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PETITIONER: BOOTA SINGH & ORS.

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT:       12/12/1996

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

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      M.K. MUKHERJEE, J.      The ten  appellants before us, (hereinafter referred to as A1  to A10  respectively) were  tried by  the  Additional Sessions Judge,  Ludhiana for  criminal conspiracy, rioting, murder and  other  related  offences.  The  trial  ended  in conviction and sentence of A1 under Sections 302, 324/34 and 323/34 CPC,  A2 to  A4 under  Sections  302/34,  324/34  and 323/34 IPC,  A5 to  A8  under  Section  324  CPC,  A9  under Sections 326  and 323  CPC and  A10 under  Sections 326 IPC. Against their  convictions and  sentences A1 to A4 filed one appeal and  A5 to A10 another. By a common judgment the High Court dismissed  their appeals  and aggrieved  thereby  they have preferred these appeals after obtaining special leave. 2.   Bereft of details the prosecution case is as follows:      (a) On August 3, 1988 at or about 6      A.M.  Swaran   Singh   (P.W.6),   a      resident of village Jainpur, called      on his  brother Charan  Singh  (the      deceased), who  used to live in the      adjoining house. A little later A3,      who lived  nearby, came  there  and      asked Charan Singh to accompany him      to  his   house  as  he  wanted  to      discuss some  urgent  matters  with      him. Accompanied by A3 Charan Singh      then proceeded towards the former’s      house.   As    they   neared    the      neighboring shop  of Lachhman  Dass      there  was   an  alarm,   whereupon      Swaran  Singh  accompanied  by  his      nephews Harjit  Singh  (P.W.7)  and      Harnek Singh  (P.W.8) (two  sons of      Charan  Singh)   rushed  there.  In      their presence  A1, who  was  armed      with a gandasa, gave a blow with it      on the  head of  Charan Singh  as a      result of  which he fell down. When      Swaran Singh  went to his rescue A2      hit him (Swaran Singh) with another

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    gandasa and A4 with a lathi.      (b) On seeing such assault on their      father and  uncle, Harjit Singh and      Harnek Singh  rushed to their house      and came  back armed  with    dangs      followed by  other members of their      family including  Ms. Amarjit Kaur,      wife     of      Charan      Singh.      Simultaneously, the  other  accused      persons arrived  at the scene armed      with gandasas,  dangs  and  kirpans      and started  assaulting the members      of  Charan   Singh’s  family.  Some      members of  the party  of  A1  also      sustained injuries  at the hands of      the two  sons of  Charan Singh when      they snatched  away some  arms from      the accused  persons and  beat them      in self  defence. The  hue and  cry      attracted some  villagers and  then      the accused  disappeared  from  the      spot  carrying   their   respective      weapons.  All   the  injured   were      removed  to   the  Civil  Hospital,      Ludhiana for  treatment where  from      Charan Singh,  who was  found in  a      precarious      condition,      was      immediately  referred   to   C.M.C.      Hospital, Ludhiana.      (c)  On  receipt  of  a  telephonic      message  from   the  police   guard      posted  at   the  C.M.C.  Hospital,      Ludhiana,  Assistant  Sub-Inspector      Karmit  Singh   of  Police  Station      Sadar,  Ludhiana  (P.W.  10)  along      with some  police officials went to      C.M.C.  Hospital,  Ludhiana,  where      the  Medical   Officer  opined  the      Charan Singh  was not fit to make a      statement. The  police  party  then      went to  Police  Station,  Division      No. 2,  Ludhiana and  collected the      medico-legal-examination reports of      all the  other injured which had in      the meantime been sent there by the      Civil Hospital.  Karmit Singh  then      went   to   the   Civil   Hospital,      Ludhiana and recorded the statement      of injured  Swaran Singh (Ext. PT).      He sent the statement to the police      station  for   registering  a  case      thereupon and  accompanied by  some      police officials  went to the scene      of occurrence. There he seized some      blood-soaked earth  and prepared  a      visual plan  of the spot (Ext. PY).      While   at    the   spot   he   got      information  about   the  death  of      Charan  Singh  and  hence  went  to      C.M.C. Hospital.  He  prepared  the      inquest report  regarding the death      of Charan  Singh and  sent the dead      body for  Post-mortem  examination.      On completion  of investigation  he      submitted chargesheet  against  the

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    accused persons  and in  due course      their case  was  committed  to  the      Court of Session.      (d) The  motive, which according to      the   prosecution    actuated   the      accused to commit the above crimes,      was that eleven months earlier Sewa      Singh,  son  of  Hazura  Singh  and      brother of  A6, A7,  A8 and A9 had,      on  account  of  domestic  problem,      committed suicide  by hanging  near      the  tube-well   of  Charan   Singh      (deceased),  with   whom   he   was      working as  a  share-cropper.  When      this matter  was reported by Charan      Singh to  the  police  the  accused      party levelled allegation that Sewa      Singh was hanged. On that score the      accused party  nursed  a  grievance      against Charan Singh. 3.   The  appellants  pleaded  not  guilty  to  the  charges levelled against  them and their version of the incident, as given out  by A1 in his statement recorded under Section 313 Cr. P.C.,  was that  in the  night preceding the date of the incident a  calf of  A1 had fallen in the outlet of the Bio- Gas plant of the complainant party and over that issue there was an  exchange of  abuses between  A3 and  the complainant party. A3  then gave  out that  he was  going to  inform the police about  the misbehavior  of the  complainant party. To that the  complainant party  retorted that the Harijans (the accused party) had no right to abuse them. The following day (the date  of the  incident) the deceased and members of his family including  Swaran Singh,  Harinder Singh, Ajit Singh, Harjit Singh  and Hari  Singh went  to the house of A3 armed with deadly  weapons and asked him to come out. When he (A1) came out  and protested  he was  attacked by the complainant party with  the weapons  they were  carrying as  a result of which he  sustained severe  injuries on  his person. A1 next stated that thereafter when the complainant party trespassed into the  house of  A3 and  his  sons  and  caused  multiple injuries to  six members  of  their  family,  one  of  them, namely, Nachhatar Singh (A7) caused injuries  on some of the members of  the  complainant  party.  According  to  A1,  on account of  the affluence  and influence  of the complainant party the  police, instead  of  taking  action  against  the complainant  party   who  were   the   aggressors,   falsely implicated them. While some of the other appellants took the same defence others took the plea of alibi. 4.   In support  of their  respective cases  the prosecution examined ten witnesses, of whom Swaran Singh (P.W.6), Harjit Singh (P.W.7),  Harnek Singh  (P.W.8) and Hari Singh (P.W.9) figured as  eye-witnesses,  and  the  defence  examined  one doctor to  prove injuries  on the  persons of  some  of  the members of its party. 5.   When the  medical evidence adduced during trial is read in the  context of the respective cases of the parties it is evident that  Charan Singh  met  with  his  death  and  four members of  his party  namely, Swaran  Singh (P.W.6), Harjit Singh (P.W.7),  Harnek Singh (P.W.8), Hari Singh (P.W.9) and seven member  of the accused party, including A1, A3, A7 and A8  sustained   injuries  in   course   of   the   incident. Resultantly, the  only question  that fell for consideration before the  learned Courts  below was  which of the versions regarding the  incident was  true. To  answer this  question both the  learned Courts  below detailed  and discussed  the

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entire evidence;  and concurring  with the  findings of  the trial Court in this regard the High Court made the following observations:      "Thus, from  the evidence available      on the  record, we  have  no  doubt      that  the   first   part   of   the      occurrence took  place in  front of      the shop  of Lachhman  Dass and, at      that time,  only Boota  Singh (A1),      Malkiat  Singh  (A2),  Karam  Chand      (A4)  and  Surat  (A3)  appellants,      were  present.  Surti  alias  Surat      Singh was  the accused  who brought      Charan Singh  from  his  house  and      Boota Singh  gave the  gandasa blow      which proved  fatal. Malkiat  Singh      gave  two   gandasa  blows  on  the      person of  Swaran Singh while Karam      Chand gave three dange blows on the      person of  Swaran Singh.  The first      part of  the occurrence  came to an      end  with   the  causing   of   the      injuries on  the person  of  Swaran      Singh. Thereafter,  the nephews  of      Swaran Singh  and other  members of      the family  came rushing from their      house and  the  nephews  of  Swaran      Singh were  armed and the remaining      members   of    the   accused-party      including Surat  Singh  came  armed      from their  house and  there was  a      free fight  between the  parties in      the Chowk. Evidently, in a  case of      free  fight,   the  provisions   of      Sections 148  and 149, Indian Penal      Code, cannot  be invoked  and  each      accused shall have to be dealt with      individually    and     shall    be      individually   liable    for    the      injuries caused by him."      The High  Court then  discussed the individual roles of the appellants  in the first and second part of the incident and upheld their convictions as recorded by the trial Court. Having considered  the evidence  on record we do not see any reason to  differ from  the above quoted observations of the High Court. 6.   Coming now  to the  individual roles of the appellants, we find that the evidence on record unmistakably proves that without any  provocation whatsoever  A1 gave  Charan Singh a blow on his head with a gandasa which resulted in his death. Considering the  nature of the weapon used, the situs of the blow and  the extent  of the  injury (external and internal) caused to  the deceased  it must  be said  that A1  has been rightly convicted  under Section  302 IPC  (simpliciter). So far as  conviction of  A2 and  A4 for  the above  murder  is concerned we  are however  unable to agree with the findings of the  learned  Courts  below  that  they  are  liable  for conviction with the aid of Section 34 IPC. Admittedly A2 and A4 did  not inflict  any blow  upon Charan  Singh and except their presence  when Charan  Singh was assaulted by A1 there is no  other material from which it can be conclusively said that they  shared the common intention in causing his death. They are  therefore entitled  to the  benefit of  reasonable doubt so  far as  it relates  to the murder of Charan Singh. That brings  us to  the role  of A3  in the murder of Charan

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Singh. From  the sequence  of events, as noticed earlier, it is evident that pursuant to a pre-arranged plan he persuaded Charan Singh  to come  out of  the house on the plea of some discussion, which was obviously a hoax. Needless to say, but for his  stratagem Charan  Singh would  not have come out of his house  and met  with his death immediately thereafter at the hands  of A1.  It is  true  that  he  did  not  actually participate in  the actual  assault though  present but from his earlier act it stands fully established that he shared a common intention  with A1  to commit  the murder  of  Charan Singh. 7.   So  far  as  the  convictions  of  the  ten  appellants relating to  the assault  on  P.Ws.  6,  7,  8  and  9,  the concurrent  findings   of  the   learned  Courts  below  are unexceptionable and  no  inference  in  respect  thereof  is called for. 8.   On  the   conclusions  as   above  we   set  aside  the convictions of  Malkiat Singh  (A2) and  Karam  Chand  (A-4) under Section  302/34 IPC  and the  sentence of imprisonment for life  and fine imposed therefor but maintain their other convictions and sentences. All the convictions and sentences of  the  other  eight  appellants  are  however  maintained. Appellants, namely,  Boota Singh  (A1), Harmel  Singh  (A5), Balbir Singh  (A6), Nachhattar  Singh (A7),  Sarabjit  Singh (A8), Jaswant  Singh (A9) and Gulzar Singh (A10), who are on bail, are directed to surrender to their bail bonds to serve out the remainder of their sentences.      The appeals are, thus, disposed of.