State of Punjab vs Jagtar Singh and others

H.S. Bedi, J.

This appeal is directed against the judgment dated 3rd December, 1988, rendered by Sh. Iqbal Singh, Additional Sessions Judge, Ferozepore. The appeal arises out of the following facts :

Nishan SinghPW6 was residing in a Dhani situated in the revenue estate of village Chamba, District Ferozepore. At about 8 p.m., on 2nd November, 1987, Jagtar Singhthe appellant came there in a drunken condition and gave a Lalkara while coming out from the Dhani of Joginder Singh, his nephew. He was, however, asked not to do so and then he went on towards the village on a tractor. At about 9 p.m., the same evening, Jagtar Singh armed with 12 bore single barrel licensed gun, his fatherinlaw Karnail Singh armed with 12 bore gun and Jarnail Singh, Jaswant Singh, Shabeg Singh and Kulwant Singh, all brothers of Jagtar Singh armed with dangs came to the Dhani of Nishan Singh and started hurling abuses. On hearing the raula he himself, his son Karnail SinghPW7 and his wife Balwinder KaurPW8 came out and stood outside the main gate of the Dhani. Jagtar Singh and Karnail Singh started firing from their guns and the shots hit the three witnesses on various parts of their bodies. On a raula raised by them, all the assailants left with their respective weapons. The injured were, thereafter, removed by Hardip Singh to the Civil Hospital, Makhu, where they were medico legally examined by Dr. Gian SinghPW1 at about 005 a.m. on 3rd November, 1987. The doctor also sent ruqa Ex. PG to the Police Station, Makhu and on receiving the same ASI Cheta Singh PW9 came to the hospital and recorded the statement of Nishan Singh Ex.PQ which formed the basis of the formal First Information Report registered at Police Station, Makhu at 2 a.m. the same night with the special report having been delivered at Zira at 7 a.m. on 3rd November, 1987. The ASI also went to the spot and took into possession two empty cases of fired cartridges from the barseen field of Joginder Singh and two more empty cases of fired cartridges from the kacha path adjoining the canal minor. The investigation was, thereafter, taken up by SI Nachhattar SinghPW10, who arrested all the accused other than Karnail Singh on 10th November, 1987 who too was arrested on 14th November 1987. The gun Ex.P5 recovered from Jagtar Singh was sent to the Forensic Science Laboratory, for test. At the commencement of the trial, all the accused pleaded their innocence and claimed trial.

In order to prove the guilt of the accused, the prosecution examined PW1 Dr. Gian Singh, PW2Dr. K.S. Sandhu, who conducted Xray examinations of the three injured and found radio opaque shadows in their bodies, the three injured witnesses PW6Nishan Singh, PW7Karnail Singh and PW8Balwinder Kaur and the two investigating officers PW9Cheta Singh ASI and PW10Nachhattar Singh SI.

When examined under Section 313 of the Code of Criminal Procedure, the accused denied the prosecution allegations and pleaded false implication. The trial Court came to the conclusion that it appeared from the medical evidence as also from the fact that no weapon had been recovered from Karnail Singh accused, that his involvement was doubtful; that only one shot had been fired and that too by Jagtar Singh, that only Lalkaras had been attributed to the other accused and, therefore, their presence at the place of incident was suspected. The trial Court also found by relying on the judgment of the Supreme Court reported as Ved Pal v. State of U.P., 1986 SSC (Crl), 131, the offence committed by Jagtar Singh also fell under Section 324 of the Indian Penal Code as there was nothing on record to show as to the distance from which the shot had been fired by him and as the injuries were superficial in nature, it could not be said that there was any intention on his part to cause the death of the three injured. Having held as above, the trial Court convicted Jagtar Singh for an offence under Section 324 of the Indian Penal Code on three counts and sentenced him to undergo imprisonment for one year and to pay a fine of Rs. 100/ and in default thereof to further undergo RI for one month more but acquitted all the other accused.

Two appeals have been filed against the judgment of the trial Court; Criminal Appeal No. 400DBA of 1989 by the State of Punjab against the acquittal of all the accused for the offence under Section 307 of the Indian Penal Code, whereas Criminal Appeal No. 540SB of 1988 by Jagtar Singh, challenging his conviction under Section 324 of the Indian Penal Code. Both these appeals are being disposed of by this judgment.

We have gone through the evidence of the case very carefully with the help of the learned counsel for the parties. The incident in question took place at 9 p.m. on 2nd November, 1987 and the First Information Report was lodged within a couple of hours and the special report too delivered at 7 a.m. on 3rd November, 1987 as fully detailed above. In the FIR full details with regard to the assault and the method of attack have been spelt out. However, despite the prompt FIR, the trial Court gave the benefit to some of the accused for the reasons that have been delineated above and need not be repeated. In an appeal against acquittal, we would be hesitant to interfere with the findings recorded by the trial Court, more particularly as the matter pertains to the year 1987. We, however, find that the acquittal of Jagtar Singh for the offence under Section 307 of the Indian Penal Code is a clear exceptional circumstance which calls for our interference. Mr. Gill has highlighted that the finding of the trial Court that the distance from which the shots were fired was not known, is contrary to the record as it has been clearly stated by Balwinder KaurPW8 that fire had taken place from a distance of about 20 karams and from this, it is evident that the shots were fired within the effective range of a shot gun which would be about 30 to 35 yards. He has also urged that intention by itself cannot be the determining factor in a case under Section 307 of the Indian Penal Code.

We have considered this argument of the learned State counsel and find that it has merit. Even assuming that only shot had been fired by Jagtar Singh, yet it is apparent that it was within the dangerous range of a shot gun and the finding that the distance was unknown, was, in fact, erroneous. The presence of the injuries on the person of the three injured further indicate that shot was fired in a situation that if death had been caused, the accused would have been liable for murder.

Mr. Khaira, learned counsel appearing in support of the appeal filed by Jagtar Singh has, however, urged that the witnesses had not been able to identify the accused as it was a dark night and that because the firing had taken place from a long distance even Jagtar Singh accused was entitled to acquittal.

We have considered this argument of the learned counsel and find no merit in it. The three witnesses have clearly deposed that Jagtar Singh had used his weapon and this fact is corroborated by the recovery of the weapon of the offence at the time of his arrest. The witnesses have also given details with regard to the motive that impelled the crime and the presence of a light in the courtyard, where the injuries were caused indicated that there was reason for the witnesses to be present for them to identify the assailants. The trial Court has nevertheless chosen to acquit all the accused other than Jagtar Singh and we find absolutely no reason to interfere in favour of Jagtar Singh now. We, therefore, partly allow Criminal Appeal No. 400DBA of 1989 and while dismissing the same with regard to the involvement of the accused other than Jagtar Singh, we convert his conviction to one under Section 307 of the Indian Penal Code and sentence him to undergo RI for two years under that Section and to pay a fine of Rs. 5,000/ and in default thereof, to further undergo RI for six months, whereas Criminal Appeal No. 540SB of 1988 filed by Jagtar Singh is dismissed.