(Per : HONOURABLE MR.JUSTICE A.L.DAVE)
1. The appellant challenges his conviction rendered by Sessions Court, Palanpur in Sessions Case No.7 of 2004 for the offence punishable under Section 302 of the Indian Penal Code and under Section 30 of the Indian Arms Act and under Section 135 of the Bombay Police Act. The appellant came to be sentenced to undergo imprisonment for life with a fine of Rs.10,000/-, in default to undergo SI for six months, for the offence punishable under Section 302 of the IPC. He was awarded imprisonment for a period of six months with a fine of Rs.500/-, in default to undergo SI for one month, for offence punishable under Section 30 of the Arms Act. The appellant was also awarded imprisonment for a period of one month for the offence punishable under Section 135 of the Bombay Police Act. The trial Court ordered that, if the fine is paid by the accused, the amount of Rs.10,000/- shall be paid to the complainant - Induben Harjendersing Kang by way of compensation and hence this appeal.
2. The prosecution case in brief is that the appellant is staying at Indira Colonay, Ambaji, Tal. Danta of Banaskantha District with his son, wife and three grandchildren. The appellant was formally working with Army and after retirement, he had settled at Ambaji. He owned a licenced 12 bore gun. The appellant wanted to dispose of his house at Ambaji, to which his son and grandson opposed, which resulted into a family dispute. It is further a case of prosecution that the appellant on 19/08/2003 at about 06:30 p.m., committed murder of his son Harjindersing and his grandson-Ravi by gunshots from his 12 bore gun. This incident occurred on the ota of his house and in the house the appellant allegedly fired a shot at his grandson first, who was sitting on the ota, and then he rushed into the house and fired gunshot at his son - Harjindersing. Both of them succumbed to the injuries. The gunshot on Harjindersing was seen by his wife - Induben. After causing death of the two victims, the appellant fled away from the place. He left behind the gun at the place of incident, which was seized by the Police and it was found that it was a licensed gun owned by the appellant. It was seized and sent to FSL for ballistic expert's report.
2.1 The incident was reported to Ambaji Police Station, on basis of which, offence was registered and investigated. The Police having found sufficient material, filed charge-sheet in the Court of learned JMFC, Danta, who in turn, committed to the Court of Sessions, which came to be registered as Sessions Case No.7 of 2004. Charge was framed against the accused at Exh.16 to which he pleaded not guilty and came to be tried. The trial Court found that the prosecution was successful in proving the charges against the appellant and recorded his conviction and awarded the sentence, as stated herein above.
3. The prosecution has examined number of witnesses, but out of them, first informant - Induben - widow of Harjindersing Exh.47, Prasannjit Exh.49 and Ramanlal Barot Exh.54 are important and relevant. FIR is at Exh.63. The postmortem notes are at Exh.22 and
26.
4. It is clear from the medical evidence that both the death occurred because of gunshots. The injuries were on vital parts of bodies and as such, there is no dispute that both Harjindersing and Ravi died a homicidal death.
5. When the incident occurred, deceased - Ravi was on Ota. Suddenly, a sound of gunshot was heard by PW No.3 - Induben (Exh.47), who was sleeping in the house, she woke up her husband to find out as to what had happened. Just around that time, the appellant pushed the door open and entered the house. Virtually, stepped over the witness - Induben and then fired a gunshot at deceased - Harjindersing. Thereafter, he left the place. This was seen by Induben. Witness - Prasannajit was also in the house, who states that when he heard gunshot, he woke up and then he saw his father - Harjinder dead on the matress.
6. Learned Advocate Mr.Pathak for the appellant submitted that evidence of Prasannajit and first informant - Harjindersing is not consistent. There are discrepancies in their evidence which would render their evidence doubtful. These aspects have been ignored by the trial Court. Mr.Pathak submitted that according to Prasannajit when his grandfather came into the room, he had just waked up hearing a gunshot and then his grandfather ran away. The mother was preparing tea in the kitchen.
7. Against this, evidence of Induben was that she was asleep with her husband and children. She heard sound and woke up her husband by saying that it was a sound of gunshot. While she was saying her husband about the gunshot sound, her father-in-law pushed the door open, stepped over her and then fired a gunshot on the left side of head of her husband. Mr.Pathak submitted that actually gunshot was the result of an accident, because according to the defence, the second shot which hit Harjindersing was a result of scuffle between Harjindersing and appellant, as Harjindersing had earlier also fired one shot on Ravi, who died because of the gunshot injury. Mr.Pathak submitted that looking to the inconsistencies in evidence of Induben and Prasannjit, benefit of doubt must be given to the accused. Mr.Pathak submitted that there is every chance that the appellant is sought to be turned down to cover up the misdeed of others.
8. Learned APP on the other hand submitted that there is hardly any discrepancy or inconsistency in the evidence led by the prosecution. Mr.Dabhi submitted that undisputedly the gun is owned by the appellant and he has a licence therefor. Defence fails to explain as to how the gun got into the hands of Harjindersing to enable him to shot at his son
- Ravi. So far as main occurrence is concerned, the evidence is consistent and therefore, it cannot be discarded. He relied upon a decision of Hon'ble Apex Court in case of ' State of U.P. Vs. Anil Singh reported in AIR 1988 SC 1998'.
8.1 Mr.Dabhi submitted further that conduct of the accused is also required to be seen. If the incident had occurred in the manner in which it is claimed to have occurred, there was no need for him to flee from the place of incident and, therefore, the trial Court was justified in recording conviction.
9. We have examined record and proceedings in context of rival submissions.
10. We find that there have been some inconsistencies in the evidence of Induben and Prassanjit, but they do not touch the incident in main. It is very evident from the evidence of Induben (Exh.47) that she was sleeping in the house alongwith her husband, daughter and younger son-Prassanjit. Her elder son had gone down to open the shop. Then she heard a sound of gunshot. She, therefore, tried to wake up her husband but before he could get up the appellant rushed into the house, stepped over Induben and then fired a gunshot on her husband - Harjindersing, as a result of which, he died. The appellant, then ran away. Thus, the appellant causing gunshot injury to the deceased
- Harjindersing resulting into his death, was seen by Induben. She is sought to be falsified by the defence by relying upon the evidence of Prassanjit who says that he heard a gunshot and woke up and found his father - Harjindersing, who was done to death by a gunshot. He found that his grandfather i.e. the accused - appellant was standing there with his gun. The bullet had hit his father on head. He also found that his mother was preparing tea and she suddenly caught hold of hand of the appellant. This she did because the appellant tried to beat her. Thereafter, he and his mother pushed out the appellant and raised shouts. Hearing shouts neighbours came. The gun of the grandfather - appellant had fallen down. Prassanjit's evidence is inconsistant with Induben's evidence only on the aspect of the position of Induben as to whether she was on the bed or she was in the kitchen, when appellant rushed into house. But the two depositions are consistent so far as they relate to the appellant coming into the house with gun and fired a shot at the deceased - Harjindersing causing his death and there is no reason to disbelieve this version.
11. So far as death of Ravi is concerned, it is not the case of the appellant that his gun was taken away by someone prior to the incident or that he had lent his son or to someone. It can therefore be inferred that the gun was used by him. It is incumbent upon the defence to indicate that the licenced gun was not in his possession at the relevant time, otherwise, under the law the licnece holder only can possess a fire arm.
12. The inconsistency about position of the mother, whether she was at bed or in kitchen is of no significance when the main story remains consistent about the appellant having fired a gunshot.
13. Witness
- Ramanlal Barot (Exh.54) initially poses to be an eye-witness, but during cross-examination he admits that he had not seen the appellant firing gun at any of the victims.
14. The overall picture that emerges from this evidence is that Induben is the witness who saw the appellant firing gun at Harjindersing to which he succumbed. Just before that, the appellant was in possession of the gun which is used against Ravi. Both these gun injuries caused death of both Harjindersing as well as Ravi. The appellant is the licence holder and occupant of the gun which was used for causing death of these two persons as can be seen from the FSL report. After the incident, the appellant fled away from the place of incident. Last but not the least, the appellant has failed to explain that he was not in possession but somebody else was in possession of the gun. The defence plea that evidence of Induben and Prassanajit could not be believed, cannot be accepted. The plea that there was a dispute between Ravi and Harjindersing does not appeal to us much, because there is no material to reflect that a dispute, as suggested during cross-examination of Induben is not grave enough to prompt Harjinder to cause death of his own son. The appellant's conduct causes adverse to his interest. If his son died accidentally in a scuffle, there was no need for him to escape from the place of incident.
15. We also find that the report from ballistic expert's certifies that pallets / bullets that were found from the dead bodies of deceased, were fired from the gun owned by and licenced to the appellant.
16. In our opinion, the trial Court was justified in recording conviction of the appellant. The appeal, therefore, must fail and stands dismissed by confirming the judgment and order of conviction and sentence rendered by the trial Court.
(A L DAVE, J.) (A J DESAI, J.) sompura Top