R. S. VERMA, J. - (1.) I have perused the judgment prepared by my learned brother Hon'ble Justice Jain. I am in entire agreement with him that this appeal must succeed. However, I would like to state briefly the salient features of the case, which persuade me to concur with my brother.
(2.) THERE is absolutely no doubt that on 6-11-82, an incident did take place at about 5 p. m. at which deceased Hari Ram received a gun shot injury and in consequence thereof he breathed his last on 7-11-82 at about 7. 15 a. m. in the Government Hospital at Sri Ganganagar. In this very incident, P. W. 1 Bhanwa Lal received two simple injuries by blunt object and two simple injuries by some sharp object (vide injury report Ex. P. 20 ). Also injured in this incident was P. W. 2 Krishna, who received four simple injuries by blunt object, one grievous injury by sharp object and one simple injury by sharp object (vide injury report Ex. P. 19), Four persons were put up for trial after due investigation and due commitment viz. the present appellants Dharam Pal and Shankar and two co-accused, Krishna and Satpal. Learned trial Judge did not find the prosecution case established against Krishna and Satpal but found proved in respect of Dharam Pal and Shankar as noticed in the judgment of learned brother Hon'ble N. K. Jain, J. The gist of the prosecution story is that all the four accused Dharam Pal, Shankar, Sat Pal and Krishna are sons of one Sohanlal who owned and possessed Square No. 60/281 in village 9 DBN. Out of this land, 10 kilas bearing Nos. 1,2,9,10,11,12,19,20,21 and 22 forming one block had been sold to Hari Ram and his sons Om Prakash, P. W. 1 Banwari, P. W. 2 Krishna and P. W. 3 Hanuman some two years prior to the incident and the possession of these kilas had also been handed over to the vendees. However, the vendors retained possession over remaining other kilas of the square, which formed the eastern block of the square viz. Kila No. 3 to 8. 13 to 18 and 23 to 24 (vide Ex. P. 4 site plan and its legend Ex. P. 25 ). On Kila No. 13 stood the residential dhanli of the accused persons. It appears that the cattle of accused persons used to stray into the block of vendees and cattle of Hari Ram and his sons used to stray in the block of the vendors and because of this there was some straining of relations between the two sides. The gist of the prosecution case further is that on the fateful day at about 5 p. m. P. Ws. 7 Banwarilal, Krishna and Hanuman and their father Hari Ram were busy in agricultural operation in their block. P. W. Hanuman was cutting guwar crop standing in Kila No. 21. P. W. 1 Banwari Lal and Krishna were cutting guwar crop standing in Kila No. 19. They were also removing the said crop to Kila No. 12, where Hari Ram was sitting. All of a sudden all the four accused named above entered the block of the vendees and they started abusing Hari Ram. At that time Dharam Pal was armed with a 12 bore gun, Shankar was armed with a pistol while Krishna and Sat Pal were armed with Kassis. When the accused-persons started abusing Hari Ram, P. W. l Banwari and P. W. 2 Krishna rushed to Kila No. 9. Hari Ram also reached that Kila 9. All of a sudden Dharam Pal fired his gun at Hari Ram hitting. Hari Ram on the left shoulder, with the result that Hari Ram fell there. Upon this P. W. 1 Banwari Lal snatched the gun from the hands of Dharam Pal. At this accused Sat Pal dealt various kassis blows to Banwari and Shankar fired his pistol at Banwari and his brothers but fortunately none was hit. Accused Krishna dealt Kassi blows to P. W. 2 Krishna. At this, Hanuman rushed from Kila No. 21 to Kila No. 9 with the result that all the accused persons ran away. Hanuman then went to village, brought a tractor and Banwari, Krishna, Hanuman brought Hari Ram to Suratgarh Police Station. P. W. 1 Banwari lodged a report of this incident viz. Ex. P. 1 at about 8 p. m. the same day and also produced the gun, which he had allegedly snatched from Dharam Pal. P. W. 10 Abdul Razak duly registered a case and seized the gun and duly sealed the same vide Ex. P. 2. He removed all the three injured persons to Government Hospital at Suratgarh and delivered Ex. P. 17 there. The Medical Officer at Suratgarh referred the injured to Government Hospital Shri Ganganagar the same night, and made an endorsement to this effect on Ex. P. 17. Abdul Razak recorded the statement of Hari Ram (Ex. P. 29) and removed the injured to Sri Ganganagar Hospital the same night where injured Hari Ram breathed his last.
(3.) THE prosecution story further is that Dr. R. K. Gupta conducted autopsy on the dead body of Hari Ram on 7-11-82 at 11. 30 a. m. and found one entry wound l"x3/4"x muscle deep. Pieces of wad were found embedded in this wound, which was surrounded by numerous entry wounds in an area of 7" x 4-1/2". He found as many as 18 wounds of exit. He recovered 20 pallets from these wounds. Beneath the wound, he found that arteries and veins in the delt-oid region had been lacerated and left numerous bone had been fractured. According to him, Hari Ram died due to shock and haemorrage as result of this injury which was ante-mortem in nature and was sufficient to cause death in the ordinary course of nature. Dr. R. K. Gupta also examined the injured Krishna and Banwari Lal and prepared injury reports Ex. P. 19 and Ex. P. 20. Usual investigation was made, a pistol was recovered at the instance of Shankar two kassis were recovered, one each at instance of Sat Pal and Krishna. Some other recoveries were also made, and the statements of witnesses were recorded. Upon such story, as stated already all the four accused were tried as aforesaid but participation of Sat Pal and Krishna was not found established, hence they were acquitted. However, the present appellants were held guilty as stated above. The gist of the defence was that on the fateful day and the fateful time, accused Dharam Pal was in his dhani. Deceased Hari Ram, Banwari, Krishna and Hanuman (P. W. 3) came to the dhani of Dharam Pal and started abusing him. He protested at which Hanuman fired at him but Dharam Pal tilted himself and was saved but one pallet hit his son Kuldeep aged about 4 years. At this, appellant Shankar, who resided in the same dhani came there At that time Krishna PW. 2 who had also a pistol fired at Dharam Pal but that too some how did not hit him. Thereupon Krishna P. W. hit Dharm Pal on the head with the pistol. Deceased Hari Ram and P. W. 1 Banwari were armed with lathis and they caused lathis blows to Dharam Pal. At this, Het Ram Bishnoi came there and challenged Hari Ram and his associates at which all these persons ran away. It is alleged that a report of this incident Ex. D. 4 was lodged the same day at P. S. , Suratgarh. Dharam Pal and Kuldeep were medically examined and injury reports Ex. D. 11 and Ex. D. 12 were prepared in this regard. Police had also filed a charge sheet Ex. D. 5a in this regard against Banwari Lal, Hanuman and Krishna (P. Ws. 5 ). Thus, it appears that the defence has taken the stand that deceased and his companions named above were aggressors and when Krishna P. W. wanted to fire again at Dharam Pal, he snatched the pistol from him' and fired the pistol in self defence, which hit Hari Ram (vide statement of Dharam pal recorded u/s 313 Cr. P. C.) This may be stated at the out set that the prosecution is required to prove its case beyond shadow of reasonable doubt. As against this, the defence is not required to prove its case to the hied and it is sufficient that the story put forward by the defence is highly probablised. One more principle which has to be kept in mind is that prosecution has to stand on its own legs and weakness or falsity of defence does not improve the case of the prosecution. ;