Jaspal vs State of Punjab

K.S. Kumaran, J.—Appellant Jaspal who faced trial before the Addl. Sessions Judge Jalandhar in Sessions Case No. 30 of 1993 u/s 302, Indian Penal Code, was accordingly convicted and sentenced to undergo rigorous imprisonment for life, to pay a fine of Rs. 1,000/- and in default to further undergo rigorous imprisonment for '' three years. The appellant has come forward in appeal.

The case of the prosecution is that Dalbir Kumar (P. W. 1), the complainant, was in charge of the guard of treasury and Malkhana in the premises of Old Courts Jalandar. During the night intervening 5th and 6th October 1992, Romesh Chander (deceased) was on sentry duty of the Malkhana from 9.00 p.m. to 12 midnight while, the appellant/accused Jaspal was on sentry duty of the treasury. During the preceding evening, accused Jaspal and Romesh Chander (deceased) had an altercation which was pacified by complainant Dalbir Kumar and Gurmit Singh. Gurmit Singh and the complainant Dalbir Kumar were sleeping out side in the courtyard near the Guard Room. At about 11,00 p.m. complainant Dalbir Kumar heard the accused Jaspal abusing Romesh Chander (deceased). Dalbir Kumar and Gurmit Singh got up and saw Jaspal shooting Romesh Chander, who was sitting on a chair, with his 303 bore rifle which hit on the abdomen of Romesh Chander. After throwing the rifle and the cartridges, accused Jaspal ran away from the spot. Gurmit Singh and Dalbir Kumar took Romesh Chander to the Civil Hospital, but, on the way he died near Jyoti Chowk.

Dr. D.S. Bimbra (P.W. 9), Senior Medical Officer, Civil Hospital, Jalandhar, who performed the autospy on Romesh Chander on 6-10-1992 at about 12.30 p.m. found the following injuries on his body:-

(1) Lacerated wound measuring 214 cm. x 2 cm. on the back of middle of the abdomen about 1 1/2" left lateral to midline.

Lacerated wound of 3 cm. x 2 cm. on anterior aspect of the abdomen, umblical area. Omentum was protruding out. On further dissection and exploration, abdominal cavity was full of clotted blood. Great vessels of abdomen were lacerated. Correspondent fascia and muscles to the injuries were lacerated and injuries 1 and 2 were communicating with each other."

He opined that death was due to shock and haemorrhage as a result of injuries mentioned above which, according to him, were ante mortem in nature and were sufficient to cause death in the ordinary course of nature. According to the doctor, the death must have occurred within a few minutes after sustaining the injury and within 24 hours prior to the post mortem. Ex. PJ is the copy of the post mortem report.

Dalbir Kumar (P.W. 1) and Gurmit Singh (P.W. 2) were examined to speak about the occurrence.

Sub Inspector Lakhbir Singh, formerly of Police Station Division 4, Jalandhar (P.W. 10) deposed that on 5-10-1992 he along with Head Constable Jasbir Singh and others was doing patrolling and checking duty and was present in Jyoti Chowk in Jalandhar at 11.20 p.m. when Dalbir Kumar (complainant) met him, and that there was a dead body in a three-wheeler which was being taken to the Civil Hospital. Lakhbir Singh - P.W. 10 further deposed that Dalbir Singh informed him that Romesh Chander, a Home Guard, is dead, and that the statement of Dalbir Kumar was recorded by him. Lakhbir Singh also stated that his statement was sent to the police station on the basis of which a formal FIR was registered. Lakhbir Singh stated that he along with Dalbir Kumar and other police officials visited the place of occurrence, prepared the rough site plan of the place of occurrence (Ex. PK) and took into possession the rifle (Ex. PI), an empty cartridge and a buldozier containing 29 cartridges under Memo (Ex. PR) attested by Dalbir Kumar and Constable-Bhag Singh. He also stated about taking into possession the bloodstained earth under Memo Ex. PC. He also deposed about holding the inquest, making the request for post mortem examination, and taking into possession the record of employment of accused-Jaspal and deceased-Romesh Chander. P.W. 7 Constable-Bhag Singh also deposed on the lines of the evidence of Sub Inspector-Lakhbir Singh (P.W. 10). Inspector-Jaswant Singh (P.W. 6) deposed about the filing of the charge-sheet. P. W. 4-Rachhpal Singh, MHC, Police Station Division No. 4, Jalandhar, tendered his affidavit stating that on 6-10-1992 Sub Inspector Lakhbir Singh deposited with him the case property in this case, out of which he gave one rifle, 303 bore, five live cartridges and one empty cartridge on 17-11-1992 to Constable Karaj Singh to be delivered in the Forensic Science Laboratory, and that the same were delivered accordingly. He has further stated that on 23-11-1992 he gave a parcel containing blood-stained earth to Constable Amrik Singh who had delivered it in the office of the Chemical Examiner Patiala. Constable Amrik Singh (P.W. 5) also filed an affidavit to the similar effect. Sub Inspector Lakhbir Singh (P.W. 10) also deposed that he arrested the accused Jaspal on 15-10-1992.

When examined u/s 313, Cr.P.C, accused-Jaspal generally denied the allegations against him and stated that he has been falsely implicated in this case at the instance of Dalbir Kumar P.W. 1, who is inimically disposed towards him, in order to save Pal Chand to whom the rifle Ex. PI was issued. According to the accused, Dalbir Kumar P.W. used to allow furlough to the employees after taking illegal gratification from them and that he (accused) had a conflict with Dalbir Kumar P.W. 1 as the latter demanded money for allowing him, (accused) furloughs. The accused also stated that on the day of the alleged occurrence he was present on duty with his official rifle butt No. 1647 issued to him; that he was standing at a distance of 100 yards away from the place of alleged occurrence at the time of the duty, and that he was having good relations with the deceased.

But considering all the materials placed before him, the learned Addl. Sessions Judge convicted and sentenced the accused as mentioned above. Now we have to consider whether the prosecution has succeeded in establishing the guilt of the appellant/accused beyond all reasonable doubt.

There is no dispute that the accused-Jaspal and deceased-Romesh Chander were on guard duty on the day of the occurrence. It is also not questioned that Balbir Kumar P.W. 1, the complainant herein, and Gurmit Singh (P.W. 2) were also there, Dalbir Kumar P.W. has stated in his evidence that Jaspal-accused was on sentry, duty at the treasury, while Romesh Chander (deceased) was on sentry duty at the Malkhana. According to P.W. 1-Dalbir Kumar, the distance between the Malkhana and the treasury is only 40-50 yards, and that the accused and the deceased were standing at a distance of 20/25 yards, whereas, the accused-Jaspal Singh stated that he was 100 yards away from the place of occurrence. But, this little difference is not going to make much of a difference. The question is whether it was the accused-Jaspal who killed Romesh Chander by use of the rifle in question. Of course, it has been stated in the FIR that on 5-10-1992 between 9.00 p.m. and 12 midnight, the accused-Jaspal and Romesh Chander (deceased) were on sentry duty and that the complainant Dalbir Kumar and Gurmit Singh (another Home Guard) were sleeping outside in the courtyard near the Guard Room. It has further been stated that at about 11.00 p.m., Dalbir Kumar heard accused-Jaspal abusing Romesh Chander and that he and Gurmit Singh got up and saw Jaspal firing with his, 303 bore rifle at Romesh Chander, who was sitting on the chair, and that the shot hit at the abdomen of Romesh Chander. It has also been stated in the FIR that the accused-Jaspal threw away the rifle and cartridges there and fled away from the place of occurrence. Therefore, as per the FIR, the complainant-Dalbir Kumar (P.W.) and Gurmit Singh-P.W. 2 are alleged to have seen accused Jaspal actually firing at Romesh Chander deceased with the rifle. But, in his evidence Dalbir Kumar P.W. stated that at about 11.00 p.m. while he and Gurmit Singh were lying in the courtyard, they heard the abuses exchanged between Jaspal and Romesh Chander and heard a shot being fired. P.W., 1 Dalbir Kumar further stated that they came out of the courtyard and saw Romesh Chander (deceased) Was hit by that fire and was still in the chair at that time. P.W. I also stated that Jaspal-accused was present before the firing and that he ran away from that place leaving his rifle and the buldozier there. So, in his evidence P.W. 1 has not stated that he actually saw accused Jaspal firing at Romesh Chander with the rifle. P.W. 2-Gurmit Singh stated in his evidence that on the date of occurrence he along with Dalbir Kumar P.W. was lying outside the Guard Room in the courtyard, while Jaspal (accused) and Romesh Chander (deceased) were deployed for sentry duty at the Treasury and Malkhana, respectively. P.W. 2-Gurmit Singh further-stated that at about 11.00 p.m. he was woken up by Dalbir Kumar P.W., and that he saw Romesh Chander lying dead. He further stated that he (Romesh Chander) had received bullet injury in his abdomen and blood was oozing. P.W. 2 specifically stated that he did not see Jaspal-accused as it was dark. However, he stated that thereafter he did not see Jaspal on duty. So, we find that there is variation between the F.I.R. and the evidence of both P.Ws. 1 and 2 to this extent, i.e., while in the F.I.R. it has been stated that they saw the accused shooting with a rifle at deceased-Romesh Chander, in their evidence they did not say that they saw the accused shooting at Romesh Chander. But on that score, the case of the prosecution cannot be held to be untrue. If we take into consideration the overall effect of their evidence it will be clear that it was accused-Jaspal who had shot with his rifle at Romesh Chander (deceased). The evidence of P.W. 1 Dalbir Kumar shows that in the evening preceding the occurrence, accused-Jaspal and Romesh Chander-deceased had quarrelled at 6.00 p.m. but were pacified. His evidence also shows that once again at 11.00 p.m. on the same night there was an exchange of abuses between the accused-Jaspal and Romesh Chander-deceased. Thereafter, on hearing the report of the gun shot P.W. 1 had come and seen Romesh Chander, who was sitting on the chair, had been hit by that fire. P.W.-l stated that Jaspal accused who was present there had run away from that place leaving the rifle and the buldozier. Although P.W.-2 also did not see the accused actually shooting the deceased with the rifle, he also stated that at 11.00 p.m. he was woken up by Dalbir Kumar and that he saw Romesh Chander lying dead with a bullet injury in his abdomen. He stated that blood was also oozing. Although he stated that he did not see Jaspal accused there as it was dark, he stated that earlier Jaspal was on duty at the Treasury, and after the occurrence he did not see Jaspal on duty. Therefore, it is seen that P. W.-l Dalbir Kumar had spoken about the motive and also about the exchange of abuses between the accused and the deceased immediately before he heard the report of rifle. It is also clear from the evidence of P.W. 1-Dalbir Kumar that accused Jaspal, who was there at the scene of occurrence, had thrown away the rifle and the buldozier and run away from the spot after the occurrence. The evidence of P.W. 2-Gurmit Singh also shows that accused-Jaspal, who was on duty prior to the occurrence was not seen in that place after the occurrence. As rightly pointed out by the learned counsel for the State, there was no reason for the accused to run away from that place throwing away the gun and the buldozier unless it be that he had fired with the rifle at the deceased. Therefore, the fact that P.W.s. 1 and 2 did not depose about their actual seeing the accused shooting at the deceased will not affect the case of the prosecution. There is no reason whatsoever for both P.Ws. 1 and 2 to depose falsely against the accused. Of course, the accused contended that Dalbir Kumar, P.W. 1 used to send the employees on furlough after receiving bribe and that there was a conflict between him (accused) and Dalbir Kumar P.W. in this behalf and, therefore, Dalbir Kumar had falsely implicated him in this case. Such a contention cannot be accepted because the contention remains only a suggestion to the prosecution witnesses, and there is nothing and the record to show that Dalbir Kumar used to send employees on furlough after receiving bribe or that there was any dispute between the accused and Dalbir Kumar P.W. in this behalf. Secondly, we also see that though, in the FIR it has been alleged that Dalbir Kumar had actually seen the accused firing with his rifle at the deceased, he did not say so in his evidence. If really the intention of Dalbir Kumar P.W. was to falsely implicate the accused in this case then he would have stated in his evidence also that he saw the accused firing at the deceased. This shows that the contention of the accused that he has been falsely implicated at the instance of Dalbir Kumar P.W. cannot be true.

Of course, it was contended that the gun which was used in the commission of the offence did not belong to the accused, i.e., it was not issued to the accused but was actually issued to Pal Chand. But that does not make any difference. It may be that the rifle was issued to Pal Chand who was also one of the Home Guards. The evidence of Dalbir Kumar P.W. is that Pal Chand was also present along with them. Therefore, the accused-Jaspal could have used the weapon issued to Pal Chand in committing the crime and it is not necessary that he should use the rifle that was issued to him. Therefore, this does not affect the case of the prosecution.

Further in this case we find that the occurrence had taken place at about 11.00 p.m. on 5-10-1992. The FIR had been recorded between 11.20 p.m. and 11.40 p.m. as will be seen from the evidence of P.W. 10 -Sub-Inspector Lakhbir Singh. The special report had reached the Magistrate at 5.30 a.m. on the next day. Therefore, we see that the FIR had also been promptly lodged.

The next question is as to what is the offence committed by the accused. The contention of the appellant/ accused is that, no motive has been established, but we find from the evidence of Dalbir Kumar that even in the evening at about 6.00 p.m. there was a quarrel between the accused and Romesh Chander deceased. At 11.00 p.m. immediately before the occurrence also there was an exchange of abuses between them. Although there is no evidence as to the matter over which there was a quarrel between them, we see that there had been an altercation between the accused and the deceased immediately before the occurrence. So, it must be in the heat of passion and altercation that the accused must have used the rifle and shot at Romesh Chander deceased. He had shot only once which, of course, resulted in the death of Romesh Chander. Therefore, in these circumstances we are of the opinion that the appellant/accused must be held to have acted in the heat of passion and committed the offence of culpable homicide and falling within the ambit of and punishable u/s 304, Part I, I.P.C., and we accordingly hold him guilty of the offence u/s 304, Part I, I.P.C., and not of murder. Accordingly, we modify the judgment and the order of learned Addl. Sessions Judge to this extent and we sentence him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 2,000/- and in default to undergo further rigorous imprisonment for one year.

In the result, the appeal is allowed in part and the judgment and the order of learned Addl. Session Judge are modified in that the conviction of the accused appellant u/s 302, I.P.C. is set aside, but he is convicted u/s 304, Part I, I.P.C. We also modify the sentence awarded to him as indicated earlier in that he is sentenced to rigorous imprisonment for ten years and ordered to pay a fine of Rs. 2,000/- and in default to undergo rigorous imprisonment for one year. The fine if realized shall be paid to the next of the kin of the deceased.