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Judgment
P.N. DESHMUKH, J
1)Â This appeal takes exception to the judgment dated 22/4/2017 passed by learned Additional Sessions Judge, Achalpur in Sessions Trial No.82/2012
vide which appellant came to be convicted for the offence punishable under Section 302 of Indian Penal Code and sentenced to suffer rigorous
imprisonment for life and to pay fine of Rs.10,000/Â and in default, to suffer further rigorous imprisonment for six months.
2)Â Â The case of prosecution, in brief, can be stated as under:
The appellant on the day of incident was working in Police Department and as such was provided a service rifle. On 7/5/2012, P.W.1 Nasir Khan, son
of deceased Israil Khan, lodged oral complaint against appellant contending that on that day at 10 a.m. when complainant was sitting on the platform
with his deceased father, appellant passed in front of them on his motorÂcycle. The complainant in short time came inside the house while his father
continued to sit on the platform. At around 10.30 a.m. P.W.1 Nasir Khan heard sound like bursting of fireÂcrackers and on hearing such sound, he
along with his nephew Sohail (not examined) came out and found appellant firing bullets from his rifle on deceased Israil Khan, due to which he fell
down. Â It is further alleged that appellant also fired two rounds in air and on hearing cries raised by P.W.1 Nasir Khan, P.W.2 Ansar Khan and
Nisar Khan (both brothers of Nasir Khan) arrived on the spot and caught hold of appellant and snatched the rifle from his hands. The appellant then
fled away from the spot. Sons of injured Israil Khan carried him to the Hospital where he succumbed to the injuries.
3)Â Â On the basis of report lodged by P.W.1 Nasir (Exh. 30), crime came to be registered for the offence punishable under Section 302 of Indian
Penal Code. Appellant came to be arrested on the same day at 9 p.m. During the course of investigation, spot panchanama came to be drawn and
empty shells of bullets, seven in number, came to be seized from the spot of incident along with other articles. Rifle came to be seized under
panchanama (Exh.40) as produced by P.W.2 Ansar Khan. After recording statements of witnesses, clothes and blood sample of deceased Israil Khan
were collected from the Hospital and forwarded to Chemical Analyser. Appellant was also sent for his medical examination and the Medical Officer
had also collected shot gun residue from the hand of appellant and his hand wash sample was forwarded for examination. On collecting post mortem
report, query was made to Medical Officer as to whether injuries suffered by deceased Israil Khan were possible by rifle, which was replied in
positive. Â The seized rifle along with empty shells of bullets and five live cartridges, clothes of accused and deceased Israil Khan and their blood
samples were sent to Chemical Analyser for examination. Â On completion of investigation, chargeÂsheet came to be filed before the competent
Court.
4)Â Â During the course of time, case came to be committed for trial before learned Sessions Judge. Charge was framed against appellant for the
offence punishable under Section 302 of Indian Penal Code vide Exh.6, which he denied and claimed to be tried. The defence of accused is of total
denial. According to him, he is falsely implicated. He did not examine any witness in support of his case.
5)Â Â To establish the charge levelled against appellant, prosecution in all examined ten witnesses and commenced its evidence by examining
complainant P.W.1 Nasir Khan and P.W.2 Ansar Khan, both sons of deceased Israil Khan and alleged eye witnesses, P.W.3 Shaikh Hameed,
witness on spot panchanama and seizure of articles found on the spot and he has also acted as a panch on collecting gunshot residues from the palm
of accused and on seizure panchanama for seizure of rifle as produced by P.W.2 Ansar Khan, who is alleged to have snatched it from appellant at the
time of incident, P.W.4 Nilesh and P.W.5 Gopal, both eye witnesses, P.W.6 Deepak More, Police Constable, who was inÂcharge of Arms and
Ammunitions of Paratwada Police Station, P.W.7 Santosh, Police Constable, who was on patrolling duty along with appellant on the day of incident,
for which purpose service rifle along with live cartridges were provided to appellant and to this witness, P.W.8 Pramod Misal, Ballistic Expert, who
has opined that empty shells referred for examination were fired from the service rifle having Butt No.147 supplied to accused for the purpose of
patrolling in the evening of 6/5/2012, P.W.9 Dr. Arun Shendre, who examined the xÂray plates of deceased Israil Khan relating to injuries sustained
by him on his chest, abdomen, left palm and right shoulder and submitted his opinion vide Exh. 71 and concluded evidence by examining P.W.10
Sachindra Shendre, Police Inspector â€" Investigating Officer.
Considering the evidence of above witnesses, learned trial Judge convicted appellant as aforesaid. Hence, this appeal.
6)Â Â Heard Shri Daga, learned Counsel for appellant, and Shri Sonak, learned Additional Public Prosecutor for respondent.
7)Â Â It is submitted by Shri Daga, learned Counsel for appellant, that though prosecution has relied upon evidence of eye witnesses, their evidence
is not convincing as the same is contrary to each other on material aspects and neither of these witnesses can be said to be eye witness to the incident
of assault by appellant as alleged by prosecution. It is contended that death of Israil Khan on sustaining injuries by gunshots is not disputed and as
such, learned Counsel has not disputed the report of Ballistic Expert nor has disputed the homicidal death of Israil Khan. In the circumstances, it is
also not disputed that during the course of investigation, rifle, which admittedly was issued to appellant during the course of his service for the purpose
of patrolling was possessed by him and was sent for the purpose of examination to Ballistic Expert along with empty shells and live cartridges.
8)Â Â Learned Counsel Shri Daga by referring to the evidence of eye witnesses has also contended that from the evidence of these witnesses, it has
come on record that after their reaching the spot, rifle was snatched from the hands of appellant when it was fired and thus, it is a case of accidental
death. It is further submitted that there was no reason for appellant to commit murderous assault by opening fire arm on deceased Israil Khan. In fact,
it has come in the evidence that their relations were cordial. It is also contended that case of prosecution is not unfolded completely as appellant is
found to have sustained injuries on his person, which are not explained by prosecution and, therefore, genesis of the present crime is suppressed. It is
further contended that since appellant had sustained injuries on his person as per injury certificate (Exh. 102), there had to be some incident, which had
occurred prior to incident of accidental firing between deceased Israil Khan and appellant wherein deceased Israil Khan on sustaining fire injuries,
succumbed to the same. In the background of submissions advanced as aforesaid, it is submitted that appeal is liable to be allowed.
9)Â Â Shri Sonak, learned Additional Public Prosecutor for respondent, on the other hand, has submitted that though there are minor contradictions in
the evidence of eye witnesses, their evidence substantially establishes involvement of appellant as from their evidence it is established that they have
witnessed firing by appellant on deceased Israil Khan, due to which he sustained injuries and succumbed to the same. It is further contended that
defence, even otherwise, has not disputed homicidal death of Israil Khan nor has disputed that he died of gunshots. It is submitted that as there are
eye witnesses, it is not necessary for prosecution to establish motive in the present case. It is submitted that appeal is without any merit and hence, the
same is liable to be dismissed.
10)  In the backdrop of above submissions, perusal of evidence of complainant â€" P.W.1 Nasir Khan would reveal that appellant, who at the
material time was working in Police Department, was friend of deceased Israil Khan and he was on visiting terms at their house. On 7/5/2012 at about
10 a.m. when this witness along with his deceased father was sitting on the platform, appellant is said to have passed in front of their house watching
towards deceased Israil Khan with anger. Â This witness has further deposed that he thereafter went inside the house while his father sat at the
platform and in short time, he heard sound like bursting of firecrackers and, therefore, he along with his nephew Sohail (not examined) came out of
house and found appellant firing bullets from rifle on his father. Â P.W.1 Nasir has further deposed that on his raising shouts, his brothers P.W.2
Ansar Khan and Nisar Khan (not examined) came out of house and he along with his brothers though tried to catch appellant, he fled away. Â In the
later part of his evidence, he has deposed about his father sustaining bullet injuries and of his admission to Government Hospital where he succumbed
to injuries and about his lodging report (Exh. 30) by visiting Police Station, Paratwada.
11)Â Â In the crossÂexamination, P.W.1 Nasir Khan admits that on hearing noise like fireÂcrackers, on instructions from his elder brother P.W.2
Ansar Khan, he along with Sohail came out of house to verify the sound and on coming out of house, found his father to have suffered injuries and
was lying on the ground. Â In the background of admission as aforesaid, P.W.1 Nasir thus appears to have arrived on the spot when deceased Israil
Khan was lying on the ground on sustaining fire injuries. In fact, he has denied that on his coming out of house, he saw his father running away from
the platform and bullets were being fired at him. In view of his evidence, thus it has come on record that when he came out of house, deceased Israil
Khan was lying on the ground.
In the later part of his crossÂexamination, P.W.1 Nasir Khan admits that on hearing shouts, P.W.2 Ansar Khan and Nisar Khan (not examined) came
out of house and both of them tried to snatch rifle from the hands of appellant when there was firing from the gun. According to him, while snatching
rifle, two bullets got fired therefrom.
12)Â Â In view of above evidence of P.W.1 Nasir Khan, it is clear that P.W.2 Ansar Khan and his brother Nisar Khan came out of house only on
hearing shouts raised by P.W.1 Nasir Khan and in view of earlier evidence of P.W.1 Nasir Khan admitting that when he came out of house, he found
his father lying on the ground having suffered injuries, evidence of P.W.2 Ansar Khan, who is also relied by prosecution as an eye witness, is required
to be scrutinized minutely to satisfy whether P.W.2 Ansar Khan can be termed to be eye witness to the incident.
13)Â Â Perusal of evidence of P.W.2 Ansar Khan would reveal that when he came out of house, he found his father standing at some distance from
the platform having bleeding injury on his shoulder and appellant present with a gun in his hand and that he rushed towards appellant to catch him
when he fired two rounds from the said gun. In spite of that, P.W.2 Ansar Khan caught hold of gun and in the meantime, P.W.1 Nasir Khan arrived
on the spot. He further claims to have snatched the gun from the hands of appellant and handed over to P.W.1 Nasir Khan. Â When this limited
evidence of P.W. 2 Ansar Khan on the point of incident of assault is perused, he has in clear terms deposed that after his arrival on the spot, P.W.1
Nasir Khan came there, to whom he handed over the gun after it was snatched from the hands of appellant. As such, evidence of P.W.1 Nasir Khan
about his arriving on the spot prior to P.W.2 Ansar Khan is doubtful. Even otherwise, P.W.1 Nasir Khan is silent about arrival of P.W.2 Ansar Khan
on the spot prior to him. Similarly, though P.W.1 Nasir Khan claims to have arrived on the spot prior to P.W.2 Ansar Khan and witnessed his father
lying down on the ground in an injured condition,
P.W.2 Ansar Khan claiming to have arrived on the spot prior to P.W.1 Nasir Khan has deposed that on his arrival, he found his father standing at
some distance from the platform having sustained bleeding injury to his shoulder and appellant present there with weapon in his hand. If P.W.1 Nasir
Khan is to be believed about his seeing his father lying on the ground in an injured condition and claiming to have arrived on the spot first in point of
time, evidence of P.W.2 Ansar Khan contradicts his evidence materially when he has in clear terms deposed that he had witnessed his father standing
near platform having bleeding injury to his shoulder and has specifically stated that his younger brother Nasir Khan arrived after him.
14)Â Â Evidence of aforesaid both witnesses, therefore, does not inspire confidence. Omissions in the statement of P.W.2 Ansar Khan about his
coming out of house on hearing noise like bursting of fireÂcrackers and noticing his father standing near platform having bleeding injury to his shoulder
and further his rushing towards appellant to catch him, during the course of which two gunshots were fired are material omissions, which are duly
proved on record. As evidence of P.W.1 Nasir Khan and P.W.2 Ansar Khan is doubtful being contrary to each other as aforesaid, is not worthy to be
relied upon. Similarly, evidence of P.W.2 Ansar Khan of his snatching gun from the hands of appellant and handing it over to P.W.1 Nasir Khan is
also contrary to the evidence of Investigating Officer as well as to the contents of seizure panchanama of rifle (Exh. 40) as according to this
document, said weapon is stated to be seized from the possession of P.W.2 Ansar Khan as produced by him on 7/5/2012 for which no explanation is
on record. Similarly, case of appellant of deceased Israil Khan sustaining fireÂarm injury due to accidental fire shot also is found probable when
P.W.1 Nasir Khan has admitted that at the time of snatching of weapon from the hands of appellant, there was firing from gun. In fact, he has
admitted that when P.W.2 Ansar Khan and his brother Nisar Khan were trying to snatch the rifle from the hands of appellant, two bullets got fired
therefrom.
15)Â Â Prosecution to establish charge levelled against appellant though has further relied upon evidence of P.W.4 Nilesh, his evidence would reveal
that he was knowing deceased Israil Khan and at the time of incident, claims to be sitting along with deceased Israil Khan at around 10.30 o'clock in
the morning. He has deposed that appellant fired bullet, which struck to the shoulder of deceased Israil Khan and that bullet went through the shoulder
and after coming out from the back side of shoulder, hit the steel gate. Â He has further deposed that after suffering bullet injury on shoulder, Israil
Khan got up from the platform and searched for stone to hit back to appellant when appellant again fired three bullets from his gun, which, however,
did not hit deceased Israil Khan and struck to nearby wall. He has also deposed that Israil Khan again came forward when appellant again fired
bullets, which hit on his chest, stomach and palm and, therefore, he fell on the ground. He has specifically deposed that thereafter his son P.W.2
Ansar Khan came out of house and snatched gun from the hands of appellant when again there was shot fired from the weapon.
16)Â Â Evidence of P.W.4 Nilesh when considered, appears to be totally contrary to the evidence of P.W.1 Nasir Khan and P.W.2 Ansar Khan. In
fact, neither of these two witnesses has made any reference to presence of P.W.4 Nilesh on the platform with their father nor has deposed about so
many things deposed by P.W.4 Nilesh as aforesaid about bullet entering in the shoulder and coming out from the back side of shoulder and hitting to
steel gate and about deceased Israil Khan having sustained fire arm injury to his shoulder, searching for stone to hit appellant when he fired three
more rounds, which did not hit deceased Israil Khan, but struck to the adjoining wall, etc. Â Evidence of P.W.1 Nasir Khan and P.W.2 Ansar Khan is,
even otherwise, silent about their father having sustained fire arm injuries on his chest, stomach and palm as deposed by P.W.4 Nilesh and contrary to
the evidence of P.W.4 Nilesh, evidence of P.W.1 Nasir Khan and P.W.2 Ansar Khan reveals deceased Israil Khan sustaining injury to shoulder only.
P.W.4 Nilesh is even otherwise silent on the presence of P.W.1 Nasir Khan on the spot.
17)Â Â Considering the evidence of aforesaid eye witnesses as relied by prosecution, neither of these witnesses can be said to be reliable to hold that
they have witnessed the incident of assault as put forth by prosecution. On the contrary, even from the evidence of P.W.4 Nilesh, possibility of
accidental firing from the gun when it was being snatched by P.W.2 Ansar Khan cannot be ruled out.
18)Â Â In the crossÂexamination, P.W.4 Nilesh admits to have not lodged any report to Police. No explanation is put forth on this aspect when
according to this witness, alleged firing took place in his presence. He further admits to have not disclosed anything to Police, who were deputed on
the spot after the incident throughout the day, but had visited Police Station for his statement on the following day at 10.30 a.m. before which accused
was already arrested. Similarly, evidence of this witness is also full of omissions about bullet hitting shoulder of injured and coming out from the back
side, striking the steel gate, injured after sustaining injury to his shoulder searching for stone to hit appellant and appellant firing four shots, which did
not hit the injured, but struck to the wall, which omissions are duly proved by the Investigating Officer.
In view of above discussed evidence, neither of these eye witnesses can be relied upon to establish the case of prosecution. Â
19)Â Â Last eye witness relied by prosecution is P.W.5 Gopal, who has deposed that on the day of incident at about 10.30 a.m. after rising from bed,
he heard noise of firing and, therefore, came out of house. Still firing was going on in which deceased Israil Khan was injured. As per his evidence,
appellant fired the gunshots. In his crossÂexamination, he admits that firing continued for 15Â20 minutes and on coming out of his house, he found
people gathered and, therefore, reached the spot and found deceased Israil Khan lying in a pool of blood.
20)Â Â In view of his evidence as aforesaid, P.W.5 Gopal cannot be said to be eye witness to the incident as according to him, after coming out of
house, on his noticing crowd at the square, out of curiosity he went there and found deceased Israil Khan lying in a pool of blood. His evidence about
hearing noise of firing about 15Â20 minutes is totally unreliable as it does not in any manner corroborate the case of prosecution. In view of his
evidence as aforesaid, learned trial Judge has disbelieved this witness as an eye witness to the incident noting that evidence of P.W.5 Gopal is in a
most casual manner as his evidence does not establish that he had witnessed appellant firing bullets upon deceased Israil Khan and having considered
the fact that his house is situated at a distance of 250 feet from the spot and as according to him, he heard the gunshots while he was in bed and after
hearing such gunshots, out of anxiety claims to have come out of his house and walked distance of 250 feet and having found neighbours gathered at
the square went there and saw deceased Israil Khan lying in the pool of blood, this witness by no stretch of imagination can be said to be an eye
witness to the incident of assault.
21)Â Â In the background of above discussed evidence of witnesses, thus prosecution cannot be said to have established its case beyond reasonable
doubt. Rest of the evidence of P.W.8 Pramod Misal, Ballistic Expert establishing fact of his receiving muddemal articles including gun as well as
empty shells of cartridges and certifying that firing had taken place from the same weapon does not need much consideration as said evidence is not
disputed on behalf of defence nor defence has disputed homicidal death of Israil Khan.
22)Â Â It is material to note that as per injury certificate (Exh. 102), appellant is found to have sustained three injuries on his eyebrow, hand thumb
and elbow in the form of contusion and abrasions, which were said to be possible by hard and blunt object and were caused within 24 hours.
According to the case of prosecution, incident is of 7/5/2012 at about 10.30 a.m. while according to medical certificate, appellant was examined on the
same day at 8 p.m. Therefore, it was necessary for prosecution to explain the injuries sustained by appellant, which are not explained in any manner.
In that view of the matter, there appears much substance when it is contended on behalf of appellant that prosecution has suppressed the genesis in
the present case and having considered the fact that appellant had sustained injuries as aforesaid, possibility of some incident having taken place
immediately prior to the incident in question cannot be ruled out, of which benefit is required to be given in favour of appellant. Thus, the prosecution
has failed to prove its case beyond reasonable doubt. The criminal appeal is, therefore, liable to be allowed.
23)Â Â In the result, the criminal appeal is allowed. The impugned judgment and order dated 22/4/2017 passed by learned Additional Sessions Judge,
Achalpur in Sessions Trial No. 82/2012 is set aside. The appellant is acquitted of the offence charged with. Â The appellant be released forthwith, if
not required in any other case and the fine amount, if already paid, be refunded to him.