Judgment:
Ashok Kumar Mathur, J.
1. This appeal is directed against the judgment of the learned Additional Sessions Judge, Nohar dated 29-8-1981 where by the learned Additional Sessions has convicted accused Begraj under Section 302 1PC. He also convicted accused Sukharam under Section 302 read with Section 34 I.P.C. and sentenced them to life imprisonment and a fine of Rs. 1000/- each and in default of payment of fine to undergo six moth's simple imprisonment. Both the accused have also been convicted under Section 447 I.P.C. and Section 27 of the Arms Act and sentenced to one month's simple imprisonment and Rs. 100/- each as fine and in default of payment of fine to undergo 15 days simple imprisonment under Section 447 I.P.C. and three months simple imprisonment under Section 27 of the Arms Act.
2. Rest of the three accused persons, namely, Rameshwar, Ram Chandra and Hem Raj have been acquitted by the learned Additional Sessions Judge, Nohar.
3. The facts giving rise to this case are that Jagdish was admitted in the Bhadra Government Hospital on 7-4-1978 with gun shot injuries. The Doctor on duty, Dr. Sahi Ram informed the Police about this injured. On the information received by the S.H.O. Om Prakash from the Hospital he rushed to the Hospital and got a dying declaration of the injured recorded by the Tehsildar. Thereafter on that basis he registered a case under Sections 307, 447, 147, 148 and 149 I.P.C. Thereafter, when Jagdish, who gave a dying declaration died a charge under Section 302 I.P.C. was added. The First Information Report was lodged against all the five accused persons, namely, Begraj, Sukhram, Ramchandra, Hemraj and Rameshwar. The investigation was taken up by the S.H.O. Om Prakash, accused were arrested and recoveries of weapons from the accused persons were made. Empties were also collected from the scene of occurrence After close of the investigation all the accused were charge-sheeted and sent for trial, under the aforesaid sections After completing the trial learned Additional Sessions Judge, Nohar acquitted 3 accused persons and convicted the accused Begraj and Sukhram as aforesaid Aggrieved against the judgment of connection the accused appellants have preferred the present appeal before this Court.
4. The incident as disclosed in the First Information Report Ex P 1 is that on 7-4-1978 in the morning at about 8 a.m. Bhadar along with his son Jagdish Om Hardeva, Inderraj and two more ladies have gone to the field of Bhadar situated in village Chiriva Gandhi in the district of Ganganagar. While they were harvesting the crop, Begraj alongwith his son Sukhram armed with pistols and Rameshwar, Ramchandra and Hemraj armed with lathis came at the field and shouted that they have harvested the crop & they would not be allowed to escape then. Thereafter, Begraj fired a shot which hit Jagdish in the stomach and Sukhram also fired a shot which injured Mahavir, Hardeva and Bhadar. The post-mortem of deceased was conducted and the cause of death was gun shot injuries. Three other injured were also medically examined and they have also found to have received injuries from pellets. The dying declaration of the deceased was recorded by the Tehsildar soon thereafter. The First Information Report which was filed on 7-4-1978 reached the Magistrate on the same day at 4 p.m.
5. Mr. Purohit, learned Counsel for the appellants has challenged the testimony of the eye-witnesses, namely, PW 1 Mahavir, PW 2 Hardeva and PW 4 Bhadar. He has also challenged the dying declaration recorded by the Tehsildar. He has also disputed the recoveries and the report of the ballistic expert.
6. I shall first take up the dying declaration. According to the dying declaration, which is on record as Ex. P 7 learned Counsel has submitted that this dying declaration is wholly importable. Learned Counsel submits that the incident took place at 8 a.m. and the dying declaration was recorded at 11.30 a m. but it has not been pointed out that whether the deceased was in fit condition to record the dying declaration. It has also not been proved that the dying declaration was recorded by the Tehsildar who has singed the same. All the criticism levelled by the learned Counsel is not tenable The incident is said to have taken place at 8 am and soon thereafter the injured was taken to Hospital. Dr. PW 14 Sahiram immediately informed the S.H.O., Bhadra that his condition is serious and a Magistrate should be summoned for recording the dying declaration. On that basis, the SHO Police Station Bhadra Om Prakash PW 6 sent the requisition to the Tehsildar which bears an endorsement of the Doctor that injured Jagdish is fit to give the dying declaration. This is noted on the requisition Ex P 4 sent by the SHO to the Tehsildar for recording the dying declaration. Thus, this contention of the learned Counsel is not tenable. Likewise, the contention of the learned Counsel that the theory of dying declaration is wholly improbable. After going through the evidence of the Tehsildar PW 9 Mahavir Singh, PW 14 Dr. Sahiram and the Investigating Officer we are convinced that the dying declaration has been recorded in most natural manner and there is no reason to doubt the sanctity of this dying declaration. Learned Counsel has also submitted that it has not been proved that whether this dying declaration was recorded by the Tehsildar PW 9 in his own hand-writing and in the same manner as it was deposed by the deceased Jagdish. No such question has been put to PW 9 Mahavir Singh that whether the dying declaration was recorded by him in his own hand-writing or not. When the dying declaration has been recorded and the same bears the signatures of the Tehsildar there is no reason to doubt that the same has not been reduced into writing by PW 9 Mahavir Singh. Learned Counsel has also pointed out that there is no endorsement of time by the Doctor on Ex. P 7 that as to when the dying declaration was recorded. This criticism of the learned Counsel is without any basis. The requisition for dying declaration was sent by Ex 14 Dr. Sahiram at about 11.15am. and the dying declaration has been recorded at 11.30 a.m. on 7-4-1978 Ex. P 7 and the deceased has died at about 1.40 p.m. Thus, it is apparent that the dying declaration has been recorded on 7-4-1978 at 11.30 a.m. Therefore, the criticism of the learned Counsel is without any basis. Thus we are of the opinion that the dying declaration is truthful and there is no reason to doubt the veracity of the same.
7. Learned Counsel has further submitted that all the eye-witnesses of the incident are relations and they have a strong motive. Therefore, their testimony should not be accepted. It is true that there is a dispute regarding this field as disclosed from the evidence of the prosecution. Bhadar PW 4 went in adoption to Jiyaram and jiyaram had two daughters. Both these daughters were married to the sons of Begraj On account of this, there was a dispute between Begraj and Bhadar. It has been suggested that all the witnesses who have been produced by the prosecution namely, PW 1 Mahavir, PW 2 Hardeva, PW 4 Bhadar and PW 5 Om Prakash are interested witnesses as they are sons and brother of Bhadar. Therefore, they are interested to grab this field and, therefore, they are deposing against the accused for this motive. Similarly, it is also submitted that all the eye-witnesses are interested witnesses. Therefore, they are deliberately implicating both the accused persons.
8. We have gone through the testimony of the eye-witnesses PW 1 Mahavir, PW 2 Hardeva and PW 4 Bhadar. All these three witnesses have a reason to be present on the scene of occurrence. It has been deposed by PW 1 Mahavir that at the relevant time the field was in their possession as they have sown the crop and they were harvesting. So far as the possession of the field is concerned, the same cannot be disputed. It may be that there was a dispute regarding this field between Bhadar and Begraj. But the fact remains that at the relevant time the crop of Bhadar was standing and they were harvesting the same. It is just natural that at the time of harvesting all the sons and other family members were assisting their father in the harvesting their crop. Secondly the name of these witnesses find mention in the First Information Report and this is the consistent case of the prosecution that these witnesses were on the scene of the occurrence. Thus, the presence of these eye-witnesses at the scence of occurrence is just natural and it cannot be doubted. Secondly, the injuries received from the pellets by these three eye-witnesses is also very well established. All the three witnesees were medically examined and they have received pellets injuries from gun shot. Thus the consistent testimony of all the witnesses that the shot which was fired by the accused Begraj struck the deceased Jagdish on his stomach and subsequent shot which was fired by accused Sukhram the pellets of which struck these witnesses. Learned Counsel submitted that there is only one shot which was tired and which caused injuries to the deceased and no second shot was fired and some of the stray pellets also injured these witnesses. Therefore, attempt is made to unnecessarily implicate Sukhram. We are not prepared to accept this contention because there is a categorical deposition by the witnesses that the first shot was fired by Begraj which hit the deceased Jagdish and the stray pellets of the subsequent gun shot fired by accused Sukhram struck various parts of the bodies of these witnesses. This is a consistent story of the prosecution right from the beginning and the empties which have been recovered from the scene of the occurrence and which have been duly proved by the Investigating Officer and the report of the ballistic expert further lend support that the injuries received by these witnesses were result of Sukhram's firing.
9. So far as the recovery of guns at the instance of the accused Begraj and Sukhram is concerned the same has not been disputed. The firing of more than one shot has also been proved from the recoveries of wades and empties from the scene of occurrence. PW 11 Investigating Officer has deposed that he has received 5 wades and 2 empties of 12 bore, one more missed cartridge of 12 bore and 2 live cartidges of 12 bore were also recovered These were sent to the ballistic expert and it is proved that they were fired from the two guns which were sent to the ballistic expert. Learned Counsel submits that these recoveries have not been proved by the ballistic expert as he has not come in the witness-box. But the report of the ballistic expert has been supported by the affidavit as the original was lost and there is no reason to disbelieve the affidavit filed in support or the report of the ballistic expert. Thus, in this view of the matter, we are of the opinion that the testimony of these eye-witnesses amply proves the guilt of the accused persons.
10. Learned Counsel has also submitted that in fact the accused Sukhram has been wrongly implicated with the aid of Section 34 as he has not fired any gun shot not has made any overt act. This contention of the learned Counsel is without any merit. This is amply established that all the five accused persons came together and out of them accused Begraj and Sukhram were armed with guns. Both of them used the fire arms as a result of which Begraj's shot hit the deceased Jagdish and the second shot fired by Sukhram injured the three witnesses. From these facts the common intention is no illegality in convicting the accused Sukhram under Section 302 read with Section 34, I.P.C.
11. The conviction of the accused persons Section 447 I.P.C. and under Section 27 of the Arms Act has not been challenged before us.
12. In the result, we do not find any merit in this appeal and the same is dismissed. The conviction and sentence of both of the accused i.e. Begraj is upheld under Section 302 I.P.C. without any fine and that of accused Sukhram under Section 302 read with Section 34 I.P.C. without fine as well as under Section 27 of the Arms Act and under Section 447 IPG of one month without fine.
13. The accused Sukhram is on bail. He is directed to surrender himself before the learned Additional Sessions Judge, Nohar to serve out the unexpired portion of his sentences, failing which the learned Additional Sessions fudge will Take necessary steps to send the accused behind the bars for the aforesaid purpose.