Singh Vs. The State of Punjab  Insc 176 (27 March 2001)
Lahoti & Doraiswamy Raju R.C. Lahoti, J.
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.
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.
to the prosecution, Gurdial Kaur, the deceased, is said to have executed a sale
deed of a piece of land in favour of late Gurdev Singh, the father of accused 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.
17.8.1985, at about 2.30
p.m., Gurdial Kaur was
sitting on a cot near her house. The two accused persons each armed with a .12
bore pistol came to the house of Gurdial Kaur. They shouted Budhiya Takri Ho Ja.
Tu Sanu Bohat Tang Kita Hai (Old lady be strong. You have already 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
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.
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.
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.
conviction under Section 302/34, IPC cannot be sustained and must be set aside.
as the offence under Section 27 of Arms Act is concerned, we do not find any
reason to doubt the recovery of pistol from his possession when he was
apprehended on 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.
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.
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.