VIJAL SINGH Vs. STATE OF U P

JUDGEMENT

(1.) Heard learned counsel appearing on behalf of the parties.

(2.) Vijai Singh, who is appellant in Criminal Appeal No. 518 of 2003 and Ashok Kumar and Vinod Kumar, who are respondents in Criminal Appeals Nos. 516 and 517 of 2003 were convicted by the trial court u/s. 302 read with Sec. 34 of the Indian Penal Code (for short "IPC") and sentenced to undergo imprisonment for life. On appeal being preferred, the High Court acquitted Ashok Kumar and Vinod Kumar; whereas modified conviction of accused Vijai Singh from Sec. 302 read with Sec. 34 of the Indian Penal Code to Sec. 302 Indian Penal Code simpliciter. Hence, these appeals by special leave. Criminal Appeal No. 518 of 2003 has been filed by accused Vijai Singh against the order of the High Court whereby his conviction has been upheld. Criminal Appeals Nos. 516 and 517 of 2003 have been filed by the complainant and the State of Uttar Pradesh respectively against order of acquittal of accused Ashok Kumar and Vinod Kumar.

(3.) The conviction of accused Vijai Singh is based upon the evidence of PW 1 Kunwar Pal Singh. Though this witness is the brother of the deceased, but he has supported the prosecution case in all material particulars and we do not find that the two courts have committed any error in accepting his evidence, more so, when his evidence is corroborated by medical evidence as Dr. M.M. Sharma, PW 5, who held the post-mortem examination on the dead body of deceased found injuries caused by the country-made gun, empty was also recovered from near the dead body and the ballistic expert, Ram Ashray Pandey, CW 1 stated that the empty was fired from the country-made gun recovered upon the disclosure statement made by one of the accused Vinod Kumar. Learned counsel appearing on behalf of the appellant submitted that a bullet was recovered from the dead body of the deceased and the same was of .303 bore, which could not have been fired from the country-made gun which was used during the course of the present occurrence. It has been further submitted that a prayer was made for sending the recovered bullet to the ballistic expert to verify whether the same was of .303 bore, but the prayer was rejected and when the High Court was moved, the order of rejection was upheld. It has been then submitted that because of non-examination of the recovered bullet by the ballistic expert, the accused has been prejudiced and on this ground alone, he should have been acquitted. In support of his submission, learned counsel has placed reliance upon State of M.P. V/s. Surpa. In our view the submission has been made only to be rejected for two reasons; firstly, the ballistic expert, CW 1 has nowhere stated in unequivocal terms that bullet recovered from the body of the deceased was of .303 bore; secondly, in the very examination-in-chief CW 1 stated that the cartridge of .303 bore could be also fired from the country-made gun Ext. 14, which according to prosecution case was used in the present occurrence. Thus, we are of the view that on the basis of the evidence of the ballistic expert, CW 1 it cannot be said with reasonable amount of certainty that the bullet recovered was of .303 bore and in any view of the matter the ballistic expert, CW 1 opined that cartridge of .303 bore could be fired from the country-made gun recovered, which was used during the course of the occurrence. In the decision of this Court cited by learned counsel appearing on behalf of the appellant, apart from the reason that the bullet recovered from the body of the deceased could not have been fired from the firearm used by the accused, this Court otherwise also doubted veracity of the prosecution case and, accordingly, it was held that the accused was entitled to acquittal. In view of the foregoing discussion that the evidence of PW 1 is supported by the medical evidence, we are of the view that the High Court was quite justified in holding that the prosecution succeeded in proving its case against the appellant Vijai Singh beyond reasonable doubt and converting his conviction from Sec. 302 read with Sec. 34 Indian Penal Code to Sec. 302 of the Indian Penal Code.