Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 1635 (RAJ)

Lal Chand v. State of Rajasthan Through The P. P.

2018-08-03

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2018
JUDGMENT Mohammad Rafiq, J. Challenge in both the criminal appeals filed under Section 374 of the Code of Criminal Procedure on behalf of accused appellants, namely, Lal Chand (Appeal No. 385/2015) and Mahaveer (Appeal No. 357/2015) has been made to the judgment and order dated 17.04.2015 passed by the Court of Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Cases, Baran, in Sessions Case No. 36/2010 arising out of F.I.R. No. 102/2010, Police Station Anta, District Baran for the offence under Sections 307, 34 of the Indian Penal Code, Section 3(ii)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'the Act of 1989') and Section 3/25 of the Arms Act, whereby the trial court convicted and sentenced the accused-appellants in the following manner:- Accused-appellant Conviction under Section Sentence Chand S/o Jagannath 302 of the IPC To undergo life imprisonment with fine of Rs. 5000/- and in default of payment of fine, to further undergo additional three months simple imprisonment 3(ii)(v) of the Act of 1989 To undergo seven years rigorous imprisonment with fine of Rs. 1000/-, and in default of payment of fine, to further undergo additional one months simple imprisonment Mahaveer S/o Raghunath 302/34 of the IPC To undergo life imprisonment with fine of Rs. 5000/- and in default of payment of fine, to further undergo additional three months simple imprisonment 3(ii)(v) of the Act of 1989 To undergo seven years rigorous imprisonment with fine of Rs. 1000/-, and in default of payment of fine, to further undergo additional one months simple imprisonment 2. Facts giving rise to these appeals are that one Ram Kumar (PW-24), Assistant Sub Inspector, Police Station, Anta, recorded a 'parcha bayan' (Exhibit P-21) of one Omprakash Meena on 02.05.2010 at 10:45 PM, and on that basis F.I.R. No.102/2010 (Exhibit P-22) was recorded at Police Station Anta, District Baran, for the offence under Sections 307, 34 IPC and Section 3(ii)(v) of the Act of 1989 in connection with an occurrence alleged to have taken place on 02.05.2010 at 07:55 PM. As per the 'parcha bayan', Omprakash Meena, the complainant, stated that he was resident of Lisadi and was serving as a salesman on the liquor shop situated in village of Lisadi'. On that date at about 07:55 PM, one Mahaveer Dhakad R/o Bamuliya, came there. He was drunk. As per the 'parcha bayan', Omprakash Meena, the complainant, stated that he was resident of Lisadi and was serving as a salesman on the liquor shop situated in village of Lisadi'. On that date at about 07:55 PM, one Mahaveer Dhakad R/o Bamuliya, came there. He was drunk. Mahaveer demanded from the complainant an English wine of 'officers choice'. The complainant told him that by that time the shop was closed. Upon this, Mahaveer called Lal Chand Dhakad, who reached there in half-an-hour. Jagannath also came there with Mahaveer. Jagannath had 'jodala' in his hand and Lal Chand was armed with a 'katta' (country made gun). Lal Chand opened fire from 'katta', which hit on the right side of abdomen of complainant Omprakash, as a result of which blood started oozing out of his abdomen. It was further stated therein that Madan Mohan S/o Sitaram Meena and Jodhraj S/o Ramkalyan, both residents of Bamuliya, were also present, and they witnessed the occurrence. Mangilal S/o Ramkishan Meena brought him and got admitted in the hospital. It was further stated that had Mangilal not brought him, he would have definitely died. It may be significant to note that Omprakash Meena during his treatment died on 22.05.2010 due to septicemia and cardiac and therefore, the police added the offence punishable under Section 302 of the IPC. A charge-sheet against the accused-appellants was filed for the offence under Section 302 read with Section 34 of the IPC, Section 3(1)(ii)(v) of the Act of 1989 and Section 3/25 of the Arms Act. Since the case was triable by the Court of Sessions, it was made over to the Court of Special Judge, SC/ST (Prevention of Atrocities) Cases, Baran. Charges against the accused for the aforesaid offences were framed, which they denied and claimed trial. The prosecution produced as many as 28 witnesses and 26 exhibits to substantiate its case. The defence though produced 5 exhibits but did not produce any witness. The trial court convicted and sentenced the accused-appellants in the manner indicated above. Hence, these two separate appeals have been filed on behalf of the accused-appellants. 3. Mr. Arvind Kumar Gupta, learned Senior Counsel for the accused-appellants, argued that the trial court has erred in law in recording the findings of conviction of the accused-appellants, which are contrary to the material placed on record and the same are based on surmises and conjectures. Hence, these two separate appeals have been filed on behalf of the accused-appellants. 3. Mr. Arvind Kumar Gupta, learned Senior Counsel for the accused-appellants, argued that the trial court has erred in law in recording the findings of conviction of the accused-appellants, which are contrary to the material placed on record and the same are based on surmises and conjectures. The 'parcha bayan' of Omprakash is said to be recorded by Ram Kumar (PW-24) on 02.05.2010 at 10:45 PM and on that basis the F.I.R. was registered by him on that date at 11:00 PM, yet the F.I.R. reached the area Magistrate at Anta, District Baran, on 04.05.2010 at 10:30 AM with a delay of two days. If he was taken to a private hospital for treatment, record of the same has not been produced and therefore, an adverse inference ought to have been drawn against the prosecution that the deceased had died due to lack of proper treatment. This clearly proves that the F.I.R. is a concocted and fabricated document and that the allegations in the FIR are nothing but an afterthought. It is evident from the statement of Ram Kumar (PW-24) that no such 'parcha bayan' was given by Omprakash and rather he himself wrote the story afterwards, owing to which the registration of the FIR was delayed and the same reached the area Magistrate belatedly on 04.05.2010 at 10:30 AM. Ram Kumar (PW-24) has, in his cross-examination, admitted that he had arrested Jodhraj and Madan Mohan in the cross-case registered at the instance of the accused party. He also admitted that he found the car of accused Mahaveer in burnt and broken condition in the river adjoining the place of incident. Mukhtyar Ali (PW-10) has admitted that he had taken the photographs of the car as well as the burnt motorcycle vide Exhibit P-30 in the cross-case. The car was damaged. 4. Learned Senior Counsel argued that there is no witness to support the factum of recording of the 'parcha bayan' by Ram Kumar (PW-24). Ram Kumar (PW-24) has not obtained any certificate of fitness from the doctor, even though he admitted that the doctor was present. The car was damaged. 4. Learned Senior Counsel argued that there is no witness to support the factum of recording of the 'parcha bayan' by Ram Kumar (PW-24). Ram Kumar (PW-24) has not obtained any certificate of fitness from the doctor, even though he admitted that the doctor was present. It is also not in dispute that there was no witness present at the time of recording of the 'parcha bayan', but Ram Kumar (PW-24) has stated that first of all he heard all what was stated by Omprakash Meena and only thereafter he transcribed the 'parcha bayan' on his own. Therefore, no reliance can be placed on such 'parcha bayan'. The investigation conducted on such 'parcha bayan' would be tainted and conviction on that basis is absolutely illegal. Besides this, the 'parcha bayan' has not been recorded in terms of the provisions of Rule 6.22 of the Rajasthan Police Rules. The trial court, therefore, has erred in law in placing reliance on the 'parcha bayan. 5. Mr. Arvind Kumar Gupta, learned Senior Counsel, argued that if the statement of Hajari Lal (PW-21) is read along-with the statement of Ram Kumar (PW-24), then it becomes clear that Hajari Lal (PW-21), (the then S.H.O., Police Station Anta), that Ram Kumar (PW-24) was not sent to the hospital to record the 'parcha bayan'. It was Ram Kumar (PW-24) himself who prepared the concocted document. The F.I.R. is, therefore, ante-dated and ante-time document and cannot be held to have been recorded on the basis of the 'parcha bayan' and, therefore, the very basis of the initiation of prosecution is doubtful. It is well settled that the prosecution cannot come with two stories. If the charge-sheet is taken into consideration along-with the order of framing of the charges, then it is clear that the case of the prosecution is that co-accused Mahaveer asked for English wine from the deceased, who refused to give the same on the ground that the shop had been closed at 07:55 PM. It is alleged that then co-accused Mahaveer made a telephonic call from his mobile and thereafter accused-appellant Lal Chand and Jagannath came armed with country-made-gun and 'jodala' and opened fire at Omprakash, who received injuries thereby. Sonu (PW-3) has stated that Jagannath pointed the gun at Mukut Bihari and then Pappu snatched the same, which was taken by Omprakash. It is alleged that then co-accused Mahaveer made a telephonic call from his mobile and thereafter accused-appellant Lal Chand and Jagannath came armed with country-made-gun and 'jodala' and opened fire at Omprakash, who received injuries thereby. Sonu (PW-3) has stated that Jagannath pointed the gun at Mukut Bihari and then Pappu snatched the same, which was taken by Omprakash. It was then that accused-appellant Lal Chand allegedly opened fire from the gun, which hit Omprakash. But, in cross-examination, this witness stated that co-accused Mahaveer came in a car and gave a horn for removing the tractor, which was standing in the middle of the road and thereafter Jodhraj and co-accused Mahaveer started to quarrel with each other. Co-accused Mahaveer abused Jodhraj, Mukut, Ram Prasad and Omprakash. Then a scuffle ensued. Afterwards the car was thrown into the river. After hearing the cry raised by co-accused Mahaveer, accused-appellant Lal Chand and Jagannath came from the opposite side of canal. Sonu (PW-3) has further stated that he was stating about the fact of opening of fire by accused-appellant Lal Chand, which hit Omprakash, as per narration by Omprakash. It is argued that if the statements of Madan Mohan (PW-12), Jodhraj (PW-13), Mangilal (PW-25) and Puran (PW-27) are taken into consideration then the story line of the prosecution becomes doubtful. The trial court has completely omitted to consider this aspect of the matter that the prosecution has changed the very genesis of the occurrence and failed to prove the facts. Thus, the conviction of the accused-appellants is bad in law. 6. It is argued that there is no evidence that co-accused Mahaveer gave a call on phone to accused-appellant Lal Chand as no call details were obtained by the Investigating Officer nor have been produced in the court and therefore adverse inference ought to be drawn against the prosecution that it did not find any straight evidence to connect the story that co-accused Mahaveer gave a call on mobile to co-accused Lal Chand in terms of Section 114 of the Indian Evidence Act. 7. It is argued that co-accused Mahaveer was beaten and after turning the car of co-accused Mahaveer the same was thrown in the canal. The accused-party also lodged cross F.I.R. and that cross-case was pending but unfortunately the trial court separated both the trials and rendered the judgment in the present case without deciding the cross-case. 7. It is argued that co-accused Mahaveer was beaten and after turning the car of co-accused Mahaveer the same was thrown in the canal. The accused-party also lodged cross F.I.R. and that cross-case was pending but unfortunately the trial court separated both the trials and rendered the judgment in the present case without deciding the cross-case. Accused-appellant Lal Chand and Jagannath allegedly came with a gun and 'jodala' respectively. If what the prosecution has alleged that Lal Chand armed with 'katta' and Jagannath armed with 'jodala' came there, then there was no occasion for them to damage the car of co-accused Mahaveer and throwing the same in the canal. This clearly shows that the incident has not taken place in the manner narrated by the prosecution. It becomes quite clear from the statement of Sonu (PW-3) that some hot-exchange of words took place between Mahaveer and Omprakash on the road when Mahaveer was in his car and his car was damaged and thrown into the river of the canal. Sonu (PW-3) has also stated that Lal Chand and his father Jagannath came after hearing the noise of Mahaveer. This witness has not been declared hostile at the instance of the prosecution and therefore, the prosecution is fully bound by his testimony. This witness has totally demonstrated the case of the prosecution and rather indirectly supported the case of the defence. 8. Mr. Arvind Kumar Gupta, learned Senior Counsel, submitted that statement of Madan Mohan (PW-12) has not been properly appreciated by the trial court. The presence of this witness on the place of occurrence at the time and date of occurrence is highly doubtful. It is undoubtedly true that the cross-case against the complainant party for the offence under Sections 147, 149, 341, 323, 325, 435 and 427 of the IPC is pending but he has admitted that this case is pending trial against them on the basis of police report submitted by accused Mahaveer. From his statement, it becomes clear that the allegation that co-accused Mahaveer asked for English wine of 'officers choice' is not correct. The statement of this witness has numerous contradictions and improvements, which has been completely ignored by the trial court. This witness is not trustworthy at all. 9. It is argued that the trial court has not properly considered the statement of Jodhraj (PW-13). His testimony is full of contradictions. The statement of this witness has numerous contradictions and improvements, which has been completely ignored by the trial court. This witness is not trustworthy at all. 9. It is argued that the trial court has not properly considered the statement of Jodhraj (PW-13). His testimony is full of contradictions. He has admitted that a cross-case was registered at the instance of accused-appellant Mahaveer. He has thereby corroborated the defence story of the accused-appellant Mahaveer. From what he has stated, it is evident that no such occurrence has taken place as disclosed by the prosecution. This witness has thus changed the genesis of the occurrence in the manner in which the occurrence took place. This story indicates that the dispute arose on the question of parking of the tractor on the road and blocking the path of others. He has stated that Omprakash Meena himself informed the police on phone. He has thereby falsified the case of the prosecution emanated from the 'parcha bayan' of Omprakash Meena. 10. Learned Senior Counsel argued that appellant Mahaveer was beaten by deceased Omprakash Meena and others when he asked them to remove the tractor from the road to give clearance for passing of his car, however, Omprakash and his companions burnt his car and threw the same in the canal. It is submitted that Lal Chand and Jagannath came on a motorcycle. The motorcycle was found at the place of incident in a burnt condition and the car of Mahaveer was also found in a damaged and burnt condition in the canal which also provided corroboration. The photographs of the burnt motorcycle are available on record as Exhibit P-7 to Exhibit P-14 proved by Mukhtyar Ali (PW-10), which indicates that both the vehicles were burnt almost completely. Admittedly there was no previous enmity between the parties especially with deceased Omprakash Meena. The statement of this witness clearly shows that the incident took place all of a sudden on the spur of moment without any premeditation. Puran (PW-27) has not been named as a witness in the F.I.R. and his presence has not been shown. He is therefore a planted witness. He has also changed the story as per the convenience of the prosecution. It is clear from his statement that the accused-appellants have been falsely implicated. Puran (PW-27) has not been named as a witness in the F.I.R. and his presence has not been shown. He is therefore a planted witness. He has also changed the story as per the convenience of the prosecution. It is clear from his statement that the accused-appellants have been falsely implicated. Even this witness has admitted that the dispute arose owing to closure of path way due to parking of the tractor in the middle of the road, which obstructed passing of the car of Mahaveer. It is submitted that the accused-appellants had a right of private defence of their person and property, particularly when there was no previous enmity with Omprakash Meena. It is clear from the statement of the prosecution witnesses that the occurrence took place suddenly when the accused-appellant found the truck parked on the turn of the road, which had blocked the way of the car of Mahaveer. The trial court has not considered the statement of Hajari Lal (PW-21). He has totally demolished the case of the prosecution. It is clear from the statement of this witness that there was a delay in lodgement of the 'parcha bayan', which was created after a long time and due to that reason the F.I.R. (Exhibit P-22) was lodged. No conviction can be sustained on the basis of statement of Ram Kumar (PW-24), who concocted the prosecution story. 11. It is argued that the trial court has failed to consider that many of the aforesaid circumstances were not put to the accused appellant in their examination under Section 313 of the Cr.P.C. The whole approach of the trial court in placing the burden of proof of innocence on the accused party is perverse. There is no evidence on record to attract the provisions of Section3 (ii)(v) of the Act of 1989. The prosecution has utterly failed to produce any evidence to show that the deceased was subjected to beating only because they happened to be the members of the Scheduled Tribes community. 12. Referring to the statement of Dr. Paras Jain (PW-19), learned Senior Counsel submitted that the injury-report (Exhibit P-18) of Omprakash shows that he sustained a lacerated wound in the size of 2cm x 2cm x 1cm on right side lower and outer part of the chest. 12. Referring to the statement of Dr. Paras Jain (PW-19), learned Senior Counsel submitted that the injury-report (Exhibit P-18) of Omprakash shows that he sustained a lacerated wound in the size of 2cm x 2cm x 1cm on right side lower and outer part of the chest. No bullet was extracted from the body of the deceased nor any used or empty cartridge was found from the possession of the accused and thus the allegation of use of 'katta' by the accused is baseless. In reply to a specific query, Dr. Paras Jain (PW-19) in his cross-examination has stated that he did not give any opinion in the injury-report (Exhibit P-18) and he cannot state about the injuries of Omprakash as to from which they were caused. He further stated that he cannot state as to from what distance the bullet was fired. It is argued that Omprakash died two days after the incident and there is not evidence on record as to where was he during this period. He died due to septicemia, which was a secondary cause of his death and not because of firearm injury. 13. Learned Senior Counsel referred to the statement of Dr. Vishva Deepak Bijawat (PW-26), who conducted the postmortem on the body of the deceased. He has proved the postmortem report (Exhibit P-23). He has not clarified that whether there was any entry or exit wound. He has although stated that firearm injury was there but has not clarified that there was also an exit wound and if at all it was an entry wound of a bullet, whether any bullet was found inside the body of the deceased. What is evident from the reading of the statements of Dr. Paras Jain (PW-19) and Dr. Vishva Deepak Bijawat (PW-26) is that the injury does not appear to be a firearm injury but have been caused by some other weapon. Had it been the case of firearm injury, the prosecution would have proved it by seizure of the shirt of the deceased, which might have contained both entry and exit wounds. Referring to site plan (Exhibit P-2), learned Senior Counsel submitted that blood was not shown anywhere near the liquor shop, which fortifies the case of the defence that the incident did not occur in the manner in which it is alleged to have taken place. 14. Referring to site plan (Exhibit P-2), learned Senior Counsel submitted that blood was not shown anywhere near the liquor shop, which fortifies the case of the defence that the incident did not occur in the manner in which it is alleged to have taken place. 14. Learned Senior Counsel submitted that according to Dr. Vishva Deepak Bijawat (PW-26), the cause of death given in the postmortem report was the coma as a result of hepatic encephalop following complications of firearm injury to abdomen. This clearly shows that deceased Omprakash died due to septicemia. In the opening part of his examination, he has stated that the cause of the death was coma due to liver disease as a result of which there occurred pus therein and thereby blue-iron fluid generated and reached up to the brain with blood. He admitted that in the cavity part of the abdomen of the deceased there was 250 ml fluid, which obviously was pus with mixture of blood and this was developed near the stitches. 15. Learned Senior Counsel submitted that while a 12-bore gun was found to have been recovered vide recovery-memo (Exhibit P16) but the country-made pistol ('katta') is shown to have been recovered at the instance of accused-appellant Lal Chand (Exhibit P-17). 16. Learned Senior Counsel referred to the injury report of Mahaveer (Exhibit D-2) and argued that even Mahaveer himself was subjected to beating as he sustained eight injuries, though by blunt weapon and that his injuries have been proved by none other but by Dr. Paras Jain, who appeared in the cross-case as PW-3. 17. Mrs. Sonia Shandilya, learned Public Prosecutor appearing for the respondent State, opposed the appeal and supported the judgment in entirety. She referred to statements of various prosecution witnesses as also the exhibits to justify the findings recorded by the trial court, which do not call for any interference by this Court. 18. We have given our anxious and thoughtful consideration to the rival submissions and perused the material on record. 19. Though it is true that the 'parcha bayan' of deceased Omprakash, especially when he passed away subsequently, deserve due weight-age but at the same time the version in the 'parcha bayan' has to be used in the context of the entirety of the case. 19. Though it is true that the 'parcha bayan' of deceased Omprakash, especially when he passed away subsequently, deserve due weight-age but at the same time the version in the 'parcha bayan' has to be used in the context of the entirety of the case. The statements of the prosecution witnesses, especially Sonu (PW-3) and Jodhraj (PW-13), coupled with the fact that accused Mahaveer himself in the cross case has stated that he sustained as many as eight injuries, which is evident from his injury report (Exhibit D-2), clearly indicates that the incident had actually taken place in a different manner than what has been disclosed by Omprakash in the 'parcha bayan'. Although Sonu (PW-3) in the examination-in-chief stood firm on what Omprakash stated in the 'parcha bayan' but in cross-examination he failed to stand the scrutiny, in which he admitted that liquor shop was situated hardly about 25 steps away from the canal. The face of the tractor parked on the road was towards the canal. The distance of Anta was about 7-8 kilometers. It was a busy road. At that time the construction work on the road was going on. One could travel from Anta to that place within fifteen minutes in a car. There are so many liquor shops in Anta and that he could go Anta to bring the liquor within fifteen minutes. He admitted that Mahaveer came there in a car but denied the suggestion that Mahaveer repeatedly blew the horn of the car asking removal of the tractor from the way to enable his car to pass through. He also denied that Mahaveer came to Jodhraj (PW-13) and asked him to remove the tractor. He rather stated that Mahaveer, upon seeing the tractor parked on the road, started abusing but Jodhraj (PW-13) did not move from his place, however, admitted that a quarrel ensued between Jodhraj and Mahaveer as they were physically engaged with each other in the scuffle. But, he denied that he was also involved in such scuffle and gave company to Jodhraj (PW13). He admitted that all of them started beating him. But then in the next sentence he has admitted that when Mahaveer hurled abuses at Jodhraj (PW-13), Jodhraj, Mukut, Ram Prasad and Omprakash all started beating him but he was not there. He denied the suggestion that Mahaveer, as a result of beating, fell on the ground. He admitted that all of them started beating him. But then in the next sentence he has admitted that when Mahaveer hurled abuses at Jodhraj (PW-13), Jodhraj, Mukut, Ram Prasad and Omprakash all started beating him but he was not there. He denied the suggestion that Mahaveer, as a result of beating, fell on the ground. He also denied the suggestion that they had burnt/damaged the car of Mahaveer and threw the same into the canal, but in the next sentence he admitted that the car was thrown into the canal and thereafter Lal Chand and Jagannath, the son and father, came there. Jagannath was an old aged person. They came there on hearing hue and cry raised by Mahaveer and they both gave 'lalkara' (warning) and asked them not to give beating to Mahaveer. Pappu snatched the gun from Jagannath and then pointed the gun at Mukut. Mukut was a friend of Jodhraj. He denied the suggestion that Mukut and Jodhraj had consumed the liquor there. Mukut also was a tractor driver and his tractor was also normally lying parked there. At that time both the tractors were parked there. Accused Lal Chand asked Pappu to return the gun. Omprakash lifted the gun, which was broken and when others started snatching it, the same was broken. He denied the suggestion that in the process of scuffle, the gun opened fire resulting into injuries to Omprakash but he admitted that when Lal Chand asked to return their gun, Omprakash refused to give the gun as he was afraid that Lal Chand would kill him. By that time the gun had been broken and was not serviceable. Omprakash did not leave the gun, and, therefore, the gun was broken. He denied the suggestion that they gave beating to Jagannath and again subjected Mahaveer to beating. 20. The complete narration of the manner in which the incident took place clearly indicates that the accused-appellant Mahaveer picked up a quarrel with Jodhraj when he refused to remove the tractor to give a way to his car and then other members of the complainant party, namely, Mukut, Ram Prasad and Omprakash along-with Jodhraj started beating Mahaveer, who sustained as many as eight injuries, the fact admitted by Sonu (PW-3). It is thereafter that on receiving phone call from Mahaveer, Lal Chand and his father Jagannath came there. It is thereafter that on receiving phone call from Mahaveer, Lal Chand and his father Jagannath came there. The gun of Jagannath was snatched by Omprakash. When Lal Chand demanded the gun back, Omprakash refused to give the same and then the scuffle ensued and thereafter involvement of the country made gun ('katta') was seen, with regard to which it is alleged that Lal Chand had a 'katta' in his hand and it is by that 'katta' that he opened fire at the deceased. 21. When we see the statement of Madan Mohan (PW-12), therein he has stated that when Mahaveer demanded the liquor from Omprakash, he told him that since the shop was closed at 08:00 PM, he (Omprakash) could not give him the liquor and then Mahaveer started abusing him. Then Mahaveer gave a call on mobile phone to his relatives. Thereafter, Lal Chand and Jagannath came there. Jagannath had a gun in his hand. Jagannath pointed the gun at Mukut. Madan Mohan (PW-12) then stated that he snatched the gun and threw the same on the ground. Omprakash lifted the gun and he went to make a telephone. Lal Chand then demanded the gun from him but then Omprakash said that he would return the gun only when the police would arrive. Thereafter, Lal Chand, Mahaveer and Jagannath, all three of them, started beating Omprakash. Lal Chand opened fire from country made gun at Omprakash, as a result of which he sustained injury on his right side of stomach and fell on the ground. 22. Madan Mohan (PW-12), in cross-examination, has admitted that Jodhraj owned a tractor, which he used to drive. At the relevant time the tractor was parked on the road. Mukut was also there. He denied the suggestion that when Mahaveer asked Jodhraj to remove his tractor for giving side to his car, they continued to sit on the wooden platform ('takhta'), but then he stated that Mahaveer went near his car and made a telephonic call. Mahaveer kept standing near his car for about ten minutes. Mukut was also there. He denied the suggestion that when Mahaveer asked Jodhraj to remove his tractor for giving side to his car, they continued to sit on the wooden platform ('takhta'), but then he stated that Mahaveer went near his car and made a telephonic call. Mahaveer kept standing near his car for about ten minutes. The statements of the prosecution witnesses, especially Sonu (PW-3) and Jodhraj (PW-13), coupled with the fact that accused Mahaveer himself in the cross case has stated that he sustained as many as eight injuries, which is evident from his injury report (Exhibit D-2), clearly indicate that the incident had actually taken place in a different manner than what has been disclosed by Omprakash in the 'parcha bayan'. 23. A cumulative reading of statement of Sonu (PW-3) and Mukhtyar Ali (PW-10), who have not been declared hostile, clearly indicate that it was Mahaveer, who was first of all beaten by the members of the complainant party and while the gun of Jagannath was snatched away by Mukut and thrown on the ground, Omprakash did not do that and in the scuffle the gun was broken. Accused-appellant Lal Chand at that time opened fire. Lal Chand in his zeal tried to snatch the gun of his father from Omprakash and he became annoyed when the gun was not handed over to him by Omprakash but when he was trying to snatch the gun, it was broken. It was at that juncture that accused Lal Chand in the heat of passion but without any premeditation fired the gun, which unfortunately hit Omprakash. It is thus clear that Lal Chand opened fire in a sudden fight at the spur of moment without any premeditation and in the heat of passion, which hit Omprakash. Moreover, Omprakash in the present case, did not die immediately due to aforesaid injury but he died due to septicemia, which was a secondary cause of his death. We are inclined to uphold the argument of the learned counsel for the accused-appellants that the prosecution having failed to prove as to where and in which private hospital Omprakash was admitted or whether Omprakash continued his treatment at home for the intervening period, an adverse inference ought to be drawn against the prosecution. Had the deceased been provided proper treatment, he would have survived. 24. Had the deceased been provided proper treatment, he would have survived. 24. Accused-Appellant Lal Chand in Appeal No. 385/2015, in our view, can be convicted not for offence of murder but only for offence of culpable homicide not amounting to murder punishable under Section 304 Part-I of the IPC. We are, however, persuaded to hold accused-appellant Mahaveer in Appeal No. 357/2015 not guilty of offence alleged against him holding him entitled to benefit of doubt. There is no evidence at all on the record that Omprakash was fired at by accused Lal Chand only because of the reason that he happened to be a member of Scheduled Tribes community, on the contrary the incident in the present case was preceded by another incident in which brother of Lal Chand was subjected to beating by members of the complainant party and damaged/burnt his car and thrown the same in the canal. In view thereof, the offence against the accused-appellants under Section 3(ii)(v) of the Act of 1989 is not made out. 25. In the result, we dispose of both the criminal appeals in the following manner:- (1) the Criminal Appeal No. 357/2015 is allowed. Accused-appellant Mahaveer is acquitted of the charges levelled against him. He is on bail as his sentence was suspended by this Court and he need not surrender. (2) The Criminal Appeal No. 385/2015 is partly allowed. The conviction and sentence of accused-appellant Lal Chand for offence under Section 302 IPC is set aside and instead he is convicted for offence under Section 304 Part-I IPC and for that offence he is sentenced to suffer ten years rigorous imprisonment with fine imposed by the learned trial court with default clause. He is acquitted of the charge under Section 3(ii)(v) of the Act of 1989. He is in jail and has to serve out the remaining period of sentence. (3) The impugned judgment and order of the learned trial court is accordingly modified. (4) Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant, namely, Mahaveer S/o Raghunath is directed to forthwith furnish a personal bond of a sum of Rs. (3) The impugned judgment and order of the learned trial court is accordingly modified. (4) Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant, namely, Mahaveer S/o Raghunath is directed to forthwith furnish a personal bond of a sum of Rs. 20,000/- each and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, he, on receipt of notice thereof, shall appear before the Supreme Court.