Important point
Exception 4 to section 300 of IPC requires that no undue advantage be taken of other side.
Where Investigation officer failed to point out spot from where the witnesses saw the occurrence in site plan, the prosecution case could not be thrown out on said ground alone.

Headnote:Indian penal code, 1860 – Sections 302 r\w 27 of Arms Act – Prosecution of appellant for causing death of deceased by a gun shot injury – Conviction by Trial Court upheld by High Court on appeal – Appeal against conviction on plea of discrepancy between medical evidence and ocular evidence and that evidence of Eyewitnesses could not be held reliable so as to base conviction on it – Plea that even though autopsy surgeon opined that entry point of bullet was 12 cms from right nipple and exit point was on left side, informant in his deposition categorically stated that deceased suffered fire arm injuries near right nipple – Held informant might have stated that deceased received bullet injuries on left side of his body – Injury on left side of body of deceased was apparent – When a shot is fired all of a sudden, it is difficult for anybody to give a vivid description of entire incident – Again, it could not be forgotten that informant was being assaulted – Hence there was no discrepancy between medical evidence and ocular evidence - Deceased answered to call of informant and as soon as he opened door he received a gun shot injury – In what position deceased was standing at fateful movement could only be a matter of guess and could not have been noticed by PW8 – Both eyewitnesses stated about firing of shot – Even though PW10 might not have seen actual firing a shot as he was standing behind deceased but as soon as deceased had fallen down, on receipt of fire arm injury, he could have seen appellant with a gun – Contention that PWs 8 & 10 were not reliable witnesses held unsustainable - No reason to disbelieve testimonies of PW8 & 10. (Paras 16,17,19)
       Indian penal code, 1860 – Sections 302 r\w 27 of Arms Act – Conviction of appellant for causing death of deceased by a gun shot injury – Appeal against conviction on plea that investigation officer failed to point out spot from where the witnesses saw the occurrence in site plan – No case that site plan was not prepared – However site plan showed material particulars – Place where PW8 was being assaulted was clearly stated in FIR and deposition of PW8 – Pw10 at time of occurrence was behind deceased inside house – No reason to throw out prosecution case only on ground that in site plan investigating officer failed to pinpoint place where witnesses were standing at time of occurrence - Even though investigating officer accepted that he failed to point out place where witnesses were standing – However it not took defence case any further as it was proved that appellant was armed with a gun and he was seen firing a shot and was also seen leaving place of occurrence with gun in his hand. (Paras 21,22)
       Indian penal code, 1860 – Sections 302 r\w 27 of Arms Act – Exception 4 of section 300 of IPC –Applicability of - Conviction of appellant for causing death of deceased by a gun shot injury – Appeal against conviction on plea that Exception 4 to Section 300 of IPC was attracted as appellant had no intention to commit murder – Exception 4 to section 300 of IPC requires that no undue advantage be taken of other side - Appellant fired a shot from gun which he was carrying – There was no provocation – Shot was fired on vital part of body – Deceased was not carrying any arm - As deceased was not armed with a gun and was merely opening door, appellant must be held to have taken undue advantage of his position – Hence exception 4 of S.300 IPC held not applicable –Appeal having no merit dismissed accordingly. (Paras 24,25,26,29,30)
       Facts of the case :
       The Appellant herein in the instant case was for causing death of deceased by a gun shot injury. Conviction by Trial Court was upheld by High Court on appeal.
       Aggrieved by said order of conviction and sentence, appellant has preferred present appeal.
       Findings of the Court :
       The Court held that plea of appellants that there was discrepancy between ocular and medical evidence was unsustainable. Even though autopsy surgeon opined that entry point of bullet was 12 cms from right nipple and exit point was on left side and informant in his deposition categorically stated that deceased suffered fire arm injuries near right nipple. However Injury on left side of body of deceased was apparent. It was held that when a shot is fired all of a sudden, it is difficult for anybody to give a vivid description of entire incident. Again, it could not be forgotten that informant was being assaulted. Deceased answered to call of informant and as soon as he opened door he received a gun shot injury. In what position deceased was standing at fateful movement could only be a matter of guess and could not have been noticed by PW8. Both eyewitnesses stated about firing of shot. Even though PW10 might not have seen actual firing a shot as he was standing behind deceased but as soon as deceased had fallen down, on receipt of fire arm injury, he could have seen appellant with a gun. Contention that PWs 8 & 10 were not reliable witnesses was held unsustainable. There was no reason to disbelieve testimonies of PW8 & 10.
       The Court further held that there was no reason to throw out prosecution case only on ground that in site plan investigating officer failed to pinpoint place where witnesses were standing at time of occurrence. Exception 4 of S.300 IPC held not applicable as deceased was not armed with a gun and was merely opening door, and appellant must be held to have taken undue advantage of his position.

JUDGMENT

S.B. SINHA, J.—

1.Appellant is before us aggrieved by and dissatisfied with a judgment and order dated 6.11.2006 passed by a Division Bench of the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 372-DB of 2003 and Criminal Revision No. 1475 of 2003 affirming the judgment and order dated 27.03.2003 convicting him for commission of an offence under Section 302 of the Indian Penal Code and Section 27 of the Arms Act.

2. The family of the appellant and the family of Dinesh (deceased) were residents of the same village. Their houses are intervened only by a road. The deceased and Manjit, brother of the appellant, were studying together in the same college. They were, however, not on speaking terms. Altercations had also taken place between the deceased and the appellant during Panchayat elections. Appellant thereafter had allegedly been threatening him. A First Information Report was lodged by Rajpal Singh, uncle of the deceased to that effect. The wedding of his niece had been fixed on 17.02.2002. The marriage celebrations had been going on. Appellant and Manjit, however, took objections to the singing etc. by the ladies, and they used to threaten them. On that account their festive mood would be turned into grief. On 14.02.2002 at about 8 p.m. Rajpal came out of his house. Appellant accosted him asking why such a noise in the neighbourhood was being made. He ignored him and continued walking. Dharmpal father of the appellant made a remark that it did not matter as he would come back by the same way. He was returning home at about 11 p.m. when Dharmpal caught hold of him. Appellant came at the spot armed with a gun. They started beating him. Rajpal called out for his nephew (Dinesh) and as soon as he opened the door, a shot was fired by the appellant at him. Almesh, another nephew (PW-10) of the first informant was also following Dinesh. He also witnessed the occurrence. Appellant, his father and brother went inside his house. After some time, however, the appellant came out with his brother Manjit and started walking. Dharmpal fired shots in the air.

3.Rajpal started proceeding to the police station which was about 11 kms. from the village. On his way, however, he met Satpal Singh Sub-Inspector of Police at about 2.00 a.m. and informed him about the incident. The First Information Report was recorded at about 3.10 a.m.

4.In the trial, the prosecution inter alia examined Rajpal (PW-8) and Almesh (PW-10). On the basis of the evidence brought on record by the prosecution, while acquitting Dharampal and Manjit, the learned Sessions Judge found the appellant guilty of committing murder of Dinesh. He was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-. He was also sentenced to undergo imprisonment for a period of two months and to pay a sum of Rs. 1,000/- as fine under Section 27 of the Arms Act. As noticed hereinbefore, the High Court has affirmed the said judgment of conviction and sentence

5.Mr. Jawahar Lal Gupta, learned senior counsel appearing on behalf of the appellant, took us through the First Information Report, the depositions of PWs 8 and 10 as also the medical evidence. It was contended that the medical evidence does not corroborate the ocular evidence. The learned Senior Counsel urged that from a perusal of the injuries noticed by the Autopsy Surgeon, it would appear that the entry point of the bullet was 12 cms from the right nipple and the exit point was on the left side, whereas Rajpal in his deposition categorically stated that the deceased suffered fire arm injuries near the right nipple.

6.The learned counsel submitted that as the shot was allegedly fired when Dinesh was opening the door when he was very much inside the house, it is improbable that he received gun shot injury from a fire from a distance of about 15 feet, particularly, when the appellant was not said to be standing just in front of the door. He further contended that Almesh could not

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2007 Supreme(SC) 700

Important pointException 4 to section 300 of IPC requires that no undue advantage be taken of other side. Where Investigation officer failed to point out spot from where the witnesses saw the occurrence in site plan, the prosecution case could not be thrown out on said ground alone.

Cases Referred (4)

Important point
Exception 4 to section 300 of IPC requires that no undue advantage be taken of other side.
Where Investigation officer failed to point out spot from where the witnesses saw the occurrence in site plan, the prosecution case could not be thrown out on said ground alone.