Partly allowed

Davinder Singh Sodhi v. State of Haryana

Punjab & Haryana HC11 Sept 2014CRA-S/1191/2002

Case brief

AI extract

What is this about?

The High Court allowed a criminal appeal by a visiting convict, acquitting him of Section 307 (attempt to murder) but convicting him under Section 326 (voluntarily causing grievous hurt by dangerous weapons) and 393 (robbery), modifying his sentence.

What did the court decide?

Accused acquitted of Section 307 IPC; convicted under Section 326 IPC and Section 393 IPC. Sentence modified to three years for Section 326 IPC and ₹25,000 fine payable to injured.

Davinder Singh Sodhi Vs State of Haryana — Cheque Dishonour | Punjab & Haryana HC (2014)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Criminal Appeal No. S-1191-SB of 2002 Date of decision: 11.09.2014.

Davinder Singh Sodhi

..Appellant

Versus

State of Haryana

..Respondent

CORAM: HON'BLE MRS. JUSTICE DAYA CHAUDHARY

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Present: Mr. A.P.S. Mann, Advocate for the appellant.

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Mr. Anshumaan Dalal, DAG, Haryana for the respondent – State.

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Daya Chaudhary, J.

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The present appeal has been filed to challenge the judgment of conviction and order of sentence dated 18/20.07.2002 passed by learned Additional Sessions Judge, Karnal, whereby, the accused-appellant has been convicted under Sections 393 and 307 of Indian Penal Code ( for short 'IPC') and sentenced to undergo RI for a period of three years and to pay fine of 500/- with default clause for offence under Section 393 IPC and to undergo RI for a period of six years and to pay fine of 500/- with default clause for offence under Section 307 IPC. Both the sentences were ordered to run concurrently.

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Briefly, the facts of the prosecution story are that on

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Criminal Appeal No. S-1191-SB of 2002

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15.08.1999, Constable Narsingh and Head Constable Rajiv Kumar were deputed for safeguarding the petrol pumps from 10 pm to 6 am. Both the Police officials were not in Police uniform. Constable Narsingh was armed with SLR whereas HC Rajiv Kumar was having carbine. At about 2.05 am on 16.08.1999, both of them went to petrol pump of one Inder Pal (PW5). One Ramesh Kumar was also seated in the cabin at the petrol pump. In the meantime, the present appellant and another accused, namely, Nikka accompanied by two others arrived at the petrol pump in a maruti car without any number plate. They asked Inder Pal to fill petrol in the car for an amount of `300/-. One of the accused handed over a five hundred rupee note to Inder Pal and taking the note, he went inside the cabin to get some change and was followed by both the accused, who were armed with pistols. Said Inder Pal was threatened to surrender what was with him. HC Rajiv Kumar asked them about their identity. Meanwhile, accusedappellant-Davinder fired a shot from his pistol at HC Rajiv Kumar with an intention to kill. Due to which, he sustained injuries on his right shoulder and fell down on Constable Narsingh. Both the accused fled from the place of occurrence in their car towards Panipat. Said incident was brought to the notice of Police Post, Pucca Pul. The injured was shifted to Civil Hospital, Karnal. Statement of Constable Narsingh was recorded by SI Inderjit Singh. On the basis of that statement, a formal FIR was registered.

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Criminal Appeal No. S-1191-SB of 2002

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Injured-HC Rajiv Kumar was medico-legally examined by Dr. Sanjeev Grover (PW1) and thereafter, he was referred to PGI, Chandigarh. Three pellets were recovered from the site, which were taken into possession vide memo Ex.PG. Site plan of the place of occurrence was prepared and accused were arrested. Accused Nikka made a disclosure statement Ex.PL. Both the accused were produced before Illaqa Magistrate but they refused to participate in the test identification parade. The alleged pellets and blood recovered from the site were sent to the Forensic Science Laboratory, Madhuban (Karnal), Haryana for analysis and report Ex.DB was received. Thereafter, on completion of necessary investigation, challan was presented before the trial Court.

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The prosecution examined as many as 13 witnesses in order to prove its case.

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The statements of accused under Section 313 Cr.P.C. were recorded wherein they pleaded innocence and stated that they have falsely been implicated.

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The accused examined only one witness in defence. Both the accused were convicted and sentenced by the trial Court for the offence as mentioned above.

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The present appeal has been filed only by one accused, namely, Davinder Singh Sodhi to challenge the judgment of conviction.

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Criminal Appeal No. S-1191-SB of 2002

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Learned counsel for the appellant has raised various arguments that the FIR was registered against some unknown persons and the accused-appellant has falsely been implicated in the case, which is clear from the fact that he was got involved in total 12 cases but has been acquitted of charge in ten cases by the trial Court. Learned counsel for the appellant has also supplied judgments of 10 cases of acquittal. It is also the argument of learned counsel for the appellant that all incidents were relating to a short period but in different districts, which shows the false implication of the appellant. Learned counsel for the appellant also submits that no identification parade was conducted to identify the accused but the same has been made on the basis of identification parade in different case at District Yamuna Nagar. Many missing links as well as serious contradictions and discrepancies are there in the statements of witnesses. Nothing has been mentioned as to whether the accused was holding pistol or the revolver in his hand. Learned counsel for the appellant also submits that neither any pistol nor any revolver was recovered nor it was deposited along with the case property. PW10-SI Mangat Ram has specifically stated in his statement that no recovery memo was there as to the fact of depositing of the pistol/revolver. In crossexamination also, he has denied the date of deposit of the weapon. PW13-Inspector Balbir Singh has not supported the case of the prosecution and he was given up by the prosecution whereas he was

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Criminal Appeal No. S-1191-SB of 2002

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cited as the most important witness to support the case of the prosecution. Learned counsel also submits that it has been proved on record that both the Police officials were in civil uniform and there cannot be any intention of the accused-appellant to commit murder. Keeping in view the consideration, the injuries caused to the injured, no case is made out under Section 307 IPC. Learned counsel also submits that the appellant has been implicated only on the basis of disclosure statement and at the most, it can be a case of causing injury but does not fall under the provisions of Section 307 IPC as no opinion whatsoever has been given by the doctor, who medico-legally examined the injured. It is also the argument of learned counsel for the appellant that the pellets were recovered from the place of occurrence but as per FSL report Ex.DB, a metallic piece was recovered from the place of occurrence, which could not be said pellet. In the end, learned counsel for the appellant submits that the appellant has faced the agony of trial since registration of FIR i.e., 16.08.1999 and has remained in custody for approximately 3 years and prays for taking a lenient view keeping in view the custody period. Learned counsel for the appellant has also relied upon the judgment of Hon'ble the Supreme Court in Mahabir vs. The State of Delhi, AIR 2008 SC 2343 as well as judgment of Madras High Court in Shabir @ Surendra Singh Chouhan and others vs. State of M.P., MANU/MP/0858/2011 and judgments of this Court in Sharda Nand

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Criminal Appeal No. S-1191-SB of 2002

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vs. State of Punjab, 2006(4) RCR (Criminal) 906, Harinder Singh @ Babba and another vs. State of Punjab, 2011(2) RCR (Criminal) 245, Bawa Singh and others vs. State of Punjab, 2013 (3) RCR (Criminal) 1027, Gurnam and others vs. State of Haryana, 2012(1) RCR (Criminal) 297 in support of his contentions.

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Learned State counsel submits that the judgment passed by the trial Court is well reasoned and only minor contradictions and discrepancies are there, which are not fatal to the case of the prosecution. The accused is habitual offender, which is clear from number of FIRs registered against him. It cannot be said that in case, the appellant has been acquitted in other cases then, the story of the prosecution is false. In the present case, PW13 was not examined as he was declared to have been won over by the accused.

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Heard arguments of learned counsel for the appellant as well as learned State counsel and have also perused the original file of the trial Court and gone through the statements of the witnesses.

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As per case of the prosecution, Constable Narsingh (PW2) and HC Rajiv Kumar (PW5) were deputed for safeguarding the petrol pump from 10 pm to 6 am and both the Police officials were in civil uniform. Constable Narsingh was armed with SLR and HC Rajiv Kumar was armed with Carbine with him. Both the accused accompanied by two other persons arrived at the place of occurrence in a maruti car without having any number plate. Inder Pal, who was

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Criminal Appeal No. S-1191-SB of 2002

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employee of petrol pump was asked to fill petrol in the car for an amount of 300/-. One of the accused gave five hundred note and when 200/- change was to be returned to the accused, Inder Pal went inside the cabin followed by accused but was threatened to surrender whatever was with him. Both the Police officials were there and as HC Rajiv Kumar tried to load his weapon, the accusedappellant Davinder Singh Sodhi saw and fired a shot from his pistol at Rajiv Kumar with an intention to kill. Due to which, Rajiv Kumar sustained injuries on his right shoulder and thereafter, both the accused fled from the place of occurrence. The accused-appellant was charge-sheeted under Section 307 IPC. As per medico-legal examination conducted by Dr. Sanjeev Grover (PW1), total 8 injuries were found on the person of injured, which are as under: -

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“1. A laceration 4 cmx3cm elliptical with fresh

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bleeding over 1 cm above the middle of right clavicle near the base of neck was found. Depth could not be ascertained due to excessive bleeding and blacknening also could not be ascertained due to excessive bleeding.

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2 A laceration 3cmx1cm irregular about 3 cm behind injury no.1 by the right side of neck obliquely placed was present.

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3. A laceration 0.5 cm x 0.5 cm about 1 cm above the middle of right eye brow.

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4. A laceration of size 0.5cmx0.5cm about 1 cm above the middle of left eye brow.

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5. A laceration 0.5cmx0.5 cm on the middle of bridge of nose 0.5 cm to the right of middle.

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6. A laceration 0.5cmx0.5cm about 4 cm below middle of right clavicle on the front of chest.

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7. A laceration 0.5 cmx0.5cm about 3 cm below and medial to right nipple on the front of chest.

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8. A laceration 0.5cmx0.5cm over the front of chest left side 7cm below the clavicle and 5 cm from the midline.”

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As per opinion of the doctor, all injuries were found to be caused within six hours from the time of examination. The injured was referred to PGI, Chandigarh and he was operated upon on the same day. The injured had multiple gun shot injuries and out of eight injuries, three injuries penetrated his neck and two injuries penetrated his chest. Said injuries were found to be caused by present appellant as per statement of PW2 and PW5.

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Now it is to be seen that on the basis of those injuries and as per opinion of the doctor and statement of eyewitnesses, whether it falls under Section 307 IPC or not.

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For determining, whether it was a case under Section 307 IPC, it is to be considered as to whether there was an intention to kill or to make out an offence of attempt to murder punishable under Section 307 IPC. Section 307 IPC is reproduced as under: -

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“ Attempt to murder. - Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned .

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Attempts by life-convicts.- When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death .”

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On perusal of the above section, it can be said that in order to determine whether an offence under Section 307 IPC is made out or not, the foremost ingredient is intention or knowledge to kill. Furthermore, Section 307 IPC consists of two ingredients. Firstly, the doing of an act with such intention or knowledge and under such circumstances that the act done by the offender would cause death, then he would be guilty of murder. This would, if fulfilled, constitute an offence of attempt to commit murder and the same is punishable for a term, which may extend to ten years and also fine. Secondly, it relates

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to causing of hurt by such act i.e., having intention or knowledge and under such circumstances that by such an act death would be caused and in such circumstances, the offender would be guilty of murder. It also constitutes an offence of attempt to murder and is punishable with imprisonment upto imprisonment for life or to such an extent as mentioned earlier. The substance of the offence is the intention or knowledge that the act done is such that death would be caused and offender would be guilty of murder but actually the death is not caused.

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As per aforesaid provision, for making out the offence under Section 307 IPC, two ingredients must be present i.e., (i) an intention or knowledge to commit murder and; (ii) the doing of an act towards it. This section clearly provides that an act, which is done with the intention for causing death but in case it fails to bring about the intended consequence on account of any reason not only the nature of the act to be done but also the intention or knowledge of the accused along with the mitigating circumstances under which the act is done is to be seen.

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On perusal of entire oral as well as medical and documentary evidence brought on record by the prosecution, it appears that the accused was not having any intention to cause death as he went inside the cabin for the purpose of committing robbery and after seeing the Police officials, who were fully armed with weapons,

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panicking, fired shot.

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From the evidence of the witnesses, it appears that the intention was not to kill as only one shot was fired. Had the intention of the accused was there to cause death of the injured, he would have repeated and would not have simply stopped by inflicting injuries by one shot. He would have inflicted more injuries or would have fired more rounds.

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It is to be seen from other aspects of the matter and on the basis of the injuries caused to the injured whether the injuries caused were dangerous to life of the injured. In order to invoke the penal provisions of Section 307 IPC, the prosecution ought to have obtained the clear opinion from surgeon, who performed the surgery. As the medical opinion in such cases plays an important role in making out an offence and it should be definite and specific as, if the indicated injuries were not timely treated, or timely medical aid was not given to the injured, the injuries were sufficient in the ordinary course of nature to cause death and hence dangerous to life.

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In the present case, as per the medical opinion, the injuries caused have been shown to be dangerous to life.

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An identical question for making out distinction between the words “dangerous to life” and “endangering life” came to be determined by a Division Bench of this Court in Atma Singh vs. The State of Punjab, 1982 (2) CLR 496 wherein it was held as under: -

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“ “ Held, that the expression 'dangerous' is an adjective and the expression 'endanger' is verb. An injury which can put life in immediate danger of death would be an injury which can be termed as 'dangerous to life' and, therefore, when a doctor describes an injury as 'dangerous to life', he means an injury which endangers life in term of clause 8 of Section 320, Indian Penal Code, for, it describes the injury 'dangerous to life' only for the purpose of the said clause. He instead of using the expression that this was an injury which 'endangered life' described it as 'dangerous to life', meaning both the time the same thing ”

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Same view was held in case Pritam Singh and another

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vs. State of Punjab 2010(3) RCR (Criminal) 395 and Tej Ram vs. The State of Punjab, 1978(6) CLR 76 that the injury, which was described by the doctor as 'dangerous to life' would not be sufficient and provisions of Section 307 IPC are not attracted.

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Keeping in view the nature of the injuries, it falls within the domain of clause eight of Section 320 IPC and would be punishable under Section 326 IPC.

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Learned counsel for the appellant has also submitted that in case, it is found that it is an offence under Section 326 IPC and

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sentence is reduced to the period already undergone, he would not like to contest the conviction as appellant has faced the agony of trial since registration of FIR i.e., 16.08.1999 and has undergone actual sentence of approximately three years.

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Accordingly, in view of the discussion as above, no offence is made out under Section 307 IPC but keeping in view the injuries on the person of the injured, it is a case under Section 326 IPC. As the appellant has already undergone actual custody for a period of approximately three years and has faced the agony of trial since 16.08.1999; and as per judgment of the trial Court, the accused has been convicted and sentence for offence under Section 393 IPC to undergo RI for a period of three years and fine of 500/-, the appeal is partly allowed and the accused appellant is acquitted of the charge under Section 307 IPC but convicted under Section 326 IPC as well as under Section 393 IPC. Sentence under Section 393 IPC has already been awarded as three years and for offence under Section 326 IPC, he is further sentenced for a period of three years. The appellant is also directed to pay fine of 25,000/-, which is to be paid to the injured. The said amount be deposited with the trial Court within a period of one month from the date of receipt of certified copy of the order, failing which, the appellant shall undergo imprisonment for three months.

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Accordingly, with the modification of sentence and by

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upholding the conviction under Section 393 IPC, the appeal is partly allowed.

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A copy of this judgment be sent to the trial Court for further

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