65 IN THE HIGH COURT OF PUNJAB 8 HARYANA AT CHANDIGARH 1 c Crle AppealNoe 832B of2003 Dateofdecision2 September 26 2011 Hargobind and another Appellants Vs StateofHaryana 1 Coram Honble Mre Justice AeNeJindal 0 0 Presentl Mr JitenderDhanda Advocate for the appellants Mr KC GuptaSr DAG Haryanafor therespondenttate C45 AeNeJindal J I This is directedagainstthejudgment of conviction and Z sentencedated 4A003 by the learned Additional SessionsJudge Hisarconvicting and the 6herein referredas L the to undergorigorous for five years and to pay I flne of10001munder Section 307 IPC each rigorous for SlX months and to pay fine of2501 eachunder Section25 ofArms Act Z On 1101999 the Rajeshherein referred as 01 the lodgeda complaint with the policeofPolice StationCity Hisar that he was workingas Time Keeperof three wheelers runningat m Z stand At about 1200 pm on the said date the along Il withJoni son ofRam ChanderresidentofMill Gate Hisar was returning tO his house afleranswering the call of nature When both of them reached near the first street of the govemmentcolony the accused Narinderand came across them Narinder exhortedl Rajeshdushmanaa raha hai isko le enemy is comingand he be At tllis 1 fired Som his countrymadepistoland therebycausinginjuries onthe leftside ofhis chest Narinder also flred from hispistolbut it missed thetarget The fell down on the groundOoor whereas the accusedfledaway The motive behind the occurrence was the old rivalry Afterthe incident the was shiftedto Civil HospitalHisar by Krishan andJoni where he was medicoegallyexaminedand was refened to PGlMS Rohtakfor treatment The shirt worn bythe was RADHIKA 2015.03.10 13: 55 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 66 1 Crl AppeaINo 832SB of 2003 2 takeninto by the doctor and handed over to the Offtcer who took the same into The Officer reachedthe and recorded statement of Rajeshand sent the saine to thepolice station on the basis of which FIR was The case was and both the accusedwere challaned On cothmitment the accused was chargedunder Section307 readwith Section34 IPC and under Section25 of the Arms Act to which 1 theypleaded not guiltyand claimedtrial The in order to substantiatethe chargeseXamined 0 HC Jai 6PW19C Amar Singh00W29C Ram Kumar 6PW39K 0 Khurana InspectorPrem Singh6PW59Dr DayaNand W61 I C5 Sukhbir Raju Draftsman 6PW89Joni PW99 HC Bhim Singh I Dr Sunil Malik Wl 19 Sukhchain Singh Wl2 Rajesh PWl3l and ASI Hans Raj Wl4l The also tendered Z documents ExPl to ExP30 When under Section 313 CreC the accuseddenied tC a11the clrcumstances againstthem and pleaded I theirfalse in the case Z Thetrial resultedinto convictione heard Record m The star witnesses in thiscase are the Rajesh 7 and Joni 6PW99As usual thoughJoni 6PW99did not suppoltthe Z case and was declaredhostileyet Rajesh has fully Ill about the incident and the versionwhile the motive Pwl3I has statedthat on the intervellln of 11112101999 when he alongwith Joni had gone to answer the call of nature and on theirway back both the accusedattackedthem 1 Narinder raised lalkara for killingRajeshby who was havinga rl Narinder was also havingpistolHargobind fired the countrymade 1 flrst shot which hit him on thechest whereasshot fired byNarinder did not hit hime Aftercausingtheseinjuriestheyhad run away While attributing he has submittedthat he is an accusedin COnnectiOnWlth the murdercase of Narinder brother therefore in order to havc theyhad fired at him A lengthyand scorchingcrossm vengeance examination was upon him but no attackcould be made to his RADHIKA 2015.03.10 13: 55 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 67 r1 Crl Appeal No 832SB of2003 a and reliabilityHe has statedthat hehad seen the accusedfrom a distance of about 10 paces Theyhad come in front of them 8om the right side ofthewall Narinder Singhhad exhortedfrom a distance ofabout 10 paces and thereaRertheycame in front ofhim An argumenthas been raised that Rajesh6PW139has stated thatHargobind had Sred a shot at him from behind whereasthe injuryis on therightside ofhis chest therefore the medical evidenceis contradictory to 1 theocular version C In thisregardit may be observed that Rajesh0PW139 has 0 stated that when he tried to run away Hargobind ran behindhim and red a 0 shot in his rightplank It appearsthat though had run behind I C5 himhe must have reachednear him and in that situation an injurycould be I causedin therightplank The learned counselfor the has also contendedthat Z night tirne therefore the may have not been able since it was the assailants In this regardit may be observedthat the injured to 0 andthe accusedwere with each other so closelythat a case was I againstthe for the murder of brother of Narinder C0 Z SinghRajeshPWl39has lllrther statedthat therewasa lightin the street ep placeof occurrence As such Since thepartiesknew each other and m wasa lightin the street as statedbyRajeshPW139then thequestion there m of mistakenidentitydoes not arise For the sakeof argumentevenif there Z lsno light in the street then in thegivencircumstancesthis case cannot be Il said to be of mistakenidentityReliance in this regardcould be placed Oll the deliveredbythe ApexCourt in case Subramani and another vseStateRep By InspectorofPolice2011 RAJ 23 Thenext contentionraised by the learned counsel for the is that the case is a concoctedone due to old rivally Il In thisregardit may be observedthatno concoctioncould be smelt from the facts and circumstancesofthe case The allegations are thatRajeshPW13 themurder case of Narinder Singhsbrother but the was an accused111 injury as caused to the was attributed to HargobindNo such hasbeen disclosedbetween and the As the argumentwith regardto delayin lodgingthe FIRit may beobservedthat 8om the varianceofthe timewhen the alleged RADHIKA 2015.03.10 13: 55 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 68 Crl AppealNo 832eSBof2003 4 occurrence took placetsnotso muchas to record any suchdelayin lodging theFIR The occurrence is statedto have takenplaceat l l 3O pm Rajesh was shiftedto Civil HospitalHisar in an autorickshaw Dr DayaNand PW61 has statedthat he sent ruqa to thepolicestationand had also medico legallyexamined the injuredat 1 25 am on 12101999 Prem Singh PW51had reached the hospital at lAO am andrecordedthe statement of RajeshPW139on the basisofwhich FIRwas recordedat 25O ame Thus m no time was wastedby the Of6cer in recording the statement of the injured and sendingthe same to the policestation for 0 ofthe FIR 0 No merit could be found in the contentionraised bythe learned I t5 counselfor the appellants thatthoughHargobind is statedto have fired from I 12 borepistolbut the said pistolwas not recoveredfrom him In fact 3 15 borepistolwas recoveredfrom him Further the countrymadepistoiSO Z recovered from Narinder Singhwas not Ill workingcondition therefore it createsdoubt over the case 0 Havingconsidered the contention the same sans any merit I Theincident took place on the nightof 1 1112101999 whereas Z the pistolwas recoveredfrom the accused on 26 101999 Since 12 bore pistolcould not be checkedas its firingpin was not working Since long 00 delay took placein recovery of the weapons Narinder Singhmighthave 7 broken the pistolafter firingthe shot or it may have brokenperlance aer Z tlring a shot However a reportof the Forensic ScienceLaboratoryclearly Qm proves that of combustionof smokelesspowderwas detectedfrom thebarrelsof both madepistolsThis corroboratesthe versionthat shotswere firedbyeach ofthe accused Dr DayaNand PW69 had also found the hole in the shirt worn by the injured Blackening on the shirt was also found to be present The shin of Rajesh was takeninto by the policeand it was also sent to the ForensicScience for analysisThe reportExP28 as by the Forensic Science indicates that discharge residueand led wasdetectedin themarginsof the hole In the shirt of Rajeshblackening wasalso aroundthehole Nforeover it is also clear from thereport Ex29 and ExP30 that human blood was presenton the shirt of Rajesh Howeverit is evident that both the accused had flred from the weapons RADHIKA 2015.03.10 13: 55 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 69 1 Crle AppealNoe 832SB of2003 5 the escaped the shot fired byNarinderSingh Learnedcounsel for the has tried to convince this Courtthat 12bore pistolwas firedbyHargobindbut recovery of 3 15bore pistol was effectedfrom him therefore he cannot be connectedwith the 6re arm from him In this regardit may be observed that the in his ExP6 as well as in his statement while as PW13 hastestiOedthatthe accusedOred one shoteachwith 1 an to kill him He has not disclosed as to which of these two accusedhad fired with whichweapon Similarlyreport ExeP28 Of the 0 Forensic Science establishesthat fires were shot from both the 0 pistolsIt may also be possible that the accused may have the I C5 weapon or accused did not getthe 12 bore pistol I recovered The next raised by the learned counsel for the Z that no medicalopinionhas beenplacedon the record in order to establishthat the injuriesOIl theperson of Rajeshwere to life tr thereforethey could not be convictedfor the offenceunder Section 307 or I 307read with Section 34 IPC t Z In this in order to determineif offence under Section 307IPC is made out or not2 We are to fall back upon the intention and 00 of the accused The nature of the injuryweapon used motive m of the bodychosen and other circumstances The nature of injury Z which may be simpleoneis immaterialand is not sine qua to prove the Llm offence In the instant case one injury was found on the person of Rajesh asdisclosedbyDr DayaNand PW69which is describedas under 1 There was wound with and inllerted marginscircular ln shape 18 cms in diameter lyingover lateral aspectof left 1 side of chest 14 cms belowlevel of nippleThere was red 1 abrasion collararound this wound Fresh bleedingjrom the woundwas present 51 J Dr Nand 6PW6hadopined that the injutywas the result offlre arm He has8lrtherstatedthat bullet had not coine out of thebody ofRajeshand it remainedembeddedin the muscle Dr Sunil Malik who had examinedRajesh had detectedradio opaque shadow of RADHIKA 2015.03.10 13: 55 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 70 Crle Appeal No 832SB of2003 6 metallicdensityjustopposite the 12 vertebra The injurywas justbelow the of the chest The accusedpersonshad previousenmitywith tlle They to have come out ofthe house on Seeing the injUrOd Oom the field aRer answering the call ofnature Both the accused flredone shot each Under thesecircumstances ofthe fact that theinjurywas not fatal yet the accusedcould be convicted for the offence underSection 307 IPC I find supportto my this view from the judginent m by the ApexCoun SarjuPrasad vse State ofBihar 1965 AIR t 6SC843 wherein it was observedas under 1 0 0 All thesedecisions were consideredby this Court in Om 6 I C5 Prakash ve State of Punjab 1962e2 SCR 254 and I thoughCassids case 4 Bom HC 17 was not dissentedfromthe actual Vlew taken by this Z Courtis more in consonance with the vlew taken b BeaumontC In Gogtescase anli the viewl taken by r theAllahabadHighCourt in Niddhas case ILR 14 All I 38than that taken in Cassidys case 4 Bom HC 6CI17 Z In Gogtescase no lnJury was In factoccasionedto the victim Sir Earnest Hotsou the then actingGovernor oo dueto a certain obstruction Even so the assailunt 3 Gogtewas held bythe court to be jointlsicunder Z Sections307 because his act of flring a shot was n committedwith a guiltintention and knowledge and ll1 suchcircumstances that but for the irlterveningfact it wouldhave amountedto murder in the normalcourse events Thisview as oved bythis Court Therefore the mere factthat the iniunl actuallv inflictedbv the 4 did not cut any vital organ ofShankarPrusad is not bv itself su8icient to take the act out of the LurviewofSections307 7 Xx Xx XX 8 The onlyother questionthen is whetherthe intendedto suchinjuryas he knew to be Iikelyto cause causedeath or intendedto in8ictan injurywhich was RADHIKA 2015.03.10 13: 55 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 71 Crle Appeal No 832SB of2003 7 4 sufcient in theordinary course ofnatureto cause death or that he knew that his act was so that it must in all probabilitycause death or case an lnjury as lS likelyto cause death 9 It is true that thewitnesses saythat theappellantused a chhura It is also true that the injurywas inflicted on a vitalpart of the bodybut the act remalns that no vital 1 organ ofthebodywas injuredtherebyAgalnwe do not 0 know howbigthe chhura was and thereforeit cannot 0 be said that it was long to penetratethe 0 abdomendeepenoughto cause an injury to a vital I organwhich would in the ordinarycourse ofnature be C40 I fatal The chhura could not be recovered bUl the should at least have elicited fronl the Z witnessesparticulars about its size L While upon SarjuPrasads case the Apex I Court in case Vasant Vithu Jadhav vs State 2004 0 JeT rm3 Z 267observedas under l 11 Cl In the aforesaid factualscenario it has to be seen V2 whetherSection 307 has Section 307 IPC reads Z asfollows Whoever does any act with such intention or and under such circumstances that if he by that act causeddeath he would be guiltyof 81urder shall be with imprisonmentOf eilher 1 for a term which may extendto ten years andshall also be liable toline and ifhurtis caused to any person bysuch act the oender shall be liable ither to life or to such as mentioned Il lS To justifya comction under this Section it is not essentialthat bodilyinjurycapableof causing death should have been Althoughthe nature of injuryactually RADHIKA 2015.03.10 13: 55 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 72 Crl Appeal Noe832SB of2003 m8 causedmay oftengiveconsiderable assistance ln COmingt a f7ndingas to theintention of the accused such intention may also be deducedfromother circumstances and may even In some cases be ascertained without any at all to actualwounds The Section makesa distlnction between an act oftheaccusedand its result if any Suchan act may not be attendedby any result so far as the personalassaultedlS 1 concernedbut still there may be cases in which the culprit r wouldbe liable under this Section It is not necessary that the 0 lnJUYY caused to the victim of the assault should be 0 sufcientunder ordinarycircumstances to cause the death of I theperson assaulted What the Court has to see is whether the 0 I act of its result was done with the intention or and under circumstances mentionedin the Section Z Anattemptin order to becriminalneed not be the act It is sufcientinlw if there is presentan intent coupl r1 withsome overt act in executionthereof It is tojustify a conviction unclerSection 307 if Z there lS presentan intent coupledwith some overt act in executlon thereo It is not essentialthcltbodilyinjurycapable CO of causingdeath should have been inlicted The Section 7 makes a distinction between the act of the accusedand its Z result if any The Court has to see whether that act 0 of its result was done with the intention or and undercircumstars mentionedin the Seclion Thereforeit is not correct to acquit an accused of the charge underSection 307 IPC merely becausetheinjuriesinllicted on thevictim were in thenature ofasimplehurt tl Further theApexCourt in case Hari Mohan Mandal vs State 200449JT 3770bservedas under 14 there was intention to kill or that deathwill becausedis a questionoffactand would depend on thefactsof a givencase Thecircumstance that the i11jury RADHIKA 2015.03.10 13: 55 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 73 ErIeAppeal Noe832SB of2003 e 91 inflicted bythe accused was simple or minor will not byitself rule out of Section 307 IPC The determinatlve is intention or as the case may be and not natureoftheinjuy TheHonble Division Bench of this Court ln case Dre AeGe v UTe Chandigarh 1989 CrleLJe 214 observedas under 1 16 This brings us to the real controversyas to what 00ence 0 the appellant hascommittedls has been indicated rightln U theopeningpart ofthe he has beenconvicted under I C5 S 307IIC In order to attract the of this I sectionto thefactsofthiscase it is necessary tojndout thatif thevictim had met with death could the ofne be one under Z 302lPC It is well settledthatfor conviction under Section S 307 IP iftheintention or necessary knowledge to cause death as byS 300 IPC which definesnlurder is I there then it is immaterialwhether or not any hurt was caused Z to the victim bythe accusecl In other words an act though in the ovdinarycourse of nature to cause death m would not constitute an under this section if the 7 intention or on thepart oftheaccusedIS Z Thus for thepurposes ofthis 0Hence what is material and not the consequenceof the is the intention or actualact donefor thepurpose of carryingout that intention Intent impliespurpose and attemptis an actual effort made in executionofthepurpose Therefore an attempt forthepurposefS307 1PC shouldstemfrom tlzespecic 1 intention to commit murder Intention and knowledgebeing mans state of mind cannot be provedby direct evidence thereof exceptthroughlS OWYl confessionnthe absence of sucha confession theycan be onlyby circumstantial evidenceIn other words theseare matters of inference from allcircumstances availablein a case Suchcircumstancesmay well be motive thepreparation made the declalation if a11Jl RADHIKA 2015.03.10 13: 55 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 74 Glrl Appeal No 832B of2003 r 1 madebythe 0Hender at the time of commisslon of the oence the weapon used the nature of injuriesactuaUy HallinggivenOUr consideration to the entire matter in the lightof the evidence on record we are oftheopinion that both these ofS 300 LlC are lackingin thls case 1 Nowcomingto the other argument that Narinder Singhhaving C not caused any injury could not be convictedunder Section 307 with the 0 aid of Section 34 IPC The of Section 34 IPC became tlle 0 ofcontroversyin so but recentlytheAPeXCOUrtin I C5 case Nand Kishore ve State ofMadhyaPradesh 20141 Recent Apex I 179 CJ explained as under Z 1 Criminal act is donebyseveraIpersons7 2 Suchact is done in of common intentionof a and I 3 Each ofsuch persons is liablefor that act in the same r Z manneras ifit were done byhim alone 4 WhileIwst two are theacts which are attributableand m oftheaccusedthe third ha17e to beproved as actions 1S 7 the consequence Z 5 Once criminalact and common intentions are proved oflaw criminalliabilityof havingdone then thatact byeachIoersoninclividually would arise 6 Every individualmember of the entire group charged with the aid of Section 34 must thereforebe a participant in thejoint act which is the result of their 1 combinedactivity 7 Every individual0nder is associated with criminal act bothphysically and mentally 8 CourtS 171UStceepin mind the17nedistinction betMeen common on the one hand and mens rea as understoodln criminal on the other intention is not alike or identical to mens rea RADHIKA 2015.03.10 13: 55 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 75 Crl Appeal No 832SB of2003 11 1 The lattermay be concidental with or collateralto the former but theyare distinct and dierent 9 Section34 also deals with constructivecriminal lialoility Ifthecommon intentionleads to the commissionofthe criminal once chargedeach one of the persons sharing the common intention is constructively liablefor thecriminalact donebyone ofthem 1 09 Common intention or state ofmind and thephysical act bothmay bearrivedat the spotand essentially may not 0 bethe result ofanypre determinedplanto commit such 0 619RCR rlJ 565 relied 1995 an I C5 RCR 6CrlJ 127 1999 619 RCR l 845 Il I Z thiscase also the accusedhad come out in the dreadOfniht In with fire arms they had previouseninitywith the injurect C raisedlalkara not to sparethe cor7lainantwhich also indicatesthe I intention to have revengeof the murder of their brother Theyin Z oftheir common intentionhad fired one shot each Thoughfire shot byNarinder Singhmissed yet he had in the Cn ofthe crime As such it cannot be said that he had no common 7 intentionin thejointact which is the result oftheir combinedactivity The Z common intention as wellas mens rea in the case are well established Om trialcourt appearsto have rightlyconvictedNarinder Singh thereforethe withtheaid ofSection 34 IPC N0 other argument hasbeenraised Inthe wake of the aforesaiddiscussions this court is of the opinionthat the has been successfulin establishing theoffenceunder Section307134IPC Since the offence under Section 307 IPCis a graver offence therefore conviction need not be recordedunder Section25 ofthe Arms Act flndingno ment in the appealthe same 1S dismissed 26 2011 cleepa Judge RADHIKA 2015.03.10 13: 55 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document