S.N. Modi, J.
1. This appeal arises out of the judgment of the Sessions Judge, Kota, dated January 29, 1973, convicting and sentencing Janardan Prasad. the appellant, to life imprisonment for the murder of Mool Chand.
2. The incident, to which this case relates, took place in Kota on April 14, 1972 at about 1.15 p.m. at the shop of P.W. 9 Gopi Chand. On the date of the incident, the appellant was holding the post of Sub-Inspector of Police. At about 12 noon on that day, the appellant, the deceased and P.W. 10 K.P. Mehta assembled at the shop of P.W. 9 Gopi Chand, and all of them including Gopi Chand commenced taking drinks. The appellant had a revolver Ex. 1 with him in a leather case. He took out the revolver Ex. ]. from the leather case. He loaded it with cartridges and commenced cleaning it. Soon thereafter, all of a sudden, a report of a gun fire was heard and Mool Chand, the deceased, who was sitting in front of the appellant on a bench, fell down on the ground and died instantaneously on account of a bullet injury received on the chest from the revolver Ex 1. P.W. 9 Gopi Chand immediately contacted on telephone Police Station, Naya Pura, Kota, and informed P.W. 17 Ghanshamdas, Assistant Sub-Inspector of Police, that at his shop, the revolver went off from the hands of the appellant and it resulted in the death of Mool Chand. On receipt of the above information, P.W. 17 Ghanshyamdas along with two constables proceeded to the shop of Gopi Chand, and there he was told by the appellant that Mool Chand died as the revolver went off accidentally. P.W. 17 Ghanshyamdas recovered revolver Ex. 1 from the shop of P.W. 9 Gopi Chand. It was lying on a stool and its leather case was found lying beneath the stool. P.W. 17 Ghanshyamdas further found the revolver loaded with cartridges. He removed all the cartridges from the revolver and found one of the cartridges empty. He sealed all these articles and sent them to the ballistic expert. The post-mortem examination on the dead body of Mool Chand was performed by P.W. 11 Dr. Ram Kumar. He found the following external injuries,-
1. Gun-shot wound 1/4'X1/4' on the front of right side of the chest at the upper angle of the sternum (wound of entry), with right fourth coastal cartilege, third inter coastal space.
2. Abrasion 1/4'x1/2' on the right loin.' On internal examination, the doctor found that there was 'a fracture of lateral margin of sternum and upper margin of the right fourth coastal cartilege piercing through pluera, right lung (middle lobe) with haemothorax (right side)'. The doctor also took out the bullet lying under the skin 1/2' left to the middle line. According to the doctor, injury No. 1 was sufficient in the ordinary course of nature to cause death. The doctor further opined that death of Mool Chand was caused due to the injury to the heart and the right lung.
3. After usual investigation, the police put up a challan against the appellant under Section 302, I.P.C. in the Court of Additional Munsiff-Magistrate No. 2, Kota, who after holding inquiry under Section 207, Code of Criminal Procedure (old), committed the appellant for trial to the Court of Sessions Judge, Kota. The appellant pleaded not guilty.
4. The prosecution examined 10 witnesses, of them P.W. 1 Chiranjilal, P.W. 9 Gopi Chand and P.W. 10 K.P. Mehta, appeared as eye-witnesses to the occurrence.
5. After the close of the prosecution evidence, the appellant was examined under Section 342, Criminal P.C. (old). The appellant in his statement admitted his presence at the shop of Gopi Chand at the time of the incident. He further admitted that he took revolver Ex. 1 from the office of the Superintendent of Police, Kota, on the date of the incident. He further admitted that the revolver was with him when he went to the shop of Gopi Chand. He also admitted that at the time when the. incident took place, the deceased was sitting opposite to him. He denied that at the time of explosion, the revolver Ex. 1 was in his hands, or in his lap. According to him, the revolver Ex. 1 at the relevant time was lying on the ground. One witness was examined in defence but his evidence is not material.
6. It is not necessary to deal at length with the evidence relating to the fact and cause of death of Mool Chand because it is conceded even by the appellant's learned advocate that there is absolutely no doubt about the fact that Mool Chand died on account of gun shot injury on April 14, 1972. The main point to be determined in this appeal is whether it was the appellant who fired at the deceased with the revolver Ex. 1 and whether this firing was accidental or intentional.
7. As already pointed out above, the direct evidence consists of the statements of P.W. 1 Chiranjilal, P.W. 9 Gopi Chand and P.W. 10 K.P. Mehta. The testimony of P.W. 1 Chiranjilal has been disbelieved by the learned Sessions Judge. The latter has found that the witness was not present at the time the incident took place. The learned Sessions Judge has further found that he was brought forward by the relatives of the deceased to give weight to the prosecution. We have examined his statement very minutely and we have no hesitation to say that he is totally a false witness, and the learned Sessions Judge was fully justified in rejecting his testimony. The learned Sessions Judge has discussed his evidence at length and found it full of infirmities. Suffice it to say that the witness, by occupation, is a beggar. His presence near about the scene of occurrence at the time of incident was discovered after a period of 70 days and that too when one of the relations of the deceased took him to the investigating officer. In these circumstances, we are convinced that his testimony deserves to be discarded in toto.
8. The next important witness is P.W. 9 Gopi Chand. The incident took place at his shop. His presence therefore at the time and the place of the incident cannot be doubted. His evidence shows that when the appellant came to his shop he (appellant) possessed with him revolver Ex. 1. He took out that revolver from the leather case and showed it to the witness. The witness then says that the revolver was loaded and replaced in the leather case. The witness further says that when he and K.P. Mehta were talking, suddenly there was an explosion and Mool Chand, who was sitting by his side, fell down on the ground. His evidence also shows that soon before the explosion, he went out-side his shop to make water and when he returned to his shop, he saw the revolver Ex. 1 lying in the lap of the appellant. It was also stated that no other person at the shop, i.e. he, or K.P. Mehta or Mool Chand deceased, possessed any revolver. Soon after the incident, the witness conveyed the information about the incident on telephone to the police station Nayapura. He informed the police that one man had expired accidently from the revolver of Janardan Prasad. This witness was declared hostile by the learned Sessions Judge at the request of the learned Public Prosecutor as he had resiled from his previous statement recorded under Section 161, Criminal P.C. (old). On being cross-examined by the learned Public Prosecutor, he denied having stated in his previous statement that the revolver accidentally went off when the appellant commenced cleaning it.
9. The next witness is P.W. 10 K.P. Mehta. His evidence is that when he reached Gopi Chand's shop, the deceased, the appellant and P.W. 9 Gopi Chand were taking drinks, and the revolver Ex. 1 was lying in the lap of the accused. The witness further says that when he was talking with P.W. 9 Gopi Chand, suddenly there was an explosion, and Mool Chand, who was sitting in front of the appellant, fell down on the ground. This witness too was declared hostile by the learned Sessions Judge at the request of the learned Public Prosecutor, as he too had resiled from his previous statement recorded under Section 161, Code of Criminal Procedure (old). The witness, on being cross-examined by the learned Public Prosecutor, said that the incident took place at the time when the appellant was cleaning the revolver.
10. The learned Sessions Judge found the appellant guilty of murder on circumstantial evidence. He relied upon the following circumstances,-
1. That the accused was inside the Ajanta Medical Store (Gopi Chand's Shop) at the time of the incident and was sitting opposite to Mool Chand deceased.
2. That none other than the accused was carrying a revolver and the revolver was loaded.
3. That a report of gun shot was heard and Mool Chand fell on the ground with his face downwards and it was seen that there was a bullet injury on his chest.
4. That before the report of a gun fire was heard and Mool Chand was lying on the ground, the revolver was with the accused.
In our opinion, the above circumstances, even if proved, are not such so as to lead to the only inference that the appellant fired at the deceased intentionally. They are not consistent only with the hypothesis of the guilt of the appellant under Section 302, I.P.C. In our opinion, they could not exclude the possibility that the revolver might have went off accidently and caused the death of the deceased. They also do not exclude the possibility that the death of the deceased was caused on account of rash and negligent handling of the revolver by the accused. In drawing the inference as to the guilt of the appellant under Section 302, I.P.C. from the aforesaid circumstances, we cannot forget that the deceased and the appellant must have assembled at the shop of Gopi Chand as friends and that is why they commenced taking drinks at the shop. There is nothing on the record to show that the appellant and the deceased ever had any quarrel in the past. There is also nothing to show that the appellant picked up any quarrel with the deceased soon before the incident. The prosecution has not attempted to suggest any motive for the offence Taking the over all picture of the evidence produced in the case, the circumstances relied upon by the learned Sessions Judge are, in our opinion, not such as to exclude hypothesis other than the guilt of the accused under Section 302, I.P.C. In this view of the matter, the judgment of the learned Sessions Judge is of no assistance in the present case.
11. Now, in the light of the direct evidence produced by the prosecution, the question that arises is whether the offence made out against the accused is that of murder The word 'murder' is defined in Section 300, I.P.C, which provides as follows:
300. Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death.
Secondly-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the persor. to whom the harm is caused,-
3rdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
4thly.-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 of such injury as aforesaid.
(Exceptions 1 and 5 omitted).
So far as the first 3 clauses are concerned, they can have no application in the present case, even if the statements of the eye-witnesses are taken on their face value. The prosecution evidence does not disclose that the appellant deliberately aimed his revolver and shot at the deceased. In absence of such evidence, it is not possible to attribute to the appellant the intention of causing bodily injury to the deceased. Even Mr. Mathur, the learned Public Prosecutor has not argued before us that the case can be brought under any of the first 3 clauses of Section 300, I.P.C. It must therefore be taken that none of the first 3 clauses of Section 300, I.P.C. is applicable to the present case.
12. Mr. Mathur's contention is that the appellant at the relevant time was holding the post of a Sub-Inspector of Police. He, therefore, cannot be regarded as a person having no knowledge about the dangerous character of a loaded revolver. His further contention is that the evidence of P.W. 10 clearly shows that the appellant was cleaning a loaded revolver, which according to Mr. Mathur, was an imminently dangerous act specially when there was no safety catch attached to the revolver. The above facts, according to Mr. Mathur, are sufficient to bring the case within the ambit of Clause 4 of Section 300, I.P.C.
13. The question therefore that arises is whether Clause 4 of Section 300, I.P.C. can be applied to the present case. The earlier part of this clause refers to the cases where the act of the accused is itself so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death. The emphasis in the preceding part of Clause 4 is on the imminently dangerous nature of the act itself. Since the appellant was the Sub-Inspector of Police at the relevant time, it can safely be said that he must be knowing the dangerous character of a loaded revolver having no safety catch attached to it. Even if such a knowledge be imputed to the appellant, the act of cleaning of a loaded revolver cannot, by itself, be regarded as an act of such a nature as must, in all probability, cause death. Further, Clause 4 is usually applied where the act of the offender is in general disregard for human life and safety. The act of a person practising feats of archery by aiming his arrow at the cap of a human being walking at some distance or of a mother leaving a newly born babe in the open, might provide an instance of it. In our opinion, it is unusual to expect death in a case where a person is cleaning a loaded revolver without a safsty catch. In any case, under Clause 4, the degree of probability or likelihood of the act resulting in fatal harm, is of the highest level. This degree of knowledge cannot be fastened on the appellant in the present case, nor can the degree of probability or likelihood to the extent required under Section 300, Clause 4 be attributed to the act in question, namely, cleaning of the loaded revolver. The conclusion, to which we have reached, would bring the case out of Clause 4 of Section 300, I.P.C. We, therefore, cannot sustain the conviction of the appellant under Section 302, I.P.C.
14. We may also point out that, in the present case, the act of the appellant also does not fall within the purview of the provisions of Section 304, I.P.C. As already indicated above, there is no evidence to prove that the appellant had any intention to cause death or of causing such bodily injury as is likely to cause death. Again, there is no such evidence, by which knowledge can be attributed to the appellant that the act of the appellant was likely to cause death. The appellant, in the circumstances, cannot be convicted under Section 304, I.P.C. also.
15. Mr. Mathur's next contention is that the appellant was grossly negligent and rash in the manner in which he acted and, therefore, he is liable to be guilty of offence punishable under Section 304A I.P.C. Elaborating his argument, Mr. Mathur has contended that there was no occasion for the appellant to load the revolver at the shop of Gopi Chand and once he loaded it, it was expected of a police officer like him to be very careful in cleaning the revolver, specially when there was no safety catch attached to the revolver. The above facts, according to Mr. Mathur, are sufficient to bring home guilt to the appellant under Section 304 I.P.C.
16. On the other hand, it is contended by Mr. T.C. Mehta, learned Counsel for the appellant, that the criminal liability under Section 304A, I.P.C. cannot be imposed on the appellant as it has not been established that the death of the deceased was the direct result of the rash and negligent act on the part of the appellant. According to the learned Counsel, no such rash and negligent act has been proved, which was the proximate cause resulting in the discharge of the revolver. In this connection, emphasis is laid on the absence of any reliable evidence pointing to the fact that the revolver was lying in the lap of the appellant and that he was cleaning it. It is contended that the evidence of P.W. 9 and P.W. 10 in this connection cannot be acted upon as both of them were declared hostile and the prosecution was permitted to cross-examine them. In support of his contention, Mr. Mehta places reliance on the decision in Jagir Singh v. State, (Delhi Administration) : 1975CriLJ1009 . In this case, their Lordships of the Supreme Court, in para. 7 of their judgment, observed,-
Now, it is apparent from the judgment of the High Court that the convition of the appellant rested entirely on the evidence of Pritam Singh (P.W. 10) and Sajjan Singh (P, W. 13). Swaran Singh (P.W. 11) was also examined on behalf of the prosecution but his evidence is of no help to the prosecution because he went back on the story of the prosecution and was permitted to be cross-examined on behalf of the prosecution. It is new well settled that when a witness, who has been called by the prosecution, is permitted to be cross-examined on behalf of the prosecution, the result of that course being adopted is to discredit that witness altogether and not merely to get rid of a part of his testimony.
Their Lordships of the Supreme Court, again examined the question as to the worth of a prosecution witness, who has been declared hostile and cross-examined by the prosecution. In Sat Paul v. Delhi Administration : 1976CriLJ295 , their Lordships explained their observations in Jagir Singh's case. Their Lordships, after a review of several previous decisions, observed,-
From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and. contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.
It was in the context of such a case, where, as a result of the cross-examination by the Public Prosecutor, the prosecution witness concerned stood discredited altogether that this Court in Jagir Singh v. State (supra), with the aforesaid rule of caution- which is not to be treated as a rule of law - in mind, said that the evidence of such a witness is to be rejected en bloc.
The aforesaid two cases were decided by a Bench of two Judges of the Supreme Court. The latest case cited before us on this point is Bhagwan Singh v. State of Haryana : 1976CriLJ203 . This case was decided by a Bench of three Judges of the Supreme Court. In this case it was observed,-
In this case the Public Prosecutor obtained permission from the Court to cross-examine P.W. Jagat Singh, since he did not specifically refer to the two co-accused in his examination-in-chief. Mr. Debabrata Mukherjee, on behalf of the appellant, submits that since the prosecution case rests principally upon Jagat Singh's testimony, the whole edifice is destroyed on that witness being declared hostile and the appellant is entitled to an acquittal.
We have carefully perused the evidence of Jagat Singh, who was examined in the trial after more than a year of detection of the case. The prosecution could have even avoided requesting for permission to cross-examine the witness under Section 154 of the Evidence Act. But the fact that the Court gave permission to the Prosecutor to cross-examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence.
It is thus abundantly clear that in criminal prosecution, even if a witness is cross-examined and contradicted with his previous statement with the leave of the Court by the party calling him, his evidence still remains admissible in the trial and conviction can be based upon that evidence, if corroborated by other reliable' evidence. The learned Public Prosecutor Mr. Mathur frankly conceded that there is no other direct evidence to corroborate the testimony of P.W. 9 and P.W. 10 on the point that at the time of explosion or discharge from the revolver, the revolver was lying in the lap of the appellant. The learned Public Prosecutor further conceded that except the testimony of P.W. 10, there is no evidence to show that at the time of explosion, the appellant was cleaning the revolver Ex. 1, but it is contended by the learned Public Prosecutor that the circumstantial evidence produced in the case, clearly goes to show that it was due to the mishandling of the revolver bv the appellant that it caused the death of deceased Mool Chand. The appellant, in his statement under Section 342, Criminal P.C. (old) admitted that he went to the shop of Gopi Chand with the revolver Ex. 1, but he denied that at the time of explosion, the revolver was lying in his lap or that he was cleaning it. On the contrary, he deposed that he had kept the revolver in a leather case on the floor of the shop near a 'muddha'. As admitted by the learned Public Prosecutor, there is no direct evidence except that of P.W. 9 and P.W. 10 to prove that the revolver Ex. 1 was lying in the lap of the appellant and he was cleaning it at the time of explosion. He, however, relies on the evidence of P.W. 12 Dr. O.P. Chugh and P.W. 17 Ghanshyamdas. The revolver Ex. 1 recovered by P.W. 17 Ghanshyamdas from the shop of Gopi Chand, the fired bullet Ex, 27 recovered by the doctor from the dead-body of Mool Chand, and the empty cartridge case Ex. 26 recovered by P.W. 17 Ghanshyamdas from the revolver Ex. 1, were sent for examination to Dr. O.P. Chugh (P.W.7). who is a ballistic expert. He has opined that cartridge case Ex. 26 and fired bullet Exhibit 27 were fired from the revolver Exhibit 1. Again, P.W. 17 Ghanshyamdas, who reached the spot soon after the incident, has deposed that on the spot he found revolver Ex, 1 loaded with cartridges with one empty cartridge in one of the chambers of the revolver. He has further stated that revolver Ex, I was lying on the stool and its leather case was lying underneath the stool. The testimony of P.W. 12 Dr. O.P. Chugh and P.W. 17 Ghanshyamdas leaves no doubt that the death of the deceased was caused from the bullet discharged from the revolver Ex. 1, which was admittedly brought to the place of incident, namely, Gopi Chand's shop, by the appellant. Again it is admitted by the appellant in his statement under Section 342, Criminal P.C. (old) that at the time of the explosion, the appellant was sitting in front of the deceased. All these facts reasonably lead to the inference that the testimony of P.W. 9 and P.W. 10 to the effect that, at the time of explosion, the revolver Ex. 1 was lying in the lap of the appellant and the testimony of P.W. 10 that at the relevant time, the appellant was cleaning the revolver, appear to us to be trustworthy. In the circumstances, there is no escape from the conclusion that the revolver went off due to rash and negligent handling of the loaded revolver by the appellant. We would, accordingly, alter the conviction of the appellant from that under Section 302, I.P.C. to one under Section 304A, I.P.C.
17. The last contention of the learned Counsel for the appellant is that since the offence under Section 304A, I.P.C. is punishable with imprisonment for two years the appellant is entitled to the benefit under Section 3 of the Probation of Offenders Act. We have given anxious consideration to the argument of Mr. Mehta, but we are unable to agree with him. The appellant, during the relevant period, was holding the post of Sub-Inspector of Police. He had no business to load the revolver or to go with a loaded revolver to the shop of Gopi Chand and stey there for taking drinks : and then simultaneously, handling the loaded revolver for the purpose of cleaning it with the knowledge that it has no safety catch. It was due to this sort of negligent act on the part of the appellant that he took the life of an innocent person. In such circumstances, this case, in our opinion, has no place for any leniency in the matter of sentence or for the grant of the benefit of Probation of Offenders Act.
18. The result is that the appeal is allowed in Part, the conviction of the appellant under Section 302. I.P.C. and the sentence of imprisonment for life awarded to him, are set aside and instead, he is convicted under Section 304A, I.P.C. and sentenced to undergo rigorous imprisonment for two years. We are told that the appellant has already undergone the sentence of rigorous imprisonment for more than two years. If that is so, he shall be released forthwith provided he is not required in any other case.