JAIN, J. - (1.) THIS appeal is directed against the judgment of learned Additional Sessions Judge No. 2, Hanumangarh dated 21. 10. 86 whereby he has convicted the accused appellant u/s. 302 IPC and sentenced him to life imprisonment with a fine of Rs. 2000/- and in default of payment of fine to undergo further six months R. I. The learned Additional Sessions Judge has also convicted the appellant u/s. 27 of the Indian Arms Act and has sentenced him to three years R. I.
(2.) THE prosecution case in brief is that the appellant Banwari is the step brother of Abhimanyu and was cultivating the land of his step sister Roshni. On 11. 6. 84, the appellant had his turn of watering his field. At 6. 55 a. m. his brother Satpal and servant Chhida Singh went to cut out the water. At that time both complainant and the accused came out of their respective Dhanies, situated nearby. It was alleged that the appellant Banwari gave a 'lalkar' to Satpal and shot fire at him with a 12 bore pistol, which hit Satpal. Satpal fell down. Banwari, the appellant ran away. THEreafter, Abhimanyu, Roshni and Chhida Singh went near Satpal and saw that due to fire and injury he was bleeding from the chest and they found him dead. It was also alleged that the land of Roshni which was earlier cultivated by the appellant was later on taken back and the same was given to Totaram Singh on 1/3 rd share which caused grievance to the accused. A report of this incident was lodged by Abhimanyu at P. S. Pilibanga on 11. 6. 84 at 10. 15 a. m. On this, a case u/s. 302 IPC and 27 Arms Act was registered. THE appellant was arrested on 14. 6. 84. After due investigation challan was filed in the court of Munsif and Judicial Magistrate, Suratgarh who committed the case to the court of Additional Sessions Judge for trial. THE learned Additional Sessions Judge framed the charges, to which the accused-appellant pleaded not guilty and claimed trial. In support of its case, the prosecution examined 7 witnesses and filed 23 documents and in defence the appellant examined two witnesses and also filed two documents. THE learned Additional Sessions Judge after due trial found the case well established against the appellant and convicted and sentenced him as stated above. Hence this appeal. Mr. H. S. S. Kharlia, learned counsel for the appellant has submitted that the prosecution has not been able to prove motive and the appellant has been falsely implicated due to enmity. He has also submitted that the possibility of two fires shots is not ruled out as the dimensions of injury no. 4 and 6 are different. He has further submitted that the prosecution has produced three witnesses, out of them P. W. 1 Chhida Singh has turned hostile and the remaining two witnesses are the most interested persons and their evidence does not inspire confidence against the appellant. Mr. Kharlia, has submitted that the F. I. R. is delayed one, and the F. S. L. and post mortem report do not support the prosecution case, hence they cannot be utilized against the appellant. He has further submitted that the short comings and improvements made by the prosecution have not been considered by the trial court. Learned Public Prosecutor has supported the judgment passed by the learned trial court and has submitted that conviction for brutal murder committed by the appellant cannot be set aside merely on the basis of minor discrepencies, which are not very material. We have heard Mr. H. S. S. Kharlia, learned counsel for the appellant and learned Public Prosecutor for the State. It is not disputed that the deceased did die a homicidal death. P. W. 3 Dr. V. K. Sawansukha has conducted the post mortem examination and found following injuries on the person of deceased Satpal:- ******** It is not out of place to state here that the prosecution has examined all the three eye witnesses, P. W. 1 Chhida Singh, P. W. 4 Abhimanyu and P. W. 5 Roshni. Out of them P. W. 1 Chhida Singh is the servant of the complainant party but he has not supported the case of the prosecution. The remaining two eye witnesses viz. P. W. 4 Abhimanyu and P. W. 5 Roshni are real brother and sister of the deceased respectively.
(3.) P. W. 1 Chhida Singh has stated that when he returned after checking 'khala', he saw that Satpal was lying dead and showed his ignorance as to how Satpal had expired. This witness was declared hostile. In his cross-examination he has denied that he heard any sound of gun shot. In his cross-examination he has stated that Abhimanyu was not residing in Dhani but at 'dulmani' and on the date of incident Abhimanyu was not in Dhani. He has also denied that Roshni was present there as she was at her in- law's house, situated in another village. He has further stated that he saw Satpal dead at about 4-4. 30 a. m. He has further stated that a person has to reach field to check 'nakka' and 'khala' before 2-21/2 hours on the turn of water supply. Thus, the testimony of this witness does not help the prosecution at all. This leaves us with the testimony of P. W. 4 Abhimanyu and P. W. 5 Smt. Roshni. P. W. 4 Abhimanyu, the first informant has stated that the accused, who is his step-brother, was cultivating the agricultural land of Roshni, his real sister, for the last so many years. Later on, he and Satpal gave this land to Tota Singh Majbi. Due to this accused Banwari was annoyed. He has stated that 1 1/2 years back his brother Satpal had gone to start water supply at about 7 in the morning. The informant accompanied by his sister Roshni, was also going towards 'bandha', and their 'siri' (servant) Chhida Singh was taking care of 'khala' (water course ). He has also stated that at that time the accused Banwari accompanied by his son Shraman Kumar came out from their Dhani. Thereafter, Banwari asked Satpal to get ready and fired a shot with pistol, which hit Satpal and he fell down in 'khala' and when they reached near Satpal, he had already passed away. In his cross-examination he has denied the suggestion that on the day of incident he was serving at Pilibanga. He has admitted that Prithviraj, husband of Mst. Roshni was present in Dhani at the time of incident but due to illness he could not come. The distance between Dhani and the place of incident has been given at about 5 Bighas. He has also denied the suggestion that at the time of occurrence Roshni was at her field at 6 L. K. S. but has maintained that she was with them. He has also denied that accused Banwari was not cultivating any land of Roshni. He has admitted that in the F. I. R. he had not stated in the clear terms that Satpal was also with him in giving the land of Roshni to Tota Singh Majbi and he explained that he has used word 'hum' which included Satpal. At the time of receiving fire arm injury, Satpal was sitting and his face was towards the North and his right hand was between stomach and chest. He has stated that distance between him and Satpal was about 30-35 paces and Roshni was 5-7 paces behind him. He has admitted that they did not raise hue and cry when the incident had taken place. He has also stated in his cross-examination that police reached at the place of incident at 11 a. m. He has also admitted that Hansraj is his relative. ;