ARVIND KUMAR Vs. STATE

JUDGEMENT

(1.) ARVIND Kumar has challenged his conviction under Section 302 of the Indian Penal Code, 1860 (IPC, for short) for having committed murder of Kusheshwar on 29th April, 2006 by a fire arm injury. The impugned judgment dated 12th January, 2011, however, acquits the appellant under Sections 25 and 27 of the Arms Act, 1959 on the ground of want of sanction. State has not preferred any appeal against the said acquittal. By order on sentence dated 27 th January, 2011, the appellant has been sentenced to Rigorous Imprisonment for life and fine of Rs.10,000/ -. In default of payment of fine, the appellant has to undergo Simple Imprisonment for a period of six months. Benefit of Section 428 of the Code of Criminal Procedure, 1973 (Cr.P.C., for short) has been granted.

(2.) LEARNED counsel appearing for the appellant did not dispute and challenge before us homicidal death suffered by Kusheshwar as a result of fire arm injury, but has questioned the reasoning given in the impugned judgment and the prosecution case on the involvement of the appellant. Homicidal death suffered by the deceased Kusheshwar is established from the MLC (Exhibit PW -1/A), which records that the deceased was brought to Sanjay Gandhi Memorial Hospital, Mangolpuri on 29th April, 2006 at 10.30 P.M. by Head Constable Shiv Charan, 1093 of PCR van. The patient was declared brought dead. Blood pressure was not recordable and ECG showed a straight line. The MLC also mentions about wounds noticed on the deceased, i.e., Kusheshwar. The said MLC was proved by Dr. Indermeet Singh (PW - 1), who has deposed that on local examination he had noticed a circular wound of 4 cm in diameter on the left side of the chest near left axilla and there was also a circular wound of about 4 cm in diameter on the right side of the back near right axilla. Overlying skin had black stain. The post -mortem on the body was conducted by Dr. Manoj Dhingra (PW -4), who in his report (Exhibit PW -4/A) and in his court deposition has opined as under: -

(3.) TH May, 2006. The prosecution also relies upon empty cartridge, which was recovered/found at the place of crime, i.e., on the road near G Block, Nihal Vihar and the CFSL report (Exhibit PW -15/A), which opines that the said fired cartridge mark EC1 recovered from the place of crime was fired from the weapon examined. The said report also opines that the fired cartridge EC2 found in the pistol matched with the fired cartridge EC1, which was recovered from the spot. As the said report firing pin mark, breech face marks and chamber marks on EC1 and EC2 matched with the test fired bullet TC1. 4. Learned counsel for the appellant has disputed and challenged the prosecution version primarily on the ground that the seized cartridge (EC1) found at the place of occurrence as per the seizure memo (Exhibit PW -13/B) bore number KF 8mm 00, a number which was also mentioned in the sketch of the said cartridge marked Exhibit PW -13/A, but as per the court depositions of Constable Ashok Kumar (PW -13), Inspector Ramesh Singh (PW -14) and ACP Harpal Singh (PW -18), who was also the Investigating Officer, the said cartridge produced in the court bore the number KF 8 mm 86. It is also highlighted that ACP Harpal Singh (PW -18) had stated that the cartridge found from the spot bore the number KM 8 MM 00, which is not the number of the cartridge recovered from the spot, as per the prosecution case. Other related arguments raised will be noticed in the later portion of this judgment.