MUKESH KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Mukesh Kumar S/o Man Singh (hereinafter referred to as 'appellant') is in appeal against the judgment dtd. 20/8/2018 passed by learned Special Judge Dacoity Effected Area, Bharatpur in Session Case No.21/2018 convicting the accused-appellant under Sec. 302, 307 IPC and 3/25 of Arms Act. Vide order of even date, the appellant was ordered to undergo sentence as under:-

(2.) The case as setup by the prosecution is that on complaint of PW-1 Chandrabhan FIR No.159/2016 was registered at Police Station Atalbandh, Bharatpur on 30/6/2016. As per the complaint, Prakash (hereinafter referred to as 'deceased') and PW-2 Hariram, father of the deceased were sitting on the shop when Mukesh Chand Jatav (hereinafter referred to as 'appellant'), Tuhiram, Ramprakash, brother-in-law of Tuhiram (sala) and Satyaprakash came to the shop armed with a country made pistol. Tuhiram caught the deceased, the appellant fired and the bullet hit the jaw of the deceased. The appellant again fired at Mahesh, but it missed and thereafter four to five rounds were fired by the appellant in the street. The appellant also shot at PW-4 Mundra (wife of the appellant) and injured her. It was stated that PW-3 Akash, PW-7 Smt. Premwati, PW-8 Rohit, PW-9 Pinki and PW-10 Saurabh witnessed the incident. The injured were taken to the hospital on 30/6/2016 and the deceased succumbed to injuries on 6/7/2016. The post-mortem was conducted on 7/7/2016 and the cause of the death was 'COMA' as a result of anti-mortem gun shot injuries on neck and face region, sufficient to cause death in ordinary course of nature. The appellant was arrested on 30/6/2016 and the arrest and personal search memo is Ex. P.17. On the disclosure of the appellant u/s 27 of the Indian Evidence Act, 1872 (for short '1872 Act') one 12 Bore, country made pistol (hereinafter referred to as 'Katta'), three live cartridges and one empty cartridge shell were recovered. After filing of challan, charges against the appellant were framed u/s 341, 323, 307, 302 IPC and 3/25 of the Arms Act.

(3.) Learned counsel for the appellant submits that the prosecution failed to prove the case beyond reasonable doubt that the appellant had killed the deceased with the recovered katta. Contention is that the recovery of katta itself is doubtful. The contention is fortified by relying upon the fact that one of the recovery witnesses turned hostile and deposition of prosecution witnesses PW-2 Hariram are to the effect that the katta and empty shell of cartridge were handed over by Tuhiram to the Police at the spot of the incident.