SHARMA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE brief facts giving rise to this appeal are that a First Information Report was lodged with Police Station Ramganj, Jaipur at the instance of one Ramji Lal S/o. Narayan, who was then posted as Sub Inspector of Police Station Ramganj, Jaipur at 2. 15 P. M. on 16th November, 1999. In the report, it was stated that an information was received about a quarrel between a group of persons in the area of police station Ramganj. On receiving this message, Shri Hulasa Ram, SHO sent complainant Ramjilal and Constable Sedu Ram to the site of the disturbance. It was stated that the SHO Hulasa Ram along with Head Constable Sultan Singh, Ramesh was & Ishwar Singh also followed them on foot. While the SHO Hulasa Ram was making efforts to pacify people, all of a sudden Head Constable Sultan Singh kicked a beggar sitting on the foot-path and overturned `thelas' of some hawkers and scattered their goods and misbehaved with the persons who were passing by. SHO Hulasa Ram repremanded Sultan Singh for this but he became angry. Hulasa Ram again tried to pacify him stating that Ramganj was highly sensitive area and that he should not misbehave with public in such a manner. All of them came back to the police station. SHO asked Sultan Singh and Rameshwar to deposit their self loaded rifles (for short, SLR) in the malkhana. Hearing this, Head Constable Sultan Singh was infuriated and refused to deposit the SLR and went towards the mess situated in back side of Police Station. Suspecting any untoward incident, SHO along with Sepoy Rameshwar and Chhitar followed Sultan Singh and complainant Ramji Lal also followed them. At that time Sita Ram who was taking meals also came out in Varandha. SHO Hulasa Ram was trying to pacify Sultan Singh by addressing him as his son. Suddenly, Sultan Singh turned back and pointed SLR at SHO Hulasa Ram and shouted by saying as to how he (SHO) asked him to deposit the weapon. Sultan Singh also abused SHO and opened fire towards him. First bullet fired by Sultan Singh hit on right hand of SHO Hulasa Ram. Head Constable Sita Ram pulled the SHO towards Varandah. Sultan Singh at that stage fired another shot at SHO with the intention of killing him which, hit him on his back. SHO could hardly move two steps while pressing his chest with hands and fell down behind the room of the head-moharrir. Accused Sultan Singh continued to fire from behind the tin-shed by saying that if anyone tried to catch him, he would shoot him. One such fire also hit a neighbouring house. It was also stated that informant along with Constable Gajraj Singh, Bachhu Singh, Ram Roop and Ram Kumar Singh immediately took the injured Hulasa Ram in a vehicle driven by Constable Mahesh to SMS Hospital, Jaipur where he breathed his last. On the basis of the aforesaid first information report, a case was registered under Section 302 and 307 IPC at police station Ramganj and investigation started. The accused was arrested on the same day. SLR used in the crime alongwith cartridges were also seized. Statement of all these who were present in police station were recorded by Dy. Superintendent of Police Ramganj Circle, who was Investigating Officer. Site plan of the place of incident was also prepared on the same day. Some fired and unused cartridges were also recovered from the site of incident. Panchnama of the dead body of Hulasa Ram was also prepared. Clothes of the deceased were sized and SLR used in the crime was also seized from the accused Sultan Singh. Copies of Rapat Rojnamcha dated 16. 11. 99 Arm No. 110, 111, 117 & 151 Police Line and copies of Rojnamcha, Police Station Ramganj were also simultaneously seized. Bed-head ticket of deceased Hulasa Ram was seized from hospital and record of the malkhana was also seized. Dead body of the deceased Hulasa Ram was sent for post-mortem. After completion of investigation, the charge-sheet against the accused appellant under Section 302 and 307 IPC was filed. The prosecution has examined 19 witnesses in support of its case and has exhibited 48 documents. The prosecution also got exhibited 9 articles. Accused in his defence examined 4 witnesses and got 12 documents exhibited. Learned trial Court after hearing arguments of both the parties and on examination of evidence on record, convicted the accused appellant under Section 302 and sentenced him to undergo rigorous imprisonment for life under Section 302 IPC with fine of Rs. 10,000/-, in default of payment of fine, he was required to further undergo rigorous imprisonment of one year. He was also convicted under Section 307 IPC and was sentenced to undergo rigorous imprisonment for 10 years with fine of Rs. 5,000/- and in default of payment of fine, he was required to further undergo six months' rigorous imprisonment. feeling aggrieved by the aforesaid judgment, the accused appellant has preferred the present appeal.
(3.) WE have heard the argument advanced by Shri Biri Singh Sinsinwar, learned counsel appearing for the accused appellant and Shri R. P. Kuldeep and Shri a. K. Sharma, learned Public Prosecutors and perused record. Learned counsel for the appellant Shri Biri Singh Sinsinwar argued that the trial Court has erred in not taking into consideration Rojnamcha report No. 1624 Ex. P. 17, No. 1625 Ex. P. 18 & N. 1627 Ex. P. 20 in its true perspective. He contended that there was no entry in the rojnamcha report regarding issuance of SLR to the accused appellant nor was there any other evidence on record to prove that the accused was in possession of the fire air. Firearm in the Police Station is issued only when a police personal is going to discharge duties and on return from such duties he is required to deposit the same with malkhana. He further argued that Ex. P. 20 did not bear signature of the Incharge of the Police Station Ratan Singh and also SHO Hulasa ram. Therefore, the case of the prosecution that Ratan Singh took the firearm was falsified and there was no mention in any of the Rojnamcha Ex. P. 17 and Ex. P. 20 about the number of times accused appellant allegedly fired. He further argued that the learned trial Court has erred in not taking into consideration that even though Senior Police Officers immediately arrived at the Police Station, Ramganj when the alleged incident took place, yet the first information report was not lodged for two & half hours. The prosecution has failed to give any satisfactory explanation about this undue delay. Statement of PW. 19 Shankar Lal Circle Officer who conducted the investigation itself cast serious doubt about the presence of the so called eye witnesses at the time of incident. Evidence of PW. 1 Ramji Lal S. I. , PW. 2 Mahaveer Singh, PW. 3 Jabar Mal Head Constable also cast serious doubt about their presence at the scene of occurrence. He further argued that no sanctity can be attached to the alleged verbal orders of issuance of SLR to the accused appellant. No firearm can be taken out from the strong room without such arm being first issued in the name of concerned police personnel. In the present case, while the SLR allegedly used for commission of crime was on record issued in the name of some other person, but on evidence, the prosecution was now claiming that it was in the hands of the appellant which hardly inspire any confidence. ;