Gurcharan Singh vs The State of Punjab

Gopal Singh, J.—This is appeal by Gurcharan Singh. It is directed against the judgment of Shri Asa Singh Gill, Additional Sessions Judge, dated January 15, 1968. He has been convicted u/s 506, Indian Penal Code. Instead of awarding sentence of imprisonment and/or fine the trial Court directed that he be released on execution of a bond for Rs. 10,000 with one surety in the like amount to appear and receive sentence when called upon during three years from the date of the judgment and in the meantime to keep peace and be of good behaviour.

The facts of the prosecution case are as follows:-

Bhagat Singh and his brother Hari Singh are residents of village Rakba. Hari Singh is the President of the Managing Committee of the Gurdwara known as Damdama Sahib. The Appellant is Sarpanch of that village. There is a piece of land near the Gurdwara and is owned by it. Close to it, there is the village. school. The Appellant made an application to the Consolidation Officer for exchange of land situate bet-ween the school and the Gurdwara with another piece of land. That application was made eight months prior to the date of occurrence, which came off on March 19, 1966 The application was forwarded by the Consolidation Officer to the Settlement Officer. The latter sanctioned the exchange on March 19, 1966. Hari Singh got it proclaimed by beat of drum through Sardara Singh Chowkidar of the village that a tank would be dug up in the land the following day in the morning and that the villagers should offer their services for the purpose. The appe-llant stopped Sardara Singh Chowkidar from making that announcement and asked him to contact Bhagat Singh and Hari Singh and tell them to meet the Appellant. Sardara Singh informed them accordingly. Both the brothers proceeded to the village sath near the village gate. The Appellant was present there. It was 9.30 p.m. Amar Singh, Chanan Singh, Ram Singh, Santa Singh, Bhan Singh and Sunder Singh apart from other residents of the village were present there. The Appellant told Hari Singh that the land, where the tank was proposed to be dug. belonged to the Panchayat and he being the Sarpanch of the Panchayat would not allow the digging of the tank in the land. Hari Singh told him in reply that the land was the land of the Gurdwara and that there existed already a temporary tank and that it was that tank, which was to be dug down and deepened. The Appellant abused Hari Singh and his brother Bhagat Singh. He took out his pistol from the pocket of his pants and fired it. The shot, however, did not hit either of the two brothers. Out of fear, both the brothers ran into their cattle house closeby and bolted the entrance door from inside. After a few minutes, the Appellant carrying a rifle turned up in the lane in front of that house. There too, he hurled abuses at Bhagat Singh and Hari Singh and said that his maternal uncle Shamsber Singh was a member of the Legislative Assembly, that his Son was President of Zila Parishad and that he himseif had plenty of influence with the officers. Having said so, he added that he would kill the two brothers and that they could cause him no harm. It is stated that when the Appellant said so, the persons, who were sitting at the sath, were also attracted to the place where the Appellant was present in the lane. They dissuaded the Appellant from indulging in that type of conduct. The Appellant fired three rifle shots. Two of them are said to have struck the window of the house and the third hit its banera.

The following day in the morning Bhagat Singh left for Police Station Dakba to lodge report about the occurrence When he was just be-yond the outskirts of the village, police met him there. Bhagat Singh was told that the Appellant had made a report at the Police Station at 11 p. m. on the preceding day. No report was recorded by the police at the instance of bhagat Singh. The following day, Bhagat Singh went to Ludhiana to meet the Superintendent of Police. As the Superintendent of police was out of station on that day, no step was taken by Bhagat Singh. He made complaint Exhibit P. E to the Superintendent of Police on March 23, 1966 followed by two more complaints, one Exhibit P. F. dated April 5, 1966 and the other Exhibit P. G. dated April 6, 1966. No action seems to have been taken on these complaints. Finding that no action was being taken by the police at his instance. Bhagat Singh filed against the Appellant in Court regular complaint Exhibit P. A./l, dated April 11 1966 under Sections 307, 436, 506 and 511 Indian Penal Code. After recording evidence in commitment proceedings, Shri Harnam Singh Judicial Magistrate 1st Class, Ludhiana framed the following charge against the Appellant on December 27, 1966:

That you on or about the 19th day of March, 1966 at village Raqba, did an act, to wit, fired a pistol with such intention and under such circumstances that, if by that act you had caused the death of Bhagat Singh, you would have been guilty of murder and thereby committed an offence punishable u/s 307, Indian Penal Code, within the cognizance of the Court of Session.

As in course of commitment proceedings, the offence made out against the Appellant was one u/s 307, Indian Penal Code, the Appellant was committed for trial for that offence to the Court of Session.

The case of the prosecution was supported by the evidence of Bhagat Singh P. W. 1. Bhan Singh P. W. 2, Amar Singh P. W. 3, Chanan Singh P. W. 4 and Hari Singh P. W. 5 as eye-witnesses of the occurrence.

In his statement u/s 342, Criminal Procedure Code, the Appellant admitted that he had called Hari Singh and Bhagat Singh P. Ws., that there WaS some controversy between biro and them, that at that time he fired a pistol-shot as he had been taken in his grip by Hari Singh P. W. and apprehended that beating would be given by Bhagat Singh and Hari Singh with sticks, that the eye-witnesses were not present at the time of occurrence, that after some time while he was passing in front of the house of Bhagat Singh and Hari Singh P. Ws., they and sons of Bhagat Singh started throwing brickbats at him from the roof of their house, that the same struck him and that at that time too he fired a pistol shot in air to frighten them away.

The Additional Session Judge''s by his judgment dated January 15, 1968 found, on the basis of the evidence led before him, that no offence u/s 307, Indian Penal Code could be held to have been committed by the Appellant. He, however, took the view that the Appellant was guilty of offence u/s 506, Indian Penal Code.

Shri S. S. Kang appearing on behalf of the Appellant has contended that the prosecution have failed to make out a case of offence u/s 506, Indian Penal Code and that in any case the conviction of the Appellant for offence under that Section is illegal inasmuch as the Appellant was not charged for offence under that Section but for offence u/s 307, Indian Penal Code.

In his statement at the trial, Bhagat Singh P. W. stated that the Appellant came armed with rifle in front of their house and after abusing them told them that he was a man of great influence and had influential relations by referring to the names of Shamsher Singh and his son. He abused both Bhagat Singh and Hari Singh P. Ws. and told them that he would kill them and they would not be able to cause any harm to him. Bhan Singh P. W. has stated that the Appellant abused both the brothers and told them that he would kill them. Amar Singh P. W. has stated that the Appellant abused Bhagat Singh and Hari Singh P. Ws. and challenged them to come out and threatened them with dire consequence of their being killed. Chanan Singh P. W. has also clearly mentioned that when the Appellant came armed with a rifle in front of the house of Bhagat Singh and Hari Singh P. Ws, he shouted out to them in abusive language and told them that he would finish them. Similarly, Hari Singh P. W has stated in language unequivocal that after Bhagat Singh and Hari Singh P. Ws. had run into their house and bolted the door from inside, the Appellant came armed with rifle in front of their house and challenged them to come out and said that he would kill them. The above witnesses have so stated in their examination-in chief.

The above evidence leaves no doubt that the Appellant threatened Bhagat Singh and Hari Singh P. Ws. that he would kill them. Such a threat is an ''injury'' within the meaning of Section 44, Indian Penal Code as defined therein. It is this term, which finds place in the language of Section 503. Indian Penal Code defining criminal intimidation. Thus, the above evidence satisfies the ingredient of holding out of a threat to another with an injury to his person. The intention of the Appellant in so threatening the two brothers was to cause alarm to them. On evidence as led, the case is covered by Section 503 as punishable u/s 506, Indian Penal Code.

The Counsel for the Appellant contends that the Appellant having not been charged for offence u/s 506. Indian Penal Code and having been charged only u/s 307, Indian Penal Code, he could not be convicted for offence u/s 506, Indian Penal Code In order that the prosecution may succeed for offence of murderous assault punishable u/s 307, Indian Penal Code, it has to prove that the offender who committed the act of attempt to murder, had the intention or knowledge and committed that act under such circumstances that if by that act he caused death, he would be guilty of murder In other words, the prosecution must show that had the act of attempt to commit murder become fail accompli of murder, the case would have fallen within the definition of ''murder'' as given in Section 300 of the Indian Penal Code. The prosecution have, therefore, to satisfy that the act of the offender was done with such intention or knowledge and under the circumstances that if the consequence of death of the victim of the offender would have followed, the offence committed would have been one of murder.

The ingredients to be satisfied in case of an offence punishable u/s 506 Indian Penal Code are the ingredients of offence of ''Criminal intimidation'' defined in Section 503 of the Code. According to that definition, the two essential ingredients vis-a-vis the facts of the present case are as follows:-

(1) That the Appellant threatened Bhagat Singh with injury to his person;

(2) That he did so with intent to cause alarm to Bhagat Singh.

As reproduced already, the charge framed in the case provides that on March 19, 1966, the Appellant fired a pistol-shot with such intention and under such circumstances that if by that act he had caused the death of Bhagat Singh, he would have been guilty of murder. In course of trial in pursuance of that charge, the attention of the Appellant or his counsel would only be directed to the ingredients of that charge for purposes of his defence including the cross-examination of the prosecution witnesses, of the statement to be made by him u/s 342,Criminal Procedure Code for offering explanation of the material particulars of the case of the prosecution put to him and of adducing defence evidence to the charge as framed against him On the basis of the present charge, the Appellant could cross examine the witnesses, give explanations in his statement u/s 342, Code of Criminal Procedure and lead defence evidence to show that by virtue of his act, namely, the act of firing by pistol by him, the consequence of death of Bhagat Singh P.W would not have followed, that he did not do the act with the intention or knowledge that death would be caused and that he did not fire the pistol under the circumstances under which the result of death of Bhagat Singh P.W. could ensue. Even his statement u/s 342, Criminal Procedure Code, goes a long way to suggest that his explanation was directed to meet the particulars of the charge as framed and not of offence of ''criminal intimidation'' defined in Section 503, Indian Penal Code and punishable u/s 506, Indian Penal Code. The cross examination directed against the five eye-winesses produced in support of the case of the prosecution to establish the offence punishable u/s 307, Indian Penal Code in pursuance of the charge framed against the Appellant, does not show that the Counsel for the Appellant while cross-examining the winesses had or could have in his mind the remote idea of dealing with the material particulars of facts pertaining to the offence of criminal intimidation in order to repel or disprove the same. As referred to above, the ingredients of offence of criminal intimidation defined in Section 503 and punishable u/s 506, Indian Penal Code, are clearly different from the ingredients of offence u/s 307, Indian Penal Code. There is nothing common between the two. There is no justification for the conviction of the Appellant for offence u/s 506 Indian Penal Code when the Appellant was never charged for that offence. In the absence of charge under that section, the interest of defence of the Appellant has been seriously jeopardised and his case grossly prejudiced. He had no opportunity to defend his case against the offence of criminal intimidation. The idea of prejudice and failure of justice is inherently present in the failure on the part of the Court to frame charge u/s 506 in the alternative of that u/s 307. Indian Penal Code or to frame charge u/s 506 in place of charge u/s 307, Indian Penal Code. The conviction of the Appellant for offence u/s 506, Indian Penal Code when he was charged for offence u/s 307, Indian Penal Code is not merely an irregularity but is an illegality. The trial Court, while convicting the Appellant for offence u/s 307, Indian Penal Code, for which the Appellant was charged, took the view that as the offence u/s 307, Indian Penal Code was a very aggravated form of criminal intimidation by fire of a pistol, the Appellant could be convicted u/s 506, Indian Penal Code. No reason has been assigned by the trial Court for taking that view. As discussed above, the conviction of the Appellant is unwarranted and unsustainable.

In the result the appeal is allowed. The conviction of the Appellant is set aside and the direction to the Appellant to enter into a bond for Rs. 10,000/- with one surety in the like amount to appear and receive sentence when called upon during three years from the date of judgment of the trial Court is cancelled.