- (1.) This appeal by way of special leave is directed against the concurrent findings of the Additional Sessions Judge and the High Court whereby the appellant stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and a fine of Rs. 500 and in default thereof to undergo simple imprisonment for a period of two months.
(2.) The prosecution story is as follows: 2.1 The father of P.W. 1 Ramesh Chander, the first informant, and the deceased Ashok Kumar, was murdered several years earlier by the gang of Makhan Singh Daku and the suspicion was that it had been done at the instance of the family members of Hari Singh Thakur, the appellant herein. At about 11:00a.m. On 22/05/1989, P.W. 1 - Ramesh Chander and Ashok Kumar went to the village well to draw water and were carrying a rope and a bucket with them for that purpose. At that very moment, the appellant Hari Singh also reached the well carrying his licensed muzzle loading shot gun (Topidar shot gun) and after hurling abuses at Ashok and saying that as he had often insulted him he would have his revenge, fired a shot hitting him in the chest. Ramesh Chander ran to save his brother but the appellant threatened him with dire consequences on which he ran away. The incident was seen by several other persons including Kalawati, the mother of Ramesh Chander and the deceased from the house of Captain Patel and in addition several other persons as well. Ramesh Chander, however, made his way to police post Kanhar about 7 kms. distant and the formal FIR was registered at Police Station, Pahargarh at about 1:30p.m. The police thereafter reached the site of incident and the necessary investigations were made. The dead body was also sent for the post mortem examination. The accused was taken into custody on 16th June, 1989 and his licensed muzzle loading shot gun, the alleged murder weapon, was also seized. During the course of the investigation, it also transpired that in addition to the above named witnesses Bharat, P.W. 2 son of Ramesh Chander had also witnessed the incident from the house of Captain Patel. On the completion of the investigation, the appellant was charged and brought to trial as already mentioned above. The trial court observed that there was absolutely no reason to doubt the presence of Ramesh Chander, P.W. as his presence was natural in the light of the fact that the incident had happened in broad day light when the two brothers had gone to the village well to draw water. The argument that Bharat P.W. 2 had not been named in the FIR creating a doubt as to his presence was also repelled by observing that Ramesh Chander had apparently not seen him, as the house of Captain Patel was some distance away. The Court also observed that though in the FIR it had been mentioned that the injury had been inflicted on the right side of the chest but the post mortem report showed the injury on the left side, was not a material circumstance as it was impossible for any witness to make out as to where a bullet had hit after it had been fired.
(3.) The trial court, accordingly, convicted the appellant. The judgment aforesaid stands maintained by the High Court as well.;