Abasaheb D. Shinde J.

1. The present Appeal is directed against the Judgment and Order dated 13.10.2023 passed by the learned Additional Sessions Judge, Bhoom, in Sessions Case No.45 of 2020, whereby the appellant is convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”) and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- (Rupees Ten Thousand Only), in default of which the appellant is further directed to undergo rigorous imprisonment for one year. The appellant is also convicted for the offence punishable under Section 30 of the Arms Act, 1959 and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.2,000/- (Rupees Two Thousand Only), in default of which the appellant is directed to undergo rigorous imprisonment for one month, by directing the said sentences to be run concurrently.

THE PROSECUTION CASE :

2. The prosecution case in short is that on 29.02.2020, Dilshad Dastagir Patel (informant) PW-1, and Dastagir @Shahanur Patel (deceased), completed their routine morning work. At about 8:00 a.m., their relative, Javed Ali Pathan, visited their house who accompanied the deceased to the agricultural fields. After returning, they brought chicken for lunch and PW-1 was busy cooking, while her son Arif Dastagir Patel, PW-7 was watching Television. The deceased and Javed consumed liquor in the house.

3. At about 12:00 noon, Javed made a phone call and invited the appellant for lunch. Shortly, the appellant along with Babasaheb @Shingya Alat, PW-8 arrived on a scooty. The appellant, the deceased and Javed together consumed liquor. The appellant then handed the scooty key to PW-8 and asked him to bring the revolver and the money kept in the scooty’s dicky. After PW-8 returned with the articles, the appellant sent him to bring another bottle of liquor.

4. During their conversation, the appellant demanded Rs.50,000/- allegedly lent by him to the deceased. The deceased replied that he would repay the amount after harvesting his jowar crop. Meanwhile, Suyaj Layak Shaikh, PW-5 arrived at the house, and PW-8 too returned with a bottle of liquor.

5. Thereafter, they all moved to the courtyard, deceased asked the PW-1 to bring salt. As she went inside the house to bring salt, she noticed Javed leaving the place. While they were inside the house, the informant, PW-1 and her son, PW-7 heard the sound of an explosion. They immediately came out and saw the appellant running away from the spot, PW-5 was seated near the deceased, while PW-8 was standing near a tamarind tree. The deceased was lying on a mattress with a bleeding injury on the right side of his chest and was unconscious. PW-7 made a phone call to Shrihari Baliram Bhoite, PW-9, who brought his jeep, by which the deceased was taken to Jagdalemama Hospital, Barshi, where he was declared dead by the attending doctor. The body thereafter was sent to the Government Hospital, Barshi, for autopsy. On the next day, i.e., 01.03.2020, the informant lodged First Information Report (Exhibit-82) with Bhoom Police Station against the Appellant, bearing Crime No.31/2020 for the offence punishable under Section 302 IPC read with Section 30 of the Arms Act, 1959.

6. After investigation, the police filed a charge-sheet against the appellant. The Additional Sessions Judge framed charges for the aforesaid offences against the appellant to which he pleaded not guilty and claimed to be tried.

WITNESSES EXAMINED BY THE PROSECUTION

7. In support of its case, the prosecution examined 16 witnesses and relied upon number of documents and material marked as Exhibits, to establish the guilt of the appellant.

8. Upon recording the evidence of the prosecution witnesses, the incriminating circumstances were put to the appellant under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Cr.P.C.”) and upon completion of the trial, the learned Additional Sessions Judge, Bhoom, passed the impugned judgment and order.

SUBMISSIONS OF LEARNED COUNSEL FOR THE APPELLANT :

9. Learned Counsel for the appellant assailed the impugned judgment and order on several grounds. He strenuously submits that the death of the deceased was not homicidal but an accidental death. The deceased was handling the revolver of the appellant that time the bullet accidentally struck the right side of his chest. The prosecution failed to prove the recovery of revolver allegedly used in the incident. He further submits that none of the prosecution witnesses, including the wife of the deceased, supported the prosecution case, as all the material witnesses, including the informant and the eyewitnesses, turned hostile. The prosecution failed to prove the motive for the commission of the offence. The medical evidence as well as ballistic report do not support the prosecution case. He therefore urged that, the appellant deserves to be acquitted by setting aside the impugned judgment and order.

SUBMISSIONS OF THE LEARNED APP :

10. Per contra, the learned APP would submit that the prosecution case is essentially founded upon the circumstantial evidence establishing that the death of the deceased is homicidal and caused due to firearm injury. The appellant was holding a license of the revolver involved in the crime, which has been recovered under Section 27 of the Indian Evidence Act, 1872. The ballistic expert’s opinion also establishes that the bullet recovered from the body of the deceased had been fired by the revolver recovered from the appellant. The medical evidence supports the prosecution case of homicidal death. He would submit that the appellant failed to offer any explanation regarding the use and whereabouts of his licensed revolver, which constitutes an additional incriminating circumstance. He, therefore, urged that the learned Additional Sessions Judge, Bhoom was justified in convicting the appellant[

11. We have heard learned Counsel for the appellant and the learned APP and, with their able assistance, carefully perused the record.

CONSIDERATION :

(i) HOMICIDAL DEATH OR ACCIDENTAL DEATH

12. To establish that the death was homicidal, the prosecution relied on the evidence of Dr. Santosh Baburao Bhoi, PW-15, (Exhibit-129) who conducted the autopsy of the deceased. The said witness noticed following injury :-

                    “Firearm entry wound present on the right side of chest measuring 0.9 cm x 0.6 cm cavity deep with grease collar and abrasion collar. The wound track traversed through chest wall, pleura, pericardium, heart and left lung. Bullet was recovered from posterolateral thoracic wall.”

13. In his evidence, PW-15 stated that the death was caused due to haemorrhagic shock due to firearm injury to the chest. Though he was extensively cross-examined with the suggestion that it was an accidental death, however, he categorically stated that the injury was inconsistent with accidental self-firing while handling the revolver. In short, nothing favourable to the defence could be elicited in his cross-examination. Thus the prosecution has established the homicidal death of the deceased.

(ii) RECOVERY OF THE WEAPON :-

14. PW-4, Balasaheb Deorao Ware (Exhibit-60), who acted as a Panch witness to the disclosure statement (Exhibit-61) as well as recovery Panchanama, (Exhibit-62) categorically stated in his evidence that, the accused voluntarily agreed to produce the revolver used in the commission of offence. The appellant led police and Panch witnesses to Village Patsangavi, where the appellant produced the revolver from the mulch lying under the lemon tree and handed it over to the police. He also identified the said revolver before the Court. Nothing was found in cross-examination so as to disbelieve his testimony. The prosecution has, therefore, duly proved the recovery of the revolver pursuant to the disclosure statement made by the appellant under Section 27 of the Indian Evidence Act, 1872.

15. The evidence of Ballistic Expert, Mahesh Shankar Kadam PW-16, (Exhibit-131) disclosed that blackening and burning around the wound are generally present in cases of close-range or contact firing, including accidental self-inflicted firing, however, no such features were present in the instant case, and the injury could not have been caused by accidental firing. The evidence of PW-16 further reveals that he examined revolver (M.0.No.5), empty shell, bullet recovered from the body of the deceased (M.0.No.6), clothing articles, which showed that the revolver was in proper working condition. Test-firing was successfully carried out and the microscopic examination revealed that the bullet recovered from the body of the deceased had been fired from the revolver (M.0.No.5).

16. The Chemical Analyzer’s Report (Exhibit-105) corroborates the testimony of PW-16. Thus, the prosecution has conclusively established that the fatal bullet was fired from the appellant’s revolver. It is not in dispute that the revolver belonged to the appellant as the arm license (Exhibit-84) stands in his name.

(iii) MOTIVE

17. As per the prosecution case, the deceased had borrowed Rs.50,000/- from the appellant. The incident occurred on account of demand of the said money in which the appellant fired a bullet at the deceased who succumbed to the said injury.

18. In fact, prosecution has examined three eyewitnesses in support of its case. PW-1, Dilshad Dastagir Patel, who is the wife of the deceased has not supported the prosecution case. She did not recognize the appellant in the Court. She was unable to state how the bullet hit the deceased. She deposed that at the time of incident she was inside the house and she only heard the explosion. After hearing the sound she came out of the house and saw that the deceased was lying in the courtyard.

P.W.-5, Suyaj Layak Shaikh, is also an eyewitness. He also did not support the prosecution. He has deposed that when he was keeping the liquor bottle in the scooty’s dicky, the deceased arrived there and despite his resistance took the revolver from the dicky and went inside the house. At that time, he heard the sound of gunshot from the revolver. He, thereafter, left the said place.

PW-7, Arif Dastagir Patel (son of the deceased) is another eyewitness who has turned hostile deposed that though he knows the appellant, however, he did not know the nature of transaction between the deceased and the appellant. He stated that though the deceased died on 29.02.2020, however, he did not know how he died. He further stated that he is not aware whether any incident had happened between the deceased and the appellant.

PW-8, Babasaheb @ Shingya Alat, who was accompanying the appellant, also did not support the prosecution case. He did not recognize the appellant and he deposed that he is not aware as to how the deceased died. Even PW-9, Shrihari Baliram Bhoite, in whose jeep the deceased was allegedly taken to the hospital, did not support the prosecution case. He even denied that he received any phone call from PW-7, Arif, at any point of time and he was not aware as to whether any kind of incident had happened. PW-10, Nawab Baba Pathan, who allegedly arrived after the incident also did not support the prosecution case. He deposed that he does not know as to how the deceased died. Even PW-11, Ramesh Popat Ware, who was panch to seizure panchanama of muddemal articles, did not support the prosecution case.

19. It is pertinent to note that PW-1, Dilshad Dastagir Patel, and PW-7, Arif Dastagir Patel, were the most material witnesses to prove the aspect of motive. However, as observed hereinabove, they did not support the prosecution case and were declared hostile during the trial. It is equally significant that the prosecution failed to examine Javed, who was allegedly present at the time of the incident. The non-examination of such a material witness, without any plausible explanation, constitutes a serious omission in the prosecution case.

20. In view of the above mentioned evidence, the prosecution has failed to prove the motive behind commission of the alleged offence.

21. Upon the analysis of the above evidence on record it is clear that the prosecution has proved homicidal death of the deceased by the licensed revolver of the appellant and ballistic opinion supports that the bullet was fired from the licensed revolver of the appellant. The explanation given by the appellant is found to be false. Therefore, there is sufficient evidence to conclude that the deceased died due to the bullet injury which was fired from the licensed revolver of the appellant.

22. Now the question before us is whether the appellant is liable to be convicted under Section 302 of IPC or for a lesser offence. Before appreciating the evidence on record to consider this question it would be apt to consider the relevant provisions, which are as follows :-

                    Section 299. Culpable homicide.—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.

                    Explanation 1.—A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.

                    Explanation 2.—Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.

                    Explanation 3.—The causing of the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.

                    Section 300. Murder. — 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

                    2ndly.—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—

                    3rdly.—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—

                    4thly.—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.

                    Exception 1.—When culpable homicide is not murder.—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 mistake or accident.

                    The above exception is subject to the following provisos:

                    First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

                    Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

                    Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence.

                    Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

                    Exception 2.—Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

                    Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

                    Exception 4.—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's having taken undue advantage or acted in a cruel or unusual manner.

                    Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault.

                    Exception 5.—Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

                    Section 304. Punishment for culpable homicide not amounting to murder. — Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;

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

23. The evidence on record indicates that the appellant was not present on the spot from the beginning but he was called by Javed at the instance of the deceased. When the appellant arrived at the spot he was not carrying the revolver. The deceased, appellant and Javed were consuming liquor and were together for a considerable period. Later on, the revolver and money were brought from the scooty’s dicky by the deceased at the instance of appellant. Thus it is clear from the evidence laid by the prosecution that appellant had not arrived on the spot with an intention to kill the deceased.

24. The injury is caused to the deceased on the right side of the chest. If the appellant had intention to kill the deceased then he would have fired at the left side of the chest or in the head as the bullet is fired from close distance. From this, it is clear that the appellant had no intention to kill the deceased by firing the bullet from his licensed revolver. However, knowledge can be attributed to the appellant that if he fires a bullet from his revolver it may kill the deceased. At this stage, it would be profitable to consider the principles laid down by the Hon’ble Apex Court in the case of Anbazhagan Vs. State represented by the Inspector of Police (2024) 20 SCC 500, which reads thus :

                    “26. It has been further observed therein as under in Kudumula Mahanandi Reddi :

                    26 . … Where the evidence does not disclose that there was any intention, to cause death of the deceased but it was clear that the accused had the knowledge that their acts were likely to cause death the accused can be held guilty under the second part of Section 304 IPC.

                    27. … The contention that in order to bring the case under the second part of Section 304 IPC it must be brought within one of the exceptions to Section 300 IPC is not acceptable.

                    (emphasis supplied)

                    27. Thus, while defining the offence of culpable homicide and murder, the framers of IPC laid down the requisite intention or knowledge must be imputed to the accused when he committed the act which caused the death in order to hold him guilty for the offence of culpable homicide or murder as the case may be. The framers of IPC designedly used the two words “intention” and “knowledge”, and it must be taken that the framers intended to draw a distinction between these two expressions. The knowledge of the consequences which may result in the doing of an act is not the same thing as the intention that such consequences should ensue. Except in cases where mens rea is not required in order to prove that a person had certain knowledge, he “must have been aware that certain specified harmful consequences would or could follow.” (Russell on Crime, Twelth Edn., Vol. 1 at p. 40)”

25. The Hon’ble Apex Court further observed thus :

                    66.6 To put it more succinctly, the difference between the two parts of Section 304 IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 IPC, the accused need not bring his case within one of the Exceptions to Section 300 IPC.

                    66.7. The word “likely” means probably and it is distinguished from more "possibly". When chances of happening are even or greater than its not happening, we may say that the thing will “probably happen". In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.

                    66.13. In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II IPC.

26. In the light of ratio laid down by the Hon’ble Apex Court in the case of Anbazhagan (supra), we are of the considered view that the offence committed by the appellant would fall under Section 304 Part II of IPC, since the appellant used his licensed firearm in contravention of the licence conditions resulting in the commission of the offence, the conviction under Section 30 of the Arms Act calls for no interference by this Court.

27. Appellant was arrested on 02.03.2020 and by now, he had undergone 6 years and 4 months imprisonment. Having regard to the facts and circumstances of the case and taking into consideration the fact that even the wife and son of the deceased who are eyewitnesses have not supported the prosecution case, in our view following order would meet the ends of justice :-

ORDER:

i. The Criminal Appeal is partly allowed.

ii. The impugned judgment and order dated 13.10.2023 passed by the learned Additional Sessions Judge, Bhoom, in Sessions Case No. 45 of 2020 convicting the appellant for the offence punishable under Section 302 of IPC is hereby quashed and set aside and is modified by convicting the appellant for the offence punishable under Section 304 Part II of IPC and he is sentenced to suffer imprisonment for the period already undergone by him.

iii. The conviction and sentence under Section 30 of the Arms Act,1959 are maintained.

iv. The sentence of fine imposed by the Trial Court is maintained.

v. The appellant be released forthwith, if not required in any other case.

vi. Muddemal property be dealt with in accordance with law.