Palwinder Singh and Gurnam Singh vs State of Punjab

Nirmaljit Kaur, J.—This Order shall dispose of Crl. Appeal No. 1184-SB of 2006 and Crl. Appeal No. 1379-SB of 2006. Crl. Appeal No. 1184-SB of 2006 has been filed by Palwinder Singh, appellant and Crl. Appeal No. 1379-SB of 2006 has been filed by Gurnam Singh, appellant.

For the sake of convenience, the facts are being taken from Crl. Appeal No. 1184-SB of 2006.

As per the prosecution case, on 29.08.2000, the information was received in the Police Control Room, Majitha that Balwinder Singh son of Pritam Singh, resident of Wadala Kalan had got bullet injury and was admitted in Guru Nanak Dev Hospital, Amritsar. On receipt of the said informaiton, SHO, Police Station Beas along with other police officials reached Guru Nanak Dev Hospital, Amritsar from where he was told that the said patient had since been shifted to Guru Teg Bahadur Hospital. The SHO went to the said hospital and after obtaining opinion of the doctor that the patient was fit to make a statement, he recorded the statement of Balwinder Singh, injured. The prosecution story as revealed from the statement of Balwinder Singh is that on 28.08.2000 at about 8.30 P.M, he along with his brother Paramjit Singh and uncle Makhan Singh were coming from the fields and when they reached near Dera of Avtar Singh, three scooters came there and 2/3 persons were sitting on each scooter. They were Gurnam Singh, Palwinder Singh, Balwinder Singh, Dalbir Singh, Jaswant Singh and one another unidentified person. He identified all the accused persons. They stopped the scooter and came to them. Dalbir Singh gave Dang blow on his back. Gurnam Singh took rifle of his gunman and fired shot hitting on his chest in order to kill him. Another shot was fired by Gurnam Singh but the same did not hit him. Swaran Kaur, mother of Palwinder Kaur raised a lalkara that Avtar Singh be not spared as they had killed their son. His brother Paramjit Singh and Makhan Singh ran away. Gurnam Singh fired two shots from his rifle when they were running away but the shots did not hit them.

The investigation was conducted and the challan was put in the Court. Both Palwinder Singh and Gurnam Singh were held guilty and convicted u/s 307 IPC to under rigorous imprisonment for 6 years and fine of Rs. 1000/- each and in default, to undergo rigorous imprisonment for two months.

Palwinder Singh also received injuries on his person. On his statement, a separate case under Sections 332/353/323 IPC was registered against Balwinder Singh-complainant and Avtar Singh. He specifically stated that on 28.08.2000 when they reached near Dera of Avtar Singh, four persons armed with Dangs stopped their scooter and broke the lights of the scooter with dangs. Balwinder Singh alias Bedi complainant gave a dang blow on his head and then he gave dang blow on his back. Paramjit Singh, brother of Balwinder Singh-complainant gave him dang blows on his back. Avtar Singh alias Tary also gave dang blows to Gurnam Singh. Balwinder Singh and Paramjit Singh tore away his uniform and also tried to snatch his rifle. In defence, he fired a shot and the shot hit Balwinder Singh and then they all ran away from the spot. In this case, after the investigation of the case, police sent up the challan only against Balwinder Singh and Paramjit Singh. Paramjit Singh later on died. On the application u/s 319 Cr.P.C., accused Avtar Singh was summoned. As such, charge against Balwinder Singh and Avtar Singh was framed. Avtar Singh was not found guilty and Balwinder Singh was held guilty under Sections 323 and 353 IPC and was sentenced to under rigorous imprisonment for six months u/s 323 IPC and u/s 353 IPC to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/- and in default of the same further to undergo rigorous imprisonment for one month. Both the sentences were to run concurrently.

To prove their case, the prosecution examined Balwinder Singh (PW-1) and Dr. Gurmanjit Rai (PW-2). PW-1 Balwinder Singh deposed and corroborated the statement made by him in the FIR. PW-3 Makhan Singh is eye-witness and also supported the version of the prosecution. PW-1 Balwinder Singh, in his statement, deposted in no un certain terms that Gurnam Singh took the rifle from his gunman Palwinder Singh and fired a shot at him with an intention to kill him. He admitted that Palwinder Singh was the gunman of Gurnam Singh. Makhan Singh (PW-3) is the eye-witness. He also deposed that Gurnam Singh took the rifle from his gunman Palwinder Singh and fired at Balwinder Singh. Thus, it is nobody''s case that Palwinder Singh fired at Balwinder Singh. In fact, Balwinder Singh-injured and eye-witness both have stated that it was Gurnam Singh who fired at Balwinder Singh after snatching gun of Palwinder Singh.

The injuries found on Balwinder Singh, as per the statement of Gurmanjit Rai (PW-2), who medically examined Balwinder Singh, are as under:

1.Grazed reddish abrasion 3.7 x 1.5 cm on left side of abdomen. 11 cm from umblic at two o''clock position. It was obliquely placed.

2.3 x 3 cm irregular lacerated wound on left side of abdomen. 11.5 cm above anterior supperior ilaic spine. Blackoning and burning of margins of wound present and margins were found inverted. Clotted blood was present.

0.9 x 0.8 cm lacerated wound was present on left side of abdomen. 0.5 cm above injury No. 2 Margins were found having burning. They were inverted and clotted blood was present.

0.4 x 0.3 cm reddish abrasion on left side of abdomen. .4 cm above injury No. 2 at 10''o clock position.

3x5 cm and 2x5 cm reddish grazed abrasion were present on left side of abdomen. 5 cm from injury No. 2 at 3''o clock position.

2x1.5 cm reddish abrasion was present on left side of abdomen. 2 cm lateral to injury No. 5.

Multiple (10) reddish abrasion on left side of abdomen around injury No. 1. Their size vary from 0.2 to 0.1 cm.

2x0.5 cm reddish grazed abrasion on left side of chest 5 cm above injury No. 1.

1x0.5 cm reddish abrasion on left side of abdomen. 2.5 cm below injury No. 2.

2x1.5 cm lacerated wound was present on back side of left side of trunk. 7 cm lateral to mid line. Margins of wound were found everted.

20x1.4 cm lacerated wound on back of left forearm and left hand involving wrist, middle ring and little finger, muscles and bones and tendons were found hanging and pieces of vessels and skin were found lacerated. Bone was found fractured. The margins of the wound were found bunt singe and blackon.

0.8 x .5 cm and .7x.5 cm lacerated wound were present on back of left side of trunk. 1 cm and 1.5 cm below injury No. 1 at 6''0 clock position respectively to injury No. 1''o. The margins of the wound were found everted. Clotted blood was present.

PW-2 Dr. Gurmanjit Rai further deposed that all the injuries were caused by shot gun fire and further went on to say that the injuries mentioned in the MLR are from close range. Further, it is on record that as per P-9, Constable Palwinder Singh was provided as duty guard with Gurnam Singh and he was entrusted with one SLR No. 373 along with 2 magzine of cartride. Two empty cartridges of 7.62 SLR were recovered from the place of occurrence. According to the prosecution witness, injuries were caused by Gurnam Singh. Gurnam Singh has caused these injuries by snatching rifle of Palwinder Singh, his gunman, whereas, as per medical report, opinion of PW-2 Dr. Gurmanjit Singh Rai, the injuries mentioned in the MLR are caused by closed ranged fire from fire arm and possibility of injuries caused by 12 bore gun cannot be ruled out. Thus, the prosecution, in any case, has not been able to prove the case against Palwinder Singh.

Even otherwise, Palwinder Singh is the gunman of Gurnam Singh. He was armed with SLR. The fact of the SLR having been used to fire at Balwinder Singh is doubtful in view of the medical opinion above and the description of the injuries, which appear to be pallet injuries. The recovery of two cartridges fired from SLR are also explained which was admittedly fired by Palwinder Singh in self defence to scare away Balwinder Singh and others being gunman of Gurnam Singh. Palwinder Singh has received injuries. His uniform etc. was torn for which Balwinder Singh has also been convicted. Thus, justifying the firing in self defence.

In view of the above, it is apparent that there was another fire arm was involved. Injuries are not likely to be in the nature as found in this case if they had been caused by the SLR. No injuries appear to have been caused by the weapon i.e. the SLR used by Palwinder Singh to scare away Balwinder Singh and others in his self defence. As per the prosecution version that Gurnam Singh snatched the gun of Palwinder Singh and fired and the evidence on record, as well as, the medical opinion, Palwinder Singh, under no circumstances, can be held guilty of the commission of offence u/s 307 IPC.

Whereas, there is no doubt that the injuries have been caused by none else but Gurnam Singh whether it is by snatching the same from gunman or by another weapon. Gurnam Singh has been rightly convicted u/s 307 of the IPC.

Meanwhile, during the pendency of the present appeal, the matter was compromised between the parties. The compromise has been placed on record vide CRM No. 37241 of 2009. However, the said offence u/s 307 of the IPC is not compoundable. Hon''ble the Supreme Court in the case titled as Ishwar Singh v. State of Madhya Pradesh reported in 2009 (1) R.C.R. (Criminal) 1 while holding that offence u/s 307 IPC is not compoundable, reduced the sentence to already undergone and observed as under:

In Jetha Ram v. State of Rajasthan (2006) 9 SCC 255; Murugesan and Others Vs. Ganapathy Velar, and Ishwarlal v. State of M.P. JT 1988(3) SC 366 (1) this Court, while taking into account the fact of compromise between the parties, reduced sentence imposed on the appellant accused to already undergone, though the offences were not compoundable. But it was also stated that in AIR 1988 2111 (SC) such offence was ordered to be compounded.

In our considered opinion, it would not be appropriate to order compounding of an offence not compoundable under the Code ignoring and keeping aside statutory provisions. In our judgment, however, limited submission of the learned Counsel for the appellant deserves consideration that while imposing substantive sentence, the factum of compromise between the parties is indeed a relevant circumstance which, the Court may keep in mind.

Thus, in view of the above facts holding that under no circumstances Palwinder Singh can be convicted u/s 307 IPC, the appeal filed by Palwinder Singh, bearing Crl. Appeal No. 1184-SB of 2006 is allowed and the said Palwinder Singh is acquitted of the said charge as having been found not guilty.

The appeal filed by Gurnam Singh bearing Crl. Appeal No. 1379-SB of 2006 convicting him, is partly allowed. The order of conviction is upheld. However, taking into account that the appellant was on bail during the pendency of the present appeal and has already undergone about 16 months of actual sentence and the matter has been compromised, the sentence is reduced to that of having already undergone by the appellant-Gurnam Singh. The sentence of payment of fine is not disturbed. However, taking into account the poor paying capacity, Gurnam Singh shall pay just Rs. 15,000/- as compensation to the legal heirs of Balwinder Singh. Thus the Order dated 31.05.2006 passed by the Additional Sessions Judge, Amritsar is modified in the above terms. Disposed of in the above terms.