TALATI, J. -
(1.) ALL the three appeals are directed against the judgment rendered by learned Additional Sessions Judge, Rajkot at Gondal on 30th August, 1980 in Sessions Case No. 15/80. The facts which gave rise to these appeals may be briefly stated as under:
(2.) THE incident occurred at village Movia, Taluka Gondal, District Rajkot on 20th October, 1979. On a public road which is of width of about 20 ft. some boys were enjoying by igniting crackers. The Diwali festival was nearby. On both the sides of that road there are shops and there is also a building where on the ground -floor there is State Bank of Saurashtra and if one climbs about 17 steps, there is office of a Co -operative Society. There is a verandah immediately after the stair -case and the prosecution case is that because of the crackers the persons on the first floor thought that that might cause damage to the property and the appellant, who was original accused No. 1, came out and stood in the verandah. Accused No. 2 went down stairs in the chawk and tried to persuade the boys which resulted in a small scuffle. At that time according to the prosecution case, accused No. 1 took out pistol and fired three shots. The first shot did not hit anyone. However by the second and the third shots, P.W. 2 Jasmat Exhibit 11 was injured and so also one Jagdish died. As a result one Hansraj P.W. 1 Exhibit 10 filed a complaint. That led to the investigation which was carried on by P.S.I. Raval Exhibit 52. He went to the place of scene of offence, prepared panchnama of the place of scene of offence and recorded several statements. Ultimately the house of accused No. 1 was searched and one pistol -Art. 11, was recovered and the panchnama Exhibit 26 was prepared. The pistol which was recovered was sent to Director of Forensic Laboratory for opinion. Ultimately as a result of the investigation four persons were arrested including the appellant and charge -sheet was filed against the four persons. In due course, the case came to be committed to the court of Sessions and at the Sessions trial, prosecution examined 26 witnesses. The accused denied the guilt and in defence examined Dr. Bipin Shah, to establish that accused No. 1 had a fracture on the right fore -arm and the hand movement of accused No. 1 was not possible. According to him though it was possible for accused No. 1 to hold a pistol he was not in a position to raise his hand upward or in a straight line because of the plaster. That was the position from 16 -10 -1979 and therefore the defence case was that so far as accused No. 1 is concerned, it was impossible that he will be able to fire with the help of a pistol. Ultimately after appreciating all the evidence on record, the learned Additional Sessions Judge, Gondal, acquitted accused Nos. 2, 3 and 4 and convicted accused No. 1 for an offence under Section 307 I.P.C. and also for an offence under Section 25 of the Arms Act. Accused No. 1 was sentenced to suffer R.I. for a period of four years and to pay a fine of Rs. 500/ - i.d. to suffer R.I. for 3 months for offence under Section 307 I.P.C. For an offence under Section 25 of the Arms Act, he was sentenced to suffer R.I. for a period of three months. Accused No. 1 filed Criminal Appeal No. 1000/80 challenging his conviction and sentence. The State filed Criminal Appeal No. 1289/80 challenging the acquittal of accused No. 1 for an offence under Section 302 I.P.C. The State also filed Criminal Appeal No. 1287/80 for enhancement of sentence in case the case was held proved not under Section 302 but under Section 307 I.P.C. According to State sentence inflicted under Section 307 I.P.C. was not adequate. In this case what we feel is that the prosecution has totally failed to establish that the appellant accused No. 1 fired a firearm from the verandah of the upper floor. The complainant P.W. 1 Hansraj Exhibit 10 did not support the prosecution and he only stated that the firing took place from the verandah but he did not name accused No. 1, while Jasmat Exhibit 11, Durlabhji Premji P.W. 4, Exhibit 14, Ravji Bhuta P.W. 5 Exhibit 15, Ranchhod Dudabhai P.W. 6, Exhibit 16, Vashram Ramji P.W. 7, Exhibit 17 and Girdharlal Bachubhai, P.W. 10 Exhibit 20 named accused No. 1. They all stated that it was accused No. 1 who fired from the verandah and that each had seen him. Though they support the prosecution to this extent they were all contradicted on other aspects of the case and they thereafter when cross -examined by the defence gave entirely different version. Some of them have tried to support the defence saying that accused No. 2 was encircled and accused No. 1 was shouting that accused No. 2 should be released and thereafter he had fired suggesting right of private defence to accused No. 1. Some of them have in cross -examination entirely changed their story and stated that they had not seen accused No. 1. Thus they gave three different versions one version was in examination in chief; second in the cross -examination of the Public Prosecutor in the sense that the contradictions on various other points were brought on record and the third version which was entirely different came out in the cross -examination of the defence. We are not impressed by the story that accused No. 2 was encircled and that there was any right of private defence. There is not even a scratch or bruise to accused No. 2. It may be suggested that one may not have a scratch or a bruise and yet one may apprehend grievous hurt and either himself or any other person apprehending grievous hurt will have a right of private defence of a human being. But in this particular case, it does not appear to be so. However, that aspect is also not very important because ultimately these are all faint suggestions and the witnesses are self -contradictory, unworthy and not reliable. They cannot be believed for this version or that version. Their story is so improbable that no reliance can be placed whatsoever on their testimony. Their examination -in -chief cannot be accepted as true nor their cross -examination. The whole case of the prosecution entirely hangs upon a thin thread and that thread is whether accused No. 1 ever fired from the verandah. Now on this aspect there is general support in the sense that every one stated that the firing was from the verandah. Some did not name accused No. 1; some stated that he fired because of right of private defence and some stated that we did not identify the accused. But no one stated that he was someone else who fired. But the real crux of the problem is whether the firing could have taken place in this particular case from the verandah. It may be stated that the distance as a crow flies from the place where the accused no. 1 was standing in the verandah and where Jasmat or Jagdish, who died, was in any case not less than 20 to 25 ft. One more thing which is required to be stated is that so far as the pistol Art. 11 is concerned, there is no conclusive evidence that it was that firearm which was used at the time of the incident. The pistol which was recovered was one 22 Astra pistol bearing No. 132401 (described as Exhibit A by the Forensic Laboratory). The two bullets which were recovered - one from the dead body of Jagdish and other from the body of Jasmat were given Exhibit B and G by the Forensic Laboratory and the result of the examination was as under:
"Ex. A is a 22 Astra Pistol. The exhibit was jammed when received in the laboratory. After cleaning it was found to be in working condition. Four 22" rimfire cartridges (from the laboratory stock) were successfully test fired from Exhibit in the laboratory. Residues of fired ammunition -nitrite could be detected in the barrel washing (washing taken prior to the laboratory test firing) of this exhibit, thereby showing that Exhibit A has been used for firing prior to its receipt in the laboratory. No rifling marks were found present in the barrel and it appears to be worn out. The bore diameter of Exhibit A was measured and found to be 26" (The bore diameter of standard 22 Astra pistol is 21"). The effective range of Exhibit A was measured and was found within a range of 10 feet. Exhibit B is fired 22" short bullet. Exhibit C is a deformed fired 22 short bullet. No rifling marks could be seen on those bullets. There were no rifling marks on the test fired bullets, test fired from Exhibit A in the laboratory. Hence it appears that Exhibit B and Exhibit C could have been fired from Exhibit A such bullets can be fired from Exhibit A. Since no characteristic rifling marks were present on Exhibit B, Exhibit G and the test bullets no comparison could be carried out and hence no conclusive opinion can be given for the query whether Exhibits B and C have been fired from Exhibit A or not."
Now this finding would only lead to one result that if this pistol was used the effective range was only 10 feet. Further the opinion was not conclusive with regard to the fact as to whether Exhibits B and G was fired from that pistol. Now the prosecution case is that the firing took place from a distance of 20 to 25 ft. Therefore, the prosecution cannot rely on the evidence of the Forensic Laboratory and suggest that this pistol was ever used (i) because that evidence is not conclusive and (ii) the pistol is such which could be used effectively within a range of 10 ft. only. If therefore from the verandah firing took place from this pistol no damage would have been caused. Now, therefore, though the prosecution could get possession of this pistol from the house of the accused No. 1 they could never successfully establish other aspect of the case.
(3.) NOW therefore what remains is the evidence of the witnesses that accused No. 1 fired from the verandah which was at a distance of 20 to 25 ft. Here again there is a difficulty. P.W. 20 Dr. Kirit Ambalal Mithawala, Exhibit 46 who examined Jasmat found that there was a punctured wound and according to him the entrance of the bullet must be from a distance of about 6 to 8 inches, meaning thereby less than one foot. In cross -examination he stated that though he was not an expert on the firearm, he was an expert on firearm injuries. He also clearly stated that if a person was standing on the ota of 5 ft. height and he fired a shot on a person who is standing in front of him, injury would not be possible because in that case the degree would be 30. Now here the prosecution case is that the person who standing in a verandah and to reach that verandah one has to climb almost 17 steps. Now, therefore, it is clear from the evidence of Dr. Kirit Exhibit 46 that from the verandah if firing was done such an injury to Jasmat was not possible; it was only possible if the bullet was fired from a distance of less than a foot. Another doctor, Dr. Ajmera Exhibit 43, who had performed surgery on Jasmat and who took out the bullet from his abdomen wall is examined and he is not asked as to from what distance the firing would have taken place. This doctor also had performed post -mortem examination on deceased Jagdish. He had also taken out the bullet from the dead body and he gave opinion that the injuries were ante -mortem and the cause of death was due to cardiac respiratory failure as a result of injury to brain and its vital centres on account of bullet injury. He clearly in his cross -examination stated that the charring and blackening around injury No. 5 was visible. According to him blackening and charring would be found if the revolver or pistol is discharged within the radius of 2 ft. He however clarified that charring and blackening would be there if the revolver shot is fired within 5 ft. Now, therefore, even the injury to Jagdish was possible only if the bullet was fired within a range of five ft. only. That is not the prosecution case. Charring and blackening would clearly suggest that the bullet was fired from a very short distance. Well -known author N. J. Modi in his Medical Jurisprudence and Toxicology,20th Edition, Page 227, in regard to distance of the firearm stated as under:
"If a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches round the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tabooed with unburnt grains of gunpowder or smokeless propellent powder. The adjacent hair is singed, and the clothes covering the part are burnt by the flame. If the powder is smokeless there may be a greyish or white deposit on the skin round the wound. If the area is photographed by infra red light a smoke round the wound may be clearly noticed. Blackening is found, if a firearm like shotgun is discharged from a distance of not more than 3 ft. and a revolver or pistol discharged within about 2 ft."
Under these circumstances it clearly appears that the evidence of the eyewitnesses is totally inconsistent with the medical evidence on record. Under these circumstances, can it be ever suggested that the prosecution could beyond reasonable doubt establish that the appellant fired from the pistol which is found from his house or from any other pistol from a verandah which, in any case, is at a distance of about 20 ft. The answer must be clearly in the negative.
We are conscious of the fact that the opinion of the Forensic Laboratory on one side relating to the aspect as to whether the bullets were fired from the pistol seized and the opinion of the medical officer that the firearm must have been used from a distance of not more than five feet, in any case, is after all an opinion evidence. The range of the pistol found, according to the Forensic Laboratory, is 10 ft. It is therefore clear that from this particular pistol if the firing was from the verandah, it was not done. Nobody has identified the pistol to be the same by which firing took place. But everyone is unanimous that the firing was by a pistol and from the verandah. We have already stated that the distance is 20 ft. in any case. The question, therefore, which is first required to be considered, is whether how much weight should be given to opinion evidence. Normally if the evidence of the eye -witnesses inspires confidence and the evidence is reliable, trustworthy, normally opinion evidence is required to be not given much weight. Opinion evidence in fact would have been inadmissible but for Section 45 of the Indian Evidence Act, which runs as under:
"When the court has to form an opinion on a point of foreign law, or of science or act, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts."
Now here it is a pure question of science. Now, therefore, the opinion of the Forensic Laboratory or the opinion of the medical officer is an opinion which is a relevant fact. Now when the court has to form an opinion the opinion of an expert is relevant that is where Section 45 leads us. Normally no conviction can be based on the evidence which is called opinion evidence unless it is corroborated in material particulars. It is held in many cases that it is hazardous to act on the opinion evidence unless it is corroborated. Now therefore in cases where the evidence of the eye -witnesses is found trustworthy and the opinion evidence is contradictory normal rule would be to throw away the opinion evidence, because the court does not require the opinion because the evidence otherwise is totally sufficient. When that evidence is not required by the court it does not become a relevant fact. Now therefore in this particular case it could have been suggested to us, and fairly it is not suggested, that here the evidence of the eye -witnesses is such where implicit reliance could be placed. On the contrary what appears is that absolutely no reliance can be placed on the evidence of eye -witnesses. In such a situation to test the veracity of the eyewitnesses in question, it is necessary to look into opinion evidence of an expert and, therefore, we have to consider the opinion evidence of Forensic Laboratory and also of medical officer and what we find is that the firearm which was used in this particular case was used in any case from a distance which could never be more than five feet and, therefore, no firing took place from the verandah. If the firing took place from verandah, the question of implicating accused No. 1 does not arise. We may here refer to Third Revised Edition, 1956 written by Major Sir Gerald Burrard, the book with the tile "The Identification of Firearms and Forensic Ballistics". On page 58 the quotation is as under:
"Blackening: This effect is the result of the deposit from the dirty powder gases and is really very akin to scorching, the blackening range beginning where the scorching range ends. Blackening is not affected by a wet surface in quite the same way as scorching, although it can usually be removed very easily with a wet sponge, or rag. For this reason the absence of blackening round the wound in a body which had been in the rain for some time might be explained that the rain had washed it away, a point which should be remembered. The blackening range is naturally affected by the weight of the powder charge in exactly the same way as the scorching range, that is the bigger the charge the greater the range. But the effects of pressure and the type of powder are different. A low pressure means less complete combustion than a high pressure, and so the gases resulting from a low -pressure round will be more likely to make a dirty deposit than those from a high -pressure round. Similarly the gases from the majority of nitrocellulose powders are likely to be somewhat dirtier than those from a nitroglycerine powder. But as in. scorching the range is really so close that for all practical purposes these niceties may be ignored, although it is as well that they should be understood. Blackening with a high -power rifle, such as a service rifle, can occur upto about 9 inches, and with a revolver or pistol upto about 6 inches."
On page 73, the same author has stated as under:
"If neither the gun nor any 'crime' cartridges nor fired cases are available the range of the fatal shot can only be estimated. It may be assumed for all practical purposes that if the diameter of the wound is an inch, or less, then the distance of the shot was 18 inches or under, irrespective of the gauge of the shot -gun or the degree of choke. Upto 2 feet there is very little difference in the spread between guns of various gauges and different chokes, the hole at this distance being slightly over an inch in diameter. At 3 feet the hole is nearly 11 inches in diameter, and the difference between the two extremes of boring, true cylinder and full choke, begins to be evident. At 6 feet the hole from a true cylinder would be nearly twice as big in diameter as that from a full choke."
Now in this particular case P.W. 20, Dr. Kirit A. Mithawala, Exhibit 46 stated that the diameter of the wound in case of Jasmat Harji was 7 mm. meaning thereby it was 7cm. while Dr. Ajmera Exhibit 43 in regard to deceased Jagdish stated that the size of the punctured wound injury No. 5 in question was 1/4" in diameter which blackish charring of peripheral skin and subcutaneous tissue in an area about 3/4" diameter. It is therefore clear that the distance in any case would be less than 5 ft. ;