M.L. Shrimal, J. - (1.) This appeal by Francis Alfred is directed against the judgment, dated January 24, 1976, of the learned Additional Sessions Judge, Ajmer, whereby he convicted the accused-appellant under Section 302, IPC and sentenced him to imprisonment for life. He was also convicted under Section 27 of the Indian Arms Act and was sentenced to one year's rigorous imprisonment. The substantive sentences of imprisonment, awarded under both the counts were directed to run concurrently.
(2.) Tersely speaking the prosecution case as disclosed at the trial in brief is that PW Edward Smith was a tenant of Francis Alfred accused. Bunty (deceased) was a friend of Edward Smith. Edward Smith used to take his meals at the house of Bunty. On December 8, 1974 Bunty (deceased) had gone to the house of Edward Smith to take meals. When they were taking meals, Christopher Clement and the accused Francis Alfred also happened to arrive there. Edward Smith gave a ten rupee note to the accused to get some liquor. Liquor was brought and served. Under the influence of liquor Bunty (since deceased) and Francis Alfred exchanged hot words. Bunty abused Francis Alfred and remarked that he was mal-treating his wife and that he should abstain from doing so. The accused retorted in a tell tale manner that he should mind his own business and should not intervene in his family affairs. On intervention of Edward Smith the accused went away. Later on Edward Smith accompanied Bunty to his house where the latter gave him some thing to eat. The accused also happened to arrive there. While talking about the maltreatment by Francis Alfred with his wife, quarrel ensued. Again, Edward Smith had to intervene. He persuaded Francis Alfred to go back to his house. After some time Edward Smith left Bunty's house for his own residence, It appears that Bunty also followed him. When Edward Smith reached the outer gate of his house, he found accused Francis Alfred standing with a 12 bore gun. Edward Smith asked him to go away. He accordingly left the place. At that stage Bunty appeared on the scene. He went after Francis Alfred towards the verandah of his house. Soon after accused Francis Alfred turned his face and fired a shot, as a result of which Bunty sustained an injury on his chest and met instantaneous death. Dumb founded and non-pleased PW 1 Edward Smith rushed to the house of Bunty and had a talk with PW 2 Mrs, Tinkie Margaret, wife of Bunty deceased. He then asked her to accompany him, On the way he told her that Bunty had been shot dead by Francis Alfred. The woman then went upto her husband and found him dead. She asked the accused as to what made him to shoot her husband. The latter replied that he had done the right thing. She went back to her place and informed Panna Singh PW 3. Panna Singh then informed the police on telephone. The police reduced the information into writing. The same constitutes the first information report of the case. It is marked Ex. P/38. Autopsy of the dead body of Bunty deceased was performed by PW 12 Dr. Sita Ram Mittal. The postmortem report is Ex. P/17. On clinical examination the Doctor found the following external injuries on the dead body of Bunty: 1. An almost circular wound about 2.5 cms. in diameter on left side of chest over left third rib, and third inter costal space about 3 cms. medial to left nipple. Direction backwards downwards and lightly outward. Abraded collar about 1-2 cm wide all round the wound, more clear along upper border margins of wound inverted. Skin around wound preserved. No scorching or blackening of skin around the wound. The Doctor also found the following internal conditions:- "It was found that the wound was going inside the thoracic cavity after fracturing left fourth rib near its medial end. Pericardiam was full of clotted blood. Heart showed a laceration in 6 cms. x 5 cms. near its apex. Both the ventricals were open and full of blood clots. Many small metallic pellets were present in both the ventricals. 5 small metallic pellets were removed from left dome of the diaphram. Few metallic pellets along with other parts of bullet were recovered from left plural cavity, which was full of blood. There were few small openings in left dome of diaphram through which few pellets passed into abdomen and were recovered from the wall of stomach. Pellets and other parts of the bullet were preserved and must have been handed over to police." According to the Doctor Bunty died of the above injury which was antimortem in nature. 1. After registering the case, the S. H. O., Police Station, Alwar Gate, Ajmer, reached the scene of the occurrence. He prepared site plan Ex. P/8, seized a pair of chappals as well as one Baniyan and one Bushshirt from the dead body. The seizure memos are Ex. P/11 and Ex. P/12 respectively. A gun lying near the verandah was also recovered under memo Ex. P/10. Two broken Muddahs with a Jhadu and blood stained earth were also seized. After his arrest the accused expressed his desire to get the empties recovered. The information memo is marked Ex.P/39. In consequence of this information three empties were recovered. The empties so recovered, along with the 12 boregun, were sent to the Ballistic Expert for examination. The reports of the Ballistic Expert are Ex P/36 and Ex. P/37. The police after investigation, submitted a challan against the accused Francis Alfred in the Court of Additional Munsif Magistrate, Ajmer City East. Learned Munsif Magistrate committed the accused to the Court of Sessions Judge, Ajmer, for taking trial under Section 302. I.P.C. as also under Section 27 of the Arms Act.
(3.) In the course of trial in the Court of Additional Sessions Judge, Ajmer the accused pleaded not guilty to the charges under Section 302 I.P.C. and Section 27 of the Arms Act. The prosecution examined 16 witnesses in support of its case, out of these witnesses PW Edward Smith is the solitary eye-witness of the occurrence. PW 2 Mrs. Tinkie Margaret is the wife of the deceased. PW 3 Panm Singh is the person, who gave first information report in this case. PW 4 Duli Chand was examined to prove that there had been some quarrel between Bunty and Francis Alfred about a month and a half before the occurrence. PW 12 Dr. Sita Ram was examined to prove the postmortem report Ex P/17 and the injury sustained by the deceased. PW 15 Dr. G.R. Prasad is the Ballistic Expert. He examined the live cartridge as well as the gun. PW 16 Loknath is the investigating officer of this case. The accused in his statement, recorded under Section 313 Cr.P.C., denied his complicity in the crime. He, however, admitted that he had been to the house of Edward Smith when Bunty was sitting there. Edward Smith gave him ten rupee note to bring liquor, which was brought by him. Bunty told him that he was a drunkard and used to beat his wife and children. As a retort he told Bunty that he had kept his own sister as his wife, who gave birth to four children, even though her husband was alive. This enraged Bunty and he rushed towards him in a threatening posture. Christopher Clement aud Edward Smith intervened and asked him to go home. At about 12.30 A. M. in the dark night Bunty came to his house. He knocked at the door and asked him to come out. On the threatening attitude of Bunty, his wife and children raised alarm. He then came out with a gun to defend himself. At that stage Bunty caught hold of the barrel of the gun and they began to quarrel with each other. He informed Bunty that the gun was loaded and that it might hit any one of them. Without any intention of firing the gun accidentally went off and it hit Bunty. He had no intention to kill Bunty. The accused in his defence examined his wife and one child, namely, DW 1 Mrs. Vimla and DW 2 Vinod respectively.;