Harnam Singh, J.
1. By this order I dispose of Criminal Appeal No. 411 of 1953 and Criminal Revision No. 1050 of 1953.
2. In Criminal Trial No. 11 of 1953 the Additional Sessions Judge, Karnal, has convicted Ajmer Singh under Part II of Section 304, Penal Code, hereinafter referred to as the Code, and sentenced him to suffer rigorous imprisonment for ten years. In that trial the Additional Sessions Judge has convicted Mehr Singh and Ishar Singh under Section 323 of the Code and Jai Singh under Section 324 of the Code and sentenced each of them to suffer rigorous imprisonment for six months.
3. In Criminal Appeal No. 411 of 1953 Ajmer Singh, Mehr Singh, Ishar Singh and Jai Singh are the appellants. In dealing with that appeal Soni J. has called upon Ajmer Singh to show cause why he should not be convicted under Section 302 of the Code and has, acting in the exercise of revisional jurisdiction, called upon Ajmer Singh, Mehr Singh, Ishar Singh and Jai Singh to show cause why the sentences imposed upon them should not be enhanced.
4. Brictly summarised, the facts of the prosecution case are these:
On 28-2-1953 Kesho P W. 2, Banwari P. W. 4, Biru P. W. 5, Churia P. W. 6, Bahadar Singh P. W. 7 and Hans Raj were playing 'kabaddi' in front of the 'baithak' of the Sainis at 9 a. m. when Ajmer Singh, Hardam Singh and Mehr Singh, sons of Puran Singh, and Amar Singh came up and wanted to play 'kabaddi' with them. Kesho, Banwari, Biru, Churia, Bahadar Singh and Hans Raj refusing to play 'kabaddi' with Ajmer Singh, Hardam Singh, Mehr Singh and Amar Singh, there was exchange of abuses and altercation between them. Ajmer Singh, Hardam Singh, Mehr Singh and Amar Singh left the place threatening that they would deal with them.
Fearing lest there may be some trouble Kesho, Banwari, Biru, Churia, Bahadar Singh and Bans Raj brought 'lathis' from their houses and sat in front of the 'baithak' of Sainis. In the meanwhile Ajmer Singh, Hardam Singh, Mehr Singh, Jagir Singh, Ishar Singh, Jait Singh and Amar Singh came to the spot, Ajmer Singh, Hardam Singh and Amar Singh armed with a gun each, Jai Singh armed with 'takwa' and Mehr Singh, Ishar Singh and Jagir Singh armed with a lathi each.
On their arrival in front of the 'baithak' of the Sainis Ajmer Singh and his companions attacked Kesho, Banwari, Biru Churia, Bahadar Singh and Hans Raj. Ajmer Singh fired gunbitting. Hans Raj in the abdomen, Hardam Singh fired gun hitting Kesho. Amar Singh fired gun but no injury was caused. Kesho, Banwari, Biru Churia and Bahadar Singh gave lathi blows to Ajmer Singh, Mehr Singh, Amar Singh and Jai Singh. In the incident Hardam Singh accused Mehr Singh accused, Raunaq P. W. 8, Daliu P. W. 9 and Bhana P. W. 10 were not injured.
5. Kesho P. W. 2 made the first information report, Exhibit P. V., at police Station Paheva on 1-3-1953 at 8 a.m.
6. Assistant Sub-Inspector Jiraj Singh P. W. 19 recorded the statement of Hans Raj, Exhibit P. H/1, on 1-3-1953 at 9 a. m. Hans Raj died on 1-3-1953, at 1-30 p.m.
7. Dr. K. N. Dutt P. W. 3 performed 'post mortem' examination on the body of Hans Raj. In that examination he found an oval penetrating gunshot wound on the left side of the abdomen. In the opinion of Dr. K N. Dutt gunshot wound suffered by Hans Raj was sufficient in the ordinary course of nature to cause death.
8. In the examination of Banwari P. W. 4, Dr. Beli Ram found three contusion marks, one incised wound, one contused wound and one linear abrasion. In the examination of Churia P. W. 6, Dr. Beli Ram found one contused wound and six contusion marks. Dr. Beli Ram found four contusion marks on the person of Biru P.W. 5 and three contusion marks on the person of Bahadar Singh P. W. 7.
9. On 1-3-1953, Dr. Beli Ram found two bullet wounds, one of entry and one of exist, and one contusion mark on the person of Kesho P. W. 2.
10. In the examination of Ajmer Singh accused Dr. Beli Ram found one contused wound and two contusion marks. In the examination of Mehr Singh accused, Dr. Boli Ram found one contused wound and four contusion marks. In the examination of Ishar Singh accused two contused wounds and one contusion marks were found.
In the examination of Jai Singh ono contusion mark and one contused mark were found. In the opinion of Dr. Beli Ram injuries found on the persons of the prosecution witnesses and those on the persons of the accused were of the same duration.
11. In the Court of Session, Kesho P. W. 2, Banwari P. W. 4, Biru P. W. 5, Churia P. W. 6, Bahadar Singh P. W. 7, Raunaq P. W. 8, Dallu P. W. 9 and Bhana P. W. 10 gave evidence for the prosecution.
12. In examination under Section 342, Criminal P. C., the defence of Hardam Singh and Amar 8ingh was denial 'simpliciter'.
13. In examination under Section 342, Criminal P. C., Ajmer Singh, Mehr Singh, Miar Singh and Jai Singh maintained that on the occasion of the annual Holi fair on 28-2-1953 village people being drunk threw crackers at each ether. In that incident there was indiscriminate interchange of blows between those present and it was possible that the prosecution witnesses may have received injuries at their hands. Mehr Singh, Ajmer Singh, Ishar Singh and Jai Singhstated that they were also injured in that incident.
14. Shri Ram Chandar D. W. 1 and Head Constable Bant Parkash Singh D. W. 2 gave evidence for Hardam Singh accused.
15. In deciding the case the Additional Sessions Judge has given the benefit of the doubt to Kardam Singh and Amar Singh and acquitted them.
16. From a perusal of the record it is plain that no reliance can be placed upon the evidence given by Raunaq P. W. 8 and Bhana P. W. 10.
11-19. (His Lordship went through evidence of these witnesses and proceeded:)
20. From what I have said above, it is plain that Raunaq P. W. 6 and Bhana P. W. 10 have nc idea of the sanctity of the oath. In this connection copy of the challan in Criminal Case No. 37/2 of 1952, Exhibit D. W. 2/A, and copies of memos, Exhibit D. W. 2/B, D. W. 2/C, D. W. 2/D, D. W 2/E and D. W. 2/P, may be read with the evidence given by Shri Ram Chandar D. W. 1 and Head Constaole Sant Parkash Singh D. W. 2.
21. Dallu P. W. 9 gave evidence that on hearing noise he went to the 'baithak' of Sainis. Going there he saw Aimer Singh, Mehr Singh, Ishar Singh, Jai Singh, Amar Singh and Hardam Singh facing Hans Raj, Banwari. Biru, Bahadar Singh, Churia and Kesho. In cross-examination Dallu stated that Sainis were armed with 'lathis' while the accused were armed with guns and lathis'. In the Court of Session Dallu gave evidence that he asked the parties not to fight but neither party puid any heed.
22. Rikhi, father of Dallu P. W. 9, is uncleof Banwari and Biru. In the incident Raunaq,Dallu and Bhana were not injured. In the dyingdeclaration, Exhibit P. H/l, Raunaq, Dallu andBhana were not mentioned to have witnessed theoccurrence.
23. For the foregoing reasons, I have in determining the guilt of the appellants excluded from consideration the evidence given by Raunaq P. W. 3. Dallu 'P. W. 9 and Bhana P. W. 10.
24. In the first information report, Exhibit P. V, Kesho P. W. 2 stated that they had out of fear brought 'lathis' from their houses. In the investigation Banwari, Bira, Churia and Bahadar Singh stated that on the departure of Ajmor Singh, Hardam Singh, Mehr Singh and Amar Singh they had gone to their houses to fetch 'lathis' In the Court of Session Kesho, Banwari, Biru and Churia maintained that on the departure of Ajmer Singh, Hardam Singh, Mehr Singh and Amar Singh they had not gone to their houses to fetch 'lathis'.
25. Banwari P. W. 4 and Biru P. W. 5 are real brothers. Rikhi. father of Dallu P. W. 9, is uncle of Eanwari and Biru. Hans Raj deceased was collateral of Kesho and Biru in the second or third decree. Bahadar Singh P. W. 7 is son of Kalu who gave evidence against Hardam Singh in Criminal Case No. 37/2 Of 1952.
26. Kesho P. W. 2 gave evidence that prior to the incident there had been no dispute orquarrel between the parties. On a perusal of the record I find that the evidence given by the prosecution witnesses that Ajmer Singh, Hardara Singh, Mehr Singh and Amar Singh left the spot threatening that they would deal with Hans Raj, Kesho, Banwari, Biru, Churia and Bahadar Singh cannot be accepted. In my opinion, there arose dispute between Hans Raj, Kesho, Banwari, Biru, Churia and Bahdar Singh on the one side and Ajmer Singh, Mehr Singh, Ishar Singh, Jagir Singh and Jai Singh on the other side over the piaymg of 'kabaddi'. In that incident there was exchange of 'lathi' blows and Ajmer Singh fired his gun to scare away the Sainis. In that act two stray pellets hit Kesho P. W. 2 and Hans Raj. Seeing Kesho P. W. 2 and Hans Raj injured Ajmer Singh withdrew and did not take any further part in the incident.
27. In deciding the case the Additional Sessions Judge thought that the case fell within Section 83 of the Code. As held by the House of Lords in -- 'Director of Public Prosecutions v. Beard', 1920 AC 479 (A), evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink, so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts. That being the position of matters, Section 86 of the Code has no application to the facts of the case.
28. In arguing the appeal it was not said by the Assistant Advocate-General that the act of. Ajmer Singh fell within clauses firstly, secondly or thirdly of Section 300 of the Code. Clause fourthly of Section 300 of the Code provides:
'If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.'
29. Illustration (d) appended to Section 300, fourthly, of the Code reads:
'(d). A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.'
In the present case Ajmer Singh had no motive to cause the death of Hans Raj or of any other person. In the altercation that arose Ajmer Singh seems to have fired his gun in the air to scare away the opposite party and in that act one stray pellet caused gunshot wound to Hans Raj which proved fatal. In these circumstances, I have no doubt that Ajmer Singh caused the death of Hans Raj with the knowledge that he was likely by such act to cause death but without knowing that the act was so imminently dangerous that it must, in all probability, cause death or such bodily injury as was likely to cause death.
30. For the foregoing reasons, I maintain the conviction of Ajmer Singh under Part II of Section 304, of the Code but reduce the sentence imposedupon him to rigorous imprisonment for seven years.
31. In arguments it was not said that the sentences imposed upon Jai Singh, Mehr Singh and Ishar Singh were inadequate. As stated hereinbefore, Jai Singh, Mehr Singh and Ishar Singh appellants on the one side and Banwari P. W. 4, Biru P. W. 5. Churia P. W. 6 and Bahdar Singh P. w. 7 on the other side began to exchange blows with 'lathis' when Hans Raj had fallen.
32. In the result, I allow Criminal Appeal No. 411 of 1953 to the extent of reducing the sentence imposed upon Ajmer Singh to rigorous imprisonment for seven years. In all other respects Criminal Appeal No. 411 of 1953 fails and is dismissed.
33. On the finding given above, Criminal Revision No. 1050 of 19a3 fails and is dismissed 'in toto'.
34. Ajmer Singh, Mehr Singh and Jai Singh sons of Puran Singh along with another brother of theirs Hardam Singh, and Ishar Singh and Amar Singh were tried for murder under Section 302 read with Section 149, Penal Code, and several other offences. Of them Ajmer Singh was convicted under Section 304, Part II, Penal Code, and sentenced to ten years' rigorous imprisonment, and Mehr Singh, Jai Singh and Ishar Singh were variously convicted under comparatively minor Sections 323 and 324, Penal Code, and were sentenced to six mouths rigorous imprisonment each, and the two others were acquitted.
Ajmer Singh and other convicts appealed to this Court and on 2-9-1953 Soni J. issued notice to Ajmer Singh to show cause why he should not be convicted under Section 302, Penal Code, and notice was given to others for enhancement of the sentences.
35. The incident is stated to be of the night between 28-2-1953 and 1-3-1953, the prosecution case being that at about 9 p.m. on the Holi night when it was full moon some Saini boys including witnesses for the prosecution were playing 'kabaddi' in the common land near the 'baithak' of Sainis who own about 1,000 bighas of land and consist of about twenty-five families in the village.
Ajmer Singh, Hardam Singh, Mehr Singh and Amar Singh accused came to the place and wanted to join the game but the Saini boys refused to allow them to do so, which resulted in exchange of abuse. The four accused persons challenged the party of the complainants saying that 'they would see to it' and went away.
A little later accompanied by Jai Singh, and Ishar Singh they returned. Of them Ajmer Singh, Amar Singh and Hardam Singh had guns, Jai Singh had a 'takwa' and Ishar Singh and Mehr Singh had 'lathis'. Ajmer Singh fired his gun at Kans Raj deceased and he was hit in the abdomen. Hardam Singh is stated to have fired a second shot which hit Kesho (P.W. 2), and Amar Singh fired a third shot which hit no one. Hans Raj fell down and after that Jai Singh hit Banwari P.W. with his 'takwa'.
Ishar Singh and Mehr Singh attacked with their 'lathis' and Banwari, Churia and Bahadar Singh, all witnesses for the prosecution, were injured, and it is stated that in their self-defence they also inflicted certain injuries on the party of the accused. Three other persons Raunaq (P.W. 8), Dallu (P.W. 9) and Bhana (P.W. 10) also arrived and are stated to have witnessed the occurrence.
36. Hans Raj was then taken to his house and at dawn he was taken in a cart to the Civil Dispensary at Pehowa where he died at 1.30 p.m. The other injured persons were also examined and their injuries taken down by Dr. Beli Ram Jam who is a witness in the case. Kesho CP.W. 2) made the first information report.
37. Hardam Singh and Amar Singh accused pleaded 'alibi' and the other four accused stated that people were drunk on the Holi night and were throwing crackers and 'it is possible that the prosecution witnesses may have received injuries at the hands of the accused', but this defence was rejected by the trial Court.
38. In regard to Ajmer Singh and Mehr Singh the learned trial Judge came to the conclusion that they were 'in a state of intoxication' and as he found that the gun had been fired by Ajmer Singh as a result of which Hans Raj died he applied Section 86, Penal Code and reduced the offence to one under Section 304, Part II holding that the matter fell under Section 239, Penal Code, and as he found that Section 149 was inapplicable as also Section 34, he convicted Mehr Singh, Ishar Singh and Jai Singh of minor offences as I have stated above.
39. In support of the prosecution there is first of all the evidence of the eye-witnesses and the prosecution evidence seems to be unanimous that the injury which was caused to Hans Raj was the result of the firing fay Ajmer Singh. The witnesses in support of this are Kesho (P.W. 2) who himself had a gun-shot injury, Banwari (P.W. 4) who stated that Ajmer Singh was the person who fired the first gun-shot, Biru (P.W. 5), Churia (P.W. 6), Bahadar Singh (P.W. 7), Raunaq (P.W. 8), Dallu (P.W. 9) and Bhana (P.W. 10) who have made similar statements. All these witnesses have stated that Hardam Singh and Amar Singh also fired their guns but after considering the whole of the evidence the learned Additional Sessions Judge has given the benefit of doubt to Hardam Singh and Amar Singh and they have been acquitted.
40. Besides the evidence of these witnesses there is a dying declaration of Hans Raj recorded by Jiraj Singh, Assistant Sub-Inspector (P.W. 19), in the presence of Dr. Beli Ram Jain, Assistant Surgeon, who was in charge of the Civil Dispensary at Pehowa. This was at 8.30 a.m. on 1-3-1953. According to the doctor, Hans Raj was in his senses. He was neither prompted nor instructed by anybody else while he was making the statement. In that statement Hans Raj stated that Ajmer Singh and others began to create disturbance while the party of the complainants were playing 'kabaddi' and there was exchange of abuse and the accused persons left. Ajmer Singh, Hardam Singh and Amar Singh broughtguns and Ajmer Singh fired the first shot which hit Hans Raj.
41. We have been taken through the evidence of the eye-witnesses and I cannot see any reason to doubt their testimony in regard to the firing by Ajmer Singh of the first shot, it is true that a large number of relations have been prosecuted in this case, but the learned Judge has, in my opinion, rightly given the benefit of doubt to two of them Amar Singh and Hardam Singh, and I agree with the learned Judge that it was the shot fired by Ajmer Singh which hit Hans Raj and in my opinion Kesho also.
42. The learned Judge seems to have taken an erroneous view in regard to the application of Section 86, Penal Code to the facts of this case.
A large number of eye-witnesses were examined and it was only when Bhana (P.W. 10) was in the witness-box that a question was put at the instance of the assessors as to the state of intoxication of the accused persons. This question had not been put to any other witness. Bhana was asked at the instance of the assessors and he replied:
'I do not know whether either or both of theparties were drunk at the time of the incident.' On being cross-examined he stated at p. 36, line 54 of the printed paper book, 'I do not know whether they were drunk or not', reference beingto the party of the accused.
Then he went on to say:
'I did not state before the Committing Magistrate that the accused persons were drunk andwere intoxicated when they first came. (PortionB to B in the statement of the (witness) readover to the witness. He denies having madethis part of the statement before the Come.mitting Magistrate).'
The learned Judge dealing with this part of the case was of the opinion that no formal order under Section 288, Criminal P. C. was necessary and that the evidence which had been given before the Committing Magistrate in regard to these persons being drunk and intoxicated could be read as substantive evidence in the case. The Supreme Court has in recent cases pointed out the method of using statements made before Committing Magistrate under Section 288, Criminal. P. C., and the procedure adopted by the learned Judge is contrary to those cases: see -- 'Tara Singh v. State', AIR 1951 SC 441 (B); and --'Bhagwan Singh v. State of Punjab', AIR 1952 SC 214 at p. 217 (C).
And even if one were to take it that the accused persons had taken some liquor the question will still be whether the case falls under Section 86, Penal Code, which provides:
'86. In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.'
The facts found in the present case do not bring the case under Section 86, Penal Code and the finding of the learned Judge is opposed to the law as laid down in '1920 AC 479 (A)' which was approved of by the Lahore High Court in --'Sheru v. Emperor', AIR 1926 Lah 232 (D), where it was held that evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequence of his acts.
43. The evidence shows that the party of the complainants were playing 'kabaddi' in front of the Sainis' 'baithak' and the accused persons wanted to participate in it, to which the Sainis objected which was followed by an exchange of abuse. Even if we accept the statement of the prosecution that the party of the accused went away and came back armed with guns and several other lethal weapons there is no indication from the injuries caused that there was any intention to cause murder. 'It was a stray pellet which struck Hans Raj and unfortunately at a vital part of his body and it was another stray pellet which struck Kesho.
From the injuries it cannot be concluded that Ajmer Singh appellant fired at the Sainis at any very close range and the fact that only two pellet and stray ones at that had struck the deceased and Kesho negatives that particular intention. This case would not, in my opinion, fall under Section 302 but would more appropriately fall under Section 299, Penal Code, i.e., the act was done with the knowledge that such an act was likely to cause death, and therefore the offence is one of culpable homicide and would fall under Section 304, part II, Penal Code.
44. I would therefore hold that the appellant Ajmer Singh is guilty under Section 304, Part II, Penal Code, as the act of Ajmer Singh was without any intention to cause death but was with the knowledge that it was likely to cause death. I would therefore affirm the conviction of Ajmer Singh appellant but would reduce his sentence to one of seven years' rigorous imprisonment.
45. I do not think any case has been made out for interference with the convictions of the other appellants and I would therefore dismiss their appeal. They have already served out their sentences and no question of reduction of sentences arises.
46. As I have held that the case falls under Section 299, Penal Code, the rule issued by this Court would stand discharged. I would therefore agree with my learned brother Harnam Singh J.