( 1 ) THIS appeal assails a conviction and sentence under S. 302, IPC. The appellant before us was a Forest Guard attached to the Nagarahole National Park and the facts are slightly unusual. According to the prosecution, sometime before the incident which took place at about 4 p. m. on the evening of 30-1-98, the accused had found a baby deer which was orphaned as a result of the fact that a poacher had killed the mother;the infant deer was taken by the accused to his own house and it appears that the accused and his family developed a very deep bond with this little animal because it further emerges that the animal was virtually nursed back to life by the accused and his wife and was thereafter being looked after by them. A few days before the incident the deer disappeared and the accused was searching everywhere for it when he is supposed to have received the information from some school children that the deer was with the deceased. He is supposed to have gone to the residence of the deceased Thammaiah who was a Coffee Planter and some incident is supposed to have taken place at that time. Going by the complaint which the accused had lodged to his superior officer, we have reason to believe that the incident was one of some seriousness wherein the deceased threatened the accused with a gun and he also shot the deer in question. Thereupon, the accused reported the matter in writing to his superior officer and obtained a search warrant obviously for purposes of seizing the evidence of the offence and he executed the search warrant in the course of which a thorough search was conducted of the residence of the deceased by PW. 23 and the accused in the presence of PW. 2. This took place on 26-1-88. We find that on the one hand this incident must have not only infuriated but also humiliated the deceased but on the other hand, since no traces of the animal were found as indicated in the report submitted after the search, it would have provoked a similar reaction not only of fury but of frustration in the accused. This is evidence from the fact that he had applied for taking the deceased into custody which did not take place. This is evidence from the fact that he had applied for taking the deceased into custody which did not take place. Thereafter the prosecution alleges that on 30-1-88 at about 4 p. m. the accused who had a double barrel gun with him (MO. 4) went to the residence of the deceased. He met the wife of the deceased who is PW. 1 Rohini and had some discussion with her in the course of which she offered him water which he accepted. It is of some significance for us to indicate that the accused had not gone alone but that he was accompanied by another person from the department by the name of Marni (absconding ). The accused asked Rohini where her husband was. The deceased in the meanwhile was working in the pumphouse a short distance away and Rohini called out to him whereupon he came out from there. The accused in the meanwhile had walked in that direction and it is also on record that some talk took place between him and the deceased after which he lifted the gun and fired it once. The deceased was hit on the left side near the waist and he fell down. The accused and his companion thereupon ran away from that place. There was a considerable time-lag in moving the injured Thammaih to the Primary Health Centre, Gonikoppal after which he was shifted to the K. R. Hospital in Mysore where he was admitted only at 7 p. m. A statement of the deceased or rather a dying declaration was recorded by PW. 24 who is the investigating officer and it was scribed by PW. 16. It is a short statement indicating that it was the accused who had shot at the deceased. The police originally registered an offence under Ss. 307, 448 and 506, IPC and since the deceased died sometime thereafter the charge was altered to one under S. 302, IPC. On completion of the investigation, the accused was put on trial. The learned Sessions Judge at the conclusion of the trial recorded the finding that the accused is guilty of the offence punishable under S. 302, IPC and sentenced him to undergo rigorous imprisonment for life. As far as the offence under S. 448, IPC is concerned, he has awarded rigorous imprisonment for one year and to pay a fine of Rs. As far as the offence under S. 448, IPC is concerned, he has awarded rigorous imprisonment for one year and to pay a fine of Rs. 2000/- in default rigorous imprisonment for six months. For the offence under S. 506, I. P. C. is concerned, he has awarded rigorous imprisonment for two years and a fine of Rs. 2000/- in default rigorous imprisonment for six months. The substantive sentences were directed to run concurrently. The present appeal is directed against the conviction and sentences awarded to the accused-appellant. ( 2 ) WE have heard the appellant's learned advocate Sri C. H. Hanumantharaya with R. B. Sadashivappa on behalf of the appellant and the learned Addl. S. P. P. who represents the State. In the course of the hearing, the learned advocates have taken us through the record and have made their respective submissions with regard to the factual aspects which we shall have occasion to deal with and, having regard to some of the special features of this case, they have also advanced their submissions with regard to the legal position which aspect we shall deal with presently. The appellant's learned advocate vehemently submitted that if the prosecution evidence is analysed, as far as the main incident is concerned that it rests very heavily on the oral evidence of PWs. 1, 2 and 5 and that it is supported by the medical evidence. We do not propose to deal with the first aspect of the case in very great detail. We have carefully scrutinised the evidence of the three witnesses PW. 1 Rohini who is the wife, PW. 2 Puttama who is the neighbour and PW. 5 who also claims to have seen the incident. It was submitted before us that if the evidence of these witnesses is minutely scrutinised that it would cast a serious doubt as to whether these three persons have actually witnessed the incident in the context that the prosecution alleges namely that they are eye witnesses. To this group, we need to bracket the evidence of PW. 6 also because the prosecution relied on his evidence on the ground that he was an eye witness. What has vehemently been submitted by the appellant's learned advocate is that even assuming that PW. 1 who is the wife would normally and naturally be in the house and PW. To this group, we need to bracket the evidence of PW. 6 also because the prosecution relied on his evidence on the ground that he was an eye witness. What has vehemently been submitted by the appellant's learned advocate is that even assuming that PW. 1 who is the wife would normally and naturally be in the house and PW. 2 who is a neighbour may have come there for any reason and simultaneously, even if PWs. 5 and 6 had come there for some work as it appears that they had something to do with the pump, that they had not actually witnessed the incident in question as the version given by these four witnesses are not identical. Apart from this, though they claim to have seen the incident the submission is that at the very highest their attention could have been attracted to the spot after hearing the gun shot. We have considered this argument and we have also taken into account the submission canvassed by the learned Addl. S. P. P. who has submitted that the quality of the evidence of these four witnesses could not have been what it is if they had not witnessed the incident and were only claiming to have seen it. Our evaluation is to the effect that it would not be possible to discredit the claim of the four witnesses that they were present and that they have seen the incident. It is only natural that the powers of comprehension and the spots from where each of them have seen the sequence of events differs. That explains the minor discrepancy. The basic substratum that emerges from this evidence is that the accused and Mari came to the house of the deceased on that afternoon and that the accused initially had some conversation with PW. 1, that he had some water which was offered to him after which he asked for the deceased, which was why PW. 1 called out to him. The deceased was quite some distance away in the pump-house and he came out when he was called by his wife and told that the accused wants to see him. The deceased was walking towards the accused and the accused was also walking towards the deceased. 1 called out to him. The deceased was quite some distance away in the pump-house and he came out when he was called by his wife and told that the accused wants to see him. The deceased was walking towards the accused and the accused was also walking towards the deceased. It is around this crucial time that the versions become extremely vague, for one thing there is a suggestion that some talk took place between the accused and the deceased and even in the statement or dying declaration of the deceased which is in Kannada, he uses the expression 'eradu maathu' which is equivalent of some talk. How far the two had advanced towards each other is not very definite and there is even a suggestion that the accused finally moved backwards, lifted the gun and shot at the deceased. We have taken special note of the fact that all these four witnesses are deliberately silent with regard to the nature of the talk which took place between PW. 1 Rohini and the accused even though she vaguely states that it had something to do with the house and what is even more vital is that they are again silent with regard to what precisely transpired after the accused came out from the pump-house. We do not believe that the witnesses were unaware of this nor do we accept the position that they could not have heard the exact nature of the conversation and it does appear to us that therefore for some reason this very crucial evidence has been kept back. We have specifically referred to this aspect of the case because we shall have to take special note of it while ultimately dealing with the question as to what precisely would be the offence that the prosecution has established against the appellant-accused. The learned trial Judge has effectively accepted the eye-witness evidence and in our opinion rightly except however as regards the aspects that have been noted by us above. ( 3 ) WE have on record the statement of the deceased which has been recorded by PW. 24, the Investigation Officer which is in the handwriting of PW. 16 and this statement has also been duly certified by the doctor. It is a short statement and beyond implicating the accused as the person who shot the deceased, it does not set out very many other details. 24, the Investigation Officer which is in the handwriting of PW. 16 and this statement has also been duly certified by the doctor. It is a short statement and beyond implicating the accused as the person who shot the deceased, it does not set out very many other details. What we have taken note of as far as this document is concerned, is only that the deceased does not even refer remotely to any background incidents or hostility nor does he so much as even suggest as to what was the reason why the incident took place or the genesis of what made the accused use the fire-arm against him. This will have some bearing on the legal position as indicated by us while analysing the evidence under the earlier head. ( 4 ) AS far as the medical evidence is concerned, we have again had occasion to consider it very carefully because the appellant's learned advocate pointed out to us that the injury is on a non-vital part of the body. In other words, it is at the top of the left thigh or waist. It is true that being a gun shot injury since the accused had used a double barrel gun that the injury is not superficial but that it is one of some seriousness because it has even shattered the bone. What the appellant's learned advocate desires to impress upon us is the fact that in the first instance the injury was afflicted on an area other than the head, the chest, the abdomen or any of the traditionally known vital areas or organs and he reiterated his submission in support of his contention that according to him even assuming the accused is held liable for having caused the injury in question that it must be concluded that the intention at the highest was to injure and not to kill. We shall deal with the implications of this submission while dealing with the legal aspects of the case but we need to record here that the learned Addl. We shall deal with the implications of this submission while dealing with the legal aspects of the case but we need to record here that the learned Addl. S. P. P. refuted this argument and it is interesting to record that he made two submissions in support of his contention viz that the use of a double barrel gun which is a very powerful fire-arm and the type of bullet that such a fire-arm employs are both sufficient indications of the fact that irrespective of which part of the body the injury is inflicted upon that it would be sufficient to kill a person. The learned Addl. S. P. P. submitted that when a high powered weapon of this type is used at short range and is directed against a human being that if aimed at the vital part of the body that the death would be instantaneous and that if any other part of the body is hit, survival would still be difficult. We have taken note of these submissions and we shall record our findings thereon while dealing with the position in law. ( 5 ) ANOTHER aspect of the medical evidence which the learned appellant's advocate highlighted was that it has come on record that the deceased was taken initially to the Primary Health Centre at Gonikoppal and that he was thereafter referred to a major hospital which was why he was taken all the way to the K. R. Hospital at Mysore. What the learned advocate brought to our notice was that the deceased was admitted to the hospital in Mysore at about 7 p. m. which was a good three hours after the incident, having travelled a considerable distance. The deceased was alive at that time and was, according to the doctor, in a position to make a statement even sometime later. The deceased has died after some hours on the same day and the learned advocate had laid heavy stress on the fact that the cause of death has been indicated as due to shock and haemorrhage or in other words, heavy loss of blood. The doctor has also admitted that had the deceased received adequate and proper medical attention at the right time that his life could have been saved. The doctor has also admitted that had the deceased received adequate and proper medical attention at the right time that his life could have been saved. Lastly, the learned advocate has brought to our notice something very important in the medical evidence namely the fact that it has not been elicited from the doctor when he has given evidence, that the injury in question was serious enough in the ordinary course of nature to cause death. He has attacked the validity of the conviction under S. 302, I. P. C. principally on this ground. The learned Addl. S. P. P. did try to contend that such a formal statement was not necessary in so far as the Court must infer from the medical evidence which is set out in detail, the nature of the injury as also from the post mortem report as to how grave it was, and he contends that it is not the law that merely because medical attention was not available and the deceased died or conversely that had medical attention been available that he may not have died, that S. 302, I. P. C. will not apply. We shall give out findings with regard to the section that would apply in the light of the legal position but we need to record here that this is a serious lacuna in the prosecution case. We need to also emphasise that there are certain basic ingredients which must be established in all criminal trials and that it would be very necessary for us to restate that if those basic ingredients are not brought on record that it could seriously damage the prosecution case. It is not for the Court to record findings in respect of this specialised field because the whole purpose of calling for and relying on medical evidence both documentary and opinion evidence from medical practitioners is in order to set at rest the correct factual position in respect of the medical aspects of the case. It is therefore absolutely essential that the doctor mustonine, along with reasons if necessary, as to what precisely was the gravity of the injury and whether it was sufficient in the ordinary course of nature to cause death. It is therefore absolutely essential that the doctor mustonine, along with reasons if necessary, as to what precisely was the gravity of the injury and whether it was sufficient in the ordinary course of nature to cause death. ( 6 ) WE have earlier recounted the factual background of the incident and the appellant's learned advocate laid emphasis on the fact that a few days prior to the date of incident the entire problem had erupted because of the disappearance of the pet deer which was subsequently traced on the basis of information from the school children to the house of the accused. It has also come on record that when the deceased went there an incident of some seriousness took place and the learned advocate submitted that this alone was sufficient to indicate that the deceased had not only taken the offensive but that he had acted in a manner which was highly provocative to the accused. From that stage onwards, there is a gradual build up of fury in so far as the accused not only filed a complaint in writing but he obtained a search warrant and executed it and even at that stage, his efforts were frustrated because he was obviously in search of some evidence but he found nothing. Similarly, the learned advocate has brought to our notice the fact that the manner in which the search warrant was executed would undoubtedly have equally infuriated the deceased particularly since the accused and another officer had come and virtually searched h is entire premises from top to bottom which must have also attracted attention in the locality. This background is referred to by the learned advocate who further submits that if one were to then look at the sequence of events on the date when the incident took place, it will be seen that the accused had once again come there and that it was very clear that he had not given up his efforts to find some material, obviously evidence because the record also indicates to us that he was pressing for the deceased to be taken into custody which had not happened earlier. The submission is that in this background, the accused who was a forest guard and who was also very seriously hurt and offended due to the earlier incidents which we have specifically recounted was really determined to bring the deceased to book and his submission is that this was the solitary purpose for which he had come there. Learned advocate submitted that if the accused had come with the object of finishing off the deceased that his behaviour on that date would have been very different and that he would have straight away shot him as soon as he located where he was and he relies on the factual aspects of the case for purposes of submitting that this is one of the strongest grounds on which the conviction under S. 302, I. P. C. is assailable. To summarise, the learned advocate was seeking to contend that it was the deceased who was really the wrong doer, it was the deceased who was virtually fuelling the fire and he submits that unless the deceased had done something further on that date to trigger off the action from the accused that there is no rational reason why the accused would have shot him; in short, the deceased had not only provoked but had virtually invited what followed. ( 7 ) ADVERTING here for a moment, on an in-depth analysis of the evidence which we have done, we do find that there is one feature of the evidence of the four witnesses which we have referred to above which is disquieting. We noticed that even though they have claimed to have seen everything from close proximity that there is a conscious effort on the part of all four of them to suppress the following features :- (A) What was the exact nature of the conversation between the accused and PW. 1 Rohini when he came there and was obviously in an absolutely civil mood and even accepted the water that was given to him? (B) What was the nature of the talk that took place between the accused and the deceased after the deceased had come out from the pump-house? (C) What precisely were the acts or actions of the deceased at this stage and simultaneously, what precisely were the actions or reactions of the accused at that point of time? (B) What was the nature of the talk that took place between the accused and the deceased after the deceased had come out from the pump-house? (C) What precisely were the acts or actions of the deceased at this stage and simultaneously, what precisely were the actions or reactions of the accused at that point of time? ( 8 ) WE have read and re-read the evidence and we find that this is virtually a grey area. In these circumstances, we have no hesitation in concluding that the accused had not come there in an aggressive mood or posture and that there is nothing to justify the inference that he had come there with the intention of shooting the deceased. From the build-up of the earlier incidents which were of recent nature, it is abundantly clear to us that there must have been a very aggressive and hostile reaction from the deceased when he was called out from the pump-house and that this was what really set off the action from the accused. ( 9 ) WE have referred to this important aspect of the case because the submission canvassed was that the offence, assuming it is proved, would be culpable homicide not amounting to murder and the further submission was that it would come within the exception of grave and sudden provocation. This argument has been refuted by the learned Addl. S. P. P. who submitted that as the evidence reads, there is nothing on record to indicate that there was grave and sudden provocation on the date of the incident and his submission is that what had happened in the course of the earlier days cannot be used as justification to bring the case within the ambit of grave and sudden provocation. In this regard, we need to call attention to a few of the recent decisions the first of them is a decision reported in 1994 Madras Law Journal (Criminal) P. 712 wherein the learned Judges have dealt with a situation legally defined as "sustained provocation" and they have pointed out that in a background of repetitive provocation where there is a gradual and systematic aggravation, that even a minor incident can finally act as the last straw that broke the camel's back and the learned Judges have described the reaction as a "volcanic eruption' at that point of time obviously caused by incidents some of which may be even a few days old. This Court, in two of the earlier decisions reported in I. L. R. 1997 Karnataka 3149 and 1997 Karnataka Law Journal 441 had occasion to expound the concept and to lay down that there could be a small category of cases in which there is a gradual and continuous build up in the mind of the accused due to provocation which is sufficiently grave and that this could get suddenly triggered off at the scene or time of the incident even though on the face of it the last of the acts does not appear to be very grave or very sudden. The same is the view expounded in the decision reported in 1996 Criminal Law Journal 1108. Cumulatively, we do see that in the background of the present case that the provocation to use the fire-arm must have come and could only have come at the last moment and that it must have been both grave and sudden because none of the witnesses so much as speak about any aggressive or dangerous posture displayed on the part of the accused. We have tried to find out from the evidence whether the prosecution can explain as to what provoked the accused who was a forest guard and who normally carried a fire-arm to use the gun against the deceased but there is again a void in the evidence as far as this vital area is concerned. We have tried to find out from the evidence whether the prosecution can explain as to what provoked the accused who was a forest guard and who normally carried a fire-arm to use the gun against the deceased but there is again a void in the evidence as far as this vital area is concerned. We therefore see considerable justification in the submission that the offence would not come within the ambit of S. 302, I. P. C. ( 10 ) THE main thrust of the arguments canvassed by the appellant's learned advocate with regard to the nature of the offence is based on his reliance on the decision reported in 1971 SCC (Criminal) p. 671 : (1971 Cri LJ 1555 ). We shall summarise the argument and then record our findings thereon. The submission proceeds on the footing that as indicated by us a little earlier, the genesis of the incident does not appear to have been deposed to by the witnesses and the submission canvassed by the learned advocate was that this was a deliberate act of suppression. He even went to the extent of contending that if on this most crucial aspect of the case the witnesses are keeping back something material from the Court that their credibility is seriously shaken and that the Court must give the benefit of doubt to the accused and acquit him. The learned Addl. S. P. P. vehemently submitted that this position is not factually incorrect, that the witnesses have given a general description of whatever happened even if they have not in so many words described the conversation and the very minute and precise actions and reactions of the accused and the deceased at that point of time. He however submitted that there is no justification to totally discard the evidence or to seriously doubt it. With regard to the decision in question, the learned Addl. S. P. P. submitted that even if the principles enunciated in that decision were to be applied that at the highest it would alter the head of conviction and nothing more than that. With regard to the decision in question, the learned Addl. S. P. P. submitted that even if the principles enunciated in that decision were to be applied that at the highest it would alter the head of conviction and nothing more than that. ( 11 ) IN the decision reported in 1971 Supreme Court Cases (Cri) 671 : (1971 Cri LJ 1555) (The State of Bihar v. Mohammed Khursheed), the Apex Court has clearly observed that where the origin of the fight is not forthcoming in so far as the incident is concerned, that the benefit of doubt has to be extended in favour of the accused. ( 12 ) THERE cannot be any dispute regarding the principles laid down in the case with which we are now dealing. It has clearly come in the evidence of PW. 1 and PW. 2 that the accused came armed with a gun along with the absconding accused, asked about the deceased and it is then that PW. 1 led the accused towards the pump house which was at some distance and after some altercation of about one or two minutes between the accused and the deceased, the accused herein fired the gun at the lower limb resulting in injuries which caused him to suffer a severe bleeding ultimately leading to his death. The origin of the incident in question in the case on hand is that the accused was still trying to trace some information about the deer which he had reared. It is in respect of the afore said incident the accused had come in search of the deceased near his house. It is no doubt true that the prosecution has not placed before the Court any material regarding the altercation that took place between the accused and the deceased but that does not mean that the prosecution has totally suppressed the genesis or the origin for firing the gun. ( 13 ) IT is settled principle of law that each case has to be examined on its own facts and circumstances and that no case is identical to the facts of another case. ( 13 ) IT is settled principle of law that each case has to be examined on its own facts and circumstances and that no case is identical to the facts of another case. In the decision referred to supra, considering the nature of injury that was found, the offence under S. 302, I. P. C. for which the accused was originally convicted was altered to one under S. 304, Part (I), I. P. C. by the High Court and the said finding was confirmed by the Apex Court. In that view of the matter, the decision supra is not wholly applicable to the facts of this case. Therefore, what remains is that from the nature of injuries that are found in this case, they are only on the lower limbs, if the accused had any intention to do away with the life of the deceased, he would have aimed at the chest or the head and it is also in the evidence of the doctor that the cause of death was due to haemorrhage on account of the severe bleeding. If immediate treatment were to have been provided to the accused, it would not have resulted in his death. Therefore we are of the view that the offence falls only under S. 304, Part II, I. P. C. ( 14 ) WE have already had occasion to recount in brief the salient features of the medical evidence and the submissions that have been canvassed in this regard. The fact remains that the injury in question was undoubtedly caused by the fire-arm but that it was located on the left iliac region of the deceased. It is true that the post mortem report indicates that the bone was shattered as a result of the impact and furthermore that several of the blood vessels were ruptured. The evidence of the doctor has also indicated that the deceased had died as a result of shock which was occasioned because of the haemorrhage and we have also taken serious note of the fact that the positive evidence from the doctor namely the question as to whether this injury was sufficient in the ordinary course of nature to cause death has not been elicited by the prosecution. We have also held that the submission canvassed by the learned A. P. P. to the effect that the Court should infer this conclusion is wholly untenable. We have also held that the submission canvassed by the learned A. P. P. to the effect that the Court should infer this conclusion is wholly untenable. In this background, we need to refer to the decision of the Supreme Court reported in 1998 (9) SCC 497 : (1998 Cri LJ 1622) (Ram Prakash Singh v. State of Bihar) wherein, under identical circumstances the Supreme Court held that where the medical evidence does not show that the injury was sufficient in the ordinary course of nature to cause death that the accused could only be convicted under S. 304, Part II and not S. 302, IPC. Furthermore, we need to take note of the fact that in another decision reported in AIR 1999 SC 998 : (1999 Cri LJ 1449) (Ramachandra Ohdar v. State of Bihar), the Supreme Court had considered the important aspect with regard to the nature of injury and the part of the body on which it was inflicted and has laid down the proposition that it is necessary for the Court to consider the implications of these aspects while applying the correct section and has handed down a conviction under S. 326, I. P. C. which was appropriate in that case. In the present case the appellant's learned advocate did vehemently submit that the infliction of the injury on the non vital part of the body, the nature of the injury, the evidence of the doctor that the deceased could easily have survived had he received medical attention at the proper point of time are all factors in favour of mitigating the gravity of the offence but, we need to take note of only one other important circumstance namely that the weapon used was a double barrel gun and having regard to the fact that any injury caused through a weapon of this type would almost always be fatal, in our considered view, it would not be correct to reduce the offence to one under S. 326, I. P. C. because, even if the accused had no intention to cause death the act was serious enough to result in death. Under these circumstances, as indicatedby us earlier the accused is liable to be convicted of the offence punishable under S. 304 (II), I. P. C. ( 15 ) AS far as the subsidiary charges are concerned, though some submissions were advanced to the effect that the evidence does not certify the convictions under S. 448, I. P. C. and S. 506, I. P. C. , we are not inclined to interfere either with the convictions or the sentences and fine awarded under these two heads. ( 16 ) THE appeal partially succeeds. For the reasons indicated by us, we set aside the conviction of the accused under S. 302, I. P. C. and the sentence of rigorous imprisonment for life awarded by the trial Court. In its place, the accused-appellant is convicted of the offence under S. 304 (II), I. P. C. and it is directed that he shall undergo rigorous imprisonment for a period of five years. We maintain and confirm the convictions and sentences awarded to the appellant-accused on the subsidiary charges under Ss. 448 and 506, I. P. C. We however direct that all the sentences shall run concurrently. We further direct that the appellant shall be entitled to set off for the entire period undergone by him in custody. ( 17 ) THE appeal accordingly succeeds partially and stands disposed off. Appeal partly allowed. --- *** --- .