PRITHVI SINGH Vs. STATE

JUDGEMENT

(1.) ACCUSED Prithvi Singh, son of Dayal Singh, Jat Sikh resident of Mohalla, District Ganganagar, has been convicted by learned Sessions Judge, Ganganagar, on November 25, 1967, under Section 302, I.P.C, and sentenced to imprisonment for life and to pay a fine of Rs. 100/ -∈ default of payment of fine to suffer rigorous imprisonment for a further period of two months. He has further been held guilty under Section 307, Penal Code, and sentenced to rigorous imprisonment for four years. He has also been convicted under Section 25, Indian Arms Act, and sentenced to rigorous imprisonment for one month. All the sentences have been directed to run concurrently. The other accused, Dayal Singh, father of Prithvi Singh, and Mai Singh, brother of Prithvi Singh, have been acquitted of the offences under Sections 302/34, and 307/34, Penal Code.

(2.) THE prosecution story can be ranged within a narrow compass. The accused Dayal Singh was on inmical terms with Gurumukh Singh. It is alleged that Ajaib Singh, son of Dayal Singh, had been assasinated sometime ago. In that case Dayal Singh wanted Gurumukh Singh to give evidence on behalf of the prosecution. The latter declined to do so. This created enemity between Gurumukh Singh and Dayal Singh. On November 24, 1966, at about 5 pm. the three accused, Prithvi Singh, Mai Singh and Dayal Singh went to Guiumukh Singh's thrashing floor, where he his son Raajeet Singh, and his 'Siri' JoginderSingh were working. Prithvi Singh was armed with a 12 bore gun. He was going ahead towards Gurumukh Singh's land. He was followed by the accused Dayal Singh and Mai Singh. The two accused asked Prithvi Singh not to spare Gurumukh Singh and others. When Prithvi Singh arrived at the place about 15 paces away from the thrasingh floor, he fired his gun towards Ranjeet Singh, resulting in certain injuries on his person. Soon after Prithvi Ssngh fired another shot, which hit Joginder Singh. An alarm was raised by Gurumukh Singh, whereupon Jagtar Singh and others rushed to the spot. Later on, the accused persons took to their heels. The injured Ranjeet Singh and Joginder Singh were taken in a jeep car to the Police Station, Kashrisinghpur, where first information report of the incident was lodged by Gurumukh Singh. Both the injured persons were then sent to the Primary Health Centre, Karanpur. Their injuries were examined by Dr. Joginder Singh P.W. 4, Medical Officer, that very day at about 11 p.m. following injuries were noticed on the person of Ranjeet Singh:

(3.) WE may first take up the first set of evidence. Learned Counsel for the accused has argued that Ranjeet Singh P.W. 1. was, no doubt, present on the spot, but according to him his face was towards the south whereas firing was done from the north -west, Ranjeet Singh received certain injuries at the place of the occurrence, According to the Doctor Joginder Singh P.W. 4, he sustained the injuries mentioned above. The duration of the injuries was within 24 hours and the injuries were caused by gun shot and were simple in nature. These injuries could have been the result of a single fire. In this context there can be no feeling of uncertainty that he was present on the spot. There is also nothing on the record to show that Ranjeet Singh had any axe to grind against the appellant. Ranjeet Singh has indubitably said in his statement Ex. D. 3 that when Prithvi Singh was about 10 paces away from him, Dayal Singh and Mai Singh threw a challenge. In the trial court he says that the distance between him and Prithvi Singh was 15 to 18 paces. The site inspection memo contains that the distance between 'A', where the witness was standing, and the spot marked 'F', where from Prithvi Singh fired, is 32 paces. From this inconsistency it cannot be inferred that Ranjeet Singh is a liar. He is a villager and the estimate given by him is based on a rough calculation. It cannot be concluded therefore that the assailant was inside Balbir Singh's Bara, shown in the site plan Ex. P.19, or that he might be standing in the nearby 'nullah'. It appears from Ranjeet Singh's deposition that the 'Nohra' of Balbir Singh is head -high. If some one else was in the 'Nohara' or in the nearby 'nullah', as shown in the plan, the pellets would have hit the upper portions of the bodies of the victim and not the lower ones. The witnesses positively stated that it is not a fact that the gun was fired from inside the'Nohna'of Balbir singh. Learned Counsel for the appellant has pointed out that Ranjeet Singh's face was towards the south and the gun was fired from towards the north west and as such he could not have seen the firer. The witness has deposed that when Prithvi Singh fired, his face was towards the south. He has further stated that immediately before the fire he was standing facing east. Later on he has said that at the time of the second fire he was facing towards Prithvi Singh and that the second fire was made within a minute or a half after the first fire. It was but natural for the witness that even if he was facing towards the south and the injury which he sustained was not his back, he would curiously look tack as to who was the assailant. At any rate, there is his positive statement that when the second fire was shot, he did see the accused Prithvi singh. He might have gone to the nearly 'Bara' situate, as shown in the site plan, at No. 17 where the blood stains were found, but that does not necessarily mean that he could not have seen Prithvi Singh, specially when the walls of the Bara were having a wall of 9' high only. Learned Counsel for the appellant has poinied out that it is in the evidence of the Station House Officer, Om Prakash, P.W. 5, that the empty cartridge was found at the place 'H' in the site plan. If Prithvi Singh was standing at the place 'F', the fired cartridge could not have been found at the place 'H'. In this connection suffice it to say that the empty cartridge after the first fire might have remained in the barrel or might have been discharged near the place where Prithvi Singh was standing. There is the possibility that the accused might have taken out the empty cartridge near the place where from the gun was fired, while reloading it. There is further possibility that the empty cartridge might have tossed upto the place 'H' before the recovery memo prepared. From the fact that empty cartridge was found at the place 'H', it cannot be inferred that the gun was not fired from the place 'F'. The 'nullah' is at a distance of 7 or 8 paces away from the place 'F', but there is no evidence to suggest that the firer was standing in the 'nullah'. It will, therefore, be preposterous to assume that the firer was either in the 'nullah' or in Balbir Singh's 'Nohra' and was not visible to Ranjeet Singh. Another argument stressed by learned Counsel for the appellant is that there was only one fire and that the story that the gun was fired twice is a tissue of lies. Ranjeet Singh has no doubt stated that he did not see the accused reloading the gun after the first fire. Dr. Joginder Singh has also said in his statement that if the dispersion is wide enough to cover both the injured persons, both of them could receive all the injuries by a single fire. According to learned Counsel Ranjeet Singh and Joginder Singh were on the same line and, therefore, bath of them could have been hit by one fire. Learned Counsel has further argued that in the dying declaration Joginder Singh has not deposed that two fires had been made. He has also pointed out that as there was enmity between Dayal Singh, on the one hand, Gurumukh Singh, on (he other, the second assault could, and ought to have been aimed at Gurumukh Singh, and not towards Joginder Singh. Had the gun been fired twice, two wads should have been found on the spot. In this connection, it may be stated that it is not necessary that Ranjeet Singh should have been the reloading of the gun. Ranjeet Singh was shot at. It was, therefore, expected of him to have immediately found out as to who the firer was and then to run away for self -preservation. The gun must have been reloaded soon after the first fire and Ranjeet Singh might not have in that hurry seen the accused in doing so. A man in that position could not have minutely discerned the act of reloading. Dr. Joginder Singh P.W. 4, has positively stated that both the injured received their injuries by 4 pellets in all. Ranjeet Singh received injuries on his back and that both the injuries could not have been caused by one shot. In the dying declaration Ex. P. 5, recorded by the Sub -Divisional Magistrate, Karanpur, on November, 25, 1966, there is no insertion that there were two fires It is in the prosecution evidence of Dr. Joginder Singh, P.W. 4, that at the time of making the dying declaration, the condition of the deponent was deteriorating and grew serious. It was, therefore, hardly possible for him to make a detailed dying declaration. At any rate, he has not s