SHARMA, J. - (1.) MITTHAN Lal, the appellant herein, along with co-accused Vinod, Suresh Jagariya, Naresh, Rajendra, Ram Prakasth, Suresh Mudgal and Bhagwan Swaroop, was put to trial before learned Additional Sessions Judge (Fast Track) No. 1 Dholpur, who vide judgment dated December 22, 2003 while acquitting co-accused, convicted and sentenced the appellant under Section 302 IPC to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer one month simple imprisonment.
(2.) AS per the prosecution story on January 20, 1995 the informant Biri Singh (PW. 1) submitted a written report (Ex. P. 1) at 6 PM with the Police Station Sadar Dholpur to the effect that on the said day at Polling Booth of Panchgaon finding Suresh s/o Jagan Nath busy in forged polling when Hotam Singh nephew of informant forbade Suresh, he and Mitthan hurled abuses and threatened him of dire consequences. Around 4. 30 PM Mitthan armed with gun and Vinod, Suresh Jagariya, Naresh, Rajendra, Ram Prakash, Suresh Mudgal and Bhagwan Das having lathis and stones came over there and started pelting stones. Mitthan opened fire that hit Hotam Singh, who died on the spot. Hotam Singh and injured persons were removed to the hospital. On that report a case was registered and investigation commenced. Dead body was subjected to autopsy, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 dholpur. Charges under Sections 147, 148, 336, 323, 325, 307, 302 and 149 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 29 witnesses. In the explanation under Sec. 313 Cr. P. C. , the accused claimed innocence. Appellant Mitthan stated that he was a contestant for the post of Sarpanch, being candidate of Congress and to debar him from the election he has been implicated falsely. Thereafter he won the election of Sarpanch while he was in Jail and defeated Megh Singh. Ten witnesses in support of their defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. We have heard learned counsel for the appellant, learned Public Prosecutor and learned counsel for the complainant and with their assistance scanned the material on record. Death of Hotam Singh was undeniably homicidal in nature. As per Post Mortem Report (Ex. P. 15) following ante mortem injuries were found on dead body:- 1. Gun shot wound (wound of entry) size 3 1/2 cm x 2 1/2 cm at the medial 1/3rd of left clavicular area blackening edges, edges are inverted 11 cm above & medial to the left nipple, oval in shape direction of wound is downward, backward & towards Rt. side. 2. Abrasion size 3 cm x 1 cm at chest Rt. side above and outer the nipple, 12cm above nipple. 3. Abrasion size 3. 00 cm x 1/2cm over left 1/3rd. In the opinion of Dr. R. C. Goyal (PW. 11) the cause of death was hemorrhage and shock caused by rupture of left lung and aortic Arch. Coming to the prosecution evidence we notice that Biri Singh (PW. 1), the star witness of the prosecution, in his deposition attributed the gunshot injury of Hotam Singh to appellant Mitthan. According to him Mitthan opened fire at a distance of 150 ft. In his cross examination he deposed as under:- ******* Since the gunshot wound sustained by deceased had blackening edges, Dr. R. C. Goyal (PW. 11) opined that injury could have been caused by opening fire at a distance of about four feet only. In his cross examination Dr. R. C. Goyal stated thus:- *******
(3.) TESTIMONY of Dr. R. C. Goyal gets belied even from the site plan (Ex. P. 3) where the place of incident was as under:- ******* Jaipal Singh IO (PW. 26) admitted in his cross examination that he did not make investigation from Police Constables or Polling Agents:- ******* It is contended by learned counsel for the appellant that since the testimony of Biri Singh, Megh Singh and Devi Prasad is belied by the medical evidence it deserves to be discarded. Learned counsel took us through Modi's Medical Jurisprudence and Toxicology, Twenty-third Edition, wherein it has been mentioned at page 721 thus:- ``blackening is found, if a firearm like a shotgun is discharged from a distance of not more than three feet and a revolver or pistol discharged within about two feet. In the absence of powder residue, no distinction can be made between one distance shot and another, as far as distance is concerned. '' ;