The prosecution mainly relied on the evidence of Ucchablal, P.W. 1 and Narain P.W. 2 regarding the incident.
As the presence of the appellant near the field at the time of the incident, as also the fact that Bajranglal died as a result of the injuries sustained by him by the gun shot, are admitted by the appellant, it is number necessary to refer to the various items of evidence led by the prosecution in this regard.
The appellant admitted that the police recovered the gun Ex 18 from him and also the shirt and bandi He also examined two witnesses to prove that there was numberenmity between him and the deceased.
He further stated that he had gone to the jungle with his gun for hunting and was returning home on the evening of the day in question His land was on his way to his house from the jungle.
But his two brothers protested against his interference and P.W. 1 caught hold of him with the gun.
The same version was spoken to by P.W. 1, before the companymittal Court, which had been marked as Ex.
Such companyroboration, the High Court found in Ex.
The appellant when he was examined Under Section 342 CrPC pleaded that the land had been given by his father as his share as he had taken over the liability to discharge the entire debts of his father.
has been won over by the appellant and the answers given in cross examination with a view to support the appellant are false.
The learned Sessions Judge was of the opinion that as P.W. 1 in his cross examination has totally supported the appellant and as there was numberother independent evidence against the appellant, it was unsafe to act on the testimony of P.W. 1 and companyvict the appellant.
P.C. and treating Ex.
P. I. Ex.
An oval oblique wound of the size of 1/2 x 2/3 with everted and irregular edges on back left side 3 from the middle at the level of the 7th spine.
P. 1 was given by him voluntarily and that he signed it after it was read ever to him by the police and there was numbercompulsion exercised by the police at that stage.
When they were at their work, the appellant came to the field at about 6 P.M. armed with a gun and after threatening them fired a shot against Bajranglal.
P. 28, expert, C.W. 1.
In order to act on the answers given by P.W. 1 in his chief examination, it found companyroboration in Ex.
P.W. 15, Dr. Umed Singh Rathore, who performed the post mortem on the body of the deceased found the following external and internal injuries, described in the post mortem certificates External injuries A punched circular wound of the size 1/2 x 1/2 x 5 depth with inverted ecchymosed edges placed on the chest left side between 3 and 4 ribs 2 from the midsternal line directed towards back.
On the other hand, the High Court has taken care to see whether is other independent companyroboration to enable to the Court to act on the answers given by P.W. 1 in his chief examination.
It follows that the plea of the appellant regarding the deceased having sustained the injury by the gun going off accidentally, is absolutely false.The injuries sustained by P.W. 1 and the nature of injury sustained by the appellant also companyroborate the original version given by P.W. 1 in Ex.
The injury received on the head of the appellant was sustained by the ganti of P.W. 1 falling on the head of the appellant and this happened after Bajranglal had been shot dead.
The shot hit Bajranglal on his chest and he fell down dead.
Therefore, the main evidence relating to the actually occurrence was that of P.W. 1.
The size of the injury was stated to be 1 3/4 x 1/5 x 1/3.
About three or four years prior to the occurrence Ucchablal and his brother Bajranglal along with one Hiralal son of their brother Bhanwarlal had filed a suit against the appellant for partition of the land.
The appellant was tried in Sessions Case No.
Bhanwar Lal had died some 15 or 16 years before the occurrence.
He questioned them as to why they Were doing an illegal act, when the matter was before the Court.
On the day of the occurrence i.e. July 15, 1962, at about 3 P.M. the deceased and Ucchablal as usual went to the filed to companyplete the work of putting up the Doli.
P. 7 and in his chief examination that the appellant fired the gun at Bajranglal when he was about 10 feet away from him.
Ucchablal was also examined on the same day by P.W. 15.
If these items of evidence are accepted, it is clear that the shooting by the appellant was intentional and that he had numberright of private defence as the injury in his head had been sustained by him number at the hands of the deceased but at the hands of his other brother P.W. 1, after the said incident was over.
Pleura on left side torn with a circular wound.
P. 1, Ex.
Internal injuries 1 8th rib fractured on left side back with irregular rough and crushed fractured ends.
There was a dispute between the appellant and his two brothers Ucchablal and Bajranglal and the heirs of his deceased brother Bhanwarlal on the question of effecting partition of the land.
When Ucchablal tried to snatch the gun from the appellant, the latter gave him some blows on his knee and back with the barrel of the gun.
During this scuffle the genti which Ucchablal had in his hand hit the head of the accused.
before the companymittal Court.
When he came near the land he Lund his two brothers, the deceased and P.W. 1, companystructing the Doli on his field.
He was examined on April 8, 1963.
P. 7 even during the trial.
P. 1 were true.
The case of the prosecution was as follows The appellant and his three brothers Bhanwarlal, Ucchablal and Bajranjlal owned jointly 14 bighas of land or joint family property.
C.W.1 was examined in the presence of the appellant and the latter was given a full opportunity to cross examine him.
As the report Ex.
P. 7, in his chief examination he had stated that he had given such a statement before the companymittal Court, but in cross examination he explained it by saying that he was companypelled to give such a statement by the police.
P. 7 and in his chief examination.
28 was already before the Court, the High Court examined the ballistic expert as Court Witness No.
Sessions Judge, Ajmer, for an offence Under Section 302 I.P.C. for causing the death of his brother Bajranglal on July 15, 1962.
For these reasons, the learned Sessions Judge acquitted the appellant.
The learned Sessions Judge was also of the view that the defence story cannot be ruled out as improbable in the circumstances.
A few pieces of bones weeded in the wound.
P. 1 that he had turned hostile to the prosecution with an attempt to support his brother is evident from the fact that he companypletely resiled from the statement made in Ex.
P. 7 P.W. 1 had admitted that Ex.
In the chief examination before the Court, when he was examined on April 8, 1963, he gave the same version as that companytained in Ex.
P.W. 15 has given evidence to the effect that the cause of death was syncope due to injury to the left lung by a fire arm The appellant was also examined by P.W. 15 on the same evening The appellant had a lacerated wound with irregular and companytused borders and bleeding on touching placed vertically on the back of the hand on the occipital region, right side 3 inches from the right mastoid.
But when the cross examination companytinued on the next day, that is, on April 9, 1963, he companypletely went back upon the evidence given in examination in chief.
From all these circumstances, C.W. 1 has stated that the gun should have been fired from a distance of more than 5 or 6 feet, which makes the plea of tussle between the appellant and the decased, as highly improbable.
Mr. K.B. Mehta, learned Counsel for the State, on the other hand, supported the reasons given by the High Court in reversion the order of acquittal.
P. 1 and Ex.
P. 7 as substantive evidence and by doing so the High Court has really filled up the lacuna in the case of the prosecution 2 the High Court has erred in basing the companyviction on the sole testimony of P.W. 1, who had given companyflicting versions in his examination in chief and cross examination, especially when there was numberindependent evidence to companyroborate his evidence in chief examination and 3 the plea of the appellant regarding the circumstances under which Bajranglal sustained the injury ought to have been accepted.
On the other hand, to companyplete the record and to enable it to set on Ex.
The High Court has set aside the order of acquittal and in turn has companyvicted the appellant for the offence Under Section 302 I.P.C. and has sentenced him to undergo imprisonment for life.
P. 7, but when his cross examination took place, on the next day, he began to give answers in favour of the appellant making it appear that the appellant was number aggressive and that in the scuffle that took place, between the deceased the appellant, the gun went off accidentally.
P. 7 by treating it as substantive evidence, it passed orders to that effect and examined P.W. 1 and gave an opportunity to the appellant to cross examine the said witness.
It may be stated at this stage that P.W. 1s evidence in examination in chief relating to the incident was in accordance with the facts mentioned in Ex.
On the same day he was cross examined for some time.
The deceased then gave a blow with the genti on his head.
evidence given by P.W. 1.
The State filed an appeal before the High Court against the decision of the Sessions Judge.
P. 1 before the Police.
13 was recovered from him.
P. 7 as substantive evidence.
On appeal by the State, the High Court set aside the order of acquittal.
The High Court is of the view that P.W. 1.
A circular wound held in the left lung upper lobe anterior aspect with direction behind.
The High Court in the main has acted on the facts companytained in Ex.
The Sessions Judge acquitted the appellant by his judgment and order dated January 4, 1964.
Regarding Ex.
In fact the evidence that the gun must have been fired more than four or five feet from the target is also supported by the statement of P.W. 1 in Ex.
On the other hand, he gave a version to the effect that the appellant did number intentionally shoot Bajranglal and that the latter sustained the injury in companysequence of the gun going off by incident, In fact he has also stated that when the accused protested against the Doli being companystructed, Bajranglal began to beat the appellant with a ganti and tried to snatch the gun from the appellant.
Ex P.7 was already in evidence before the Magistrate and numbermally that statement should have been treated even by that Court as substantive evidence Under Section 288 Cr.
and Ex.
The accused was arrested the next day and the gun Ex.
The report of the ballistic expert Ex.
28 was already before the Court the High Court was justified in examining the ballistic expert as Court witness No.
In fact he has also stated that when the appellant protested against the putting up of the Doli the deceased hit the appellant on his head with the Genti.
A. Vaidialingam, J. This appeal by the accused, by special leave, is directed against the judgment and order of the Rajasthan High Court dated August 7, 1968 in D.B. Criminal Appeal No.
P. 28, the report of the ballistic expert.
P.C. In fact he has been examined cross examined about Ex.
In his examination in chief he supported the Prosecution in full and also admitted that the facts mentioned in Ex.
394 of 1964.
Therefore, the High Court did number do anything to fill up any lacuna in the prosecution case.
The object of examining him was to ascertain whether it was probable for the gun to have gone off accidentally as pleaded by the appellant.
From the evidence of C.W. 1 read with his report Ex.
P. 1 and Ex.
4 of 1963 by the Addl.
The ballistic expert was examined in the presence of the appellant and an opportunity was given to him to cross examine the said witness.
Diameter of the hole 1.
1, in order to clarify the position whether the gun companyld have gone off accidentally as pleaded by the appellant and supported by P.W. 1 in his answers given in cross examination.
P. 1, Ex.
P. 7 and Ex.
Ucchablal on the same evening at about 6 45 P.M. gave a companyplaint Ex.
It is numberdoubt true that the evidence of such a witness like P.W. 1 has to be treated with caution, but it is number as if that the High Court has merely acted on the answers given by him in his chief examination.
One abrasion and one companytention was on the back and one abrasion was on the left scapular region and one abrasion was on the left knee.
The deceased also caught hold of the barrel of the gun which was in his hand and tried to snatch it away During this attempt made by the deceased, the appellant pulled the gun towards him and the gun went off and hit the deceased on his chest and the latter fell down and died on the spot.
He had two companyfusions, three abrasions and a linear scratch.
