1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Shankar Vs. State of Rajasthan (D.B. CRIMINAL JAIL APPEAL NO.945/2003) ****** D.B. CRIMINAL APPEAL UNDER SECTION 378 Cr.P.C. AGAINST THE JUDGMENT DATED 26.7.2003 PASSED BY THE SESSIONS JUDGE, UDAIPUR IN SESSIONS CASE NO.301/2001. ***** DATE OF JUDGMENT :::: 4.2.2008 P R E S E N T HON'BLE MR.JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE BHANWAROO KHAN Mr.Kalu Ram Bhati, Amicus Curiae. Mr. Vishnu Kachhawa, Public Prosecutor BY THE COURT (PER HON'BLE MR.KHAN J.) : 1. A Jail Appeal under Section 378 Cr.P.C. filed by accused-appellant Shankar against the judgment dated 26.7.2003 passed by the Sessions Judge, Udaipur in Sessions Case No.301/2001 whereby the accused-appellant was convicted under Section 302 I.P.C. and Section 27 of the Arms Act and was sentenced to undergo life imprisonment and to pay a fine of Rs.5000/-; in default of payment of fine 2 to further undergo 1 month imprisonment under Section 302 I.P.C. and for offence under Section 27 of the Arms Act, he was sentenced to undergo 3 years rigorous imprisonment and to pay fine of Rs.2000/-; in default of payment of fine to further undergo 6 months imprisonment. 2. Briefly, the prosecution story as narrated in the FIR that on 18.8.2001 at about 11.30 p.m. injured Nana gave an oral statement to Govind Singh, ASI while under treatment in Udaipur Hospital that on 18.8.2001 at about 6- 7 p.m., he along with Kalu were going for bath on the river, when they reached before the house of Shankar, who was standing outside of his house, Shankar addressed in sarcastic way by referring him as 'Tatia' (bald headed) and asked them to stop by saying that he will see them. He went inside the house and brought a muzzle loading gun and fired from the said gun, which hit Kalu on the chest and on the wrist of his left hand. Kalu fell down immediately due to the said injury. The incident was witnessed by Nana s/o Uda Ji Rawat and Lala. He became unconscious and was taken by his father, Roda, Limba, Ram Singh and was admitted in hospital for treatment. The accused Shankar was having enmity becasue of outstanding amount of labour charges, but the said dispute was settled by intervention of the villagers. On this report, a case under Sections 302 and 307 I.P.C. and 3/25 of the Arms Act was registered. After due investigation, challan under Section 302 and 307 I.P.C. against accused Shankar and under Section 29 of the Arms Act against accused Vagta were filed. 3 3. The accused Shankar and Vagta denied the charges levelled against them and pleaded for trial.The prosecution in all produced 16 witnesses and documents Exhibit-P/1 to Exhibit-P/34 were got exhibited. No evidence was produced in defence. The learned trial court after going through the entire evidence oral as well as documentary, convicted and sentenced accused Shankar for the aforesaid offences and convicted Vagta for charges levelled against him under Section 29 of the Arms Act. 4. Both the parties were heard. The entire record was gone through. 5. The learned Amicus Curiae pleaded that there was a single fire from the gun and by mistake it hit Kalu. The accused never wanted to kill, but just to scare them, he fired gun shot which is an accidental hit to the injured. There was no intention of the accused but it was an accidental hit to Kalu and Nana. From the oral as well as documentary evidence, no case under Section 302 I.P.C. is made out against the accused-appellant. The learned trial court has not properly discussed the oral evidence and no evidence is availale on record to prove the guilt against the accused-appellant. 6. The learned Public Prosecutor supported the judgment of the learned trial court and pleaded that the learned trial court convicted the accused-appellant for the 4 aforesaid charge becasue the accused, who was standing outside his house accosted Nana and Kalu while they were going and brought the gun and fired from the house intentionally towards both of them, which hit Nana on the wrist and Kalu on the chest. Kalu succumbed to the injury and Nana was hospitalised. The conduct and action of the accused clearly reveals that there was no other intention of the accused except to kill both of them, but only Kalu succumbed to the injuries. There is neither any illegality nor any infirmity in the judgment of the learned trial court. The eye-witnesses and injured's statements have corroborated each other fully and no contradiction, discripencies or infirmity is available in the statements of witnesses. The accused-appellant has rightly been convicted for the offence of murder. 7. Deceased Kalu, who succumbed to the gun injury has died unnatural death. PW-7 Dr. Akhilesh Sharma conducted the post mortem and prepared a report Exhibit-P/19 and stated that deceased Kalu died because of gun shot injury, a case of homicidal death. 8. The injured PW-1 Nanalal in his satement during trial has categoricaly stated that when he along with Kalu were going to take bath on the river. The accused-appellant was standing outside his house and after accosting them, to stop went inside the house and brought muzzle loading gun and fired towards them. He received a gun shot injury on 5 his left wrist and Kalu on the chest, who succumbed to the injuries on the spot. His statement is corroborated from the statement of PW-13 Nana and PW-14 Lala. Though all these witnesses have been cross-examined but in their statements nothing has been elicited which cast any doubt in their testimony. They have supported and corroborated their statements with each other. It is proved that it was the accused-appellant, who fired a gun shot towards Nana and Kalu when they reached near the house of the accused while going to take bath. On believing the produced testimony, the learned trial court has committed neither any illegality nor any irregularity, which can go against the prosecution. The witnesses are reliable trust-worthy and inspired evidence. 9. The gun was recovered at the instance of accused Shankar through Exhibit-P/9 and was sent for Forensic examination and through Exhibit-P/31 it was found to be serviceable fire arm from which gun shot was fired. While conducting the post mortem, pellets were recovered from the deceased's body, which were sent to Forensic Science Laboratory for verification and it was found by Exhibit-31 that irregular shaped lead shot can be used in muzzle loading gun and these shots could have been fired from the gun which was recovered at the instance and from the possession of the accused. So it is well established that gun shot was fired by the accused which hit Kalu on the chest and also hit Nana on his left wrist. Nana's injuries according to his own statement and also from the statements 6 of PW-4 Dr. Rajendra Sharma and PW-15 Dr. Tanveer Rijvi proved that he received a punctured wound. Dr. Rajendra Sharma prepared a injury report Exhibit-P/13 and has stated that the injury is of a fire arm. 10. The action and conduct of accused-appellant Shankar, who fired gun shot towards injured Lala and deceased Kalu clearly reveals his intention to achieve its aim of killing them, which ultimately culminated in death of Kalu and fire arm injury to Nana. In firing the gun shot towards Nana and Kalu no inference can be drawn except that accused-appellant was intended to kill them. So a clear case under Section 302 and 307 I.P.C. is made out. The learned trial court has rightly held that the case of murder against the accused is well proved on the basis of oral as well as documentary and medical evidence. 11. No interference by this Court is, therefore, called for in the judgment passed by the learned trial court. There is no merit in this appeal and, accordingly, the appeal filed by the appellant-Shankar is dismissed. The accused-appellant Shankar is in jail, he will serve out the remaining part of his sentence. (BHANWAROO KHAN) J. (PRAKASH TATIA ) J. RM/-