ISHER DASS Vs. STATE

JUDGEMENT

(1.) ISHAR Dass accused, a resident of Chingas, was committed to sessions to stand his trial under Section 302, Ranbir Penal Code for having murdered one Ladha in village Kangrial, Tehsil Noshera. The accused denied the charge and pleaded not guilty. The Sessions Judge Jammu after considering the evidence convicted the accused under Section 302, R. P. C. and sentenced him to death. There is a reference for the confirmation of the sentence and the accused has preferred an appeal against his conviction and sentence.

(2.) THE prosecution case briefly stated is as follows. Isher Dass was employed as a border scout to perform patrol duty on the border near Berripattan. On 6th Baisakh 2005, the accused was posted as a guard at a point about a mile away from Berripattan along with others. He was required to patrol a certain distance from the place where he was posted and while he was on his round he saw Ladha deceased, his son Shiv Ram and his relation Jhanda removing timber from a house which belonged to Mohammadens who had left for Pakistan. The accused enquired from them as to why they were removing timber from the house without permission. It is further alleged that the accused abused the deceased and his companions and the deceased abused him in return. The accused fired .303 rifle and the bullet hit the deceased in the abdomen. Ladha fell on the ground and his companions ran away. Shiv Ram, the son of Ladha deceased, reported the matter to his mother Mst. Kasto and to the Numberdar Amar Nath. Mst. Kasto came on the scene of occurrence and saw her husband lying in an injured condition. It is alleged that the deceased named his assailant before his wife, Mst. Kasto. Amar Nath reported the matter at the Military Headquarters at Berripattan and Major Slier Singh, Officer-in-charge, sent for the dead body which was examined by the Military Medical Officer, Capt. C. R. Chowdhury who found a bullet wound in the body of the deceased but he did not perform the post-mortem examination. Major Sher Singh addressed a communication to the police at Noshera. The police got this letter on 19th Baisakh 2005 and Sham Singh Sub-Inspector of Police repaired to the scene of occurrence on the 22nd of Baisakh. One Gandu and Krishan Chand also filed a written first information report to the police in regard to this occurrence. The police after investigation challaned the accused.

(3.) IN this appeal the learned counsel for the appellant has argued that no post-mortem examination was performed on the dead body of Ladha deceased and there is no expert evidence to show that the injury caused by the bullet resulted in the death of the deceased. In the judgment of the Sessions Judge he has clearly admitted that no autopsy was performed on the dead body of the deceased but the Sessions Judge has lifted the statement of Dr. Capt. C.R. Chowdhary from the file of the committing Magistrate to the file of the Sessions Court under Section 509, Criminal Procedure Code