Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 2477 (ALL)

Babloo @ Ajay Kumar Tewari v. The State of U. P.

2010-08-13

RAJ MANI CHAUHAN, RAJIV SHARMA

body2010
JUDGMENT: R.M. Chauhan, J. The Challenge under the present appeal is the judgment and order dated 27.1.2006 passed by the learned Additional Sessions Judge, Court No. 2, Hardoi in Session Trial No. 902 of 2004 (Crime No. 196 of 2004), under Section 302 IPC & Session Trial No. 903 of 2004 (Crime No. 197 of 2004), under Section 25 Arms Act; State Vs. Babloo @ Ajay Kumar Tewari, Police Station Baghauli, District Hardoi whereby the learned Additional Sessions Judge has held the accused guilty under Section 302 IPC. Consequently he has convicted and sentenced the accused to undergo imprisonment for life and to pay fine of Rs. 5,000/-. The sentence further directs that in case the accused fails to pay the amount of fine he will further undergo rigorous imprisonment for six months. The prosecution case as disclosed at the trial my be summarized as under: The fateful incident is alleged to have taken place on 13.6.2004 at about 3:00 P.M. in village Jarera within the Police Station Baghauli, Disrict Hardoi. As per prosecution case, Ram Adhar (deceased) along with his brother Virendra Kumar (PW-1 informant) left his village Danmandi on 13.6.2004 at about 2:30 P.M. and proceeded to village Narainpur to purchase an ox. The village of incident i.e. Jarera is situated in between the two villages i.e. Danmandi and Narainpur. The deceased and the informant at about 3:00 P.M. were passing through Village Jarera and when they reached in front of the house of Babloo @ Ajay Kumar Tewari he met them on the way who had taken liquor and was under intoxication. He demanded some money from the deceased (Ram Adhar) for purchasing liquor but Ram Adhar avoided to satisfy his demand and continued his journey to Narainpur but Babloo @ Ajay Kumar Tewari was also following them. He was insisting Ram Adhar to satisfy his demand while Ram Adhar was avoiding. When he reached in front of the house of Suresh Bhurji. Babloo @ Ajay Kumar Tewari stick to his demand but Ram Adhar refused to satisfy his demand, Babloo @ Ajay Kumar Tewari, who was having country-made pistol in his hand, opened fire on Ram Adhar which hit on his abdomen resulting in his instantaneous death. The occurrence is said to have been seen by Sandeep and Bishnu Narain who belonged to village Danmandi and had reached there at the time of occurrence. 2. The occurrence is said to have been seen by Sandeep and Bishnu Narain who belonged to village Danmandi and had reached there at the time of occurrence. 2. The informant, after the incident had taken place wrote a written report (Ext. Ka-1) of the incident and went to the Police Station Baghauli and handed over the same to the then constable clerk Sita Ram (PW-6) in presence of Station Officer, Sri Mohd. Javed Sidiqui (PW-3), who on the basis of written report, prepared the First Information Report (Ext. Ka-15) and registered a case under Section 302 IPC at Crime No. 196 of 2004 in the general diary (copy Ext. Ka-16) against the accused for investigation . The Station Officer, Sri Sidiqui took the investigation of the case himself. He after registration of the case proceeded to the place of occurrence along with relevant papers and his colleague S.I. Sri Naresh Singh & constables and reached there on the same day at about 5:30 P.M. The Investigating Officer on the pointing out of the informant inspected the place of occurrence, prepared the site plan (Ext. Ka-2) and in the presence of the witnesses took the blood stained soil as well as plain soil from the place of occurrence in separate containers and sealed them. He prepared the requisite memo (Ext. Ka-3) on the spot and thereafter inspected the dead body of the deceased (Ram Adhar). He appointed panchas and observing formalities as required under the law got prepared inquest report (Ext. Ka-4) by his colleague S.I. Sri Naresh Singh. He also got prepared requisite papers for sending the dead body of the deceased for postmortem examination like police form 13, letter to RI, letter to C.M.O., Photolash of dead body, sample of sand, etc. (Ext. Ka 2 to 9) on the spot and sealed the dead body. The Investigating Officer thereafter handed over the sealed dead body along with papers to constable Indra Bhushan Tewari and village Chowkidar Chhedi Lal for taking to the mortuary for postmortem examination. Sri Siddqui recorded the statements of informant Virendra Kumar, and the witnesses Sandeep Kumar and Bishan Dayal. 3. Sri Sidiqui, on the next day i.e. on 14.6.2004 arrested the accused (Babloo @ Ajay Kumar Tewari). He interrogated him and recorded his statement who confessed the commission of murder of the deceased. Sri Siddqui recorded the statements of informant Virendra Kumar, and the witnesses Sandeep Kumar and Bishan Dayal. 3. Sri Sidiqui, on the next day i.e. on 14.6.2004 arrested the accused (Babloo @ Ajay Kumar Tewari). He interrogated him and recorded his statement who confessed the commission of murder of the deceased. He disclosed to him that he had hidden the country-made pistol used in the commission of the murder of the deceased in his house. He could get the same recovered. Consequently, Sri Sidiqui on the same day took the accused to his house along with his subordinate constables Bhuneshwar Tiwary and Baijnath Singh. The accused in the presence of the witnesses Ram Ashrey and Awadhesh Kumar entered into his house and took out a country-made pistol of 12 bore from a room of his house which was containing one empty cartridge in its barrel. Sri Sidiqui thereafter prepared recovery memo of country-made pistol and empty cartridge (Ext. Ka-10) in presence of the witnesses. He thereafter took the accused to the police station and lodged him in police lock up. Thereafter he was produced before the Magistrate and was remanded to judicial custody. Sri Lalji Prasad (PW-4) the then Constable of P.S. Baghauli on the basis of recovery memo of country-made pistol and empty cartridge prepared separate First Information Report (Ext. Ka-11) and registered a separate case under Section 25 of the Arms Act at Crime No. 197 of 2004 in the general diary of the police station (copy Ext. Ka-12) for investigation. Dr. Arun Kumar Maurya (P.W.-7) the then Orthopedic Surgeon of the District Hospital, Hardoi conducted autopsy examination of the deceased on 14.6.2004. He found following ante-mortem injury on his person: "Fire arm wound of entry 2cm x 1 cm cavity deep on the upper part of the abdomen 12 cm away from the naval situated at 11 O'clock from naval. The margin was introverted. Blackening and tattooing were present around the wound. The direction of wound was from front to back. On his internal examination he found that clotted and liquid blood was present in the stomach and peritoneum was lacerated. As per opinion of the Doctor, the cause of death of the accused was shock and hemorrhage as a result of anti-mortem injuries. Dr. Maurya also found 21 pellets inside the body of the deceased." Dr. On his internal examination he found that clotted and liquid blood was present in the stomach and peritoneum was lacerated. As per opinion of the Doctor, the cause of death of the accused was shock and hemorrhage as a result of anti-mortem injuries. Dr. Maurya also found 21 pellets inside the body of the deceased." Dr. Maurya after conducting the autopsy examination of the deceased prepared postmortem examination report (Ext. Ka-7) and handed over the same to the constable to be taken to the police station. Sri Siddiqui during the investigation although had recorded the statement of the complainant and some of the witnesses but he could not complete the investigation. The investigation was thereafter taken over by Sub Inspector, Sri Yogendra Pratap Singh (PW-5), the subsequent S.O. of police P.S. Baghauli who visited the place from where the country-made pistol used by the accused in commission of the murder of the deceased was hidden by him. He prepared the site plan (Ext. Ka-13). Sri Singh concluded the investigation of the case registered under Section 302 IPC and submitted the charge-sheet (Ext. Ka-14) against the accused. 4. The investigation of case Crime No. 197 of 2004 under Section 25 Arms Act was concluded by Sri Jitendra Singh, the then S.I. in-charge of O.P. Railwayganj, P.S. Baghauli, District Hardoi. He prepared the site plan (Ext. Ka-18) of the place of recovery, recorded the statement of witnesses. He thereafter on the basis of evidence collected by him against the accused obtained the requisite sanction (Ext. Ka-19) for prosecution of the accused as required under the Arms Act from the District Magistrate, Hardoi and thereafter submitted charge-sheet (Ext. Ka-20) under Section 25 of the Arm Act against the accused. Both the cases i.e. case under Section 302 I.P.C. as well as case under Section 25 of the Arms Act being related with the same incident were committed by the Chief Judicial Magistrate, Hardoi for trial to the Court of Sessions which gave rise to the Sessions Trial No. 902/04; State Vs. Babloo alis Ajai Kumar Tewari under Section 302 IPC and Sessions Trial No. 903/04; State Vs. Babloo alis Ajai Tiwary under Section 25 Arms Act respectively. The Sessions Trial was transferred by the learned Sessions Judge, Hardoi to the Court of learned Additional Sessions Judge, Court No. 2, Hardoi for trial. Babloo alis Ajai Kumar Tewari under Section 302 IPC and Sessions Trial No. 903/04; State Vs. Babloo alis Ajai Tiwary under Section 25 Arms Act respectively. The Sessions Trial was transferred by the learned Sessions Judge, Hardoi to the Court of learned Additional Sessions Judge, Court No. 2, Hardoi for trial. The accused was charged by the learned Additional Sessions Judge under Section 302 I.P.C. as well as under Section 25 of the Arms Act to face the trial who pleaded not guilty to the charges and claimed to be tried. 5. The prosecution in support of charge levelled against the accused appellant had examined as many as eight witnesses. These witnesses are Virendra Kumar, complainant (PW-1), Sandeep Kumar (PW-2), S.I. Mohd. Javed Siddqui (PW-3), Constable Lalji Prasad (PW-4), S.I. Yogendra Pratap Singh (PW-5), Constable Sitaram (PW-6), Dr. Arun Kumar Maurya (PW-7) and S.I. Jitendra Singh Sengar (PW-8). Out of these witnesses, Virendra Kumar (PW-1) was the informant of the case as well as eye witness of the occurrence and Sandeep Kumar (PW-2) was also eye witness of the occurrence. Both these witnesses had fully supported the prosecution case. S.I. Mohd. Javed (PW-3) and S.I. Yogendra Pratap Singh (PW-4) were the Investigating Officers, who formally proved the papers prepared by them during the investigation. S.I. Mohd. Javed (P.W.3) had supported the fact that accused appellant had confessed that he had committed the murder of the deceased. He had disclosed that he had hidden the country made pistol used in the commission of murder of the deceased in his house. He took the accused to his house who in his presence as well as in the presence of the witnesses had taken out the country made pistol containing empty cartridges in its barrel from a room of his house. The rest of the witnesses were the formal witnesses who had formally proved the papers as referred above. The accused-appellant was examined by the learned Additional Sessions Judge under Section 313 Cr.P.C. He had denied his involvement in the alleged incident. He had also denied that he had any confessional statement before the S.O., Sri Mohd. Javed Siddiqui. He had also denied that he handed over the country made pistol to S.I Mohd. Javed (P.W.3) which is said to have been hidden by him in his house. He had also denied that he had any confessional statement before the S.O., Sri Mohd. Javed Siddiqui. He had also denied that he handed over the country made pistol to S.I Mohd. Javed (P.W.3) which is said to have been hidden by him in his house. He had further stated that witnesses had given false statement against him on account of enmity. The accused had further stated that Brijesh (brother of the deceased) had purchased agricultural plot of his brother Anil, who had not paid the entire amount of sale consideration. His brother Anil used to make demand of remaining amount of sale consideration from Brijesh, therefore, the informant (Virendra), who is brother of Brijesh, had falsely implicated him in this case. The accused did not adduce any oral evidence in his defense; rather he filed two documents in his defense. 6. The leaned Additional Sessions Judge after scrutinizing the oral and documentary evidence available on record held that prosecution had succeeded in bringing home the charge under Section 302 I.P.C. levelled against the accused beyond all reasonable doubts. Consequently, he by the impugned judgment and order dated 27.01.2006 held the accused-appellant guilty under Section 302 I.P.C. The learned Additional Sessions Judge, however, found that prosecution had failed in bringing home the charge levelled against the accused under Section 25 of the Arms Act beyond all reasonable doubts. Consequently, he was entitled to benefit of doubt for the charge under Section 25 of the Arms Act. The learned Additional Sessions Judge after hearing the accused and the prosecution on the point of sentence convicted and sentenced him to undergo life imprisonment and to pay fine of Rs. 5000/- with default stipulation of six months under Section 302 I.P.C. vide impugned judgment and order dated 27.01.2006. 7. Accused being aggrieved by the impugned judgment and order dated 27.01.2006 has challenged the same in the present appeal before this Court. We have heard learned counsel for the appellant and Sri R.P. Shukla, learned A.G.A. as well as perused the trial court's record. The first submission of the learned counsel for the appellant is that the prosecution has examined two eye witness of the incident. These witnesses are Virendra Kumar, informant (PW-1) and Sandeep Kumar (PW-2). The informant Virendra Kumar (PW-1) is real brother of the deceased while Sandeep Kumar (PW-2) is the resident of informant's village as well as his relative. The first submission of the learned counsel for the appellant is that the prosecution has examined two eye witness of the incident. These witnesses are Virendra Kumar, informant (PW-1) and Sandeep Kumar (PW-2). The informant Virendra Kumar (PW-1) is real brother of the deceased while Sandeep Kumar (PW-2) is the resident of informant's village as well as his relative. As per site plan of the place of occurrence prepared by the Investigating Officer, it appears that the incident had taken place in the mid of the village abadi. The houses of Balak Ram, Ram Chander, Suresh Teli and Suresh Bhurji were almost adjacent to the place of occurrence. Persons living in these houses were natural and best witnesses of the incident to unfold the prosecution case. But the Investigating Officer had neither examined the persons living in these houses nor any of them had been examined by the prosecution at the trial. The prosecution had chosen to examine close relative of the deceased, who were interested witnesses. Learned counsel for the appellant submits that the independent witnesses were there to unfold the prosecution case but the prosecution failed to examine them without any explanation; rather prosecution had examined the related and interested witnesses. The statements of these witnesses could not be said to be free from any doubt and could not be relied upon to hold the accused guilty. 8. Sandeep Kumar (PW-2) is the resident of the same village as the informant. He has stated that on the date of occurrence he was transporting manure on his tractor from his village to be thrown in his field situated in village Jarera where the occurrence is said to have taken place. At the time of occurrence, he as well as Bishnu Narayan, who was also working on the tractor, had gone to take water at the hand pipe situated near the place of occurrence. When he reached there he had seen the occurrence. This witness is purely chance witness who is relative of the informant. His presence near the place of occurrence has been manipulated by the Investigating Officer leaving the natural witnesses of the locality. Therefore, his statement cannot be relied upon to hold the accused guilty. As regards the statement of Virendra Kumar (PW-1), he is real brother of the deceased, who is a highly interested witness. He did not try to intervene. His presence near the place of occurrence has been manipulated by the Investigating Officer leaving the natural witnesses of the locality. Therefore, his statement cannot be relied upon to hold the accused guilty. As regards the statement of Virendra Kumar (PW-1), he is real brother of the deceased, who is a highly interested witness. He did not try to intervene. This facts belies his presence at the place of occurrence. His statement is not corroborated by any independent witness. In the absence of corroboration of his statement by independent witness his statement cannot be said to cogent and reliable. There is no other witness to unfold the prosecution case. He, therefore, could not be relied upon to hold the accused guilty. The learned Trial Court relying on the interested and chance witnesses has held the accused guilty which is bad in the eye of law. The impugned judgment and order is not based on proper appreciation of evidence. Therefore, the same is liable to be set aside on this ground alone. The second submission of learned counsel for the appellant is that as per statement of Mohd Javed (PW-3) the Investigating Officer, the accused made confessional statement before him that he had committed murder of the deceased using country made pistol. He is said to have disclosed before him that he had hidden the country made pistol in his house and could get the same recovered. On the basis of his confessional statement, Mohd Javed (PW-3) is said to have taken him to his house and in presence of witnesses he entered in a room of his house and took out the so called country made pistol alleged to have been used by him in commission of murder of the deceased which he had hidden in his room. The prosecution in support of the recovery of country made pistol had examined only Mohd Javed (PW-3), who was highly interested witness. The independent witnesses, who were named in the recovery memo, had not been examined by the prosecution without any explanation in support of fact of recovery of country made pistol. The country made pistol and empty cartridge were sent to Ballistic expert for examination. The Ballistic expert's report shows that marks found on the recovered cartridge and country made pistol were not sufficient for examination. Therefore, no definite opinion could be given by him. The country made pistol and empty cartridge were sent to Ballistic expert for examination. The Ballistic expert's report shows that marks found on the recovered cartridge and country made pistol were not sufficient for examination. Therefore, no definite opinion could be given by him. The learned counsel for the appellant submits that on the basis of oral and documentary evidence, the learned Additional Sessions Judge has held that prosecution had failed to prove the charge under Section 25 of the Arms Act levelled against the accused beyond all reasonable doubts. Consequently, the learned Additional Sessions Judge has acquitted him of the charge under Section 25 Arms Act. In this way, the learned trial court has partly disbelieved the prosecution story. Therefore, rest of the prosecution story could not be said to be free from any doubt. In fact, keeping in view the over all evidence of the prosecution, the entire prosecution story becomes highly doubtful and accused is entitled for acquittal of the charge of Section 302 I.P.C. too. The learned counsel for the appellant lastly argued that if the prosecution story is taken to be true on its face value even then no offence under Section 302 I.P.C. is made out against the accused. The learned counsel submits that accused had not caused the death of the deceased with pre-meditation of mind. It was a single fire given by the accused which was done only in the beat of passion upon sudden quarrel. The accused had not opened fire on the deceased either with the intention to cause his death or with the knowledge to cause such bodily injury which in its normal course was sufficient to cause his death. The act of accused is covered under exception 4 of Section 300 I.P.C. i.e. the culpable homicide not amounting to murder. The accused, therefore, cannot be held guilty under Section 302 I.P.C.; rather he can hardly be held guilty under Section 304 (Part-II) I.P.C. only. The finding of the trial court that the accused was guilty under Section 302 I.P.C is not based on proper appreciation of the facts and circumstances of the case as well as the law on the point. The finding of the trial court is, therefore, bad in the eyes of law and is liable to be set aside. 9. The finding of the trial court that the accused was guilty under Section 302 I.P.C is not based on proper appreciation of the facts and circumstances of the case as well as the law on the point. The finding of the trial court is, therefore, bad in the eyes of law and is liable to be set aside. 9. The learned A.G.A. supported the impugned judgment and order passed by the learned Additional Sessions Judge. The submission of the learned A.G.A. is that Virendra Kumar (PW-1) and Sandeep Kumar (PW-2) are not the interested witnesses; rather they are relative witnesses. Their testimony cannot be disbelieved merely on the ground that they are relative witnesses. Learned counsel submits that interested witnesses and the relative witnesses can be safely relied upon by the trial court to hold the accused guilty if their statements appear to be wholly reliable and free from any blemishor material contradiction. The law only requires that the statement of such witnesses can be relied upon to hold the accused guilty after careful scrutiny. 10. The learned A.G.A. contends that as regards the statement of Virendra Kumar (PW-1), he has stated that at the time of occurrence along with his brother Ram Adhar (deceased) was going to purchase Ox from village Narayanpur. The village of incident i.e. Jarera is situated in between two villages i.e. village Danmandi and Narayanapur. P.W.1 further stated that at about 3.00 P.M both of them were passing through village Jarera and when they reached near the house of Suresh Bhurji, Babloo @ Ajay Kumar Tewari met them on the way who had already taken liquor and was under intoxication. He demanded some money from his brother Ram Adhar (deceased) for purchasing liquor who refused to pay any amount. When they were proceeding towards village Narayanpur accused Babloo @ Ajay followed them. He was insisting his brother Ram Adhar for payment of money. When he got disappointed that he would not succeed in his attempt, he took out his country made pistol and fired on the abdomen of his brother which resulted in his instantaneous death. From a perusal of the post-mortem examination report of the deceased, it appears that fire arm wound was found on his abdomen. In this way, the statement of informant, Virendra Kumar (PW-1) is supported by the medical evidence. From a perusal of the post-mortem examination report of the deceased, it appears that fire arm wound was found on his abdomen. In this way, the statement of informant, Virendra Kumar (PW-1) is supported by the medical evidence. He being real brother of the deceased was most natural and probable witness. His testimony cannot be disbelieved only on the ground that he is brother of the deceased and witnesses of the locality i.e. resident of village Jarera did not come forward to disclose about the incident. The occurrence is said to have taken place in village Jarera and the deceased and informant were resident of another village i.e. Danmandi. It was but natural that no independent witness of Jarera village would come forward to give eye account of the occurrence against the accused of his village. The informant Virendra Kumar (PW-1) has been cross examined by the leaned defence counsel at length but there is no contradiction in his statement regarding date, time and place of the occurrence. He is the most natural witness and has unfolded the prosecution story. His statement is corroborated by the statement of Sandeep Kumar (PW-2) who had reached the place of occurrence to take water from hand pipe situated near the place of occurrence. He has stated that on the date of occurrence he was transporting manure from the village Danmandi by tractor (informant's village) which was to be thrown in the field situated in village Jarera. The occurrence had taken place at 3.00 P.M. during the day. It would have been most natural that the witness would have gone there to take water at the hand pipe situated near the place of occurrence. Sandeep Kumar (PW-2) may be termed as chance witness even then his statement appears to be most natural. Assuming that he is a chance witness even then his presence near the place of occurrence appears to be natural. He has given ocular account of occurrence. He has stated that on the date of occurrence he was transporting manure by his tractor from his village which was to be thrown in his field situated in village of occurrence. He along with Bishnu Narayan had gone to take water to quench his trust at the hand pipe which was situated near the place of occurrence. He has stated that on the date of occurrence he was transporting manure by his tractor from his village which was to be thrown in his field situated in village of occurrence. He along with Bishnu Narayan had gone to take water to quench his trust at the hand pipe which was situated near the place of occurrence. When they were present near the hand pipe, they had seen that some altercation was going on between the deceased and accused. This place was about ten meters away from the hand pipe. During the course of altercation Babloo alias Ajay opened fire on Ram Adhar. The informant Virendra Kumar, brother of Ram Adhar, was also present there. Ram Adhar sustained injury on his abdomen. He fell down and collapsed on account of injuries. Virendra Kumar (PW-1) and Sandeep Kumar (PW-2) have given eye account of occurrence without any material contradiction in their statements with regard to date, time, place and manner of occurrence. Statement of Sandeep Kumar (PW-2) is consistent with the statement of Virendra Kumar (PW-1) as well as medical evidence. The learned Additional Sessions Judge after thorough scrutiny of the statements of PW-1 and PW-2 found that their statement were cogent and reliable which does not suffer from any perversity. The impugned judgment and order passed by the learned Additional Sessions Judge is based on proper appreciation of evidence on record which does not call for any interference. 11. The learned AGA further submits that although the injured had sustained single shot fire arm injury which resulted in his death, but the criminal act done by the accused will not fall within the ambit of Section 304 I.P.C. only on this ground. Accused-appellant was demanding money from the deceased for purchasing liquor when he did not concede to his demand, he took out his country made pistol and opened fire on him. The nature of injury to be caused by the fire arm could naturally be presumed that the accused would have shot the deceased with the intention of causing his death or causing such bodily injury which in its natural course, was sufficient to cause his death. The nature of injury to be caused by the fire arm could naturally be presumed that the accused would have shot the deceased with the intention of causing his death or causing such bodily injury which in its natural course, was sufficient to cause his death. The act of the accused is squarely covered under the definition of murder as provided under Section 300 I.P.C. The learned Additional Sessions Judge in view of the facts and circumstances of the case has rightly held the accused appellant guilty under Section 302 I.P.C. In this way, the impugned judgment and order passed by the trial court does not suffer from any infirmity or illegality which does not call for interference. The learned A.G.A. in support of his arguments has placed reliance on cases Kulesh Mandal Vs State of West Begal reported in 2007 AIR SCW 5880, Abdul Rashid Abdul Rahiman Patel and others,Vs State of Maharashtra reported in 2007 AIR SCW 4576, Major Singh and others Vs State of Punjab Mano Vs State of Tamil Nadu reported in 2007 AIR SCW 2736, Namdeo Vs State of Maharashtra Vs State of Maharashtra, reported in 2007 AIR SCW 1835 and Ram Gopal Vs State of Rajasthan reported in 1998 6 Supreme Court Cases 441. We have given thoughtful consideration to the submissions of learned counsel for the appellant and the learned AGA. We find ourselves unable to agree with the submissions of learned counsel for the appellant. In the case of Kulesh Mandal (supra), the Hon'ble Apex Court has held that testimony of a witness cannot be disbelieved only on the ground that he is a close relative of the deceased. The relevant observation of the Hon'ble Apex Court finds in para 7 of the judgment which is being extracted below:- "7. We may also observe that the ground that the witnesses being close relatives and consequently being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh and Ors. v. The State of Punjab ( AIR 1953 SC 364 ) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. This theory was repelled by this Court as early as in Dalip Singh and Ors. v. The State of Punjab ( AIR 1953 SC 364 ) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: "We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in 'Rameshwar v. State of Rajasthan' ( AIR 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel." 13. In Abdul Rashid Abdul Rahiman Patel and others (supra), the Hon'ble Apex Court has held that if the statement of interested witness found to be credible, consistent and corroborated by the medical evidence, it cannot be discarded on the ground that he is interested person if he is otherwise found to be reliable. The Hon'ble Court in this case, relied on the interested witnesses whose evidence was corroborated with the medical evidence. The relevant observation of the Hon'ble Apex Court finds in para 17 of the judgment which is being extracted below:- 17. The learned counsel for the appellants submitted that no reliance should be placed upon the evidence of PWs 7, 8, 11, 12 and 19 as all of them are related to members of the prosecution party. It is well-settled that in a criminal trial merely because a witness is interested his evidence cannot be discarded if the same is otherwise found to be credible. 14. It is well-settled that in a criminal trial merely because a witness is interested his evidence cannot be discarded if the same is otherwise found to be credible. 14. In Mano Vs Tamil Nadu (supra), the Hon'ble Apex Court has held that the statement of relative of the deceased cannot be discarded merely on the ground that he is relative of the deceased rather the relative of the deceased would hardly implicate any innocent person in the incident leaving real culprit. The relevant observation of the Hon'ble Apex Court finds in para 11 of the judgment which is being extracted below:- "11. In regard to the interestedness of the witnesses for furthering the prosecution version, relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations agains an innocent person. Foundation has to be laid if a plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible." In the case of Namdeo Vs State of Maharastra (supra), the Hon'ble Apex Court has held that the witness who is a relative of the deceased or victim of a crime cannot be characterized as interested. The term interested postulates that the witness has some direct or indirect interest in having the accused somehow or other conviction due to animus or for some other oblique motive. The relevant observation of the Hon'ble Apex Court finds in para 31 of the judgment which is being extracted below:- "31. It was then contended that the only eye witness PW-6 Sopan was none other than the son of the deceased. He was, therefore, 'highly interested' witness and his deposition should, therefore, be discarded as it has not been corroborated in material particulars by other witnesses. We are unable to uphold the contention. In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive." 15. The Hon'ble Apex Court further held that relative witness may be relied upon to hold the accused guilty. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive." 15. The Hon'ble Apex Court further held that relative witness may be relied upon to hold the accused guilty. The law only requires that the statement of such witnesses be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the sole testimony of such witness. Close relationship of witness with the deceased or victim is not a ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. The relevant observation of the Hon'ble Apex Court finds place in para 42 of the judgment which is being extracted below:- 42. From the above case law, it is clear that a close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is not ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. The law laid down by the Hon'ble Apex Court in the above cited cases, was again emphasized by the Hon'ble Court again in Kalegura Padma Rao and another Vs The State of A.P., reported in 2007 AIR SCW 1447 and laid down that relation ship of witnesses with the deceased or the victim of the crime does not affect his credibility. The relatives of the deceased or victim will hardly be expected to conceal the actual culprit implicating the innocent person in the case. In view of of the law laid down by the Hon'ble Apex Court in the above cited cases, it is clear that the relative person may safely be relied upon to hold the accused guilty, if his statement after careful scrutiny is found to be reliable and trustworthy. In view of of the law laid down by the Hon'ble Apex Court in the above cited cases, it is clear that the relative person may safely be relied upon to hold the accused guilty, if his statement after careful scrutiny is found to be reliable and trustworthy. In this case, Virendra Kumar (PW-1), is brother of the deceased and Sandeep Kumar (PW-2) is resident of the village of informant. Both of them have given eye account of the occurrence. These witnesses had no motive to implicate the accused appellant falsely. On the other hand accused being liquor addict was demanding money illegally from the deceased to quench his thrust for liquor. It would have been most natural to him that he would have under intoxication committed the offence. 16. It was argued by the learned counsel for the appellant that Virendra Kumar (P.W.-1) was the real brother of the deceased. From a perusal of his statement, it appears that he did not try to intervene and save his brother. His appearance at the place of occurrence when it had taken place appears to be most unnatural. If he had been present there, he, in natural course, would have come forward to rescue his brother. Sandeep Kumar (P.W.-2) is the resident of the same village as the informant. He was a chance witness too, therefore, his presence at the place of occurrence at time the occurrence had taken place appears to be most unnatural and he cannot be relied upon to hold the accused guilty. The statement of these two witnesses have not been corroborated with any natural independent witness, therefore, it will not be safe to rely upon the statement of Virendra Kumar (P.W.-1) and Sandeep Kumar (P.W.-2). We do not agree with the submission of learned for the appellant. 17. The incident had taken place all of a sudden even within few seconds. The accused all of a sudden opened fire on the deceased from his country-made pistol who declined to satisfy his demand for money. P.W.-1 (Viendra Kumar) was not expected to intervene within such a short span of time as he would have taken aback by the sudden occurrence. The witness would not have smelt that the accused was actually going to shoot his brother. P.W.-1 (Viendra Kumar) was not expected to intervene within such a short span of time as he would have taken aback by the sudden occurrence. The witness would not have smelt that the accused was actually going to shoot his brother. The other witness P.W-2 (Sandeep Kumar) was present there few meters away from the place of occurrence he also could not be expected to intervene as he also did not expect that the accused was going to shoot the deceased. In the circumstances if the witnesses did not try to save the deceased, their statement cannot be discarded on this ground alone. P.W.-1 (Virendra Kumar) and P.W.-2 (Saneep Kumar) have given eye account of the occurrence. There is no contradiction in their statements with regard to date, time, place and manner of the occurrence. Their statement is corroborated by the medical evidence too. The incident had taken place at about 3:00 PM. during the day. It is not expected from the witness that they leaving the real culprit would have falsely implicated the accused without any enmity. Keeping in view the entire facts and circumstances of the case, the statement of P.W-1 (Virendra Kumar) and P.W-2 (Sandeep Kumar) appear to be most natural, credible and cogent and they are worth reliable to hold the accused guilty. We, therefore, find that the Trial Court has rightly believed the prosecution witnesses Virendra Kumar (PW1) and Sandeep Kumar (PW-2) and held the accused guilty. We do not find any ground to interfere with the finding of the Trial Court. The last point to be considered in this appeal is that whether the criminal act committed by the accused will fall within the purview of Section 299 i.e. Culpable Homicide or will fall within the purview of Section 300 i.e. Murder? The culpable homicide has been defined under Section 299 of the IPC while the murder has been defined under Section 300 of the IPC which are being reproduced below in a comparative form: 299. Culpable homicide- Whoever causes death by doing an act 300. The culpable homicide has been defined under Section 299 of the IPC while the murder has been defined under Section 300 of the IPC which are being reproduced below in a comparative form: 299. Culpable homicide- Whoever causes death by doing an act 300. Murder - Except in the cases excepted culpable homicide is murder, if the act With the intention of causing death By which the death is caused is done with the intention of causing death With the intention of causing such bodily injury as is likely to cause death If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused With the knowledge that he is likely by such act to cause death If it is done 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 If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1-When culpable homicide is not murder-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. Exception 2-Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3-Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting or the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. Exception 5-Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. 19. From a perusal of the definition defining of culpable homicide and murder as mentioned here in above, it is clear that a murder is culpable homicide if committed with the intention and knowledge and the circumstances enumerated above but a culpable homicide is not always murder. The culpable homicide is a genus and the murder is its specie. From a perusal of the definition of culpable homicide and murder, it is clear that the three ingredients of murder are almost the same as the three ingredients of culpable homicide. The main criteria for determining a particular act as to whether it will be culpable homicide or murder will depend upon probability of death of the deceased on account of the injury caused by the accused to him. If, the accused had committed act knowing that the the act committed by him was imminently so dangerous that it must in all probability will cause the death or such bodily injury as is likely to cause his death and he commits that act without any excuse in incurring risk or causing death or such injury as aforesaid, his act will amount murder. In the present case, it is clear from the evidence that the statement of P.W.-1 (Virendra Kumar) and P.W.-2 (Sandeep Kumar) that the accused had already taken liquor at the time of occurrence. He was under intoxication. He was demanding money from the deceased for purchasing liquor to quench his thrust of liquor. He was having illegal country-made pistol with him. He was under intoxication. He was demanding money from the deceased for purchasing liquor to quench his thrust of liquor. He was having illegal country-made pistol with him. He was insisting the deceased for payment of money, when he did not concede to satisfy his demand, the accused opened fire on him from his country-made pistol which hit him on his abdomen causing his instantaneous death. The accused had used country-made pistol in shooting the deceased. He had shot the deceased on his abdomen. The nature of injury caused by accused to the deceased was such that it in all probability was sufficient to cause the death of the deceased. The act of accused is, therefore, squarely covered within the definition of Section 300 of the IPC. 20. The learned defence counsel taking the shelter of exception fourth to Section 300 I.P.C. argued that the accused had not fired the deceased with pre-meditation of mind; rather it was done in the beat of passion on sudden quarrel. But we do not find any force in the argument of learned defence counsel. Although the evidence adduced by the prosecution does not reveal that the accused in a pre-planned manner was waiting the decease armed with country made pistol to kill him. But it has been established by the prosecution evidence that he had already taken liquor and was under intoxication. He was having country-made pistol with him, he demanded money from the deceased to purchase liquor when the deceased did not satisfy his demand he shot him. The idea to shoot the deceased had developed to the accused on the spot as he was not satisfying his demand. The word pre-meditation of mind as used in exception of the Section 300 I.P.C does not contemplate only planned idea of committing murder. The idea to commit murder of a person may develop to the accused on the spot too which will be covered within the meaning of pre-mediation of mind. The accused had shot the deceased without any quarrel. The act of the accused in shooting the deceased was his unilateral act. Therefore, in view of the given facts and circumstances of the case the accused can not take the shelter of the exception fourth to Section 300 I.P.C. 21. The accused had shot the deceased without any quarrel. The act of the accused in shooting the deceased was his unilateral act. Therefore, in view of the given facts and circumstances of the case the accused can not take the shelter of the exception fourth to Section 300 I.P.C. 21. We are of the considered opinion that in view of the facts and circumstances of the case as well as on the basis of evidence led by the prosecution, the learned Additional Session Judge has rightly held the accused guilty under Section 302 IPC which does not call for any interference by this court. The appeal has got no force and liable to be dismissed. The accused is already in jail serving out the sentence awarded to him, therefore, he need not be arrested. The appeal is, therefore, dismissed.