Kamlesh Sharma, J.@mdashThis appeal, at the instance of Appellant - convict Megh Singh, is against the judgment dated 6.6.1994 passed by Sessions Judge, Sirmaur District at Nahan, whereby he has been convicted of the offences u/s 302 IPC and Section 27 of the Indian Arms Act and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5000/- for the offence u/s 302 IPC and in default of payment of fine to undergo rigorous imprisonment for a further period of two years. For offence u/s 27 of the Indian Arms Act, the Appellant has been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 200/- and in default of payment of fine to undergo rigorous imprisonment for a further period of two months. The substantive imprisonment awarded is to run concurrently.
2. The case against the Appellant-convict was initiated by lodging F.I.R. Ext.PA in Police Station, Paonta Sahib, by Sarwar Ali, Pradhan, Gram Panchayat, Puruwala, PW-1, on 11.9.1993 at about 1 PM. The Appellant-convict who was under the influence of liquor came to his house and told that he had done whatever he intended to do and the police be called telephonically and he be got arrested. At that time Ram Kumar son of Kalu Ram, PW-2, and Ram Piara son of Nisa Ram and others were also sitting in his house. According to Sarwar Ali, the Appellant-convict was though under the influence of liquor yet he was talking sense. Immediately thereafter the father of Appellant-convict namely Gulab Singh also came there and informed Sarwar Ali that his son, the Appellant-convict, may not be allowed to escape and he asked Sarwar Ali to ring up the Police. On his enquiry Gulab Singh told that the Appellant-convict had damaged the eyes of his wife Pushpa Devi. Upon this Sarwar Ali and Ram Kumar, present at his house, went to the house of Gulab Singh, the father of Appellant-convict, and found Pushpa Devi dead. Her dead body was lying on the floor in one of the rooms covered under a cloth sheet. There were many injuries on her face particularly around her eyes. On further enquiry of Sarwar Ali, Gulab Singh told that a little while ago the Appellant-convict had killed his wife with the gun shot. Sarwar Ali further informed the police that leaving the Appellant-convict under the surveillance of the villagers he had come to report the matter to the police.
3. During the investigation, autopsy was conducted on the dead body of Pushpa Devi by Doctor Sumesh Pandey, Medical Officer, Civil Hospital, Paonta Sahib, who has appeared as PW-6. He has placed on record the inquest report Ext.PB and post-mortem report Ext.PK. The injuries found on the dead body and the other observations of the Doctor are as under:
Injuries:
1. Right upper half of the face lacerated with visible muscle and brain matter of the size of 6" , in length and 5" in breadth. The skin over the wound was not visible.
2. Right frontal bone, left frontal bone and orbital bone of right and left side alongwith right zygomatic bone absent with some pieces embedded in the soft tissues.
3. Both eye ball absent.
4. Nasal bone fractured and lacerated/exposed paranasal sinus both side. Margin of the wound lacerated. No gun powder marks found around the wound. No other injury mark such as pellet injuries outside the area of the above wound was found.
5. 20 pieces of small lead pellets present embedded in the brain matter.
6. 2 pieces of round plastic substance (part of the gun cartridge) were found embeded in the soft tissues of brain.
One piece of Cylindrical substance of cardboard found embeded in the brain matter.
7. No exit wound was present.
Cranium and Spinal Cord
Commuted fracture frontal right and medial half of left right parietal, right maxillary.
Membrane-Brai n-Spinal
Whole of the careanal hemisphere lacerated except for occipital region (including the membrance).
4. In the opinion of the doctor, Pushpa Devi had died due to shock caused by direct injury to brain including vital centres and the cause of injury appeared to be application of sudden explosive force on right side of face most likely gun shot injury fired at point blank range. The time elapsed between injury and death was instantaneous and between death and post-mortem was within 36 hours.
5. In the corss-examination, the doctor has admitted that it was his first case of post-mortem of a dead body where death had occurred due to gun shot injury. He has explained that by "point blank range'' he meant, "the muzzle of the barrel was either touching the site of the wound or it was close to that part of the body." He had ''given this opinion for the reason that there were no marks of gun powder around the site of the wound. He has also stated, "if there is distance of one to two feet or more, marks of gun powder would appear around the site of the wound." He has based his opinion on Modi''s Medical Jurisprudence but in the next breath he has contradicted himself by stating that, " when a gun shot is fired from point blank distance there would be scorching and blackening at the site of the injury In the present case, a big chunk of the fore-head had been blown out and because of this there was no tattooing, scorching. " He could not admit or deny the suggestion that gun shot injury might have been received by Pushpa Devi in scuffle leading to accidental triggering of the gun. Admittedly, the gun Ext.P-1 was not shown to the doctor to enable him to tell whether injuries found on the. dead body of Pushpa Devi could be caused by its fire from close range or not.
6. In support of its case the prosecution has produced Sarwar Ali, PW-1, who has reiterated his statement u/s 154 Code of Criminal Procedure . on the basis of which F..I.R. Ext. PA was recorded. The police had conducted inquest in his presence and he had signed the inquest report Ext.-PB. The possession of gun vide Ext.P-1 vide memo Ext.PC, two live cartridges Ext.P-2 and P-3 vide memo Ext.PD, gun licence Ext.P-6 and photograph Ext.P-7 vide memo Ext-PE, one pellet Ext.P-5 of fired shot vide memo Ext.PG and empty cartridge vide memo Ext.PH were also taken in his presence and he has signed all these memos. He has stated that gun was in dismantlled state when "it was taken into possession and Its sketch map is Ext.PJ. He has also stated that the Appellant-convict used to often quarrel with deceased Pushpa Devi due to his drinking habit. In his cross-examination he has stated that distance between his house and that of Appellant-convict is around 300 metres and there are several houses or, the way. He has admitted that the voice of Appellant-convict was though slurred because of intoxication yet the statement made by him was in clear voice. According to him, before he could make further enquiry from the Appellant-convict his father has arrived and told that he had killed his wife. He has also admitted the,'' presence of Jaswant Singh, brother of the Appellant-convict, his children and several other villagers on the spot. He has further deposed that when he reached on the spot after lodging the complaint there were lot many persons inside the room so he could not observed the spot properly to state whether the gun was lying on the cot at that time or not. He has admitted that at no point of time Gram Panchayat has received any complaint that Appellant-convict and his wife deceased Pushpa Devi used to quarrel except that about 6/7 years ago once she had left the society of the accused and started living with her parents but on the intervention of some respectable persons of the village she was persuaded to return to her matrimonial home. This witness has further admitted that in the month of June, 1993 one Mast Ram had lodged a report against the brothers, sons and nephews of the Appellant-convict at Police Station, Paonta Sahib, but he has denied the suggestion that after the registration of the said case Balak Ram, Ram Kumar, Ram Piara, Iltaf, Sarwan Kumar and other villagers had boycotted the family of Appellant-convict and formed a common front against them. He has denied the suggestion that it was on his asking that how Pushpa Devi had died, Appellant-convict had told that pre-destined had happened. He has further denied that Gulab Singh had not come to his house and complained that the Appellant-convict had smashed the eyes of his wife by means of gun shot.
7. Witness Ram Kumar, PW-2, has supported the version of Sarwar Ali, PW-1, to the extent that he had gone to his house for discussing the matter regarding taking of the loan from the society and Ram Piara and Bhangi Ram were also there when Appellant-convict had reached there and proclaimed that he has done what he intended to do and Police be called. He was followed by his father Gulab Singh who told that he had smashed the eyes of his wife and the police be called telephonically but he had not disclosed that how it was done. Thereafter, Pradhan Sarwar Ali had left the place to lodge the report with the police. In the cross-examination, this witness has stated that Appellant-convict was slightly drunk, looking unnerved and his voice was slurred when he came to the house of Sarwar Ali, Pradhan, PW-1. He has denied the suggestion that in fact the Appellant-convict had told that his wife had denied and he might be permitted to ring up the police and that on the enquiry made by Sarwar Ali, PW-1, that how she had died, the Appellant-convict had replied that pre-destined had happened.
8. The prosecution had produced Rameshwar Dass, PW-4, father, Luxmi Devi, PW-5, aunt (Mausi) of deceased Pushpa Devi to prove that the relations between the Appellant-convict and Pushpa Devi had become strained after 4/5 years of their marriage as the Appellant-convict had started taking liquor and quarrelling with his wife under its influence. Rameshwar Dass, PW-4, had stated that Pushpa Devi used to leave her matrimonial home after she was beaten and battered by Appellant-convict but after a few days she used to return to her matrimonial home on the intervention of elders and relatives. Rameshwar Dass, PW-4, has also narrated an earlier instance of gun fire by the Appellant-convict with an intention to kill deceased Pushpa Devi, when his attempt was foiled as she had pushed the barrel of the gun upwards as a result of which the shot had hit the roof and a few pellets had struck at the fore-head of Appellant-convict and the police had siezed the gun. According to this witness, when Pushpa Devi had visited him last on the day of Raksha-Bandhan she had told that the Appellant-convict was demanding a sum of Rs. 80,000/- to buy a motor van but he had shown his inability to fulfil it. In cross-examination, though he has stated that deceased Pushpa Devi used to write him letters containing the account of ill-treatment meted out to her by the Appellant-convict but he could not produce those letters. He was confronted with his statement in which there is no mention of the earlier incident narrated by him. Luxmi Devi, PW-5, in her cross-examination has admitted that she had no complaint against the Appellant-convict except that he used to take 1iquor.
9. The prosecution has also produced Sarwan Kumar, PW-3, to prove that on hearing the sound of a sort of blast from the site of the house of the Appellant-convict, he and one Balak Ram went there and found his wife in pool of blood on the floor of one of the rooms and he was standing nearby holding a gun. In cross-examination, he has admitted that the distance between his house and that of Appellant-convict is 200 yards and there were about 5/10 houses in the vicinity. He was standing at a distance of 60-70 metres when he had heard the blast. He has denied that Gulab Singh, father and Jaswant Singh, brother of Appellant were also present at the spot. According to him, seeing the gun in the hands of Appellant-convict he and his companion Balak Ram got scared and fled away. His statement was recorded by the police 8/10 days after the occurrence. He has denied the suggestion that he, Sarwar Ali, PW-1, and several other villagers had formed a common front against the Appellant-convict and his family and had boycotted them and had involved them in a false case. The statements of other witnesses are not material in view of the defence taken by the Appellant-convict, hence need not be referred to. In nutshell, the case of the prosecution as revealed from the statements of eye witnesses and F.I.R. is that the Appellant-convict had killed his wife by gun shot.
10. By his statement u/s 313 Code of Criminal Procedure the controversy has narrowed down. He has admitted in is statement that he had got married with Pushpa Devi 20 years back but he has denied that she was being ill-treated by him.and she used to often go to her parents'' house after being beaten and the matter used to be compromised on his tendering apology. He has also denied the earlier incident of shooting as well as demand of an amount of Rs. 80,000/-. In Answer to Question No. 8, he has categorically stated that he had told the Pradhan that his wife had died and he wanted to inform the police by making the use of telephone installed at his residence and at that time he was slightly drunk. He has denied the prosecution story that Appellant-convict was being followed by the father Gulab Singh who told Sarwar Ali, PW-1 that the Appellant-convict had smashed the right eye of his wife''by firing a gun shot on her and he be not allowed to leave the place till police was called uhere to arrest him. But in his further deposition, he has admitted the presence of Ram Kumar and Ram Piara, who were left to guard him by Sarwar Ali when he went to the local Police Station. He has admitted that inquest report was prepared in his presence and as per the post-mortem report injuries were found on the dead body of Pushpa Devi as stated by Doctor Sumesh Pandey, PW-6. He has admitted that gun Ext.P-1 was seized from him at the time of his arrest and live cartridges Ext.P-2 and P-3 and empty cartridge P-4 were collected from the spot and licence Ext.P-6 and photograph Ext.P-7were taken into possession in his presence. The blood splashed on the floor of the room where deceased Pushpa Devi was lying dead was also taken into possession vide memo Ext.PF in the presence of Appellant-convict. He has also not denied the recovery of one pellet Ext. P-5 of fired shot from the room vide memo Ext.PG and preparation of sketch map Ext.P-1 of the gun. The report Ext.PQ of Central Forensic Science Laboratory that empty cartridge P-4 was fired through the gun Ext.P-1 has also not been denied by the Appellant-convict but he has not admitted that Sarwan Kumar, PW-3, and Balak Ram happened to pass through his house and saw through the window his wife lying dead and him holding the gun. In reply to Question No,29 that why witnesses had deposed against him he "has explained that,"All the residents of the village have boycotted our family because there was a quarrel between us and a brother of one Balak Ram, for that reason the villagers have made false statements against me."And further in answer to Question No. 30 he has explained that," That day my wife got up early in the morning, took her bath and went to the village Khera ( a place of worship) and after return from the Khera, she provided me hot water for taking bath, thereafter I went to a wine shop and brought a pint of liquor and drank that liquor before mid day meals. I and my wife took our meals together. Thereafter I wanted to go to the fields with a gun. She tried to snatch the gun from me and in that process the trigger got pressed accidently and the shot hit her on the fore-head and she died."
11. In defence, the Appellant-convict has produced his brother Jaswant Singh, DW-1, and his son Rajeev Sing, DW-2. Jaswant Singh, DW-1, was cited as witness by the prosecution alongwith his father Gulab Singh but given up on the ground that they were won over by the Appellant-convict. Both these witnesses have stated that relationship between deceased Pushpa Devi and Appellant-convict were cordial throughout. On 11.9.1993, they were present in the courtyard alongwith Gulab Singh when they saw Appellant-convict and deceased Pushpa Devi taking meals in their room facing the courtyard at a distance of a few feet. After taking the meals, the Appellant-convict stood up and picked up the gun for going to his fields but he was prevented by deceased Pushpa Devi by catching hold of the gun''from barrel and its butt was in the hands of accused. Before these witnesses could intervene, the gun went off and its shot hit Pushpa Devi on her face and she fell on the ground. Simultaneously, the gun had also fallen on the ground. The Appellant-convict left the spot saying that he would inform the police telephonically from the house of the Pradhan of the Panchayat. Thereafter , the police arrived and several persons from the neighbourhood gathered at the scene of occurrence. Rajeev Singh, DW-2, in his cross-examination, has admitted that his father was habitual drunkard but has denied that he used to beat his wife and the two used to quarrel with each other. Both these witnesses have admitted that after the incident they had not reported to anybody that the Appellant-convict was not responsible for the killing of Pushpa Devi, who happened to die in an accidental fire (sic). Witness Jaswant Singh, DW-1, has also stated that the room where incident had taken place is not visible from the path. He has admitted that there is a cock above the trigger of his gun and unless that cock is removed, the trigger would not work. He has also denied the suggestion that the villagers have boycotted him and other members of his family only after the incident. This witness had admitted that earlier gun was seized by the police from the Appellant-convict but according to hirn it was for firing at a stray dog and not for firing at his wife by the Appellant-convict in which the pellets had hit the roof and on rebounding his fore-head.
12. We have heard learned Counsel for the parties and gone through the record. Shri Kuldip Singh, learned Counsel, appearing for Appellant-convict, has challenged the findings of the Sessions Judge on the following points:
i) That the Appellant-convict had made extra judicial confession in the presence of Sarvar Ali,PW-1 and Ram Kumar, PW-2;
ii) The statement of the father of the Appellant-convict Gulab Singh who had followed the Appellant-convict to the house of Sarwar Ali,PW-1, that the Appellant-convict had smashed the eye of his wife and he be not allowed to go and kept under the surveillance was relevant u/s 6 of the Indian Evidence Act because it forms part of the same transaction of killing Pushpa Devi by Appellant-convict and thereafter his coming to the house of Sarwar Ali, PW-1, Pradhan, Gram Panchayat and making confession before him and others.
13. In order to substantiate his submission in respect of the findings of Sessions Judge on 1st point, Shri Kuldip Singh has urged that the alleged extra-judicial confession was made to the person in authority i.e. Pradhan,Gram Panchayat, as such it was not relevant being not voluntary and independent as provided u/s 24 of the Indian Evidence Act. For making the submission he has relied upon the judgment dated 2.2.1990 passed in the Criminal Appeal No. 69 of 1986. Shri Kuldip Singh,learned Counsel, has further pointed out that the alleged confessional statement of Appellant-convict is vague and ambiguous. Even the words stated to have been used by the Appellant-convict do not constitute confession.
14. On the other hand, Shri C.L. Sharma, learned Additional Advocate General, appearing for the Respondent-State, has supported the findings of Sessions Judge. He has referred to a Division Bench judgment
15. After giving our best consideration to the rival contentions made by learned Counsel for the parties, we find substance in the argument of Shri Kuldip Singh, learned Counsel. The alleged extra-judicial confession made to Sarwar Ali, PW-1, who was admittedly the then Pradhan of the Gram Panchayat, a person in authority, cannot be treated as voluntary and indepedent confessional statement as held by the Division Bench of this Court in Teg Singh v. State in the judgment dated 2.2.1993 in Criminal Appeal No. 69/86. Moreover, Sarwar Ali, PW-1, as well as Ram Kumar, PW-2, have not given the exact words used by the Appellant-convict and have only stated that the Appellant-convict had proclaimed that he had done what he intended to do and that the police be called telephonically and he be got arrested. The Sessions Judge has interpreted this statement to mean that Appellant-convict had admitted that he had killed his wife by gun shot which inference is not called for, as the statement of confession should be in clear and in no un-certain terms and not vague, ambiguous and implied. In
16. The other submission of Shri Kuldip Singh, learned Counsel, also deserves to be upheld that the statement of Gulab Singh, father of Appellant-convict, made before Sarwar Ali, PW-1, and Ram Kumar, PW-2, is not relevant u/s 6 of the Indian Evidence Act and can not be relied upon as part of the same transaction of killing of Pushpa Devi by Appellant-convict and thereafter making statement before Sarwar Ali, PW-1, and Ram Kumar,PW-2. Section 6 of Indian Evidence Act is as under:
6. Relevancy of facts forming part of same transaction .-Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
Illustrations
(a) A is accused of the murder of B by beatinc him. Whatever was said or done by A or B or the by-standers at the beating,or so shortly before or after it as to form part of the transaction, is a relevant fact.
(b) A is accused of waging war against the Government of India by taking part in the armed insurrection in which property is destroyed, troops are attacked and gaols are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.
(d) the question is,whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact.
As per this provision of law facts which are connected with a fact in issue as to form part of the same transactions are relevant whether they occurred at the same time or place or at different times and places. As stated in Illustration (a) whatever was said or done by an accused or by the victim or the by-standers at the time of occurrence forms part of the same transaction is a relevant fact. In the context of the present case, the statement of Gulab Singh, father of the Appellant-convict, would be relevant as part of the same transaction if he had witnessed it as a by-stander and he must come forward to make the statements in the Court. The statements of Sarwar Ali, PW-1, and Ram Kumar, PW-2, before whom he is alleged to have made statement, are nothing but hear-say evidence. The word" by-stander" used in Section 6 of the Indian Evidence Act has been explained in Nasir Din alias Nasira v. Emperor AIR 1945 Lah 46 as;
The persons who are present at the time of the beating and not the persons who gather on the spot after the beating.
17. According to Section 6 what is admissible is a fact which is connected with fact in issue as part of the transaction. The transaction may consist of single incident happening in one go and at one place or chains of incidents happening at different places or at different times but they must be connected together by proximity of time or place or continuity of action, purpose or designs to constitute the same transaction. Nc doubt, the spontaneity of the statement is the guarantee of the truth, the reasons for its admissibility u/s 6 is that it is part of the same transaction. Above all, from illustrations u/s 6, it is clear that only that statement is relevant which is made by the person who has actually seen the occurrence and who uttered it simultaneously with the incident or soon thereafter as to make it reasonably certain that the speaker is still under the stress of excitement caused to him by seeing the incident.(See: AIR 1916 Cal. 188 ,
18. The next submission made by Shri Kanwar is that the prosecution has withheld the alleged eye witnesses i.e. Gopal Singh, father and Jaswant Singh, brother of Appellant-convict, leaving its case on circumstantial evidence. According to Shri Kanwar, the circumstantial evidence produced by the prosecution does not complete the chain of evidence to come to a definite conclusion that the Appellant-convict is guilty of murder. In support of his submission, he has referred to Supreme Court judgment in
19. On the face of it this submission of Shri Kuldip Singh,learned Counsel, is very attractive but on examination it is found without substance. The principle for appreciating the circumstantial evidence for returning the findings of guilt, as 1aid-down in Sharad Birdhichand v. State of Maharashtra (supra), are of great help in appreciating the submissions made by Shri Kuldip Singh. In this judgment, the Hon''ble Judges of the Supreme Court have referred to earlier decisions of Supreme Court in paras 152 to 164 of the judgment. The most fundamental and basic decision is
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused...
20. The learned Judge of the Supreme Court in Sharad Birdhichand (supra) have further referred to the case of
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ''may be'' and ''must be'' is long and divides vague conjectures from sure conclusions.
21. The learned Judges have also referred to the five golden principles termed as ''panchsheel'' of the proof of a case based on circumstantial evidence. These are:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conslusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
22. It was observed that the cardinal principle of criminal jurisprudence is:
...a case can be said to be proved only when there is certain and explicit evidence an''d no person can be convicted on pure moral conviction....
23. Referring to the argument, if the defence case is false it should constitute an additional link so as to fortify the prosecution case, the learned Judges have further pointed out that:
....before a false explanation can be used as an additional link, the following essential conditions must be satisfied:
(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved,
(2) the said circumstances point to the guilt of the accused with reasonable definiteness,and
(3) the circumstance is in proximity to the time and situation.
AND
If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend an assurance to the Court and not otherwise. On the facts and circumstance of the present case, this does not appear to he such a case. This aspect of the matter was examined in
Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in prder to succeed. A false plea can at best be considered as additional circumstance, if other circumstances point unfailingly to the guilt of the accused.
There is vital difference between an incomplete chain of circumstances and a circumstance which,after the chain is complete, is added to it merely to reinforce the conclusion of the Court. When the prosecution is unable to prove any of the essential principles laid down in Hanumant''s case (supra), the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea...
24. Further referring to the case
25. Applying all these principles to the the circumstantial evidence on record, we don not find any missing link in the chain of evidence which only points out to the guilt of the Appellant-convict and no other view is possible. As discussed by the trial Court, in paras 30 to 32, the defence version does not inspire confidence and it is nothing but an afterthought. Admittedly, the fire arm in question is a 12 bore shot-gun and it requires charging before the shot can be fired by pressing the trigger. To charge the gun one has to remove the cock in upward direction opposite to the trigger which requires good deal of force and it cannot be believed that cock and the trigger got pressed one after the other during the course of alleged scuffle between deceased Smt. Pushpa Devi and Appellant-convict. The argument of Shri Kuldip Singh''can not be accepted that there is a missing link which leaves a possibility that the gun could be fired off accidentally due to mechanical defect as in the report of the Ballistic Expert there is no mention that the gun was in perfect order. This argument has been raised to be rejected. The report of the Central Forensic Science Laboratory, Chandigarh,Ext. 40, is clear that the crime cartridge had been fired through the SBBL Gun and it could not have been fired through any other fire arm because every fire arm has its own individual charactristic marks. Had there been any defect in the gun, it would have been mentioned in the report as examination of the gun would not have been possible, if there was mechanical defect in the gun. The submission of Mr. Kuldip Singh that it might have gone off accidentally falls on the ground, hence the explanation provided by way of defence is falsified. The prosecution has satisfactorily proved various links in the chain of evidence which point out to the guilt of the accused with a reasonable definiteness that it was the Appellant-convict who had removed the cock and thereafter pressed the trigger to fire a shot on the face of the deceased Pushpa Devi resulting into her instantaneous death.
26. Another argument raised by Shri Kuldip Singh is that the medical evidence does not support the prosecution version inasmuch as Dr. Sumesh Pandey, PW-6, has stated that the gun was fired from a point blank range but the symptoms given of the injury do not tally with the symptoms given by the authors viz. Tailor and Modi in their books of Medical Jurisprudence to which he has referred to. In our opinion, this point does not arise in the context of he present case as it is not in dispute that Appellant-convict had fired at deceased Smt. Pushpa Devi from a point blank range and the doctor has stated that a big chunk of fore-head had been blown out as such there was no tattooing, scorching and blackening, which appear at the site of the wound as a result of shot from close range. The medical opinion also loses importance in the present case as gun was not shown to the doctor to ask him whether injury caused was as a result of fire shot from the close range or otherwise. No other point is raised on behalf of the Appellant-convict.
27. In the result, we don not find any merit in this appeal and it is dismissed. We uphold impugned Judgment. The bail bonds are cancelled and Appellant-convict is directed to surrender and undergo the sentence.
