GULABKHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal arises out of the judgment of the learned Additional Sessions Judge, Alwar, dated April 15, 1972, by which he convicted the appellant under section 304 Part II, I. P. C. , and sentenced him to rigorous imprisonment for three years

(2.) I have heard arguments and perused the record.

(3.) THE learned counsel for the appellant submitted that there was no evidence that the rifle was issued by the Department to Galabkhan. THE emoty cartridge case was not recovered from the scene of occurrence and indeed none of the witnesses hid said that any cartridge case was even recovered from the possession of Gulabkhan. Unless the investigating officer and the attesting witnesses state that cartridge was reco-vered from Gulabkhan, it is not permissible to hold merely on the basis of the recovery memo that the empty cartridge case was recovered from the possession of Gulabkhan. As regards the answer of the accused to question No. 5 whether what Kansingh stated that be bad a gun with him, was correct, the accused replied that it was correct, the learned counsel submits that this statement cannot be read against the accused, because in reply to other question he had categorically said that he had no rifle with him, nor did he fire any rifle, nor was any rifle recovered from him. In this connection the learned counsel invited my attention to State of Gujarat vs. D. Pande (1) at para 5 wherein it has been observed that the court cannot split the statement into various parts and accept a portion and reject the rest. It has to either accept that statement as a whole or not rely on it at all.