D.B. Criminal Jail Appeal No. 1087/2004 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Narsa Versus The State of Rajasthan D.B. CRIMINAL JAIL APPEAL NO. 1087/2004 Date of Judgment : 18.10.2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. Manoj Pareek for the appellant Mr. K.R. Bishnoi – Public Prosecutor BY THE COURT (PER HON'BLE JOSHI, J.) By this judgment we propose to dispose of the jail appeal arising out of the judgment of the learned Additional District and Sessions Judge (Fast Track) No. 1, Udaipur passed in Sessions Case No. 94/2003 dated 19.10.2004, by which the learned trial court held the accused appellant Narsa S/o Deeta Gameti, resident of Kolar, Police Station Ogana, District Udaipur, guilty for the commission of offence under Section 302 IPC and Section 3/25 of the Arms Act and sentenced him for the offence under Section 302 IPC to undergo life imprisonment and a fine of Rs.2000/- and in default of payment of fine to further undergo two months’ simple imprisonment and for commission of offence under Section 3/25 of the Arms Act, the accused appellant was sentenced to undergo two years’ rigorous imprisonment and a Page 1 of 12 D.B. Criminal Jail Appeal No. 1087/2004 fine of Rs.1000/- and in default of payment of fine to further undergo one month’s simple imprisonment. The learned trial court further ordered that both the sentences shall run concurrently. The nub of the prosecution story as disclosed during the course of the investigation and trial is that on 09.05.2003 at 10.15 p.m. Megha S/o Puna Gameti (P.W.11) lodged a written report in the Police Station Ogana to the effect that in the evening of that day at 6.00 p.m. he was at his residence and his brother Uda went to the shop of Narsa Gameti to purchase some household things. His brother sat in the Dhaliya and demanded the goods. Meanwhile Narsa came out with a Topidar gun and due to old rivalry with intention to kill his brother fired at him. The pallets entered the body of his brother Uda and he succumbed to the injuries at the spot. Hearing the sound of fire, the complainant immediately rushed to the spot. Kalu and Dhanna Gameti were also present there. On seeing them, Narsa ran with the gun. The complainant caught hold of Narsa, but he pushed him and ran away. On the basis of the aforesaid report, First Information Report No. 48/2003 under Section 302 IPC was registered at the Police Station Ogana and the investigation commenced. During the course of the investigation, the statements of the witnesses Page 2 of 12 D.B. Criminal Jail Appeal No. 1087/2004 were recorded, accused appellant Narsa was arrested and at the instance of the accused appellant, in pursuance of the information recorded under Section 27 of the Indian Evidence Act, the gun was recovered. The postmortem of the body of deceased Uda was conducted by the Medical Officer, Primary Health Center, Ogana and in the postmortem pallets were found in the body of the deceased. After usual investigation, charge- sheet was filed against the accused appellant in the Court of Additional Chief Judicial Magistrate, Jhadol under Section 302 IPC and Section 3/25 of the Arms Act, from where the case was committed to the Court of Sessions Judge, Udaipur for trial and further it was transferred to the Court of Additional District and Sessions Judge (Fast Track), Udaipur, which was further renamed as Court of Additional District and Sessions Judge (Fast Track) No. 1, Udaipur, where the trial took place. During the course of trial, the prosecution to prove its case examined as many as 17 witnesses, namely, P.W.1 Guman Singh, P.W.2 Gulab Singh, P.W.3 Prithvi Singh, P.W.4 Dhula, P.W.5 Arjun, P.W.6 Vakta, P.W.7 China, P.W.8 Kali, P.W.9 Deeta, P.W.10 Dr. Ravindra Yadav, P.W.11 Megha, P.W.12 Bhikharam, P.W.13 Kalu S/o Pancha, P.W.14 Dhanna, P.W.15 Madan Lal Sharma, P.W.16 Kalu S/o Rata and P.W.17 Chhagan Rajpurohit. The incriminating evidence as adduced by the prosecution during the trial was put to the accused for his Page 3 of 12 D.B. Criminal Jail Appeal No. 1087/2004 explanation under Section 313 CrPC and he did not produce any evidence in his defence. After conclusion of the trial, the learned trial court vide the judgment dated 19.10.2004 convicted the accused appellant Narsa for the offences charged and sentenced him as narrated in the earlier paras. Hence this appeal. We have perused the statements of the witnesses recorded during the course of the trial. The learned trial court while relying upon the evidence of P.W.11 Megha, coupled with the evidence of recovery of the gun at the instance of the accused appellant in pursuance of the information recorded under Section 27 of the Indian Evidence Act, held him guilty of both the offences charged. P.W.1 Guman Singh and P.W.2 Gulab Singh are the formal witnesses of keeping the Malkhana articles in intact sealed position in the Police Station Ogana and further to carry the Malkhana articles to the Forensic Science Laboratory, Jaipur after obtaining the forwarding letter from the office of the Superintendent of Police, Udaipur. P.W.3 Prithvi Singh deposed that on the relevant date 25.05.2003 he was posted as District Armorer in Police Line, Udaipur and on that day he examined the gun forwarded by the Police Station Ogana and he found that it was a Topidar gun Page 4 of 12 D.B. Criminal Jail Appeal No. 1087/2004 which falls under the category of firearm. The Barrel of the said gun was broken in two parts, but the other parts were in working condition. He prepared the report Ex.P.6. P.W.4 Dhula and P.W.5 Arjun did not corroborate the prosecution story, therefore, they were declared hostile by the prosecution. P.W.6 Vakta deposed that Uda was his brother. His house was near the house of Uda. In the month of Jeth, prior to the recording of his statement in the court, in the evening at 6.00 p.m. he was sitting near the house of Narsa and Narsa fired the gun at Uda, which caused his death. He was standing there at that time. The injuries were caused on the chest of deceased Uda. Narsa immediately ran away from there. Other persons also came there, who were Kalu, Dhanna, Dhula nad Cheena. This statement was corroborated by P.W.11 Megha and further Megha also deposed about lodging of the First Information Report and corroborated the fact of the site inspection made by the Investigating Officer. P.W.7 Cheena is the witness who reached the place of the incident just after the occurrence and he deposed that he was at his residence in the evening. When he heard a gun shot, he immediately rushed to the shop of Narsa. Body of Uda was Page 5 of 12 D.B. Criminal Jail Appeal No. 1087/2004 lying there and there were injuries on the chest of Uda. Narsa ran away from the place of the incident. Other persons of the village including Kalu, Bheekah, Dhanna, Arjun and Dhula were also present there. P.W.8 Kali also corroborated the evidence of P.W.7 Cheena. She is the wife of deceased Uda and she also rushed to the place of the incident after hearing the sound of gun shot and found that her husband Uda was lying dead there. P.W.9 Deeta did not corroborate the prosecution story, therefore, he was declared hostile by the prosecution. P.W.10 Dr. Ravindra Yadav deposed that on 10.05.2003 he was posted as Medical Officer, Primary Health Center, Ogana. On the request of the Station House Officer of the Police Station Ogana, he conducted the autopsy on the body of Uda S/o Puna Gameti, aged 35 years, resident of Kolar and he observed that there were penetrating wounds seven in number of the size 0.5 x 0.5 x 6 to 8 cm. present over left anterior and middle one third of left nipple. At the site of the entrance of wounds, dirt coller was present. He further observed that in the left lung, penetrating wounds four in number were present over left lower lobe of lung associated c blocking of surrounding lung parenchyma at the site of wounds and associated c haematoma Page 6 of 12 D.B. Criminal Jail Appeal No. 1087/2004 of 100 to 200 cc blood present in the left of pericardium. He further observed that there were penetrating wounds present three in number over anterior walls of both ventricles and small amount of blood was also present. He further deposed that in his opinion, the cause of death was as a result of firearm. P.W.12 Bhikharam did not corroborate the prosecution story, therefore, he was declared hostile by the prosecution. P.W.13 Kalu S/o Pancha deposed that he immediately reached the place of occurrence and saw that Megha caught hold of Narsa, but Narsa freed himself forcefully and ran away. P.W.14 Dhanna did not corroborate the prosecution story, therefore, he was declared hostile by the prosecution. P.W.15 Madanlal Sharma was the photographer who took photographs of the dead body. P.W.16 Kalu S/o Rata did not corroborate the prosecution story, therefore, he was declared hostile. P.W.17 Chhagan Rajpurohit was the Station House Page 7 of 12 D.B. Criminal Jail Appeal No. 1087/2004 Officer of the Police Station Ogana on the relevant date and he deposed about the registration of the case and various steps taken during the course of the investigation and he further deposed that after completion of the investigation, he filed the charge-sheet in the competent court. The accused appellant in his statement under Section 313 CrPC stated that the evidence of the prosecution witnesses is false and he did not take any specific plea except his innocence. The learned counsel for the accused appellant would like to argue that the learned trial court relied upon the evidence of P.W.6 Vakta, P.W.7 China, P.W.8 Kali, P.W.11 Megha and P.W.13 Kalu S/o Pancha and also relied upon the evidence of P.W.17 Chhagan Rajpurohit and convicted the accused appellant for the offences charged. Learned counsel for the accused appellant argued that the statements of these witnesses are not trustworthy because all the witnesses in their statements stated that they reached the place of occurrence just after the occurrence and none of the witnesses deposed that he saw the accused appellant while firing the gun at deceased Uda, still the learned trial court drew inference of the commission of offence by the accused appellant and therefore, the judgment of conviction cannot be sustained. Page 8 of 12 D.B. Criminal Jail Appeal No. 1087/2004 Learned counsel for the accused appellant also argued that both the witnesses of the recovery memo did not corroborate the recovery of the gun and they resiled from the fact of the recovery of the gun vide memo Ex.P.8, which was made at the instance of the accused appellant in pursuance to the information recorded under Section 27 of the Indian Evidence Act (Ex.P.32), therefore, in the absence of the corroborative evidence of independent witnesses, the statement of P.W.17 Chhagan Rajpurohit could not be relied upon regarding the fact of recovery of the gun. Per contra, learned Public Prosecutor while defending the judgment of the learned trial court argued that the judgment of conviction and order of sentence passed by the learned trial court does not require any interference and it is based on proper appreciation of the evidence and the statements of all the witnesses clearly proves the guilt of the accused beyond reasonable doubt and therefore, the judgment of conviction and order of sentence passed by the learned trial court require to be affirmed by this court. We have considered the rival contentions made by both the parties and perused the judgment of the learned trial court. We have also perused the statements of the witnesses Page 9 of 12 D.B. Criminal Jail Appeal No. 1087/2004 and the documents and scanned and evaluated the oral as well as documentary evidence available on record. First of all we come to the evidence of P.W.10 Dr. Ravindra Yadav who deposed that on 10.05.2003 he conducted the autopsy on the body of the deceased Uda and he found penetrating wounds which were seven in number on the lower side of the nipple on the chest and there were black spots surrounding the wounds. There were four penetrating wounds on left lung and three penetrating wounds on the heart. As per his opinion the cause of death was due to the injuries caused by firearm, thus, in view of the statement of P.W.10 Dr. Ravindra Yadav, the death of deceased Uda was homicidal in nature. Now the question arises as to who was the author of the injuries due to which death of deceased Uda was caused. If we come to the statement of P.W.6 Vakta, P.W.7 Cheena, P.W.8 Kali, P.W.11 Megha and P.W.13 Kalu S/o Pancha, there is consistency in the statement of all these witnesses that they saw the accused appellant Narsa just after the incident running from the place of the incident with a gun in his hand and further P.W.11 Megha deposed that narsa fired the gun on Uda and he saw while Narsa was firing on Uda. Even in the cross- examination the statement of this witness could not be shattered and further just after the incident, all the other witnesses Page 10 of 12 D.B. Criminal Jail Appeal No. 1087/2004 referred above also saw the accused appellants while running from the place of incident. P.W.13 Kalu S/o Pancha also deposed that he saw that Megha caught hold of Narsa, but by forceful resistance he absconded from the place of occurrence. The statements of P.W.6 Vakta, P.W.7 Cheena, P.W.8 Kali, P.W.11 Megha and P.W.13 Kalu S/o Pancha inspire confidence and there is no material contradiction in the statements of these witnesses and their presence at the place of occurrence could not be shattered by any way and they being neighbours of the shop of Narsa, their presence at the spot was natural and they cannot be termed as trans witnesses. Further the statement of P.W.3 Prithvi Singh corroborates the fact that the gun was in serviceable condition and its barrel was broken in two parts. The pallets were forwarded to the ballistic expert and its report Ex.P.36 says that the barrel residue indicates that the gun submitted to the Forensic Science Laboratory was fired and it was further opined that the gun was in serviceable condition. The lead pieces forwarded by the Investigating Officer were found locally made and it was further opined that these lead pieces could have been fired by the damaged gun forwarded by the Investigating Officer. In view of the discussion made above, it is well- proved beyond any reasonable doubt that the accused appellant Page 11 of 12 D.B. Criminal Jail Appeal No. 1087/2004 Narsa on the date of the incident fired gun at deceased Uda and due to which death of deceased Uda was caused and at the relevant time, he kept in his possession and used a gun without valid licence of the competent authority. In this regard the evidence appreciated by the learned trial Judge does not require interference because when the fact of the firing of the arm is proved, then the recovery of firearm corroborated by the evidence of only Investigating Officer does inspire faith and confidence. Hence, the judgment of conviction and order of sentence passed by the learned trial court does not require any interference and the same requires to be affirmed and the appeal filed by the accused appellant deserves to be dismissed. Resultantly, the appeal filed by the accused appellant Narsa S/o Deeta Gameti is dismissed and the judgment of conviction and order of sentence dated 19.10.2004 passed by Additional District and Sessions Judge (Fast Track) No. 1, Udaipur in Sessions Case No. 94/2003 is affirmed. [KAILASH CHANDRA JOSHI],J. [PRAKASH TATIA],J. Pramod Page 12 of 12