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Madhya Pradesh High Court · body

2007 DIGILAW 417 (MP)

Mohar Singh v. State of M. P.

2007-04-09

S.A.NAQVI, SHEELA KHANNA

body2007
JUDGMENT Miss Khanna, J. -- 1. Challenge in this appeal by the appellant-accused is the impugned judgment and order dated 21.3.1995 passed by Sixth Additional Sessions Judge, Gwalior Camp Dabra, in ST No.247/93, whereby the appellant has been convicted under section 302 of IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.2,000/- and in default of payment of fine to suffer further imprisonment of three months. 2. Appellant-accused Mohar Singh is son of Gulab Singh (acquitted co-accused_. Complainant Harnam Singh (PW 4) is real brother of the deceased Bhagwan Singh. These facts are not disputed. 3. The case of the prosecution in a nutshell, is that on 9.3.1993 at around 1:30 p.m., complainant Harnam Singh (PW4) was going towards Chopal. On way, he saw that the appellant and Ajab Singh (acquitted co-accused) were hurling abuses to his brother deceased Bhagwan Singh. Deceased Bhagwan Singh objected to it. On this, the appellant said "Tera Muha Bahoot Chalta Hai Abhi Thuz Ko Niptata Hun". Ajab Singh then instigated the appellant Mohar Singh to bring his gun. Thereafter, appellant went running to his house and brought muzzle loade gun of his father. Ajab Singh exhorted the appellant to kill the deceased. Thereafter, the appellant fired a shot at the deceased causing injuries over the neck of the deceased, who fell down and died. At that time, Sarman Singh (PW2) was standing nearby and a pellet of the gun hit on his chest. Complainant Harnam Singh (PW4) went to the Police Station Bhitarwar and lodged the first information report (Ex.P-5) and informed about the death of his brother on which Merg intimation (Ex.D-5) was recorded. The Investigating Officer Mahesh Shrivastava (PW8) reached on the spot and prepared spot-map (Ex.P-2). He issued Safina Form (Ex.P-7) to prepare Panchnama of the dead-body of the deceased. Thereafter, Panchnama of the deceased (Ex.P-1) was prepared. Blood stained soil and simple soil were seized vide seizure memo (Ex.P-3). 4. Dr. Ramprasas Saral (PW7) conducted the autopsy on the dead-body of the deceased. He issued Safina Form (Ex.P-7) to prepare Panchnama of the dead-body of the deceased. Thereafter, Panchnama of the deceased (Ex.P-1) was prepared. Blood stained soil and simple soil were seized vide seizure memo (Ex.P-3). 4. Dr. Ramprasas Saral (PW7) conducted the autopsy on the dead-body of the deceased. He found following ante-mortem injuries vide his report (Ex.P-11) : "(1) Circular wound of 1.5 cm x 1 cm with abraded colour on medial aspect and it's margins were inverted to its wound of entrance which was situated on left side of neck and 4.5 cm blow left ear and 6 cm from mid line; (2) Circular wound of 2 cm x 2 cm and it's margins were averted and situated on right side of neck below 5 cm of right neck and 6 cm from mid line." On internal examination, Dr. Saral (PW7) found rupture of right carolid artery and other vital organs of neck due to gun shot injuries. The cause of death was sever haemorrhage as a result of gun-shot injuries. The blood stained clothes - Pent, Shirt, Baniyan and underwear were seized by the doctor and the sealed packet of the clothes were handed over to the police. On medical examination of the injured Sarnam Singh (PW2), a lacerated wound on his chest in left side of size 3-1/2" x 1-1/2" x skin deep was found and clotted blood was found on the wound and the injury was as a result of fire-arm. On X-ray one opacity of metallic density was seen in middle and lateral portion of chest left side vide X-ray report (Ex.P-9). The appellant Mohar Singh and co-accused Gulab Singh and Ajab Singh were arrested. It is alleged that on the basis of memorandum recorded under section 27 of the Evidence Act (vide Ex.P-14) of appellant Mohar Singh and at his instance, a double barrel gun with ten rounds was seized from him. Co-accused Gulab Singh was licensed holder of this gun. All the seized articles-blood stained soil, simple soil, clothes of the deceased, seized double-barrel gun and the rounds were sent for chemical examination to FSL, Sagar. As per report (Ex.P-23) of FSL, Sagar, except on simple soil, and underwear of the deceased, in all other articles blood stains were found. The seized gun was found in working condition and gun-shot holes were found in the shirt and Baniyan of the deceased. As per report (Ex.P-23) of FSL, Sagar, except on simple soil, and underwear of the deceased, in all other articles blood stains were found. The seized gun was found in working condition and gun-shot holes were found in the shirt and Baniyan of the deceased. Thus, according to the prosecution, on the exhortation of co-accused Ajab Singh, the appellant Mohar Singh fired a shot at the deceased Bhagwan Singh by double barrel gun of his father Gulab Singh, resulting the death of Bhagwan Singh. 5. After investigation, charge-sheet was filed against appellant Mohar Singh and against acquitted co-accused Ajab Singh and Gulab Singh. Appellant Mohar Singh and accused Ajab Singh were charged under section 302/34 of IPC and also under section 302 of IPC, whereas acquitted co-accused Gulab Singh was charged for committing an offence under section 30(b) of the Arms Act. Appellant and co-accused abjured their guilt. The defence of the appellant was that on the day of occurrence he was not present in the village but went to his sister's house at Rurar village for Tika on the occasion of "Bhai Duj". It is further the defence of the appellant that the prosecution witnesses are related to each other and inimical with the appellant and that the mother of the appellant had lodged the report against the brother of complainant namely, Kalyan Singh and witnesses Rameshwar and Harnam Singh for an offence under section 436 of IPC and therefore, he has been falsely implicated. At the trial, the prosecution examined in all eleven witnesses. In defence, the appellant has examined his brother-in-law Dolat Singh (DW1). On conclusion of the trial and hearing the arguments on both the sides, the learned trial Court found and held that the prosecution has failed to establish that the appellant in furtherance of the common intention with co-accused Ajab Singh had fired at the deceased and therefore acquitted accused Ajab Singh of the charge under section 302/34 of IPC. The trial Court further held that the offence against co-accused Gulab Singh is also not proved beyond doubt and therefore, acquitted co-accused Gulab Singh of the charge under section 30(b) of the Arms Act. The trial Court further held that the offence against co-accused Gulab Singh is also not proved beyond doubt and therefore, acquitted co-accused Gulab Singh of the charge under section 30(b) of the Arms Act. But the trial Court held that the prosecution has successfully proved it's case that the appellant Mohar Singh had fired by a double barrel gun, causing the death of the appellant and therefore, convicted him under section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.2,000/-, by the impugned judgment, as mentioned earlier. 6. Aggrieved by his conviction under section 302 of IPC and sentence thereon, the appellant has assailed the impugned judgment on the grounds that the alleged eye-witnesses are related and interested witnesses. Injured witness Sarnam Singh (PW2) had sustained a lacerated wound and his presence on the spot becomes doubtful. This witness Sarnam Singh was first medically examined by the doctor and gave statement to the doctor but his earlier statement recorded by the doctor was not produced in the Court which makes the prosecution story doubtful. It is further submitted that this witness has been examined after seventeen days of the incident and there is no explanation of any delay which again makes his statement doubtful. The alleged FIR (Ex.P-5) appears to be ante-timed as it is not proved that the provision of section 157 of CrPC has been complied with. Another witness Kaptan Singh (PW1) is related to the complainant and on inimical term with the appellant and he narrated a new story of quarrel between the deceased and one Baijnath and he has not been declared hostile. Narayan Singh (PW3) is also inimical because a case under section 107 of CrPC is pending against him and he has been examined after 1 and 1/2 months of the incident. There are major contradictions between the statements of the witnesses on the point of distance of firing and also in medical evidence. The trial Court in it's judgment held that it is not proved that the alleged gun was the weapon of offence and, therefore, the prosecution story becomes doubtful. The trial Court has given a finding that Sarnam Singh (PW2) has also received an injury during the incident but the appellant was neither charged for causing any injury to Sarnam Singh nor has been convicted. The trial Court has given a finding that Sarnam Singh (PW2) has also received an injury during the incident but the appellant was neither charged for causing any injury to Sarnam Singh nor has been convicted. On the basis of the above grounds, it is argued and submitted on behalf of the appellant that the prosecution story is doubtful and the appellant is entitled to acquittal. In reply, the learned P.P. appearing for the respondent-State has argued and contended that from the statements of complainant Harnam Singh (PW 4) and alleged eye-witnesses Kaptan Singh (PW1), Sarnam Singh (PW2) and Narayan Singh (PW3) it is clear and proved that the appellant had fired by gun hitting on the neck of the deceased, resulting his death. It is submitted that the prosecution story is supported by the medical evidence and by seizure of blood stained soil, blood stained clothes of the deceased and seizure of gun from the accused. It is argued that the appellant has been rightly convicted by the trial Court and his appeal be dismissed. 7. It is not disputed at this stage, that the deceased Bhagwan Singh S/o Raghuvir Singh aged 25 years resident of village Nunhari has died. Now, the first question for consideration is as to whether the death of the deceased Bhagwan Singh is homicidal in nature? 8. Complainant Harnam Singh (PW4) has clearly stated that the appellant had fired a shot by gun and it's round hit the neck of the deceased, who died on the spot. Sarnam Singh (PW2) and Narayan Singh (PW3) have corroborated the testimony of the complainant. Dr. Ramprasad Saral (PW7) has deposed to have conducted autopsy on 9.3.1993. As per his post-mortem report (Ex.P-11), he found the following injuries : "(1) Circular wound of 1.5 cm x 1 cm with abraded colour on medial aspect and it's margins were inverted to its wound of entrance which was situated on left side of neck and 4.5 cm blow left ear and 6 cm from mid line; (2) Circular wound of 2 cm x 2 cm and it's margins were averted and situated on right side of neck below 5 cm of right neck and 6 cm from mid line." Dr. Saral (PW7) further submitted that the gun shot resulted into rupture of right carolid artery and other vital organs of the neck and due to severe haemorrage the deceased died. Saral (PW7) further submitted that the gun shot resulted into rupture of right carolid artery and other vital organs of the neck and due to severe haemorrage the deceased died. It is not the case of the defence that the fire arm injury sustained by the deceased was either self-inflicted or was as a result of any accident. Therefore, the only conclusion is that the fire arm injury sustained by the deceased was caused to him and his death was homicidal in nature. 9. Now, the crucial question for consideration is as to whether the appellant fired a shot by gun at the deceased causing injury over his neck, resulting his death and the appellant has killed the deceased? 10. Complainant Harnam Singh (PW4) has deposed that on 9.3.1993, at around 1:30 p.m. when he was going from his house to Chauraha, he saw that appellant Mohar Singh and co-accused Ajab Singh were hurling abuses to Bhagwan Singh. Appellant said "You speak too much (Tera Muh Zyada chalta hai). Then, co-accused Ajab Singh said to appellant Mohar Singh to bring his gun. Mohar Singh then went running to his house and brought muzzle loaded gun of his father. Thereafter, Ajab Singh instigated the appellant to kill Bhagwan Singh. On this, appellant fired at the deceased Bhagwan Singh and it's round hit the left side of the neck of Bhagwan Singh, who died on the spot. This witness further stated that the pellet of the gun also hit on the chest of Samam Singh (PW2). Sarnam Singh (PW2) was taken to hospital in a trolley. He further stated that in the same trolley he went upto Nonnadi and from where he went to Bhitarwar Police Station and lodged the first information report (Ex.P-5). Thereafter, Darogaji with police force came with him to village and prepared Panchnama of the dead-body of the deceased (Ex.P-1) and also prepared spot-map (Ex.P-2). The dead-body of the deceased was sent for post-mortem examination. Thus, the complainant Harnam Singh (PW 4) has clearly stated that the appellant had fired by muzzle loaded gun at the deceased, who sustained injury over his neck and died. 11. Sarnam Singh (PW2) and Narayan Singh (PW3) are eye-witnesses of the incident and have fully supported the testimony of the complainant Harnam Singh (PW4). Thus, the complainant Harnam Singh (PW 4) has clearly stated that the appellant had fired by muzzle loaded gun at the deceased, who sustained injury over his neck and died. 11. Sarnam Singh (PW2) and Narayan Singh (PW3) are eye-witnesses of the incident and have fully supported the testimony of the complainant Harnam Singh (PW4). Both these witnesses deposed that the appellant Mohar Singh fired by muzzle loaded gun and it's round hit on the neck of the deceased. Kaptan Singh (PW1) also stated that the appellant went to his house and brought the gun and fired at the deceased causing injury on the neck of the deceased, who died on the spot. In cross-examination, this witness has denied the suggestion of the defence that it is relative of Samam Singh and that Sarman Singh and appellant is in inimical terms. The version of the complainant Harnam Singh (PW2) is again corroborated by the promptly lodged first information report (Ex.P-5) in which the complainant had specifically mentioned that the appellant Mohar Singh went running to his house and brought muzzle loaded gun of his father and fired at the deceased hitting on the neck, who died on the spot. The incident occurred at 1:30 p.m. and the report has been lodged at around 3:05 p.m. within 1 and 1/2 hrs. whereas the distance of the police Station Bhitarwar from the place of occurrence is 24 km. away. Thus, from perusal of the promptly lodged report it does not appear that there was any occasion for the complainant to concoct any false report. 12. The prosecution story is further supported by the medical evidence. It is clear from the statement of the Investigating Officer Mahesh Shrivastava (PW8) that after preparing Panchnama of the dead-body of the deceased, the dead-body was sent for post-mortem. Dr. Saral (PW7) has conducted post-mortem examination on the same day on 9.3.1993 and found that the clothes of the deceased were stained with blood and that there was a circular wound of size 1.5 cm x 1 cm with abraded colour on medial aspect and it's margins were inverted to its wound of entrance which was situated on left side of neck 4.5 cm blow left ear and 6 cm from mid line. He also found another circular wound of 2 cm x 2 cm and it's margins were averted and situated on right side of neck below 5 cm of right neck and 6 cm from mid line. Dr. Saral (PW7) has opined that the gun-shot injury was ante-mortem in nature and as a result of gun-shot injury and due to severe haemorrahge and shock, the deceased had died. Apart from medical evidence, the IO Mahesh Shrivastava (PW8) also seized blood stained soil from the spot which is corroborated by the complainant Harnam Singh (PW4). 13. The learned defence counsel has contended that the complainant Harnam Singh (PW 4) is real brother of the deceased and that Harnam Singh and other alleged eye-witnesses are in inimical terms with the appellant. He submitted that Harnam Singh (PW 4) and other eye-witnesses have admitted that the mother of the appellant Dhankuwarbai has lodged the report against the complainant Harnam Singh and against the witnesses Sarman Singh (PW2), Narayan Singh (P\y3) and Kaptan Singh (PW1) for an offence under section 436 of IPC and the case is pending against them. Similarly, these witnesses have also admitted that a case under section 107 of CrPC has been registered between the parties. Therefore, the learned defence counsel has argued that due to strained relations between both the parties, the witnesses have stated against the appellant. But Harnam Singh (PW4) has stated in para 7 of his cross-examination that the case under section 436 of IPC has been registered after the incident of the present case and proceeding of section 107 of CrPC has also been initiated against both the parties after this case. No suggestion has been given during cross-examination of this witness and there is no evidence on record that there was any dispute between the parties before the incident of the present case. It appears that the case under section 436 of IPC and other case under section 107 of CrPC is the result of the present incident. As there was no dispute between the parties prior to the present incident, therefore, no such conclusion can be drawn that Harnam Singh (PW4) had lodged the report against the appellant due to enmity and other eyewitnesses have falsely implicated the appellant because of the old enmity. 14. As there was no dispute between the parties prior to the present incident, therefore, no such conclusion can be drawn that Harnam Singh (PW4) had lodged the report against the appellant due to enmity and other eyewitnesses have falsely implicated the appellant because of the old enmity. 14. The learned defence counsel has further contended that there are contradictory statements of the witness on the point of distance from where shot was fired by the appellant. It is true that Sarman Singh (PW2) has stated that the distance of the place from where shot was fired was 3 - 3-1/2 feet. But, Dr. Ramprasad Saral (PW7) in para 10 of his statement has stated that looking to the injury of the deceased the shot could have been fired from a distance of more than 4 feet. Harnam Singh (PW 4) has stated in para 20 of his statement that the bullet was fired from a distance of 7-8 feet. But the witnesses Sarman Singh (PW2) and Harnam Singh (PW 4) are villagers and it is not expected from the witnesses of the village to give exact distance of firing. It also depends upon the fact as to where the witnesses were standing at the time of incident and from where they have seen firing the assailant. Even Dr. Ramprasad Saral (PW7) was unable to answer as to exactly from how much distance, the shot was fired. He clearly stated that he could not say as to whether the shot was fired from 25 feet. Therefore, this infirmity on the point of distance from where the fire was made is not at all material. The witnesses have clearly stated that the appellant had fired causing injury on the neck of the deceased. 15. Another argument of learned defence counsel is that Dr. Ramprasad Saral (PW7) could not find any charing, tattooing and blackening on the neck of the deceased and therefore the distance as narrated by the witnesses is not reliable. But, Dr. Saral (PW7) has also made it clear in para 10 of his statement that the distance depends on the fire-arm which was used and the speed of the shot. He has clearly opined that on the neck there was wound of entry and wound of exit which was of fire-arm. But, Dr. Saral (PW7) has also made it clear in para 10 of his statement that the distance depends on the fire-arm which was used and the speed of the shot. He has clearly opined that on the neck there was wound of entry and wound of exit which was of fire-arm. So even if no tattooing, charing and blackening is found, it will not make the prosecution story doubtful on this point. Another infirmity pointed out by the learned defence counsel is that Sarman Singh (PW2) has stated that the bullet entered from the right side of the neck of the deceased and came out from left side. But as per the post-mortem report (Ex.P-11) and as per the statement of Dr. Ramprasad Saral (PW7) the entry wound was on left side and exist wound was on right side and therefore bullet hit on the left side and came out from the right side. Harnam Singh (PW4) and other witnesses have also stated that the bullet hit on the left side of the neck. Sarman Singh (PW2) is an injured in the incident, who was immediately taken to hospital and was admitted for his treatment. He is a villager. It is possible and probable that due to injuries sustained by him, he could not exactly mark properly as to bullet hit on the left side of the neck or right side of the neck. Sometimes it also happens that the villagers do not find out correctly as to which is right side and which is left side. Therefore, even this inconsistency and infirmity in the statement of Sarman Singh (PW2) would not make the prosecution story as doubtful. 16. The next argument on behalf of the appellant is that Dr. Vinod Kumar Gupta (PW6) has examined Sarman Singh (PW2) and found a lacerated wound on his chest and he has opined that the said injury could have been caused by some hard and blunt object. On this ground it is argued that the statement of Sarman Singh (PW2) that he sustained pellet injury is not reliable and his presence on the spot is doubtful. On this ground it is argued that the statement of Sarman Singh (PW2) that he sustained pellet injury is not reliable and his presence on the spot is doubtful. But it has come in the statements of the witnesses that when the appellant fired shot, the bullet hit on the left side on the neck of the deceased and came out from right side and thereafter it's pellet hit on the chest of Sarman Singh (PW2), who sustained injury. Thus, if a bullet would hit and come out and thereafter it's pellet would hit then under these circumstances, lacerated wound is possible. It is pertinent to note that the X-ray was also done of Sarman Singh and Dr. A.K. Jain (PW5) has stated that he found one opacity of metallic density over middle and lateral portion of chest left side. His report is (Ex.P-9). Thus, a pellet was found and it clearly proves that Sarman Singh has sustained fire-arm injury. Dr. Y.K. Gupta (PW6) has also referred Sarnam Singh for X-ray to ascertain whether any pellet is there or not. Thus, it cannot be said that the lacerated wound sustained by Sarman Singh (PW2) was not caused by any fire-arm. 17. It has been contended by the learned defence counsel that the statement of Sarman Singh (PW2) has been recorded by the 10 after 17.18 days and there is no explanation of the delay and on this ground the statement of Sarman Singh (PW2) is not reliable. But Sarman Singh (PW2) has clearly stated that after the incident he was admitted in the hospital and when he came back from the hospital his statement was recorded. The Investigating Officer Mahesh Shrivastava (PW8) has recorded his police statement on 16.3.1993 after he was discharged from the hospital. As per his discharge-ticket (Ex.P-17) this witness was discharged on 10.3.1993. But the Investigating Officer Mahesh Shrivastava (PW8) has stated in para 24 of his statement that he could not go to see Sarman Singh in the hospital and if he had gone he could have definitely recorded his statement. As per his discharge-ticket (Ex.P-17) this witness was discharged on 10.3.1993. But the Investigating Officer Mahesh Shrivastava (PW8) has stated in para 24 of his statement that he could not go to see Sarman Singh in the hospital and if he had gone he could have definitely recorded his statement. It is possible and probable that the IO was busy in investigating the matter further and normally the Station Officer is also busy in law and order situation and since the witness Sarman Singh was admitted in, the hospital and therefore he could not find time to go to the hospital and therefore only because there is delay in recording the statement of witnesses story itself, is not sufficient ground to discredit his testimony. The presence of Sarman Singh (PW2) has been disclosed by other eyewitnesses and his witness has sustained injury in the incident and in the first information report (Ex.P-5) also, it has been clearly mentioned that Sarman Singh was standing on the spot and he sustained injury over his chest. Therefore, looking to these facts, the delay in recording his police statement is not at all fatal to the prosecution. 18. The argument of the learned defence counsel that in this case the motive for committing the offence has not been established is also of no substance because there is clear and cogent evidence of all the above-referred four witnesses, who had seen the incident. If direct evidence is available then to prove motive is not at all necessary. Another submission of the learned defence counsel is that if Sarman Singh (PW2) has sustained injury in the incident then why the appellant could not be charged for causing injury to him. It is true that looking to the first information report (Ex.P-5) and thereafter on investigation it is found that Sarman Singh (PW2) also sustained fire-arm injury and for that charge should have been framed against the appellant but the learned trial Court has considered this aspect in para 16 of it's judgment and has correctly come to the conclusion that if charge under section 324 of IPC was not framed initially and therefore, at the stage of judgment to frame charge against the appellant and to recall all the witnesses would not be proper. Naturally, if the trial Court at the time of framing of the charge, due to inadvertence, could not frame charge against the appellant for causing injury to Sarman Singh, but this itself does not afford any ground to the appellant to entitle him to acquittal. Another submission of learned defence counsel is that Kaptan Singh (PW1) has been declared hostile by the prosecution and therefore, his evidence is not reliable. But on perusal of the statement of Kaptan Singh (PW1) it is clear that he has been declared hostile about the role of acquitted co-accused Ajab Singh. So far as firing of gun-shot by the present appellant and causing bullet injury on the neck of the deceased is concerned, this witness has categorically stated and was throughout constant in his deposition. It is true that Kaptan Singh has admitted that he is in relation with Sarman Singh (PW2), but from para 11 of his statement in cross-examination, it is clear that he has no friendly relation with the complainant Harnam Singh. The presence of Kaptan Singh (PW1) and Narayan Singh (PW3) has been mentioned in the first information report (Ex.P-5) also and therefore, it cannot be said that this witness was subsequently introduced by the prosecution. It is true that the police statement of Narayan Singh (PW3) has also been recorded by the IO after delay of some days but it simply shows the negligence on the part of the IO Mahesh Shrivastava (PW8). The presence of Narayan Singh (PW3) is mentioned in the FIR (Ex.P-5) itself. 19. It is true that the prosecution has not proved the compliance of section 157 of CrPC by sending the copy of the first information report to the concerning Magistrate. But in view of the fact that the first information report (Ex.P-5) has been lodged without any delay and thereafter police party immediately reached on the spot and prepared spot-map (Ex.P-2) on the same day, prepared inquest report on the same day, seized blood stained and simple soil on the same day and sent the dead-body of the deceased on the same day and therefore under these circumstances there should not be any doubt that the first information report was ante-timed or ante-dated. 20. 20. So far as seizure of fire-arm in the case is concerned, the learned trial Court has rightly held that the two independent witnesses of the alleged memorandum and seizure memo, have not been examined by the prosecution and, therefore, recovery of gun at the instance of appellant is not proved. But it will not adversely effect the prosecution case in view of the clear and reliable evidence of the eye-witnesses namely, Harnam Singh (PW4), Sarman Singh (PW2), Kaptan Singh (PW1) and Narayan Singh (PW3), who proved that the appellant had fired by his muzzle loaded gun causing injury on the neck of the deceased. The learned defence counsel has also pointed out some other inconsistencies and infirmities in the statements of the witnesses but on careful scrutiny of the evidence on record, these inconsistencies and infirmities were found minor and not on material points. All the four eye-witnesses Kaptan Singh (PW1), Sarman Singh (PW2), Narayan Singh (PW3) and Harnam Singh (PW4) have remained constant in the statements that the appellant had fired by gun causing injury on the neck of the deceased, resulting his death. Nothing has come out in their cross-examination to discredit their testimony. Their evidence is supported by promptly lodged first information report (Ex.P5) and by the medical evidence. Therefore, the learned trial Court has rightly come to the conclusion and held that it was appellant who fired a shot causing injury on the neck of the deceased, resulting his death. 21. Now, the only question remains for consideration is as to whether the intention of the appellant was to kill the deceased? Learned counsel appearing for the appellant, relying upon the case of Surendra Singh @ Bittu v. State of Uttaranchal, reported in 2006(2) Crimes 167 (SC), has vehemently argued and submitted that the prosecution has failed to establish the genesis of the occurrence and that the appellant has caused a single gun-shot injury to the deceased that too on being instigated by co-accused Ajab Singh, who has been acquitted by the trial Court and therefore under these circumstances, it cannot be, said that the appellant has committed an offence under section 302 of IPC. But according to him, the offence would fall under section 304 Part II of IPC. But according to him, the offence would fall under section 304 Part II of IPC. Learned counsel submitted that the appellant has already suffered imprisonment of more than seven years and six months and he is first offender and he should be released on the sentence already undergone by him. In the above cited case, there had been hot exchange of words and no witness had proved the actual genesis of occurrence and the accused had fired only a single gun-shot on the instigation of his brother and the deceased died, then in these circumstances, the apex Court held that offence would fall under section 304 Part II of IPC and not under section 302 of IPC. We have meticulously considered the evidence in this case in the light of the above submission of the learned counsel for the appellant. The alleged eyewitnesses Sarman Singh (PW2), Narayan Singh (PW3), Harman Singh (PW4) and Kaptan Singh (PW1) have deposed that the appellant was abusing the deceased who objected to it and then Ajab Singh (acquitted co-accused) instigated the appellant Mohar Singh to bring his gun and on this, the appellant went running to his house, brought muzzle loaded gun of his father and on instigation by Ajab Singh, the appellant fired a shot on the deceased. None of these witnesses have disclosed as to what was the cause or reason by the appellant to abuse the deceased. It has also come in the evidence that it was a Holi day. Narayan Singh (PW3) has admitted in para 13 of his statement that before this incident there was no dispute or quarrel between the appellant and the deceased. Harnam Singh (PW4) has also admitted in para 8 that there was neither any quarrel nor I any dispute between the deceased and appellant Mohar Singh. When in cross-examination it was asked as to how the quarrel took place then Hamam Singh Singh (PW4) in para 22 has simply stated that the appellant wanted to make an influence on the deceased (Bhagwan Singh Pe Rob Jamane Ke Liye). But in the report (Ex.P-5) or in the police statement (Ex.D-5) this witness has not mentioned about the fact that the appellant wanted to make an influence or show his influence. But at the same time, he admitted that before the incident, there was no dispute between the deceased and the appellant. But in the report (Ex.P-5) or in the police statement (Ex.D-5) this witness has not mentioned about the fact that the appellant wanted to make an influence or show his influence. But at the same time, he admitted that before the incident, there was no dispute between the deceased and the appellant. The appellant had caused a single gun-shot injury, on being instigated by co-accused Ajab Singh. Thus, if there was no dispute or quarrel or enmity before the incident and it has not been made clear by the witnesses as to what was the cause or reason for hurling abuses then certainly it can be inferred that the genesis of the occurrence has not been established in this case, though, it is proved beyond doubt that the appellant fired a gun-shot injury to the deceased resulting his death. Therefore, in view of the observation made by the apex Court in the case of Surendra Singh @ Bittu v. State of Uttaranchal [2006(2) Crimes 167 (SC)], the offence committed by the appellant would not fall under section 302 of IPC, but in our considered view, the offence would fall under section 304 of IPC. 22. So far as sentence is concerned from the record it is clear that the appellant was arrested on 15.3.1993 and during trial he remained in custody and after the impugned judgment he has been granted bail vide an order dated 8.9.2000 passed in this appeal. Thus, he has suffered imprisonment of seven years and six months and if remission part is considered then this sentence would be around more than nine years. The incident is of the year 1993 and the appellant has suffered mental agony of this case for more than fourteen years. No fruitful purpose would serve to send him again in jail after 14 years. The appellant has no previous criminal history. Looking to the overall facts and circumstances of the case, the imprisonment already suffered by the appellant with fine of Rs.15,000/- (Rs. Fifteen thousands only) would meet the ends of justice. 23. Consequently, in view of the discussions in the foregoing paragraphs, this appeal is partly allowed. The appellant has no previous criminal history. Looking to the overall facts and circumstances of the case, the imprisonment already suffered by the appellant with fine of Rs.15,000/- (Rs. Fifteen thousands only) would meet the ends of justice. 23. Consequently, in view of the discussions in the foregoing paragraphs, this appeal is partly allowed. The conviction of the appellant under section 302 of IPC and sentence thereon is set aside but instead he is convicted under section 304 of IPC and sentence thereon is set aside but instead he is convicted under section 304 Part I of IPC and sentenced to suffer imprisonment already undergone by him and also to pay a fine of Rs.15,000/- (Rs. Fifteen thousands only) and in case of default in payment of fine, he shall suffer further imprisonment of one year. The fine amount be deposited within three months in the trial Court. If the fine amount is not deposited within three months then the appellant shall surrender himself before the trial Court for undergoing the sentence as awarded to him in default of payment of fine. If he does not surrender then the trial Court is directed to take all steps necessary to execute the sentence.