JUDGMENT
V.G. Palshikar, J.
1. This appeal is directed against the judgment dated 6-2-91 in sessions case No. 64/89, by the Addl. District & Sessions Judge, Raisinghnagar. The learned Judge has, by the impugned judgment, convicted the appellants under Sections 302/149 of the Penal Code and sentenced them to imprisonment for life. He also found them guilty under Section 148 of the Penal Code and sentenced them for one year’s rigorous imprisonment. They were also sentenced for one year’s rigorous imprisonment under Section 27 of the Arms Act. This order is challenged in this appeal.
2. The prosecution story briefly stated is that on 24-3-1989 at about 4 and 4.15 in the evening, the complainant was sitting in the medicine shop of Ramchandra, near the Bus Stand of village Ramsinghpur. The accused Bhani Ram and Purkha Ram were also sitting in the shop. Then Om Prakash and his brother Hansraj came to the shop and Bhani Ram and Purkha Ram left the shop. Bhani Ram signalled towards the bus stand and the other accused came in the shop and they challenged Om Prakash. Then Jugraj and Mohanlal were armed with ‘gandasi’ and Jessa Ram was armed with ‘lathi’. Bhani Ram and Purkha Ram took out their guns and they assaulted Om Prakash with the intention to kill, by ‘gandasi’ and ‘lathi’. Then Bhani Ram fired a shot which hit Om Prakash in the arm. Then Purkha Ram wanted to shoot but the gun was seized by the complainant who was hurt by the pellet. Then Om Prakash tried to hide in the front portion of the shop and Mohan Lal, Jugraj and Jessa Ram started to assault him by ‘gandasi’ and ‘lathi’. When the complainant tried to prevent them, he was also hit on the right arm. Hansraj, another brother of Om Prakash also tried to save Om Praksh and started shouting, on which accused Krishna and accused Rajiram who were standing outside the shop dragged Hansraj out of the shop. The assault took place because of the rivalry in Panchayat Elections. Om Prakash who was in serious condition was removed to hospital by Hansraj in a tractor.
3. The First Information Report, was, therefore, lodged at 6.00 P.M. on 24th March. ’89 by Brij Lal
4. The prosecution has examined 10 witnesses to prove its case. On appreciation of the evidence on record, the learned Judge came to the conclusion as aforesaid, which resulted in conviction of three of the six accused. Two accused persons died during the pendency of the trial and one was acquitted by the learned Addl. Sessions Judge. The remaining three persons are the appellants in the present appeal.
5. Assailing the order of conviction, Mr. M.L. Garg, learned counsel for the appellants submitted the following grounds:-
(a) the F.I.R. has been received by the Magistrate on 28-3-1989. The delay is unreasonable, it is not explained. The possibility of concoction and prefabrication of the First Information Report cannot, therefore, be overruled.
(b) there is materal variance in the First Information Report and the oral evidence. Salient features of the incident have been omitted in the First Information Report, and
(c) the oral evidence is not trustworthy. There are material contradictions and omissions in the testimony of eye witnesses. The witnesses have attempted positive improvement in their depositions and, therefore, they were liable to be rejected.
6. The prosecution has failed to disclose the complete and true story as it happened on 24th March ’89. An over all appreciation of the evidence, as it stands today, also demonstrates that the incident which factually occurred oh that day was not one as described by the witnesses. Even if the entire evidence is, therefore, to be accepted, the accused cannot be held guilty Under Sections. 302/149 of the Penal Code.
7. In view of the fact that PW/2 Ram Chandra is declared hostile and PW/3 Mansha Ram and PW/4 Hansraj have been disbelieved by the learned Judge, no order of conviction was permissible in law as the remaining evidence was unacceptable and in any case did not prove the prosecution story beyond reasonable doubt. He pleaded that PW/1 Brij Lal also is liable to be disbelieved. In his submission, therefore, the order of conviction s unsustainable in law and is liable to be set aside.
8. Opposing the appeal, the learned Public Prosecutor submitted that PW/1 Brij Lal is an independent witness. He has duly corroborated all material particulars and, therefore, he need not be disbelieved. He then submitted that the contention regarding delay in despatch and receipt of the First Information Report is unsustainable and factually incorrect. The report was dispatched on the same day and it reached the learned Magistrate on 25th March ’89. Till 28th March ’89 the learned Magistrate was on leave and he signed the report, therefore, on 28-3- 89. Supporting the conviction, the learned Public Prosecutor said that obviously the accused persons had ganged up with the intention of killing Om Prakash, the deceased. They were duly armed for that purpose and, therefore, their conviction Under Section. 302/149 of the Penal Code, is liable to be sustained. He was supported by Mr. M.D. Purohit, learned counsel appearing for the complainant. It was the submission of Mr. Purohit that no fault can be found with the impugned order, as it is an obvious case of intended assault, calculated to cause death. The discrepancies pointed out on behalf of the appellant are certainly not pf the nature as would require this Court to disbelieve the witnesses.
9. In order to appreciate the rival contentions, re-appreication of evidence is necessary.
10. PW/1 Brij Lal has deposed that between 4 and 4.30 P.M. on 24-3-1989, he was sitting in the shop of Ramchandra (PW/2). Accused Bhani Ram and Purkha Ram were already sitting there. A little time threafter, Om Prakash and his brother came there. On their coming, Bhani Ram and Purkha Ram went out. As soon as Bhani Ram came out of the shop, he waved towards the bus stand and within a short time Mohanlal, Jessaram and Khayali Ram came there. Bhani Ram and Purkha Ram had pistols. They said, enemy is sitting, should not be allowed to escape. Purkha Ram and Bhani Ram drew their guns. Mohanlal and Khayaliram were armed with ‘gandasi’. Jessa Ram had a lathi, Bhani Ram fired a shot which hit Om Prakash on the right arm. Others assaulted Om Prakash with ‘gandasi’ and ‘lathi’. He prevented Purkha Ram from shooting and he was injured in the stomach by the pellet. Then all the accused started hitting Om Prakash. Om Prakash bit the ear of Purkha Ram. When he tried to save Om Prakash he was also hit by the stick of ‘gandasi’. Then Hansraj started shouting for help. Then the accused came out after beating and went away in a tractor. Hansraj then told the witness that he was caught by Krishna and Rajiram outside the shop. Hansraj came with the jeep and took Om Prakash to a hospital in Anupgarh. The witness took his jeep and reported to the police.
11. The witness has been thoroughly cross- examined, where he has admitted that when Om Prakash bit the ear of Purkha Ram, Purkharam did not have pistol in his hand. He has deposed in the cross-examination that Om Prakash was hit on the head by ‘lathi’ and ‘gandasi’ even prior to his biting the ear of Purkharam. He admits to have mentioned the names of other accused persons,.(sic) Bhani Ram and Purkharam, on the information received from Hansraj.
12. A careful scrutiny of this witness does not inspire any confidence. He is guilty of suppression of material fact. The fact of Om Prakash biting the ear of Purkharam was not stated by him while lodging the First Information Report. This fact, which was certainly a salient feature of the incident, has been omitted in the First Information Report. He has admittedly added the names of five accused persons at the instance of Hansraj, brother of the deceased. He had, thus, not known or identified these five persons when he went to the Police Station for lodging the report. His admission that he had done so at the instance of Hansraj, also appears to be incorrect. It has come in his own evidence, as also the evidence of Hansraj that immediately after the incident, Hansraj took his injured brother deceased Om Prakash to the hospital and Brijlal went to the Police Station to lodge the First Information Report. If these two statements are accepted, then the question which crops up in mind is, when did Brijlal and Hansraj meet so that the names of the accused persons could be added by Brijlal at the instance of Hansraj? If his statement in the cross-examination that he did do at the instance of Hansraj is to be accepted, then his deposition in examination-in- chief that Mohanlal and Khayali Ram were armed with ‘gandasi’ and Jessa Ram was armed with ‘lathi’, becomes doubtful. It is further so because in the First Information Report he states that it was Jugraj and Mohanlal who were armed with ‘gandasi’. These are, thus, material contradictions in the statement of the witness.
13. The witness then has stated that the Bhani Ram and Purkharam were already sitting in the shop when Om Prakash arrived in the shop. He has stated that they were armed. If that was so, there was no need for them to seek further aid by calling others from the bus stand. Two armed persons could easily cause any intended harm to an unarmed person like deceased Om Prakash. The theory of Bhaniram signalling towards the bus stand to all other accused persons to approach the shop, therefore, appears to be a figment of imagination on the part of Brijlal. The omission on the part of the witness to state in the First Information Report, the fact of Om Prakash biting the ear of purkha Ram, also appears to be deliberate suppression, in order to avoid any suggestion of sudden fight.
14. It will then be seen that Brijlal, in very clear terms, has stated that the gun shot by Bhaniram hit the deceased in the right arm. The medical examination of the deceased does not disclose any gun shot injury on his right arm. The witness has deposed that while preventing Purkharam from shooting, he had lifted the muzzle of the pistol in his hand and the shot fired caused injury to his stomach and the clothes he was wearing bore a hole. He was medically examined and no injury was found on his stomach. It is, thus, obvious that the witness has made certain improvements in the case. The statement of this witness PW/1, that accused Bhani Ram and Purkha Ram were already sitting in the shop and after arrival of Om Prakash, they signalled the other accused from the bus stand, suggests…a conspiracy on the part of the accused persons to hit Om Prakash and knowledge on their part that the deceased will definitely visit the shop when Bhani Ram and Purkharam were sitting there. There is not even a word on record to draw an inference of such knowledge on the part of the accused persons. Consequently, the statement that there was such common object on the part of the accused persons, becomes unacceptable.
15. Taking into consideration the several omissions and contradictions n the evidence of this witness, we do not feel it legal and proper to accept his deposition. His deposition was liable to be rejected.
16. PW/2 Ram Chandra was declared hostile and his testimony is of no consequence. Even if it s assumed that he was wrongly declared hostile, his testimony does not inspire confidence for the reason that according to him, he ran away after he heard two shots being fired and after having heard that there is some quarrel gong on in his shop. It is completely unnatural conduct on the part of a person to leave his shop or not to go to his shop when he learns of any quarrel going on in the shop. On this ground alone, the witness was liable to be disbelieved.
17. PW/3 is Mansha Ram who has been disbelieved by the learned Sessions Judge as a chance witness. In para 99 and 100 of his judgment, the learned Judge has given cogent reasons for disbelieving this witness and we see no reasons to take a different view.
18. PW/4 Hansraj is the brother of the deceased Om Prakash. He has stated that he was held outside the shop by two of the accused persons and was not permitted to enter it. He has stated that Bhaniram and Purkharam were already sitting in the shop, they came out and the other accused joined them. Purkha Ram and Bhaniram were armed with pistols. Mohanlal had ‘gandasi’, Khayaliram had ‘gandasi’ and Jessa Ram had ‘lathi’. Then he saw that these people started beating Om Prakash inside the shop and when he tried to save Om Prakash accused Krishna and Rajiram caught hold of him and brought him out of the shop. He does not state that shots were fired by the accused, though shots were factually fired. This witness has been disbelieved by the learned Sessions Judge. He has given cogent reasons for doing so in paragraphs 104 to 114 of the judgment. We see no reason to take a different view than the one taken by the learned Sessions Judge. Even if the testimony of this witness is accepted, he does not attribute any fatal blow specifically to any of the accused. In any case, he is not an eye witness to the shooting. He s not an eye witness to the biting of ear by Om Prakash and consequently his evidence does not further the prosecution story in any manner.
19. PW/5 Govind Ram speaks of recovery of pistols. However, there is not evidence on record to show that the shots fired in the shop were from these pistols, as factually the empty shells were recovered from the shop. There is no evidence of these shots being matched with the test shots from the pistols seized. The recovery of pistol is, therefore, inconsequential.
20. PW/6 Chandu Ram deposes to recovery of ‘gandasi’ by Khayali Ram. However, Khayaliram has been acquitted by the learned Sessions Judge.
21. PW/7 is Dr. Satya Prakash Sharma, who conducted the post-mortem and also examined the injuries of PW/1. He proves the post-mortem report and thus also proves the homicidal death of Om Prakash. However, the medical evidence, as deposed by the doctor, does not corroborate the oral claims made by PW/1 and PW/4 and this is one of the reasons for disbelieving PW/1 and PW/4.
22. PW/8 Subhash Chandra is witness to the seizure of two empty cartridges. In view of the fact that there s no Ballistic Expert’s report, this seizure is also inconsequential.
23. PW/9 Kailash Bhagwati is the Investigating Officer, who has deposed to the investigation conducted by him and PW/10 Khinv Dan is the Constable who took various items for analysis to F.S.L., Jaipur. Thus, this is the state of evidence.
24. On careful re-appreciation of the same, as made above, we are of the view that the order of conviction and sentence, as passed by the learned Sessions Judge, is unsustainable in law. PW/1 Brijlal and PW/4 Hansraj are disbelieved for reasons stated above. PW/2 Ram Chandra and PW/3 Mansha Ram were already disbelieved by the learned Judge for cogent reasons which leaves no material evidence on record to warrant conviction of the accused for any of the offences. They are, therefore, entitled to be acquitted of all the charges levelled against them.
25. In the result, the appeal is allowed. The judgment dt. 6th of Feb. ’91, passed by the learned Addl. Sessions Judge, Raisinghnagar, convicting and sentencing the accused appellants is set aside. Accused Mohan Lal is in jail. He may be released forthwith, if not required in any other case. Accused Bhani Ram and Purkha Ram are on bail, they need not surrender. Their bail bonds stand discharged.
