S. S. BYAS, J. -
(1.)BY his judgment dated December 13, 1982 the learned Sessions Judge, Sri Ganganagar convicted the appellant Bindersingh alias Bavendra Singh under sec. 302, I P. C. and 27 of the Arms Act and sentenced him to imprisonment for life with a fine of Rs. 500/-, in default of the payment of fine to further undergo six months rigorous imprisonment on the first and one year's rigorous imprisonment with a fine of Rs. 100/-, in default of payment of fine to further undergo one month's like imprisonment under the second count. Substantive sentences were directed to run concurrently while those in default of the payment of fine consecutively.
(2.)SUCCINCTLY stated, the prosecution case is that the deceased-victim Tejasingh was the real elder brother of PW 1 Angrejsingh. They have some more brothers. Though they were residents of village Sagarwala, he used to live in Dhani which they had installed in their fields. The appellant is also a resident of the same village but he and the members of his family lived in Dhani which they had erected in their fields. The fields of the deceased-victim and the accused are situate contiguous. The appellant and the members of his family made unlawful possession over six Kilas of agricultural land belonging to the deceased victim and his brothers. This resulted in strained relations between them. PW 1 Angrejsingh used to operate a flour mill at village 9-G. He used to daily go there from his residence on bicycle or in bus and return in the evening.
On June 2, 1982, Tejasingh went to Ganganagar to take a loan from the Union Bank of India. In the afternoon he boarded bus No. R. J. K. 7457 to go to his village. This bus plies between Ganganagar and Sagarwala and leaves Ganganagar at 4. 30 P. M. and reaches Sagarwala at about 7. 00 P. M. It is alleged that the appellant and his two associates Bantasingh (father of the appellant) and Chaudhary Singh also boarded the same bus. In the way the bus stopped at village 9-G. PW 1 Angrejsingh boarded the bus there and put his bicycle on its roof. He noticed that the appellant was having a 12-bore D. B. M. L. gun with him. Angrejsingh apprehended danger and advised his brother Tejasingh to get down from the bus. Tejasingh accepted the advice. When the bus reached the road-crossing as shown in site plan Ex. P. 2, Tejasingh asked the driver to stop the bus. The bus stopped while taking a turn towards village Jodhewala. Tejasingh and Angrejsingh got down from the bus through the back gate. Bantasingh, Chaudhary Singh and the appellant also got down from the bus through another gate. Bantasingh and Chaudhary Singh directed the appellant to fire the shot at Teja-Singh. The appellant thereupon fired a shot at Tejasingh which hit him on his head. Tejasingh fell down. Angrejsingh immediately ran towards driver's gate and managed to get in the bus. The bus proceeded further and stopped at village Jodhewala. Angrejsingh heard one more gun shot. There PW. 1 Angrejsingh got down, took his bicycle and straight way went to Police Station, Chunawat and verbally lodged report EX. P. 1 of the occurrence at about 8. 30 P. M. The police registered a case and took up the investigation. The Station House Officer Krishnawatar (PW 14) immediately arrived at the place of occurrence and posted some police constables to keep a watch there. Next day in the morning he inspected the site. He found two wads, blood-smeared soil, one bank-pass-book and a packet near the victim's deadbody. All these articles were seized and sealed. The Investigating Officer also prepared the inquest report of the victim's deadbody and the site plan. The post mortem examination of the victim's deadbody was conducted at about 2. 30 P. M. on 3 6-82 by Medical Jurist Dr. D. K. Gupta. He noticed the following ante mortem injuries on his deadbody:- 1. Lacerated wound 1" x 3/4" x brain mellis deep on the left temporal region on the lateral side. Blacking accuchings talloing present. Margins are inverted. Wound is oblique aging to right side and slight backwards. 2. Lacerated wound 1" x 3/4" x thoraxic cavity deep in the contre slight oblique below clavical. Blacking and talloing present. Margins backwards. 3. Lacerated wound 1/8" x 1/8" x thorasic cavity deed on the right side and cavicular region, Corresponding hole is the slight on the back side. The injuries were ante mortem. In the opinion of Dr. Gupta, the cause of death was shock and haemorrhage as a result of injury to brain and right lung due to fire-arm weapon. The post mortem examination report is EX. P. 23. The clothes of the deceased-victim were seized and sealed. The appellant was arrested on June 4,1983. , In consequence of the information furnished by him on June 6, 1982 whilst under police custody, the gun alleged to have been used by him in the commission of the offence was recovered. Co-accused. Bantasingh and Chaudhary Singh were also arrested. One Gandasi was recovered in consequence of the information furnished by accused Chaudhary Singh. The gun was examined in State Forensic Science Laboratory, Jaipur. It was found in working order. On the completion of investigation the police submitted a challan against the appellant and two others viz. Bantasingh and Chaudhary Singh in the Court of Additional Munsif and Judicial Magistrate, Ganganagar, who in his turn committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under section 302, IPC and 27 of the Arms Act against the appellant and under sections 302/34, IPC against the remaining two. The accused pleaded not guilty and faced the trial. In support of its case the prosecution examined 14 witnesses and filed some documents. In defence no evidence was adduced. The defence taken by the accused persons was that of complete denial. On the conclusion of trial the learned Sessions Judge found no incriminating evidence against the accused Bantasingh and Chaudhary Singh. The prosecution story of exhortation and instigation against the accused Bantasingh and Chaudhary Singh was disbelieved. Both of them were consequently acquitted. The charges against the appellant were held duly proved. As a result, he was convicted and sentenced as mentioned at the very out-set.
We have heard Shri M. D. Purohit, learned counsel for the appellant and the learned Public Prosecutor. We have also gone through the case file carefully.
Before proceeding further, we may point out that the prosecution examined six witnesses alleging that they had seen the incident. They are PW 1 Angrej Singh, PW 2 Pooranchand, PW 3 Labhsingh, PW Sukhdeo Singh, PW 7 Jotram and PW 12 Jaspalsingh. All of them except PW 1 Angrejsingh turned hostile and lent no support to the prosecution. PW 2 Pooranchand was the Conductor, PW 3 Labhsingh was the driver and the remaining three were the persons travelling in the bus. PW 7 Jotram and PW 12 Jispalsingh even denied that on that fateful day they were travelling in the bus, or had seen anybody been killed. The remaining three PW 2 Pooranchand, PW 3 Labhsingh and PW 4 Sukhdeosingh admitted that Tejasingh was travelling in the bus and got down at the road-crossing but denied that PW 1 Angrejsingh was then in the bus. According to them when victim Tejasingh got down from the bus at the cross, one man whom they could not identify also got down there. The man who got down with Tejasingh was none of the three accused persons. That man who got down with Tejasingh fired a shot at him (Tejasingh ). It would be proper to briefly notice what has been stated by these three witnesses who were admittedly in the bus.
Pw 2 Pooranchand was Conductor in the bus. He deposed that the bus left Ganganagar at about 4. 30 P. M. on the day of incident. The deceased-victim Tejasingh was travelling in that bus. When the bus reached near the road-crossing where there is a turn for village Jodhewala, Tejasingh asked to stop the bus. Labhsingh (Pw 3) who was driving the bus, stopped it. Tejasingh and one another man got down from the bus there at the turn. The bus proceeded further. But then he heard a gun shot. The bus reached Jodhewala where he was informed at the bus stand that Tejasingh had been killed. From Jodhewala, he and Labhsingh went to Police Station Chunawat in that very bus and lodged a report of the incident. The report was taken down in writing by the Station House Officer and their signatures were taken on it. The witness stated that neither the appellant Bindersingh nor the other two acquitted accused Bantasingh and Chaudhary Singh were there in the bus on that day. He also stated that Pw 1 Angrejsingh did not board the bus at 9 G or at any other place. According to him, Pw1 Angrej Singh did not travel in that bus on that day for any distance. He also stated that he and Labhsingh had reached Police Station, Chunawat at about 7. 00 P M. and remained there upto 10. 00 P. M. During that period Pw 1 Angrejsingh did not come there at the Police Station. Pw 2 Labhsingh was driving the bus. He denied that the deceased-victim Tejasingh, his brother Angrejsingh (Pw 1) and the accused persons Chaudhary Singh, Bantasingh and the appellant were known to him. He stated that he simply heard the gun fire and the passengers travelling in the bus told him that somebody has been killed. He, therefore, took the bus to Police Station, Chunawat and lodged the First Information Report. Pw 4 Sukhdeosingh was travelling in the bus from Ganganagar to go to his village Jodhewala. He stated that the deceased-victim Tejasingh also boarded the bus at Ganganagar. The accused Chaudhary Singh too had boarded the bus at Ganganagar. When the bus reached near the road-crossing where there is a turn for Jodhewala, Tejasingh asked to stop the bus. When the bus stopped, Tejasingh got down. Alongwith him one another person also got down whom he did not know. That man whom he could not identify fired a shot at Tejasingh. The witness stated that that man who had fired the shot at Tejasingh was neither the accused Bindersingh nor the other two co accused Bantasingh and Chaudhary Singh.
(3.)THUS, none of these three witnesses whose presence at the place of incident is admitted by the prosecution, has deposed anything incriminating against the accused appellant. It has not been suggested that these three witnesses had any grudge against the deceased-victim. Of course, they stated in their police statement that accused Bindersingh had fired a shot at Tejasingh but denied to have given these statements before police. They were declared hostile and were confronted with their police statement but they stuck to their denial, through out. According to them the accused-apppellant Bindersingh was not travelling in the bus on that day.
A gun was recovered in consequence of the information furnished by the accused-appellant. According to the learned Sessions Judge this recovery does not connect him with the commission of the murder of Tejasingh. Since the recovery of the gun has been discarded by the trial court, we need not discuss this aspect of the matter.
The only evidence on which the accused was convicted is that of PW 1 Angrejsingh. Mr. Purohit, appearing for the appellant, contended with his usual vehemence that this witness was not travelling in the bus and as such he had not seen the incident. His claim to have seen the incident is unfounded and stands falsified for multiple reasons. This witness was the brother of the deceased-victim. His antecedents was not good. Admittedly he was challaned by police for vagabondism a few days before the occurrence. He was in litigation with the accused-appellant and the members of his family. It was argued that though the conviction can be based on the testimony of a soletary witness, but then in that case the testimony should be of sterling worth which can be safely accepted and acted upon. The conduct of the witness shows that he did not see the occurrence. After lodging the first information report he did not accompany the police and went away silently to 9-G. There are then major discrepancies inter se between what he stated before police and during trial The testimony of this witness was neither convincing nor so strong so as to seek the conviction without any corroboration The corroboration is lacking. It was argued that in these circumstances the conviction of the accused-appellant should not be maintained. In reply, the learned Public Prosecutor supported the judgment of the court below and submitted that the testimony of PW 1 Angrejsingh has been found trustworthy by the trail court There are no good and cogent reasons to up-set the conclusions of the trial court.