SHIV RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is an appeal by the appellant Shiv Ram, against the judgment of the learned Sessions Judge, Sawai Madhopur, Camp at Gangapur City, whereby the appellant has been sentenced or offence under Sec. 302 Penal Code to life imprisonment and a fine of Rs. 1,000.00 and in default of payment of fine, R.I. for two months.

(2.) The prosecution story, in brief, is that on 21st Nov., 1978 during the day time Ramdayal (PW 3) was taking fits buffaloes to the water hut and he met the appellant Shiv Ram on his way. Both Ramdayal and Shiv Ram are the residents of Village Gopalpura. The appellant Shiv Ram made a sarcastic remark as to why Ramdayal walked obliquely. Upon this remark, Ramdayal retorted that it was Shiv Ram who walked obliquely. However, after this small exchange of words, Ramdayal proceeded with his buffaloes and thereafter, went to his field to operate the water pump. At the time of dusk, Ramdayal, along with Shrimohar (PW 4), was returning on a cart and when he reached the house of Ramswaroop, the appellant threw a stone at Ramdayal as a result of which Ramdayal received an injury on his shoulder. Ramdayal made an oral complaint to Jhabbu, Kelashsahay, Harsi, Jaidhari and Gulya about this incident. Those persons came to the house of Ramswaroop where appellant Shiv Ram was sitting. They complained to the appellant as to why he had hit Ramdayal with a stone. The appellant, Shiv Ram, quietly went inside the house of Ramswaroop and thereupon those persons who had come to complain against the incident of stone-throwing returned back to the-house of Kalu. After sometime, the appellant Shiv Ram alongwith twenty six (26) others formed an assembly outside his house so as to attack those persons who had complained against the incident of stone-throwing. They were armed with lathi, pharsa and dhariya. The appellant Shiv Ram and others hurled abuses and adopted a posture of attack on the complainant party. The appellant Shiv Ram was armed with a gun and he took his position at the 'Jharokha' (Balcony) on the first floor of his house. The appellant and his companions continued with abuses and did not stop even after the complainant party requested them not to hurl abuses. The appellant Shiv Ram exclaimed that he would give them a lesson and then he opened fire from his gun which hit Harsi, who was standing across the road in front of the house of appellant Shiv Ram. Harsi died on the spot and his dead body was taken to the Government hospital at Toda-Bheem. A report was lodged by Jaldhari (PW 2), the brother of the deceased, at Police Station, Toda-Bheem the same day. Post-mortem examination of the dead body was conducted the next day by Dr. Sohanlal (PW 1), who found gun shot pellet wounds, 88 in number, in the right upper half of the chest of deceased Harsi and on the surface of the upper half of the right arm. Three pellet wounds were also found on the surface of the neck and some on the right side of the face. These were small punctured wounds, 1/2 cm x 1/2 cm in size, these wounds were of varying depths and oval in shape. The direction" of these wounds was antero posterior. Dr. Sohanlal was able to remove 30 pellets which had penetrated the right lung of the deceased and 3 pellets were removed from the upper arm. The cause of death was said to be shock and haemorrhage due to the wounds in the right lung caused by the pellets. The pellets, 33 in number, removed from the dead body of Harsi were sealed by the Doctor. The 'Kurta' worn by Harsi contained holes caused by the pellets and it was forwarded by the Doctor to the Police Officer conducting investigation. The police recorded first information report (Ex.P 13) on the basis of the written report (Ex.P 2) lodged by Jaldhari at the Police Station, Toda-Bheem at 8.00 p.m. on 21.11.1978. The Police Station is at a distance of about 5 kms. from the village Gopalpura where the incident had taken-place. The Police Officer, Ram kripal (PW 17), proceeded to the scene of occurrence and prepared the site-plan (Ex.P 3) in the presence of two witnesses, Mithya (PW 10) and Ramkishore (PW 11). The details regarding location of the houses at the place of incident have been given in the annexure to the site-plan (Ex.P 3A). The distance between the place where the deceased Harsi was standing by the roadside and the place from where the gun shot was fired was recorded as 23 arm-length (about 35'). The height of 'Jharokha' (Balcony) from where the gun was fired was described to be 10 arm-lengths (about 15) from the ground. Blood-stained soil was taken into possession by the Police Officer in the presence of Mithya (PW 10) and Ramkishore (PW 11). The house of appellant Shiv Ram was searched on 22.11.1978 at about 4.00 p.m. in the presence of Mithya (PW 10) and Ramkishore (PW 11) and one single-barrel country-made gun was recovered from the house. The appellant Shiv Ram, was, however, not present. This gun was found to be un-licenced and un-numbered and was in a rusted condition. One licence book relating to another gun of 12 bore bearing No. 14473 was also found. This licence related to a double-barrel gun which was recovered after more than seven months at the instance of Ramjilal from a 'Tibara'. The Police Officer arrested some members of the assailant party on different dates but since the appellant Shiv Ram was not available, he could not be arrested till 30.5.1979. After the appellant was arrested on 30.5.1979, an information under S. 27 of the Evidence Act was recorded by the Police Officer Shri K.G. Gupta, (PW 20) on 10.6.1979 wherein it was disclosed by the appellant that a gun has been given by him to Ramjilal, who lived in the Purani Basti at Jaipur. Ramjilal, another accused, surrendered himself in the Court on 6.7.1979. The Police Officer took him in police custody and, during the course of investigation, Ramjilal also gave an information to the Police Officer on 10th July, 1979 that he had kept a double-barrel gun of 12 bore in a 'Tibara' near the temple of Balaji. The Police Officer, on the basis of this information, recovered a gun on 13th July, 1979.

(3.) After completing the investigation, a charge-sheet was filed against the appellant and 26 others. The appellant was charged with the offence under Sec. 302 Penal Code by the learned Sessions Judge, Sawai Madhopur and the other 26 persons were charged with S. 143 of the IPC. The prosecution examined 20 witnesses. The learned Sessions Judge did not find the charge under Sec. 143 Penal Code proved against the 26 persons and he, therefore, acquitted all of them of the said offence. The appellant, Shiv Ram, was sentenced for offence under Sec. 302 IPC.