SURJARAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an appeal filed by Surjaram, Kesaram and Ramsingh against the judgment of the Additional Sessions Judge, Shri Ganganagar dated 7 -11 -1974 by which the appellants were convicted under Section 302 IPC and each of them was sentenced to undergo imprisonment for life. Surjaram and Kesa were charged under Section 27 of the Arms Act also but they were not convicted for the said offence.

(2.) THE prosecution case in nutshell was as follows : - Bhagwanaram, Moharsingh, Ramchandra and Pusaram were real brothers. They used to live in village Motasara Tehsil Bhadra. They were prosecuted for the offence of murder of Banwarilal brother of Surjaram appellant in the year 1965 along with their father Nanuram, but they were acquitted in that case in the year 1967. This, however, led to enmity and bad blood between them and the appellants Moharsingh was facing trial in a criminal case in the court of Sub -Divisional Magistrate Nohar and so he had gone from his village to attend the court at Nohar on 20 -2 -1972 along with Bhagwanaram. Both of them left their village on 19 -9 -1972 and boarded a train at Bhadra Railway Station and reached Nohar early in the morning on 20 -9 -1972 When they were coming from Railway Station Nohar they met Ramsingh appellant in the way near a Dharamshala On seeing Moharsingh, Ramsingh appellant caught hold of his hands and Kesaram appellant who had by that time come there having a .12 bore single barrel gun in his hand fired a shot at Mohar Singh which hit the latter on the right side above his waist. Thereafter Surjaram appellant who also had reached there having a .12 bore double barrel gun with him fired another shot at Mohar Singh which hit the latter on his back. As a result of the two shots Mohar Singh fell down and died instantaneously on the spot. His wounds began to bleed profusely and the clothes which he was wearing were soon wet with blood. Bhagwanaram raised a hue and cry, and the three appellants ran away from there. The occurrence was eyewitnessed by one police Constable Suleman who advised Bhagwanaram to rush to the Police Station for making the first information report about the incident. Bhagwanaram thereupon started from there for going to the Police Station. In the way he saw his enemy Rajmal co -accused who was discharged by the committing Magistrate having a gun in his hand. Bhagwanaram reached Police Station Nohar and lodged a verbal report with Roshan Ali, SHO the very day at 7.30 A.M. The SHO reduced the verbal report into writing and registered a criminal case undar Section 302 read with Section 34 IPC on its basis After registering the case, Roshan Ali SHO accompanied by Bhagwanaram came to the spot and deputed one Police Constable to guard the dead body of the deceased. The SHO then boarded a Jeep car and went in search of the appellants. He succeeded in searching cut the appellants at a distance of about 2 miles from Nohar. He arrested the three appellants and searched their persons. At the time of arrest Kesa @ Kesaram was found having gun Ex. 6, 8 live cartridges and a licence Ex 12 in his possession. Likewise gun Ex 7, 12 live cartridges and a licence Ex 15 were found in possession of Surjaram appellant. All these articles were taken into possession by the SHO and sealed properly by the SHO. The SHO then returned to the place of occurrence at about 10.30 A.M. and prepared inqoest report about the dead body. He noticed one fire cartridge case Ex 8 giving pellets and two overshot wads Ex 9 lying on the spot. He took these articles into his possession and sealed them properly. The SHO then called for Dr. Gangaram Medical Officer Nohar and asked him to perform post mortem examination over the dead body of Moharsingh at the spot. The doctor conducted the autopsy over the dead body at about 12.30 P.M. the very day and found the following injuries: (1) 3 cm. circular wound opposite the 6th right rib on the posterior axillary line, 6th rib fractured wound is communicating with the chest cavity. Direction of the wound is downward and to the left. There is blackening of the skin around the wound. (2) 5 cm circular wound with irregular margins on left side of the abdomen 9 cm above the anterior superior iliac spine. Direction of wound is upward and to the right. Intestine is coming out of wound. (3) 1 cm circular would with regular margins, 2 cm deep on right side of back (Chest) 5 cm below the interior angle of the scapula. (4) 1 cm circular wound with regular margin 2 cm deep on right side of back (Chest) 5 1/2 cm below the inferior angle of scapula. (5) 1 cm circular wound regular 2 cm deep on right side of back (Chest) 6 cm below the inferior angle of scapula and ju3t right to wound No. 4. (6) 1 cm circular wound with regular margins, 2 cm deep on right side of back (chest) 8 cm below the inferior angle of scapula. Upon dissection of the dead body he detected the following internal injusies: -'6th right rib fractured - Right plearas ruptured Right lung ruptured Peritoneum ruptured - Small intestine ruptured at many places. Liver ruptured - Left kidney ruptured. In the opinion of the doctor, all the injuries were ante mortem in nature and were caused by fire arm. The doctor further opined that the cause of death of Mohar Singh was severe bleeding and shack on account of firm arm injuries According to his opinion, injury No. 1 alone was sufficient to cause death in the ordinary course of nature and the other injuries could contribute to the cause of death. He claimed to have extracted 4 pellets and one card board from the dead body which he sealed and handed over to the Police vide his letter Ex. P. 23. After the post mortem examination was over the SHO took blood stained clothes of the deceased into his possession and sealed them properly The SHO then interrogated Kesaram appellant who while under the police custody gave him an information on 23 -9 -1972 which led to the discovery of a fire cartridge case Ex. 16 which was lying concealed in a tree standing on the sand dunes at a distance of about 1 1/2 miles from Nohar town. The SHO seized and sealed the fire cartridge case Ex. 16 also. Thereafter he sent all the articles i.e. guns, empty cartridges, overshot words and nine pellets to the Director Central Forensic Science Laboratory CBI New Delhi for examination. The Sensor Scienti6c Officer, Central Forensic Science Laboratory CBI examined the articles and sent report Ex. P. 29. In his report he stated that the .12 bore cartridge case contained in parcel. A which was recovered from the spot at the time of site inspection has been fired from SBBL gun recovered from the possession of Kesaram at the time of his arrest and the .12 Bore cartridge case contained in parcel D which was recovered at the instance of Kesaram and in consequence of his information has been fired from the right barrel of the gun recovered from the possession of Surjaram at the time of his arrest and pellets and wads contained in parcel A and D would have come from the two 12 bore cartridge -case marked C 1 and C 2. The SHO sent the clothes of the deceased and the blood stained earth to the Chemical Examiner at Jaipur for analysis. The Chemical Examiner found them positive for blood and forwarded them to the Serologist for Serological Examination. The Serologist after analysis found them stained with human blood. The SHO then collected the other necessary evidence in the case and upon completion of the investigation filed a charge -sheet against the three appellants and one Rajmal in the court of Munsif Magistrate Bhadra under Section 302 IPC and 27 of the Arms Act. The learned Magistrate discharged Rajmal and committed the three appellants to the court of Sessions Judge Shri Ganganagar for trial under Sections 302 IPC and 27 of the Arms Act. It appears from the record that the learned Sessions Judge later on transferred this case to the court of Additional Sessions Judge Ganganagar for trial according to law. The learned Additional Sessions judge tried the appellant and found them guilty of the offence of murder punishable under Section 302 IPC and sentenced them to imprisonment for life. He, however, did not think it necessary & proper to convict them of the offence under the Arms Act. Aggrieved by their conviction and sentence the three appellants have preferred this appeal.

(3.) FIRSTLY it has been contended by Mr. Than Chand Mehta, learned Counsel for the appellants that the Additional Sessions Judge committed a grave error in placing reliance on the testimonies of Bhagwhana Ram and Suleman eye witnesses. According to his submission Bhagwanram being the real brother of the deceased and having an enmity with the appellants was highly interested in securing conviction of the appellants Apart from this his evidence was not free from infirmities and did not inspire confidence upon close and careful scrutiny. It was further urged that Suleman PW2 was wrongly treated as an eyewitness because he did not claim to have seen any appellant firing a shot at the deceased' Besides, his name was not even mentioned in the first information report and he was not called upon to identify the appellants in a test identification parade before giving his evidence in the trial court and so his evidence relating to the identity of the appellants was of no value in the absence of earlier identification. The Public Prosecutor, on the other hand, urged that the evidence of these two eye witnesses, namely Bhagwanaram and Suleman, is entirely worthy of credence and it cannot be brushed aside merely on the ground that Bhagwanaram was closely related to the deceased and was inimical to the appellants and Suleman was not called upon to identify the appellants in a test identification parade before he identified them in the trial court.