KALYAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The present Criminal Appeal has been filed under Sec. 374 of the Code Criminal Procedure against the Judgment and Order dated 19/20.4.1989 passed by Additional Sessions Judge, Chittorgarh in Sessions Case No. 39/1989 convicting and sentencing the appellant for the offence under Sec. 308 Indian Penal Code to undergo 2 years R.l. and a fine of Rs. 50.00, in default of payment of fine to further undergo 4 months' R.l.

(2.) The F.I.R. was lodged by injured Vijay Singh himself on 28.5.1984 alleging that he along with Kanhaiyalal, Lalchand, Murlidhar and Ramswaroop were going on a tractor carrying stones. When they reached Bakshpura, Pratap Singh passed by. Pratap Singh stopped them and directed Kalyan Singh to bring the gun. Kalyan Singh brought the gun and pointed it towards Vijay Singh. Meanshile, Kanhaiyalal got down from the tractor and caught hold of the gun while, Vijay Singh ray away from the spot. When Vijay Singh reached a distance of 50 feet, Kalyan Singh fired at him. As a result, Vijay Singh received two pellet injuries on the right arm. Thereafter, petitioner took hold of a lathi and followed Vijay Singh. The motive alleged is old enmity. The police registered an F.I.R. under Sections 341, 307 read with Sec. 34 Indian Penal Code against the appellant and Pratap Singh. Pratap Singh was acquitted vide Judgment and Order dated 18.6.1988. No appeal has been filed by the State, whereas, the appellant is convicted vide Judgment and Order dated 19/20.4.1989, which is impugned herein by the appellant. The Additional Sessions Judge while convicting the appellant, sentenced for an offence under Sec. 308 of Indian Penal Code The Court found that no offence under Sec. 307 of the Indian Penal Code was made out, as it could not be said that there was any intention to kill.

(3.) Learned Counsel for the appellant while praying for acquittal of the appellant has invited the attention of the Court to the evidence led by the prosecution including the F.S.L. report with respect to the gun recovered from the appellant as also the injury report. Upon medical examination of the injured Vijay Singh, two wounds were found on the right elbow. Both the said wounds are simple in nature. It was found that there was blackening around on the wounds. Admittedly, as per the prosecution, the said wound was on account of the firing by the gun from a distance of 50 feet i.e. the distance between the injured and the gun was 50 feet at the time of firing. If that is so, there could not have been any blackening. Thus, there is discrepancy in the medical and ocular evidence.