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2017 DIGILAW 620 (ALL)

AMOL SINGH @ BABA v. STATE OF U. P.

2017-02-22

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2017
Arvind Kumar Mishra-1, J. 1. Heard Shri Sangam Lal Kesarwani, learned counsel for the accused-appellant, Sri A.N. Mulla, Sri J.K. Upadhyay, Kumari Meena and Smt. Manu Thakur, brief holder for the State and perused the record of this appeal. 2. By way of instant Criminal Appeal challenge has been made to the validity and sustainability of the judgment and order of conviction dated 26.09.1995 passed by the VI Additional Sessions Judge, Kanpur Nagar in Sessions Trial No. 573 of 1992- State Vs. Amol Singh, arising out of case crime no.87 of 1992, under section 302 I.P.C, Police Station-Juhi, district-Kanpur Nagar, whereby the appellant has been sentenced to imprisonment for life. 3. The prosecution story, as unravelled by the first information report, reflects that informant-Somnath son of Mohan Lal- lodged written report at Police Station-Juhi, district-Kanpur Nagar on 19.3.1992 at 2.50 P.M. against appellant-Amol Singh @ Baba with the allegations that on 19.3.1992 at about 2:30 P.M., Holi song was being sung in front of house of Ram Shanker under Babool tree at Naya Purva; in the meanwhile, Amol Singh @ Baba s/o Raja Ram, r/o House No.133/716, came over there, asked Baboo Ram @ Binda (brother of informant) and the informant, not to sing the Holi song (Faag), whereupon, some altercation took place, between the informant and accused Amol Singh @ Baba, when Amol Singh @ Baba went to his home brought country-made gun and fired on Baboo Ram @ Binda in front of house of Sant Jyoti which hit him on his stomach. Amol's father-Raja Ram tried to intervene, but in his bid he also sustained gunshot injury on his hand. The incident was witnessed by Indra Bhan Singh, Mewa Lal and other persons of the locality. It was requested that report be lodged and appropriate action be taken. This written report is Ex. Ka.1. 4. Contents of aforesaid written report were noted down in the concerned check first information report at case crime no. 87 of 1992, under sections 307 I.P.C., Police Station-Juhi on 19.03.1992 at 2.50 P.M., which is Ext. Ka.-3. 5. On the basis of entries made in the Check FIR, a case was registered at Serial No.30 of concerned General Diary dated 19.03.1992 at aforesaid crime number under aforesaid section of IPC against accused person. The relevant GD entry is Exhibit Ka-4. 6. Ka.-3. 5. On the basis of entries made in the Check FIR, a case was registered at Serial No.30 of concerned General Diary dated 19.03.1992 at aforesaid crime number under aforesaid section of IPC against accused person. The relevant GD entry is Exhibit Ka-4. 6. Investigation of the case was entrusted to Ramanand Yadav, S.I.- P.W.5, who noted relevant entry of the check FIR and after noting the entries, proceeded to the spot, where he recorded statement of informant-Somnath and the witnesses-Indrabhan Singh, Mewa Lal; inspected the spot and collected one empty cartridge .12-bore and prepared a memo of the same- which is Ex.Ka.5. He also prepared site plan of the place of occurrence, which is Ext. Ka.6. 7. Record reflects that Baboo Ram @ Binda was taken to the hospital, Kanpur Nagar on 19.3.1992 where he was medically examined at 3:15 P.M., wherein the following injuries were noted on his person :- (1) Firearm wound of entry 3.5 cm. x 3 c.m. x depth not probed on mid-line of abdomen 1 cm above umbilicus, tattooing present. Adv. x-ray. (2) Abrasion 6 c.m. x 3 c.m. on right side abdomen 9 c.m. from injury no.1. (3) Multiple abrasion in area 10 c.m. x 2 c.m. on right side abdomen just above injury no.2. Opinion: Injury no.1 was kept under observation caused by firearm. Duration was noted to be fresh and it was suggested that injury no.2 and 3 are caused by friction. Duration was fresh. Patient was admitted. The injury report of Baboo Ram @ Binda is Exhibit Ka-7. 7. We further notice medical examination of injured Raja Ram- the father of the accused - on 19.3.1992 at the same hospital at 3:50 P.M., wherein the following injury was noted on his person:- (1) Firearm wound of entry 5 c.m. x 3 c.m. to bone deep on dorsum of left hand between thumb and index finger 4 c.m. from wrist joint, blackening and tattooing present. Fresh bleeding present. The Wound is gutter shaped extending to between III and IV finger. The wound of exit is 7 c.m. x 5 c.m. x bone deep. All stitching between the two wounds are lacerated. Advise: X-ray left hand of injury no.1 caused by firearm. Kept under observation. Duration was fresh and the patient was admitted. The injury report of injured Raja Ram is Exhibit Ka-8. 8. The wound of exit is 7 c.m. x 5 c.m. x bone deep. All stitching between the two wounds are lacerated. Advise: X-ray left hand of injury no.1 caused by firearm. Kept under observation. Duration was fresh and the patient was admitted. The injury report of injured Raja Ram is Exhibit Ka-8. 8. During course of investigation, the Investigating Officer took into possession clothes of injured-Baboo Ram @ Binda- on 21.3.1992 and prepared a memo of the same which is Ex.Ka.9. Statement of injured-Raja Ram was recorded by the Investigating Officer, he also recorded statement of victim and injured-Baboo Ram @ Binda on 20.3.1992. 9. Stream of events suggests that during course of treatment, Baboo Ram @ Binda died on 24.3.1992. The Investigating Officer received information of death of injured-Baboo Ram @ Binda and took steps for holding inquest of Baboo Ram @ Binda on 24.3.1992. It commenced at 11: 50 A.M. and completed at 12:30 P.M., the same day. In the opinion of the inquest witnesses and the Investigating Officer, it was thought proper to send the dead body for postmortem examination for ascertaining the real cause of death. The inquest report is Exhibit Ka-10. Therefore, relevant papers-Ex. Ka.11, Ex.Ka.12, Ex.Ka.13, Ex.Ka.14 and Ex.Ka.15- were prepared in the process for sending the dead body for autopsy at mortuary Kanpur Nagar. 10. Record further reflects that postmortem examination on the cadaver of the deceased-Baboo Ram @ Binda was conducted at the mortuary Kanpur Nagar, on 24.3.1992 at 2.15 P.M. by Dr. A.K. Gupta, who noted following ante mortem injuries on the body of the deceased:- 1. Stitched wound 19 cm. with 13 stitches on the mid line of abdomen 8 cm. below zeepes external. 2. Stitched wound 5 cm. with 3 stitches on the left side of abdomen 3 cm. from umbilicus. Omentum is coming out from the wound. 3. Stitched wound 2 cm. with one stitch with rubber drainage tube on the left side of lower abdomen 4 cm. below injury No.2. 11. In the opinion of the Doctor cause of death was due to 'shock and Septicemia' as a result of antemortem injuries. Postmortem report is Exhibit Ka-2. 12. Omentum is coming out from the wound. 3. Stitched wound 2 cm. with one stitch with rubber drainage tube on the left side of lower abdomen 4 cm. below injury No.2. 11. In the opinion of the Doctor cause of death was due to 'shock and Septicemia' as a result of antemortem injuries. Postmortem report is Exhibit Ka-2. 12. During the course of investigation, the Investigating Officer was transferred, therefore, it was taken over subsequently by Brijmohan Sharma P.W.6, who after receiving information regarding death of the deceased-Baboo Ram @ Binda, converted the case from Section 302 IPC to 307 IPC and also recorded relevant entry in the case diary and thereafter, this Investigating Officer was also transferred and the investigation was finally taken over by Sri S.L. Laur, S.H.O. Junhi-P. W.7-who recorded statement of the inquest witnesses and few other prosecution witnesses and after completing the investigation, filed charge-sheet against accused-Amol Singh @ Baba -which charge-sheet is Exhibit Ka-16. 13. Consequent upon filing of charge-sheet, the committal proceeding took place and the case was transferred to the court of Sessions Judge, where the Sessions Trial was numbered 573 of 1992 and it was transferred to the Court of VIII Additional Sessions Judge, Kanpur Nagar for conduction of trial and disposal. The learned trial Judge after hearing both the prosecution and the accused on point of charge was prima-facie satisfied with the case against the accused, accordingly, framed charge under Section 302 IPC, which was read over and explained to the accused, who denied the charge and opted for trial. 14. The prosecution was asked to adduce its testimony in support of the charge, whereupon, prosecution produced in all seven witnesses, whose, reference is sketched herein below:- Indra Bhan Singh P.W.1 is the eyewitness of the occurrence and scribe of the written report. He has testified about the same before the trial court. Somnath P.W.2 is the informant and eyewitness of the incident and he has also described about the incident. He is brother of deceased Baboo Ram. Dr. A.K. Gupta P.W.3 has conducted postmortem examination on the cadaver of the deceased-Baboo Ramand has proved the cause of death as well as the postmortem report- Exhibit Ka-2. Somnath P.W.2 is the informant and eyewitness of the incident and he has also described about the incident. He is brother of deceased Baboo Ram. Dr. A.K. Gupta P.W.3 has conducted postmortem examination on the cadaver of the deceased-Baboo Ramand has proved the cause of death as well as the postmortem report- Exhibit Ka-2. Ram Kishore Pandey, H.C., P.W.4 has made relevant entries in the concerned Check FIR and the concerned General Diary of date-19.3.1992 at police station-Juhi at Case Crime No.87 of 1992, under Section 307 IPC at 2.50 P.M. and has proved these facts before the trial court. Ramanand Yadav, S.I., P.W.5 is the Investigating Officer and he has conducted the investigation at initial stages of the case and has prepared various papers including the site plan, memo of recovery of empty cartridge from the spot and memo of clothes of the then injured-Baboo Ram @ Binda and has proved the process before the trial court. Brijmohan Sharma, S.H.O., P.W.6 is the subsequent Investigating Officer and he took over the investigation at the stage from where the case was converted from 307 IPC to one under Section 302 IPC, after Baboo Ram expired in the morning of 24.3.1992. He made relevant note of such charge in the relevant case diary and has proved the process before the trial court. S.L. Laur, P.W.7 is the IIIrd Investigating Officer of this case, who conducted a little part of the investigation after his posting as S.H.O. of Police Station-Juhi on 17.04.1992, however, he has given finality to the already going on investigation and has filed the charge-sheet, Exhibit Ka-16, against the accused. 15. Except as above, no other testimony, whatsoever, was adduced by the prosecution, therefore, evidence for the prosecution was closed and statement of the accused recorded under Section 313 Cr.P.C., wherein, he termed his implication false on account of enmity and he has specifically stated that on the date of occurrence, he went to ask for his money from Somnath. Somnath was, at that time, intoxicated. He did not give the money and along with Binda, Indra Bhan and Birendra assaulted him, when people intervened. He scampered to his home, whereupon, the aforesaid four persons bearing lathi and danda in their hands, arrived at his home. Somnath was, at that time, intoxicated. He did not give the money and along with Binda, Indra Bhan and Birendra assaulted him, when people intervened. He scampered to his home, whereupon, the aforesaid four persons bearing lathi and danda in their hands, arrived at his home. His father tried to reconcile them, but they fired on his father and accused (Binda, Indra Bhan, Somnath) also exhorted each other to kill him. His father sustained injuries. The shot so fired by Birendra hit Raja Ram on his palm and went through and through and hit Baboo Ram. On hearing the sound, he also arrived on the spot, whereupon, he was chased by the assailants, then, he fled away from the spot for his protection. He has been falsely implicated in this case. 16. The defence also led ocular testimony of Raja Ram D.W.1- the father of the accused-who has testified about the fact that he was shot by Birendra in a manner that the shot after hitting his palm, went through and through and hit Baboo Ram @ Binda. The defence also examined Lallan D.W.2. He has also testified about the fact that on the date of the occurrence, he saw Brinda Prasad quarreling with Raja Ram (D.W.1) and some altercation going on between Brinda Prasad and Raja Ram and Brinda Prasad exhorted others to fire on Raja Ram. 17. Except as above, no other testimony was adduced on behalf of the defence, therefore, evidence for the defence was also closed and the case was posted for argument-pros and cons. 18. The trial court after hearing both the sides on the merit of the case and after evaluating the evidence, facts and circumstances of the case, convicted the accused for charge under Section 302 IPC and passed sentence of imprisonment for life against him, which became the proximate cause for preferring this appeal. 19. It has been vehemently contended on behalf of the appellant that the prosecution witnesses are partisan witnesses and they have not seen the occurrence. In fact, it was the informant side, which assaulted the accused side and after causing injury on the father of the accused-Raja Ram, and fled away from the spot, after realizing that the shot was fired on Raja Ram (the father of the accused) has hit Baboo Ram @ Binda. In fact, it was the informant side, which assaulted the accused side and after causing injury on the father of the accused-Raja Ram, and fled away from the spot, after realizing that the shot was fired on Raja Ram (the father of the accused) has hit Baboo Ram @ Binda. This case is a device to implicate falsely the accused-appellant, whereas the accused-appellant is innocent. There was no motive and occasion for causing any such offence and the motive imputed for commission of the offence is nothing but a false suggestion and hypothetical. The prosecution witnesses have not proved the incident beyond reasonable doubt. Lots of inconsistencies pervade their testimony, which is inherently and intrinsically contradictory in material particulars. Testimony of prosecution witnesses of fact is, on the whole, unworthy of credit and the witnesses are none other than the close relatives of the deceased. No independent witness has been produced. The incident is not corroborated by any independent testimony. Accused had no motive for committing the crime. 20. Per contra, learned AGA has retorted to aforesaid arguments/contentions and engaged attention of the Court to specific parts of testimony of prosecution witnesses of facts- Indra Bhan Singh P.W.1 and Somnath P.W.2-and claimed that their testimony on the whole is consistent, innocuous and unambiguous on point of occurrence. No specific cause has been suggested, as the reason for falsely implicating the accused. Obviously, the incident was caused by the accused and his father-Raja Ram intervened at a stage when the accused was in his bid to fire second time on the informant side, but because of swift intervention of Raja Ram, the shot hit on his palm-through and through. This particular aspect is reflected in the statement of Raja Ram himself recorded by the Investigating Officer during the course of investigation. Not a single complaint, written or oral, was ever made either by the accused or by his father against the informant side to any authority which may reflect on the possibility of any such suggested occurrence-claimed by the accused. The prosecution is required to prove its case beyond reasonable doubt and the case has been proved beyond reasonable doubt. Authenticity and creditworthiness of the prosecution witnesses of fact is founded on solid rock, untravelled by any virus. The prosecution is required to prove its case beyond reasonable doubt and the case has been proved beyond reasonable doubt. Authenticity and creditworthiness of the prosecution witnesses of fact is founded on solid rock, untravelled by any virus. The testimony of prosecution witnesses pertaining to the causing of gunshot wound on Babu Ram is fair enough for recording conviction against the accused. Testimony produced by the prosecution inspires confidence. There are no such contradictions in the testimony of prosecution witnesses which may brush aside, the case of the prosecution. Not a single material contradiction occurred in the testimony of both the witnesses of fact-Indra Bhan Singh P.W.1 and Somnath P.W.2. The claim of the defence that fire was shot by Birendra on Raja Ram is not founded on any basis and cannot even be speculated, because the same does not gets support from any corner and any reliable source. Statement of Raja Ram itself, previously recorded by the Investigating Officer, exposes falsity of the claim made by the accused that Birendra fired on Raja Ram. The prosecution has established the charge beyond all reasonable doubt against the accused and the trial court was justified in convicting the accused and awarding the sentence of life imprisonment. 21. We have also considered the rival submissions. 22. On the basis of the allegations made in the first information report and on the basis of the rival contentions, the moot point that arises for determination of this appeal pertains to fact whether the prosecution was able to prove and establish its case against the accused-appellant beyond any reasonable doubt? 23. On the very onset, on perusal of contents of first information report, we notice that some Holi songs were being sung on the occasion of holi by the informant side on 19.3.1992 around 2.30 P.M. in front of house of Ram Shanker under Babool tree, when accused Amol @ Baba arrived on the spot and objected to the singing song, whereupon, some altercation took place and the accused-appellant Amol @ Baba went to his home brought country-made gun and in front of house of Sant Jyoti fired on informant's brother-Baboo Ram @ Binda; in the meanwhile Raja Ram-father of the accused-also asked him not to fire on Baboo Ram @ Binda, but accused Amol @ Baba insisted on firing and the fire hit on the stomach of Baboo Ram @ Binda. In the scuffle, the fire also hit Raja Ram (father of accused) on his hand. Incident was witnessed by Indra Bhan, Mewa Lal and other persons of the locality. 24. In the backdrop of aforesaid factual allegations, we have to scrutinize testimony of the prosecution witnesses, who claim themselves to have been present on the spot and witnessed the incident. 25. Here, we have before us two witnesses of fact; but before proceeding further with the evidenciary value of their testimony, it would be relevant and appropriate to take note of fact that Baboo Ram @ Binda after sustaining gunshot injury remained alive for four days till 24.03.1992 and he died in the morning of 24.03.1992. It is also fact that no report, whatsoever or complaint was made by Raja Ram against the informant side to any authority for causing gunshot injury on his hand. 26. Indra Bhan Singh P.W.1 claims himself to have been present on the spot and he is also scribe of the written report, Exhibit Ka-1. Somnath has got himself examined as P.W.2. As per testimony of Indra Bhan Singh P.W.1 and Somnath P.W.2, detailed description of the incident has been given in consistent manner that it was on 19.03.1992 around 2.30 P.M. they were singing Holi song under Babool tree in front of house of Ram Shanker. The festivity was being attended by Somnath, Babu Ram, Mewa Lal and other neighbours, when Amol Singh @ Baba abusing them, appeared on the spot and asked them not to sing the song. They (P.W.1 and P.W.2) told him that it being Holi festival, let the song go on. At this, the accused gripped collar of Somnath and Baboo Ram @ Binda asked him not to do so, whereupon, the accused freed Somnath and began to assault Baboo Ram @ Binda. The persons present over there intervened, whereupon, the accused scampered towards his house, and came back with country-made gun and fired on Baboo Ram @ Binda, in front of house of Sant Jyoti Pal, which fire hit him on his stomach. While he was attempting second fire by his gun, his father Raja Ram intercepted and gripped him, due to which, the fire hit Raja Ram on his hand. While he was attempting second fire by his gun, his father Raja Ram intercepted and gripped him, due to which, the fire hit Raja Ram on his hand. Thereafter this witness-Indra Bhan Singh P.W.1-along with Somnath P.W.2 went to the Juhi Police Station and they asked wife of Baboo Ram @ Binda to take Baboo Ram @ Binda to the police station. The report was dictated by Somnath and it was scribed by this witness (P.W.2) and thereafter Somnath made his signature in the written report and the report was lodged. 27. Now, we may also scrutinize testimony of Somnath P.W.2-the informant. He has virtually dittoed the testimony of Indra Bhan Singh P.W.1 to the extent that Holi song was going on when Amol @ Babu objected to the same and when asked not to raise objection, as it was Holi festival, he was enraged and beat up Somnath and asked not to indulge in such act. He went back home and the witnesses started moving away and when they arrived in front of house of Santjyoti, then accused Amol Singh @ Baba appeared on the scene and fired on Baboo Ram @ Binda, which fire hit him on his stomach. The accused was trying to fire again with his gun when he was intercepted by his father-Raja Ram and in a bid to take the gun in his control the shot went off, hitting on his hand, thus causing injury on his palm. 28. The ocular testimony, when compared with the description of occurrence, as contained in the first information report, unequivocally proves presence of the prosecution witnesses on the spot and also proves the incident being caused by the accused by using country-made gun. The testimony on the whole is clinching and inspiring confidence. 29. Here, we come across testimony of the defence witnesses and particularly that of Raja Ram D.W.1-the injured-who has testified in his examination-in-chief that it was around 2.45 P.M., he was sitting at his door, when Baboo Lal @ Binda, Somnath @ Pakauri and Birendra etc. were chasing Amol Singh @ Baba towards his home. He (Raja Ram) got his son inside the house and inquired from them about the matter, whereupon, Baboo Lal @ Binda said to him that in case, he does not take out his son from the house, he will be shot at. were chasing Amol Singh @ Baba towards his home. He (Raja Ram) got his son inside the house and inquired from them about the matter, whereupon, Baboo Lal @ Binda said to him that in case, he does not take out his son from the house, he will be shot at. When asked not to do so, Birendra @ Baboo Ram fired on him, which shot went through and through his palm and hit Baboo Ram @ Binda. He (Raja Ram) went to lodge his report at the police station, but his report was not lodged by the police. 30. This testimony (of D.W.1) tell us a different story and on a totally different nomenclature than the story described by the prosecution witnesses P.W.1 and P.W.2 and contained in the first information report. Not only this, but the defence has also produced Lallan D.W.2, who is also witness of fact that Brinda Prasad was seem scuffling with Raja Ram D.W.1 and had gripped his waist. Brinda Prasad exhorted to shoot him (Raja Ram), whereupon, Raja Ram was shot at and the shot after hitting through and through the hand (palm) of Raja Ram, hit Baboo Ram. However, Ramanand Yadav the Investigating Officer-P.W.5, who has been examined by the prosecution, has testified to the extent that Raja Ram was also injured in the incident and his medical examination was also conducted after letter was written to the concerned hospital. He has testified on page34 of the paper book that Raja Ram had given statement that some altercation took place between his son and Baboo Ram around 2.30 P.M., whereupon shot was fired on Baboo Ram, which hit him on his stomach and in the process Amol Singh @ Baba tried to fire again, whereupon, he (Raja Ram) intervened and tried to handle the situation, and in the process the shot hit him. This incident took place in front of house of Sant Jyoti Pal. This statement is of vital importance, in view of fact that the entire matter was investigated into and no complaint, whatsoever, was made to any authority about any such incident and against the Investigating Officer that he did not conduct fair investigation, as was required of him and he tried to hush up the matter. This statement is of vital importance, in view of fact that the entire matter was investigated into and no complaint, whatsoever, was made to any authority about any such incident and against the Investigating Officer that he did not conduct fair investigation, as was required of him and he tried to hush up the matter. When examined, Raja Ram D.W.1 has testified to the ambit that he did not make any complaint to any higher authority regarding the incident in which he sustained injury. This particular aspect, in remaining passive, is in itself suffice to guide us not only to infer about the incident but also to conclude that the story advanced by Raja Ram is virtually a cover up gesture to conceal the real truth, however, the facts and circumstances, vis-a-vis, testimony on record, point out something of different happening than the one claimed by Raja Ram. When testimony of Raja Ram D.W.1 and Lallan D.W.2 is compared with the testimony of the prosecution witnesses of fact-Indra Bhan Singh P.W.1 and Somnath P.W.2, respectively, we unambiguously see that their testimony carries element of truth and is based on facts and circumstances of the case and the place of occurrence is also very much proved by their testimony; whereas there is nothing on record, which may reflect on the claim of the defence that the incident took place in front of house of Raja Ram, instead the incident took place in front of house of Sant Jyoti Pal and this aspect of the case also gets strengthened from the perusal of the site plan, Exhibit Ka-6, where the incident has been depicted to have taken place in front of house of Sant Jyoti Pal. That way, the defence version and suggestion regarding incident being caused by the informant side stands falsified and their testimony in that regard is on whole unreliable. That way, the defence version and suggestion regarding incident being caused by the informant side stands falsified and their testimony in that regard is on whole unreliable. On the contrary, the testimony put forth by the prosecution witnesses of fact and particularly the Indra Bhan Singh P.W.1 and Somnath P.W.2 holds the ground firmly and carries weight and there is no reason to discard the same and we are of conspicuous view that the testimony given by Indra Bhan Singh P.W.1 and Somnath P.W.2 regarding the manner and style of the occurrence is worth believing as the testimony is consistent, clinching and sans improvement and embellishments Therefore, the incident has been proved reasonably in its particular manner and style described in the first information report and testified by the prosecution witnesses. 31. Other aspects of the case are worth noticing that the presence of the accused on the spot is admitted, when counter version was raised by him. That way, the incident of firing is also admitted to the defence itself, when the accused in his statement recorded under Section 313 Cr.P.C. has taken the same stand regarding the manner and style of the incident, which was taken by his father Raja Ram D.W.1. We have already discussed about lack of enormity of impression reflected from the testimony of Raja Ram D.W.1 and we have already noticed that his testimony, on the whole, is not clinching and is wholly unreliable in so far as it relates to the manner and style of the incident and the place of the incident. 32. No doubt, we could have acted upon such hypothesis and imagination, as suggested by the accused and his father Raja Ram, if we would have before us some independent corroboration either from facts and the attended circumstances or from the material collected during the course of investigation of this case; but nothing of that sort ever surfaced to give thrust to any such proposal. In such particular scenario it would be unwise and unsafe to place reliance on the counter version of the defence that the incident was caused by the informant side. The Investigating Officer has also proved the place of occurrence-site plan-Ex. Ka.-6. In such particular scenario it would be unwise and unsafe to place reliance on the counter version of the defence that the incident was caused by the informant side. The Investigating Officer has also proved the place of occurrence-site plan-Ex. Ka.-6. In this site plan, place 'A' has been described as the place where the holi festival song was being sung; place 'B' is the place where Baboo Lal @ Binda was shot at; place 'C' is the place from where the shot was fired; place 'D' is the place from where father of the accused (Raja Ram) tried to intervene in the scuffle and due to which he sustained gunshot injury on his hand; place 'E' is the place from where empty cartridge was recovered. Thus, all these specific spots and things prove, out and out, the place of occurrence which further gets strengthened with the ocular testimony of the prosecution witnesses of fact and the description of the incident contained in the first information report. Not only this, the Investigating Officer has also proved the investigation and there is no material deviation in the statement of the prosecution witnesses recorded during course of investigation and the testimony given before the trial court. 33. But it has been specifically urged on behalf of the accused that the incident assuming it to have been caused by the accused, shows that it was outcome of heat of passion. There was no particular intention to cause death of Baboo Ram @ Binda as such and no intention for causing death of Baboo Ram @ Binda can be imputed against the accused. 34. We may observe that the seat of injury on the body of Baboo Ram @ Binda was stomach and the incident was caused around 2:30 P.M. on 19.3.1992 and the injured/deceased Baboo Ram @ Binda remained confined to treatment from 19.3.1992 up to 24.3.1992 and he died because of septicaemia. Our attention was invited to the cause of death shown in the postmortem examination report, wherein, Dr. A.K. Gupta has specifically noted that cause of death was shock and septicaemia as result of antemortem injuries. Although, he has further stated in his cross-examination on page 30 of the paper book that septicaemia means formation of puss in blood and this element could have been checked by having recourse to proper medicine. A.K. Gupta has specifically noted that cause of death was shock and septicaemia as result of antemortem injuries. Although, he has further stated in his cross-examination on page 30 of the paper book that septicaemia means formation of puss in blood and this element could have been checked by having recourse to proper medicine. It means the overall outcome of the offence was result of gunshot wound and post-incidental development. Defence claims that this particular aspect was ignored by the trial court. 35. In this factual background, the argument floated by the defence carries force, because the circumstances are self-evident and are reflecting that the deceased survived for 4-5 days after the incident (on 19.3.1992) and he died in the morning of 24.3.1992. Postmortem examination was conducted by Dr. A.K. Gupta-P.W.3-in the afternoon of 24.3.1992. 36. The learned counsel for the appellant has vehemently claimed that the case of the accused may be treated to be one falling and covered under part II of Section 304 IPC. 37. For better understanding and comprehension, we may look to the gist and entirety of the mandate contained under Section 304 IPC as extracted herein below: 304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. 38. Perusal of above Section 304 IPC indicates, in all probability, that Section 304 IPC has been ornated into two parts. First part deals with the cases where death is homicidal and intention to cause death was there on the part of the accused or intention can be gathered from the very act/offence committed. If act of causing death has intention at its back up, then, the offence committed would fall squarely under part I of Section 304 IPC. First part deals with the cases where death is homicidal and intention to cause death was there on the part of the accused or intention can be gathered from the very act/offence committed. If act of causing death has intention at its back up, then, the offence committed would fall squarely under part I of Section 304 IPC. The second part deals with cases which are based on knowledge that death may occur or causing of such bodily injury as is likely to cause death. 39. In so far as aforesaid claim made by the defence is concerned, we may observe that bare perusal of Section 304 IPC makes it explicit that 304 IPC provides two specific aspects and the first part is restricted to those cases where intention to kill outweighs the proportion of mere knowledge required to commit the crime. Thus, part I and part II of Section 304 IPC have been differentiated on the touchstone of intention and knowledge i.e.; lack of intention. 40. Here, in the case in hand, the manner and style of the incident has been consistently proved that after first shot was fired, it hit on the stomach of Baboo Ram @ Binda and he was injured. No doubt, the death did not take place immediately, but testimony establishes that the accused tried to shoot again, but the attempt failed partially because of the intervention of Raja Ram-father of the accused. Therefore, the intention to kill was apparent. But we are also conscious of fact that the very genesis of the incident was sudden and outcome of heat of passion. There was no long-drawn enmity acting as a motivating force for committing the offence, therefore, we can squarely place case of the accused not under Section 302 IPC but under Section 304 part I IPC. 41. Here, in this case, the entirety of the manner and style of the occurrence is suggestive of and conducive to the fact of intention on the part of the accused to commit the very crime-subject to our scrutiny. 41. Here, in this case, the entirety of the manner and style of the occurrence is suggestive of and conducive to the fact of intention on the part of the accused to commit the very crime-subject to our scrutiny. Therefore, we are of unanimous view that the finding of conviction recorded under Section 302 IPC was not justified under facts and circumstances of the case and the trial court did not consider particular aspects of this case and convicted the accused under Section 302 IPC, which finding of conviction is hereby altered and modified from Section 302 IPC to one under Part I of Section 304 IPC. 42. Now, the quantum of sentence has got to be considered as to what sentence would be appropriate. Section 304(1) IPC prescribes two types of sentences the one in the nature of extreme penalty to the extent of life imprisonment and the another option prescribes imprisonment of either description for a term which may extend up to 10 years coupled with fine. 43. Accordingly, the point of sentencing will be considered by us at this stage. We have already discussed the attendant facts and circumstances of the case qua the evidence on record and we are convinced that the incident was in fact outcome of passionate and heated discussion, which followed on account of insistence of the accused to stop the Holi festivity song. Nothing more nothing less was the motivating force, which can be ascribed, as the cause of the incident. No doubt, Baboo Ram @ Binda sustained only one gunshot injury on his stomach and Dr. A.K. Gupta (P.W.3), who conducted postmortem examination, has also noted these injuries in form of stitched wounds extending in different areas of the abdomen, but these three stitched wounds are outcome of one gunshot. 44. We have also considered the wholesomeness of the crime, motive behind the crime and the enormity of the crime, and in our considered opinion, we find it just and proper to award a sentence of rigorous imprisonment for 10 years coupled with fine Rs.5,000/- and in case of default, the accused-appellant would have to suffer additional imprisonment for six months' period, as that would meet the ends of justice. 45. 45. Accordingly, in order to meet the ends of justice, the impugned conviction and sentence imposed by the trial court stands modified and confined to Section 304 part I IPC, as above, and the judgment and order of the trial court dated 26.09.1995 passed by the VI Additional Sessions Judge, Kanpur Nagar in Sessions Trial No. 573 of 1992-State Vs. Amol Singh, arising out of case crime no.87 of 1992, under section 302 I.P.C, Police Station-Juhi, district-Kanpur Nagar, stands modified to that extent and the appeal is allowed partly, accordingly. 46. In this case, the accused-appellant-Amol Singh @ Baba is on bail and he has suffered imprisonment for little periods both during course of the trial and during the pendency of this appeal and the entire sentence pronounced by us, as herein above has not been suffered as yet, as the appellant had been admitted to bail by the Appellate Court in April 1996. Personal bonds and bail bonds of the Accused-appellant are cancelled. He be taken into custody forthwith to serve out the remaining part of his sentence. 47. Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.