Punjab-Haryana High Court
Vir Pal vs State (U.T., Chandigarh) on 27 February, 2008
JUDGMENT Sham Sunder, J.
1. This appeal is directed against the judgment of conviction and the Order of sentence dated 18-10-1994, rendered by the Court of District and Sessions Judge, Chandigarh, vide which it convicted the accused/appellant, for the offence punishable under Section 304-A of the Indian Penal Code, and sentenced him to undergo rigorous imprisonment for one year, whereas, he was acquitted for the offence under Section 304 part II of the Indian Penal Code.
2. The facts, in brief, are that, on 13-05-1991, Constable Ajmer Singh (PW-10) was posted in Police Station, Sector 36, Chandigarh, as gun man of the Station House Officer Inspector Bakshish Singh. At about 06.15 p.m., he had gone to the Malkhana, for obtaining a carbine, from the accused posted as MMHC in the said Police Station. The accused picked up a carbine, and placed it, on the table remarking that it was a new weapon, and he would test it, as sometimes, the weapon misfires. Saying so, the accused slipped a magazine into the carbine. Six live cartridges came out of the magazine, on being taken out, one by one, by the accused. At that time, Constable Inderjit Singh and Constable Surinder Kumar, were also present at that place. The accused lifted his hand from the cocking handle of the carbine, as a result whereof, his finger hit the trigger of the said weapon, and six rounds got fired from the carbine, which hit Constable Surinder Kumar, who was standing near the table, and towards whom the muzzle of the weapon, was then pointed. Surinder Kumar fell down, on the floor. He was immediately removed to the Post Graduate Institute of Medical Education and Research, Chandigarh, where, he succumbed to his injuries on 16-05-1991.
3. On receipt of an intimation, regarding the admission of Surinder Kumar, Constable of Police Station, Sector 36 from the Post Graduate Institute of Medical Education and Research, an A.S.I., namely Hari Prem of the aforesaid Police Station, went to that Institute, and moved an application before the doctor, as to whether, the injured was fit to make a statement. The doctor opined that he was unfit to make a statement. On the basis of the statement (exhibit PK/1) made by Ajmer Singh, F.I.R. (exhibit PK/2) was registered. During the course of investigation, carbine (P1) along with magazine, six live cartridges and six empty cartridges were recovered. Separate parcels were prepared and the same were taken into possession vide memo (exhibit `PL') attested by the witnesses. The accused was arrested. On 16-05-1991, a report was received from the P.G.I., that Surinder Kumar, who was admitted with fire arm injuries, had expired. Hari Prem, A.S.I., prepared the inquest report (exhibit PF) of the dead body of Surinder Kumar. The dead body was sent to the General Hospital for postmortem examination. The post mortem on the dead body was conducted by the doctor. The statements of the witnesses were recorded. After obtaining sanction (exhibit PG) for launching prosecution, against the accused, and after the completion of investigation, the challan was presented under Section 304 I.P.C.
4. On his appearance, in the Court of the Committing Magistrate, the copies of documents, were supplied to the accused. After the case was received by commitment, in the Court of Sessions, charge under Section 304 Part II I.P.C., was framed against the accused, to which he pleaded not guilty and claimed judicial trial.
5. The prosecution, in support of its case, examined Dr. M.G.N. Kishore, General Surgery, P.G.I., Chandigarh (PW-1), who admitted Surinder Kumar, Constable, on 13-05-1991, at about 06.40 p.m., as a case of gun shot injuries, on both thighs. He was operated upon on 14-05-1991 for the said injuries. The operation notes indicated that there was a big hematoma surrounding the neurovasculer bundle, in the middle of thigh, femoral artery as well femoral v were both almost completely transacted. He further stated that he declared the injured unfit to make a statement. He further stated that Surinder Kumar died on 16-05-1991, and intimation in regard to the same, was sent to the concerned Police Station.
6. Dr. C.S. Rao (PW-2) declared the injured unfit to make a statement on 14-05-1991, at about 04.05 p.m. He again declared him unfit to make a statement on 15-05-1991 at 1.00 p.m.
7. Dr. R.M. Singh (PW-3) stated that Surinder Kumar, deceased, was his nephew, being a son of his second male cousin. He identified the dead body of Surinder Kumar, deceased, at the time of postmortem and preparation of inquest proceedings.
8. Dr. G. Dewan, Medical Officer, General Hospital, Sector 16, Chandigarh (PW-4) stated that on 17-05-1991, at about 10.05 a.m., he conducted postmortem examination on the dead body of Surinder Kumar, son of Jagdish, aged 30 years male. The dead body was brought by A.S.I. Hari Prem of Police Station, Sector 36 and identified by Dr. R.M. Singh and Rajbir Singh sons of Sapattar Singh. He found the following injuries on his dead body:
1. Lacerated & penetrating wound below left sub costal region of abdomen measuring 2x1cm.
2. Lacerated wound 5 cms. below injury No. 1 measuring 6cm x 3cms. Loop of interstine protuding - wound is infected.
3. 6cms below injury No. 2 lacerated & penetrating would 1x1cm.
4. Stitched wound extending from left supra public region to the medical aspect of left knee measuring 44 cms.
5. Lacerated wound 7x4cms on the left anterior superior ilac spine with extensive damage to underline muscle wound is infected.
6. 5cms x 3cms lacerated & penetrating margins inverted, contused, tatood marked around the margin direction of the wound upward & medially communicates with lacerated wound on the left medial & upper part of left thigh. Wound is infected.
7. Lacerated wound 15cms x 8cms on the media aspect of upper part of right thigh, there was extensive damage to the underline structure, muscles & blood vessels, wound was infected.
8. Lacerated wound 6cms x 3cms on the medial aspect of left thigh exactly opposite to the wound No. 7 inverted & contused margins.
9. Lacerated wound 14 cms x 6cms on the latter aspect left thigh upper end, margins were everted & extensive damage to muscles & underline vessels.
9. The cause of death was shock and haemorrage with septicemia, resulting from gun shot injuries, which were sufficient enough to cause death, in the ordinary course of nature. All the wounds were antemortem in nature. The probable time that lapsed between the injuries and death was within 72 to 80 hours, and between death and postmortem was within 24 hours.
10. Lalit Parsad, UDC, Home Branch, U.T. Secretariat, Chandigarh (PW-5) proved the sanction exhibit PG, accorded by the Home Secretary, for launching prosecution against the accused.
11. Jaswant Singh, draftsman, Public Health Division No. 4, U.T., Chandigarh (PW-6) prepared the scaled plan (exhibit PH) on the pointing out of constable Inderjit Singh.
12. S.I., Karam Chand of the Office of S.S.P. U.T., Chandigarh (PW-9) brought the transfer order dated 30-04-1991 of Virpal to Sector 36, Chandigarh as MMHC. He proved PJ, copy of the transfer order.
13. Constable Ajmer Singh (PW-10) is a witness to the occurrence.
14. Constable Mohinder Singh (PW-11) took the photographs (exhibits P8 to P15) of the scene of occurrence. He also proved the negatives of P16 to P23. He also took the photograph exhibit P24 of the dead body of Surinder Kumar in P.G.I., the negative, whereof is exhibit P25.
15. Inspector, Bakhshish Singh, Police Control Room, Chandigarh (PW-12) stated that he was sitting in the Office of the D.S.P., situated in the basement of the same Police Station, when on hearing the sound of firearm, he rushed to the basement and at the Malkhana gate, he found the Assistant Head Constable, Surinder Kumar, now deceased, lying shot. He further stated that, he along with other police officials, immediately rushed Surinder Kumar to P.G.I., and got him admitted there. He entered the report No. 40 of departure on the same day in the D.D.R., which is exhibit PM. He also recorded the report in the DDR, on return from P.G.I. (copy of which is exhibit PN).
16. Dr. Gurpreet Singh, Additional Professor, Department of Surgery, P.G.I., Chandigarh (PW-13) brought the record of Surinder Kumar, deceased, who was admitted in P.G.I. On 13-05-1991, as a case of gun shot injuries, to both thighs, and perineum. He found the following injuries on his person:
1. There were entry and exit wounds on both thighs, measuring 1 cm to 1.5 cm and bleeding actively.
2. There were lacerated entry and exit wounds on either side of the anus which were communicating with both gluteal regions.
3. All the pulses on the left lower limb below the level of the groin were absent. He further stated that he died on 16-05-1991, as a cumulative effect of all the injuries.
17. C.N. Bhatachariya, Assistant Director Ballistic, Central Forensic Science Laboratory, Chandigarh (PW-14) compared the test cartridges, with the crime cartridges, for examination of individual characteristic marks and came to the conclusion that the crime cartridges mark `C1 to C6' had been fired through the 9mm carbine P1. He further stated that the same could not have been fired from any other weapon. He gave his report exhibit PO. He stated that carbine was P1 and the fired cartridges were exhibits P2 to P7, whereas, metalic pieces were exhibits P-8A to P-10A. The empty fired cartridges were exhibit P-11A to P-13A, the fired bullets out of them were exhibit P-14A to P-16A.
18. Inderjit Singh (PW-15) ADA Branch, U.T., Chandigarh also witnessed the occurrence. Thereafter, the Public Prosecutor closed the prosecution evidence.
19. The statement of the accused under Section 313 Cr.P.C., was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He admitted that on 13-05-1991, he was working as MMHC in Police Station, Sector 36, and Constable Surinder Kumar was working with him as Assistant MHC. He denied that at about 6.15 p.m., Constable Ajmer Singh came to the Malkhana for obtaining a carbine and asked him to issue the same, for his duty. He denied that he took out carbine exhibit P1 and placed the same on the table, and slipped the magazine, into the weapon for test. He, however, stated that on 13-05-1991, in the evening, he was present in the Malkhana, where, Surinder Kumar was also present. Surinder Kumar was checking the carbine exhibit P1, and had placed it on the table for checking it and it slipped out of his hand. On that account, his finger stood lifted out of his hand and due to that, pressure on the trigger was released and burst of bullets was fired. One of the bullets hit his (Surinder Kumar's) thigh and another top of the table, in the corner. Surinder Kumar was, in standing posture, and he fell down on the floor of the Malkhana, on receiving fire arm injuries. Inspector Bakhshish Singh, who was then S.H.O., Police Station, Sector 36, Chandigarh, reached the Malkhana, on hearing about the occurrence of the incident, and he helped him for removing Surinder Kumar, to the P.G.I. He further stated that he told Bakhshish Singh, about the said version of the incident, but his statement was not recorded, by the Inspector, or any other police officials. He further stated that Surinder Kumar died in the P.G.I. on 16-05-1991 and after his death, a false case was registered against him. He did not leave his duty, after the incident had taken place and was placed under suspension on 17-05-1991. He, however, did not lead any evidence in his defence.
20. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore.
21. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant.
22. I have heard LearnedCounsel for the parties, and have gone through the evidence and record of the case, carefully.
23. Counsel for the appellant, at the very outset, contended that the trial Court was completely wrong in placing reliance on the evidence of Constable Ajmer Singh (PW-10) and Constable Inderjit Singh (PW-15) who are the police officials and were bound to support the prosecution case. It was further contended by the LearnedCounsel for the appellant, that, under these circumstances, the trial Court was required to critically scrutinize the evidence of both these witnesses, so as to find out the truth, which it failed to do, as a result whereof, miscarriage of justice occasioned. He further contended that the appellant did not commit any offence.
24. The Counsel for the respondent, however, supported the judgment of the trial Court.
25. Virpal-accused, in his statement, under Section 313 Cr.P.C. admitted that on the relevant day, he was posted as MMHC in Police Station, Sector 36, Chandigarh, whereas, Surinder Kumar was posted as Assistant with him in the Malkhana. Even otherwise, from the statement of S.I., Karam Chand (PW-9), it was proved that on 30-04-1991, Virpalaccused was transferred to Police Station, Sector 36, Chandigarh and posted as MMHC. He proved exhibit PJ, photocopy of the transfer order. Therefore, there was no dispute, with regard to the posting of the accused, and the injured, in the same Malkhana, at the time, the incident took place in the Police Station, itself. Ajmer Singh (PW-10) and Inderjit Singh (PW15) were posted in Police Station, Sector 36, Chandigarh on 13-05-1991, the date on which, the incident took place. Their presence, in the Police Station, at the relevant time, therefore, was most probable and natural. Ajmer Singh, Constable was working as a gun man to Inspector Bakhshish Singh, S.H.O., Police Station, Sector 36, Chandigarh. He in clear-cut terms stated, in his statement, that at about 6.15 p.m. on 13-05-1991, he had gone to the Malkhana for obtaining a carbine from the accused. He asked him to issue the same, as he was to be on duty. According to him, the accused picked up carbine P1 and placed it on the table. He further stated that the accused then remarked that it was a new weapon, and before issuing the same, in his favour, he would test it, as sometimes the weapon misfires. Saying so Virpal accused slipped the magazine into the weapon, and by keeping the said weapon on the table, he cocked the weapon, as a result whereof, six live cartridges came out of the magazine, on being taken out one by one. It was further stated by him that Surinder Kumar deceased was present, in the Malkhana, at that time. His evidence was further to the effect that Virpal then lifted his hand from the cocking handle of the carbine (exhibit P1) and then his finger hit the trigger of the carbine, as a result whereof, six rounds were fired from the carbine. All the six shots hit Constable Surinder Kumar, who was standing near the table towards whom the muzzle of the weapon was then pointed. He further clarified that the bullets so fired, hit both the thighs of Constable Surinder Kumar and he fell at the door of the Malkhana, from where, he was removed to P.G.I., where, he was admitted and, ultimately, died on 16-05-1991. The statement of Ajmer Singh (PW-10) was duly collaborated, in all material particulars, by Constable Inderjit Singh (PW-15) another eye witness. Not only this, Bakhshish Singh (PW-12) who was posted as SHO Police Station, Sector 36, Chandigarh, on hearing the sound of shot, rushed to the basement and found that at the Malkhana gate of the Police Station, Surinder Kumar, Assistant Head Constable was lying shot. There was no reason, on the part of Ajmer Singh, Constable (PW-10), Inderjit Singh, Constable (PW-15) and Bakhshish Singh, Inspector (PW-12) to depose falsely. They had no ill-will, grudge or enmity against the accused. The ocular evidence was duly corroborated by the medical evidence of Dr. M.G.N. Kishore (PW-1), Dr. C.S. Rao (PW-2), Dr. R.M. Singh (PW-3), Dr. G. Dewan (PW-4) and Dr. Gurpreet Singh (PW-13). The doctors stated that Surinder Kumar had sustained gun shot injuries and his death was due to the same. Further corroboration to the ocular and medical evidence was provided by C.N. Bhatachariya, Assistant Director Ballastic, Central Forensic Science Laboratory (PW-14) who received two sealed parcels for examination, one containing, one 9mm carbine No. 15215681 along with magazine (marked `A') and second parcel containing, six 9mm fired cartridges, one mutilated bullet, and two metalic pieces (mark C1 to C6 and B1, B2 and B3). He received another sealed parcel, which contained six 9mm live cartridges for test purpose. The seals were intact and tallied with the specimen seal. He conducted test firing with the live cartridges, sent to him. The test cartridges with the crime cartridges were compared, and he came to the conclusion that the crime cartridges (mark C1 to C6) had been fired through the 9mm carbine P1 and could not have been fired, from any other weapon. He gave his report (exhibit PO) in this regard. It was, therefore, proved from his statement that the carbine, in question, was used for the crime. The trial Court, in my opinion, critically scrutinized the ocular, as well as, medical and circumstantial evidence, and rightly came to the conclusion, that it was, on account of the rash or negligent act of the accused, that the death of Surinder Kumar was caused. The evidence produced by the prosecution, has also been reappraised by this Court. Nothing could be found during the course of the cross-examination of the witnesses, which may go to discredit their evidence. The evidence of the prosecution witnesses, was rightly held to be cogent, convincing and creditworthy by the lower Court. The version set up by the accused, in his statement under Section 313 Cr.P.C. was falsified by the evidence of the trustworthy witnesses of the prosecution. The contention of the Counsel for the appellant, therefore, being without merit, must fail, and the same stands rejected.
26. It was next submitted by the LearnedCounsel for the appellant, that it was not proved, from the evidence, on record, that the accused was either rash or negligent, in handling the carbine P1, as a result, whereof, six cartridges got fired therefrom, resulting into the death of Surinder Kumar. He further contended that since rashness or negligence was not proved, no case under Section 304-A of the IPC was made out. He also placed reliance upon M. Shafi Garoo v. State 2000(3) RCR (Criminal) 178, Dr. Prabha G. Nair v. Mohanan 2002(3) RCR (Criminal) 235 and Kishan Chand and Anr. v. State of Haryana 1971, Punjab Law Reporter 191, to support his contention. The submission of the LearnedCounsel for the appellant, does not appear to be correct. The evidence of Ajmer Singh, Constable (PW-10) and Inderjit Singh (PW-15) has been discussed, in detail, in the preceding paragraphs. From their evidence, it was proved beyond doubt that before issuing the weapon to Surinder Kumar, Constable, the accused remarked that he would test it, as sometimes the weapon misfires. He slipped the magazine into the weapon and kept the same on the table. He cocked the weapon, as a result of which, six live cartridges came out of the magazine on being taken out one by one. It was further proved, from their evidence that the accused lifted his hand from the cocking handle of the carbine (exhibit P1) and then his finger hit the trigger of the carbine, as a result of which, six rounds were fired therefrom, which hit Surinder Kumar, who was standing near the table towards whom the muzzle of the weapon was then pointed. Before lifting his hand from the cocking handle of the carbine, it was required of the accused to take reasonable precaution, to ensure that no bullet was fired in the process, hitting any person, present in the Malkhana. Had he taken a reasonable precaution, the burst of bullets would not have fired, from the carbine, hitting Surinder Kumar, resulting into his death. Criminal negligence is a gross and culpable neglect, that is to say, a failure to exercise that care and failure to take that precaution, which, having regard to the circumstances, it was the imperative duty of the individual to take. Similar principle of law, was laid down, in Balchandra and Anr. v. State of Maharashtra ". In M. Shafi Garoo's case (supra), the accused was playing golf. He played a stroke, causing the fatal injury on the right parieto-temporal region of his caddie. He was convicted under Section 304-A I.P.C. on the allegation of playing a stroke, in rash and negligent manner. The conviction of the accused was set aside, as it was not proved, from the evidence, on record, that the accused did not exercise reasonable care. It was further held that no player hits golf ball with the intention that it should go and hit his caddie. Caddie is a professional player and runs the risk of being hit by accidentally deflected ball. In Dr. Prabha G. Nair's case (supra), death of a woman, in the hospital, at the time of delivery took place. It was held that there was no presumption that the doctor was negligent. It was for the complainant, to prove, as to what was the negligent or rash act, on the part of the doctor, which resulted in the death of the patient. Ultimately, the accused was acquitted under Section 304-A. In Kishan Chand and Anrs. case (supra), it was held that to impose criminal liability under Section 304-A I.P.C., it was necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of Anrs. negligence. There is, no dispute, with the proposition of law, laid down in the aforesaid authorities. However, the facts of the aforesaid authorities, are distinguishable, from the facts of the present case. In the aforesaid cases, it was not proved that the accused was either rash or negligent in doing the act, as a result whereof the death of another person, was caused. In the instant case, as stated above, it was proved, beyond doubt, that the accused did not take reasonable precaution, before handling the carbine P-1. Had he taken necessary precaution, before handling the carbine P-1, it would have been said that he was neither rash nor negligent in doing the act. The trial Court was also right, in holding that the accused was rash or negligent, in handling the carbine, as a result whereof, six cartridges were fired therefrom, hitting Surinder Kumar, resulting into his death. Such conclusion of the trial Court, is based on the correct appreciation of evidence and law, on the point. There is, therefore, no ground to interfere with such a finding of the trial Court. The submission of the LearnedCounsel for the appellant, being without merit, must fail, and the same stands rejected.
27. No other point was urged by the counsel for the parties.
28. For the reasons recorded, hereinbefore, the instant appeal is dismissed. The judgment of conviction and the order of sentence rendered by the trial Court are upheld. The Chief Judicial Magistrate, Chandigarh, shall take necessary steps to comply with the judgment of this Court, immediately.