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CASE NO.: Appeal (crl.)  1313 of 2007

PETITIONER: SURESH SINGH & ANR

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT: 01/10/2007

BENCH: C.K. THAKKER & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 1313 OF 2007 ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 1661 OF 2007

C.K. THAKKER, J.

1.              Leave granted. 2.              The present appeal arises out of judgment and  order dated February 28, 2006 in Criminal Appeal No.50- DB of 1997 passed by the High Court of Punjab and  Haryana convicting the appellants and other accused  persons for various offences. The said appeal was filed by  the accused persons against their conviction and  sentence recorded by the Addl. Sessions Judge, Bhiwani  on December 12, 1996 and December 17, 1996 in  Sessions Case No. 5 of 1994. 3.              The case of the prosecution was that on June  29, 1993 between 7.00 and 8.00 a.m., one Daryav Singh  (PW3) and his two sons, Sajjan Singh (since deceased)  and Gaje Singh (PW5) were weeding out the wild grass  from their cotton field. Devender Singh (accused No.1),  Suresh Singh (accused No.3), Shamsher Singh (accused  No.5), Jai Bhagwan (accused No.2), Jai Pal Singh  (accused No.4), Jagbir Singh (accused No.6) and one Raj  Kumar (a juvenile whose case had been referred to the  Juvenile Court) came there. Devender Singh and Jagbir  Singh were armed with pharsas and other four accused  were armed with jaillies. Daryav Singh, Sajjan Singh and  Gaje Singh exhorted that they would teach a lesson to  the complainant side for getting the land of one Pooran  transferred in favour of the sons of Daryav Singh and  they would also uproot their Bajra crops. They also  stated that they would cause injuries to complainant side  and would obtain land from Pooran. PW3-Daryav Singh  told the accused persons not to quarrel and to go back.  The accused persons, however, refused to do so.  Deceased Sajjan Singh and PW5-Gaje Singh also told the  accused persons to refrain from giving abuses but  accused No.6 (appellant No.2) gave a pharsa blow on the  head of Sajjan Singh. Accused No.5 gave a jailly blow on  the neck of PW5-Gaje Singh. Accused No.3-Suresh Singh  (appellant No.1) gave a blow from the reverse side of jailly  on the shoulder of PW3-Daryav Singh. Raj Kumar also  administered a jailly blow on the right knee of PW3- Daryav Singh. Daryav Singh fell down. Accused No.2-Jai  Bhagwan gave a jailly blow to deceased Sajjan Singh on

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his shoulder. Accused No.5-Shamsher Singh also gave a  jailly blow to deceased Sajjan Singh which hit on his  back. Accused No.2-Jaipal gave a jailly blow to deceased  Sajjan Singh. Sajjan Singh fell down. Accused No.1- Devender Singh gave a pharsa blow on the left foot of  PW5-Gaje Singh. Accused No.3-Suresh Singh (Appellant  No.1) gave a jailly blow on the shoulder of PW5-Gaje  Singh. Accused No.4-Jai Pal Singh gave a jailly blow to  PW5-Gaje Singh. Accused No.5-Shamsher Singh gave a  jailly blow on the back of PW5-Gaje Singh. The injured  raised an alarm which attracted Rajbir and Raghbir who  rescued the injured. The accused then fled away with  their weapons. Rajbir and Raghbir took the injured to  General Hospital, Charkhi Dadri where PW11-Dr. S.C.  Gupta examined deceased Daryav Singh on the same day  i.e. on June 29, 1993 and found the following injuries.     "On general examination:- General condition  of  the patient was guarded. Patient was  conscious. B.P. Was 110/70 mm of Hg. (Blood from the nose and mouth was present).

1. An incised wound size 6 cms x 1.5 cms bone  deep on the middle of the skull extending  from the middle to the occipital region of the  skull. Margins were smooth and regular.  Hair parts were present inside the wound.  Profused bleeding was present. Advised  Xray skull AP and lateral view.

2. Reddish contusion on the anterior aspect of  the right thigh size 6 cms x 4 cms extending  above downward. Movements were painful  but were not restricted.

3. Reddish contusion on the dorsal aspect of  the left forearm near the wrist joint. It was  tender on touch and size was 4 cms x 2  cms. Movements were painful but not  restricted".

All the injuries were kept under observation.  Their probable duration was within 24 hours.  Injury No.1 was found with sharp weapon  while injuries Nos.2 and 3 were found with  blunt weapon. Exhibit P.J is the copy of  medico-legal report. Exhibit P.J/1 is the  pictorial diagram showing the seats of the  injuries.  

4.              Dr. Gupta also examined deceased Sajjan  Singh and found the following injuries. "On general examination:- General condition of  the patient was guarded. Patient was  unconscious. Pupils were sluggishly reacting  to light. Bleeding from the nose and mouth  was present. B.P. Was 110/70 mm of Hg.  Pulse was 96 per minute.

1. An incised wound size 8 cms x 1.5 cms into  bone deep on the middle of the skull  extending introposteriorly. Margins were  smooth and regular hairfullicles were cut  and embedded in the wound. Profused  bleeding was present. Advised X-ray skull  A.P and lateral view.

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2. Multiple reddish contusions of varying size  on the back at the various places.

3. Reddish contusion 6 cms x 3 cms on the left  calf region. Tender on touch. Movements  were painful but not restricted.

4. Reddish contusion on the top of the right  shoulder joint. Movements were painful.  Size was 4 cms x 2 cms extending above- onward towards the back."

Injuries Nos.1 and 4 were kept under  observation while injury Nos.2 and 3 were  found simple. Probable duration of all the  injuries was within 24 hours. Injury No.1 was  caused with sharp weapon while injuries  Nos.2, 3 and 4 were caused with blunt  weapon.

5.              Dr. Gupta also medically examined injured  Gaje Singh (PW5) and found the following injuries. "General condition was guarded. Patient was  conscious. No neurological deficient. Pupils  were normal and well reacting to light both  sides. B.P. Was 116/80 mm of Hg. Pulse was  86 per minute.

1. A punctured wound of size .75 in diameter  depth (?) on the left side of the neck laterally  4 cm below the angle of the mandible.  Margins were irregular. Fresh bleeding was  present. Injury was kept under observation  subject to Surgeon’s opinion.

2. Contusion on the dorsal aspect of the left  hand reddish in colour. Size was 3 cms x 2  cms. Tender on touch. Movements were  painful. Injury was kept under observation.

3. A lacerated wound on the middle of the left  hand on the palmer aspect. Bleeding was  present. Movements were painful but not  restricted.

4. An abrasion with contusion having clotted  blood on the left foot. Movements were  painful but not restricted.

5. A reddish contusion 3 cms x 12 cms  extending medio-laterally on the back.  Tender on touch."

Injuries Nos.1 and 2 were kept under  observation. Injuries Nos.3, 4 an d 5 were  found simple in nature. Probable duration of  all the injuries was within 24 hours. Injury  No.1 was found with blunt weapon while  injuries Nos.2, 3, 4 and 5 were found with  blunt weapon.

6.              After usual investigation, charge-sheet was  submitted. The matter was committed to the Court of  Sessions and charges were framed against the accused

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persons for offences punishable under Sections 147, 148,  149, 302, 323, 324 and 326 of the Indian Penal Code  (IPC). 7.              The accused pleaded not guilty to the charges  and claimed trial.  8.              The Addl. Sessions Judge (1st), Bhiwani  appreciated the evidence on record and held that the  charges against the accused persons were proved. He,  therefore, recorded an order of conviction against the  accused on December 12, 1996. In the operative part of  the order, the learned Judge observed: "As such, in view of the above discussion, I  find that all the six accused are guilty of the  offence under Section 302 read with Section  149 IPC for the murder of Sajjan Singh, son of  Daryav Singh; under Section 148 IPC for the  offence of rioting; under Sections 323, 324  read with Section 149 IPC for causing injuries  to Daryav Singh and Gaje Singh, PWs. I  convict all the six accused under these  sections accordingly".

9.              The learned Judge, after recording the finding  of guilt, adjourned the matter to December 17, 1996 for  the purpose of considering the quantum of sentence. On  that day, i.e. on December 17, 1996, he heard the  accused persons on quantum of sentence and passed the  following order. "Above mentioned six accused have been  convicted by me under Section 302 read with  Section 149 IPC, 324, 323 read with Section  149 IPC and 148 IPC vide my detailed  judgment of 12.12.1996. All the accused have  been heard on the question of sentence. All the  accused are young persons between the age of  25 and 35. They have stated that they are the  bread winners for the family and their  dependents. Taking into consideration all the  aspects of the case including the  responsibilities of the accused towards their  dependants and their young age etc., I take a  lenient view and sentence each accused to  imprisonment for life under Section 302 read  with Section 149 IPC. Each accused shall also  pay a fine of Rs.1000/- (Rupees one thousand  only) under the said sections. In default of  payment of fine, the defaulting accused shall  suffer further rigorous imprisonment for two  years.

2. Each accused is sentenced to rigorous  imprisonment for one year under Section 148  IPC.

3. Each accused is sentenced to rigorous  imprisonment for one year under Section 324  read with Section 149 IPC. Each of accused is  also punished with fine of Rs.500/- (Rupees  five hundred only) under the said sections. In  default of payment of fine, the defaulting  accused shall suffer further rigorous  imprisonment for three months.

4. Each of six accused is sentenced to the  rigorous imprisonment for six months under

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Section 323 read with Section 149 IPC.

5. All the substantive sentences against each  of the accused shall run concurrently.

6. The case property be disposed of according  to rules. File be consigned to record room".

10.             Being aggrieved by the order of conviction and  sentence, all the accused approached the High Court of  Punjab and Haryana by preferring an appeal. The  Division Bench of the High Court agreed with the finding  of guilt recorded by the trial Court. It observed that there  was no infirmity so far as conviction recorded by the trial  Court was concerned. The High Court, however, partly  allowed the appeal filed by the accused altering the  conviction from Section 302 read with Section 149 IPC to  Section 304, Part II and Section 304, Part II read with  Section 149 IPC. The High Court observed: "So, in this case, in our opinion, offence  under Section 304, Part II of the Code is made  out. Offence under Section 302 of the Code is  not made out.

The appeal is, therefore, partly allowed.  The impugned judgment and sentence order  are modified. Devender Singh (appellant) is  convicted under Section 304, Part II of the  Code. All the remaining appellants are  convicted under Section 304, Part II read with  Section 149 of the Code. Each of them is  sentenced to undergo R.I for seven years and  to pay Rs.1,000/- (each) as fine and in default  of payment of fine to further undergo R.I for  six months. Each of them is also convicted  under Section 148 of the Code and sentenced  to undergo R.I for one year. Each of them is  also convicted under Section 324 read with  Section 149 of the Code and sentenced to  undergo R.I for one year and to pay Rs.500/-  (each) as fine and in default of payment of fine  to further undergo R.I for three months.  Further, each of them is convicted under  Section 323 read with Section 149 of the Code  and is sentenced to undergo R.I for six  months. All the substantive sentences are  ordered to run concurrently. The amount of  fine, if realized, would be paid to the heirs of  Sajjan Singh.

Appellants Suresh Singh, Shamsher, Jai  Bhagwan, Jai Pal and Jagbir Singh are on bail.  The Chief Judicial Magistrate, Bhiwani, would  issue their warrants of arrest and would  commit them to jail to undergo the remaining  part of their sentence. Appellant Devender  Singh is confined in jail. The Chief Judicial  Magistrate, Bhiwani, would issue fresh  warrants of Devender Singh and send the  same to jail, where he is lodged".

11.             Being aggrieved by the above order, all the six  accused approached this Court. On September 14, 2006,  when the matter was placed before the learned Chamber  Judge, a prayer for exemption from surrendering was

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made which was rejected. Four weeks time was granted  to the appellants to file proof of surrender. 12.             It appears that thereafter on January 22,  2007, Criminal Miscellaneous Petition No. 1497 was filed  wherein it was stated that Devender Singh (accused No.1)  had expired.  Death certificate was also produced along  with the application. It was further stated that Jai  Bhagwan (accused No.2), Jai Pal (accused No.4) and  Shamsher Singh (accused No.5) be permitted to withdraw  from Special Leave Petition since all the three had  already undergone the sentence and special leave on  their behalf had become infructuous. The said  application was allowed by the Court and the prayer was  granted.  Thus, out of six accused only two have  remained viz., Suresh Singh-Appellant No.1 (accused  No.3) and Jagbir Singh-Appellant No. 2 (accused No.6). 13.             We have heard learned counsel for the parties. 14.             The learned counsel for the appellant  submitted that so far as the fatal blow to deceased Sajjan  Singh is concerned, it was administered by Devender  Singh (accused No.1). The trial Court, therefore, recorded  a conviction of all the accused for an offence punishable  under Section 302 read with 149, IPC.  An appeal against  the said order was allowed by the High Court and the  conviction from Section 302, IPC was altered to Section  304, Part II, IPC. Whereas Devender Singh was convicted  under Section 304, Part II, IPC, other accused were  convicted for an offence punishable under Section 304,  Part II, read with Section 149, IPC. All the accused were  ordered to undergo rigorous imprisonment for seven  years. During the pendency of the matter in this Court,  however, Devender Singh (accused No. 1) died and  accordingly appeal, so far as accused No.1-Devender  Singh was concerned, got abated. Regarding Suresh  Singh\027appellant No.1 and Jagbir Singh\027appellant No. 2  (accused Nos. 3 & 6 respectively), they had been  convicted by the trial Court for an offence punishable  under Section 302 read with Section 149, IPC and by the  High Court, for an offence punishable under Section 304,  Part II read with Section 149, IPC. The counsel, therefore,  submitted that the conviction as recorded by the High  Court against the appellants is not for a substantive  offence punishable under Section 304, Part II, IPC but as  members of unlawful assembly for an offence punishable  under Section 304, Part II read with Section 149, IPC. It  was, therefore, submitted that even if this Court is of the  view that an order of conviction recorded by the trial  Court and confirmed by the High Court is in consonance  with law and the appellants are not entitled to acquittal,  liberal view may be taken in awarding punishment. It  was also submitted that the appellants were young when  the offence was committed. They are the only bread  winners of the family and the other family members are  dependent on them. Accused No.1 is dead and accused  Nos. 2, 4 & 5 have already undergone the sentence  imposed on them. All these considerations are relevant  for reducing the sentence. 15.             The learned counsel for the respondent-State  submitted that the order passed by the trial Court and  modified by the High Court calls for no interference. 16.             Having heard the learned counsel for the  parties, in our opinion, it cannot be said that by  recording a finding of guilt against the appellants, any  illegality can be said to have been committed either by  the trial Court or by the appellate Court. Both the Courts

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considered the evidence on record, including substantive  evidence of two injured eye-witnesses, PW3-Daryav Singh  and PW5-Gaje Singh and believed them. Injuries have  been established through the evidence of PW11\027Dr. S.C.  Gupta. We are, therefore, of the opinion that both the  Courts were right in recording a finding of guilt against  the appellants. 17.             Regarding sentence, however, we are of the  view that the learned counsel for the appellants is right  in submitting that neither of the appellants has been  convicted for a substantive offence punishable under  Section 304, Part II, IPC. Both of them were convicted  under the vicarious liability mentioned in Section 149,  IPC and they were accordingly convicted for an offence  not amounting to murder punishable under Section 304,  Part II read with Section 149, IPC along with other  offences. In our opinion, therefore, ends of justice would  be met if instead of rigorous imprisonment for seven  years as imposed by the High Court for the said offence,  the appellants are ordered to undergo rigorous  imprisonment for five years.  Conviction, sentence and  fine for other offences, imposed on the appellants by the  High Court call for no interference and accordingly that  part of the order is confirmed. 18.             For the foregoing reasons, the appeal is partly  allowed. The conviction recorded by the High Court  against the appellants for an offence punishable under  Section 304, Part II read with Section 149, IPC is  maintained, but they are ordered to undergo rigorous  imprisonment for five years instead of seven years. 19.             The appeal is accordingly disposed of.