D.L. Mehta, J.
1. Learned Additional Sessions Judge No. 2, Hanumangarh has convicted the accused under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life. Sandur Singh (PW. 2) lodged the first Information Report at Police Station, Hanumangarh Town on 7-7-1977 at 12 P.M.
It was submitted by him that there was a dispute about the land between the parties. It was alleged that Gurdayal Singh, the father of the accused, was murdered, prior to the occurrence and Bachan Singh, the brother of the informant, was prosecuted in the court. It was furtner alleged that case against the Bachan Singh under Section 302 IPC was pending at the relevant time. With this background, it is alleged that Kapoor Singh and Hajoor Singh were at their field and the father of the complainant went to give them a packet of break-fast. He heard the firing at about 9 A.M. and he ran towards his field and found that nearby the field of Jwala Singh a fire was shot towards his father. His father fell down nearby the drain and the second fire was also shot at once. It was further alleged that one man was accompanying Bhagsing. It was further alleged in the FIR that on has raising cries, the second man fired towards him, but missed. He has further suborned that his younger brother Hajoor Singh ran towards the village after the first fire and his elder brother Kapoor Singh ran towards the other side. His father was shifted from the place of occurrence on the road, which is nearby their house. He went to arrange for a jeep. While he was returning he found his brother and mother carrying the injured in the hut. He shifted them in the jeep and went to the hospital. Just after arrival at the hospital, his father Thana Singh expired. I his FIR has been lodged at 12 in the noon just after three hours of the occurrence. An autopsy was conducted by PW 8 Mr. Paras Jain, rte has stated that Thana Singh was brought in the hospital in peripheral circulatory failure and he was gasping within minutes, he collspsed in hospital at 10.40 A.M. He found the following injuries on the person of the deceased-
(1) Abrasion 3/4' x 1/2' on the rt. forearm dorsal surface in middle.
(2) Abrasion 1' x 1' on the rt. upper arm lateral surface in upper half.
(3) Abrasion 1/2' x 1/2' on rt. upper arm in middle on ventral surface.
(4) Wound of entry lacerated wound and margins inverted 3/4' x 1/2' x 3' on rt. forearm dorsal lateral surface in middle. Gun shot was found at the end of the wound directions below upwards.
(5) Wound of exist 3/4' x 1/2' on rt. forearm antero medial surface upper 1/3rd.
(6) Wound of entry 1/2' x 1/4' x 2' on rt. forearm anterior surface upper 1/3rd. Wounds No. 5 and 6 were through and through direction was below upwards.
(7) Light wounds of entry 2' x 1/2' of different depth scattered in arms of 1' x 7' on posterior part of upper half left of left thigh.
(8) Light wounds of exist size 3/8' x 3/8' on antero medial surface of upper half cf it thigh scattered in arms of 8' x 8'. The entry mentioned in wounds No. 7 and 8 were through and through of and wound exist mentioned in and the direction was from back side to front side.
(9) Wound of entry 1/4 x 1/4 on Lt. thigh anterior surface upper 1/3rd and wound of exit of same injury 3/8' x 3/8' on it, thigh a terior surface upper 1/3' x 1' above wound of entry,
(10) A wound of entry 1/4' x 3/s' on fourth inter costal space on it. side of chest in raid cievicular line. Wounds of ex t 3/8' x 3/4' on the 5th inter-costal space on lt. side of chest in mid clavicular line, direction above downwards.
(11) Wound of entry 3/8' x 3/8' on 6th inter costal space It, side 1/2' lateral to midclavicular line. Wound of exit 3/8' x 3/4' on It. iliac faces through and through direction from above to downwards.
(12) Wound of entry 1/4' x 1/4' on left iliac faces and wound of exist 3/4' x 3/4' on anterior surface of left thigh through and through and direction above.
(13) Wound of entry 1/4' x1/5' on 2nd inter costal space left side. Gun shot entered and crossed the heat from above downwards and was found in posterior part of modis etinum
(14) Wound of entry 1/2' x 2' on It side of thigh anterior surface. It was 2' in depth and gun shot was found in It, upper 1/3 of fenur bone (impacted), direction above downwards.
(15) Wound of entry 1/4' x 1/4' on Rt. part of epigastrum and it came out on Rt. supra umblicus region on rt. side 3/8' x 3/6' x 1/2' below the wound of entry, Wound of entry 1/4' below the umbilicus on Rt. side 3/4' x 3/6' and it came out 1-1/4' below umblicus on Rt. side, the size of wound exit was 3/4' x 3/8' direction from above downwards.
He also found that the blood was present in thorasic cavity and the chambers of heart were empty. There was a fracture of left four bone on its upper 1/3rd part. The cause of death was shock caused by severe bleedging from different places, including heart caused by multiple gun shot injuries. Three gun shots were found in the body. They were sealed and sent to police. According to him, all the injuries were sufficient in the ordinary course of nature to cause death. All the injuries were caused within five hours of the time of the death. The post-mortem examination report issued by Or. 'aras Jain is Ex. P/6. The prosecution has examined in all 10 witnesses in support of the case and has produced 23 documents in support of the case. On behalf of the defence, statements of witnesses recorded under Sec 161, Cr. PC, were exhibited and have been marked as Ex. D/1 to Ex D/4. Ex D/5 Tehrir dated 1-10-77 has also been produced by the defence. PW 2 Sindur Singh is the author of the FIR. PW. 4 Hajoor Singh and PW. 5 Kapoor Singh have been produced as eye-witnesses of the occurrence. PW 1 Ridhkaran is a Patwari and he has assisted the police in the preparation of the site memo Ex. P/1. PW. 3 Birbal has turned hostile and does not support the recovery of the gun. PW. 6 Ratan Singh is also the son of the deceased and he has been produced by the prosecution to prove the dying declaration, which is alleged to have been made by the deceased before him. PW. 7 Kasiram has been produced to prove Ex. P/5. He has also participated in the investigation of the case. PW. 9 Surendra Kumar is the SHO, Police Station, Hanumangarh down. He has stated that the FlKExP/2 was recorded in his presence and it bears his signatures. He has further stated that after recording the FIR, he went to the police station and prepared Ex P/7 inquest report. He has further stated that the clothes of the deceased were seized by him vide Ex P/8. He has further deposed that he left for the site and prepared the site memos Ex P/3 and Ex.P/3A. He frund the Kassiya on the spot and seized it vide Ex.P/9. He also stated that be got side memo Ex.P/1 prepared. He has also produced Ex.P/42 a copy of the Khasra FIR and Khasra Girdawari have beep marked as Ex.P/2 by the trial Court. He further stated that he recorded the statements of the witnesses and arrested the accused. After investigatian, he submitted a chargesheet against the present appellant Bbag Singh and Jangir Singh. Jangir Singh was charged under Section 302/349, IPC, and Section 307, IPC, and Sections 27 and 25 of the Arms Act. Jangir Singh has been acquitted by the court below. Present appellant has been convicted by the learned Addl. Sessions Judge. Being aggrieved with the finding of the learned Additional Sessions Judge, the present appellant has preferred the appeal before this Court.
2. Learned Counsel for the appellant does not dispute the fact that the death of deceased Thanasingh was homicidal in nature. Learned Counsel for the appellant also submits that none of the three eye-witnesses were present at the time of the occurrence and appellant Bhag Singh has been implicated falsely for the reason that both the parties were enmical to each other and the brother of the complainant parly Bachan Singh is facing the trial under Section 302, IPC, for the murder of the father of the present appellant. I earned counsel for the appellant has further submitted that all the three eye-witnesses are interested party and their brother is facing the trial under Section 302, IPC, and for this reason, they are implicating the present appellant and they are not independent witnesses. He has further submitted that nearby the place of occurrence there are fields of a number of persons and their presence cannot be ruled out. He further submits that in the month of July, generally the agriculturists are found at their fields in the morning. He has pointed out Ex.P/3 the site memo and has submitted that the incident is alleged to have taken place in Murabba 24 belonging to Jwala Singh. He further submit? that nearby the Murabha No. 24, there is a abadi and the presence of the persons of the locality cannot be ruled out. That on the western side of the the field of Jwala Singh, there is a Murabba No. 23 belonging to the accused party. Adjacent to Murabba No. 23 belonging to the accused party, there is a Murabba No. 32 belonging to the deceased on the southern side. Learned Counsel for the appellant has also pointed out that as per side memo Ex.P/3, the blood was found at point 'F' 'H' and 'C' He has also invited our attention to the point 'W' which is said to be a house of the deceased. Point 'H' in the site memo has been shown as Kotha. Learned Counsel for the appellant submits that the blood was found at points 'F' 'G', 'N' and 'M'. He further pointed out that there is an allegation that the accused Bhag Singh went from Kotha 'H' and, thereafter, he fired a shot. Learned Counsel for the appellant submits that the prosecution has failed to explain as to how the blood was found at points 'F' and 'N' He submits that looking to the site memo that there is every possibility that the incident might have taken place in a different way and the appellant might have been named because of enimocity which was between them and their family. Learned Counsel for the appellant has also invited our attention to the statement of PW 6 Ratan Singh. He has pointed out that Ratan Singh has stated that he asked his father about the incdent and, thereafter, his father told him that Bhag Singh has shot him down He has also invited our attention to the other Roint of the statement of Ratan Singh in which Ratan Singh has stated that after him, Kapoor Singh and Sindur Singh have also asked his father about the incident and he has specifically named the person, who has fired shot towards him. Thus, Mr. Garg, learned Counsel for the appellant, tries to make out a case that, if it was a case in which three sons of the deceased, namely, Sindur Singh (PW 2), Hajoor Singh (PW 4) and Kapoor Singh PW 9) were really the eye witnesses then there was no question of asking the deceased about the name of the assailant. He further points out that only on the basis of the statement of Ratan Singh (PW 6), who is also the son of the deceased and who is also enmical with the appellant, the testimony of the three eye-witnesses should be rejected.
3, Mr. Garg, learned Counsel for the appellant, has further invited our attention to the statement of PW 2 Sindur Singh and has stated that Sindur Singh has given a theory that he beard the gun shot towards his field and, thereafter, he ran and saw that Jwala Singh's father was running towards the drain. He has further invited our attention to the statement of Sindur Singh in which there is a reference that Bhag Singh present appellant fired the second shot and his father fell down. There - is a further statement of Hndur Singh that after his father fell down, accused Bhag Singh fired the third shot. He has also pointed out that witness has stated that he saw the firing from a distance of about one-and-half killas. He has invited our attention to Ex. D/1 and Ex.D/2 and has tried to point out this fact that he saw the incident from a distance of one-and-balf killas. He has also pointed out about the omission that his father was taken on the cot and, thereafter, he was placed in the bus and then shifted in the jeep. He has also invited our attention to the fact that this witness admits that there is a house of Chowkidar nearby the place from where this witness alleged to have seen the incident. Learned Counsel for the appellant has also invited our attention to this part of the statement of the witness that the appellant fired a shot from a distance of three paundas, i.e., about 15 feet and, thereafter, he fired the second shot from a distance of one paurtda, i.e., about, five feet. PW 4 Hajoor Singh is the other eye-witness of the occurrence. This; witness stated that they were taking meals and from a distance of jabott 20 to 25 feet, a fire was shot from the point 'S' as shown in the, site memo, i.e.., from the Kotha of the accused Bhag Singh. This witness has further stated that they stood upon and saw that present appellant Bhag Singh and, one more person decided to run away. He has further stated that the man who was accompanying Bhag Singh also fired a shot, but it missed. This witness has further stated that, thereafter, present appellant shag Singh fired towards his father from a distance of about 5 to 6 feet. This witness has further stated that Kapoor Singh ran towards the south and went to the village. During this period he found that Ratan Sirigh, Jwala Singh, Anar. Singh and Sindur Singh brought his father of their house. He further states that within 10 to 15 minutes his brother Kapoor Singh also ran there. This witness has also states that Dhasjveer has fired a shot towards Kapoor Singh from a place, which is nearby the power house. This witness has stated that his father was not taking the meal with them, but he was preparing the land. This witness has also stated that nearby the power house, there is a quarter of Gram Sewak and a Teacher. He has further stated that the incident has taken place on the eastern side. This witness has further stated that when the fire was shot to his father, accused was infront of his father. This witness has also stated that he has not seen his father running away. However, he stated that his father ran towards the drain of Jwala Singh.
4. We have given a thoughtful consideration to the submissions made by the learned Counsel for the parties. The first information report has been lodged on the very day at 12 in the noon. Distance from the place of occurrence is 14 kms. FIR was forwarded by the investigating agency on the same day and it was received in the court on the very day. Name of the accused-appellant Bhagsingh has been mentioned and specific part has been assigned to him. Thus, the FIR, which has been lodged at the earliest opportunity and received in the court at the earliest, narrates the first version of the occurrence in which it has been specifically mentioned that present appellant Bhagsingh fired shot at the deceased.
5. Apart from that, it is unthinkable that the relatives of the deceased will falsely substitute the assailant. As the name of the present appellant finds place in the FIR, which has been lodged at the earlier and has been received in the court on the same day, it is a very important piece of corroborative evidence As far as the statement of PW 6 Ratan Singh is concerned I do not find it as trust-worthy. Looking to the nature of the injuries sustained by the deceased, it cannot be said that the deceased was capable of making any dying declaration before him Testimony of Ratan Singh cannot be used to discredit the statement of PW 2 Sundra Singh and other eye-witnesses.
6. Ex. P/21 is the report of the State Forensic Science Laboratory. Report of the State Forensic Science Laboratory reveals that the gun under reference has been fired. However, the expert could not give definite opinion about the time of its last firethe expert also could not give definite opinion regarding two cartridges marked as C2 and C1 in order to link them with the gun under reference. Serologist has also submitted the report Ex.P/23. Blood stained soil marked as item No. 32 and Chaddar marked as item No. 35 were found with 'A' group blood. As far as the other items are concerned, Serologist is of the opinion that the blood was human and blood group of the stains on the items could not be determined for the reasons stated in the report. Thus, the recovery of the gun gives a very little corroboration to the prosecution evidence. However, the report of the Serologist that the blood was found on item Nos. 30, M and 32 was human blood, gives a sufficient indication on sufficient corroboration to the fact that the incident has taken place at more than one place and finally the deceased fell down at the place from where the blood smeared soil was taken by the investigating agency for the purpose of investigation. Naturally, the place where the deceased fell down was full of Wool and so the Serologist was able to give the grouping of the blood. As far as the other places are concerned, he has stated that blood was found, but he was not in a position to give the group of the blood. As far as item No. 30 is concerned, it was dis-inte-grated and as such, the grouping cannot be done. As far as item No. 31 is concerned, interfering substance was present and for this reason, the blood grouping could not be done.
7. PW. 2 Sindura Singh has stated specifically that when he heard the firing shot, be went towards the place and saw that his father was running towards the Khala of Jwala Singh. He further states that Bhagsingh present appellant tired the shot and his father fell down. He further states that even thereafter, Bhagsingh fired a further shot. He has stated that he saw the incident from a distance of about a kilo-and-a-half. The contradictions and emissions are of the minor nature and the testimony of this witness cannot be discarded only on the ground that there are omissions and the contradictions. This witness has lodged the FIR at the earliest opportunity and he has given the same version in the FIR. In the first information report, he has also stated that he fired shot, ran towards the place of incident and saw that Bhagsinph present appellant fired a shot towards his father and his father fell down. He has further stated in the FIR that Bhagsingh fired the second shot. Thus, the testimony of this witness also gets the corroboration from the FIR, which he has lodged at the earliest opportunity and which has been received in the court also on the same day. PW 4 Hajoora Singh has stated that present appellant Bhagsingh fired a shot at his father. He has further stated that he ran away towards the house. PW 5 Kapoor Singh has also given to some extent the same version. Learned District Judge has discussed the evidence in detail and we do not find any infirmity in the appreciation of evidence.
8. Accused has not stated anything in his statement recorded under Section 313, Cr. PC, about the incident. He has taken the plea of alibi. Plea of alibi is a very weak type of plea, which cannot be accepted unless sufficient material is placed on record to show that the deceased was not present at the time of incident.
9. For the teasons stated above, we do not find any infirmity in the judgment passed by the learned Additional Sessions Judge No. 2, Hanuman-garb. We dismiss the appeal of the present appellant and maintain the conviction and sentence.