Sewa Singh v. State of Punjab

Judgment

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 60 of 196:!. Appea.l by speoia.l Lea.ve from the judgment a.nd order da.ted October 25, 1961. of the. Punjab High Court in Criminal Appea.l No. 890 of 1961 of Murder Reference No. 74 of 1961. Jai Gopal Sethi. G. L. Sare,en a.nd R. L. Kohli, for a.ppella.nt. Gopal Singh, D. Gupta, P. D. Menon, for respondent. 1962. April 27. The Judgment of the Court wa.s delivered by DAS GUPTA, J.- The Appellant was oonvic· ted by the SeBRions Judge, Pa.tie.la., of a.n offence under s.302 of the Indian Penal Code for the murder of Gurdev Singh a.nd sentenced to death. The Punjab High Court dismissed his a.ppeal and confi. ned the sentence of death. The present a.ppea.1 is on the strength of special granted by this Court. The prosecution case is tha.t at about 2.30 p.m. on November 18, 1960 when Gurdev Singh wa.s pa.BBing the tea-stall of Charan Singh, not far from the Qourts a.t Barna.la. on a. motor cycle, the appellant Sewa.

Singh, who wa.s at tha.t time in tha.t shop with a. don hie ba.rrel gun stood up and fired a. Bhot a.t him. Gurdev Singh was hit on the right aide of his ohest and died instantaneonsly. The appellant a.nd one Gogar Singh, who we.a with him, ra.n a.wa.y. The a.ooused pleaded not guilty. It was not disputed that Gurdev Singh had died of a gun mot _,,i, 2 S.C.R. injury at the time and place as alleged. _ It was strenuously contended, however,, that he was not the culprit. . · . According to the prosecution this occur!ence was witnessed by Charan Singh, the owner of the shop and Mukhtiar Singh, a Student, ·and Bakhta'. war Singh, the two persons who ~ere. havmg tea in the shop. · At the trial Charan Singh denied any knowledge a~ to who had fired the shot and was declared hostile by the prosecution. The other two witnesses gave evidence that they saw the present appellant, who was known to them from before, firing the shot from a double barrel gun.

Their evidence was believed by the Trial Judge and also by the High Court. In support of the appeal it is contended by Mr. Sethi that we should look at the evidence ourselves as the High Court does not appear to have tak__!ln into consideration, in appreciating the evidence, the Characteristics of the injuries caused by the shot. He has. drawn our attention to a decision of this Court in_ Zora Singh v. The Stare of, Punjab (Criminal Appeal No. 81 of 1957: Judgment delivered on 10-5-1957). According to the learned Counsel these featu. - res of the injury as they appear from the Doctor's evidence clearly show that when the gun was fired it was held in· close contact with the I?ody of the victim or within two or three inches of it.

This, argues the learned Counsel, shows that the/witnesses. who have claimed to have been the occurrence did not actually see the occurrence as they give a totally different version as regards the distance of the gun from the body of the victim. --- It has to be mentioned that -the judgment· of the High Court contains no discussion on this point and it does not appear that the attention of the learned Judges was Sewa Singh State of PUnjaJ Das Gup!a J lHI StUf!S Sinth BIM< of P..job Ber awpla J. MS SUPREME OOURT REPORTS [1963) dra.wn to the features of the injury on which we a.re now asked to hold tha.t the shot whioh killed Gurdev Singh was fired from a vt!lry close range, not exceeding a few inches. Even so, we have thought it proper to hear the Counsel on this question, ns in· our view these features ought ordinarily to b9 taken into consideration in assessing the value of the evidence of t.he eye-witneBSes. The doctor's evidence 1hows:

( l) that the wound caused w11s a roundish wound 1-1/2" x 1·1/4" oommunic11.ting with the right chest oa.vity; (2) that the wound was plugged with a oork wadding and card board disc of 12 bore cartri· dge; (3) that the right fourth aml fifth ribs were blown off und~r the wound and also the right lung was punctured over an area 2-l/2"x 2· about in its middle lobe a.bout its interior margin in tho middle which was blown off; (i) that the woollen coat, which was on the body of the deceased, was blood· st&ined with a corresponding rent blackened charred; the shirt was also blood stained with a correspondieg rent blackened. The doctor gave the opinion that the distance from which the shot was fired might be three to four feet. Th'lre was some croas· examination of the doctor in the Committing Court but the correctness of this opinion was not challen. ged. The doctor did not appear to give evidence before the Se~sions Court.

His deposition as recorded by the Committing Uourt was treated as eyidence in the Sessions Court under the provisions of s.509 of the Code of Criminal Procedure. Turning first to the size of the wound it appears to us that far from supporting the theory of death having been caused by a contact shot it indicates that the shot was fired from about a yard a.way. Speaking of ordinary shot-g'uns, Sir Sidney Smith in his Forensic Medicine, 9th Edition; page 182 ea.ye: "At about a yard the charge of shot will enter a.s one ma.88, making a b,ole witl;I irre11ula.~ 2 S.C.R. SUPREME OOURT REPORTS edges about an inch in diameter." Major Sir Gerald Burrard in his Identification of firearms and Fore·- nsic Ballistics says at P.73: "It may be assumed for all practical purposes that if the diameter of the wound is an inch, or less, than the distance of the shot was 18 inches or under, irrespective of the gauge of the shotgun or the degree of choke.

Up to 2 feet there is very little difference in the spread between guns of various and different chokes, the hole at this distance being slightly over an inch in diameter. At 3 feet the hole is nearly 1-1f2 i,nches in diameter, and the difference between the two extremes of boring, true cylinder and foll . choke, begins to be evident.' In Lyon's Medical Jurisprudence, 10th Edition, we find stated at p. 279 thus:...:., "At a distance of 3 feet the shot mass begins to spread, the wo~nd is an inch or slightly more in.diameter." In Taylor's Principles and practice of Medical Jurisprudence, 11th Edition, the matter is described thus at page 334:-In the case of shot-guns the distance from which the weapon was fired may be deduced from the amount of scattering of the charge. Up to about a yard the whole of the charge enters in a mass, producing a round hole about the size of the bore of the weapon ........ . "

In ·view qf these authorities, it is reasonable to hold even without knowing whether the gun had an unchoked or a choked barrel that a roundish. wound of 1-1/2" x 1-l/4" would be caused if the gun is fired at a distance of about a yard. We are unable to agree that the burning of the clothes as described by the doctor is any indication that the shot was fired from within a few inches. Mr. Sethi has drawn our attention to the statement made in the several text books that when the gun is fired from a distance of only a few inches the wound would be surro\mded by a zone of black- . ,niDg' snd bvrniDg. In the present cue no mar~ Sewa Singh I St.I< if l'wi;ab • SITDd Sintli Stat. of Punjob Doi Gupta J. SUPREME OOURT REPOR'.l'S [1963] of blackening or burning were noticed by the doctor on the skin round the wound or in the depths of the wound; but the rent in the woollen coat wa.s found blackened and charged and the rent in the shirt blackened.

On this question it is important to mention the opinion as given in the Taylor's Principle and Pra.etice of Medical Jurisprudence, l 0th Edition a.t p. 441 thus:- "The a.mount or degree to which the clothes and body of a person may be burnt by the near discharge of firearms bas given rise to a medico-legal inquiry. The facts in any given case can be determined only by experiments with the actual weapon used, and loa.ded· 11s nearly as possible in the same manner a.s it wa.s when used for the purpose which are being investigated. It is impcJssible to state rules as to the precise distance from which it is possible to produce marks of burning, for this depends on the quantity and nature of the powder, the method of charging, and the nature of the weapon. It is unusual, however, to get marks of burning beyond a yard or a yard and a half with a shot-gun, or at more than half a yard with a revolver."

According to this view therefore marks of burning may be found in the clothes or body of a person if the shot was fire<l at a distanc~ of a yard or a yard and a half with a shot-gun. Even though thi;i opinion ill not reiterated in Taylor's I Ith Edition, it seems oiea.r, in view of this opinion that the presence of the burning marks in the clothes cannot from a. reasonable ha.sis for holding that the gun wa.s fired in this case from the close range of a few inches only. It is necessary next to considtir the fact that the cork was found lodged in the body. G la.ister 2 S.C.R. . in Medical Jurisprudence and Texicology, 9th Edition at p. 265 says, while speaking of a shot fired close to the body surface up to a few inches that "the wad· may be forced in the wound." It appeas to be clear that in a contact wound the wad is likely to enter the body.

But the authorities are not so clear to the maximum distanoe at which the wad may enter the body. · The nearest s.tatement appears to be given by Sir Sidney Smith· in his Forensic Medicine, 9th Edition at p. 182 thus :-·'the wads enter with the projectile in bear discharges." &ading this statement in the light of the discussion in the previous paragraphs, it appears to us that a discharge up to yard has been considered by the learned author as a near discharge. The fact that the wad was lodged in the wound appears therefore to be quite consistent with the shot having been fired from about a yard. It remains to consider what. thti doctors has described as the "blowing off" of the ribs and a part of the right lung. This description, if correctly' given, indicates the entry of gas into the wound and that, it is true, ordinarily takes place only if the shot is fired within a few inches of. the body.

As we have already noticed however, the dimension of the wound ifself is a clear indication that shot was fired at a distance of about a yard. There is thus some apparent inconsistency between .what is indicated by the size of the wound and what the doctors has described as "the blowing off" of the ribs and a par of the right lung. As there is less likelihood of any mistake being made in the measurement of the wound than about the doctor's view about the "blowing off" of the ribs, we are of opinion that what the do,ctor has described as "blowing off" is not . a good reason for thinking that the shot was fired only a few inches off from the body. Sewa Singh Str.i.t1 of Puf!jafl Das Gupta J. /Jfltll• 5;,.,. SleN •/ Punj,b Das Gupl•J· A.t, ii ao SUPREME OOURT REPORTS [1963)

On a consideration of all the features of the wound as described by the doctors together, we have come to the conclusion that the doctor's opinion as given in hie examination-in.chief, which was not challenged in cross-examination before the Committing Magistrate. that the shot may have been fired about three to four feet away should be accepted ae correct. We find no reaaon therefore interfere with the &Blleeement of evidence as made by the High Court and also with the order of conviction and sentence paBBed by it. The appeal is accordingly dismissed. Appe,al di8fni881!1l. KUM<\R BIMAL CHANDRA SINHA STATE OF ORISSA (R. P. SINHA, c. J., K. SUBBA RAO, N. RAJAGOPALA AYYANGAR, J. R. MuDHOLKAR and T. L. VETKATARAMA. AIYAR, JJ.) E•tat.•, Abolition of-Raiyati right purch<ued bf proprietor-Building on occupanc" holding, u.<ed""

Kakheri- Notijicalion vuting .,tale in the Stat.-EJ!ecl-Wh<rlur building on occupanry holding veata in the Stare-OriSBa EBlalea Abolition Act, 1951 (OrisBD 1 of 1952), "· 21g}, (h) ,(i}, 3, 5, 26. :fhe appellants held the Paikpara estate as proprietors. They had purchased the properties in question comprising rai!Jali lands with certain buildings thereon from the raiyal. Thuc; the proprietor11 became occupancy raiyata under the tenure holders or sub-proprietors. By virtue of a notification issued under s. 3 of the Orissa Estates Abolition Act. 1951, the Paikpara estate vcstca in the State of Orissa. But the interc~~t of t~nure holders and sub·proprie~ors within the estate had not been taken over under the provisions of the Act.