SHARMA, J. - (1.) THIS appeal owes its origin in the judgment dated March 7, 1998 of the learned Additional Sessions Judge Khetri (Distt. Jhunjhunu) whereby the accused appellant Jaiveer Singh was convicted under Section 302 of the Indian Penal Code and Section 27 of the Indian Arms Act and sentenced against Section 302 IPC to undergo rigorous life imprisonment with fine of Rs. 200/- (in default to further undergo six months R. I.) and against Section 27 of the Indian Arms Act to undergo three years rigorous imprisonment with fine of Rs. 100/- (in default to further undergo three months R. I. ).
(2.) THE prosecution case is woven like this:- On March 8, 1993 at 10. 05 a. m. informant Jai Singh lodged a written report at Police Station Khetri stating therein that earlier at 7. 00 a. m. on that day the informant and his younger brother Ganga Singh (since deceased) had gone to their field. Ram Chandra Singh @ Nanar Singh also joined them there. In order to operate the tube well Ganga Singh put on the diesel engine. THE informant soon thereafter noticed three persons approaching the tube well. Out of the three persons two were Umed Singh and Jaiveer Singh (appellant) and third was not known to the informant. Those three persons surrounded Ganga Singh near the water reservoir. Jaiveer took out pistol and pointed it towards Ganga Singh. Ummed Singh exhorted Jaiveer to fire at Ganga Singh, thereupon Jaiveer opened fire which hit Ganga Singh on his chest. THE informant and Ram Chandra Singh raised alarm. Har Nath Singh and Hanuman Singh who were working in the nearby field also shouted that Jaiveer had fired at Ganga Singh. THE three intruders ran away. On reaching near the water reservoir the informant found his brother Ganga Singh lying dead. Three years before Jaiveer and his elder brother Dharmpal committed murder of Nar Singh and Hari Singh, who were the brothers of the informant. In that case Jaiveer was released on bail. The Police Station Khetri registered FIR No. 52/93 (Ex. P. 7) for the offences under Sections 302/34 IPC and Section 3/25 Indian Arms Act and investigation commenced. Site was inspected vide memo (Ex. P. 8 ). Dead-body of Ganga Singh was subjected to post mortem. Report of post mortem is (Ex. P. 38 ). The cause of death was shock and internal haemorrhage from lungs and fractures following gun shot. Statements of witnesses were recorded and the appellant was arrested. On the basis of information (Ex. P 42) of the appellant a katta (country made pistol) was recovered vide recovery memo (Ex. P. 27 ). Three other accused persons Rajpal Singh, Ram Kumar Singh and Badan Singh were also arrested. Empties were recovered vide recovery memo Ex. P. 39. A wrist watch was recovered vide memo (Ex. P. 40 ). The Forensic Science Laboratory Report is (Ex. P. 44 ). On conclusion of the investigation the charge sheet was filed against the appellant and three co-accused persons. In due course the case came up for trial before the learned Additional Sessions Judge Khetri. The trial court framed charges under Section 302 IPC and Sections 3/25 and 27 of the Indian Arms Act against the appellant as also against co-accused Raj Pal Singh. As against the other two co-accused Badan Singh and Ram Kumar Singh charge under Section 302 read with Section 120b IPC was framed. All the four accused denied the charges and claimed trial. The prosecution examined as many as 24 witnesses, thereafter explanation of the accused under Section 313 Cr. P. C. was recorded. The accused denied the allegations and claimed innocence. No evidence in defence was led. On hearing the final submissions the learned trial court acquitted co-accused Badan Singh and Ram Kumar Singh from the charge under Section 302 read with Section 120b IPC. Co-accused Raj Pal Singh was also acquitted from the charges under Section 302 IPC and Section 27 of the Indian Arms Act but convicted under Section 3/25 of the Indian Arms Act to undergo the imprisonment already undergone. The appellant Jaiveer Singh however was conviction and sentenced as indicated hereinabove. The learned Additional Sessions Judge based the convicted of the appellant principally on the evidence of Jai Singh (PW. 5), Hanuman Singh (PW. 6) and Ram Chandra Singh @ Nanar Singh (PW. 7 ). The presence of these witnesses on the scene of occurrence has not been doubted and it impelled the learned Additional Sessions Judge to hold these witnesses as eye witnesses of the occurrence. Mr. S. R. Bajwa, learned Senior Advocate appearing for the appellant canvassed that the assault on deceased Ganga Singh appears to have been taken place under the cover of darkness. No one, it seems, was present when the assault took place. The eye witnesses have tried to create their presence falsely. It was a blind crime to which there was no eye witness. The complainant has come out with an overly embellished version. Three of the co- accused against whom the complainant party had levelled specific allegations, have already been acquitted and the version of the complainant party has been found false qua three of the co- accused. Thus it was urged that the trial Judge has erred in relying upon the fractured prosecution version. In respect of testimony of eye witnesses the learned counsel contended that they are interested and wholly unreliable witnesses as their statements suffer from numerous infirmities. The evidence of alleged eye witnesses is in direct conflict of medical testimony and that of ballistic expert. Learned counsel placed reliance on various judicial pronouncement that shall be dealt with at appropriate juncture.
(3.) ON the other hand Mr. S. C. Purohit, learned Public Prosecutor and Mr. M. R. Mitruka learned counsel for the complainant supported the impugned judgment and urged that the eye witnesses are the natural and truthful witnesses. ON placing reliance on various authorities it was contended that in the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence. It was further urged that autopsy was conducted at the spot and in view of clear evidence that Ganga Singh died as a result of gun shot injuries, the post mortem examination loses all its significance. Before dealing with the contentions raised by the learned counsel for the appellant we would like to indicate the nature of the evidence led by the prosecution in support of the case. To begin with there is a central evidence consisting of three eye witnesses Jai Singh (P. W. 5 ). Hanuman Singh (PW. 6) and Ram Chandra Singh @ Nanar Singh (PW. 7) who were allegedly present near the place of occurrence. This evidence is sought to be corroborated by the evidence of Aas Mohammed SHO (PW. 22) who deposed that appellant Jaiveer Singh gave information about recovery of `katta' and the evidence of Mohan Lal ASI (PW. 24), Veer Bhan Singh (PW. 12) and Roop Singh (PW. 15) in respect of recovery of katta. Aas Mohammed SHO (PW 22) also deposed that he recovered empties from the place of occurrence. Let us now examine the reliability of the prosecution witnesses through whom the prosecution has to establish that the case against the appellant has been proved beyond reasonable doubt. As has been stated earlier that the conviction of the appellant is based on the testimony of Jai Singh (PW. 5) Hanuman Singh (PW. 6) and Ram Chandra Singh @ Nanar Singh (PW. 7 ). Coming to the testimony of Jai Singh (PW. 5) it is to be noticed that he is the elder brother of the deceased. He instituted FIR of the occurrence. In his deposition he stated that on March 8, 1993 he and his younger brother Ganga Singh had gone to their tube well. Leaving Ganga Singh with the engine, he proceeded towards his field. Suddenly Jaiveer Singh, Rajpal Singh and Ummed Singh appeared from the side of Kotri (small room), they pushed down Ganga Singh, Umed Singh exhorted Jaiveer to fire at Ganga Singh, thereupon Jaiveer opened fire. He alongwith Nanar Singh, Hanuman Singh and Harnath Singh ran towards the tube well to rescue Ganga Singh and Jaiveer Singh, Umed Singh and Raj Pal Singh fled towards Ilakhar village. He found the dead body of Ganga Singh in a pool of blood near the tube well. In the cross examination this witness stated that at the time of incident he was standing at a distance of fifty yards from the place of occurrence. Jaiveer opened fire thrice from the range of three to four feet. The witness disowned his statement (Ex. D 2) recorded under Section 161 Cr. P. C. according to which he is not an eye witness of the occurrence and was informed by Ram Chandra Singh @ Nanar Singh that his brother Ganga Singh was shot dead by Jaiveer Singh. ;