Case Note & Summary
The appellant, Gurdial Singh, was tried along with two co-accused, Darshan Singh and Mukhtiar Singh, before the Judge, Special Court, Ferozepore for the murder of Ram Pal by firearm in furtherance of common intention. The prosecution case was that on June 2, 1984, at about 6.30 P.M., the three accused arrived on a scooter driven by Darshan Singh, and the appellant and Mukhtiar Singh shot Ram Pal with their respective firearms, causing his instantaneous death. The deceased's father, Amrit Lal (PW3), lodged an FIR promptly. The investigating officer, SI Joginder Singh (PW4), recovered six empties of two different bores and blood-stained earth from the spot. The appellant was arrested the same night, and a 12 bore gun and 25 cartridges were seized from him. The trial court acquitted Darshan Singh and Mukhtiar Singh, holding that PW3's ocular evidence stood corroborated by the recovery of two empty cartridges from the spot and the ballistic expert's report that those cartridges had been fired from the appellant's gun. Since no such corroboration was available against the other two accused, they were given benefit of doubt. The trial court convicted the appellant under Section 302 IPC and Section 25 Arms Act, sentencing him to imprisonment for life and rigorous imprisonment for one and a half years respectively, to run concurrently. The Supreme Court examined the evidence and found the trial court's finding that the appellant shot at the deceased with a gun causing injuries unassailable, as PW3 was a natural witness, his evidence was not shaken, and it was corroborated by the medical evidence of PW1, the prompt FIR, the recovery of the gun and cartridges, the forensic report linking the empties to the gun, and the blood-stained earth. The legal issue then arose whether the appellant could be convicted under Section 302 IPC simpliciter or with the aid of Section 34 IPC after the acquittal of the co-accused. The Court noted that PW1 found four injuries caused by two types of firearms collectively sufficient to cause death, but he did not state that the two injuries from the appellant's gun alone were sufficient to cause death. Hence, death could not be conclusively attributed to the appellant alone. On the applicability of Section 34 IPC, the Court referred to Maina Singh v. State of Rajasthan, (1976) 2 SCC 827, Harshad Singh v. State of Gujarat, 1977 CrLJ 352, and Piara Singh v. State of Punjab, (1980) 2 SCC 401, holding that where the prosecution case was that only the named accused participated and the acquittal of co-accused was not based on mistaken identity, the remaining accused could not be convicted with the aid of Section 34 IPC. The Court concluded that the appellant could only be liable for his individual act, which constituted an offence under Section 326 IPC given the weapon used and nature of injuries. Since the gun was unlicensed, the conviction under Section 25 Arms Act was upheld. The Supreme Court set aside the conviction under Section 302 IPC and convicted the appellant under Section 326 IPC, sentencing him to seven years rigorous imprisonment, to run concurrently with the Arms Act sentence, and directed him to surrender.
Headnote
A) Criminal Law - Murder - Sections 302, 326 Indian Penal Code, 1860 - Liability for individual act - Doctor found four injuries caused by two types of firearms collectively sufficient to cause death but did not state that injuries from appellant's gun alone were sufficient; therefore death could not be conclusively attributed to appellant's firing alone - Held that conviction under Section 302 IPC simpliciter was not justified and offence under Section 326 IPC was made out (Paras 1-4). B) Criminal Law - Common Intention - Section 34 Indian Penal Code, 1860 - Applicability after acquittal of co-accused - Where prosecution case was that only three arraigned accused participated and acquittal of two co-accused was not based on mistaken identity, remaining accused cannot be convicted with aid of Section 34 IPC - Reliance placed on Maina Singh v. State of Rajasthan, Harshad Singh v. State of Gujarat and Piara Singh v. State of Punjab - Held that appellant liable only for individual act (Paras 1-4). C) Arms Law - Unlicensed Firearm - Section 25 Arms Act, 1959 - Possession and use of unlicensed 12 bore gun - Recovery of unlicensed gun and cartridges from appellant proved by evidence and ballistic report - Held conviction under Section 25 maintained and sentence to run concurrently with Section 326 IPC (Paras 1-4).
Issue of Consideration
Whether conviction under Section 302 IPC simpliciter was justified when doctor did not state that injuries from appellant's gun alone were sufficient to cause death; whether after acquittal of two co-accused, appellant could be convicted under Section 302 IPC with aid of Section 34 IPC; what offence is made out against appellant based on individual act.
Final Decision
The Supreme Court set aside the conviction under Section 302 IPC and convicted the appellant under Section 326 IPC, sentencing him to rigorous imprisonment for seven years. Conviction and sentence under Section 25 Arms Act were maintained. Both sentences to run concurrently. Appellant directed to surrender to serve the sentence.
Law Points
- If prosecution alleges only named accused participated and some are acquitted not on mistaken identity
- remaining accused cannot be convicted with aid of Section 34 IPC
- liability limited to individual act
- mere fact that injuries from different weapons collectively caused death does not establish individual causation for murder under Section 302 if doctor did not opine individual injuries sufficient
- ballistic evidence corroborates ocular testimony
- unlicensed firearm attracts Section 25 Arms Act
- 1959.
