B.R.ARORA, J. - (1.) - This appeal has been directed against the judgment dated 30.09.1977, passed by Additional Sessions Judge, Ganganagar by which the learned Additional Sessions Judge convicted the accused Hakamsingh under section 302 I.P.C. and under Section 27 of the Indian Arms Act and under Section 302 I.P.C. awarded imprisonment for life and a fine of Rs. 500/-and in default of payment of fine to further undergo six months' rigorous imprisonment. Under section' 27 of the Indian Arms Act accused Hakamsingh was sentenced to undergo two years' rigorous imprisonment and a fine of Rs. 200/- and in default of payment of fine to undergo 3 month's rigorous imprisonment. Both the sentences were to run concurrently. The learned Additional Sessions Judge convicted Chilasingh and Balkar Singh under section 302 read with section 34 I.P.C. and sentenced each of them to undergo imprisonment for life and to pay a fine of Rs. 200/- and in default of payment of fine to further under-go three months' rigorous imprisonment. The learned Additional Sessions Judge, however, acquitted Chilasingh for the offence under section 27 of the Indian-Arms Act.
(2.) THE incident which resulted in the prosecution of the present appellants along with Sarjeetsingh took place in the field of Mangalsingh in Rohi of village 9-BB on 24th of December, 1974 at 1 p.m. THE first information of the incident was lodged at Police Station, Padampur, on 24.12.1974 at 3 p.m. by P.W.6 Shivsingh, who was accompanied by Gurnamsingh, and Bansiram Sarpanch. It was mentioned in the first information report by P.W. 6 Shivsingh that at about 1.45 P.M. Mahendrasingh son of Tarasingh resident of 9 B.R. came to his house and informed him that a dead body is lying in the field of Mangalsingh and he has heard the noise of fires while he was in his field. On this information P.W. 6 Shivsingh went to the field of Gurnamsingh Panch and narrated the story to him. Upon which, Gurnamsingh also informed him that he had also heard the noise of fires at 1 P.M. from the side of the field of Mangalsingh and he had also seen one red colour jeep standing by the square of Mangalsingh. THEreafter Gurnamsingh and Shivsingh both went to the house of Bansiram Sarpanch of Ratewala and took him with them and lodged the FIR. Later on it was found that the dead body was that of Babasingh and the Police after necessary investigation presented the challan against the present three appellants as well as against Sarjeetsingh. THE case was tried by the Additional Sessions Judge, Ganganagar. THE prosecution in support of its case examined 18 witnesses while no witness was examined in defence. THEre is central evidence consisting of 2 eye witnesses, namely, P.W. 10 Puran Singh and P.W. 17 Chandram. This evidence of eye witnesses is sought to be corroborated by the evidence of P.W. 1 Jeetsingh, P.W. 5 Bansiram, P.W. 6 Shivsingh, P.W. 7 Balkishan and P.W. 12 Roopsingh. THE prosecution has also produced Motbir witness for the recovery of various articles as P.W. 2 Ramrakh, P.W. 3 Gurbejsingh, P.W. 4 Karnailsingh, P.W.8 Pratapsingh, P.W. 13 Shri Hajarilal Munsif and Judicial Magistrate, who conducted the identification of the Kripan of deceased Babasingh. P.W. 14 Dr. J.S. Bakshi conducted the post mortem examination on the dead body of deceased Babasingh. P.W. 9 Budhram was the Head Constable at Police Station, Padampur, who took the moulds from the place of the occurrence. P.W. 16 Umedkhan was the A.S.I. At the relevant time at Police Station, Padampur, who made certain recoveries and took the dead body from Padampur to Shri Ganganagar and after post mortem examination handed it over to the family members of the deceased. This witness has also stated regarding the previous litigation pending between the complainant and the accused P.W. 18 Prahlad Rai was the S.H.O. Incharge of the police station, Padampur, who conducted the investigation. P.W. 1 Mahendrasingh was also the eye witness of the occurrence, but he has not supported the prosecution case during trial. P.W. 15 Jahangirsingh whose jeep was taken by the Police and certain recoveries were made to in his presence has also not supported the prosecution case. Both these witnesses P.W. 1 Mahendra Singh and Jahangir Singh were thus declared hostile. THE learned Additional Sessions Judge after trial acquitted accused Sarjeetsingh for the offence under section 302/34 LP.C. as well as under section 27 of the Indian Arms Act. THE learned Additional Sessions Judge also acquitted Chilasingh for the offence under Section 27 of the Indian Arms Act but convicted all the three accused as mentioned above. Aggrieved with their conviction and sentence the appellants have preferred this appeal. We have heard Mr. M.M. Singhvi, counsel for the appellants and the learned Public Prosecutor. Mr. M.M. Singhvi, learned counsel for the appellants, has challenged the conviction of the present appellants on the ground that the eye witnesses are not reliable witnesses and the learned lower court committed an error in placing reliance over their testimony, their conduct after the incident was most unnatural, their statements under section 161 Cr.P.C. are belated and the witnesses are also interested and inimical . It was also contended by Shri Singhvi that in the site plan the place from where witnesses had seen the occurrence had not been shown which also creates a doubt regarding their presence. It was also contended that the learned lower court though has relied upon the evidence regarding the recovery of the empty, but they were not recovered from the scene of the occurrence, but were recovered at a distance of 60 yds. from the place of the occurrence and near the road. Even the recoveries so made also cannot be taken into consideration because the articles recovered were not properly sealed and there is no evidence on record regarding the fact that the seals of these articles remained intact throughout i.e. from the time of recovery upto the time it reached to the Ballistic Expert for examination. Mr. Singhvi further submitted that the evidence of the eye witnesses also does not find corroboration from the medical evidence and there is no link evidence. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the learned Additional Sessions Judge and according to him the witnesses are reliable witnesses and their presence at the scene of the occurrence is most natural. P.W. 10 Pooransingh was with the deceased at the time when the incident took place and he had seen the incident The evidence of the eye witnesses further have been corroborated from the other evidence as well as from the recoveries. The medical evidence also supports the prosecution case. He, therefore, submitted that the learned Additional Sessions Judge has rightly found these persons guilty. We will now first consider the statements of the eye witnesses i.e. P.W. 10 Pooransingh and P.W. 17 Chandram. P.W. 10 Pooransingh is nephew of deceased Babasingh and according to him he was at a distance of few paces from deceased Babasingh and both were going to Ganganagar on foot with a hope that they will get some conveyance like jeep etc. on the road. He has stated that on the date of the incident he along with Babasingh was working in the field of Babasingh. At about 11 A.M. Jeetsingh came to the field of Babasingh and informed that Hakam Singh, Chila Singh and Surjeet Singh are firing in the air. Jeet Singh also informed them that Madan Singh had gone to Ganganagar and he asked Babasingh and Pooransingh to save themselves as well as Madan Singh from the accused party; upon which, Pooransingh, Babasingh and Jeet Singh came at the Ratewala bus stand. Nandsingh met them at the bus stand and informed them that they should save themselves from Hakamsingh, Chilasingh and Surjeet Singh. There after Jeetsingh remained in the shop at the bus stand while he and Babasingh both started towards Ganganagar. Babasingh left the bus Stand 5-7 minutes earlier than Pooransingh. When they were going on the foot towards Ganganagar, a Jeep came from behind. Pooransingh did not make a sign to stop the jeep but when the jeep reached near Babasingh, then Babasingh made sign to stop the jeep. The jeep stopped near Babasingh and a fire was made from jeep on Babasingh. This fire did not hit Babasingh and Babasingh ran towards the eastern side in the fields. Chilasingh came down from the jeep and followed Babasingh, and caught hold of him after covering a distance of 1 or 1/1/4 bigha. Hakamsingh and Surjeetsingh also came from the jeep. Chilasingh threw Babasingh on the ground and thereafter Hakamsingh made a fire over Babasingh. After firing, Hakamsingh, Chilasingh and Surjeet Singh came near the jeep. From there, Chilasingh again went near Babasingh and took his Kripan. Near the jeep Hakamsingh again fired and thereafter all the three persons in the jeep went towards Ganganagar. He ran towards Ratewala side and in the way a bus was coming and he boarded the bus and went to Ganganagar. After some distance, Jeetsingh also boarded the bus. This witness Pooransingh, for the first time, was examined by the Police on 28th of December, 1974, while the incident took place on 24lh of December, 1974. Upto 28th of December 1974, according to this witness he remained at Ganganagar, was staying in the hotel near the Railway Station. He has also admitted that he used to go in the market also and in this period they also not the Police personnel. He has also admitted that he was knowing that there is a Police Station at Ganganagar, but inspite of this the witness either approached the Police, nor gave any information at the Police Station though he met the Police constable. He also did not narrate the incident to any person during this period except Jeetsingh who was with him. This witness has stated in the cross examination that he along with Jeetsingh after reaching Ganganagar at 1.30 P.M. went to the shop where Madan Singh had come, for selling the cotton crop, but Madan Singh did not meet them. At the shop also, this witness did not inform any person regarding the murder of Babusingh. It is not expected from the person who has seen the incident will not inform the Police or to any other person while at Shri Ganganagar where he remained for complete 3 days and was freely moving hither and thither. If this witness would have seen the occurrence, then, he would have lodged the information at Police Station, Sri Ganganagar or should have narrated the incident to the Police-man who met them in the market at Sri Ganganagar. The explanation given by this witness that he was hiding himself and for the first time narrated the story to their relatives after returning from Ganganagar does not inspire any confidence. Then there is the evidence of P.W. 17 Chandram, who is said to be the eye-witness of the occurrence. He has stated that on the day of the incident he was in the field of his brother-in-law Ramswaroop. At about 1 P.M. his brother-in-law Munshiram and Harneksingh were in the field and at that time they saw a jeep stopping at the main road and thereafter they heard the voice of gun fires. They also saw a person running, who was followed by three persons. These three persons thereafter killed that person and came back near the jeep. After that one person went towards the dead body and took some thing from there. Thereafter the three persons went towards Ganganagar side in that jeep. He identified these three persons in the Court as Surjeetsingh, Chilasingh and Hakamsingh. Now so far as this witness is concerned, he was examined by the Police on the next day. This person is not the resident of village Ratewala and had come to Ratewala to attend the 'Pag' Ceremony on the death of Bindibai his cousin sister. In the earlier statement he has stated that the "Pag" ceremony took place on Sunday, while in the statement before the Court, he has stated that the "Pag" ceremony took place on Monday i.e. a day earlier to the incident. No identification parade of the accused got conducted by the prosecution from this witness prior to the examination in court, though this witness was not knowing these persons prior to that. He had seen the accused persons from some distance. If this person would have been there and would have identified the accused persons, then when the first information was lodged the name of the accused persons or their identification mark should have been mentioned. In his cross examination he has stated that he was not knowing these persons prior to the incident. He has also admitted that no identification parade of these three persons was conducted. He has also admitted in the cross examination that he has narrated this incident to Bansilal Sarpanch in the village. We are, therefore, not inclined to accept the testimony of this witness also. The testimony of Pooransingh P.W. 18 and P.W. 17 Chandram also does not find support from the medical evidence. P.W. 14 Dr. S.S. Bakshi has stated that the injury which the deceased has received can be caused when the victim must have been standing. He has also opined that the distance from which the injury could have been inflicted must be more than 8 to 10 feet. Two injuries has been found on the dead body of deceased Babasingh which are as under: - 1. Gun shot would (Wound of untry) 1/6" x 1/6" x through a point 2" anterior and above the left pinna going through the temporal bone, brain coming out of right temporal region causing an exit would of 31/2" x 3" at a point 2" above the pinna of right ear. 2. Gun shot wound -"x -" through and through on the first phalanx might riddle finger causing crushed fracture of the first phalanx, wound of entry being enterior. According to P.W. 10, the injuries were inflicted by Hakamsingh from very close range and that too when the deceased had fallan on the ground. Even according to the prosecution there was only one fire made by Hakamsingh while the injures, in the present case, appears to be by 2 fires. One is the close range fire which hit on the middle finger as there are blackening and charring on this injury, while according to the injury No. 1 there were no blackening or charring over this injury. Thus the medical evidence does not corroborate the ocular testimony of the eye-witnesses. In this view of the matter, we are of the opinion that these witnesses are not reliable witnesses and they had not seen the occurrence.
(3.) NOW we take up the circumstantial evidence of recoveries of empties. So far as empties are concerned, 2 empties were found near the main road at a distance of 60 yds. from the dead body which are said to be connected with the gun of Hakamsingh. These empties were not recovered at the place of the occurrence or near the dead body and therefore, they are not of any help to the prosecution. Even otherwise also, there is no evidence on record which could show that they were properly sealed and their seals remained intact throughout from the time they were sealed and upto the time they reached to the Ballistic Expert. The prosecution has not tried to lead any evidence on this aspect. The recovery of these 2 empties thus does not connect the appellant with the crime. NOW so far as the third empty is concerned, that is not connected with any of the gun, recovered from the accused. Regarding the recovery of 2 live cartridges, they are also of no help to the prosecution. Looking to all the facts and circumstances of the case, we are, therefore, of the opinion that the prosecution has not been able to prove the case against the appellants beyond reasonable doubt and on the basis of the evidence produced by the prosecution we are not inclined to hold the present accused appellants guilty of the offence. In the result, the appeal filed by the appellants is allowed, the judgment passed by the learned Additional Sessions Judge, Ganganagar, convicting and sentencing the appellant is set aside and the appellants are acquitted of all the charges levelled against them. They are on bail. They need hot surrender and their bail bonds stand discharged.;