PIYARE LAL Vs. SHANKAR DASS

JUDGEMENT

(1.) THERE are two revision applications before me. One is directed against the order of acquittal passed by the learned Sessions Judge of Mahasu In a case in which the opposite party was convicted by a Magistrate under Section 337 I. P. C. and sentenced to pay a fine of Rs. 200/ -. The other revision application is directed against an order of the District Magistrate dismissing the complaint of Lumbru, the applicant, against Shankar Dass and his wife Ludri for alleged offences punishable under Sections 307 and 307/114 I. P. C. and also for action under Section 403 (4) of Cr. P. C. Both the revision applications arise out of a common set of facts relating to the same incident described below together with the findings of fact arrived at about it.

(2.) IT appears that on 24-7-1968, at about 11 A. M. , when Paerey Lal. the son of the applicant Lumbru, was ploughing in his father's field, together with his cousin Maulu, a few feet ahead a gun shot was heard from the direction of the house of the opposite party Shankar Dass shown in the site plan at a distance of 110 ft. presumably to the northwest of the field of Lumbru. Between the field and the house of Shankar Dass is shown, in the site plan (Ex. P-11/a), an orchard with a large number of trees in it. There are actually three rows of these trees shown between Point A, in the verandah of Shankar Dass, and Point B, where Paerey Lal was ploughing. In the second row, the point shown as D is the place where some feathers of a bird were picked up by the Police, and marks of gun shots were also found there on trees in the orchard. It appears that Paerey Lal was injured by gun shots and fell a few feet away. He deposed, as the main prosecution witness, that he lay there from 11 to 3. 00 P. M. , but no attempt was made in this period to find out who had fired the gun. This statement of Paerey Lal certainly indicated that the identity of the person who had fired the gun was not known, presumably because he could not be seen due to the trees in the fruit orchard. The learned Sessions Judge, in his order of acquittal, found:

(3.) IT is true that prosecution witnesses stated that the place where Paerey Lal was ploughing was clearly visible from the house of the accused Shanker Dass. which was higher up, but the learned Sessions Judge had believed the defence evidence, based on the site plan prepared by Devi Singh, P. W. 11. the Investigating Officer. The correctness of the site plan was not questioned by any one. The site plan, together with the statement of the accused and the defence witnesses, had justified the finding of the learned Sessions Judge that the place from where the gun was fired was not visible.