Kalyan Dutta Sharma, C.J.
1. This is a jai lappeal preferred by Jai Ram against the judgment of the learned Sessions Judge, Jodhpur, dated October 3, 1977, by which the appellant was convicted under Section 30 read with Section 34 Sections 307 and 460, IPC and Section 27 of the Arms Act and sentenced to undergo imprisonment for life on the first count for each murder and on the second count to suffer rigorous imprisonment for ten years, on the third to undergo rigorous imprisonment for ten years and on the fourth count to suffer rigorous imprisonment for one year.
2. The incident that led to the prosecution of Jai Ram, appellant, may be, briefly, stated as follows: On the intervening night of 17th and 18th June, 1976, Prabhu Ram was sleeping in the verandah of his house along with his wife. The door of the gate of the verandah was closed but an aporture or a window therein was open and there was a light of a lantern in it. At about mid-night Prabhu Ram's wife Mst. Barju woke-up on hearing some sound produced by entrance of one person into the verandah through the aperture. She sat on the cot & saw in the light of the lantern a person striking a blow on the head of her husband Prabhu Ram with a sword. Soon thereafter she saw one shot being fired from a gun at her husband which had hit him. She identified the person having gun in his hand to be Jai Ram appellant. The other person, who had a sword in his hand, could not be identified by her. Upon seeing her husband being shot at and injured, she raised an outcry but Jai Ram and his companion threatened her with dire consequences if she did not keep quiet. While retiring from there, Jai Ram appellant fired two shots from his gun to kill Barju also. One of the shots hit her right band, as a result of which her hand was fractured. The other shot hit her right ear, as a consequence of which her ear was torn off and the backside thereof was injured. The cause of the incident was prior enmity and litigation between Prabhu Ram and the appellant. While running away from the scene or occurrence, Jai Ram openly declared that he would kill Laxman also and, in fact, he killed the latter. After committing both the murders Jai Ram and his companion came back to the verandah 'Gadal' of Prabhu Ram and picked-up the lantern, poured kerosene oil over the dead-body of Prabhu Ram and set fire to the corpse. Prabhu Ram's sister Mst. Meeran also was sleeping in the court yard at that time.
3. A first information report of this incident was lodged by Mst. Barju, wife of Prabhu Ram with Ranjeet Singh, Station House Officer, Khedapa at village Birsalu on June 18, 1976, where the Station House Officer had reached upon receiving an information about the murders from the Superintendent of Police Jodhpur The Station House Officer, Khedapa, sent the report to the police station, Khedapa for registration of a case under Sections 302, 307 and 326, IPC and Section 25 of the Arms Act and took-up usual investigation into the matter. The Station House Officer rushed to the Dhani of Prabhu Ram, deceased, and on reaching there inspected the site, prepared a site-inspection memo and a site-plan which are Exs P. 31 and P. 32 respectively. Then the Station House Officer inspected the dead body of Prabhu Ram and prepared a Panchnama of it which is Ex P 33. He took bloodstained earth from the Dhani of Prabhu Ram and saw blood-stains on the wall of the house. He took scrappings thereof also in his possession along with the cot and clothes of the deceased vide Ex. p. 34. All these articles were properly sealed in the presence of Motbirs. The Station House Officer then inspected the Dhani of Laxman deceased also and prepared a site-inspection memo and a site-plan which are Exs. P. 35 and P. 36 respectively. He inspected the dead body of Laxman and prepared an inquest report in the presence of Motbirs. He took into his possession Hood-stained turban and Dhoti of the deceased and sealed them properly. The Station House Officer searched the house of Jai Ram appellant also vide memo of search Ex. P. 38 and took licence of the gun into his possessions which was in the name of Jai Ram appellant. He arrested the appellant on June 25, 1976 and at the time of arrest recovered one 12 bore double barren gun together with 0 cartridges kept in the bandolier from the possession of the appellant. After his arrest, the appellant, while in police custody, gave the Station House Officer an information that he had kept one pant and a shirt in his house which he was wearing on his body and which bore stains of blood on them and which he gave to his wife for washing. He further informed the Station House Officer that he had thrown one empty cartridge case outside the Dhani of Laxman and put 5 empty cartridge cases in his hearth which he was prepared to point out to the police. The Station House Officer recorded the above information in a memo Ex. P. 47 and thereafter recovered one pant of military colour and one shirt from the house of the appellant on which stains of blood were visible despite the fact that the clothes were washed. This recovery was made at the instance of the appellant and inconsequence of his information. The wife of the appellant produced 5 empty cartridge cases having 5 brass heads over them before the Station House Officer as a consequence of the information supplied by the appellant. The Station House Officer took those 5 empty cartridge cases into his possession in the presence of Motbirs and sealed them property then and there. The Station House Officer recovered one empty cartridge case at the instance of the appellant and in consequence of his information from the stones which were lying outside the Dhani of Laxman, deceased. Prior to these recoveries the Station House Officer on June 19, 1976, had sent both the dead bodies of Prabhu Ram and Laxman to Mahatma Gandhi Hospital, Jodhpur, for performance of post-mortem examinations. Dr P. Dayal, Medical Jurist, performed post-mortem examination on the dead body of Laxman and noticed the following injuries:
(1) incised wound 19 cm. x 1.5 cm. on the forehead extending from the left temporal region to right fronto parietal region. The left eye had collapsed. The wound was situated just below the left eye-brow and just above the right eye-brow. The frontal bone of both sides had been out. On the left side, the temporal bone had been cut and the right peristal had been cut. The left orbital plate had been cut. The membrances of the brain and the frontal lobe of brain were cut. There was sub-dural haeamatoma in both frontal and both temporal regions;
(2) lacerated wound 2.5 cm. x 2 cm on the right lateral aspect of chest 7 cm. from the mid-line at the level of 9th rib which had been fractured and there was laceration of the right pleurse and the right lung which was collapsed.
There was no tattooing around the wound. A wad was recovered from the lung and a few pellets. The wad and the pellets were preserved and sealed. On the basis of the post-mortem examination, Dr. P. Dayal opined that the cause of death of Laxman was come due to head injury. According to him, both the injuries were anti-mortem in nature and were individually sufficient in the ordinary course of nature to cause his death Injury No. 2 appeared to be a gun shot injury caused by a 12 bore gun. Injury No. 1 could be caused by a blow with a sword.
4. On the same day he conducted an autopuy on the body of Prabhu Ram also and found the following injuries thereupon:
(1) incised would 25 cm. x 2.9 cm. on the face of right side and another aspect just above the eyebrow The right eye had collapsed. There was cut in the frontal bone on both sides extending to the right temporal region, The memberance of the brain had been cut and both frontal lobes and the right temporal lobe had been cut. There was subdural heamatoma in the right tempo-parietal region. The brain matter had started liquifying The tip of the nose had also been cut and it measured 2.6 cm. x 2 cm;
(2) lacerated wound 4 cm. circular on the laft lateral aspect of waist 16 cm. from the mid line. Loops of intestines were probruding through the wound. There was not tattooing around the wound. Pellets were recovered from the left border of the verticular column embedded in the muscle tissue, which showed laceration at the level of second and third lumber vertebrae. The small intestines had been perforated at places. The wad was recovered at the left border of second lumber vertebrae;
(3) post mortem burns with charring of the skin over the whole of back except the scapular region were found. There was postmortem splitting of the skin with protrusion of the muscles and these areas measured 16 cm. x 3 cm. on the lateral aspect of the distal 1/3rd of right leg and 14 cm. x 8 cm with prolapse of gun in the perineum on left side and 17 cm. x 8 cm. on the posterior aspect of right thigh and postro-lateral aspect of right leg 18 cm. x 18 cm. on the posterior aspect of left 8 cm. x 1 cm. on the posterior aspect of left leg, middle one third. The skin had been separated from the right mandible region and the raw surface measured 7 cm. x 6 cm. and on the chest on right side and back of neck 9 cm. x 2 cm. and 7.5 cm. x 5 cm. in the right axillary region.
The pelletes and the wad were preserved and sealed.
About 150 c.c. liquified matter was present in the peritonal cavity. Injury No. 1 appeared to be the result of a blow with a sword and injury No. 2 was caused by a gun-shot from a 12 bore gun. Post-mortem burns were probably the result of the heat generated by burning of certain articles under the dead body, because ail these burns were situated on the posterior aspect. In the opinion of the Doctor the cause of death of Prabhu Ram was come due to head injury. The duration of the injuries found on the dead bodies of Laxman and Prabhu Ram was about 1 or 2 days prior to the post-mortem examinations.
5. Dr. P. Dayal examined Smt. Barju wife of Prabhu Ram also as she was sent by the Station House Officer, Khedapa, for examination of her injuries. The Doctor, upon examination of her body, found the following injuries:
(1) lacerated wound 27 cm. x 8 cm. on the right forearm and palm of right hand. The muscles had been lacerated and the ulna was fractured in the distal one third. The fracture was commuted in nature;
(2) lacerated wound 5 cm. x 3.5 cm. and bone deep in the right mastoid region. The right ear had been lacerated and a piece of it had been detached from the middle of pinna. There were multiple lacerated wounds about 0.2 cm. x 0.2 cm. on the neck on right lateral aspect.
Injury No. 1 was grievous in the opinion of the Doctor, because it was a fracture Injury No.2 also was grievous because of the detachment of the piece of right ear. This injury caused permanent disfiguration of the face of Mst. Barju. Both the grievous injuries were X-rayed and, upon X-ray examination, metallic foreign bodies resembling pellets were seen in the right forears and hand neck and face on right side. The injuries, however were rot dangerous to life. The Doctor was called upon to produce the sealed foils of wads and pellets which he had recovered from the dead-bodies. In the sealed foil of Laxman there were 11 pellets & pieces of wads which were recovered from his dead body. In the sealed foil of Prabhu Ram there were 24 pellets and one wad which were recovered from his dead body. The Doctor sent the post-mortem reports and the injury report of Mst. Barju to the Station House Officer. The Station House Officer sent the live cartridges as well as empty cartridge cases to the ballistic expert for obtaining his opinion. He sent the clothes of the deceased to the Chemical Examiner for analysis and recorded the evidence of witnesses. On completion of investigation, the Station House Officer filed a charge sheet against Jai Ram appellant in the court of the Munsiff- Magistrate, Jodhpur District, Jodhpur, for offences under Sections 302, 307, 326, 460 read with Section 34 IPC and Section 25 of the Arms Act. The learned Magistrate, upon finding a prima-facie case exclusively triable by the court of Session, committed Jai Ram appellant to the court of the Sessions Judge, Jodhpur, for offences mentioned above. The learned Sessions Judge tried the appellant and found him guilty of the offences under Section 302 read with Section 34, Sections 307 and 460, IPC and Section 27 of the Arms Act. Consequently, he convicted and sentenced the appellant for the said offences in the manner stated above.
6. We have carefully perused the record and heard Mr. O.C. Chatterji, learned Counsel for the appellant and Mr. M.C. Bhati, Public Prosecutor, for the State at length.
7. The first contention put forward brfors us by Mr. O.C. Chatterji, learned Counsel for the appellant, is that the trial Judge committed of error in holding, upon evidence adduced in the case, that the appellant had fired a shot from his gun at Prabhu Ram, deceased, which had hit latter on the left lateral aspect of his waist and after a short-while again fired two shots from the same gun at Mst. Barju wife of the deceased causing gun shot injuries to her right hand and right ear. Likewise, according to Mr. O.C. Chatterji, the trial Judge also went wrong in holding the appellant responsible for causing fatal gunshot injury to the right lateral aspect of chest of Laxman deceased. The above findings of the trial Judge are challenged by Mr. O.C. Chatterji on the ground that Jai Ram appellant was physically handicapped in using 'he alleged fire-arm at the time of occurrence as his left hand was totally cut from the elbow onwards and the fingers of his right hand were incapable of being in a straight condition Mr. O.C. Chatterji further urged that there are good grounds to presume that the so called eye-witnesses implicated the appellant in these two murders out of previous enmity and personal grudge.
8. The Public Prosecutor, on the other hand, argued that inspite of the fact that the appellant's left hand was cut from the elbow joint and the fingers of his right hand were slightly curved and incapable of being straight, there is reliable evidence on the record that he held the gun and fired shots from it at the two deceased persons and Mst. Barju at the time and place alleged by the prosecution. It was further urged by him that at the lime of his arrest the appellant was having the gun in his possession and that the gun was hanging on his shoulders with a bandolier of cartridges tied to his neck and a licence of that gun in his name was recovered by the Investigating Officer from his house. The Public Prosecutor contends that all these factors coupled with the trust-worthy evidence of several eye-witnesses to the actual occurrence fully establish that the appellant was capable of handing the fire arm and firing shots from it and, in fact, if the evidence of the eyewitnesses is taken to be true, several shots were fired by no other person but the appellant at the two deceased and Mst. Barju.
9. We have considered the rival contentions mentioned above. The appellant in his statement taken down under Section 13, Cr. PC, no doubt, has set up a plea that the fingers of his right hand were rendered incapable of movement and his left hand was cut by Prabhu Ram, deceased, Mula Ram and Rugha Ram against whom a case is pending. The appellant further pleaded that he could not fire a shot from the gun. The trial Judge considered the above mentioned plea of the appellant in 1 he light of the evidence adduced in the case and came to a conclusion that the appellant could fire a shot from his gun despite his left hand being cut from the elbow joint onwards and fingers of his right hand being in a curved posture and incapable of becoming straight. The question, therefore, that arises for our determination is whether the conclusion arrived at by the Sessions Judge in this respect is erroneous and does not carry conviction. At the outset, we may observe that there is reliable evidence of Ranjeet Singh Investigating Officer, PW 19, in this case from which it is established beyond reasonable doubt that the appellant at the time of his arrest was having a 12 bore double barrel gun hanging on his shoulder and a bandolier containing 10 cartridges tied to his neck. The appellant was arrested vide memo of arrest Ex. P. 43 which memo is proved by the evidence of Ranjeet Singh. If the appellant had been physically unfit to handle or use the gun and to fire a shot from it on account of his left hand being cut from the elbow joint and the fingers of his right hand being curved and incapable of becoming straight, he would not have kept the gun and the bandolier containing live cartridges in his possession on June 22, 1976, i.e. 4 or 5 days after the occurrence. Another circumstance which may be taken into consideration in determining the aforesaid question is that the licence of this gun was recovered from the house of the appellant upon search by Ranjeet Singh, Station House Officer. The licence of the gun is marked Ex. P. 39 on the record. It was in the name of Jai Ram appellant for possessing the gun which was recovered from his person at the time of his arrest and renewal made upto December 31, 1978, as is evident from the memo of recovery of the licence Ex. P. 38. If the appellant was physically disabled to handle the 12 bore double-barrel gun and to fire a shot from it, he would not have got the licence of the gun renewed in his name upto December 31, 1978 and would have surrendered the gun soon after his hand was cut from elbow joint and his finger of right hind became incapable of becoming in a straight condition. Besides there are testimonies of eye-witnesses who had either seen the appellant firing shots from his gun at the deceased or had seen him standing with the gun in his hand and nearby the deceased persons, who were lying in injured condition after receiving gun-shot injuries on their persons.
10. Mst. Barju, PW 7, and Mst. Meera PW 8 professed to have eye-witnessed the actual occurrence in which Prabhu Ram received fatal injuries on his person. Barju wife of Prabhu Ram, was sleeping in the verandah, which is called 'Gadal' in vernacular, along with her husband Prabhu Ram, deceased. At about midnight she claimed to have seen Jai Ram appellant coining into the 'Gadal' through a window having a gun in his hand. She further professed to have seen Jai Ram tiring shot from a gun at her husband and, according to her, the shot had hit her husband in the stomach She knew Jai Ram well and there was no likelihood of the error or mistake being committed by her in identification, because she could identify the appellant from close quarters. She further stated in her deposition at the trial that Jai Ram filed two shots also from his gun at her and the first shot hit her right hand and the second shot injured her right ear Likewise, Mst. Meera PW 8, who is the sister of Prabhu Ram, deceased, and who was sleeping in the courtyard of the house, heard the sound of a gun fire and the cries of weeping of Mst. Barju. On hearing the sound of the gun lire, she woke-up and saw Jai Ram appellant having a gun in his hand. Although she did not see Jai Ram firing shots from his gun at Prabhu Ram and Mst. Barju, yet she claimed to have seen Jai Ram coming out of the 'Gadal' with a gun in his hand soon after the incident. She further saw that Jai Ram appellant went away towards the house of Laxman along with his associates. Apart from this incident, Barju further claimed to have seen the appellant coming back to her 'Gadal' along with his companions after half an hour and disappearing from there after the dead body of her husband Prabhu Ram was put to fire.
11. There is further evidence from the side of the prosecution that Jai Ram appellant was seen by Ramjeewani PW 1 standing near the cot on which the dead body of Laxman was lying having the gun in his hand. Ramjeewani PW 1 began to weep at the sight of her husband lying injured on the cot and, while weeping, she asked Jai Ram appellant as to why he had injured him and what wrong had been done to the appellant by her husband. Thereupon, Jai Ram replied and spoke the following words:
Widow see whether your or husband is dead or alive.
Thereupon Mst. Ramjeewani saw her husband and found that he was already dead. Jai Ram appellant further told Ram Jeewani that he had taken vengeance on his enemy and that he would not spare any one. These words he repeated before the mother of Prabhu Ram, deceased, also who had come there on heating the cries of Ramjeewani. Saying this, the appellant went away towards his 'Dhani'. Mst. Barju, PW 18, mother of Laxman, deceased, corroborated the version given out by Mst. Ramjeewani to some extent that she had seen Jai Ram standing near the dead body of her son having a gun in his hind a d that Jai Ram upon being questioned why he had killed Laxman, replied that he had taken vengeance upon his enemy and that he would not spare anyone. Bhanwara Ram son of Laxman' deceased, also professed to have seen Jai Ram appellant going out of their entrance at a distance of 10-15 Paundas having a gun in his hand. In this manner, there is overwhelming evidence from the side of the prosecution that immediately after the commission of the two murders of Prabhu Ram & Laxman the appellant was seen near the deceased having a gun in his hand and one of the eye-witnesses, namely, Barju was also fired at from the gun as also her husband Prabhu Ram, and from the evidence of these witnesses it is fully established that Jai Ram appellant, despite his left hand being cut from the elbow joint and his fingers being incapable of being i a straight condition possessed and used the gun causing fatal gun shot injuries to the bodies of the deceased persons.
12. Over and above all, the prosecution has led cogent and reliable evidence to show that a 12 bore double barrel gun and a bandolier containing 10 live cartridges were recovered from the person of the appellant at the time of his arrest and that heads of 5 empty cartridge cases made of brass were recovered from his house at his instance and in consequence of his information, which he furnished to Ranjeet Singh, Station House Officer, Khedapa, PW 19, on June 25, 1976 while being in police custody. In consequence of his further information contained in memo Ex. P. 47 Ranjeet Singh recovered one empty cartridge case from the heap of stones lying outside the 'Dhani' of Laxman, deceased vide memo of recovery Ex. P. 42. The gun live cartridges and the heads of empty cartridge cases and the empty cartridge cases recovered from the heap of stones lying outside the house of the deceased were properly sealed and, later on, sent to the Forensic Science Laboratory by Shri Ranjeet Singh, Investigating Officer. The Director Forensic Science 'Laboratory', Jaipur, examined the aforesaid articles and reported as follows:
(1) The chemical examination indicates that 12 bore DBBL gun (marked Ex W/1) contained in packet 'A' has been fired.
(2) Five metallic heads of 12 bore cartridge cases (marked C/1 to 0/5) contained in packet 'B' could have been fired from the right barrel of the DBBW gun under reference.
(3) One 12 bore cartridge case (marked C/6) contained in pocket 'C' has been fired from the left barrel of the DBBL gun under reference.
Hence, from the report of the Director, Forensic Science Laboratory, Jaipur, it is obvious that one 12 bore cartridge case, which was recovered at the instance of the appellant and in consequence of his information recorded under Section 27 of the Evidence Act from the heap of stones lying outside the 'Dhani' of Laxman had been fired from the left barrel of the DBBL gun which was recovered from the person of the appellant at the time of his arrest. Likewise, the report clearly reveals that the DBBL gun recovered from the possession of the appellant had been fired and 5 metallic heads of the 12 bore cartridge cases could have been fired from the right barrel of that gun. The appellant in his statement recorded under Section 313, Cr. P.C. merely denied the recovery of the gun and bandolier containing 10 live cartridges from his possession at the time of his arrest. He set up an unconvincing plea that these articles were not with him at the time of his arrest and that his gun had been stolen two days prior to his arrest, but he claimed that the gun and the bandolier belonged to him. Likewise, he denied the recovery of 5 metallic heads of empty cartridges from his house in his presence and the recovery of 12 bore empty cartridge cases from the stones lying outside the 'Dhani' of Laxman, deceased, at his instance and in consequence of his information recorder under Section 7 of the Evidence Act. We may observe here that mere denial of the recovery of these articles on the part of the appellant is not sufficient 10 rebut the cogent, reliable and unimpeachable evidence led by the prosecution in this, behalf. Consequently, after taking into consideration all these factors together with the evidence of the eyewitnesses relating to the two murders, we have no he itation in holding that Jai Ram appellant could handle the gun and filed shots from it and, in fact, he did fire shots from the said gun at the two deceased and Mst. Barju.
13. Mr. O.C. Chatterji, learned Counsel for the appellant, further contended that there is considerable doubt about the presence of Jai Ram appellant at the places of both the incidents, because there is no evidence from the side of the prosecution that the gun was reloaded by the appellant after the first shot was fired from it by him at Prabhu Ram, deceased in support of his above contention, Mr. O.C. Chatterji relied upon a recent authority of the Supreme Court Hirchand Singh v. State of Punjab 1981 S.C.C (Criminal) 209. We have carefully considered the above contention and perused the authority cited before us. It is no doubt true that the prosecution has led no evidence to show that the gun was reloaded by the appellant after firing the first shot from it at Prabhu Ram, deceased, but lack of evidence on this point is not fatal to the prosecution case. The reason is that Prabhu Ram, deceased, was shot at once only by the appellant. Dr. P. Dayal, who performed post-mortem examination over the dead body of Prabhu Ram, definitely opined that injury No. 2 was the result of a gun shot from a 12 bore gun. As there was no other gun shot wound injury on the body of Prabhu Ram, deceased and as it is proved by the evidence of Mst Barju, it was the first shot fired by the appellant from his gun which had hit the deceased on his stomach, no necessity of reloading the gun could arise in such a case. Likewise, there was one gun shot injury only on the body of Laxman deceased. Dr. P. Dayal definitely opined that injury No. 2 found on the body of Laxman deceased appeared to be a gun shot wound, because a wad & a few pellets were recovered from it. He further opined that the injury could be caused by a 12 bore gun. This single shot appears to have been fired by the appellant from the left barrel of his gun because the Director, Forensic Science Laboratory observed in his report that one 12 bore cartridge case had be n fired from the left barrel of the gun in question. It will not be out of place to mention that this one 12 bore cartridge case, which was sent to the Director Forensic Science Laboratory for examination along with the gun, was recovered from the place where stones were lying scattered outside the 'Dhani' of Laxman at the instance of the appellant and in consequence of his information recorded under Section 27 of the Evidence Act. Hence, it may be safely held that the appellant fired one shot only at Laxman deceased from the left barrel of his gun, the cartridge case of which was found lying outside the 'Dhani' of the said deceased. Hence, no question of reloading the gun after firing this shot could arise, because thereafter no shot was fired at Laxman, deceased. The necessity of reloading the gun could arise after the appellant had fired the first shot at Prabhu Ram, deceased, because, according to Mst. Barju two shots were fired at her by the appellant from the same gun which had hit her right hand and right ear. Here we may observe that Mst. Barju is the sole eye-witness, who had seen the appellant firing the first shot at her husband Prabhu Ram and thereafter two shots at her. After seeing that her husband had been hit, she began to weep and cry and naturally fell down whether her husband was alive or dead. It is highly probable that in such a perturbed state of mind she might not have noticed that the appellant had reloaded his gun in the mean time. It may also be observed that after killing Prabhu Ram, deceased the appellant went away towards the 'Dhani' of Laxman and reached there after some time. There was sufficient time for him to reload the gun in the way. Hence, in the peculiar circumstances of this case, we are reluctant to hold that the basis of want of evidence of reloading of the gun that the shots were fired by some other person than the appellant.
14. The other contention put forward by Mr. O.C. Chatterji before us is that the charge against Jai Ram was under Section 302 read with Section 34, IPC for having shared common intention of one Rugha Bhil to commit the murders of Prabhu Ram and Laxman Ram, but Rugha Bhil has rot been tried with the appellant for the aforesaid offence and so conviction of the appellant with the aid of Section 34, IPC is bad. The above contention has no force, because Rugha Bhil could not be arrested by the police in the course of investigation. Hence, a challan was put up against him in the court of the Munsif Magistrate, Jodhpur District Jodhpur. with a note that Rugha Ram Bhil was absconding after the commission of the offence and that depositions of witnesses produced on behalf of the prosecution in the absence of Rugha Ram may be recorded under Section 299, Cr PC. The learner) Munsif Magistrate, Jodhpur District, Jodhpur also committed Rugha Ram absconder along with Jai Ram to the court of the Sessions Judge Jodhpur, after having satisfied himself by recording the statement of Ranjeet Singh, Investigating Officer, that in fact Rugha Ram was absconding and evading the trial. In these circumstances, it cannot be held that the conviction of Jai Ram with the aid of Section 34, IPC is bad because Rugha Ram was not tried with him for the murder of Prabhu Ram & Laxman Ram Apart from this, the actual doer of the act constituting the offence is always liable to be convicted of the crime if the offence is proved against him by cogent, reliable and positive legal evidence. In the infant case there is trurst-worthy evidence on the record that Jai Ram caused gun shot injuries to both the deceased which were sufficient in the ordinary course of nature to cause their death.
15. Mr. O.C. Chatterji, learned Counsel for the appellant, further argued that the evidence of the eye-witnesses in question is highly interested & it should not be relied upon without independent corroboration. According to his submission, the evidence of the eye-witnesses is not wholly reliable, because they falsely roped in innocent persons in the commission of the crimes and deliberately attempted to suppress or depart from the truth. He further urged that the falsehood in their evidence is so glaring as utterly to destroy the confidence in them. In support of his above contention, he took us through the evidence of Mst. Ramjeewani, PW I, Bhanwara Ram, PW 2, Mst. Barju, PW 7, Mst. Meeran PW 8 and Mst. Harku, PW 18 and further urged that these witnesses are unreliable by reason of enmity telling an exaggerated story, material inconsistencies in their evidence and want of corroboration in material particulars.
16. We have carefully considered the above contention. It may be observed at that outset that Mst. Ramjeeweeni, PW 1, clearly stated in her deposition that upon hearing sound of a gun fire she woke-up from sleep and came out of her courtyard and saw her husband Laxman Ram lying on a cot & Jairam appellant standing by him having with him a gun along with on Bhil who was armed with a naked sword. She knew Jai Ram prior to this occurrence, because Jai Ram was her husband's younger brother and used to live near her house. She further claimed to have noticed one gun shot wound on the back of her husband and one another wound by sword on his head. She began to weep and while weeping asked Jai Ram why he had killed her husband. Jai Ram replied 'widow see whether your husband is dead or alive.' Thereupon, she touched the body of her husband and found that he had died. Jai Ram further told her that he had taken vengeance upon her husband and that he would not spare any one. Bhanwara Ram P W 2, claimed to have seen Jai Ram going at a distance of 10-15 Paundas from the place of occurrence having a gun in his hand. He could not, however, identify the two persons accompanying Jai Ram. Bhanwara Ram, PW 2, is the son of Laxman Ram, deceased. He saw his mother weeping and crying immediately after the occurrence and further noticed that his father was lying injured on a cot having a gun shot wound on his back and a wound by a sharp edged weapon on his head. Third witness is Mst. Harku, who also professed to have seen Jai Ram and Rugha Bhil by the side of the cot of Laxman Ram, deceased Her evidence is that Jai Ram had a gun with him at that time while Rugha was armed a naked sword. She corroborated the testimony of Ramjeewani regarding all that was uttered to the latter by Jai Ram appellant. These witnesses have been cross-examined in the trial court by the learned Counsel for the appellant but nothing could be elicited from their cross-examination which may tend to destroy the value of their evidence so far as it related to the complicity of Jai Ram in the crime of murder of Laxman Ram. The two eye-witnesses namely. Mst. Ramjeewani and Mst. Harku have implicated Jai Ram appellant and Rugha Bhil in the commission of the crimes of murders and so it cannot be said that their evidence is inconsistent and they have falsely implicated innocent persons. The trial Judge has carefully scanned their evidence and has placed reliance upon it after close scrutiny and we find no substantial ground to take a different view and disbelieve the versions given out by them.
17. As already stated, the prosecution has examined Mst. Barju, PW 7 and Mst. Meeran, PW 8, eye-witnesses to prove, the murder of Prabhu Ram by Jai Ram appellant. In her first information report Mst. Barju implicated Jai Ram appellant and one another person in the commission of the crime by stating that that Jai Ram had a gun in his hand and the other person had a sword. She further stated that the other person accompanying Jai Ram struck a blow on the head of her husband Prabhu Ram with the sword and thereafter a shot was fired from the gun which had hit her husband. Immediately after the shot was fired, she saw Jai Ram having a gun in his hand. She raised a hue and cry, but the assailant asked her to keep quiet and threatened to kill all. Thereafter, Jai Ram fired two shots from his gun at Mst. Barju, which had hit her right hand and right ear causing grievous hurts to both the parts of her body. In her subsequent statement at the trial Mst. Barju no doubt implicated five persons including the appellant in the commission of the murder of her husband. Her statement at the trial was that at about mid-night she heard a rattling sound She woke-up & saw Tulcha Ram and Jai Ram appellant entering her 'Gadal' i.e. verandah through a window. Tulcha Ram had a naked sword while Jai Ram was armed with a gun. She further claimed to have seen three persons standing outside the window. One of them was Umed Ram, another was Ratan Singh and the third she could not identify. According to her testimony in the trial court, Tulcha Ram struck a blow on the head of her husband with a sword. Thereupon, she cried 'HAY RAM MAR DIYA RE' Jai Ram asked her to keep quiet & further threatened to kill all. Then Jai Ram fired a shot from his gun at her husband which had hit him on his stomach In a result of the gun slot, her husband died. Umeda Ram thereupon instigated Jai Ram appellant to kill Mst. Barju also, because if she survived she would depose against them. Then Jai Ram fired two shots from his gun at her which had hit her right hand and right ear causing grievous injuries, Mst. Meeran PW 8 also implicated Umeda Ram and Ratan Singh along with the appellant in the commission of the crime. The evidence of Mst. Meeran in the trial court was that when she woke up upon hearing the cries of weeping of Mst. Barju, she saw three persons standing outside the window of the 'Gadal' one of them was Umeda Ram having a naked sword, the other was Ratan Singh having a torch. The third man she could not recognise. According to her statement in the trial court Umeda Ram told that Barju should be killed, because, in case, she survived, she would depose against them. Thereupon, two shots were fired from a gun which had hit Barju on her right hand & right ear. She claimed to have seen Jairam having a gun in his hand and going out of the 'Gadal'. In this manner, Mst. Barju and Mst. Meeran have improved upon their initial versions about the occurrence and the number of assailants in their subsequent statements at the trial as they have tried to implicate Umed Ram and Ratan Singh in the commission of the murder of Prabhu Ram. Both these witnesses were confronted with and contradicted by their previous statements before the police and when confronted they could not afford any reasonable explanation for the inconsistencies appearing in their two statements regarding the implication of Umeda Ram and Ratan Singh. The trial court also has not believed their evidence so far as it relates to the presence of Umeda Ram and Ratan Singh and the role alleged to have been played by them in the commission of the crime. These two persons are closely related to Jai Ram. They were even not challaned by the police. Merely because these two persons, namely, Umeda Ram and Ratan Singh were subsequently implicated in the commission of the crime by Mst. Barju and Mst. Meeran in their statements at the trial it does not necessarily follow that their testimonies should be outright rejected. As observed by their Lordships of the Supreme Court in Nisar Ali v. State of U.P : 1957CriLJ550 , the maxim 'falsus in uno falsus in omnibus' has not been generally accepted in India and has not occupied the status of general rule of law. It is merely a rule of caution and requires the court to scrutinise and weigh the evidence carefully & separate grain from the chaff. In this this connection, reference may be made to an authority of the Supreme Court Ugar Ahir v. State of Bihar : AIR1965SC277 wherein Hon'ble Subba Rao J., as he then was, observed as follows:
The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) h neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms or the felicitous metapoor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.
In the instant case, the evidence of Mst. Barju and Mst. Meeran contains a grain of truth so far as it relates to the identity of Jai Ram appellant and the role played by him in the commision of the murder of Prabhu Ram. Their evidence cannot be thrown away merely because they have subsequently alleged that two more persons, namely, Umed Ram and Ratan, Singh also had been participants in the crime. Mst. Barju clearly stated that it was Jai Ram appellant who first fired a shot from his gun at her husband and thereby caused a gun-shot wound on his back and after a short while fired two shots at her from the same gun which had hit her right hand and ear causing grievous injuries to both these parts. Likewise Mr. Meeran claimed to have seen Jai Ram appellant going out of the 'Gadal' having a gun in his hand. Consequently, we are unable to hold that Jai Ram appellant' was falsely roped in by Mst. Barju and Mst. Meeran in this case.
18. Mr. to O. C. Chatterji further contained that in the absence of adequate source of light the eye-witnesses could not recognise or identify the assailants, especially when the offence was committed during the hours of darkness. The above contention also has no substance, because Mst, Ramjeewani clearly stated that moon had arisen in the sky at the time of occurrence. In her cross-examination she further stated that bad there been no light of torch, even then she could recognise the faces of assaillants in the light of moon. Similar is the statement of Bhanwara Ram, who claimed to have seen Jai Ram and his two associates going at a distance of 10 or 15 Paundas from him in the moon light. Mst. Harku also stated in her deposition in the trial court that she saw the occurrence and Jai Ram appellant in the moon light and in the light of the torch. Hence, in the face of this reliable evidence it can be safely held that Jai Ram appellant could easily be identified by the aforesaid eye witnesses in the prevailing moon light. Similarly Mst. Barju professed to have identified Jai Ram appellant in the light of the lantern which was placed in the verandah i.e. 'Gadal'. Mst. Meeran P.W. 8 also stated in her deposition at the trial that the moon had arisen in the sky and there was light or lantern in the 'Gadal'. Apart from this both these witnesses saw Jai Ram appellant and his companion coming back to their house and putting fire to the dead body of Prabhu Ram after pouring kerosene oil on it. Hence, we are unable to hold that there was no source of light and Jai Ram appellant could not be seen while committing murder of Prabhu Ram on account of darkness.
19. The result of the above discussion is that Jai Ram appellant, in our opinion, was rightly convicted by the trial Judge of the offences punishable under Sections 30(sic) read with Section 34, 307, 460, I.P.C. and Section 27 of the Arms Act and we see no substantial grounds for interference as to his guilt. As regards sentences, awarded to the appellant by the trial Judge for the aforesaid offences, it may be observed that they are not severe in the circumstances of the case, and, there are no mitigating circumstances to justify reduction thereof. The appeal filed by Jai Ram appellant fails and is hereby dismissed. The appellant is in jail. He shall serve out the sentences awarded to him by the trial court. However, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and his liability to undergo imprisonment on such conviction shall be restricted to the remainder, if any, or the term of imprisonment imposed on him, as provided by Section 428 of the Criminal Procedure Code.