JUDGMENT
S.K. Chawla, J.
1. This judgment shall also govern the disposal of Criminal Appeal No. 235/79.
2. On 12-6-1978, at about 10.00 a.m., accused/ appellant Hakim Singh, aged about 37 years, a retired official from the Indian Air Force, at his house in village Kachongara, district Bhind (M.P.), shot a gun at his own father Patiram Singh alias Sadhu, causing gun-shot injury to his right thigh. Patiram Singh had become a recluse and therefore was also called by the name Sadhu. He died on way to Bhind hospital. The accused was tried under Section 302, I.P.C. on the charge of committing murder of his father. The learned Sessions Judge acquitted him of that offence but convicted him of the offence under Section 304 (Part I), I.P.C. and sentenced him to R.I. for 5 years and fine Rs. 2.500/-, and in default of payment of fine, to further R.I. for 5 months. It was also directed that out of the fine, if recovered, Rs. 1500/- shall be paid to Smt. Janki Devi (P.W. 2), widow of the deceased and also the mother of the accused.
This is appeal by the accused against the said conviction and sentence. The State also felt aggrieved by the acquittal of the accused of the offence under Section 302, I.P.C. The other appeal (Cr. A. No. 235/79) is by the State.
3. Some of the facts were not in controversy. Accused Hakim Singh had taken his retirement from the Indian Air Force and had come to settle in his village some two years prior to the present incident. A partition had been effected between him and his father Patiram Singh alias Sadhu by village Panchas, even while he was in service. Their house consisted mainly of two adjacent rooms. One of the rooms was in possession of the accused, who lived there with his wife Aruna Devi (D.W. 2). The other room was in the possession of the deceased, who lived with his wife Smt. Janki Devi (P.W. 2).
4. The incident on the date in question took place in the wake of exchange of hot words between the accused and the deceased. The incident culminated not only in the infliction of gun-shot injury in the right thigh of the deceased by the accused who shot a gun at the deceased, but also in sufference of injuries by the accused himself. It may be proper to notice here the injuries received by both. The deceased on his right thigh had four wounds of entrance varying in sizes from 3 to 4 cms. coupled with 3 exist wounds at the right side of the gluteal region vide postmortem report Ex. P-l. There was fracture of the right femoral bone. The femoral artery was severed with a big haematoma. On the evidence of Dr. H. K. Sharma (P.W. 1), all the four wounds could be caused by one gun-shot and the death was due to shock and haemorrhage. Accused Hakim Singh was also got medically examined by the police on the very date of the incident. On the evidence of Dr. S. L. Sharma (D.W. 1) the accused had the following 9 injuries vide injury report, Ex. P-18:
(1) Lacerated wound 5 cm x 1 / 2 cm on the occipital region.
(2) Lacerated wound 4 cm x 1 / 2 cm on the frontal region.
(3) Abrasion 3 cm x 1 cm on the chest.
(4) Abrasion 1 / 2 cm x 1 / 3 cm on lower lip.
(5) Contusion 6 cm x 2 cm on the right thigh.
(6) Contusion 6 cm x 4 cm also on the right thigh.
(7) Contusion 3 cm X 1 1/2 cm on the right side of back.
(8) Contusion 5 cm x 2 cm on the scapular region. j (9) Contusion 2 cm x 1 cm on the left side chest.
5. It may further be noticed that while the F.I.R. of the incident, Ex. P-3, was lodged by Mohar Singh Chowkidar (P. W. 6) on hearsay basis upon information given to him by the deceased, while the latter was being taken in a bullock-cart to the hospital saying that his son Hakim Singh had shot him with a gun and caused thigh injury, a counter-report Ex. P13 was lodged by the accused himself, which was not hearsay. Both the reports were recorded within a short time of each other on the date of the incident. The F.I.R. was recorded at 1.00 p.m., while the counter report at 1.15 p.m. It may also be mentioned that the police put up prosecution in both the cases. The case against the accused was put up under Section 302, I.P.C. for committing murder of his father Patiram Singh. The other case was put up under Sections 452, 147, 148 and 323, I.P.C, against Munshi Singh, Bhoge Singh and Shivnath Singh, the other sons of the deceased and Kuldip Singh and Udaibeer Singh, the grandsons of the deceased. Both the cases were tried and heard, by the same Judge, namely Sessions Judge, Bhind; who delivered judgments in both the cases on the same day one after the other, which was the correct procedure. The law is that where cross-cases arise out of the same incident, it is always desirable in the interest of justice that both the cases should be heard one after the other by the same Judge and judgments should be delivered simultaneously after the completion of trial of both the cases to avoid conflicting findings, though each case should be decided on the evidence led in each case. Reference may be made to the decisions in Banappa v. Emperor in AIR 1944 Bom 146 : (1944 (45) Cri LJ 701); Ujagar Singh v. Emperor in AIR 1936 Lah 356 : ((1936) 37 Cri LJ 510); Ranchhor v. State in AIR 1954 Sau 27 : (1954 Cri LJ 383); Rajendra Singh v. State of M.P. in 1986 MPLJ SN 5 and ultimately the decision of the Apex Court in Kewal Krishan v. Surajbhan in . The result of the present case is known; namely, that the accused has been convicted for the offence under Section 304 (Part I), I.P.C. The result in the other case is however not known since neither parties cared to file copy of the judgment in that case. That judgment would have been relevant for a limited purpose only, to know what was held in that case on the evidence appearing in that case. Be that as it may.
6. The prosecution case may briefly be now noticed. On the morning of the date of incident, during temporary absence of the accused, the accused s wife Aruna Devi (D. W. 2) went to her father-in-law i.e. deceased Patiram and asked him to return gold-mohar which her husband had given. The deceased replied back that her husband had given that gold-mohar in the marriage of his brother Bhoge Singh and therefore she should demand the gold-mohar from Bhoge Singh. Aruna Devi then abused the deceased and called him a Gunda. The deceased felt so much hurt that he left unfinished the partaking of food and came out in the varandah of the house, in an anguished frame of mind. At that very time, the accused returned from outside. The deceased naturally complained to him that the latter’s wife had misbehaved with him by abusing him. The deceased, however retorted by saying as to why the deceased had got his Babul wood lifted. The deceased stated that the wood belonged to him. The deceased also said that the accused would not thereafter milk their she-buffalo. This aroused the anger of the accused and he thundered that he would milk the she-buffalo and that none could prevent him from doing so. The accused also rushed inside his room and brought out his double-barrel gun. He fired it at his father i.e. the deceased. That shot missed. The accused then fired second time and this time the shot hit the deceased, causing him a serious injury in his right thigh as already noticed. The other sons of the deceased, namely, Munshi Singh (P.W. 3), Bhoge Singh (P.W. 4) and Shivnath Singh (P.W. 5) and grandsons Kuldeep Singh and Udaybeer Singh rushed and had a scuffle with the accused in a bid to disarm him. The accused received some injuries in the process. He was disarmed and the gun was also broken by Shivnath Singh (P.W. 5) by means of an axe.
7. The defence version was that on the date of the incident, the accused returned from village Dharamdas-Ka-Pura, where he had gone to attend a Lagun. He had taken along with him his gun. On return to his house, the accused found that his brother Munshi Singh (P.W. 3) was fixing tatiya (matting) to a bullock-cart. The accused questioned Munshi Singh as to way the latter had got removed the Babul Wood, which the accused had cut and kept for drying. Munshi Singh replied that he had also a share in the wood. The accused thereupon stated that the partition had taken place and that the tree had fallen to his share and hence he had cut it. Munshi Singh had an axe with him at that time. Munshi Singh exhorted Bhoge Singh, Shivnath Singh, Kuldeep Singh and Udaybeer Singh, who had lathis with them, to catch hold of the accused and beat him. The accused thereupon ran inside his room but he was chased into the room by those persons. Munshi Singh then gave an axe blow from its blunt side on the head of the accused. When the accused saw that he had been surrounded by those five persons and that they would kill him, he fired his gun in the air to scare them away. Yet they continued to beat him. At that stage the deceased also appeared with a stick in his hand. The accused fired second time in self-defence. That shot hit the deceased. Munshi Singh and others continued to beat the accused and when the accused’s wife Aruna Devi (D.W. 2) came to save him, she was also beaten by those persons.
8. Highlighting the admitted circumstances that the accused had received 9 injuries, including 2 lacerated wounds on his head as per Ex. P-18, already noticed, and further that the accused’s gun was got completely broken, Shri J.P. Gupta, learned counsel for the accused/appellant submitted that the accused acted in exercise of the right of private defence and had committed no offence, being saved under Section 96 of the Indian Penal Code.
9. It is true that the accused pleading the right of private defence need not prove it beyond reasonable doubt. It is enough, if on the basis of the circumstances of a particular case, applying the test of preponderance of probabilities the version becomes acceptable. The burden placed on the accused is discharged no sooner he creates a doubt in the mind of the Court and satisfies the Court that the version disclosed by him is more probable. (See Dwarka Prasad v. State of M. P. in 1993 AIR SCW 1122 : (1992 Cri LJ 2027). A long catena of Supreme Court decisions is noticed in paragraph 14 of the said decision.
10. We have closely considered the evidence of prosecution witnesses Jankibai (P.W. 2), Munshi Singh (P.W. 3), Bhoge Singh (P.W. 4) and Shivnath Singh (P.W. 5), who were examined by the prosecution to prove the incident. They are mother and brothers of the accused. Their evidence is that the accused, after he had exchange of hot words with his father, got so much aroused and wild, that he rushed into his own room and brought out a gun. This led to the occurrence of the tragedy. After bringing out the gun, the accused fired it at his father. That shot missed. The accused then fired a second shot, which hit the deceased causing a serious gun shot injury in his right thigh. The witnesses stated that it was clear to them that the accused was completely seized with violence mania and would have fired further. Therefore they rushed and scuffled with the accused to disarm him. In that process the accused, fell down on the ground several times and received injuries. They could disarm the accused. The gun was then smashed and broken with an exe by one of them, i.e., Shivnath Singh (P.W. 5).
11. It was argued by learned counsel Shri J. P. Gupta that as many as 9 injuries and particularly two lacerated wounds on the head and contusions; namely, injuries 5, 6, 7, 8 and 9 described in Ex. P-18 – which could be caused according to the doctor by hard and blunt object and not by hard and rough surface could not have been caused to the accused during the course of mere scuffle. We find that it has appeared in the evidence that the prosecution witnesses who rushed to disarm the accused had with them lathis and an axe. Scuffle is after all a scuffle. A scuffle was not being nicely and delicately played, as if in a drama. It is not surprising that the accused got somewhat thrashed during that scuffle. It is too much to expect that those who had scuffled with the accused should have expressly stated that the accused was also beaten by them and thereby should have afforded a material for their conviction in the counter case. It is wrong to give too narrow an interpretation to the word “scuffle” used by these witnesses to mean and include only those injuries which could be received by the accused by a fall or falls over hard and rough surface. When armed persons scuffle with another holding a gun in order to disarm him, it is natural if certain wounds and contusions, besides abrasions, are caused to the holder of the gun. The mother Jankibai (P.W. 2), felt cornered and had to admit the truth of that portion of her police statement (Ex. D-l portion B to B) according to which her sons and grandsons had beaten the accused and confined him in a room.
12. A non-confessional report lodged by an accused may in the case in which he figures as a complainant attract only the provisions of the law of evidence as to corroboration or contradiction and may be no more admissible than former statement of a witness, yet in the case in which he figures as an accused, as in the present case, it is admissible against him as his admission under Section 21 of the Evidence Act. The bar under Section 162, Cr. P. C. or Section 25 of the Evidence Act would not apply to it. (See Dal Singh v. Emperor in AIR 1917 PC 25; In re Guruswami Tevan in (1939) 40 Cri LJ 922; Sebastian David v. Sirkar Prosecutor in (1950) 51 Cri LJ 648; Camrul Hasan v. Emperor in AIR 1942 Oudh 60: (1943 Cri LJ 115) and Ramakrishnayya v. State in . While using that material as admission against the accused, it is open to dissect it and to accept a part or parts of it relating to distinct matter or matters even while rejecting the other parts on the ground of their inherent improbability. A look at the counter-report, Ex. P-13, made by the accused, will show that it contains the most damaging admission that all the injuries to the accused, but for an alleged axe-injury from its blunt side on the head, were received by him only after he had fired at his father Þesjsls cUnqd py xbZ fQj buykxksaus ykfB;ksa
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There is further admission that the accused had picked up ¼mBkyh½ his licenced gun before he had fired it at his father. This belies the defence version that the accused was already holding a gun when he returned from outside village to his house. It is also an admitted circumstance that the accused had rushed into his room before he fired. If the accused was already having a gun with him, when he returned from outside village and when heated words were exchanged, the accused being armed would not have run into the room. The circumstance that the accused ran into his room lends a ring of truth to the prosecution version that the accused ran into his room only to pick up his gun and brought it out before the catastrophe occurred. The story that the accused had first fired in the air was conspicuously absent in the counter-report, Ex. P-13. The defence version appears to be improbable.
13. To sum up, it appears quite safe to hold on the evidence that had appeared in the case that the accused first had hot exchange of words with-his father, i.e., the deceased. At that time, the accused was not holding any gun or arm. The accused got so much aroused and worked up in the wake of hot exchange of words, that he rushed inside his room and brought out a gun. He then fired twice from his gun. The first shot missed his father but the second struck him. The deceased’s other sons and grandsons rushed with lathis and an axe to disarm the accused. A scuffle ensued in which the accused received the injuries sustained by him. He was successfully disarmed. The firearm was then also broken by one of the brothers of the accused. The defence version that the accused acted in exercise of right of private defence is not true.
14. It was next submitted by learned counsel Shri J. P. Gupta that the offence committed by the accused, at any rate, was no more than offence under Section 304 (Part II), I.P.C. The contention of the State in the connected appeal is that the offence committed by the accused was the offence of murder under Section 302, I.P.C. It is well to bear in mind that there was no previous enmity between the accused and his father. There was absolutely no pre-meditation on the part of the accused. The incident had occurred all of a sudden in the wake of exchange of hot words. The accused was a retired military personnel. He could not be said to be a person unacquainted or inexperienced in the use of a firearm. The deceased was shot at, not on any part of the body above the waist line, but on his right thigh. A thigh is not such a part of the body, an injury on which must result in death. The death in the present case unfortunately occurred due to rupture of femoral artery. The accused could not have known the location of femoral artery or that he would be causing injury to the femoral artery by an injury on the thigh. In similar circumstances an accused in Nihal Singh v. State of M. P., 1977 (Vol 1) MPWN 575 was acquitted of the offence under Section 302, I.P.C. and convicted of the offence under Section 304 (Part II), I.P.C. It would be proper to hold that the accused did not have the intention of either causing death or of causing such bodily injury as was likely to cause death of the deceased. But the accused could safely be credited with the knowledge that he was by his act likely to cause the death of his father. The accused, therefore, committed an offence, not under Section 302 or Section 304 (Part I), I.P.C, but offence under Section 304 (Part II), I.P.C.
15. The learned appellant’s counsel finally submitted for reduction of sentence. It was submitted that the accused was bailed out by this Court in the year 1978. The accused has therefore been at large for over nearly 15 years. To send him back to suffer jail sentence, at this stage, it was argued, would be unduly harsh and purposeless. It was submitted that the accused had already suffered nearly six months of undertrial detention during the sessions trial. This should be treated to be sufficient sentence by directing reduction of sentence to already undergone. Reference was made to the decisions in Chandalal v. State of Rajasthan in ; Gurdeep Singh v. Jaswant Singh in ; Gulshan v. State of Punjab in ; Naib Singh v. State of Punjab in and State of U.P. v. Jodha Singh in . In all these cases, it was submitted that because of the circumstance that the accused had been at large on bail for a long period, the sentence inflicted was reduced to already undergone with or without the addition of sentence of fine, to obviate the hardship of the accused being sent back to jail after he had led the life of a peace abiding citizen for a long time. A well known principle of criminology that initial few months of jail life are the most painful and therefore the most deterrent, noticed in a Supreme Court decision, was also relied upon by the learned appellant’s counsel. For this purpose reliance was placed on the following passage in Ashok Kumar v. State (Delhi Administration) in 1980 CAR 59-
“Moreover, the appellant has already suffered nearly six months imprisonment and it is a well-known fact for criminologists that the initial few months of jail life are the most painful and, therefore, the most deterrent. In the present case the offender having served a term of nearly six months must well have realised that the game of crime does not pay.”
16. We find that the accused suffered some kind of punishment when he got injured at the time of the incident receiving as many as 9 injuries. He appears to have temporarily lost his head when in a fit of anger he suddenly shot at his father. He has been at large on bail for nearly 15 years. It may serve no penological purpose if at this point of time he is sent back to jail to suffer the sentence of imprisonment. At the same time it is necessary that a substantial fine is inflicted on him to bring home to him the realisation that he had committed a crime and also to enable proper compensation being paid to the victim of the crime. His Lordship V.R. Krishna Iyer, J. in Ashok Kumar’s case (supra) made the following pertinent observations:-
“Payment of fine brings home the sense for responsibility in a surer fashion than even short terms of imprisonment in some cases.”
In Khanjan Pal v. State of U.P. in (1990) 4 SCC 53 the Supreme Court while altering the conviction of an accused from Section 302, I.P.C. to Section 304 (Part II) I.P.C, reduced the sentence to already undergone but inflicted a fine of Rs. 50,000/ – on the accused to enable the father and other legal heirs of the deceased to be compensated. In our view it will be proper to visit the accused with a fine of Rs. 30,000/- even while reducing the sentence of imprisonment to already undergone.
17. For the foregoing reasons, the State appeal (Criminal Appeal No. 235/79) is dismissed. The present appeal (Criminal Appeal No. 259/78) is partly allowed. The conviction of appellant Hakim Singh is altered from Section 304 (Part I), I.P.C. to offence under Section 304 (Part II), I.P.C. The sentence of imprisonment of the appellant is reduced to already undergone by him but he is additionally fined Rs. 30,000/- (Rs. Thirty thousand). In default of payment of fine, it is further directed that he shall undergo rigorous imprisonment for one year. Out of the fine, if realized, Rs. 25,000/- shall be paid as compensation to Smt. Janki Bai (PW. 2), widow of the deceased. The fine shall be paid by the appellant within 2 (two) months from today.