JUDGMENT 1. - This appeal of Hetram is directed against the judgement of the learned Sessions Judge Sri Ganganagar, dated 6th of September, 1972, whereby Hetram has been convicted for an offence under section 302 Indian Penal Code and sentenced to imprisonment for life. The learned Judge also ordered that the gun and the pistol that have been recovered may be confiscated to the State. 2. The case of the prosecution, as disclosed by Gurdev Singh when he was examined by Kashiram, A.S.I. Police Station, Karanpur, is as follows. 3. There was a quarrel between deceased Gurdev Singh and Hetram on the question of the taking of water in their fields, but the Gram Panchayat intervened and a compromise was got effected between the parties.On the day of incident that is, on 8th of December, 1971 at about 1.00 O'clock in the afternoon Hetram appeared with a double barrel 12 bore gun in his hand at the 'pid' (threshing-ground) where the crop of Arhar belonging to deceased Gurdev Singh was lying and threw a challenge to Gurdev Singh to be ready to meet his end. Gurdev Singh on hearing the challenge started running from the spot and it is alleged that two fires were opened at him by Hetram, but they did not strike Gurdev Singh. After having run some distance and having crossed the 'Khala' Gurdev Singh stopped and looked at Hetram to make enquiries as to why he was after his life but Hetram opened the third fire which hit Gurdev Singh on his thigh. On hearing the gun fires, the mother of Gurdev Singh, his wife and one Atma Singh resident of village 3.0 ran to the spot. Hetram, when saw these persons coming towards Gurdev Singh, ran away with his gun. It is also disclosed by Gurdev Singh in his statement (Ex. P.7), which formed the basis for registering a case against Hetram, that one Mangal Bavari was also standing behind Hetram and he also ran away. Puran, younger brother of Gurdev Singh, then went to the village 3.0 and called Gursaran Singh and Tirath Singh. The villagers then removed Gurdev Singh first to the village and then to the hospital Karanpur. The injuries of Gurdev Singh were examined by P.W. 6 Dr. Ramesh Chandra Sahni and the injury report (Ex. P.5) prepared by him was sent by the doctor to the Station House Officer, Karanpur. The villagers then removed Gurdev Singh first to the village and then to the hospital Karanpur. The injuries of Gurdev Singh were examined by P.W. 6 Dr. Ramesh Chandra Sahni and the injury report (Ex. P.5) prepared by him was sent by the doctor to the Station House Officer, Karanpur. The doctor mentioned in this injury report as follows: "Submitted to S.H.O. Shri Karanpur with the remarks that it may please be sent to P.S. Kesrisinghpur for n/a as accident occurred in P.S. Kesrisinghpur jurisdiction." 4. It is said that this report Ex. P.5 along with Ex. P.7 was then forwarded to the Police Station, Kesrisinghpur where a case under section 307 Indian Penal Code was registered against Hetram. The Station House Officer, Kesrisinghpur then went to Karanpur and examined injured Gurdev Singh. His statement which has been described as dying declaration is Ex. P.9. Dr. Ramesh Chandra advised X-Ray examination of the injured and, therefore, Gurdev Singh was removed to the General Hospital, Sri Ganganagar where he was X-ray. On 11th of December, 1971 all of a sudden Gurdev Singh's condition deteriorated and he died at 8.15 a.m. Dr. A.R. Das (PW 14) conducted the post-mortem examination and he found the following 17 injuries on the person of Gurdev Singh : 1. Gun shot lacerated wound 1/2" in diameter x 11/2" deep on the anterior side of left thigh upper part. 2. Gun shot lacerated wound circular ⅜" in diameter into 2" deep on the anterior side of left thigh of upper part. 3. Gun shot lacerated wound oval in shape 1/2" x ⅜" x 21/2" on the antero-medial side of left thigh upper part. 4. Gun shot lacerated wound oval in shape 1/2" x ⅜" x 1/2" below the anterior superior iliac spine. 5. Gun shot lacerated wound oval in shape 1/2" x 1/4" x 11/2" below the anterior superior iliac spine. 6. Gun shot lacerated wound oval in shape 1/2" x ⅜" x 2" medial side of left thigh upper third. 7. Gun shot lacerated wound 1/2" x ⅛" x 1" on the medial side left thigh upper part. 8. Gun shot lacerated wound 1/2" x 1/4" x 11/4" on the back side of the left thigh 4" below the glutial fold. 9. Gun shot lacerated wound 1/2" x 3" x 1" on the postero-medical side of leet thigh of upper part. 10. 8. Gun shot lacerated wound 1/2" x 1/4" x 11/4" on the back side of the left thigh 4" below the glutial fold. 9. Gun shot lacerated wound 1/2" x 3" x 1" on the postero-medical side of leet thigh of upper part. 10. Gun shot lacerated wound 1/2" x 3/4" x 1" on postero-medial side of left thigh upper part. 11. Gun shot lacerated wound oval in shape 1/2" x ⅜" x 11/2" left lateral side of scrotum (through and through). 12. Gun shot lacerated wound 1/2" x ⅜" x 11/4" on the perinium. 13. Gun shot lacerated wound 1/2" x ⅜" x 11/2" on the perinium. 14. Irregular abrasion 11/2" x 1" on the antero medial side of left thigh in continuation of injury No. 4. 15. Irregular marks of bruise & abrasion (Partial healed) 31/2" x 2" on the right shoulder region. 16. Partially healed abrasion 11/2" x 1" right glutial region. 17. Bruise greenish yellow colour 21/4" x 11/2" back side of the left chest. According to Dr. Das, injuries Nos. 1 to 7 were the entry wounds were spread on area of 41/2" x 31/2" on the upper part of the left thigh. Injuries No. 15 to 17 were, however, found to have been inflicted with blunt weapon. In the opinion of the doctor, Gurdev Singh died of shock and haemerrhage due to multiple gun shot injuries but all those injuries by themselves were not sufficient to cause death in the ordinary course of nature unless some complications were developed subsequently. 5. The doctor when cross-examined deposed that the patient when he was brought to the hospital was found to be in good general condition and since he did not suspect the patient to die, he did not write to the police authorities to record the dying declaration. All the injuries, according to him were simple in nature. 6. Hetram was arrested on 27th December, 1971. On 3rd of January, 1972, he furnished an information regarding the where abouts of a 12 bore gun which was recovered by the Station House Officer, Shri Kesrisinghpur on that very day vide recovery memo Ex. P.6 from the house of the father of the accused person. This is a licensed gun of the father of the accused. 7. On 3rd of January, 1972, he furnished an information regarding the where abouts of a 12 bore gun which was recovered by the Station House Officer, Shri Kesrisinghpur on that very day vide recovery memo Ex. P.6 from the house of the father of the accused person. This is a licensed gun of the father of the accused. 7. It may be mentioned here that after the incident Hetram went to Police Station, Kesrisinghpur and lodged a verbal report at 4.00 p.m. on that very day, that is, on 8th of December, 1971, wherein it was stated that Gurdev Singh was nursing a grudge against him on account of a quarrel which had taken place about four months before the date of occurrence on the question the turn of water supply from the canal. He further stated that he purchased a stack of fodder from one Basantilal which was stocked just near the 'pid' (threshing ground) of Gurdev Singh. At about 2.00 p.m. Gurdev Singh came with a pistol in his hand and he threw a challenge at him and opened a fire of that pistol at Hetram which did not hit him. Hetram ran towards the south. Another fire was opened by Gurdev Singh which also missed. Then, after crossing the Khala it appears that Gurdev Singh came near him. Hetram had a 'tangli' in his hand and he inflicted a blow on the head of Gurdev Singh whereupon Gurdev Singh caught hold of Hetram and there a grappling started. During that grappling it is alleged that the pistol which was in the hand of Gurdev Singh went off and it hit Gurdev Singh on his thigh. He also stated that during that scuffle the tangli was broken. Gurdev Singh immediately fell down after sustaining the injuries from the pistol. Harnek Singh and Nandram, who had heard the report of the pistol fire, came to the spot. Harnek Singh took in his possession the pistol from Gurdev Singh. A case was registered on the basis of this verbal report but, according to Circle Officer Shri Manohar Lal (PW 13), the allegations made in this report were found baseless and, therefore, final report was submitted before a Magistrate in that case. 8. Harnek Singh took in his possession the pistol from Gurdev Singh. A case was registered on the basis of this verbal report but, according to Circle Officer Shri Manohar Lal (PW 13), the allegations made in this report were found baseless and, therefore, final report was submitted before a Magistrate in that case. 8. It may be mentioned here that after registering a case Shri Bhag Singh, Station House Offiicer, Kesrisinghpur reached the place of occurrence at 5.00 p.m., where Sukhram (DW 4) handed over a pistol alleged to have been taken by Harnek Singh (DW 1) from Gurdev Singh along with an empty cartridge which, according to D.W.1 Harnek Singh, was fired from that pistol. 9. Next day, after registering the case against Hetram, the Station House Officer again went to the spot of occurrence and prepared a site plan (Ex P.1). The description of the site plan as given by the Station House Officer is contained in Ex. P/1A. In this document it was mentioned by Shri Bhag Singh that he discovered the signs of grappling on the spot near the Kikar tree on the bank of the 'Khal' which is 4 pawandas' away from the actual spot of occurrence. It may be mentioned that on the previous day when Bhag Singh visited the place of occurrence he found one empty cartridge case lying in the 'pid' (threshing ground) of Gurdev Singh which was seized by him vide seizure memo Ex. P.15. The 12 bore gun recovered from the house of father of the accused and the two cartridge one recovered from the house of Gurdev Singh and the other presented to Bhag Singh by Sukhram (DW 4) and the country made pistol given by Sukhram were sent for examination of the Ballistic Expert. Dr. O.P. Chug (PW 12), who was the Assistant Director, Central Forensic Scientific Laboratory examined these articles and sent his report that the two empty cartridge cases must have been fired from the right barrel of the 12 bore gun (article 8). After investigation, a challan was put up against Hetram in the court of the Munsif-Magistrate First Class, Shri Karanpur. The learned Magistrate, after taking committal proceedings, sent the accused for trial for an offence under section 302 Indian Penal code to the court of Sessions, Sri Ganganagar. 10. The prosecution examined PW 1 Mst. Bhajankaur mother of Gurdev Singh, PW 2 Mst. The learned Magistrate, after taking committal proceedings, sent the accused for trial for an offence under section 302 Indian Penal code to the court of Sessions, Sri Ganganagar. 10. The prosecution examined PW 1 Mst. Bhajankaur mother of Gurdev Singh, PW 2 Mst. Ranjitkaur wife of Gurdev Singh, PW 3 Puran Singh younger brother of Gurdev Singh and Atma Singh as eye witnesses who corroborated the story of tthe prosecution as given out by Gurdev Singh in his statement (Ex. P.7). The defence which came out with a counter story examined D.W. 1 Harnek Singh, D.W. 2 Jeewanram, D.W. 3 Basantilal and D.W. 4 Sukhram in support of their version. 11. The learned trial Judge, after examining the case of both the parties, expressed his doubt about the correctness of the defence version and believed the story as divulged by the prosecution witnesses and recorded the conviction of the accused-appellant as referred to above. It is in these circumstances that this appeal has come before us. 12. Mr. Mulla, learned counsel for the appellant, argued that the learned trial Judge has adopted a wrong approach to assess the cases placed before him, both by the prosecution and the defence. According to learned counsel, the trial Judge should have scrutinised whether the prosecution has succeeded in establishing its case beyond all realms of doubt, but instead of doing so the learned trial Judge dealt with the infirmities of the defence case and on that basis rejected the defence story and convicted the accused -appellant. This conviction, therefore, according to Mr. Mulla, cannot be sustained. He also argued that the circumstances, which have been brought on the record, if properly examined, go to corroborate the defence theory but the learned trial Judge did not take into consideration those circumstances in the manner in which they ought to have been examined by him and, therefore, he urged that the case of the defence, as revealed as early as within two hours from the incident, finds corroboration from the circumstance which cannot in any manner be explained on any other hypothesis except the hypothesis of the innocence of the accused. Learned counsel appearing on behalf of the State, on the other hand, urged that the injuries and the area covered by those injuries go to believe the theory put forth by the defence and corroborate the prosecution story as disclosed by the deceased himself. Learned counsel appearing on behalf of the State, on the other hand, urged that the injuries and the area covered by those injuries go to believe the theory put forth by the defence and corroborate the prosecution story as disclosed by the deceased himself. 13. In the light of these arguments, we propose to scrutinise the evidence adduced by the parties in support of their respective cases. 14. Hetram reported the matter at 4.00 p.m. at Police Station, Kesrisinghpur wherein the story as disclosed by him puts the entire blame on Gurdev Singh who, according to Hetram, was the aggressor and tried to kill Hetram with a country-made pistol which was snatched from him by D.W. 1 Harnek Singh and was produced before the Station House Officer Shri Bhag Singh when visted the place of occurrence at 5.00 p.m. on that very day. Along with that country made pistol a cartridge was also presented by Sukhram (D.W. 4) which is alleged to have been fired from that pistol. This report has been placed on the record but has not been exhibited. It contains a detailed narration of the incident as disclosed by Hetram and also mentions the arrival of the mother and wife of Gurdev Singh at the place of occurrence after Gurdev Singh was hit by his own country made pistol. 15. The statement of Gurdev Singh (Ex. P.7) on the other hand, places the entire blame on the shoulders of Hetram and according to him an attempt was made by Hetram to kill him with the double barrel 12 bore gun. He also mentions that one Mangal Bavari was also with Hetram. Of course, he does not assign any overt act to Mangal Bavari but it appears that he has been named in that statement (Ex. P.7) as an accomplice of Hetram who went away from the spot of occurrence along with Hetram. 16. On the 8th of December, 1971, when Bhag Singh (PW 10) visited the place of occurrence he found one empty cartridge lying at the threshing-floor of Gurdev Singh from where that cartridge was seized by him. The cartridge which was presented along with the country made pistol by Sukhram (D.W.4) and the cartridge which was seized from the threshing-floor were sent for the examination of the Ballistic Expert and it is found from the statement of Dr. The cartridge which was presented along with the country made pistol by Sukhram (D.W.4) and the cartridge which was seized from the threshing-floor were sent for the examination of the Ballistic Expert and it is found from the statement of Dr. O.P. Chug (P.W. 12) that both these cartridges were fired from the right barrel of the gun (Art. 8). It is common ground that the fire arm was used thrice and only three fires were opened by the assailant at the victim. If the double barrel gun was used by the assailant, then two empty cartridge cases must have been found at the place where the gun was reloaded by the assailant. One cartridge, which is said to have been fired from the right barrel of gun (Art.8) was found lying at the threshing-floor of Gurdev Singh and the other cartridge which was presented by Sukhram (D.W.4) to Bhag Singh (PW 10) when he visited the spot of occurrence at 5.00 p.m. as suggested by learned counsel for the State was another one which must have been ejected from the gun when it was re-loaded but this suggestion cannot be accepted by us as both these cartridges were fired from one barrel, that is, from the right barrel of the gun. It may be noted here that if the double barrel gun was used by Hetram and if the gun was fired only once, then there was no occasion for the assailant to reload it unless it was fired once again because the gun must have a second cartridge therein. The presence of one empty cartridge case at the threshing floor (Pid) of Gurdev Singh suggests that whoever may be the assailant he was armed with a single barrel fire-arm and, therefore, after opening the first fire he felt the necessity of re-loading that the empty cartridge case was ejected from the barrel and was found lying at the threshing-floor. The presence of one empty cartridge at the 'pid', therefore, creates doubt about the use of a double barrel gun by the assailant. If the assailant were really armed with a double barrel gun, then he could not have felt the necessity of re-loading the same after the first fire was opened. 17. The next circumstance which further strengthens the doubt is the place of recovery of the empty cartridge case. If the assailant were really armed with a double barrel gun, then he could not have felt the necessity of re-loading the same after the first fire was opened. 17. The next circumstance which further strengthens the doubt is the place of recovery of the empty cartridge case. It is not the case of the prosecution that Hetram went to the 'pid' to kill Gurdev Singh. According to the prosecution Gurdev Singh was standing at the 'pid'. If Hetram was really the assailant of Gurdev Singh, then, according to the story revealed by the prosecution, the empty cartridge could not be found at the 'pid' as the gun must have been fired at Gurdev Singh from some distance. It has not come on the record as to how far the fodder purhcased by Hetram was stacked from the 'pid' of Gurdev Singh where Hetram was seen by Gurdev Singh before the alleged gun was fired at him. The seizure of the empty cartridge case form the 'pid' of Gurdev Singh appears to be in consonance with the defence case. 18. In this connection it might as well be noted that Jeewan Ram (DW 2), father of Hetram, submitted an application (Ex. D.8) in the court of Munsif Magistrate Sri Karanpur stating that the police in order to create an evidence against his son was out to seize his 12 bore gun and it is likely that the police would create an evidence by firing cartridges from this gun and, therefore, request was made to the learned Magistrate to seal the gun and take the possession thereof but the learned Magistrate could not find any relevant law under which he could take possession of the gun and keep the same in the court. This application further strengthens the doubt about the intention of the prosecution to create evidence against the accused to show that the gun which was a licensed gun of the father of the accused was used during this incident. It may also be mentioned that the accused was arrested on 27th of December, 1971, but he furnished an information regarding the where abouts of this gun on 3rd of January, 1972, when this gun was already taken by the father of the accused to the court of the Munsif Magistrate, Shri Karanpur for handing it over to the Magistrate. 19. 19. Both the empty cartridges, one recovered from the threshing-floor of Gurdev Singh and the other presented by Sukhram, are said to have been fired from the right barrel of the 12 bore gun (Art.8). It is not the case of the prosecution that after the third fire the gun was re-loaded by Hetram. On the contrary, it is alleged that he ran away after the third fire hit Gurdev Singh. Therefore, only two empties can in the natural course of circumstances be found at the sport. It is suggested by learned counsel appearing on behalf of the State that both these empties were fired from the 12 bore gun (Art. 8) some where near the 'pid'. If that be so, then both these cartridges could not have been fired from the right barrel of the gun. The gun was examined by Dr. Chug (PW 12) and he did not find that the left barrel of the gun was out of order. In these circumstances, the recovery of the two empties alleged to have been fired form the gun (Art. 8) creates a cloud of doubt on the prosecution case. 20. Mr. Mulla argued that the prosecution has failed to prove that the gun as well as the empty cartridges were kept under seal throughout because Bhag Singh was transferred after some time and thereafter there is not evidence on the record that the seals were kept in tact. It no doubt true that the evidence of keeping the seals intact is of a formal nature but in the circumstances of this case it has assumed importance and, therefore, it was the duty of the prosecution to prove that the seals on these articles were kept in fact till they were sent to the Ballistic Expert for examination. The absence of evidence about this fact that the articles were kept under proper seal throughout also throws doubt on the prosecution case. It may also be noted here that the gun was recovered on the 3rd of January, 1972, but they were sent for the examination of the Ballistic Expert in the month of April, 1972. No reasonable explanation is coming forth from the prosecution for keeping these articles for such a long time under the custody of the police. 21. It may also be noted here that the gun was recovered on the 3rd of January, 1972, but they were sent for the examination of the Ballistic Expert in the month of April, 1972. No reasonable explanation is coming forth from the prosecution for keeping these articles for such a long time under the custody of the police. 21. There is yet another circumstance which could not be explained satisfactorily by the prosecution and it is the presence of a broken 'tangli' from the spot of occurrence. At the trial, the prosecution claims that the 'tangli' belonged to the deceased, but till Mst. Bhajankaur (PW 1) was examined at the trial the prosecution did not come forward to claim the ownership of this 'tangli' by the deceased. On the contrary, we find that the first information report which was lodged by Hetram on the day of occurrence at Police Station, Kesrisinghpur makes a mention of 'tangli' and it has been alleged that 'tangli' was in the hand of Hetram and that when he was overpowered by deceased Gurdev Singh, he used that 'tangli' to inflict blows on the head of Gurdev Singh. The medical examination of Gurdev Singh, however, does not disclose any injuries on his head but there are three injuries on his chest which are said to have been inflicted by blunt weapon. Those injuries have not been explained by the prosecution as to how injuries Nos. 15 to 17 were sustained by Gurdev Singh. The eye-witnesses give no account of the manner in which these injuries were received the deceased. These injuries suggest that the assailant of Gurdev Singh must have used some blunt weapon also. If the presence of 'tangli' as claimed by Hetram to be his, is taken into consideration then it casts a serious doubt on the veracity of the case of the prosecution. 22. Apart from these circumstances, there is one another circumstance which cannot be lost sight of in this connection. Dr. Ramesh Chandra Sahni (PW 6), who was posted at Karanpur, had examined Gurdev Singh. When he came in the witness box, he disclosed that "the gun fire could be a little bit from downwards to upwards or from the same level but not from upward to downward. There are black spots on the outer side of the underwear Ex. 1. Ramesh Chandra Sahni (PW 6), who was posted at Karanpur, had examined Gurdev Singh. When he came in the witness box, he disclosed that "the gun fire could be a little bit from downwards to upwards or from the same level but not from upward to downward. There are black spots on the outer side of the underwear Ex. 1. These black spots are around the whole of the aperture area where there is blood. He however, could not make any comments regarding the presence of black spots on the underwear of Gurdev Singh. 23. It is contended by learned counsel for the State that the dispersal of the pellets shows that the fire-arm was used from a distance of about 12ft which is more in consonance with the story given by the prosecution. The direction in which the pellets have travelled a little bit from downwards to upwards shows that the gun could not be used as is disclosed by the prosecution evidence. The upward trend of the pellets and the place where the injury was caused are more consistent with the defence theory and create doubt about the prosecution case. The presence of the black spots on the outer side of the underwear around the whole of the aperture area also suggests that the fire-arm could be used in the manner suggested by defence. 24. R.M. Jhala and V.B. Raju in their Medical Jurisprudence have dealt with the question of the distance for the use of the firearm and they have said : "In all the types of weapons rifles, revolvers or shotguns the assessment of distance is after all approximate. It depends on the pressure in the barrel, amount of energy liberated, amount and type of powder burnt entirely or partially and last but not the least the type of the bullet and length of the barrel". 25. We have no material on the record to find out all these factors which ultimately go to determine the distance from which the fire arm was used and, therefore, the argument advanced by learned counsel for the State that the fire arm must have been used to hit Gurdev Singh from a distance of 12ft. cannot be accepted, especially when we find that there are black spots on the entire area of the aperture. 26. In the statement (Ex. cannot be accepted, especially when we find that there are black spots on the entire area of the aperture. 26. In the statement (Ex. P.7) recorded by Kashi Ram, A.S.I. Police Station, Shri Karanpur, Gurdev Singh tried to involve Mangal Bavri who also quarrelled with him along with Hetram about four months before. The eye witnesses who have been produced by the prosecution do not establish the presence of Mangal Bavari at the spot. This shows that Gurdev Singh when he made that statement (Ex. P.7) was conscious of this fact that he could take revenge by taking the advantage of this incident by involving those against whom he nurtured a grudge. The name of Mangal Bavari has been mentioned in the statement (Ex. P.7) from that point of view which takes away the credibility of the statement to a great extent. 27. From this discussion, it will be clear that the prosecution case is not free from doubt and the prosecution has not come out with a truthful story. In these circumstances, we cannot uphold the conviction of Hetram. 28. We therefore, allow the appeal of Hetram and acquit him of the charge under Section 302 Indian Penal Code. He is in jail. He shall be released forthwith if not required in any other case. *******