CIVIL APPEAL 212 of 2000 on 25 January 2000

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH

Date of decision: November 1, 2011(1)Crl. Appeal No. 111 SB of 2000

Rajvinder Singh State of Haryana

...AppellantVersus ...Respondent

(2) Crl. Revision No. 212 of 2000

Bhagwant Singh ...PetitionerVersus Rajwinder Singh and another ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH

Present: Mr. Sudhir Sharma, Advocate, for for the appellant.

Mr. Sidharath Swaroop, DAG, Haryana.Mr. Arvind Thakur, Advocate, for the complainant.

GURDEV SINGH, J. (Oral)

Vide this order, I propose to decide the appeal preferred byRajvinder Singh, appellant/accused, against his conviction and sentenceunder Section 307 IPC and the revision filed by Bhagwant Singh,petitioner/complainant, for enhancing the sentence imposed upon theaccused. He was sentenced to undergo rigorous imprisonment for a periodof 5 years and to pay a fine of Rs. 1,000/- and in default thereof to furtherundergo simple imprisonment for a period of 20 days, against maximum

prescribed sentence of imprisonment of life, vide judgment and order dated25.1.2000 passed by the Additional Sessions Judge, Sirsa.

The facts, in brief, are that about three years before the presentoccurrence, the accused had abused Angrej Kaur, sister of Bhagwant Singhinjured/complainant (PW-2), for which the accused had asked for pardonfrom their family members. On that account, he was nursing a grudgeagainst the complainant party. On 7.2.1999, the father and the brother ofthe complainant, had gone to Malout for purchasing a tractor and he, alongwith his agricultural servant, Gurdeep Singh (PW-3) was working in thefield. At about 12.30 p.m. his mother Gurdial Kaur came there with theirmeals and after they had taken the same, she started back and had hardlycovered a distance of about 15-20 paces, when the accused taking benefit ofthe absence of his father and brother came to that place, while armed with alicenced double barrel gun. After raising abuses, he immediately fired shotfrom that gun, the pellets of which hit him on different parts of his body.Those pellets also hit Gurdeep Singh. At that time his paternal uncle BantaSingh was working in the adjoining field, who raised a lalkara and theaccused fired two other shots towards them while they were running away,but the pellets thereof did not hit any one of them. Gurdial Kaur savedherself by lying on the ground. The injured were being removed to thehospital in the jeep, when Surinder Singh, Inspector/SHO (PW-7) met themnear Bhatinda chowk. At that place, the complainant made his statementEx. PG about this occurrence before the Inspector, who after making hisendorsement Ex. PG/1 upon the same, sent that to the police station and onthe basis thereof formal FIR Ex. PG/2 was recorded against the accused forthe offences under Section 307 IPC and Section 27 of the Arms Act, 1959.

The complainant and Gurdeep Singh were admitted in General Hospital,Sirsa, where they were medically examined by Dr. G.S. Somany (PW-1),who found 9 fire arm injuries on the person of the complainant and twoinjuries on the person of Gurdeep Singh, which were detailed in the MLreports Ex. PA/1 and Ex. PB respectively. The Inspector went to the placeof occurrence and after inspecting the same prepared rough site plan Ex. PKwith correct marginal notes. He called Ajmer Singh, Photographer (PW-5)to the spot, who took photographs Exs. P.4 and P.5. Two spent cartridgesExs. P8 and P9 were recovered from the spot, which were converted into aparcel and the same was sealed by the Inspector with his seal 'SS' and wastaken into possession vide a recovery memo. The wearing apparels foundon the person of the complainant were taken into possession by the doctorand were converted into a sealed parcel, which was handed over to thepolice. On 7.2.1999, the Inspector filed an application Ex. PC before thedoctor, who declared the injuries on the person of the injured as simple. On9.2.1999, the accused was arrested in front of his house. From hispossession double barrel gun Ex. P.10, licence Ex. P.15 and four livecartridges Exs. P.11 to P.14 were recovered. The gun and the cartridgeswere converted into separate parcels and were sealed by the Inspector withhis seal 'SS'. Those sealed parcels and the licence were taken intopossession, vide memo Ex. PO. The map on scale Ex. PJ was got preparedfrom Baljinder Singh, Revenue Patwari (PW-6). The sealed parcelscontaining gun and empty cartridges were sent to FSL and were delivered atthat place with seal intact. After examination, it was reported by the DeputyDirector of that Laboratory, vide his report Ex. PU, that the gun's firemechanism was in working order and that empty cartridges were fired from

the left and right barrel of that gun. Record regarding irrigation of the landof the complainant from the canal was taken into possession during theinvestigation and after completion thereof, challan was put in before theSDJM, who committed the same to the Court of Session, as the offenceunder Section 307 IPC as exclusively triable by that Court.

On appearance of the accused, in the court, copies of all thedocuments sent alongwith the police report and relied upon by theprosecution were supplied to him, as per the mandatory requirements ofSection 207 Cr.P.C.. From the perusal of those documents and afterhearing PP for the State and the accused in person, the learned SessionsJudge found sufficient grounds for presuming that the accused committedoffence punishable under Section 307 IPC. He was charged accordingly, towhich he pleaded not guilty and claimed trial.

To bring home the guilt of the accused, the prosecutionexamined Dr. G.S. Somany (PW-1), Bhagwant Singh, complainant (PW-2),Gurdeep Singh, injured (PW-3), Balwant Singh, Nehri Patwari (PW-4),Ajmer Singh, Photographer (PW-5), Baljinder Singh, Revenue Patwari(PW-6), Surender Singh, Inspector (PW-7), Subhash Chander, ASI (PW-8),Dharambir Singh, ASI (PW-9), Dharam Pal C. (PW-10), Ashok Kumar, C.(PW-11), Malkiat Singh (PW-12) and Dr. J.K. Bishnoi (PW-13).

After the close of the prosecution evidence, the accused wasexamined and his statement was recorded under Section 313 of the Cr.P.C.

All the incriminating circumstances appearing against him in theprosecution evidence were put to him in order to enable him to explain thesame. He denied all those circumstances and pleaded his innocence andfalse implication, on account of party faction in the village and suspicion.

He was called upon to enter on his defence and he tendered in his defenceevidence copies of the Nehri Girdawari and report under Section 173 ofCr.P.C. Exs. DB and DC respectively.

After going through the evidence, so produced and hearing PPfor the State and the learned defence counsel for the accused, the trial courtconvicted and sentenced the accused, as aforesaid.

I have heard learned counsel for the parties.

Learned counsel for the appellant/accused did not challenge thefindings recorded by the learned trial court, upon which conviction has beenbased. However, he submitted that from the facts proved on the record bythe prosecution, it cannot be said that the accused committed offencepunishable under Section 307 IPC, as the injuries on the person of both theinjured were found to be simple and, as per the prosecution version, the gunshots were fired from a distance of 14 karams. The firing of gun shots fromsuch a distance makes it clear that it was never the intention of the accusedto cause death of any of the injured and his only intention was to scare them.At the most, it can be said that the accused committed offence under Section323 IPC. He has already undergone imprisonment for a period of about 10months and that is a sufficient punishment for the offence under Section 323IPC. He prayed that the conviction be converted from Section 307 IPC toSection 323 IPC and he be sentenced to imprisonment already undergone byhim.

On the other hand, it has been submitted by the learned Statecounsel that the intention of the accused is very much apparent from his act.He was carrying a double barrel gun and the shot was fired from both thebarrels and pellets thereof hit all over the person of Bhagwant Singh and on

the face of Gurdeep Singh. The second attempt was made by the accusedwhen he fired two other shots, while the injured were running away fromthe spot. Merely because the injuries were found to be simple in nature, itcannot be held that no offence under Section 307 IPC is proved against theaccused.

It has been submitted by the learned counsel for thecomplainant that the maximum sentence prescribed for the offence underSection 307 IPC, where the injury has also resulted is imprisonment, for lifeand the sentence of imprisonment of 5 years so imposed upon the accused ison the lower side. He prayed for enhancement of that sentence.

The following facts stand proved from the evidence producedby the prosecution and which have not been challenged at the time of thearguments:-

1. The accused, while armed with a double barrel gun, cameto the fields of the complainant, where he was workingwith his servant Gurdeep Singh.to the fields of the complainant, where he was workingwith his servant Gurdeep Singh.

2. After hurling abuses, the accused fired from both thebarrels of the gun and the pellets thereof hit thecomplainant all over his body and face of his servantGurdeep Singh.barrels of the gun and the pellets thereof hit thecomplainant all over his body and face of his servantGurdeep Singh.

3. Gurdial Kaur, who was also present at the spot, savedherself by lying on the ground. herself by lying on the ground.

4. When both the injured started running from the spot, theaccused fired two shots from his gun by aiming the sameat them but the pellets did not hit them. accused fired two shots from his gun by aiming the sameat them but the pellets did not hit them.

From these facts, the intention of the accused can easily be

Arguments

inferred. His intention was to kill the complainant as he fired from the gunby aiming the same at him and the pellets which scattered, hit him all overhis body. Only on the ground, that the shot was fired from the distance of 14karams, it cannot be inferred that the accused never intended to kill thecomplainant and his intention was only to scare him. If his intention wasonly to scare him, then why he again fired at both the injured, while theywere running away from the spot.

Learned counsel for the appellant has tried to place reliance onthe Division Bench judgment of this Court reported in 1991 (3) R.C.R.(Criminal) 422 (State of Punjab versus Parveen Kumari and others), insupport of the contentions raised by him. The facts of that case werealtogether different. Only single shot was fired resulting in simple injury onthe non-vital part of the victim and there was no evidence to establish withcertainty that the accused had the intention to cause the death. The presentis the case of firing of more than one shot. It is well settled that in order tofind out whether the offence falls under Section 307 IPC or not, it is not theinjury, which is inflicted by the act of the accused, which is deciding factorbut it is the intention or the knowledge. It was held by Hon'ble the SupremeCourt in State of Madhya Pradesh Vs. Imrat 2009 (1) Criminal CourtCases 107 (S.C.) that for conviction under Section 307 IPC, it is sufficient ifthere is present an intent coupled with some overt act in execution thereof.It is not essential that bodily injury capable of causing death should havebeen inflicted. The accused cannot be acquitted merely because the injuriesinflicted on the victim were in the nature of a simple hurt. In Akloo AhirVs. State of Bihar 2010 (2) Apex Court Judgments 749, a shot was firedbut missed its target, even then conviction under Section 307 IPC was

maintained, keeping in view that the intention of the accused was to causedeath of the victim.

It is very much clear from the facts proved by the prosecutionthat the accused intended to cause the death of the complainant and his actclearly falls within the four corners of Section 307 IPC. The trial court didnot commit any illegality, while convicting the accused for that offence.

It cannot be said that the sentence so imposed upon the accusedis on the higher side or the lower side. A balance view has been taken bythe trial court, while imposing the sentence. I do not find any ground toenhance or reduce the same. There is no merit in the appeal or the revisionand both are hereby dismissed.

This order be certified to the trial court for necessarycompliance.

Records of the trial court be returned.

November 1, 2011prem

(GURDEV SINGH ) JUDGE