IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 519-DB of 2009 ( O&M ) DATE OF DECISION : 20.05.2010 Shamsher Singh .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. J.S.Bedi, Advocate, for the appellant. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. In the present case, in an unfortunate incident, which took place on 23.6.2008, a young boy, aged 20 years, namely Kuldeep son of Mohan Sharma, who was doing the labour work, was killed by a gun shot fired by appellant Shamsher Singh. For the said incident, five accused were tried by the court of Additional Sessions Judge, Fast Track Court, Gurgaon, for the offences under Sections 302 and 323 read with Section 34 IPC. In addition to these offences, the appellant was also tried for the offence under Section 27 of the Arms Act. However, vide judgment dated 18.5.2009, passed by the trial court, only the appellant was convicted under Sections 302 IPC and 27 of the Arms Act and the remaining four accused were acquitted of the Crl. A. No. 519-DB of 2009 -2- charges framed against them. Vide order dated 20.5.2009, the appellant was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- under Section 302 IPC and to undergo rigorous imprisonment for three years and to pay a fine of Rs. 2,000/- under Section 27 of the Arms Act. 2. Against the said judgment and order, the instant appeal was filed by the appellant, which was admitted on 27.5.2009. In the appeal, the appellant moved an application for suspension of his sentence. During the hearing of that application, it was brought to the notice of the Court that in the unfortunate incident, a boy aged 20 years, who was doing the labour work and belonging to a very poor family, was killed at the hands of the appellant, without any intention of the appellant to kill him, as the bullet, which was fired by the appellant in order to scare the complainant and the other shopkeepers, hit that boy, while he was passing from the place of occurrence. In view of these facts, learned counsel for the appellant made a prayer that family of the appellant is ready to pay compensation to the parents of the deceased, therefore, appeal of the appellant be heard early, as according to the learned counsel, in the facts and circumstances of the case, conviction of the appellant under Section 302 IPC was not sustainable. In view of the said offer, this Court with the assistance of the learned State Counsel, tried to locate the parents of the deceased and ultimately, they were located in Kanpur, and on 13.5.2010, they appeared in the court. In these circumstances, learned State counsel very fairly stated that he has no Crl. A. No. 519-DB of 2009 -3- objection, if the appeal is heard early. Thus, the appeal was ordered to be listed for regular hearing. Consequently, the main appeal has been listed for regular hearing. 3. We have heard the arguments of learned counsel for the parties in the main appeal. 4. In nutshell, the prosecution version is that on 23.6.2008 at about 8.15 PM, complainant Mange Ram (PW.1), who was running a Halwai shop in front of Syndicate Bank, Farrukh Nagar, was sitting on his shop along with his son Inderjit (PW.2). At that time, one Scorpio car of black colour came in front of his shop. One person alighted from the car, ordered for five glasses of lassi, paid Rs. 100/- and then sat in the car. The complainant sent five glasses of lassi in the car. After taking lassi, four glasses were returned to Sonu son of Ram Niwas (PW.3), servant of the complainant, but one glass was kept in the car. When the complainant went near the car for taking the said glass, the occupants of the car asked the complainant that who is the owner of the shop. The complainant told them that his nephew Sonu son of Shri Chand (PW.4), who is handicapped, is the owner of the shop. Then the occupants of the car said that they would like to talk with the owner. Consequently, three persons alighted from the car. One of them was having a bottle of beer in his hand. The other was holding a revolver in his hand, while the third person was empty handed. The person, who was empty handed, asked the person, who was holding the revolver, to fire the shot. Then the person, who was holding beer bottle in his hand, Crl. A. No. 519-DB of 2009 -4- struck the bottle on the head of Inderjit (son of the complainant) and the person, who was armed with revolver, put the revolver on the Kanpati (temporal region) of the complainant. Then they started calling bad names to the complainant and others and also started pulling Inderjit (son of the complainant). On hearing the noise, several shopkeepers, including Bholu (PW.5), Gian Chand (PW.6) and Dharampal (PW.13) came at the spot. Thereupon, all the three persons sat in the car, started the car and tried to run away from the spot. At that time, one of them, after alighting from the car, fired a shot with the revolver, which hit one passerby, who was Kuldeep (deceased). Then the accused ran away from the spot. Lateron, Kuldeep was removed to the Hospital, where he was reported to have died due to fire arm injury. The complainant reported the matter to the police. Thereupon, the FIR (Ex.P29) was registered against unknown accused under Section 302 IPC. 5. On the next day i.e. on 24.6.2008, Dr. Neena Gathwal (PW.16) and Dr. B.B. Aggarwal conducted post mortem examination on the body of the deceased. They found one fire arm injury on the body of the deceased. In their opinion, the cause of death was due to fire arms injury to vital organs leading to haemorrhagic shock, which was sufficient to cause death in the ordinary course of nature. A fired bullet (Ex.P33) was taken out from the body of the deceased, which was sent to the Director, FSL, Madhuban. On the same day, the medical examination of injured Inderjit was also got conducted. Crl. A. No. 519-DB of 2009 -5- 6. During investigation, all the accused were arrested. They made separate disclosure statements. From the possession of the appellant, a revolver of .32 bore (Ex.P18) along with five live cartridges and one empty cartridge (Ex.P19) of the same bore were recovered and were taken into possession vide recovery memo (Ex.P14), which were sent to the Director, FSL, Madhuban. During interrogation, the appellant also produced his arms licence, which was taken into possession vide separate recovery memo (Ex.P16). As per the report (Ex.PX) given by the Director, FSL, Madhuban, .32 bore revolver was found in working order and .32 bore fired cartridge case marked C/1, .32 bore fired bullet marked BC/1 were fired from .32 bore revolver marked W/1 and not from any other fire arm even of same make and caliber, because every fire arm has got its own individual characteristic marks. 7. After completion of investigation, challan was presented against all the accused and they were charge sheeted for the offences under Sections 302 and 323 read with Section 34 IPC. In addition to this, the appellant was also charge sheeted for the offence under Section 27 of the Arms Act. The accused did not plead guilty to the charges and claimed trial. 8. In support of its case, the prosecution examined twenty witnesses. 9. In order to prove the alleged occurrence, the prosecution examined PW.1 Mange Ram (the complainant), PW.5 Bholu, PW.6 Gian Chand and PW.13 Dharampal, the eye witnesses, who had seen the Crl. A. No. 519-DB of 2009 -6- occurrence and PW.2 Inderjit (injured), PW.3 Sonu son of Ram Niwas, servant at the Halwai shop and PW.4 Sonu son of Shri Chand, who was projected as owner of the shop. All these witnesses gave the exact narration of the prosecution version, but in the last, they refused to identify the accused, present in the court, as the persons who came in the Scorpio car. They were declared hostile and were cross-examined. In the cross- examination, they admitted their signatures on the statements given by them to the police. 10. PW.10 Dr. R. Yadav proved MLR (Ex.P10) of injured Inderjit. PW.12 Chander Bhan, ASI, proved the arrest of the accused in this case and the recovery of scorpio car as well as one .32 bore revolver along with five live cartridges and one empty cartridge of the same bore as well as the disclosure statements made by all the accused persons. PW.14 Ishwari Parshad identified the dead body of deceased Kuldeep. PW.16 Dr. Neena Gathwal proved the post mortem report (Ex.PW16/B) of the deceased. PW.19 SI Satish Kumar is the Investigating Officer of the case. The remaining witnesses are formal in nature. 11. All the accused persons, in their statements recorded under Section 313 Cr.P.C., denied all the allegations appearing against them in the prosecution evidence. They pleaded innocence and false implication. 12. In defence, the accused persons examined two witnesses, namely Devender Dangi, Bureau Incharge of Dainik Jagran News Paper and DW.2 Shishu Pal Parshad. Both these witnesses have specifically stated that Crl. A. No. 519-DB of 2009 -7- the accused in this case were arrested on 24.6.2008. 13. The trial court, after considering the evidence led by both the parties, while relying upon the prosecution evidence, convicted and sentenced the appellant, as indicted above, whereas the remaining four accused were acquitted of the charges framed against them. 14. Learned counsel for the appellant argued that none of the prosecution witnesses, who were allegedly present at the time of the occurrence and had witnessed the occurrence, identified the appellant as the person, who fired the shot from the revolver, which hit the deceased. Learned counsel submits that on account of non-identification of the assailant, the trial court has given the benefit to all the co-accused except the present appellant. But only because the licensed revolver of the appellant was recovered from his possession and on the basis of the report of the Director, FSL, Madhuban, the trial court has held that the appellant has killed Kuldeep deceased, for which he has been convicted under Section 302 IPC and Section 27 of the Arms Act. He argued that actually, the appellant was arrested one day after the occurrence and since he was having the licensed revolver, therefore, he was falsely implicated in this case. Therefore, according to the learned counsel, the prosecution has failed to prove its case against the appellant beyond a reasonable doubt. Learned counsel further argued that even if this court comes to the conclusion that the appellant was the person, who fired shot on the day of occurrence, which hit the deceased, even then no offence under Section 302 IPC is made Crl. A. No. 519-DB of 2009 -8- out against him. According to the learned counsel, even as per the prosecution version, the appellant had fired the shot while running from the spot in the car, without any intention to cause death of any body. The only intention at that time was to scare the shopkeepers who had collected at the spot and wanted to cause damage to the vehicle and cause injuries to the appellant and the other occupants of the car. He further argued that the said shot was not aimed on any particular person or the deceased, but it was fired only to scare the shopkeepers. Therefore, in view of these facts and circumstances, it cannot be said that the said act was done with intention of causing death. At the most, it can be said that the said act was done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. Therefore, at the most, the appellant can be punished under Section 304 Part II IPC. 15. On the other hand, learned counsel for the respondent-State argued that the trial court has rightly convicted and sentenced the appellant for the offence under Section 302 IPC and Section 27 of the Arms Act. 16. We have considered the submissions made by learned counsel for the parties and have perused the record of the case. 17. It has been proved on record from the statements of PW.1 Mange Ram, PW.2 Inderjit and PW.3 Sonu son of Ram Niwas that the occurrence has taken place in front of the shop of Mange Ram, who had lodged report to the police. In addition to these witnesses, PW.5 Bholu, PW.6 Gian Chand and PW.13 Dharampal have also stated that out of four Crl. A. No. 519-DB of 2009 -9- assailants, one person came out of the car and fired from his revolver, which hit a passer-by, who later on was identified as Kuldeep. All these witnesses in their examination-in-chief have supported the prosecution case on all the aspects, except that while turning hostile to their earlier stand, they refused to identify the accused present in the court. However, from their statements, it has been proved that four persons came in a black scorpio car and one of them was armed with revolver, who with his revolver fired a shot, which hit upon Kuldeep, a passer-by, who died. The factum of death of Kuldeep as a result of fire arm injury has also been duly established by the medical evidence. It has also been established that on 25.6.2008, on a secret information, a Nakabandi was laid by the police and the scorpio car of black colour, which was used by the accused at the time of the crime, was taken into possession vide recovery memo Ex.P15. At that time, appellant Shamsher Singh, his co-accused Jitender, Anil and Ombir were sitting in the car. They were apprehended, and from the personal search of the appellant, a revolver of .32 bore along with five live cartridges and one empty cartridge of the same bore were recovered. The appellant produced the armed license of the said revolver. During investigation, the recovered revolver, the bullet recovered from the body of the deceased, the live cartridges and the empty cartridge recovered from the chamber of the revolver were sent to the Director, FSL, Madhuban in sealed condition. The report of the Director, FSL, Madhuban has been proved on record as Ex.PX, according to which .32 bore fired cartridge case marked C/A, .32 bore fired Crl. A. No. 519-DB of 2009 -10- bullet marked BC/1 were fired from .32 bore, which was recovered in this case from the appellant. It was also mentioned by the Director, FSL that the hole on the baniyan contained in parcel II has been caused by a bullet projectile. Thus, from the scientific evidence led by the prosecution, it has been proved that the bullet recovered from the body of the deceased was fired from the revolver recovered from the possession of the appellant and the empty recovered from the revolver was also pertaining to the same bullet which was fired from the revolver in question. The trial court, after taking into account the said scientific evidence, while relying upon the same, found the appellant to be guilty for the alleged offences. However, the other accused were given the benefit of doubt. 18. Learned counsel for the appellant could not point out any illegality or perversity in the said part of the judgment. However, the learned counsel vehemently argued that in view of the facts and circumstances of the case, the appellant cannot be convicted and punished under Section 302 IPC. At the most, he can be convicted and punished under Section 304 Part II IPC. We find force in this contention of learned counsel for the appellant. In the instant case, as per the prosecution version, the appellant fired only one shot from his revolver and that too in order to scare the shopkeepers and the complainant, when they were raising raula and were trying to catch hold the accused. At that time, all the assailants were running from the spot in the car. Then, the appellant came out of the car and fired a shot. He did not aim the said shot on any particular person. Crl. A. No. 519-DB of 2009 -11- His intention was not to cause death of any body or to cause such bodily injury to any one as is likely to cause death. Only one shot was fired by him. He did not fire the second shot. In these circumstances, we are of the opinion that at the most, it can be said that when the appellant fired the shot, he was having the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. Therefore, for the culpable homicide of the deceased committed by the appellant in this case, he can be punished only under Section 304 Part II IPC. The similar question came before the Hon'ble Supreme Court in Raj Kishore Jha v. State of Bihar and Ors., 2003 (4) RCR (Criminal) 935, wherein the accused fired only one gun shot from a distance of 70/80 feet. However, the court, while taking into consideration the nature of the gun as well as the position of the assailant and the victim, came to the conclusion that in the facts and circumstances of the case, the accused could be punished under Sections 304 Part II IPC and 27 of the Arms Act and he was sentenced for seven years RI and five years RI, respectively. Similarly, in Surendra Singh alias Bittu v. State of Uttaranchal, (2006) 3 Supreme Court Cases (Cri) 328 only one gun shot was fired, which hit the deceased on left flank of his abdomen. However, taking into consideration the facts and circumstances of the case and the fact that the reason for the scuffle remained a mystery, as genesis of the occurrence was not proved, the accused was convicted under Section 304 Part II IPC and sentenced to undergo sentence of seven years' rigorous imprisonment and also pay a fine Crl. A. No. 519-DB of 2009 -12- of Rs. 5,000/-, in default of payment whereof, to undergo further six months' simple imprisonment. However, in the instant case, there is a special feature. In both the aforesaid cases, the gun shot was fired by pointing towards a particular person, but in the present case, the gun shot was not fired upon any particular person. It was fired with intention to scare the mob, but the gun shot hit the deceased, which clearly indicates that the appellant was having no intention to cause death of any person or to cause such bodily injury to any one as is likely to cause his death. From the facts and circumstances of the case, only it can be held that the appellant, while firing shot from his revolver, when few persons gathered at the spot, definitely was having the knowledge that the said fire is likely to cause death. Therefore, in these facts and circumstances, the appellant can be convicted and punished only under Section 304 Part II IPC. The conclusion arrived at by the trial court that the appellant has committed the murder punishable under Section 302 IPC is not sustainable. Accordingly, his conviction and punishment for the offence under Section 302 IPC is modified to the offence and punishment under Section 304 Part II IPC. However, his conviction under Section 27 of the Arms Act is upheld. 19. We have heard learned counsel for the parties on the quantum of sentence. Learned counsel for the appellant prayed that the appellant is a married person having two daughters. He is also having old age parents and is the only bread earner in the family. Learned counsel further submits that family of the appellant is ready to pay compensation of Rs. 8 lacs to the Crl. A. No. 519-DB of 2009 -13- parents of the deceased. The parents of the deceased are also present in court and they are willing to accept the proposed compensation, as after the death of their son, they being the old persons are facing difficulty to sustain in life. In this background, they have no objection if a lenient view is taken against the appellant on the quantum of sentence. 20. In view of the aforesaid facts, the appellant is sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 1,000/- under Section 304 Part II IPC. In default of payment of fine, the appellant shall further undergo rigorous imprisonment for a period of six months. The sentence of imprisonment under Section 27 of the Arms Act is upheld, but the sentence of fine is reduced to Rs. 500/-. In default of payment of fine, the appellant shall further undergo rigorous imprisonment for a period of six months. Both the sentences shall run concurrently. We also order the appellant to pay a compensation of Rs. 8 lacs to the parents of the deceased. The father of the appellant is present in the Court with the aforesaid amount, which is to be paid to the parents of the deceased. Accordingly, it is ordered that this amount be deposited in the joint name of the parents of the deceased, namely Mohan Sharma son of Manni Lal Sharma and Bimla Sharma wife of Mohan Sharma, residents of House No. 119/343, Darshan Purva, Ram Nagar (Near Arya Samaj Dharamshala), Kanpur (U.P.) in the State Bank of Patiala, High Court Branch, Chandigarh, in a Fixed Deposit, for a period of three years. With the intervention of the Court, the said amount has been deposited in Fixed Deposit Account bearing No. 65083972056 and a Saving Bank Account No. 65083954560 Crl. A. No. 519-DB of 2009 -14- has also been got opened in the joint name of the parents of the deceased. The pass book of the Saving Bank Account has been handed over to the parents of the deceased. However, the Fixed Deposit Receipt has not been handed over to them. Since the parents of the deceased are residing in Kanpur (U.P.), therefore, the Bank Manager, State Bank of Patiala, High Court Branch, Chandigarh, is directed to transfer the aforesaid Fixed Deposit Account as well as the Saving Bank Account to their branch at Kanpur. The bank authorities of the State Bank of Patiala, High Court Branch, Chandigarh, are further directed to send the said Fixed Deposit Receipt to the parents of the deceased through their Kanpur Branch. It is ordered that interest accrued on the said Fixed Deposit shall be quarterly transferred to the said Saving Bank Account and the parents of the deceased will be at liberty to withdraw the said amount. After the expiry of three years, it will be open for them to further continue with the Fixed Deposit or withdraw the amount. However, it is made clear that for three years, except for the amount of interest, as ordered above, no amount from the Fixed Deposit will be paid to the account holders. 21. With the aforesaid modification, the appeal is partly allowed. 22. Copy of this judgment be sent to the State Bank of Patiala, High Court Branch, Chandigarh, for compliance. ( SATISH KUMAR MITTAL ) JUDGE May 20, 2010 ( JORA SINGH ) ndj JUDGE