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2008 DIGILAW 648 (PNJ)

Partap v. State Of Haryana

2008-03-05

JAGDISH SINGH KHEHAR, SHAM SUNDER

body2008
Judgment J.S.Khehar, J. 1. Criminal Appeal No. 174-DB of 2005, has been filed by Abhey Ram against the order passed by the Additional Sessions Judge, Kaithal in Sessions Case No. 42 of 2003 decided on 22.1.2005. By the impugned judgment it has been held that the accused/appellant Abhey Ram and his co-accused Partap in furtherance of common intention had murdered Karamveer alias Bheera and committed the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Since the accused/appellant Abhey Ram used his licensed gun for murdering the deceased, he has also been held guilty of the offence punishable under Sections 27 of the Indian Arms Act, 1959. 2. The accused/appellant Partap has filed Criminal Appeal No. 158-DB of 2005 impugning the same judgment, which is the subject Crl.A.No. 158-DB of 2005 2 matter of appeal in Crl.A.No. 174-DB of 2005 on account of his conviction along with his co-accused Abhey Ram under Section 302 read with Section 34 of the Indian Penal Code (for having committed the murder of Karamveer alias Bheera). 3. The appellant Abhey Ram in Crl.A.No. 174-DB of 2005, was sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- for the offence punishable under Section 302 read with section 34 of the Indian Penal Code. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for a period of six months. So far as his conviction under the provisions of the Indian Arms Act, 1959, is concerned, he has been sentenced to undergo rigorous imprisonment for a period of three years and also to pay a fine of Rs.1000/-. In default of payment of fine he has been sentenced to undergo rigorous imprisonment for two months. His substantive sentences were ordered to run concurrently. As against the aforesaid, his co-accused Partap has been sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- for the offence punishable under section 302 read with section 34 of the Indian Penal Code. In default of payment of fine, he has been sentenced to undergo rigorous imprisonment for a period of six months. In so far as the sentences are concerned, they were announced by the Additional Sessions Judge, Kaithal vide his order dated 21.4.2005. 4. In default of payment of fine, he has been sentenced to undergo rigorous imprisonment for a period of six months. In so far as the sentences are concerned, they were announced by the Additional Sessions Judge, Kaithal vide his order dated 21.4.2005. 4. Since the same judgment, of the Additional Sessions Judge, Kaithal, is the subject matter of challenge in Criminal Appeal No. 174-DB of 2005 as also in Criminal Appeal No. 158-DB of 2005, we shall dispose of the same through the instant common order. 5. The prosecution version of the incident is based on the statement of Krishan PW8 which he had made to S.I.Dharam Singh PW14 on 25.3.2003 at 11.15 P.M. As per the statement of Krishan PW8, he was employed as a truck driver. His family comprises of two brothers and three sisters. The complainants elder brother Karamveer alias Bheera is a resident of village Jakholi and is engaged in agriculture. The complainants brother Karamveer is married and has one son. The complainant claims to have been living in the parental house for the last two months on account of an injury on his feet. On the day the complaint was made i.e. on 25.3.2003, it is alleged that at 8.30 P.M. while he was standing on the "chaubara" of the house, and while his mother Malli Devi was drying the floor for the cattle, his brother Karamveer alias Bheera came out of the house to tether the cattle. On seeing his brother Karamveer alias Bheera, the accused/appellant Partap gave a "lalkara" and asked his co-accused Abhey Ram to shoot Karamveer alias Bheera so as to teach him a lesson, for having hurled abuses at them. The accused/appellant Abhey Ram, accordingly, fired at the brother of the complainant i.e. Karamveer alias Bheera with his single barrel 12 bore gun, the pellets of which hit his brother in the chest towards the right side of his body, as well as, on the left side of the waist. Having received the thrust of the shot fired by the accused/appellant Abhey Ram, Karamveer alias Bheera fell down over a small wall towards the house of his uncle (fathers elder brother) Zile Singh, and died at the spot. Having seen the occurrence, the complainant immediately came down the stairs, whereupon the accused/appellant Abhey Ram, also pointed out his gun towards him (Krishan PW8). Having seen the occurrence, the complainant immediately came down the stairs, whereupon the accused/appellant Abhey Ram, also pointed out his gun towards him (Krishan PW8). Accordingly, the complainant Krishan PW8 went back to the house, dragging his mother Malli Devi with him. According to the complainant, the occurrence was witnessed not only by the complainant himself, but also by his mother Malli Devi. Having fulfilled their objective, the accused/appellants Abhey Ram, and his brother Partap went away. According to the complainant the accused/appellants Abhey Ram and Partap have been entertaining a grudge against the members of his family, on account of the dispute between the two families. The two families were living in the houses across each other. The dispute between the two was on account of water flowing from the house of the deceased Karamveer alias Bheera, towards the house of the accused/appellants Abhey Ram and Partap, before it fell into the pond. The pond, under reference, is stated to be located, on the side of the street, where the house of accused/appellants Abhey Ram and Partap is situated. In view of the altercation between the parties on the aforesaid issue an underground pipe had been installed for discharging the water coming out of the house of deceased Karamveer alias Bheera, into the pond directly so that it did not flow on the road towards the house of the accused/appellants Abhey Ram and Partap. 6. After recording the statement made by the complainant Krishan PW8, SI Dharam Singh PW14 went to the place of occurrence, and got the same photographed. He inspected the spot and prepared the inquest report Exhibit PH. He also recorded the statements of the persons present at the place of occurrence, whereafter, he sent the dead body of Karamveer alias Bheera for post mortem examination through HC Sat Pal PW10 and Constable Suresh Kumar. He also prepared the rough site plan of the place of occurrence Exhibit PO with marginal notes thereof. From the spot, he lifted blood stained earth, and made sealed parcel thereof. One empty cartridge was also lifted from the place of occurrence, which was also converted into a sealed parcel, and taken into possession. He also recorded the statements of the mother of the deceased Malli Devi PW9, and the statement of Birkha Ram PW13 and Balwant. He then went to the Civil Hospital,Kaithal and procured the post mortem report. One empty cartridge was also lifted from the place of occurrence, which was also converted into a sealed parcel, and taken into possession. He also recorded the statements of the mother of the deceased Malli Devi PW9, and the statement of Birkha Ram PW13 and Balwant. He then went to the Civil Hospital,Kaithal and procured the post mortem report. He also completed the other formalities connected with the investigation of the case whereupon the challan was presented in the Court of Additional Chief Judicial Magistrate,Kaithal on 25.5.2003. 7. The Additional Chief Judicial Magistrate by his order dated 5.6.2003 arrived at the conclusion that a prima facie case punishable under Section 302 read with Section 34 of the Indian Penal Code was made out against both the accused Abhey Ram and Partap. He also arrived at the conclusion that a prima facie case under Sections 27 of the Indian Arms Act,1959, was made out, against the accused/appellant Abhey Ram. Since the offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Session, the Additional Chief Judicial Magistrate, Kaithal, by his order dated 5.6.2003, committed the case for trial, to the Court of Session. 8. By an order dated 18.7.2003, the Additional Sessions Judge, charged the accused Abhey Ram and Partap for having committed the murder of Karamveer alias Bheera with the licensed gun of Abhey Ram with common intention. Both of them were accordingly charged under Section 302 read with Section 34 of the Indian Penal Code. Abhey Ram was separately charged for having used his licensed gun for the murder of the deceased Karamveer alias Bheera under Section 27of the Indian Arms Act, 1959. 9. The accused/appellants Abhey Ram and Partap were then confronted with the charges framed against them. They pleaded not guilty and claimed trial. 10. During the course of the trial, the prosecution examined a number of witnesses. A brief description of the statements of the witnesses produced by the prosecution, is being summarized here. The prosecution first examined Constable Sish Pal as PW1.He tendered into evidence his affidavit Exhibit PA. A perusal of his affidavit reveals that parcels prepared at the place of the occurrence by the Investigating Officer SI Dharam Singh PW14 were handed over to him to be taken to the Malkhana, and that, he had deposited all the aforesaid parcels at the Police Malkhana. A perusal of his affidavit reveals that parcels prepared at the place of the occurrence by the Investigating Officer SI Dharam Singh PW14 were handed over to him to be taken to the Malkhana, and that, he had deposited all the aforesaid parcels at the Police Malkhana. SI Maha Singh was produced by the prosecution as PW2. He recorded the First Information Report bearing No. 77 on 25.5.2003 at 8.30 P.M. on receipt of the "ruqa" from SI Dharam Singh PW14. He also stated that he despatched the special report through Constable Bhim Singh to the Ilaqa Magistrate. Constable Ram Niwas appeared in the case as PW3. He had prepared the scaled site plan Exhibit PC of the place of occurrence, on the pointing out of the complainant Krishan PW8. Constable Bhim Singh appeared as PW4. He tendered into evidence his affidavit Exhibit PD. A perusal of his affidavit reveals that he had taken the special report to the Ilaqa Magistrate at 4 A.M. HC Maha Singh was examined as PW5. He tendered into evidence his affidavit Exhibit PE. A perusal of his affidavit Ex.PE reveals that he had taken various parcels prepared by SI Dharam Singh PW14 to the Malkhana of the Police Station and thereafter sent the said parcels to the Forensic Science Laboratory,Madhuban through Constable Sish Pal PW1. The statement of Dr. Piyush Kumar, was recorded as PW6. According to Dr.Piyush Kumar PW6, he had conducted the post mortem examination on the dead body of Karamveer alias Bheera on 26.3.2003 as a Member of the Medical Board which comprised of Dr. R.P.Goel and Dr.Ravi Bhatia, besides himself. According to Dr.Piyush Kumar PW6, there were numerous multiple round lacerated wounds of the size of about 1 cm in diameter with inverted edges and dark rings around them on the right side of the chest just upto and lateral to the sternum on the left side and on the right lateral wall of the chest besides the right arm, and on the right side of upper abdomen on the anterial and lateral side. He also stated that there was one wound of a similar nature on the base of the neck. On dissection of the body he had found multiple pellets present in the anterior chest wall, the anterior abdominal wall. He also stated that there was one wound of a similar nature on the base of the neck. On dissection of the body he had found multiple pellets present in the anterior chest wall, the anterior abdominal wall. Many of the pellets after crossing the chest wall and after having fractured the ribs were found in the right lung and liver. Two pellets were also found in the heart. According to Dr.Piyush Kumar PW6, some of the pellets were removed and handed over to the police in a sealed vial. In the opinion of Dr.Piyush Kumar PW6 the cause of death of Karamveer alias Bheera was haemorrhage and shock due to injuries to vital organs described in the post mortem report. He also asserted that all the injuries were ante-mortem in nature, and sufficient to cause death, in the ordinary course of nature. He also confirmed that the injuries were from a fire arm. The statement of constable Ramesh Chand was recorded as, PW7. He had visited the place of occurrence and had taken the photographs of the spot. He produced the photographs (Exhibits P4 to P10) and their negatives (Exhibits P11 to P17). In his cross-examination he affirmed that he had taken the aforesaid photographs at about 1.45 A.M. on 26.3.2003. The statement of the complainant Krishan was recorded as PW8. He reiterated the factual position as had been narrated by him at the time when he had made his complaint to the police on 25.3.2003. In addition to the aforesaid, he stated that the police had interrogated the accused/appellant Abhey Ram on 27.3.2003, and on his pointing out, had recovered a gun from the house of Abhey Ram,lying under the cow dung cakes. The gun, its license and the cartridges thereof were taken into possession by the police vide recovery memo Exhibit PJ, which was thumb marked by Krishan PW8. In his statement he asserted that when the accused/appellant Partap gave the "lalkara" and the accused/appellant Abhey Ram fired at Karamveer alias Bheera, they were at a distance of 8/10 feet from their house. He also stated that he pointed out the place from where the shot was fired to the police, as also, to the Draftsman who had prepared the scaled site plan. He also stated that he pointed out the place from where the shot was fired to the police, as also, to the Draftsman who had prepared the scaled site plan. He acknowledged during the course of his cross-examination that his uncles lived in the neighbourhood, but none had come out of their houses, either on hearing the noise of the "lalkara" or the noise of the gun shot. He asserted that he had narrated the occurrence to his uncle Ram Saran. He reiterated that he told the police about the motive for the accused/appellants. Malli Devi the mother of the deceased Karamveer alias Bheera is also the mother of the complainant Krishan PW8, was produced by the prosecution as PW9. She endorsed the statement made by Krishan PW8 on all material particulars. The statement of HC Sat Pal was recorded as PW10. He stated that he had taken the dead body of Karamveer alias Bheera to the Civil Hospital,Kaithal, for post mortem examination. The statement of HC Kehar Singh was recorded as PW11. He asserted that he had interrogated the accused Abhey Ram and that Abhey Ram had made his disclosure statement in furtherance whereof a loaded gun along with the license thereof was recovered from the cattle "kotha" for cattle, lying under the cow dung cakes. The statement of Inspector Jagdish Chander was recorded as PW12. His statement is of a formal nature. The statement of Birkha Ram was recorded as PW13. He was a witness to the recovery memo vide which the sealed parcel containing the emptry cartridge was taken into possession. He is the uncle (fathers elder brother ) of the deceased Karamveer alias Bheera, as well as, of the complainant Krishan PW8. During his cross examination he stated that an empty cartridge lying at a distance of 8/10 ft from the handpump had been found, and further that the dead body of Karamveer alias Bheera was at a distance of 3-4 feet from the handpump. SI Dharam Singh i.e. the Investigating Officer was examined as PW14. In his statement, he reiterated the factual position in respect of the investigation carried out, by him, as has been noticed, in the foregoing paragraphs. Thereafter, the prosecution evidence was closed. 11. The statement of accused Abhey Ram was recorded under Section 313 of the Code of Criminal Procedure on 13.8.2004. In his statement, he reiterated the factual position in respect of the investigation carried out, by him, as has been noticed, in the foregoing paragraphs. Thereafter, the prosecution evidence was closed. 11. The statement of accused Abhey Ram was recorded under Section 313 of the Code of Criminal Procedure on 13.8.2004. In his statement, he denied the incriminating circumstances appearing in the prosecution evidence which were put to him. The stance adopted by him was that he had been falsely implicated because the complainant Krishan PW8 had been nursing a grudge against him, as he had lodged a complaint against Krishan PW8 prior to the occurrence. The statement of Partap was also recorded under Section 313 of the Code of Criminal Procedure on 13.8.2004. He also denied the incriminating circumstances appearing in the prosecution evidence which were put to him. His simple explanation was that he was innocent and had been falsely involved in the case. 12. No evidence was led by accused/appellants Abhey Ram and Partap in their defence, despite having been afforded an opportunity to them to do so. 13. The Additional Sessions Judge, Kaithal delivered the judgment in Sessions Case No. 42 of 2003 on 22.1.2005. The accused/appellants Abhey Ram and Partap were held guilty of having committed the murder of Karamveer alias Bheera under Section 302 read with Section 34 of the Indian Penal Code. Additionally, the accused/appellant Abhey Ram was also convicted under sections 27 of the Indian Arms Act, 1959. After hearing them on the question of sentence, they were both sentenced to undergo imprisonment for life and pay a fine of Rs.10,000/-each. In case of default of payment of fine, it was ordered that they would undergo further rigorous imprisonment, for a period of six months. Additionally, the accused/appellant Abhey Ram was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1000/- under Sections 27 of the Indian Arms Act, 1959. In default of payment of fine, he was ordered to undergo rigorous imprisonment for a period of two months. 14. Additionally, the accused/appellant Abhey Ram was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1000/- under Sections 27 of the Indian Arms Act, 1959. In default of payment of fine, he was ordered to undergo rigorous imprisonment for a period of two months. 14. A perusal of the evidence produced, on behalf of the prosecution, as well as, the judgment rendered by the Additional Sessions Judge, Kaithal, reveals that while convicting the accused/appellants Abhey Ram and Partap, reliance was placed on the ocular as well as expert evidence, besides the disclosure statement made by the accused/appellant Abhey Ram on the basis where of the single barrel 12 bore gun used in the commission of the crime, was recovered from his house. So far as the ocular evidence is concerned, the Court accepted and relied on the statements of two eye witnesses, namely, the complainant Krishan PW8 i.e. the brother of the deceased Karamveer alias Bheera, and Malli Devi PW9 i.e. the mother of the deceased Karamveer alias Bheera. The Court also accepted the motive for the commission of crime, namely, that there was a serious altercation between the parties on account of water flowing from the house of the deceased Karamveer alias Bheera crossing the road towards the house of the accused/appellants Abhey Ram and Partap, and thereafter falling into the village pond. The Court also arrived at the conclusion that the expert medical evidence clearly established that the deceased Karamveer alias Bheera had suffered injuries from the pellets of a 12 bore gun, as a number of pellets had also been recovered from the dead body of Karamveer alias Bheera, besides the report of the post mortem examination. The Court also relied upon the report of the Forensic Science Laboratory which concluded that the 12 bore single barrel gun owned by the accused/appellant Abhey Ram, was the one which had been used in the present occurrence. in view of the fact that the cartridge recovered from the place of occurrence,had been fired from the gun recovered from the accused/appellant Abhey Ram. The trial Court accepted the ocular evidence flowing from the statements of Krishan PW8 and Malli Devi PW9. 15. in view of the fact that the cartridge recovered from the place of occurrence,had been fired from the gun recovered from the accused/appellant Abhey Ram. The trial Court accepted the ocular evidence flowing from the statements of Krishan PW8 and Malli Devi PW9. 15. Sarvshri G.S.Gill and J.P.Dhull representing the accused/appellants have collectively raised a number of pleas so as to impugn the finding recorded in the judgment, rendered by the Additional Sessions Judge, Kaithal dated 22.1.2005. Their submissions are being noticed hereinafter. 16. The first contention of the learned counsel for the accused/appellants is that there was no motive, whatsoever. for the accused/appellants Abhey Ram and Partap to have taken such a drastic step against Karamveer alias Bheera. In this behalf, it is submitted that the issue pointed out by the complainant party was only a trivial matter namely, the passing of water from the residence of the deceased crossing the road, and thereafter passing from the front of the residence of the accused, and then into the village pond. It is however, pointed out that even if there was any seriousness in the aforesaid matter the same must be deemed to have been resolved when an underground pipe was laid by the family of the deceased Karamveer alias Bheera, whereupon, the water discharged from the house of the deceased directly fell into the village pond. In order to substantiate the aforesaid factual position, learned counsel for the accused/appellants Abhey Ram and Partap have invited this Courts attention to the statements made by the complainant Krishan PW8, in the first instance soon after the occurrence on 25.3.2003 as also his statement on oath as PW8 during the course of the trial of the case. 17. We have considered the aforementioned contention of the learned counsel for the accused/appellants but we find no merit therein. In fact, from the statement of the accused/appellant Abhey Ram recorded under Section 313 of the Code of Criminal Procedure, it is clear that in his estimation, the complainant Krishan PW8 had named him only on account of the grudge nursed by him on a complaint which he had lodged against him prior to the occurrence. In fact, from the statement of the accused/appellant Abhey Ram recorded under Section 313 of the Code of Criminal Procedure, it is clear that in his estimation, the complainant Krishan PW8 had named him only on account of the grudge nursed by him on a complaint which he had lodged against him prior to the occurrence. During the course of arguments, learned counsel for the accused/appellants does not dispute that the complaint referred to in the statements recorded under Section 313 of the Code of Criminal Procedure pertained to the flow of water from the house of the deceased Karamveer alias Bheera and thereafter crossing the road towards the house of the accused/appellants Abhey Ram and Partap. It is, therefore, clear from the statement of the accused/appellant Abhey Ram, that there were serious differences between the parties, on the issue of flow of water, from the house of the complainant, to the house of the accused/appellants persisting, when the occurrence took place in spite of the fact that the family of the complainant party had laid an underground pipe so as to carry the water directly into the village pond. This was, therefore, the motive for the commission of the crime. 18. The second contention of the learned counsel for the accused/appellants was, that there is an unexplained delay in the registration of the First Information Report. According to the learned counsel for the accused/appellants the occurrence allegedly took place on 25.3.2003 at 8.30 P.M. whereas, the complainant Krishan PW8, made the complaint by recording his statement before S.I.Dharam Singh PW14, at 11.15 P.M. on 25.3.2003. Almost two and half hours after the occurrence had taken place although the place where the statement was recorded was only at a little distance away from the residence of the complainant. Learned counsel for the accused/appellants also invited our attention to the fact that First Information Report bearing No. 77 was registered at Police Station Dhand on the following day i.e. on 26.3.2003 at 1.15 A.M. and further that the Chief Judicial Magistrate,Kaithal, received the special report at 3.30 A.M. It is, therefore, the vehement contention of the learned counsel for the appellants, that as a matter of fact, the complainant Krishan PW8, was not at the place of occurrence, and that, he had been shown at the place of occurrence after summoning him. It is accordingly submitted that the delay in recording the First Information Report, has been used to manipulate the evidence against the accused. Having considered the second submission of the learned counsel for the accused/appellants we find no merit therein as well. From the factual position brought to our notice, it is clear that the complainant Krishan PW8 made a statement to the police in less than three hours from the time when the occurrence actually took place as his statement was concluded at 11.15 P.M. on 25.3.2003 itself, whereas the occurrence had taken place at 8.30 P.M. In his statement as PW8 Krishan had asserted that it had taken him half an hour to record his statement. It, therefore, emerges that he had contacted the police within 2-1/2 hours of the occurrence. It also cannot be forgotten that a blood relation in the family of the complainant party had received a fire arm injury. The first reaction is therefore to attend to the injured. On realisation that a close blood relation has died it needs time for the family members to compose themselves, and only thereafter, the formalities of recording a complaint etc. can be thought of. The First Information Report is shown to have been registered at 1.15 A.M. on the following day i.e. on 26.3.2003. As such, it is clear that the First Information Report came to be registered within two hours of the statement recorded by the complainant Krishan PW8 at 11.15 P.M. on 25.3.2003. In our view, there is no delay even in the submission of the special report to the Chief Judicial Magistrate,Kaithal, inasmuch as, the aforesaid report was received by the Ilaqa Magistrate at 3.30 A.M. on 26.3.2003 i.e with 2-1/4 hours of the registration of the First Information report. In the totality of the facts and circumstances, referred to above, we are of the view that there is hardly any intentional delay, either in recording the complaint, or in the registration of a report, or even in the submission of the special report to the Ilaqa Magistrate, in this case, so as to create an impression in the mind of the Court, that the same was sufficient to manipulate the presence of the complainant Krishan PW8 at the place of occurrence. 19. 19. The third contention of the learned counsel for the accused/appellants is, in fact, a continuation of the second contention noticed above. Relying on the statement of the complainant Krishan PW8, it is sought to be suggested that Krishan PW8 is a liar, and it is improper to rely on his testimony. In this behalf, learned counsel for the accused/appellants pointed out, that in his complaint made to the police on 25.3.2003, Krishan PW8 had asserted that he had been living at the house of the deceased Karamveer alias Bheera for the last two months whereas in his cross examination under oath, while appearing as PW8 on 12.8.2004, he had stated that he had come to the village after leaving his employment 7/8 months prior to the occurrence. It is also submitted that in order to make sure that no one would be in a position to determine the actual date of his return to his native village from Calcutta, he feigned ignorance about the registration number of the truck, on which he had been engaged as a driver. All that he could affirm was that the owners of the truck were Pala and Dhillon, and that, the registration number of the truck was HR-56. It is, therefore, the submission of the learned counsel for the appellants that the statement made by Krishan PW8 besides being one which could not be verified, also shows, that the same was not in consonance with the version expressed by him, at the time, when he had made a complaint on 25.3.2003. Learned counsel for the accused/appellants have also invited our attention to the fact that an injury on the feet of Krishan PW8 was cited as the reason for his coming back to his native village from his employment. It is however pointed out that in his cross examination Krishan PW8 acknowledged that he had taken no treatment during the period he had remained at the village. This according to the learned counsel for the appellants further demonstrates the unreliability of the statement of the complainant PW8 Krishan. 20. We have considered the third contention of the learned counsel for the accused/appellants as has been noticed in the immediately preceding paragraph. For determining the controversy in hand, the first aspect of the matter to be considered is whether the narration of Krishan PW8 in respect of the occurrence under reference is truthful. 20. We have considered the third contention of the learned counsel for the accused/appellants as has been noticed in the immediately preceding paragraph. For determining the controversy in hand, the first aspect of the matter to be considered is whether the narration of Krishan PW8 in respect of the occurrence under reference is truthful. On the issue in hand, we have already recorded hereinabove that Krishan PW8 lodged the complaint in respect of the occurrence promptly and without any delay. The aforesaid conclusion implicitly also leads to the inference that Krishan PW8 was at the place of occurrence. If he had been employed, at that time, he would not have been able to report the matter to the police with such promptitude. It cannot be forgotten that Krishan PW8, is ordinarily employed as a driver. A driver is not stationed at a particular place, but has to travel to different places from time to time, and, as such, till there is positive evidence to the contrary, it will be improper to accept the assertion of introduction of Krishan PW8, at the place of occurrence. In so far as the veracity of his statement in respect of the occurrence is concerned, the factual position narrated by Krishan PW8, was reiterated by another eye witness Malli Devi PW9 i.e. mother of the deceased Karamveer alias Bheera. We are of the view that it was wholly unnecessary to manipulate the presence of Krishan PW8 at the place of occurrence ( as has been suggested) when there was another eye witness to the occurrence. No discrepancy, whatsoever, has been pointed out by the learned counsel for the appellants from the statement of Malli Devi PW9. Therefore, the presence of Krishan PW8, at the place of occurrence, in our view, cannot be subject to any serious doubt. Moreover, it has been established through medical evidence that the death of the deceased Karamveer alias Bheera had been caused from injuries suffered by him from the shot fired from a 12 bore gun, owned and recovered from the accused/appellant Abhey Ram, we have no reason to disbelieve his statement insofar as the occurrence is concerned. We, therefore, find no merit in the third contention of the learned counsel for the accused/ appellants. 21. We, therefore, find no merit in the third contention of the learned counsel for the accused/ appellants. 21. The next contention of the learned counsel for the accused/appellants Abhey Ram and Partap is based on the scaled site plan Exhibit PC prepared by constable Ram Niwas PW3. Referring to the aforesaid site plan, it is pointed out that the point at which the accused/appellant Abhey Ram is stated to have fired at the deceased Karamveer alias Bheera, and the place at which the deceased Karamveer alias Bheera was standing when he was shot at, are shown to be at a distance of 59 feet from one another. The learned counsel for the accused/appellants Abhey Ram and Partap have also invited the Courts attention to the stance of Malli Devi PW9, wherein she stated that the street in front of their house is at a distance of 4/5 yards from the gate and further that the street was about 10 feet wide and further that the distance between the street and the house of the accused/appellant Abhey Ram was between 8/9 yards. Accordingly, the learned counsel for the accused/appellants submitted that it would be just and appropriate to conclude from her statement that the person who had shot at the deceased Karamveer alias Bheera must have been standing at the distance depicted in the scaled site plan prepared by Constable Ram Niwas PW3. In conjunction with the aforesaid, learned counsel for the accused/appellants has also invited our attention to the statement of the Investigating Officer i.e. SI Dharam Singh PW14. In his cross examination S.I.Dharam Singh PW14 acknowledged that the distance between the place from where the blood samples were lifted and the place from where the cartridge was lifted was about 58 feet, and further that, the distance between the place from where the shot was fired and the place from where the dead body was recovered was about 60 feet. It is, therefore, sought to be collectively concluded that the distance from which the shot was fired was approximately 59/60 feet from the place where the deceased Karamveer alias Bheera was standing. Learned counsel for the appellants have also invited our attention to the statement of Malli Devi PW9, which according to them, leads to the same inference. It is, therefore, sought to be collectively concluded that the distance from which the shot was fired was approximately 59/60 feet from the place where the deceased Karamveer alias Bheera was standing. Learned counsel for the appellants have also invited our attention to the statement of Malli Devi PW9, which according to them, leads to the same inference. It is also necessary to notice the objective of the learned counsel for the accused/appellants to have laid down the aforesaid foundation. Learned counsel for the accused/appellants desirous to conclude, that the prosecution version of the incident is falsified from the medical evidence available on the record, inasmuch as, the medical evidence substantiates that the margines of the wounds caused by the entry of the pellets into the body of the deceased Karamveer alias Bheera were darkened; this, according to the learned counsel for the accused/appellants could have been caused only in case the shot had been fired from close, and would not have occurred had the shot been fired from the distance of 59/60 feet. 22. In the totality of the fourth submission advanced by the learned counsel for the accused/appellants, as has been noticed in the foregoing paragraph, we are of the view, that a closer examination of the matter would not justify the submission advanced by the learned counsel for the accused/appellants. First of all, reliance has been placed by the learned counsel for the accused/appellants on the scaled site plan prepared by Constable Ram Niwas PW3. A perusal of the statement of constable Ram Niwas reveals that the aforesaid site plan had been prepared by him on the basis of the facts pointed out to him by the complainant Krishan PW8. Complainant Krishan PW8 while making his statement on oath in the present case clearly stated that the distance from which the accused/appellant Abhey Ram had fired at the deceased Karamveer alias Bheera was about 8/10 feet. If there was any contradiction in the scaled site plan prepared by constable Ram Niwas PW3 on the pointing out of Krishan PW8, then when Krishan PW8 had made his statement in court asserting that the distance between the accused and the deceased was between 8/10 feet, he ought to have been confronted with the scaled site plan Exhibit PC prepared by Constable Ram Niwas PW3 at his instance. Since that was not done, it is not possible for us to allow the learned counsel for the accused/appellants to contradict the testimony of Krishan PW8 on the basis of Exhibit PC i.e. the scaled site plan of the place of occurrence prepared by Constable Ram Niwas PW3. Needless to mention Constable Ram Niwas PW3 was not an eye witness to the occurrence. He had, therefore, not prepared the site plan on the basis of his own knowledge, but on the basis of information furnished to him. Although it can be stated that constable Ram Niwas PW3 had prepared the site plan on the basis of information furnished by Krishan PW8, yet on account of the fact that Krishan PW8 was merely a truck driver it may not be possible also to conclude that Krishan was in a position to ascertain, at his own, the correctness of the site plan prepared by Constable Ram Niwas PW3. In so far as the statement of Malli Devi PW9 is concerned, in her cross examination she conceded that she was illiterate and that she could not disclose her own date of birth, the date of her marriage and could not even tell the dates on which her children were born. Accordingly, it may well be that she could not effectively respond to the questions posed to her during the course of her cross examination as she probably did not understand the difference between the yards and feet. In fact, if the distances mentioned by her in yards is treated the distance in feet, the same almost completely falls in line with the statement of the complainant Krishan PW8. Insofar as the statement of SI Dharam Singh PW14 is concerned, no inference can be drawn therefrom. It has probably not been kept in mind that the empty cartridge of a 12 bore gun does not eject automatically when the gun is fired. Therefore, the place from where the empty cartridge was recovered and the place from where the blood stained earth (where Karamveer alias Bheera had fallen after the receipt of the gun injury) was found would not determine the distance between the place from where the shot was fired and the place where the deceased was standing. The aforesaid conclusion would also apply to the submission advanced on the basis of the scaled site plan Exhibit PC. The aforesaid conclusion would also apply to the submission advanced on the basis of the scaled site plan Exhibit PC. Everything apart since scientific evidence is available, the truthfulness and veracity of the statement made in court can be determined on the basis thereof. The truth of the matter is that the report of the post mortem examination reveals that the edges of the wounds caused by the entries of pellets into the body of the deceased Karamveer alias Bheera were darkened. This could have been so only if the shot fired at the deceased Karamveer alias Bheera had been from a short distance, as is sought to be clearly asserted by one of the eye witnesses to the occurrence i.e. by the complainant Krishan PW8, and not, as it is sought to be demonstrated on the basis of Exhibit PC, the statement of Malli Devi PW9 and the statement of SI Dharam Singh PW14. There is only one possible way, to reconcile the matter. It would be just and appropriate to accept the version of Krishan PW8 to the effect that the gun shot was fired at the deceased Karamveer alias Bheera from a distance of 8/10 feet. The statement of SI Dharam Singh PW14 can be ignored for the reason referred to above, and so also, Exhibit PC. So far as Malli Devi PW9 is concerned, as already noticed above, she is an uneducated person, and as such may not have been able to distinguish between yards and feet. It would not be proper to give much weightage to the statement of Malli Devi PW9. We, therefore, find no merit in the contention of the learned counsel for the accused/appellants that the gun shot fired at the deceased Karamveer alias Bheera was from a distance of about 60 feet, as alleged. 23. The last contention of the learned counsel for the accused/appellants was that it would be impossible for Krishan PW8 and Malli Devi PW9 to have recognized the assailants at 8.30 PM at night when the occurrence as per the prosecution story actually took place, as none of the eye witnesses has asserted that there was an electric bulb in the vicinity, which could have rendered it possible for the complainant Krishan PW8 and the other eye witness Malli Devi PW9 to have recognized and identified the accused/appellants. The instant submission at the hands of the learned counsel for the accused/appellants deserves to be rejected summarily, as we have already concluded hereinabove, that the gun shot fire which had resulted in the death of Karamveer alias Bheera had been fired only from a short distance, so as to result in the darkening of the edges of the wound from where the pellets had entered the body of the deceased Karamveer alias Bheera. The same conclusion can be arrived at (that the shot had been fired at from close range) on the basis of another hypothesis namely, that a large number of pellets had entered into the body of the deceased. It is not disputed that the pellets of 12 bore gun when fired disperse in different directions and are not concentrated on one point, accordingly, if the gun shot injury had been from some distance, the pellets would not only be concentrated in the body of the deceased Karamveer alias Bheera but would also have been found on the wall behind him. Since the evidence produced in this case does not lead to any such inference, it clearly emerges that the shot fired from single barrel gun was from a distance close to the deceased Karamveer alias Bheera. If the distance between the accused and the deceased was not long, as has been suggested hereinabove, there would obviously be no difficulty for the complainant Krishan PW8 and Malli Devi PW9, in recognizing the assailants when the shot was fired at the deceased Karamveer alias Bheera. It is, therefore, not possible for us to accept the instant contention of the learned counsel for the accused/appellants. 24. Abhey Ram, accused, fired a short from the gun which hit Karamveer alias Bheera, resulting into his death, whereas, Partap accused acted in furtherance of common intention, the trial Court framed charge against both the accused for the offence punishable under section 302/34 of the Indian Penal Code. 24. Abhey Ram, accused, fired a short from the gun which hit Karamveer alias Bheera, resulting into his death, whereas, Partap accused acted in furtherance of common intention, the trial Court framed charge against both the accused for the offence punishable under section 302/34 of the Indian Penal Code. Since right from the very beginning the case of the prosecution was that the fatal injury was caused by Abhey Ram, and it was also proved through cogent and convincing evidence, the trial Court was required to record conviction and award sentence to Abhey Ram under Section 302 of the Indian Penal Code instead of section 302 read with section 34 of the Indian Penal Code, as he was well aware of the case of the prosecution throughout. Abhey Ram is thus convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced thereunder. To this extent the impugned judgment of the trial Court is modified. 25. No other contention was advanced by the learned counsel for the accused/appellants, besides those noticed in the foregoing paragraphs. 26. In view of the findings recorded hereinabove, we find no merit in the submissions advanced by the learned counsel for the accused/appellants. Both the aforesaid appeals bearing No. Crl.A. No. 158- DB of 2005 and Crl.A.No. 174- DB of 2005, are accordingly dismissed with the modification indicated above. Bail bond/surety bond of the appellant Partap in Crl.A.No. 158- DB of 2005 are cancelled. The Chief Judicial Magistrate, shall take necessary steps for getting the appellant Partap arrested so that he may undergo the remaining part of the sentence awarded to him by the trial Court and confirmed by this Court.