Shailendrasinh @ Surubha Rajendrasinh Jadeja vs State of Gujarat

A.L. Dave, J.—The appellant was accused No. 1 before Sessions Court, Rajkot at Gondal in Sessions Case No. 83 of 1996. He came to be tried by the said Court along with his brother Mayursinh Rajendrasinh Jadeja for the offences punishable u/s 302 read with Section 34, Section 307 read with Section 34 of the Indian Penal Code (''IPC'', for short) and Section 25(1)(A) of the Arms Act. The trial Court, while acquitting his brother Mayursinh-original accused No. 2 of all the charges, convicted the appellant for the offences punishable under Sections 302, 307 of IPC and Section 25(1)(A) of the Arms Act. The sessions Court sentenced him to suffer imprisonment for life and to pay fine of Rs. 1000/-, in default to undergo R.I for one month for the offence punishable u/s 302 of the IPC, for the offence punishable u/s 307 of the IPC, the sessions Court ordered him to undergo R.I for five years and to pay fine of Rs. 1000/-, in default to undergo R.I for one month and for the offence punishable u/s 25(1)(A) of the Arms Act, the appellant was ordered to undergo R.I for one year and to pay fine of Rs. 200/-, in default to undergo R.I for eight days. The Court directed that all sentences shall run concurrently and the appellant would be given benefit of set-off. The judgment was rendered on 25.7.2000.

Brief facts of the case are that on 4.3.1996, at about 8 p.m., the villagers had assembled near Gram Panchayat office of village Kalambhadi to celebrate the Holi festival by lighting holy fire. As per the tradition, after the fire is ignited, to make surrounding people know about the igniting of fire, a shot from gun was usually fired in the sky. On the date of the incident, original accused No. 2 and the appellant had gone near the place of the holy fire. Original accused No. 2 had a 12 bore gun with him, which in turn he gave it to the appellant. It is the case of the prosecution that the appellant aimed the gun and fired a shot at one Bahadur Poptatbhai Khant and Bharat Dhusabhai Khant. Bahadur Popatbhai Khant suffered gun shot injury in his chest, due to multiple pallets penetrating his body. Bharat Dhusabhai Khant also suffered a pallet injury. Bahadur succumbed to the gun shot injury on the spot, however, Bharat survived, and he lodged FIR with Pradhyumannagar police station at Rajkot, while he was under treatment at the Government Hospital, Rajkot. On basis of the FIR, the offence was registered and investigation started. The police having found sufficient evidence against the appellant and his brother Mayursinh, filed chargesheet in the Court of learned JMFC, Gondal, who in turn committed the case to the Court of sessions and Sessions Case No. 83 of 1996 came to be registered.

2.1 The sessions Court, after considering the evidence led by the prosecution, consisting mainly of eye-witnesses Bharat Dhusabhai Khant, Exh.16, Keshubhai Popatbhai, Exh.38, Kurji Nathabhai, Exh.40, Khimji Pancha, Exh.48, Bhupendrasinh Mahipatsinh, Exh.49, Dhanji Manji, Exh.50 and Bhimji Savji, Exh.56, besides the evidence of Doctors and FSL Officer, to prove the case, accepted the prosecution evidence against the appellant and recorded conviction as stated hereinabove, but, acquitted original accused No. 2 Mayursinh of all the charges.

The appellant has challenged this judgment and order, recording his conviction, by this appeal. However, State has not preferred any appeal to challenge the acquittal of accused No. 2 Mayursinh.

Learned advocate Mr. Anandjiwala for the appellant submitted that an accident is sought to be and accepted to be an offence at the hands of the appellant. The appellant was at the place to perform his usual duty of firing a gun shot in the sky to declare lighting of holy fire. There was a spark in the woods, which was piled-up by the fire, which hit him on his eye and accidentally the trigger was pressed, and the appellant hit the deceased. This incident is converted into an offence of murder by the first informant and prosecution witnesses, for the reason that the appellant, the only Kshatriya family in the village and since the majority population is of Khant families, and as they wanted to get rid of the appellant''s family, therefore, they have falsely involved both the brothers.

4.1 Learned advocate Mr. Anandjiwala in support of his submissions indicated that if the evidence of eye-witnesses is seen, it is clear that the distance between the appellant and the deceased was atleast 30 feet, whereas, if the medical evidence and FSL evidence is seen, they say that the distance would be much less, which would go to show that the witnesses are not telling the truth. There is charring of skin due to the pallet injuries, which would show that the gun was fired at a close quarter, whereas the eye-witnesses say that the distance was about 30 feet. They may not be therefore, witnesses to the incident. Mr. Anandjiwala submitted that accused No. 2 Mayursinh had deposed before the Court on oath, and from his deposition it emerges that a spark from the wood of holy fire, hit the eye of the appellant, as a result of which the gun was triggered suddenly, which has not been believed by the trial Court.

4.2 Learned advocate Mr. Anandjiwala then submitted that the motive, which is attributed for the incident is also not correct. The incident indicated, had occurred four years prior to the incident, and in between, there has not been any untoward incident. The motive, therefore, is founded on a stale incident.

4.3 Learned advocate Mr. Anandjiwala has drawn our attention to the evidence of first informant Bharat Dhusabhai and Keshubhai Popatbhai to show that their versions before the police about position of the gun, when the fire was shot, is different than what they have deposed before the Court. He, therefore, submitted that on all these grounds, the appeal may be allowed.

We must place on record the fact that learned advocate Mr. Anandjiwala, in all fairness, submitted that it is not possible for him to argue that the gun was not fired by the appellant, but, it was an accident, that is the main bone of contention.

Learned APP Mr. Mengdey has opposed this appeal.

We have examined the record and proceedings in context of what has been argued by rival sides, before us.

Out of the eye-witnesses examined by the prosecution, PW-19 Bhupendrasinh Mahipatsinih, Exh.49, has not supported the prosecution case and has been declared hostile.

8.1 The first witness Bharatbhai Dhusabhai is at Exh.16. He has suffered injury because of one of the pallets hitting him, which would establish his presence at the place. The deposition of this witness runs in multiple pages and has been tested on the touchstone of cross-examination at length, but, nothing specially turns on it. According to him, he was standing by the side of deceased near the holy fire. The appellant and his brother were standing on the opposite side of the fire and he saw the appellant aiming the gun at deceased Bahadur Popatbhai Khant and firing the same. The gun hit the deceased on his chest and he succumbed to the injuries. One of the pallets had hit him, but he survived. About it, he saw blood shed through the wound when he bent down to help the deceased. This version of the eye-witness, that the appellant aimed the gun and fired at the deceased, has not been challenged at all, during lengthy cross-examination. On the contrary, questions in this regard have done the cementing work, when the witness in the cross-examination, has stated in paragraph 14 that he had seen accused No. 1 (appellant) pointing the gun at Bahadur. There was only one sound of fire. He does not know whether it was a double barrel gun. He could see the gun, but not the barrel. Similarly, in the evidence of another eye-witness Keshubhai Popatbhai, Exh.38, he says that the appellant fired a gun at the deceased, causing gun shot injury on his chest, because of which the deceased fell down. From cross-examination, it transpires that a suggestion was made that in the police statement, the witness has stated that the gun was in a vertical position, when it was fired, with its barrel towards the sky. However, the witness in his deposition says otherwise. And in our opinion, there is truth in what the witness says. If the gun had really been fired, when it was pointed at the sky, there would have been no question of the deceased suffering bullet injury. The very fact that the deceased and eye-witness PW-1 has suffered bullet injuries, while they and the appellant were standing opposite each other near the holy fire, would go to mean that when the gun was fired, it was in horizontal position and it was pointed at the deceased. This aspect has been asserted by PW-1 and he has struck to it, despite lengthy cross-examination.

It may be true that there may be some discrepancy about the distance as described by the eye-witnesses, but, fact remains that gun was fired by the appellant and deceased did suffer injury. The injury is caused from a close quarter, as can be seen from the medical evidence, where Doctor says that he had noticed charring marks at the entry point of the pallets. There is another reason to believe this medical evidence, namely that if the distance was more, the pallets would spread over a large area and would cause injuries to more number of persons in a crowd of 150 people, which had gathered at the holy fire. This fact cannot be challenged or doubted, because of some discrepancy about the distance as described by the eye-witness, when there is specific scientific evidence of FSL Ballistic Expert and Doctor.

9.1 Learned advocate also pointed out that though the Doctor says that there were marks of charring at the entry point of the pallets on the body of the deceased, there were no such marks on his clothes, but, when we see the FSL report, Exh.104, we notice that the shirt which the deceased was wearing is a synthetic shirt and if the pallets are hot enough to cause char marks on the skin of the deceased, synthetic cloth would be burnt and would not leave any char marks around the place.

From the above discussion, it is clear that undisputedly, from the above, the gun was fired by the appellant and it has hit the deceased, resulting into his death. One of the pallets hit PW-1 on vital part of the body. Now, the question that arises to be considered is, whether the defence version can be considered. The defence version is that, a spark from the holy fire hit the appellant on his eye, and the gun was accidentally triggered. This is sought to be established through deposition of accused No. 2 Mayursinh, Exh.185. However, we neither find such defence emerging from the evidence nor the accused No. 1, the appellant say anything about such occurrence in his statement u/s 313 of the Code of Criminal Procedure. It is appellant No. 1, who is best person to know and disclose as to how the incident occurred, which he has failed to do and an attempt on the part of accused No. 2 to explain the situation by deposing in the Court can be of no virtue. It is, therefore, not possible to accept the defence version that the gun was fired accidentally.

The result is that the evidence is sufficient to prove that the appellant aimed the gun at the deceased and fired a shot from a powerful 12 bore gun from a close distance. His involvement in the incident, therefore, is established. When a person conversant with the gun, fires such a shot from such a gun, aiming on the chest of person, from a close distance, his intention to cause death of the deceased can legitimately be inferred, and therefore, the trial Court was justified in convicting him for the offence of murder. Similarly, he would have known the consequence of firing a gun in a crowd of about 150 persons and one of the pallets hitting PW-1 Bharat Dhusabhai on a vital part of his body. He is, therefore, rightly convicted for the offence of attempt to murder.

So far as offence under Arms Act is concerned, undisputedly, the appellant does not have any license in his name, nor does he have anything to show that he could have legitimately possessed and/or used the gun. Therefore, he is rightly convicted for the offence punishable u/s 25(1)(A) of the Arms Act.

The trial Court was, therefore, justified in recording his conviction and awarding sentence as stated in the earlier part of the judgment. The appeal is found to be devoid of merits and must fail. The appeal stands dismissed.