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PETITIONER: THE STATE OF PUNJAB

       Vs.

RESPONDENT: AMARJIT SINGH & ORS.

DATE OF JUDGMENT:       24/10/1996

BENCH: M.K. MUKHERJEE, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      S.P. KURDUKAR, J      The State  of Punjab  on obtaining  Special  Leave  has filed this  Criminal Appeal  challenging  the  legality  and correctness of  the judgment  and order  dated  January  20, 1988, passed  by the  Punjab  and  Harayana  High  Court  at Chandigarh.  The  respondents-four  accused  were  tried  in Sessions Case  No. 52/10  of 1986  for  committing  offences punishable under  Sections 302/323  read with  Section 34 of the Indian Penal Code. The Addl Sessions Judge, Ludhiana, on conclusion of the trial by his judgment and order dated 19th September, 1986  convicted the  respondents (A-1 to a-4) for the offences  punishable under  Section 302/34 of the Indian Penal Code  and sentenced  Amarjit Singh (A-1), Surjit Singh (A-3) and Pritam Singh (A-4) to suffer imprisonment for life and to pay a fine of Rs. 100/-; in default to undergo RI for one month,  as also  under Code and sentenced them to suffer RI for  one  month.  Both  the  substantive  sentences  were ordered  to   run  concurrently.   However,  as  the  second appellant Daljit  Singh(A-2) was  found to be below 16 years of age  at the  time of  occurrence, he was dealt with under Section 34(1)  of the  East Punjab  Children Act,  1949  and directed to be kept in Borstal Jail, Faridkot and the matter was referred  to the State Government under Section 34(2) of the said Act for passing appropriate orders. Being aggrieved by this  order of  conviction and  sentence, the appropriate orders. Being  aggrieved by  this order  of  conviction  and sentence, the  respondents  preferred  Criminal  Appeal  No. 566/DB of  1986 to  the High  Court which partly allowed the same altering  the conviction  form Section  302/34  IPC  TO 325/34 IPC  and sentenced  A-1, A-3 and A-4 to suffer RI for three years  and to  pay a fine of Rs. 1,000/- or in default to undergo  further rigorous  imprisonment  for  six  months each. However,  the conviction  and sentence  under  Section 323/34 of  the Indian Penal Code against them was sustained. The direction  as regards  A-2 was  confirmed. It is against this judgment  and order passed by the High Court, the State of Punjab has filed this appeal. 2.    The  prosecution story  as unfolded at the trial is as under :-

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    On December  14, 1985  at about  4 or  5 p.m., Mukhtiar Singh-the complainant (PW 7), his father Chhina Singh (PW 8) and uncle  Bakhtawar Singh  (since  deceased)  had  gone  on tractor-trolly to bring carkande reeds from the Sutlej river in the  area of  village Bhundri.  Mukhtiar Singh (PW 7) was driving the tractor which was stopped under the kikkar trees at a  distance of 44/45 karams away from the chhans of Fauja Singh. The  land of  the complainant  was at  a distance  of 14/15 karams.  The complainant  and his  associates saw  the accused burying  the tube  containing the  illicit liquor in his peas  crop field  and were  armed with lathis. Bakhtawar Singh went  to the accused and asked them  to stop doing the illegal activities  in his field whereupon Pritam Singh from his annoyed  and caught  hold of  Bakhtawar Singh  from  his waist. Thereafter Amarjit Sigh (A-10 gave two lathi blows on the head  of Bakhtawar  Singh (A-3)  who also  assaulted him with lathi  blows. Bakhtawar Singh sustain bleeding injuries and fell  down on  the ground.  A-1 to  A-3 even  thereafter continued their  assault. Mukhtiar  Singh (PW 7) who went to rescue him  with lathis.  After hearing  the alarm raised by Mukhtiar Singh  (PW 7),  Chhina Singh  (PW 8) reached at the spot whereupon  the accused  fled away.  The injured persons were then  removed to  a hospital  at Sidhwan  Bet by Chhina Singh on tractor-trolly where Dr. Mrs. Pratigya Devi treated them. Being  a medico-legal case, an information was sent to ASI Gurdial  Singh (PW  12), who  reached the spot, prepared the site  plan and  collected blood  stained earth  under  a panchanama. Since  the  condition  of  Bakhtawar  Singh  was serious, he  was shifted  to the  C.M.C. Hospital, Ludhiana, where he succumbed to his injuries on 17th December, 1985 at 5.40 a.m.  ASI Gurdial  Singh  (PW  12)  then  recorded  the statements of various persons. On receipt of the information of the  death of Bakhtawar Singh, SI Amar Singh (PW 13) went to the hospital, held the inquestand forwarded the dead body to the  mortuary for  autopsy. The  accused were arrested on 17th December,  1985. On  conclusion of the investigation, a charge sheet  came to  be filed  against the respondents for offences punishable  under Sections 302/34 and 323/34 of the Indian Penal  Code for  committing the  murder of  Bakhtawar Singh and also causing injuries to Mukhtiar Singh (PW 7). 4.    The  accused denied  the accusations  levelled against them  and   according  to   them,  they  have  been  falsely implicated in  the present crime. They also denied that they were engaged  in an  illicit  liquor  do  any  such  illegal activity.  They  pleaded  that  they  are  innocent  and  be acquitted. 5.    In  support of  its  case,  the  prosecution  examined Mukhtiar Singh  (PW 7)  and Chhina Singh (PW 8) as witnesses of fact.  Besides this evidence, prosecution examined  three medical experts  of whom  Dr. Shamsher Singh (PW 5) held the autopsy on the dead body of Bakhtawar Singh. 6.   As  indicated  above,  learned  Addl.  Sessions  Judge, Ludhiana, convicted  the respondents A-1 to A-4 for offences punishable under  Sections 302/34  and 323/34  of the Indian Penal Code, however, on appeal by A-1 to A-4, the High Court partly allowed the same and altered the conviction of A-1 to A-4 from Section 302/34 IPC TO 325/34 IPC and sentenced A-1, A-3 and  A-4 to  suffer RI for three years and to pay a fine of Rs.  1,000/- and in default to undergo further RI for six months. Their  conviction and  sentence under Section 323/34 of the  Indian Penal  Code was,  however, maintained.  It is this order  of High  Court which  is the  subject matter  of challenge in this Criminal Appeal. 7.     Mr.  Ranbir  Yadav,  Learned  Advocate  appearing  in support of  this appeal  urged that the impugned judgment of

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the High  Court is  unsustainable in  law. After having held that A-1  to A-4  had a common intention to cause assault on Bakhtawar Singh  and looking  to the  nature of the injuries deposed to  by three medical experts, the offences could not have been  altered from  Section 302/34  IPC  to  one  under Section 325/34  of the  Indian Penal  Code.  He,  therefore, urged that  the impugned  judgment and  order be quashed and set aside and  that of the trial court be restored. 8.   Mr.  P.N.  Puri,  Learned  Counsel  appearing  for  the respondents supported the impugned judgment. 9.   On careful  scrutiny of  the judgments  of  the  courts below and  after going  through  the  oral  and  documentary evidence on   record,  we are  satisfied that  the  impugned judgment to the extent of altering conviction from 302/34 to 325/34 IPC  is totally  unsustainable. The High Court in its cryptic judgment  as regards  the nature  of an  offence has concluded as under :-      "It emerges  from  the  prosecution      evidence that  Pritam Singh accused      caught  hold   of  Bakhtawar  Singh      deceased from his waist and Amarjit      Singh,  Daljit   Singh  and  Surjit      Singh accused  caused   injuries to      him with their lathies on his head.      There is  no evidence   to  show as      to which  of the  appellants struck      the fatal  blow to  the   deceased.      Having regard,  therefore,  to  the      circumstances in  the present  case      and  the  nature  of  the  injuries      sustained by  the deceased,  we are      unable  to  agree  with  the  trial      court that  the  case  falls  under      Section 302  read with  Section  34      IPC. There  is no  evidence of  any      intention  on   the  part   of  the      appellants either to cause death of      the  deceased   or  to  cause  such      injuries of  which  the  appellants      could have  the knowledge  that  it      was likely  to cause death although      it  cannot   be  doubted  that  the      appellants had the common intention      to  cause   grievous  hurt  to  the      deceased with  lathies.  Thus,  the      offence falls under Sections 325/34      and not under Section 302/34 IPC." 9.    The  above reasoning  of the  High  Court  is  totally contrary to  the evidence of Mukhtiar Singh (PW 7) and  that of Chhina  Singh (PW  8). It is not only misreading of their evidence but totally misconstruing what they have testified. The very nature of the assault and the injuries sustained by Bakhtawar singh  (deceased) unmistakably  prove  the  common intention of  the assailants.  The common intention is to be gathered from  the proved  facts/circumstances. The evidence of these  two witnesses  of the  fact clearly  indicate that Pritam Singh (A-4) held Bakhtawar Singh from his waist which facilitated A-1  to A-3 to cause assault on him with sticks. Even after  Bakhtawar Singh  fell down, A-1 to A-3 continued to assault  him. In  these circumstances, there could not be better evidence  of common intention. Surprisingly, the High Court observed  that there  was no  intention and/or  common intention shared  by A-1  to A-3  to commit  the  murder  of Bakhtawar Singh.  Dr. Shamsher  Singh (PW  5) who  held  the autopsy on  the dead  body testified that the cause of death

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was  due  to  shock  and  haemorrahage  resulting  from  the fracture of  skull bones  which sufficient to cause death in the ordinary course of nature. He further testified that all these injuries  were  ante  mortem.  In  the  face  of  this evidence on  record, we are of the considered view  that the High Court  was totally wrong in altering the convictions of A-1 to A-4 from Section 302/34 IPC TO Section 325/34 IPC. It also needs  to be  mentioned that  there was no challenge to the fact that Bakhtawar Singh died a homicidal death. In the facts and  circumstances of this case, we have no hesitation in coming  to the  conclusion    that  the  High  Court  has committed  a   serious  error  of  law  while  altering  the conviction of respondents A-1 to A-4 from Section 302/34 IPC to Section 325/34 of the Indian Penal Code. 10.   In  the result,  the appeal  is allowed.  The impugned judgment and  order of the High Court dated January 20, 1988 to the  extent of altering the conviction of the respondents from 302/34  to 325/34 IPC is quashed and set aside and that of the  learned Addl.  Sessions Judge,  Ludhiana, dated 19th September, 1986  is restored.  A-1, A-3  and A-4  who are on bail, shall  surrender to their bailbonds forthwith to serve out the remainder of their sentences.