Calcutta High Court (Appellete Side)
Dibakar Mondal vs The State Of West Bengal on 15 May, 2017
Author: Md. Mumtaz Khan
Bench: Debasish Kar Gupta, Md. Mumtaz Khan
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Md. Mumtaz Khan
CRA No. 242 of 1993
Dibakar Mondal
Vs.
The State of West Bengal
For the appellant : Mr. Sudipta Moitra, Ld. Sr. Advocate
Mr. Partha Sarathi Bhattacharya, Ld. Advocate
Ms. Kabita Mukherjee, Ld. Advocate
For the State Mr. Mrinal Kanti Biswas, Ld. Advocate
: Mr. Ranabir Roy Chowdhury, Ld. Advocate
Heard on : 01.03.2017, 02.03.2017, 03.03.2017, 07.03.2017 & 08.03.2017
Judgment on: 15.05.2017.
Md. Mumtaz Khan, J. :
This appeal has been preferred by the appellant assailing the judgment, order of conviction and sentence dated September 17, 1993 passed by the Ld. Sessions Judge, Birbhum in Sessions Trial No. 2 of July, 1993 arising out of Sessions Case No. 65 of 1990. By virtue of the impugned judgment appellant was convicted for the commissioning of the offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as I.P.C.) and was sentenced to suffer rigorous imprisonment for life and a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one year more with a direction that the fine, if realized, be paid to the heirs of the deceased, Panchanan Mondal.
The prosecution case, in brief, is that one Haripada Mondal had some landed properties as well as dwelling house at Baliharpur under Md. Bazar P.S. Dist. Birbhum. He had seven sons named Panchanan Mondal, the victim, Dasarath Mondal, since deceased, Provakar Mondal, Dibakar Mondal, the appellant, Nishakar Mondal, P.W.1, Dilip Mondal and Mihir Mondal. After death of Haripada Mondal there was salish in the village and as per the salish the said dwelling house was allotted to Provakar, Nishakar (P.W.1) and Dilip. Thereafter, Provakar transferred his 1/3 rd share to appellant and since then appellant is residing there while P.W.1 and Dilip entrusted P.W.4 and P.W.5 to look after the remaining portion on their behalf. About four number of doors were reported to be missing from the portion of P.W.1 and Dilip. On coming to know about the same from P.W.4, P.W.1 reported the matter to Dilip as also to his elder brother, the victim, to which victim agreed to come to his house.
On June 4, 1990 at about 8 A.M. victim came to the house of P.W.1 and therefrom they went to Baliharpur. P.W.6, P.W.7, Prodyut Mondal, since deceased, Monaj Mondal also came there. They reached there at around 9/9.15 A.M. They found the appellant sitting in his grocery shop situated in the ground floor of the dwelling house. Panchanan Mondal, the victim, then asked appellant about missing of the door planks of the house to which appellant became annoyed and went to first floor of the building. Thereafter, he threatened the victim with his licensed gun pointing through a south facing window and suddenly opened fire towards victim which hit the victim on his right chest as a result victim received severe bleeding injuries and fell down on the pucca road and died on the spot.
P.W.1, then lodged the complaint (Ext.1) before the Officer-in-Charge, Md. Bazar P.S. On the basis of the said complaint, P.W.15 started Md. Bazar P.S. Case No. 38/90 dated June 4, 1990 against the appellant under Section 302 IPC and took up investigation of this case and thereafter on completion of investigation, on August 18, 1990 he submitted charge sheet against the appellant under Section 302 IPC.
Charge was framed on February 15, 1991 under Section 302 IPC and after the appellant pleaded not guilty to the charge, trial commenced.
Prosecution examined 17 witnesses and also proved the FIR, seizure lists, inquest report, rough sketch map with index, arms expert report, licence of the gun in question etc., and also produced one double barrel gun along with live as also empty cartridges, some photographs and thereafter on completion of trial and after examining the appellant under Section 313 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) passed the impugned judgement.
Mr. Sudipta Moitra, Ld. Advocate appearing for the appellant submitted that the prosecution has not come with clean hand and did not unfold the actual state of affairs as to the cause of death of the victim and as such conviction and sentence passed by the learned court below is not sustainable in law.
According to Mr. Moitra, impugned Judgement, order of conviction and sentence passed by the learned court below are also not sustainable in law as the genesis of the case namely missing of the door of the dwelling house in question for which the reported incident took place was doubtful as there was no evidence on record that doors were at all missing, there was material contradictions in between the ocular evidence and medical evidence as also in between the inquest report and PM report about the injuries of the victim and doubt with regard the time of death, contradictions in between the evidence of eye witnesses with regard to the presence of appellant at the place of occurrence and also doubt with regard to the recovery of the gun in question from the possession of the appellant and its use in the commission of the murder of the victim due to inconclusive report of the arms expert and absence of FSL report matching the mark on the empty cartridge with the trigger of the gun which demolishes the prosecution case.
According to Mr. Moitra learned court below did not take into consideration the above aspect of the matter while passing the impugned judgement.
Mr. Moitra alternatively submitted that even if it was found that the death of the victim was caused by the appellants then also provisions of Section 302 IPC was not attracted as there was no premeditation, altercation nor there was any motive to commit murder and at best provision of Section 304 IPC can be applicable.
Mr. Moitra relied upon the decisions in the matter of Mahavir Singh Vs.State of Madhya Pradesh reported in AIR 2016 SC 5231, in the matter of Mohinder Singh Vs. State reported in 1953 SC 415, in the matter of Jaggar Singh Vs. State of Punjab reported in 1975 SCC (Cri) 571, in the matter of State of Punjab Vs. Rajinder Singh reported in (2009) 15 SCC 612 and in the matter of Sukhwant Singh Vs. State of Punjab reported in 1995 SCC (Cri) 524 in support of his submissions.
Mr. Ranabir Roy Chowdhury, learned advocate appearing for the state submitted that the incident took place in broad day light and the same was witnessed by P.W.1, P.W.6 and P.W.7 and on the very date of the incident appellant was arrested and the gun was seized from his possession and the evidence of eyewitnesses were consistent and corroborated with each other and the same was not shaken by the defence in spite of lengthy cross- examination.
According to Mr. Ranabir Roy Chowdhury, there was a dispute between the parties with regard to the property and test report of the arms expert corroborates the eyewitnesses with regard to the use of the gun in causing the death of the victim. According to Mr. Roy Chowdhury, gun was seized and sent to the arms expert in sealed condition which the appellant had also admitted during his examination under Section 313 Cr.P.C.
According to Mr. Roy Chowdhury, even though the PM report has not been exhibited and there were some contradictions, ocular evidence cannot be thrown away.
According to Mr. Roy Chowdhury prosecution had been able to prove the case against the appellant beyond all reasonable doubt.
Mr. Roy Chowdhury relied upon the decisions in the matter of State of U.P. Vs. Krishgna Gopal and Anr. Reported in 1988(4) SCC 302 in the matter of Suraj Singh Vs. State of U.P. reported in 2008 (16) SCC 686 and in the matter of Dayal Singh and ors. Vs. State of Uttaranchal reported in 2012(8) SCC 263 in support of his submissions.
We have heard the submissions advanced by learned advocate for both sides. We have also given our thoughtful consideration to the evidence of the prosecution witnesses and the materials on record for examining the propriety of the impugned judgment, order of conviction and sentence.
The learned court below took into consideration the evidence of P.W.1, P.W.6 and P.W 7 the eyewitnesses P.W.2, P.W.3, P.W.8 and P.W.9, the post occurrence witnesses together with the evidence of the doctor, P.W.13 who conducted post mortem examination over the dead body of the victim as also report of the ballistic expert to arrive at the conclusion that it was the appellant who fired at the victim from his licensed gun resulting in his death and thereby committed an offence of murder punishable under Section 302 IPC.
The genesis of the case, as evident from the evidence of the P.Ws. on record, was the missing of the doors from the portion of the dwelling house of P.W.1 and his brother at Baliharpur. According to P.W.1, the said house in question after partition was allotted to him and his brothers Provakar and Dilip. Thereafter, Provakar transferred his 1/3rd share to his another brother namely the appellant who then started residing there while the complainant and Dilip allowed P.W.4 and P.W.5 to reside in their portion of the house for looking after the same on their behalf. According to P.W.1, on 18th Jaishta 1397 B.S., he came to know from P.W.4 that four numbers of doors were missing from their portion of the dwelling house and accordingly on 19th Jaishtha he reported the matter to his elder brother, the victim, and thereafter, on the relevant day he along with the victim went to Baliharpur and the appellant was asked about the missing doors by the victim to which he became excited and went upstairs and therefrom fired at the victim by his double barrel gun which hit the victim on his right hand and right chest causing bleeding injuries therefrom resulting in his death. Both P.W.4 and P.W.5 have affirmed the above statement of P.W.1 that they were entrusted by P.W.1 and Dilip to look after their portion of the dwelling house and accordingly they used to reside there and looked after the same. According to P.W.4, one evening two days prior to the death of the victim, he noticed four pairs of doors were missing from the allotted portion of P.W.1 and Dilip and accordingly he reported the matter to P.W.1. Interestingly, he was not challenged by the defence on this score. The above statements of P.W.4 also found corroboration from P.W.5. It was not in dispute that victim was the eldest amongst the seven brothers including the appellant. It was evident from the record that amongst the co-owners only appellant was residing in that dwelling house. So, as per the normal human behaviour appellant was asked by his elder brother about the missing of the doors which led to the incident in question. For the sake of argument, if the defence version is accepted that there was no evidence that doors were missing and the victim had no share in the dwelling house, even then it can never be a justification in taking life of his own elder brother by firing at him by a gun for merely asking him about the missing doors.
Therefore, our interference with the impugned judgment is not required on the above ground.
Regarding discrepancies in between the ocular evidence and medical evidence including the inquest report with regard to the injuries found on deceased, it is well settled that testimony of eye witnesses can not be thrown out on the ground of alleged inconsistency in between it and the medical evidence unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taken place in the manner alleged by eye witnesses. Reference may be made in the matter of Solanki Chimmanbhai Ukabhai vs. State of Gujrat reported in (1983) 2 SCC 174. The relevant portion of the above decision is quoted below:
"13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries: taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."
In the matter of Gangabhavani vs. Rayapati Venkat Reddy and others reported in 2014(6) SCC (Cri)182 it has been held by the Hon'ble Supreme Court that the opinion given by a medical witness need not be the last word on the subject and where the eye witnesses account is found credible and trustworthy, a medical opinion pointing to alternative possibilities can not be accepted as conclusive. The relevant portion of the above decision is quoted below:
" 7.It is a settled legal position that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution case and unless it is reasonably explained may discredit the entire case of the prosecution. However, the opinion given by a medical witness need not be the last word on the subject. Such an opinion is required to be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all an opinion is what is formed in the mind of a person regarding a particular fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts, it is open to the judge to adopt the view which is more objective or probable. Similarly, if the opinion given by one doctor is not consistent or probable, the court has no liability to go by that opinion merely because it is given by the doctor. "It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'".
Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility."
Similarly in the matter of Vijay Pal vs. State (GNCT) of Delhi reported in 2015(4) SCC 749 it has been observed by the Hon'ble Apex Court that where the eye witnesses account is found credible and trustworthy, a medical opinion pointing to the alternative possibilities can not be accepted as conclusive. The relevant portion of the above decision is quoted below:
"13) .............. There is no dispute that the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner as alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses.
Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. It is also true that the post-mortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the post-mortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis--vis the injuries appearing on the body of the deceased person and likely use of the weapon and it would then be the prosecutor's duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses. It is also an accepted principle that sufficient weightage should be given to the evidence of the doctor who has conducted the post- mortem, as compared to the statements found in the textbooks, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it is self- contradictory. It is also a settled principle that the opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the Court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. That apart, it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which are to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to the alternative possibilities cannot be accepted as conclusive."
Post-mortem examination over the dead body of the victim was conducted by P.W.13 on June 4, 1990 at the Suri Sadar Hospital, Birbhum. According to the doctor during post-mortem examination he found gun shot injuries besides fracture injuries on the person of the deceased Panchanan Mondal namely (1) one gun shot wound of entrance on right lateral aspect of the chest measuring 1''x ½'' x 2'' without any evidence of scorching and blackening (2) one gun shot wound of entrance 4½'' below one measuring 1'' x ½'' x 2½'' without any evidence of scorching and blackening,(3) one gun shot wound of entrance 3'' below two measuring 1'' x 1'' x 2'' without any evidence of scorching and blackening, (4) fracture 5'' above the right elbow joint,(5) fracture of 5th and 6th ribs of the right side, (6) right lung ruptured and (7) fracture of right lateral aspect of the frontal bone.
According to the doctor, injury no. 1 to 6 may be caused by Mat. Ext.I, a double barrel gun, by a single firing from a distance of 20 / 25 feets and injury no. 7 can be caused by falling on a pucca road with front downward and in his opinion the injuries mentioned above were sufficient to cause instant death. He also opined that death was due to the effects of the head injury and associated injuries caused by gun shot which were ante mortem and homicidal in nature. During cross-examination he stated that he did not get any bullet, pillet or wad in the injury otherwise it could have been mentioned in the report and that injury No. 4 to 7 cannot be caused by fire-arm but may be caused by hard and blunt substance. He denied the defence suggestion that injury nos.1,2 and 3 can be caused by ballam or chora. According to him, he followed the track of the injury but did not get any bullet or pillet or exit wound. Interestingly, no suggestion was put from the side of the defence to the doctor that deceased did not sustain any gun- shot injuries. Thus, the deceased sustain gun shot injury is established through the evidence of P.W.13. Only because the medical report was silent about detection of any bullet, pillet, wad or any exit injury and there was no evidence of scorching and blackening in the injury nos.1,2 and 3, the evidence of eye witnesses can not thrown away. Moreso, blackening is caused by smoke deposits. Smoke particles are light and they do not travel far. Therefore, blackening is limited to small range. Absence of any evidence of scorching and blackening in the injury nos.1, 2 and 3, itself suggests that firing was not made from a very close range and supports the evidence of the eye witnesses that shot was fired from the first floor. In a 12-bore gun, cartridge, up to several hundred small lead spheres constitute the shot, the actual number depending upon the size of the load and the size of the individual pellet. The lead pellets of a shot-gun cartridge emerge from the muzzle of the gun as a single mass but soon begin to diverge and as the distance increases, wound will be progressively smaller. In the case in hand, three gun-shot wounds on the right lateral aspect of the chest were detected by the autopsy surgeon more or less 3/4 inches apart, rupture of right lung and fracture of 5th and 6th ribs of the right side besides fracture of lateral aspect of frontal bone and fracture five inches above the right elbow. The wounds found on the body of the victim by the doctor, thus sustain the version of eyewitnesses.
From Ext.4/2, it was evident that P.W.15 held inquest over the dead body of the victim in presence of P.W.1,P.W.2 and P.W.3 on June 4,1990 at 12.10 P.M. on the puccca road of village Baliharpur in front of the house of the appellant and found bleeding injuries on the upper portion of the right hand under the shoulder of the deceased and some holes on the cloth of the said arm and signs of blood stains in the cloth near the chest in the right side and also around the dead body and on the pitch road. The name of the appellant was described therein as the assailant who fired at the victim by his own gun. This also found corroboration from P.W.1, the eye witness as also P.W.2 and P.W.3.
In the instant case, P.W.1, P.W.6 and P.W 7 were the eye witnesses to the occurrence. In view of the contention raised by the learned counsel, we have carefully scrutinised the evidence of the above three eye witnesses. According to P.W.1, on the relevant date he along with his elder brother namely the victim went to Baliharpur and thereafter they along with P.W.6 and one Prodyut went to their ancestral house and found the appellant sitting in his grocery shop situated in the ground floor of his dwelling house. P.W.7 and Monoj also reached there. Victim then asked the appellant regarding the whereabout of the missing doors to which appellant became excited and went upstairs and thereafter fired from his double barrel gun at the victim, who was standing on the road on the southern side, through southern window which hit the victim on his right hand and right chest as a result victim fell down with bleeding injury and died instantaneously. He identified the appellant on dock. He was cross-examined by the defence at length but without any success. During cross-examination also he stated that he saw the appellant going upstairs and that he was standing on the road 10 feet from the main entrance and the window wherefrom appellant fired is 16/17 feets away and 20 feets high from the ground and 2 and 1/2 feets from the floor. He also stated that the victim was 10 feet apart from him and he saw the gun when it was fired at the victim by the appellant and that only one gun shot hit the victim.
According to P.W.6 also on the relevant date and time when the victim asked the appellant about the missing door, appellant became annoyed and went to the first floor and while threatening the victim opened fire towards the victim which hit him on his right chest as a result victim fell down over the pucca road and also received bleeding injury on the head due to fall and died on the spot. During cross-examination also he stated that when the appellant aimed at the victim he and others seeing the gun immediately moved towards the wall of the appellant and the fire hit the victim both on his hand and chest causing bleeding therefrom and the victim fell down on the road.
According to P.W.7 on the relevant day of the incident, at about 10.00 A.M. while he was coming from his house towards Baliharpur through pucca road he saw Rantu Moral @ Nishakar (P.W.1), victim, Monoj Mondal, appellant, Prodyut Mondal and P.W.6. He then stopped near the house of appellant. There was quarrel between the appellant and the victim with regard to doors. Appellant then got upstairs and opened the fire which hit Panchanan on the hand and the chest as a result victim fell down. He also identified the appellant on dock. During cross-examination, also he stated that he saw the quarrel and that firing took place few minutes after his arrival and the said fire hit on the hand and chest.
On going through the same, we find the above three eye witnesses have fully corroborated the prosecution case. We do not find any intrinsic inconsistency or contradiction in between the evidence of eye witnesses, so far as the basic prosecution case is concerned. This also found corroboration from P.W.8 and P.W.9, the post occurrence witnesses. P.W.2 and P.W.3, the witnesses to the inquest as also seizure of the weapon of offence, have also categorically stated that when they came to the place of occurrence they found the victim lying in a pool of blood on the pucca road in front of the house of the appellant. The evidence of eye witnesses as also the post occurrence witnesses on oath appear to be convincing, trustworthy and believable and no significant contradiction or infirmity has been brought to our notice. Also there appears to be no reason why so many eye witnesses should falsely implicate the appellant, and there is in fact, nothing on record to suggest that the witnesses had any reason to falsely implicate him.
Regarding the time of occurrence, it may be that the doctor, has stated in cross-examination that he found the stomach and bladder empty, which means the injuries must have occurred immediately after rising of the bed. He further stated that when he found the stomach empty, it must be that he had taken food 4 to 5 hrs. earlier before his death but this does not by itself establish the fact that deceased was killed just after rising from bed. Postmortem examination was conducted by P.W.13 on June 4, 1990 but the time of examination was not available from his evidence nor the postmortem report is brought into evidence. As per Ext.4/2, inquest was held on June 4, 1990 at 12.10 P.M. The chronology of the series of occurrences shows that the crime had taken place at about 10.00 A.M. as claimed by the prosecution and testified to by the witnesses.
Therefore, our interference with the impugned judgment is not required on the above grounds.
With regard to the discrepancies, as pointed by the learned advocate for the appellant, it is the settled proposition that the discrepancies found in the evidences of eyewitnesses cannot affect their credibility unless such discrepancies are so vital. Reference may be made to the decision of Leela Ram vs. State of Haryana, reported in (1999) 9 SCC 525. It is also well settled that there bound to be some discrepancies between the depositions of different witnesses when they speak in details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Reliance is placed on the decision of State of H.P. vs. Lekh Raj, reported in (2000) 1 SCC 247. In the matter of Shyamal Ghosh vs. State of West Bengal, reported in (2012) 7 SCC 646, it has been held by the Hon'ble Apex Court that court should examine the statement of a witness in its entirety and read the said statements along with the statements of other witnesses in order to arrive at a rational conclusion instead of reading statement of a witness in part or in isolation. The above principles of law have been elaborately discussed by us in the Judgement delivered on January 29, 2016 in the matter of Tutul Sk @ Noor Alam & Anr. vs. State of West Bengal.(In re: CRA 824 OF 2006) In the case in hand, the discrepancies in between the FIR and the eye witnesses with regard to the presence of the appellant at the place when confronted by the victim for missing of door plank was minor in nature. P.W.1and P.W.6, the eye witnesses, have categorically disclosed the presence of appellant in his shop situated in the ground floor of the dwelling house when he was confronted by the victim about missing of the door plank of the house and thereafter being enraged he went upstairs and opened fire at the victim causing gunshot injuries on his person resulting in his death. This was also corroborated by P.W.7, another eye witness. They all were cross-examined by the defence at length but their evidence remained unshaken. It is true that FIR is silent about the initial presence of the appellant in his ground floor shop but it is clearly stated therein that when victim asked the appellant about missing doors he became excited and after a while he fired at the victim from his licensed gun through his first floor south facing window causing bleeding injuries on the person of the victim resulting in his death.
It is the settled proposition of law that the main purpose of the FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law and the same need not be an encyclopedia of all the facts and circumstances on which the prosecution relies. Reference may be made to the decision of Jitender Kumar
-Vs.- State of Haryana, reported in (2012) 6 SCC 204.
In view of the above, such minor discrepancy is not going to the root of the case making the prosecution's case doubtful. Therefore, our interference with the impugned judgment is not required on the above ground considering the same was not contradiction of a material dimension.
That appellant was present at the scene and was carrying a double barrel gun has been admitted by him. The seizure of the D.B.B.L. double barrel gun along with 23 live cartridges and one empty cartridge (Mat. Ext.I) was proved by P.W.15, the seizing officer, and corroborated by P.W.2 and P.W.3, the seizure witnesses. According to P.W.15, the I.O., when he went to the place of occurrence after getting the news from P.W.1 he saw the appellant with the gun roaming on the roof of the house and on being demanded by him he surrendered the gun and those cartridges. This also found corroboration from the statements of the accused/appellant recorded under section 313 Cr.P.C. The said seized double barrel 12-bore gun belong to the appellant was also evident from the evidence of P.W.12. The said gun was in working condition found support from the report of P.W.14, the Arms Expert. According to P.W.14 on examination of the gun (Mat. Ext.I) he found the trigger of the left side was in working condition but the trigger of right side was not working properly and he also found sign of firing on the left side barrel. He also examined the empty case of 12-bore cartridge and found mark of firing pin on the head of the cartridge though he admitted that he himself did not make any test fire from that gun and suggested for sending the gun to FSL.
We must observe that the investigation in this case has been most unsatisfactory and the investigating officer was not conscious of his responsibilities. The blood stained earth collected from the spot or the blood collected were not sent for chemical examination nor the seized gun was sent to FSL for the reason best known to him. We had expected better from the investigating officer who was investigating a serious case of murder. It is settled law that for certain defects in investigation, lapses on the part of the investigating officer, the accused can not be acquitted and it is the obligation on the part of the Court to scrutinise the prosecution evidence de hors such lapses to find out whether such lapses affect the object of finding out truth. It was observed by the Hon'ble Supreme Court in Karnel Singh vs. State of M.P., reported in (1995) 5 SCC 518 that in cases of defective investigation the court has to circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect. Otherwise it would amount to depending in the hands of the investigating officer in the event the investigation is designedly defective. The relevant portion of the above decision is quoted below:-
"5. Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. . . ."
In the matter of Amar Singh vs. Balwinder Singh & Ors., reported in (2003) 2 SCC 518 it was held by the Hon'ble Supreme Court that in a case where the prosecution case is fully established by the direct testimony of the eyewitness, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief. The relevant portion of the above decision is quoted below:-
"15. . . . . In our opinion the circumstances relied upon by the High Court in holding that the investigation was tainted are not of any substance on which such an inference could be drawn and in a case like the present one where the prosecution case is fully established by the direct testimony of the eyewitnesses, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief."
In the matter of Promode Dey vs. State of West Bengal, reported in (2012) 4 SCC 559, it was decided by the Hon'ble Supreme Court that non- collection of FSL report might be a defect of investigation which could not result in acquittal of an accused against whom enough evidence was available for conviction. The relevant portion of the above decision is quoted below:-
"13. The learned counsel for the respondent argued that the fact that the FSL report was not collected from the FSL may be a defect in the investigation but a defect in investigation cannot result in acquital of an accused against whom enough evidence is available for conviction. In support of this proposition, he relied on the decision of this Court in Ramappa Halappa Pujar v. State of Karnataka."
This principle has also been repeated and reiterated by the Hon'ble Apex court in a number of decisions time and again.
In the present case, we have found that all the eye witnesses have categorically described that appellant fired at the victim from his double barrel gun causing gun-shot injuries on his chest and the injury nos.1, 2 and 3 noticed by the doctor, P.W.13, being gun-shot injuries also throw a considerable light on this aspect. Thus, we find that prosecution case was fully established by the direct testimony of the eyewitness, which was corroborated by the medical evidence Therefore, our interference with the impugned judgment is not required on the above grounds.
The next issue which needs our consideration is whether the case falls under the provisions of Section 302, IPC or under Section 304, Part I or Part II, IPC, as raised by the learned Advocate for the appellants. Once the elements mentioned in Exceptions to Section 300, IPC are not established, the offence is murder. In the event a case comes within the elements prescribed in Exceptions to Section 300 IPC, it is culpable homicide not amounting to murder. The provisions of Section 300, IPC are set below:-
"300. Murder. - Except in the case hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -
Thirdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
In the case in our hand we find that the appellant fired at the victim by his double barrel gun as a result he sustained he sustained three gun-shot injuries on his chest besides other injuries and fell down on the spot on the pucca road with front downward and sustained fracture of right lateral aspect of the frontal bone with front downward and in the opinion of the doctor those injuries were sufficient in the ordinary course of nature to cause death. So, the intention was clear to cause death. Therefore, there was no impropriety on the part of the learned Court below to pass the order of conviction and sentence under section 302 IPC against the appellant.
In view of the distinguishable facts and circumstances involved in this case, as discussed hereinabove, the decisions of Mahavir Singh (Supra), Mohinder Singh (Supra), Jaggar Singh (Supra), State of Punjab (Supra) and Sukhwant Singh (Supra) do not help the appellant.
Taking into consideration the facts and circumstances on the basis of which the impugned judgment is passed, we are of the opinion that the impugned judgment need not require our interference on the above grounds in view of the settled proposition of law as discussed herein above.
We, therefore, dismiss the appeal and affirm the conviction and sentence imposed on the appellant.
Copy of this judgement along with the lower court records be sent down to the trial court expeditiously.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties, on priority basis, upon compliance with the necessary formalities in this regard.
I agree (Md. Mumtaz Khan, J.) (Debasish Kar Gupta, J.)