State of Rajasthan through P.P v. For

Judgment

: :: 04/09/2025 18/09/2025 Mukesh Kumar S/o Man Singh (hereinafter referred to as ‘appellant’) is in appeal against the judgment dated 20.08.2018 passed by learned Special Judge Dacoity Effected Area, Bharatpur in Session Case No.21/2018 convicting the accused-appellant under sections 302, 307 IPC and 3/25 of Arms Act. Vide order of even date, the appellant was ordered to undergo sentence as under:- Name of the accused- appellant Conviction Sections Mukesh Kumar S/o 302 IPC Punishment Life imprisonment and to pay fine of Rs.10,000/-. [2025:RJ-JP:35406-DB] (2 of 12) [CRLAD-313/2018] Man Singh 307 IPC 3/25 Arms Act In default of payment of fine to undergone three months rigorous imprisonment rigorous Ten imprisonment and to pay fine of Rs.10,000/-. In default of payment of fine to undergone three months rigorous imprisonment rigorous Three imprisonment and to pay fine of Rs.5,000/-. In default of payment of fine to undergone two months rigorous imprisonment

2. The case as setup by the prosecution is that on complaint of

PW-1 Chandrabhan FIR No.159/2016 was registered at Police Station Atalbandh, Bharatpur on 30.06.2016. As per the complaint, Prakash (hereinafter referred to as ‘deceased’) and PW-2 Hariram, father of the deceased were sitting on the shop when Mukesh Chand Jatav (hereinafter referred to as ‘appellant’), Tuhiram, Ramprakash, brother-in-law of Tuhiram (sala) and Satyaprakash came to the shop armed with a country made pistol. Tuhiram caught the deceased, the appellant fired and the bullet hit the jaw of the deceased. The appellant again fired at Mahesh, but it missed and thereafter four to five rounds were fired by the appellant in the street. The appellant also shot at PW-4 Mundra (wife of the appellant) and injured her. It was stated that PW-3 Akash, PW-7 Smt. Premwati, PW-8 Rohit, PW-9 Pinki and PW-10 Saurabh witnessed the incident. The injured were taken to the hospital on 30.06.2016 and the deceased succumbed to injuries on 06.07.2016. The post-mortem was conducted on 07.07.2016 and the cause of the death was ‘COMA’ as a result of anti-mortem gun shot injuries on neck and face region, sufficient to cause [2025:RJ-JP:35406-DB] (3 of 12) [CRLAD-313/2018] death in ordinary course of nature. The appellant was arrested on

30.06.2016 and the arrest and personal search memo is Ex. P.17. On the disclosure of the appellant u/s 27 of the Indian Evidence Act, 1872 (for short ‘1872 Act’) one 12 Bore, country made pistol (hereinafter referred to as ‘Katta’), three live cartridges and one empty cartridge shell were recovered. After filing of challan, charges against the appellant were framed u/s 341, 323, 307, 302 IPC & 3/25 of the Arms Act.

2.1. The prosecution examined eighteen witnesses and exhibited twenty seven documents to prove the case. In the statement recorded u/s 313 Cr.P.C., appellant claimed to be innocent and stated it to be a case of false implication. In defence seven documents were exhibited. The trial Court convicted the appellant and hence, the present the appeal.

3. Learned counsel for the appellant submits that the prosecution failed to prove the case beyond reasonable doubt that the appellant had killed the deceased with the recovered katta. Contention is that the recovery of katta itself is doubtful. The contention is fortified by relying upon the fact that one of the recovery witnesses turned hostile and deposition of prosecution witnesses PW-2 Hariram are to the effect that the katta and empty shell of cartridge were handed over by Tuhiram to the Police at the spot of the incident.

3.1. By placing reliance on the deposition of PW-12 Motiram (Maalkhana incharge) it is argued that the Maalkhana register was a manipulated document, wherein entries were erased by applying white fluid and no initials were put by the official and the sealed [2025:RJ-JP:35406-DB] (4 of 12) [CRLAD-313/2018] bottle deposited contained only one pellet whereas as per the deposition of doctor, the pellets were sealed in bottle recovered from neck and face of the deceased.

3.2. The submission is that five packets were sent to Forensic Science Laboratories (FSL) vide two receipts (Ex.P.12 and Ex.P.24) dated 14.09.2016 and 16.09.2016, but as per FSL report dated

25.10.2016 (Ex.P.25) only three packets (A, A-1 & C) were received.

3.3. The submission is that the eye-witnesses PW-4 Mundra, PW-5 Bheema & PW-6 Shivdei turned hostile and presence of PW-9 Pinki and PW-10 Saurabh on the spot at the time of incident is doubtful.

3.4. Reliance on ballistic report is challenged on the ground that in absence of material details mentioned by the Investigating Officer with regard to procedure adopted for sealing and sending the pellets recovered from the body of the deceased, the report is unreliable.

3.5. Lastly, it is argued that from the post-mortem report (‘PMR’), it is evident that the pellets were not extracted from the body of the deceased. Contention is that pellets remained in the body of the deceased for six days and the death was caused due to medical negligence.

4. Learned counsel for the appellant has placed reliance on the following decisions:

1. Aslam Alias Imran Vs. State of Madhya Pradesh reported in 2025 INSC 403. [2025:RJ-JP:35406-DB] (5 of 12) [CRLAD-313/2018]

2. Peeru Lal & Anr. Vs. State of Rajasthan in D.B.Criminal Jail Appeal No.12/1986 decided on

31.10.1986.

3. Harchand Singh & Anr. Vs. State of Haryana reported in (1974) 3 SCC 397.

4. State of Rajasthan Vs. Abdul Jabbar and other connected matter cited in 2024:RJ-JD:33521-DB

5. Vinod @ Nasmulla Vs. State of Chhattisgarh reported in 2025 INSC 220.

5. Learned Public Prosecutor submits that the eye witnesses supported the case of the prosecution and testified that the appellant shot the deceased with the katta. Post-Mortem Report (PMR), FSL and ballistic report are relied upon to fortify that the prosecution proved beyond reasonable doubt that the appellant killed the deceased with the recovered katta.

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

7. In the complaint it was mentioned that PW-1 Chandrabhan, PW-3 Akash, PW-7 Smt. Premwati and PW-8 Rohit were present at the spot when incident took place. These eye-witnesses were examined by prosecution and they have consistently supported the case of the prosecution, withstood the cross-examination and are reliable witnesses.

8. PW-1 Chandrabhan (complainant) supported the case of the prosecution by giving details in deposition with regard to the incident and specifically stating that the appellant had shot the deceased with a katta. Further that the appellant inflicted gun shot injury upon shoulder of his wife Mundra. [2025:RJ-JP:35406-DB] (6 of 12) [CRLAD-313/2018]

9. PW-3 Akash deposed to have seen the appellant shooting the deceased with a katta. PW-7 Smt. Premwati (mother of the deceased) in her statement before the Police and during examination before the trial Court, unequivocally narrated to have witnessed the incident, wherein the appellant shot the deceased. To similar effect was the statement of PW-8 Rohit, PW-10 Saurabh and all these witnesses withstood the cross-examination.

10. PW-14 Mahesh who was shot upon by the appellant but the bullet got stuck has testified the entire incident and proved the case of the prosecution that the appellant fired at the deceased and wife of the appellant Mundra.

11. Ex. P.14 PMR provides details of the injuries sustained by the deceased. The injuries included punctured lacerated wound on the face and neck region and the presence of multiplepellets. The PMR specifically mentions the pellets recovered from the neck and face region of the deceased were sealed in a bottle and handed for sending to FSL. The cause of death was ‘COMA’ as a result of anti- mortem gun shot (projectile fire arm) injuries on neck and face region and the consequence of it sufficient to cause death in ordinary course of nature. The PMR is that the gun shot injuries sustained by the deceased were fatal.

12. Ex. P.37 Ballistic report dated 31.03.2017 is to the effect that the recovered katta was in working order and that the katta had been fired; (ii) the empty cartridge was fired from recovered katta; (iii) the damaged pellets from packet ‘1’ are normally used in 12 bore ammunition and could have been fired from katta; and lastly (iv) three 12 bore KF special cartridges were live and fire- worthy ammunition and these were test fired in the laboratory [2025:RJ-JP:35406-DB] (7 of 12) [CRLAD-313/2018] from the recovered katta. The ballistic report connected the recovered katta and empty cartridge shell having been used to kill the deceased.

13. Ex. P.25 dated 25.10.2016 and Ex. P.26 dated 08.11.2016 FSL reports confirmed presence of human blood on the blood smeared soil, safi, dhoti, baniyan, necker of deceased seized by the Police. On safi, dhoti, baniyan, necker, the blood group was determined as ‘A’.

14. Learned counsel for the appellant emphasize that recovery of the katta, cartridges and empty shell cannot be relied upon by the prosecution for setting up a case against the appellant. The contention is that as per Ex. P.5 recovery memo, the weapon and ammunition were recovered at the instance of the appellant from outside his house. On the other hand PW-2 Hariram testified that the weapon and ammunition were handed over to the Police on the spot by Tuhiram. Moreover, PW-1 Chandrabhan stated that the weapon and ammunition were hidden in front of house of Bhuramaster. From the evidence adduced, it is evident that the weapon and ammunition were recovered from outside the house of the appellant on disclosure made u/s 27 of the 1872 Act. As per the recovery memo, the recovery was done from open space outside the room of the appellant. PW-2 Hariram recovery witness admitted his signatures on the recovery memo Ex. P.5 and the site plan Ex. P.6 and also affirmed that the recovery was made in his presence. The prosecution was able to prove the recovery and the contention raised deserved rejection.

15. Another angle to be considered is that deposition of eye witnesses PW-1 Chandrabhan, PW-3 Akash, PW-7 Smt. Premwati, [2025:RJ-JP:35406-DB] (8 of 12) [CRLAD-313/2018] PW-8 Rohit and PW-14 Mahesh consistently testified to have seen the appellant inflicting fire-arm injuries to the deceased. In the PMR, cause of death is the injury caused by fire-arm. The over- whelming evidence against the appellant of having killed the deceased in presence of eye witnesses at the shop of the deceased in open public view, shall not be dented even in case of non-recovery of the weapon used for committing the offence. It cannot be lost sight of that in the case in hand, the weapon used in the incident was recovered. The ballistic report confirms that recovered weapon was used in offence. One of the recovery witness, PW-2 Hariram has admitted his signatures on the recovery memo and the site plan of the recovery.

16. The Supreme Court in the case of State Through The Inspector Of Police Vs. Laly @ Manikandan reported in 2022 INSC 1093 has held:- “7. ....Recovery of the weapon used in the commission of the offence is not a sine qua non to convict the accused. If there is a direct evidence in the form of eye witness, even in the absence of recovery of weapon, the accused can be convicted. Similarly, even in the case of some contradictions with respect to timing of lodging the FIR/complaint cannot be a ground to acquit the accused when the prosecution case is based upon the deposition of eye witness.

8....As per settled position of law, there can be a conviction on the basis of the deposition of the sole eye witness, if the said witness is found to be trustworthy and/or reliable....

17. The Supreme Court in the case of Rakesh Vs. The State Of Uttar Pradesh reported in (2021) 7 SCC 188 has held:- [2025:RJ-JP:35406-DB] (9 of 12) [CRLAD-313/2018]

12. Now so far as the submission on behalf of the accused that as per the ballistic report the bullet found does not match with the fire arm/gun recovered and therefore the use of gun as alleged is doubtful and therefore benefit of doubt must be given to the accused is concerned, the aforesaid cannot be accepted. At the most, it can be said that the gun recovered by the police from the accused may not have been used for killing and therefore the recovery of the actual weapon used for killing can be ignored and it is to be treated as if there is no recovery at all. For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non. . …

18. The challenge raised to the procedure adopted for sealing the articles and sending them to FSL is devoid of merit. The pellets extracted during the post-mortem were duly sealed in a bottle and handed over to Police; Ex. P.23 seizure memo was prepared marking the bottle as ‘Mark 1’. It is not disputed that the bottle in a sealed condition was received in the FSL.

19. The argument that the sealed bottle deposited in Maalkhana contained only one pellet is without substance. Ex.P.11 was read to portray that the sealed bottle contained only one pellet. Maalkhana register is not to the effect that PW-12 had seen one pellet in the bottle but statement of PW-12 clearly states that one sealed bottle was deposited in Maalkhana.

20. No challenge is raised regarding clothes of the deceased seized and sent to the FSL and found stained with human blood of group ‘A’.

21. The argument that the discrepancies exist between two acknowledgment receipts (Ex.12 dated 14.09.2016 and Ex. P.24 [2025:RJ-JP:35406-DB] (10 of 12) [CRLAD-313/2018] dated 16.09.2016) that in total five articles were sent to the FSL, on the contrary the FSL report dated 25.10.2016 only pertains to three articles, is factually incorrect. The FSL report dated

25.10.2016 is with regard to the articles sent on 14.07.2016 vide Ex. P.12, wherein three articles were sent, while the ballistic report dated 31.03.2017 pertains to the articles sent on 16.09.2016, wherein two articles were sent making the total to five.

22. The argument that the pellets were not extracted from the deceased during the treatment but were taken out in post-mortem examination and the death was due to improper treatment being given to the deceased is rejected. In view of the PMR, the cause of death specified as ‘COMA’ as a result of ante-mortem gun shot (projectile fire arm) injuries on neck and face region, sufficient to cause death in ordinary course of nature. It would be apposite to note that no expert evidence was adduced in evidence to prove that cause of death was due to medical negligence.

23. PW-4 Mundra, PW-5 Bheema and PW-6 Shivdei turned hostile and the presence of PW-9 Pinki and PW-10 Saurabh being doubtful on the spot at the time of the incident does not help the cause of the appellant. There are four eye-witnesses examined by the prosecution and all these witnesses have consistently substantiated the case of the prosecution.

24. The challenge to the site plan of the incident (Ex. P.3) on the ground that the signature of witness PW-1 Chandrabhan was taken in the hospital, is devoid of merit. The statement of PW-1 Chandrabhan is to the effect that the site plan was signed by him. The witness withstood cross-examination and it was not suggested [2025:RJ-JP:35406-DB] (11 of 12) [CRLAD-313/2018] by defence regarding the site plan not being prepared at his instance.

25. The judgments Aslam Alias Imran (supra), Peeru Lal (supra), Harchand Singh (supra) and Vinod @ Nasmulla (supra) relied upon by learned counsel for the appellant are not applicable in the facts of the present case. In that case there were contradictions in the evidence of the witnesses with regard to their presence at the place of incident. Whereas in the case in hand presence of eye- witnesses finds mention in the complaint and their presence is substantiated by deposition of these witnesses.

26. In Harchand Singh (supra), it was a case where two sets of evidence contradicting each other were relied upon by the prosecution and in that circumstances, the evidence was held to be unreliable and benefit of doubt was extended to the accused. In the present case in view of the reliable depositions of eye witnesses, case of the prosecution is proved against the appellant.

27. Reliance on the decision of Vinod @ Nasmulla (supra) to contend that the appellant should be given benefit of doubt due to unreliable recovery memo & site plan is of no avail. In that case, the accused was arrested possessing the pistol but seizure was shown after nine hours and that too without any reasonable explanation for delay. The case is not applicable to the facts of the present case.

28. Learned counsel for the appellant relied upon decision of this Court in the case of Peeru Lal (supra) to argue that in inquest report, it has not been mentioned that the appellant shot the deceased and the prosecution was not aware of the factual position. In that case, the injury on the dead body were not [2025:RJ-JP:35406-DB] (12 of 12) [CRLAD-313/2018] described and the facts of incident were not narrated but in the present case, inquest report gives detail of the incident and fire- arm injury sustained by the deceased is duly mentioned.

29. The appellant was charge-sheeted u/s 307 IPC for having inflicted a gun shot on the shoulder of his wife albeit the wife of the appellant PW-4 Mundra turned hostile, however, the case of the prosecution of appellant having shot PW-4 Mundra is supported by deposition of eye witnesses PW-1 Chandrabhan, PW-3 Akash, PW-7 Smt. Premwati, PW-8 Rohit, PW-14 Mahesh and also the MLR of the injured Mundra (Ex. P.13).

30. The usage of the katta (a licensed weapon) in the incident is substantiated by the eye witnesses, PMR of the deceased, MLR of the injured and the ballistic report. The wife of appellant sustained oval shaped gun shot injury with blacking around wound. The eye- witness testified that the appellant shot his wife with katta.

31. The charges u/s 302, 307 IPC & 3/25 of the Arms Act against the appellant stands proved.

32. Considering the facts and after re-appreciating the evidence in appeal, the impugned judgment of conviction and order of sentence, calls for no interference and are upheld. The prosecution has proved the case to the hilt.

33. The appeal is dismissed. (BALJINDER SINGH SANDHU),J (AVNEESH JHINGAN),J Monika Whether Reportable: Yes/No