Fakkar Singh alias Jaila Singh vs State of Punjab

H.S. Bedi, J.—The appellant, Fakkar Singh alias Jaila Singh has been convicted and sentenced to undergo rigorous imprisonment for six years and to pay a fine of Rs.200/- and in default of payment of fine, to undergo further rigorous imprisonment for one month for an offence punishable u/s 307 of the I.P.C.

The facts giving rise to the present appeal are as under:

On 4.6.1987 at about 6.00 P.M., Mohinder Singh (PW-3) (the complainant) was talking to Boota Singh in front of his house. In the meanwhile, Pal Singh (PW-2,) the father of the complainant, was seen coming towards the house whereas accused Fakkar Singh who was coming from the opposite direction turned towards Pal Singh aforesaid, (who was at a distance of ten karams from Mohinder Singh and Boota Singh). Fakkar Singh then took out a pistol from his Chadra and fired a shot on the left of Pal Singh. On receiving the shot, Pal Singh fell on the ground. Mohinder Singh and Boota Singh raised a raula on which the accused ran away from the spot. Pal Singh was removed to the Civil Hospital, Bhagat in a tractor trolley by Mohinder Singh and Boota Singh aforesaid. Mohinder Singh also made his statement, Exh.PE, to HC Mukhtiar Singh (PW-10) and on its basis, an FIR Exh.PE/2, was registered at Police Station, Dyalpura. During the investigation, it transpired that another person Darshan Singh and his wife Deepu who had been present in their house, had also been injured by Fakkar Singh in a second firing incident shortly after the first. The accused was arrested on 16.6.1987 and a pistol, Exh.P-1, and three live cartridges Exh.P2 to Exh.P-4, were recovered from his possession. On the completion of the investigation, the accused was charged for an offence punishable u/s 307 of the Indian Penal Code and as he pleaded not guilty was brought to trial.

The prosecution in support of its case relied primarily on the evidence of PW-1 Dr. Hardev Singh, who had medico-Legally examined Pal Singh injured; PW-2 Pal Singh, the injured himself; and PW-3 Mohinder Singh, the first informant. Darshan Singh, another injured, who appeared as PW-9, was, however, declared hostile.

The prosecution case was then put to the accused and his statement recorded u/s 313 of the Code of Criminal Procedure in which he denied the allegations levelled against him. He, however, led to no evidence in defence.

The trial Court relying on the evidence of the prosecution witnesses convicted and sentenced the accused, as mentioned above.

The present appeal was filed in July, 1988 and while admitting the same on 13.7.1988, this Court ordered the release of the appellant on bail. The matter has come up for hearing before me today.

Mr. T.S. Sangha, the learned counsel appearing for the appellant, has raised only one plea during the course of the hearing. He has pointed out that merely because a gun short injury had been caused to Pal Singh (PW-1), it could not be conclusively held that the appellant was guilty of having attempted to commit murder as the intention beyond the injury had also to be seen and inferred was the sites of the injury. In support of his argument, he has relied upon a Full Bench decision of this Court reported as Sarvinder Singh alias Chhinda and another v. The State, 1977 C.L.R. (P&H.) 77.

As against this, Mr. S.S. Randhawa, the learned Deputy Advocate General, Punjab has argued that from the fact that the accused had come to the place of incident duly armed with a pistol and also bore some animosity towards Pal Singh, it could be safely inferred that his intention was to commit murder and as such, an offence u/s 307 of the Code was clearly spelt out.

1 have considered the arguments advanced by the learned counsel for the parties and have gone through the evidence and the judgment of the Full Bench in Sarinder Singh''s case (supra). In this case, the Full Bench observed (in para No. 13) that the intention or knowledge could not be measured by the consequences alone as the surrounding circumstance were equally pertinent. In this background, it was held that:-

"If an act is done with the intention or knowledge requisite for the commission of the offence of murder, and, if there are no circumstances introducing a defence to a charge of murder either by way of a general or a special exception, the offence would be attempt to murder, if the act does not result in death, whatever be the reason for the act not resulting in death, whatever be the nature of the inquiries, and even if no injuries are caused. The requisite intention or knowledge is not to be excluded from the mere fact that death is not the consequence of the act. Such an act may not result in death for a variety of reasons, such as, the ineffectiveness of the weapon, the ineffectiveness of the assailant, the movement of the victim, the intervention of a sudden obstruction etc. It is true that the mere act of firing a gun need not necessarily lead to the inference of the requisite intention or knowledge necessary to make the offence one of murder. A person may fire a gun in the air intending to frighten someone, a person may aim and shoot at someone''s legs intending to cause injury to the leg, a person may discharge a gun from a distance of 300 yards knowing that the maximum range of the gun is 30 yards. In such or similar situation, one may not draw the inference of the requisite intention or knowledge for the commission of the offence of murder. But, if a person shoots at another at sufficiently close range or if a person fires a loaded cannon at a crowd of persons, the requisite intention or knowledge can be readily inferred. Such an intention of knowledge cannot be refused to be inferred merely because the act does not result in the death of any one either because the weapon is defective or because the powder is wet or the pellets too small, or because only a few pellets strike the victim, the aim of the assailants being poor, or because the victim is so lucky that no vital portion of the body is injured or expert medical attention available on the spot saves his life and so on....."

If the above observations are applied to the facts of the present case, it is clear that an offence u/s 307 of the Indian Penal Code is not made out in the present circumstance.

The injuries found on the person of Pal Singh are reproduced below:-

"there were two lacerated wounds over the left calf situated antero medically and posteriorly. The antero medial was lcm x 1 m with inverted margins. Bleeding was fresh over the anterio medical aspect of left leg 10 cms below the knee joint. The posterior wound was 1.5 cm x 1.5 cm with averted margin. Fresh bleeding was present, 16 cms below the knee joint. Bleeding was profused. The injury was dimple in nature and its duration was within six hours. The kind of weapon used was fire arm. The doctor proved his report, Exh.P. A."

From the perusal of the above, it is obvious that the injuries were on the lower part of the leg well below prosecution story that the motive for the offence was that a pistol had earlier been recovered from Fakkar Singh and he suspected that the information with regard to the same had been conveyed to the police by Pal Singh. It is, therefore, obvious that the appellant had come to the place of incident duly armed in order to" avenge his insult. In this situation, had his intention been to cause the death of Pal Singh, he could very well have done so by firing a short into the chest but he had chosen to fire the shot on his leg well below the knee. The observations of the Full Bench in Sarvinder Singh''s case (supra) are thus fully applicable to the facts of the present case.

It is the admitted position that from the injuries if looked at independently, a case u/s 324 of the Indian Penal Code only would be made out. To my mind, it is this offence of which the appellant ought to have been convicted.

Mr. S.S. Randhawa has produced on record a certificate issued by the Superintendent, Central Jail, Bhatinda certifying to the effect that the appellant has undergone one year and one month of the sentence. The certificate is taken on record.

In this view of the matter, this appeal is allowed, the appellant is acquitted of the charge u/s 307 of the Code but convicted for an offence punishable u/s 324 of the Indian Penal Code and the sentenced imposed is reduced to that already undergone by him.