Full Judgment Text
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PETITIONER:
DARBARA SINGH AND ANOTHER ETC.
Vs.
RESPONDENT:
STATE OF HARYANA AND ORS.
DATE OF JUDGMENT21/04/1992
BENCH:
PUNCHHI, M.M.
BENCH:
PUNCHHI, M.M.
AGRAWAL, S.C. (J)
CITATION:
1992 AIR 1429 1992 SCR (2) 586
1992 SCC Supl. (2) 295 JT 1992 (2) 580
1992 SCALE (1)827
ACT:
INDIAN PENAL CODE, 1860:
Sections 34,148,149,302,304 and 323:
Murder-Common intention-Inflicting injuries with knowl-
edge that the injuries may cause the death of victim-Except
one, other accused did not have such knowledge -Effect of
-Modification of sentence in respect of those accused-Ac-
cused who had knowledge and who inflicted vital injury
-Absence of common intention in causing such injury -Sen-
tence-Altered.
HEADNOTE:
The appellants and two others were charged with and
tried for offences under sections 148,302,149 and 323/149
IPC for causing the murder of one S and causing simple hurts
to one R, both related to the accused. The Trial Judge
acquitted one of the five accused since no part of the
actual occurrence except exhortations were attributed to him
and convicted the other four accused under section 302/34
and 323/34 IPC, and sentenced them to life imprisonment and
6 months rigorous imprisonment respectively.
On appeal, the High Court acquitted one more accused on
the ground that the medical evidence did not corroborate the
claim that he used his kirpan with force as alleged by the
prosecution. The appeal preferred by the complainant against
this acquittal,was dismissed by this Court.
The other three accused whose conviction and sentence
were confirmed by the High Court, have preferred the present
appeals.
It was contended on behalf of the appellants that the
prosecution case has been discredited by the Courts render-
ing the same unacceptable resulting in the acquittal of two
accused and for the same reasons, they also deserved acquit-
tal. It was also contended that the evidence regarding
recovery of weapons did not inspire confidence.
587
Disposing of the appeal, this court,
HELD: 1. There may be a tendency here and there to implicate
a person in addition to actual assailants in a crime but
substitution is rare and that cannot be the case here. As is
evident the parties are closely related. The crime was
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committed in broad day light. The witness is a stamped
witness. There was no reason for the prosecution to falsely
evolve a case against the appellants. The medical evidence
is consistent and corroborative in connecting all the three
appellants. On the eye-witness account and the corroboration
it receives from medical evidence, their guilt is estab-
lished even if the evidence of recovery of weapon is kept
aside.[592 C-G]
2. Out of 13 injuries on the dead body six were incised
wounds and the remaining were blunt weapon injuries. Amongst
the incised wounds the first one was by itself sufficient in
the ordinary course of nature to cause death of the de-
ceased. That injury was positively attributed to the appel-
lant in the second case who opened the attack but the re-
maining five incised wounds were not positively attributed
to him alone. It can safely be assumed that some may have
fallen to his share to be inflicted and others to the co-
accused who has since been acquitted. Even though the Doctor
has stated that all the incised wounds could have been
caused by Kulhar P.1, that by itself cannot go to conclude
that all the incised wounds were caused by the appellant in
the second case. Since he inflicted the first incised wound
on the head of the deceased, which was sufficient by itself
in the ordinary course to cause death, he has rendered
himself liable to be adjudged guilty under section 302 IPC.
[592-H; 593 A_C]
3. Since extensive damage had been done to the limbs of
the deceased after the infliction of vital injury No.1, it
can safely be inferred that despite the assailants’ choosing
non-vital parts of the body for inflicting those injuries,
they must be attributed the knowledge that by their concert-
ed act they were likely to cause death of the deceased, for
which act they could be punished under section 304 part-II
of the Indian penal Code. The act was done while the de-
ceased was alive . The outcome of injury No.1 may or may not
have been perceived by the assailants except the appellant
in the second case, but they were satisfied in choosing and
inflicting injuries on non-vital parts which injuries were
caused by breaking the bones of his arms and legs.[593 F-H]
4. Due to his young age, being in teens, the appellant in
the first case
588
may have acted under the influence of his paternal uncle,
viz; the appellant in the second case. Though he shared the
common intention of causing extensive injuries to the de-
ceased and injuries to P.W.4 he may not have shared the
common intention of causing death but can definitely be
attributed the knowledge that by his concerted act the
victim could die. Similarly the share cropper had acted
under the influence of his employers.but cannot be said to
be a co-participant in intentionally causing the death of
the death of the deceased. He too must be attributed the
knowledge that by his act in concert with others he was
others he was likely to cause the death of the deceased.
Also, no injury on any vital part of the body of the de-
ceased was attributed to either of these accused. According-
ly, these appellants are held guilty of offence under sec-
tion 304 part II IPC, read with section 34 IPC, and not
under section 302 IPC.[594 A-D]
5. The conviction of the appellant in second case is
altered to a plain one under section 302 IPC and his life
sentence is maintained. His conviction and sentence under
section 323/34 is also sustained. The conviction of the
other appellants are altered to one under section 304 part
II IPC read with section 34 IPC for which a sentence of
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seven years rigorous imprisonment is imposed on each of
them.[594 D,E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
715of 1981.
WITH
Criminal Appeal No. 716 of 1981.
From the judgment and order dated 15.5.1981 of the Punjab
and Haryana High Court in Criminal Appeal No. 419(DB) of
1980.
U.R. Lalit, A.N. Mulla, S.K. Sabharwal and O.K. Khullar for
the Appellants.
I.S. Goyal for the Respondent.
The Judgment of the court was delivered by
PUNCHHI, J. These two appeals are directed against the
judgment and order of May 15,1981 passed by a Division Bench
of the Punjab and Haryana High Court in Criminal Appeal No.
419-DB of 1981.
589
The appellants are three in number . They are Wazir
Singh, his nephew Darbara Singh and share-
cropper(seeri)Dalip Singh. These three, together with Mohin-
der Singh the brother of Wazir Singh’ and father of Darbara
Singh, as also one Avtar Singh, Wazir Singh ’s father-in-
law’s brother, stood trial before the sessions Judge, Bhiwa-
ni for offences under sections 148, 302/149 and 323/149
I.P.C.for having caused the murder of Sadha Singh, paternal
cousin of Wazir Singh and Mohinder Singh accused, as also to
have caused simple hurts to Ranjit Singh, PW4 sister’s son
of the deceased. The learned Sessions Judge acquitted Avtar
Singh taking the view that since the Investigating Officer
could not recover the gun, the weapon of offence, from him
in spite of interrogation, his name had been introduced by
the prosecution in order to complete the alleged unlawful
asembly,convenient and handy as it was because of relation-
ship with deceased. Avtar Singh was attributed no part in
the actual occurrence except exhortations. The remaining
four accused were convicted under sections 302/34 and 323/34
I.P.C. and were sentenced to life imprisonment and six
months rigorous imprisonment respectively. In appeal the
High Court acquitted Mohinder Singh accused taking the view
that though he was stated to have used his kirpan with
force, the medical evidence did not corroborate this version
because DR. B.M. Kapur, PW-2, who performed the autopsy of
the deceased, opined that the injuries which apparently were
kirpan injuries could only be caused by the tip of the
kirpan suggesting that much force had not been used. The
High Court then went on to agree with the opinion of Dr.
Kapur to say that all the incised wounds on the deceased
could have been caused by Kulhari Ex.PI. This Kulhari was
suggested to have been used by Wazir Singh appellant towards
commission of the crime. On that premise the High Court let
off Mohinder singh recording the opinion that his participa-
tion was doubtful. For lack of coroboration of medical
evidence the High Court also observed that it was quite
probable that like Avtar Singh, acquitted co-assused, Mohin-
der Singh accused too had been brought in as an accused. As
a result the three apellants remained convicted and sen-
tenced. So they are here before us.
Criminal Appeal No.714 of 1981 was preferred by Ranjit
Singh complainant against acquitted co-accused Mohinder
Singh but this appeal was dismissed by us on 8-4-1992 for
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non-prosecution because learned counsel for that appellant
stated that he had no instructions. So Mohinder Singh re-
mained acquitted.
590
The occurrence took palce on November 10,1979 at 12.30 P.M.
in the open fields of Village Kikral. Deceased Sadha Singh
was present in his fields taking out grass while deceased’s
nephew Ranjit Singh P.W.4 was present ploughing the de-
ceased’s field. close by in their own fields were Jagir
Singh P.W.5 and Malkiat Singh P.W.6. At that juncture Mohin-
der Singh acquitted co-accused armed with a sword, Wazir
Singh armed with a kulhari, Darbara Singh and Dalip Singh,
armed with lathis each and Avtar Singh acquitted co-accused
armed with a gun came together towards the deceased and
opened assault on him. Wazir Singh apellant started and gave
a kulhari blow on the head of the deceased whereas Mohinder
Singh acquitted co-accused gave injuries by kirpan. Dalip
Singh and Darbara Singh appellants inflicted lathi blows,
Avtar Singh acquitted co-accused raised exhortations. When
Ranjit Singh P.W. interfered he was given lathi blows by
Dalip Singh and Darbara Singh, appellants. Jagir Singh and
Malkiat Singh P.Ws. who saw the occurrence came running to
the place and found Sadha Singh lying injured seriously.
Sadha Singh and Ranjit Singh victims were brought by Jagir
Singh and Malkiat Singh P.Ws. in injured condition to Rural
Dispensary, Siwani which is at a distance of 5 kilometers
from the place of occurrence. Dr. Ram Krishan P.W.3 Incharge
of the Dispensary, after examining and giving first aid to
Sadha Singh advised him to be taken to Civil Hospital,
Bhiwani as his condition was serious. Ranjit Singh P.W.
however was admited in the Rural Dispensary Siwani, Siwani
police was informed about the arrival of both the them.
Sadha Singh was taken to Civil Hospital, Bhiwani, where he
was found dead. Dr. Gambhir P.W. 1 sent message to the
police station informing the Bhiwani police about the arriv-
al of the dead body. Sub Inspector Sadhu Sing P.W. 12 on the
basis of message of Dr. Ram Kishan P.W. 3 went to Rural
Dispensary, Siwani where he recorded the statement of
Ranjit Singh P.W.4 at 4.15 p.m. First Information Report on
the basis of the said statement was recorded at the police
station at 5.30p.m. The special report reached the Magis-
trate at Bhiwani on 11-11-1979.
Now about the motive. The grand-father of sadha singh
deceased had four sons, chanan Singh , Bishan Singh, Kishan
Singh and Makhan Singh. The eye-witnesses Malkiat Singh and
jagir Singh are the sons of Chanan Singh. Sadha Singh de-
ceased was the son of Bishan Singh. Mohinder Singh acquitted
co-accused and Wazir Singh appellant are sons of Kishan
Singh. Makhan Singh the fourth son was married to Harnam
Kaur but had not made issue. It appears that Makhan Singh on
September
591
20,1975 executed an agreement to sell his lands in some
proportions to the three families of his brothers, but
Mohinder Singh acquitted co-accused wanted to purchase all
the land of Makhan Singh. The agreement ultimately did not
materialise. Thereafter there is history of acrimony and
illwill between the parties itching to obtain the land of
Makhan Singh. Besides Wazir Singh appellant got lodged FIR
against Sadha Singh deceased in may, 1977 accusing him of an
attack and of having stolen away his motor cycle. such were
the strained relations which provided the motive of the
crime.
The post mortem of Sadha Singh deceased performed by
Dr. B.M. Kapur P.W.2 revealed 13 injuries on his body. the
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first one was an incised wound 2"x1/2" over the left side of
the forehead, on dissection of which it was found to be a
fracture of the frontal bone. There was also extra dural
haemotoma and fracture of the skull on the left side. The
other injuries were either incised wounds or blunt weapon
injuries. They were on non-vital parts of the body. There
were, however, compound and diverse fractures of both bones
of both the legs as well as that of both the arms. The cause
of death then opined by Dr. Kapur was, due to shock and
haemorrhage on account of multiple injuries, which was
sufficient to cause death in the ordinary course of nature.
At the trial however Dr. Kapur went on to add that injury
No.1 could individully be sufficient in the ordinary course
of nature to cause death. He also opined that injuries other
than injury NO.1 collectively were sufficient to cause death
in the ordinary course of nature even if one were to exclude
injury No.1. Dr. Kapur further opined that all the incised
wounds could be caused by kulhari P.1. Dr. Ram Kishan P.W.3
on examination found Ranjit Singh having five injuries on
his person which were simple in nature and were caused by a
blunt weapon. Four of them were contusions which were size-
able and one was an abrasion.
During the investigations the weapons of the offence
were recovered by the investigating officer at the instance
of recovery statements made by the accused persons respec-
tively.
The entire bundle of evidence was produced before the
Court of sessions which led to the result above indicated.
Learned counsel for the appellants individually as well as
collectively at the first instance pressed into service
reasons for the acquittal of Avtar Singh and Mohinder Singh
592
co-accused to contend that the prosecution case has been
discredited by the courts below rendering it unacceptable.
Highlighting this aspect it was contended that the complain-
ant party apparently had spread their net wide and had
dragged in Avtar Singh acquitted co-accused just in order
to lay charge of unlawful assembly and Mohinder Singh co-
accused to share the incised injuries, when those injuries
could have been caused by one weapon like kulhari Ex.Pl. On
that basis it was asserted that P.W.s having told lies the
entire prosecution case deserved throwing out. Beside it was
urged that the evidence regarding recovery of weapons did
not inspire confidence. These arguments even though attrac-
tive do not appeal to us. There may be a tendency here and
there to implicate a person in addition to actual assailants
in a crime but substitution is rare and that cannot be the
case here. As is evident the parties are closely related.
The crime was committed in broad day light. Ranjit Singh is
a stamped witness. There was no reason for the prosecution
to falsely evolve a case against the appellants. Now here
there are two types of injuries on the deceased being in-
cised wounds and blunt weapon injuries totalling 13 in
number. This is suggestive of at least two assailants re-
spectively armed with suitable weapons. to be responsible
for these injuries. But when these seven blunt weapon in-
juries of the deceased are added to five blunt weapon in-
juries of Ranjit Singh P.W. and the extensive damage caused
seen, it becomes evident that there were more than one
assailant inflicting blunt weapon injuries. Thus there were
three assailants as is evident from the result. Besides
shortly before the occurrence Ranjit Singh P.W. was plough-
ing the field and it is expected of a ploughman to be carry-
ing a stick. The very fact that he did not claim to have
used any goes to confirm that he was a victim of two assail-
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ants who could use their blunt weapons against him as well
as against the deceased. The medical evidence is thus con-
sistent and corroborative in connecting all the three appel-
lants, that is, in Wazir Singh having used his kulhari and
Dalip Singh and Darbara Singh having used their lathis in
the commission of the crime. On the eye-witness account and
the corroboration it receives from medical evidence, their
guilt is established even if the evidence of recovery of
weapons is kept aside. We have thus no reason to question
the ultimate result arrived at by the High Court though we
have our doubts about the reasoning employed by it to acquit
Mohinder Singh co-accused.
The next point urged was with regard to nature of the
offence committed by the appellants. We notice that out of
13 injuries on the dead body of Sadha Singh, six were in-
cised wounds and the remaining were blunt
593
weapon injuries. Amongst the incised wounds the first one
above-described was by itself sufficient in the ordinary
course of nature to cause death of the deceased. That injury
was positively attributed to Wazir Singh appellant who
opened the attack but the remaining five incised wounds were
not positively attributed to Wazir Singh appellant alone. It
can safely be assumed that some may have fallen in his share
to be inflicted and others to Mohinder Singh co-accused who
has since been acquitted. Even though Dr. B.M. Kapur has
stated that all the incised wounds could have been caused by
kulhar p.1 but that by itself cannot go on to conclude that
all the incised wounds were caused by Wazir Singh appellant.
Distinguishing the role assigned to Wazir Singh in this
manner, we take the view that on the infliction of the first
incised wound on the head of the deceased, which was suffi-
cient by itself in the ordinary course of nature to cause
death, and death did ensue, Wazir Singh appellant has ren-
dered himself liable to be adjudged guilty under section 302
I.P.C.
Dr. B.M. Kapur has further opined that leaving aside
injury No.1, injuries nos.2 to 13 were collectively
sufficient to cause death in the ordinary course of nature.
In this collection we have five incised wounds and seven
blunt weapon injuries. The blunt weapon injuries are frac-
tures of bones of both the arms and legs. Even though some
of those blunt weapon injuries are extensive and grievious
in nature because of the fracture of bones of the left
fore-arm, right fore-arm, elbow, left leg and right leg,
these by themselves cannot in the facts and circumstances of
this case, be said to have been inflicted by the assailants
other than Wazir Singh appellant with the intention of
causing death, or in ratification of the act of Wazir Singh
appellant. But since extensive damage had been done to the
limbs of Sadha Singh, after the infliction of vital injury
No.1, it can safely by inferred that despite the assailant’s
choosing non-vital parts of the body for inflicting those
injuries, they must be attributed the knowledge that by
their concerted act they were likely to cause death of the
decease, for which act they could be punishable under sec-
tion 304 part-II of the Indian Penal Code.The act was done
while sadha Singh was alive. The outcome of injury No.1 may
or may not have been perceived by assailants other than
Wazir Singh but they were satisfied in choosing and inflict-
ing injuries on non-vital parts of the body of Sadha Singh,
Which injuries were breaking bones of his arms and legs.
We have leaned towards this view also for the reason
that Darbara
594
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Singh, due to his young age being in teens, may have acted
under the influence of his paternal uncle Wazir Singh,
appellant and though he shared the common intention of
causing extensive injuries to deceased Sadha Singh and
injuries to Ranjit Singh P.W. he may not have shared the
common intention of causing the former’s death but can
definitely be attributed the knowledge that by his concerted
act Sadha Singh could die. Similarly Dalip Singh, a share
cropper of his employer, Wazir singh and Mohinder singh,
perhaps had acted under the influence of his employers but
cannot in these facts be said to be a co-participant in
intentionally causing the death of Sadha Singh. He too must
be attributed the knowledge that by his act in concert with
others he was likely to cause to death of the deceased. It
is worth reminding that neither of the two accused Darbara
Singh and Dalip Singh are attributed any injury on any vital
part of the body of the deceased. Thus on the above analysis
Darbara Singh and Dalip Singh, appellants are held guilty
for offence under section 304 Part II IPC, read with Section
34 IPC.
Resultantly we alter the conviction of Wazir Singh
appellant to a plain one under section 302 IPC and maintain
his life sentence. His conviction and sentence under section
323/34 is also sustained. The convictions of Darbara Singh
and Dalip Singh appellants are altered to one under section
304 part II IPC read with section 34 IPC for which sentence
of seven years rigorous imprisonment is imposed on each of
them. The appeals stand disposed of accordingly.
G.N. Appeals disposed of.
595