GEORGEJOHN VICTOR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 31-7-1991 passed by 4th Additional Sessions Judge. Nagpur in Sessions Trial No. 280/90 for conviction and sentence for the offence punishable under Section 302 of Indian Penal Code and under Section 3 read with Section 27 of the Indian Arms Act.

(2.) THE facts of the prosecution case are as under : The incident in this case took place on 22-12-1989 in the locality of Gorabazar in Kamptee at about 5 to 6 p. m. in which Stela the wife of appellant accused George had received firearm injuries on chest in the house of her mother Josphin (P. W. 8) and she died almost instantaneously on the spot. The house of parents of appellant George and Josphin (P. W. 8) are in Gorabazar locality and distance is of 4-5 houses. The appellant was married to Stela on December 28, 1987. After marriage, Stela resided with appellant in the house of his father for about 1 1/2 years. They had one daughter. The appellant was serving as Ambulance Assistant in Pulgaon Military Depot, It is the prosecution case that appellant performed second marriage with one Bhanumati at Pulgaon. The appellant brought Bhanumati to Kamptee. There was exchange of words between appellant and Stela and quarrel ensued. Appellant insisted that Bhanumati would reside with him in the same house at Kamptee. Stela did not like, and therefore, she came to reside with her mother Josphin's house (P. W. 8), some six months prior to the incident. During this period, appellant and Stela were living separately. As appellant did not provide anything to Stela, she complained to the Commanding Officer, Military Depot. Pulgaon against the appellant. After enquiry, the Commanding Officer, Military Depot, Pulgoan instructed appellant to hand over household articles to Stela. In November 1989, the appellant sustained fracture while he was serving in Pulgaon. He was admitted for treatment in Sewagram Medical College, Wardha. He got discharge and was shifted to Pulgaon and thereafter was moved to Military Hospital, Kamptee on 17-12-1989 for review of his medical case. This military hospital is at a distance of about 1 1/2 kilometers from Gorabazar locality. While the appellant was admitted in military hospital, on 22-12-1989 he went to his house, then came walking to the house of Josphin (P. W. 8) where the members of the family of P. W. 8 had assembled to see of Vandana (P. W. 11) the sister of deceased as she was going to hostel at Nagpur. The accused was murmering something. He again went to his house and returned with a gun. He stood on the road just in front of Josphin P. W. 8's house. He pointed his gun towards Aric (on Eric), (P. W. 9), the brother of deceased who was standing in the open courtyard and started giving abuses. Stela asked him what he wanted to say and he should talk to her directly. Thereupon the accused gave some abuses to Stela, aimed the gun at her chest and fired one shot. The daughter of Stela was in the right arm of Stela. Stela sustained injuries and both fell down on the floor inside, the door of the house. Accused thereafter was seen going to his house. Aric (P. W. 9) immediately rushed to Police Station, Kamptee, lodged his oral complaint which was reduced into writing (Ex. 60) and an offence under Section 307 was registered against the accused. Police reached the spot. Stela did not speak anything or did not make any movement. Her body was covered with bed sheet. Police immediately removed her to Municipal Hospital, Kamptee where she was declared dead P. S. I. Nandkumar Oza (P. W. 15) has prepared the spot panchanama (Ex. 12 ). P. S. I. Nand Kumar (P. W. 15) has effected the house search of accused in presence of the mother of accused from where one gun of single barrel and four cartridges of 12 bore rifle were seized at Ex. 36. , P. S. I. Nand Kumar (P. W. 15) was recording the statement of witnesses when he noticed that there was fire in the house of accused. He immediately gave a telephonic message to Police Station. P. W. 15 has drawn the inquest report Ex. 26 and sent the dead body for post mortem examination. P. I. , M. M. Chouhan (P. W. 10) arrested the accused on the next day vide Arrest Panchanama Ex. 13. While in custody, the accused expressed his willingness to discover the gun. The memorandum Ex. 33 was prepared in presence of panchas. In pursuance of the memorandum, the accused produced a gun which was in two pieces by removing the earth and stone from the pit in the small lane in front of house of one Charandas Ramji Chaware. The gun (Article 1) was seized vide Seizure Memo Ex. 32. Similarly, on 25-12-1989 the accused made a statement that he would show the empty cartridges of the bullet. The memorandum was prepared in presence of panchas Ex. 35. The accused produced one empty cartridge from the house of his brother vide Seizure Memo Ex. 34. P. S. I. Oza (P. W. 15) gave a requisition to Medical Officer on dated 27-12-1989 (Ex. 21) requesting to give post mortem report, the clothes of the deceased, pellets of rifle and blood bottle. The property was seized. Clothes of deceased which were handed over by the Medical Officer were seized vide Seizure Memo Ex. 15. Police Constable Mohan, B. No. 1481 has brought one paper packet containing two small round pellets wrapped in cotton, two small glass bottles, one big bundle containing clothes which were seized as per Ex. 15. The seized property was forwarded to Chemical Analyser for analysis vide forwarding letters Ex. 51 to 53 and P. W. 15 received the C. A. Reports Exhibits 29, 74 and 75. P. W. 15 filed charge-sheet.

(3.) DURING the trial, the prosecution has examined in all 15 witnesses. Josphin Anthony (P. W. 8), Aric Anthony (P. W. 9) and Vandana Anthony (P. W. 11) are respectively the mother, brother and sister of deceased Stela who are eye-witnesses. Similarly, Mohan Kanojia (P. W. 2) and Badalkumar (P. W. 7) are also the eye-witnesses. John (P. W. 1) and Dharamraj (P. W. 3) are panchas on memorandum of accused and discovery and subsequent recovery on spot. Selvemani (P. W. 4) was examined because he was an indoor patient in Surgical Ward of Military Hospital, Kamptee. Mohasin Razzak (P. W. 5) is a Commanding Officer. Dr. Mohan Dubbewar (P. W. 12) has performed autopsy and Arutla Rao (P. W. 13) is examined as ballestic expert. Others are the police witnesses and the formal witnesses. The defence of the accused is of total denial, false implication and alibi. The accused has not examined any witness in his defence.