BHATNAGAR, J. - (1.) APPELLANT Phindersingh was tried for the offence under ss. 302 and 449 I. P. C. and ss. 25 and 27 of the arms Act by the Sessions Judge, Sri Ganganagar by the Judgement dated July 31, 1974, he was held guilty for the aforesaid offences and sentenced to imprisonment for life on the first count, 7 years' rigorous imprisonment and a fine of Rs. 500/- in default of payment, to undergo simple imprisonment for 2 months on the second count and rigorous imprisonment for three years' on the third count. All the substantive sentences were ordered to run concurrently. Feeling aggrieved by his conviction and sentence, he has preferred this appeal in this Court.
(2.) BRIEFLY stated the facts of the case giving rise to this trial and conviction of the appellant and the present appeal are as under: In the intervening night on 11. 8. 79 and 12. 8. 79 deceased Avtarsingh was sleeping in the courtyard of his house with his wife and children. At about 3. 30 A. M. , P. W. 2 Mst. Balwant Kaur wife of Avtar Singh awoke on hearing the noise of gun fire. She saw somebody on the roof and thereafter, jumping from the back side of the roof. Balwant Kaur called P. W. 1 Harbans Singh who was sleeping in his Dhani at a Distance of about 60 to 70 Pawandas from her house. Harbans Singh also heard the report of the gun shot from his house and on being called by Balwant Kaur rushed to the house of the latter. Balwant Kaur informed him that her husband Avtar Singh had been shot. She asked him to call Thanasingh, Guljarsingh and Gurdeosingh. Harbans Singh went out and called all those persons. Harbans Singh and others are said to have seen the foot print on the roof, Thanasingh, Guljarsingh, Jangirsingh and Harbans singh took Avtarsingh to the Hospital, Sadul Shahar but he succumbed to the injuries received by him at a distance of about 5 Murabbas from the village. Avtarsingh was brought back to his home and his dead body was placed on the cot at the same place where he was sleeping at the time of the incident. Harbans Singh went to Police Station, Sadul Shahar. P. W. 14 Om Prakash, Head Constable and Incharge of the Police Station at the relevant time recorded the information Ex. P. 4 given by Harbans Singh and accompanied him to the site. Om Prakash prepared the Inquest Report and the site plan. He recovered pieces of wad and a pellet lying near the cot of the deceased. He also recovered one empty cartridge case Ex. P. 12 from the roof of the Kotha. A constable was deputed to have a watch of the foot marks visible on the roof. P. W. 13 Dr. Bahadur Singh conducted the autopsy over the dead body of Avtar Singh on 12. 8. 73 and following external injuries: (1) Four ante-mortem entrance gunsot wounds were present on the body. Two of them on the chest, one below and middle to left clavical and other one above the lateral and clatrical of size 1/2" x 1/4" x oblically downwards towards the right in the thoracic cavity. On post-mortem the bullet was found in the right thoracic cavity which was full of coagulated blood. The heart was raptured. Both bullets passed through the right atrium and entered in the thoracic cavity. 2. Another wound on the left hand Dorsal surface near the root of thumb of size 1/2" x 1/4"x1-1/2" obliquely towards the palm. 3. Another on the right elbow joint 1/2" x 1/4" x deep reached up to surface below the skin. " P. W. 11 Bhagwansingh, A. S. I. , took the investigation in his charge in the same evening. The Doctor took out all the bullets from the wounds of Avtarsingh. He prepared the postmortem examination report Ex. P. 1. In the opinion of the Doctor, the cause of the death was due to rupture of heart leading to haemorrhage due to gun shot The injuries were found sufficient in the ordinary course of nature to cause death. P. W. 11 Bhagwansingh, A. S. I. took the investigation in his hands in the same evening and made efforts to trace out Phindersingh. On 14 8. 1973 S. H. O. P. W. 15 of that police station took charge of the investigation. Moulds were taken by Bhagwansingh under the supervision of Bhanwarlal. On 22. 8. 73, appellant Phinder Singh was arrested by S. H. O. Bhanwarlal vide memo Ex. P. 24. Foot marks lifted from the roof of the house of Avtarsingh were sent to Finger Print Expert. On 23. 8. 73, Phindersingh furnished information Ex. P. 16 for getting recovered one 12 bore pistol from the field. In pursuance of that information, S. H. O. Bhanwarlal got recovered one 12 bore pistol Ex. P. 16 loaded with a 12 bore cartridge case from the field of the appellant vide memo Ex. P. 15. On 28. 11. 73, the packet containing the empty cartridge, the pistol and the live cartridge, the pistol and the pellets were sent for examination to the Balletic Expert. The report of the Central Forensic Science Laboratory, C B. I. cum Assistant Chemical Examiner to the Govt. of India, New Delhi, Police Forensic Science Laboratory, Jaipur, Serologist's report and Ex. P. 34, 35, 36 and 46 respectively. Upon completion of necessary investigation, chargesheet against the appellant was filed in the Court of Munsiff Magistrate, Hanumangarh who committed the appellant to stand his trial in the Court of Sessions Judge Sri-Ganganagar. The learned Sessions Judge chargesheeted the appellant for the aforesaid offences and recorded his plea, He denied the charges and claimed to be tried. The prosecution examined 19 witnesses to substantiate its case. The appellant in his statement under s. 313 Cr. P. C. totally denied the allegations and stated that Avtarsingh was his near relative. A false case has been concocted against him because Avtarsingh's brother-in-law was Head Constable. No defence witness was examined. The learned trial Judge held the prosecution case established and passed the judgment under appeal. We have heard Mr. ML. Garg, learned counsel for the accused-appellant and Mr. L. S. Udawat, learned Public Prosecutor for the State. The prosecution has led direct as well as circumstantial evidence in the case. The direct evidence is that of Balwant Kaur. The circumstances brought on record against the appellant are recovery of empty cartridge case from the scene of occurence, the recovery of the pistol at the instance of the accused; motive; accused remaining absconding for a few days; extra-judicial confession and the foot moulds lifted from the roof of the house of deceased Avtarsingh tailing with the specimen foot mark of the appellant taken in the presence of the Magistrate and sent to Foot Print Expert and the report of the Foot Print Expert to the effect that foot prints were of the same person.
(3.) BALWANT Kaur is the wife of the deceased Avtar Singh. There is no dispute on the point that she was living in the same hose in which deceased Avtarsingh on the fateful night was sleeping. The pertinent question is whether she had identified Phindersingh as the assailant. The version given by BALWANT Kaur is that on hearing the report of the gun fire, she awoke and at once threw a glance towards the roof and saw a person there who appeared to her to be like Phindersingh The words used by her are 'chhat PAR ADMI MUJE PHINDER JESA LAGA'. Learned counsel for the appellant strenuously contended that Phinder Singh was residing in the neighbourhood of Avtarsingh and if, he would have been the assailant, there could not be any difficulty for Balwant Kaur to identify him. According to the learned counsel, the version of the witness that the man on roof was like Phindersingh clearly indicates that she could not recognise the person on the roof. Learned Public Prosecutor, on the other hand, contended that just on Harbans Singh reaching the site Balwant Kaur mentioned that the assailant appeared to her like Phinder and so, the learned trial Judge has rightly believed the prosecution case that Balwant Kaur identified the assailant correctly and what was meant by the term 'phinder JESA LAGA' is that he was Phinder. We have carefully examined the statement of Balwant Kaur. She has repeatedly stated that the man on the roof appeared to her like Phinder. She was no where stated that it was Phinder, whom she had seen on the roof of her house and retraced from there when she looked towards the roof. The checks available on record are the statements of P. W. 1 Harbans Singh and P. W. 4 Thana Singh. Harbans Singh is the first person to reach the site at the call of Balwant Kaur. It is who had gone to the Police Station to lodge the report. According to this witness, when he went to the house of Avtarsingh, Balwant Kaur told him that Avtarsingh has been shot and so he may call people from the locality. In his cross-examination, he has stated that Balwant Kaur did not tell him the name of any assailant. He further stated that he remained there at the bouse of the deceased for an hour or one and half hour. According to him, Gurdeosingh, Guljarsingh and Jangir Singh had also remained with him there and Balwant Kaur did not name the assailant even in their presence. The witness further stated that at that time, Balwant Kaur did not name any assilant but when the police came, she named Phinder Singh. It is important to note that name of Phindersingh does not find place in the F. I. R. and for that reason, the memos prepared in the case bore the title State V. Unknown! Learned Public Prosecutor submitted that Harbans Singh has been declared hostile and, therefore, his statement that Balwant Kaur did name the assailant should not be believed. It is to be noted that Harbans Singh has been disowned by the prosecution on the point of recovery of the empty cartridge from the roof because he has not supported the prosecution on that point. So far as the lodging of the F. I. R. by this witness is concerned, no question was asked in cross-examination by the learned Public Prosecutor regarding Balwant Kaur's disclosing the name of the assailant prior to his leaving for the police station to lodge the report. ;