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2009 DIGILAW 655 (JK)

Subash Chander v. State Of J. &K.

2009-12-18

MOHAMMAD YAQOOB MIR, VIRENDER SINGH

body2009
Virender Singh, J. 1. Vide this judgment, we intend to dispose of Criminal Appeal No.06/2007 filed by Subash Chander S/o Punnu Ram R/o Chak Gorian, Tehsil Bishnah, District Jammu, Criminal Appeal No.08/2007 filed by Raghbir Pal alias Bagga and Surinder Pal alias Bittu, sons of Late Sh. Pritam Dass Kapoor R/o Jawahar Nagar, Rajouri and Confirmation No.03/2007 sent by learned Sessions Judge, Rajouri, under Section 374 of the Code of Criminal Procedure, Svt. 1989. 2. Appellant-Subash Chander is convicted under Section 302/34 of the Ranbir Penal Code read with Section 27 Arms Act, whereas his co-accused Raghbir Pal and Surinder Pal are held guilty under Sections 302/34/109 RPC. Besides sentencing all the three appellants for life imprisonment, they have also been slapped with a fine of Rs.10,000/- each, in default thereof, to further undergo rigorous imprisonment for six moths. Appellant-Subash Chander has also suffered rigorous imprisonment for seven years and a fine of Rs.2,000/- under Section 27 Arms Act, in default thereof, to further undergo rigorous imprisonment for six months. However, both the sentences awarded to him have been ordered to run concurrently. 3. Appellant Raghbir Pal and his brother Surinder Pal are called by their nick names as `Bagga and `Bittu respectively and most of the time they are referred to by their aforesaid nick names only in the statement of witnesses. So hereinafter they shall be referred to as `Bagga and `Bittu and the third appellant as `Subash Chander. 4. Deceased in this case is Vineet Kumar aged 25 years, son of PW Om Parkash. He died on account of the gun shot allegedly fired by Subash Chander from his service gun (AK-47), as he at the time of occurrence was employed in J&K Police as Constable and attached with PW Ranbir Singh Manhas, the then Dy.SP DAR Police Lines Rajouri, as his bodyguard. The other bodyguard was PW constable Sudershan Singh. The occurrence is of 19.09.2001 at about 8 p.m. in the area of Jawahar Nagar, Rajouri, First Information Report (FIR) in this regard was lodged in Police Station Rajouri promptly i.e. within twenty (20) minutes, copy thereof reached the Illaqa Magistrate (Chief Judicial Magistrate) on the next day i.e. 20.09.2001 at 1 p.m. Vineet Kumar died on the date of occurrence itself in the hospital. 5. 5. The prosecution case as one finds from the contents of the F.I.R., which is recorded on the basis of reliable source is that on 19.09.2001, Constable No.598/R Subash Chander, was going to Jawahar Nagar in Government vehicle (Gypsy No.0936- JK11) and on the way near the petrol pump of Bagga and Bittu, he with the connivance of these two persons, fired two shots from his gun (AK-47), injuring Vineet Kumar, who while being shifted to the hospital died on the way. On these allegations, a formal F.I.R. bearing No.273/2001 came to be registered at Police Station Rajouri initially under Section 302/34 RPC. The investigation of the case was carried out by PW Mohd. Rafiq Chowdhary, who at that time was posted as SHO Police Station Rajouri. He immediately reached the spot, prepared the rough site plan of the place of occurrence, lifted blood stained sand and crushed stone (Bajri). Two fired cases of AK-47 were also seized and sealed on the spot. Tata Mobile (without registration Number) of the deceased-Vineet Kumar having gun shot holes on the body (Dalla) and drivers seat was also taken into possession. As he noticed some blood of the deceased on the drivers seat, blood stained seat cover was cut by him from that portion and seized and sealed for chemical examination. Photographs of the place of occurrence, dead body of the deceased and Tata Mobile were got clicked by the photographer of the Crime Branch. Statements of the witnesses to the main occurrence and with regard to the previous incident which had occurred just some time prior to the main occurrence were also recorded under Section 161 Cr.P.C. 6. On 19.09.2001 itself, Subash Chander was arrested and during his interrogation he suffered a disclosure statement, pursuant to which, on his pointing out the place, a rifle (AK-47 bearing No.K10008) alongwith loaded magazine with 28 cartridges (live) were recovered near Khandli bridge. These articles were taken into possession. Out of 28 live rounds, three live cartridges were separately sealed for FSL examination. A rough site plan of the place of recovery was also prepared. `Bagga and `Bittu were allegedly arrested on 21.09.2001. 7. After the autopsy of deceased-Vineet Kumar conducted on 20.09.2001, his blood stained wearing apparels were handed over to the Investigating Officer by the doctor, which were taken into possession. A rough site plan of the place of recovery was also prepared. `Bagga and `Bittu were allegedly arrested on 21.09.2001. 7. After the autopsy of deceased-Vineet Kumar conducted on 20.09.2001, his blood stained wearing apparels were handed over to the Investigating Officer by the doctor, which were taken into possession. Splinter of bullet taken out of his body was also sealed by the Medical Officer at the time of autopsy and handed over to the Investigating Officer. Sample of blood was also taken from the dead body for chemical analysis and seized and sealed on the spot. 8. Government gypsy No.JK11-0936 was also taken into possession. Certificate pertaining to the arms and ammunition issued to Subash Chander was also obtained from Incharge Kot Police Lines, Rajouri. The seized articles were produced before the Executive Magistrate Rajouri, who after opening the seal, checked them and thereafter re-sealed the same. After obtaining the authority letter, all relevant articles which were to be examined by FSL Jammu were sent vide letter No.21893-94/DPO dated 26.09.2001. 9. Since the case was initially registered under Section 302/34 RPC only, Section 3/27 Arms Act was added and a sanction of prosecution from District Magistrate, Rajouri, was also obtained against Subash Chander. 10. During investigation of the present case, it revealed that accused Bagga and Bittu were running the business of petrol pump at Jawahar Nagar, Rajouri in front of the shop of the complainant and quite often they used to have a tiff with the complainant party on parking of vehicle by Vineet Kumar in front of his shop, thereby creating problem for their customers to have access to their petrol pump. Both the sides had altercations on this count. The other motive projected is that Bittu was running the wholesale business of eggs, biscuits and toffees, and Vineet Kumar and his brother were also into the same business and on that aspect also, there was a business rivalry between them. It also revealed that on the fateful day at about 7.30 p.m., Bagga and Bittu had restrained the way of Suneet Kumar-PW (at many places he is referred to as complainant), the real brother of the deceased, injured him and kept him in wrongful confinement also for some time in their petrol pump, for which a formal F.I.R. No. 272/2001 was registered in Police Station Rajouri. Suneet Kumar was taken to the hospital by PW Amit Sharma, who runs STD shop near the place of occurrence. At that time PW Intikhab Bhukari was stated to be present at his STD shop and he was asked to stay back. He is an eye witness to the main occurrence also. Puneet Kumar-PW, the other brother of the deceased, who was present in his house, when came to know of this incident also reached the spot and he too was assaulted by Bittu with a rod on his head. He came back to his shop and is also an eye witness to the main occurrence. It is then the case of the prosecution that after sometime at about 8 p.m., PW Ranbir Singh Manhas, the then Dy.SP, happened to go towards Jawahar Nagar side in his official Gypsy No.JK11-0936 alongwith constable Subash Chander (accused herein) and Constable Sudershan Singh, his two bodyguards and when he reached near petrol pump and saw some crowd assembled at the petrol pump, Subash Chander was asked to go to the place to know about the reason for it, upon which he went towards Bagga and Bittu, who are stated to be his close friends as he was frequent visitor to their petrol pump. He was told that Vineet Kumar (since deceased) was the root cause of all the problems. It is then alleged that in the meantime, deceased-Vineet Kumar was seen coming in his Tata Mobile alongwith PW Deep Daman Singh (at few places referred to as Ripdaman Singh also) from the opposite direction and when he was passing in front of the petrol pump, Bagga and Bittu instigated Subash Chander to finish Vineet Kumar, consequently he fired two shots towards his vehicle from his service rifle (AK-47) hitting the back portion of it, one out of it hit Vineet Kumar and the second hit the rear tyre of Tata Mobile, consequently it got burst. Vineet Kumar lost the control over his vehicle and it hit another car No. JK02M-8462 parked on one side of the road. Since Vineet Kumar was bleeding profusely, he was taken to the hospital where he was declared dead. 11. On the basis of the challan submitted for trial, Subash Chander was charged under Section 302/34 RPC and Section 3/27 Arms Act, whereas his two co-accused, Bagga and Bittu, were charged under Section 302/34/109 RPC. Since Vineet Kumar was bleeding profusely, he was taken to the hospital where he was declared dead. 11. On the basis of the challan submitted for trial, Subash Chander was charged under Section 302/34 RPC and Section 3/27 Arms Act, whereas his two co-accused, Bagga and Bittu, were charged under Section 302/34/109 RPC. They now stand convicted and sentenced for the same, as indicated hereinabove. 12. We have heard Mr. D. S. Parihar, Advocate, appearing for accused-Subash Chander, Mr. Sunil Sethi, learned Sr. Advocate assisted by Mr. Abdul Hafiz and Mr. Ravi Abrol, Advocates, for accused- Bagga and Bittu, and Mr. A. H. Qazi, learned Addl. Advocate General, for respondent-State. Trial Court record also perused. 13. Mr. Sethi, learned Senior Advocate, takes the lead and submits that the prosecution is not able to prove its case against Bagga and Bittu accused at all. It hinges upon the evidence of five witnesses, who had allegedly seen Subash Chander firing from AK-47 on deceased Vineet Kumar. They are PWs Puneet Kumar-the real brother of the deceased, Ripdaman Singh-sitting alongwith the deceased in his vehicle, Intikhab Bhukari- a friend of PW Amit Sharma, Dy.SP Ranbir Singh Manhas and Constable- Sudarshan Singh. Ripdaman Singh, Dy.SP Ranbir Singh Manhas and constable- Sudarshan Singh are not attributing any part to Bagga and Bittu so as to bring their case within the ambit of Section 109 or 34 RPC. Even PW Puneet Kumar cannot be said to be a direct witness to the instigation because he had not heard the exact words of instigation coming out from the mouth of these two accused. He just talks of their presence at the spot. It is only PW-Intikhab Bhukari, who is said to have heard these two accused instigating Subash Chander to kill Vineet Kumar, when he was seen coming in his vehicle (Tata Mobile) towards the petrol pump and his evidence is also very weak. Mr. Sethi, in fact, wants to develop that the prosecution case qua Bagga and Bittu is very weak so as to fasten them with the charges framed against them. According to him, at the most, it can be said to be an individual act of Subash Chander only (although not admitted), who too had reacted to a particular situation on a spur of moment. 14. Mr. According to him, at the most, it can be said to be an individual act of Subash Chander only (although not admitted), who too had reacted to a particular situation on a spur of moment. 14. Mr. Sethi then submits that even otherwise presence of PWs Intikhab Bhukari or Puneet Kumar at the spot is also not free from doubt. Intikhab Bhukari is not the resident of same locality and is shown to be sitting in the shop of PW Amit Sharma, whereas at the time of occurrence the said STD booth was not working as it has come in evidence. Even otherwise, the conduct of this witness (Intikhab Bhukari) is most unnatural, if tested alongwith the evidence of PW Puneet Kumar, the other so called star witness to the occurrence. According to learned counsel, he (Intikhab Bhukari), otherwise, could not hear the exact words of so called instigation from the mouth of Bagga and Bittu as he was at a distance of 18-20 feet away from all the three accused, whereas Constable- Sudershan Singh and Dy.SP Ranbir Singh Manhas were at a distance of 10 feet only. Once they could not hear the words of instigation, how Intikhab Bhukari who was at a farther distance could possibly be in a position to hear all what is stated by him in the witness box. He has also made improvements on certain vital aspects from his previous statement recorded under Section 161 Cr.P.C. and his evidence, otherwise, runs contrary to the statement of PW Puneet Kumar. 15. According to Mr. Sethi, even in the site plan, which according to the prosecution was prepared on 20.09.2001 after recording the statement of Bhukari, the position where he was standing is not depicted. This all indicates that this witness was not present at the spot at all and has been brought in subsequently to strengthen the case of the prosecution for the purposes of implicating Bagga and Bittu as this witness happened to be the friend of PW Amit Sharma, who again was very close to the deceased being his associate in many nefarious activities. This all exercise by the prosecution rather weakens the evidence of PW Puneet Kumar, another eye witness to the occurrence, whose presence otherwise does not appear to be probable at the scene of occurrence, if tested on the touchstone of close scrutiny. This all exercise by the prosecution rather weakens the evidence of PW Puneet Kumar, another eye witness to the occurrence, whose presence otherwise does not appear to be probable at the scene of occurrence, if tested on the touchstone of close scrutiny. His statement was recorded after six days of the occurrence and this also indicates that he has been brought in subsequently. 16. Mr. Sethi lastly submits that previous enmity of accused with the complainant party has resulted into false implication of Bagga and Bittu in this case and as such they deserve acquittal. 17. Arguing for constable Subash Chander, Mr. Parihar submits that not only the prosecution story as projected is unbelievable on the face of it, the investigation conducted in this case is also unfair and the learned trial Court has not given any weightage to the material lapses made by the investigating officer (Mohd. Rafiq Choudhary). He submits that the recovery of gun (AK47) from Subash Chander on his disclosure statement is a made-up story and it was taken from him by Dy. SP Manhas on the same day in the police station itself which fact is established on record. He submits that the disclosure statement was allegedly recorded on 19.09.2001, the date of his formal arrest, whereas gun and certain live cartridges pursuant to the said disclosure statement are shown to have been recovered on 20.09.2001. This fact is belied from the statement of I.O. himself. When he stepped into witness box, he stated that when he had arrested accused-Subash Chander he was having gun in his hand. He then submits that it has also come on record from the statement of Head Constable- Gulzar that the gun was already with the police before the arrest of Subash Chander. Therefore, the investigating officer had not been honest in his investigation. 18. Dwelling upon his arguments, Mr. Parihar then submits that there is yet another flaw in the prosecution case. The Tata Mobile vehicle, which was got damaged, is not produced during the trial, even the photographs of the vehicle clicked at the place of occurrence are also not produced. Therefore, the investigating officer had not been honest in his investigation. 18. Dwelling upon his arguments, Mr. Parihar then submits that there is yet another flaw in the prosecution case. The Tata Mobile vehicle, which was got damaged, is not produced during the trial, even the photographs of the vehicle clicked at the place of occurrence are also not produced. Withholding of this vital evidence from the Court creates a lot of suspicion on the very case set up by the prosecution whereas it is the specific case of Subash Chander that he had not fired any shot from his gun and has been made scapegoat in this case by the police for certain extraneous reasons. 19. Mr. Parihar then submits that even otherwise the report submitted by Scientific Expert or Ballistic Expert is not formally proved and, therefore, cannot be read against the accused Subash Chander. He wants to say that the weapon actually used in the occurrence and the one sent to FSL is entirely different as the gun of Subash Chander remained with the Investigating Officer for about 8/10 days and, therefore, chances of tampering with it cannot be ruled out. He wants to highlight this fact from the forwarding letter sent to FSL by the police. Mr. Parihar mainly wants to develop his case submitting that may be constable Subash Chander was present at the spot, but his service gun (AK-47) is not used in the occurrence at all and he has been targeted in this case. On this aspect, he takes the advantage from the statement of PWs Suneet Kumar and Deep Daman Singh, who were recalled by the trial Court on an application moved under Section 540 of the Code of Criminal Procedure. 20. Mr. Parihar lastly submits that even if the prosecution case as projected is taken to be true on the face of it, which is otherwise not admitted, it does not bring the case of constable Subash Chander within the mischief of Section 302 RPC. He cannot be said to have any intention viz., to commit murder of Vineet Kumar, who was not present at the spot and reached at the scene after sometime, that too incidentally. It cannot be conceived that accused Subash Chander knew that Vineet Kumar would come in his vehicle at that particular moment. He cannot be said to have any intention viz., to commit murder of Vineet Kumar, who was not present at the spot and reached at the scene after sometime, that too incidentally. It cannot be conceived that accused Subash Chander knew that Vineet Kumar would come in his vehicle at that particular moment. Even otherwise, he is not hit from front side and the shots were allegedly released when his vehicle had covered reasonably a good distance after crossing the petrol pump. The shots hit the rear portion of Tata Mobile, out of which one incidentally hit the rear portion of driver seat causing injury to the deceased. Therefore, the present case at the most would fall within the mischief of Section 304-Part-II RPC and not 302 RPC, for which offence, the sentence already served by the accused being in custody for the last more than eight years would meet the ends of justice. 21. Per contra, Mr. Qazi, learned Addl. Advocate General, submits that it cannot be said to be a case of false implication at all on account of any previous enmity. Rather, the previous altercations were the root cause. He then submits that accused Bagga & Bittu are the true instigators, who abetted accused-Subash Chander to finish Vineet Kumar, the moment they say him coming in his vehicle (Tata Mobile). According to him, it is not only a case of abetment simplicitor, but these two accused have shared common intention also alongwith main accused to commit murder. Common intention can occur at the spur of the moment also and in the present case, they had rather assaulted the two brothers of the deceased few minutes prior to the main occurrence and Vineet Kumar who appeared at the scene, was also not left by them. In fact, it is one occurrence only in which all the three accused are the party. Therefore, sharing of their common intention at the spot is apparent on record. 22. Mr. Qazi then submits that all the witnesses to the occurrence are otherwise most natural witnesses. No doubt, Intikhab Bhukari happens to be a chance witness, but his evidence is not to be discarded on that count alone as he happened to be friend of PW Amit Kumar, who was running STD shop near the shop of the complainant. He has no personal grudge to depose against any of the three accused. 23. No doubt, Intikhab Bhukari happens to be a chance witness, but his evidence is not to be discarded on that count alone as he happened to be friend of PW Amit Kumar, who was running STD shop near the shop of the complainant. He has no personal grudge to depose against any of the three accused. 23. Mr. Qazi lastly submits that the prosecution is getting support from the Ballistic Expert also to the effect that service gun (AK-47) of constable Subash Chander was used in the incident and his presence at the spot is otherwise established. He was friendly to his other two co-accused, which fact is also proved on record. Therefore, none of the accused has any escape and as such, their conviction as already recorded by the trial Court deserves to be upheld. 24. Accused Bagga and Bittu are denying the occurrence in toto as is evident from the suggestions put by them to the witnesses and also in their statements recorded under Section 342 Cr.P.C. They state that they had heard of arrival of Dy.SP Ranbir Singh Manhas at the occurrence, but at the same time deny the presence of constable Subash Chander at the scene. The earlier incident in which PW Suneet Kumar was allegedly injured by them is also denied vehemently. We are conscious that their plea of not being there, if proved to be not correct, that fact by itself will not be sufficient to hold them guilty if the prosecution case qua them is otherwise weak. But in the case on hand, one important fact cannot go unnoticed that the presence of constable Subash Chander at the place of occurrence cannot be doubted at all. He is one who was attached with Dy.SP Manhas as his bodyguard, Constable Sudershan Singh was his other bodyguard and both of them were with him as is clear from the statement of Dy.SP Manhas and constable Sudershan Singh. No doubt, constable Subash Chander has taken the plea of his false implication stating that no shot was released from his service gun (AK-47) and that aspect being altogether different will certainly become the subject matter of our discussion in the succeeding paras, the fact remains that atleast his presence at the situs is established. No doubt, constable Subash Chander has taken the plea of his false implication stating that no shot was released from his service gun (AK-47) and that aspect being altogether different will certainly become the subject matter of our discussion in the succeeding paras, the fact remains that atleast his presence at the situs is established. This place is very nearer to the petrol pump of accused Bagga and Bittu only, if not in front of it as is clear from Rough Site Plan. These two aspects, in our view, are very important to appreciate the entire prosecution case in its right perspective. Let us now examine the main set of evidence keeping in view the aforesaid aspect. 25. Evidence of PW Manhas, the then Dy.SP, is that on the date of occurrence at about 8 p.m., he alongwith accused constables Subash Chander and Sudershan Singh (his two bodyguards) had reached Jawahar Nagar bazaar in his govt. vehicle (Gypsy) and saw some crowd near the petrol pump, upon which he directed his bodyguards to go to the spot and ascertain the factual position and he himself drove his jeep near the petrol pump where other vehicles were also parked. He then states that constable Subash Chander had boarded down from the jeep, went to the place where the crowd had assembled, came back and informed him that accused Bagga (Raghbir Pal) had altercation with some other person. He then states that in the meantime, a Tata Mobile came from the opposite direction, which had crossed his jeep and as there was very less space in that lane for passing over the vehicles, constable Subash Chander who was standing near the driver seat of the jeep, went jumping to one side. No doubt, this witness does not specifically state that he had seen constable Subash Chander firing the shots from gun, but he is categoric in his statement that when he was taking his jeep towards one side, he had heard sound of two gun shots. Although, this witness has not been declared hostile with regard to the firing of shots at the hands of constable Subash Chander as he was not toeing the lines of prosecution, yet at the same time his presence at the scene cannot be doubted at all. Although, this witness has not been declared hostile with regard to the firing of shots at the hands of constable Subash Chander as he was not toeing the lines of prosecution, yet at the same time his presence at the scene cannot be doubted at all. Rather, in his cross-examination, this witness makes his position more clear saying that in his statement under Section 161 Cr.P.C., he had stated that constable Subash Chander had told him that Bagga and his brother Bittu had a fight with someone. He is not confronted on this aspect. Therefore, there appears to be no reason to disbelieve this witness with regard to presence of Bagga and Bittu at the spot. Rendering help to constable Subash Chander by denying the fact of firing shots by him is altogether a different aspect. 26. We have now the statement of Puneet Kumar before us, the real brother of the deceased, who states that at about 7.30 p.m. when he was in his house which is in Jawahar Nagar only, he received an information that accused Bagga and Bittu were fighting with his brother Suneet Kumar and when he reached the place of occurrence, his brother was already taken to the hospital. He then states that in order to know all about the occurrence, he went to the petrol pump of Bagga where Bittu accused gave a lathi blow on his head. He then came back to his shop. About the main occurrence, he states that in the meanwhile Dy.SP Manhas reached the spot in his jeep and parked it in front of the petrol pump. Accused-Subash got down from the jeep and went to the petrol pump of Bittu and Bagga and then he saw all the three accused talking with each other from his shop only, but could not hear their conversation. He then talks of arrival of Tata Mobile being driven by his brother Vineet at the scene of occurrence and saw accused Bagga and Bittu giving signal to Subash who took a particular position by going to the rear side of the jeep and then fired two shots from his gun. He then talks of becoming unconscious after seeing his brother bleeding profusely and regained consciousness in hospital Rajouri after some time. He is a witness of motive also. 27. He then talks of becoming unconscious after seeing his brother bleeding profusely and regained consciousness in hospital Rajouri after some time. He is a witness of motive also. 27. Statement of PW Intikhab Bhukari, who happens to be the friend of PW Amit Sharma, also needs to be examined in this regard. Amit Sharma was running a STD shop in Jawahar Nagar near the shop of complainant party and opposite the petrol pump. There is no dispute on this factual aspect. PW Bhukari says that on the date of occurrence, he alongwith Amit were sitting in the room when they heard noise from outside, upon which they came out and saw accused Bagga and Bittu beating the complainant (reference is to PW Suneet) and dragging him towards their petrol pump. It is then stated that after sometime one gun had fallen from the window and then he saw accused Bittu coming down having a danda in his hand. It has further come in his statement that PW Suneet Kumar was injured by Bagga and Bittu both, and Amit Kumar took him to the hospital whereas he was asked to stay back at the shop (STD Booth). His statement further is that after sometime another brother of the complainant (reference is to PW Puneet Kumar) came at the spot and he too was assaulted. He then gives an eye version account of the main occurrence stating arrival of Dy. SP Manhas alongwith constables Subash Chander and Sudershan Singh, his two bodyguards. From this stage, he connects Bagga and Bittu in the main occurrence saying that when constable Subash Chander went to the petrol pump of Bagga and Bittu after getting down from the jeep, by that time he had also reached near them and heard Subash asking Bittu and Bagga about the occurrence, upon which they told that Vineet Mahajan was the root cause of this all altercation and that he was to be finished. He then states that when Vineet was seen coming in his Tata Mobile from Khandli side and his vehicle was at some distance, Bagga and Bittu instigated Subash that Vineet was coming and he has to be finished and that they would save him (Subash). He then states that when Vineet was seen coming in his Tata Mobile from Khandli side and his vehicle was at some distance, Bagga and Bittu instigated Subash that Vineet was coming and he has to be finished and that they would save him (Subash). In vernacular it is stated: "Bagga va Bittu ne mulzim Subash ko kaha ke Vineet aa raha hai, aaj uska kaam karna hai, hum aapko jani mulzim Subash ko bacha legein." This witness then talks of release of two shots from the service rifle of Subash, one hitting Vineet and the other hitting the tyre of Tata Mobile. 28. PW Amit Kumar is another witness who talks of the first altercation between the complainant-Suneet and Bagga and Bittu. He is one, who had taken Suneet to the hospital leaving Bhukari at his STD Booth. He also talks of the previous altercation on account of parking of vehicle by Veneet in the street and about the other business rivalry as well. 29. Similarly, PW Neeraj Sharma is also a witness to the previous altercation between Suneet and Bagga etc. He is also a witness to disclosure statement suffered by constable Subash Chander and the recovery of gun and cartridges pursuant thereto. 30. Prosecution projects PW Deep Daman Singh also as a witness to the earlier occurrence when Suneet Kumar was injured and taken to hospital. He is one who informed Vineet about this all at his shop which was at some distance and then both of them left for hospital in the vehicle of Vineet. He then states about the main occurrence naming all the three accused to be present there. He, however, does not specifically attribute the firing of shots at the hands of constable Subash but saw him running away from the scene of occurrence towards a particular direction. He does not support the prosecution case when recalled under Section 540 Cr.P.C. 31. We have now the evidence of PW Suneet Kumar who was injured by Bagga and Bittu in the first occurrence and then shifted to the hospital. He then states after that some time his brother Vineet was also brought to the same hospital in a serious condition. He also talks of the motive for the main occurrence giving the flashback of earlier events. He was also recalled under Section 540 Cr.P.C. and made an attempt to save accused Subash Chander. He then states after that some time his brother Vineet was also brought to the same hospital in a serious condition. He also talks of the motive for the main occurrence giving the flashback of earlier events. He was also recalled under Section 540 Cr.P.C. and made an attempt to save accused Subash Chander. However, his stand with regard to previous enmity with Bagga etc., remained the same. 32. Om Parkash, father of the deceased is another witness who not only talks of the previous enmity between them and Bagga and Bittu, but about the friendship of constable Subash Chander with Bagga and Bittu also, and he (Subash Chander) was quite often seen sitting at the petrol pump of Bagga. 33. This is all about the main set of evidence produced by the prosecution with regard to motive, an altercation ensued sometime prior to the main occurrence and then the main incident. Reproduction of medical evidence, in our view, would not be that relevant as factum of death by bullet injury is not in dispute. However, Ballistic Expert evidence will be discussed by us at the appropriate stage with regard to alleged involvement of accused Subash Chander. 34. May be with regard to motive, Bagga and Bittu have denied the factum of previous enmity going on between both the sides on account of parking of the vehicle by the deceased in front of their shop, thereby creating problem for their customers to have smooth access to the petrol pump and that being a root cause of the main occurrence, but the evidence brought on record by the complainant, in our view, cannot be said to be improbable and therefore, we do not find any reason to disbelieve it. Shop of complainant is in front of the petrol pump of accused Bagga etc., and the main lane is not wide enough as is clear from RSP. Therefore, in all probabilities, this could be the cause of their routine rift. Even otherwise, the motive even if weak pales into insignificance when the eye version account is there. Therefore, we have to re-scan the main evidence on record vis-a-vis the presence of these two accused. 35. Therefore, in all probabilities, this could be the cause of their routine rift. Even otherwise, the motive even if weak pales into insignificance when the eye version account is there. Therefore, we have to re-scan the main evidence on record vis-a-vis the presence of these two accused. 35. From the aforesaid evidence on record, in our considered view, presence of Bagga and Bittu cannot be said to be at all doubtful at the time of occurrence for a simple reason that in the earlier altercation with the complainant, these two accused have played an active role. There is a reference to the registration of a criminal case in this regard by the learned trial Court itself. It is F.I.R. No. 272/2001. The present case relates to F.I.R. 273/2001. PW Puneet, in any case, had received hardly any injury when he went to know about the prior incident and, therefore, even if his injury statement is not prepared that would not make his presence doubtful at the scene. The totality of circumstances and the manner in which the crowd had assembled at the petrol pump, which was noticed by Dy.SP Manhas and made him to enquire about the incident, goes to show that these two accused were the persons, who actually had an altercation with the complainant side sometime before the main occurrence. Even Dy.SP Manhas has categorically stated in his substantive statement that when he had seen the crowd near the petrol pump and sent his bodyguard constable Subash-accused to verify the fact, he reported to him that accused Bagga and some other persons had an altercation. There is no reason to disbelieve the statement of this material witness on this aspect atleast, may be he is saving Subash Chander for the main charge. 36. An attempt made by Mr. Sethi to make us doubt the presence of PW Amit Kumar, who is shown to be a witness to the earlier incident, in our view, is a futile exercise. Even if in those days Amit Kumar was not running any STD business, that by itself would not mean that he could not be present in his shop. His shop is, otherwise, situated just in front of the petrol pump and near the shop of the complainant, which fact is not disputed by even the accused side. Even if in those days Amit Kumar was not running any STD business, that by itself would not mean that he could not be present in his shop. His shop is, otherwise, situated just in front of the petrol pump and near the shop of the complainant, which fact is not disputed by even the accused side. A fact worth noticing is that the prosecution has not projected him as a witness to the main occurrence. At the cost of repetition, his evidence is to the effect that on the date of occurrence, he was sitting in his shop alongwith Intikhab Bhukari and after hearing noise from outside, he came out of the shop and saw accused Bagga and Bittu fighting with the complainant. This, in our view, is the true account of the earlier assault placed before the Court by this witness, who was very much present at his shop. He had admittedly no animosity against the accused at all. Had there been any grudge in his bossom against these two accused or the prosecution wanted to strengthen its case, he could very comfortably be projected as a witness to the main occurrence whereas he is shown to have taken Suneet to the hospital only after he was assaulted by Bagga and Bittu. 37. We are also not inclined to disbelieve the presence of PW Intikhab Bhukari at the shop of PW Amit Sharma simply on the ground of he being a chance witness as stated by Mr. Sethi. It is well settled that evidence of a chance witness is not to be discarded out rightly. However, it requires cautious approach of the Court in appreciating the statement of a chance witness. We, after applying the said test, are of the considered view that PW Intikhab Bhukari was very much present at the shop of PW Amit Sharma. Whether his statement is enough to prove the charge of Sections 109/34 RPC against Bagga and Bittu accused is a matter to be dealt by us separately. 38. As a sequel to the aforesaid discussion, on the basis of the evidence on record, we hold that Bagga and Bittu accused were present at the spot in the earlier assault occurred some time prior to the main occurrence and were also present even at the time of main occurrence. 39. 38. As a sequel to the aforesaid discussion, on the basis of the evidence on record, we hold that Bagga and Bittu accused were present at the spot in the earlier assault occurred some time prior to the main occurrence and were also present even at the time of main occurrence. 39. Despite the fact that the presence of accused Bagga and Bittu is established at the scene of crime in the light of the aforesaid discussion, the vital issue still survives for our consideration is, whether these two accused can be fastened with the charge of Section 302 read with Sections 34/109 RPC. We may state here once again that the witnesses to the main occurrence are Dy.SP Manhas, his other bodyguard constable Sudershan Singh, Puneet- real brother of the deceased, Ripdaman Singh and Intikhab Bhukari. Out of all these witnesses, the prosecution can rely only on the statement of Puneet Kumar and Intikhab Bhukari for seeking conviction of these two accused for the main offence with the aid of Sections 34/109 RPC. The other witnesses have not said a word against these two accused for proving the said charge. Therefore, the relevant part of statement of PWs Puneet Kumar and Intikhab Bhukari needs to be appreciated. We take the relevant part of their evidence individually for this purpose once again. 40. PW Bhukari is one who had seen Subash getting down from the gypsy driven by Dy.SP Manhas and going towards accused Bagga and Bittu. He states that by that time he had also reached near all the three accused and heard accused Subash asking Bittu and Bagga about the earlier incident upon which they stated that they had an altercation with Vineet Mahajan (since deceased) and he was the root cause. He then states that he had also heard both Bagga and Bittu saying that Vineet Mahajan was to be finished. This witness further states that thereafter he saw Vineet Mahajan coming in his Tata Mobile from another direction and when his vehicle was at some distance, accused Bagga and Bittu instigated Subash saying that Vineet was coming and was to be finished and that they (Bagga and Bittu) would save him (Subash). He then talks of releasing of two shots by Subash from the service rifle (AK-47). 41. He then talks of releasing of two shots by Subash from the service rifle (AK-47). 41. Evidence of Puneet Kumar, the real brother of the deceased, who remained at the spot even after Suneet Kumar was removed to the hospital by PW Amit Kumar is different. He states that accused Subash had boarded down from the jeep driven by Dy. SP Manhas and went towards the petrol pump of accused- Bagga and Bittu where both were present. He was at his shop at that time, saw all the three accused talking with each other from his shop, but he could not hear the exact words. In vernacular it is stated that: "Jo moozar ne apni dukan per se har teen mulzeem ko kuch bat cheet karte dekha jo moozar soon no saka tha." He then states that thereafter he saw his brother, Vineet Kumar coming in Tata Mobile and when he was crossing the petrol pump, accused-Bagga and Bittu gave some signal to accused-Subash and thereafter Subash took a position by going towards the backside of the jeep and fired two shots from his service rifle. These two different situations are not coinciding with each other when tested in the right perspective. 42. Another aspect which creates doubt in our mind is that Puneet Kumar had come to his residence on the night of occurrence itself. His statement under Section 161 Cr.P.C. was recorded by the investigating officer on 25.09.2001 i.e. after the delay of six days. Under normal circumstances, we would have not given much importance to the delay part but in the present case, in our view, possibility of improving the case to show the involvement of Bagga and Bittu cannot be ruled out. We have, otherwise, not doubted his presence at his shop on the date of occurrence. 43. Similarly, evidence of Bhukari is also not convincing one. He is a witness of overhearing of what is stated by all the three accused immediately when Subash was sent by Dy. SP Manhas to enquire about the crowd assembled near the petrol pump. He reproduces the entire version word for word. Not only that even at the time when Subash had allegedly released shot at Vineet from his service rifle, what was said by Bagga and Bittu to him has again been reproduced by him word for word. SP Manhas to enquire about the crowd assembled near the petrol pump. He reproduces the entire version word for word. Not only that even at the time when Subash had allegedly released shot at Vineet from his service rifle, what was said by Bagga and Bittu to him has again been reproduced by him word for word. This all exercise carried out by the prosecution through this witness, that too in such a meticulous manner creates a doubt in our mind that an attempt is being made by the prosecution to knit a net for Bagga and Bittu accused so as to book them with the aid of Section 34 or 109 R.P.C. 44. We are doubting the evidence of Bhukari, yet from another angle. According to the prosecution case, his statement was recorded on 19.09.2001, on the date of occurrence itself. Had it been so, the investigating officer should have shown the point of his placement in the site plan prepared by him. After all he is the only independent witness to the entire occurrence right from the very start. This material fact is conspicuously missing in the site plan. The matter does not rest here. From his evidence, it is clear that he was standing at a distance of 3-4 feet from the back portion of the jeep. Jeep was at the distance of around 10 feet from the accused. That way, PW Bhukari was at a distance of about 14-15 feet away from all the three accused. We are surprised, how he could hear all the words so clearly uttered by Bagga and Bittu to accused Subash saying that he should finish Vineet Mahajan and they would save him. When this vital aspect is appreciated alongwith the improvement made by this witness from his previous statement recorded under Section 161 Cr.P.C. coupled with the fact that he does not figure in the rough site plan also, it creates a lot of doubt in our mind to believe his presence at the relevant point from where the main occurrence originated, may be he is held to be present at STD shop. 45. The parameters of `abetment have been stated in Section 107 of R.P.C., which defines `abetment of a thing. A person can be said to have abetted in doing a thing who instigates any person to do that thing. 45. The parameters of `abetment have been stated in Section 107 of R.P.C., which defines `abetment of a thing. A person can be said to have abetted in doing a thing who instigates any person to do that thing. The word `instigate is not defined in R.P.C. Therefore, `instigation in simple term means incitement, persuasion, provoke or urge. The present case does not connect Bagga and Bittu with it. Therefore, they cannot be held guilty for the main offence with the aid of Section 109 RPC. At the same time, it cannot be a case of sharing common intention by these two accused with constable Subash Chander to commit murder of Vineet as the facts put forth are absolutely contrary to it. Even sharing of common intention at the spur of moment cannot be said to be there in the light of peculiar facts of the present case. 46. As a sequel to the aforesaid discussion, we do not find any difficulty in holding that the prosecution has not been able to prove its case beyond all shadows of reasonable doubt against Bagga and Bittu for the charge of Section 302 read with Sections 34/109 RPC. Therefore, while extending the benefit of doubt, we acquit both of them. 47. Let us now examine the case of the prosecution against accused-Subash Chander, who has been charged and convicted for the offence punishable under Sections 302/34 RPC read with Section 27 Arms Act. In the aforementioned backdrop, charge of Section 34 R.P.C. does not survive. So his case needs to be appreciated for the substantive charge of Section 302 R.P.C. only and Section 27 of Arms Act as his service weapon has allegedly been used for an unlawful purpose. 48. There remains no doubt that accused Subash Chander was accompanying Dy.SP Manhas and constable Sudershan Singh in govt. gypsy and all the three had reached the place of occurrence. May be constable Sudershan Singh has been declared hostile with regard to the main incident and Dy.SP Manhas has also made an attempt to help constable Subash Chander by not attributing the role of releasing shots from his service gun, but both of them are very categoric in saying that constable Subash Chander was with them only. May be constable Sudershan Singh has been declared hostile with regard to the main incident and Dy.SP Manhas has also made an attempt to help constable Subash Chander by not attributing the role of releasing shots from his service gun, but both of them are very categoric in saying that constable Subash Chander was with them only. Another fact, which is also very evident from the statement of PW Dy.SP Manhas that constable Subash Chander went near the petrol pump for enquiring into the earlier incident and informed him that Bagga etc., had an altercation with someone. From all this factual backdrop, presence of constable Subash Chander at the situs cannot be doubted at all. 49. Another fact, which is also established on record from the statement of Head Constable PW Ram Parkash is that constable Subash was handed over one rifle (AK-47) bearing No.K-10008 and four magazines containing 120 live cartridges alongwith other ammunition on 27.07.2001 and that on 19.09.2001 he was in possession of one rifle (AK-47) bearing No.K-10008 alongwith one magazine containing 30 live cartridges. Rest of the ammunition was lying in the police line. He had proved a written document in this regard. It is nowhere stated by Dy.SP Manhas or constable Sudershan Singh that constable Subash Chander was without any arms on the date of occurrence. It is otherwise not possible as he was his bodyguard and, therefore, supposed to carry the service gun. 50. No doubt, Mr. Parihar in his wisdom, has made an attempt to dent the prosecution case in its entirety by developing it to be a case of false implication of constable Subash Chander in this case as a scapegoat by pointing out certain flaws, but we are not in agreement with him. He wants to strike his view point home by launching attack on investigation only dubbing it to be unfair and dishonest, for which he mainly creates some doubt about the exact date of the recovery of the gun and cartridges from Subash stating that the same were already in the possession of the investigation officer on 19.09.2001 itself and shown to have been recovered subsequently pursuant to the disclosure statement. We, in this regard, have gone through the statement of three witnesses viz., the Investigating Officer, PWs Neeraj Sharma and Ashok Kumar. We, in this regard, have gone through the statement of three witnesses viz., the Investigating Officer, PWs Neeraj Sharma and Ashok Kumar. No doubt, when the Investigating Officer stepped into the witness box, he stated that when he had arrested accused Subash Chander, he was having a rifle with him, but the learned trial Court had sought clarity on this aspect from him and he made it clear that the same was recovered from the bushes of Khandli bridge pursuant to his disclosure statement. He further made it clear that inadvertently it was stated by him that the gun was already with the accused. No doubt, the learned trial Court should have afforded an opportunity to the accused to further cross-examine this witness after this stage, but this procedural irregularity would not damage the basic substratum of the prosecution case. Even accused Subash Chander is not clearly responding on this aspect. He is taking different stands at different stages and this aspect is also to be kept in mind. The stand taken by him in his statement under Section 342 Cr.P.C. is contrary to what is said by his brother Parveen as a defence witness. We would have not given any weightage to this aspect, as conviction cannot be based on the false plea of the accused, if the prosecution case is otherwise not proved to the hilt, but for the fact that Mr. Parihar has taken the plea that no shot was released from the service gun of constable Subash Chander and that the investigating officer had tampered with it as the same remained with the police for a week or so before it was sent to Forensic Science Laboratory (FSL). His attempt, in fact, is to show that some other gun is used in the occurrence, which, in our view, is not correct. 51. Much has been said by Mr. Parihar with regard to non-production of vehicle (Tata Mobile) in the Court or even the photographs. His endeavour is to demolish even the Ballistic Expert evidence. We are again not in agreement with him on this aspect. If one reads the entire statement of PW Mr. S. H. Bukhari, (Scientific Officer Ballistics FSL J&K Jammu), perhaps there remains no ambiguity on any count. He states that on 13.11.2001 he alongwith one Manzoor Hussain, Lab. Asstt., examined the Tata Mobile vehicle having suspected holes on its body. We are again not in agreement with him on this aspect. If one reads the entire statement of PW Mr. S. H. Bukhari, (Scientific Officer Ballistics FSL J&K Jammu), perhaps there remains no ambiguity on any count. He states that on 13.11.2001 he alongwith one Manzoor Hussain, Lab. Asstt., examined the Tata Mobile vehicle having suspected holes on its body. This vehicle was parked in Police Station Rajouri. After examining the vehicle, he noticed thus:- "1. The holes on the dala body and on the back of the driver seat were found to had been caused due to the passage of bullets fired at. 2. It could be possible to say that the hole on the dala body of the vehicle could have been caused due to AK-Rifle bullet. 3. The holes ranging from 1 to 3 were in the same alignment. 4. The Dia of the holes on the vehicle possibly reseamble with the dia of the holes on the shirt. 5. The hole on the tyre had been caused due to the other bullet fired at. 6. No. of shots fired at the vehicle were found to be two." 52. This witness has further stated that he had examined the fire arm and other material, which was sent to him by Superintendent of Police vide letter No. 21893-94/DPO dated 26.09.2001. Reference to other material was with regard to the clothes of the deceased and other packets containing deformed bullet etc. With regard to the rifle (AK-47), his opinion was that it was in working order. It was exhibited by him as F-484/2001. He after minutely examining it with the spent two cartridges marked as F-485/2001 and F-486/2001, opined that those were fired through the rifle marked as F-484/2001. It is worth mentioning here that the packet containing the clothes of the deceased were exhibited as F-487/2001 and the opinion formed by the expert was that the hole on the back right side of the shirt collectively marked F-487/2001 had been caused due to the passage of projectile fired at. There was a deformed bullet, which was exhibited as F-488/2001 and this, according to the Expert, was also fired through the fire arm exhibited as F-484/2001. There was a deformed bullet, which was exhibited as F-488/2001 and this, according to the Expert, was also fired through the fire arm exhibited as F-484/2001. After minutely examining the Tata Mobile, which was involved in the incident, this witness not only depicted the exact position of the holes at different positions including the one which was noticed by him on the back seat of the driver, which was made of wood and other material, he even observed the range of the fire shot at (point blank range), from which Mr. Parihar made an attempt to raise storm in the cup of tea, but in our considered view, it would have no effect. Exact distance from which the shot is fired, perhaps, would not be the decisive factor in this case. What is to be appreciated is that as to whether the shots have really been released from the service gun (AK-47) of accused-Subash Chander or not. The `dala of the Tata Mobile is having a hole in it. At the same time, tyre of the vehicle is also burst and there is a hole on the back side of the driver seat made of wood. Deceased Vineet had received injury on the back side of his neck as he was on the steering of Tata Mobile as is the case of the prosecution. We do not feel the necessity of referring to the post mortem report in this regard. Even otherwise, no doubt has been created with regard to the injury. 53. Evidence of Ballistic expert is not to be brushed aside casually. After all he is an expert and gives the Court a valuable opinion based on the material before him. In the present case, the expert evidence coupled with an eye version account discussed hereinabove, lead us to draw an irresistible conclusion that the two shots were actually released from the service gun (AK-47) allotted to accused-Subash Chander, hitting the vehicle driven by Vineet, out of which one after piercing the driver seat hit the driver from back and proved fatal. 54. We may observe here once again that the argument advanced by Mr. Parihar with regard to the delay of sending the fire arm and the other material to the FSL would be of no help to him in the light of our aforesaid detailed discussion. 54. We may observe here once again that the argument advanced by Mr. Parihar with regard to the delay of sending the fire arm and the other material to the FSL would be of no help to him in the light of our aforesaid detailed discussion. Similarly, an attempt made by the accused by recalling PW Suneet- the brother of the deceased and Deep Daman Singh, in their support on an application moved by them under Section 540 Cr.P.C. would again be of no advantage to constable Subash Chander. Even otherwise, PW Suneet Kumar was not present at the time of main occurrence being in the hospital. Therefore, accused Subash Chander whose involvement is otherwise proved to the hilt on account of the cogent evidence on record cannot derive any benefit from this weakness of the prosecution. 55. We are now left with another important aspect of the matter as to whether under the present set of circumstances, conviction of accused Subash Chander can be maintained under Section 302 R.P.C. or the main offence deserves to be diluted. Since accused Bagga and Bittu already stand acquitted by us, the case of Subash Chander is to be taken as his individual act. The very case set up by the prosecution is that Vineet Kumar (since deceased) was not present at the scene upto the stage of arrival of Dy.SP Manhas alongwith constables Subash Chander and Sudershan Singh. It is only when constable Subash Chander was apprising Dy.SP Manhas about the assembling of the crowd at the petrol pump, he was seen coming in his vehicle (Tata Mobile) from Khandli side. So it is quite natural that Vineet being real brother had to react to a situation and this is what was done by him in this case. May be Dy.SP has made an attempt to save constable Subash Chander from the main offence, but his statement to the effect that he had seen Vineet Kumar driving his vehicle rashly towards the point where their jeep was parked appears to be probable. The vehicle of Vineet is not hit from front is also to be kept in mind. Taking all these facts collectively, it is quite possible that when Vineet Kumar was proceeding towards constable Subash Chander while driving his vehicle, he might have made an attempt to hit him and in retaliation Subash Chander used his gun. The vehicle of Vineet is not hit from front is also to be kept in mind. Taking all these facts collectively, it is quite possible that when Vineet Kumar was proceeding towards constable Subash Chander while driving his vehicle, he might have made an attempt to hit him and in retaliation Subash Chander used his gun. By that time the vehicle of Vineet had already crossed some distance. This is the reason that the shots have hit the back portion of the vehicle, out of which, one shot hit the driver seat also. 56. There is a subtle line of distinction between the `intention and the `knowledge. `Knowledge may be presumed from the `intent, but `intent cannot be inferred from `knowledge. There cannot be any hard and fast rule to say that if any vital part is affected, the case must fall within the definition of Section 302 RPC only. This depends upon the facts and circumstances of each and every case. RPC (IPC in the Central Code) recognizes three degrees of `culpable homicide. The first degree and the gravest form of `culpable homicide is defined in Section 300 as `murder. The second degree of `culpable homicide is punishable under first part of Section 304 RPC and the third degree is punishable under the second part of Section 304 RPC. 57. In Rajpal and others v. State of Haryana 2003 (3) RCC 209, their Lordships of Apex Court while drawing the distinction between Sections 299 and 300 I.P.C., have observed that academic distinction between `murder and `culpable homicide not amounting to murder has always vexed the Courts. The confusion is caused, if Courts loose sight of the true scope and meaning of the terms used by the legislature in these Sections and allow themselves to be drawn into minute abstractions. It is further observed by their Lordships that the safest way of approach to the interpretation and application of these provisions is in focusing the keywords used in various clauses of Sections 299 and 300. While making the comparative table in the aforesaid judgment, their Lordships have, however, observed that these are the broad guidelines and not cast-iron imperatives as their observance will facilitate the task of the Court. While making the comparative table in the aforesaid judgment, their Lordships have, however, observed that these are the broad guidelines and not cast-iron imperatives as their observance will facilitate the task of the Court. It is then observed that sometimes the facts are so intertwined and the second and the third stages so telescoped into each, that it is not convenient to give a separate and clear cut treatment to the matters involved in the second and third stages and, therefore, each case has to be seen on its own facts. 58. Following the ratio of the aforesaid judgment and after appreciating the entirety of facts of the case on hand in its right perspective, in our considered view, it would fall within the mischief of Section 304 Part-I RPC only against accused Subash Chander and not one punishable under Section 302 RPC, for which he already stands convicted by the learned trial Court. We, therefore, set aside his conviction under section 302 RPC and instead convict him under Section 304 Part-I RPC. His conviction under Section 27 of the Arms Act, however, shall remain undisturbed. Since the main offence has been diluted to Section 304 Part-I RPC, the ends of justice would adequately be met, if he is sentenced to rigorous imprisonment of ten years. However, the fine of Rs.10,000/- imposed upon him by the learned trial Court is enhanced to Rs.1 lac (Rs.1,00,000/-), in default thereof, he shall further undergo rigorous imprisonment for one year. In the event of amount of fine being realized, a sum of Rs.75,000/- shall be disbursed to the complainant party. The sentence already imposed under Section 27 of the Arms Act shall remain intact and both the sentences awarded for different offences would run concurrently. 59. The net result is that Cr. Appeal No. 08/2007 filed by Raghbir Pal alias Bagga and Surinder Pal alias Bittu stands allowed. They are acquitted of all the charges. As they are stated to be in custody, they shall now be released forthwith, if not required in any other case. 60. Cr. Appeal No.06/2007 filed by constable Subash Chander stands partly allowed in the aforesaid terms. 61. Confirmation No.03/2007 also stands disposed of accordingly. 62. Registrar Judicial of this Court to take all effective steps in implementing the judgment without any delay.