Ravinder Singh vs State of Punjab

Sat Pal, J.

This appeal is directed against the judgment dated 29th April, 1994, passed by the Sessions Judge, Ferozepore. By this judgment, the learned Sessions Judge convicted the appellant for the offence under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 5,000/ and in default of payment of fine, further to undergo rigorous imprisonment for three years. The learned Sessions Judge also convicted the appellant under section 27 of the Arms Act and sentenced him to undergo rigorous imprisonment for three years and to pay a fine for Rs. 1,000/ and in default of payment of fine, further to undergo rigorous imprisonment for one year. He ordered that sentences shall run concurrently.

A case under section 302, IPC and Section 27 of the Arms Act was registered against the appellant on 14th April, 1993 at 9.25 P.M. at P.S. Sadar Abohar vide FIR Exhibit PE/2 on the basis of the statement of Gamdoor Singh (PW2) who is the brother of deceased Iqbal Singh. The statement of Gamdoor Singh was recorded on 14th April, 1993 at 8 P.M. by SI Jagdev Singh (PW6). In his statement, Gamdoor Singh stated that he and his brother Iqbal Singh (deceased) had taken 6 Killas of land on lease from Kirpal Singh and this land is situated near the fields of Ravinder Singh alias Ravi (appellant). He further stated that they had sown Barley crop in their land and had hired a Harvester combine for the harvesting of the barley crop. He further stated that he and his brother Iqbal Singh were coming on the tractortrolley to the fields to harvest barley crop when the tyres of tractortrolley got slipped into the wheat crop field of Ravinder Singh alias Ravi and as a result of which some wheat crop was got trampled. He then stated that on 14th April, 1993 at about 5.30 P.M. when he and his brother Iqbal Singh were talking while standing on the culvert of their fields, appellant Ravinder Singh alias Ravi, resident of Khuban came there is his yellow halfbody jeep; parked his jeep near them and after getting down from the jeep, he started hurling abuses saying, "You have damaged the wheat crop by trampling it and I will teach you a lesson for it.". Then his brother Iqbal Singh told Ravinder Singh that he would be paid for the loss caused to him but Ravinder Singh alias Ravi got enraged and took out a pistol from the right pocket of his pants and fired a shot at his brother Iqbal Singh which hit him on his abdomen below the right side of the chest. His brother fell down as a result of the fire shot. While he was lying down, Ravinder Singh fired another shot which missed him. He raised raula "Marta, Marta" (Killed, Killed). On hearing the report of fire shots, Jagjit Singh S/o, Ujagar Singh and Bagga Singh son of Kaka Singh of the village who were standing near the combine, reached the spot and within their sight, his brother Iqbal Singh succumbed to his injuries at the spot.

The Special report reached the Ilaqa Magistrate at 8.00 A.M. on 15th April, 1993.

S.I. Jagdev Singh (PW6) accompanied by Gamdoor Singh (PW2) and Sarpanch went to the place of the occurrence. There Bagga Singh, Jagjit Singh and PW3 Darshan Singh were present near the dead body which was lying near the culvert on Pahi dividing the fields of the accused and the complainant party. P.W. 6 prepared the inquest report Exhibit PC and entrusted the dead body to Head Constable Kuldip Chand and Constable Jaswinder Singh for getting post mortem examination done. He lifted two empty cartridges of 32 bore pistol and put them into parcel which was sealed and taken into possession vide Memo Exhibit PD/2. He prepared rough site plan Exhibit PK with marginal notes and recorded the statements of the witnesses.

PW1 Dr. L.C. Thukral conducted the post mortem examination on the dead body of Iqbal Singh and found the following injuries on the dead body:

A lacerated punctured wound .7 x .5 cm present on the right hypochondrium in mid clavicular line, 6 cm. from midline below the sub coastal margin. On probing, the direction of wound was downward backwards and towards the left, slight blackening, tatooing was present around the wound, corresponding hole was present in the overlying shirt. On dissection, underlying tissue were congested, clotted blood was present. On further dissection, peritoneal cavity was punctured and on opening peritoneal cavity, about 2000 cc of blood was present. Liver was lacerated anteriourly. Root of messentary was badly damaged and small gut was lacerated. On left side colon was lacerated and opening was present in the peritonum on left in flank. On further dissection bullet was recovered from subcutaneous tissues, clotted blood was present, posteriorly sorts was also lacerated. Small amount of faecal matter was also present in the paritonium cavity.

In the opinion of Dr. Thukral, the cause of death was haemorrhage and shock due to injury caused by firearm which was sufficient to have caused death in due course of nature.

After completion of the investigation challan was filed against the accused.

In support of its case, the prosecution examined 6 witnesses. PW1 Dr. Thukral conducted the post mortem examination on the dead body of deceased Iqbal Singh. PW2 Gamdoor Singh and PW3 Darshan Singh are the eye witnesses. PW4 Amrose Masih Revenue Patwari, Halgqa Khuban prepared the scaled site plan Exhibit PF. PW5 partly conducted the investigation. PW6 SI Jagdev Singh is the main investigating officer.

In this statement recorded under Section 313, Cr.P.C. the appellant pleaded innocence. In reply to question No. 59, he stated as under:

"I am innocent. I was already present in my field. Iqbal Singh came with empty tractor trolley. He took it through my wheat crop. He was all alone. He took it to his combine for putting harvested crop. When I objected to it he stopped the trolley and came to me armed with kirpan and caused two injuries to me. I in my selfdefence made two fires in the air out of which one hit him. I got myself admitted in the Hospital at Malout and was arrested on the evening of 15.4.1993 from the Civil Hospital Malout. I was medicolegally examined at Malout Hospital. He quarrelled with me in my wheat crop field."

In his defence, the appellant also examined DW1 Dr. Sukhvinder Singh Malhi, who medically examined the appellant in the Civil Hospital Malout on 14th April, 1993 at 11 P.M.

It may be pointed out here that Jagjit Singh (uncle of the deceased) and Bagga Singh were given up by the prosecution on the ground that they had been won over by the accused.

Relying on the prosecution evidence, the learned Sessions Judge convicted and sentenced the appellant as stated earlier.

Mr. Cheema, learned senior counsel appearing on behalf of the appellant submitted that there was unexplained delay in lodging the FIR and also in delivering the special report at the place of the Ilaqa Magistrate. He submitted that as per the case of the prosecution, occurrence happened at 5.30 P.M. on 14th April, 1993 in village Khuban in the fields and admittedly there is a Police post in village Khuban itself but the statement Exhibit PE of PW2, Gamdoor Singh was recorded at 8 P.M. i.e. after lapse of 2 hours. He further submitted that the formal FIR was recorded at 9.25 P.M. on 14th April, 1993 and the special report reached the Ilaqa Magistrate at 8 A.M. on the next day i.e. 15th April, 1993.

The learned counsel also drew our attention to the affidavit Exhibit PR of Constable Jagjit Singh and submitted that this affidavit was totally unsatisfactory. He submitted that this constable had stated that he had gone to the place of the Ilaqa Magistrate at night but the premises of the Ilaqa Magistrate was locked and as such he could not deliver the report at 8 A.M. in the morning. He submitted that this constable appears to have kept sleeping till next morning which cannot be believed.

The learned counsel further submitted that according to PW2 Gamdoor Singh, 34 persons were working on the combine near the place of occurrence and these witnesses could have been the best eye witnesses but none of these witnesses has been examined by the prosecution. He further submitted that PW2 Gamdoor Singh in fact was not associated in harvesting process as, in his crossexamination, he clearly admitted that he did not know who was the driver of the combine nor he could give his description, nor he knew their names, nor he knew to which village they belonged nor he knew the owner of the combine. He, therefore, contended that the presence of PW2 Gamdoor Singh at the place of occurrence was highly doubtful.

The learned counsel further submitted that PW3 Darshan Singh, the other eyewitness was the weakest link as he appeared on the scene for a short while. Even PW2, in his crossexamination, had admitted that Darshan Singh had no talk with the combine people and the people of combine had not come to the spot in his presence. He, therefore, contended that Darshan Singh was a chance witness and his statement could not be relied upon. In this connection, he drew our attention to page 119 of the paper book and submitted that this witness had stated that Iqbal Singh was not known to him and it is not understood if Iqbal Singh was not known to him as to how he signed the inquest report which could be signed only by a person who was closely known or related to the deceased.

The learned counsel further submitted that the Public Prosecutor had given the statement before the learned trial Court that Jagjit Singh who was the ucnle of the deceased and Bagga Singh had been given up as they had been won over. He submitted that this was a bald statement and it was doubtful that the real uncle of the deceased could be won over by the accused. He, therefore, contended that these witnesses were dropped by the prosecution with a view to supress the truth and as such an adverse inference should be drawn against the prosecution. In support of the contention, the learned counsel placed reliance on a judgment of the Supreme Court in The State of U.P. and another v. Jaggo alias Jagdish and others, AIR 1971 SC 1586.

The learned counsel also submitted that as per post mortem examination report, slight blackening and totooing was found on the seat of the injury and this shows that there was a distance of one foot between the victim and the barrel. In support of this submission, he placed reliance on the Book ''Firearm in Criminal Investigation'' by D.R. Sharma, 1976 Edition at Page 150. He further submitted that to bring in line with distance shown in the site plan, PW2 Gamdoor Singh and PW3 Darshan Singh improved their version in their statements before the learned trial Court. PW2 submitted that the distance was 3 feet and PW3 submitted that the distance was one foot.

Lastly, the learned counsel submitted that the injuries suffered by the appellant have not been explained by the prosecution. He submitted that the appellant reached Malout Hospital which is at a distance of 25 kms. from the place of occurrence at 10.40 P.M. and the doctor had examined his injury and in fact the doctor did not allow the Police to arrest the appellant when he was under treatment. He, therefore, contended that there was no positive evidence that the injuries of the appellant were selfsuffered.

In the alternative, the learned counsel submitted that in any case this was a case of sudden fight. There was no background of enmity. The occurrence took place in the field of the accused. In view of these facts, no case is made against the appellant under Section 302, IPC and at best the present case could be a case for an offence under Section 304 Part I, IPC. In support of this contention, the learned counsel placed reliance on two judgments of the Supreme Court in Sunder Singh v. State of Rajasthan, AIR 1988 SC 2136 : 1988(1) RCR 617 and Radha Kishan v. State of Haryana, 1987 Cr.L.J. 713.

Mr. Gill, learned Deputy Advocate General, submitted that there was no delay at all in lodging the FIR nor was there any delay in delivering the special report at the place of the Ilaqa Magistrate. He submitted that the occurrence happened at 5.30 P.M. and the statement of PW2 Gamdoor Singh was recorded at 8. P.M. on the same day. He, therefore, contended that there was no delay in lodging the FIR. The learned counsel further submitted that Constable Jagjit Singh, in his affidavit, had clearly stated that the special report was given to him at 10.35 P.M. and he took the special report to the residence of the Ilaqa Magistrate but since the residence of the Ilaqa Magistrate was found locked, he could deliver the report to the Ilaqa Magistrate at 8 A.M. next morning. He submitted that there was no cross examinationexamination on this point and as such the delay, if any, in delivering the special report has been fully explained.

The learned counsel further submitted that Bagga Singh and Jagjit Singh were not the eye witnesses and the dropping of these witnesses did not have any effect on the merits of the case.

As regards the blackening and tatooing at the seat of the injury, the learned counsel submitted that as per the site plan, the distance between ''A'' to ''H'' has been shown as 10''/11''. The learned counsel submitted that it has come in evidence that fire was made at a distance of 3 feet but the deceased after having received the firearm injuries fell down at a distance of 8 feet. Thus there was no discrepancy.

Lastly, the learned Deputy Advocate General submitted that the present case was not a case of selfdefence as there was no provocation from the side of the victim.

We have given our thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the record. From the records we find that there is no delay in lodging the FIR or in delivering the special report at the place of the Ilaqa Magistrate. Admittedly, the occurrence happened at 5.30 P.M. and the statement of PW2 Gamdoor Singh, who is the real brother of the deceased was recorded at 8 P.M. on the same day. Thus, the statement was recorded just within 2 hours from the time of occurrence. It has been proved by the I.O. PW6 Jagdev Singh that he along with certain other police officials was present at the busstand when Gamdoor Singh (PW2) along with one Rakesh Kumar met him and made the statement. The time taken by Gamdoor Singh is quite reasonable as a person whose real brother has been killed is likely to take this time to go and inform the Police. It has also been proved on the record that the formal FIR was recorded at 9.25 P.M. and the special report was entrusted to Constable Jagjit Singh at 10.35 P.M. Constable Jagjit Singh, through his affidavit, has proved that immediately after the receipt of the report, he had gone to the residence of the Ilaqa Magistrate but since the residence of the Ilaqa Magistrate was found locked, he could not deliver the report immediately and he could deliver the same at 8 A.M. next morning. There is no crossexamination on this point. In view of these facts, we find that delay, if any, in delivering the special report has been fully explained. Here reference may be made to Exhibit PB (page 61 of the paperbook) which also indicates that the papers for postmortem sent by SI Joginder Singh were received by the Senior Medical Officer, Civil Hospital, Abohar, at 12.30 A.M. on the night between 14th/15th April, 1993.

As regards the contention of the learned counsel of the appellant that an adverse inference should be drawn against the prosecution for not examining Bagga Singh, Jagjit Singh and persons who were working at the combine as their evidence was essential to elicit correct facts, we do not find any merit in this contention. From the records, we find that Bagga Singh and Jagjit Singh who were working in their respective fields were not the eyewitnesses to the occurrence and their nonexamination was of no significance. PW3, in his statement, has clearly stated that Bagga Singh and Jagjit Singh were 2/3 Killas away from the place of occurrence. As regards the nonexamination of persons who were working on the combine, we find from the evidence of PW2 Gamdoor Singh that combine persons had not come to the spot at that time. Besides PW3, Darshan Singh has also stated in his evidence that he could not talk regarding the booking of the combine as the Foreman of the combine had gone to bring some parts of the combine. From this it is clear that the combine persons were not present at the time of the occurrence.

As regards the contention of the learned counsel for the appellant that slight blackening and tatooing was found at the seat of the injury and as such there was a distance of one foot between the victim and the barrel, whereas in the site plan, the distance between the dead body and the place from where shot was fired, was shown as 10''/11'', we are of the view that there is no substance in this contention. In this connection, reference may be made to the statement of PW2, Gamdoor Singh. This witness has clearly stated that deceased Iqbal Singh fell at a distance of 2/3 karams from the place at which he was fired at. From this, it is clear that there is no discrepancy as alleged by the learned counsel for the appellant. In this connection, reference may be made to a judgment of the Supreme Court in Janak Singh v. State of U.P., AIR 1972 SC 1853. Relevant portion from this judgment is reproduced herein below :

"No doubt the three eyewitnesses gave different distances ranging from two to six paces. But they could hardly be expected to have marked at the time the precise distance at which the person shooting the firearm was. They, therefore, gave an estimate of the distance at which he was from the victim. It is no wonder that the distances they deposed varied. Nothing can, therefore, turn on such variation."

As regards the contention of the learned counsel for the appellant that the injuries suffered by the appellant have not been explained by the prosecution, we find that there is no merit in this contention also. From the evidence of DW1 Dr. Sukhwinder Singh Malhi, we find that the injuries allegedly suffered by the appellant were simple. This witness, in his cross examination, has also admitted that he had given an opinion to the Police, Exhibit PX/1, that the injuries could be selfsuffered.

From the evidence of PW2 Gamdoor Singh and PW3 Darshan Singh, we find that the statements of both these witnesses on all material points are consistent. Both these witnesses have proved that the tractor, which was being driven by deceased Iqbal Singh, had damaged the wheat crop of the appellant and when the appellant came in his jeep to his fields and found that his crops had been damaged by Iqbal Singh deceased, he started hurling abuses at Iqbal Singh and his brother PW2, Gamdoor Singh and immediately thereafter he took out his pistol from the right pocket of his pants and fired at Iqbal Singh hitting him on the right side of his stomach and as a result thereof, Iqbal Singh died. The ocular version as given by PW2 and PW3 finds corroboration from the medical evidence. Besides, as stated earlier, the FIR was lodged promptly. Even the papers of the case for the purpose of conducting the post mortem were delivered to the doctor concerned at 12.30 A.M. midnight. From these facts, we do not find any infirmity in the finding of the learned trial court that the appellant had fired at deceased Iqbal Singh with his firearm and on receipt of the injuries, Iqbal Singh died at the spot.

As regards the alternative argument submitted by the learned counsel for the appellant that the present case at best could be under Section 304, Part I, IPC and not under section 302, IPC, we find from the evidence on record that on the day of occurrence itself, deceased Iqbal Singh and his brother PW2 Gamdoor Singh while taking their tractor trolley to their fields, their tractor trolley entered the fields of the appellant as one of the wheels went in the land of the appellant where wheat crop had been sown. Complainant Gamdoor Singh (PW2) had himself stated in his evidence that this resulted in damage to the wheat crop of the appellant. It has also come on record that at about 5.30 P.M. when the appellant came in his jeep to his fields, he found that his wheat crop had been damaged and he came to know that this damage had been done by deceased Iqbal Singh while he was driving his tractor trolley. In this circumstance, it would not be wrong to assume that the appellant got enraged because of this grave and sudden provocation and took out the pistol from his pocket and fired at deceased Iqbal Singh. Thus, it seems to us that the conviction of the appellant cannot be sustained under Section 302, IPC, and it seems to us that the action of the appellant could reasonably be brought under Section 304, Part I IPC. The view we have taken finds support from the judgments of the Supreme Court in the cases of Radha Kishan (supra) and Sunder Singh (supra).

For the reasons recorded herein above, we modify the conviction of the appellant from Section 302, IPC, to Section 304, Part I, IPC and sentence him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 25,000/. In case of default of payment of fine, the appellant shall further undergo rigorous imprisonment for two years. We further direct that out of the amount of fine recovered, a sum of Rs. 20,000/ would be paid to the dependents of the deceased Iqbal Singh. We, however, maintain the conviction and sentence awarded to the appellant under Section 27 of the Arms Act. We further direct that both the sentences shall run concurrently.