Punjab-Haryana High Court
Gurdeep Singh And Others vs State Of Punjab on 16 January, 2014
CRA-S-1731-SB-2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA, AT CHANDIGARH
CRA-S-1731-SB-2002
Decided on : 16.01.2014
Gurdeep Singh and others .. Appellants
Versus
State of Punjab ... Respondents
CORAM : HON'BLE MR.JUSTICE MAHAVIR S. CHAUHAN
Present : Mr.H.S.Gill, Sr.Advocate with Mr.R.K.Dhiman, Advocate
for the appellants.
Mr.G.S.Sidhu, Asstt. Advocate General, Punjab
for respondent-State.
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• Whether Reporters of local papers may be allowed to see the
judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
Mahavir S. Chauhan, J. (Oral)
Having been convicted and sentenced to undergo various terms of imprisonment and to pay various amounts of fine under Sections 307 and 307/34 of the Indian Penal Code (for short, IPC) and Sections 27, 25 and 30 of the Arms Act, 1959 (for short, Arms Act), by the Court of learned Additional Sessions Judge, Bathinda vide judgment of conviction dated October 03, 2002 Kumar Sudhir S 2014.01.27 16:05 I attest to the accuracy and integrity of this document chandigarh CRA-S-1731-SB-2002 2 and order of sentence dated October 04, 2002, in Sessions Case No. 43 of 1995/RT No. 09 of 1996/RT No. 38 of 2000, the convicts have brought the instant appeal to seek, upsetting of the aforesaid judgment of conviction and order of sentence and their acquittal of the charges of which they have been charged and convicted/settlement.
Fact situation involved in the matter indicates that PW Sukhdev Singh, a practising Advocate, had leased a portion of his land to Mela Singh and Tota Singh of village Jandawala and was himself cultivating the remaining portion of it. March 23, 1995 being his turn for irrigating his fields, he, in the company of Mela Singh and Tota singh reached the fields on that day and started preparing the culvert. At or around 10.30/10.45 a.m. Gurdeep Singh, Balwinder Singh, and Jit Singh armed with .12 DBBL guns and Pala Singh and Pala Singh (aka Jaspal Singh) armed with "Gandasa", descended on the scene. Pala Singh exhorted saying that the complainant party be not allowed to escape. Upon this Gurdeep Singh from his licenced gun at Sukhdev Singh, Mela Singh and Tota Singh. Sukhdev Singh received injuries on his left arm- pit and right arm. Shot fired by Balwinder Singh hit back of Mela Singh neck, left arm, shoulder and left wrist, while fleeing. Jit singh then fired upon all the three of them with an intention to kill them. Owing to the distance and kind of weapon the shot crossed from over the head. All the three of them ran away and were admitted in Guru Gobind Singh Medical College and Hospital, Faridkot.
Doctor attending on the injured sent an intimation (Ruqa) to Police Station Kotwali, Faridkot from where it was sent to Police Station Sadiq Kumar Sudhir S 2014.01.27 16:05 I attest to the accuracy and integrity of this document chandigarh CRA-S-1731-SB-2002 3 whereupon ASI Joginder Singh (Investigating Officer) accompanied by his fellow police officials went to the hospital and after obtaining opinion of the doctor about fitness of the injured to make a statement, recorded statement of injured PW Sukhdev Singh and based thereupon a formal First Information Report (FIR) came to be recorded.
Matter was investigated into, injured were medico legally examined, spot was inspected, statements of witnesses were recorded, necessary recoveries were effected and on completion of investigation, a report, in terms of sub-section (2) of Section 173 of the Criminal Procedure Code, 1973 (Cr.P.C., for short) was presented before the jurisdictional magistrate, who, after compliance of Section 207, Cr.P.C., perused the report and its annexures and having found an offence triable by the Court of Session to be involved, committed the case to the Court of Session in terms of Section 209, Cr.P.C. Learned Sessions Judge, Bathinda entrusted the case to the learned Additional Sessions Judge (trial court, for short), who, on hearing the prosecution and the defence and perusal of the report and its annexures, found that the accused could not be discharged under Section 227, Cr.P.C. rather, there were grounds to presume that accused had committed an offence punishable under Section 307 and 307/34, IPC, and Sections 27, 25 and 30 of the Arms Act and, accordingly charged the accused.
On a plea of not guilty put up on behalf of the accused, trial court called upon the prosecution to bring evidence in support of the charges.
Prosecution examined twelve witnesses to prove the charges against the accused.
Kumar Sudhir S 2014.01.27 16:05 I attest to the accuracy and integrity of this document chandigarh CRA-S-1731-SB-2002 4
After taking the evidence for the prosecution, trial court questioned the accused generally on the case so as to enable them to personally explain the circumstances appearing in the evidence against them. While all the accused denied these circumstances as false and reiterated their pleas of false implication and innocence, accused Jaspal Singh came out with a plea that he was falsely implicated being son of Surjit Singh, accused Gurdeep Singh pleaded that he was falsely implicated to counterblast the civil litigation which he successfully fought against PW Sukhdev Singh.
On being called upon to enter their defence, the accused examined three witnesses in defence.
After case on both the sides was closed, trial court appraised the evidence in the light of the submissions made at the bar, held the prosecution to have failed to fix guilt of accused Surjit Singh punishable under Section 307, IPC, as also of all the accused under Section 148, IPC, but to have succeeded in proving, beyond reasonable doubt, its case against the accused Surjit Singh punishable under Section 30 of the Arms Act, and the other accused as here- in-before stated and, accordingly, convicted them and awarded them various terms of imprisonment besides awarding sentence of fine and additional imprisonment in case of default in payment of fine as per details given below:
1 Gurdeep Singh U/S 307 IPC RI for seven years and to pay a fine Balwinder Singh, Jit Singh of Rs.2000/- each and in default of payment of fine to undergo further & Jaspal Singh U/S 307/34 IPC RI for one month each 2 Balwinder Singh U/s 307 IPC RI for seven years and to pay a fine of Rs.2000/- each and in default of payment of fine to undergo further RI for one month each.
Kumar Sudhir S 2014.01.27 16:05 I attest to the accuracy and integrity of this document chandigarh CRA-S-1731-SB-2002 5 3 Jit Singh U/s 307 IPC RI for seven years and to pay a fine Gurdeep Singh of Rs.2000/- each and in default of payment of fine to undergo further Balwinder Singh & RI for one month each Jaspal Singh 4 Gurdeep Singh U/S 27 Arms Act RI for three years and to pay a fine of Rs.1000/- and in default of payment of fine to undergo further RI for 15 days. 5 Jit Singh U/s 25 Arms Act RI for three years and to pay a fine of Rs.1000/- and in default of payment of fine to undergo RI for 15 days. 6 Balwinder Singh U/s 25 of Arms RI for three years and to pay a fine Act of Rs.1000/- and in default of payment of fine to undergo RI for 15 days. 7 Surjit Singh U/s 30- Arms Act RI for six months and to pay a fine of Rs.1000/- and in default of payment of fine to undergo further RI for 15 days.
As aforesaid, the judgment of conviction dated October 03, 2002 and order of sentence dated October 04, 2002 are under challenge in this appeal which the State is contesting.
I have heard Mr. H.S.Gill, learned Senior Counsel being assisted by Mr. R.K.Dhiman, Advocate and Mr.G.S.Sidhu, learned Assistant Advocate General, Punjab appearing on behalf of the respondent-State.
The only argument raised on behalf of the appellants is that the very fact that the shots are shown to have been fired by the appellants from a distance of 70 karams from the victims, goes to show that the appellants did not have any intention to kill the victims. Otherwise were it that, that they intended to kill them, there was no hitch in the way of the appellants to come closer to the victims and the shots fired at them from such a distance that these would have proved fatal. Learned Senior Counsel also refers to the evidence of Kumar Sudhir S 2014.01.27 16:05 I attest to the accuracy and integrity of this document chandigarh CRA-S-1731-SB-2002 6 PW1, Dr. S.K. Mehra and PW12, Dr. Navkiran to show that injuries on the persons of Sukhdev Singh and Mela Singh were minor and superficial, were simple in nature, these being only skin deep cuts and that possibility of radio opaque foreign bodies, which could not be marked, having been artificially inserted, could not be ruled out. Learned senior counsel also relies upon two judgments of this Court in case titled as "Bhag Singh Vs. The State of Punjab, 1975, CLR 289, Ram Kishan Vs. The State of Haryana, 1985(2) CLR, 635 and a judgment of Rajasthan High Court in case titled as Jalim Singh Vs. State of Rajasthan, 2005(3) RCR (Criminal) 948 to contend that in similar circumstances as obtaining in the case in hand, it was held that no offence under Section 307, IPC, was made out and instead offence under Section 324, IPC, only was held to be made out against the accused in those cases.
Answering to the contention raised on behalf of the appellants, learned State counsel submits that the fact that the appellants descended on the scene duly armed with deadly weapons such as .12 double barrel guns and "Gandasa" is in itself is sufficient to conclude that they had gone to the spot not only with an intention but with a determination to kill PWs Sukhdev Singh, Mela Singh and Tota Singh.
From the contentions raised at the bar, it comes out that occurrence as such is not in dispute. It has also not been disputed that as per Medico Legal Report, Exhibit PA, PW Mela Singh received four and according to Medico Legal Report, Exhibit PC, PW Sukhdev Singh received two injuries in the occurrence. It also has remained unchallenged that as per opinion, Exhibit PB, injuries on the person of Mela Singh and as per opinion, Exhibit Kumar Sudhir S 2014.01.27 16:05 I attest to the accuracy and integrity of this document chandigarh CRA-S-1731-SB-2002 7 PD, injuries on the person of PW Sukhdev Singh were declared simple in nature and that weapon used for causing these injuries was fire-arm. The only question that survives is whether the intention of the appellants was to kill the victims?
Role attributed to appellant Jit Singh is that he fired shots at the running victims but the shots did not hit them.
It has come on record that the place from where the shots are stated to have been fired was seventy "Karams" away from the spot where the victims were present and effective range of a .12 double barrel gun is only forty to fifty yards only. The appellants are licenced holders of the .12 double barrel guns and, as such, are deemed to be in the knowledge of the effective range of the same. It has also come on record that except for the assailants and the victims, nobody else was around. The armed assailants were pitched against empty handed victims who did not even resist the attack. Such being the circumstances obtaining on the spot, there was no impediment in the way of the assailants to come closer to the victims and then fire the shots but they did not do so and are said to have fired from a distance which was far beyond the range of the fire arms used in the occurrence. Assertion of the doctors that possibility of radio opaque foreign bodies, which could not be marked, having been artificially inserted, could not be ruled out, apart, injuries on the person of injured PWS were skin deep and simple in nature. It, therefore, comes out that even if the occurrence is taken to have happened in the manner it is alleged to have happened, the assailants cannot be saddled with the intention to kill the victims rather, their only effort was to scare them away. Judgments cited by Kumar Sudhir S 2014.01.27 16:05 I attest to the accuracy and integrity of this document chandigarh CRA-S-1731-SB-2002 8 the learned senior counsel appearing for the appellants support this view and nothing to the contrary has been shown during the course of hearing.
Learned Senior Counsel appearing on behalf of the appellants attempts to derive benefit on account of the distance from which the shots were fired by the appellants while the learned State counsel relies upon the conduct of the appellants who had descended on the scene duly armed with the deadly weapons. However, merely because the appellants were armed with deadly weapons cannot lead to the conclusion that they, in fact, wanted to kill the victims. Were it that, that the appellants went to the spot with such an intention in that eventuality there was no hindrance in their way to reach so near to the victims as to ensure that the shot fired by them must hit the target in such a manner that the desired result comes out or so the victims be done to death. Instead, the appellants fired shots from a distance of 70 karams. If fires are shot from such a long distance, there are, in all probability, chances of going fires waste. This is confirmed by the injuries received by the victims. A perusal of the medico legal report and evidence of the medical officer would show that all the injuries received by the victims are simple in nature and are on non-vital parts of their bodies. Rather these are only skin deep cut/wound. Dr.Nav Kiran has gone to the extent of the same that as assertion of the pallets cannot be ruled out. This circumstance in itself is sufficient to rule out that the appellants while firing shots from .12 bore double barrel gun had an intention to kill the victims.
For the purpose of Section 307, IPC, what is material is the intention or the knowledge and not the consequence of the actual act done for Kumar Sudhir S 2014.01.27 16:05 I attest to the accuracy and integrity of this document chandigarh CRA-S-1731-SB-2002 9 the purpose of carrying out the intention. Section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, IPC, there can be no offence 'of attempt to murder'. Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place. On the evidence on record, where the prosecution has been able to prove only that the victims have sustained injuries by firing and it was an open area with none other than the injured and the assailants nearby there is a complete lack of evidence of intention to cause such injuries for which, in the event of death of any of the victims, the appellants could have been convicted under Section 302, IPC.
In view of what has been said and discussed above, finding of the trial Court that prosecution has been able to establish that the appellants had fired upon the victims with an intention to kill them deserves to be and is hereby set aside and the conviction of the appellants is converted from Section 307 IPC to Section 324 IPC. Conviction of the appellants under other heads is, however, maintained.
It is submitted by the learned senior counsel appearing on behalf of the appellants and has not been denied by the learned State counsel that out Kumar Sudhir S 2014.01.27 16:05 I attest to the accuracy and integrity of this document chandigarh CRA-S-1731-SB-2002 10 of the awarded sentence of Seven years, the appellants have already served terms of sentence of three years. As afore-said, offence of Section 307, IPC, is not, at all, made out. Therefore, while maintaining conviction of the appellants for other offences, the sentence awarded to them is reduced to the period already spent by them in custody.
With the aforesaid modification in the judgment of conviction dated October 03, 2002 and order of sentence dated October 04, 2002, this appeal is partly allowed.
[ Mahavir S. Chauhan ] Judge 16.01.2014 sd Kumar Sudhir S 2014.01.27 16:05 I attest to the accuracy and integrity of this document chandigarh