Indian Kanoon - Search engine for Indian Law

Punjab-Haryana High Court

State Of Punjab vs Mohan Singh And Others on 14 May, 2009

Author: Jora Singh

Bench: Jasbir Singh

Crl.Revision No. 1116 of 2009.
Crl.M. No. 597-MA of 2008 (O&M)               1



IN THE HIGH COURT OF PUNJAB AND HARYANA
       AT CHANDIGARH.

                  Crl. Misc. No.597-MA of 2008.

                  DECIDED ON : 14.05.2009


State of Punjab

                                    Appellant.

                  VERSUS

Mohan Singh and others
                                   Respondents.

                  Crl. Revision. No. 1116 of 2009.

                  DECIDED ON : 14.05.2009


Chand Singh

                                    Petitioner.

                  VERSUS

State of Punjab and others
                                   Respondents.


CORAM :HON'BLE MR. JUSTICE JASBIR SINGH.
       HON'BLE MR. JUSTICE JORA SINGH


Present: Mr. A.S.Virk, Additional Advocate General,
          Punjab.
          Mr. APS Deol, Sr. Advocate, with
          Mr. Devinder Bir Singh, Advocate,
          for the respondents.
          Mr. Manish Kumar Singla, Advocate,
          for the petitioner
         in Crl. Revision.No.1116 of 2009.
 Crl.Revision No. 1116 of 2009.
Crl.M. No. 597-MA of 2008 (O&M)                       2




JORA SINGH,J.

State of Punjab through Public Prosecutor has filed an application under Section 378(3) Cr.P.C. for permission for filing Criminal Appeal and Chand Singh filed Criminal Revision No. 1116 of 2009 to impugn the judgment dated 9.8.2007 and order dated 12.8.2008 rendered by Sessions Judge, Fatehgarh Sahib in Sessions Case No. 6 of 2007 bearing First Information Report No. 10 dated 26.1.2007 Police Station Sirhind, under Sections 302/341/323/506/34 I.P.C. whereby Mohan Singh, Kala alias Rajinder Singh, Raju and Bona were convicted under Section 304 Part-II, 323/34 I.P.C. and were sentenced as under:-

1. Kala alias Rajinder Singh

(i) to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5000/- and in default of payment of fine, he was directed to further undergo rigorous imprisonment for three months for the offence under Section 304 Part-II of the Indian Penal Code.

(ii) to undergo rigorous imprisonment for Crl.Revision No. 1116 of 2009.

six months for the offence under Section 323 read with Section 34 of the Indian Penal Code.

2. Bona

(i) to undergo rigorous imprisonment for seven years and to pay fine of Rs.5000/- and in default of payment of fine, he was directed to further undergo rigorous imprisonment for three months for the offence under Section 304 Part-II of the Indian Penal Code.

        (ii)     To undergo rigorous imprisonment for

                 six months           for the offence         under

Section 323 read with Section 34 IPC.

3.Mohan Singh

(i) To undergo rigorous imprisonment for five years and to pay a fine of Rs.5000/- and in default of payment of fine, he was further directed to undergo rigorous imprisonment for three months for the offence under Section 304 Part-II IPC read with Section 34 I.P.C.

(ii) To undergo rigorous imprisonment for six Crl.Revision No. 1116 of 2009.

months for the offence under Section 323 read with Section 34 I.P.C.

3. Raju

(i) To undergo rigorous imprisonment for five years and to pay a fine of Rs.5000/- and in default of payment of fine, he was further directed to undergo rigorous imprisonment for three months. for the offence punishable under Section 304 Part-II I.P.C. read with Section 34 I.P.C.

         (ii)     To undergo rigorous imprisonment for

                  six   months      for   the   offence      under

Section 323 read with Section 34 I.P.C. All the substantive sentences of imprisonment were ordered to run concurrently.

Criminal Miscellaneous No. 597-MA of 2008 was filed by the State on the allegation that on 25.1.2007 at 5.45 P.M., Bona gave rod blow on the head of Mohan Singh (deceased). Kala also gave rod blow on the head of Mohan Singh (deceased). Causing iron rod blows on the head of deceased show that there was an intention to murder Mohan Singh but trial Court wrongly held Crl.Revision No. 1116 of 2009.

that no case under Section 302 of the Indian Penal Code is made out on the lack of intention on the part of the accused whereas the attack by the accused was pre- planned. Accused convicted under Section 304 Part-II be convicted under Section 302 of the Indian Penal Code. Finding of the trial Court to convict the accused under Section 304 Part-II of the Indian Penal Code be set aside.

Criminal Revision No. 1116 of 2009 was instituted by Chand Singh on the allegation that learned trial Court wrongly came to the conclusion that it is not proved as to which injury caused by which of the accused was fatal. When the head injury was fatal then conviction should be under Section 302 of the Indian Penal Code. Prosecution rightly proved on record that premeditation/ preplanning of the respondents was very much there and the fight has not taken place all of a sudden. Death was due to injuries. Injuries were found to be ante mortem in nature. Accused be convicted under Section 302 of the Indian Penal Code.

Prosecution story, in brief, is that some anti- social elements used to visit the house of Mohan Singh accused. Mohan Singh son of Bishan Singh neighbour of Mohan Singh used to object the visit of anti social Crl.Revision No. 1116 of 2009.

elements at odd hours. Mohan Singh (deceased) had requested the accused to stop the visit of anti social elements.

On 25.1.2007 at 6 P.M., complainant Chand Singh was present in the compound of his house, when his brother Mohan Singh son of Bishan Singh again complained to Mohan Singh accused regarding the visit of anti social elements to his house. Mohan Singh accused went to his house and after some time came in the street along with Raju, Kala and Bona. They were having sticks and iron rods in their hands. Mohan Singh son of Kashmiri Lal raised a lalkara that Mohan Singh son of Bishan Singh should be eliminated for raising objection daily. Bona gave a iron rod blow on the head of Mohan Singh (deceased). Kala gave iron rod blow on the head of deceased, whereas Mohan Singh and Raju gave dang blows to the deceased. Raula was raised. Complainant Chand Singh and Darshan Singh alias Billu, intervened. Bona gave an iron rod blow on the head of Darshan Singh. On hearing raula, ladies came to the spot. They intervened and got the complainant party released from the clutches of the accused. After causing injuries, the accused had fled Crl.Revision No. 1116 of 2009.

away from the pot. Injured were shifted to hospital. Keeping in view of the condition of Mohan Singh, he was referred to PGI, Chandigarh. Chand Singh reported the matter to the police, statement of Chand Singh is Ex.PB.

After making endorsement Ex.PB/1, statement was sent to the Police Station, on the basis of which formal First Information Report was recorded as Ex.PB/2.

On 26.1.2007 at 8.30 P.M., Mohan Singh had succumbed to his injuries while lying admitted in PGI,Chandigarh. As per post-mortem examination, Dr. Joginder Bansal found following injuries on the person of deceased:-

(i) Stitched wound of 3.5 cm present over top of head obliquely placed in midline, surrounded with a contusion (bluish black) abrasion (soft scabbed) in an area of 4.5 x 1.5 cm. On opening the stitched the wound was 2.8 x 0.2. x muscle deep with contused margins.

(ii) Superficial lacerated wound of 1.5 x 0.6 cm was present over upper back of right fore arm, 11 cm below elbow joint.

Crl.Revision No. 1116 of 2009.

(iii) Superficial lacerated wound of 0.6 x 0.3 cm was present 6 cm above injury No.2.

(iv) Superficial lacerated wound of 0.5 x 0.2 cm was present 4 cm above injury No.3.

(v) Multiple soft scabbed abrasion in an area of 8.5 x 2.4 cm was present over back of right elbow.

(vi) Soft scabbed abrasion of 1 x .04 cm over right side face, 2 cm below right eye. Following observations were made by him on the internal examination of the head of the deceased:-

"Extravasations of blood present all over the scalp layers. Fissured fracture was present over both sides of parietal bones, radiating to temporal bone bilaterally and also to middle cranial fosse bilaterally. Thin Sub Dural Hemorrhage was present all over the cerebral and cerebella lobes. Patchy Sub Arachnoids Hemorrhage was present all over. Petichial hemorrhage were present in the parenchyma of both cerebral and cerebellum lobes. Ventricles were found dilated and filled with blood. Brain stem hemorrhages were present."

Crl.Revision No. 1116 of 2009.

The death was caused due to craniocerebral damage consequent to the injuries of head. All the injuries were ante mortem in nature. Injury No.1 was found sufficient to cause death in the ordinary course of nature. The post mortem report was prepared, copy of which is Ex.P-3.

After completion of investigation, accused were challaned.

The case was committed to the Court of Session for trial.

Accused were charged under Sections 302, 323 of the Indian Penal Code to which they pleaded not guilty and claimed trial.

In order to substantiate the charges, the prosecution examined PW-1 Sadhu Singh draftsman, PW-2 Chand Singh complainant, PW-3 Darshan Singh, PW-4 Dr. Yogender Bansal, who conducted post mortem examination on the dead body of the deceased. PW-5 Sub Inspector Hans Raj, PW-6 Sub Inspector Sewa Singh, PW-7 Head Constable Bakshish Singh, PW-8 Dr. Balwinder Singh Multani.

After the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C. to Crl.Revision No. 1116 of 2009.

explain the allegations levelled against them. They denied all the allegations and claimed to be innocent. Defence version of Mohan Singh accused was that at about 8/9 P.M. on the day of occurrence, there was quarrel between the women folk in which some brickbats were hurled from both sides and in that incident, Mohan Singh deceased had received injury. Mohan Singh was aged about 60 years and an old and infirm person. He has been falsely involved in this case on suspicion. Defence version of Raju, Kala and Bona was that they are residing separately and were falsely implicated being related to Mohan Singh.

After going through the evidence on the file, trial Court opined that accused has committed an offence punishable under Sections 323, 304 Part-II and 34 of the Indian Penal Code and was sentenced, as stated above.

Feeling aggrieved against the judgment/ order of the trial Court, appeal was preferred by the State and revision was instituted by the complainant with the request that accused be convicted under Section 302 IPC instead of 304 Part-II of the Indian Penal Code.

Mr. A.S.Virk, Additional Advocate General, Punjab, argued that Mohan Singh deceased lodged Crl.Revision No. 1116 of 2009.

protest with Mohan Singh accused regarding visit of anti-social elements to his house. Again on 25.1.2007 at about 5.45 P.M. deceased had lodged protest with Mohan Singh accused regarding visit of anti social elements to his house. Then Mohan Singh had gone to his house and after some time came back with Bona, Raju and Kala armed with dangs and iron rods. Bona gave iron rod on the head of Mohan Singh deceased. Kala also gave dang blow on the head of deceased. According to the doctor, injury No. 1 was on the head of the deceased. Death was due to injury on the head. All the injuries were found to be anti mortem in nature. Injury No.1 was found sufficient to cause death in the ordinary course of nature. Attack was pre-planned. Accused had the intention to murder but trial Court wrongly opined that no offence under Section 302 of the Indian Penal Code is made out. When respondents- accused were armed and came to the spot with a plan to commit murder. Then trial Court should have convicted the respondents-accused under Section 302 of the Indian Penal Code.

Mr. A.P.S.Deol, Sr. Advocate, with Mr. Davinder Bir Singh, Advocate, learned counsel for the Crl.Revision No. 1116 of 2009.

respondents argued that against conviction, no appeal by the respondents. Trial Court rightly opined that offence punishable under Section 304 Part-II I.P.C. is made out. Complainant party and the accused are the neighboures. There was no previous enmity amongst the parties. Deceased complained to the accused regarding visit of anti social elements to his house. Two of the accused were armed with iron rods and remaining two accused were armed with sticks. When there was no intention to murder and the prosecution is not clear as to who had caused fatal injury, then no question to convict the accused under Section 302 of the Indian Penal Code.

We have gone through the file with the assistance of the learned counsel for the parties and are of the view that conviction of the accused under Section 304 Part-II instead of conviction under Section 302 I.P.C. is correct one because according to the story, some anti social elements used to visit the house of Mohan Singh. Deceased used to object the visit of anti social elements at odd hours in the house of Mohan Singh accused. On the day of occurrence i.e. 25.1.2007 at 5.45 P.M., Chand Singh complainant was present in his house when his brother deceased complained to Mohan Singh Crl.Revision No. 1116 of 2009.

accused regarding visit of bad elements to his house. After that, Mohan Singh accused had gone to his house and after some time, came back with Raju, Kala and Bona. Mohan Singh and Raju gave dang blows to the deceased. Bona and Kala gave rod blows on the head of Mohan Singh deceased. According to the doctor, only one head injury was noted at the time of post mortem examination. Injuries No. 2, 3 and 4 were superficial lacerated wound. Injuries No. 5 and 6 were soft scabbed abrasion. Only injury No.1 was on vital part, others were on non-vital part. Dr. Joginder Bansal while appearing in Court stated that injury No. 1 on the head could be the result of a single blow. Trial Court while discussing as to whether offence punishable under Section 302 of the Indian Penal Code is made out or the offence punishable under Section 304 Part-II of the Indian Penal Code is made out, observed in para No. 40 of the judgment which reads as under:-

" Now only question, which remain to be answered as to whether the offence under Section 302 read with Section 34 IPC is proved against the accused or the provisions of Section 304 Part II are attracted in the Crl.Revision No. 1116 of 2009.

present case. It is admitted case of the parties that the accused and complainant part are neighbours. There was no enmity in between the parties. The reasons which gave rise to the present occurrence was that the deceased complained of the visit of undesirable/ anti social elements to the house of the accused Mohan Singh. The accused with iron rods and sticks came in the street and caused injuries to Mohan Singh. There was no motive or intention to cause the murder of the deceased. The deceased died of head injury caused by blunt weapon. It is not proved as to which injury caused by which of the accused was fatal. One of the injury caused on the head of the deceased was fatal and the injury on the head of the deceased have been attributed to accused Bona and Kala. This injury was caused by iron rod. The person causing this injury must have knowledge that such injury would cause death. The accused were armed with weapons like iron rod and sticks and were not having Crl.Revision No. 1116 of 2009.

any sharp edged weapon or firearm type deadly weapon. Each of the accused has been attributed one injury each to the deceased. Even if the accused had no intention to cause death of the deceased, they certainly knew that the injury on the head with iron rod was likely to cause death."

Evidence on the file shows that there was no previous enmity amongst the parties. Accused as well as the complainant party are the neighbours. Dispute was qua visit of undesirable or anti social elements to the house of Mohan Singh accused. In case, the accused came from their house as per planning to murder, then number of injuries should be caused on the vital parts of the deceased. Chand Singh complainant is the brother of the deceased but no injury was caused to Chand Singh when injury on the head was with single blow, then no definite opinion can be given as to whether the injury on the head was caused by Bona or by Kala because both were armed with iron rods and gave one blow each on the head.

As discussed earlier, only one fatal injury on the head, other injuries were on the non-vital part i.e. Crl.Revision No. 1116 of 2009.

superficial lacerated wounds and soft scabbed abrasions. Evidence on the file was rightly scrutinized by the learned trial Court. Nothing to opine that evidence was misread or judgment is preverse and accused had the intention to commit murder. So,no question of interference in the impugned judgment of the trial Court is made out.

In the light of the above discussion, leave to appeal declined.

Criminal Miscellaneous No. 597-MA of 2008 is dismissed.

Criminal Revision No. 1116 of 2009 is also dismissed being time barred.

                                 ( JORA SINGH )
                                      JUDGE




14.05.2009.                     ( JASBIR SINGH )
Anoop                                 JUDGE