Criminal Appeal No.917-SB of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.917-SB of 1998 Date of Decision:23.02.2010 Jagdish Kumar .....Appellant Versus State of Punjab .....Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR. Argued by: Mr.Atul Lakhanpal, Senior Advocate, with Mr.R.S.Chahal, Advocate, for the appellant. Mr.Ajaib Singh, Additional Advocate General, Punjab, for the respondent-State. **** MEHINDER SINGH SULLAR, J.(Oral) Impugning the judgment of conviction and order of sentence dated 21.10.1998, appellant-Jagdish Kumar-convict(hereinafter to be referred as “the appellant”) has directed the present appeal, whereby he was convicted and sentenced to undergo rigorous imprisonment for a period of four years, to pay a fine of Rs.500/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of four months, for the commission of offence punishable under Section 307 IPC. 2. The crux of the prosecution version and evidence, unfolded during the trial, relevant for disposal of the present appeal and emanating from the record, is that the appellant, who was a Constable in Punjab Police, was transferred to the Police Station Ghagga vide office order dated 30.08.1991(Ex.PG). A carbine bearing No.15208037 and two magazines containing 70 cartridges were issued to him in connection with his official duty. An entry to that effect was made in the Arms and Ammunition Register maintained in the Police Station Samana, District Patiala. Criminal Appeal No.917-SB of 1998 2 3. The case of the prosecution further proceeds that on the night intervening 18/19.06.1992, PW2-Constable Hari Chand and PW4-HC Satnam Singh were present in Police Station City, Samana in connection with their respective duties. At about 10.00 P.M., the appellant came there and asked PW2 to deposit his arm and ammunition with him. PW2 asked him to wait outside for two minutes, then the appellant started abusing him. PW2 lodged the protest in this respect and asked him not to abuse him and in order to get his(appellant) arm and ammunition deposited, he(PW2) was just coming out of the office. It furiated and enraged the appellant and he fired burst(shots) from his carbine aiming towards PW2. PW2 in order to save himself took the cover/shelter behind the shutter of the door and even in that process, one of the bullets hit his right hand. In the wake of alarm raised by PW2, PW4-HC Satnam Singh and PW7-HC Amrik Singh, Wireless Operator, reached there and overpowered the appellant. The carbine was taken from his possession. PW2 was removed in an injured condition to Civil Hospital, Samana, where he was medico legally examined by PW1-Dr.Satish Arora, who vide his report(Ex.PA) found gun-shot wounds of entry and exit on his(PW2) right hand. Having acquired the knowledge of the incident, PW6-ASI Harbilas Singh reached the Civil Hospital, Samana, and moved an application, whereby the doctor opined that the injured was fit to make the statement. Thereafter, PW6 recorded the statement(Ex.PB) of PW2, made his endorsement (Ex.PB/1) on it and sent the same to the police station for registration of the case. On the basis of which, FIR(Ex.PB/2) was recorded. 4. According to the prosecution, then PW6 inspected and prepared the rough site plan(Ex.PH), of the place of occurrence with its correct marginal notes. He took into possession four spent cartridges of 9 mm, converted into a parcel, sealed with the seal of 'HS' and the same was taken into possession vide recovery memo(Ex.PD). PW4 produced the carbine and magazines before PW6. 16 live cartridges were recovered from one of the magazines, whereas 24 live cartridges were recovered from the other magazines. The carbine, magazines, all the 40 live cartridges were converted into a sealed parcel, put in a tin-box and sealed in a parcel with the seal of PW6. The same were taken into possession vide recovery memo (Ex.PE). Criminal Appeal No.917-SB of 1998 3 5. Levelling a variety of allegations in all, according to the prosecution that on the night intervening 18/19/06.1992, the appellant fired the burst(shots) from his service carbine aiming towards PW2, with such intention and under such circumstances, that if by the act, he had caused his death, he would have been guilty of murder. On the strength of aforesaid allegations, the present case was registered against him vide FIR No.105 dated 19.06.1992(Ex.PB/2), on accusation of having committed the offence punishable under Section 307 IPC by the police of Police Station Samana, District Patiala, in the manner indicated here-in-above. 6. After the completion of the investigation, final police report/challan was submitted against the appellant to face trial for the aforesaid offence as per provisions of Section 173 Cr.P.C. Since, the indicated offence was triable by the Court of Sessions, so ultimately, the case was committed for trial to the Court of Sessions. 7. Having completed all the codal formalities, the appellant was charge-sheeted for the commission of offence punishable under Section 307 IPC by the trial Judge vide order dated 17.02.1993. As he did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution. 8. The prosecution in order to substantiate the charge framed against the appellant, examined PW1-Dr.Satish Arora, PW2-Head Constable Hari Chand, PW3-Constable Devinder Singh, PW4-Head Constable Satnam Singh, PW5-MHC Jarnail Singh, PW6-Harbilas Singh and PW7-Head Constable Amrik Singh. The prosecution has also tendered into evidence the report of the Forensic Science Laboratory(Ex.PJ). 9. After the close of the prosecution evidence, statement of the appellant was recorded. All the incriminating circumstances appearing on record was put to enable him to explain any event as contemplated under Section 313 Cr.P.C. However, the appellant admitted that he was posted in the Police Station Ghagga vide order(Ex.PG) and was issued a carbine and two magazines containing 70 cartridges about which the entry was made in the relevant Register. Emphatically denying other evidence, the appellant pleaded false implication and set-up a defence plea that MHC-Hari Chand (PW2) was taking liquor, fiddling with the carbine, which fired in that process and PW2 received the injury accidentally. PWs-Amrik Singh and Criminal Appeal No.917-SB of 1998 4 Satnam Singh were stated to be the partymen of PW2 and all of them joined to falsely implicate him in this respect. However, he did not prefer to produce any evidence in his defence, despite adequate opportunities. 10. The trial Judge, after taking into consideration the evidence on record, convicted and sentenced him in the manner depicted here-in-above. 11. The appellant did not feel satisfied with the impugned judgment of conviction and order of sentence and filed the present appeal. That is how I am seized of the matter. 12. Assailing the impugned judgment, learned counsel for the appellant, has contended with some amount of vehemence that there is an inordinate and unexplained delay in lodging the FIR, which is fatal to the prosecution case. The argument is that even no offence under Section 307 IPC is made out against the appellant. Raising a variety of arguments in all, according to the learned counsel that the trial Judge has committed a legal error in convicting the appellant on the basis of unreliable and untrustworthy evidence. Thus, he prayed for the acceptance of the appeal in this context. 13. Hailing the impugned judgment, on the contrary, learned State Counsel has argued that delay in lodging the FIR is duly explained. The ocular evidence of the prosecution finds corroboration from the medical evidence. He urged that since there is more than sufficient oral, medical and documentary evidence on record against the appellant, so, no interference is warranted in this behalf. 14. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, as there is no merit, therefore, the appeal deserves to be dismissed for the reasons mentioned here-in-below. 15. The main celebrated argument of the learned counsel for the appellant that the inordinate and unexplained delay in lodging the FIR is fatal to the prosecution case, is not only devoid of merit but misplaced as well. It is not a matter of dispute that the occurrence had taken place at about 10.00 P.M. on 18.06.1992. PW2 was removed in an injured condition to Civil Hospital Samana, where he was medico legally examined at 10.50 P.M. by PW1. In the wake of wireless message from the Police Station Criminal Appeal No.917-SB of 1998 5 Samana, at about 10.20 P.M., PW6, who was the In-charge of Police Post City, Samana, went to Civil Hospital and moved application(Ex.PG) for obtaining the opinion of the doctor about the fitness of PW2. The doctor vide his endorsement declared PW2 fit to make the statement. Then, PW6 recorded his(PW2) statement(Ex.PB) and made his endorsement(Ex.PB/1) on it at 12.10 A.M.(early morning) on 19.06.1992 and sent the same to the Police Station for registration of the case, where a formal FIR(Ex.PB/2) was recorded at 12.20 A.M. on the same day. Not only that the FIR was promptly recorded, but the copy of the same was received at 10.00 A.M. on the same day by the concerned Magistrate. Therefore, keeping in view the distances between the place of occurrence, hospital, Police Post and main Police Station Samana, it cannot possibly be saith that there was inordinate and unexplained delay in lodging the FIR, which can be termed as fatal to the prosecution case. The mere fact that the copy of FIR was received by the Magistrate at 10.00 A.M., is not such a circumstance so as to disbelieve the prosecution version in its entirety, which is otherwise proved on record by cogent and reliable evidence. Hence, the argument of the learned counsel pales into insignificance in this relevant connection. 16. The next argument of the learned counsel that the evidence brought on record by the prosecution falls short as is required to prove a criminal charge against the appellant under Section 307 IPC, is again not tenable. On the other hand, the argument of learned State Counsel that there is ample evidence on record against the appellant, has considerable force. The bare perusal of the record would reveal that PW2, who put the police machinery into motion against the appellant, has categorically stated on oath as under:- “On the intervening night of 18/19.06.1992, I was posted as Assistant to the M.H.C. of PS Samana. At about 10.00 P.M., I was present with MHC Satnam Singh in his office. Satnam Singhwas also present there. We were working as a routine. Accused Jagdish Chand present in the court who was posted in PP City Samana as Head Constable, came there. He was having one 9 mm carbine. He wanted to deposit that carbine in the Malkhana. Accused asked me that he wants to deposit Criminal Appeal No.917-SB of 1998 6 this carbine in the Malkhana. I stated him that wait for some time. On that, he came out from the office of M.H.C. and he started abusing me. When I came out from the office with the keys so that the weapon may be deposited in the Malkhana. When I reached near the gate of the office of M.H.C., then accused fired on me with the carbine which hit on my right hand thumb. The accused again fired with his carbine on me. Amrik Singh and Satnam Singh apprehended the accused as Amrik Singh also came there at that time. The carbine of the accused was snatched from him and he was caught hold by them. The name of the accused is Jagdish Kumar. I was taken to Civil Hospital, Samana on a scooter by MHC Satnam Singh, where I was given treatment by the doctor by putting a cloth on my face and the pallet was removed from my wound. Then I was medically examined by the doctor. I remained admitted in the hospital for some time. My statement was recorded by ASI Harbilas Singh which was read over to me. After admitting it to be correct, I signed the same in English with my left hand, as my right hand was not in working condition due to injury. My statement is Ex.PB and carbine is Ex.P1”. 17. The statement of PW2 injured witness has been duly corroborated by PW4-HC Satnam Singh and PW7-HC Amrik Singh, who have, inter alia, maintained on oath that on the fateful day, the appellant came to the Police Station Samana, along with 9 mm carbine which was already issued to him by the office. The appellant asked PW2 that he want to deposit this carbine in the Malkhana. PW2 asked that he should wait for some time. On this, the accused came out and started abusing PW2. When PW2 went outside the office with the keys of Malkhana to deposit the carbine, in the meantime, the appellant fired at Hari Chand(PW2) with his carbine, which hit on his right hand. On hearing the noise, he(PW4) went outside of his office from the other door. Then, the accused again fired with his carbine on PW2. He and PW7Amrik Singh apprehended the accused Criminal Appeal No.917-SB of 1998 7 along with the carbine. PW4 snatched the carbine from the accused. The accused was handed over to the Santry of the Police Station. PW4 put the carbine and magazines in the Malkhana and removed PW2 in an injured condition to Civil Hospital, Samana. The evidence of PW7 is also to the same effect. The recovery of weapon of offence and 9 mm cartridges also corroborates the prosecution case. 18. Meaning thereby, evidence of PW2, PW4 and PW7 is reliable and trustworthy which finds further corroboration from the medical evidence. PW1-Dr.Satish Arora, who medico legally examined PW2 vide MLR(Ex.PA) and found the following injuries:- “Gunshot wound:-(A) Wound of Entry-0.7 cm x 0.7 cm on the thener eminence of right hand, margins were inverted, blackened, collar of abrasion was present. Advised X-Ray and injury was kept under observation. (B) Wound of Exit-3cm x 3cm on the back of right hand in the web between thumb and index finger, margins were everted irregular. It was freshly bleeding. X-Ray was advised and injury was kept under observation. Probable duration of injuries was fresh. Injuries(A &B) were caused by fire arm”. PW1 stated that the injuries described therein were through and through and caused by a single shot and that was the reason that no bullet was recovered from the wound. 19. Sequelly, PW6-ASI Harbilas Singh, main Investigating Officer has, inter alia, maintained that after receipt of wireless message at about 10.20 P.M., he along with HC Nirmal Singh, Constable-Satnam Singh and PHG-Ram Dass went to Civil Hospital, Samana. After obtaining the opinion of the doctor, he recorded the statement(Ex.PB) of PW2 correctly. The contents of the statement were read over and explained to him and he signed the same in token of its correctness. PW6 made his endorsement (Ex.PB/1) on it and sent the same to the Police Station through Constable- Satnam Singh(3316), on the basis of which, FIR(Ex.PB/2) was recorded by MHC-Satnam Singh(1082), whose signatures, he identified. In addition to it, according to PW6, he inspected the spot. MHC Satnam Singh produced before him the carbine, which according to him was snatched by him from Criminal Appeal No.917-SB of 1998 8 the accused after the occurrence. Along with the carbine, MHC Satnam Singh produced before him extra magazines. On unloading, bullets of 9 mm were recovered and taken into possession in a sealed parcel vide recovery memo(Ex.PE), which was signed by the witnesses. He prepared the rough site plan(Ex.PH) of the place of occurrence correctly. The case property was deposited with the MHC of Police Station in the same condition with the seals intact. After completion of the investigation, the accused was challaned by Inspector Rachpal Singh, SHO, whose signatures, he identified on the police report under Section 173 Cr.P.C. That means, the Investigating Officer has duly testified the investigation carried out by him 20. However, learned counsel for the appellant has pointed out that as per evidence brought on record, the appellant was posted in the Police Station Ghagga and as such, his presence in the Police Station Samana for the deposit of his arms and ammunition was doubtful. He has also pointed out that neither the prosecution photographed the bullet marks on the articles nor taken the blood-stained earth from the place of occurrence. The argument is that the prosecution did not explain as to why PW6 conducted the investigation instead of SHO of Police Station Samana. 21. There appears to be no substance in these arguments of the learned counsel for the appellant. There is a positive evidence on record that the appellant was deputed in the Police Post City Samana and was allotted a carbine along with ammunition in question. As vide order (Ex.PG), the appellant was transferred to Police Station Ghagga, therefore, he came to the Police Station to deposit his arms and ammunition and created the entire trouble in the same manner as projected by the prosecution. PW2 further explained that the appellant-Jagdish Chand, who was posted in Police Post City Samana, as Head Constable, came there. He wanted to deposit his carbine in the Malkhana. PW4 has also corroborated that the accused came to his office with 9 mm carbine, which was already issued to him by his office. He asked PW2-Hari Chand to deposit the carbine in Malkhana. In other words, the presence of the appellant at the place of occurrence was natural and duly proved by the cogent evidence. 22. Not only that there is no ambiguity in the statements of PW2, PW4, PW6 and PW7 with regard to the place of previous posting and transfer of the appellant and issuance of arms and ammunition to him vide Criminal Appeal No.917-SB of 1998 9 entry(Ex.PF), even in his statement recorded under Section 313 Cr.P.C., the appellant has categorically admitted that he was transferred and posted in Police Station Ghagga vide transfer order(Ex.PG). He has also admitted that on 22.02.1992, a carbine bearing No.15208037 and two magazines containing 70 cartridges were issued to him by PW4-HC Satnam Singh and entry(Ex.PF) to that effect was made in the Register. Hence, it stands proved on record that the weapon of offence was issued to the appellant and he came to the Police Station for depositing the same and fired the shot aiming towards PW2. Moreover, PWs were not specifically cross-examined on these aspects on behalf of the appellant. That means, their statements remained unchallenged in this connection. 23. Likewise, the fact that bullet marks were not proved on the articles, blood stained earth was not recovered, has got no adverse bearing on the prosecution version, as regards the actual firing/incident by the appellant is concerned, which is otherwise proved by ocular evidence coupled with medical evidence, particularly when PW7 has explained in his cross-examination that PW2 had wrapped a cloth(parna) on his hand after receipt of injuries and no blood had fallen at the spot. 24. Thus, it would be seen that the prosecution version finds full corroboration from the ocular evidence of PW2, PW4 and PW7. PW2 is an injured witness while PW4 and PW7 are the eye witnesses of the occurrence. Not only that the story of the prosecution is fully corroborated by ocular evidence, it finds further corroboration from medical evidence as discussed here-in-above. PW6 testified the investigation carried out by him. It is immaterial whether the investigation is conducted by PW6 and not by SHO of the concerned Police Station, as urged on behalf of the appellant. PW4 has also stated that he sent the parcel containing a carbine and empty cartridges of 9 mm to the Forensic Science Laboratory through Constable- Devinder Singh. The affidavit(Ex.PC) of Devinder Singh is also to that effect. The report of Forensic Science Laboratory(Ex.PJ) would suggest that the empty cartridges were fired from the said carbine, which connected the appellant with the crime in question. All the witnesses were cross- examined at length and no substantial material could be elicited in searching cross-examination to dislodge their testimonies. No motive could possibly be attributed to PW2, PW4, PW6 and PW7, as to why they would falsely Criminal Appeal No.917-SB of 1998 10 implicate and depose against the appellant in this case. They gave the vivid and consistent version of the incident. 25. The defence plea put-forth by the appellant that PW2 was taking alcohal and fiddling with the carbine in question and got accidental shot, deserves to be outrightly rejected, in the absence of any cogent material on record in this respect. Although, the appellant has taken a specific plea but he did not prefer to produce an iota of evidence to prove his defence plea. Moreover, the admission of the appellant that PW2 received gun-shot injury from the carbine in question, further lends support to the prosecution case, which is otherwise proved by cogent evidence on record as described here-in-above. 26. Faced with the situation, learned counsel for the appellant then urged that he will not be able to assail the impugned judgment any more, in view of the evidence brought on record. However, he canvassed that since the appellant has inflicted only one injury on the right hand of PW2, so, no offence under Section 307 IPC is made out against him. On the other hand, learned State Counsel has argued that the act of the appellant squarely falls within the ambit of Section 307 IPC. 27. Again, it is not a matter of dispute that the appellant was charge-sheeted for the commission of offence punishable under Section 307 IPC, which postulates that whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned. 28. Such, thus being the legal position and evidence on record, now the core question that arises for determination is whether the offence under Section 307 IPC against the appellant is made out or not? 29. Having regard to the rival contentions of the learned counsel for the parties and the evidence brought on record, to me, this argument of the learned counsel for the appellant deserves to be rejected as well for more than one reason. At the first instance, the prosecution claimed that on the fateful day, the appellant came to the Police Station Samana to deposit his Criminal Appeal No.917-SB of 1998 11 arms and ammunition and when PW2 asked him to wait, then he got enraged and fired burst(shots) from the carbine aiming towards PW2, who tried to escape, took shelter behind the shutter of the door and even in that process, one bullet hit his right hand. If PW2 did not try to escape, then, the possibility of hitting bullets on his vital part could not be ruled out. The weapon used was carbine and the appellant directly fired the burst(shot) aiming towards PW2 and actually caused entry and exit wounds. It means, he had the requisite intention of causing such bodily injury as he knew to be likely to cause death and it was in his knowledge that it is so eminently dangerous that it could in all probabilities cause death or such bodily injury as is likely to cause death. Therefore, both the ingredients of intention and knowledge for the commission of offence are complete and the appellant was liable to be and has been rightly convicted under Section 307 IPC by the trial Judge. 30. The other feeble argument of the learned counsel that the prosecution has failed to examine the Santry, who was on duty at the relevant time and it creates a shadow of doubt on the prosecution version, again is not at all tenable. It is nobody's case that