HAKRU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 6-7-1993, passed by the Additional Sessions Judge, Banswara, by which the learned Additional Sessions Judge convicted and sentenced the accused-appellant Hakru for the offence u/S.302, I. P.C. and Section 3 of the Indian Arms Act.

(2.) The case of the prosecution is that on 22-6-1991, at about 7.00 p.m., Bhuria S/o Onkar was returning to his house along with his cattle from the water-pond after fetching water to the cattle. In the way, accused-appellant Hakru met him, who was abusing and blaming Bhuria that he had stolen seven of his sheep and was, also, challenging him that he would not spare him and will put him to death. Whereupon Bhuria asked Hakru why he was charging him as a thief. Thereupon Hakru, sitting on his Padsal (Chabutari) fired on Bhuria by his country-made gun with an intention to kill him. The fire hit Bhuria on his left side of body. Bhuria, after receiving the fire-arm injury, kept his hand on the chest and turned around. Hakru, along with his gun, proceeded towards Bhuria and hit on the head of Bhuria with the butt of his gun. Bhuria, after receiving the injuries, died on the spot. Bhuria's wife Smt. Badi (Nagri ), his son Kallu and Kallu's wife Smt. Kawdi were present at the scene of the occurrence while Khomji, Smt. Kesar, Poonja, Jeevan and Dhanji, also, came at the scene of the occurrence on hearing the altercations. When these persons reached at the place of the incident, Hakru ran away. According to the prosecution case, there was a dispute regarding a piece of land in between Hakru and Bhuria. The report of this incident was lodged at Police Station, Sadar Banswara by one Naniya, who was, also, present at the scene of the occurrence. The police, after necessary investigation, presented the challan against the accused and the accused was tried by the learned Additional Sessions Judge, Banswara. The prosecution, in support of its case, examined ten witnesses and produced certain documents, while the accused did not produce any evidence in his defence. The learned Additional Sessions Judge, after trial, by his judgment dated 6-7-1993 convicted the accused-appellant for the offences under Section 302, I.P.C. and Section 3 of the Indian Arms Act and sentenced him to imprisonment for life and a fine of Rs. 1000.00 and in default of payment of fine to further undergo rigorous imprisonment for a period of three months under Section 302, I.P.C. and for a term of three months' rigorous imprisonment with a fine of Rs.250.00 and in default of payment of line to further undergo fifteen days' rigorous imprisonment under Section 3 of the Indian Arms Act. Aggrieved thereof, the appellant has preferred this appeal.

(3.) It is contended by the learned counsel for the appellant that there are material discrepancies in the statement of the prosecution witnesses regarding the place where the incident took place and the injuries inflicted to the deceased by the appellant. There are, also, material discrepancies between the statements of one witness and the another as well as in their own statements. It has also, been contended by the learned counsel for the appellant that the independent eye-witnesses, viz., Mata Nagri, Bhomji and Bherji, who were admittedly present at the scene of the occurrence, have not been produced by the prosecution and though the articles were sent for chemical examination but neither the report of the State Forensic Science Laboratory nor the report of the Ballistic Expert has been produced by the prosecution and, therefore, an adverse inference may be drawn against the prosecution and the appellant should be acquitted. It has, also, been argued by the learned counsel for the appellant that Narain Singh, the Investigating Officer, as well as the Malkhana Incharge, under whose custody the articles were kept, have not been produced by the prosecution and their non-examination is a serious omission on the part of the prosecution and the appellant, therefore, deserves to be acquitted. In support of its contention, learned counsel for the appellant has placed reliance over: J.K. Devariya v. State of Coog. (AIR 1956 Mys 51), Harnam Singh v. The State (1982 Cri LJ 1818), Bhupal Singh v. The State of Rajasthan (1989 (1) RLR 492) and Chanan Ram v. State of Rajasthan (1992 Cr LR (Raj) 332). The learned Public Prosecutor, on the other hand, has supported the order passed by the learned trial Court and has submitted that the presence of the eye witnesses, produced by the prosecution, is most natural and they have given the true version of the case and there is no material discrepancy in their statements and they are reliable and truthful witnesses and they have rightly been relied upon by the Court below. So far as the non-production of Mata Nagri, Bhomji and Bherji is concerned, it is contended by the learned Public Prosecutor that these persons came at the scene of the occurrence immediately after the occurrence and there appears justification in not producing the witnesses who came at the scene of the occurrence after the incident was over particularly when there were sufficient number of eye witnesses available with the prosecution and, therefore, the non-production of these three witnesses does not affect the prosecution case in any way. So far as the non-production of the reports of State Forensic Science Laboratory and the Ballistic Expert are concerned, it is contended by the learned Public Prosecutor that their non-production can, at the best, be taken to the extent that the recoveries made in this case, will not be read against the accused-appellant but so far as the evidence of the eye witnesses is concerned, that cannot be discarded merely on account of non-production of the F.S.L. and Ballistic Expert's reports. So far as non-production of Narain Singh, Investigating Officer, and the Malkhana Incharge, is concerned, it is contended by the learned Public Prosecutor that though the non-production of these two witnesses is a serious omission on the part of the prosecution but the evidence of the eye-witnesses cannot be thrown-away on this count alone, particularly when the statements of these witnesses, recorded by the investigating officer, has neither been denied by these eye witnesses nor these witnesses have been confronted with their statements recorded under Section 161, Cr. P.C. by the Investigating Officer. In support of its contention, the learned Public Prosecutor has placed reliance over: Basant Singh v. State of Bihar (1985 Cri LJ 1406), Fahim Henson v. The State of Uttar Pradesh (1984 Cri LJ NOC 154) and Avdeshwar Singh v. State of Bihar (1989 Crimes 89).