BALI, J. - (1.) APPELLANT Subhash faced trial for murder of constable Kamlesh. He has since been held guilty for an offence under section 302 IPC and sentenced to undergo Imprisonment for Life as also to pay a fine of Rs. 10,000/- and in default of payment of fine to further undergo one month Rigorous Imprisonment. He has also been held guilty under section 27 of the Arms Act and sentenced to undergo three years Rigorous Imprisonment as also to pay a fine of Rs. 2000/- and in default of payment of fine to further undergo six months Rigorous Imprisonment. This order of conviction and sentence was passed by learned Addl. District & Sessions Judge, Sambharlake, District Jaipur on 11. 7. 2002. Subhash has questioned the said order in the present appeal filed by him.
(2.) OCCURRENCE leading to death of Kamlesh - Constable and injuries to Lala Ram, another Constable, as per prosecution version, had taken place on 20. 1. 1984 at 6. 25 PM. FIR with regard to the incident was lodged by Bhanwar Lal Constable on the same date in a matter of 25 minutes. While unfolding the prosecution case he stated that today on 20. 1. 1984 at 2. 30 PM he had gone to Mauja Sali in connection with investigation of a case bearing No. 18/84 under section 341-323 IPC so as to serve the accused. Just outside the Police Station Shri Kamlesh Kumar, LC 1719 was standing who was going to Mauja Dantri in connection with case No. 17/84 under section 279-337 IPC with regard to accident of trucks. They both waited for a vehicle but since they could not get any bus they boarded a truck. When they reached near Ram Nagar they found an Ambassador Car of light white colour (sleti) bearing No. HRW 5397 facing towards Jaipur. On suspicion, they stopped the truck at Bus Stand Ram Nagar and came out of it. They met Shri Jhabar Mal LC 2402 and Langri Lala Ram. They told them about the car. They reached near the car in order to check the same. They found no person in the car because of which they made Kamlesh Kumar LC 1719 and Lala Ram stand near the car and he and Jhabar Mal LC 2402 reached at the Dera of Nathu Nut, where they found two strangers standing. They were wearing black pents and black jackets. One of them was bare headed whereas the other was wearing a woolen cap. The person wearing woolen cap was fat and was of short stature whereas the other person was slim and was of height 5'6" or 5'7". They confronted them and asked them as to why they were there. Then all of a sudden the person of a taller height and bare headed took out a revolver from his jacket and started firing. They were however, not hurt. The second person also took out his revolver and while pointing out it towards them fired and ran towards car. They told Kamlesh Kumar and Lala Ram to stop them. When both of them came in front of these persons they started firing from the revolver. They started the car and ran towards Jaipur. When he and Jhabar Mal 2402 saw Kamlesh Kumar and Lala Ram they found that blood was oozing from the neck and chest of Kamlesh whereas blood was oozing from Lala Ram from his left arm. He stopped a truck in front of Police Station and put Kamlesh and Lala Ram in the same and brought them in Dudu Hospital. The accused were of whitish complexion and they appeared to belong some respectable family. He could identify them after seeing them. During the course of trial, prosecution examined Dr. B. M. Gupta PW20. He stated that on 20. 1. 1984 he was working on the post of Medical Jurist in SMS Hospital. On that day at 10. 05 PM he had medico legally examined Lala Ram S/o Teekam Ji. He found four injuries on his person. In the opinion of the doctor all the injuries on the person of Lala Ram were caused by fire arm. The same were fresh. Dr. Radhey Shyam was examined as PW15. After examining the X-rays of the injuries of Lala Ram he stated that he had taken X-Rays of the injured Lala Ram. The X-ray plates he stated were some where lost in the hospital, regarding which report was registered at the concerned Police Station. Dr. S. K. Pathak, who was examined as PW25 had conducted the post mortem on the dead of Kamlesh. The doctor found following injuries on the dead body of Kamlesh :- " 1. Punctured wound measuring 1-1/4 cm. X 1-1/4 cm. X thorasic cavity deep, placed on right lateral aspect of chest, 17 cm. Lateral lower 1/3 part of sternum and also from medium line of chest and 10 cm. Below and lateral to right nipple oval in shape almost circular, blackening present all around the wound (Inlet wound), margins are irregular, inverted. 2. Punctured wound measuring 1-1/4 cm x 3/4 cm. X neck muscle and cavity deep, placed on left lateral aspect of neck just below angle of mandible, 3-1/2 cm. Below and 6 cm. Below left ear labule. Margins of wound are irregular and blackening present around it, margins are are inverted (Inlet wound ). 3. Abrasion measuring 2 cm. x 1 cm. , placed on right lateral aspect of chin. 4. Abrasion measuring 1/2 cm. And 1/4 cm. In dia meter, placed on it malor region of face. 5. Abrasions two in no, 1/2 cm. x 1/4 cm in dia meter, placed on left side of forehead, placed 3 cm. Apart from each other. 6. Abrasion measuring 4 cm x 2 cm. Placed on lateral aspect of right thigh upper portion. " In the opinion of the doctor injuries were ante mortem in nature and the collective effect of internal injuries was sufficient to cause death in the ordinary course of nature. Bhanwar Lal, examined as PW13 and Lala Ram the injured eye- witness examined as PW22, fully supported the prosecution case. Bhanwar Lal deposed in tune with the FIR lodged by him, whereas Lala Ram fully corroborated the statement made by Bhanwarlal. Sunder Lal, SHO Kotwali Jaipur City examined as PW1 stated that on 20. 1. 1984 he was In charge of Kotwali Jaipur City. On 21. 1. 1984 he received oral orders from S. P. , Jaipur and DIG, Jaipur that in connection with case No. 20/84 pertaining to Police Station Dudu he should search the accused at Gaziabad, Chandigarh, Yamuna Nagar and other stations. As per orders dated 21. 1. 1984 he went to Gaziabad. When he made inquiries at Samrat Hotel, Gaziabad, he came to know that some persons who had given the address of Lala Ram in the Month of January had stayed there. Their activities were of shady nature. On the basis of information gathered from Samrat Hotel, he reached Karnal but the address of Karnal was found to be that of C. J. M. He consulted the local police at Karnal and then proceeded to Chandigarh. On the basis of papers collected at the spot pertaining to car he reached Middle Factory. From the officers of the Middle Factory it came to light that their Ambassador Car No. CHA 3200 was stolen from Chandigarh. Information regarding which had already been given to the Police. He collected a copy of the said report from the Police Station, Central Chandigarh. He talked about the occurrence to the officers and staff of that Police Station when he came to know that gang of Ravi, Subhash and Bharat Bhusan is active in dacoity and murder in the said car. He also came to know that Bharat Bhusan has since died in an encounter with the Delhi Police whereas Ravi and Subhash are still active. The officers at Chandigarh told him about the gang of Ravi and Subhash. He obtained photographs of Subhash and Ravi from the staff of Police Station. From Chandigarh he went to Yamuna Nagar. He made an inquiry there by showing the photographs. He came to know that Ravi had stayed in the hotel along with his companions and one woman. The witness then gave details of the places he had visited while investigating the case. He ultimately reached Delhi and talked to the Police Officers and had also shown them the Photographs. There also came to know that Bharat Bhushan has since died in an encounter. They also recognized photographs of Subhash and Ravi. Laxmi Narain Rao, SP, Delhi who was examined as PW12 stated that on 18. 11. 1984 he had arrested the appellant in connection with case No. 280/1982 under section 394/397 IPC. This accused on interrogation had told him that he had committed number of crimes at Delhi, Haryana, Rajasthan and Bombay. During the course of investigation he had obtained finger prints of the appellant. He had sent the information with regard to crimes indulged by him at Rajasthan, Haryana and Maharashtra. He proved specimen finger prints of the accused Ex. P20 and P21. PW16 Goma, PW17 Tulsi and Nathu PW 21, witnesses of Dera of Nuts, where the appellant with his companion was found standing, however, did not support the prosecution case and turned hostile. Gopal Puri, ASI examined as PW14 and Kishan Singh, Dy. SP, Neem Ka Thana, examined as PW19 deposed with regard to the steps they had taken while investigating the case. When questioned under section 313 Cr. P. C. , the appellant besides denying incriminating material put to him pleaded innocence and false involvement in the case. He, however led no evidence in defence. Mr. Biri Singh Sinsinwar, learned counsel representing the appellant contends that the prosecution led no evidence to connect the appellant with the crime. In so far as finger prints of the appellant said to have been obtained from Laxmi Narain, ASP, Delhi, and which were matched by finger prints from the car when it was found is concerned, the prosecution led no evidence to show that specimen finger prints collected from Laxmi Narain actually belonged to him. The said finger prints were not obtained in presence of any Magistrate. In so far as refusal of appellant to participate in an identification parade is concerned, the counsel contends that photographs of the appellant had since already been shown to the witnesses, and therefore, the appellant had rightly refused to participate in an identification parade.
(3.) IN the context of the facts and circumstances of this case, we however, find no merit in the two fold contentions of the learned counsel as noted above. The prosecution, it may be recalled, in its endeavour to bring home the offence against the appellant primarily relied on the evidence of two constables Bhanwarlal and Lala Ram. Bhanwar Lal is the first informant who lodged the FIR within 25 minutes of the occurrence. His presence at the spot is not proved only on the dint of his lodging the FIR within 25 minutes but also from various documents that show that he was indeed present at the spot in connection with his duty. IN so far as Lala Ram is concerned, his presence can not possibly be doubted as he himself was injured in the incident leading to death of Kamlesh. IN the facts of the present case we are of the firm view that there was no need at all for the prosecution to have arranged the identification parade. Bhanwar Lal and Jhabar Mal LC 2402 were involved in an incident which must have lasted between 8-10 minutes. After meeting Kamlesh LC 1719 and Lalaram stand near the Car, Bhanwar Lal and Jhabar Mal had reached the Dera of Nats where they had found the appellant and his companion standing. They not only noticed that the clothes that they were wearing but also their height and stature. They confronted them and asked as to how they were there. Appellant and his companion started firing from their revolvers and ran towards the place where they had parked the car. Bhanwar Lal and Jhabar Mal chased them and told their companion constable already standing near the Car. Lala Ram as mentioned above, was already standing near the Car. Both the prosecution witnesses Bhanwar Lal and Lala Ram had seen the appellant and his companion from very close quarters. It was an occurrence of mid day when the sun was in full bloom. Bhanwar Lal and Lala Ram were victims of a heinous crime where one of their companions namely Kamlesh died whereas Lalaram himself sustained serious gun shot injuries. Crime of this magnitude is unforgetable and so will be true with regard to those who might have committed the same. Victim of such an attack who had seen the assailants from such a close range in broad day light would not forget their face in their life time. Face of such a person gets a permanent imprint in the mind of the victim. That being so, as mentioned above, even if the prosecution was to arrange no test identification parade it could not be faulted on that count. That apart, one of the witnesses was not even questioned in the cross examination that he had been shown the photographs of the appellant. There is no merit in the contention of the learned counsel that the specimen finger prints obtained from Laxmi Narain were not proved to be that of appellant either as the same were not taken in presence of the Magistrate. There is nothing on record to suggest that Laxmi Narain ASP, Delhi had not conducted investigation against the appellant and in the process thereof not collected his specimen finger prints. There is no reason whatsoever to disbelieve the statement made by Laxmi Narain ASP Delhi. Assuming however, that the prosecution has not led proper evidence to prove that the specimen finger prints collected by the ASP actually belonged to the appellant, yet, prosecution would succeed on the dint of statements made by two eye witnesses whose presence is established at the scene of occurrence. Finding no merit in this appeal, we dismiss the same upholding the order of conviction and sentence recorded by the learned Additional Sessions Judge, Sambhar Lake Distt. Jaipur, dated 11. 7. 2002. . ;