- (1.) THIS appeal is directed against the judgement of the learned Additional Session Judge, Dholpur, dated October 24, 1973, whereby the accused appellant Pooran was convicted under section 302 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 200/ -. He was also convicted under section 404 I. P. C. and sentenced to one year's rigorous imprisonment and to pay a fine of Rs. 200/-; in default of payment of fine the accused was ordered to suffer further two months' rigorous imprisonment under each count, The substantive sentences of imprisonment were directed to run concurrently.
(2.) TERSELY speaking, shorn of unnecessary details, the prosecution case is that Ranjan, cousin brother of accused Pooran, was suspected to have been murdered by Nawab Singh alise Nabbe (since deceased ). The members of the family of Ranjan including Pooran, bore a grudge against Nawab Singh. On October 31. 1972, Nawab Singh (since deceased) went to one Chandrabhan's shop situated in Sitaran Bazar at about 3. 30 pm. While he was sitting on a Muddah, accused Pooran, armed with a country-made 12 fore Katta, arrived there and soonafter fired shote towards Nawab Singh, hitting him on his back and other parts of his body. Nawab Singh succumbed to the fire-arm injuries on the spot sustained by him at the hands of the accused-appellant. Before leaving the scene of the incident, Pooran pulled-out the golden chain from Nawab Singh's neck and took it away with him He also threatened the persons who had assembled there and warned them not to interfere in the matter and if they do so it would be at their own peril A written report of this incident (Ex P. 1) was lodged by Nohar Singh (PW. 1), brother of the deceased, with the Police Station, Bari, on October 31, 1972, at 3. 30 pm. On the basis of this written report, a formal first information report (Ex. P 13) was drawn, Soonafter, the investigating officer reached the spot. He prepared site plan Ex, P/2. He seized "chadder", "gadda" and a "chatai", in the presence of certain "motbirs" and got it signed by them. The seizure memo is marked as Ex, P/3. He also seized two empty cartridges of 12 bore bearing a mark 'gebecot', six one rupee notes, ten pellets of 12 hore cartridges, six cork pieces, a piece of broken gold chain (Ex. 7), and four lead pieces Their seizure memo is marked as Ex. P/5 Inquest report (Ex. P/6) was prepared wherein the gist of the first information report was also incorporated. The same day, a special report Ex. P/14 relating to the incident was sent to the Superintendent of Police, Bhatatpur. Autopsy on the dead body of Nawab Singh was performed by Dr. Narain Lal P. W, 13. The doctor noticed the following external injuries on the corpse: " (1) Gun-shot wound, entry wound 3/4" x 1/2" depth was oblique probe entered the thoratic cavity on right side of the crossing the midline in a slight downward direction. The wound was situated on the left-side of the back 1" outer to the tip of the 6th thoratic vestabrae. Margins of the wound were inverted scorched, brushed and blackened smell of gun powder was present. 1 he skin in an area measuring 2-1/2" x 1" in continuity with the outer margin of the wound and in the same direction i. e. down ward from right to left side. The overlaying clothes Baniyan and the shirt- bear the corresponding lobe opposite the wound. On the 3" long and on the Baniyan 1-1/2" clothes were burnt. (2) Lacerated wound, exit-wound, 1" x 1-1/2" vertical probe-entered the thorasic cavity- obliquely downward margins of the wound were found everted. It was situated on the right infras cervical fossa. Corresponding tear in the ever lying Baniyan and shirt present. (3) Lacerated wound exit wound 4"/x 1/5" probeentered the thorasic cavity obliquely on the right pectoral region 3" above the nipple gins everted. (4) Lacerated wound-exit wound 1/4' x 1/4' on the right pectoral region probe entered the thoracic cavity obliquely. (5) Lacerated wound exit wound l/4"xl/4"on the right side of the chest 1/2" outer to the right nipple probe-entered thoracic cavity obliquely. (6) Gun-shot wound exit wound 1/4' x 1/4' below injury No 5 probe entered the thoracic cavity obliquely. (7) Lacerated wound exit wound 1/4' x 1/4' on the right side of the chest 3" outer to the right nipple probe entered the thoracic cavity obliquely. (8) Lacerated wound exit wound 1/4'x 1/4' on the right side of the chest 1/2" outer to the midline and 3" and inner to the nipple-probe entered the thoracic-cavity obliquely. (9) Lacerated wound exit wound 1/4' x 1/4' on the right coastal each, 5" below the right nipple probe entered the thoracic-cavity obliquely. (10) Lacerated wound exit 1/0" x l/4'' on the mid-line of the external region 1" above the xiphoid process. " In the opinion of the doctor, the above mentioned injuries were ante mortem. The doctor also noticed corresponding holes on the clothes of the deceased. The incremation examination of the dead-body of the deceased Nawab Singh brought to light the following symptoms: - " (1) Fracture of the right third rib antari-orly and right fifth, laft sixth rib posteriorly and left fourth rib cartilay. " (2) Pleurae on the both the sides were found torn, though Hemothorax was found. " (3) Right lung contained multiple lacerated punctured wounds. (4) Left lung contained two punctured wounds. (5) Practure of fifth and sixth thoreaic vertibrae stained "bone multiple seibe" holes. (6) Pellets and one cork were recovered from the body. One cork and 5 pellets were recovered from entry wound i. e , external injury No. 1 and the surrounding sub cutaneous and muscular tissues whils one pellet was recovered from the sub-cutaneous tissu as of the external region " The doctor opined that the cause of death of Nawab Singh was gun shot wounds to both the lungs, leading to severe internal haemorrhage. On November 2, 1972, the accused appellant was arrested. The arrest memo is marked as Ex. P/8. After his apprehension, the accused expressed desire to get the gold chain, owned by the deceased, recoveted from the place wherein he had concealed it. That information was reduced to writing. Its memo is marked as Ex, P/19. The relevant portion of the information is excerpted below, ....Vernacular Text Ommited.... In pursuance to this information, a piece of gold chain alleged to have been taken by the accused from the deceased's nack was recovered from the place of its concealment. The piece of chain (Ex5) was seized and seized i the presence of Motbirs vide recovery memo Ex. P/9. The police, after usual investigation, submitted a challan against the accused-appellant to the Court of Additional Munsif-Magistrate, Dholpur The learned Magistrate, after committal proceedings, committed the accused for trial to the Court of Additional Sessions Judge, Dholpur. The accused pleaded not guilty to the charge The prosecution examined 13 witnesses in support of its case The investigating Officer of the case (Shri Budh ram) was examined as Court Witness No 1. The accused denied his complicity in the crime. He did not produce any evidence or examine any witness in support of his defence. Of the five eye-witnesses, namely, Dayaram, Bhogiram, Ramdeen, Umaid and Chandrabhan, produced by the prosecution, the learned Judge held that three of them, namely Dayaram (PW2), Ramdeen (P. W. 8), and Umaid (PW 10) were not the eye witnesses of the occurrence For Bhogiram (P. W. 3) the learned judge observed that he was equally related in degrees to both Nawab Singh (since deceased) and the accused-appellant Pooran Learned Judge held that though there was some exaggeration in bis statement, he was a witness of sterling worth. According to the learned Judge, the statement of this witness stood corroborated in material particulars by a portion of the statement of Chandrabhan (P. W. 11), the testimony of Dr. Narainlal (P. W. 13), the first information report (Ex. P/13) and the evidence of the recovery of the place of gold chain (Ex. 5) at the instance of the appellant in consequence of information given by him as also by the recovery of the piece of the same gold chain (Ex 7) lying below the dead body of Nawab Singh. On the above findings, he found the accused guilty and convicted and sentenced him as aforesaid. Aggrieved by the above verdict, the accused-appellant has challenged his conviction and sentence through this appeal.
(3.) IT cannot be disputed and has not rightly been disputed that the shot was fired at Nawab Singh on the date, time and place alleged by the prosecution, as a result of which he met instantaneous death. The only question which has to be answered is whether appellant was the person who committed the crime. Learned counsel, appealing on behalf of the accused-appellant, argues that there were certain outstanding features of this case, which, according to him, are sufficient to throw doubt on the entire prosecution case. The prosecution witnesses have concealed the true version of the occurrence. The statement of Bhogiram (P. W. 3) stands contradicted by the medical evidence. Bhogiram (PW 3) is a chance witness and on the solitary testimony of such a witness conviction of the accused under section 302 I. P. C. could hardly be sustained. The evidence regarding the recovery of the pieces of gold chain (Ex. P. 5 and Ex. P. 7) is spurious. The investigation of the case was not fair. The first information report of this case was received by the Magistrate, competent to take cognizance of the offence on November 2, 1972 and it could legitimately be suggested that the first information report Ex. P/13 was recorded much later than the stated date and time. Learned Public Prosecutor, appearing on behalf of the State supports the judgment of the trial court. The motive showing the cause for the crime has been disclosed in the first information report (Ex. P/13) Even if it is held that the prosecution case regarding the motive for the commission of the crime has not been proved, then alias it cannot undo the effect of the evidence otherwise sufficient, It has been observed by their Lordships of the Supreme Court in Yashwant vs. State of Maharashtra (1) that the discovery of the true motive for a crime is not imperative in every case. Proof of motive satisfies the judicial mind about the likelihood of the authorship of the crime, but its absence only demands deeper search. The motives of men are often subjective, submerged and unamenable to easy proof. Keeping the above principle in view, we now proceed to evaluate other evidence on the record. ;