SHYAM SUNDER BYAS,J. - (1.) SINCE these two criminal appeals are directed against one and the same judgment of the learned Sessions Judge, Bikaner dated April 25, 1979, they were heard together and are decided by a single judgment. By the judgment aforesaid, the respondents Banwari, Kishna Ram Chadra s/o Moti Ram, Ram Kishan and Ram Lal were acquitted of the offences under Sections 148, 452 and 302/149 IPC while accused Ram Ratan was convicted under Sections 302 and 452 IPC and Section 25(a) of the Arms Act and was sentenced to imprisonment for life and rigorous imprisonment for one year and four months on the respective counts. Sentences were directed to run concurrently. Accused Ram Ratan has come up in appeal to challenge his convictions and sentences while the State has come against the acquittal of the aforesaid five respondents. It is in this way that we have two appeals before us.
(2.) SUCCINCTLY stated, the prosecution case runs as under. The deceased victim Laluram was the brother of PW 4 Hetram and husband of PW 8 Mst. Rameshwari. They are residents of village Mukam Police Station Nokha District Bikaner. Accused Ram Ratan and the five acquitted accused, who are closely related inter se, are also residents of the same village. There was deep seated enmity between these two factions. Various criminal cases were instituted by them against each other, in which some of them were convicted and sentenced. The deceased Laluram was also one of those persons who were convicted. Four or five months before this occurrence (March 24, 1977), Laluram was released on bail. This further annoyed the members of the accused party. In the night of March 24, 1977, Laluram was sleeping on a cot on the Chowki (Plat -form) situate contiguous to the Kotha of his house. His wife Mst. Rameshwari was sleeping in the Kotha while his brother Hetram was sleeping on the roof of Kotha. At about 11.00 p.m., the accused persons (the appellant Ram Ratan and the acquitted accused) along with one Ram Chandra s/o Hamira Ram (who was also a close relative of the accused persons) went together to the house of Laluram. Accused Ram Ratan had a pistol with him, accused Ram Chandra s/o Hamira Ram had a gun, accused Ram Chandra s/o Motiram and accused Kishna Ram had accused Ram Lal and accused Banwari had Shailas. Accused Ram Kishan had a Lathi. The accused stood around the cot of Laluram. Ram Ratan fired the pistol on the chest of Laluram. Laluram instantly got up but immediately fell down of the Chowki. Accused Ram Ratan took out the spent cartridge from his pistol and dropped it down there. Accused Ram Chandra s/o Hamira Ram fired his gun in the air. Mst. Rameshwari raised cries. The accused persons threatened her with dire consequences in case she dared to come out. Hearing her out cries, Murliram (PW 2), whose house is situate nearby, came there. Seeing him, the accused persons ran away. When the accused went away, Hetram (PW 4) came down from the roof. There was profuse bleeding from the wounds of Laluram and the clothes he was wearing got drenched with the blood of his wounds. Hetram (PW 4) went to the Dhani where his father resided. From there, both of them went to Police Station, Nokha where Hetram verbally lodged a report Ex. P. 1 of the occurrence at about 5.30 A.M. On March 25, 1977. The police registered a case and proceeded with investigation. The Station House Officer Nichhetar Singh arrived on the scene of occurrence and prepared the site plan and inquest report Ex. P.2. The empty cartridge -case lying on the spot was seized and sealed. The blood -stained soil and the blood -stained blanket, with which the deceassed was covering himself at the time of the incident, were seized and sealed. The post -mortem examination of the dead body of Laluram was conducted on March 25, 1977 by PW 7 Dr. Dhanraj Chhalani the then Medical Officer Incharge. Primary Health Centre Nokha Dr. Chhalani found the following ante -mortem injuries on the dead body of Laluram: (1) Lacerated irregular wound of entrance of bullet or chharra 3 -1/2' cm. x 3 cm. on dorsum of left palm just below left little finger. The direction of the wound was upward; (2) Multiple five wounds of exit of Chharra nearly 3/4 cm. x 3/4 cm. on left palm; (3) Terminal phalanx of little and ring finger of left hand crushed; (4) There were multiple, redish black burn maroon dorsen of left palm, vertically half of ulna side; (5) There were five gun shot wounds of about 1/3 cm. x 1/3 cm. on chest left side, 1 cm. away from border of sternum as shown in figure; (6) The area about 15 cm. x 10 cm. as shown in figure was having redish black burn spot. He also found five pellets in the dead body of Laluram. These five pellets were seized and sealed. One of the wounds contained woollen fibre and two round pieces of card -board. They were also seized and sealed by the doctor. Dr. Chhalani was of the opinion that the cause of death of Laluram was servere internal haemorrahage due to the laceration of heart and lungs by gun shot injuries. The report of the post mortem prepared by him is Ex. P. 19. Accused Ram Ratan was arrested on April 5, 1977 and in consequence of the disclosure statement made by him on the same day, one 12 bore pistol and two live cartridges were recovered lying concealed in the soil. The other accused persons were also arrested. The various articles were sent for scientific examination to the State Forensic Science Laboratary, Jaipur. The 12 bore pistol recovered at the instance of the accused was found in working order. The cartridge -case found on the spot, as per the opinion of the Forensic Science Laboratory could have been fired from the 12 bore pistol recovered at the instance of the accused. After when the investigation was over, the police submitted a challan against accused Ram Ratan, Banwari, Kishnaram and Ram Chandra s/o Motiram in the Court of the Chief Judicial Magistrate, Bikaner. PW 4 Hetram made a request to the Chief Judicial Magistrate to take cognizance against Ram Kishan, Ram Lal and Ramchandra s/o Hamira Ram. His request was disallowed. PW 4 Hetram thereupon lodged a complaint against the aforesaid three persons in the Court of Munsif and Judicial Magistrate, Bikaner. Ramchandra s/o Hamira Ram meanwhile passed away. The police also submitted a challan against Ram Ratan for an offence under Section 25(a) of the Arms Act in the Court of Judicial Magistrate (1), Bikaner. All these three cases were committed for trial, to the Court of Sessions Judge, Bikaner by the respective Magistrate. The learned Sessions Judge amalgamated all the three cases and conducted a joint trial. Charges under Sections 302, 148 and 452 IPC and Section s under Sections 147, 452 and 302/149 IPC were framed against the remaining five accused Banwari, Kishna Ram, Ramchandra s/o Moti Ram, Ramkishan and Ramlal. All of them pleaded not guilty and faced the trial. According to them, they were falsely implicated on account of deep seated enmity existing between the two factions. In support of its case, the prosecution examined nine witnesses and filed some documents. In defence, no evidence was adduced by the accused. Out of nine witnesses, PW 4 Hetram and PW 8 Mst. Rameshwari had claimed to have seen the occurrence. PW 2 Murli Ram claimed to have seen the accused persons leaving the scene of occurrence. On the conclusion of trial, the learned Sessions Judge held PW 2 Murliram, PW 4 Hetram and PW 8 Mst. Rameshwari as witnesses of truth as against accused Ramratan. Accused Ramratan was consequently convicted and sentenced as mentioned at the very out set. The learned Sessions Judge accepted the presence of the five acquitted accused persons, but was of the opinion that their mere presence on the place of occurrence was not sufficient to seek their conviction. They were consequently acquitted. The grievance of the accused Ramratan is that he has been wrongly convicted while the State has the grievance that the five accused respondents have been wrongly acquitted.
(3.) WE have heard Shri Doongar Singh learned counsel appearing for accused Ramratan, Shri Niyazuddin Khan the learned Public Prosecutor and Shri V.N. Mathur and Shri B. Advani the learned counsel appearing for the acquitted accused respondents. We have also gone through the case file carefully.;