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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: BHOLA SINGH & ANR.

DATE OF JUDGMENT:       31/03/1998

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI, J.      Both these  appeals are  directed against the acquittal of the  two respondents.  They  were  tried  for  committing murder of Jaggar Singh. The trial court convicted respondent Bhola Singh  but acquitted respondent Mithu Singh giving him benefit of  doubt. Bhola  singh appealed  to the  High Court against  his   conviction  and   the  state  challenged  the acquittal of  Mithu Singh. The High Court allowed the appeal of Bhola  Singh and  dismissed the  State’s  appeal  against Mithu Singh.      It was  the prosecution  case that  after the murder of Kartar Singh,  father of  both the respondents, Jaggar Singh the deceased  had  developed  illicit  intimacy  with  their mother. This  was not  liked by the respondents. On 5.2.1987 at about  1.00 P.M.  the deceased,  who was la labourer, was collecting bricks  for  one  Sukhwinder  Kaur.  His  brother Gamdoor Singh  was working  at some distance and Bhola Singh had some  time earlier gone for taking tea. Seeing him alone the respondents  attacked him.  Bhola Singh  gave two Kirpan blows on  the back  of his  knee and  Mithu Singh  gave  one gandasa blow  on his right leg. After the deceased fell down they gave  two or  three more blows on the back of his neck. Seeing Bhura Singh and Gamdoor Singh coming towards them the accused ran  away from that place. On these allegations both the accused  were tried  in the  Court  of  Sessions  Judge. Sangrur  in   Sessions  case   No.  28/87  for  the  offence punishable under  Section 302  read with  sec. 34  IPC.  The trial court believing the evidence of PW-3 Gamdoor Singh and PW-4 Bhura  singh convicted  Bhola Singh  under section  302 IPC. Mithu Singh was given benefit of doubt as it was of the opinion that  the evidence  of the  two eye  witnesses  with respect to him was not corroborated by the medical evidence. The High  Court  also  believed  the  evidence  of  the  eye witnesses but  strangely acquitted  Bhola Singh also holding that it  was not possible to say from the evidence as to who out of  the two accused had caused the fatal injuries to the deceased and therefore neither of them could be held guilty.      The learned  counsel for  the appellant  Mr. R.S. Sodhi submitted that  the High Court having come to the conclusion

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that the  evidence of  the two  eye witnesses  was worthy of acceptance ought  to have  convicted them  under Section 302 read with  Section 34  IPC. This  contention deserves  to be accepted.      The High Court in its judgment has observed as under:-           "The question  now is  on  the      evidence,  it   can  be  said  with      certainty that  it was  Bhola Singh      who was  responsible for  the  head      injuries. The  prosecution examined      (PW3) and Bhura Singh (PW4) as eye-      witnesses to  the occurrence.  Both      these      eye-witnesses       have      consistently  stated   that   Bhola      singh accused  gave two KIRPAN blow      on the  back side  of the  knee  of      Jagger  Singh   and   Mithu   Singh      accused gave on GANDASA blow on the      right lower  leg of  the   deceased      with its  blunt side  and  that  on      receipt  of   these  injuries  when      Jaggar Singh fell down, each of the      accused gave two on three more blow      on the  back of  his neck. Br. H.L.      Garg who  conducted autopsy  on the      body   of    the    deceased    has      categorically stated that the could      not definitely  say that  if injury      No.2 could be caused with a KIRPAN.      According  to   the   evidence   on      record, injuries  on the  neck  and      the right  leg of the deceased were      stated to have been caused by Bhola      Singh and  Mithu Singh  accused but      then it  emerges from  the evidence      that each of the accused caused him      two or  three more injuries. On the      question,  therefore,  whether  the      fatal injuries were caused by Bhola      Singh accused  only or  Mithu Singh      accused only  or by both, we do not      think we  can safely  come  to  the      conclusion that  it was Bhola singh      who caused the fatal injuries n the      head  and  neck  resulting  in  the      death  of   Jaggar  singh.  In  the      circumstances, neither  of them can      be held  responsible for  the fatal      injuries caused  to the   deceased.      In this  view, we have  necessarily      to acquit Bhola singh accused."      From these  observations it appears that the High court had lost  sight of  the fact  that there  was also an appeal against acquittal  of Mithu  Singh. Possibly,  that  is  the reason why  we find no discussion ins the judgment regarding dismissal of  the state  appeal against Mithu Singh. Only at the   fag  end  of  the  judgment  after  making  the  above observation the  High Court  had  stated.  "As  a  necessary consequence, criminal  appeal No. 43-DB of 1988 filed by the State against  the acquittal   of  Mithu singh  fails and is dismissed." The  High court  treating the acquittal of Mithu Singh as  final allowed  the appeal  of Bhola Singh and then dismissed the  appeal against  Mithu singh  as  a  necessary consequence of acquittal of Bhola singh. Thus neither of the two appeals was dealt with property by the High Court.

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    We have,  therefore, gone  through the  evidence of the two     eye  witnesses.  We  find  that  their  evidence  is consistent and  does not  suffer from  any  infirmity  which would create  any doubt  regarding  their  having  seen  the incident. both  the courts below were also of the same view. They had  no reason  to falsely  involve the  respondents if they were  really not the assailants. The eye witnesses have stated that  Bhola Singh  have given two blows with a kirpan on back  of the  knee of  the deceased  and Mithu  Singh had given one  gandasa blow  on his  right  leg  and  after  the deceased had  fallen down  they had  given two or three more blows on  the back of his leg. the trial court held that the two injuries found on the head and neck of the deceased were caused by  bhola Singh  and if  Mithu Singh had given two or three blows  to the  deceased after  he had fallen down then there should  have been  two or  three more  injuries on the person of  the deceased. As there were only five injuries on the person  of the  deceased the  trial court  held that the evidence of the eye witnesses as regards the blows stated to have been given by Mithu Singh after the deceased had fallen down stood  contradicted by medical evidence had fallen down stood contradicted  by medical  evidence. It  also held that the injury  on the right leg of the deceased could have been caused by  a fall.  It, therefore,  gave benefit of doubt to Mithu singh  and acquitted  him. The  High court  was of the view that  it was not proved beyond doubt by the prosecution that the  injuries on  the head and the neck of the deceased were caused  by Bhola singh alone or by Mithu Singh alone or by both  of them together. What the trial court and the High Court failed  to appreciate  was that  both Bhola  Singh and Mithu Singh  had  come  together  to  the  place  where  the deceased was  working along  with his  brother PW-3  Gamdoor Singh and  PW-4 Bhura  singh. both of them had assaulted the deceased before  he had  fallen down. The injuries stated to have been  caused by  Mithu Singh  on  the  right  calf  was corroborated by the medical evidence. It, was therefore, not at all proper to reject the evidence of the eye witnesses as regards the  said injury caused by Mithu singh on the ground that the  said injury  was also  possible by  a  fall.  Thus presence and  participation by  both Bhola  Singh and  Mithu Singh was proved by the prosecution beyond reasonable doubt. Both of  them had common animus against the deceased as they had not liked his illicit intimacy with their mother. It was also not  correct not  to accept  the evidence  of  the  eye witnesses on  the ground  that no  injury was  found on  the person of  the deceased  as a result of any blow having been given to  him by Mithu Singh after he had fallen down on the ground. They  had not stated that the blows given by him had in fact  caused injuries  to  the  deceased.  It  was  quite likely, as  the deceased was till then to seriously injured, that the  deceased  had  avoided  those  blows.  Even  while proceeding on  the basis that no further blows were given by Mithu Singh after the deceased had fallen down on the ground it ought to have been appreciated that the said circumstance could not  have made  any difference as regards his guilt as both of  them were  acting in  furtherance of  their  common intention. The words uttered when they saw the deceased near that place  were that   they would teach a lesson to him for having illicit  relations with their mother and they clearly indicated their intention to finish him.      It was  however urged  by the  learned counsel  for the respondents that  the evidence of PW-4 Bhura Singh discloses that the  deceased was  not well   on that day as he had not taken tea  in the  morning and, therefore, it was not likely that he  had gone for work on that day. The deceased and his

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brothers belonged  to village  Jakhepal while  the dead body was found  near Indira  Basti  of  Sunam  Town.  Unless  the deceased had  gone there  his dead  body could not have been found from that place.      It was  also contended  by the  learned counsel for the respondents that  not a single independent  witness from the locality was  examined by the prosecution to prove its case. We do  not find  any substance  in this contention also. The evidence of the Investigating Officer (P.W.7) discloses that the place where the incident took place was little away from Sunam Town  as one  had to  pass through the market and then reach that place. He has also stated that when he along with other police  personnel had  reached that   place  none  was present there. P.W-10, the sub Inspector who had accompanied him has  also stated  that he  could not record statement of any person  residing nearby as the women folk had closed the doors of  their houses and they had refused to come out even though they  were called  for the purpose of recording their statements. It  is, therefore,  not correct  to say  that no attempt was  made by  the Investigating  Officer to find out whether any  independent witnesses  had seen the incident or not.  As  none  had  come  forward  as  an  eye  witness  no independent person  could  have  been  examined  as  an  eye witness.      The evidence  of PWs.3  and 4 leaves no doubt that both Bhola Singh  and Mithu  Singh were  acting in furtherance of their common  intention when  they  had  assaulted  deceased Jaggar Singh and caused his death. We, therefore, allow both these appeals  and set  aside the  common judgment and order passed in  criminal Appeal  Nos. 438-DB  of 19887and 43-DB f 1988. Both  the respondents  are convicted  for the  offence punishable under  Section 302  read with  Section 34 IPC and sentenced to  suffer imprisonment  for life. The respondents were  on   bail  during   the  pendency  of  these  appeals, therefore, they  are ordered  to surrender  to  custody  for serving out the sentence  imposed upon them.