Shri. Shivram Shrinathilal Sharma vs The State of Maharashtra

V.K. Tahilramani, J.—This appeal is directed by the appellant-original accused against the judgment and order dated 9.9.2010 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No. 641 of 2009. By the said judgment and order, the learned Sessions Judge convicted the appellant u/s 302 of IPC and sentenced him to RI for life and to pay a fine of Rs. 2000/- in default RI for six months. The prosecution case briefly stated, is as under:

The first informant PW-1 Ravindra was working in the Railway Protection Special Force (RPSF). The appellant and the deceased Udhal Singh were also working in RPSF. On 28.6.2009, the first informant PW-1 Ravindra, the appellant and the deceased were posted at Bandra. At about 10.30 a.m. PW-1 Ravindra was in front of the mess. There was a barrack in front of the mess. The barrack was about 8 feet x 10 feet. The deceased Head Constable Udhal Singh took his tiffin from the mess and went in the barrack. At about 11.45 a.m. the appellant came there. He crossed PW-1 Ravindra and went ahead. The appellant then entered the barrack which was in front of the mess. When the appellant entered the barrack, he was holding Insaas-5.56 rifle. After about 1 and one and half minute after the appellant entered the barrack, PW-1 Ravindra heard the noise of firing. Therefore, his attention was attracted towards the barrack. Thereafter, he saw the appellant coming out from the barrack with rifle and the appellant went towards the main barrack. PW-1 Ravindra went inside the barrack in which the deceased had gone. He saw the deceased Udhal Singh lying on his bed facing the roof. There were a number of injuries on his chest. Nobody was present in the barrack. PW-1 Ravindra came back and told his superior PW-2 Shri. Jat and showed him the place where the deceased was lying. Thereafter, PW-1 Ravindra and PW-2 Jat went towards the main barrack. PW-2 Jat asked the appellant why he shot Udhal Singh, whereupon the appellant replied that "Maine Mar Diya, Mar Diya". Then PW-2 Jat asked the appellant about his rifle and he showed his rifle by pointing out finger towards the window. PW-2 Jat kept three constables to keep watch on the appellant and he informed Nirmal Nagar Police Station. Police came to the spot and recorded the F.I.R. (Exh. 13) of PW-1 Ravindra. Thereafter, investigation commenced. The appellant was apprehended from the main barrack. Rifle came to be seized. The dead body of Udhal Singh was sent for post-mortem. PW-8 Dr. Dere performed the post mortem on the dead body of Udhal Singh. He found the following injuries on the dead body of Udhal Singh

(1) WOUND OF ENTRY of 2.5 x 2.5 cm over left chest upper part, over right clavicle medial aspect, 0.5 cm from sternoclavicular joint. Blackening, charring, contusion collar present with STAR LIKE INJURY (CONTACT SHOT).

TRACT OF WOUND-directed towards left through anterior mediastinum, 1st left intercostal space, upper lobe of lungs (left aspect) #. C5 vertebrae coming out through intra-scapular region. Tract hemorrhagic and lacunars. (ALUMINIUM tip) Recovered from supraclavicular region.

(A) WOUND OF EXIT: of 7 x 6 cm over left intra-scapular 12 cm below C2 edges everted bleeding present.

(2) WOUND OF ENTRY: of 2 x 2 cm, 4 cm below injury no. 1, at 12.30 O''clock of right nipple. Blackening charring contusion collar (CONTACT SHOT)

TRACT: directed towards left through anterior mediastinum 2nd inter costal space, piercing lung left and right # D1 vertebrae entry through wound of exit.

(B) WOUND OF EXIT of 5 x 3 cm 3 cm away from injury No. (A) towards midline edges everted.

(3) WOUND OF ENTRY: of 0.5 x 0.5 cm., 3 cm away from injury No. (2), Blackening, charring contusion collar present (Near shot).

TRACT: directed towards left through mediastinum, 4th intercostal space, piercing lung, # of D2 vertebrae, everting through wound of Exit, Tract hemorrhagic and lacerated.

(C) WOUND OF EXIT: of 4 x 2 cm, 2mm away from Injury No. (B), edges everted.

(4) WOUND OF ENTRY: of 2 x 2 cm over right lumbar region, at 6 cm away from umbilicus at 10 O''clock portion (umbilicus), STARLIKE INJURY (CONTACT SHOT) with (blackening, charring)

TRACT directed backwards medially, piercing intestine mesentery tract hemorrhagic and lacerated.

(D) WOUND OF EXIT: 3 x 2 cm, 4 cm medial to injury No. (C). 2 cm. away from spine towards right at L2 vertebrae/level.

According to Dr. Dere, the cause of death was "hemorrhagic shock following fire arm injury (unnatural)". The rifle and empty cartridges found on the spot, were sent to the Chemical Analyser. After completion of investigation, the charge sheet came to be filed against the appellant.

Charge came to be framed against the appellant u/s 302 of IPC and u/s 3 read with Section 25(1-B) of the Arms Act, 1959. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge acquitted the appellant of the offence u/s 3 read with Section 25(1-B) of the Arms Act, however, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal.

We have heard the learned Advocate for the Appellant and the learned A.P.P. for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant fired at Udhal Singh and caused his death.

There are no direct eye witnesses to the incident and the case is based on circumstantial evidence. In order to prove that it was the appellant who caused the death of Udhal Singh, the prosecution has placed reliance on the evidence of PW-1 Ravindra. Ravindra has stated that on 28.6.2009 he was posted at Bandra. He was on duty in front of the mess and barrack area from 8 a.m. to 4 p.m. At about 10.30 a.m. he was in front of the mess. At that time, Head Constable Udhal Singh (the deceased) took his tiffin from the mess and went in the barrack. The barrack was in front of the mess. At about 11.45 a.m. the appellant came there. He crossed PW-1 Ravindra and went ahead. The appellant then entered in the barrack which was in front of the mess. At that time, the appellant was holding a rifle. After about 1 and one and half minute, PW-1 Ravindra heard noise of firing. Hence, his attention was attracted towards the barrack. He saw the appellant coming out from the barrack with rifle. The appellant then went towards the main barrack. PW-1 Ravindra entered into the barrack from where he heard the noise of firing. He saw that Head Constable Udhal Singh was lying on his bed facing roof and there were injuries on his chest. Nobody was present in the barrack. Then PW-1 Ravindra informed his superior, who intern, informed Nirmal Nagar Police Station. Police came to the spot. Thereafter, F.I.R. of PW-1 Ravindra was recorded. Thus, the evidence of PW-1 Ravindra shows that there was no one present in the barrack except Udhal Singh and thereafter, the appellant entered into the barrack. From the evidence of PW-1 Ravindra, it is seen that the barrack was approximately 10 feet x 8 feet, when he entered the barrack, no one was present in the barrack and just prior to hearing of noise of firing, the appellant went into the barrack with rifle. After the noise of firing was heard, the appellant was seen coming out from the barrack with the rifle. The evidence of PW-1 Ravindra excludes the possibility of any other person entering the barrack and firing on Udhal Singh. The evidence of PW-6 Amol Pawar who is the Ballistic Expert, excludes the possibility of suicide. The evidence of PW-8 Dr. Dere shows that the injuries sustained by the deceased, were not possible during a scuffle between two persons. Four shots had been fired at the deceased from point blank range. The evidence on record excludes the possibility of any other person firing at Udhal Singh. PW-1 Ravindra has categorically stated that the deceased did not have any rifle with him at the time of the incident. This rules out the possibility of the deceased accidentally or otherwise shooting himself with his own weapon.

In addition, the prosecution is also relying on the evidence of PW-2 Shri. Jat. This witness has stated that on 26.8.2009 at 11 a.m. PW-1 Ravindra came to him and told him that the appellant had fired at Udhal Singh in barrack no. 19, hence, he went with PW-1 Ravindra to the spot. He saw that Udhal Singh was lying on the ground facing towards roof. There were signs of bullet injuries on his chest and blood was oozing. His tiffin was seen open and empty cartridges were seen lying on the ground. PW-2 Jat saw the appellant was sitting in guard room. He asked the appellant why he had shot at Udhal Singh, whereupon, the appellant replied "Maine Mar Diya, Mar Diya". This shows that extra judicial confession was made by the appellant to PW-2 Jat. The evidence of PW-2 Jat also shows that when he saw the appellant for the first time sitting in the barrack, the appellant was very nervous.

The evidence of PW-4 Ramsingh shows that on 28.6.2009 he had given Insaas 5.56 MM rifle, Arsenal No. 18036374 plus three magazines plus 60 rounds to the appellant. He had taken entry of Arms and Ammunition given to the appellant in the Arms and Ammunition Register. Register Exh. 20 also bears out the fact that the rifle was given on 28.6.2009 at 7.50 a.m. to the appellant. The evidence of Ballistic Expert and the Ballistic Report shows that the weapon had been used for firing prior to its receipt in the Laboratory. As per the C.A. Report (Exh. 28), empty cartridges which were found on the spot, tallied with the cartridges which were test fired from the rifle in the forensic laboratory. The Ballistic Report shows that all the shots had been fired at the deceased from a very close range. This shows that the appellant had fired at the deceased from point blank range.

As per the evidence of PW-6 Amol Pawar Ballistic Expert, suicide has been ruled out and the evidence of PW-8 Dr. Dere has ruled out the possibility of all injuries being caused to the deceased during a scuffle. In the facts and circumstances, the only possibility that remains is that it is a case of homicidal death. Mr. Sait, the learned advocate for the appellant submitted that it is a case of accidental firing. However, as far as this aspect is concerned, the conduct of the appellant is not in consonance with a case of accidental firing. Had it been a case of accidental firing, the appellant would have immediately rushed out of the barrack and sought help or sought to get immediate medical attention for the deceased. However, he has not done so and he has actually walked away towards the main barrack. Moreover, it is seen that the deceased had four bullet entry wounds. There were four entry wounds. The weapon which was allotted to the appellant was capable of firing one shot at a time or three shots at a time in burst mode. If it was a case of accidental firing, the deceased would have received either one shot if the weapon was placed in single shot mode or three shots if the weapon was placed in burst mode. However, it is seen that the deceased had sustained four bullet entry wounds. The four injuries were entry wounds. This shows that weapon had been fired minimum of two times i.e. assuming that the weapon was placed in burst mode when three shots were fired and thereafter in a single shot mode, when one shot was fired or four shots were fired in single shot mode. This shows that the weapon was fired at least twice. This would rule out a case of accidental firing because in case of accident, the weapon would fire only once and not repeatedly. If the weapon fired in burst mode it would have led to either one injury or three injuries but not four injuries. The fact that four injuries were sustained by the deceased, clearly rules out a case of accidental firing.

Mr. Sait submitted that the appellant has been falsely implicated in this case by way of an after thought. To support this contention, he pointed out that the police were informed an hour after the incident. He submitted that this delay raises a grave doubt in relation to the veracity of the prosecution case. As far as this aspect is concerned, it is seen that PW-1 Ravindra had seen the appellant going into the barrack where the deceased was sitting, thereafter, he heard noise of firing. then he saw the appellant coming out of the barrack, then PW-1 Ravindra entered the barrack and saw that Udhal Singh was lying on the bed with bullet injuries on his chest. Thereafter, PW-1 Ravindra informed his superior i.e. PW-2 Shri. Jat. Shri. Jat then came to the spot and saw Udhal Singh lying with bullet injuries on his chest. He then went to his cabin and informed about the incident to his superior. Then PW-2 Shri. Jat went to the place where the appellant was sitting in the guard room. He made enquiries with the appellant as to why he had shot at Udhal Singh, the appellant replied that "Maine Mar Diya, Mar Diya". Then PW-2 Shri. Jat made enquiries with the appellant about the rifle, whereupon, the appellant pointed out his finger towards the window. Then PW-2 Jat left three constables to keep watch on the appellant and thereafter he informed the police station. All these events would take sometime and hence, we find that in the facts of the present case, delay of one hour in informing the police station, is no delay at all. Thus, we find no merit in this submission that as there is time gap of an hour in informing the police it shows that the appellant has been falsely implicated in the present case.

The prosecution is relying on one more aspect to connect the appellant with the crime. The aspect is that at the time of arrest, the clothes of the appellant were found blood stained. They were seized. It is to be noted that the appellant was arrested soon after the incident. The C.A. Report (Exh. 29) shows that the pant of the appellant bore blood stains of ''B'' group. The clothes of the deceased were also stained with blood of ''B'' group. This shows that the blood of the group of the deceased was found on the pant of the appellant. This is another strong incriminating factor which goes against the appellant. PW-5 panch witness Naresh has deposed about the seizure of the clothes of the appellant.

Thereafter, Mr. Sait submitted that the name of the appellant is "S. Sharma" and there was one another "S. Sharma" who was also allotted similar rifle on that day, hence, it is possible that there was a mistake in identity. As far as this aspect is concerned, the evidence of PW-4 Ramsingh shows that he had given Insaas 5.56 MM rifle, Arsenal No. 18036374 to the appellant on 28.6.2009 and the register shows that "S.N. Sharma" was allotted rifle No. 18036389. Moreover, it is pertinent to note that the appellant in his statement u/s 313 of Cr.P.C., has admitted that the said rifle was allotted to him on the day of the incident. The evidence of Ballistic Expert shows that the cartridges of bullets which were fired at the deceased, tallied with the cartridges which were test fired from the weapon which was allotted to the appellant.

Thereafter, Mr. Sait submitted that the relations between the appellant and the deceased were good and they were friends, hence, there was no motive for the appellant to have committed the crime. He submitted that in a case of circumstantial evidence, motive assumes great significance. No doubt, this is so. But, motive is such that it is locked up in the mind of the accused and sometimes, it is difficult to unlock the same. The Supreme Court in the case of Mulakh Raj, etc. Vs. Satish Kumar and others, , has observed in para 17 as under:

Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved.

Thus, in view of the above decision, it is clear that in a case based on circumstantial evidence, even in absence of proof of motive, conviction can be imposed.

Thus, it is a case of circumstantial evidence and the evidence is such that it excludes any possibility of any third person having fired at the deceased and the evidence on record clearly shows that it was the appellant alone who was responsible for the firing at the deceased.

In the result, we find no merit in the appeal and the appeal is dismissed.

Office to communicate this order to the concerned prison Authorities and to the Appellant who is in jail.

Writ of Order be expedited. At this stage, we must record our appreciation for Advocate Mr. Arfan Sait who is on the High Court Legal Services Committee and who was appointed by us to represent the appellant in this appeal. We found that he had meticulously prepared the matter and he has very ably argued the appeal. We quantify total legal fees to be paid to him in this appeal by the High Court Legal Services Committee at Rs. 2500/-.