(1.) THIS is appeal by Gurcharan Singh. It is directed against the judgment of Shri Asa Singh Gill, Additional Sessions Judge, dated January 15, 1968. He has been convicted under Section 506, Indian Penal Code. Instead of awarding sentence of imprisonment and/or fine the trial Court directed that he be released on execution of a bond for Rs. 10,000 with one surety in the like amount to appear and receive sentence when called upon during three years from the date of the judgment and in the meantime to keep peace and be of good behaviour.
(2.) THE facts of the prosecution case are as follows: - Bhagat Singh and his brother Hari Singh are residents of village Rakba. Hari Singh is the President of the Managing Committee of the Gurdwara known as Damdama Sahib. The Appellant is Sarpanch of that village. There is a piece of land near the Gurdwara and is owned by it. Close to it, there is the village. school. The Appellant made an application to the Consolidation Officer for exchange of land situate bet -ween the school and the Gurdwara with another piece of land. That application was made eight months prior to the date of occurrence, which came off on March 19, 1966 The application was forwarded by the Consolidation Officer to the Settlement Officer. The latter sanctioned the exchange on March 19, 1966. Hari Singh got it proclaimed by beat of drum through Sardara Singh Chowkidar of the village that a tank would be dug up in the land the following day in the morning and that the villagers should offer their services for the purpose. The appellant stopped Sardara Singh Chowkidar from making that announcement and asked him to contact Bhagat Singh and Hari Singh and tell them to meet the Appellant. Sardara Singh informed them accordingly. Both the brothers proceeded to the village sath near the village gate. The Appellant was present there. It was 9.30 p.m. Amar Singh, Chanan Singh, Ram Singh, Santa Singh, Bhan Singh and Sunder Singh apart from other residents of the village were present there. The Appellant told Hari Singh that the land, where the tank was proposed to be dug. belonged to the Panchayat and he being the Sarpanch of the Panchayat would not allow the digging of the tank in the land. Hari Singh told him in reply that the land was the land of the Gurdwara and that there existed already a temporary tank and that it was that tank, which was to be dug down and deepened. The Appellant abused Hari Singh and his brother Bhagat Singh. He took out his pistol from the pocket of his pants and fired it. The shot, however, did not hit either of the two brothers. Out of fear, both the brothers ran into their cattle house closeby and bolted the entrance door from inside. After a few minutes, the Appellant carrying a rifle turned up in the lane in front of that house. There too, he hurled abuses at Bhagat Singh and Hari Singh and said that his maternal uncle Shamsber Singh was a member of the Legislative Assembly, that his Son was President of Zila Parishad and that he himself had plenty of influence with the officers. Having said so, he added that he would kill the two brothers and that they could cause him no harm. It is stated that when the Appellant said so, the persons, who were sitting at the sath, were also attracted to the place where the Appellant was present in the lane. They dissuaded the Appellant from indulging in that type of conduct. The Appellant fired three rifle shots. Two of them are said to have struck the window of the house and the third hit its banera. The following day in the morning Bhagat Singh left for Police Station Dakba to lodge report about the occurrence When he was just be -yond the outskirts of the village, police met him there. Bhagat Singh was told that the Appellant had made a report at the Police Station at 11 p. m. on the preceding day. No report was recorded by the police at the instance of bhagat Singh. The following day, Bhagat Singh went to Ludhiana to meet the Superintendent of Police. As the Superintendent of police was out of station on that day, no step was taken by Bhagat Singh. He made complaint Exhibit P. E to the Superintendent of Police on March 23, 1966 followed by two more complaints, one Exhibit P. F. dated April 5, 1966 and the other Exhibit P. G. dated April 6, 1966. No action seems to have been taken on these complaints. Finding that no action was being taken by the police at his instance. Bhagat Singh filed against the Appellant in Court regular complaint Exhibit P. A./l, dated April 11 1966 under Sections 307, 436, 506 and 511 Indian Penal Code. After recording evidence in commitment proceedings, Shri Harnam Singh Judicial Magistrate 1st Class, Ludhiana framed the following charge against the Appellant on December 27, 1966: That you on or about the 19th day of March, 1966 at village Raqba, did an act, to wit, fired a pistol with such intention and under such circumstances that, if by that act you had caused the death of Bhagat Singh, you would have been guilty of murder and thereby committed an offence punishable under Section 307, Indian Penal Code, within the cognizance of the Court of Session. As in course of commitment proceedings, the offence made out against the Appellant was one under Section 307, Indian Penal Code, the Appellant was committed for trial for that offence to the Court of Session. The case of the prosecution was supported by the evidence of Bhagat Singh P. W. 1. Bhan Singh P. W. 2, Amar Singh P. W. 3, Chanan Singh P. W. 4 and Hari Singh P. W. 5 as eye -witnesses of the occurrence.
(3.) IN his statement under Section 342, Criminal Procedure Code, the Appellant admitted that he had called Hari Singh and Bhagat Singh P. Ws., that there WaS some controversy between biro and them, that at that time he fired a pistol -shot as he had been taken in his grip by Hari Singh P. W. and apprehended that beating would be given by Bhagat Singh and Hari Singh with sticks, that the eye -witnesses were not present at the time of occurrence, that after some time while he was passing in front of the house of Bhagat Singh and Hari Singh P. Ws., they and sons of Bhagat Singh started throwing brickbats at him from the roof of their house, that the same struck him and that at that time too he fired a pistol shot in air to frighten them away. The Additional Session Judge's by his judgment dated January 15, 1968 found, on the basis of the evidence led before him, that no offence under Section 307, Indian Penal Code could be held to have been committed by the Appellant. He, however, took the view that the Appellant was guilty of offence under Section 506, Indian Penal Code. Shri S. S. Kang appearing on behalf of the Appellant has contended that the prosecution have failed to make out a case of offence under Section 506, Indian Penal Code and that in any case the conviction of the Appellant for offence under that Section is illegal inasmuch as the Appellant was not charged for offence under that Section but for offence under Section 307, Indian Penal Code.