State vs Akil @ Pappu
2014 Latest Caselaw 3984 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                  Date of decision: August 28 , 2014

+                         CRL.A._1188/2014
STATE                                                    ..... Appellant
                     Represented by:     Mr.Varun Goswamy, APP for the
                                         State.
                          versus
AKIL @ PAPPU                                               .... Respondent

Represented by: Ms.Inderjeet Sidhu, Advocate.

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J (ORAL)

1. Akil @ Pappu is convicted for the offence punishable under Section 326 IPC and Section 25 Arms Act and directed to undergo rigorous imprisonment for two and a half years with a fine of `3000/- and rigorous imprisonment for two years and a fine of `2000/- for offence punishable under Section 25 Arms Act vide the impugned judgment and order dated December 21, 2012. The State is aggrieved by the learned Trial Court convicting Akil for offence punishable under Section 326 IPC instead of Section 307 IPC.

2. The short issue which arises in the present appeal is whether the act of Akil constitutes an offence punishable under Section 326 IPC or Section 307 IPC.

3. Learned counsel for the Appellant-State submits that Akil caused an injury to Wasim by a gunshot fire which hit Wasim at the left side of his

chest. Akil had come with a pre-meditated mind armed with a desi katta (pistol) and since the gunshot was fired with the intention to kill, learned Trial Court crossly erred in convicting him for offence punishable under Section 326 IPC instead of Section 307 IPC for which he was charged.

4. Learned counsel for the State relies upon the decision in the case JT 2009 (2) SC 140 State of MP Vs. Kashiram and Ors. to contend that it is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. The Court is required to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in Section 307 IPC.

5. Learned counsel for the Akil on the other hand contends that there is no material on record to show that Akil had the intention to kill Wasim. Akil at best can be alleged to have fired indiscriminately which resulted in injury to Wasim. Further the intention, if any, was to injure Munna, father of Wasim and not Wasim, who was injured incidentally. Hence, there is no illegality in the impugned judgment.

6. A brief exposition of facts leading to conviction of Akil by the learned Trial Court for offences punishable under Section 326 IPC and 25 Arms Act is that on May 27, 2010, DD No. 18-A was received at PS Welcome when Inspector Surinder Singh Duggal along with ASI Yasin, Ct. Ajay and Ct. Rajvardhan went to the spot i.e. Janta Colony, Naye Wala Pul, Madarsa Road No.65, Idgah Road where they found that the injured had been removed to the Hospital. After leaving behind Ct. Raj Vardhan and Ct. Ajay at the spot, Inspector Surinder Singh Duggal and ASI Yasin went to GTB Hospital and obtained the MLC of the injured. As per the MLC, the injury

on the victim was round laceration at left side of chest 0.75 Cm with tattooing around the wound, at midaxillary line over line of nipple. The injured Wasim was declared fit for statement with the alleged history of gunshot.

7. Wasim got recorded his statement Ex.PW1/A on the basis of which FIR was registered. He stated that he was residing with his family at L-382, Janta Colony, Welcome and was working as a driver. Two days ago, Akil came to his father in the parking and stated that he should be given way from there as his theft articles would be coming. His father refused to do so. On this, Akil after threatening his father, went away from there. On May 26, 2010 at about 10.00 PM Akil again came and by showing the knife to his father he again asked his father whether he would give him the passage or else he would get the same on the strength of his knife. He along with his brother and uncle were present at the spot. When they proceeded towards Akil he ran away along with the knife. On May 27, 2010 at about 12.30 PM Akil again came to their house and hit the door. He exhorted Munna to come out. On this Wasim came out of the house and Akil immediately fired the pistol which hit on the left side of his chest. He fell down. Akil stated that he should tell his father that in case he does not give him the passage he will shoot him also. When the Akil tried to run away from the spot, the people standing in the adjoining Gali caught hold of him and started beating him. Wasim was taken to the hospital in a TSR by his father Munna and uncle which fact is supported by his MLC Ex.PW4/A which notes that he was brought by his uncle. Wasim deposed before the Court in sync with his statement on the basis of which FIR was registered.

8. The pistol recovered from Akil was sent for ballistic examination. As

per the report of the ballistic expert Ex.PW13/A the pistol was opined to be a fire arm and the firing pin and chamber marks on the crime cartridge case and test cartridge cases were found to be similar. Hence it is proved that firing on the Wasim was done from the pistol which was recovered from Akil.

9. In the decision reported as AIR 1965 SC 843 Sarju Prasad v. State of Bihar it was held that where the accused inflicts a knife injury on a vital region, the fact that no vital organ has been cut, would not by itself be sufficient to take the act of the accused out of the purview of Section 307 IPC. The Court further observed that in order to bring the offence under Section 307 IPC the prosecution must establish that the intention of the accused was one of the three kinds mentioned in Section 300 IPC. It was also observed that the state of mind of accused has to be deduced from surrounding circumstances and motive would be a relevant circumstance.

10. It is well settled that to direct a conviction under Section 307 IPC an intention or knowledge to constitute murder must exist. An attempt 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. The nature of the weapon used, the expressed intention of the accused at the time of the act, the motive of the accused and where injuries are caused, the nature of injuries and severity are required to be taken into consideration in coming to a conclusion on the question of intention.

11. In the present case it stands proved by the prosecution that Akil wanted to use the plot of Munna i.e. Wasim's father as passage for his illegal activities which Munna did not permit. So he threatened him. Further when he came to the house of Munna he was already armed with a

pistol. He exhorted Munna to come out. Instead when Wasim came out he shot him at a vital part of his body i.e. left side of the chest and further threatened to shoot Munna, if passage was not given. All these facts lead to the only inference that he wanted to kill Munna as he was not giving him passage.

12. This brings to the second limb of the argument of the learned counsel for Akil that even on the facts proved at best it can be said that Akil had the intention to kill Munna and not Wasim and thus he cannot be convicted for the offence punishable under Section 307 IPC.

13. Section 301 IPC provides as under:-

"301. Culpable homicide by causing death of person other than person whose death was intended.- If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause."

14. Thus even in a case where the accused has a premeditated design to kill some particular person, but he killed another person he would be liable for murder under Section 302 IPC under the doctrine of transfer of malice as contemplated Section 301 IPC. (Ref. 1991 Crl.L.J.597 Jagpal Singh & Ors. Vs. The State of Punjab).

15. In view of the aforesaid discussion, we modify the impugned judgment and convict Akil for offence punishable under Section 307 IPC and Section 25 Arms Act.

16. List the appeal for hearing the parties on the quantum of sentence on September 02, 2014.

(MUKTA GUPTA) JUDGE

(PRADEEP NANDRAJOG) JUDGE AUGUST 28, 2014 'v mittal'