S. S. BYAS, J. - (1.) THE appeal is directed against the judgment of the learned Additional Sessions Judge (1), Hanumangarh dated February 13, 1981, by which the appellant Nathasingh was convicted under section 302, I. P. C. and 27 of the Arms Act and was sentenced to imprisonment for life and three years* rigorous imprisonment on the respective counts.
(2.) THE prosecution case is short and simple and in succinct it is as follows:- Azayabsingh - the deceased victim in the case - was the son of PW 1 Gulabsingh Jat Sikh and cousin of PW2 Sukhdeo Singh. He was living with his parents in village Chandro P. S. Hanumangarh district Ganganagar. THE accused is also a resident of the same village. Azayabsingh was convicted under section 307, I. P. C. and was sentenced to five years' rigorous imprisonment for making an attempt on the life of the appellant. THE appellant due to this attempt on his life by Azayabsingh, started harbouring ill-will against him. Azayabsingh went in appeal. THE appeal was admitted and his sentence was suspended during its pendency. He was released on bail a few months before the occurrence. This further fanned the fire of enmity. At about 1. 00 P. M. on October 5, 1979, Azayabsingh was sitting under a Shisham tree in an open place alongwith Gurdeosingh, Laxmansingh, Nidensingh and PW 2 Sukhdeo Singh. Azayabsingh was sitting in a hunched position with his thighes touching his chest. THE accused emerged from the house of one Safi Mohammed situate nearby and came to the place where these persons were sitting. When he remained only two or three feet away from Azayabsingh, he (accused) took out a pistol from the fold of his Loongi and fired a shot at Azayabsingh. THE shot hit the left intra-scapular region and pierced the left side of chest. It further hit his left thigh antero-surface 6 inches below the ingunial line. Azayabsingh got up and started running, but he soon fell down. His father Gulabsingh (PW 1), who was returning from the field to his house, on seeing the incident reached there. He and those who were sitting near Azayabsingh followed him and tied his turban around the chest wound. THEy lifted him to take to his house, but he succumbed to the injuries. THE accused, after firing the shot, took to heels. PW 1 Gulabsingh reached Police Station, Hanumangarh Junction and verbally lodged report EX. P. 1 of the occurrence at about 2. 00 P. M. on the same day. THE police registered a case and proceeded with investigation. THE A. S. I. Police Kartarsingh (PW 4) immediately arrived on the spot and prepared the site plan EX. P. 2. He also seized the blood-stained soil from the place where the deadbody of Azayabsingh was lying. He also noticed some drops of blood on the place where Azayabsingh had fallen down after running a few feet. Since those drops of blood were in miniature, they could not be lifted. THE A. S. I prepared the inquest report of the victim's deadbody. THE autopsy of the victim's deadbody was conducted at about 5. 15 P. M. on the same day by PW 3 Dr. Narendra Godara. He noticed the following ante-mortem injuries on the victim's deadbody:- "1) Wound of entry, lacerated wound 3/8" x 1/4" probe could be passed 1" deep-margin inverted-scotching and Wakening present around the wound. Lictim from above downwards-situated on left inter scapular region at the level of 4th throasic spine 1-1/4" from mid line. 2) Wound of exit-lacerated wound from left side of chest anteriorly in 7th inter coastal space 2-1/4" from midsteral line 1-1/2" below and medial to left nipple size 5/8" x 1/4" probe could be passed 1" in depth-margin everted-no blackening or scorching present. THE wounds No. 1 and 2 were bleeding on examination. THE horiz-antal distance between wounds No. 1 and 2 was of 6 1/2". On dissection, the wounds No. 1 and 2 were seen communicating with each other. 3) Wound of entry-Lacerated wound on left side anterio-medial surface 6" below the inguinal line. Size 3/8" x l/7" probe could be passed through and thigh-margins inverted-blackening and scorching present. 4) Wound of exit-Lacerated wound on left thigh posterior surface 7" above left knee line-Size 1/2" x 1/4" probe could be passed through and through margins everted-No blackening or scorching present. THE wounds were bleeding on examination. THE wounds Nos. 3 and 4 were communicating with each other and the distance between both such wounds was of 4-1/2". THE wound No. 3 is situated 1 "above wound No. 4. THE direction is above downwards for wound Nos. 3 and 4". The doctor was of the opinion that the death had taken place due to fire-arm injuries caused to vital organs like heart and lungs. The post-mortem examination report prepared by him is EX. P. 6. The blood-stained clothes of the victim were seized and sealed. The accused was arrested on October 6, 1979 and in consequence of the disclosure statement made by him on the same day, one pistol, two cartridges and one empty-cartridge-case were recovered. The empty cartridge-case was found in the barrel of the pistol. These articles were seized and sealed. The various articles were sent to the State Forensic Science Laboratory, Jaipur and Serologist. Human blood was found on clothes of the deceased. In respect of pistol recovered at the instance of the accused, the opinion received is that it has been used in firing. On the completion of investigation, the police submitted a challan against the accused in the Court of Munsif and Judicial Magistrate, Hanumangarh, who in his turn committed the case for trial to the Court of Sessions. The Additional Sessions Judge framed charges under section 302, I. P. C. and Section 27 of the Arms Act against the accused, to which he pleaded not guilty and faced the trial. Denouncing the whole prosecution story as false and fabricated piece of concoction, the accused claimed absolute innocence. According to him, he has been falsely implicated due to the long-standing enmity between him and the deceased. In support of its case, the prosecution examined 8 witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of trial, the learned Additional Sessions Judge found both the charges duly proved against the accused. The accused was consequently convicted and sentenced, as mentioned at the very out-set. He has come-up in appeal to challenge his conviction. We have heard the learned counsel for the parties and gone through the case file carefully. There is no room for doubt that the death of Azayabsingh took place on account of the fire-arm injuries. Mr. Garg, the learned counsel appearing for the appellant did not challenge the opinion of Dr. Godara (PW 3) relating to the cause of death of the victim. We need not, therefore, touch the testimony of Dr. Godara (PW 3) on this point. It is altogether another matter for consideration whether the opinion of doctor Godara (PW 3) can be accepted that both the entry wounds caused to the deceased-victim were the results of a single shot. We may point out that the entire prosecution case against the appellant rests squarely on the evidence of two eye witnesses; PW 1 Gulabsingh and PW 2 Sukhdeo Singh, each of whom has claimed to have seen the whole occurrence from its commencement to the end. PW 1 Gulabsingh is the father and PW 2 Sukhdeo Singh is the cousin of the deceased victim. Sukhdeo Singh (PW 2) was sitting in the open place under the Shisham tree alongwith Bhajan Singh, Laxmansingh, Nidansingh and deceased Azayabsingh when Azayabsingh was shot at by the appellant. PW 1 Gulabsingh was returning to his house from the fields. When he happened to pass at the place where the aforesaid persons were sitting, he saw the accused emerging from the house of Safi Mohammed. The accused took out a pistol from the fold of his Loongi and fired a shot towards Azayabsingh. It was PW 1 Gulab Singh who immediately went to Police Station and lodged report Ex. P. 1 of the occurrence within an hour of the incident. He has given the same version in F. I. R. Ex. P. 1 which was later on stated by him during trial. The name of PW 2 Sukhdeosingh has been mentioned in Ex. P. 1. The F. I. R. Ex. P. 1 was received in the Court of Munsif& Judicial Magistrate, Hanumangarh at about 4. 10 P. M. on the same day. Taking all these facts into consideration, the learned Additional Sessions Judge accepted the testimony of those two witnesses as true and reliable. The appellant was convicted solely on the strength of what they testified.
(3.) IN assailing the conviction, it was strenuously contended by Mr. Garg that PW 1 Gulabsingh and PW 2 Sukhdeosingh have been falsely introduced as ocular witnesses and they have been wrongly taken as witnesses of truth by the trial court. While elaborating and building is arguments, Mr. Garg contended that the claim of these witnesses to have seen the incident is wholly untrue and unfounded. IN an attempt to show that all these witnesses have been falsely introduced, Mr. Garg raised the following points :- (1) No blood was found at the place 'a' in site plan Ex. P. 2 where, according to these witnesses, Azayabsingh was shot at. (2) No trail of blood was found from place 'a' to place 'b' where the victim is alleged to have fallen after running a few steps. At place 'b' in Ex. P. 2 also, no blood was found. (3) According to PW 3 Dr. Godara, the victim must have met the death instantaneously on the spot on receiving the gun-shot injuries. He was not in a position to run from place 'a' to 'b'. The evidence of these two witnesses that the deceased ran from place 'a' to place 'b' on sustaining the injuries, thus, stands completely falsified and that in itself is sufficient to render them unworthy of credit and reliance. (4) As per medical evidence of PW 3 Dr. Godara, two entry wounds caused by fire-arm were found on the victim's deadbody. Both the entry wounds had blackening and scorching. They were, therefore, the results of two shots. The injury on left thigh of the victim could not be caused by the shot which they caused the injury on scapular region. According to these two eye witnesses, only one shot was fired by the accused. Since it is a case of two gun-shots and the witnesses have stated only about one gunshot, the inevitable inference would be that they had not seen the occurrence; (5) Some of the material witnesses, who were admittedly present at the place of incident and were sitting alongwith the deceased, have been with held by the prosecution; (6) The victim had exit wounds also. It shows that the bullet with which the victim was hit, came out of the victim's body. But no bullet was found at the place of incident or nearabout it. That suggests that Azayab-Singh was shot at some other place and his body was later on brought to place 'c' in Ex. P. 2 where it continued to lie till the arrival, of police, and (7) The opinion of PW 3 Dr. Godara that both the entry wounds of the victim could be caused by a single gun-shot if he was silting in a hunched position with his thighes touching his chest, is not correct and dependable. The very fact that blackening and scorching were found on both the entry wounds, is sufficient to hold that they could not be results of a single shot. Mr. Garg contends that in view of these various circumstances, the Court below crept into an error in taking these two eye witnesses as true and reliable. While controverting the contentions of Mr. Garg, it was argued by the learned Public Prosecutor that the approach of the court below was perfactly correct. The absence of blood at place 'a' or the trail of blood from place 'a' to 'b' has been sufficiently explained. The opinion of Dr. Godara (PW3) is not open to any challenge. The pistol recovered at the instance of the appellant has been found in working order by the Ballistic Expart. The other persons; who were sitting with the deceased at the place of occurrence, were also his close relatives. They have not been with-held with any oblique motive. The FIR was lodged promptly within an hour of the incident by the eye witness Gulab Singh (PW 1 ). He had no time to cook and manipulate the matter and to introduce a false story against the appellant in Ex. P. 1. When all these factors are taken together into consideration, it cannot be said that PW 1 Gulab Singh and PW 2 Sukhdeo Singh have been falsely introduced as ocular witnesses of the incident, we have bestowed our thoughtful consideration to the rival submissions. It would be proper to deal with the contentions of Mr. Garg at seriatim. It is true that according to eye witnesses, Azayabsingh was shot at place 'a' in site plan EX. 2. No blood was found at place 'a'. It is also true that no trail of blood was found from place 'a' to place 'b' in EX. P 2 where the victim fell down after running a few steps. The explanation given by the eye witnesses is that as soon as Azayabsingh received the injuries, he got up and started running. He fell down at place 'b'. Now, the deceased was wearing a Loongi on the waist and lower part of his body. The injuries sustained by him were in muscular regions. When one receives the fire-arm injuries, blood does not flow in torrents so as to drip down like water dripping down on the opening of a tap. In such a case, the blood trickles down in drops. Since the victim immediately got up on receiving the injuries and started running and he was wearing a Loongi, the blood trickling down from his wounds was soaked by his Loongi. That satisfactorily explains as to why no blood was found on place 'a' on the trail of blood was not found from place 'a' to 'b' in site plan EX. P. 2. We, thus, find no force in the contention of Mr. Garg that the absence of blood at place 'a' or the absence of the trail of blood from place A' to 'b' renders the testimony of eye witnesses suspicious. ;