S. S. BYAS, J. - (1.) ACCUSED Basheera was convicted U/s 302 while accused Noora and Goonga were convicted u/s 302/34 I. P. C. and each was sentenced to imprisonment for life with a fine of Rs. 500/-, in default of the payment of fine to further undergo 6 month's rigorous imprisonment by the Additional Sessions Judge, Kishangarhbas by his judgment dated Feb. , 20, 1986. By the same judgment, accused Basheera was further convicted u/s 3/25 of the Arms Act and sentenced to 6 month's rigorous imprisonment with a fine of Rs. 100/-, in default of the payment of fine to further undergo 1 month's rigorous imprisonment. The accused have filed this joint appeal and challenge their conviction.
(2.) THE prosecution case which is short and simple, may be briefly summarised as under : The three accused Basheera, Goonga and Noora who are real brothers inter-se and P. W. 6 Samsu are the residents of village Husaipura Police Station Tapukara District Alwar. The deceased victim Kalu aged about 40 years was also a resident of this village Husaipura. P. W. 5 Lallu is the resident of village Udaipur. The distance between the two villages Husaipura and Udaipur is nearly 6 miles. The sister of Samsu P. W. 6 the wife of P. W. 5 Lallu. On 15. 11. 84 a quarrel took place between the deceased Kalu and the accused persons in their village Husaipura over a place for tethering the cattle. The accused started nursing and ill will against the accused. On 16. 11. 84 P. W. 5 Lallu was returning to his village Husaipura from Daruheda. When he reached bus stand Matila, Samsu (P. W. 6) and deceased Kalu met him there. He asked P. W. 6 his brother-in-law Samsu as to how he happened to come there. Samsu replied that on the preceding day, a quarrel had taken place with the accused persons over the tethering place. The accused had threatened them (him and Kalu) with dire consequences. While these talks were going on, the 3 accused persons also happened to come there. They started abusing Samsu and Kalu. Hearing the noise, Prem Harijan and Kanahiya Ahir also came there and intervened. They requested the accused persons not to quarrel over petty matters. The 3 accused then retreated towards their village Husaipura, P. W. 5 Lallu took P. W. 6 Samsu and deceased Kalu to his village Udaipur. In the night they took their meals at the house of Lallu P. W. 5 then thereafter retired to sleep. Samsu P. W. 6 and the deceased Kalu slept on separate cots in the Bangla (not the Bungalow), P. W. 5 Lallu slept nearby in his house. While P. W. 6 Samsu and the deceased Kalu were sleeping, the accused persons went there to them at about 2. 00 A. M. (i. e. in the night between 16. 11. 84 and 17 11 84 ). Accused Basheera had a gun, accused Goonga had a Ballam and accused Noora had a Lathi. P. W. 6 Samsu got awakened. Accused Goonga placed his Ballam on his chest and threatened to kill him in case he raised cries. Accused Basheera fired his gun at Kalu, as a result of which Kalu sustained injuries on his chest, waist and other parts. Samsu however raised cries. Accused Basheera fired a shot at him but it did not hit him. Thereafter the accused persons made good their escape. P. W. 7 Parma, P. W. 8 Sardar and P. W. 10 Golu hearing the gun shots came there. They saw the 3 accused fleeing away with weapons. Lallu P. W. 5 went to police station Tapukara and verbally lodged report Ex. P. 13 of the incident at about 7. 00 A. M. on 17. 11. 84. The police registered a case and proceeded with the investigation. The investigation was conducted by the Dy. S. P. Shri Shukla P. W. 15. He accompanied with A. S. I. Om Prakash P. W. 13 arrived on the spot and prepared the inquest report Ex. P. 9 of the victim's dead body. The site was inspected and the site plan Ex. P. 2 was prepared. Wad pieces, one lead Ball and 75 lead pellets were found in the woollen Jersey which the deceased was wearing. They were seized and sealed. The blood stained Gadda and other articles were also seized and sealed. The post mortem examination of the victim's dead body was conducted at about 2. 40 P. M. on 17. 11. 84 by Mahesh Chand the then Medical Officer incharge, Government Dispensary Tapukara. He noticed the following injuries on the victim's dead body: (1) Fire arm wound :- wound to entry-size:- 3. 8 c. m. x 2. 9. c. m. margins of reggid illegible. , surrounding is scorched & tattooed. On (Rt.) side of Back region at the level of spine of 8th Thoracis Vertebrae & 9 c. m. lateral to it. (2) Fire wound :- wound of exit- On left side of epigastric region on abdomen size:-2. 2 cm. margins irregular. . illegible. No blacking & tattooing of the skin seen. Wound is 5 c. m. lateral to the illegible. . & 12 c. m. above the umbles. In the opinion of Doctor Mahesh Chand, the cause of death was haemorrhage and shock due to rupture the liver and lunge of right side on account of fire arm injury. The post mortem examination report prepared by him is Ex. P. 18. The 3 accused persons were rounded up on 22. 11. 84 and in consequence of the information furnished by them on 27. 11. 84, one country made 12 bore SBML gun, lathi and Ballam were recovered. The gun was sent for examination and it was found serviceable. On the completion of the investigation, the police submitted a crime report against the 3 accused in the court of the Munsif & Judicial Magistrate. Tizara, who in turn committed the case for trial to the court of Sessions. The learned Additional Sessions Judge, Kishangarhbas framed the charges U/s 302/34 I. P. C. against accused Goonga and Noora and u/s 302 I. P. C. and 3/25 of the Arms Act against the accused Basheera. The accused pleaded not guilty and faced trial. According to them they have been falsely implicated. The suggestion was made that P. W. 5 Lallu had and is still having illicit intimacy with the wife of the deceased Kalu. P. W. 5 Lallu and his brother-in-law P. W. 6 Samsu had killed Kalu as he was found a hindrance in the way of P. W. 5 Lallu. In support of its case the prosecution examined 15 witnesses and filed some documents. In defence no witness was examined. On the conclusion of the trial, the learned Sessions Judge found the charges duly proved against the 3 accused persons. They were consequently convicted and sentenced as mentioned at the very out-set. Aggrieved against their conviction, the accused have taken this appeal. We have heard Shri Jagdeep Dhankar-learned counsel for the appellants and the learned Public Prosecutor Mr. Rizwan Ali. We have also gone through the case file carefully.
(3.) BEFORE dealing with the contentions of the learned counsel for the appellants, it would be useful to briefly notice the conclusions and findings recorded by the court below. They are; (1) The prosecution has utterly failed to prove the motive for the conviction of the murder of Kalu. (2) The prosecution has again failed to prove the incident alleged to have taken place a day before this incident at bus stand Matila where the appellants had held out threat to kill Kalu. (3) There was apparent contradiction between the evidence of the ocular witness Samsu P. W. 6 and the medical evidence. The medical evidence is that wound (1) found on the victim's dead body on the right side of back region at the level of spine of 8th thorecic vertebrae was the entry wound and wound (2) found on the left side of chest was the exit wound. P. W. 6 Samsu in his police statement had slated that the shot fired from gun by accused Basheera hit the victim on the chest and the bullet passed through his back. (4) The eye witness P. W. 6 and the other witnesses viz. P. W. 7 Parma, P. W. 8 Sardar and P. W. 12 Golu were the close relatives of P. W. 5 Kalu. The first was his brother-in-law and the remaining 3 were his first cousins, and (5) The statement of P. W. 6 Samsu that he received an injury of Ballam on his chest at the time of the incident is false and unfounded. The learned Sessions Judge despite these infirmities held the evidence of P. W. 5 Lallu, P. W. 6 Samsu and P. W. 12 Golu dependable and trust worthy to hold that Kalu was shot dead by accused Basheera in prosecution of the common object of all the accused. In assailing the conviction of the appellants, it was vehemently contended by Mr. Jagdeep Dhankar that the evidence of the aforesaid witnesses was entirely false and was insufficient to warrant their conviction. When the major part of the prosecution story has been disbelieved by the trial court, prudence required that the shooting story should also have been discarded. P. W. 6 Samsu is a wholly unreliable witness on whom no faith can be pinned. ;