Abhilasha Kumari, J.
1. In this appeal, the appellant (hereinafter referred to as 'the accused') has assailed the judgment of the learned Additional Sessions Judge, Una, dated 31-3-2003. The Additional Sessions Judge, Una, has charged and convicted the accused for offences under Section 302 of the Indian Penal Code and Section 27 of the Indian Arms Act and has sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 20,000/-under Section 302 of the Indian Penal Code and in default of payment of fine, the accused has been ordered to suffer rigorous imprisonment for three years. The accused has been further sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 7,000/- for the offence punishable under Section 27(1) of the Arms Act and in default of payment of fine to undergo rigorous imprisonment for a further period of one year. The sentences, so imposed, shall run concurrently. It has also been ordered that out of the fine amount, if recovered from the accused, a sum of Rs. 21,000/- shall be paid to the legal representatives of deceased Niranjan Singh after due verification.
2. Briefly stated, the case of the prosecution, which led to the filing of the charge-sheet against the accused for the offences under Section 302 of the Indian Penal Code and Section 27 of the Arms Act, is that the accused, who is stated to be originally a resident of Ballachour in District Nawanshehar (Punjab), happened to have purchased land at village Nangal Kalan, Una. Himachal Pradesh, where he had been residing. The land belonging to the accused is stated to be contiguous to the land belonging to Rakesh Kumar and his family. Rakesh Kumar is the complainant in this case. There was a land dispute between the complainant party and the accused which took a serious turn and led to the death of Niranjan Singh, aged about 41 years, real brother of Rakesh Kumar (complainant) at Nangal Kalan. It is stated that on 5-8-2001 while the complainant along with his wife Smt. Som Lata, younger brother Suresh Kumar, elder sister-in-law Smt. Surindra Devi were working in their fields at Nangal Kalan and were cutting bushes therefrom, the accused also turned up there Rukam Singh and Niranjan Singh, brothers of Rakesh Kumar (complainant) were also working with the complainant and other family members in their fields. The accused at that time asked the complainant to stop cutting the bushes immediately on the pretext_that the field belongs to him. On being told that the field had been purchased by the complainant from one Sukhdev Singh son of Dhian Singh of village Nangal Kalan through a registered sale deed and that the possession thereof had also been delivered to him after due demarcation, the accused threatened that he will see him shortly and left the spot.
3. However, after a short-while, while the brother of the complainant Niranjan Singh (deceased) was standing in the field, from the adjacent field in which the maize crop was grown a gun shot was heard, followed by another gun shot, which hit Niranjan Singh near the upper left thigh. Niranjan Singh fell down and 'shouted that he is no more' which attracted the complainant and other family members who rushed to the spot. The complainant immediately boarded the said injured Niranjan Singh in the Jeep No. DL-ICD-7013 and rushed to the Zonal Hospital, Una. The accused was stated to have been noticed running through the maize crop with the gun and was also followed by the other brother of the complainant namely Rukam Singh and by one other Narender Singh but due to the grown maize crop, the accused could not be apprehended. Niranjan Singh was medically examined and his X-Rays reports were taken but he succumbed to his injuries sustained due to the gun shot and died at 8 p.m.
4. In the first instance, the message regarding this incident was stated to have been received by the then Dy. S.P. Headquarters, Una, at 8.40 p.m. who, accordingly informed Sub Inspector Baldev Ram, Incharge, Police Post, Haroli, on telephone that Niranjan Singh, who was brought to the Zonal Hospital, Una, in an injured condition has expired and, therefore, the said Sub Inspector was directed to investigate the matter. Rapat No. 16 dated 5-8-2001 (Ex. P.W. 22/A) as such was recorded at Police Post Haroli and Sub Inspector Baldev Ram thereafter left for Nagal Kalan whereas ASI Foujja Singh was deputed to go to the Hospital. The statement of complainant Rakesh Kumar under Section 154 of the Code of Criminal Procedure (Ex. PW-4/A) was recorded at the Zonal Hospital Una, which was forwarded to the Police Station, Una, on the basis of which formal FIR No. 408 of 2001, dated 5-8-2001, under Section 302 of the Indian Penal Code and under Sections 27/54/59 of the Arms Act was registered at Police Station, Sadar, Una, which is Ex. PW-17/A.
5. The police started investigation of the case and got the post-mortem conducted on the body of the deceased, which report is Ex. PX. The Medico Legal Certificate (Ex. PW-I/A) was also taken into custody qua the treatment given to injured Niranjan Singh before he breathed his last. Certain parts of the stomach system (viscera) were taken into custody which were sent for chemical analysis and the report of the chemical analyst in this regard is Ex. P.W. 1/B. The blood stained garments, stones, pebbles and earth were taken into custody from the spot and were also examined by the Forensic Science Laboratory and the report in this regard is Ex. P.W. 1/C.
6. During the investigation, the police also recovered the gun of the accused along with two live cartridges, which were allegedly concealed by the accused in the heap of husk belonging to P.W. 10 Bakshi Ram who also happened to be related to the accused. The empty cartridge was also taken into custody by the police along with blood stained pair of shoes, stones and earth vide fard Ex. P.W. 4/B. The gun along with cartridges recovered from the husk were taken into custody vide fard Ex. P.W. 10/A and the khaka thereof was also prepared which is Ex. PW-10/B. The accused has subsequently given nishandehi of the said place where the gun as well as cartridges were concealed in the husk and the fard in that regard is Ex. PW-10/C.
7. The disclosure statement of the accused under Section 27 of the Indian Evidence Act was recorded, which is Ex. PW-20/D and accordingly two live and one empty cartridge were got recovered at the instance of the accused vide fard Ex. P.W. 20/E. The site plan (Ex. P.W. 10/F and Ex. P.W. 21/B) was prepared. Photographs thereof were also taken which are Ex. PW-21/A-l to Ex. P.W. 21/A-6 along with the negatives Ex. P.W. 21/A-7. The police has also taken the photographs of the dead body of the deceased and the place where the alleged incident took place which are Ex. P-1 to Ex. P-16 along with negatives Ex. P-17 and Ex. P-28 to Ex. P-31, qua the body of the deceased in particular. The gun license of the accused Ex. P-18 was also taken into custody.
8. The police also recorded the statements of the material witnesses who had occasioned to notice the accused leaving the place along with gun after the incident. The gun was taken into custody along with the cartridges and sent to the Forensic Science Laboratory and report in that regard is Ex. P.W. 1/D. After completion of the investigation by the police in the matter, the challan was presented in the Court of learned Additional Chief Judicial Magistrate, Una, under Section 302 of the Indian Penal Code and under Sections 27/54/59 of the Arms Act, who vide order dated 29-11-2001 committed the case to the Court of Session for trial. The accused was charge-sheeted for having committed the offence under Section 302 of the Indian Penal Code and under Section 27/54/59 of the Arms Act to which the accused pleaded not guilty. The prosecution examined as many as 23 witnesses in order to substantiate the charges against the accused. In his statement under Section 313 of the Code of Criminal Procedure, the defence of the accused was denial inter alia the accused also took up the plea that he has been falsely implicated in this case as he had a civil litigation with the complainant party who wanted to forcibly occupy the land which had been coming in possession of his wife. The accused has examined three witnesses in his defence.
9. We have heard the learned Counsel for the accused and the learned Additional Advocate General for the respondent-State and have also gone through the records.
10. The learned Counsel for the accused has assailed the judgment of the trial Court on various grounds. The first ground taken by him is that P.W. 4, Rakesh Kumar, P.W. 5 Som Lata and P.W. 6 Rukam Singh are all interested witnesses being family members of the deceased and, therefore, their version cannot be implicitly believed or relied upon, which the prosecution has done. He submitted that their evidence has not been appreciated by the trial Court in a proper perspective as it should have been, keeping in view the factum of relationship to the deceased.
11. On the other hand to controvert aforesaid argument of the learned Counsel for the accused, the learned Additional Advocate General has contended that P.Ws. Nos. 4, 5 and 6, although related to the deceased, are natural and direct eye-witnesses who were present at the spot at the time of the incident and if their testimony is scrutinized, it will be seen that their statements corroborate each other in all material particulars. In support of this contention, he has relied upon State of H.P. v. Mast Ram : AIR2004SC5056 of this judgment reads as follows:
11. As already noticed, P.W. 1 Hans Raj and P.W. 3 Vijay Kumar are two eye-witnesses who accompanied the deceased on the fateful day. Both the eye-witnesses had stated categorically that they accompanied the deceased while going to the fields to fetch fodder for the cattle. When they were passing through the passage in front of the house of the accused, the accused challenged the deceased and in the meantime fired at him, with the result that deceased Uttam Chand fell down on the ground after having sustained gunshot injuries on his person. The two eye-witnesses were subjected to lengthy cross-examination but nothing could be elicited to doubt the creditworthiness of their testimony. No doubt that P.W. 1 and P.W. 3 are relatives but this will be no ground to disbelieve their testimony, if otherwise, inspired confidence. The law on the point is well settled that the testimony of relative witnesses cannot be disbelieved on the ground of relationship. The only requirement is to examine their testimony with caution. In the given facts of the case, it is but quite natural that the relatives would have accompanied the deceased to collect the fodder for the cattle from the fields at about 10.30 a.m. on the fateful day. It is also in the prosecution evidence that the incident at 10.30 a.m. was preceded by an altercation and quarrel between the accused Mast Ram and P.W. 5 Gian Chand, on the same morning at about 10.00 a.m. with regard to the disputed abadi and the deceased Uttam Chand is said to have intervened in the matter and advised both P.W. 5 Gian Chand and accused Mast Ram not to quarrel and wait for the decision of the civil litigation. It is also in the evidence that thereupon the accused Mast Ram threatened the deceased Uttam Chand that he would deal with him first of all as he was siding with Gian Chand with whom the accused is having pending litigation with regard to abadi. The categorical testimony of eye-witnesses' account has not been considered and discussed at all by the High Court. Their testimony was thrown out at the threshold on the ground of animosity and relationship. This is not the requirement of the law. That apart, P.W. 4 Tarsem Lal is an independent witness. P.W. 4 also hails from the same village. He is neither related to the complainant party nor to the accused party. He has stated that he saw the accused Mast Ram in his verandah with a gun in his hand and also saw him runing away from the spot after the gunfire. The High Court has not considered and discussed the testimony of P.W. 4 at all.
12. The learned Additional Advocate General has also argued that there is no inconsistency in the direct evidence of the eye-witnesses that the accused committed the murder by firing from the gun and the medical evidence to the effect that the deceased died of a fatal gun-shot and to substantiate this contention he has relied upon Janak Singh v. State of Uttar Pradesh 2004 Cri LJ 2533 (SC). to the same effect.
13. We have scrutinized the entire evidence on record, and the relevant aspects are discussed herein-below.
14. The first is the statement of P.W. 4, Rakesh Kumar (complainant), who is the brother of the deceased. He states that on 5-8-2001 at about 6-30 p.m. he along with Som Lata (P.W. 5), elder brother Rukam Singh (P.W. 6), younger brother Suresh Kumar, elder brother Dilbagh Singh, elder sister-in-law Surendra Devi, tractor driver Naresh Kumar (P.W. 7) and brother Niranjan Singh (deceased) were working in the fields where they were cutting bushes, when the accused accompanied by his servant Ramu came there and started abusing them. It is stated by this witness that the accused claimed that the piece of land belonged to him and threatened that in case they did not stop cutting the bushes he would 'see him'. The accused then went away and after about 15 minutes the sound of a gunshot was heard. At the relevant point of time Nirenjan Singh was cutting bushes along the path. On hearing the gun-shot, Rakesh Kumar and his family members were stunned, and just then another gun-shot was heard. Niranjan Singh was seen bleeding heavily from his left thigh. Rakesh Kumar further states that accused Gopal Singh was seen with the gun inside the bushes on the other side of the path at a distance of about 20-25 feet from Niranjan Singh. He further states that due to the injury Niranjan Singh fell on the ground and the family members assembled near Naranjan Singh and accused Gopal Singh was seen running away with the gun. This witness along with Surendra Devi took Niranjan Singh to the hospital in his jeep. Rukam Singh, brother of the deceased and Suresh Kumar ran after Gopal Singh before this witness left for the hospital. The doctor attended upon Niranjan. Singh in the hospital where he breathed his last. In his cross-examination, this witness has reiterated all the material particulars stated by him in the examination-in-chief and has stated that the bushes in which the accused was standing with the gun were about 7-8 feet in height. He has also categorically denied the suggestion that nothing in those bushes was visible from the place where he and other family members present were standing.
15. P.W. 5 Som Lata, wife of Rakesh Kumar (complainant), has corroborated the version of P.W. 4 in all material particulars, especially that while they were cutting bushes in the fields the accused came there with his servant Ramu and started abusing and threatening them and that after 10-15 minutes they heard gun-shot from the path side. This witness states that they started looking from where the gun-shot had come when immediately thereafter, the second gun-shot was fired by accused Gopal Singh from the side of the path near the bushes and he was noticed loading or unloading the gun. The second gun-shot hit Niranjan Singh on the left thigh and the blood started gush-Ing out. This witness further states that Rukan Singh and Suresh Kumar ran after the accused whereafter her husband Rakesh Kumar went to bring the jeep and within five minutes. Rakesh Kumar removed Niranjan Singh to the hospital. Niranjan Singh, on being hit by the gun-shot, cried out that he was hit by Gopal Singh. P.W. 5 Som Lata has categorically stated that she had seen Gopal Singh with the gun before Niranjan Singh was hit. In her cross-examination. She clearly states that the accused at that time was concealed behind the bushes but through the holes in the bushes he was visible.
16. Similar is the version of P.W. 6 Rukam Singh, who corroborates the versions of P.Ws. Nos. 4 and 5 in all material particulars regarding the going back of the accused after threatening the complainant party with his servant, then his returning after 15 minutes with a gun and firing of the gun-shots. This witness has further stated that when the accused pointed his gun towards Niranjan Singh after firing the first shot. he asked him not to do so but before he could reach the accused he had fired at Niranjan Singh, which bullet hit him on the left thigh due to which he fell down on the ground and the blood started oozing out. He has further stated that at that point of time he and Suresh Kumar ran after Gopal Singh for a distance of about 400 meters while the other family members surrounded the injured person. While running after Gopal Singh, this witness noticed that the accused was trying to take out the empty cartridge from the gun. The accused fell down while running and the maize crop being fully grown he could not be located but Som Nath alias Somi (P.W.12) noticed him running away. P.W. 6 has also categorically stated that when his brother Niranjan Singh sustained the gun-shot injury he cried 'bachao-bachao' as he was hit by gun-shot fired by Gopal Singh. When he came back to the spot after chasing Gopal Singh, who could not be apprehended, he saw that his injured brother was put in the jeep and taken to the hospital. In his cross-examination, this witness has categorically stated that the accused had fired from behind the bushes but he was visible.
17. Admittedly RWs. 4, 5 and 6 are closely related to the deceased but a scrutiny of their evidence reveals that they have clearly stated the entire sequence of events in a lucid and cogent manner, without any embellishments. They are the natural witnesses on the spot and have all corroborated each other's testimony in all the material particulars, especially the coming of the accused on the spot with his servant, to threaten the complainant party, his going back, again returning in about 15-20 minutes with a gun, his firing two gun-shots, the second of which hit deceased Niranjan Singh on the left upper thigh, his being clearly seen running through the maize crop with the gun, his being followed by Rukam Singh (P.W. 5) and Suresh Kumar and his loading or unloading the gun while running. These were the direct eye-witnesses present on the spot and their account is convincing and truthful. Moreover, no material contradictions have been pointed out in their testimony by the learned Counsel for the accused.
18. The Hon'ble Supreme Court, in a catena of judgments, has observed that although the testimony of witnesses, who are interested due to their being related to the deceased, should be scrutinized with care and caution, yet the mere factum of their relationship alone will not be a ground to discard their testimony if otherwise it inspires confidence. This proposition has been clearly enunciated in State of H.P. v. Mast Ram 2004 Cri LJ 4973 (supra) and the ratio of this judgment is squarely applicable to the facts and circumstances of the present case.
19. Although, P.Ws. Nos. 4, 5 and 6 are related to the deceased, their testimony has been corroborated in all material particulars by that of the other independent witnesses who were also present on the spot i.e. P.W. 7 Naresh Kumar, who was the driver of the tractor and P.W. 12 Som Nath who was working in his field adjacent to the land of the complainant party.
20. P.W. 7 has stated that on 5-8-2001 at about 6.30 p.m. he had gone to drive the tractor in the fields of Rakesh Kumar and there were 7-8 family members of Rakesh Kumar, who were cutting the bushes, including Niranjan Singh (deceased). At about 6.45 p.m., accused Gopal Singh came on the spot along with his servant Ramu and asked the complainant party to stop the work. The accused further threatened that in case work was not stopped he will 'see them'. Thereafter Gopal Singh and Ramu returned to their house but after 15 minutes Gopal Singh again came back and fired with the gun, the second gun-shot hit Niranjan Singh. This witness has clearly stated that he noticed the gun in the hands of Gopal Singh and saw him running with his gun. He also states that Rukan Singh and Suresh Kumar ran after the accused but the accused could not be apprehended by them and Niranjan Singh was then removed in a jeep by Rakesh Kumar to the hospital.
21. Naresh Kumar (P.W. 7) is not related to the deceased or the complainant party but is a tractor driver who was present on the spot by chance, having come there to drive his tractor in the fields of P.W. 4. He is also a reliable witness, who was a direct eyewitness to the events that took place and his testimony corroborates the testimony of P.Ws. Nos. 4, 5 and 6 in all material particulars.
22. P.W. 12 Som Nath is the owner of the field adjacent to the field of P.W. 4 and is also an independent witness who is not related to the deceased. He states that on 5-8-2001 at about 7 p.m. he had gone to cut grass from his land when accused Gopal Singh came running from Tobba side and jumped on his field near to him. This witness has stated that he noticed that Gopal Singh was running along with his gun and was being followed by Rukam Singh (P.W. 5) and Suresh Kumar. He also saw accused Gopal Singh loading or unloading his gun and, as such, he requested Niranjan Singh (deceased) and Suresh Kumar not to follow Gopal Singh as he was likely to fire at them. Therefore Suresh Kumar and Niranjan Singh stopped there and he also ran away. He states that when he was on the way to his house at the crossing, a number of persons were talking that Niranjan Singh was fired at. On his coming to the spot, he found that Niranjan Singh had been taken to the hospital. There is no reason to disbelieve the testimony of this witness who was working in his own field at the relevant point of time and had no axe to grind with the accused nor has it been suggested that he was related to the complainant party or was making a false statement in order to falsely implicate the accused. The testimony of P.Ws Nos. 4, 5 and 6 is further corroborated by the narration of P.W. 12.
23. In view of the fact that the testimony of P.Ws. Nos. 4, 5 and 6 is consistent in all material particulars and the same has been corroborated by the narration by P.Ws. Nos. 7 and 12, who are independent witnesses and not related to the complainant party, and since there are no discrepancies or contradictions in the testimony of these witnesses, their testimony being credible, trustworthy and consistent cannot be discarded on the ground of relationship alone. Therefore, we are unable to uphold the contention of the learned Counsel for the accused that the evidence of these witnesses has not been properly appreciated and is unreliable.
24. The learned Counsel for the accused has further argued that it has not been proved that it was the accused and no other person who fired at the deceased since no person had seen him firing the gun and, therefore, it cannot be said that it was the accused who fired the fatal gun-shot at the deceased. This contention does not find support from the overwhelming material on record in the form of unshakable evidence of P.Ws. Nos. 4, 5, 6, 7 and 12 already discussed, that it was the accused who came to the spot with the gun and fired two shots, the second of which hit the deceased. The testimony of these witnesses has already been referred to at length and need not be repeated in this regard. In cross-examination, the factum of the accused having come to the spot with the gun and firing two shots and the accused having been seen running from the bushes with the gun has been clearly stated by P.Ws. Nos. 4 and 5. The accused was followed by P.W. 6 and Suresh Kumar and was seen running with gun while trying to load and unload it. There is no doubt whatsoever that from the testimony of the said witnesses including the unrelated witnesses such as P.Ws. Nos. 7 and 12, it was the accused who came to the spot with the gun and fired two gun-shots, the second of which hit the deceased. The identity of the accused has been amply established by the convincing evidence on record which has remained unshattered.
25. The learned Counsel for the accused has further argued that the recovery of the gun and the cartridges with which the accused is said to have fired at the deceased at the house of Bakshi Ram (P.W. 10) is doubtful. Till the time when the gun was recovered, it was not known to whom it belongs. From the point of identification of the. gun, the investigation shows the over-jeal-ousness of the police to implicate the accused with the commission of the offence.
26. P.W. 10 Bakshi Ram has stated that accused Gopal Singh is his relative and was on visiting terms with him. He stated that on 8th of August of that year when he was arranging the heap of 'Tun' (husk) in his cattle-shed and was shuffling the 'Turi', he found one gun and two cartridges concealed under the heap of husk. He informed Pradhan Arun Kumar about this, who in turn telephonically informed the police in the presence of this witness. The police came along with the Pradhan on the same night and took photographs of the heap and took into possession the cartridges and the gun vide Memo Ex. P.W. 10/A which has been proved by this witness. He further states that after two or three days accused Gopal Singh was brought there by the police and he pointed towards the heap in which he stated that he had concealed the articles. In his cross-examination. this witness has stated that the cattle-shed is at a distance of 20-30 yards from his house on the back side and that it always remained open and the heap of husk was stacked inside it. Since, this witness is related to the accused there is no reason why he should state falsely and the recovery of the gun and cartridges has been effected in a most natural manner. The accused being on vising terms with P.W. 10, there is every possibility that he entered the cattle-shed and concealed the gun and cartridges under the heap of husk after running away from the spot after the incident. The recovery of the gun and the cartridges is neither mysterious nor doubtful as stated by the learned Counsel for the accused. As far as the identity of the gun (Ex. P-9) is concerned, there is no doubt that it belongs to the accused since there is a valid license for the same in the name of accused Gopal Singh which is Ex. P-18 on record. The report of the Ballistic Expert is Ex. P.W. 1/D, which states that the gun is capable of firing and its barrel has evidence of fire. Further this report states that the empty cartridge (found on the spot) may be fired from the said gun. The holes found in the clothes of Niranjan Singh could be from the pellets fired from the cartridge and that the average weight of the pellets correspondents to the pellets shot from 12-bore gun. There is clinching evidence that the gun-shot which proved fatal to the deceased had been fired from the licensed gun belonging to the deceased (accused). No material flaw has been pointed out by the learned Counsel for the accused in the investigation done by the police. Therefore, the contention that the police has shown over-jealousness in order to implicate the accused is not based on any factual material on record.
27. Another contention raised by the learned Counsel for the accused is that there are contradictions in the statement of P.W. 7 Naresh Kumar who says in his cross-examination that the accused might have been firing from his house whereas this part of his statement does not match with the statements of P.Ws. Nos. 4, 6 and 12. As far as this contention is concerned, it is not at all relevant since the witness has stated that after the first fire they had assembled at one place and he noticed that Gopal Singh 'might' be firing from his house. The house of Gopal Singh was on one side at a distance of about 30-40 yards from the place where he was standing near the bushes. This witness has not stated that accused Gopal Singh had fired from his house but has only stated that he 'might' have been firing from his house because his house was only at a distance of 30-40 yards from where he was standing. In any case, this discrepancy is not a material one and cannot shake the testimony of the other witnesses which is consistent throughout.
28. The last argument raised by the learned Counsel for the accused is that the accused has been wrongly convicted under Section 302 of the Indian Penal Code, whereas, at best, he should have been sentenced for offence under Section 304, Part II of the Indian Penal Code. In support of this contention, he contended that the accused had no intention to kill the deceased and this is proved by the fact that the gunshot hit the deceased on the left upper thigh, which is not a vital part of the body so as to cause instantaneous death. Had the accused any intention to cause the death of the deceased, he would have fired at a vulnerable part of the body which was likely to prove fatal.
29. Per contra, the learned Additional Advocate General has argued that the accused has rightly been tried, convicted and sentenced under Section 302 of the Indian Penal Code since he has intentionally committed the murder of the deceased with his gun. In support of this contention, he has referred to State of U.P. v. Virendra Prasad 2004 Cri LJ 1373 (SC) and Hari Prasad v. State of U.P. : (2003)9SCC60 . In State of U.P. v. Virendra Prasad (supra), the Hon'ble Supreme Court has observed thus:
14. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case 1958 Cri LJ 818 (supra) for the applicability of clause 'thirty' is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300. IPC culpable homicide is murder, if both the following conditions are satisfied i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of bodily injury, and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be inflicted.
15. Thus, according to the rule laid down in Virsa Singh case (supra) even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder, illustration (c) appended to Section 300 clearly brings out this point.
30. This plea has been raised by the learned Counsel for the accused only at the appellate stage and not before the trial Court. However, on careful examination of the facts and circumstances of the case as well as material on record, it is seen that there was a land dispute between the complainant party and the accused which also took the form of civil litigation. The defence witnesses have proved the existence of civil litigation between the parties. In his statement under Section 313 of the Code of Criminal Procedure, the accused has also stated that there was a dispute regarding possession of the land and a civil litigation was also pending in this regard. D.W. 2 Parmodh Singh son of Kishan Singh has stated that he is the co-sharer of land measuring 35 kanals and 16 marlas in village Nangal Kalan, a part of which was sold by his brother Mangal Ram to Soma Devi, wife of accused Gopal Singh. In his cross-examination, he states that Sukhdev Singh was a co-sharer in this land. P.W. 4 has stated that he had purchased the piece of land from Sukhdev Singh who is stated to be a co-sharer in the land sold to Soma Devi as per the statement of D.W. 2. The fact that Gopal Singh accused came to the spot when the complainant party was cutting bushes from the said land and claimed that the same belonged to him and further threatened the deceased and his kin with dire consequences if they did not stop cutting the bushes therefrom, shows the animosity of the accused towards the deceased and the complainant party regarding the ownership of the land. The intention of the accused can be gauged from the fact that after abusing and threatening the complainant party he, along with his servant Ramu, went to his house and later returned within 15-20 minutes with a loaded gun and fired two gun-shots from it, one of which hit the deceased and caused his death. Any person, firing from a gun and that too a 12-bore gun, in the normal course, would be very well aware of the consequences of such an action. If the accused had no intention to cause the death of Niranjan Singh, he would not have returned after 15 minutes with the loaded gun. It cannot be said that there was any altercation or quarrel and the gun-shot was fired in the heat of the moment. Rather, it seems to have been a pre-meditated and well thought-out act on the part of the accused. The subsequent conduct of the accused also shows his guilt. On seeing that he had hit Niranjan Singh, the accused ran away and could not be apprehended by his pursuers. As per the record, he was absconding and a search was conducted for him. He later on surrendered on 10-10-2001.
31. Regarding the contention that the deceased sustained the gun-shot injury on the left upper thigh and not on any vital part of the body, which shows that the accused had no intention to cause his death, in our opinion, there is no force in this argument, for the reason that it cannot be said that on which part of the body of the deceased the accused was aiming at, although the bullet hit the deceased on the left upper thigh. It is to be kept in mind that the accused was firing from in between the fully grown maize crop and the deceased was cutting bushes on their land. Where a bullet may hit a person cannot be determined so as to ascertain intention or lack of it. In this case, as per the post-mortem report Ex. PX, 'Abdominal cavity lower half was full of blood. Small and large intestines were perforated with pellets. Only eight small pellets, Vz cm in size circular in shape with irregular surface were recovered from the abdominal cavity and intestines (shown in figure). Plastic wad and eight pellets were handed over to police'. The doctor conducting the postmortem has opined 'In my opinion death is due to shock due to haemorrhage caused by gunshot injury. However final opinion after chemical examiner's report'. The injuries sustained by the deceased were of a serious nature since the bullet penetrated the lower abdominal cavity through the left upper thigh and perforated the small and large intestines of the deceased. Therefore, it cannot be said that since the deceased sustained the bullet shot wound on the left upper thigh, which is not a vital part of the body, the accused had no intention to cause his death.
32. In our considered opinion, the accused has rightly been convicted and sentenced under Section 302 of the Indian Penal Code and offence does not deserve to be converted into one under Section 304, Part II of the Indian Penal Code. The trial Court has rightly convicted and sentenced the accused under Section 302 of the Indian Penal Code and under Section 27(1) of the Arms Act and we find no cogent reason to interfere with the well-reasoned judgment and order challenged by the accused in this appeal.
33. We have given our careful consideration to the arguments of the parties, and the material on record. In the facts and circumstances of the case, we are unable to accept the contentions urged by the learned Counsel for the accused.
34. There is no merit in the appeal, which is accordingly dismissed.