TYAGI (Actg.) C. J. - (1.) BOTH these matters namely, D. B. Criminal Appeal No. 310 of 1974 Pyara Singh vs. State filed by accused Pyara Singh and D. B. Criminal Revision No. 362 of 1974 filed by the complainant arise out of the judgment of the learned Sessions Judge, Sri Ganganagar dated 23rd April, 1974. Appellant Pyara Singh has been convicted for an offence under sec. 302 IPC and sentenced to imprisonment for life. The complainant's revision has been Bled with a prayer that in the circumstances of this case the sentence of imprisonment for life awarded to Pyara Singh is not an adequate sentence and, therefore, it should be enhanced to the penalty of death. Notice of this revision was served on the appellant. We propose to dispose of these two matters by a common judgment.
(2.) PISHORA Singh and Pyara Singh belonged to one family and it is not disputed that these two families were not on good terms. They were residents of village 18 P. S. in the district of Sri Ganganagar. On April 20, 1973 PISHORA Singh along with his uncle Dhyan Singh came to Raisinghnagar Mandi to dispose of his produce of barley. The produce was taken to the shop of Baldevraj who was PISHORA Singh's commission agent. It is said that PISHORA Singh had unloaded his trolly in front of the shop of Baldevraj and thereafter PISHORA Singh and Dhyan Singh sat down in the shop of Baldevraj. Jarnail Singh who was also the resident of 18 P. S. , joined PISHORA Singh and Dhyan Singh at the shop of Baldevraj. Gurmukh Singh who was also known to PISHORA Singh came to the shop of Baldevraj and started talking with each other. The prosecution case is that PISHORA Singh slept on a wooden Takhat which was lying in the Varandah of the shop. At about 12 O'clock Pyara Singh's elder brother Sucha Singh came to the shop of Baldevraj and he after having seen PISHORA Singh sleeping on the Takhat went away from the shop. Soon thereafter Pyara Singh came with a. 12 bore gun in his hand and entered the shop. PISHORA Singh was sleeping on the Takhat with his back to the persons entering the shop. Pyara Singh opened a fire with his gun which hit PISHORA Singh on his back. Pyara Singh immediately ran away from the shop. Dhyan Singh rushed to the police station which was hardly a furlong away from the shop and lodged the first information report Ex. P. 9. The incident is alleged to have taken place at 12. 15 p. m. The first information report was lodged at 12. 30 p. m. The report was taken down by Hari Singh under the instructions of the SHO, P. W. 9 Inder Singh. After taking down the report Inder Singh immediately rushed to the place of occurrence. While the first information report was being written, Inder Singh sent a man to call a doctor. At about 12. 50 p. m. the police party re ached the shop of Baldevraj and simultaneously it is said that Dr. A. R. Das also reached that place. The doctor was about to administer some injection to PISHORA Singh but before he could do so, PISHORA Singh breathed his last. PISHORA Singh's body was then taken to the hospital and the post mortem examination was performed on the dead body of the deceased by Dr. Das, who found the following external and internal injuries on the body of PISHORA Singh : - 1. Lacerated wound (wound of entrance) 1-3/8" x 1" x 2-1/4" oval in shape on the back side of the body-2" below the level of left Iliac crest and 3/4" left to mid line. The wound is directed forward and slightly upwards. The margins of the wound are bruised eccnymosed and inverted. 2. Lacerated wound (wound of exit) 3/8* x 1/4" abdominal wall (whole) 1-1/2" left and \" below the umbilicus. Lacerated wound (wound of exit) 3/8" x 1/4" x whole Abdominal wall (2) 2" below the umblicus. Lacerated wound (wound of exit) 1/2" x 1/4" whole Abdominal wall 4" below the umblicus 3. According to the doctor the pellets passed forwards and caused fracture of left iliac bone, upper part of sacral bone 4th lumber vertebrae and 5th lumber vertebrae, and lacerated of spinal cord along with its membrance, laceration of large intestine with peritoneum measuring 4" in length on opening the Abdominal cavity it was found full of blood. In the opinion of the doctor Pishora Singh died of shock and haemorrhage due to the gun short injury. 4. It may be mentioned here that the prosecution doubted the involvement of Sucha Singh also and, therefore, Sucha Singh who was present at the shop of Baldevraj was arrested then and there. Pyara Singh who after the incident had left for his village 18 P. S. was arrested from his house. A. 12 bore gun was recovered at his instance along with certain cartridges including one empty cartridge. But the gun is not connected by any evidence with the commission of the crime. The report of the Ballistic expert also does not throw much light on the use of this gun in killing Pishora Singh. In the absence of any circumstantial evidence the case rested entirely on the oral testimony of the eye-witnesses. P. W. 1 Dhyan Singh the author of the first information report was the person who had accompanied Pishora Singh to the Mandi. Jarnail Singh P. W. 2 and Gurmukh Singh P. W. 3 who had joined Pishora Singh at the shop of Baldevraj are the two other eye-witnesses who were examined by the prosecution. Baldevraj was examined at the stage of commitment proceedings but he was suspected by the prosecution to have joined hands with the defence and therefore he was not produced as a prosecution witness at the trial. In his statement under sec. 342 Cr. P. C. accused Pyara Singh admitted this fact that he was the author of the fatal injury on the body of Pishora Singh but he came out with a parallel theory. His plea was that his brother Sucha Singh was sleeping in the shop of Baldevraj and when he went to that shop to meet his brother, Pishora Singh told him that why he was carrying a gun like a brave man when his wife was having illicit intercourse with him (Pishora Singh) and other persons of the village. These words enraged him and he called bad names to Pishora Singh. On this Pishora Singh put his hand on his pistol. At that time, according to the version, given by the accused, Pishora Singh was sitting on the Takhat, Pyara Singh appre-hended a danger to his life and therefore he opened a fire all of a sudden at the deceased which resulted in his death. He expressed his great regret for this incident in his statement. The learned trial Judge after carefully weighing the testimony of the eye-witnesses came to the conclusion that the prosecution has established that the parties were not on good terms and that Pishora Singh was killed by Pyara Singh at the shop of Baldevraj by using his 12 bore gun as an act of revenge and, therefore, found him guilty for an offence under sec. 302 I. P. C. and sentenced him to imprisonment for life. Sucha Singh was however acquitted by the trial court. Learned counsel appearing on behalf of the appellant urged that the witnesses examined by the prosecution are not reliable witnesses as they are highly interested persons. According to Mr. Bajwa the only eye-witness which could be called an impartial and reliable witness was Baldevraj, but this witness has been purposely and deliberately left out by the prosecution and, therefore, it is vehemently urged that an adverse inference be drawn against the prosecution for not examining uninterested and reliable witness. He further argued that the court should not have taken note of the statement of the accused under sec. 342 Cr. P. C. admitting that the accused was the author of the fatal injury because the exculpatory part of the statement has not been relied upon by the trial court. Relying on Hanumant Govind Nargundkar and another vs. State of Madhya Pradesh (1) and Palvinder Kaur vs. The State of Punjab (2) it was vehemently argued that the court below has committed gross error in law in holding on the basis of the admission of the accused that the accused had caused gun shot injury on the person of Pishora Singh. In the opinion of Mr. Bajwa the prosecution has failed to prove by reliable and independent evidence that the gun shot injury was caused by Pyara Singh. In the alternative it was also argued that even if the circumstances on which reliance has been placed by the prosecution, are taken to have been proved, the case cannot go beyond 304 Part II as it was never the intention of the accused that he should have caused such an injury which could cause in the ordin-ary course of nature the death of the deceased. According to Mr. Bajwa if Pyara Singh had any intention to kill Pishora Singh then it was not impossible for him to have aimed his gun at the vital portion of the body of Pishora Singh. Since the injury was caused on the back of the deceased, it should be taken that the accused never intended to kill him. In support of his contention reliance has been placed by Mr. Bajwa on Virsa Singh vs. State of Punjab (3) and Laxman Kalu Nikalje vs. The State of Maharashtra (4 ). Mr. Than Chand who has been permitted by the Public Prosecutor to represent the complainant party urged that the question of law raised by Mr. Bajwa that the statement of the accused admitting a particular fact cannot be taken into consideration without relying upon the exculpatory part of the statement, is no longer a good law as the authorities of the Supreme Court cited by Mr. Bajwa no longer hold field in view of the later Supreme Court case of the 5 Judges reported in Nishi Kant Jha vs. State of Bihar (5 ). He also urged that recently the Supreme Court has reiterated the principle followed in Nishi Kant Jha's case (5), as is evident from the case reported in 1976 S. C. 1997 (6 ). According to Mr. Thanchand if the exculpatory portion of the statement stands falsified by other circumstances taken on the record then the court can ignore that exculpatory portion of the statement and take into consideration the inculpatory portion thereof without committing violence to the principle laid down by the Supreme Court. A revision application has also been filed by Mr. Thanchand on behalf of the complainant and it is prayed that circumstances of this case warrant the enhancement of the sentence and therefore he urged that death sentence is the proper sentence in this case as firearm was used to kill a person who was lying asleep and in a helpless condition. In support of this contention Mr. Thanchand cited a Supreme Court authority in Lajar Masih vs. State of U. P. (7 ).
(3.) BEFORE examining the question of law raised by the parties we would like to see whether the statement of the eye-witnesses can be relied upon by us or not. Dhyan Singh P W. 1 is the uncle of the deceased. It is in his statement that he came to Raisinghnagar Mandi with the deceased because Pishora Singh had requested to accompany him to Raisinghnagar as he was going to dispose of his barley produce. Being a near relation of the deceased it was not unnatural for him to have acceded to the request made by Pishora Singh and, therefore, it can safely be taken that the witness came to Raisinghnagar Mandi in the natural course of circumstances. The incident took place at 12. 15 p. m. and within 15 minutes of the incident this very witness Dhyan Singh lodged the first report Ex. P. 9 at the police station. This shows that the witness was present at Raisinghnagar at the time of the incident. A person who deliberately accompanied his nephew cannot be said to be a chance witness as he had gone with a purpose of giving company to the deceased. It is argued that Ex. P. 9 the first information report is a post investigation document and, therefore, this circumstance that Dhyan Singh lodged the report within 15 minutes of the incident cannot lend any credence to the witness According to Mr. Bajwa Dhyan Singh was called from the village after the incident had taken place and he lodged the report after the investigation had actually started. We regret we cannot accept this contention of the learned counsel because we find that there are other facts on the file to show that first information report was immediately taken down by the S. H. O. P. W. 9. After recording the first information report the S. H. O went to the place of occurrence and the first document that he prepared at the spot was the inquest report Ex. P. 3. This is not denied by the defence that this report Ex. P. 3 was prepared at 12. 50 p. m. i. e. within 20 minutes of the writing of the first information report. The very first sentence of this document Ex. P. 3 shows that the case was registered at 1230 p. m. at the instance of Dhyan Singh. This reiteration of the fact that the case was registered at 12. 30 p. m. demolishes the entire argument of Mr. Bajwa that the first information report was a post investigation document and that Ex. P. 9 cannot be pressed into service to lend corroboration to the testimony of Dhyan Singh. We very carefully perused the statement of Dhyan Singh and we do not find any infirmity in his statement. He was subjected to a searching cross-examination but his testimony could not be demolished at the altar of cross-examination. P. W. 2 Jarnail Singh and P. W. 3 Gurmukh Singh who have been examined by the prosecution as eye witnesses have categorically stated that they were sitting at the shop of Baldevraj when Pishora Singh was sleeping on the Takhat in the Varandah of the shop. The presence of these two witnesses finds a mention in the first information report Ex. P. 9. It is true that these two witnesses did not belong to Raisingh-nagar but that fact alone cannot discredit the witnesses There is no intrinsic infirmity in the testimony of these two witnesses who have supported Dhyan Singh on all counts and, therefore, we feel that the testimony of these 3 eye-witnesses has established beyond all reasonable doubt that the author of the fatal injury on the body of Pishora Singh was none but Pyara Singh. ;