H. N. Kapoor, J. - (1.) THIS appeal has been filed by Sharda against the order and judgment dated 21-5-1979 of VI Addl. Sessions Judge, Allahabad in Sessions Trial No. 311 of 1978 convicting him under Sec. 302 IPC and sentencing him to imprisonment for life. The prosecution case:, as revealed in the FIR and by the prosecution evidence briefly stated is as follows : Sharda was being prosecuted in a case under Sec, 25 Arms Act, 1959 in which Rajjan deceased was a witness. That incident had taken place about 8 or 9 days prior to the occurrence. On 28-6-1978 at about 6 P. M. when Rajjan along with his brother Lallu (PW 1) and Dwarka Prasad (PW 2), whose field he was cultivating on Batai, was going to the mohalla of Pasis known as 'Pasiyana' of village Ajhwa within police station Saini district Allahabad and had reached in front of the house of Mallu the appellant armed with a gun arrived there; one unknown person who was his companion too was with him. He was armed with a pistol. Sharda called Rajjan near him and enquired from him as to whether he would depose against him in the case in which he was cited a witness. Rajjan replied that ha had no fear in stating the truth. Sharda, therefore, got enraged and said that he would not be allowed to appear as a witness in the court. Saying so, he fired at him with his gun twice. His companion also fired at him with his pistol. Rajjan received several gun shot injuries and he died on the spot. Lallu and others raised alarm. Many persons had arrived from the neighbourhood. Both the miscreants ran away towards west and made good their escape. It is also in evidence that Rajjan and others had gone to Pasiyana in search of the labourers. Lallu then went to the police station and lodged a written report at 8 P. M. Head Moharrir Sri Ram Ji Misra made an entry in the G. D. He prepared a chick report on the basis of the written report and registered a case against Sharda and his associate under Sec. 302 IPC. SI D. B. S. Malik (PW 5) atonce took up the investigation of the case. He interrogated Lallu at the police station. He then went to the site and prepared an inquest report. He sent the dead body to the mortuary along with constable Ram Shankar Rai. The Investiating Officer inspected the site and prepared the site plan, Ex. Ka. 5. He found an empty cartridge of 12 bore lying there. He took the same in his possession. He than interrogated Dwarika Prasad and other witnesses. He also took the blood stained and ordinary earth from the site. After completing the investigation he submitted the chargesheet against the appellant. It appears that a suspect was put up for test-identification but no chargesheet could be submitted against him as there was tie evidence of only one identifying witness against him.
(2.) THE post mortem examination of the dead body was conducted by Dr. Suneel Verma (PW 6) Medical Officer, Moti Lal Nehru Hospital, Allahabad on 29-6-78 at 3 PM. THE doctor found the following ante mortem external injuries on the dead body ;-(Injuries quoted-Editor). On internal examination the doctor found that the right lung in lower aspect with upper surface and liver ware lacerated with wound corresponding injury No. 3 and this injury was passing on the posterior abdomen wall of left lumber region. From left lumber region two big pellets were recovered. Pieces of wadding were also recovered. From third side pieces of wadding and 6 pellets were recovered. Two liters of blood waa present in the abdomen cavity. In the opinion of the doctor the death was caused due to shock and haemorrhage as a result of gun shot injury. The appellant was duly tried after having been committed to the court of Session. He denied the prosecution allegations and stated that he was falsely implicated in this case on account of enmity. According to him the witnesses deposed against him under the pressure of the police. He stated that he was once challaned under Section 395/397 IPG from this very police station but he was acquitted. He then stated that a false case under Section 25 of the Arms Act, 1959 was also launched against him by this police: station. There was no hearing in that case. He did not know if Rajjan was a witness against him in that case. He examined Ram Newaj Misra, Court Moharrir as DW 1 in order to show that Sharda accused could not be identified by any person in the test identification parade in a case No. 135 of 1978 under Sec. 395/397 IPC. No other witness was examined in defence. The learned Sessions Judge found the prosecution case proved against the appellant and convicted and sentenced him as stated above. Feeling aggrieved he has filed this appeal.
(3.) IN support of its case the prosecution has examined Lallu (PW 1) and Dwarka (PW2) as eye witnesses of the occurrence. Both these witnesses have corroborated each other on all material particulars and have fully supported the prosecution case as stated in the FIR. The learned counsel for the appellant has criticised their evidence on the ground that they are highly interested witnesses, one being the real brother of the deceased and the other being the person, whose field the deceased was cultivating on Batal. There is no law that the persons closely connected with the deceased should not be believed. No doubt, their evidence has got to be carefully scrutinized. Learned counsel for the appellant has argued that their presence was improbable because they have admitted that It was a Bazar day and the labourers generally go to the market and, as such, were not easily available. Lallu, no doubt, stated that he could not get any labourer in Chamariyana, and then he went to Pasiyana. Even there he found that mostly women had collected after the occurrence and most of the male members were not there. But he has not stated that it was not: possible to engage any labourer for working in the field that day. He did not have time to talk to the labourers as this incident took place. Dwarka has also stated that the agricultural labourers were engaged there and not in the market. There was thus nothing improbable for Rajjan and others in going there. The learned counsel for the appellant has also drew our attention to a slight contradiction in the statements of these two witnesses. Lallu stated that Rajjan and Dwarka had picked him up from his house while Dwarka stated that Lallu and Rajjan were coming from the direction of the tube well and they picked him from his house. He has stated that there was only the difference of 20 paces between his house and Lallu's house. It was,, therefore, not possible to remember these minute details, as to whether Lallu and Rajjan had gone to the house of Dwarka or Rajjan and Dwarka had gone to tie house of Lallu. The fact remains that the three persons went from that very place to Pasiyana. Learned counsel for the appellant has also argued that according to Lallu the assailants were at a distance of about one pace from Rajjan when he was shot at, while some injuries were found to have been inflicted from the distance of about more than 6ft. The fact remains that the doctor found that injuny No 7 was inflicted from a distance of about one or two ft. and injury No. 3 was inflicted from a distance of less than six ft. Even some wadding pieces were found embedded inside. Some injuries, therefore, were inflicted from a very close distance. Distance between the other assailant and the victim might not be the same. It is also possible that by the time the other shot was fired the victim might have moved slightly away. Learned counsel for the appellant has laid great stress on the fact that Lallu stated in paragraph 23 of his statement that he did not get it written in the FIR that Sharda had fired two shots at his brother with his gun and his associate had fired one shot with his pistol He then stated in paragraph 24 that he had stated before the Investigating Officer that he had fired with his gun at his brother two shots, one after another and Sharda's associate had fired one shot with his pistol at him. He stated that be had stated before the I. O. that Sharda had fired once and then fired another time after reloading and could not give any reason as to why the Investigating Officer has not taken down this statement. It would mean that he was confronted with the last sentence only and not with the first part. It would only mean that he had not given the details as to how two shots were fired and whether they were fired after reloading; otherwise there was no contradiction between the statement given in the FIR or the statement made u/Sec. 161 CrPO cc even made in the examination-in- chief in the court of session. It is not understood as to why he was allowed to be confronted with this part of the statement in the FIR when there was, in fact, no material contradiction between that statement and the statement made by him in the court. It appears that an attempt was made by the cross-examiner to mislead him otherwise he has stood the test of cross-examination well and nothing could be elicited in his cross- examination for discarding his evidence. The other witness Dwarka Prasad also remained unshaken during the course of cross-examination.;