Gujarat High Court
Narshi Bhavan Piprotar vs State Of ... on 30 October, 2015
Author: Anant S.Dave
Bench: Anant S. Dave, Z.K.Saiyed
R/CR.A/400/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 400 of 2011
WITH
CRIMINAL MISC. APPLICATION NO.17946 OF 2015
IN
CRIMINAL APPEAL NO. 400 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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NARSHI BHAVAN PIPROTAR....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR HARSHIT S TOLIA, ADVOCATE for the Appellant(s) No. 1
MR PARTH S TOLIA, ADVOCATE for the Appellant(s) No. 1
MR HARDIK SONI APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 30/10/2015
CAV JUDGMENT
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HC-NIC Page 1 of 21 Created On Sat Oct 31 02:34:35 IST 2015 R/CR.A/400/2011 CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE Z.K.SAIYED)
1. This Appeal preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 ("Code, 1973"), arises out of judgment and order dated 24.12.2010 passed by the learned Additional Sessions Judge, Fast Track Court No.3, Khambhaliya, in Sessions Case No.131 of 2008, whereby conviction and sentence imposed upon the appellant - accused No.6 - Narshi Bhavan Piprotar for the offences punishable under Sections 143, 147, 148, 427, 506(2), 302 and 149 of the Indian Penal Code and Sections 25(1)(a) of the Arms Act. The appellant - accused was ordered to undergo simple imprisonment for one month and to pay a fine of Rs.200/-, in default of the same, to undergo further rigorous imprisonment of ten days, for the offences punishable under Sections 143 of the Indian Penal Code, for the offence punishable under Section 147 of the Indian Penal Code, he was ordered to suffer one year simple imprisonment and to pay a fine of Rs.200/-, in default, further to undergo ten days rigorous imprisonment, for the offence punishable under Section 148 of the Indian Penal Code, he was ordered to suffer one year simple imprisonment and to pay a fine of Rs.1000/-, in default, further to undergo two months rigorous imprisonment, for the offence punishable under Section 427 of the Indian Penal Code, he was ordered to suffer one month simple imprisonment and to pay a fine of Rs.200/-, in default, further to undergo ten days rigorous imprisonment, for the offence punishable under Section 506(2) of the Indian Penal Code, he was ordered to suffer one year simple imprisonment and to pay a fine of Rs.1000/-, in default, further to undergo two months rigorous imprisonment, for the offence punishable under Section 302 read with Section 149 of the Page 2 of 21 HC-NIC Page 2 of 21 Created On Sat Oct 31 02:34:35 IST 2015 R/CR.A/400/2011 CAV JUDGMENT Indian Penal Code, he was ordered to suffer life imprisonment and to pay a fine of Rs.5000/-, in default, further to undergo one year rigorous imprisonment. Besides, the appellant was also ordered to suffer five years simple imprisonment along with fine of Rs.3000/-, in default, further two years rigorous imprisonment for the offences punishable under Section 25(1)
(a) of the Arms Act. All the sentences shall run concurrently. Along with present appellant, there are other five co-accused in the aforesaid Sessions Case and they were also awarded the sentence by the learned Sessions Judge, but only the present appellant has preferred the appeal before this Court against the impugned judgment and order.
2. The facts in short of the case of prosecution is such that the complainant lodged the complaint being CR I No.43 of 2008 for the offences punishable under Sections 302, 504, 506(2), 143, 147, 148, 149, 427 of the Indian Penal Code and under Section 25(1)(a) of the Arms Act and also under Section 135(1) of the Bombay Police Act, before Bhanvad Police Station stating that the complainant - Vashrambhai Rudabhai Karena and his two brothers residing separately at village Bhoriya, Ta. Bhanvad, Dist. Jamnagar, engaged in the agricultural activities in the field, where the water was coming through the pipeline. The complainant has 20 Vighas land of share, which is known as "Vachara Valu" and on the western side of the said land, there was land of mashri mengo, which was purchased by the accused No.1 - Bhavan Vajsi Piprotar before seven years from the incident and son of said accused No.1 - Vijaybhai was residing in the said village. It is the say of the complainant that the water was coming through pipeline to the field of the complainant through machine and said pipeline was coming Page 3 of 21 HC-NIC Page 3 of 21 Created On Sat Oct 31 02:34:35 IST 2015 R/CR.A/400/2011 CAV JUDGMENT just adjacent to the field of the accused No.1. Therefore, the accused No.1 quarreled with the complainant for removing said pipeline before one month and oftently, the said accused quarreled with the complainant with regard to the field, which was purchased and for the said dispute, litigation was also filed before the appropriate forum. On 30.9.2002, at about 2:00 p.m., the complainant's brother namely Rameshbhai came back from the field at home and he informed the complainant and his father that the accused persons were trying to remove the pipeline passing through the field and therefore, said Rameshbhai prevented them for doing so, at that time, the accused persons told him to call his father. Therefore, the complainant, his father and his two brothers reached at the field at about 3:00 O'clock on that day and the brother of the complainant namely Jerambhai was reached at the field, where he found that the accused persons were having stick in the hands and the present appellant was having 12 bore rifle and the accused No.1 - Bhavan Vajsi told him to fire from the rifle and therefore, present appellant shot the Jerambhai through the said rifle and therefore, he had fallen down in bleeding condition after receiving the bullet injuries on the vital part of his chest i.e. near his heart. The complainant, his father and brother had seen the same and therefore, they were running to the place, where Jerambhai had fallen down, but at that time, the accused persons abused them and threatened to kill them if they would come near to the place and thereafter, the accused persons ran away from the place of incident. In the manner as stated above, the accused persons including present appellant committed the alleged offence. The said Jayrambhai after sometime died due to bullet injury on his chest. Thereafter, the police came to the spot as intimated by Page 4 of 21 HC-NIC Page 4 of 21 Created On Sat Oct 31 02:34:35 IST 2015 R/CR.A/400/2011 CAV JUDGMENT the father of the complainant and two panchas were called and inquest panchnama of dead body was drawn and the dead body was sent to the Government Hospital, Bhanvad for post mortum. The complaint of the complainant was taken by the police and investigation was carried out. The statements of witnesses were recorded and then panchnama of scene of offence was drawn. The muddamal articles were recovered from the place of offence, blood samples were taken. Then the accused Bhavanbhai, Jagdishbhai, Vijaybhai appeared before the police, so the arrest panchnama was drawn and sticks were also recovered from their possession. From Gondal village, the accused No.5 - Viral Gulabray Joshi was arrested and before the Executive Magistrate, identification parade was made. Map of place was also drawn by Circle Officer. Earlier, present appellant was serving in Army at Rudki of Uttarakhand State, appeared before the police and he was arrested through transfer warrant of Bhanvad Court. Muddamal 12 bore rifle and cartridges were recovered. The recovered muddmal were sent to FSL, Gandhinagar and Junagadh for analysis purpose. After collecting sufficient evidence by the investigating agency, charge-sheet was filed before learned Judicial Magistrate First Class, Bhanvad, in exercise of power under Section 209 of the Code, 1973, committed the case to the learned Sessions Judge, Khambhaliya, where it was numbered as Sessions Case No. 131 of 2008 and later on, it was tried whereby the prosecution examined several evidence oral and documentary and finally statement of the accused also came to be recorded under Section 313 of the Code, 1973, whereby charge was denied by the accused completely.
3. The prosecution has examined several witnesses and Page 5 of 21 HC-NIC Page 5 of 21 Created On Sat Oct 31 02:34:35 IST 2015 R/CR.A/400/2011 CAV JUDGMENT documentary evidences to prove the case against the appellants - accused as stated in the impugned judgment and order.
4. At the end of trial, the conviction and sentence recorded earlier was imposed by the learned Sessions Judge.
5. Being aggrieved and dissatisfied by the conviction and sentence so awarded, learned advocate Mr. Toliya for the appellant submitted that the imprisonment of sentence for rigorous life for offence alleged for which the prosecution has not proved its case beyond reasonable doubt and therefore, such conviction and sentence deserves to be quashed and set aside. He submitted that as per the charge framed against the accused persons including present appellant, the main ingredients of the offence i.e. unlawful assembly, are not proved against the appellant or all the accused. He also submitted that the offence under Sections 427, 506(2) and 149 are not prima facie established through oral as well as documentary evidence by the prosecution. He submitted that in the present case, the prosecution examined P.W. 1 - Atulbhai Labhshakar Mehta at Exhibit 21, public servant of the Collector Officer, through whom the prosecution produced Notification at Exhibit 22, but the said witness admitted in his cross-examination that he has no knowledge about the publication of such notification and therefore, his evidence cannot be said to be reliable one. He read the evidence of P.W.2 - Gangdas Dahyabhai Solanki examined at Exhibit 23, who is panch, but he is interested witness and relative of the deceased and therefore, his version is also not trustworthy. He also submitted that through the said witness, the prosecution Page 6 of 21 HC-NIC Page 6 of 21 Created On Sat Oct 31 02:34:35 IST 2015 R/CR.A/400/2011 CAV JUDGMENT has developed the story as dislclosed by Rudabhai before him about the incident and then the panchnama of scene of offence was drawn. He also submitted that from the version of this witness, it is disclosed that the land before about 7 to 8 years was sold out to the accused No.1 Bhavan Vajsi Piprotar and since then, the dispute for the land was going on due to problem of water pipeline going to the field. He also submitted that from the evidence of P.W.3 Executive Magistrate examined at Exhibit 30, it appears that this witness tried to establish the contents of panchnama for identification parade produced at Exhibit 33, but from the cross-examination of this witness, it appears that prosecution has not proved the case against the appellant and the defence could establish its defence. He drew the attention to the evidence of P.W.4 Laxmanbhai Dahyabhai Solanki, Exhibit 38, who is panch of panchnama - scene of offence and submitted that the recovery of muddamal articles were made from the different place and even bloodstains were found from the different place and therefore, it can be said that the prosecution has not proved its case beyond reasonable doubt and the bloodstains were found from the surrounding places and not found from the exact place of offence, where the incident took place. He also submitted that other panchas who were examined by the prosecution as P.W.5, 6, 7, 8, 9, 10, 11, 12, 13, 14, did not support the case of the prosecution and they turned hostile. He submitted that P.W.15 - Bhanushankar Laxmishakar Bhatt examined at Exhibit 60, who was working as Revenue Circle Inspector and he drew the map of scene of incident, has not fully supported the version of the prosecution and creates sufficient doubt regarding place of incident.
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6. Learned advocate Mr. Toliya read the oral evidence of P.W.16 - Dr. Ukabhai Dhanabhai Chandravadiya, Exhibit 74 and submitted that this witness carried out P.M. of the dead body and this witness found following injuries over the person of dead body.
The following external injuries were seen on this dead body. They are noted down on separate page as per the note made in column no.17 of the postmortem note. They are as under.
Injury No.1 :- There was an entry wound of lacerated type in diameter of 3 to 4 c.m. between 3rd and 4th ribs on left side of chest and there was an inverted edge and it was going towards right side from left side.
Injury No.2 :- There were multiple entry wounds on left side of chest, all around the injury no.1, between 1st and 2nd ribs and upto 10th and 11th ribs at lower portion. It had irregular and inverted edges and was of 0.5 c.m. diameter and it was going right side from left side.
Injury No.3 :- There was an entry wound on front portion of left side arm and an exit wound of bullet coming out from left to right side was seen inside arm. There was an external edge.
Injury No.4 :- Total diameter was from 1st rib to 11th rib and it was of 8 inches.
6. During external examination of the dead body, fracture was seen on 3rd and 4th ribs. The said ribs were on left side.
All the aforesaid injuries were ante-mortem.
7. On making internal examination of the dead Page 8 of 21 HC-NIC Page 8 of 21 Created On Sat Oct 31 02:34:35 IST 2015 R/CR.A/400/2011 CAV JUDGMENT body, the following injuries were found.
On examining head portion, no injury or nothing abnormal was found on organs like skull and brain. On making examination on chest, there were many entry wounds on left portion of chest. Walls were congested and swollen. Lung partition of right and left sides was blood stained and hemorrhagic. There were 3 entry and exit wounds on windpipe. There were many small pellets in right lung, six pellets were taken out from it. Many pellets were seen in left lung. Five pellets were taken out from it.
Many entry and exit wounds were found on left side of heart. Four pellets were taken out from right and left portion of heart. Heart was congested.
7. But this witness disclosed in his evidence about pallet found from the body of the deceased. He also submitted that even the injury received by the deceased, is possible from the certain distance, however, the distance as referred by the prosecution, is different than the factual aspect. As per the submissions of the learned advocate for the appellant, there is a huge contradiction regarding the carbon come out from the weapon and found from the body of the deceased. He also submitted that this witness i.e. Doctor is not expert of ballistic and therefore, his evidence is not required to be considered as expert opinion of ballistic. Even this witness has not admitted in his cross-examination about the presence of carbon particles from body of the deceased. Learned advocate therefore, submitted that from the evidence of this witness, it is not established that the prosecution has proved its case beyond Page 9 of 21 HC-NIC Page 9 of 21 Created On Sat Oct 31 02:34:35 IST 2015 R/CR.A/400/2011 CAV JUDGMENT reasonable doubt as this witness has also not fully supported the version of the prosecution.
8. Learned advocate for the appellant took us to the evidence of the P.W. 17 - Vashrambhai Rudabhai Karena examined at Exhibit 94, complainant and cited as eye-witness and submitted that from the evidence of the this witness, it appears that this witness was not present at the time of incident and this witness stated the cause of incident is for removal of pipeline coming from the field and for that, between the accused persons and complainant and his family members, the dispute was going on and litigations were also filed between them. He also submitted that this witness was not present at the place of incident and his brother Rameshbhai was well aware about the genesis of incident. But the said Rameshbhai was not examined by the prosecution. He also submitted that there is huge contradiction in the evidence of the complainant regarding entire incident and due to previous enmity between the complainant and present appellant, the complainant tried to exaggerate evidence and thereby, implicated the present appellant in the alleged offence. He also submitted that this witness created concocted story before the Investigating Officer, therefore, the evidence of this witness is also not reliable and trustworthy. He read the evidence of P.W. 20 - Pradipkumar Madhubhai Maval, PSO and submitted that from the entry made in station diary at Exhibit 122, 123 and 124 could not support the version of the prosecution and therefore, there is contradiction in registering the FIR because the police came at the place of incident after telephonic call received thereby they recorded the complaint at the place of incident, which is exhibited as Exhibit 95. He also submitted that the investigation carried out by the Page 10 of 21 HC-NIC Page 10 of 21 Created On Sat Oct 31 02:34:35 IST 2015 R/CR.A/400/2011 CAV JUDGMENT investigating officer P.W. 21 Subhashbhai Fogabhai Vadher examined at Exhibit 127 was erroneous one and therefore, his evidence is not trustworthy and reliable.
9. Learned advocate further submitted that from the overall evidence examined by the prosecution, it is not prima facie established that the alleged offence has been committed by the present appellant. Learned trial Judge while passing the judgment and order of conviction and sentence, has not considered the defence version and even statement recorded under Section 313 and relied upon the evidence led by the prosecution, therefore, the impugned judgment and order is required to be quashed and set aside in the interest of justice. He also submitted that this is case of self defence as the complainant and his family members rushed to the appellant at the time of incident. He further submitted that from the medical evidence of Doctor, the case of the prosecution is not established properly as the evidence of the Doctor has not supported properly about entry and exit wound as well as pallet wound. He submitted that only a gunshot was made by the present appellant and in light of single injury, learned trial Judge has not considered the ingredients of Section 300 of the Indian Penal Code and wrongly held conviction under Section 302 of the Indian Penal Code. As per the submission of learned advocate for the appellant, present case is covered within the meaning of offence under Section 304, Part II of the Indian Penal Code. He therefore, submitted that impugned judgment and order is required to be quashed and set aside by allowing present appeal and the present appellant may be acquitted for the charges levelled against him.
10. Per contra, learned APP Mr. Soni for the respondent State Page 11 of 21 HC-NIC Page 11 of 21 Created On Sat Oct 31 02:34:35 IST 2015 R/CR.A/400/2011 CAV JUDGMENT submitted that the learned trial Judge after appreciating the evidence on record, held the accused guilty and therefore, learned trial Judge has rightly passed the judgment and order of conviction and sentence, which does not require any interference from this Court. He further submitted that this is a case of brutal murder committed by the appellant accused with the help of 12 bore rifle and therefore, no lenient view is required to be considered in favour of the appellant - accused. He also submitted that from the evidence of witnesses examined by the prosecution, more particularly, the material witnesses like complainant, Doctor, Investigating Officer etc. the case is established by the prosecution beyond reasonable doubt. He also submitted that as per the case of the prosecution, the complainant - P.W.1 was very well present at the scene of offence and he disclosed the real scene of offence on oath and role attributed on the part of the appellant accused in committing the offence as alleged. He read the injuries of the deceased from the evidence of medical expert and submitted that looking to the size of injuries disclosed by the expert, it is proved that the said injuries are possible by the weapon used by the appellant in commissioning the alleged offence. He also submitted that even the statement recorded under Section 313 of the Code of Criminal Procedure, the defence could not disclose proper defence and therefore, learned trial Judge has rightly appreciated the evidence on record and rightly convicted and sentenced the appellant for the alleged offence. Even the learned trial Judge convicted the other co-accused for the alleged offence. But here, only the present appellant preferred the Appeal against the impugned judgment and order and the co-accused have not yet preferred Appeal. He therefore, prayed to dismiss the appeal by Page 12 of 21 HC-NIC Page 12 of 21 Created On Sat Oct 31 02:34:35 IST 2015 R/CR.A/400/2011 CAV JUDGMENT confirming the impugned judgment and order passed by the learned trial Judge.
11. Learned APP further submitted that looking to the evidence of the complainant recorded at Exhibit 94 as P.W. 17 Vashrambhai Rudabhai Karena, it appears that there was dispute about the land and water going through the pipeline from the field and therefore, the quarrel took place between the complainant and accused persons including present appellant on several occasions before the incident. Therefore, while the appellant along with other accused were trying to remove water pipeline from the field and the complainant and his family members including the deceased Jerambhai were attempting to prevent them, the appellant fired with 12 bore rifle upon the deceased and the deceased died due to shotgun. He also submitted that the version as stated by the complainant is supported by the complaint at Exhibit 95 and the evidence of P.W. 18 Rudabhai Karena at Exhibit 100 as well as other independent witnesses and documentary evidence. It also appears from the evidence of the witnesses examined by the prosecution that the accused persons were not ready to give water through the pipeline passing from the field and therefore, the quarrel took place and for that, the litigations were filed against each other. He, therefore, submitted that looking to the animosity between the complainant and his family members as well as the accused persons, the common object to kill the opposite side took place in the mind of the appellant. In the result of that common object, a gunshot was fired on the vital part like chest of the deceased, by the appellant. He also submitted that some of the panch witnesses did not support the prosecution case, but through the contents of evidence of Investigating Officer, the panchnamas are Page 13 of 21 HC-NIC Page 13 of 21 Created On Sat Oct 31 02:34:35 IST 2015 R/CR.A/400/2011 CAV JUDGMENT proved beyond reasonable doubt. He also submitted that present appellant is military man and shooter and therefore, he specifically targeted the deceased by choosing the vital part of the deceased i.e. chest and therefore, deceased died on the spot due to shotgun. It also appears from the evidence of the witnesses and complaint that on 9.7.2008, at about 2:00 p.m., the brother of the complainant namely Rameshbhai was in the field and at that time, the accused persons were trying to remove the water pipeline and Rameshbhai tried to prevent them from doing so, but the accused persons told Rameshbhai to call his father Rudabhai. Therefore, said Rameshbhai came to his house and told everything to the complainant and his family members including the deceased Jerambhai. Thereafter, the complainant, his two brothers and his father proceeded towards the field and when they reached to the field, Bhavan Vajsi was coming from the opposite side and he told the appellant to fire through the rifle, which was already with the present appellant. Therefore, present appellant fired through the 12 bore rifle to Jerambhai, who was at the 15 ft. distance and therefore, deceased died due to bullet injury on his chest, on the spot. Thereafter, the accused persons threatened to kill them, if they would come near to the accused persons and then the accused ran away from the spot of incident. Learned APP therefore, submitted that in the presence of the complainant, the incident was occurred and so, his evidence cannot be said to be not reliable or trustworthy. He also submitted that the said version as stated in the evidence of the complainant corroborates with the contents of the complaint and other witnesses examined by the prosecution. Therefore, it cannot be said that the appellant has fired due to self defence because the firearm attack was made by the Page 14 of 21 HC-NIC Page 14 of 21 Created On Sat Oct 31 02:34:35 IST 2015 R/CR.A/400/2011 CAV JUDGMENT present appellant on the very first stage, when the complainant and his family members including deceased were coming into the field. It is not revealed from the record that before the firearm made by the appellant, there was any attack or any quarrel took place between both parties. Therefore, common object on the part of appellant is established by the prosecution. He also submitted that from the evidence of the Doctor, the injuries are also proved and same are corroborated with the documentary evidence. He also submitted that the panchnama is also proved through the panchas. Therefore, the learned trial Judge has rightly convicted and sentenced the appellant for the alleged offence. He also submitted that here there is no question of self defence as the accused persons were having with the weapons sticks and rifle before the incident. He lastly prayed to dismiss the appeal by confirming the impugned judgment and order passed by the learned trial Judge.
12. In light of the aforesaid submissions of the learned advocates for the parties, we have given our in-depth consideration to the facts of the present. The starting point of the incident in question as indicated in the evidence on record is that the brother of the complainant namely Rameshbhai was in the field on 9.7.2008 at about 2:00 hrs. at noon and at that time, the accused persons were trying to remove the water pipeline and therefore, said Ramesh tried to prevent them. Therefore, the accused persons told him to call his father Rudabhai. On the same day, at about 3:00 hrs. at noon, the complainant, his two brothers and his father reached at the field upon informing by the said Rameshbhai about act of the accused persons and the deceased i.e. Jerambhai, who is brother of the complainant, was coming along with Page 15 of 21 HC-NIC Page 15 of 21 Created On Sat Oct 31 02:34:35 IST 2015 R/CR.A/400/2011 CAV JUDGMENT complainant, his brother Rameshbhai and his father Rudabhai and the present appellant, who was armed with the rifle, made firearm towards the Jerambhai on vital part i.e. chest of the deceased. Therefore, the said Jerambhai died on the spot as the bullet injury caused on his chest, near heart portion. It also appears that there was quarrel took place between both the parties on several occasions on the issue of land and water pipeline and in result of the same, litigations were also filed by the parties against each other.
13. We have perused the documents produced by the prosecution and the evidence of witnesses examined by the prosecution during the trial. In the present case, firearm was used by the present appellant and from the short distance i.e. 14 to 15 ft., a gunshot was fired by targeting the chest of the deceased and thereby, the deceased received injuries and died. We have minutely perused the panchnama, inquest panchnama, P.M. Note etc. and it appears that the documents, which are produced on record are corroborated with each other and even with the evidence of witnesses. No doubt, some panch witnesses turned hostile, but, the case is proved by the prosecution by other independent witnesses and cogent documentary evidence. From the evidence of witnesses, it is also disclosed that in the commission of the offence, 12 bore rifle was used and the appellant fired within the distance of 15 ft. and thereby committed the offence. From the evidence of P.W. 16 - Dr. Ukabhai Dhanabhai Chandravadiya examined at Exhibit 74, it appears that the appellant fired within the distance of 15 to 16 ft. and the bullet injury was found on the chest of the deceased and he removed 6 shells from the left and right side of heart of the deceased. As per his opinion, the said injury is possible due to injury caused on the heart. Here Page 16 of 21 HC-NIC Page 16 of 21 Created On Sat Oct 31 02:34:35 IST 2015 R/CR.A/400/2011 CAV JUDGMENT the bullet injury is caused to the deceased on left side of chest. From the FSL report Exhibit 167, it is revealed that there was one short size fired topved of 12 bore shotgun cartridge as per sample H/1 and the sample H/2 reveals one plastic air-cution ved and said cartridge is of the rifle, which was used in the commission of offence. The panchnama Exhibit 41 reveals that the blood sample, recovery of shell of cartridge etc. and though the panchas examined at Exhibit 41 and 42 turned hostile, it cannot be said that the prosecution has not proved the panchnama. It is also believable that the deceased Jerambhai died due to fired by rifle and therefore, it is crystal clear that the appellant used 12 bore rifle, while committing the alleged offence. Therefore, the chain of circumstances prove the case of the prosecution against the accused. We have also perused injuries as stated in earlier part of this judgment with the evidence of eye-witness and perused the statement recorded under Section 313. It also appears that the appellant has not properly disclosed his defence in his statement. It also appears that present appellant is military man serving at Rudki of Uttarakhand State. The appellant was arrested from the place of incident and 12 bore rifle was sent to FSL for purpose of analysis by ballistic expert. Said 12 bore rifle was recovered from the possession of the appellant. We have also perused the provisions of Sections 96, 97, 99, 100 of the Indian Penal Code for the purpose of consideration of submission made by the learned advocate Mr. Toliya about the self defence in form of private defence. It is proved by the prosecution that the deceased, complainant and eye-witnesses were present at the place of offence and they were not carrying any weapon at the time of incident. Therefore, we do not find any substance in the submission of learned advocate Page 17 of 21 HC-NIC Page 17 of 21 Created On Sat Oct 31 02:34:35 IST 2015 R/CR.A/400/2011 CAV JUDGMENT Mr. Toliya on the issue of self defence, for which the appellant committed crime and the appellant has not proved the version of self defence by any cogent evidence. In this regard, we have perused the provisions of Section 96 regarding things done in private defence as well as provisions of Section 97 for right of private defence of the body and of property. But, here the accused has not proved version of private or self defence and the burden of establishing the plea of self defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record.
14. We have also minutely perused the submission of learned advocate Mr. Toliya for the appellant regarding single shot fired from the 12 bore rifle and on the basis of same, he submitted that present case is covered within the meaning of Section 304(Part II) of the Indian Penal Code and not covered within meaning of offence under Section 302 of the Indian Penal Code. From the perusal of the evidence of sole eye- witnesses, it is disclosed by them on oath that they were present at the place of offence and at that time, under the instruction of co-accused i.e. father of the present appellant, the appellant fired by choosing vital part of body i.e. chest of the deceased. Looking to this conduct of the present appellant, it also appears that the present appellant was serving in military and he was well aware with the target and uses of firearm and even he was aware about the distance from where if the shotgun is fired, then a person can receive injury. Therefore, it is definitely in his knowledge that what is firing range of the 12 bore rifle, which was used by him in offence. Therefore, he fired on vital part of the body of the deceased Page 18 of 21 HC-NIC Page 18 of 21 Created On Sat Oct 31 02:34:35 IST 2015 R/CR.A/400/2011 CAV JUDGMENT and as result, the deceased died on the spot. Therefore, the submission of the learned advocate for the appellant that there was single firearm, so the present case is covered within meaning of offence under Section 304, Part II, is not acceptable at all, as the appellant made shotgun from the 12 bore rifle with full knowledge and intention to kill the deceased.
15. Other submission of learned advocate Mr. Toliya is that the Medical Officer examined by the prosecution is not a ballistic expert and therefore, his evidence can not be believable. But where fire arm has been used in commission of murder/offence, absence of evidence of the ballistic expert would not always be fatal to prosecution case. Here from the report of ballistic report, it is proved that the said 12 bore rifle was having with the appellant and he fired with said shotgun to the deceased. Here, the conclusion of the ballistic expert is sufficient to prove the guilt of the accused. Even Section 293(4) of Code of Criminal Procedure, envisages that the Court to accept the documents issued by any of six officer enumerated therein as valid evidence without examining the author of the documents. Here the fire arm expert made necessary test and carefully examined the fired cartridge and live cartridge. Therefore, the submission of learned advocate Mr. Toliya that ballistic expert was not examined by the prosecution or the Medical Officer examined by the prosecution, was not ballistic expert, is not acceptable at all in light of the aforesaid observation. In this case, the Medical Officer examined by the prosecution, has given detailed description of the injuries caused on the person of the deceased and dimension of injuries and therefore, non- examination of ballistic expert, cannot fatal the case of the Page 19 of 21 HC-NIC Page 19 of 21 Created On Sat Oct 31 02:34:35 IST 2015 R/CR.A/400/2011 CAV JUDGMENT prosecution.
16. We have carefully perused FSL report with regard to the gauge and calibre of muddamal weapon and carefully examined the internal dimension of barrel as stated therein. In the present case, the appellant made fire from his rifle within the distance of 14 ft. area because he is army man and shooter and therefore, he intentionally targeted the vital part i.e. chest or heart of the deceased.
17. We are of the opinion that from the evidence of prosecution, it becomes clear that the appellant committed murder through rifle and therefore, ingredients of Section 302 and alleged offences of the Indian Penal Code are clearly proved by the prosecution and therefore, no lenient view is required to be considered in favour of the present appellant.
18. In the result, present appeal under Section 374(2) of the Code of Criminal Procedure, 1973, is dismissed. The impugned judgment and order of conviction dated 24.12.2010 passed by the learned Additional Sessions Judge, Fast Track Court No.3, Khambhaliya in Sessions Case No.131 of 2008 is hereby confirmed. Record and Proceedings, if any, to be sent back to the concerned trial court forthwith.
CRIMINAL MISC. APPLICATION No.17946 OF 2015:
In view of the dismissal of Criminal Appeal, present application now does not survive. Hence, the Application stands disposed of.
(ANANT S.DAVE, J.) Page 20 of 21 HC-NIC Page 20 of 21 Created On Sat Oct 31 02:34:35 IST 2015 R/CR.A/400/2011 CAV JUDGMENT (Z.K.SAIYED, J.) YNVYAS Page 21 of 21 HC-NIC Page 21 of 21 Created On Sat Oct 31 02:34:35 IST 2015