SINGH, J. - (1.) THIS appeal has been filed by the accused appellants against the judgment dated 19. 12. 1998 passed by the Additional Sessions Judge, Rajgarh, District Alwar in Sessions Case No. 33/1995 convicting and sentencing accused appellant No. 1 Madan, for the offence under Section 302 I. P. C. read with Section 34 I. P. C. to imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment to further undergo one year's simple imprisonment; and convicting and sentencing accused appellant No. 2 Patwari for the offence under Section 302 I. P. C. to imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment to further undergo one year's simple imprisonment. Accused-appellant Patwari was further convicted and sentenced for the offence under Section 3/25 of the Arms Act for three years and to pay a fine to further undergo three months simple imprisonment. He was further convicted and sentenced for the offence under Section 5/27 of the Arms Act for three years rigorous imprisonment and to pay a fine of Rs. 500/- and in default of payment of fine to further undergo three months simple imprisonment. All the sentences were ordered to run concurrently.
(2.) THE brief facts giving rise to the instant appeal are that on 14. 03. 1995, complainant PW-4 Ram Kishore lodged a First Information Report with the allegations that on the previous night of 13. 03. 1995 at about 10:00 or 11:00 PM his brother Isar (the deceased), his wife PW-5 Vimla and his children were sleeping in their house when the accused appellant No. 1 Madan came and called out Isar asking him to come outside the house. When Isar went outside, Madan exhorted appellant No. 2 Patwari, to fire and kill Isar. On being so exhorted, Patwari fired a gun shot as a result of which Isar received gun shot injuries and died on the spot. It was further stated by the complainant that on hearing the gun shot and cries of wife of Isar PW-5 Vimla, he ran out of his house and found Isar (deceased) lying. On reaching to the spot, PW-5 Vimla, wife of Isar narrated the whole incident to him. It was further stated by the complainant in the report Exhibit P-11 that he did not go to lodge the report at night on account of fear for his own life and safety. Upon this written report Exhibit P-11, police recorded the First Information Report Exhibit P-12 bearing No. 17 of 1995 at Police Station Tahla, District Alwar for the offence under Section 302/34 IPC read with Section 3/25 of the Arms Act and started investigation. Police recorded the statement of the witnesses, prepared the punchnama of the dead body and sent the dead body of Isar for post mortem. The post mortem report is Exhibit P-8. During the course of investigation, upon information being furnished by the accused appellant No. 2 Patwari, the gun which was the weapon of offence was recovered vide seizure memo Exhibit P-9. From the place of incident the blood stained sand and pallets which were embedded in the wall were also recovered by the police. The cloths of the deceased, pallets and gun were sent to the Forensic Science Laboratory and the necessary receipts and entries in the malkhana register were also made in this behalf. After the conclusion of the investigation, police filed the challan against both the accused appellants. Appellant No. 1 Madan was charged for the offence under Section 302 read with Section 34 I. P. C. whereas appellant No. 2 Patwari was charged for the offence under Section 302 read with Section 34 I. P. C. alongwith Section 3/25 and 5/27 of the Arms Act. Both the accused appellants pleaded not guilty and faced trial. Learned Trial Court recorded the statements of 19 prosecution witnesses and took into consideration the documentary evidence lead by the prosecution. No witness was examined by the accused appellants in their defence. After considering the evidence and hearing the arguments, the learned Trial Court vide its judgment dated 19. 12. 1998 convicted the accused appellant No. 1 Madan for the offence under Section 302 read with Section 34 I. P. C. and the accused appellant No. 2 Patwari for the offence under Section 302 read with Section 34 I. P. C. along with offence under Section 3/25 and 5/27 of the Arms Act. Being aggrieved by the aforesaid judgment and order of conviction and sentence passed by the learned Trial Court, both the accused appellants have preferred this appeal before this Court. The submission of the learned counsel for the appellants is that alleged prosecution story against them is a false one and the accused appellant No. 1 Mahan has been falsely implicated on account of the fact that there was animosity between him and the deceased Isar who were close relatives and it was on account of the a dispute with regard to the agricultural field that he has been falsely implicated in this case whereas in fact there was no evidence against him and therefore, he is innocent. Learned counsel for the appellants further submitted that accused appellant No. 2 is innocent and he has been falsely implicated in this case. The submission of the learned counsel for the appellants is that in fact there was no eye witness to the incident and the police have concocted and fabricated the testimony by producing PW-5 Smt. Vimla, wife of the deceased and PW-6 Kumari Suman, daughter of the deceased as so called eye witnesses whereas in fact they never saw the incident. The learned counsel for the appellants has further submitted that report Exhibit P-11 upon which the First Information Report was chalked out was lodged after a considerable delay i. e. , at about 11:05 AM on the next day nearly after 12 hours and, therefore, the same cannot be accepted on its face value and it was an act of pre-meditation to falsely implicate the accused appellants. Learned counsel for the appellants has further submitted that the prosecution has failed to examine that person who wrote the report Exhibit P-11 since the complainant Ramkishore (PW-4) who is the brother of the deceased was illiterate and had only affixed his thumb impression on Exhibit P-11. Learned counsel for the appellant further submitted that the incident occurred during the night and in the absence of any source of light at the scene of occurrence, it could not have been possible even for the alleged eye witnesses PW-5 Smt. Vimla to have seen the accused appellants and, therefore, the identification of the accused appellants cannot be relied upon.
(3.) LEARNED Public Prosecutor on the other hand supported the judgment of the learned Trial Court and has stated that the learned Trial Court has on the basis of the evidence on record, rightly convicted the accused appellants. We have given our thoughtful consideration to the submissions made by the learned counsel for the parties and perused the record. So far as the submission of the learned counsel for the appellants that there was delay in lodging the First Information Report is concerned, it may be stated that the occurrence had taken place at about 11 O'clock in the night and it could not have been expected that from the remote village somebody should have gone immediately to lodge the report in the middle of the night itself when the distance of the police station from the place of the incident as stated in the First Information Report is 40 Kms. The witness PW-4 Ram Kishore who lodged the report has explained that he did not go to lodge the report immediately on account of fear for his life and safety. Even otherwise, in normal circumstances when unexpectedly in the middle of the night PW-4 Ram Kishore was faced with the situation where his brother Isar had been murdered and his wife and children would require his presence by their side it was not possible for him to have gone immediately to lodge the report in the middle of the night. In this view of the matter, we do not consider it in the facts and circumstances of the case to be a case of delayed FIR which would vitiate the prosecution case. ;