Allahabad High Court
Gopal Singh Gorkha vs State Of U.P. on 12 October, 1990
Equivalent citations: 1991CRILJ1235
JUDGMENT P.P. Gupta, J.
1. The above appeal is preferred by the accused Gopal Singh Gorkha against the judgment and order dated 21-4-1979, convicting the appellant Under Section 307, IPC and order dated 23-4-1979, sentencing him to undergo R.I. for 6 years, by Sri G.L. Shukla the then Sessions Judge, Almora in Sessions Trial No. 37 of 1974 (A).
2. The appellant was charged Under Section 307 IPC for having caused gun shot injuries to Hari Charan Bhatt (P. W. 1) on 3rd of August, 1974 at about 6-45 p.m. in Tok pathariya of the village Bhatnayajula within Patiwari Kshetra Gwala Kot of the Tehsil and district Almora in an attempt to murder him.
3. The facts, material for the purpose of this appeal, in brief, are indicated below :
There had been litigation between father of Hari Charan Bhatt (P. W. 1) and the appellant during the relevant period. The appellant had forcibly occupied the land of the injured and a case was pending in the court of S.D.M. Bara Mandal about it. Thus the appellant was on inimical terms with the injured.
4. On 3-8-1974, at about 3 p.m. the injured Hari Charan Bhatt (P.W. 1) and Tara Dutt Bhatt (P.W. 2) had gone to see a she-buffalo which the injured wanted to purchase. While returning they reached in the vicinity of the shop of Chandra Dutt where they found the appellant quarrelling with Pani Ram (P.W. 3). The injured Hari Charan Bhatt gave out that the appellant had in the beginning been indulging in abuses from his house only and now he had started doing the same at public place. On this criticism, the appellant went inside his house hurling abuses and threatening the injured who sat in front of his shop along the road. The appellant took out his gun from his house and fired a shot at the injured who received injury on the right calf of his leg. Thereafter, the injured Hari Charan Bhatt (P.W. 1) was taken on a truck by Tara Dutt Bhatt (P.W. 2) to the Headquarters of the 'Patwari' at Gwala Kot but the 'Patwari' was not available there with the result that they came to the Civil Hospital, Almora where the injured Hari Charan Bhatt was admitted.
5. On the next day i.e. 4th of August, 1974, the injured Hari Charan Bhatt dictated the written report, Ex. Ka-1, to Tara Dutt Bhatt who filed it at the Police Station Almora, where the chik report, Ex. Ka-6, was prepared by the Head Constable Kripa Ram.
6. Dr. A.C. Joshi, P.W. 7, examined Hari Charan Bhatt on 3-8-1974 in the District Hospital, Almora and prepared the injury report. Ex.Ka-9. His injury was also X-rayed and X-ray plate is Ex. 16. The injured was discharged from the Hospital on 9-8-1974. The Bed Head Ticket, Ex.Ka-12, was also proved by him. He conducted an operation on the injury on 5-8-1974 and taken out the metallic shot. Ex.Ka-4, which was sent to the office of Supdt. of Police.
7. The gun and the metallic shot extracted from the injury of the injured Hari Charan Bhatt were sent to Sri Prem Singh (P.W. 6), a Ballistic Expert. After examining the said fire arm and the metallic shot he arrived at the conclusion that the shot had been fired with the gun in question. He gave his report Ex.Ka-8.
8. The prosecution besides examining the injured Hari Charan Bhatt (P.W. 1), Sri Prem Singh (P.W. 6) and Dr. A.C. Joshi (P.W. 7) also examined Tara Dutt Bhatt (P.W. 2) and Pani Ram (P.W. 3) who are said to be the eye witnesses of the occurrence. Shri Narain Dutt Pandey (P.W. 4) who is the Investigating Officer in this case. Constable Ram Singh (P.W. 5) who proved the Chik Report Ex.Ka-6, and relevant entry in the General Diary and Shri Kam Roop Dandyal (P.W. 8), Naib Tehsildar, a formal witness.
9. On the totality of the evidence on record, it was held by the learned Sessions Judge that the appellant was guilty of an offence Under Section 307, IPC. Accordingly the appellant was convicted and sentenced as above.
10. It was argued on behalf of the appellant that there is variation in the FIR and evidence on material points and the learned Sessions Judge has wrongly placed reliance on the eye-witnesses. The corroborative evidence of the Doctor and Ballistic Expert is suspicious and does not corroborate an ocular evidence. It was further stressed that the witnesses of the locality who would have been the best persons to depose about the occurrence have not been examined.
11. The occurrence is said to have taken place at about 6-40 p.m. at a public place where admittedly large number of persons were present. It is admitted in the FIR that litigation between injured and the appellant was going on. On the date and time of occurrence the injured was sitting in front of his shop, by the side of the road, when the appellant came out of his house abusing him and fired shot with his gun, which hit him on his calf. The occurrence was seen by Tara Dutt Bhatt (P.W. 2), Chandra Dutt Bhatt, Govind Ballabh and others. Out of these three persons only Tara Dutt Bhatt has been examined. It has been admitted by him that the appellant is his nephew. The other witness examined by the prosecution is Pani Ram (P.W. 3). He is not named in the FIR. It is suggested that Paniram was 'Halwaha' of the injured on the date of occurrence.
12. In order to make the presence of Pani Ram natural on the date and time and place of occurrence, another story was set up during evidence. It has been introduced in evidence that when Hari Charan Bhatt (P.W. 1) and Tara Dutt Bhatt (P.W. 2) were returning after seeing the she-buffalo, they found the appellant quarrelling with Pani Ram who was being abused and kicked by the latter. The injured Hari Charan Bhatt accused the appellant that previously he had been indulging in abuses from his house but now he had started repeating the same at public place. It was on this criticism that the appellant went inside his house hurling abuses and extending threats to the injured who sat down in front of his shop along the road. The appellant took out the gun from his house and fired a shot at the injured who received injury on the calf of his leg.
13. It was submitted that the part of the story relating to the quarrel of the appellant with Pani Ram is not there in the FIR. It is also not in the FIR that on the date and time of the occurrence the injured was returning along with the witness Tara Dutt Bhatt (P.W. 2) after seeing a she-buffalo. It was argued that these facts have subsequently . been introduced in the evidence just to make the presence of Tara Dutt Bhatt and Pani Ram probable. It was, therefore, argued that the non-examination of the witnesses of the locality, in these circumstances, casts a serious doubt on the authenticity of the prosecution story.
14. FIR is a valuable piece of evidence inasmuch as it is the earliest version that can be compared with what is later told during the trial. All variations and omissions can be considered in judging the truth or otherwise of the version.
15. In the instant case the FIR only mentions this fact that on account of previous litigation, the appellant took out the gun from his house and fired a shot at the injured who was sitting in front of the shop along the side of the road which hit him on the calf of his leg. Pani Ram is not mentioned as a witness. Although Tara Dutt Bhatt is mentioned as a witness, but this fact that he had accompanied Hari Charan Bhatt that day to see a she-buffalo and while they were returning together this occurrence took place is not there. Similarly, the quarrel of the appellant with Pani Ram (P. W. 3) is not in the F.I.R. These facts have come in the statements of Hari Charan Bhatt (P. W. 2), Tara Dutt Bhatt (P.W. 2) and Pani Ram (P.W. 3). Thus there is subsequent improvement in the evidence over the FIR just to make the presence of Tara Dutt Bhatt and Pani Ram probable. In these circumstances, the non-examination of the witnesses of the locality who were admittedly there, casts a serious doubt on the authenticity of the prosecution story.
16. It may also be pointed out here that FIR is silent on the point as to on which leg the injured was hit. It is not mentioned therein whether the shot hit him on the calf of his right or left leg. This omission by itself may not be very significant. It, however, becomes significant because of the subsequent cuttings and over-writings in the injury report and the Bed Head Ticket.
17. The injured was examined by Dr. A.C. Joshi (P.W. 7) at G. P. Hospital Almora at 9-35 p.m. on 3-8-1974. Initially in the injury report the injury was mentioned over medial aspect of left calf. The word 'left' was cut and was substituted again by 'left' in another ink. Thereafter the word 'left' was again scored out and substituted by the word 'right' in another ink. The Doctor has not explained as to why the word 'left' was scored out twice in the injury report and was substituted by the word 'right'. The Bed Head Ticket of the patient is Ex. Ka-12. In this also the same has been repeated. It was on local examination that gun shot wound was found over left calf as was initially written in the Bed Head Ticket. Subsequently the word 'left' was cut out and was substituted by the word 'right' in another hand-writing and ink. Dr. A.C. Joshi (P.W. 7), has stated this bed Head Ticket is in the hand-writing of a junior Doctor who had initially written 'left' on it. Subsequently the word 'left' was scored out by him and was substituted by the word 'right' also by him. The junior Doctor has been examined. The circumstances under which the word 'left' was initially written, have not come on record what necessitated this cutting of the word 'left' and its substitution by the word 'right' is not clear. The Medico Legal Register in which the injury was initially entered has not been tendered in evidence by the prosecution. It is also noteworthy that in the report of the Ballistic Expert (Ex.Ka-8) also there is discrepency in paras 4 and 5 of the report. In para 4 it is mentioned that when the sealed bundle containing trousers of the injured was opened, blood stains and hole were found in the left leg. In para 5, however, the opinion recorded by the expert is that the hole found on the right leg of the trousers could be caused by the pellet that was extracted from the calf of the injured. Thus, there is discrepency in this report also regarding the hole and it is not clear as to whether the hole was on the right leg or on the left leg of the trousers of the injured. Thus I find that in the FIR it is not mentioned as to on which leg the injured had received the injury. There are cuttings in the injury report and Bed Head Ticket wherein initially 'left' was written but was subsequently scored out and substituted by the word 'right'. The junior Doctor who made the Bed Head Ticket entries has not been examined. From the report of the Ballistic Expert also it becomes suspicious as to whether the hole was on the right or left leg of the trousers of the injured.
18. It is also noteworthy that in the Bed Head Ticket no identification marks of the injured have been noted. It also does not bear his thumb impression or signature. Thus it cannot be said with certainty as to whether this Bed Head Ticket relates to the injured Hari Charan Bhatt (P.W. 1). On an analysis of the evidence, therefore, the injury report and the Bed Head Ticket become suspicious documents and on them no reliance can be placed. It is not proved that the Bed Head Ticket relates to Hari Charan Bhatt (P.W. 1). It is also not satisfactorily proved as to on which leg of the injured the injury was caused. Such a suspicious evidence of the Doctor cannot, therefore, help the prosecution.
19. Much reliance has been placed on the opinion of the Ballistic Expert. Findings of the Ballistic Expert are that the test shot fired by him on the trousers. Ex. 1, which the injured Hari Charan Bhatt was wearing at the time of the incident, made a hole similar to that through which the shot, Ex. 4, had passed and entered the right calf of Hari Charan Bhatt from where it was extracted by the Doctor. Admittedly the expert while firing the test shot did not use the pellet which was extracted from the calf of the injured and was said to have been fired from the gun, Ex. 3, belonging to the appellant.
20. The gun, Ex. 3, recovered from the appellant was muzzle-loading gun. In the muzzle-loading gun there is no opening at the rear end and essential ingredients like projecticles and gun powder are loaded separately through the muzzle end and rammed. It is designed to fire spherical projectiles which may consist of single ball or multiple projectiles known as shots/pellets, depending upon their size. Identification from fired shots/ pellets has a poor chance of success. The chance of learning something definite from shots/pellets is negligible. Nothing can be proved by ballistic evidence. As a general rule, the expert will not be frequently called upon to work on such projectiles.
21. In the instant case the Ballistic Expert Sri Prem Singh (P.W. 6) fired two shots on the trousers of the injured and on a comparison of the two holes created by these shots with the one already there, opined that the earlier hole could be caused by the pellet recovered from the calf of the injured. This is highly unsatisfactory and cannot be said to be the opinion of an expert.
22. An expert opinion in fire arms identification case should produce facts and not opinion which cannot be checked. Being the head of the Forensic Science Laboratory, the expert should know his responsibility towards the administration of criminal justice. He should give up the habit of producing his bald opinion. The expert should, if he expects his opinion to be accepted, put before the court, all the materials which induced him to come to his conclusion so that the court, although not an expert may form its own judgment on these materials. Bald opinions are of no use to the court and often lead to the breaking of very important links of prosecution evidence which are led for the purpose of corroboration.
23. The opinion given by Sri Prem Singh, Ballistic Expert, is bald and there is no data or reasons to arrive at the conclusion that the hole already there on the trousers of the injured could be caused by the pellet extracted from the calf of the injured. There is no opinion that the pellet extract from the calf of the injured could be fired from the gun, Ex. 3, belonging to the appellant, nor could it be possible for the expert to give such an opinion because the gun was a muzzle-loading gun. The size of the shot recovered from the calf of the injured is .5075". There is no evidence of the size of the shots that were fied by the expert. The shot extracted from the calf of the injured was admittedly not fired by the expert in the test firing. Thus his opinion that the hole found on the trousers of the injured could be caused by the pellet extracted from the leg of the injured cannot be accepted. This opinion cannot be called as an expert's opinion so as to corroborate the ocular evidence on record.
24. If the opinions of the Doctor and of the Ballistic Expert are ignored then the only evidence left is of the injured himself and of the two witnesses namely Tara Dutt Bhat (P.W. 2) and Pani Ram (P.W. 3). As has been stated above Tara Dutt Bhatt (P.W. 2) is admittedly the uncle of the injured. He claims to have gone along with the injured to see she buffalo at a nearby place and while returning this occurrence took place. But these facts are wanting in the FIR. Similarly, P.W. 3 Pani Ram has stated that the appellant was abusing him and assaulting him on the main road. The injured Hari Charan Bhatt and the witnesses Tara Dutt Bhatt who were returning after seeing-shet-buffalo saw this occurrence and accosted the appellant that he had become old enough to come out on the road and hurl abuses. These facts are also wanting in the FIR. These facts appear to have been introduced in the evidence simply to make the presence of Tara Dutt Bhatt and Pani Ram probable at the time of occurrence. A suggestion has also been given to Pani Ram that he was 'Halwaha' of the injured. In these circumstances the oral testimony does not repose much confidence.
25. It is also noteworthy that if the prosecution version is correct, the quarrel was going on between the appellant and Pani Ram. There was no occasion for the injured Hari Chand Bhatt to intervene and to pass any remarks against the appellant. This also makes the prosecution story highly unbelievable.
26. Thus a close scrutiny and analysis of the entire prosecution evidence show that some facts which were wanting in the FIR were introduced in the evidence in order to make the presence of Tara Dutt Bhatt (P.W.2) and Pani Ram (P.W.3) more probable. The occurrence took place in the evening on road when admittedly a large number of persons were present but none of them was examined. A great suspicion arises from the cuttings and over-writings in the injury report and Bed Head Ticket and also from the discrepency in paras 4 and 5 of the Expert's report, Ex.Ka-2. Opinion of Ballistic Expert cannot be said to be an expert opinion and has to be discarded outright. Enmity between the injured and the appellant is admitted. In these circumstances, the possibility of false implication of the accused cannot be ruled out.
27. Before parting with the case it may also be pointed out that the muzzle of the gun when it was recovered from the appellant was found full of rust which was indicative of the fact that it was not used at all since long. P.W. 6 Prem Singh, the Expert, did not make any chemical analysis of the ingredients found on the walls of the muzzle of the gun. He has vaguely denied that what was found on the walls of the muzzle was rust. It is significant to note that he has stated that the resudiary remains on the walls of the muzzle after the firing of test shots on analysis were found to contain lead and nitrate. This is highly misleading. Analysis of such remains after firing of test shots was not needed. It is clear that the contents found on the walls of the muzzle before firing of the test shots were not examined and so it cannot be said whether it was rust or traces of ammunition. Probably that the muzzle of the gun was full of rust at the time when it was recovered from the appellant cannot, therefore, be completely ruled out. That negatives the prosecution case that it was from the gun of the appellant that the shot in question was fired.
28. It has come in evidence that only one shot was fired. No pellets were found around the place of occurrence. Only one pellet entered the calf of the injured. It also seems highly improbable that the appellant would have chosen such an occasion to hit the injured when by his side in close proximity 3 or 4 other persons were also sitting.
29. In view of the above discussion, the prosecution has not successfully proved its case against the appellant and so the conviction of the appellant on the evidence on record cannot be sustained. The appeal must, therefore, be allowed.
30. The appeal is accordingly allowed and the order of conviction and sentence passed on the appellant are set aside. The appellant is on bail. His bail bonds are discharged. He need not surrender.