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2018 DIGILAW 2320 (RAJ)

Bhagirath Jat v. State of Rajasthan

2018-12-21

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2018
JUDGMENT : SANDEEP MEHTA, J. 1. The accused appellant Bhagirath stands convicted and sentenced as below by judgment dated 23.11.2011 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Hanumangarh in Sessions Case No. 29/2010: Offences Sentences Fine Fine Default sentences Under Section 302 IPC Life Imprisonment Rs.2,000/- Two months’ Simple Imprisonment Under Section 341 IPC One Month Simple Imprisonment - - Under Section 27 of the Arms Act Seven Years’ Rigorous Imprisonment Rs.1,0007- 1 month’s Simple Imprisonment 2. Being aggrieved of his conviction and sentence, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C. 3. Facts in brief are that the complainant Smt. Sharda (Wife of Bhoopram) lodged a written report (Ex.P/13) to Jaiprakash ASI of Police Station Goluwala at the village Hardayalpura at about 07.15 am. alleging inter alia that on the previous evening i.e. on 21.06.2010 at about 8 o ‘clock’, her father-in-law Bhagirath, the appellant herein, who lived in a separate kotha, came home in his usual drunken state. He started abusing the first informant and her husband saying that he would sell the remaining land. The first informant and her husband tried to talk sense into the accused saying that they should be permitted to bring up their children from the fruits of the remaining land on which, the accused threatened them that if he was prevented from selling the land, he would kill the first informant and her husband. She alleged that in the morning, she and her husband Bhoopram, had started for the Gaushala in the village for looking after the cattle. Her father-in-law Bhagirath came out holding his licenced 12 bore gun and exhorted Bhoopram that he had no business to interfere in the sale of the land and that he would not be left alive. Saying so, Bhagirath fired a gunshot towards Bhoopram with his gun. On hearing the gunshot, she raised a hue and cry whereupon, her mother-in-law Guddi Devi, Dilip son of Prithvi Ram and various other persons of the neighbourhood assimilated there. Her husband fell down on the main door of Dhannaram’s house because of the gunshot wound. The gathered crowd threatened the accused on which, he fled away with the gun. They checked and found that Bhoopram had passed away. Her husband fell down on the main door of Dhannaram’s house because of the gunshot wound. The gathered crowd threatened the accused on which, he fled away with the gun. They checked and found that Bhoopram had passed away. She alleged that her father-in-law had killed her husband Bhoopram by firing a gunshot owing to the enmity over the attempted sale of family land. On the basis of this report, an FIR No. 159/2010 was registered at the Police Station Goluwala for the offences under Sections 302, 341 IPC and Section 25 and 27 of the Arms Act and investigation commenced. The deadbody of Bhoopram was subjected to postmortem. The accused appellant was arrested. The licensed 12 bore gun allegedly used for committing the offence was recovered at his instance. The 1.0. carried out site inspection and prepared the site inspection memo and site plan (Ex.P/8 and Ex.P/8A) and the recovery memo (Ex.P/9). Three live cartridges were seized from inside the chowk of Dhannaram’s house. The Panchayatnama Lash was prepared (Ex.P/7) as per which, the deadbody of Shri Bhoopram was found lying in the house of Dhannaram son of Hemaram Jat. Pellet marks were seen on a window in the house. The Gaushala is located opposite to the house of Dhannaram. After investigation, a charge-sheet was filed against the appellant in the court of concerned Magistrate for the offences mentioned above and the offence under Section 27 of the Arms Act. Since the offences were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Hanumangarh from where, the same was transferred for trial to the Additional Sessions Judge (Fast Track) No. 1, Hanumangarh. 4. The trial court framed, read over and explained the charges to the appellant for the offences mentioned above. He pleaded not guilty and claimed trial. The prosecution examined as many as 20 witnesses in support of its case. Upon being questioned under Section 313 Cr.P.C., the accused denied the prosecution allegations and claimed that he had been falsely implicated as Bhoopram and his wife (the complainant) were desirous of usurping his land. However, no evidence was led in defence. Upon conclusion of the trial, the learned trial Judge proceeded to convict and sentence the accused appellant as above by the impugned Judgment dated 23.11.2011. Hence this appeal. 5. However, no evidence was led in defence. Upon conclusion of the trial, the learned trial Judge proceeded to convict and sentence the accused appellant as above by the impugned Judgment dated 23.11.2011. Hence this appeal. 5. Shri S.N. Goswami, learned counsel representing the appellant vehemently and fervently advanced the following contentions so as to assail the conviction of the appellant: (i) that Smt. Sharda did not see the incident happening and filed a concocted report claiming to be an eye-witness so as to falsely implicate the appellant in this case because of animosity arising from the sale of lands by the appellant, (ii) that no other witness of the prosecution, supported the prosecution story at the trial and thus, the vacillating statement of Sharda who is an interested witness, remains uncorroborated, (iii) that the sworn testimony of Smt. Sharda is not corroborated by the site inspection plan. In this regard, he urged that in the written report (Ex.P/13), Smt. Sharda did not allege that the deceased had gone inside the house of Shri Dhannaram by the time, he was shot at, whereas, his deadbody was found well inside in the house of Dhannaram which completely falsifies the case set up in the evidence of Smt. Sharda, (iv) that the time and manner of incident stated by Smt. Sharda are false and incorrect, 6. He laid much stress on the statement of the Medical Officer Dr. Rakesh Kumar (PW-17), who conducted postmortem upon the body of the deceased as well as the postmortem report (Ex.P/28) wherein categoric finding regarding the time of death of Shri Bhoopram is mentioned as 12-16 hours before the postmortem examination which was carried out at 09.40 am on 22.06.2010. Shri Goswami urged that in view of this categoric finding of the doctor that the death of Shri Bhoopram occurred 12-16 hours before 09.40 am., manifestly, the time of occurrence as portrayed by Smt. Sharda in her FIR and in her sworn testimony as 05.30 am. is falsified and the incident must have happened much earlier. He further drew the Court’s attention to the pertinent crossexamination made by the defence from Smt. Sharda (PW-7) wherein, she admitted that when she noticed the deadbody of her husband at the first instance, flies had collected on it and the deadbody had gone cold. is falsified and the incident must have happened much earlier. He further drew the Court’s attention to the pertinent crossexamination made by the defence from Smt. Sharda (PW-7) wherein, she admitted that when she noticed the deadbody of her husband at the first instance, flies had collected on it and the deadbody had gone cold. He submits that if at all, Smt. Sharda was present besides the deceased as she claims and if the incident had taken place at 05.30 am in her viewing, then, there was no chance that deadbody would have gone cold because temperature of a human body goes down gradually after death and the warmth is retained for a few hours. He thus urged that evidence of the sole eye witness Smt. Sharda is not trustworthy and she has given a cooked up version of the incident because she bore an ill-will with the appellant on the issue of sale of land. On the basis of these submissions, learned counsel Shri Goswami craved quashing of the impugned judgment and sought acquittal of the appellant herein. 7. Per contra, learned Public Prosecutor vehemently opposed the submissions advanced by the appellant’s counsel. He urged that Smt. Sharda is a most natural witness and had no reason to falsely implicate the accused. The accused appellant was bearing a deep grudge against Bhoopram who was resisting his attempt to sell the family land. As per the learned Public Prosecutor, this fact gives a strong evidence of motive against the appellant. He urged that Sharda’s testimony which finds, corroboration from the FIR, and the other attending circumstances cannot be doubted and craved dismissal of the appeal. 8. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the material available on record. 9. Sole prosecution witness who claims to haver seen the gunshot being fired at the deceased is Smt. Sharda (PW-7) being the daughter-in-law of the appellant and wife of the deceased. None of the other prosecution witnesses namely Guddi Devi (PW-1), Dilip (PW-2), Bhupendra Kumar (PW-4), Dhannram (PW-6) and Hansraj (PW-8) supported the prosecution case at the trial and were declared hostile. As per the site inspection plan (Ex.P/8) and the statement of the I.O. Chandresh Kumar (PW-16), the deadbody of Shri Bhoopram was found lying inside of the house of Shri Dhannaram and blood was scattered all around the deadbody. As per the site inspection plan (Ex.P/8) and the statement of the I.O. Chandresh Kumar (PW-16), the deadbody of Shri Bhoopram was found lying inside of the house of Shri Dhannaram and blood was scattered all around the deadbody. Three live cartridges were seen strewn around in Dhannaram’s house and were lifted from there. The window panes of a window inside the house of Shri Dhannaram were damaged by pellets and blackening was present thereupon as well. Thus, it has to be assumed that the deceased received the gunshot injury while he was inside the house of Dhannaram. We find weight in the submissions of Shri Goswami that Smt. Sharda appears to be a cooked up witness because her testimony suffers from significant contradictions and embellishments. In her cross- examination, Smt. Sharda candidly admitted that her father-in-law (appellant herein) was having 20 bighas of land from which, he had sold 2.5 bighas about five years before the incident and the remaining land still continued to be entered in his name. The dispute arose when the accused expressed that he wanted to sell more land. It cannot be gainsaid that the appellant, being the owner of the land in question, had an absolute right to sell the same and neither the complainant nor her husband Bhoopram could have stopped the appellant from proceeding as per his desire. Thus, the motive attributed to the appellant by Smt. Sharda does not stand to reasoning. In the written report (Ex.P/13) as well as in her sworn statement, Smt. Sharda claimed that the incident took place at 05.30 am. on 22.06.2010. She alleged that she, alongwith her husband were proceeding towards the Gaushala for collecting cowdung and for giving fodder to the cattle and on the way, Bhagirath came around with the gun and exhorted as to why he was being stopped from selling his land. When her husband heard the lalkara of her father-in-law, he tried to run towards the house of Dhannaram at which point of time, the appellant fired the gun at her husband who fell down. She raised a hue and cry on which, the people from the neighbourhood came to the spot. The accused tried to fire a second gunshot but owing to the alarm being raised, he ran away with his gun. She raised a hue and cry on which, the people from the neighbourhood came to the spot. The accused tried to fire a second gunshot but owing to the alarm being raised, he ran away with his gun. Manifestly thus, as per Smt. Sharda, the incident took place before Bhoopram was able to enter the house of Dhannaram and that the appellant fired a single gunshot at him. In cross-examination, Smt. Sharda admitted that she did not mention in the report (Ex.P/13) that on hearing the cry of the appellant, her husband started running towards the house of Dhannaram. She stated that her husband fell down at the very spot where he received the gunshot injury. When the accused fired at the deceased, there was a distance of about 10 pawandas between them. In common parlance and in local terms, one pawanda is measured one yeard. She was put a specific suggestion in cross-examination that she had modulated her statement so as to match the site inspection plan. Even in her modulated statement, Smt. Sharda did not allege that the accused too entered the house of Dhannaram and that the gunshot was fired at Shri Bhoopram while he was in the house. Thus, this significant contradiction in the statement of Smt. Sharda casts a grave doubt on her testimony for the simple reason that had she seen the gunshot being fired at her husband after he had entered the house of Dhannaram then, there was no reason for her not to mention the fact in the detailed written report. As per the site inspection plan (Ex.P/8) and the site inspection memo (Ex.P/8A), the deadbody of Shri Bhoopram was found lying well inside the house of Shri Dhannaram. Even in the improved statement of Smt. Sharda, there is no such allegation that her husband had crossed the threshold of Dhannaram’s house before the gunshot hit him. Another significant circumstance which establishes beyond all manner of doubt and goes a long way to satisfy the Court that Smt. Sharda did not witness the incident happening is the admission made by her in her cross-examination that when she saw her husband’s body lying at the scene of occurrence, it had gone cold. As per the statement of the medical officer Dr. Rakesh Kumar (PW-17), he noticed 7 entry wounds of varying sizes between 0.5×0.5 sq. cm. to 1.25 sq. As per the statement of the medical officer Dr. Rakesh Kumar (PW-17), he noticed 7 entry wounds of varying sizes between 0.5×0.5 sq. cm. to 1.25 sq. cm on the gluteal region of the deceased with 5 of the injuries having corresponding exit wounds. The doctor also stated that in the month of June, the rigor mortis develops over entire body within 8-12 hours and then it starts receding and on the basis of these findings, he gave an opinion that the duration of death of the deceased Bhoopram was between 12-16 hours. There is strong scientific opinion based on the research conducted by the Forensic and Ballistic experts that if a 12 bore gun (loosely termed to be a shotgun) is fired from a distance about 10 pawandas from the target (roughly 10 yards), the resultant spread of the pellets upon reaching the target would be nearly 10-12 inches. The renowned author Shri B.R. Sharma, in his text book “Forensic Science Criminal Investigation Trials”, observes as below: “Blackening:- Blackening around the wound is caused by the deposition of smoke particles by all types of powders at close ranges. Pellet Patterns:- The area covered by pellets fired from a shotgun is proportional to the distance between the muzzle of the firearm and the target. Greater the range, greater is the area covered. Generally, in a standard shotgun, the whole charge enters the body upto a range of about two meters, forming a rat-hole varying in diameter from about two centimeters to about six centimeters, depending, mainly, upon the distance between the muzzle and the target. There is a rat-hole surrounded by individual holes from two meters to about seven meters.” 10. The authors Shri Gurbax Singh & K.N. Gupta, while considering the distance of the muzzle from the target and the corresponding spread of the pellets observes as below:- “In the absence of a weapon, the muzzle to target distance can be estimated by measuring the spread of the discharged shot. With close- range shots varying in distance up to 4 to 5 feet, the shot charge enters the target as a concentrated mass, producing a hole shomewhat larger than the bore of the barrel. As the distance increases, the pellets progressively separate and spread out. Generally speaking, the spread in the pattern made by a 12 gauge shotgun is increased 1 inch for each yard of distance. As the distance increases, the pellets progressively separate and spread out. Generally speaking, the spread in the pattern made by a 12 gauge shotgun is increased 1 inch for each yard of distance. Thus, a 10-inch pattern would be produced at approximately 10 yards. Of course, this is only a rule of thumb; normally there are a great number of variables that can affect the shot pattern. Other factors to be taken into consideration include the barrel length, the size and quantity of the pellets fired, the quantity of powder charge used to propel the pellets, and the choke of the gun under examination.” 11. We are satisfied that considered in the backdrop of the opinion expressed by the ballistic experts, if the gunshot had been fired from a distance of 10 yards, there would be hardly any possibility of the pellets passing through the muscles and coming out of an exit wound. Thus, manifestly, the gunshot which was fired at the deceased was a close range one. The fact that the fire was made from very close range is also corroborated from the seizure memo of the clothes of the deceased (Ex.P/5) as per which, marks of blackening were noticed on the payjama and the shirt sleeve of the deceased. As per the Fard Surathaal Lash (Ex.P/6), marks of blackening were noticed on the parts of the body where the gunshot hit. Thus, manifestly, the weapon was fired from a distance of about 3-4 ft. and not from 10 pawandas as claimed by Smt. Sharda. Admittedly, as per the highest version of Smt. Sharda, the appellant fired a single gunshot towards the deceased and while he was making an attempt to fire a second time, the neighbours arrived and raised a hue and cry on which, the accused ran away. However, the circumstances noticed by the I.O. at the time of preparation of the site inspection plan (Ex.P/8A) completely contradicts this version of Smt. Sharda. As per the seizure memo (Ex.P/4) whereby, the licenced 12 bore gun of the accused was seized, it was having a single empty cartridge loaded in its chamber. Thus presumably, the prosecution projected a theory that the fired empty cartridge was present in the gun. The brand name was mentioned on the cartridge as GSBRS 12. While preparing the site inspection memo, the 1.0. Thus presumably, the prosecution projected a theory that the fired empty cartridge was present in the gun. The brand name was mentioned on the cartridge as GSBRS 12. While preparing the site inspection memo, the 1.0. recovered three live cartridges from the scene of occurrence, two of which bore the brand 12 Bore Shaktiman Express and the third one as K.F. Special. It is indeed a matter of surprise that the accused would be carrying cartridges of different brands with him and the cartridge which he fired was of another brand. Sharda did not allege that the accused threw away or dropped live cartridges at the scene of occurrence. The medical evidence and the blackening seen on the clothes of the deceased clearly indicates that it was a case of close range firearm injury being caused to the deceased (from a distance of 1-2 feet distance); recovery of three live cartridges from the chowk of Dhannaram’s house and the pellets being found embedded in the window panels clearly establish that the assailant must be standing inside the house of Dhannaram and the muzzle of the firearm would be at a distance of not more than 3 to 4 feet from the deceased when the gunshot was fired. Furthermore, as the injury caused to Bhoopram was by a close range fire, manifestly, the pellets marks on the window pane give rise to a strong suspicion that multiple shots were fired. The time of death as opined by the doctor clearly belies the version of Smt. Sharda that the incident took place on 22.06.2010 at 05.30 am. Thus, the testimony of the sole prosecution eye witness Smt. Sharda (PW-7) is full of loopholes and infirmities which destroy her worth as a credible and reliable witness. No other prosecution witness claims to have seen the appellant firing the fatal gunshot at the deceased Bhoopram. 12. In view of these noticeable and glaring contradictions and embellishments in the statement of Smt. Sharda, we feel it unsafe to rely upon her sole testimony for upholding the guilt of the appellant as recorded by the trial court. The trial court, committed grave error while appreciating the evidence led by the prosecution and placing reliance on the statement of the so-called eye-witness Smt. Sharda for holding the appellant guilty of the charge for the offence of murder. 13. The trial court, committed grave error while appreciating the evidence led by the prosecution and placing reliance on the statement of the so-called eye-witness Smt. Sharda for holding the appellant guilty of the charge for the offence of murder. 13. As a consequence, we are inclined to give benefit of doubt to the appellant and acquit him of the charges. Since we have held that the prosecution could not prove that the appellant used his firearm to fire the gunshot at the deceased, manifestly, his conviction for the offence under Section 3/27 of the Arms Act also cannot be sustained. 14. Thus, the appeal is allowed. The impugned judgment dated 23.11.2011 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Hanumangarh in Sessions Case No. 29/2010 is hereby quashed and set aside. The appellant Bhagirath is acquitted of all the charges. The appellant is in custody. He shall be released from prison forthwith if not wanted in any other case.