JUDGMENT
S.D. Pandit, J.
1. Lance Naik Surat Singh has preferred the present appeal against the order of conviction passed against him by the Additional Sessions Judge in Sessions Case No. 42/88. The Additional Sessions Judge has found the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code and has sentenced him to suffer imprisonment for life and pay a fine of Rs. 1,000/- and in default to suffer SI for six months.
2. Appellant Surat Singh was working as a Lance Naik in DAC Platoon, Central Vehicle Depot, Delhi Cantonment. On the date of incident, i.e. 23-10-1984, appellant : PW23 Lance Naik Bala Sahai; and PW25 Sepoy Dewan Singh were on sentry duty on the main gate of Central Vehicle Depot, Delhi Cantonment. As per the rule, a sentry was to perform the duty for two hours and they were performing their duty in rotation. PW23 Lance Naik Bala Sahai was on duty between 6.00 P.M. to 8.00 P.M. Appellant Surat Singh was to take over the guard duty from him at 8.00 P.M. and was to be on duty between 8.00 P.M. and 10.00 P.M. Deceased Barpoor Singh was also on duty at the gate and his duty was to search the vehicles passing from the main gate. His duty hours were also from 6.00 P.M. to 8.00 P.M. at the main gate of Central Vehicle Depot (CVD).
3. Since the appellant had to report for duty at 8.00 P.M. he had gone to the Guard Room by about 7.25 P.M. and had taken his rifle from there. At about 7.30 P.M. or thereabout Lance Naik Bala Sahai. PW23, had sudden pain in his stomach and he urgently wanted to go to latrine. He, therefore, came to the Guard Room and told Guard Commander Udai Singh. At that time appellant Surat Singh went on duty as PW23 Lance Naik Bala Sahai had gone to the latrine. First informant Lance Naik Kamal Prasad Singh and PW24 Sepoy D. N. Ram, Driver, were told by Subedaar Dharam Singh to go to the JCO mess and to bring his bedding and food and they had boarded the vehicle. At that time Barpoor Singh, who has his back towards the present appellant, was shot at by the appellant by his rifle. Barpoor Singh fell with his face on the ground. Thereafter, appellant Surat Singh, holding his rifle in his hands, went towards the Guard Room. Subedar Dharam Singh and an Orderly Officer Inder Prakash were informed. They came out and Orderly Officer Inder Prakash addressed to the present appellant Surat Singh “Beta Jo Kuch Hona Tha Ho Gaya Ab Rifle De Do”. Thereupon appellant handed over the rifle along with the charger and five rounds of cartridges to Subedar Dharam Singh. Thereafter, Dharam Singh questioned appellant as to what he had done to which appellant had replied that he fried the shot at Bharpoor Singh because those days Barpoor Singh was thirsty of his life. Thereafter, the appellant was detained by his superiors and the police of Delhi Cantonment Police Station were informed by Lance Naik Kamal Prasad Singh by giving his First Information Report which was registered at CR No. 400. The appellant was arrested and on completion of necessary investigation the charge sheet was filed against him in the Court.
4. Charge was framed against the accused on 23-5-1985 for the offence under Section 302 of the Indian Penal Code. The accused has pleaded not guilty to the charge. His defense is of total denial.
5. In order to prove its case against the appellant prosecution has examined in all 26 witnesses. Out of these 26 witnesses, PW2, Subedaar Dharam Singh; PW8, Inder Prakash; PW9, Havaldar Sher Singh, PW21, Lance Naik K. P. Singh; PW23, Lance Naik Bala Sahai; PW24, Sepoy D. N. Ram; and PW25, Sepoy Dewan Singh, are the witnesses who were present at the spot at the time of the incident in question. The learned trial Court accepted the evidence of these witnesses and the other circumstantial evidence on record and came to the conclusion that appellant Surat Singh had caused homicidal death of Barpoor Singh by Shooting him by his rifle and held him guilty of the offence punishable under Section 302 of the Indian Penal Code and sentenced his as stated earlier.
6. Learned counsel for the appellant has urged before us that the evidence led by the prosecution is not at all sufficient to hold the appellant guilty of the offence for which he was charged. He conceded that the evidence led by the prosecution is not at all connecting the appellant with the homicidal death of Barpoor Singh. He contended that the claim of some of the prosecution witnesses who have actually seen the appellant shooting the deceased during the investigation is not at all believable and there is no direct evidence to connect the appellant with the offence in question. He has also contended that the trial Court was not justified in accepting and relying upon the evidence of the ballistic expert, PW20, Mr. B. Moitra. Thus, he contended that there is reasonable doubt as regard the guilt of the accused and the benefit of the same should be given to him. As against this, learned for the State, Mr. Sanjeev Khanna, supported the findings of the trial Court and contended that from the material on record there is no doubt at all about appellant having committed the offence in question.
7. At the cost of repetition it must be said that PW3 Subedar Dharam Singh; PW3, Naib Udai Singh; PW8, Inder Prakash; PW9, Havaldar Sher Singh; PW21, Lance Naik K. P. Singh; PW23, Lance Naik Bala Sahai; PW24, Sepoy D. N. Ram; and PW25, Sepoy Diwan Singh are the witnesses who were present near about the place of incident at the time of incident in question. It is not at all in dispute that deceased Lance Naik Barpoor Singh was no sentry duty at the main gate of Central Vehicle Depot and his duty hours were between 6.00 P.M. to 8.00 P.M. It is also an admitted fact that appellant Surat Singh, PW23 Lance Naik Bala Sahai and PW25, Sepoy Diwan Singh were on guard duty at the Central Vehicle Depot on that fateful day on 23-10-1984. It is an admitted fact that these three persons were performing the guard duty for two hours each by rotation. It is also an admitted fact that PW23 Lance Naik Bala Sahai was having his guard duty from 6.00 P.M. to 8.00 P.M. and after him appellant Surat Singh was to perform the said duty between 8.00 P.M. and 10.00 P.M.
8. From the evidence of these witnesses, viz. PW2, Subedar Dharam Singh; PW3, Naib Udai Singh; PW8, Inder Prakash; PW9, Havaldar Sher Singh, PW21, Lance Naik K. P. Singh; PW23, Lance Naik Bala Sahai; PW24, Seopy D. N. Ram; and PW25, Sepoy Dewan Singh, it is clear that sound of rifle firing was heard by them at about 7.40 P.M. and at that time they had found Barpoor Singh lying with a gun shot on his back near the main gate of Central Vehicle Depot. If the cross-examination of these witnesses is considered then it would be quite clear that their claim that they had heard the gun shot and thereafter they had found Barpoor Singh lying on the ground with gun shot on his body is not at all denied and disputed. Out of these witnesses PW21 Lance Naik K. P. Singh and PW24, Sepoy D. N. Ram were sitting in a vehicle at the time of the said incident. As per the evidence of these two witnesses as well as PW2, Subedar Dharam Singh, these two witnesses were asked by Subedar Dharam Singh to go the JCO mess to bring the bedding and food for Subedar Singh. The evidence of both of them further shows that when they were so seated in the vehicle they heard the gun shot and the immediate reaction of PW21, Lance Naik K. P. Singh was by saying that Surat Singh had fired and killed Barpoor Singh. The evidence of PW21 K. P. Singh also clearly shows that when he heard the gun shot he saw towards the gate and found Barpoor Singh lying on the floor and the appellant with his rifle in his hands standing near Barpoor Singh. The evidence of PW2, Subedar Dharam Singh, PW8, Inder Prakash; PW9, Havaldar Sher Singh, PW24, Sepoy D. N. Ram also clearly shows that after they had heard the gun shot and PW21 saying that Surat Singh had killed Barpoor Singh by firing the gun shot they had seen towards the place and at that time appellant was seen by them with his rifle in his hands.
9. Evidence of PW2, Subedar Dharam Singh, PW8, Inder Prakash, PW9, Havaldar Sher Singh, PW21, Lance Naik K. P. Singh and PW24, D. N. Ram further shows that when they saw the appellant proceeding towards the Guard Room with the rifle in his hands PW8, Inder Prakash had exclaimed “Beta Jo Kuch Hona Tha Ho Gaya Ab Rifle De Do” and on that saying by him appellant Surat Singh had handed over his rifle to PW2, Subedar Dharam Singh. Thereafter the accused was directed to sit near the Guard Room and after the arrival of the superiors he was taken into custody and put in the military lock up. It is very pertinent to note that the first information of this incident was given by PW21 Lance Naik K. P. Singh within two hours of the incident and in the said First Information Report he had narrated the fact that he had the heard gun shot and had seen the accused firing Barpoor Singh and that thereafter Subedar Dharam Singh and Orderly Officer Inder Prakash came there and they had also seen the appellant with the rifle in his hands and on Inder Prakash asking the appellant to handover his rifle to take place had happened and he should hand over his rifle hs had handed over the rifle to Subedar Dharam Singh. Therefore, the said first Information Report gives the necessary support and corroboration to the evidence of these witnesses.
10. No doubt at the time of recording of the statement of the accused under Section 313 the appellant was not the specific sentence uttered by Inder Prakash, viz. “Beta Jo Kuch Hona Tha Ho Gaya Ab Rifle De Do” and thereupon he handed over the rifle to Subedar Dharam Singh but he was asked question No. 9 and that question No. 9 and his reply are as under :-
Q.9 : It is also in evidence against you that after firing and killing Bharpoor Singh, you started moving towards the gate office holding the rifle Ex. P1 in your hand in aiming position and that you handed over the rifle to Subedar Dharam Singh (PW2) which was in loaded condition and that the said rifle was in turn handed over to Hav. Sher Singh by Subedar Dharam Singh. What have you to say ?
Ans : It is correct. However, on reaching the main gate, I saw that the deceased was lying near the gate and on seeing him, when I was going towards the gate office, I met PW2 Dharam Singh and on his asking, I had handed over the rifle to him.
From the above question it would be quite clear that when he was moving towards the gate with the rifle in his hand he had handed over the said rifle to Subedar Dharam Singh and in his reply he has clearly stated that he had handed over the same on being asked to do so. No doubt he was not put a proper question at the time of recording his statement under Section 313 but from his reply as well as the question it would be quite clear that he had handed over the rifle immediately after the incident in question as he was asked to hand over the same.
11. PW3 Naib Udai Singh, Guard Commander, has deposed that on 23-10-1984 appellant Surat Singh after taking the rifle and ammunition went to relieve Lance Naik Bala Sahai at about 7.30 P.M. PW10 Capt. Pradeep Kumar Gautam has deposed that the rifle in question was given to the accused on 20-10-1984 at 8.20 P.M. and the said rifle was to remain in his custody for 72 hours and the said rifle had not been returned by him. PW19, Subedar, S. N. Singh, Kotha JCO, has deposed that the rifle before the Court was issued to the present accused on 20-10-1984 and both PW10, Capt. Pradeep Kumar and PW19, Subedaar S. N. Singh had identified the rifle before the Court as given to the appellant and their evidence regarding the handing over of the rifle to the present appellant on 20-10-1984 and that it was with him has remained unchallenged. PW25, Sepoy Dewan Singh has deposed that each of the three sentries who were to perform the guard duty were given distinct and separate rifles and that evidence of his has also remained unchallenged. The evidence of PW8, Inder Prakash, PW2, Subedaar Dharam Singh and PW9, Havaldar Sher Singh clearly shows that the rifle before the Court is the same rifle which the appellant had handed over to PW2, Subedar Dharam Singh immediately after the incident on being asked by PW8, Inder Prakash to do so.
12. Learned counsel for the appellant has urged before us that the case of the prosecution that the appellant had gone to the spot i.e. near the gate at about 7.25/7.30 P.M. and had resumed his duty prior to 8.00 P.M. is not believable and acceptable. If the evidence of PW3, Naib Udai Singh, PW9, Havaldar Sher Singh, PW23, Lance Naik Bala Sahai, PW25, Sepoy Dewan Singh is considered, then it would be quite clear that on that day PW23 Lance Naik Bala Sahai had complained of stomach upset and had wanted to go to latrine for easing himself. He was relieved from his duty about 20/25 minutes in advance. The evidence of both these witnesses further shows that the present appellant had also come to the Guard Room about 25/30 minutes before the actual beginning of his duty hours. As appellant had armed himself and was prepared to go on his duty he was allowed to go to the duty prior to the actual duty hours in view of PW23, Lance Naik, Bala Sahai, having come earlier. No doubt there is no entry in the duty register or any written order for the appellant to do so. But if the evidence of the prosecution witnesses, particularly of PW2, Subedar Dharam Singh and PW3, Naib Udai Singh is considered then it would be quite clear that they are not ready to take up the responsibility of allowing the appellant to resume his duty before the due duty hours. This is happening because it has clearly come in the evidence of Lance Naik Bala Sahai PW23, that his superiors had initiated proceedings against him for leaving his duty spot before 8.00 P.M. It has clearly come in his cross-examination that disciplinary proceedings were pending against him when he had deposed before the Court. Because of the existence of the said disciplinary proceedings the witnesses, particularly PW2, Subedar Dharam Singh and PW3, Naib Udai Singh, who were actually responsible for allowing Lance Naik Bala Sahai to leave his duty point and allowing the appellant to resume his duty before the due duty hours, have tended to avoid their own responsibility. But even the appellant admits that the had resumed his duty earlier on that day. He is only trying to show that he had resumed his duty earlier for about 10 minutes and not about 30 minutes as claimed by the prosecution. But if the cross-examination of Lance Naik Bala Sahai PW23, as well as of other witnesses is taken into consideration then it would be quite clear that there is no doubt about the fact that on that day Lance Naik Bala Sahai had stomach upset and he had left his duty point before the actual closure of his duty hours and appellant Surat Singh had taken over the said duty point before the beginning of his duty hours and, thereafter the incident in question had taken place. It is not material as to exactly at what point of time the appellant had taken over the duty from PW23, Lance Naik Bala Sahai. As stated earlier, the witnesses are avoiding to take up the responsibility of Bala Sahai leaving his duty hours earlier in view of the disciplinary proceedings against them but the fact remains that Lance Naik Bala Sahai had, in fact, left his duty point earlier on that day and appellant had resumed the said duty point earlier in time before his actual duty hours.
13. It must be further mentioned here that admittedly the incident in question has taken place at the gate of the Central Vehicle Depot of the Army. It has come in evidence that the area has a compound wall of the height of 9 feet. It has also come in evidence that deceased Barpoor Singh was facing the gate and he was shot at from the back and he had fallen on his face. It has further come in evidence that on outsider is allowed to enter the said area. It has also come in evidence that at the time of the incident besides the present appellant nobody else present in that area had a rifle or any other firearm was with him. It has further come in evidence that a sentry who resumes his duty after 8.00 P.M. alone is allowed to take the rifle with him. It is very pertinent to note that there is no suggestion in the cross-examination of any of the witnesses. viz. PW2, Subedar Dharam Singh; PW3, Naib Udai Singh; PW8, Inder Prakash; PW9, Havaldar Sher Singh; PW21, Lance Naik K. P. Singh; PW23, Lance Naik Bala Sahai; PW24, Sepoy D. N. Ram and PW25, Sepoy Dewan Singh that besides the present appellant any body else present in that area had a rifle or any other firearm with him at the time of the incident. Therefore, this circumstance, viz., that besides the present appellant nobody else was armed with a rifle or firearm also goes to support the prosecution claim.
14. Prosecution has examined Shri B. Moitra, PW20, as a Ballistic expert in order to prove the certificate issued by him after the examination of the rifle and the empty cartridges. He has certified the result of the examination of the articles sent to him by saying as under :
“1. The 7.62 mm. rifle (mark W/1) of parcel No. 1 is in working order and had been fired through;
2. The 7.62 mm. cartridge case (mark C/1) of parcel No. 2 had been fired from the 7.62 mm. rifle (Mark W/1) of the parcel No. 1.”
Thus, from his opinion it would be quite clear that the rifle which was recovered from the present appellant was in working order and the empty cartridge which was also recovered from his rifle at the time of recovery of rifle was fired from the same rifle. As regards this opinion of the Ballistic expert it has been vehemently argued before us by the learned counsel for the appellant that the said Ballistic expert when examined by the prosecution as PW20, has not given in his deposition the reasoning for the said findings and, consequently, the said opinion and evidence must not be accepted. In support of that contention learned counsel for the appellant has cited the cases of In Re. K. Thimma Reddy, AIR 1957 AP 758 : (1957 Cri LJ 1091); Fakruddin v. State of Madhya Pradesh, AIR 1967 SC 1326 : (1967 Cri LJ 1197); Santokh Kumar v. State of Madhya Pradesh, 1988 Cri LJ 1583; and Gopal Singh Gorkha v. State of Uttar Pradesh 1991 Cri LJ 1235 : 1991 All LJ 374.
15. Before dealing with these cases in detail we would like to mention here that there was no challenge or dispute to the opinion given by the said witness, PW20, Mr. B. Moitra during his cross-examination. As a matter of fact, there is no cross-examination at all of the said witness. No doubt it is also true that when he was examined in examination-in-chief the prosecution had not brought on record through his evidence the reasons for his conclusions recorded by him in Ex. PW/20A. But Ex. 7 PW20A has been proved by this witness and the same has been admitted in evidence and at the time of the said document being exhibited and admitted in evidence no objection was raised on behalf of the accused and the exhibition of the said document was not at all challenged or disputed. If the said document and Ex. PW/20A is seen then it would be quite clear that it has been clearly mentioned in the same in note No. 2(b) as under :
“2(b). 7.62 mm. cartridges (C/4 to C/9) and parcel No. 3 were test fired in the laboratory and their remnants are being returned as the same parcel.”
The above note clearly shows that the said rifle was actually used and six cartridges out of the nine live cartridges which were forwarded to the said witness were actually test fired through the said rifle before recording the result of his examination of the said firearm. He has clearly mentioned in his report that the fire arm, viz. the rifle was in working order and he has further mentioned that the empty cartridge recovered and forwarded to him were fired through the same rifle. That opinion is given by him after he had fired six live cartridges from the said rifle and his opinion was not at all challenged during the cross-examination of the said witness. In a recent judgment of the Supreme Court in Sukhpal v. State of Haryana, , the opinion of the expert in fire arm was considered. The expert in that case had opined that the fire arm which was found with the detenu had the capacity of firing shots though the armour who was examined as an expert had not undertaken actual test firing for the purposes of ascertaining whether the said rifle was capable of firing or not. But his opinion was accepted by the Apex Court by making the following observations :- at page 580.
“In our view the learned counsel for the Sate is justified in her contention that in the instant case firing capability of the said rifle has been found by an expert, viz. and armour who has a special training in the subject. It is not absolutely necessary to make a test firing for the purposes of ascertaining whether or not rifle is capable of firing, we are, therefore, not inclined to hold that the firing capability of the said rifle has not been established in the instant case.”
16. In all the four cases cited by the learned counsel for the appellant it would be quite clear that from the very beginning the evidence of the prosecution regarding the fire arm was disputed and challenged. In case In Re. K. Thimma Reddy, AIR 1957 AP 758 : (1957 Cri LJ 1091), it has been observed as under :- at page 1097; of Cri LJ.
“Unless the data collected by the fire arms expert with respect to the fire arms whereby an offence is committed be supplied or the photos he has taken be produced so, that the opinion of the expert may be verified by the Court the Court ought not to accept the opinion of the expert without satisfying itself of the correctness of the same.”
In that case it was denied and disputed on behalf of the accused that gun shots which were found on the victim were fired from the arm recovered and, therefore, in view of that challenge the above observations are made. In the instant case we have already pointed out that it has been clearly mentioned by the ballistic expert that he had fired six live cartridges from the said rifle before recording his opinion that the empty cartridge recovered from the spot was fired from the said rifle and that opinion was not at all challenged in the trial Court as well as in the statement of the accused under Section 313, and it could not be said now that the said opinion of the expert could not be believed and accepted.
17. In the case of Fakruddin v. State of M. P., (supra), there was consideration of the opinion of the handwriting expert and what has been observed in the said case is as under :- at page 1199; of Cri LJ.
“Both under Section 45 and Section 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. Where an experts opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its observation that it is safe to accept, the opinion whether of the expert or other witness.”
Thus, the said case has no direct bearing on the facts of the case before us.
18. As regards the case Santokh Singh v. State of Madhya Pradesh (supra), in view of the facts in that case the opinion of the ballistic expert was not accepted as the ballistic expert had not given the reasons for his opinion. His opinion was challenged and disputed throughout. In that case it was also found by their Lordships of the Supreme Court that the gun was also lying in the police custody for a longer period without any reasonable cause and, therefore, in view of that fact the ballistic expert’s opinion was not accepted.
19. In the case of Gopal Singh v. State of Uttar Pradesh, (supra), the learned Single Judge of the Allahabad High Court had not accepted the bald opinion of the expert and the gun in that case was a muzzle loading gun and shot recovered from the calf of the injured was of the size of. 5075′ and there was no evidence of the size of the shots that were fired by the expert and in the opinion of the learned single Judge it was not possible for the expert to give opinion that the shot was fired from the muzzle loading gun.
20. Thus, all the four cases on which learned counsel for the appellant has relied are not applicable to the facts of the case before us.
21. The evidence of PW17, Dr. P. C. Dixit clearly shows that the death of Barpoor Singh was due to shock as a result of bullet injury. Dr. Dixit had performed the post-mortem and had found that the bullet had pierced the heart and the lung. He has also found entry would and the exit wound on the body of Barpoor Singh. His opinion that the death of Barpoor Singh was due to bullet injury is not at all challenged or disputed. As a matter of fact, learned counsel for the appellant has fairly not disputed the fact that Barpoor Singh had met the death due to the gun shot. In the case of Ram Kumar v. State of U.P., , the facts are similar to the facts of this case. In that case also the conviction of the appellant on the circumstantial evidence has been upheld by the Apex Court. In that case witness Mohd. Rizvi; appellant; deceased and others were working as guards. On the fateful day of 13-3-1971 appellant Ram Kumar was on sentry duty from 4.00 P.M. to 6.00 P.M. and he was to be relieved by Mohd. Rizvi and when he was busy with his uniform he heard a sound of gun fire. He saw Constable Badri Singh collapse on the cot and Ram Kumar standing outside the tent with his rifle. Thereupon Mohd Rizvi shouted out Ram Kumar took to his heels. In that case the evidence of Mohd. Rizvi was accepted by the Apex Court as well as the High Court though the Trial Court had rejected the same.
22. It would be quite clear that prosecution has proved beyond doubt that on that day deceased Barpoor Singh was on guard duty at the Central Vehicle Depot between 6.00 P.M. and 8.00 P.M. The appellant had taken up the duty at the main gate of the Central Vehicle Depot about 20/25 minutes prior to 8.00 P.M. and at that time he was armed with a rifle. The prosecution witnesses heard the sound of fire arm and immediately thereafter they found Barpoor Singh lying on the ground with the injury on his back and appellant with aiming rifle in his hands. It has also been further proved that appellant was asked to hand over his rifle and he had immediately done so and at that time in the said rifle there were four live cartridges and one empty cartridge and there were five live cartridges on his person. The appellant was given ten live cartridges and the rifle on 20-10-1984. Barpoor Singh died on account of the gun shot. Besides the appellant nobody else was present in the vicinity with any fire arm with him and the compound has got a boundary wall of the height of nine feet. Therefore, if all these circumstances are taken together then there could not be any hesitation of mind in holding that the said gun shot was fired by nobody else but the appellant himself.
23. Thus, in these circumstances, we hold that the trial Court was quite justified in accepting, the evidence led by the prosecution. We, thus, uphold the order of conviction and sentence passed by the trial Court and dismiss the appeal of the appellant.
24. Appeal dismissed.