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2007 DIGILAW 613 (GAU)

Amolok Singh v. State of Tripura

2007-09-13

R.B.MISRA, UTPALENDU BIKAS SAHA

body2007
JUDGMENT U.B. Saha, J. 1. The present appeal is directed against the judgment dated 06.09.2001 passed by the Sessions Judge, North Tripura, Kailashahar in case No. S.T 3 (NT/K) of 2000 wherein the appellant Amolok Singh was convicted under Section 302 IPC and sentenced to suffer imprisonment for life and also to pay fine of Rs. 20,000/- (Rupees twenty thousand), in default, to suffer R.I. for two years. The learned Trial Court also passed order that the sentence will run concurrently. 2. We have heard Mr. P.K. Biswas, learned Counsel for the appellant and Mr. D. Sarkar, learned P.P., Tripura assisted by Mr. R. Debnath, learned Counsel for the respondent. 3. The prosecution case, in short, is that: From 21.04.1996 one Platoon of C-Coy, 93 Bn CRPF was deployed to guard the election materials kept in the Strong Room of the SDO Office, Kailashahar, in which the appellant Amolok Singh as well as S.I. Bahadur Singh were also members. On 30.04.1996 at about 2200 hrs to 2400 hrs Constable Rakesh Kumar (PW 1), Constable Rajmani Saikia (PW 2) and Constable Ramjiban Ram were on guard duty of the aforesaid strong room, during check roll, conducted by one Sub Inspector, Bahadur Singh, the Platoon Commander, found the accused appellant, Amolok Singh, absent in the Guard Room of the SDO Office, who was on guard duty from 2000 to 2200 hrs. After about ten minutes, when some other CRPF personnel were standing in the process of dispersing, the said Amolok Singh, appellant returned and the Sub Inspector Bahadur Singh asked him why he was not present during the check roll. On hearing such query ofsaid Bahadur Singh, the convict appellant, Amolok Singh, became furious and aggressive and went inside his room and took his SLR bearing Butt No. 250, Body No. 0205 and opened fire to the Platoon Commander, S.I. Bahadur Singh. And as a result of the said fire, S.I. Bahadur Singh died on the spot. One bullet also hit one Nandji Yadav, Havildar, on his head, who was on patrolling duty in front of the strong room complex and he also died. Thereafter, the platoon personnel disarmed the said Amolok Singh, appellant. The said incident was informed to the Officer-in-Charge, Kailashahar, P.S. at about 11 p.m. of that night. 4. One bullet also hit one Nandji Yadav, Havildar, on his head, who was on patrolling duty in front of the strong room complex and he also died. Thereafter, the platoon personnel disarmed the said Amolok Singh, appellant. The said incident was informed to the Officer-in-Charge, Kailashahar, P.S. at about 11 p.m. of that night. 4. Narrating the aforesaid facts, an FIR was also lodged with the Kailashahar, P.S. by one S.D. Sharma, O.C. C-Coy, 93 Bn CRPF, Kailashahar on 01.05.1996. The said FIR was registered being Kailashahar RS. Case No. 75 of 1996 under Section 302 IPC. 5. On receipt of the FIR Police started investigation and on completion of investigation, submitted charge sheet against the convict appellant for committing offence under Section 302 IPC for killing S.I. Bahadur Singh and Havildar Constable, Nandji Yadav. 6. On receipt of the charge-sheet the learned Chief Judicial Magistrate North Tripura, Kailashahar took cognizance of the offence and committed the case to the court of learned Sessions Judge, North Tripura, Kailashahar for trial. The learned Sessions Judge, accordingly, framed charge against the convict/appellant under Section 302 IPC for an offence of culpable homicide amounting to murder, of S.I. Bahadur Singh and Havildar Constable, Nandji Yadav of C. Coy 93 Bn CRPF by firing shots from SLR bearing Butt No. 250 and Body No. 0205 to which the convict appellant pleaded not guilty and claimed to be tried. 7. During the course of trial, the prosecution examined as many as 11 (eleven) witnesses, including the Company Commander, S.D. Sharma, PW 7 (informant), Constable Raj Moni Saikia, PW 2 claimed to be eyewitness, PW 3. Constable Gopi Ram Yadav and Constable Shantaram PW 6 claimed to be eye-witness along with other witnesses including official witnesses and also adduced a number of documents and materials including Diary in respect of Guard Duty. Defence taken by the accused/convict appellant before the Trial Court, as would notice from the record is of total denial and also adduced no evidence, except his statement under Section 313 Cr.PC. 8. Mr. Defence taken by the accused/convict appellant before the Trial Court, as would notice from the record is of total denial and also adduced no evidence, except his statement under Section 313 Cr.PC. 8. Mr. P.K. Biswas, learned Counsel appearing for the convict appellant, while making submission for proving the innocence of the convict appellant, mainly raised the following points: (i) Whether the appellant can be convicted for committing murder of S.I. Bahadur Singh using fire arm, i.e. the SLR while the same was not allotted to him, rather the said SLR was allotted to PW 2, Raj Moni Saikia and what should be the effect for non-consideration of the said fact by the Trial Court: (ii) Whether the appellant can be convicted while there are contradictions between the evidence of PW Nos. 1, 6 and 2 regarding the time of occurrence as it is evident and whether the findings of the Trial Court regarding the conviction and sentence under Section 302 IPC is sustainable: (iii) If the convict appellant committed the alleged offence of murder, then also whether he is guilty for an offence of culpable homicide amounting to murder under Section 300, punishable under Section 302 IPC of culpable homicide not amounting to murder under Section 299 of IPC punishable under Section 304 Part-I or Section 304 Part-II, while the fact of abuse to the appellant by the deceased, Bahadur Singh is evident from the prosecution evidence and quarrel thereof. 9. In support of his aforesaid contentions he submits that the convict appellant was on sentry duty from 8 pm to 10 pm during the intervening night of 30.4.96 and 1.5.96 with his SLR bearing Butt No. 255 Body No. 5203 not with SLR Butt No. 250 Body No. 0205 for guarding the strong room at the office of the Kailashahar, SDO Office where the election materials were kept and there were three other sentries, one on patrolling duty of the said SDO Office. Admittedly the alleged offence was committed by using the SLR Butt No. 250 Body No. 0205. 10. Admittedly the alleged offence was committed by using the SLR Butt No. 250 Body No. 0205. 10. To strengthen his aforesaid contention he relies on Ext P/9, Diary in respect of guard duty wherein it is mentioned that on the date of incident the SLR bearing Butt No. 255 Body No. 5203 was allotted to him and SLR bearing Butt No. 250 Body No. 0205 which was used for committing the alleged incident, was allotted to Raj Moni Saikia, PW 2. Hence, any reasonable person can presume that the aforesaid two deceased persons were killed by PW 2, Raj Moni Saikia, not by the convict appellant as admittedly the SLR allotted to him bearing Butt No. 255 Body No. 5203 was never used for committing murder to the deceased persons namely, Bahadur Singh and Nandji Yadav. 11. He also contends that in the FIR it is specifically mentioned that the appellant Amolok Singh went inside and took his SLR Butt No. 250 Body No. 0205 from his room and after coming out of the room he shot dead S.I. Bahadur Singh and while firing on him, one bullet also hit Havildar Constable Nandji Yadav, there is no mention in the FIR that the said SLR Butt No. 250 Body No. 0205 was allotted to Raj Moni Saikia, PW 2 and the same was used by him while he was on duty though the said fact was known to the informant and available in the Diary regarding guard duty, and admittedly the SLR Butt No. 250 Body No. 0205 was used for killing the victim deceased persons, and the same was done only to implicate the appellant accused and to save PW 2 Raj Moni Saikia. 12. In support of the aforesaid point No.2, Mr. Biswas contends that according to PW 2, Raj Moni Saikia, the occurrence took place on 30.4.1996 at about 10/10.15 pm and S.I. Bahadur Singh the check roll at around 10.15 to 10.20 p.m. and according to PW 6, S.I. Bahadur Singh did the check roll at 10.10 p.m. hence it can be easily presumed that the alleged occurrence took place at about 10/10.15 p.m. i.e. before the check roll/roll call by the deceased S.I. Bahadur Singh. And while it is evident from the FIR that the convict appellant allegedly came from outside at about 2230 hrs and it can also be safely presumed that at the time of occurrence the convict appellant was not present at the place of occurrence, therefore the question of his committing the alleged offence does not arise at all, he is an innocent who would be entitled to be acquitted. He also urges that from the evidence of PW 5, who was tendered by prosecution, it is not possible to see the southern side from the northern side of the strong room by any person. Therefore, it can be easily presumed that it was not possible for PW 2 to see the appellant took his SLR from his bed or not as alleged. He also submitted that if the prosecution witnesses have not been declared hostile/tender and even then those witnesses of the prosecution like the PW 1 and PW 2 support the case of defense then the defense is entitled to rely on the same and entitled to get the benefit of those evidence, not the prosecution in support of his aforesaid contention Mr. Biswas, relied on the decision of the Apex Court in the case of Kunju Muhammed @ Khumani and Ors. v. State of Kerala reported in (2004) 9 SCC 193 and in the case of Raja Ram v. State of Rajasthan reported in (2000) 5 SCC 272. Learned Counsel contends that evidence of prosecution witnesses, PW 1, PW 2 and PW 6 cannot be believed in its entirety for the purpose of convicting the convict/appellant for such heinous offence like murder while he is innocent as their evidences are not trustworthy. Learned Counsel contends that evidence of prosecution witnesses, PW 1, PW 2 and PW 6 cannot be believed in its entirety for the purpose of convicting the convict/appellant for such heinous offence like murder while he is innocent as their evidences are not trustworthy. He further urges that the statement of PW 6 is in no way believable as according to P W 6, he slept in the room after switching off the rooms light, for which it was/is not possible for him to see when S.I. Bahadur Singh came up for check roll and there is nothing in his statement that he woke up from sleep at the time of roll call and also the statement to the effect that he saw the convict appellant at the time of taking the SLR Butt No. 250 belongs to PW 2 for discharging duty from the bed of PW 2 cannot be believed as the same was made by him for the first time in court, said statement is nothing but an improved version which cannot be used for the purpose of convicting the appellant who is otherwise innocent, while the I.O. of the case PW 9 Shib Shankar Chakraborty also stated in his statements that PW 6 is a seizure witness and his statement was never recorded under Section 161 CrPC. Learned Counsel further contended that while PW 6 in his statement stated that at around 8.30 pm, after taking meal he slept in the room by switching off the room's light, hence, the roll call done by the deceased S.I. Bahadur Singh as well as the alleged occurrence of murder could not be seen by him, unless he woke up from sleep at the time of roll call, but, there is nothing in his evidence that he woke up at any time before the check roll after 8.30 pm. Therefore, on that count also the statement of PW 6 should be disbelieved and ignored. 13. In support of his submission regarding the effect of improved statement in the court and how far the said statement can be used in a criminal trial against the accused, he referred to the case of Yazid Ali and Anr. v. State of Tripura reported in (1996) 2 GLR 99 : 1996 (3) GLT 473, particularly para 37 and 39 and he also relied the case of G.S. Bakshi etc. etc. v. State of Tripura reported in (1996) 2 GLR 99 : 1996 (3) GLT 473, particularly para 37 and 39 and he also relied the case of G.S. Bakshi etc. etc. v. State (Delhi Administration) reported in AIR 1979 SC 569 , para 16. He again pointed out that when there was no statement under Section161 CrPC before the Police by a witness like PW 6, it should not be believed as the same was made for the purpose of implicating the accused. He relied the case of Ram Lakhan Singh and Ors. v. State of Uttar Pradesh reported in AIR 1977 SC 1936 para 37 in support of his aforesaid contention. 14. He further urges that, if PW 2 is to be believed then PW 6 cannot be believed and if PW 6 is believed then PW 2 cannot be believed, as both of them contradict each other regarding time of occurrence. And according to him, if the statement of one of the witnesses proves the innocence of the accused convict/appellant, then he is entitled to get the benefit of the same, as it is by this time settled that "where the prosecution leads two sets of evidence where one contradicts the other, it is difficult to form the conviction of the accused." In support of his aforesaid contention he relied upon the case of Harchand Singh and Anr. v. State of Haryana reported in 1974 CriLJ 366. 15. In support of point No. 3 as raised, Mr. Biswas, submits that the learned Trial Court failed to notice the fact stated by Raj Moni Saikia, PW 2, wherein he specifically stated that at around 10.20 p.m., Amolok Singh, the convict appellant returned to the camp and when asked by the deceased Bahadur Singh why he was not remained present, he told Bahadur Singh that he went to latrine and so he was not found at the time of roll call and S.I. Bahadur Singh abused him and told that the matter would be reported to the higher authority and at that moment Amolok Singh took the rifle from the bed of Raj Moni Saikia, PW 2 and started firing which caused death of S.I. Bahadur Singh. The said statement is also not corroborated by PW 1, Rakesh Kumar. Referring to the aforesaid statement of PWs 1 and 2, Mr. The said statement is also not corroborated by PW 1, Rakesh Kumar. Referring to the aforesaid statement of PWs 1 and 2, Mr. Biswas contended that the alleged murder though not admitted to be committed by convict appellant, but even if for the arguments sake, it is admitted that the said S.I. Bahadur Singh and Havildar Constable Nandji Yadav were killed by the convict appellant then also the same was the result of prior abuse/provocation by S.I. Bahadur Singh and the fire arm was not used with the intention to kill the deceased persons. Rather it was used due to heat of passion as abused/provoked by the S.I. Bahadur Singh. Hence the convict appellant is at best guilty of an offence under Section 304 Part-II, not under Section 302 IPC for committing murder, in alternative Section 304 Part-I. The Trial Court failed to notice the aforesaid aspect, for which itself also the conviction and sentence passed by the learned Trial Court under Section 302 IPC is liable to be set aside and the appellant may be sentenced for the period which had already been suffered by him i.e. about 7 years under Section 304 Part-II. 16. Mr. Biswas also contends that even if the evidence of the prosecution is fully believed then also the appellant is not liable to be convicted under Section 302 IPC as he did not commit any offence under Section 300 IPC and at best he committed an offence under Section 299 of the IPC, which is punishable under Section 304 IPC Part-II, in the alternative Part-I. 17. To show what ingredients are required for an offence under Section 299 i.e. culpable homicide, and for an offence under Section 300, i.e. murder, and what are the distinctions between the aforesaid offences, he refers to the decision of Rajinder v. State of Haryana reported in 2006 AIR SCW2987. He finally submits that the present appellant is entitled to be acquitted, of the charge on the benefit of doubt, and the offence, if committed, comes within the purview of Section 299 of the IPC punishable under Section 304 IPC Part-II, in the alternative Part-I. 18. Mr. Biswas, finally contends as to what would be the proper sentence, if this Court accepts the argument of the learned PP, to the effect that the offence committed under Section 299 punishable under Section 304 Part-I or Part-II. Mr. Biswas, finally contends as to what would be the proper sentence, if this Court accepts the argument of the learned PP, to the effect that the offence committed under Section 299 punishable under Section 304 Part-I or Part-II. According to him, due to alleged incident the petitioner had already lost his service and since 6.9.01, the date of conviction he has been suffering the sentence in jail. And the period of sentence, which he had already suffered, would suffice for the offence committed by him. He also urges that the court may set aside the conviction and sentence, passed by the learned trial court and modify the same to the extent as prayed for by him. 19. The learned PP, Mr. D. Sarkar, strenuously resists the submission of learned Counsel for the appellant contending that despite the appellant being a member of disciplined force, is very much aware of the effect of using the fire arm, he used the SLR with an intention to kill the S.I., Bahadur Singh and Havildar Constable Nandji Yadav, bearing Butt No. 250 and Body No. 0205 which was allotted to Raj Moni Saikia PW 2, after taking the same from the bed of PW 2. From the evidence of PWs 1 and 2, it is undisputed that the convict appellant is the person who killed the aforesaid two deceased persons. He also contended that mere allotment of SLR Butt No. 250 Body No. 0205 to Raj Moni Saikia cannot be a ground to come to the conclusion that the appellant did not use the same for killing the deceased persons while all the prosecution witnesses, particularly PWs 1 and 2, the eye-witnesses of the occurrence and stated that after returning from outside, while the appellant was asked by the deceased Bahadur Singh, where he was and the matter regarding his absence during the roll call would be informed to the higher authority, then the appellant went to the bed room of Raj Moni Saikia, PW 2 and took the rifle bearing Butt No. 250 Body No. 0205 allotted to him and used the same and started firing aiming to the deceased Bahadur Singh, as a result of which he was shot dead and one Havildar Constable, Nandji Yadav was also injured by one bullet and died. Therefore, it is established that the appellant killed the deceased persons by way of using fire arms with a specific intention and there is no enmity between the prosecution witness and the appellant and the deceased persons. Even the convict appellant did not state anything in his statement under Section 313 CrPC before the Trial Court. Therefore, the prosecution witnesses should not be disbelieved by this Court and the judgment of the learned trial court should not be quashed and/or altered. Mr. Sarkar, while resisting the submission of Mr. Biswas, learned Counsel for the appellant referred the case of State of W.B. v. Mir Mohammad Omar and Ors. 2000 CriLJ 4047. 20. Regarding the time of occurrence, as stated by PWs. 2 and 6, it is nothing but an omission, not contradiction and the said omission cannot be used against the prosecution while the evidence of the eye-witnesses establish that the occurrence took place after the check roll when the convict appellant entered into the camp area i.e. within the premises of SDO Office, Kailashahar, Mr. Sarkar, learned P.P. contended. 21. Mr. Sarkar, learned PP also submits that it is admitted position that the SLR bearing Butt No. 250 Body No. 0205 was allotted to PW 2 Raj Moni Saikia at the relevant time. But the same was not used by him on the intervening night; rather it was used by the convict appellant as evident from almost all the prosecution witnesses. Mr. Sarkar also contended that it was possible on the part of PW 6 to see which rifle was taken by the convict appellant while he was going for duty, as at the relevant time PW 6 was in the room from where the convict appellant took the SLR being Butt No. 250 Body No. 0205 which was allotted to PW 2, Raj Moni Saikia as at that time he was not sleeping. And it is also admitted position from the report of the ballistic expert, PW 8 that fire had already been occurred from the SLR bearing registration No. 1517026 Butt No. 250 Body No. 0205 and he also found gas fouling inside the barrel of the said SLR. 22. To appreciate the controversies raised by the parties in this appeal, it will be proper to discuss the relevant portions of the statements of prosecution witness Nos. 22. To appreciate the controversies raised by the parties in this appeal, it will be proper to discuss the relevant portions of the statements of prosecution witness Nos. 1, 2, 3, 6 and the evidences which are mainly relied upon by the prosecution and the relevant portions of statements of other witnesses as well. 23. PW 1, Constable Rakesh Kumar, who was, at the time of incident, on sentry duty along with Raj Moni Saikia PW 2 and Ramjiban Ram who was not produced and examined; stated that in the intervening night of the incident his duty was from 9 pm to 11 pm and at around 10.10 pm, S.I. Bahadur Singh, the deceased came there for check roll to verify whether proper duty was being done by them and also for verification whether jawans on duty were present or not. And during roll call the appellant Amolok Singh was not there. At around 10.20 pm the appellant Amolok Singh returned to the camp and as asked by the deceased Bahadur Singh, Amolok Singh told that he went to latrine and so he was not found at the time of roll call. But S.I. Bahadur Singh abused him and told that the matter would be reported to the higher authority. At that moment, the appellant Amolok Singh rook the rifle from the bed of Raj Moni Saikia, PW 2 and started firing, and as a result, Bahadur Singh was shot dead and one Havildar namely Nandji Yadav who was on patrolling duty was also killed by the appellant. Thereafter, the appellant fired inside the room and L.N.K. Ram Bhajan Singh disarmed him. In his cross, PW 1 stated that they were allotted three rooms in the middle portion of the building joining two sides of the building running from north to south. And at the time of occurrence he was standing behind the rooms allotted for their accommodation in the northern side and Raj Moni Saikia, PW 2 was standing just close to the strong room towards eastern side. The distance between their rooms and that of the strong room would be about 5/6 yards and Raj Moni Saikia, PW 2 used to sleep in the room which is situated to the extreme west side and the distance between his room and his point of duty would be about 15/20 yards. The distance between their rooms and that of the strong room would be about 5/6 yards and Raj Moni Saikia, PW 2 used to sleep in the room which is situated to the extreme west side and the distance between his room and his point of duty would be about 15/20 yards. Check roll was conducted by the deceased S.I. Bahadur Singh near to the strong room. 24. Raj Moni Saikia, PW 2 who was reported to be an eye-witness, who was on duty close to the strong room stated in his chief that the occurrence took place on 30.4.1996 at about 10/10.15 pm in the office of the SDO, Kailashahar and on the intervening night of incident his duty was from 10 pm to 12 pm in the back side of the strong room. At around 10.15 pm to 10.20 pm the deceased S.I. Bahadur Singh did the Check roll and appellant, Amolok Singh was found absent. He also corroborated the evidence of PW 1 and PW 6 to the effect that at the relevant time he along with Ram Jiban Ram, Rakesh Kumar and Nandji Yadav were on duty and the appellant Amolok Singh was not on duty nor was he in the guard room area. At around 10.20 pm, Amolok Singh, appellant returned and S.I. Bahadur Singh abused him for not remaining present, then Amolok Singh took up a rifle from his bed and started firing. And due to the said firing S.I. Bahadur Singh died. Then also he fired and due to the said fire, Havildar Constable Nandji Yadav also died. Then the L.N.K. Ram Bhajan Singh disarmed the appellant, Amolok Singh and finally he stated in his chief that the rifle which was used by Amolok Singh is No. 250 (Butt). In his cross he also stated that the said rifle No. 250 (Butt) is the rifle allotted to him and the said Amolok Singh the appellant was relieved by him from performing his sentry duty. 25. PW 3, Gopi Ram Yadav, Coy Hav. Major, on the intervening night he was at the CRPF Head Quarters near Kailashahar Old Airport and he was informed regarding the incident by L.N.K. Ram Bhajan Ram, the seizure witness, stated in his cross that the 7.62 SLR balls ammunition 43 was seized in his presence and he identified his signature in the seizure list. Major, on the intervening night he was at the CRPF Head Quarters near Kailashahar Old Airport and he was informed regarding the incident by L.N.K. Ram Bhajan Ram, the seizure witness, stated in his cross that the 7.62 SLR balls ammunition 43 was seized in his presence and he identified his signature in the seizure list. But he stated that those seized articles were not before the Court on that day and some of those seized 43 balls were taken to the Company Head Quarter. He further stated that those seized SLR was issued to Raj Moni SaikiaPW2. In his cross, PW 3 stated that on 1.5 1996 the I.O. of the case seized one SLR and three blank magazines Butt No. of SLR is 250 and also 13 fired cases by preparing a seizure list, in which he was witness. 26. PW 5, Pratap Singh, the night guard of the SDO Office, Kailashahar was produced before the trial court but he was tendered by the prosecution and in his cross he stated that the middle building is towards east/west due to the existence of the building in the middle portion from north side to south is invisible. And in the southern side of the middle building there is the strong room and from the eastern side of the strong room the western side cannot be seen. 27. PW 6, Constable Santaram in his chief stated that from 10 pm to 10.30 pm, four CRPF personnel namely, Raj Moni Saikia, Rakesh Kumar, Ram Bhajan Ram and Nandji Yadav, deceased were on duty and he was present in the room allotted for them in the SDO Office, Kailashahar. The Platoon Commander, Bahadur Singh did the check roll at about 10/10.10pm. Since Amolok Singh was found absent in the roll call and after a while he came, there was a quarrel between the Platoon Commander, Bahadur Singh and Amolok Singh, the accused appellant. He also stated that at around 8.30 pm after taking meal he slept in the room after switching off the rooms light and they used to keep their rifles by the side of their beds. He also stated that at around 8.30 pm after taking meal he slept in the room after switching off the rooms light and they used to keep their rifles by the side of their beds. He, in his chief also stated that the Platoon Commander abused Amolok Singh as he was absent and not found and, prior to Saikia's duty there was duty of Amolok Singh and while Amolok Singh went for duty he took the rifle of Saikia and then Saikia performed his guard duty with the rifle Amolok Singh and Saikia's Rifle was lying in the bed. He further stated that Amolok Singh fired at the platoon commander, Bahadur Singh and killed him and thereafter he killed Havildar Nandji Yadav with the rifle. Then also fired inside the room and L.N.K. Ram Bhajan disarmed Amolok Singh. In his cross, he stated that he has made the statement to the I.O. of the case and whatever he deposed on that day before the court was also narrated to the Officer Commanding i.e. P.W. 7, S.D. Sharma. He also confirmed in his cross that Amolok Singh performed guard duty with the rifle of Raj Moni Saikia and Raj Moni Saikia also performed his duty with the rifle of Amolok Singh. 28. PW 7, S.D. Sharma, Company Commander of CRPF, C-Coy 93 Bn stated in his chief that he got the information of the incident from Havildar Gopi Ram at about 10.45 pm on 30.4.1996 that Constable Amolok Singh shot one S.I. Bahadur Singh and Havildar Nandji Yadav at the SDO Complex, Kailashahar while they were on duty. And he immediately informed regarding the incident to the Commander of 114 Bn CRPF under whose command his company is and within 15 minutes the Commander came and met with him at Paiturbazar point and both of them rushed to the P.O. at about 11 pm. When they reached the place of occurrence L.N.K. Ram Bhajan informed that during check roll the accused Amolok Singh was found absent and after roll call Amolok Singh appeared there and Bahadur Singh asked him where he was and in reply Amolok Singh told him that he was in the latrine. When they reached the place of occurrence L.N.K. Ram Bhajan informed that during check roll the accused Amolok Singh was found absent and after roll call Amolok Singh appeared there and Bahadur Singh asked him where he was and in reply Amolok Singh told him that he was in the latrine. Then Bahadur Singh told Amolok that he was absent for long time and he would report the matter to the O.C. immediately and Amolok Singh told him not to report the matter on that night and at that moment appellant Amolok took out a gun from one bed and shot Bahadur Singh and subsequently Nandji Yadav and due to his firing both of them died on the spot. And while he was being told about the incident Gopiram was with them. He also stated that the firing was done by Amolok Singh with the rifle of Raj Moni Saikia and Saikia was doing his duty with the rifle of accused Amolok Singh. (Every personnel is given rifle one each to perform duty.) 29. PW 8, Shri Kali Dhar Deb Barma, Ballistic expert, who examined the fire arm allegedly used for committing the offence i.e. SLR bearing Regn. No. 15170206 Butt No. 250 Body No. 0205 and thirteen empty cartridges and three magazines, in his statement stated that he examined the aforesaid SLR and 13 empty cartridges and three magazines which was sent for examination. After examining the same he opined that the rifle is an ordinance factory made rifle 7.62 mm (SLR) and the rifle was found in unloaded position and serviceable condition and from the said rifle (SLR) fire can be opened in two positions either single or automatic and as the SLR is firearm and action of fire can cause death of any life from the distance of 500 to 600 yards and according to him, fire have already occurred by this rifle recently, as the gas fouling is found inside its barrel. 7.62 mm ammunitions are fit for fire by this rifle. In his chief he also stated that the report was written by office reader Constable No. 2093 Abu Sayed Miah on his direction and dictation and after going through the said report he found that the same has been correctly written and he put his signature which is marked as Ext P/8. His signature is marked as Ext P. 8/1. 30. His signature is marked as Ext P. 8/1. 30. PW 9, Shri Shib Sankar Chakraborty, who was posted at Kailashahar P.S. as S.P. (DIB) Office on the intervening night stated that he was examined by the prosecution as the O.C., Kailashahar P.S., the then Shri B.P. Rout could not be examined by the prosecution as he already expired before the trial. He stated in his chief that he worked with the said B.P. Rout, O.C. Kailashahar, P.S. the then and he is acquainted with the hand writing and signature of late Rout. According to him, on 1.5.96 the said O.C. received one Ejahar from one S.D. Sharma O/C C 93 Bn CRPF, Kailashahar and the said FIR was received by S.I. Arun Sku, at SDO complex Kailashahar, on 02.05 hours as the said Arun Sku, S.I., worked under him he knew the hand writing and signature of the said Rout. The said Arun Sku is not posted at Dhalai and almost blind and unable to read and write. The said written FIR of S.D. Sharma was received by OC, Kailashahar PS on 1.5.96 on 0405 hrs and registered under Section302 IPC. He also stated that there was a telephonic information from the SDO (Civil) at 2300 hrs of 30.4.96 that a firing took place in the SDO office complex Guard room and that was entered in the PS GD entry vide No. 1477. The GD entry No. 1477 and 1480 were written by the Duty Officer, S.S. Das who is now dead. And he knows his hand writing and signature which he identified. S.I., Arun Sku, started investigation after receipt of the FIR and during investigation he prepared hand sketch map. The said Arun Sku also prepared dead body challan for the deceased S.I. Bahadur Singh and Nandji Yadav and sent the dead bodies to RGM Hospital, Kailashahar. In the hand sketch map 'L' denotes light post having emergency connection. He also seized SLR, fired bullets, 3 magazines, one Guard Book, carbine by preparing seizure lists. He also collected the PM reports and made arrangement for examination of the seized SLR by the said expert and almost he completed the investigation of the case and at that time PW 9 joined as O.C. Kailashahar, P.S. and took up the investigation. As per order of the authority he sent the said SLR to CFSL, Calcutta for examination and report. As per order of the authority he sent the said SLR to CFSL, Calcutta for examination and report. And before receipt of the report he was transferred from the PS and he handed over the case to S.K. Bhowmik, and he also deposed that in the case Diary it is mentioned that PW 6 is a seizure witness and no such statement of the said witness is recorded under Section 161 CrPC just to avoid repetition. In his cross-examination he stated that in the FIR nothing was mentioned about the scribe and regarding the bullet marks on the outside wall of the building. Nothing was mentioned in the Case Diary. 31. PW 10, Shri Sanjay Kr. Bhowmik, another I.O. deposed that he joined as OC, Kailashahar PS on 15.11.1998 and took up the investigation of the case. He obtained report of CFSL Calcutta in two sheets and thereafter he submitted charge sheet against the accused persons under Section 302 IPC. 32. PW 11, Dr. Biswajit Sinha, who is the medical officer, deposed that in the month of May, 1996 he was posted as medical officer at RGM Hospital, Kailashahar, an MBBS and has been serving under the Health Department for the last 13 years and during that period he carried out post-mortem for so many cases. He deposed that he carried out P.M. examination on the dead body of Bahadur Singh and found the following injuries. Scalp, rigor mortis present, approx 5'10" height. He found the wound position as follows: Multiple fire-arm punctured and lacerated wounds on right chest wall, right upper limb, left shoulder, on chin. That, in his report he has described everything in details as follows: 1) An entrance wound of fire-arm on right lateral chest wall 5" below axilla on anterior axillary line, 1 1/2" sixe pleural cavity. 2) An exit wound of fire-arm on right chest wall on mid axillary line, 3" below axilla, 4" x 5" deep to the pleural cavity. On identification the report of P.M. Examination was marked Ext. P/21 and signature of the witness was marked Ext P/21/1. He further deposed that he and Dr. P. Dasgupta worked in the same hospital and he is acquainted with the hand writing and signature of Dr. P. Dasgupta. That, said Dr. On identification the report of P.M. Examination was marked Ext. P/21 and signature of the witness was marked Ext P/21/1. He further deposed that he and Dr. P. Dasgupta worked in the same hospital and he is acquainted with the hand writing and signature of Dr. P. Dasgupta. That, said Dr. Dasgupta carried out the P.M. Examination on the dead body of Nandji Yadav in connection with Kailashahar P.S. Case No. 75/ 96 and submitted P.M. Report on 13.5.96. He identified the said P.M. Report with signature of Dr. P. Dasgupta, P.M. Report of Dr. P. Dasgupta has been marked Ext. P/22 and signature of Dr. Dasgupta has been marked Ext. P/22/1. On examination of deceased Nandji Yadav, Dr. P. Dasgupta found the following injuries: 1. Scalp lacerated over occipital region. 2. 1/2" dia circular wound of entrance with churned skin around. Left frontal bone pierced in the middle, occipital bone missing. 3. Entrance wound 1/2" diameter over the 6th intercostal space on the right posterior axillary line. 4. Wound of exit over 3rd and 4th intervostal space on the left mid axillary line 1" dia circulars. 33. We have given our thoughtful consideration to the aforesaid points of arguments raised on behalf of the parties as well as the evidences available on record including the documents exhibited. 34. To appreciate the arguments of the learned Counsel for the parties, it would be proper for us, firstly to consider the meaning of "motive", "intention" and "knowledge". As motive and intention are the sine qua non for committing an offence under Section 300 i.e. murder, punishment of which is prescribed under Section 302 IPC with imprisonment for life and shall also be liable to fine and for committing an offence under Section 299, culpable homicide, not amounting to murder, for which punishment is prescribed under Section 304 Part-I, imprisonment either for a description of two years, if the act by which the death is caused was done with intention of causing death, or of causing such bodily injury as is likely to cause death. Under Section 304 Part II, punishment is imprisonment of either description for a term which may extend to 10 years or with fine or with both, if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or cause such bodily injury as is likely to cause death. 35. "Intention" means to do a certain thing, purpose, design, contemplating any result "Knowledge" means acquaintance with the fact or truth or mental impression or belief. Motive means will, desire, and reason for doing such act. However, killing of man or murder comes within the purview of culpable homicide. But, every culpable homicide is not murder. 36. The distinction between culpable homicide amounting to murder as laid down under Section 300IPC and culpable homicide not amounting to murder under Section 299 for both the offence, intention and knowledge are the important features to be taken into consideration by the Court of law based on certain circumstances of each case. In the case of Rajinder (supra) the Apex Court discussed about culpable homicide and murder as well as distinction between the aforesaid two offences. In para 16 of the said report the Apex Court held as under: 16. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences: A person commits culpable homicide if the act by which the death is caused is done. Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done. Intention (a) With the intention of causing death; or (b) With the intention of causing such bodily injury as is likely injury as is likely to cause death; or (c) With the knowledge of that the act is likely to cause death. Intention (a) With the intention of causing death; or (b) With the intention of causing such bodily injury as is likely injury as is likely to cause death; or (c) With the knowledge of that the act is likely to cause death. (1) With the intention of causing death, or (2) With the intention causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or Knowledge (C) With the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death of such injury as is mentioned above. 37. Now the question for determination is as to whether the appellant acted with intention or knowledge. In the case of Nayab Singh v. State of Rajasthan reported in 2007 (2) Crimes 663 , their Lordships of Rajasthan High Court held that intention is the subjective element which reflects from the conduct of the accused and it must be coupled with some idea of killing, whereas knowledge is the awareness of the consequence of the act "obviously degree of knowledge which any particular person can be assumed to possess must vary." The distinction of knowledge and intention are essential question of the fact. Normally if the injury is inflicted on the vital part of the body with deadly weapon it can be categorized as intentional act of man slaughter or killing. But if it is inflicted under abnormal circumstances, then it may fall under the category of knowledge for causing such bodily injury. In the instant case, from the evidence of PW Nos. 1, 2 and 6, admittedly it appears that there was a quarrel between the deceased Bahadur Singh and appellant Amolok Singh and Amolok Singh was abused by the deceased Bahadur Singh for his alleged absence at the time of check roll and the appellant went to the guard room and took the alleged SLR Butt No. 250 Body No. 0205 from the bed of PW No. 2. Thereafter he started firing to the deceased Bahadur Singh due to which Bahadur Singh was shot dead and he further continued to fire and as a result, Havildar Constable Nandji Yadav also died. The aforesaid act was caused by the appellant as provoked by the deceased Bahadur Singh, not with specific intention. And it is also clear from the evidence of prosecution witness that there was no prior motive on the part of the appellant for killing or causing death of the deceased persons. In such situation, where there is no other apparent motive from the evidence, the act of the accused like the appellant can be termed as the act of knowledge coupled with bodily injury on the vital part of the deceased persons due to firing by the appellant. Therefore, in our view, this is a case which falls under the category 3 of Section 299 IPC, punishable under Section 304 Part-II IPC and not under Section 300 IPC punishable under Section 302 IPC. 38. In the instant case, the name of the accused was disclosed by all the eyewitnesses, i.e. PW No. 1, Rakesh Kumar, PW No. 2, Raj Moni Saikia and PW No. 6, Shantaram and also the name of the appellant was disclosed by PW 7 while he lodged FIR. It also appears that the appellant was disarmed by the L.N.K. Ram Bhajan. The aforesaid prosecution witnesses were cross-examined at length by the defence, but nothing fruitful could be illustrated from their mouths, that could favour the appellant and there is no such evidence of enmity or biasness either alleged or proved against any of the aforesaid eye witnesses. Not only that the ocular version brought on record by the prosecution witness also corroborated and find support from the statement of PW 11, Dr. Biswajit Sinha, Medical Officer who had done the autopsy on the dead body of Bahadur Singh. 39. In view of the aforesaid discussions and keeping in mind the aforesaid points of arguments raised on behalf of the appellant and evidence on record, the short point for our determination is as to whether the case of the appellant falls under any of the exceptions to Section 300 IPC to punish the appellant for culpable homicide not amounting to murder, as defined under Section 304 Part-II IPC? As it is there in the statements of eyewitnesses that there was sudden quarrel between the deceased Bahadur Singh and the accused appellant and the deceased Bahadur Singh also abused the appellant and threatened him that he will report regarding the fact of absence of the appellant at the time of check roll to the higher authority. And after such quarrel/abuse and threat the appellant went to the guard room and took the SLR of PW 2 from his bed and ultimately he had opened fire from the said rifle which hit the deceased Bahadur Singh as well as Nandji Yadav. Admittedly, there was no previous enmity or any ill will of the appellant against the deceased persons. All these facts established from the record, so that the incident in question took place without premeditation, rather it all happened in a sudden quarrel and in the heat of passion. That too when the appellant stated that he did not go outside the barrack, he was in the latrine and thereafter also he was abused and threatened by the deceased. Therefore, we do not think that the learned Trial Court has properly appreciated this aspect of the prosecution case when he found the appellant guilty of murder and punished him under Section 302 IPC. 40. From the submission of learned Counsel for the parties as well as from the evidence on record and laws laid down by various courts including the Apex Court as relied on, by the parties, this Court is of the opinion that on the available facts, it can be held that the appellant was not aware about the cause of his act and there might not be any intention to kill the deceased. But it was very much within his knowledge being a member of disciplined force that the firing on vital part of the persons is likely to cause death of those persons including the deceased, which he did in the instant case. 41. In view of our foregoing discussions we are of the considered opinion that the appellant is guilty of an offence punishable under Section 304 Part-II IPC, not under Section 302 IPC. 42. Hence, we set aside the impugned conviction and sentence of imprisonment for life rendered by the learned Trial Court under Section 302 IPC. 41. In view of our foregoing discussions we are of the considered opinion that the appellant is guilty of an offence punishable under Section 304 Part-II IPC, not under Section 302 IPC. 42. Hence, we set aside the impugned conviction and sentence of imprisonment for life rendered by the learned Trial Court under Section 302 IPC. Instead, we convict the appellant under Section 304Part II IPC and sentence him R.I. for the period of 6 years i.e. the sentence already suffered (during pendency of the appeal) with a fine of Rs. 30,000/- and in default of payment of fine, shall further suffer R.I JOT 4 years under Section 304 Part-II, IPC 43. If the result appeal is partly allowed. 44. Before parting with this judgment it is made clear that out of the amount of fine, if realized, Rs. 15,000/- each shall be paid as compensation to the wives of the deceased persons namely, Bahadur Singh and Nandji Yadav. 45. In case the wives are not alive, then the same should be paid to the legal heirs of the deceased persons.