JUDGMENT
A.S. Nehra, J.
1. Criminal Appeal No. 347-DBA of 1988 (State of Punjab v. Jagtar Singh and Ors. and Criminal Appeal No. 105-SB of 1988 Jagtar Singh v. Punjab State), will be disposed of by this common judgment as these arise out of the same judgment of the Additional Sessions Judge, Jalandhar, dated February 18, 1988, by which Jagtar Singh, respondent in Cr. A. No. 347-DBA of 1988 and appellant in Crl. A. No. 105-SB of 1988 (hereinafter to be referred to as the ‘accused’) was acquitted of the charge under Section 307, Indian Penal Code, and instead he was convicted under Section 326, Indian Penal Code, and was sentenced to undergo four years’ rigorous imprisonment and to pay a fine of Rs. 1000/- or in default of payment of fine, to further undergo six months’ rigorous imprisonment, while Jasbir Singh and Balbir Singh, respondents in Cr. A. No. 347-DBA of 1988 and appellants in Cr, A. No. 105-SB of 1988 (hereinafter to be referred to as the ‘accused’) were acquitted of the charge under Section 307 read with Section 34, Indian Penal Code, and instead they were convicted under Section 326 read with Section 34, Indian Penal Code, and each of them was sentenced to undergo two and a half years’ rigorous imprisonment and to pay a fine of Rs. 1000/- pr in default of payment of fine, to further undergo five months’ rigorous imprisonment. Out of the fine, if realised, Rs. 2000/- were Ordered to be paid to Maninder Singh injured. Criminal Appeal No. 347-DBA of 1988 has been filed by the State of Punjab against the acquittal or Jagtar Singh accused and Jasbir Singh and Balbir Singh, his co-accused of the charge under Sections 307 and 307/34, Indian Penal Code, while Crl. A. No. 105-SB of 1988 has been filed by Jagtar Singh, accused, and Jasbir Singh and Balbir Singh, his co-accused, against their conviction and sentence under Sections 326 and 326/34, Indian Penal Code, respectively.
2. The prosecution story, briefly stated, is as follows:–
On June 11, 1986, at about 12.30 P.M., Harbhajan Singh along with his brothers Maninder Singh and Balwant Singh were present at their tube-well in their fields, when Balbir Singh accused came there and complained to Maninder Singh that he should not have employed their servant Gian Chand on higher wages as he was earlier working under him. He threatened him and exhorted his brother Jagtar Singh accused to teach Maninder Singh a lesson. At that time, Jagtar Singh accused was armed with a double barrelled gun, while Balbir Singh accused was armed with a dang Balbir Singh accused raised, lalkara exhorting Jagtar Singh accused as to what for he was waiting and asked him to kill Maninder Singh. Upon this, Jagtar Singh accused fired at Maninder Singh hitting him on his eyes, face, chest and other parts of the body. On an alarm raised by Harbhajan Singh, the accused made good their escape carrying with them their respective weapons. On the same day, Maninder Singh injured was taken to Civil Hospital, Jalandhar, where he was got admitted. At about 5.00/5.15 P.M. on the same day, statement, Ex. PQ. of Harbhajan Singh was recorded by the police. It was read over to him, who, after admitting the same to be correct, signed it. ASI Kesar Singh, who had recorded the statement, Ex. PQ, made his endorsement, Ex. PQ/1, thereon, and forwarded it to the police station for registration of the case and on its basis formal First Information Report, Ex. PQ/2, was registered by ASI Darshan Kumar.
3. Initially the police did not submit report under Section 173, Criminal Procedure Code, against Balbir Singh accused. Charge against Jagtar Singh and Jasbir Singh accused was framed. However, after recording the statement of Harbhajan Singh PW, Balbir Singh accused was summoned by the trial Court vide order dated January 9, 1987. Jagtar Singh accused was charged under Section 307, Indian Penal Code, while his co-accused Jasbir Singh and Balbir Singh were charged under Section 307 read with Section 34, Indian Penal Code.
4. The prosecution in order to bring home guilt to the accused examined Dr. Nambudri Pad, Professor of Neuro Surgery, C.M.C., Ludhiana (P.W. 1), Dr. P.S, Aheja, Medical Officer, Civil Hospital, Adampur (P.W. 2), Dr. B.S. Bhaura (P.W. 3), Dr. A.P. Pathak, Registrar, Department of Neuro Surgery, P.G.I,, Chandigarh (P.W. 4) Dr. J.L. Goel, Senior Resident, Dr. Rajendra Prasad Centre for Ophthalmic Science, All-India Institute of Medical Sciences, New Delhi (P.W. 5), Harbhajan singh (P.W. 6), Maninder Singh injured (P.W. 7), Dalip Singh Draftsman (P.W. 8), Rajinder Singh, Arms Clerk, Deputy Commissioner’s Office, Jalandhar (P.W. 9), A.S.I. Rattan Singh (P.W. 10) and A.S.I. Kesar Singh (P.W. 11), H.C. Dalbir Singh, H.C. Bawa Singh, Constable Ranjit Singh, A.S.I. Darshan Kumar, Dy. S.P. Swaran Singh, S.I. Dilbagh Singh and Dr. D.S. Toor were given up by the prosecution as unnecessary. Affidavits of formal witnesses, namely. MHC Som Nath, Constables Jag Mohan, Nirmal Singh, Exhibits PV, PW and PX, respectively, were tendered in evidence. Reports, Exhibits PDD, PEE and PFF of the Chemical Examiner, Serologist and Forensic Science Laboratory respectively were also tendered in evidence.
5. When examined under Section 313, Criminal Procedure Code, the accused denied the allegations levelled by the prosecution against them and pleaded their false implication. Jagtar Singh accused in his defence took up the following pleas:–
I am innocent. On 11-6-86, it was Shaheedi Gurpurb of Shri Guru Arjan Dev. I had gone to the Gurdwara on that day. Mahinder Singh and Balwant Singh came there. Maninder Singh sat close to me. I asked him to sit at some distance due to hot whereas there was sufficient vacant place nearby. On this, he insisted that he would sit there and on this there was some altercation between me and Maninder Singh. Maninder Singh then removed my gold chain from my neck. Sangat then asked Maninder Singh to return my chain to me and also asked him to apologise as he had misbehaved with Jagtar Singh and had created disturbances in the Sangat. Maninder singh then returned chain to me. Sangat asked him to leave the Gurdwara at once. At that time, Sohan Singh s/o Achhar Singh, Sucha Singh s/o Bikram Singh, Darshan Singh s/o Malkit Singh were present in the Gurdwara. When I left the Gurdwara, Maninder Singh and Balwant Singh followed me and threatened that they would kill me as I was responsible for insulting Maninder Singh in the Sangat. I then took shelter in the Haveli of Gurmit Singh s/o Arjan Singh after passing by the side of my residence. Hazara Singh s/o Achhar Singh and Rattan Singh s/o Bishan Singh also saw Maninder Singh and Balwant Singh chasing me. Later on, when 1 returned from the Haveli, I came to know that Maninder Singh had fired at my brother Jasbir Singh, who in his self-defence fired in order to scare away Maninder Singh but some pellets accidentally hit him. Kabal Singh, my father-in-law, had moved applications to the higher authorities regarding my innocence.
1 have passed B.Sc. (Medical), M.A. (English). I got scholarship four times, i.e., 8th Class, 19th Standard, B.Sc. and in M.A. (English). I secured 11th position in M.A. (English) in Guru Nanak Dev University and 2nd position in Doaba College, Jalandhar. I stood first in M.A. Part I (English) Doaba College and stood second in B.Sc. in the college in First Division. I also participated in sports wrestling and got many prizes. I also took part in curricular in the School and College. My wife is residing in Canada and I would like to join her but my cousin brother Niranjan Singh and his brother falsely involved me in this case in order to spoil my career and life. I have brought the original certificates with me today. I will produce the attested copies of the certificates on the next day.
Balbir Singh accused took up the defence that on June 11, 1986, he along with his children and wife had gone to village Nauli early in the morning to attend Shahidi Gurpurb in the Dera of Sant Chanan Singh, where he remained for the whole day. He further stated that village Hauli is about 20 Kms. from his village and that he was not challaned by the police. Jasbir Singh accused stated that on June 11, 1986, he was present in the house at noon time when Maninder Singh armed with licensed gun came to his house and shouted that Jagtar Singh should come out; that when he told Maninder Singh that Jagtar Singh was hot present in the house, Maninder Singh raised lalkara that he would kill all the members of their family as he had been insulted in the gurdwara because of Jagtar Singh and saying so he fired from his licensed gun to kill him. He further staled that in exercise of right of private defence he also fired from his licensed gun in order to scare Maninder Singh but some pellets accidentally hit him; that Jagtar Singh and Baibir Singh were not present in the house and at the time of occurrence Rattan Singh s/o Bishan Singh and Piara Singh s/o Achhar Singh were present and they saw the whole occurrence and that he produced his licenced gun and its licence before the police and the police kept him in illegal custody for a number of days and his formal arrest was shown later on.
6. The accused in their defence relied upon the testimony of DW1 Piara Singh s/o Achhar Singh, DW2 Darshan Singh s/o Malook Singh, DW3 Gurrnit Singh s/o Arjan Singh and DW4 Atma Singh, Dy. S.P. (Retd.).
7. Maninder Singh injured (P.W. 7) stated on oath that on June 11, 1986, at about 12.30 P.M. he along with his brother Harbhajan Singh PW and Balwant Singh was present in their residence in the fields; that his first cousin Balbir Singh accused came there and called him complaining that he had not done right thing by employing Gian Chand who Was earlier working under them as their servant, that Balbir Singh accused then shouted for his brother Jagtar Singh accused, who came there armed with double barrelled gun; that Balbir Singh accused exhorted his co-accused Jagtar Singh that he should kill them and what for he was waiting, whereupon Jagtar Singh accused fired at Maninder Singh from his double barrelled gun hitting him on his face, eyes, chest and neck and on receipt of the injuries, he fell on the ground. He further stated that on the alarm raised by him and his brother, all the accused ran away from the spot; that thereafter he was taken to Civil Hospital, Jalandhar, for his treatment and from there he was referred to All India Institute of Medical Sciences, New Delhi, where he remained admitted for about one week; that he was also kept for 2-3 days in a private clinic in Delhi and thereafter he was brought back to his village and that his statement was recorded on June 25, 1986. He further stated that Balbir Singh accused was armed with a dang at the time of occurrence. He stated that he had completely lost his eye-sight and prior to the occurrence he had very good eyesight.
8. Harbhajan Singh (P.W. 6), brother of Maninder Singh injured PW, corroborated the version of Maninder Singh as narrated above. On the basis of his statement, Ex. PQ. recorded by AS1 Kesar Singh (P.W. 11), formal FIR, Ex. PQ/ 2, was recorded at Police Station, Kartarpur.
9. Dr. Nambudri Pad (P.W. 1) stated that on June 26, 1986, he had received letter, Ex. PA, from Dr. Mrs. Mangat, Jalandhar, by which she had referred the patient for examination and possible treatment; that after examining Maninder Singh, he made report, Ex. PA/1, to the effect that his vision was irrecoverable because the nerves had been injured permanently, that the patient had become blind permanently and his vision could not be restored to both the eyes. In cross-examination, this witness stated that in Endst., Ex. PA/1, he had not mentioned that he had examined the patient; that Maninder Singh was not admitted in the Christian Medical College, Ludhiana and he had not examined the previous history of the patient.
10. Dr. P.S. Aneja, Medical Officer, Civil Hospital, Adampur (P.W. 2) stated that he examined Maninder Singh injured on June 11, 1986, and found following injuries on his person:–
(1) Multiple lacerated punctured wounds each about 1/2 cm in diameter present on chest, neck and face; blackening was present around the wound and margins were inverted in all the wounds. Fresh bleeding was present. Wounds on the chest were 8 in number. Wounds on the neck anterior and lateral surface were 3 in number. Wound on face 1 in number present on medial side of right eye. X-rays of chest, neck and face were advised and surgical specialist and eye specialist’s opinions were sought.
(2) Both eyes were swollen and black. Advised eye specialist’s opinion.
Ex. PB is the copy of the medico-legal report. Dr. Aneja stated that he sought the opinion from the eye specialist vide endst. Ex. PC/1 on the application Ex. PC moved by the police; that on the police application, Ex. PD, he declared the injuries on the person of Maninder Singh injured as dangerous to life vide endst. Ex. PD/1; that the kind of weapon used was firearm; that the patient was conscious, his pulse was 98 per minute and B.P. was 110/78. In cross-examination he stated that he treated the patient only on the first date, i.e. June 11, 1986; that on October 1, 1986, he had declared injuries on the person of Maninder Singh as dangerous to life without examining him on that day. He further stated that since the police made enquiries from him, he after consulting the record had declared the injuries as dangerous to life on October 1, 1986, and not prior to that; that the patient was conscious at the time of admission and according to Bed Head ticket his condition was satisfactory and remained stable up to June 12, 1986 and after that date there was no entry in the Bed Head ticket. This witness further stated that as per Bed Head ticket at no stage the patient was in imminent danger of death. He further made it clear by saying that since pellets were lodged in the body of the patient and his eye sight was lost, therefore, he declared the injuries as dangerous to life. He admitted that he had not examined any surgeon’ opinion and in fact he had examined the police record which was produced before him.
11. P.W. 3 Dr. B.S. Bhaura, Medical Officer, Civil Hospital, Jalandhar, stated that he had conducted the X-ray examination of chest, skull, face including both orbits of Maninder Singh injured, who had been referred to him by Dr. P.S. Aneja vide medico-legal report, Ex. PSA 172/86 dated June 11, 1986; that he detected multiple radio opaque shadows in the area of head, neck and chest. His X-ray report is Ex. PE and Ex. PE/1 to Ex. PE/5 are the skiagrams showing the location of pellets. He further stated that he being the eye-specialist examined Maninder Singh injured on June 12, 1986 and gave his report, Ex. PF. On examination of the right eye, he found that there was acchymeses in upper lid and oedema of both the lids; pupils were dilated and fixed; tension of the bail was high, non reacting to light; that there was faint fundal reflects but details of fundals could not be seen; that there was round wound about 1 mm in diameter in the upper lid, just above the medial canthus. The doctor further gave the details regarding the treatment given by him by way of stitching the wound, dressing etc. In the opinion of this doctor, Maninder Singh injured had lost the eye sight of both the eyes and there were no chances of revival of his vision as far as he could see from the record. His report is incorporated in Bed Head ticket, Ex. PG. On the police application, Ex. PH. he gave his opinion vide endst. No. PH/1, that radio opaque shadow was seen in the right orbit and one radio opaque shadow was seen in the left maxillary bone and similarly four radio opaque shadows were seen embedded in the area of right orbit, temporal region, parietal region and neck. Dr. Bhaura further stated that he referred the injured to the P.G.I./All-India Institute of Medical Sciences, Delhi for further treatment and investigation.
12. P.W.4–Dr. A.P. Pathak, M.S., Registrar, Department of Neuro-surgery, P.G.I., Chandigarh, stated that on July 2, 1986, patient Maninder Singh was brought to the emergency OPD with the history of bullet injury on June 11, 1986; that there was no history of unconsciousness or vomiting; that the patient could not see from both eyes since the time of injury treated at Civil Hospital, Jalandhar and then at All India Institute of Medical Sciences, Delhi and that he was referred to Opthalmology OPD and Neuro Surgery OPD for detailed examination, investigation and further advice about management. Ex. PJ is the out-door card issued by the PGI and his report is Ex. PJ/1.
13. P.W. 5 — Dr. J.L. Goel, Senior Resident, Dr. Rajendra Prasad Centre for Opthalmic Sciences, All India Institute of Medical Sciences, New Delhi stated that he examined Maninder Singh patient on June 13, 1986 at about 1.45 A.M. in the casualty with the complaint of being hit by shot gun injury from about 30 feet distance by some unknown person; that the patient was immediately taken to S.B.L.S. Civil Hospital, Jalandhar, where M.L.C. was made and the patient was operated on the right side decompression of the arbit by anterior orbitory and on the left side, abscission of the prolapsed uvea tissue, with vitreous and lens aspiration and Conjective flap was given; that the patient was discharged on the next day i.e. June 12, 1986 and referred to P.G.I./ AIIMS for further management. Dr. Goel’s obseryations, report regarding the condition of the injured and the treatment is contained in Ex. PK. Ex. PL is the Discharge Certificate and Ex. PM is the OPD card of the injured. Ex. PN is the Bed Head ticket and Ex. PN/1, which is part of Bed Head Ticket, is the report of Trauma Clinic. The doctor further stated that chances of gaining visual acuity are very remote because of the anticipated gross damage to the posterior segment. In cross-examination, he stated that they had not operated upon the patient and that he was for the first time giving the opinion in Court with regard to the permanent blindness of the right eye and remote chances of visual acuity in the left eye.
14. P.W. 11 is ASI Kesar Singh, who conducted investigation of the case. He stated that on receipt of wireless message, he went to Civil Hospital, Jalandhar; that he moved application Ex. PZ to the doctor about the fitness of Maninder Singh injured to make statement and the doctor vide endst. Ex. PZ/1 opined that the injured was unfit to make statement; that he then recorded statement Ex. PQ. of Harbhajan Singh, who was present in the hospital, made his endorsement Ex. PQ/1, and sent it to police station and on its basis ASI Darshan Kumar recorded the formal F.I.R. Ex. PQ/2; that Constable Ranjit Singh produced the bloddstained clothes of Maninder Singh which was duly sealed with his seal mark ‘KS’ and after use the seal was handed over to HC Dalbir Singh. ASI Kesar Singh PW further stated that shirt Ex. P2 and vest Ex. P3 of the injured bore the marks of pellets as well as blood-stains and also the signatures of the doctor. The parcel containing clothes, Ex. P. 2 and P. 3 was taken into possession vide Ex. PAA. attested by Dalbir Singh and Ranjit Singh. He further stated that he visited the spot on the same day again but the place of occurrence could not be inspected as it had grown dark; that he visited the spot at about 5.30 A.M. on the following morning and prepared rough site plan, Ex. PB, with correct marginal notes; that he lifted the blood-stained earth from the spot, put the same into tin, Ex. P.4, which was duly sealed with his seal ‘K.S.’ and later on it was sent to the Serologist through Moharrir Head Constable for test and that it was taken into possession vide memo Ex. PR attested by Harbhajan Singh and Dalbir Singh. This witness further stated that he had arrested Balbir Singh accused on June 16, 1986 and Jasbir Singh, accused, on June 23, 1986; that Jasbir Singh accused on interrogation disclosed that he had kept concealed the double barrelled gun along with live cartridge and licence wrapped in a piece of cloth and kept in the Kup of Turi in his village; that in pursuance of his disclosure statement, Ex. PS, which was signed by him and attested by Harbhajan Singh PW and Bawa Singh, he led the police party to the Kup of Turi in his village, wherefrom he produced the piece of cloth containing the double barrelled gun Ex. P1 along with licence; that one empty cartridge was also recovered from the gun, which was sealed in a parcel with his seal ‘KS’ that two live cartridges Ex. P. 6 and P.7, recovered from the said piece of cloth Ex. P. 8 were converted into sealed parcel with his seal mark ‘KS’ and that all these articles were taken into possession vide memo Ex. PS/1 attested by the witnesses. ASI Kesar Singh further stated that on June 14, 1986, he moved application Ex. PCC regarding Maninder Singh injured on which the doctor reported vide endorsement Ex. PCC/1 that the patient had been referred to P.G.I. and the All India Institute of Medical Sciences for further investigation and treatment of right eye, on June 12, 1986. He further stated that on August 10, 1986, Harcharan Singh Sub-Inspector took into possession passport, Ex. PY/1, of Jagtar Singh accused vide memo, Ex. PY, in his presence and that he recorded the statements of the witnesses, deposited the case property with seals intact on the same day and after completion of the investigation, the accused were challaned by Sub-Inspector Dilbagh Singh.
15. The blood-stained earth was sent to the Chemical Examiner and after its examination he opined that human blood was found on the sample. His report is Ex. PDD. The Serologist vide his report, Ex. PEE, gave the result of the examination that one 12 bore Meharsons (India) Cartridge case marked ‘C/1’ contained in parcel ‘A’ had been fired from the right barrel of 12 DBBL gun No. 1291.
16. Mr. P.s. Mann, Senior Advocate, learned counsel for the accused, contended that Jagtar Singh’s certificates, Exhibits DA, DA/1, DA/2 and DA/9, show that he had been getting distinction in school; that he was a National Scholarship holder; that he got first position in M.A. Part-I (English) in the College and 15th position in the University and that in M.A. Part-II (English) he got second position in the College and 11th position in Guru Nanak Dev University. He further contended that Jagtar Singh had also certificates of good moral character to his credit. Learned Counsel further contended that Jagtar Singh being a brilliant student having good academic record had been substituted and falsely implicated in this case. The learned counsel further submitted that Jagtar Singh did not use the gun and in fact, when He was running away being chased by Maninder Singh and Balwant Singh, he took shelter in the haveli of Gurmit Singh and when he came back from the haveli, he came to know that Maninder Singh had fired at his brother Jasbir Singh who, in his self-defence, had fired in order to scare away Maninder Singh and some pellets accidentally hit him and, therefore, he cannot be held responsible for causing injuries to Maninder Singh injured PW. This line of argument, to our mind, does not appear to be convincing one, because there was a case of addition but there cannot be a case of substitution. No person would like to substitute another one and spare the real culprit. The accused are real brothers. They are the first cousins of the complainant party. Thus, there is hardly any ground to falsely name Jagtar Singh accused as the main culprit having fired at Maninder Singh PW. The defence witnesses, namely, Piara Singh (DW-1) and Darshan Singh (DW-2) cannot be said to be independent witnesses. In fact, they were highly interested and inimical towards the complainant party. For instance, Piara Singh (DW-1) has admitted that he along with Charan Singh, Shamir Singh and Puran Singh were convicted for causing injuries to Nama Singh, but in appeal he was acquitted. He denied the suggestion that Gurdev Singh, father of the accused, had been conducting the proceedings on their behalf and that Piara Singh, father of Harbhajan Singh PW, was helping Nama and others. Darshan singh (DW-2) in cross-examination stated that in the month of February, 1985, tournaments were held in their village but he does net know if Harbhajan Singh PW was the President of the Tournament Committee. He admitted that a team of nearby village had come to play in that tournament but he denied the suggestion that under the influence of liquor he had created a scene in the tournament and he was removed and turned out by Harbhajan Singh and other members of the Committee. Gurmit Singh (DW-3), no doubt, tried to support the defence version but the lengthy cross-examination conducted upon him clearly shows that he was inimical towards Harbhajan Singh PW and, therefore, he is not a disinterested witness. DW-4 Shri Atma Singh, Dy. Superintendent of Police (Retd.), stated that he conducted the enquiry and Darshan Singh, Piara Singh and Gurmit Singh DWs appeared before him in that inquiry. In cross-examination, he stated that he had no knowledge that before he had submitted the enquiry report, Sh. Amrao Singh, Superintendent of Police (C.I.D.), Chandigarh, had directed the local police to file challan in the court on November 6, 1986. He further stated that he had summoned the eye-witnesses, but they refused to make statements before him; that Harbhajan Singh was also summoned and 3/4 adjournments were given to him to produce the eye-witnesses, but he failed to produce. He further stated that he did not know if Harbhajan Singh PW had approached Sh. Amrao Singh in writing requesting him to direct the local police to present the challan in the Court and that Harbhajan Singh had complained against him in the said writing before Sh. Umrao Singh. The defence version set up by the accused does not appear to be convincing or probable, whereas the prosecution story as unfolded by PW-6 Harbhajan Singh and PW-7 Maninder Singh injured is quite convincing against Jagtar Singh accused.
17. Although Balbir Singh accused is alleged to be armed with a dang, yet he did not cause any injury with dang on the person of PW-7 Maninder Singh or his brothers Harbhajan Singh (PW-6) and Balwant Singh. He has only been attributed a lalkara. In the prosecution evidence, there is no evidence regarding Jasbir Singh’s participation in the occurrence. It is well known fact that in this part of the country it is common to implicate all the adult members of the family of the accused person. As a matter of abundant caution, Balbir Singh and Jasbir Singh accused are given the benefit of doubt and they are acquitted and their conviction and sentence under Section 326 read with Section 34, Indian Penal Code, is set aside.
18. Mr. I.P.S. Sidhu, learned Assistant Advocate General, Punjab, contended that the learned Additional Sessions Judge has erred in acquitting Jagtar Singh accused of the charge under Section 307, Indian Penal Code, and Balbir Singh and Jasbir Singh co-accused under Section 307 read with Section 34, Indian Penal Code. He further contended that to justify a conviction under Section 307, Indian Penal Code, it is not essential that bodily injury capable of causing death should have been inflicted and that 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. He further contended that the section makes a distinction between an act of the accused and its result, if any, and that such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. He further contended that it is not necessary that the injury actually caused to the victim of the assault should be sufficient under the ordinary circumstances to cause the death of the person assaulted and that what the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in Section 307, Indian Penal Code. The counsel further argued that an attempt in order to be criminal need not be penultimate act and that it is sufficient in law, if there is present an intent coupl with some overt act in execution thereof. In support of his argument, the learned State counsel relied upon the judgment of the apex Court in State of Maharashtra v. Balram Bama Patil, 1983 Cri LJ 331 : (AIR 1983 SC 305), and a Full Bench judgment of this Court in Sarvinder Singh alias Chhinda v. The State, 1977 Chand LR (Cri) 77. In Full Bench judgment in Sarvinder Singh alias Chhinda (supra), it was held thus:–
In our opinion, intention or knowledge is not to be measured by the consequence. It has to be gathered from all the surrounding facts and circumstances. If an act is done with the intention or knowledge requisite for the commission of the offence of murder, “and if there are no circumstances introducing a defence to a charge of murder either by way of a general or a special exception, the offence would be attempt to murder, if the act does not result in death, whatever be the reason for the act not resulting in death, whatever be the nature of the injuries, and even if no injuries are caused. The requisite intention or knowledge is not to be excluded from the mere fact that death is not the consequence of the act. Such an act may not result in death for a variety of reasons, such as the ineffectiveness of the weapon, the ineffectiveness of the assailant, the movement of the victim, the intervention of a sudden obstruction etc. It is true that the mere act of firing a gun need not necessarily lead to the inference of the requisite intention or knowledge necessary to make the offence one of murder. A person may fire a gun in the air intending to frighten someone, a person may aim and shoot at someone’s legs intending to cause injury to the leg, a person may discharge a gun from a distance of 300 yards knowing that the maximum range of the gun is 30 yards. In such or similar situations, one may not draw the inference of the requisite intention or knowledge for the commission of the offence of murder. But, if a person shoots at another at sufficiently close range or if a person fires a loaded cannon at a crowd of persons, the requisite intention or knowledge can be readily inferred. Such an intention or knowledge cannot be refused to be inferred merely because “the act does not result in the death of any one either because the weapon is defective or because the powder is wet or the pellets too small, or because only a few pellets strike the victim, the aim of the assailants being poor, or because the victim is so lucky that no vital portion of the body is injured or expert medical attention available on the spot saves his life and so on. We, therefore, overrule the observations of the Division Bench in Gurmukh Singh v. The State of Punjab. (1973 Chand LR Cri) 290.
In the case before us, Jit Singh charged the accused with selling adulterated liquor. There was an altercation. Surjit Singh and Darshan Singh tried to intervene. The accused opened fire, each shooting one. Balkar Singh shot at Jit Singh from a very close range. Chhida and Baldev Singh did not shoot from such a close range. They shot from a range of about 40 to 50 feet, by no means too long a range. The injuries caused to Surjit Singh and Darshan Singh were no doubt simple but that was not because the accused meant to cause only simple injuries. Surely, the accused did not calculate the distance from which they were shooting and shot at the victims only after satisfying themselves that they could shoot safely without killing. We are satisfied, on a consideration of the material circumstances, that each of the accused intended to cause death when he opened fire. The convictions are, therefore, correct. The appeals are dismissed.
19. Mr. P.S. Mann, Senior Advocate, learned counsel for the accused, did not cite any judgment taking a contrary view.
20. After hearing the learned counsel for the parties, we hold that the learned Additional Sessions Judge, Jalandhar, has erred in law in acquitting Jagtar Singh accused under Section 307, Indian Penal Code. The injuries caused to Maninder Singh injured PW with firearm fully attract the provisions of Section 307, Indian Penal Code, as the injured has completely lost his eyesight of both eyes and the eye-sight cannot be restored.
21. In view of the above discussion, we hold that the prosecution has proved its case beyond doubt against Jagtar Singh accused under Section 307, Indian Penal Code.
22. Resultantly, Crl.A. No. 347-DBA of 1988 (State of Punjab v. Jagtar Singh and Ors.) is allowed qua Jagtar Singh accused and the judgment of the Additional Sessions Judge, Jalandhar, by which Jagtar Singh accused was acquitted under Section 307, Indian Penal Code, and he was convicted and sentenced under Section 326, Indian Penal Code, is set aside. Jagtar Singh accused is convicted under Section 307, Indian Penal Code, and is sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 1,00,000/- (Rupees One Lakh only) or in default of payment of fine, to undergo further rigorous imprisonment for one year. Fine, if recovered, shall be paid to Maninder Singh injured (P.W.7). Crl. A. No. 347-DBA of 1988 against Balbir Singh and Jasbir Singh accused is dismissed. Crl. A. No. 105-SB of 1988 qua Balbir Singh and Jasbir Singh is allowed.