Punjab-Haryana High Court
Jagdev Singh And Parkash Singh vs State Of Punjab on 18 February, 2010
Author: Jora Singh
Bench: Satish Kumar Mittal, Jora Singh
Crl. Appeal No.532-DB of 2001 [1]
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
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Crl. Appeal No.532-DB of 2001
Date of decision : February 18, 2010
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Jagdev Singh and Parkash Singh
............appellants
Versus
State of Punjab
...........respondent
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CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JORA SINGH
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Present: Mr. R.S Cheema, Senior Advocate with
Ms. Taranum Cheema, Advocate for the appellant.
Mr. A.S Virk, Additional Advocate General, Punjab
for respondent.
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JORA SINGH, J.
Jagdev Singh son of Karnail Singh and Parkash Singh son of Ranjit Singh, both residents of village Gill Patti, Distt. Bathinda preferred this appeal to challenge the judgment/order dated 10.9.2001/12.9.2001 passed by Additional Sessions Judge, Barnala in Sessions Case no.25 of 18.7.1998 arising out of FIR No.24 dated 5.4.1998 registered under Sections 147, 302 read with Section 149 IPC at Police Station Dhanaula. By the said judgment, they were Crl. Appeal No.532-DB of 2001 [2] convicted under Sections 302/34 IPC and were sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/- each. In default of payment of fine to further undergo RI for a period of one month each.
Kashmira Singh, Ram Singh and Kahla Singh alias Karnail Singh were acquitted of the charge levelled against them. Against acquittal of the above said accused, neither any appeal by the State nor revision was filed by the complainant.
Prosecution story, in brief is that Dalbara Singh, complainant was serving as Assistant Lineman in Punjab State Electricity Board, Dhanaula. Balraj Singh alias Billu, nephew of the complainant was a medical practitioner and his shop was situated in Jawandha Patti, Dhanaula. On 5.4.1998, marriage of the daughter of Piara Singh son of Bhag Singh was being solemnized near the shop of Balraj Singh. Marriage party had come from Gill Patti, Bathinda. Dalbara Singh was sitting at the shop of his nephew, Balraj Singh. At that time, five persons came to the shop of Balraj Singh. One of them was having a video camera. They told Balraj Singh that they were the members of the marriage party and wanted to take liquor. They demanded a tumbler and water from Balraj Singh. He gave them one tumbler and a jug of water. Balraj Singh also started taking liquor with them. One of the aforesaid five baratis was describing himself as Parkash Singh and another was describing himself as Jagdev Singh, a police official. Names of the remaining persons were not known to him. Balraj Singh enquired from them from where the marriage party came. Then they replied that marriage party has Crl. Appeal No.532-DB of 2001 [3] come from Gill Patti, Bathinda. After that Balraj Singh said that he was also married in Gill Patti, Bathinda so he was their son-in-law (Prauhana). On hearing that the aforesaid five persons started beating Balraj Singh. When Balraj Singh raised raula then the aforesaid persons had gone to the house of Piara Singh. Balraj Singh was made to lie on the cot. Then he (complainant) went to bring Shamsher Singh brother of Balraj Singh. After some time, he along with Shamsher Singh came to the shop of Balraj Singh, then sighted Jagdev Singh, Parkash Singh and three other persons while giving beatings to Balraj Singh. He along with Shamsher Singh raised raula then accused had fled away from the spot in a jeep. Motive to give beatings was that the accused under the influence of liquor wanted to teach a lesson for describing himself (Balraj Singh) as their son-in-law. After arranging a vehicle, Balraj Singh was shifted to Civil Hospital, Dhanaula, where he was given first aid. After sometime, Balraj Singh had succumbed to his injuries while lying admitted in Civil Hospital, Dhanuala. Ruqa was sent to the police station and police party headed by SHO/PS, Dhanaula came to Civil Hospital, Dhanaula. The above statement of Dalbara Singh Ex.PE was recorded which was read over and explained to him, who had signed the same in token of its correctness. After making endorsement Ex. PE/1 at about 8:30 p.m, ruqa was sent to Police station, on the basis of which, formal FIR Ex.PE/2 was recorded.
SHO, Harbhajan Singh along with police party had gone to the place of occurrence. Rough site plan Ex.PW9/A was prepared with correct marginal notes. On 6.4.1998, Constable Gurmit Singh Crl. Appeal No.532-DB of 2001 [4] produced one parcel of viscera and clothes of the deceased before the Investigating Officer. Same were taken into police possession vide recovery memo Ex.PW.9/B. On return to the police station, case property was deposited with the MHC.
After the completion of investigation, challan was presented in the Court.
Accused were charged under Sections 147 and 302 read with Section 149 IPC to which the accused did not plead guilty and claimed trial.
In order to prove its case, prosecution examined ten witnesses.
PW-1, Dr. Subhash Singhal stated that on 6.4.1998 at about 9:15 a.m, he had conducted post mortem examination on the dead body of Balraj Singh alias Billu and found the following injuries:
1. Lacerated wound 1.5 cm x .2 cm present on the right side of forehead one cm above the lateral part of right eye brow. Deep into subcutaneous level with extra vastion of blood into the surrounding tissues.
2. Reddish abrasion 2 cm x 0.3 cm present on the left side of forehead 1.5 cm above the left eye brow.
3. Reddish blue contusion 2 cm x 1 cm present over the right lower orbital margin near its lateral end.
Cause of death was injury to vital organ (heart) which was sufficient to cause death in the ordinary course of nature. Crl. Appeal No.532-DB of 2001 [5]
PW-2, Dr. J.S Aulakh, Medical officer stated that on 5.4.1998, Balraj Singh was brought to PHC, Dhanaula then information Ex.PF was sent to SHO/PS Dhanaula. On 6:55 P.M, Balraj Singh had died.
PW-3, Dalbara Singh and PW-4, Shamsher Singh are the eye witnesses and stated that in their presence, appellants had given beatings to Balraj Singh.
PW-5, Devraj, Draftsman prepared scaled site plan Ex.pW 6/A. PW-6, Harbans Singh stated that on 5.4.1998, he had participated in the marriage of daughter of Piara Singh. He was the President of BSP and was a candidate of Legislative Assembly, Dhanaula in 1992. Jagdev Singh, Parkash Singh, Kashmira Singh, Ram Singh and Kahla Singh were received as members of marriage party (barat). They were known to him. On 25.4.1998, he along with Jarnail Singh was present at his house. Jagdev Singh and Kashmira Singh came to him and made extra judicial confession that on the day of marriage i.e 5.4.1998, they along with Parkash Singh, Ram Singh and Kahla Singh had some altercation with Balraj Singh then gave beatings to him. Then accused were produced in CIA Handiya before SI Baljinder Singh.
PW-7, SI Baljinder Singh stated that on 25.4.1998, he had recorded the statement Ex.DA when Harbans Singh of village Harigarh produced before him Kashmira Singh and Jagdev Singh. He had also arrested Parkash Singh and Ram Singh. Jeep No. DL.100/0840 along with papers was taken into possession vide Crl. Appeal No.532-DB of 2001 [6] recovery memo Ex.PX. On 6.5.1998, Kahla Singh was arrested by him.
PW-8, Ram Gopal, as per attendance register reported that on 5.4.1998, ALM Dalbara Singh was on rest.
PW-9, SI, Harbhajan Singh is the Investigating Officer. PW-10, ASI, Sanjeev Goyal had partly investigated the case.
After close of the prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. Accused denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of accused, Jagdev Singh and Parkash Singh was that they were not the members of the marriage party. Balraj Singh was not running any shop. Balraj Singh had gone to the house of Piara Singh and created nuisance after taking liquor. He received injuries by falling on the foot (pawa) of the cot. Piara Singh was summoned by the police. Barat was detained up to 7:00 p.m. They were falsely implicated.
In defence, Gurmukh Singh, Naib Tehsildar appeared as DW-1 and stated that on 24.4.1998 while serving as naib Tehsildar- cum-Executive Magistrate IInd Class, Barnala, he was deputed by SDM Barnala for holding identification parade in District Jail, Sangrur. Identification parade was arranged. Dalbara Singh had met him in the jail but cannot tell who was identified by Dalbara Singh. As per identification report dated 24.9.1998, signatures of Ram Singh were obtained. Dalbara Singh failed to identify Ram Singh. Ex.DW1/C is the identification report regarding Parkash Singh. Dalbara Singh Crl. Appeal No.532-DB of 2001 [7] failed to identify Parkash Singh.
After hearing learned Public Prosecutor for the State, learned counsel for the accused and perusing the evidence on file, trial Court convicted and sentenced the appellants vide the impugned judgment as indicated above.
Learned counsel for the appellants argued that on the day of occurrence marriage of the daughter of Piara Singh was being solemnized. Marriage party came from Gill Patti, Bhatinda. Distance of Gill Patti from the place of occurrence is 70 kilometers. Earlier to the present occurrence, appellants were not known to the complainant-party. There was no dispute amongst the parties. No cogent and convincing evidence on the file that the appellants, as per story had gone to the shop of Balraj Singh. Statement of the complainant is clear that one of the five persons who came to the shop of Balraj Singh was disclosing his name as Jagdev Singh (an official of the police) and second was disclosing his name as Parkash Singh. When the appellants were not known to the complainant then it is very strange how the names of the appellants appeared in the FIR. After arrest of the appellants, identification parade was arranged. But complainant failed to identify the appellants. So identity of the appellants is doubtful. Story is also doubtful as to how the occurrence had taken place. As per Dalbara Singh, he was sitting at the shop of Balraj Singh then five members of the marriage party came and asked them to supply a jug of water and tumbler. Liquor was taken by the appellants and Balraj Singh. Balraj Singh enquired from the appellants from where they have come. Then they Crl. Appeal No.532-DB of 2001 [8] replied that they have come from Village Gill Patti. Balraj Singh told them that he was also married at village Gill Patti and as such he was their son-in-law. Thereafter, appellants started giving beatings to Balraj Singh. After giving beatings they had gone to the house of Piara Singh. Dalbara Singh had gone to bring Shamsher Singh. After sometime, they both came and noticed appellants while giving beatings to Balraj Singh. Appellants were not armed. Harbans Singh, PW stated that on 25.4.1998, Jagdev Singh and Kashmira Singh came to his house and made an extra judicial confession then they were produced before the police and no recovery was effected from them. According to the learned counsel, in fact the deceased had gone to the house of Piara Singh and under the influence of liquor he created nuisance. There he had received injury by fall on the foot of the cot. Doctor admitted that injury is possible on the body of the deceased by fall. Learned counsel further argued that as per story, five members of the marriage party came to the shop of the deceased when deceased told them that he was their son-in-law then those persons gave beatings to him. Eye witnesses failed to explain who had caused which injuries to the deceased. Whether injuries were caused by the accused who were acquitted by the trial Court or by the present appellants. After Shamsher Singh was brought by Dalbara Singh then five persons were found beating Balraj Singh but again Dalbara Singh or Shamsher Singh are not in a position to explain whether the injuries noted by the doctor were caused by the appellants or by the accused who were acquitted. Earlier to the occurrence, appellants had no enmity with the Crl. Appeal No.532-DB of 2001 [9] deceased. Appellants had no intention to kill the deceased. When deceased stated to the appellants that he was their son-in-law then there was sudden altercation amongst them. Intention of the appellants was to give beatings and not commit his murder. If story of the prosecution is taken to be correct one then appellants are liable for punishment under Section 323 or at the maximum under Section 304 IPC.
Learned counsel for the State argued that occurrence had taken place at the shop of deceased at about 5:00 p.m. Immediately, after the occurrence, Balraj Singh was shifted to Civil Hospital, Dhanaula. He died at 6:55 p.m. After recording formal FIR at 8:40 p.m, special report was sent to the Ilaqa Magistrate and the same was received by the Ilaqa Magistrate, Barnala at 6:40 am in the morning of 6.4.1998. Earlier, there was no dispute amongst the parties. Complainant-party had no motive to leave the real culprit and name the appellants. Piara Singh or father of the boy failed to appear in defence to state that appellants were not the members of the marriage party or that the deceased got the injury by fall in the marriage pandal when he was under he influence of liquor. Appellants were produced by Harbans Singh. If appellants had not committed the crime then there was no idea to produce them before the police. On request of one of the appellants, identification parade was arranged. But Shamsher, PW was not joined. Five members of the marriage party had given beatings to Balraj Singh but only two persons i.e Parkash Singh and Ram Singh were joined in the test identification parade. Appellants were not armed but they were Crl. Appeal No.532-DB of 2001 [10] sighted while standing on the chest of the deceased i.e why no external injury was noticed Dalbara Singh complainant was employee of PSEB and on the day of occurrence, he was on rest and this fact is clear from the statement of PW, Ram Pal JE, PSEB. Deceased was running a shop as a medical practitioner. Dalbara Singh, uncle of the deceased was present at the shop of Balraj Singh. On the day of occurrence, marriage of the daughter of Piara Singh was being solemnized. Marriage party came from Gill Patti, Bathinda. Bhatinda is at a distance of 70 kilometers from Dhanaula. But the appellants as the members of the marriage party had gone to the shop of the deceased then demanded a tumbler and a jug of water to take liquor. Appellants and the deceased had taken liquor when deceased enquired from the appellants from where they had come, then appellants replied that they had come from Gill Patti Bathinda. After that deceased replied that he was also married in Gill Patti, Bathinda and as such he was their son-in-law. On this some altercation had taken place between them. Appellants gave beatings to the deceased. Thereafter, appellants had gone to the house of Piara Singh. Dalbara Singh had gone to bring the brother of Balraj Singh namely, Shamsher Singh. When Dalbara Singh and Shamsher Singh came back then again they sighted the appellants while giving beatings and standing on the chest of Balraj Singh. Earlier to the occurrence, appellants were not known to the complainant-party. But Dalbara Singh and Shamsher Singh had seen the appellants while giving beatings to the deceased. Both appeared in the Court and Crl. Appeal No.532-DB of 2001 [11] stated that appellants gave beatings to Balraj Singh, deceased. Occurrence took place at about 5:00 p.m. While taking liquor one of the appellants disclosed his name as Jagdev Singh (a police official) and second as Parkash Singh, Photographer. After the occurrence at 5:00 p.m, Balraj Singh was shifted to Civil Hospital, Dhanaula at 5:40 p.m. But after about one hour, Balraj Singh had succumbed to his injuries at 6:55 p.m. Intimation was given to the concerned police station by the doctor. This fact is clear from the statement of Dr. J.S Aulakh appearing as PW-2. On receipt of information, police party came to Civil Hospital. Then statement of Dalbara Singh was recorded at 8:30 p.m. After registration of FIR, Special Report was received by the Ilaqa Magistrate at 6:40 am in the morning on the next date. Appellants in their statement recorded under Section 313 Cr.P.C, stated that they were not the members of the marriage party. Balraj Singh was not having any shop. In fact, Balraj Singh had gone to the house of Piara Singh, where he under the influence of liquor created nuisance and due to fall received the injuries. If the appellants were not the members of the party and did not come to Dhanaula, then how they can state that Balraj Singh was not running a shop. If Balraj Singh had gone to the house of Piara Singh and under the influence of liquor created nuisance and received injuries by fall against foot of the cot, then Piara Singh can be produced in defence to state that appellants were not the members of the barat and the occurrence had taken place in his house. Father of the boy was also not produced to state that appellants did not come in marriage party of his son to Dhanaula. In case the appellants were Crl. Appeal No.532-DB of 2001 [12] not in a position to produce Piara Singh then they could have easily produced father of the boy from Gill Patti Bathinda. Appellants are to be presumed innocent unless the guilt is proved but when they had taken a specific stand that they were not the members of the party then some evidence should have been led by them to clear doubt that when complainant-party had no dispute with the appellants then why the complainant-party had named the appellants. If under the influence of liquor as per defence version, deceased had received injuries by fall against foot of the cot then one injury was expected to be on the person of the deceased but as per post mortem report, three injuries were noticed on the body of the deceased. According to the doctor, death was not due to those injuries but the death was due to injury to vital organ (heart) and this injury is possible when the chest is pressed while standing on the body lying on the ground.
As per request of Parkash Singh, identification parade was arranged. Gurmukh Singh, DW-1 had conducted test identification parade but the test identification parade is without any evidentiary value because as per story number of baratis had given beatings but all were not joined in the test identification parade. Occurrence was witnessed by Dalbara Singh and Shamsher Singh but Shamsher Singh was also not joined. Dalbara Singh when appeared as PW-3 then stated that he failed to identify Parkash Singh because he had muffled face. Submission of the counsel for the appellants is that earlier to the present occurrence, appellants were not known to the eye witnesses so identification of the appellants for the first time in the Court is without any evidentiary Crl. Appeal No.532-DB of 2001 [13] value. If the accused is not known to the eye witness before the occurrence then statement of the eye witness in the Court is not to be discarded on this simple ground that accused was not earlier known to him. When the occurrence had taken place in the presence of eye witness then eye witness had sufficient time to notice the accused and identify them in the Court also. Occurrence was at the shop of Balraj Singh. Shop was near the residential house of the complainant-party. Presence of Dalbara Singh at the shop of his nephew Balraj Singh was natural. There is no evidence on the file that at the house of Piara Singh, deceased had created nuisance under the influence of liquor, particularly, when complainant-party was not invited by Piara Singh. So, there was no occasion for Balraj Singh to visit the house of Piara Singh and create nuisance under the influence of liquor. FIR was registered very promptly. Appellants were named in the FIR. Therefore, there is no reason to falsely name the appellants.
Next submission of the counsel for the appellants is that story of the prosecution is doubtful. However, after going through the evidence on the file, we are not in a position to agree with the submission of learned counsel for the appellants. Deceased was running a shop. Firstly in the presence of Dalbara Singh, appellants gave beatings to Balraj Singh when on enquiry he replied that if the marriage party is from Gill Patti then he is their son-in-law. After giving beatings to the deceased, appellants had gone to the house of Piara Singh. Dalbara Singh brought Shamsher Singh and after few minutes when came, then again noticed appellants while giving Crl. Appeal No.532-DB of 2001 [14] beatings to Balraj Singh. In case the story was to be concocted then Dalbara Singh and Shamsher Singh could easily state that they were present at the shop of Balraj Singh. Appellants came and when there was a dispute then they gave beatings to Balraj Singh.
Last submission of the learned counsel for the appellants is that earlier to the occurrence, appellants had no enmity with the complainant-party. Appellants were not armed. There was a sudden quarrel as per reply by the deceased. Intention was not to murder so at the most intention was to give beatings. Therefore, appellants are liable to be punished under section 323 IPC or at the maximum under Sections 304 IPC.
Submission of the learned counsel for the appellants seems to carrying some weight. As discussed earlier, three injuries were noted on the person of the deceased. Injuries were on the face but cause of death was due to injury to vital organ i.e heart. Defence version of the appellants is that they were not the members of the marriage party and they did not cause any injury to the deceased. Injury to the heart cannot be self-suffered or self-inflicted. Regarding receipt of injury by fall against the foot of the cot, there is no evidence on the file. Appellants were not armed and had no intention to murder. If the appellants had the intention to murder then they could easily bring weapons when they came back second time to the shop of the deceased. From the evidence, it appears that there was a sudden quarrel amongst the deceased and the appellants when deceased stated to the appellants that he was their son-in-law because marriage party is from his in-laws village. In these Crl. Appeal No.532-DB of 2001 [15] circumstances, in our opinion, the appellants committed the offence of culpable homicide not amounting to murder. In the present case, firstly injuries were given in the presence of Dalbara Singh and second time also, appellants were seen while sitting on the chest of Dalbara Singh. Dr. Modi opined that traumatic rupture of the heart which may be round, oval or star shaped is usually caused by a blunt weapon by a carriage wheel running over the chest or by a fall from a height over a hard projecting surface. In such cases, the heart is usually ruptured on its right side and towards its base, and the ribs and the skin over them are damaged. However, in rare instance, a rupture of the heart may occur without leaving any external mark of violence of causing fracture of the ribs. Increase in intraventricular pressure as a result of compression of the legs and abdomen may cause cardiac injury and even arrhythmias. Even a separation of the heart from its attachments could occur as a reusl of tractional force on the organs away from the neck. While sitting on the chest, appellants had the knowledge that vital organ is to be damaged but he was having no intention to kill the deceased.
From the evidence on the file, we are of the view that appellants committed the offence of culpable homicide not amounting to murder. So they are liable for punishment under Section 304 Part- II and not under Section 302 IPC. Therefore, conviction of appellants under Section 302 is altered to Section 304 Part-II IPC and appellants are directed to undergo rigorous imprisonment for seven years each. However, the fine is maintained.
Thus, appeal is partly allowed. Appellants who are on Crl. Appeal No.532-DB of 2001 [16] bail are directed to surrender before the concerned authorities to undergo remaining portion of the sentence, failing which the appropriate authority is to initiate action to direct the appellants to undergo imprisonment as ordered.
( JORA SINGH )
JUDGE
February 18, 2010 ( SATISH KUMAR MITTAL )
ritu JUDGE