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PETITIONER: SEWA SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 27/04/1962

BENCH:

ACT: Murder-Nature  of  gunshot wound-Proximity of  shot  Medical evidence-Consideration-Witnesses-Evidence-value          of- Assessment-   Doctor’s   evidence   Cross-examination--   No challenge Indian Penal Code, 1860 (46 of 1860), s. 302.

HEADNOTE: The  appellant  was  tried  and  convicted  for  murder  and sentenced  to  death.  Two eye witnesses testified  that  he shot and killed the deceased from a shop while the later was passing  on  a motor cycle.  The doctor  who  conducted  the postmortem gave evidence that the shot might have been fired from  a distance of three or four feet.  This  evidence  was not challenged in cross-examination.  On appeal to the  High Court  the  conviction  and sentence  were  confirmed.   The appeal  came up before the Supreme Court by way  or  special Ieave. The main contention on behalf of the appellant was that  the characteristic of the wound which would have shown that  the deceased was shot from a distance of few inches and not from the  distance  stated by the witnesses were not  taken  into consideration  by the High Court.  It was contended that  if the High Court had considered these factors the  credibility of the witnesses would have become doubtful. Held, that the nature and features of the fatal wound should ordinarily be taken into consideration in assessing the 546 value   of   the  evidence  of  the   eye   witnesses.    On consideration of all the features of the wound as  described by  the doctor the conclusion is reached that  the  doctor’s opinion, which was not challenged in cross-examination, that the shot was fired from a distance of three to four feet  is correct.

JUDGMENT:  CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 60  of 1962. Appeal  by special Leave from the judgment and  order  dated October  25,  1961,  of the Punjab High  Court  in  Criminal Appeal No. 890 of 1961 of Murder Reference No. 74 of 1961. Jai  Gopal  Sethi,  C.  L.  Sareen  and  R.  L.  Kohli,  for appellant. Gopal Singh, D. Gupta, P. D. Menon, for respondent. 1962.  April 27.  The Judgment of the Court was delivered by DAS  GUPTA, J.- The Appellant was convicted by the  Sessions Judge,  Patiala,  of an offence under s.302  of  the  Indian Penal  Code for the murder of Gurdev Singh and sentenced  to

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death.   The  Punjab  High Court dismissed  his  appeal  and confined  the sentence of death.  The present appeal  is  on the strength of special granted by this Court. The prosecution case is that at about 2.30 p.m. on  November 18,  1960  when Gurdev Singh was passing  the  tea-stall  of Cbaran Singh, not far from the courts at Barnala on a  motor cycle,  the  appellant Sewa Singh, who was at that  time  in that shop with a double barrel gun stood up and fired a shot at him.  Gurdev Singh was hit on the right side of his chest and  died  instantaneously.   The appellant  and  one  Gogar Singh, who was with him, ran away. The  accused pleaded not guilty.  It was not  disputed  that Gurdev Singh had died of a gun shot                             547 injury  at  the  time and place as alleged.   It  was  satr- entiously contended, however, that he was not the culprit. According  to the prosecution this occurrence was  witnessed by Charan Singh, the owner of the shop and Mukhtiar Singh, a Student,  and  Bakhtawar  Singh, the two  persons  who  were having tea in the shop. At the trial Charan Singh denied any knowledge as 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  taken  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  State  of Punjab  (Criminal Appeal No. 81 of 1957: Judgment  delivered on 10.5-1957). According  to  the  learned Counsel these  features  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 body 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 548 drawn  to  the features of the injury on which  we  are  now asked  to hold that the shot which killed Gurudev Singh  was fired  from a very close range, not exceeding a few  inches. Even  so, we have thought it proper to hear the  Counsel  on this  question,  ,.is  in  our  view  these  features  ought ordinarily  to be taken into consideration in assessing  the value  of the evidence of the eye-witnesses.   The  doctor’s evidence  shows: (1) that the wound caused was  a  roundish, wound  1-1/2"x  1-1/4" communicating with  the  right  chest cavity;  (2) that the wound was plugged with a cork  wadding and card board disc of 12 bore cartridge; (3) that the right fourth  and  fifth ribs were blown off under the  wound  and also  the right lung was punctured over an area  2-1/2"x  2" about  in its middle lobe about its interior margin  in  the middle which was blown off, (4) that the woollen coat, which was  on  the body of the deceased, was bloodstained  with  a corresponding  rent  blackened charred; the shirt  was  also blood  stained  with a corresponding  rent  blackened.   The

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doctor  gave  the opinion that the distance from  which  the shot was fired might be three to four feet.  There was  some cross-examination of the doctor in the Committing Court  but the  correctness  of this opinion was not  challenged.   The doctor  did not appear to give evidence before the  Sessions Court.   His deposition as recorded by the Committing  Court was  treated  as evidence 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 away.  Speaking of  ordinary  shot-guns,  Sir Sidney Smith in his Forensic Medicine, 9th Edition; page 182 says : "At about a yard the charge of shot will enter as one mass,. making a whole with irregular 549 edges  about an inch in diameter." Major Sir Gerald  Burrard in  his Identification of firearms and Forenisic  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  obokes,  the hole  at  this  distance  being slightly  over  an  inch  in diameter.   At  3 feet the hole is nearly  1-1/2  inches  in diameter,  and  the difference between the two  extremes  of boring, true cylinder and full 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 wound 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  deduce d               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 of 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 1-1/4"  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  whet  the gun is fired from a distance of only  a  few inched;  the  wound would be surrounded by a zone  of  black ening and burning. in the Present case no mark 550 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 was 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  Practice  of  Medical Jurisprudence, 10th Edition at p.   441 thus:-               "The amount or degree to which the clothes and               body  of  a person may be burnt  by  the  near               discharge  of  firearms has given  rise  to  a

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             medico-legal inquiry.  The facts in any  given               case  can  be determined only  by  experiments               with  the  actual weapon used, and  loaded  as               nearly  as possible in the same manner  as  it               was when used for the purpose which are  being               investigated.  It is impossible 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 fired  at a distance of a yard or a yard and a half  with  a shot-gun.   Even  though this opinion is not  reiterated  in Taylor’s  11th  Edition,  it seems clear, in  view  of  this opinion  that  the  presence of the  burning  marks  in  the clothes cannot from a reasonable basis for holding that  the gun  was  fired in this case from the close range of  a  few inches only. It is necessary next to consider the fact that the cork  was found lodged in the body.  Glaister  551 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 distance at which the wad may enter the body.   The  nearest statement 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   near discharges."  Reading  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 the 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 itself 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  doctor 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. 552 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  his examination-in-chief,  which  was not challenged  in  cross- examination before the Committing Magistrate, that the  shot

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may have been fired about three to four feet away should  be accepted as correct.  We find no reason therefore  interfere with  the assessment of evidence as made by the  High  Court and  also with the order, of conviction and sentence  passed by it. The appeal is accordingly dismissed. Appeal dismissed.