SHARMA, J. - (1.) THE appellant Hoshiyar Singh was inducted before the learned Additional Sessions Judge, Deeg, district Bharatpur, for having committed murder of Ramvir. Learned trial Judge vide judgment dated April 19, 1995, convicted and sentenced him as under:- Under Section 302 IPC: to undergo rigorous imprisonment for life and a fine of Rs. 500/ -. In default to further suffer one year rigorous imprisonment. Under Sec. 3/25 of the Arms Act: two years rigorous imprisonment. All the sentences were directed to run concurrently. Against this judgment of conviction, that the appellant has resorted to initiate present action of filing the appeal.
(2.) BRIEF resume of the prosecution is that P. W. 4 Sodan Singh, lodged a written report Ex. P. 6 with the Police Station, Deeg, on July 4, 1992, stating therein that around 5. 00 a. m. on July 4, 1992, he had seen the people rushing towards his field. He also rushed to his field, where he found the dead body of his brother Ramvir lying on a cot. The blood was oozing from the left ear and he saw his sons Jadvir and Prahlad weeping. On being enquired, Jadvir told him that he and his uncle Ramvir were sleeping together on a cot. He suddenly woke-up after hearing the sound of fire. Hoshiyar Singh having Katta (Indian made gun) in his hand, was standing by the side of the cot alongwith three unknown persons. Police Station, Deeg, registered a case u/sec. 302 read with Sec. 34 IPC and investigation commenced. Statement of witnesses u/sec. 161 Cr. P. C. were recorded. Autopsy on the dead body of Ramvir was conducted. Appellant was arrested. Katta 12 bore was recovered at his instance. It was examined by armorer and on conclusion of the investigation, charge sheet came to be filed against the appellant. In due course the case came up for trial before the learned Additional Sessions Judge Deeg. Charges u/sec. 302 IPC and 3/25 and 3/27 of the Arms Act were framed and read over to the appellant. The appellant denied the charges and claimed trial. The prosecution examined as many as 14 witnesses in support of its case and exhibited as many as 16 documents. In his statement under Sec. 313 Cr. P. C. the appellant pleaded innocence and deposed that he was falsely implicated by the complainant party. He further stated that Babu Lal and Others involved him in an abduction case in which the police submitted final report. During confinement, his mother instituted a complaint against the witnesses, who deposed falsely against him and because of this enmity, he was involved in another case of murder. On hearing the final submissions, the learned Trial Judge convicted and sentenced the accused appellant as indicated here-in-above. Mr. Biri Singh, learned counsel for the appellant canvassed that there is no eye witness of the incident and Jadvir P. W. 1 woke-up after hearing the sound of fire. Thus the prosecution has failed to establish beyond reasonable doubt that it was the appellant who used the fire-arm and caused injury on the person of the deceased. Learned counsel further contended that no blood was found on the clothes of P. W. 1, who was allegedly sleeping at the time of incident by the side of the deceased on the cot. It is futher urged by learned counsel that G. P. Gupta, P. W. 13 in his deposition categorically stated that he had sent pallets/bullets found in the body of the deceased to the Investigating Officer but the Investigating Officer did not think it proper to get the bullets/pallets examined by Ballistic Experts. Thus, there is no evidence to connect the Katta, alleged to have been recovered at the instance of the appellant with the pallets/bullets found in the body of the deceased. Learned Counsel further canvassed that the injuries sustained by the deceased demonstrates that the same could not be caused by one fire thus the prosecution story has become doubtful and the appellant could not have been convicted for the offence of murder of Ramvir. Learned counsel placed reliance on Tahsildar Singh vs. State (1), Sukhwant Singh vs. State of Punjab (2) and Datar Singh vs. State of Punjab Per contra, Mr. Rajendra Yadav, learned Public Prosecutor supported the finding arrived at by the learned trial Judge and contended that Jadvir P. W. 1 is a truthful witness and his testimony deserves to be accepted. It is further contended by learned Public Prosecutor that report of Armorer, establishes that the Katta recovered at the instance of appellant was serviceable fire-arm and even if the pallets/bullets were not sent to the ballistic experts, the appellant is not entitled to derive any advantage from it. The prosecution case was established beyond reasonable doubt as the appellant was rightly convicted. With the assistance of the learned counsel for the parties, we have closely scanned the material on record. Jadvir, P. W. 1 is the main witness of the prosecution and he categorically stated that he was sleeping on a cot alongwith deceased Ramvir. He suddenly woke-up hearing the sound of fire. He found Hoshiyar standing by his cot armed with Katta. He had seen smoke coming out from the barrel of Katta. He had seen smoke coming out from the barrel of Katta. Three persons were also standing by the side of his cot. When he made hue and cry, Hoshiyar scolded him and asked him to keep mum. Thereafter all the four fled. The age of jadvir at the time of examination before the trial court was eleven years.
(3.) PRAHLAD, P. W. 2, elder brother of P. W. 1, deposed that he had seen Hoshiyar and three other persons running from the field. At that time, Hoshiyar Singh was having Katta in his hand. When he attempted to follow them, Hoshiyar threatened him. In his cross-examination, he stated that he had only seen the back of Hoshiyar and he did not recognize Hoshiyar at his first site. Sheodan P. W. 4, stated that he instituted written report with the police station on the basis of information received from his son. Bhonhra P. W. 6 is the motbir of the inquest report, and recovery memos of clothes of the deceased, blood stained "goodari', which was lying on the cot at the time of incident and of Katta. Raghunath P. W. 7 is also motbir of inquest report. In his deposition, he stated that he had heard sound of fire. Har Kishan P. W. 8 is also a motbir of recovery memo of Katta. Member Singh P. W. 9 is a Constable, who handed over four sealed packets to F. S. L. Harish Chandra, P. W. 10 is an Armorer. He deposed that Katta was a serviceable fire arm. Babu Lal P. W. 11 in his deposition stated that relations of Hoshiyar and Ramvir were inimical. Dr. G. P. Gupta, P. W. 13, conducted Post-mortem on the body of deceased and according to him deceased Ramvir sustained following ante-mortem- injuries:- 1. Lacerated wound with margins inverted 1. 4. x1. 2 cm. oval, over 1t. ear blackening and tatooing around wound in a area of 4. 5x4 cm was present. 2. Lacerated wound 2. 0 x 1. 5 cm. with margins everted on right side neck 3 cm below posterior hair line blood was oozing from wound a probe could be passed from injury no. 1 to injury no. 2 across. The front of the verticular of the neck region. 3. Lacerated wound 2. 5. x 1. 2 cm rt. shoulder superior surface medial side near neck margins inverted. 4. Abrasions 2 in number 0. 5x0. 5 cm x 1 cm on rt. side back 3 cm inside and above rt. auxiliary parts. In his cross-examination Dr. G. P. Gupta stated that he was unable to say that injury no. 4 was caused by fire-arm or the injury No. 4 was the exit wound of injury No. 3. He further stated that he found pallets/bullets in the body of the deceased but he did not count them. He sealed the pallets in a bottle and forwarded it alongwith post-mortem-report to S. H. O. Anand Prakash, P. W. 14 conducted investigation of the case. In his cross-examination he admitted that he did not send Katta for examination to the ballistic expert but it was examined by Armorer. He also did not send the clothes of the deceased and the pallets or pieces of bullets for ballistic opinion as before he formed his opinion, he was transferred, therefore, he could not say as to whether any ballistic opinion was sought or not. He further deposed that only expert could say as to whether the injuries sustained by the deceased were the result of single shot or more shots. ;