KALYAN DUTTA SHARMA, C.J. - (1.) THIS is a jai lappeal preferred by Jai Ram against the judgment of the learned Sessions Judge, Jodhpur, dated October 3, 1977, by which the appellant was convicted under Section 30 read with Section 34 Sections 307 and 460, IPC and Section 27 of the Arms Act and sentenced to undergo imprisonment for life on the first count for each murder and on the second count to suffer rigorous imprisonment for ten years, on the third to undergo rigorous imprisonment for ten years and on the fourth count to suffer rigorous imprisonment for one year.
(2.) THE incident that led to the prosecution of Jai Ram, appellant, may be, briefly, stated as follows: On the intervening night of 17th and 18th June, 1976, Prabhu Ram was sleeping in the verandah of his house along with his wife. The door of the gate of the verandah was closed but an aporture or a window therein was open and there was a light of a lantern in it. At about mid -night Prabhu Ram's wife Mst. Barju woke -up on hearing some sound produced by entrance of one person into the verandah through the aperture. She sat on the cot and saw in the light of the lantern a person striking a blow on the head of her husband Prabhu Ram with a sword. Soon thereafter she saw one shot being fired from a gun at her husband which had hit him. She identified the person having gun in his hand to be Jai Ram appellant. The other person, who had a sword in his hand, could not be identified by her. Upon seeing her husband being shot at and injured, she raised an outcry but Jai Ram and his companion threatened her with dire consequences if she did not keep quiet. While retiring from there, Jai Ram appellant fired two shots from his gun to kill Barju also. One of the shots hit her right band, as a result of which her hand was fractured. The other shot hit her right ear, as a consequence of which her ear was torn off and the backside thereof was injured. The cause of the incident was prior enmity and litigation between Prabhu Ram and the appellant. While running away from the scene or occurrence, Jai Ram openly declared that he would kill Laxman also and, in fact, he killed the latter. After committing both the murders Jai Ram and his companion came back to the verandah 'Gadal' of Prabhu Ram and picked -up the lantern, poured kerosene oil over the dead -body of Prabhu Ram and set fire to the corpse. Prabhu Ram's sister Mst. Meeran also was sleeping in the court yard at that time.
(3.) A first information report of this incident was lodged by Mst. Barju, wife of Prabhu Ram with Ranjeet Singh, Station House Officer, Khedapa at village Birsalu on June 18, 1976, where the Station House Officer had reached upon receiving an information about the murders from the Superintendent of Police Jodhpur The Station House Officer, Khedapa, sent the report to the police station, Khedapa for registration of a case under Sections 302, 307 and 326, IPC and Section 25 of the Arms Act and took -up usual investigation into the matter. The Station House Officer rushed to the Dhani of Prabhu Ram, deceased, and on reaching there inspected the site, prepared a site -inspection memo and a site -plan which are Exs P. 31 and P. 32 respectively. Then the Station House Officer inspected the dead body of Prabhu Ram and prepared a Panchnama of it which is Ex P 33. He took bloodstained earth from the Dhani of Prabhu Ram and saw blood -stains on the wall of the house. He took scrappings thereof also in his possession along with the cot and clothes of the deceased vide Ex. p. 34. All these articles were properly sealed in the presence of Motbirs. The Station House Officer then inspected the Dhani of Laxman deceased also and prepared a site -inspection memo and a site -plan which are Exs. P. 35 and P. 36 respectively. He inspected the dead body of Laxman and prepared an inquest report in the presence of Motbirs. He took into his possession Hood -stained turban and Dhoti of the deceased and sealed them properly. The Station House Officer searched the house of Jai Ram appellant also vide memo of search Ex. P. 38 and took licence of the gun into his possessions which was in the name of Jai Ram appellant. He arrested the appellant on June 25, 1976 and at the time of arrest recovered one 12 bore double barren gun together with 0 cartridges kept in the bandolier from the possession of the appellant. After his arrest, the appellant, while in police custody, gave the Station House Officer an information that he had kept one pant and a shirt in his house which he was wearing on his body and which bore stains of blood on them and which he gave to his wife for washing. He further informed the Station House Officer that he had thrown one empty cartridge case outside the Dhani of Laxman and put 5 empty cartridge cases in his hearth which he was prepared to point out to the police. The Station House Officer recorded the above information in a memo Ex. P. 47 and thereafter recovered one pant of military colour and one shirt from the house of the appellant on which stains of blood were visible despite the fact that the clothes were washed. This recovery was made at the instance of the appellant and inconsequence of his information. The wife of the appellant produced 5 empty cartridge cases having 5 brass heads over them before the Station House Officer as a consequence of the information supplied by the appellant. The Station House Officer took those 5 empty cartridge cases into his possession in the presence of Motbirs and sealed them property then and there. The Station House Officer recovered one empty cartridge case at the instance of the appellant and in consequence of his information from the stones which were lying outside the Dhani of Laxman, deceased. Prior to these recoveries the Station House Officer on June 19, 1976, had sent both the dead bodies of Prabhu Ram and Laxman to Mahatma Gandhi Hospital, Jodhpur, for performance of post -mortem examinations. Dr P. Dayal, Medical Jurist, performed post -mortem examination on the dead body of Laxman and noticed the following injuries: (1) incised wound 19 cm. x 1.5 cm. on the forehead extending from the left temporal region to right fronto parietal region. The left eye had collapsed. The wound was situated just below the left eye -brow and just above the right eye -brow. The frontal bone of both sides had been out. On the left side, the temporal bone had been cut and the right peristal had been cut. The left orbital plate had been cut. The membrances of the brain and the frontal lobe of brain were cut. There was sub -dural haeamatoma in both frontal and both temporal regions; (2) lacerated wound 2.5 cm. x 2 cm on the right lateral aspect of chest 7 cm. from the mid -line at the level of 9th rib which had been fractured and there was laceration of the right pleurse and the right lung which was collapsed. There was no tattooing around the wound. A wad was recovered from the lung and a few pellets. The wad and the pellets were preserved and sealed. On the basis of the post -mortem examination, Dr. P. Dayal opined that the cause of death of Laxman was come due to head injury. According to him, both the injuries were anti -mortem in nature and were individually sufficient in the ordinary course of nature to cause his death Injury No. 2 appeared to be a gun shot injury caused by a 12 bore gun. Injury No. 1 could be caused by a blow with a sword. On the same day he conducted an autopuy on the body of Prabhu Ram also and found the following injuries thereupon: (1) incised would 25 cm. x 2.9 cm. on the face of right side and another aspect just above the eyebrow The right eye had collapsed. There was cut in the frontal bone on both sides extending to the right temporal region, The memberance of the brain had been cut and both frontal lobes and the right temporal lobe had been cut. There was subdural heamatoma in the right tempo -parietal region. The brain matter had started liquifying The tip of the nose had also been cut and it measured 2.6 cm. x 2 cm; (2) lacerated wound 4 cm. circular on the laft lateral aspect of waist 16 cm. from the mid line. Loops of intestines were probruding through the wound. There was not tattooing around the wound. Pellets were recovered from the left border of the verticular column embedded in the muscle tissue, which showed laceration at the level of second and third lumber vertebrae. The small intestines had been perforated at places. The wad was recovered at the left border of second lumber vertebrae; (3) post mortem burns with charring of the skin over the whole of back except the scapular region were found. There was postmortem splitting of the skin with protrusion of the muscles and these areas measured 16 cm. x 3 cm. on the lateral aspect of the distal 1/3rd of right leg and 14 cm. x 8 cm with prolapse of gun in the perineum on left side and 17 cm. x 8 cm. on the posterior aspect of right thigh and postro -lateral aspect of right leg 18 cm. x 18 cm. on the posterior aspect of left 8 cm. x 1 cm. on the posterior aspect of left leg, middle one third. The skin had been separated from the right mandible region and the raw surface measured 7 cm. x 6 cm. and on the chest on right side and back of neck 9 cm. x 2 cm. and 7.5 cm. x 5 cm. in the right axillary region. The pelletes and the wad were preserved and sealed. About 150 c.c. liquified matter was present in the peritonal cavity. Injury No. 1 appeared to be the result of a blow with a sword and injury No. 2 was caused by a gun -shot from a 12 bore gun. Post -mortem burns were probably the result of the heat generated by burning of certain articles under the dead body, because ail these burns were situated on the posterior aspect. In the opinion of the Doctor the cause of death of Prabhu Ram was come due to head injury. The duration of the injuries found on the dead bodies of Laxman and Prabhu Ram was about 1 or 2 days prior to the post -mortem examinations. ;