Barin Ghosh, C.J. -
(1.) ALL these Appeals are against the selfsame judgment and, accordingly, are dealt with together. By the judgment under Appeals, Neeraj has been convicted for offences punishable under Section 302 of the Indian Penal Code as well as Section 25 of the Arms Act. Remaining appellants have been convicted for offence punishable under Section 307 of IPC. According to the First Information Report lodged by the father of the deceased, namely, Gyan Singh (PW1), 13 appellants, each armed with country made pistol, fired. It was stated that Neeraj fired upon the deceased. It was stated that Ravindra fired upon Ramesh (PW8), who received a bullet injury. It was stated that Naveen fired upon Abhimanyu and, in consequence thereof, Abhimanyu received pellet injuries. It was stated that Jasveer, Harendra and Rajveer fired upon Vijay Pal, who received pellet injuries. It was stated that, in addition to that, Pinkku, Ashish, Satbir, Sushil, Kunwar Pal, Dheer Singh and Chandra Pal were also armed with country made pistols and fired upon, but did not say that such fire caused any injury to anyone. In course of investigation, at the pointing of Neeraj, a country made pistol of .315 bore was recovered. The dead body of the victim was sent for post mortem, which was conducted by Dr. K.K. Karoli (PW7), who reported that the cause of death was ante mortem bullet injury. He reported that a bullet was found embedded in the dead body of the deceased. The prosecution case was that the deceased was making an illegal construction on a public road, that infuriated the appellants and the appellants retaliated with armed assault in the manner described above. The injured persons were medically checked up by Dr. S.K. Verma (PW12). The bullet recovered from the dead body was a .315 bullet. The country made pistol recovered at the pointing of Neeraj was a .315 pistol. They were not sent for ballistic examination. According to the prosecution case, five empty cartridges of .315 bore were recovered from the place of incident. Those were kept in a seal and produced before the Court in the seal itself. When, however, the seal was removed, it transpired that there are seven empty cartridges of .315 bore. The Investigating Officer, namely, PW10 Ajay Chauhan did not make even an attempt to give any explanation in that regard. PW1, PW3, PW5 and PW8, according to the prosecution, were witnesses to the incident. Each of them, except PW8, deposed in the manner as was indicated in the First Information Report and, in particular, that Neeraj fired upon the victim, which caused the death of the victim. One of the injured witnesses, namely, Ramesh (PW8), brother of the victim, did not support the prosecution case. The other injured witness, namely, Vijay Pal (PW5), however, supported the prosecution story. Believing the oral testimony of those prosecution witnesses, the Court below has convicted the appellants.
(2.) IN the present Appeals, appellants are contending that it is the case of the prosecution that Neeraj fired upon the victim from a .315 pistol, which caused the death of the victim. It is being contended by the appellants that a .315 bullet was embedded in the dead body of the victim. Appellants are further contending that a .315 country made pistol was recovered from Neeraj. It is their contention that in relation to the charge for an offence under Section 302 of IPC that was and is the consistent case of the prosecution. It was contended that if that be so and, in fact, Neeraj had fired from the recovered .315 country made pistol, which caused the death of the victim, why not that recovered .315 country made pistol and the bullet recovered from the dead body were sent for ballistic examination. The answer to that, it was submitted, would be that the prosecution knew that the ballistic examination would reveal that they are totally disconnected. It is being contended that in the background of that conduct, one is required to take into account the oral testimony of PW1, PW3 and PW5, who are alleged eyewitnesses. It was submitted that the case of the said prosecution witnesses is that in connection with an illegal construction of a wall on a public path, appellants had retaliated in the manner they deposed before the Court. It was submitted that how the said construction would adversely affect the appellants has not come in evidence. It was contended that while a bullet embedded in the dead body was recovered, which turned out to be a .315 bullet and a .315 country made pistol was recovered from Neeraj, despite the consistent case of the prosecution that it was Neeraj, who fired upon the victim, which caused the death, the recovered country made pistol and the recovered bullet were not sent for ballistic matching and, at the same time, no other weapon of any nature was recovered from any other appellants or at their instance. It was contended that five empty cartridges of .315 bullets were recovered, while seven were produced in the Court, but all of them were pertaining to .315 bullets and no cartridge capable of firing pellets was found, while the injured witnesses, who deposed, received only pellet injuries. It was submitted that in that background, the Court below erred in convicting the appellants by placing reliance upon the oral evidence given by PW1, PW3 and PW5. We are of the view that there is substance in the contention of the appellants that, in the event, the recovered .315 country made pistol and the embedded .315 bullet had been sent for matching, there was possibility of showing that the same did not match and, therefore, they were not sent for matching. Neeraj has, therefore, been able to make out a good case of giving benefit of doubt to him. In the event, evidence given by PW1, PW3 and PW5 are not acceptable in relation to Neeraj, their evidence pertaining to other appellants causing injuries to PW3 and PW8 becomes doubtful. So far as PW8 is concerned, he held out that those injuries were not caused by the appellants. So far as PW1, PW3 and PW5 are concerned, they held out that such injuries were caused to PW5. While empty cartridges pertaining to .315 bullets were found, five in number though seven were produced in Court, no empty cartridge pertaining to pellets was found at the place of the incident. Therefore, it appears to us that the Court below blindly relied upon the oral testimony of the prosecution witnesses and did not even bother to weigh them and find out, whether it is safe to accept their evidence for the purpose of convicting the appellants.
(3.) WE , accordingly, interfere and set aside the judgment under Appeals insofar as the same convicted the appellants for offences punishable under Sections 302 and 307 of IPC. Those appeals are allowed. Consequentially, sentences are quashed.;