Judgment

ALAGIRISWAMI, J. - The appellant, his father Teja Singh and his brothers Jaswant Singh and Balwant Singh were tried before the Addl. Sessions Judge, Amristar, for the murder of Dial Singh and causing grievous injuries and simple hurts to Smt. Swaran Kaur on 27-4-l968. The learned Sessions Judge acquitted Balwant Singh and Jaswant Singh and convicted the appellant and his father. On appeal before the High Court of Punjab & Haryana the father was acquitted while the sentence passed on the appellant was confirmed.

2. The occurrence, as already mentioned, took place on 27-4-1968. On that day the appellant s mother was going in the lane in front of the house of Karam Singh. There was an exchange of abuses between Karam Singh s wife and mother and the appellant s mother because Karam Singh s dog had barked at her. Shortly thereafter the appellant and his brothers came to Karam Singh s house and again started abusing. The appellant was then carrying a gun. When Karam Singh returned home and heard about this incident he abused the accused. This brought the appellant and his brothers to the lane and they in turn abused Karam Singh. The deceased Dial Singh, a cousin of the appellant came there at that time carrying a dang and challenged the appellant and his companions. Teja Sing came there at that time and exhorted the appellant to fire. The appellant fired the gun as a result of which Dial Singh died and Swaran Kaur was also hit.

3. According to the appellant when he went to his house to fetch a dang he heard his father, Teja Singh, raise an alarm Mar Sittya and he heard the report of a fire- shot. He picked up the gun and went out and saw Swaran Kaur lying injured and Dial Shah armed with a pistol. When Dial Singh started loading his pistol he fired at him in self defence. The short and simple point therefore is whether the appellant fired at and killed Dial Singh in self defence.

4. According to the prosecution case Swaran Kaur, the aunt of the appellant, was standing behind Dial Singh when the appellant shot at him and the shot which entered the body of Dial Singh came out and hit Swaran Kaur. The prosecution evidence itself is that Swaran Kaur was trying to dissuade the appellant and his people from quarrelling. Therefore she must have been in front of him and could not have been behind Dial Singh Moreover, even according to the prosecution evidence she was at least 25 or 30 feet behind Dial Singh when the shot was fired by the appellant A third circumstance is that whereas the injuries on the deceased were in the chest the injuries on Swaran Kaur were a little above the knee and below the knee. These three circumstances improbabilise the prosecution story of the shot fired at Dial Singh going through his body and then going further and hitting Swaran Kaur. . The shot resulted in Swaran Kaur s femur being fractured. The rib of the deceased was also fractured. In this state of the evidence the learned Judges of the High Court thought it necessary to examine a ballistic expert. They have relied heavily on his evidence in order to sustain the conviction of the appellant. We have and are of opinion that it does not help to establish the prosecution case, at least not beyond reasonable doubt.

5. According to the expert the parcel, Ex. P-1, contained two shots and the parcel, Ex.P-2 contained one shot. The shots in parcel, P-1, weighed 4.41 gms. and 4.24 gms. The correct weight of L G. and S. G. shots is 4.54 gms. and 3.54 gms, respectively. Therefore the two shots in parcel, Ex. P-1, were discharged from a cartridge of L. G. size. This part of the evidence may be accepted as correct even though there is some difference between 4.54 gms. 4.41 gms. and 4.24 gms. The shot contained in parcel, Ex. P-2, was found to weigh 2.76 gms. It could therefore be either an L. G. or S. G. shot. The expert, however, says that the general shape ,of the undamaged portion indicated that the shot was possibly an L. G. shot. He was not categorical