TARA SINGH Vs. STATE

JUDGEMENT

(1.) THE appellant was accused of two offences punishable under the Indian Penal Code, 1860 and the Arms Act, 1959. It was alleged that the appellant through an unlicensed gun fired upon the victim and the said firing caused the death. For having had murdered the victim and for possessing the unlicensed gun, used for the murder, charge was framed, upon acceptance of the report filed by the police. Appellant, having denied the charge, trial commenced. At the trial, two alleged eyewitnesses, who were respectively the wife and the brother of the victim, stated in their evidence that in their presence, appellant, on being asked by another person, fired upon the victim, who was sleeping in the month of July, 1998 on the open courtyard with lights on. Post-mortem was carried out on the dead body and the doctor, who conducted the post-mortem, deposed. According to his deposition, cause of death was firing of a firearm, through which 12 bore bullet was fired and the said bullet struck inside the body of the victim. Apart from the bullet, which was extracted from the body of the victim, another bullet was found at the place of occurrence. Those bullets and a firearm were tendered in evidence. The ballistic expert proved that the bullet, which was struck inside the body of victim and which caused the death, was fired from the firearm, which was tendered in evidence. By purporting to place reliance upon a seizure list, prosecution purported to establish that the firearm, which was tendered in evidence, was seized from the appellant.

(2.) THE Sessions Judge did not accept seizure of the said firearm from appellant. Accordingly, the charge that appellant was in possession of an unlicensed gun, was rejected by Sessions Judge and the appellant was exonerated of the said charge. Prosecution preferred an appeal against that portion of the judgment and order of the Sessions Judge, by which the case of the prosecution to the effect that the said firearm was seized from appellant, was not accepted by the Sessions Judge and in consequence thereof, the appellant stood exonerated of the charge framed against him of possessing an unlicensed firearm, which charge, if proved, is punishable under the Arms Act. This appeal appears to have had been preferred five years after the judgment was rendered by the Sessions Judge, without an application for condonation of delay in preferring the appeal. A Division Bench of this Court, noticing the said state of affairs, dismissed the appeal on the ground that appeal is not maintainable. This order was passed by the Division Bench on 24.7.2007.

(3.) LEARNED counsel for the prosecution, who is now appearing, is emphasizing on the evidence given by the alleged eyewitness, which according to him, could not be shaken in cross examination.