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PETITIONER: BALBIR SINGH

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT16/08/1995

BENCH: NANAVATI G.T. (J) BENCH: NANAVATI G.T. (J) MUKHERJEE M.K. (J)

CITATION:  1995 SCC  Supl.  (3) 472 1995 SCALE  (4)764

ACT:

HEADNOTE:

JUDGMENT:                 THE 16TH DAY OF AUGUST, 1995 Present:           Hon’ble Mr. Justice M.K.Mukherjee           Hon’ble Mr. Justice G.T.Nanavati Mr. M.R.Sharma,  Sr. Adv.  Mr.  R.C.  Kohli,  and  Ms.  Bani Sharma, Advs. with him for the Appellant. Ms. Rupinder  Wasu, Adv.  for Mr.  R.S.Suri,  Adv.  for  the Respondent                       J U D G M E N T The following Judgment of the Court was delivered:                IN THE SUPREME COURT OF INDIA               CRIMINAL APPELLATE JURISDICTION               CRIMINAL APPEAL NO. 495 OF 1985 BALBIR SINGH V. THE STATE OF PUNJAB                       J U D G M E N T NANAVATI, J.      The appellant  along with three other accused was tried for an  offence  punishable  under  Section  302  read  with Section 34  I.P.C. in the Court of Additional Judge, Special Court, Amritsar.  The learned Additional Judge acquitted the other  three  accused  but  convicted  the  appellant  under Section 302 I.P.C.      The  charge   against  the   appellant  and  the  three acquitted accused  was that  on 19.3.1984 at about 6.00 P.M. when Rasal  Singh, Dalip  Singh, Mukhtiar  Singh  and  Amrik Singh were  returning from  their fields  the appellant  and three accused  assaulted Amrik  Singh. The  appellant gave a kirpan blow  to Amrik Singh on his head as a result of which Amrik Singh  fell down  and became  unconscious.  Two  lathi blows were  given by the other accused on his left leg. As a result of  the injuries  received by him Amrik Singh died on 21.3.1984.      Before the  Special Court  prosecution mainly relied on the evidence  of three  eye witnesses,  namely, P.W.9  Rasal

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Singh, P.W.10  Mukhtiar Singh  and P.W.11  Dalip Singh.  The learned Additional  Judge did  not rely upon the evidence of Mukhtiar Singh  but relying  upon the  evidence of the other two eye  witnesses and  the medical evidence he held that it was proved beyond any doubt that the appellant gave a kirpan blow on  the head  of Amrik  Singh and  as a  result of that injury Amrik Singh died. In view of the delay in lodging the F.I.R. the  learned Additional  Judge held  that there was a possibility of implicating the other three accused, who are, the father,  brother and friend of the appellant even though they had  not taken  any part  in the  incident. These three accused were, therefore, acquitted.      What is  urged by the learned counsel for the appellant is that  the learned Additional Judge having disbelieved the two eye  witnesses as regards the other accused ought not to have convicted  the appellant on the basis of their evidence without independent  corroboration. As  stated  earlier  the lower court  gave benefit of doubt to those accused as there was some  delay in lodging the F.I.R. The incident had taken place some  time after  6.00 P.M.  at village  Virum but the F.I.R. was  lodged at Khalra police station at 2.00 P.M. The evidence discloses that condition of Amrik Singh was serious and, therefore,  he was taken to the Rural Hospital at Algon as the  doctor in  charge of  that hospital  was known to be very competent.  The evidence  also discloses  that  village Algon is  at a  distance of  8 to 9 miles from Village Virum and that  Rasal  Singh  and  Amrik  Singh  had  reached  the hospital at  about 9.00  P.M. The doctor became available at about midnight  and actual  medical treatment of Amrik Singh started at  about 3.00  A.M. Dr.  Kuldip Singh Sodhi (P.W.7) was the  only doctor  available in that hospital as no other doctor was  posted there  at that  time.  Dr.  Kuldip  Singh prepared the  medico legal report in the morning and sent it to Khalra  police station.  It was received by ASI Pal Singh (P.W.13) who  after making  an entry  in Roznamcha, left for the hospital at Village Algon, where he reached at 1.35 P.M. He first  tried to  record statement  of Amrik Singh but the doctor informed  him that  he was  not in a fit condition to make a statement. He, therefore, recorded statement of Rasal Singh and  sent it to the police station for registration of the offence.  It, therefore,  cannot be  said that  delay in registering  the  offence  was  for  some  ulterior  motive. Moreover, apart  from the injury on his head Amrik Singh had two abrasions  on his  leg and  they were  possible by stick blows according to the medical evidence.      Therefore, the  evidence  of  the  two  eye  witnesses, cannot be  said to  be unreliable  merely because  the trial court did  not think  it safe  to convict  the  other  three accused on the basis of their evidence and gave them benefit of doubt. We have carefully gone through the evidence of the two   eye-witnesses and we do not find any serious infirmity in   their    evidence   as    would   require   independent corroboration.      It was  next contended  that in  any case  it  was  not proper to convict the appellant under Section 302 I.P.C. The contention deserves  to be  accepted. This was not a case of premeditation as  the accused and the deceased met by chance and the  appellant had  given only  one blow.  The  evidence regarding raising  of a Lalkara by the other accused has not been believed  by the  trial court.  On  the  basis  of  the evidence led  in this  case it  is not  possible to say with certainty under  which circumstances  the appellant  gave  a kirpan blow  to Amrik  Singh. No  attempt was made by him to give another  blow. The  injury caused  on the head of Amrik Singh does  not appear  to have  been caused  intentionally.

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Therefore, in  view of  the facts  and circumstances of this case we are of the opinion that the lower court committed an error in  convicting the  appellant under  Section  302.  He should  have   been  convicted  under  Section  304  Part  I Therefore, we  alter the  conviction of  the appellant  from Section 302 I.P.C. to Section 304 Part I I.P.C. The sentence of R.I.  for life  is set aside and instead he is ordered to suffer R.I.  for 10  years. This  appeal is  allowed to  the aforesaid extent. As the appellant has been released on bail he is  ordered to surrender to his bail bond, so as to serve out the sentence imposed upon him.