Crl.Appeal No.685-SB of 2002 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Date of decision:4.10.2010 (I) Crl.Appeal No.685-SB of 2002 Jagir Singh ... Appellant versus State of Punjab ... Respondent (II) Crl.Appeal No.686-SB of 2002 Jagir Singh ... Appellant versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Sanjay Majithia, Sr.Advocate, with Mr.Shailendra Sharma, Advocate, for the appellant. Mr.Arshwinder Singh, DAG, Punjab. ... JORA SINGH, J. Crl.Appeal No.685-SB of 2002 and Crl.Appeal No.686-SB of 2002 were preferred by Jagir Singh son of Arjan Singh to challenge the judgments of conviction and orders of sentence dated 2.3.2002 rendered by Additional Sessions Judge (Adhoc), Patiala, in Sessions Case No.37T/16.10.1995, arising out of FIR No.57 dated 8.7.1995 under Sections 148/307/149 IPC and Sections 27/54/59 of Arms Act, Police Station Julkan. By the said judgment, he was convicted under Section 307 IPC and Section 27 of Arms Act and sentenced to undergo RI for three years and to pay a fine of Rs.1,000/- under Section 307 IPC and to undergo RI for one year under Section 27 of Arms Act. Crl.Appeal No.685-SB of 2002 2 Sentences imposed were ordered to run concurrently. Co-accused Jagroo @ Jagan Nath, Satpal, Gurvinder and Gurbachan Singh were acquitted of the charge levelled against them. Against acquittal, no appeal by the State. Prosecution story, in brief, is that Gurnam Singh, complainant, lodged report with the police on 8.7.1995 on the allegation that he was in possession of land measuring about 3 acres for the last more than 20 years. He was regularly paying lease money to the panchayat. Jagir Singh claimed himself to be owner of the land. His son Jarnail Singh was also present there. Second son Sucha Singh came to the fields at about 9.30 AM. Jagir Singh armed with .12 bore gun and Gurbachan Singh armed with a pistol came on a scooter. Scooter was parked on the road and came towards the complainant. In the meantime, Dalwinder Singh and Jagroo also came on a tractor driven by unknown person, aged about 30/32 years. Dalwinder Singh and Jagroo were armed with gandasi. After alighting from the tractor, Gurbachan Singh raised lalkara that today Gurnam Singh be taught a lesson for cultivating the land. Then Jagir Singh armed with .12 bore gun fired a shot hitting on the abdomen, chest, left shoulder and left hand of Gurnam Singh. On receipt of fire arm injury, complainant fell down. Sons of Gurnam Singh raised lalkara and on hearing raula, Balbir Singh came at the spot. After that, accused had fled away from the spot with their respective weapons. Gurnam Singh was shifted to Rajindra Hospital, Patiala, by his sons Jarnail Singh and Sucha Singh. From Rajindra Hospital, Patiala, intimation was sent to the concerned police station and on receipt of information regarding admission of Gurnam Singh, ASI Baldev Singh had gone to Rajindra Hospital, Patiala. Crl.Appeal No.685-SB of 2002 3 After getting opinion from the doctor regarding fitness of the injured, statement of Gurnam Singh (Ex.PD) was recorded. After making endorsement, statement was sent to the police station, on the basis of which, formal FIR was recorded. Appellant was arrested. Weapon of offence was recovered. After completion of investigation, challan was presented in Court. Accused was charged under Section 307 IPC and Section 27 of the Arms Act, to which he pleaded not guilty and claimed trial. After some evidence, application was moved under Section 319 Cr.P.C. to summon the accused shown in Column No.2 of report under Section 173 Cr.P.C. Application was allowed. Jagroo, Satpal, Gurinder and Gurbachan Singh were summoned to face trial along with the appellant. After appearance of the accused summoned under Section 319 Cr.P.C., accused were charged under Sections 307/148/149 IPC, to which they pleaded not guilty and claimed trial. Prosecution examined number of witnesses. PW1 ASI Rajinder Singh on receipt of ruqa (Ex.PA) had recorded FIR (Ex.PA/1). PW2 Inspector Kuldip Kumar had submitted report under Section 173 Cr.P.C. PW3 Gurnam Singh, complainant-injured, stated on oath that he was in possession of the land for the last 20 years. Land was of the panchayat. His sons Jarnail Singh and Sucha Singh were also present with him. Jagir Singh and Gurbachan Singh came on a scooter. Jagir Singh was armed with .12 bore gun and Gurbachan Singh was armed with a pistol. Scooter was parked on the road. They both came towards him and Crl.Appeal No.685-SB of 2002 4 questioned as to why he was cultivating the land because the land was purchased by Jagir Singh. In the meantime, Jagroo, Satpal and Gurvinder came on a tractor. Tractor was parked near the land. Gurbachan Singh raised lalkara to teach a lesson to him for cultivating the land. Jagir Singh armed with .12 bore gun fired a shot hitting his front portion of the body. Raula was raised, then accused had fled away from the spot with their respective weapons. PW4 Jarnail Singh is the son of complainant and supported the version of complainant by saying that in his presence, injuries were caused to the complainant by firing shot with .12 bore gun by Jagir Singh. PW5 Amarjit Singh, Jr. Assistant, Office of DC, Patiala, stated that licence of .12 bore gun was issued on 3.4.1981 in the name of Jagir Singh. PW6 HC Satnam Singh tendered his affidavit (Ex.PD). PW7 Rachhpal Singh, Kanungo, stated that Gurnam Singh was in possession of land on chakota payable to the panchayat. Ex.PW7/A is the copy of girdawri. Copy of scaled map is Ex.PW7/B. PW8 Nasib Chand, Clerk of DTO office, Patiala, stated that RC of tractor was in the name of Jagir Singh. PW9 ASI Baldev Singh is the Investigating Officer. PW10 Constable Sukhdev Singh tendered his affidavit (Ex.PW10/A). PW11 Dr.Brij Mohan Singh stated that Gurnam Singh was operated upon by him with the help of other doctors. Ex.PC is the copy of bed head ticket. Entry in the bed head ticket is Ex.PC/1. Injured was discharged on 15.7.1995. One pellet was removed from the body of Gurnam Singh. Crl.Appeal No.685-SB of 2002 5 PW12 Dr.Neel Kamal had declared Gurnam Singh, injured, fit to make statement on 8.7.1995 at 8.50 PM. Dr.A.S.Joshi had medico legally examined Gurnam Singh and noticed the following injuries on his person:- “1. Lacerated wound .5 cm in diameter on anterior side of right side of chest about 9 cm from right shoulder and 10 cm from nipple. Edges irregular, inverted with abrasion collar on right side. No scorching, blackening or tattooing seen. Fresh bleeding on cleaning with gauze seen. 2. Lacerated wound 0.5 cm in diameter on anterior side of left side of chest about 3 cm below collar bone and 5 cm from sternum. Wound edges are irregularly torn, inverted with abrasion collar extending towards right margin of the wound. Fresh bleeding on cleaning with gauze present. No blackening or tattooing seen. 3. Lacerated wound on front of left shoulder 0.5 cm in diameter about 2 cm from tip of the shoulder. Margins are torn irregularly inverted with abrasion collars extending to right. No blackening or tattooing seen. Fresh bleeding on cleaning with gauze present. 4. Lacerated wound 0.5 cm in diameter on anterior surface of left side of chest about 5 cm below injury No.3. Edges are irregularly torn, inverted with abrasion collar extending towards right. No blackening or tattooing seen. Fresh bleeding on cleaning with gauze present. 5. Lacerated wound 0.5 cm in diameter present on Crl.Appeal No.685-SB of 2002 6 right side of chest inner to the posterior axillary line at about the level of the nipple. Edges are irregularly torn, inverted. No blackening or tattooing was seen. Fresh bleeding on cleaning with gauze present. 6. Lacerated wound about 0.5 cm in diameter on extensor aspect of left hand near the base of the middle finger. Edges are torn inverted. No blackening or tattooing seen. Surrounding area is edematous. Fresh bleeding on cleaning with gauze present. 7. Lacerated wound on anterior abdominal wall towards left side about 12 cm from left anterior, superior aliac spine and 7 cm from umbilicus at a level higher than that of umbilicus 0.5 cm in diameter. Edges irregularly torn. No tattooing blackening seen. Abrasion collar extending towards right side of the wound for 1.5 cm seen. Fresh bleeding present.” After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the appellant was that he was in possession of the land on the basis of registered sale deed dated 2.2.1993. Mutation was sanctioned in his favour. He was in possession of the land prior to 8.7.1995 as per entries of khasra girdwari and jamabandi (Ex.DX, Ex.DY and Ex.DZ) respectively. Complainant party had no concern with the land. False case was got registered only to pressurise him in civil litigation regarding land. Crl.Appeal No.685-SB of 2002 7 In defence, copies of khasra girdwari, sale deed and rapat roznamcha (Ex.DXX, Ex.DYY and Ex.DZZ), respectively were tendered. After hearing learned PP for the State, learned defence counsel for the accused and from the perusal of evidence on the file, accused was convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on the file. Learned defence counsel for the appellant argued that land owned by the proprietors of the village in the revenue record was wrongly shown as land of Gram Panchayat. Land was purchased by the appellant vide registered sale deed. Appellant was in possession of the land prior to 8.7.1995. There was litigation amongst the parties. Warrant of possession was issued against the complainant. As per order of the Court, appellant was in possession. In case Court is of the opinion that Gurnam Singh was in possession of the land, then only one shot was fired from a distance of 25 karams. Shot was not repeated. Gurbachan Singh was also armed with pistol. Jagroo and Gurvinder were armed with gandasi but no injury was caused either to the complainant or his sons by the accused, who were acquitted by the trial Court. If intention of the accused was to murder, then Jagroo, Gurvinder and Gurbachan Singh fully armed with gandasi and pistol could easily cause injuries to Gurnam Singh and his sons. Jagir Singh, appellant, armed with .12 bore gun was also expected to repeat the shot. That means, there was no intention to murder. There was litigation amongst the parties before the occurrence. Due to party faction, appellant was named. Gurnam Singh while appearing in Court as PW3, then stated that he cannot say whether proceedings qua land were pending before Crl.Appeal No.685-SB of 2002 8 DDPO/Collector. Then stated that he cannot tell whether warrant of possession was issued by the Collector or not. Complainant admitted that land was on lease with him. Every year, land was auctioned but no documentary proof on the file that Gurnam Singh was paying lease money to anyone. Gurnam Singh admitted that about 18/20 years back, he had taken the land on lease and was in possession of receipts as well as lease deed, but no document was produced. In the last lines of his cross- examination, admitted that after 1995, Panchayat stopped taking lease money from him. He admitted that there was civil litigation amongst the parties. Proceedings under Section 145 Cr.P.C. were also initiated. Application for correction of entries in khasra girdwari was decided in favour of the appellant. He cannot tell whether land was purchased by the appellant. So, statement of Gurnam Singh shows that there was litigation amongst the parties. Shot was fired from a distance of 25 karams. Shot was not repeated. Doctor stated that injury No.2 was dangerous to life. Dangerous to life means injured could have died but for medical aid. No definite opinion of the doctor that injury was dangerous to life and injury was sufficient in ordinary course of nature to cause death. If story is accepted to be correct one, then appellant is liable for punishment under Section 326 IPC and not under Section 307 IPC. Learned State counsel argued that appellant was armed with .12 bore gun. There was dispute amongst the parties regarding possession of land. In case appellant had purchased the land, then possession was to be taken legally and not forcibly. Shot was fired by aiming gun towards the complainant. So, intention was to murder. Appellant was rightly convicted. Evidence on the file shows that disputed land was shown to be Crl.Appeal No.685-SB of 2002 9 owned by Nagar Panchayat. In column No.5 of jamabandi, Gurnam Singh was shown to be in possession. Ex.PW7/A to Ex.PW7/9 are the copies of khasra girdwaris. As per revenue record, earlier Nagar Panchayat was shown to be the owner of the land. Note with red ink is to the effect that mutation was sanctioned in favour of different persons. Rapat 373 dated 3.2.1995 with red ink is to the effect that possession was delivered to Jagir Singh. Ex.DX is the copy of jamabandi for the year 1999-2000. In column No.4, Mangal Ram and others were shown to be the owners and in column No.5, Jagir Singh was shown to be in possession of Khasra Nos.10//11(5-5), 9//14 (8-0) and 15(8-0). Similar is the position as per copy of khasra girdwari for the years 1996 to 2001. Ex.DXX is the copy of sale deed in favour of the appellant and Ex.DYY is the copy of mutation. Ex.DZZ is the copy of rapat roznamcha dated 3.2.1995 to the effect that possession of above said khasra numbers was delivered to the appellant. Gurnam Singh when appeared as PW3, then in cross- examination stated that he cannot tell whether proceedings qua the land in his possession were pending before DDPO/Collector. He cannot tell whether warrant of possession was issued by the Collector or not against him. Land was on lease. Every year, land was let out. About 18/20 years back, he had taken the land on lease. He is in possession of receipts and lease deed. Proceedings under Section 42 before the Consolidation Director were pending but he cannot tell whether his petition was dismissed. Again admitted that from 1995, Panchayat stopped from taking lease money. Suggestion was given to Gurnam Singh that he had filed suit against the appellant and the same was dismissed. Reply of Gurnam Singh was that he cannot tell whether suit was dismissed but admitted that proceedings under Crl.Appeal No.685-SB of 2002 10 Section 145 Cr.P.C. were initiated qua land but both the parties were acquitted. Lastly admitted that entries of khasra girdwari were corrected in the name of appellant but he cannot tell whether land was purchased by the appellant. Shot was fired from a distance of 25 karams. From the statement of Gurnam Singh, one thing is clear that before present occurrence, there was litigation amongst the parties. As per documentary record, land was purchased by the appellant. Possession was also delivered to the appellant after mutation was sanctioned. Earlier to the occurrence, Gurnam Singh was in possession of the land. According to the appellant, possession was delivered to him as per rapat roznamcha dated 3.2.1995 but in Court when examined under Section 313 Cr.P.C., then stated that he was in possession of the land prior to 8.7.1995. Appellant did not state specifically that he is in possession of land w.e.f. 3.2.1995. Meaning thereby before the occurrence, complainant party was in possession of the land. So, parties had enmity amongst them. There was a motive of false implication also. At the same time, appellant had a motive to cause injuries because land was purchased by him and he claimed to be in possession. Motive is a double edged weapon and motive is always in the heart of the accused. Suppose there was no motive, then Court is to scrutinize the evidence with great care and caution. According to story, only one shot was fired hitting Gurnam Singh. Shot was fired from a distance of 25 karams. Now the question is whether appellant is liable for punishment under Section 307 IPC or he is liable for the offence punishable under Section 326 IPC. Dr. A.S. Joshi had medico legally examined Gurnam Singh. 7 injuries were noticed on his person. Injury No.2 was declared dangerous to life. Doctor stated that Crl.Appeal No.685-SB of 2002 11 dangerous to life means the injured could have died but for medical aid. In cross-examination, the doctor admitted that condition of patient was normal. Patient was conscious and was not in imminent danger of life. As per report of Radiologist regarding nature of injury, opinion was given, but Radiologist was not examined for the reasons best known to the prosecution. In 1992(0) AIJEL-SC, 20828, Pashora Singh vs. State of Punjab, Hon'ble Supreme Court in paras No.8 and 9 of the judgment observed as under:- “8. In our view, in the facts and circumstances of the case, no office u/s 307 of the Indian Penal Code is held established against the appellant Pashora Singh. According to the statement of Pal Singh injured himself, Pashora Singh had first given a Gandasa blow on right knee of Amar Singh. Lahora Singh then gave Gandasa blow on the right hand of Amar Singh from the reverse side. Pal Singh thereafter states that he raised an alarm and tried to intervene, when Lahora Singh gave two Gandasa blows to him. Pashora Singh also gave a Gandasa blow on his head. According to the above statement of Pal Singh, two injuries on his head were inflicted by Lahora Singh and the third one by Pashora Singh. It is an admitted case of the prosecution that accused persons had a grievance against Amar Singh and his uncle Malkiat Singh for having launched some security proceedings against the accused persons and they had come with an intention to taking revenge from Amar Singh and Malkiat Singh. According to the Crl.Appeal No.685-SB of 2002 12 statement of Pal Singh, Pashora Singh had given a Gandasa blow on the right knee reverse side. Admittedly, the injuries on Amar Singh are found to be simple in nature and this clearly goes to establish that the accused persons had no intention of causing death of any persons nor any injuries found on Pal Singh were stated to be sufficient in the ordinary course of nature to cause death. According to Pal Singh, when he raised an alarm and tried to intervene, Lahora Singh inflicted two Gandasa blows and Pashora Singh gave third blow on his head and thereafter the accused persons ran away. In the circumstances mentioned above, we are clearly of the view that the High Court was not right in holding that the accused had an intention to cause the death of Pal Singh or the knowledge of possible death of Pal Singh. Only injury No.1 on the head of Pal Singh has been described as dangerous to life and the High Court has itself recorded a finding that the previous litigation between the parties had nothing to do with Pal Singh and it was not established as to which of the two accused had inflicted injury No.1 on the head of Pal Singh. Thus, in the above facts it cannot be held that Pashora Singh committed any offence u/s 307 read with sec. 34 of the Indian Penal Code. The appellant Pashora Singh in the facts and circumstances of the case can only be held guilty for an offence u/s 326 read with sec. 34 of the Indian Penal Code. 9. So far as the question of sentence is concerned, the incident had taken place as far back as on 27.8.1981. The Crl.Appeal No.685-SB of 2002 13 accused is a cultivator and has already suffered the agony of the case in the trial Court for more than one year and for more than 10 years in the High Court and this Court. The co-accused Lahora Singh, the real brother of Pashora Singh has died on 30.1.1992. It has been submitted that the burden of looking after the widow and three minor children of Lahora Singh has fallen on the shoulders of Pashora Singh apart from the burden of his won wife and three minor children. Pashora Singh has remained in jail for 52 days during the trial and is now continuing in jail after having surrendered on 28.2.1992 during the pendency of the appeal before this Court. Thus, taking in view the entire facts and circumstances of the case, we consider that justice would be met if the accused-appellant Pashora Singh is awarded a sentence of imprisonment of the period already undergone by him for the offence under Ss. 326 of the Indian Penal Code.” In 2007(1) RCR (Crl.) 801, Nand Singh vs. State of Punjab, conviction was under Section 307 IPC. As per story, accused had caused 17 injuries with dagger and out of 17 injuries, 9 were declared dangerous to life but doctor did not describe any of those injuries to be sufficient to cause death in the ordinary course of nature. Then held that offence would fall under Section 326 IPC and not under Section 307 IPC. Relevant paras No.15 to 17 are reproduced as under:- “15 To bring an offence under Section 307 IPC, the prosecution is required to prove that the accused had an intention to commit murder of injured. This intention could be Crl.Appeal No.685-SB of 2002 14 gathered either from the act of the accused or from the impact of the injuries. Nowhere in the statement made by Manjit Singh before ASI Gurmit Singh, it was alleged that the appellant had caused injuries to Manjit Singh with an intention to kill him. Though Dr.Mon Abrahm PW-7 deposed that injuries Nos.4, 6 and 11 to 17 were dangerous to life but he did not describe any of those 9 injuries to be sufficient to cause death in the ordinary course of nature. Thus, the necessary ingredients required for bringing the offence under Section 307 IPC, were lalcking in the present case. However, injuries Nos.4, 6 and 11 to 17 were such which endangered the life of the victim. All of them were caused with sharped pointed weapon i.e. dagger. This would bring the offence to one under Section 326 IPC. Accordingly, conviction of the appellant under Section 307 IPC deserves to be set aside and instead he ought to be convicted under Section 326 IPC. 16. Coming to the question of sentence, it may be noted that the occurrence in question had taken place on 19.9.1987. At that time the appellant was about 27 years of age. He remained in custody for five months and six days as under trial. Upon his conviction and sentence, he was taken into custody and remained in jail thereafter for one month and six days as a convict, when he was released on bail. The present appeal was filed by the appellant through his counsel, but the said counsel did not put in appearance when the appeal was posted for final hearing on 11.5.2005. Accordingly, this Court Crl.Appeal No.685-SB of 2002 15 cancelled the bail of the appellant. Orders were passed for securing his presence through warrants of arrests. When warrants of arrest could not be executed, a direction was issued to Chief Judicial Magistrate, Faridkot to trace out the bail bonds furnished by the appellant so that notice may be issued to the surety for enforcing the presence of the appellant. Ultimately, on 10.7.2006, the surety produced the appellant before Chief Judicial Magistrate, Faridkot and he was taken into custody and ever since then he is in jail. He has, thus, undergone another period of four months and five days as of today behind the bars. Adding the said period to the period already spent by the appellant, first as an under-trial and thereafter as convict up to 13.6.1990, it is clear that the appellant has served a