Punjab-Haryana High Court
Sukhdev Singh And Another vs State Of Punjab on 2 September, 2011
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. Appeal No. 845-SB of 2003
Date of decision: September 02, 2011
Sukhdev Singh and another
.. Appellants
Vs.
State of Punjab
.. Respondent
Crl. Revision No. 929 of 2003 Gurmit Singh .. Petitioner Vs. State of Punjab and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. T.S. Sangha, Sr. Advocate with Mr. J.S. Lalli, Advocate for the appellants.
Ms. Harpreet Kaur Dhillon, Advocate for the revision petitioner.
Mr. Baljinder Singh Sra, Addl. A.G. Punjab.
A.N. Jindal, J This judgment of mine shall dispose of Criminal Appeal No. 845-SB of 2003 (filed by the accused- appellants) and Criminal Revision No. 929 of 2003 (filed by the complainant), having arisen out of the same judgment, as such they are being decided together.
Sukhdev Singh and Karamjit Singh accused- appellants (herein referred as, 'the accused') have preferred this appeal against the judgment dated 28.3.2003 passed by the learned Sessions Judge, Bathinda, convicting and sentencing them as under :-
Sukhdev Singh u/s 307 Rigorous imprisonment for five years and to pay IPC and Karamjit Singh fine of `2000/- each.
u/s 307/34 IPC Sukhdev Singh u/s 27 of Rigorous imprisonment for three years and to Arms Act. pay fine of `1000/- Crl. Appeal No. 845-SB of 2003 & Crl. Revision No. 929 of 2003 -2-
However, both the accused were acquitted under Section 324 and 324 read with Section 34 IPC.
In nutshell, the allegations are that Gurmeet Singh complainant (herein referred as, 'the complainant') in his statement Ex.PA before SI Gurtej Singh had disclosed that on 28.9.2001, he and his father Bahadar Singh were returning from their fields and going to their house. However, they went to the grain market in order to select the site for unloading the paddy. At about 8.30 p.m. the accused Sukhdev Singh armed with .12 bore DBBL gun and Karamjit Singh alias Gagan armed with Gandasa were standing in the grain market near the bus stand village Bhodipura. Both the accused happened to be there and they asked the complainant and his father as to what they were doing there. They further exhorted that since the complainant has been harassing them and had come to inflict injuries to them. Thereafter, Sukhdev Singh fired a shot from his DBBL .12 bore gun at the complainant, but it missed on account of the fact that the complainant laid down on the ground. Karamjit Singh inflicted gandasa blow on his right leg near knee. When the complainant and his father Bahadar Singh raised hue and cry, then the accused Sukhdev Singh again fired a shot hitting the complainant over the anterior lower left chest just above the epigastrium which resulted into tattooing and skin loss. On hearing cries, some labourers came there and the accused persons fled away. Bahadar Singh after arranging the conveyance took the complainant to the hospital from where he was shifted to Christian Medical College, Ludhiana. ASI Gurtej Singh reached the hospital on 29.9.2001 and recorded the statement of the complainant, on the basis of which FIR was registered against them.
The Investigating Officer picked up the empties on 29.9.2001, arrested the accused on 2.10.2001 and recovered the gun from Sukhdev Singh on 3.10.2001. Two empty cartridges were sent to the Forensic Science Laboratory on 7.10.2001. He also recorded the statements of the witnesses. On completion of the investigation, challan against them was presented in the court.
On commitment, the accused were charged under Sections 307/324 read with Section 34 IPC and accused Sukhdev Singh was further charged under Section 27 of the Arms Act, to which they pleaded not guilty Crl. Appeal No. 845-SB of 2003 & Crl. Revision No. 929 of 2003 -3- and claimed trial.
Both Gurmeet Singh (PW1) and Bahadar Singh (PW2) have reiterated the prosecution version. ASI Sukhpal Singh (PW3) who was associated by SI Gurtej Singh is a witness to the arrest of the accused and also recovery of .12 bore DBBL gun pursuant to the disclosure statement made by accused Sukhdev Singh. He has also stated that Karamjit Singh accused got recovered gandasa pursuant to his disclosure statement made by him. Dr. Deepak S. Singh (PW4) has stated that on 29.9.2001, Gurmeet Singh was brought to the Casualty Ward with gun shot injury to the left lower chest and injury to the right knee with gandasa. He observed the following injuries on his person :-
"1. There was 5 x 7 cms wound over the anterior lower left chest, just above the epigastrium with tattooing and skin loss.
2. There was 5 cms transverse laceration over the right knee.
He has opined that the kind of weapon used was fire arm for injury No.1 and sharp edged weapon was used for injury No.2. Duration of the injuries was within four hours. Nature of injuries was simple. He has also proved MLR Ex.PW4/A, pictorial diagram showing the seats of the injuries Ex.PW4/B. He has further opined that the injury No.1 could be result of fire arm i.e. .12 bore gun.
Hardial Singh (PW5) has stated that the gun recovered from the accused was licenced gun. ASI Mohinderjit Singh (PW6), MHC Nirmal Singh (PW7), C. Santosh Kumar (PW8) and C. Surinder Pal Singh (PW10) are formal witnesses. Gurtej Singh Investigating Officer (PW9) has proved the statement of the complainant Gurmeet Singh.
When examined under Section 313 Cr.P.C. they denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. Accused Sukhdev Singh further explained as under :-
Crl. Appeal No. 845-SB of 2003 & Crl. Revision No. 929 of 2003 -4- "I along with my son Karamjit Singh have been falsely implicated in this case. On 28.9.2001, our paddy crop was being weighed in the grain market of our village Bodhipura. I was sitting on a cot, while my son Karamjit Singh was standing near the place where the weighing process was going on. Gurmeet Singh came at the spot at 8.30 PM along with gandasa came on motor cycle with an intention to cause injuries to me. Roop Singh son of Major Singh, Jagseer Singh son of Ajaib Singh, Nahar Singh son of Hari Singh, Buta Singh son of Basant Singh of village Bhodipura and some other persons were present in the grain market at the spot at that time. Our paddy crop was being weighed by Jagseer Singh, Nahar Singh and Buta Singh. At that time, Gurmeet Singh gave a gandasa blow from the reverse side on my back and thereafter my son Karamjit Singh and Gurmeet Singh had a scuffle and as a result of which Gurmeet Singh fell down on the ground at Bailcha and sustained injury on his knee. On this, I fired two shots in air with my licenced DBBL gun with an intention to scare away Gurmeet Singh. No gun shot injury was caused by me to Gurmeet Singh. Injury on the chest of Gurmeet Singh was fabricated by him by placing burning hot prong on iron strips on his chest. I have gun licence for the last many years. The dispute regarding passing of tubewell water through pucca water course between me and Gurmeet Singh was settled by the Panchayat by striking a compromise between me and Gurmeet Singh a few months prior to 28.9.2001 and it was settled that I could pass the tubewell water through pucca water course. Myself and my son Karamjit Singh were arrested from our house on 29.9.2001 and were falsely implicated in this case. The application regarding our false implication was moved to SSP, Bathinda by my son Swaranjit Singh, which was marked to DSP Phul Sh. Jagjit Singh Gill and statements of many persons were recorded by SI/SHO Krishan Sigh of Police Station Dialpura, Crl. Appeal No. 845-SB of 2003 & Crl. Revision No. 929 of 2003 -5- in this regard."
Accused Karamjit Singh also took the identical plea. However, no evidence was led in defence.
The trial resulted into conviction.
Arguments heard. Record perused.
I am not persuaded by the contention raised by the learned counsel for the appellants that there is delay in lodging the FIR. The occurrence took place during the night. The gun shot injury on the person of the complainant was on the vital part of the body and sensing it to be serious the doctors at Primary Health Centre, Bhagta Bhai Ka referred the injured to Christian Medical College, Ludhiana, where he was admitted. After receipt of the QST message in the Police Post Dialpura, ASI Gurtej Singh went to the Primary Health Centre, Bhagta Bhai Ka on 28.9.2001 at about 11.15 p.m, but by that time the complainant had already been shifted to C.M.C. Ludhiana. Thereafter the Investigating Officer reached the CMC, Ludhiana at 4.00 a.m. On 29.9.2001 and moved application Ex.PW9/A at 4.20 a.m.. He has duly explained that it was only at 9.15 a.m. That he received the opinion about the fitness of the complainant to make statement, then he recorded his statement which was completed at 10. 45 am.
In a case of gun shot injuries, the people in this part of the country remain over conscious, anxious and give priority to save the life of their ward then to go to the police station for the purpose of lodging the FIR. As such, the delay, if any, in lodging the FIR stands explained. Moreover, the case is based on the testimony of the injured witness and his father, who would be the last persons to implicate a false person in place of the real culprits. As such, in the light of the statements of these two witnesses, the delay in lodging the FIR looses the significance particularly when there was no serious motive for falsely implicating them in the case.
As regards the next argument that the injury is not a gun shot injury, but the same is fabricated one. Ample evidence has been led by the prosecution to prove that it was a gun shot injury. Dr. Deepak S. Singh (PW4) has given a definite opinion with regard to the nature of the injuries Crl. Appeal No. 845-SB of 2003 & Crl. Revision No. 929 of 2003 -6- as well as the weapon with which it has been caused. It has been specifically stated that the injury could be the result of fire arm i.e. .12 bore gun. Further the empties were recovered from the place, which were sent to the Forensic Science Laboratory and got compared with the cartridges fired from the gun. Dr. S.N. Sharma, Deputy Director Ballistic, in his report Ex.PU has stated that the empties so recovered when compared with the .12 bore DBBL gun received in the laboratory were found to have been fired from the same gun. It is definite evidence on the record that the police had reached the place of occurrence on 29.9.2001 and lifted two empties at the spot. The witnesses have also stated that two fires were shot by the accused Sukhdev Singh, out of which one missed and the other hit the complainant below his chest. Even the accused in his statement under Section 313 Cr.P.C. had admitted to have used the gun but they have come with different version that the shots were fired in the air, but this version stands unsubstantiated by any evidence particularly in view of the injury suffered by the complainant and that injury was held to be the result of gun shot by the doctor and the witnesses had stated that Sukhdev Singh had fired a shot which hit the complainant.
The other contention raised by the learned counsel for the appellants is that the complainant suffered two injuries in all, out of which the trial court has not believed the injury attributed to Karamjit Singh and both the accused were acquitted of the charge under Section 324, 324/34 IPC for the injury caused with gandasi on the foot of the complainant, as such, Karamjit Singh cannot be convicted under Section 307 read with Section 34 IPC as he did not cause any other injury to the complainant and he also cannot be said to have common intention with the accused Sukhdev Singh, who had fired the shot and injured the complainant.
In this regard it may be observed that it is admitted case of the parties that Sukhdev Singh and Karamjit Singh were together in the grain market and Karamjit Singh in his statement under Section 313 Cr.P.C. admits about the quarrel having taken place with the complainant party and he had a scuffle with the complainant, therefore, he cannot be held to have no common intention with his father Sukhdev Singh when he fired shots and caused injuries to the complainant. However, in view of the Crl. Appeal No. 845-SB of 2003 & Crl. Revision No. 929 of 2003 -7- contradictory medical evidence with the ocular version, the possibility of exaggeration by attributing specific injury to Karamjit Singh cannot be ruled out.
It has been next contended that the story as set up by the prosecution stands established even then injuries on the person of the complainant being simple in nature and in the absence of any intention to commit the murder, no offence under Section 307 IPC, could be made out and the accused could be convicted only for an offence under Section 324 IPC.
While examining the facts and circumstances of the present case on the para meters as referred to above, it is observed that the motive behind this case is the dispute over water course which passes through the land of the complainant and his father. The accused forcibly wanted to pass the water of their tubewell through the aforesaid water course. On the objection being raised by the complainant party a quarrel had ensued two months prior to the occurrence, but the matter was compromised. This motive was not made the cause for causing the injuries as from the story set up by the complainant party itself is that the accused exhorted that they were harassing them but there was no reference that they did not allow them to pass the water from the said water course or compromise was not suiting them. However, the evidence reveals that the accused had apprehension that the complainant and his son had come to cause them injuries. The complainant party was also not believed qua the aspect of causing injuries by Karamjit Singh on the foot of the complainant due to the inconsistency between the medical evidence and the ocular version. The incident appears to be the result of sudden quarrel when both the parties came face to face in the grain market and none of the accused, by uttering any such word, challenged the complainant and his father for killing them. Again, according to the complainant party, two shots were fired, out of which one shot missed and the other shot fired by Sukhdev Singh resulted into a simple injury under the chest. The injury was muscle deep resulting into growing of the tattooing. No pellet was found in the injury. Crl. Appeal No. 845-SB of 2003 & Crl. Revision No. 929 of 2003 -8- The question to be determined in this case is whether the offence under Section 307 IPC is made out or not. The essential ingredients for an offence to be covered under Section 307 IPC are as follows :-
1) that death of a human being was attempted;
2) that such death was attempted to be caused by, or for
consequence of the act of the accused;
3) that such act was done with the intention of causing
death; or that it was done with intention of causing such bodily injury as; (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death; or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all human probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
To justify a conviction under this Section, although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances and may even in some cases be ascertained without any reference at all to actual wounds. Even if the injury was on the vital part of the body, but it is simple in nature, then the offence cannot be said to be covered under Section 307 IPC. It has been held by the Allahabad High Court in case Kalloo & Another vs. State 1993 (1) Crimes 397 that when the gun shot injuries on the person of injured were simple in nature, though were on the vital part of the body, but the doctor opined them neither grievous nor dangerous, the offence falls under Section 324 and not under Section 307 IPC.
The Apex Court in case Tukaram Gundu Naik vs. State of Maharashtra 1994 Cri. L. J. 224 wherein the injury was on the elbow joint and incised wound on the epigastric region, but were simple in nature, observed as under :-
Crl. Appeal No. 845-SB of 2003 & Crl. Revision No. 929 of 2003 -9- ".......... Further, the doctor's evidence would show that none of the vital organs was injured. Under these circumstances, a doubt arises whether the accused intended to commit murder and thus made an attempt. In our view the accused can be attributed only knowledge that by inflicting such injuries he was likely to cause death and an attempt to commit such an offence would be one punishable under Section 308 IPC. Section 308 IPC lays down that such an offence is punishable with imprisonment which may extend to three years or with fine or with both and if hurt is caused, the assailant can be punished with imprisonment of either description which may extend to seven years or with fine or with both."
In case Parshotam Lal vs. Shingara Ram 1996 (2) RCR (Criminal) 630 this Court while finding the simple injury on the vital part of the body which was not dangerous to life observed that the offence under Section 307 of the Code would not be made out.
The Division Bench of this Court in case State of Punjab vs. Bant Singh 1996 (2) R.C.R. (Criminal) 135 had given much stress about the actual intention of the accused which could be inferred from the nature of the injury and extent of the damage caused to the body. Their Lordships in Bant Singh's case (supra) observed as under :-
".......... All that has been said is that the injury having been caused by a sharp edged weapon and being on vital part of the injured, the same would be sufficient enough to charge and accordingly convict Bant Singh and Nachhattar Singh under Section 307 IPC. The sole contention of the learned counsel, as noted above, does not impress us at all. Simply because the concerned injury is on the vital part of the body, in our view, will not be enough to bring it either under Section 307 or Section 326 IPC. To charge a person under Section 307 or 326 IPC, it shall have to be shown as to what was the actual intention of the assailant as also as to what is the nature of injury i.e. the extent of damage caused to body or any organ thereof. It is true that Nachhattar Singh has been attributed an Crl. Appeal No. 845-SB of 2003 & Crl. Revision No. 929 of 2003 -10- injury on the head of injured and the said injury appears to have been caused with sharp edged weapon but, from the medical evidence, gist whereof has been given above, it appears that there was no damage to any vital part nor any fracture was found on x-ray examination. The case against Nachhattar Singh and Bant Singh, thus, could not fall either under Section 307 or Section 326 IPC. Their acquittal on the charge of Section 307 IPC is, thus, justified and order passed on that count by the trial judge calls for no interference."
In another case Rohtas vs. State of U.P. 2000 Cri. L.J. 89 wherein the accused had caused gun shot injuries resulting into simple injury on the body of the victim, the court observed as under :-
"......... The evidence of motive is no doubt there but considering that only a single shot was fired and that the fire only resulted in an entry wound with one pellet which fell down from it and five pellets which entered in the body but did not go deep enough to damage the spinal cord nor injured any other internal organs of the body, as such, it cannot be said that the act was done with an intention or knowledge and under such circumstances that if he by that act caused death, he would be guilty of culpable homicide amounting or not amounting to murder. So it cannot be said that the offence under Section 307 IPC or even 308 IPC has been made out....."
This Court, in another case Gurmit Singh vs. U.T. Chandigarh 2003 (1) R.C.R. (Criminal) 535 observed as under :-
"18. Keeping in view the totality of the circumstances and sifting and weighing the material for limited purposes of charge, I am of the view that the charge framed by the learned Additional Sessions Judge for offence under Section 307 IPC is not sustainable. The state of mind of the petitioners and the surrounding circumstances do not make out a case that there was an intention on their part to murder the complainant. Neither are the injuries of the kinds referred to in Section 300 of the IPC. The charge framed for the offence under Section Crl. Appeal No. 845-SB of 2003 & Crl. Revision No. 929 of 2003 -11- 307 IPC is not commensurate but rather disproportionate to the gravity of situation and the offence. Therefore, I am of the view that there is no prospect of the case ending in conviction of the petitioners for the offence of attempt to murder within the ambit of Section 307 IPC. As such no purpose would be served by going through the ritual of completing the procedure and then merely pronouncing the judgment at the end of the trial. As held in Satish Mehra's case the object of providing an opportunity to the accused at the time of consideration of the charge is to enable the Court to decide whether it is necessary to proceed to conduct the trial and if the case ends there it gains a lot of time of the Court and saves much human efforts and cost. The ratio of the said judgment would enjoin upon the Court to examine that if the accused is to be tried, then for what offences is he to be tried. This is more so where the offences relate to cases triable by Court's of Sessions or the Magistrate. In the present case by holding that charge for the offence under Section 307 IPC is not made out, the case would be triable by the Chief Judicial Magistrate/Illaqa Magistrate."
The Apex Court in a recent case titled as Rattan Singh vs. State of M.P. and another 2010 (1) RCR (Criminal) 927 while placing reliance on the judgment delivered in case Sarju Prasad vs. State of Bihar AIR 1965 SC 843 observed as under :-
"6. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim Crl. Appeal No. 845-SB of 2003 & Crl. Revision No. 929 of 2003 -12- were in the nature of simple hurt.
7. This position was highlighted in State of Maharashtra v. Balram Bama Patil and others (1983) 2 SCC 28), 9 Girija Shanaker v. State of Uttar Pradesh, 2004 (1) RCR (Criminal) 839 : 2004 (2) Apex Criminal 411 : (2004 (3) SCC 793), R. Parkash v. State of Karnataka (JT 2004 (2) SC 348) and State of M.P. v. Saleem @ Chamaru and Anr. 2005 (3) R.C.R. (Criminal) 749 : 2005 (2) Apex Criminal 575 : (2005 (5) SCC
554), and State of Madhya Pradesh v. Imrat and Anr. 2008 (11) SCC 523.
8. In Sarju Prasad v. State of Bihar (AIR 1965 SC 843) it was observed in para 6 that the mere fact that the injury actually inflicted by the accused did not cut any vital organ of the victim, is not by itself sufficient to take the act out of the purview of Section 307.
9. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is intention or knowledge, as the case may be, and not nature of the injury. The basic difference between Section 333 and 325 IPC are that Section 325 gets attracted where grievous hurt is caused whereas Section 333 gets attracted if such hurt is caused to a public servant."
From the bare reading of the aforesaid Section, the Apex Court was of the view that the determinative facts to decide the nature of the offence is the intention or the knowledge to commit the crime and not the nature of the injuries. In the instant case, the facts and circumstances speak for themselves that the accused had no such intention or requisite knowledge that by causing such injury, if death is caused, he would be guilty of murder. The accused never knew that the complainant party would arrive at the grain market. Since the dispute which had arisen earlier had been settled, no serious motive remained behind to commit the murder of Crl. Appeal No. 845-SB of 2003 & Crl. Revision No. 929 of 2003 -13- the injured. The accused did not cause any injury to Bahadar Singh father of the injured and felt satisfied by causing muscle deep simple injury to the complainant. The occurrence took place during night i.e. at about 8.30 p.m. The witnesses themselves admit that the injury was caused from a distance of 4-5 karams, certainly it was to result in simple injury. Had there been an intention on the part of the accused to cause fatal injury to the complainant, then he would have attacked the injured from the close range and they would not have returned after causing a simple injury. As such, it would not be appropriate to hold that the accused had fired a shot at the complainant with an intention to cause such injury which may be sufficient to cause death in the ordinary course of nature. It was also observed in case Bhagwan Din and others v. State, AIR 1967 Allahabad 580 as under :-
"The mere fact that a firearm was used to cause injuries to the victim will not necessarily bring the case under Section 307. There can be no presumption that the accused intended to cause the death merely because he used a firearm to cause hurt. The intention of the accused person has to be established from either the nature of his act actually committed by him or from other surrounding circumstances. Where the injury has actually been caused to the victim, the prosecution, while attempting to establish that the real intention of the accused was to cause an injury of the nature which was sufficient in the ordinary course of nature to cause death or was so imminently dangerous that it would cause death, had further to establish the intention or knowledge of the accused as contemplated in Section 307 IPC. The burden of proof is on the prosecution and not on the accused."
It was also observed in case State of Punjab vs. Parveen Kumari and others 1991 (3) RCR (Criminal) 422 (DB) that when simple injury was caused and no further shot was fired, although revolver contained three more bullets, there was no evidence to establish the existence of the requisite intention or knowledge of the accused, therefore, the court rightly convicted the accused under Section 324 IPC. Crl. Appeal No. 845-SB of 2003 & Crl. Revision No. 929 of 2003 -14- It is further observed that the assessment of necessary intention could be made out from mental state, skill of the accused, the distance of the assailant and the victim, their position at the commission of the crime. In the instant case also, the accused appears to have fired a shot when he was not in a position to cause fatal injury as the fire passed by the side of the victim by causing a grazing injury. It appears that the accused fired shots to scare the complainant away, but per chance the complainant stood up and came in spate. Thus, from the facts and circumstances of the case and the manner in which the injuries were caused and from the distance from where the fire was shot it would be difficult to hold that the accused had the requisite intention or knowledge to commit the crime as defined under Section 307 IPC.
In the result, this appeal is partly accepted, the impugned judgment is set aside and the accused are acquitted of the charges under Section 307 IPC. However, accused Sukhdev Singh is convicted under Section 324 IPC, whereas, accused Karamjit Singh is convicted under Section 324 read with Section 34 IPC. As per the custody certificate produced by the State counsel, Karamjit Singh accused has undergone five months and twenty-nine days and the accused Sukhdev Singh has undergone two years and sixteen days of the substantive sentence. Consequently, the sentence awarded to the accused is reduced to that of already undergone by them without any alteration in the sentence of fine.
Consequently, the petition filed by the complainant stands dismissed.
September 02, 2011 (A.N. Jindal) deepak Judge