BHATNAGAR, J. - (1.) THIS appeal is directed against the judgment passed by the Additional Sessions Judge, Hanumangarh dated June 14, 1976 by which the appellant Jhuntha Ram was convicted for the offence under section 302 and Sec. 27 of the Arms Act and sentenced to imprisonment for life on the first count and two years' R. I. and a fine of Rs. 1000/- in default of payment of fine to undergo two months R. I. on the second count.
(2.) BRIEFLY stated the facts of the case giving rise to this appeal are as under: - In the precincts of village-Nagrasari there was land which the villagers claimed to be abadi land in view of the increasing population of the village and the appellant Jhuntha Ram claimed to be his in view of the allotment made to him. It is alleged that deceased Lal Chand Brahmin had encroached upon that land by constructing an enclosure (Bada) which created annoyance to the appellant. On 30th November, 1973 at about 10-30 a. m. there was hot exchange of words between Lal Chand Brahmin and appellant Jhuntha Ram concerning that 'bada'. Jhuntha Ram hurled abuses to Lal Chand and fired a shot from his muzzle loading gun which proved fatal for Lal Chand. Lal Chand Jat (P. W. I) who was in his nearby field on hearing the report of the gun fire rushed towards the site. Roopa Ram (P. W. 2) and Devsingh (P. W. 3) also went near the place of the occurrence. Mahaveer and Dev Singh (P. W. 3) lifted the dead body of Lal Chand and took him to a distance of about 355 feet and put it outside the enclosure of the deceased. Roopa Ram told the deceased that he had committed the blunder at the Ram Pratap son of the appellant (since acquitted by the trial Court) fired a shot with his country made pistol which hit the thigh of Roopa Ram. Sukh-deva another son of the appellant (also acquitted by the trial Court) is also said to be there participating in the quarrel. Lal Chand (P. W. I) went to the Police Station, Nagrasari and lodged an oral report with P. W. 9 Hari Singh, S. H. O. of that Police Station. The information reduced into writing is Ex. P 1. The S. H. O. went to the site and conducted necessary investigation there. He inspected the site and prepared the site inspection memo Ex. P. 2. He also prepared the injury report of Ex. P. 3 and panchayatnama of the dead body Ex. P. 4. Three empty cartridges and two pieces of paper smelling gun powder were found at the site which were taken in possession and sealed. The blood stained earth and the clothes of the deceased smeared with blood were also taken in possession. Dr. Ganga Ram, Medical Officer, Government Hospital, Mohar conducted the autopsy over the dead body of Lal Chand at 4. 00 p. m. On the same day, the Doctor noted following gun shot injuries on dead body and noted as under: - Wounds: 1. 1 c. m. circular wound on the back of lift wrist joint near the medial border. Edges of the wound are inverted and bruised. Direction of the wound is almost horizontal and outward. Communicated as with the wound no. 2. 2. 1. 5 c. m. circular wound on internal border of wrist joint. Edges of wound are everted and irregular, Directions of the wound is almost horizen-tal and inwards. Communicated with the wound no. 1. There is fracture of lower end of the left radius. 3. 1 c. m. oval wound 2 cm. to the right from left border of the sternum at the level of third castal cartilage. Edges of the wound inverted and bruised. Direction of the wound backward downward and to the right. Wound communicates with the thoracic civacity. On dissection the sternum is punctured at the level of third castal cartilage on further desection, there was a wound in right lung enteriouly wound measuring 2 c. m. x 2. 2 cm. Direction of the wound was backward outward and downward. This wound communicated with the wound in posterior surface of the lung which measured 3 c. m. x 3. 5 cm. All wound were ante-mortem in nature. One shot was removed from dissecting the wound no. 3. In the opinion of the Doctor, the cause of death was fire arm injuries causing rupture of right lung leading to haemorrhage and shock. The post-mortem examination report is Ex. P. 21. On December 1, 1973 Dr. Ganga Ram examined Rugga Ram and noted one lacerated wound 2 c. m. x5 c. m. muscle deep on middle third part medial surface of left thigh. He also noted swelling on the middle third medial surface of left thigh aground the wound no. 1. The duration of injury was said to be 24 hours. The injury report is Ex. P. 22. The appellant was arrested on 30th November, 1973. In pursuance of the information Ex. P. 13 furnished by him he got recovered muzzle loading gun from his house which was taken in possession vide memo Ex. P. 9. The appellant also produced one bag containing gum powder, pellets etc. which were also taken in possession vide memo Ex P. 10 Rampratap and Sukhdeva were also arrested. In pursuance of the information furnished by Rampratap 30 cartridges of 12 bore gun were recovered from the possession of one Girdhari. In pursuance of the information furnished by Sukhdeva to the effect that Ram Pratap had given his 12 bore gun to him. One gun was recovered at his instance from a place about half a mile distance from the village population. The fire arm and the cartridges etc. recovered during the course of investigation were sent to the Ballistic Expert, and the blood stained articles to the Serologist for chemical examination and report were received.
(3.) UPON completion of necessary investigation charge-sheet against the appellant and two co-accused Rampratap and Sukhdeva was filed in the Court of Munsif and Judicial Magistrate, Bhadra. The learned Magistrate finding a prima facie case exclusively triable the Court of Sessions, committed all of them to the Court of Sessions Judge, Sri Ganganagar. The case was transferred to the Court of Additional Sessions Judge, Hanumangarh. The learned Addl. Sessions Judge, Hanumangarh charge sheeted the appellant for the offence under sections 302, 307/34 I P. C. and Sec. 27 of the Arms Act. Rampratap was charge-sheeted for the offence u/s 302/34 I. P. C. and Sec. 27 of the Arms Act and Sukhdeva was charge sheeted for the offence under section 302/34 and 307/34 I P. C. On their pleading being recorded all of them denied the indictments and claimed to be tried. Prosecution examined eleven witnesses in all to substantiate its case. All the accused denied the allegations levelled against them in the statement under section 313 of the Code of Criminal Procedure. Appellant Jhuntha Ram stated that he was making shoes for the villagers for about 16 years. Then his caste people directed him to leave that profession and he complied with the direction. That he had his land in the precincts of village. That he was also performing the duties of village watch man. The villagers as asked him either to continue the work of shoe making or leave the land. Thereafter the land was allotted to him and became his khate-dari land. That the villagers wanted the land to snatch from him. He further stated that he had gone to the field for cultivation of land on the date of occurrence then fifteen or sixteen villagers armed with pistols, gun and lathis entered his field and hurled abuses to him. They started firing the guns, and pistols. That, he got frightened when the villagers surrounded him. That he was having a muzzle loading gun with him which he fired in the air in order to save himself. Someone fired the gun from behind him which hit the persons in the western side and the people cried that the gun has hit their own man. That, he thereafter went away from there with his gun. He further stated that in case the murder would have been at his hand, the villagers would not have let him and his family members alive. He filed Ex. D. 4, Ex. D. 5, Ex D 6, Ex. D. 7, Ex. D. 8. Ex. D. 9 and Ex. D. 10 the papers relating to the allotment of the land in question to him and his being put in possession of the same. The learned trial Judge did not believe the prosecution case about the quarrel being taken place because of the enclosure erected by Lal Chand as the same was there for the last 10-15. years. The trial Judge attached importance to the removal of the dead body of Lal Chand from the site of occurrence to a great distance up to the enclosure of the deceased and opined that it so appears that this was done in order to deprive disprove the accused of their right of private defence to person or property. The learned Judge in view of the medical evidence, that the injuries sustained by Rugha Ram could not be caused by any fire arm and were rather caused by blunt object and also in view of the expert opinion that the none of the cartridges found at the site could have been fired by the country made pistol under reference did not hold Ram Pratap guilty of any offence. Presence of Sukhdevo and Rampratap at the site and their participation in the quarrel was also considered to be exaggeration by the learned trial Judge. In view of this finding, Rampratap and Sukhdeva were acquitted. The learned trial Judge, considered the documents regarding the allotment of the land to be genuine. But in view of the fact that there was no occasion for the appellant to fire the shot held him guilty for the offence under section 302 I. P. C. and Sec. 27 of the Arms Act and sentenced him as stated earlier. ;