Milap Chand Jain, J.
1. This appeal by the State is directed against the judgment of the Additional Sessions Judge, Sri Ganganagar dated February 13,1974 where by, the learned Sessions Judge acquitted the accused Maniram of the offence Under Section 302, IPC and Section 27 of the Arms Act and the accused Hariram of the offence Under Section 302 read with Section 114, IPC.
2. The deceased Hazurasingh and the accused-persons Maniram and Hariram had their fields adjoining to each other towards south of their village Saharni. Some 20-22 days prior to the occurrence, Hazurasingh put up a fencing over his field, which was dismantlted by the accused Maniram and others, which resulted in quarrel between Hazurasingh and Maniram. Since then, Maniram was annoyed with him. It is alleged that on 22-6-1972, Hazura Singh had gone to the field to work in the sugar-cane crop. His wife PW 1 Surjeet Kaur and son PW 2 Jaskaran aged about 13 years went to the field carrying meals for Hazurasingh. At about 12.30 p.m. all the three were returning from the held to their village. Hazurasingh was 1 kila ahead of Surjeetkaur and Jaskaran. When Hazurasingh reached near the water-course of the village, the accused Maniram and Hariram sons of Lalu Jat, were seen coming from the village, Maniram gave 'Lalkara' to Hazurasingh and thereafter he fired a shot from his pistol. Hariram was armed with a gun. He exhorted to kill Hazurasingh so that, enemy may not escape. Maniram, thereafter fired three. shots. Hazurasingh fell down and died. It is also alleged that PW 4 Sukhram was also present on the spot at some distance and had witnessed the occurrence The accused-persons, then, went towards the village. Both Surjeet Kaur and Jaskaran first came to their house and then, Surjeet Kaur went to the house of Ramji, who was not at his house. PW 3 Ganpatram was present there to whom she narrated the occurrence. PW 5 Chhoturam and Patram were sent to the spot. Mst. Surjeet Kaur (PW 1) accompanied with Ganpatram went to the police station and she lodged the report (Ex. P 1) at the police station Tibi at 3 p.m. on the same day. PW 13 Nisar Ahmed, ASI, registered the case and visited the spot along with the Medical Officer, he prepared the site-plan (Ex.P2) and site-inspection note (Ex. P 14). He recovered empty cartridges (Article 5) vide memo Ex. P 6. Furd Surat Hal Lash (Ex. P 4) and Panchnama (Ex. P 3) were prepared. PW 6 Bhimsingh, SHO, arrested the accused Maniram on 29-6-1972 and recovered his licence of pistol (Article 1) and three empty cartridges from his possession. He prepared the arrest memo Ex. P 9 and the recovery memo Ex. P 10. The accused Hariram was arrested on 6-2-1972 and one rifle along with licence were seized from his possession. After spot investigation, investigation was conducted by Shri Bhimsingh, SHO. Autopsy was conducted by Dr. K.C. Mittal (PW 9) After completion of the usual investigation, charge sheet was presented against the accused-persons. The accused-persons pleaded not guilty to the charges with which they were charge-ed and claimed to be tried. At the trial, the prosecution examined PW 1 Mst. Surjeet Kaur, PW 2 Jaskaran, PW 3 Ganpatram, PW4 Sukhram, PW3 Chhotu Singh Constable (who carried the sealed packets to Jaipur), PW 6 Bhimsingh, SHO., PW 7 Ramchandra Constable (incharge Malkhana, Police Line, Kotwali), PW 8 Jaswantsingh, Constable (who carried the sealed packets to the office of the Expert), PW 9 Dr. K,C. Mittal, PW 10 Maniram Constable (incharge Malkhana), Police Station, Tibi, PW11 Dr. G.R. Prasad, Ballistic Expert, PW 12 Amarsingh, Constable (who carried the sealed packets from police station to Ganganagar Police Lines and PW 13 Nisar Ahmed, ASI. The statements of the accused-persons were recorded. The learned Sessions Judge, after hearing the arguments, acquitted both the accused-persons with which they were charged. The learned Sessions Judge did not place reliance on the testimony of the eye-witnesses PW 1 Mst. Surjeet Kaur, PW 2 Jaskaran and PW 3 Sukhram. We shall be dealing with the reasonings given by the learned Addl. Sessions Judge for discrediting the testimony of the eye-witnesses. The learned Addl. Sessions Judge also doubted the recovery of empty cartridges from the spot. Thus, the circumstantial evidence of recovery of the empty cartridge having been connected with the pistol, recovered from the possession of the accused Maniram, has also not been believed by the learned Additional Sessions Judge. Consequently both the accused-persons were acquitted of the offences as it was found that no case is made out against them and they were given the benefit of doubt. Dis-satisfied with the order of acquittal, the State has preferred this appeal.
3. We have heard the learned Public Prosecutor assisted by Shri S.R. Singhi, learned counsel for the complainant and Mr. S.N. Deedwania, learned counsel for the accused-respondents.
4. It may be stated that this is an appeal against the acquittal. From both the sides, case law has been referred on the point as to how this Court should exercise its power while hearing the appeal against an order of acquittal. What has been emphasised by Mr. S.N. Deedwania, learned counsel for the respondents, is where the view of the evidence taken by the learned Additional Sessions Judge is possible, then this Court should not interfere in the order of acquittal even when this Court may be of the opinion to take a different view. We may refer here the rule or principles enunciated by the Supreme Court on this question. In K. Gopal Reddy v. State of Andhra Pradesh : 1980CriLJ812 . Their Lordships of the Supreme Court followed the case of Sanwatsingh v. State of Rajasthan : 1961CriLJ766 , and Sheo Swamp v. Emperor AIR 1934 PC 227 and relied on R.V. Fantle 1959 Cr.L.R 584, Miller v. Minister of Pensions 1947 (2) All. E.R. 372 and Khem Koran v. State of U.P. : 1974CriLJ1033 . Their Lordships explained the case of Ramabhupala Reddy v. State of A.P. : 1971CriLJ422 and Bhim Singh Rup Singh v. State of Maharashtra : 1974CriLJ337 . O. Chinnappa Reddy, J. observed that:
At one time it was thought that an order of acquittal could be set aside for 'substantial and compelling reasons' only and court used to launch on search to discover those 'substantial and compelling reasons'. However, the 'formulae' of 'substantial and compelling reasons', good and sufficiently cogent reasons' and 'strong reasons' and the search for them was abandoned as a result of the pronouncement of this Court in Sanwantsingh v. State of Rajasthan. In Sanwantsingh case, this Court harked back to the principles enunciated by the Privy Council in Sheo Swamp v. Emperor, and reaffirmed those principles. After Sanwant Singh v. State of Rajasthan, this Court has consistently recognised the right of the Appellate Court to review the entire evidence and to come to its own conclusion bearing in mind the considerations mentioned by the Privy Council in Sheo Swamp's case. Occasionally, phrases like 'manifestly illegal', 'grossly unjust', have been used to describe the orders of acquittal, which warrant interference. But, such expressions have been used more as flourishes of language, to emphasis the reluctance of the Appellate Court to interfere with an order of acquittal than to curtail the power of the Appellate Court to review the entire evidence and to come to its own conclusion.
The further principles that--'if two reasonable conclusions can be reached on the basis of evidence on record, the Appellate Court should not disturb the finding of the trial court', was added to the principle Sanwantsingh's case (supra) in Ramabhupala Reddy's case (supra) and in Bhimsingh Rupsingh's case (supra), which was explained and it was observed that:
This, of course, is not a new principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities most be left out of account. To entitle an accused-person to the benefit of a doubt arising from the possibility of a quality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused-person may claim must be reasonable. 'A reasonable doubt', it has been remarked, 'does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other; it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons.
The following observations of Lord Danning in Miller's case (supra) was relied upon:
Proof beyond a reasonable doubt does not mean proof beyond a a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable', the case is proved beyond reasonable doubt, but nothing short of that will suffice.
A further following observation made in Khem Karan's case (supra) was also relied upon:
Neither mere possibilities nor remote possibilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused-person, if there is otherwise fairly credible testimony.
5. Mr. S.N. Deedwania, learned counsel for the respondents cited the decision of the Supreme Court in K. Lakshmana Rao v. The Public Prosecutor, State of Andhra Pradesh and Anr. : 1979CriLJ1067 , wherein, it was observed that where two views are possible and the view taken by the lower court was one, which could be taken on evidence and the High Court may not agree with that view and may be prepared to take another view is no ground to reverse judgment of acquittal. This principle already stands explained in K. Gopal Reddy's case(supra). It is true that if the view taken by the trial court was one, which could not be taken on evidence then there is no interference in the order of acquittal.
6. Mr. S.R. Singhi, learned counsel for the complainant referred to some more cases. The observations made in those cases are relevant and to some extent are helpful, while considering the appeal against the acquittal. In Shivaji Sahebrao Bobade and Anr. v. State of Maharashtra : 1973CriLJ1783 , Krishna Iyer, J., observed as under:
An appellant aggrieved by overturning of his acquittal deserves the final court's deeper concern on fundamental principles of criminal justice. The present accused, who have suffered such a fate, have hopefully appealed to us for a loaded approach against guilt in consonance with the initial innocence presumed in their favour fortified by the acquittal that followed. We are clearly in agreement with this noble proposition, stated in American Jurisprudence at one time (not now, though) as implied in the rule against double jeopardy, in the British system as a branch of the benefit of reasonable doubt doctrine and in our own on the more logical, socially relevant and modern basis, that an acquitted accused should not be put in peril of conviction on appeal save where substantial and compelling grounds exist for such a course. In India, it is not a jurisdictional limitation on the appellate court but a judge-made guideline of circumspection. But we hasten to add even here that, although the learned Judges of the High Court have not expressly stated so, they have been at pains to dwell at length on all the points relied on by the trial court as favourable to the prisoners for the good reason that they wanted to be satisfied in their conscience whether there was credible testimony warranting, on a fair consideration, a reversal of the acquittal registered by the court-below. In law there are no fetters on the plenary power of the Appellate Court to review the whole evidence on which the order of acquittal founded and, indeed it has a duty to scrutinise the probative material de novo, informed, however, by the weighty though that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive consideration. In our view the High Court's judgment survives this exacting standard.
In Salim Zia v. State of Uttar Pradesh : 1979CriLJ323 , the legal position was summarised as under:
1. The High Court in an appeal against an order of acquittal Under Section 417 of the Code of Criminal Procedure, 1898 has full powers to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence, the order of acquittal should be reversed.
2. The different phraseology used in the judgments of this Court such as:
(a) 'substantial and compelling reasons',
(b) 'good and sufficiently cogent reasons',
(c) 'strong reasons',
is not intended to curtail or place any limitation on the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion as stated above but in doing so it should give proper consideration to such matters as (i) the views of the trial Judge as to the credibility of the witnesses; (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened at his fact that he has been acquitted at his trial; (iii) the right of the accused to the benefit of any real and reasonable doubt; and (iv) the slowness of an appellate Court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses.
7. In a recent decision of Mahinder Singh v. State of Punjab and Anr. : 1986CriLJ834 , their Lordships of the Supreme Court stated that 'the High Court itself was a final court of facts and it was its duty to satisfy itself regarding the correctness and acceptability of the evidence. Thus, it was entirely open to the High Court to re-appraise the evidence once again to consider the facts, which may have been overlooked by the Sessions Judge and it should have decided the appeal itself instead of remanding the case to the Sessions Court.' In that case, the High Court remanded the case for writing a fresh judgment. The Supreme Court sent back the case to the High Court to rehear the appeal on merits according to law.
8. In the light of the principles discussed above, the evidence has to be assessed, scrutinised and appraised and it is to be seen as to whether the view taken by the learned Sessions Judge is a view, which can be taken of the evidence or is a view which is unreasonable and which has resulted into miscarriage of justice warranting interference by this Court.
9. The prosecution in this case relies on the ocular testimony of three eye witnesses namely; PW 1 Surjeet Kaur, PW 2 Jas Karan and PW 4 Sukhram. Besides the ocular testimony, reliance has also been placed by the prosecution on the circumstantial evidence of recovery of an empty from the scene of occurrence, which stands connected with the pistol recovered from the possession of the accused Maniram. The learned Sessions Judge, after giving resume of the statements of the witnesses and after cataloguing the case-law cited on behalf of both the sides proceeded to consider the question as to whether the presence of the witnesses was proved or not. Then he first dealt with the statement of P. W. 4 Sukhram and found that the statment of PW 4 Sukhram was not trustworthy for several reasons. After considering the statement of PW 3 Ganpatram, he dealt with the evidence of PW 1 Surjeet Kaur and PW 2 Jas Karan. It is significant to note that the learned Sessions Judge has nowhere recorded any finding that the presence of the witnesses Surjeet Kaur and Jaskaran at the scene of occurrence, is not proved or is rendered doubtful or is incredible or is untrust-worthy. Without recording any such a finding as their evidence is not acted upon, it can be taken that their evidence can not be believed. Both these witness categorically stated that they were returning from the field and deceased Hazurasingh was ahead of them at distance of about 1 Kila and they saw both the accused-persons coming from the village and the accused Maniram fired fatal shots from his pistol. The learned Judge found infirmity in the statements of these witnesses on the basis that their evidence is discrepant with the medical evidence in as much as according to the medical officer, the food in the stomach of the deceased was not undigested and the occurrence took place at 12.30 p.m. in the noon. The undigested food show that the deceased could not have taken his meals before 11 a.m. The witnesses also stated that the deceased had taken his meals at about 10 to 10.30 am. The learned Sessions Judge, there fore, observed that either the deceased Hazurasingh did not take his meals at the time stated by these two witnesses or he did not die at the time stated by them. The second reason that the learned Sessions Judge considered that if the witnesses have been present on the spot, the assailants would not have spared them. They would not have spared to give evidence against them. The third reason given by the learned Sessions Judge is that no motive of any type has been proved. The fourth reason given by the learned Sessions Judge is with regard to the manner in which, the accused used the pistol. It was stated that manner of the user of the pistol, is given differently by P.W. 1 Sureet Kaur and P.W. 2 Jas Karan. A further discrepancy was noticed in the statement of P.W. 1 Surjeet Kaur, if viewed in the light of the medical evidence. The medical officer found injuries on the chest and stomach, and according to P.W. 1 Surjeet Kaur, there were two injuries in the stomach. The discrepancies in the statement of the, eyewitnesses and the medical evidence with regard to the nature and direction of the wounds, was also noticed and the learned Sessions Judge, thereafter, observed that there are lot of contradictions in the statements of P.W. 1 Surjeet Kaur, P.W. 2 Jaskaran, P.W. 3 Ganpatram P.W. 4 Sukhram and P.W. 9 Dr. K.C. Mittal which cannot be ignored.
10. In our opinion, the evidence of P.W. 1 Surjeet Kaur and P.W. 2 Jaskaran has not been viewed and considered in the correct and proper perspective and it appears that superflous unfounded and unreasonable view has been taken by the learned Additional Sessions Judge in respect of the evidence of these two witnesses. Undue and unwarranted emphasis and significance has been attached to the reasons, which have been taken into account by the learned Additional Sessions Judge, while considering the reliability of their evidence. The prosecution case has been consistent that Mst. Surjeetkaur and Jaskaran had gone to their field carrying the meals for Hazurasingh and Hazurasingh had taken his meals at the field P.W. 1 Surjeet Kaur has stated that Hazurasingh had taken his meals at about 10 or 10.30 a.m. and the occurrence had taken place at about 12 or 12.30 p.m. in the noon. She gave the details of items of the meal and utensils and she stated that the utensils were brought by her. P.W. 2 Jaskaran, her son aged about 13 years has fully corroborated the statements of P.W. 1 Mst. Surjeetkaur and there is no discrepancy in their statements. P.W. 2 Jaskaran stated that his father had taken his meals and Lassi at about 10 a.m. In the post-mortem examination, Dr. K.C. Mittal found 'semi-solid undigested food in the stomach'. Dr. Mittal, in the cross-examination stated that if the food is taken 15 minutes before then such undigested food would be found. In re-examination, Dr. Mittal stated that he cannot say, in what time in this case the digestion would have begun. Generally, the digestion begins in one hour or 1-1/2 hour. In view of the statement of Dr. K.C. Mittal, in the re-examination, there does not remain any discrepancy. Besides that, it appears that emphasis on this aspect of the case is misplaced. Their testimony with regard to the time is not based on a watch. The time stated by them, is only an approximate time. It would be most unrealistic view of their testimony to discredit the same on the basis that it does not reconcile with the medical evidence. Firstly, it reconciles and secondly exactness of time, cannot be expected from such rustic witnesses. In Ahivaji Aahebrao Bobade's case(supra), it has been observed:
The sluggish chronometric sense of the country-side community in India is notorious since time is hardly of the essence of their slow life; and even urban folk make mistakes about time when no particular reason to observe and remember the hour of minor event like taken a morning meal existed. 10.30 a.m. could well have been an hour or more one way or the other and too much play on such slippery facts goes against realism so essential in a testimonial appraisal.
11. Reference may also be made to Duraipandi Thevar and Ors v. State of Tamil Nadu 1973 SCC (Cri) 486. In that case as will, an argument based on the time of eating and death was advanced; that the evidence conflicted with the medical evidence. It was observed that 'the deposition of PW 1 with respect to time when he and the deceased ate or drunk Kambu Kanji and when the occurrence in question took place cannot be considered to be meticulously precise as if he had noted the time by reference to watch; he must he considered to have deposed about the time more or less according to his general impression. It may also be remembered that his evidence was recorded after a long interval. This criticism was rejected by the High Court and we think rightly.
12. Thus, in our opinion, on the alleged discrepancy nothing would turn and the learned Additional Sessions Judge has wrongly employed the said reasoning to affect the credibility of the testimony of these two eye-witneses. Rather, in our opinion, the presence of semi-solid undigested food in the stomach establishes the truthfulness of the prosecution case and the testimony of the two witnesses. The witnesses appear to be truthful in their version that they carried the meals for Hazurasingh to the field where Hazurasingh took the meal and took Lassi and after sometime, they returned from the field and while they were coming in the way, the occurrence took place. The presence of undigested food in the stomach adds to the credibility of the testimony of PW 1 Surjeetkaur and PW 2 Jas Karan. This fact also finds mention in the verbal report, lodged by Mst. Surjeetkaur soon after the occurrence at about 3 p.m. at the police station, Tibi, which was at a distance of 15 miles from the place of occurrence.
13. The second reason also does not appear to be cogent and sound. It is not necessary that the conduct of the assailants should always be to do away with all the witnesses present at the scene of occurrence. It may be stated that there was no dispute of Maniram with Mst. Surjeetkaur and her son Jaskaran. It may be mentioned that both the witnesses themselves did not act in the manner of causing any interruption or intervention in the assault and any action of the assailant. Had the there been any such conduct, the assailants might have resorted to deal with such intervenors. Both the witnesses were away from Hazura Singh and they came near the dead-body when the accused-persons have left the place of occurrence. The normal behaviour of the accused-persons is not to avail the witnesses who may even be the near relation of the victim.
14. For the third reason regarding the motive of the accused-persons, it may be stated that it has come in the statement of PW 1 Surjeetkaur that the fencing put up by Hazurasingh in two bighas, was removed by the accused-persons some 20-22 days ago, which resulted into wrangle and altercation. In cross-examination, PW 1 Surjeetkaur stated that the dispute with the accused-persons was over the 'bad' and there was no other enmity. Thus, it cannot be said that there was no motive. A particular cause may be motive with one and may not be so with the other and it may be that such a trifling dispute over the fencing might have been taken strongly by the accused-persons. Besides that, if the presence of these two witnesses is established which in our opinion cannot be doubted then the question of motive loses much of its importance.
15. In respect of the fourth reason regarding the manner of using the pistol, it may be stated that it is most insignificant. It may also be mentioned that PW 1 Surjeetkaur also corrected herself in her statement. She first stated that the accused Maniram took pistol on his right shoulder but she immediately corrected and said that the pistol was in his hand and he aimed it keeping in the front. PW 2 Jaskaran clearly stated that Maniram fired four shots and used the pistol after stretching his had infront of his shoulder.
16. As regards the discrepancy relating to the position of injuries that too, in our opinion, is inconsequential and does not in any way affect the credibility of PW 1 Surjeetkaur.
17. Dr. K.C. Mittal (PW 9) found the following injuries on the person of Hazurasingh:
(1) Gun shot would oval in shape with inverted margins, bleeding size 3/4' x 1/2' in the mid-right hypochondrium wound is traced upward and backward by the probe. Shirt is torn over wound
(2) Gun shot wound size 1-3/4' at the lower end of the left side of chest in mid-axillary size. The edges are inverted. Wound is continued down wards and posteriorly as he is identified by probe. Shirt is torn
(3) Gun shot wound with inverted margins. Size 3/4' x 1/2' with ulterior medial size of lower and of left arm. Little bleeding. Wound is printing upward and posterior through bone. Shirt over wound is torn
(4) Gun shot wound 1-1/4 x 3/4' with margins everted ragged with severe bleeding on the posterio lateral size of the upper fifth of left arm. Shirt over wound is torn.
(5) Gun shot wound in intra scapular region right side 1' x 1/4' x 3/4' circular everted and ragged margins with severe bleeding
(6) Gun shot wound mid back left side 1-1/2' x 1' ragged and everted margings with severe bleeding.
18. Injury No. 1 was on the right side and injury No. 2 was on the left side of the chest. With the passage of time, it may be that PW 1 Surjeet Kaur might have given a different site of the injury in giving description, but she appears to be correct, when she stated that there were two injuries on two different sides. The learned Additional Sessions Judge also considered the direction of the injuries. On that basis as well, he has discredited the evidence of PW 1 Surjeetkaur. Injury No. 1 is upward and backward. Injury No. 2 is down-ward. PW 1 Surjeet Kaur stated that the surface of the land or level of the land is the same, the direction of injuries shows that the elevation of the land over which, the assailants and victim were placed, should be different. One should be at the higher level and the other should be at the lower level. It may be stated that PW 1 Surjeetkaur has deposed that her husband was taller than Maniram. Besides that it may be stated that the land may be an even. On the basis of the direction and the position of the injuries, in our opinion, the statement of PW 1 Surjeetkaur can not be discarded. Her statement has also been considered in the light of the testimony that she has not stated about the observance of any empty on the spot either in the beginning soon after the occurrence or when the police visited the spot. She deposed that initially, when the accused-persons had left the place of occurrence and had crossed about 1 Killa or 1-1/2 Killas, then they came near the dead-body and remained there for 5-10 minutes and she did not return back after bringing the villagers on the spot. She did not observe any empty cartridges near the dead-body, nor took care of it. According to PW 13 Nishar Ahmed, SHO., the empty was lying at a distance of 5'-6' from the dead-body and the blood was also spreading up to a distance of 5'-6'.
19. Some contradictions have appeared in the statement of PW 1 Surjeetkaur, which have not been specifically referred to by the learned Additional Sessions Judge, but those contradictions are not very material. It did not appear in Ex. P 1 (FIR) and in Ex. D 1 police statement that the shots were fired after her husband had fallen down. In the FIR she stated that Maniram thereafter fired 3-4 shots successively after the first fire. At the trial, she came with the different version that the accused fired four shots. She stated that she does not know how more number of fires are stated in Ex. P 1. Similarly, she stated that she has not stated in Ex. P 1 that her husband fell down on the second shot. Similarly she was also contradicted as to show it is not mentioned in Ex. P 1 and Fx. D 1 that at the time of occurrence, Sukhram (PW 4) was present at 2 Killas or 2-1/2 Killas. According to her, she stated so. These omissions or contradictions are matsers of detail and do not in any way affect the credibility of the witnesses.
20. After having discussed the statement of PW 1 Surjeetkaur, we are unable to agree with the view taken by the learned Addl. Sessions Judge. If the statement of PW 1 Surjeetkaur is read as a whole in the light of the other evidence, ocular and medical and in the light of the other circumstances of the case, particularly prompt FIR and the Medical evidence relating to the presence of undigested food in the stomach, these factors fully, assure the truthful character and neat and honest version of the occurrence, so far as Maniram accused is concerned. The learned Addl. Sessions Judge primarily discarded the testimony of PW 1 Surjeetkaur and PW 2 Jaskaran on the basis of presence of undigested food in the stomach of the deceased, which reason, our opinion, is most unsatisfactory. It may be stated that the FIR was lodged within 2-1/2 hrs. after the occurrence. The police station was at a distance of 15 miles. Sufficient details of the occurrence have been stated in the FIR. The weapon of offence finds mention in the FIR., which was made use of by the accused Maniram. The exact place, where the occurrence took place is also stated in the FIR and this fact also finds mention that she and her son had gone to the field carrying the meal for the husband. We find ourselves unable to conceive the entire version given in the FIR as concoction and that it was a murder, not witnessed by PW 1 Surjeetkaur and PW 2 Jaskaran and the accused-persons were named at the instance of Maniram Jhorad as suggested by the learned counsel for the respondents. There was no reason for Mst. Surjeetkaur to falsely implicate the accused Maniram in the commission of such a heinous offence screening the real culprit. If she had not witnessed the occurrence and if the assailant was not known, she would have given that version and would have tried to get the investigation done for apprehending the real culprit and would not have proceeded to implicate falsely the accused.
21. Besides the statement of PW 1 Surjeetkaur, there is a very material evidence of PW 2 Jaskaran. Although, he is a child of 13 years, but solely on the basis of his age, his evidence does not become untrust worthy and unreliable. His evidence has not been dealt with by the learned Additional Sessions Judge except on the point of the presence of undigested food in the stomach. In the cross-examination, his evidence in any way has not been shaken or is rendered unworthy of acceptance. It may be mentioned that the sole testimony of PW 2 Jaskaran can be relied upon implicity so far as the accused Maniram is concerned, as he has clearly deposed that Maniram had fired the shots from his pistol at his father and done him to death. How much reliance can be placed on his testimony with regard to Harirm we shall he dealing with the same while discussing the case of Hariram. But so far as Maniram is concerned, we find no infirmity affecting the acceptability or reliability of his evidence. So far as the third eye-witness PW 2 Sukhram is concerned, his testimony has been considered to be untrustworthy by the learned Additional Sessions Judge for which it can be said that satisfactory reasons have been given. It may be stated that at the time of occurrence dust storm was blowing. He was at a distance of 203 Pawandas about 1100 ft. he had tried to reduce it to 200 steps. PW 1 Surjeetkaur stated that she was at a distance of 2 killas or 2-1/2 killas. Reduction of distance on his part contrary to the site-plan, makes his statement unworthy of acceptance. Although, it is stated in the FIR (Ex. P 1) that he had witnesssed the occurrence but even according to the version of Surjeetkaur, he was at a considerable distance, so, it can be said that it was non possible for him to witness the details of the occurrence. His statement is also rendered untrustworthy without considering it in the light of the entry in the daily diary (Ex. P 8). At what time the entry was made is also not clear from the statement, as he has stated that he had returned to the site of the occurrence when the police had come and remained with the police. The time of making entry coincides with that and admittedly, the entry was not made on the spot. Besides that Ex. P 8 is laconic, in as much as, no details have been mentioned in the diary regarding the number of shots and also regarding the accused, who actually fired. Had he witnessed, these details would have found mentioned in the daily diary Ex. P 8. Considering the infirmities in the statement of Sukhram, it would not be proper to place reliance on his testimony and the learned Additional Sessions Judge was right in not placing reliance. To us, it appears that he was at a considerable distance at the time of occurrence, so, he could not see the actual occurrence. Much time must not have been taken in the total occurrence. PW 1 Surjeetkaur appears to have stated in Ex. P 1 that PW 4 Sukhram had witnessed the occurrence as she had spotted him at a distance.
22. Now, we may deal with the circumstantial evidence of recovery of the empty from the spot. The learned Addl. Sessions Judge has considered this aspect of the case and observed that the empty cartridge could not have been recovered from the site and that the possibility of substitution cannot be ruled out. He has dealt with the matter in the manner that the accused-persons were not arrested for a period of 7 days for which, no reasons have been put-forward. The exact site of the recovery of the empty is not shown in the site-plan or in the Panchanama. The empty was not found with coated with sand although dust storm was blowing. Besides that, this infirmity was found in the investigation that bullets, which pierced through the body of Hazurasingh making exits, were not recovered from the earth beneath the body. In connection with this aspect of the case, reference has also been made to the statement of PW 4 Sukhram & PW 3 Ganpatram. Ganpatram stated that the police had put the wooden seals on the packet. PW 4 Sukhram in the committing court has stated that the empty cartridge recovered was made of card-board and brass. How far the statements of these two witnesses would affect the recovery is to be seen. Further the learned Addl. Sessions Judge considered the delay in sending the sealed packets to the ballistic expert for examination. It has also been taken into consideration by the learned Additional Sessions Judge that the pistol was semi-automatic and ejection of empty is automatic. Instead of one three more empties, would have been found on the spot and the three empties could not be picked up. There is no evidence of picking up the empties. The learned Additional Sessions Judge, therefore, concluded that either the fourth cartridge said to have been recovered from the site is a manipulation or that no firing was done by the accused at the spot. He was not prepared to hold on this evidence that any cartridge was recovered near the dead-body. The evidence on the contrary shows that the cartridge recovered was some other one but later on it was substituted.
23. We may straight of mention that the finding as to the recovery of empty is contradictory and this observation of the learned Additional Sessions Judge appears to be a pure surmise and conjecture that the cartridge recovered was some other one and later on, it was substituted. We shall be considering the evidence relating to the recovery of the empty and the evidence of sending the sealed packets for examination by the Ballistic expert. The most material evidence is the statement of PW 13 Nisar Ahmed. He has categorically stated that he had observed the empty when he reached near the dead-body. He also stated that he did not observe any blood on the emply nor any sand over the empty and the does not remember as to whether any sand was there inside the empty. The empty was seized prior to the preparation of the Panchanama. After seizing the empty, he put it in the match-box and sealed it and the same was delivered to the S.H.O. He signed on the packing and did not obtain any signatures of the witnesses. Thereafter, the sealed packet was deposited in the Malkhana of the police station. PW 10 Maniram was the Head Constable, Police Station, Tibi, who received the sealed packets, which were taken by him in the sealed condition on 23-6-1972 and they were sent to police line, Ganganagar on 23-8-1972 with Shri Amar Singh. There were three sealed packets. Out of three packets, two packets contained empties and one packet contained pistol. The prosecution examined PW 12 Amarsingh, who carried the three packets from the police station to police-line, Ganganagar. PW 10 Maniram clearly stated that the sealed packets remained in the same condition when they were sent with Amarsingh. The prosecution has further examined PW 7 Ramchandra. PW 7 Ramchandra was the Head Constable, Police-line, Ganganagar. He has deposed that Amarsingh brought three sealed packets; two packets containing the cartridges and one containing pistol. He took them in the custody and made entries in the register. These packets were sent to the ballistic expert on 2-10-1972 in the same condition. They were delivered to Jaswantsingh and Mamrajsingh. Jaswantsingh has also been examined as PW 8. He has deposed that he delivered the sealed packets in the office of the ballistic expert on 3-10-1972. These witnesses have not at all been cross-examined and it has not been suggested that the sealed packets have at all been tampered with and no such suggestion has been made to the S.H.O. Bhimsingh (PW 6). PW 6 Bhimsingh had arrested the accused Mani Ram on 29-6-1972 and had recovered a licenced pistol (Art 1) and three cartridges (Arts. 2 to 4) from his possession at the police station, Tibi. PW 11 G.R. Prasad has stated that the seals on the parcel were intact and tallied with the specimen seal affixed on the letter Ex. P/12. On examination, he found that the pistol was in working order and he further found that all the four empties and seven test cartridge cases contained common characteristic points in their firing pin marks, which were visible in different positions of the cartridges under the microscope. He concluded that four cartridges had been fired from the pistol and could not have been fired from any other similar weapon. He also deposed that the pistol was semi-automatic and it does not require to take out the empty cartridges which exits out empty cartridge after firing automatically. The firing will be more in quick succession in comparison to the weapons, which need manual ejectment.
24. These circumstances of the case are very material. The recovery of the empty cartridge was effected on 22-6-1972. Accused Maniram was arrested on 29-6-1972 and a pistol and three empty cartridges were recovered from his possession on that date. For substitution of any empty cartridge, it is essential that S.H.O. Bhimsingh, Nisar Ahmed and Maniram should be in collusion because without such collusion, substitution is not possible. It is significant to note that no suggestions were made to Maniram or Bhimsingh. PW 7 Ramchandra, PW 8 Jaswantsingh and PW 10 Maniram have not been cross-examined. There are no suspicious circumstances available in the evidence on the basis of which the possibility of substitution may arise. Simply on the basis of delay, and witnesses are police personnel such possibility can not be found. If the recovery would have been manipulated, then the recovery of the two. bullets could have also been manipulated. A mere suggestion to Nisar Ahmed for concoction of this evidence is of no consequence. Surjeetkaur's non-observance of the empty rather makes her a more honest and truthful witness, else she would have stated the observance of the empty on the spot. Nisar Ahmed, no doubt, should have shown the site of the empty in the site-plan but that would not affect the recovery when a clear mention thereof has been made in the site-note. It is also stated in the site-note that at point 'A' the dead body was lying in supine condition and the blood was spreading near the dead body. The empty cartridge 1' long 30 Kynoch written was lying near the dead body, which was seized by a separate recovery memo. As regards the delay in the arrest, Bhimsingh S.H.O. was not asked to explain as to why the accused-persons were not arrested early. Coating of sand over the empty or absence thereof is not very much material or relevant. Much would depend upon the nature of the dust storm. The fact that the sand in the air was thick or thin, has not come in the evidence. There may be very thin layer of sand or may not be and the witness Nisar Ahmed on that basis appears to have stated that there was no coating of sand on the empty. The above evidence is convincing and no suspicion can be cast on the basis of the statement of Ganpatram regarding wooden seal and of Sukhram regarding empty made of card board and brass.
25. Mr. S.N. Deedwania, learned counsel for the respondents referred to the decision in Santasingh v. State of Punjab AIR 1956 SC 526. In that case, there was no inordinate delay in sending the sealed parcels of rifle and empty. The accused was arrested on 14-9-1954 and brought to the police station on 21-9-1954 and was not interrogated by the Sub-Inspector till 26-9-1954. The memo of recovery of the empty was not arrested by any independent witness. On these suspicious features of the case, bona fides of investigation were doubted.
26. In Hanuman v. The State 1974 RLW 159, the gun was recovered from Sohansingh on 25-10-1970 in pursuance of the information dated 2-10-70. The recovery memo was witnessed by Phoolchand and Udmiram, who were not produced. The gun was not identified by Anarsingh, who had recovered it from Sohansingh, and so, reliance was not placed on the statement of Anar Singh. In this case, an observation has been made that there were lapse of the part of the Investigating Agency, in as much as, he has failed to despatch the empty cartridge for examination to the Central Forensic Laboratory, Calcutta and the prosecution has also failed to produce all necessary evidence, which was available to it. The motbir witnesses were deliberately with held.
27. Reference has also been made to State of Rajasthan v. Manphool 1975 RLW 322. In that case, the empties and the gun remained lying with Sumersingh in the police station and had been properly sealed. Firstly, he stated that he sent them to ballistic expert. But in the very next sentence said to the S.P. Churu and he does not know when the S.P. Churu sent them to the Ballistic expert. Copy of the letter by the S.P. Churu was not produced. The articles were despatched after four months to the ballastic expert. There was no evidence in that case that all chances of tampering with the empties and the gun were excluded during the period they remained in the custody of the SHO as well as the SP. There was no evidence with whom the seal remained.
28. It may be stated that so far as the present case is concerned the motbir witness was examined and there is evidence to the effect as to on what date and in whose custody the sealed packets remained, and with whom they were sent and in what condition they remained throughout. For about 2 months, no doubt, the sealed packets remained at the police station and they were lying at the police-line, Ganganagar for more than a month. But there are no suspicious features casting any doubt on the report of the ballistic expert in the case.
29. In Vijai Bahadur v. The State of U.P. 1973 CAR (SC) 65, in para 4, it has been observed as under:
In any case, there is no reason why any of the witnesses should leave out the real assailants and falsely implicate an innocent person. One could at least understand one's attempt to implicate his enemies in addition to the real culprit. But that is not the case here. The evidence of the ballistic expert establishes beyond doubt that the cartridge which caused Hazurasingh's death, was fired from the appellant's gun.
In that case, a suggestion was made that the SI had fired a cartridge from the appellant's gun after he had recovered it from the arms dealer. It was observed that there is no reason why a Sub-Inspector should do so.
30. Thus, the ocular testimony of PW 1 Mst. Surjeetkaur and PW 2 Jaskaran and the circumstantial evidence of the recovery of the empty cartridge connected with the pistol, recovered from the possession of Maniram, amply brings home the guilt of murder to the accused Maniram. Even when the circumstantial evidence of the recovery of the empty is excluded from consideration, the conviction can be founded on the testimony of PW 1 Mst. Surjeet Kaur and PW 2 Jaskaran. Despite they being the relative of the deceased, we find their evidence credible. We have scrutinised their testimony with care, caution and circumstanction. Simply because they are relatives of the deceased being the wife and son of the deceased, their testimony cannot be brushed aside. Their testimony finds corroboration from the prompt FIR and also to some extent from the medical evidence relating to undigested food and number of gun-shots. Their testimony has been discarded, in our opinion, on flimsy and unsustainable grounds by the learned Additional Sessions Judge. We, therefore, hold the accused Maniram guilty of the offence Under Section 302 IPC.
31. Offence under Section 27 Arms Act with which Mani Ram was charged is also brought home, in as much as, he was found in possession of the pistol to use it for unlawful purpose. We, therefore, hold the accused Mani ram guilty of the offence under Section 27 Arms Act.
32. Coming to the case of Hariram accused, we find ourselves in agreement with his acquittal recorded by the learned Additional Sessions Judge. The reasons are that the evidence of exhortation is generally weak. There is discrepancy in the statements of P.W. 1 Surjeet Kaur and P.W. 2 Jaskaran. A perusal of the statement of P.W. 1 Mst. Surjeetkaur and P.W. 2 Jaskaran as well as the first information report makes it clear that the evidence it not clear and it appears to be contradictory regarding the words or the language used by Hariram in his alleged exhortation. Besides that the witness Sukhram (P,W. 4) in his supplementary police statement Ex. D/6) has not adhered to the prosecution case and has stated that by mistake, he had named Hariram as one of the culprits. We have not placed any reliance on the evidence of Sukhram (P.W. 4). Although accused Hariram's presence is established but the part played by him is not proved beyond all reasonable doubt. So, his acquittal, therefore, need not be disturbed.
33. In the result, this appeal is partly allowed, the judgment of acquittal of the accused Maniram is set aside and he is convicted of the offence under Section 302 IPC and is sentenced to imprisonment for life. He is also convicted of the offence under Section 27 Arms Act and is sentenced to two years' rigorous imprisonment. Both the sentences shall run concurrently. The accused Maniram shall immediately surrender and the Additional Sessions Judge, Sri Ganganagar is also directed to effect the arrest of the accused Mani ram to serve out the sentence. The acquittal of Hariram accused is maintained
34. The State appeal against the accused Hariram is, therefore, dismissed.