Full Judgment Text
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PETITIONER:
JAGTAR SINGH AND ANR.
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT: 06/11/1998
BENCH:
M.K.MUKHERJEE, A.P.MISRA
ACT:
HEADNOTE:
JUDGMENT:
JUDGMENT
M.K.Mukherjee.J.
Jagtar Singh and Harbans Singh, the appellants
herein, along with their another brother Makhan Singh and
father Bhura Singh were tried by an Additional Sessions
Judge of Bhatinda for committing murder and other cognate
offences in furtherance of their common Intention. The
trial ended in convication of Harbans Singh under Section
302 I.P.C., Jagtar Singh under Sections 307 and 326 I.P.C.,
Makhan Singh under Section 324 I.P.C. and Bhura Singh under
Section 323 I.P.C. (tow counts). Assailing their
convations they preferred and appeal before the High Court;
and the respondent - State, in its turn filed an appeal
against the acquittal of Bhura Singh, Jagtar Singh and
Makhan Singh of the charge of murder. One of the injured,
namely, Nidharak Singh also filed a revision petition
against the above acquittal. By a common judgment the High
Court disposed of the appeals and the revision petition by
upholding the convictions of the appellants as recorded by
the trial Court, further convicting the appellant Jagtar
Singh under Section 302/34 I.P.C. and Harbans Singh under
Section 307/34 and 326/34 I.P.C. and acquitting the other
tow accused persons. Hence this appeal.
2.The prosecution case briefly stated is as follows:
a)In the morning of September 3, 1991 Naib Singh (the
deceased) and his son Nachhattar Singh (P.W.3) had gone to
Jaitu Mandi for selling cattle. In that night, at or about
9.00 P.M., Nidharak Singh (P.W.2) and his uncle Ajaib Singh
(brother of Naib Singh) went to the house of Naib Singh, to
enquire whether they had returned from the Mandi. Reaching
there they found them standing outside their house. A
little later, the four accused persons came there armed with
deadly Weapons and started assaulting them. Jagtar Singh
first gave a blow on the head of Nachhattar Singh with a
khapra as a result of which he fell down. Bhura Singh then
gave him a kassauli blow and Harbans Singh a Gandasa blow on
the left side of the head of Naib Singh, who also fell down.
When Nidharak Singh and Ajaib Singh tried to separate them
Jagtar Singh gave one Khapra blow to Naib Singh near his
left ankle and Bhura Singh gave a kassauli blow to Naib
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Singh on his left thigh. Then Makhan Singh gave a blow with
a sale on his left ankle and another blow on his left thigh.
When Ajaib Singh raised alarms the four accused persons ran
away from the spot. The motive ascribed for the assault was
a dispute between the parties over a khal (water course) for
which proceedings under Section 107 Cr.P.C. Were initiated
against both of them.
b)Ajaib Singh and Gurdev Singh (another brother of
Naib Singh) took the three injured to Primary Health Centre,
Goniana in a tractor-trolley where Dr. P.C. Singal (P.W.7)
examined them and then sent a Rupa to Nahianwala Police
Station. On receipt thereof A.S.I. Tarsem Chand (P.W.5) came
to the Health Centre and recorded the statement of Nidharak
singh (P.W.2) On that statement a case was registered and
investigation taken up. In the meantime Naib Singh had been
forwarede to P.G.I. Hospital at Chandigarh for better
treatment where he succumbed to his injurles on 10.10.1991.
c)On completion of investigation the Police submitted
a charge-sheet against the four accused persons and in due
course the case was committed to the Court of Session.
3.The accused persons pleaded not guilty to the
charges levelled against them and contended that they had
been falsely implicated.
4.In support of their respective cases the prosecution
examined ten witnesses of whom P.Ws.2 and 3 figured as eye
witnesses and the defence two.
5.In the context of the un-impeachable and
un-impeached evidence adduced by the doctors to prove that
Naib Singh met with a himicidal death and P.Ws.2 and 3
sustained grievous injuries caused by instruments for
cutting, the crucial question that fell for determination
before the learned Courts below was whether the accused
persons were responsible for the above offences. On
discussion of the evidence adduced by the parties and
relying upon the evidence of the two injured the trial Court
held that Harbans Singh alone was responsible for the murder
of Naib Singh and the other accused persons did not share
the common intention to commit the murder, even though they
also participated in the assault upon him. Similar finding
was recorded by the trial Court in convicting the other
three accused persons including the appellant Jagtar Singh
in the manner earlier stated for the assault on Nachhatar
Singh and Nidharak Singh. The High Court agreed with the
trial Court that P.Ws 2 and 3 were reliable witnesses but in
disagreement with it, held that the two appellants shared a
common intention in committing the murder of Naib Singh,
attempting to commit the murder of P.W.3 and causing
grievous hurt to Naib Singh. The High Court, however,
acquitted the other two accused persons giving them the
benefit of doubt.
6.Having heard the learned counsel for the partles and
on going through the record we do not find any reason to
disbelieve the evidence of the two injured eye witnesses
more so when their evidence stands fully corroborated by the
medical evidence. Indeed, Mr. Gujral, appearing for the
appellants, did not, in his usual fairness, ask us to
reappraise their evidence in view of the concurrent findings
of the Courts below in this regard. He, however, strongly
urged that from the evidence on record a conclusive
inference that Naib Singh was murdered could not be drawn
for the evidence of the doctor clearly indicated that his
death was caused by septicemia and not by the injuries
sustained by him. He next contended that even if it was
assumed for argument’s sake that Harbans Singh was guilty of
the offence of murder, Still the appellant Jagtar Singh
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could not be convicted with the aid of Section 34 I.P.C. as
the evidence of the two eye-witnesses did not firmly
establish that he shared a common intention with Harbans
Singh to commit the murder.
7.Having given our anxious consideration to the first
contention of Mr. Gujral we do not find any substance in ti.
It is true that Naib Singh died 17 days after the incident
due to septecemia, but Dr. M.P.Singh (P.W.1), who held the
post-mortem examination, categorically stated that the
septicemia was due to the head injury sustained by Naib
Singh and that the injury was sufficient in the ordinary
course of nature to cause death. From the impugned judgment
we find that the above contention was raised on behalf of
the appelants and in rejecting the same the High Court
observed :-
"It is well settled that culpable
himicidal is not murder when the case is
brought within the five exceptions to section
300 Indian Penal Code. But even though none of
the said five exceptions is pleaded or prima
facie established on the evidence on record,
the prosecution must still be required under
the law to bring the case lunder any of the
four clauses, firstly to foruthly, of Section
300, Indian Penal Code, to sustain the charge
of murder. Injury No. 1 was the fatal injury.
When this injury is judged objectively from
the nature of it and other evidence including
the medical opinion of Dr. M.P.Singh (P.W.1),
we are of the considered view that injury was
intended to be caused with the intention of
causing such a bodly injury by Harbans Singh
appellant on the person of Naib Singh which
was sufficient in the ordinary course of
nature to cause ................"
On perusal of the evidence of P.W.1 in the light of
explanation 2 to Section 299 I.P.C . We are in complete
agreement with the above quoted observations of the High
Court.
8.As regards the other contention of Mr. Gujral we,
however find much substance. Undoubtedly, the appellants had
gove together to the house of the deceased armed with deadly
weapons and attacked him, but according to the evidence of
the two eye-witnesses, Jagtar Singh assaulted Naib Singh on
his left ankle with the weapon he was carrying. From this
circumstance and the other attending facts and circumstances
appearing on record it can only be said that Jagtar Singh
intended to cause grievous hurt to Naib Singh and not to
cause his death. So far as the further convictions recorded
against the two appellants by the High Court are concerned
we are of the opinion that the same cannot be sustained as
the appeal preferred by the State and the revision petition
filed by P.W.2 were limited to the acquittal fo the three
accused persons of the charge under Section 302/34 I.P.C.
only.
9.On the conclusion as above we uphold the conviction
and sentence of the appellant Harbans Singh under Section
302 I.P.C. and those of appellant Jagtar Singh under
Sections 307 and 326 I.P.C. and set aside their other
convictions. The appeal is thus, disposed of Jagtar Singh,
who in on bail, will now surrender to his bail bonds to
serve out the sentences imposed upon him by the trial Court.