SOBHAG MAL JAIN,J. - (1.) THIS appeal, by the accused, is directed against the judgment dated April 10, 1975 of the Additional Sessions Judge, Sri Ganga Nagar, convicting and sentencing the appellants Raj Kumar and Jagmohan for the offence under Section 302 and 302/34 I.P.C. respectively and sentencing each of them to imprisonment for life.
(2.) THE case relates to the incident which took place at the house of Kashi Ram in village Malarampura, District Sri Ganganagar on the night of November 8, 1972, at about 9.00 p.m. in which Khetpal son of Kashi Ram was killed and Mohanlal, PW 2, was injured. The prosecution case, in brief, was that earlier on the day, the occurrence took place, the accused Rajkumar, accused Jagmohan, deceased Khetpal along with Budhram and Nathu Ram PW 4 had played the game of cards. During the play, a dispute arose, leading to exchange of words and also grappling between the accused Rajkumar and the deceased Khetpal. They exchanged slaps. The matter was, however, subsided; they were separated and the accused went away at that time but while leaving the place, accused Rajkumar gave a threat that he would revenge Khetpal for this. The prosecution story, further was that at about 9.C0/9.15 p.m. the same night, when Kashi Ram, Khetpal, Mohanlal, Dhanraj and Ram Pratap had just gone to bed in the pole of their house, described as a Darwaja. Kashi Ram and others heard the sound of gun shots fired outside their house. The outer wall of the Darwaja had shutters. In one of the shutters a window opening was kept. It was 3 -1/2 feet long and 1 -1/4 feet wide. Kashi Ram looked through the window and saw the accused Raj Kumar and Jagmohan standing there in the Gali at a distance of 5 -6 feet from the gate of the house. Raj Kumar was armed with a double barrel 12 bore gun and Jagmohan was holding a rifle. Both the accused were using abuses. Looking at Kashi Ram the accused asked him to get Khetpal out of the house. They declared that they would finish him. Kashi Ram requested them to go away. In the mean time, however, Khetpal, Mohanlal and others also came near him to the window. Khetpal also asked the accused to go away and not to use abuses. On this, the prosecution case proceeds further, the accused Jagmohan asked Rajkumar as to what he was looking at, he should fire the shot, Rajkumar, then fired a shot from his gun which travelled through the window and hit Khetpal on the right side of his chest. The gun shot also hit Mohanlal on his left arm. Thereafter, the accused left the place and went away. A jeep was arranged and Khetpal was taken to the hospital at Sangaria where he was declared dead. Kashiram went to the police station, Sangaria and lodged the First Information Report of the occurrence. It was 10.20 p.m. the same night. A case under Sections 302 and 302/34, I.P.C. was registered and investigation started. Shri Gorudan, who was the Station House Officer of the Police Station sent Shri Prittam Singh, ASI to bring there dead body of Khetpal from the hospital. The dead body was then brought to the Police Station. Shri Gorudan, busied himself in search of the accused. The next morning, i.e. on November 9, 1972, he reached the spot of incident in village Malaram Pura. There he prepared the site plan and memo of inspection; seized the blood stained earth, some wads, empty cartridge cases and other articles lying inside and outside the house. The post -mortem examination of Khetpal was conducted by Dr. S.M. Saini on November 9, 1972 at 9.15 a.m. The doctor found the following injuries on his body: (1) One wound of entry (lacerated wound with inverted edges slight tatooing present) 1/4' X 1/4' x bone deep on right side of chest anteriorly close to lateral side upper part of chest; (2) One wound of exit (lacerated wound with everted edges no tatooing) just lateral to upper injury 1/2' X 1/2' X bone deep; (3) Five lacerated wounds with inverted edges with slight tatooing 1/4' x 1/4' X bone deep on right side of chest anterior laterally below the upper injuries at the level of 4th, 5th, 6th and 7th ribs; (4) One abrasion 1' X 1/4' X on right side of chest anteriorly about 2' from mid line at level of 5th rib; (5) One abrasion 1'x 1/2' caving into a minor lacerated wound on right side of chest anteriorly just close to mid line at level of 5th rib; On opening the dead body the doctor noticed the following internal injuries; (1) A channel was dissected out connecting external injuries Nos. 1 and 2; (2) Right 4th, 5th, 6th and 7th ribs fractured, liver, right lung and lacerated 5th and 6th thoracic vertebrae fractured, spinal cord lacerated; (3) Two pellets recovered from the side of injuries in vertebral column. There pellets found on dissection posteriorly near mid line lodged in para -vertebral muscles of right side. The cause of death as per the opinion of the doctor was shook and stoppage of vital functions due to injuries on the right lung, liver, spinal cord, vertebrae and ribs, caused by a fire -arm. All the injuries were ante -mortem in nature. According to the doctor injury No. 3 was sufficient in the ordinary course of nature to cause death. The doctor also took out five pellets from the dead body, sealed them and gave them to the police. The injuries of Mohan Lal were also examined by the same doctor on November 8, 1972 at 11.00 p.m. Mohan Lal had 5 abrasions on his left arm latero -posteriorly. All the injuries were simple in nature and caused by a gun shot.
(3.) BOTH the accused were arrested on November 17, 1972. While in custody Rajkumar gave an information on November 19,1972 to the SHO that he had hidden a 12 bore double barrel gun in his field under the heap of gram, and that a rifle was in the house in village Shera. On this information the police recovered the 12 bore gun and the rifle at his instance from the places stated by him. The fire arms, the wads, cartridges and the lead pellets were sent for examination to the Central Forensic Science Laboratory, Central Bureau of Investigation, New Delhi. Shri G.R. Prasad, Senior Scientific Officer, opined that the two 12 bore cartridges marked by him as C/1 and C/2 were fired from a single weapon although it could not definitely be said that they were fired from the double barrel 12 bore gun marked by him as W/2. He was further of the opinion that the two 30 cartridge cases marked by him as C/3 and C/4 could have been fired from the rifle (W/1). For this also he said that a definite opinion could not be given for want of sufficient characteristic marks on the cartridge cases. Dr. Prasad further found that the tips of the firing pins of the DB -BL gun (W/2) appeared to have been deliberately filed/tampered with. After investigation the police filed a charge sheet against the appellants in the court of Munsif Magistrate, Haumangarh, who committed both of them to the court of Sessions to stand trial for the offences under Sections 302 and 302/34, I.P.C.;