Rajasthan High Court - Jaipur
Balak Ram vs State Of Rajasthan on 21 April, 1994
Equivalent citations: 1994CRILJ2451, 1994(2)WLC298, 1994(1)WLN691
JUDGMENT Rajendra Saxena, J.
1. The aforementioned represented appeal as well as the jail appeal have been preferred against the judgment dated 19-2-1987 passed by the learned Addl. Sessions Judge, Raisingh Nagar in Sessions Case No. 39/85, whereby the appellant was found guilty for the offences under Section 302, IPC and Section 27, Indian Arms Act and sentenced to life imprisonment with a fine of Rs. 200/ - and in default to further undergo two months' simple imprisonment under the first count and rigorous imprisonment for one year with a fine of Rs. 200/-and in default to further undergo simple imprisonment for two months under the second count. It was also directed that both the substantive sentences shall run concurrently.
2. Briefly stated the case of the prosecution is that PW 1 Lal Chand, who is a Pong Dam Oustee, was allotted in the year 1977 one murabba of agricultural land situtated in Chak 20 A. He had a son and five daughters. Appellant Balak Ram, who is an ex army presonnel, was married to Lal Chand's eldest daughter DW 2 Smt. Kashmir Kaur. About seven years prior to the alleged incident, Lal Chand had given the said land to the appellant for cultivation. The appellant also started living in the said land by constructing a 'dhani' thereon. In the year 1983, Lal Chand along with his family came from Himachal Pradesh and they also started living in one of the rooms in the said 'dhani' and started looking after his land. This annoyed the appellant, who started threatening Lal Chand. On 17-8-1984, Lal Chand submitted a written report Ex. D.6 to the S.H.O., P.S., Anupgarh, wherein he alleged that in his absence, appellant Balak Ram had given twenty bighas of his allotted land on 'theka' to one Jarnail Singh and told him to cultivate the remaining five bighas only; that the appellant also took away the contract amount and that when he asked him for the said amount, the appellant has threatened to kill and dispossess him from the said land. He further alleged that the appellant also threatened his another daughter Kumari Sarla and told her that he would kill her father Lal Chand by his gun. He further mentioned in Ex. D.6 that his eldest daughter Smt. Kashmir Kaur was in collusion with her husband and prayed that the appellant's gun be got deposited and that the appellant be dispossessed from the 'dhani' and necessary action be taken against him. Thereupon, after enquiry, the S.H.O. submitted a report under Section 107, Cri.P.C. Ex. D.10 against the appellant in the Court of Executive Magistrate, Anupgarh, wherein the appellant was arrested on 20-9-1984 and ultimately was bailed out on 29-11-1984. It is the case of the prosecution that the appellant used to threaten Lal Chand that after killing his daughters, he would implicate the latter. On 1-12-1984 at about 8-8.30 A.M., PW 1 Lal Chand along with his daughter PW 3 Kumari Sarla Devi aged 15-16 years heard the sound of gun shot fire coming from the house of the appellant. Thereupon, they rushed to appellant's house and saw PW 4 Kumari Raksha weeping in the courtyard, who told them that her father (appellant Balak Ram) had fired a shot from his gun towards her younger sisters Sushma Kumari and Lata. Threupon, Lal Chand and Kurnari Sarla went inside the room of the appellant, where they found him standing armed with his licensed twelve bore double barrel gun. Sushma and Lata were lying profusely bleeding. Lata had died on the spot, while Sushma was moaning. Inside appellant's house, DW 2 Smt. Kashmir Kaur and one boy Shibbu alias Tambi were standing. On hearing the sound of gun shot fire, Jarnail Singh and PW 5 Purkha Ram also came there. Shibbu alias Tambi told them that appellant Balak Ram had fired from his gun on his daughters in his presence. Lal Chand, Kumari Raksha and Purkha Ram enquired the appellant, who made an extra judicial confession before them and told. eSa ikih gqW~a A esjs ls xyrh gks xbZ^^ . It is alleged that thereafter appellant fled away from his house taking his gun. Lal Chand lodged an oral report on the same day at 10.30 A.M. to the S.H.O., P.S., Anupgarh, who scribed the F.I.R. Ex. P. 1. Injured Sushma and the dead body of Lata were immediately brought to Primary Health Centre, Anupgarh, but Sushma also succumbed to her injuries on the way. PW 11 Fakruddin, Sub-Inspector also reached the Primary Health Centre, Anupgarh.
3. PW 8 Dr. Prem Ratan conducted the post mortem examination of the dead bodies of Lata and Sushma and prepared their post mortem examination reports Ex. P. 17 and Ex. P. 18 respectively. The Doctor found ten fire-arm circular wounds of the size of 1 x 1 1/2 mm. on the right shoulder anteriorly in an area of 6 x 8 cm. and thirteen fire arm wounds on the right upper pectoral region, of the size of 1 x 1 1/2mm. round scattered in an area measuring 8 x10 cm. on the body of Lata aged five years which had caused injuries to her right lung, perticardium and heart. The margins of wound were blackened. He recovered three small metallic pellets from her thoracic cavity, which were sealed and later on sent to the ballistic expert. The Doctor opined that the cause of Lata's death was haemorrhagic shock from internal bleeding due to rupture of her heart by fire arm injury.
4. The said doctor found gun shot wound in an area of 20 x 15 x 10 cm. on the upper abdomen of Kumari Sushma aged eight years from which intestines were protruding. Her liver was lacerated and pieces of liver were seen in the wound. The margins of the wound were blackened and those blackenings were not wiped off from the wet cotton. Nineth coastal cartilage of right side was also frasctured. The doctor took out three small metallic pellets from the abdominal wounds, which were sealed and later on sent to the ballistic expert. Dr. Prem Ratan opined that the cause of Sushma's death was haemorrhagic shock due to rupture of her liver caused by fire arm injury.
5. PW 11 Fakruddin, S.I., prepared the memos of the dead bodies of Sushma and Lata marked Ex. P.3 and Ex. P.4 respectively, Panchayat Namas Ex. P.5 and Ex. P.6 respectively. He also seized and sealed their blood stained clothes vide seizure memos Ex. P. 7 and Ex. P. 8. Thereafter, he went to appellant's 'dhani', inspected the site, prepared the site plan Ex. P. 10 and memo thereof Ex. P. 10-A. He found blood lying in the room of the appellant. He seized and sealed the blood stained earth from the said room along with the controlled sample vide seizure memos Ex. P. 11 and Ex. P. 12 respectively.
6. The appellant, who had absconded immediately after the occurrence was arrested on 9-12-1984. At the time of his arrest, he was carrying his licensed twelve bore double barrel gun with three live twelve bore cartridges and the firearm licence, which were seized and sealed vide seizure memo Ex. P. 16. It is the case of the prosecution that on 9-12-1984 the appellant volunteered information Ex. P. 20 and in pursuance thereof, got one empty twelve bore cartridge recovered from the root of 'Sarkanda plant' near the water channel situated in his 'dhani'. That empty cartridge was also seized and sealed vide seizure memo Ex. P. 13. The sealed packet of the double barrel gun, one sealed packet containing twelve bore special cartridge case marked C-l and two sealed packets containing three lead pellets each were sent to the State Forensic Science Laboratory, Rajasthan; Jaipur. The ballistic expert after necessary analysis, detection of combustion products of powder charge from the barrel residues and stereo and comparison microscopic examinations vide his report Ex. P. 22 reported that the said twelve bore double barrel gun was a serviceable fire arm and had been fired sometimes before it was received in the laboratory. He further opined that one twelve bore cartridge case marked C/1 from packet 'F' had been fired from the right barrel of the said gun and that the lead pellets from packets 'G' and 'H' could be used in twelve bore cartridge and could have been fired from the said twelve bore double barrel gun.
7. After completing investigation, a challan was filed against the appellant in the Court of MJM, Anupgarh, who in his turn, committed the case to the learned Addl. Sessions Judge. The appellant pleaded not guilty and claimed trial. The prosecution examined as many as twelve witnesses. The appellant in his plea recorded under Section 313, Cr.P.C. admitted that he is the son-in-law of PW 1 Lal Chand; that the latter had given his allotted twenty five bighas of land situated in Chak 20 A to him for cultivation and that he used to reside in the 'dhani'. He has further admitted that prior to the incident, Lal Chand had taken over the possession of the land from him, but denied that he used to quarrel and threaten the latter. He also admitted that Lal Chand had filed a report Ex. P. 6 against him and that in those proceedings, he was sent to jail. He denied to have fired from his gun and caused injuries to his daughters Sushma and Lata. He, however, admitted that when Lal Chand came to his house, he and his wife Smt. Kashmir Kaur were inside their room. He denied to have made any extra judicial confession before Lal Chand and maintained that instead, he along with his wife had taken their daughters Lata and Sushma to the hospital in a jeep of the Border Security Force. He further maintained that those two girls were alive for about 1 3/4 hours in the hospital and that thereafter, he did not. know whether they died or not. He stated that he had gone to the Police Station for making a report about the incident and that at that time, Lal Chand was also present there. He further stated that when he was in the police station, the police had recovered his gun from his house in his absence after breaking open the lock. He further stated that the prosecution witnesses belong to his opposite party and want to take possession of the land. He also pleaded that in the year 1980, he was cultivating four murabbas of agricultural land of Ratan Chand; that he had also purchased one murabba of Ratan Chand for which he had advanced Rs. 40000/- and agreed to pay remaining Rs. 20000/- at the time of registration of the sale deed. However, Ratan Chand sold that land as also another agricultural land of his brothers to one Mahendra Singh in the year 1984; that for about an year, talks for compromise took place which failed. Mahendra Singh wanted him to leave the said land, but he refused to hand-over the possession without getting back his advance money. He further stated that on 6-6-1984, Mahendra Singh, Narendra Singh and Balwant Singh along with four five persons had come to that field with one police constable Pappu and forcibly took him to the police station and that he was released after three days. He was again called to the police station on 15-6-1984 and possession of the land was forcibly taken and that even his hut was removed. The appellant has further stated that he reported the matter to the Superintendent, Police but no action was taken; that on 19-6-1984, Deendayal Constable and Mahendra Singh snatched away his gun and that he had also reported that matter to the S.P. He further stated that in his absence, Mahendra Singh and others committed rape with his wife and forcibly took away his household articles from Ratan Chand's land. He reported about the incident to the D.I.G. and the matter was investigated by the Dy. S.P. but no action was taken. Thereafter, he went away to Delhi and when he came back in Sept. 1984, he was arrested and sent to jail from where he was released on bail on 29-11-1984. He asserted that on 1-12-1984 at about 7-8 A.M., PW 2 Shibbu had fired gun shots from 'Khala' (Water channel) situated at about half bigha away from his house; that at that time, his children were playing in the open courtyard outside his house and he was taking his meals and that the first fire hit Lata, while another gun shot hit Sushma. He further stated that thereafter, he brought his rifle from his house and came outside but could not see the assailants. However, he had noticed two jeeps standing near Kila No. 25 of the field which were driven away towards the 'Mandi'. The appellant also told that since the intestines of Sushma had come out from her abdomen, hence he rapped a bandage, took her inside the room and placed her on the cot. Thereafter, he stopped one tractor and took both of his injured girls on that tractor to the hospital, where he found that two constables were already there. He admitted that Lata had died, but Sushma was alive for about 1 3/4 hours. They reached the hospital; that the doctor came after half an hour and that thereafter police constables took him to the police station, where he had narrated the aforementioned incident to the Sub Inspector. He further stated that PW 11 Fakruddin and other police personnel gave him beating, broke his tooth and put him inside the lock up; that his wife was also beaten by the police and that on the next day, he narrated his woeful tale to the Dy. S.P. but no action was taken. He further stated that he was kept in the police lock up for about ten days and thereafter he was produced in the Court on 10-12-1984. He requested the MJM for his medical examination, but no action was taken. He also stated that when he had lifted his injured daughters, his jacket, shirt and 'pajama' were stained with blood and that those blood stained garments had been brought by his wife in the Court. He also produced one lock and documents marked Ex. D.5 to Ex. D. 10. The appellant also examined DW 1 Ayodhya Lal, who had stood surety for him in the case under Section 107, Cr.P.C. and his wife Smt. Kashmira (DW 2). The learned trial Judge by his impugned judgment dated 19-2-1987 found the appellant guilty and sentenced him in the matter detailed ad ultra. Hence this appeal.
8. We have heard Mr. Jagdish Vyas, the learned counsel appearing for the appellant and Mr. D.R. Bohra, the learned Public Prosecutor for the State at length and carefully perused the record of the lower Court in extenso.
9. Mr. Vyas has strenuously argued that in this case, there is only one alleged eye witness to wit PW Shibbu alias Tambi, who is a chance witness and his testimony is not of sterling worth. According to him, his presence ' at the place of incident is very much doubtful and, as such, his testimony should be scrutinised with extra care and caution. According to him, Shibbu is an unreliable witness, whose testimony does not inspire any confidence, specially when his statement has not been corroborated by PW5 Kumari Raksha Devi and Smt. Kashmira, who were admittedly present near the place of occurrence. Therefore, his uncorroborated testimony is not suficient to prove the guilt against the appellant. His next submission is that according to the prosecution story, the motive for the crime was that the appellant wanted to falsely implicate his father-in-law PW 1 Lal Chand, as he had enmity with the latter, but it does not appeal to reason that a father will kill his two daughters of tender age just to implicate his enemy. Had the appellant really killed his daughters and Lal Chand reached the site, he could have very well killed him also with his loaded gun. Therefore, in this case, the motive has not been proved beyond reasonable doubt and the prosecution story is a creature of concoction and conspiracy. According to him, want of motive in such a case is a crucial factor in assessing and evaluating the testimony of the alleged eye witness. For this, he has placed reliance on the case of Rajoo v. State of Rajasthan, 1976 Cri LR (Raj) 469 : (1977 Cri LJ 837); (2) Sujia v. State of Rajasthan (1990 Cri LR (Raj) 119) and (3) Durga Devi v. State of Rajasthan 1992 Cri LC (Raj) 782 : (1993 Cri LJ 1723). His another contention is that the alleged recovery of the gun on 9-12-1984 at the time of the arrest of the appellant is also doubtful because normally, no culprit will carry the gun, the weapon of offence, with him for all those nine days and that the delayed arrest and recovery has been unexplained. Similarly, the alleged recovery of the one empty cartridge vide recovery memo Ex. P. 13 from an open place, which was accessible by all and sundry, cannot be regarded as truthful. His another contention is that though in this case, the Ballistic Expert's report Ex. P. 22 has been filed during trial but the prosecution has not cared to examine the ballistic expert and, therefore, the said report cannot be read in evidence. For this, he has placed reliance on Dungar Singh v. The State of Rajasthan (1976 Cri LR (Raj) 557. His last argument is that there is delay in despatch of the F.I.R. Ex. P. 1, which was received by the Magistrate on 3-2-1984, therefore, the possibility that F.I.R. Ex. P. 1 was scribed after investigation cannot be ruled out. According to him, this delay in despatch of the FIR creates an infirmity in the prosecution story. For this, he has placed reliance on the case of Banwari Lal v. State of Rajasthan (1992 Cri LR (Raj) 92.
10. On the other hand, Mr. Bhandari Public Prosecutor has strenuously contended that PW 2 Shibbu is a resident of Madras, that he is a young boy of 18 years of age, who had come to pay the amount of Rs. 80/- to the appellant, which the latter had taken on loan from PW 6 Pyarelal. According to him, Shibbu is an innocent and independent witness, whose presence was well proved at the time of occurrence and that even his name finds mention in the F.I.R., which was promptly lodged after the incident. According to him, the testimony of PW 2 Shibbu has not been impeached and he has been rightly believed by the trial Judge. PW 2 Shibbu's statement has also been fully corroborated by the testimony of PW 1 Lal Chand and PW 3 Kumari Sarla Devi. Immediately after the incident, the appellant had also admitted his guilt and made an extra judicial confession in the presence of Lal Chand, Shibbu, Sarla Devi and Purkha Ram. According to him, the appellant after the incident absconded along with his rofle. He did not go to the hospital. Neither his name appears in the post mortem report as person who had brought the dead bodies of those girls nor any suggestion was put to the doctor that apellant had brought his injured girls to the hospital. Mr. Bohra has submitted that it stands well established that the appellant was annyoed with his father-in-law Lal Chand because the latter had taken back the land given to him; that he had also threatened Lal Chand for which proceedings under Section 107, Cr.P.C. commenced in the Court wherein he was detained in jail. The appellant was released on bail on 28-11-1984, who wanted to take revenge and falsely implicate persons of his opposite party. According to him, the motive against the appellant was well proved. Moreover, keeping in view the direct evidence, the motive pales into insignificance. He has reiterated that the accused, who absconded immediately after the incident, was apprehended at the bus stand by the police along with the rifle and live cartridgeiiherefore, the delay was caused at the instance of the appellant himself and the recovery of his licenced gun along with the live cartridges is not at all doubtful. Immediately after his arrest, the appellant vounteered information and got recovered one empty cartridge, which he had concealed underneath the roots of the 'Sarkanda' plants standing near the culvert of water channel stituated near his house and that this recovery has been well proved by the Motbir PW5 Purkha Ram and the Investigating Officer. He has submitted that the Ballistic Expert's report Ex. P. 22 is admissible in evidence under Section 293, Cr.P.C., that the appellant did not request for cross-examining the ballistic expert and, therefore, in such circumstances, it was not at all necessary for the prosecution to have examined the ballistic expert. He has asserted that in this case, the F.I.R. was immediately lodged and that the same is not a post investigation document.
11. We have given our most anxious and thoughtful consideration to the rival contentions.
12. Accordingly to the prosecution story, Shibbu alias Tambi, Kumari Raksha and Smt. Kashmira were the eye witnesses of the alleged incident. But PW5 Kumari Raksha Devi aged fifteen years, who is the daughter of appellant Balak Ram, has not supported the prosecution case and she has been declared hostile. The prosecution did not include the name of Smt. Kashmir Kaur, the wife of appellant, in the calendar of witnesses. However, she has been examiend as a defence witness. PW2 Shibbu alias Tambi, aged 18 years is the. son of the sister-in-law of PW 6 Pyarelal Choudhary r/o Cahk 27 A. This Chak is about 12 kms. away from Chak 20A, where the alleged incident took place. PW 6 Pyarelal has deposed that Shibbu alias Tambi is the son of his sister-in-law and that he is residing with him for last nine-ten years. He has further deposed that he is a patient of tuberclosis for the last five years; that about two three years prior to 17-9-1985 i.e. the date on which this witness was exsamined, he had borrowed an amount of Ri100/- from appellant Balak Ram; that about-two three days prior to the alleged incident, appellant .had sent a message to him for returning that amount and, therefore, on 30-11-1984, he had sent the amount of Rs. 80/ - through Tambi to him. He has stated that on the next day at about 2.30, 3.00 PM, Tambi returned and informed him that appellant Balak Ram had shot dead his two daughters by his gun.
13. PW 2 Shibbu alias Tambi has deposed that this 'Mausa' Pyarelal had given Rs. 80/- to him for making the payment to appellant Balak Ram; that on that day, he visited a film show in Anupgarh cinema and reached the appellant's house the same day at about 5 PM; that he paid Rs. 80/- to the appellant and that since it had become dark, he stayed in the night in appellant's house. He has deposed that on the next day morning after taking breakfast he was sitting outside the house of the appellant; that on that day, the appellant had been scolding his daughter Sushnia since morning, who was weeping and that thereafter the appellant carried away her by holding her hand inside his house; that his another daughter Lata was already there inside the house; that appellant Balak Ram took out his gun and fired towards Sushma and Lata; that Lata sustained injuries on her breast, while Sushma sustained injuries on her abdomen and that Lata instantaneously died on the sopt, while Sushma was moaning. At that time, appellant's wife and his another daughter Raksha were also present. Thereafter, Lal Chand and Sarla also reached there. After a short while, Jarnail Singh and Purkha Ram also arrived there. Those persons asked Tambi as to what had happened. Thereupon, he told them that appellant had fired a gun shot on his daughteriShibbu has further deposed that at that point of time, appellant also told those persons that a mistake had been committed by him and that he had committed a sin. To quote his words: esjs ls xyrh gks xbZ gS vkSj iki gks x;k gS^^. PW 2 Tambi has further deposed that thereafter appellant Balak Ram fled away from his house along with his gun and that Lal Chand went away to the police station. He has stated that after a short while, Sarjeet Singh s/o Jarnail Singh came there with a tractor, wherein those two girls were taken to the Anupgarh hospital, that he had also accompanied them along with appellant's wife and that in the way, Sushma also died. This witness has been cross-examined at length, but his testimony has not been impeached. He has stated that at the time of the alleged incident, he was sitting in the courtyard outside the room of Balak Ram from where he had seen the appellant Balak Ram firing a gun shot towards his daughters. According to him, Lata was already inside the room and sitting on a cot and the appellant had carried Sushma inside the room and thrown her in the corner of the room beneath the cot. He has further stated that the appellant had fired towards thsoe girls from a distance of about 2 1/2-3 paces; that the cot was towards the back wall of the room; that the wall as well as the floor of that room was Kachha and that he had reached the Anupgarh hospital at about 9 AM. He has stated that the police had also arrived there after ten-twenty minutes and that thereafter, he left Anupgarh for Chak 27A. In his police statement Ex. D. 1, this fact finds mention that the appellant had stated in his presence to Jarnail Singh, Purkha Ram, Lal Chand and Sarla that he was a sinner and that mistake had been committed by him. Therefore, the suggestion put on behalf of the appellant in Tambi's cross-examination that he had not stated in his police statement Ex. D. 1 about the alleged extra-judicial confession made by the appellant, is factually wrong. We have scrutinised the statement of this witness minutely and in our considered opinion, his testimony during the trial is not at all at variance with his police statement Ex. D.I. There is neither any mateial contradiction nor any improvement nor omission amounting to contradiction in his statement given before the trial Court. His presence has been very well established by the testimony of PW 1 Lal Chand, PW 3 Sarla Devi and PW 5 Purkha Ram.
14. Since PW 4 Kumari Raksha is the daughter of appellant, she has resiled from her police statement Ex. P. 2 and not supported the prosecution version. However she has clearly admitted that her sisters Lata and Sushma had received gun shot injuries but stated that some unkown person had fired a gun shot on her two sisters and thereafter he had fled away. She has not stated that Tambi had fired towards her sisters as has been later on stated by the appellant in his plea under Section 313, Cr.P.C. In her cross-examination, she has stated that her two sisters were ouside her house and at that time they were fired and that thereafter her father (appellant) had lifted both of them and took inside the room. Thus, PW 4 Rakhsa also admits that Lata and Sushma had received gun shot injuries, but she has stated that some unknown person had fired towards them outside their house. It may be mentioned here that none of the prosecution witnesses has stated that they had seen Lata and Sushma lying injured outside the house of the appellant nor PW 11 Fakruddin, Sub-Inspector, who inspected the site had found any blood stains outside the house of the appellant. On the other hand, the blood was found inside the , room, where the alleged incident had taken place. Therefore, according to the evidence recorded in this case it has not at all been proved that Lata and Sushma had received gun shot injuries outside the house of the appellant. It may also be mentioned here that no question has been put on behalf of the appellant to PW 2 Shibbu alias Tambi, to the effect that he had fired a gun shot towards Lata and Sushma, as has been later-on pleaded by the apellant in his plea recorded under Section 313, Cr.P.C. No such question has also been put to PW 1 Lal Chand, PW 3 Sarla Devi and PW 5 Purkha Ram. Therefore, it is abundantly apparent that initially, the appellant, had taken the plea that some unknown person had fired and injured his daughters Lata and Sushma but after the closure of the prosecution evidence, he invented a new story in his plea under Section 313, Cr.P.C. and pleaded that on 11-2-1984 at about 7 A.M. Shibbu had fired twice from the water channel (Khala) situated near his house causing injuries to Lata and Sushma. This plea, therefore, is totally false and a creature of afterthought.
15. PW 1 Lal Chand has deposed that on the fateful day, he was in his room along with his daughter Sarla Devi; that they heard the sound of a gun shot from the house of Balak Ram; that thereupon they reached Balak Ram's room running; that at that time, appellant's daughter Raksha was weeping standing outside the room and that she told them that her father had killed Sushma and Lata by firing from his gun. He has further deposed that thereafter he went inside appellant's room, where he found Lata and Sushma lying injured and bleeding; that Lata had died; while Sushma was breathing; that at that time, appellant was inside the room and that his another daughter, Kashmir Kaur and one boy whose name he could not remember, were standing there. He asked the appellant as to what had happened and that thereupon the latter admitted his guilt and stated that he had killed both the daughters and committed a sin and begged pardon. He has further deposed that by that time, Jarnail singh and Purkha Ram had also come there. He has stated that when he entered inside the room of the appellant, the latter had a twelve bore gun in his hand and that thereafter the latter had fled away. He has deposed that he went to the police station on foot and lodged an oral report, which was reduced into writing as FIR Ex. P. 1. In his cross-examination, he has reiterated that the appellant had admitted his guilt in the presence of Jarnail Singh and Purkha Ram. Lal Chand is an old person of about 66 years. He has specifically admitted that he did not remember the name of that boy, who was standing in appellant's room. No question has been put to him about identity of that boy. Therefore, simply because Lai Chand forgot the name of PW 2 Shibbu alias Tambi, whose presence has been well established by the testimony of PW 3 Sarla Devi and PW 5 Purkha Ram, by no stretch of imagination, it can be held that Shibbu was not present at the time of the alleged incident.
16. PW 3 Sarla Devi, aged 15-16 years, has fully corroborated the sworn testimony 7 of her father Lal Chand and stated that on the fateful day at about 8-8.30 AM she was cooking breads in her house; that she heard a sound of gun shot coming from the house of appellant and that thereupon she along with her father rushed to appellant's house running. She stated that at that time, Raksha was weeping in the courtyard of the appellant's house; that she saw appellant standing inside his room having a gun in his hand and that Lata and Sushma were lying injured in pool of blood inside the room and that Smt. Kashmir Kaur and Tambi were also standing there. She has deposed that when her father asked the appellant as to what had happened, the appellant told that he was a sinner and that he had killed both the girls. She has deposed that PW 2 Tambi also told them the appellant had killed those girls by firing a gun shot. She has further deposed that meanwhile Jarnail Singh and Purkha Ram also reached there and that the appellant had admitted his guilt and stated that a mistake had been committed by him and that he was a sinner and that thereafter the appellant ran away along with his gun. She has further deposed that at that time, Lata had already succumbed to her injuries while Sushma was alive and sobbing and that thereafter, Tambi, Kashmir Kaur and Jarnail Singh took those girls in a tractor to Anupgarh hospital. In her cross-examination, she has stated that she had come to Chak 20A about a year prior to the incident; that after coming to Chak 20A, her father had started cultivating his allotted land, which was earlier given to appellant and that the appellant had quarrelled with her father many a times about that land. She has further stated that her father Lal Chand had filed an application against the appellant and that thereupon the latter was arrested. She has deposed that the appellant used to tell that he would not permit her father to cultivate that land; that after taking that land from the appellant, her father had given 20 bighas of land for cultivation to Jarnail Singh on 'theka', while he himself was cultivating the remaining five bighas of land; that half of the 'theka' amount was taken by the appellant, while the remaining half amount was received by her father. She has deposed that when she reached appellant's house the appellant was standing at a distance of about 3, 4 ft. from the place where those two girls were lying injured. Even in her police statement Ex. D.2, she had informed that the appellant had told them that a mistake had been committed by him and that he was a sinner. We do not find any material improvement or inconsistency in the statement of this witness, who has valiantly withstood the test of cross-examination. PW 3 Sarla is the sister-in-law of the appellant. She has specifically refuted the suggestion that some unknown person had fired towards those girls and killed them. In our considered opinion, Sarla Devi is a reliable witness. She has corroborated the sworn testimony of PW 1 Lal Chand. She has also supported the statement of PW 2 Shibbu.
17. PW 5 Purkha Ram has deposed that at the time of the alleged occurrence, he had come to the house of his neighbour Jarnail Singh, which is situated at a distance of about 100 paces from the appellant's house; that he heard the sound of a gun shot coming from the house of the appellant and that thereupon he along with Jarnail Singh went to his house that there appellant's daughter Raksha Devi was weeping in the courtyard; that appellant was standing inside his room having a double barrel gun in his hand and that Smt. Kashmir Kaur, Lal Chand and Tambi were also present there. He has further deposed that he saw Lata and Sushma lying injured inside that room and that they were bleeding and that Lata had died, while Sushma had sustained injuries on her abdomen. He has specifically stated that at that time, PW 2 Tambi had told them that appellant Balak Ram had fired a gun shot on those girls; that thereupon they asked the appellant, who admitted his guilt and told them that a mistake had been committed by him and that he was a sinner and that thereafter the appellant ran away from his house along with his gun. He has also stated that thereafter Lal Chand went to the police station and that those injured girls were taken to the hospital by Tambi and Kashmir Kaur in a tractor and that he along with Jarnail Singh had aslo reached the hospital. He has deposed that police after the autopsy on Sushma and Lata vide names Ex. P. 3 and Ex. P. 4 and preparing their Panchayat Namas Ex. P. 5 and Ex. P. 6, had seized and sealed their blood stained clothes from their respective bodies vide seizure memos Ex. P. 7 and Ex. P. 8. He has further stated that after post mortem examination, the police had handed over the dead bodies of those girls to their mother Smt. Kashmir Kaur vide receipt Ex. P. 9. Had the appellant been present in the hospital and some other person had killed those girls then in natural course their dead bodies would have been handed-over to him. This fact also falsifies appellant's defence. He has further deposed that the Investigating Officer had inspected the site in his presence, prepared site plan Ex. P. 10 seized and sealed the blood stained earth and the controlled sample of the soil from appellant's room vide seizure memos Ex. P. 11 and Ex. P. 12. He has admitted that when he heard the sound of the gun shot, he was standing by the eastern side of Jarnail Singh's house; that when he reached appellant's house, Lal Chand was already there and that he along with Jarnail Singh had also entered appellant's room simultaneously where they had seen those girls lying injured. He has reiterated that the appellant had admitted his guilt in their presence and told that he had killed those girls and that thereafter had fled away from his house. He has stated that the inter se distance between the bodies of those girls was about one feet. He has refuted the suggestion that previously, the appellant had asked him not to go to the house of Lal Chand, who had a young daughter and that for that reason, he bore enmity with him. The age of PW Purkha Ram is about 45 years as mentioned in his statement. Hence, the suggestion put by the appellant to this witness on this count to show his alleged enmity towards him appears to us frivolous and without foundation. He has also categorically refuted the suggestion that he along with others has formed a groupp for dispossessing the appellant. He has also stoutly denied the suggestion put by the appellant that some unknown person had killed those two girls and that they have fabricated a false case against the appellant. To our mind, Purkha Ram is an independent and reliable witness.
18. It may be mentioned here that the appellant in his plea under Section 313, Cr.P.C. has stated that he had seen Shibbu alias Tambi firing two gun shots from a water channel situated near his house, which had caused injuries to Lata and Sushma, who were playing outside his house. But none of the prosecution witnesses has found any blood stains in the courtyard or outside the house of the appellant nor any empty cartridge was found there. When PW 2 Shibbu alias Tambi was examined, no such suggestion was put to him by the appellant nor such a suggestion was put to him by the appellant nor such a suggestion was out to PW 1 Lal Chand, PW 3 Sarla Devi and PW 5 Purkha Ram. It appears that after the prosecution evidence was closed, the appellant in his plea under S. 313, Cr.P.C. fabricated entirely a new story that Shibbu had fired twice and caused injuries to those girls. This story has not been corroborated even by his wife DW 2 Kashmir Kaur, who has deposed that on the day of the incident at about 8 AM, she was inside her kitchen; that she heard the sound of rifle shot; that Lata and Sushma were playing outside; that when she came there, she found Lata and Sushma had sustained gun shot injuries; that Lata had died while Sushma was alive and that thereupon she and her husband took those girls inside their room. She has also not stated that she had seen Shibbu alias Tambi firing two gun shots or that her father Lal Chand, sister Sarla Devi and PW 5 Purkha Ram had not come there. On the other hand, she has stated that her father Lal Chand had given the disputed land to them but thereafter he became dishonest and sold that land to other persons including Mahendra Singh and Narendra Singh etc. Kashmir Kaur is the wife of the appellant and in order to save him, she has deposed falsely. It is, therefore, evident that the defence plea taken by the appellant that he had seen Shibbu firing two shots is palpably false, which cannot be believed. In our considered opinion, PW 2 Shibbu is not a mere chance witness. His presence has been well estbalished by the testimony of PW 1 Lal Chand, PW 2 Sarla Devi and PW 5 Purkha Ram, who have fully corroborated his statement. In our considered opinion, PW2 Shibbu alias Tambi is a wholly reliable witness.
19. In State of Rajasthan v. Ram Narain, 1986 Cr LR (Raj) 62 it has been held that when there is a solitary eye-witness, his evidence has to be read with extra care and caution. We respectfully agree with this principle of appreciation of evidence and keeping in view the said principle, we have carefully scanned the statement of PW 2 Shibbu and to our mind, he is a credible and trustworthy witness.
20. The extra-judicial confession of the appellant which was made Immediately after the occurrence, has been well proved by the consistent testimony of PW 1 Lal Chand, PW 2 Shibbu alias Tambi, PW 3 Salra Devi and PW 5 Purkha Ram and the learned trial Judge has not committed any illegality in relying on this piece of evidence.
21. The statement of PW 2 Shibbu further finds corroboration by the medical evidence PW 8 Dr. Prem Kishan has proved the post mortem examination reports Ex. P. 17 and Ex. P. 18 of Lata and Sushma respectively. He has specifically stated that the gun shot injuries sustained by Sushma and Lata could be caused by one gun shot. He has stated that keeping in view the area of the gun shot wound sustained by Lata and Sushma, the gun shot was fired from a distance of 3-4 ft.
22. In the instant case, the recovery of 12 bore double barrel gun from the possession of the appellant is also not doubtful. It stands well proved by the prosecution evidence that soon after the occurrence, when Lal Chand, Sarla Devi and Purkha Ram reached on the spot, the appellant had fled away with his twelve bore licenced gun and that he could be arrested only on 9-12-84 at 2 p.m. vide arrest memo Ex. P-15. It is also well proved that at the time of his arrest, a twelve bore double barrel gun along with three live cartridges and the licence of the gun which was issued in favour of the appellant, were recovered from his possession by the Investigating Officer vide seizure memo Ex. P-16 and that the said rifle and the live cartridges were seized and sealed. This fact stands firmly established by the testimony of Motbir PW 7 Sheetal Singh and PW 11 Fakruddin, Investigating Officer. Since the appellant was absconding, he could not be arrested earlier. Hence, the delay in his arrest and recovery of the gun has been well explained by the prosecution and the same is not fatal.
23. PW 11 Fakruddin has deposed that after his arrest on 9-12-84, the appellant voluntarily made a disclosure statement to him at about 4 p.m., which was recorded vide information Ex. P-20, and that in pursuance thereof, the appellant got one empty twelve bore cartridge recovered, which he had concealed underneath the root of a 'Sarkanda' shrub near the culvert of the water channel situated near his house and the same was seized and sealed in the presence of Motbirs vide seizure memo Ex. P-13. He has also proved the site plan and memo thereof Ex. P-14 and Ex. P-21 respectively of the place from where that empty cartridge was recovered. PW 7 Sheetal Singh has fully corroborated the testimony of Fakruddin and proved this recovery. Therefore, the recovery of the empty cartridge is also not doubtful.
24. PW 9 Bhan Singh, Head Constable, who was the Incharge of the Malkhana, has deposed that all the sealed packets of this case were kept in his safe custody and that those were handed-over to PW 12 Prabhu Ram Head Constable for taking those to the Forensic Science Laboratory. PW 12 Prabhu Ram has deposed that he had taken all the sealed packets to State Forensic Science Laboratory, Jaipur, where he had deposited those packets intact.
25. In the case in hand, the report of the Assistant Director (Ballistic), State Forensic Science Laboratory, Rajasthan, Jaipur was tendered in evidence on 16-5-86 by the prosecution, which has been marked as Ex. P-22 by the trial Judge. This report is admissible in evidence u/ S. 293, Cr. P.C. Sec. 293, Cr.-P.C. contains a sub-rule of evidence making any document purporting to be a report under the hand of a Govt. Scientific expert upon any matter or thing duly submitted to him for examination and report admissible in evidence without calling such expert as a witness. Sec. 293 (2), Cr. P. C. lays down that the Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report. A careful perusal of the order sheets of the file of the trial Court reveals that the appellant did, not make any request for cross-examining; the ballistic expert. The Court also did not think it fit to summon and examine the ballistic expert.
26. In Hari Singh v. State, 1979 RCC 106, the report of the Finger Print Expert, which was admissible Under Section 293, Cr. P. C. was entered in evidence. The accused persons did not make any request to cross-examine the expert but later on challenged that report on the ground that the same was not duly proved by the expert and that they were deprived of their valuable right to cross-examine him. Interpreting the provisions of Sec. 293, Cr. P. C., it was held that if the accused wanted to cross-examine the expert, then they ought to have made such a request to the trial Court and since they have failed to avail the opportunity at the proper time, the report of the Director of the Finger Print Bureau could not be brushed aside on that count. In Dungar Singh's case (supra), the provisions of Sec. 293, Cr. P. C. were not taken into consideration at all. Therefore, in view of the law laid down in Hari Singh (supra) by this Court, Dungar Singh's case does not come to the rescue of the appellant.
27. The Ballistic Expert in his report Ex. P-22 has clearly opined that the recovered twelve bore gun from the possession of the appellant was a serviceable fire arm, that the same had been fired some time before it was received in the laboratory and that the recovered empty cartridge at the instance of the appellant had been fired from the right barrel of the said gun. He has also reported that the lead pellets, which were recovered from the bodies of deceased by the Dr. Prem Ratan (PW 8) and sent to the Forensic Science Laboratory in sealed packets, could have been used in a twelve bore cartridge and fired from the said twelve bore double barrel gun. Therefore, the recovery of the empty cartridge and the gun also connect the appellant with the crime.
28. From the prosecution evidence, it has been well established that the appellant used to threaten his father-in-law PW 1 Lal Chand, because the latter had demanded back and taken away the land, which was allotted to him as Pong Dam Oustee; that Lal Chand had filed an application Under Section 107, Cr.P.C. against the appellant wherein proceedings were taken in the Court of Executive Magistrate, Anupgarh and the appellant was arrested and detained in jail. He was released on or about 28-11-84. On the day of the incident, he was scolding his daughters since morning. Earlier, he had also lodged a report against Mahendra Singh, Narendra Singh, whereupon FIR No. 85 dt. 9-7-84 was registered at police station, Anupgarh for the offences Under Sections 376, 379, 146, 147, 148 and 149, I.P.C. That case was investigated by an officer of the rank of the Dy. S. P. and after investigation, final report No. 41 dt. 16-11-84 Ex. D-8 was submitted by the police as no such incident had occurred. It was recommended that since the appellant had deliberately filed that F.I.R. falsely in order to harass Mahendra Singh a complaint Under Section 182, IPC, which was separately prepared be filed against him in the Court of competent jurisdiction. The appellant had also threatened that he would kill his daughters and falsely implicate his enemies. In such circumstances, he fired a gun shot and killed his daughters. Even if this motive is taken to be unnatural and insufficient still then in view of the untainted and reliable testimony of eye-witness PW 2 Shibbu alias Tambi and convincing corroborative evidence of Lal Chand, Sarla Devi and Purkha Ram, the motive pales into insignificance.
29. In this case, the F.I.R. was promptly lodged in police station at 10.30 a.m. on 1-12-84. Simply because it reached the Magistrate on 3-12-84, it cannot be held that this F.I.R. is a post investigation document because even the appellant has admitted the presence of Lal Chand in the police station in the morning of 1-12-84. Hence in our considered opinion, the late despatch of the F.I.R. to the Magistrate does not create such an infirmity to discard and disbelieve the prosecution evidence.
30. No other point was pressed before us.
31. Hence from the above detailed analysis of the evidence adduced in this case and for the reasons mentioned above, we are of the firm opinion that the prosecution by adducing clear, cogent and convincing evidence has proved the offence Under Section 302, IPC and Sec. 27, Arms Act against the appellant to its hilt and the learned trial Judge has not committed any illegality either of fact or of law in convincing him for the said offences. The impugned judgment, therefore, does not warrant any interference.
32. In the result, we dismiss both these appeals.