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 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, 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
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.