Judgment:
1. This appeal is directed against the order of the learned Sessions Judge, Sri Ganganagar dated 2.11.1984 where by he convicted accused appellant Under Section 302 I.P.C. and sentenced him to imprisonment for life and a fine of Rs.150/-. The accused appellant was also convicted Under Section 27 of the Arms Act and sentenced to one year rigorous imprisonment.
2. Brief facts of the prosecution case are that one Chhinder Singh went to police station, Chunawadh with Todasingh on 23.9.1983 and lodged First information report of the incident at 4 A.M. with the allegation that on 22.9.1983, Smt. Kuldeep Kaur, resident of 13G Chhoti had gone to the handpump situated in the school to fetch water in her pitcher. Ranasingh went there and did not allow her to take water from the handpump and removed the handle of the handpump. Thereafter some hot words were exchanged between them. Smt. Kuldeep Kaur returned back to her home but at that time her husband Chhinder Singh and brother-in-law Jasmail Singh were at the field and when they returned at 6 P.M. she narrated the story. At this Chhinder Singh advised her to take it lightly as Ranasingh was just like her father-in-law. It was further alleged that in the same night when after dinner they were preparing for going to bed, at about 9.30 P.M. Jagsir Singh armed with pistol came to the roof of his Kothha and started hurling abuses and then came to the roof of the Kothha of Chhinder Singh. He fired his pistol in the air which did not hit anyone. At this all tried to rush towards the Kothha. Ranasingh armed with double barrel gun also came there abusing them and told Jagsir Singh to kill them by uttering the words.' At this Jagsir Singh fired at them. In the meanwhile, Smt. Ranjeet Kaur deceased asked her family members to go inside the Kothha but she could not shut the door. The shot hit the stomach of Smt. Ranjeet Kaur. She fell down and later on died. Jagsir Singh alongwith Ranasingh went on abusing from his own Kothha and thereafter switched on the tape recorder. Thereafter the accused went in the street and started abusing. Due to the terror the complainant party remained inside the house. How ever, on getting a chance, Kuldeep Kaur was sent to the house of Debraj Panch but he was not available in his house. After getting information from his wife that he had gone to the field of Naibsingh, she went to Naibsingh's field, and narrated the story to Debraj and returned to her house. Thereafter, Jasmail Singh went to his brother-in-law's house at village Ghirghavali and brought Totasingh and his brother-in-law. He went to inform the police along-with Tota singh. On his report police registered a case and went to the site and started investigation. Site plan Ex.P-2 and site inspection memo Ex.P2(A) were prepared and taperecorder alongwith the cassettes was recovered. Panchayatnama of the dead body Ex.P-3 and inquest memo Ex.P-4 were prepared and the dead body was sent for post mortem. The accused-appellant Jagsir Singh and Ranasingh were arrested on 23.9.1983 vide Ex.P-10 and 11. Pistol, two empties and two live cartridges were recovered on 29th September, 1983 at the instance of accused appellant Jagsir Singh and a twelve bore double barrel gun was recovered at the instance of Ranasingh. The investigating Officer sent the gun and the pistol in a sealed packet for chemical examination. On completion of usual investigation the police submitted the challan before the learned Magistrate, First Class, Sri Ganganagar, who committed the case for trial to the court of Sessions Judge, Sri Ganganagar on 24.4.1984. The learned Sessions Judge, Sri Ganganagar framed charges against the accused appellants Under Section 302 I.P.C. and 27 Arms Act. The accused-appellants pleaded not guilty and claimed trial. The prosecution has examined 9 witnesses and filed 22 documents to establish the case. The accused in their state ments denied the allegations. No defense witness was examined. The learned Sessions Judge acquitted Ranasingh but found the case well established against accused appellant Jagsir Singh and convicted and sentenced him as mentioned above, hence he has preferred this appeal.
3. We have heard Mr. M.L.Garg, learned counsel for the appellant and Mr. Hemant Choudhary, learned Public Prosecutor assisted by Mr. Bhagwati Prasad counsel for the complainant and examined the record.
4. Mr. M.L.Garg,learned counsel for the appellant has contended that the accused appellant has been falsely implicated in this case and the injury received by the deceased cannot be caused from the place where the accused appellant is alleged to be standing. That it was not possible for the eye-witnesses to see the accused appellant as there was no proper light. He has also contended that there are discrepancies in the statements of the prosecution witnesses. He has submitted that as per site plan Ex.P-2 the deceased was standing at the place shown 'A'. Infront of that Kothha, there was Angan, the shot is said to have been fired from the place shown 'B' from the roof of the Kothha, therefore, it was impossible for the accused appellant to fire the shot from that place so as to hit the victim at the place marked 'A', because the trees in the Bakhal were obstructing the way. As such Mr. Garg argued that the shot was not fired from the place al leged by the prosecution and the accused-appellant has been falsely implicated on the basis of the occurrence said to have taken place in the morning between Kuldeep Kaur and Ranasingh and the existing enmity relating to irrigation in their fields.
5. It was further submitted by Mr. Garg that the learned Sessions Judge has erred in convicting and sentencing the accused appel lant as there is no evidence, which can prove the guilt of the accused appellant beyond reasonable doubt.
6. Mr. Hemant Choudhary, learned Public Prosecutor has contended that there was dispute between the parties regarding the irriga tion in the fields and on 22.9.1983 in the morning also there was quarrel between Kuldeep Kaur and Ranasingh and in the same night accused appellant abused the complainants and fired the shot with an intention to kill them. The first shot fired by accused appel lant Jagsir Singh could not hit anyone and he fired the second shot which injured Ranjeet Kaur and she died. He has strongly supported the judgment given by the learned Sessions Judge and has submitted that the accused appellant has been rightly convicted and sentenced. The point for determination is whether the shot could not have been fired in the manner it is alleged and whether there was not sufficient light and due to obstruction of trees and wall, it was not possible for the witnesses to see the person who fired the shot. In order to deal with these points it would be proper and useful to discuss the relevant evidence briefly.
7. P.W. 3 Chhinder Singh has stated that 'RAAT CHANDNI THEE AUR CHAND NIKAL AYA THA'. Hence there was sufficient light. The learned Sessions Judge has observed that as per the calendar of the year 1983, corresponding Hindi 'Miti' on 22.9.1983 was Virvar Bhado Sudi 15. That was the night of full moon. Except the ac cused appellant none has stated that at the time of the incident there were clouds, Rather witnesses have stated about there being no clouds. It is thus clear that the person who fired the shot could be seen and recognized while committing the offence as there was sufficient light.
8. So far as the argument of obstruction by the trees is concerned, P.W.3 Chhinder Singh has stated that there was no tree in the, Bakhal inside but only 4 or 5 trees were in the Bakhal outside and only one tree near 'Angan'. He has further stated that some of the trees were at the distance of 9 to 10 paces from the Angan. It has also been stated that the height of the Angan wall was 3ft. P.W. 4 Kuldeep Kaur has stated that Ranjeet Kaur was sleeping in the open courtyard and there was no tree in the Bakhal. She has further stated that there were some trees in the outside Bakhal where machine was fixed. This version is not controverted. As there existed no trees between place B and A and the height of Angan wall was 3ft. it was possible for the eye witnesses to see and identify the person who fired from the place 'B'. In view of such evidence, the argument made regarding obstruction is not sustainable.
9. Now the only question remains as to who was the author of the firearm injury P.W.3 Chhinder Singh has stated that the first shot fired by the accused appellant did not hit anyone but at this day all assembled near the door 4ft in width. P.W.3 Chhinder Singh has also stated that while they were entering the kothha and Smt. Ranjeet Kaur was just near the door, second fire was shot. In the cross examination this witness denied the sugges tion that he could not identify as to who fired as her mother Smt. Ranjeet Kaur. He has further stated that the door was not closed and the distance between the witnesses and the person who fired was 7-8 paces. P. W.4 Kuldeep Kaur has stated that she had seen the accused appellant who had fired the second shot. She has also stated that when the accused appellant fired the second shot Chhinder Singh was standing on the west side and Kuldeep Kaur's face was in the east of Kothha. The door of the Kothha on the roof of which the accused appellant was standing was in the north. P.W.5 Jasmail Singh has stated that in the night when Jagsir fired the first shot then all had assembled near their mother. He has also slated that when she was about to shut the door, the accused appellant Jagsir Singh fired the shot which hit her. P.W.5 has also stated that they could see the accused appel lant. In cross examination P.W.5 has stated that when the accused appellant had fired the shot Ranasingh was standing near him.
10. In the instant case, Ranjeet Kaur's death was not natural but homicidal, which is evident from the post mortem examination and the testimony of the Doctor. There are eye witnesses who have seen the incident. It is clear that the incident took place on 22.9.1983. That was 'Purnima' and there was sufficient light due to full moon. It is also clear that there was no tree in the Angan to create obstruction. There is evidence on record which shows that there was a dispute regarding irrigation water between the parties and in the morning of 22.9.1983, the date of incident there was exchange of hot words between Kuldeep Kaur and Rana singh. Though motive has not been proved but there is sufficient evidence on record that the relation between the parties were strained, there was quarrel and that was sufficient cause for the incident which took place in the night. Ranjeet Kaur has died due to fire arm injury. P.W.3 Chhinder Singh, P.W.4 Kuldeep Kaur and P.W.5 Jasmail Singh could have easily identified the accused appellant as they were in the open court-yard. The door of the Kothha was open and it was 4ft in width, so also witnesses could have seen the accused appellant. Therefore, the evidence of the eye witnesses can not be discarded. As per evidence there was no tree, so the question of obstruction does not arise and it could not have affected the visibility of the witnesses to identify the accused appellant more particularly when the distance between the accused appellant and the witnesses was only 7-8 paces. As regards the minor discrepancies, in the statement of the P.W.3 Chhinder Singh as to what the accused did between the first fire and the second fire, suffice it to say that in view of the statements of the witnesses it is not fatal to the prosecution case. It has been proved beyond reasonable doubt that accused appellant fired the shot by the pistol causing the death of Ranjeet Kaur. In the absence of cogent convincing evidence the learned trial Judge has rightly held the recovery of the pistol from the appellant as suspicious. But the fact of the appellants illegally using the firearm that is causing death of Ranjeet Kaur is duly established and the charge Under Section 27 of the Arms Act is made out. In these circumstances, the learned Sessions Judge has committed no error in convicting the accused appellant for the offence Under Section 302 and 27 of the Anns Act.
11. In the result, the appeal fails and is hereby dismissed.