34 of the Indian Penal Code and sentencing each of them to imprisonment for life with fine of Rs.5000/-. In default of payment of fine, further rigorous imprisonment for 6 months.

3. Prosecution story, as stated in the F.I.R. by Rajendra Tiwari (PW-1), is that on 14.3.2001, when he and Guddu Sharma (deceased) were in the house of Kanhaiyalal Naveriya (PW-5) in Barginagar, on the insistence of Guddu Sharma, they went to the house of accused Balram, as Guddu had to take money from him. When Balram was not found at his house, Guddu Sharma told to his wife to tell Balram that he should return his money otherwise he knew how to recover it. They went back to the house of Kanhaiyalal Naveriya. While he, M.I.Khan, Ramkumar (PW-2) were talking, at about 9:00 p.m. Balram Patel came there shouting, calling Guddu Sharma out. He was shouting that he had become a big Bully, to pressurise his family members, if he had courage he should come before him. Hearing this, all the persons came out. Balram was wielding a gun. Accused Gudda Patel was also with him. When Balram approached towards Guddu Sharma, he caught hold of his gun and scuffled with him. All the persons tried to intervene and in the course of quarrel, they reached near Tirgadda. In the meanwhile, Gudda Patel took gun from Balram and fired it in the air Guddu Sharma told to them that he would get a case under section 307 I.P.C. registered against them. Hearing this, accused Balram again took gun from Gudda Patel and fired at Guddu Sharma. The shot hit Guddu Sharma on his chest, he fell down and died. Accused persons then ran away. Rajendra Tiwari then went to police station Bargi and lodged first information report Ex.P/1. Station Officer C.R.Patel (PW-16) after recording the information in Roznamcha reached at the spot and after conducting inquest, sent the dead body of Guddu Sharma for postmortem examination to Medical College, Jabalpur where Dr. Ashok Kumar Jain (PW-15) conducted postmortem examination and gave P.M. report Ex.P/17. Before the postmortem examination, the dead body of Guddu Sharma was examined by Assistant Surgeon of Barginagar viz. Dr.A.K.Agnihotri (PW-6). Report Ex.P/13 was prepared. Seized articles were sent to Forensic Science Laboratory, Sagar for examination and reports Ex.P/21, P/22 & P/23 were received. After completion of investigation, charge sheet was filed in the Court and the case was committed for trial.

4. Trial Court framed the charge under section 302 of the Indian Penal Code against accused Balram and under section 302/34 of the Indian Penal Code against Gudda Patel. Both the accused abjured their guilt and pleaded innocence. In the statement recorded by Court under section 313 Cr.P.C. accused Balram contended that prosecution witnesses were relatives of deceased, therefore, they spoke false against him. In fact while he was returning from his field, in front of the house of Kanhaiyalal Naveriya, deceased stopped him and demanded money. When he did not give money, at that time, Guddu Sharma abused and assaulted him. In the scuffle, they went ahead of the house. In the course of altercation, deceased picked him up and dropped on the ground due to which suddenly his gun went off accidentally and hit the deceased.

5. To substantiate its case, prosecution examined number of witnesses, however, relying mainly on the evidence of Kanhaiyalal (PW-5), Ku.Vineeta Naveriya (PW-7), Lokesh Naveriya (PW-12) as eyewitnesses and on the medical evidence of Dr. A.K.Agnihotri (PW-6) and Dr. Ashok Kumar Jain (PW-15), trial Court held the accused persons guilty of the offences and convicted and sentenced them as mentioned above. Aggrieved by their conviction and sentence, accused have filed these appeals.

6. We have heard the learned counsel for the parties.

7. It was no longer disputed that deceased Guddu Sharma died of gun shot injury. It is also reflected from the evidence of Dr. A.K.Agnihotri (PW-6) that body of Guddu Sharma was brought to him by constable Iqbal Hussain. There was a wound on the left side of his chest. It appeared that it was a gun shot wound. His report is Ex.P/13. Dr. Ashok Kumar Jain (PW-15) who was posted as Assistant Surgeon in Medical College, Jabalpur deposed that he conducted postmortem examination of the body of Guddu @ Basant Sharma. He found one round gun shot wound, 4 cm in diameter on the left side of chest of the body. Margins of the wound were tattooed. 3rd 4th & 5th ribs were fractured and there was an exit wound on the left shoulder on scapular region. On internal examination, he saw laceration of both the lobes of lung. Pleura was ruptured. Pericardium on the left side of heart was also ruptured. There was one through and through laceration in the left ventricle of heart. Entry wound and exit wound were connected by a track. A plastic cap of cartridge was also found in the soft tissues of pleura. In his opinion, these injuries were caused by gun shot which was fired from a very close range. The cause of death was shock to the heart. His postmortem examination report was Ex.P/17. Investigating officer C.R.Patel (PW-16) also stated that he conducted the inquest and prepared memorandum Ex.P/12. He kept the dead body in the jeep and sent the same for postmortem examination to Medical College, Jabalpur. There was a gun shot wound on the left side of chest of the body. A wad like article was thrusted in the wound. It was, thus, clearly evident that deceased Guddu Sharma died of gun shot injury.

8. Learned counsel for the appellants, however, submitted that the findings which have been recorded for convicting the appellants are bad in law, perverse and based on no evidence and are contrary to the material on record. Trial Court has gravely erred in placing implicit reliance on the evidence of relative eyewitnesses and has not properly appreciated the evidence on record and has committed error in convicting the appellants. Learned counsel for the State, on the other hand, supported the findings recorded by the trial Court and contended that no interference was called for in these appeals.

9. We have gone through the entire evidence on record.

10. Complainant Kallu @ Rajendra Tiwari (PW-1), Ramkumar Patel (PW-2) and Shankarlal (PW-4), who were examined by the prosecution as eyewitnesses, did not support the prosecution case, therefore, they were declared hostile. The case, therefore, mainly rests on the evidence of eyewitnesses viz. Kanhaiyalal (PW-5), Ku. Vineeta (PW-7) and Lokesh (PW-12).

11. Kanhaiyalal (PW-5) deposed that in the evening of 14th March, 2001 at about 6:30 p.m., Guddu Sharma and Kallu Tiwari had come to his house at Barginagar. After sometime Guddu Sharma left his house saying that he would go to the house of accused Balram for applying vermilion (Tika) to him. After about half an hour he came back. While they were sitting, at about 8:45 p.m. Balram Patel came in front of their house and extended threats to Guddu Sharma. He shouted calling him out of the house. When they went out of the house, they saw Balram wielding a gun. Accused Gudda Patel was also with him. Guddu Sharma grabbed the barrel of the gun and indulged in scuffle with him. Thereafter, Guddu Sharma assaulted accused Balram Patel with fists and kicks and snatched his gun. Balram then apologised whereupon Guddu returned his gun. Thereafter, when he and Guddu Sharma proceeded back to his house they heard sound of gun fire. On looking back, they saw that accused Balram pointed his gun towards Guddu and fired it. The shot hit on the left side of chest of Guddu. Guddu fell down. Kanhaiyalal further deposed that accused also put barrel of the gun on his neck, but the gun was empty. Thereafter, both the accused ran away. Kallu Tiwari (PW-1) went to police chowki to lodge the report and informed the wife of deceased.

12. Learned counsel for the appellants urged that Kanhaiyalal (PW-5) was the brother-in-law of deceased. He changed the story before the Court and attributed no act to accused Gudda Patel. His evidence was inconsistent with the medical evidence, therefore, trial Court committed error in placing reliance on his evidence. It is true that in his evidence, he merely deposed that accused Gudda Patel was present at the time of incident, however, he did not assign any act to him to indicate that he shared the intention of accused Balram Patel. He denied that accused Gudda Patel had snatched gun from Balram Patel and fired at the deceased. However, his evidence was clear with respect to Balram Patel that he fired at deceased. In fact it has not been disputed by the learned counsel for accused Balram that deceased suffered gun shot injury by the gun wielded by Balram, but,according to him, that was an accidental fire when deceased himself scuffled with him and threw him on the ground.

13. From the evidence of Kanhaiyalal (PW-5), it is revealed that relations between deceased and accused Balram were quite cordial before the occurrence. There was absolutely no dispute between them even before the occurrence. Deceased had told to Kanhaiyalal about his going to the house of accused for applying Tika to him as it was the day of "Rang Panchmi" celebration. There appeared no apparent cause why accused Balram should have come to the house of Kanhaiyalal and extended threats to deceased. It appears strange that Kanhaiyalal did not ask the deceased as to why Balram abused him and extended threats to him. The facts as narrated by Kanhaiyalal appeared strange. It is quite strange that deceased came out of the house and suddenly grabbed the barrel of the gun wielded by accused. There was a scuffle when Guddu Sharma held the barrel of gun. It was quite easy for Balram Patel to have fired the gun when deceased held the gun from the barrel side, but he did not do it even in the circumstances when deceased assaulted accused Balram and went about 20 metres away from the house where the quarrel started. According to Kanhaiyalal (PW-5), the place of incident was about 86 metres away from his house. Deceased and Balram scuffled for about 20 metres distance then deceased felled accused Balram to the ground and snatched his gun. The quarrel was then pacified and deceased returned the gun to accused Balram. When both of them parted and proceeded in different directions, a gun shot was fired. When they looked back, accused Balram who was standing at a distance of about 20-25 paces fired the gun at deceased. Learned counsel for the appellants contended that this part of the evidence of Kanhaiyalal was belied by the medical evidence of Dr.A.K.Jain (PW-15), who conducted the postmortem examination. Dr.A.K.Jain categorically stated that the gun shot injury found on the body of deceased was caused by firing from a very close distance. Even the plastic cap of cartridge was found in the soft tissues of the entry wound. In para 7 of his evidence, Dr. Jain clarified that at the time of fire either the barrel of the gun must be in contact with the body or about 6" away from it. He had mentioned this fact in his report Ex.P/17. According to Kanhaiyalal, accused had fired gun from a distance of about 20-25 paces i.e. 60-70 feet from the deceased. In our opinion, this is a material inconsistency between the evidence of Kanhaiyalal (PW-5) and the medical evidence. From the postmortem examination report Ex.P/17, it is revealed that there was a rounded wound of gun shot 4 cm in diameter. It had tattooed margins and underneath ribs 3rd 4th & 5th were fractured. These circumstances clearly indicate that the gun shot injury was caused to deceased from a very close range, in any circumstances, not from a distance of about 40-50 feet.

14. Evidence of Kanhaiyalal (PW-5) that accused Balram fired gun at deceased finds support from the evidence of Ku. Vineeta Naveriya (PW-7) and Mahendra Tripathi (PW-8). Though Vineeta Naveriya stated that there had been an altercation between deceased and accused Balram and accused Gudda accompanied Balram, but she admitted that when she was inside the house she heard the sound of firing. When she went out of the house, she saw deceased lying on the ground. Her father i.e. Kanhaiyalal told to her that Balram shot at Guddu. She, however, denied that there was any scuffle between accused Gudda Patel and the deceased. Similar was the evidence of Lokesh Naveriya (PW-12). According to him, he saw both the accused persons and the deceased quarrelling in front of his house. Balram had a gun. All these persons went towards "Tiraha". When he was standing in front of his house he heard two sounds of firing. When he went on the spot, he saw deceased lying on the ground. According to him, his father Kanhaiyalal told him that Balram shot at Guddu. Though he stated that he himself saw Balram firing the gun but this fact was found missing in his police statement Ex.D/2. Apart from the evidence of aforesaid witnesses, there is evidence of investigating officer C.R. Patel (PW-16) who seized an empty 12 bore cartridge from the spot and sent it to Forensic Science Laboratory, Sagar for comparison with the gun seized from the possession of accused. According to F.S.L. Report Ex.P/23, the empty cartridge seized from the spot was fired from Article "G" 12 bore gun recovered from the accused. Thus, it has been established that deceased died of gun shot injury fired from the gun of accused Balram Patel.

15. It is true that according to Dr. Ashok Kumar Jain (PW-15), margins of gun shot wound were tattooed and a plastic cap of the cartridge was found inside the wound which in his opinion indicated that gun was fired from a close range, but at the same time it is established from the evidence of Kanhaiyalal that accused went at his house and abused and extended threats to deceased. Though it was said that relations between them were cordial but from the first information report lodged by Rajendra Tiwari (PW-1), it is indicated that deceased went at the house of accused Balram to get his money back from him and on not finding him at his house, he intimidated his wife that he knew how to recover the same. Though Kallu @ Rajendra (PW-1) disowned the first information report Ex.P/1, but admitted his signatures on it. F.I.R. Ex.P/1 was proved by the head constable Dashrath Singh Thakur (PW-17). It gives some indication why accused Balram Patel went at the house of Kanhaiyalal in enraged mental condition and abused the deceased. Though Kanhaiyalal (PW-5) denied that deceased was a person with criminal antecedents, yet it was established by the evidence of head constable Laxmi Prasad (DW-1), who proved criminal record of deceased by producing copies of crime register (Ex.D/4 to D/11) of police station, Lordganj that number of criminal cases under sections 307,506,323,452,426,376, I.P.C. etc were registered against him. He was so desperate that he caught hold of the gun of accused and assaulted him by fists and kicks and snatched his gun. It appears that when deceased returned the gun to accused Balram, he fired the same at deceased. It seems to us that neither prosecution witness nor accused gave wholly truthful description of the occurrence. It does not stand to reason that accused would go away for about 25 paces then fire. Evidence of Kanhaiyalal with respect to distance of the deceased from the accused does not appear trustworthy, however, it has been clearly established from his evidence that Balram Patel fired gun at deceased as a result of which he died. It is revealed from the evidence of Kanhaiyalal (PW-5) that immediately before Balram fired, his gun was snatched and he was beaten by deceased. In these circumstances, in our opinion, it cannot be held that he had motive to commit murder of deceased. Had he intended it, he could have fired at deceased at the very moment he came out of his house hearing his threats. But he fired gun shot at deceased without any premeditation in a sudden fight upon a sudden quarrel, his act, in our opinion, fell within the ambit of Exception 4 of section 300 of the Indian Penal Code. Therefore, appellant Balram Patel was liable to be convicted unde section 304 Part I and not under section 302 of the Indian Penal Code.

16. From the evidence of eyewitnesses, it cannot be held with certainty that accused Gudda @ Vijay Patel shared common intention with accused Balram Patel.

17. For the reasons stated hereinabove:-

(i) Criminal Appeal No.1263/2002 preferred by appellant Gudda @ Vijay Patel is allowed. His conviction and sentence passed by the trial Court under section 302/34 of the Indian Penal Code is set aside. He is acquitted.

(ii) Criminal Appeal No. 1569/2002 preferred by appellant Balram Patel is partly allowed. His conviction under section 302 of the Indian Penal Code and sentence of imprisonment for life is set aside. He is convicted under section 304 Part I of the Indian Penal Code and sentenced to rigorous imprisonment for 10 years and to pay fine of Rs.5000/-. In default of payment of fine, further rigorous imprisonment for one year. It has been informed that appellant Balram is in custody since 15.3.2001. If he has served out the sentence awarded to him, he shall be released, if not required in any other case.