S.N. Modi, J
1. The two appellants. Bakhtawar Singh and Karnailsingh along with their fathers, Narsingh and Gurbux-singh respectively were tried for offences under Sections 302 and 307, Indian Penal Code as also under Section 27 of the Arms Act. The learned Sessions Judge, Sri Ganganagar acquitted Narsingh and Gurbux Singh and convicted the appellants for ant offence under Section 307, Indian Penal Code for attempt to murder Jaggasingh and Balbirsingh by causing injuries to them by 303 rifles and sentenced each one of them to suffer imprisonment for life, Jaggasingh succumbed to the injuries on the spot. The appellants were further convicted under Section 27 of the Arms Act and each one of them was sentenced to undergo rigorous imprisonment for 3 years. The appellants have come-up in appeal against their convictions and sentences.
2. The incident relating to this, case took place at village Khaliwala, district Ganganagar, on 23-3-1972 at about p.m. in killa No. 5 of the field belonging to P.W. 1 Jantasingh and his uncles P.W. 2, Balbirsingh, P.W. 3 Mahendra-singh and deceased Jaggasingh, hereinafter called as the complainants. This field is located just adjacent to 'Nakka' (canal outlet) 6 F.D.
3. The prosecution case, briefly stated, is that no timings were fixed for taking water from the canal for irrigation purposes. According to the complainants, they were to take water from^ the canal at 8 p.m. They therefore-reached their field before sunset to set the water courses oik their field in order. On reaching the field, they found the two appellants armed with 303 rifles, Nat-singh armed with a bore gun and Gurbuxsingh armed with a kassi, They were all sitting near the 'Nakka' Mithusingh's field. Seeinig the complainants, Bakhtawarsingh appellant told them not to proceed further as they would not allow them to divert canal water into their field. Jaggasingh, in reply asserted his right to do so. The complainants then started towards the 'Nakka' When they were at a distanse of about 20 pawandas from the 'Nakka' the two appellants and Narsingh opened fire at the complainants at the instigation of Gurbux Singh. One of the shots hit Jaggasingh who fell down and died instantaneously on the spot. One shot hit Balbirsingh's right leg and another on his right thumb. Jantasingh P.W. 1, Mahen-drusjiwih W. 3 and Balbirsingh P.W. 2 then came back to their village and narrated the stqry to'P. W. 5 Hukamsihgh. The latter proceeded to the Border Security Force post at Khaliwala to report the matter. The Eorder Security Force authorities at Khaliawala, in, their turn, Informed the Deputy Commandant, B. S. F, Headquarters, Raisinghnagar. who delivered telephonic message to P.W. 9 Jaleysingh, SHO, Gajsinghpura, to the effect that firing had taken place it Kfyjliwala. On receipt of this tele-irfidnle message, the Station House Officer rushed to the village Khaliwala and recorded Ihe statement of P.W. 1 Janta-singh at about 10.30 p.m. Treating that information to be the F. I. R. the 'SHO started investigation. The SHO inspected the site on the next morning and recovered the two empty cartridge cases of 303 rifles in the field of Mithusingh. Both these empty cartridge cases were duly sealed in the presence of P.W. 1 Jantasingh and P.W. 7 Mukhtyarsingh vtde recovery memo Ex. P-7. Narsingh and Gurbuxsingh were arrested on 24-3-1972 and the two appellants on 27-3-1972. On being interrogated, appellant Bakhtawar-singh informed the SHO at 10 a.m. on 30-3-1972 that one 303 rifle given to his father by the State Government along with one bag containing 23 live cartridges and two fired cartridges was concealed by him underneath a stack of Masoor in his field in killa No. 8 of Murraba No. 61. He also showed his willingness to get that rifle and that bag recovered. This information was recorded by the SHO and is contained in Ex. P. 26. On the same day, that is, ,30-3-72, at 11a.m., appellant Karnailsingh on being interrogated gave similar information revealing the discovery of another .303 rifle. In pursuance of the above informations, the appellant Bakhtawar Singh got recovered at his instance two .303 rifles (Ex, 7 and Ex. 8) and two bags contain-I live and fired cartridges* They were and sealed by the SHO in the presence of the motbirs Bantasingh and PWJP Mukhtyarsingh. The two empty cartridge-cases recovered on the spot cwy 24-3- -72 and the two rifles (Ex, 7 and Ex. 8)-recovered on 30-3-1972 were sent to Pr. O. P. Chug P.W. 8, a ballistic expert on 13-7-1972. P.W. 8, Dr. Chug after thorough examination pined that the two-empty cartridges Ex: 1 and Ex. 2 were-fired from the rifles Ex. 8 and Ex. 7 respectively.
4. Post-mortem examination on* the dead body of Jaggasingh was performed by P.W. 4, Dr. Prithvi Rai on -24-3-1972. The, doctor found the following external injuries on the body of the ' deceased:-
1. Gun-shot lacerated wound, (wound of entrance) on the front of the-left chest in the 5th intercostal space-just lateral to the sternum size li cm. X I cm. The wound was of oval shape and directed backward causing injury to skin., subcutaneous tissues (muscles). There was fracture of lateral marginal of the sternum. Laceration of the pericardium, rupture of the heart and laceration of the-lower lobe of the left lung. The margin of the wound were irregular, bruised and inverted.
2. Gun-shot lacerated wound (wound of exit) li.cm. X 1 cm. on the back side of the left chest in the 9th intercostal space about 11 cm. left to the midlkie. The margins of the wound were irregular and everted.
3. Gun-shot lacerated wound (wouncf of exit) on the back side of the left chest in the 10th intercostal space about 11 cm. left to the midline size 1 cm. and! I cm. The margins of the wound were irregular and everted.
On internal examination, the doctor found laceration of the lower lobe of left lung* and it was congested. There was laceration of perioardial sac and heart ruptured. The cause of death, according to the-doctor, was haemorrhage and shock due, to the rupture of the heart caused by the-gun-shot injuries. The doctor further' opined that all the injuries were ante-mortem and were sufficient in the ordi-r nary course of nature to cause death.
5. P.W. 4, Dr. Prithviraj also examined P.W. 2 Balbirsingh and founct the following injuries on his person:
1. Gun-shot lacerated wound (wound of entrance) size k cm. X cm. X bone-deep on the middle of the back of the-right leg. It was caused by gun-shot.
2. Gun-shot lacerated wound (wound of exit) 3 cm. X if cm. into bone deep* on the middle of the front of the right. leg caused by gun-shot.
3. Abrasion with surrounding bruise cm. all sides of abrasion 3i cm. X J cm. oh the lateral side of the base of the righfc thumtf caused by gun shot'.
6. Appellant Karnailsingh in his statement under Section ' 342, criminal procedure Code pleaded alibi. Appellant Uakhtawarsingh pleaded right of private defence of property and body. He stated that he fired two to three rounds from his revolver when deceased Jaggasingh end BBalbirsingh proceeded to divert the canal water and Jaggasingh wielded his gan-jdasi at him. One witness was examined in defence, namely, D.W. 1, Omprakash. Me deposed that during the relevant period, there was no stack of Masoor in the them of the appellants, that is, murraba No. 61 frbm where rifles Ext. 7 and Ext. 8 were alleged to have been recovered.
7. Arguing the appeal. Mr. M. R. SJhflnsali, the learned Advocate for the appellants in the first instance, invited our attention to the following passage from the Judgment of the learned Sessions Judge;
The only question remains for confederation 4s whether the action of Bakh-ttenvarsingh end Karnailsingh was justified sunder the circumstances of the case 1 l&ider; the circumstances of the (case, there was no right of private defence of their person, whether the right of defence with regard to property was available to 'the two accused persons or not is to be .seen from these circumstances that they were in control of the water and after he assertion by Jaggasingh that they will divert the water the advancement of Jaggasingh and his companions towards the 'Nakka in my opinion caused reasonable apprehension in the minds of the accused persons that the victims and his compa-sikms will divert the water by force and with a view to prevent them from so diverting the water these accused persons, resorted to firing. In my opinion, in this roaimeA the occurrence took place. But the accused persons in my'opinion exceeded their right of private defence with regard to maintaining of their right or supposed right in respect of the water %y causing the death of Jaggasingh. Though from the prosecution evidence it is not clear by whose shot Jtaggasingh met tiis death, but it is clear that both the .shots fired by Bakhtawarsingh and Karnailsinh were effective, one resulted into the death of Jaggasingh and the other re-, suited into, simple and grievous injuries on the person of Balbirsingh.'
'Mr. Bhansali argued that in view of the above findings recorded by the learned 'Sessions Judge, the conviction of the appellants under Section 307, Indian Penal 'Code was wholly unwarranted. The only offence made out against them is that under Section 308, Indian Penal Code.
8. Obviously, if the finding of the learned Sessions Judge that the appellants exceeded right of private defence of property, is correct, the conviction of the appellants could only be under Section 308, Indian Penal Code and not tinder faction 307 Indian penal Code,
9. The learned; Public Prosecutor on behalf of the State has strongly contended that even if the complainants had gone to the site and proceeded towards the Nakka in order to cut off the supply of the water flowing into the field of the appellants, there was no right of private defence of property available to the appellants. In our opinion, the contention of the learned Public Prosecutor is well founded.
10. A bare reading of Section 97, Indian Penal Code would go to show that the right of private defence of property pre-supposes that the person exercising the right or the person on whose behalf the right is exercised is in possession of the property which has to be defended. The prosecution case is that during the relevant period theTe were no fixed timings for the supply of canal water for irrigation purposes. Again, the finding that the appellants were in actual control ef the water does not lead to the inference that they were in possession of the Nakka or the water-channel lying between the Nakka ana the field of the appellants. The Nakka and the water channel from the Nakka to the field of the appellant were neither owned nor possessed, by any of the parties. The Nakka as also the channel admittedly belonged to the government. The appellants, therefore, had no right to prevent the complainants fiom advancing towards the Nakka by use of force, even if, the complainants were bent upon cutting off water flowing to the field of the appellants. The proper coarse for the appellants, in the circumstances, was tp have recourse to the public authorities and get the matter decided. Moreover, the very fact that the accused persons were found sitting at the Nakka armed with deadly weapons like rifles, gun and kasia and they opened fire before the complainants actually reached the Nakka, shows that the appellants were determined to decide the issue by strength of arms. Under the circumstances; the finding of the court below as also the plea of the appellant Bakhtawarsingh that the right of private defence of property or body was available to the accused is wholly, untenable.
11. We now turn to the merits of the prosecution case. The prosecution has examined three witnesses of the occurrence and they.have all supported the prosecution case. These witnesses re PW-1 Jantasingh, PW-2 Balbirsingh and PW-3 Mahendrasingh. The learned Sessions Judge while appreciating their evidence has found long-drawn enmity between the complainants on the one hand and the accused persons on the other. He has further found that both the partial were involved ki several criminal cases against each other at the time of the insident. He has also found that deceased jaggasingh, P.W. 5, Hukamsingh, P.W. 2, Balbirsingh arid P.W. 3, Stahendxa Singh are real brothers and P.W. 1, -Jantasingh is the son of P.W. 5. Hukamsingh While dealing with the evidence of these eye-witnesses, the learned Sessions Judge observed:-
From this evidence it will appear that the relations between the parties -were strained and inimical and so for the appreciation of evidence one has to adopt a careful and cautious approach looking to the inimical relations between the parties.................. Thus considering the inimical relations between the parties and the circumstances dealt with above I hold that there is possibility of implication of the accused Gurbuxsingh and Narsingh and the presence of these two accused persons at the 6pot is doubtful and they are entitled to its. benefit.
12. Mr. Bhansali has strenuously argued that where witnesses giving evidence in a murder trial are shown not only close relatives of the victims but also inimical to accused persons, their evidence should not be accepted because they are prone to involve their enemies falsely out of enmity and partisan feelings,' The learned- Counsel emphasised 'thai in the present case the learned Sessions Judge himself found that out of the four accused, the presence of two, namely, Narsfrigh and Gurbuxsingh at tha ascene of the occurrence, was doubtful. It lias been argued that, in the circumstances, the testimony of the three eye-wit-nesses should be discarded all together.
13. Undoubtedly, when a criminal Court has to appreciate evidence given by the witnesses who are inimical to the accused and close relatives of the victim, it has to be very careful in weighing such evidence, but, in our opinion, it would be unreasonable to contend that evidence given by such witnesses should be wholly discarded only because it is evidence of partisan or interested witnesses. As pointed out by their Lordships of the Supreme Court in. Masalti v. State of uttar Pradesh : 8SCR133 , the Court in order to Sudge the worth of such witnesses should take into consideration whether or not there are material discrepancies in the evidence, whether or not evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable. It was observed:
The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how such evidence should be appreciated. Judicial approach has to. be cautious in dealing with such evidexen but the plea that such evidence should fas rejected because it is partisan cannot b accepted as correct.
14. We have closely scrutianisad the statements of the three eye witness with due care and caution. We find the evidence of these witnesses to be. ire from material discrepancies. We further find that the material facts disclosed by these witnesses implicating the appellants appear to us to be correct and trustworthy. All the three eye-witnesses hava deposed that the two appellants were pre sent on the spot armed with 303, riftea and that they fired the rifles aiming at the complainants. The F.I.R. which waa lodged without any loss of time fully corroborates the testimony of P.W. 1. Jaata-singh, the maker of the F.I.R. In our opinion, the evidence of these three eyewitnesses has stood the test of close sani tiny so far as it implicates the appellant for the offence punishable under Section. 307, Indian Penal Code and can be acted upon in spite of the fact that the said witnesses have strained relations with-the appellants and close relationship with the victims.
15. In Dargahi v. State of ttar Pradesh : 1973CriLJ1828 , P.W. 1, Hariharnath was thfe. brother of deceased Lachhmanpwaad. Hari Harnath in hjs statement admitted enmity with the accused. Their Lordships observed that close relationship with the deceased and enmity with the accused would make the Court scrutinise the evidence of the witness more closely ami if that evidence can stand that test, It tea be acted upon in spite of inimical relations of Hariharnath with the accusad.
16. We unhesitatingly accept the testimony of P.W. 1. P.W. 2 and P.W,3 and feel no necessity of any further corroboration of their testimony.
17. The learned Sessions Judge has relied on the evidence relating ft the recovery of the two empties Ext. 1 and Ext. 2 and their linkage with the rifles Ext. 7 and Ex. 8. According to the learned Judge, this piece of evidence lends assurance to the presence of the appellants on the scene of the occurrence and also that they fired rifles Ext. 7 and Ex. 8 possessed by them. Mr. .Bhansali has strongly criticised the evidenea of the recovery of the empties as also of the rifles. He emphasised that no independent person was employed to act as motbir to witness the recoveries ol these articles. Again, according to tha prosatu-tion, the empties Ext. 1 and Ext. 2 were recovered arid duly sealed on 24-3-1972 and rifles Ext 7 and Ext. 8 on 30-9-1972. but, it is argued, there is no explanation why these sealed articles were not sent to the ballistic expert till 13-7-1972. Relying upon the' decision in Santasingh v. State of Punjab AIR 1966 SC 526 : (1956 Cri LJ 930), it has been argued that this inordinate and unexplained delay raises much suspicion as to the genuineness of the evidence of recovery of the empties and rifles.
18. On the other hand, it has been argued on behalf of the State that in spite of inordinate delay in sending the sealed parcels containing crime empty cartridges and the rifles, no suspicion could arise, because the prosecution has .succeeded in proving that the sealed' parcels containing the crime cartridges and rifles remained intact throughout the relevant period; .
19. We consider it unnecessary to go into this question, for, as already stated ajsove, the testimony of -the eye-witnesses is sufficient to bring home the guilt to the accused under Section 307, Indian Penal,Code beyond reasonable doubt. We therefore, express no opinion on this point.
20. The Teamed Counsel for the appellants has next contended that the learned Sessions Judge was entirely wrong in sentencing the appellants to imprisonment for life as. there existed no definite evidence to show that the shots fired from the rifles Ext. 7 and Ext, 8 caused injuries to deceased Jaggasingh and P.W. 2, Balbirsingh. There is much substance in the above contention. The testimony of the eyewitnesses is that tho appellants fired from a distance of 20 pawandas, that is, about 100 feet or so. The eye-witnesses have further deposed that the appellants were possessed of .303 rifles. None of the eye-witnesses has deposed that the shots fired from the rifles injured the victims. The question arises whether ariv of the injuries sustained by the victims could be attributed to 303 rifles possessed by the appellants. In this connection, we have beeti referred to Taylor's Book on Principles and Practice of Medical Jurisprudence, 4 Vol. I, 12th Edition, wherein, at page 290, it is mentioned:-
As a general rule with revolvers and automatic Pistols firing a low velocity bullet there is no great destruction of' tissue. This is not so, however, with re-' gard, to rifle wounds, for the modern rifle fires a bullet with e muzzle velocity of about 3000 feet per second, rotating at a rate of something like 3000 revolutions per second. The bullet is kept point forward by the gyroscopic, effect of the spin, but like a top tends to wobble somewhat at the other end before it settles down. This continues for several hundred yards, arid in dealing with wounds from rifles we must be careful to distinguish between those inflicted at relatively short ranges upto a.few hundred yards, the middle ranges from 600 to 1200 yards, and those at even greater range.'
In. the' first group, we are likely tcx see explosive effects; in the second group we are likely to see clean punctured1 through-and-through wounds; and in the third group we are again liable to get ir regular lacerated wounds, owing to the loss of velocity,'
21. Looking to the nature of the injuries, and the distance from which the rifles are said to have been fired at, we strongly feel that, the injuries were not caused to the victims by a rifle. It is common knowledge that 303 rifle is a very powerful fire-arm which fires a bullet at a very high velocity. If a bullet from 303 rifle', had hit any of the two victims within a distance of 600 feet, it would have completely shattered the organs through which it passed. Looking to the distance from which the rifles in the present case were said to have been fired, it seems more likely that the injuries sustained by the victims were caused by a gun and not by a rifle. Since the appellants were armed with rifles, it is highly doubtful that the appellants caused hurt to Jaggasingh and Balbirsingh. They are, of course, liable for the offence under Section 307 IPC as they fired the rifles aiming at the complainants. But since there. is no definite evidence to show that they thereby caused hurt to any of the victims, the sentence of im-pristfranent for life passed against the appellants cannot be sustained.
22. We,.accordingly, allow the appeal in part end while maintaining the conviction of the appellants under Section 307, Indian Penal Code reduce the sentence in case of each appellant from, imprisonment for life to five years' rigorous imprisonment and a fine of Rs. 500/--In default of payment of fine, each appellant shall undergo rigorous imprisonment for a further period of, one year.
23. The conviction of the appellants under Section 27 of the Arms Act has hot been rightly challenged before us in view of the findings arrived at by us. We, therefore, maintain the conviction of the appellants under Section 27 of the-Arms Act, as also the sentence awarded for that offence.
24. The two sentences in case o each appellant shall run concurrently.