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CASE NO.: Appeal (crl.)  713-714 of 2004

PETITIONER: Balbir Singh, etc.                                               

RESPONDENT: State of Punjab, etc.                                    

DATE OF JUDGMENT: 03/03/2005

BENCH: K.G. Balakrishnan & B.N. Srikrishna  

JUDGMENT: J U D G M E N T WITH

CRIMINAL APPEAL NOS. 776-777 OF 2004

K.G. BALAKRISHNAN, J.   

       The Additional Sessions Judge, Bhatinda, tried four accused for  the offences punishable under Section 302 read with Section 34 IPC.    Initially, the final report filed by the police was against five accused,  but one of the accused was discharged.  The Sessions Judge acquitted  all the four accused.   The State of Punjab filed a criminal appeal  against the acquittal of the accused persons and the de-facto  complainant filed a revision challenging the acquittal.   The appeal and  the revision were considered by the High Court and the Division Bench  found all the four accused guilty of the offences punishable under  Section 302 read with Section 34 IPC and each one of them was  sentenced to undergo imprisonment for life and to pay a fine of  Rs.2,000/-, with a default sentence of six months further  imprisonment.   Aggrieved  by the findings of the High Court,  A-2 and  A-3 have filed Criminal Appeal Nos. 776-777 of 2004 and the fourth  accused,  Balbir  Singh has filed Criminal Appeal Nos. 713-714 of  2004.   During the pendency  of the appeal before the High Court, the  first accused, Gorkha Singh passed away.

       The incident giving rise to  these appeals happened on  1.10.1993 at about 9.30 AM.     Deceased  Tara Singh  had purchased  an  agricultural  field in  village  Kailey  Bander  from one  Gurdial   Kaur in 1990  and  since  then he had been cultivating that land with  the help of his sons, PW-2 Badal Singh, Gurdev Singh  and Harpal  Singh.   According to the prosecution, the appellants herein expected   to inherit the property owned by  Gurdial Kaur  on her death and the  purchase of the property by Tara Singh was resented to by them and  they bore a grudge against him.  On the date of the incident, PW-2  Badal Singh and his father deceased Tara Singh were coming back  from the field.   PW-3 Jaswinder Kaur, the daughter-in-law of deceased  Tara Singh was also in the near vicinity.  When Tara Singh reached  near the field of one  Mithu Singh, the four appellants, namely,  Sikander Singh, Gora Singh, Gorkha Singh and Balbir Singh emerged  from the nearby field and Gora Singh told that Tara Singh  must be  taught a lesson.   Sikander Singh,  threw away his ’Sotti’  (wooden  stick) and caught hold of Tara Singh.   The turban of Tara Singh fell  down  whereupon  Gorkha Singh, who was armed  with a ’kulhari’  (axe) gave a blow on the left side of the head of Tara Singh.   Gora  Singh, who was  armed with an axe, also hit  Tara Singh on the right  side of his head.   Balbir Singh also gave two blows to Tara Singh with   a  ’Ghope’ (pointed rod).  PW-2 Badal Singh and PW-3 Jaswinder Kaur

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cried out, but the appellants continued to give blows to Tara Singh,  who fell on the ground and died.    PW-2 Badal Singh left  PW-3  Jaswinder Kaur near the dead body of his father and went to  meet the  Sarpanch of village Kailey Bander.    The  Sarpanch  was not   available, so PW-2 reported  the incident to his brother,  Bhag Singh.      He had also met Chowkidar Banta Singh.    It may  be noticed that  Tara Singh was formerly a permanent resident of village Virk Khurd  and only after the purchase of the property from Guardial Kaur he had  come down and settled near the agricultural field.    PW-2 Badal Singh  then proceeded to his village Vir Khurd and met Jaswant Singh, the  elder brother of his father and along with him he went to the police  station and gave the First Information  Report.

       The Asstt. Sub-Inspector Bhajan Singh PW-5 took over the  investigation and reached the place of incident.   He recovered the  turban and shoes worn by deceased Tara Singh and some blood- stained soil from the place of  incident.  He  held inquest over the dead  body and sent the same for post-mortem examination through the   Head Constable.   There were as many as  thirteen injuries on the  body of deceased Tara Singh.  PW-1 Dr.  Kulbir Singh, who conducted  the  post-mortem deposed  that  injury no. 11  was  fatal  and   the  two horizontal bruises measuring 15 x 2 cms had corresponding  internal injury and the seventh and the eighth ribs of deceased Tara  Singh  were fractured and  the  fractured ribs had pierced  the lung  tissue.  According to him,  the death  was due to hemorrhage and  shock.   

During their examination under Section 313 of the Criminal  Procedure Code, the accused set up a very curious plea to the effect  that they were falsely implicated and that deceased Tara Singh  was  attacked by two unknown persons and that DW-1  Gurjant Singh was a  witness to the incident and the accused examined Gurjant Singh as  DW-1.   He deposed that while he was sitting in his house, he heard an  alarm and when he reached the place,  he saw two persons causing  injuries to Tara Singh, but  he could not identify them.   He found Tara  Singh dead  on the spot and  went to inform his relations and he could  not meet anyone.  He came to know that Tara Singh was formerly a  resident of village Virk Khurd and proceeded to Virk Khurd in his car.     There he met PW-2  Badal Singh and then  they came back to Kailey  Bander.   PW-2 Badal Singh made consultation with Jaswant Singh and  gave the First Information statement to the police.

       The Sessions Judge, of course, did not accept the evidence of  DW-1,  but he acquitted the accused mainly for the reason that there  was inordinate delay in giving the First Information statement to the  police by PW-2 and as the witness could not satisfactorily give any  explanation, this was taken as a serious lapse on the part of the  prosecution.   Another reason given by the Sessions Judge was that  PW-2 Badal Singh could not have been present at the scene of  occurrence  as he did not make any attempt to save his father from  the assailants.    According to the Sessions Judge, had PW-2 been  present at the scene of occurrence, he would  have certainly   intervened  to save his father.     The Sessions Judge was also of the  view that there was no penetrating injury found  on the body  of the  deceased Tara Singh, although according to PW-2,  the accused had  given a piercing thrust  on the body of the deceased Tara Singh with a  ’Ghope’  and that there were contradictions between  the  medical  evidence and  the  oral evidence.

       The  High Court  reversed the findings of the Sessions Judge and  held that the delay in giving the  F.I.R. was of no consequence as it  was satisfactorily explained by PW-2.   The High Court was also of the  view that PW-2 being a young man could not have intervened in the  attack on his father as there were four assailants, who were armed.    According to  the High Court, the same could not be taken as a factor

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to disbelieve PW-2.  The High Court thus reversed the findings of the  Sessions Judge.

       We heard Shri Ranjit Kumar, learned  Senior Counsel for the  appellants and also the counsel for the State of Punjab.   The evidence  of PW-2 and PW-3 shows that the accused attacked the deceased with  various weapons.   The prosecution evidence shows that  deceased  Tara Singh and his family members were originally the residents of   village Virk Khurd.   They had  purchased the agricultural property in  question about three years  before the incident  and constructed a  hutment nearby and started living there.    When PW-2 saw the  ghastly incident of attack on his father by the assailants, he could not  seek the help of anybody from the village Kailey Bander where the  incident took place, probably because he had no acquaintance there.    He went in search of the Sarpanch of the village but could not meet  him and therefore he was constrained to go to his own village Virk  Khurd and met his father’s elder brother and then went to the police  station.     It cannot be said  that a  young person like PW-2 acted in  an unreasonable  manner.  The counsel for the appellants pointed  out  that two of his brothers were in the nearby field, but PW-2 did not  inform them.   As stated before, deceased Tara Singh  with his family  members had  come to village Kailey Bander three years before the  incident and probably they too may not have any acquaintances.    Therefore, it is quite probable that for this reason PW-2  chose to go to   the village Sarpanch.   The High Court  was fully correct in holding that   PW-2 cannot be  disbelieved for  not having intervened  in the melee  as there were four assailants who were armed with weapons.    In our  view, the High Court rightly reversed the findings of the Sessions  Judge.   The contention of the appellants counsel that there were  contradictions between the  medical evidence and oral evidence  also  is of not  much  consequence as the witness could not be in a position  to specifically  say as to which portion of the weapon was used when  there was a sudden attack by a group of persons.

       Coming to the nature of the offence committed by the  appellants, there is evidence to the effect  that the appellants only  wanted to teach a lesson to Tara Singh.   They  were  aggrieved by the  fact that  deceased Tara Singh had purchased the agricultural land   which they expected to get  from Gurdial Kaur.     Two of the  assailants were armed with axes,  but  they did  not use the sharp  edge of those  weapons and the injuries sustained by deceased Tara  Singh would  show that  there were no deep penetrating  injuries.    Most of the injuries  were of minor nature,  having possibly been   caused by the blunt edge of the weapon.   The doctor, who conducted  the post-mortem examination deposed that  injury  no. 11, namely,  two bruises on the back of  the  deceased Tara Singh fractured two of  his ribs.  The evidence of PW-2 and PW-3 clearly is to the effect that  it  was Sikander Singh who caused those injuries, which ultimately  proved fatal.   Two other injuries were caused by Gorkha Singh, the  first accused.    Appellants Gora Singh and Balbir Singh  are not  alleged to have caused  any fatal injury  to  the deceased Tara Singh.    Gora Singh,  though armed with a ’Kulhari’ (axe),  used the blunt  portion of that axe.   Sikandar Singh was armed with a  ’Sotti’  (wooden stick).    He caught hold of deceased Tara Singh to enable  other assailants to cause injury to  him and  Sikandar Singh himself  gave  ’Sotti’  blows on the back of the deceased which resulted  in  causing  fracture of the  ribs and, in turn, piercing of  the lung tissues  of the deceased Tara Singh.    There is no dispute  that these injuries  were caused on Tara Singh.    It  is clear that Sikandar Singh dealt the  fatal blows which ultimately resulted in the death of the deceased.   If  the entire prosecution evidence is considered in the background of the  so called motive alleged, it is very difficult to discern that these  appellants had any common intention to cause the death of the  deceased.   The  ’Sotti’  blows  dealt on the back of   deceased Tara  Singh  proved  fatal  causing fracture of ribs which pierced  his lung

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tissues.

       On careful analysis of the prosecution evidence and the role  played by each one of the appellants, we are of the view that the  evidence does not show that these appellants shared a common  intention to cause the death of the deceased.   However, appellant  Sikandar Singh caused  injuries  on  deceased Tara Singh which  proved to be fatal at the end.   The act committed by Sikandar Singh  would come within the offence punishable under Section 304 Part I IPC  as he could be attributed with the knowledge that the injury caused by  him is likely to cause death.  The grievous injuries caused by other  appellants, namely Gora Singh and Balbir Singh, would fall within the  mischief of Section 326 IPC.      In the result, we  set aside the conviction  and sentence of all  the appellants under Section 302 read with Section 34 IPC  and alter  the conviction of the appellants as follows:  Sikandar Singh is found  guilty of the offence punishable under Section 304 Part I IPC and he is  sentenced to  undergo imprisonment for a  period of seven years and  the other appellants, namely, Gora Singh  and Balbir Singh are found  guilty of the offence punishable under Section 326 IPC and sentenced  to imprisonment for a period of three years.    The appellants are  entitled to  set off the period of imprisonment already undergone by  them.    The appeals are accordingly disposed of.