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PETITIONER: MR. GAJJAN SINGH AND ANR.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       29/04/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                               THE 29TH DAY OF APRIL, 1998 Present:               Hon’ble Mr.Justice G.T.Nanavati               Hon’ble Mr.justice S.P.Kurdukar Mr. U.R.  Lalit, Sr.Advocate  and Ms.Indra Sawhney, Advocate with him for the appellants. Mr. R.S.Sodhi, Advocate for the respondent.                       J U D G M E N T The following Judgment of the Court was delivered: Nanavati, J.      Both the  appellants were  convicted for  the  offences punishable under  Section 452  and  Section  302  read  with Section 34  IPC by  the court  of  the  Additional  Sessions Judge, Firozepur  in Sessions Case No. 54/88 (Sessions Trial No.56/90). Their  conviction has  been upheld  by  the  High Court.      Both the  courts below  have accepted  the evidence  of eye-witnesses  -  PWs  5,6  and  9  after  careful  scrutiny thereof. It was however submitted by the learned counsel for the appellants  that as  the eye-witnesses  were  interested witnesses and  there were  material inconsistencies  between the evidence of PWs 5 and 6 on the one and PW 9 on the there hand, their  evidence should not have been accepted. He also submitted that  though the  guns stated to have been used by the two  appellants were  seized by the police and forwarded to the  Ballastic expert  for examination,  no report of the Ballastic Expert was produced to show whether they were used or not.  He also  submitted that the circumstances that both the gun injuries on the person of the deceased were possible by one shot, that there were no pellet marks on the walls or other parts  of the  Haveli and  no blood  was found  on the ground inside the Haveli create a doubt regarding the manner in which the incident had really happened.      One of  the inconsistencies  pointed out by the learned counsel is  with respect  to the nature of weapons which the two co-accused  carried with  them. PWs  5 and 6 have stated that were  carrying guns whereas PW 9 has stated that one of them was  carrying gun  and the  other was  having a dang (a thick  stick).   The  other  inconsistency  pointed  out  is regarding the  part of  the body  on which the shot fired by

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Ratan singh  had caused  injuries to  the deceased. In fact, this is  not an inconsistency at all. PW 5 has not stated on which side  of the chest the injuries were caused. PWs 6 and 9 have stated that the shot had hit the deceased on the left side of his chest. These are the only inconsistencies in the evidence  of   the  eye-witnesses.  One  more  inconsistency pointed out  by the  learned counsel is between the evidence of PW  9 and the Investigating Officer. PW 9 has stated that he had  seen one  pellet in  the mouth  of the deceased. The Investigating Officer  has denied to have seen any pellet in the mouth  of deceased.  Blood had collected in the mouth of the deceased.  It  is  quite  possible  that  PW  9  mistook something in  the moth  of the  deceased as  a pellet or the Investigating Officer  missed to  notice it.  It is  a minor inconsistency and  can have  no effect on the credibility of the eye-witnesses.      We find  tat the  evidence of  PW  5  and  6  is  quite consistent  and   it  clearly  establishes.  that  both  the appellants had  fired one  each at  the deceased  and caused injuries to  him. The medical evidence shows that one injury was on  the forehead  and one  the chest of the deceased. As regards absence  of pellet marks on the walls of the Haveli, we do  not think  that it is a valid ground for disbelieving the eye-witness  account. It  was nobody’s case that pellets from any  of those shots had hit the walls. The incident had happended in  the outer  part of  the Haveli.  No blood  had fallen on  the ground  as explained  by the  witnesses. They have stated  that immediately  after the deceased was hit by the two  shots, they had placed him on a cot. Bot the courts below have  considered these  aspects and given good reasons in support  of the findings recorded by them. We do not find any good  ground to  interfere with the findings recorded by them.      The two  guns which  were seized  by the police did not belong to the appellants. They were of the other accused who were tried  with the  appellants but  acquitted by the trial court. The  witnesses have  not stated that shots were fired from those two guns. Therefore, non production of the report of the ballastic Expert is of no consequence.      It is  also submitted  by the learned counsel that only Rattan Singh  was alleged  to have  causes the  death of the deceased and  there was  no independent  charge  of  causing death against  Gajjan Singh.  He has  been  convicted  under Section 302  read with  Section  34.  The  evidence  clearly establishes that  both the  appellants had  gone together to the Haveli and had fired shots at the deceased. Gajjan Singh was charged  with an  offence punishable  under Section  302 read with  Section 149  IPC. Therefore, the court below have not committed  any illegality  or impropriety  in conviction him under Section 302 IPC read with Section 34.      As we  find no  substance in  any  of  the  contentions raised on behalf of the appellants this appeal is dismissed.      As the  appellants were  released on  bail  during  the pendency of  the appeal,  their bail  is cancelled. They are directed to  surrender to  custody immediately  to serve out the remaining par of the sentence.