VIKAS @ VIKKY Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) VED Prakash (PW1) filed the First Information Report on 19th October, 2007 at about 21:05 hours after having had taken the bullet -ridden body of his wife to Himalayan Jolly Grant Hospital, where the doctors attending pronounced that the victim has died. In the First Information Report, it was stated that it is the appellant, who has committed the murder of the victim. It was stated that the appellant had craving for the eldest daughter of PW1, namely, Ms. Swati (PW2), and since PW2 refused to accede to the advances of the appellant, appellant turned towards the victim, but even then did not succeed as the victim turned the appellant away. It was stated in the First Information Report that on 19th October, 2007 at about 7:15 PM, PW1, PW2, Ravi Kumar (PW3), the son of the PW -1, Neha (PW4) another daughter of PW1 and the victim were inside the house of PW1, when for some work, the victim went outside the house of PW1, and at about that time, PW1, PW2, PW3 and PW4 heard that the appellant is saying something to the victim. No sooner they heard the same, PW1, PW2, PW3 and PW4 came out and saw that the appellant, having a pistol in his hand, is firing on the victim. It was alleged that the appellant had also fired on PW1 and others, but some how, they did not get injured. It was alleged that thereafter, appellant fled. Therefore, in the First Information Report, it was alleged that PW1, PW2, PW3 and PW4 are eye -witnesses to the incident, when the appellant fired upon the victim. In course of investigation, the Police recorded statements of PW1, PW2, PW3 and PW4 under Section 164 of the Criminal Procedure Code. In the statements, so given, PW1, PW2, PW3 and PW4 stated almost what they had stated in the First Information Report. The dead -body of the victim, which was lying at Himalayan Jolly Grant Hospital, was transferred to Doon Ladies Hospital for postmortem and the same was conducted by Dr. Yatendra Singh (PW5). In course of postmortem, it transpired that three bullets entered the body of the victim and all of them also escaped from the body of the victim. It transpired that yet another bullet entered the body of the victim and got embedded in the body of the victim. In course of postmortem, this bullet was retrieved, sealed and handed over to the Investigating Agency. In course of investigation, the Police recovered two empty shells from the place of occurrence. At the instance of the appellant, according to the Police, a pistol with magazine and a live bullet was recovered. The pistol with magazine and the live bullet, as were recovered, were allegedly sent to the Forensic Science Laboratory along with two empty shells found at the place of occurrence. Surprisingly, in the report submitted by the Forensic Science Department, they acknowledged receipt of a country -made pistol, a live bullet and two empty shells. The Forensic Science Laboratory, after having had so acknowledged, reported that the pistol, i.e. the country -made pistol was used for firing the empty shells and it was also stated that the pistol, i.e. the country -made pistol had been fired through. In the premises, upon completion of the investigation, appellant was charged for having committed offences punishable under Section 302 of the Indian Penal Code as well as those punishable under Section 25 of the Arms Act, besides for an offence punishable under Section 307 of IPC. On completion of the trial, appellant has been exonerated of the charge for offence punishable under Section 307 of IPC. He has been convicted for offence punishable under Section 302 of IPC and has been awarded sentence for life with Fine of Rs.10,000/ -, and has also been convicted for offence punishable under Section 25 of the Arms Act and has been awarded imprisonment for one year and Fine of Rs.5,000/ -.

(2.) LEARNED counsel for the appellant submitted before us that there is no evidence on record, on the basis whereof, appellant could be convicted, either for an offence punishable under Section 302 of IPC, or for an offence punishable under Section 25 of the Arms Act. Learned counsel submitted that PW1 gave evidence in course of examination in chief; he did not give evidence in course of cross - examination after having had answered a few questions in cross - examination as he died and, accordingly, the evidence of PW1 cannot be accepted as sacrosanct to punish the appellant. Learned counsel further submitted that PW2, in course of examination in chief, stated what had been stated in the First Information Report and, accordingly, supported the prosecution case against the appellant, but in cross - examination, altogether refused to support the prosecution case. According to the learned counsel, evidence given by such a witness will not be safe to rely for convicting a person for murder. The basic ingredient, i.e. the raison d'etre for the crime being the desire of the appellant to have PW2 has not been established by any of the prosecution witnesses. It was submitted that in such circumstances, there is no reason that the appellant will become so wild to come to the doorstep of the victim and will pump bullets into her and, after having done so in the presence of PW1, PW2, PW3 and PW4, will leave that place. Learned counsel submitted that PW3 and PW4 did not at all support the prosecution case. It was submitted that, therefore, there is no evidence in support of the alleged motive highlighted by the prosecution and there is also no evidence that the appellant was involved with the crime in question. Learned counsel submitted that though S.S. Negi ((PW12), the Investigating Officer, said to have recovered a pistol with magazine at the instance of the appellant, but the Forensic Science Laboratory reported receipt of and examination of a country -made pistol. Learned counsel submitted that having had noticed this lacuna, the prosecution called S.K. Sharma (PW13), the Ballistic Expert, to give evidence. PW13 submitted a report and produced a positive print of a pistol. Learned counsel drew our attention to the case opening worksheet and, in particular, to the endorsement pertaining to the pistol. The same only talks about a pistol and not a pistol with magazine. Learned counsel drew our attention to the positive print of the pistol, as was produced by PW13; the same suggests a pistol with magazine. Learned counsel submitted that, according to PW13, the pistol, a photograph whereof was produced, is a China -made pistol. Learned counsel submitted that if the same was a China -made pistol and if a China -made pistol was, in fact, sent for examination, then, there was no question of the Forensic Science Laboratory reporting that only a country -made pistol was received for examination.

(3.) WE , accordingly, conclude that the learned Judge erred in holding the appellant guilty for offences punishable under Section 302 of IPC and under Section 25 of the Arms Act. The Appeals; one against the conviction under Section 302 of IPC and the other against conviction under Section 25 of the Arms Act, are allowed. The judgment under Appeals is set aside. Appellant is on bail. He need not surrender. His bail bond is cancelled and sureties are discharged.