MEHTA, J. -
(1.)THE appellant Tej Singh has preferred this appeal against the Judgment dated October 25, 1978 of the Additional Sessions Judge No. 2, Hanumangarh passed in Sessions Case No 76 of 1977. THE appellant and the others viz , Raj Singh and Darshan Singh were prosecuted under s. 302/34, 307/34, 3?3 IPC and under s. 27 of the Arms Act. THE learned Additional Sessions Judge acquitted Darshan Singh and Raj Singh but however, convicted the accused-appellant Tej Singh under s. 302 and 307 IPC and sentenced him to imprisonment for life under s. 302 IPC and five years' rigorous imprisonment under s. 307 IPC.
(2.)BRIEFLY stated the prosecution story is that P. W. 5 Harnek Singh lodged a F. I. R. at Police Station, Sangaria on October 31, 1976 at 3 A. M. alleging that the accused-appellant Tej Singh is his younger brother. Harnek Singh (P. W. 5) had no issues and he asked P. W. 1 Major Singh to look after his fields and properties The accused-appellant Tej Singh became annoyed and in consequence thereof, he threatened P. W 1 Major Singh to return to his village. It has also been alleged that on October 20, 1976, P. W. 5 Harnek Singh lodged a complaint under s. 107 Cr. P. C. against the accused-appellant Tej Singh stating therein that there is a danger to the life of Major Singh (P. W. l ). In the First Information Report Ex. P. 2), it has been stated that Harnek Singh (P. W, 5) was informed by Tej Singh son of Ranjeet Singh (P. W,8) about the incident. Thereafter, he contacted the Sarpanch of the village and left for the Police Station on his advice. He further submitted that in the way at a distance of about 5 to 7 miles, Mukand Singh (P. W. 2), who is also an eye witness of the occurrence, informed him about the incident. Thereafter, he and Mukand Singh (P. W. 2) went to the Police Station and lodged the F. I. R. (Ex. P. 2 ). P. W. 5 Harnek Singh has submitted that his wife Mukand Kaur has been shot dead by the accused-appellant Tej Singh. The Police started investigation and the Inquest Report and the Cite Memo were prepared by the Investigating Officer. Blood stained clothes of the deceased and earth were seized and sent for chemical examination, P. W. 6 Dr. Swadesh Mitra Saini conducted the autopsy of the deceased Mukand Kaur and prepared the Post Mortem Report (Ex. P. 3 ). The deceased Mukand Kaur had sustained the following injuries on her person: "l. A lacerated wound with inverted edges with blackening tatooing 1-1/2 x 1-/12" on left side of chest anteriorly below the mammary gland part of stomach and omantumbuldging out of wound blackening disappeared on washing. 2. Seven lacerated wounds with inverted edges with no tatooing on left iliac region 0. 2" x 0. 15" each wounds were present in two parallel rows separated by 1" of normal skin. 3.Four lacerated wounds with inverted edges with no tatooing 0. 2" x 0. 15" each on left thigh & pubic region anteriorly three wounds on upper part of thigh anteriorly and one wound on pubic region left side. 4.One incised wound 1-1/2 " x 0. 2" by skin deep on chest and anteriorly in mid line near neck horizontally placed. 5.One punctured wound 0. 3" x 0 2" x 0. 3" on left side of neck anteriorly near mid line. 6.One incised wound 1-1/2" x 0. 2" x skin deep on right clavicular region near sternal and, horizontally placed. Internal Injuries - Stomach, some coils of small intestines, left kidney, spleen, left lobe of liver, left dome of dis-phragm, lower lobe of left lung, lacerated blood present in plurae and peritoneal Cavity. Left sixth and seventh ribs fractured anteriorly. Pieces of onion and some food material was also found in peritoneal cavity. Small and large intestines were injured in lower portion on left side, some clotted blood was present in palvis, a deformed pellet was found emboedied in right superior pubic region. In all 58 small pellets were recovered from injured structures, ploural & peritoneal cavity. Four pieces of cork recovered from stomach. These pellets & corks pieces were sealed and handed over to police. " The Doctor opined that the death was due to shock and haemorrhage of vital fractures due to injuries on stomach small and large intestines, left kidney, spleen left, lobe of liver left dome of dis-phragm, left lung, left sixth and seventh ribs. According to the Doctor, all these injuries were anti-mortem in nature and injury Nos. 1,2 and 3 were sufficient to cause the death in the ordinary course of nature.
On the same day, P. W. 6 Dr. Swadesh Mitra Saini examined P. W. 2 Mukand Singh on the police requisition and found the following injuries on his person: 1. Bruise with linear abrasion in centre 2" x J" on right arm laterally tangentially placed on lower one third. 2. Bruise l-1/2 " x1/4" on right arm lateral posteriorly, below the upper injury tangentially placed. On the basis of the information furnished by the accused-appellant Tej Singh, the Police recovered a gun, which was in possession of the accused-appellant and forwarded it to the Forensic Science Laboratory. The report of the Forensic Science Laboratory dated January 18, 1977 has been received. This report has not been tendered in evidence and has also not been marked as an Exhibit in this case.
On behalf of the prosecution PW 1 Major Singh, PW 2 Mukand Singh and PW 4 Gurdayal Singh have been examined as eye witnesses. PW 4 Gur-dayal Singh has not supported the case of the prosecution and he has turned hostile.
We have heard Mr. M. L. Garg, learned counsel for the accused-appellant and Mr. Niyajudeen Khan, learned Public Prosecutor for the State and have also gone through the record of the case.
In the first instance, Mr. M. L. Garg, learned counsel for the appellant has contended that the FIR (Ex. P. 2) is concocted one and it has been prepared after investigation. As far as the question of preparation of the FIR after investigation is concerned, we do not find any force in the submission made by the learned counsel for the accused-appellant. Learned counsel for the accused-appellant submits that the occurrence has taken place on October 30, 1976 and the FIR has been lodged on October 31, 1976 at 3 A. M. The distance between the Police Station and the place of occurrence is about 14 miles and the FIR has been received by the Court on November 1, 1976. As such, we do not find that there is any inordinate delay in sending the FIR to the Court.
(3.)LEARNED counsel for the appellant has pointed out number of factors to show that the FIR is a concocted one. LEARNED counsel submits that in the FIR, it has been mentioned that PW 5 Harnek Singh saw Tej Singh son of Ranjeet Singh was coming on the tractor while he was going to his village at 6 PM. LEARNED counsel further submits that Tejsingh has not been produced as a witness and as the truthfulness of the FIR which has been lodged by PW 5 Harnek Singh, the husband of the deceased, on the basis of the information given by Tejsingh throws a cloud of doubts. The learned Public Prosecutor, on the other hand submits that PW 8 Baltej Singh has been examined as a witness and he is called also as Tej Singh. PW 8 Baitej Singh has not supported the case of the prosecution and has turned hostile. He has specifically stated that he never met Harnek Singh (PW 5) and has not informed him about the incident.
Learned counsel submits that Sarpanch has not been produced by the prosecution to substantiate the fact that at his instance PW 5 Harnek Singh went to lodge the FIR, Learned Public Prosecutor submits that the Sarpanch is not a material witness in this case and as such, his examination was not at all necessary. He submits that the Sarpanch is having no personal information and he is the hearsay witness and he does not support the case of the prosecution.
It was further submitted by the learned counsel for the appellant that in the FIR, it has been mentioned that when PW 5 Harnek Singh was going to inform the police, near Hirasingh Wala Chak, his brother-in-law Mukand Singh met him and informed about the incident. According to the learned counsel, the prosecution has come with a cleir case that Mukand Singh is an eye witness and he was at the spot at the time of the incident. It is an admitted position that Hirasingh Wala Chak is at a distance of about 5 to 6 miles from the place of occurrence. Learned counsel submits that the prosecution has come with a clear case that PW 2 Mukand Singh ran away from the incident. He submits that the natural course will be that he will go to the village Nukera where his brother-in-law PW 5 Harnek Singh was living. It is also an admitted position that the village Nukera is at a distance of about 3 to 4 furlongs from the place of occurrence. Learned counsel submits that even if it is assumed that PW 2 Mukand Singh might be feeling fear of going to the village Nukera for informing his brother-in-law Harneksingh (PW 5) about the incident, even then it cannot be expected from Mukand Singh (PW 2) that he will run away four miles and meet as a co-incidance near Hirasingh Wala Chak. Learned counsel for the appellant has invited our attention to this fact that the incident had taken place at 5 P. M. and PW 5 Harnek Singh left his home at about 6 P. M. for bringing the milk and in the way, he was informed by PW 8 Baltej Singh. He further submits that the case of the prosecution is that thereafter without going on the spot, Harnek Singh (PW 5) left for the village and went to the Sarpanch. He submits that after seeing Sarpanch and taking his advice, Harnek Singh went to the Police Station to lodge the FIR. Even if we accept the case of the prosecution, even then the position will be that Harnek Singh left at about 8 P. M. Thus, there will be difference of about 2 to 3 hours between the time of occurrence and leaving the village for lodging the FIR.