L.S.MEHTA, J. - (1.)ACCUSED Prithvi Singh, son of Dayal Singh, Jat Sikh resident of Mohalla, District Ganganagar, has been convicted by learned Sessions Judge, Ganganagar, on November 25, 1967, under Section 302, I.P.C, and sentenced to imprisonment for life and to pay a fine of Rs. 100/ -∈ default of payment of fine to suffer rigorous imprisonment for a further period of two months. He has further been held guilty under Section 307, Penal Code, and sentenced to rigorous imprisonment for four years. He has also been convicted under Section 25, Indian Arms Act, and sentenced to rigorous imprisonment for one month. All the sentences have been directed to run concurrently. The other accused, Dayal Singh, father of Prithvi Singh, and Mai Singh, brother of Prithvi Singh, have been acquitted of the offences under Sections 302/34, and 307/34, Penal Code.
(2.)THE prosecution story can be ranged within a narrow compass. The accused Dayal Singh was on inmical terms with Gurumukh Singh. It is alleged that Ajaib Singh, son of Dayal Singh, had been assasinated sometime ago. In that case Dayal Singh wanted Gurumukh Singh to give evidence on behalf of the prosecution. The latter declined to do so. This created enemity between Gurumukh Singh and Dayal Singh. On November 24, 1966, at about 5 pm. the three accused, Prithvi Singh, Mai Singh and Dayal Singh went to Guiumukh Singh's thrashing floor, where he his son Raajeet Singh, and his 'Siri' JoginderSingh were working. Prithvi Singh was armed with a 12 bore gun. He was going ahead towards Gurumukh Singh's land. He was followed by the accused Dayal Singh and Mai Singh. The two accused asked Prithvi Singh not to spare Gurumukh Singh and others. When Prithvi Singh arrived at the place about 15 paces away from the thrasingh floor, he fired his gun towards Ranjeet Singh, resulting in certain injuries on his person. Soon after Prithvi Ssngh fired another shot, which hit Joginder Singh. An alarm was raised by Gurumukh Singh, whereupon Jagtar Singh and others rushed to the spot. Later on, the accused persons took to their heels. The injured Ranjeet Singh and Joginder Singh were taken in a jeep car to the Police Station, Kashrisinghpur, where first information report of the incident was lodged by Gurumukh Singh. Both the injured persons were then sent to the Primary Health Centre, Karanpur. Their injuries were examined by Dr. Joginder Singh P.W. 4, Medical Officer, that very day at about 11 p.m. following injuries were noticed on the person of Ranjeet Singh:
1.Gun shot wound of entry 1/4'x1/4' on the left thigh back in its middle more to the other side. 2. Gun shot wound of exit of injury No. 1, 1/2'x1/3' on the left thigh frontier side just at a little higher level than its middle. 3. Gunshot wound of entry 1/4'x1/4' on the medial side of the left fore -arm about 2' above the medial condyle of the humurus. 4. Gun shot wound of exit of injury No. 3, 1/2'x 1/4' with anterior medial side of the left arm in its middle. The Doctor found the two injuries, noted below, on the person of Joginder Singh: 1. Gun shot wound of entry 1/2' X 1/3' on the left side of the abdomen just above the left tuburcole of the Polvi bone. Grievous by gun shot. 2. Gun shot wound abrasion 1/2'x1/4'x1/4' on the left thigh inner side upper 1/4' just below the level of left testicle. Simple by a passing shot. No blackening and charring of the skin present. Next day, i.e., on November 25, 1966, the Doctor, having seen the condition of the injured Joginder Singh precariously serious, sent a letter to the Sub -Divisional Magistrate, Karanpur, for recording his dying declaration. His statement was put in writing that day by Sub -Divisional Magistrate, Karanpur, at 6 -45. a. m. There after Joginder Singh died in the hospital at 5. p.m. Autopsy of his dead body was performed by the Doctor at 9 a.m. on November 26, 1966. According to the Doctor, the cause of his death was shock and tuxemia due to generalized pevilocity caused by perforation of the intestines as a result of injury No. I. Bhanwar Lal, S.H.O. Keshrisinghpur, being on leave initial investigation was taken in hand by Om Prakhsh, P.W. 6. He went to the spot on November 25, 1966. He found an empty cartridge Ex. 5 and a wad Ex. 7, near the scene of the incident. These articles were seized by him. Site plan Ex. P.19 and a description memo Ex. P.20 were prepared by him. The accused Prithvi Singh was arrested on November 25. 1966. He gave information to the police as to the place, where he had kept the weapon of the offence, 12 bore single barrel country made gun, and empty cartridge and a live cartridge, vide Ex. P.24. The Police recovered all the three articles, i. e., the gun Ex. 3, live cartridge Ex. 5, and empty cartridge Ex. 4 from the house of the accused Prithvi Singh at his instance under memo Ex. P.25. The gun, empty cartridge and the the wad, duly sealed, were sent to the Forensic Laboratory, Chandigarh, for examination. Pellets Ex. 10, recovered from the body of Joginder Singh by the Medical Officer, Primary Health Centre, Karanpur, were also sent to the Ballistic expert for test. The report of the Ballistic expert is that the empty cartridge had been fired from the gun sent to him. It was also opined that the wad and the pellets could form part of the cartridge received by him. The accused Dayal Singh and Mai Singh were arrested on December 1, 1966. The gun, recovered at the instance of Prithvi Singh, was found to be in his possesion without any licence. A case under the Indian Arms Act was registered against him on December 1, 1966. after having obtained requisite sanction for his prosecution from the District Magistrate Ganganagar. A charpe -sheet under Sections 302 and 307, read with Section 14, Penal Code, was put up against all the accused in the court of Sub -Divisional Magistrate, Kananpur. The said Magistrate conducted necessary inquiry in accordance with Section 207 -A., Cr. P.C, and committed all the three accused to the court of Sessions Judge. Ganganagar. Prithvi Singh was to stand trial under Sections 302 and 307, I.P.C. and under Section 25, Indian Arms Act. The other two accused, Mai Singh and Dayal Singh were to face trial under Section 302, read with Section 34, I.P.C. as also under Sections 307/34 I.P.C. The accused pleaded not guilty to the charges. In support of its case, the prosecution examined 9 witnesses. In their statement, recorded under Section 343, Cr. P.C, the accused persons made toul denial of the indictments. They did not produce any evidence in their def nee. Eventually, learned Sessions Judge, Ganganagar, by his judgment, dated November 25, 1967, acquitted the accused Dayal Singh and Mai Singh by giving them benefit of doubt, and convicted sentenced the culprit Prithvi Singh as aforesaid Aggrieved against the above verdict, Prithvi Singh has filed this appeal. Contention of learned Counsel for the appellant is that the evidence produced by the prosecution in this case is false and concocted According to learned counsel, Ranjeet Singh P.W. I, though present on the spot didn't see Prithvi Singh actually firing at him and towards Joginder Singh Gurumukh Singh, father of Ranjeet Singh, and Hari Singh, brother of Joginder Singh, learned Counsel adds were not present on the spot. They are subsequent introduction. Counsel has further urged that the dying declaration Ex. P.4 recorded by Sub -Divisional Magistrate, Karanpur, Shri Roshan Lal is not worthy of credence. He then debated that another dying declaration Ex. P.32. recorded by the Police cannot be relied upon as it was simply a statement taken down under Section 161. Cr. P.C. Learned Counsel also argued that Jagtar Singh. Rohel Singh and Ganga Singh were material witnesses in the case, but they have been withheld by the prosecution. Therefore, adverse inference should be drawn against it. Last contention of the appellant's counsel is that there is no reliable evidence to conclude that gun Ex. 3. live cartridge Ex. 5 and fired cartridge Ex. 4, recovered from the house of the accused, as also empty cartridge case Ex. 6 and wad Ex. 7, seized by the Police on the spot, reached the Ballastic Expert in a sealed condition and that the seals affixed at the time of their recoveries remained intact and were not tampered with in transit. Learned Deputy Government Advocate supported in toto the judgment of the court below.

In this case the prosecution has relied upon 3 sets of evidence, namely, (1) eye -witness, P.W. 1. Ranjeet Singh, P.W. 2, Gurmukh Singh and P.W. 5 Hari Sineh, (2) two dying declarations, Ex. P. 4 dated November 25, 1966, recorded by Sub -Divisional Magistrate, Karanpur. and Ex. P.32, put in writing by the Investigating Officer, on November 24, 1966; and (3) recovery of the gun Ex. 3 live cartridge Ex. 5, and the fired cartridge Ex. 4, as also recovery of empty case Ex. 6 and wad Ex. 7 together with the statement of Dr. B.R. Sharma, P.W. 3, Director Forensic Science Laboratory, Chandigarh.

(3.)WE may first take up the first set of evidence. Learned Counsel for the accused has argued that Ranjeet Singh P.W. 1. was, no doubt, present on the spot, but according to him his face was towards the south whereas firing was done from the north -west, Ranjeet Singh received certain injuries at the place of the occurrence, According to the Doctor Joginder Singh P.W. 4, he sustained the injuries mentioned above. The duration of the injuries was within 24 hours and the injuries were caused by gun shot and were simple in nature. These injuries could have been the result of a single fire. In this context there can be no feeling of uncertainty that he was present on the spot. There is also nothing on the record to show that Ranjeet Singh had any axe to grind against the appellant. Ranjeet Singh has indubitably said in his statement Ex. D. 3 that when Prithvi Singh was about 10 paces away from him, Dayal Singh and Mai Singh threw a challenge. In the trial court he says that the distance between him and Prithvi Singh was 15 to 18 paces. The site inspection memo contains that the distance between 'A', where the witness was standing, and the spot marked 'F', where from Prithvi Singh fired, is 32 paces. From this inconsistency it cannot be inferred that Ranjeet Singh is a liar. He is a villager and the estimate given by him is based on a rough calculation. It cannot be concluded therefore that the assailant was inside Balbir Singh's Bara, shown in the site plan Ex. P.19, or that he might be standing in the nearby 'nullah'. It appears from Ranjeet Singh's deposition that the 'Nohra' of Balbir Singh is head -high. If some one else was in the 'Nohara' or in the nearby 'nullah', as shown in the plan, the pellets would have hit the upper portions of the bodies of the victim and not the lower ones. The witnesses positively stated that it is not a fact that the gun was fired from inside the'Nohna'of Balbir singh. Learned Counsel for the appellant has pointed out that Ranjeet Singh's face was towards the south and the gun was fired from towards the north west and as such he could not have seen the firer. The witness has deposed that when Prithvi Singh fired, his face was towards the south. He has further stated that immediately before the fire he was standing facing east. Later on he has said that at the time of the second fire he was facing towards Prithvi Singh and that the second fire was made within a minute or a half after the first fire. It was but natural for the witness that even if he was facing towards the south and the injury which he sustained was not his back, he would curiously look tack as to who was the assailant. At any rate, there is his positive statement that when the second fire was shot, he did see the accused Prithvi singh. He might have gone to the nearly 'Bara' situate, as shown in the site plan, at No. 17 where the blood stains were found, but that does not necessarily mean that he could not have seen Prithvi Singh, specially when the walls of the Bara were having a wall of 9' high only. Learned Counsel for the appellant has poinied out that it is in the evidence of the Station House Officer, Om Prakash, P.W. 5, that the empty cartridge was found at the place 'H' in the site plan. If Prithvi Singh was standing at the place 'F', the fired cartridge could not have been found at the place 'H'. In this connection suffice it to say that the empty cartridge after the first fire might have remained in the barrel or might have been discharged near the place where Prithvi Singh was standing. There is the possibility that the accused might have taken out the empty cartridge near the place where from the gun was fired, while reloading it. There is further possibility that the empty cartridge might have tossed upto the place 'H' before the recovery memo prepared. From the fact that empty cartridge was found at the place 'H', it cannot be inferred that the gun was not fired from the place 'F'. The 'nullah' is at a distance of 7 or 8 paces away from the place 'F', but there is no evidence to suggest that the firer was standing in the 'nullah'. It will, therefore, be preposterous to assume that the firer was either in the 'nullah' or in Balbir Singh's 'Nohra' and was not visible to Ranjeet Singh. Another argument stressed by learned Counsel for the appellant is that there was only one fire and that the story that the gun was fired twice is a tissue of lies. Ranjeet Singh has no doubt stated that he did not see the accused reloading the gun after the first fire. Dr. Joginder Singh has also said in his statement that if the dispersion is wide enough to cover both the injured persons, both of them could receive all the injuries by a single fire. According to learned Counsel Ranjeet Singh and Joginder Singh were on the same line and, therefore, bath of them could have been hit by one fire. Learned Counsel has further argued that in the dying declaration Joginder Singh has not deposed that two fires had been made. He has also pointed out that as there was enmity between Dayal Singh, on the one hand, Gurumukh Singh, on (he other, the second assault could, and ought to have been aimed at Gurumukh Singh, and not towards Joginder Singh. Had the gun been fired twice, two wads should have been found on the spot. In this connection, it may be stated that it is not necessary that Ranjeet Singh should have been the reloading of the gun. Ranjeet Singh was shot at. It was, therefore, expected of him to have immediately found out as to who the firer was and then to run away for self -preservation. The gun must have been reloaded soon after the first fire and Ranjeet Singh might not have in that hurry seen the accused in doing so. A man in that position could not have minutely discerned the act of reloading. Dr. Joginder Singh P.W. 4, has positively stated that both the injured received their injuries by 4 pellets in all. Ranjeet Singh received injuries on his back and that both the injuries could not have been caused by one shot. In the dying declaration Ex. P. 5, recorded by the Sub -Divisional Magistrate, Karanpur, on November, 25, 1966, there is no insertion that there were two fires It is in the prosecution evidence of Dr. Joginder Singh, P.W. 4, that at the time of making the dying declaration, the condition of the deponent was deteriorating and grew serious. It was, therefore, hardly possible for him to make a detailed dying declaration. At any rate, he has not s
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