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PETITIONER: MALKIAT SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       07/08/1996

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) KURDUKAR S.P. (J)

CITATION:  1996 SCALE  (5)670

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE. J.      The judgment  and order dated December 6, 1984 rendered by the  Judge, Special  court, Ferozepur  in trial No. 42 of 1984 is  under challenge  in this  appeal. By  the  impugned judgment the  learned  Judge  convicted  and  sentenced  the appellant under  Sections 302  and 325  of the  India  Penal Code. 2 (a)  Shorn of details the prosecution case is that Darbara Singh (the  deceased) was  the driver  of a  truck and Uttam Singh (P.W.  5) was  its conductor . On March 31, 1984 at or about 7  P.M. when  they  were  consuming  liquor  near  the poultry farm of the appellant, he also came there and shared the drinks.  Mit Singh (P.W. 4) and Kartar Singh, father and brother of  Darbara Singh respectively, were then irrigating their land  nearby. After finishing his drinks the appellant went back to his poultry farm. He however came back a little later and  told Darbara  Singh that  he should  teach him  a lesson as  he had  forcibly taken away one of their cows. He then picked  up a Kassi and started assaulting Darbara Singh with it, On being so assaulted Darbara Singh fell down dead. In the mean time Uttam Singh had taken up a small toki which was lying  nearby and  attacked the appellant. The appellant then inflicted  a number  of blows  on Uttam  Singh with the Kassi, when  Mit Singh  and Kartar  Singh Rushed to the spot the appellant  filed away  with the  Kassi.  After  deputing Kartar Singh  to look  after the dead body of Darbara Singh, Mit Singh   went to Bagha Purana Police Station and lodged a first information  report whereupon  a case  was  registered against the  appellant. Uttam singh had in the meantime been taken to the hospital for treatment of his injuries. (b) After  registering the case, Madan Gopal (P.W.6) Station House Officer,  came to  the spot  accompanied by Mit Singh, Held inquest  upon the dead body and sent it for post mortem examination. He  seized some  blood-started earth  from  the spot and prepared a sealed packet in respect thereof. During

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investigation the  appellant was  arrested on  April 7, 1984 and pursuant  to his  statement made  before  S.I.  Mukhtiar Singh (P.W.7)  a Kassi  was recovered.  Mukhtar  Singh  took possession of  the Kassi and sent it to the forensic Science Laboratory for  examination. After  arrest the appellant was also sent to the hospital as there were some injuries on his person. After  receipt of the report of the Forensic Science Laboratory and  completion of  investigation Mukhtiar  Singh submitted charge-sheet  against the  appellant  and  in  due course the case was committed to the designated Court. 3.   The defence of the appellant, who pleaded not guilty to the charges  levelled against  him, was  that on the date of the incident  Uttam Sing  (P.W. 5 ) and the deceased Darbara Singh quarrelled with each other which ultimately ended in a mutual assault  and injuries  to both  of them. When he (the appellant )  tried  to  intervene  he  also  sustained  some injuries. He  then went  to Surjit  Singh of His village and informed him  about the  incident and he (Surjit Singh ), in his turn,  informed Mit  Singh. Accompanied  by Surjit Singh and Mit  singh he  went to  the spot  where the dead body of Darbara Singh was lying. They took Uttam Singh, who injured, in a  car to  the Police  Station to  narrate  the  incident Surjit Singh  took Uttam  Singh to  the  Hospital.  He  then narrated the incident to the police but instead of recording his version  they wrongfully  detained him  for several days and falsely implicated him. 4.   In support  of its  case the prosecution examined seven witnesses of  whom Mit  Singh (P.W. 4) and Uttam Singh (P.W. 5) figured  as eye-witnesses.  The appellant  also  examined Surjit singh  (D.W.1) to  prove his version of the incident. On  consideration  of  the  evidence  the  Designated  Court accepted the  version of  the prosecution  in preference  to that of  the defence  and accordingly  passed  the  impugned order of conviction and sentence. 5.   That Darbara  Singh met  with a  homicidal death stands conclusively proved  by the  unimpeachable testimony  of Dr. Jawahar Lal  Aggarwal (P.W.1)  who held  autopsy on the dead body of  Darbara Singh  on  April  1,  1984  and  found  ten injuries. The  doctor opined that the death was due to shock and haemorrhage as result of the injuries sustained and that the injuries  were sufficient  in  the  ordinary  course  of nature to  cause death. The evidence of Dr. Aggarwal further reveals that on March 31, 1984 at 11.30 P.M. he had examined Uttam Singh  (P.W. 5) and found three lacerated wounds and a swelling on his person which. according to him, were freshly caused  by   blunt  weapon.   Dr.  S.P.  Bansal  (P.W.2),  a Radiologist testified  that on April 4, 1984 Uttam Singh was x-rayed by  him and  the Skiagram  showed fractures  of both parietal and occipital bones. 6.   In  the   context  of  the  above  trustworthy  medical evidence the  question that  now falls for out determination is whether  the appellant  was responsible  for causing  the death of  Darbara Singh  and Grievous injuries on the person of Uttam  Singh (P.W. 5). As, earlier noticed, to prove this part of  its case  the prosecution rested primarily upon the evidence of  P.Ws. 4  and 5. On perusal of their evidence we find that  even though  they were  cross examined at length, nothing could  be elicited by the defence so as to discredit them. The  presence of  Uttam Singh  at  the  Material  time cannot be  disputed having  regard to  the fact  that he had sustained injuries  and also  the fact  that  the  appellant admitted his  presence and of his having sustained injuries. We do  not however  find any  material  in  support  of  his explanation. Though   Surjit  Singh (D.W.1)  came to support his version of the incident he was admittedly not present at

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the time  thereof and  , therefore,  he was not competent to speak about  the same.  It is  , of course, true that Surjit Singh testified  injuries while  fighting between themselves but in  absence of  any material  in support  thereof we are unable to  place any reliance thereupon. While on this point it is  pertinent to mention that the appellant’s, as well as D.W.1’s,  claim   that  they  went  to  the  Police  Station immediately after the incident put the Police did not record the appellant’s  statement is  belied by  the fact  that the appellant was  arrested a  week after  the incident.  On the contrary, we  find that  the evidence of Mit Singh Get ample corroboration from  the fact  that with in almost an hour of the incident  he lodged  the  F.I.R.  wherein  he  not  only detailed the  prosecution case  as to  how Darbara Singh and Uttam Singh  were assaulted by the appellant but also stated that the appellant had sustained minor injuries at the hands of Uttam  Singh when  he tried to rescue Darbara Singh . The Medical evidence  corroborates the ocular version of P.Ws. 4 and 5  and the recovery of Kassi Pursunt to the statement of the appellant  which was  found to contain human blood, when examined by  the Forensic  Science  Laboratory,  also  lends credence to the prosecution story. 7.   It was,  however, contended  on behalf of the appellant that even if it was assumed that the entire prosecution case was true  still then  it could  not be said that the offence committed by  the appellant  by causing the death of Darbara Singh was  one of the murder as it took place in course of a drinking brawl.  We  do  not  find  any  substance  in  this contention for there is not an iota of material on record to show that the appellant caused the death of Darbara Singh in A Sudden  fight in  the heat  of passion nor can it be said, considering the  nature, number  and situs  of the  injuries sustained by  Darbara Singh,  That in  causing his death the appellant did  not act in a cruel manner so as to entitle us to bring  the case  of the  appellant within Exception IV of Section 300 IPC.      On the Conclusions as above we dismiss this appeal. The appellant, who  is on  bail, will  now surrender to his bail bonds to serve out the sentence.