KANTA BHATNAGAR, J. - (1.) THREE respondents viz., Alim, Kamiya and Haji Aliser along with one Sadaka were tried by the learned Sessions Judge, Baloira for the charges under Sections 302/34 and 323 IPC. The allegation against the appellants was that on 19 -9 -1975 they tried to take the cattle of deceased Meerhasan in the field of Alu which was objected by Meerhasan. Aliser is said to have instigated the four accused to kill Meerhasan at which Alim fired the shot which injured Meerhasan at his chest. Meerhasan is said to have fallen down. It was also alleged that Kamiya co -accused caused injuries to Bhaikhan who had also come at the site to help Meerhasan. When the matter was reported to the police investigation proceeded and the broken gun was recovered from the site. Kamiya is also said to have sustained injuries in this incident. After investigation the challan against three respondents and Sadaka was filed in the court of Munsif and Judicial Magistrate, Barmer. The learned Magistrate committed the case to the court of Sessions Judge, Balotra. The learned Sessions Judge after recording the plea of the accused and their denial thereof proceeded with the trial
(2.) PROSECUTION examined 13 witnesses in all. The accused in their statements totally denied the allegations levelled against them and put the defence that the cattle was in the field of Aalu which was cultivated by Kamiya and his father. It was stated that the gun was with Bhaikhan and when Bhaikhan tried to fire, Kamiya resisted to that attempt and in that process Bhaikhan sustained injuries on his hands and the gun went off and caused injuries to Meerhasan which resulted in his death. It has also been stated that Kamiya sustained injuries at the hands of Meerhasan. Six witnesses were examined to substantiate the defence plea. The learned Sessions Judge did not believe that the prosecution case was brought home from the statements of the prosecution witnesses. The learned Sessions Judge rather considered the defence story to be more weighty and held the accused not guilty and acquitted them of the charges levelled against them. The State felt aggrieved by the order of acquittal prayed for leave to appeal. Leave to appeal against accused Sadaka was refused but it was allowed for the respondents Alim, Kamiya and Haji Aliser. Learned Public Prosecutor strenuously contended that when there was specific evidence of Kushal Singh PW 11 regarding the gun, alleged to be the weapon of offence belonging to him and he gave it to Alim for being taken to Majid at Barmer for repairs, the learned Sessions Judge should not have believed the defence version that the gun was with Bhaikhan and it was in an accidental firing that Meerhasan was injured. The learned Sessions Judge has discussed in detail the evidence of Kushal Singh and we are in perfect agreement with the conclusion arrived at by the learned Judge that Kushalsingh's evidence was an after thought for the prosecution and from that evidence it cannot be believed that the gun of Kushal Singh was given by him to Alim. It is pertinent to observe that accused Alim was arrested on 21 -9 -1975, the next day of the occurrence. Kushal Singh was examined on 19 -10 -1975, about a month thereafter. Kushalsingh has stated that he got a letter written by his father addressed to Majid and gave the same and the gun to Alim for getting it repaired. The defence version about this letter being written subsequent to the arrest of the accused finds support from the statement of Kushalsingh. Kushal Singh has stated that he went to Alim on the day next of his giving the gun to him but Alim was not available. He admitted that it was after a month or more that his statement was recorded by the police. He also admitted that he did not try to find out as to what happened to this gun within the period he gave it to Alim and his statement was recorded by the police. He has stated that he was illiterate and the letter Ex. P 5 was got written by his father. His father has not been examined. So far as presence of Bhaikhan at the site is concerned it is not denied by the defence. His injuries have also been admitted by the accused. It is relevant to observe that the injuries sustained by Meerhasan are on his left palm and reverse of the palm The defence case is that when Bhaikhan wanted to use the gun Kamiya gave a Danda blow on his hand which made the gun fall down. The medical opinion about the range of firing corroborates the defence version that injuries were sustained from a short range. The defence witnesses viz. DW 5 Jogaram and DW 6 Kala are the neighbourers of the field of Aalu which was under cultivation with Alim and his father. Those witnesses have stated that they had seen Bhaikhan and Meerhasan going to the field of Aly where the cattle was and at that time Bhaikhan was having a gun with him. The injury sustained by Bhaikhan at his hand and the statements of DWs 5 and 6 are important factors to substantiate the defence version. The learned trial Judge has discussed the evidence in detail and in our opinion has appreciated the statements properly. The order of acquittal is based on sound reasonings and calls for no interference.
(3.) THE appeal filed by the State has no merits and is dismissed.;