Surjan Singh vs Suraj Pal

A.S. Nehra, J.

This revision petition is directed against the judgment dated May 15, 1986 passed by the Additional Sessions Judge, Gurgaon by which respondent was acquitted under Section 307 of the Indian Penal Code but was convicted under Section 338 of the Indian Penal Code. Respondent was also convicted under Section 337, Indian penal Code. Respondent was granted benefit of Probation of offenders Act and he was released on probation on his furnishing personal bonds in the sum of Rs. 5000/ with one surety in the like amount for a period of one year. He was further directed to pay a sum of Rs. 1500/ as compensation to the petitioner and a sum of Rs. 250/ as compensation to Prem injured.

The prosecution story, in brief, is that on August 18, 1985 at about 6.45/7.00 p.m. Arjun Singh resident of village Teekli was present on Chabutra in front of his house and at that time Surjan Singh, petitioner, Suraj Pal, accusedrespondent, and members of this family, Mange Ram, Daya Nand and Raghbir Singh were also present and they had gathered on that evening because Suraj Pal respondent was alleged to have reprimanded his daughter Nirmala Devi and on that account she was alleged to have left her house. The afore mentioned persons had gathered on that evening in order to discuss the ways and means to search the missing girl. In the meanwhile Suraj Pal, respondent, who was under the influence of liquor, and who was armed with his 12 bore gun, stood by the side of Surjan and Mange etc. and fired a shot from his gun, hitting on the right knee and thigh of Surjan Singh and the pellets also hit Prem son of Arjun Singh, who was also standing there by chance. As per prosecution case, the respondent threw his gun and ran away. Both, Surjan Singh and Prem were rushed to civil Hospital, Gurgaon, where they were medically examined. Prem was discharged from the hospital after medical aid and medicolegal examination while Surjan Singh was admitted in the hospital. Arjun Singh, thereafter left for the police station to lodge a report but on the way ASI Gulshan Rai met him at Badshahpur and he recorded the statement of Arjun Singh at 10.30 p.m. on that day, and sent the same to police station Sadar Gurgaon for registration of a case, on the basis of which, formal FIR was recorded.

The prosecution in support of its case examined as many as nine witnesses.

Dr. (Mrs.) N.L. Singh, PW 1 medicolegally examined Surjan Singh and Prem, both injured and found two and one injuries respectively on their persons. She also took into possession the Pajama, which Surjan Singh was wearing at that time and also removed some foreign body from the person of Surjan Singh and handed them over to police. D. D. Parashar. PW 2, who radiologically examined Surjan Singh, found fracture of his shaft lower part right femur with multiple rounded and irregular radio opaque shadows. He also testified his report, Ex. PC given in this behalf.

The statement of S.I. Nafe Singh, PW3 is of formal nature because according to him on receipt of Ruqa Ex. PD, he made his endorsement, Ex. PD/1 thereon and recorded formal FIR Ex. PD/2 and also deposed that he prepared final report under section 173 Cr.P.C.

So far as Manohar Lal PW 4 is concerned, he has deposed that he produced a 12 bore gun and a bandolier containing 14 cartridges before the police at the spot and in addition, one empty cartridge lying on the ground was also produced by him before the police and the police took all these articles into possession. He also testified that bloodstained earth was also lifted by the police and after making into sealed parcel, it was taken into possession.

Sat Narain, Draftsman, PW 8 was produced by the prosecution to prove the scaled plan, Ex. PK prepared by him while A.S.I. Gulshan Rai, PW9, is the investigating officer of this case. He has deposed that Arjun Singh made statement before him which was, Ex. PD according to him, he forwarded the same to the police station for registration of a case. He also testified having lifted blood stained earth from the spot and added that Manohar Pal, produced the gun and one cartridge and a bandolier containing 14 cartridges and they were taken into possession.

The testimony of Surjan Singh PW5, Arjun Singh PW6 and that of Mange Ram PW7 being of importance, shall be discussed in the coming paragraphs of this judgment.

In his statement under Section 313 Cr.P.C. Suraj Pal accused respondent while admitting his presence on the Chabutra in front of the house of Surjan Singh, petitioner, on August 18, 1985 at 6.30/7.00 p.m. denied that he fired the shot intentionally in order to kill Surjan Singh. On the other hand the respondent stated that he was under the influence of liquor at that time and he was holding his licenced gun. The accused respondent further added that the gun went off accidentally as he was under the influence of liquor and he had no intention of firing a shot deliberately to injure any one. He further added that the injured were his near relations and that he has been falsely challaned under Section 407 of the Indian Penal Code. He, however, did not choose to lead any evidence in his defence, although an opportunity was given to him to do so.

Surjan PW has stated that on August, 18, 1985 when he was standing on Chabutra in front of his house alongwith other members of his family and when he was talking to them about his having accompanied Jai Ram to village Sakatpur in search of Nirmala Devi daughter of Suraj Pal accused, who had left her home after she was given beatings by the accused and when he was telling about the clue found by him about the missing girl, Suraj Pal accused, who was standing by his side at that time, had proclaimed that he would kill some one on that day. Thereafter, he went inside his house, brought his gun and bandolier containing 14 cartridges and after asking Chamandi, his uncle, to get away, fired a shot from his gun hitting Surjan Singh at his knee and thigh.

Arjun Singh PW6, is a witness at whose instance this case was registered and he also made a statement that as the accused had reprimanded his daughter, Nirmala Devi, she left her home and that on August 18, 1985 they were talking about the missing girl while standing in front of Surjan Singh. He further stated that Suraj Pal accused respondent then fired a shot from his gun, hitting at the knee of Surjan Singh and a pellet also hit Prem, PW. He also stated that he went to the police station for registration of a case and at Police Post Badshapur, he made his statement, Ex. PD.

Mange Ram PW7 has also substantially made a similar statement with some variations hither and thither.

As already stated above, Suraj Pal accused had admitted in his statement under Section 313 Cr.P.C. that he was present in front of the house of Surjan Singh petitioner on August 18, 1985 at 6.30/7.00 p.m. when other persons also collected there. The respondent accused, however, denied the prosecution version and stated that he was holding a gun at that time and he had come from outside. He further stated that since he was under the influence of liquor, the gun went off accidentally and he had no intention to fire a shot from the gun deliberately to injure some one, much less the PWs, who were his near relations.

Arjun Singh PW6, who is the architect of this case, has admitted, in his crossexamination that he got recorded in his statement, Ex. PD, that Suraj Pal was heavily drunk at the relevant time and he also admitted having recorded in that statement that the accused fired shot while being under the influence of liquor. He, however, denied having stated in his statement, Ex. PD to the police that Surjan and his son Prem sustained injuries as a result of in advertent firing of the shot from the gun by the accused due to his being under the influence of liquor. Arjun Singh PW6 was confronted with the portion A to A of his statement Ex. PD wherein it was so recorded but no explanation was forthcoming from Arjun Singh for this discrepancy.

There is no cogent evidence on the file to prove the intention of the accused respondent to kill some one or to prove his knowledge that if he by his act had accused death, he would be guilty of murder. The injuries suffered by the petitioner and Prem were all on nonvital parts of their bodies. It is settled law that mere fact that a gun had been used by the accused for causing injuries, will not necessarily prove the case under Section 307 IPC and there can be no presumption that the accused intended to cause death of Surjan Singh merely because he used firearm to cause him hurt. The intention of the accused has to be established from either the nature of his act actually committed by him or from other surrounding circumstances. Where the injury has actually been caused to the victim the prosecution, while attempting to establish that the real intention of the accused was to cause an injury of the nature which was sufficient in the ordinary course of nature to cause death, or was so imminently dangerous, that it would cause death, has to establish the intention or knowledge of the accused, as contemplated under Section 307 IPC. In the case of Badshah Singh v. State, AIR 1958 Allahabad, 677 the Allahabad High Court reiterated the law on the subject as follow :

"For liability under Section 307, the prosecution has to prove the following facts: (1) that the accused did an act and (2) that the act was done with such intention or knowledge and under such circumstances that if he by that act caused death, he would be guilty of murder."

The Supreme Court in Sarju Parshad v. State of Bihar, 1965 SC 843 held that the mere circumstances that a firearm was used to cause injury to victim would not be sufficient to establish that the accused had committed the offence punishable under Section 307 IPC and further evidence has to be led by the prosecution to establish the intention of the accused to cause death, or his knowledge as envisaged under Section 300 IPC, and the burden of proof is on the prosecution and not on the accused.

In the instant case, as both the injured had received all the injuries on nonvital parts of their bodies, the possibility that Suraj Pal respondent, who was armed with a gun, did not intend to cause any injury on any vital part of the body of Surjan Singh or that of Prem, who was admittedly present there by chance, cannot be ruled out because had he intended so, he would have fired the shot hitting Surjan Singh on the vital parts of his body. It was got recorded by Arjan Singh in the FIR that at the relevant time, the accused was heavily drunk and that the accused fired the shot while being under the influence of liquor. It was also recorded in the FIR that the shot was fired accidentally by the accused because of influence of liquor, and although Arjun Singh, PW 6, has denied having stated so in the FIR, but his attention was drawn to portion A to A of Ex. PD and the fact remains that Arjun PW6 could not offer any explanation for this discrepancy. It appears that the accused had fired the shot due to the influence of liquor on Surjan Singh, he could have easily aimed the shot hitting on the vital parts of the body of petitioner, Surjan Singh.

In view of the above discussion, no case under Section 307 IPC is made out against the accusedrespondent.

There is no merit in the revision petition and the same is dismissed.