Dr. ANAND, J. - (1.) This appeal under S. 2(a) of the Supreme Court (Enlargement of Appellate Jurisdiction) Act, 1970 is directed against the judgment and order of the High Court of Rajasthan dated 21-8-1985 in Criminal Appeal No. 494/1974 convicting the appellant for an offence under S. 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life by reversing an order of his acquittal recorded by the Additional Sessions Judge, Ganganagar vide judgment and order dated 13-2-1974.
(2.) According to the prosecution case, Mani Ram appellant and his brother Hari Ram had removed the fencing over the field of Hazur Singh deceased about 20-22 days prior to the occurrence, which took place on 22-6-1972 at about 12-30 noon, and that action of the appellant and his brother had resulted in a quarrel between the brothers and Hazur Singh and had created ill feelings between the parties. On the fateful day of 22-6-1972, Hazur Singh deceased had gone to his field. His wife Surjeet Kaur PW I and his son Jaskaran P.W. 2 later on went to the field carrying meals for Hazur Singh. After Hazur Singh had taken his meal, all the three were returning to their village from the field at about 12-30 p.m. Hazur Singh was ahead of Surjeet Kaur and Jaskaran P.Ws. by about one kila. When Hazur Singh reached near the water-course of the village, the appellant Mani Ram was seen coming from the village side. He gave a 'lalkara' to Hazur Singh and immediately fired a shot from his pistol at him. His brother Hari Ram who was also armed with a gun exhorted Mani Ram appellant to kill Hazur Singh so that the enemy may not escape. Mani Ram thereupon fired three more shots from his pistol at Hazur Singh, who fell down and died at the spot. At some distance away, Sukh Ram PW. 4 was present and he also witnessed the occurrence. Surjeet Kaur P.W. 1 accompanied by Ganpatram went to police station Tibi and lodged the first information report, Ex. P/ 1, at about 3.00 p.m. A case was accordingly registered and the investigating officer, Nisar Ahmed, P.W. 13, visited the spot. He prepared the site plan, the site inspection note and effected recovery of an empty cartridges vide memo Ex. P/ 6 from the spot. The body of the deceased was sent for post-mortem examination, which was conducted by Dr. K. C. Mittal P.W. 9. The autopsy report was prepared. The following injuries found on the dead-body of Hazur Singh deceased: (i) Gun shot wound oval in shape with inverted margins, bleeding size 3/4" x 1/2" in the mid right hypochendrium wound is traced upward and backward by the probe. Shirt is torn over the wound. (ii) Gun shot wound size 1 3/4 " at the lower end of the left side of chest in midaxiliary size. The edges are inverted. Wound is continued downwards and posteriorly as he is identified by probe. Shirt is torn. (iii) Gun shot wound with inverted margins. Size 3/4" x 1/2" with ulterior medical size of lower and of left arm. Little bleeding. Wound is printing upward and posterior through bone. Shirt over wound is torn. (iv) Gun shot wound 1 1/4" x 1/4" with margins averted ragged with severe bleeding on the posterior-lateral size of the upper fifth of left arm. Shirt over wound is torn. (v) Gun shot wound in intra-scapular region right side 1 " x 1/4" x 3/4" circular everted and ragged margins with severe bleeding. (vi) Gun shot wound mid-back left side 11/2" x 1 ragged and everted margins with severe bleeding. According to the Doctor, the death was caused due to rupture of vital organs like liver, lung and big blood vessels causing severe hemorrhage and shock as a result of the gun shot injuries and the same were sufficient in the ordinary course of nature to cause death. After completion of the investigation, the appellant along with his brother Hari Ram were sent up for trial. While the appellant- wag charged for an offence under S. 302, IPC, Hari Ram was charged for the offence under S. 302/ 114, IPC. Both, the appellant and Hari Ram, were also charged for an offence under S. 27 of the Arms Act. After the trial, the learned Sessions Judge found that there was no case made out against Hari Ram at all and that the prosecution had also not been able to prove the case against the appellant beyond a reasonable doubt. As a consequence, both Hari Ram and the appellant were acquitted of all the charges by the trial court. On the State filing an appeal against the judgment and order of acquittal passed by the Trial Court. the High Court allowed the appeal of the State in part and while it set aside the acquittal of the appellant and convicted him for an offence under S. 302, IPC and sentenced him to suffer imprisonment for life, the acquittal of Hari Ram was maintained. While the State has not questioned the acquittal of Hari Ram, the appellant, as already noticed, has filed this appeal.
(3.) Mr. Mahabir Singh, learned counsel for the appellant, submitted that the judgment of the Trial Court could neither be styled as perverse nor even as unreasonable and there were no other substantial and compelling reasons which could justify the setting aside of the order of acquittal and, therefore, the High Court should not have interfered with the order of acquittal. Learned counsel urged that the presence of undigested food in the stomach of the deceased belied the prosecution case and that the Trial Court was right in holding that Hazur Singh could not have taken the meals at the time stated by his wife Surjeet Kaur P.W. 1 and his son Jaskaran P.W. 2 or murdered at 12-30 p.m. as alleged. The learned counsel also submitted that the inordinate delay in sending the empty cartridges to the ballistic expert went to show that the possibility that the same had been substituted by the investigating agency could not be ruled out and therefore the conviction of the appellant by the High Court was not justified.;