SHARMA, J. - (1.) THE appellant, a security guard, was indicated before the learned Special SC & ST (Prevention of Attrocity Cases) Ajmer in Sessions Case No. 20/95 (171/1994) for having committed murder of Head Constable Ganpat Paswan and Constable Ahmed Ali. THE learned trial Judge vide judgment dated May 20, 1997 convicted the appellant under Sections 302 and 307 IPC and sentenced him in each of the section to undergo imprisonment of life and fine of Rs. 1000/- in default to further suffer six months Rigorous imprisonment. THE sentences were directed to run concurrently. In the instant appeal the appellant has assailed the aforesaid finding of the learned trial Judge.
(2.) ON the Tower Posts that have been constructed all round the Central Jail Ajmer, the CRPF deploys its security guards to keep 24 hours vigil on the inmates of the Jail. ON the fateful day of June 30, 1994 Head Constable Ganpat Paswan and constable Ahmed Ali, after discharging their security duties were sleeping on their respective cots in a tent. Constable Ramjilal Meena (PW. 1) who was on security duty from 10 a. m. to 12 noon, handed over his charge to constable Lalit Chand Deka (appellant) and after taking food at the Mess, he proceeded to sleep around 12. 30 p. m. on his cot in the tent. He suddenly awoke on hearing shouts of gun fire and got up from his cot then he saw the appellant firing bullets from the rifle on Ganpat Paswan and Ahmed Ali. Thereafter appellant turned towards another Tent and opened fire at Subedar Gurudayal Singh. The incident of firing happened at 1. 40 p. m. as a result of which Ganpat Paswan and Ahmed Ali died at the spot. Ramjilal Meena could some how reach to the Police Station and submitted written report. Incharge Police Station with police squad came to the spot and appellant was forced to surrender and police arrested him. The Police Station Civil Lines Ajmer registered a case under Section 302 and 307 IPC and chalked out formal FIR Ex. P. 29 bearing No. 119/94. Commencing the investigation, Investigating Officer drew site plan, inquest reports, recorded the statements of the witnesses under Section 161 Cr. P. C. , got conducted autopsy on the dead bodies of Ganpat Paswan and Ahmed Ali, seized the fire arm, blood stained soil, pellets, empty cartridges from the site, guard duty register, blood stained clothes of the deceased as well as other relevant documents. On conclusion of the investigation charge sheet was laid. In due course the case came up for trial before the learned Special Judge SC & ST (Prevention of Atrocities Cases) Ajmer. Charges under sections 302, 307 and 324 IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution examined as many as 14 witnesses in support of its case and got exhibited 30 documents. In the explanation under Section 313 Cr. P. C. the appellant claimed innocence. No defence witness however was examined. The learned trial judge on hearing the final submission convicted and sentenced the appellants as indicated hereinabove. We have heard the submissions advanced before us and scanned the record. It is contended by Mr. J. S. Rathore, learned counsel appearing for the appellant that the presence of Ramjilal Meena at the spot was highly doubtful and the injuries sustained by the witness Gurudayal Singh were as per the medical evidence not caused by fire arm. The prosecution has suppressed the genesis of the occurrence. The witnesses examined by the prosecution are not of sterling worth. The first information report was suppressed by the prosecution and false case was concocted against the appellant. Rifle allegedly used in committing the offence was not recovered at the instance of the appellant and no document was produced to prove that the rifle used in commission of offence was allotted to the appellant. The investigation was not conducted by the investigating officer and necessary memos were not drawn by him. Motive to cause death was not introduced during the investigation and it was brought out for the time before the trial court. The FIR was sent late to Ilaqa Magistrate. Under these circumstances the learned trial Court has committed illegality in convicting the appellant. Reliance is placed on Jai Singh vs. State of Rajasthan (1), Ganesh Dhavan Patel and another vs. State of Maharashtra (2), Chandrabhan vs. State of Rajasthan (3), Ram Narain vs. State of Punjab Per contra Mr. S. S. Rathore, learned Public Prosecutor supported the impugned judgment and contended that the appellant was rightly convicted by the learned trial judge. The superstructure of the prosecution case is based on the testimony of Ramji Lal Meena (PW. 1) and Guru Dayal Singh (PW. 2), which is sought to be corroborated by the testimony of Dr. L. N. Singaksha (PW. 7) and investigating officer Sahdev Kaviya (PW. 12 ).
(3.) WE intend to refer at the outset the injuries sustained by the deceased. As per post mortem report (Ex. P. 26), deceased Ganpat Paswan sustained following injuries: 1. Wound of entry 3x1 cms. x ? elliptical, with invested margins and abraded collar 2. 5 cm. lateral to the outer angle of the Rt. orbit. The blackening is present around the wound. 2. Wound of entry- 1. 00 x 1/2 cms 16. 5 cms. up and lateral from the Rt. nipple in the Rt. Axilla, elliptical, with inverted margins and abraded collar. The depth is unknown. The blackening is present around the wound. 3. Wound of entry 1. 00 x 1/2 cms. 4. 00 cms. above and slightly, lateral to the I. No. II elliptical, the margins are inverted with abraded margins. The blackening is present around the wound. The depth is unknown. On dissection- The underlying bone is missing (of Rt. temporal) in area of 3 x 2cms. on further dissection the Rt. frontal bone Rt. parietal bone and left parietal bones are fracturalus area of 10x8 cms. as shown in figure, under the wound of exit measuring 12x4 cms. on left fronto parietal region. The meninges are found torn at places with extra dural, subdural and intra cerebred haemorrhages and tearing of brain at many places. The wound of exit is bigger irregular with margin irregular. Direction-Tongential passing from to the infront to the left fronto parietal region. These are antemortem in nature caused by riffled fire arm ammunitions and are of fresh duration prior to time of post mortem examination. Following the axillary wounds on further tracing the first four ribs are found fractured and also clavicle Rt. side. About 1 litre below us the Rt. side of pleural cavity. Upper 1/2 of the Rt. lung is turning to five pieces. Further trachea shows two wound on either side measure 3 x 1 cms. on Rt. and 5x3 cms. On It, side (skin intact on Rt. side of chest. On reflecting the skin the chest muscles contains clots on upper 1/2 and shows 8x5 cms. perforation on upper III of the Rt. side of chest wall ). The another wound (exit) measuring 12x12 cms. irregular on It. sub mandibular, region, eviding middle III of mandible fractured. In the path all the soft tissue structures are disturbed. No foreign body found. Direction -Obliquely inward, upward and left lateral side of body. Cause of death is shown coma due to intra cranial haemorrahages injury to the brain, Rt. lung and the structure of neck as a result of fire arm injuries (riffled fire arm ammunition ). Deceased Ahmed Ali sustained following injuries as per post mortem report Ex. P. 25. Wound of entry 2x1cms. x ? on the middle part of Rt. supra orbital margin, the wound is elliptical. (Rt. eye brow, middle III ). 2. Wound of Exit- 14 x 14 cms. on the left parietal eminevee- Depth? The wound is irregular. The brow matter is emerging from the wound. Details of wound of entry One elliptical, shape, irregular wound with margins inverted, and showing collar of abrasion around. During of the hairs, blackening on forehead. Rt. side of over middle III of Rt. eye brow. On dissection The under lying bone is absent in an area of 1x4cms. (frontal bone, Rt. side ). On further dissection the parietal bone on it. side underneath the wound of exit is found absent in an area of 4x1 cms. The menings are found torn at places with extra dural subdural and intra cerebral haemorrhages and tearing of brain at places. The wound of exit is at bigger wound, irregular with margin irregular. No blackening. Direction of injury- Through and through passing from at frontal region in front, to the left parietal region. Almost of the same angle, straight, way. Distance of firing. A close contact shot. These are antemortem in nature caused by riffled fire arm ammunition. The wound and fresh in duration prior to the time of death. The cause of death is coma due to intra cranial haemorrhage and injury to the brain as a result of fire arm injury (Riffled fire arm ammunition ). For the purposes of microscopic examination the I. O. had sent following articles recovered and seized during investigation to the FSL : 1. One 7. 62 mm. Rifle (SLR) No. EB 8273 & Butt No. 227 (without magazine) marked W/1. 2. One rifle magazine, marked w/2. 3. Thirteen 7. 76 mm K. F. /ofv Cartridges (found loaded in magazine) w/2) marked L/1 to L/13. 4. Three 7. 62 mm. K. F. /o. F. V. cartridge cases, marked C/1 toc/3. 5. Four 7. 62 mm. K. F. O. F. V. cartridge cases, marked C/4 to C/7. 6. Four pieces of copper jacketed bullets marked B/1 to B/4. 7. Two lead pieces of core of bullet marked B/5 & B/6. ;