S S. BYAS, J. -
(1.)- By his judgment dated November 17, 1977 the learned Additional Sessions Judge (1), Hanumangarh has convicted and sentenced the appellant Darshan Singh as under; - S. No. Offence under Section Sentence awarded 1. 302, I P. C. Imprisonment for life with a fine of Rs. 1,000 in default of the payment of fine to further undergo one year's R. I. 2.307, I. P. C. Six year's rigorous imprisonment with a fine of Rs. 500/-, in default of the payment of fine to further undergo six months' like imprisonment. 3. 27 of the Arms Act Two years' rigorous imprisonment.
(2.)SUBSTANTIVE sentences were directed to run concurrently while those in default of the payment of fine consequentively. The accused has come up in appeal to challenge his conviction.
Briefly stated, the prosecution case is that the deceased-victim Sampur-nasingh and Pritamsingh (co-accused acquitted by the Court below) were real brothers. The partition of agricultural land situate in Rohi Dholipal in the district of Ganganagar took place between them. PW 2 Tejsingh is the son of the deceased-victim Sampurnasingh while PW 3 Nanak was a co-sharer in the crops of Tejsingh. Tejsingh had raised a Dhani in this field where he was living with his family. The deceased Sampurnasingh used to live in village Gilpati (Punjab) but had come to his son Tejsingh when the occurrence took place. At about 10. 00 A. M. on Sept. 13, 1975, Tejsingh (PW 2) and Nanak (PW 3) were' cutting the Jawar crops standing in their portion of 13 Bishwas in field Keela No. 24. Teksingh (PW 8) Jagroopsingh (PW 9) and deceased Sampurnasingh were sitting under a tree standing in the same field. The accused Darshansingh accompanied with his father Pritamsingh and one Bantasingh (co accused also acquitted by the Court below) came there where Tejsingh (PW 2) was cutting the crop. They asked Tejsingh to leave the cutting of the crop and go away. Tejsingh asserted his right to cut the crop since it was standing in his portion of the field. Accused Darshansingh had a 12-bore D. B. B. L. gun with him. He fired two shots of his gun at Tejsingh which hit him on his back and left hand. Thereafter accused Darshansingh fired one more shot at Sampurnasingh which hit him in his abdomen causing some injuries including one exit wound. Accused Pritam-Singh and Bantasingh struck blows to Sampurnasingh with their Gandasies which they had brought with them. There was profuse bleeding from the wounds of Tejsingh and Sampurnasingh and the clothes they were wearing got drenched with it. The accused thereafter went away. Tejsingh went to his Dhani. Some persons took him and his father Sampurnasingh to Sangariya Hospital. Since the condition of Sampurnasingh was getting precarious every moment, the lady doctor on duty advised them to go to General Hospital, Ganganagar. However, Sampurna Singh and Tejsingh were taken to General Hospital, Bhatinda (Punjab) for treatment. Teksingh (PW8), immediately after the occurrence, went to Police Station, Sadulshahar and verbally lodged report Ex. P13 of the occurrence at about 5. 00 P. M. on the same day. The police registered a case under sections 307,324 etc. of the Penal Code against the three accused viz. . Darshansingh, Pritamsingh and Bantasingh. Despite the surgical operation, Sampurnasingh did not survive and passed away in the night between 14th and 15th September, 1975 in General Hospital, Bhatinda. Before his death, his injuries as well as the injuries of Tejsingh were examined by PW 10 Dr. S. R. Singhal, the then Medical Officer, Civil Hospital, Bhatinda. The postmortem examination of the deadbody of Sampurna Singh was conducted at about 4. 00 P. M. on September 15, 1975 by PW 4 Dr. Vijay Kumar Gupta, who was also a Medical Officer in Civil Hospital, Bhatinda. Dr. Singhal (PW 10) found one bruise and 9 lacerated wounds on the person of Tejsingh. The injury report issued by him is Ex. P. 17. Dr Singhal found one incised wound on the person of Sampurnasingh The injury report pertaining to Sampurnasingh is Ex. P. 16. The nature of injuries and the weapon with which they were caused to the two victims could not be determined by Dr. Singhal and he reserved his opinion till the receipt of surgical report and x-ray examination report. The Investigating Officer reached Bhatinda and recorded the dying declaration Ex. P 30 of Sampurnasingh in which he narrated how the incident had taken place. On the death of Sampurnasingh, Section 302, I. P. C. was added during investigation. Dr. Gupta (PW 4), who conducted the post mortem examination of the dead-body of Sampurna Singh noticed the following injuries on his person: - (1) A lacerated wound 1. 5 c. m. x 1. 5 c. m. irregular in shape in the epigastrim 4 c. m. left in the mid line and 9 cm. above the umbilicus. (2) Stitched wound 25 cm. in length extending from epigastrim to the hypogastrim on left side of the mid line. (3) One bruise 17 c. m. x 8 c. m. on the left side of the abdomen. Colour was bluish-black. (4) An abrasion 5 cm. x 0. 5 c. m. on obliquely placed in the lumber region on the lefi side in the area of injury No. 3 in its lateral part. (5) An abrasion 1 cm. x 0. 5 cm. at the lower and lateral end of injury No. 4. (6) A lacerated wound 1. 5 c. m. irregular in shape on the left lateral side of abdomen 2 cm. above the iliac crest. Drain tube was put in. (7) A lacerated wound 1 cm. x 1 cm. rounded in shape just below injury No. 6. (8) A lacerated wound 1. 25 cm. x 0. 75 cm. oval in shape on the iliac crest 4 cm. interior and posterior to injury No. 7. (9) A lacerated wound 1 cm. x 0. 75 cm. oval in shape 3. 5 cm. below injury No. 8. (10) A lacerated wound 0. 5 cm. x 0. 75 cm. oval in shape 3. 5 cm. from injury No. 8 placed posterior-superiorly. (Note: - There was no blackening scorching or tatooing in injuries No. 1,6,7,8,9, and 10 ). (11) An incised wound 2. 5 cm. x 0. 75 cm. muscle deep on the lateral aspect of left thigh 10 cm. above the knee joint with 1. 5 cm. abrasion on the lateral side and 3. 5 c. m. abrasion on the medial side. These abrasions were continuous with injury No. 11. (12) An abrasion 3 cm. x 0. 5 cm. on the medial aspect of the left leg 12 cm. below the knee joint. Abdomem:-Extevnal injuries have already been described sub. cutaneogus bleeding present corresponding to injuries No. 1 and 3, and could be traced to injury No. 7. One piece of pellet recovered from the abdominal wall. Peritoneum was injured and stitched at various sides on the left side. Mesentery was injured. One piece of pellet was recovered from the iliac crestarea and another one from the area about the descending colon. Small intestines were injured and stitched at multiple places. Descending colon injured and stitched.
Left hip bone fractured at the iliac crest. All the injuries were ante-mortem. Injury No. 2 was a therapeutic incision by the doctor giving the treatment. Injuries No. 3,4,5 and 12 were caused by blunt weapon while injury No. 11 was caused by some sharp weapon. The remaining injuries No. 1,6,7,8,9 and 10 were caused by some fire arm. In the opinion of Dr. Gupta the cause of death of Sampurnasingh was haemorrhage and shock as a result of injuries. He was also of the opinion that the injuries sustained by Sampurnasingh were sufficient in the ordinary course of nature to cause the death. The post mortem examination report issued by him is Ex. P 2.
The Investigation Officer inspected the site and arrested all the three accused persons. In consequence of the information furnished by accused Darshansingh, one 12-bore D. B. B. L gun was recovered. In consequence of the informations furnished by Pritamsingh and Banta Singh, two Gandasies were recovered. The gun, the pellets wad pieces, the head of 12-bore cartridges etc. were sent for examination to the State Forensic Science Laboratory, Jaipur. The left barrel of the gun was found serviceable while the other not. On the completion of investigation, the police submitted a challan against the three accused in the Court of Munsif and Judicial Magistrate. Ganganagar. who in his turn committed the case for trial to the Court of Additional Sessions Judge framed charges under sections 302 and 307 IPC and 27 of the Arms Act against accused Darshan Singh while under sections 302/34, IPC and section 30 of the Arms Act against accused Pritamsingh and under section 302/34, IPC against accused Bantasingh. The accused pleaded not guilty and demanded trial. The defence taken by them was that of complete denial. It was alleged by them that due to their strained relations with the complainant party, they have been falsely implicated. In support of its case the prosecution examined 14 witnesses and filed some documents In defence, the accused adduced no evidence. On the conclusion of trial, the learned Additional Sessions Judge found no incriminating evidence against accused Pritamsingh and Bantasingh for the offence under sec. 302/34, IPC. They were, therefore, acquitted of the said offence Accused Pritamsingh was convicted under section 30 of the Arms Act. The prosecution case was taken substantially true against the accused-appellant Darshansingh. He was consequently convicted and sentenced as mentioned at the very out-set.
We have heard Shri K. C. Gaur, learned counsel appearing for the accused-appellant and Shri Niyazuddin Khan, the learned Public Prosecutor. We have also gone through the case file carefully.
(3.)MR. Gaur did not challenge the finding of the Court below that the appellant Darshansingh was armed with 12-bore gun and he fired shots from it at PW 2 Tejsingh and the deceased-victim Sampurnasingh. He also did not challenge the conviction of the appellant under sec. 27 of the Arms Act. His submission is that no offence under section 302, IPC is made out against the appellant. It was argued that the deceased-victim Sampurnasingh was nearly 75 years in age. Dr. Gupta, who conducted the post mortem examination of his dead-body did not state that the gun shot injuries caused to him by the appellant were sufficient in the ordinary course of nature to cause the death. It was argued that according to Dr. Gupta, the cause of death was haemorrhage and shock as a result of all the injuries sustained by Sampurnasingh sustained as many as 12 injuries. As per prosecution, the appellant is the author of only injuries No. 1,6,7,8,9 and 10 and was not the author of the other injuries. Injury No. 3, which was 17 cm. x 6 cm. on the left side of the abdomen was in itself sufficient to cause haemorrhage and shock. It was urged that it was incumbent upon the prosecution to precisely show that the gun-shot-injuries caused by the appellant were sufficient in the ordinary course of nature to cause death. Dr. Gupta (PW 4) does not say so. As such, the offence is not covered by Clause 3rd of Section 302, IPC. The offence made out would, therefore, fall either within the ambit of section 326 or 304 Part II, IPC.
In reply, the learned Public Prosecutor submitted that the appellant had fired the shot from his 12-bore gun at Sampurnasingh. The shot hit him on his abdomen which is a vital part of the body. Though Dr. Gupta did not state that the gun-shot injury was sufficient in the ordinary course of nature to cause the death, the Court can examine this question independently. According to the learned Public Prosecutor, the gun shot injuries caused to the deceased-victim should be taken to be sufficient in the ordinary course of nature to cause the death.
We have taken the respective submissions into consideration. The pertinent question is whether the case is covered by Clause 3rd of Section 300, IPC as has been held by the learned Additional Sessions Judge.