A.D. Koshal, J.
1. For shooting down dead Aik Singh, a Youngman of 22 or 23 years of age and a resident of village Ismalia in Police Station Sampla, three of his co-villagers, namely, Partap. aged 32 years, his brother Dalip, aged 42 years, and the latter's son Om Parkash, aged 19 years, were jointly tried by Shri Gur-nam Singh. Sessions Judge, Rohtak. All three of them were charged with an offence Under Section 302 read with Section 34 of the Indian Penal Code. Om Parkash, who was alleged to have fired the fatal shots from a double barrel gun, was separately charged with an offence Under Section 302 of the Code, has been convicted thereof, and has been sentenced to death. Partap and Dalip have been acquitted of the charge against them.
The judgment of the learned Sessions Judge is dated the 20th of February, 1970, against which om Parkash has filed Criminal Appeal No. 256 of 1970 which we are hereby disposing of along with Murder Reference No. 13 of 1970 made by the learned Sessions Judge for confirmation of the sentence of death.
2. The pedigree-table given below lends assistance in appreciating the facts of the case,
SIS RAM F_________________________________ _____________________________________| | | | | | Surta Hari Singh Bhagwani = DuliChand Bhagwani = Desa = Kesar(P..W. 5) (P W. 9) (P.W. 1) (P.W. 1)| | |Sahabo = Aik Singh Rajwanti Philpati (P.W. 8) (P.W. 6)
It was after the death of her first husband Duli Chand that Shrimati Bhag-wani (P.W. 1) married his brother Desa.
3. The Prosecution case may be stated thus. In April, 1965, Azad, a son of Dalip accused and a brother of the appellant, was murdered and, on the basis of first information report Exhibit P. J., Aik Singh deceased was prosecuted in consequence but was acquitted on the 30th of November, 1965, by the Sessions Judge, Rohtak.
In the second week of May. 1969, was celebrated the marriage of Raiwanti. daughter of Shrimati Bhagwani (P.W. 1) from her second husband Desa, and in that connection Aik Singh deceased, who was a military hand, had come to village Ismalia on leave. After the marriage celebrations, the marriage party left the village on the morning of the 12th of Mav, 1969, and Shrimati Phulpati (P.W. 6) accompanied by the deceased, his wife Sahabo (P.W. 8), Shrimati Bhagwani (P.W. 1). Hari Singh (P.W. 9) and Surta (P.W. 5) went to the Gandhra Railway Station, to catch the 1 p. m. train on that date for her own village. The deceased was heading the party and went to the window of the Booking Office to purchase a ticket for Shrimati Phulpati (P.W. 6). By then the three accused, of whom the appellant was carrying a gun and Dalip a jaili, had arrived at the railway station and the appellant was exhorted by his two companions to fire at Aik Singh which he did, hitting the deceased on the right shoulder. Exclaiming 'hai mar gaya' Aik Singh fell down. Shyam Murari Lai Sirivastav (P.W. 21). who was the Booking Clerk issuing the tickets, heard the shot and also the moan 'hai mar gaya' and at once closed the booking window. The appellant then fired another shot at Aik Singh hitting him in the left side of the face. Thereafter all the three culprits ran awav towards the village, the appellant shouting that if anv one followed them, he would be shot at.
Aik Singh was found dead by his relations who had accompanied him to the railway station. Shortly afterwards the train by which Shrimati Phulpati (P.W. 6) was to travel arrived and it was then that the Booking Clerk came out of the Booking Office and saw the dead bodv surrounded by Shrimati Bhagwani (P.W. 1), Shrimati Sahabo (P.W. 8), Shrimati Phulpati (P.W. 6) and the two maternal uncles of the deceased. Imme- diately thereafter he contacted Shiv Shanker Lai, Section Controller, Northern Railway, New Delhi (P.W. 4) on telephone and told him that a murder had been committed at railway station Gandhra. This message was received by Shiv Shanker Lai (P.W. 4) at 1-14 p. m. (although the Booking Clerk says that he gave it at 1-25 p. m.) and was passed on at 1-20 p. m. to Kuldev Singh, Assistant Station Master, Railway Station, Rohtak (P.W. 3) who in turn transmitted it to Assistant Sub-Inspector Sada Rang, Incharge Police Post Railway, Rohtak (P.W. 23) through chit Exhibit P.C. which reached the latter at 1-30 p. m.
Assistant Sub-Inspector Sada Rang (P.W. 23) arrived at the Gandhra Railway StatiDn at 2.55 p. m. on the same dav and found lying near the booking window the dead body of Aik Singh surrounded bv his relations mentioned above. He recorded the statement (Exhabit P. A.) of Shrimati Bhagwani (P.W. 1) which was completed at 3-30 p. m. The Assistant Sub-Inspector prepared the inquest report and despatched the dead body to Rohtak under the escort of Constable Bagicha Singh (P.W. 13). Bloodstained earth was secured by the Assistant Sub-Inspector from the place where the dead body had been found.
Statement Exhibit P. A. was carried by the 6-30 p. m. train by Dharam Pal Singh, Rakshak R. P. F. (P.W. 14) to Jind where formal first information report Exhibit P. A./l was recorded on the basis thereof at 9-35 p. m. by Head Constable Fateh Chand (P.W. 22) at the Railway Police Station. A copy of the first information report was brought by Dharam Pal Singh (P.W. 14) back to Gandhra where he delivered it to the Assistant Sub-Inspector. As there was no constable available at the Jind Railway Police Station, the special report was entrusted by Head Constable Fateh Chand (P.W. 22) to the 'Guard' with the direction that the latter should hand it over at the Railway Police Post. Rohtak, next morning at 7 A.M.' This was the course adopted by the Head Constable even though Dharam Pal Singh (P.W. 14) had to travel back to Gandhra via Rohtak. The special report was received by the Ilaqa Magistrate at Rohtak on the 14th of May, 1969, at 10-15 A. M.
Constable Bagicha Singh (P.W. 13) reached Rohtak with the dead body at about 8 P. M. on the 12th of May, 1969,where it was kept for the night in the premises of the Medical College & Hospital (and not in the 'dead-house') because the Constable was unable to contact anv Medical Officer till the next dav.
The autopsy was performed on the 13th of May, 1969, from 11-50 A. M. on wards by Dr. P. N. Chhabra, Chief Medical Officer (P.W. 2) who found on the dead body various injuries which he has described thus:
1. Lacerated wound, 1' x 1/2' iust outer to mouth, left side. The edges of the wound were tattooed and there was deposit of the burnt powder on the skin around. Internally this wound was directed upwards and backwards to the skull.
2. Elongated lacerated wound, 1/2' X 1/5', on the left cheek. The edges were charred and tattooed. Internally the wound was directed backwards and downwards.
3. Oblique lacerated wound, 1/2' x 1/5', half inch below the left ear. Wounds Nos. 2 and 3 were through and through.
4. Three contused wounds, 1/3' x 1/4', each on the front of the left shoulder. They were muscle deep. There were corresponding rents on the shirt. The wounds were in transverse line, small pellet was found in the middle wound.
5. Lacerated penetrating wound, 1' x 1', just below the tip of right shoulder. The wound was directed internally downwards, inwards and backwards.
Scalp was contused in the occipital region. The temporal, occipital and base of the skull were fractured.
There was a fracture of first and second cervical vertebrae.
A metallic piece was found sticking to the sixth thoracic vertebra on the right side. Two such pieces and five pieces of wad were recovered from the occipital lobe of the brain. The left lower jaw had suffered a comminuted fracture and the teeth were lying loose in the mouth cavity, Injuries Nos. 1 and 5 were found individually sufficient in the ordinary course of nature to cause death and Dr. Chhabra gives the following details about the direction which these two injuries had taken:
Internal direction of wound No. 1 was from external side to the first and second cervical vertebrae to the skull occipital region, i.e., upwards, backwards and slightly outwards. The internal direction of wound No. 5 was from right shoulder to neck of the humerus to the axillary region to the fourth rib to the lower lobe of right lung and the matallic piece stuck up in the sixth thoracic vertebra, i.e., downwards, inwards and backwards.
In the opinion of the doctor injuries Nos. 1 and 2 had resulted from gun-fire proceeding from a very close range. According to him, injuries Nos. 2 and 3 had resulted from one and the same shot.
Dalip accused was arrested on the 13th of May, 1969, and his two co-accused on the 17th of May, 1969. At the time of his arrest Partap accused produced gun Exhibit P. 3 to Head Constable Badri Par-shad (P.W. 18).
The appellant was interrogated on the 23rd of May, 1969. by Sub-Inspector Anant Ram (P.W. 20) and made a disclosure in pursuance of which were recovered two empty cartridges (Exhibits P. 5 and P. 6) from a place lying near a cane-crusher in the area of village Is-malia.
The earth secured by Assistant Sub-Inspector Sada Rang (P.W. 23) from the place where the dead body had been lying was found to be stained with human blood.
4. Twenty seven witnesses were examined at the trial, four of them on affidavits. They included the five eve-witnesses, namely, Bhagwani (P.W. 1). Surta (P.W. 5), Phulpati (P.W. 6). Sahabo (P.W. 8) and Hari Singh (P.W. 9), all of whom gave the same version of the occurrence as has been set out above. Corroboration for their testimony was sought by the prosecution in the deposition of Shvam Murari Lai (P.W. 21) who asserted that just as he was closing the account after issuing tickets for the 12.55 P. M. train on the 12th of May, 1969, a person appeared at the booking window and simultaneously he heard the report of gunfire followed by the moan 'hai mar gaya'. This, according to him, made him close the window at once. He added that there was another report of gunfire, that shortly afterwards the train arrived whereafter he opened the door of the Booking Office and saw a dead body lying in a pool of blood surrounded by three ladies and two men who were shedding tears. He went on to say that on his enquiry he learnt that the deceased was Aik Singh by name, that the two men were his maternal uncles and that the three ladies were his mother Bhagwani, his wife and his sister. The witness claimed to have contacted Shiv Shanker Lai (P.W. 4) at Delhi on telephone, to have told him that a murder had been committed and to have asked him that police be despatched to the Gandhra Police Station immediately. He further stated that he had deputed Gainda (P.W. 11), who had alighted from the train, to keep a watch on the dead body and that the police arrived at the scene of occurrence bv the 2.55 P. M. train and started investigation during the course of which they recorded his statement.
The prosecution also relied on statement Exhibit P. A. in corroboration of the deposition of Shrimati Bhagwani (P.W. 1) containing as that statement does substantially the same version of the occurrence as has been detailed above as part of the prosecution case. Further support for the ocular testimony was sought by the prosecution from the medical evidence as well as the recovery of gun Exhibit P. 3 and empty cartridges Exhibits P. 5 and P. 6.
5. When examined in pursuance of the provisions of Section 342 of the Code of Criminal Procedure, the appellant and his co-accused did not deny their relationship inter se and further admitted that on the dav of the occurrence Aik Singh was on leave from the army and present at village Ismalia in connection with the marriage of his step-sister Rajwanti and that the facts forming the motive part of the prosecution storv were correct. AU the other allegations made against them by the prosecution were denied by them in toto and they all took the stand that they had been falselv implicated in the present case. No evidence was adduced in defence.
6. The facts constituting the mo tive part of the prosecution storv bein2 admitted on all hands, the learned Sessions Judge held them proved and concluded that the accused must have been nursing a grudge against Aik Singh ever since his acquittal in the case arising from the murder of the appellant's brother named Azad. He was further satisfied aboul the presence of all the five eye-witnesses at the time and scene of the occurrence, such presence, according to him, being quite natural in view of the situation that Rajwanti's marriage was over with the result that the guests attending it were bound to leave for their respective places of residence sooner or later, that there was no dispute about the place where Aik Singh was done to death, i.e.. the verandah. opposite the booking window at Railway Station Gandhra and that, therefore, there was no reason not to accept the assertion of Phulpati (P. W 6) and the four eye-witnesses to the eff ect that they and Aik Singh had all gone to see her off at the railway station. For this assertion he found independent corroboration in the testimony of Shavam Murari Lai (P.W. 21) who had not onlv heard the two shots but had also found all the five eye-witnesses seated around the dead body as soon as he came out of the Booking Office immediately after the arrival of the train.
For the proposition that none of the five eye-witnesses was present at the occurrence and that all of them had reached the railway station after news had been carried to their house by some unknown person about the murder, reliance was placed by the defence on the deposition of Gainda (P.W. 11) according to whom the persons examined by the police had come to the railway station before the arrival of the police and also thereafter and that persons of the former class had reached the railway station only half an hour before such arrival. No importance was, however, attached bv the learned Sessions Judge to this part of the testimony of Gainda (P.W. 11) which he considered to be 'certainly an improve ment' in view of the statement of the witness in examination-in-chief thai when he was deputed to keep a watch over the corpse, 'many persons were present near the dead body at that time'.
The learned Sessions Judge also noted the fact that in his statement to the police Gainda (P.W. 11) had asserted that the mother, the sister, the wife and two maternal uncles of the deceased were sitting near the dead bodv and that thev were present when the police arrived. With this statement the witness had been confronted at the instance of the public Prosecutor who was allowed to cross-examine him. The testimony of Gainda (P.W. 11) is so far as it tended to lend support to the defence case was considered untrustworthy and insufficient to cast a doubt about the presence of the eve witnesses at the time and place of the occurrence. Another contention raised on behalf of the accused and turned down by the learned Sessions Judge was that the non-production of any person unrelai ed to the deceased was fatal to the pro' secution case inasmuch as numerous inde pendent witnesses must have been present at the railway station when the tragedy occurred.
It was pointed out to him that while in the witness-box the eye-witnesses took the stand that Aik Singh fell after he was fired upon once and that the second shot was discharged after he had fallen down. no such thing occurred in their statements to the police wherein all that thev said on the point was that two shots were fired at Aik Singh who fell down in consequence. The discrepancy was brushed aside by the learned Sessions Judge as not a material one. It was argued before . him that the injuries found on the dead body could not have been caused in the manner in which they are claimed by the eye-witnesses to have come into existence and that all such injuries had not been explained. The argument was repelled with the remark that according to the autopsy Surgeon, the iniuries had ' resulted from gunshots and that his state ment is corroborated by the statements of the eye-witnesess and not denied bv the defence even that Aik Singh died due to gunshot injuries'. The first informa tion report was attacked before him as a document which had come into existence much later than it purported to have and reference in this connection was made to the fact that the special report reached the Ilaka Magistrate at Rohtak no earlier than 10-15 A. M. on the 14th of May, 1969, i.e. about 45 hours after the occurrence.
The learned Sessions Judge, however, held that statement Exhibit P. A. was made by Shrimati Bhagwani (P.W. 1) to Assistant Sub-Inspector Sada Rang (P W. 23) as soon as he reached Gandhra Railway Station and that for the dela in sending a copy of the first informa tion report to the Ilaqa Magistrate, the responsibility was that of Head constable Fateh Chand P.W. 22 who had failed to discharge it properly. Another fact point ed out in this connection was that the dead body and the inquest report were delivered to Dr. P. N. Chhabra no earlier than 11-30 a. m. on the 13th of May, 1969, even though constable Bagicha Singh (P W. 13) claimed to have reached the Medical College and Hospital, Rohtak, no latei than 8 p. m. on the previous evening. The learned Sessions Judge attached no importance to this fact either, in view of the explanation given by Constable Bagicha Singh (P.W. 13) that he could not find any doctor in the hospital till about mid-day on the 13th of May, 1969.
It was in these premises that the learned Sessions Judge found the prosecution case to have been proved beyond reasonable doubt, no significance havine been attached by him to the recover v oJ articles Exhibits P. 3, P. 5 and P. 6 in view of the fact that no conncetion between them inter se was shown to exist. Nevertheless he thought that no case for the application of Section 34 of the Indian Penal Code was made out and that Par-tap and Dalip accused had not been proved to have committed any offence. Thai is why he acquitted them both while convicting and sentencing the appellant as aforesaid.
7. The evidence of Booking Clerk Shy am Murari Lai (P.W. 21) coupled with that of Assistant Sub-Inspector Sada Rang (P.W. 23) who found the dead body lying at a place in the verandah covering the window of the Booking Office, leaves no room for doubt that Aik Singh lost his life at that place. Shavam Murari Lai (P.W. 21) is a wholly independent witness and we are of the opinion, as was the learned Sessions Judge, that he has given in the witness-box an unbiased and untarnished version of what he saw although it cannot be gainsaid that he might have made a mistake here and there due to lapse of memory or faulty observation. He claims to have been the sole official incharge of the Gandhra Railway Station and this fact is not disputed before us. We have 1971 Cr.L.J./48 thus no hesitation in taking him at his word when he states that he was sitting inside the Booking Office against the booking window closing the account after having issued tickets for the 12-55 p. m. train when a person (presumably Aik Singh) appeared at the window and simultaneously the Booking Clerk heard the report of gunfire as well as the moan 'hai mar gaya' and closed the window, that immediately afterwards he heard the report of another gunfire and that when he came out of the Booking Office after the arrival of the train, he found the dead body of Alik Singh lying against the Booking window with the five eve-witnesses crying around it. In this view of the matter, we too are not prepared to rely on anything that Gainda (P.W. 11) might have said to the contrary.
With the conclusion iust arrived at Mr. Sibal, learned Counsel for the appellant, also did not have much quarrel. He contended, however, that the eve-witnesses were not present at the time and place of the occurrence, that they were called to the railway station, which lies at a distance of only a furlong and a half from village Ismalia as stated by Assistant Sub-Inspector Sada Rang P.W. in his note relating to the inspection of the spot and forming part of the inquest report (although Shrimati Bhagwani P.W. describes it as 'about half a mile'), after they had been informed about the occurrence and that they reached the railway station before Shayam Murari Lai (P.W. 21) emerged from the Booking Office. In this connection he placed reliance not onlv on the f~ t that the first information report rea> ed the Ilaqa Magistrate at Rohtak as te as 10-15 a. m. on the 14th of May, 19i but also on the medical evidence whic according to him, is explainable oi ' on the theory that Aik Singh was not fired at twice but four times and then not from one and the same gun but from two different guns. In this connection he also claimed that all the eye-witnesses had improved the story as put forward by them to the police which was to the effect that Aik Singh had fallen down after he had received the two shots while in the witness-box every one of them was sure that he fell down after the first shot and was fired upon for the second time while lying on the ground. This, according to Mr. Sibal, indicated a very clear attempt on the part of the eye-witnesses to mould their testimony so as to make it, according to ther light, conform to the medical evidence-an attempt which they would not have indulged in, claimed Mr. Sibal, if they had actually witnessed the occurrence.
We have given our most careful consideration to the various arguments advanced in support of the contention but find ourselves unable to agree therewith for the reasons hereafter following.
8. According to Shayam Murari Lai (P.W. 21), the first shot was fired at about 1-15 p. m. and he came out of the Booking Office exactly seven minutes later, i. e., at 1-22 p. m. when he found the five eye-witnesses surrounding the corpse. During this interval of 7 minutes, it is certainly in theory possible for a person to run from the railway station to village Ismalia and also return to the railway station in the company of the five eye-witnesses, the distance to be thus covered beinfi only 3 furlongs. But then this mere possibility cannot be converted into a certainty unless cogent reasons for doing so exist. Such reasons, in our opinion, are absent and, on the other hand, there are factors which persuade us to believe without a shadow of doubt that the five eye-witnesses were also at the railway station, as was Aik Singh, when the latter was fired at. In this connection it has to be borne in mind that the dispersal of the guests after the marriage ceremony is only something natural.
The eye-witnesses claimed that it was to see off Phulpati (P.W. 6) that the others of them as well as the deceased had gone to the railway station. There is no evidence at all to the contrary. On the other hand, there are indications that the claim is well founded. In this connection reference may be made to the deposition of Shrimati Bhagwani (P.W. 1) during the course of which she asserted that Phulpati (P.W. 6) had a bundle with her and it was only she and her children who were to catch the train, to the testimony of Phulpati (P.W. 6) herself wherein she stated that her two daughters, aged 4 and 1, were also with her at the time of the tragedy and to the averment made in the witness-box by Hari Singh (P.W. 9) that her two minor children were accompanying Phulpati P.W. who also had with her a small bundle which was carried by Sahabo P.W. The unanimity of these three witnesses on the point is significant and goes to show with & high degree of probability that it was Phulpati (P.W. 6) whom the rest of the party had gone to see off, so that not only Phulpati (P.W. 6) but also some other members of the family would be expected to be present at the railway station when Aik Singh went to the booking window presumably to purchase a ticket for her.
The circumstances in and the purpose for which the whole party is said to have visited the railway station are thus fully acceptable and with this conclusion, coupled with the presence of the five eve-witnesses near the dead body at the time when the Booking Clerk came out of his office, the fact that they witnessed the tragedy becomes more or less unassailable. Even though, therefore, all these witnesses are close relations of the deceased there is no reason for us to hold that thev have falsely implicated the appellant in the present case; for, thev would be the last persons to substitute an innocent individual for the real culprit if thev had first-hand knowledge of who he was. Their evidence, therefore, we consider to be based on the truth.
As already noted, the special report reached the Ilaqa Magistrate not earlier than 10-15 A. M. on the 14th of May, 1969. The police official or other person who delivered it has not been put into the witness-box. According to Head Constable Fateh Chand (P.W. 22) who recorded the formal first information report, a copy thereof was handed over by him to the 'Guard' with the direction that the latter should deliver it at the Railway Police Post. Rohtak, next morning at 7-00 A. M. It is not known whether the 'Guard' carried out the direction or not. Nor has any plausible explanation been put forward for Head Constable Fateh Chand (P.W. 22) not entrusting Dharam Pal Singh (P.W. 14). who had to travel back to Gandhra via Rohtak, with the special report. Again, the entry made in the daily diary (Exhibit D. B.) in connection with the recording of the first information report does not give the substance thereof but only mentions that it was based on a statement of Shrimati Bhagwani (P.W. 1) and had been despatched by Assistant Sub-Inspector Sada Rang (P.W. 23) through Dharam Pal Singh (P.W. 14) 'in respect of human murder Under Section 302/34'.
Besides, the dead body and the inquest report prepared in relation thereto by Assistant Sub-Inspector Sada Rang (P.W. 23) were not delivered to the autopsy Surgeon, earlier than 11-30 A. M. on the 13th of May. 1969. The normal guarantees for the first information report having been lodged at the time at which it purports to have been recorded are thus all missing in the present case; but in view of the conclusions reached above, we are firmly of the opinion that their non-existence merely indicate gross negligence on the part of the police officials concerned in the discharge of their duties rather than the probability of statement Exhibit P. A. not having been completed at 3-30 P. M. but later for the reason that no eye-witness of the occurrence was forthcoming and the prosecution story was reconstructed on the basis of available circumstantial evidence and suspicions. Phulpati (P.W. 6). as we have already held, must have been present at the railway station when Aik Singh was fired at and so must also have been the other eye-witnesses for the purpose of seeing her off. Having actually witnessed the tragedy, there was no reason why Shrimati Bhagwani (P.W. 1) should not have given details of the occurrence to the Assistant Sub-Inspector as soon as he arrived at the Gandhra Railway Station. We hold, therefore, that although state ment Exhibit P. A. was completed at 3-30 P. M. and was despatched through Dha-ram Pal Singh (P.W. 14) to Jind Police Station where it was made the basis of the first information report by Head Constable Fateh Chand (P.W. 22), it was due to bungling on the part of the police officials that the special report did not reach the Ilaqa Magistrate nor was the dead body delivered to the autopsy Surgeon as soon as the same should have been.
The eye-witnesses are all unanimous in deposing that Aik Singh was felled to the ground by the first shot and that the second shot was fired at him while he was lying fallen. Barring Hari Singh (P.W. 9), all of them were confronted with their respective police statements wherein all that they had averred in this connection was that the appellant fired two shots at Aik Singh who fell down in consequence in front of the booking window saying 'hai mar gaya' and died. We cannot see haw, as was contended by Mr. Sibal, the four eye-witnesses iust above mentioned can be said to have made any improvement at the trial over the story put forward by them to the police. Their stand at the investigation stage was that two shots were fired by the Appellant at Aik Singh and that Aik Singh fell down in consequence and died. That stand remains unchanged at the trial, although they give a little more of its detail which is only natural; for, the statements made by various persons to the police have no encyclopedic character and numerous details, which may well have been missed at the investigation stage by them, are elicited at the trial through process of examination and cross-examination. Nor do we find that the prosecution stands to gain anything by the so-called improvement inasmuch as the gunshot injuries found by the autopsy Surgeon on the dead body of Aik Singh could all have been caused while he was standing when fired at, and ducked to save himself, as also if he was lying on the ground. This part of the contention of Mr. Sibal must, therefore, be repelled.
9. It is only the medical evidence which remains to be considered to complete an examination of the contention of Mr. Sibal that the eye-witnesses had not seen the occurrence. He reasons in support of the argument that at least four shots were fired at the deceased and those too with at least two different firearms may be listed thus:
(a) The edges of injury No. 2 detailed in the deposition of Dr. P. N. Chhabra (P.W. 2) were found by him to be charred and tattooed while none of the other wounds had that characteristic. Injury No. 2 was, therefore, caused by a shot fired from a distance of less than 2 feet while none of the other injuries could be said to have been fired from such close range.
(b) Injury No. 4 consisted of 3 contused wounds, each having the dimensions 1/3' x 1/4' and being muscle-deep only, A small pellet was found embedded in the middle of these three wounds. From this data it will be reasonable to conclude that the three pellets, which caused the three wounds, must have practically spent up their momentum before they struck the victim and that the shot which discharged them must, therefore, have been fired from a much longer distance (say 30 feet or above) than any causing the other injuries.
(c) Injuries Nos. 2 and 5 had obviously not resulted from one shot. In this connection the direction which they took as well as the presence of tattooing in one and the absence thereof in the other are material considerations. This aspect of the matter is of course one which is adopted by the prosecution also as correct.
(d) The dimensions of injury No. 5 indicate that the missile, which caused it, must have had a minimum diameter of 1' which could not have been possible in the case of a projectile proceeding from a cartridge fired from a shotgun.
Support for these reasons was sought by Mr. Sibal from the testimony of Dr P. N. Chhabra (P.W. 2), the relevant portions whereof are set out in extenso for facility of reference:
The range for injuries 1 and 2 may be slightly different. I agree with the proposition that in case of scorched entry wound, the muzzle of the fire-arm should not be more than one foot from the wound of an entry. In the case of tattooing the muzzle of the gun may be from one to three feet. In the case of a fire made from a distance of one foot to even three feet the shots will enter more of less en-masse. I did not find any other pellet or metallic pieces from the brain in case of injury No. 1. The wads would also enter if the shots are fired from a distance of one foot. In the case of injury No. 2 all the shots and the wads, i.e., the whole charge seem to have passed out from injury No. 3. Injuries Nos. 1 and 2 may have been the result of either one or two shots. I cannot refute the suggestion that injuries Nos. 1 and 2 are the result of two shots. I cannot remember the intervening distances between the three wounds on the left shoulder, but they were near each other. I did not find any pellet in the other two wounds on left shoulder on examination. In this case the victim and the assailant must be facing each other, i.e., when injury No. 4 was received.* * * ** * * *
I cannot say the approximate distance from which injury No. 5 was caused. Injury No. 5 was oval in shape. The wound of entry in the skin would be smaller than the size of a regular pellet. The projectile which caused injury No. 5 may be of the size of above one inch in length. If the projectile is round it may be one inch in diameter or the outer measurement of the projectile may be about one inch. I did not find any other part or whole of the shot from the body in case of injury No. 5.
(Cross-examination by Shri R. L. Kohli, Advocate.)
In case of injury No. 4, the force with which the projectile struck was small. The same fire-arm if fired from a distance will be lesser destructive than when fired from a shorter distance. In case of injury No. 5 the muzzle of the gun was higher than the seat of the injury.' As we did not find ourselves in agreement with the above opinion in some of its aspects, especially that covering the type of projectile which caused injury No. 5 we had the entire matter examined by Dr. B. R. Sharma, Director, Forensic Science Laboratory, Chandigarh, to whom gun Ex. P. 3 and the projectiles recovered from the dead body were made over for observation and opinion, he being a ballistic expert who was examined as C. W. 1. He was of the view that injuries Nos. 1 to 4 could have been caused by a single shot fired from gun Exhibit P. 3 and that injury No. 5 could have resulted from another shot discharged from the same gun. He was subjected by Mr. Sibal to a lengthy and searching cross-examination during the course of which he made the following points:-
(1) Injuries Nos. 1 to 4 could have been caused thus. The shot was fired from the left side of the deceased from a distance of about 3 to 8 feet. The left shoulder of the victim was nearest to the muzzle of the gun and his head and face were turned towards the left. Three of the pellets caused injury No. 4. Two of them and the wads caused injury No. 1 and a single pellet resulted in injuries Nos. 2 and 3.
(2) Injury No. 5 was caused by a shot from a distance of 2 to 5 feet, so that the charge entered en masse, although the whole of it was not recovered from the dead body. Tattooing and blackening should have been present in the case of this injury. The opinion of Dr. Chhabra (P.W. 2) that this injury was caused by a projectile having a diameter of about 1', is not correct.
(3) In the case of both the shots, the ammunition used could have consisted of L. G. cartridges.
(4) Charring is more often than not confused with the deposit of dirt around the wound or with contusions caused bv -the impact of the projectile. Tattooing would be observed in the case of a wound caused by a shot fired from a distance of between 3 to 8 feet.
(5) Injuries Nos. 1 to 4 could not have been caused by a shot fired from a distance of 'within 2 feet'. This opinion is based on the impossibility of injuries Nos. 2 and 3 having been caused by a separate shot.
(6) In the case of injury No. 4. the pellets skipped. If they had entered the body at the seat of the injury, the damage caused would have been extensive. On the left shoulder part of the shirt of the deceased were observed five holes, three of which indicated entrance of the pellets and two their exit, two of the former being in line with the latter and the fifth one being very small in size with its location just above the other two entrance holes.
(7) The phial said to contain the small pellet recovered from one of the wounds comprised in injury No. 4 had inside it only pieces of dried blood and no pellet.
The science of ballistics on which the testimony of Dr. Sharma (C. W. 1) is mostly based attaches quite some importance to the factors determining the distance from which a fire-arm causing a particular injury was probably discharged and we think it only right to take note at this stage of standard treatises on the subject. Reference may be made with advantage to the following passages appearing at pages 236 and 237 of Modi's Medical Jurisprudence and Toxicology (1969 Edition):
The effects produced by small shot fired from a shot-gun vary according to the distance of the weapon from the body, and chocking device. A charge of small shot, fired very close to, or within a few inches, of the body enters in one mass like a single bullet making a large irregular wound with scorched and contused edges, and is followed by the gases of the discharge which greately lacerate and rupture the deeper tissues. Particles of unburnt powder expelled from the weapon behind the missile are driven to some distance, through the wound, and some of them are found embedded in the wound and the surrounding skin which is also singed and blackened by the flame and smoke of combustion. The exist wound of a close range shot shows greater damage of tissues than the entrance wound, the margins are everted, but there is no evidence of blackening or singeing. At a distance of one to three feet small shot make a single aperture with irregular and lacerated edges corresponding in size to the bore of the muzzle of the gun. as the shot enter as one mass, but are scattered after entering the wound and cause great damage to the internal tissues. The skin surrounding the wounds is blackened, scorched and tattooed, with unconsumed grains of powder. On the other hand, at a distance of six feet the central aperture/ is surrounded by separate openings in an area of about two inches in diameter made by a few pellets of the shot which spread out before reaching the mark. The skin surrounding the aperture is not blackened or scorched, but is tattooed to some extent. At a distance of twelve feet the charge of shot spreads widely and enters the body as individual pellets producing separate openings in an area of five to eight inches in diameter, but without causing blackening, scorching or tattooing of the surrounding skin. At a distance of about 50 feet a pattern measuring about 14 inches from a fully chocked barrel and about 28 inches from an un-chocked barrel are produced and at about 100 feet the spread pattern on the target is about 30 inches from a fully chocked barrel and 50 inches from an unchocked one. The scattering of shot depends upon the size of the gun, the charge of the powder and the distance of the gun from the body. As the distance increases, the damage caused by a single pellet diminishes, until at about 30 feet, it is only capable of penetrating the clothes and skin of the victim.
* * * ** * * *If over shot cardwad is found in the wound it indicates that the shot was fired from less than two yards while its absence suggests more than two yards.
In conclusion it must be noted that it is not easy to give a definite opinion about the distance from which a firearm was discharged. According to Tavlor's Principles And Practice of Medical Jurisprudence, Ed. X, Vol. I, p. 441, no general rule can be laid down.
This is what John Glaister savs on the subject at pages 244 to 247 of his work of the same name (1962 Edition):
These weapons have for their projectile, collections of small shot which vary in size, depending upon the type of cartridge employed. The small shot or lead pellets are held in position by wads, one placed between the powder and shot charges, the other on the top of the shot charge, and held in position by the end of the stDut paper cartridge case turned over against it. After firing, the pellets disperse soon after their exit from the barrel, and this dispersion increases with the range. The degree of dispersion can be controlled to some extent by a 'choking' device near the termination of the barrel. This takes the form of a slight constriction which varies in degree in different weapons. To describe this, such terms as 'full choke' and 'half choke' are used. In certain weapons there is no 'choke' device. If a shot is fired close to the body surface, up to a few inches, the shot enters as a mass, and in addition the liberated gases and flame lacerate the tissues, which show evidence of burning, carbon deposit, and powder tattooing. The wads may be forced into the wound, and this may prove an important clue to the class of cartridge used. When the gun has been fired at from 1 to 3 feet from the body, a more or less irregularly circular wound about 1 to 2 inches in diameter will be produced There will be evidence of some degree of scorching, carbon deposit, and tattooing. So far as dispersion is concerned, with a 'half-choke' gun the pellets will show a spread of about 5 inches in diameter at a range of 5 yards, about 12 inches in diameter at 10 yards, about 16 inches in diameter at 15 yards, and about 20 inches in diameter at 20 yards. To determine the dispersion at the same ranges with a gun of 'full choke' an approximate method is to deduct a quarter from the measurements of these diameters of spread. At a range of over a yard and up to about 3 yards, evidence of burning disappears and probably only faint tattooing will be found. Beyond a yard, the entering shot produces an irregular wound, and, as the result of commencing dispersion of the pellets, individual pellet holes may be detected. When smokeless powder is used, blackening and tattooing will be less marked at all ranges than with black powder.
Accurate estimations of the pellet patterns at different ranges are not possible, since so much depends upon the idiosyncrasies of individual cartridges. This is due to the fact that the cardboard wad is so frequently dislodged in an oblique fashion that turbulence of the shot occurs within the barrel and thus affects the pellet patterns at other than close ranges. With regard to the size of the area of wounding produced by a sporting gun, almost irrespective of choke, an approximate estimate, at different ranges, may be obtained by using this simple formula:-If X = range in yards, then the diameter of the wound = x + 1) inches.
It should be clearly understood, however, that the dimension of the area of wounding, as calculated in the foregoing is that of the cone of the shot spread, measured on a plane perpendicular to the line of fire and upon a relatively flat surface.
Taylor in his famous work entitled 'Principles And Practice of Medical Jurisprudence' (1965 Edition) states at page 283:
Shot guns fire a charge of lead pellets which, if fired from a full 'choked' (narrowed) cylinder spread to a pattern which, measured in inches, is about the same as the distance in yards.
And again at page 295-
As the amount of 'choke1 or narrowing of the bore is of importance in keeping a shot charge together, it is vital to know which barrel has been fired. Discharges from unchoked barrels may begin to spread at 2 or 3 feet, from half-choke at 3 or 4 and fully-choke at 5 or 6 feet.
At page 296 he adds-
Whatever the nature of the charge or projectile, a portion of the powder always escapes combustion at the time of discharge, and each grain then acts like a minute projectile, contusing the skin, producing ecchvniosis and often laceratins it if the weapon is fired at a close range. The clothing may be burnt, and the skin scorched by the flame or hot gas, and particles of powder may be actually driven into the skin causing 'tattooing'. Powder marks are more easily seen when the older black powder is used. Smokeless powders are more completely burnt, and leave, as a rule, less deposit. The grains being colourless are less easily detected, and may entirely escape observation unless a hand lens is used. We may assume that marks of burning, of blackening, or of tattooing from powder indicate that the weapon was fired from a near distance, certainly within arm's reach.
All the three authors above quoted appear to be unanimous that in judging the distance from which a firearm was discharged, the appearance and nature of the resultant wound cannot be said to afford a sure criterion and that any deductions based thereon would lead at best to a very rough estimate.
We have given our most careful consideration to the medical evidence in the light of the above emoted authorities on medical jurisprudence, the deposition of Dr. B. R. Sharma and the contention of Mr. Sibal and our conclusion is that the latter cannot prevail and that the opinion of the ballistic expert, substantially in accord as it is with the said authorities, deserves acceptance. It is true that if the edges of the wound covered by injury No. 2 were found charred, that injury could not have been caused by the same shot from which resulted injuries Nos. 1 and 4, these two injuries, according to Dr. Sharma, having been the result of fire from a range of 3 to 8 feet. It must be held, however, that it was the contusing effect of the impact of the projectile or the dirt ring around the wound covered by injury No. 2 that was mistaken for charring; for, as pointed out by Dr. B. R. Sharma (C. W. 1), injuries Nos. 2 and 3 could not have been caused by a separate shot inasmuch as such a shot would have produced a larger entrance wound and should also have resulted in more than one exit wounds.
The dimensions of the wounds covered by injuries Nos. 2 and 3 unmistakably indicate that these wounds were caused most probably by a single pellet and such a pellet would properly be relatable to the shot which caused injury No. 1. In this connection reference may be made not only to the proximity to each other of injuries Nos. 1 and 2 but also to the fact that only two pellets were recovered from inside the head of the deceased, a fact indicative of the rest of the charge from the shot not having gone into the entrance wound covered by injury No. 1. even though the wads were all recovered from the occipital region. These factors, about the existence of which there can be no doubt, show that the charge did not enter en masse but had spread to some extent at the stage of impact and are incompatible with the existence of charring in the case of injury No. 2.
If further clearly appears that the 'small pellet' which Dr. Chhabra (P.W. 2) claims to have found embedded in the centre of the three wounds comprising injury No. 4 was nothing more than dried blood and all the pellets which had caused these wounds had skipped the shoulder. This follows not only from the fact that only pieces of dried blood (and no pellet) are contained in the relevant phial but also from the relative position of the wounds on the shoulder part of the shirt of the deceased. And if this be so, it cannot be said that the pellets, which caused the three wounds just above-mentioned, had lost most of their momentum by the time they struck the deceased and had, therefore, been fired from long range.
And once this conclusion is reached and the charring part of iniurv No. 2 is ignored, no improbability attaches to injuries Nos. 1 to 4 having resulted from a single shot. If the ammunition used by the assailant was L. G. cartridge and the victim's face was turned towards the left, his shoulder being the part of the body nearest to the muzzle of the gun, part oi the charge (three pellets) could well have grazed the shoulder and ran past it through the shirt, another pellet could have gone into the left cheek and out at the seat of injury No. 3, and the remaining charge, i.e., two pellets, could have entered the seat of injury No. 1 along with the wads, breaking the iaw and getting lodged, after deflection, in the occipital region; so that in such a situation injuries Nos. 1 to 4 would be just the injuries that would result.
In so far as injury No. 5 is concerned, we have not the slightest hesitation in holding that Dr. Chhabra's opinion about the diameter of the missile which caused it being an inch or so, is wholly unreliable; nor has Mr. Sibal been able to give us the description of any weapon from which such a missile was likely, in the circumstances of the case, to have been discharged. On the other hand, as pointed out by Dr. B. R. Sharma (C. W. 1), the injury could have been caused by fire from a shotgun, the range being such that the charge would enter en masse. It is no doubt true that according to Dr Sharma, the injury should have been marked by tattooing and blackening. But then we are not very sure if Dr. Chhabra (P.W. 2) conducted the autopsy with such care as not to have missed noticing tattooing and blackening in the case of injury No. 5 if it was actually there; nor are we convinced that tattooing or blackening was really present in the case of iniurv No. 5 such as may have been capable of detection by the naked eve.
As pointed out above in one of the passages cited from Taylor's work, marks left by unburnt smokeless powder which is colourless are less easily detected 'and may entirely escape observation unless a hand lens is used'. It has also to be borne in mind that the charge would en ter en masse and produce a wound of the type of injury No. 5 even if the shot causing it is fired from a range of about 6 feet provided the barrel used is a full choke barrel and in such a case the chances of the presence of detectable tattooing may not be very bright. In this view of the matter we hold that injury No. 5 could well have been caused by a charge proceeding from a shotgun and that the recovery of only a single pellet such as could have formed part of that charge from inside the body of the deceased is attributable only to the autopsy being not as thorough as it should have been.
10. For the reasons stated above, we have no hesitation in acting upon the ocular testimony which appears to us to be fully trustworthy. Accordingly we hold the conviction of the appellant to be well-based. With regard to the sentence also, we do not consider that any interference is required. The murder was preplanned and cold-blooded and the appellant, although he was only 19 years of age at the time of the trial, deserves no leniency. In the result, therefore, we accept the reference made by the learned Sessions Judge for confirmation of the sentence of death and dismiss the appeal.
Gopal Singh, J.
11. I agree.