- (1.) THIS criminal appeal is directed against the impugned judgment dated 15.05.2004 passed by the learned Additional Sessions Judge (Fast Track) No.1, Jhalawar in Sessions Case No.20/2004, whereby he has convicted and sentenced the accused-appellant as under:- Under Section 302 IPC Imprisonment for life and a fine of Rs.1,000/-, in default of payment of fine to further undergo one year's rigorous imprisonment Under Section 3/25 of the Arms Act One year's rigorous imprisonment and a fine of Rs.500/-, in default of payment of fine to further undergo six months' rigorous imprisonment.
(2.) BRIEFLY stated, the prosecution case is that Informant Harlal along with his brothers Radha Kishan and Nemi Chand lodged a report at about 08.15 a.m. On 27.09.1996, at Police Station Khanpur, District Jhalawar. It is stated in the report that at about 07.30 a.m. in the morning, Informant and his brother Radha Kishan were sitting outside their house. It is further stated in the report that while Nemi Chand, brother of Informant, was taking out the buffaloes, his brother Radha Kishan followed him. It is alleged in the report that accused Mahaveer S/o Ghasi Singh and Shyama @ Shyam Singh S/o Tejpal Singh came there armed with country made gun and Gandasi. On having seen the accused persons, the Informant understood that they are going to give beating to his brother. Therefore, the complainant came towards them and when he crossed the 'Bada' of one Ramcharan, he saw that the co-accused Shyam Singh opened fire on Radha Kishan with an intention to murder. Thereafter, the accused-appellant Mahaveer Singh opened fire with gun on Radha Kishan, which resulted in injuries on his forehead, chest and both the arms. Nemi Chand also sustained pellet injuries inflicted by a gun. Subsequently, accused Mahaveer and Shyam Singh ran away. It is also stated in the report that at the place of incident other persons, namely Prabhu Lal and Lalchand were also present. Radha Kishan is said to have become unconscious because of injuries sustained by him and he was unable to speak. On the aforesaid report, the police registered a First Information Report (348/1996) for the offence under Section 307/34 IPC. During course of investigation injured Radha Kishan succumbed to his injuries and died, as a result of which offence under Section 302 IPC was added. On conclusion of investigation, the police filed a challan in the Court of Judicial Magistrate, Khanpur on 17.01.1997 for the offence under Section 302, 307/34 IPC and for the offence under Section 3/25 and 27 of the Arms Act. The learned Magistrate had thereafter committed the case for trial to the Court of Sessions Judge, Jhalawar. Ultimately, the case was tried by the Additional District & Sessions Judge (Fast Track) No.1, Jhalawar. The co-accused Shyam Singh remained absconded and, therefore, trial of the accused-appellant alone was conducted at that time. The learned trial Court framed charges against accused Mahaveer for the offences under Section 302, in the alternate 302/34, 307, in the alternate 307/34 IPC and for the offence under Section 3/25 of the Indian Arms Act. The accused denied the charges and claimed for trial. The prosecution had produced, in support of its case, 22 witnesses and also documents, 29 in number, which were collected during the course of investigation and the same were duly exhibited. After the evidence of prosecution was over, the statement of accused was recorded under Section 313 Cr.P.C., wherein he stated that prosecution evidence is false. He had clarified that, in fact, murder was not committed by him but by the complainant and his relatives. However, no evidence was produced on behalf of the defence. On conclusion of the trial, the learned Court below had convicted and sentenced the accused-appellant as aforesaid. It may be noted here that subsequently co-accused Shyama @ Shyam Singh was arrested and trial against him was separately conducted. On conclusion of the same, a judgment came to be passed by the learned trial Court on 20.11.2004, whereby he was acquitted of the charges, inter alia, under Section 302 read with Section 34 IPC. Learned counsel for the accused-appellant has vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt. He has also submitted that there is no evidence on record so as to connect the accused-appellant with commission of the crime so much so that the allegation in respect of using firearm by the accused-appellant is not fully established by the prosecution evidence. Further he has submitted that a perusal of the Site Plan and other evidence on record would reveal that it does not support the prosecution case that the accused-appellant had used a firearm resulting in the death of deceased Radha Kishan. The same is neither, said to be proved, by the ocular evidence nor by the medical evidence on record. Therefore, the learned counsel for the accused-appellant has submitted that the prosecution case is wholly doubtful and the same deserves to be rejected outrightly. Consequently, the accused-appellant be acquitted of all the charges levelled against him.
(3.) ON the other hand, the learned Public Prosecutor has supported the impugned judgment dated 15.05.2004 and submitted that the prosecution has proved its case beyond doubt so as to establish that it was the accused alone, who had committed the instant crime. She has further submitted that the report was promptly lodged within a time of less then one hour and the Police investigation commenced immediately thereafter. Further she has submitted that the statements of eye-witness Harlal (PW5) and injured witness Nemi Chand (PW6) clearly prove the prosecution case and there is no room of doubt in the statements made by them. She has also submitted that the prosecution case is fully corroborated by the medical evidence on record as Medico Legal Report (Ex.P14) as well as Post-mortem Report (Ex.P23) does establish that the deceased Radha Kishan died on account of gunshot injury. The weapon of offence, it is further stated, has been recovered in the instant case on the information given by the accused and as such, he has been rightly convicted for the offence under Section 3/25 of the Arms Act. We have given our thoughtful consideration to the submissions made by the Counsels for the rival parties and have carefully perused the evidence on record available before us. The prosecution case had been, from the very inception, that the accused Mahaveer accompanied by Shyama @ Shyam Singh had fired on the deceased and the same was in the presence of complainant Harlal as also injured Nemi Chand. In this light, we have carefully considered the statements of Harlal (PW5) and Nemi Chand (PW6) and are of the opinion that there is no reason to disbelieve them. More over, a perusal of M.L.R.(Ex.P14) and Post-mortem Report (Ex.P23) also reveals that the deceased Radha Kishan sustained firearm injuries, as a result of which he died. As per port-mortem report, fatal injury was the one inflicted on the head of the deceased by a firearm. Similarly, injuries sustained by deceased on his chest by firearm were also found to be grievous in nature. This takes us to another argument raised by the learned counsel for the accused-appellant that injuries sustained by the deceased on the arms do not corroborate, as the direction mentioned therein is inconsistent with the prosecution case that firearm was used from a 'Chabutara' and as such the same should have been downwards. But in our considered opinion statements of eye-witnesses have been corroborated by the medical evidence on record with regard to the fatal injury sustained by deceased Radha Kishan and any discrepancy in respect to the injury on the arms, sustained by the deceased, would not throw out the prosecution case in its entirety. So far as conviction of accused-appellant in respect of offence under Section 3/25 of the Arms Act is concerned, suffice it to say that the learned counsel failed to point out any thing so as to show that the prosecution failed to prove its case under the said offence. Consequently, conviction awarded to the accused-appellant in respect of offence under section 3/25 of the Arms Act also deserves to be sustained. ;