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2001 DIGILAW 928 (RAJ)

Jagdish Prasad v. State of Rajasthan

2001-05-22

KHEM CHAND SHARMA, SHIV KUMAR SHARMA

body2001
Honble SHARMA, J.–As many as 19 accused persons including the appellants Jagdish Prasad and Banwari son of Ram Karan were indicted before the learned Additional Sessions Judge No. 3 Kota for the murder of Banwari son of Dev lal Gujar in Sessions Case No. 56 of 1993. Accused appellants Jagdish Prasad and Banwari son of Ram Karan were found guilty, convicted and sentenced as under- Jagdish Prasad u/Sec. 302 IPC Imprisonment for life and fine of Rs. 1000/- u/S. 5/27 Indian Arms Act One Year RI and fine of Rs. 100/- (in default to further undergo 3 months SI) Banwari S/o Ram Karan u/S. 307 IPC Four years RI and fine of Rs. 100/- (in default to further undergo 3 months SI) Being aggrieved by the judgment dated August 8, 1996 accused jagdish Prasad and Banwari son of Ram Karan have preferred instant Criminal Appeal No. 476/96. Learned trial judge vide the said judgment acquitted co-accused Ram Swaroop, Laxmi Narain, Roop Narain, Om Prakash, Radhey Shyam, Badri Lal, Chandra Prakash, Ramesh, Jawahar lal, Nandji, Satya Narayan, Shrilal, Klanhaiya Lal, Subhash, Bhanwarji, Murli, Ram Karan and Uttam. The State of Rajasthan assailed the judgment of acquittal by filling criminal leave to appeal. This Court vide order dated September 16, 1997 granted leave only to the extent of findings in respect of co-accused Ram Swaroop, Banwari Lal and Jagdish and directed to consolidate both the appeals. (2). The prosecution case as made out at the trial is as under- Parcha Bayan (Ex.P.1) of Shankar Lal (PW.2) was recorded by ASI Jagdish Lal (PW.22) on February 23, 1993 at 11.40 a.m. in the M.B.S. Hospital Kota, wherein Shankar Lal stated that on February 22, in the evening when he and Ramesh Gujar had gone to his field, accused Jagdish met them having axe in his hand. He abused them and went back to the village. After some time he alongwith Banwari son of Ram Karan, Subhash, Uttam and Roop Narain came there around with sticks and Gandasas. Jagdish was armed with Double Barrel Gun. Seeing all of them, Shankar Lal and Ramesh were frightened and came back to their village and narrated the incident to their kith and kins. He could not lodge the report in the night. Jagdish was armed with Double Barrel Gun. Seeing all of them, Shankar Lal and Ramesh were frightened and came back to their village and narrated the incident to their kith and kins. He could not lodge the report in the night. Shanker Lal in his Parcha Bayan further averred that on February 23, 1993 around 7 a.m. when he came out of his house in order to go to the Police Station, Jagdish threw him a challenge to settle the score. In the meanwhile as many as 18 persons named in Parcha Bayan gathered from the neighbourhood. Jagdish was armed with Double Barrel Gun whereas Ram Swaroop was having Single Barrel Gun, others were armed with Dhariyas and Gandasis. All of them gave threatening to Kill Shankar Lal and his colleagues. Hearing Shankar Lals hue and cry, Banwari son of Deva (since deceased) Ramesh and Chanda Lal came rushing. Jagdish then said, `wait let me terminate you. He aimed DBBL Gun and shot at Banwari s/o Deva. The fire hit at his chest and Banwari fell down. Thereafter Banwari son of Ram Karan snatched the Gun from Jagdish and opened fire at Ramesh which hit at his stomach. Ram Swaroop also opened fire with his gun, that hit Ramesh and the shoe of Chanda. Other persons had pelted stones. This incident had been witnessed by Dev Krishna, Bhanwar lal, Keshri Lal and many other villagers. Banwari son of Deva and Ramesh were taken to Hospital at Kota, where Banwari died and Ramesh was admitted. (3). On the basis of Parcha Bayan of Shanker Lal, Police Station Sultanpur registered FIR No. 17/93 (Ex.P.20) for the offences under sections 302,307,147,148 and 149 IPC and investigation commenced. State was inspected vide memo Ex.D.13. Dead-body or Banwari was subjected to post mortem. Report of post mortem is Ex. P.39. Statements of the witnesses u/Sec.161 Cr.P.C. were recorded and the accused were arrested. On the basis of information supplied by the appellant Jagdish a Double Barrel Gun was recovered vide memo Ex.P.9. The Injury report of Ramesh is Ex.P.40. Reports of Forensic Science Laboratory are Ex.P.80 and Ex. P.81. On conclusion of the investigation the charge sheet was filed against 19 accused persons including the appellants Jagdish and Banwari. (4). In due course the case cam up for trial before the learned Additional Sessions Judge No. 3 Kota. The Injury report of Ramesh is Ex.P.40. Reports of Forensic Science Laboratory are Ex.P.80 and Ex. P.81. On conclusion of the investigation the charge sheet was filed against 19 accused persons including the appellants Jagdish and Banwari. (4). In due course the case cam up for trial before the learned Additional Sessions Judge No. 3 Kota. The trial court framed charges under Sections 148, 302, 302/149, 307/149 IPC and 5/27 of the Indian Arms Act against appellant Jagdish and u/Sec. 148,307, 307/149 and 302/149 IPC against Banwari. The accused denied the charges and claimed trial. The prosecution examined as many as 22 witnesses thereafter explanation of the accused u/Sec. 313 Cr.P.C. was recorded. The accused denied the allegations and claimed innocence. No evidence in defence was led. On hearing the final submissions, the learned trial judge convicted the accused Jagdish and Banwari and acquitted other 17 accused persons as indicated hereinabove. (5). Mr. A.K. Gupta, learned counsel for the accused appellants canvassed that when the prosecution evidence was disbelieved as against the 17 co-accused persons, the accused appellants could not have been convicted on the same set of evidence. According to learned counsel the prosecution has not placed true version of the occurrence. It has suppressed the information received at first point of time in consequence of which Parcha Bayan of Shankar Lal was recorded. Banwari sustained two fire arm injuries, one on the chest and other on the shoulder. The said injuries have been caused by the different fire arms because one injury is of bullet and the other is that of pallets. Besides this, the prosecution case is that fire arm was used by Banwari from a short distance but from the medical report the injury sustained by the deceased could not be caused from the short distance. It is further contended that delay in sending FIR to the Magistrate is also fatal. It was anti dated and anti timed. State plan was not prepared properly. Recovery of weapon of offence was not proved. There were material contradictions in the statements of witnesses and their presence at the spot was not natural. Place of occurrence as shown in the site plan could not be proved by the witnesses. There was unreasonable delay in recording the statements of witnesses by the police, though they were available in the village. There were material contradictions in the statements of witnesses and their presence at the spot was not natural. Place of occurrence as shown in the site plan could not be proved by the witnesses. There was unreasonable delay in recording the statements of witnesses by the police, though they were available in the village. The prosecution failed to establish the motive behind the murder of Banwari. The witnesses did not say from where the fire was shot. Presence of independent witnesses Bhanwar Lal, Deepa Gujar and Ganesh Kumar was shown but they were not produced. Statement of injured eye witness Ramesh was recorded on February 26, 1993 and explanation for three days delay was not offered. It is further urged by learned counsel that in the statements recorded u/Sec. 313 Cr.P.C. circumstances as to from where the fire opened and at which place it hit the deceased, were not put. Learned counsel placed reliance on various judicial pronouncement, that shall be dealt with at appropriate juncture. (6). Per contra Mr. S.C. Purohit, learned Public Prosecutor and Mr. V.R. Bajwa, learned counsel for the complainant supported the conviction and urged that the eye witnesses are natural and truthful witnesses. Eye witness Ramesh sustained injury at the time of the incident and his presence cannot be doubted. The infirmities shown by the learned counsel for the accused are not material. All the circumstances were put to the accused while recording their statements u/Sec. 313 Cr.P.C. Recovery of DBBL Gun at the instance of accused Jagdish stood proved. Inconsistency between the ocular and medical evidence is not material. FIR was lodged promptly. In view of the clear evidence that Banwari died as a result of gunshot injuries, all technical arguments raised on behalf of the accused loose significance. Various authorities that are relied upon shall be discussed as and when required. (7). After having been taken through the evidence on record we have come to the conclusion that the superstructure of the prosecution case is basis on central evidence consisting of seven eye witnesses namely Shanker Lal (PW.2), Dev Kishan (PW.3), Ramesh Chand (PW.4) Bhanwar Lal (PW.5) Chanda Lal (PW.6) Kastoora (PW.7) and Ramesh Gujar (PW.9). This evidence is sought to be corroborated by Medical jurist Dr. R.K. Sharma (PW.18) and investigating officer Guru Bachan Singh (PW.20) who recovered DBBL Gun at the instance of accused Jagdish. (8). This evidence is sought to be corroborated by Medical jurist Dr. R.K. Sharma (PW.18) and investigating officer Guru Bachan Singh (PW.20) who recovered DBBL Gun at the instance of accused Jagdish. (8). A look at the Post Mortem report (Ex.P.39) demonstrates that cause of death of deceased Banwari was shock as a result of the anti mortem fire arm injury to Heart. According to Dr. R.K. Sharma (PW.18) following antimortem injuries were found on the dead body of Banwari- (i) Fire arm would (Would of Entry) 1/2"x1/2"x Shoulder Rt. deep Margin Inverted going downwards and posteriorly. Shoulder Anteriorly Pallet is found lodged in subcutaneous tissue posterior wall of shoulder. Pallet recovered and sealed and handed over to police., +, + (ii) Fire Arm would (would of Entry) Margin inverted 1/2"x1/2"x CD, on chest Antery at the sternum Going downwards and posteriorly perforating the sternum, going downwards and posteriorly perforating the Right Ventrical of Heart going down wards and posteriorly. Pallet found lodged in subcutaneous tissue posteriorly wall of the chest, Pallet recovered and and sealed, handed over to police. (9). Ex.P.40 is the injury report of Ramesh Chand son of Suraj Mal (PW.4). According to Dr.R.K. Sharma (pW.18) following two injuries were found on the person of Ramesh Chand- (i) Fire arm would (Would of Entry) 1/2"x1/2"x threw and threw on Rt. Hipocondrium region (ii) Gun Shot would (wound of Exit) 1/4"x1/2"x threw and threw on Back Rt. side middle. Both the injuries were dangerous to life. (10). Gurubachan Singh I.O. (PW.20) deposed that on the basis of information supplied by the accused jagdish u/Sec. 27 Evidence Act. (Ex.P.70) he recovered DBBL Gun at the instance of accused Jagdish vide memo Ex.P.9 and sealed it. Blood stained clothes of Ramesh Chand and deceased Banwari were recorded and sealed vide memos Ex. P.4. and Ex.P.5. One pallet and flat bullet were recovered from the House of Chanda Lal and sealed vide memo Ex.P.6. Then sealed packets were handed over to FSL Jaipur and the receipts of FSL Jaipur are Ex.P21 and Ex. P.22. Copies of Malkhana Register showing the entries of packets kept in Malkhana duly sealed are Ex.44 A, Ex. 45 A, Ex. 46 A, Ex. 47 A and Ex. 48 A. Three plastic wads were recovered and sealed vide memo Ex.P.76. Soil soaked with blood recovered from the place of occurrence was sealed vide memo Ex.P.77. P.22. Copies of Malkhana Register showing the entries of packets kept in Malkhana duly sealed are Ex.44 A, Ex. 45 A, Ex. 46 A, Ex. 47 A and Ex. 48 A. Three plastic wads were recovered and sealed vide memo Ex.P.76. Soil soaked with blood recovered from the place of occurrence was sealed vide memo Ex.P.77. Original licence of DBBL gun (Ex.P.78) in the name of accused jagdish was recovered and sealed. (11). A perusal of FSL Report Ex. P.80 goes to show that three plastic wads con- tained in packet `C, two lead shots contained in packet `E and one piece of lead slug and four lead shots contained in packet `J normally used in 12 bore ammunition and could have been fired from 12 bore ammunition and could have been fired from 12 bore DBBL Gun (W 1) contained in packet `H. The DBBL Gun contained in packet `H was serviceable fire arm. The examination of the barrels residues indicated that 12 bore DBBL Gun had been fired. However, the definite time of its last fire could not be ascertained. (12). Ex.P. 81 is the FSL Report in regard to the holes found on the clothes of injured Ramesh Chand and deceased Banwari. It reads as under - ``Holes (Marked `P) present on exhibits (S/1 to S/6) appear to have been caused by lead shots as lead metal was detected on the periphery of these holes. (13). Let us now analyse the testimony of the eye witnesses. Supporting his earlier version made to the police in his `Parcha Bayan Shanker Lal (PW.2) in his deposition repeated the incident occurred a day before and narrated as to how accused jagdish armed with DBBL gun and other accused came and shot at Banwari Gujar. He also stated that accused Banwari Dhakar snatched the Gun from the hands of Jagdish and shot at Ramesh. Banwari Gujar sustained wounds on chest, stomach and shoulder and he feel down. Ramesh received wounds on stomach and arm pit. All the eye witnesses almost narrated the version deposed by Shanker Lal and were subjected to very lengthy cross examination. Mr. Banwari Gujar sustained wounds on chest, stomach and shoulder and he feel down. Ramesh received wounds on stomach and arm pit. All the eye witnesses almost narrated the version deposed by Shanker Lal and were subjected to very lengthy cross examination. Mr. A.K. Gupta, learned counsel of Shanker lal (PW.2), Dev Kishan (PW.3), Bhanwar lal (PW.5), Chanda Lal (PW.6), Kastoora (PW.7) and Ramesh Gujar (PW.9) at the place of occurrence is not natural as they did not sustain any injury though according to their statements they were standing very near to the deceased, if that was so a fire from DBBL Gun ought to have hit all of them. Though we do not agree with the submission yet we straightaway proceed to consider the testimony of injured eye witness Ramesh Chand (PW.4) who deposed that around 7 and 8 a.m. he and Dev Kishan were taking tea at his house. They came out of the house after hearing loud voices. Bhanwar Gujar also came out from the adjacent house. At the same time Banwari Gujar (deceased) also reached near the door of their house. Shanker Gujars house was the centre of quarrel from where loud voices were spreading. He saw 19 accused assembled there. Jagdish and Ram Swaroop were armed with guns, others were having Dhariyas, Gandasis and Lathies. The accused were giving threat to Shanker and preventing him from instituting the report. Apprehending serious quarrel the brother of Ramesh asked to intervene and he, Dev Kishan, Bhanwar Gujar and Banwari Gujar reached near Dipa Gujars house. Seeing them coming, all the accused shouted to kill one or two of them and to settle the score once for all. Jagdish aimed the gun and opened fire that hit Banwari Gujar. When they protested, Banwari Dhakar snatched the gun from Jagdish and opened fire that hit just below of his right armpit, stomach and waist and fell down. We have gone through the lengthy cross examination of Ramesh but nothing that favours the accused could be elicited from it. Learned counsel for the accused appellants contended that there are material contradictions in the statement of Ramesh and he is not a reliable witness but we are not impressed by this argument. The discrepancies referred by learned counsel in our opinion are minor, insignificant, natural and not material. Learned counsel for the accused appellants contended that there are material contradictions in the statement of Ramesh and he is not a reliable witness but we are not impressed by this argument. The discrepancies referred by learned counsel in our opinion are minor, insignificant, natural and not material. Due to normal errors of memory on account of lapse of time, there are always normal discrepancies in the depositions of witnesses however honest and truthful they may be. Such discrepancies are always expected of a normal person. (14). All the eye witnesses attributed the fire arm injuries sustained by the deceased Banwari Gujar to the accused appellant Jagdish. We have considered the evidence from the point of view of trustworthiness and we are satisfied that they eye witnesses had not spoken untruth and their testimony had not been polluted. (15). It is next contended by Mr. A.K. Gupta, learned counsel for the accused appellants that circumstances as to from where fire was opened and at which place it hit the deceased were not put to the accused while they were examined u/Sec. 313 Cr.P.C. as such these circumstances cannot be used against them. In Hate Singh Bhagat Singh vs. State of Madhya Bharat (1), their Lordships of the Supreme Court held that any circumstances in respect of which an accused was not examine u/Sec. 342 Cr.P.C. (New Sec. 313 Cr.P.C.) cannot be used against him. Decision of Hate Singh Bhagat Singh (supra) was followed in Shamu Balu Chaugule vs. State of Maharastra (2), Harijan Megha Jesha vs. State of Gujrat (3) and Sharad Birdhichand Sarda vs. State of Maharastra (4). In order the appreciate the submissions we have scanned the statements of accused appellants Jagdish and Banwari recorded u/Sec. 313 Cr.P.C. Examination of each of the accused consists of 25 pages. Both the accused Jagdish and Banwari were examined in respect of statements of the prosecution witnesses and all the circumstances were put to them. Thus we find no force in the submissions of Mr. Gupta learned counsel. (16). It is further contended by Mr. A.K. Gupta, learned counsel that the police suppressed the information received at first point of time in consequence of which Parcha Bayan of Shankar Lal was recorded. The statement of Shanker Lal appears to have been made with a premeditated core mind and has been anti-dated and anti-timed. Gupta learned counsel. (16). It is further contended by Mr. A.K. Gupta, learned counsel that the police suppressed the information received at first point of time in consequence of which Parcha Bayan of Shankar Lal was recorded. The statement of Shanker Lal appears to have been made with a premeditated core mind and has been anti-dated and anti-timed. Therefore the FIR based on the Parcha Bayan of Shanker Lal should be viewed with suspicion. Reliance is placed on Rajmi Surjya vs. State of Maharastra (5), Surjan vs. State of Rajasthan (6) and Sahib Singh vs. State of Haryana (7). Mr. A.K. Gupta then urged that the prosecution has failed to establish that the shot was fired from the place shown in the site plan. In the site plan place of gun shot neither shown nor proved and this creates doubt in the prosecution story. Reliance is placed on Hukumat Rai vs. State of Rajasthan (8) and Bhawani and Another vs. State of Rajasthan (9). (17). Placing reliance on Kartar Singh vs. The State (10) Chiranji vs. State of Rajasthan (11), Ram Veer vs. State of Rajasthan (12), Ram narain Singh vs. State of Punjab (13), Hardip Singh vs. State of Punjab (14) and Awadesh vs. State of M.P. (15), and attempt has been made to establish that the eye witnesses had not seen the incident as their testimony is not consistent with the opinion of Dr. R.K. Sharma, the medical expert. Dr. R.K. Sharma (PW.18) in his cross examination categorically stated that no blackening was present around the injury thus the possibility that the fire arm was used from a distance of more than 4 feet can not be excluded whereas from the ocular testimony the fire arm injury was caused from a very close range. The discrepancies between medical evidence and the ocular evidence renders the prosecution case doubtful. (18). ``In the case of shot guns, said Taylor in his ``Principles and Practice of Medical Jurisprudence, the distance from which the weapon was fired may be deduced from the amount of scattering of the charge. At about a yard, the whole of the charge enters in a mass, producing a round hole about the size of the bore of the weapon, with ragged edges and surrounded by a zone of blackening and burning. At about a yard, the whole of the charge enters in a mass, producing a round hole about the size of the bore of the weapon, with ragged edges and surrounded by a zone of blackening and burning. As a rule, there is a trace of burning beyond a yard, but traces of power marks may be found upto four yards or more. The shot begins to disperse in an ordinary cylindrical barrel at about three yards at which distance the bulk of the shot enters in one mass and leaves a hole with a few isolated shots a round it. (19). John Glaister in his `Principles of Medical Jurisprudence says that ``After firing, the pellets disperse soon after their exit from the barrel and this dispersion increases with the range. This means that the greater the distance between the target and the person firing the gun, the larger would be the area of dispersion of pellets. (20). In order to deduce the distance from which the DBBL Gun was fired, we have scanned the site plan (Ex.D.13) wherein the House of Dipa Gujar has been shown. There is a place shown by mark `A where deceased Banwari was siting. At this place blood was found. `O is the place near the House of Shanker Gujar from where the Gun was fired, aimed at Banwari (deceased) who was sitting at place `A. `P is the place where Ramesh (PW.4) sustained injury. `D is the wall of the house of Bhanwar Lal Gujar on which nine fresh marks of pellets were seen. The distance between the places shown in the site plan has not been scaled by the investigating officer and we are unable to deduce the actual distance from which the Gun was fired. However, it is established from the site plan that occurrence had been taken place near the vicinity of Shankars (PW.2) house and house of Bhanwar lal (PW.5) has also been shown in the site plan. Honble Supreme Court in Pattad Amarappa vs. State of Karnataka (16), indicated in para 26 thus- ``..... As the occurrence had taken place near the house of PW.6, they must have necessarily witnessed the occurrence. It is not as it they were residing elsewhere and had come upon the scene of occurrence by chance. Such being the case, their evidence cannot be stigmatised as interested testimony. As the occurrence had taken place near the house of PW.6, they must have necessarily witnessed the occurrence. It is not as it they were residing elsewhere and had come upon the scene of occurrence by chance. Such being the case, their evidence cannot be stigmatised as interested testimony. As regards the nonexamination of other residents of the locality, we have no evidence that any of them was present at the time of occurrence and had witnessed the attack on the deceased. (21). The angle chosen by the accused appellants counsel to attack the prosecution case with reference to the Site plan (Ex.D.13) is also devoid of merit. There may be discrepancies in the statements of prosecution witnesses but on the basis of that it cannot be said that the occurrence did not take place. When the accused were making assessed indulging in the assault or the victim to be stationary at a particular point. In Ram Swaroop vs. State of U.P. (17), deceased died as a result of gun shot firing and witnesses assaulted. Witnesses deposed that they were assaulted. Witnesses deposed that they were assaulted on the north side of a chabutra which was a small plat form 2-3 paces in width and 3-4 paces in length but in site plan place shown as Point 3 was on east of chabutra. Despite this discrepancy it was held by the Honble Supreme Court that it cannot be said that the occurrence did not take place there. Relying on oral evidence it was held that the deceased was shout at towards the southwest of the Chabutra and the witnesses were injured towards the north of the Chabutra. It was observed by their Lordships of the Supreme Court that ``High Court rightly took the view that as the assault was going on it would not be possible for the persons indulging in the assault to be stationary at a particular point. (22). Our attention has been drawn by the learned counsel for the accused appellants to the various lapse of the investigation but on this ground we are unable to reject the testimony of the eye witnesses as we find element of truth in their testimony. (22). Our attention has been drawn by the learned counsel for the accused appellants to the various lapse of the investigation but on this ground we are unable to reject the testimony of the eye witnesses as we find element of truth in their testimony. Honble Supreme Court in State of U.P. vs. Sikandar Ali (18), observed in para 11 thus - ``Thus court has repeatedly cautioned that the lapse of the investigation should not prevent the court from accepting the eye witnesses evidence if it is otherwise truthful. (23). So far as the argument in regard to delay in examining the witnesses in concerned it is also devoid of merit as no unfair practice on the part of investigating agency for concocting the false case has brought to our notice. Honble Supreme Court in Ranbir vs. State of Punjab (19), indicated that- ``The question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got up witness to falsely support the prosecution case. (24). In Lakhan Sao vs. The State of Bihar (20), the Honble Supreme Court believing the direct evidence held as under- ``The non-recovery of the pistol or spin cartridge does not detract from the case of the prosecution where the direct evidence is acceptable. (25). As regards the arguments that the FIR was antedated and antitimed is concerned we find no force in it. The occurrence had taken place around 7 a.m. on February 23, 1993 at village Chandrawala which is very far away from Kota. Banwari (deceased) and injured Ramesh were than by Shanker in Tractor to M.B.S. Hospital Kota where Banwari died and Ramesh got admitted. Parcha Bayan of Shankar was recorded at 11.40 a.m. at the M.B.S. Hospital Kota. Regarding the evidence is not only natural and truthful but also consistent. After witnessing the gruesome attack on Banwari and Ramesh he had made his statement to the police which was registered as FIR. The report is fully in conformity with the evidence given by him before the trial judge. Thus we cannot entertain doubt about the truthfulness of the FIR. (26). After witnessing the gruesome attack on Banwari and Ramesh he had made his statement to the police which was registered as FIR. The report is fully in conformity with the evidence given by him before the trial judge. Thus we cannot entertain doubt about the truthfulness of the FIR. (26). Prosecution is thus able to establish that Banwari Gujar died as a result of the Gun shot injuries and all the eye witnesses attributed Gun shot injuries to the accused appellant Jagdish. As already stated the eye witnesses had not spoken untruth and their testimony has not been polluted. The arguments raised by Mr. A.K. Gupta with the help of post mortem examination of the deceased did not appeal to us in view of ratio indicated in Kehar Singh vs. State (Delhi Administration) (21). It was held by their Lordships in para 42 thus- ``... There is no doubt that she died as a result of the gunshot injuries which were inflicted by Beant Singh and Satwant Singh, one who shot from his service revolver and other from the carbine. In view of such clear evidence about the cause of death, the post mortem examination loses all its significance. It becomes important only in cases where the cause of death is to be established and is a matter of controversy. (27). As we have already noticed from the FSL report that DBBL Gun recovered at the instance of the accused appellant Jagdish had been fired and holes found on the clothes of the deceased and the injured Ramesh had been caused by the lead shots as lead metal was detected on they periphery of the holes. The seals of the packets remained intact throughout. The prosecution has proved the charges under sections 302 IPC and 6/27 of the Indian Arms Act against the accused appellant Jagdish and u/Sec. 307 IPC against the accused appellant Banwari son of Ram Karan beyond reasonable doubt and the have been rightly convicted by the learned trial judge. (28). That takes us to the appeal preferred by the State of Rajasthan against Ram Swaroop, Banwari Lal and Jagdish. In so far as Jagdish and Banwari are concerned we have confirmed the findings of the learned trial Judge and in view of over all circumstances of the case and the evidence collected against Banwari we are unable to pursuade ourselves to convict him u/Sec. 302/149 IPC. In so far as Jagdish and Banwari are concerned we have confirmed the findings of the learned trial Judge and in view of over all circumstances of the case and the evidence collected against Banwari we are unable to pursuade ourselves to convict him u/Sec. 302/149 IPC. He did not share common intention to kill Banwari Gujar. The allegation against him was that the snatched the gun from the hands of Jagdish and shot at Ramesh who sustained injuries that were dangerous to life. We are of the opinion that accused Banwari was rightly convicted u/Sec. 307 IPC. Against accused respondent Ram Swaroop that allegation was that he was having Singh Barrel Gun from which he opened fire that hit Ramesh and shoe of Chandra. Ramesh did not sustain any injury from the alleged fire. Examination of shoe by the FSL did support the prosecution version to some extent but the learned trial Judge did not find the prosecution evidence sufficient to prove guilt against accused respondent Ram Swaroop and gave him benefit of doubt. On a close examination of the prosecution evidence we do not see any infirmity in this finding. (29). In the light of our conclusion we dismiss both the appeals. Conviction and sentences awarded to accused appellants Jagdish Prasad and Banwari son of Ram Karan stand confirmed. The accused appellant Banwari son of Ram Karan is on bail, his bail bonds will stand cancelled and he must surrender himself to custody for serving out the sentences awarded to him.