Gujarat High Court
Vishrambhai Shingabhai Suvera vs State Of Gujarat on 3 August, 2022
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 767 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI Sd/-
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VISHRAMBHAI SHINGABHAI SUVERA
Versus
STATE OF GUJARAT
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Appearance:
(MR KUNAL B DAVE)(3706) for the Appellant(s) No. 1
MR BC DAVE(245) for the Appellant(s) No. 1
MR HS SONI, PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 03/08/2022
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. This appeal is filed under Section 374(2) of the Page 1 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 Code of Criminal Procedure, 1973 (in brief, 'the Code', challenging the judgment and order, Dated:
18.03.2013, passed by the learned 4th (Ad Hoc) Additional Sessions Judge, Sabarkantha at Modasa (referred to as the 'trial Court', herein after), in Sessions Case No. 63 of 2011, whereby, the trial Court convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code, 1860 ('IPC', in short) and sentenced him to undergo imprisonment for life and for the offence punishable under Section 307 of the IPC to undergo rigorous imprisonment for five years and to pay fine of Rs.1000/- and in default to undergo further simple imprisonment for three months. The trial Court also convicted the appellant for the offence punishable under Section 25(1B)(a) of the Arms Act, 1959, and sentenced him to undergo rigorous imprisonment for two years and to pay fine of Rs.1000/- and in default to undergo further simple imprisonment for three months.
1.1 All the sentences are ordered to run concurrently.
2. The brief facts of the case of the prosecution, as unfurled before the trial Court, are as under;
A complaint was given by one Natvarbhai Somabhai Suvera-PW 4 on 20.03.2011, before Meghraj Police Station, wherein, he stated that on 19.03.2011 the Holi pyre was set in the filed of one Laljibhai Page 2 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 Kamajbhai Suvera. It is, further, stated in the complaint that, as per the custom of their village, since, the festival of Dhuleti, i.e. the next day of festival of Holi, the celebrations with colour were to be done at the place, where, the Holi pyre was set, the people of the village started gathering at the agricultural filed of Laljibhai Kamajibhai in the afternoon at about 02:30 pm. The agricultural filed, where, the villagers were celebrating Dhuleti is situated on the road leading to village Kundla from village Naranpur.
2.1 It is, further, stated in the complaint that while the festivities were going on, at that point of time, the appellant, herein, who is an ex-employee of Central Reserve Police Force and was having a licensed double barrel gun, came there with his gun.
2.1.2 After reaching the border of the agricultural filed, the appellant held his gun high towards the sky with his both hands and shouted towards the villagers to get ready. It is stated in the complaint that, since, the appellant was having the licensed gun and as he used to fire bullets from the said gun at the time of night many a times, the villagers did not pay any attention to the appellant.
2.1.3 The appellant, thereafter, fired one round in the air and then, he fired the second round towards the villagers, but, the same did not cause any injury to anyone.
Page 3 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 2.1.4 The appellant, then, pulled out the cartridges, which were kept in the belt worn by the appellant around his waist, and again loaded his gun with the same and moved towards the crowd. The appellant, then, stopped at a distance of about 35-40 feet from the crowd. At that time, the nephew of the appellant, namely Shailesh, went towards the appellant to persuade him not to fire any more rounds. At that time, the appellant aimed his gun towards Shailesh and fired one round, which hit on the abdomen of Shailesh and he immediately fell down on the ground.
2.1.5 On account of the above, the people started running here and there in fear. The appellant, then, fired another round, which went past, slightly brushing the left thigh of the complainant and on account of that handkerchief and the trouser of the complainant slightly got torn / burnt.
2.1.6 Thereafter, the appellant again loaded his gun and fired two rounds, out of which, one round went past, brushing the left thigh of one Nandaben Maganbhai Suvera-PW 5, whereas, the other round went past through the saree and petticoat of Hiraben Khatubhai Suvera-PW 8.
2.1.7 The complainant, further, stated in the complaint that despite of the above, the appellant continued to fire rounds from his gun Page 4 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 indiscriminately at the crowd and on account of that one Lilaben Shantilal Suvera, who was attempting to run away from the place of offence, sustained injuries on both her buttocks.
2.1.8 According to the complainant, the reason for the alleged incident was the dispute amongst the family members with regard to ancestral property.
2.2 After the registration of the FIR, the investigating agency carried out the investigation and collected various evidences oral as well as the documentary. The reports of FSL and the opinions of scientific officers / experts in the form of report were also collected.
2.3 On completion of the investigation, police filed the charge-sheet before the Court of learned Magistrate. However, since, the case was exclusively triable by the Court of Sessions, the case was committed before the Sessions Court or the trial Court.
2.4 Before the Trial Court, the prosecution examined as many as 23 witnesses, the details whereof are as under;
PROSECUTION NAME OF THE WITNESS EXHIBIT
WITNESS NUMBER
NUMBER
1 Dr. Kamlesh Bhagwanbhai 14
Parmar
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2 Dr. Mohanbhai Dahyabhai Patel 20
3 Dr. Sanatan Krishnakant 25
Vaishnav
4 Natvarbhai Somabhai Suvera 28
5 Nandaben Maganbhai Suvera 30
6 Maganbhai Rupsibhai Suvera 31
7 Jayeshbhai Somabhai Suvera 33
8 Hiraben Khatubhai Suvera 36
9 Lilaben Shantilal Suvera 37
10 Mavjibhai Becharbhai Suvera 38
11 Vindobhai Kantibhai Suvera 43
12 Raichandbhai Somabhai Damor 45
13 Rasikbhai Hirabhai Bhagora 47
14 Rahimbhai Ahmedbhai Laheri 50
15 Amratbhai Surjibhai 51
Ambaliyara
16 Daljibhai Hirabhai Bamaniya 52
17 Jagatsinh Jawansinh Zala 54
18 Bhamarsinh Harisinh Rathod 56
19 Dilipbhai Harjibhai Suvera 57
20 Shaikh Mohammed Jakir Abdul 59
Ajiz
21 Laxmanbhai Kavaji Ninanma 62
22 Dilipsinh Kalusinh Rathod 64
23 Bhikhabhai Kanabhai Bharwad 70
2.5 Over and above the oral evidence, the
prosecution also produced the following documentary evidences;
SERIAL NAME OF THE WITNESS EXHIBIT NUMBER NUMBER Page 6 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 1 Office copy of the memorandum 15 prepared by the IO for carrying out post mortem 2 Office copy of the police report 16 sent by the IO for carrying out post mortem 3 Original post mortem report of the 17 deceased person 4 Cause of Death certificate 18 5 Memorandum, along with which the 19 blood sample of the deceased was sent to FSL 6 Original treatment certificates 21 to 23 7 Memorandum sent for obtaining 24 original treatment certificates 8 Original injury certificate of the 26 injury sustained by the witness, Lilaben Shantilal Suvera 9 Original Refer Chit 27 10 Original complaint / FIR 29 11 Original panchnama of the place of 39 offence 12 Panchnama of seizure of muddamal 40 trouser 13 Original panchnama of seizure of 41/42 muddamal saree and petticoat 14 Original inquest panchnama of the 44 deaceased 15 Original panchnama of the seizure of 46 the clothes worn by the deceased at the time of incident Page 7 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 16 Original panchnama of seizure of 48 muddamal gun from the accused 17 Original panchnama of seizure of the 49 clothes worn by the accused at the time of incident 18 Panchnama of seizure of the clothes 52-A
worn by the injured witness, Lilaben Shantilal Suvera 19 The muddamal articles recovered from 53 the agricultural filed of the accused, viz. Clothe belt, live cartridges, empty shells of the cartridges etc..
20 The original panchnama of seizure of 55empty shells of the cartridges as well as the arms license, with the photo of the appellant-accused, from the house of the accused 21 FSL report of the place of offence 60 22 Original copy of the Station Diary 63 23 Memorandum sent by police to FSL for 66 analysis of the muddamal articles 24 Original FSL report 68 25 Biological / Serological report of 71 FSL 26 Original Notification of the 72/73 Executive Magistrate with regard to prohibition on carrying of arms 2.6 On completion of the trial, further statement of the appellant-accused under Section 313 of the Code came to be recorded by the trial Court and Page 8 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 thereafter, the trial Court passed the judgment and order of conviction, as referred to in Paragraph-1, herein above.
2.7 Hence, the appellant has preferred the present appeal.
3. Heard, learned Advocate, Mr. Dave, appearing for the appellant and learned APP, Mr. Soni, for the Respondent-State.
4. Learned Advocate, Mr. Dave, referred to the depositions of the prosecution witnesses as well as to the documentary evidence produced by the prosecution against the appellant and submitted that Dr. Kamlesh Bhagwanbhai Parmar-PW-1, Exhibit-14, who had carried out the post mortem of the body of the deceased, did not specifically opine that the death of the deceased was a homicidal one.
4.1.1 Learned Advocate, Mr. Dave, referred to the cross-examination of PW-1 and stated that the said witness conceded that he has not specifically observed in Column-17 of the PM report that the bullet injury, from entry point to exit point, was either parallel or upward to downward or downward to upward.
4.1.2 Learned Advocate, Mr. Dave, further, pointed out that PW-1 also conceded, after he was shown Muddamal Article No.3-cartridge, that he could not Page 9 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 say with certainty, as to whether, as a result of firing of such cartridge, the injuries shown in the PM report could be caused or not and as to whether, the same could be serious enough to cause death or not.
4.1.3 Learned Advocate, Mr. Dave, also invited the attention of this Court to the aspect that PW-1, in his cross-examination, also conceded that, if, a pointed and hot iron rod with 8 mm diameter is pierced into the body of the deceased and pulled out, then, the injuries mentioned in post mortem report could be possibly caused.
4.1.4 Learned Advocate, Mr. Dave, further stated that PW-1 also conceded that he cannot say with certainty, as to what type of fire arm was used.
4.2 Learned Advocate, Mr. Dave, then, referred to the deposition of Dr. Mohanbhai Dahyabhai Patel-PW-2, Exhibit-20, who had given the treatment to the injured witnesses, i.e. PW-5-Nandaben and PW-9- Lilaben.
4.2.1 In his cross-examination, PW-2 conceded that it is true that there is no mention made in Treatment Certificates, Exhibits-22 and 23, as to who had given the history.
4.2.2 PW-2 also conceded that it is true that in the injury certificates, Exhibits-21 to 23, the type Page 10 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 of injury, the size of injury as well as the weapon with which such injuries were caused and with how much force etc. is not mentioned.
4.2.3 PW-2 also stated that he cannot say with certainty, as to how the injuries mentioned in the Injury Certificates, Exhibits-21 to 23, were caused.
4.2.4 Learned Advocate, Mr. Dave, also invited the attention of this Court to the fact that PW-2 conceded that he is agreeing with the facts mentioned at Page Nos. 273 to 276 of the Modi's Textbook of Medical Jurisprudence and Toxicology.
4.3 Learned Advocate, Mr. Dave, then invited the attention of this Court to the deposition of Dr. Sanatan Krishnakant Vaishnav-PW-3, Exhibit-25, who had examined and treated the injured witness Lilaben- PW-9, and submitted that PW-3, in his cross- examination, conceded that he did not mention the age of injury in the certificate.
4.4 Learned Advocate, Mr. Dave, then, referred to the evidence of Natvarbhai Somabhai Suvera-PW-4, i.e. the original complainant, Nandaben-PW-5, Maganbhai- PW-6, Jayesh-PW-7, Hiraben-PW-8 and Lilaben-PW-9, who was an injured witness, and submitted that the aforesaid witnesses are the interested witnesses and therefore, they did not state correct facts in their depositions.
Page 11 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 4.4.1 While referring to the cross-examination of PWs- 4 to 9, learned Advocate, Mr. Dave, submitted that there are a number of omissions and contradictions in the evidence of these witnesses and therefore, the trial Court ought not to have relied on the depositions of the said witnesses.
4.5 Learned Advocate, Mr. Dave, next referred to the deposition of Raichandbhai Somabhai Damor-PW-12, who was one of the panch witnesses to the panchnama of the seizure of the clothes of the deceased, and Rahimbhai Ahmedbhai Laheri-PW-14, who was one of the panch witnesses of the panchnama of the seizure of the clothes worn by the accused at the time of commission of the alleged offence. Both these witnesses turned hostile and did not support the case of the prosecution qua the contents of the respective panchnamas and therefore, they were declared hostile.
4.5.1 Similarly, Jagatsinh Jawansinh Zala-PW-17 and Bhamarsinh Harisinh Rathod-PW-18, who were the panch witnesses of the panchnama of the seizure of empty shells of the cartridges from the house of the accused also did not support the case of the prosecution. Hence, These witnesses were also declared hostile.
4.6 Learned Advocate, Mr. Dave, then, invited the attention of this Court to the deposition of Laxmanbhai Kalaji Ninama-PW-21, who was discharging duties as the Police Station Officer at Meghraj Page 12 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 Police Station, at the time of commission of alleged offence, and Dilipsinh Kalusinh Rathod-PW-22, who was discharging duties at Meghraj Police Station, at the relevant point of time, and submitted that the evidence of these witnesses also do not help the case of the prosecution.
4.7 Learned Advocate, Mr. Dave, thereafter, referred to the deposition of Bhikhabhai Kanabhai Bharwad-PW- 23, who had filed the charge-sheet in this case, and submitted that the IO falsely implicated the present appellant in the alleged offence on account of old animosity between the appellant-accused and the complainant side.
4.8 Learned Advocate, Mr. Dave, while referring to the FSL report, submitted that the prosecution did not examine the Ballistic Expert and therefore, in absence of examination of such an expert, the report of FSL ought not to have been relied on by the trial Court.
4.9 Learned Advocate, Mr. Dave, therefore, urged that the trial Court ought to have held that the prosecution has failed to prove its case against the appellant beyound reasonable doubt and thereby, the trial Court ought to have acquitted the appellant. It was, therefore, prayed that the present appeal be allowed.
5. On the other hand, learned APP, Mr. Soni, Page 13 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 strongly opposed this appeal and referred to the depositions given by the prosecution witnesses so also the report of the FSL and other documentary evidences.
5.1 Learned APP, Mr. Soni, referred to the FIR, being I-C.R. No. 14 of 2011, registered with Meghraj Police Station under Sections 302, 307 of the IPC and Section 25(1)BA of the Arms Act so also Section 135 of the Bombay Police Act, and submitted that the same was filed against the appellant on 20.03.2011, i.e. on the very date of the commission of the alleged offence.
5.2 Learned APP, Mr. Soni, invited the attention of this Court to the FIR, being I-C.R. No. 15 of 2011, registered with Meghraj Police Station, which was filed by the appellant on the date of the offence, i.e. on 20.03.2011, and submitted that in the said FIR, the appellant, himself, has stated that the concerned accused of the said FIR had gathered near his house and they started pelting stones and therefore, he, i.e. the appellant, had fired about five shots from his licensed gun, i.e. muddamal Article No.13.
5.2.1 While referring to the FIR filed by the appellant, learned APP, Mr. Soni, submitted that the appellant in the FIR filed by him has stated that he had fired gun-shots in self-defence, whereas, before the trial Court his case was that he was falsely Page 14 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 implicated. Thus, learned APP, Mr. Soni, submitted that there being contradictions in the stand taken by the appellant in his FIR as well as the defence raised before the trial Court, the trial Court has rightly not believed the same.
5.3 Learned APP, Mr. Soni, submitted that the present is a case of direct evidence, where the alleged offence took place in broad day-light and in the presence of a number of persons and out of them, some were witnesses and injured witnesses, who were examined by the prosecution at the time of trial to prove its case.
5.4 Learned APP, Mr. Soni, submitted that the double barrel gun, which was used in the commission of the alleged offence, i.e. Muddamal Article No.13, was discovered at the instance of the appellant vide Panchnama, Exhibit-48.
5.5 Learned APP, Mr. Soni, also referred to the Panchnama, Exhibit-55, i.e. the panchnama of the seizure of empty shell of the cartridges and the license of the gun from the house of the appellant, and submitted that the said muddamal articles were seized from the suitcase made from galvanized sheet, which belonged to the appellant.
5.6 Learned APP, Mr. Soni, also invited the attention of this Court to the report of FSL as well as of Ballistic Expert and submitted that both the Page 15 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 reports support the case of the prosecution, and therefore, the trial Court rightly held that the prosecution successfully proved the case against the appellant beyound reasonable doubt.
5.7 In support of his submissions, learned APP, Mr. Soni, placed reliance on the decision of the Apex Court in the case of 'VINEET KUMAR CHAUHAN VS. STATE OF U.P.', (2007) 14 SCC 660.
5.7.1 Referring to the aforesaid decision of the Apex Court, learned APP, Mr. Soni, submitted that it is not necessary to examine the Ballistic Expert for the purpose or proving the report / opinion given by the concerned expert.
6. We have heard the learned Counsels for the parties and perused the material on record, oral as well as the documentary. From the record, it transpires that in the alleged offence, one person expired, whereas, three other persons received gun- shot injuries.
6.1 Dr. Kamlesh Bhagwanbhai Parmar-PW-1, Exhibit-14, who had carried out the PM of the dead body of the deceased Shailesh Maganbhai Suvera, in his deposition specifically stated that he had seen one gun-shot entry wound on the dead-body, which was on the right side of the abdomen, in the hypo condiac area in the middle of the celvical bone, which was at a distance of 20 cms. from nipple, 10 cms. from belly button and Page 16 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 106 cms. away from heel of the right leg and it was going towards upper-backside, going deep inside the body. The size of the said gun-shot was 8 m.m. and the colour of the skin around the gun-shot wound of about 4 m.m. had become black.
6.1.1 This witness had also noticed the exit wound on the dead-body, which was at a distance of about 10 cms. Of the left lumber area, passing through the middle back-bone line and was 114 cms. away from the heel of the leg. The exit wound was round in shape and its size was about 12 mm. and the colour of the skin around the gun-shot wound of about 4 m.m. had become black.
6.1.2 According to PW-1, the cause of death of the deceased was due to hemorrhagic shock caused on account of the injury sustained on the spleen and abdomen.
6.1.3 During the course of his cross-examination, PW-1 conceded that by examining Muddamal Article No.3, i.e. the empty shell of the cartridge, he cannot say with certainty that the injuries mentioned by him in the PM report could be caused by the bullet fired from the said empty shell. He also conceded that, if, a sharp, pointed, hot iron rod of about 8 mm. Diameter is pierced into the body of the deceased and pulled out, then, the injuries mentioned by him in the PM report could be caused. PW-1 also conceded that he cannot say with certainty, as to what type of Page 17 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 firearm was used.
6.2 Dr. Mohanbhai Dahyabhai Patel-PW-2, Exhibit-20, who had given treatment to the injured witnesses, i.e. Nandaben-PW-5 and Lilaben-PW-9, and had issued injury certificates, Exhibits-22 and 23, in his deposition, specifically stated that the injuries sustained by PWs-5 and 9 could be possible with gun- shots. He also stated that in the injury certificate, the mention of the word 'H/O' means, the history of injury, where, he has mentioned history, as "Assaulted by gunshot".
6.2.1 During the course of his cross-examination, PW-2 stated that he is agreeing to that the facts narrated on Page Nos. 273 to 276 of the Modi's Textbook of Medical Jurisprudence and Toxicology.
6.2.2 PW-2 specifically denied that the injury mentioned by him in the Injury Certificate, Exhibit- 21, could be caused by piercing hot iron rod.
6.3 Dr. Sanatan Krishnakant Vaishnav-PW-3, Exhibit- 25, who was discharging duties as Medical Officer, Trauma Center, Civil Hospital, Ahmedabad, and who had examined the injured witness Lilaben-PW-9, in his deposition stated that PW-9 was brought before him by her sister-in-law, namely Geetaben, with a Transfer Chit, issued by Civil Hospital, Himmatnagar. PW-3 stated that, at that point of time, PW-9 was fully conscious and she had given the history of assault by Page 18 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 rifle by her brother-in-law on 20.03.2011, at about 03:00 Hrs. at Village: Naranpura, Taluka: Meghraj.
6.3.1 During the course of his cross-examination, PW-3 stated that he does not agree that for the purpose of determining, whether an injury is caused by the firearm or not, it is necessary to take wash of the injury and only after finding of presence of particles in such an injury, the same can be determined.
6.3.2 PW-3 also denied that the injury Nos. 1 to 4 could be caused by a sharp edged weapon. He also denied the suggestion that he had falsely issued Injury Certificate, Exhibit-26, so as to help the police.
6.4 Natvarbhai Somabhai Suvera-PW 4, who had lodged the FIR-Exhibit-29 and was examined vide Exhibit-28, in his deposition stated that the alleged offence took place on 20.03.2011, on the festival of Dhuleti, i.e. the next day of Holi festival. He stated that as the Holi pyre was arranged in the agricultural filed of Laljibhai Kamabhai Suvera on 19.03.2011, as per the custom of their village, the people had gathered in the field of Laljibhai for the celebration of Dhuleti at around 02:30 p.m., on 20.03.2011.
6.4.1 At that point of time, the appellant came there with a gun and fired one round in the air and Page 19 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 asked the people, who had gathered there, to get ready. Then, the appellant fired another round towards them. Therefore, the deceased-Shailesh, who happened to be the nephew of the appellant, went towards the appellant to persuade him not to do so. At that time, the appellant fired one round from his gun, which hit the deceased-Shailesh on his stomach. The appellant, then, fired another round at PW-4, which went past, brushing the left side of his trouser and on account of that his trouser and handkerchief got slightly torn / burned.
6.4.2 The appellant, then, fired another round, which hit on the thigh of the mother of the deceased- Shailesh. Another round fired by the appellant passed between the two legs of Hiraben and torn her clothes. Another round fired by the appellant, hit on the buttocks of Lilaben-PW-9. Thereafter, 108 number was dialed and an ambulance was called, wherein, the injured were, firstly, taken to Shamlaji Hospital and then to Himmatnagar hospital. While the injured were being taken to the hospital, injured-Shailesh expired on the way. Nandaben was given treatment at Himmatnagar, whereas, Lilaben-PW-9 was, later on, referred to Civil Hospital, Ahmedabad, for further treatment.
6.4.3 PW-4 stated that he is not sure, as to how many rounds were fired by the appellant, but, according to him, the appellant may have fired 10-12 rounds.
Page 20 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 6.4.4 During the course of cross-examination, a number of suggestions were made to this witness by the learned Advocate for the appellant before the trial Court, however, he denied the same. He, however, conceded that there was a dispute with regard to some land between the appellant and the complainant side before about 20 years.
6.4.5 PW-4, in his cross-examination, specifically denied the suggestion that he did not witness the incident of causing of injury with gun-shot. He also denied the suggestion that he is not in a position to state, as to how, the gun-shot injuries were caused to PW-5Nandaben and PW-9-Lilaben.
6.5 Nandaben Maganbhai Suvera-PW-5 (Exhibit-30), Hiraben Khatubhai Savera-PW-8 (Exhibit-36) and Lilaben Shantilal Suvera-PW-9 (Exhibit-37) are the witnesses, who sustained injuries during the commission of the alleged offence.
6.5.1 All the above witnesses are the residents of the same village as of the present appellant and they have all, specifically, stated that on the date of the alleged offence, i.e. on 20.03.2011, the appellant did indiscriminate firing with the gun possessed by him.
6.5.2 It is also pertinent to note that, at the time of giving history before Dr. Patel-PW-2, it was Page 21 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 clearly stated that the injured received injuries from gun-shot.
6.5.3 From the record it is also revealed that Lilaben-PW-9, in her deposition, specifically stated that appellant came at the place of offence and fired gun-shots, indiscriminately. She also stated that as and when the appellant used to come to her house, the appellant used to quarrel with regard to ancestral land.
6.6 Maganbhai Rupsibhai Suvera-PW-6, Exhibit-31, who happened to be the father of the deceased-Shailesh and the husband of injured witness, Nandaben-PW-5, is also one of the eye-witnesses, who was examined by the prosecution. PW-6 stated that the appellant fired one round at PW-4, however, the same went past PW-4, resulting in the burning of his trouser and the handkerchief.
6.6.1 PW-6, in his deposition, stated that the appellant came at the place of offence and after firing one round in the air, started firing gun-shots on the people gathered there, indiscriminately. PW-6 also stated, in detail, as to how his son, namely Shailesh, sustained gun-shot injury and as to how he was taken to the hospital, where, he was declared dead. PW-6 clearly stated that the reason for the commission of the alleged offence is the dispute between the appellant and the family members, with regard to the land.
Page 22 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 6.7 Jayeshbhai Somabhai Suvera-PW-7, Exhibit-33, is an independent eye-witness. This witness fully supported the case of the prosecution and, in his deposition, he stated that he had witnessed the entire incident with his own eyes. He also stated that he knows the appellant, as he happens to be his relative.
6.7.1 This witness was cross-examined, at length, by the defence, however, nothing fruitful, which would help the case of the appellant, could be brought out from the same.
6.8 Mavjibhai Behcarbhai Suvera-PW-10, Exhibit-38, was one of the panch witnesses of the panchnama of the place of offence. PW-10, in his deposition, stated that police had called him at the boundry of the agricultural field of Punambhai and at that time, the complainant-PW-6 was also present there, who indicated the place of offence. PW-10, further, stated that Police had seized three empty shells of the cartridges and one live cartridge from the said place. Aforesaid panchnama was given number, Exhibit-
39. 6.8.1 PW-10 was also a panch to the panchnama of seizure of the clothes worn by PW-4, at the time of commission of the offence.
6.8.1.1 PW-10 stated that PW-4 had produced a khaki Page 23 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 colour trouser and a handkerchief, which were burnt / torn due to gun-short firing. This panchnama was given number, Exhibit-40.
6.8.2 PW-10 was also a panch to the panchnama of seizure of the clothes of PW-8-Hiraben and he also fully supported the said panchnama, which was given number, Exhibit-41.
6.9 Another important witness examined by the prosecution was Rasikbhai Hirabhai Bhagora-PW-13, Exhibit-47, who was one of the panchas of the panchnama of discovery of the weapon, used in commission of the alleged offence.
6.9.1 PW-13, in his deposition, stated that he was called by Meghraj Police Station officials and when, he reached there, the appellant was present and he expressed his willingness to show the gun used in t he commission of the alleged offence. Therefore, PW- 13 and others went to village Naranpur, as per the way shown by the appellant.
6.9.2. On reaching Naranpur, the appellant produced a gun, which was hidden by him in the grass, which had grown near the Aanganwadi of village Naranpur. PW-13, then, stated that police had extracted one live cartridge from the said gun.
6.9.3 This witness, then, identified the aforesaid gun and the live cartridge seized by the police Page 24 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 before the trial Court as Muddamal Article Nos. 13 and 14. PW-13 also identified his signature on the said panchnama and thereby, this witness fully supported the case of the prosecution.
6.10 Amratbhai Surjibhai Ambaliyara-PW-15, Exhibit-51, who was one of the panch witnesses to the panchnama of clothes of the injured witness Lilaben- PW-9, also fully supported the case of the prosecution.
6.11 Daljibhai Hirabhai Bamaniya-16, Exhibit-52, was one of the witnesses to the panchnama of seizure of three live cartridges, one green colour belt for holding the cartridges and ten empty shells of the cartridges. PW-16 identified the aforesaid articles, as Muddamal Article Nos. 22, 23 and 24, and thereby, he fully supported the said panchnama, which was given number, Exhibit-53.
6.11.1 In his cross-examination, PW-16 stated that it is not true that before he had reached police station, the muddamal articles, which was identified by him, was lying on the table of the police station. PW-16 also denied the suggestion that he had seen the aforesaid muddamal article, for the first time, in the Court room.
6.12 Dilipbhai Harjibhai Suvera-PW-19, Exhibit- 57, is also one of the important witness. PW-19, in his deposition, stated that the alleged offence took Page 25 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 place on the day of festival of 'Dhuleti', i.e. on 20.03.2011. PW-19 stated that on the said day, the appellant had done firing. This witness also stated that, on 17.04.2011, as to how three live cartridges, one green colour belt for carrying cartridges and ten empty shells of the cartridges were seized by the police by drawing a panchnama in the presence of the panch witnesses, namely Suvera Manglabhai Manjibhai and Bamana Dolabhai Hirabhai.
6.12.1 This witness was cross-examined, at length, by the defence, but, nothing fruitful, which would help the case of the appellant could be brought out from the same.
6.13 Shaikh Mohammed Jakir Abdul Azij-PW-20, Exhibit-59, who was discharging duties as the Scientific Officer, in his deposition, stated that on receiving the telephonic instructions from Meghraj Police Station through Control Room, he had gone to village Naranpur on 21.03.2011 and he reached there at about 07:45 a.m.. On reaching there, he found that there were IO and other police officials and two panchas were present. Then, he narrated in details, as to how three empty shells of cartridges, one live cartridge, a black colored cover of the gun, which was torn at the but etc. were seized and as to how, he prepared the scientific report, which was given number, Exhibit-60.
6.13.1 In his cross-examination, PW-20 denied the Page 26 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 suggestion that he had prepared a false report, i.e. Exhibit-60.
6.14 Laxmanbhai Kavaji Ninama-PW-21, Exhibit-62, who was discharging duties as PSO at Meghraj Police Station, in his deposition, stated that as to how, he had recorded the complaint given by PW-6 and as to how, he had forwarded the same to the PSI for investigation.
6.14.1 In his cross-examination, PW-21 specifically denied the suggestion that he had not legally registered the offence against the appellant.
6.15 Dilipsinh Kalusinh Rathod-PW-22, Exhibit-64, was in-charge of the Meghraj Police Station on the date of the alleged offence, i.e. 20.03.2011, and had carried out the initial investigation, as Bhikhabhai Kanabhai Bharwad-PW-23 was on leave upt0 05.04.2011.
6.15.1 PW-22, after registration of the offence, had carried out the necessary panchnama of seizure of muddamal articles, viz. clothes of the deceased, clothes of the injured witnesses so also clothes of the appellant, seizure of empty shells, live cartridges etc. and he also send the muddamal articles for necessary analysis to FSL.
6.15.2 PW-22 produced the report of FSL, Dated:
23.09.2011, Exhibit-68, at the time of his deposition, which revealed that;Page 27 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022
R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 "...
DETAILS OF ANALYSIS AND OPINION:
FIRE ARM:
Specimen-L : A 12 bore, double barrel, breach load, shot- gun, Sport Man Deluxe Model of 'Kalsess Gun Works' Company, which is of Indian make.
Before carrying out the test firing of the said specimen in the Laboratory, firstly, separate barrel wash of both the barrels of the Specimen-L were taken and the same were examined for the purpose of finding out presence of residues of any discharged ammunition and its chemical examination was carried out.
In the barrel wash of both the barrels of Specimen-L, the presence of residues of discharged ammunition, i.e. nitrite and lid could be found, which indicates that before Specimen- L was sent to the Laboratory, both the barrels of Specimen-L were used for firing.
Following 12 bore shot-gun cartridges were successfully test fired from the right side barrel of Specimen-L;
(1) 12 bore K.F. shot-gun cartridges, Numbers-2 (Lab Stock);
(2) 12 bore Shaktiman Express Shotgun Cartridges, Number-1 (from Specimen-M);
(3) 12 bore K.F. shot-gun, Number-1 (Specimen-C);Page 28 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022
R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 Following 12 bore shot-gun cartridges were successfully test fired from the left side barrel of Specimen-L;
(1) 12 bore K.F. shot-gun cartridges, Numbers-2 (Lab Stock);
(2) 12 bore Shaktiman Express Shotgun Cartridges, Number-1 (from Specimen-M);
(3) 12 bore K.F. shot-gun, Number-1 (Specimen-C);
Specimen-L Was Found To Be In Working Condition. If, firing is done from Specimen-L, it could result into injury / death of a human being.
CARTRIDGES:
Specimen-C : One 12 bore shot-gun cartridge of K.F. Companya, India, having shot size No.1. This cartridge was successfully test-fired from the right side barrel of Specimen-L and the same was found to be a live cartridge.
Specimen-M : Two 12 bore shot-gun cartridges of Shaktiman Express Company, India, which had single spherical ball projectile. Both these cartridges were successful test-fired from of Specimen-L (one cartridge from each barrel) and both Specimen-M were found to be live cartridges.
EMPTY SHELLS OF THE CARTRIDGES:
Specimen- B/2 and B/3:Page 29 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022
R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 Two empty shells of 12 bore shot-gun cartridges of Shaktiman Express Company, India;
Specimen-S/1 to S/5 and Specimen-B/1:
Six empty shells of 12 bore shot-gun cartridges of K.F. Company, India;
Specimen-S/6:
One empty shell of 12 bore shot-gun cartridge of Baco Express India company;
The indentation mark made on the percussion caps of Specimen-B/1 to B/3 and Specimen-S/1 to S/6 were examined under stereo microscope and the same were compared with the firing pin mark found on the percussion cap of the cartridges test-fired from both the barrels of Specimen-L under the microscope. On the basis of the aforesaid analysis, following opinion can be given;
1) The characteristic of the firing pin mark found on the percussion cap of Specimen-B/1 to B/3 and Specimen-S/1 to S/6 were found to be similar to the characteristic of the firing pin mark found on the percussion cap of the cartridges fired from the right side barrel of Specimen-L. Thus, Specimen-B/1 and B/ 2 and Specimen-S/1 to S/5 were fired from the right side barred of Specimen-L;Page 30 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022
R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022
2) The characteristic of the firing pin mark found on the percussion cap of Specimen- B/3 were found to be similar to the characteristic of the firing pin mark found on the percussion cap of the cartridges fired from the left side barrel of Specimen-L. Thus, Specimen-B/3 was fired from the left side barred of Specimen-L;
3) Since, the percussion cap of Specimen-S/6 got punctured, the comparison of firing pin mark could not be done. Moreover, since, there was no other characteristic of fire arm found on the percussion cap of Specimen-S/6 and therefore, no opinion could be given, as to whether, the empty shell of the cartridge, i.e. Specimen-S/6, was fired from Specimen-L or not.
WADE:
Specimen-A : One vad of empty shell of a 12 bore shot-gun cartridge.
FRAGMENTS OF SKIN:
Specimen-T/1 and Specimen-T/2:
Specimen-T/1 and Specimen-T/2 were examined under the stereo microscope for the purpose of finding out the presence of residues of ammunition discharge and chemical analysis was also done, thereon. The upper edge of Specimen-T/1 were found to be folded inward and the presence of residues of discharged Page 31 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 ammunition and lid could be found, thereon. Thus, the said hole was caused by firearm discharge and it appeared to be "An entry hole".
The upper edge of Specimen-T/2 were found to be folded outward and the presence of residues of discharged ammunition and lid could be found, thereon. Thus, the said hole was caused by firearm discharge and it appeared to be "An exit hole".
If, single ball / slug cartridge is fired from a 12 bore shot-gun, then, the holes found on Specimen-T/1 and Specimen-T/2 could be caused. On Specimen-T/1 and Specimen-T/2, the presence of blackening, burning or ammunition discharge or the presence of nitrite or nitrite patent could not be found. The holes found on the aforesaid specimens could have been caused from a distance of five feet or more.
CLOTHES OF THE ACCUSED:
Specimen-K and Specimen-J Specimen-K and Specimen-J were examined under the stereo microscope for finding the presence of residues of ammunition discharge and chemical analysis was also done on them. On Specimen-K and Specimen-J neither the presence of residues of ammunition discharge nor firing hole could be found.
CLOTHES OF THE COMPLAINANT, WITNESSES AND THE Page 32 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 DECEASED:
Specimen-D, Specimen-E, Specimen-F, Specimen-G, Specimen-H, Specimen-I, Specimen-N, Specimen-O, Specimen-P, Specimen-Q, Specimen-R;
Aforesaid specimens were examined under the stereo microscope for finding the presence of residues of ammunition discharge and chemical analysis was also done on them. On the basis of their analysis, following opinion can be given;
1) The presence of residues of ammunition discharge or firing hole could not be found on Specimen-O and Specimen-P.
2) The presence of residues of ammunition discharge and lid could be found on Specimen-D and Specimen-
E. The hole found on Specimen-D could be caused by firearm discharge and the same is found to be 'An entry hole'. The holes found on Specimen-D and Specimen-E are found to be corresponding to each other.
3) The presence of residues of ammunition discharge and lid could be found on Specimen-G and Specimen- H. The hole found on Specimen-H could be caused, if, the saree was kept folded. The holes found on Specimen-G and Specimen-H are found to be caused by firearm discharge.
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4) The holes found on Specimen-H and Specimen-I are found to be caused by firearm discharge.The hole Nos. 1 and 2 found on Specimen-I and and the hose Nos. 1 and 2 found of Specimen-H are found to be corresponding to each other.
5) The presence of residues of ammunition discharge and lid could be found on Specimen-N. The edge of hole No.1 was found to be folded towards inside, whereas, the edge of hoe No.2 is found to be folded outside. Hole No. 1 and Hole No.2 are found to be caused by firearm discharge and they appear to be 'An entry hole' and 'An exit hole'. Said hole could be caused, if, a 12 bore single sludge / ball cartridge is fired from a distance of five feet or more. ...."
6.15.3 This witness was cross-examined, in detail, by the defence, but, nothing fruitful could be brought out from the same.
6.16 Bhikhabhai Kanabhai Bharwad-PW-23, Exhibit-70, took over the investigation in this case from PW-22, after he resumed duties on 06.04.2011 and on completion of the same, filed the charge-sheet against the appellant before the concerned Court.
6.16.1 In his cross-examination, this witness denied the suggestion that he filed the charge-sheet, though, there is no evidence against the appellant. The cross-examination of PW-23 also does not help the Page 34 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 case of the defence in any manner.
7. Thus, from a close scrutiny of the oral as well as the documentary evidences led by the prosecution before the trial Court concerned, it becomes clear that this a case of direct evidence, where, the alleged offence took place in the broad day-light and in the presence of a number of persons. This is also a case, which gets support from the evidence of eye- witnesses, including three injured eye-witnesses, who had sustained gun-shot injuries during the course of commission of the alleged offence.
7.1 It is also pertinent to note that the appellant and most of the witnesses are of the same community and they are also residents of the same village, where, most of the persons would have known each other by name as well as the face. Thus, it is neither a case of mistaken identification nor wrong identification. Further, some of the witnesses happened to be the relatives of the appellant and therefore, the question of mistaken identification or wrong identification of the appellant, as the perpetrator of the alleged offence does not arise. On the contrary, all the eye-witnesses appear to be very well familiar with the appellant, as they specifically named the appellant.
7.2 It is also pertinent to note that all the injured witnesses were taken before Dr. Patel-PW-2 and Dr. Vaishnava-PW-3 on the very same day, i.e. soon after the alleged offence was committed, where, Page 35 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 the history of injury by gun-shot was given. Moreover, the FIR of the alleged offence also came to be filed by Natvarbhai Somabhai Suvera-PW 4 on the very same day, i.e. on 20.03.2011, wherein, PW-4 has specifically named the appellant and has also narrated in detail, as to how the alleged offence took place. Thus, the identity of the appellant as the perpetrator of the alleged offence stands proved beyound reasonable doubt.
7.3 Here, it is also worth mentioning that on the date of the alleged offence, i.e. on 20.03.2011, the appellant, himself, had also gone to Meghraj Police Station along with his advocate and had lodged a complaint, being I-C.R. No. 15 of 2011, wherein, the appellant stated that the concerned accused, therein, gathered near his house and pelted stones. The appellant, therefore, fired several gun-shots from his licensed gun in self-defence.
7.3.1 Thus, the FIR filed by the appellant, seals the case of the prosecution. The filing of the FIR by the appellant and the mentioning of firing of gun- shots in self-defence by the appellant establishes the presence of the appellant at the place of offence, at the time of its commission, without any doubt. Therefore, there is no reason to disbelieve the evidence of the eye-witnesses, including the injured eye-witnesses, examined by the prosecution to prove its case before the trial Court concerned.
7.4 Over and above the same, the report of FSL, Page 36 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 Dated: 23.09.2011, also supports the case of the prosecution. As per the report of the FSL, Muddamal Article No.13 or Specimen-L shot-gun, as was referred to by the FSL in its report, was fully functional. The FSL report, further, indicated that firing was done from both the barrels of Specimen-L shot-gun. Further, when the live cartridge as well as the empty shells of the cartridge were examined under the stereo microscope and the compared with the cartridges taken from the stock of the FSL and which were fired from Specimen-L shot-gun, the characteristic of the firing pin mark found on the percussion cap of the cartridges recovered from the appellant's house were found to be similar to the characteristic of the firing pin mark found on the percussion cap of the cartridges taken from the stock of the FSL and fired from Specimen-L. Thus, even the scientific evidence led by the prosecution also does not leave any room for doubt, about the complicity of the appellant in the commission of the alleged offence.
7.5 At this stage, it would also be relevant to refer to the observations made by Hon'ble the Apex Court in 'VINEET KUMAR CHAUHAN' (Supra), wherein, the Apex Court has observed and held as under;
"11. It cannot be laid down as a general proposition that in every case where a firearm is allegedly used by an accused person, the prosecution must lead the evidence of a Ballistic Expert to prove the charge, irrespective of the quality of the direct evidence available on record. It needs little emphasis that where direct evidence is of Page 37 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 such an unimpeachable character, and the nature of injuries, disclosed by post-mortem notes is consistent with the direct evidence, the examination of Ballistic Expert may not be regarded as essential. However, where direct evidence is not available or that there is some doubt as to whether the injuries could or could not have been caused by a particular weapon, examination of an expert would be desirable to cure an apparent inconsistency or for the purpose of corroboration of oral evidence. (See: Gurcharan Singh Vs. State of Punjab )
12. In Mohinder Singhs case (supra) on which strong reliance is placed on behalf of the appellant, this Court has held that, where the prosecution case was that the accused shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun, and the nature of the injuries was also such that the shots must have been fired by more than one person and not by one person only, and the prosecution had no evidence to show that another person also shot, and the oral evidence was of witnesses who were not disinterested, the failure to examine an expert would be a serious infirmity in the prosecution case. It is plain that these observations were made in a case where the prosecution evidence was suffering from serious infirmities. Thus, in determining the effect of these observations, the facts in respect of which these observations came to be made cannot be lost sight of. The said case therefore, cannot be held to lay down an inflexible rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if Ballistic Expert is examined. In what cases, the examination of a Ballistic Expert is essential for the proof of the prosecution case, must depend upon the facts and circumstances of each case.
13. In the instant case, having regard to the ocular evidence adduced by the prosecution, there is no reason to discard the prosecution theory that the injury as a result whereof Smt. Premwati suffered complete paralysis of both the lower limbs etc. was caused by a Page 38 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022 R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 bullet fired from a revolver. The nature of the injury as proved by Dr. P.S. Ahlawat (P.W.5), under whose treatment the deceased remained at Moradabad and Dr. S.P. Singh (P.W.7), who had conducted the post-mortem examination is wholly consistent with the prosecution version. It is clear that the bullet recovered by P.W.7 at the time of post-mortem of the victim had traversed to thoracic spine through the neck from the face near the angle of the jaw, hitting the fifth thoracic vertebra, badly damaging the underlying spinal cord. We are therefore, of the view that on the facts of the present case, the absence of Ballistic Experts evidence is not fatal to the case of the prosecution, notwithstanding the fact that the Forensic Science Laboratory, in its report dated 18.2.1991, had not expressed a definite opinion about the bullet recovered from the place of occurrence."
7.4.1 In the aforesaid decision, thus, the Apex Court has clearly laid down that when there is reliable direct evidence available on the record, non-examination of ballistic expert would not cause any damage to the case of the prosecution.
7.4.2 As discussed herein above, the present is a case of direct evidence, where, all the witnesses have specifically named the present appellant and the evidence of such witnesses also stand fortified by the documentary evidences in the form of injury certificates, panchnama, FSL report etc..
7.4.3 In view of the above, the contention raised by learned Advocate, Mr. Dave, with regard to non- examination of ballistic expert, would not help the case of the appellant in any manner and the same requires to be rejected and is accordingly, rejected.
Page 39 of 40 Downloaded on : Mon Aug 08 20:10:18 IST 2022R/CR.A/767/2013 CAV JUDGMENT DATED: 03/08/2022 7.5 Having, thus, considered the depositions of the witnesses examined by the prosecution so also the documentary evidences produced by it before the trial Court concerned and having re-appreciated the same and also having considered the decisions relied on by the learned Counsels, we are of the view that the prosecution has successfully proved its case against the present appellant beyound reasonable doubt. Hence, the present appeal deserves to be dismissed.
8. Resultantly, the present appeal fails and the same is DISMISSED. The judgment and order, Dated:
18.03.2013, passed by the learned 4th (Ad Hoc) Additional Sessions Judge, Sabarkantha at Modasa, in Sessions Case No. 63 of 2011, convicting the appellant for the offence under Sections 302 and 307 0f the IPC and Section 25(1B)(a) of the Arms Act, is, hereby, CONFIRMED.
8.1 The Registry is DIRECTED to send the R&P back to the concerned trial Court, forthwith.
Sd/-
(VIPUL M. PANCHOLI, J) Sd/-
(SANDEEP N. BHATT,J) UMESH/-
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