Criminal Appeal No.375-SB of 2002 v. State of Punjab

CORAM : HON'BLE MR. JUSTICE MOHINDER PAL. Present: Ms. Sushma Chopra, Advocate, for the appellant. Mr. K.D.Sachdeva, Deputy Advocate General, Punjab. -.- MOHINDER PAL, J. This appeal has been preferred by appellant Balwinder Singh against the judgment of conviction and the sentence order dated 23.1.2002 passed by the learned Additional Sessions Judge, Mansa, convicting and sentencing him under Section 304 Part I of the Indian Penal Code (for short `the Code') and Section 27 of the Arms Act (for short `the Act'). For the former offence, the appellant was sentenced to undergo rigorous -2- Criminal Appeal No.375-SB of 2002. imprisonment for ten years and to pay fine of Rs.10,000/- in default whereof to undergo further rigorous imprisonment for six months. For the latter offence, he was sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1,000/- in default whereof to undergo further rigorous imprisonment for one month. The substantives sentences of imprisonment were ordered to run concurrently. The amount of fine, if recovered, was ordered to be paid to the heirs of Makhan Ram (deceased) as compensation. The facts of the prosecution case, in brief, are that on 11.7.2000, Makhan Ram, a Punjab Home Guard Volunteer (since deceased) and Kaur Singh, Head Constable, were taking meals in the mess of Police Station Bareta. It was about 10 P.M. In the meantime, appellant Balwinder Singh, who was a Constable, came in the mess to drink water. Makhan Ram (deceased) taunted him that he was carrying revolver around his waist and that he should get a rifle issued in his name. Balwinder Singh retorted that he should mind his own business and take his meals. Saying so, the appellant took out his revolver and fired a shot hitting Makhan Ram on his neck under the chin. The blood started oozing out. Kaur Singh, Head Constable, started taking care of Makhan Ram. The appellant, throwing his revolver on the table in the dining hall, took to his heels. On hearing the revolver shot, Rajvinder Singh, Constable and Boota Singh, Sentry, came in the dining hall. Makhan Ram succumbed to the injury at the gate of the dining hall when he was being -3- Criminal Appeal No.375-SB of 2002. removed for his treatment by Kaur Singh and Rajvinder Singh. Nachhattar Singh, Assistant Sub Inspector, also happened to be present at the gate as he was coming for taking his meals. Kaur Singh informed about the occurrence to Joginder Pal Singh, Inspector. On completion of investigation and necessary formalities, challan was put in the Court against the appellant. The appellant was charged under Section 302 of the Code and Section 27 of the Act. He did not plead guilty to the charge and claimed a trial. At the trial, the prosecution examined Assistant Sub Inspector Nachhattar Singh (P.W.1), Amrik Singh, Head Constable (P.W.2), Dr. Sohan Lal Arora (P.W.3), Kaur Singh, Head Constable, the complainant (P.W.4), Jagnandan Singh, Inspector (P.W.5), Balbir Singh (P.W.6), Gurdev Singh, Head Constable (P.w.7), Ravinder Kumar Goyal (P.W.8), Joginder Pal Singh, Inspector (retired), Investigating Officer (P.W.9) and Jagdish Kumar, Constable (P.W.10). After the closure of the prosecution evidence, statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, in which he denied the prosecution allegations and stated as under:- “ I am innocent. I have been falsely implicated. I did not run from the spot and was arrested by Inspector Joginder Pal Singh -4- Criminal Appeal No.375-SB of 2002. on 11.7.2000 from the place of occurrence along with my revolver. F.I.R was recorded under the instructions of S.P(D) and S.P (H) and at the time of alleged occurrence, H.C Kaur Singh and Assistant Sub Inspector Nachhattar Singh were not present. F.I.R in this case was recorded in my presence in the morning of 12.7.2000. Deceased Makhan Singh was my close friend and we used to live and eat together. On 11.7.2000 Makhan Ram was taking his dinner at 9.00 P.M and at that time he had kept his 303 rifle on the dining table and as soon as I entered the dining room, he taunted me for keeping revolver with me. I requested him not to misbehave, but he started hurling abuses upon me in filthy language and did not desist from abusing me, in spite of my requests. Then I also got enraged and said that in case he did not stop, I may shoot him as I was under grave and sudden provocation due to abuses, hurled deceased Makhan Singh. When he did not stop abusing, I tried to take out my revolver from my holster which was already loaded and pushed the cartridge from magazine -5- Criminal Appeal No.375-SB of 2002. into chamber by operating the bloc of the revolver and he was lifting the rifle and was aiming the same towards me in order to shoot me and in exercise of the right of private defence of my person and under grave and sudden provocation, I fired shot at Makhan Singh which hit on his neck. All these facts were verified by Inspector Joginder Pal Singh, S.P (D) and S.P (H), but even then they did not bring the same version and fabricated this F.I.R against me as deceased was a Punjab Home Guard Volunteer.” No evidence was led by the appellant in defence. I have heard the learned counsel for the parties and have gone through the records of the case. The occurrence in this case has been admitted by appellant Balwinder Singh in his statement recorded under Section 313 of the Code of Criminal Procedure, which has been reproduced above. Appellant Balwinder Singh has also admitted his presence at the spot in his statement recorded under Section 313 of the code of Criminal Procedure. The question requiring determination is as to whether the act of causing bodily injury to the deceased with a firearm by the accused amounted to culpable homicide not amounting to murder and the act by which the death was caused was done with the -6- Criminal Appeal No.375-SB of 2002. intention of causing death, or of causing such bodily injury as was likely to cause death. As would be noticed hereinafter, the act of the accused of causing bodily injury with a firearm to the deceased was done with the intention of causing death, or with the intention of causing such bodily injury as was likely to cause death. As such, the offence committed by the appellant, as is proved by the evidence led by the prosecution, would fall under Section 304 Part I of the Code. Dr. Sohan Lal Arora (P.W.3), who had conducted autopsy on the dead body of Makhan Ram, opined that the death in this case had occurred due to shock and haemorrhage resulting from the bullet injury in the chest, which was sufficient to cause death in the ordinary course of nature and this injury was ante mortem in nature. It has come in the evidence of the prosecution witnesses that hot words were being exchanged between the accused and the deceased. The deceased had not picked up his rifle from the table for opening attack on the accused. Even if it is assumed that the accused had any threat from the deceased, he could have fired at the non-vital part of the deceased because the deceased was at a short distance from the accused. Further more, if the deceased was hurling abuses or calling bad names to the accused, in that eventuality the accused could have also paid back in the same coin instead of resorting to fire shot from his revolver at the vital part of the body of the deceased. Confronted with the facts and circumstances of the case, in fact, learned counsel for the appellant could not seriously challenge the case of the prosecution and prayed for -7- Criminal Appeal No.375-SB of 2002. leniency in the matter of sentence awarded to the appellant. For the aforesaid reasons, I do not find any fault with the judgment of conviction recorded by the trial Court. The conviction of the appellant under Section 304 Part I and Section 27 of the Act is hereby confirmed. Insofar as sentence of maximum rigorous imprisonment of ten years awarded to the appellant for the said offences, he has already undergone more than two years and eleven months of actual sentence, as is evident from the custody certificate placed on record. The occurrence relates to 11.7.2000 and as such the Sword of Damocles has remained hanging over the head of the accused for the last more than nine and a half years. Taking into account the facts and circumstances of the case, I am of the considered opinion that ends of justice will be adequately met with if the sentence of maximum rigorous imprisonment of ten years awarded to the accused by the trial Court for the offences under Section 304 Part I of the Code and Section 27 of the Act, as both the sentences were ordered to run concurrently, is reduced to rigorous imprisonment for four years and the sentence of fine and the default clause are left unaltered. I order accordingly. With the above modification in the impugned sentence order, this appeal is hereby dismissed. February 26, 2010. ( MOHINDER PAL ) JUDGE