V. S. DAVE, J. - (1.) THIS appeal has been preferred against the judgment passed by learned Sessions Judge, Dholpur on 30. 08. 1989 whereby he convicted the accused-appellant for offence under Sec. 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 100/- in default of payment of fine he was directed to further undergo seven days' rigorous imprisonment.
(2.) BRIEF facts leading to this appeal are that a first information report was lodged at Police Station, Mania district Dholpur on 6. 06. 1987 at 9. 30 pm. by Prayag Singh (pw. 1) wherein it was stated by him that in the noon one Mukandi and Pritam Jatav had come from village Kailashpur to borrow some money from his uncle When they were returning, Bachana son of Bhima Thakur, who is their neighbour and is a decoit, came to their house and started beating Jatavas. He was asked as to why he was beating these persons on which Bachana replied that he will beat them and they should not forget the earlier happenings when he had set on fire his field. Bachana thereupon said that in the evening, he would show it again. In the evening at about 6. 30 pm. , before sun-set, when he and his uncle Ramji Lal along with his brother Pappu and another uncle Chob Singh were on their tube-well in the field, accused-appellant Mohra armed with a revolver and Bachana armed with a 12 bore gun came there Mohra told the complainant as to why they were siding with Jatavas and they would have to pay the price for the same. Saying this, Mohra fired towards Chob Singh, which hit him in the stomach. He fell down as a result of injury and died on the spot. Bachana had fired on the author of the report Prayag Singh, but it passed away near his arm and he was not injured. On their raising alarm, villagers came along with their guns and they opened fire. On receipt of this report, a case for offence under Secs. 302 and 307 read with Sec. 34 IPC was registered and investigation commenced. Mr. Than Singh (pw. 7) Investigating Officer, immediately went to the place of occurrence and found the dead body lying on a cot. Since it was 11. 30 in the night, he deferred the investigation for the next day and placed a guard at the place where dead body was lying. Early morning he prepared an inquest report and site inspection memo. According to site inspection memo Ex. P. 3, the Investigating Officer found the corpse lying near the tube well in the field of the compliant. The dead body was sent for autopsy and the postmortem examination was conducted by Or. Sarin who found following injuries on the person of the deceased ***** In his opinion death was caused due to gun shot injury to the vital organ on the body causing haemorrhage and shock. After completing the investigation, a charge-sheet was submitted against the accused-appellant alone, in view of the fact that Bachana absconded and was not traceable. The accused-appellant was committed to the court of session at Dhol-pur and the learned Sessions Judge framed charges for offence under Sec. 302 and 307 read with Sec. 34 IPC against the appellant, who pleaded not guilty to the charges and claimed to be tried. Prosecution examined 9 witnesses in support of its case and the accused none. The learned Sessions Judge held the accused guilty of offence under Sec. 302 IPC and convicted and sentenced him as indicated above. He, however, acquitted the accused appellant for offence under Sec. 307 IPC read with Sec. 34 IPC.
(3.) CHALLENGING the conviction and sentence of the accused appellant, learned counsel for the appellant submits that the learned trial Court has erred in not appreciating the evidence in right perspective. It is submitted that there is no independent witness available in the case and the four witnesses viz. , Prayag Singh (pw. 1) Pappu (pw. 2), Ramji Lal (pw. 5) and Bachhu Singh (pw. 9) belong to one family. It is submitted that deceased Chob Singh is brother of witness Ramji Lal and uncle of Prayag Singh, Pappu and Bachhu Singh. It is also submitted that name of Bachhu Singh does not find place in the F. I. R. also, It is submitted by learned counsel that the F. I. R. which is a written report and lodged son after the incident, is not corroborated by the medical evidence. No entry wound has been found on the stomach of the deceased, as mentioned in Ex. P. l. It is also submitted that it is subsequent to the post-mortem report that the Investigating Officer has made embroideries in the case and has made over writings in the statements recorded under Sec. 161 Cr. P. C where instead of word 'pet (PET) he has altered it to Peeth', (PEET) Similarly, it is submitted that over writings have also been done in Ex. P. 4, the alleged inquest report. It is submitted that there is no consistent evidence about the place of occurrence also. The complainant party admittedly had removed the corpse from the place of occurrence and has placed it on the cot. According to the prosecution own witness, no blood was found at the place where the incident is alleged to have been shown while it is submitted that the other witnesses have stated that injury was caused on stomach from the point blank range on the back of the deceased but according to the medical evidence, no blackening or tatoling was found. Learned Public Prosecutor as well as the counsel for the complainant Shri S. K. Gupta, have supported the judgment of the trial Court and vehemently argued that the evidence of all the four eye-witnesses is consistent; that, it was the gun-shot fired at by accused-appellant Mohar Singh which hit the deceased in the back. It is submitted that on the basis of minor contradictions, acquittal of the accused cannot be recorded and the case has to be seen from the totality of circumstances available. It is submitted that in cases of gun-shots, the witnesses can make slight error in observing the exact place of hitting the body and in the instant case because there was bigger whole in the stomach, the witnesses might have stated initially that the injury was caused in the stomach. We have considered the rival submissions and have gone through the record carefully. ;