Bilbar Vs. State of Rajasthan - Court Judgment

1. When this appeal came up for hearing before us, the advocates at Jaipur and Jodhpur were on strike. This was an unusual situation. We were faced with three alternatives. First, we could have adjourned the appeal for hearing. The second course open to us was to peruse the record by ourselves and decide the appeal on merits. Third, we could have dismissed the appeal for non-prosecution.

2. Section 386 of the Code of Criminal Procedure, 1973 provides for hearing of appeals. This section reads as follows:

'386. After perusing such record and hearing the appellant or his pleader if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may.

(a) in an appeal from ah order of acquittal, reverse such order and direct that further enquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass a sentence on him according to law;

(b) in an appeal from a conviction;

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) after the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;

(c) in an appeal for enhancement of sentence;

(i) reverse the finding and sentence and acquit or discharge the extent, or the nature and extent, of the sentence, but not so as to try the offence, or

(ii) after the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, after or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or proper:

Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:

Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, then might have been inflicted for that offence by the Court passing the order or sentence under appeal.'

This section corresponds with and is in pari materia with Section 423 of the Code of Criminal Procedure of-1898, (for short 'the old Code'). This Section 423 of the old Code came to be interpreted by the apex Court in Shyamdeo Pandey v. State of Bihar, : 1971CriLJ1177 , wherein their Lorships said (Para 19):

'After the records are before the court and the appeal is set down for hearing; it is essential that the Appellate Court should (a) peruse such record, (b) hear the appellant or his pleader, if he appears, and (c) hear the public prosecutor, if he appears. After complying with these requirements, the Appellate Court has full power to pass any of the orders mentioned in the section. It is to be noted that if the appellant or his pleader is not present, it is not obligatory on the Appellate Court to postpone the hearing of the appeal. If the appellant or his counsel or the public prosecutor, or both, are not present, the Appellate Court has jurisdiction to proceed with the disposal of the appeal; but that disposal must be after the Appellate Court has considered the appeal on merits. It is clear that the appeal must be considered and disposed of on merits irrespective of the facts whether the appellant or his counsel or the public prosecutor is present or not. Even it the appeal is disposed of in their absence, the decision must be after consideration on merits.'

3. These observations and provisions of Section 386 of the Code of Criminal Procedure, 1973 were perhaps not brought to the notice of their Lorships of the apex Court, while in deciding Ram Naresh Yadav v. State of Bihar, AIR 1987 SC 1500 : (1987 Cri LJ 1856), wherein their Lordships, made the following observations (Para 2):

'2. It is an admitted position that neither the appellants nor counsel for the appellants in support of the appeal challenging the order of conviction and sentence, were heard. It is no doubt true that if counsel do not appear when criminal appeals are called out it would hamper the working of the court and create a serious problem for the court. And if this happens often the working of the court would become well nigh impossible. We are fully conscious of this dimension of the matter but in criminal matters the convicts must be heard before their matters are decided on merits. The court can dismiss the appeal for non-prosecution and enforce discipline or refer the matter to the Bar Council with this end and in view. But the matter can be disposed of on merits only after hearing the appellant or his counsel. The court might as well appoint a counsel at State cost to argue on behalf of the appellants. Since the order of conviction and sentence in the present matter has been confirmed without hearing either the appellants or counsel for the appellants, the order must be set aside and the matter must be sent back to the High Court for passing an appropriate order in accordance with law after hearing the appellants or their counsel and on their failure to engage counsel, after hearing counsel appointed by the Court to argue on their behalf.'

4. We tried our best to find out and locate other rulings of the apex Court on this point, but could not find one. Since, there are two conflicting rulings of co-ordinate Benches of the apex Court, we have chosen to follow the earlier ruling, which is based on textual interpretation of the provision of old law, which corresponds with the existing provision of the Code of Criminal Procedure. We did not, therefore, dismiss the appeal for non-prosecution, nor did we adjourn the same.

5. In view of the aforesaid state of law and following the mandate of Section 386 of the Code of Criminal Procedure, we have perused the record of the learned trial judge with care and caution and having done so we reserved own judgment. Now, we proceed to dispose of the appeal on merits.

6. Here, briefly the facts. Appellant Balbir was tried for an offence under Section 302, I.P.C, as also for offences under Sections 27 and 25 of the Arms Act along with co-accused Mohanlal and Vikramjeet, who were tried for offences under Sections 302 read with Sections 34, I.P.C, and 342 I.P.C. Learned trial court (Additional District and Sessions Judge, Raisinghnagar) by his judgment dated 22-3-84 acquitted the co-accused Mohanlal and Vikramjeet but found all the three charges proved against the appellant. Consequently, he convicted and sentenced the appellant Balbir to undergo R.I. for life and to pay a fine of Rs. 5000/- and in default to undergo further R.I. for five years for offence under Section 302, I.P.C. Balbir was further convicted and sentenced with R.I. for two years for offence under Section 27, Indian Arms Act and with R.I. for one year for offence under Sections 25(1)(e), Indian Arms Act. All the three substantive sentences were directed to run concurrently. Aggrieved, Balbir has filed this appeal.

7. The appeal was admitted on 22-5-84. The Public Prosecutor was served and the record of the trial court was summoned. Paper books were duly prepared and by order dated 15-5-1991, the appeal was ordered to be listed for hearing. The appeal came on board for hearing on 17-3-1993 and Shri Vijay Bishnoi, Advocate appeared for the appellant and Shri Haider Agha, Public Prosecutor appeared for the State. Time was sought hence the hearing of the appeal was adjourned. On 27-4-1993, the appeal came on board for hearing but neither side appeared as advocates including the Public Prosecutor were on strike.

8. As stated already, we have perused the record of the case as also the contentions raised in the memo of appeal as also the judgment of the court below. Questions to be decided by us are whether conviction of the appellant Balbir on the three counts noted above are not proper and he deserves to be acquitted of all the said charges.

9. Briefly stated, the prosecution story is that on 2-12-1991, at about 6.30 p.m., appellant Balbir along with co-accused Vikram and Mohanlal, went to the shop of PW 1 Gokulchand, which is situated near local cinema at Raisinghnagar. At that time, besides Gokulchand, aforesaid, PW 2 Bhimsen and PW 3 Chirangilal were also sitting in the shop. Hukamchand, who is father of Chiranjilal and uncle of Gokulchand was away from the shop in connection with collection of some dues. PW 4 Mahaveer Prasad, PW 5 Brij Lal who resided in that very locality, were in their respective houses. PW 6 Shishupal was sitting in his shop nearby. It is alleged that the three accused persons came to the shop of PW 1 Gokulchand and appellant Balbir entered the shop and picked up a piece of 'Gur' from the shop. At this Gokulchand protested, upon which all the three accused started abusing him. Then all the three accused left the shop and proceeded towards the cinema house. Meanwhile, Hukamchand had come to the shop. All the three accused including the appellant also returned to the shop. Hukamchand remonstrated the appellant for his misconduct, upon which Mohan and Vikram caught hold of the hands of Hukamchand and the appellant took out a pistol from the folds of his 'dhoti' and fired at Hukamchand from very close quarters, hitting Hukamchand on the left side of the chest. Thereafter, all the three accused including the appellant ran away.

10. The prosecution story is that all the three acccused were well known to Hukamchand, Gokulchand, Bhimsen and Chiranji and Hukumchand said ohj us xksyh ekjh] chu us xksyh ekjh Gokulchand then took Hukumchand to the shop of Ramesh and made Hukamchand lie down on the 'phatta' of the shop of Ramesh. Meanwhile, PW 4 Mahaveer Prasad, PW 5 Brijlal and PW 6 Sheeshupal also reached there. They were informed of this incident. Jeep of PW 15 Om Prakash was summoned to the spot and in a short while Gokulchand PW 1 along with others proceeded to take Hukamchand to the hospital. On the way, Gokulchand got down from the Jeep and went to the Police Station, Raisinghnagar, where he lodged an oral report of the incident at about 7 p.m. This report was scribed by PW 19 Abdul Razaak, SHO of Police Station Raisingnagar. He registered a case under Sections 302/34, I.P.C, and 27 of the Arms Act against all the three accused persons. He immediately proceeded to the hospital and recorded the statement of Hukamchand, who was in a precarious condition. He requested the doctor on duty to examine the injuries of Hukamchand and also arranged for recording of dying declaration of Hukamchand. Abdul Razaak seized one sweater of Hukumchand and prepared Ex. P-4 in this regard. He also took into possession blood stained clothes of Gokulchand vide Ex. P-3 and of Brijlal vide Ex. P-5 their clothes having been stained with blood while lifting Hukamchand, who had been bleeding. PW 17 Dr. Surendra Mohan Sharma attended to injured Hukamchand and he found one gun-shot injury on left chest of the injured. Mean while Shri R. K. Jain, Munsif & Judicial Magistrate, Raisinghnagar reached the hospital and recorded the dying declaration (Ex, P-9) of Hukamchand in the hospital.

11. The prosecution story is that Dr. Surendra Mohan Sharma found that condition of Hukamchand was deteriorating and the injured had become critical. He, therefore, advised that injured be removed to Ganganagar Hospital. Upon this, P W 7 Ramlal took the injured in car of Pyarelal Seth to Ganganagar. He was accompanied with certain relatives, one doctor, one compounder and ASI Ramdeo Singh of Police Station, Raisinghnagar. When these people reached Padampur, the injured breathed his last. However, the dead body was taken to Ganganagar Hospital where the doctor finally pronounced him to be dead.

12. ASI Ramdeo Singh (PW 13) prepared inquest report Ex. P-7 on 3-12-81 and arranged for post mortem of the deceased. Prior to this post-mortem examination, Dr. Kapil Deo of Govt. Hospital, Ganganagar X-rayed the dead body and prepared report Ex. P-12 and X-ray plate Ex. P-13. Thereafter on 3-12-81 Dr. R. K. Gupta (PW 20) of Govt. Hospital, Sriganganagar conducted autopsy on the dead, body. He found rigor mortis present on the upper half of the body. There was a lacerated wound on the left side of the chest 3' above the left nipple and 3' away from the sternum. It measured 1 1/2 x 1/2 x thoracic cavity deep. The wound was oval in shape and was bit obliquely placed. The margins of the wound were inverted. There was no blackening, scorching or tatooing present around the wound.

13. Upon internal examination, Dr. Gupta found lacerations of left pleura and left diaphragm. Second left rib had been fractured. Pericardium and left ventrical had been lacerated and the chambers of heart were empty. The peritonial cavity was full of blood. A bullet was found in between 8th and 9th inter costal space. According to Dr. Gupta the deceased died due to heamorrhaged shock due to gun-shot injury. He found the wearing apparel of the deceased stained with blood. He recovered these clothes and the bullet and duly sealed them vide Ex. P-28 and Ex. P-29 respectively. He prepared post-mortem report Ex. P-27 in this regard.

14. It is alleged that Abdul Razaak inspected the site on 3-12-81 and prepared site plan Ex. P-2 and its legend Ex. P-16. He arrested the appellant on 7-12-81 at 7 p.m. vide Ex. P-17. Vikram was arrested earlier on 3-12-81 vide Ex. P-18. On 9-12-81, appellant volunteered informations regarding one pistol and empty which were recorded by Abdul Razaak vide Ex. P-19 and Ex. P-21. In pursuance of this information, a pistol and empty were recovered at the instance of the appellant Balbir and were duly sealed vide Ex. P-20. Statements of various witnesses were recorded during the investigation. Articles recovered during investigation were forwarded to State Forensic Laboratory from where report Ex. P-26 was received. Clothes recovered during investigation were forwarded to the Serologist who submitted report Ex. P-27.

15. After completion of formalities of investigation, all the three accused were challaned before Munsif & Judicial Magistrate, Raisinghnagar, who committed them to stand trial before learned Addl. Sessions Judge, Raisinghnagar who framed due charges against them. All the three accused pleaded not guilty and claimed trial. At the trial, the prosecution examined as many as twenty witnesses. In their statements recorded under Section 313, Cr.P.C, all the accused persons denied their complicity in the crime: They claimed that they had been falsely implicated. However, they did not lead any defence.

16. As stated earlier, the learned trial Judge acquitted both Vikramjeet and Mohanlal. However, he convicted and sentenced the appellant as stated above.

17. We have carefully and meticulously perused the judgment and record of the learned court below and we have no hesitation in holding that Hukamchand (deceased) was shot at in the town of Raisinghnagar by a firearm on the evening of 2-12-81 at about 6-30 p.m. and he succumbed to said gun-shot injury when he was being removed from Raisinghnagar Hospital to Sriganganagar Hospital. Thus, he did not die natural death and did die a homicidal death. This position is incontrovertible.

18. Now, the only question to be examined is whether learned trial Judge was right in holding appellant guilty of murder of Hukamchand and being in possession of a firearm unlawfully and using such firearm for commission of the said offence of murder. In this context, the basic premise on which the edifice of the prosecution rests, is that the appellant was well known to deceased Hukamchand and PWs Gokulchand, Bhimsen and Chiranjilal. We have to examine if the prosecution witnesses on this basic issue are reliable and worthy of credlence.

19. This question assumes vital importance in the back ground of testimony of Shri R. K. Jain, who is said to have recorded the dying declaration of the deceased and report Ex. P-l 1 prepared contemporaneously by Dr. Surendra Mohan Sharma (PW 17).Ex. P-11 is one the earliest written versions about the incident. It inter alia reads:

'It is to request you that Shri Hukamchand s/o Shri Dungarmal age 40 years Aggarwal R/o Ward No. 10 has been brought to PHC Raisinghnagar by some people R/o Raisinghnagar saying he has been shot down by some body.'

(Emphasis ours).

The doctor further mentioned 'At present the patient can give his statement'. This report clearly shows that till Ex. P-11 had been scribed by Dr. Surendra Mohan Sharma, name of the person guilty of shooting at Hukamchand had not been disclosed, neither by the attendents of Hukamchand, nor by Hukamchand, who was in position to give his statement.

20. Shri R. K. Jain recorded the dying declaration (Ex. P-9) of Hukamchand. Shri Jain recorded to have put a specific question to Hukamchand as to who had shot at him and what were the names of his assailants. He replied to this query : eq>s rhu pkj tuks us ekjk Fkk A eS mudsuke ugha tkurkA muesa ls ,d eksuk Fkk A This dying declaration has been proved by Shri Jain, MJM, Raisinghnagar and discloses that till the recording of the said dying declaration, Shri Hukamchand did not know the names of his assailants. Of course, Shri Jain had diluted the effect of the dying declaration Ex. P-9 by recording a post script but admittedly the post script was not scribed in the hospital and had been written later on at his residence by Shri R. K. Jain. This post script is to the effect that portion E to F of Ex. P-9 viz eS muds uke ugha turk muesa ls ,d eksuk FkkA was recorded while condition of the injured was deteriorating and this part of the statement was given in vague manner and this portion was written when injured was not in a fit condition to give a statement. The learned trial court contented himself of observing that the dying declaration recorded by Shri J.K. Jain did not help the prosecution. He has not taken into consideration the full effect and the import of the portion E to F recorded in Ex, P-9. The prosecution version is that the assailants including appellant were well known to the deceased. The aforesaid recital Ex. P-9 belies this story completely. This is true that the post script appended to Ex. P-9 does dilute the effect of the aforesaid statement but in our opinion post script Ex. P-9 is not admissible in evidence, not being part of Ex. P-9 at all. It was a statement of the impression of the learned Magistrate after he had recorded the dying declaration. This post script was not recorded at the time the dying declaration was made but was recorded much later at the residence of the learned Magistrate, as Shri R. K. Jain has himself admitted. May be, on second thought the learned Magistrate was of the view that perhaps deceased was not in a fit condition to give his last statement. But this is only an impression which the learned Magistrate gathered later on and, therefore, it does not assist the prosecution in any manner. The post script to Ex. P-9 is at best a statement of the learned Magistrate after he had prepared Ex. P-9. To our mind this would not be admissible in evidence and, therefore, this post script does not wipe away the effect of the dying declaration Ex. P-9 recorded by Shri R. K. Jain.

21. It is significant to note that prosecution witnesses, closely related to the deceased, have tried to prove some oral dying declarations, said to have been given by Hukamchand, before he was taken to the Hospital. It appears to be a laboured, attempt to nullify the effect of Ex. P-11 and Ex. P-9. P W 1 Gokulchand has stated that as soon as Hukamchand was shot, he put his hand to his chest and shouted chjh us ekjk&chjh; us ekjk PW 2 Bhimsen, who is nephew of the deceased, has stated ^xkksyhyxus ds ckn esjs pkpk us pksV ij gkFk j[kk vkSj dgk fd cyohj us xksyh ekj nh A* PW 3 Chiranjilal is the son of the deceased and he has stated xksyh yxus ds ckn esjs firk us dgk Fkk fdnyhi ds NksVs us esjs ekj nhA&fQj; dgk fd cychjh;k us xksyh ekj nh A. It passes our comprehension that when Gokulchand, Bhimsen and Chiranjilal were just in vicinity of Hukamchand, when shot had been fired, where was the necessity for Hukamchand to announce that Bir, or Balbir or Daleep's son had shot at him. Had he really told these persons about his assailant, there was no impediment in his way to name his assailant before the doctor or before Shri R. K. Jain. PW 4 Mahaveer Prasad claims to have reached the scene of occurrence within few minutes of occurrence and claims to have accompanied Hukamchand to the hospital. He is nephew of the deceased. He also claims that Hukamchand had told him twice or thrice that he had been shot at by Balbir, PW 5 Brijlal is sister's son of the deceased and he has also given the story that Hukamchand was groaning with agony and was repeating that Daleep's son Balbeeria had shot at him. PW 6 Sheeshupal is the only independent witness and he also claims to have reached the scene of occurrence and has stated that a large number of people had assembled there and were saying that some body had shot at Hukamchand. This witness has been declared hositle and has been corss-examined but has stuck to his guns.

22. P.W. 7 Ramlal was not examined by the investigating officer during the course of investigation but has been examined to say that when he came out of the temple, some people were rushing to the hospital and were saying that his brother Hukamchand had been shot at by Balbir s/o Daleep. Examination of this witness to make this particular statement creates a strong suspicion in our minds, if he has not been examined just to lend some semblence of truth, to the claim of close relatives of Hukamchand that he was repeatedly naming Balbir s/o Daleep.

23. It is interesting to note that PW 1 Gokulchand-does not claim or state that deceased had known the appellant prior from the occurrence, though he makes a claim about himself that he knew all the. three accused because they used to come to Raisinghnagar to see picture and to purchase provisions. In cross-examination, he admitted that he did not know if a 'khata' was maintained in his shop about the dealings with the three accused persons. No such khata has been placed on record. He stated that he had been seeing all the three accused for five years but also admitted that he never went to cinema with the accused persons. He admitted that he did not re-collect when the appellant last purchased any provisions from his shop. He admitted that he did not know the names of the fathers of any of the accused persons. He stated that the names of villages to which the three accused belong had been told to him by Hukamchand. He was asked a pointed question if he had given out the names of the fathers of the three accused to police. It appears that the witness fumbled and faltered for some time and admitted that he had given out the names of their father and he had known the names of their fathers. Thus, he contradicts himself on this very material aspect. He claims to have stated in the FIR that he knew all the three accused because they used to come to Raisinghnagar for seeing cinema but admitted on' cross-examination that this fact was not mentioned in the FIR. He could not explain this material omission at all. From a reading of the evidence of this witness, we are not satisfied that he had known the names of the three accused persons or the names of their fathers or the names of their villages. On this aspect, his testimony is highly strained and appears to be artificial. It is surprising that a shop keeper at Raisinghnagar, which is a big 'mand', would know the names of the three accused, names of their fathers and names of their villages merely because they used to come to see cinema at Raisighnagar or used to purchase provisions from shops at Raisinghnagar. It has not been shown that they ever purchased provisions from the shop of Hukamchand or they even went to cinema in company of the prosecution witnesses, who claimed to know him. The testimony of PW 2 Bhimsen also suffers from this basic infirmity, who was a student of 7th class. He tried to suggest that he knew the appellant and the co-accused because they used to come to Raisinghnagar to see cinema and purchase provisions but admitted that he never saw cinema with them, nor had even talked to the appellant or had talked with other accused persons. He admitted that he did not recollect if accused persons had even purchased provisions from him. In further cross-examination, he admitted that he never visited the village of the accused persons. He stated cktkj esa yksx ckrs djrs gS blhfy, eqfYtekuds firk dk uke irk pyk A cktkj es ckrs lqudj irk yxk fd eqfYteku dgka ds jgusokys gS A

PW 3 Chiranjilal is son of the deceased and he too was a student. In this examination-in-chief he stated that he knew all the three accused for 4-5 years prior to the incident because they used to visit the Mandi daily. In his cross-examination, he stated :

eS cyohj dks 2&3 lky ls tkurk gw ogjk;flag uxj fiDpj ns[kus o lkSnk ysus vkrk gS A bl okds ls igys esjh cyohj lsdksbZ ckr ugha gqbZ A bl okds ds igys nwljs eqfYteku ls Hkh esjh dHkh dksbZ ckrugha gqbZ A eSa eqfYteku ds lkFk dHkh flusek ns[kus ugha x;k A eSa lkroh d{kkesa is /;ku ugha fd eqfYteku us eq>ls dHkh lkSnk fy;k ;k ughaAeq>s /;ku ugha fd esjs lkeus eqfYteku us esjs pkpk dh nqdku ls dksbZ lkSnkfy;k fd ughaA eS eqfYteku ds xkao esa dHkh ugh x;k A cktkj esa yksx ckrs djrs gSblfy, eqfYteku ds firk ds uke dk irk pyk A cktkj esa ckrsa lqudj irk yxk fdeqfYteku dgka ds jgus okys gSaA eS ml vkneh dk uke ugha crk ldrk ftlls eqfYtekuds xkao o cki ds uke dh ckr lquh] eq>s irk ugha fd cyohj u vU; nksuksaeqfTyeku fdrus HkkbZ gSaA

The testimony of this witness does not inspire confidence, when he suggests that he had been knowing all the three accused for 4-5 years prior to the incident.

24. This has kept us guessing as to who provided the names of all the three accused to PW 1 Gokulchand along with names of their respecting fathers and names of villages. This creates a suspicion that the FIR may be a post investigative one and may not have been lodged as promptly and soon after the incident as suggested by the prosecution. PW 1 Gokulchand categorically admitted in cross-examination xksyh pyus ds nwljs jkst eS Fkkus x;k Fkk A;g irk ugha fd fdl Vkbe x;k Fkk A ml oDr Fkkus ij iqfyl us esjs nLr[kr dkxtks ijdjok;s FksA We fail to see what occasion could have Gokulchand to go to Police Station on the next day of occurrence. He does not state what documents were signed by him on the next day at Police Station. Ex. P-2 was prepared by Abdul Razaak next day at the scene of occurrence, As stated in Ex. P-3 and Ex. P-4 to which Gokulchand is signatory, they purport to have been prepared on 2-12-1981. There is no other document on record, which might have been signed by Gokulchand at Police Station on 3-12-1981 and hence the probability that he was asked to sign the FIR on 3-12-81 at Police Station cannot be ruled out.

25. There is one more significant aspect of the matter. According to the star witness of the prosecution, when the appellant fired the pistol at the deceased the barrel of the pistol was hardly '2 to 4' ckfy'r from the chest of the deceased, meaning thereby that it was a very close range firing. According to Dr. R. K. Gupta, the pistol must have been fired from a distance of more than 3 to 4 feet and rightly so. There was no scorching, tatooing or blackening around the wound of entry. This testimony also renders the prosecution story unreliable.

26. Endorsement on Ex. P-l shows that it reached the Magistrate on 3-12-81 at 10-30 a.m. It is surprising that Ex P.-l was not sent to the learned Magistrate on 2-12-81, particularly when the learned Magistrate had been requested to record the dying declaration of the deceased. In the facts and circumstances of the case, this lapse on the part, of the Investigating Officer assumes significance.

27. Normally, when a Magistrate is required to record a dying declaration, a memo or requisition is sent to him in this regard and it is also usual that the particulars of the FIR are also recorded in such a memo, Neither such a memo has been placed, on record nor Ex. P-9 to any such memo nor does it recite the particulars of the FIR. By itself, it was not an important circumstance but in the facts and circumstances of the case, this lapse of the investigation agency reflects upon the quality of investigation, which is not at all as expected in a murder case. If any FIR would have been recorded prior to recording of Ex. P-9, it would have made a mention of this fact in Ex. P-9.

28. P.W. 19 Abdul Razaak could not be expected to admit that FIR recorded by him was post investigation. It is interesting to note that Abdul Razaak claims to have recorded dying declaration of Hukamchand. This dying declaration was not proved during the course of trial. Abdul Razaak has admitted that even the charge-sheet filed by him did not make a mention of a statement of Hukamchand having been recorded by him. Therefore, this alleged dying declaration which has not been proved on record could be of no assistance to the prosecution.

29. It may be stated that no empty was recovered from the scene of occurrence and an empty and a pistol are said to have been recovered from the possession of the appellant at his instance. Appellant was arrested on 7-12-81 vide Ex. P-17. According to Abdul Razaak, appellant volunteered information in respect of a pistol and empty having been concealed in a residential house. A pistol and empty are said to have been recovered in pursuance of this information, the same day at 2.30 p.m. vide Ex. P-20. This recovery is said to have been made in presence of Surjaram and Dhudaram. Surjaram and Dhudaram have not supported the testimony of Adbul Razaak in this regard and have been declared hostile by the prosecution. It is . significant to note that the bullet which is said to have been recovered by Dr. R. K. Gupta from the body of the deceased on 3-12-81 was not sent to Forensic Science Laboratory promptly and the Investigating Officer waited till recovery of the pistol and the empty. There is no explanation from the side of the prosecution as to why the bullet was not promptly sent to the Forensic Science Laboratory and why the Investigating Officer waited till the recovery of the pistol and empty from appellant Balbir. Ex. P-23 is a forwarding letter with which three packets marked E, F, and G were sent to the Forensic Science Laboratory. Sealed packet marked 'E' is said to have contained pistol recovered from appellant Balbir along with an empty. While sealed packet 'F' is said to have contained a bullet recovered from the body of the deceased and sealed packet 'G' is said to have contained another pistol recovered from co-accused Vikram. The specimen seal impressions which had been sent with Ex. P-23 are Ex. P-24 and Ex. P-25. Report of the State Forensic Science Laboratory does not indicate that the specimen of the seal of Dr. R. K. Gupta, who had sealed the bullet was sent to the State Forensic Science Laboratory. Ex. P-26 is the report of the State Forensic Science Laboratory and the relevant portion of this document under the heading 'Description of Packets' reads as follows:

'The packet (s) Three packets marked E.F. & G. enclosed within cloth cover, which were properly sealed with impression of a seal corresponding with the seal impression forwarded .'

The doctor does not state that impressions of two different seals were sent to State Forensic Science Laboratory for comparison. Dr. R. K. Gupta does not state to whom he had delivered the sealed packet containing the bullet extracted by him from the body of the deceased vide Ex. P-29. PW 13 Ramdeo Singh is the police official (ASI), who had accompanied the dead body to Sri Ganganagar and had got the autopsy performed to the same. He does not state that he received any sealed packet from Dr. R. K. Gupta. Abdul Razaak also does not state that he received from Dr. a sealed packet of the bullet. He also does not state that he had received specimen seal Ex. P-24, Ex. P-25 of Dr. Gupta, Ex. P-29. PW 11 Prem Singh has stated that the packets of wearing apparel of Hukamchand and of bullet were deposited with him by constable Jagdish Chandra PW 12, Jagdish Chandra does state that he had brought two sealed packets from Sriganganagar which had been handed over to him on 3-12-1981 by the doctor. He does not state that any seal specimen were also obtained by him from Dr. Gupta. Dr. R. K. Gupta, also does not state that he had handed over any seal specimen to Jagdish Chandra Constable. Prem Singh was the 'moharir' of the Police Station, Raisinghnagar and he claims to have deposited in 'malkhana' of Police Station, Raisinghnagar two packets on 3-12-1981 brought to him by Jagdish Chandra constable. He also does not state that any specimen of the seal impression was also received by him from Jagdish Chandra. PW 14 Ramjilal is the carrier of the various sealed packets, lie claims to have received seven sealed articles from Prem Singh on 31-12-81 and further claims to have deposited them on 1-1-82 at State Forensic Science Laboratory. He also docs not slate that he had carried with him the seal impressions of Dr. R. K. Gupta with which the packet of the bullet had been sealed. Report Ex. P-26 of the State Forensic Science Laboratory does not indicate that the jacketted bullet from packet 'F' had been fired from empty i.e. cartridge C/l. Thus the recovery of the bullet and the recovery of the pistol and the empty do not connect the appellant with the crime, it has not been established that bullet sent in sealed packet 'F' had been fired from the pistol said to have been recovered from the appellant or was a part of empty i.e. cartridge case (C/1).

30. There is one more important aspect of the matter. If the bullet sent in packet 'F' was really extracted from the Wily of the deceased, then it is natural that it would have contained some tell-tale marks of blood. It does not appear that the bullet in question was at all subjected to a test with a-view to find out if it was stained with human blood. Ex. P-27 is the report of Serologist and Chemical Examiner to the Government of India and it shows that the bullet in question was never sent to him for detection of human blood on the same. On this count also, it is extremely doubtful if the bullet said to have been sent to the State Forensic Science Laboratory was the self-same one which had been recovered from the body of the deceased. In other words it is not possible to state if the bullet was the fatal one.

31. There is no other evidence to connect the present appellant with the crime. The testimony of the alleged eye-witnesses is tainted one and they have left no stone unturned to suggest that the had known the appellant before the occurrence had taken place. Their evidence does not inspire confidence.

32. We, therefore, find that in the present case, there is no reliable evidence to establish that it was the appellant Balbir who had committed murder of Hukumchand by firing a pistol at him.

33. We may, however, make it clear that. we do not mean to say that appellant Balbir may not have committed this murder. May be he might have committed this murder. However, a heavy burden lies on the prosecution to establish beyond shadow of reasonable doubt that it was the appellant and the appellant alone who had committed the murder of Hukamchand. There is a great distance to be travelled between proposition 'must have and 'may have'. The prosecution has failed to traverse this distance so far as the alleged murder of Hukamchand by the appellant is concerned.

34. For this very reason, it is not possible to uphold the conviction of the appellant for offence under Section 27 of the Arms Act. However, so far as offence under Section 25(1)(e) of the Arms Act is concerned, this offence has been brought home beyond shadow of reasonable doubt. It has been established by the prosecution evidence that he was found in possession of a pistol without any licence for the same.

35. On the aforesaid premises, we partly accept this appeal and set aside the conviction of the appellant for offence under Section 302, I.P.C, and under Section 27 of the Arms Act as also the sentences passed on the said counts. However, the conviction of the appellant, for offence under Section 25(1)(e) of the Arms Act is maintained. The appellant has already undergone the sentence for offence under Section 25(i)(e) of the Arms Act and he may be released forthwith, if not required in any other case.