Punjab-Haryana High Court
Gurdip Singh And Another vs State Of Punjab on 9 December, 2008
Author: S.S. Saron
Bench: S.S. Saron, Sabina
In the High Court of Punjab and Haryana at Chandigarh
......
Criminal Appeal No.885-DB of 2004
.....
Date of decision:9.12.2008
Gurdip Singh and another
.....Appellants
v.
State of Punjab
.....Respondent
....
Coram: Hon'ble Mr. Justice S.S. Saron
Hon'ble Mrs. Justice Sabina
Present: Mr. R.S. Sandhu, Advocate for the appellants.
Mr. S.S. Gill, Additional Advocate General, Punjab for the
respondent-State.
.....
S.S. Saron, J.
This appeal has been filed by Gurdip Singh (appellant No.1) and his wife Swaran Kaur (appellant No.2) against the judgment and order dated 9.9.2004 passed by the learned Additional Sessions Judge, Ferozepur whereby the appellants have been convicted for the offence under Section 302 Indian Penal Code (`IPC' - for short) and sentenced to undergo imprisonment for life; besides to pay a fine of Rs.2,000/- each. In the event of default of payment of fine to undergo further rigorous imprisonment for six months.
The FIR (Ex.PB/2) in the case has been registered on the statement (Ex.PB) of Chanan Singh-complainant (PW-3) on 21.5.2002 at Cr. A. No.885-DB of 2004 [2] 5.10 p.m. The FIR is as regards the incident which occurred on the same day at 5.30 a.m. It is alleged by Chanan Singh-complainant (PW-3) that on 21.5.2002 in the morning he was returning to his house after easing himself outside in the field. His younger brother Baljeet Singh (deceased) was thereafter going to ease himself. When he reached near the house of Gurdip Singh (appellant No.1), then he (Gurdip Singh) armed with `Gandasa', his elder son Karaj Singh (since declared juvenile) armed with `Sela' and his younger son Saraj Singh (not sent-up for trial) was armed with `Sota' and his wife Swaran Kaur (appellant No.2) having a `Thapa' suddenly came out of their house in pursuance of a scheme they had already made. At that time, it was about 5.30 a.m. Immediately after coming out of the house, they grappled with Baljeet Singh (deceased)-brother of the complainant and dragged him to their house. They tied his (Baljeet Singh's) legs and arms with ropes and hurled blows; besides, and inflicted injuries on him with their respective weapons. Baljeet Singh (deceased) raised enough alarm (Raula) but the aforesaid four persons continued causing injuries to him. They caused a number of injuries on his right and left arms, back, head and leg. Chanan Singh-complainant (PW-3) raised a `raula' (alarm) to rescue him. On hearing his `raula' (alarm), Mehal Singh (PW-9), elder brother of Chanan Singh-complainant (PW-3) also came at the spot In the meanwhile, the accused fled from the spot with their respective weapons. Chanan Singh-complainant (PW-3) witnessed the entire occurrence. The cause of the grudge, it is submitted, was that Gurdip Singh (appellant No.1) had a doubt that the complainant's brother Baljeet Singh (deceased) had illicit Cr. A. No.885-DB of 2004 [3] relations with his wife Swaran Kaur (appellant No.2). Then the complainant side untied the legs and arms of their brother Baljeet Singh, who was unconscious due to the number of injuries that he received. Thereafter, Harjinder Singh son of Gurbax Singh (PW-8) son of their paternal uncle also came there. After arranging a vehicle, they sent Harjinder Singh with Baljeet Singh for getting him admitted in the hospital at Ferozepur. Harjinder Singh (PW-8) got Baljeet Singh admitted in the hospital. The doctor had treated him. Chanan Singh-complainant (PW-3) and his brother Mehal Singh (PW-9) came to the Government Civil Hospital at Ferozepur after arranging money. The statement of Chanan Singh- complainant (PW-3) was recorded by Gurdip Singh, Sub Inspector, In- charge, Police Post, Sodhi Nagar (PW-10). Chanan Singh-complainant (PW-3) heard his statement and accepted it as correct. On the basis of the said statement, FIR (Ex.PB/2) was registered. Sub Inspector Gurdip Singh (PW-10) had, in fact, received a wireless message from the SHO, Police Station, Ghall Khurd that Baljeet Singh (deceased) was admitted in the Civil Hospital at Ferozepur due to receipt of injuries. On receipt of the said message, Gurdip Singh, SI (PW-10) along with other police officials reached Police Station City, Ferozepur and obtained MLR in respect of Baljeet Singh and reached Civil Hospital, Ferozepur. Thereafter, a written opinion was obtained regarding the condition of Baljeet Singh, injured, however, the doctor declared him unfit to make a statement. Then the aforesaid statement (Ex.PB) of Chanan Singh was recorded who had witnessed the occurrence. In terms of the medico-legal report, the doctor Cr. A. No.885-DB of 2004 [4] observed that Baljeet Singh had received 23 injuries in all. Out of these injuries No.1, 8, 9, 12, 13, 14 and 22 were mentioned to have been caused with sharp edged weapon. The remaining injuries were with blunt weapons. Injuries No.8, 10, 13, 14 and 23 were kept under observation and the remaining injuries were declared simple in nature. From the medico legal report and the statement of Chanan Singh (PW-3), commission of offences punishable under Sections 324, 323 and 34 IPC was made out. Accordingly, `Ruqa' (memo) was sent to the police station through Constable Sudesh Kumar for registration of a case (FIR). On receipt of the `Ruqa' (memo) at the police station, FIR for the aforesaid offences was registered by Bikram Singh, ASI, SHO, Police Station Ghall Khurd. The special report was received by the Chief Judicial Magistrate at 10.05 a.m. on 22.5.2002.
The investigation in the case was conducted by Gurdip Singh, Sub Inspector (PW-10). After recording the statement of Chanan Singh (PW-3) and registration of the FIR (Ex.PB/2), the Investigating Officer went to the spot with Angrej Singh, Constable and Chanan Singh-complainant (PW-3). Kulwant Singh and Harjinder Singh (PW-8) met him at the place and they were joined in the investigation. The spot which was pointed out to SI Gurdip Singh (PW-10) was inspected. The blood stained earth and ordinary earth from the spot where the incident had occurred was lifted, which was put in a parcel and taken in possession vide memo (Ex.PJ). The sealed parcels containing blood stained and ordinary earth are MO-1 and MO-2 respectively. Rough site plan (Ex.PK) which contains marginal notes Cr. A. No.885-DB of 2004 [5] was prepared. Kulwant Singh produced before Gurdip Singh, SI (PW-10) seven pieces of rope, which were converted into parcels and after collecting seal from Angrej Singh, Constable, that parcel was sealed. The specimen seal was prepared and returned to Angrej Singh, Constable. The sealed parcel was taken in possession vide memo Ex.PL. The said parcel is MO-3. Harjinder Singh (PW-8) produced before SI Gurdip Singh (PW-10) torn shirt and one blood stained `Pajama' alleged to have been worn by Baljeet Singh (deceased) at the time of occurrence. The same was also converted into a parcel and sealed. Specimen of the seal was separately prepared and after use it was again returned to Angrej Singh, Constable. The sealed parcel MO-4 was taken in possession vide memo (Ex.PH). The statements of witnesses were recorded by Gurdip Singh, SI (PW-10). On return to the Police Station, Gurdip Singh, SI PW-10 deposited the case property with Kewal Singh, MHC. On 21.5.2002 an application (Ex.PG/1) was made by Gurdip Singh, SI (PW-10) to the doctor regarding the condition of Baljit Singh and as to whether he was fit for making a statement. The doctor, however, declared him unfit to make a statement. He described all the 23 injuries on the person of the injured Baljeet Singh to be dangerous to life. Besides, Baljeet Singh (deceased) was referred for treatment to DMC (Dayanand Medical College), Ludhiana. Gurdip Singh, SI (PW-10) on return to the Police Station in view of the injuries being declared dangerous to life added the offence under Section 307 IPC by making a report (Ex.PM) in the DDR in this regard. On coming to know about the death of Baljeet Singh, Gurdip Singh, SI (PW-10) went to the Civil Hospital, Ferozepur. His Cr. A. No.885-DB of 2004 [6] dead body was lying at the place which was taken in possession. Inquest report (Ex.PN) in respect of dead body was prepared. At that time the dead body was identified by Nishan Singh and Harjinder Singh (PW-8) and Mehal Singh (PW9). The police papers for getting the post-mortem conducted were handed over to Harbel Singh, Head Constable and Swaran Singh, Constable along with application (Ex.PB/1). On the following day after the death of Baljeet Singh on 24.5.2002 one `Pajama' was produced before SI Gurdip Singh (PW-10) by Swaran Singh, Constable which was taken in possession vide memo (Ex.PO). The `Pajama' is MO-5. The statement of Constable Swaran Singh was recorded and the `Pajama' was deposited with MHC, Police Station, Ghall Khurd. On 12.6.2002, Gurdip Singh and Swaran Kaur (appellants No.1 and 2) were arrested in the presence of Gurkanwaljit Kaur, Lady Constable, Amarjit Singh, Head Constable and other police officials. The cause of their arrest was disclosed and memos to that effect Ex.PP and Ex.PR were prepared. Thereafter, personal search of Gurdip Singh (appellant No.1) was carried out and two currency notes of Rs.50/- each were recovered and memo Ex.PS was prepared. Personal search of Swarn Kaur was conducted by the Lady Constable but nothing was recovered and memo Ex.PT in this regard was prepared. Both the accused were detained in the lock up. Gurdip Singh (appellant No.1) on interrogation in the presence of Lady Constable and Nishan Singh disclosed that he had kept concealed one `Gandasa' under the ground by the side of footpath of the canal minor near the bridge within the limits of Karmuwala about which only he had the knowledge and could get Cr. A. No.885-DB of 2004 [7] the same recovered from the said place. His disclosure statement (Ex.PU) was recorded. Thereafter, Swaran Kaur (appellant No.2) made a disclosure statement (Ex.PV) regarding concealing a `Thapa' by the side of footpath of the canal minor near the bridge of Karmuwala of which only she had the knowledge and could get the same recovered. Gurdip Singh, SI (PW-10) then along with the accused Gurdip Singh (appellant No.1) and Swaran Kaur (appellant No.2) and the two witnesses and Angrej Singh, Constable reached the bridge at Karmuwala in a jeep. While in police custody Gurdip Singh (appellant No.1) in pursuance of his disclosure statement got recovered a `Gandasa' after removing the soil with his hands. Rough sketch (Ex.PU/1) of the `Gandasa' was prepared and it was taken in possession vide memo (Ex.PU/2). A sealed parcel of the `Gandasa' was prepared which is MO-6, rough site plan of the place of recovery (Ex.PU/3) with correct marginal notes was prepared. Swaran Kaur (appellant No.2) in pursuance of her disclosure statement (Ex.PV) got recovered a `Thapa' from the place disclosed by her after removing the soil with her own hands. A rough sketch (Ex.PV/1) thereof was prepared. The `Thapa' was converted into a parcel with the seal of `GS' of Gurdip Singh, SI after receiving back the seal from Nishan Singh. The sealed parcel MO-7 was taken in possession vide memo (Ex.PV/2). Specimen seal was separately prepared and the seal was handed over to Nishan Singh. A rough site plan (Ex.PV/3) of the place of recovery with correct marginal notes was prepared. The statements of the witnesses were recorded. On coming back to the police station the case property was deposited with the MHC. In the course of investigation Cr. A. No.885-DB of 2004 [8] Gurdip Singh, SI (PW-10) arrested the other accused also.
After completion of investigation, charge report (challan) was prepared by Jasbir Singh, SI/SHO and filed in Court of the Illaqa Magistrate. The said Court in view of the offence under Section 302 IPC having been alleged, committed the case to the Court of Sessions for trial which was entrusted to the Additional Sessions Judge, Ferozepur. The learned Additional Sessions Judge, Ferozepur vide order dated 22.4.2003 found sufficient grounds for presuming that the accused had committed an offence punishable under Section 302 IPC. They were accordingly charged on the allegations that both the accused (Gurdip Singh and Swaran Kaur, appellants No.1 and 2) on 21.5.2002 at about 5.30 a.m. in the area of Karmuwala did commit the murder by intentionally causing the death of Baljeet Singh and thereafter committed an offence punishable under Section 302 IPC. The accused-appellants pleaded not guilty to the charge and claimed trial. The prosecution in order to prove its case examined as many as 10 witnesses besides tendered documents in evidence. The statements of the appellants in terms of Section 313 of the Code of Criminal Procedure (`Cr.P.C.' - for short) were recorded. Both the appellants in their respective statements stated that the case was false and the PWs had falsely deposed; besides, it was stated that they had nothing else to say.
In defence, Dr. Hardit Jyoti, Radiologist, Civil Hospital, Ferozepur (DW-1) and Tarlok Singh, Head Constable, MHC, Police Station, Vigilance, Ferozepur (DW-2) were examined and the defence evidence was closed.
Cr. A. No.885-DB of 2004 [9] The learned trial Court after considering the evidence and material on record has convicted the appellants for the offence under Section 302 IPC and sentenced them to undergo imprisonment for life; besides pay a fine of Rs.2,000/- each. Aggrieved against the said judgment and order of the learned trial Court, the appellants have assailed the same by way of the present appeal.
Learned counsel appearing for the appellants has submitted that the case against the appellants is absolutely false and the prosecution has failed to prove its case by leading cogent and convincing evidence. In any case, it is submitted that if the prosecution case is taken as it is, it would show that Gurdip Singh (appellant No.1) had gone to his field and when he returned he saw his wife Swaran Kaur (appellant No.2) in a compromising position with Baljeet Singh (deceased) and, therefore, on account of grave and sudden provocation he assaulted Baljeet Singh (deceased). Therefore, it is submitted that the Exception I to Section 300 IPC would apply and the appellants are not, in amy manner, liable for the offence. In the alternative, it is submitted that the offence even it is proved would be one which does not fall under Section 302 IPC but one which would fall under Section 304, Part-II IPC. All the injuries on the person of the deceased Baljeet Singh, it is submitted, were simple in nature and no injury is shown to have been caused on any vital part of the body. It is submitted that Gurdip Singh (appellant No.1) was armed with a `Gandasa' whereas the injuries as per the medico legal report have mostly been caused with blunt weapon and that too not with full force. Therefore, it is submitted that at the most the appellants Cr. A. No.885-DB of 2004 [10] would be liable for the offence under Section 304, Part-II IPC. Lastly, it is submitted that, in any case, Swaran Kaur (appellant No.2) would not be liable for the offence as it is the prosecution case itself that Gurdip Singh (appellant No.1) had suspicion that his wife Swaran Kaur (appellant No.2) was having illicit relations with Baljeet Singh (deceased). Therefore, in case this was so she would not participate in the commission of murder of Baljeet Singh (deceased) with whom she is said to be having illicit relations.
In response, Mr. S.S. Gill, learned Additional Advocate General, Punjab appearing for the State has submitted that the prosecution has proved its case beyond shadow of doubt. It is submitted that eye witnesses account of Chanan Singh-complainant (PW-3), who is the brother of the deceased Baljeet Singh clearly establishes the nature and manner in which the injuries were caused to Baljeet Singh and on the strength of the same it is submitted that the conviction of the appellants is liable to be maintained and upheld. It is also submitted that the present is not a case of grave and sudden provocation, inasmuch as, there is nothing on record to show that Baljeet Singh (deceased) was seen in a compromising position with Swaran Kaur so as to hold that Gurdip Singh (appellant No.1) got enraged and committed the murder at the heat of passion keeping in view the large number of injuries i.e. 23 injuries on the person of Baljeet Singh (deceased). It is submitted that the present case does not remotely come within the parameters of Section 304, Part-II IPC and it is for all intents and purposes a case under Section 302 IPC.
We have given our thoughtful consideration to the contentions Cr. A. No.885-DB of 2004 [11] of the learned counsel appearing for the respective parties and with their assistance gone through the records.
Chanan Singh-complainant (PW-3) on whose statement (Ex.PB), FIR (Ex.PB/2) was registered has reiterated his version while appearing in Court. He was cross-examined by the learned defence counsel. Chanan Singh (PW-3) in his cross-examination stated as incorrect that Baljeet Singh (deceased) had illicit relations with Swaran Kaur (appellant No.2) and that the same was in the knowledge of all the villagers. It is also stated that Gurdip Singh (appellant No.1) had lodged a protest with him about 25 days earlier regarding the suspicion he had about the illicit relations of Baljeet Singh (deceased) with Swaran Kaur (appellant No.2). It is also stated as incorrect that Baljeet Singh (deceased) went to the house of the accused with Gurdip Singh (appellant No.1) when he was away to the fields and when he returned from the fields he saw him in a compromising position with his wife Swaran Kaur and caused injuries to him and thereafter, he informed the Sarpanch and ex-Sarpanch of the village. Harjinder Singh (PW-8) has deposed that on 21.5.2002 at about 5.45 a.m. he came from his fields to the village. When he reached in front of the door of the house of Gurdip Singh (appellant No.1), he found Baljeet Singh (deceased) son of the elder brother of his father lying there in an injured condition. He found Chanan Singh-complainant (PW-3) and Mehal Singh (PW-9) by his side. They asked him to arrange for a vehicle. He then arranged a vehicle in which Baljeet Singh was taken to the Civil Hospital, Ferozepur, and was admitted there where he was treated by the doctor.
Cr. A. No.885-DB of 2004 [12] Baljeet Singh at that time had worn one shirt and `Pajama' which were soiled with blood. These clothes were removed and handed over to Harjinder Singh (PW-8) by the doctor. He brought the wearing apparels to the village on the same day i.e. 21.5.2002. When the Police visited the spot for investigation, Harjinder Singh (PW-8) produced the wearing apparels before the Police which were converted into parcels and sealed with the five seals bearing impression `GS'. The sealed parcels were taken in possession vide memo (Ex.PH) which was signed by him as a witness. His statement was recorded by the Police. In cross-examination, it is stated by Harjinder Singh (PW-8) that in his statement before the Police he had stated that Mehal Singh (PW-9) and Chanan Singh-complainant (PW-3) had asked him to arrange for a conveyance for removing the injured (Baljeet Singh) to the hospital. Thereafter, it is recorded as incorrect that he stated before the Police that it was Chanan Singh-complainant (PW-3) and Mehal Singh (PW-9) who arranged for conveyance and sent him (Harjinder Singh, PW-8) with Baljit Singh to the Civil Hospital, Ferozepur. Attention of the witness was drawn towards his statement (Ex.DC) recorded under Section 161 Cr.P.C. on 21.5.2002 and he was confronted with the portion `A to A' thereof wherein it was so recorded. Mehal Singh (PW-9) also deposed that about 1¾ years earlier at about 5.30 a.m. he was present in his house when he heard alarm of Chanan Singh (PW-3), on hearing which he went running towards the door of Gurdip Singh. At that time he saw Gurdip Singh (appellant No.1), Saraj Singh (not challaned by the Police), Karaj Singh (declared juvenile) and Swaran Kaur (appellant No.2) running towards the Cr. A. No.885-DB of 2004 [13] house of their brother Shabeg Singh. They had gone running to that place from the door of their house. Gurdip Singh and Swaran Kaur were present in Court and he duly identified them. At that time Gurdip Singh (appellant No.1) was armed with `Gandasa' and Saraj Singh was armed with `Sota'; Karaj Singh was armed with `Sela' and Swaran Kaur (appellant No.2) was armed with `Thapa'. He found his brother Baljeet Singh lying in an injured condition inside the house of Gurdip Singh by the side of the gate itself. At that time, he was lying tied with ropes. Chanan Singh (PW-3) was also present at that time. Both of them i.e. Mehal Singh (PW-9) and Chanan Singh (PW-3) found a knife in the kitchen of the house of Gurdip Singh and with the help of the same they started cutting the rope. In the meanwhile, Harjinder Singh (PW-8) also came there and they asked him to arrange a conveyance for removing Baljeet Singh to the hospital. They brought a jeep and sent Baljeet Singh in that jeep to the hospital. Mehal Singh (PW-9) and Chanan Singh (PW-3) arranged for money. Subsequently, the Police came at the spot which was shown by him to the Police. His statement was recorded by the Police in the hospital. Mehal Singh (PW-9) was cross- examined by the defence. In his statement made before the Police, he had stated that after taking knife from the kitchen of Gurdip Singh (appellant No.1) they had cut the rope of Baljeet Singh (deceased). He also stated that at that time he had seen the accused running towards the house of their brother Shabeg Singh. Attention of the witness was drawn towards his statement (Ex.D.1) recorded under Section 161 Cr.P.C. wherein it was not so recorded. His house is at a distance of 35 kms. from the house of Gurdip Cr. A. No.885-DB of 2004 [14] Singh.
It may, therefore, be noticed that the statement of Chanan Singh (PW-3) who lodged the FIR, Harjinder Singh (PW-8) and Mehal Singh (PW-9) who reached the place of occurrence soon after the incident is quite consistent in material particulars and there is nothing to show that the murder of Baljeet Singh was not committed by Gurdip Singh (appellant No.1). Besides, it may be noticed that the injuries on the person of Baljeet Singh are quite substantial. Dr. Suneer Thakkar, Medical Officer, Civil Hospital, Ferozepur (PW-5) on 21.5.2002 at about 8.30 a.m. examined Baljeet Singh and found as many as 23 injuries on his person:-
1. 4 cm x 0.2 cm incised wound on the scalp on the posterior nuchal line profusely bleeding.
2. 2.5 cm x 0.5 cm lacerated wound on the right occipital region of scalp, profusely bleeding.
3. 2.5 x 0.3 cm lacerated wound on the left eye brow, clotted blood was present.
4. 1.5 cm x 1 cm lacerated wound on the right pinna lower side of tragus, clotted blood was present.
5. 2 cm x 2 cm abrasion on left cheek lateral to left eye, on zygomatic prominence.
6. 25 cm x 25 cm reddish and bluish contusion on the right shoulder extending to right deltoid region.
7. 2.5 cm x 0.5 cm lacerated wound on left cheek.
Cr. A. No.885-DB of 2004 [15]
8. 1 cm x 1 cm incised wound on right elbow tip, profusely bleeding, X-ray was advised.
9. 2 cm x 0.2 cm incised wound on right hand web between thumb and index finger.
10. 10 cm x 8 cm reddish contusion on right forearm posterior lateral side, X-ray was advised.
11. 8 cm x 2 cm reddish contusion on right upper arm horizontally placed.
12. 1 cm x 1 cm incised wound on right lower limb 10 cm below knee.
13. 2 cm x 0.5 cm incised wound on right lower limb with underlying welling 8 cm x 8 cm, X-ray was advised.
14. 1.5 cm x 0.2 cm, 2 cm x 1 cm, 3 cm x 1 cm, 1 cm x 0.2 cm and 0.5 cm x 0.5 cm incised wounds on the right lower leg in close proximity to each other on the anterior and medical side of right leg, X-ray was advised.
15. 12 cm x 2 cm reddish contusion on left shoulder.
16. 20 cm x 15 cm reddish contusion on right scapular region of back.
17. 10 cm x 8 cm reddish contusion on left scapular region of back.
18. 25 cm x 15 cm reddish contusion on left iliac region of back.
19. 40 cm x 30 cm criss cross placed reddish contusion on the lower back.
20. 1 cm x 1 cm abrasion on second and third metacarpo-phalangial joints of right hand.
Cr. A. No.885-DB of 2004 [16]
21. 1 cm x 1 cm abrasion on 5th PIP joint of right hand.
22. 4 cm x 1 cm incised wound on left little finger, posterior side.
23. Gross swelling on left dorsem of hand, X-ray was advised.
All these injuries except injuries No.8, 10, 13, 14, 22 were declared as simple and on receiving the X-ray report No.634/HD/FZR/-2- 3063 dated 21.5.2002 injuries No.8, 10, 13, 14 and 22 were declared as simple. The weapon used for injuries No.1, 8, 9, 12, 13, 14 and 22 was sharp and for other injuries it was blunt. The probable duration of all the injuries was within 12 hours. The doctor (PW-5) had brought the original M.L.R., which bore his signatures. The correct copy thereof prepared in the same process was Ex.PF, and pictorial diagram showing the seat of injuries is Ex.PF/1. Dr. Suneer Thakkar, Medical Officer (PW-5) was cross- examined. It is stated that as per MLR there was no evident injury on any vital organs. Besides, injury on the scalp with the blunt weapon may look like an incised wound sometimes. It is also stated that when the patient was admitted in the hospital, he was conscious. Baljeet Singh died on 24.5.2002 and his post-mortem was conducted on 25.5.2002 by Dr. Ramesh Kumar, Medical Officer, Civil Hospital, Ferozepur (PW-4). He found the following injuries on his person:-
"1. Stitched wound 4 cm long on left side of head on dissection clotted blood was present in muscle tissue.
2. Stitched wound 3 cm long on back side of head on dissection a clotted blood was present.
Cr. A. No.885-DB of 2004 [17]
3. Stitched wound 3 cm. long on left eye brow. On dissection clotted blood was present.
4. Stitched wound 2 cm long on right pinna. On dissection clotted blood was present in tissue.
5. Abrasion 2 cm x 2 cm on left face with soft scab on dissection underlying muscles were lacerated. Clotted blood was present.
6. Reddish bluish contusion on all over the right shoulder joint. On dissection underlying muscles were lacerated and the clotted blood was present.
7. Stitched wound 1 cm long on back of right elbow. On dissection clotted blood was present in tissue.
8. Stitched wound 2 cm long on right hand on the web of thumb and index finger. On dissection clotted blood was present.
9. Reddish bluish contusion 12 cm x 10 cm on back of right forearm. On dissection clotted blood was present.
10. Bluish contusion 10 cm x 4 cm on back of right arm on dissection underlying muscles were lacerated. Clotted blood was present.
11. Stitched wound 1.5 cm long on front of right limb. On dissection clotted blood was present on muscle tissue.
12. Two stitched wound closed to each other on front of right leg. On dissection underlying muscles were lacerated and the clotted blood was present.
Cr. A. No.885-DB of 2004 [18]
13. Reddish bluish contusion 14 cm x 4 cm on back of left shoulder joint. On dissection underlying muscles were lacerated and clotted blood was present.
14. Reddish contusion on all over the left side of hip joint. On dissection underlying muscles were lacerated and clotted blood was present.
15. Blueish contusion on all over the lower back. On dissection clotted blood was present.
16. Abrasions on all over the back of right hand covered with soft scab. On dissection underlying muscles were lacerated and clotted blood was present.
17. Reddish bluish contusion on all over the back of left hand. On dissection clotted blood was present on muscle tissue.
18. Stitched wound 4 cm long on back of right little finger. On dissection clotted blood was present. All the other organs were found healthy. The cause of death in this case is due to shock and haemorrhage as a result of injuries which were ante mortem in nature and were sufficient to cause death in an ordinary course of nature."
Dr. Ramesh Kumar, Medical Officer (PW-4) was cross-
examined and he stated that he did not remember that some time blunt weapon on the bony promienece may look like a lacerated wound. It is also stated that no major organ in the body was found to be ruptured.
Dr. Hardit Jyoti, Radiologist, Civil Hospital, Ferozepur (DW-1) Cr. A. No.885-DB of 2004 [19] was examined in defence. On 21.5.2002, he was working as a Radiologist at the Civil Hospital, Ferozepur. On the said date he conducted X-ray examination of injuries No.8, 10, 13, 14 and 23 on the person of Baljeet Singh. He observed injury No.8 which was on the right elbow, injury No.10 which was on the right forearm, injuries No.13 and 14 which were on the right leg and injury No.23 which was on the left hand showed no bony injury. By bony injury he meant no fracture or dislocation. His report to that effect was Ex.D.2 which was in his hand.
In the circumstances and keeping in view the nature of the eye witness account, it may be noticed that Gurdip Singh (appellant No.1) indeed had committed the murder of Baljeet Singh. Chanan Singh (PW-3) in his statement (Ex.PB) before the Police on the basis of which FIR (Ex.PB/2) was recorded has stated that the cause of the grudge was that Gurdip Singh (appellant No.1) had a doubt that his brother Baljeet Singh (deceased) had illicit relations with his wife Swaran Kaur (appellant No.2). While appearing in Court Chanan Singh (PW-3) accepted his statement (Ex.PB) made before the Police. It is specifically deposed by him that Gurdip Singh accused (appellant No.1) had suspicion that Baljeet Singh (deceased) had been visiting his house in his absence and had relations with his wife Swaran Kaur (appellant No.2). In cross-examination, it is also stated by Chanan Singh (PW-3) that Gurdip Singh (appellant No.1) had lodged a protest with him about 25 days earlier to the incident regarding his suspicion about the illicit relations of Baljeet Singh (deceased) with Swaran Kaur (appellant No.2). Therefore, the motive of the incident is quite Cr. A. No.885-DB of 2004 [20] established, inasmuch as, Gurdip Singh (appellant No.1) suspected that Baljit Singh (deceased) had illicit relations with his wife Swaran Kaur (appellant No.2). It is on account of the said reason that the murder of Baljeet Singh had been committed. Chanan Singh-complainant (PW-3), who is the brother of deceased in his statement (Ex.PB) and while appearing in Court has given an account of the injuries that had been caused by Gurdip Singh (appellant No.1), Swaran Kaur (appellant No.2) and their children Karaj Singh and Saraj Singh. It is stated that all the four accused had dragged Baljeet Singh in the house and they tied him with ropes and then started giving injuries to him with their weapons. The injuries on the person of Baljeet Sigh (deceased), as have already been noticed above, are quite substantial in number. In terms of the medico legal report there are 23 injuries on the person of Baljeet Singh (deceased) and even as per the post- mortem report there are 18 injuries on his person but it is not shown as to which of the accused had caused which injury. It may be noticed that Saraj Singh one of the accused has not been sent up for trial by the Police. The other accused Karaj Singh is being tried by the Juvenile Court at Ferozepur.
It may, however, be noticed that no specific role is attributed to Swaran Kaur (appellant No.2) and neither is it shown that she had any motive to commit the murder of Baljeet Singh (deceased). The allegations of the prosecution are that she was having some kind of illicit relations with him. The mere fact that Swaran Kaur (appellant No.2) had a relation with Baljeet Singh (deceased) would not be such a circumstance so as to impel Swaran Kaur (appellant No.2) to commit murder of Baljeet Singh. The fact Cr. A. No.885-DB of 2004 [21] that Swaran Kaur (appellant No.2) had relations with Baljeet Singh her endeavour would be to save Baljeet Singh (deceased) rather than to commit his murder. Therefore, there is no motive for her to commit the murder of Baljeet Singh and even otherwise in the incident that occurred on 21.5.2002 at 5.30 a.m. no role has been attributed to her of having caused injuries on the person of Baljeet Singh. Therefore, she is liable to be given the benefit of doubt. The contention of the learned counsel for the State that she would join the other accused to commit the murder so as to show her innocence as regards her illicit relationship with Baljeet Singh (deceased) is too far fetched so as to record a finding of guilt on the basis of evidence and material as has been adduced.
The question, however, that requires to be considered is whether it can be said that there was grave and sudden provocation for Gurdip Singh (appellant No.1) to commit the murder of Baljeet Singh. It may be noticed that the defence has no where shown that Baljeet Singh (deceased) was seen in a compromising position with Swaran Kaur (appellant No.2). It is only a suggestion that was put to Chanan Singh- complainant (PW-3) and this was also denied by him. In K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605, it was held that the test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to loose his self-control. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave Cr. A. No.885-DB of 2004 [22] and sudden provocation for committing the offence. The fatal blow, it was observed, should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation. In the said case the wife of the accused had confessed to him that she had illicit intimacy with the deceased who was not present there. In such circumstances, it was held that it can be assumed that he (accused) had momentarily lost his self-control. But then after this when he drove his wife and children to a cinema, left them there, went to his ship, took a revolver on a false pretext, loaded it with six rounds, did some official business there, and drove his car to the office of the deceased and then to his flat, went straight to the bed-room of the deceased and shot him dead and between the time when he left his house, and the time when the murder took place, three hours had elapsed, there was sufficient time for the accused to regain his self-control, even if he had not regained it earlier. On the other hand, his conduct clearly showed that the murder was a deliberate and calculated one. The mere fact that before shooting, the accused abused the deceased and abuses provoked an equally abusive reply could not conceivably be a provocation for the murder. Therefore, the facts did not attract the provisions of Exception I to Section 300 IPC.
In the present case, there is no confession by Swaran Kaur (appellant No.2) wife of Gurdip Singh (appellant No.1) regarding her illicit intimacy with Baljeet Singh (deceased). Neither has it been shown by the defence that Swaran Kaur (appellant No.2) was in a compromising position Cr. A. No.885-DB of 2004 [23] with Baljeet Singh which may have enraged Gurdip Singh (appellant No.1) to commit his (Baljeet Singh's) murder. Rather, it has come in the cross- examination of Chanan Singh (PW-3) that Gurdip Singh (appellant No.1) had lodged a protest with him about 25 days earlier regarding his suspicion about illicit relations between Baljeet Singh and Swaran Kaur. As such, it is indeed not a case of sudden and grave provocation. Therefore, Exception I to Section 300 IPC is clearly not attracted in the facts and circumstances of the case and it cannot be said that Gurdip Singh (appellant No.1) had committed the murder of Baljeet Singh under sudden and grave provocation and in the heat of passion.
Learned counsel for the appellants in support of his contention that, in any case, the present case would be one which would fall within the parameters of Section 304, Part II IPC has placed strong reliance on the case of Harish Kumar v. State (Delhi Administration), AIR 1993 SC 973; Ramkishan v. State of Rajasthan, 1997 (4) RCR (Cr.) 302 and Masumsha Hasanasha Musalman v. State of Maharashtra, 2000 (2) RCR (Cr.) 116 and Dev Singh v. State of Punjab, 1999 (4) RCR (Cr.) 820 (P&H). The complainant-Chanan Singh (PW-3), who is the brother of the deceased Baljeet Singh, is the witness to the occurrence. On 21.5.2002, when he was returning to his house, his younger brother Baljeet Singh (deceased) was going out. When he reached near the house of Gurdip Singh (appellant No.1) then he (Gurdip Singh) armed with `Gandasa' along with his sons and wife Swaran Kaur (appellant No.2) came out and they are attributed to have inflicted injuries with their respective weapons. The medical evidence that Cr. A. No.885-DB of 2004 [24] has come on record from the statements of Dr. Ramesh Kumar (PW-4) who conducted the post-mortem on the dead body of Baljeet Singh found as many as 18 injuries. The cause of death was opined to be due to shock and haemorrhage as a result of the injuries which were ante-mortem in nature and sufficient to cause the death in the ordinary course of nature. Besides, Dr. Suneer Thakkar (PW-5), who medically examined Baljeet Singh on 21.5.2002 found as many as 23 injuries. All the injuries except injuries No.8, 10, 13, 14 and 22 were declared simple and on receiving the X-ray report injuries No.8, 10, 13, 14 and 22 were also declared simple. The weapon used for injuries No.1, 8, 9, 12, 13, 14 and 22 was sharp and for the other injury it was blunt. Dr. Hardit Jyoti, Radiologist (DW-1) submitted his report (Ex.D.2) as regards injuries No.10, 13 and 14 as also 23 which shows no bony injury by which he meant that there was no fracture or dislocation. The question that requires to be ascertained is whether the case is one which would fall under Exception "Thirdly" to Section 300 IPC, that is, if the act is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
The Supreme Court in Virsa Singh v. State of Punjab, AIR 1958 SC 465 for the applicability of Exception Thirdly of Section 300 IPC inter alia held that the prosecution must prove the following fact before it can bring the case under Section 300 "thirdly"; first, it must establish, quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must Cr. A. No.885-DB of 2004 [25] be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout), the offence is murder under Section 300 "thirdly". It does not matter that there was no intention to cause death, or that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (there is no real distinction between the two), or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death.
It was contended in the said case that the intention that the section requires must be related, not only to the bodily injury inflicted but also to the clause, "and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death". It was observed that this was a favourable argument in this kind of case but was fallacious. If there was an intention to inflict an injury that was sufficient to cause death in the Cr. A. No.885-DB of 2004 [26] ordinary course of nature, then the intention is to kill and in that event, :
"thirdly" would be unnecessary because the act would fall under the first part of the section, namely,: "if the act by which the death is caused is done with the intention of causing death". In the opinion of their Lordships the two clauses were disjunctive and separate and the first is subjective to the offender; "if it is done with the intention of causing bodily injury to any person". It was further observed that it must, of course, first be found that bodily injury was caused and the nature of the injury must be established. That is to say, whether the injury is on the leg or the arm or the stomach, how deep it penetrated, whether any vital organ was cut and so forth. These are purely objective facts and leave no room for inference or deduction: to that extent the enquiry is objective; but when it comes to the question of intention, that is subjective to the offender and it must be proved that he had an intention to cause the bodily injury that is found to be present. One that was found, the enquiry shifts to the next clause; "and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death". It was observed that the first part is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it that is to say, if the circumstances justify an inference that a man's intention was only to inflict a blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though an injury to the heart by accident, is shown to be present, the intention to inflict an injury in that region, or of that nature, is not proved. In that case, the first part of the clause does not come Cr. A. No.885-DB of 2004 [27] into play but once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause that is "and the bodily injury intended to be inflicted" is merely descriptive. All this means is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present as the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference of deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention.
In the present case the bodily injuries are present. The nature of injuries has been proved. The question, therefore, that requires to be seen is whether there was an intention to inflict the bodily injuries that to say that it was not accidental or unintentional or that some kind of injury was intended. Keeping in view the motive of Gurdip Singh (appellant No.1) that he had suspected his wife Swaran Kaur (appellant No.2) to be having illicit relations with Baljeet Singh (deceased), it can be said that there was an intention to inflict the injuries and these were not, in any manner, accidental or unintentional. Therefore, these elements having been established, it is to be seen whether these were sufficient to cause death in the ordinary course of nature. This part of the inquiry is purely objective and inferential. The nature of the injuries have been held by the doctor to be sufficient to cause death in the ordinary course of nature. Besides, the injuries are substantial in number, which cannot be said to be accidental or unintentional.
Cr. A. No.885-DB of 2004 [28] Therefore, there was an intention to cause the death; besides death indeed had occurred. The contention of the learned counsel that most of the injuries were simple in nature but keeping in view the substantial number and these being on all parts of the body; besides also the fact that the legs of Baljeet Singh (deceased) were tied and then the injuries were inflicted leaves no manner of doubt in our mind that there was a clear cut intention to cause his death and the injuries were not such which would fall within "thirdly" of Section 300 IPC.
The cases referred to by the learned counsel for the appellants are inapplicable to the facts of the present case. In Harish Kumar v. State (Delhi Administration) (supra) the evidence established that accused alone had inflicted injuries which caused death. The deceased died two days after infliction of the injuries. In the said circumstances, it was held, that though the injuries resulted in the death of the deceased, it can not be conclusively said that it was sufficient to cause his death. In the circumstances, the accused in the said case was convicted for the offence under Section 304, Part-II IPC and not under Section 302 IPC.
In Ramkishan v. State of Rajasthan (supra), the doctor who conducted the post-mortem examination in the said case noticed as many as 11 injuries on the dead body. Out of the injuries 8 were incised wound and other injuries were caused by blunt weapon. Out of the incised wound, there was some injuries on the legs and left thumb and remaining three on the head of the deceased. At the trial, it was stated by the doctor that the injuries found on the deceased were sufficient to cause death in the Cr. A. No.885-DB of 2004 [29] ordinary course of nature. In the facts and circumstances, it was held, that the accused therein intended to cause injuries to the deceased but after attack they (all accused five in number) inflicted grievous hurt to the deceased. In the said circumstances it was held to be a case which would fall under Section 304 part-II and not under Section 302 IPC. The same was confined to the facts and circumstances of the said case.
In Masumsha Hasanasha Musalman v. State of Maharashtra (supra) there were 10 injuries on the body of the deceased and only one injury was serious, other injuries were caused during scuffle. It was held that the accused had no intention to commit death and the conviction of the accused under Section 302 IPC was set aside and the accused therein was convicted under Section 304, Part II IPC.
In Dev Singh v. State of Punjab (supra), this Court considered the case where the accused though armed with sharp edged weapon had caused head injuries with the blunt side and that too not with full force. It was observed that an accused having chosen the head though knew that it can be dangerous and even fatal but use of blunt side of weapon indicated that they did not intend the killing. The conviction was changed from 302 IPC to that under Section 304, Part II IPC.
Therefore, it is to be seen in the facts and circumstances of each case as to whether there was an intention to inflict the bodily injury so as to cause the death and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. In the facts and circumstances, we have already held that the bodily injuries were sufficient to cause death. This is for the reason that there was motive to cause death, Cr. A. No.885-DB of 2004 [30] the number of injuries caused and the fact that Baljeet Singh (deceased) had been tied and then caused injuries and after the accused ran away he was untied by the complainant side. Therefore, in the circumstances, it cannot be said that the present is a case which would fall under Section 304, Part II and not under Section 302 IPC.
However, as already noticed, we have held that there is no intention of Swaran Kaur (appellant No.2) to cause the death of Baljeet Singh.
For the foregoing reasons, the appeal of Gurdip Singh (appellant No.1) is dismissed and the order of conviction and sentence passed by the learned trial Court is maintained. However, qua Swaran Kaur (appellant No.2), the appeal is allowed by giving her the benefit of doubt and the order of conviction and sentence passed qua her is set aside. Swaran Kaur (appellant No.2) is already on bail and the bail bonds furnished by her are discharged.
(S.S. Saron) Judge December 9, 2008. (Sabina) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes/No