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2019 DIGILAW 1027 (ALL)

Suresh v. State of U. P.

2019-04-22

PRITINKER DIWAKER, RAJ BEER SINGH

body2019
JUDGMENT : Raj Beer Singh, J. 1. The present criminal appeal arises out of impugned judgment dated 05.03.2010 and order dated 08.03.2010 passed by the learned Additional Sessions Judge, Bareilly in Session Trial No. 723/2006, State vs. Suresh, under Sections 302 and 307 of IPC, P.S. Faridpur, District Bareilly, whereby appellant Suresh has been convicted under Sections 302 and 307 of IPC and sentenced to undergo imprisonment for life along with a fine of Rs. 10,000/- under Section 302 of IPC and to undergo seven years rigorous imprisonment along with a fine of Rs. 5000/- under Section 307 of IPC. In default of payment of fine of Rs. 10,000/- he was sentenced to undergo one year rigorous imprisonment, while in default of payment fine of Rs. 5000/- he was sentenced to undergo six months rigorous imprisonment. Both the sentences were to run concurrently. 2. In this case, name of the deceased is Ram Pravesh, who is brother of complainant Santram. The version of prosecution is that since last 2-3 days of the incident, a boundary related dispute was going on between the complainant's uncle Mahraj Singh and appellant Suresh. On 15.03.2006 at 6:30 p.m. an altercation took place between appellant Suresh and deceased Ram Pravesh and his cousins. In the state of anger, appellant Suresh took out his licensed double barrel gun and fired 4-5 shots at the deceased and injured persons, resultantly Ram Ratan, Guddu alias Gajendra and Rishi Pal sustained injuries, while Ram Pravesh died. 3. On the basis of written tahreer exhibit Ka-1, filed by complainant Sant Ram, the present case was registered on 15.03.2006 at 2:10 hours, under Sections 307 and 302 of IPC against appellant Suresh, vide FIR exhibit Ka-3. 4. The inquest proceedings were conducted by PW-8 Daya Chandra Pundir under the supervision of PW-7 Sukhbir Singh Yadav, S.O. and PS. Faridpur. The inquest report exhibit Ka-11, was prepared and the dead body of the deceased was sealed and sent for post-mortem. Two empty cartridges found at the spot were sealed and taken into possession vide Seizure Memo exhibit Ka-9. 5. The post-mortem on the dead body of the deceased was conducted on 15.03.2006 by PW-6 Dr. Deepak Kumar Saxena. As per post-mortem report, the deceased has sustained following injuries:- (i) Abrasion 2 x 1 cm over Rt. side head 2 cm above Rt. ear. 5. The post-mortem on the dead body of the deceased was conducted on 15.03.2006 by PW-6 Dr. Deepak Kumar Saxena. As per post-mortem report, the deceased has sustained following injuries:- (i) Abrasion 2 x 1 cm over Rt. side head 2 cm above Rt. ear. (ii) L.W. ½ x ½ cm muscle deep over Rt. side face 2 cm below Rt. angle of mouth. One metallic pallet removed from the wound. (iii) Multiple (nine in numbers) small 0.5 x 0.5 cm circulen lacerated wound present skin to chest cavity deep, in front of upper part of chest in area 30 x 27 cm. Cause of death was stated due to haemorrhage and shock as a result of ante-mortem fire arm injuries. 6. Injured persons were medically examined. As per MLC exhibit Ka-5, the injured Gajendra Singh has sustained following injuries: (i) Punctured wound 0.3 cm x 0.3 cm x 0.5 cm on left side of abdomen 11 cm fresh umbilicus at 2 o'clock position fresh oozing of blood present. (ii) Punctured wound 0.2 cm x 0.2 x 0.5 cm on Rt. side neck front lower side 2.5 cm above medial end of Rt. clavicle, fresh oozing of blood present. (iii) Abrasion 0.2 x 0.2 cm on front of Rt. forearm 3 cm below Rt. elbow fresh oozing of blood present. 7. As per MLC exhibit Ka-6, injured Ram Ratan has sustained following injuries: (i) LW 0.3 x 0.3 cm x depth not probed on Lt. side forehead 4 cm above left eye brow medial end, fresh oozing of blood present. 8. As per MLC exhibit Ka-7, Rishipal has sustained following injuries: (i) Abrasion 0.2 x 0.2 cm on left eye brow outer end. 9. After completion of the investigation, appellant Suresh was charge sheeted for the offence under Sections 302 and 307 of IPC. Learned trial court has framed charge under Sections 302 and 307 of IPC against the appellant. The appellant pleaded not guilty and claimed trial. 10. In support of its case, prosecution has examined eight witnesses. 11. The appellant-accused was, examined under Section 313 of Cr.P.C. wherein he has denied the prosecution case and claimed false implication. 12. After hearing and analysing the evidence on record, the appellant was convicted under Sections 302 and 307 of IPC vide impugned judgment dated 05.03.2010 and was sentenced as stated in paragraph No. 1 of this judgment. 13. 11. The appellant-accused was, examined under Section 313 of Cr.P.C. wherein he has denied the prosecution case and claimed false implication. 12. After hearing and analysing the evidence on record, the appellant was convicted under Sections 302 and 307 of IPC vide impugned judgment dated 05.03.2010 and was sentenced as stated in paragraph No. 1 of this judgment. 13. Being aggrieved by the impugned judgment and order, appellant accused Suresh has preferred the present criminal appeal. 14. We have heard Sri. Brijraj Singh and Sri. Harish Chandra Tiwari learned counsel for the appellant and Sri. Amit Sinha, learned AGA for the State and perused the record. 15. Learned counsel for the appellant submits:- (A) that all the three eye-witnesses are interested witnesses. The independent witnesses have not been examined. The version of the alleged eye-witnesses is not reliable. (B) that there are material contradictions in the testimony of the alleged eye-witnesses, which render their testimony unreliable. (C) that even if the prosecution case is accepted as it is, it is clear that the alleged incident took place all of a sudden without pre-mediation in a sudden fight in the heat of passion. It was submitted that soon after the alleged altercation, the appellant lost his control in the fit of rage fired some shots at the deceased and injured. No illegal weapon was used. It was stated that the facts and circumstances of the case show that the deceased and witnesses were trying to attack the appellant and in order to save himself, he ran to the roof and fired shots. 16. On the other hand, supporting the impugned judgment, it has been argued by the learned A.G.A. for the State that besides two eye-witness account, there is evidence of injured witnesses. There are absolutely no reasons to disbelieve the testimony of injured witness. The prosecution has proved its case by sufficient and reliable evidence. It was submitted that the act of appellant-accused Suresh is not covered under any of the exception envisaged in Section 300 of IPC and thus, the act of the accused is punishable under Section 302 of IPC. No case under Section 304 IPC is made out. 17. A perusal of the evidence shows that PW-1 Sant Ram supporting the prosecution version, has stated that an altercation took place between the deceased and his brother Ram Pravesh and his cousins. No case under Section 304 IPC is made out. 17. A perusal of the evidence shows that PW-1 Sant Ram supporting the prosecution version, has stated that an altercation took place between the deceased and his brother Ram Pravesh and his cousins. The appellant took out his double barrel gun and fired at the deceased and injured persons, resultantly Ram Ratan, Gajendra and Rishi Pal have sustained injury and Ram Pravesh died at the spot. 18. PW-2 Ram Ratan, stated that at around 6:30 p.m. he along with Ram Pravesh, Rishi Pal and Gajendra were talking each other and when they reached near the house of appellant Suresh, the appellant started abusing them and when objected, he took out his double barrel gun and fired 4-5 shots from his roof with intention to kill them. He stated that Gajendra, Rishi Pal and Ram Pravesh sustained injury and Ram Pravesh died at the spot. 19. Similarly, PW-3 Raja Ram, stated that at 6:30 p.m. when he along with Gajendra, Ram Ratan, Rishi Pal and Ram Pravesh were talking about boundary, an altercation took place between Suresh and Gajendra, Ram Pravesh, Ram Ratan and Rishi Pal, meanwhile, they reached near the house of the appellant, the appellant took out his double barrel gun and fired shots from the roof with intention to kill them. Gajendra, Ram Ratan and Rishi Pal sustained injuries while Ram Pravesh succumbed to firearm injuries. 20. So far as the contention is concerned that PW-1 Santram, PW-2 Ram Ratan and PW-3 Raja Ram are interested witnesses, it is well settled that a natural witness may not be labelled as interested witness. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim. Generally, close relations of the victim are unlikely to falsely implicate anyone. Relationship is not sufficient to discredit a witness unless there is motive to give false evidence to spare the real culprit and falsely implicate an innocent person is alleged and proved. A witness is interested only if he derives benefit from the result of the case or as hostility to the accused. Relationship is not sufficient to discredit a witness unless there is motive to give false evidence to spare the real culprit and falsely implicate an innocent person is alleged and proved. A witness is interested only if he derives benefit from the result of the case or as hostility to the accused. In case of State of Punjab vs. Hardam Singh, 2005 SCC (Cr.) 834 : AIR 2003 SC 4343 , it has been held by the Apex Court that ordinarily, the mere relations of the deceased would not depose falsely against innocent persons so as to allow the real culprit to escape unpunished, rather the witness would always try to secure conviction of real culprit. In case of Dilip Singh vs. State of Punjab, AIR 1983 SC 364, it was held by the Supreme Court that the ground that the witnesses being the close relatives and consequently being the partition witness, would not be relied upon, has no substance. Similar view has been taken by the Supreme Court in Harbans Kaur vs. State of Haryana, 2005 SCC (Crl) 1213 and State of U.P. vs. Kishan Chandra and Others, (2004) 7 SCC 629 : AIR 2004 SC 4671 . The contention about branding the witness as interested witness and credibility of close relationship of witnesses has been examined by Apex court in a series cases. A close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an interested witness, as held by the Supreme Court in Dalbir Kaur vs. State of Punjab, AIR 1977 SC 472 . The mere fact that the witnesses were relations or interested would not by itself, be sufficient to discard their evidence straight-way unless it is proved that their evidence suffers from serious infirmities, which raises considerable doubt in the mind of the court. Similar view was taken in case of State of Gujarat vs. Naginbhai Dhulabhai Patel, AIR 1983 SC 839 . 21. In the present case, it is the consistent version of PW-1 Santram that an altercation took place over the issue of boundary and thereafter the accused-appellant took out his double barrel gun and fired 4-5 shots at the deceased and injured persons, resulting instantaneous death of Ram Pravesh and causing injuries to the injured. The incident took place 6:30 p.m. inside the village. The incident took place 6:30 p.m. inside the village. The FIR has been lodged by PW-1 without any undue delay. PW-1 has been subjected to lengthy cross-examination, but no major contradiction or infirmity could emerge. In view of these facts, the testimony of PW-1 cannot be doubted on the ground that he is a brother of the deceased. PW-2 Ram Ratan is an injured witness and it could not be disputed that he sustained injuries in the same incident. This fact itself goes to show that he witnessed the incident. PW-3 has also stood the test of cross-examination and his testimony could not be impeached. The presence of these witnesses at the scene of offence was quite natural. It is correct that PW-1 and PW-3 have not sustained any injury but their testimony cannot be doubted on this ground alone. All the witnesses have consistently deposed that after the altercation, the appellant took out his gun and opened fire at them causing death of the deceased and injuring others. In view of these facts and evidence on record, the testimony of PW-1, PW-2 and PW-3 cannot be doubted on the ground that they are related to the deceased or that they are interested witnesses. Relationship is not a ground to discredit testimony of witness, if it is otherwise found to be consistent and true, as held by the Supreme Court in Sarwan Singh vs. State of Punjab, AIR 1976 SC 2304 . There is no rule of law that a Court cannot act on the evidence of interested witnesses. The only thing is that a Court should be careful and cautious in accepting that evidence and if after due scrutiny, it is found that their evidence does not suffer from any infirmities, in that case, there is no reason why a conviction should not follow on that evidence. In Satbir Singh and Others vs. State of U.P. (2009) 13 SCC 790 : AIR 2009 SC 2163 , it was observed that it is 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. 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. In the present case, as stated above, the presence of PW-1, PW-2 and PW-3 at the scene of offence has been established. In view of these facts and evidence on record, the testimony of these witnesses cannot be doubted on the ground that they are related to the deceased or that they are interested witnesses. As stated above, it is well settled that evidence of interested witness cannot be discarded on the sole ground of interestedness, but their evidence should be subjected to a close scrutiny. Interested witnesses are not necessarily false witnesses. Evidence of interested witness cannot be equated with that of a tainted witness. There is no absolute rule that the evidence of an interested witness cannot be accepted without corroboration. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. In view of the above facts, the contention of learned counsel for the accused-appellant has no force. 22. The contention that no independent witness has been examined has no substance. Once it has been found the presence of the witnesses has been established and their credibility could not be affected, non-examination of independent witness would hardly make any difference. In a case like this, wherein the accused had killed one person at the spot and seriously injured the others, it may be difficult for the prosecution to procure an independent witness. The independent witness may not muster the courage to come forward and depose against such accused. As stated earlier, mere relationship cannot be a factor to affect credibility of a witness. Here, it may be observed that PW 3 is not related to the deceased or the complainant. There is nothing to show that he is an interested witness. Merely because other villagers, who reached at the spot, were not examined, it cannot be ground to doubt the testimony of PW-1, PW-2, and PW-3, which otherwise inspires confidence of the Court. The contention of the learned counsel for the appellant has no force. 23. There is nothing to show that he is an interested witness. Merely because other villagers, who reached at the spot, were not examined, it cannot be ground to doubt the testimony of PW-1, PW-2, and PW-3, which otherwise inspires confidence of the Court. The contention of the learned counsel for the appellant has no force. 23. So far as reliability and credibility of PW-1 Santram, PW-2 Ram Ratan and PW-3 Raja Ram is concerned, no major contradictions or inconsistencies could be pointed out in their statements. It is correct that PW 2 stated that the accused did abusing and when objected, he opened fire at the deceased and injured persons, while PW-1 Santram and PW-3 Raja Ram have not stated about any abusing by the appellant, but it is a minor inconsistency, which could hardly affect the credibility of these witnesses. PW-1 Santram has stated that an altercation has taken place and thereafter the appellant took out his gun and opened fire at them. The statement of a witness has to be considered as a whole. Substantially, the version of PW-1 Santram finds ample corroboration from PW-2 Ram Ratan and PW-3 Raja Ram. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters, which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence of the Court. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statement of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. Even if a witness has stated some untrue fact, it is duty of the court to separate the grain from the chaff. It is well settled that even if a witness is found false on a point, it does not mean that his entire testimony has to be disbelieved, rather it is duty of the court to separate the grain from the chaff. The maxim 'falsus in uno, falsus in omnibus' is not applicable in India. A witness may be speaking untruth in some respect it has to be appraised in each case as to what extent the evidence is worthy of acceptance. 24. One of the specific feature of this case is that PW-2 Ram Ratan has sustained injuries. in the same incident. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. Jarnail Singh vs. State of Punjab, (2009) 9 SCC 719 : AIR 2010 SC 3699 , Balraje alias Trimbak vs. State of Maharashtra, (2010) 6 SCC 673 : 2010 AIR SCW 3707 and Abdul Sayed vs. State of Madhya Pradesh, (2010) 10 SCC 259 : 2010 AIR SCW 5701. Jarnail Singh vs. State of Punjab, (2009) 9 SCC 719 : AIR 2010 SC 3699 , Balraje alias Trimbak vs. State of Maharashtra, (2010) 6 SCC 673 : 2010 AIR SCW 3707 and Abdul Sayed vs. State of Madhya Pradesh, (2010) 10 SCC 259 : 2010 AIR SCW 5701. In view of this position of law, there are no reasons to doubt the testimony of PW-2. 25. In the present case, presence of PW-1 Santram, PW-2 Ram Ratan and PW-3 Raja Ram at the spot has been established. Their statement are consistent with the medical evidence as well by the statement of Investigating Officer. The testimony of PW-1 Santram has been corroborated by PW-2 Ram Ratan and PW-3 Raja Ram. No major contradiction or inconsistency could be pointed out. Considering the entire evidence on record, it is clear that the testimony of PW-1, PW-2 and PW-3 is reliable and trustworthy. They have made cogent and consistent statement, which are supported by medical evidence. The motive of the incident has also been proved. These witnesses have been subjected to lengthy cross-examination but no such material fact could come out so as to create any doubt about their credibility. On the basis of the evidence on record and the discussion made above, we are of the considered opinion that findings of conviction recorded by the trial Court are well substantiated by the evidence available on record. 26. Much thrust was given to the argument that even if the prosecution case is accepted as such, at the best, it would make out a case under Section 304 Part II or part I of IPC. It was argued that incident has taken place without premeditation and that in the heat of passion upon a sudden quarrel. Therefore, the case of the accused-appellant is covered under exception (4) of Section 300, IPC. 27. The prosecution version is that there was some boundary related dispute between the complainant's distant uncle Mahraj Singh and Suresh. On the day of incident at 6:30 p.m. an altercation took place between appellant Suresh and deceased Ram Pravesh and his cousins and thereafter, in anger appellant Suresh fired 4-5 shots at the deceased Ram Pravesh, injured Ram Ratan, Guddu alias Gajendra and Rishipal from his double barrel licenced gun to kill them, resultantly Ram Ratan, Guddu alias Gajendra and Rishi Pal sustained injuries, while Ram Pravesh died at the spot. 28. 28. It is well settled that for bringing in operation of Exception 4 to Section 300 of Indian Penal Code, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. The fourth exception of Section 300 of Indian Penal Code covers acts done in a sudden fight caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner and (d) the fight must have been with the person killed. To bring a case within Exception 4, all the ingredients mentioned in it must be found. In case of Pappu vs. State of Madhya Pradesh, (2006) 7 SCC 391 : AIR 2006 SC 2659 the Apex Court exhaustively dealt with the parameters of Exception 4 to section 300 of IPC. The relevant paras of the judgment are reproduced as under: "13...The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 Indian Penal Code is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact Anil whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It is a question of fact Anil whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression "undue advantage" as used in the provision means unfair advantage." 29. In Rampal Singh vs. State of U.P. (2012) 8 SCC 289 : 2012 AIR SCW 4211, the Apex Court has considered the legal aspect as to when culpable homicide would amount to murder and when it would not amount to murder. Hon'ble the Apex Court has held in paragraph No. 22 as under:- "22. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed." 30. In the case of Jhaptu Ram vs. State of Himachal Pradesh, (2014) 12 SCC 410 , the facts were that an altercation took place between the appellant and his son. The accused fired at the deceased. Receiving gun, shot injury, he fell down and died. In this background, the Apex Court converted the conviction of the appellant under Section 304 Part-I, I.P.C. and awarded sentence of ten years rigorous imprisonment and also with a fine of Rs. 5,000/-. 31. In Rampal Singh, 2012 AIR SCW 4211 (supra), the facts of that case were that there was no previous enmity between the two parties. The dispute between them was regarding certain construction made by the deceased; on his land to prevent garbage from being thrown at his open land. Heated exchange of words took place between two, sides. 5,000/-. 31. In Rampal Singh, 2012 AIR SCW 4211 (supra), the facts of that case were that there was no previous enmity between the two parties. The dispute between them was regarding certain construction made by the deceased; on his land to prevent garbage from being thrown at his open land. Heated exchange of words took place between two, sides. In the state of anger accused brought his rifle from his house went on the roof of a nearby house and fired with his rifle, which resulted into the death. In that facts circumstances, the Apex Court held that offence would fall under Section 304 Part I, I.P.C. 32. In State of Madhya Pradesh vs. Gangabishan alias Vishnu and Others, 2018 Law Suit (SC) 655 : AIR 2018 SC (Supp) 1647, the deceased suffered gunshot injury and entry wound was on back of his left thigh and the shot was fired from his backside, which was fired within the range. It was noticed that in view of the medical evidence, it would be easy to infer that if accused No. 1 was having intention to commit murder of the deceased and used fire arm for that purpose, the injury could have been caused on upper limb, above waist of the deceased, but the part chosen for causing injury was the back portion of left thigh. Thus, though accused No. 1 was not having intention to commit murder of the deceased but the act was to cause bodily injury which was likely to cause death. The High Court found that he would be responsible for commission of culpable homicide not amounting to murder punishable under Section 304 (Part I) of IPC. The High Court, after scanning the entire evidence, also held that the respondents were not having an intention to commit murder of the deceased. In view these specific facts and evidence, the judgment of the High Court was upheld. 33. In Pawan Shukla vs. State of Madhya Pradesh, 2012 (2) Law (MPH) 55, the incident occurred suddenly and the deceased came suddenly and indulged in grappling with accused, who had a gun. The evidence suggested that accused and his father suffered some injuries at the time of incident. There was no enmity between the two parties since before. The facts unmistakably indicated that there could have been no intention on the part of appellant to commit murder of the deceased. The evidence suggested that accused and his father suffered some injuries at the time of incident. There was no enmity between the two parties since before. The facts unmistakably indicated that there could have been no intention on the part of appellant to commit murder of the deceased. In the above circumstances, the probability that in a sudden altercation and quarrel accused fired a single gun shot at deceased, as a result of which he died cannot be ruled out. 34. In Ahibaran vs. State of U.P. 2016 (5) Laws (All) 537, the incident of that case has taken place on the date of Holika Dahan. The branches of mango trees of the complainant were cut and were put in Holika Dahan. When the complainant side came to make complaint to the father of appellant Ahibaran then hurling of abuses took place and in the same process, appellant Ahibaran came out armed with country made pistol and fired, which hit the deceased. 35. In Sukhlal Sarkar vs. Union of India and Others, (2012) 5 SCC 703 : 2012 AIR SCW 3398, the observation of Apex Court in Para Nos. 8 to 13 is quoted herein below: "Para 8 - Learned senior Counsel appearing for respondents submitted that the Division Bench of the High Court had correctly appreciated the evidence of PW-1 and came to the right conclusion that ingredients of offence of murder punishable under section 302, I.P.C. were clearly made out. Learned counsel also referred to the evidence of PW-1 and submitted that there was no grave and sudden provocation for the appellant to claim the first exception of Section 304-I.P.C. Para 9 - We have critically gone through the evidence on record especially the evidence of PW-1. Considerable thrust was made by the counsel appearing for the appellant on the following evidence of PW-1 which reads as, follows: "Infuriated, Sanjay Kumar Dubey slapped and pushed the accused and the accused fell down." Learned single Judge, it may be noted, had opined that the provocation was mild, but was sudden and hence the exception to Section 300 would apply. Para 10 - The meaning of expressions "grave" and "sudden" provocation has come up for consideration before this Court in several cases and it is unnecessary to refer to the judgments in those cases. Para 10 - The meaning of expressions "grave" and "sudden" provocation has come up for consideration before this Court in several cases and it is unnecessary to refer to the judgments in those cases. The expression "grave" indicate that provocation be of such a nature so as to give cause for alarm to the appellant. "Sudden" means an action which must be quick and unexpected so far as to provoke the appellant. The question whether provocation was, grave and sudden is a question of fact and not one of law. Each case is to be considered according to its own facts." Para 11 - Under Exception 1 of Section 300 provocation must be grave and sudden and must have by gravity and suddenness deprived the appellant of the power of self-control, and not merely to set up provocation as a defense. It is not enough to show that the appellant was provoked into loosing his control, must be shown that the provocation was such as would in the circumstances have caused the reasonable man to loose his self control. A person could claim the benefit of provocation has to show that the provocation was grave and sudden that he was deprived of power of self-control and that he caused the death of a person while he was still in that state of mind. Para 12 - We have critically gone through the evidence of PW-1, the eye-witness, and we are of the considered view that the deceased had not provoked the appellant in inviting him to fire from his rifle so as to kill him. The deceased, it may be noted was unarmed. PW-1 was only trying to wake up the appellant so as to do patrolling duty. Assuming that the deceased had slapped and pushed the appellant, such an action of the deceased could not be characterized as grave and sudden, so as to provoke the appellant to fire at the deceased killing him at the spot. Para 13 - We, therefore, find no infirmity, in the reasoning of the Division Bench of the High Court in declining to convert the conviction to Section 304-I IPC. We, therefore, dismiss the appeal." 36. Para 13 - We, therefore, find no infirmity, in the reasoning of the Division Bench of the High Court in declining to convert the conviction to Section 304-I IPC. We, therefore, dismiss the appeal." 36. In Gurmukh Singh vs. State of Haryana, (2009) 15 SCC 635 : 2009 AIR SCW 6710, after scanning all the previous decisions, it was stated that where the death was caused by a single blow, the Apex Court indicated, though not exhaustively, a few factors to be taken into consideration while awarding the sentence, observed as under: "23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under: (a) Motive or previous enmity. (b) Whether the incident had taken place on the spur of the moment. (c) The intention/knowledge of the accused while inflicting the blow or injury. (d) Whether the death ensued instantaneously or the victim died after several days. (e) The gravity, dimension and nature of injury. (f) The age and general health condition of the accused. (g) Whether the injury was caused without premeditation in a sudden fight. (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted. (i) The criminal background and adverse history of the accused. (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock. (k) Number of other criminal cases pending against the accused. (l) Incident occurred within the family members or close relations. (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused." It was held that the list of circumstances enumerated above is only illustrative and not exhaustive. It was observed that proper and appropriate sentence to the accused is the bounded obligation and duty of the court. These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused." It was held that the list of circumstances enumerated above is only illustrative and not exhaustive. It was observed that proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavor of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused. 37. Keeping in view the above stated pronouncements, in the instant case, it may be observed that the facts and evidence shows that the deceased and injured have gone near the house of appellant. PW-3 Raja Ram has clearly stated that an altercation took place with the appellant and in the state of anger the accused-appellant fetched his licensed gun and fired 4-5 shots at the deceased and injured persons. In the FIR itself it was mentioned that in the state of anger the appellant took out his gun and fired 4-5 shots. There was no previous enmity between the parties and as per the evidence the alleged dispute of boundary has arisen only 2-3 days back and that too was with Maharaj Singh, the distant uncle of the deceased. The weapon used by the appellant was his licensed gun. It was submitted on behalf of the appellant, that the deceased and his three companions have gone at the house of the accused-appellant and tried to assault the appellant and in order to save his life, the deceased has fired shots. Though there is no evidence in support of this theory but there is evidence to show that it were the deceased and the injured persons, who have gone at the house of the appellant and thereafter an altercation took place. In the state of anger, accused-appellant Suresh took out his double barrel gun and fired 4-5 shots. There is nothing to show that there was any premeditation for causing death of the deceased. In the above circumstances, the probability that in a sudden altercation and quarrel, the accused-appellant fired 4-5 gunshots at deceased and injured, as a result of which the deceased died, cannot be ruled out. There is nothing to show that there was any premeditation for causing death of the deceased. In the above circumstances, the probability that in a sudden altercation and quarrel, the accused-appellant fired 4-5 gunshots at deceased and injured, as a result of which the deceased died, cannot be ruled out. Taking overall view of the matter, it appears that the accused was not having intention to commit murder of the deceased but to cause such bodily injury which was likely to cause death. In such facts and circumstances, the intention of causing murder could not be attributed to the appellant. So far as the death of the deceased is concerned, at best, he could be attributed with the knowledge that his act will cause such bodily injury that may cause death, which was an element of an offence under Section 304(1), IPC. 38. Considering all aspects of the matter, we are of considered opinion that the accused-appellant would be responsible for commission of "culpable homicide not amounting to murder" punishable under Section 304 (Part I) of IPC. Thus, so far as the conviction of appellant u/S. 302, IPC is concerned, it is liable to be modified from that under Section 302, IPC to Section 304 Part I of IPC and accordingly, conviction, is altered. The sentence imposed upon the appellant by the Trial Court u/S. 302 IPC is set aside. However, conviction and sentence imposed upon the appellant by the Trial Court u/s. 307 of IPC is affirmed. 39. The next question, which arises for our consideration, is what would be the appropriate sentence. It was informed that the appellant has been in custody throughout and has served out about 12 years of sentence. Considering all aspects of the matter, appellant accused Suresh is sentenced to 10 years R.I. and fine of Rs. 50,000/- (Rs. fifty thousand only) u/s. 304 Part I of IPC. In default of payment of fine, the appellant shall further undergo two years imprisonment. The appellant is granted six month time for deposing the fine. The conviction and sentence u/s. 307 of IPC, as awarded by the learned trial court, is upheld. We also direct that out of the total fine amount, Rs. 25000/- shall be paid to the legal heirs of the deceased and Rs. 5000/- each, shall be paid to each of the three injured. The conviction and sentence u/s. 307 of IPC, as awarded by the learned trial court, is upheld. We also direct that out of the total fine amount, Rs. 25000/- shall be paid to the legal heirs of the deceased and Rs. 5000/- each, shall be paid to each of the three injured. As the appellant has already undergone sentence of 10 years and both the substantial sentence have run concurrently, thus, he be released forthwith, if not wanted in any other case. 40. Appeal is partly allowed in above terms. 41. A copy of this order be transmitted to the court concerned for necessary compliance.