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CASE NO.: Appeal (crl.) 673  of  1992

PETITIONER: MITHU SINGH

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT:       27/03/2001

BENCH: R.C. Lahoti & Doraiswamy Raju

JUDGMENT:

R.C. Lahoti, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   Mithu  Singh,  the  accused appellant, and  one  Bharpur Singh  were tried on charge under Section 302/34 I.P.C.  for the  murder  of Gurdial Kaur on 17.8.1985 at  Village  Bhame Kalan,  District  Bhatinda.  In view of  unlicensed  pistols having  been recovered from each one of them they were  also charged  under  Section 27 of the Arms Act, 1959.  On  trial the  Session Judge, Bhatinda found both the accused  persons guilty  of the offences charged.  Each of them was sentenced to life imprisonment with a fine of Rs.1,000/- under Section 302/34,  I.P.C.   They  were  also sentenced  to  two  years rigorous imprisonment each under Section 27 of the Arms Act. Both  the accused persons preferred appeals before the  High Court  of  Punjab which have been dismissed.  Special  leave petitions  were filed by both of them before this court.  On 19.7.1991  the SLP filed by Bharpur Singh was directed to be dismissed  by  this court.  However, the petition  filed  by Mithu  Singh,  the appellant has been entertained and  leave granted.

   According   to  the  prosecution,   Gurdial  Kaur,   the deceased, is said to have executed a sale deed of a piece of@@                   JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ land  in favour of late Gurdev Singh, the father of  accused@@ JJJJJJJJJJJJJJJJJJJJJJJ Bharpur  Singh.   Civil litigation for cancellation  of  the sale  deed  was  pending between Gurdial  Kaur  and  accused Bharpur  Singh and his brothers.  The enemity so erupted had also  resulted  in  some  criminal  litigation  between  the parties.   Thus,  admittedly, there were strained  relations between Bharpur Singh and the deceased, Gurdial Kaur.

   On  17.8.1985,  at  about 2.30 p.m.,  Gurdial  Kaur  was sitting  on  a cot near her house.  The two accused  persons@@                JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ each  armed  with  a .12 bore pistol came to  the  house  of@@ JJJJJJJJJJJJJJJJJJJJJJJJ Gurdial  Kaur.  They shouted Budhiya Takri Ho Ja.  Tu  Sanu Bohat  Tang Kita Hai (Old lady be strong.  You have already

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harassed  us  enough).  Bharpur Singh fired a shot with  his pistol  hitting  the deceased on her left flank.   She  fell down  on  the  cot and died  immediately.   Mukhtiar  Singh, PW.11,  who has a house adjoining the house of Gurdial  Kaur and one Jagtar Singh saw the incident.  They raised an alarm whereupon the two accused persons took to their heels.  They were  chased by some villagers.  On way, they were joined by some  police party also.  Finding the police and the village people  chasing  them,  the two accused persons  turned  and started  running  in  directions  opposite  to  each  other. However, the party led by Sub Inspector Santokh Singh, PW.12 caught  hold  of  Bharpur  Singh.   The  party  led  by  ASI Gurcharan  Singh  apprehended Mithu Singh, appellant.   From his  possession,  a  pistol,   Exhibit  P-6  was  recovered. Mukhtiar   Singh,  PW.11,  lodged  an  F.I.R.    The   usual investigation   followed  and  the   accused  persons   were challaned.   In  this  appeal,  we are  concerned  with  the legality  or otherwise of the conviction of Mithu Singh, the accused  appellant  before us, under Section 302/34,  I.P.C. and Section 27 of the Arms Act.

   The  prosecution does not attribute any overt act to the accused   appellant  Mithu  Singh.    The  totality  of  the circumstances found against him is that he came to the house with Bharpur Singh, the co-accused, he was also armed with a pistol  and  after Bharpur Singh fired a single  shot  which proved  to  be  fatal,  both   took  to  their  heels.   The allegation  that Bharpur Singh and Mithu Singh belong to one party  faction, is not based on any concrete fact  wherefrom such  an inference may be drawn by the court and, therefore, does  not  go  beyond  being  merely a  ipse  dixit  of  the witnesses.   Therefore,  the  question  arises,  whether  an inference,  as  to  Mithu  Singh   having  shared  a  common intention  to cause the death of deceased Gurdial Kaur  with the co-accused Bharpur Singh, can be drawn?

   To  substantiate a charge under Section 302 with the aid of  Section  34,  it  must be shown that  the  criminal  act complained against was done by one of the accused persons in furtherance  of  the common intention of the  both.   Common intention  has  to  be distinguished from  same  or  similar intention.   It  is  true  that  it  is  difficult,  if  not impossible,  to collect and produce direct evidence in proof of  the intention of the accused and mostly an inference  as to intention shall have to be drawn from the acts or conduct of   the  accused  or   other  relevant  circumstances,   as available.  An inference as to common intention shall not be readily  drawn;   the culpable liability can arise  only  if such  inference  can  be  drawn with  a  certain  degree  of assurance.   At  the worst Mithu Singh,  accused  appellant, knew  that  his  co-accused Bharpur Singh was armed  with  a pistol.   The knowledge of previous enemity existing between Bharpur  Singh  and the deceased can also be  attributed  to Mithu  Singh.   But there is nothing available on record  to draw an inference that the co-accused Bharpur Singh had gone to  the house of the deceased with the intention of  causing her  death and such intention was known to Mithu Singh, much less  shared by him.  Simply because Mithu Singh was himself armed  with  a pistol that would not necessarily lead to  an inference that he had also reached the house of the deceased or  had  accompanied the co-accused Bharpur Singh  with  the intention  of  causing  the death of Gurdial Kaur.   In  our opinion,  an inference as to Mithu Singh accused  appellant, having  shared  with  Bharpur Singh a  common  intention  of causing the murder of deceased Gurdial Kaur cannot be drawn.

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His conviction under Section 302/34, IPC cannot be sustained and must be set aside.

   So  far  as the offence under Section 27 of Arms Act  is concerned,  we do not find any reason to doubt the  recovery@@             JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ of  pistol  from his possession when he was  apprehended  on@@ JJJJJJJJJJJJJJJJJJJJ being  chased  by  the  villagers.   It  is  true  that  ASI Gurcharan  Singh has not been examined as he had died before the  commencement of trial.  However, there is no reason  to disbelieve  the  statement of panch witness Babusingh  PW10, who is also a village panch, deposing to the recovery of the pistol  from the possession of Mithu Singh.  The pistol  was fired to scare away the people chasing him to apprehend him. As  the  pistol  is not shown to be licensed, and  was  also used, his conviction under Section 27 of the Arms Act cannot be found fault with.

   The  appeal  is  partly allowed.   Conviction  of  Mithu Singh,  the  accused appellant, under Section 302/34 IPC  is set  aside.   The amount of fine of Rs.1,000/-, if  realised from him, shall be refunded to him.  In so far as conviction under  Section  27 of the Arms Act and the sentence  of  two years  R.I.   is  concerned, the same are  maintained.   The appellant  has  already served out that sentence.  He is  on bail.   He need not surrender to the bail bonds which  shall stand discharged.