Nageshwar Shah vs State of Punjab

S.S. Grewal, J.

This appeal is directed against the order of the learned Additional Sessions Judge, Jalandhar, dated April 1, 1992, whereby accused Nageshwar Shah was convicted under Section 307 of the Indian Penal Code and was sentenced to undergo rigorous Imprisonment for four years and to pay a fine of Rs. 100/. In default of payment of fine, he was further ordered to undergo Rigorous Imprisonment for one month, whereas Ambika Parshad accused who was convicted under Section 307 read with Section 34 of the India Penal Code and remained in custody from August 15, 1991 to January 6, 1992, was sentenced to undergo Rigorous Imprisonment, which he had already undergone in this case and also to pay a fine of Rs. 300/ In default of payment of fine, he was further ordered to undergo Rigorous Imprisonment for three months.

In brief, facts of the prosecution case are that on August 12, 1991, at about 8.30 p.m., Surinder Singh complainant was present in his shop and at that time, Nageshwar Shah and Ambika Parshad who had business dealings with the complainant, came there and wanted to purchase certain articles for which the complainant demanded the payment in cash. Both the accused refused to do so and had an alteration with the complainant. Ambika Parshad accused caught hold of Surinder Singh whereas Nageshwar Shah accused gave one Kirpan blow on the neck and the other on the left shoulder of the complainant, who caught hold of the kirpan with his left hand as a result thereof, he too received injuries on his left hand. Hue and cry raised by the complainant attracted Shangara Singh to the spot. Both the accused then ran away from the spot alongwith the kirpan. After completion of the investigation, the accused were tried and convicted as detailed below.

Aggrieved against the order of sentence, only Nageshwar Shah filed the present appeal.

I have heard the learned counsel for the parties and have gone through the file carefully with the help of the learned counsel for the parties.

In their defence version, both the accused Nageshwar Shah and Ambika Parshad denied having caused injuries to the complainant.

The ocular account in this case rests on the testimony of Surinder Singh (complainant) who has imprint of injuries on his person and Shangara Singh who was attracted to the spot on alarm raised from nearby house. Learned counsel appearing for the appellant submitted that ocular account relied upon by the prosecution rests on the testimony of Surinder Singh injured and his father Shangara Singh. No other independent witness has been produced and it would not be safe to base conviction of the appellant on the testimony of the two close relations, which would naturally be entrusted in the success of the case.

The argument is devoid of any merit. Surinder Singh is a stamped witness. The medical evidence reveals that he had received three incised wounds, one on the front of the neck, second on the front of the left upper part of the chest and third on the terminal phalanx of left index finger. Out of these three injuries, injury on the neck, according to the opinion of Dr. Ashok Nanda (PW) who conducted medicolegal examination on the person of Surinder Singh, could prove dangerous to his life. Shangara Singh was attracted to the spot from the nearby house on hue and cry raised by his son Surinder Singh. The presence of Shangara Singh at the spot at the time of occurrence, is, thus, quite natural, probable and convincing. Testimony of both the eye witnesses finds ample corroboration from the medical evidence on the record which reveals that all the three injuries were caused by Kirpan. No contradiction worth the name in the testimony of Surinder Singh and Shangara Singh PWs have been pointed out by the learned counsel for the appellant. Their testimony is creditworthy. The defence plea that Surinder Singh received injuries at the hands of some labourer is a cock and bull story, which hardly inspires any confidence. It is difficult to believe that Surinder Singh and Shangara Singh would exculpate the real culprits in order to implicate the appellant or his coconvict Ambika Parshad with whom they had no illwill or previous enmity. I, thus, find not the least hesitation in rejecting the defence plea put forth on behalf of the appellant.

Lastly, it was submitted that no offence under Section 307 of the Indian Penal Code is made out against the appellant and the mere opinion of the doctor that the injuries on the front of the neck of Surinder Singh could prove dangerous to his life, would not be sufficient to bring home the charge against the appellant under Section 307 of the Indian Penal Code.

Reliance in this respect was placed on the authority of the Apex Court in Ramesh v. State of UP, JT 1991(IV) SC 473 wherein their Lordships of the Supreme Court held "that in peculiar circumstances of the case it being a case of single injury in the back of neck the conviction can be altered to be under Section 324, Indian Penal Code." The afore cited authority would not be of any avail to the appellant in the instant case wherein apart from the injury including one on the front of the left upper part of the chest. The afore cited authority which was based on the peculiar facts and circumstances of that particular case, would not be applicable to the facts and circumstances of the present case and is clearly distinguishable. Secondly Division Bench authority of this Court relied upon is Dr. A.G. Bhagwat v. U.T. Chandigarh, 1989 Cr LJ 214. There is no dispute with the proposition of law enunciated in this authority that for the purpose of this offence what is material is the intention or knowledge and not the consequence of the actual act done for the purpose of carrying out that intention. Intent essentially implies purpose and attempt is an actual effort made in execution of the purpose. Therefore, an attempt for purposes of Section 307 IPC should stem from a specific intention to commit murder. Obviously, as far as the present case is concerned, Surinder Singh complainant has received three injuries. In the instant case, the appellant gave three kirpan blows to Surinder Singh injured, two of these injuries are on the vital part of the body including the front of the neck, whereas the third injury was received on the left index finger when Surinder Singh injured tried to defend himself present is not a case of single injury. Rather, Surinder Singh received three injuries on his person at the hands of the present appellant, out of which, two injuries were received by kirpan blows on the vital part of the body including the one on the front of the neck. The mere fact that the Doctor did not probe the injuries for the sake of safety of the patient or that the Doctor did not specifically petition that the injury on the neck was sufficient to cause death in ordinary course of nature, to my mind, would not be sufficient as far as the facts and circumstances of the present case are concerned, to hold that no offence under Section 307 of the Indian Penal Code is made out against the appellant. The fact that the appellant repeatedly gave two blows on the front of the neck and on the left upper part of the chest, an inference can reasonably be drawn that the appellant had the intention and requisite knowledge to commit murder of Surinder Singh. The prosecution has, thus, been able to bring home charge under Section 307 of the Indian Penal Code against the appellant beyond reasonable doubt and his conviction is, by the trial Court is maintained. However, taking into consideration the over all circumstances of the case, particularly that there was no illwill or previous enmity between the parties, who had business dealings with each other, as well as the fact that the appellant underwent agony of trial for about eight months and his appeal remained pending for a period of more than two years, the sentence of imprisonment awarded by the trial Court is reduced from four years Rigorous Imprisonment to three years Rigorous Imprisonment. Except with this modification, I do not find any merit in this appeal and the same is hereby dismissed.