MATHUR J. - (1.) THIS appeal is directed against the judgment dated 7. 8. 1980 passed by the Sessions Judge, Sri Ganganagar convicting the appellant Hanuman of offence under Sec. 302 I. P. C. and sentenced him to imprisonment for life and to pay a fine of Rs. 200/-and in default of payment to further undergo two months rigorous imprisonment.
(2.) THE prosecution case in brief is as follows: On 18. 11. 1979 at about 3. 00 P. M. P. W. 1 Om Prakash and deceased Lalchand went to the field of deceased Lalchand to see the cotton crop. THEy stayed for half an hour at the Dhani of Ram Pratap Bishnoi where accused Hanuman was also sitting. After some time both of them went to the field and returned back to Dhani. At that time also Hanuman was sitting there. THEy were sitting in front of the house of Tiku Ram, Lalchand asked Tiku Ram to bring radish. It was tied on the carrier of the cycle. From the house of Tiku Ram, they proceeded on cycle towards their village. Accused Hanuman also followed them. At that time P. W. 2 Patram and P. W. 3 Brijlal were also at the Dhani of Ram Pratap. THEy were followed by accused Hanuman. When P. W. 1 Om Prakash and deceased Lalchand had gone, just about one bigha from the Dhani accused Hanuman challenged Lalchand saying ``. . . ewnksa dks rko nsys. . . . ''. Lal Chand turned back to look at the accused, accused Hanuman fired the pistol at him which hit below the left side of the ribs. THE accused after firing ran away. Lalchand fell down. Om Prakash made a cry saying ``lalchand has been killed''. THE further case of the prosecution is that the accused Hanuman ran through the Dhani of Ram Pratap which was witnessed by P. W. 2 Patram and P. W. 3 Brijlal. At that time the pistol was in the hand of the accused. P. W. 1 Om Prakash went to the village and informed his brother P. W. 6 Vishnu of the incident P. W. 6 Vishnu immediately rushed to the place of incident. Om Prakash thereafter informed the wife of Lalchand. THEreafter he went to the village thereby ``3y'' and arranged a tractor of Nakshetra Singh. Number of villagers had assembled at the placed of occurrence by that time. P. W. 6 Vishnu seeing the Lalchand told Om Prakash that he has died. Leaving one Sahiram and P. W. 6 Vishnu on the spot, Om Prakash approached P. W. 5 Ramchandra. THE entire incident was narrated to him and thereafter P. W. 5 Ramchandra and P. W. 1 Om Prakash went to the Police Station for lodging the First Information Report. THE police report was registered as Ex. P1 at Police Station, Ganganagar at 11. 45 P. M. P. W. 15 Gopal Ram, S. H. O. , Police Station, Ganganagar informed P. W. 13 Bhopal Singh, Dy. S. P. and proceeded to the place of incident. He prepared the inquest. THE dead body was sent for the post-mortem. THE accused was arrested on 22. 11. 1979. THE Pistol was recovered in pursuance of the information given by the accused. After usual investigation the police laid a chargesheet against the accused appellant for offence u/s. 302 I. P. C. The accused appellant denied the charge and claimed trial. The prosecution in support of the case examined 15 witnesses. The prosecution relied on the direct evidence of P. W. 1 Om Prakash corroborated by the testimony of P. W. 2 Patram and P. W. 3 Brijlal, P. W. 5 Ramchandra and P. W. 6 Vishnu. The prosecution also relied on the recovery of the pistol. In statement u/s. 313 of the Criminal Procedure Code the accused stated that all the evidence appearing against him is false and fabricated. The trial court rejected the evidence of recovery of pistol. However, relying on the testimony of eye witnesses P. W. 1 Om Prakash corroborated by evidence of P. W. 2 Patram and P. W. 3 Brijlal and the medical evidence held that the prosecution succeeded in establishing the case against the accused appellant and accordingly convicted him of offence u/s. 302 I. P. C. and sentenced as noticed above. Mr. B. D. Swami learned counsel appearing for the appellant has assailed the conviction of the appellant on various grounds. It is contended that a proper scrutiny of the evidence would show that the incident had taken place not at the time of sun set but some time lateron. It was a dark night and as such the eye-witnesses and other witnesses could not have witnessed the incident. The learned counsel has also read the evidence and invited our attention to certain omissions and improvement in the statements of P. W. 1 Om Prakash and the other witnesses namely P. W. 2 Patram and P. W. 3 Brijlal. It is also submitted that there is a delay in submitting the First Information Report. It is emphasized that there is inconsistency in the ocular and medical evidence. It is also pointed out that there was no motive for the accused to commit the murder. It is lastly contended that the link evidence in the case in missing. The learned counsel has supported the finding of the trial court with respect to the recovery of pistol. On the other hand, the learned Public Prosecutor assisted by Shri P. N. Mohanani counsel for the complainant has submitted that there is no reason to disbelieve the testimony of P. W. 1 Om Prakash, which is corroborated by the medical evidence and other witnesses. The learned counsel also submitted that the learned Judge committed an error in rejecting the evidence of recovery. The learned counsel has supported the judgment of the trial court on all other counts. We have scanned the prosecution evidence carefully. We shall deal with each contention in seriatum. The learned counsel has emphasized with respect to the timing of incident in order to show that the incident occurred at the time when the sun had disappeared and it was not possible for the alleged witnesses to witness the incident. It is submitted that P. W. 1 Om Prakash has stated that at about 3. 00 P. M. he had gone to the field alongwith deceased Lalchand. In the cross examination, he has stated that he reached to the Maliyon Ki Dhani (place of incident) at about quarter to four or four. Before going to see the crop he was talking with deceased Lalchand and Hanuman for about an hour. Thereafter they stayed in the Maliyon Ki Dhani for about half an hour after taking round. Thereafter they stayed for about half to quarter an hour there. Thereafter they left towards the place of incident. Even according to this calculation, the incident must have taken place latest by 6. 30 P. M. The contention of learned counsel is that it is admitted that the time of sun set was 5. 30 P. M. The trial court has found that it may be difficult to fix the exact time of incident but the incident has taken place at a time when there was sufficient visibility. P. W. 1 Om Prakash was alongwith the deceased and therefore even if the incident had taken place at 6. 30 P. M. it was not difficult for him to see the accused Hanuman. It is submitted by the learned counsel that P. W. 2 Patram and P. W. 3 Brijlal could not have seen the incident. In fact these two witnesses are not the eye witnesses. Thus, we are not impressed with the contention raised by the learned counsel that it was a dark night and it was not possible for P. W. 1 Om Prakash to see the incident.
(3.) P. W. 1 Om Prakash has narrated the incident as given in the First Information Report. There is a lengthy cross examination, but nothing has been elucidated to discredit the testimony of this witness. P. W. 2 Patram has stated that in village Chak 2y he had gone to Brijlal P. W. 3 for taking medicine as he was suffering from fever. He also stated that Brijlal used to give treatment for petty diseases. The house of Brijlal is near to the house of Tikuram. When he reached there in the afternoon near the house of Tikuram, deceased Lalchand, Om Prakash and accused Hanuman were standing. Lalchand had asked Tikuram to bring radish, which were lateron tied on the carrier of the cycle. Lalchand and Om Prakash left towards their Dhani on a bicycle. They were followed by accused Hanuman. They had just travelled just for about 1 Bigha or 1 1/2 Bigha, he heard of the pistol fire. He also heard the shouting of Om Prakash saying that Lalchand has been killed. He saw Hanuman running away from their side a pistol in his hand. He tried to inquire from him but the did not respond. P. W. 3 Brijlal has stated that he has been living in Chak 2y on the Dhani of Ram Pratap for the last 20 to 22 years. He has stated that that Dhani is also known as Maliyon Ki Dhani. He also stated that by profession he is a farmer but he also gives treatment for petty diseases. On 18. 11. 1979 witness Patram had come to him for taking treatment of fever. While he was talking with Patram and Tikuram, P. W. 1 Om Prakash, deceased Lalchand and accused Hanuman proceeded towards the canal. They had just moved for about 1 Bigha or 1 1/2 Bigha, he heard of a pistol fire. He also heard the shout of Om Prakash saying that Lalchand has been killed. Om Prakash ran towards the canal. he also saw accused Hanuman running from that side. A pistol was in his hand. In the night at about 8. 00 P. M. on the arrival of Sahiram and Vishnu he went near the dead body. Inspite of the lengthy cross examination, nothing has been elucidated to discredit the testimony of this witness. P. W. 5 Ramchandra has stated that P. W. 1 Om Prakash had come to him at about 8 or 9 in the night and informed that the Lalchand has been killed by Hanuman. He also asked Om Prakash to accompany him to the Police Station. He went to the Police Station alongwith P. W. 1 Om Prakash and lodged the First Information Report. He also stated that 10 to 11 days prior to the date of incident the accused Hanuman had visited him and complained that Lalchand had promised to lease the land to him but he has leased the same to Ram Pratap. He also stated that he is a poor man and if Lalchand does not lease the land to him, his children will strive. As per the saying of P. W. 5 Ramchandra the accused Hanuman was unhappy on this count with Lalchand. ;