ARORA, J. - (1.) THESE two appeals arise of the judgment dated March 28, 1985, passed by the Additional Sessions Judge No. 1, Hanumangarh, by which the learned Additional Sessions Judge convicted and sentenced accused Lakhia for the offences under Sections 302 and 307 I. P. C. and Section 27 of the Indian Arms Act. He, also, convicted and sentenced accused Mastan Ram for the offence under Section 302 I. P. C. and Section 27 of the Indian Arms Act.
(2.) THE incident, which led to the prosecution of the present two accused appellants, took place on August 11, 1982, at 6. 30 p. m. in village Ramsara, when Banta Singh was murdered by these two accused, and Thana Singh received fire-arm injury on the chest. In the evening of August 11, 1982, Gurjant Singh, Banta Singh, Darshan Singh and Thana Singh were returning from Hanumangarh to their village on the tractor. In the way, Pritam Singh accompanied them on the tractor. At about 6. 30 p. m. , when they reached over the bridge of the canal near village Ramsara, accused Lakhi and Mastan Ram came from the village side on the bridge. At that time, they were armed with guns. THEy came near the tractor and abused Banta Singh and said, In the meanwhile, Thana Singh came down from the tractor and tried to pacify Lakhi, upon which Lakhi took out the pistol from the fold (Dubb) of his Tehmat and fired towards Thana Singh. THE fire hit on the chest near right nipple of Thana Singh. After receiving this injury, Thana Singh fell down and Banta Singh, also, came-down from the tractor and ran towards the village. Lakhi and Mastan Ram followed him. Darshan Singh and Gurjant Singh, also, ran behind them. Nokha Singh, on hearing the alarm, also, came there. Lakhi and Mastan Ram gave 'lalkara' to Banta Singh. When Banta Singh reached near the house of Man Das Veragi, accused Lakhi fired his pistol on Banta Singh from behind. When Banta Singh turned towards him, Mastan Ram, also, took out his pistol from his dubb and fired at Banta Singh, which hit him on his stomach. On receiving these injuries, Banta Singh fell down on the ground and both the accused ran away. THEreafter, Jagjit Singh, also, came there. THE report of this incident was lodged by Gurjant Singh at police Station, Hanumangarh Town, on August 11,1982, at 9. 15 p. m. THE police, after necessary investigation, presented the challan against both the accused. Both the accused-appellants were tried by the learned Additional Sessions Judge No. 1 , Hanumangarh. Accused Lakhi was tried for the offences under Sections 302 and 307 I. P. C. and Section 27 of the Indian Arms Act while accused-appellant Mastan Ram was tried for the offence under Section 302 I. P. C. and Section 27 of the Indian Arms Act. THE learned Additional Sessions Judge No. 1, Hanumangarh, after trial, by his judgment dated March 28, 1985, convicted accused-appellant Lakhi for the offences under Sections 302 and 307 I. P. C. and Section 27 of the Indian Arms Act and accused-appellant Mastan Ram was convicted under Section 302 I. P. C. and Section 27 of the Indian Arms Act. Accused-appellant Lakhi was sentenced to undergo imprisonment for life and a fine of Rs. 500/- and in default of payment of fine further to undergo six months' rigorous imprisonment for the offence under Section 302 I. P. C. and seven years' rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine further to undergo six months' rigorous imprisonment for the offence under Section 307 I. P. C. and one year's rigorous imprisonment for the offence under Section 27 of the Indian Arms Act. All these three sentences were directed to run concurrently. Accused-appellant Mastan Ram was sentenced to undergo imprisonment for life and a fine of Rs. 500/- and in default of payment of fine further to undergo six month's regorous imprisonment for the offence under Section 302 I. P. C. and one year's rigorous imprisonment for the offence under Section 27 of the. Indian Arms Act. It is against this judgement dated March 28, 1985, convicting and sentencing the accused-appellants that the appellants have preferred these two appeals. Accused-appellant Mastan Ram preferred D. B. Criminal Jail Appeal No. 124 of 1985 through jail and Shri M. L. Garg was appointed as the Amicus Curiae. Lakhi alias Lakhvinder Singh filed D. B. Criminal Appeal No. 164 of 1985. We have heard learned counsel for the parties and gone through the record of the case. It is contended by the learned counsel for the appellants that the incident did not take place at 6. 30 p. m. , but actually it took place at about 8. 00 p. m. near the house of Man Das Veragi and at that time it was dark and, therefore, the assailants could not be identified and it is only on account of darkness after the Sun-set that the time of the incident has been advanced by the prosecution. It is, also, contended by the learned counsel for the appellants that though the incident took place in the village, but no independent witness of the locality has been produced by the prosecution and only the interested witnesses have been produced. It is, also, contended by the learned counsel for the appellant that so far as the incident near the bridge is concerned, it did not take place as no blood-stains were found at the place of the occurrence. He has, also, submitted that no blood-stains were found on the clothes of PW 3 Gurjant Singh and PW 6 Nopa Singh the alleged eye-witnesses though these witnesses handled the injured Thana Singh (PW 2) and, therefore, the presence of these two witnesses at the scene of the occurrence becomes doubtful. It is further contended by the learned counsel for the appellants that the version given by the eye-witnesses stands falsified from the injuries received on the person of Banta Singh. The next submission, made by the learned counsel for the appellants, is that a Gandasa was recovered from near the deadbody of deceased Banta Singh, while the eye-witnesses denied the fact of carrying a Gandasa by him. Lastly, it is argued by the learned counsel for the appellants that Mastan Ram was arrested on August 22, 1982, but the identification parade was held by the Munsif and Judicial Magistrate, Hanumangarh, as late as on October-5, 1982, which, also, creates a doubt on the prosecution case and the possibility of showing the accused to the injured cannot be ruled out. The learned counsel for the appellants, on the basis of these arguments, submitted that the appellants deserve to be acquitted. The learned Public Prosecutor , on the other hand, has supported the judgment, passed by the learned lower Court and submitted that the accused-appellants have rightly been convicted and sentenced by the learned lower Court and the prosecution proved the case against the accused-appellants beyond the reasonable manner of doubt. Before considering the arguments, advanced by the learned counsel for the parties, we would like to consider the nature of evidence, produced by the prosecution. The nature of evidence, produced by the prosecution, consists of the evidence of three eye-witnesses viz. , PW 2 Thana Singh, who himself received fire-arm injury during the first incident, PW 3 Gurjant Singh and PW 6 Nopa Singh. This evidence of the eye-witnesses is sought to be corroborated by the evidence of PW 1 Mr. Hari Singh Pooniya, the Munsif and Judicial Magistrate, Hanumangarh, who conducted the identification parade of accused Mastan Ram in the Sub-Jail, Hanumangarh, on October 5, 1982, and prepared the identification memo Ex. P-4 and of PW 4 Dr. Narendra Godara, who conducted the post-mortem examination on the deadbody of deceased Banta Singh and examined the injuries on the person of PW 2 Thana Singh. PW 3 Dr. K. N Markenday is the Radiologist, who took the X-ray of PW 2 Thana Singh and found radio opec metallic shadow on the lumber vertebrae region of injured Thana Singh. PW 7 is Ummaid Singh, Station House Officer, who conducted the investigation and presented the challan. PW 8 Prithvi Raj is the Head Constable and Incharge of Malkhana at Police Station, in whose presence the Malkhana Articles of this case remained intact. PW 9 Lal Singh is the Police Constable, who took the sealed packets for F. S. L. examination to the State Forensic Science Laboratory, Jaipur. PW 10 Harish Chandra is the Assistant Sub-Inspector, who conducted the part of the investigation regarding the recoveries of pistols and guns from the accused-appellants and who, after recoveries, prepared the recoveries memos Ex. P-38 to Ex-P-49. The learned Additional Sessions Judge did not place much reliance over the statement of PW 6 Nopa Singh and came to the conclusion that he is not a truthful witness and no reliance can be placed upon his evidence. The learned Additional Sessions Judge, also, did not place reliance over the recoveries of the pistols and guns as they were not connected with the crime. He, therefore, place reliance on the statement of PW 2 Thana Singh and PW 3 Gurjant Singh-the two eye- witnesses of the occurrence and convicted and sentenced the accused-appellants. The case of the prosecution, thus, rests upon the evidence of two eye witnesses, namely, PW 2 Thana Singh-the injured witness and PW 3 Gurjant Singh. So far as the recoveries are concerned, no empty was recovered from the scene of the occurrence and, therefore, these arms cannot be connected with any empty, but it has been proved beyond reasonable doubt that these arms were serviceable and the pistols, recovered from both the accused-appellants were used and, therefore, the learned lower court was justified in not placing reliance over the recoveries as these arms were not connected with any empty. We have gone through the statement of PW 6 Nopa Singh, also. He is a chance witness. He is not the resident of village Ramsara, where the incident took place. According to him, he came to the village in order to meet his niece Mst. Rani, who was married to Gurmeet Singh. Mst. Rani is the daughter of Najar Singh, the brother of this witness with whom this witness is not having cordial relations and litigations are pending between them and, therefore, his going to meet his niece Mst. Rani in the village and seeing the occurrence raises a suspicion. Though according to him, he was present at the hospital when the police came there and recorded the statements of PW 2 Thana Singh and PW 3 Gurjant Singh, but his statement was not recorded at that time and was recorded on the next date. That, also, creates a doubt. He, also, tried to mould his statement in accordance with the medical evidence. He is, also, a close relative of PW 3 Gurjant Singh. The learned lower Court has properly considered the evidence of this witness and has rightly come to the conclusion that the evidence of this witness does not inspire confidence and this witness has rightly been disbelieved by the Court below. We do not see any infirmity in the appreciation of evidence made by the learned trial Court with respect to this witness. The first contention, raised by the learned counsel for the appellants is that the prosecution has advanced the time of the incident. In order to support this contention, the learned counsel for the appellants have submitted that if the incident would have taken place at about 6. 00 or 6. 30 p. m. then the injured Thana Singh should have been brought to the Government Hospital at Hanumangarh before 8. 00 p. m. at any case because the distance between the place of the occurrence and the hospital is only nine kilometres and the complainant party had, with them, a tractor available. It has come in the evidence of the prosecution that the injured Thana Singh (PW 2) was brought to the hospital on a jeep, which came there sometime after the incident was over, One of the witnesses, namely, PW 2 Thana Singh had received injuries while Banta Singh succumbed to the injuries. They first made arrangement to take care of the deadbody of Banta Singh and left one Jagdish there and thereafter they waited for some conveyance and as soon as one jeep came there, they brought the injured Thana Singh to the hospital. In all, this has taken about two hours and this period of two hours in taking the injured to the hospital cannot be meticulously considered and it cannot be said that the prosecution witnesses had taken much time in taking the injured Thana Singh (PW 2) to the hospital. As soon as the jeep was available, the injured was brought to the hospital. A careful reading of the evidence, produced by the prosecution, clearly shows that the incident took place at the very time it was stated and these accused had rightly been identified by these witnesses.
(3.) THE next submission, made by the learned counsel for the appellants is that no independent witness of the locality has been produced. It has not come in the evidence that some witnesses were present, who came there when the incident took place and who had seen the occurrence, but have not been produced. Rather, on the contrary, PW 3 Gurjant Singh has specifically stated that at the time when the incident took place, no inmates from the houses nearby came out from the houses and when no person came out of the house and had not seen the occurrence then the non-production of the inmates of the nearby houses does not adversely affect the prosecution case in any way. The next contention, raised by the learned counsel for the appellants is that no incident took place near the bridge and it was only one incident which took place near the house of Man Das Veragi in the dark night. The main argument of the learned counsel for the appellants, on this ground, is that no blood was found at this place though according to the prosecution, PW 2 Thana Singh received injury by bullet and he fell down on the ground and according to him there was profuse bleeding, which covered an area of 1 1/2 Baalist (13 1/2" ). Blood smeared soil was taken, but the report of the F. S. L. was negative with respect to the blood. It is, no doubt, true that as per the report of the State Forensic Science Laboratory, Jaipur, no blood was found at the place of the occurrence, but merely because no blood was found at the place of the incident, it cannot be said that the incident did not take place at that place when the injured PW 2 Thana Singh-the eye witness of the occurrence has specifically stated that he received injury at that very place when he tried to pacify accused Lakhi. He has specifically stated that he, alongwith Banta Singh. Gurjant Singh and Darshan Singh, was going on the tractor from Hanumangarh and they were proceeding towards their village Ramsara and when they reached near the bridge and the tractor was on the assending side of the bridge, the accused, who had hidden themselves on the other side of the bridge, came there and challenged Banta Singh. When he tried to pacify accused Lakhi, he inflicted injury by pistol, which hit on his chest near the right nipple. On receiving this injury, he fell down on the ground. He has, also, stated that the accused Lakhi, after saying that he is favouring Banta Singh and, therefore, he should kill him rqw curkflga dk fgek;rh gs blfy, ifgys rsjk dkavk fudkyrk gwwa bruk dgdj mlus esjs ij filrksy dk Qk;j fd;ka** He has further stated that Banta Singh, thereafter, ran away and these two accused-appellants followed him. PW 3 Gurjant Singh and Darshan Singh, also, followed them. A lengthy cross-examination has been conducted with this witness by the defence, but nothing could be elicited, which could prove that this witness was not present there. Merely non presence of the blood at the place of the occurrence cannot falsify the incident, which took place and which stands proved from the evidence of PW 2 Thana Singh and PW 3 Gurjant Singh. Pw 3 Gurjant Singh has, also,' stated that at about 6. 30 p. m. , he, Darshan Singh, Banta Singh and Thana Singh were coming to their village Ramsara from Hanumangarh on the tractor. He was driving the tractor. When they reached near the canal bridge of village Ramsara, and the tractor was proceeding towards the bridge, which is on a higher level, accused Lakhi and Mastan Ram appeared on the other side of the bridge who were carrying guns on their shoulders. They came near the tractor, stopped the tractor and thereafter accused Lakhi gave a 'lalkara' to Banta Singh and exclaimed, "be aware". Thana Singh, after coming down from the tractor, tried to pacify accused Lakhi, whereupon accused Lakhi took out the pistol from the fold of his Chaddar (dubb) and said that he would first kill him and thereafter he fired upon Thana Singh, which hit near the right nipple of his chest and he fell down near the tractor. From the statement of these two witnesses, namely, Pw 2 Thana Singh and Pw 3 Gurjant Singh, it is, therefore, clear that the incident took place near the canal bridge of village Ramsara, where Pw 2 Thana Singh received fire-arm injury. P. W. 2 Thana Singh has further stated that thereafter Banta Singh left the tractor and ran towards the village. These two accused Lakhi and Mastan Ram followed him. He and Darshan Singh, also, followed them and when Banta Singh reached near the house of Man Das Veragi, Lakhi inflicted injury by pistol to Banta Singh, which hit near his shoulder. When, after receiving the injuries, Banta Singh tried to see backwards, Mastan Ram, also, took out the pistol from the fold of his chaddar and inflicted injury to Banta Singh, which hit in his stomach. After receiving both these injuries, he fell down and succumbed to the injuries instantaneously. The accused, after inflicting injuries, left the place of the incident. A lengthy-cross-examination has been conducted from this witness, but nothing could be elicited in the cross-examination from which it could be inferred that this witness was not present at the scene of the occurrence and had not witnessed the occurrence. The conduct of this witness is most natural and he was coming alongwith deceased and Thana Singh on the tractor. He himself was driving the tractor. Merely because he was not having the driving licence, it cannot be said that he does not know driving and was not driving the tractor at that time. His presence at the scene of the occurrence cannot be doubted merely on the ground that though he handled the injured Thana Singh but his clothes were not found stained with blood. Merely because no blood was found either on the person or on the clothes of this witness though they handled the injured Thana Singh and put him in the jeep and brought him to the hospital, their evidence cannot be rejected if the evidence of this witness otherwise inspires confidence. It cannot be said that in all probabilities, the clothes of this witness or his person should have been stained with blood. It may be just possible that they might have handled the injured Thana Singh in such a style that they could not have received any blood stains. The absence of proof of blood stains cannot disprove the prosecution case and cannot make the witness unreliable Sec (1 ). Somappa Vamanappa Madar Shankarappa Ravanappa Kaddi vs. the State of Mysore. ;