V.P. Tyagi, J. - (1.) SHAMBHUSINGH has filed this appeal against the judgment of the Additional Sessions Judge, Bundi, dated 27th November, 1973, challensing his conviction under Section 302 IPC and sentence of life imprisonment for committing the murder of one Deena. He has also challenged the conviction under Section 27 of the Indian Arms Act.
(2.) BRIEFLY stated, the prosecution story, as revealed by the eye -witnesses, is like this. About 15 to 20 residents Jaisalmer District including deceased Deena migrated in 1973 on account of severe drought condition in that region to Bundi District. On 22.4.73, deceased Deena along with his other colleagues viz PWs, Haiyat Dina and Ali went to graze their cattle in the nearby fields which were limit guaranty after harvesting of the crops. Ali and deceased Deena went to nearby Baveri to quench their thirst. According to the prosecution case, when these two persons went down the Baveri, they saw Shambhusingh armed with a single barrel muzzle loaded gun at the top of the Baveri. It is alleged the it Shambhusingh threw a challenge to these persons and said that the members of the migrating party had created another Pakistan in the town of Keshroi Patan and therefore he would finish them On heating this threat, both Alt and Deena went a way from the Baveri towards the field where their other colleagues viz PWs. Dina and Hayat were grazing their cattle. When they had hardly gone one and a half furlong from the Baveri, they were over powered by Shambhusingh. It is said that Shambhusingh reached the place marked as B in the site -plan Ex. P. 2 and the deceased and his friend Ali were at that time at point A. Shambhu Singh opened a fire towards them which hit Deena at two places causing wounds in his chest as well as on his thigh. Deena fell down. Bachaya PW 3 who was at the 'dera' about half a mile away heard the gun -shot fire and he rushed towards the scene of occurrence. PW 1 Hayat, PW 2 Dina and PW 3 Ali who were already at the spot and were later on joined by PW 4 Bachaya, brought deceased Dina to their camp and found that Dina had breathed his last. Hayat Dina, Ali and Bachaya then went to the Police Station, Kesborai Patan to lodge the report It is in the evidence of these witnesses that Sbambhu Singh had already reached the Police Station and he was there when Hayat lodged the First Information Report Ex. P. 1. The report was recorded at about 10 a.m. This document is quite exhaustive giving the entire narration about the manner in which the incident took place. Head Constable Pooran Brahm PW 6, who was in -charge of the Police Station in the absence of the SHO, after recording the FIR, examined the alleged eye -witness under Section 161 Cr.PC. (old) and then proceeded to the 'dera' where he found deceased Dina lying dead. He prepared the inquest report Ex P. 3 and then went to inspect the site and prepared the site plan Ex. P. 2. Thereafter he returned to the Police Station where he mat Roopkishore PW 8 who after having seen the diary, instructed Pooran Brahm to arrest the accused. By that time, the SHO Abdul Wahid PW 11 returned from his duty and took over the investigation in his hand. He arrested the accused at about 4 o'clock who was already at the Police Station. After about half an hour, the accused furnished an information that the gun which was used by him to commit the crime was lying in his house and it is said that in pursuance of that information the gun was recovered from the appellant's house. It may be mentioned here that Shambhusingh's father had a licence for this gun. The gun was sent for ballistic examination and from the report Ex. P. 15 it is clear that the ballistic examination could not connect the gun with the crime nor could the expert say that the two pellets which were taken out the body of the deceased Dina were fired from the gun recovered at the instance of the accused.
(3.) THE body of Dina was sent for post mortem examination. Dr Ram singh PW 7 performed the post -mortem examination and found two external injuries, namely, wound on the right side of the thigh lateral aspect and oval opening 1/4" x 1/4" in between 5th and 6th postal cartilages on left side near sternum. On opening the body and further exploring the wounds, the doctor discovered a pellet which caused wound No. 1 on the right side of the thigh. He also found an oval opening 1/4'' x 1/4" in the 10th rib posteriorly with fracture of that rib. A pellet was also found in the subcutaneous tissue in the left side of chest in back corresponding to 10th rib. He also noted down that injury No. 2 had a charring in 3/4" diameter on the medical side of the wound In his opinion, the injury caused by the entry of the pellet in the chest was fatal and the death was caused on account of that injury. It was sufficient in the ordinary course of circumstances to cause death. After investigation, a challan was put up in the Court of the Additional Munsif -Magistrate No. 2, Bundi, who after taking committal proceedings, sent the accused to stand his trial for the Under Section 302 IPC & Section 27 of the Arms Act before the learned Additional Sessions Jude, Bundi Except the testimony of the eye -witnesses, there is no other circumstantial evidence to connect the accused with the crime. The gun which was recovered in pursuance of the information supplied by the accused when he was under custody, however, could not be connected with this murder.;