- (1.) CHALLENGE in this appeal is to the judgment of conviction and the order of sentence dated 01.06.2001 whereby the appellant, Charan Singh @ Charan, was held guilty for the offence punishable under Section 304 Part II, IPC, and ordered to undergo rigorous imprisonment for five years besides the payment of fine of Rs. 1,000/ - and in default thereof, to undergo further rigorous imprisonment for one year.
(2.) AT the outset, learned counsel for the appellant submits that in view of the dying declaration (Ex.PN) and the other material available on record which has been discussed in the impugned judgment by the learned trial court, he does not want to challenge the conviction of the appellant for the offence punishable under Section 304 Part II, IPC. However, he submits that in view of the totality of the facts and circumstances of the case, the substantive sentence awarded to the appellant is on higher side. Though the learned counsel for the appellant has proposed not to challenge the conviction of the appellant but to satisfy the conscience of this Court, the whole material has been rescanned with his able assistance and that of the learned counsel for the State.
(3.) BRIEF facts of the case are that on 18.1.1999 Jagbir (since deceased) while going to his fields to fetch green -fodder (Barseem) he had joined Rajinder, Subhash @ Matru, Charan Singh @ Charna (appellant) and Jagdish @ Kirru, in a room constructed in the fields of Rattna to take a cup of tea with them. Jagdish @ Kirru was jointly employed by the various field -owners to look after their crops since he had a licensed gun. At that time also, he was holding his gun. Jagdish @ Kirru left his loaded gun inside the room where the appellant and the deceased etc were sitting and came out of the room as the room was filled with smoke. Jagbir (since deceased) was lying on a coat (Charpai) while Rajinder, the co -accused of the appellant, was sitting on a coat made of wood (Takhat). Charan Singh @ Charna (appellant) lifted the gun belonging to Jagdish @ Kirru and by turning its barrel towards Jagbir pressed the trigger, resultantly, the bullet hit the neck of Jagbir (since deceased). Jagbir was firstly carried to the General Hospital, Jind, and from there to the Medical College and Hospital, Rohtak. On receipt of a memo and wireless message, ASI Daya Nand (PW13) rushed to the Medical College and Hospital, Rohtak, and after obtaining the fitness certificate (Ex.PM/1) from the Medical Officer recorded the statement (Ex.PN) of Jagbir (since deceased). The said statement was sent to the Police Station for registration of the case. On 27.01.1999 at about 8.50 a.m, Jagbir succumbed to the injuries sustained by him in the above stated incident. Inquest proceedings were conducted as per Section 174, Cr.P.C; the dead body was subjected to postmortem examination and as per opinion of the doctor who conducted autopsy, the cause of death was on account of the injury caused to the spinal cord and subsequent complication arising out of the injuries received by Jagbir. The injuries mentioned in the postmortem were anti -mortem in nature and sufficient to cause death in ordinary course of nature. The statements of Rajinder son of Rattan Singh, Subhash @ Matru, and Jagdish @ Kirru were recorded; the blood stained strings of the coat (charpai) on which Jagbir was lying at the time when he received the fire shot injuries, were taken into possession. The weapon of offence, i.e the licensed gun of Rajinder, was also taken into possession vide seizure memo Ex.PB/1, It had come on record during investigation that the gun did not belong to Jagdish @ Kirru but it was owned by Rajinder s/o Ved Parkash. After completion of the investigation, the charge -sheet (report under Section 173, Cr.P.C.) was presented before the learned Area Judicial Magistrate. Since the offence under Section 302, IPC, was exclusively triable by the Court of Session, therefore, the case was committed to the said court after supplying the copy of the report under Section 173 Cr.P.C, and the documents enclosed therewith to the appellant free of costs as envisaged in Section 207, Cr.P.C.;