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PETITIONER: GURDIAL SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT21/08/1995

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) NANAVATI G.T. (J)

CITATION:  1995 AIR 2468            1995 SCC  Supl.  (3) 451  JT 1995 (6)   140        1995 SCALE  (4)837

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE. J      Darshan Singh,  Mukhtiar Singh  and Gurdial  Singh, the appellant herein,  were tried  by the  Judge, Special Court, Ferozepore for  committing the  murder of  one Ram  pal with fire-arms in  furtherance of  their  common  intention.  The learned Judge acquitted Darshan Singh and Mukhtiar Singh but convicted the appellant under Section 302 I.P.C. and 25 Arms Act. and  sentenced him  to suffer imprisonment for life for the first  conviction and  rigorous imprisonment  for  1.1/2 years for  the other,  with a  direction that  the sentences would run concurrently. Hence this appeal.      According to  the prosecution case the deceased and his father Amrit  Lal (P.W.3)  used to  run  a  kirana  shop  in village Machhi Bugra. On June 2, 1984, at or about 6.30 P.M. when Ram  pal had  come out of the shop to down its shutters the three  accused came there on a scooter driven by Darshan Singh. The  appellant and  Mukhtiar Singh then got down from the scooter  and shot at Ram Pal with the fire-arms, each of them was  carrying, resulting  in his  instantaneous  death. Thereafter all  of them ran away on the scooter. Finding his son dead,  Amrit lal rushed to the police station to lodge a report.      S.I. Joginder  Singh (P.W.4)  recorded the  F.I.R.  and after making  arrangements to send the special report to the Ilaka Magistrate left for the spot accompanied by Amrit Lal. Reaching there he held inquest upon the dead body of Ram Pal which was lying in the lane in front of the shop and sent it for postmortem  examination. He  then inspected the spot and collected some  blood stained  earth,  six  empties  of  two different bores  and made  separate sealed  parcels for  the same. After  completing the investigation at the spot. p.w.4 went in  search of  the accused  persons  and  succeeded  in apprehending the  appellant on  that very  night.  From  his possession he  seized a  12 bore  gun and  25 cartridges and

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sealed them.  He sent all the seized articles to the experts for their  opinions and  on receipt  of  their  reports  and completion of investigation submitted charge-sheet.      The accused  persons pleaded  not guilty to the charges levelled against  them and  contended that they were falsely implicated. To  prove its  case the  prosecution relied upon the ocular version of the incident as given out by P.W.3 and other evidence  adduced in  support thereof.  No witness was however  examined on behalf of the accused persons.      In recording  the  impugned  order  of  conviction  and sentence against  the appellant the learned Judge found that the evidence  of  P.W.3  stood  amply  corroborated  by  the recovery of  two empty  cartridges from  the  spot  and  the report of  the Ballistic  Expert which showed that those two cartridges had  been fired  from the  gun which was with the appellant at  the time  of his  arrest and was seized. As no such corroborative  evidence was available in respect of the other two accused the learned Judge did not feel inclined to rely solely  upon the  evidence of  P.W.3 to  convict  them. Accordingly he gave them the benefit of reasonable doubt.      Having carefully  gone through the evidence of P.W.3 in the light  of other  evidence appearing on record it appears to us  that the  finding  of  the  learned  Judge  that  the appellant shot  at the  deceased with a gun causing injuries on his person is unassailable. Considering the fact that the incident took place in front of the shop of P.W.3 he was the most natural and likely witness. His evidence, which was not in any  way shaken  in cross-examination, gets ample support from the  evidence of  Dr. Jaspal  Singh  (P.W.1)  who  held postmortem examination  on the  dead body and found, besides other injuries,  two lacerted punctured wounds corresponding with each  other which  according to  him could be caused by gun. if fired from a close range. The next piece of evidence which corroborates  PW 3  is the  FIR which  was lodged with promptitude, we  next get,  from the evidence of P.W.4. that in that  very night, at or about 2.30 A.M. the appellant was arrested and  a 12 bore gun and 25 cartridges were recovered from him.  The report  of the  Director of  Forensic Science Laboratory (Ex.P.17)  proves that the empties recovered from the spot  by pw  4 had  been fired  from his  gun. The other piece of  circumstantial evidence, which also to some extent corroborates the  case of  the prosecution,  is furnished by the fact  that the  earth that  was seized  by PW 4 from the spot was  found by  the Chemical  Examiner to  contain human blood.      The next  question that  falls for our determination is whether on  the above findings the trial Judge was justified in  convicting   the  appellant   under  Section   302   IPC simpliciter, after  having acquitted  the other  two accused who along  with the appellant were being tried under Section 302 IPC  with the  aid of Section 34 IPC. This aspect of the matter assumes  importance for  PW 1  found four injuries on the person  of the  deceased which  according  to  him  were caused by  two types  of  fire-arms  and  were  collectively sufficient in  the ordinary course of nature to cause death. He, however,  did not  state that the two injuries caused by the gun which are atributable to the appellant’s firing were sufficient to  cause death in the ordinary course of nature. In other  words, in view of the opinion of the doctor it can not be  conclusively inferred  that the death of Ram Pal was caused by  the injuries  inflicted by the appellant alone so as to make him liable under Section 302 IPC simpliciter.      The above  finding of  ours, necessarily, begs also the question  whether  the  appellant  can  be  convicted  under Section  302   IPC  with   the  aid   of  Section   34  IPC,

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notwithstanding the acquittal of the other two accused.      In Maina  Singh vs. State of Rajasthan (1976) 2 SCC 827 a question  arose as  to whether  an accused who faced trial with four  others on charges under Section 302 IPC read with Section 149  IPC could  be convicted  under Section  302 IPC read with  Section 34  IPC if the other four were acquitted. In deciding the question this Court considered earlier cases which dealt with similar question and held:-      "As has  been stated,  the charge in the      present case  related to  the commission      of the  offence of  unlawful assembly by      the appellant along with the other named      four  coaccused,   and  with   no  other      person. The  trial in  fact went on that      basis  throughout.  There  was  also  no      direct  or  circumstantial  evidence  to      show that  the offence  was committed by      the  appellant   along  with  any  other      unnamed person.  So when  the other four      coaccused have been given the benefit of      doubt and  have been acquitted, it would      not be permissible to take the view that      there must  have been  some other person      along with  the appellant Maina Singh in      causing the injuries to the deceased. It      was as  such not  permissible to  invoke      Section 149  or Section  34  IPC.  Maina      Singh would  accordingly be  responsible      for the  offence, if any, which could be      shown to  have  been  committed  by  him      without regard  to the  participation of      others."      In Harshad Singh vs. State of Gujarat 1977 Criminal Law Journal 352,  a three Judge Bench of this Court observed, in negativing a  submission of the appellant therein that since three out  of the  four accused  had secured  acquittal  the invocation of Section 34 IPC was impermissible, as under:-      "The flaw in this submission is obvious.      The Courts  have given  the  benefit  of      doubt of identity but have not held that      there was  only  one  assailant  in  the      criminal  attack.   The  proposition  is      plain that  even if  some out of several      accused   are    acquitted    but    the      participation presence of a plurality of      assailants  is   proved,  the   conjoint      culpability    for    the    crime    is      inescapable. Not  that the story of more      than  one  person  having  attacked  the      victim is  false, but  that the identity      of the  absolved accused  is not  firmly      fixed    as    criminal    participants.      Therefore, it follows that such of them,      even if  the number  dwindled to one, as      are  shown  by  sure  evidence  to  have      knifed  the   deceased,  deserve  to  be      convicted for the principal offence read      with the constructive provision."                           (emphasis supplied)      When a  similar question again came up consideration in Piara Singh vs. State of Punjab (1980) 2 SCC 401 this Court, quoted with approval Maina Singh’s case (supra) and applying the principle  laid down  therein in  the facts  of the case presented before it observed as under:-      The position as it stands on the face of

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    the prosecution  case as  disclosed   in      the Court  is that  only five  named and      known  persons   including  Piara  Singh      participated in the murderous assault on      the deceased  of which  four  have  been      acquitted  which   would  lead   to  the      natural presumption  that the other four      accused persons were not there. In these      circumstances, therefore, the conclusion      is inescapable  that Piara  Singh  alone      cannot be  convicted under  Section  302      with  the   aid  of   Section  34.   The      appellant, Piara  Singh  would  only  be      liable for  the individual  act which he      may have  committed in  respect  of  the      assault on the deceased."      Judged in  the context  of the  principles of  law laid down in  the cases  referred  to  above  the  conclusion  is inevitable that  the appellant before us cannot be convicted under Section  302 IPC, even with the aid of Section 34 IPC, as the  prosecution laid  evidence to  prove that  only  the three arraigned persons, were responsible for the murder and the acquittal  is  not  based  on  the  ground  of  mistaken identity. The  appellant would  therefore be  liable for his individual act  only. which  unmistakably makes out, in view of the  weapon used by him and the nature of injuries caused an offence  under Section 326 IPC. Since the gun used by the appellant was an unlicensed one his conviction under Section 25 of the Arms Act has got to be upheld also.      For  the   foregoing  discussion   we  set   aside  the conviction of  the  appellant  under  Section  302  IPC  and convict him under Section 326 IPC. Considering the fact that since the  offence as  committed more  than  11  years  have elapsed, we sentence him to suffer rigorous imprisonment for seven years  for the  above conviction.  The conviction  and sentence imposed  upon him  under Section 25 of the Arms Act are maintained.  Both the  sentences will  run concurrently, The appellant,  who is  on bail  will, now  surrender to his bail bond to serve out the sentence now imposed upon him.