(Delivered by Hon'ble Imtiyaz Murtaza, J.)

The appeal in hand has been preferred against the judgement and order dated 24.10.81 passed by the Sessions Judge, Unnao in Sessions Trial No. 469 of 1981 whereby the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life.

The relevant facts of the case, as put forth by the prosecution, are that Chhedi Lal, the deceased, was running a barber shop in Kurari Khurd market. On 18.2.81, Nankaunoo, namely, the accused-appellant came to his shop and asked for his haircut but since Chhedi Lal was engaged in cutting hairs of some other customer, he asked Nankaunoo to wait till the cutting was over. It is alleged that the accused was insisting that he should be given preference over other customers but Chhedi Lal did not accede. Nankaunoo feeling insulted, extended threat to Chhedi Lal and left the shop. After the market was closed at about 5 p.m, Chhedi Lal went home and at about 6 p.m, he proceeded to answer the call of the nature towards canal lying in the western side of the village abadi and when he reached near the eastern mend of the grove of Ishwari, accused Nankaunoo emerged from northern side carrying a pistol in hand and threatened Chhedi Lal saying that he had insulted him in open market and he would not spare him alive. Chhedi Lal in order to save himself, fled towards west. Nankaunoo fired from his pistol which hit Chhedi on his left thigh and he collapsed. The incident, it is said, was witnessed by Janoo, Muneshwar and Udan. At that time Kishore, father of Chhedi Lal alongwith his son Ram Pal was returning from his field and they had also seen the incident. The injured Chhedi Lal was carried on a cot to his house where the report was scribed by Shiv Pujan Singh on the dictation of Kishore and they took the injured on a Kharkhara to police station Achalganj where the report was lodged at 7:45 p.m (Ex. Ka-1). On the basis of this report, chik report (Ex. Ka-4) was prepared and case under Section 307 IPC was registered vide G.D entry, which is Ex. Ka-5. After registration of the case, S.I Ravindra Prasad took up the investigation and recorded the statement of Chhedi Lal, who was lying injured on kharkhara outside the police station and he was referred to Achalganj hospital. Thereafter he was sent to district hospital, Unnao on a bus but on the way to the district hospital, he died. S.I Surendra Bahadur Singh prepared the inquest on the dead body which is Ex. Ka-11, challan lash which is Ex. Ka-12, diagram of the dead body, Ex. Ka-13 and letter to the Medical Officer which is Ex. Ka-14 for conducting postmortem. The dead body was entrusted to Constable Ram Kishen Chaudhary for postmortem examination.

The postmortem examination was conducted by Dr. J.N Bajpai, posted in the District Hospital, Unnao on 19.2.81 at 3:30 p.m The following ante mortem injuries were noted by the doctor on the person of the deceased:-

1. Gun shot wound of entry ½″ and ½″ on the back and inner part of left thigh. No blackening or tattooing was present. The margins were inverted and contused; and

2. Six gun shot wounds of exit each 1/3″× 1/3″ in size in front and middle of left thigh. No blackening or tattooing was present and margins were everted.

In the opinion of the doctor, the cause of death was shock and hemorrhage due ante mortem fire arm injuries. During postmortem examination four pieces of wadding were also recovered.

After conclusion of investigation, charge sheet was submitted in court which is Ex. Ka-10 and the case was committed to the court of sessions. A charge under Section 302 was framed against the appellant to which he pleaded ‘not guilty’ and claimed trial.

The prosecution examined in all eight witnesses.

PW-1 Kishore is the first informant and father of the deceased. PW-2 Janoo and PW-3 Udan are eye witnesses of the case. PW-4 Dr. J.N Bajpai had conducted autopsy on the dead body of the deceased. PW-5 HC Ram Prasad Singh prepared the chik F.I.R and G.D entry. PW-6 SI Ravindra Prasad Yadav had conducted investigation of the case initially. PW-7 SI Hari Kishen Verma is another investigating officer who had taken up investigation on 19.2.81 after the case was altered from Section 307 to Section 302 IPC. He recorded the statement of the witnesses and proved the charge sheet Ex. Ka-10. PW-8 SI Surendra Bahadur Singh has proved the inquest report and other relevant papers for postmortem examination.

The case of the accused-appellant was of denial and false implication and he did not examine any witness in his defence.

We have heard Sri Arun Sinha, Advocate for the appellant and Sri Jyotinjay Verma, AGA for the State and have perused the lower court record.

Counsel for the appellant has challenged the findings recorded by the trial court mainly on the ground that no independent witness supported the prosecution case and further that in the facts and circumstances of the case, the Sessions Judge erred in convicting the appellant under Section 302 IPC because according to the postmortem examination report, the deceased had sustained fire arm injuries on non-vital parts of the body.

Per contra, learned AGA supported the findings recorded by the trial court and the conviction of the appellant under Section 302 IPC as well.

In order to appreciate the submission of the counsel for the parteis, we have carefully examined the evidence on record.

PW-1 Kishore is the father of the deceased. He has fully supported the prosecution case. He deposed that when Chhedi Lal reached the eastern end of the grove of Ishwari, accused Nankaunoo emerged from the northern side and challenged Chhedi Lal saying that he had insulted him in open market and he would not spare him alive. Thereafter the accused who was carrying a loaded pistol fired at the deceased which hit him on left thigh and he fell down on ground.

The evidence of PW-1 Kishore is corroborated by PW-2 Janoo and PW-3 Udan, who were also residents of village Kurari Khurd and stated that Chhedi Lal was 40-45 paces ahead of them and when they reached at the eastern mend of the grove of Ishwari, the accused emerged from northern side with a pistol in his hand and challenged Chhedi Lal saying that he had insulted him in the market and he would not spare him alive and thereafter he fired a gun shot which hit the deceased on his thigh.

The witnesses were extensively cross-examined but nothing could be elicited so as to discredit their testimonies.

It has been suggested by the counsel for the appellant that testimonies of PW-1, PW-2 and PW-3 could not have been relied upon because PW-1 is the father of the deceased and PW-2 and PW-3 are inimical and interested witnesses.

We do not find any substance in the aforesaid submission of the counsel for the appellant in view of the fact that merely because of relationship and interestingness, testimonies of witnesses cannot be outrightly rejected. The law requires that testimonies of such witnesses should be scrutinized carefully.

Having examined the testimonies of PW-1, PW-2 and PW-3, we find that they have withstood the test of grueling cross-examination and nothing substantial could be elicited to discredit their testimonies.

The next submission of the counsel for the appellant is that the Sessions Judge has wrongly convicted the appellant under Section 302 IPC as the deceased had sustained injuries on non-vital parts. In support of his submission, learned counsel has placed reliance on the decisions of the apex court in the case of Ram Prakash Singh v. State Of Bihar., 1998 SCC (Cri) 1045; Chavda Jivanji Chelaji v. State of Gujarat, 2004 SCC (Cri) 437; Vineet Kumar Chauhan v. State Of Uttar Pradesh.(2009) 1 SCC (Cri) 915; and Rampal Singh v. State Of Uttar Pradesh., (2012) 3 SCC (Cri) 860.

We have carefully examined the testimonies of eye witnesses. They have specifically stated that the appellant challenged the deceased threatening that he would not be spared alive and thereafter he fired shot from his loaded pistol. According to postmortem examination report, the deceased had sustained fire arm injury and according to medical opinion, cause of death was shock and haemorrhage due to injury caused by fire arm. According to the testimony of PW-4 Dr. J.N Bajpai, the shot was fired from a distance of four feet.

The manner of crime clearly indicates that the appellant had an intention to cause death to the deceased. He was carrying a loaded pistol. There was a motive for commission of the crime.

Thus, we are of the opinion that merely because the deceased sustained injury on non-vital parts, the appellant cannot be said to have caused death to the deceased without an intention to kill him.

So far the cases cited by the learned counsel for the appellants are concerned, they are based on different set of facts and circumstances.

In the case of Vineet Kumar Chauhan (supra), the conviction under Section 302 IPC was altered to Section 304 Part II IPC considering the fact that altercation relating to cable connection resulted in the appellant fetching his father's revolver and firing indiscriminately towards complainant's house from the door of his house which caused death to the deceased who was hit by a bullet in the jaw while she was attempting to close the main door of their house. Considering the given facts and circumstances, it was held that there was no enmity between the parties and there was no allegation that before occurrence the appellant had premeditated the crime of murder.

In the instant case, altercation had taken place much earlier when the incident in question is said to have taken place. The first part of the incident occurred in the shop of the deceased and thereafter he returned to his house after closing the shop. It was thereafter when he was proceeding to answer the call of the nature that the appellant emerged carrying a loaded pistol and and fired at him. Therefore, it cannot be said that act of the appellant was not premeditated or that it was done after immediate altercation.

Likewise, in the case of Chavda Jivanji Chelaji (supra), wherein the conviction was altered from Section 302 IPC to Section 304 Part II IPC, the only injury which caused death to the deceased was described as injury no. 4, which injury was inflicted on the left humerus which had cut artery and vein causing the death of the deceased. The question was whether anyone of the accused would have intended to inflict that injury. The apex court held that ‘in an action described by the eye witnesses where the deceased sometimes was standing up and at other times was running and was surrounded by the assailants, one particular injury on the humerus cannot be said to be a wound which was specifically intended by the assailant at whose hand that injury was caused’. It was under these circumstances that the conviction was altered from Section 302 IPC to Section 304 Part II IPC.

The ratio of above case does not apply to the presence case as the facts and circumstances of the case in hand are totally distinguishable wherein the appellant was carrying a fire arm who chased and fired at the deceased, which injury resulted in his death.

Further, in the case of Ram Prakash Singh (supra) also, the conviction was altered from Section 302 IPC to Section 304 Part II with the following observations:

“……..The fact that a hot exchange of words took place is also deposed by all three eye witnesses. The evidence further shows that only one knife blow was given by the appellant without aiming it at any particular part of Ramswarath's body. The doctor, who had performed the post mortem examination, has not stated that the injury, which was caused to the deceased, was sufficient in the ordinary course of nature to cause death. But for the sudden quarrel on that day there was no other reason for the appellant to cause an injury to his friend.”

It was in the aforesaid circumstances that the conviction was altered from Section 302 IPC to Section 304 Part II IPC. No such ingredient is present in the present case. Thus, this case is also of no assistance to the appellant.

The last decision relied upon by the counsel for the appellant is rendered in the case of Rampal Singh v. State Of Uttar Pradesh. (supra). In this case, conviction was altered from Section 302 IPC to Section 304 Part II IPC. The relevant facts which led the apex court to make such alteration are enumerated in Para 27 of the report, which are reproduced as under:

“………………Before shooting at the deceased, the appellant had asked his brother to keep away from him. On this, the deceased provoked the appellant by asking him to shoot if he had the courage. Upon this, the appellant fired one shot which hit the deceased in his stomach. This version of the prosecution case is completely established by the eyewitnesses, medical evidence and the recovery of the weapon of crime. The learned counsel appearing for the appellant has, thus, rightly confined his submission with regard to alteration of the offence from that under Section 302 to one under Section 304 Part II IPC of the Code.”

Thus, the conviction under Section 302 IPC was altered by the apex court to Section 304 Part II IPC as it was a case of sudden provocation.

The said case is also distinguishable from the present one, wherein, according to the prosecution version, the appellant was waiting for an opportunity and while the deceased was going to answer the call of the nature he emerged with a loaded pistol in his hand and after challenging the deceased he fired at him which resulted in his death.

Under the circumstances, in our considered view the Sessions Judge committed no error in convicting the appellant under Section 302 IPC.

The appeal lacks merit and is hereby dismissed.

The appellant is on bail. He shall be taken into custody and sent to jail to serve out the sentence awarded by the trial court.

Office is directed to communicate this order to the trial for compliance, as may be necessary.