KUDAL, J. - (1.) ACCUSED-appellant Baghel Singh has been convicted under Section 302 IPC by the learned Sessions Judge, Alwar for having committed the murder of one Dalu Ram by firing with his pistol at him. On 25. 4. 1973, the learned Sessions Judge sentenced the accused-appellant to imprisonment for life. Feeling aggrieved against his conviction, the accused appellant has filed the present appeal.
(2.) THE facts of the prosecution case, in brief, are that there was a fair at Sali-serh on 25-4-1973. THE deceased Dalu Ram, aged 18 years, also went to see the fair. Two Sardars, who were said to be pick-pockets, visited the fair One of the Sirdars was wearing black "tehmat" of "chek" design, white shirt and a green turban having a black cloth bag in his hand. He had hair and beard. THE other Sardar did not have any beard or hair, and he was wearing a blue trousers, and a bush-shirt of sky colour. THE Sardar wearing trousers was caught red-handed while trying to pick the pocket of a man. A lathi-blow was dealt on the Sardar who was trying to pick the pocket of a man. THEreupon, the Sardar wearing the "tehmat" took out a pistol from his pocket and fired at him. PW/3 Ram Singh, Head Constable, heard the rumour and reached the spot. He found Daluram lying on the ground in an unconscious state. Daluram was sent to the hospital at Alwar in a bus. THE Sardar who had fired the pistol ran away towards the hills. He was chased by the Police Constables, but could not be apprehended, PW/3 Ram Singh, Head Constable wrote down a First Information Report (Ex. P/9), and sent it to the Police Station Sardar Alwar through the constable Mangej Singh. THE prosecution case is that constables PW/5 Lachhi Ram and PW/7 Hukam Chand chased the accused, but the accused, could not be found. An empty of a fired cartridge was found on the spot which was seized vide memo Ex. P/10 in the presence of Motbir Kalu PW/8. THE accused presented himself at about 4. 30 p. m. on 30 4-1973 He was arrested vide memo Ex. P/17. On 3. 5. 1973, the accused gave information that he had concealed his small black bag containing a pistol and two live cartridges, and a small chintz cloth beneath a stone which was situated on the Jheer pound on the hill near which there is one tree of Salar and "thor". After completing the investigation, a challan was put up against the accused in the Court of Addl. Munsiff Magistrate No 1, Alwar, who conducted the preliminary inquiry, and committed the accused to the Court of Session. The prosecution examined 12 witnesses in all in support of its case. The statement of Dr. P. S. Agrawal, which was recorded in the committing Court, was taken on record, and marked as PW/13. The statement of the accused under Section 342, Cr. P. C. was recorded. He stated that he had gone to village Soharka on 23. 4. 1973 to attend the marriage, and that he returned from there on 27/4/1973. He had gone to the Police Station on 28/4/1973, and was kept there for three days, and was shown to the witnesses, and there after he was sent to the jail. On behalf of the accused-appellant, it was contended that the prosecution has miserably failed to bring the guilt home to the accused. It was also contended that the identification proceedings were totally farce, and on such a sham and farce identification proceedings, the accused-appellant cannot be linked with the crime. It was also contended that no independent witness has been examined by the prosecution. No witness has been examined from amongst the people who had collected at the spot where the deceased Daluram was fired at, and no one has been produced from amongst the persons who are alleged to have chased the accused-appellant while running towards the hill. It was also contended that the recovery of the empty of the fired cartridge is also of a highly suspicious character, and it cannot inspire any confidence of the Court. It was further contended that the main prosecution witnesses have contradicted themselves on material particulars, and on such a weak prosecution evidence, the conviction of the accused appellant cannot be sustained. On behalf of the State, it was contended that the recovery of the pistol and the black bag at the instance of the accused conclusively establishes the guilt of the accused. It was further contended that the opinion of the Ballistic Expert PW/1 G. R. Prasad establishes that the cartridge was fired by the pistol recovered by the police at the instance of the accused. It was further contended that the recovery of the turban Art. 10, which was identified by the prosecution witnesses, also leads to the conclusion that the accused was the person who fired at the deceased Daluram. It was also contended that the identification proceedings were conducted in a proper manner, and there is nothing on record to warrant an inference that the identification proceedings were either sham or farce in character. It was, therefore, contended that the guilt of the accused-appellant has been brought home squarely and there are no grounds warranting any interference by the appellate Court in the order of conviction by the learned Sessions Judge. Pw/1 Dr. G. R. Prasad is the Ballistic Expert. He has stated that he had received the sealed parcels from S. P. Alwar on 14/5/1973. The seals of the parcels were intact, and tallied with the specimen seals sent with the forwarding letter. The parcel marked 'b' contained one 12-bore country made pistol, while the parcel marked 'a' contained one 12-bore K. F. Special fired cartridge case. The mechanism of the pistol Art. 3 was examined by him, and was found to be in working order. Six 12-bore cartridges taken from the laboratory stock were test fired from the pistol. After a thorough examination under the microscope, the witness came to the conclusion that the cartridge case C-1, Art. 1 was also fired from the pistol W-l Art. 3. One photo micrograph and its negative showing the identity of the characteristic points in the scrap mark of the firing pin of the pistol W-l on the test cartridge case T-5 Art. 9 and the evidence cartridge case Art. 1 produced in the Court to illustrate the identity of one of a set of points, showed that both these cartridges were fired from the same pistol. Dr. P. S. Bijjan Pw/2 examined Daluram on 25-4-73 at 530 p. m. in the General Hospital, Alwar. The following injuries were found on his person - (1) Multiple wounds of entry of pellets with inverted margins and air escaping from the neck wounds. Area 16 cm. x 10 cm on the anterior part of the neck and right side of chest above the nipple. (2) A lacerated wound 2 cm x 2-1/2 cm inner side of left clavicle. (3) Multiple abrasions are 6 cm in front of the left arm. In the opinion of the Doctor, injury No. 1 was dangerous and was caused by a firearm. Injuries No. 2 and 3 were simple, and were caused by blunt weapon. All the wounds were bleeding. Injuries No. 2 and 3 could be caused by a fall on the ground. Injuries No. 2 and 3 individually or collectively were not fatal. The injured was examined by this witness, and the certificate Ex. P/8 was issued by him certifying that the injured was in a position to give a statement. His statement was recorded by the police at 6. 00 p. m. The injured made the statement voluntarily. The injured could not sign the statement as his right hand was under drip as glucose saline was being administered to him.
(3.) PW/3, Ram Singh Head Constable stated that on 25/4/1973, he was on duty in connection with the arrangements of the "mela" at Selliserh. At about 3 30 p. m. he heard the rumours that a person has been fired at, and that the person who fired at was a Sardar. When the witness reached the spot of occurrence, he found one person in an unconscious state lying there. He sent the injured to the hospital, and also sent the FIR. He also found an empty of a fired cartridge which he picked up. and gave it to the SHO when he came. He could not state the names of the persons who were near the injured. He learnt that the assailant had run away, and was chased by police constables, Hukam Chand and Lachhi Ram, The witness further stated that he did not incorporate this fact in the First Information Report as he did not consider it necessary. Nobody from the crowd told the witness the name of the accused. All that he was told was that he was Sardar. He also did not state in his statement before the police that he recovered the empty of the fired cartridge. Be sides, the Police Constable Hukam Chand and Lachhi Ram, five or seven other people were also chasing the accused. One Heera Lal told these two police constables that the name of the Sardar was Baghel Singh. Pw/4 Shri G. L. Mahajan was the SDM, Rajgarh on 2/5/73. The identi-fication parade was held by him. He mixed eight other persons alongwith the accused-appellant Baghel Singh. He had tied cloth on the beard of the accused and of the other eight persons. The Police Constable Hukam Chand identified Baghel Singh correctly. Later on, Police constable Lachhi Ram came for identifying the accused, but he could not identify him. He has further stated that he had not written the description of these eight persons in the identification proceedings. Pw/5 Lacchi Ram is police constable. He was on duty on 25/4/1973- At about 3 p. m. , he heard the noise that somebody has pick-pocketed. When he started moving towards the site of occurrence, he heard the report of a fire. He saw that a Sardar of black colour has fired. He started running after hearing the fire. Seeing this, the witness also started running towards the site of occurrence But he could reach there with great difficulty as there was a huge crowd. Police Constable Hukam Chand also came there. The Sardar who fired, reloaded his pistol and then ran away. Lachhi Ram along with Hukam Chand started chasing the Sardar. So many other persons were also chasing him. The Sardar was putting on a green turban, and had a bag in his hand, and was putting on a "tehmat" bearing squares. The accused climbed upon the hill from near the house of Heera Lal Chamar. Heera Lal Chamar told that the name of the Sardar was Baghel Singh, that he was resident of Sawari-ka-bas. The assailant Sardar could not be apprehended that day. The witness could not identify the assailant Sardar in the identification parade in the first attempt. All the persons who were included in the identification parade had a "pagan" on their heads, and the beards were covered with a cloth. The witness denied having stated before the committing Court that he heard the report of the fire, and that the crowd had encircled the accused and the injured. From the public 200 or 250 people were chasing the assailant. Some of these persons were ahead of these two police constables and the other were behind them. He has further stated that when they were chasing the assailant, they could only see the back of the accused, and when the accused used to look on the back side, then only his face could be seen. The witness does not recollect whether the accused had dropped the empty of the fired cartridge at the site or he had taken it with him when he reloaded the pistol. Pw/6 Randheera is a motbir in whose presence the accused took out the bag hidden under the stones, and gave it to the police. In the bag, were found a pistol, two cartridges and a cloth. ;