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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.