Punjab-Haryana High Court
Dara Singh And Another vs State Of Punjab on 22 January, 2014
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Kuldip Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. A. No. D-21-DB of 2009
DATE OF DECISION : 22.01.2014
Dara Singh and another
.... APPELLANTS
Versus
State of Punjab
..... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE KULDIP SINGH
Present: Mr. Baldev Singh, Senior Advocate, with
Mr. Deepinder Singh, Advocate,
for the appellants.
Mr. P.P.S. Thethi, Addl. A.G., Punjab.
***
SATISH KUMAR MITTAL , J.
1. Dara Singh and Dhola Singh (hereinafter referred to as A1 and A2), both real brothers, have filed this appeal against the judgment and order 15.11.2008, passed by the court of Additional Sessions Judge, Ferozepur, whereby A1 has been convicted and sentenced to undergo imprisonment for life and to pay a fine of ` 10,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months under Section 302 IPC; to undergo rigorous imprisonment for seven years and to pay a fine of ` 5,000/-, in default of payment of fine to further undergo rigorous imprisonment for three months under Section 307 IPC; and to Dass Narotam 2014.03.04 12:46 I attest to the accuracy and integrity of this document Crl. A. No. D-21-DB of 2009 -2- undergo rigorous imprisonment for one year and to pay a fine of ` 1,000/-, in default of payment of fine to further undergo rigorous imprisonment for one month under Section 325/34 IPC; and A2 has been convicted and sentenced to undergo imprisonment for life and to pay a fine of ` 10,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months under Section 302/34 IPC; to undergo rigorous imprisonment for seven years and to pay a fine of ` 5,000/-, in default of payment of fine to further undergo rigorous imprisonment for three months under Section 307/34 IPC; and to undergo rigorous imprisonment for one year and to pay a fine of ` 1,000/-, in default of payment of fine to further undergo rigorous imprisonment for one month under Section 325 IPC. All the substantive sentences have been ordered to run concurrently. However, vide the impugned judgment, Mangat Singh (co-accused of the appellants) has been acquitted of the charges framed against him.
2. The prosecution version is based upon the statement (Ex.P12) made by Ajmer Singh (PW.7) to SI Palwinder Singh, SHO Police Station Sadar Fazilka (PW.13) in Civil Hospital, Fazilka, on 20.5.2007 at 2.15 AM, wherein he stated that he and his elder brothers Gurmail Singh (deceased) and Jasmail Singh (injured-PW.6) had constructed a syphon over seepage drain for irrigating their land. Dara Singh (A1), whose land adjoins their land, had not paid his share of construction of this syphon. On 19.5.2007 at about 10.30 PM, A1 armed with a .12 bore double barrel gun along with his Dass Narotam 2014.03.04 12:46 I attest to the accuracy and integrity of this document Crl. A. No. D-21-DB of 2009 -3- brother Dhola Singh (A2), who was armed with kahi (spade), and Mangat Singh son of A2 holding a dang came at the syphon point. They were about to irrigate their land through the said syphon. Thereupon, complainant Ajmer Singh along with his brothers Gurmail Singh and Jasmail Singh requested the appellants and their co-accused Mangat Singh to first pay their share of construction of syphon and then irrigate the land, but A1 refused to pay their share and asked as to who can stop them from irrigating their land. Co-accused Mangat Singh raised lalkara to catch hold of the complainant party and teach them a lesson for preventing the accused party from irrigating the land. Then A2 tried to turn the flow of water. Then Gurmail Singh asked the accused party not to use force. Thereupon, A1 fired a gun shot straight at Gurmail Singh, which hit on his right thigh near the testicles and he fell on the ground. The complainant and his brother Jasmail Singh went ahead to save their brother Gurmail Singh, upon which A1 fired another gun shot with intention to kill, which hit Jasmail Singh on his left shoulder and he fell on the ground. While he was lying, A2 gave him a kahi blow from its reverse side on his left arm. The complainant raised alarm, upon which A1 fired another shot with intention to kill him, but he ducked and the shot went over his head. Gurmail Singh died at the spot. On hearing the noise raised by him, the assailants ran away with their respective weapons. In the meantime, Darshan Singh, Sarpanch of village Kotha Thagni came there, and after arranging the conveyance, took Gurmail Singh Dass Narotam 2014.03.04 12:46 I attest to the accuracy and integrity of this document Crl. A. No. D-21-DB of 2009 -4- and Jasmail Singh to Civil Hospital, Fazilka, where Gurmail Singh was declared brought dead and Jasmail Singh was medico legally examined. The cause of grudge, as stated by complainant, is that a syphon was constructed over seepage drain to irrigate the land, but A1 had not paid his share of construction. Due to this reason, the appellants and their co-accused Mangat Singh fired shots and caused injuries to Gurmail Singh and Jasmail Singh. It was further stated that A2 had earlier committed a murder and he has come after undergoing life imprisonment.
3. On 19.5.2007 at 11.35 PM, injured Jasmail Singh (PW.6) was medico legally examined by Dr. Sandeep Kumar (PW.2) Medical Officer, Civil Hospital, Fazilka. The following injuries were found on the body of the injured :
1. Lacerated punctured wound 2 x 1.5 cm with inverted margins, present on the top of left shoulder. Fresh bleeding was present.
2. Lacerated punctured wound 3.5 x 3 cm with everted margins present on left axilla. Fresh bleeding was present. Left radius pulse was absent.
3. Swelling 8 x 6 cm on the outer aspect of left arm in its upper part, unnatural mobility was present. Creptius was present.
Underlying bone fractured.
After conducting the medico legal examination, Dr. Sandeep Kumar sent ruqa (Ex.P10) to the police along with MLR (Ex.P7) of injured Jasmail Dass Narotam 2014.03.04 12:46 I attest to the accuracy and integrity of this document Crl. A. No. D-21-DB of 2009 -5- Singh, informing the police regarding the admission of injured Jasmail Singh and death of Gurmail Singh due to fire arm injuries.
4. After receiving the aforesaid ruqa, SI Palwinder Singh (PW.13) along with other police officials reached Civil Hospital, Fazilka, in the night of 19.5.2007 itself and moved an application (Ex.P33) regarding the fitness of injured Jasmail Singh, but vide endorsement (Ex.P9), the doctor declared injured Jasmail Singh unfit to make statement. Thereafter, complainant Ajmer Singh (PW.7), brother of deceased Gurmail Singh and injured Jasmail Singh (PW.6) met there and his statement (Ex.P12) was recorded, and by making endorsement (Ex.P29) on the said statement, on 20.5.2007 at 2.15 AM., the same was sent to the Police Station, on the basis of which FIR (Ex.P30) was registered at 2.30 AM. Thereafter, the inquest report (Ex.P4) was prepared. The dead body along with the police papers and the police request (Ex.P3) was handed over to HC Balbir Chand (PW.13). He took the same to Dr. S.K. Parmani (PW.1), who conducted post mortem examination on the dead body of Gurmail Singh at 10.20 AM. As per the Post Mortem Report (Ex.P1), a lacerated wound with inverted margins measuring 8 cm x 4 cm was present on the upper 1/3rd of right thigh in its inner half. Wound was bone deep with collar of abrasion contusion around it. Clotted blood was present. On dissection, fermal vessels were found to be torn of. Wound was embeded with pallets. Few pallets being removed and being sent for forensic expert. Wad was removed from the wound and Dass Narotam 2014.03.04 12:46 I attest to the accuracy and integrity of this document Crl. A. No. D-21-DB of 2009 -6- sent along with pallets. The cause of death was opined to be hemorrhage and shock as a result of gun shot injury (injury to major blood vessel) which was sufficient to cause death in an ordinary course of nature. Injury was ante-mortem in nature. Death occurred immediately after the injury. Time between death and post mortem examination was between 10 to 12 hours. The pictorial diagram (Ex.P2) showing the seat of injury was prepared. The injured part of the body of the deceased was got X-rayed. A sealed plastic Jar wrapped in a white piece of cloth containing pallets and wad, X-ray film (Ex.P5) and the X-ray report (Ex.P6) along with the dead body, copy of the Post Mortem Report (Ex.P1) and the police papers were handed over to Constable Balbir Chand.
5. On 20.5.2007, SI Palwinder Singh along with other police officials and complainant Ajmer Singh went to the place of occurrence, from where the blood stained earth and simple earth were taken and after preparing two separate parcels of the same, which were duly sealed, the same were taken into possession vide memo Ex.P13, which was attested by complainant Ajmer Singh (PW.7) and ASI Bhajan Singh (PW.12). The rough site plan (Ex.P11) of the place of occurrence was prepared. On return to the Police Station, clothes of the deceased and one parcel bearing the seal impression of the doctor were produced before SI Palwinder Singh. After preparing a parcel of the clothes of the deceased, it was duly sealed with the seal of ASI Bhajan Singh. This parcel and the parcel bearing the seal of the Dass Narotam 2014.03.04 12:46 I attest to the accuracy and integrity of this document Crl. A. No. D-21-DB of 2009 -7- doctor were taken into possession vide memo Ex.P16, which was attested by HC Balbir Chand and ASI Bhajan Singh. Both the parcels were deposited in intact condition with MHC Balwinder Singh.
6. On 4.6.2007, one Jangir Singh produced accused Mangat Singh in the Police Station before SI Palwinder Singh. He was arrested and he produced dang, which was taken into possession vide memo Ex.P19 in the presence of ASI Bhajan Singh.
7. On 10.6.2007, the police party headed by SI Palwinder Singh, after associating Darshan Singh Sarpanch, conducted raid on the house of A2, from where he (A2) was arrested. During interrogation, A2 produced a spade. Sketch (Ex.P21) of the blade of the said spade was prepared and the spade was taken into possession vide memo (Ex.P22). The personal search memo (Ex.P23) and the grounds of arrest memo (Ex.P24). All these memos were signed by A2 as well as by Darshan Singh Sarpanch and ASI Bhajan Singh. On return to the police station, the aforesaid spade was deposited with the MHC in intact condition.
8. On 14.6.2007, during interrogation, A2 made disclosure statement (Ex.P25) before SI Palwinder Singh that he had kept concealed one .12 bore double barrel gun of A1 in an iron Peti in the house of A1. Thereafter, while in police custody, A2 got recovered the aforesaid gun, which was put into a parcel, duly sealed by SI Palwinder Singh with his seal, and was then taken into possession vide memo (Ex.P26). The Dass Narotam 2014.03.04 12:46 I attest to the accuracy and integrity of this document Crl. A. No. D-21-DB of 2009 -8- disclosure statement and the aforesaid memo were signed by ASI Bhajan Singh, HC Parveen Kumar and independent witness Sukhjinder Singh. Rough (Ex.P32) site plan of the place of recovery was also prepared. On return to the police station, parcel of the gun was deposited with the MHC in intact condition.
9. On 17.6.2007, A1 was arrested and from his personal search, nothing was recovered. His personal search memo (Ex.P27) and the grounds of arrest memo (Ex.P28) were prepared, which were attested by ASI Bhajan Singh and HC Parveen Kumar.
10. On 13.7.2007, SI Palwinder Singh got tested the aforesaid gun from ASI Kewal Krishan (PW.8), Armour, Police Lines, Ferozepur, who mechanically checked the same and found it in working condition, and gave the test report (Ex.P14).
11. On 30.7.2007, statement of Jagan Nath (PW.9), Arms Clerk of the office of ADC, Ferozepur was recorded by SI Palwinder Singh, who stated that as per the official record, the aforesaid gun was in the name of Dara Singh (A1).
12. After completion of investigation, the police filed challan against all the three accused, i.e. both the appellants and Mangat Singh. They charge sheeted for the offences under Sections 302/307/325/34 IPC and Section 27 of the Arms Act, 1959, to which they did not plead guilty and claimed trial.
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13. In support of its case, the prosecution examined thirteen witnesses. The reports of the Forensic Science Laboratory, Punjab, Chandigarh, were tendered into evidence as Ex.P33 and Ex.P34. Vide Ex.P33, it has been reported that the wad and pallets (recovered from the dead body of the deceased) were the components of .12 bore cartridge. According to the other report (Ex.P34), the blood stained earth, put in one parcel, was stained with the human blood, whereas no demonstrable blood was found on the simple earth, put in the second parcel.
14. PW.1 Dr. S.K. Parnami, who conducted the post mortem examination on the dead body of Gurmail Singh, proved the Post Mortem Report (Ex.P1) and the pictorial diagram (Ex.P2) showing the seat of injury. He also stated that he got conducted the X-ray of the injury part of the body of the deceased and proved the X-ray film (Ex.P5) regarding the same.
15. PW.2 Sandeep Kumar, who medico legally examined Jasmail Singh injured, found three injuries on the body of the injured. He proved the MLR (Ex.P7) and the pictorial diagram (Ex.P8) showing the seats of injuries. He also proved the information (Ex.P10) sent by him to the police regarding admission of injured Jasmail Singh and death of Gurmail Singh due to fire arm injuries.
16. PW.3 Om Parkash, Revenue Patwari, is the formal witness, who prepared the scaled site plan (Ex.P11) of the place of occurrence. It was prepared by him on 25.6.2007 on the pointing of complainant Ajmer Singh. Dass Narotam 2014.03.04 12:46 I attest to the accuracy and integrity of this document Crl. A. No. D-21-DB of 2009 -10-
17. PW.4 Constable Sarbjit Singh is another formal witness, who on 23.5.2007 took two duly sealed parcels from MHC Gurmit Singh, one containing blood stained earth and the other containing simple earth. After depositing the same in the office of FSL, Chandigarh on 24.5.2007, he handed over the receipt in this regard to the MHC. He stated that during the period, the aforesaid parcels remained in his possession, the same were kept intact and were not tampered with.
18. PW.5 HC Gurmit Singh, who was posted as MHC at the relevant time, is also a formal witness, who stated that on 20.5.2007, the aforesaid two parcels were deposited with him by SI Palwinder Singh. He has supported the aforesaid statement of PW.4 regarding deposit of those two parcels in the office of FSL, Chandigarh, in intact condition.
19. PW.6 Jasmail Singh is the injured witness. He is the brother of deceased Gurmail Singh and complainant Ajmer Singh. He supported the prosecution version and narrated the entire occurrence, wherein both the appellants along with their co-accused Mangat Singh attacked them and his brother Gurmail Singh was murdered and he himself suffered injuries.
20. PW.7 Ajmer Singh, complainant, reiterated his entire version, which was got recorded by him to the police in the Civil Hospital immediately after the occurrence. He proved his statement (Ex.P12) made to the police and the memo (Ex.P13) vide which two parcels, one containing blood stained earth and the other containing simple earth lifted from the Dass Narotam 2014.03.04 12:46 I attest to the accuracy and integrity of this document Crl. A. No. D-21-DB of 2009 -11- spot, were taken into possession.
21. PW.8 ASI Kewal Krishan, Armour, stated that on 13.7.2007, SI Palwinder Singh produced before him one duly sealed parcel, containing .12 bore double barrel gun. He further stated that he mechanically checked the said gun and found it to be in working condition. In this regard, he proved his test report Ex.P14.
22. PW.9 Jagan Nath, Arms Clerk, Office of District Magistrate, Feorzepur, stated that as per the official record, brought by him, licence of the gun recovered in this case was in the name of Dara Singh (A1).
23. PW.10 HC Parveen Kumar is a formal witness, who on 12.8.2007, took one parcel, duly sealed with the seal of the doctor, from MHC Balwinder Singh. After depositing the same in the office of FSL, Chandigarh on 13.8.2007, he handed over the receipt in this regard to the MHC. He stated that during the period, the aforesaid parcel remained in his possession, the same was kept intact and was not tampered with.
24. PW.11 HC Balbir Chand, who got conducted the post mortem of the deceased, stated that on 20.5.2007, he handed over the Post Mortem Report, belongings of the deceased and one parcel, duly sealed with the seal of the doctor, to SI Palwinder Singh. He further stated that after getting the post mortem conducted, the dead body was handed over to the wards of the deceased against receipt Ex.P17.
25. PW.12 ASI Bhajan Singh proved another FIR (Ex.P18) bearing Dass Narotam 2014.03.04 12:46 I attest to the accuracy and integrity of this document Crl. A. No. D-21-DB of 2009 -12- No. 348 dated 19.12.1992 under Section 302/34 IPC registered at Police Station Sadar Fazilka, against Dhola Singh (A2) and one Mehal Singh son of Charan Singh, wherein they were convicted and sentenced to undergo imprisonment for life on 19.5.1994. He also proved the recovery memos (Ex.P19, P22, Ex.P26) regarding the recovery of dang, spade, gun and the other memos/documents, prepared during investigation.
26. PW.13 SI Palwinder Singh is the Investigating Officer of the case. He stated regarding the entire investigation conducted by him and proved all the documents, prepared by him during investigation of the case.
27. In their statements recorded under Section 313 Cr.P.C., A2 and co-accused Mangat Singh pleaded innocence and their false implication. A1 while pleading innocence and false implication, took the plea of self defence and stated on the day of occurrence, i.e. on 19.5.2007, he had gone to see his brother Dhola Singh (A2) in his fields since he used to come there at that time of night. Fields of A2 are quite near to his house. Being night, he took his licensed gun with him. The moment he reached in the fields of A2, he was surrounded by the complainant side consisting of Gurmail Singh and Jasmail Singh along with few other unidentified persons. Gurmail Singh was armed with a kapa; whereas Jasmail Singh was holding a kulhari and was carrying a gun hanging around his shoulder. Gurmail Singh went ahead to inflict kapa blow on him. He was having previous enmity with him and A2. He further stated that finding no way out to save himself from this Dass Narotam 2014.03.04 12:46 I attest to the accuracy and integrity of this document Crl. A. No. D-21-DB of 2009 -13- attack and with no chance to run away, he fired a shot from his gun towards the legs of assailant. Since he was not expert in shooting, both fires went of simultaneously hitting Gurmail Singh and Jasmail Singh at the same time. He had no intention to kill or cause injury to any one. Had he not fired in self defence, he would have been slaughtered by the complainant side. He denied the story of constructing syphon. According to him, the syphon was constructed by the complainant for their convenience over seepage drain across road, so that they may be able to use it to go to their houses. Moreover, on the day of occurrence, he had not gone to divert water through the alleged syphon. An FIR No. 252 dated 31.7.2003 was registered at Police Station Sadar Fazilka against Jasmail Singh. Jasmail Singh and his brother were suspecting that he and A2 were helping the complainant side of the said FIR and as such, they were nursing grudge against him and A2.
28. In defence, the accused examined HC Baldev Singh as DW1, who proved FIR No. 252 dated 31.7.2003 (Ex.DX) under Sections 452/323/324/148/149 IPC registered at Police Station Sadar Fazilka.
29. After hearing learned counsel for the parties, while disbelieving the plea of self defence taken by A1, and relying upon the prosecution evidence, the trial court convicted and sentenced both the appellants, as indicated in the first para of this judgment. However, while doubting the presence of co-accused Manjit Singh at the time of the occurrence, he has been acquitted of the charges.
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30. Learned counsel for the appellants raised two fold submissions. Firstly, that the complainant party was the aggressor and the accused attacked the complainant party, when they were irrigating their fields and were encircled by the complainant party. A1 fired shot in his self defence, and the trial court has not properly considered the plea of self defence taken by A1. Secondly, learned counsel argued that even if the prosecution case is taken as it is, then in the present case, no offence under Section 302 IPC is made out. At the most, the alleged offence falls under Section 304 IPC. While referring to the cross-examination of PW.1 Dr. S.K. Parnami, argued that the alleged fire shot by A1 was not on the vital part of the body of the deceased and if the fire would not have exactly struck against blood vessel of the deceased, then he would not have died. Thus, according to the learned counsel, the intention of A1 was not to cause death of Gurmail Singh, as the fire shot was given on the non vital part of the body i.e. thigh of the deceased. Learned counsel further argued that the occurrence took place in the spur of moment, without any pre-determination, whereas A2 is alleged to have given a spade blow only from its reverse side on the arm of injured Jasmail Singh. Therefore, there was no common intention between the appellants and A2 should have been convicted at the most for the offence under Section 325 IPC, i.e. for causing grievous hurt to Jasmail Singh, and his conviction under Section 302 read with Section 34 IPC is not justified.
31. On the other hand, learned Additional Advocate General, Dass Narotam 2014.03.04 12:46 I attest to the accuracy and integrity of this document Crl. A. No. D-21-DB of 2009 -15- Punjab, argued that the trial court has rightly convicted and sentenced the appellants on the basis of the reliable and trust-worthy evidence led by the prosecution.
32. We have considered the submissions made by learned counsel for the appellants and have also gone through the record of the case.
33. In the present case, the prosecution has established that on 19.5.2007 at about 10.30 PM, Dara Singh (A1) armed with a .12 bore double barrel gun along with his brother Dhola Singh (A2) armed with a kahi came in the field at syphon point. At that time, the complainant party was irrigating their fields through the said syphon. It is the case of the prosecution that when complainant Ajmer Singh and his brothers Gurmail Singh (since deceased) and Jasmail Singh (injured) requested the accused to first pay their share of construction of syphon and irrigate the land, A1 denied their liability to pay their share and exhorted that who can stop them from irrigating their fields. It is further the case of the prosecution that when Mangal Singh (acquitted by the trial court) raised lalkara to turn the flow of water, then Gurmail Singh (since deceased) asked the accused party not to use force. Thereupon, A1 fired a gun shot at Gurmail Singh, which hit on his right thigh near the testicles and he fell on the ground. When the complainant and his brother Jasmail Singh went ahead to save their brother, A1 fired another shot, which hit Jasmail Singh on his left shoulder and he also fell on the ground. It is alleged that when Jasmail Singh was lying, A2 Dass Narotam 2014.03.04 12:46 I attest to the accuracy and integrity of this document Crl. A. No. D-21-DB of 2009 -16- gave him a kahi blow from its reverse side on his left arm.
34. The appellants, in their statements under Section 313 Cr.P.C., have not disputed the occurrence. It has been admitted that A1 fired two shots from his licensed gun. However, he took the plea that he fired the shots in his self defence. According to his version, on the day of occurrence, he had gone to see his brother Dhola Singh (A2), who was working in the field, which was quite near to his house. Being night, he took his licensed gun with him. The moment he reached in the fields of A2, he was surrounded by the complainant side consisting of Gurmail Singh and Jasmail Singh along with few other unidentified persons. Gurmail Singh was armed with a kapa; whereas Jasmail Singh was holding a kulhari and was carrying a gun hanging around his shoulder. Gurmail Singh went ahead to give kapa blow to A1. Finding no way out to save himself from this attack and having no chance to run away, A1 fired a shot from his gun towards the legs of Gurmail Singh, the assailant. Since he was not expert in shooting, two fires went of simultaneously hitting Gurmail Singh and Jasmail Singh at the same time. He had no intention to kill or cause injury to any one.
35. Once an accused admits the occurrence and the injury inflicted by him to the deceased or the injured, it is for him to establish and prove the plea of self defence. In our opinion, in the facts and circumstances of this case, the plea of self defence taken by A1 is not sustainable for various Dass Narotam 2014.03.04 12:46 I attest to the accuracy and integrity of this document Crl. A. No. D-21-DB of 2009 -17- reasons. The right of private defence can be exercised only to repel unlawful aggression and not to retaliate as the right is one of defence and not of requital or reprisal. This right is available only to one who is suddenly confronted with immediate necessity of averting an impending danger not of his creation. The necessity must be present, real or apparent. The accused must have a reasonable apprehension that grievous hurt or death would be caused to him, if he does not use his right to self defence. In our opinion, in the present case, at night time, when A1 went to the fields, where A2 was working at night time, there was no reason for him to take his gun with him. He has stated that because it was night, therefore, he took his gun with him to see his brother A2, who was working in the fields. He has further stated that at that time, the complainant party, i.e. Gurmail Singh (since deceased) was armed with a kapa, whereas Jasmail Singh (injured) was holding a kulhari and was carrying a gun hanging around his shoulder, but during investigation, no such weapon was recovered from the spot. Even in the inquest report (Ex.P4), no such weapon was found at the spot. The accused have also not established in their defence that Gurmail Singh and Jasmail Singh were carrying those weapons. When the complainant party was not having any weapon, then the accused were having no apprehension that grievous hurt or death would be caused to them. A1 took the defence that when he was surrounded by the complainant party who were armed with the aforesaid weapons, finding no way out to save himself from this attack and Dass Narotam 2014.03.04 12:46 I attest to the accuracy and integrity of this document Crl. A. No. D-21-DB of 2009 -18- with no chance to run away, he fired a shot towards legs of Gurmail Singh, but since he was not expert in shooting, therefore, two fires went of simultaneously hitting Gurmail Singh and Jasmail Singh. This version is highly improbable. The version given by the complainant is that A1 first fired a gun shot straight at Gurmail Singh, which hit on his right thigh near the testicles, and the second gun shot fired by A1 hit Jasmail Singh on his left shoulder. Thereafter, while Jasmail Singh was lying on the ground, A2 gave him a kahi blow from its reverse side on his left arm. The medical evidence available on record fully supports this version given by the complainant. It is also admitted position that none of the accused had received any injury either from any blunt weapon or sharp edged weapon, or even any fist blow. If this is the position, there was no apprehension of causing bodily injury or death to any of the accused. Though to establish the plea of self defence, receiving of an injury by the accused is not the sole criteria, but from the facts and circumstances of this case, it appears that this fact assumes significance, particularly when no arm allegedly carried by the complainant party was either recovered from the spot or is proved to have been carried by the complainant side. Therefore, in our opinion, the plea of self defence taken by A1 is not established, as the same does not inspire any confidence.
36. Secondly, it cannot be said that the complainant party was aggressor. At the time of the occurrence, the complainant party was Dass Narotam 2014.03.04 12:46 I attest to the accuracy and integrity of this document Crl. A. No. D-21-DB of 2009 -19- irrigating their fields from the syphon, which was constructed by them. A1 had gone to the fields, where A2 was already working, and the occurrence had taken place at the site of syphon. Therefore, it cannot be said that the complainant party was aggressor and they were trying to dislodge or prevent the accused party from irrigating their fields in an illegal way. On the other hand, as per the prosecution version, the accused were liable to pay the cost of construction of the syphon to the extent of their share, but they wanted to use the said syphon without paying their share. When the complainant party restrained them from using the said syphon without making payment of their share, A2 who was armed with a kahi, tried to turn the flow of water to his fields, and when Gurmail Singh (since deceased) tried to desist him from doing so, A1 fired a gun shot towards him. Thereafter, he fired another shot, which hit on the left shoulder of Jasmail Singh. Then A2 gave a kahi blow from its reverse side on the left arm of Jasmail Singh. A blunt injury has been found on the body of Jasmail Singh. From all these facts, it appears that the plea of self defence taken by the accused party is after-thought and is not sustainable at all and the learned trial court has rightly convicted both the appellants on the basis of sufficient evidence available on record, which establish their involvement in the alleged crime, beyond a shadow of reasonable doubt.
37. Faced with this situation, learned counsel for the appellants argued that in the facts and circumstances of this case, the learned trial court Dass Narotam 2014.03.04 12:46 I attest to the accuracy and integrity of this document Crl. A. No. D-21-DB of 2009 -20- was not justified in convicting A1 for the offences under Sections 302, 307 IPC; and A2 for the offences under Sections 302/34, 307/34 IPC. According to the learned counsel, at the most, the alleged offence falls under Section 304 IPC. It has been argued that there was no intention on the part of A1 to cause death of Gurmail Singh, as he fired the gun shot on the non-vital part of Gurmail Singh, but the pallet struck against blood vessel of the deceased, which resulted into his death at the spot. We do not agree with this contention of learned counsel for the appellants. The present case is a clear case of murder. In the facts and circumstances of the case, it cannot be said that the present case is of culpable homicide not amounting to murder and falls under Section 304 IPC. It is the defence version of A1 that he fired a shot from his gun, but since he was not expert in shooting, therefore, two fires went of simultaneously hitting Gurmial Singh (since deceased) and Jasmail Singh. The theory of two fires being went of simultaneously cannot be believed. The first gun shot was caused to Gurmail Singh and the second shot was caused to Jasmail Singh. The first shot hit on the right thigh near the testicles of Gurmail Singh, and the second shot was struck on left shoulder of Jasmail Singh. Causing fire arm injuries, one after the other, to two persons itself shows the intention of the assailant. If an assailant is firing from his licensed gun towards a person, it cannot be presumed that he is having no intention to cause death of such person. In this case, it is by chance that the pallets struck against the non-vital parts of Gurmail Singh Dass Narotam 2014.03.04 12:46 I attest to the accuracy and integrity of this document Crl. A. No. D-21-DB of 2009 -21- (since deceased) and Jasmail Singh. Therefore, merely because by chance, the pallet hit a particular portion of the body, it cannot be said that A1 was having no intention to cause death. If an assailant gives fire arm injury to a person, there is every likelihood that it may cause death of such person, or may cause him such bodily injury, which is sufficient in the ordinary course of nature to cause his death. Thus, it is established that A1 fired a gun shot upon Gurmail Singh with intention to cause his death and his act does not fall under any of the exceptions, provided in Section 300 IPC, rather it falls under the definition of `murder' as defined in clause 'Firstly' of Section 300 IPC, and has committed an offence punishable under Section 302 IPC. It is further established that A1 fired another gun shot upon left shoulder of Jasmail Singh with intention to cause his death, and committed an offence punishable under Section 307 IPC.
38. In view of the aforesaid facts, we do not find any illegality in the impugned judgment and order, whereby appellant No.1 Dara Singh has been convicted and sentenced for the offences under Sections 302, 307 and 325/34 IPC; and appellant No.2 Dhola Singh for the offences under Sections 302/34, 307/34 and 325 IPC. Thus, the impugned judgment of conviction and the order of sentence are upheld and the instant appeal is, accordingly, dismissed.
39. Since appellant No.2 Dhola Singh is on bail, therefore, his bail bonds stand cancelled and he is directed to surrender himself before the jail Dass Narotam 2014.03.04 12:46 I attest to the accuracy and integrity of this document Crl. A. No. D-21-DB of 2009 -22- authorities immediately for completing remainder of his sentence, failing which the concerned authority shall proceed against him in accordance with law.
( SATISH KUMAR MITTAL )
JUDGE
January 22, 2014 ( KULDIP SINGH )
ndj JUDGE
Dass Narotam
2014.03.04 12:46
I attest to the accuracy and
integrity of this document