Arijit Pasayat, J. - (1.) LEAVE granted.
(2.) CHALLENGE in this appeal is to the judgment rendered by a Division Bench of the Punjab and Haryana High Court upholding the conviction of the appellant for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short 'I.P.C.') in terms of the judgment dated 9/10.10.1997 passed by the Additional Sessions Judge, Hissar. A synoptical resume of the prosecution case is as under : The prosecution machinery was set into motion at the instance of Shankar - P.W. 5 who had four brothers. Chhajju Ram (hereinafter referred to as the 'Deceased') was younger to P.W. 5- Shankar and they had a joint khewat in the revenue estate of village Sirdhan. On 9.9.1993 the said Shankar and his brother Nain Sukh and deceased Chhajju Ram went to their fields known as Theriwala for irrigating the land. Amar Singh (who faced trial and was acquitted) and Daya Nand (appellant herein) were already irrigating their fields. Shankar and others were to take turn of irrigation at 8.00 a.m. from the accused. At 8.00 a.m. deceased Chhajju Ram diverted the irrigation water to his field. Accused Daya Nand objected that his turn of water had not yet started. Chhajju Ram retorted that their turn started from 8.00 a.m. onwards. An altercation took place between Shankar and the deceased on one side and the accused on the other. Accused threatened that they will see them and both of them left towards the village. Shankar and others also went to supervise the flow of irrigation water through the water courses. In the meantime, both the accused came from the side of village Sirdhan. Accused Daya Nand was armed with a gun. Accused Amar Singh exhorted his son accused -Daya Nand to fire a shot. Accused Daya Nand then fired a shot from his gun towards Chhajju Ram who took a turn but was hit on the right side of the waist and fell down. Blood started oozing out from the fire shot injury. Nain Sukh (P.W. 6) also reached there at the Naka and witnessed the occurrence apart from Shankar. Thereafter, accused fled away towards the village along with the gun. Chhajju Ram was admitted to Civil Hospital, Fatehabad by his brother Shanker and Nain Sukh, where he was declared dead by the doctor. Ruqa Ex. PG was sent by Dr. Jagdish Chaudhry to the Station House Officer, Police Station Fatehabad. A wireless message Ex. PK was sent by the said Police Station to Police Station Bhattu. Ram Kumar, Assistant Sub-Snspector along with some constables reached Civil Hospital Fatehabad and recorded the statement of Shanker in Civil Hospital, Fatehabad. That statement Ex. PG/1 was sent to the Police Station and on its basis, F.I.R. was recorded by Satbir Singh M.H.C., copy of which is Ex. PG/3. Inquest proceedings were conducted and report Ex. PF/1 was prepared by Ram Kumar Assistant Sub-Inspector in the presence of Devi Lal and Shanker Lal P.Ws. He moved an application Ex. PF and post mortem examination was conducted vide report Ex. PF/2 by Dr. S.P. Mimani. Multiple wounds of small sizes were found and eleven pellets were recovered from the abdomen of the deceased. The pellets were sealed in a vial. The clothes of the deceased were removed and sealed into a parcel. The cause of death was due to shock and haemorrhage as a result of fire arm injuries which were ante mortem in nature and sufficient to cause death in the ordinary course of nature vide post mortem report Ex. PF/2. Ram Kumar, Assistant Sub- Inspector along with Ram Kumar Constable then went to village Sirdhan. He inspected the spot in the presence of Nain Sukh, Ram Sarup, Sarpanch and Brij Lal, Chowkidar. Blood stained earth was lifted, made into a sealed parcel and taken into possession vide recovery memo Ex. PH. One empty cartridge of 12 bore was found lying which was also lifted, made into a sealed parcel and taken into possession vide memo Ex. PJ. Rough site plan, Ex. PL, was prepared and statements of other witnesses were recorded. Accused Daya Nand produced a double barrel gun, Ex. P-8, licence, Ex. P-9, and two live cartridges. Sketch map, Ex. PP of the gun was prepared. The gun was placed in a sealed parcel. The licence and the two live cartridges were also sealed in parcel and taken into possession vide memo Ex. PP/1. The case property was sent for Chemical Examination and for report of the Ballistic expert of Forensic Science Laboratory, Haryana, Madhuban. Vide report, Ex. PO, the double barrel gun, Ex. P8, was found in working order, the empty cartridge hereinafter referred to as the crime cartridge, which was lifted from the spot, Ex. P6, was opined to have been fired from the said gun. The pellets recovered from the dead body were opined to be pellets as are usually loaded in shot gun cartridges, including 12 bore cartridge. As per reports, Ex. PO/1 and Ex. P0/2, human blood was found in blood stained earth and on shirt, Ex. P-1, Banian, Ex. P-2 and underwear Ex. P-3 of the accused. After completion of investigation, accused was sent up for trial. Charge was framed against accused Daya Nand under Section 302, I.P.C. and Section 27 of the Arms Act, 1959. Charge was framed against accused Amar Singh under Section 302 read with Section 34, I.P.C. In order to establish the accusations the prosecution examined 10 witnesses and the report of the Forensic Science Laboratory, Haryana, Madhuban was exhibited.
(3.) ACCUSED persons during their examination under Section 313 of the Code of Criminal Procedure, 1973 (in short 'Cr. P.C.') pleaded innocence and false implication. The trial court relied on the evidence of eye witnesses Shankar (P.W. 5) and Nain Sukh (P.W. 6). It found the prosecution evidence cogent and credible and recorded conviction of the appellant. But so far as accused Amar Singh is concerned, it was held that the evidence was not sufficient to fasten guilt on him. In appeal, it was submitted that the evidence of Shankar (P.W. 5) and Nain Sukh (P.W. 6) should not have been relied upon. It was further submitted that a single shot that too on the hip cannot attract application of Section 302, I.P.C. Prosecution with reference to the evidence of Shankar (P.W. 5) and Nain Sukh (P.W. 6) submitted that the evidence was clear and cogent and, therefore, the accused persons were to be convicted. The High Court, as noted above, dismissed the appeal.;