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2003 DIGILAW 1004 (PNJ)

Hari Ram v. State of Haryana

2003-07-23

S.S.SARON

body2003
JUDGMENT S.S. Saron, J. - This appeal has been filed by the appellant-Hari Ram against the judgment and order dated 26.10.1990 passed by the learned Additional Sessions Judge, Narnaul, whereby the appellant has been convicted for the offence under Section 307 of the Indian Penal Code (Indian Penal Code - for short) and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 3000/- for the offence under Section 307 Indian Penal Code Besides, he has been convicted for a period of three years and ordered to pay a fine of Rs. 2000/- for the offence under Section 27 of the Arms Act. However, both the sentences have been ordered to run concurrently. 2. The facts leading the case are that case FIR No. 46 dated 14.4.1998 was registered at Police Station Bawal district Mahendergarh for the offences under Section 307 Indian Penal Code and 27 of the Arms Act, on the statement of constable Kailash Narain, who was posted as Naib Moharir at Police Station Bawal. As per the statement of the complainant, he on 14.4.1988 at about 6 p.m. vide report No. 21 had written regarding roll call of employees. Hari Ram-appellant vide report No. 18 had taken charge from Head Constable Amar Singh, who was earlier on duty. Rifle No. 23 with fifty cartridges and rifle chain were also taken. Hari Ram was to give duty from 6 p.m. to 9 p.m. and he had signed the aforesaid report. At about 8.45 p.m. ASI Ramphal, Head Constable Amar Singh No. 440, Constable Dewan Kumar Singh (alias Dewan Chand) No. 740 and Constable Hukam Singh No. 73 were sitting on two separate cots in front of Barracks of the employees. Hari Ram-appellant was standing at a distance of 5/7 paces from the Peepal tree. Kailash Narain MHC came out from his office and went to take meals. Hari Ram started firing on the employees who were sitting i.e. Ramphal ASI, Hukam Singh No. 73, Dewan Singh Constable No. 740 and Amar Singh Head Constable No. 440. Kailash Narain called out at Hari Ram as to what was he doing and in the meanwhile, Dewan Singh Constable No. 440 made noise Mar Gaya. Gokal Chand Constable No. 82 came running from the quarter side. Kailash Narain called out at Hari Ram as to what was he doing and in the meanwhile, Dewan Singh Constable No. 440 made noise Mar Gaya. Gokal Chand Constable No. 82 came running from the quarter side. Constable Hari Ram-appellant tried to run away alongwith the rifle from the rear gate of Police Station and then Kailash Narain complainant and Constable Gokal Chand tried to catch hold of him but he managed to run away with his ammunition and weapon. In the meantime, ASI Karan Singh of Police Station Bawal came and Kailash Narain complainant narrated the occurrence to him. He saw that Dewan Singh (alias Diwan Chand) had received bullet injuries on his right leg and left thigh. The injured was shifted to Civil Hospital, Rewari for treatment. It was stated that Hari Ram-appellant fired with the intention to kill the employees and constable Dewan Singh alias Dewan Chand received injuries. He, however, did not know the cause of occurrence. It is on the basis of the said statement the FIR for the offence under Section 307 Indian Penal Code and Section 27 of the Arms Act was registered and Special Report sent to the Illaqa Magistrate and higher Officers. 3. After conducting investigation, the police filed its challan. Learned Judicial Magistrate Ist Class, Rewari, vide his order dated 23.8.1988 committed the case to the Court of Session. 4. The learned Additional Sessions Judge, Narnaul to whom the case was entrusted vide order dated 7.11.1988, framed charge against the appellant on the allegations of the prosecution that the accused being a police constable, while performing duty of Santary at Police Station Bawal was given a rifle with which he caused injuries to constable Dewan Singh (alias Dewan Chand) by firing four shots with such intention or knowledge that by that act, he had caused the death of above said constable Dewan Singh (alias Dewan Chand). Accordingly, charge under Section 307 Indian Penal Code and under Section 27 of the Arms Act was framed. Thereafter, the Public Prosecutor filed an application that in addition to charge framed under Section 307 Indian Penal Code and Section 27 of the Arms Act, a charge be also framed against the appellant for attempting to murder ASI Ramphal. The accused filed his reply to the same. Thereafter, the Public Prosecutor filed an application that in addition to charge framed under Section 307 Indian Penal Code and Section 27 of the Arms Act, a charge be also framed against the appellant for attempting to murder ASI Ramphal. The accused filed his reply to the same. The learned Additional Sessions Judge, vide his order dated 5.12.1988 observed that the statement of Ramphal ASI recorded under Section 161 Criminal Procedure Code showed that accused Hari Ram had approached him in some case but he did not oblige him and it was due to this that he fired at him, but constable Dewan Singh (alias Dewan Chand), who was sitting by his side was injured. Accordingly, a charge under Section 307 Indian Penal Code was also framed for attempt to murder ASI Ramphal. 5. After completion of the trial, the learned Additional Sessions Judge, vide his impugned order dated 26.10.1990 convicted the appellant for the offence attributed to him, as aforesaid. The appellant has assailed the said order by way of the present appeal. 6. I have heard Shri K.S. Ahluwalia, Advocate for the appellant and Shri S.S. Brar, Deputy Advocate General, Haryana, for the State and with their assistance gone through the records of the case. 7. After arguing the case for sometime, learned counsel for the appellant confined his arguments only to the nature of the offence and stated that an offence under Section 307 Indian Penal Code is not made out. It is contended on the mere observations of the Doctor, who examined the injured and opined that the injuries were dangerous to life, it cannot be said that a case under Section 307 Indian Penal Code is made out against the appellant. In support of his contention, he has relied upon a Division Bench judgement of this Court in Atma Singh v. The State of Punjab, 1982(2) C.L.R. 496 and a judgment of the Honble Supreme Court in Sital Singh v. State of Punjab, 1983 CAR 291. 8. On the other hand, learned counsel for the State has contended that the appellant, who was a constable had committed a serious offence and the prosecution had proved its case in all respects. 8. On the other hand, learned counsel for the State has contended that the appellant, who was a constable had committed a serious offence and the prosecution had proved its case in all respects. Besides, the contention of the learned counsel for the appellant that the offence under Section 307 Indian Penal Code is not made out, is without any basis inasmuch as there was clear intention on the part of the appellant to murder ASI Ramphal, who did not oblige him in a matter for which the appellant had approached him. 9. In order to appreciate the contentions of the parties, it may be noticed that Dewan Singh (alias Dewan Chand) was examined by Dr. R.S. Yadav, Medical Officer, Civil Hospital, Rewari (PW-1) and he found the following injuries on his person :- 1. There was a lacerated, ragged wound on medial aspect of upper part of right thigh 20 cm. x 8 cms, music deep, with regard skin tags, sub-cutaneous tissues and muscles. Fresh blood was oozing. 2. There was a round punctured wound on the middle of left buttock with lacerated margins, inverted and with black margins. Dark blood was oozing from it. It was of 1.5 cm. diameter and depth was not probed. 3. There was a lacerated wound in the perineum 12 cms. x 2 cms. freshly bleeding, muscle deep and also involving anus, depth not probed. 4. There was a punctured, lacerated wound of 1 cm. diameter with black margins on the middle of back of right calf. Fresh blood was oozing. Depth was not probed. 10. The injuries were observed to be less than six hours duration and caused by fire. In his cross-examination, Dr. R.S. Yadav (PW1) stated that x-rays were taken at Medical College Rohtak, but were not shown to him and that the extent of injuries due to fire arm could not be ascertained by external examination only. He also stated that he cannot rule out the possibility of this injury (sic. - these injuries) being simple in nature. He also stated that he had no studied any literature about fire-arm. Dr. K.K. Seth, Registrar, Medical College and Hospital, Department of Surgery, Rohtak (PW-3) stated that the patient Dewan Chand was admitted at Medical College, Rohtak, on 15.4.1988. He also stated that he cannot rule out the possibility of this injury (sic. - these injuries) being simple in nature. He also stated that he had no studied any literature about fire-arm. Dr. K.K. Seth, Registrar, Medical College and Hospital, Department of Surgery, Rohtak (PW-3) stated that the patient Dewan Chand was admitted at Medical College, Rohtak, on 15.4.1988. He stated that the injuries on the person of Dewan Chand could be dangerous to life because of associated complications which could have developed without medical aid. In his cross-examination, he stated that the injuries on the person of Dewan Chand had not proved dangerous due to medical aid but the same could have proved dangerous. 11. From the nature of injuries, and the intention of the appellant it is to be seen whether the offence under Section 307 Indian Penal Code is made out. In Atma Singhs case (supra), a Division Bench of this Court held that when the Doctor is required to carry out medico-legal examination of the injury suffered in criminal assault, he is required to examine the injury from two stand-points i.e. (1) for the purpose of opining the kind of weapon used to inflict the injury in question and (2ndly) to form an opinion regarding the degree of seriousness of the injury in question. The Indian Penal Code recognises from stand point of seriousness only four types of injuries (1) simple injuries; (2) grievous; (3) injuries of the kind inflicted with intent to commit murder described in clause Firstly and 2ndly of section 300 Indian Penal Code (4) injury sufficient to cause death in the ordinary course of nature envisaged by clause Thirdly of Section 300 Indian Penal Code It was observed that there was no provision in the Indian Penal Code which envisages or refers to an injury described as "dangerous to life". The medico-legal examination of an injured person is intended to enable the Investigating Agency and the Court to find out the nature of the offence and, therefore, the doctor examining an injured person has to opine that the injury in question is one or the other of the type recognised in the Indian Penal Code for the purposes of a given offence. When a doctor describes an injury as dangerous to life, one has to see what had the doctor intended to convey thereby. When a doctor describes an injury as dangerous to life, one has to see what had the doctor intended to convey thereby. Is one to hold that since injury has not been described by the doctor as one which endangered life, so the concerned injury cannot be held to be grievous on the specious ground that an injury described as dangerous to life is not as serious an injury, which endangers life. The following observations of the Division Bench are apposite :- 11. It appears that the doctors who had been conducting the medico-legal examination have been using the term dangerous to life as synonymous with an injury which endangers life. Even the Courts at times have considered an injury described as dangerous to life as an injury envisaged in clause Eighthly of Section 320 of the Indian Penal Code. In this regard reference can be made to Muhammad Rafi v. Emperor, AIR 1930 Lahore 305. In that case the injury was on the right side of the neck about 2-1/2" x 3/4" in dimension inflicted with a sharp edged weapon. The doctor had, in fact, in that case deposed that there was every possibility of the deceased surviving but for the wound becoming septic apparently as a result of it being pressed with hands and bandaged with dirty cloth in the initial stages before the deceased was taken to the hospital. The Court held that though a finding that the appellant knew that his act was likely to cause death, was not justified but at the same time, a wound on the neck, must at least be considered to be dangerous to life within the meaning of Clause 8 Section 320 Indian Penal Code, and therefore, grievous. 12. Palekar, J, too in Jai Narain Mishra & Others v. State of Bihar, 1972 C.A.R. 19 (S.C.) held, a penetrating wound 1-1/2" x 1/2" x chest wall deep on the right side of the chest caused with a bhala and described as dangerous to life as grievous injury and in the later part of paragraph 11 called this injury as one endangering life. 13. The expression dangerous is an adjective and the expression endanger is verb. 13. The expression dangerous is an adjective and the expression endanger is verb. An injury which can put life in immediate danger of death would be an injury which can be termed as dangerous to life and, therefore, when a doctor describes an injury as dangerous to life, he means an injury which endangers life in terms of clause 8 of Section 320, Indian Penal Code, for, it describes the injury dangerous to life only for the purpose of the said clause. He instead of using the expression that this was an injury which endangered life, described it that the injury was dangerous to life, meaning both the time the same thing." 12. In the case of Sital Singh (Supra), the Honble Supreme Court in a case of gun shot hitting the deceased on the upper thigh without pre-meditation was held to constitute an offence under Section 304 Part-I and not under Section 302 Indian Penal Code The medical evidence in the said case indicated that the gun shot hit the deceased on the upper right thigh. The High Court had recorded the finding that there was no pre-meditation. On the material placed, the Honble Supreme Court was of the view that it would be just and proper to vacate the conviction under Section 302 and in lieu thereof convict the appellant in the said case under Section 304 Part I, Indian Penal Code 13. In the case in hand, as already noticed above, the injuries on the person of Dewan Singh are not on any vital part of the body. They are on the upper part of thigh, middle of left buttock in the perineum and on the middle of back of right calf. There is no injury attributed to ASI Ramphal. Therefore, keeping in view the observations of the Division Bench of this Court in Atma Singhs case (supra), it may be noticed that merely because the injury has been described as dangerous to life would not ipso facto make out an offence under Section 307 Indian Penal Code This is to be determined from the facts and circumstances of each case. The present is not a case where there was pre- mediation on the part of the appellant to commit the offence. The motive for the crime, it all, there was one, was to cause injuries to Ramphal ASI, who admittedly did not receive any injury. The present is not a case where there was pre- mediation on the part of the appellant to commit the offence. The motive for the crime, it all, there was one, was to cause injuries to Ramphal ASI, who admittedly did not receive any injury. Section 320 Indian Penal Code describes grievous hurt as follows :- "Grievous hurt. - The following kinds of hurt only are designed as "grievous" :- xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx Eighthly - Any hurt which endangerous life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits." 13A. A perusal of the above shows that any injury which endangerous life is also a grievous injury. 14. In the above circumstances, it has to be seen whether offence under Section 307 Indian Penal Code is made out on the mere report of the Doctor who opined the injuries as; "could be dangerous to life because of associated complications which could have develop (sic. - developed) without medical aid." Besides, the intention of the accused is also to be seen as to whether an offence under Section 307 Indian Penal Code is made out. 15. In order to appreciate these circumstances, the provisions of Section 307 Indian Penal Code may be adverted to, which read as under :- "Attempt to murder - Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempt by life convicts - When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death." 16. The perusal of the above shows that the important thing to be borne in mind in determining the question whether an offence under Section 307 Indian Penal Code is made out or not, is the intention or knowledge. The perusal of the above shows that the important thing to be borne in mind in determining the question whether an offence under Section 307 Indian Penal Code is made out or not, is the intention or knowledge. Besides, the intention or knowledge of the accused must be such as is necessary to constitute murder. Section 307 Indian Penal Code is in two parts. The first part envisages such intention or knowledge and such circumstances that the act done by the offender would cause death and he would be guilty of murder. This would constitute an offence of attempt to murder and is punishable for a term which may extend to ten years and also fine. The second part relates to causing of hurt by such act i.e. having intention or knowledge and under such circumstances that by such an act death would be caused and the offender would be guilty of murder. This also constitutes an offence of attempt to murder. In this case, however, the punishment is upto imprisonment for life or to such extent as mentioned earlier. The substance of the offence is the intention or knowledge that the act done is such that death would be caused and the offender would be guilty of murder but death actually is not caused. This would amount to an offence of attempt to murder under Section 307 of the Indian Penal Code 17. The Honble Supreme Court in Sarju Prasad v. State of Bihar, AIR 1965 Supreme Court 843, held that to attract the provisions of Section 307 Indian Penal Code, it is necessary for the prosecution to establish that intention of the accused in causing the injury was of any of the three kinds referred to in Section 300 Indian Penal Code and unless the prosecution discharges the burden, the offence under Section 307 Indian Penal Code cannot possibly be brought home. In the said case, the accused had caused an injury with the knife in a vital region but no vital organ of the injured was cut as a result of injury. However, he was convicted by the Court below for an offence under Section 307 Indian Penal Code The Honble Supreme Court held that the state of mind has to be deduced from the surrounding circumstances. Besides also the existence of a motive to cause death would be a relevant consideration. However, he was convicted by the Court below for an offence under Section 307 Indian Penal Code The Honble Supreme Court held that the state of mind has to be deduced from the surrounding circumstances. Besides also the existence of a motive to cause death would be a relevant consideration. Taking the totality of the circumstances, it was held that there was no intention of murder or to cause any injury which may result in death could be inferred. Accordingly, it was held that the prosecution had not established that the offence committed fell squarely under Section 307 Indian Penal Code and that in its opinion, it amounted to an offence under Section 324 of the Indian Penal Code In the case of Kundan Singh v. State of Punjab, AIR 1982 Supreme Court Page 62, the victim received simple injuries from gun shots fired by the accused. The injured were in the courtyard of their house, when the accused fired the gun shots. It was held that the accused could not have intended to injure them. The conviction of the appellant for the offence under section 307 Indian Penal Code was held to be not justified and it was altered to that of an offence under Section 324 of the Indian Penal Code since the victim received simple injuries. 18. Coming to the case in hand, as already noticed above, the appellant fired gun shot on his co-employees whiles they were sitting on a cot at the premises of police station Bawal. There was no intention to cause injuries to Dewan Singh alias Dewan Chand. The motive, if at all, there was one was to cause hurt to Ramphal ASI. In terms of the first part of Section 307 Indian Penal Code the intention or knowledge and such circumstances that the act done by the offender would cause death would be sufficient to make out an offence under Section 307 Indian Penal Code even though actual hurt is not caused, however, where injuries are suffered it becomes one of the relevant factor to be taken into account as to whether there indeed was an intention to cause death. Besides, from the evidence on record it is not a case where it can be shown that the appellant had pre-meditation or even mens rea to commit the crime. Besides, from the evidence on record it is not a case where it can be shown that the appellant had pre-meditation or even mens rea to commit the crime. Therefore, it is cannot be said that there was an intention or knowledge that the act done by the appellant would cause death and he would be guilty of committing murder. It is also not a case where the appellant can be said to have had an intention or knowledge that by causing hurt by his act death would be caused and he would be guilty of committing murder. The injuries on the person of Dewan Singh are not specifically stated to be grievous in nature. Dr. K.K. Seth (PW-3) has stated that the injury on the person of Dewan Singh could be dangerous to life because of associated complications which could have developed without medical aid. Therefore, in the circumstances, it cannot be said to be a case of grievous hurt even within the meaning of Section 320 read with clause eigthly of the Indian Penal Code The act of the appellant at the most can be said to be one which can be said to be an attempt to commit culpable homicide within the meaning of Section 308 Indian Penal Code Section 308 Indian Penal Code envisages that whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with prisonment of either description for a term which may extend to three years, or with fine or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with both. 19. Keeping in view the above circumstances, the order convicting and sentencing the appellant under Section 307 Indian Penal Code is set aside and the same is modified and converted to an offence under Section 308 Indian Penal Code Accordingly the appellant is convicted for having committed under Section 308 Indian Penal Code Insofar as the conviction of the conviction of the appellant under Section 27 of the Arms Act is concerned, the same is maintained. 20. 20. Insofar as the sentence to be imposed is concerned, the learned counsel appearing for the appellant has stated that the appellant has undergone the travail of prosecution and trial for about 15 years besides he was working as a constable and has also lost his job after the incident. The appellant has undergone imprisonment for about nine and half months. Taking into consideration the trial period and period after conviction, it may be noticed that the appellant was arrested in the case on 15.4.1988. He was granted bail by this Court on 19.12.1988 and was arrested on 26.10.1990 and was granted bail on 30.11.1990. Therefore, in this situation, it would not be now proper to send him to custody and it would be more appropriate to reduce the sentence, in the peculiar facts and circumstance of the case, to that already undergone. However, in terms of the judgment of the Honble Supreme Court in Hari Kishan & State of Haryana v. Sukhbir Singh and others, AIR 1988 Supreme Court 2127, the injured should be compensated monetarily. In Hari Kishans case (supra), the Honble Supreme Court held that in terms of Section 357(3) Criminal Procedure Code the Court is empowered to award compensation to victims while passing judgment of conviction. It was observed that in addition to conviction, the Court may order the accused to pay some amount by way of compensation to the victim, who has suffered by the action of the accused. This power of the Court to award compensation has been held as not ancillary to other sentences but is in additional thereto and is intended to do something to re-assure the victim that he is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes and is indeed a step forward in our criminal justice system. The Apex Court recommended to all Courts to exercise this power liberally so as to meet the ends of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes and is indeed a step forward in our criminal justice system. The Apex Court recommended to all Courts to exercise this power liberally so as to meet the ends of justice. Section 357(3) Criminal Procedure Code reads as under :- "When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced." 21. The perusal of the above shows that when Court imposed a sentence of which fine does not form a part, the Court may when passing the judgment, order the accused persons to pay by way of compensation to the person who has suffered any loss or injury. In this view of the matter, the order imposing the sentences of fine is set aside as to award the compensation under Section 357(3) the fine is not to form part of the sentence. However, the amount of fine of Rs. 3000/- ordered to be paid under Section 307 Indian Penal Code and Rs. 2000/- for the offence under section 27 of the Arms Act is to be treated as compensation payable to the victim Dewan Singh alias Dewan Chand. Apart from the said amounts, the appellant is directed to pay a sum of Rs. 5,000/- more as compensation to Dewan Singh alias Dewan Chand, the victim in the case. The appellant shall deposit a sum of Rs. 10,000/- in the Court of Learned Chief Judicial Magistrate, Narnaul, at Mahendergarh within three months from today and the learned Chief Judicial Magistrate shall after issuing notice disburse the amount to the injured Dewan Singh alias Dewan Chand. If the amount of fine of Rs. 5,000/- has already been deposited it be adjusted accordingly. With this modification, the appeal stands disposed of. Order accordingly.