TMI Blog2019 (6) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused No.1 responsible for the fatal fire arm wounds on the body of deceased Somiben. There was darkness at the time and the place of occurrence making it difficult for the witnesses to identify the assailants. The evidence of eye-witnesses are contradictory to each other as to the firing of the fatal blow. The guilt of the accused has not been proved beyond reasonable doubt and the benefit has to be given to the accused. The conviction of appellant-accused No.1 under Section 302 IPC read with Section 34 IPC and Section 307 IPC read with Section 34 IPC and under Section 25(c) of the Arms Act is set aside and this appeal is allowed - appellant/accused No.1- Ashoksinh Jayendrasinh is ordered to be released forthwith unless his presence is required in any other case. - Criminal Appeal No.1123 Of 2010 - - - Dated:- 7-5-2019 - R. Banumathi And S. Abdul Nazeer, JJ. JUDGMENT R. Banumathi, This appeal arises out of the judgment dated 05.03.2009 passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal No.10 of 2001 in and by which the High Court affirmed the conviction of appellant-accused No.1 under Section 302 IPC read with S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d against the appellant and other co-accused under Sections 302, 307, 120B IPC read with Section 34 IPC, 143, 147, 148, 149, 506(II), 323 and 504 IPC, under Section 25(c) of the Arms Act and under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 4. To bring home the guilt of the accused, the trial court examined four eye-witnesses viz. complainant-Somabhai Rupabhai (PW-3), Hirabhai Somabhai (PW-5) and injured eyewitnesses- Ramanbhai Mulabhai Rangjibhai (PW-6) and Nandaben Hirabhai (PW-7), Dr. Rohit Kumar (PW-1) who conducted the post-mortem on the dead body of deceased Somiben, Dr. Deshmukh Hiralal (PW-4) who examined the injured eye-witnesses and other witnesses. Upon consideration of the evidence of injured eye-witnesses (PWs 6 and 7), recovery of weapons and other evidence on record, the trial court vide its judgment dated 15.11.2000 convicted the appellant-accused No.1 and accused No.2 under Section 302 IPC read with Section 34 IPC and sentenced them to undergo life imprisonment along with fine of ₹ 5,000/- each. They were also convicted under Section 307 IPC read with Section 34 IPC and were sentenced to undergo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the absence of proof of recovery of weapons from the appellant, the fatal injuries sustained by deceased Somiben cannot be attributed to the appellant. It was submitted that in the post-mortem certificate (Ex.P-52), Dr. Rohit Kumar (PW-1) has stated that there were puncture wounds but it is not clear as to whether those wounds were caused by rifle or by gun. It was urged that in the absence of any definite evidence as to which weapon-whether rifle or gun had caused the injuries, the court ought not to have convicted the appellant-accused No.1 under Sections 302 IPC read with Section 34 IPC and Section 307 IPC read with Section 34 IPC and under Section 25(c) of the Arms Act and prayed for giving benefit of doubt to the appellant-accused No.1. 7. Ms. Jesal Wahi, learned counsel appearing on behalf of the respondent-State has taken us through the judgment of the trial court and the impugned judgment and submitted that the evidence of injured eye-witnesses (PWs 6 and 7) and the evidence of complainant-Somabhai Rupabhai (PW-3) and other eye-witness Hirabhai (PW-5) are cogent and consistent and the courts below rightly convicted the appellant-accused No.1 and the concur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with the help of moonlight. In the absence of evidence as to the availability of sufficient light, the identification of the accused and the overt act attributed to the appellant becomes doubtful. 11. In the complaint filed by complainant-Somabhai Rupabhai (PW-3), it has been stated that appellant/accused No.1- Ashoksinh Jayendrasinh and accused No.2-Kalusinh fired three gun shots from their guns. Whereas, in the statement before the court, PW-3 has stated that Kalu Sinh fired three shots which injured Nandaben and Ramanbhai . As per the case of complainant as stated in the court, total three gun shots were fired and all three were fired by accused No.2-Kalusinh. As rightly submitted by the learned counsel for the appellant, there are contradictions in the case of the prosecution as to who fired those gun shots and the benefit of doubt is to be given to the appellant. 12. Dr. Rohit Kumar (PW-1) has conducted the post-mortem on the dead body of deceased Somiben and as per post-mortem certificate (Ex.P-52), PW-1 noted the following injuries:- (i) One entry wound on left side of chest above the nipple of 0.5 cm diameter. (ii) Puncture wound, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esses in Ex.P-79 have turned hostile, the court has to seek corroboration from other sources regarding the recovery of weapons. 15. Learned counsel appearing for the appellant mainly contended that fired bullet was not recovered and only empty cartridges made of bronze were recovered near the mango tree. Contention of the appellant is that since the fired bullet which caused fatal injuries to the deceased was not recovered, the ballistic expert cannot give definite opinion as to which weapon was used to cause the fatal gun wounds to the deceased. Learned counsel further contended that ballistic expert has stated that he only tested the fired bullet C2 from rifle C1 and examined only empty bullet recovered and therefore, from the evidence of ballistic expert, it cannot be said that gun shot injury was caused to the deceased only from the rifle recovered from the appellant. Non-recovery of bullet cannot be said to be fatal to the prosecution case. Since benefit of doubt is given to the accused on other aspects like darkness in the place of occurrence and doubts as to who caused fatal injuries, we are not inclined to consider the merits of the contention assailing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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