Kala Singh and Others vs State of Rajasthan

Mohammad Rafiq, J.—This criminal appeal has been filed by four appellants against the Judgment dated 24.7.1987 passed by the learned Additional Sessions Judge, No. 2, Hanumangarh in Sessions Case No. 26/84 whereby he has convicted and sentenced the accused-appellants as under:

(i) Amar Singh -- u/s 307, I.P.C. to undergo four years rigorous imprisonment. and a fine of Rs. 500/-, in default of payment of fine to further undergo 3 months'' R.I., and u/s 27 of the Indian Arms Act to undergo two years'' R.I. and a fine of Rs. 200/-, in default of payment of fine to further undergo one month''s R.I.

(ii) Tahal Singh -- u/s 326. I.P.C. to undergo two and half years R.I. and a fine of Rs. 500/-, in default of payment of fine to further undergo R.I. of 3 months.

(iii) Kala Singh -- u/s 324, I.P.C. to undergo one year''s R.I.

(iv) Balabeer Singh -- u/s 324, I.P.C. to undergo one year''s R.I.

At the outset, learned Counsel for the appellants has stated that during the pendency of appeal appellant No. 3 Balbeer Singh and No. 4 Tahal Singh have expired. According to provisions of Section 394(1), Cr.P.C., the appeal preferred by these two appellants has thus abated and therefore, need not be decided on merit. Their appeals are therefore disposed of accordingly. So far as the appeal preferred by appellant No. 1 Kala Singh and No. 2 Amar Singh is concerned, I would first take the case of Amar Singh, who has been convicted for commission of offence u/s 307, I.P.C. and u/s 27 of the Indian Arms Act.

Learned trial Court has considered the statements of five prosecution witnesses, in his judgment Dr. Sahi Ram who conducted the medical examination of the injured Makhan Singh and Darshan Singh has been produced as P.W. 1 and has proved their injury reports Ex. P/1 and P/2 respectively. He has deposed in his statement that Makhan Singh received three injuries. Injury No. 1 was lacerated wound in the size of 1 1/4" x � oval in shape and bleeding was present having inverted margins. Injury No. 2 was lacerated wound in the size of 1� x 3/4" oval in shape and bleeding was present having inverted margins. Injury No. 3 was incised wound in the size of 2" x 1/3" x 0.2" with margin clear cut. While the first injury received by the accused Makhan Singh was on the abdomen and the location of third injury was on the right forearm with radial aspect. According to the version of the doctor both the injuries could have been caused by a firearm although, he has stated that no blackening and tatooing was present on skin around both the wounds. He has further stated that on probing by a rubber catheter from injury No. 1 to injury No. 2 it passes easily through and through i.e. a track is present under both the injuries under the skin in the fat.

P. W. 2 Makhan Singh who was one of the injured has stated that Amar Singh fired gunshot injuries which he sustained on his abdomen. Balbeer Singh inflicted ''Gandasi'' blow on his right hand Tahal Singh inflicted ''Kassi'' blow on the head of Darshan Singh and Kala Singh inflicted ''sword'' on the hand of Darshan Singh. On receiving these injuries both of them fell down on the ground and were taken to hospital by Khan Singh and Pahalwan Singh in the tractor-trolley of Bakhsheer Singh. He has stated that all the accused had earlier beaten his father. They have caused the injuries to him and Darashan Singh with a view to kill them. In the cross-examination, he has stated that Amar Singh fired at him from a distance of 15 pawandas.

P. W. 3 Darshan Singh, another injured in his statement has corroborated the version of P.W. 1 Makhan Singh insofar as the liability of the accused particularly the injuries sustained by the injured is concerned. He has similarly stated that Amar Singh was having ''Pistol'', Balbeer Singh was having ''Gandasi''. Tahal Singh was having ''Kasla'' and Kala Singh was having "sword". Amar Singh fired at Makhan Singh from a distance of 15 pawandas which he received oh his stomach. Balbeer Singh inflicted a ''Gandasi'' blow on the hand of Makhan Singh. Tahal Singh inflicted ''sword'' blow on his left hand.

P. W. 4 Abdul Aziz Who is Investigating Officer of the case has stated that he recovered the country made pistol and one empty cartridge at the instance of Amar Singh vide Ex. P/19. He has deposed that he has also recovered other weapon of offences life "Kripan" at the instance of accused Kala Singh, ''Kassia'' at the instance of accused Tahal Singh vide Ex. P/26 and ''Gandasi'' at the instance of Balbeer Singh vide Ex. P/28.

Learned trial Court in para 12 of the judgment has acknowledged the fact of a case being registered against the compLainant party on account of their having caused injuries to the accused. The accused appellants produced their Injury Reports in the trial Court as Ex. D/1-A, D/2-1 and D/3-A, P. W. 1 Dr. Sahi Ram has also proved these Injury Reports. According to Ex. D/1-A, Amar Singh received six injuries, out of which three injuries were caused by sharp edged weapon. Tahal Singh received two injuries and both injuries were by a sharp edged weapon and one of them was found grievous in nature. The cross case has also been registered by Jaymal Singh from the side of the accused which fact has been admitted by P. W. 4 Abdul Aziz, who is Investigating Officer in the present case. According to the evidence, the incident has taken place on the way although there was a dispute between the parties in regard to certain land, possession of which was handed over to the accused-party by Patwari in the morning of the day of incident. According to P. W. 2 Makhan Singh, criminal cases were also registered against the accused-appellants party at their instance for beating his father.

Thus, it is evident that there was previous enmity between the parties and the immediate cause for the incident in question appears to be the dispute regarding land, possession of which was handed over to the accused-party by Patwari on the date of incident. Although, learned Counsel for the appellant Shri R.S. Gill has stated that the challan In the cross case was also filed and conviction of certain persons from the compLainant party was recorded by the trial Court in that case but he is not in a position to place either the copy of the judgment or give exact details of that case.

In para 14 of the judgment, the learned trial Court has recorded that the injury caused by Amar Singh by firearm on the stomach of Makhan Singh was received by him immediately below the chest, which is vital part. If the injury of the firearm would have been caused on the legs, it could be said that the accused had no intention of causing death of the injured. But, in the present case, when the injury was caused at the stomach, it could prove fatal particularly when it was caused with the help of firearm. The learned trial Court has therefore came to the finding that accused appellant Amar Singh had fired on the stomach of injured Makhan Singh with intention to cause death and there was sufficient evidence on the basis of which charge u/s 307, I.P.C. can be taken to have been proved against the accused Amar Singh beyond reasonable doubt. On this basis, the learned trial Court has recorded the conviction of accused Amar Singh u/s 307, I.P.C. and sentenced him as noted above.

On critical examination of the evidence available on record and in the light of findings recorded by the learned trial Court, it is revealed that the conviction and sentence of accused Amar Singh u/s 307, I.P.C. has been recorded by the learned trial Court for causing injury Nos. 1 and 2 to the injured which were located at left side of the abdomen and over right side of abdomen respectively. According to Ex. P/1 both these injuries have been certified to be simple in nature and caused by blunt weapon. In these injuries, the doctor has found that on probing by a rubber catheter from injury No. 1 to injury No. 2 it passes easily through and through i.e. track is present under both the injuries under the skin in the fat. In the report, it has been stated that no blackning or tattooing was present. Neither in the injury Report Ex. P/1 nor the doctor who examined the injured who has proved the Injury Report, has stated that either injury No. 1 or No. 2 independently or both the injuries cumulatively was/were sufficient in the ordinary course of nature to cause death of Makhan Singh. No such suggestion appears to have been put to him by the prosecution in the cross-examination. Although, with regard to injury No. 2 sustained by another injured Darshan Singh when he was asked such a question, P. W. 1 Dr. Sahi Ram has categorically stated that injury No. 2 sustained by injured Darshan Singh was not sufficient in the ordinary course of nature to cause his death.

In view of the fact that Dr. Sahiram has stated in his statement that probing of both the injuries by a rubber catheter from injury No. 1 to injury No. 2 it passes easily through and through i.e. a track is present under both the injuries under the skin in the fat, if the distance of 75 ft. which has been proved by prosecution evidence is taken to be correct, it becomes doubtful whether or not the injury in the question could have been caused by a country made pistol of the dimension of 3 x 3 from such a distance. Moreover, no blackening and tattooing on skin around both the holes were found. Even if it is not accepted that injuries in question are not caused by pistol, the fact remains that injuries in question were received by injured Makhan Singh on stomach and were superficial in nature and were not deep rooted so much so that a track was present in the fat immediately below the skin of the abdomen of the injured. These injuries could not cause any such immediate apprehension to the life of the injured and therefore were rightly opined to be simple in nature. The doctor who examined such injuries did not give any opinion whether or not these injuries were sufficient in the ordinary course of nature to cause death.

In my view, mere use of firearm to cause injury which in the present case has itself not been proved beyond reasonable doubt, does not necessarily mean that such case would fall within the purview of Section 307, I.P.C. No assumption can be drawn that by use of firearm in causing injuries on non-vital part of the body the accused had intention to cause death of the injured. Intention of the accused has to be proved from the nature of the injuries actually received, the part of the body where he caused injuries, number of injuries, the force which he used in causing such injuries and other surrounding circumstances of the case. The prosecution is under an obligation to establish whether or not injury caused by the accused was sufficient in the ordinary course of nature to cause death of the injured or was so eminently dangerous that it would have caused his death. The prosecution is also required to prove that accused in causing such injury had the requisite intention and knowledge that he by his act if caused death of the injured would be guilty of murder. In other words, by doing such an act, he would have caused the injury on the person of the injured which was likely to cause his death.

A reference in this connection may be made to the judgment of this Court in the case of Mani Ram v. The State of Rajasthan, reported in 1988 Cri LR 252 in which injuries were caused on the non-vital part of the body of the injured by firearm and were described simple in nature were not held to have attracted offence u/s 307, I.P.C. but the accused in that case was convicted only u/s 324, I.P.C.

In the present case therefore, I hold the accused appellant Amar Singh guilty for commission of offence u/s 324, I.P.C. instead of Section 307, I.P.C.

Now, I advert to the appeal preferred at the instance of accused Kala Singh.

Allegation against Kala Singh is that he by use of sword caused incised wound with clear cut margins to the injured Darshan Singh and the nature of injury was opined to be simple having been caused by sharp edged weapon. The Medical Officer at the same time advised that no injury was found on his hand. The injury No. 2 was incised wound in the size of 2" x 1/4" on left parietal area of scalp obliquely directed. When this injury was subjected to x-ray vide Ex. P/2, it was discovered to be fracture of left parietal bone but this injury was attributed to accused Tahal Singh by use of ''Kassia''. In the circumstances, therefore, so far as conviction of Tahal Singh u/s 324, I.P.C. is concerned the same can be justified. However, so far as accused Kala Singh is concerned, his conviction u/s 324, I.P.C. simpliciter could not have been recorded in view of the nature of injury and other surrounding circumstances. He could at best be convicted u/s 323 I.P.C.

In the result, the appeal of accused Kala Singh and Amar Singh is partly allowed. The conviction and sentence recorded against accused appellant No. 1 Kala Singh u/s 324, I.P.C. is modified and instead, he Is held guilty of the offence u/s 323, I.P.C. Conviction of accused-appellant No. 2 Amar Singh u/s 307, I.P.C. is modified and instead, he is held guilty of the offence u/s 324, I.P.C.

The incident in the present case had taken place way back on 10.3.1984. More than 22 years have gone by since then. The judgment of the trial Court convicting the accused-appellant was passed on 24.7.1987. More than 17 years have passed thereafter. The accused-appellants have by now grown old in age and there is no report that they have misused the liberty granted to them by this Court while releasing them on bail.

It has been submitted that accused Kala Singh remained in confinement for a period of 68 days during trial and the accused Amar Singh remained in confinement for a period of 74 days. In these circumstances, I deem it appropriate to convict the accused appellants Kala Singh to the period of sentence already undergone by him during trial and at the same sentence the accused Amar Singh to the period already undergone by him.