IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.1449 of 2001 (Old No. 28 of 1996) Date of Decision: 07.05.2010 Hari Chand ……Appellant Versus State of U.P. (Now Uttarakhand) …..Respondent Mr. Lokendra Dobhal, learned counsel for the appellant. Mr. Nandan Arya, learned A.G.A. for the State/respondents. Dated 07th May, 2010 Hon’ble Nirmal Yadav, J. Accused appellant Hari Chand stood trial for offence under section 302 Indian Penal Code,1860 (for short I.P.C.) and under section 30 of the Arms Act. The trial court after taking into consideration the facts and circumstances of the case came to the conclusion that offence under section 302 I.P.C. is not made out and only a case under section 304-A I.P.C. is made out. Thus, the appellant was convicted under section 304-A and was sentenced to undergo rigorous imprisonment for one year. As regards the offence under section 30 of the Arms Act, the trial court was of the view that though the accused had contravened the provisions of section 30 of the Arms Act but he prosecution had failed to produce and prove the sanction of the District Magistrate to prosecute the accused under the said offence. Therefore, he could not be held guilty for the offence under section 30 of the Arms Act. The brief facts of the case are that on 11.03.1991 at about 10.00 a.m., deceased Smt. Pata Devi had gone to fetch grass in the Jungle and she did not return till the evening. Therefore, her husband Ratan Singh alongwith Rai Singh, Kamal Singh, Narain Chand and Ramu Nepali went in search of her. When they had covered a distance of 2 Km. from the village, Ratan Singh called out for his wife Smt. Pata Devi and after sometime, Smt. Pata Devi responded from the place near the water tank. Complainant and others reached the water tank and found Smt. Pata Devi lying there. On their enquiries, she informed that somebody had caused firearm injury to her. However, none was found in the close vicinity. Meanwhile, Narayan Chandra spotted one gun lying there. They picked up the gun and remoe Smt. Pata Devi for taking her for treatment to Uttarkashi Hospital. However, while she was being taken to the hospital, she died on the way. After sometimes Rai Singh brother of Ratan Singh submitted a written report (Ex-Ka-1) to Patwari Badeth. On the basis of complaint, Chick report (Ex.Ka-2) was registered in Police Station, Uttarkashi. G.D. (Ex.Ka-3) in this respect was also recorded. On 12.03.1991 at 10.30 a.m. the inquest was conducted by (PW-4) Chakradhar Semwal, Patwari who prepared inquest report (Ex.Ka-8). Rai Singh and Ratan Singh handed over the gun to Patwari Chakradhar Semwal which was picked up by them from the place of occurrence which was taken into the possession vide memo Ex-Ka-11. Since the cause of death was not known and death took place in suspicious circumstances, dead body was sent for post mortem to the District Hospital, Uttarkashi on 13.03.1991. The post-mortem was conducted on 13.03.1991 at 03.15 p.m. As per opinion of the Doctor, the death was caused due to shock and h emorrhage due to injury to internal organs by firearm injuries. Doctor found the following injuries on the person of the deceased:- (i) Lacerated wound 4.5 cm x 2 cm, 2cm above right iliac-crest –through & through lateral abdominal wall dark red blood clot. (ii) Abrasion 1cm x 1cm above injury no.1. (iii) Lacerated wound 1.5cm x 1cm above left iliac crest-through & through abdominal wall blood clot, bullets recovered from the body of the deceased were handed over alongwith dead body. Patwari Chakradhar Semwal recorded the statement of the witnesses and prepared site plan (Ex.Ka-5) with regard to the place of occurrence. On completion of investigation, challan was presented. Accused appellant Hari Chand was charge sheeted under section 302 IPC and under section 30 of the Arms Act for using the licensed gun in contravention of provisions of the Arms Act, to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case, produced (PW1) Rai Singh, (PW2) Narayan Chand, (PW3) Ratan Singh and (PW4) Patwari Chakrdhar Semwal, the investigating officer. The accused appellant when examined under section 313 Cr.P.C. denied all the incriminating evidence put to him by prosecution. He denied that he had made a trap (Phans) with his gun to cause the death to anyone who would touch the wire attached with the trigger of gun. According to him he had been implicated in the case because his gun was found lying there. But he again stated that somebody has taken his gun and he came to know about this fact on the next day. In support of this, he has produced his neighbour Sunder Singh (DW1). Learned counsel for the appellant submitted that admittedly, there is no eyewitness of the present occurrence. He further submitted that it is the admitted case of the prosecution that actually no one had fired the gunshot. The gun is alleged to have been fixed with some wooden poles with the help of strings, in such a way that if any person or animal while crossing touches the wire, the gun would operate itself and would cause injury to such animal or the person. Learned counsel for the appellant pointed out that prosecution even failed to prove that any such trap was made or fixed by the accused. He referred to FIR (Ex-Ka-1) wherein it is mentioned that Narayan Chand had noticed a gun lying there which was picked up by the complainant and his companion. In the FIR, complainant has not mentioned that any trap (Phans) was found at the spot, rather, it is stated that somebody had fired at Smt. Pata Devi. Learned counsel for the appellant further argued that even the articles which are alleged to have been used for making the trap i.e. two wooden poles and wires were not taken into custody nor they have been produced in the court. Learned counsel further argued that the gun and bullets which were recovered from the body of Smt. Pata Devi were not sent to Ballistic Expert for expert examination and no explanation has been given for the same which is a serious infirmity in the prosecution case. In his support, learned counsel for the appellant referred to the decision of Hon’ble Apex Court in the case of State of M.P. Vs. Surpa reported in [2003 Supreme Court Cases (Cri) 1221]. Learned counsel for the appellant further argued that as per conclusion arrived at by the learned trial court is that the trap might have been laid in the jungle by the accused for killing animals, but Smt. Pata Devi accidentally became victim with the same. It is also argued that trap was found in the field of one Kedar Singh and not in the field of the appellant, therefore, no conclusion can be drawn that accused had laid the trap for killing the animals. He had no reason to fix the trap in the land of other person as he would not have gained by doing so. On the other hand, learned A.G.A. argued that it is not disputed that gun recovered from the spot is the licensed gun of the accused. He has not given any satisfactory explanation as to how the gun was found at the place of occurrence. The plea of the accused that someone had taken his gun, can not be accepted. It is further argued that there is cogent and reliable oral evidence to prove that gun was used and Smt. Pata Devi received gun shot injury. He further submitted that nothing is on record that complainant had any enmity with the accused or he had any reason to falsely implicate him. On careful consideration of rival submissions and the material facts available on record, I am of the view that there is serious infirmity in the prosecution case. Admittedly, gun was produced by the Ratan Singh husband of the deceased and bullets were removed by the Doctor from the body of the deceased which were also forwarded to the Investigating Officer, but Bullets as well as the gun were not sent to the Ballistic Expert for expert examination. It was obligatory on the part of the prosecution to have sent the same for expert examination so as to connect the accused with the crime who was the licensed owner of the gun. In a case, where death is due to injuries caused by firearms, it is duty of the prosecution to prove by expert evidence that it was likely or at least there was possibility of the injuries having been caused with the alleged weapon and in the manner in which they are alleged to have been caused. In the present case, it is highly doubtful whether the injuries on the person of deceased were caused by gun which is alleged to have been produced by husband of the deceased before the police. The prosecution has miserably failed to prove that weapon allegedly recovered from the spot was in working condition and found fit for use. In the absence of such evidence, the conviction of the appellant can not be sustained. It is also not proved that bullets, which were recovered from the body of the deceased, were fired from the gun in question. In the absence of any such evidence, it is not at all proved that appellant’s licensed gun was used in the incident. Learned Trial court has ignored the most fundamental circumstances and decided the case merely on the basis of oral evidence of three witnesses namely Rai Singh (PW1), Narayan Chand (PW2) and Ratan Singh (PW3). Even the testimony of these witnesses do not prove that it was the accused who had laid the alleged trap. Rather complainant did not mention anything about the trap in the first information report. It is not proved from the statement of three witnesses that injuries on the person Smt. Pata Devi deceased could be caused by any trap as alleged by the prosecution. The finding of the trial court appears to be imaginary, as facts and other material for fixing alleged trap is not produced in the court. The investigating officer Chakradhar Semwal admitted that at the time of spot inspection, he did not find any pole and rope & string etc. He has simply shown the trap within site plan on the asking of the witnesses. He did not find any sign for fixing poles at the spot. He also admitted that field was lying vacant at the time of inspection. It is worthwhile mention that the place where trap is alleged to have been laid is to close the passes which meets to the villages and it appears highly improbable lying the trap to put the pedestrian in risk passing that passage. Moreover, FIR lodged in the case is highly belated. Occurrence took place during day on 11.03.1991 and FIR was lodged on 12.03.1991 at 10.30 a.m. The investigating officer inspected the spot on 15.03.1991. From the above facts, it clearly shows that entire prosecution case has been made out after due consultation and confabulation. In this state of evidence, coupled with the serious infirmity as pointed out in earlier part of the judgment i.e. not sending the recovered gun and bullets to ballistic expert. I am of the view that prosecution has failed to establish its case against the appellant beyond a reasonable doubt. Thus, accused can not be held guilty under any offence and conviction under section 304-A I.P.C. can not be sustained. I, therefore, allow the appeal, set aside the judgment and order dated 11.12.1995 passed by Sessions Judge, Uttarkashi and acquit the appellant. The appellant is on bail, his bail bonds are cancelled and his sureties are discharged. Since appellant is the owner of the licensed gun, the same shall be released after expiry of the period of the appeal. (Nirmal Yadav, J.) 07.05.2010 JKL