Punjab-Haryana High Court
Mukhtiar Singh And Ors. vs State Of Haryana on 19 May, 1993
Equivalent citations: 1994CRILJ1007
JUDGMENT S.K. Jain, J.
1. Mukhtiar Singh, son of Mehar Singh, aged 70 years, Labh Singh, aged 28 years and Gulab Singh, aged 26 years, both sons of Mukhtiar Singh, appellants were found guilty of the murder of Makhan Singh and Pappu Singh was causing injuries to Modan Singh, Mithu Singh, Jagraj Singh, Angrej Kaur and Lachha by the learned Sessions Judge, Sirsa and they were convicted and sentences as under:--
(i) Mukhtiar Singh under Section 302, IPC:
(ii) Labh Singh and Gulab Singh, under Sections 302/34, IPC;
Each one of them was sentenced to undergo life imprisonment and to pay a fine of Rs. 500 / -and in default of payment of fine to further undergo RI for one year.
(iii) Mukhtiar Singh under Section 307, IPC, and Labh Singh and Gulab Singh under Section 307/34, IPC.
Each one of them was sentenced to undergo R.I. for five years and to pay fine of Rs. 500/-and in default of payment of fine to further undergo R.I. for one year.
(iv) All the three appellants were convicted under Sections 323, 323/34 IPC, and sentenced to undergo RI for three months.
However, all the three substantive sentences of RI were directed to run concurrently.
2. Feeling aggrieved against their conviction and sentence they have filed Criminal Appeal No. 209-DB of 1991 whereas Jagraj Singh, brother of the two deceased persons, has filed Criminal Revision No. 488 of 1991 praying that the accused be awarded extreme penalty of death and directed to pay Rs. 2 lacs as compensation to the heirs of the deceased. Both the abovesaid cases (appeal and revision are being disposed of by this single judgment.
3. In brief facts of the prosecution case are that Jagraj Singh, Naib Singh, Bura Singh, Modan Singh, Makhan Singh, deceased and Pappu Singh, deceased were brothers. They resided separately in the village Jalalana. Accused Mukhtiar Singh son of Phuman Singh, adopted son of Mehar Singh along with his sons Labh Singh and Gulab Singh (accused Nos. 2 & 3) resided in their neighbourhood. Mukhtiar Singh was employed as Chowkidar in Mini Bank at Jalalana. There was rivalry between the said Mukhtiar Singh on one hand and Makhan Singh deceased and his Sandu (husband of his sister-in-law) Mithu Singh on the other as all three of them had illicit relations with Smt. Golo, wife of Mukand Singh who resided in the village. She was a lady of easy virtues. Marriage of the daughter of Gurbachan Singh has to be solemnized and her barat had to come to the village on the date of occurrence i.e. 2-3-1990.
Along with this barat a party of men and women who had to perform dances etc. had to accompany to the village.
4. On that day there had been exchange of abuses between Makhan Singh and Mukhtiar Singh who were under the influence of liquor. At about 9.00 p.m. Mukhtiar Singh and his two sons Gulab Singh and Labh Singh, appellants herein, abused Makhan Singh and Pappu Singh. So did the women folk on two sides. This happened in the street on which the houses of the parties abutted. Jagraj Singh tried to pacify them and asked them to go to their respective houses. The three accused persons namely, Mukhtiar Singh, Labh Singh and Gulab Singh went to Mini Bank from where Mukhtiar Singh brought his licenced SBBL gun and challenged that he will not spare anybody that day. Thereupon he fired a shot from his gun at the gathering in the street which included Jagraj Singh, Makhan Singh, Pappu Singh, Angrej Kaur, Lachho wife of Naib Singh, Madan Singh and others, Labh Singh and Gulab Singh raised lalkara exhorting their father Mukhtiar Singh to kill them and that none should be allowed to go alive. The pellets of the gun shot hit Jagraj Singh, Angrej Kaur, Lachho and Pappu Singh. All of them ran for their lives, entered and sought shelter in the house of Makhan Singh. A cot was spread and Pappu Singh was laid on it. Mukhtiar Singh, Gulab Singh and Labh Singh accused climbed up the kotha of Makhan Singh after crossing their cortyard. From the roof of the Kotha the accused fired a shot on Makhan Singh who was standing in the court-yard thereby hitting on his right shoulder. Gulab Singh and Labh Singh threw kacha pacca bricks in the courtyard of Makhan Singh from the roof of the kotha. As a result thereof, Madan Singh and Mithu Singh received injuries. Thereafter the accused made good their escape. Makhan Singh and Pappu Singh succumbed to their injuries at the spot. Leaving Madan Singh and Kartar Singh Panch at the spot, Jagraj Singh went to the police station Kalanwali and lodged FIR Ex PL at 1 a.m. on 3-3-1990.
5. Which was recorded by SI Prem Chand, PW 8. Special report was submitted to the Ilaqa Magistrate at Dabwali, at a distance of 30 Kms. from Kalanwali, at 5 a.m. on 3-3-1990. Prem Chand SI after recording FIR, went to the spot and prepared inquest report regarding the dead bodies of Pappu Singh and Makhan Singh. He lifted blood stained earth from near the cot on which dead body of Makhan Singh was lying. Photographs Ex. PK1-4 of the place of occurrence were also taken. One empty cartridge case from the street and another from the roof of the house of Makhan Singh, Exs. P-7 and P-8, respectively, were also seized. The dead bodies were sent for postmortem examination. Rough site plan, Ex. PQ, of the place of occurrence was prepared. Smt. Angrej Kaur, Jagraj chowkidar, Mithu and Modan had injuries on their persons. They were got medico legally examined. PW 3 Dr. Bhagi Rath Guleria, on 3-3-1990 conducted postmortem examination on the dead body of Makhan Singh and found as under:--
1. 9 x 8 cm lacrated wound over front of right shouylder and chest wall, margins were irregular and inverted. On probing, direction of wound was from above to medially downwards oblique. On dissection, lacerated soft tissues infiltration of blood around the wound margins into healthy tissues, The muscles were torn and lacerated and anterior front part of right shoulder joint ligaments torn, multiple fracture of upper end of the right humerus, fracture of 3rd, 4th and 5th ribs on right side anterolaterally.
On left side, 4 cm below left nipple, 5 pellets were recovered from soft-tissues, infilteration (sic) of blood in soft tissues was present. Overlying skin was healthy.
6. The doctor opined that the death was caused due to extensive injuries to vital organs, which were ante-mortcm in nature and sufficient to cause death in ordinary course of nature. These injuries had been caused by gun shots. He further opined that the probable time that had elapsed between injuries and death was within few minutes and between death and post-mortem was 12 to 24 hours. He had extracted pellets and card-wad from the dead body. Same were contained in vial Ex. P8.
7. Dr. Raj Kumar, PW-3 conducted post mortem examination on the dead body of Pappu Singh at 1 p.m. on 3-3-1990 and found as under :--
1. Multiple lacerated wounds present on chest, abdomen, more on right side, on right upper limb and on left arm, 14 cms. below to left acromian process. These were 0.3 to 0.5 cm. diameter. Blakening was present, the margins of wounds were inverted. On dissection, multiple extra-vasation of blood in sub-cutaneous tissues, fractures of 5th, 6th and 7th ribs on right side were present. Multiple lacerations of both pleurae and both lungs, more on right side were present. Both pleural cavities were full of blood. Multiple lacerations in paricardium and heart were present. Extra-vasations of blood in media stinum, blood was present in both chambers Multiple lacerations of liver, small and large intestines, stomach, right kidney, paritonial cavity was full of blood with multiple lacerations of paritonium present.
12 pellets were removed from various injured parts, round in shape and sealed in a vial. Doctor opined as under:--
(i) The cause of death was due to extensive haemorrhage and shock as a result of multiple injuries to vital organs, which were sufficient to cause death in the ordinary course of nature.
(ii) The injuries were ante-mortem in nature.
(iii) The time that elapsed between injuries and death was immediate and between death and post-mortem was within 12 to 24 hours.
(iv) The injuries on the person of deceased could be possible between 10.00 and 11.00 p.m. on 2-3-1990.
8. He had extracted 12 pellets, contained in vial Ex. P-12, from the dead body of Pappu Singh.
9. Dr. O.P. Chachania, PW-1, on 3-3-1990 at 8.15 a.m. had medically examined Angrej Kaur, wife of Jagraj Singh, complainant and found following injuries on her person:--
1. A pellet injury measuring 1/4 x 1/4 cm. on the umbilical region, 4 cms. lateral to the umblicus. There was redness around the wound. The skin was charred. The margins of the wound were inverted. There was. corresponding rent in the shirt. The balckening was present. X-ray was advised.
2. There was a pellet injury l/4 x 1/4 cm. on the left iliac crest near the anterior iliac spins. There was redness around the wound. The skin was charred. The margine were inverted. There was corresponding rent in the shirt. X-ray was advised.
3. A pellet injury 1/4 x 1/4 cm. on the left hypochandrial region, 7 cms. above injury No. 2. The skin was charred and redness around the wound. The margins were inverted. X-ray was advised. There was corresponding rent in the shirt, blackening was present.
4. A pellet injury 1/2 x 1/4 cm. on the lateral side of left thigh, 14 cms. below the iliac crest. There was corresponding rent in the salwar. The direction was antero-poste-riorly. There was redness around the wound. The skin was charred. The margins were inverted, X-ray advised.
5. There was an abrasion 3x2 cms. on the front of right knee.
6. There was an abrasion 2 cms. x 1/4 cm. on the back of left elbow.
10. He declared injuries Nos. 5 & 6 as simple in nature and advised X-ray for rest of the injuries. The Doctor opined that the weapon used for injuries Nos. 1 to 4 was fire arm whereas injuries Nos. 5 & 6 were caused by blunt weapon. The probable duration of injuries was within 24 hours. On receipt of the X-ray report he declared all the injuries simple in nature.
11. On the same day at 8.40 a.m. this Doctor medically examined Jagraj Singh and found following injuries on this person :--
1. A pellet injury 1/3 x 1/3 on the upper abdomen 4 cms. above the umblicus, 1 cm. lateral to the mid-line. The area around the wound was reddish. The skin was charred. The margins of the wound were inverted. There was corresponding rent in shirt and baniyan. The shirt and banyan were sealed and handed over to the police. The blackening was present, X-ray was advised.
2. A pellet injury 1/3 x 1/3 cm. on the upper part of the abdomen, 3 cms. lateral to the midline and 4 cms. from injury No. 1. The skin was charred and redness around the wound was present. The margins were inverted, blackening was present. There was corresponding rent in the shirt and banyan. X-ray was advised.
3. A pellet injury 1/3 x 1/3 cm. on the upper abdomen 3 1/2 cms. above injury Nos. 1 and 2 cms. lateral to the mid-line. The margins were inverted. There was corresponding rent in the shirt and banyan, redness was present around the wound. The skin was charred and blackening was present. X-ray was advised.
4. A pellet injury 1/3 x 1/3 cm. on the upper abdomen 5 1/2 cms. above the injury No. 2, 2 cms. lateral to the midline. The skin was charred and redness around the wound was present. The margins were inverted. There was corresponding rent in the shirt and banyan. X-ray was advised.
5. A linear abrasion 2 cms. x 1/4 cm. in the antero- lateral aspect of right thoracic region, 8 cms. below the nipple.
6. A pellet injury 1/4 x 1/4 cm. on the postero-medial aspect of left hand in line with the little finger 1 1/2 cms. below the wrist. The margins Were inverted. There was redness around the wound, skin was charred and blackening was present. X-ray advised.
7. A pellet wound 1/ 3 cm x 1/3 cm. on the antero-medial aspect of right fore-arm, 6 cms. below the elbow joint. The area around the would was red, skin was charred and blackening present. There was corresponding rent in the shirt. The margins were inverted, X-ray advised.
8. A pellet injury 1/3 x 1/3 cm. on he medial aspect of right upper arm, 15 cms. above the elbow joint. The area around the wound was red. the skin was charred and blackening present. There was corresponding rent in the shirt, X-ray advised.
12. He opined that injury No. 5 was caused by blunt weapon while rest of the injuries by fire-arm within a probable duration of 24 hours. All the injuries were declared simple.
13. On the same day at 9.15 a.m. this Doctor medically examined Smt. Lachho wife of Naib Singh and found following injury on her person:--
1. A pellet injury 1/3 x 1/3 cm. on the lateral aspect of left thigh in the upper part, 4 cms. below the left iliac crest. There was corresponding wound in the salwar, the shirt and banyan. The salwar, shirt and banyan were sealed and handed over to the police, the margins were inverted. The area around the wound was reddish, blackening was present and the injury was advised for X-ray.
14. He opined that the injury was caused by fire arm within a probable duration of 24 hours. He declared the injury simple.
15. On the same day at 9.30 a.m. this Doctor medically examined Modan Singh and found following injury on his person:--
1. There was a lacerated wound 2 cms. x 1/2 cm. x bone deep on the left side of forehead, just above the left eye-brow, 5 cm. lateral to the mid-line. There was clotted blood on the wound, X-ray was advised.
16. He opined that the injury had been caused by blunt weapon within a probable duration of 24 hours. He declared the injury simple.
17. On the same day at 9.45 a.m. this Doctor medically examined Mithu Singh and found following two injuries on his person:--
1. A lacerated wound 3 1/2 x 1 1/2 cms. x bone deep on the right side of fore-head lying obliquely involving right eye-brow on the medial side, which was 1 cm. lateral to the mid-line. There was clotted blood on the wound. X-ray advised.
2. An abrasion of size l/2x 1/3 cm. on the bridge of the nose. X-ray was advised.
18. He opined that the injuries had been caused by blunt weapon within a proble duration of 24 hours and the injuries were simple in nature.
19. This Doctor had further opined that injuries on the above mentioned persons could be caused between 10.00 and 11.00 p.m. and that injuries on the person of Mithu Singh and Modan Singh could be caused by brick bats.
20. Sub-Inspector Prem Chand arrested Gulab Singh and Labh Singh accused on 12-3-1990 and Mukhtiar Singh accused on 15-3-1990. He seized SBBL gun Ex. P19 and four cartridges of 12 bore vide recovery memo Ex. PS. After completion of investigation and other formalities the three accused were arraigned for trial on such like allegations for the murder of Makhan Singh and Pappu Singh. In order to prove its above referred case, the prosecution examined eight witnesses.
21. Injured eye witnesses Jagraj Singh. PW-6 and Smt. Lachho, PW-7 supported the version of the prosecution.
22. The three accused when examined by trial Court under Section 313, Cr.P.C., came forth with the plea of denial simpliciter and false implication. Mukhtiar Singh accused contended that he was arrested on 3-3-1990 at 6.00 a.m. from the Mini Bank, Jalana, in the presence of Jamna Dass, Sarpanch. The gun and cartridges which were more than four, where taken into possession by police. He stated that in fact a show was going on near the house of Gurbachan Singh on the occasion of the marriage of his daughter. Makhan Singh, Mithu Singh and Pappu Singh consumed liquor and tried to misbehave with the lady performers. Thereupon somebody from amongst the audience fired a shot causing injuries to the members of the complainant party. Dead bodies were later on shifted from the place of show to the house of Makhan Sing at the instance of Gurtej Singh and Jagraj Singh. Angrej Kaur, Lachho and other ladies were also present in the show and had received injuries on account of that firing. Labh Singh and Gulab Singh accused adopted his contention.
23. The accused appellants when called upon to lead evidence in defence examined Jamna Dass, DW-l and Surjit Singh, DW-2.
24. Jamna Dass, DW-l testified that about one year ago at about 6.00 or 6.30 p.m. Mukhtiar Singh who was armed with his gun, was taken away in the police jeep.
25. DW-2, Surjit Singh, Lambardar of the village has stated that there was firing in the show which was held on the occasion of marriage of the daughter of Gurbachan Singh. Pappu Singh and Makhan Singh died in that firing.
26. We have heard the learned Counsel for the parties besides perusing the reeord. It is the ease on both ends that Makhan Singh and Pappu Singh as also injured witnesses were present and witnessing the show organised on the occasion of the marriage of the daughter of Gurbachan Singh on the day of occurrence and that all of them had received gun shot injuries as a result whereof Makhan Singh and Pappu Singh died whereas PWs had received injuries. But both sides have given different versions about the place and manner of occurrence.
27. The prosecution version is that the occurrence had taken place firstly, in the street in front of the house of Makhan Singh and thereafter inside his house. On the other hand the defence version is that Makhan Singh and Pappu Singh had tried to assault a lady singer in the show under the influence of liquor, whereupon someone from the audience had opened fire as a result of which the PWs had received injuries whereas Makhan Singh and Pappu Singh had died. The defence version in the present set of circumstances is not plausible because it has come in evidence that 4000/5000 persons including males and female were present near the house of Gurbachan Singh witnessing the show. If the defence version to the effect that someone out of the audience had opened fire is believed then it is not plausible that the members of one family only i.e. PWs and the two deceased would be hit by the pellets. Moreover, Surjit Singh DW-2 has stated that distance between the audience and the stage was 10 feet. The ladies of the complainant, party were sitting behind the men folk. If that was so it does not appeal to reason that in random firing by some one in the crowd selected ladies and men of the complainant party alone would be hit. Moreover according to this witness Makhan Singh and Pappu Singh alone had under the influence of liquor proceeded towards the stage making assualt on the lady singer whereas rest of the spectators kept on sitting and had started running helter skelter only when the firing took place. Under these circumstances also it is very difficult to believe that members of a particular family only would be hit. Seen from any angle the defence i version cannot be said to be even probable.
28. We do not find any susbstance in the argument of the learned Counsel for the appellants that the prosecution has not brought the genesis of the occurrence on record because it has not been shown as to why the accused had abused Makhan Singh and Pappu Singh.
29. It is revealed in the evidence of PW-6 Jagraj Singh that wives of Makhan Singh and Mithu Singh were sisters inter-se. They also had another sister, namely, Smt. Golo. She was the wife of Mukand Singh who was the cousin of Mithu Singh. Mukhtiar Singh accused was carrying on with her. Makhan Singh and Mithu Singh (Sandus inter-se) used to stop Mukhtiar Singh accused from visiting Smt. Golo. The accused Mukhtiar Singh etc. and Makhan Singh were exchanging abuses under the influence of liquor. Thus the genesis of the occurrence has been clearly brought on the record by the prosecution.
30. It has been then urged by the learned Counsel for the appellants that the place of occurrence has not been fixed by the prosecution inasmuch as in the inquest report Ex. PF/3 relating to the dead body of Makhan Singh in the relevant column No. 22 it has not been mentioned that empty cartridge or brick bats were lying near the dead body whereas this column in the inquest report Ex. PG/1 in respect of the dead body of Pappu Singh has been left blank. Besides this, it is submitted that FIR number has also not been mentioned on the face of these documents which shows that the FIR had not seen the light of the day by the time these inquest reports were prepared.
31. We have given a thoughtful consideration to both these submissions and do not find any merit therein. It is nobody's case that either of the two deceased persons had died on account of pelting of brick bats. It is revealed in the evidence of the eye witnesses that Mukhtiar Singh had fired first shot in the street thereby hitting Pappu Singh and others. Pappu Singh was removed to the house of Makhan Singh and Mukhtiar Singh accused had fired the second shot from the roof of the kotha of the house of Makhan Singh into the court-yard below thereby hitting Makhan Singh. Dead body of Makhan Singh had also been removed to one of the rooms of his house. In view of the above circumstances the question of presence of empty cartridge case near the dead bodies does not arise. Inspector Prern Chand PW 8 had lifted two empty cartridge cases, one from the, street and the other from the roof of the Kotha of the house of Makhan Singh. This piece of evidence fully corroborate the prosecution version.
32. Non-mention of the number of the FIR on the face of printed pro formas is immaterial in view of the facts that brief facts of the case have been typewritten on separate sheets which have been attached to each of the two inquest reports. On these sheets F.I.R. number 86 dated 3-3-1990 under Section 302/34 I.P.C. and Section 25 of the Arms Act has been mentioned. In view of the above scrutiny of the evidence on record it cannot be said that the FIR in this case is inquest oriented.
33. Learned defence counsel has then argued that occurrence had taken place at 9.00 p.m. on 2-3-1990 in the abadi of village Jalalana. Police Station Kala Wall was at a distance of 10 kilometers but the FIR came into existence at 2.00 a.m. on the next day and special report was conveyed to Ilaga Magistrate at 5.00 a.m. on that day at Dabwali, which is at a distance of about 30 kilometers. This inordinate delay of about five hours had been utilized in spinning out a false version against the accused after introducing false witnesses. This argument is without any force. The delay has been satisfactorily explained by the prosecution in the statement of Jagraj Singh to the effect that they had borrowed a tractor of Mithu Singh for going to the police station which had gone out of order in the mid way, whereafter they had walked on foot via kachha road. They had left the village at 11-30 p.m. and reached the P. S. at about 1.00/ 1.30 a.m. However, possibility cannot be ruled out that time gap of five hours between the occurrence and lodging of the FIR was utilized in magnifying the number of accused.
34. The next attack on the truthfulness of the two eye-witnesses is that the medical evidence does not support their version. It has been urged that Dr. Bhagi Rath Guleria, who performed post-mortem examination on the dead body of Makhan Singh has stated that 22 rounds of metallic pellets and a card-wad was taken out from the dead body at the time of post-mortem examination which shows that the shot which had hit him had been fired from a close range and not from the roof of kotha as stated by the eye-witnesses. This argument is devoid of force. Examination of site plan, Ex. PJ shows that Mukhtiar Singh had fired a shot while standing at point '6' on the kotha of the house of Makhan Singh. This shot had hit Makhan Singh, who was standing in the courtyard. The height of this kotha had been shown as 8 feet. The length of the barrel of the gun was about 2 or 3 ft. Therefore, naturally the distance between the muzzle of the gun and the victim was less than 6 feet. It is now well settled that the metallic pellets and the wads travel with the short up to a distance of six feet, whereafter they start falling (refer page 65 of Major geral). Therefore, we are convinced that the shot fired by Mukhtiar Singh accused from his SBBL gun while standing on the roof of a 8 feet high kotha, had caused entry of wads and pellets into the body of Makhan Singh. That is how the same were removed from his dead body at the time of post-mortem examination.
35. The question doing rounds right now is as to whether all the accused persons shared common intention to kill Makhan Singh and Pappu Singh and to cause bodily injuries to the PWs. Mukhtiar Singh accused was employed in mini bank and had a gun. After the first occurrence the three accused had left the street in question. It was Mukhtiar Singh who took to his head to shoot down the two persons namely, Makhan Singh and Pappu Singh. It was he who brought his SBBL gun and came in front of the house of Jagraj Singh PW, with his co-accused and fired a shot hitting Pappu Singh and also injuring Jagraj Singh, Lachho and Angrej Kaur. The matter did not rest here. When the PWs removed Pappu Singh to the baithak of Makhan Singh on a cot and were present in the court-yard of his house, the three accused reached the roof of the kotha of Makhan Singh via their own house and from there accused Mukhtiar Singh fired a shot thereby hitting Makhan Singh. His co-accused namely, Labh Singh and Gulab Singh are alleged to have thrown kacha pacca bricks in the court-yard of Makhan Singh while standing at the kotha and raising lalkaras. It is the experience of the Courts that in this part of the Country Lalkara is invariably attributed in order to rope in other persons along with the principal accused. Inspector Prem Chand had got the place of occurrence photographed vide photographs Ex.PK/1 to Ex.PK/4. In none of these photographs, brick bats have been depicted. In photographs Ex. PK/2 and Ex.PK/4 full bricks have been depicted which cannot be said to be brick bats. Moreover, injury No. 5 of Jagraj Singh, injuries Nos. 5 and 6 of Angrej Kaur, and single injury on the person of Mithu Singh could not have been caused by full bricks if thrown from a height of 8. In cross-examination Dr. O.P. Chan-chania PW 1 has stated that injury Nos. 5 and 6 on the person of Angrej Kaur could be possible by rubbing with hard surface. This witness has stated in unambiguous terms that if the injury is caused by a brick bat the particles of brick bat and sand may remain on the wound; that he had observed the injuries on the persons of all the injured from close quarters but did not notice any such particles in any of the injuries. He has further stated that injury on the person of Modan Singh could be possible by a lathi blow and injury No. 1 on the person of Mithu Singh could be more likely by a lathi blow and that injuries on these two persons could also be possible by a fall on a hard surface. Besides what has been stated hereinbefore, the testimony of the Investigating Officer, Inspector Prem Chand PW-8 is also very material on this point. He had inspected the spot and lifted blood stained earth and two empty cartridge cases, one from the street and other from the roof of the kotha of Makhan Singh. He had also got photographs taken and had prepared rough sketch on the inquest report Ex.PF/3 but no point has been depicted therein where the brick bats were allegedly lying. Thus, in view of the fact that neither medical evidence nor the recovery of various articles support the part of the prosecution version that the two accused Labh Singh and Gulab Singh had pelted brick bats on the above mentioned persons, their presence at the spot at the relevant time and involvement in the occurrence has been rendered doubtful.
36. Coming to the involvement of Mukhtiar Singh accused we find that the evidence of injured eye-witnesses PW 6 Jagraj Singh and PW 7 Smt. Lachho stands fully corroborated by medical evidence and the recovery of the gun Ex.P-19, empty cartridge cases Ex.P17 and Ex.P.18, and the reports of the Forensic Science Laboratory, Madhuban Ex.PT and Ex.PT/1. Dr. Bhagirath Guleria who had conducted post-mortem on the dead body of Makhan Singh had found one injury on the. front of right shoulder and chest wall of the dead body. This injury has been dealt with in details in the earlier part of this judgment. The Autopsy Surgeon had recovered card wad from the right lung tissues. Few metallic pellets (rounded) were also recovered from both of the lungs. It is well settled that the over shot card-wad, when one is used, separates from the shot charge before a range of six feet is reached. This being so, the presence of an over shot card wad in the right lung tissues of the dead body of Makhan Singh provides very strong presumptive evidence, that the shot was fired by Mukhtiar Singh accused while he was standing on the kotha pointing the muzzle of his gun into the Courtyard down-wards aiming at Makhan Singh. Similarly, Mukhtiar Singh accused had fired a shot with his gun hitting Pappu Singh. Multiple lacerated wounds were found on the chest, abdomen, right upper limb and on right arm on his dead body. 12 pellets had been removed from various injured parts of the dead body by the Autopsy Surgeon Dr. Raj Kumar PW-3. Besides gun Ex.P19, empty cartridge cases Ex. P 17-18 card wad contained in vial Ex.P 8, pellets contained in vial Ex. P12 along with clothes of the deceased and the injured were sent to Forensic Science Laboratory, Madhuban. The same were examined and reports Ex. PT, PT/1 and P-T/2 were returned. Following result was conveyed vide report Ex.PT in respect of aims and ammunition :-
1. the 12-bore S.B.B.L. Gun W/1 is a fire arm as defined in Arms Act 54 of 1959 and was found in working order.
2. The crime cartridge cases C/1 & C/2 have been fired from the 12-bore S.B.B.L. Gun W/1 and not from any other firearm even of the same make and bore because every firearm has its own individual characteristic marks.
3. The mutilated pellets contained in parcel Nos. IV and V respectively could form part of the fired cartridge cases C/1 and C/2.
4. The felt was contained in parcel No. IV is of 12-bore size and could form part of the 12-bore fired cartridge case C/2 (Sellior Bellot make).
37. Human blood was detected on the blood stained earth and clothes of the deceased and injured PWs vide report Ex. PT/2.
38. From the above scrutiny of the evidence, it is established that Mukhtiar Singh accused had fired two shots from his gun Ex.P19, one in the street thereby hitting Pappu Singh, and the other in the court-yard at Makhan Singh. The act of firing the gun twice after aiming at the witnesses or the deceased clearly shows that the intention of the accused was nothing short of killing those persons. He, therefore, definitely had the intention to inflict the precise injuries actually suffered by Pappu Singh and Makhan Singh.
The said injuries, as discussed in the testimony of the two Autopsy Surgeons were found to be sufficient to cause death in ordinary course of nature in each case. Therefore, the ingredients of clause thirdly of Section 300, Indian Penal Code are fulfilled and the accused must be held guilty of murder punishable under Section 302, Indian Penal Code. The pellets had also hit Angrej Singh, Jagraj Singh and Smt. Lachho thereby causing injuries on their persons. If that act of the accused had caused death of these three persons he would certainly have been guilty of murder. Therefore, he was guilty of an offence punishable under Section 307, Indian Penal Code.
39. In view of our above conclusion, we acquit accused-appellants Labh Singh and Gulab Singh of the offences with which they have been charged. Mukhtiar Singh accused is acquitted of the offence punishable under Section 323 read with Section 34, Indian Penal Code. His conviction and sentence under Section 302 and Section 307, Indian Penal Code, as ordered by the trial Court is upheld.
40. Resultantly, Criminal Appeal No. 209-DB-1991 is partly accepted whereas Criminal Revision No. 488 of 1991 is dismissed.