BANSI LAL Vs. STATE

JUDGEMENT

(1.) KRISHAN Lal who had gone for hunting along with Om Parkash in Sera forest on 16.2.1975, himself fell prey to a stray bullet allegedly fired by the appellant hitting the deceased in his head resulting in his instantaneous death. Om Parkash PW lodged report, Ex. PA, with Police Station; Ramnagar on 17.2.1975 resulting in lodging of FIR No. 11 of 1975 where after the appellant was arrested and prosecuted. On proof of Charge under Sec. 304 -A RPC the appellant was sentenced to undergo RI for 5 years and pay a fine of Rs. 500 vide the judgment impugned in this appeal. The judgment is alleged to be against law and facts requiring interference by this Court. It is submitted that the court below failed to appreciate the major discrepancies existing in the statements of witnesses and the material improvements made regarding the occurrence resulting in the death of Krishan Lal.

(2.) ACCORDING to the prosecution the deceased and complainant had gone for shooting along with one patwari of patwar halqa Seera on 16.2.1975. The patwari returned back to his headquarters at about 1 p.m. whereas the complainant and the deceased remained in the forest. In the evening when both of them were sitting under a Deodar tree, a gun shot hit Krishan Lal on his head as a result of which he fell on the ground. Two dogs appeared at the site who were driven away. The complainant noticed a person running who could not be identified. He cried at the person running telling him that he had killed Krishan Lal as such he should also shoot him. The complainant thereafter lodged the FIR and after investigation the investigating agency came to the conclusion that the appellant was responsible for the death of the deceased. In order to prove their case the prosecution examined, Om Parkash, Parkasho, Pathanu, Hari Chand, Beli Ram, Shanker Dass, Patwari. Amru handa Hari Ram, Daya Ram, Anayat Ullah, Nasib Chand, Om Parkash Sethi, Muni Lal and Darshan Kumar, as witnesses. I have heard learned counsel for the appellant and perused the record. No one has appeared for the State to support the conviction and sentence.

(3.) MR . Bhagotra, learned counsel appearing for the appellant has argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubt and that in fact; one Parkasho was responsible for the death of the deceased. It is submitted that the appellant has wrongly been roped in with the object of saving the said Parkasho. It is alternatively contended that the sentence awarded is excessive and disproportionate requiring interference. From the FIR lodged immediately after the occurrence it transpires that after the patwari had left the company of the deceased and Om Parkash, a stray -bullet hit the head of the deceased where after two dogs came on the spot and the complainant saw one person running from near the place of occurrence who could not be identified on account of the invisibility as it was evening in a jungle. However, in his statement recorded under Sec. 161 Cr.P.C. the complainant is alleged to have seen Parkasho running from the jungle but did not name the appellant nor did he mention the name of any other persons present in the vicinity. Unfortunately no date is mentioned in the statement of the complainant -recorded u/s 161 Cr.P.C. In his statement recorded in the trial court on 8.11.1978 the witness again mentioned the presence of Parkasho in the jungle but did not mention anything about the appellant. He has stated in his cross -examination that the said Parkasho was kept under restraint by the police in connection with the death of the deceased and that the appellant was taken into custody only after the third day of occurrence. He has even gone to the extent of deposing that he along with said Parkasho have been bearing the expenses of the presence of the police in the village where they had camped for 4/5 days. Parkash s/o Tarloku PW has stated in his statement recorded u/s 164 Cr.P.C. that he along with the appellant had gone for shooting in the forest along with one patwari. He and the appellant separated at about 1.30 p.m. and when they reached at a place known as Mange -da -kotha, Bansi appellant fired a shot. He went to the appellant and inquired as to upon which he had fired in reply to which the appellant told that he had fired at a wild cock. Thereafter they started their return journey when the appellant told the witness that he had seen a bear and immediately fired at it. It was dark at that time. Both of them ran away as, according to them, they were apprehending that the bear may attack them after being injured. He came to know from Dewan Chand and Man Chand that one person bad died in the forest by a gun shot. The witness went to the home of the appellant and informed him that he had fired upon a human being, which, according to him, was a bear. In his statement recoded u/s 164 Cr.P.C. and in cross -examination admitted that he was in possession of a gun without a license. He was kept in police custody for 3 days before his statement u/s 164 Cr.P.C. was recorded. He was allowed to go home only after getting his statement -recorded u/s 164. He has denied the suggestion that Krishan Lal had, in fact, died by a gun shot fired by him. He has also denied that Om Parkash PW had seen him in the forest and told that Krishen Lal had been killed. Dr. Harbhajan Singh PW who conducted the post -mortem of the deceased, found the following injuries on his person: