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2016 DIGILAW 2073 (ALL)

Durgesh Kumar Singh v. State of U. P.

2016-05-27

ANIL KUMAR SRIVASTAVA-II, SURENDRA VIKRAM SINGH RATHORE

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JUDGMENT Surendra Vikram Singh Rathore, J. – Mr. R.P. Misra, learned counsel for the appellant, and Mrs. Ruhi Siddiqui, learned AGA for the State, were heard at length. 2. Under challenge in the instant criminal appeal is the judgment and order dated 15.12.2010 passed by 1st Additional Sessions Judge, Gonda, in Sessions Trial No.266 of 2007 arising out of Case Crime No.14 of 2007, under Sections 147, 148, 302/149 IPC, Sessions Trial No.267 of 2007 arising out of case Crime No.15 of 2007, under Sections 25/27 of the Arms Act and Sessions Trial No.35 of 2008 against Dileep Singh arising out of case Crime No.16 of 2007 under Section 30 of the Arms Act, Police Station Katra Bazar, District Gonda, whereby the present appellant Durgesh Kumar Singh was convicted for the offence under Section 302 IPC and was sentenced with imprisonment for life and also with fine of Rs. 10,000/- with default stipulation of ten months' additional rigorous imprisonment. He was further convicted for the offence under Section 25 /27 of the Arms Act and was sentenced with three years' rigorous imprisonment and also with fine of Rs. 1,000/- with default stipulation of one month's additional rigorous imprisonment. Both the sentences were directed to run concurrently. By the same judgment, Dileep Kumar Singh, who took his trial for the offence under Section 30 of the Arms Act, was also convicted. However, he was granted benefit of Section 3 of the Probation of Offenders Act. The other accused persons, who also took trial with the present appellant, were granted benefit of doubt and were acquitted of all the charges levelled against them. 3. Admittedly, no appeal has been preferred by the State challenging the acquittal of other accused persons. 4. In brief, the case of the prosecution was that the first information report of this case was lodged by one Badri Nath Tiwari at Police Station Katra Bazar on 06.02.2007 at 11.30 AM alleging therein that Vinod Kumar Singh son of late Lallu Dubey is resident of his village and is also his relative. His land is situated adjacent to the house of Awadh Raj Singh. On 06.02.2007 at 09.30 AM appellant Durgesh Kumar Singh along with his brothers namely Anil Kumar Singh, Santosh Kumar Singh and his father Awadh Raj Singh son of Vijay Raj Singh formed an unlawful assembly. His land is situated adjacent to the house of Awadh Raj Singh. On 06.02.2007 at 09.30 AM appellant Durgesh Kumar Singh along with his brothers namely Anil Kumar Singh, Santosh Kumar Singh and his father Awadh Raj Singh son of Vijay Raj Singh formed an unlawful assembly. Appellant Durgesh Kumar Singh was armed with a DBBL gun of his elder brother Dileep Kumar Singh and the remaining accused persons were armed with illegal weapons. They were taking the possession of land of Vinod Kumar forcibly. In the meantime, Raghavram reached there and asked the accused persons not to do so then the accused persons said that they will take possession of the land and you may do whatever you like. On this reply, Raghavram raised alarm then Awadh Raj Singh exhorted his sons to kill him and on his exhortation, appellant Durgesh Kumar Singh fired two shots with the licensed double barrel gun on Raghav Ram due to which he fell down. Hearing the noise, Parashuram, Shiv Dass and Hariram of the village also reached there who had seen the incident. It was also alleged that the accused persons had also surrounded the complainant but because of the arrival of the village persons they ran away from the place of occurrence. The complainant took his injured brother to the District Hospital, Gonda, where he was declared dead. Leaving the dead body in the mortuary, the complainant went to lodge the first information report of this case and the same was registered at 11.30 AM. Prior to that at 11.15 AM information of death of Raghavram Tiwari was sent by the hospital to the Police Station Gonda through ward boy Gherau Prasad on the basis of which inquest proceedings were conducted and after completing necessary formalities, the dead body was sent for postmortem which was conducted on 06.02.2007 at 04.00 PM. The duration of death was about 1/2 day and following ante-mortem injuries were reported by the doctor: - (i) Firearm wound of entry in an area of 10 cm x 3 cm x muscle deep on left side forehead, 2 cm above left ear. Blackening and scorching were present. Margins were inverted and lacerated. (ii) Firearm wound of entry in an area of 2 cm x 0.5 cm x cartilage deep. Margins were ruptured and blackening was present. Blackening and scorching were present. Margins were inverted and lacerated. (ii) Firearm wound of entry in an area of 2 cm x 0.5 cm x cartilage deep. Margins were ruptured and blackening was present. (iii) Firearm wound of entry 4 cm x 2.5 cm x muscle deep on the back left side 8 cm below left scapular joint. Margins were inverted. (iv) Firearm wound of entry 7 cm x 6 cm x abdominal cavity deep on right side 5 cm away from umbilicus 4.5 cm above the right illiac crest. Margins were inverted. Intestine was protruding out of the wound. In the internal examination, three liter blood was found from the abdominal cavity. Total 30 pellets and one plastic cork were recovered from the different parts of the body. In the opinion of the doctor, the cause of death was shock and haemorrhage as a result of ante-mortem firearm injuries. 5. During course of investigation, the Investigating Officer investigated the place of occurrence, took blood stained and plain soil from the place of occurrence and search of the house of accused persons was taken but nothing material could be recovered from the house. On the same day at 1730 hours, accused appellant Durgesh Kumar Singh along with licensed DBBL gun and 10 live cartridges of 12 bore was arrested. Accused Anil Kumar Singh, Awadh Raj Singh and Vinay Singh were also arrested by the police along with appellant Durgesh Kumar Singh while they were trying to leave the village by catching a train. 6. On the basis of this recovery, a separate case under Section 25 of the Arms Act was registered against appellant Durgesh Kumar Singh and under Section 30 of the Arms Act against accused Dileep Kumar Singh, who was the licensee of the gun. During investigation, it also came into light that Parashuram, who was named as an eyewitness in this case, was also caused injury by Anil Kumar Singh with 'farsa' and Vinay Kumar Singh by lathi. He was also examined in the District Hospital, Gonda on 06.02.2007 at 10.10 AM. 7. After completing the investigation, charge sheet was filed against the appellant. 8. The defence of appellant Durgesh Kumar Singh was that he has been falsely implicated in this case. The deceased was murdered in the early hours of the morning in the dark. In this case, Parashuram has not received any injury. 9. 7. After completing the investigation, charge sheet was filed against the appellant. 8. The defence of appellant Durgesh Kumar Singh was that he has been falsely implicated in this case. The deceased was murdered in the early hours of the morning in the dark. In this case, Parashuram has not received any injury. 9. In order to prove its case, the prosecution has examined PW-1 Badri Nath Tiwari – the complainant of this case, PW-2 Parashuram Dubey – an injured witness, PW-3 Kailash Nath Tiwari, as witnesses of fact. PW-4 Malikram Tiwari is a witness of inquest proceedings. PW-5 Ram Sumer Tripathi is the initial Investigating Officer of this case who has also made recovery from the appellant. PW-6 is Dr. D.M. Saxena, who has conducted the postmortem on the body of the deceased Raghavram Tiwari. PW-7 Rakesh Yadav is the second Investigating Officer of this case who took up the investigation from 27.02.2007. PW-8 is SI Vinod Kumar Misra, who has prepared the Chik report and GD of this case. PW-9 is Constable Sitaram Rao, who has prepared the Chik report and GD of the case under Arms Act. PW-10 is SI Ayodhya Nath, who was the member of the police party while appellant Durgesh Kumar Singh was arrested by the police along with double barrel gun of his brother. PW-11 SI Mohan Misra is the Investigating Officer of the case under Arms Act. PW-12 is Dr. G.K. Singh, who has medically examined injured Parashuram Dubey (PW-2). 10. In defence, Smt. Sudha Singh wife of Dileep Kumar Singh has been examined who has stated that her husband was posted in Leh. Police came to her house and has forcibly taken the gun of her husband. 11. As court witness, CW-1 Rajeshwari Prasad Dubey, Arms Clerk has been examined. His evidence relates to Dileep Kumar Singh whose appeal is not before us. 12. After appreciating the evidence on record, learned trial court has convicted the appellant, as above, hence, the instant criminal appeal. 13. Submission of the learned counsel for the appellant was two folds. It has been argued that on the basis of the same evidence, all other co-accused persons have been acquitted of all the charges and on the basis of the same evidence, learned trial court has convicted the appellant. 13. Submission of the learned counsel for the appellant was two folds. It has been argued that on the basis of the same evidence, all other co-accused persons have been acquitted of all the charges and on the basis of the same evidence, learned trial court has convicted the appellant. It has also been argued that the allegation of causing injuries to Parashuram Dubey was not mentioned in the first information report. So it creates doubt on the correctness of the prosecution story. The witnesses are close relatives and no independent witness could be examined. In the alternative, it has been argued that even if the case of the prosecution is taken to be true even then the offence would not travel beyond the purview of Section 304 Part I IPC because the incident had taken place on the spur of moment and under grave and sudden provocation, appellant Durgesh Kumar Singh had fired shot on the deceased. 14. Learned A.G.A. has submitted that learned trial court has extended the benefit of doubt to the remaining accused persons but this by itself cannot be a ground to discard the entire prosecution evidence so far as it relates to the present appellant. The appellant has fired two shots which were aimed by him on the head and abdomen of the deceased. So the intention to cause death was very much clear and the offence would be murder under Section 302 IPC and not under Section 304 Part I, IPC. 15. The first point to be considered is whether the acquittal of co-accused persons would benefit the appellant. Admittedly, the role assigned to the present appellant from the very beginning was that he fired on the deceased with DBBL gun which was of his brother, which resulted into his death. The role assigned to Awadh Raj Singh was of exhortation only. Since the fact of causing injury to Parashuram Dubey was not mentioned in the first information report, therefore, learned trial court on this ground was of the view that the case of the remaining accused persons is distinguishable from the present appellant and extended the benefit of doubt to them. 16. Since the fact of causing injury to Parashuram Dubey was not mentioned in the first information report, therefore, learned trial court on this ground was of the view that the case of the remaining accused persons is distinguishable from the present appellant and extended the benefit of doubt to them. 16. Law is settled on the point that it is the duty of the court to separate grain from chaff and where the evidence of the witnesses with regard to a particular accused can be separated, the court will not commit any illegality in convicting the said accused while acquitting the remaining accused persons. The maxim Falsus in uno, falsus in omnibus has no application in India. On this point, reference may be made to the pronouncement of Hon'ble the Apex Court in the case of Gangadhar Behera and others v. State of Orissa reported in, wherein Hon'ble the Apex Court has observed in paragraph 16 as under: - "Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence." Thus, in view of the aforementioned pronouncement of Hon'ble the Apex Court since the prosecution evidence was very clear and separable from the remaining accused persons with regard to the present appellant, appellant Durgesh Kumar Singh cannot be granted any benefit only on the ground that other accused persons have been acquitted. 17. 17. The next submission of learned counsel for the appellant was that the fact that Parashuram Dubey has sustained injuries in this incident was not mentioned in the first information report. Though the acquittal of the accused persons under Section 307 IPC for causing injuries to Parashuram Dubey has not been challenged by the State and all the accused persons have been acquitted for the said charge but the perusal of the evidence shows that it was Durgesh Kumar Singh who first fired shots on Raghavram Tiwari and thereafter the injuries were caused to Parashuram Dubey. If after the injury of Raghavram Tiwari the complainant could not notice the remaining part of the incident then the same would not make it absolutely unreliable to the extent as to discard the other part of the prosecution evidence. The Court cannot ignore the ground realities. A person witnessing such an incident in which his brother sustained gun shot injuries must be in a state of shock and his entire concentration at the place of occurrence would be to take the injured to the hospital and make effort to save his life. Thus, in such circumstances and state of shock, if he could not mention the fact of causing injuries to Parashuram Dubey then the same would not affect the case of the prosecution with regard to the present appellant. 18. The next submission of learned counsel for the appellant was that only related witnesses have been examined. The complainant is the brother of the deceased and PW-3 Kailash Nath Tiwari is also brother of the deceased. Thus, both are real brothers. It is true that PW-1 and PW-3, both, are real brothers of the deceased Raghavram Tiwari. This point has also been considered by the learned trial court. It has been observed in the impugned judgment that when the incident has taken place near the house then the members of the house would be the natural witnesses. Even otherwise the evidence of related witnesses cannot be discarded only on the ground that they are related to the deceased. On the contrary, it is unbelievable that the related witnesses would falsely implicate any other person only because of the enmity sparing the real assailant. From the very beginning, role of firing on the deceased and causing his death has been assigned to the present appellant Durgesh Kumar Singh. On the contrary, it is unbelievable that the related witnesses would falsely implicate any other person only because of the enmity sparing the real assailant. From the very beginning, role of firing on the deceased and causing his death has been assigned to the present appellant Durgesh Kumar Singh. The only requirement to scrutinise the evidence of related witnesses, under law, is that their evidence should be scrutinised with extra care and caution but the same cannot be discarded only on the ground of their relationship. On this point, reference may be made to the pronouncement of Hon'ble the Apex Court in the case of Appa v. State of Gujarat, AIR 1988 SC 698, wherein Hon'ble Apex Court has observed that : "Experience reminds us that civilised people are generally insensitive when crime is committed even in their presence. They withdraw from both, victim and vigilant. They keep themselves away from the Court. They take crime as a civil dispute. This kind of apathy of general public is indeed unfortunate but it is everywhere whether in village life or town and city. One cannot ignore this handicap. Evidence of witnesses has to be appreciated keeping in view such ground realities. Therefore, the Court instead of doubting the prosecution case where no independent witness has been examined must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any suggested by the accused". (Underlined by us) 19. Reference may be made on the pronouncement of Hon'ble the Apex Court in the case of Sahabuddin & Anr. v. State of Assam passed in Criminal Appeal No. 629 of 2010. In this case Hon'ble the Apex Court has discussed the legal position on this point in paragraph no. 16. Relevant portion of the aforesaid judgment reads as under: - "16. ................. At this stage, we may refer to the judgment of this Court in the case of Gajoo v. State of Uttarakhand [JT 2012 (9) SC 10], where the Court while referring to various previous judgments of this Court, held as under: - We are not impressed with this argument. The appreciation of evidence of such related witnesses has been discussed by this Court in its various judgments. The appreciation of evidence of such related witnesses has been discussed by this Court in its various judgments. In the case of Dalip Singh v. State of Punjab [ (1954) SCR 145 ], while rejecting the argument that witnesses who are close relatives of the victim should not be relied upon, the Court held as under: - 26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." Similar view was taken by this Court in the case of State of A.P. v. S. Rayappa and Others [ (2006) 4 SCC 512 ]. The court observed that it is now almost a fashion that public is reluctant to appear and depose before the court especially in criminal cases and the cases for that reason itself are dragged for years and years. The Court also stated the principle that, "by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The Court also stated the principle that, "by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons." This Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness. A witness may be called interested only when he or she derives some benefit from the result of litigation; in the decree in a civil case, or in seeing an accused person punished. {Ref. State of Uttar Pradesh v. Kishanpal and Others [ (2008) 16 SCC 73 ]} In the case of Darya Singh & Ors v. State of Punjab [ AIR 1965 SC 328 ], the Court held as under: - 6. ............ On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars." 20. It will be useful to make a reference of another judgment of Hon'ble the Apex Court, in the case of Satbir Singh & Ors. v. State of Uttar Pradesh reported in [ (2009) 13 SCC 790 ], wherein Hon'ble the Apex Court has held as under: - "26. It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon........." 21. It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon........." 21. Again in a recent judgment in the case of Balraje @ Trimbak v. State of Maharashtra [ (2010) 6 SCC 673 ], Hon'ble the Apex Court has held that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent person. The truth or otherwise of the evidence has to be weighed pragmatically. The Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same. 22. All three eyewitnesses have fully supported the case of the prosecution. Their evidence stands fully corroborated by the medical evidence. Time of death also stands corroborated by the duration noted by the doctor in the postmortem report. So all three eyewitnesses have fully supported the case of the prosecution and have assigned the role of firing to the present appellant. Corresponding injuries were found on the body of the deceased. One firearm wound was found on the forehead and the other was on the abdomen. Thirty pellets and one plastic cork were recovered from different parts of the body of the deceased. So, we are of the considered view that the conclusion of the learned trial court that the prosecution has been able to prove its case beyond reasonable doubt is absolutely correct and no interference is called for in the said conclusion. 23. Now the second limb of argument is to be considered whereby learned counsel for the appellant has submitted that the offence would fall within the purview of Section 304 Part I IPC. 23. Now the second limb of argument is to be considered whereby learned counsel for the appellant has submitted that the offence would fall within the purview of Section 304 Part I IPC. In support of his submission, learned counsel for the appellant has placed reliance on the pronouncements of Hon'ble the Apex Court in the cases of Ahmed Shah and another v. State of Rajasthan reported in (2015) 3 SCC 93 , Chothu Ram v. State of Rajasthan and another reported in (2014) 16 SCC 466 , and Manjeet Singh v. State of Himachal Pradesh reported in [2014 (86) ACC 703]. 24. Law is settled on the point that every criminal case has to be decided in the light of the facts of a particular case. No universal rule of application can be laid down in this regard. 25. In the case of Ahmed Shah (supra), the facts were mentioned in paragraph 2 which reads as under: - "2. The case of the prosecution is that, on 29.4.1996 at about 3.30 P.M. when complainant - Rakhu Shah was at the field of his brother-in-law Abdul Shah along with his sister Rakhia (PW-8), nephew Hasan Ali and Sabbir Shah, the appellants and nineteen other accused along with others forming themselves into an unlawful assembly came to the field. Appellants Ahmed Shah, Gurmukh Singh and Rasool Shah were armed with weapons namely spears and Lathis. Rasool Shah inflicted injuries to complainant Rakhu Shah. The accused persons assaulted complainant's sister Rakhia (PW-8). Ahmed Shah and Gurmukh Singh attacked Sabbir Shah. Gurmukh Singh inflicted injuries on the neck of Sabbir Shah with spear as a result of which his neck was cut and he started bleeding profusely and appellant-Ahmed Shah inflicted injuries with spear on the scalp of Sabbir Shah and Sabbir Shah died on the spot." Hon'ble the Apex Court in paragraph 11 of the aforesaid judgment has observed as under: - "11. The dispute between the parties pertains to the land-14 bighas. The said land was sold by Abdul Shah to appellant-Ahmed Shah for a consideration of Rs. 75,000/- and the possession of the field is said to have been handed over to Ahmed Shah. Ex D8 is the sale agreement dated 9.4.1987 executed by Abdul Shah in favour of Ahmed Shah. Regarding the land, there was a litigation then going on between the parties. 75,000/- and the possession of the field is said to have been handed over to Ahmed Shah. Ex D8 is the sale agreement dated 9.4.1987 executed by Abdul Shah in favour of Ahmed Shah. Regarding the land, there was a litigation then going on between the parties. Case of prosecution is that the accused party went to the field and attempted to dispossess Abdul Shah and Sabbir Shah and thereby alleged to have caused the death of Sabbir Shah and Rakhu Shah and also caused injuries to PW-8 Rakhia. By careful reading of evidence and materials on record, it is seen that the accused party was in actual possession of the land and the complainant's party had gone to the field to take forcible possession." (Underlined by us) Thus, in the facts of that case, Hon'ble the Apex Court on the basis of facts and evidence on record was of the view that the accused party himself was in actual possession of the land and the complainant party had gone to the field to take forcible possession while in the facts of the case in hand it is no where the case of the appellant that he or his family had any concern with the land of which they were taking forcible possession. On the contrary, during course of argument, it was argued that the said land belongs to Vinod Kumar Singh and Vinod Kumar Singh is still in possession of the said land. The appellant has come with a defence that a civil litigation was going on between his father and the father of the complainant but that is a different matter which has no concern with the land on which the appellant had gone to take forcible possession. The earlier civil litigation pertains to the year 1995 as the case number of that civil suit was 253 of 1995 while the incident of this case has taken place in the year 2007 i.e. after about 12 years of pendency of the said civil litigation. 26. In the case of Chothu Ram (supra), from the side of accused party six persons had also sustained injuries which were not explained during trial by the prosecution and Hon'ble the Apex Court in paragraph 8 of the judgment has observed as under: - "8.......... 26. In the case of Chothu Ram (supra), from the side of accused party six persons had also sustained injuries which were not explained during trial by the prosecution and Hon'ble the Apex Court in paragraph 8 of the judgment has observed as under: - "8.......... The High Court has held that in this view of the matter the prosecution having suppressed the genesis of the incident and that Raju had opened fire in order to save himself and his father from serious injury at the hands of the complainant party, it could be inferred that the right of private defence would have arisen to the respondent Raj Kumar but by using the gun and by firing two shots he had exceeded that right. In the light of the fact that the High Court has examined the evidence and given several reasons, we find that no cause for interference is made out even in Criminal Appeal No.963 of 2008. This too is dismissed." Thus, that was a case of exceeding right of private defence. Apart from it, Hon'ble the Apex Court has also noticed the presence of stones in the courtyard of the house of Shankar respondent and also outside the house in the street. Thus, it was a case which initially started with bilateral brick batting and ultimately resulted into injuries to both the sides, while in the facts of the instant case, there is no case of the appellant that any person from his side has sustained injuries or there was any brick batting from both the sides or they acted in exercise of right of private defence. So, the facts of the aforesaid case were also totally different from the facts of this case. 27. In the case of Manjeet Singh (supra), Hon'ble the Apex Court has noticed the reply of PW-9 to a question put by the Court. The reply was as under: - "The driver who was with accused Manjit was heavily drunk and was also abusing the other party and Manjit accused tried to prevail upon him and thereafter said driver attempted to assault those 4-5 persons present in the hall and thereafter free fighting between the parties." Thus, in the case of Manjeet Singh (supra), there was a free fighting between the parties and because of that sudden provocation the fire was shot. 28. 28. When we examine the facts of the instant case then it is clear that it is no where the case of the appellant that the deceased or any other person from the side of the complainant was armed with a weapon or made any attempt to cause injury to him. It has come in the evidence that the land on which the appellant was taking forcible possession by putting cowdung cakes was the land of Vinod Kumar Singh. As per evidence, Vinod Kumar Singh's parents had expired and he was minor. It has also come in the evidence that he was the son of the real brother-in-law (Sala) of the deceased. Thus it appears that the deceased went to defend the minor's property. 29. Under law, every person has a right to defend the property of others also. Here we would like to quote Section 97 of the Indian Penal Code, which reads as under: - "97. Right of private defence of the body and of property.-Every person has a right, subject to the restrictions contained in section 99, to defend- (First) - His own body, and the body of any other person, against any offence affecting the human body; (Secondly)-The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass." Thus, the deceased had a right to defend the property of a minor son of his close relative and if in exercise of such a right he asked the appellant to refrain from such a conduct then the said action of the deceased, by any stretch of imagination, cannot be said to be a provocative conduct. Only because of this act of the deceased, on the exhortation of Awadh Raj Singh, appellant Durgesh Kumar Singh had fired two shots on the deceased which were aimed on the vital parts of the body due to which he died. Here we would like to mention illustration 'c' of Section 300 of the Indian Penal Code, which reads as under: - "A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here we would like to mention illustration 'c' of Section 300 of the Indian Penal Code, which reads as under: - "A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z’s death." Firing with a gun on a person with a close range and that too on the vital parts of the body including head gives rise to the only inference that he had knowledge that his act is so dangerous that it would, in all probability, result into the death of the person to whom injuries have been caused. So the intention of the appellant to cause death can very well be inferred on the basis of facts of this case. At this stage, we would like to quote the pronouncement of Hon'ble the Apex Court in the case of Nankaunoo v. State of Uttar Pradesh reported in (2016) 3 SCC 317 , wherein Hon'ble the Apex Court in paragraph 11 has held as under: - "11. Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. Considering the clause thirdly of Section 300 IPC and reiterating the principles in Virsa Singh’s case, in Jai Prakash v. State (Delhi Administration) (1991) 2 SCC 32 , para (12), this Court held as under: - "12. Referring to these observations, Division Bench of this Court in Jagrup Singh case, (1981) 3 SCC 616 observed thus: (SCC p. 620, para 7) "These observations of Vivian Bose, J. have become locus classicus. Referring to these observations, Division Bench of this Court in Jagrup Singh case, (1981) 3 SCC 616 observed thus: (SCC p. 620, para 7) "These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case, AIR 1958 SC 465 for the applicability of Clause Thirdly is now ingrained in our legal system and has become part of the rule of law." The Division Bench also further held that the decision in Virsa Singh case AIR 1958 SC 465 has throughout been followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words Clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas the second part whether it was sufficient to cause death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The ‘intention’ and ‘knowledge’ of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words ‘intention’ and ‘knowledge’ and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. The framers of the Code designedly used the words ‘intention’ and ‘knowledge’ and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to ‘knowledge’, ‘intention’ requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end." 30. Reference may also be made to the latest pronouncement of Hon'ble the Apex Court in the case of Abdul Waheed v. State of Uttar Pradesh reported in JT 2015 (9) 444 wherein Hon'ble the Apex Court has observed in paragraph no. 14 as under: - "14. ................. The appellant and the accused party went to chabutra of Abbas Khan armed with pistol, guns and lathis which shows the intention of the appellant to commit the murder. An ordinary person is not presumed to know the precise location of the arteries in the human limbs. Therefore, if a stab with a knife or dagger, aimed at an arm or a leg, severs an artery and the injured man dies as a result, it may be reasonable to argue that the offence is not one of culpable homicide and that the assailant can only be presumed to have intended to cause hurt or grievous hurt with a dangerous weapon. The case in hand is quite different. When gun is used and the person who fires the gun must be presumed to have knowledge and intention that he is inflicting an injury which in the ordinary course of nature is sufficient to cause death and the offence is clearly murder. Having regard to the enmity and the weapon used, the courts below rightly held that the appellant-accused was guilty of committing the murder of Abbas Khan." (underlined by us) Hence, in our considered opinion, the offence would fall under Section 302 IPC and not under Section 304 Part I, IPC. 31. In the result, the appeal sans merit, deserves to be dismissed and is hereby dismissed. The appellant is in jail. 31. In the result, the appeal sans merit, deserves to be dismissed and is hereby dismissed. The appellant is in jail. He shall serve out the sentence as imposed by the learned trial court. 32. Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance. Appeal dismissed.