- (1.) THIS is an appeal by Mukhram who has been convicted under sec. 307 of the Penal Code by the Sessions Judge of Ganga Nagar.
(2.) THE case relates to an incident which took place in village Dholipal at about 9 A. M. on the 23rd of July, 1951. THE prosecution story briefly was that one Nenuram was going from the Bazar to his house. As he was passing through the Bazar, Mukhram appellant came from behind and shouted to him to be careful and added that he would shoot him. Nenuram looked back and saw Mukhram holding a pistol in his hand. Nenuram tried to run away but the appellant fired at him with the result that he was hit on the neck. THE bullet pierced his neck and passed out below the left side of his chin. Nenuram fell down unconscious. One Gangajal was also coming from behind and ran towards the place and caught: hold of the accused when he was loading the pistol again. THE accused, however, got himself free and ran towards the tank. One Ratna had also come up and seen the incident. THEreafter, Gangajal and Ratna helped to remove Nenuram to his house. From there he was taken to the railway station and brought to Ganganagar hospital by them. His nephew Banwarilal met him at the hospital and was sent by him to make a report at the Thana Sangeria in the jurisdiction of which village Dholipal lies. Banwarilal went to Sangeria by the next train and made the report at 9-30 P. M. Next day, Moti Lal Assistant Sub-Inspector went to the spot and commenced investigation. He searched the house of the accused but nothing incriminating was recovered on the occasion. THE accused was also absconding. Later he learned that the accused was hiding in village Nukera and went there to arrest him; but on reaching Nukera he come to know that the accused had already gone away to his village. He then returned to Dholipal and surrounded the house of the accused and arrested him. THE house was also sear~hed and this time a country-made pistol of 38 bore with three cartridges was recovered therefrom. This search and the arrest of the accused took place on the 30th of July, 1951. THEreafter the' accused was prosecuted under sec. 307 of the Penal Code. THE reason tor this attack, which is given by the prosecution, is that there was enmity from before between the accused and Nenuram. The accused pleaded not guilty. He admitted that there was bad blood between him and Nenuram from before. He said that on account of that bad blood, Nenuram had falsely implicated him in this case. There are two main witnesses in this case, namely, Nenuram who was injured and Gangajal. The third witness Ratna did not support the prosecution case either in the committing Magistrate's court or in the Sessions Court!, and said that he saw nothing. We have been taken through the evidence of Gangajal and Nenuram and see no reason to dis-beli eve their testimony. The evidence of Nenuram has been attacked on the ground that he bears enmity with the accused. But enmity is always a double-edged weapon and the reason given by the prosecution for this attack was the previously existing enmity between Nenuram and Mukhram. As for Gangajal it is said that he is related to Nenuram and that is why he came forward to give, false evidence in his behalf. The accused produced one defence witness to prove the relationship but even accepting that man's statement to be correct, it appears that Gangajal is a distant relation of Nenuram, viz. , they are great-grandsons of two brothers. It cannot, therefore, be said that the relationship is such that Gangajal would be prepared to perjure himself for the sake of Nenuram. It has further been argued that Ratna who was not related to Nenuram has not supported the prosecution story though he is mentioned in the first report as present when the incident took place. That is undoubtedly so; but all that Ratna has said is that he was not present at all when the incident took place. He has not suggested any different version as to the manner in which Nenuram was injured. It was impossible for the prosecution to suggest any reason why Ratna should have turned hostile. In any case, we do not attach much importance in the circumstances of this case to Ratna's statement that he saw nothing whatsoever. Even if that statement is correct it does not in any way detract from the statements of Nenuram and Gangajal. It may be added that Gangajal's name was mentioned in the first report as an eye-witness of the incident. The next point that has been urged on behalf of the accused is that the story for the prosecution becomes suspicious as there was a good deal of delay in the making of the first report. Sangaria police station is twelve miles from village Dholipal, and at first glance, it does appear that the report was made with delay; but the explanation that has been given in this case is quite satisfactory. The first thing that was done after the incident was over, was to take Nenuram to the nearest hospital that is, Ganganagar. This was necessary in order that he might receive medical attention at the earliest stage and his life be saved. After Nenuram reached Ganganagar he found his nephew there. He then instructed his nephew to go and make a report at the proper Thana. This was some time after mid-day. His nephew Bhanwarlal then went by the next train to Sangaria and that is how the report came to be made at 9-30 P. M. This explanation, as we have already said, is satisfactory and the delay, therefore, that took place in the making of the report is not of material significance in this case. The next point that has been urged is that the first report says that the pistol that was used was 303 while the pistol which was recovered on the second occasion from the house of the accused was of 38 bore. It is alleged, under these circumstances, that the injury could not have been caused by this pistol even if it be assumed that the pistol belonged to the accused. It is further urged that the statement of Gangajal is falsified by these circumstances inasmuch as he stated that this particular pistol which was recovered from the house of the accused was the one used for shooting Nenuram. It is enough to say that Banwarilal who made the report had not seen the pistol. Further, the difference in bores 303 and 38 is not very great and Nenuram who was the informant of Banwarilal could only have been guessing about the bore of the pistol which he saw in the hand of the accused. We, therefore, attach no importance to the fact that in the first report the bore of the pistol is given 303 while the pistol recovered from the house of the accused is 38 bore. Then it has been urged that no empty cartridge was found on the spot where the incident is alleged to have taken place and that no blood either was discovered there by the police. We are of opinion that the absence of blood is explained by the fact that the police went to the spot twenty-four hours later and the place where the incident took place is a thoroughfare in the bazar of the village. In this period of twenty-four hours, it is possible that the marks of blood might have disappeared. There is nothing to show that any special guard was kept at this place to see that no one trampled on the marks of blood on the ground. The fact therefore that there was no blood discovered in the bazar on the next day does not mean that no incident had taken place there. As to the non-recovery of the empty cartridges, it is enough to say that the pistol in question, which we have seen, does not eject the cartridges automatically. On the other hand, the cartridge has to be taken out before another cartridge can be fitted into. It is not impossible, therefore, that the accused, when he took out the cartridge, might have kept it in his pocket instead of throwing it away. No importance, therefore, can be attached to these two circumstances relied upon by the accused. The last point that has been urged is that the recovery of the pistol in this case was not in accordance with the provisions of sec. 103 of the Criminal Procedure Code, and, therefore, we should not accept it as a fact that the pistol was recovered from the house of the accused. The only witness about the recovery is the Asstt. Sub-Inspector, though the recovery list shows that there were two search witnesses present when the pistol was recovered. It is the duty of the prosecution in cases of this kind to mention the names of the witnesses so that the court may summon them if it so desires. It is true that under sec. 103 (2) Cr. P. C. , it is provided that "no person witnessing a search under this section shall be required to attend the court as a witness of the search unless specially summoned by it. " Prudence requires that the court should summon search witnesses in cases where evidence of search is material. In this particular case we find from the charge-sheet that the names of search witnesses were not even mentioned therein and that explains why the court also failed to summon them. This is, however, only an irregularity and does not mean that we cannot use the evidence of the Assistant Sub-Inspector Motilal to prove the recovery of the pistol. The next point that has been urged in this connection is that the two witnesses did not belong to the locality They are both residents of Nukera which is at a distance of seven miles from village Dholipal. It seems that the Sub-Inspector had taken these two witnesses with him because he had originally gone to Nukera to arrest the accused. He brought them along with him from Nukera when he came to Dholipal on receiving information that the accused had gone away to Dholipal. It may also be that he brought these witnesses in order to avoid any search for fresh witnesses and thus allow time to the accused to slip away again. But in any case, even if these witnesses are from some distance, that is also merely an irregularity and we are still left with the evidence of the Sub-Inspector to decide whether the recovery of the pistol had actually taken place or not. Learned counsel for the accused referred to two cases in this connection. In Inderjit vs. Emperor (1) (A. I. R. 1947 Allahabad 165.) it was held by a learned single Judge of the Allahabad High Court that the provisions of sec. 103 Cr. P. C. were mandatory, and that where neither of the two search witnesses belonged to the locality, the provisions, of sec. 103 were not complied with and, therefore, the prosecution could not be sustained. Reliance in this case was placed on two earlier cases Sadlu vs. Emperor (2) (A. I. R. 1934 All. 374.) and Ramchandra vs. Emperor (3) (A. I. R. 1935 Allahabad 520 ). In Sadlu's case, all that was held was that where respectable persons could be found in the neighbourhood, and the police officer making a search took with him persons whose respectability was questionable or who come from a distant locality, the inference might be that he was prompted by a desire to have such witnesses as would be easily persuaded to support any story which he might put forward. This case therefore, does not go to the length of Inderjit's case and merely refers to the credibility of the evidence in such circumstances where witnesses were not of the same locality. In Ramchandra's case, the search witness had been twice convicted of serious crimes, and it was held that such a witness was not suitable. It is also pointed out in that case that there was reason to comment adversely against the Sub-Inspector on account of the relationship between him and the brother of the witness. In the circumstances the conclusion was that the case was not genuine. The case, therefore, also did not hold that the prosecution could not be sustained simply because some of the provisions of sec. 103 were not complied with. In Dr. Jainand's case (1) (A. I. R. 1949 All. 291.), reliance was no doubt placed on Panda Inderjit's case; but it seems that the learned Judge in Dr. Jainand's case did not go to the same length as to the decision in Panda Inderjit's case. All that he said was that "where the search witnesses were the residents of localities, different from that where the search was carried out, the officer conducting the search had made no attempt to secure the presence of respectable persons from the locality, when they could have been procured, and it was found that one of the search witnesses had protested on his being called to witness the search and that there was a difference between the ink of his thumb impression and the ink of the writing of the search list, the search could not be called a good search and that it could not be made the basis of a successful prosecution. " Thus even in Dr. Jainand's case, there were other circumstances for disbelieving the search and it did not decide that such a search was illegal and the court could not scrutinize the rest of the evidence to discover for itself whether the article was actually recovered or not. We are of opinion that the view taken in Panda Inderjit's case is not the correct view of the law. We may in this connection refer to the case of Bana Mali Bhattacharya vs. Emperor (2) (I. L. R. 1939 Cal. 210.) In that case it was held that "failure to comply with the provisions regulating searches may cast doubt upon the bona fides of the officers conducting the search. But when once the evidence has been believed it is obviously no defence to say that the evidence was obtained in an irregular manner. There is nothing in the law which makes such evidence inadmissible, and a conviction based on such evidence is not invalid on that ground alone. " If we may say so with respect this is the correct view of the law so far as sec. 103 Cr. P. C. is concerned.
(3.) WE shall, therefore, now proceed to scrutinize the evidence of Assistant Sub-Inspector Motilal to decide whether we can believe that the pistol was recovered from the house of the accused as stated by him. The suggestion on behalf of the defence is that no recovery whatsoever took place from the house of the accused and that the pistol which had been produced in court was somehow procured by the Assistant Sub-Inspector and the whole evidence as to recovery of the pistol from the house of the accused was concocted. It seems to us that if the intention of Assistant Sub-Inspector Motilal was to fake the recovery of that pistol, there was no reason why he should not have faked that recovery when he first searched the house of the accused on 24th of July, 1951. WE, however, find that on that day the accused was not present in his house and nothing was recovered from the search. On 30th July, the accused was arrested and the house was again searched and then this pistol was recovered. It seems to us that the explanation of the recovery is simple. On the first occasion when the search was made, the accused was not at his house and he might not have left the pistol behind. On the next occasion the accused was found and must have brought the pistol with him. He must have thought that as the house had already been searched, no second search would take place and it was safe to keep the pistol in the house. Unfortunately for him, the Assistant Sub-Inspector searched the house a second time and that is how the pistol was recovered. WE see no reason to disbelieve the statement of Assistant Sub-Inspector Motilal. WE are satisfied that the pistol was recovered from a room of the house of the accused where he was himself hiding at the time. The recovery of this pistol from the possession of the accused corroborates the statement of Gangajal who said that it was this pistol which he saw with the accused when the incident took place. On a careful consideration of the evidence in this case we are satisfied that the prosecution story is true, and the appellant has been rightly convicted. Learned counsel has finally urged that the sentence of seven years' rigorous imprisonment is very harsh and prays for its reduction We are of opinion that there is no reason for reduction of the sentance. It was lucky that the bullet did not cause a more serious injury than it actually did. The appeal is hereby dismissed. .;