BYAS, J. - (1.) By his judgment dt. Sept. 16, 1980 the learned Sessions Judge, Pratapgarh convicted the accused Jagdish Chandra under S.302, I.P.C. and S.27 of the Arms Act and sentenced him to imprisonment for life with a fine of Rs. 500/-, in default of the payment of fine to further undergo three months' rigorous imprisonment on the first count and three years' rigorous imprisonment on the second count. Sentences were directed to run concurrently. The accused has come-up in appeal to challenge his conviction.
(2.) Abdul Rahim - the deceased victim in the case - was a resident of Basai P.S. Vijaypur district Chittorgarh. The accused is also a resident of the same town. He had however, migrated to Chittorgarh, but at times used to come to Bassi. When the accused was at Bassi, he used to live in a shop shown by digit '8' in site plan Ex. P3. At about 8.30 a.m. on May 12, 1979, PW 2 Rajmal Teli was taking his bullock-cart loaded with grass-bundles to his house. The cart was moving from North to South. Abdul Rahim came from behind the cart and proceeded further keeping himself on the left-side of the cart. It is alleged that at that very time the accused came out from his shop with a gun in his hand, took position in between the bullock's feet and the wheel of the cart and fired a shot at Abdul Rahim. Abdul Rahim fell down. Rajmal (PW 2) raised cries. The accused went back in his shop and again came out with a gun. He then went towards Abdul Rahim and fired another shot with his gun. The accused returned to his shop, placed his gun there and came out. He then disappeared. Abdul Rahim passed away instantaneously on the spot. Hearing the gun-shots, PW 1 Noor Mohammed - Head Constable, Police Out Post, who was on the general round with one Police Constable Pushkar Lal - came running to the spot. Rajmal (PW 2) told them that Abdul Rahim was shot dead by the accused Jagdish Chandra. Noor Mohammed posted Pushkar Lal to keep a watch on the victim's dead body. He drew up report Ex. P 1 and sent it to Police Station, Vijaypur, with one Roop Lal Kalal. Report EX P 1 was received at the Police Station at about 9.30 a.m. A case under S.302, I.P.C. was registered. The Station House Officer Nana Lal (PW 8) arrived on the spot at about 10.30 a.m. and prepared the inquest report of the victim's dead body. Since the accused was living at Chittorgarh, the message to arrest him was flashed. The Deputy Superintendent of Police Mr. Liyakat Ali (PW 18) also arrived on the spot. The site was inspected and blood-stained soil from there was seized and sealed. The post-mortem examination of the victim's dead body was conducted at about 4.00 p.m. by PW 9 Dr. Mansukh Lal - the then Medical Officer In charge, Government Dispensary, Bassi. The doctor noticed the following ante-mortem injuries on the victim's dead body : - "1) Lacerated wound on the left temporal region, margins of wound were irregular torn inverted; underlying bone fractured and brain tissue torn. 2) Lacerated wound on the right parietal region 2" above the right ear; margins of wound were irregular, torn and everted; underlying bone fractured and brain tissues torn as the direction of wound. 3) Lacerated wound on the head at left mustoid region " below the left ear; margins of wound were irregular and torn and inverted; underlying bone and brain tissue torn; during examination of brain tissue, five pieces of bullet found in the brain tissue." The injuries were caused by the bullets of a gun. Wounds Nos. 1 and 3 were entry wounds of the bullets while wound No. 2 was the exit wound. The doctor was of the opinion that the cause of the victim's death was hemorrhage and shock due to injury to vital brain centres by the gun-shot wounds. The post-mortem report prepared by him is Ex. P 8. The doctor seized and sealed the five irregular shaped lead pellets which were found embedded in the brain tissues of the deceased-victim. The accused was arrested on the same day at Chittorgarh. In consequence of the disclosure statement made by the accused after his arrest on May 12, 1979, two S.B.M.L. guns (articles 2 and 3) along with gun-powder and other explosive were recovered from his shop. The guns and the lead pellets were sent for examination to the State Forensic Science Laboratory, Jaipur. The guns were found serviceable. It was also found that the guns were fired and the pellets could have been fired from the guns. On the completion of investigation, the police submitted a challan against the accused in the Court of Judicial Magistrate, Chittorgarh, who, in his turn, committed the case for trial to the Court of Session. The learned Sessions Judge framed charges under S.302, I.P.C. and S.27 of the Arms Act against the accused, to which he pleaded not guilty and faced the trial. Denouncing the whole prosecution story as a false and fabricated piece of concoction, the accused claimed absolute innocence. It was alleged by him that only a truncated and lopsided version of the incident had been placed by the prosecution and the real facts were suppressed and concealed. In his statement under S.313, Cr. P.C., it was stated by him that on the death of his father, the relations between him and his brother Bhanwar Lal sunk low and had totally broken. The deceased Abdul Rahim was a notorious person of the locality. His services were hired by his (accused) brother Bhanwar Lal. On July 7, 1978, the deceased Abdul Rahim along with two sons of Bhanwar Lal made an assault on him (accused) and caused severe and grievous injuries to him. On his report, the police had filed a charge-sheet against the deceased and the sons of Bhanwar Lal for an offence under S.325, I.P.C. It was further stated by him that he was not keeping good health and a day before, i.e. in the evening of May 11, 1979 he was given the medical treatment by Dr. Mansukh Lal (PW 9). Abdul Rahim was after his life. Seeing danger to his life, he migrated to Chittorgarh. At times, he used to come to Bassi. Due to his illness, when he was about to leave for the hospital on the day of the incident, he noticed the deceased Abdul Rahim advancing towards him by taking positions behind a bullock-cart. The deceased had a pistol with him. He became apprehensive of his life and took-up a gun to threaten Abdul Rahim. Abdul Rahim, taking position behind the bullock-cart, fired a shot at him (accused) from his pistol. He (accused) also, therefore, fired a shot from his gun. The shot fired by Abdul Rahim missed the mark and did not hit him (accused). However, his (accused) shot hit the deceased. It was further alleged by him that dropping the gun there he left the place and reached Chittorgarh, where he was arrested by the police. The accused, thus, pleaded a right of private defence. In support of its case, the prosecution examined twelve witnesses and filed some documents. Mr. P.S. Manocha - the Fire-arms Expert of the Forensic Science Laboratory, Jaipur was examined as a Court witness. In defence, the accused also filed some documents and examined ten witnesses. On the conclusion of the trial, the learned Sessions Judge found no merit in the accused's plea of right of private defence. He held that Abdul Rahim was shot dead by the accused. The defence plea was dismissed and the charges were held duly proved against the accused. The accused was consequently convicted and sentenced, as mentioned at the very outset. Aggrieved against his conviction, the accused has taken this appeal.
(3.) We have heard Mr. M.C. Bhandari - the learned counsel for the appellant and Mr. L.S. Udawat - the learned Public Prosecutor. We have also gone through the case file carefully.;