Full Judgment Text
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CASE NO.:
Appeal (crl.) 713-714 of 2004
PETITIONER:
Balbir Singh, etc.
RESPONDENT:
State of Punjab, etc.
DATE OF JUDGMENT: 03/03/2005
BENCH:
K.G. Balakrishnan & B.N. Srikrishna
JUDGMENT:
J U D G M E N T
WITH
CRIMINAL APPEAL NOS. 776-777 OF 2004
K.G. BALAKRISHNAN, J.
The Additional Sessions Judge, Bhatinda, tried four accused for
the offences punishable under Section 302 read with Section 34 IPC.
Initially, the final report filed by the police was against five accused,
but one of the accused was discharged. The Sessions Judge acquitted
all the four accused. The State of Punjab filed a criminal appeal
against the acquittal of the accused persons and the de-facto
complainant filed a revision challenging the acquittal. The appeal and
the revision were considered by the High Court and the Division Bench
found all the four accused guilty of the offences punishable under
Section 302 read with Section 34 IPC and each one of them was
sentenced to undergo imprisonment for life and to pay a fine of
Rs.2,000/-, with a default sentence of six months further
imprisonment. Aggrieved by the findings of the High Court, A-2 and
A-3 have filed Criminal Appeal Nos. 776-777 of 2004 and the fourth
accused, Balbir Singh has filed Criminal Appeal Nos. 713-714 of
2004. During the pendency of the appeal before the High Court, the
first accused, Gorkha Singh passed away.
The incident giving rise to these appeals happened on
1.10.1993 at about 9.30 AM. Deceased Tara Singh had purchased
an agricultural field in village Kailey Bander from one Gurdial
Kaur in 1990 and since then he had been cultivating that land with
the help of his sons, PW-2 Badal Singh, Gurdev Singh and Harpal
Singh. According to the prosecution, the appellants herein expected
to inherit the property owned by Gurdial Kaur on her death and the
purchase of the property by Tara Singh was resented to by them and
they bore a grudge against him. On the date of the incident, PW-2
Badal Singh and his father deceased Tara Singh were coming back
from the field. PW-3 Jaswinder Kaur, the daughter-in-law of deceased
Tara Singh was also in the near vicinity. When Tara Singh reached
near the field of one Mithu Singh, the four appellants, namely,
Sikander Singh, Gora Singh, Gorkha Singh and Balbir Singh emerged
from the nearby field and Gora Singh told that Tara Singh must be
taught a lesson. Sikander Singh, threw away his ’Sotti’ (wooden
stick) and caught hold of Tara Singh. The turban of Tara Singh fell
down whereupon Gorkha Singh, who was armed with a ’kulhari’
(axe) gave a blow on the left side of the head of Tara Singh. Gora
Singh, who was armed with an axe, also hit Tara Singh on the right
side of his head. Balbir Singh also gave two blows to Tara Singh with
a ’Ghope’ (pointed rod). PW-2 Badal Singh and PW-3 Jaswinder Kaur
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cried out, but the appellants continued to give blows to Tara Singh,
who fell on the ground and died. PW-2 Badal Singh left PW-3
Jaswinder Kaur near the dead body of his father and went to meet the
Sarpanch of village Kailey Bander. The Sarpanch was not
available, so PW-2 reported the incident to his brother, Bhag Singh.
He had also met Chowkidar Banta Singh. It may be noticed that
Tara Singh was formerly a permanent resident of village Virk Khurd
and only after the purchase of the property from Guardial Kaur he had
come down and settled near the agricultural field. PW-2 Badal Singh
then proceeded to his village Vir Khurd and met Jaswant Singh, the
elder brother of his father and along with him he went to the police
station and gave the First Information Report.
The Asstt. Sub-Inspector Bhajan Singh PW-5 took over the
investigation and reached the place of incident. He recovered the
turban and shoes worn by deceased Tara Singh and some blood-
stained soil from the place of incident. He held inquest over the dead
body and sent the same for post-mortem examination through the
Head Constable. There were as many as thirteen injuries on the
body of deceased Tara Singh. PW-1 Dr. Kulbir Singh, who conducted
the post-mortem deposed that injury no. 11 was fatal and the
two horizontal bruises measuring 15 x 2 cms had corresponding
internal injury and the seventh and the eighth ribs of deceased Tara
Singh were fractured and the fractured ribs had pierced the lung
tissue. According to him, the death was due to hemorrhage and
shock.
During their examination under Section 313 of the Criminal
Procedure Code, the accused set up a very curious plea to the effect
that they were falsely implicated and that deceased Tara Singh was
attacked by two unknown persons and that DW-1 Gurjant Singh was a
witness to the incident and the accused examined Gurjant Singh as
DW-1. He deposed that while he was sitting in his house, he heard an
alarm and when he reached the place, he saw two persons causing
injuries to Tara Singh, but he could not identify them. He found Tara
Singh dead on the spot and went to inform his relations and he could
not meet anyone. He came to know that Tara Singh was formerly a
resident of village Virk Khurd and proceeded to Virk Khurd in his car.
There he met PW-2 Badal Singh and then they came back to Kailey
Bander. PW-2 Badal Singh made consultation with Jaswant Singh and
gave the First Information statement to the police.
The Sessions Judge, of course, did not accept the evidence of
DW-1, but he acquitted the accused mainly for the reason that there
was inordinate delay in giving the First Information statement to the
police by PW-2 and as the witness could not satisfactorily give any
explanation, this was taken as a serious lapse on the part of the
prosecution. Another reason given by the Sessions Judge was that
PW-2 Badal Singh could not have been present at the scene of
occurrence as he did not make any attempt to save his father from
the assailants. According to the Sessions Judge, had PW-2 been
present at the scene of occurrence, he would have certainly
intervened to save his father. The Sessions Judge was also of the
view that there was no penetrating injury found on the body of the
deceased Tara Singh, although according to PW-2, the accused had
given a piercing thrust on the body of the deceased Tara Singh with a
’Ghope’ and that there were contradictions between the medical
evidence and the oral evidence.
The High Court reversed the findings of the Sessions Judge and
held that the delay in giving the F.I.R. was of no consequence as it
was satisfactorily explained by PW-2. The High Court was also of the
view that PW-2 being a young man could not have intervened in the
attack on his father as there were four assailants, who were armed.
According to the High Court, the same could not be taken as a factor
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to disbelieve PW-2. The High Court thus reversed the findings of the
Sessions Judge.
We heard Shri Ranjit Kumar, learned Senior Counsel for the
appellants and also the counsel for the State of Punjab. The evidence
of PW-2 and PW-3 shows that the accused attacked the deceased with
various weapons. The prosecution evidence shows that deceased
Tara Singh and his family members were originally the residents of
village Virk Khurd. They had purchased the agricultural property in
question about three years before the incident and constructed a
hutment nearby and started living there. When PW-2 saw the
ghastly incident of attack on his father by the assailants, he could not
seek the help of anybody from the village Kailey Bander where the
incident took place, probably because he had no acquaintance there.
He went in search of the Sarpanch of the village but could not meet
him and therefore he was constrained to go to his own village Virk
Khurd and met his father’s elder brother and then went to the police
station. It cannot be said that a young person like PW-2 acted in
an unreasonable manner. The counsel for the appellants pointed out
that two of his brothers were in the nearby field, but PW-2 did not
inform them. As stated before, deceased Tara Singh with his family
members had come to village Kailey Bander three years before the
incident and probably they too may not have any acquaintances.
Therefore, it is quite probable that for this reason PW-2 chose to go to
the village Sarpanch. The High Court was fully correct in holding that
PW-2 cannot be disbelieved for not having intervened in the melee
as there were four assailants who were armed with weapons. In our
view, the High Court rightly reversed the findings of the Sessions
Judge. The contention of the appellants counsel that there were
contradictions between the medical evidence and oral evidence also
is of not much consequence as the witness could not be in a position
to specifically say as to which portion of the weapon was used when
there was a sudden attack by a group of persons.
Coming to the nature of the offence committed by the
appellants, there is evidence to the effect that the appellants only
wanted to teach a lesson to Tara Singh. They were aggrieved by the
fact that deceased Tara Singh had purchased the agricultural land
which they expected to get from Gurdial Kaur. Two of the
assailants were armed with axes, but they did not use the sharp
edge of those weapons and the injuries sustained by deceased Tara
Singh would show that there were no deep penetrating injuries.
Most of the injuries were of minor nature, having possibly been
caused by the blunt edge of the weapon. The doctor, who conducted
the post-mortem examination deposed that injury no. 11, namely,
two bruises on the back of the deceased Tara Singh fractured two of
his ribs. The evidence of PW-2 and PW-3 clearly is to the effect that it
was Sikander Singh who caused those injuries, which ultimately
proved fatal. Two other injuries were caused by Gorkha Singh, the
first accused. Appellants Gora Singh and Balbir Singh are not
alleged to have caused any fatal injury to the deceased Tara Singh.
Gora Singh, though armed with a ’Kulhari’ (axe), used the blunt
portion of that axe. Sikandar Singh was armed with a ’Sotti’
(wooden stick). He caught hold of deceased Tara Singh to enable
other assailants to cause injury to him and Sikandar Singh himself
gave ’Sotti’ blows on the back of the deceased which resulted in
causing fracture of the ribs and, in turn, piercing of the lung tissues
of the deceased Tara Singh. There is no dispute that these injuries
were caused on Tara Singh. It is clear that Sikandar Singh dealt the
fatal blows which ultimately resulted in the death of the deceased. If
the entire prosecution evidence is considered in the background of the
so called motive alleged, it is very difficult to discern that these
appellants had any common intention to cause the death of the
deceased. The ’Sotti’ blows dealt on the back of deceased Tara
Singh proved fatal causing fracture of ribs which pierced his lung
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tissues.
On careful analysis of the prosecution evidence and the role
played by each one of the appellants, we are of the view that the
evidence does not show that these appellants shared a common
intention to cause the death of the deceased. However, appellant
Sikandar Singh caused injuries on deceased Tara Singh which
proved to be fatal at the end. The act committed by Sikandar Singh
would come within the offence punishable under Section 304 Part I IPC
as he could be attributed with the knowledge that the injury caused by
him is likely to cause death. The grievous injuries caused by other
appellants, namely Gora Singh and Balbir Singh, would fall within the
mischief of Section 326 IPC.
In the result, we set aside the conviction and sentence of all
the appellants under Section 302 read with Section 34 IPC and alter
the conviction of the appellants as follows: Sikandar Singh is found
guilty of the offence punishable under Section 304 Part I IPC and he is
sentenced to undergo imprisonment for a period of seven years and
the other appellants, namely, Gora Singh and Balbir Singh are found
guilty of the offence punishable under Section 326 IPC and sentenced
to imprisonment for a period of three years. The appellants are
entitled to set off the period of imprisonment already undergone by
them. The appeals are accordingly disposed of.