Full Judgment Text
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CASE NO.:
Appeal (crl.) 559 of 2002
PETITIONER:
Major Singh
RESPONDENT:
State of Punjab
DATE OF JUDGMENT: 27/11/2002
BENCH:
N.Santosh Hegde & B.P.Singh.
JUDGMENT:
J U D G M E N T
SANTOSH HEGDE,J.
The appellant was charged along with his mother
Balwant Kaur who was A-2 before the Sessions Court for an
offence punishable under Section 302 read with Section 34 IPC
while his father Jeet Singh A-1 and Thana Singh A-4 (who is
the uncle of the appellant) were charged for an offence under
Section 302 IPC simpliciter for having caused the murder on
7.11.1995 of Sukho and Gurtar Kaur, wives of the appellant.
The prosecution case briefly is that the deceased Gurtar
Kaur was married to Baldev Singh, brother of the appellant,
while the other deceased Sukho was married to the appellant.
They were daughters of Pritam Singh PW-2. It is stated that
after the death of Baldev Singh, his wife Gurtar Kaur also lived
with the appellant as his wife. None of them had any children.
The prosecution further states that Jeet Singh A-1 and Balwant
Kaur A-2 along with the appellant were constantly harassing
the deceased for not bringing sufficient dowry. The further case
of the prosecution is that on the day before the incident in
question, PW-2 Pritam Singh along with his son Phulel Singh
had visited the house of A-1 to bring about a settlement in
regard to the dispute of non-payment of dowry. It is also stated
that both PW-2 and his son Phulel Singh stayed overnight in the
house of Jeet Singh and in the following morning on 7.11.1995
at about 9 or 10 a.m. A-1 and A-2 picked up a fight with the
deceased ladies in regard to the complaint made by them to
their father as to non-payment of dowry. During the course of
the quarrel, it is stated that A-1 picked up a Kassi and Thana
Singh A-4 picked up a Kulhari and assaulted the deceased. At
that time, the appellant caught hold of Gurtar Kaur by her hand
while A-1 Balwant Kaur caught hold of Sukho’s hand so as to
facilitate the other two appellants namely A-1 and A-4 to
assault the deceased. The injury caused to the deceased was so
grievous that both of them died on the spot. The further case of
the prosecution is that the accused persons including the
appellant ran away from the place of the incident while PW-2
Pritam Singh went to the Police Station along with one Jagdip
Singh DW-4 and lodged a complaint at about 11 a.m. at the
Rode P.S. which is about 8 kms. from the place of the incident.
After the investigation the abovementioned 4 accused persons
were charge-sheeted as stated above.
Learned Sessions Judge, Faridkot, who tried Sessions
Case No.12/96 came to the conclusion that the prosecution has
proved the charges against the accused persons and sentenced
A-1 and A-4 to undergo imprisonment for life for offences
committed by them under Section 302 and directed a payment
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of fine of Rs.1,000/- each, and in default of payment of fine to
undergo further RI for 3 months each. He further sentenced A-2
Balwant Kaur and the appellant under Section 302 read with
Section 34 IPC and directed them to undergo imprisonment for
life and to pay a fine of Rs.500/- each in default to undergo
further RI for one and a half months each, for their respective
roles in the murder of the deceased.
The appeals filed by A-1, A-4 and the appellant came to
be dismissed by the High Court while giving the benefit of
doubt to A-2 Balwant Kaur, it allowed her appeal and set aside
her conviction.
In this appeal only appellant (A-3) is before us.
The two points urged in this appeal by Mr. K B Sinha,
learned senior counsel appearing for the appellant, are : (i)
assuming that the prosecution case is true that the appellant
held the hand of one of the deceased when she was attacked, the
appellant cannot be attributed with the common intention of the
attacker since the attack in question arose without premeditation
and in a sudden fight. (ii) the appellant is a polio patient with
60% disability on his legs, therefore, it was not possible for him
to have physically held the deceased persons while she was
attacked and the further case of the prosecution that after the
attack the appellant ran away from the place of the incident also
cannot be believed because as per the material on record, the
appellant was hardly able to walk with difficulty.
Prosecution case as to the attack on the deceased rests
mainly on the evidence of PW-2 since only other eye-witness
Phulel Singh who has not been examined by the prosecution
because of the fact that he had become mentally deranged after
the murder of his two sisters hence was not available to be
examined in this case. PW-2 in his evidence has clearly stated
that there was ill-treatment of his daughters by the family of A-
1 Jeet Singh in regard to not bringing sufficient dowry. PW-2 in
his evidence stated that on the date of the incident at about 9 or
10 a.m. when they were sitting in the courtyard of the first
accused, all the accused persons were present and when he
questioned the accused persons why his daughters were being
ill-treated, the accused persons got enraged and started abusing
his daughters and within a few minutes A-4 picked up a
Kulhari, A-1 picked up a Kassi and A-2 Balwant Kaur caught
hold of deceased Sukho by her arms and the appellant caught
hold of deceased Gurtar Kaur also by her arms. While they
were so holding the victims, A-1 and A-4 gave blows with the
said weapons on the respective deceased persons. It is PW-2’s
case that after the attack, they ran away from the place of the
incident before the Sarpanch of the village could come there.
Thus from the evidence of this witness, whose presence cannot
be disputed at the place of the incident, it is clear that the
appellant held the hand of Gurtar Kaur when she was assaulted.
Learned counsel for the appellant however submitted that there
is no material to show that the appellant had shared the
common intention of the assailants because there was no way
the appellant could have known that A-1 andA-4 would attack
the deceased with an intention to kill them. He submitted that
the assailants had not come armed but picked up the weapons
which are normally found in the house of an agriculturist and
using the same they assaulted the victims, therefore, assuming
that the prosecution case that the appellant held the hand of the
victim is true even then it cannot be said that the appellant
shared the common intention of the assailants. We are unable to
accept the explanation of the learned counsel. It is to be seen
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from the prosecution evidence that when the assailants picked
up the weapons and came to assault the victims the appellant
held the hand of one of the victims so as to help the assailants
assault the victims. There is no material on record to show that
he either released the hand of the deceased or tried to dissuade
the assailants from attacking. In such a situation in our opinion
it is reasonable to conclude that the appellant also shared the
intention of the assailants which is now held to be one to
commit the murder of the deceased, and this being a concurrent
finding of the courts below which finding we do not consider to
be in any manner unreasonable, we are in agreement with the
same.
Learned counsel for the appellant then contended that
right from the young age, the appellant was afflicted by polio
on his lower limbs consequent to which he was hardly able to
stand or walk. He pointed out that the disability was nearly 60%
on his legs, in such a case that it would be very difficult to
accept the prosecution case that this appellant could hold the
hands and of a grown up lady like Gurtar Kaur right through the
assault. He also pointed out that the prosecution case that the
appellant thereafter ran away from the place of the incident
cannot also be accepted in view of the medical evidence that the
appellant could hardly walk with difficulty. We have perused
the medical certificate produced on behalf of the appellant so
also the defence evidence led in this regard, and having done so
we are not inclined to accept the argument of the learned
counsel addressed in regard to this point also. It is seen from the
records the disability was confined only to the legs of the
appellant and was only in regard to his walking. This does not
preclude the appellant from standing up and holding the hand of
the victim when the assault took place. Therefore, the
contention that the appellant was physically not in a position to
hold the hand of the victim cannot also be accepted. The next
limb of this argument that the evidence of PW-2 that the
appellant also ran away from the place of the incident would
shows that PW-2 was not talking the truth. We notice that what
was meant by PW-2 is that after the attack and before the
Sarpanch came, all the accused persons went away from the
place of the incident. Since even according to the medical
evidence the appellant is capable of mobility though with
difficulty, this part of the prosecution evidence cannot be
construed as false solely on the ground that the word used by
PW-2 was that the appellant also ran away. As stated above by
this, what he actually meant was that the appellant along with
other assailants left the place of the incident before the
Sarpanch could come to the place of the incident. Therefore, we
are not inclined to reject the evidence of PW-2 on this score.
For the reasons stated above, this appeal fails and the
same is hereby dismissed.