S.S. Byas, J.
1. By his judgment dated February 16, 1979 the learned Sessions Judge, Udaipur convicted accused Some Singh under Section 302, IPC and sentenced him to imprisonment for life. The accused has come up in appeal to challenge his conviction and sentence.
2. In brief, the prosecution case is that deceased-victim Chamna Meghwal lived in village Rohimala Police Station Oyna District Udaipur with his daughter PW. 3 Mst. Kanchan, wife Mst. Tammu and Mst. Kanchan's husband Dalla. Tammu and Dalla co-accused are who have been acquitted by the Court below. It is alleged that Chamna took Mst. Mohini as his second wife and this sowed the seeds of discordance between him, his wife Tammu and his son-in-law Dalla. It is alleged that deceased Chamna wanted his son-in-law Dalla to go away from his house and live separately at some other place. This had further embittered his relations with his wife Tammu and son-in-law Dalla. In the night between 16th and 17th May, 1978, PW. 8 Teja, PW. 9 Bhera, co-accused Dalla and the deceased-victim Chamna were sleeping on separate cots in a common court yard, as shown in site plan Ex. P 13. At about 11 00 P.M on 16-5-78, co-accused Dalla went away from there taking the pretext that he was going to see some fair in a nearby village. At about 2.00 A.M. (17 5-78) PW. 8 Teja and PW. 9 Bhera got awakened by a gun shot. Both of them stood up from their cots and saw Chamna with a gun-shot injury in his right abdomen. Accused Somsingh was seen by them standing 4 to 5 feet away from the cot of Chamna with a gun in his hand. The accused atence took to heels and disappeared. Many persons collected there at the place of occurrence, before whom PW. 8 Teja and PW. 9 Bhera disclosed that they had seen the accused-appellant with a gun just after the gun shot. PW. 1 Dalit who is the real brother of PW. 8 Teja and whose house H situate nearby the place of incident, also happened to come there. He was sent to lodge the report of the occurrence. PW. 1 Dalla reached Police Station, one at about 8.15 A.M. on 17-5-78 and verbally lodged report Ex. P 1 of the. occurrence. The police registered the case and took up the investigation. The Station House Officer PW. 12 Sabir Ali arrived at the scene of occurrence and prepared the inquest report of the victim's dead ,body. He inspected the site and prepared the site plan and seized the blood-smeard soil from there. He also seized the blood stained clothes of the deceased-victim, viz, Dhoti, Baniyan and towel. The autopsy of the victim's dead body was conducted at about 9.45 A.M. on 18-5-78 by PW. 14 Dr. O.P. Garg, the then Medical Officer Incharge, Primary Health Centre, Jhadol. He found the following wounds on the victim's body:
There were four gun shot punctured circular wounds situated on the right side of the abdomen over the right hypochondrim right epigastric and right umpblical region as shown in the diagram. All the four wounds were circular in shape, fatty tissues were coming out from the wound surface. The edges of the wounds were blackened and inverted.
Size - A. 1/4 cm. in diameter
B. 0.7 cm. in diameter
C. 06.8 cm. in diameter
D. 0.6 cm. in diameter
On opening the body he found the following:
On dissection it was found that underlying tissues were congested. The direction of the wound was upwards and back wards. All the four wounds have penetrated the liver which ruptured the liver. Further the pellets had travelled through diaphargm and entered the left lung causing injury to the left lung. Two flatenned metallic pellets were disected outfrom the posterior surface of the substance of the It ft lung. One rounded large metallic pellet was disected out from the posterior side of the body lodged in between the broken rib No. 3 and 4 and upper part of the left scapula. The other was disected out close to the spinal cord from the posterior wall of the left thorax. The spinal cord was fractured. There was left intra throsic and intra abdominal haemorrhage. Both the cavities were filled up with dark fluid blood.
The injuries were ante-mortem and caused by some firearm. In the opinion of Dr. Garg, the death of the victim had taken place due to gun-shot injury by metallic pellets causing damage to the vital organs of the body, the liver, lung, large vessels etc, followed by haemorrhage, shock and death. He was further of the opinion that the gun was fired at the victim from his front side and from a distance of 4 to 6 feet. The post mortem examination report issued by him is Ex. P.20. The accused-appellant was arrested on 21-5-78 and in consequence of the information furnished by him, one muzzle loading gun, one gold 'Bear' and the licence of gun were recovered from his house where he had hidden them. It revealed during investigation that the gun belonged to PW. 11 Laxmansingh and from him the accused had borrowed it a few days before the occunence. The gun and the other seized articles were sent for Chemical Examination. Blood was found on the clothes of the victim. The gun recovered was found in working condition. The four metallic pieces as per report Ex P 16 of the Central Forensic Science Laboratory, New Delhi, could have been fired from the muzzle loading gun recovered at the instance of the accused. Accused Mst. Tammu and Dalla were also arrested. It was suggested that the gold 'Bor' was given to the accused-appellant by Dalla (PW. 1) and Tammu On the completion of investigation, the Police filed the challan against the accused-appellant and the two others viz, Dalla and Tammu in the Court of the Additional Munsif and Judiciil Magistrate, Udaipur, who in his turn-committed the case for trial to the Court of Sessions The learned Sessions Judge framed charges under Section 302 and in alternative under Section 302/34, IPC against all the three accused persons, to which they pleaded not guilty and claimed to be tried. During trial, the prosecution examined 14 witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of trial, the learned Sessions Judge found no incriminating material as against accused Dalla and Tammu. They were consequently acquitted. He, however, held the charge under Section 302, IPC duly proved against the accused-appellant He was, therefore, convicted and sentenced as mentioned above. Aggrieved against his coviction and sentence, accused Som Singh has taken this appeal.
3. We have heard Shri Doongersingh, learned Counsel appearing for the accused-appellant and the learned Public Prosecutor. We have also gone through the case file carefully.
4. As regards the cause of death, the opinion of Dr. Garg (PW. 14) was not challenged before us by the learned Counsel nor was he in a position to challenge it. Dr. Garg was of the positive and firm opinion that the death of victim Chamna was due to the wounds caused by the gun shot. We find no good and cogent reasons to disagree with the opinion of Dr. Garg It, therefore, stands proved that the death of Chamna was not natural but it was homicidal in nature. Chamna was gunned to death.
5. Mr. Doongersingh, the learned Counsel for the appellant vehemently contended that the accused was erroneously convicted on almost nil evidence. No doubt PW. 8 Teja and PW. 9 Bhera made every attempt to make themselves as ocular witnesses of the occurrence but there are cogent and convincing reasons to show that both of them have no regard for truth and have deposed falsely to implicate the accused-appellant. It was argued that the First Information Report Ex. P.1 was lodged by PW. 1 Dalla. PW. 1 Dalla had met the two eye witnesses and the other villagers before he left for the Police Station to lodge the' report. He had reasons to come to know that the shot was fired by the accused-appellant and yet strangely enough the name of the accused-appellant and for that matter of no miscreant was mentioned in Ex P 1. In reply, the learned Public Prosecutor submitted that the name of the accused-appellant could not come in the knowledge of PW. 1 Dalla before he lodged the First information Report Ex. P.1. As such, the name of the accused-appellant was not mentioned in Ex. P.1. We have given our thoughtful consideration to the respective submissions.
6. There is over-whelming evidence on record to show that PW. 1 Dalla had come to know or was told by PW. 8 Teja and PW. 9 Bhera that they had seen the accused-appellant standing with a gun near the cot of the deceased-victim just after the gun-shot was fired PW. 1 Dalla, in his cross-examination admitted that PW. 8 Teja and PW. 9 Bhera along with many other inhabitants had gathered at the site of occurrence. PW. 3 Mst. Kanchan, who is none else but the daughter of the deceased-victim, admitted in her cross-examination that PW 1 Dalla and many other persons had assembled there on the spot just after the occurrence within a few minutes. PW. 8 Teja and PW. 9 Bhera who were sleeping near the cot of the deceased-victim were also present there. Dalla (PW. 1) was sent to lodge the report PW. 5 Dewoo, who is the mother of PW 1 Dalla, admitted in cross-examination that PW. 8 Teja and PW. 9 Bhera told those who had collected there at the scene of occunence immediately after the gun shot that they had seen the accused-appellant running away with a gun. The same facts have been admitted by PW. 6 Sohan Bai PW. 7 Nan Singh admitted in his cross-examination that when he reached the spot within a few seconds of the occurrence, he saw PW. 8 Teja and PW. 9 Bhera standing there. They told him and the other persons collected there that they had seen the accused-appellant with a gun and running away just after the gun-fire. PW. 1 Dalla was also present there at that time when the above two witnesses disclosed the said information. Dalla thereafter left the village to lodge the report to the police. PW. 8 Teja Ram stated that he, Bhera (PW. 9), deceased-victim Chamna and the co-accused Dalla were sleeping on separate cots in the common court yard. At about 31.00 P.M., Dalla (co-accused) went away to see some fair in a nearby village. At about 2 00 A.M. he woke up hearing the gun-shot. He saw acused Somsiogh with a gun in his hand. The accused at once took to heels and disappeared. Many persons including PW. 1 Dalla assembled at the spot within a few seconds of the occurrence. They had come there on hearing gun-shot. He and Bhera (PW. 9) told them all who had collected there that they bad seen accused Somsingh with a gun in his hand there. Thereafter the villagers sent PW 1 Dalla to lodge report to the Police. It may be mentioned that PW 1 Dalla is the real brother of this witness Teja. In cross-examination he again admitted in unequivocal words that when he told the villagers that he had seen the accused-appellant with fun after the gun-shot, his brother Dalla (PW. 1) was present. It was only thereafter that Dalla left to lodge the report at the Police Station. PW. 9 Bhera deposed that he was also sleeping on a cot nearby that of Chamna in the common courtyard. At about 2.00 AM he woke up hearing the gun-shot. He saw accused-appellant Somsingh standing at a distance of 5 to 10 paces away from the cot of the deceased-victim with a gun in his hand. The accused tock to heels and thus escaped. In cross examination he admitted that the inhabitants of the village including PW 1 Della arrived at the spot within a few seconds of the occurrence. He and PW. 8 Teja told them all that they had seen the accused-appellant with a gun in his hand and thereafter running him away.
7. A careful analysis of the evidence of these witnesses, referred to above, reveals that PW 1 Dalla reached the place of occurrence within a few seconds. Many other villagers assembled there. PW. 8 Teja and PW. 9 Bhera were also present there Therefore, if PW. 8 Teja and PW. 9 Bhera disclosed the name of accused Somsingh as the person standing with a gen in his hand, it must have been heard by PW. 1 Daila. The evidence further reveals that PW. 1 Dalla was sent to lodge the report at Police Station by the villagers in the presence of PW. 8 Teja and PW. 9 Bhera. As such, we are induced to say that if the name of the accused-appellant was disclosed by Bhera (PW. 9) and Teja (PW. 8)(eye witnesses), it must have come to the knowledge of PW. 1 Dalla. If it had come to his knowledge, there was no reason for him not to mention the name of the accused-appellant in the First information Report Ex P.1.
8. A perusal of Ex. P.1 shows that the facts recited in it could not be mentioned unless its author Dalla (PW. 1) was apprised of the facts mentioned therein.
9. Now, the non-mentioning of the name of the accused-appellant in Ex. P 1 makes the entire prosecution story highly suspicious as against him. The irresistable and unescapable inference from these cited facts and circumstances is that in fact PW. 8 Teja and PW. 9 Bhera had not seen the accused-appellant Somsingh with a gun in his hand or running him away from the scene of occurrence as alleged by both of them. PW. 1 Dalla admits that the name of the accused-appellant was not disclosed before him. As pointed out earlier, he left the place of occurrence to go to the Police Station only after many persons had collected there. PW. 8 Teji and PW. 9 Bhera were also there. Therefore, we find no good reason for Dalla (PW. 1) not to mention the name of the accused in the First Information Report Ex. P.1, if the name of the accused-appellant was disclosed to him by PW. 8 Teja and PW. 9 Bhera. It is also beyond our comprehension that if Teja (PW. 8) and Bhera (PW. 9) Wad seen the accused-appellant at the spot, they would not have disclosed his name. They could not disclose the name of the accused-appellant for the simple reason that they had not seen him as alleged by them. If they had seen him, the name of the accused-appellant must have been mentioned in the First Information Report Ex. P I in the normal circumstances. As such the omission of the name of accused-appellant Simsingh in the First Information Report Ex. P.1 is of vital significance and makes the entire prosecution story highly suspicious. The claim of PW. 8 Teja and PW. 9 Bhera to have seen the accused-appellant, as alleged by them, is totally false and unbelieveable. In fact, they had not seen the accused-appellant as suggested b, them.
10. It was next argued by the learned Counsel that when the Investigating Officer Sabir Ali (PW. 12) arrived at the scene of occurrence and prepared the inquest report Ex. P.2 and site plan Ex. P.3 together with site inspection memo Ex. P.12 PW. 8 Teja and PW. 9 Bhera did not come forward to disclose the occurrence. Since they had alleged that they had seen the occurrence it was natural for them to come forward before the Investigating Officer and disclose that they had teen the accused appellant with a gun in his hand at the time of the occurrence. But both of them did not come forward before the Investigating Officer at the crucial moment. This conduct of these two alleged eye witnesses is highly unnatural and casts serious doubt about their claim to have seen the occurrence. The learned Public Prosecutor contended, on the other hand that since these two eye witnesses were not present when the Police arrived, no adverse inference should be drawn against them.
11. As stated earlier, PW. 8 Teja and PW. 9 Bhera have alleged to have seen the accused-appellant with a gun in his hand at the time of occurrence. It they had seen the occurrence, they would have disclosed the name first of all at the time when the inhabitants of the village collected at the spot and PW. 1 Dalla was sent to Police to lodge the report. As held above, they did not disclose the name of the accused-appellant at that moment.
12. They also did not come forward before the Investigating Officer when he arrived at the spot and prepared the inquest report, inspected the site and prepared the site plan and inspection note. Had these two witnesses seen the accused-appellant with a gun as alleged by them, there was no reason for them not to come before the Investigating Officer when the latter inspected the site, prepared the inquest report and made preliminary investigation. After-all, both these witnesses have claimed to have seen the occurrence. It was, therefore, natural for them to have come forward before the Investigating Officer at the earliest moment when the inquest report was prepared. Their not coming before the Investigating Officer at that crucial moment is a serious circumstance which cannot be lightly ignored while assessing their testimony. If the witness has seen the commission of the murder and yet remains silent and does not come forward before the Investigating Officer to disclose what he had seen, it casts a serious doubt about his presence and his assertion to have seen the incident. In Bhmwari v. The State of Rajas than (1978 RLW 340), a Division Bench of this Court observed:
If the facts about the occurrence are mentioned in the inquest report, it would go to show that by that time the true version of the recurrence had been given therein. If, however, the facts of the incident are not mentioned in the inquest report, the argument that till that time the Investigating Officer who had prepared the inquest report was not definite about the factual position.
In Balaka Singh and Ors. v. The State of Punjab : 1975CriLJ1734 the names of four out of nine accused were found missing in the body of the inquest report. Their Lordships held that the complicity of those four culprits in the commission of crime could rot be accepted.
13. Here in the instant case in our hand, the position is still worse. Here the alleged eye witnesses PW. 8 Teja and PW 9 Bhera did not come forward before the Investigating Officer at the time of his preparing the inquest report to state that they had seen the accused-appellant with the gun in his land at the time of the incident. This conduct on the part of the two alleged eye witnesses is higly reprehensive and destroys their very claim to have seen the incident.
14. The gun was recovered at the instance of the accused. But report Ex P.16 of the Central Forensic Science Laboratory is not of any help to the prosecution. The gun was found in working order but no opinion on the time of its last firing could be ascertained. The four metallic pieces could, of course, be fired from the recovered gun but these metallic pieces could also be fired from any muzzle loading gun. As such the report Ex. P.16 is of no material consequence and furnishes no incriminating material against the accused-appellant.
15. The recovery of gold 'Boar' at the instance of the accused has already been rejected by the learned Sessions Judge. It requires no consideration. The accused was convicted solely on the testimony of PW. 8 Teja and PW. 9 Bhera. But in our opinion, they are not the ocular witnesses of the incident and their claim to have seen the accused with a gun in his hand is absolutely false. The conviction of the accused, therefore, cannot be maintained on the basis of what they testified.
16. No motive has been alleged against the accused-appellant by the prosecution, for his committing the murder of the victim Chamna. Both of them belong to different castes. No suggestion of previous enmity or strained relations has been made by the prosecution.
17. For the reasons mentioned above, we are unable to maintain the conviction of the accused under Section 302, IPC. His conviction is bad and must be set aside.
18. In the result, we allow the appeal of accused Som Singh. His conviction under Section 302, IPC and the sentence passed thereunder are set aside. He is acquitted of the said offence. He is in jail and shall be immediately set forth at liberty if not wanted in any other case.