- (1.) THIS appeal is directed against the judgment passed by the learned Additional Sessions Judge, Raisinghnagar dated 9. 11. 1987 by which the appellant Omprakash was convicted u/sec. 302 I. P. C. and Section 27 of the Indian Arms Act and sentenced to imprisonment for life on the first count and one year's rigorous imprisonment and a fine of Rs. 200/- in default to under go one month's imprisonment on the second Court with an order that the substantial sentences shall run concurrently.
(2.) BRIEFLY stated the prosecution case against the appellant is that he tried to outrage the modesty of Lichhma, wife of Pala Ram P. W. 7, a few days prior to the date of the occurrence i. e. 11. 7. 1986. Birbal P. W. 4 and deceased Kaluram are said to have sided Palaram and that caused annoyance to the appellant and he, in the night of 11. 7. 1986, went to the house of deceased Kaluram at 10 P. M. and fired a shot causing injury on the back of Kaluram. Kaluram was taken to Anupgarh hospital by his father Patram and 5-6 other persons. Dr. Kailash Chandra Sharma P. W. 6 sent the information vide Ex. P-5 at Police Station Anupgarh. S. H. O. Sukhdev P. W. 11 reached the hospital and recorded the statement of injured Kaluram and sent that statement to Police Station for registering the case. It was treated as first information report. Requisition was sent for recording the dying declaration of Kaluram, Puran Ram, Munsif and Judicial Magistrate, Anupgarh recorded the statement of Kaluram which is Ex. D. 2. The treating Doctor referred Kaluram to Bikaner hospital. Baluram P. W. 10 A. S. I. Thana Sadar Bikaner sent the requisition to the Munsif and Judicial Magistrate for recording the statement of injured Kaluram. By the time the Magistrate reached the hospital Kaluram had become unconscious. He breathed his last at 3p. M. in the hospital. The post mortem of the dead body of Kaluram was the conducted by Dr. B. N. Mathur, P. W. 13. the Doctor prepared the post mortem report Ex. P. 22. The Doctor observed as under:- 1. Wound of Entery:-Lacerated wound 2. 3x2. 3cm oval shaped on back abdomen in mid line on the lumbar vertebra one (L.) region placed above 117. 5cm. above the level of heel. The wound is surrounded by tahoing E. tahord ting abrasions in an are of 37. 0cm x 37 cm. The height of the deceased is 181. cm. 2. Surgically made stitched wound 2. 0 cm long in 2nd inter costal space region on left side (per pleural cavity drainage ). 3. Abrasion 2. 0 cm. x 5cm on Lt. side of chest about 15. 0cm below it. ripple & 11. 5cm. away from mid line c swelling around it. 4. Venesection Rt. incedial walledous region. " The cause of death according to the Doctor was shock and haemorrhage as a result of injuries to vertebra, spinal cord, stomach, diathrapur & pleural cavity caused by firearm. The arm injury was held to be sufficient to cause death in the ordinary course of nature. The inquest report of the dead body and the panchayatnama were prepared by the A. S. I. Baluram. The dead body was then entrusted to the father of the deceased. Sukhdev P. W. 11 S. H. O. , Anupgarh police Station the next day went to village 9nd and inspected the site at the house of the deceased. He recorded the statement of witnesses and prepared necessary memos, during the course of investigation on 12. 7. 1986 i. e. next day of the occurrence vide Ex. p. 2 one empty cartridge was recovered from the site. Omprakash, appellant was arrested on 22. 7. 1986. While The was in custody he furnished information Ex. P. 21 on 25. 7. 1986 for getting recovered the pistol from his house and in pursuance of that information the S. H. O. , recovered one pistol from the Kotha of the appellant vide memo ex. p-8. Upon completion. of necessary investigation charge-sheet against the appellant was filed in court of Munsif and Judicial Magistrate, Anupgarh. The case on committal reached the Additional Sessions Judge, Raisinghnagar, who, on denial of charges by the appellant proceeded with the trial. To substantiate its case prosecution examined 13 witnesses in all. The appellant in his statement u/sec. 313 Cr. P. C. totally denied the allegations levelled against him and stated that the witnesses were against him because of enmity and being related to the deceased. No. defence witness was examined. Feeling aggrieved by his conviction and sentence Omprakash has preferred this appeal in this Court We have heard Shri Doongar Singh, learned counsel for the appellant and Shri Vijay Choudhary, the learned Public Prosecutor. Learned Counsel for the appellant has assailed the findings of the court below on a number of grounds. It has been vehemently argued that the dying declaration of Kaluram clearly indicates that the name of culprit was not known to anybody and on suspicion or out of enmity Omprakash has been falsely implicated. Referring to the statements of the alleged eye-witnesses, the learned counsel for the appellant submitted that their conduct in not informing the police in the, night itself about the name of the culprit clearly indicates that on the next day they thought over the matter and named the appellant. It has seen stressed that all the witnesses who have claimed to have been the incident and identified the culprit are near relatives of the deceased and as such their statement should not be given weight in comparison to the dying declaration of the deceased. The learned counsel for the appellant emphasised that the learned trial Judge has legally erred in connecting the empty recovered. at the site with the pistol alleged to have been recovered at the instance of the appellant, without there being any report of the ballistic expert. Learned Public Prosecutor controverted these arguments and submitted that the possibility of the deceased being unconscious immediately after sustaining firearm injury cannot be ruled out. According to the learned Public Prosecutor the entrance wound was at the back and, therefore, it might not have been possible for the injured to see the assailant and identify him. Referring the statement of P. W. 6dr. Kailash Chandra Sharma, learned Public Prosecutor argued that patient might have became unconscious immediately after sustaining the injuries and as such there could not be any possibility for his giving any statement.
(3.) AT the very out set it may be observed that the prosecution has led two type of evidence; one is in the form of dying declaration of the deceased which did not disclose the name of the assailant. The second set of evidence is of Shanti Devi P. W. 1, Brijlal P. W. 2 and Bhagirath P. W. 12. The pertinent. point to be determined in the case would be as to whether Kaluram was in fit condition to give statement. Another important point requiring decision would be whether the prosecution witnesses claiming to have identified the assailant had really identified him and whether prosecution has succeeded in explaining their unnatural conduct in not bringing to the notice of the S. H. O. in the night that such and such person had committed the crime, The occurrence is said to have taken place at 10 P. M. in the intervening of 10. 7. 1986 and 11. 7. 1986 at the house of Kaluram. The requisition Ex. P 5 bears the time 1 A. M. That shows that the injured has reached Anupgarh hospital prior to that. The dying declaration Ex. p. 6. recorded by the S. H. O. Sukhdev of Police Station Anupgarh bears the time 1. 25 A. M. The Magistrate has recorded the time in Ex. D-2 Dying declaration as 1. 50 A. M. Balu Ram ASI Police Station Than Sadar, Bikaner has sent the requisition to the Munsif and Judicial Magistrate, Bikaner for recording the statement of injured Kaluram. Till that time the injured was conscious as is evident from the endorsement made on Ex. p. 10, requisition at 2. 45 P. M. by Dr. Deepak Mitriceni. In Ex. p,6 2. recorded by S. H. O. Sukhdev contains that when the injured raised a cry the inhabitants of the house awoke but the man firing the gun shot could not be known, Ex. D-2 is the statement recorded by the Munsif Magistrate, Anupgarh, in that also it is clearly mentioned that it could not be known as to who had the shot. It has been further mentioned that there is no suspicion on anybody for firing the shot. This document bears the endorsement of Dr. Kailash Chandra Sharma to the effect that the patient was in fit stage to give statement. In these circumstances we do not feel inclined to agree with the learned Public Prosecutor that immediately after sustaining firearm injury Kaluram became unconscious and version in his dying declaration that the assailant could not be identified nor was there suspicion on anybody should not be believed. We fail to understand as to why the Magistrate, would record a false statement and the S. H. O. would try to hide a person if the injured would have named anyone because till that time there was no question of the police trying to side any one. The second set of evidence is the statements of witnesses to the effect that they had identified Omprakash in the night of the incident itself Shantidevi w/o the injured has stated that she was sleeping on a cot by the side of the cot of the injured and identified Omprakash when be fired the shot. Bhagirath, Brijlal and another Bhagirath, not examined by the prosecution are said to have been sleeping at a distance of 15-20 passage from the cot of the injured. They have stated that on hearing the report of the gun fire, they up and chased the assailant and identified him. Patram happens to be the father of the deceased. He was there in the house when the witnesses referred to above are said to have stated about the incident. Patram was available in the hospital to give statement to the police regarding the incident but, for the reasons best known to the Investigating Officer, instead of making any interrogation from Patram, Gangaram or other persons accompanying the injured he has recorded the statement of the injured himself and treated it as first information report. This has given rise to the argument of the learned counsel for the appellant that till the dying declaration was recorded nobody had known the identity of the assailant and therefore the police had to feel content by whatever was told by the injured. Brijlal has stated that Patram was told about the gun shot injuries sustained but neither he asked as to who was the assailant nor the alleged eye witnesses told him about it. this version is not palatable. A father having come to know about the death of his must have asked as to who was the assailant. It is also important to note that Brijlal and Bhagirath have stated that they did not go to the hospital along with injured. It is clear from the statement of Shanti Devi and Birbalram that Brijlal and Bhagirath had accompanied the injured to the hospital. Attention of Brijlal was drawn to his police statement Ex. D. 1 where he has stated about is accompanying to the hospital though the witness disowned that statement but we do not place reliance upon his statement that he had not gone to the hospital in view of the version given by the other witnesses in that regard. In this connection the entries in panchayatnama of the dead body Ex. p. also carried importance. Patran other of the deceased was a signatory to the document. If certain persons had identified the accused, Patram would have said so before the police at least when the panchayatnama was being prepared. The argument of the learned Public Prosecutor that Omprakash was not conscious stands falsified by the prosecution witness P. W. 3 Palaram who has stated that in his presence Kaluram has stated that Omprakash had fired the shot at him. If it was SC then Patram must have known the name of the assailant and there was no reason for him not to tell S. H. O Sukhdev when reached the hospital that Omprakash was the assail and. If Patram was knowing the name of the assailant then in the natural course of events Kaluram also must have known to him while being taken to hospital and he must not have spared the culprit. In view of the statement and the dying declaration and infirmity in the prosecution case i. e. Patram and the persons accompanying the injured to the hospital not informing, the police in the night the identify of the assailant, we do not place any reliance on the statement of the alleged eye witnesses and agree with the learned counsel for the appellant that their version was an after thought. The empty said to have been recovered at the site has been wrongly connected with the pistol said to have been recovered at the instance of the appellant because there is no opinion of the ballastic expert in that regard. The accused was arrested on 22. 7. 1986 on he is said to have furnished information on 25. 7. 1986 and the pistol was recovered on 267. 1986, P. W. 8 Maniram Motbir to the recovery memo is the collateral of the deceased as such the circumstance of recovery has not rightly been pressed into service by the learned trial Judge to convict the appellant. ;