Harbans Singh vs The State

D. Falshaw, J.—The Appellant in this case, Harbans Singh. is a lambardar and gun licensee who was tried by the Sessions Judge, Jullundur, on a charge u/s 307, Indian Penal Code, i.e., attempt to murder, as a result of his having caused injuries to Hansa Singh, P.W. by firing his gun at him. He was, however, acquitted by the learned Sessions Judge of the charge u/s 307 and instead convicted u/s 337, Indian Penal Code, namely, causing hurt by rash and negligent act, and sentenced to pay a fine of Rs. 250 or in default to undergo four months'' rigorous imprisonment, Rs. 100 out of the fine, if paid, being made payable to Hansa Singh, as compensation.

The prosecution case was that the accused had joined on the side of their opponents in a quarrel in which Hansa Singh and his party were engaged, and had deli-barately shot Hansa Singh, who received about 50 minor injuries from pellets, mostly superficial, though 11 pellets had actually penetrated the skin to the small extent.

On the other hand, the defence version, which has been accepted by the learned Sessions Judge, for what appears to be adequate reasons, was that the lambardar had stood on the roof of his house, and after calling on the parties who were quarrelling in the lane outside to stop quarrelling and disperse, had fired his gun in the direction of a wall in order to break up the quarrel, and Hansa Singh had been hit by pellets which had ricocheted from the wall. This was borne out by the fact that there were pellet marks on a pacca wall in the lane of which a photograph had been taken at the instance of the police, and the 11 pellets which were taken from under the skin of Hansa Singh, by the doctor, were all knocked out of shape which could not be the result of their striking his skin.

The learned Counsel for the Appellant has argued that the conviction is illegal since an offence u/s 337, Indian Penal Code, is of a totally different kind from an offence u/s 307, Indian Penal Code, and so cannot be called a minor offence within the meaning of section 238 (2) of the Code of Criminal Procedure, which reads--

When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.

In convicting the Appellant the learned Sessions Judge has relied on the decision in Mohamed Cossim v. The King AIR 1938 Ran 220.

This was also a case of shooting with a shot gun, which had been fired at night, and the accused was tried u/s 307, Indian Penal Code, but in revision his conviction was changed by Mackney, J., to one u/s 337, Indian Penal Code, on the ground that the shot which injured the victim was not fired with the deliberate intention of killing him but at the same time was fired in the circumstances of the case with criminal rashness the case thus being on all fours with the present case.

However, it was argued that there is vast difference between shooting with an intention of killing and shooting without any such intention, but it seems to me that the essential part of the charge is that the accused actually injured the camplainant by firing at him with his shot-gun, and I cannot see any principle of criminal jurisprudence which debars a Court in the case of a charge of this kind from coming to the conclusion that while the shooting was not proved to have been done with the intention of killing, or even hurting, the victim, the shooting was done in such circumstances as to give rise to criminal responsibility on the part of the shooter on the ground of criminal rashness or negligence as contemplated in section 337, Indian Penal Code, and I thus consider that the conviction was quite proper and legal. I accept the appeal, however, to the extent of reducing the fine to the sum of Rs. 100 which has been made payable to'' the victim as compensation. The balance of the fine, if paid, is to be refunded.