Nirvair Singh vs State of Punjab

Swatanter Kumar, J.

On 5.4.1990 when there were apparent disturbances in part of the State, at S.P.O. Police Post Vain Puin, fire shot from S.L.R. allotted to Nirvair Singh resulted in the death of constable Jagtar Singh. Upon trial, Nirvair Singh who is also a constable was convicted. The learned Addl. Sessions Judge, Amritsar, upon holding Nirvair Singh guilty of the offence under Section 302 of the Indian Penal Code passed an order of sentence dated 22.4.1995 awarding him life imprisonment and to pay a fine of Rs. 200/ and in default to undergo rigorous imprisonment for one month. It is this judgment of the learned Additional Sessions Judge dated 22.4.1995 which has been impugned in the present criminal appeal.

The case of the prosecution is that Nirvair Singh was on duty intervening night 4/5.4.1990 at Police Post S.P.O. Vain Puin. The incharge of this Police Post Head Constable Jaswant Singh had proceeded on leave for four days and consequently, Jarnail Singh Constable was sent in place of Head Constable Jaswant Singh. Jagtar Singh, Partap Singh and Lakhwinder Singh were other constables on duty at that police post. Partap Singh was on duty from 6 p.m. to 9 p.m., Lakhwinder Singh was on duty from 9 p.m. to 12 p.m. and Jagtar Singh was on duty from 12 mid night to 3 a.m. Duty of Nirvair Singh was from 3 a.m. to 6 a.m. The unfortunate occurrence took place at 4.30 a.m. at Village Post Vain Puin and FIR was registered at 6.30/7 a.m. on 5.4.1990 at Police Station Verowal which is at a distance of 18 km, upon recording of statement of Constable Jarnail Singh (PW1) by Mohinder Singh SHO (PW11). According to Jarnail Singh, Constable Jagtar Singh after completing his duty asked Nirvair Singh accused to attend his duty and after that, Jagtar Singh is stated to have gone on the roof of sentry post for sleeping. At about 4.30 a.m. Jarnail Singh, Partap Singh and Lakhwinder Singh heard gun shot. They went up and saw that Jagtar Singh was lying on the ground in an injured condition and he was conscious at that time, and, he told that Nirvair Singh accused had fired at him. According to the deceased, the accused had illicit relations with some girl and Jagtar Singh had asked him not to indulge in these matters. Due to this grudge, the accused had fired shot at the deceased. Other constables tried to overpower the accused, but he ran away leaving his gun behind, but took away loaded magazine along with him. The accused is stated to have fired shot from his service S.L.R. No. 114/T.T. The matter was reported by wireless message and thereafter ASI Gurdial Singh had come at the spot and Jagtar Singh was in senses. Therefore, he was immediately taken to Civil Hospital, Taran Tarn for treatment, but on the way he succumbed to his injuries.

The body of the deceased was subjected to postmortem by Dr. Karanjit Singh (PW7), who proved postmortem report EX. PC. Fire shot injury was confirmed in the postmortem report. Ballistic expert''s report had confirmed that the bullet fired upon the deceased was fired from the service revolver of the accused and empty tallies with the gun. The investigating officer prepared site plan EZ.PW.10/A and upon recording of other necessary witnesses, challan was presented, the accused was charged for an offence under Section 302 of the Indian Penal Code and upon trial, he has been convicted and sentenced as aforestated.

The present case is certainly a case of more circumstantial evidence than eye version account. It is for this reason that we must scrutinise the evidence more carefully to avoid prejudice to either side. The material witnesses of the present case are P.W.1 Jarnail Singh on whose instance FIR was recorded and Dr. Karanjit Singh (PW7) who proved postmortem report, conducted post mortem examination on the deadbody of the deceased. Lakhwinder Singh and Partap Singh Constables who were on duty prior to the duty of the accused and the deceased were examined as P.W.2 and P.W.3 respectively. FIR has been exhibited as PG which was registered on the basis of the ruqa Ex.PA/1. The investigating Officer had recorded the statements of these witnesses. The duty roster dated 4/5.4.1990 Ex.PW8/1 is not really material because the basic facts are hardly disputed by the accused himself.

The statement of P.W.1 Constable Jarnail Singh in Court was quite consistent with his statement made to the police. According to this witness, Jagtar Singh deceased had disclosed to him that the accused had fired at him and the accused ran away from the place of occurrence in the presence of these witnesses. The grudge stated to be is that Jagtar Singh used to object to Nirvair Singh having illicit relations with some girl in the village. It has been sufficiently proved on record that the accused was present at the place of occurrence, he was armed with service revolver and that he had fired at the deceased and succeeded in running away from the site. As already noticed the body of the deceased was subjected to postmortem examination. Dr. Karanjit Singh P.W.7 conducted the (sic) deceased and noticed injuries on the body and made the following observations which are relevant for reference :

"It was dead body of well built and nourished young male Sikh, wearing white baniyan, biscuit colour pant and underwear. Rigor mortis was present in the lower limbs. The following ante mortem injuries were present :

A laccerated inverted and black margins wound 0.5 cm X 1 cm was present on the mid line of the chest at second inter costal space level.

A lacerated averted wound 4 cm x 3 cm was present on the right shoulder 4 cm behind the top of the shoulder. On dissection, both the wounds found communicating after lacerating inter costal muscles right lung, pleura, bones of right shoulder joint and pleural cavity was full of blood.

Stomach was empty. Urinary bladder was also empty. Death in my opinion was due to shock and haemorrhage, as a result of injuries No. 1 and 2, which were sufficient to cause death in ordinary course of nature."

The above injuries were found on the person of the deceased Jagtar Singh and in the course of his examination PW 1 Jarnail Singh stated that it was after hearing the gunshot that he and others had gone up and found Jagtar Singh had received gunshot injuries and was lying wounded. According to him Nirvair Singh had run away and Jagtar Singh had disclosed to them before dying about Nirvair Singh. An important fact which has come on record in the crossexamination of this witness is that all the constables were issued separate rifles and Jagtar Singh had not come downstairs after Nirvair Singh had taken over the duty from him. According to this witness it was this factor which made him believe that Jagtar Singh was sleeping near the sentry post.

PW 2 Lakhvinder Singh had also supported the version of the prosecution except to the extent that he had not seen Nirvair Singh as it was dark and he claims that the deceased did not tell him anything regarding incident. This witness was declared hostile during his examination. PW 3 Partap Singh had fully supported the case of prosecution and his statement was fully in line with the statement of PW 1. This witness in fact in his cross examination by the accused stated that he heard the abuses hurled by Jagtar Singh before the shot was fired. Statement of these witnesses along with the statement of the medical officer and the investigating officer establishes that the accused was present at the place of occurrence and in fact was on duty just some time before the occurrence. The ballistic expert''s report establishes on record that from the S.L.R. recovered from the possession of the accused one empty was found and it was further established that the fire arm injury had been fired from this gun by definite expert evidence. Only one shot was fired at the time of occurrence.

An effort was made on behalf of the accused to show that there are serious contradictions in the statements of PW 3 on the one hand and PW 2 on the other, and as such the whole case of the prosecution suffers from serious doubt. We are unable to agree with this contention primarily for the reason that the version given by PW 3 and the investigating officer is fully supported by link evidence and medical and expert evidence. This is the only plausible version which was possible and the conclusion without error or demur indicates towards the guilt of the accused. PW 2 in fact also supported the case of the prosecution except that he could not see Nirvair Singh as it was dark and the deceased did not speak to him. It is on this statement that the witness was declared hostile but this variation in the statement of this witness from the statement made to the investigating officer under Section 161 Cr.P.C. with which he was confronted is really not of much consequence in the facts of the present case. It could be possible that PW 1 and PW 3 had gone up together while Lakhvinder Singh PW 2 might have come little later. He claims to have gone to sleep and he does not say in his examination that he had went along with PW 1 and PW 3. Thus, this variation is a plausible explanation and does not prove fatal to the case of the prosecution.

In any case not much significance can be attached to this contention because the occurrence itself is admitted by the accused and it is also admitted that it was because of his firing the gun that the deceased had suffered injuries and subsequently succumbed to these injuries. The accused after admitting that he was on duty, in reply to Question No. 1 in his statement under Section 313 Cr.P.C., which was recorded on 28.3.1995 and denying rest of the evidence against him being incorrect, finally concluded his statement as under :

"I am innocent. On the day of the occurrence Jagtar Singh deceased after his duty went to the village. He had illicit relations with a lady of that village. That lady instigated him against me. He came back and abused me. He was armed with a rifle. He raised Lalkara that he will kill me and he fired at me but that fire did not hit me and I fired with the S.L.R. in selfdefence. If I had not fired he would have killed me. He died due to the injuries given by me by the S.L.R. I appeared before the SHO on 5.4.1990, narrated the occurrence to him. I was kept in illegal detention and the investigation of the police was not fair. The police suppressed the circumstances favourable to me."

In view of the statement of the accused himself and the fact that the prosecution has been able to prove its case beyond reasonable doubt, some error in the statement of PW 2 cannot be given undue significance. At this stage we consider it appropriate to judge the veracity and truthfulness of the defence put forward by the accused. The accused was on duty and was having a gun with him. He admits that he fired at the deceased but in selfdefence. This plea of selfdefence has not been proved by the accused reasonably and does not indicate version of the defence which could be stated to be probable. No evidence has come on record that deceased had fired from his gun, any empties were collected from the site and the accused has not brought any defence evidence to show or prove that prior to the hearing of the gunshot which resulted in the death of the deceased, any gunshot was heard by various PWs and even other persons as admittedly the police station is located in a house which is in the vicinity of the village. It has come on record that every P.S.O. at the police post was given a gun and it would have been quite possible for the accused to support his defence by adducing proper evidence including the records of the department, but no such attempt was made by the accused. Having owned the major part of the occurrence the accused has failed to establish the plea of selfdefence by a positive or plausible evidence. Nonproduction of any defence evidence, nonrecovery of other empties and absence of any link evidence to show that the defence put forward by the accused is not creditworthy and is not even plausible in the facts and circumstances of the case.

This brings us to the last contention which is raised on behalf of the appellant that there was no previous animosity between the parties, there was no intention on the part of the appellant to kill the deceased, even the occurrence as stated by the prosecution was a sudden quarrel and as such the appellant could not have been convicted for an offence under Section 302 I.P.C. No doubt both the accused and the deceased were serving in the police and were known to each other. It has nowhere come in evidence that the parties had a prolonged or any serious animosity with each other. On the contrary both the accused and the deceased were on duty on that date and nothing abnormal was noticed. The accused had taken over the duty from the deceased. The appellant admittedly fired all of a sudden at the deceased. There is some indication in the statement of PW2, more particularly and even other PWs that they had heard the deceased hurling abuses at the accused. Nobody had heard the gunfire as already noticed by us. At best it could be said that there was sudden quarrel between the parties in which the accused fired from his service revolver at the deceased and the firearm injury so caused, resulted in the death of the deceased. There is no evidence of pre meditation, preplanning, animosity or any reasonable motive for the accused to kill the deceased, but the fact remains that accused belongs to police force. Even deceased belonged to police force. Accused is expected to know what a fire injury can cause in its normal course and at what part of the body. As there was no gunshot fired by the deceased, we do not see any justification on the part of the accused to fire bullets at the chest of the deceased.

From the record it is clear that there was definite intention on the part of the accused to cause death or such bodily injury which is likely to cause death when he fired on the deceased in response to the abuses allegedly hurled by the deceased. This accused cannot take advantage of any innocence as he is expected to know the effect of his act. He is expected to be more disciplined, organised and even if there was abuse or threat to his life he could have fired at the nonvital parts of the body of the deceased because deceased was admittedly standing at a very short distance from the accused. As the prosecution has not brought on record any animosity, premeditation or preplanning to commit the crime or strong motive against the accused, the accused cannot seek any other protection except that he is guilty of an offence under Section 302 I.P.C.

A Division Bench of this Court, in Criminal Appeal No. 362DBA of 1994 titled Mala Ram v. The State of Haryana, decided on 24.4.1997, 1997(3) RCR (Crl.) 484 after discussing in detail the law relating to the principles governing distinction between Section 302 I.P.C. and Section 304 Part I and Part II of I.P.C. held as under :

"The underlying principle of the various judgments aforecited thus makes it clear that it is the intention to cause death which would primarily be the consideration for determining whether the offence committed by the accused would fall under Section 304 Part I or 304 Part II IPC. The accused must have an intention to cause death or to cause a bodily injury which is likely to cause death. Absence of these ingredients i.e. the accused having intention to cause death, would bring the offence outside the ambit of Part I of this section. This distinction is fine but real and if overlooked can result in miscarriage of justice."

Intention in a given case, thus, has to be collected from the evidence on record including the expert evidence and the circumstances attendant thereto. We are unable to find that there was any provocation much less the grave provocation for the accused to have fired at the deceased in the present manner. The fight being sudden commencing from alleged abuses of the deceased and the apprehension in the mind of the accused which to us appears to be illfounded, we are constrained to hold that the appellantaccused is guilty of an offence under Section 304, Part I IPC. Consequently, we convert the conviction of the appellant from Section 302 IPC to Section 304 Part I IPC.

Having held the appellant guilty of the offence under Section 304 Part I IPC we award and direct the appellant to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 20,000/ in default thereof to further undergo rigorous imprisonment for a period of one year. The amount of fine, if recovered, is directed to be converted as compensation, which shall be paid to the heirs of deceased Jagtar Singh. Appeal is allowed to the limited extent aforestated.