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PETITIONER: DARBARA SINGH AND ANOTHER ETC.

       Vs.

RESPONDENT: STATE OF HARYANA AND ORS.

DATE OF JUDGMENT21/04/1992

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. AGRAWAL, S.C. (J)

CITATION:  1992 AIR 1429            1992 SCR  (2) 586  1992 SCC  Supl.  (2) 295 JT 1992 (2)   580  1992 SCALE  (1)827

ACT:      INDIAN PENAL CODE, 1860: Sections 34,148,149,302,304 and 323:      Murder-Common intention-Inflicting injuries with knowl- edge that the injuries may cause the death of  victim-Except one,  other accused did not have such knowledge  -Effect  of -Modification  of sentence in respect of  those  accused-Ac- cused  who  had  knowledge and who  inflicted  vital  injury -Absence  of common intention in causing such  injury  -Sen- tence-Altered.

HEADNOTE:     The  appellants  and two others were  charged  with  and tried  for offences under sections 148,302,149  and  323/149 IPC for causing the murder of one S and causing simple hurts to  one  R,  both related to the accused.  The  Trial  Judge acquitted  one  of  the five accused since no  part  of  the actual occurrence except exhortations were attributed to him and  convicted the other four accused under  section  302/34 and 323/34 IPC, and sentenced them to life imprisonment  and 6 months rigorous imprisonment respectively.     On appeal, the High Court acquitted one more accused  on the ground that the medical evidence did not corroborate the claim  that he used his kirpan with force as alleged by  the prosecution. The appeal preferred by the complainant against this acquittal,was dismissed by this Court.      The  other three accused whose conviction and  sentence were confirmed by the High Court, have preferred the present appeals.      It  was contended on behalf of the appellants that  the prosecution case has been discredited by the Courts  render- ing the same unacceptable resulting in the acquittal of  two accused and for the same reasons, they also deserved acquit- tal.  It  was  also contended that  the  evidence  regarding recovery of weapons did not inspire confidence.                                                    587 Disposing of the appeal, this court, HELD: 1. There may be a tendency here and there to implicate a  person  in addition to actual assailants in a  crime  but substitution is rare and that cannot be the case here. As is evident  the  parties  are closely related.  The  crime  was

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committed  in  broad  day light. The witness  is  a  stamped witness. There was no reason for the prosecution to  falsely evolve  a case against the appellants. The medical  evidence is consistent and corroborative in connecting all the  three appellants. On the eye-witness account and the corroboration it  receives  from medical evidence, their guilt  is  estab- lished  even if the evidence of recovery of weapon  is  kept aside.[592 C-G]   2.  Out of 13 injuries on the dead body six  were  incised wounds and the remaining were blunt weapon injuries. Amongst the incised wounds the first one was by itself sufficient in the  ordinary  course of nature to cause death  of  the  de- ceased. That injury was positively attributed to the  appel- lant  in the second case who opened the attack but  the  re- maining  five incised wounds were not positively  attributed to  him alone. It can safely be assumed that some  may  have fallen  to his share to be inflicted and others to  the  co- accused who has since been acquitted. Even though the Doctor has  stated  that  all the incised wounds  could  have  been caused  by Kulhar P.1, that by itself cannot go to  conclude that all the incised wounds were caused by the appellant  in the second case. Since he inflicted the first incised  wound on the head of the deceased, which was sufficient by  itself in  the  ordinary  course to cause death,  he  has  rendered himself liable to be adjudged guilty under section 302  IPC. [592-H; 593 A_C]    3.  Since extensive damage had been done to the limbs  of the  deceased after the infliction of vital injury No.1,  it can safely be inferred that despite the assailants’ choosing non-vital  parts of the body for inflicting those  injuries, they must be attributed the knowledge that by their concert- ed act they were likely to cause death of the deceased,  for which  act they could be punished under section 304  part-II of  the  Indian penal Code. The act was done while  the  de- ceased was alive . The outcome of injury No.1 may or may not have  been perceived by the assailants except the  appellant in the second case, but they were satisfied in choosing  and inflicting  injuries on non-vital parts which injuries  were caused by breaking the bones of  his arms and legs.[593 F-H]   4. Due to his young age, being in teens, the appellant  in the first case                                                    588 may  have acted under the influence of his  paternal  uncle, viz; the appellant in the second case. Though he shared  the common  intention of causing extensive injuries to  the  de- ceased  and  injuries to P.W.4 he may not  have  shared  the common  intention  of causing death but  can  definitely  be attributed  the  knowledge  that by his  concerted  act  the victim  could  die. Similarly the share  cropper  had  acted under  the influence of his employers.but cannot be said  to be  a co-participant in intentionally causing the  death  of the  death  of the deceased. He too must be  attributed  the knowledge  that  by his act in concert with  others  he  was others  he  was likely to cause the death of  the  deceased. Also,  no  injury on any vital part of the body of  the  de- ceased was attributed to either of these accused. According- ly,  these appellants are held guilty of offence under  sec- tion  304  part II IPC, read with section 34  IPC,  and  not under section 302 IPC.[594 A-D]      5.  The conviction of the appellant in second  case  is altered  to a plain one under section 302 IPC and  his  life sentence  is maintained. His conviction and  sentence  under section  323/34  is also sustained. The  conviction  of  the other  appellants are altered to one under section 304  part II  IPC  read with section 34 IPC for which  a  sentence  of

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seven  years  rigorous imprisonment is imposed  on  each  of them.[594 D,E]

JUDGMENT:      CRIMINAL  APPELLATE JURISDICTION: Criminal  Appeal  No. 715of 1981.                         WITH  Criminal Appeal No. 716 of 1981. From  the judgment and order dated 15.5.1981 of  the  Punjab and  Haryana  High Court in Criminal Appeal No.  419(DB)  of 1980. U.R. Lalit, A.N. Mulla, S.K. Sabharwal and O.K. Khullar  for the Appellants. I.S. Goyal for the Respondent. The Judgment of the court was delivered by PUNCHHI,  J.  These  two appeals are  directed  against  the judgment and order of May 15,1981 passed by a Division Bench of the Punjab and Haryana High Court in Criminal Appeal  No. 419-DB of 1981.                                                     589      The  appellants  are three in number . They  are  Wazir Singh,    his    nephew    Darbara    Singh    and    share- cropper(seeri)Dalip Singh. These three, together with Mohin- der Singh the brother of Wazir Singh’ and father of  Darbara Singh,  as also one Avtar Singh, Wazir Singh  ’s  father-in- law’s brother, stood trial before the sessions Judge, Bhiwa- ni  for  offences under sections 148,  302/149  and  323/149 I.P.C.for having caused the murder of Sadha Singh,  paternal cousin of Wazir Singh and Mohinder Singh accused, as also to have  caused simple hurts to Ranjit Singh, PW4 sister’s  son of the deceased. The learned Sessions Judge acquitted  Avtar Singh  taking the view that since the Investigating  Officer could  not recover the gun, the weapon of offence, from  him in  spite of interrogation, his name had been introduced  by the  prosecution in order to complete the  alleged  unlawful asembly,convenient and handy as it was because of  relation- ship  with deceased. Avtar Singh was attributed no  part  in the  actual  occurrence except exhortations.  The  remaining four accused were convicted under sections 302/34 and 323/34 I.P.C.  and  were  sentenced to life  imprisonment  and  six months  rigorous  imprisonment respectively. In  appeal  the High Court acquitted Mohinder Singh accused taking the  view that  though  he  was stated to have used  his  kirpan  with force, the medical evidence did not corroborate this version because  DR. B.M. Kapur, PW-2, who performed the autopsy  of the deceased, opined that the injuries which apparently were kirpan  injuries  could  only be caused by the  tip  of  the kirpan  suggesting  that much force had not been  used.  The High  Court  then went on to agree with the opinion  of  Dr. Kapur  to say that all the incised  wounds on  the  deceased could  have been caused by Kulhari Ex.PI. This  Kulhari  was suggested to have been used by Wazir Singh appellant towards commission of the crime. On that premise the High Court  let off Mohinder singh recording the opinion that his participa- tion  was  doubtful.  For lack of  coroboration  of  medical evidence  the  High Court also observed that  it  was  quite probable that like Avtar Singh, acquitted co-assused, Mohin- der Singh accused too had been brought in as an accused.  As a  result  the three apellants remained convicted  and  sen- tenced. So they are here before us.      Criminal Appeal No.714 of 1981 was preferred by  Ranjit Singh  complainant  against  acquitted  co-accused  Mohinder Singh  but this appeal was dismissed by us on  8-4-1992  for

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non-prosecution  because learned counsel for that  appellant stated  that he had no instructions. So Mohinder  Singh  re- mained acquitted.                                                      590 The occurrence took palce on November 10,1979 at 12.30  P.M. in  the open fields of Village Kikral. Deceased Sadha  Singh was present in his fields taking out grass while  deceased’s nephew   Ranjit  Singh P.W.4 was present ploughing  the  de- ceased’s  field.  close by in their own  fields  were  Jagir Singh P.W.5 and Malkiat Singh P.W.6. At that juncture Mohin- der  Singh  acquitted co-accused armed with a  sword,  Wazir Singh  armed with a kulhari, Darbara Singh and Dalip  Singh, armed with lathis each and Avtar Singh acquitted  co-accused armed  with  a gun came together towards  the  deceased  and opened assault on him. Wazir Singh apellant started and gave a kulhari blow on the head of the deceased whereas  Mohinder Singh  acquitted co-accused gave injuries by  kirpan.  Dalip Singh  and Darbara Singh appellants inflicted  lathi  blows, Avtar  Singh acquitted co-accused raised exhortations.  When Ranjit  Singh  P.W. interfered he was given lathi  blows  by Dalip  Singh and Darbara Singh, appellants. Jagir Singh  and Malkiat  Singh P.Ws. who saw the occurrence came running  to the  place  and found Sadha Singh lying  injured  seriously. Sadha  Singh and Ranjit Singh victims were brought by  Jagir Singh and Malkiat Singh P.Ws. in injured condition to  Rural Dispensary,  Siwani which is at a distance of  5  kilometers from the place of occurrence. Dr. Ram Krishan P.W.3 Incharge of  the Dispensary, after examining and giving first aid  to Sadha  Singh  advised  him to be taken  to  Civil  Hospital, Bhiwani  as  his condition was serious.  Ranjit  Singh  P.W. however  was admited in the Rural Dispensary Siwani,  Siwani police  was  informed about the arrival of  both  the  them. Sadha  Singh was taken to Civil Hospital, Bhiwani, where  he was  found  dead.  Dr. Gambhir P.W. 1 sent  message  to  the police station informing the Bhiwani police about the arriv- al of the dead body. Sub Inspector Sadhu Sing P.W. 12 on the basis  of  message of Dr. Ram Kishan P.W. 3  went  to  Rural Dispensary,  Siwani  where  he recorded   the  statement  of Ranjit Singh P.W.4 at 4.15 p.m. First Information Report  on the  basis of the said statement was recorded at the  police station  at 5.30p.m. The special report reached  the  Magis- trate at Bhiwani on 11-11-1979.      Now  about the motive. The grand-father of sadha  singh deceased had four sons, chanan Singh , Bishan Singh,  Kishan Singh and Makhan Singh. The eye-witnesses Malkiat Singh  and jagir  Singh are the sons of Chanan Singh. Sadha  Singh  de- ceased was the son of Bishan Singh. Mohinder Singh acquitted co-accused  and  Wazir Singh appellant are  sons  of  Kishan Singh.  Makhan  Singh the fourth son was married  to  Harnam Kaur but had not made issue. It appears that Makhan Singh on September                                                     591 20,1975  executed  an agreement to sell his  lands  in  some proportions  to  the  three families of  his  brothers,  but Mohinder  Singh acquitted co-accused wanted to purchase  all the  land of Makhan Singh. The agreement ultimately did  not materialise.  Thereafter  there is history of  acrimony  and illwill  between the parties itching to obtain the  land  of Makhan  Singh. Besides Wazir Singh appellant got lodged  FIR against Sadha Singh deceased in may, 1977 accusing him of an attack and of having stolen away his motor cycle. such  were the  strained  relations which provided the  motive  of  the crime.      The  post mortem of Sadha Singh deceased  performed  by Dr.  B.M. Kapur P.W.2 revealed 13 injuries on his body.  the

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first one was an incised wound 2"x1/2" over the left side of the  forehead, on dissection of which it was found to  be  a fracture  of  the frontal bone. There was also  extra  dural haemotoma  and fracture of the skull on the left  side.  The other  injuries were either incised wounds or  blunt  weapon injuries.  They were on non-vital parts of the  body.  There were, however, compound and diverse fractures of both  bones of both the legs as well as that of both the arms. The cause of  death  then opined by Dr. Kapur was, due  to  shock  and haemorrhage  on  account  of multiple  injuries,  which  was sufficient to cause death in the ordinary course of  nature. At  the trial however Dr. Kapur went on to add  that  injury No.1 could individully be sufficient in the ordinary  course of nature to cause death. He also opined that injuries other than injury NO.1 collectively were sufficient to cause death in the ordinary course of nature even if one were to exclude injury  No.1. Dr. Kapur further opined that all the  incised wounds could be caused by kulhari P.1. Dr. Ram Kishan  P.W.3 on  examination found Ranjit Singh having five  injuries  on his person which were simple in nature and were caused by  a blunt weapon. Four of them were contusions which were  size- able and one was an abrasion.      During  the investigations the  weapons of the  offence were recovered by the investigating officer at the  instance of  recovery statements made by the accused persons  respec- tively.      The  entire bundle of evidence was produced before  the Court  of sessions which led to the result above  indicated. Learned  counsel for the appellants individually as well  as collectively  at  the first instance  pressed  into  service reasons for the acquittal of Avtar Singh and Mohinder Singh                                                    592 co-accused  to  contend that the prosecution case  has  been discredited  by the courts below rendering it  unacceptable. Highlighting this aspect it was contended that the complain- ant  party  apparently  had spread their net  wide  and  had dragged  in  Avtar Singh acquitted co-accused just in  order to  lay charge of unlawful assembly and Mohinder  Singh  co- accused  to share the incised injuries, when those  injuries could have been caused by one weapon like kulhari Ex.Pl.  On that  basis it was asserted that P.W.s having told lies  the entire prosecution case deserved throwing out. Beside it was urged  that the evidence regarding recovery of  weapons  did not inspire confidence. These arguments even though  attrac- tive  do not appeal to us. There may be a tendency here  and there to implicate a person in addition to actual assailants in  a crime but substitution is rare and that cannot be  the case  here. As is evident the parties are  closely  related. The crime was committed in broad day light. Ranjit Singh  is a  stamped witness. There was no reason for the  prosecution to  falsely evolve a case against the appellants.  Now  here there  are two types of injuries on the deceased  being  in- cised  wounds  and  blunt weapon injuries  totalling  13  in number.  This is suggestive of at least two  assailants  re- spectively  armed with suitable weapons. to  be  responsible for  these injuries. But when these seven blunt  weapon  in- juries  of the deceased are added to five blunt  weapon  in- juries of Ranjit Singh P.W. and the extensive damage  caused seen,  it  becomes  evident that there were  more  than  one assailant inflicting blunt weapon injuries. Thus there  were three  assailants  as is evident from  the  result.  Besides shortly before the occurrence Ranjit Singh P.W. was  plough- ing the field and it is expected of a ploughman to be carry- ing  a  stick. The very fact that he did not claim  to  have used any goes to confirm that he was a victim of two assail-

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ants  who could use their blunt weapons against him as  well as  against the deceased. The medical evidence is thus  con- sistent and corroborative in connecting all the three appel- lants,  that is, in Wazir Singh having used his kulhari  and Dalip  Singh and Darbara Singh having used their  lathis  in the commission of the crime. On the eye-witness account  and the  corroboration it receives from medical evidence,  their guilt  is  established even if the evidence of  recovery  of weapons  is kept aside. We have thus no reason  to  question the  ultimate result arrived at by the High Court though  we have our doubts about the reasoning employed by it to acquit Mohinder Singh co-accused.      The  next point urged was with regard to nature of  the offence committed by  the appellants. We notice that out  of 13  injuries on the dead body of Sadha Singh, six  were  in- cised wounds and the remaining were blunt                                                     593 weapon  injuries. Amongst the incised wounds the  first  one above-described  was  by itself sufficient in  the  ordinary course of nature to cause death of the deceased. That injury was  positively  attributed  to Wazir  Singh  appellant  who opened the attack but the remaining five incised wounds were not positively attributed to Wazir Singh appellant alone. It can safely be assumed that some may have fallen in his share to be inflicted and others to Mohinder Singh co-accused  who has  since  been acquitted. Even though Dr. B.M.  Kapur  has stated that all the incised wounds could have been caused by kulhar p.1 but that by itself cannot go on to conclude  that all the incised wounds were caused by Wazir Singh appellant. Distinguishing  the  role assigned to Wazir  Singh  in  this manner, we take the view that on the infliction of the first incised wound on the head of the deceased, which was  suffi- cient  by itself in the ordinary course of nature  to  cause death,  and death did ensue, Wazir Singh appellant has  ren- dered himself liable to be adjudged guilty under section 302 I.P.C.      Dr.  B.M. Kapur has further opined that  leaving  aside injury   No.1,  injuries  nos.2  to  13  were   collectively sufficient to cause death in the ordinary course of  nature. In  this  collection we have five incised wounds  and  seven blunt  weapon injuries. The blunt weapon injuries are  frac- tures  of bones of both the arms and legs. Even though  some of  those blunt weapon injuries are extensive and  grievious in  nature  because  of the fracture of bones  of  the  left fore-arm,  right  fore-arm, elbow, left leg and  right  leg, these by themselves cannot in the facts and circumstances of this case, be said to have been inflicted by the  assailants other  than  Wazir  Singh appellant with  the  intention  of causing death, or in ratification of the act of Wazir  Singh appellant.  But since extensive damage had been done to  the limbs  of Sadha Singh, after the infliction of vital  injury No.1, it can safely by inferred that despite the assailant’s choosing  non-vital parts of the body for  inflicting  those injuries,  they  must be attributed the  knowledge  that  by their  concerted act they were likely to cause death of  the decease,  for which act they could be punishable under  sec- tion  304 part-II of the Indian Penal Code.The act was  done while sadha Singh was alive. The outcome of injury No.1  may or  may  not have been perceived by  assailants  other  than Wazir Singh but they were satisfied in choosing and inflict- ing injuries on non-vital parts of the body of Sadha  Singh, Which injuries were breaking bones of his arms and legs.      We  have leaned towards this view also for  the  reason that Darbara                                                     594

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Singh,  due to his young age being in teens, may have  acted under  the  influence  of his paternal  uncle  Wazir  Singh, appellant  and  though  he shared the  common  intention  of causing  extensive  injuries  to deceased  Sadha  Singh  and injuries  to  Ranjit Singh P.W. he may not have  shared  the common  intention  of  causing the former’s  death  but  can definitely be attributed the knowledge that by his concerted act  Sadha Singh could die. Similarly Dalip Singh,  a  share cropper  of  his employer, Wazir singh and  Mohinder  singh, perhaps  had acted under the influence of his employers  but cannot  in  these facts be said to be  a  co-participant  in intentionally causing the death of Sadha Singh. He too  must be attributed the knowledge that by his act in concert  with others  he was likely to cause to death of the deceased.  It is  worth reminding that neither of the two accused  Darbara Singh and Dalip Singh are attributed any injury on any vital part of the body of the deceased. Thus on the above analysis Darbara  Singh and Dalip Singh, appellants are  held  guilty for offence under section 304 Part II IPC, read with Section 34 IPC.      Resultantly  we  alter the conviction  of  Wazir  Singh appellant to a plain one under section 302 IPC and  maintain his life sentence. His conviction and sentence under section 323/34  is also sustained. The convictions of Darbara  Singh and Dalip Singh appellants are altered to one under  section 304 part II IPC read with section 34 IPC for which  sentence of  seven years rigorous imprisonment is imposed on each  of them. The appeals stand disposed of accordingly.  G.N.                                 Appeals disposed of.                                                          595