JUDGMENT 1. - Harbans Singh, who stands convicted under sections 302, 307 Indian Penal Code and 27 Indian Arms Act has filed this appeal to challenge the correctness of the order of the Additional Sessions Judge, Ganganagar dated 27th August,1970 recording his conviction. 2. Harbans Singh was a constable at the police station, Anupgarh. The deceased Lalchand was another constable at the same police station and lived with his family in one of the quarters within the campus of the police station. Harbans Singh also lived in one of the quarters within the premises. Mst. Mukhtiaro lived with Harbans Singh as his wife. Some five or six months before the incident she quarrelled with Harbans Singh and left him. According to the prosecution some three days prior to the incident Mukhtiaro came with Roopram, s/o Lal Chand and started living in the quarter that was occupied by Lal Chand. 3. On 25.12.1968 Harbans Singh was on duty as a guard at the police station at 11 p.m. he was posted on duty and entrusted with a rifle and a bayonet and 20 cartridges with two pouches. He was supposed to remain on duty for 3 hours from 11 p.m. to 2 a.m. on 26.12.68. At about 1.30 during his duty hours he went to the house of Lal Chand and called out Lal Chand, who was sleeping inside the room (Kotha) with his wife. His two sons Roopram and Daulat Ram, Mukhtiaro and his daughter Bimla were also sleeping there. Mst. Jamna (PW. 1) wife of Lal Chand identified Harbans Singh by his voice. She awakened her husband and told him that Harbans Singh was calling him. Lal Chand opened the door of his Kotha and came out and asked Harbans Singh as to what he wanted Harbans Singh was armed with rifle and he armed a shot at him on account of which Lal Chand fell down. In the meanwhile the shutters of Kotha were closed. The bullet which struck Lal Chand passing through his body penetrated the shutters. He fired two more shots which also penetrated through the shutters and ultimately stuck in the wall of the Kotha. The intimates of Kotha escaped as they stood towards the side wall. Mst. Jamna after having realised that Harbans Singh had gone, came out of the Kotha she found her husband dead. He fired two more shots which also penetrated through the shutters and ultimately stuck in the wall of the Kotha. The intimates of Kotha escaped as they stood towards the side wall. Mst. Jamna after having realised that Harbans Singh had gone, came out of the Kotha she found her husband dead. She went to the house of Jagmal Singh (PW 4) another constable living in the premises, and informed him about the incident. She also told him that Harbans Singh is near about armed with the gun and he was likely to kill everyone of them. Jagmal Singh then having consulted one Satya Narain a literate constable of the police station took Mst. Jamna Devi to the police station and lodged an oral report about the incident. This report (Ex. P/1) was recorded by Bhagirath Singh, head constable incharge of the police station at that time. Shri Karan Singh station House Officer was out of station as he had gone to Rai Singh Nagar in connection with some official work. Bhagirath Singh then informed Shri Karan Singh by the telephone and took steps to guard the body of the deceased Lal Chand. Shri Karan Singh came to Anupgarh at about 9.15 A.M. on 26.12.68. He prepared the inquest report and the site plan. He collected blood stained earth and the blood stained clothes of the deceased. He also recovered besides other things three bullets from the Kotha. Two were complete and the one was in two pieces; they were found stuck in the western wall opposite the shutters. He also recovered three empty cartridges from Aangan of the house. He found the shutters of the Kotha with three holes in it. He seized the shutters and prepared the necessary memos of recovery. He sent the dead body of the deceased for post-mortem examination. Dr. Kamal Nayan Medical Officer Anupgarh Dispensary performed the autopsy and found the following injures on this body:- 1. One 5" circular inlet wound of gun shot 31/2" away and at 10' clock position to the right of umbelicus. 2. One 2" circular outlet wound of gun shot just below the inferior angle of left scapular. 4. On opening the body he found third right rib beneath the front wound and fourth left rib beneath back wound fractured. One 5" circular inlet wound of gun shot 31/2" away and at 10' clock position to the right of umbelicus. 2. One 2" circular outlet wound of gun shot just below the inferior angle of left scapular. 4. On opening the body he found third right rib beneath the front wound and fourth left rib beneath back wound fractured. Pleura in the course of bullet was found torn on the right and left side of mediastynum, left lung and at left parietal area of thorax, left lung torn and the left plueral cavity was full of blood. In the opinion of the doctor the cause of death was shock and internal bleeding into the left plueral cavity. The injuries were ante-mortem and were sufficient in the ordinary course of nature to cause death. 5. After a search the accused was arrested on 27.12.68. At the time of arrest he had the rifle which was entrusted to him and 16 live cartridges with him. They were seized vide Ex. P/17 and Ex. P/18. All the live cartridges were of the same marks as found on the bullets and empty cartridges recovered from the scene of occurrence. Shri Karan Singh S.H.O. who investigated the case packed and sealed the articles recovered from the accused & the spot. They were sent to Forensic Labortary for examination and according to the report of the ballistic expert it was found that the rifle was in working order and the empty cartridges were fired from the said rifle. After the investigation was complete. Harbans Singh was charge sheeted in the court of Sub Divisional Magistrate, Raisinghnagar who sent him to the court of sessions for trial. The case was entrusted to the Additional Sessions Judge, where his plea was recorded. He pleaded not guilty and claimed trial. On behalf of prosecution Smt. Jamna Devi (PW 1) wife of the deceased, Bimla Devi (PW 2) daughter of the deceased. Daulat Ram (PW 3) son the deceased were examined Jagmal Singh (PW 4) was also examined as one, who took Mst. Jamna Devi to the police station for lodging the report. Jai Singh (PW 5) is the neighbour of Lal Chand. He proved by his evidence that he heard three gun shot reports. But he did not go to the place of occurrence. Dr. Kamal Nayan (PW 7) was examined to prove the post mortem report Ex. Jamna Devi to the police station for lodging the report. Jai Singh (PW 5) is the neighbour of Lal Chand. He proved by his evidence that he heard three gun shot reports. But he did not go to the place of occurrence. Dr. Kamal Nayan (PW 7) was examined to prove the post mortem report Ex. P/12 Bhagirath Singh Head Constable Incharge of the police station on the day of the incident, was cited as PW 8 to establish that Harbans Singh was put on duty by him at 11 p.m. on 25.12.68 and he was entrusted with 303 rifle No. 47123, 20 cartridges and a bayonet with two pouches. Shri Karan Singh (PW 9) is the investigating officer. He proved the arrest of the accused, recovery of the rifle No. 47132 and 16 live cartridges from the accused at the time of his arrest. he also proved the memos that he prepared and the articles that he seized at the place of occurrence. Shri Jagdish Narain Ballistic Expert (PW 10)proved his report Ex. P/20. The accused in his statement under section 342, Criminal Procedure Code, while claiming himself to be innocent, admitted that Mst. Mukhtiaro lived with him in his quarter as his wife. He further stated that Lal Chand and Roopram had taken away his wife and had confined her in their quarter with the object of committing rape with her. He then stated that the Sub Inspector of Police Anupgarh had also illegal connections with his wife. He also pleaded that some other constables of the police station had committed this crime and he had no other concern with that. He, however, led no evidence in defence. The learned trail Judge accepted the prosecution case, held Harbans Singh guilty for the murder of Lal Chand. He also found that he attempted to cause murder of the other inmates of the house. He also concluded that he was in possession of the Government rifle 303 and he used the same illegally. He convicted the accused under sections 302, 307 Indian Penal Code and section 27 of the Indian Arms Act. For murder he sentenced him to imprisonment for life, for attempt to murder, he sentenced him to five years rigorous imprisonment & for the offence under section 27 Indian Arms Act the sentence passed was to years rigorous imprisonment. 6. He convicted the accused under sections 302, 307 Indian Penal Code and section 27 of the Indian Arms Act. For murder he sentenced him to imprisonment for life, for attempt to murder, he sentenced him to five years rigorous imprisonment & for the offence under section 27 Indian Arms Act the sentence passed was to years rigorous imprisonment. 6. Learned counsel appearing on behalf of the appellant argued that there is no evidence to establish that Harbans Singh was the author of the crime. He took us through the evidence. It is borne out from the evidence of Bhagirath Singh (PW 8) that Harbans Singh was posted on duty as guard at the police station on 25.12.68. He was to remain on duty from 11 p.m. to 2 a.m. of the next day. From the previous guard Shri Banwari Lal, Harbans Singh took over the rifle 303 No. 47132, 20 live cartridges with two pouches and one bayonet. Ex. P/13 is a copy of the entry in the police diary dated 25.12.68. The entry is signed by him. The fact that the accused had 303 rifle with live cartridges while on duty is well established. In his statement under section 342 Cr.P.C. he does not repudiate this averment of the prosecution. He only stated that he did not know. He was arrested on 27.12.68 by Shri Karan Singh, SHO, Anupgarh. The same rifle was recovered from his person and he was also found to be in possession of 16 live cartridges out of 20 entrusted to him Ex. P/17 and Ex. P/18 are to that effect. One empty cartridge was also found in the chamber of the rifle. The bayonet and two pouches were already seized from his house. We find from Ex.P/8 that the three empty cartridges were recovered from the place of occurrence. These three empty cartridges plus one which was found in the chamber of the rifle and the 16 live cartridges makes the total of 20 cartridges. The empty cartridges found from the place of occurrence, bear the same marking which has been found on the live cartridges. Then three bullets were also recovered vide Ex. P/7 from the walls of the Kotha. From these facts it is difficult for the learned counsel to dislodge us from the conclusion that the accused. Harbans Singh had rifle Ex. The empty cartridges found from the place of occurrence, bear the same marking which has been found on the live cartridges. Then three bullets were also recovered vide Ex. P/7 from the walls of the Kotha. From these facts it is difficult for the learned counsel to dislodge us from the conclusion that the accused. Harbans Singh had rifle Ex. 13 and cartridges with him and three of them were used at the house of Lal Chand. 7. Mst. Jamna Devi wife of the deceased was in the Kotha of Lal Chand. When Harbans Singh called Lal Chand, she immediately recognised his voice and awakened her husband and told him that Harbans Singh is calling him outside. It is not disputed that Harbans Singh lived for some time in the neighbourhood of Lal Chand and he was a constable at the same police station. It was only for some time proceeding the incident that Harbans Singh shifted to another quarter in the same premises near the new police station, and the quarter left by Harbans Singh was subsequently occupied by Jai Singh (PW 5) Jamna Devi and the accused were thus quite known to each other. I was not difficult for her to have recognised him by his voice. In such a situation it shall not be incorrect to hold that Mst. Jamna Devi rightly identified Harbans Singh who went to her house and from the Aangan of the house he called out Lal Chand to come out. Jamna Devi then heard gun shot reports. She described how the bullets came inside penetrating through the doors and some of them stuck to the walls and one of them passed near the cot on which Roop Ram was sleeping and making a hole in her shoe struck into the wall. Soon after the incident Jamna Devi went to Jagmal Singh (PW 4) and informed him about the incident and she lodged the report Ex. P/1 at 2.30 a.m. Jagmal Singh supports her statement. Bimla Devi (PW 2) was also in the Kotha. She stated that her father died on account of gun shot injuries. He went outside the Kotha and he was shot Harbans Singh fired two more shots. She concealed her self towards the side wall. Daulat Ram, the second son of Lal Chand also supports this version. Bimla Devi (PW 2) was also in the Kotha. She stated that her father died on account of gun shot injuries. He went outside the Kotha and he was shot Harbans Singh fired two more shots. She concealed her self towards the side wall. Daulat Ram, the second son of Lal Chand also supports this version. The statement of these witnesses stand fully corroborated by the recoveries of the bullets and the empty cartridges from the house. The three holes in the shutters of the Kotha of Lal Chand's house further lends assurance to their testimony. 8. Some discrepancy has been pointed out when Jamna Devi stated that besides Harbans Singh, Bachan Singh and Baldev Singh were also there. Learned counsel tried to create a doubt that one of them might have fired but in our opinion there is no basis for this contention. Mst. Jamna Devi in the latter part of her statement clarified that they were not there at the time of the incident. According to her Jagir Singh, Bachansingh and Baldev Singh belaboured her son Daulat Ram on the previous evening, when he had gone out. She also stated that they were arrested but really speaking it was in connection with some different transaction. Before the learned trial judge as well as similar suggestion was made but it was not accepted. We agree with him and we hold that the testimony of Mst. Jamna Devi does not suffer from any infirmity. Jai Singh (PW 5) lends assurance to the depositions made by Jamna Devi, Bimla Devi and Daulat Ram that three shots were fired in their house from the 'Aangan'. 9. Another submission that has been made on behalf of the appellant is that incriminating articles sent to the ballistic expert for examination, were delayed without any reason. It is true that empty cartridges were recovered on 25.12.68. The rifle itself and the other live cartridges and one empty cartridge in the chamber of the rifle were recovered on 27.12.68, whereas they were sent for examination by the Superintendent of Police on 21.2.69. No explanation has been offered by the prosecution as to what occasioned this delay. We cannot but depreciate the delay. But on the facts and circumstances of the case we are not prepared to throw the prosecution case on this ground. No explanation has been offered by the prosecution as to what occasioned this delay. We cannot but depreciate the delay. But on the facts and circumstances of the case we are not prepared to throw the prosecution case on this ground. There is convincing evidence apart from the opinion of the expert that accused Harbans Singh had the 303 rifle No. 47132 and 20 cartridges at the time of incident. He went to the house of Lal Chand and called out Lal Chand to come out. According to his own statement Mst. Mukhtiaro, who once lived with him as his wife was confined in the Kotha of Lal Chand. The recovery of bullets & the empty cartridges at the place of occurrence further establishes that the rifle was fired at the house of Lal chand. Empty cartridges & bullets bore similar markings as found on the live cartridges. Even if, we ignore the report of the ballistic expert we are fully convinced that Harbans Singh is the one who committed the crime. He had also the motive as he thought that Mst. Mukhtiaro was being detained illegally by Lal Chand and his son Roopram, at their house. In our opinion the finding arrived at by the learned trial Judge that Harbans Singh committed the murder of Lal Chand and also attempted to commit the murder of Lal Chand the other inmates of the house is right and we uphold the same. 10. We find no force in this appeal and dismiss the same. *******