JUDGMENT
Farooq Hasan, J.
1. This is an appeal against the judgment dated 18-3-1983 passed by the Addl. Sessions Judge, Kishangarhbas convicting the appellants under Section 302/34, IPC and sentencing them to imprisonment for life and a fine of Rs. 500/-. Accused appellant Dayaram has also been convicted under Section 3/25 and Section 27 of the Arms Act and has been sentenced to 3 months RI and 6 months R.I. respectively.
2. Briefly stated, the facts of the case are that an oral report (Ex. D 1) was lodged by PW 1 Nathu at P.S. Tijara. On the basis of this report, an FIR was chalked out at the police station. In the report, it has been alleged that on 6-4-1981 at about 5-30 to 6 p.m the accused-appellants armed with a gun and katta came to his house and after abuses Chiranji alias Chimta appellant called deceased Shera (son of the informant) to come out of the house. At this Shera came out and at that time the accused appellant Chiranji alias Chimta fired his gun which hit Shera on his chest. The second shot was fired by accused Dayaram which also hit him on his chest. It has been further alleged in the report that the informant and the wife of Shera tried to intervene and at that time the appellant Chiranji inflicted a lathi blow. After sustaining the injuries, Shera died on the spot. In this report, it has also been alleged that prior to this occurrence Smt. Bharpai wife of Shera was beaten by Dayaram and the daughter of accused Chiranji a report of which was also lodged at P.S Tijara which was recorded in the Roznamcha of P.S. Tijara, copy of which is Ex. P.A-1. In the report Ex. D 1 it has also been alleged that the occurrence was witnessed by the persons who were working in the fields nearby the place of occurrence. On the basis of this report Ex. D 1 a case for the offence under Section 302 and 323, IPC was registered and the investigation was set in motion. After conducting the investigation a challan was filed against the accused-appellants in the court of Munsif & Judicial Magistrate, Tijara, who committed them to the Court of Sessions for trial, which was conducted by the learned Addl. Sessions Judge Kishangarhbas.
3. In all 12 witnesses were produced by the prosecution. Statements of the accused under Section 313, Cr.PC were recorded wherein the accused appellants denied all the allegations levelled against them by the prosecution witnesses.
4. PW 1 Nathu is the informant, who has deposed in detail the facts relating to this occurrence. PW 2 Smt. Rajbala has also narrated the facts of the incident and claimed herself to be an eye witness. PW 3 Smt. Bharpai is the wife of deceased Shera, who has also claimed herself to be the eye witness of the occurrence. PW 4 Nepali and PW 5 Lalsingh are the witnesses of recovery of the gun at the instance of accused Chimta. PW 6 Bhupsingh is the attesting witness of Panchnama and memo Ex. P 6. regarding seizure of blood stained earth and seizure memo Ex. P. 7. PW 7 Dr. Dinesh Chand Sharma has stated that on 7-4-1981 he was posted as Medical Officer Incharge of Tijara hospital. It has also been further stated by him that he conducted post-mortem of Shera at the request of the police. This witness has proved the post-mortem report (Ex. P 9). PW 8 Kali Shanker has stated that he arrested the accused Chiranji and Dayaram vide arrest memos Ex. P. 11 and Ex. P. 12. PW 9 Banshiram has stated that the articles seized and recovered in case No. 32/81 State v. Chiranji and Daya Ram under Section 302/34, IPC were received by him for handing over the same in the Forensic Science Laboratory, Jaipur and he handed over the same in that office. PW 10 Lalsingh has been produced as an eye witness of the occurrence but the witness turned hostile. It has been stated by him that his agricultural field is at a distance of half mile from the place of incident, but he did not see any occurrence. PW 11 Rajkumar has also been produced by the prosecution as an eye witness but he also turned hostile and stated that he did not see any occurrence. He disowned his police statement Ex. P 14. Similarly, PW 10 Lalsingh disowned his police statement Ex. P 13. PW 12 Jagdishprasad is a formal witness. PW 13 Rameshwar Lal was incharge P.S Tijara on the relevant date, who conducted investigation of this case.
5. We have heard learned Counsel for the parties and have perused the entire record.
6. Learned Counsel for the appellants made the following submissions:
(1) That the name of PW 2 Smt. Rajbala does not find place in the report Ex. D 1. She is the daughter of the informant’s brother. Had she been present on the spot, her name could not have been omitted by the informant and as such she is a made up witness and her statement should not be relied upon.
(2) That in the report it has been alleged that the occurrence was witnessed by the persons who were working in the field nearby the place of incident. Two of them have been produced by the prosecution but they did not support the prosecution story. The whole case is, therefore, based on the testimony of interested witnesses PW 1 Nathu, father of the deceased Shera and PW 3 Mst. Bharpai wife of deceased Shera, and as such their testimony cannot be believed because the circumstances of this case contradict their testimony.
(3) That PW 1 Nathu alleged in the report that lathi blow was also inflicted on his person, but in the court statement he has stated that the blow was given by barrel on his person. On the other hand, PW 3 Mst. Bharpai stated that a lathi blow was inflicted on the person of PW 1 Nathu. In the Court statement PW 1 Nathu had stated that blow by barrel was inflicted which hit his leg, but in the injury report there is no, such injury. Therefore, the statements of PW 1 Nathu and PW 3 Mst. Bharpai have not been supported by the medical evidence. (4) That from the perusal of the statement of PW 1 Nathu it is doubtful as to when the report was lodged.
7. The learned P.P on the other hand submitted that the accused appellants have been rightly convicted by the learned trial court. It has been also submitted by the learned P.P that the statements of eye witnesses are believable in comparison to any other circumstance specially the site plan and also the statement of the doctor who prepared the injury report and the post mortem report. It has been further contended that Ex. P 23 is the report of the Ballastic Expert which supports the prosecution version.
8. We have seriously considered the arguments advanced by the learned Counsel for the parties.
9. Before going into the merits of the case, we would like to consider as to whether Shera died due to gun shot injuries. In order to decide this point, we will have to consider the post mortem report and the statement of PW 7 Dr. Dinesh Chand. The doctor found the following injuries on the person of deceased Shera:
(1) Gun Shot Wound 3/4 cm. x 3/4 c m. x skin deep on right lateral side of neck in the lower I/3rd part anteriorly;
(2) Gun Shot Wound 3/4 cm. x 3/4 cm. x skin deep on right lateral side of neck in the lower l/3rd part anteriorly 2 cm. below injury No. 1;
(3) Gun Shot Wound 1-1/2 cm. x 1-1/2 cm. x 3 cm. (above downwards) with bleeding on right lateral side of neck on the lower part 1 cm. below injury No. 2 just above the middle l/3rd part of right clavicle;
(4) Gun Shot Wound 1/2 cm. x 1/2 cm. x skin deep on lower l/3rd part of right side of neck 3 cm. lateral to trachea;
(5) Gun Shot Wound 3/4 cm. x 1/2 cm. x skin deep on lower part of right side of neck anteriorly 2 cm. above medial end of right clavicle;
(6) Gun Shot Wound 3/4 cm. x 1/2 cm. x skin deep on upper I/3rd part on right side of chest anteriorly;
(7) Gun Shot Wound 3/4 cm. x 1/2 cm. x 1 cm. on upper 1 /3rd part of right side of chest anteriorly 2-1/2 cm. medial to injury No. 6 with bleeding;
(8) Gun Shot Wound 3/4 cm. x 3/4 cm. x 2 cm. on upper l/3rd part of right side of chest anteriorly 2 cm, below the injury No. 7;
(9) Gun Shot Wound 2 c m. x 1-1/2 cm. x 1 cm. on medial side of chest anteriorly in the middle l/3rd with bleeding;
(10) Gun Shot Wound 3/4 cm. x 1/2 cm. x 1/2 cm. on upper l/3rd part of left side of chest anteriorly 2 cm. below left clavicle in the middle l/3rd part;
(11) Gun Shot Wound 3/4 cm. x 3/4 cm. x 2 cm. on middle 1/3rd part of right side of chest anteriorly 2 cm. medial to right nipple with bleeding;
(12) Gun Shot Wound 1-1/2 cm. x 1 cm. x skin deep on upper 1 /3rd part of right lateral side of chest anteriorly near axilla;
(13) Gun Shot Wound 1-1/2 cm. x 1 cm. x skin deep on upper part of right axilla anteriorly one cm. below injury No. 12;
(14) Gun Shot Wound 3/4 cm. x 1/2 c m. x skin deep on right axilla 1/2 cm. below injury No. 13;
(15) Gun Shot wound 4 cm. x 1/2 cm. x skin deep on lower part of right axilla anteriorly;
(16) Gun shot wound 1/2 cm. x 1/2 cm. x skin deep on proximal part of dorsal surface of right index finger;
(17) Gun shot wound 1/2 cm. x 1/2 cm. on proximal part of dorsal surface of right index finger 1/2 cm. below injury No. 16;
(18) Gun Shot wound 3/4 cm. x 1/2 cm. x skin deep on proximal part of dorsal surface of right middle finger;
(19) Swelling 10 cm. x 6 cm. on lower part of right side of neck above right clavicle.
10. On opening the body the following injuries were also found:
(1) Clotted blood present on the lower 1/3rd part of right side of neck anteriorly, upper half part right of chest anteriorly, right axilla, upper l/3rd part of left side of chest anteriorly underneath the skin and muscles of right and left side of chest with dark red blood. Blood clots present underneath the wounds of right index and middle finger;
(2) There was fracture of 1st and 2nd right ribs anteriorly with clotted blood, clotted blood present and external and internal surface of right side of ribs in the upper half part;
(3) There is rupture of upper and middle lobes of right lung with dark black blood with clots.
11. In the opinion of the doctor, the cause of death of deceased Shera was shock and haemorrhage caused due to rupture of right lung. The wounds sustained by Shera deceased are stated to be ante mortem. The doctor has proved the post-mortem report and has stated that injuries found on the person of deceased Shera were in the ordinary course of nature sufficient to cause death. Looking to the injuries sustained by Shera and the statement of the doctor we are fully convinced that Shera died due to the injuries sustained by him and as such it is a case of homicidal death.
12. Now, we have to see as to whether the accused-appellants are responsible for the death of deceased Shera, and for this purpose we have to go through the statements of the prosecution Witnesses,
13. In the report Ex. D 1 and in the statement PW 1 Nathu has alleged that when the accused-appellants came to his house armed with guns, they called Shera saying, “come out of the house”, and on this Shera came out of the house. In the report Ex. D 1 it has also been alleged that after Shera came out of the house, both the accused fired at him, but in the court statement PW 1 Nathu has stated that after coming out of the house Shera went 4-5 steps away from his house and at that time accused Chimta abused him and both the accused fired their guns which hit Shera on his chest. Nathu (PW 1) has also stated that he went into the village and told the villagers that his son was murdered, but the villagers did riot believe him. He has further stated that accused Chimta inflicted a blow on his left leg by the barrel of the gun and he sustained three injuries on his leg. He has further stated that he did not show his injuries to the doctor. He reached late in the night at the police station on the same day to lodge the report and the police personnel accompanied him to his village and they saw the dead body on the next day of the occurrence. At that time the report was written and the police employees took him to the police station. It has been further stated by him that at the time when Shera sustained gun shot injuries, Raj Kumar, Raj Bala and Lal Singh came on the spot. The witness disowned the portion A-B of the report Ex.D 1 and portion A-B of Ex.D 2 wherein it has been stated that his son Shera was sitting out side the house. He has further deposed that his son sustained gun shot injuries in the thorough fare which was infront of his house. He has denied that Shera sustained injuries on the northern side of the public thorough fare. He further deposed that after sustaining gun shot injuries his son fell down after walking two steps. PW 2 Rajbala has stated that at the time when the accused-appellants came to the house of deceased Shera, Shera was inside the house and his father Nathu (PW 1) was sitting out side the house. She has also stated that Shera sustained injuries inside the house and not outside. Her statement is discrepant to the statements of PW 1 Nathu and PW 3 Mst. Bharpai who have stated that Shera sustained injuries out side the house and at the time when at the call of the accused-appellants Shera came out of the house. PW 3 Mst. Bharpai has stated that at the call of the accused-appellants Shera came out of the house and the accused abused him. On this Shera told Chimta accused as under:….
This is not the version of PW 1 Nathu father of the deceased. PW 3 Mst. Bharpai has also stated that accused Chimta inflicted lathi blow on the person of Nathu after the firing of the guns. He has stated that when the accused came at her house, she and her husband were inside the house. She has disowned the statement Ex.D 3 wherein she stated that Shersingh (Shera) was sitting outside the house and was talking and she was also sitting with them. She has further stated that the guns were fired by the accused from a distance of 1-2 steps from the deceased. She has also deposed that after sustaining the injuries Shera fell down after walking 2-4 steps,
14. The important evidence against the accused-appellants consists of PW 1 Nathu, PW 2 Mst. Rajbala and PW 3 Mst. who have claimed themselves to be the eye witnesses of the occurrence. It is true that all the three witnesses are the relatives of the deceased, but looking to the court statements of these witnesses it also transpires that the witnesses bore enmity against the accused. It is well settled that the evidence of interested or inimical witnesses cannot be disbelieved at the very outset, but this much is correct that their evidence should be scrutinised with care. If on a perusal of the evidence the court is satisfied that the evidence is trust worthy, there is no bar for the court to rely on the said evidence.
15. We have discussed above that initially the case of the prosecution was that when the accused went to the house of the informant the deceased was inside the house and at the call of the accused he came out of his house and that time the accused-appellants fired their guns which hit the deceased on his chest and other parts of the body. This case of the prosecution was subsequently changed at the stage of investigation and it was alleged that when the accused came to the house of the informant, the deceased, his wife and father were sitting outside the house and at that time the accused fired their guns which hit the deceased. The subsequent change at the investigation stage is clear from the site plan Ex. P 14A and the statement of Nathu (Ex.D 2) as also the statement of Smt. Bharpai (Ex. D3). In Ex.D 3 it has been stated, “My father-in-law Nathu and my husband Shersingh were sitting outside the house and were smoking I was also sitting with them”. In Ex.D 2, PW 1 Nathu has stated, “myself, my son Shersingh, my son’s wife Mst. Bharpai were sitting outside the house”. If this stand is accepted then the theory of the prosecution has been absolutely changed and in that situation the accused could fire their guns without calling the deceased and without waiting for the deceased to come out of his houses In that situation the injuries could be inflicted on the deceased while sitting outside his house, and it may also happen that after sustaining the injuries the deceased may die at the place where he was sitting. PW 1 Nathu and PW 3 Mst. Bhaspai have stated before the court that the deceased sustained injuries 4-5 steps away from his house and after sustaining the injuries he walked 2-3 steps and then fell down. From these depositions it emerges that the deceased sustained injuries at the door of the house but 4-5 steps away from the house and fell down after walking 2-3 steps away from the place where he sustained the injuries. It also transpires that the deceased breathed his last about 6-7 steps away from his house. The dead body was also found far away from the house. To patch up the situation, we are of the opinion that the version of the prosecution witnesses was changed at the stage of investigation and because of this reason they have stated that they were sitting outside their house, and in that situation it was possible that the deceased might have walked before and after sustaining the injuries, otherwise if the deceased was inside the house and came out at the call of the accused, then in that situation he will be injured at the door step and will not be in a position to walk before and after sustaining the injuries. In order to appreciate the evidence of the prosecution witnesses, we would like to peruse the site plan Ex.P 14-A. In this site plan, place marked ‘B’ is on the northern side of the public way which is about 25 steps away from the house of the informant marked as ‘C’ in the site plan. As stated earlier, it has been admitted by PW 1 Nathu and PW 3 Mst. Bharpai that the deceased walked about 3-4 steps from their house before sustaining injuries. Site plan was prepared at the instance of PW 1 Nathu, from which it transpires that the deceased went upto the point marked ‘B’ before sustaining the injuries and at point ‘B’ he was hit by the gun shots and after sustaining injuries the deceased walked upto point ‘A’. The distance from point ‘B’ to ‘A’ is five steps. Therefore, if it is admitted that the deceased was sitting outside his house before the actual occurrence took place, then the very base of the case goes out, because in the FIR which is the foundation of the prosecution case it has been stated that the deceased was inside his house at the time when the accused came armed with guns to the deceased’s house and at the call of the accused the deceased came out and the accused fired their guns which hit the deceased. It is thus clear that prosecution witnesses have not given the time version of the incident and it can be inferred that they are hiding certain true facts from the court, and because of this reason their testimony cannot ‘be held to be wholly reliable. We have also stated earlier that the testimony of partisan witnesses can be accepted by the Court also when the same is found trust worthy. But in the present case because of the reasons given above, we are of the opinion that the statements of PW 1 Nathu and PW 3 Mst. Bharpai require a strong corroboration from independent evidence. PW 1 Nathu has admitted that at the time the occurrence took place, Lalsingh and Rajkumar were also present. They have appeared as PW 10 and PW 11 respectively, but they turned hostile and did not support the version of PW 1 Nathu and PW 3 Mst. Bharpai. in the FIR it was mentioned that the persons who were working in the fields nearby the place of occurrence also came on the spot and they witnessed the occurrence. PW 10 and PW 11 Lalsingh and Rajkumar had their agricultural fields nearby the place of occurrence, They appeared in the witness box but they completely denied to have seen any occurrence or even the hearing of gun shot sound. It is thus clear that the independent witnesses are not supporting the version of partisan witnesses, i.e.; PW 1 Nathu. PW 2 Mst. Rajbala and PW 3 Mst. Bharpai.
16. The statements of PW 1 Nathu and PW 3 Mst. Bharpai have been further weakened from the statement of PW 7 Dr. Dinesh Chand Sharma. We have also maintained the nature of injuries sustained by the deceased and we are of the opinion that the description of injuries given by the doctor does not support the testimony of eye witnesses PW 1 Nathu and PW 3 Mst. Bharpai. Both these witness have stated that at the time when the accused fired their guns, the deceased Shera was standing 4 steps away from them. In a case where a person sustains injuries by fire arm from a distance of 3-4 steps, then what should be the nature and position of the injury is to he seen from the expert opinion regarding the fire arms, and that opinion cannot be overlooked simply by saying that the statements of the prosecution witnesses should be accepted as against the expert opinion. This is a matter of common sense that if a fire arm’s shot is sustained from a short distance, the nature of injury will be quite different from that fired from a long distance, and if the eye witnesses state anything against the settled principle or against the common sense, then in that case their statements cannot be relied upon. We would like to quote the opinion expressed in Modi’s Medical Jurisprudence and Toxicology in support of our observations:
If a fire arm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches round the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tatooed with unburnt grains of gun powder or smokeless propellant powder. The adjacent hair is singed, and the clothes covering the part are burnt by the flame.
When there is a close shot that is in the range of powder blast and flame in within 1 to 3 inches for small arms there is a collar of soot and grease (if present on the bullet) around the circular wound of entry. Singed hairs are seen if the body is not covered with clothing. Partially burnt and unburnt grains of powder are blasted into the skin causing a tatooing which cannot be easily wiped off. Wadding, pieces of clothing or other debris may be found lodged in the wound. The wound of exit is often larger than the wound of entrance.
17. In the light of above opinion, if we examine the injuries sustained by the deceased, we find that the symtoms which must occur in the case of a close range fire do not appear in the present case. PW 7 Dr. Dinesh Chand neither in the post-mortem report nor in his statement before the court has admitted that the symptoms which must occur in the case of close range fire appeared in this case also. Looking to the post-mortem report it appears that the deceased was having gun shot injuries on the back side of his neck to chest and axilla and also on the fingers. Looking to the nature of injuries it can be inferred that the dispertion of pellets on the person of the deceased was within a radius of about 15-16 inches. It case it is admitted that the hand of the deceased was in a folding position and that too near the chest, but if it is not so admitted, then dispertion was within a radius of about 2 or 2-1/2 ft. In view of the expert opinion expressed in various books on Forensic Science, it is a settled principle that the dispertion of pellets within a radius of 1 inch can be caused by a shot fired at a distance of one yard. If this principle is applied in the present case, then looking to the injuries on the person of the deceased the distance of the assailant from the deceased should not be less than 45 ft. in case it is admitted that the hand of the deceased was on or near the chest. But, if this position is not admitted then the distance becomes much more and that may range upto 75 to 90 ft. This position is further strengthened by the fact that only three pellets were recovered from the body of the deceased after two hours efforts by the doctor. If the range would have been close, then the whole group of the fired material must have peneterated into the body of the deceased. As the distance was much more, some of the pellets fell down after touching the body, and that is the reason that some of the injuries on the person of the deceased are skin deep. The circumstances discussed above further negative the version given by the eye witnesses PW 1 Nathu and PW 3 Mst. Bharpai.
18. The contention of the learned Public Prosecutor that the site plan Ex. P. 14A and the position of injuries mentioned in the post-mortem cannot affect the testimony of eye witnesses, but we are unable to accept the contention of the learned PP. PW1 Nathu and PW 3 Mst. Bharpai are closely related to the deceased. Their statements have not been supported by independent eye witnesses PW 10 Lalsingh and PW 11 Rajkumar. Their statements further do not find support by the nature of injuries sustained by the deceased and mentioned in the post-mortem report. The cases referred to by the learned council on these points are based on different facts. In the case Jit Singh v. State of Punjab the evidence of the eye witnesses was unimpeachable and trustworthy and was fully supported by the circumstances of the case and because of this reason it was observed by their Lordships of the Supreme Court that the facts contained in the site plan cannot affect the testimony of the eye witnesses. But in the present case the circumstances are different. The facts contained in the site plan Ex. P 14A are corroborated by the statements of PW 1 Nathu and PW 3 Mst. Bharpai contained in Ex. D.2 and Ex. D. 3. Similarly the contention of the learned Public Prosecutor that the statements of the eye witnesses cannot be disbelieved in view of the opinion expressed by the Medical Jurist the case referred to by learned Public Prosecutor on this point is also based on different footing. In the instant case the nature of injuries shown in the post-mortem report and in the expert opinion on forensic science, if read together, certainly discredit the testimony of eye witnesses.
19. PW2 Mst. Rajbala is also a partisan witness. She is the daughter of informant’s real brother and the informant is t?he father of the deceased Shera. It has been stated by Mst. Rajbala that at the time of incident she was only two steps away from the place of occurence. Both PW1 Nathu and PW 3 Mst. Bharpai have claimed the presence of P W2 Mst. Rajbala in their court statement, but we fail to understand as to why she was not named in the report. This circumstance is more important that her name does not find place in the original report. Moreover her statement is not corroborated by PW 1 Nathu and PW3 Mst. Bharpai. PW 2 Mst. Rajbala has stated that the deceased Shera sustained injuries inside the house and he breathed his last inside the house. This was not the case of the prosecution at the stage of lodging the report, during the investigation and at the trial before the learned Addl. Sessions Judge. According to PW 1 Nathu and PW 3 Mst. Bharpai Shera sustained injuries at the time when he came out of the house at the call of the accused-appellants. These two factors are sufficient to observe that PW 2 Mst. Rajbala was not an eye witness of the incident and she is a made up witness. As such no reliance can be placed on the testimony of PW 2 Mst. Rajbala.
20. PW 1 Nathu has stated before the trial Court that he lodged the report on the next day of the incident when the police came to his village. In the light of this statement the report (Ex D 1) becomes anti-dated, because that report was written on 6-4-1981 at 9:15 p.m. In our opinion, one more infirmity which has been created, in this case is that the contents of the FIR Ex. D. 1 have not been proved by the prosecution. The FIR is an important piece of evidence. It was the case of the prosecution that Ex. D. 1 was lodged by PW 1 Nathu audit contained the facts stated by him. It was mandatory on the part of the prosecution to have referred the facts contained in Ex. D 1 to PW 1 Nathu and to get them proved by him. But for the reasons best known to the prosecution this FIR Ex. D. 1 has not been presented before PW 1 Nathu. This report was exhibited at the trial at the instance of the accused appellants in order to confront him with the portion marked A-B in Ex. D. 1. At this stage also, it has not been stated by PW 1 Nathu that the facts contained in Ex. D. 1 are correct and even after exhibiting this report the prosecution failed to get this report proved by PW 1 Nathu. This infirmity on the part of the prosecution definitely goes to the root of the case and weakens the prosecution story, benefit of which goes to the accused-appellants.
21. The prosecution case further becomes doubtful due to the reason that PW 1 Nathu at the investigation stage that when he tried to intervene he was given a lathi blow, but before the trial court he has stated that accused Chimta inflicted a barrel blow on his left leg. He also stated that he did not get his injury examined by the Medical Officer. Ex. P 10 injury report of PW 1 Nathu has been proved by PW 7 Dr. Dinesh Chand wherein one injury of swelling with abrasion has been mentioned on the dorsal aspect of the right fore-arm. PW 1 Nathu never claimed that he was hit on his right fore-arm and he sustained injury on his right fore-arm.
22. We have gone through the report (Ex. p. 23) prepared by the Junior Scientific Officer, Central Forensic Science Laboratory. In that report it has not been mentioned whether the fire-arms marked E & F were having any sign of recent use. It has been the case of the prosecution that just after the occurrence the guns marked E & F were recovered on the information and at the instance of the accused-appellants. The Junior Scientific Officer was, therefore, in a position to give a definite opinion that the guns were recently used. According to the opinion of the Forensic Experts, if the gun is examined just after its fire, then it is possible for the examiner to detect that the gun has been fired recently, because after firing one can find gun powder in a very very small quantity in the barrel of the gun. We are also of the opinion that Ex. P. 23 is not of much help to the prosecution,, because it has been mentioned in this report that three pellets sent for examination can be loaded in and fired through the fire arms similar to the two fire arms E & F. But, it is not possible to state whether these pellets were fired through the firearms E & F to the exclusion of all others. This is a general opinion by which it cannot be inferred that the pellets in. question were fired from the fire arms in question.
23. In the case in hand the recovery of the fire arms has been fully proved by the prosecution. Accused-appellant Dayaram was having the fire arms in question without any licence and the trial court was justified in observing that the accused-appellant Dayaram committed the offence of having fire arms without any licence and as such he has been rightly convicted by the trial court for the offence under Section 3/25 and Section 27 of the Arms Act, and we do not find any reason to interfere with the Grading arrived at by the trial court in this respect.
24. Accordingly, the accused-appellants Chiranji alias Chimta and Dayaram are acquitted of the charge under Section 302/34, IPC and the accused-appellant Chiranji is also acquitted of all other charges levelled’ against him. Accused-appellant Chiranji is in jail and he shall be set at liberty forthwith, if not required in any other case. The conviction of accused-appellant Dayaram under Section 3/25 and Section 27 of the Arms Act is maintained and the sentence awarded to him in these sections of Arms Act by the trial Court is also maintained. The trial court has ordered that the sentence passed against the accused-appellant Dayaram shall run concurrently. We also maintain the same. In case the accused-appellant Dayaram has served out the sentence of six months, he shall be released forthwith.