Full Judgment Text
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PETITIONER:
CHARAN SINGH ETC., LAKHA SINGH
Vs.
RESPONDENT:
STATE OF PUNJAB, STATE OF PUNJAB
DATE OF JUDGMENT: 24/10/1997
BENCH:
G.T. NANAVATI, S.P. KURDKUR
ACT:
HEADNOTE:
JUDGMENT:
THE 24TH OF OCTOBER, 1997
Present:
Honb’le mr. Justice G.T. Nanavati
Honb’le Mr. Justice S.P.Kurdukar
U.R.Lalit, Sr.Adv. AND S.K.Gambhir, Adv. with him for the
appellants
P.S. Sodhi, Adv. for the Respondent
J U D G M E N T
The following Judgment of the court was delivered:
WITH
CRIMINAL APPEAL NO. 62 OF 1988
S.P.KURDUKAR, J.
Both the appellant in these two criminal appeals were
put up for trial before the Sessions Court, Sangrur for an
offence punishable under Section 302/34 IPC for committing
the murder of Karamjeet Singh. The Session Court on
conclusion of the trial by its judgment and order dated May
30, 1986, convicted Lakha Singh (A-1) (appellant in Crl.
Appeal No. 62 of 1988) under for life, but, however,
acquitted Charan Singh (A-2) (appellant in Crl. Appeal No,
612 of 1988). The State of Punjab aggrieved by the order of
acquittal of Charan Singh (A-2) filed criminal appeal before
the High Court of Punjab & Haryana at Chandigarh. The
convicted accused Lakha Singh (A-1) also filed the appeal
challenging his order of conviction and sentence before the
said High Court. Both the appeals were heard together and
the High Court by its judgment and order dated August 24,
1987 allowed the criminal appeal filed by the State and s
aside the order of acquittal of Charan Singh (A-2) and
convicted him under Section No 302/34 IPC and sentenced him
to suffer imprisonment fro life. The appeal filed by Lakha
Singh (a-1) was dismissed. It is against this judgment and
order of conviction passed by the High Court, the appellants
have filed these two separate criminal appeals to this
Court. Criminal Appeal No. 62 of 1988 is by Special Leave
whereas Criminal Appeal No. 61 of 1988 is a statutory
appeal.
2. Both these appeals arise out of common judgment and,
therefore, they are being disposed by this judgment.
3. The prosecution case in nut shell was as under:-
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Karamjeet Singh (since deceased) had advanced a loan of Rs.
100/- to Lakha Singh (A-1) but he failed to return the
said amount. Or 14th August, 1985, Karamjeet Singh demanded
the said amount from A-1, but he refused to pay the same
and, therefore, Karamjeet Singh gave a slap to him.
4. On 15th August, 1985, Karamjeet Singh along with Balbir
Singh, a member of Panchayat and Balbir Singh @ Leela (for
clarity referred to as Leela Singh) were going to the field
of Leela Singh by the side of drain. When they reached near
the sugar cane field of Dial Singh, A-1 and A-2 who were
hiding in the sugar cane crop emerged from the said field
and they were carrying gandasas with them. A-1 then gave a
lalkara saying that they will teach lesson to Karamjeet
Singh for slapping him on the previous day. A-1 and A-2
also gave a gandasa blow on the right shoulder of Karamjeet
Singh. After sustaining bleeding injuries, Karamjeet Singh
fell blow on the ground and thereafter A-1 again gave a
Gandasa blow near his right ear. Balbir Singh (PW 3) and
Leela Singh (PW 4) seeing the ghastly attack on Karamjeet
Singh requested the accused not to cause any assault on
Karamjeet Singh. They raised an alarm and thereafter A-1
and A-2 fled away. Balbir Singh (PW 3) then went to the
village and informed Niranjan Singh (PW 8), a Lumberdar and
also to the wife of Karamjeet Singh. Balbir Singh (PW 3)
then went to the police station at Dhuri along with Rulda
Singh, the brother of Karamjeet Singh and lodged the report
(Ex. PF) at about 2.15 p.m. on the same day. The copy of
the First Information Report was forwarded and received by
Illaqa Magistrate, Dhuri at 2.30 p.m. ST Ajmer Singh (PW 10)
proceeded towards the scene of offence. After holding the
inquest on the dead body of Karamjeet Singh, it was set to
the Civil Hospital, Dhuri for post mortem examination. Dr.
N.C. Garg (PW 1) opined that it was due to the cumulative
effective of injury Nos. 1 and 2 leading to the haemorrhage
and shock which were sufficient in the ordinary course of
nature to cause death. In the meantime, SI Ajmer Singh (PW
10) completed the necessary investigation and filed the
charge sheet against A_! AND A-2 for offence punishable
under Section 302/34 IPC.
5. The appellants denied the charges levelled against them
and pleaded that they have been falsely implicated in the
present crime. The prosecution witnesses were telling lies
against them being interested in the deceased. They pleaded
that they be acquitted.
6. The prosecution examined two eye witnesses, namely,
Balbir Singh (PW 3) and Leela Sing (PW 4) who claimed to
have seen the entire occurrence. In addition thereto, the
prosecution placed reliance upon the evidence of Niranian
Singh (PW 8), a Lumberdar who prepared the complaint and the
evidence of Dr. N.C. Garg (PW 1) to prove the cause of
death. The prosecution had also relied upon the evidence of
panch witnesses relating to the recovery of incriminating
articles and the panchanama of the scene of occurrence. The
appellants also examined Nachhatar Singh (DW 1) and Lal
Singh (DW 2) to prove the mortgage transaction between Leela
Singh (PW 4) and Nachhatar Singh (DW 1). Ajmer Singh (DW 3)
was the draftsman who prepared the plan (Ex. DG). Harbhajan
Singh (DW 4) was working as SHO at Police Station, Dhuri at
the relevant time. He was examined to prove the entries in
the register kept in the police station relating to the bad
character of Karamjeet Singh.
7. It is not and cannot be disputed that Karamjeet Singh
died a homicidal death. Fr. N.C.Garg (PW 1) who performed
the autopsy on the dead body of Karamjeet Singh noted the
following three injuries:-
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1. Incised would 18 cm x 2 cm x
cutting the underlying bone and
brain matter coming out of right
temporal region 6 cm from outer
can-thus of right eye and going
backwards just above the right
pinna.
2. Incised wound 10 cm x 2 cm
cutting the underlying none on the
right cheek 7 cm from outer canthus
of right eye and cutting the pinna
and mastoid bone.
3. Incised would 3 cm x 1 cm on the
back of right shoulder 6 cm from
top of back of shoulder cutting the
bone.
Dr. N.C.Garg (PW 1) testified that all these injuries
were ante mortem and injuries nos. 1 and 2 were sufficient
in the ordinary course of nature to cause death. Both the
courts below accepted the evidence of Dr. N.C. Garg (PW )
relating to the injuries as well as the cause of death and
we see no reason to differ from the said finding. We,
therefore, conclude that Karamjeet Singh died a homicidal
death.
8. The trial court accepted the evidence of Balbir Singh,
(PW 3) and Leela Singh (PW 4) as trustworthy as far as it
related to the complicity of A-1. Injury Nos. 1 and 2 were
attributed to A-1 and since both these injuries were
cumulatively sufficient to cause the death of Karamjeet
Singh, the learned trial judge convicted A-1 under Section
302 IPC simplicitor for committing the murder of Karamjeet
Singh. The trial court, however, acquitted A-2 and the
reasons thereof are found in paragraph 26 which are as
under:-
(i) He had no motive to commit the murder of Karamjeet
Singh.
(ii) He was not at all in any way aggrieved by the conduct
of Karamjeet Singh nor he had any association with A-1 so as
to joint the latter in commission of the present crime.
(iii) The witnesses failed to disclose how A-1 was
connected with A-2 or both of them belonged to one party.
(iv) The evidence of eye witnesses as regards the injury on
the shoulder did not find corroboration from the medical
evidence. All the three injuries on Karamjeet Singh were
possible with one weapon.
(v) The gandasa which was alleged to have been recovered at
the instance of A-2 was not proved to be stained with human
blood.
(vi) Niranjan Singh (PW 8) did not state in the complain t
that A-2 was the other accused along with A-1.
Relying upon these circumstances, the trial court gave
benefit of doubt and acquitted A-2.
9. The High Court while upsetting the order of acquittal
of A-2 had pointed out how none of these grounds was
sustainable inasmuch as the presence and participation of A-
2 was proved beyond reasonable doubt in the present crime.
The evidence of Fr. N.C.Garg (PW 1) corroborated the
evidence of these two eye witnesses as regards the third
injury though there was some minor error in respect of
placement of the same. The evidence of two ye witnesses did
not suffer from any infirmity and it proved the complicity
of A-2 and the common intention shared by him in the present
crime along with A-1. Consistent with these findings, the
High Court set aside the order of acquittal and convicted A-
2 under Section 302/34 IPC. As regards A-1, the High Court
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confirmed the order of conviction and sentence passed by the
trial court.
10. It was contended on behalf of the appellants that Leeal
Singh (PW 4) had mortgaged his land with possession to
Nachhatar Singh and if it was so, there was no need either
for Leela singh (PW 4) or others to go to the said land.
The claim of the two eye witnesses that they were going
together to the mortgaged land was totally unbelievable and
if this be so, the presence of Balbir Singh (PW 3) and Leela
Singh (PW 4) at the time of occurrence was totally ruled
out. We do not see any substance in this contention because
both the eye witnesses testified that they were going to the
mortgaged land to make a request to Nachhatar Singh to
advance some more money. Both the courts below accepted the
prosecution story in this behalf. We have gone through the
evidence of both these eye witnesses and we do not see any
reason to upset the finding recorded by the courts below.
11. It was then urged that both these eye witnesses were
chance witnesses and in the absence of any corroboration to
their evidence, it would not be safe to accept the said
evidence as truthful. This submission again did not impress
us.
12. It was then contended on behalf of the appellants that
the motive sought to be relied upon by the prosecution did
not find corroboration from any other evidence on record
and, therefore, there was no reason for the appellants to
commit the present crime. We find no substance in this
contention because in the complaint lodged on the very same
day at 2.15 p.m. did mention the fact that A-1 raised a
lalkara saying ".....to teach you a lesson for slapping last
night." Both the eye witnesses in their substantive evidence
in court had testified that Karamjeet Singh had told them
that on the previous night, he gave a slap to A-1 as he
refused to return Rs. 100/- which he had taken on loan. It
is true that there is omission which is brought on record
in this regard but the very intripsic evidence in the FIR
corroborated the evidence of Balbir Singh (PW 3) who lodged
the same. The Courts below have accepted the evidence of
these two witnesses on the question of motive and we see no
reason to differ from the said finding.
13. It was then contended that there was delay in lodging
the first information report as the same was lodged after
concocting a false story against the appellants. We are not
impressed by this submission because the incident in
question took place at 12.30 p.m. and the FIR was lodged at
2.15 p.m. after travelling a distance of seven miles.
Hence, there was no delay in lodging the First Information
Report.
14. After scrutinizing the evidence of these two eye
witnesses, we are satisfied that so far as A-1 is concerned,
the evidence of the two eye witnesses is unblemish an can
safely be accepted as trustworthy. Both the witnesses have
categorically stated that A-1 had given two gandasa blows on
the vital part of Karamjeet Singh and in the opinion of Dr.
N.C.Garg (PW 1) these two injuries were sufficient in the
ordinary course of nature to cause the death. In this view
of the matter, we are of the considered view that the
conviction of A-1 under Section 302 IPC is perfectly legal
and needs to be upheld and accordingly we do so.
15. It is not disputed that A-2 was convicted by the High
Court with the aid of Section 34 IPC for the substantive
offence of murder of Karamjeet Singh. The evidence on
record unmistakably proves that A-2 had given a gandasa blow
on the back side just below the shoulder of Karamjeet Singh.
That injury was not proved to be fatal one. Relying upon
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these two circumstances, it was urged on behalf of A-2 that
he could not be convicted under Section 302/34 IPC. It was
further contended that A-2 had no motive and no reason to
cause gandasa blow on Karamjeet Singh. No blood stains were
found on the gandasa which was alleged to have been
recovered at the instance of A-2. The name of A-2 was also
not mentioned in the complaint and all that was stated a was
that A-1 and other person had assaulted Karamjeet Singh.
The trial court was right in giving the benefit of doubt to
A-2. The High Court, it was contended, was wrong in
attributing common intention to A-2 to commit murder of
Karamjeet Singh and, therefore, committed a serious error in
applying Section 34 IPC and reversing the order of
acquittal. The view taken by the trial court was equally
probable one and, therefore, the High Court was equally
probable one and, therefore, the High Court erred in
convicting A-2 under Section 302/34 IPC. In support of this
submission, Mr. U.R.Lalit learned counsel drew our attention
to the decisions of this Court in Kripal and others Vs.
State of Uttar Pradesh AIR 1954 SC 706. Ram Rattan and
others Vs. State of Uttar Pradesh AIR 1977 SC 619, Bhaba
Nanda Sarma and others Vs. The State of Assam AIR 1977 SC
2252 and Shivalinoappa Kallayanappa and others Vs. State of
Karnataka AIR 1995 SC 254. He also drew our attention to a
decision of the Privy Council in Mehbub Shah Vs. emperor AIR
(32) 1945 PC 118. All these decisions, of not lay down a
formula in a right jacket as regards applicability of
section 34 IPC. The application of Section 34 IPC depends
upon the facts and circumstances of each case. The facts
and circumstances of the present case which were proved by
the prosecution are that both the appellants were hiding in
the sugar cane field of Dial Singh and as soon as they saw
Karamjeet Singh with gandasas in their hands. A-1 then gave
a lalkara saying that "they will teach a lesson to Karamjeet
Singh for slapping him." Immediately thereafter, A-1 gave a
gandasa blow from sharp side on the right side of the head
of Karamjeet Singh. A-w then assaulted karamjeet Singh with
his gandasa on the back side near the shoulder of Karmajeet
Singh and when he fell down, A-1 gave another gandasa blow
near his right ear. These circumstances therefore, in our
considered view unmistakably indicated that both the accused
had a common intention to teach a lesson to Karamjeet Singh
who had slapped A-1 on the previous night.’ From these
proved facts, the only inference that must follow is that A-
2 also shared a common intention to teach a lesson to
Karamjeet Singh and in pursuance thereof assaulted him with
a gandasa. A strong reliance was placed on the fact that no
blood stained was found on the gandasa recovered at the
instance of A-2 but there is positive evidence on that
record that the gandasa was washed before the recovery was
effected. If this be so, in our considered view A-2 was
rightly convicted under Section 302/34 IPC.
16. for the reasons recorded herein above, we find no
substance in these appeals and the same are accordingly
dismissed. The appellants who are on bail shall surrender
to their bailbonds to serve out the remaining part of their
sentences.