State of Rajasthan v. For

stated that the appellant fired with a country made pistol (katta) but it misfired. The accused came again with katta and inflicted fire arm injury on the chest of the deceased. After hearing the screams Jagdish Kumawat, Danaram Gurjar and Bhagwandas Swami reached the spot and took the deceased to Government Hospital, Phulera from where he was referred to SMS Hospital, Jaipur. During treatment deceased succumbed to injuries on 21.05.2015. The postmortem was conducted and cause of death was shock, as [2025:RJ-JP:31430-DB] (3 of 15) [CRLAD-196/2020] a result of ante mortem peritonitis which was due to injury No.1, sufficient to cause death in ordinary course of nature. The injury No.1 was gun shot punctured lacerated wound of size 1 x 1 cm on lower part of sternum in center. Dissection revealed underlying hematoma with a track directed downwards and laterally upto anterior wall of stomach. After filing of charge-sheet, the charges were framed against the appellant for offences under Sections 307, 302, 120B IPC and 3/25 of the Arms Act and charges against other co-accused Sunil Kumar and Deva @ Thawar were framed for offences under Sections 302 read-with Section 34 and 120B IPC.

3. The prosecution examined twenty eight witnesses and exhibited forty seven documents to prove the case. In statement recorded under Section 313 Cr.PC, the appellant took defence of alibi and stated it to be a case of false implication. In defence, three witnesses were examined and eleven documents were exhibited. The trial court after considering the facts and appreciating the evidence adduced, acquitted Sunil Kumar S/o Ramsharan and Deva @ Thawar S/o Late Hajarilal but convicted the appellant. Hence, the present appeal.

4. It is contended that as per the deposition of PW-15 Dr. Rahul Mittal of Government Hospital, Phulera the condition of the deceased was critical and was not even in a position of [2025:RJ-JP:31430-DB] (4 of 15) [CRLAD-196/2020] taking thumb impression. On reaching the SMS hospital, Jaipur the parchabayan was recorded at 11:50 PM and thereafter deceased was operated at midnight 12:00 O’ clock. The contents of the parchabayan are argued to be unreliable as the deceased was not medically fit for recording of the statement. It is further argued that PW-19 Satyanarayan had not recorded the statement in his own hand.

4.1 Learned counsel for the appellant contends that the parchabayan/statement is a manipulated document. Not only the statement bears signature of deceased but also the police proceedings done at 4:30 AM of 20.05.2015 whereas the deceased underwent surgery at 12:00 O’ clock in the intervening night of 19.05.2015. The variation in parchabayan and statements of PW-28 Investigating Officer (‘IO’) and PW-19 Satyanarayan, ASI are relied upon to contend that there are loopholes in the prosecution story as to who took the deceased to the Government Hospital at Phulera and thereafter to the SMS hospital, Jaipur.

4.2. It is submitted that there is a delay in lodging the FIR. Contention is that in the cross examination recovery witness PW-19 Satyanarayan, ASI stated that the katta was recovered from the almirah, lock of which was opened by the appellant, however, there is no reference to the recovery of the keys. [2025:RJ-JP:31430-DB] (5 of 15) [CRLAD-196/2020]

4.3. Submission is that the appellant on the date of incident was attending the marriage ceremony of daughter of aunt of DW-1 Naresh Kumar Kumawat and the defence was wrongly rejected.

5. Per contra out of three eye witnesses two had seen the appellant shooting the deceased and third one had seen the appellant running with the katta in his hand. It is averred that the contents of the parchabayan of the deceased is in consonance with the testimonies of the prosecution witnesses.

5.1 It is argued that the katta, empty shell and live cartridge were recovered at the instance of the appellant from his room. Forensic Science Laboratory reports clearly reflect that the weapon recovered was serviceable and an empty shell 8mm K.F. cartridge and the soft nose copper jacketed bullet were fired from the recovered katta.

6. Heard counsel for the parties and perused the record with their able assistance.

7. On 19.05.2015 the parchabayan of the deceased was recorded, wherein it was stated that the appellant fired at the chest of the deceased with a katta. The deceased was taken to the Government Hospital, Phulera by Jagdish Kumawat, Danaram Gurjar and Bhagwandas Swami in a jeep. [2025:RJ-JP:31430-DB] (6 of 15) [CRLAD-196/2020]

8. PW-15 Dr. Rahul Mittal Medical Officer deposed that deceased was brought to the Government Hospital, Phulera and there were two puncture injuries to the deceased. The first was gunshot puncture injury lacerated wound of size 1 x 1 cm on lower part of sternum in center and the second puncture injury lacerated wound of size 0.7 x 0.7 cm on the left side of the lower back region. Further that considering the condition, the deceased was referred to the SMS Hospital, Jaipur.

9. PW-25 Dr. Darpan attended the deceased in Trauma Center of SMS Hospital, Jaipur and deposed that deceased had sustained two injuries from a gunshot and it was certified by him that the deceased was fit for recording of the statement.

10. PW-27 Dr. Mohit Kumar Jain, Surgeon of SMS Hospital, Jaipur stated that the deceased was taken to the operation theater at 12:00 AM on 20.05.2015 and gave the details of damage caused by the bullet.

11. PW-1 Bhagwandas testified to have seen appellant after the incident running with katta and the deceased told that the appellant shot him. It was stated that Jagdish, Dhadu, Bhagwan Gurjar and Poorandas Ji Maharaj took the deceased to the hospital. PW-1 was also witness to the [2025:RJ-JP:31430-DB] (7 of 15) [CRLAD-196/2020] recovery memo of the blood stained stone, marble, blood stained bullet and clothes of the deceased.

12. PW-2 Jagdish Kumawat testified that he saw the appellant shooting the deceased with katta and fleeing the spot from the passage towards khaakh chowk along-with the weapon. It was reiterated that PW-2 along-with PW-3 Danaram @ Dhadu Gurjar and PW-6 Bhagwan Gurjar took the deceased to the hospital.

13. PW-3 Danaram stated that he witnessed the appellant shooting the deceased when the deceased was having food sitting on the floor. Further that he along with PW-1 and PW-2 took deceased to the Government Hospital, Phulera.

14. PW-5 Ramchandra, PW-8 Mohanlal Kumawat, PW-10 Subhash, PW-11 Rajeshdas Swami and PW-18 Kailashchand are formal witnesses. PW-6 Bhagwan Gurjar supported the presence of Danaram Gurjar, Jagdish and Bhagwandas on the spot at time of incident. PW-14 Premdas Swami deposed that he had seen the appellant on

17.05.2015 carrying a weapon. PW-12 Dr. Dhruv Singh was member of the medical board and conducted postmortem.

15. On 20.05.2015 the appellant was arrested and on

22.05.2015 at the instance of the appellant country made pistol was recovered from almirah in his room. The recovery memo (Ex.P.6) has two witnesses Bhagwandas Swami and [2025:RJ-JP:31430-DB] (8 of 15) [CRLAD-196/2020] Prakash Singh. Ex.P.-19 is recovery memo whereby at the instance of appellant, one live cartridge 8mm K.F. and one empty shell marked as ‘F’ hidden under the bedding were recovered from the room of the appellant. From the spot of the incident a blood stained used bullet marked as ‘C’ was recovered in the presence of Bhagwandas and Danaram @ Dhadu Gujjar, fard is marked as Ex.P.3.

16. It would be relevant to quote the operative portion of ballistic report:- Description of Articles Packet ‘C’ contained— One 8mm/.315” soft nose copper jacketted bullet, marked ‘B/1’. Packet ‘E’ contained— One 8mm/.315” country made pistol, marked ‘W/1’. Packet ‘F’ contained— (i) One 8 MM K.F. cartridge, marked ‘L/1’ (ii) One 8 MM K.F. cartridge case, marked ‘C/1’ Packet ‘Unmarked (MO)’ in clots (Liquid blood) as per M.O. Note:- Two sealed packets ‘C’ & ‘Unmarked (M.O.)’ were first sent to Serology, Division for blood examination. After blood examination exhibits from packets ‘C’ & ‘Unmarked’ (M.O.) were received back for ballistic examination. Result of Examinations

1. One 8mm/.315 country made pistol (W/1) from packet ‘E’ is a serviceable firearm. 2. The chemical examination of barrel residue indicates that submitted 8mm/.315” country made Pistol (W/1) had been fired. However, the definite time of its last fire could not be ascertained. [2025:RJ-JP:31430-DB] (9 of 15) [CRLAD-196/2020] Based on comparison microscopic

3. examination it is the opinion that:- (i) One 8MM K.F. cartridge case (C/1) from packet ‘F’ has been fired from submitted 8mm/.315” country made pistol (W/1) from packet ‘E’. (ii) One 8mm/.315” soft nose copper jacketted bullet (B/1) from packet ‘C’ has been fired from submitted 8mm/.315” country made pistol (W/1) from packet ‘E’. 4. On the chemical examination of exhibit from packet ‘Unmarked (M.O.), no gun shot residue or residues of powder charge could be detected. 5. One 8 MM K.F. cartridge (L/1) from packet ‘F’ is a fireworth ammunition and it was also test fired from submitted 8mm/.315” country made pistol (W/1) from packet ‘E’ in the laboratory.”

17. Ballistic report clearly reveals that the empty shell and bullet were fired from the recovered katta.

18. The recovery memos Ex.P.3, Ex.P.6 and Ex.P.19 are for recovery of bullet, katta, empty shell and live cartridge respectively. Further Ex.P.-45 & Ex.P.-46 FSL reports along- with deposition of eye witness PW-1 to PW-3 proved the possession and use of katta by the appellant.

19. The IO supported the case of the prosecution and deposed about receiving information and proceedings initiated thereafter. The procedure followed for recovery of the blood stained bullet, stone and marble from the spot of the incident and the recovery of katta, empty shell and live cartridge made at the instance of the appellant was given in detail. [2025:RJ-JP:31430-DB] (10 of 15) [CRLAD-196/2020]

20. The appellant took defence of alibi. DW-1 Naresh Kumar Kumawat was examined to prove that on 19.05.2015 the appellant around 06:30 PM had come along-with Ramanand Ji Maharaj at the marriage of daughter of aunt of DW-1. Ramanand Ji Maharaj came in a vehicle driven by the appellant and stayed there for over two hours. Further that photographs of the marriage ceremony were taken. Law is settled that onus to substantiate defence of alibi is on accused. Reference in this regard be made to the decision of the Supreme Court in Binay Kumar Singh Vs. State of Bihar reported in [(1997)1 SCC 283] wherein the Court held that:- “23………The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that in [2025:RJ-JP:31430-DB] (11 of 15) [CRLAD-196/2020] such circumstances, the burden on the accused is rather heavy.”

21. In case defence of alibi is found to be false, it strengthens the circumstances against the accused. Reference in this regard be made to the decision of the Supreme Court in Ashok Verma Vs. State of Chattisgarh reported in [2024 INSC 1011] wherein the Court held that:- “14. The effect of false plea of alibi was considered by this Court in Babudas v. State of M.P. and in G. Parshwanath v. State of Karnataka. In G. Parshwanath’s case, this Court held that when the accused gave a false plea that he was not present on the spot, his statement would be regarded as additional circumstance against him strengthening the chain of circumstances already found firm.”

22. The appellant failed to substantiate the defence of alibi. The witness DW-1 Naresh Kumar stated that the appellant along-with Ramanand Das ji Maharaj had come to attend the marriage of daughter of his aunt. Ramanand Das ji Maharaj was important witness but was not examined. DW-1 was neither remembering the registration number of the scooty on which he went to receive Maharaj nor that of the vehicle driven by the appellant in which Ramanand Das had come. Further no photographs clicked in marriage showing presence of appellant were produced inspite of the deposition that the appellant remained there for more than two hours, hence, DW-1 was not reliable witness. On the other hand [2025:RJ-JP:31430-DB] (12 of 15) [CRLAD-196/2020] overwhelming evidence of contents of parchabayan, the deposition of PW-1, PW-2 & PW-3, IO and both the doctors PW-15 Dr. Rahul Mittal and PW-25 Dr. Darpan have supported the case of the prosecution. The evidence to prove the plea of alibi is not worth acceptance to doubt the presence of the appellant at the time of incident.

23. The contention of learned counsel for the appellant that contents of the parchabayan are not reliable as the deceased was not medically fit for giving the statement, is noted to be rejected. It is not disputed that before recording of the statement, Dr. Darpan, SMS Hospital, Jaipur had given a certificate (Ex.P.22) of fitness of deceased for recording statement and Dr.Darpan was examined as PW-25 and he withstood cross-examination.

24. The argument that at Government Hospital, Phulera condition of the deceased was such that even his thumb print could not be taken and the condition improved on reaching SMS Hospital, Jaipur to extent that statement was recorded need not be dilated upon once the doctor had certified that the deceased was fit for recording of the statement.

25. The submission that parchabayan is a manipulated document as there are signatures not only on the statement but also on the police proceedings recorded at 4:30 AM on

20.05.2015 whereas the deceased had undergone surgery at [2025:RJ-JP:31430-DB] (13 of 15) [CRLAD-196/2020] 12:00 AM on 20.05.2015, does not enhance the case of the appellant. No suggestion in this regard was put to doctors deposing in trial. There is nothing on record to show exact time the surgery took and time taken by the deceased in regaining consciousness after the surgery.

26. The contention by learned counsel for the appellant that there is variation in contents of the parchabayan, the statement of PW-19 Satyanarayan, ASI and the IO, viz-a-viz, the person who had taken the deceased to the Govt. Hospital, Phulera and thereafter to the SMS Hospital, Jaipur shall not prove fatal to the story of the prosecution, moreover with the passage of time minor discrepancies are bound to come.

27. Another aspect to be considered is that this variation is not denting the story of the prosecution in view of the statement of three eye witnesses and the recoveries made at the instance of the appellant.

28. The contention raised that PW-19 Satyanarayan had not recorded the statement in his own hand, has no merit. It is not disputed that the statement was recorded in the presence of Satyanarayan and bears his signature. PW-19 asserted that on his instructions the statement of deceased was recorded by Constable Ramchandra Belt No.719.

29. The objections that there is a delay in lodging the FIR, lacks merit. The incident is about 07:45 PM on [2025:RJ-JP:31430-DB] (14 of 15) [CRLAD-196/2020]

19.05.2015. The parchabayan was recorded at 11:50 PM on

19.05.2015, the police proceedings were recorded at 04:30 AM on 20.05.2015 and FIR was lodged at 06:15 AM on

20.05.2015.

30. The recovery of katta, empty shell and live cartridge, on disclosure made under Section 27 of Indian Evidence Act and after following the procedure as per law cannot be doubted merely for the reason that on suggestion made during cross examination PW-19 Satyanarayan had not given details of recovery of keys of almirah. The credibility of recoveries is fortified by the fact that:- (i) the disclosure of statements are signed by the appellant; and (ii) recovery memos and site plan of recovery are not only signed by the appellant but also by IO and two witnesses.

31. The parchabayan of the deceased was recorded after the doctor certified that deceased was fit for recording of the statement and it was stated that the appellant had shot him with a katta. PW-1 Bhagwan Das had seen appellant running from the spot with katta in his hand and deceased had told Bhagwan Das that appellant had shot him. PW-2 Jagdish Kumawat and PW-3 Danaram were eye witnesses and deposed to have been seen the appellant shooting the deceased with katta and identified the appellant in court. PW- 15 Dr. Rahul Mittal and PW-25 Dr. Darpan testified that the [2025:RJ-JP:31430-DB] (15 of 15) [CRLAD-196/2020] deceased had suffered injuries by gunshot. There was blackening around the injury caused by gunshot. The katta, empty shell and live cartridge were recovered at instance of the appellant from his room. The blood stained bullet with soft nose copper head was recovered from the spot. The FSL report Ex P-46 is to the effect that stain on the bullet was of human blood; the katta was in working condition; and the empty shell and bullet were fired form the recovered katta. The cause of the death as per the PMR EX P-18 was shock as result of gunshot injury, sufficient to cause death in ordinary course. It is mentioned that on dissection a path was found between injury on the chest and at lower back. The chest wound was the entry of the bullet and exit was from injury on side of lower back. The appellant failed to prove alibi. The prosecution proved the case beyond reasonable doubt

32. The well reasoned judgment of conviction passed after appreciating the evidence and considering the facts suffers from no factual or legal error calling for interference in appeal. The appeal is dismissed and judgment of conviction and order of sentence are upheld. (BALJINDER SINGH SANDHU),J (AVNEESH JHINGAN),J Himanshu Soni/Riya Reportable:- Yes