MATHUR, J. - (1.) THIS appeal is directed against the judgment dated 4. 11. 1997 passed by the Additional Sessions Judge, Barmer, convicting appellant for offence under Section 302 I. P. C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 100/-; in default of payment to further undergo 15 days simple imprisonment. The appellant has also been convicted for offences under Section 7/25 Arms Act and sentenced to under go 1 year rigorous imprisonment and to pay a fine of Rs. 100/-; in default of payment to further undergo 15 days rigorous imprisonment. Both the sentence have been ordered to run concurrently.
(2.) BRIEFLY stated the prosecution case is that on 2. 6. 94 at about 11:20 A. M. , P. W. 1 Ladu Ram gave a written report Ex. P1 to P. W. 18 Babulal S. H. O. , Police Station, Barmer stating inter alia that at about 11:00 A. M. , he had gone to see his brother Harlal on the roadways Bus Stand, where he was on duty in the Enquiry Cabin. At that time appellant Lal Singh along with Jai Singh, Veer Singh and Bal Singh were found moving on the Bus Stand. Lal Singh was carrying a weapon like pistol. Har Lal was working in the Cabin. In his front P. W. 2 Mota Ram was standing. Appellant Lal Singh entered in the Cabin and from the rear side, fired the pistol, which hit in the back of Harlal and passed through. Jai Singh, Veer Singh and Bal Singh exhorted appellant Lal Singh to re-fire as the enemy was not killed. They also assured him that nothing wrong will happen to them as Advocate Roop Singh will take care of them. P. W. 3 Narayan Ram approaching to Harlal from the nearby Cabin also witnessed the incident. Lal Singh after firing the shot took heels with Jai Singh, Veer Singh and Bal Singh. He ran towards the house of Roop Singh and entered therein. Other accused persons Jai Singh, Veer Singh and Bal Singh taking advantage of the crowd disappeared. He along with Mota Ram and Narayan along with number of other persons which included Hema Ram, Achla Ram etc. chased Lal Singh and reached at the house of Roop Singh. The police also arrived there. Lal Singh was apprehended in the house of Roop Singh along with pistol. He also stated that all the accused persons hatched a conspiracy to kill Harlal. They wanted to settle score with Harlal for the murder of one Kan Singh. He also stated that Bhanwara Ram and some other persons took Harlal to the Hospital. On this information police registered a case for offence under Section 307, 120 B I. P. C. and 7/25 Arms Act at about 11:40 A. M. at the Police Station, Barmer and proceeded with investigation. P. W. 20 Narayan Ram a Reserve Sub Inspector, Police posted at Police Line, Barmer, who was in the PWD Office hearing the gun shot fire, chased appellant and entered in the house of Advocate Roop Singh. He apprehended him on the terrace of the house. Thereafter, he took the appellant Lal Singh to the office of the Superintendent of Police. An information was given to the Circle Inspector, Kotwali Barmer on telephone. The appellant was brought to the Police Station at about 12:30 P. M. A formal arrest memo was prepared at the Police Station. On search of the person, a pistol and ten cartridges were recovered from the Bag. The Investigating Officer reached on the spot at about 12:35 P. M. At about 1:00 P. M. Harlal succumbed to the injuries. The police added offence under Section 302 I. P. C. The inquest report was prepared and the dead body was sent for post-mortem. After usual investigation, police laid charge-sheet against the appellant Lal Singh and there others for offence under Section 302 I. P. C. and 7/25 Arms Act. The other three accused persons were discharged by order of the trial court dated 9. 2. 95. The appellant Lal Singh alone was put to trial on the charge of murder of Harlal. The appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined 20 witnesses and produced number of documents. In statement under Section 313 of the Code of Criminal Procedure the appellant denied the correctness of the prosecution evidence appearing against him. The learned trial Judge after considering the entire evidence on record accepted the prosecution case and held that appellant guilty of murder of Harlal. Accordingly, he convicted and sentenced him in the manner noticed above. Mr. Doonggar Singh learned counsel for the appellant has argued with his usual fairness and clarity but vehemence pointing following outstanding features of the case, which according to him throw sufficient doubt on the entire prosecution case. (i) That the F. I. R. Ex. P1 is a fabricated document, which has been brought into existence long after the occurrence utilising the time for introducing the names of the eye witnesses. (ii) That the F. I. R. was sent to the learned Magistrate after a considerable delay and at the odd time i. e. 11:15 P. M. during night. (iii) In the Arrival and Departure Register of the Buses Ex. P. 25a there exists entries in the hand writing of the deceased upto 12:30 noon, which shows that he was alive upto 12:30, falsifying the prosecution case of Harlal being shot at 11:00 A. M. (iv) The recovery of two empty cartridges from the site, makes the statement of the alleged eye witnesses P. W. 1 Ladu Ram, P. W. 2 Mota Ram, P. W. 3 Narayan Ram, P. W. 4 Hema Ram, P. W. 15 Bhanwara Ram false and fabricated as according to them, there was only one pistol fire. (v) P. W. 20 Narayan Ram has been falsely introduced at the last stage of the trial. Police did not record his statement during investigation, as such his name was not shown in the calendar of witnesses. (vi) Number of witnesses like Nimba Ram, who alleged to have apprehended appellant have been deliberately with held by the prosecution. (vii) The witnesses falsely implicated Jai Singh, Veer Singh and Bir Singh. Before dealing with the contentions raised by the learned counsel for the appellant, we may scan the prosecution evidence produced by the prosecution in support of the case. The defence has not disputed homicidal death of Harlal. P. W. 17 Dr. M. M. Purohit has stated that he was one of the members of the Medical Board, which conducted the post-mortem of the dead body of deceased Harlal. In his opinion, the cause of death was injuries on spleen, small intestine, omentum, penotonium leading to internal haemorrhage and shock due to bullet injury. The metalic pieces were also removed from the body. All the injuries were ante mortem in nature. He has proved the post-mortem report Ex. P. 47.
(3.) THE prosecution has examined P. W. 1 Ladu Ram, P. W. 2 Mota Ram, P. W. 3 Narayna Ram, P. W. 4 Hema Ram and P. W. 15 Bhanwara Ram as eye witnesses. P. W. 1 Ladu Ram is the brother of deceased Harlal. He has stated that Harlal was an employee of the Roadways posted at Barmer. On 2. 06. 1994 at about 11:00 A. M. Harlal was sitting in the Enquiry Cabin and doing his work at the Bus Stand of the Roadways. Mota Ram was standing in his front. He found Lal Singh, Jai Singh, Veer Singh and Bal Singh moving around the Cabin at the Bus Stand. Lal Singh was carrying a pistol in his hand. Lal Singh fired gun shot from the rear side of the Cabin hitting on the back of Harlal. THE bullet passed through the body of Harlal and hit the iron sheet of the cabin. Jai Singh, Veer Singh and Bal Singh exhorted Lal Singh to fire again as the enemy was still alive. THEy also uttered that Advocate Roop Singh will not permit anything to be done wrong with them. From the adjoining Cabin, Narayan Ram also arrived on the spot. Achla Ram and Hema Ram also arrived. After gun shot fire, Lal Singh ran away, he was being chased by him, Narayan Ram, Mota Ram, Hema Ram, Achla Ram and many others. Appellant Lal Singh entered in the house of Advocate Roop Singh. THEy surrounded the house of Roop Singh. Lal Singh was caught by the police. He returned to Bus Stand and took Harlal to the Hospital. He was unconscious. After some time, police also arrived there. He submitted a written report to the Circle Inspector. THErefore, the police visited the site. An empty cartridge was also recovered from the spot. After inspection, they returned to the hospital. Harlal succumbed to the injuries. He also stated that Lal Singh fired the gun at Harlal because of the enmity. THEre is lengthy cross-examination, but nothing substantial has been elicited to discredit the testimony of this witness. THE testimony of this witness is natural and trustworthy. P. W. 2 Mota Ram was also Booking Clerk on the Roadways Bus Stand at the same time. He has stated that he reported for duty at 10:45 A. M. He found Ladu Ram the brother of the deceased Harlal standing. He was talking with Ladu Ram. At that time, Lal Singh, Veer Singh, Jai Singh and Bal Singh arrived. He has given the narration of the incident on the line as given by P. W. 1 Ladu Ram. In the cross-examination, he admitted that he chased Lal Singh instead of taking care of Harlal. There is a lengthy cross- examination, but nothing substantial has been elicited to discredit the testimony of this witness. P. W. 3 Narayan Ram was also a Booking Clerk on the Roadways Bus Stand at Barmer. He has stated that on 2. 6. 94, he was on duty upto 6:00 to 11:00 A. M. At about 11:00 A. M. when he closed the window and moved towards the Enquiry Booth, where Harlal was on duty, Lal Singh from the rear side of the Cabin fired the gun shot from the pistol and ran towards the hospital. He has also stated that at that time Ladu Ram, Mota Ram and some others were also standing. He also stated that he was not in a position to give the names of the persons, who were with Lal Singh. He has stated that he was at a distance of 10-15 it. About 40-50 persons chased Lal Singh running towards the hospital side. He entered in the house of Roop Singh and claimed on the terrace. At that time, police arrived and he was apprehended. He along with Ladu Ram and others took Harlal to the hospital. Harlal was unconscious. As a result of the injuries Harlal died in the hospital. He admitted that his statement was recorded after three days of the incident i. e. on 6. 6. 94. He also admitted that during this period, he was available in Barmer. Nothing has been elicited to discredit the testimony of this witness. ;