Research › Search › Judgment

Punjab High Court · body

2007 DIGILAW 1860 (PNJ)

Jaswinder Singh v. State Of Punjab

2007-10-16

MAHESH GROVER

body2007
Judgment 1. On 20-10-1994, at about 8.30 a. m. an incident is said to have taken place in which the appellants are alleged to have caused injuries to the complainant-Parshotam Singh with the use of fire-arms, which appellants-Jaswinder Singh and ashok Kumar were possessing. 2. In the said incident, the complainant is said to have suffered the following injuries :- 1. A lacerated wound oval shape with inverted margins, size 0.5 cm c 0.3 cm. Freshly bleeding. Depth was not probed. It was situated on the left side of the chest, 10 cm. from the midlines and 3 cm. from the left side of nipple above and medial. It was" reddish ecchimosed area of 3 cm. in diameter present around the wound. No blackening, singeing and tattooing was present. X-ray was advised of chest and also surgical opinion advised.2. Lacerated wound with irregular margins inverted, size of the wound is 0.5 cm. x 0.25 cm. Oval shaped. There was fresh bleeding present. Wound was situated at the left side of the chest 16 cm. From the midlines, 9 cm below the left nipple downward and outwards. There is reddish colour ecchimosed area of 2 cm. In diameter present around the wound. Depth was not probed. No blackening, singeing or tattooing was present. X-ray chest and surgeon opinion advised. 3. There was lacerated wound with inverted margins. Size of the wound was 0.5 cm x 0.4 cm. Oval shaped. Fresh bleeding was present in the wound. The wound was present on the right side of the chest 10 cm. above and laterally from the right nipple and 5 cm, from the anterior auxiliary line. Depth was not probed. There was reddish coloured ecchimosed area of 3 cm. diameter present around the wound. No blackening, singeing and tattooing was present. X-ray chest and surgeon opinion was advised. 4. "lacerated wound with inverted margins, size of the wound was 0.5 cm. x 0.3 cm, oval shaped present on the left forearm on posterio lateral aspect, 15 cm. above the wrist joint. It was freshly bleeding, depth was not probed. No blackening, singeing and tattooing was present. There was 3.5 cm. reddish colour ecchimosed area around the wound. Orthopaedic Surgeon and X-ray left forearm was advised. " 3. x 0.3 cm, oval shaped present on the left forearm on posterio lateral aspect, 15 cm. above the wrist joint. It was freshly bleeding, depth was not probed. No blackening, singeing and tattooing was present. There was 3.5 cm. reddish colour ecchimosed area around the wound. Orthopaedic Surgeon and X-ray left forearm was advised. " 3. The FIR was lodged by the complainant barely two to four hours after the incident pursuant to which the police investigated the matter and submitted a challan against the appellants for having committed offences punishable under Sections 307, 447 read with Sec.34 of the IPC and section 27 of the Arms Act, 1959. 4. The Additional Sessions Judge, hoshiarpur (hereinafter described as the trial Court) charge-sheeted appellants-Jaswinder Singh and Ashok Kumar under sections 307 of the IPC and 27 of the Arms act, 1959 and appellants-Narinder Singh and Kehar Singh under Sec.307 read with Sec.34 of the IPC. They pleaded not guilty and claimed trial. 5. In order to substantiate its case, the prosecution examined as many as thirteen witnesses including the doctors who medicolegally examined the complainant and subsequently treated him. 6. In their statements recorded under section 313 of the Cr. P. C. the appellants stated that they have been falsely implicated in the present case. 7. To establish the plea of defence that there was a civil case pending between the appellants and the complainant in which a dispute regarding possession of the land was involved and the findings of the Civil Court had been recorded in their favour, certified copies of Judgments Exhibits DB, DC and DD were placed on record. Besides, DW1-H. C. Sham Sunder, PW2-S. I. B. D. Rana and d. W.3-Surjit Singh, Scientific Officers (Ballistics) were also examined. 8. Vide the impugned judgment dated 10-9-1999, the trial Court found the appellants guilty of the offences alleged against them and accordingly, convicted and sentenced them as under: appellants-Jaswinder Singh and Ashok Kumar for offence punish- to undergo rigorous imprison-able under Section ment for seven years and to 307 of the I. P. C. pay fine of Rs.1000/- each and in default of payment of fine, each of them to undergo further rigorous imprisonment for three months. For offence punish- to undergo rigorous imprison-able under Section ment for three years each.27 of the Arms Act, arms Act, 1959. For offence punish- to undergo rigorous imprison-able under Section ment for three years each.27 of the Arms Act, arms Act, 1959. Appellants-Narinder Singh and Kehar Singh for offence punish- to undergo rigorous imprison-able under Sections ment for seven years and to 307/34 of the I. P. C. pay fine of Rs.1000/- each and in default of payment of fine, each of them to undergo further rigorous Imprisonment for three months on two counts. 9. All the sentences were, however, ordered to run concurrently. 10. Aforementioned conviction and sentence have been assailed in the present appeal. 11. Learned counsel for the appellants contended that in the back-drop of the fact that there was a civil litigation, the plea of false implication cannot be ruled out. He further contended that it could not be established by way of any cogent evidence on record as to who used the fire-arm causing injuries to the complainant. Besides, even if it were to be assumed that both the firearms were used, it has come in evidence that the fire-arms were used from a long distance, obliterating the chance of causing any injury to the complainant and in this view of the matter, conviction under Sec.307 of the IPC, was unsustainable and at best, it could be under Sec.324 of the IPC. To support this submission, learned counsel for the appellants placed reliance on Ved-Pal V/s. State of U. P. , 1987 (Supp) SCC 596. 12. That apart, learned counsel for the appellant contended that the evidence of p. W.6 Gurmit Singh, the alleged eye-witness, clearly indicated that overt act is attributed to appellants-Jaswinder Sigh and ashok Kumar, but in so far as appellants-Kehar Singh and Narinder Singh are concerned, there Is no role attributed to them and even if the evidence is suggestive of the fact that they were armed with gandasis, they had not participated in the commission of the offence and, therefore, their conviction and sentence cannot withstand the judicial scrutiny. 13. On the other hand, learned counsel for the State considered that all the appellants were guilty of having caused injuries to the complainant in furtherance of their common intention and the motive to do so was also clearly established which was a lurking dispute in the back-drop and attempt to take possession of the land which had been protected by the orders of the High court. 14. 14. I have heard the learned counsel for the parties and have perused the record. 15. Concededly, the ocular version has been provided by the complainant and PW.6-Gurmit Singh whose testimony has not been impeached even though they were cross-examined at some length. The participation and consequent causing of injuries by appellants-Jaswinder Singh and Ashok kumar, who were armed with.12 bore rifles has not been shaken in any manner. The corresponding injuries on the person of the complainant also vindicate the stand of the prosecution. 16. What remains to be examined is as to whether in the given circumstances of the case, the conviction under Sec.307 of the IPC against the appellants could be sustained or not and whether the conviction and sentence of two of the appellants, namely, narinder Singh and, Kehar Singh, could be sustained in view of the role attributed to them and as detailed in the testimony of P. W.6. 17. On a closer examination of the injuries suffered by the complainant, it transpires that all of them were simple in nature which is suggestive of the fact that the fire-arms had been used from a distance which caused minimum damage to the injured: It also transpires that the fire-arms were apparently used only once. P. W.6 further goes on to say that he is unable to state as to from whose gun-shot the injuries were suffered by the complainant. Indeed, in the circumstances, no eye-witness would be able to substantiate such a fact normally, in the melee that follows in an incident of this kind. However, the fact remains that according to the prosecution, only three empties were recovered and it also appears that the appellants did not make any further attempt of cause more injuries to the complainant. 18. Having regard to the aforesaid, the intention to cause homicidal death of the complainant is manifestly absent. Hence, it would not be safe to record conviction under section 307 of the IPC. For this view, I draw sustenance from the observations made in Ved Pals case (supra), which read as under :- "after hearing learned counsel for the parties, we find it rather difficult to sustain the judgment of the High Court convicting the appellant for having committed an offence punishable under Sec.307 of the indian Penal Code, 1860 when he should, on the facts and circumstances brought out, have been convicted under Sec.324. Although the learned Sessions Judge as well as the High Court were right in relying upon the testimony of P. W.2 Sobaran Singh, the victim of the assault, showing that it was the appellant and no one else who shot him with his gun, the fact remains that the injuries caused to him were of a superficial nature. The deposition of P. W.4 Dr. P. S. Yadav sh6ws that he examined Sobaran Singh on the same day and found that he had two pellet injuries, one on the right eye-brow and the other on the shoulder, both of which were of a superficial nature. His evidence does not suggest that the injuries were of such a nature as were likely to cause death. We accordingly alter the conviction of the appellant Ved Pal from under Sec.307 of the indian Penal Code to one under Sec.324. He is sentenced to rigorous imprisonment for one year. " 19. In view of the above, the conviction of appellants-Jaswinder Singh and Ashok kumar is liable to be converted from under section 307 of the IPC to one under Section 324. However, their conviction under section 27 of the Arms Act does not deserve any interference. 20. In so far as other two appellants, namely, Narinder Singh and Kehar Singh are concerned, no role has been attributed to them by the eye-witness, even though it is mentioned in the FIR. That a lalkara had been raised by Kehar Singh. Both of them were armed with gandasis. P. W.6 has not attributed any overt act to them. Therefore, in view of the simmering dispute between the parties and the fact that the testimony of P. W.6 reveals that no overt act was done by these appellants, the possibility of their false implication cannot be ruled out and they deserve acquittal. 21. At this stage, learned counsel for the appellants contended that appellants-Jaswinder Singh has already undergone 61/2 months imprisonment, whereas appellant-Ashok Kumar has suffered 51/2 months imprisonment out of the total substantive sentence awarded to them. He submitted that the occurrence is of the year 1994 and thirteen years have elapsed since then and no untoward incident has taken place involving them. In view of all this, he prayed that a lenient view may be taken in the matter of sentence to be awarded to these appellants. 22. He submitted that the occurrence is of the year 1994 and thirteen years have elapsed since then and no untoward incident has taken place involving them. In view of all this, he prayed that a lenient view may be taken in the matter of sentence to be awarded to these appellants. 22. I have thoughtfully considered the submissions of the learned counsel for the appellants made qua the sentence to be awarded to appellants-Jaswinder Singh and ashok Kumar. 23. Admittedly, the Incident is of the year 1994. There was, concededly, a dispute pertaining to the land in which the parties were embroiled for a period of time. Appellants-Jaswinder Singh and Ashok Kumar would now be well advanced in age and they are apparently not Involved in any untoward incident after the occurrence in question as has been stated by the learned counsel for the appellants. In view of all this, they deserve some leniency in the sentence. Moreover, they have already undergone 6/2 months and 51/2 months imprisonment respectively. In the result, the appeal is disposed of in the following manner :- i) The conviction and sentence of appellants-Kehar Singh and Narinder Singh are set aside and they are acquitted of the charge framed against them. ii) The conviction of appellant-Jaswinder singh and appellant-Ashok Kumar is converted from under Sec.307 of the IPC to one under Sec.324, whereas their conviction under Sec.27 of the Arms Act is maintained. iii) The sentence awarded to appellants-Jaswlnder Singh and Ashok Kumar on both the counts is reduced to that of already undergone by them subject to the condition that they deposit a sum of Rs.15,000/- each before the trial Court within a period of three months. iv) Failure to deposit the aforesaid amount within the stipulated time shall make these appellants liable to undergo further rigorous imprisonment for one year each and in that eventuality, their bail bonds shall be cancelled. v) If the amount as directed above is deposited, the trial Court shall disburse the same to the complainant as compensation after due notice to him. Order accordingly.