- (1.) CHALLENGE in this appeal is to the judgment of a Division Bench of the calcutta High Court which by the impugned judgment upheld the conviction of the appellant for offence punishable under Section 302 of the indian Penal Code, 1860 (in short the 'ipc') while setting aside the conviction under Section 398 IPC as done by learned Additional Sessions judge, Alipore, in connection with Sessions trial No. 6 (1) of 1997.
(2.) PROSECUTION case in a nutshell is as follows: on 1st August, 1996, at about 11. 40 in the night the present appellant along with others came in a white Ambassador car having fake number plate in front of the grocery shop under the name and style "prabhat Stores" situated at 7/1, Bampass Road, Calcutta-29. The persons who came in the ambassador car were armed with weapons like pistol, nepala etc. and they entered into the grocery shop and demanded key of the cash box from the proprietor of the shop namely Gulab Mehata (hereinafter referred to as the 'deceased' ). At that relevant time Gulab Mehata alongwith his sons Mukesh mehata was about to take their dinner and the FIR maker Shyam Mehata just came inside the shop with drinking water. Since Gulab Mehata refused to hand over the key of the cash box the present appellant shot at the deceased from the front side at his chest and on receiving the injury, he fell down and thereafter the appellant and other accused persons inflicted cut injuries on the person of the deceased. The miscreants also assaulted mukesh Mehata with the butt of the revolver. Soon after the occurrence, hearing the alarm of the FIR maker, Shyam Mehata and his brother Mukesh mehata, the neighbours of the locality rushed in the shop and Gulab Mehata and Mukesh Mehata were taken to the nearby hospital where subsequently gulab Mehata succumbed to his injuries. One of the neighbours informed tollygunge Police Station immediately about the occurrence and tollygunge Police Station officials soon thereafter arrived at the spot and started investigation. On completion of the investigation, police submitted the charge sheet against the present appellant along with others under section 302 read with Section 34, Section 307 read with Section 34 and section 398 read with Section 34 IPC. Since the accused persons pleaded innocence trial was held. Before the High Court the learned counsel for the appellant accepted that there was no challenge to the fact relating to the occurrence. It was also conceded that from the evidence of the FIR maker and also from the evidence of the other witnesses examined during the trial it was established that the present appellant was physically present inside the shop room. It was also conceded that there was little scope to deny the prosecution charge that accused had assaulted the deceased Gulab Mehata with the help of fire arm. It was, however, submitted that the circumstances under which firing has been done were not very clear. Brother of the FIR maker who was also injured at the time of occurrence did not identify the appellant as the person who shot at his father and, therefore, there was scope to raise a doubt as to whether the appellant with the intention of causing death to Gulab Mahata shot at him. In other words, it was submitted that a case under Section 302 is not made out. The High court did not accept this plea, though it accepted the stand that there was no scope for the conviction under Section 398 IPC. The stand taken before the High Court was re-iterated by learned counsel for the appellant. In support of the appeal, it was submitted that the High court has erroneously recorded certain concessions which in fact were not made. It is submitted that in any event, no offence under Section 302 IPC is made out. It is also submitted that there was no identification of the appellant as claimed. Learned counsel for the State on the other hand submitted that the factual scenario clearly established the commission of offence under Section 302 IPC. So far as the aspect of concession is concerned it is to be noted that there is no ground taken even in the memorandum of appeal that there was no concession as recorded by the trial Court.
(3.) IT would be logical to first deal with the plea relating to absence of concession. It is to be noted that the appellant conceded certain aspects before the High Court. After having done so, it is not open to the appellant to turn around or take a plea that no concession was given. This is clearly a case of sitting on the fence, and is not to be encouraged. If really there was no concession, the only course open to the appellant was to move the High court in line with what has been said in State of Maharashtra v. Ramdas shrinivas Nayak (1982 (2) SCC 463 ). In a decision Bhavnagar University v. Palitana Sugar Mill (P) Ltd. (2003 (2) SCC 111) the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellant to contend before this Court to the contrary. The above position was highlighted in Roop Kumar v. Mohan thedani (2003) 6 SCC 595 ). This brings us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murders' are 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.;