Full Judgment Text
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CASE NO.:
Appeal (crl.) 1313 of 2007
PETITIONER:
SURESH SINGH & ANR
RESPONDENT:
STATE OF HARYANA
DATE OF JUDGMENT: 01/10/2007
BENCH:
C.K. THAKKER & D.K. JAIN
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 1313 OF 2007
ARISING OUT OF
SPECIAL LEAVE PETITION (CRL.) NO. 1661 OF 2007
C.K. THAKKER, J.
1. Leave granted.
2. The present appeal arises out of judgment and
order dated February 28, 2006 in Criminal Appeal No.50-
DB of 1997 passed by the High Court of Punjab and
Haryana convicting the appellants and other accused
persons for various offences. The said appeal was filed by
the accused persons against their conviction and
sentence recorded by the Addl. Sessions Judge, Bhiwani
on December 12, 1996 and December 17, 1996 in
Sessions Case No. 5 of 1994.
3. The case of the prosecution was that on June
29, 1993 between 7.00 and 8.00 a.m., one Daryav Singh
(PW3) and his two sons, Sajjan Singh (since deceased)
and Gaje Singh (PW5) were weeding out the wild grass
from their cotton field. Devender Singh (accused No.1),
Suresh Singh (accused No.3), Shamsher Singh (accused
No.5), Jai Bhagwan (accused No.2), Jai Pal Singh
(accused No.4), Jagbir Singh (accused No.6) and one Raj
Kumar (a juvenile whose case had been referred to the
Juvenile Court) came there. Devender Singh and Jagbir
Singh were armed with pharsas and other four accused
were armed with jaillies. Daryav Singh, Sajjan Singh and
Gaje Singh exhorted that they would teach a lesson to
the complainant side for getting the land of one Pooran
transferred in favour of the sons of Daryav Singh and
they would also uproot their Bajra crops. They also
stated that they would cause injuries to complainant side
and would obtain land from Pooran. PW3-Daryav Singh
told the accused persons not to quarrel and to go back.
The accused persons, however, refused to do so.
Deceased Sajjan Singh and PW5-Gaje Singh also told the
accused persons to refrain from giving abuses but
accused No.6 (appellant No.2) gave a pharsa blow on the
head of Sajjan Singh. Accused No.5 gave a jailly blow on
the neck of PW5-Gaje Singh. Accused No.3-Suresh Singh
(appellant No.1) gave a blow from the reverse side of jailly
on the shoulder of PW3-Daryav Singh. Raj Kumar also
administered a jailly blow on the right knee of PW3-
Daryav Singh. Daryav Singh fell down. Accused No.2-Jai
Bhagwan gave a jailly blow to deceased Sajjan Singh on
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his shoulder. Accused No.5-Shamsher Singh also gave a
jailly blow to deceased Sajjan Singh which hit on his
back. Accused No.2-Jaipal gave a jailly blow to deceased
Sajjan Singh. Sajjan Singh fell down. Accused No.1-
Devender Singh gave a pharsa blow on the left foot of
PW5-Gaje Singh. Accused No.3-Suresh Singh (Appellant
No.1) gave a jailly blow on the shoulder of PW5-Gaje
Singh. Accused No.4-Jai Pal Singh gave a jailly blow to
PW5-Gaje Singh. Accused No.5-Shamsher Singh gave a
jailly blow on the back of PW5-Gaje Singh. The injured
raised an alarm which attracted Rajbir and Raghbir who
rescued the injured. The accused then fled away with
their weapons. Rajbir and Raghbir took the injured to
General Hospital, Charkhi Dadri where PW11-Dr. S.C.
Gupta examined deceased Daryav Singh on the same day
i.e. on June 29, 1993 and found the following injuries.
"On general examination:- General condition
of the patient was guarded. Patient was
conscious. B.P. Was 110/70 mm of Hg.
(Blood from the nose and mouth was present).
1. An incised wound size 6 cms x 1.5 cms bone
deep on the middle of the skull extending
from the middle to the occipital region of the
skull. Margins were smooth and regular.
Hair parts were present inside the wound.
Profused bleeding was present. Advised
Xray skull AP and lateral view.
2. Reddish contusion on the anterior aspect of
the right thigh size 6 cms x 4 cms extending
above downward. Movements were painful
but were not restricted.
3. Reddish contusion on the dorsal aspect of
the left forearm near the wrist joint. It was
tender on touch and size was 4 cms x 2
cms. Movements were painful but not
restricted".
All the injuries were kept under observation.
Their probable duration was within 24 hours.
Injury No.1 was found with sharp weapon
while injuries Nos.2 and 3 were found with
blunt weapon. Exhibit P.J is the copy of
medico-legal report. Exhibit P.J/1 is the
pictorial diagram showing the seats of the
injuries.
4. Dr. Gupta also examined deceased Sajjan
Singh and found the following injuries.
"On general examination:- General condition of
the patient was guarded. Patient was
unconscious. Pupils were sluggishly reacting
to light. Bleeding from the nose and mouth
was present. B.P. Was 110/70 mm of Hg.
Pulse was 96 per minute.
1. An incised wound size 8 cms x 1.5 cms into
bone deep on the middle of the skull
extending introposteriorly. Margins were
smooth and regular hairfullicles were cut
and embedded in the wound. Profused
bleeding was present. Advised X-ray skull
A.P and lateral view.
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2. Multiple reddish contusions of varying size
on the back at the various places.
3. Reddish contusion 6 cms x 3 cms on the left
calf region. Tender on touch. Movements
were painful but not restricted.
4. Reddish contusion on the top of the right
shoulder joint. Movements were painful.
Size was 4 cms x 2 cms extending above-
onward towards the back."
Injuries Nos.1 and 4 were kept under
observation while injury Nos.2 and 3 were
found simple. Probable duration of all the
injuries was within 24 hours. Injury No.1 was
caused with sharp weapon while injuries
Nos.2, 3 and 4 were caused with blunt
weapon.
5. Dr. Gupta also medically examined injured
Gaje Singh (PW5) and found the following injuries.
"General condition was guarded. Patient was
conscious. No neurological deficient. Pupils
were normal and well reacting to light both
sides. B.P. Was 116/80 mm of Hg. Pulse was
86 per minute.
1. A punctured wound of size .75 in diameter
depth (?) on the left side of the neck laterally
4 cm below the angle of the mandible.
Margins were irregular. Fresh bleeding was
present. Injury was kept under observation
subject to Surgeon’s opinion.
2. Contusion on the dorsal aspect of the left
hand reddish in colour. Size was 3 cms x 2
cms. Tender on touch. Movements were
painful. Injury was kept under observation.
3. A lacerated wound on the middle of the left
hand on the palmer aspect. Bleeding was
present. Movements were painful but not
restricted.
4. An abrasion with contusion having clotted
blood on the left foot. Movements were
painful but not restricted.
5. A reddish contusion 3 cms x 12 cms
extending medio-laterally on the back.
Tender on touch."
Injuries Nos.1 and 2 were kept under
observation. Injuries Nos.3, 4 an d 5 were
found simple in nature. Probable duration of
all the injuries was within 24 hours. Injury
No.1 was found with blunt weapon while
injuries Nos.2, 3, 4 and 5 were found with
blunt weapon.
6. After usual investigation, charge-sheet was
submitted. The matter was committed to the Court of
Sessions and charges were framed against the accused
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persons for offences punishable under Sections 147, 148,
149, 302, 323, 324 and 326 of the Indian Penal Code
(IPC).
7. The accused pleaded not guilty to the charges
and claimed trial.
8. The Addl. Sessions Judge (1st), Bhiwani
appreciated the evidence on record and held that the
charges against the accused persons were proved. He,
therefore, recorded an order of conviction against the
accused on December 12, 1996. In the operative part of
the order, the learned Judge observed:
"As such, in view of the above discussion, I
find that all the six accused are guilty of the
offence under Section 302 read with Section
149 IPC for the murder of Sajjan Singh, son of
Daryav Singh; under Section 148 IPC for the
offence of rioting; under Sections 323, 324
read with Section 149 IPC for causing injuries
to Daryav Singh and Gaje Singh, PWs. I
convict all the six accused under these
sections accordingly".
9. The learned Judge, after recording the finding
of guilt, adjourned the matter to December 17, 1996 for
the purpose of considering the quantum of sentence. On
that day, i.e. on December 17, 1996, he heard the
accused persons on quantum of sentence and passed the
following order.
"Above mentioned six accused have been
convicted by me under Section 302 read with
Section 149 IPC, 324, 323 read with Section
149 IPC and 148 IPC vide my detailed
judgment of 12.12.1996. All the accused have
been heard on the question of sentence. All the
accused are young persons between the age of
25 and 35. They have stated that they are the
bread winners for the family and their
dependents. Taking into consideration all the
aspects of the case including the
responsibilities of the accused towards their
dependants and their young age etc., I take a
lenient view and sentence each accused to
imprisonment for life under Section 302 read
with Section 149 IPC. Each accused shall also
pay a fine of Rs.1000/- (Rupees one thousand
only) under the said sections. In default of
payment of fine, the defaulting accused shall
suffer further rigorous imprisonment for two
years.
2. Each accused is sentenced to rigorous
imprisonment for one year under Section 148
IPC.
3. Each accused is sentenced to rigorous
imprisonment for one year under Section 324
read with Section 149 IPC. Each of accused is
also punished with fine of Rs.500/- (Rupees
five hundred only) under the said sections. In
default of payment of fine, the defaulting
accused shall suffer further rigorous
imprisonment for three months.
4. Each of six accused is sentenced to the
rigorous imprisonment for six months under
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Section 323 read with Section 149 IPC.
5. All the substantive sentences against each
of the accused shall run concurrently.
6. The case property be disposed of according
to rules. File be consigned to record room".
10. Being aggrieved by the order of conviction and
sentence, all the accused approached the High Court of
Punjab and Haryana by preferring an appeal. The
Division Bench of the High Court agreed with the finding
of guilt recorded by the trial Court. It observed that there
was no infirmity so far as conviction recorded by the trial
Court was concerned. The High Court, however, partly
allowed the appeal filed by the accused altering the
conviction from Section 302 read with Section 149 IPC to
Section 304, Part II and Section 304, Part II read with
Section 149 IPC. The High Court observed:
"So, in this case, in our opinion, offence
under Section 304, Part II of the Code is made
out. Offence under Section 302 of the Code is
not made out.
The appeal is, therefore, partly allowed.
The impugned judgment and sentence order
are modified. Devender Singh (appellant) is
convicted under Section 304, Part II of the
Code. All the remaining appellants are
convicted under Section 304, Part II read with
Section 149 of the Code. Each of them is
sentenced to undergo R.I for seven years and
to pay Rs.1,000/- (each) as fine and in default
of payment of fine to further undergo R.I for
six months. Each of them is also convicted
under Section 148 of the Code and sentenced
to undergo R.I for one year. Each of them is
also convicted under Section 324 read with
Section 149 of the Code and sentenced to
undergo R.I for one year and to pay Rs.500/-
(each) as fine and in default of payment of fine
to further undergo R.I for three months.
Further, each of them is convicted under
Section 323 read with Section 149 of the Code
and is sentenced to undergo R.I for six
months. All the substantive sentences are
ordered to run concurrently. The amount of
fine, if realized, would be paid to the heirs of
Sajjan Singh.
Appellants Suresh Singh, Shamsher, Jai
Bhagwan, Jai Pal and Jagbir Singh are on bail.
The Chief Judicial Magistrate, Bhiwani, would
issue their warrants of arrest and would
commit them to jail to undergo the remaining
part of their sentence. Appellant Devender
Singh is confined in jail. The Chief Judicial
Magistrate, Bhiwani, would issue fresh
warrants of Devender Singh and send the
same to jail, where he is lodged".
11. Being aggrieved by the above order, all the six
accused approached this Court. On September 14, 2006,
when the matter was placed before the learned Chamber
Judge, a prayer for exemption from surrendering was
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made which was rejected. Four weeks time was granted
to the appellants to file proof of surrender.
12. It appears that thereafter on January 22,
2007, Criminal Miscellaneous Petition No. 1497 was filed
wherein it was stated that Devender Singh (accused No.1)
had expired. Death certificate was also produced along
with the application. It was further stated that Jai
Bhagwan (accused No.2), Jai Pal (accused No.4) and
Shamsher Singh (accused No.5) be permitted to withdraw
from Special Leave Petition since all the three had
already undergone the sentence and special leave on
their behalf had become infructuous. The said
application was allowed by the Court and the prayer was
granted. Thus, out of six accused only two have
remained viz., Suresh Singh-Appellant No.1 (accused
No.3) and Jagbir Singh-Appellant No. 2 (accused No.6).
13. We have heard learned counsel for the parties.
14. The learned counsel for the appellant
submitted that so far as the fatal blow to deceased Sajjan
Singh is concerned, it was administered by Devender
Singh (accused No.1). The trial Court, therefore, recorded
a conviction of all the accused for an offence punishable
under Section 302 read with 149, IPC. An appeal against
the said order was allowed by the High Court and the
conviction from Section 302, IPC was altered to Section
304, Part II, IPC. Whereas Devender Singh was convicted
under Section 304, Part II, IPC, other accused were
convicted for an offence punishable under Section 304,
Part II, read with Section 149, IPC. All the accused were
ordered to undergo rigorous imprisonment for seven
years. During the pendency of the matter in this Court,
however, Devender Singh (accused No. 1) died and
accordingly appeal, so far as accused No.1-Devender
Singh was concerned, got abated. Regarding Suresh
Singh\027appellant No.1 and Jagbir Singh\027appellant No. 2
(accused Nos. 3 & 6 respectively), they had been
convicted by the trial Court for an offence punishable
under Section 302 read with Section 149, IPC and by the
High Court, for an offence punishable under Section 304,
Part II read with Section 149, IPC. The counsel, therefore,
submitted that the conviction as recorded by the High
Court against the appellants is not for a substantive
offence punishable under Section 304, Part II, IPC but as
members of unlawful assembly for an offence punishable
under Section 304, Part II read with Section 149, IPC. It
was, therefore, submitted that even if this Court is of the
view that an order of conviction recorded by the trial
Court and confirmed by the High Court is in consonance
with law and the appellants are not entitled to acquittal,
liberal view may be taken in awarding punishment. It
was also submitted that the appellants were young when
the offence was committed. They are the only bread
winners of the family and the other family members are
dependent on them. Accused No.1 is dead and accused
Nos. 2, 4 & 5 have already undergone the sentence
imposed on them. All these considerations are relevant
for reducing the sentence.
15. The learned counsel for the respondent-State
submitted that the order passed by the trial Court and
modified by the High Court calls for no interference.
16. Having heard the learned counsel for the
parties, in our opinion, it cannot be said that by
recording a finding of guilt against the appellants, any
illegality can be said to have been committed either by
the trial Court or by the appellate Court. Both the Courts
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considered the evidence on record, including substantive
evidence of two injured eye-witnesses, PW3-Daryav Singh
and PW5-Gaje Singh and believed them. Injuries have
been established through the evidence of PW11\027Dr. S.C.
Gupta. We are, therefore, of the opinion that both the
Courts were right in recording a finding of guilt against
the appellants.
17. Regarding sentence, however, we are of the
view that the learned counsel for the appellants is right
in submitting that neither of the appellants has been
convicted for a substantive offence punishable under
Section 304, Part II, IPC. Both of them were convicted
under the vicarious liability mentioned in Section 149,
IPC and they were accordingly convicted for an offence
not amounting to murder punishable under Section 304,
Part II read with Section 149, IPC along with other
offences. In our opinion, therefore, ends of justice would
be met if instead of rigorous imprisonment for seven
years as imposed by the High Court for the said offence,
the appellants are ordered to undergo rigorous
imprisonment for five years. Conviction, sentence and
fine for other offences, imposed on the appellants by the
High Court call for no interference and accordingly that
part of the order is confirmed.
18. For the foregoing reasons, the appeal is partly
allowed. The conviction recorded by the High Court
against the appellants for an offence punishable under
Section 304, Part II read with Section 149, IPC is
maintained, but they are ordered to undergo rigorous
imprisonment for five years instead of seven years.
19. The appeal is accordingly disposed of.