S.S.BYAS, J. -
(1.)BY his judgment dated February 16, 1979 the learned Sessions Judge, Udaipur convicted accused Some Singh under Section 302, IPC and sentenced him to imprisonment for life. The accused has come up in appeal to challenge his conviction and sentence.
(2.)IN brief, the prosecution case is that deceased -victim Chamna Meghwal lived in village Rohimala Police Station Oyna District Udaipur with his daughter PW. 3 Mst. Kanchan, wife Mst. Tammu and Mst. Kanchan's husband Dalla. Tammu and Dalla co -accused are who have been acquitted by the Court below. It is alleged that Chamna took Mst. Mohini as his second wife and this sowed the seeds of discordance between him, his wife Tammu and his son -in -law Dalla. It is alleged that deceased Chamna wanted his son -in -law Dalla to go away from his house and live separately at some other place. This had further embittered his relations with his wife Tammu and son -in -law Dalla. In the night between 16th and 17th May, 1978, PW. 8 Teja, PW. 9 Bhera, co -accused Dalla and the deceased -victim Chamna were sleeping on separate cots in a common court yard, as shown in site plan Ex. P 13. At about 11 00 P.M on 16 -5 -78, co -accused Dalla went away from there taking the pretext that he was going to see some fair in a nearby village. At about 2.00 A.M. (17 5 -78) PW. 8 Teja and PW. 9 Bhera got awakened by a gun shot. Both of them stood up from their cots and saw Chamna with a gun -shot injury in his right abdomen. Accused Somsingh was seen by them standing 4 to 5 feet away from the cot of Chamna with a gun in his hand. The accused atence took to heels and disappeared. Many persons collected there at the place of occurrence, before whom PW. 8 Teja and PW. 9 Bhera disclosed that they had seen the accused -appellant with a gun just after the gun shot. PW. 1 Dalit who is the real brother of PW. 8 Teja and whose house H situate nearby the place of incident, also happened to come there. He was sent to lodge the report of the occurrence. PW. 1 Dalla reached Police Station, one at about 8.15 A.M. on 17 -5 -78 and verbally lodged report Ex. P 1 of the. occurrence. The police registered the case and took up the investigation. The Station House Officer PW. 12 Sabir Ali arrived at the scene of occurrence and prepared the inquest report of the victim's dead ,body. He inspected the site and prepared the site plan and seized the blood -smeard soil from there. He also seized the blood stained clothes of the deceased -victim, viz, Dhoti, Baniyan and towel. The autopsy of the victim's dead body was conducted at about 9.45 A.M. on 18 -5 -78 by PW. 14 Dr. O.P. Garg, the then Medical Officer Incharge, Primary Health Centre, Jhadol. He found the following wounds on the victim's body: There were four gun shot punctured circular wounds situated on the right side of the abdomen over the right hypochondrim right epigastric and right umpblical region as shown in the diagram. All the four wounds were circular in shape, fatty tissues were coming out from the wound surface. The edges of the wounds were blackened and inverted.
Size - A. 1/4 cm. in diameter
B. 0.7 cm. in diameter
C. 06.8 cm. in diameter
D. 0.6 cm. in diameter
On opening the body he found the following:
On dissection it was found that underlying tissues were congested. The direction of the wound was upwards and back wards. All the four wounds have penetrated the liver which ruptured the liver. Further the pellets had travelled through diaphargm and entered the left lung causing injury to the left lung. Two flatenned metallic pellets were disected outfrom the posterior surface of the substance of the It ft lung. One rounded large metallic pellet was disected out from the posterior side of the body lodged in between the broken rib No. 3 and 4 and upper part of the left scapula. The other was disected out close to the spinal cord from the posterior wall of the left thorax. The spinal cord was fractured. There was left intra throsic and intra abdominal haemorrhage. Both the cavities were filled up with dark fluid blood.
The injuries were ante -mortem and caused by some firearm. In the opinion of Dr. Garg, the death of the victim had taken place due to gun -shot injury by metallic pellets causing damage to the vital organs of the body, the liver, lung, large vessels etc, followed by haemorrhage, shock and death. He was further of the opinion that the gun was fired at the victim from his front side and from a distance of 4 to 6 feet. The post mortem examination report issued by him is Ex. P.20. The accused -appellant was arrested on 21 -5 -78 and in consequence of the information furnished by him, one muzzle loading gun, one gold 'Bear' and the licence of gun were recovered from his house where he had hidden them. It revealed during investigation that the gun belonged to PW. 11 Laxmansingh and from him the accused had borrowed it a few days before the occunence. The gun and the other seized articles were sent for Chemical Examination. Blood was found on the clothes of the victim. The gun recovered was found in working condition. The four metallic pieces as per report Ex P 16 of the Central Forensic Science Laboratory, New Delhi, could have been fired from the muzzle loading gun recovered at the instance of the accused. Accused Mst. Tammu and Dalla were also arrested. It was suggested that the gold 'Bor' was given to the accused -appellant by Dalla (PW. 1) and Tammu On the completion of investigation, the Police filed the challan against the accused -appellant and the two others viz, Dalla and Tammu in the Court of the Additional Munsif and Judiciil Magistrate, Udaipur, who in his turn -committed the case for trial to the Court of Sessions The learned Sessions Judge framed charges under Section 302 and in alternative under Section 302/34, IPC against all the three accused persons, to which they pleaded not guilty and claimed to be tried. During trial, the prosecution examined 14 witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of trial, the learned Sessions Judge found no incriminating material as against accused Dalla and Tammu. They were consequently acquitted. He, however, held the charge under Section 302, IPC duly proved against the accused -appellant He was, therefore, convicted and sentenced as mentioned above. Aggrieved against his coviction and sentence, accused Som Singh has taken this appeal.
We have heard Shri Doongersingh, learned Counsel appearing for the accused -appellant and the learned Public Prosecutor. We have also gone through the case file carefully.
(3.)AS regards the cause of death, the opinion of Dr. Garg (PW. 14) was not challenged before us by the learned Counsel nor was he in a position to challenge it. Dr. Garg was of the positive and firm opinion that the death of victim Chamna was due to the wounds caused by the gun shot. We find no good and cogent reasons to disagree with the opinion of Dr. Garg It, therefore, stands proved that the death of Chamna was not natural but it was homicidal in nature. Chamna was gunned to death.