Punjab-Haryana High Court
Harinder Singh @ Babba And Another vs State Of Punjab on 16 November, 2010
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No. 1944-SB of 2002
Date of decision: November 16, 2010
Harinder Singh @ Babba and another
.. Appellants
Vs.
State of Punjab
.. Respondent
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Sanjiv Sharma, Advocate for the appellants.
Mr. Amit Chaudhary, AAG, Punjab for the respondent.
A.N. Jindal, J
The accused-appellant Harinder Singh alias Babba and
Anupinder Singh alias Kitta were tried for causing injuries to Madhu Bala,
Babu Lal and Yogesh Kumar. Ultimately, they, vide judgment dated
7.11.2002 passed by the learned Additional Sessions Judge, Patiala, were
convicted and sentenced as under :-
Anupinder Singh alias Kitta
U/s 307 IPC : Rigorous imprisonment for five years and to
pay fine of Rs.500/-.
U/s 324 IPC : Rigorous imprisonment for six months.
Harinder Singh alias Babba
U/s 307/34 IPC : Rigorous imprisonment for five years and to
pay fine of Rs.500/-.
U/s 324/34 IPC : Rigorous imprisonment for six months.
They were further sentenced to undergo rigorous imprisonment
for four years and to pay fine of Rs.500/- each under Section 450/34 IPC.
The facts in brief are that the complainant Babu Lal was
married to Madhu Bala. Sonu, sister of his wife was married to Harinder
Singh alias Babba 4-5 months prior to the occurrence. As a matter of fact,
Sonu was earlier married 12-13 years back to somebody else and she had a
daughter from the said marriage. Harinder Singh alias Babba was not
disclosed this fact by the complainant and his wife, therefore, he felt
annoyed. He was threatening Sonu, Madhu Bala and Babu Lal to kill as
they had concealed the material facts at the time of marriage of Sonu with
Criminal Appeal No. 1944-SB of 2002 -2-
***
him. On 19.6.1999, at about 4.00 p.m. Sonu came to the house of the complainant and disclosed that her husband had been beating her for not disclosing her first marriage and threatening to kill her and her child. However, the complainant consoled her that the matter could be settled with the intervention of the Panchayat. However, after taking the dinner, they went to sleep. On the next day i.e. 20.6.1999, at about 4.00 a.m. both the accused came and knocked the door. Anupinder Singh alias Kitta was having knife in his hand. Harinder Singh alias Babba enquired about Sonu and started speaking loudly. Resultantly, all the members of the family woke up. Harinder Singh alias Babba caught hold of the complainant by his neck and abused him and told that they had cheated him, therefore, they would be killed. However, the complainant told that since he had performed the love marriage, therefore, he was not at fault. At this, Anupinder Singh alias Kitta gave a knife blow in his chest. When Madhu Bala came out in order to save him, then he again gave a knife blow on her left arm and then third knife blow was given by him in her stomach on the left side. When their son Yogesh Kumar came forward, then Anupinder Singh alias Kitta gave a knife blow in his chest. On raising hue and cry, both the accused ran away. The injured were taken to the A.P. Jain Hospital, Rajpura by their neighbour Amrik Singh. As Madhu Bala did not regain consciousness due to injuries suffered by her, therefore, statement of Babu Lal was recorded on 20.6.1999, on the basis of which FIR Ex.PG/2 was registered. During investigation, blood stained clothes of the injured were taken into possession vide memo Ex.PL. Investigating Officer prepared the rough site plan Ex.PM. On 1.7.1999, Anupinder Singh alias Kitta was arrested and consequently, on 2.7.1999, knife was got recovered by him. Similarly, Harinder Singh alias Babba was arrested by ASI Sukhdev Singh on 20.7.1999. On completion of the investigation, challan against the accused was presented in the Court.
The accused were charged under Sections 307/324/450 read with Section 34 IPC, to which they pleaded not guilty and opted to contest.
In order to substantiate the charges, the prosecution examined Dr. Asdeep Singh (PW1), Madhu Bala (PW2), Babu Lal (PW3), Yogesh Kumar (PW4), ASI Sukhdev Singh (PW5), ASI Ashok Kumar (PW6), Dr. Criminal Appeal No. 1944-SB of 2002 -3- *** Kulwinder Singh (PW7), HC Joginder Singh (PW8) and C. Kashmir Singh (PW9).
When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. However, the accused led no evidence in defence.
The trial resulted into conviction.
I have been informed that Harinder Singh alias Babba has expired. However, there is no such evidence on the record.
Arguments heard. Record perused.
Mr. Sanjiv Sharma, Advocate for the appellants, without assailing the prosecution version as a whole has urged that even if the version is accepted in its entirety, then also the prosecution has failed to prove any requisite intent or knowledge and also the nature of injuries which may be sufficient to bring home the offence against the accused under Section 307 IPC. In order to determine whether the offence under Section 307 IPC is made out against the accused, I need to reproduce the statement of Dr. Asdeep Singh (PW1). On 20.6.1999, he medico-legally examined Babu Lal and found the following injury on his person :-
"An incised wound 2 cms x 1 cm over left lower chest 10 cms from xiphoid process of sternum. Clotted blood present."
He proved the copy of the MLR pertaining to Babu Lal as Ex.PA and vide his opinion Ex.PA/1 he declared the said injury as simple in nature. On the same day, he medico-legally examined Yogesh Kumar and found the following injury on his person :-
"An incised wound 3 cms x 1 cm on right side of chest 10 cms below right nipple. Clotted blood present."
He proved his MLR Ex.PB and his opinion Ex.PB/A, vide which he declared the said injury as simple in nature. On the same day, he medico-legally examined Madhu Bala and found the following injuries on her person :-
Criminal Appeal No. 1944-SB of 2002 -4-*** "1. An incised wound 3 cms x 1 cm inner side of left forearm in its middle. Clotted blood present.
2. An incised wound 2 cms x 1 cm inner side of left forearm in its middle, 1 cm below injury No.1. Clotted blood present.
3. An incised wound 3 cms x 1 cm over left abdomen, 14 cms to left of umbilicus. Clotted blood present."
He proved copy of the MLR Ex.PC and vide opinion Ex.PC/1 he opined that the injury No.3 may be dangerous to life. However, during cross examination, he accepted that vide his report Ex.PC/1, he had opined that the injury could be dangerous to life.
Dr. Kulwinder Singh (PW7) is also an important witness in this connection. He, when operated upon and explored the injury, observed as under :-
"There were two perforations in descending column (0.75 x 0.5 cm, 0.15 x 0.5 cm) sized which were closed in two layers. Complete hemostat was achieved and wound was closed in layers after putting corrugated drain. ASD was done..."
The evidence further reveals that the injured remained admitted since 20.6.1999 till 21.7.1999. During cross examination he has admitted that depth of the wound was not recorded in the operation notes and he also did not note in the operation notes that the injury could be fatal in the absence of proper medical treatment.
In order to determine the requisite intent and knowledge statement of Madhu Bala also needs to be referred. She, while appearing in the witness box as PW-2, has stated that the accused came to their house and threatened that they would kill the family. The accused Harinder Singh alias Babba threatened that he will marry as per his own choice and thereafter, Anupinder Singh alias Kitta accused gave them injuries. It may further be referred that the motive to commit the crime was against the complainant party for the reason that the true facts were not disclosed to Harinder Singh alias Babba regarding first marriage of Sonu while Criminal Appeal No. 1944-SB of 2002 -5- *** arranging her marriage with the former.
In order to amount the attempt to murder the following two ingredients of the offence must be present :-
i) an intention or the knowledge to commit the murder;
ii) the doing of an act towards it.
What is material is the intention or the knowledge and not the consequence of the act done for the purpose of carrying out the intention.
This section clearly contemplates an act which is done with the intention of causing death but which fails to bring about the intended consequence on account of the intervention of a cause operating independently of the volition of the agent. To determine whether an act falls within the ambit of Section 307 IPC, on the wording of this section, three considerations appear to be essential :-
i) the nature of the act done;
ii) the intention or knowledge of the accused; and
iii) the circumstances under which the act is done.
Much stress has been given upon the words intention or knowledge of the accused. Intention for the purpose of this section proceeds the act attributed to accused. The intention could be gathered from all the circumstances and not merely from the consequences that ensue viz. the nature of the weapon used; manner in which it is used; motive for the crime; severity of the blow; part of the body where the injury is inflicted are some of the factors which may be taken into consideration to determine the intention.
In the instant case, it was a love marriage, the accused had no direct enmity with Madhu Bala and they may be having grudge against Sonu who did not disclosed about her earlier alliances to him prior to marrying to him. Secondly, the main accused Harinder Singh alias Babba who has been cheated and deceived was empty handed and they did not cause any injury to Sonu. Even Anupinder Singh alias Kitta, to whom all Criminal Appeal No. 1944-SB of 2002 -6- *** the injuries were attributed caused simple injuries to the injured Yogesh Kumar and Babu Lal and only one grievous injury was caused by him with the knife to Madhu Bala, therefore, no inference could be drawn that the accused had any requisite intention to kill Madhu Bala only. Had they any such intention to kill, then they would have made Babu Lal as their first target who had mediated the marriage.
The other ingredient with regard to knowledge which is purely objective of nature and has been left to the opinion of the experts and in the instant case Dr. Asdeep Singh (PW1) had categorically stated that the injury could be dangerous to life. He has not stated that the injury was sufficient to cause death.
An offence under Section 307 IPC is a very serious offence and it requires the same very factors to be proved as are needed to prove the offence under Section 299 IPC except that in this case, the act falls short of death of the deceased which is necessary under that Section. Some times it becomes very difficult to differentiate an offence under Section 307 IPC and under Sections 324, 325, 326 IPC etc. In both the cases, the injuries may be there. There may be existence of motive or intention or knowledge on the part of the wrong doer, care, therefore, has to be taken in such cases. There may not be wrong application of the evidence looking to the serious consequences following as the penalty prescribed under them vary to a great extent. The word used under Section 326 and 307 IPC are synonymous with slight variation. The words used as "dangerous to life"
under Section 326 IPC indicate the injury likely to cause death, whereas, the meaning of the word "dangerous to life" under Section 307 IPC means that the injury is sufficient to cause death as stated by Taylor on "Principles and Practice of Medical Jurisprudence", 11th ed., p. 230 : The meaning of the word 'dangerous to life' is left entirely to the professional knowledge of a witness. It is not sufficient that he should make a simple assertion that the wound was dangerous to life; he must be prepared to state to the Court by satisfactory reasons for this opinion; and these reasons may be rigorously inquired into by counsel for the defence. Danger to life primarily depends upon haemorrhage, shock or damage to a vital organ; and secondly, on the chance of complications such as infection leading to septicaemia payaemia, Criminal Appeal No. 1944-SB of 2002 -7- *** tetanus or gas generence and of infection of particular parts or tissues pneumonia, pleurisy, empyema, paricarditis, meningitis or peritonis; or more remotely to the effects of scaring causing stricture (or the urethra, oesophagus, out, etc.), paralysis, urinary infection etc. As a general principle, the Court is likely to consider as dangerous to life in a legal sense only those words in which the danger is imminent. The law appears to contemplate the more immediate rather than the more, remote possible danger.
As stated by Modi on 'Medical Jurisprudence and Toxicology' 21st ed., p. 275 : Danger to life should be imminent before the injuries are designated 'dangerous to life' such injuries are extensive, and implicate important structures or organs. So that they may prove fatal in the absence of surgical aid. For instance, a compound fracture of the skull, a wound of a large 'artery' or rupture of some internal organ, such as the spleen, should be considered dangerous to life. But the injuries which prove fatal remotely by intercurrent diseases, such as tetanus, erysipelas, etc. should not be considered as dangerous. The opinion of these celebrated authors clearly reveals that danger to life from an injury should be imminent to constitute it as a dangerous one. When the injuries inflicted are not imminently dangerous to life and are simple in nature, conviction under Section 307 IPC is liable to be set aside.
The crux of the matter is that the nature of injuries before the same are declared to be dangerous to life, in the terms of Section 307 IPC, must be eminently dangerous to life irrespective of the result thereof. The same view was expressed by this Court in cases Tej Ram v. State of Punjab, 1987 (1) R.C.R. (Criminal) 611 and State of Punjab v. Tara Singh 1987 (1) R.C.R. (Criminal) 184 wherein it was observed that the injury described by the doctor as 'dangerous to life' and if not treated i.e. to say that but for timely medical aid the injured was likely to die. Such type of opinion is not sufficient to attract the provisions of Section 307 IPC which envisages an injury sufficient in the ordinary course of nature to cause death, such injury would fall within the ambit of clause Eighthly of Section 320 IPC, would be punishable under Section 326 IPC and in view of such opinion, charge under Section 307 IPC, cannot be sustained.Criminal Appeal No. 1944-SB of 2002 -8-
*** In the instant case also, though the injury suffered by Madhu Bala was on the vital part, yet, it having been not repeated and was not sufficient to cause death, could not be termed as dangerous to life, however, since she remained confined in the hospital; unable to do the daily pursuit for one month and was caused with sharp edged deadly weapon, therefore, the accused could not be convicted for the offence under Section 307 IPC and the offence if any committed by him was covered under clause Eighthly of Section 320 punishable under Section 326 IPC. Similar observations were made by this Court in case Pritam Singh and another v. State of Punjab 2010 (3) R.C.R. (Criminal) 395.
No other argument has been advanced.
In the wake of aforesaid discussions, this appeal is partly accepted, the accused are acquitted of the charges under Section 307 IPC, however, the conviction is converted into Section 326 IPC. Similarly, conviction ordered against the accused under Section 324/450 read with Section 34 IPC is also maintained. However, the accused persons are ordered to undergo rigorous imprisonment for 1- ½ years under Sections 326, 450 read with Section 34 IPC without any alteration in the sentence of fine. Further the conviction and sentence awarded against them under Section 324 IPC is upheld.
However, the appeal qua Harinder Singh alias Babba stands abated.
November 16, 2010 (A.N. Jindal) deepak Judge