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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.