IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.419-SB of 1997 Date of decision: 6th January, 2010 Babu Singh … Appellant Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Daldeep Singh, Advocate for Mr. A.P.S. Deol, Senior Advocate, for the Appellant. Mr. Sudhir Nehra, Additional Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. Babu Singh was the only accused, who was named in case FIR No.26 dated 17.06.1991 registered at Police Station Boha under Section 307 IPC. He is stated to have caused a pistol shot injury to Gurdev Kaur, wife of his elder brother, due to a property dispute. In the above said FIR, after registration of the case, report under Section 173 Cr.P.C. was submitted and the appellant was convicted for offence under Section 307 IPC by the Court of Additional Sessions Judge, Mansa, who sentenced him to undergo rigorous imprisonment for four years and to pay a fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for three months. Brief facts of the case can be gathered from the FIR, which was registered on the basis of statement made by Gurdev Kaur injured. In the present case, occurrence had taken place on 17th June, 1991 at about 10.30 a.m. Statement of Gurdev Kaur was recorded at Civil Hospital, Criminal Appeal No.419-SB of 1997 Budladha on 17th June, 1991 at 4.40 p.m. The statement made by Gurdev Kaur was exhibited as Ex.PF and the formal FIR Ex.PC-1/19 was registered on 17th June, 1991 at 5.30 p.m. and the special report on the same day reached the Illaqua Magistrate at 10.00 p.m. Gurdev Kaur in her statement, which led to registration of the FIR, stated that at the time of occurrence, she along with her son Harjinder Singh, was tilling cotton crop in her field adjoining the fields of Nishan Singh. When the accused Babu Singh, younger brother of her husband, came there and protested as to why her son Harjinder Singh along with his father had reported to the Panchayat regarding the dispute over the plot. The appellant asserted that whatever may, he shall construct the wall in the plot and will resist any obstruction caused by the complainant party, to which Harjinder Singh PW-3 replied that they also have 1/3rd share in the plot and they will not allow the accused to construct the wall. The appellant Babu Singh is said to have retorted that he will settle the dispute once and for all. Then he took out the pistol from the dub of his Pajama and fired towards Harjinder Singh. The shot hit Gurdev Kaur on her mouth and pierced through her left jaw. Gurdev Kaur was taken to the hospital by her husband Sadhu Singh and was got admitted in Civil Hospital, Budladha. The cause of grudge statedly was dispute over the plot, which accused intended to sell to the exclusion of Sadhu Singh and his other brother Modan Singh. Police arrived at the hospital on receipt of a ruqa from the Doctor regarding admission of Gurdev Kaur. On the opinion given by the Doctor that Gurdev Kaur is fit to make statement, her statement Ex.PF was recorded, the gist of which has been narrated above. After registration of the case, FIR was investigated, report under Section 173 Cr.P.C. was submitted and the accused was committed to the Court of Additional Sessions Judge, Bathinda, who on 31st October, 1991 framed the charge for offence under Section 307 IPC against the appellant on the ground that 2 Criminal Appeal No.419-SB of 1997 on 17th June, 1991 at about 10.30 a.m. in the area of village Rori Khurd, the appellant has caused pistol shot injury to Gurdev Kaur with an intention to cause her death. The appellant pleaded not guilty and claimed trial. Prosecution examined PW-1 Dr. Pritpal Singh, Medical Officer, who was then posted at Primary Health Centre, Budladha. He deposed that on 17th June, 1991 at 2.00 p.m. he medico legally examined Gurdev Kaur, aged 45 years and has found following injuries on her person: 1. Lacerated wound ½ cm x ½ cm on labial surface of left angle of mouth. Margin inverted Clotted and fresh blood was present. 2. Lacerated wound ¾ cm x ¾ cm on left side of face over angle of jaw. Margin everted. Clotted and fresh blood was present. The Doctor further opined that on probing, injuries No.1 and 2 were through and through. As per the opinion of the Doctor the injuries were simple in nature. He further gave an opinion that injuries No.1 and 2 were possible with gun shot pellets. However, in cross examination, he stated that possibility of these injuries being caused by Sua blow cannot be ruled out. Gurdev Kaur injured appeared a PW-2 and reiterated what was stated by her in the FIR. In cross examination, she stated that on the day of occurrence, she along with her son had gone to the field for hoeing the Narma crop and had taken Kassis from the house for that purpose. She further admitted that Sadhu Singh reached at the spot on the receipt of message, which was sent through a boy. She further admitted in the cross examination that while going to village Budladha, village Maghania, Sher Khan and Boha fall on the way and her son Harjinder Singh was dropped at Boha for lodging the report with the police and police accompanied them to Budladha Hospital. She further admitted that the shot was fired from a distance of 2 Karms. 3 Criminal Appeal No.419-SB of 1997 Harjinder Singh, son of Gurdev Kaur, appeared as PW-3 and stated that at the time of occurrence, 3-4 persons were present. He expressed his inability to tell their names. He denied that any attempt was made by him to cause injury to the accused by Kasia. He had also not admitted that he had gone to Police Station Boha to report the matter. A discrepancy, which surfaceed in the testimony of Harjinder Singh PW-3 and PW-2 Gurdev Kaur regarding Chunni and Jutti of Gurdev Kaur, has been highlighted by counsel for the appellant. According to Gurdev Kaur, her Chunni and Jutti had fallen at the spot when she suffered injury. Whereas, Harjinder Singh stated that Chunni and Chappal of his mother had not fallen on the ground. He stated that Chunni and Chappal of his mother remained intact on her head and in the feet. Besides the above said two eye witnesses, prosecution examined PW-4 Vijay Kumar Patwari, who prepared the scaled site plan Ex.PF. PW-5, HC Gurjant Singh had tendered his affidavit Ex.PG and PW-6 Constable Sukhwinder Singh tendered his affidavit Ex.PH to prove link evidence. They were not cross examined. Thereafter, PW-7 ASI Surinder Mohan was examined and the prosecution evidence was closed. Surinder Mohan ASI PW-7 deposed regarding the receipt of information about the admission of Gurdev Kaur in the Civil Hospital, Budladha, his reaching there and recording of the statement. He further deposed that he received copy of MLR Ex.PA. He filed application Ex.PC to enquire about the fitness of Gurdev Kaur and after obtaining opinion Ex.PC/1 that she was fit to make statement, he had recorded statement of Gurdev Kaur Ex.PF. He further stated that the injured produced before him, her Chunni and Shirt, which were blood stained, and were taken into possession. After recording of the statement of Gurdev Kaur, he had proceed to the spot along with Harjinder Singh and had prepared the site plan. Various other necessary steps taken by the Investigating Officer in the course of investigation were also narrated. He further stated that accused was 4 Criminal Appeal No.419-SB of 1997 arrested on 3rd July, 1991 and on his personal search, one pistol, along with three live cartridges, was recovered. Pistol, along with three cartridges Ex.P4, P5 and P6 were taken into possession vide memo Ex.PL. Investigating Officer admitted in the cross examination that a separate FIR No.32 dated 3rd July, 1991 for recovery of pistol was registered. He denied the knowledge whether in the case under Arms Act, accused was acquitted or not. However, he submitted that Chunni Ex.P1 and Shirt Ex.P2 were taken into possession and were sealed in a parcel. After closure of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. All incriminating circumstances were put to him and the same were denied. The appellant took a stand that he was innocent and was falsely implicated. In defence, accused examined DW-1 Sohan Singh to say that his house adjoins the house of Gurdev Kaur and no incident had taken place on the day of occurrence. Defence evidence was closed and copy of judgment Ex.DA was tendered by the accused. Mr. Daldeep Singh, appearing for the appellant, has stated that the Doctor had opined in cross examination that possibility of injuries No.1 and 2 being caused by Sua blow cannot be ruled out. Counsel has stated that injury suffered by Gurdev Kaur was simple in nature and was caused by blunt weapon, therefore, the offence falls under Section 323 IPC. It was further submitted that according to the prosecution, shot was fired from a distance of 2 Karms, therefore, the shot from such a distance with its velocity would cause much more harm than the injury suffered by Gurdev Kaur. It is submitted that due to property dispute, not only appellant has been falsely implicated but prosecution has changed the weapon of offence to aggravate the offence. After giving thoughtful consideration to the arguments advanced by counsel for the appellant, this Court is not inclined to accept the same. In the present case, occurrence had taken place at 10.30 a.m., 5 Criminal Appeal No.419-SB of 1997 Gurdev Kaur was examined at 2.00 p.m., her statement was recorded at the hospital at 4.40 p.m., case was registered at 5.30 p.m. and the special report reached the Illaqua Magistrate at 10.00 p.m. Therefore, the prosecution version is not only prompt but spontaneous also. So the same can be said to be free from blemish of consultations and deliberations. The appellant is closely related to the injured, being her Dewar (husband’s younger brother). The appellant had reached at the fields where the injured was working along with her son. It is a day-light occurrence. The prosecution has not inflated the number of accused. Having suffered the injury, Gurdev Kaur and her son Harjinder Singh will be the last persons to name anybody else except the person, who has caused the injury. Therefore, there is no doubt that the appellant is guilty of having caused injury to Gurdev Kaur. Even though, the injury is simple in nature, the seat of injury in the present case assumes importance. The shot was fired on the face. It has caused injury and pellets had pierced through the jaw. Injuries No.1 and 2 are through and through. Even though the Doctor has not stated which injury was entry wound and which was exit wound, but it is quite evident that margins of injury No.1 were inverted and margins of injury No.2 were everted. Thus, injury No.1 was entry wound and injury No.2 was exit wound. The very promptness in lodging of the FIR rules out any substitution of the accused and the weapon. The suggestion that the possibility of the injury being caused with Sua blow cannot be ruled out, has not been substantiated and has been raised for the sake of an argument, without laying any foundation. The evidence of Gurdev Kaur injured and her son Harjinder Singh aspires confidence. Therefore, this Court has no other option except to maintain the conviction. Mr. Daldeep Singh has further stated that in the present case, since the injury was simple in nature, no offence under Section 307 IPC is made out and the appellant can be held guilty for offence under Section 323 IPC. This argument is also devoid of any merit. The pistol shot was 6 Criminal Appeal No.419-SB of 1997 fired on the face of the injured. The very location of the injury, the weapon used and accompanying circumstances prove the intention of the accused. Hence, the argument regarding the change of offence is also liable to be rejected. Counsel for the appellant has further urged that in the present case, occurrence has taken place in year 1991 and thereafter, appellant has committed no offence and his sentence should be reduced to already undergone on the ground that he has already suffered mental agony and pain of protracted trial. This Court cannot become oblivious of the fact that the appellant has used fire arm and caused injury to a lady, who was none else but wife of his elder brother. However, to balance the mitigating and aggravating circumstances, this Court is of the view that protracted trial can be construed as one of the mitigating circumstances. Therefore, the sentence awarded to the appellant can be reduced from four years rigorous imprisonment to three years rigorous imprisonment, maintaining the sentence of fine and the default clause. With the observations made above, present appeal is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE January 6, 2010 rps 7