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PETITIONER: CHARAN SINGH ETC., LAKHA SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB, STATE OF PUNJAB

DATE OF JUDGMENT:       24/10/1997

BENCH: G.T. NANAVATI, S.P. KURDKUR

ACT:

HEADNOTE:

JUDGMENT:                  THE 24TH OF OCTOBER, 1997 Present:               Honb’le mr. Justice G.T. Nanavati               Honb’le Mr. Justice S.P.Kurdukar U.R.Lalit, Sr.Adv.  AND S.K.Gambhir,  Adv. with  him for the appellants P.S. Sodhi, Adv. for the Respondent                       J U D G M E N T      The following Judgment of the court was delivered:                             WITH                CRIMINAL APPEAL NO. 62 OF 1988 S.P.KURDUKAR, J.      Both the  appellant in  these two criminal appeals were put up  for trial  before the Sessions Court, Sangrur for an offence punishable  under Section  302/34 IPC for committing the murder  of  Karamjeet  Singh.    The  Session  Court  on conclusion of  the trial by its judgment and order dated May 30, 1986,  convicted Lakha  Singh (A-1)  (appellant in  Crl. Appeal No.  62  of  1988)  under  for  life,  but,  however, acquitted Charan  Singh (A-2)  (appellant in Crl. Appeal No, 612 of 1988).  The State of Punjab aggrieved by the order of acquittal of Charan Singh (A-2) filed criminal appeal before the High  Court of  Punjab &  Haryana at  Chandigarh.    The convicted accused  Lakha Singh  (A-1) also  filed the appeal challenging his  order of conviction and sentence before the said High  Court.   Both the appeals were heard together and the High  Court by  its judgment  and order dated August 24, 1987 allowed  the criminal  appeal filed  by the State and s aside the  order of  acquittal of  Charan  Singh  (A-2)  and convicted him  under Section No 302/34 IPC and sentenced him to suffer  imprisonment fro life.  The appeal filed by Lakha Singh (a-1)  was dismissed.  It is against this judgment and order of conviction passed by the High Court, the appellants have filed  these two  separate  criminal  appeals  to  this Court.   Criminal Appeal  No. 62 of 1988 is by Special Leave whereas Criminal  Appeal No.  61  of  1988  is  a  statutory appeal. 2.   Both these  appeals arise  out of  common judgment and, therefore, they are being disposed by this judgment. 3.   The prosecution case in nut shell was as under:-

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Karamjeet Singh  (since deceased) had advanced a loan of Rs.      100/- to  Lakha Singh (A-1) but he failed to return the said amount.  Or 14th August, 1985, Karamjeet Singh demanded the said  amount from  A-1, but  he refused  to pay the same and, therefore, Karamjeet Singh gave a slap to him. 4.   On 15th August, 1985, Karamjeet Singh along with Balbir Singh, a  member of  Panchayat and Balbir Singh @ Leela (for clarity referred  to as Leela Singh) were going to the field of Leela Singh by the side of drain.  When they reached near the sugar  cane field  of Dial  Singh, A-1  and A-2 who were hiding in  the sugar  cane crop  emerged from the said field and they  were carrying gandasas with them.  A-1 then gave a lalkara saying  that they  will teach  lesson  to  Karamjeet Singh for  slapping him  on the  previous day.   A-1 and A-2 also gave  a gandasa blow on the right shoulder of Karamjeet Singh.   After sustaining bleeding injuries, Karamjeet Singh fell blow  on the  ground and  thereafter A-1  again gave  a Gandasa blow  near his  right ear.  Balbir Singh  (PW 3) and Leela Singh  (PW 4)  seeing the  ghastly attack on Karamjeet Singh requested  the accused  not to  cause any  assault  on Karamjeet Singh.   They  raised an  alarm and thereafter A-1 and A-2  fled away.   Balbir  Singh (PW  3) then went to the village and  informed Niranjan Singh (PW 8), a Lumberdar and also to  the wife  of Karamjeet  Singh.  Balbir Singh (PW 3) then went  to the  police station  at Dhuri along with Rulda Singh, the  brother of Karamjeet Singh and lodged the report (Ex. PF)  at about  2.15 p.m.  on the same day.  The copy of the First  Information Report  was forwarded and received by Illaqa Magistrate, Dhuri at 2.30 p.m. ST Ajmer Singh (PW 10) proceeded towards  the scene  of offence.  After holding the inquest on  the dead  body of Karamjeet Singh, it was set to the Civil  Hospital, Dhuri  for post mortem examination. Dr. N.C. Garg  (PW 1)  opined that  it was due to the cumulative effective of  injury Nos. 1 and 2 leading to the haemorrhage and shock  which were  sufficient in  the ordinary course of nature to  cause death.  In the meantime, SI Ajmer Singh (PW 10) completed  the necessary  investigation  and  filed  the charge sheet  against A_!  AND A-2  for  offence  punishable under Section 302/34 IPC. 5.   The appellants denied the charges levelled against them and pleaded  that they  have been  falsely implicated in the present crime.   The prosecution witnesses were telling lies against them being interested in the deceased.  They pleaded that they be acquitted. 6.   The prosecution  examined two  eye  witnesses,  namely, Balbir Singh  (PW 3)  and Leela  Sing (PW  4) who claimed to have seen  the entire  occurrence.  In addition thereto, the prosecution placed  reliance upon  the evidence  of Niranian Singh (PW 8), a Lumberdar who prepared the complaint and the evidence of  Dr. N.C.  Garg (PW  1) to  prove the  cause  of death.  The prosecution had also relied upon the evidence of panch witnesses  relating to  the recovery  of incriminating articles and the panchanama of the scene of occurrence.  The appellants also  examined Nachhatar  Singh (DW  1)  and  Lal Singh (DW 2) to prove the mortgage transaction between Leela Singh (PW  4) and Nachhatar Singh (DW 1). Ajmer Singh (DW 3) was the draftsman who prepared the plan (Ex. DG).  Harbhajan Singh (DW  4) was working as SHO at Police Station, Dhuri at the relevant  time.  He was examined to prove the entries in the register  kept in the police station relating to the bad character of Karamjeet Singh. 7.   It is  not and  cannot be disputed that Karamjeet Singh died a  homicidal death.   Fr. N.C.Garg (PW 1) who performed the autopsy  on the  dead body  of Karamjeet Singh noted the following three injuries:-

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    1. Incised  would 18  cm x  2 cm  x      cutting  the  underlying  bone  and      brain matter  coming out  of  right      temporal region  6  cm  from  outer      can-thus of  right  eye  and  going      backwards  just   above  the  right      pinna.      2. Incised  wound  10  cm  x  2  cm      cutting the  underlying none on the      right cheek 7 cm from outer canthus      of right  eye and cutting the pinna      and mastoid bone.      3. Incised would 3 cm x 1 cm on the      back of  right shoulder  6 cm  from      top of back of shoulder cutting the      bone.      Dr. N.C.Garg  (PW 1)  testified that all these injuries were ante  mortem and  injuries nos. 1 and 2 were sufficient in the  ordinary course  of nature to cause death.  Both the courts below  accepted the  evidence of  Dr. N.C. Garg (PW ) relating to  the injuries  as well as the cause of death and we see  no reason  to differ  from  the  said  finding.  We, therefore, conclude  that Karamjeet  Singh died  a homicidal death. 8.   The trial  court accepted the evidence of Balbir Singh, (PW 3)  and Leela  Singh (PW  4) as trustworthy as far as it related to  the complicity of A-1.  Injury Nos. 1 and 2 were attributed  to  A-1  and  since  both  these  injuries  were cumulatively sufficient  to cause  the  death  of  Karamjeet Singh, the  learned trial  judge convicted A-1 under Section 302 IPC  simplicitor for  committing the murder of Karamjeet Singh.   The trial  court, however,  acquitted A-2  and  the reasons thereof  are found  in paragraph  26  which  are  as under:- (i)  He had  no motive  to commit  the murder  of  Karamjeet Singh. (ii) He was  not at  all in any way aggrieved by the conduct of Karamjeet Singh nor he had any association with A-1 so as to joint the latter in commission of the present crime. (iii)     The witnesses  failed  to  disclose  how  A-1  was connected with A-2 or both of them belonged to one party. (iv) The evidence  of eye witnesses as regards the injury on the shoulder  did not  find corroboration  from the  medical evidence.   All the  three injuries  on Karamjeet Singh were possible with one weapon. (v)  The gandasa which was alleged to have been recovered at the instance  of A-2 was not proved to be stained with human blood. (vi) Niranjan Singh  (PW 8)  did not state in the complain t that A-2 was the other accused along with A-1.      Relying upon  these circumstances, the trial court gave benefit of doubt and acquitted A-2. 9.   The High  Court while  upsetting the order of acquittal of A-2  had pointed  out  how  none  of  these  grounds  was sustainable inasmuch as the presence and participation of A- 2 was  proved beyond  reasonable doubt in the present crime. The  evidence  of  Fr.  N.C.Garg  (PW  1)  corroborated  the evidence of  these two  eye witnesses  as regards  the third injury though  there was  some minor  error  in  respect  of placement of the same.  The evidence of two ye witnesses did not suffer  from any  infirmity and it proved the complicity of A-2 and the common intention shared by him in the present crime along  with A-1.   Consistent with these findings, the High Court set aside the order of acquittal and convicted A- 2 under  Section 302/34 IPC.  As regards A-1, the High Court

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confirmed the order of conviction and sentence passed by the trial court. 10.  It was contended on behalf of the appellants that Leeal Singh (PW  4) had  mortgaged his  land  with  possession  to Nachhatar Singh  and if  it was so, there was no need either for Leela  singh (PW  4) or  others to  go to the said land. The claim  of the  two eye  witnesses that  they were  going together to  the mortgaged land was totally unbelievable and if this be so, the presence of Balbir Singh (PW 3) and Leela Singh (PW  4) at  the time  of occurrence  was totally ruled out.  We do not see any substance in this contention because both the eye witnesses testified that they were going to the mortgaged land  to make  a request  to  Nachhatar  Singh  to advance some more money.  Both the courts below accepted the prosecution story  in this behalf.  We have gone through the evidence of  both these  eye witnesses and we do not see any reason to upset the finding recorded by the courts below. 11.  It was  then urged  that both  these eye witnesses were chance witnesses  and in the absence of any corroboration to their evidence,  it would  not be  safe to  accept the  said evidence as truthful.  This submission again did not impress us. 12.  It was  then contended on behalf of the appellants that the motive  sought to  be relied upon by the prosecution did not find  corroboration from  any other  evidence on  record and, therefore,  there was  no reason  for the appellants to commit the  present crime.   We  find no  substance in  this contention because  in the complaint lodged on the very same day at  2.15 p.m.  did mention  the fact  that A-1  raised a lalkara saying ".....to teach you a lesson for slapping last night." Both the eye witnesses in their substantive evidence in court  had testified  that Karamjeet  Singh had told them that on  the previous  night, he  gave a  slap to  A-1 as he refused to  return Rs. 100/- which he had taken on loan.  It is true  that there  is omission which is brought on  record in this  regard but  the very  intripsic evidence in the FIR corroborated the  evidence of Balbir Singh (PW 3) who lodged the same.   The  Courts below  have accepted the evidence of these two  witnesses on the question of motive and we see no reason to differ from the said finding. 13.  It was  then contended  that there was delay in lodging the first  information report  as the  same was lodged after concocting a false story against the appellants.  We are not impressed  by   this  submission  because  the  incident  in question took  place at 12.30 p.m. and the FIR was lodged at 2.15 p.m.  after  travelling  a  distance  of  seven  miles. Hence, there  was no  delay in lodging the First Information Report. 14.  After  scrutinizing  the  evidence  of  these  two  eye witnesses, we are satisfied that so far as A-1 is concerned, the evidence  of the  two eye  witnesses is unblemish an can safely be  accepted as trustworthy.  Both the witnesses have categorically stated that A-1 had given two gandasa blows on the vital  part of Karamjeet Singh and in the opinion of Dr. N.C.Garg (PW  1) these  two injuries  were sufficient in the ordinary course  of nature  to cause the death. In this view of the  matter, we  are of  the  considered  view  that  the conviction of  A-1 under  Section 302 IPC is perfectly legal and needs to be upheld and accordingly we do so. 15.  It is  not disputed  that A-2 was convicted by the High Court with  the aid  of Section  34 IPC  for the substantive offence of  murder of  Karamjeet Singh.    The  evidence  on record unmistakably proves that A-2 had given a gandasa blow on the back side just below the shoulder of Karamjeet Singh. That injury  was not  proved to  be fatal  one. Relying upon

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these two  circumstances, it was urged on behalf of A-2 that he could  not be  convicted under Section 302/34 IPC. It was further contended  that A-2  had no  motive and no reason to cause gandasa blow on Karamjeet Singh.  No blood stains were found  on  the  gandasa  which  was  alleged  to  have  been recovered at  the instance of A-2.  The name of A-2 was also not mentioned in the complaint and all that was stated a was that A-1  and other  person had  assaulted Karamjeet  Singh. The trial  court was right in giving the benefit of doubt to A-2.   The High  Court,  it  was  contended,  was  wrong  in attributing common  intention to  A-2 to  commit  murder  of Karamjeet Singh and, therefore, committed a serious error in applying  Section   34  IPC   and  reversing  the  order  of acquittal.   The view  taken by  the trial court was equally probable one  and, therefore,  the High  Court  was  equally probable  one  and,  therefore,  the  High  Court  erred  in convicting A-2  under Section 302/34 IPC. In support of this submission, Mr. U.R.Lalit learned counsel drew our attention to the  decisions of  this Court  in Kripal  and others  Vs. State of  Uttar Pradesh  AIR 1954  SC 706.  Ram  Rattan  and others Vs.  State of  Uttar Pradesh  AIR 1977  SC 619, Bhaba Nanda Sarma  and others  Vs. The  State of Assam AIR 1977 SC 2252 and  Shivalinoappa Kallayanappa and others Vs. State of Karnataka AIR  1995 SC 254.  He also drew our attention to a decision of the Privy Council in Mehbub Shah Vs. emperor AIR (32) 1945  PC 118.   All  these decisions, of not lay down a formula in  a  right  jacket  as  regards  applicability  of section 34  IPC. The  application of  Section 34 IPC depends upon the  facts and  circumstances of  each case.  The facts and circumstances  of the  present case which were proved by the prosecution  are that both the appellants were hiding in the sugar  cane field  of Dial Singh and as soon as they saw Karamjeet Singh with gandasas in their hands.  A-1 then gave a lalkara saying that "they will teach a lesson to Karamjeet Singh for  slapping him." Immediately thereafter, A-1 gave a gandasa blow  from sharp  side on the right side of the head of Karamjeet Singh.  A-w then assaulted karamjeet Singh with his gandasa  on the back side near the shoulder of Karmajeet Singh and  when he  fell down, A-1 gave another gandasa blow near his  right ear.   These circumstances therefore, in our considered view unmistakably indicated that both the accused had a  common intention to teach a lesson to Karamjeet Singh who had  slapped A-1  on the  previous  night.’  From  these proved facts, the only inference that must follow is that A- 2 also  shared a  common intention  to  teach  a  lesson  to Karamjeet Singh  and in pursuance thereof assaulted him with a gandasa.  A strong reliance was placed on the fact that no blood stained  was found  on the  gandasa recovered  at  the instance of  A-2 but  there is  positive  evidence  on  that record that  the gandasa  was washed before the recovery was effected.   If this  be so,  in our  considered view A-2 was rightly convicted under Section 302/34 IPC. 16.  for the  reasons recorded  herein  above,  we  find  no substance in  these appeals  and the  same  are  accordingly dismissed.   The appellants  who are on bail shall surrender to their  bailbonds to serve out the remaining part of their sentences.