Harinder Singh vs State of Punjab

J.S. Sekhon, J. (Oral)

Harinder, complainant, has moved this application under Section 439, subsection (2) of the Code of Criminal Procedure, 1973 for cancellation of the bail granted to Sukhjinder Singh, accusedrespondent No. 2, by the learned Sessions Judge, Faridkot, vide his order dated 181990 in a case for offences under Sections 302 and 307 of the Indian Penal Code and Section 25 of the Arms Act, inter alia on the ground that the learned Sessions Judge has taken a wrong view of the facts and circumstances of the case in coming to the conclusion that the offence would at the most amount to culpable homicide not amounting to murder, punishable under Sec. 304, Part II, of the Indian Penal Code. The learned counsel for the petitioner now wants to withdraw this petition but the learned counsel for the State supports this petition for cancellation of bail.

I have heard the learned counsel for the parties. The brief resume of facts relevant for the disposal of this petition is that there was a land dispute between Harinder Singh, complainant, and his brother Sukhjinder Singh, accusedrespondent. The grandfather of these two persons had executed a will bestowing 11 acres of land upon his son Simarpal Singh, father of the parties. The grandfather of the complainant had sown wheat crops therein. The complainant was asking to give 1/3rd share in the land, which resulted in exchange of hot words between these two brothers and their younger brother Dharmender Singh. On the next day at about 3.00 p.m., complainant, along with his wife Gurvinder Kaur (since deceased) and other witnesses was present in the courtyard of his house, while the parents and young brother of the complainant had gone to another house in connection with attending the Bhog ceremony. Suddenly, Sukhjinder Singh accused armed with a .315 bore licensed rifle arrived there and shouted that day he would give 1/3rd share in the land to the complainant. Immediately thereafter he fired the rifle shot at Harinder Singh complainant, but the wife of the latter intervened and the bullet hit her on right side of the chest and shoulder. She fell down. Sukhjinder Singh accused fired another shot with his ride which bit Gurvinder Kaur on her left hand. The accused again fired a third shot with his rifle which hit on the left arm of Harinder Singh, complainant. On the hue and cry raised by the witnesses the accused managed to escape along with his rifle. Mst. Gurvinder Kaur succumbed to the injuries on the way to the hospital.

Sukhjinder Singh accused then moved application for bail which was accepted by the learned Sessions Judge, Faridkot, vide impugned order dated 181990 by holding that where an intervene is murdered, the case would at the most fall under Section 304, Part II, of the Indian Penal Code and not under section 302 of the Indian Penal Code by placing reliance on the observations of the Supreme Court in Gurmail Singh and others v. State of Punjab, 1982 Criminal Law Journal 1916. The complainant then moved an application before the learned Sessions Judge contending that the offence would amount to culpable homicide amounting to murder, punishable under Section 302 of the Indian Penal Code. The learned Sessions Judge also rejected this application on the ratio of the above referred authority of the apex Court. In Gurmail Singh''s case (supra) on facts, the apex Court found that Gurmail Singh never intended to cause that particular bodily injury which in fact was found to have caused the death and thus the case would not fall under part II of section 300 of the Indian Penal Code. On the other hand, it was found that the intention of the accused in that case was to cause simple injury to Boga Singh and Gora Singh and that even if there was transmission of malice, since Teja Singh arrived at the scene of crime after the assault on the above referred two persons, the case would amount to culpable homicide not amounting to murder, whereas in the present case : the intent of Sukhjinder Singh accused kill his brother Harinder Singh complainant, is manifest as he had fired from his 315 bore rifle at his brother obviously with the intention to kill him, as he had aimed it on the vital portion of his body like chest, but due to the intervention of Gurvinder Kaur, the bullet hit her in the chest region and proved fatal. Thus the provisions of section 301 are well applicable in this case and would certainly result in the presumption that the accused had killed Mst. Gurvinder Kaur with the intention of causing her death and the case falls under firstly of Section 300 of the Indian Penal Code. Thus the view of the trial Court is palpably wrong as it appears that the trial Court had failed to understand the ratio of the decision of the Supreme Court in Gurmail Singh''s case (supra), but all the same it appears that the trial, Court would not have granted concession of bail to the accusedrespondent but for holding that he has committed the offence of culpable homicide amounting to murder.

The learned counsel for the respondent then contended that the accused having not abused the liberty of bail should be allowed to remain on bail even if he has committed the offence of murder, punishable under Section 302, Indian Penal Code. In support of his contention he has relied upon the observations of the Supreme Court in The State through the Delhi Administration v. Sanjay Gandhi, AIR 1978 Supreme Court 961. In that case, it was held by the apex Court that there are different considerations in allowing bail to the accused in certain offences and for cancellation of bail. In that case, certain witnesses had turned hostile and it was held that the bail of the accused respondent cannot be cancelled by presuming that he has tampered with the evidence. No doubt, in the case in hand, there is no direct allegation of tampering with the evidence but since the accused was granted the concession of bail, on the wrong assumption of he having not committed the offence of murder, and taking in view that the brother had killed the wife of another brother, it is not a fit case where the accused should be allowed to remain on bail during the pendency of the trial.

Thus under the circumstances, the impugned order of the learned Sessions Judge is quashed by accepting this petition. The trial Court shall he at liberty to reconsider the application of the accusedrespondent for bail after recording the evidence of the eyewitnesses.

The above referred observations shall, however, have no reflection on the merits of the case.

JUDGMENT accordinly.