KHEM CHAND SHARMA, J. - (1.) THIS appeal under Section 374 Cr. P. C. arises out of the judgment and order dated 1. 9. 1998 passed by the learned Sessions Judge, Alwar, convicting the appellant under Section 302 IPC and sentencing him to undergo imprisonment for life and a fine of Rs. one thousand, in default of payment of fine, to further undergo simple imprisonment for six months.
(2.) SUCCINCTLY stated the facts of the case are that on 1. 1. 1995 at 8. 15 AM, PW 10 Ramesh Chand Jat lodged a written report, Ex. P. 14 at Police Station, M. I. A. , Alwar, alleging therein that on 30. 12. 1994 at about 7. 30 PM appellant Sher Singh and one more person switched off the engine installed at the tube-well of Girraj. It was alleged that when Girraj left the field and was on way to his house, appellant Sher Singh and one more person made Girraj to stop in the field of Pooran and made an assault on him with Farshi and Sword. Girraj fled away and reached his house. Thereafter in the morning of 31. 12. 1994, five persons of the village collected with a view to get the compromise done between the parties. At about 7. 00 AM, Pooran, younger brother of informant Ramesh was asked to go and make enquiries from Khubaram as regards irrigation of the fields. Pooran, in turn proceeded towards the house of Khubaram and soon he reached infront of the room of Khubaram, accused appellant Sher Singh and co-accused Banwari, Rajjan, Girraj and Tejram came there with an intention to kill Pooran. Appellant Sher Singh fired at Pooran, the bullet of which hit on his chest. The cires of Pooran attracted the attention of the informant, who reached the place of incident. Other persons of the village had also reached there. According to the report, co-accused Banwari had a gun, while others had lathies and farshies. On seeing the informant and the villagers, the accused ran away. Injured Pooran was removed to the hospital at Alwar in a Tractor. On the basis of above written report, police registered a case for offence under Section 147, 148, 149 and 307 IPC vide FIR, Ex. P. 16 and proceeded with investigation. The SHO of the concerned Police Station reached the Hospital at Alwar, where he found that Pooran has succumbed to his injuries. In the course of investigation, the Investigation Officer prepared the inquest report, Ex. P. 1 of the dead body and got conducted autopsy on the dead body and collected the post mortem report Ex. P. 10. In the opinion of PW 7 Dr. Raj Kumar who conducted autopsy on the dead body, the cause of deaths was injury to vital organs lungs and aorta haemorrhage and shock as a result of fire arm, antimortem in nature. He found following injuries on the dead body: 1. Clotted blood and palets present in muscles of chest and on both side chest and abdomen, 2. Multiple small wounds present on both lungs upper and medial part clotted with blood mixed fluid present in chest cavity more on left side, and 3. Multiple small wound present on upper part of aorta. On the same day of incident, the Investigating Officer visited the site and prepared site plan, Ex. P. 7. Accused appellant Sher Singh was arrested on the same day vide arrest memo Ex. P. 4. Appellant furnished information (Ex. P. 17) under Sec. 27 of the Evidence Act as regards recovery of Deshi Katta, one cartridge of 12 bore and one empty cartridge of 12 bore. Pursuant to this information, the police recovered the above articles vide memo Ex. P. 8 and prepared site plan, Ex. P. 9 of the place of recovery. The cloths worn by the deceased at the time of incident and the pallets taken out by the doctor were seized vide memo Ex. P. 19. The police then sent the Baniyan, Kameej, Deshi Katta 12 bore, live cartridge 12 bore and empty cartridge 12 bore to the Forensic Science Laboratory. The report of Forensic Science Laboratory is Ex. CW. 1. Having completed investigation, the police submitted charge sheet against the appellant and other co-accused persons in the court of Additional Chief Judicial Magistrate No. 1, Alwar. The learned Magistrate having found the offence exclusively triable by the court of Sessions, committed the case to the court of Sessions. The learned Sessions Judge, on the basis of evidence and material collected during investigation and after hearing counsel for the parties, framed charges against the accused appellant under Sections 302 and 148 IPC and Sec. 3/25 of the Arms Act. Likewise, coaccused were also charged under Sections 148 and 302 read with Sec. 149 IPC. All the accused denied the charges and claimed to be tried.
(3.) IN the course of trial, the prosecution examined as many as 12 witnesses and got exhibited number of documents. The statements of CW1 Prem Sagar Manocha and CW2 Shanti Lal were also recorded. Thereafter the accused were examined under Section 313 Cr. P. C. IN his explanation, accused appellant Sher Singh stated that it was deceased Pooran himself who had come to his house in his absence with a view to kill him. His brother, brother's wife and his mother were present there. He explained that his brother tried to snatch the Katta from Pooran and in the course of entanglement, gun fired. IN defence, the accused examined DW 1 Charan Singh, DW 2 Smt. Kallo, DW 3 Mst. Channo, DW 4 Net Ram and DW 5 Smt. Laxmi Devi. It may be stated that at the fake end of trial, co-accused Banwari passed away and therefore, the learned trial Judge dropped the proceedings as against Banwari. At the conclusion of trial, the learned Sessions Judge did not find the charges established against the co-accused and accordingly acquitted them of the charges. The learned Sessions Judge concluded that the prosecution has not been able to establish charges against appellant Sher Singh under Sections 148 IPC and Sec. 3/25 of the Arms Act and accordingly acquitted him of these charges. However, the learned Sessions Judge found the accused appellant guilty of having committed murder of Pooran and accordingly convicted and sentenced him in the manner stated hereinabove. Hence the present appeal by appellant Sher Singh against his conviction and sentence. ;