KASHIRAM Vs. STATE

JUDGEMENT

(1.) THIS is a joint appeal by the two accused Kashiram and Mohan Lal who have been convicted by the Additional Sessions Judge, Sri Ganganagar, for an offence under sec. 302 I. P. C. for causing the murder of Bhajanlal and have been sentenced to imprisonment for life.

(2.) THE prosecution story, put in brief is that both the accused Kashiram and Mohanlal had enmity with the deceased Bhajanlal. Mohanlal is alleged to have been beaten by Bhajanlal and his brother Binjaram P. W. 1 some time in the year 1961 A. D. Again, about four or five months before the present occurrence. Kashiram accused had filed a report in the police against the deceased Bhajanlal as well as against his brother Binjaram P. W. 1 and Hansraj P. W. 2 regarding an alleged incident of firing. THEse two incidents are said to be the cause for the crime. It may be stated here that Bhajanlal had four brothers Khyaliram, Binjaram P. W. 1, Maniram and Brijlal. Partition had taken place amongst these brothers and the tube-well shown by mark No. 11 in the site plan Ex. P-3 situated in Chak 2y fell to the share of Binjaram and exclusively belonged to him. THE prosecution story is that on 21st September. 1970, at about 9 30 P. M. while Bhajanlal (deceased ). P. W. 1, Hansraj P. W. 2 and Sohanlal P. W. 3 were returning from the tube-well of Binjaram, the accused Mohanlal and Kashiram who laid in wait for Bhajanlal near the house of one Roshanlal, marked as No. 5 in the plan, fired three gunshots at Bhajanlal as a result of which Bhajanlal fell dead in the canal marked No 3 in the site plan. According to the prosecution, the occurrence had been witnessed by P. W. 1 Binjaram, P. W. Hansraj and P. W. 4 Kishenlal who was at that time present in the house of Roshanlal. Sohanlal, however, did not witness the occurrence as he had parted company from Bhajanlal and others a little earlier and had gone in a different direction. A first information report of the occurrence was lodged by P. W. 1 Binjaram at police station Sadar. Sri Ganganagar, situated at a distance of about six miles from the place of occurrence at 11. 45 P. M. A copy of the first information report has been placed on the record and marked Ex. P. 2 After recording the first information report, the S. H. O. Bhanwarlal P. W. 5 proceeded to the spot and recovered the dead body of Bhajanlal as well as nine pieces of wads besides certain other articles out of which one Chappal alleged to be of Chandrakala. daughter of the deceased Bhajanlal needs special mention. We may point out, here, that both the accused persons were not found at their place of residence In village Chak 2y but they surrendered themselves before the Munsiff-Magistrate Fazilka, State of Punjab and were ultimately brought to Rajasthan by P, W. 5 Bhanwarlal on 5-10-70 and were thereafter prosecuted in the court of the Munsiff-Magistrate, Sri Gangangar, who after holding an enquiry committed them for trial to the court of the Sessions Judge, Sri Ganganagar, but the case was ultimately transferred to the court of Additional Sessions Judge, Sri Ganganagar, for trial,

(3.) A word may be necessary regarding the evidence of these witnesses on the question of distance from which the accused are alleged to have fired their guns at Bhajanlal. It is true that in case of estimates of distance from which a gun is fired, not much importance can be placed specially in the case of illiterate and semi literate villagers. But in the present case the discrepancy or inconsistency is so obvious and is of a considerable dimension that it adds to our doubts regarding the correctness of the prosecution version. According to the medical evidence, there were three entrance wounds, two on the left side of the chest and one on the right side and one exit wound on the right side of the back at the level of the 11th rib. It was found by the doctor that the wounds were lacerated and two entrance wounds of considerable size that is 2" x 2-1/2" x 4" and 2" x l-1/2" x 2". 25 pellets, three wads, and one shell of cartridge were also removed from the body of the deceased. In his statement dated 24-11-70, P. W. 6 Dr. A. R. Das had stated that all the three individual shots must have been fired from a distance of about six feet, and when further cross-examined, he said that the range may be between four feet to eight feet. When examined in this Court, he clearly stated that two shots must have been fired from a distance of about three feet and one from a still closer distance. Glaister in his book of Medical Jurisprudence and Toxicology (Eleventh Edition) says at page 244 : "when the gun has been fired at from 1 to 3 feet from the body, a more or less irregularly circular wound about 1 " to 2" inches in diameter will be produced. " Of course there was no blackening, no charring and no tatooing on any of the four wounds found on the body of the deceased. Yet in all probability the shots were fired at the deceased from a very close range say about three feet. P. W. 1 Binjaram has however in his statement at the trial stated that the first fire was made from 3 to 4 paces which comes to about ten feet. It appears that he tried to reduce the distance in his statement before this Court and has stated that Kashiram's muzzle was at a distance of 3 to 4 feet from Bhajanlal when he fired at Bhajanlal and Mohanlal fired from a distance of 5 to 6 feet when he made the first fire and from a distance of 2 to 3 feet when he made the third fire. He has also admitted that he had pointed out the place to the Station House Officer at the site from where Mohanlal had made the first fire and from the statement of the Station House Officer Shri Bhanwarlal P. W. 5 it transpires the place from where Mohanlal was stated to have fired by Binjaram at the time of the site inspection was at a distance of about 25 feet from the place where the dead body was lying. It is not the prosecution case that after having received the gun-shots the deceased was able to move but it is said that he fell down immediately. Here it may also be relevant to point out that Binjaram is neither illiterate nor semi-literate but is a graduate with a mature understanding and if the medical evidence is correct, as we think it is, there is inconsistency between the direct evidence and the medico-legal evidence regarding the distance from which the gun-shots may have been fired at the deceased. This factor, by itself, would not have very much weighed with us so as to discard the testimony of the eye-witnesses. But taken along with the other circumstances which we have pointed out above, this factor also has tilted the scales against the prosecution.