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PETITIONER: RAGHUBIR SINGH & ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       13/03/1996

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) PARIPOORNAN, K.S.(J)

CITATION:  JT 1996 (4)     1        1996 SCALE  (2)689

ACT:

HEADNOTE:

JUDGMENT:                             WITH               CRIMINAL APPEAL NO. 436 OF 1985 Santokh Singh V. Amarjit Singh & Ors.                       J U D G M E N T      Five accused,  namely, Amarjit  Singh, Raghubir  Singh, Jagat Singh,  Joginder Singh  and Ranbir  Singh were sent up for trial  before the  learned Addl.  Judge, Special Courts, Hoshiarpur in  connection with  the murder  of Balwant Singh and for  causing injuries  to Santokh  Singh PW6.  They were tried for  various offences.  Raghubir  Singh  and  Joginder Singh were  convicted for  an offence  under Section 302 IPC while their  remaining  co-accused  were  acquitted  of  the offence under  Section 302/149  IPC. All  the  accused  were convicted for  an offence  under Section  148 IPC.  Joginder Singh was  also convicted  for an  offence under Section 325 IPC while  the rest  of the  accused for  an  offence  under Section 325/149  IPC. Raghubir  Singh was  convicted for  an offence under  Section 323  IPC and  the rest of the accused for an  offence under Section 323/149 IPC. Amarjit Singh who is a  law graduate  and a  practising advocate  and had been attributed only  a ’lalkara’  at the time of assault, was in view of  his previous  record and educational qualifications directed to  be released  on probation  for a  period of one year on  furnishing a bond in the sum of Rs. 5000/- with one surety of  the like amount undertaking to maintain peace and be of  good behaviour  and to  appear  and  to  receive  the sentence as  and when  required by  the  court  during  that period. Raghubir  Singh and Joginder Singh were sentenced to undergo life  imprisonment and  to pay  a fine of Rs. 5000/- and in  default R.I.  for one  and a half years each for the offence under  Section 302  IPC.  Joginder  Singh  was  also sentenced to  R.I. for  one year under Section 325 IPC while the rest  of the  accused were  sentenced to  R.I. for  nine months each  under Section  325/149 IPC.  Raghubir Singh was

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sentenced to three months R.I. for the offence under Section 323 IPC  and the  rest of the accused were also sentenced to three months R.I. under Section 323/149 IPC. All the accused were further  sentenced to R.I. for six months under Section 148 IPC.  The substantive  sentences  of  imprisonment  were directed to run concurrently and the fine on realisation was directed to  be paid  to  the  heirs  of  Balwant  Singh  as compensation.      The appellants  have filed this appeal under Section 14 of the  Terrorists Affected  Areas (Special Courts) Act 1984 challenging their  conviction and  sentence as  recorded  on 6.3.1985.  State  had  also  filed  an  appeal  against  the acquittal of  the accused  of the offence 302/149 IPC, being Crl. A.  No.526/85. That appeal, however, was dismissed by a Division Bench  of this  Court on 27.2.1987. The complainant Santokh  Singh   has  filed  Crl.A.  No.436/85  against  the acquittal  of  the  three  accused  for  the  offence  under Sections 302/149  IPC. Both these appeals are being disposed of together.      According to  the prosecution  case, sometime in August 1984  Harbans   Singh  PW   received  a  threatening  letter allegedly  from   some  extremist   on  which  he  moved  an application to  the District  Magistrate for  permission  to carry his own weapon for self defence. Jagat Singh appellant moved  an   application  on   14.8.84  before  the  District Magistrate opposing the request of Harbans Singh and on that account the  relations between Harbans Singh on the one hand and Jagat  Singh and Raghubir Singh who are brothers, on the other hand  became strained.  Because of  the receipt of the letter, Harbans  Singh  and  Balwant  Singh  started  living together. On  11.9.1984 an  agreement appears  to have  been arrived at  between Jagat  Singh appellant and Harbans Singh PW for  a passage  through a  plot. This led to straining of relations between  Joginder Singh  and  his  brother  Ranbir Singh (appellants)  on the one hand and Harbans Singh on the other. It  is also  alleged that  Santokh Singh  PW6 brought about a compromise between Jagat Singh and Dalip Singh which was resented  to by  the accused. These were the motives for the assault as alleged by the prosecution.      At about  10 p.m.  on 11.9.84  Santokh Singh, Nambardar was returning  from his  tubewell and he met Tarsem Singh PW near Octroi  Post on  the Jallandhar  Hoshiarpur road.  They started talking  to each  other. In  the meantime,  Raghubir Singh appellant  armed with  a gandassi  reached  there  and pulling down  the turban  of Santokh Singh PW6 told him that he was  nobody to  bring about  any compromise between Jagat Singh and  Dalip Singh.  Santokh Singh  PW6 retorted that he had not  done any  wrong and picked up his turban and placed it on  his head.  Raghubir Singh  appellant  then  raised  a lalkara on  which Jagat  Singh and Joginder Singh armed with gandassis and  Ranbir Singh  armed with  a datri came there. There were two other unknown persons also accompanying them. Amarjit Singh  (co-accused) arrived  on a  scooter and after parking the  same raised  a lalkara  that Santokh  Singh and Tarsem Singh  should not  be allowed to go and that he would take care  of the  matter. On this Raghubir Singh is alleged to have  given a  gandassi blow, from its wrong side, on the right  forearm  of  Santokh  Singh  PW6  while  Jagat  Singh appellant gave a gandassi blow by its wrong side on his left thigh. All  the accused  thereafter caused  injuries to  him with their  respective weapons  on his  left arm and fingers and other  parts of  the body, including his right thigh and the right  side of  his head.  In the  meanwhile,  Nambardar Balwant Singh, deceased, and Harbans Singh PW7 reached there and  they   also  witnessed  the  assault.  They  asked  the

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appellants not  to beat Santokh Singh on which Amarjit Singh raised a  lalkara saying  that  since  the  real  enemy  had arrived, he  should not  be spared  and allowed  to go  away unhurt. Raghubir Singh thereupon gave a gandassi blow on the head of Balwant Singh while Jagat Singh gave a gandassi blow from its  wrong side  on the  back of  the head  of  Balwant Singh. On  receipt of the injuries, Balwant Singh fell down. The appellants  left the  place along  with their respective weapons after  Harbans  Singh  PW7  escaped  to  his  house. Balwant  Singh  succumbed  to  the  injuries  at  the  spot. Chowkidar Lakhwant  Singh arrived  at the  spot and  carried Santokh Singh  PW6 injured  to  Civil  Hospital,  Hoshiarpur where he  was  medically  examined  and  as  many  as  seven injuries  were   found  on  his  person.  According  to  Dr. T.S.Verma, all  the injuries  had been  caused with  a blunt weapon. According  to the Radiologist’s report, injury No.6, which was  a defused  swelling of the upper one third of the left thigh,  was declared  as grievous. Sub-Inspector Sardul Singh PW  recorded the statement of Santokh Singh on arrival at the Hospital on receipt of the police ruka, after Santokh Singh was  declared fit  to make  a statement, and forwarded the same,  with his  endorsement, to the police station. The formal FIR  was registered  on 12.9.1984  at 12.55  a.m. The investigation was  taken in hand by Sardul Singh who went to the spot  from the  hospital. The dead body of Balwant Singh was found  lying there. He prepared the inquest report Ex.PC and the dead body was sent for post mortem examination which was conducted  by Dr. Jagmohan Singh on 12.9.84 at 9.15 a.m. Ths following injuries were found on the deceased:           i) Incised  wound 10 cm x 6 cm      x 7.4  cm on  the forehead.  It was      placed  horizontally/oblique.   The      frontal  bone  was  fractured.  The      brain matter was coming out.           2) Reddish  contusion mark  on      the top of right shoulder joint. It      was  4.8   cm  x.12   cm.  It   was      obliquely placed.           3)  Reddish   contusion   mark      14.4. cm  x 1.4  cm on the front of      chest in  the upper  part.  It  was      obliquely   placed   going   upward      towards the right side.           4) There was swelling of scalp      in the  region of  parietal  region      left side  and top of skull. It was      12.4 cm x 3.2 cm.           5)  Three  contusions  red  in      colour in  the front of abdomen and      right side  near the  illiac crest.      It was 4 cms in diameter."      According to  the medical opinion, the death of Balwant Singh was  caused due to shock and haemmrohage on account of the injuries  received by  the deceased  which were all ante mortem. The doctor further opined that injuries Nos. 1 and 4 were sufficient  to cause  death in  the ordinary  course of nature individually  and collectively. It was further opined that the  time  gap  between  the  injuries  and  death  was immediate and  between death and post mortem about 12 hours. According to  Doctor injury  No.1 had been caused by a sharp weapon while  all other  injuries had  been caused  by blunt weapon.      SI Sardul  Singh PW  undertook  the  investigation  and collected blood  stained earth  and prepared  the rough site plan. The  clothes of the deceased which had been brought by

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Constable Madan Lal were also sealed into a parcel and taken into  possession.   Raghubir  Singh   and   Joginder   Singh appellants surrendered  before the court on 14.9.84 and were taken into  custody. On  17.9.84 ASI Ajit Singh interrogated Raghubir Singh  who made  a disclosure  statement leading to the recovery of a gandassi from a heap of stock lying in his field. Joginder  Singh also  made a  disclosure statement on 17.9.84 and  led to  the recovery  of a  gandassi. Both  the weapons gandassi EX.P1 recovered on the disclosure statement of Raghubir  Singh  and  gandassi  Ex.P2  recovered  on  the disclosure statement  of Joginder  Singh were  found  to  be blood stained. They were seized and sealed. ASI Jagjit Singh interrogated Jagat  Singh and  Ranbir Singh  on 21.9.84  and they also made disclosure statements leading to the recovery of a  gandassi and  a Datri  concealed by them respectively. Gandassi Ex.P3  was recovered at the instance of Jagat Singh while Datri  Ex.14 and  khundi Ex.P5  were recovered  at the instance   of   Ranbir   Singh.   On   completion   of   the investigation, the  appellants were  sent up  for trial  and were convicted and sentenced in the manner noticed above.      Santokh Singh  PW6 is  the injured  eye-witness. He has deposed to  not only  about the  motives but  also about the assault both  on himself  and on Balwant Singh. He has fully supported the prosecution version as detailed in the earlier part of  this judgment.  His evidence  is clear  and cogent. According to  Dalip Singh  PW10 when  he arrived at the spot after the  occurrence he had found Santokh Singh PW6 present there along  with Lakhwant Singh Chowkidar and the dead body of Balwant  Singh.  According  to  him,  Santokh  Singh  PW6 narrated the  occurence to  him and  PW6 was  removed to the hospital by  Lakhwant Singh  Chowkidar in  the rickshaw. The submission of  learned counsel  for the  appellants that all the 3/4  alleged motives  were minor  and not  sufficient to induce the  appellants to commit the murder of Balwant Singh does  not   impress  us.   The  motives  may  be  minor  but nonetheless they  did provide  an occasion for attack on the deceased by  the appellants. That apart, even in the absence of motive,  the guilt  of culprits  can be  established in a given  case   if  the   other  evidence  on  the  record  is trustworthy and  the absence  of proof  of motive  has never been considered  as fatal  to the prosecution case where the ocular evidence  is found  reliable. The evidence of Santokh Singh PW6  is straight  forward and  consistent. He being an injured witness  would not leave out his real assailants and implicate the appellants falsely. His evidence has impressed us.  Besides,   the  evidence  of  PW6  has  received  ample corroboration from  the medical  evidence  provided  by  Dr. Jagmohan Singh  PW1, Dr. T.S.Verma, PW2, and Dr. C.L.Thukral PW3. The  statement of Santokh Singh PW6 was recorded at the hospital at  about mid-night and it was on the basis of that statement that  the formal FIR came to be registered. In the FIR itself  the genesis  of the occurrence and the manner of assault have been clearly detailed. The names of the accused as well  as the weapons with which they were armed have also been  clearly   stated.  This   prompt  FIR  containing  all necessary details  also lends  sufficient  credence  to  the statement of PW6 Santokh Singh made at the trial. As already noticed Dalip  Singh PW10  and Lakhwant Singh Chowkidar have fully corroborated  the statement  of Santokh Singh not only with regard  to the  second part  of the occurrence but also about the  manner in  which the first part of the occurrence relating to  the attack  on Santokh  Singh PW took place. We also do  not find  any force  in the  submission of  learned counsel for  the appellants that since the attack on Balwant Singh was  at the spur of the moment therefore PW6 could not

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have witnessed  the occurrence  and as  such  he  is  not  a reliable witness. PW6 Santokh Singh was very much present at the spot  and it  was in  his presence  that  Balwant  Singh deceased and  Harbans Singh  PW  arrived  at  the  spot  and advised the  accused not  to attack  PW6  and  thereafter  a lalkara was  raised that  since the real enemey had arrived, he should not be spared. Nothing has been brought out in the course of  cross-examination of  PW7 which  may  create  any doubt about the manner in which Balwant Singh had arrived at the spot  and was attacked in the presence of Santokh Singh. There was  admittedly  party  faction  in  the  village  and Amarjit Singh  was heading  one faction, while Harbans Singh PW7 belonged to the other faction. The lalkara regarding the arrival of  the enemy  thus stands explained. The recoveries of the  weapons from  Raghubir Singh,  Joginder Singh, Jagat Singh and  Ranbir Singh  have been  amply  proved  from  the testimony of  Swaran Singh  PW11 ASI Baldev Raj PW12 and ASI Ajit Singh PW13. These recoveries also lend assurance to the testimony of  Santokh  Singh  PW6  and  Harbans  Singh  PW7. Nothing has  been brought  out in  the cross-examination  of either of  these two  witnesses which  may in any way create any doubt  about their  truthfulness. The  trial court while dealing with the attack on Santokh rightly observed:      "From this  evidence, therefore, it      has  to   conclude  that   all  the      accused were present at the time of      the  occurrence   with  the  common      motive to  attack Santokh  Singh PW      and  on   the  lalkara  of  Amarjit      Singh,  accused,   the  others  co-      accused actually  attacked him  and      caused  the   injuries  which  were      actually found on his person during      the medico  legal  examination.  In      this situation  the accused  formed      an   unlawful   assembly   carrying      weapons  which  were  used  in  the      commission  of   the   offence   qua      Santokh  Singh   and  consequently,      they became  liable  under  Section      148  IPC.   Out  of   the  injuries      sustained by  Santokh Singh  during      the  occurrence,  injury  No.6  was      found to be grievous with a facture      of the  left thigh. This injury was      caused by  the wrong  side  of  the      gandasi and  the blow is attributed      to Joginder Singh accused."      We agree with the above findings of the trial court.      Our critical  analysis of  the evidence  on the  record shows that  the common  object of  the unlawful assembly was limited to the attack on Santokh Singh and did not extend to cover the  murder of Balwant Singh. Balwant Singh apparently received the  injuries when  he intervened during the course of the occurrence and those injuries proved fatal. The trial court rightly  found  that  in  the  established  facts  and circumstances of  the case,  the accused  who  had  actually caused the  injuries to Balwant Singh alone were responsible for the murder of Balwant Singh and that others could not be held liable either with the aid of Section 149 or Section 34 IPC.      There was  no serious  dispute either  before the trial court or  before us  that Balwant Singh had died at the time and place  as alleged  by the  prosecution on account of the injuries sustained  by him.  As per  the post  mortem report

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Ex.PA, the  deceased had  five injuries  out of  which three were contusions,  one was  an incised  wound on the forehead and another a swelling in the parital region. Injuries No. 1 and 4  were opined  by Dr. Jagmohan Singh to be individually and collectively sufficient in the ordinary course of nature to cause  death. According  to the  ocular testimony  of PW6 injury No.1  is attributed to Raghubir Singh appellant while injury No.4  is  attributed  to  Joginder  Singh  appellant. Santokh Singh  PW6 has  categorically deposed  that Raghubir Singh had  given the  gandasi blow  on the  head of  Balwant Singh from  its sharp  side while Joginder Singh had given a blow with the gandasi from the wrong side on the back of the head of  Balwant Singh,  who fell  down thereafter  and  the other accused  caused  further  injuries  on  the  deceased. Indeed, in the FIR Ex. PM Santokh Singh PW6 had specifically attributed the  first blow  to Raghubir Singh and had stated that the  rest of  the accused  also caused  injuries to him from the  wrong and  right side of their respective weapons. The injury  attributed to Joginder Singh is not specifically mentioned by  Santokh Singh  in the  statement  Ex.PM,  Both Harbans Singh  PW7 and  Santokh  Singh  PW6  at  the  trial, however, clearly deposed that injury No.4 had been caused by Joginder Singh.  Nothing has  been suggested  in the  cross- examination  of  Harbans  Singh  PW7  regarding  the  injury attributed to Jogindar Singh appellant. The mere omission in the FIR  of injury No.4 having been caused by Joginder Singh appellant  cannot  in  any  way  improve  the  case  of  the appellants and  discredit Santokh  Singh PW6.  We agree with the trial  court that  the two  fatal blows to Balwant Singh had been  inflicted by  Raghubir Singh  and  Joginder  Singh appellants.  So  far  as  the  defence  of  the  appellants, including the  statement of  Ram Prasad DW1, the trial court has rightly  considered and  found the same not to be worthy of any credence. We agree.      Faced with  the unimpeachable  evidence on  the record, learned counsel for the appellants submitted that appellants Joginder Singh  and Raghubir Singh could not be said to have intended to  cause the  death of Balwant Singh and therefore the offence  would not fall under Section 302 IPC. We cannot agree. Undoubtedly,  Balwant Singh  received the fatal blows when he intervened but the injuries inflicted on him were intentional and not accidental. The blows were given to him with great force on vital parts of his body. Keeping in view the seriousness of the injuries, the Weapons used and the seat of the injuries, the offence committed by these two appellants would squarely fall under Section 302 IPC.      Thus, for  what has  been said above the conviction and sentence of  the appellants for various offences as recorded by the  trial court  are well founded and do not suffer from any infirmity  whatsoever. There  is no merit in this appeal which consequently fails and is dismissed.      Coming now  to the Criminal Appeal No.436 of 1985 filed by the complainant, we do not find any force in the same and particularly in  view of  the dismissal  of  Crl.A.No.526/85 decided on  27.2.1987 filed  by the State, for the very same relief, this appeal must fail and is hereby dismissed.      The appellants Raghubir Singh and Joginder Singh are on bail. Their  bail bonds  are cancelled.  They shall be taken into custody to undergo the remaining part of the sentence.