JUDGMENT
D.K. Patnaik, J.
1. In this appeal from jail the appellant assails his conviction for the offence under Section 302, I.P.C., and sentence of imprisonment for life.
2. Prosecution case is, on 6-6-1989 around 6.30 p.m. the appellant started abusing Angada (hereinafter referred to as the ‘deceased’) concerning some land dispute. Angada’s wife (P.W. 8) dissuaded the deceased and brought him back. The appellant went inside his house and came with a gun and fired the same at Angada causing gun shot lacerated injuries on the posterial axillary line of right side with fracture of the 10th rib and similar other injuries on the fore-arm of the left hand and the belly below the chest. Angada died sometime thereafter.
The appellant denied the indictment.
3. P.W. 5 is the doctor who conducted the postmortem examination on the dead body of Angada. On external examination he found three lacerated injuries out of which injury No. I was of the dimension 2.5 cm x 2 cm., with inverted margin with black color situated below the posterial axillary line of the right side with fracture of the 10th rib. The depth of the injury on ‘probing’ was found to be 20 cams. ‘direct forward’. On opening of the abdomen, the peritoneal cavity was found to have been filled with black colored blood and there was rupture of the right lobe of the liver. No pellets were, however, recovered from the body.
The injuries were found by the doctor to be ante-mortem in nature and death was because of the hemorrhage and shock due to rupture of the liver. It was further opined by P.W. 5 that the injuries were gun shot injuries.
Therefore, Angada died a homicidal death and the finding of the trial Court in this regard is affirmed.
4. Mr. S.K. Sahu, learned counsel for the appellant, strenuously urged that the case of the prosecution should not have been believed in view of the various infirmities in the prosecution case, such as, non-production of the gun before the Collector after the same was seized by the I.O. Secondly, while the witnesses stated that the gun was fired from the front, the medical opinion was otherwise and thirdly, it was contended that even if it was so fired by the appellant, it is highly improbable that P.W. 8 who was close to the deceased escaped unhurt.
5. These contentions of Mr. Sahu are only conjectures and not based on any evidence. The production of the gun before the Collector, had nothing to do with the appellant causing injuries by the fire arm which fact has been amply established by the evidence of the eye witnesses.
So far as the second point is concerned, the deceased received an injury which damaged the liver, and to that extent the evidence of the doctor (P.W. 5) cannot be said to be inconsistent with the evidence of the eye witnesses, particularly when he found the injury on the poslerial axillary line of the right side with fracture injury of the 10th rib. The doctor did not opine that this injury could have been possible by firing the gun from the back side.
So far as the third point is concerned, there is no evidence that P.W. 8 was walking so close with the deceased that she could have been injured. For all these reasons, we are unable to accept the contention of the learned counsel for the appellant.
6. There is no inherent improbability in the prosecution case.
P.W. 4 stated that he went to the place of occurrence on hearing the shout and found the appellant abusing the deceased. P.W. 8 wife of the deceased, was dragging away the deceased dissuading him not to quarrel with the appellant and at this time, the appellant went inside the house and brought out a gun and came on to the road in between the houses of one Dina Harijan and fired the gun.
7. This evidence of P.W. 4 has been duly corroborated by the evidence of P.W. 7 and P.W. 8, the wife of the deceased. The presence of these witnesses at the spot at that time being highly probable, their evidence has been rightly accepted as true.
With regard to distance, while P.W. 7 stated that the appellant fired the gun from a distance of 10 to 12 cubits, P.W. 8 stated that he fired it from a distance of 3 to 4 cubits, P.W. 8’s evidence has been duly corroborated by the version in the F.I.R., and so far as the injuries on the deceased is concerned, by the medical opinion.
8. It was submitted by the learned defence counsel that it is well established from the evidence of P.Ws. that there was a quarrel and there was sufficient material to hold that if at all the appellant fired the gun, he fired it only on grave and sudden provocation. We are unable to accept this in view of the fact that the witnesses stated that it was the appellant who picked up quarrel with the deceased and secondly, all of them have stated in equivocation that the appellant went inside the house, brought the gun and fired from a close range. Therefore, the question of grave and sudden provocation did not arise.
9. It was contended by the learned counsel for the appellant that the very nature of the prosecution case in fact necessitated for the prosecution to examine the ballistic expert in order to prove the case against the appellant to the hilt.
We may refer to a decision reported in the case of Gurucharan Singh v. State of Punjab, reported in AIR 1963 SC 340: (1963 (1) Cri LJ 323), where the Court held that it is not necessary to examine a ballistic expert in each and every case, particularly when the direct evidence is of an unimpeachable character and the nature of the injury disclosed by the postmortem report is clearly consistent with that direct evidence. Therefore, we are unable to accept the contention of the learned counsel for the appellant.
10. It was further argued that it was dusk time, there was a quarrel and that there is no evidence that the appellant fired the gun aiming at the deceased and therefore, the case would not be covered under any of the clauses of Section 300, I.P.C., so as to bring it within the definition of ‘murder’, we are unable to accept this contention for the simple reason that the doctor found that the margin of the injury was of black colour which amply proved that the gun was fired from a short distance and this is rather consistent with the evidence of P.W.s 7 and 8, that the gun was fired from a short distance as already discussed above. Further the wound had both marks of entry and exit and no pellets were recovered from the body as stated by the doctor. This also further proves that the gun was fired from a very close distance. All these facts lead to the only conclusion that the gun was fired from a short distance and this would obviously mean that, the appellant did fire the same after aiming at the deceased and with intention of causing that injury which was sufficient in the ordinary course of nature to cause death. Therefore, he committed the offence of murder. We confirm the finding of the learned trial Court.
11. In the result, this Jail Criminal Appeal is dismissed.
S.K. Mohanty, J.
12. I agree.