Criminal Appeal No. 306-SB of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 306-SB of 1997 Date of Decision : 27.07.2009 Gurnam Singh son of Kartar Singh aged 33 years, r/o village Ghelkhurd District Ambala. ...Appellant Versus State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. T.S. Sangha, Senior Advocate, with Mr. Jagjit Singh Lalli, Advocate, for the appellant. Mr. P.S. Sullar, Deputy Advocate General, Haryana for the respondent – State. * * * * SHAM SUNDER, J. This appeal is directed against the judgement of conviction dated 08.04.1997, and the order of sentence dated 11.04.1997, rendered by the Court of Additional Sessions Judge, Ambala, vide which, it convicted the accused, for the offence, punishable under Section 307 of the Indian Penal Code, and sentenced him, to undergo rigorous imprisonment for a period of three years, and to pay a fine of Criminal Appeal No. 306-SB of 1997 2 Rs. 10,000/-, and in default thereof, to further undergo rigorous imprisonment for a period of one year. It was also directed that, out of the fine realized from the accused, an amount of Rs. 5000/-, would be paid to the victim. 2. The facts, in brief, are that, on 27.09.1993, Jaspal Singh, complainant, r/o village Ghel Khurd, cultivator by profession, alongwith his children, and the children of his cousin namely Devinder Singh, went to Ambala City, to watch the fair of 'Bawan Dwadsi', and came back after leaving the children there. Jaspal Singh, complainant, alongwith his nephew Paramjit Singh son of Devinder Singh, left home, at about 6.00 PM on 27.09.1993, on scooter bearing registration No. HYX-9636, to bring the children back. The scooter was being ridden by Paramjit Singh, injured, and Jaspal Singh, complainant, was sitting, on the pillion seat. When the scooter reached near Panjokhara Minor, in the area of Ambala City, a truck bearing registration No. HR- 01-A-5275, which was being driven by Gurnam Singh, accused, came from the back side (from the side of village Ghel), and hit the scooter, as a result whereof, the complainant jumped therefrom, and fell towards kacha portion of the pits, whereas, Paramjit Singh, injured, fell near the scooter. The truck was stopped, at some distance, whereupon Jaspal Singh, complainant, saw the other accused namely Jarnail Singh (since deceased), Shamsher Singh, Gurvinder Singh, and Mandeep Singh, alighting therefrom. Thereafter, Gurnam Singh, accused, raised an exhortation, that the injured, should not escape, and he should be killed Criminal Appeal No. 306-SB of 1997 3 whereupon, all the accused, again boarded the truck, and he (Gurnam Singh), put it, in the reverse gear, and tried to run over Paramjit Singh, with an intention to kill him, but he slipped towards the pits and was, thus, saved. Thereafter, the accused took to their heels, threatening Paramjit Singh, that they would kill him, as and when, they got opportunity. The incident was witnessed by Bhupinder Singh son of Sh. Gurdial Singh, Previously also, Jarnail Singh, accused (since deceased), and his brothers, had several times given threats, to the complainant, and his brothers, that they would be taught a lesson for helping Ajmer Singh etc. in the murder case, and on some day, they would kill them. Thereafter, Paramjit Singh, injured, was brought to Civil Hospital, Ambala City, the Medical Officer whereof, sent ruqa PB to the Police Post No. 3, Ambala City, regarding his admission whereupon, Jagan Nath, Assistant Sub Inspector, Police Station Sadar Ambala, who was already present, in the hospital, in connection with another case, approached the injured, but the Medical Officer, declared him unfit to make the statement. Jaspal Singh son of Waryam Singh, complainant, who was sitting, near the bed of the injured got recorded his statement PK, on the basis whereof, the first information report, was registered. During the course of investigation, the medico-legal report of injured Paramjit Singh, his x-ray report, showing the fracture of nasal bone, the truck, and the scooter, were taken into possession. The blood stained clothes i.e. shirt and pyjama of the injured, were also taken into possession. The statements of the witnesses were recorded. Criminal Appeal No. 306-SB of 1997 4 The accused were arrested. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Sections 148 and 307 read with Section 149 of the Indian Penal Code, was framed against the accused, which was read over and explained to them, to which, they pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case examined Dr. V.K. Jain (PW1), Dr. R.S. Bugalia (PW2), Amar Singh, Constable (PW3), Prem Chand, draftsman (PW4), Harnam Singh, Sub Inspector (PW5), Raghbir Singh, Head Constable (PW6), Jagmohan Singh (PW7), Dr. N.P. Jindal (PW8), Ram Phal, Head Constable (PW9), Jaspal Singh, complainant (PW10), Paramjit Singh, injured (PW11), Surjit Singh, Sub Inspector (PW12), and Jagan Nath, Sub Inspector (PW13). Thereafter, the prosecution closed its evidence. 5. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication, due to enmity, as some litigation was already pending, between them, and the complainant party. The accused also examined Sher Singh (DW1), to prove that, no such occurrence took place. Criminal Appeal No. 306-SB of 1997 5 6. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced Gurnam Singh, accused/appellant, and acquitted the remaining accused. 7. Feeling aggrieved, the instant appeal, was filed by Gurnam Singh, appellant. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, at the very outset, submitted that, no offence, punishable under Section 307 of the Indian Penal Code, was made out, but the trial Court, was wrong, in recording conviction and awarding sentence, under Section 307 of the Indian Penal Code, to Gurnam Singh, accused/appellant. The essential ingredients for constituting the offence, punishable under Section 307 of the Indian Penal Code, are as follows:- (i) An existence of intent, on the part of the accused, to commit a particular offence; (ii) some steps taken towards it, after completion of preparation; (iii) the steps must be apparently though not necessarily adapted to the purpose designed; (iv) it must come dangerously near to success; (v) it must fall short of completion of the ultimate design. An attempt, in order to be criminal, need not be the penultimate act. It Criminal Appeal No. 306-SB of 1997 6 is sufficient, in law, if there is present an attempt coupled with some over-act in execution thereof. For purposes of criminal liability, it is sufficient, if the attempt, had gone so far that the crime would have been completed, but for extraneous intervention, which frustrated its consummation. In order to determine the intention of the assailants, various factors and circumstances, are to be considered, such as the nature of the injuries caused; severity of the blow or its persistence; sufficiency of attempt and opportunity for causing injuries; intervention by others and the nature of weapon; the seats of injuries, and many other factors, which may afford assistance, in that regard. Now let us see, as to whether, the aforesaid ingredients, required for constituting the offence, punishable under Section 307 of the Indian Penal Code, are proved, in the instant case, or not. Paramjit Singh, PW11, is the injured, in this case. According to him, on 27.09.1993, he alongwith his uncle Jaspal Singh, was going, on scooter, bearing registration No. HYX- 9636, being ridden by him, and when they reached near Panjokhara Minor, truck bearing registration No. HR-01-A-5275, came from the back side, being driven by Gurnam Singh, and struck, against the scooter, from the back side. He further stated that both of them fell down. According to him, the truck stopped, at a distance of ten paces, and four persons namely Shamsher Singh, Jarnail Singh, Gurvinder Singh, and Mandeep Singh (since acquitted), came down, therefrom. He further stated that they raised exhortation that Paramjit Singh and Jaspal Singh, had escaped, and they be run over and killed. They again Criminal Appeal No. 306-SB of 1997 7 boarded the truck. The truck was brought towards the back side and when the same came near him (Paramjit Singh), he skipped towards pitches on the road side, to save him. He further stated that his uncle Bhupinder Singh, came there. He further stated that he became unconscious and came to senses, on the next day morning, in the hospital, at about 5.30 PM. During the course of his cross-examination, it was stated by him, that the accused after getting down from the truck, did not try to catch hold of him, or to give him beatings. He further stated, in his cross-examination, that he did not raise any alarm, at the time, when the truck was being reversed and coming towards their side, to run them over. It was further stated by him, in his cross- examination, that there were 10/12 shops, near the spot. Jaspal Singh, PW10, who was the pillion rider of the scooter, at the relevant time, made almost the similar statement, during the course of his cross- examination, as was made by Paramjit Singh. It was stated by Jaspal Singh, that after the registration of this case, accused Jarnail Singh, one of the accused, in the instant case, was murdered. He further stated that he alongwith Ranjit Singh, Devinder Singh, and Paramjit Singh,were challaned, in that case. He further stated that, in the murder case of Jarnail Singh, who was one of the accused, in the instant case, the Punjab Police, arrested them. He further stated, during the course of his cross-examination, that the accused, were having grudge, that they were supporting Ajmer Singh, etc. in the case, under Section 302 of the Indian Penal Code, wherein, they (accused) are the complainants. Dr. Criminal Appeal No. 306-SB of 1997 8 V.K. Jain, PW1, medico-legally examined Paramjit Singh son of Devinder Singh, and found the following injuries, on his person:- (i) Reddish contusion 3cm x 2 cm present on fore head 3 cm above right eye-brow. (ii) Multiple abrasions were present on the face and there was a bleeding per nose. (iii) Multiple abrasions were present on the right fore-arm and hand. (iv) Multiple abrasions were present on the left fore-arm. (v) Multiple abrasions were present on both knees. (vi) Multiple abrasions were present on the right dorsum of foot. All the injuries were caused by blunt weapon. The probable duration of the injuries, was within 24 hours. The nature of injury No. 2, after x-ray examination, was declared to be grievous, whereas, the remaining injuries, were declared simple in nature. From the evidence of Paramjit Singh and Jaspal Singh, it is proved, that there was previous enmity, between the parties. Had it been the intention or knowledge of Gurnam Singh, accused, to cause such fatal injuries, on the person of Paramjit Singh, as might have caused his death, he would not have allowed Paramjit Singh or Jaspal Singh, to escape. When Paramjit Singh, fell down, from the scooter, it was not at all impossible for Gurnam Singh, accused, to run over him, with the truck, or to cause such injuries, on his person, with the truck, or with some other weapon, as might have proved dangerous to his life. As stated above, during the course of medical examination of Paramjit Singh, all the injuries, on his person, Criminal Appeal No. 306-SB of 1997 9 except injury No. 2, were found to be simple in nature. At the most, it could be said that the intention of the accused was only to cause grievous injury, on the person of Paramjit Singh, and not to cause such injuries, on his person, as would have proved dangerous to his life. Even Dr. V.K. Jain, PW1, did not give any opinion, that the injuries, on the person of Paramjit Singh, could be dangerous to life. It appears that, only on account of enmity, which was persisting, between the parties, Paramjit Singh, and Jaspal Singh, concocted a story, that the truck was struck, against the back side of the scooter, on which, they were gong, with an intention to kill them. Jaspal Singh, complainant-cum-injured, stated that he sustained scratches, in this occurrence, but was not medico-legally examined. He further stated that he was treated by the doctor. He further stated that, he showed these injuries to the Police, at the time of his statement. He further stated that he never stated, in his statement, regarding the injuries, on his person, sustained by him, in the said occurrence. Had he sustained injuries, in the said occurrence, and given first aid by the doctor, he would have certainly examined him. If he had shown the injuries, to the Police, then the Police, would have certainly got him medico-legally examined. From the evidence, on record, it was, thus, not proved, that the ingredients required for constituting the offence, punishable under Section 307 of the Indian Penal Code, were fulfilled. Only an offence, punishable under Section 325 of the Indian Penal Code, for causing grievous hurt,with blunt weapon, on the person of Paramjit Singh, injured, was constituted, from Criminal Appeal No. 306-SB of 1997 10 the facts and circumstances of the case, and the evidence produced on record. The trial Court, was, thus, wrong in recording conviction, under Section 307 of the Indian Penal Code. The submission of the Counsel for the appellant, to the extent indicated above, appears to be correct, and is accepted. 10. No other point, was urged, by the Counsel for the parties. 11 In view of the above, it is held that the judgement of conviction and the order of sentence, rendered by the trial Court, recording conviction and awarding sentence, to the appellant, for the offence, punishable under Section 307 of the Indian Penal Code, being not based, on the correct appreciation of evidence, and law, on the point, are liable to be set aside, and, on the other hand, the appellant, is required to be convicted and sentenced, for the offence, punishable under Section 325 of the Indian Penal Code. 12. For the reasons recorded above, the appeal, is partly accepted. The judgement of conviction and the order of sentence, rendered by the trial Court, for the offence, punishable under Section 307 of the Indian penal Code, are set aside, and, on the other hand, the appellant, is convicted, for the offence, punishable under Section 325 of the Indian penal Code, and sentenced to undergo rigorous imprisonment, for a period 1- ½ years. The order of sentence of fine, and in default of payment of fine, as also the payment of compensation, shall remain intact. 13. The Chief Judicial Magistrate, shall take necessary steps to Criminal Appeal No. 306-SB of 1997 11 comply with the judgment with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit compliance report, within 02 months. 14. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court. 15. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action. 27.07.2009 (SHAM SUNDER) AMODH JUDGE