2006 Supreme(SC) 679

2006(5) Supreme 926
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
Arijit Pasayat and Lokeshwar Singh, JJ.
Lachman Singh — Appellant
versus
State of Haryana — Respondent
Criminal Appeal No. 349 of 2005
With
Criminal Appeal No. 350 of 2005 and 351 of 2005
Decided on 28-7-2006
Counsel for the Parties :
For the Appellant : U.U. Lalit, Sr. Advocate, Dayan Krishnan, Gautam Narayan and Nikhil Nayyar, Advocates.
For the Respondent : Rajeev Gaur Naseem and T.V. George, Advocates.

Headnote:Indian Penal Code, 1860 — Sections 302/34 and 307/34 — Three accused-appellants who had a dispute over issue of flow of water had exchange of abuses with prosecution party when both parties were standing on roof top of their houses — Appellant A2 asked his son A1 to bring revolver and A1 brought a revolver and fired shot which hit deceased who fell down — Appellant A2 then took revolver and started firing shots which hit PW5 and another injured — Third accused-appellant was alleged to have exhorted and pelted brick bats — Conviction by trial Court and High Court upheld conviction in appeal — Appeal — Evidence of witnesses, particularly, injured witnesses was analysed by Trial Court and High Court and no discrepancy of any vital nature which affected credibility of witnesses — Minor discrepancies did not dilute the otherwise cogent evidence — Bullets recovered from spot not matching seized gun was also analysed by Court below and rightly observed that gun was got recovered by accused subsequently and he might have pointed out different gun — Evidence against third appellant was inadequate — Doctor did not find any brickbat injury on injured PW7 — His role or presence was not established by cogent evidence and his conviction was liable to be set aside — Conviction of other two accused was also liable to be altered to u/s 304 Part I IPC and each sentenced to 10 years imprisonment and fine — Their conviction u/s 307/34 IPC was liable to be upheld.

       Held : In the present appeal stands taken before the High Court were reiterated by the learned counsel for the parties. We find that the evidence of the witnesses, more particularly, injured witnesses have been carefully analysed by the Trial Court and the High Court. There is no discrepancy of any vital nature which will affect credibility of the witnesses. There is no doubt that some minor discrepancies are noticed. But that does not in any way dilute the otherwise cogent evidence of injured witnesses about the role played by two of the accused persons i.e. Lachhman Singh and Dev Singh. So far as the bullets not matching the seized gun is concerned, the trial Court and High Court have dealt with this aspect in great details. As rightly submitted by learned counsel for respondent-State, recovery of the gun was made on being pointed out by the accused. To draw a red herring he pointed out to a different gun, so that the plea as presently urged can be taken. We, however, find that the evidence is inadequate so far accused Randhir Singh is concerned. It was prosecution case that he had thrown brickbats which caused injury on Vikram Singh (PW-7). But the same is clearly ruled out by the doctors evidence to the effect that none of the injuries can be caused by brickbats. Additionally, his role of presence at the spot has not been established by any cogent and credible evidence. Therefore, conviction so far as he is concerned, cannot be sustained in the appeal filed by him i.e. Criminal Appeal No.350 of 2005 is allowed. The residuary plea relates to the applicability of Exception 4 of Section 300 IPC. For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.(Paras 8 to 10)

       Analysing the evidence in the background set out above the inevitable conclusion is that conviction of Lachman Singh has to be altered from Section 302 IPC to Section 304 Part I IPC. Custodial sentence of 10 years with fine of Rs.1,000/- with default condition of 3 months RI would meet the ends of justice. He is also to be convicted under Section 307 read with Section 34 IPC. Accused Dev Singh has to be convicted under Section 304 Part I read with Section 34 IPC. Custodial sentence would be 10 years RI with fine of Rs.2,000/- with default stipulation of three months.(Para 15)

       (ii) Indian Penal Code, 1860 — Section 307 — Attempt to murder — Conviction could be justified if there was intent coupled with some over-act in execution thereof — It is not essential that bodily injury capable of causing death should have been inflicted.

       Held : It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overact in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Sections makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.(Para 12