1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.332 OF 2006 Omprakash Gulabdas Vaishnav ..Appellant Age : 29 yrs, Occu : Service R/o.Maratha Colony, Datta Nagar, Taluka Chehadi, District Nashik V/s. The State of Maharashtra ..Respondent Mr.S.A.Dhamale, advocate, for appellant Mrs.V.R.Bhosale, A.P.P, for the State CORAM : F.I.REBELLO & K.U.CHANDIWAL, JJ. DATE : 22ND APRIL, 2008 JUDGMENT (PER K.U.CHANDIWAL, J.) . Being aggrieved by the Judgment and Order of conviction in Sessions Case No.58 of 2005, Nashik by the IV Ad-hoc Sessions Judge, Nashik, dated 28th February, 2006, awarding life imprisonment with a fine of Rs.500/-, in default S.I. for one month, accused has filed the appeal. 2. FACTS :- The complainant, his brother Vinod (deceased) reside at Plot No.6 at Maratha Colony, Datta Nagar, Taluka Chehadi, District Nashik. One block 2 constructed by Vinod was given to the accused for occupation as the accused had paid Rs.55,000/- to said Vinod. The accused is in Services. Both the families are known to each other since 14-15 years. The accused having availed leave, had come to Nasik road on 7th June, 2004 and did not resume his duties at Jammu. The accused suspected that his wife was having illicit relations with the complainant and Vinod, enquired the same with the complainant and also asked him about such relations to which Vinod had on phone refused. On 26th August, 2004 while complainant was at home. At 4.00 P.M. Vinod returned to the house, Vinod went to the house/room of the accused being called at 5.00 to 5.15 P.M. There was a huge sound of firing emminated from the room of Ompraksed (accused). Complainant and others rushed to the room of the accused. The accused had fired at the chest of Vinod from his 12 boregun while his wife Shalini was shouting loudly that the accused had fired gun on the chest and was also shouting “Wachava Wachava”. The accused ran to the side of latrine and started consuming poison 'Regor' . The complainant snatched container from the accused. However, at the same time his wife Shalini took it and she too started consuming poison. The accused was detained in the house and the police were communicated. At the instance of the complainant offence vide C.R.No.312 of 2004 was registered against the accused under Sections 302, 309 read with 34 of the Indian Penal Code and under Section 3 read with 25 and under Section 27 of the Arms Act. The Spot Panchanama was drawn. The pairs of slippers with 3 blood stains, 12 bore rifle, three live cartridges, one container with poison was taken charge. Rough sketch was prepared. The photographer Sanjay Bednere obtained photographs of the spot and of the dead body. The inquest on the body of Vinod was drawn. Since the blood stains were noticed on the sky blue coloured shirt of the accused, it was taken charge in the presence of panch witnesses. The statements of the witnesses were recorded. Blood sample of the deceased Vinod Panchal and accused was collected. The accused was arrested under Arrest Panchanama. The statement of shop owner Vishram Kolhe who sold ' Regor' to the accused was recorded on 7th September, 2004. I.O. sent the rifle, live cartridges, shirt of the deceased, the small shot taken out from the body of the deceased, the cap on the front side of the bullet, some part of the bullet taken out of the body of the deceased, skin sample of the spot where the deceased had wound on his chest, the bed sheet, slippers, shirt of accused Omprakash, blood sample of deceased Vinod and that of the accused Omprakash, Baniyan and other apparels were sent to the C.A/Ballistic Expert for analysis. On receiving C.A.reports after completion of investigation, chargesheet against the accused and his wife was filed. The charge (Exh.17) was explained to both the accused. They pleaded not guilty to the charge (Exhs.18 and 19). 3. DEFENCE :- 4 The defence of the accused was of total denial. The second limb of defence from accused No.1 was when he had gone to latrine he heard a big noise and noticed that Vinod was lying on the cot. Vinod negligently handled the Rifle and suffered gun shot. During submissions before this Court the defence counsel canvassed that the act of accused will be within the bracket of sudden provocation, and that there was no pre-meditation. 4. WITNESSES :- In order to substantiate the charge ten witnesses are put in acceleration. P.W.1 Pravin Junelal Patil (Exh.33) has witnessed Seizure Panchanama of shirt of accused proved (Exh.34). P.W.2 Anil Sitaram Panchal (Exh.42) is the brother of victim has witnessed the incident. P.W.3 Santosh Khandu Thorat (Exh.45) is the friend of accused and deceased. He saw the accused standing near the dead body of Vinod with Rifle. P.W.4 Dr.Kanchan Hanshchand Lokwani (Exh.47), he has examined the accused No.2 Shalinibai and accused No.1 Omprakash on 26th August, 2004 in the capacity of Casualty Medical Officer and on examination he opined that Shalinibai was not in a position to make a statement. Shalinibai was discharged on 1st September, 2004 while the accused was admitted on 26th August, 2004 at 10.05 P.M. P.W.5 Makrand Pandurang Patil (Exh.50) is the Medical Officer at Civil Hospital carried 5 the Postmortem as per the notes (Exh.52). P.W.6 Bhausaheb Bhaskar Gaidhani (Exh.53) witnessed the Spot Panchanama at the room of the accused (Exh.54). P.W.7 Walmik Pandurang Porje (Exh.55) knows accused and Vinod and having heard noise he rushed to the room of the accused where Shalinibai was shouting as “Dada Dada Wachava Wachava”. P.W.8 Dr.Pitamber Gangadhar Jahdav (Exh.57), has examined Shalini Vaishnav(Accused) on 28th August, 2004 and allowed Special Judicial Magistrate, Shri P.B.Khairnar to record her Dying Declaration. P.W.9 Dilip Baburao Khairnar (Exh.59) has recorded Dying Declaration of Shalinibai on 28th August, 2004 (Exh.58/62). P.W.10 Rajaram Namdeo Pardeshi is the Investigation Officer carired investigation, seized incriminating articles and drew rough sketch map of the spot (Exh.65). The photographs are at Exhs.66 to 78. The forwarding letter of sending seizure articles is at Exh.82 and C.A.reports are at Exhs.30 to 32A. The spot panchanama, Seizure Panchanama, C.A.report and Ballistic Expert' s report are at Exhs.28, 32-A, 38 and 40. 5. Before adverting to the evidence it is not in dispute that one double barrel shot gun having number as 5075-97, with a length of 3 feet and 6 inches belongs to the accused and that the accused has licence 884/ADM dated 30th September, 1997 No.1043747 DBBL 12 bore renewed upto 31st December, 2006. The accused has admitted seizure panchanama of clothes of deceased 6 (Exh.25), his arrest panchanama (Exh.26) under which sky blue coloured shirt was recovered, seizure of rifle which was in the name of accused (Exh.27), C.A.report regarding blood group of accused (Exh.28), C.A.report of blood group 'B' of deceased(Exh.29), ballistic report regarding X ray plates (Exh.30), Ballistic report about its 12 bore card board ward (Exh.31). 6. After the inquest on the body of Vinod, Dr.Kasodkar and Dr.M.P.Patil (PW.5) carried Postmortem on 27th August, 2004 at 9.00 A.M and completed on 10.00 A.M having received dead body from Bytco Hospital on 26th August, 2004 at 9.40 P.M. The rifle (Article 3) showed to P.W.5, is confirmed by him to have been used due to which Vinod sustained fatal injuries as referred in Column Nos.17 and 20 of Postmortem report(Exh.52). He has stated that in rat hole injury, the Doctor cannot predict the depth of the injury. In their opinion, there is one central entry in the (Rat hole type). Multiple pellets penetrate the heart muscle with contusion in pericordium and lungs. The injury in column Nos.17 and 20 is possible, if gun is fired from a distance of 6 feet. Similarly, injury on chest can be possible if gun is fired by keeping it on chest of the person. The cause of death was shock due to gun-shot injury to vital organ i.e.(Heart and lungs). Taking all these facts into consideration and even, the defence of the accused, it is not in dispute, that the death of Vinod was unnatural homicidal caused due to gun-shot. 7 7. P.W.1 Pravin Junelal Patil is panch who witnessed seizure of shirt on the person of accused in the night of 26th August, 2004 at about 8.00 to 8.15 P.M. vide panchanama Exh.34. The said shirt at article-6 is identified by the witness and even complainant P.W.3 and P.W.7. Blood stains were visible on the shirt of the accused. It was suggested to P.W.1 that he had noticed accused Omprakash at the spot with Baniyan and Bermuda pant and no shirt was taken charge from his person. Second defence was, shirt of accused was procured from his house. There is no reason to doubt the seizure of shirt. C.A.report at Exh.32A shows presence of human blood of 'B' group. While on apparels of the deceased namely full shirt and bedsheet from the room of the accused also shows same blood group. The blood group of accused is also ' B' . In arrest panchanama Exh.26 (admitted) panch did not notice injuries on the person of accused. Consequently, it follows that blood stains found on shirt of accused immediately after the incident were the blood stains of deceased Vinod caused due to fire effected by accused, having fired from close distance of 3-4 feet as the room itself is barely 10 x 12 feet(proved by P.W.6) having a cot. In the statement recorded under Section 313 of the Criminal Procedure Code there is no explanation offered by the accused except claiming “it is false”. 8 8. P.W.2 is Anil Sitaram Panchal, brother of the deceased complainant. In the substantial evidence as well as F.I.R P.W.2 Anil Panchal has consistently told how the events has taken turn. On 25th August, 2004 accused No.2 Shalinibai told the complainant that her husband (accused No.1) is suspecting her fidility with the complainant and Vinod and she requested the complainant to pacify accused No.1 Omprakash. On 26th August, 2004 when the complainant returned the home in the morning, accused No.1 again called him and he enquired with him about his illicit relations with Shalinibai. Upon which the complainant flatly conveyed that there was some misunderstanding in the mind of the accused. Then accused asked about such relations between Shalinibai and Vinod. The complainant got this fact even confirmed from Vinod on his mobile. 9. On 26th August, 2004 Vinod returned home at 4.00 P.M. The complainant went to bathroom to become fresh. At that time his friend Santosh Thorat and complainant' s mother were in the house. Vinod had left the room and went to court-yard to attend one mobile call. At the same time accused No.1 Omprakash called Vinod, Vinod went to the house of accused No.1 while the complainant was wearing pant. Within two minutes complainant heard a big noise from the house of Omprakash. Therefore, the complainant, his friend and mother rushed to the house of accused. The door was shut and the complainant 9 pushed and found the accused holding gun Rifle while his wife Shalinibai was shouting loudly that accused has fired on the person of Vinod. Vinod was lying on the cot as the bullet had hit on his chest. The accused left his rifle and ran towards the latrine. He was chased by the complainant and surprisingly it was found that accused started consuming “Regor” a poison. The container was snatched from the accused resulting in some scuffle. However, pre- determination of accused and his wife prompted accused No.2 Shalinibai to consume the remaining poison from the container. The assembled persons and particularly, P.W.3 friend Santosh controlled the accused. Vinod was removed to Bytco Hospital where he was declared dead. The clothes on the person of the deceased are at articles 7 to 12. It was suggested to P.W.2 that when the incident took place the accused had gone to attend call of nature in the latrine. He disputed that he did not see rifle/gun in the hands of the accused while accused No.2 was in frighten state of mind. It was suggested that Vinod handled said gun negligently and therefore, bullet came out of the gun and entered in the body of Vinod. Basically this suggestion to the witness even to Santosh P.W.3 is rationally undigestable as the size of the gun is 3 and 6 inches and even, if, Vinod attempts to shoot fire himself it will not be within his reach to do so. There was obviously no reason for Vinod even to be negligent to get the fire at point blank distance at his chest. The accused being in Services is consciously aware about impact by fire from Rifle and used his skill by operating gun, fired single 10 bullet to the chest of the victim who naturally suffered rat hole injury. 10. P.W.7 Walmik Pandurang Porje, resides by the side of Vinod's house. On hearing a big noise he rushed to the house of accused and found in the room the accused, his wife Shalini, the complainant, P.W.3 Santosh Thorat and Vijay Bhoi while Shalinibai was shouting “Dada Dada and Wachava Wachava”. According to him, accused was holding rifle in his hands. 11. P.W.3 Santosh Thorat being present at the spot, corroborates to what the complainant has stated. There is no contradiction and omission in the evidence of P.W2 and P.W.3. P.W.3 attended case for two dates but it will not be adversely affecting his gesture, as the victim and P.W.2 complainant and accused are his friends. He confirmed that P.W.2 has pushed door. The evidence of these three witnesses cannot simply be brushed aside as they unequivocally establish that Vinod went to the room of the accused in response to call and within two minutes there was gunshot. Accused was found holding Rifle. Vinod succumbed to the injuries. Even, if, it is presumed that the complainant did not see the accused with rifle in his hands, still the fact remains that in the room it was the accused, his wife Shalini and Vinod(deceased) were the only three persons. The gunshot to Vinod is by a skilled person/shooter 11 which could be none other than the accused. The instant yelling of wife of accused “accused killing Vinod”, simply cannot be ignored. The room of the accused and complainant are close to each other. It could have taken probably few seconds for the complainant to rush to the room of accused by covering a distance of 5/6 feets, hence, he could see the accused with rifle in his hands which is just and rational. The photographs at Exh.66 to 78 show the topography of the room of the accused and the injuries suffered by the deceased. The blood stains on the wall, floor and cot serve as cruel reminder of brutal murder committed by the accused. 12. The learned defence counsel relied on the Judgments reported in (1) 1984 CRI.L.J.478 in the matter of Tholan v. State of Tamil Nadu, (2) (1981) 4 Supreme Court Cases 245 in the matter of KULWANT RAI Versus STATE OF PUNJAB and (3) 1983 CRI.L.J.429 in the matter of Jawahar Lal and another v. State of Punjab. In these cases the accused were osscilating between age group of 19-20 years and on analysis of evidence it was found in the matter of Tholan that there was no earlier dispute between the accused and deceased. The accused started remonstrations using filthy language against the Chit Fund Organisers. The deceased came out of the house and asked the accused to go away. Accused on spur of moment gave a blow with a knife and pushed the deceased some distance. In the second matter the accused aged 20, without 12 prior enemity or premeditation, on a short quarrel gave a single blow with a dagger which later proved to be fatal. In the third matter there was single knife assault blow. The accused had no motive against the deceased nor he had any quarrel with the deceased. The accused did not make any attempt at giving second blow in the dim light available at the time of occurrence. The Hon' ble Lordships held the accused could not be said to have intention to cause that particular injury. 13. In this case, the accused was in military based at Jammu and returned home on leave, he was in search of a job. He suspected fidility of his wife and felt that she had illicit relations with either Vinod or complainant. It was under concert he decided to eliminate accused and planned to consume poison for which ' Sever' was purchased. The accused had indeed intention and motive to commit murder of deceased, to take revenge of the illicit relations he had with Shalini. The accused aimed his 12 boregun at the chest of victim from close proximity which he knew will be fatal. Thus, it was the prior vengence running in the mind of the accused which has caused for single rifle fire to the victim/deceased Vinod. 14. Now the C.A.reports needs to be scanned. P.W.6 witnessed the Spot Panchanama Exh.54 and in his presence the rifle having one bullet fired 13 and one cartridge in the rifle was seized. Under forwarding letter it was sent to Ballistic expert. At Exh.30 is the report of Ballistic expert bullet of seizure and it is opined by C.A. Multiple, tiny pellet shaped which were consistent with the firing of lead pellets of shotsize No.1 generally used in shotgun catridges. At Exh.31 is the report of Sample of bullet wad/shell marked (Article-6), in which it is confirmed that it is a fired 12 bore card board wad. Exh.32 is the report dated 29th June, 2005. From Ballistic expert in relation to examination of : Exh.1A :- One intact KF 12 bore shotgun catridge of shot size No.1 and having head stamp marking 'KF-12-96-12' found in side in the left barrel of Exhibit 1. Exh.2 :- Three intact KF 12 bore shotgun cartridges of shot size No.1 and having head stamp marking 'KF-12-96-12' put in polythene bag, put in envelope, marked Exhibit 2. Full bush shirt, wrapped in paper (Exh.3), Full bush shirt, wrapped in paper (Exh.6), Underwear(cut), wrapped in paper(Exh.7), Sandow Banian (cut), wrapped in paper (Exh.8), Full pant, wrapped in paper(Exh.9). Having received all the articles from Nashik Road Police Station in C.R.No.312/04. The Ballistic report on analysis opined that Exhibit 1 is a double barrel breech loading 12 bore shotgun in working condition. Residue of fired ammunition-nitrite was detected in both the barrels of the shotgun in Exhibit 1, showing that the shotgun in Exhibit 1 was used for firing prior to its receipt in the laboratory. Two 12 bore shotgun cartridges from Exhibit 2 were found to be live on test firing from the left barrel of the 12 boregun shotgun in Exhibit 1. Two 12 bore shotgun cartridges, one in 14 Exhibit 1A and the other in Exhibit 2 were found to be live on test firing from the right barrel of the 12 bore shotgun in Exhibit 1. The empty in Exhibit 1B is a fired 12 bore shotgun cartridge case. The characteristic features of the firing pin impression and the characteristic firing pin drag marks on the empty in Exhibit 1B tally with those on the 12 bore shotgun cartridge. It is fired from the right barrel of the 12 bore shotgun Exhibit 1A shows that the empty in Exhibit 1B has been fired from the right barrel of the 12 bore shotgun in Exhibit 1. Detection of metallic lead in presence of blackening and burning around the periple, of encircled shot hole on the front side of the bush shirt in Exhibit 3 and the corresponding semi circular shot hole on the front side of the banian in Exhibit 8 are consistent with the passage of lead projectiles having been fired from within the close range of the weapon i.e.within one meter. Shot holes were not observed on the clothes in Exhibits 4, 6, 7 and 9. We have already referred about the presence of blood group ' B' on the shirt of the accused article-6. On analysis we found that C.A. Report and Ballistic expert clearly establish that rifle/gun was used for firing before it was sent to the expert, from it's right side barrel bullet in question was fired. Thus, these reports establish about the use of the 12 boregun rifle belonging to accused from close range of one meter aiming at chest of the deceased. 15. The presence of accused in the room with the rifle in his hands, 15 deceased facing gun/rifle bullet injury, accused throwing the rifle and running to latrine and start consuming poison attempting to commit suicide, presence of blood stains on shirt of accused conclusively point to the involvement of accused to have committed murder of Vinod Panchal. There is no escape for the accused to entertain that at the time of gunshot to Vinod he was in the latrine and it was by negligent handling of the rifle by the victim Vinod he suffered fatal injuries. We found that there was no error by the learned IV Ad-hoc Sessions Judge in convicting accused/appellant for the offence punishable under Section 302 of the Indian Penal Code. The appeal is without merit and same is accordingly dismissed. (F.I.REBELLO, J.) (K.U.CHANDIWAL, J.)