JAIN, J - (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. The broad facts of the prosecution case are that a marriage party was returning from Palav on its way back to Alipur in truck No. P. N U. 1075 on the night intervening the 23rd and 24th May, 1968. Two employees, namely, Gulabkhan and Kansingh (P. W. 2), of the Commercial Taxes Department, who were posted at Shah-jahanpur check post, signaled the truck to stop, but the signal was not heeded and thereupon Gulabkhan opened fire with 303 rifle. The bullet pierced through the body of the truck and killed one of the members of the marriage party, namely, Rambhajan. The medical evidence was that Rambhajan had one gun shot entry wound near the spine 3* above the hip level and two gun shot exit wounds in the left axillary line 1/4" apart from each other 3' above the hip The death of Rambhajan was due to rupture of small intestine, large intestine and left kidney. Four metallic pieces were recovered from the abdominal cavity. The police recovered the rifle and empty cartridge case from the possession of Gulabkhan vide memo Ex. P/7. The rifle is numbered 29596. The motbirs' Premchand Sharma (P. W. 9) and Phoolchand (P. W. 12) are the wit-nesses of the seizure memo. Head constable Ramsingh (P. W. 15) prepared the seizure memo Ex. P/7. None of these witnesses has said that empty cartridge case was also seized in their presence. It appears further that constable Chhaganlal (P. W. 13) had taken the rifle and the empty cartridge case to saugar. Shri C. D. Gandhe (P. W. 16) is the ballistic expert, who examined the rifle Art 3 and the empty cartridge case Art. 4. His statement is that firing pin impressions on test cartridges were compared with firing pin impressions on Art. 4 with positive results. As regards the metallic pieces which were recovered from the body of the deceased Rambhajan, the witness stated that no striatums could be detected on any of these pieces on miscrosco-pical examination. The empty cartridge Art. 4 was fired from the. 303 rifle Art. 3. The six metallic pieces Art. 5 could have formed part of 303 cartridge bullet, though it was not possible to say that these pieces were in fact the components of the bullet which was fired out of the cartridge Art 4. Thus, it was proved that Rambhajan died on account of a bullet injury caused by a 303 rifle. Kansingh (P. W. 2), who was present at the time the occurrence is alleged to have taken place, deposed that he and Gulabkhan were posted on the check post Sahajahanpur to detain trucks. Gulabkhan had a rifle with him and he had no weapon with him. At about mid night, when a truck came near Sahajahanpur village, he gave a signal to the truck to stop. The truck did not stop. However, it had to halt on account of the stones by which the 'kachha' way was blocked. He demanded the papers of the vehicle, but he was beaten and fell unconscious. He regained consciousness in the hospital at Narnaul. He was declared hostile by the prosecution. Hetram (P. W. 3), Balbir, (P. W. 4), Chunnilal (P. W. 5), Jaidayal (P. W. 6) and Sultan (P. W. 8), who were members of the marriage party travelling in the truck, have deposed that they had caught hold of Kansingh on the spot and Kansingh told them that the other man who fired at the truck was Gulabkhan. Meghsingh (P. W. 7) was the driver of the truck. He stated that the injured was taken to Bardod, then to Nangal Chaudhary and then to Narnaul. Ashwani Kumar (P. W. 10) is the Commercial Taxes Officer, was has proved an entry in the register of arms and ammunition of Flying Squad during the month of October. According to this entry the aforesaid rifle was issued to Padamsingh, but the witness could not say how the rifle came in possession of Gulabkhan. Premchand Sharma (P. W. 9), who was Assistant Commercial Taxes Officer, posted at the check post of Shahajahanpur did state that the aforesaid rifle was taken from the possession of Gulabkhan, but he could not say whether there was any entry in the relevant register regarding issue of the rifle to Gulabkhan. The learned trial Judge came to "an irresistible" conclusion that the rifle remained in the possession of Gulabkhan. Though there was no evidence to show how the weapon was handed over to Gulabkhan, but the learned trial judge was of the view that it would not weaken the prosecution in so far as the rifle was seized from the accused. He had no hesitation in saying that the prosecution had proved beyond any manner of doubt that the rifle Art. 3, which corresponds to the description given in entry Ex. P/8, was seized and recovered from the possession of the accused. Since the rifle was recovered from the possession of the accused and Kansingh, his colleague, had no weapon, it clearly and definitely raised an inference that it was the accused and no one else, who fired the rifle it the truck In his statement under sec-tion 342, Cr. P. C. the accused admitted that he had a rifle when he and Kansingh were sent on duty. That further supported the evidence of the prosecution. The learned trial judge then proceeded to examine what offence was committed by the accused Gulabkhan. According to him the offence made out was under Part II of section 304, I. P. O.
(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. As regards the evidence of the ballistic expert, the learned counsel contended that unless the expert was able to say that the pieces, which were recovered from the person of the deceased, bore satiation marks and were of the bullet fired from the rifle in question, it cannot be said that the pieces which were recovered, were of the bullet fired from the rifle recovered from the possession of the accused. I was referred to Mohinder Singh vs. The State (2) para 10 and it was urged that where the prosecution has a definite or positive case, it must prove the whole of that case. The prosecution in this case has failed to prove that 'he injuries caused to the deceased were caused with the rifle and in the manner the prosecution has alleged they were caused. The learned counsel then submitted that it was a dark night and the possibility that some one might have fired and the actual culprit might not have been seen or detected and further that the appellant was falsely implicated, cannot be ruled out and on that basis the benefit of doubt should be extended to the accused. I have considered over all these submissions and I do not find any force in any of them. From the evidence on record it is proved that Gulabkhan was an employee of the Commercial Taxes Department posted on the relevant date at the check post Shahajahanpur. He and Kansingh (P. W. 2) attempted to stop the truck and when it disobeyed their signal, Gulabkhan fired his rifle at the truck It is true that the departmental Officers have not said how the rifle came to be issued to Gulabkhan, but it is difficult, to reject the evidence that the rifle was recovered from the possession of Gulabkhan. The recovery memo Ex. P/7 shows that the empty cartridge case was also recovered from the possession of the accused. It was sent to the ballistic expert for examination and his opinion was that it was fired from the said rifle. Even if the prosecution witnesses are silent about the recovery of the empty cartridge case from the possession of the accused, the evidence of the prosecution is so overwhelming that it is difficult to refuse the fact that Gulabkhan had a rifle which he fired at the truck eventually causing the death of Rambhajan Kansingh had told all the witnesses that it was Gulabkhan who was responsible for the gun fire, though he has now chosen to give evidence in favour of the accused. Even though the night was dark there appears little doubt that what Kansingh told the witnesses, was correct. I, therefore, uphold the finding of the learned lower court that it has been proved beyond any manner of reasonable doubt that while attempting to stop the truck for purpose of checking or whatever it be Gulabkhan fired his rifle and the bullet passed through the body of the truck, and wounded Rambhajan. ;