VINEET KUMAR CHAUHAN v. STATE OF U.P

Citation: [2007] 13 S.C.R. 727

Court: Supreme Court of India

Bench: P.P. NAOLEKAR, D.K. JAIN

Case summary

VINEET KUMAR CHAUHAN v. STATE OF U.P.pdf

Judgment text

VINEETKUMARCHAUHAN ~ v. STATEOFU. P. DECEMBER 14, 2007 (P. P. NAOLEKAR AND D. K. JAIN, JJ. ] > Penal Code, 1860-ss. 302 and304 (Part !! )-Accusedcharged with murder causedbyfirearm-Acquittal by trial court, however, High Court convicted u/s 302-0n appeal, held: Accusedcausedfatal injury to deceased-Though deceased died ofsepticemia and toxemia owing to bedsores, basic cause ofdeath was bullet injury-There was direct casual connection between hitting of bullet fired by accused to deceased and her death-Absence ofevidence ofBallistic expert was not fatal -Requirement ofmens rea was absent-There was no enmity- Occurrence took place without pre-meditation, in heat of 1 passion upon sudden quarrel-At the most, accused had knowledge · that use ofrevolver was likely to cause death, thus, s. 299 clause (3) attracted- Offence committed by the accused would be 'culpable homicide not amounting to murder-Hence, conviction altered to s. 304 (Part II)- Evidence.

Evidence-Ballistic expert's evidence-Accused charged with murder caused byfirearm-Failure to lead evidence ofBallistic expert to prove charges irrespective ofquality ofdirect evidence on record- Does not vitiate trial-However, when direct evidence not available examination ofBallistic expert essential. According to the prosecution case, PW 1 along with his wife and son-PW 2 were living opposite to the house of the appellant. On the fateful day, appellant and his servant went to the house of PW 1and sudden quarrel took place between the appellant and PW. 2 over a minor issue. The appellant went to his house and took his father's revolver and opened indiscriminate firing towards PWl's house from the door ofhis house. One ofthe bullets hit the wife of PW 1in herjaw. PW-1 lodged an FIR. He took his wife to the hospital for treatment. PW 4-doctor found two injuries on the person ofthe deceased. She developed bed sores and ultimately died on the 10th day.

PW-7-doctorwho conduct«l autopsy recovered a metallic bullet from her spinal cord which caused extensive damage in thoracic spine and paralysis of half of her body. He opined that death was caused due to septicemia and toxemia owing to bed sores. The investigations were carried out. The appellant and his servant were charged u/s 302 and 307 IPC. Prosecution examined witnesses. PW 1 and 2were eye witnesses. PW 5 stated that the deceased had suffered paralysis in both her legs due to bullet injury sustained in the spinal cord. Trial Court holding the evidence to be insufficient to warrant conviction, acquitted the accused. High Court upheld the acquittal ofthe servant, however convicted the appellant. Hence, the present appeal.

Appellant-accused contended that the Ballistic Report casts a serious doubt that the distorted bullet allegedly recovered from the spot came out of the seized revolver; that it was also obligatory on the part of the prosecution to send the bullet allegedly recovered from the body of the deceased for being examined by the Ballistic Expert; that it was the prosecution case that the accused was firing towards the house ofthe deceased without aiming at any person and the bullet hit the deceased accidentally when she was closing the door of the house; that even ifthe occurrence is admitted to have taken place in the manner alleged, the appellant cannot be held guilty for the commission of the offence punishable u/s 302; and that the occurrence having taken place without pre-medication, in the heat ofthe passion upon a sudden quarrel, the appellant is entitled to the benefit of Exception 4 of the section 300 IPC. Partly allowing the appeal, the Court HELD:1. 1.

It cannot be laid down as a general proposition that in every case where a firearm is allegedly used by an accused person, the prosecution must lead the evidence ofa Ballistic Expert to prove the charge, irrespective ofthe quality ofthe direct evidence available on record, It needs little emphasis that where direct evidence is of such an unimpeachable character, and the nature of injuries, VINEETKUMARCHAUHANv. STATE 729 disclosed by post-mortem notes is consistent with the direct evidence, the examination ofBallistic Expert may not be regarded as essential. However, where direct evidence is not available or that there is some doubt as to whether the injuries could or could not have been caused by a particularweapon, examination ofan expert would be desirable to cure an apparent inconsistency or for the purpose ofcorroboration oforal evidence. [Para 10) (734-F-H; 735-A) Gurcharan Singh v. State ofPunjab, (1963) 3 SCR 585, relied on. Mohinder Singh v.

The State, [1950) 1SCR821; State ofMP. v. Surpa, (2002) 9 SCC 447, referred to. 1. 2. In the instant case, having regard to the ocular evidence adduced by the prosecution, there is no reason to discard the prosecution theory that the injury as a result whereof deceased suffered complete paralysis ofboth the lower limbs etc. was caused by a bullet fired from a revolver. The nature ofthe injury as proved by P. W. 5 under whose treatment the deceased remained at Moradabad and P. W. 7, who had conducted the post-mortem examination is wholly consistent with the prosecution version. It is clear that the bullet recovered by P. W. 7 at the time ofpost-mortem ofthe victim had traversed to thoracic spine through the neck from the face near the angle ofthe jaw, hitting the fifth thoracic vertebra,. badly damaging the underlying spinal cord.

Therefore, on the facts, the absence of Ballistic Expert's evidence is not fatal to the prosecution case, notwithstanding the fact that the Forensic Science Laboratory, in its report, had not expressed a definite opinion about the bullet recovered from the place ofoccurrence. (Para 12) [735-F-H; 736-A) 1. 3. High Court on analysis of the statements of P. W. 1 and P. W. 2, found their testimonies to be trustworthy. High Court found that it was the appellant who had opened fire from the revolver from his door, one ofwhich had hit the victim, who had come to close the main door of her house. Nothing has been shown as to warrant interference with the said finding recorded by the High Court.

Therefore, in the context ofthis unimpeachahie evidence, it stands proved that the appellant had gone to the house of the deceased; some unsavoury incident took place there; he returned to his house " in a huff; took out the revolver ofhis father and fired shots towards the house of the deceased; one of the bullets hit the deceased and the same proved to be fatal. Having considered to the evidence on record, in particular the testimony ofP. W. 1 and P. W. 2, the High Courtwas correct in coming to the conclusion that the appellant was responsible for causing the fatal injury to the deceased. The High Court also rightly held that though as per the post-mortem report the deceased died of septicemia and toxemia because of bedsores, the basic cause of her death was the bullet injury caused to her by the appellant. [Para 13] [736-B-F] 2.

On facts, it stands proved that there being a direct causal connection between the hitting ofthe bullet, fired by the appellant, to the deceased and her death, the death ofthe deceased was caused by the appellant. However, having regard to the circumstances, particularly the manner in which the appellant fired the shots, the appellant could not be attributed the mens rea requisite for bringing the case under clause (3) ofSection 300 IPC. Concededly, there was no enmity between the parties and there is no allegation of the prosecution that before the occurrence, the appellant had premeditated the crime of murder. Having faced some sort of hostile attitude from the family ofthe deceased over the cable connection, a sudden quarrel took place between the appellant and the son of the deceased, on account ofheat ofpassion, the appellantwent home; took out his father's revolver and started firing indiscriminately, and unfortunately o. ne ofthe bullets hit the deceased on her chin.

At the most, it can be said that he had the knowledge that the use of revolver was likely to cause death and, as such, the instant case would fall within the third clause ofSection 299. Thus, the offence committed by the appellant was only "culpable homicide not amounting to murder". Under these circumstances, the offence are brought down from first degree "murder" to "culpable homicide not amounting to murder", punishable under the second part ofSection 304. The conviction ofthe appellant under Section 302 is set aside and instead is convicted under Section 304 Part II IPC. The sentence of rigorous imprisonment for five years would meet the ends of /. · -~ justice. [Paras 16and17) [737-F-H; 738-A-DJ ' 1 State ofAndhra Pradesh v. Rayavarapu Punnayya and Anr. , (1976) 4 SCC 382; Virsa Singh v. State ofPunjab, [1958) SCR 1495 and Rajwant v. State ofKerela, (1966) Supp SCR 230, relied on. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 35 of2006.

From the final Judgment and Order dated 7. 10. 2005 of the High Court of Judicature at Allahabad in Government Appeal No. 415 of 2000. Sushi! Kumar, Vinay Arora, Aditya Kumar, Sudarshan Singh Rawat, Anmol Thakral and Sanjay Jain for the Appellant. Ratnakar Das, T. N. Singh, Rajeev Dubey and Kamlendra Mishra for the Respondent. The Judgement ofthe Court was delivered by D. K. JAIN, J. 1. This appeal under Section 2(a) ofthe Supreme Court (Enlargement ofCriminal Appellate Jurisdiction) Act, 1970 has been preferred against the judgment of the High Court of Judicature at Allahabad in Government Appeal No. 415 of2000. By the impugned judgment, the appeal filed by the State ofUttar Pradesh has been allowed and the appellant Vineet Kumar Chauhan has been convicted under Section 302 ofthe Indian Penal Code, ('IPC' for short) for causing the murder ofSmt. Premwati. He has been sentenced to suffer imprisonment for life. 2. The genesis of the prosecution case, in brief, was that on 13. 10.

1993 at about 11. 50 a. m. , one Sri Krishna Sharma (P. W. l), husband ofthe deceased, lodged an F. I. R. with the police station Majhola, District Moradabad to the effect that on that day, at about 9. 45 a. m. , when he alongwith his wife and children was watching television, the appellant who was living opposite their house and was a cable operator along with his servant Dharamveer, came to their house and tried to persuade his son-Ravindra Sharma (P. W. 2) to take a cable connection from them. Not being interested in the cable connection, they declined the request ofthe appellant whereupon an altercation took place between the appellant and P. W. 2. The complainant and his wife intervened and asked the appellant to leave their house. The appellant went to his house, brought out the licensed revolver ofhis father and opened indiscriminate firing towards complainant's house from the door of his house.

Some bullets hit the door ofthe house ofSri Krishna Sharma and while his wife, the victim, was closing the door, one ofthe bullets hit her in the jaw. Sri Krishna Sharma brought his injured wife to the hospital for treatment and thereaft:er lodged the F. I. R. 3. The victim was examined by Dr. Jagmal Singh, P. W. 4. The following injuries were found on her person: 1. Lacerated wound 1. 5 cm. x . 5 cm x not probed on face, left side over left mandible, 3 cm. below and outer to left angle of mouth. Advised x-ray ofleft side fact and left side neck. 2. Lacerated wound . 5 cm x . 5 cm x skin on left arm outer part, 4 cm. above left elbow. 4. Both the injuries were found to be fresh. Injury No. l was alleged to have been caused by firearm but final opinion was reserved to be given after the x-ray. Injury No. 2 was caused by a blunt object. On x-ray being taken, a radio opaque shadow elongated was found in thoracic spine in dorsal region over T 5-6. 5.

'lbe victim remained under treatment and supervision ofDr. D. S. Ahlawat (P. W. 5). On 15. 10. 1993, she was taken to Delhi for treatment. However, on 21. 10. 1993, she was again admitted in Moradabad Hospital, where she developed bedsores. Smt. Premwati ultimately died on 25. 3. 1994. As per the autopsy conducted by Dr. S. P. Singh (P. W. 7) on 25. 3. 1994, the ante-mortem injuries were mainly deep bedsores on various parts ofthe body and one old healed scar, size 1. 2 cm x . 5 cut, on the left face at the chin 2. 5 cm. away from medium plank thoracic spine. On internal examination, the doctor recovered a metallic bullet from her spinal cord, which had caused extensive damage in thoracic spine and , paralysis in half of the body. The cause of deat! : was opined to be septicemia and toxemia due to bedsores. After investigations, charge sheet under Sections 452 and 307 was filed against the appellant and his father.

However, charges were framed against them under Sections 302 and 307 IPC. 6. In support ofthe case, the prosecution examined seven witnesses, including Sri Krishna Sharma (P. W. l) and Ravindra Sharma (P. W. 2), who claimed to be the eye-witnesses. As per testimony ofP. W. 5, the deceased had suffered paralysis in both her legs due to bullet injury sustained in the spinal cord. The Trial Court found the evidence to be insufficient to warrant conviction of both the accused. Doubting the presence of P. W. 1-Sri Krishna Sharma and P. W.

2-Ravindra Sharma at the spot and inter-alia, observing that from the report of the Ballistic Expert it could not be established that the lead (from part ofthe bullet) recovered from the spot pertained to a shot fired from revolver recovered from the house ofthe accused-Vineet Kumar and that deceased had actually died ofsepticemia and toxemia owing to bedsores, as she was not properly advised and attended to while she was admitted in hospital and death was attributable to the negligence and bedsore, the Trial Court directed their acquittal. 7. On appeal by the State, the High Court affirmed the acquittal of Dharamveer. Insofar as the case ofthe appellant was concerned, the High Court found the ocular evidence qua him to be perfectly in harmony with the medical evidence. Concluding that the appellant did commit the offence ofmurder, as noted above, the High Court convicted him under Section 3021. P. C. It is this conviction and sentence which has been challenged in this appeal. ....

' 8. Mr. Sushi! Kumar, learned senior counsel appearing on behalfof the appellant assailed the conviction ofthe appellant mainly on the ground that apart from the fact that the Ballistic Report casts a serious doubt that the distorted bullet allegedly recovered from the spot came out ofthe seized revolver, it was also obligatory on the part ofthe prosecution to send the bullet, allegedly recovered from the body of the deceased, for being examined by the Ballistic Expert, so as to connect the recovered licensed revolver ofthe appellant's father with the crime. It was submitted that since it was a positive case ofthe prosecution that the bullet which had hit the deceased was fired from the seized revolver, omission to send the bullet for ballistic examination is aserious infirmity in the prosecution case, which assumes still greater significance because ofBallistic Report, which does .....

not even establish that the renmants ofthe bullet (lead), recovered from the place of incident, was ofthe bullet fired from the revolver allegedly used by the appellant. In support, strong reliance is placed on the decision ofthis Court in Mohinder Singh v. The State', wherein it was observed that in a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty ofthe prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner " in which they are alleged to have been caused. Reference is also made 2 to another decision ofthis Court in State ofMP. v. Surpa , expressing similar view.

Learned counsel has also contended that all through the case ofthe prosecution wa5 that the accused was firing towards the house of the deceased without aiming at any person and the bullet hit the deceased accidentally when she was closing the door ofthe house. It is urged that in case the appellant had any intention to commit the murder of the deceased or any member of her family, he would have gone to I their house and shot them. It is argued that even if the occurrence is ' admitted to have taken place in the manner alleged, the appellant cannot be held guilty for the commission ofoffence punishable under Section 302 IPC. It is asserted that the occurrence having taken place without premeditation, in the heat ofthe passion upon a sudden quarrel, the appellant is entitled to the benefit of Exception 4 ofSection 300 IPC. 9. Learned counsel for the State, on the other hand, supported the view taken by the High Court. 10.

It cannot be laid down as a general proposition that in every • .. case where a firearm is allegedly used by an accused person, the prosecution must lead the evidence of a Ballistic Expert to prove the charge, irrespective ofthe quality of the direct evidence available on record. It needs little emphasis that where direct evidence is of such an unimpeachable character, and the nature of injuries, disclosed by postmortem notes is consistent with the direct evidence, the examination of Ballistic Expert may not be regarded as essential. However, where direct evidence is not available or that there is some doubt as to whether the injuries could or could not have been caused by a particular weapon, ~ I. (1950) I S. C. R. 821. 2. (2002) 9 s. c. c 447. examination of an expert would be desirable to cure an apparent A t inconsistency or for the purpose of corroboration oforal evidence. (See: 3 Gurcharan Singh v. State ofPunjab ) 11.

In Mohinder Singh 's case (supra) on which strong reliance is placed on behalf of the appellant, this Court has held that, where the prosecution case was that the accused shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the it~uries were caused by a gun, and the nature ofthe injuries was also such that the shots must have been fired by more than one person and not by one person only, and the prosecution had no evidence to show that another person also shot, and the oral evidence was of witnesses who were not disinterested, the failure to examine an expert would be a serious infim1ity in the prosecution case. It is plain that these observations were made in case where the prosecution evidence was suffering from setious infirmities.

Thus, in determining the effect ofthese observations, the facts in respect ofwhich these observations came to be made cannot be lost sight of The said case therefore, cannot be held to lay down an inflexible rule that in every case where an accused person is charged with murder caused by lethal weapon, the prosecution case can succeed in proving the charge only if Ballistic Expert is examined. In what cases, the examination of Ballistic Expert is essential for the proof of the prosecution case, must E depend upon the facts and circumstances of each case. 12. In the instant case, having regard to the ocular evidence adduced by the prosecution, there is no reason to discard the prosecution theory that the injury as a result whereof Smt. Premwati suffered complete ' paralysis ofboth the lower limbs etc. was caused by a bullet fired from a F -+ revolvei. lbe nature ofthe injury as proved by Dr. P. S. Ahlawat (P. W. 5), under whose treatment the deceased remained at Moradabad and Dr. S. P.

Singh (P. W. 7), who had conducted the post-mortem examination is wholly consistent with the prosecution version. It is clear that the bullet recovered by P. W. 7 at the time ofpost-mortem ofthe victitn had traversed to thoracic spme through the neck from the face near the angle ofthe jaw, hitting the fifth thoracic vertebra, badly damaging the underlying spinal cord. We are therefore, of the view that on the facts ofthe present case, the absence of Ballistic Expert's evidence is not fatal to the case ofthe prosecution, 3. (1963) 3 S. C. R. 585. notwithstanding the fact that the Forensic Science Laboratory, in its report ~ dated 18. 2. 1991, had not expressed a definite opinion about the bullet recovered from the place ofoccurrence. 13. Insofar as the testimonies of P. W. l and P. W. 2, the two star witnesses ofthe prosecution, are concerned, from the impugnedjudgment, it is manifest that the High Court, on analysis oftheir statements, has found these to be trustworthy.

The High Court has observed that testimony of these two natural witnesses is of sterling character with no holes whatsoever. Based on this evidence, the High Court has found that it was "' the appellant who had opened fire from the revolver from his door, one ofwhich had hit the victim, who had come to close the main door ofher house. Nothing has been shown to us so as to warrant interference with the said finding recorded by the High Court. Therefore, in the context of this unimpeachable evidence, it stands proved that the appellant had gone to the house ofthe deceased; some unsavoury incident took place there; he returned to his house in a huff; took out the revolver ofhis father and fired shots towards the house ofthe deceased; one ofthe bullets hit the deceased and the same proved to be fatal. Having bestowed our anxious ,consideration to the evidence on record, in particular the testimony of P. W. 1 and P. W.

2, we are ofthe opinion that the High Court was correct in coming to the conclusion that the appellant was responsible for causing the fatal injury to the deceased. We are also in agreement with the High Court that though as per the post-mortem report the deceased died of septicemia and toxemia because ofbedsores, the basic cause ofher death was the bullet injury caused to her by the appellant. 14. However, the next question for consideration is whether the -J offence established by the prosecution against the appellant is "murder" - as held by the High Court or "culpable homicide not amounting to murder" - as contended on behalfofthe appellant? 15. The academic distinction between "murder" and "culpable homicide not amounting to murder" has been vividly brought out by this Court in State ofAndhra Pradesh v. Rayavarapu Punnayya and Anr. , ~.

It has been observed that the safest way ofapproach to the interpretation and application ofSections 299 and 300 IPC is to keep in focus the key ' words used in various clauses ofthe said Sections. Minutely comparing 4 (1976) 4 sec 382. " each ofthe clauses of Sections 299 and 300 IPC and drawing support • from the decisions ofthis Court in Virsa Singh v. State ofPunjab5 and 6 Rajwant v. State ofKerala , speaking for the Court, R. 8. Sarkaria, J. neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the court said that whenever a Court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder', on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another.

Proofofsuch causal connection between the act ofthe accused and the death, leads to the second stage for considering whether that act ofthe accused amounts to "culpable homicide" as defined in Section 299. Ifthe answer to this question is primafacie found in the affrrmative, the stage for considering the operation ofSection 300, Penal Code, is reached. - This is the stage at which the court should determine whether the facts proved by t11e prosecution bring the case within the ambit ofany ofthe -~ four clauses ofthe definition of 'murder' contained in Section 300. Ifthe ' answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part nf Section 304, depending, respectively, on whetlier the second or the third clause ofSection 299 is applicable.

Ifthis question is found in the positive, but the case comes within any ofthe exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the first part ofSection 304, Penal Code. It was, however, clarified that these were only broad .. ~· guidelines to facilitate the task ofthe Court and not cast iron imperative. 16. Reverting to the facts in hand, as noted above, it stands proved that there being a direct causal connection between the hitting ofthe bullet, fired by the appellant, to the deceased and her death, the death ofthe deceased was caused by the appellant. However, having regard to the circumstances, briefly enumerated above, particularly the manner in which ... the appellant fired tlie shots, in our view, the appellant could not be iattributed the mens rea requisite for bringing the case under clause (3) of Section 300 IPC.

Concededly, there was no enmity between the parties - 5 1958 SCR 1495 6 1966 Supp SCR 230 and there is no allegation ofthe prosecution that before the occurrence, the appellant had pre-meditated the crime ofmurder. We are inclined to think that having faced some sort ofhostile attitude from the family ofthe deceased over the cable connection, a sudden quarrel took place between the appellant and the son ofthe deceased, on account ofheat ofpassion, the appellant went home; took out his father's revolver and started firing indiscriminately, and unfortunately one ofthe bullets hit the deceased on her chin. At the most, it can be said that he had the knowledge that the use of revolver was likely to cause death and, as such, the present case would fall within the third clause ofSection 299 WC. Thus, in our opinion, the offonce committed by the appellant was only "culpable homicide not amounting to murder".

Under these circumstances, we are inclined to bring down the offence from first degree "murder" to "culpable homicide not amounting to murder'', punishable under the second part ofSection 304 IPC. 17. Consequently, we partly allow the appeal; set aside the conviction ofthe appellant under Section 302 IPC and instead convict him under Section 304 Part II IPC. The sentence ofrigorous imprisonment for five years would meet the ends ofjustice. N. J. Appeal partly allowed.