M.C. Jain J.
1. The appellant has been convicted for the offence under Section 302 I.P.C., by the Sessions Judge, Banswara, by his judgment dated 19.11.1975, and has been awarded sentence of imprisonment for life.
2. The prosecution case in brief is that the deceased Kalu and the accused Kuberiya, along with the witness Homiya (P.W.), were the Chowidars at the Dynamite Magzine (Mahi Dam ) On the night of 9th May, 1975, Homiya (P.W.5) and the appellant Kuberiya were on duty and in the day there was the duty of Kalu. The timings of the duty, as given out by P.W.5 Homiya, were that day duty the was from 8.00, a.m., to 5.00, p.m. and the night duty was from 5.00, p.m. to 8.00, a.m. On the night of occurrence Kuberiya came on duty at about 8.00, p.m. after three hours of the commencement of the duty, which was objected to by Kalu deceased. The deceased Kalu told the accused that he had been amending his duty habitually late Kuberiya said that he would be proceeding to take his meal. It was also objected to by the deceased and he said that he may send for his meals at the spot, but accused did not agree. Thereupon, it is said that the accused fired a shot from his gun, which h t the deceased it his chest and the other parts of the body. The accused there after ran away. The witnesse Homiya ch(sic)ased him up to some distance, but he could not catch hold hf him, so he returned back and on his return he found Kalu dead. Homiya then reported the matter to Partu (P.W.16). Partu is the elder brother of the deceased Kalu. The members of the family of Kalu came to the spot and thereafter Partu went to lodge the report at the Police Station. Banswara. The report was lodged on that very night at 12.30. a.m., in which it was stated that the accused shot down the deceased Kalu, as stated by Homiya to him at his residence. On the report Ex. P/12, a case under Section 302, I.P.C., was registered and investigation was undertaken by P.W. 19 Nirbhaya Singh, A.S.I. He visited the spot and conducted the spot investigation. The accused was arrested on 12.5.1975 vide memo Ex. P/17. On the information of the accused a gun was also recovered, though the same has not been produced in Court. The accused was committed to the Court of Sessions for trial. At the trial the prosecution examined as many as 19 witnesses. The statement of the accused was recorded, in which he denied the entire prosecution case. One Khemji was examined in defence as D.W. 1. After hearing the arguments the learned Sessions Judge relying on the number of facts and circumstances, as stated in question No. 8, found the accused guilty for the offence under Section 302, I.P.C., and sentenced him to imprisonment for life. The accused has preferred this appeal through jail.
3. We have heard Shri Doongar Singh, learned Counsel for the appellant, and Shri H.N Calla, Public Prosecutor, for the Stale and we have also perused the record of the case.
4. The learned Sessions Judge relied on the testimony of Homiya (P.W. 5), who was an eye witness of the occurrence. Besides the statement of Homiya, the learned Sessions Judge further placed reliance on the circumstance that a pair of shoes (Article 1) belonging to the accused were found near the dead body of Kalu immediately after the occurrence. A further circumstance has also been pressed into service by the learned Sessions Judge that a gun was recovered from the accused on his information Ex P/8. He also relied on the evidence that the accused was in possession of a gun during those days and the circumstance of absconding was also taken note of. Besides the occular evidence and the above circumstances, reliance has also been placed on the extra judicial confession made by the accused to the witness Berji (P.W. 9). Learned Counsel for the appellant submitted that the evidence of Berji does not in any way connect the accused with the commission of the offence. The allegen statement of the accused to him does not amount to an extra judicial confession. Besides that, the circumstance of recovery of gun cannot be pressed into service, as the gun has not been produced in the Court and there is no evidence to the effect that the gun recovered was the gun, which was used at the time of occurrence. The circumstance of the pair of shoes, said to be of the accused, is also immaterial. As regards the statement of Homiya, the learned Counsel for the appellant submitted that the solitary statement of Homiya should not be believed, more particularly when according to the statement of this witness made to the police the deceased Kalu himself was armed with a gun, and, this possibility cannot be ruled out, as stated by Berji, that in altercation, the gun, which was in the hand of Kalu, might have been pulled up, as a result of which the deceased died.
5. What is to be seen is as to whether there is reliable evidence on record, which may connect the accused with the commission of the offence. It is true that there is the sole testimony of Homiya and there is no other occular testimony. How far the testimony of Homiya is reliable, is to be seen. We agree with the learned Counsel for the appellant that the other circumstances, which have been relied upon by the learned Sessions Judge, are not very helpful to the prosecution. Seizure of pair of shoes of the accused from the place of occurrence, does not in any way lead to connect the accused with the commission of offence. Similarly the recovery of the gun from the possession of the accused on his information, is also not very material in view of the fact that the gun has not been produced in the Court. The statement of Berji also does not in any way implicate the accused. Even if this evidence is ignored, still, in our opinion, the offence is amply brought home to the accused by the evidence of P.W. 5 Homiya, whose testimony appears to be credible and trustworthy. Nothing has been pointed out as to why the testimony of Homiya should not be believed. Homiya was on duty and as such his presence at the spot could not be doubted, and, there was no reason for Homiya to falsely implicate the accused Kuberiya. It has not been suggested that there was any reason for him to rope the accused for commission of such a serious offence. Homiya's statement all through out has been consistent and categorical that it was the accused, who fired a shot from his gun, which hit the deceased, as a result of which he died. Soon after the occurrence Homiya narrated this fact to Partu and thereupon Partu lodged the first information report. Thus, it cannot be said that the statement of Homiya gets corroboration from the statement of Partu, which is corroborated by the first information report, which was lodged on the same night at 12.30 within a few hours of the occurrence. The occurrence is said to have taken place at about 8.00, p.m. It is also pertinent to note that the range of fire given by Homiya is 5ft. This statement of Homiya regarding range of fire gets corroboration from the post-mortem report, in which it is shown that there was blackening on various wounds. The post mortem report indicates that there was a close range fire. The fire being of close, range, as is evident from the post mortem report, lends credibility to the statement of Homiya and further there appears also to be the reason for the accused to have acted in the manner as alleged. His duty started at 5.00, p.m., but the accused came at about 8.00 p.m., and this was his usual practice, which was objected to by the deceased, who was the Head Chowkidar. The learned Counsel for the appellant pointed out some contradictions, which have come in the statement of Homiya, but, in our opinion, those contradictions do not in any way affect the credibility of the testimony of this witness. Thus, relying on the testimony of the witness Homiya, corroborated by Partu and further corroborated by the post mortem report, in our opinion, offence is amply proved against the accused.
6. Thus, the appellant has been rightly convicted for the offence under Section 302, I.P.C.
7. In the result, we find no force in this appeal, so it is hereby dismissed.