Rakesh And 2 Others vs State Of U.P.
2019 Latest Caselaw 4851 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 12.4.2019
 
Delivered on 22.5.2019
 
Court No. 1
 
Case :- CRIMINAL APPEAL No. - 5048 of 2015
 
Appellant :- Rakesh And 2 Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Lal Chandra Sahu,Ajay Kumar Pathak, Noor Mohammad, Santosh Kumar Tiwari
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ramesh Sinha, J
 
Hon'ble Krishna Pratap Singh,J.

(Delivered by Hon'ble Krishna Pratap Singh, J)

1. This Criminal Appeal has been filed against a judgement and order dated 30.09.2015 passed by the Additional Sessions Judge, Court No. 3, Hathras in ST No. 261 of 2008, arising out of case crime No. 833 of 2007, under Sections 302/34, 323/34, 504 IPC, PS Sikandrarau, district Hathras and ST No. 262 of 2008, arising out of case crime No. 851 of 2007, under Section 25 Arms, PS Sikandrarau, district Hathras whereby the learned Judge convicted and sentenced the appellant-Satish to life imprisonment and a fine of Rs. 40,000/- (rupees forty thousand only ) under Section 302 IPC, appellants Rakesh and Bablu to life imprisonment and a fine of Rs. 20,000/- each (rupees twenty thousand only ) under Section 302 read with section 34 IPC with default stipulation. Learned Judge further convicted and sentenced all the appellants to one month's imprisonment and a fine of Rs. 1000/- (rupees one thousand only ) under Section 323/34 IPC with default stipulation. Appellant-Satish was also convicted and sentenced to three years' rigorous imprisonment and a fine of Rs. 3,000/- under section 25 of the Arms Act and in default thereof, appellant-Satish was further directed to undergo two months' simple imprisonment.

2. However, by the same order, learned Judge acquitted the accused-appellants for the offence under Section 504 IPC.

3. The brief facts giving rise to the present appeal are that a written report was lodged by the informant-Brijesh Kumar Yadav at the police station Sikandrarau to the effect that about fifteen days prior to the occurrence there had been some altercation between Ram Gopal, father of the informant and Rakesh over the quarrel of children. On 20.12.2007, when his father was coming to his village from Sikandrarau, at about 2.00 PM, near the brick kiln field of Jaipal Singh, his father was assaulted by lathi and hockey by Rakesh, Prakash, Satish and Bablu. After being assaulted, his father came back to his house and sat on the roof. Thereafter his uncle Viresh also came there and started denouncing Satish and Prakash. At that time Prakash, Satish, Rakesh and Bablu came to the roof of Satish. Satish was carrying licensed gun of Prakash. They started abusing his uncle and thereafter Satish started firing with rifle. One of the shots, hit on the head of informant's uncle, due to which on being seriously injured fell down. The occurrence was witnessed by Smt. Ruma Devi, Smt. Saroj and Maanpal. The first informant took his father and uncle to the Government Hospital, Aligarh, where his uncle-Viresh was declared dead. This incident took place at 3.00 PM.

4. On the basis of the aforesaid report, a case was registered at case crime No. 833 of 2007, under Sections 302, 323 and 504 IPC, PS Sikandrarau, district Hathras. After the registration of the case, the law set into motion and investigation of the case was taken up by PW-6, Inspector Krishna Mohan Singh, who inspected the spot, prepared site plan (Ext. Ka-3) and collected empty cartridges from the spot in the presence of witnesses (Ext. Ka-4). He also collected bloodstained and simple earth from the place of occurrence and after getting it sealed, prepared memo thereof. The investigating officer arrested accused-Satish and Rakesh. At the time of arrest of accused-Satish, the investigating officer also recovered one pistol 315 bore and two live cartridges from accused-Satish at 1.30 PM on 25.12.2007, who confessed to have killed the deceased Viresh from that pistol.

5. After completion of investigation, the investigating officer submitted charge sheet against accused Rakesh, Prakash, Satish and Bablu under Sections 302, 323 and 504 IPC, PS Sikandrarau, district Hathras.

6. After the recovery of 315 bore pistol from the possession of accused-Satish, a case at case crime No. 851 of 2007, under Section 25 of the Arms Act was also registered against accused-Satish. The investigation of the case under the Arms Act was entrusted to PW-8, SI Sohan Singh, who after completion of investigation, submitted charge sheet against the accused-Satish under Section 25 of the Arms Act.

7. As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions, where case was registered as S.T. No. 261 of 2008 and learned Additional Sessions Judge, Hathras framed the charges against the accused Rakesh, Prakash, Satish and Bablu under Sections 323/34 IPC, against accused-Rakesh, Prakash and Bablu under Section 302/34 IPC and against accused-Satish under Section 302 IPC, which were read and explained to them. The accused pleaded not guilty and claimed to be tried.

8. Accused-Satish was also charged under Section 25 of the Arms Act, which he denied and claimed trial.

9. Since S.T. No. 262 of 2008 under Section 25 of the Arms Act was the offshoot of S.T. No. 261 of 2008, under Sections 302/34, 323/34, 504 IPC, both the Sessions Trial were tried together and were disposed of by the learned Trial Judge by the same judgement and order.

10. After framing of the charge, accused Prakash died and therefore, case against him stands abated.

11. To bring home guilt of the appellants, the prosecution has examined as many as ten witnesses, out of whom PW-1, Brijesh Yadav, PW-2, Ram Gopal, PW-4, Maan Pal Singh and PW-5, Layak Singh were the witnesses of facts and remaining were formal one.

12. PW-1, Brijesh Yadav is the informant of the case. He reiterated the versions given in the FIR.

13. PW-2, Ram Gopal is the injured of the case. He deposed that about 15-20 days prior to the occurrence, there had been some altercation between accused-Rakesh and deceased-Viresh, who was his brother. He further deposed that at about 2.00 PM on 20.12.2007, when he was coming to his village from Sikandrarau and as soon as he reached near the brick kiln field of Jai Pal Singh, accused Rakesh, Prakash, Satish and Bablu assaulted him by lathi and hockey. He further deposed that thereafter he came to his house and sat on the roof. Due to the assault by the accused, he received injuries. On the roof, his son Brijesh, his wife Ruma Devi, his brother Viresh, the deceased, Viresh wife Saroj Devi and Maan Pal were also sitting along with him. When his brother Viresh came to know about the assault on him, he started abusing Rakesh and Prakash. On hearing the abuse, accused Prakash, Rakesh, Bablu and Satish came on the roof of accused-Satish, which is in front of the house of this witness and started abusing him. Thereafter, on the exhortation of accused Prakash, Rakesh and Bablu, accused-Satish fired 3-4 shots, out of which one shot hit his brother Viresh on the head, who fell down and was taken to hospital, where he succumbed to the injury. He further deposed that in addition to him, the occurrence was witnessed by his wife Smt. Ruma Devi, his son Brijesh, the first informant, deceased's wife Smt. Saroj and Maan Pal Singh of the village.

14. PW-3, Dr. Sanjay Kumar Singhal has conducted post-mortem examination on the body of the deceased and noted the following ante-mortem injuries:

1. Gun shot wound of entry 3 cm x 2 cm right side of skull in temporal region 2 cm away from eyebrow on left ear.

2. Gun shot wound of exit 4 cm x 3 cm on the left side of skull in parietal region 7 cm above the left ear. Margin everted.

No blackening or tattooing present. Bone fractured at entry and exit side.

15. In the opinion of the doctor, the cause of death was coma and shock as a result of anti-mortem injuries.

16. PW-4, Maan Pal Singh deposed that on 20.12.2007 at about 3.00 PM, he was sitting on the roof of Ram Gopal and was enquiring about the incident, which took place at 2.00 P.M. Viresh, the deceased also came on the roof of Ram Gopal. Accused Satish, Prakash, Bablu and Rakesh also came to the roof of Satish. Satish was armed with rifle. On the exhortation of Prakash, Bablu and Rakesh, Satish fired 3-4 shots, out of which one shot hit the head of deceased, due to which he died.

17. PW-5, Layak Singh, in his evidence deposed that at about 3.00 PM on 20.12.2007, when he was at this house, on hearing the sound of fire, when he reached at the house of Ram Gopal, he saw that Viresh was lying injured. He along with Brijesh and Ram Gopal, took him to the hospital, where he was declared dead.

18. PW-6, Inspector Krishna Mohan Singh, was the investigating officer of the case, who conducted investigation and submitted charge sheet against the appellants under Sections 302, 323 and 504 IPC. His evidence in detail has already been discussed above.

19. PW-7, SI Yashwant Singh was the witness of recovery of 315 bore pistol and two live cartridges from appellant-Satish, who confessed to have killed the deceased from that pistol.

20. PW-8, SI Sohan Singh was the investigating officer of case crime No. 851 of 2007, under Section 25 of the Arms Act. He conducted the investigation and submitted charge sheet against the appellant Satish under Section 25 of the Arms Act.

21. PW-9, Constable Raghubir Yadav in his evidence deposed that on 20.12.2007 he was posted as Head Constable at police station Sikandrarau. On that date on the basis of written information furnished by the informant Brijesh Kumar, he prepared Chik report No. 500 of 2007, which was entered into GD vide GD No. 42 at 20.15 PM on 20.12.2007.

22. PW-10, Dr. Jamal Ahmad, Chief Medical Officer, J.N. Medical College, Aligarh deposed that on 20.12.2007 he was posted at J.N. Medical College, Aligarh in the Emergency Department as Chief Medical Officer. On that date he had medically examined injured-Ram Gopal and found the following injury on his person:

1. Abrasion 3 cm x 2 cm on the right knee straight.

2. Laceration about 2 cm x 1 cm over left elbow, swelling around the wound.

3. Multiple abrasion over back.

23. In the opinion of the doctor, injury Nos. 1 and 3 were simple, whereas seriousness of injury No. 2 can be opined after x-ray. All the injuries can be caused by blunt object.

24. After the closure of prosecution evidence, the statements of the accused-appellants were recorded under Section 313 Cr.P.C., in which they denied the charges and claimed false implication. They further stated that the report of the Forensic Science Laboratory belied the prosecution case. Before the occurrence, Prakash's rifle had been deposited in the gun house under the order of competent authority.

25. However, the learned Additional Sessions Judge, Court No. 3, Hathras after hearing learned counsel for the parties and evaluating and assessing the evidence on record, convicted and sentenced the appellants as indicated herein above.

26. Hence, this appeal.

27. Heard Mr. Noor Mohammad, learned counsel for the appellants and Mr. Irshad Hussain, learned Additional Government Advocate and perused the record of the case.

28. Learned counsel for the appellants submits that only interested and related witnesses were examined and no independent witness has been examined, which makes the entire prosecution story doubtful. Learned counsel for the appellants further contended that no overt act has been assigned to the appellants Rakesh and Prakash and in view of the injuries received by the deceased and the injured, no case is made out against the appellants Rakesh and Prakash and they are entitled to be acquitted. Learned counsel for the appellants next contended that as per the report of Forensic Science Laboratory, Agra, the cartridges used in the commission of the occurrence were not fired from the country made pistol, which was recovered from the appellant-Satish, which makes the entire prosecution story doubtful. Placing reliance upon the decisions of Hon'ble Supreme Court in Suresh Singhal Vs. State (Delhi Administration), 2017 Law Suit (SC) 79 and Jhaptu Ram Vs. State of Himachal Pradesh, (2014) 12 SCC 410, learned counsel for the appellants submitted that case against the appellants shall not traverse beyond section 304 IPC.

29. Per contra, Mr. Irshad Hussain, learned Additional Government Advocate supported the findings of the learned Trial Court by stating that the prosecution has discharged its burden by establishing the guilt of the appellants beyond the hilt. He further submitted that the judgement is well reasoned and calls for no interference by this Court.

30. We are not convinced with the contention of learned counsel for the appellants that witnesses are not deposing the correct facts and framed a false case against appellants leaving the real culprits to go scot free. PW-1, Brijesh Yadav is the informant and son of the deceased. He deposed that in the first incident, which took place at about 2.00 PM, near the brick kiln field of Jaipal Singh, his father was assaulted by lathi and hockey by accused Rakesh, Prakash, Satish and Bablu. In the second incident when his father was sitting on the roof along with the complainant, his uncle Viresh, the deceased, at that time Prakash, Satish, Rakesh and Bablu came to the roof of Satish and thereupon Satish started indiscriminate firing with rifle on the exhortation of Prakash, Rakesh and Bablu. One of the shots, hit on the head of informant's uncle, due to which he fell down in a pool of blood and on the way to hospital, he succumbed to the injury. The occurrence was witnessed by Smt. Ruma Devi, Smt. Saroj and Maanpal. PW-2, who was an injured witness of the occurrence deposed that he was assaulted by the deceased by lathi and hockey near the brick kiln field of Jai Pal Singh and thereafter when he reached his house and was sitting on his roof along with his son Brijesh, his wife Ruma Devi, his brother Viresh, the deceased, Viresh wife Saroj Devi and Maan Pal, accused Prakash, Rakesh, Bablu and Satish came on the roof of accused-Satish and on the exhortation of accused Prakash, Rakesh and Bablu, accused-Satish fired 3-4 shots, out of which one shot hit his brother Viresh on the head, who fell down and on the way to hospital, he succumbed to the injury. Moreover, PW-4, Maan Pal Singh and PW-5 Layak Singh also supported the prosecution case.

31. Moreover, the witnesses were put to lengthy cross-examination, but nothing adverse could be elicited from their mouth to destroy the prosecution case. The evidence of the witnesses also find support from the medical evidence.

32. In Arjun and others Vs. State of Rajasthan, 1994 Suppl (1) SCR 616, it was argued before the Supreme Court that as parties were on inimical terms and some criminal proceedings were pending between them even at that time when the occurrence took place. Further PW-1 in that case was the brother of the deceased and informant in that case was son of deceased.

33. The Supreme Court brushed aside the argument of the learned counsel for the appellants therein and has held as under:

"We are not convinced by the aforesaid argument that either on account of animosity or on account of relationship, the witnesses did not divulge the truth but fabricated a false case against the appellants. It is needless to emphasis that enmity is a double edged sword which can cut both ways. However, the fact remains that whether the prosecution witnesses are close relatives of the deceased victim or on inimical terras with the deceased involved in the crime of murder, the witnesses are always interested to see that the real offenders of the crime are booked and they are not, in any case, expected to leave out the real culprits and rope in the innocent persons simply because of the enmity. It is, therefore, not a safe rule to reject their testimony merely on the ground that the complainant and the accused persons were on inimical terms. Similarly the evidence could not be rejected merely on the basis of relationship of the witnesses with the deceased."

34. The contention of the learned counsel that no independent witness was examined, it is to be noted that people who witnessed the occurrence usually do not want to get themselves exposed for certain reasons. Moreover, it cannot be denied that independent persons avoid to testify in such cases as they do not want to invite enmity of the accused persons. The manner in which this crime was committed, no independent person can even dare to come forward and depose against the appellants.

35. Hon'ble Apex Court in the case of Shiv Ram Vs. State of U.P. 1998 (1) SCC 149, has observed thus:

"Nowadays it is a common tendency that no outsider would like to get involve in a criminal case much less in the crime of present magnitude. Therefore, it is quite natural that no independent witness will come forward to assist the prosecution. It is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons but what is required in such situation is that the Court must scrutinize the evidence of such witnesses with utmost care and caution.

36. Moreover, it is admitted that the incident took place in the roof of the injured PW-2, Ram Gopal, where the deceased came after being heard that his brother was beaten by the accused appellants. Thereafter, accused-appellant also rushed to the roof of Satish and after exchanged of abuses between the parties, on the exhortation of accused- Prakash, Rakesh and Bablu, accused-appellant Satish fired shots, one of which hit the head of the deceased resulting in his death.

37. In the case of Rana Pratap and others Vs. State of Haryana, AIR 1983 SC 680, Hon'ble Apex Court observed as under:

"We do not understand the expression 'chance witnesses'. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that that they are mere chance witnesses'. The expression 'chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are 'chance witnesses' even where murder is committed in a street is to abandon good sense and take too shallow a view of the evidence."

38. Next contention of learned counsel for the appellants is that no overt act has been assigned to the appellants Rakesh and Bablu and in view of the injuries received by the deceased and the injured, no case is made out against the appellants Rakesh and Bablu and they are entitled to be acquitted.

39. Admittedly, the incident took in two parts. In the first incident, the allegations are that Rakesh, Prakash, Satish and Bablu carrying lathi and hockey assaulted the injured PW-2, Ram Gopal near the brick kiln field of Jai Pal Singh at about 2.00 PM, in which the injured received abrasion 3 cm x 2 cm on the right knee straight, laceration about 2 cm x 1 cm over left elbow, swelling around the wound and multiple abrasion over back. In the second occurrence, which took place at 3.00 PM, the allegations against the appellants are that after being assaulted, injured returned to his house and sat on the roof. Thereafter, Viresh, the deceased, who was real brother of injured-PW-2, Ram Gopal came there to inquire about the incident. At that time accused Prakash, Satish, Rakesh and Bablu came on the roof of Satish and on the exhortation of Rakesh, Prakash and Bablu, accused Satish fired 3-4 shots on the deceased, out of which one shot hit the deceased on the head causing his death. As per the allegations and the statements of the witnesses, all the accused shared common intention as all of them participated in both the incident, which took place after an interval of one hour.

40. It is to be noted that appellants Rakesh and Bablu have been convicted with the aid of Section 34 IPC and for convicting a persons with the aid of Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established (i) common intention and (ii) participation of the accused in the commission of the offence. If common intention is proved but no overt act is attributed to the individual accused, Section 34 IPC will still be attracted as essentially it involves vicarious liability.

41. In the present case there was a clear cut allegation against the appellants in the FIR that all the accused-appellants assaulted the injured-PW-2, Ram Gopal near the brick kiln field of Jai Pal Singh and thereafter all the accused persons participated in the second occurrence after one hour at 3.00 PM and on the exhortation of Prakash, Rakesh and Bablu, accused Satish fired shots killing the deceased. The act of the appellants suggests that they shared the common intention and all of them are liable to be punished vicariously.

42. In Barendra Kumar Ghosh Vs. King Emperor, AIR 1925 PC 1, while dealing with the scope of Section 34 IPC with the acts done in furtherance of the common intention, making all equally liable for the result of all the acts of others, the Court observed as under:

"".......the words of Section 34 are not to be eviscerated by reading them in this exceedingly limited sense. By Section 33 a criminal act in Section 34 includes a series of acts and, further, "act" includes omissions to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By Section 37, when any offence is committed by means of several acts whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things 'they also serve who only stand and wait'. By Section 38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Read together, these sections are reasonably plain. Section 34 deals with the doing of separate acts, similar of diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for 'that act' and 'the act' in the latter part of the section must include the whole action covered by 'a criminal act' in the first part, because they refer to it. Section 37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence. S.38 provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other."

43. In Takaram Ganapat Pandare Vs. State of Maharashtra, AIR 1974 SC 514, Hon'ble Apex Court reiterated that Section 34 lays down the rule of joint responsibility for criminal act performed by a plurality of persons and even mere distance from the scene of crime cannot exclude the culpability of the offence.

44. In Ramaswami Ayyangar and others Vs. State of Tamil Nadu, AIR 1976 SC 2027, the Hon'ble Apex Court observed that Section 34 IPC is to be read along with preceding Section 33 which makes it clear that the "act" mentioned in Section 34 includes a series of acts as a single act. The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise. Even a person not doing any particular act but only standing guard to prevent any prospective aid to the victim may be guilty of common intention.

45. The Apex Court in Suresh Vs. State of UP, AIR 2001, SC 1344, opined as under:

"For the applicability of Section 34 to a co-accused, who is proved to have common intention, it is not the requirement of law that he should have actually done something to incur the criminal liability with the aid of this section. It is now well settled that no overt act is necessary to attract the applicability of Section 34 for a co-accused who is otherwise proved to be sharing common intention with the ultimate act done by any one of the accused sharing such intention.

Section 34 of the Indian Penal Code recognises the principle of vicarious liability in the criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention pre-supposes prior concert, which requires a pre- arranged plan of the accused participating in an offence. Such a pre- concert or pre-planning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on a spur of moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case."

46. In Goudappa and others Vs. State of Karnataka, (2013) 3 SCC 675, Hon'ble Supreme Court by opining that Section 34 IPC lays down a principle of joint liability in doing a criminal act and the essence of that liability is to be found in the existence of common intention.

47. After considering a host of decisions, Hon'ble Supreme Court in Vijendra Singh Vs. State, (2017) 11 SCC 129 has held as under:

"In the case at hand, it is contended that there is no injury caused by lathi or ballam. Absence of any injury caused by a lathi cannot be the governing factor to rule out Section 34 IPC. It is manifest from the evidence that the accused-appellants had accompanied the other accused persons who were armed with gun and they themselves carried lathi and ballam respectively. The carrying of weapons, arrival at a particular place and at the same time, entering into the shed and murder of the deceased definitely attract the constructive liability as engrafted under Section 34 IPC."

48. In view of the aforesaid settled legal position, we are of the view that the accused-appellants had rightly been held responsible for the ultimate criminal act done by all the appellants in furtherance of the common intention of all. Once accused-Rakesh, Prakash and Bablu were present and assaulted the injured with lathi and hockey at the first incident, which took place at the brick kiln field of Jai Pal Singh and they were also present at the scene of second occurrence and on their exhortation, the overt act was committed by accused-Satish, the common intention to kill is more than evident.

49. Next contention of learned counsel for the appellants is that as per the report of Forensic Science Laboratory, Agra, the cartridges used in the commission of the occurrence were not fired from the country made pistol, which was recovered from the appellant-Satish.

50. It may be noted that second incident in which deceased was done to death took place at 3.00 P.M. on 20.12.2007 in which rifle of Prakash was allegedly used by Satish for committing the crime. Accused Satish was arrested on 25.12.2007, i.e. after five days of the occurrence. As per the case of the defence itself, the rifle, which was alleged to have been used in the commission of crime was deposited in the private gun house with the permission of the competent authority. In the intervening period of five days, they managed to get the rifle deposited in the private gun house in collusion with the Sub-Divisional Magistrate. For depositing the rifle in the private gun house, no permission of Sub-Division Magistrate is required as per law. After depositing the gun in the private gun house, accused-Satish was arrested with country made pistol and in order to detract the investigation, he confessed to have killed the deceased with the said country made pistol. The country made pistol along with empty cartridges were sent to Forensic Science Laboratory, Agra, which has opined that the empty cartridges were not fired from the country made pistol recovered from the accused-Satish. It may be noted that shots were made from the rifle of Prakash by the accused-Satish and not from the country made pistol, recovered from the appellant-Satish as suggested by the learned counsel for the appellants and, therefore, the appellants can get no benefit from the report of the Forensic Science Laboratory, Agra. At the most, non recovery of pistol from which shots were fired can be said only an investigational lapse and the benefit thereof cannot be given to the appellants. It is a case of direct evidence which was committed by the appellants in a broad day light in the presence of witnesses, who witnessed the occurrence with their naked eyes and deposed against the appellants and their testimonies were remain unshaken during the trial. Further statements of the witnesses find full corroboration from the medical report.

51. In Gurcharan Singh Vs. State of Punjab, AIR 1963 SC 340, Hon'ble Supreme Court held as under:

" It cannot be laid down as a general proposition that in every case where a firearm is allegedly used by an accused person, the prosecution must lead the evidence of a ballistic expert to prove the charge, irrespective of the quality of the direct evidence available on record. It needs little emphasis that where direct evidence is of such an unimpeachable character, and the nature of injuries, disclosed by the post-mortem notes is consistent with the direct evidence, the examination of ballistic expert may not be regarded as essential. However, where direct evidence is not available or that there is some doubt as to whether the injuries could or could not have been caused by a particular weapon, examination of an expert would be desirable to cure an apparent inconsistency or for the purpose of corroboration of oral evidence."

52. The aforesaid view was reiterated by Hon'ble Supreme Court in Vineet Kumar Chauhan Vs. State of Uttar Pradesh, (2007) 14 SCC 660.

53. So far as the last contention of the learned counsel for the appellant that the case against the appellants shall not traverse beyond section 304 IPC, is concerned, it has no leg to stand and the facts of the cases relied upon by the learned counsel for the appellants are not applicable to that of the present case.

54. In Suresh Singhal Vs. State (Delhi Administration), it was found by the Hon'ble Apex Court that scuffle took place between the deceased and others on one side and appellant on other and during the course of scuffle deceased and others tried to strangulate the appellant and the appellant in self defence fired at the deceased. In the facts of the aforesaid case, Hon'ble Supreme Court converted the case from section 302 IPC to section 304 IPC.

55. In Jhaptu Ram (Supra), Hon'ble Supreme Court found that prosecution has not led any evidence to show that offence committed by the appellant was premeditated and, therefore, in the fact of the aforesaid case, Hon'ble Court converted the case from Section 302 IPC to that of 304 IPC.

56. In the present case there were serious allegations against the appellants that initially they assaulted the injured near the field of Jai Pal Singh and thereafter when the injured reached the house and deceased came to inquire about the incident, he fired 3-4 shots, out of which one shot hit the deceased on the head resulting in his death and, therefore, the cases relied upon by the learned counsel for the appellants are not applicable to the facts of the present case.

57. In view of what has been indicated herein above, we are of the view that the prosecution has fully established its case beyond reasonable doubt against the appellants. The impugned judgement and order of conviction and sentence dated 30.9.2015 passed by the learned Additional Sessions Judge, Hathras in ST Nos. 261 of 2008 and 262 of 2008 and which has been assailed in this appeal calls for no interference by this Court.

58. Accordingly, the criminal appeal is dismissed.

59. The appellant-Satish is in jail. He shall remain in jail to serve out the sentence awarded to him by the learned Trial Court.

60. The appellants-Rakesh and Bablu are on bail. Their bail bonds are cancelled and sureties are discharged. The Chief Judicial Magistrate, Hathras is directed to take the appellants Rakesh and Bablu into custody forthwith to serve out the sentence awarded to them by the court concerned.

61. Office is directed to send a copy of this order to the court concerned for compliance and compliance report be submitted to this Court within two months.

(Krishna Pratap Singh, J) (Ramesh Sinha, J)

Order Date :- 22.5.2019

Ishrat