Judgment :- (Criminal Appeal against the judgment of conviction and sentence dated 22.1.2003 in S.C.No.160 of 2002 on the file of the Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Namakkal.) M.Karpagavinayagam, J. For having caused the death of one Kalthotti Chinnasamy, by shooting with a country-gun on 20.12.2000, Kozhukkattai Chinnasamy, the appellant herein, was convicted for the offences under Section 302 IPC and under Section 25(1-B)(a) of the Indian Arms Act and sentenced to undergo life imprisonment and to pay a fine of Rs.500/- and rigorous imprisonment for two years and to pay a fine of Rs.100/- respectively. Both the sentences were ordered to run concurrently. Challenging the said conviction and sentence, the appellant/accused has filed this appeal. 2. The short facts leading to the conviction are as follows: (a) The deceased Kalthotti Chinnasamy and the accused Kozhukkattai Chinnasamy were closely related to each other. P.W.1 Kalthotti Kavitha recently got married to P.W.3 Kozhukkattai Muthusamy. Accused Kozhukkattai Chinnasamy is the brother of P.W.3. (b) P.Ws.1 and 3 arranged for a dinner on 20.12.2000 in their house. Therefore, they invited their family friends and relatives. In pursuance of the said invitation, P.W.2 Kalthotti Vellaiyan and his brother, viz.,the deceased Kalthotti Chinnasamy, both went to the house of P.W.1 Kalthotti Kavitha. Other relatives, viz., P.W.4 Chennumathi Chandran, P.W.5 Sottha Shanmugam and P.W.6 Balasundaram (Village Administrative Officer) were also present. (c) In the evening of 20.12.2000, they went to various places and killed the pigs and distributed the pig fork to all their relatives and brought a portion of it to the house of P.W.1 Kalthotti Kavitha. After cooking, the food was served to all persons. After finishing their food, the witnesses and the accused were talking together in front of the house of P.W.3 Kozhukkattai Muthusamy. (d) During the course of conversation, there was an altercation between the accused Kozhukattai Chinnasamy and P.W.5, Sottha Shanmugam, his brother-in-law. Deceased Kalthotti Chinnasamy intervened and tried to pacify the accused and P.W.5. Having felt irritated over his intervention, accused Kozhukkattai Chinnasamy abused the deceased Kalthotti Chinnasamy and questioned him as to how he could intervene in the quarrel between the accused and his brother-in-law P.W.5 Sottha Shanmugam. Deceased Kalthotti Chinnasamy intervened and tried to pacify the accused and P.W.5. Having felt irritated over his intervention, accused Kozhukkattai Chinnasamy abused the deceased Kalthotti Chinnasamy and questioned him as to how he could intervene in the quarrel between the accused and his brother-in-law P.W.5 Sottha Shanmugam. (e) So saying, the accused left the place and ran to his house and within a few minutes, he came with a country-gun and a battery-light tied on his head and aimed at the deceased and shot at him. The accused thereafter ran away from the scene of occurrence. (f) The deceased fell down and then all of them gathered in the scene of occurrence. On hearing the news, P.W.7 Kalthotti Suresh, the son of the deceased came to the scene of occurrence. The deceased told them that they need not take any effort to take him to the hospital as he would die soon, and requested them to lift and put him in front of the house of the accused, which is situated nearby. Accordingly, the victim-deceased was lifted and left in front of the house of the accused. Within a few minutes, the deceased died. (g) P.W.1 Kalthotti Kavitha and P.W.2 Kalthotti Vellaiyan, the brother of the deceased, went to P.W.6 Village Administrative Officer (V.A.O) and gave a statement regarding the occurrence. Then, P.W.6 V.A.O. came to the scene of occurrence. He found that the deceased was dead. Then he prepared a report and obtained signatures from both P.Ws.1 and 2. (h) Thereafter, P.W.6 V.A.O, along with P.Ws.1 and 2, went to Valavanthinadu Police Station and gave Ex.P-1 complaint to P.W.14 Sub-Inspector of Police. (i) On 21.12.2000 at about 10.00 a.m., P.W.14 Sub-Inspector of Police registered the case in Crime No.215 of 2000 for the offences under Section 302 IPC and under Section 25(1-B)(a) of the Indian Arms Act and the complaint as well as the F.I.R. was sent to the concerned Court. A message was also given to P.W.15 Inspector of Police. (j) P.W.15 Inspector of Police took up investigation at about 11.30 a.m. and went to the scene of occurrence along with P.W.6 V.A.O. He prepared Ex.P-2 observation mahazar and Ex.P-21 rough sketch. Then, he conducted inquest between 1.00 p.m. and 3.30 p.m. and examined the witnesses. Ex.P-22 is the inquest report. Then, the body was sent for conducting post-mortem. (j) P.W.15 Inspector of Police took up investigation at about 11.30 a.m. and went to the scene of occurrence along with P.W.6 V.A.O. He prepared Ex.P-2 observation mahazar and Ex.P-21 rough sketch. Then, he conducted inquest between 1.00 p.m. and 3.30 p.m. and examined the witnesses. Ex.P-22 is the inquest report. Then, the body was sent for conducting post-mortem. (k) P.W.10 Doctor conducted post-mortem on 22.12.2000 at about 2.00 p.m. He issued Ex.P-11 post-mortem certificate and gave an opinion that the deceased would appear to have died of shock and haemorrhage due to fire-arm injury about 30 to 48 hours prior to the post-mortem examination. (l) P.W.15 Inspector of Police took steps to arrest the accused. In the meantime, he received an information that the accused surrendered before the Judicial Magistrate on 27.12.2000. Subsequently, police custody was obtained on 3.1.2001. On the confession of the accused, M.O.1 country-gun was recovered from him in the presence of P.W.6 V.A.O. under Ex.P-4 mahazar. (m) In the meantime, the material objects were sent for chemical analysis and for ballistic expert's opinion. After obtaining sanction in respect of the offence under Section 25 (1-B)(a) of the Indian Arms Act and after completion of the investigation, P.W.15 Inspector of Police filed the chargesheet. (n) During the course of trial, P.Ws.1 to 15 were examined, Exs.P-1 to P-23 were marked and M.Os.1 to 6 were marked. (o) When the accused was questioned under Section 313 Cr.P.C., he simply denied the offences and stated that he was not residing in the village in question on the date of occurrence and he has been permanently residing in one village called Nachipudur. (p) Even though alibi had been pleaded, the accused has not produced any document to establish the same. However, he examined one Karuvada Chandran as D.W.1. According to D.W.1, P.W.3 Kozhukkattai Muthusamy informed him on the date of occurrence that there was a dead body in front of his house and he went and saw that the same was that of the deceased and informed the villagers. According to D.W.1, nobody knew at that time who was the assailant. (q) The trial Court, after having considered the evidence available on record, found the accused guilty of the offences referred to above and convicted him thereunder. Hence, this appeal. 3. According to D.W.1, nobody knew at that time who was the assailant. (q) The trial Court, after having considered the evidence available on record, found the accused guilty of the offences referred to above and convicted him thereunder. Hence, this appeal. 3. Mr.K.V.Sridharan, learned counsel appearing for the appellant/accused would make the following submissions in order to substantiate that the prosecution has failed to establish its case beyond reasonable doubt: (i) There has been unexplained delay in lodging the complaint with the police. The occurrence took place on 20.12.2000 at about 9.30 p.m. Ex.P-1 complaint was given by P.W.6 V.A.O. only next day at about 8.00 a.m. P.W.14 Sub-Inspector of Police registered the case at about 10.00 a.m. and the F.I.R. reached the Court only at about 3.00 p.m. on that day. This delay had not been explained by the prosecution. Admittedly, distance between the place of occurrence and Police Station is only 17 Kms. (ii) The prosecution has not explained as to why both P.Ws.1 and 2 signed in Ex.P-1 complaint. The same cannot be acted upon since the author of the F.I.R., viz., P.W.1 turned hostile. (iii) The fact that P.W.7 Kalthotti Suresh heard the oral dying declaration made by the deceased, has not been mentioned in Ex.P-1 complaint, which is the earliest document. So, the evidence relating to oral dying declaration is not reliable. (iv) The ballistic expert's report and the post-mortem report are not consistent with the ocular testimony tendered by P.W.2 Kalthotti Vellaiyan. The post-mortem report does not indicate as to when exactly the occurrence had taken place and as to when the deceased died. The ballistic expert's report would not support the case of the prosecution as there is no clear-cut opinion as to whether the pellets taken out from the body of the deceased, had been used through the country-gun recovered from the accused. 4. At the end, learned counsel for the appellant/accused, as an alternative argument, would submit that even assuming that the entire prosecution case is true, the occurrence had taken place only out of sudden quarrel and at the most, the accused could be convicted only for the offence under Section 304 (Part-II) IPC and not under Section 302 IPC. 5. In reply to the above submissions, Mr.E.Raja, learned Additional Public Prosecutor would submit as follows: "The delay cannot be said to be unexplained. 5. In reply to the above submissions, Mr.E.Raja, learned Additional Public Prosecutor would submit as follows: "The delay cannot be said to be unexplained. On the other hand, both in Ex.P-1 complaint and in the evidence of P.W.2 Kalthotti Vellaiyan, the delay had been properly explained. The oral dying declaration tendered by P.W.7 Kalthotti Suresh would corroborate the evidence of P.W.2 Kalthotti Vellaiyan, P.W.9 ballistic expert and P.W.10 Doctor who conducted post-mortem, would corroborated the evidence. The evidence relating to recovery of the country-un had been spoken to by P.Ws.14 and 15 (investigating officers) which would add strength to the case of the prosecution. There is no reason as to why P.W.2 Kalthotti Vellaiyan, who is related to the accused, had to falsely implicate the accused. P.W.6 V.A.O. has given details regarding the statement obtained by him from both P.Ws.1 and 2 and as such, his evidence cannot be rejected and consequently, the conviction and sentence imposed on the appellant/accused by the trial Court are liable to be confirmed". 6. Both the counsel, in order to substantiate their respective pleas, would cite several authorities. 7. We have given our thoughtful consideration to the rival contentions urged by the learned counsel for both the parties. 8. There is no evidence to show that there was long-standing enmity between the parties. It is not the case of the prosecution that these witnesses are inimically disposed of with each other. 9. According to the prosecution, deceased Kalthotti Chinnasamy and his elder brother P.W.2 Kalthotti Vellaiyan went to the house of P.W.3 Kozhukkattai Muthusamy on 20.12.2000 at about 7.00 p.m., since P.W.3 and his wife P.W.1 Kalthotti Kavitha had invited them for dinner in their house. After finishing their food, the accused, who is the elder brother of P.W.3, picked up wordy quarrel with P.W.5 Sottha Shanmugam, namely the sister's husband of the accused. In order to pacify them, the deceased intervened and asked both of them not to quarrel. The accused got irritated over the conduct of the deceased in interfering with the affairs of the accused and his brother-in-law. Then, the accused abused the deceased. Ultimately, he proclaimed that he would go to his house and bring his country-gun and shoot at him. The accused got irritated over the conduct of the deceased in interfering with the affairs of the accused and his brother-in-law. Then, the accused abused the deceased. Ultimately, he proclaimed that he would go to his house and bring his country-gun and shoot at him. So saying, he rushed to his house which is situated nearby and brought M.O.1 country-gun and came very near to the deceased (at a range of nearly 5 feet), aimed at the deceased and shot at him, with the result, the pellets entered into portion of the stomach. Then, people who were there, cried aloud and the accused ran away from the scene of occurrence. The deceased, on receipt of the pallet injuries, fell down and blood was gushing out and then, on hearing the noise, P.W.7 Kalthotti Suresh, the son of the deceased and other relatives, came to the scene of occurrence and enquired the deceased. At that time, the deceased told them that he was shot at by the accused. They took steps to take him to the hospital. The deceased asked them not to make any arrangement for taking him to hospital, as he would die soon. However, he requested the people standing by his side to take him and put him in front of the house of the accused. Accordingly, he was taken and made to lie down in the pial of the house of the accused and within a few minutes, he died. Thereafter, P.Ws.1 and 2 went to the house of P.W.6 V.A.O. to give a complaint and P.W.6 V.A.O. recorded their statements and then came to the scene for verification and on 21.12.2000, P.W.6 V.A.O. took both of them to the Police Station and gave a report. P.W.14 Sub-Inspector of Police registered the same for the offences referred to above. 10. The prosecution has relied upon the following pieces of evidence: (i) P.W.2 Kalthotti Vellaiyan speaks about Ex.P-1 complaint. (ii) P.W.7 Kalthotti Suresh referred to the oral dying declaration made by the deceased to him. (iii) P.W.9 ballistic expert examined both the country-gun and the pallets and gave Exs.P-6 and P-8 ballistic reports. (iv) Ex.P-7, the requisition for the chemical analysis of the material objects, sent by the Chief Judicial Magistrate to the Forensic Laboratory. (v) P.W.10 Doctor who conducted post-mortem gave his opinion in Ex.P-11 post-mortem certificate. (iii) P.W.9 ballistic expert examined both the country-gun and the pallets and gave Exs.P-6 and P-8 ballistic reports. (iv) Ex.P-7, the requisition for the chemical analysis of the material objects, sent by the Chief Judicial Magistrate to the Forensic Laboratory. (v) P.W.10 Doctor who conducted post-mortem gave his opinion in Ex.P-11 post-mortem certificate. (vi) P.W.6 V.A.O and P.W.15 Inspector of Police speak about the arrest of the accused and recovery of the country-gun. 11. As correctly pointed out by the learned counsel for the appellant/accused, though there are several eye-witnesses, who are relatives of both the deceased and the accused, only one witness has given a statement in support of the prosecution case. All the other witnesses, namely P.W.1 Kalthotti Kavitha, P.W.3 Kozhukkattai Muthusamy, P.W.4 Chinumathi Chandran and P.W.5 Kotha Shanmugam, turned hostile. As a matter of fact, P.W.1 Kalthotti Kavitha, who is the author of F.I.R., also turned hostile. The only evidence available is P.W.2 Kalthotti Vellaiyan. 12. It is strenuously contended by the learned counsel appearing for the appellant/accused that P.W.2's evidence is not acceptable, especially when his statement is not corroborated by other materials. According to the learned counsel, when the long delay for lodging the complaint with the Police, has not been explained, P.W.2’s evidence cannot be relied upon. 13. The above said contention, in our view, does not merit consideration, for the reason that admittedly, the occurrence took place in a hill area and the people residing there are tribal people. 14. According to the prosecution, when the people tried to take the deceased to the hospital, the deceased, who was conscious about his serious condition, asked others not to take him to the hospital, as he would die within a few minutes and thereafter, he died. Admittedly, distance between the place of occurrence and Police Station is 17 Kms. The delay has been explained in Ex.P-1 complaint by saying that it was nighttime and no vehicle was available and they could come to meet P.W.6 V.A.O only in the morning. 15. Admittedly, distance between the place of occurrence and Police Station is 17 Kms. The delay has been explained in Ex.P-1 complaint by saying that it was nighttime and no vehicle was available and they could come to meet P.W.6 V.A.O only in the morning. 15. According to P.W.6 V.A.O., who is an independent witness and who has no enmity towards the accused, would state that only on 21.12.2000 at about 8.00 a.m., the witnesses came and gave statement and after recording their statements, he went to the scene of occurrence and ascertained that the deceased died and thereafter, he took both P.Ws.1 and 2 to the Police Station and handed over the complaint to the Police at about 10.00 a.m. 16. In view of the fact that the delay has been properly explained by P.Ws.2 and 6, we cannot hold that the said delay would be fatal to the case of the prosecution, especially when it is not established that this delay had been used by the prosecution to implicate more than one person. This is a case where single accused is involved and therefore, it cannot be said that in order to falsely implicate the accused, this delay had been utilised by the prosecution. On a reading of Ex.P-1 complaint, it is clear that both P.Ws.1 and 2 have given the statement to P.W.6 V.A.O. On going through Ex.P-1 complaint and on perusing the signatures found available in Ex.P-1 complaint, it is seen that both of them gave statement and admittedly, both of them signed in Ex.P-1 complaint. 17. So, if such a statement was recorded by P.W.6 V.A.O as the statement given by both P.Ws.1 and 2, which has also been signed by them, the mere fact that P.W.1 turned hostile, could not be a ground to reject Ex.P-1 complaint, which is the earliest document in the case, especially when P.W.2 Kalthotti Vellaiyan supports the prosecution case and Ex.P-1 complaint contains the signature of P.W.2. 18. Thus, a reading of Ex.P-1 complaint would clearly indicate that P.W.2 Kalthotti Vellaiyan also was present in the place of occurrence and he along with P.W.1 Kalthotti Kavitha, gave Ex.P-1 complaint to P.W.14 Sub-Inspector of Police. 19. Next piece of evidence is P.W.7 Kalthotti Suresh, relating to the oral dying declaration. 20. 18. Thus, a reading of Ex.P-1 complaint would clearly indicate that P.W.2 Kalthotti Vellaiyan also was present in the place of occurrence and he along with P.W.1 Kalthotti Kavitha, gave Ex.P-1 complaint to P.W.14 Sub-Inspector of Police. 19. Next piece of evidence is P.W.7 Kalthotti Suresh, relating to the oral dying declaration. 20. It is contended that the fact that the oral dying declaration was given to P.W.7, has not been mentioned in Ex.P-1 complaint. But, on verification of Column No.9 of Ex.P-22 inquest report, it is seen that there has been a clear mention of the oral dying declaration made by the deceased to his son P.W.7 Kalthotti Suresh. Therefore, we cannot reject the evidence of P.W.7 also, on the ground that the said fact has not been mentioned in Ex.P-1 complaint, the report given by P.W.6 V.A.O. 21. Next aspect is with reference to the ballistic expert's evidence and the evidence of P.W.10 Doctor, who conducted post-mortem. 22. Much was said about the absence of arrack in the stomach of the deceased. It is argued that the time of death has not been correctly mentioned by P.W.10 Doctor who conducted post-mortem. 23. We are not impressed by the said argument for the reason, as correctly pointed out by the learned Additional Public Prosecutor that there is no specific evidence that the deceased also took arrack before taking food. On the other hand, P.W.10 Doctor's evidence coupled with Exs.P-11 post-mortem certificate, would clearly indicate that the stomach contained partly digested food particles. 24. As held by the Supreme Court in Ram Bali vs. State of U.P. (2004 S.C.C. (Cri) 2045), the time of death cannot be accurately given and it can be only approximate and as such, the Doctor's evidence being an opinion, cannot be rejected merely on the ground that it cannot be the accurate time of death. It is worthwhile to refer to the following observation made by the Supreme Court in the above decision:- "10. .... the plea that the medical evidence is contrary to the ocular evidence has also no substance. It is merely based on the purported opinion expressed by an author. Hypothetical answers given to hypothetical questions, and mere hypothetical and abstract opinions by textbook writers, on assumed facts, cannot dilute evidentiary value of ocular evidence if it is credible and cogent. .... the plea that the medical evidence is contrary to the ocular evidence has also no substance. It is merely based on the purported opinion expressed by an author. Hypothetical answers given to hypothetical questions, and mere hypothetical and abstract opinions by textbook writers, on assumed facts, cannot dilute evidentiary value of ocular evidence if it is credible and cogent. The time taken normally for digesting of food would also depend upon the quality and quantity of food as well, besides others. It was required to be factually proved as to the quantum of food that was taken, atmospheric conditions and such other relevant factors to throw doubt about the correctness of time of occurrence as stated by the witnesses. Only when the ocular evidence is wholly inconsistent with the medical evidence the Court has to consider the effect thereof. ..." 25. The Supreme Court in Mangu Khan vs. State of Rajasthan (2005 M.L.J. (Crl.) 705), relating to the fixing the time of death, would make the following observation:- "The post-mortem report of the deceased, certified that the death had occurred within 24 hours of the post-mortem and also stated rigor mortis had set in. The rigor mortis developing all over the body may depend upon various factors such as constitution of the deceased, season of the year, the temperature in the region and the conditions under which the body had been preserved. The record indicated that the body was taken from the mortuary. The presence of rigor mortis all over the body would not lead to the inference that the death should have occurred beyond 24 hours. There is no inconsistency between the ocular evidence and medical evidence." 26. In the light of the above observations of the Supreme Court, we cannot reject the evidence of P.W.10 Doctor who conducted the post-mortem and who gave opinion in Ex.P-11 post-mortem certificate, in view of the observation of the Supreme Court that the time of death is only approximate as the exact time of death could not be given. 27. Yet another argument was advanced that the ballistic expert's evidence is not clear and as such, it cannot be taken as a corroborative piece of evidence to support the prosecution case. 28. The said argument also in our view, does not merit acceptance. 27. Yet another argument was advanced that the ballistic expert's evidence is not clear and as such, it cannot be taken as a corroborative piece of evidence to support the prosecution case. 28. The said argument also in our view, does not merit acceptance. Evidence of P.W.9 ballistic expert and Exs.P-6 and P-8 ballist reports would clearly indicate that the pellets which had been taken out from the body of the deceased, were used by the single smooth bored fire-arm and P.W.9 ballistic expert, who examined the gun recovered from the accused in this case, would certify that it was a single smooth bored fire-arm as it had been recently used. Under those circumstances, it cannot be said that the ballistic expert's evidence through Exs.P-6 and P-8 ballistic reports, would not corroborate the evidence of P.W.2 Kalthotti Vellaiyan. 29. It is the case of the accused that he did not belong to the village where the occurrence had taken place and he was not present in the said village as he was staying 2 kms. away from the scene-village at the time of the occurrence. This stand of the accused cannot be accepted, because he himself put a suggestion to P.W.2 and other witnesses that purposely the body of the deceased was taken from the house of P.W.3 and put it in front of the house of the accused. Further, D.W.1 also would admit in his cross-examination that the accused had owned a house in the scene-village. 30. Under those circumstances, we are of the considered view that the materials placed before the Court would clearly indicate that the accused alone had perpetrated the crime by shooting at the deceased, resulting in the death of the deceased. 31. It is the alternative submission with reference to the nature of offence. 32. According to the learned counsel for the appellant/accused, since there was a quarrel and consequent to the quarrel, the occurrence had taken place, it must be construed that the accused did not shoot at the deceased with an intention to kill him and at the most, the offence is only culpable homicide not amounting to murder attracting the offence under Section 304 (Part-II) IPC. 33. The above said contention is untenable. 33. The above said contention is untenable. According to the prosecution, there was a quarrel between the accused and P.W.5 and the deceased intervened and having felt irritated over the intervention of the deceased, the accused got angry towards the deceased and challenged him that he would go to his house and bring the country-gun and shoot at him. Immediately thereafter, he went to the house which is situated nearby, brought the gun and shot at him, with the result, the deceased sustained fatal injury. Though initially there was a quarrel, it cannot be said that the act had been committed either under Exception 1 to Section 300 IPC due to sudden and grave provocation or under Exception4 to Section 300 IPC whereby, under a heat of passion, without taking advantage of the situation, he had not acted in a cruel manner. It is the case where the accused stood near the deceased and shot at the deceased, aiming at his chest, causing his death. Therefore, in our view, the act committed by the accused would clearly fall under Section 302 IPC and as such, the accused is liable to be convicted only for the offence under Section 302 IPC. 34. With reference to the offence under Section 25(1-B)(a) of the Indian Arms Act, it is to be stated that admittedly, no licence was obtained for the country-gun being used and as such, the conviction for that offence also is clearly made out. 35. For the foregoing reasonings, the appeal is dismissed, confirming the conviction and sentence imposed on the accused by the trial Court for the offences under Section 302 IPC and Section 25(1-B)(a) of the Indian Arms Act.