We have heard the learned counsel for the
parties at length.
The learned counsel for the appellants has
raised several issues before us, more particularly, (i)
that some of the accused who were similarly placed had
been acquitted by the trial court; (ii)that the
evidence of the injured eye-witnesses could not be
entirely believed; and (iii) that the statements of the
eye-witnesses made in Court vis-á-vis their statements
under Section 161 of the Code of Criminal Procedure had
clear improvements which cast a doubt on the
prosecution story; (iv) that the recording of the FIR
had been inordinately delayed and the time so taken had
been utilised to concoct a false story; and (v) that
the non-examination of the Investigating Officer had
caused prejudice to the accused as it had not been
possible for them to ascertain from his statement as to
why only an empty cartridge case of 12 bore had been
recovered from the place of the incident and as to why
no efforts had been made to effect recoveries of the
weapons used in the incident.
We find that each of these issues has been dealt
with by the trial court as well as by the High Court
and cogent reasons have been given by both courts as to
why the case of the appellants before us and those of
the accused who have been acquitted by the trial court
were different in their circumstances. We cannot lose
sight of the fact that it is the admitted case on all
sides that the incident had happened in the residential
house of the complainant party and had been
precipitated on account of the incident two days
earlier wherein P.W. - Rai Singh had been beleagured
as he had misbehaved at the complainant's home after
taking excessive drink. The nature of the injuries
clearly show that they had been caused by fire arms.
Mr. Sadique, the learned counsel for the
appellants has, however, argued that the katta which
was allegedly in the hands of two of the appellants
would ordinarily use a bullet and not a cartridge and
as no bullet wound had been detected or any bullet
recovered from the body, the entire prosecution story
stood falsified. We find absolutely no merit in this
submission for the simple reason that a katta can fire
a cartridge of 12 bore as well and there is universal
rule that a rifle catridge alone can be fired from such
a weapon. The medical evidence including a large
number of x-rays taken from the body of the deceased
and also the injured persons reveals the presence of
radio opaque shadows which leads to the only
conclusion that a cartridge firing pellets had been
used. It is also true that the Investigating Officer
had not been examined and no cogent reason had been
given for this omission. We find, however, that no
prejudice has been caused to the accused on this
account as the necessary benefit has been given to the
accused party as some of them have been acquitted. The
mere fact also that weapon used in the incident had not
been recovered does not detract from the evidence of
the seriously injured eye-witnesses. In any case,the
trial court has separated the grain from the chaff and,
granted the benefit to those of the accused persons
whose involvement was in doubt.
We, accordingly, dismiss this appeal.