Sanjaya Kumar Mishra, J.

1. By filing this Appeal, the appellant Anil Singh has called in question his conviction under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the “the Penal Code” for brevity) and sentence of imprisonment for life and to pay a fine of Rs. 20,000/-, in default to pay the fine, to undergo simple imprisonment of one more year, recorded by the learned Sessions Judge, Pauri Garhwal, on 09.01.2014 in Sessions Trial No. 36 of 2011 State vs. Anil Singh.

2. The case of the prosecution, in brief, is that Neeraj Kumar (PW1) produced a written report (Ext.Ka-1) on 28.07.2011 to the Deputy Revenue Inspector, Vichladhangu, Jaakhnikhall, to the effect that his brother Dheeraj Lal, the deceased, was called by Devi Singh (PW2) of village Amkholi from the Mobile No. 8650641409 at 11:34 AM from the village Amkholie. Later on, Neeraj Kumar and his uncle Dinesh Kumar got information from the Head of the Gram Sabha from the Deepa Rawat (PW8) that there has been a fight in the village Amkholi. Neeraj and his uncle reached to the place of fight, and they found the dead body of Dheeraj Lal with the bullet injuries on it. Devi Singh told them that Anil Singh Rawat (the appellant) s/o of Govind Singh of the same village has shot Dheeraj Lal awith with a gun which belongs to Man Singh (PW12).

3. On the basis of the First Information Report produced on 28.07.2011 at 10:30 P.M., a Criminal Case was registered by making chick FIR (Ext. Ka7). The fact was also entered in the General Diary (Ext.Ka-8). Thereafter, the Investigating Officer took of the investigation of the case. He visited the spot, prepared Site Plan and held inquest on the dead body of the deceased and made the Inquest Report (Ext.Ka-10). The dead body was sent for Postmortem Examination. He further reexamined the complainant and other witnesses including the eyewitnesses and formal witnesses. Seized the gun and (Khokha) empty cartridge. These material objects were sent for ballistic expert’s opinion and he arrested the appellant. After completion of the investigation, he submitted the charge-sheet. The Ballistic Test Report has been exhibited as Ext. Ka-24, Ext.Ka -25 and Ext.Ka-26.

4. In defense, on the other hand, took a plea of simple denial and further stated that all the witnesses have told falsehood against him.

In order to prove the charges, the prosecution examined as many as 19 witnesses. PW2 Devi Singh is an eye-witness. His wife PW3 Smt. Suma Devi and their daughter PW19 Puja are the immediate witnesses, who have seen the appellant going away, after hearing gunshot, with the gun in his hand. PW1 Neeraj Kumar, brother of the deceased, is also the complainant in this case. PW 16 Neeraj, PW17 Sukhpal Singh and PW 18 Sanju were the other persons, who were present immediately before the occurrence in the house of PW2 Devi Singh. PW17 and PW18 happen to the nephews of PW2 and they have come to the house of PW2 on his request. PW12 Man Singh and his wife PW9Smt Sarita Devi have stated that their house is near the house of the accused and from their house he brought the gun belonging to PW12 Man Singh for commission of the offence. Rest of the witness are either the formal witnesses or the official witnesses. PW4 Dr. J.C.Dhyani has conducted the postmortem examination on the dead body of the deceased. The Prosecution also led into evidence several documents as exhibits including the FIR and postmortem report and ballistic report etc. It is also relied upon the certain material objects including the gun for commission of the crime.

The defence, on the other hand, examined DW1 Umed Singh, who stated that he went to the house of the eye-witness Devi Singh at about 8:00 AM for some time and he had seen Anil Singh at that place. He further stated that he had not seen Dheeraj Lal and nobody stated him of the villagers that Anil Singh has committed the murder of the deceased.

5. After taking into consideration the evidence led by the prosecution in the light of the defence case suggested the learned Sessions Judge mainly relied upon the PW2 Devi Singh, who is the direct eyewitness of the occurrence and treating the PW3 and Smt. Summa Devi and PW19 Puja as eyewitnesses and came to the conclusion that the case of the prosecution is proved beyond all reasonable doubts. Learned Sessions Judge also relied upon the evidences of other persons present there like the persons, who went to bring some liquor and chicken for the consumptions of the person sitting in the house of Devi Singh and his two nephews. The opinion rendered by Dr. J.C.Dhyani upon the postmortem examination of the deceased and the conclusion arrived at by the Ballistic reports, which has been referred in the preceding paragraphs. Therefore, he proceeded to the convict of the appellant for the offence of murder and sentenced him as stated earlier.

6. In assailing the judgment of conviction and sentence of imprisonment of life, learned Senior Advocate would submit that since the Doctor found round shaped injuries, the evidence of PW2 cannot be believed. As per the learned Senior Counsel, the prosecution alleges that the accused fired at the deceased from the ground floor, whereas the deceased was standing on the first floor, the gunshot injuries cannot have the round shape rather it should have been in the oval shape. Since the oval shape injuries are not found but round injuries are found, the learned Senior Counsel would submit that the case of the prosecution is un-believable. She would further submit that PW2 Devi Singh had a gun. He could have committed the murder. The Investigating Officer has made a faulty investigation by not taking care to seize the gun belonging to Devi Singh and putting it to Ballistic Examination. She would further submit that since there was prior enmity between PW2 Devi Singh and the accused regarding certain monitory dues of the accused from the said witness, he has falsely implicated the appellant in this case. She would also submit that the investigation of the case is faulty and, therefore, the appellant should be acquitted. Alternatively, it is argued by learned Senior Counsel Ms. Pushpa Joshi for the appellant that in any case the occurrence took place because of a certain fight as there was a quarrel between the deceased and appellant and in heat of passion, the appellant had committed homicide of the deceased and the learned Sessions Judge has committed error of record by convicting him for the offence of murder and the appellant should have been convicted the appellant for the offence culpable homicide not amounting to murder punishable under Section 304 of the Penal Code.

7. Learned Deputy Advocate General Mr. J.S.Virk, on the other hand, would submit that the prosecution case cannot be viewed with suspicion because of the shape of the injury found on the dead body of the deceased. As such, opinion of the Doctor cannot outweigh the version of the eyewitness, who is also a natural witness to the occurrence. He would further submit that even otherwise, since the gun was fired from the ground floor of the house of Devi Singh why the deceased was putting on his chappals (sleeper), he might have bent a bit while the bullet hit. So, only because the Doctor gave a opinion that there are round injures the evidence of PW2 cannot be disbelieved. He would further submit that even if there are latches in investigation and that he has conducted the investigation fairly and independently and the defence has failed to point out by relying upon cogent material that the Investigating Officer deliberately bloched up the investigation. He would further submit that even if there is defective investigation, it cannot be a ground for throwing the entire prosecution case if the charge against the appellant has brought home substantially. He would further submit that the appellant was having heated argument along on the deceased thereafter he went away to his house and after 10-15 minutes he came with a gun and fired at the deceased. So, he had enough time to pre-meditate and it cannot be said that it was from a heat of passion in a sudden quarrel. Therefore, the learned Deputy Advocate General would submit that the criminal appeal sans merit and it should be dismissed.

8. This is a case where, the prosecution has alleged that the deceased was killed by the appellant through a firearm injury. It would be appropriate to look at the evidence of the Doctor at the outset. The PW4 Doctor J.C.Dhyani has stated on oath that on 29.07.2011, he conducted postmortem examination of the dead body of the deceased at 2:30 P.M. and in the course of postmortem examination, he found following ante-mortem injuries.

(i) 32 round fire arm injuries caused by pallets in a 20 cm radius on the mid right side of the chest. The injuries found on the right side chest of the deceased had die meter of 4 mm. The injuries were bleeding and there was no blackening of the area.

(ii) One round shape firearm gunshot pallet injury on the right side back having a a die meter of 4 mm.

On further examination, he found that right side, i.e., 3-4 ribs were fractured, which is under the injury no.1. Right lungs was ruptured and was punctured with pellets. The heart which was underneath the injury no.1 was ruptured with the pallets on the right side. PW4 has very categorically stated that the death of the deceased was due to shock resulting from the firearm injury. Thereafter, he prepared the postmortem report (Ext. Ka-3). Thus, it is clear that the Doctor has found the diseased to have sustained the bullet injuries (caused by pellets) and it is the case of the prosecution that the death of the deceased was due to a firearm injury. Thus, this Court is of the opinion that the learned Sessions Judge committed no error by holding that the death of the deceased was homicidal in nature in nature and that he died due to injuries caused by a firearm.

9. Coming to the question of the involvement of the appellant in the crime, the evidence of PW2 Devi Singh, his wife PW3 and PW19 Puja assumes much importance. PW2 in his statement has stated that on 28.07.2011 in the morning hour, he was taking the snacks in his house along with his nephews Sanju and Sukhpal. At that time, the appellant Anil Singh and others came to his home at 7:30 A.M. They started drinking liquor. After sometime, Umed Singh left his house. Thereafter, Anil Singh told one Neeraj to buy one more bottle of liquor from the house of Fateh Singh. At that time, he received a phone call from Dilvar Singh that his hen has died and he may come if he is interested to take it. Thereafter, the said witness called Dheeraj Lal and asked him to bring that dead hen from the house of Dilvar Singh. Dheeraj Lal brought the dead hen. Then, Anil Singh along with them took liquor and cooked the chiken.

10. Coming to the occurrence, the said PW2 further stated that at about 2:00 PM, the deceased Dheeraj Lal stated that he would go to his house. On this, Anil told the deceased Dheeraj Lal that that year the election is being held and the seat has been reserved and he will make the deceased (called him ‘Dumra’) the village Pradhan. On this statement of the appellant, there was alteration between Anil Singh and Dheeraj Lal. Then Anil Singh assaulted the deceased and they started fighting with each other. Then the appellant and Dheeraj Lal were separated. Deceased Dheeraj Lal sat in front of the room. Appellant Anil Singh went towards the house of Man Singh. This witness has further stated that since the appellant went towards his house, deceased Dheeraj Lal also said that about 15-20 minutes thereafter, Dheeraj Lal told the witness that he should be leaving. The deceased went to put on his chappal (sleeper) at the open roof. The appellant opened fire at the deceased from the gun of Man Singh. On receiving the gun shot injuries, the deceased fell down on the floor of the witness. The appellant further declared that he may kill 2-3 more persons on that day. The occurrence took place at about 3:30 PM. Thereafter, the witness intimated to Pradhan Deepa Rawat. The evidence of PW2 Devi Singh cannot be disbelieved on the ground that he had any prior enmity with the appellant. In fact, the evidence of DW1 Neeraj Kumar examined on behalf of the defence, has stated that on that day at about 8:00 to 8:30 AM in the morning he was at the house of Devi Singh for some time and he saw Anil Singh being present there. Thus, in fact, evidence of DW1 Neeraj Kumar in fact supposed the case of the prosecution and give credence to the evidence of PW2. Thus, the occurrence undisputedly took place in his house; therefore, he was a very natural witness of the occurrence. Moreover, the other witnesses that the Court proposed to discuss in the succeeding paragraphs would show that evidence of PW2 is receiving corroboration from the other witnesses.

11. PW3 Suma Devi is the wife of the said PW2 Devi Singh. She has stated that on that day, his husband has called Dheeraj Lal by calling at the phone. At that time, Anil Singh and Umed Singh were present. She served snacks to them and they were drinking the liquor and thereafter she went to the fields. She came at home at about 1:30 P.M. She saw that Dheeraj Lal and Anil Singh and her nephews Sanju and others were sitting there. She again went back to the fields. Thereafter, their nephews went away. At that time, Dheeraj and Anil Singh were arguing to each other. She told her husband that both the deceased and the appellant should be driven away from that place. Her husband intervened in the matter. She also went to the field. While she was in the fields, at about 3:30 PM she heard sound of gunshot. She saw from her fields that Anil Singh was holding a gun. She abused the said appellant. Anil Singh pointed out gun at her. Hence, she went to their house and found that Dheeraj Lal was lying dead in their house. Thereafter, the witness has further stated that Anil came to their house and stated that he will throw the dead body outside and further declared that he wanted to kill a monkey but the gunshot stuck the deceased. He was trying to get away the dead body but he was prevented by her. This witness has been crossexamined extensively and she has explained in the examination that their fields are situated near the Chak of their house. She also told that after firing the appellant went towards the house of Man Singh which is situated at about 1-2 minutes from the spot.

12. PW19 Puja was a young girl when she was examined. She aged about 19 years at the time when she was examined. She deposed in the Court on oath that on the date of occurrence she was present in her house. She has further stated that at the time of incident she was washing utensils and heard the gun shot and saw that the appellant Anil Singh was taking lower road taking the gun with him. She further found that Dheeraj Lal was lying in their house with bleeding injuries. She has further stated that she fainted seeing the incident.

13. Thus, it is clear that PW2 Devi Singh in whose house the occurrence took place was present at their house at the time of commission of the crime by means of a fire arm on the date of occurrence. His evidence receives corroboration from the statements of his wife, who was working in the nearby field. She stated that the appellant going away with a gun after the incident. PW19 has also saw the appellant, after hearing the gunshot sound, going by the lower lane on that day. All these three witnesses are the natural witnesses as the occurrence took place in the house of PW2 where PW3 and PW19 ordinarily reside. Though, cross-examined at length. The defene has not pointed out any substantial contradiction or discrepancy in their evidence.

14. In this case, the spot map has been prepared by the Investigating Officer. There is no dispute regarding the spot of occurrence raised by the defence at the stage of the trial or at the stage of hearing of this appeal. The evidence of PW2, PW3 and PW 19 also receive support from the evidence of PW16 Neeraj, PW17 Sukhpal Singh ad PW18 Sanju. PW16 Neeraj is the person, who was sent for getting additional bottle of liquor on being directed by appellant. PW17 Sukhpal and PW18 Sanju are the are nephews of PW2 who were present on the spot. They have also stated that the appellant was present there and the deceased came later on. Thus, the evidence of these witnesses together with the evidence of DW1, a witness examined on behalf of the defence, it is clear that the appellant was present at house of the PW2 Devi Singh.

15. The prosecution case further receives corroboration from the report of the ballistic examiner. The Forensic Science Laboratory’s report has been marked appearing at serial no. 42-Ka/1 reveals that on examination of material object-2 that the empty cartridge (khokha) seized from the spot and the gun was put to carefull examination. The report further reveals that the empty cartridge fired from the 12 bore SBBL Gun No. BE/473/1978. This piece of evidence is a very strong circumstance supporting the case of the prosecution.

16. The learned Senior Advocate Ms. Pushpa Joshi would further submit that the gunshot injuries could not have a round shape as it was fired from the lower level when the deceased was standing upon a open roof of PW2. This Court if of the opinion that such argument cannot be taken into consideration or given much weightage in view of clear cut testimony of PW2. PW2 Devi Singh is the eyewitness of the occurrence. He has categorically stated that the appellant fired at the deceased. The injuries taking round shape can also be possible while the decased was wearing his chappal (sleeper) and he might have bent a bit for that of this purpose. Thus, this argument of learned Senior Counsel is not acceptable to disbelieve the version of the prosecution witnesses of PW2, PW3 and PW19, specially, PW2.

17. The learned Senior Counsel would also submit that the investigation of the case is faulty and that Devi Singh had a gun in his house and that should have been sent before the ballistic expert for examination. It is settled principle of law that in a case where the defence alleges the faulty investigation, the entire prosecution case cannot be thrown out for the machinations shown by the Investigating Officer. Moreover, such a stand has never been taken by the appellant. For the first time, before the appellate court it has been stated that Devi Singh had a gun and he killed the deceased and falsely implicated the appellant. There are some suggestions regarding some money dues from Devi Singh to be paid to the appellant but except giving some bald suggestions there is no material on record to conclusively to come to a conclusion that there was prior enmity of PW2 with the appellant because of some money transactions. Also all the witnesses have stated that Devi Singh was present in his house. He was with his nephews and one Neeraj and thereafter the deceased came. They took liquor together and he cooked chcken and also he is a very natural witness of the occurrence.

18. Generally, eyewitnesses are classified into three categories. Namely, a witness, who is wholly reliable, a witnesses, who is wholly unreliable and/or a witness, who is neither wholly reliable nor wholly unreliable. In this case, this Court is of the opinion that Devi Singh PW2 is a wholly reliable witness. There is nothing in the evidence to come to the conclusion that he has deposed falsehood. Except giving certain suggestions about the prior enmity, the defence has not pointed out anything, to disbelieve this witness. Moreover, as stated above, he is a very natural witness to the occurrence as the occurrence took place in his house. However, this Court by way of abundant caution looked for independent circumstantial corroborations like, the testimonies of PW3 and PW19, who have seen the appellant going away after the sound of gunshot and a taking a gun in his hand from the house of the witnesses. The spot of occurrence as evident from the site plan and other documents is also not disputed. The investigating Officer has objectively determined the spot. The medical evidence in this case is also clearly supporting the evidence of PW2 in the sense that the Doctor has found pellet injuries in the dead body of the deceased and exit wound on his back. He was very categorical in his opinion upon the postmortem examination of the deceased that deceased has died due to shock of firearm injuries. The Forensic report regarding Ballistic examination of the gun also supports the case of the prosecution in the sense that the expert has given his opinion to the effect that the khokha, which was recovered from the spot was fired from that gun and it was 12 bore SBBL gun. The evidences of two other witnesses, like, PW12 Man Singh and and PW9 his wife Smt. Sarita Devi have stated that the appellant is cousin of Man Singh and that he was in visiting terms with them. On that date, both of them were absent and, the gun was kept inside the house and, therefore, it is clear that the appellant has taken the gun from the house of his cousin which was kept in his house. It is all the more natural that the appellant knew that the Man Singh had a gun because he is his cousin. Such additional evidence also supports the case of the prosecution.

19. Thus, this Court is of the opinion that the evidence of PW2 is receiving credible corroboration from the attending and objective circumstances of this case which makes the evidence of the prosecution witnesses and specially the evidence of PW2 more credible and there is no need to disbelieve the case of the prosecution on the basis of suggested case of the defence.

20. The alternative argument of learned Senior Counsel for the appellant that since there was a dispute between the deceased and the appellant and then occurrence took place, the offence of murder is not made out, rather he may be the guilty of the offence of culpable homicide not amounting to murder. However, this Court from the analysis of the material finds that after departure of the nephews of PW2 Devi Singh there was an altercation between the deceased and the appellant and others and Devi Singh seprated each other. Thereafter, the appellant went towards his house. 15-20 minutes thereafter, he returned to the house of Devi Singh and when the deceased was putting on his footwear on the open roof, the appellant took a gunshot resulting in serious injuries which resulted in his death. Thus, this cannot be said to be a sudden quarrel in which the appellant committed the homicide of the deceased in a moment of passion. Rather he had an opportunity to think clearly and then he went to the house of Man Singh, picked up his gun and came after 15-20 minutes and took a shot at the deceased. This reveals that he had a premeditation of committing the murder. In order to apply the exception 4 of Section 300 of the Penal Code, the Court must be satisfied that the occurrence took place without premeditation, in course of sudden fight in a heat of passion and the appellant should not have taken undue advantage or have acted in a cruel manner. Firstly, the shooting of the deceased took place about 15 to 20 minutes after the altercation and the appellant went the house of Man Singh and picked up his gun and fired at the deceased. So the occurrence did not take place in a heat of passion rather the appellant had premeditated his action. Moreover, he acted in a very cruel manner and took shot from the seized gun, at the deceased. Therefore, this Court is of the opinion that this is not a case, which can be said to be a culpable homicide not amounting to murder punishable under Section 304 of the Code. Thus, this Court is of the opinion that the appellant has been rightly convicted for the offence of murder and has rightly been convicted under Section 302 of the Code and has been sentenced to life imprisonment and to pay a fine of Rs. 20,000/- with default sentence. Hence, this Court is of the further opinion that the prosecution has proved its case beyond all reasonable doubts. The appeal is dismissed.

21. The appellant has been granted bail by this Court in this case. He is directed to surrender before the Court of learned Sessions Judge, Pauri Garhwal to serve the remainder of the sentence. The copy of the judgment along with the Trial Court Record be sent back forthwith to the learned District Court for initiating recommittal procedure.