- (1.) THIS is an appeal by Ramnarain and Shri Ram against their convictions under sec. 302 read with sec. 34 I. P. C. and sentence of death and a fine of Rs. 100/-each or in default of payment of fine one month's further rigorous imprisonment. The case has also been referred to this Court by the learned Sessions Judge, Ganganagar for confirmation of the sentence of death passed by him against both the appellants.
(2.) THE prosecution case is that there was enmity between both the accused Ram Narain and Shriram on the one hand and the deceased Dashrath and one Manphool on the other. Zeraram brother of Shriram and step brother of Ramnarain was killed a few years before the occurrence. THE accused persons suspected that Dashrath and Manphool had a hand in the murder of Zeraram. On the 10th of July, 1958, Dashrath along with his uncle Jiaram P. W. 1 who lived with him in village 11 T. K. went to his field Kila No. 8 for working therein. Dashrath asked his wife Mst. Manohari P. W. 3 to supply them water a little later. She accordingly went to the field with water and worked there for a while. She returned to her house leaving behind Dashrath and Jiaram in the field. While an her way to the field and back again she saw Ramnarain armed with a double barrel gun and Shriram with a single barrel gun at the point near the water course where subsequently the murder took place at about sunset time. Dashrath and Jiaram left the field for the village a little before sunset. While going Dashrath was about 17 paundas ahead of Jiaram. When he reached the water course, he was shot at both by Ramnarain and Shriram. THE first shot hit him when he was crossing the water course. He fell down 7 paundas away from the place where he received the first shot. Some of the articles which' he was carrying on his person, fell down in water. Maniram P. W. 2 happened to pass that way at that time and he saw the accused shooting at Dashrath. Both the accused went away after killing Dashrath on spot. Jiaram remained near the place where the dead body of Dashrath lay throughout the night. He informed Mst. Manohari at her house in the morning at 6 A. M. that Dashrath had been killed by Ramnarain and Shriram. He asked her to go and report to the police. He again returned to the place where Dashrath lay dead. It may be mentioned here that the bullocks which were being taken by Dashrath along with him reached his house in the evening at about 7 P. M. after sunset unattended. Mst. Manohari heard the three reports of gun fire a little before the bullocks reached her house and she came to know that Manphool had been shot at by both the accused Ramnarain and Shriram. She therefore, apprehended (from the fact of the arrival of the bullocks unattended) that the accused may have also done some mischief to her husband, Dashrath. She however, remained at her house and did not go out to find out about the whereabouts of her husband who failed to reach the house that evening. She has stated that she was afraid and did not dare to go out at night. After she had learnt from Jairam about the murder of her husband she went out to make a report to the police and met Khushiram the Sub Inspector in the village who had come there in connection with the investigation of the case of gun fires at Manphool. He recorded the statement of Mst. Manohari and sent it to the police station for registering a case under sec. 302 I. P. C. against Ramnarain and Shriram Both the accused were named in the statement of Mst. Manohari as the persons who had fired at Dashrath. THE dead body of Dashrath was sent to Raisinghnagar for postmortem examination. Dr. Har Govind performed the postmortem examination and he noticed 13 gun shot injuries in all on the person of Dashrath. According to the doctor, gun shot injuries were responsible for causing the death of Dashrath. THE examination of the injuries also revealed according to the doctor that Dashrath had received as many as four to five gun shots from a close range. Both the accused Ramnarain and Shriram were arrested on the 21st of July, 1958 at Jaitsar Railway Station 18 miles from the village 11 T. K. where they usually resided. From the search of the person of Ramnarain a double barrel gun Ex. 16 along with its licence and 10 live cartridges were recovered. Similarly, a single barrel 12 bore gun Ex. 18 along with a few live cartridges and its licence was recovered from the person or Shriram at the time of his arrest. THE guns and the ammunition recovered from the possession of the accused were sealed by the investigating officer in the presence of witnesses. THE Investigating Officer had recovered three empty shells of 12 bore gun from near the dead body of Dashrath. Two of them were just near him and one was at a distance of four paundas. (a paunda is of about 5 feet ). THEy are articles Exs. Nos. 13 14 and 15. THEy were sealed no sooner they were recovered by the investigating officer Both the guns and the empty shells Exs. 13, 14 and 15 were sent to the ballistic expert at Lucknow for examination His report that has come on record is to the effect that three empty shells Exs. 13,14 and 15 were fired from single barrel gun (of Shriram) Ex. 18. Both the accused were challaned by the police after investigation to the court of the Magistrate First Class, Raisinghnagar who committed them to the court of Sessions Ganganagar. But the accused denied having fired their guns at Dashrath. Ramnarain admitted the recovery of the gun Ex. No. 16 from his possession and Shriram of the gun Ex. No. 18. They also stated that the Sub Inspector fired a few shots from the guns after they had been taken possession of by him, thereby suggesting that the empty shells that were sent to the ballistic expert may have been of the cartridges which had subsequently been fired by the Sub Inspector from the guns of the accused persons. The learned Sessions Judge, Ganganagar believed the testimony of Jiaram who is an eye witness and held that both the accused persons fired their guns at Dashrath causing his death. He did not place any reliance on the statement of Mst. Manohari and Mainram. He also looked with suspicion at the evidence of the sealing of guns, Arts. No. 16 and 18 and of the shells Exs. Nos. 13, 14 and 15 for the reason that the signatures of the witnesses to recovery were not obtained on the cloth coverings in which they were sealed. The learned counsel for the appellants has urged that the statement of Jiaram P. W. 1 that has been believed by the learned Sessions Judge is open to the same criticism as has been held good by the learned Sessions Judge for disbelieving the statement of Maniram. It is contended that had Jiaram seen the murder of Dashrath with his own eyes, he would not have failed to go to the village and to inform Mst. Manohari about it soonafter and he would not have remained in the fields through out the night. It is also argued that the statement of Jiaram is not supported by the" medical evidence inasmuch as according to the doctor, the gun shots must have been fired at Dashrath from a very close range - say about 4 to 6 ft. whereas according to the witness the shots were fired from a distance of 17 to 22 paundas. The relevant portion of the statement of Jiaram is as follows - "when Dashrathia reached the water course I was about 15/20 steps behind him. The bullocks had crossed the water course and when Dashrathia was crossing the water course Shriram accused present in court fired his gun at Dashrathia hitting him near his right rist. Dashrathia fell down and all the articles carried by him fell down in the water course or on its bank. Dashrathia got up and went out of the water course but Shriram fired another shot at him hitting Dashrathia on his left side. Ramnarain accused had a double barrel gun. Dashrathia fell down on the ground on his chest and stretched his hands. Shriram again fired at Dashrathia hitting him on the left hip. I cried and asked the accused | why they were killing Dashrathia and both the accused ran after me but I ran away. After running for a short distance after me the accused went away to the village. For the whole of the night I remained near about the dead body of Dashrathia. In the morning i informed the wife of Dashrathia and asked her to make a report in the Police Station. . . . . . . . . . . . . . . XXX I did not sleep that night but kept on roaming about. Shriram was at a distance of 17 or 18 paundas from Dashrathia when he fired. Shri Ram was on the left side of Dashrathia when he fired and Ramnarain was in front of Dashrathia when he fired. " The medical evidence of Dr. Hargovind P. W. 4 is to the effect that card wads of gun were recovered from injuries Nos. 2 and 3 and one on the chest. It is also stated by the doctor that he recovered pellets from some of the injuries. He produced the pellets and the card wad in court recovered by him from the injuries. It seems that the doctor was in error in statins that a card wad was recovered from one of the chest injuries for there is no mention in this behalf in the postmortem report, nor is any one of his injuries on chest of big dimensions from which a card was might have been recovered. The doctor probably by mistake mentioned the chest injury in place of one of the big injuries at other places. This inaccuracy in the statement of the doctor is, however, not much material. The recovery of card wads from the injuries and the presence of scorching and blackening Nos. 1, 2, 3 and around them are sufficient to prove it beyond doubt that the injuries 13 must have been caused from a very close range. Modi in his text on Medical jurisprudence and Toxicology 11th Edition at page 217 writes : - "no blackening or scorching is found, if the firearm is discharged from a distance of more than four feet. " The doctor in his statement has also stated that the gun shots must have been fired from a distance of 4 to 6 ft. The injuries except Nos. 4 to 12 must have been caused by gun shots from a close range of 4 to 6 ft. Injuries Nos. 4 to 12 appear to have been caused from a distance greater than 6 ft. These injuries are in a diameter of 6". The pellets have spread all over in that area and the size of the injuries is also the same. In view of the medical evidence as discussed above the statement of Jairam that Ramnarain and Shriram fired from a distance of 17 to 22 paundas cannot be accepted as true. It seems that one shot alone must have been fired at from some distance and the remaining shots must have been fired at from a very close range say about 2 to 6 ft. It is also difficult to understand that Jairam after having seen the murder of Dashrath roamed about in the fields throughout the night and did not care to go to the village to give information of the occurrence to the wife of Dashrath. His conduct is abnormal. The learned Sessions Judge has reconciled this anomaly by remarking that he may have thought it necessary to keep a watch of the dead body of Dashrath during night. This explanation seems inconsistent with the statement of Jairam himself. He stated that he kept roaming in the fields which betrays the absence of an intention on his part to keep a close watch of the dead body of Dashrath for had he intended to keep a close watch he would not have wandered about in fields leaving the dead body alone and unattended. The explanation of Jairam does not appear to be satisfactory for not going to the village soonafter he had seen the murder. It may be that he was afraid himself for he had reason to suspect foul play against himself but he had not offered this explanation. He has stated in detail about each particular shot as to the place at which injury was caused and the person who fired it but had he seen the occurrence with his own eyes his statement would not have run counter to the medical evidence. Thus the evidence of Jairam is of doubtful value. The learned Sessions Judge has discarded the statements of Maniram and Mst. Manohari for reasons stated by him in his judgment. Maniram after having seen the murder did not care to inform the wife of Dashrath or anybody else in the village till he was examined by the investigating officer at about 10. 45 next morning. He belongs to the village 81 T. K. His conduct appears to be rather suspicious and the learned Sessions Judge was not wrong in doubting the veracity of his testimony. His name does not appear in the first information report. The statement of Mst. Manohari that she saw both the accused carrying guns near about the spot of occurrence while she went to her field and back again has not been believed by the lower court, but even if it is accepted it can not by itself be regarded as sufficient to establish the guilt of the accused persons. The evidence of the ballistic expert is no doubt positive that the empty shells that were recovered near about the dead body of Dashrath must have been fired from the gun Ex. 18 belonging to Shriram. The Court below did not act rightly in discarding the evidence of the ballistic expert for the reason that the articles that were sent to him for examination were not despatched promptly. The statements of Khushiram and also of Banwari P. W. 8, Ramswarup P. W. 9 and Jia Ram P. W. 1 are to the effect that the three cartridges that were recovered on spot by the investigating officer were sealed in their presence soonafter the recovery. The statement of Khushiram is to the effect that the guns after they had been recovered were sealed by him. This evidence appears to be sufficient to prove that all these articles were sealed properly by the investigating officer soon after they were recovered. Jarnailsingh P. W. 10 in whose presence guns were recovered from the accused persons has stated that he did not remember that the police sealed both the guns in his presence. The witness has expressed ignorance but the statement of Khushiram the investigating officer, is very clear and we see no reason to disbelieve it on this point. The suggestion that has come in the statements of both the accused persons that the investigating officer fired a few shots from the guns and he may have sent the empty shells of the cartridges fired by him to the ballistic expert in place of those that were recovered from the spot of occurrence in order to manufacture evidence against the accused persons, cannot be accepted. Had the investigating officer gone out of his way to fabricate evidence there was no reason why he should have sent the blanks of the cartridges that were fired from Shriram's gun alone. He could have sent the cartridges fired from both the guns in order to- implicate the accused persons. There is no basis for suspecting the conduct of the investigating officer. The evidence of the ballistic expert and that of Mst. Manohari does create a strong suspicion against both the accused persons specially when it is proved that they were on inimical terms with Dashrath on account of their harbouring suspicion against him for having a hand in the murder of Zora Ram. The evidence on record, however, does not appear to be sufficient to prove beyond reasonable doubt that the accused persons fired shots at Dashrath causing his death. The appeal succeeds and is allowed and the accused are allowed the benefit of doubt. Their convictions and sentences passed by the learned Sessions Judge, Ganga-nagar are set aside and they are acquitted. The reference fails and is dismissed. . ;