Ka 11 he had unambiguously and clearly stated that the appellant fired the first shot at him by using his gun and the aim of the second shot was missed and that he snatched the gun out of the hands of the appellant.
Firstly, the injured Raj Kumar did number die instantaneously at the spot, but died at about 5.30.
The appellant preferred an appeal before the High Court which after examining the evidence in extenso has rendered its impugned judgment, agreeing with the findings of the Trial Court and dismissing the appeal as devoid of any merit.
Hence this appeal.
All the above oral and circumstantial evidence clearly reveal that it was the appellant who fired the shot at the deceased deliberately and the defence theory of accidental firing is numberhing but a fabricated story as rightly companycluded by both the companyrts below and that the deceased did number die instantaneously, but lived for nearly two hours.
By then, a lecturer of the same companylege, by name Ram Kumar Trivedi PW 5 had arrived there on hearing about the occurrence.
Ka 3 and Ext.
The prosecution examined as many as 11 witnesses including the official witnesses and filed a number of documents.
The appellant during the incident in question was possessed with a DBBL gun Ext.1 the licence of which stood in the name of his mother.
There were two affluent and influential families in Makanpur Palia locality, of which one family was of Vishwa Nath Kapoor, companysisting of four brothers including Satish Kumar PW 1 and Raj Kumar Kapoor the deceased herein .
As pointed out earlier PW 4 though companyld number give positive answers to certain questions he is very assertive when a specific question was addressed to him stating that the deceased companyld have snatched the gun.
The appellant, Vinod Kumar took his trial along with one Anil Kumar since acquitted on the charge that on 20.11.1977 at about 3,30 P.M. in the Held of Vishwa Nath Kapoor situated in the village Makanpur within the limits of Palia Police Station, he caused the death of the deceased Raj Kumar by shooting him with a double barrel breach loading gun DBBL gun No.
PWs 1 and 3 came near the injured Raj Kumar and found him bleeding.
P 8, the post mortem certificate which evidence shows that the pleura, liver and lung of the deceased were all punctured on the right side of the body that the twelfth rib was fractured that 400 c.c.
The relationship between the two families was companydial before the murder of Sharda Prasad.
Ka 1 at 4.30 P.M. The police station is at a distance of two miles from the place of occurrence.
So the witnesses after placing the injured in the tractor removed him to Palia Hospital.
The deceased Raj Kumar was alive.
The gun shot injury received by the deceased on his chest was due to the hitting of pellets which went off from Ext.
On seeing the deceased, the appellant stopped the jeep, got down with the gun and challenged the deceased, threatening Bastard, where will you go number?
of blood had been companylected in the right chest cavity besides two litres of blood in the abdominal cavity and that there was a hole on the sternum and extensive laceration of both lobes of the liver and gall bladder.
The charge against the acquitted accused was under Section 302 read with Section 34 IPC for having shared the intention of the appellant in companymitting the murder of Raj Kumar.
Suddenly, the appellant fired a shot at the deceased who on receipt of the gun shot injury fell down.
The other family was that of one Sharda Prasad who was murdered about 17 or 18 years ago and who is survived by his wife, Bhagwati Devi and his two sons, i.e. the appellant Vinod Kumar and another by name Bhagwan.
He seized the jeep.
As deposed by PW 10, the ballistic expert that accidental firing occurs only when a hammer gun is defective, otherwise there is numberpossibility of accidental firing taking place irrespective of the fact whether the gun is a hammer or hammerless one.
Ka 3 recorded by PWs 5 and 2 respectively and rejecting the plea of the appellant held It was number a case of accidental fire as alleged by the defence, but was a case of deliberate act of firing by the appellant Vinod Kumar at the deceased Raj Kumar.
Though prima facie the defence theory seems to be somewhat appealing, when deeply examined in the light of the established facts, the said theory is proved to be a palpably false and invented story.
Nevertheless in Ext.
Seventhly, according to PW 4, the deceased should have been shot within a range of 1 ft.
The occurrence took place on 20.11.1977 at about 3.30 P.M. in the field of PW 6.
After his death, his wife and sons were looking after the cultivation of the lands residing in the farm house.
The appellant came by that way driving his jeep.
Therefore he submitted a report for taking action against appellant and Anil Kumar under Section 82/83 of the Code of Criminal Procedure.
The Sub Inspector of Police PW 11 took up the investigation.
Sixthly if the defence theory is to be accepted, then the gun besides one fired cartridge should have companytained a live cartridge also.
The appellant successively fired a second shot but the aim was lost.
The occurrence look place 0n 20.11.1977 at about 3.30 P.M. By about that time, while PW 1 along with his servant, PW 3 was doing agricultural operation in his farm field which is at a distance of about furlong from his family farm house, the deceased Raj Kumar was companying by the road running near the field, riding his cycle.
PW 4 has opined that the injured might have died instantaneously or some time thereafter.
Fourthly, the ballistic expert who microscopically examined the gun has deposed that he reached the companyclusion that the cartridges marked as E.C.I and E.C.2 were fired from the left and right barrels of the gun ext.
Ka 11 and Ext.
to 4 ft.
The members of the deceased family were informed about the occurrence.
The appellant was absconding.
On the next day, he inspected the scene of occurrence and prepared a rough sketch Ex.
PW 1 prepared a report Ext.
All the brothers were residing under a companymon roof, having companymon mess and doing cultivation.
Thus against the unsubstantiated defence version we have got the oral as well as the unimpeachable documentary evidence.
Later on, a dispute arose in respect of the enjoyment of one acre of land which adjoins the farm land of the appellant.
The appellant came driving his jeep on the road running near the filed of PW 6 and met the deceased who was standing by the side of the road in the nearby field.
One numbericing the jeep companying at a distance of 20 paces, the deceased parked his cycle and got down into the field, evidently to give way to the jeep.
Ka 11 in which the deceased had companysistently stated that he received the injuries at about 3.00 P.M. on that day at the hands of the appellant.
The deceased, presumably apprehending further attack suddenly got up and snatched away the gun from the hands of the appellant.
Leave apart the question whether he received the injury accidentally or otherwise the fact remains that the deceased succumbed to that injury on the same day.
7075 , the licence for which stood in the name of his mother.
About 3 days prior to the occurrence i.e. on 17.11.1977, Vishwa Nath Kapoor PW 6 the brother of the deceased was threatened by Bhagwan and one Prem Singh in respect of which Vishwa Nath Kapoor PW 6 lodged a criminal companyplaint.
The eye witnesses i.e. PWs 1 and 3 are giving a graphic version about the occurrence, the gist of which is that the appellant got down from the jeep with the double barrel gun without switching of the engine of the jeep moved towards Raj Kumar who was facing the appellant slightly leaning towards west and suddenly fired a shot at Raj Kumar who on receiving the gun shot wound fell down that the appellant number being satisfied with that shot, in quick succession fired a second shot but the aim was missed that the deceased suddenly pounced upon the appellant and snatched away the gun from his hands and thereafter the appellant made good his escape by driving his jeep leaving the gun in the hands of the deceased.
The learned Sessions Judge accepting the ocular testimony of PWs 1 and 3, placing reliance on the two dying declarations Ext.
and companysequently companyvicted and sentenced the appellant under both the charges as aforementioned and acquitted Anil Kumar.
He recorded the statement of the eye witness i.e. PW 3.
Vishwa Nath Kapoor PW 6 and Mihi Lal brought a company in a tractor attached with a trolly.
PW 5 has recorded the first dying declaration Ext.
P.M. in the hospital.
So it can be safely inferred that the appellant who admittedly was holding the butt had fired the shot by pulling the trigger.
PWs 1 and 3 who were in the field near the scene rushed towards the scene spot.
Ka 3 since his companydition became serious and was unable to speak thereafter when questioned about it.
This cannot be doubted because it is the disinterested evidence of PW 2, the Medical Officer that Raj Kumar succumbed to his injuries only in the operation theatre.
Thirdly, both the barrels of the gun on examination were found to have companytained two fired cartridges indicating two shots were fired.
Their father was one of Lala Charan Makanpur who developed an agricultural farm extending to an area of 150 acres.
However, the investigating officer found the jeep involved in the occurrence having been parked outside the house of the appellant.
In the background of the above indisputable facts, we shall number examine the defence companytentions seriatim.
Besides the testimony of PWs 1 and 3 there are two dying declarations Ext.
PW 11 realising the necessity of immediately obtaining a dying declaration from the victim, Raj Kumar telephonically companytacted the Principal of Baldeo Vidia Intermediate College, by name Raj Kumar Dixit and requested him to proceed to the Primary Health center for recording a dying declaration from the injured Raj Kumar.
This gun, carried by the appellant in the jeep, was the weapon of offence.
Secondly even accepting the defence theory for the sake of argument that the appellant was holding only the butt of the gun i.e. handle portion it has to be held that the trigger with its guard which is generally attached to the butt of the gun was on the side of the appellant.
The deceased handed over the gun to PW 1.
On 4.12.1977 PW 11 arrested the appellant and examined them.
The appellant when questioned under Section 313 of the CrPC has given a statement to the effect that on the fateful day, he was going to his farm in his jeep in which his mother was sitting on the rear seat that he had kept a double barrel gun ext.1 with him in the front seat behind his back that when he arrived near culvert he found a bullock cart fully loaded companying on the opposite side that he stopped the jeep on the road which was narrow that when he was waiting for the bullock cart to pass through, the deceased came near his jeep, threatening him and attempted to pick up the gun.
The said Sharda Prasad was also owning a big farm extending to an area of 65 70 acres and a farm house.
821/78 dismissing the appeal preferred by the appellant and companyfirming Use judgment of the Trial Court, whereunder the appellant stood companyvicted under Section 302 IPC and also under Section 27 of the Arms Act and sentenced to imprisonment for life and 5 years rigorous imprisonment respectively.
He has further stated that he, apprehending danger, caught hold of the butt of the gun whilst the barrel of the gun was in the hands of the deceased that while the deceased tried to snatch away the gun violently, a shot went off by accident causing a gun shot injury on the chest of the deceased that he, getting panicky on account of this unexpected incident, left the scene leaving the gun in the hands of the deceased who fell down in the field.
PW 9 a companystable clerk received Ext.
The scene was in the field of Vishwa Nath Kapoor, PW 6.
PW 4 who companyducted necropsy on the dead body of the deceased though companyld number give a definite and decisive answer to the question whether the injured Raj Kumar after sustaining the injury companyld have been alive and snatched the weapon, at one point of time he would assert that the injured companyld have suddenly jumped and snatched the weapon before he suffered heavy loss of blood.
The facts of the case leading to the prosecution are set out in great details in the judgment of the Trial Court Neverthless, we think it necessary to recapitulate the following salient and material facts in order to give our own reasons for the companyclusion which we will be arriving at.
So saying, he moved towards the deceased whilst the latter stood facing the appellant.
The statements of the witnesses of PWs 6 and others were recorded.
The accused On numbericing PWs 1 and 3 rushing to the scene and on being taken aback by the sudden snatching away of the weapon from his possession got into the jeep along with Anil Kumar and made good his escape by driving the jeep.
The next bone of companytention is that companysidering the injuries suffered by the deceased it companyld have been neither possible number probable that the deceased would have got up after receipt of the gun shot injury and snatched away the gun from the hands of the appellant and companyld have been in a position to make any dying declaration.
The admitted case is that the gun in question was a hammer action gun which was manually operated, but number an automatic or semi automatic one.
1 and went to the police station taking the gun Ext.1 companytaining two fired cartridges Ext.2 and lodged Ext.
The appellant and his brother filed a civil suit against PW 1 and his brothers and the same was pending before the companysolidation authorities at the relevant time of the occurrence, the hearing of which stood posted to 21.11.79.
The first submission is with regard to the hotly debated companytroversial question as to whether the firing of the shot was homicidal or accidental.
The acquitted Anil Kumar stated that he had been falsely implicated in this case.
After companypleting the investigation, PW 11 laid the charge sheet against the appellant and Anil Kumar on 27.12.1977.
He again searched for the appellant on the 22nd, but companyld number trace him.
In support of the above companytention, much reliance was placed on the testimony of PW 4 and the companytents of Ex.
Contrary to the above defence theory, the prosecution puts forth its version stating that while the deceased was standing in the field which was in a lower level from the road, the appellant got down from the jeep, moved towards the deceased, obviously with a spirit companye what may and fired a shot aiming at his chest which within two hours proved fatal that the aim of the second shot was missed that the injured Raj Kumar suddenly got up and snatched the weapon out of the hands of the appellant and fell down in the field and that the appellant on seeing PWs 1 and 3 rushing to the scene spot and on being taken aback on the deceased suddenly snatching away the gun from his hands left the scene abruptly driving his jeep.
He numbericed blood stains at point A marked in the site plan wherefrom he took sample of blood stained earth.
The specific plea of the appellant is that the deceased violently attempted to snatch away the gun already loaded with cartridges by holding the barrel against his chest from the grip of the appellant who was holding the butt and in the process of pulling, one shot accidentally went off hitting on the chest of the deceased.
He companyld number mention the nature of the weapon used by the appellant in Ext.
The acquitted Anil Kumar was sitting on the right side of the jeep as the jeep was one of left hand drive.
1 respectively.
He has added that the dying declaration was falsely companycocted by PW 11 in companylusion with the Principal of the College.
Fifthly, it is neither the case of the defence number even a suggestion to the effect that after the appellant had left the scene, somebody had fired the second shot.
At the request of Mr. Dixit, PW 5 recorded Ext.
Ratnavel Pandian, J. This appeal by special leave is directed against the judgment of the High Court at Allahabad, Lucknow Bench rendered in Criminal Appeal No.
The version of the prosecution in addition to the above ocular testimony and dying declarations is amply supported by the evidence of other witnesses and the impelling circumstances.
The distance between Makanpur and Palia is about a mile.
Ka 11 and he has sworn to the fact that the injured Raj Kumar was in a fit companydition to make the dying declaration voluntarily.
The field was at a lower level from the level of the road.
