PATEL HARILAL MOHANLAL JIVANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) ALL the three appeals are directed against the judgment rendered by learned Additional Sessions Judge, Rajkot at Gondal on 30th August, 1980 in Sessions Case No. 15/80. The facts which gave rise to these appeals may be briefly stated as under:

(2.) THE incident occurred at village Movia, Taluka Gondal, District Rajkot on 20th October, 1979. On a public road which is of width of about 20 ft. some boys were enjoying by igniting crackers. The Diwali festival was nearby. On both the sides of that road there are shops and there is also a building where on the ground -floor there is State Bank of Saurashtra and if one climbs about 17 steps, there is office of a Co -operative Society. There is a verandah immediately after the stair -case and the prosecution case is that because of the crackers the persons on the first floor thought that that might cause damage to the property and the appellant, who was original accused No. 1, came out and stood in the verandah. Accused No. 2 went down stairs in the chawk and tried to persuade the boys which resulted in a small scuffle. At that time according to the prosecution case, accused No. 1 took out pistol and fired three shots. The first shot did not hit anyone. However by the second and the third shots, P.W. 2 Jasmat Exhibit 11 was injured and so also one Jagdish died. As a result one Hansraj P.W. 1 Exhibit 10 filed a complaint. That led to the investigation which was carried on by P.S.I. Raval Exhibit 52. He went to the place of scene of offence, prepared panchnama of the place of scene of offence and recorded several statements. Ultimately the house of accused No. 1 was searched and one pistol -Art. 11, was recovered and the panchnama Exhibit 26 was prepared. The pistol which was recovered was sent to Director of Forensic Laboratory for opinion. Ultimately as a result of the investigation four persons were arrested including the appellant and charge -sheet was filed against the four persons. In due course, the case came to be committed to the court of Sessions and at the Sessions trial, prosecution examined 26 witnesses. The accused denied the guilt and in defence examined Dr. Bipin Shah, to establish that accused No. 1 had a fracture on the right fore -arm and the hand movement of accused No. 1 was not possible. According to him though it was possible for accused No. 1 to hold a pistol he was not in a position to raise his hand upward or in a straight line because of the plaster. That was the position from 16 -10 -1979 and therefore the defence case was that so far as accused No. 1 is concerned, it was impossible that he will be able to fire with the help of a pistol. Ultimately after appreciating all the evidence on record, the learned Additional Sessions Judge, Gondal, acquitted accused Nos. 2, 3 and 4 and convicted accused No. 1 for an offence under Section 307 I.P.C. and also for an offence under Section 25 of the Arms Act. Accused No. 1 was sentenced to suffer R.I. for a period of four years and to pay a fine of Rs. 500/ - i.d. to suffer R.I. for 3 months for offence under Section 307 I.P.C. For an offence under Section 25 of the Arms Act, he was sentenced to suffer R.I. for a period of three months. Accused No. 1 filed Criminal Appeal No. 1000/80 challenging his conviction and sentence. The State filed Criminal Appeal No. 1289/80 challenging the acquittal of accused No. 1 for an offence under Section 302 I.P.C. The State also filed Criminal Appeal No. 1287/80 for enhancement of sentence in case the case was held proved not under Section 302 but under Section 307 I.P.C. According to State sentence inflicted under Section 307 I.P.C. was not adequate. In this case what we feel is that the prosecution has totally failed to establish that the appellant accused No. 1 fired a firearm from the verandah of the upper floor. The complainant P.W. 1 Hansraj Exhibit 10 did not support the prosecution and he only stated that the firing took place from the verandah but he did not name accused No. 1, while Jasmat Exhibit 11, Durlabhji Premji P.W. 4, Exhibit 14, Ravji Bhuta P.W. 5 Exhibit 15, Ranchhod Dudabhai P.W. 6, Exhibit 16, Vashram Ramji P.W. 7, Exhibit 17 and Girdharlal Bachubhai, P.W. 10 Exhibit 20 named accused No. 1. They all stated that it was accused No. 1 who fired from the verandah and that each had seen him. Though they support the prosecution to this extent they were all contradicted on other aspects of the case and they thereafter when cross -examined by the defence gave entirely different version. Some of them have tried to support the defence saying that accused No. 2 was encircled and accused No. 1 was shouting that accused No. 2 should be released and thereafter he had fired suggesting right of private defence to accused No. 1. Some of them have in cross -examination entirely changed their story and stated that they had not seen accused No. 1. Thus they gave three different versions one version was in examination in chief; second in the cross -examination of the Public Prosecutor in the sense that the contradictions on various other points were brought on record and the third version which was entirely different came out in the cross -examination of the defence. We are not impressed by the story that accused No. 2 was encircled and that there was any right of private defence. There is not even a scratch or bruise to accused No. 2. It may be suggested that one may not have a scratch or a bruise and yet one may apprehend grievous hurt and either himself or any other person apprehending grievous hurt will have a right of private defence of a human being. But in this particular case, it does not appear to be so. However, that aspect is also not very important because ultimately these are all faint suggestions and the witnesses are self -contradictory, unworthy and not reliable. They cannot be believed for this version or that version. Their story is so improbable that no reliance can be placed whatsoever on their testimony. Their examination -in -chief cannot be accepted as true nor their cross -examination. The whole case of the prosecution entirely hangs upon a thin thread and that thread is whether accused No. 1 ever fired from the verandah. Now on this aspect there is general support in the sense that every one stated that the firing was from the verandah. Some did not name accused No. 1; some stated that he fired because of right of private defence and some stated that we did not identify the accused. But no one stated that he was someone else who fired. But the real crux of the problem is whether the firing could have taken place in this particular case from the verandah. It may be stated that the distance as a crow flies from the place where the accused no. 1 was standing in the verandah and where Jasmat or Jagdish, who died, was in any case not less than 20 to 25 ft. One more thing which is required to be stated is that so far as the pistol Art. 11 is concerned, there is no conclusive evidence that it was that firearm which was used at the time of the incident. The pistol which was recovered was one 22 Astra pistol bearing No. 132401 (described as Exhibit A by the Forensic Laboratory). The two bullets which were recovered - one from the dead body of Jagdish and other from the body of Jasmat were given Exhibit B and G by the Forensic Laboratory and the result of the examination was as under:

(3.) NOW therefore what remains is the evidence of the witnesses that accused No. 1 fired from the verandah which was at a distance of 20 to 25 ft. Here again there is a difficulty. P.W. 20 Dr. Kirit Ambalal Mithawala, Exhibit 46 who examined Jasmat found that there was a punctured wound and according to him the entrance of the bullet must be from a distance of about 6 to 8 inches, meaning thereby less than one foot. In cross -examination he stated that though he was not an expert on the firearm, he was an expert on firearm injuries. He also clearly stated that if a person was standing on the ota of 5 ft. height and he fired a shot on a person who is standing in front of him, injury would not be possible because in that case the degree would be 30. Now here the prosecution case is that the person who standing in a verandah and to reach that verandah one has to climb almost 17 steps. Now, therefore, it is clear from the evidence of Dr. Kirit Exhibit 46 that from the verandah if firing was done such an injury to Jasmat was not possible; it was only possible if the bullet was fired from a distance of less than a foot. Another doctor, Dr. Ajmera Exhibit 43, who had performed surgery on Jasmat and who took out the bullet from his abdomen wall is examined and he is not asked as to from what distance the firing would have taken place. This doctor also had performed post -mortem examination on deceased Jagdish. He had also taken out the bullet from the dead body and he gave opinion that the injuries were ante -mortem and the cause of death was due to cardiac respiratory failure as a result of injury to brain and its vital centres on account of bullet injury. He clearly in his cross -examination stated that the charring and blackening around injury No. 5 was visible. According to him blackening and charring would be found if the revolver or pistol is discharged within the radius of 2 ft. He however clarified that charring and blackening would be there if the revolver shot is fired within 5 ft. Now, therefore, even the injury to Jagdish was possible only if the bullet was fired within a range of five ft. only. That is not the prosecution case. Charring and blackening would clearly suggest that the bullet was fired from a very short distance. Well -known author N. J. Modi in his Medical Jurisprudence and Toxicology,20th Edition, Page 227, in regard to distance of the firearm stated as under: