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PETITIONER: LABHU RAM AND ORS.

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT26/09/1995

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) FAIZAN UDDIN (J)

CITATION:  1995 SCC  Supl.  (4)  17 JT 1995 (7)    98  1995 SCALE  (5)568

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T G.N. RAY. J.      This appeal  is directed  against  the  Judgment  dated April 19,  1979 passed  by the  High  Court  of  Punjab  and Haryana in Criminal Appeal No. 1300 of 1976. By the impugned judgment,  the   High  Court  affirmed  the  conviction  and sentence passed  against the  appellants by  the learned 1st Additional Sessions  Judge Ludhiana  on  August  28,1976  in Sessions Case No. 55/20 of 76 (Sessions Trial No. 33 of 76). Out of the four appellants before this Court, appellant No.1 Labhu Ram  died during  the pendency  of this appeal and the present appeal now concerns appellant Nos. 2 to 4. It may be stated here that the three appellants were sons of Labhu Ram deceased and  they were  convicted by  the trial  court  for offences under  Sections 302/34.  323/34 and  201/34 of  the Indian penal  code and were sentenced to suffer imprisonment for life for the offence under Section 302 read with Section 34 and  a fine  of Rs.500/-  in default further imprisonment for six  months; sentence  of six  months RI  under  section 323/34 IPC  and sentence  of RI  for one  year under Section 201/34 IPC. Gurdial Singh was further sentenced for one year RI under  section 323 IPC for causing injury on Bhagwan kaur wife of the deceased Bhanan Singh. Malkiat Singh and Darshan Singh were  sentenced to  suffer RI  for nine  months  under Section 323/34  IPC  and  it  was  directed  that  the  said sentences to run concurrently.      The prosecution case in short is that there was a house belonging to  Hari Singh and Mehar Singh who were tailors by profession. A  day before  the occurrence the said house was purchased by  Bachan  Kaur  wife  of  Gurdial  Singh  for  a consideration of  Rs.10,000/-. In  the sale deed there was a recital that  the purchaser  herself would obtain the actual physical possession.  Only symbolic  possession was given to the said  purchaser. It  is the  prosecution case  that PW 5 Piara Singh  was the  tenant in  the said house on a monthly

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rent of  Rs.80/-. The  appellants in  a bid to obtain actual physical possession after the purchase demolished a wall and a door  of the said house in the evening of February 9,1976. Piara Singh thereater sought the help of the deceased Bhanan Singh, Dr.  Kewal Krishan  Sood PW  7 and Darshan Singh. The said persons inquired from the appellants as to why they had demolished a  portion of  the said  house to  which they had received the  reply that  since the  appellants  became  the owners by  purchase they would take possession. The deceased and the said other persons intervened in order to settle the matter amicably  and desired to see the registered sale deed and the matter was postponed for such settlement on the next day. On  the early  morning of  February 10, 1976 at 4 a.m., the appellants  came in  front of  the house of the deceased Bhanan Singh  and started  hurling abuses  on  him.  Darshan Singh at  that time  was armed  with a sua and the remaining appellants had lathi in their hands. They asked Bhanan Singh to come  out of  the house  and to  see the consequences for rendering help to Piara Singh. Bhanan Singh and pw 4 Bhagwan Kaur then  came out  of the  house. Piara  Singh and  Gurdev Singh also  came out of their houses. They tried to persuade the appellants  not to  hurl abuses.  On this  Darshan Singh gave a  blow with the sua on the head of the deceased Bhanan Singh, but  the weapon  missed the head and the dang portion of the sua hit the head. Gurdial Singh also hit Bhanan Singh with lathi  on the  right leg. Malkiat Singh gave lathi blow on the  back of  Bhanan Singh  deceased. When  Bhagwan Kaur, Piara Singh  and Gurdev  Singh advanced  to intervene,  they were also  given blows  by Gurdial  Singh.  Thereafter,  the other appellants gave blows to Piara Singh. The accused gave some more  blows  to  Bhanan  Singh,  when  he  had  fallen. According to  the prosecution  case the  incident had  taken place near  the house  of Bhanan  Singh and the house of the appellants was at a distance of about 60 yards from the said place. Bhanan Singh died at the said spot and the appellants then carried away his body to their house.      Bhagwan Kaur  PW 4 lodged the FIR at the Police Station Industrial Area,  Ludhiana, shortly  after the incident at 5 a.m. It  may be  stated here that the distance of the Police Station was  one mile from the spot. The copy of the FIR was received by the Magistrate at Ludhiana at 7 a.m. on the same day.      All the  appellants, except  deceased  Labhu  Ram,  had pleaded that  they were  absent from their house at the time of the  incident and  Labhu Ram  accused took  the plea that being quite old it was difficult for him to walk and he also stated that  Gurdial Singh  Darshan Singh  had  been  plying rehras and  for that  reason they were not in their house on the night  of the  occurrence. He also stated that his other son Malkiat  Singh was  not residing  in the family house at Dashmesh Nagar when the occurrence had taken place. The said Malkiat Singh  was employed  as Enforcement Inspector in the Agricultural Department,  Ludhiana and  he used to reside in another house of his father situated in New Janta Nagar. The said Labhu Ram also stated that he was falsely implicated.      Malkiat Singh had also stated that he used to stay with his family  members at  New Janta  Nagar residence which was about 1 1/2 miles from Dashmesh Nagar and he was not present at the  time of  occurrence. He  further stated  that he was informed by  Pritam Singh.  Gurdev Singh  and Dayal Singh at about 2.30  a.m. on  the day of occurrence that some persons were abusing  and were  creating nuisance  on public road in their Mohalla  at Dashmesh Nagar and apprehending trouble to the family  members at  Dashmesh Nagar from such persons, he went to  the police out post at 6-1/2, Basant Park alongwith

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the said  three persons  and gave a report in writing to the Munshi of  the said  out post, at about 3 a.m. He got a copy of the  said report duly acknowledged and signed by the said Munshi Mahender  Singh. The  Munshi sent  a  constable  with Malkiat Singh and his companions to the police division No.6 and Mahinder  Singh then  came  to  know  that  some  police officials had  already gone to Dashmesh Nagar. He thereafter came back to his New Janata Nagar residence and reported the matter to his office.      The Investigating  Officer had  found the  dead body of Bhanan Singh inside the house of the appellants. The case of the appellants  was that Bhanan Singh having consumed liquor during the  night, came  over to their house by scaling over the boundary  wall.  He  however  fell  from  the  wall  and received  injuries  causing  his  death.  The  body  of  the deceased bhanan  Singh was  sent for  postmortem examination and autopsy  was conducted at 4 p.m. on February 10, 1976 by Dr.  Jagjit   Singh  PW  1  and  from  such  examination  it transpired that  the deceased received 19 injuries,including lacerated  wounds,   contusions  and   abrasions.  It   also transpired from postmortem examination that sternum bone was fractured in  its upper  middle part corresponding to injury No.4. There  was fracture  of the  second, third, fourth and fifth ribs  on the  right side of the chest corresponding to injury No.2. There was also fracture of fifth and sixth ribs on the right side of its back which was the result of injury No.11. The  right pleura was injured and the cavity was full of blood.  The right  lung was  also injured  in middle  and upper lobes. According to doctor the death was due to shock, internal haemorrhage and injuries to the vital structures of the right  chest caused  by injuries Nos.2 and 11. According to the doctor both the said injuries were fatal and each one of them  was individually  sufficient to  cause death in the ordinary course of nature.      The  learned  Sessions  Judge,  after  considering  the evidences adduced in the case and other materials on record, held that  the prosecution case was proved and convicted the appellants and  passed sentences  mentioned hereinbefore. On appeal  before  the  Punjab  and  Haryana  High  Court,  the Division Bench  of the  High Court  by the impugned judgment affirmed the  convictions and  sentences passed  against the appellants and also against the deceased appellant Labhu Ram and dismissed the appeal.      Mr. Sushil  Kumar, the learned Senior counsel appearing for the  remaining three  appellants, has submitted that the case of  the prosecution  is not  believable at  all. It was highly improbable  that the  appellants having purchased the house in  the village  with their  eyes  open  that  it  was tenanted where  Piara  Singh  had  been  residing  with  the members of  his family  would demolish  the wall of the said house in an attempt to take forcible possession. He has also submitted that  it  is  also  highly  improbable  that  only because the  deceased and  some other  persons  intended  to mediate in  the matter  and wanted  to  settle  the  dispute between the  appellants  and  the  said  Piara  Singh  after looking to  the said  sale deed, the appellants would become so enraged  that they  would go to the house of the deceased in early hours of the morning and start abusing the deceased and threaten  him with  dire consequences.  Mr. Sushil Kumar has submitted  that if the appellants had really intended to kill the  deceased, they  would not  have murdered him after shouting and thereby inviting others to come and witness the commission of the crime. Mr. Sushil Kumar has also submitted that admittedly  the body  of the  deceased was found inside the house  of the  appellants and  no blood  mark  could  be

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noticed in  support of  the prosecution case of carrying the said body  from the  place of  incident to  the house of the appellants which  was admittedly  about 60 to 70 yards away. Mr. Sushil  Kumar has  also submitted that wife of Labhu Ram has deposed  that the  deceased had  come to  their house in drunken state  at night  and started  abusing the members of the family  and had been threatening to molest the daughters in the house. But the deceased being drunken, could not take care of  him and  fell down  from the wall thereby receiving injuries which  caused  his  death.  Mr.  Sushil  Kumar  has submitted  that   in  the   instant  case  only  contusions, lacerated wounds and abrasions were found on the body of the deceased. If  sua and lathis had been freely used by all the appellants with intention to murder the deceased, the doctor ought to  have noted  several other serious injuries on head and other  vital parts of the body. He has submitted that it is significant  to note  that there  was no  punctured wound which would  be caused  if sua  blows were given. Mr. Sushil Kumar  has   also  submitted   that  fracture  of  ribs  and consequential damage  of  pleura  and  lungs  was  also  not improbable, if a person falls from a height.      Mr.  Sushil  Kumar  has  strongly  contended  that  the appellant Malkiat  Singh has  been falsely implicated by the prosecution. The  said Malkiat Singh was fairly educated and was an Enforcement Inspector in the Agricultural Department. He had  been staying in a separate house at New Janata Nagar and not  at the  family residence  at  Dashmesh  Nagar.  Mr. Sushil Kumar has submitted that Malkiat Singh being informed at about  2-30  a.m.  by  three  neighbors  of  the  Mohalla Dashmesh Nagar  that  some  persons  being  drunk  had  been abusing and creating nuisance at the Dashmesh Nagar Mohalla, where  the  family  residence  was  situated,  he  left  his residence at  New Janta Nagar and in the company of the said persons went  to the police out post Basant Park for lodging the said  information so  that no  untoward  incident  would happen in  his Mohalla.  Mr. Sushil Kumar has submitted that the fact  that Malkiat  Singh had in fact gone to the police out post,  stands corroborated  by the  copy of  the  report lodged by him since acknowledged in writing by the Munshi of the said  police out  post. Mr.  Sushil Kumar  has submitted that even  if it  is assumed that the said Malkiat Singh, on the date  of the  incident was present in the Dashmesh Nagar residence, it  is highly  improbable that and his ailing old father would  come out  of their  house in the early morning and would  go near  the house  of  the  deceased  and  start hurling abuses  on the  deceased and even when the widow and other witnesses had come there and had persuaded the accused not to create trouble, he and other accused would indulge in assaulting the  deceased in  the presence  of eye-witnesses. Mr. Sushil  Kumar has  submitted that  such case  is  highly improbable. Malkiat,  his old ailing father and other family members were deliberately and falsely implicated in order to wreak vengeance  on the  deceased Labhu  Ram and  his  three sons. Mr.  Sushil Kumar  has  also  submitted  that  in  the instant case no punctured wound was noticed on the person of the deceased  even when  according to  the prosecution case, one of  the appellants  was armed with sua. He has submitted that in any event, the nature of injuries only indicate that the persons  who had assaulted the deceased had no intention of killing  him but had intended to give him some thrashing. Unfortunately some  vital parts  got injured in the incident resulting in  death of  the said  deceased. Mr. Sushil Kumar has submitted  that  in  such  case,  the  conviction  under Section 302  read with  section 34  is not at all warranted. Mr. Sushil Kumar has submitted that it transpires from post-

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mortem examination  that sua  was not used and no injury was caused on  the head  of the  deceased by  lathis. Absence of such injuries  only indicate  that the accused did not share any common  intention to  cause the  death of  the deceased. Hence, the  conviction for murder with the aid of section 34 of the  IPC  was  wholly  unjustified.  He  has,  therefore, submitted that the court should discard the prosecution case and acquit  the appellants. In any event, the court will not accept the  prosecution case  in implicating  Malkiat Singh. Considering the  defence evidences  which amply  support the defence of Malkiat Singh that he was not present at the time of incident,  Malkiat should  be acquitted. Mr. Sushil Kumar has also  submitted even if the involvement of the other two appellants is  believed to be true they do not deserve to be punished under  Section 302 read with section 34 of the IPC. But if  the prosecution case about causing lathi injuries by them  on   the  deceased  is  accepted,  the  remaining  two appellants may be punished for causing grievous hurt.      The  learned   counsel  for  the  State  has,  however, disputed the  said contention  of Mr.  Sushil Kumar.  It has been submitted  by the learned counsel for the State that in the instant  case there  are three injured witnesses. Beside Bhagwan Kaur,  the  widow  of  the  deceased,  (PW  4).  who received simple injuries on her person, Piara Singh PW 5 and Gurdial Singh PW6 also received injuries at the hands of the accused. Such  injuries convincingly  establish the presence of the  injured witnesses  at the time of the incident. Such injuries also  completely rule out the defence case that the deceased had  climbed the  wall of  the house of the accused and on  account of  fall from  the wall  he had  died inside their house. The learned counsel for the State has submitted that in  the event of a fall from a wall which was only five feet high,  there would  not have  been serious  injuries as noted by the doctor. He has, submitted that the defence case was blatantly  false. It  has been  convincingly established that the incident happened at the spot mentioned in the FIR. The learned  counsel for  the state  has also submitted that immediately within  an hour  of the incident, FIR was lodged to the  Police Station  which was about 1 1/2 mile away from the place  of the  incident and  the learned Magistrate also received a  copy of  the FIR within two hours of lodging the FIR. It is highly improbable that within such a short time a false story  would be  cooked up  and FIR would be lodged on the basis  of a  false case.  The learned  counsel has  also submitted that  PW 5  Piara Singh and PW 6 Gurdev Singh both the injured  witnesses are  neighbors of the deceased. Their presence, at the time of the incident is quite probable. The learned counsel  has also  submitted that  the  evidence  of Bhagwan Kaur  PW 4  should not be discarded. The widow would have natural  inclination to  implicate the assailant of her husband and  it is  not reasonably  expected that  she would falsely implicate  the accused  even when  she had witnessed the incident  and suffered  injuries at  the  hands  of  the assailants. The  learned counsel  for  the  State  has  also submitted that  alibi of the accused Malkiat Singh about his going to  the police  out post  shortly before  the incident does not  stand scrutiny.  It is  with a  clever attempt  to create alibi,  that a  false report  was made at Basant Park out post  at a  later stage.  It could  not be  convincingly established by  Malkiat Singh  that the  said report  had in fact lodged  at 3  a.m. It  is also  highly improbable  that three neighbors  of his  Mohalla after noticing some persons in drunken  state and  creating nuisance  by abusing,  would come to  Malkiat Singh  at dead  of night  at  2-3  a.m.  by travelling 1  1/2 miles  only to  inform about such nuisance

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being created by some drunkards instead of going straight to the police  station and  informing the  police. particularly when police  station is  closer, being only at a distance of one  mile  from  their  mohalla.  The  learned  counsel  has submitted that  it  is  equally  improbable  that  the  said Malkiat Singh,  simply on  getting an  information that some persons were  creating disturbance  in intoxicated condition in the Mohalla, would come out of his house at that odd hour and personally  go to  the police  out post  just to lodge a report  of   the  information  received  by  him  from  some residents of  the mohalla.  It is  also significant  to note that in the said report to the police out post (Exhibit DO), Malkiat Singh  has given his address as house No.345, street No.5, Dashmesh Nagar, Ludhiana and not this residence at New Janta Colony  which according  to him  is his usual place of residence. It  is quite probable that having participated in the crime,  Malkiat Singh  wanted to cover up his complicity in the  offence and  in an  attempt to  create an  alibi, he introduced a false story and lodged a report to a police out post long  after the  incident. According to learned counsel for  the   State,  the   prosecution  case   has  been  very convincingly proved  by  clinching  and  reliable  evidences given by  the eye-witnesses. Both the learned Sessions Judge and also  the High  Court accepted  the prosecution case. In the aforesaid  circumstances, no  interference is called for by this Court and the appeal should be dismissed.      After giving  our anxious  considerations to  the facts and circumstances  of the  case and  the submissions made by the learned counsel appearing for the parties, it appears to us that  in the instant case the depositions of Bhagwan Kaur PW 4  and two  injured eye-witnesses,  namely. PW 5 and PW 6 are wholly reliable. Such depositions do not suffer from any inconsistency. In  our view,  conviction can be based on the said depositions of the eye-witnesses. The case sought to be made out  by the accused about the circumstances causing the death of  Bhanan Singh  is not  only  false  but  absolutely absurd. The  nature of  injuries sustained  by the  deceased also rules  out the  case of  the defence  that the deceased went to  the house  of the accused being drunk and attempted to go  inside the  house of  the accused by scaling the wall while abusing  the inmates  and threatening  to  molest  the daughters in  the house  of Labhu  Ram, but  suffered a fall from the  wall of  the house  of the accused and died at the spot on  receiving injuries on account of such fall from the wall. The  wall is  only five feet high and serious injuries suffered by  the deceased  could not have occurred by a fall from such  small height.  It is  a pity  that  the  wife  of accused Labhu  Ram was  examined by  the accused  to give  a false and absurd account of the defence case.      In our  view. the learned counsel for the State is also justified in contending that the alibi of Malkiat Singh that he had  been to  the said police out post at 3 a.m. to lodge an information  about the  presence  of  some  drunkards  in Dashmesh Nagar  Mohalla is  absolutely false  and should  be discarded. It appears to us that after the commission of the crime alleged against him, Malkiat wanted to create an alibi and lodged  a report at a later stage in the said police out post. It  appears from  the post-mortem examination that the deceased had  been brutally assaulted by the accused thereby causing 19  injuries on his person. The evidences adduced by the eye-witnesses  about the injuries caused to the deceased also tally with the post-mortem report and deposition of the doctor. In  our view,  such injuries  would  not  have  been caused if  the accused  did not intend to kill him. There is also evidence  that even  when the  deceased fell down after

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receiving injuries,  he  was  not  spared  but  the  accused further assaulted  him. Such  conduct of the accused is only consistent with an intention to kill the deceased.      Therefore, no  interference is  called for in this case and the  appeal is  dismissed. It  may be  stated here  that initially bail  was granted  by this  Court to  the deceased Labhu Ram  and the  appellant Malkiat  Singh. Later  on, the other appellants  had also  been granted bail by this Court. In view  of the  dismissal of  their appeal,  the appellants should be  taken into  custody forth with so as to serve out the sentences passed against them.  7