LODHA, J. - (1.) THIS is a joint appeal by the two accused Kashiram and Mohan Lal who have been convicted by the Additional Sessions Judge, Sri Ganganagar, for an offence under sec. 302 I. P. C. for causing the murder of Bhajanlal and have been sentenced to imprisonment for life.
(2.) THE prosecution story, put in brief is that both the accused Kashiram and Mohanlal had enmity with the deceased Bhajanlal. Mohanlal is alleged to have been beaten by Bhajanlal and his brother Binjaram P. W. 1 some time in the year 1961 A. D. Again, about four or five months before the present occurrence. Kashiram accused had filed a report in the police against the deceased Bhajanlal as well as against his brother Binjaram P. W. 1 and Hansraj P. W. 2 regarding an alleged incident of firing. THEse two incidents are said to be the cause for the crime. It may be stated here that Bhajanlal had four brothers Khyaliram, Binjaram P. W. 1, Maniram and Brijlal. Partition had taken place amongst these brothers and the tube-well shown by mark No. 11 in the site plan Ex. P-3 situated in Chak 2y fell to the share of Binjaram and exclusively belonged to him. THE prosecution story is that on 21st September. 1970, at about 9 30 P. M. while Bhajanlal (deceased ). P. W. 1, Hansraj P. W. 2 and Sohanlal P. W. 3 were returning from the tube-well of Binjaram, the accused Mohanlal and Kashiram who laid in wait for Bhajanlal near the house of one Roshanlal, marked as No. 5 in the plan, fired three gunshots at Bhajanlal as a result of which Bhajanlal fell dead in the canal marked No 3 in the site plan. According to the prosecution, the occurrence had been witnessed by P. W. 1 Binjaram, P. W. Hansraj and P. W. 4 Kishenlal who was at that time present in the house of Roshanlal. Sohanlal, however, did not witness the occurrence as he had parted company from Bhajanlal and others a little earlier and had gone in a different direction. A first information report of the occurrence was lodged by P. W. 1 Binjaram at police station Sadar. Sri Ganganagar, situated at a distance of about six miles from the place of occurrence at 11. 45 P. M. A copy of the first information report has been placed on the record and marked Ex. P. 2 After recording the first information report, the S. H. O. Bhanwarlal P. W. 5 proceeded to the spot and recovered the dead body of Bhajanlal as well as nine pieces of wads besides certain other articles out of which one Chappal alleged to be of Chandrakala. daughter of the deceased Bhajanlal needs special mention. We may point out, here, that both the accused persons were not found at their place of residence In village Chak 2y but they surrendered themselves before the Munsiff-Magistrate Fazilka, State of Punjab and were ultimately brought to Rajasthan by P, W. 5 Bhanwarlal on 5-10-70 and were thereafter prosecuted in the court of the Munsiff-Magistrate, Sri Gangangar, who after holding an enquiry committed them for trial to the court of the Sessions Judge, Sri Ganganagar, but the case was ultimately transferred to the court of Additional Sessions Judge, Sri Ganganagar, for trial, There is no denying the fact that Bhajanlal had been killed by gun-shot injuries on the relevant date and at the place where his dead body was found. According so the evidence of Dr. A. R. Dass (P. W. 6), there were following injuries present on the body of Bhajanlal : "1. Gunshot lacerated wound 2" x 2-1/2" x 4" on left side of the chest, directed backwards injuring skin, subcutaneous muscle, causing fracture of 2nd, 3rd and 4th ribs of left side. Laceration pericardium, upper part of heart and aorta, and left lungs. This is the wound of entrance. No wound of exit found. 2. Gun shot lacerated wound 2" x 1-1/2" x 2" left side of the chest, wound directed backwards causing injury to skin, subcutaneous muscles, fracture of 8th and 9th ribs of left side, left lungs. The wound situated at the anterior axillary line. This is the wound of entrance. No wound of exit found. 3. Gun shot lacerated wound 1" x 3/4" x 1-1/2" right side of the chest 1-1/2" right to the mid line at the level of xyphoid process. The wound directed backwards causing injury to skin, subcutaneous muscles, fracture of the 9th and 10th ribs of right side laceration of right lung and liver. This is the wound of entrance. Gun shot lacerated wound 1" x 1/4" x 1/2" right side of the back at the level of eleventh rib at the posterior axillary line. This is wound of exit, on passing the probe it has been found that injuries Nos. 3 and 4 are continuous. " On post-mortem examination, the Doctor removed 25 pellets, 3 corcks and one cover from different parts of the body of the deceased. 4. At the time of surrender, both the accused also produced one double-barrelled gun each but admittedly there is nothing on the record to establish the connection of these guns with the crime in question. The case admittedly rests on the direct testimony of the alleged eve-witnesses P. W. 1 Binjaram, P. W. 2 Hansraj and P. W. 4 Kishenlal. The learned Additional Sessions Judge has relied on the testimony of P. W. 1 Binjaram and P. W. 2 Hansraj but did not place any reliance on the statement of P. W. 4 Kishenlal as he had prevaricated himself. He further took into consideration the circumstance of alleged abscondence the accused soonafter the crime and in the result convicted the accused for causing the murder of Bhajanlal. There is no denying the fact that the case against the accused appellants rests on the testimony of the two alleged eye-witnesses Binjaram and Hansraj, In order to establish the presence of these witnesses at the spot at the time of occurrence, the prosecution has examined one more witness P. W. 3 Sohanlal. We may state here, that the prosecution has examined one more witness P. W. 4 Kishenlal who too was alleged to be present at the time of the occurrence; but his evidence has been considered by the lower court to be not at all reliable, and even before us, Mr. Ganpatram who argued the case on behalf of the State with permission of learned counsel for the State did not place reliance on the testimony of this witness We have gone through the statement of P. W. 4 Kishenlal and agree with the lower court that no reliance can be placed upon him. We, therefore, do not consider it necessary to discuss the evidence of this witness and shall confine our discussion to the evidence of the three witnesses mentioned above namely P. W. 1 Binjaram, P. W. 2 Hansraj and 2. W. 3 Sohanlal. Learned counsel for the appellants has urged that Binjaram and Hansraj are very closely related to the deceased. Binjaram is admittedly the brother of the deceased Bhajanlal & Hansraj his nephew. It is further submitted that these witnesses are inimical to the accused. The learned counsel has argued that these witnesses were not present at the spot at all and have come forward to give evidence against the accused simply in order to create evidence against them, otherwise they were not at all present when the deceased Bhajanlal was killed, and as a matter of fact these witnesses had not seen the assailant or assailants, as the case may be, at all. It has also been strongly contended that the evidence of these witnesses is inconsistent with the medical evidence regarding the injuries found on the dead body of Bhajanlal. In this connection, it has also been argued that the first information report was not lodged at the time when it purports to have been lodged inasmuch as a copy of the same was not sent to the Magistrate till 23rd September, 1970, that is on the third day of the occurrence, and, therefore, the prosecution story as set out in the first information report is not a genuine one but it contains a concocted version. Besides these contentions, it has also been pointed out that the charge in the case is defective inasmuch as the date of occurrence is mentioned in the charge as 29th September, 1970 whereas the prosecution case is that the occurrence took place on the 21st September, 1970. This infirmity in the charge, it is contended by the learned counsel, has resulted in a serious prejudice to the accused inasmuch as had they known that they were being charged of an occurrence which took place on 21st September, 1970, they would have led evidence of alibi by showing their presence somewhere else on that day. In our opinion, the main point in the case which arises for decision is whether we can safely act upon the evidence of P. W. 1 Binjarom and P. W. 2 Hansraj. Admittedly these witnesses are very close relations of the deceased. It also appears to us that the relations between these witnesses and the accused were strained. P. W. 1 Binjaram has stated that some 8 or 10 years ago, that is, some time in 1961 A. D. the deceased Bhajanlal beat the accused Mohanlal. It is further stated by him that Kashiram is a relation of Mohanlal and Kashiram lodged the report against Bhajanlal about an incident of firing by Bhajanlal. He has also stated that there was a report regarding beating by Mohanlal though the police did not challan Chajanlal on the report of Kashiram about the incident of firing. He has further admitted that he was named as a co-accused with Bhajanlal in the first information report though he was not challaned. He has also stated that Bhajanlal and Brijlal were prosecuted in the case of assault filed by Mohanlal. P. W. 2 Hans Raj has also admitted in his cross-examination that a report was lodged against him, Bhajanlal deceased and Kishenlal P. W. 4 by Kashiram regarding an incident of firing some four or five months before the occurrence. He has further stated that Bhajanlal had enmity with Mohanlal. P. W. 3 Sohanlal has also stated in his cross-examination that he had lodged a complaint against the accused Mohanlal for causing a breach in the canal. It further appears from his statement that the complaint filed by him recoiled on the witness himself and he was prosecuted for breaking the canal and in that case Mohanlal accused appeared as a witness against him. He has further stated that along with him Binjaram was also prosecuted in this case. From what we have stated above, it is amply clear that the relations between the accused and the three witnesses Binjaram, Hansraj and Sohanlal were not only not cordial but were very much strained. It is also beyond controversy that Binjaram, and Hansraj are very closely related to the deceased and as such very much interested in the prosecution against the accused who were their enemies. We have, therefore, to scrutinise the evidence of these three witnesses very closely and carefully in order to ascertain whether their evidence is true and can be relied upon. P. W. 1 Binjaram has stated that he and his nephew Hansraj were present at his tube-well and at about 7 P. M. his brother Bhajanlal and Sohanlal also came there and stayed there for two hours to two hours and a half and thereafter all of them that is Binjaram, Hansraj, Sohanlal and the deceased Bhajanlal left the tube-well together. Sohanlal is said to have parted company with them and went towards his 'dhani' whereas the two brothers and the nephew Hansraj proceeded towards their Dhani. It is stated by this witness that when they reached in front of the house of Roshanlal Kishanlal, they saw the accused Kashiram and Mohanlal coming out from the water course and both of them shouted on seeing Bhajanlal that they had been waiting for him and after saying so Mohanlal fired at Bhajanlal as a result of which Bhajanlal fell down in the water-course. Kashiram and Mohanlal are then alleged to have come out of the water-course and then Kashiram fired another shot at Bhajanlal and thereafter Mohanlal fired one more shot. More or less, the same is the statement of Hansraj. P. W. 2 Hansraj has stated that his land is situated at-a distance of about six squares from Binjaram's tube well. His version is that he had gone to Binjaram's tube well that day in the morning and thereafter went to Ganganagar to get the shaft of the machine fitted on the tube-well repaired, and came back to the tube-well of Binjaram at 12 noon. It is further stated by him that they started working the tube-well at 4 P. M and stayed there till 9 P. M. The land of the deceased Bhajanlal is situated at some distance from the tube well of Binjaram and it does not fall on his way when he returned from his field to his Dhani. A question, therefore, naturally arises for what reason he should have gone to the tube-well of Binjaram and should have stayed there for about 2-1/2 hours especially when it was time for him to take his meals ? So also a question does arise in the case of P. W. 2 Hansraj as to why he should have stayed at the tube-well of Binjaram till 9 in the night ? P. W. 3 Sohanlal who is also said to be present at the tube-well of Binjaram and is stated to have started from there along with Bhajanlal, Binjaram and Hansraj does not give any specific purpose of his visit to the tube-well of Binjaram, He has stated that for two hours, all of them continued to have a casual talk at Binjaram's tube-well and did nothing This witness also states that Bhajanlal had asked him to go to Binjaram's tube-well, but for what purpose he has not said a word We may state here that in order to clarify certain points on which the statements of two witnesses namely Binjaram and the doctor were incomplete, we examined them further in this Court on 3rd April, 1972, and in the further examination, Binjaram has stated that Bhajanlal had come to his well that day only casually and then in the next breath he stated that he had come there to see the witness tube-well which had gone out of order some 8 or 10 days before the day of occurrence and it had started working only that day. It appears to us that the prosecution has failed to ascribe a convincing reason for the presence of Bhajanlal, Sohanlal and Hansraj at the well of Binjaram on the day of occurrence. All that can be spelt out from the evidence of these witnesses on the point is that Bhajanlal and Sohanlal had gone there without any purpose whereas Hansraj had gone to Binjaram's well for helping Binjaram in getting the shaft repaired. We do not mean to suggest that it was impossible for Bhajanlal, Hansraj and Sohanlal to have gone to the well of Binjaram that evenings But we are nevertheless doubtful about their presence at Binjaram's well and do not feel convinced that they must have started together for their houses at 9. 50 P. M. . However, for that reason alone, we are not discarding their testimony and will proceed to examine how far the version given by these witnesses of the incident is true? The incident is stated to have taken place in "rampratap-ki-Dhani' which refers to a collection of Dhanies. P W. 1 Binjaram has stated that there are three to four houses in the Dhani of Hansraj P. W. 2 ['hansraj has further stated that there are eight to ten inhabited houses in the Dhani of Rampratap. It is surprising that not a single individual residing in the locality turned up after hearing report of three gun-fires. It has been suggested on behalf of the State that people living in the locality must have been frightened and therefore no body dared to go out at the spot. We can understand people not intervening; but we are not prepared to accept that none of the inhabitants at that quiet hour of the night should have come out to make inquiries as to what had happened ? According to the evidence of the eyewitnesses the culprits did not stay at the site long and after having fired at Bhajan Lal, three shots in quick succession, they made good their escape. Consequently it is not compatible with the ordinary course of human conduct that none of the persons residing in close proximity of the place of occurrence should not have turned up at the spot. We have it in the statement of P. W. 1 Binjaram that after the accused had left the spot, the relations of the deceased had come there. It is then difficult for us to accept that no other persons living in the locality should have turned up even when the relations of the deceased did come with the result that we have no independent evidence direct or circumstantial to lend assurance to our minds that at any rate these witnesses namely Binjaram and Hansraj were present at the spot and had witnessed the occurrence. Then again, as we have already stated above, the accused were inimically disposed not only towards the deceased Bhajanlal but also against Binjaram, and when two of them were armed with formidable weapons like double-barrelled guns and also extra cartridges, as they are said to be carrying bandoliers with them, it does not stand to reason that they should have left Binjaram and Hansraj untouched. This factor also creates doubt in our minds regarding the presence of these witnesses at the relevant time. It is in the evidence of these witnesses that having seen and heard the first shot fired at Bhajanlal, they concealed themselves in the water-course and none of them uttered a word. This means that these witnesses did apprehend danger at the hands of the accused. This is not all. Both these witnesses have given a uniform statement that both the accused shouted on seeing Bhajanlal that they had been waiting for him. This also appears to us to be rather unnatural, and, at any rate, we cannot see any reason why they should have shouted in chorus specially when in order to conceal their presence and identity they had lain in wait for Bhajanlal. At this stage, it may also be mentioned that it was a dark night and admittedly there was no electric or any other light near the place of occurrence. It is said that there was a lantern lying in the court-yard of Roshanlal where P. W. 4 Kishenlal is said to be present. But it is not the case of the prosecution witnesses that it was on account of the light of the lantern that they could identify the assailants. The distance from which the eye-witnesses are stated to have identified the assailants has been given differently by these two witnesses. P. W. 1 Binjaram has stated that when the accused persons came out of the water-course they were at a dis. tance of about ten paces from them (one pace equal to 2-1/2 feet ). He goes on to state that the accused were at a distance of 3 to 4 paces from Bhajanlal & Bhajanlal was a little ahead of them even though the witness and Hansraj were side by side. We fail to understand why should have Bhajanlal proceeded ahead of these two witnesses. Then again, it is stated by this witness that they (meaning thereby the witness and Hansraj) had identified both Kashiram and Mohanlal from a distance often paces. P. W. 2 Hansraj has stated that Mohanlal accused was at a distance of about ten paces at the time of first fire. He has also stated in a parrot like manner that both the accused had shouted that they had been waiting for Bhajanlal. He further states that both of them did got attempt to run away but sat in the water-course. He further states that at the time of second and third firing, the accused persons were at a distance of 4 to 5 paces, that is, 10 to 15 feet from them and were clearly visible to them. When further cross-examined on the point, Hansraj has stated that1 both the accused had passed at a distance of 5 to 6 feet from both of them. It is highly doubtful that if these witnesses were there they would have continued to stay without uttering a word in the face of successive fires by the accused at Bhajanlal. Regard being had to the ordinary course of human conduct, either they would have fled away, or, inimically disposed as they were, they would not have been allowed to go unscathed by the accused Mohanlal and Kashiram with whom their relations were highly strained. We may also point out, here, that we are not certain about the time of occurrence either and cannot rule out the possibility that the occurrence may have taken place earlier than what it has been stated to be in the first information report. The distance between the place of occurrence and the police station Ganganagar is six miles which should not have taken more than two hours. The two witnesses are stated to have gone to their houses and some of the inmates of the houses are also alleged to have come to the spot. This must have also taken some time. At this juncture, we may also make reference to the fact that the occurence report, as it may be called, was sent to the Magistrate on 23rd September, 1970, practically by the time everything had been done in connection with the investigation except that the accused had not been apprehended. It has been pointed out to us on behalf of the State that it was despatched to the Prosecuting Inspector on 22nd. But no reason has been pointed out to us why was it not presented before the Magistrate on that day ? The post-mortem examination of the body of Bhajanlal had been made on 22nd September, 1970 at 2 P. M. We are not in a position to come to any positive finding that the time of lodging of the first information report has been wrongly mentioned. But there is a reasonable doubt, in our minds, that the first information report had been made after the relations of the deceased had discussion among themselves and, therefore, the argument on behalf of the State that since the first information report had been lodged promptly containing the necessary details and the names of the eyewitnesses, and therefore, there is a ring of truth about the prosecution version, loses the strength and the force which we would have otherwise attached to it, but for the fact that it reached the Magistrate after the post-mortem examination and all other investigation at the spot had been completed.
(3.) A word may be necessary regarding the evidence of these witnesses on the question of distance from which the accused are alleged to have fired their guns at Bhajanlal. It is true that in case of estimates of distance from which a gun is fired, not much importance can be placed specially in the case of illiterate and semi literate villagers. But in the present case the discrepancy or inconsistency is so obvious and is of a considerable dimension that it adds to our doubts regarding the correctness of the prosecution version. According to the medical evidence, there were three entrance wounds, two on the left side of the chest and one on the right side and one exit wound on the right side of the back at the level of the 11th rib. It was found by the doctor that the wounds were lacerated and two entrance wounds of considerable size that is 2" x 2-1/2" x 4" and 2" x l-1/2" x 2". 25 pellets, three wads, and one shell of cartridge were also removed from the body of the deceased. In his statement dated 24-11-70, P. W. 6 Dr. A. R. Das had stated that all the three individual shots must have been fired from a distance of about six feet, and when further cross-examined, he said that the range may be between four feet to eight feet. When examined in this Court, he clearly stated that two shots must have been fired from a distance of about three feet and one from a still closer distance. Glaister in his book of Medical Jurisprudence and Toxicology (Eleventh Edition) says at page 244 : "when the gun has been fired at from 1 to 3 feet from the body, a more or less irregularly circular wound about 1 " to 2" inches in diameter will be produced. " Of course there was no blackening, no charring and no tatooing on any of the four wounds found on the body of the deceased. Yet in all probability the shots were fired at the deceased from a very close range say about three feet. P. W. 1 Binjaram has however in his statement at the trial stated that the first fire was made from 3 to 4 paces which comes to about ten feet. It appears that he tried to reduce the distance in his statement before this Court and has stated that Kashiram's muzzle was at a distance of 3 to 4 feet from Bhajanlal when he fired at Bhajanlal and Mohanlal fired from a distance of 5 to 6 feet when he made the first fire and from a distance of 2 to 3 feet when he made the third fire. He has also admitted that he had pointed out the place to the Station House Officer at the site from where Mohanlal had made the first fire and from the statement of the Station House Officer Shri Bhanwarlal P. W. 5 it transpires the place from where Mohanlal was stated to have fired by Binjaram at the time of the site inspection was at a distance of about 25 feet from the place where the dead body was lying. It is not the prosecution case that after having received the gun-shots the deceased was able to move but it is said that he fell down immediately. Here it may also be relevant to point out that Binjaram is neither illiterate nor semi-literate but is a graduate with a mature understanding and if the medical evidence is correct, as we think it is, there is inconsistency between the direct evidence and the medico-legal evidence regarding the distance from which the gun-shots may have been fired at the deceased. This factor, by itself, would not have very much weighed with us so as to discard the testimony of the eye-witnesses. But taken along with the other circumstances which we have pointed out above, this factor also has tilted the scales against the prosecution. The lower court has no doubt taken into consideration the circumstance of absconsion of the accused against them. In the first place, we must say that no satisfactory evidence of absconsion of the accused has been placed on the record. All that has been stated by the investigating officer in this connection is that the accused were not available in their 'dhanies' when he went to apprehend them. It appears that the accused have some land in Punjab also and the mere fact that they were not available in their 'dhanies' is not sufficient to come to the conclusion that they were absconding. Then, no question has been put to any of the accused that they had been absconding to enable them to give an explanation in respect of it. And above all, abscondence by itself cannot create strong evidence of guilt against an accused. It can only be used as a corroborative piece of evidence to lend support to the belief of the court in the guilt of the accused. After a careful examination of the record, we have come to the conclusion that the evidence of the two alleged eye-witnesses is not forthright and at any rate not sufficient to bring conviction to our minds that they are wholly truthful. The corroborative evidence of Sohanlal regarding the presence of the alleged eye-witnesses at the site is also not above board. Independent evidence or any other circumstantial evidence has not been put on the record with the result that a doubt is left in our minds regarding the guilt of the accused and we find ourselves unable to record a positive finding that the charge is proved against both the accused beyond reasonable doubt. We are therefore constrained to give benefit of doubt to the accused. The result is that we allow this appeal, set aside the convictions and sentences passed against the accused appellants and acquit them. They shall be released forthwith if not required in connection with any other case. Learned counsel for the State prays for certifying the case to be a fit one for appeal to the Supreme Court. The decision of the case turns upon pure appreciation of evidence. We, therefore, do not think it a fit case for grant of a certificate. The prayer is disallowed. . ;