Ganesh Jat & Ors. @APPELLANT@Hash State Of Rajasthan

Heard learned counsel for the parties.

Process of criminal law was set into motion when Uttam Chand Khatod: PW1 reached Police Station Lal Kothi, Jaipur and handed over a written

complaint: Ex.P1 to the Duty Officer informing therein that he resided as a tenant in a room in a building on Plot No.49, Kailashpuri, Moti Doongri

Road, Jaipur. Vijay Kumar (deceased) was also residing in a room in the same building as a tenant and was a student. Today i.e. on 10.11.2008 at

around 11.00 in the night he saw Vijay Kumar standing at the gate of the building. He was talking to the appellant Ganesh Jat who resided in a building

nearby. After some time he heard the two having heated discussion. He i.e. Uttam Chand Khatod came to the balcony of the first floor. The appellant

told Vijay to go to his room and sleep. Vijay replied that he would go back and sleep.

After some time he heard the sound of a fire. He came to the balcony and saw Vijay lying on the ground and the appellant fled therefrom. Vijay was

smeared in blood. After some time the police came to the spot and took Vijay to SMS Hospital where he was declared brought dead.

Making an endorsement on the written complaint requiring FIR to be registered for an offence punishable under Section 302 IPC, FIR Ex.P24 was

registered on the intervening night of 10th and 11th November, 2008.

The dead body of deceased Vijay was seized by the Investigating Officer and sent to the mortuary of SMS Hospital where post-mortem was

conducted on 11.11.2008 by Dr. Sheetal Jain: PW15. He prepared the post-mortem report, also exhibited as Ex.P24. A lacerated punctured wound of

size 0.5 x 0.5 in diameter placed 3 cm. below the left nipple, with blackening around was noted. A bullet of size 3 cm. was recovered vertically placed

over the 6th, 7th and 8th rib on the posterior surface. The bullet had pierced the chest cavity and the left ventricle of the deceased. It is obvious that

the cause of death was shock due to haemorrhage resulting from the injury to the heart. The bullet recovered was sealed and handed over to the

police officer conducting the inquest proceeding.

Since the name of the appellant was disclosed by PW1 in the written report Ex.P1, he was apprehended and the case of the prosecution is that

pursuant to the disclosure statement he got recovered a ‘Deshi Katta’ (country made pistol) as recorded in the Seizure Memo Ex.P8. During

investigation statement of Vishal Sharma: PW4 was recorded under Section 161 Cr.P.C. as also those of Bhanwar Lal: PW12 and his son Vikas:

PW13. The three persons claimed to be eye witnesses.

The bullet recovered from the dead body of the deceased as also the firearm recovered pursuant to the disclosure statement of the appellant was

sent for ballistic examination and as per report Ex.P28 the bullet has been opined to have been fired from the firearm (country made pistol) which was

recovered pursuant to the disclosure statement made by the appellant.

At the trial PW1, PW12 and PW 13 turned hostile and did not support the case of the prosecution. The complainant, PW1, on whose complaint FIR

was registered stated that he was sleeping. When he woke up to visit the toilet he heard voices of 3-4 people. He went back to sleep. After 15-20

minutes he heard a gunshot being fired. As he came out he saw a boy lying on the ground. The boy was Vijay. The police came and took the injured

to the hospital where he was declared dead. After declared hostile he was cross examined. He admitted that the written complaint Ex.P1 was in his

hand. He said that he was forced by the police to write the complaint. He denied the contents of the written complaint Ex.P1.

Vishal Sharma: PW4 supported the case of the prosecution and stated that on 10.11.2008 he was residing in the room with Vijay i.e. the deceased.

He and Vijay were watching television. Another tenant i.e. the appellant was residing in the same building. He went back to sleep. Vijay was

watching television. After 10-15 minutes he heard the sound of quarrel. He looked out from the window. The appellant shot Vijay. He dialed number

The police came and took the injured to the hospital where he was declared dead.

Believing the testimony of PW4 and linking the firearm got recovered pursuant to the disclosure statement made by the appellant to the bullet which

was recovered from the dead body of the deceased through the medium of ballistic report, the learned trial Judge has convicted the appellant for the

offence punishable under Section 302 IPC.

Concerning the firearm learned counsel for the appellant draws attention of this Court to the fact that the prosecution has led no evidence that the

bullet which was recovered from the dead body was after it was sealed deposited in the ‘Malkhana’ on the same day. There is no evidence led

that when it reached the State Forensic Science Laboratory the seal was intact. Learned counsel has drawn our attention to Ex.P29, the serological

examination report which unfortunately does not note that when packet marked ‘Nil’ containing the bullet was received at the Laboratory, the

seal was found intact. After serological examination the bullet was sent to the ballistic expert.

Indeed, the purity of the bullet recovered has seriously been tainted for the reasons afore-noted and thus we are left with eye witness account.

We have perused the testimony of PW4 and have also perused the cross-examination. Nothing is brought out in the cross-examination to discredit

his testimony. Learned counsel for the appellant draws attention to the testimony of PW12 and PW13 as per whom they never saw Vishal Sharma

reside or visit House No.49. Therefrom, counsel urges that testimony of PW4 needs to be discarded. The argument is noted and rejected for the

reason no credence can be given to the testimony PW12 and PW13 who turned hostile and did not support the case of the prosecution. We find that

the statement of PW4 was recorded by the Investigating Officer on 11.11.2008 in which he stated in sync with his testimony in Court under oath.

Learned counsel urges that as per the challan and as per Ex.P1 and the testimony of PW4, the position which emerges is that the appellant and the

deceased were having a verbal discussion for quite some time before the appellant fired at the deceased. What was being discussed has not surfaced.

Obviously something which was troubling the two was being discussed. The discussion turned heated evidenced by recording in Ex.P1 that loud

sounds of the two taking were heard. The heated discussion resulted in a single shot being fired.

We find merit in the said contention advanced. Indeed, the incident was preceded by a verbal altercation between the two i.e. the deceased and

the appellant. It is a case of the appellant acting upon a sudden quarrel. Thus, the offence committed by the appellant is not one of culpable homicide

amounting to murder. The offence is simply culpable homicide punishable under Section 304 Part-I IPC. The conviction of the appellant for the

offence under the Arms Act and the sentence imposed is maintained with a direction that the two sentences shall run concurrently.

We partially allow the appeal. The appellant is convicted for the offence punishable under Section 304 Part-I IPC and is sentenced to undergo R.I.

for a period of ten years. The appellant would be entitled to the benefit of Section 428 Cr.P.C.