SHARMA, J. - (1.) AS many as 19 accused persons including the appellants Jagdish Prasad and Banwari son of Ram Karan were indicted before the learned Additional Sessions Judge No. 3 Kota for the murder of Banwari son of Dev lal Gujar in Sessions Case No. 56 of 1993. Accused appellants Jagdish Prasad and Banwari son of Ram Karan were found guilty, convicted and sentenced as under- Jagdish Prasad u/sec. 302 IPC Imprisonment for life and fine of Rs. 1000/- u/s. 5/27 Indian Arms Act One Year RI and fine of Rs. 100/- (in default to further undergo 3 months SI) Banwari S/o Ram Karan u/s. 307 IPC Four years RI and fine of Rs. 100/- (in default to further undergo 3 months SI) Being aggrieved by the judgment dated August 8, 1996 accused jagdish Prasad and Banwari son of Ram Karan have preferred instant Criminal Appeal No. 476/96. Learned trial judge vide the said judgment acquitted co-accused Ram Swaroop, Laxmi Narain, Roop Narain, Om Prakash, Radhey Shyam, Badri Lal, Chandra Prakash, Ramesh, Jawahar lal, Nandji, Satya Narayan, Shrilal, Klanhaiya Lal, Subhash, Bhanwarji, Murli, Ram Karan and Uttam. The State of Rajasthan assailed the judgment of acquittal by filling criminal leave to appeal. This Court vide order dated September 16, 1997 granted leave only to the extent of findings in respect of co-accused Ram Swaroop, Banwari Lal and Jagdish and directed to consolidate both the appeals.
(2.) THE prosecution case as made out at the trial is as under- Parcha Bayan (Ex. P. 1) of Shankar Lal (PW. 2) was recorded by ASI Jagdish Lal (PW. 22) on February 23, 1993 at 11. 40 a. m. in the M. B. S. Hospital Kota, wherein Shankar Lal stated that on February 22, in the evening when he and Ramesh Gujar had gone to his field, accused Jagdish met them having axe in his hand. He abused them and went back to the village. After some time he alongwith Banwari son of Ram Karan, Subhash, Uttam and Roop Narain came there around with sticks and Gandasas. Jagdish was armed with Double Barrel Gun. Seeing all of them, Shankar Lal and Ramesh were frightened and came back to their village and narrated the incident to their kith and kins. He could not lodge the report in the night. Shanker Lal in his Parcha Bayan further averred that on February 23, 1993 around 7 a. m. when he came out of his house in order to go to the Police Station, Jagdish threw him a challenge to settle the score. In the meanwhile as many as 18 persons named in Parcha Bayan gathered from the neighbourhood. Jagdish was armed with Double Barrel Gun whereas Ram Swaroop was having Single Barrel Gun, others were armed with Dhariyas and Gandasis. All of them gave threatening to Kill Shankar Lal and his colleagues. Hearing Shankar Lal's hue and cry, Banwari son of Deva (since deceased) Ramesh and Chanda Lal came rushing. Jagdish then said, `wait let me terminate you'. He aimed DBBL Gun and shot at Banwari s/o Deva. THE fire hit at his chest and Banwari fell down. THEreafter Banwari son of Ram Karan snatched the Gun from Jagdish and opened fire at Ramesh which hit at his stomach. Ram Swaroop also opened fire with his gun, that hit Ramesh and the shoe of Chanda. Other persons had pelted stones. This incident had been witnessed by Dev Krishna, Bhanwar lal, Keshri Lal and many other villagers. Banwari son of Deva and Ramesh were taken to Hospital at Kota, where Banwari died and Ramesh was admitted. On the basis of Parcha Bayan of Shanker Lal, Police Station Sultanpur registered FIR No. 17/93 (Ex. P. 20) for the offences under sections 302,307,147,148 and 149 IPC and investigation commenced. State was inspected vide memo Ex. D. 13. Dead-body or Banwari was subjected to post mortem. Report of post mortem is Ex. P. 39. Statements of the witnesses u/sec. 161 Cr. P. C. were recorded and the accused were arrested. On the basis of information supplied by the appellant Jagdish a Double Barrel Gun was recovered vide memo Ex. P. 9. The Injury report of Ramesh is Ex. P. 40. Reports of Forensic Science Laboratory are Ex. P. 80 and Ex. P. 81. On conclusion of the investigation the charge sheet was filed against 19 accused persons including the appellants Jagdish and Banwari. In due course the case cam up for trial before the learned Additional Sessions Judge No. 3 Kota. The trial court framed charges under Sections 148, 302, 302/149, 307/149 IPC and 5/27 of the Indian Arms Act against appellant Jagdish and u/sec. 148,307, 307/149 and 302/149 IPC against Banwari. The accused denied the charges and claimed trial. The prosecution examined as many as 22 witnesses thereafter explanation of the accused u/sec. 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 judge convicted the accused Jagdish and Banwari and acquitted other 17 accused persons as indicated hereinabove. Mr. A. K. Gupta, learned counsel for the accused appellants canvassed that when the prosecution evidence was disbelieved as against the 17 co-accused persons, the accused appellants could not have been convicted on the same set of evidence. According to learned counsel the prosecution has not placed true version of the occurrence. It has suppressed the information received at first point of time in consequence of which Parcha Bayan of Shankar Lal was recorded. Banwari sustained two fire arm injuries, one on the chest and other on the shoulder. The said injuries have been caused by the different fire arms because one injury is of bullet and the other is that of pallets. Besides this, the prosecution case is that fire arm was used by Banwari from a short distance but from the medical report the injury sustained by the deceased could not be caused from the short distance. It is further contended that delay in sending FIR to the Magistrate is also fatal. It was anti dated and anti timed. State plan was not prepared properly. Recovery of weapon of offence was not proved. There were material contradictions in the statements of witnesses and their presence at the spot was not natural. Place of occurrence as shown in the site plan could not be proved by the witnesses. There was unreasonable delay in recording the statements of witnesses by the police, though they were available in the village. The prosecution failed to establish the motive behind the murder of Banwari. The witnesses did not say from where the fire was shot. Presence of independent witnesses Bhanwar Lal, Deepa Gujar and Ganesh Kumar was shown but they were not produced. Statement of injured eye witness Ramesh was recorded on February 26, 1993 and explanation for three days delay was not offered. It is further urged by learned counsel that in the statements recorded u/sec. 313 Cr. P. C. circumstances as to from where the fire opened and at which place it hit the deceased, were not put. Learned counsel placed reliance on various judicial pronouncement, that shall be dealt with at appropriate juncture. Per contra Mr. S. C. Purohit, learned Public Prosecutor and Mr. V. R. Bajwa, learned counsel for the complainant supported the conviction and urged that the eye witnesses are natural and truthful witnesses. Eye witness Ramesh sustained injury at the time of the incident and his presence cannot be doubted. The infirmities shown by the learned counsel for the accused are not material. All the circumstances were put to the accused while recording their statements u/sec. 313 Cr. P. C. Recovery of DBBL Gun at the instance of accused Jagdish stood proved. Inconsistency between the ocular and medical evidence is not material. FIR was lodged promptly. In view of the clear evidence that Banwari died as a result of gunshot injuries, all technical arguments raised on behalf of the accused loose significance. Various authorities that are relied upon shall be discussed as and when required.
(3.) AFTER having been taken through the evidence on record we have come to the conclusion that the superstructure of the prosecution case is basis on central evidence consisting of seven eye witnesses namely Shanker Lal (PW. 2), Dev Kishan (PW. 3), Ramesh Chand (PW. 4) Bhanwar Lal (PW. 5) Chanda Lal (PW. 6) Kastoora (PW. 7) and Ramesh Gujar (PW. 9 ). This evidence is sought to be corroborated by Medical jurist Dr. R. K. Sharma (PW. 18) and investigating officer Guru Bachan Singh (PW. 20) who recovered DBBL Gun at the instance of accused Jagdish. A look at the Post Mortem report (Ex. P. 39) demonstrates that cause of death of deceased Banwari was shock as a result of the anti mortem fire arm injury to Heart. According to Dr. R. K. Sharma (PW. 18) following antimortem injuries were found on the dead body of Banwari- (i) Fire arm would (Would of Entry) 1/2"x1/2"x Shoulder Rt. deep Margin Inverted going downwards and posteriorly. Shoulder Anteriorly Pallet is found lodged in subcutaneous tissue posterior wall of shoulder. Pallet recovered and sealed and handed over to police. , +, + (ii) Fire Arm would (would of Entry) Margin inverted 1/2"x1/2"x CD, on chest Antery at the sternum Going downwards and posteriorly perforating the sternum, going downwards and posteriorly perforating the Right Ventrical of Heart going down wards and posteriorly. Pallet found lodged in subcutaneous tissue posteriorly wall of the chest, Pallet recovered and and sealed, handed over to police. Ex. P. 40 is the injury report of Ramesh Chand son of Suraj Mal (PW. 4 ). According to Dr. R. K. Sharma (pw. 18) following two injuries were found on the person of Ramesh Chand- (i) Fire arm would (Would of Entry) 1/2"x1/2"x threw and threw on Rt. Hipocondrium region (ii) Gun Shot would (wound of Exit) 1/4"x1/2"x threw and threw on Back Rt. side middle. Both the injuries were dangerous to life. ;