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CASE NO.: Appeal (crl.)  621 of 2006

PETITIONER: Balwant Singh and others

RESPONDENT: State of Punjab

DATE OF JUDGMENT: 06/02/2008

BENCH: P. P. Naolekar & Markandey Katju

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 621 OF 2006

MARKANDEY KATJU, J.

1.      This appeal has been filed against the impugned judgment of the  Punjab & Haryana High Court dated 4.5.2005 in Criminal Appeal No. 636- DB of 2002.

2.      Heard learned counsel for the parties and perused the record.

3.      The appellants are one Balwant Singh and his three sons Balwinder  Singh, Harbans Singh and Malkiat Singh.  They were convicted under  section 302 and other provisions of the Indian Penal Code by the Additional  Sessions Judge, Bathinda on 30.7.2002.  Against that judgment they filed an  appeal in the High Court which was dismissed and hence this appeal.   4.      The prosecution case is that on 17.7.1998 at about 10/10-30 A.M.,  Bharpur Kaur(PW1) wife of Jarnail Singh r/o village Khokhar, Police station  Kalawali had along with her sons Vakil Singh, Gurjant Singh  and  Nachhattar Singh gone to village Gill Patti, Bathinda to meet her sister’s  daughter Amarjit Kaur (PW-3), who was at that time residing in street No. 6,  Janta Nagar, Bathinda.  From there along with Amarjit Kaur and her son  Kuldeep Singh alias Gurtej Singh they had gone to the house of Amarjit  Kaur in village Gill Patti.  When they alighted from the jeep in front of the  house of Amarjit Kaur, they found the appellants Balwant Singh and his  sons Harbans Singh, Malkiat Singh and Balwinder Singh armed with kirpans  and gandasas sitting in the Deodi of the house of Natha Singh son of Wazir  Singh.  Amarjit Kaur along with Gurjant Singh and Nachhattar Singh left the  house to bring milk and vegetable while Bharpur Kaur PW1, deceased  Kuldeep Singh and Vakil Singh remained in thehouse.   In the mean time,  Balwant Singh and his son Harbans Singh armed with swords and Malkiat  Singh and Balwinder Singh armed with gandasas and Natha Singh empty  handed trespassed into Amrit Kaur’s house.  Natha Singh allegedly raised a  lalkara "Inna Noo Jaggar Singh Noo Katai Karan Atte Ghar To Kabza Karan  Da Maja Chakhaounde Haan, Ajj Ahe Bach Ke Na Jaan".  Thereupon,  Kuldeep Singh and Vakil Singh sons of Bharpur Kaur tried to go out of the  house in order to save themselves but Harbans Singh gave a blow with the  kirpan on the left side of the forehead and on the head of Kuldeep Singh, as  a result of which he fell down on the ground.  Thereafter, Balwant Singh  gave a kirpan blow which resulted in infliction of injury on his right ear.   Malkiat Singh gave a gandasa blow from its reverse side on the right cheek  and ear of Kuldeep Singh.  When Bharpur Kaur PW1 intervened to save  Kuldeep Singh, Balwinder Singh and Malkiat Singh gave gandasa blow  from reverse side, which resulted in injuries on her left wrist joint, left knee  joint and nose.  Vakil Singh raised a shout "Na Maro Na Maro" whereupon

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Malkiat Singh and Balwinder Singh gave gandasa blows on the person of  Kuldeep Singh on his right and left thigh and below the knee joint when he  was lying on the ground.  In the meantime, Amarjit Kaur, mother of the  deceased Kuldeep Singh, Gurjant Singh and Nachhattar Singh returned to  the scene of occurrence and they also raised an alarm on hearing which the  assailants fled away from the spot taking their respective weapons with  them.   Kuldeep Singh succumbed to the injuries.   

5.      Bharpur Kaur PW1 proceeded for the Police Station and on the way  met SI Chand Singh SHO of Police Station Sadar, Bathinda, who was  present at Aeroplane Chowk, Bathinda where he had set up a Naka for  special checking of vehicles and got reduced her statement into writing.  On  the basis of the statement, which was completed at 12.30 PM on 17.7.1998,  a formal FIR Ex PA/2 was recorded in Police Station Thermal Bathinda at  12.45PM on the same day.  He himself proceeded to the spot where he  prepared inquest report and during the investigation took into possession  blood stained earth vide recovery memo Ex PR, recorded the statements of  the witnesses and forwarded the dead body to Civil Hospital, Bathinda  through Constable Joginder Singh along with request for Post Mortem  Examination Ex PE.  On 18.7.1998 he took into possession clothes of the  deceased, which were handed over to him by Constable Joginder Singh.   

6.      On 21.7.1998 he arrested Balwant Singh and Malkiat Singh, who  made disclosure statements pursuant whereof the Kirpan Ex P12 and  gandasa Ex P13 were taken into possession through recovery memo Ex PU/2  and Ex PU/3.  Harbans Singh and Balwinder Singh were apprehended on  22.7.1998 and they too made disclosure statements Ex PU/4 and Ex PU/5  respectively pursuant whereof Kirpan Ex P/14 and gandasa Ex P/15  respectively were taken into possession vide recovery memo Ex P/6 and Ex  PU/7 respectively.  Balwant Singh and Malkiat Singh, appellants made  separate disclosure statements Ex PU/16 and Ex PU/17 pursuant whereof  their shirts Ex P/16 and Ex P/17 which were blood stained were taken into  possession through recovery memos Ex PU/18 and Ex PU/19 respectively.   The same were forwarded to the Chemical Examiner for examination and on  receipt of the report of Chemical Examiner, the challan was put in Court  against the appellants before the Illaqa Magistrate, who upon finding that the  offences disclosed were exclusively triable by the Courts of Sessions,  committed the same to the Court of Sessions for trial.

7.      The incident in question occurred on 17.7.1998 at 10.30 AM and the  FIR was filed at 12.45 PM. Hence there was no delay in filing the FIR.

8.      Learned counsel for the appellants submitted that PW1 Bharpur Kaur   who lodged the FIR turned hostile as is evident from her statement in court  on 28.2.2000. PW2 Gurjant Singh also turned hostile.  Hence we are left  only with the testimony of PW3 Amarjit Kaur and PW8 Sukhjit Kaur.  We  have, therefore, to see whether conviction on their testimonies would be  safe.

9.      We have carefully gone through the testimony of these two witnesses  and we see no reason to disbelieve the same, especially since they broadly  corroborate each other.   Amarjit Kaur stated in her evidence that Bharpur  Kaur and her son came to her house in Janta Nagar, Bathinda in a rented  jeep and there she and her son Kuldeep Singh (deceased) accompanied  them  in the jeep and they went to village Gill Patti, where also Amarjit Kaur has a  house.  The jeep was parked near the house of Amarjit Kaur  where they saw  all the accused persons sitting in the Deodi of Natgha Singh.  Balwant Singh  and Harbans Singh accused were armed with kirpan and Balwinder Singh  and Malkiat Singh were armed with gandasa.  Amarjit Kaur, Gurjant Singh  and Nachattar Singh went out to purchase vegetables while Kuldeep Singh,  Bharpur Kaur and her son Vakil Singh remained present in the house of  Amarjit Kaur.  When Amarjit Kaur and two others returned to the house at  10 or 10.30 AM they saw her son Kuldeep Singh lying on the ground.  In  their view Balwinder Singh gave gandasa blow on the leg of deceased  Kuldeep Singh  and Malkiat Singh gave a gandasa blow from its blunt side

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in his abdomen.  All the accused gave thrust blows as well as kick blows to  her son Kuldeep Singh.  The motive behind the occurrence was said to be  the desire to usurp the property of Amarjit Kaur by killing her son.

10.     Learned counsel for the appellant submitted that from the evidence of  Amarjit Kaur  it appears that she only saw Balwinder Singh giving a gandasa  blow on the leg of Kuldeep Singh and Malkiat Singh giving a gandasa blow  from the blunt side in his abdomen.  From this evidence learned counsel for  the appellant has tried to infer that Amarjit Kaur did not see the main  incident in which the fatal injuries were caused. These fatal injuries are  mentioned in the evidence of the doctor who conducted the post mortem.   The doctor mentioned the following injuries :

1.      Lacerated wound present on frontal region of head  10 x 5 cm underlying bone was fractured.  Brain  matter exposed.  On dissection multiple fracture  were present pieces of the bone were present in the  brain matter. Haemotoma was present on frontal  region of head.

       2.      Fracture of mandible evident. 3.      Incised wound 4 xm x 3 cm on right ear and back  of head.  Loss of part of right ear.  On dissection  underlying bone fractured. Haemotoma was  present.

4.      Incise wound 4 cm x 2 cm on frontal region of  lower leg on right side.  Underlying bone  fractured.  Clotted blood present. Multiple  abrasions on right leg.

       5.      Multiple abrasion on right arm. 6.      Bruise 8 cm x 4 cm lower abdomen below  umbilicus.

       7.      Bruise 4 cm x 3cm on left writ joint.        11.     Thus it appears that there were three injuries on the head of Kuldeep  Singh.  It may be that Amarjit Kaur was not present when these injuries were  caused to Kuldeep Singh, but in our opinion there is strong circumstantial  evidence that they were caused by the accused.  In our opinion this  circumstantial evidence is sufficient to uphold the conviction because it  contains all the links in the chain which connect the accused with the  incident. These links are :

(a)     The accused persons were present with deadly weapons near  the house of Amarjit Kaur.  When persons come armed with deadly  weapons to someone’s house, it is a strong circumstance to indicate  that they had came with deadly intentions.                     (b)     When Amarjit Kaur and others returned to the house at 10 or  10.30 AM, they saw Balwinder Singh giving gandasa blow to her son  on the right leg and Malkiat Singh giving gandasa blow from the blunt  side of gandasa in his abdomen.  These blows were evidently given  after the fatal injuries on the head of Kuldeep Singh.  

(c)     All the accused thereafter gave thrust blows as well as kick  blows to Kuldeep Singh who was lying on the ground.  Hitting and  kicking an injured man who is already lying on the ground shows the  deadly intent of the accused.

(d)     There was no one else other than the accused who is said to  have been on the spot at the time of the incident.    

12.     The evidence of Amarjit Kaur has been corroborated by the evidence

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of the doctor and PW8 and we see no reason to disbelieve their evidence  also.  PW8 Sukhjit Kaur has stated in her evidence that she saw the accused  armed with kirpans and gandasas going towards the house of her father  Jaggar Singh (deceased husband of Amarjit).  From this an inference can be  drawn that the accused armed with weapons were going with deadly  intentions towards the house.  Sukhjit Kaur PW8 also stated that when they  came back after 30 to 45 minutes they were armed with the same weapons  with blood stains and the clothes also had blood stains which they later  changed and ran away.  This evidence of Sukhjit Kaur corroborates the  evidence of Amarjit Kaur, though it is true that neither saw the main incident  in which the fatal injuries were caused.  However, as already stated above,  there is strong circumstantial evidence to connect the accused with the  crime.

13.     Learned counsel for the appellant  then submitted that it is not clear  which of the accused caused which particular injury.  In our opinion that will  not matter because section 34 IPC is clearly attracted to the facts of the case.   When persons go together armed with deadly weapons and fatal injuries are  caused to the deceased, all of them are equally liable in view of section 34  IPC.

14.     In view of the above, there is no merit in this appeal.  The appeal is  accordingly dismissed.