Jabar Singh vs State Of M.P

O R D E R

This is a statutory appeal challenging the order of

the High Court whereby the appellant has been convicted and

sentenced to imprisonment for life for the offence

punishable under Section 302 of the IPC.

As per the prosecution story one Badan Singh, a

cousin of Sarnam Singh (deceased in the present case) had

been murdered about 25 years ago whereafter Inder Singh and Ramjit Singh, sons of Badan Singh had sold their land to

the deceased and had left the village. The house of Badan

Singh was also being occupied by Sarnam Singh. The

relatives of Badan Singh suspected that one Kedar Singh was

responsible for his death. On 11th November, 1984, the dead

body of Kedar Singh was seen floating in the canal and the

accused in the present matter suspected that Sarnam Singh

and some others connected with him were responsible for his

death. On 13th November, 1984 at about 8 or 9 P.M. the

accused, all armed with fire arms, entered the house of

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Sarnam Singh whereafter Jabar Singh, the appellant herein, fired a shot at him which hit him on the navel and exited

from the right buttock. Sarnam Singh, grievously injured,

managed to run away towards his fields where he fell down.

The other accused remained standing on the Chabutra and

continued firing at Sarnam Singh though no shot hit him.

Sarnam Singh was removed on a Bullock cart to police

station Mehgaon by Sultan (PW.2), Umed Singh (PW.5),

Munnalal (PW.1), shiv Narayan (PW.8) and Chhote Singh

(PW.10) where Sarnam Singh himself lodged the FIR at 0.45

hours on 14th November, 1984. Dr. F.C.Bansal (PW.4) also

examined Sarnam Singh and noted several injuries on his

person. He also arranged for the recording of his dying

declaration on which Amrish Shrivastava (PW.15) an

Executive Magistrate, was deputed and he recorded the dying

declaration (Ex.P.12). Sarnam Singh was also referred to

the Gwalior Hospital where Dr. C.S.Jaiswal (PW.16) recorded another dying declaration (Ex.P.13). Sarnam Singh

succumbed to his injuries on 28th November, 1984 where after

his dead body was subjected to a post-mortem by Dr. R.C.

Upadhyaya (PW.14).

The Trial Court on a perusal of the evidence as also

the four dying declarations referred to above held that the

accused had not been properly identified and as there

appeared to be long enmity between the parties, the

possibility of false implication could not be ruled out.

The accused were accordingly acquitted.

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The State of Madhya Pradesh thereafter filed an

appeal in the High Court. The High Court maintained the

acquittal of four of the accused but reversed the judgment of the Trial Court with respect to Jabar Singh and

convicted him under Section 302 IPC and sentenced him to

imprisonment for life.

This appeal has been filed by Jabar Singh impugning

the judgment of the High Court.

We have heard the learned counsel for the parties

very carefully and gone through the record. We are of the

opinion that no fault could be found with the conviction of

the appellant. In the light of the eye witnesses' account

of several persons including the wife of the deceased and

the four dying declarations recorded at the instance of the

deceased before several independent persons including an

Executive Magistrate, we have no hesitation in upholding

the conviction of the appellant.

Mr. Lakhan Singh Chauhan, the learned counsel for

the appellant, has however argued that in the light of the medical evidence it was apparent that a case of murder was

not spelt out. He has highlighted that the incident had

happened on 13th November, 1984 and the injured Sarnam

Singh had died after 14 days thereafter and it was clear

from the medical evidence of Dr. Bansal (PW.4) and Dr.

Upadhayay (PW.14) that the gun shot injuries were not

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the immediate cause of his death and he had died due to

peritonitis which could not be attributed to the gun shot

injury as it had set in on account of improper care and handling by the attendants and the hospital staff. Dr.

Bansal who examined Sarnam Singh on 14th November, 1984,

specifically stated that the injury suffered by Sarnam

Singh was not fatal to life. Dr. Upadhayay was equally

categoric when he said that the death would ordinarily not

have been caused as the deceased had died due to lack of

care by the attendants of the deceased and as he had not

been properly treated in the hospital. He also admitted

that in the postmortem report he had no where observed

that the gun shot injuries suffered by the deceased would

have cause his death in the normal course of nature. In

this view of the matter we are of the opinion that a case

under Section 302 cannot be spelt out against the appellant

and he would at the most be liable for conviction under

Sec.326 of the IPC. We accordingly modify his conviction

from Section 302 of the IPC to one under Section 326 of the IPC and impose a sentence of R.I. of five years and a fine

of Rs.5,000/- and in default of payment of fine, to six

months R.I.

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The appeal is allowed to the above extent.

The appellant is on bail in view of the orders of

this Court. His bail bonds are revoked. He shall to be taken into custody forthwith, to serve out his sentence.

.................J. (HARJIT SINGH BEDI)

.................J. (C.K. PRASAD) New Delhi, August 12, 2010.