2014 INSC 0184
                                    SUPREME COURT OF INDIA

                                                 Jhaptu Ram

                                                      Vs.

                                        State of Himachal Pradesh

                                            C.A.No.1223of2012

                                  (B.S. Chauhan and Chelameswar,JJ.)

                                                 26.02.2014

                                                   ORDER

B.S. Chauhan,J.

1. This criminal appeal has been preferred against the impugned judgment and order dated
4.12.2009 passed by the High Court of HImachal Pradesh at Shimla dismissing the Criminal
Appeal No. 104 of 2007 and affirming the judgment and order of Fast Track Court, Mandi
(H.P.) in Session Trial Nos. 32 of 2004 and 80 of 2005 by which and whereunder, the
appellant stood convicted under Section 302 of Indian Penal Code, 1860 (hereinafter
referred to as the `IPC' and has been awarded life sentence alongwith a fine of Rs. 10,000/-,
in default of payment of fine, to further undergo one year imprisonment.

2. Facts and circumstances giving rise to this appeal are as follows:

        "A. As per the prosecution, an altercation took place between theappellant and his
        son on 14.6.2004 at about 9.00 P.M. The daughterof the appellant named Shukari
        Devi called Devinder Kumar(deceased) and his mother Bhagti Devi (PW.1), who
        were the nextdoor neighbour. Devinder Kumar (deceased) and Bhagti Devi
        (PW.1)reached the house of the appellant and some altercation took placebetween the
        appellant and the deceased. The accused fired at himand after receiving a gun shot
        injury, he fell down and died. Theincident was witnessed by Bhagti Devi (PW.1) and
        Dina Nath (PW.3),son of accused/appellant. After hearing the noise of the gun shot
        other neighbours also reached the spot. An FIR was lodged at Police Station: Joginder
        Nagar on 15.6.2005 under Section 302 IPC and the appellant was arrested.

        B. After investigation of the case, a chargesheet was filed and as the appellant
        denied his involvement, the trial commenced. After conclusion of the trial, placing

2.  SpotLaw
        reliance on the evidence of PW.1 and PW.3, the trial court convicted the appellant and
        sentenced as referred to hereinabove.

        C. Aggrieved, the appellant preferred appeal before the High Court which has been
        dismissed vide impugned judgment and order dated 4.12.2009. Hence, this appeal."

3. Shri T.V.S. Raghavendra Sreyas, learned counsel appearing on behalf of Ms. Urmila
Sirur, learned Amicus Curiae, has submitted that the prosecution has not led any evidence to
show that the offence committed by the appellant was pre-mediated. Nor it has been
established by leading an evidence that after picking an altercation with the deceased, the
appellant gone into the house and brought agun. In this respect, there is no evidence on
record and it is a casewherein the appellant could be convicted under Section 304 Part-I
IPC.

4. Per contra, Shri Ajay Marwah, learned counsel appearing on behalf of the State, has
opposed the appeal contending that as the court below has concurrently held that it is a case
of simple murder, therefore conviction under Section 302 IPC to be upheld and it is not a
case where the conviction may be converted into Section 304 Part-I IPC and sentence may be
reduced.

5. We have considered the matter, undoubtedly, it was a case wherein the deceased and his
mother Bhagti Devi (PW.1) had been called to intervene and pacify the matter. It is also clear
from thevidence on record that an altercation took place between theappellant and the
deceased. There is no iota of evidence to show thatthere was any prior intention of the
appellant to kill the deceased. As per the medical and ocular evidence, there was only gun
shot fired by the appellant which proved to be fatal for deceased. More so, theprosecution
failed to marshal any evidence to show that the gun wasin his hand when the deceased
entered his house. In such peculiarfacts and circumstances of the case, we agree with the
submissions advanced by Shri Sreyas, learned counsel for the appellant.

6. In these facts and circumstances of the case, we are of the considered view that the
appeal deserves to be allowed partly. Hence, the conviction of the appellant is set aside under
Section 302 IPC and is convicted under Section 304 Part-I IPC and award sentence of ten
years. However, the amount of fine remains intact. With these observations, the appeal
stands disposed of.

2.  SpotLaw