JABAR SINGHversusSTATE OF M.P.

                       [2010] 9 S.C.R. 1144


A                         JABAR SINGH
                                 v.
                         STATE OF M.P.
               (Criminal Appeal No. 1464 of 2003)

                        AUGUST 12, 2010
B
       [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                      PRASAD, JJ.]

        PENAL CODE, 1860:
c
        s. 326 - Victim died fourteen days after sustaining gun-
  shot injuries - Acquittal by trial court - Conviction by High
  Court uls 302 - HELD: No fault could be found with the finding
  of guilt against' accused recorded by High Court - There is
  on record the eye witness account of several persons
0
  including the wife of the deceased, and the four dying
  declarations recorded at the instanc~ of the deceased before
  several independent persons including an Executive
  Magistrate - Report of doctor that gun-shot injuries were not
  the immediate cause of death of the victim and he died due
E to peritonitis which could not be attributed to the gun-shot
  injury - However, there is the categorical medical evidence
  that the victim died due to lack of care by his attendants as
  he had not been properly treated in the hospital - In this view
  of the matter, a case uls 302 cannot be spelt out - Accused
F convicted u/s 326 with a sentence of 5 years RI and a fine of
  Rs. 5, 000 - Dying declaration.

        CRIMINAL APPELLATE JURISDICTION :Criminal Appeal
    No. 1464 of 2003.
G
        From the Judgment & Order dated 01.8.2003 of the High
    Court of Madhya Pradesh bench at Gwalior in Criminal Appeal
    No. 212 of 1990.


H                              1144
            JABAR SINGH v. STATE OF M.P.                    1145


    Lakhan Singh Chouhan, Dr. Kailash Chand for the                  A
Appellant.

     Vibha Datta Makhija for the Respondent.

     The following Order of the Court was delivered
                                                                     B
                              ORDER

    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            C
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 lnder Singh and
 Ramjit Singh, sons of Badan Singh had sold their land to the        D
 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          E
 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 . '9 P.M. the accused, all
 armed with fire arms, entered the house of Sarnam Singh
 whereafter Jabar Singh, the appellant herein, fired a shot at him   F
 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       G
·cart to police station Mehgaon by Sultan (PW.2), Urned Singh
 (PW.5), Munnalal (PW.1), shiv Naraya·n (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
                                                                     H
    1146    SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A 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
B 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
C 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.
D
       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
E 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
F 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
G 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
H appellant, has however argued that in the light of the medical
            JABAR SINGH v. STATE OF M.P.                    1147


evidence it was apparent that a case of murder was not spelt A
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 the immediate cause of his death and B
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     c
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 D
 had no where observed that the gun shot injuries suffered by
 the deceased would have cau~e 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 E
 Section 302 of the IPC to one under Section 326 of the IPC
 and impose a sentence of R.I. 0f five years and a fine of
 Rs.5,000/- and in default of payment of fine, to six months R.J.

       The appeal is allowed to the above extent.                    F
     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.

R.P.                                            Appeal allowed.