S. K. MAL LODHA, J. - (1.) THIS appeal has been filed by Balvendra Singh, against the judgment dated 3rd July, 1976, passed by the Sessions Judge, Ganga-nager in sessions case No. 152/75. In the sessions case aforesaid, the appellant was prosecuted in respect of offences under section 302 I. P. C. and sections 25 and 27 of the Arms Act. The Sessions Judge convicted the appellant for the aforesaid offences and sentenced him to imprisonment for life under section 302 I. P. C, and to rigorous imprisonment for six months under section 25 of the Arms Act as well as under Section 27 of the Arms Act. After the conclusion of the arguments in the appeal, we passed the order dated 22nd November, 1982 whereby the appeal was allowed in part. The conviction of the appellant under section 302 I. P. C. and section 27 of the Arms Act wag set aside and consequently the sentence awarded to the appellant on the aforesaid two counts were also set aside. The conviction of the appellant under section 25 of the Arms Act and the sentence awarded on this count was, however, maintained. Since the appellant had already undergone the sentence of rigorous imprisonment of six months, it was directed that he shall be released forthwith, if not required in connection with any other case. The directions given by the Sessions Judge relating to the drum, pistol and live cartridge were maintained. In the order aforesaid, it was stated that the reasons in support of the order shall be recorded later on. The reasons for the aforesaid order are being set out as under:
(2.) THE prosecution of the appellant in the sessions case aforesaid relates to an incident which is alleged to have taken place in the night intervening January 6 and 7, 1975 in the field of Laxmansingh (P. W. 9) in chak 22f, Tehsil, Karanpur. In the said incident, one Balbirsingh (deceased) sustained fire arm injuries as a result of which he died. THE first information report (Ex. p. 1) with regard to the aforesaid incident was lodged by Kundansingh (P. W. 1), the brother of the deceased, at Police station, Kesrisinghpur on 7th January, 1975 at 12. 30 p. m. In the said report it was stated that 2-3 days back the appellant and Darshan (P. W. 3) had stolen a drum of Ramlal of Phusewala and that Ramlal had come to know about it and that the appellant had a suspicion that the information about this was given to Ramlal by the deceased. In the said report it was further stated that last evening the appellant had asked Kukoo (P. W. 10) and the deceased Balbir to accompany him for having liquor. Kukoo did not go with the appellant but deceased Balbirsingh went with him. In the morning at about 9 a. m. Mukhtyarsingh (P. W. 8) son of Mahanga Singh informed him that Balbirsingh had been killed in the night by the appellant by firing a shot with a pistol and that the dead body was lying in the field of Laxman Singh. THEreupon the informant alongwith Mangal Singh (PW 2) Sarpanch Indersingh (P. W. 7) etc. went to Chak 22 F and found that Balbirsingh was lying on his face with a wound of fire arm injury on his back and he was dead and that the drum was lying nearby On the basis of the aforesaid report, a case under section 302 I. P. C. was registered and Narainsingh (P. W. 14), A. S. I. Incharge of police station, Kesrisinghpur proceeded to the scene of occurrence. After reaching the scene of occurrence, Narainsingh prepared the memo (Ex. P. 9) about the condition of the dead body, inquest report (Ex. P. 10), site plan (Ex. P. 11) memo of site inspection (Ex. P. 11/a ). Narain Singh also recovered and empty cartridge case (Article 8) from near the dead body vide seizure memo (Ex. P. 12) and also collected blood stained earth and ordinary earth from the scene vide seizure memo (Ex. P. 13) THE shoes, turban and 'khes' (cotton sheet) of the deceased were seized vide seizure memo (Ex. P. 14) and the drum which was lying on the scene was seized vide seizure memo (Ex. P. 15 ). THE post mortem examination of the dead body was conducted at the scene of the inci-dent by Dr. Ramlal (P. W. 15), who prepared the post mortem report (Ex. P. 19 ). During the course of post mortem examination of the dead body of the deceased, Dr. Ramlal recovered two pellets (shots) which were duly sealed by him and sent to the S. H. O. Police Station Kesrisinghpur, vide letter (Ex. P. 20 ). After the post mortem examination, the clothes found on the person of the deceased were seized vide seizure mimo (Ex. P. 17 ). THE appellant was arrested on 9th Jan. 1975 vide memo of arrest (Ex. P. 18 ). After the arrest, the appellant, on January 13, 1975, gave information vide memo of information (Ex. P. 3) about his having concealed a country made pistol loaded with a 12 bore cartridge in his house in village Kaminpura and on the basis of the aforesaid information a country made pistol alongwith a cartridge was recovered from the house of the appellant vide seizure memo (Ex. P. 4 ). After completing the investigation and after obtaining the sanction (Ex. p. 5) of the District Magistrate for the prosecution of the appellant in respect of offence under section 3/25 (1) (a) of the Arms Act, the police filed a challan against the appellant in the Court of Judicial Magistrate, Karanpur, who committed the appellant for trial to the Court of Sessions on charges under section 302 I. P. C. and sections 25 and 27 of the Arms Act. The appellant pleaded not guilty and denied the recovery of the pistol at his instance. The prosecution in support of its case examined 16 witnesses out of whom Darshan Singh (P. W. 3), Labhsingh (P. W. 4) and Baisakha Singh (PW 5) are claimed to be the eye witnesses of the alleged occurrence Nasibkaur (PW 6) and Kaku-Singh (P. W. 10) have come forward to prove that the deceased was last seen alive in the company of the appellant Dr. Ramlal (PW. 15) has proved the post mortem report and the other witnesses were examined to prove the F. I. R. , and the other documents. The Sessions Judge, in his judgment dated 3rd July, 1976, did not accept the evidence adduced by the prosecution with regard to the motive for the alleged offence. The Sessions Judge, was however, of the view that the failure on the part of the prosecution to prove the motive is of no consequence in view of the direct evidence adduced by the prosecution. The Sessions Judge accepted, as trustworthy, the testimony of the three eye witnesses namely Dar-shansingh, Labh Singh and Baisakha Singh examined by the prosecution. The Sessions Judge has also accepted the evidence of Nasib Kaur and Kakusingh with regard to the deceased having been last seen alive in the company of the appellant. The Sessions Judge has also accepted the evidence of Mukhtyar Singh with regard to the extra judicial confession said to have been made by the appellant to him. The Sessions Judge also accepted the evidence adduced by the prosecution with regard to recovery of the empty cartridge case from the scene of occurrence and the pistol and the cartridge from the house of the appellant and the opinion of the ballistic expert that the empty cartridge case that was recovered from the scene of occurrence had been fired from the pistol that was recovered from the house of the appellant at the instance of the appellant. In view of the evidence aforesaid, the Sessions Judge held that the offences under section 302 IPC and sections 25 and 27 of the Arms Act were proved beyond reasonable doubt against the appellant and the Sessions Judge awarded the sentences referred to above. Being aggrieved by the aforesaid judgment of the Sessions Judge, the appellant has filed this appeal. Shri M. L. Garg, learned counsel for the appellant has assailed the findings recorded by the Sessions Judge. The learned Public Prosecutor on the other hand has supported the said findings. The evidence that has been adduced by the prosecution to prove its case falls broadly in the following categories: (i) evidence of eye witnesses of the occurrence (Darshan Singh, PW. 3, Labhsingh PW. 4 and Baishakha Singh P. W. 5), (ii) evidence of the witnesses who have claimed to have seen the deceased in the company of appellant in the evening of January 6, 1975 (Nasibkaur P. W. 6 and Kakusingh PW. 10), (iii) extra-judicial confession of the appellant (Mukhtyarsingh P. W. 8), (iv) medical evidence and (v) expert evidence about the empty cartridge case which was recovered from the site having been fired from the country made pistol which was recovered from the house of the appellant at the instance of the appellant.
(3.) WE may first take up the evidence of the eye-witnesses of the occurrence. All the three eye witnesses viz. , Darshansingh (P. W. 3), Labhsingh (P. W. 4) and Baisakha Singh (P. W. 5), have deposed that 10-15 days before the occurrence, they alongwith the appellant, had gone to the field of Ramlal, in village Phusewala and had committed the theft of a drum filled with 'lahan' and that 16 bottles of liquor were extracted and four bottles came to the share of each of them which was consumed by them. On the day of occurrence the appellant approached the witnesses in the evening and asked them to accompany him for the purpose of removing the drum and concealing it elsewhere or otherwise Ramlal would get him arrested. Thereupon the said witnesses alongwith the appellant and the deceased went in the night at about 9 p. m. to the field of Laxmansingh in Chak 22 F and they took out the drum and concealed it in the cotton sticks in the field of Laxman Singh. The said witnesses have further stated that while they were returning, the appellant fired the pistol at the deceased from behind because he suspected that he could give the information about the theft of the drum to Ramlal and that the shot from the pistol hit the deceased on his back and he fell down on his face. After receiving the fire arm injury, the deceased had told the appellant that he had deceived him. The witnesses have further stated that the appellant re-loaded the pistol and told the witnesses that if they would inform anybody about this incident, he would kill them also and that on account of fear, they did not tell anybody about the incident in the night and came back to their houses and slept. While dealing with the testimony of these witnesses it has to be borne in mind that the Investigating Officer, Goru Dan (P. W. 13), has stated that the statement of all the three witnesses were recorded before the Magistrate under section 164 Cr. P. C. In respect of a witness whose statement has been recorded under section 164 Cr. P. C. the law is well settled that the evidence of such a witness must be approached with caution because such a witness feels tied to the previous statement given on oath and has but a theoretical freedom to depart from the earlier version and a prosecution for perjury could be the price for that freedom, (see Balakram v. State of U. P. , (1 ). It is pertinent to note that the names of these witnesses are not mentioned in the F. I. R. Labhsingh (P. W. 4) and Baisakhasingh (P. W. 5) have both stated that they had met Kundansingh (P. W. 1) and told him about the whole incident and were present with him at the time when Mukhtyarsingh (P. W. 8) came and told Kundansingh about the murder of the deceased. They have also stated that they had accompanied Kundansingh to the scene of occurrence and had also accompanied him to the police station. Kundan Singh (P. W. 1) has also stated that Labhsingh and Baisakha Singh had gone with him to the scene of occurrence from the village and they had informed him about the incident while they were going to the scene of occurrence. Similarly Mukhtyar Singh (P. W. 8) has stated that he had informed Kundansingh that Darshansingh, Labhsingh and Baisakha Singh were present at the time of the occurrence and that thereupon those persons were called and Labhsingh and Baisakhasingh came and told everything and that they also went to the field of Laxmansingh where the dead body was lying and had also gone to the police station. Laxman Singh (P. W. 9) has also deposed that Labhsingh and Baisakha Singh had come to his field alongwith the other persons who had come to look for the dead body of the deceased. Apart from the fact that the names of Darshansingh, Labhsingh and Baisakhasingh do not find place in the F. I. R. , the case set up in the F. I. R is also different from that part forward by the witnesses. In the F. I. R. , it was stated that Kakusingh and the deceased had been asked by the appellant to accompany him for having a drink and that Kakusingh refused but the deceased accompanied him. It is inconceivable that if Darshansingh, Labhsingh and Baisakha Singh were the eye witnesses of the occurrence and if they had met the informant before the lodging of the F. I. R. , their names would not be mentioned in the F. I. R. From a perusal of the F. I. R. only two inferences are possible, i. e (i) Darshan Singh, Labh Singh and Baisakha Singh did not meet Kundansirgh before he lodged the F. I. R. , or (ii) Darshan Singh, Labh-Singh and Baisakha Singh are not the eye witnesses of the occurrence and are falsely claiming to be eye witnesses. The first inference cannot be drawn in view of the evidence of Kundansingh, Labhsingh, Baisakhasingh, Mukhtyarsingh and Laxmansingh. Therefore, the only possible inference is that of Darshan Singh. Labhsingh and Baisakha Singh are not the eye witnesses of the occurrence and have falsely claimed to be the eye witnesses of the occurrence. ;