M. R. SHARMA, J. - (1.) THE Additional Sessions Judge, No. 2, Bharatpur convicted the accused-appellant Ram Charan u/s 302 I. P. C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs, 1,000/-and in default of payment of fine to further suffer three months rigorous imprisonment. Along with the accused-appellant the other accused persons who were tried were Rajendra, Ram Niwas, Attar Singh and Fateh Singh and each of them were tried u/ss. 147, 148, 149, 302 and 323 I. P. C, but the learned Sessions Judge extended the benefit of doubt to each of them and each of them was acquitted. Ram Charan, therefore, filed this appeal against his conviction and sentence.
(2.) THE case of the prosecution is that on 2nd April 1969 Ran Singh PW 8 along with his brother Jandal Singh was returning to village Milsama from Kherigarh where they had gone. At about 6. 00 p. m. when they were near the road and near the enclosure (Bara) of one Jaipal, the accused-appellant Ram Abakan along with other above named accused persons Rajendra, Ram Niwas, Attar Singh and Fateh Singh were standing on the way. THE accused appellant was armed with a gun and other accused persons were armed with lathis. Ran Singh and his brother Jandel Singh were on the motor-cycle and as per the case of the prosecution Ram Abakan and others stopped their motor cycle and at this first beating is said to have been administered to Ran Singh by the accused persons. Jandel Singh deceased is also said to have been beaten by lathis and then Ram Abakan, who as said earlier was armed with a gun, fired but the first fire did not hit anybody. He repeated the fire which hit a nearby standing bullock. He then again fired and it hit Jandel Singh on his chest. He fell down and died on the spot. THE occurrance was witnessed by Girraj PW 1, Man Singh PW 2, Mukat Singh PW 3, Chop Singh PW 7, Anar Singh PW 4 and one Dal Cband. Ran Singh PW 8 lodged a report Ex. P. 7 and Ex. P. 11 the FIR in police station Roopwas. In fact the report Ex. P. 7 was handed over to the S. H. O. when he reached on the spot. THE case was registered and investigation was set in motion. The injuries of Ran Singh PW 8 were examined. The post-mortem was conducted on the dead-body of Jandel Singh by Dr. Ram Niwas Yadav PW 11 and Dr. Yadav opined as under:- 1. Linear Abrasion 1" in size 4" above left pinna. 2. Entrance wound about 1. 5 cm, in diameter situated to the left of lower end of stermn, surrounded by an area of redness in a diameter of 4 cms. , wound directed backwards and slightly right side, on the left 9th rib broken at stormed and 12th thoracic vertibrea broken. A bullet was taken out from the dead-body from the back, at the level of T12 L1 vertebrae. The accused was arrested vide arrest-memo Ex. P. 16 and he also handed over his own licenced single barrel gun and bullet recovered from the dead-body were sent so the Director, Forensic Science Laboratory who under its report dated 22. 6. 1990 found that the lead ball (8/1) recovered from the dead body is normally used in 12-bore ammunition and could have been fired from submitted 12-bore SBBL gun, but he could not say about the definite time of least fire from the gun though the gun was found in serviceable condition. After investigation, a charge - sheet was filed against the accused-appellant and others and after the witnesses of the prosecution the accused was examined u/s 313 Cr. P. C. The accused stood on a bare plea of denial. The accused did not examine any witness in defence. The learned Sessions Judge convicted and sentenced accused-appellant as aforesaid but acquitted the other accused persons. We have heard learned counsel for the appellant and the learned Public Prosecutor, and have gone through the record. It was contended by the learned counsel for the accused - appellant that the prosecution has not come out with immediate cause of the alleged incident. According to the learned counsel the deceased died as a result of a gun shot injury and blood is said to have oozed out from the body and said to have fallen on the ground, but no blood was found on the spot, when the S. H. O. prepared the site plan and dead-body was seen and inquest report was prepared. He also contends that the dead-body was not found on the place where the incident is said to have taken place and when the SHO is said to have reached the spot and prepared the inquest report, the dead-body was lying in the Bara of Jaipal. Learned counsel, therefore, contends that the witnesses have not come out with true story and the possibility that the occurrence might have taken place somewhere else and in some other manner cannot be excluded. Learned counsel further contends that all the eye-witnesses have been disbelieved so far as they came out with a case that even other accused-persons have caused injuries by lathi to Jandel Singh Learned counsel contends that the witnesses are relations of the deceased and are not independent witnesses and as such they are not wholly reliable witnesses. Learned Public Prosecutor supported the judgment of the learned trial court.
(3.) THE question is as to whether the eye-witnesses namely Mukat Singh PW 3, Anar Singh PW 4 and Ran Singh PW 8 should be relied upon ? We have already said earlier so for as FIR Ex. P. 7 is concerned; Ran Singh PW 8 has also mentioned therein that Girraj, Man Singh and Chop Sine have also witnessed the occurrence. The prosecution did examine Girraj Man Singh and Chop Singh. Girraj PW 1 has not supported the case of the prosecution and was declared hostile. Man Singh PW 2 also did not support the case of the prosecution. Chop Singh PW 7 did say that the accused appellant had caused an injury with a fire arm to Jandel Singh. But he did not support the case of the prosecution in so far as other accused-persons are concerned and, therefore, he was declared hostile. A look at FIR Ex. P. 7 which was described by Ran Singh PW 8 will show that the prosecution has come out with a case that other accused persons Attar Sine Rajendra and Fateh Singh had given blows with lathis to Jandel Singh on his back and a similar statement was made by him and other witnesses in the court. But we have already referred to the post-mortem report and the statement of the Doctor Shri Ram Niwas Yadav PW 11 and so far as post-mortem examination is concerned, Doctor only found two injuries, an abrasion 1" in size 4" above left pinna and an entrance wound about 1. 5 cm. in diameter situated to left of lower end of stermn, surrounded by an area of redness in a diameter of 4 cms. which was as a result of gun-shot injury. In other words,the doctor found only two injuries and, therefore, prosecution's case as has been set up in the FIR that as many as four accused persons have caused injuries, is not borne out from the FIR. Now we come to the statement of Ran Singh PW 8-the author of the FIR He has stated that the accused persons Attar Singh, Ram Niwas. Rajen-dra and Fateh Singh had given lathi blows to Jandel Singh. He states that it was Rajendra who gave lathi blow on the head of Jandel Singh Ram Niwas was given blow with lathi on his hands and Attar Singh on his back. It was on that moment that Ram Charan fired at Jandel Singh. Therefore, it cannot be said that he is only a truthful witness, because as said earlier one simple injury by blunt weapon is found on the body of Jandel Singh. It has come if the statement of PW 3 Mukat Singh, the other eye-witnesses of the occurence, that Jandel Singh was given lath, blows by other accused persons He has also made categorical statement that Attar Singh Fateh Singh and Rajendra had given lathi blows to Jandel Singh and it was at that momant that Ram Charan had fired from his gun and it did not struck anybody. He again repeated the fire which struck 'badhiya' which belonged to Arjun and the third fire struck Jandel Singh and he fell on the ground. There is sufficient material on record that relations between deceased and accused were not good and it is well known that enmity is a doubled edged weapon. Mukat Singh admits that Anek Singh Amar Singh and Chop Singh belongs to his family. It has also been admitted by him that his house is near the road which comes from Kheragarh Dudhadhari and at the back of his house there is the house of Kokh Singh. It has also in his statement that it is correct that what happens near the Bara of Jaipal is not visible from his house and that the distance of the Bara of Jaipal is not visible from his house. According to his statement, he was working at that time just by the side of the road (RAI BARSA RAHA THA ). He also admits that it is correct that the thorough-fare which goes from the back of the house of Jaipal is not visible from the house and even the enclosure of Arjun is not visible from his house. It has also been stated by him that it is correct that Jandel Singh received an injury by gun shot on the turn of the thorough-fare. According to him gun was fired from the distance of about 5-6 steps and he even states that the accused Ram Charan had brought the loaded gun and it was loaded second time near a 'pulia'. But he says that he has not seen any empty cartridge on the spot. He is unable to say as to how much time is taken in loading a gun. It has also stated by him that no attempt was made by him or any other witness to catch-hold the accused, when he was in process of loading his gun second and third time and then the occurrence had taken place near the thorough fare and when Jandel Singh had received gun-shot injury, there was blood oozing out from the wound. Jandel Singh fell on the ground and he himself has seen blood on the ground and has also shown to the police. Anar Singh PW 4 had also made a similar statement. He admits that Jandel Singh is his nephew. He decided the suggestion that the occurrence had taken place on the fields of Ram Charan, accused - appellant and further that, the accused-appellant Ram Charan and others and Shiv Ram had received injuries. Ran Singh PW 8 had lodged the FIR and we have already dealt with his statement. ;