S. S. BYAS, J. - (1.) SINCE these two appeals-one by the convicts against their conviction and the other by the State against the acquittal-are directed against one and the same judgment of the learned Additional Sessions Judge, Hanumangarh dated August 31, 1976, they were heard together and are disposed of by a common judgment. By the impugned judgment, accused Bhera and Bhagirath were convicted under section 302/34, I. P. C. and each was sentenced to imprisonment for life. Accused Bhagirath was further convicted under section 323. I. P. C. and sentenced to one year's rigorous imprisonment. Accused Bhera Ram was, however, acquitted of the offences under sections 25 and 27 of the Arms Act. The accused have come-up in appeal and challenge their conviction while the State challenges the acquittal of accused Bhera Ram from the offences punishable under sections 25 and 27 of the Arms Act.
(2.) THE incident is alleged to have taken place at Sun-rise time on February 15,1974 in the Dhani of Aaduram Jat situate in Rohi of village Lal Garhiya P. S. Suratgarh district Sriganganagar, in which two persons lost their life-one being Aaduram of the complainant party and the other being Jeewan Ram of the accused's party. Briefly stated, the prosecution case is that the deceased Aaduram Jat resided in village Lal Garhiya nearly twenty years before this incident (February 15,1974 ). Aaduram and some persons committed the murder of the father of the appellant Bhera Ram. Aaduram and others were prosecuted and were acquitted. Aaduram thereafter apprehended danger to himself and the members of his family He, therefore, left village Lal Garhiya and started living in a Dhani which he raised in his field situate nearly three miles from village Lal Garhtya. Accused Bhera nurtured and nursed ill-will against Aaduram as he took him to be the principal offender for the murder of his father. At about Sun-rise time on February 15,1974, accused Bhagirath came to the Dhani of Aaduram and called him to come out. Aaduram came out. Accused Bhagirath told him that he had come in search of his two missing sheep. Bhagirath, Aaduram, Aaduram's sons PW 1 Kesra and P. W. 2 Manaram sat out-side the Dhani, lit the fire to warm themselves and prepared the tea. After taking tea, Bhagirath went away. Nearly fifteen minutes later, accused Bhagirath and Bhera accompanied with Jeewan came to the Dhani of Aaduram. Jeewan and accused Bhera were having guns. Accused Bhera fired his gun at Aaduram, which hit him on his right belly. Jeewan also trained his gun at Aaduram, but it was fired and did not hit him. Accused Bhagirath cried loud to kill everybody. Aaduram fell down with blood oozing out from his wound. PW 1 Kesra and PW 2 Manaram lifted lathis and struck blows to Jeewan to ward off further violence. Jeewan fell down and passed away then and there on the spot. Aaduram also did not survive. Accused Bhagirath and Bhera struck blows to these two brothers Kesra and Manaram with lathis. Due to beating. Jeewan was relieved of his gun. Accused Bhera and Bhagirath took to heels. While fleeing away, accused Bhera threw away his gun at the site. The incident was also seen by Aaduram's other son Kishan (PW 3) and his widow Mst. Chunni (PW 5 ). PW 3 Kishan went to his uncle Nanuram (PW 4) and brought him on the scene of the incident. The incident was narrated to him. Nanuram went to Police Station, Suratgarh and verbally lodged report EX. P. 1 of the occurrence at about 12. 30 p. m, on the same day. The Station House Officer Magansingh (PW 7) arrived on the spot, inspected the site and prepared the site plan. He also prepared the inquest reports of the dead-bodies of Aaduram and Jeewan Ram. He found two S. B. B. L. country-made guns, one spent cartridge, a bag containing ten live cartridges, blood spilled at different places etc. On the spot, which were seized and sealed. One of the guns found there had a cartridge -case in its chamber. One of the guns was found broken at butt and separated in two parts, namely, barrel and butt. The post-mortem examination on the dead-body of Aaduram was conducted on the afternoon on the same day by PW 6 Dr. Jhanwar the then Medical Officer Incharge, Government Hospital, Suratgarh. The doctor was of the opinion that the cause of death of Aaduram was shock and haemorrhage due to rapture of liver on account of gun-shot injuries. In all, seven injuries were found on his dead body, all of which were the results of a gun-shot. The post-mortem examination report prepared by him is Ex. P. 9. The injuries of PW 1 Kesra and PW 2 Manaram were also examined by Dr. Jhanwar. Simple injuries caused by blunt weapon were found on their person. Their injury reports are Ex. P. 10 and Ex. P. 11. The appellants Bhera and Bhagirath were arrested. The two guns and the cartridges were sent for examination to the Police Forensic Science Laboratory, Rajasthan, Jaipur. As per findings recorded in Ex. P. 16, the fired cartridge found on the spot was opined to have been fired from the gun found broken on the spot. On the completion of investigation, the police filed a crime report against accused Bhagirath and Bhera in the Court of the Munsif cum Judicial Magistrate, Suratgarh, who, in his turn, committed the case for trial to the court of Sessions. The case came for trial before the learned Additional Sessions Judge Hanumangarh, who framed charges under section 302, IPC and sections 25 and 27 of the Arms Act against accused Bhera and under sections 302/34 and 323 I. P. C. against accused Bhagirath. Both he accused pleaded not guilty and faced the trial. Both of them denied their presence at the scene of the incident and claimed absolute innocence. It was added by them that PW 1 Kesra and PW 2 Manaram were facing trial for causing the murder of Jeewan Ram It was why these two witnesses have falsely implicated them in this case. In support of its case, the prosecution examined seven witnesses and filed some documents. In defence, no evidence was adduced. On the conclusion of the trial, the two accused were convicted and sentenced as mentioned at the very out-set. As observed earlier, accused Bhera was acquitted of the offences under sections 25 and 27 of the Arms Act. The State was not satisfied with his acquittal from the offences under the Arms Act. Hence these two appeals before us. We have heard the learned counsel for the appellants, the learned Public Prosecutor and the learned counsel for the complainant. We have also gone through the case file carefully.
(3.) BEFORE dealing with the respective contentions raised before us,it would be proper to look into the findings recorded by the trial Court. They are:- (1) the three miscreants Bhera, Bhagirath (appellants) and the deceased Jeewan went together to the Dhani of Aaduram at Sun-rise time on February 15, 1974; (2) the deceased Jeewan had a gun; (3) accused Bhera and Bhagirath had no guns; (4) One of the guns found on the spot, in the barrel of which was found the cartridge, was of the deceased Aaduram. Aaduram fired this gun at Jeewan, but the shot did not hit; (5) it was Jeewan who, then, fired his gun at Aaduram and killed him thereby; (6) accused Bhera and Bhagirath (appellants before us) inflicted injuries to PW 1 Kesra and PW 2 Manaram with lathis causing simple injuries; (7) PW 1 Kesra and PW 2 Manaram also took up lathis and struck multiple severe blows to Jeewan as a result of which he scummed away instantaneously on the spot; (8) there was deep-rooted enmity between the deceased Aadu Ram the appellant Bhera; and (9) the murder of Aaduram was committed by Jeewan in furtherance of the common intention of all the three, viz. , Jeewan and the two appellants. The Sessions Judge further held that the broken gun (Article 2) was with the deceased Jiwan and the other gun (Article 1) was with the deceased Aaduram. The crime cartridge (C-l) was fired from gun (Article 2) by the deceased Jiwan, which hit Aaduram, Aaduram fired his gun (Article 1) at Jiwan but the shot did not hit him. The learned Sessions Judge further held that the three miscreants Jiwan, Bhera and Bhagirath came together at the Dhani of Aaduram. It was Aaduram who first fired the shot at Jiwan, it was thereafter that Jiwan fired his gun at Aaduram and killed him. The appellants Bhagirath and Bhera struct blows with this to PW 1 Kesra Ram and PW 2 Manaram. Since the three miscreants had come together, the kearned Sessions Judge inferred that the murder of Aaduram was committed by Jiwan in furtherance of the common intention of all the three. The prosecution examined four witnesses, viz. PW 1 Kesraram, PW 2 Manaram, PW 3 Kishan and PW 5 Smt. Chunni each of whom has claimed to have seen the incident. The first three are the sons and Smt. Chunni is the widow of the deceased Aaduram. In impeaching the conviction of the appellants it, was strenuously contended by Mr. Ganpat Ram learned counsel for the appellants that the four eye witnesses have been disbelieved on the main core of the prosecution version that it was accused Bhera who had fired the shot at Aaduram and killed him. When the main substratum of the prosecution case has been disbelieved by the trial court, it becomes highly doubtful whether the appellants were at all present on the scene of the incident. It was argued that there was bitter enmity between the complainant party and accused Bhera before the incident. Since Jiwan was killed on the spot, the eye witnesses invented a false story about the presence of the appellants on the scene of incident on account of severe enmity. It was argued that if there was a gun with accused Bhera, he must have used it and would have never allowed his companion Jiwan to be killed by PW 1 Kesra and PW 2 Manaram. He would have fired the shot and none of them, that is, Kesra Ram and Manaram would have been allowed to remain alive. ;