R. K. SHUKLA, J. ( 1 ) THIS appeal is directed against the judgment and order dated 9-8-1977, passed by the Sessions Judge, Budaun in Sessions Trial No. 86 of 1976, whereby he has convicted Zorawar appellant under S. 302, I. P. C. and sentenced him to life imprisonment. ( 2 ) ZORAWAR appellant was charged under S. 302, I. P. C. for committing the murder of Ram Bharosey Singh on 23-11-1975 at about 10 a. m. in village Fatehpur, Police Station Musajhag, district Budaun at the CHAUPAL of the deceased with his gun. The appellant and the deceased belong to the same village Fatehpur. It is alleged that Zorawar appellant has four brothers, the eldest of whom was Lahori, who died issueless two years before the occurrence. Smt. Champa Devi widow of Lahori inherited the property of her husband and sold away the same to Bhograj son of her DEWAR, Ram Sahai and went away to her fathers house. Thereafter dispute arose between the brothers of Lahori regarding his property. Nathu and Zorawar appellant formed one party against Ram Sahai. In the evening preceding the murder of Ram Bharosey Singh, the appellant Zorawar and Nathu tried to trap Ram Sahai with intent to kill him. Ram Sahai saved himself by entering into the house of Ram Bharosey and bolting the door from inside. When the assailants went away then Ram Sahai slipped away to his village, Bibipur. Thereafter the appellant developed malice against Ram Bharosey, because Ram Sahai could find his escape with the help of Ram Bharosey. ( 3 ) ON 23-11-1975 when Ram Bharosey was sitting at his Chaupal at about 8 a. m. along with his son Balister Singh (P. W. 3), complainant, his uncle Sita Ram, servants Chandra Pal, Subedar and Jagannath (P. W. 6), the appellant Zorawar came there with his licensed gun through northern Galiara and started abusing Ram Bharosey for protecting Ram Sahai on the preceding day. Thereupon all the persons sitting at the Chaupal of Ram Bharosey got up. Ram Bharosey asked Zorawar appellant not to abuse him. Then Zorawar appellant fired two shots from his D. B. B. L. gun on Ram Bharosey, who fell down on the Chabutra of his Chaupal. When the witnesses challenged the appellant, he reloaded his gun and threatened to kill them if tried to move. Ram Bharosey asked Zorawar appellant not to abuse him. Then Zorawar appellant fired two shots from his D. B. B. L. gun on Ram Bharosey, who fell down on the Chabutra of his Chaupal. When the witnesses challenged the appellant, he reloaded his gun and threatened to kill them if tried to move. Therefore, the witnesses did not proceed further due to fear and the appellant made good his escape towards his house which was quite close to the complainants Chaupal. Ram Bharosey received serious injuries, which were bleeding. The blood fell on the Chabutra. Some pellets hit the outer wall of the room of the Chaupal. ( 4 ) THEREAFTER the complainant Balister Singh proceeded to police station Musajhag with his injured father in a LAHROO and carried with him the empty cartridge which the appellant had left at the spot while reloading his gun. The complainant lodged oral FIR. (Ex. Ka-5) at 9. 35 a. m. on 23-11-1975, which was scribed by Constable Rajendra Prasad (P. W. 14 ). A case was registered under S. 307, I. P. C. and investigation was started by Rudra Deo Yadav, S. O. (P. W. 15 ). He took the statement of Ram Bharosey injured, complainant Balister Singh (P. W. 3), Ram Nath Singh and Govardhan Singh at the police station and sent the injured Ram Bharosey to District Hospital, Budaun for treatment. ( 5 ) DR. V. P. Kulshrestha (P. W. 8), Medical Officer, Sadar Hospital, Budaun examined the injuries of Ram Bharosey Singh on 23-11-1975 at 2. 15 p. m. and found the following three injuries on his person :1. Multiple gun shot wounds of entry in an area of 28 cm. x 24 cm. on right iliac fossa, right hypochondrial region and right side inguinal region and up to umbilicus, each wound measuring 0. 2 x 0. 2 in size, injuries kept under observation. Advised X-ray right side abdomen. 2. Multiple gunshot wounds of entry on right elbow in an area of 8 cm. x 6 cm. (total number) (3) Injury kept under observation. Advised X-ray each wound measuring 0. 2 x 0. 2 cm. Multiple gunshot wounds of entry on left hand palmer aspect and in the wale of thumb ad left index finger, injury kept under observation. Advised X-ray each measuring 0. 2 x 0. 2 cm. All the injuries were kept under observation. (total number) (3) Injury kept under observation. Advised X-ray each wound measuring 0. 2 x 0. 2 cm. Multiple gunshot wounds of entry on left hand palmer aspect and in the wale of thumb ad left index finger, injury kept under observation. Advised X-ray each measuring 0. 2 x 0. 2 cm. All the injuries were kept under observation. Duration of the injuries was noted as about th day. ( 6 ) SRI N. N. Verma, S. D. M. (P. W. 16) recorded dying declaration Ex. Ka-20 of Ram Bharosey Singh on 23-11-1975 at about 5. 40 p. m. in the District Hospital, Budaun. As the condition of the injured Ram Bharosey Singh was serious he was shifted to Mission Hospital, Bareilly, where he died on 4-12-1975 and the case was converted from S. 307, I. P. C. to S. 302, I. P. C. in receipt of the information of the death of Ram Bharosey Singh. S. I. Lakshmi Ram (P. W. 2) prepared the inquest report, Ex. Ka-2 in the Mission Hospital, Bareilly on 5-12-1975 at 11. 35 a. m. and sent the body to mortuary for post-mortem examination. ( 7 ) DR. S. K. Mukerji (P. W. 1) performed the post-mortem examination on the dead body of Ram Bharosey Singh on 5-12-1975 at 4. 30 p. m. and found the following nine ante mortem injuries :1. Operated stitched wound 24 cm. long on the right Paramedial side with 21 stitches, wound gapped at two places for 4 cm. each. 2. Operated stitched wound with corrugated rubber tube 2 cm. x 1 cm. x abdominal cavity deep on the right side abdomen 5 cm. apart 6 cm. away from injury No. 1. 3. Multiple scabbed gun shot wound of entry on the right side abdomen in an area of 32 cm. x 22 cm. x skin, muscle and abdomen cavity deep. No tatooing and Blackening present, extending upper front of right thigh. 4. Vivisection cut mark on the right elbow, left elbow and both mellilolus medial aspect of ankle. 5. Operated stitched wound with corrugated rubber tube 2 cm. x 1 cm. x abdominal cavity 6 cm. away from umblicus. 6. One scabbed gunshot wound of entry. 4 cm. x. 4 cm. x skin deep on the left side abdomen 1 cm. away from umblicus. No tatooing present. 7. One scabbed gunshot wound of entry. 4 cm. 5. Operated stitched wound with corrugated rubber tube 2 cm. x 1 cm. x abdominal cavity 6 cm. away from umblicus. 6. One scabbed gunshot wound of entry. 4 cm. x. 4 cm. x skin deep on the left side abdomen 1 cm. away from umblicus. No tatooing present. 7. One scabbed gunshot wound of entry. 4 cm. x. 4 cm. skin deep on the left iliac crest. No tatooing present. 8. Two scabbed gunshot wound of entry. 4 cm. x. 4 cm. on the palmer aspect left hand in an area 3 cm. x 2 cm. below thumb. No tatooing present. 9. Two scabbed gunshot wound of entry. 4 cm. x. 4 cm. x skin deep on the dorsal aspect of left thumb. No tatooing present. ( 8 ) THE cause of death as noted down in the post-mortem examination report is due to peritonitis. ( 9 ) AFTER completing the investigation, charge sheet was submitted against the appellant, who pleaded not guilty and alleged to have been falsely implicated in this case due to PARTIBANDI. He further alleged that the S. O. went to his house in his absence and took away empty cartridge from there and got his crops looted. ( 10 ) THE prosecution has examined 16 witnesses in support of its case. Out of whom Balister Singh (P. W. 3) and Jagannath (P. W. 6) are the eye-witnesses of the occurrence. Rest of the witnesses are the aforesaid two doctors, S. D. M. I. O. , Ballastic Expert Sri B. Rai, (P. W. 9) and other formal witnesses. The appellant Zorawar produced no witness in his defence. He has filed merely Ex. Kha-1, copy of the FIR dt. 26-11-1975; lodged by Smt. Genda against Sita Ram etc. under Ss. 395/397/367, I. P. C. He has also filed Ex. Kha-2, copy of the FIR, dt. 14-9-1976, lodged by Bhograj son of Ram Sahai against Balister Singh complainant under Ss. 452/307, I. P. C. ( 11 ) AFTER considering the entire evidence on the record the learned Sessions Judge has convicted and sentenced the appellant as mentioned above. ( 12 ) THE aforesaid prosecution story has been fully supported by the evidence of two eye-witnesses, namely, Balister Singh (P. W. 3) and Jagannath (P. W. 6 ). Balister Singh (P. W. 3) is the son of the deceased. ( 12 ) THE aforesaid prosecution story has been fully supported by the evidence of two eye-witnesses, namely, Balister Singh (P. W. 3) and Jagannath (P. W. 6 ). Balister Singh (P. W. 3) is the son of the deceased. He has stated the entire story regarding the occurrence as mentioned in the beginning of the judgment. His presence on the spot cannot be doubted. He took the injured to the police station and lodged the FIR, Ex. Ka-5 promptly at 9. 35 a. m. at the police station Musajhag, situate at a distance of 3 kilometers from the place of the occurrence. Jagannath (P. W. 6) was sitting along with others on the Chabutra near ALAVA. He has corroborated the statement of Balister Singh (P. W. 3 ). Nothing adverse could be brought out in their, cross-examinations which may create any doubt about the correctness of the prosecution case. ( 13 ) APART from the aforesaid statements of the two eye-witnesses, prosecution case is also fully supported by two dying declarations, Ex. Ka-22 and Ex. Ka-20. Ex. Ka-22 is the copy of the statement of the deceased Ram Bharosey Singh recorded by the I. O. at the police station soon after the FIR was lodged. Ex. Ka-20 was recorded by the S. D. M. , Sri N. N. Verma (P. W. 16) as aforesaid. Even if we ignore the statement of the deceased recorded by the I. O. (Ex. Ka-22), the statement, i. e. the dying declaration, Ex. Ka-20, recorded by Sri N. N. Verma, the S. D. M. (P. W. 16) leaves no room for doubt that the appellant committed the murder of Ram Bharosey Singh. Mr. N. N. Verma (P. W. 16) has recorded this dying declaration, Ex. Ka-20 after taking all due precautions and ascertaining that the injured was in a fit mental condition to give that statement and it was recorded on 23-11-1975 at 5. 40 p. m. The said statement has been recorded in question and answer form. Four questions were put to the deceased and they have been answered by Ram Bharosey Singh (deceased ). The injured has clearly stated that he was injured with gun on 23-11-1975 when he was at his Chaupal along with Jagannath etc. 40 p. m. The said statement has been recorded in question and answer form. Four questions were put to the deceased and they have been answered by Ram Bharosey Singh (deceased ). The injured has clearly stated that he was injured with gun on 23-11-1975 when he was at his Chaupal along with Jagannath etc. , appellant Zorawar son of Jai Lal aged about 40 years of his village came there and called him by bad names; that he was beating his brother to which he (injured) objected and the accused called him (injured) by bad names that he fired with his licensed D. B. B. L. gun injuring him. There is no doubt that time of the incident is not mentioned in this dying declaration; but it is merely an omission. It also correct that beating by Zorawar appellant to his brother as mentioned in the dying declaration is not a part of the prosecution case narrated by the witnesses but it does not relate to the cause of his death and is not a part of the transaction, which resulted in his death. In our opinion the learned Sessions Judge has rightly rejected the defence argument and has given good reasons. We find no material defect in this dying declaration, which may adversely affect the prosecution case narrated above. ( 14 ) THE prosecution case finds further corroboration from the cartridge thrown by the accused-appellant and recovered by the complainant at the spot and deposited at the police station on the same day. Recovery of the cartridge has been fully proved from the evidence of the witnesses produced on behalf of the prosecution. There is nothing in the report of the Ballistic Expert, which may create doubt about the correctness of his opinion. ( 15 ) MR. G. P. Mathur, learned counsel for the appellant has contended only one point that according to the opinion of Dr. S. K. Mukerji (P. W. 1), who performed the post-mortem examination, Ram Bharosey Singh died of peritonitis. Thus, injuries found by Dr. V. P. Kulshrestha (P. W. 8) were not the cause of death of Ram Bharosey. G. P. Mathur, learned counsel for the appellant has contended only one point that according to the opinion of Dr. S. K. Mukerji (P. W. 1), who performed the post-mortem examination, Ram Bharosey Singh died of peritonitis. Thus, injuries found by Dr. V. P. Kulshrestha (P. W. 8) were not the cause of death of Ram Bharosey. Therefore, according to his submission the offence does not come within the purview of S. 302, I. P. C. ( 16 ) ON the other hand Sri Jitendra Kumar, the learned Additional Government Advocate relying on two decisions, namely, (i) Naresh v. State, 1980 All Cri C 262 and (ii) Jageshwar Singh v. State of Bihar, 1968 Cri App R (SC) 73, vehemently urged that the offence punishable under S. 302, I. P. C. has been fully made out. ( 17 ) FACTS and circumstances of this case are not seriously disputed by Mr. Mathur, learned counsel for the appellant. Therefore, we are only called upon to decide as to what offence has been made out against the appellant. It is not disputed that the occurrence took place on 23-11-1975 at 8 a. m. in which Ram Bharosey Singh (deceased) received aforesaid three gunshot injuries. Since the condition of the injured Ram Bharosey was serious, therefore he was taken to Bareilly and admitted in Mission Hospital, where he died. No doctor or bed head ticket of the hospital has been produced. Dr. S. K. Mukerji, who performed the post-mortem examination and has noted down the aforesaid nine ante mortem injuries in the post-mortem examination report, Ex. Ka-1, has mentioned the cause of death in the report due to peritonitis. In his examination-in-chief, he has clearly stated that the injuries of the deceased in the ordinary course of nature were sufficient to cause his death. But in his cross-examination he has stated that if peritonitis had not developed he could have survived. He has further stated in his cross-examination that although he has not specifically mentioned in his post-mortem examination report (Ex. Ka-1) that intestines gangerised due to entry of pellets in the intestines; but it is implied in it. He has also stated that there are so many reasons for developing peritonitis but the deceased developed peritonitis as a result of the pellet injuries. Ka-1) that intestines gangerised due to entry of pellets in the intestines; but it is implied in it. He has also stated that there are so many reasons for developing peritonitis but the deceased developed peritonitis as a result of the pellet injuries. ( 18 ) THE peritoneal cavity, the largest cavity in the body, is lined by a serious membrane composed of flattened polyhedral cells resting upon a thin layer of fibro-elastic tissue, the two layers constituting the peritoneum. ( 19 ) IN a companion In Surgical Studies by Ian Aird, Ch. M. , F. R. C. S. F. A. C. S. 2nd Edition (reprint) under Chapter XXXII page 672 the reasons for developing peritonitis are given as under : -" (1) directly from an abdominal wound; (2) from a suppurative process in one of the intraperitoneal viscera (as in appendicitis); (3) after operation upon a hollow abdominal viscus with an infected content; (4) by blood infection; (5) rarely by downward lymphatic infection from the pleura; (6) by direct spread along the female genital tract from the exterior. " ( 20 ) IN the instant case Dr. S. K. Mukerji has clearly stated in his cross-examination as under:"peritonitis ho jane ke bahut se karan ho sakte hain. Parantu mritak ko peritonitis chharra ke lagne ki wajah se hua. " ( 21 ) THUS in the present case the infection of peritonitis is directly from the abdominal wound caused by pellets fired by the appellant from his D. B. B. L. , gun. Therefore, it is not correct to say that the injuries were not the root cause of the death of Ram Bharosey. After careful scrutiny of the evidence, we are fully satisfied that the injuries caused by the appellant by his gun are the root cause of his death. Therefore, it is not correct to say that the injuries were not the root cause of the death of Ram Bharosey. After careful scrutiny of the evidence, we are fully satisfied that the injuries caused by the appellant by his gun are the root cause of his death. In such circumstances in the case of Jageshwar Singh, (1968 Cri App R (SC) 73) (supra), where Pharsa injuries were caused to deceased Raj Girhi Upadhya by the accused on 28-4-1960 and he died on 9-5-1960 and death was due to injuries complicated with tetanus, the Supreme Court held as under :"even if the injuries caused the death combined with the complication of Tetanus, it must be held that those injuries were the cause of death or that, in any case, the circumstances, in which those injuries were received, would be circumstances of the transaction which resulted in his death. " ( 22 ) THIS view has been followed by a Division Bench of this Court in the case of naresh, (1981 UPLT NOC 60) (supra), wherein cause of death of Ganga Ram deceased was not only on account of peritonitis but also on account of generalised speticaemia. In the instant case peritonitis developed through a penetrating wound of the abdominal wall directly from an abdominal wound caused to the deceased, Ram Bharosey on intentional firing of a D. B. B. L. gun by the appellant. Therefore, we have no doubt in our mind that the root cause of the death of Ram Bharosey deceased was the gun shot injuries caused by the appellant to him and development of peritonitis was the direct result of penetrating wounds of the abdominal wall. The injuries caused to the deceased were intended to kill him. ( 23 ) IN view of the above discussions, we find it difficult to accept the contention raised by the learned counsel for the appellant. After careful scrutiny of the evidence on record, we are fully satisfied that the prosecution has succeeded in proving its case against the appellant beyond all reasonable doubt. The judgment and the order of the learned Sessions Judge are perfectly justified and need no interference by this Court. ( 24 ) IN the result the appeal fails and is dismissed. The judgment and order of the learned Sessions Judge are maintained. The appellant is on bail. His bail bonds are cancelled. The judgment and the order of the learned Sessions Judge are perfectly justified and need no interference by this Court. ( 24 ) IN the result the appeal fails and is dismissed. The judgment and order of the learned Sessions Judge are maintained. The appellant is on bail. His bail bonds are cancelled. He shall be taken into custody forthwith and sent to jail to serve out the sentence. Appeal dismissed. .