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PETITIONER: GURNAM SINGH & ANR.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT19/10/1995

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) KIRPAL B.N. (J)

CITATION:  JT 1995 (8)   235        1995 SCALE  (6)70

ACT:

HEADNOTE:

JUDGMENT:                       J U D G E M E N T M.K. MUKHERJEE, J.      Gurnam Singh  and Pala Singh, the two appellants before us, along  with four  others were placed on trial before the Judge, Special  Court, Ferozepore  to answer  charges  under Sections 148,  302/149 and  324/149 I.P.C.  On conclusion of the trial  the learned  Judge convicted  the two  appellants under Section  302/34 I.P.C.  and sentenced  each of them to suffer imprisonment  for life,  while acquitting the others. Aggrieved thereby  the appellants have preferred this appeal under Section  14 of  the Terrorist  Affected Area  (Special Courts) Act, 1984.      Shorn of details the prosecution case is that on August 10, 1984  at  or  about  5  P.M.  when  Malkiat  Singh  (the deceased) and  his  brother  Nachhatar  Singh  (P.W.4)  were irrigating their  paddy field with the water of a Government Khaal (water  channel)  which  is  brought  to  their  field through an  outlet allotted to them, Gurnam Singh came there and closed  the outlet.  As soon  as Malkiat  Singh tried to open it  Gurnam Singh  gave a blow with a Kassi on his head. P.W.4 then  rushed to his rescue but, by that time the other appellant Pala  Singh reached there armed with a gandasa and accompanied by  others. On  a lalkara  raised  by  Gurcharan Singh (since  acquitted) Pala  Singh gave  a gandasa blow on the head  of Malkiat  Singh. When  P.W.4 tried  to intervene Pala Singh  assaulted him also. Thereupon the appellants and others started  assaulting the  deceased further. Finding no other alternative P.W.4 and his brother Jit Singh retaliated by beating  Gurnam Singh. Then the accused persons fled away with  their   respective  weapons.   Immediately  thereafter Malkiat Singh  and P.W.4 were taken to the hospital at Bagha Purana where  Dr. T.C. Aggarwal (P.W.1) examined them. P.W.1 also attended  to the  injuries of Gurnam Singh who had also come to the hospital the same evening. P.W.1 sent the medico legal reports  of  their  injuries  to  Bagha  Puana  Police Station and  considering the  injuries sustained  by Malkiat

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Singh referred  him to  the  Ludhiana  Hospital  for  better treatment. On  receipt of  the medico  legal  reports,  Shri Natha Singh  (P.W.5) ASI  of Police attached to Bagha Purana Police  Station  went  to  the  Hospital  and  recorded  the statement of  Nachhatar Singh. He forwarded the statement to the Police  Station for  registering  a  case  and  took  up investigation. On  the same day he recorded the statement of Malkiat Singh also.      While  in  the  Hospital  at  Ludhiana,  Malkiat  Singh succumbed  to   his  injuries   on  August   17,  1984   and consequently the  case, which  was earlier  registered under Section 324  I.P.C. was  converted to  one under Section 324 I.P.C. was  converted to one under Section 32 I.P.C. He held inquest upon  the dead body of Malkiat Singh and sent it for postmortem examination on August 18, 1984. On receipt of the report of  the  postmortem  examination  and  completion  of investigation P.W.5 submitted charge-sheet.      The  appellants  pleaded  not  guilty  to  the  charges levelled against  them and their version of the incident, as can be  gathered from the trend of cross-examination and the suggestions put  to P.W.4,  was that Gurnam Singh had opened the outlet  in question  as it was his turn to take water of the canal  through it,  to which Nachhatar Singh and Malkiat Singh objected  and both  of them assaulted him. In exercise of his  right of  private defence  he then assaulted Malkiat Singh and Nachhatar Singh.      That Malkiat Singh met with his death owing to injuries sustained on August 10, 1984, as alleged by the prosecution, stands conclusively  proved by  the  evidence  of  Dr.  T.C. Aggarwal (P.W.1)  who  examined  him  in  the  Bagha  Purana Hospital on  that day at 6.15 P.M. and that or Dr. J.S. Lama (P.W.2), who  held post  mortem examination on his dead body on August 18, 1984. According to P.W.1 Malkiat Singh had the following injuries on his person:      "1.  Incised     wound      on     right      parietotemporal  region   measuring  5.5      cms. x  1.5 cms. bone deep with profused      bleeding.      2.   Incised  wound   on  left  temporal      region measuring 1.5 cms. x 0.25 cm x .5      cm.      3.   Incised wound  on the left eye brow      measuring 1 cm. x 0.25 cm. skin deep.      4.   Lacerated wound  on the  face below      and lateral  to left  eye measuring  0.5      cm. x 0.5 cm.      5.   Abrasion on the left hand measuring      2 cms. x 2 cms."      P.W.1 opined  that injury  Nos. 1,  2 and  3  could  be caused by a sharp edged weapon while the other injuries by a blunt weapon.  He further  opined that injury No. 1 could be caused by  a kassi  and injury  No.2  by  a  gandasa.  P.W.2 corroborated the  evidence of  P.W.1 regarding  the external injuries found  on the  person of  Malkiat Singh and further stated that  there were  fractures of anterior cranial fossa and middle  cranial fossa  on the right side. He opined that the death  was the  result of injury No.1, namely, the wound on the  right temporal  region. Indeed,  this  part  of  the prosecution  case   was  not  seriously  challenged  by  the defence; on the contrary, as noticed earlier, the appellants took the plea of right of private defence.      To prove  the authorship  of the  crime the prosecution rested its  case principally  upon the ocular version of the incident as  given out  by Nachhatar Singh (P.W.4). Besides, it pressed  into service the statement of Malkiat Singh (the

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deceased)  recorded   by  the  Investigating  Officer  under Section 161  Cr.P.C., (Ext. P/15) which, consequent upon his death due  to the injuries sustained in the incident, became admissible in  evidence  as  his  dying  declaration.  P.W.4 detailed the entire prosecution case including the manner in which he  sustained the  injuries. Though  P.W.4  was  cross examined  at   length  nothing  could  be  elicited  by  the appellants from  which it  can be even remotely said that he is unworthy  of credit.  On the  contrary  his  evidence  as regards the  nature of  assault on  Malkiat Singh gets ample support from  the medical  evidence which  we have discussed earlier. That  P.W.4 sustained  injuries in  course  of  the incident as  claimed by  him  also  gets  support  from  the evidence of  P.W.1 when  he stated that he found a lacerated wound as  also an incised wound on his person. While on this point it  will be  pertinent to  mention that the suggestion put to  P.W.4 on  behalf of  the appellants  which  we  have noticed earlier  corroborates his claim as an eye-witness to the incident.  Another circumstance which corroborates P.W.4 is the  prompt lodging of the F.I.F detailing the substratum of the prosecution case.      It  was,   however,  contended   by  Mr.  Sushil  Kumar appearing on  behalf of  the appellants  that in  the F.I.R. that he  lodged P.W.4  did not disclose the fact that Gurnam Singh had  sustained injuries  in  the  incident  much  less explained those  injuries. Consequently,  he submitted, P.W. 4’s belated claim that on being assaulted he and his brother Malkiat Singh  retaliated in  exercise  of  their  right  of private defence  to explain  away the injuries on the person of Gurnam  Singh should  not be  accepted. For the foregoing reasons the  learned counsel  for the appellants asked us to hold that  there  was  no  reasonable  explanation  for  the injuries sustained  by the appellant Gurnam Singh which made the evidence of the sole eye-witness, namely, P.W.4 suspect. We do  not find any merit in this contention. The obligation of the  prosecution to  give an explanation for the injuries sustained by  an accused  in a  case of assault, if need be, comes only  at the  stage of the trial and therefore absence of such explanation in the F.I.R. would not by itself affect the prosecution case. It was next contended on behalf of the appellants that  having regard  to the  nature  of  injuries sustained by  Gurnam Singh  it must  be held  that a case of right of  private defence  as contended by him was made out. The evidence  of P.W.1 no doubt proves that Gurnam Singh had sustained two abrasions, a contusion and an incised wound on his forehead  but then the the explanation offered by P.W.4, in the  absence of  any material  in support of the claim of Gurnam Singh  as to  how he sustained those injuries must be accepted. In  other words,  the evidence  on record  clearly establishes that  the appellants  were the  aggressors  and, therefore, the  deceased and P.W.4 were justified to assault Gurnam Singh  in exercise of their right of private defence. Since we  find the  evidence of  P.W.4 to be wholly reliable upon we  need not  go into  the probative value of the dying declaration.      Now that  it stands established that the two appellants caused injury  Nos. 1, 2 and 3 on the person of the deceased with kassi  and gandasa  and the injury No. 1 was sufficient in the  ordinary course  of nature  to cause  death the only other question  that requires  to be  decided is whether the offence committed by the appellants, in furtherance of their common intention,  falls under  Section 302 or under Section 304 (Part  I) I.P.C.  The answer to this question is not far to seek  for the  evidence of  P.W.4 clearly  shows that the incident took  place in  course of a sudden quarrel over the

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opening of  the outlet  and therefore  the appellants can be said to have committed an offence under Section 304 (Part I) I.P.C. and not under Section 302 I.P.C.      For  the   foregoing  discussion   we  set   aside  the conviction and  sentence of  the appellants  recorded  under Section 32-3 I.P.C. and convict them under Section 304 (Part I)/34 I.P.C  For the  altered conviction we sentence each of them to  suffer rigorous  imprisonment for  seven years. The appellants, who  are on  bail, will  now surrender  to their bail bonds to serve out the sentence.      The appeal is thus disposed of.