M.B. Ghodeswar, J.@mdashThis appeal is directed against the judgment and order dated 31-7-1991 passed by 4th Additional Sessions Judge. Nagpur in Sessions Trial No. 280/90 for conviction and sentence for the offence punishable u/s 302 of Indian Penal Code and u/s 3 read with Section 27 of the Indian Arms Act.
2. The facts of the prosecution case are as under :
The incident in this case took place on 22-12-1989 in the locality of Gorabazar in Kamptee at about 5 to 6 p.m. in which Stela the wife of appellant accused George had received firearm injuries on chest in the house of her mother Josphin (P.W. 8) and she died almost instantaneously on the spot. The house of parents of appellant George and Josphin (P.W. 8) are in Gorabazar locality and distance is of 4-5 houses. The appellant was married to Stela on December 28, 1987. After marriage, Stela resided with appellant in the house of his father for about 1 1/2 years. They had one daughter. The appellant was serving as Ambulance Assistant in Pulgaon Military Depot, It is the prosecution case that appellant performed second marriage with one Bhanumati at Pulgaon. The appellant brought Bhanumati to Kamptee. There was exchange of words between appellant and Stela and quarrel ensued. Appellant insisted that Bhanumati would reside with him in the same house at Kamptee. Stela did not like, and therefore, she came to reside with her mother Josphin''s house (P.W. 8), some six months prior to the incident. During this period, appellant and Stela were living separately. As appellant did not provide anything to Stela, she complained to the Commanding Officer, Military Depot. Pulgaon against the appellant. After enquiry, the Commanding Officer, Military Depot, Pulgaon instructed appellant to hand over household articles to Stela. In November 1989, the appellant sustained fracture while he was serving in Pulgaon. He was admitted for treatment in Sewagram Medical College, Wardha. He got discharge and was shifted to Pulgaon and thereafter was moved to Military Hospital, Kamptee on 17-12-1989 for review of his medical case. This military hospital is at a distance of about 1 1/2 kilometers from Gorabazar locality. While the appellant was admitted in military hospital, on 22-12-1989 he went to his house, then came walking to the house of Josphin (P.W. 8) where the members of the family of P.W. 8 had assembled to see of Vandana (P.W. 11) the sister of deceased as she was going to hostel at Nagpur. The accused was murmuring something. He again went to his house and returned with a gun. He stood on the road just in front of Josphin P.W. 8''s house. He pointed his gun towards Aric (on Eric), (P.W. 9), the brother of deceased who was standing in the open courtyard and started giving abuses. Stela asked him what he wanted to say and he should talk to her directly. Thereupon the accused gave some abuses to Stela, aimed the gun at her chest and fired one shot. The daughter of Stela was in the right arm of Stela. Stela sustained injuries and both fell down on the floor inside, the door of the house. Accused thereafter was seen going to his house. Aric (P.W. 9) immediately rushed to Police Station, Kamptee, lodged his oral complaint which was reduced into writing (Ex. 60) and an offence u/s 307 was registered against the accused. Police reached the spot. Stela did not speak anything or did not make any movement. Her body was covered with bed sheet. Police immediately removed her to Municipal Hospital, Kamptee where she was declared dead P.S.I. Nandkumar Oza (P.W. 15) has prepared the spot panchanama (Ex. 12). P.S.I. Nand Kumar (P.W. 15) has effected the house search of accused in presence of the mother of accused from where one gun of single barrel and four cartridges of 12 bore rifle were seized at Ex. 36., P.S.I. Nand Kumar (P.W. 15) was recording the statement of witnesses when he noticed that there was fire in the house of accused. He immediately gave a telephonic message to Police Station. P.W. 15 has drawn the inquest report Ex. 26 and sent the dead body for post mortem examination. P.I., M. M. Chouhan (P.W. 10) arrested the accused on the next day vide Arrest Panchanama Ex. 13. While in custody, the accused expressed his willingness to discover the gun. The memorandum Ex. 33 was prepared in presence of panchas. In pursuance of the memorandum, the accused produced a gun which was in two pieces by removing the earth and stone from the pit in the small lane in front of house of one Charandas Ramji Chaware. The gun (Article 1) was seized vide Seizure Memo Ex. 32. Similarly, on 25-12-1989 the accused made a statement that he would show the empty cartridges of the bullet. The memorandum was prepared in presence of panchas Ex. 35. The accused produced one empty cartridge from the house of his brother vide Seizure Memo Ex. 34. P.S.I. Oza (P.W. 15) gave a requisition to Medical Officer on dated 27-12-1989 (Ex. 21) requesting to give post mortem report, the clothes of the deceased, pellets of rifle and blood bottle. The property was seized. Clothes of deceased which were handed over by the Medical Officer were seized vide Seizure Memo Ex. 15. Police Constable Mohan, B.No. 1481 has brought one paper packet containing two small round pellets wrapped in cotton, two small glass bottles, one big bundle containing clothes which were seized as per Ex. 15. The seized property was forwarded to Chemical Analyser for analysis vide forwarding letters Ex. 51 to 53 and P.W. 15 received the C.A. Reports Exhibits 29, 74 and 75. P.W. 15 filed charge-sheet.
3. During the trial, the prosecution has examined in all 15 witnesses. Josphin Anthony (P.W. 8), Aric Anthony (P.W. 9) and Vandana Anthony (P.W. 11) are respectively the mother, brother and sister of deceased Stela who are eye-witnesses. Similarly, Mohan Kanojia (P.W. 2) and Badalkumar (P.W. 7) are also the eye-witnesses. John (P.W. 1) and Dharamraj (P.W. 3) are panchas on memorandum of accused and discovery and subsequent recovery on spot. Selvemani (P.W. 4) was examined because he was an indoor patient in Surgical Ward of Military Hospital, Kamptee. Mohasin Razzak (P.W. 5) is a Commanding Officer. Dr. Mohan Dubbewar (P.W. 12) has performed autopsy and Arutla Rao (P.W. 13) is examined as ballistic expert. Others are the police witnesses and the formal witnesses. The defence of the accused is of total denial, false implication and alibi. The accused has not examined any witness in his defence.
4. The learned trial Judge believed the prosecution evidence, oral, documentary and circumstantial and recorded a finding of conviction. The learned counsel for the petitioner has contended that the finding of conviction is erroneous and he has raised the following points;
(1) The prosecution has not conclusively proved that appellant was present on spot.
(2) There is no evidence to show that appellant left the hospital.
(3) Nobody has seen the accused leaving the hospital and outside the hospital.
(4) The appellant was not in a position to walk.
(5) Victim instigated the accused.
(6) There was no intention to kill, and
(7) Prosecution has not proved which gun was used.
The learned counsel for the petitioner has further urged that there is serious infirmity in the eye-witness account and the ballistic expert''s opinion about the range within which the shot was fired. The clothes of the accused, T shirt, pant and cycle are not seized. The accused was indoor patient in Military Hospital. Only 3/4 days prior the plaster was removed, and therefore, he was not in a position to walk. Moreover, it was not possible for the accused to leave the hospital without an outpass. The submission, therefore, is that the defence of the accused is established and the accused is entitled to acquittal by giving benefit of doubt.
5. The learned Additional Public prosecutor has submitted that;
(I) There is motive.
(II) Aric (P.W. 9) has lodged the F.I.R. promptly.
(III) Eye-witnesses account of five witnesses, three relatives and two independent persons.
(IV) Evidence of discovery of the gun and cartridges including empty cartridge at the instance of accused and ballistic expert''s opinion that the empty cartridge was fired from the gun Article ''A''.
It is further submitted that there is no inconsistency in oral and medical evidence. Therefore she has supported the order of the trial Court.
6. To appreciate the rival contentions, we have to see the evidence adduced in this case. John Bosquo Andrewi (P.W. 1) was earlier residing at Gora Bazar Kamptee and he had his house in that locality. In December 1989 he had come to Kamptee from Raipur for celebrating X-mas Festival. When he, was in his house he learnt that murder was committed. Therefore, he ran towards the house of Aric (P.W. 9) (The witness has wrongly mentioned the house of Alec who is the brother of victim stela). He had noticed that Stela had sustained bullet injury and she was lying in the house of her father. He went to Police Station, Kamptee to make enquiry. Accused was in the Police Station. The accused made a statement that he would produce the gun which was recorded (Memorandum Ex. 33). The accused produced the gun (Art. 1) from beneath the soil which was in two pieces. It was seized as per Ex. 32. Thereafter, again accused made a statement that he would produce cartridges (Memorandum Ex. 35). In pursuance to this memorandum the accused produced four live cartridges and two empty cartridges. The cartridges were seized as per Seizure Memo Ex. 34. He has also stated that one more gun was seized by the police in his presence in the house of accused (Gun Article 2) and four live cartridges and one plastic cover of used cartridges as per seizure memo Ex. 36. In his cross-examination, he has admitted that the house of accused was set on fire on the day of incident, after the recovery of gun and cartridges. He has stated that he was working as a social worker and he used to go to police station often. Earlier, he has corrected himself and stated that accused was not present at the time of house search of accused. The evidence of this witness is criticised that he is inimical towards the accused and is on the side of victim. It is true that he has admitted that he did not go to visit the accused in the Military Hospital when he was admitted. He has stated that he loves accused and his wife equally and he had affection for accused and his mother. The evidence of this witness does not suffer from any infirmity and he appears to be a truthful witness.
7. Mohan Kanojia (P.W. 2) is an eye-witness. His house is just in front of the house of Aric (P.W. 9), on the day of incident at the relevant time, he was taking tea in the house when he heard noise of the gun shot from front side of his house. He came in front of the house and saw that Stela had fallen inside the door of Aric''s house. He also noticed the accused was having a gun with him and he was hurriedly going away from the side of Aric''s house towards his own house. Stela had received bullet wound on left side chest, blood was oozing. Stela''s brother Aric (P.W. 9), mother Josphin (P.W. 8) and sisters including Vandana (P.W. 11) were present. The daughter of Stela also fell on the dead body of her mother. He further stated that when he reached the spot, the mother, brother and sister of Stela were the only persons present there. The accused was just in front of his house when he came outside his house and was standing in front of the house of father of deceased. He was not in a position to describe the clothes of the accused which he was wearing. In his presence Aric (P.W. 9) went to lodge report in Police Station. The witness is contradicted in respect of his previous statement recorded u/s 161 of the Code of Criminal Procedure that on reaching on the spot of enquiry, Josphin (P.W. 8) told him that George Victor shot down Stela by gun and he ran away.
8. Dharamraj Rajlingam Sonapallu (P.W. 3) is examined as a panch on memorandum Ex. 33, recovery pursuant to memorandum Ex. 32 gun Article 1, then on Ex. 35 and 34 as deposed by John Bosquo (P.W. 1).
9. Selvemani Sundar Rajan (P.W. 4) who is in Army service and was posted at Kamptee is examined. He deposed that he knows the accused George as he was admitted in Military Hospital, Kamptee in December 1989. This witness was also admitted in Military Hospital and they both were in surgical ward. The cot of accused was adjacent to his cot. The accused was admitted in Kamptee Hospital to remove the plaster of his leg. Plaster was removed and he could walk. After removal of plaster, accused used to walk in the garden of hospital. At about 5 or 6 p.m. on the day of incident, when he was hearing a radio while sitting in the garden of the hospital, he saw the accused entering the hospital limits on cycle and when he came in the garden, this witness asked him as to wherefrom he has come. Accused spoke nothing. He walked to his bed. After about 15 minutes when he went to bed in the ward, the accused has kept the cycle in the verandah and he was in civil dress, and when this witness went to his cot accused was seen fallen in bed in patient''s dress. The witness is cross-examined at length in respect of the doors of the surgical ward, the surrounding compound of the hospital, out pass for the patient to move out of the hospital, out pass register, deposit of hospital dress with ward master etc. He has stated that when accused came alighting the bicycle in hospital he was wearing pant and T shirt. He was indoor patient in the surgical ward where he was operated. From his evidence, it is clear that entry in the register for moving out of the hospital is required to be made and the Medical Officer issues the out passes and the hospital clothes are deposited with the Ward Master and when patient returns to hospital the civil clothes are again deposited with the ward master and hospital clothes are provided to the patient. The evidence of this witness that accused was admitted in surgical ward and his cot was just adjoining the cot of accused is reliable and trustworthy.
10. Mohasin Hafiz Abdul Razzak (P.W. 5) is a Commanding Officer, Military Hospital, Kamptee. He has stated that on 17-12-1989, the accused was admitted in hospital. He was administrative officer of that hospital and the accused was admitted for review of an injury, which he had sustained earlier in his old unit at Pulgaon. He was on sick leave from his old unit. On enquiry by the police, he has submitted his report Ex. 45. He proved the report. The Station Headquarter, Kamptee handed over the accused to the police on the request of the Police Station, Kamptee. The handing and taking over certificate (Ex. 27) is signed by him. This witness is also cross-examined at length about the hospital procedure, administration and for removal of Indoor Patients out of the hospital, the formality required to obtain out pass from the Medical Officer in Charge of the ward and entry in the register. He has stated that the gate of the hospital is guarded by a chowkidar who is not armed but is a civilian and he does not maintain any register at the gate. He has deposed that the Ward Master issues the civilian clothes to the patient and slip is given to him which is signed by the Medical Officer. In the slip time is mentioned during which the patient can remain out of hospital. Captain Shrohi was the Medical Officer in charge of Surgical Ward. In his report Exhibit 45, he has mentioned that accused was admitted in the hospital for review after expiry of sick leave as a case of fracture fibula (left) old. Plaster of his left leg was removed on 19th December 1989 and after that there was mild swelling over his left foot and ankle. The accused was able to walk after removal of plaster. Further it cannot be told definitely that accused was present in his bed between 4 to 6 p.m. on 22-11-1989 because during this time most of the ambulatory (walking) patients go out of ward in the hospital park. The patient was not given any permission to go out from hospital on that day. This park is exclusively for patients of the military hospital. But during visiting hours, the visitors can go in the park. The trial Court put a question to this witness :
Question : Will it be correct to say that in no case, patient can go out of the hospital campus without having obtained an out pass ?
Answer : We have no complete control over all the patients. Patient can leave the hospital campus, even surreptitiously from any side he wants without using the main gate. Even from main gate, it is possible for such a patient to come out. Further if a patient is found while going out without an out pass he is severely punished and therefore such cases are rare.
In cross-examination, he admitted that if the patient wants to surreptitiously go out of the hospital without having obtained out pass, he cannot ask for civilian clothes from ward master. No roll-call is taken of the patients and movements of the patients between 4 p.m. to 6 p.m. cannot be watched and absence of the patient can be noted only at 9 p.m. It is true that prosecution has not examined Captain Shrohi. The out pass or the slip of ward master is not produced. The movements of the patients from 4 p.m. to 6 p.m. are not watched and only absence can be noted at 9 p.m. That means that if patient does not return till 9 p.m. in the hospital, the hospital authorities would not care for his absence in between 4 to 9 p.m. If patient wants to move outside of the hospital, the normal procedure of the hospital has to be followed i.e. out pass, slip of Ward Master and civilian clothes. The house of the accused is at a distance of 1 to 1 1/2 kilometers from the Military Hospital, Kamptee. His plaster of leg was removed on 19th December 1989. There is a report Ex. 45 issued by the witness P.W. 5 that patient was able to walk after removal of the plaster. The evidence of P.W. 4 clearly discloses that the patient/accused was visiting the park which is at a distance of 200 yards from the surgical ward. That means that he was able to walk. The evidence of P.W. 4 and 5, therefore, shows that accused was in a position to walk and it is but natural that as the accused belonged to the same place, he had a natural urge to visit his house and the admission of P.W. 5 that patient can leave hospital campus from any side he wants without using the main gate and even from the main gate, it is possible for such a patient to come out. The evidence of P.W. 4 is, therefore, reliable. There is nothing in the evidence of P.W. 4 that he will speak falsity against the accused.
11. Sharad Nirvan (P.W. 6) is in service of Cantonment Board as civil draftsman. On the request of police, the Board prepared a rough sketch (Ex. 58) and he has brought it in Court (Ex. 48). He has also prepared a rough sketch map (Ex. 49)) showing the distance of the general ward to main gate as 250 metres and showing the limit of military hospital and also he has measured the distances at the spot of incident and the distances of the houses nearby. He has given his forwarding letter Ex. 50.
12. Badalkumar Kaur (P.W. 7) is also an eye-witness. He was not knowing the accused. He has stated that on one Friday in the month of December 1989, he had seen the accused in Gorabazar. At that time he was working in N.C.C. O.T.S., Kamptee. He was going to Bandu''s house and when he was passing from one square, he saw the accused passing along with a gun with him. His friend Bandu was also in N.C.C.O.T.S. Kamptee and he was living at Kamptee. He has noticed the accused with a gun. He paused for a while. He saw that the accused was talking with some ladies from the door of his house. Then he heard gun shot within a few minutes. He also saw accused at the time when he fired the gun and he fired gun aiming at lady. Thereafter the accused was seen passing away from that place and he was looking like a lame man. But he was swift in motion. This witness went to the site. Child was weeping by the side of injured victim Stela. He has stated that he was at a distance 4O to 50 feet when accused fired the gun and he has given the estimate that at the time of fire, the gun was at a distance of 8 to 10 feet from the woman who was shot. In cross-examination, he has stated that there was no complete darkness, but sun was not set. It was about to set, and it has brought in cross-examination that women around the injured were saying that accused has fired the bullet. He also came to know about the name of brother of victim Aric. His statement was recorded by Police within about 15 minutes of the incident. He is frank enough to depose that he did not here any exchange of abuses or heated words. During his cross-examination, he stated that the accused was wearing civilian clothes and accused was seen laming while he was walking. After accused fired gun, he did not stop there, but he went away. He stated that accused ran away in the same direction in which he had come i.e. the accused ran towards his house. He has admitted that he was not knowing the name of the father of accused and he did not tell the name of accused to police as George Victor. It is his impression that P.S.I. himself must have written the name of Victor. He further stated that he did not see the accused loading gun. He has reiterated that he has made a statement to the police that he saw the accused firing the gun.
13. Josphin Anthony (P.W. 8) is the mother of deceased. Stela alias Anita was the school teacher at Kamptee and she served in the convent school as a teacher for 4 years. Stela''s marriage with accused was performed on 28-12-1997. Josphin had three daughters, Stela being the eldest including Vandana (P.W. 11). Mother of accused is the sister of her husband, Stela had a daughter aged about 2 years at the time of incident. Stela had come to reside in her house since about six months prior to the incident because of quarrel between Stela and accused. Stela had complained to the Commanding Officer, Pulgaon against accused. The xerox copy of the letter which is in the hand writing of Stela dated 2-7-1989 is at Annexure B. She has identified the hand writing of her daughter Stela. The military authority had given reply in connection with the complaint of Stela. She had also accompanied Stela for the enquiry in respect of the complaint of Stela. Even she accompanied Stela to Police Station on 2/3 occasions.
14. At the relevant time of the incident, this witness, Stela, Anne, Vandana and Aric were in the house at about 5 or 5.15 p.m. Adjacent to the wall near the door of the house, there is one platform (Chabutra). Anne and this witness were sitting at that Chabutra. Stela was standing near the door resting on the frame of the door. Aric (P.W. 9) was standing in front of the door by the side of Chabutra. The road is just in front of the house and in between road and her house there is open courtyard. Road is about 5 to 6 feet beyond the door of her house. When they were talking there, the accused passed from the front side road and he was murmuring something. Then this witness saw him, he went towards the direction of the chowk. Within 5 to 6 minutes, accused again came back from the side of her house and passed towards his own house. Within few minutes thereafter, the accused again came back with a gun. The accused armed with a gun stood on the road in front of her house. The accused raised the gun and he kept the but of the gun at his chest and aimed it. Her son Aric (P.W. 9) removed the gun from that position. In the meanwhile, Stela uttered what was the matter and that the accused should talk to her. Stela uttered these words while standing near the door itself. When Stela uttered these words, the accused pointed out the gun towards her and he fired the shot. Stela received bullet at her left chest. After firing the accused left back with a gun in his hand. The accused has fired the gun from a distance of about 5 to 6 feet. She has deposed that Stela''s daughter was in her arm when the shot was fired. Receiving the bullet wound, Stela, fell down along with the child on the inner side of the door. The wound was bleeding and her clothes were soaked with blood, She sent Aric (P.W. 9) to lodge the report to the Police Station. Within a few minutes police arrived. Stela was removed to Municipal Hospital, Kamptee. She died. She identified the gun (Article 1) by which the accused shot her. She has stated that at the time of the incident, Mohan (P.W. 2), Mira, Kusum and Zaibunnisa were also present near their houses. In cross-examination she has stated that the relations between Stela and accused became very strained after Stella came to reside at her house. She has stated that the accused has performed second marriage and when he has brought Bhanumati to his house that led quarrel between Stela and accused. She has admitted that the accused did not talk with them, but he was murmuring something. The accused used to talk in Hindi. When the accused raised the gun and firstly aimed it at Aric, at that time he gave threats in Hindi language. There was no exchange of hot words between accused and Stela. Similarly, there was no heated exchange of words between Stela and accused. When Stela sustained injury, the child in her arm was not injured. Again she has stated that Stela died immediately after she received the bullet wound and before the police came on the spot.
15. Vandana (P.W. 11) is the sister of Stela. She has deposed in a similar fashion as that of P.W. 8.
16. Aric (P.W. 9) is the younger brother of Stela who is the complainant. He has stated about the strained relationship between Stela and accused over the second wife Bhanumati. Vandana (P.W. 11) was going to Nagpur, and therefore, the family members at the relevant time had assembled near the front door. They were talking amongst themselves. The accused came there from the side of his house passing by the road and gave abuses to them. He went up to a chowk known as Durga Chowk, came back from the chowk and went to his house. Again accused came back in the house with a gun. He came in front of the house and by standing in the open court yard started giving abuses. The accused asked this witness what he wanted to say. Aric told him that he had nothing to say. In the meanwhile, Stela said to the accused why he was talking with him, he should talk to her. Accused gave some abuses to Stela and when he was talking to Stela, he fired a gun at Stela. Stela received the bullet injury on her left chest. He immediately went to Police Station and lodged report Ex. 60. In report Ex. 60 he has mentioned the cause of the quarrel, the time of incident as 5 p.m. When accused came in front of the house and hurled abuses at her sister Stela saying he would see her, accused returned to his house and again came back with a rifle having two barrels from his house. He hurled abuses for some time and fired a bullet on left side chest of Stela. As a result she sustained injury and fell down on the ground, he also proved the complaint of Stela addressed to the Station Commandant, Kamptee (Ex. 61). He was present at the time of spot panchanama. He has identified the gun Article 1 before the Court.
17. The evidence of P.W. 8, 9 and 11 is vehemently criticised as they are the close relatives and they are utterly speaking falsehood against the accused because of strained relations, that the appellant had fired shot with gun at Stela. The evidence of other two eye-witnesses P.W. 2 and P.W. 7 is also assailed on the ground that they are stating falsehood that they had seen the appellant firing gun at Stela because the appellant was not at all present at the spot as he was an indoor patient in the hospital and he could not move.
18. In this case, the prosecution has examined five eye-witnesses, three relatives and two independent witnesses. Five witnesses are speaking against the appellant that they had seen the appellant firing the gun shot. The time of the incident is before the sunset. There was clear visibility. There is no question of any darkness. Almost all the neighbours had assembled on the spot after hearing the gun shots. There is nothing on record except the strained relationship in respect of P.Ws. 8, 9 and 11 brought on record to show that these witnesses are speaking utter falsehood against the appellant. The emphasis is on the distance from which the shot came to be fired. As per the spot panchanama Ex. 12 and the depositions, the distance from the road to the door of the house of P.W. 8 is 8 feet. Some witnesses have given the distance as 5 to 6 feet and some 6 to 7 feet and according to ballistic expert Arutla Rao (P.W. 13), the shot must have been fired within a short range i.e. within a metre. There is one witness Aric (P.W. 9) who says that the accused was standing in the courtyard of the house. It is common knowledge that in such a situation, the person does not remain static at one place. The evidence of all these eye-witnesses is cogent, consistent and reliable.
19. Madansingh Chouhan (P.W. 10) is the Police Inspector, Kamptee. He has stated that on 15-2-1990, he issued one requisition to Commanding Officer, Sewagram (Ex. 63) to bring back some documents from the Commanding Officer. They all were copies and not the originals.
20. Mohan Dubewar (P.W. 12) is the Medical Officer who has performed Post mortem examination over the dead body of Stela. On external examination he has found the following two injuries on the left breast and upper quadrant .Injury No. 1 dimensions 1" X 1/2". Injury No. 2, 1/2 X 1/2, close to the margin of areola. More or less rounded with margin dragged inside. Colour of wound was cherry red blackening tattooing present over the body and surrounding the margin of wound. There was an external swelling near the variable column over the back surface of the body in lower thoracic region, which was firm of the size 1/2" X 1/2". The injuries were ante mortem. After opening of the body, he noticed the following internal injuries.
There was subcutaneous hematoma seen over the thoracic cage around the wound in 4th and 5th space. Two perforating wounds in 4th and 5th space just near each other. Larynx and trachea contained blood. Description - right lung (1) perforating wound over poster medical part of lung in the middle, (2) one perforating wound over the upper part of left lung 3" below the apex. One pellet of size 1 X 1 cm. soiled with blood found on the side of lower thoracic vertebra T.S. region and one more pellet of same size found in the left scapular area over the thoracic wall left. There was perforating wound to the right ventricle of heart. Thoracic cavity contained about 1.5 to 2 cc. litres of blood. Stomach contained semi digested food material. Perforating injury to heart and lung might have caused the death of the person. He further stated that all the three injuries are sufficient in the ordinary course of nature to cause death. He has given his opinion that the probable cause of death was injuries caused by fire arm. He has collected the clothes which were on the person of the dead body. There were cut marks on the brassiere and Kurta (Articles 9 and 7) and they were corresponding to the external injuries noticed on the dead body. He has proved the post mortem examination report Ex. 71. He had also collected two bottles of blood of deceased Stela. To a question in cross as to what he understands by a shot gun wound, he answered that it was a wound caused by gun which fires more than one pellets at a time.
21. Arutla Rao (P.W. 13) is Assistant Chemical Analyser to Government (Ballistic), Forensic Laboratory, Bombay. On 18-1-1990, five sealed parcels from Police Inspector, Police Station, Kamptee under letter No. 185/90 dated 17-1-1990 were received from Head Constable No. 704. This witness has examined parcels and analysed the contents of the parcels and gave the report Exhibits 74 and 75. Ex. 1 i.e. Article 1 before the Court is a single barrel breach leading 12 bore hammer shot gun in which the griping piece is missing and the barrel lock was broken. Residues of fire gun powder were detected in the barrel washings which indicate that the gun was used for firing prior to its receipt in the laboratory .Two caps of dismantled 12 bore shot gun cartridges from the laboratory stock and the caps of dismantled 12 bore shot gun cartridge, one from Ex. 3-A and one from Ex. 3-B were successfully test fired from the gun Ex. 1. Ex. 2 i.e. Article 2 before the Court is a single barrel muzzle loading gun in which the side action plate was missing. Residues of fire gun powder were detected in the barrel washing showing that the gun Ex. 2 was used for firing prior to its receipt. The empty in Ex. 4 is the fired 12 bore shot gun cartridge case with alkaline residues which is consistent with the barrel washing of the Ex. 1 Article 1. The characteristic features of the firing pin impression on the 12 bore shot gun empty Exhibit 4 tally with that on the caps test fired from the gun Exhibit 1 - Article 1 showing that the empty exhibit 4 has been fired from the shot gun Ex. 1. Exhibit No. 5 contains two fired lead shots. Accordingly he issued report dated 21-4-1990 Ex. 74. From the Police Inspector, Kamptee Police Station, he has received two sealed parcels, two sealed envelopes through P.C. No. 1060 vide letter No. 240/90 dated 24-1-1990. He opened the parcels and found Ex. 1 - One bluish colour torn kurta. Ex. 2 one cream coloured salwar. Ex. 3 one black colour brassiere, Exh. 4 one black colour rubber ring. Exh. 1 to 4 were together and wrapped in paper marked as ''F''. Ex. 5 - One Sholapur Chaddar wrapped in paper marked as ''G''. Ex. 6-A blood in phial marked ''H''. Ex. 6-B blood in a phial marked H having seals on both the phials, Ex. 7 - Two x-ray plates of the size 15" X 12" put in an envelop marked ''I''. After analysis, he found the detection of metallic lid in presence of blackening and powder residues around the periphery of the shot hole on the front left side of the kurta Ex. 1 and the detection of metallic lead on the corresponding hole on the brassiere Ex. 3 is consistent with the passage of lead shots having been fired from within the powder range (i.e. within a meter) of a weapon. He issued the report Ex. 75. In cross-examination, this witness has admitted that inspite of missing griping piece and broken barrel lock, the gun works. Two bullets including Article 3 were hand made and having different weight and different shape and these types of shots can be fired by muzzle loaded gun. He expressed his inability to give opinion regarding the last time of firing. The Police Investigating Officer gave the requisition to Medical Officer dated 27-12-1989 Ex. 21 to Dr. Mohan Dubbewar (P.W. 12) requesting to forward post mortem report, the clothes of deceased Stela, pellets of rifle and blood bottle of deceased. Police Constable Simon B. No. 1060 was given a duty pass to carry the property to Chemical Analyser with a requisition letter to C.A. Ex. 23. The Police Inspector sent the property to Chemical Analyser vide his forwarding letters Ex. 51 to 53 and Chemical Analyzer''s reports are at Ex. 29, 74 and 75. Ex. 29 shows that Kurta Ex. 1, Salwar Ex. 2 and one Solapuri Chaddar Ex. 5 had innumerable blood stains. Ex. 3 brassiere was stained with blood at various places. Ex. 4 black colour rubber ring was also stained with blood. The blood detected on these articles was of ''O'' group and the blood group on Ex. 6A and 6B could not be determined as the results were incomplete.
Ex. 74 shows that one single barrel breech loading 12 bore hammer shot gun (Ex. 1) was in working condition. Residues of fired gun powder were detected in the barrel washings, two caps of dismantled 12 bore shot gun cartridges from the laboratory stock and the caps of dismantled 12 bore shot gun cartridges, one from Ex. 3-A and two from Ex. 3-B were successfully test fired from the gun Ex. 1. Similarly, the empty in Ex. 4 is the fired 12 bore shot gun cartridge case with alkaline residues, which is consistent with the barrel washings of the gun Ex. 1. The characteristic features on the firing pin impression on the 12 bore shotgun empty Ex. 4 tally with that on the caps test fires from the gun Ex. 1, showing that the empty Ex. 4 has been fired from the shotgun Ex. 1. One single barrel muzzle loading gun Ex. 2 in which the side action place was missing, residues of fired gunpowder were detected in the barrel washings of this exhibit.
Ex. No. 75 is the Chemical Analyser''s (Ballistic) report in respect of the clothes, blood and X-ray plates of deceased. Metallic lead in presence of blackening and powder residues around the periphery of the shot hole on the front left side of the Kurta Ex. 1 was detected. Similarly the metallic lead on the corresponding hole on the brassiere Ex. 3 was also detected and was consistent with the passage of lead shots having been fired from within the powder range. In X-ray plates Ex. 7-A and 7-B, circular opacities were observed which are consistent with the firing of shotgun cartridges containing circular shots. From all these reports, it is clear that stela received fire arm injuries and empty No. 4 was fired from the gun Article 1.
22. The learned counsel for the appellant has criticised this evidence on the ground that serious infirmity is created as the eye-witness account is that the accused fired pellet from gun Article 1 and the report of ballistic expert which shows that the ballet was fired within a powder range i.e. 1 metre and that can be fired from gun Article 2, which the eye-witnesses have not stated. The close scrutiny of this evidence reveals that brownish blackish stains were seen over the chest on left side and upper extremity and face of the deceased. The colour of the wound was cherry red blacking tattooing present over the body and surrounding the margin of wound. According to Ex. 75 on the clothes of deceased, metallic lead in presence of blackening and powder residues around the prisoner of the shot hole were detected. Much emphasis is on the powder range which P.W. 3 has given as 1 metre. That means 3 1/2 feet. It was the duty of the Public Prosecutor conducting the trial to get this point clarified from the evidence of P.W. 13. But nothing turns on that. There is a rule of Inches and yards which is applicable to gun Ex. 1. It is clear from the evidence that there was presence of blackening near the wounds and therefore the shot was fired from a distance of close range. The evidence of eye-witnesses if taken into consideration about the distance of firing the shot just standing on the road or within the court yard of the house of P.W. 8 and as observed earlier, the person does not remain static, there is every possibility of the accused standing near or in the courtyard and firing a gun from that place. This evidence is consistent with the evidence of Arutla Rao (P.W. 13), and therefore, in our view, there is no inconsistency with the oral medical and expert opinion in this case.
23. The defence of the accused as it appears from the examination u/s 313 of the Code of Criminal Procedure in answer to question No. 42 is as under :
Police took me on 23 from hospital (Military) and produced before Court. Again police took me to Municipal Hospital for treatment and doctor has advised me not to walk. He has given some prescription. I have not gone out of the hospital before this."
In answer to question no. 24 that as per evidence of P.W. 4 after removal of plaster of leg, he was in a position to walk, he answered that the evidence is false and he was also bed patient then. In short, the defence is they the accused did not leave the military hospital on the relevant time as he was not in a position to walk. From the evidence of P.Ws. 4 and 5 and from the evidence of eye-witnesses, this defence falls to the ground, as it is not probable and the accused has not discharged the burden for proving the defence taken by him, and this evidence is also not capable of creating any doubt. Considering the oral, circumstantial ,documentary evidence, the discovery and the experts opinion, the prosecution has established it''s case beyond reasonable doubt. There is clearcut motive and though the accused has fired one shot, the injuries are such that they are sufficient in the ordinary course of nature to cause death. This proves the intention of the accused to kill Stela. Therefore, the contentions as canvassed by the learned counsel for the appellant have no substance. The learned counsel for the appellant has relied on the following three decisions;
"Accused alleged to have fired at two persons one dying and other injured - Ballistic expert''s opinion that gun shot injuries found on body of deceased and the injured one were caused by two different weapons i.e. one by factory made gun and other country made pistol - Conviction under Ss. 32 and 307 set aside."
This case also is no assistance to the accused.
24. The trial judge on the basis of the evidence has rightly recorded the finding of conviction. He has given sound reasoning for the findings. No interference is required. In the result, the appeal is dismissed.
25. Appeal dismissed.
