HARI RAM Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by Hari Ram who has been convicted by the Sessions Judge, ganganagar, by his judgment dated 28th January, 1963 under Section 302 I. P. C. for having committed the murder of Thakar Ram and has Been sentenced to imprisonment for life.

(2.) THE deceased Thakar Ram had two brothers Biru Ram and Gopal (P. W. 2 ). Hanuman (P. W. 1) is the son of Biruram. Mst. Supari, sister of Hanuman was married to Hari Ram appellant while Mst. Vidhya, sister of the appellant, was married to Shankerlal, brother of Hanuman. Hart Ram had been convicted in a criminal case and was sentenced to five years' rigorous imprisonment. After his release from jail he and his father Ramchander resided in village Kanwarpura, where Biruram, Thakar Ram and Gopal also resided. The case for prosecution is that Mst. Vidhya left the house of her husband and went away to her parent's house for reasons, which need not be mentioned here. On this Mst. Supari is said to have left the house of her husband Hari Ram and gone to the house of her parents. This happened some six months before the date of occurrence and gave rise to bad blood between the two families. It is further alleged by the prosecution that on 25th February, 1962 at about 9 a. m. Thakar Ram accompanied by his nephew Hanuman (P. W. 1) was going to the school building in Kanwarpura where polling in connection with the last General Elections was going on. They passed outside the house of Ramchander and Hari Ram. Ramchander and hari Ram at that time were standing outside their house. Hari Ram ran after hanuman in order to assault him. Thakar Ram intervened and thereupon ramchander caught hold of Thakar Ram. Meanwhile Hari Ram went Inside his house and brought a 12 bore single barrel gun and fired at Thakar Ram when he was running away having got himself released from Ramchander. Thakkar Ram received the gun shot wound on the right side laterally in the lumbar region and at once fell down. This occurrence, according to the prosecution, was witnessed by hanuman (P. W. 1) and) Gopal (P. W. 2 ). other villagers assembled at that time and Thakar Ram was carried in a motor vehicle borrowed from one of the polling parties to Raisingh Nagar Hospital. Dr. R. S. Agarwal, Medical Officer Incharge dispensary Primary Health Centre, Raisinghnagar, examined Thakar Ram at 11. 05 a. m. The wound of entry of the shot was a lacerated wound 2" x 1" with inverted edges and blackening of skin in the right renal area. The wound of exit was a lacerated wound 1" x 1/2" with averted margin left side of abdomen 2" above the umbilicus. Thakar Ram was at that time conscious. Shri ram Kumar, Second Class Magistrate, Raisinghnagar was called to record the dying declaration of Thakar Ram and his dying declaration (Ex. P. 8) was recorded by the said Magistrate at 12. 20 p. m. on the same day, Thakar Ram was thereafter carried to the Government Hospital at Ganganagar where he succumbed to injuries at 9 p. m. on 25th February, 1962. The post-mortem examination of the dead body of the deceased was performed by Dr. A. R. Acharaya (P. W. 3) at 11 a. m. on 26th February, 1962. In the opinion of the doctor the cause of death was haemorrhage and shock due to injuries of liver and ascending colon. Hari Ram was arrested at Chak 58 F on 25th February, 1962 at 5 p. m. but Ramchander absconded and could not be arrested for a long time. Baldev Singh, Circle inspector, Raisingh Nagar searched the house of Hari Ram on 25th February, 1962 and recovered the gun (Ex. 1) lying concealed in a heap of cow-dung cakes in the courtyard of Hari Ram's house. It was seized under recovery memo Ex. P. 6. It was sent to the Ballistic Expert and the Ballistic Expert's report is that it was in working order. After committal proceeding both the accused stood their trial before the Sessions Judge, ganganagar--Hari Ram under Section 302 I. P. C. and Ram Chancier under section 302 read with, Section 34 I. P. C. Both the accused pleaded not guilty. Hart Ram denied the prosecution case altogether and pleaded that he had gone to village Mukha before the date of occurrence and was coming from Mukha to Kanwarpura on the morning on the day of occurrence when he was arrested by the villagers at 58 F. at 8 a. m. because some Baoris had suspected him to be a muslim from Pakistan. Of the two eye-witnesses produced at trial Hanuman (P. W. 1) and Gopal (P. W. 2), Hanuman turned hostile. He stated that at the time of murder of Thakur Ram he was not with him but was in the school building where polling was going. He received the information of the incident from Hansraj Godara and when he reached near the house of Banwari he found Thakar Ram in a wounded condition. Gopal (P. W. 2) supported the prosecution case. The prosecution also proved the dying declaration (Ex. P. 8) by the evidence of shri Ram Kumar (P. W. 6) and Dr. R. S. Agarwal (P. W. 8 ). The learned Sessions judge believed the evidence of Gopal (P. W. 2) and also the fact that Thakar Ram had made the dying declaration (Ex. P. 8 ). Relying on this evidence he held that hariram had fired at Thakar Ram, as alleged by the prosecution, which resulted in his death. The appellant has examined certain witnesses to prove that he was not near the place of occurrence at 9 a. m. on 25th February, 1962 but was in Chak 58 F having been detained by the villagers of that Chak. This evidence was disbelieved by the learned Sessions Judge.

(3.) IN this appeal it is contended that the evidence given by Gopal was not true and that he had not at all witnessed the firing at Thakur Ram. The learned counsel for the appellant has advanced various arguments why the evidence of Gopal (P. W. 2) should not be believed and we shall take note of them when we shall discuss his evidence. It is then urged that the dying declaration (Ex. P. 8) suffered from certain infirmities and could not be relied on. The main question for consideration in this appeal, therefore, is whether the evidence relied on by the learned Sessions judge for convicting the appellant was not properly appraised. We shall first take into consideration the evidence of Gopal (P. W. 2 ). (After discussing the evidence of P. W. 2 and considering the objections, his Lordship continued ). The trial Court which had the opportunity to watch the demeanour of the witness, believed him. We do not find that the evidence of Gopal should be disbelieved on the grounds advanced by the learned counsel for the appellant.