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CASE NO.:

Appeal (crl.) 267 of 1999

PETITIONER:

State of Himachal Pradesh

RESPONDENT:

Mast Ram

DATE OF JUDGMENT: 10/09/2004

BENCH:

B.N. AGRAWAL & H.K. SEMA

JUDGMENT:

J U D G M E N T

SEMA,J

The sole respondent-accused was convicted by the

learned Additional Sessions Judge (II), Kangra at Dharmshala for an

offence under Section 302 IPC and sentenced to rigorous

imprisonment for life and to pay a fine of Rs.5000/- and in default to

undergo further rigorous imprisonment for a period of six months.

Aggrieved thereby, the respondent-accused preferred an appeal

before the High Court, which was allowed by the impugned judgment

and the sentence and conviction recorded by the Trial Court was set

aside. Hence, this appeal by the State.

Briefly stated the facts are as follows:-

The accused and the prosecution witnesses are all from

the same village Sug Tarkhana, Tehsil Indora, District Kangra. The

accused and PW-5 Gian Chand were at loggerheads over the dispute

of abadi and civil litigation between them was pending. The

deceased Uttam Chand was employed as a carpenter at Delhi and

had come to village on 5.8.1995 to attend the performance of first

death anniversary of his mother. It is stated that on 14.8.1995 at

about 10.00 A.M. Gian Chand - PW-5 had an altercation and quarrel

with the accused Mast Ram with regard to the dispute over the abadi

and the deceased Uttam Chand said to have intervened and advised

both Gian Chand and Mast Ram not to quarrel and wait for the

decision of the court in civil litigation. Thereupon, the accused Mast

Ram became furious and threatened the deceased Uttam Cand that

he would deal with him first of all as he was siding with Gian Chand

with whom the accused had the civil dispute over the abadi. It is

further stated that at about 10.30 a.m. on the same day, when the

deceased Uttam Chand along with his brother Hans Raj PW-1 and

Vijay Kumar PW-3 was proceeding towards the fields to get fodder for

the cattle and was passing through the passage in front of the house

of the accused Mast Ram, the accused with DBML (Double Barrel

Muzzle Loaded) gun in his hand challenged Uttam Chand stating that

he would be done to death and then fired at Uttam Chand. The

deceased Uttam Chand received injuries on his arm, chest and

shoulder, fell down on the ground, and became unconscious.

Thereafter, the accused ran away towards the field with his gun. In

the meantime, PW-4 Tarsem Lal also arrived and PWs 1, 3, and 4

together shifted the deceased Uttam Chand to his nearby house

where he breathed his last after sometime. The matter was reported

to the Pradhan of the village, who advised to lodge a report with the

police and the First Information Report was, accordingly, lodged.

The accused was arrested on 18.8.1995 by PW-15 and pursuant to a

disclosure statement, the DBML gun (Ex.P-11) was recovered from

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underneath the bushes near his house. Ex.P-11 was sent for

examination to the Forensic Science Laboratory and it was found to

be in working condition and having been fired. The accused pleaded

ignorance in his statement under Section 313 but he did not lead any

defence evidence. The spot inspection, was, however carried out at

the request of the accused in his examination under Section 313. It

appears that the defence of the accused in his examination under

Section 313 was that from the place where the accused is alleged to

have fired at the deceased and the place where the deceased was

standing and hit by the gun shot was not within the firing range. This

has led to the Trial Court for spot inspection. The inspection was

carried out by the Trial Court on 25.2.1996 in the presence of the

accused, his counsel and the Public Prosecutor. The Trial Court

conducted a test gun shot fire from the place where the accused was

alleged to have fired at the deceased and it was observed that the

place where the deceased was standing and hit by the gun shot was

within the firing range.

The Trial Court after considering the evidence and eye

witnesses accounts of PWs 1, 3, 4, and PW-2 - Dr.Sanjay Kumar

Mahajan, who conducted the post-mortem examination and the

report of forensic laboratory has recorded findings that the

prosecution has established his case beyond all reasonable doubts

and convicted the respondent as aforesaid.

The High Court upset the conviction recorded by the Trial

Court, firstly that the DBML gun (Ex.P-11) alleged to have been used

in the commission of offence was not used in a test fire at the time of

local inspection conducted by the Trial Court and instead a test fire

was carried out with the help of SBML(Single Barrel Muzzle Loaded)

gun belonging to PW-1 Hans Raj. The High Court held that this has

materially affected the prosecution story. According to the High

Court, the firing range differs from gun to gun and, therefore, the

firing test not having been conducted from the Exhibit P-11, the

finding of the learned Trial Court Judge that the deceased has been

hit by the gun shot was within the firing range from the verandah of

the house of the deceased could not have been relied upon. This

finding, in our opinion, is not only fallacious but also perverse. While

it is true that generally, the firing range of the gun differs from gun to

gun, the opinion of the High Court that firing range of DBML gun and

SBML gun differs is based on no expert opinion and the same is

based on conjectures and surmises. In the instant case both the

guns are of the same categories except the one used in the

commission of crime is Double Barrel and the one used during the

test fire was the Single Barrel. Therefore, it cannot be said that the

firing range from DBML gun differed from SBML gun or vice-versa.

That apart, the local inspection envisaged under Section

310 Cr.P.C. is for the purpose of properly appreciating the evidence

already recorded during the trial. Memorandum of spot inspection

recorded by the trial Judge has to be appreciated in conjunction with

the evidence already recorded. Any omission and/or commission in

the memorandum recorded by the trial Judge by itself would not

constitute material irregularity, which would vitiate the prosecution

case. In our view, it is difficult to accept the reasoning recorded by

the High Court in this regard.

Secondly, the ground on which the High Court has thrown

out the prosecution story is the report of ballistic expert. The report of

ballistic expert (Ex. P-X) was signed by one junior scientific officer.

According to the High Court, a junior scientific officer (Ballistic) is not

the officer enumerated under sub-section (4) of Section 293 of the

Code of Criminal Procedure and, therefore, in the absence of his

examination such report cannot be read in evidence. This reason of

the High Court, in our view, is also fallacious. Firstly, the Forensic

Science Laboratory Report (Ex. P-X) has been submitted under the

signatures of a junior scientific officer (Ballistic) of the Central

Forensic Science Laboratory, Chandigarh. There is no dispute that

the report was submitted under the hand of a Government scientific

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expert. Section 293(1) of the Code of Criminal Procedure enjoins

that any document purporting to be a report under the hand of a

Government scientific expert under the section, upon any matter or

thing duly submitted to him for examination or analysis and report in

the course of any proceeding under the Code, may be used as

evidence in any inquiry, trial or other proceeding under the Code.

The High Court has completely over-looked the provision of sub-

section (1) of Section 293 and arrived at a fallacious conclusion that a

junior scientific officer is not an officer enumerated under sub-section

4 of Section 293. What sub-section 4 of Section 293 envisages is

that the court to accept the documents issued by any of six officers

enumerated therein as valid evidence without examining the author of

the documents.

Thirdly, the High Court was of the view that during the

course of post-mortem examination conducted by PW-2 Dr.Sanjay

Kumar Mahajan, two pellets were recovered - one each from the

right and left lung of the deceased, which were handed over to the

police. However, the pellets recovered were never sent for

examination to a ballistic expert in order to find out if such pellets

were fired from the gun (Ex. P-11) or not. According to the High

Court, failure of the prosecution to send the pellets for examination by

a ballistic expert will draw an inference against the credibility of the

prosecution story. This finding, in our view, is utterly perverse. It is

not the requirement of law that pellets recovered from the body be

sent to ballistic expert to determine as to whether the pellets were

fired from the exhibited gun or not. On the contrary, the recovery of

pellets from the body clearly establishes the prosecution case that the

deceased died of gun shot injuries.

The fourth reason assigned by the High Court in

discarding the prosecution story is with regard to the non-explanation

of injury No.2 on the body of the deceased. The injury No.2 was

described as under:-

"A circular area about 1.5 cm diameter in left axilla

towards left arm."

PW-2 Dr.Sanjay Kumar Mahajan during the course of cross-

examination stated that the aforesaid injury could not have been

caused had the injured Uttam Chand not raised his arm while

walking. The High Court was of the view that PW-1 and PW-3 who

were accompanying the deceased Uttam Chand at the relevant time

had never stated that deceased Uttam Chand had at any point of time

raised his arm while walking or on being challenged by the accused.

It is the categorical statement of PW-1 Hans Raj and PW-3 Vijay

Kumar that while they were accompanying the deceased, the

accused had challenged the deceased and thereafter fired at him. It

is but quite natural that the deceased when challenged would have

reacted by raising his hands either in defence or in accepting the

challenge and in the process he would have sustained injury No. 2,

as described. The reaction of the deceased in raising his hands, in

such circumstances, would be in tune and in consonance with the

natural human behaviour in ordinary circumstances. There is no set

of rule that one must react in a particular way. The natural reaction of

man is unpredictable. Every one reacts in his own way. Such natural

human behavior is difficult to be proved by credible evidence. It has

to be appreciated in the context of given facts and circumstances of

each case.

Fifthly, the High Court was also of the view that PW-1

Hans Raj and PW-3 Vijay Kumar were accompanying the deceased

and the prosecution story shows that the pellets from the gun shot

had scattered and hit even the tree but the absence of injuries on the

person of PW-1 and PW-3 render their presence at the place of

occurrence doubtful. This finding of the High Court, in our opinion, is

also fallacious and perverse. PW-1 and PW-3 had categorically

stated that the deceased was walking ahead of them. The accused

undisputedly nurtured a grudge against the deceased for alleged

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siding with the PW-5 Gian Chand, with whom the accused had civil

dispute, challenged the deceased, the gun was aimed at and fired at

him. It is, in these circumstances, the absence of pellet injuries on

the persons of PW-1 and PW-3 will be no ground to render the

presence of PW-1 and PW-3 at the place of occurrence doubtful.

The last and the most perverse and fallacious finding of

the High Court is with regard to discarding the evidence of eye-

witnesses account of PW-1 Hans Raj and PW-3 Vijay Kumar. The

High Court recorded the finding as under:-

"PW-1 Hans Raj is the real brother of the deceased,

while PW-3, Vijay Kumar, apart from being a cousin

brother of the deceased is the son of PW-5, Gian

Chand, with whom admittedly the accused had

litigation. It is the prosecution own case that the

accused was nursing a grudge against the

deceased and PW-1, since they were helping and

siding with PW-5, Gian Chand. Both PW-1 and

PW-3 are, therefore, interested witnesses and in

view of the evidence coming on the record, cannot

be safely relied upon."

As already noticed PW-1 Hans Raj and PW-3 Vijay

Kumar are two eyewitnesses who accompanied the deceased on the

fateful day. Both the eyewitnesses had stated categorically that they

accompanied the deceased while going to the fields to fetch fodder

for the cattle. When they were passing through the passage in front

of the house of the accused, the accused challenged the deceased

and in the meantime fired at him, with the result deceased Uttam

Chand fell down on the ground after having sustained gun shot

injuries on his person. The two eyewitnesses were subjected to

lengthy cross-examination but nothing could be elicited to doubt the

creditworthiness of their testimony. No doubt that PW-1 and PW-3

are relatives but this will be no ground to disbelieve their testimony, if

otherwise, inspired confidence. The Law on the point is well settled

that the testimony of relative witness cannot be disbelieved on the

ground of relationship. The only requirement is to examine their

testimony with caution. In the given facts of the case, it is but quite

natural that the relatives would have accompanied the deceased to

collect the fodder for the cattle from the fields at about 10.30 a.m. on

the fateful day. It is also in the prosecution evidence that the incident

at 10.30 a.m. is preceded by an altercation and quarrel between the

accused Mast Ram and PW-5 Gian Chand, on the same morning at

about 10.00 a.m. with regard to the disputed abadi and the deceased

Uttam Chand is said to have intervened in the matter and advised

both PW-5 Gian Chand and the accused Mast Ram not to quarrel

and wait for the decision of the civil litigation. It is also in the

evidence that thereupon the accused Mast Ram threatened the

deceased Uttam Chand that he would deal with him first of all as he

was siding with Gian Chand with whom the accused is having

pending litigation with regard to abadi. The categorical testimony of

eyewitnesses' account has not been considered and discussed at all

by the High Court. Their testimony was thrown out at the threshold

on the ground of animosity and relationship. This is not the

requirement of the Law. That apart, PW-4 Tarsem Lal is an

independent eyewitness. PW-4 also hails from the same village. He

is neither related to the complainant party nor to the accused party.

He has stated that he saw the accused Mast Ram in his verandah

with a gun in his hand and also saw him running away from the spot

after the gunfire. The High Court has not considered and discussed

the testimony of PW-4 at all.

The testimony of PWs 1, 3 and 4 was consistent with the

report of ballistic expert and the evidence of PW-2 Dr.Sanjay Kumar

Mahajan who conducted the post-mortem examination on the body of

the deceased and found the following injuries:-

1. A circular area about 1 cm diameter on Antero-

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lateral surface of left arm about 9 inches from Acromion.

2. A circular area about 1.5 cm diameter in left Axilla

toward left arm.

3. A circular area about 1 cm diameter on Anterior

surface of left shoulder.

4. An area circular about 1.2 cm diameter about 3 cm

below injury No.3.

5. A circular area of 1.3 cm diameter on medial wall of

left axilla which is formed by chest wall. Tract has been

formed on Probing:-3 inches of probe went inside.

6. A circular area of about 1.4 cm diameter in left Infra

clavicular region 7 cm below mid clavicular point.

7. A circular area 1.2 cm diameter about 2.3 cm below

injury No.6.

8. An area 2 cm x 1 cm about 2 cm away from left

nipple medio-supiriorly.

9. An area of 3.2 cm x 2.3 cm on sternum about 5 cm

below sternal notch.

10. An area of 4.1 cm x 2.3 cm above left costal margin

about 5 cm away from Xiphi-Sternum.

11. A circular area of 1 cm diameter on right side of

sternum.

12. An area of 7.2 cm x 2.1 cm on right side of chest in

Midline about 10 cms below mid clavicular point, widest in

centre, tapering on periphery.

13. An area of 6.5 cm x 3.1 cm about 13cm from medial

end of right clavicle.

14. An area of 15 cms diameter just below right nipple.

On probing:- No.13 it came out of injury No.14 though

subcutaneous planer."

PW-2 Dr. Sanjay Kumar Mahajan, opined that all the injuries were

ante-mortem having been sustained by a firearm like gun and such

injuries were sufficient in the ordinary course of nature to cause

death.

In our view, the consistent ocular testimony of PWs 1, 3

and 4 corroborated by the opinion of PW-2 Dr.Sanjay Kumar

Mahajan and ballistic expert report clearly established the

prosecution case beyond all reasonable doubts and the High Court

fell into grave error of law and facts, resulting in grave miscarriage of

justice.

For the foregoing reasons, the order of the High Court is

set aside and the order of the Trial Court is restored. The appeal is

allowed. The bail bond of the respondent-accused Mast Ram is

cancelled. He is directed to be taken back into custody forthwith.

Compliance report within one month from today.