JUDGMENT M. Chaudhary, J.
1. This is government appeal filed on behalf of the State of U.P. from judgment and order dated 28th of October 1980 passed by IV Additional Sessions Judge Agra in sessions trial No. 472 of 1979 State v. Ghoorey Lal acquitting the accused of the charge levelled against him under Sections 302 and 307 IPC.
2. Brief facts giving rise to this appeal are that at 6:15 p.m. on 14th of March. 1979 Shiv Charan. uncle of deceased Ghoorey Lal lodged an FIR at police station Barium, District Agra situate at a distance of 4 1/2 miles from village Garhi Khanjar alleging that in the evening of 14th of March 1979 Chhittar Singh was distributing Gur at the residence of Kanchan Singh, that at about 4:15 p.m. that very evening Shiv Charan and his nephew Ghoorcy Lal son of Khacher Singh alongwith Natthi Lal. Yad Ram, Bishambhar and Brij Raj Singh were going back to their respective houses after taking Gur and as they reached near the 'baithak' of Ghoorey Lal son of Mewa Ram who,was standing there holding his licensed gun started abusing Ghoorey Lal son of Khacher Singh and fired at him with gun hitting him at his neck and causing pellet injury to Brij Raj Singh and that receiving the fatal gunshot injury Ghoorey Lal succumbed to the injury sustained by him on the spot instantaneously. Immediately injured Brij Raj Singh was sent to Civil Hospital. Barhan for treatment. He also mentioned in the FIR that he alongwith the co-villagers lifted the dead body of Ghoorey Lal on a cot and taking the dead body went to the police station. The police registered a crime against the accused under Section 302 1PC on the basis of the written report handed over by Shiv Charan at police station Barhan and made entry regarding registration of the case in GD (Exts. ka 14 & ka 15)
3. Medical examination of injured Brij Raj Singh by Dr. Govind Prasad, Medical Officer in-charge. State Dispensary. Barhan at 5:35 p.m. the same evening revealed belownoted injuries on his person:
1. A round lacerated wound 0.3 cm x 0.3 cm x 0.5 cm on right side hack 10 cms away from mid line 9 cms below lower border of scapula. Margins burnt and inverted and tattooing present in an area of 5 cms x 5 cms. No pellets palpable. Bleeding present.
2. Lacerated wound of exit 1.5 cm x 0.5 cm x 0.5 cm on right side back o.8 cm away and lateral from injury No. 1. Skin burnt and tutooing present in the area of 5 cms x 5. cms. Margins of the wound everted. No pellets palpable.
The doctor opined that injuries were caused by firearm and fresh in duration. He advised x-ray and the injuries were kept in observation.
4. Station Officer Brij Pal Singh who took up investigation of the crime in his hands drew inquest proceedings on the dead body of Ghoorey Lal, prepared the inquest report (Ext. ka 6 ) and other necessary papers ( Exts. ka 7 & ka 8) and handed over the dead body in a sealed cover alongwith necessary papers to Constable Meer Hasan and Rajvir for being taken for its post mortem. He also recorded statements of the witnesses at the police station itself. Then he went to the place of occurrence, inspected the site and prepared its site plan map (Ext kal 1). He also collected blood stained and simple earth from the scene of occurrence and prepared its memo ( Ext ka 10). Then he recorded statements of some witnesses. Next day at about 12:00 noon he arrested accused Ghoorey Lal with his licenced gun near village Tanda. He also prepared recovery memo of the licenced gun recovered from the possession of the accused ( Ext ka 12).
5. Autopsy conducted on the dead body of Ghoorey Lal by Dr. Ram Kumar Gupta, Medical Officer SNM Hospital Firozabad, District Agra on 15th of March, 1979 at 10:00 a.m. revealed belownoted ante mortem injuries:
1) Gun shot wound of entry 2.5 cm x 2.5 cm x through and through on right side neck 2 cm lateral to midline of neck front aspect.
2) Gun shot wound of exit 5 cm x 4 cm x through and through on right side back of neck 5 cm below right ear corresponding to injury No. 1 with margins everted.
On internal examination right carotid vessel found punctured. Stomach contained semi digested food material.
The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injury within one day.
6. After completing the investigation he submitted charge sheet against the accused accordingly (Ext. Ka 13).
7. After framing of charge against the accused the prosecution examined Shiv Charan (PW 1), Brij Raj Singh (PW 2) and Yad Ram (PW4) as eye witnesses of the occurrence. PW3 Dr. Govind Prasad, Medical Officer in-charge, State Dispensary Barhan, District Agra who medically examined injured Brij Pal Singh on 14th of March. 1979 at 5:35 p.m. proved the injury report (Ext. ka 3). PW5 Dr. Ram Kumar Gupta. Medical Officer SNM Hospital, Firozabad, District Agra who conducted autopsy on the dead body on Ghoorey Lal on 15th of March, 1979 at 10:00 a.m. proved the post mortem report. PW8 HM Megh Shyam who prepared check report on the basis of the written report handed over to him by Shiv Charan at police station Barhan and made entry regarding registration of the crime in GD has proved these papers (Ext. ka 14 & ka 15). PW6 Constable Meer Hasan to whom dead body of Ghoorey Lal alongwith necessary papers was handed over for its post mortem has stated the said fact. PW7 Station Officer Brij Pal Singh who after investigating the crime submitted charge sheet against the accused has proved the police papers.
8. Sri B. Rai, Ballestic Expert, Forensic Science Laboratory U.P. Lucknow was examined by the trial Court as CW 1. He experimented with the licenced gun of the accused and standard cartridges of 12 bore and stated that firearm injury sustained by Ghoorey Lal could be caused with that particular gun. Me also stated that if shot was fired from place 'C at the deceased, injured Brij Raj Singh could sustain pellet injury if he was standing in a turned position in the same line of firing (Ext Ka 11). He also stated about the possibility that firearm injury sustained by Ghoorey Lal could be caused by another firearm.
9. The accused pleaded not guilty stating that at about 3: 45 p.m. that evening he had gone to the house of Kanchan Singh; that Badan Singh, uncle of Kanchan Singh asked Bal Mukund to distribute Gur but he refused; that thereon Chhittar Singh started distributing Gur which was not relished by him and he took exception thereto; that thereon Bal Mukund took accused Ghoorey Lal aside and told him that Shiv Charan, Ghoorey Lal son of Khacher Singh, Bishambhar,Yad Ram and Natthi Lal had concealed lathis, countrymade pistol, knife and spade inside the room of Kanchan Singh and they might attack him and therefore he should go back to his house; that thereon he went to his 'baithak' situate at a short distance and took his licensed gun and as he was about to leave that place, Ghoorey Lal son of Khacher Singh armed with spade alongwith Natthi Lal with countrymade pistol, Brij Raj Singh with knife and Yad Ram and Bishambhar with lathis reached at his 'baithak' and tried to enter therein; that thereon he pointed his gun towards them in order to scare them away; that then Ghoorey Lal and Yad Ram gave spade and lathi blows to him which he took on the barrel and butt of his gun ; that then they tried to snatch his gun and in the meanwhile Natthi Lal fired at him with countrymade pistol but he had a narrow escape and pellet injury was caused to Brij Raj Singh and that in the process of scuffling the gun went off causing injury to Ghoorey Lal son of Khacher Singh and he fell down at the gate of the "baithak' and then his associates removed injured Ghoorey Lal to the pathway. He further stated that thereon he bolted his 'baithak' from inside and got his brotherin-law (sala) Thakur Das called from his tubewell and thereafter he told him about the occurrence and went to Agra with him in the Jeep and got report of the occurrence scribed by Thakur Das who got the same typed which was given by him to the SSP Agra and that then they went back to the village and that next day as he alongwith his gun was going to the police station to surrender the station officer met him on the way and arrested him.
10. The accused examined Satya Prakash Upadhyaya (DW 1), Shiv Nandan (DW 2). Ratan Pal Singh (DW 3) and Thakaur Das (DW 4) in his support. DW 1 Satya Prakash Upadhyaya Record Keeper, Police Record Room Agra deposed that since March 1979 he was working as Record Keeper in the Police Record Room and he did not find any application dated 14th of March 1979 given by accused Ghoorey Lal to the SSP Agra in the Record Room. DW 2 constable Shiv Nandan posted at police station Barhan deposed that he was posted at that police station for the last one year but no application allegedly moved by Ghoorey Lal on 14th of March 1979 was available at the police station . His statement; was recorded on 17th of November 1979. DW 3 Ratan Pal Singh, Despatch Clerk in the office of SSP Agra deposed that he had brought Despatch Register used for sending papers to the Circle Officer and in that register there was an entry dated 17th of March 1979 to the effect that a complaint given by Ghoorey Lal son of Mewa Ram was sent to Circle Officer, Atmadpur but no such paper was available in the office. DW 4 Thakur Das, brother-in-law of accused Ghoorey Lal deposed that he owned Some land at village Garhi Khanjar; that the alleged evening he was at his tubewell that his sister's son Ashok went to call him ; that then he went at the 'baithak' of Ghoorey Lal; that Ghoorey Lal told him about the incident; that then they went in the jeep to Agra where Ghoorey Lal got report of the occurrence scribed by him which was got typed ; that then Ghoorey Lal went to the office of SSP Agra and handed over the typed report there and that thereafter they went back to the village and next day Ghoorey Lal went to the police station to surrender.
11. On an appraisal of the parties' evidence the trial court disbelieved the prosecution case and evidence observing that since firearm injury caused to Ghoorey Lal was vertical and firearm injury caused to Brij Raj Singh was horizontal both could not be caused by one shot, that,CW1 B. Rai, the ballistic expert also stated likewise and that since the prosecution failed to establish as to how pellet injury was caused to Brij Raj Singh the accused was entitled to benefit of doubt. In the result, the case ended in acquittal.
12. Feeling aggrieved by, the impugned judgment the State ! preferred this appeal assailing acquittal of the accused respondent.
13. We have heard learned AGA for the State appellant and Shri P.C. Srivastava, learned counsel lor the accused respondent
14. After going through the impugned judgment and record of the case we are of the view that the findings recorded by the trial judge are perverse based on erroneous appreciation of evidence resulting in serious miscarriage of justice. Learned trial judge has laid much emphasis upon the medical inconsistency that firearm injury caused to Ghoorey Lal deceased was slantingly vertical and to Brij Raj Singh horizontal, but in our opinion there is nothing of the sort in the medical evidence. A perusal of the post mortem report goes to show! that autopsyi conducted on the dead body of Ghoorey Lal revealed antemortem gunshot woundi of entry 2.5 cm x 2.5 cm x through and through on right side neck 2 cm lateral to midline of neck front aspect having' corresponding wound of exit 5 cm x 4 cm on right side back of neck 5 cm below right ear. Therefore this injury was almost horizontal. Medical examination of injured Brij Raj Singh revealed a round lacerated wound of entry 0.3 cm x 0.3 cm x 0.5 cm on right side back 10 cm away from midline and 9 cm below lower border of scapula having a wound of exit 1.5 cm x 0.5 cm x 0.5 cm on right side back 0.8 cm away and lateral from injury No.l. Thus, this injury was also almost horizontal. Thus observation made by the trial judge that firearm injury caused to Ghoorey Lal was vertical and to that of Brij Raj Singh horizontal is wholly fallacious. Learned trial judge also observed that CW1 B. Rai, Ballistic Expert stated that both the injuries would have been caused by two shots. No doubt that CW1 B. Rai, Ballistic Expert has given the said opinion but he has also stated in his cross-examination by the prosecution that if the assailant fired from place 'C' and the person receiving pellet injury standing at place 'B' would have taken turn,on dispersal of pellets he could have received the pellet injuries if deceased and injured both would have stood in the same line of firing. A perusal of the site plan goes to show that the accused fired from in front of his "baithak' at Ghoorey Lal standing in the lane almost at the same level and at that time Brij Raj Singh was standing nearby at the Chabutara at some higher level. Looking to the size of antemortem firearm wound of exit on the body of the deceased 5 cm x 4 cm x through & through on right side back on neck evidently dispersal of pellets must have been in a considerable area and in all probability one pellet struck Brij Raj Singh standing nearby on the Chabutara at some higher level On his right side back 9 cm below lower border of scapula. Thus it can not be said that firearm injury to Ghoorey Lal, the deceased and injured Brij Raj Singh could not be caused by one shot. Learned counsel for the accused respondent also contended that Shiv Charan, nephew of the deceased himself mentioned in the written report that accused Ghoorey Lal fired at his uncle with his gun causing him Goli (bullet) injury and Brij Raj Singh also received pellet injury which goes to show that injuries received by them were caused by two different weapons. We would like to mention here that there is hardly any difference between bullet and cartridge for a layman. From 12 bore gun cartridge is fired and 12 bore cartridge always contains pellets though size of pellets may beft different. Whenever a person is assaulted with a firearm, normally it is said in common parlance that he received Goli injury. In 12 bore gun 12 bore cartridges containing pellets are used. Thus this argument advanced by the learned counsel for the accused respondent that the deceased and the injured sustained injuries from two different weapons is wholly lacking any merit.
15. Learned trial judge observed that since Shiv, Charan alongwith Brij Raj Singh. Ghoorey Lal, Yadram and Bishambhar were going by longer route it probabilized the defence version that they were going by that route intending to attack accused Ghoorey Lal. The said observation made by the learned trial judge is wholly untenable. PW1 Shiv Charan gave an explanation that they did not go by shorter route because on that route the place would have fallen where ladies and girls of the village used to celebrate the festival by singing songs and dancing. Even if it is taken to be incorrect there was nothing wrong if Shiv Charan alongwith his companions were going by the longer route as they were in leisurely mood on the occasion of Holi festival. PW 1 Shiv Charan, nephew of the deceased deposed that as they were passing from in front of the 'baithak' of Ghdorey Lal he was standing in front of his 'baithak' taking his gun and when they were passing his nephew Ghoorey Lal was going ahead and sighting him accused Ghoorey Lal started uttering abuses to him and as he asked him as to why he was abusing him on the day of festival. he fired at him with his gun which hit him on his neck, that receiving the fatal injury he fell down and Brij Raj Singh who was standing nearby at the Chabutara also received pellet injury at his back. The defence case put up by the accused that he was inside his 'baithak' and taking his gun as he was about to go, Shiv Charan and Yadram taking lathis alongwith Ghoorey Lal with spade, Brij Raj Singh with knife and Natthi Lal with countrymade pistol tried to enter his "baithak"; that Yadram and Ghoorey Lal gave lathi and spade blows to him which he took at the butt and barrel of his gun, that thereon they tried to snatch his gun and in the meanwhile Nathi Lal fired at him with countrymade pistol but he had a narrow escape and Brij Raj Singh received pellet injury; that in the course of scuffling the gun went off and the shot hit Ghoorey Lal that receiving the firearm injury he fell down at the gate of his 'baithak' and that then all of them removed him on the pathway and he closed the channel of his 'baithak' from inside is a cock and bull story too dressed up and artificial to merit credence because of threefold reasons: (i) If Natthi Lal would have fired with countrymade pistol at accused Ghoorey Lal in the situation as alleged by the latter atleast 2-3 persons would have received pellet injuries which did not happen, (ii) the defence contention that the accused took lathi and spade blows at the butt of his gun and there is a cut mark on the butt of the gun is too difficult to swallow. The blade of a spade is always of considerable length and if Ghoorey Lal, nephew of Shiv Charan would have given a spade blow to the accused who was holding the gun with his hands pointing at the assailants as alleged by the defence, in all probability he must have received some injury on either of his hands and (iii) If in the course of scuffling the gun would have discharged accidentally, fatal injury to Ghoorey Lal would have never been caused on his neck. A perusal of the postmortem report goes to show that fatal injury caused to Ghoorey Lal could be caused only when aimed and fired at its target. Thus the defence theory fabricated by the accused holds no water and is repelled.
16. It is not disputed that some bad blood existed between both the parties as admittedly revenue litigation was going between Ram Devi, daughter of Sri Ram on one hand and the legal representatives of Daya Ram ancestor of the deceased on the other and in that litigation accused Ghoorey Lal appeared as a witness for Ram Devi. It is well established that in the case of direct evidence motive is not of any significance. Still in the instant case admittedly occurrence took place on the festival of Holi the day when people celebrate the festival with sprinkling of colours on each other and that day in the evening Gur was used to be distributed in the village and at about 4:00 p.m. at the 'baithak' of Kanchan Singh Gur was to be distributed and Badan Singh, uncle of Kanchan Singh and grand father of Brij Raj Singh asked Bal Mukund to distribute the Gur but he refused and that thereon Chhittar Singh started distributing Gur which was not relished by accused Ghoorey Lal who was already present there and he took exception thereto. In the said backdrop, the sequence of events constituted sufficient motive on his part for the assault. Otherwise too, the motive is not sine qua non for success of the case like present one in which there are eye witnesses of the occurrence including the injured witness. Despite searching and rambling cross-examination, the core of their testimony could not be dislodged that the shot was fired by the accused intentionally to kill the deceased and a pellet hit Brij Raj Singh too.
17. On carefully scanning the evidence on record which is above reproach suspicion, we are of the view that the trial judge committed grave error in doubting the prosecution evidence giving undue importance to matters of trivial and insignificant nature. Since the findings recorded by the trial court are perverse based on erroneous appreciation of evidence resulting in serious miscarriage of justice the impugned judgment can not be maintained in law.
18. For the foregoing reasons, the appeal is allowed and the impugned judgment acquitting accused Ghoorey Lal son of Mewa Ram of the charge levelled against him is hereby set aside. He is hereby convicted under Section 302 IPC for committing the murder of Ghoorey Lal son of Kacher Singh and under Section 324 IPC for voluntarily causing hurt to Brij Raj Singh by means of firearm and sentenced to imprisonment for life and six months' rigorous imprisonment respectively thereunder. Both the sentences shall run concurrently. He is on bail. Chief Judicial Magistrate, Agra is directed to get accused Ghoorey Lal son of Mewa Ram arrested and lodged in jail to serve out the sentences imposed upon him.
19. Let judgment be certified to the Court below. Record of the case be transmitted to the lower Court immediately for necessary compliance under intimation to this Court within two months.