C.K. Thakker, J.
The present appeal is filed by the
appellant-accused against the order of conviction and sentence recorded
by the High Court of Uttaranchal on October 25, 2005 in Government
Appeal No. 1006 of 2001. By the said order, the High Court set aside the
order of acquittal recorded by Sessions Judge, Chamoli on February 6,
1981 in Sessions Trial No. 15 of 1979, convicted the accused for an
offence punishable under Section 302, Indian Penal Code (IPC) and
ordered him to undergo imprisonment for life.
2. Shortly stated the prosecution
case was that one Pushu had two sons (i) Bhawan Singh and (ii) Bhag
Chand. Bhawan Singh had no issue and he died leaving behind him his
widow Smt. Rukmani Devi. Bhag Chand also died leaving behind him four
sons; (i) Shivraj Singh, (ii) Indra Singh, (iii) Rajpal Singh (deceased)
and (iv) Puran Singh (accused). All the four brothers (sons of Bhag
Chand) were residing in a jungle at a distance of about two kilometers
from village Akhori, Patwari Circle Barab, Tehsil Ukhimath, District
Chamoli. There were frequent quarrels between accused Puran Singh on the
one hand and other three brothers on the other hand in connection with
the property owned and possessed by Rukmani Devi. According to the
prosecution, Rukmani Devi had gifted her property by a registered
gift-deed to accused Puran Singh depriving other three brothers from her
share. On August 3, 1979 at about 4 p.m., PW5 Smt. Ramdei, daughter of
PW4 Shivraj Singh who had come to her parental house at village Akhori
was grinding paddy with her deaf and dumb mother Smt. Swanri Devi near
her house. At that time, accused Puran Singh came towards the cattle
shed of Shivraj Singh and started beating she-buffalo of Shivraj Singh.
Smt. Ramdei and her mother raised an objection. Accused got enraged and
caught the wife of Shivraj Singh by her hair in order to beat her.
Shivraj Singh happened to reach there and cautioned the accused.
The accused went inside the room,
brought his licensed gun and fired a shot towards Shivraj Singh who
luckily escaped unhurt. On hearing the noise, other two brothers of
Shivraj Singh, PW2 Indra Singh and Rajpal Singh (deceased), came out to
inquire as to what had happened. The accused started showing his anger
towards them also. Both of them, therefore, decided to retreat from
there. They were, however, chased by the accused who was carrying his
gun. PW2 Indra Singh asked Rajpal Singh (deceased) to run fast so that
they may be saved. Rajpal Singh, unfortunately, turned his face backward
to see as to how far away was the accused from him.
The accused fired and the gun shot
hit Rajpal Singh on his face and head. Rajpal Singh fell down on the
ground. In the meanwhile, PW3 Smt. Bardei, wife of Indra Singh and PW6
Bimala, minor daughter of Rajpal Singh along with other children and
family members reached near the place of incident. They could thus see
the incident. Indra Singh was threatened by the accused and he went
inside his house and got himself saved. Rajpal Singh became unconscious
and remained as such till he was declared dead.
3. Initially, a case was registered
against the appellant-accused in the First Information Report (FIR) for
an offence punishable under Section 307, IPC as also for an offence
punishable under Sections 25 and 27 of the Arms Act, 1959. After the
death of Rajpal Singh, however, the charge was framed for committing an
offence punishable under Section 302, IPC. The case was committed to the
Court of Sessions, Chamoli. A plea of the accused was recorded wherein
he denied to have committed any offence, and claimed to be tried.
4. In order to establish the case
against the accused, the prosecution examined eight witnesses. Out of
them four witnesses were eye-witnesses, viz., PW2 Indra Singh, PW3-Smt.
Bardei, PW5 Smt. Ramdei and PW6 Kumari Bimala. It also examined PW1
Pratap Singh- Pradhan of the village, PW7 Dr. D.C. Awasthi and PW8 Mitra
5. So far as death of the deceased
Rajpal Singh is concerned, there is no dispute that he died homicidal
death and it was due to firearm injuries sustained by him. PW7
Dr.Awasthi, who performed postmortem, found the following injuries on
the body of the deceased;(1) Fire arm injury 1= cm in diameter circular
in shape with inverted margins on right side of scalp parietal region, 5
cm above the top of right ear and 10 cm from the outer corner of the
right eye with tattooing (impregnated black carbon particles) over an
area of 12 cm X 10 cm over the right side of face, forehead and around
the wound. It was wound of entry.
(2) Fire arm lacerated injury oval
shaped 2= cm X 1 cm with irregular everted margins 2 cm behind injury
No.1. Clotted blood was present around it. It was wound of exit.
(3) Fire arm lacerated wound 1 cm X
= cm irregular in shape, 2 cm below and behind injury No.2. It was wound
(4) Fire arm lacerated wound 1 cm X
> cm irregular in shape, 2 cm behind injury No.2. It was wound of exit.
6. It was, therefore, clearly proved
by the prosecution that the death of deceased Rajpal Singh was homicidal
in nature and it was because of the gun injuries sustained by him.
7. The trial Court considered the
evidence of eye-witnesses and observed that except minor contradictions,
there was no inherent improbability in their evidence. He, however,
observed that from the evidence of Investigating Officer and the entries
made in the Check Register that FIR and the relevant G.D. entries of the
registration of the case, were made at a subsequent stage on some other
date and not on August 3, 1979. There was thus every occasion for
consultation and afterthought. The trial Court also observed that the
accused stated that Rajpal Singh (deceased) was injured by a shot fired
from the gun carried by a co-villager (Bachan Singh) when the deceased
had gone for hunting with his brother Indra Singh and Bachan Singh
(co-villager). According to the trial Court, it might or might not be so
but in view of suspicious circumstances, it could not be said that the
prosecution had succeeded in establishing the guilt of the accused to
the hilt and beyond all reasonable doubts. In that view of the matter,
according to the trial Court, the accused was entitled to benefit of
doubt. Accordingly, the trial Court acquitted the accused.
8. Being aggrieved by the order of
acquittal recorded by the Sessions Court, the State preferred an appeal
under Section 378 of the Code of Criminal Procedure, 1973. It was
contended by the State that once the evidence of prosecution witnesses
was believed by the Court and it observed that there was no reason to
disbelieve the said evidence, the Court ought to have convicted the
accused. It was urged that when the trial Court did not find material
contradiction or inherent improbability in the prosecution evidence, the
Court was wholly wrong in acquitting the accused.
9. The High Court re appreciated the
evidence of witnesses and held that the order of acquittal recorded by
the trial Court was wholly unsustainable and totally unwarranted.
Accordingly, the High Court set aside the order of acquittal and
convicted the accused- appellant herein for an offence punishable under
Section 302, IPC and ordered him to undergo rigorous imprisonment for
life as observed earlier.
10. The accused has challenged the
order of conviction and sentence recorded by the High Court by filing
the present appeal. On April 10, 2006, appeal was admitted and notice
was issued on prayer for bail. On November 24, 2006, when the matter was
called out, the Court fixed final hearing of the appeal and observed
that in view of that order, it was not necessary to deal with bail
application. Appeal is accordingly placed before us for final hearing.
11. We have heard learned counsel
for the parties.
12. The learned counsel for the
appellant raised several contentions. In our opinion, however, it is not
necessary to deal with all the contentions in view of the fact that the
appeal deserves to be allowed on a short ground.
13. The learned counsel for the
appellant urged that from the opinion of the Ballistic Expert, it was
clear that the bullet which caused the injury to the deceased was not
fired from the gun said to have been used by the appellant, recovered
from him and was examined by the Forensic Science Laboratory. If it is
so, the prosecution was not successful in bringing home the guilt of the
accused and in establishing that it was the gun of the accused which had
caused firearm injury to deceased Rajpal Singh which resulted in his
14. The learned counsel for the
State, on the other hand, submitted that the point raised by the learned
counsel for the accused in this Court was neither raised before the
Sessions Court (Trial Court) nor before the High Court (Appellate
Court). No such point, hence, can be permitted to be raised in this
Court for the first time in an appeal under Article 136 of the
15. We would have indeed considered
the submission of the learned Government Advocate but for the fact that
there is sufficient evidence on record to show that what is sought to be
contended by the learned counsel for the accused in this Court has
substance and sufficient material is already on record in support of
16. We have been taken by the
learned counsel for the parties to the record of the case. Exhibit Ka.3
is the Arrest Panchnama dated August 4, 1979 when the accused was
apprehended at about 8 a.m. in the morning. In the memo of arrest as
also in seizure memo, it was stated that no article was recovered from
the body of the accused and nothing was seized by the police . The
accused had nothing except wearing clothes. In Daily Diary by Patwari
Circle, Barab, Tehsil Okhimath dated August 4, 1979, it was mentioned
that the Patwari started to the place of occurrence from village
Senagadmari at about 5.30 a.m. on August 4, 1979. At the place of
occurrence, he found injured Rajpal Singh in the custody of villagers.
The injured was breathing but was unconscious. The patwari tried to
inquire about the incident from Rajpal Singh but the latter could not
speak. Though treatment was given to the injured, he died. Inquest
panchnama was thereafter prepared in presence of persons who were there.
The FIR was registered under Section 307, IPC on the basis of the report
dated August 3, 1979 by Partap Singh, Pradhan, but Rajpal Singh died and
the case was registered under Section 302, IPC. It was stated that as
the death of the injured Rajpal Singh was caused due to intentional gun
shot by accused Puran Singh S/o Bhag Chand, therefore, the accused Puran
Singh is taken into custody and the weapon used in murder i.e. gun
1319/V-1970, Licence No. 697/Mly-74 and two empty cartridge Bore-12
recovered from the accused and sealed it at the spot in presence of
17. Seizure Memo was prepared on the
same day which reads thus:
Today on dated 4.8.79 in presence of (1) Shri Pratap Singh, Pradhan
Village Panchayat Akhori, (2) Shri Bachan Singh S/o Ram Singh, (3) Shri
Bhopal Singh S/o Tilak Singh, Village Akhori, Circle-Barab in the case
No.4/79 State through Pratap Singh, Pradhan, Gram Panchayat Akhori
versus accused Puran Singh s/o Bhag Chand, village Akhori, U/Sec.302 IPC
and 25/27 Arms Act, the licensed gun of accused called and ammunition
was also called. Then the accused Puran Singh handed over to police his
single barrel gun, bullet
12 bore No.1319 V-1970, licence
No.697/ML4/34-V, booklet, two empty cartridges on which KF-12 Special 12
is written made in India by ORDINANCE FACTORIES and it was seized by
police. Accused was asked to handover other ammunition. The availability
of which accused denied. When the gun was open it was not loaded with
cartridges. The above recovered article was put in separate sack/packet
and sealed. The memo was prepared in presence of witness and their sign
was taken .
18. It is thus clear that even according to the prosecution, the weapon
used by the accused for commission of crime i.e. causing death of
deceased Rajpal Singh was recovered along with two empty cartridges. The
mudamal gun as also empty cartridges were then sent to the Forensic
Science Laboratory, Lucknow, which were examined by the Laboratory.
19. The prosecution witnesses who
were cited as eye-witnesses and examined on oath have also stated that
the gun used for commission of offence was recovered and the injuries
were caused to the deceased by the accused from the said gun. For
instance, PW2-Indra Singh was shown gun (Ext.1) and it was observed by
the trial Court that on seeing the gun Ex.1 the witness told that this
is that gun from which Puran Singh fired bullet . Similarly, PW4-Shivraj
Singh stated that it was the same gun. In para 6, it is observed;
Witness was shown Ex.Ka-1. He said that from this gun Puran Singh fired
20. So far as medical evidence is
concerned, PW7-Dr. Awasthi had to say this:
In my opinion, the death was due to coma which was as a result of head
injury caused by the discharge of some arm fire, which was sufficient in
the ordinary course to cause death .
21. PW8 Mitra Nand, Patwari stated in his substantive evidence, that he
went to the house of the accused and arrested him. He further stated
that the accused gave him his licensed gun of single barrel twelve Bore
(Ex.1) and two Cartridges (Ext.6&7) which were sealed separately.
22. The Report of Forensic Science
Laboratory dated November 28, 1979 is also on record. It states that the
Laboratory received a letter from Chief Judicial Magistrate, Chamoli (Gopeshwar)
along with two 12 bore K.F. Special emptied cartridges marked as E.C.1 &
2 and one piece of gun 12 bore single barrel No.1319. It was then stated
that the examiner fired five shots from the gun which were marked as T.C.
1 to T.C. 5. T.C.1, T.C.2 and T.C.5 misfired and rest fired
successfully. Regarding E.C.1 and E.C.2, it was stated that there had
been signs of firing pin. But on E.C.2, the signs were not specific. Cap
of E.C.1 had sign of breach and E.C.2 had minor sign of breach. On the
basis of the examination, a conclusion was given which is in the form of
result which reads as under:
Result : (A) The cartridge in question E.C.1 was not fired from the
single barrel 12 Boe No. 319 marked 1/79 gun.
(ii) The cartridge in question E.C.2
has no comparative feature with shot fired from gun No.1319 12 bore
(B) On the chemical examination of
fouling matter from the gun the nitrate was found from the gun so it is
concluded that after last shot the gun was not cleaned but on 3/8/79
whether or not shot was fired from gun designative scientific opinion is
not a possibility. (emphasis supplied)
23. It is thus clear that as per
Ballistic Expert s opinion, cartridge E.C.1 was not fired from the
single barrel 12 bore No. 1319 said to have been used by the accused. In
our opinion, therefore, the appellant accused is entitled to benefit of
24. For the foregoing reasons, the
appeal deserves to be allowed and is accordingly allowed. The order of
conviction and sentence recorded by the High Court is set aside and the
appellant is given benefit of doubt and is ordered to be acquitted.
Since the appellant is in jail, he is ordered to be released forthwith
if his presence is not required in any other case.
25. The appeal is accordingly
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