Punjab-Haryana High Court
Jagdev Singh And Others vs State Of Punjab on 23 January, 2013
Author: S.S. Saron
Bench: S.S. Saron, Paramjeet Singh
CRA No.735-DB of 2006 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA No.735-DB of 2006.
Date of decision: 23.1.2013
Jagdev Singh and Others
..... Appellants
Versus
State of Punjab
..... Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON.
HON'BLE MR. JUSTICE PARAMJEET SINGH.
Present : Mr. Vivek Suri, Advocate for the appellants.
Mr. S.S. Dhaliwal, Addl. A.G., Punjab for the State.
Crl.Rev.No.352 of 2007.
Surinder Kaur and another
..... Petitioners
Versus
Jagdev Singh and others
..... Respondents
Present : None for the petitioners.
Mr. Vivek Suri Advocate for respondents No.1 to 7.
Mr. S.S. Dhaliwal, Addl. A.G., Punjab
for respondent No.8.
***
S.S. SARON, J.
This order will dispose of Criminal Appeal No.D-735-DB of 2006 filed by Jagdev Singh and others against the State of Punjab and Criminal Revision No.352 of 2007 filed by Surinder Kaur and Paramjit Singh CRA No.735-DB of 2006 -2- against Jagdev Singh and others as also State of Punjab as these arise out of the same judgment and order dated 04.09.2006 passed by the learned Additional Sessions Judge, Sangrur. The Criminal Appeal No.D-735-DB of 2006 has been filed by the appellants against the judgment and order dated 4.9.2006 passed by the learned Additional Sessions Judge, Sangrur whereby Jagdev Singh (appellant No.1) has been convicted for the offence under Section 302 Indian Penal Code ("IPC" - for short), Pritam Singh (appellant No.2) has been convicted for the offence under Section 323 IPC; besides, Baljinder Singh and Ranjit Singh (appellants No.3 and 4) have been convicted for the offence under Section 324 IPC. Jagdev Singh (appellant No.1) was sentenced to undergo life imprisonment, besides, pay a fine of Rs.5000/- and in default thereof, to undergo further rigorous imprisonment for three months for the offence under Section 302 IPC, Pritam Singh (appellant No.2) was sentenced to undergo rigorous imprisonment for one year for the offence under Section 323 IPC; besides, Baljinder Singh and Ranjit Singh (appellants No.3 and 4) were sentenced to undergo rigorous imprisonment for two years each for the offence under Section 324 IPC.
Surinder Kaur and Paramjit Singh have filed Criminal Revision No.352 of 2007 praying for acceptance of their revision petition and for setting aside the judgment dated 04.09.2006 passed by the learned Additional Sessions Judge, Sangrur to the extent that Jang Singh and Jarnail Singh have been acquitted by giving the benefit of doubt and for convicting them for the offences punishable under Section 302 read with Sections 148 and 149 IPC and for sentencing them accordingly; besides, for enhancing the sentences awarded to Pritam Singh and Ajaib Singh for the offences punishable under Section 302 read with Sections 148 and 149 IPC and also for enhancing the CRA No.735-DB of 2006 -3- sentences of Baljinder Singh and Ranjit Singh by converting their offence to that under Section 302 read with Sections 148 and 149 IPC. The facts are, however, taken from the criminal appeal.
The FIR (Ex.PO/2) was registered on the statement of the complainant Bharpur Singh son of Sant Ram, resident of village Bhanbauri, Police Station Dhuri (PW-4). It is alleged by the complainant (PW-4) that he does labour work. Jora Singh (deceased), his younger brother was a Chowkidar of village Bhanbauri and being Chowkidar of the village, he fixed duties of the villagers for 'Thikri Pehra' (voluntary night patrol watchman duties by the villagers) as per their turn. On 28.9.2001 after deputing Jagdev Singh (appellant No.1) on 'Thikri Pehra', Jora Singh was returning to their house. When he reached near the house of Bhage, at that time the complainant (Bharpur Singh-PW-4) was standing near the house of Piara Singh. It was about 8.30 p.m. Then Jang Singh (since acquitted) son of appellant No.1 - Jagdev Singh armed with a 'soti'; Bitta Singh (Baljinder Singh - appellant No.3) son of Jagdev Singh (appellant No.3) armed with a 'gandasa'; Kukna (Ranjit Singh - appellant No.4) son of Jagdev Singh armed with a 'gandasa'; Jagdev Singh (appellant No.1) armed with a 'gandasa'; Pritam Singh (appellant No.2) armed with a 'gandasa'; Ajaib Singh (who has since undergone his sentence) armed with a 'soti'; Jarnail Singh son of Lal Singh armed with a 'soti' all residents of village Bhanbauri at once came out of the house of Ajaib Singh (who has undergone his sentence). Jang Singh raised a 'lalkara' that Jora Singh (deceased) had not fixed their night duty as per their turn and they would teach him a lesson for the same. On hearing the commotion, Paramjit Singh (petitioner No.2 in the revision petition) son of Gurmail Singh nephew of the complainant (PW-4) and Surender Kaur CRA No.735-DB of 2006 -4- (petitioner No.1 in the revision petition) daughter of the complainant also came at the spot. Then Jang Singh stated as to what were they seeing. On saying this, Jagdev Singh (appellant No.1) inflicted a 'gandasa' blow on the head of Jora Singh (deceased) and inflicted another 'gandasa' blow from its reverse side on his head and he fell down. Jarnail Singh (since acquitted) inflicted a 'soti' blow hitting on the left hand of Jora Singh (deceased) and another 'soti' blow hitting on his right leg. Paramjit Singh, nephew of the complainant (Bharpur Singh-PW-4) came forward to rescue Jora Singh. Then Pritam Singh (appellant No.2) inflicted a reverse 'gandasa' blow on the head of Paramjit Singh. The complainant Bharpur Singh (PW-4) and his daughter Surender Kaur came ahead to save Paramjit Singh and then Bitta Singh (Baljinder Singh - appellant No.3) gave a 'gandasa' blow which hit near the right eye of Surinder Kaur. The complainant while standing near them raised an alarm of 'na maro na maro', else he would die. Then Kukna (Ranjit Singh
- appellant No.4) inflicted a 'gandasa' blow on the complainant. To ward off the same, the complainant raised his left arm and the 'gandasa' hit him on his elbow. Ajaib Singh (who has undergone his sentence) gave a 'soti' blow on his right hand. They all raised a hue and cry on which all the accused ran away from the spot along with their respective weapons. It is alleged that the assailants caused injuries to Jora Singh on his head with an intention to kill him. The other side, it is alleged received minor injuries from the complainant side while it was defending itself. Then Sher Singh, Lambardar of their village got them admitted in the Civil Hospital, Dhuri for treatment, where the doctor gave them first aid. The statement (Ex.PO) was made by by Bharpur Singh complainant (PW-4) before SI Manmohan Singh, Police Station Dhuri (who died before his deposition in the trial Court) and he CRA No.735-DB of 2006 -5- signed it in Punjabi which was attested by the latter. Police proceedings dated 29.09.2001 were recorded by SI Manmohan Singh to the effect that memo was received from Civil Hospital, Dhuri that Jora Singh, Paramjit Singh, Bharpur Singh and Surinder Kaur daughter of Bharpur Singh were admitted in Civil Hospital, Dhuri in an injured condition. On this information, Manmohan Singh SI, Police Station, Dhuri sought permission of the doctor for recording the statements of the injured Bharpur Singh (PW-4), Paramjit Singh (PW-6) and Surinder Kaur (PW-7). The doctor declared them fit to make their statements. Jora Singh was, however, declared unfit to make his statement. Bharpur Singh (PW-4) got his above said statement (Ex.PO) recorded which was read over to him who after admitting the same to be correct signed the same in Punjabi. The medico legal reports were taken and the writing was sent to the police station through Constable Ramesh Kumar for registration of a case (FIR). After registration, its number was asked to be intimated. The MHC was directed to send the special reports to the Illaqa Magistrate and to the Senior Officers; besides, the control room was asked to be informed through wireless message. Manmohan Singh SI along with other police officials was busy with the investigation. On the statement that was received, FIR (Ex. PO/1) for the offences under Sections 307, 324, 323, 148 and 149 IPC was registered.
The investigations in the case were initially conducted by SI Manmohan Singh who later died. The proceedings recorded by him were proved on record by Inspector Joginder Singh (PW-8) who was posted as SHO Police Station Dhuri on 29.09.2001. He had seen SI Manmohan Singh signing and writing and identified his signatures and handwriting. He identified the signatures of SI Manmohan Singh on the statement (Ex.PO) of CRA No.735-DB of 2006 -6- Bharpur Singh (PW-1) and also (PW-4). He also proved the endorsement Ex.PO/1 made by SI Manmohan Singh on it. On the basis of the statement (Ex.PO), FIR (Ex.PO/1) was recorded by SI Vir Singh. Requests dated 29.09.2001 (Ex.PN/1) were made by SI Manmohan Singh regarding taking opinion of the doctor as to whether Jora Singh was fit to make a statement or not. The doctor initially vides opinion (Ex.PN) stated that he was unfit to make a statement and vide endorsement (Ex.PN/1) on 29.09.2001 made an endorsement that Jora Singh had been referred to Rajendra Hospital, Patiala. SI Manmohan Singh also made a request (Ex.PK/1) as to whether Surinder Kaur (PW-7) daughter of Bharpur Singh (PW-4) was fit to make a statement. The doctor gave opinion (Ex.PK) that she was fit to make a statement. SI Manmohan Singh had also made a request (Ex.PL/1) about the fitness of Bharpur Singh (PW-4) and the doctor in his opinion (Ex.PL) opined that he was fit to make a statement. SI Manmohan Singh also made a request (Ex.PN) as to whether Paramjit Singh was fit to make a statement or not. The doctor vides endorsement Ex.PN/1 stated that he was fit to make a statement. Manmohan Singh SI vide recovery memo Ex.PQ took in possession the blood stained clothes of Surinder Kaur injured; besides, SI Manmohan Singh vide recovery memo (Ex.PR) collected the blood stained clothes of Bharpur Singh injured. Thereafter, vide recovery memo (Ex.PS) he collected the blood stained clothes of Paramjit Singh injured. Blood stained earth was lifted vide recovery memo (Ex.PT) by SI Manmohan Singh. Inquest proceedings (Ex.PB) were carried out by SI Manmohan Singh. The belongings of the deceased after conducting the postmortem examination were collected vide memo (Ex.PU) on 30.09.2001 by SI Manmohan Singh. A rough site plan (Ex.PV) was prepared by SI Manmohan Singh of the place of occurrence on CRA No.735-DB of 2006 -7- 29.09.2001.
On 01.10.2001, investigation of the case was taken over by Inspector Joginder Singh, Police Station Dhuri (PW-8). On 03.10.2001, Jagdev Singh (appellant No.1) and Ajaib Singh (who has since undergone his sentence) were arrested. A 'gandasi' (Ex.P-7) was got recovered from Jagdev Singh (appellant No.1) and its sketch (Ex.PX) was prepared. The same was taken in possession after making a parcel of it vide memo (Ex.PY). The sketch and recovery memo were attested by Constable Harjinder Singh and Constable Nirmal Singh. The parcel was sealed by Joginder Singh SI/SHO (PW-8) with his seal bearing impression 'JS'. 'Soti' (Ex.P-8) was recovered from Ajaib Singh which was taken in possession vide memo (Ex.PZ). It was attested by the aforesaid two witnesses. Separate memos (Ex.PAA) and (Ex.PBB) of arrests of Jagdev Singh (appellant No.1) and Ajaib Singh were prepared which were thumb marked by them and attested by the witnesses. Personal search memos (Ex.PCC) and (Ex.PDD) respectively of Jagdev Singh (appellant No.1) and Ajaib Singh were also prepared which were thumb marked by them and attested by the witnesses. Thereafter on 04.10.2001, Pritam Singh (appellant No.2) was arrested vide memo (Ex.PEE) which was signed by him and attested by the witnesses. His personal search memo (Ex.PFF) was prepared. On 05.10.2001, Joginder Singh SI/SHO (PW-
8) arrested Tavinder Singh alias Jang Singh, Baljinder Singh (appellant No.3) and Ranjit Singh (appellant No.4). Personal search memo (Ex.PGG) of Tavinder Singh alias Jang Singh was prepared which was signed by him and attested by witnesses. A 'Soti' (Ex.P-9) was recovered from him and taken in possession vide memo (Ex.PHH) which was attested by the said PWs. Personal search memo (Ex.PJJ) of Baljinder Singh (appellant No.3) was CRA No.735-DB of 2006 -8- prepared which was signed by him and attested by said PWs Constable Nirmal Singh and Constable Harjinder Singh. Memo of arrest (Ex.PKK) of Baljinder Singh (appellant No.3) and Ranjit Singh (appellant No.4) were prepared which were signed by them and attested by Nirmal Singh and Karnail Singh witnesses who were with the police party. On that very day, a 'gandasa' (Ex.P-10) was recovered from Baljinder Singh (appellant No.3) and its sketch (Ex.PLL) was prepared. It was attested by the PWs. It was taken in possession vide recovery memo (Ex.PMM) which was attested by the witnesses. Personal search memo (Ex.PNN) of Ranjit Singh (appellant No.4) was prepared which was signed by him and attested by the witnesses. A 'gandasa' (Ex.P-11) was recovered from him and its sketch (Ex.POO) was prepared. It was taken in possession vide memo (Ex.PPP) after making a parcel of it. On 07.10.2001, Pritam Singh (appellant No.2) made a disclosure statement that he had concealed a 'gandasa' in the chaff room on the rear side of his residential house of which he had exclusive knowledge and he could get the same recovered. His disclosure statement (Ex.PQQ) was recorded which was signed by him and attested by Constable Nirmal Singh and Gurbhajan Singh ASI. In pursuance of the said disclosure statement, Pritam Singh (appellant No.2) from the place disclosed by him got recovered a 'gandasa' (Ex.P-12). Its sketch (Ex.PRR) was prepared which was attested by the witnesses and it was taken in possession vide memo (Ex.PSS). Site plan (Ex.PTT) of the place of recovery was prepared. Joginder Singh SI/SHO (PW-8) recorded the statements of witnesses. Memo of arrest (Ex.PUU) of Tavinder Singh alias Jang Singh was earlier prepared on 05.10.2001. The case property was deposited on the dates of recovery with the MHC with their seals intact. Statements of other witnesses were recorded on different CRA No.735-DB of 2006 -9- dates. Scaled site plan was got prepared from Gurnam Singh Draftsman. On completion of investigation, police report (challan) was filed by Joginder Singh SI/SHO (PW-8) in the Court of the Sub-Divisional Judicial Magistrate, Dhuri on 15.12.2001. The learned Magistrate in view of the offence under Section 302 IPC being alleged, which was exclusively triable by the Court of Sessions on 15.12.2001 committed the case to the said Court for trial.
The learned Additional Sessions Judge, Sangrur to whom the case was assigned on 16.12.2002 charge sheeted the accused including the appellants that they on 28.09.2001 at 08.30 pm in the area of village Banbhauri were members of an unlawful assembly and in prosecution of the common object of such assembly committed the offence of rioting and at that time they all were armed with deadly weapons like 'gandasas' and 'sotis' and thereby they all committed an offence punishable under Section 148 IPC. Secondly, on the same date, time and place, Jagdev Singh (appellant No.1) in furtherance of the common object of the unlawful assembly which he formed with his other co-accused did intentionally commit murder of Jora Singh son of Sant Ram of Bhanbauri and thereby committed the offence punishable under Section 302 IPC whereas the remaining accused committed an offence under Section 302 read with Section 149 IPC. Thirdly on the same date, time and place, Bitta Singh @ Baljinder Singh (appellant No.3) and Kukna @ Ranjit Singh (appellant No.4) in furtherance of their common object of the unlawful assembly voluntarily caused hurt to Surinder Kaur (PW-7) and Bharpur Singh (PW-4) intentionally by means of 'gandasas' which is an instrument for cutting and thereby committed the offence punishable under Section 324 IPC whereas the remaining accused committed the offence punishable under Section 324 read with Section 149 IPC. Fourthly, on the CRA No.735-DB of 2006 -10- said date, time and place, Pritam Singh (appellant No.2) and Ajaib Singh (who has undergone his sentence) in furtherance of the common object of the aforesaid unlawful assembly voluntarily caused hurt to Paramjit Singh and Bharpur Singh (PW-4) respectively and thereby committed an offence punishable under Section 323 IPC whereas the remaining accused committed the offence punishable under Section 323 read with Section 149 IPC. Lastly, on the same date, time and place in furtherance of the common object of all which was to cause hurt to Jora Singh; Jarnail Singh accused voluntarily caused simple hurt with blunt weapon to Jora Singh, thereby Jarnail Singh committed an offence punishable under Section 323 IPC whereas the remaining accused committed the offence punishable under Section 323 read with Section 149 IPC. The offences for which the accused were charged were within the cognizance of the accused. It was directed that the accused be tried by the Court for the said offences. The contents of the charge were read over and explained to the accused in simple Punjabi. They pleaded not guilty to the charge and claimed trial.
The prosecution in order to establish its case examined as many as 11 witnesses; besides, tendered documents in evidence. The statements of the accused in terms of Section 313 of the Code of Criminal Proceudre (Cr.P.C-for short) were recorded. Jagdev Singh (appellant No.1) in his statement took the defence that he was innocent. It is stated by him that there was brick batting between the villagers and the complainant party. The complainant party received injuries due to the brick batting. Later on the complainant with the help of Gurmail Singh, who is the father of Paramjit Singh and is serving in the police department, falsely implicated them by falsely showing different accused with different weapons after due CRA No.735-DB of 2006 -11- consultation and deliberation. Pritam Singh (appellant No.2), Baljinder Singh (appellant No.3) and Ranjit Singh (appellant No.4) took the same defence as Jagdev Singh (appellant No.1).
In defence the accused examined Mukhtiar Singh Lecturer Government Senior Secondary School, Jitwal Kalan (DW-1), Harmesh Singh (DW-2), Charan Singh (DW-3), Nand Singh (DW-4), Teja Singh (DW-5), Raunak Singh, Lecturer Senior Secondary School, Banbhaura (DW-6), Ramji Dass (DW-7) and Harjit Singh SP (D) Moga (DW-8). They have all deposed primarily regarding the plea of alibi set up by Jarnail Singh of his not being present at the time of the incident that had occurred. Jarnail Singh in fact has been acquitted by the trial Court. Besides, Dr. Amit Moti MO Civil Hospital Ludhiana (DW-9) was examined and he proved the injuries that were suffered by Pritam Singh (appellant No.2).
The learned trial Court after considering the evidence and material on record has convicted and sentenced the accused including the appellants. Jagdev Singh (appellant No.1) has been convicted for the offence under Section 302 IPC. Pritam Singh (appellant No.2) and Ajaib Singh (who was undergone his sentence) were convicted for the offence under Section 323 IPC. Baljinder Singh and Ranjit Singh (appellants No.3 and 4) were convicted for the offence under Section 324 IPC. Jagdev Singh (appellant No.1) has been sentenced to undergo life imprisonment; besides, pay a fine of Rs.5000/- and in default thereof to undergo rigorous imprisonment for three months for the offence under Section 302 IPC. Baljinder Singh (appellant No.3) and Ranjit Singh (appellant No.4) have been sentenced to undergo rigorous imprisonment for two years for the offence under Section 324 IPC. Pritam Singh (appellant No.2) and Ajaib singh were sentenced to undergo CRA No.735-DB of 2006 -12- rigorous imprisonment for one year for the offence under Section 323 IPC. The said order of conviction and sentence is assailed by the appellants. Besides, by way of revision petition Surinder Kaur (PW-7) and Paramjit Singh (PW-6) (petitioners) seek setting aside the impugned judgment to the extent that Jang Singh and Jarnail Singh have been convicted by giving them the benefit of doubt and they be convicted for the offence under Section 302 read with Sections 148 and 149 IPC and sentenced accordingly; moreover sentence awarded to Pritam Singh and Ajaib Singh, it is prayed be enhanced to a higher sentence for the offence under Section 302 read with Sections 148 and 149 IPC and that the sentence of accused Baljinder Singh and Ranjit Singh be also enhanced by converting their offence to that under Section 302 read with Sections 148 and 149 IPC.
Shri Vivek Suri, Advocate appearing for the appellants after arguing for sometime submitted that he confines his submissions to the limited extent that the offence under Section 302 IPC is not made out as regards Jagdev Singh (appellant No.1) and he can at the most be said to be liable for the offence under Section 304 IPC. It is submitted that the learned trial Court has held that the offence under Section 149 IPC is not made out and there was no common intention on the part of the appellants to commit the murder of Jora Singh, Chowkidar. Besides, it is submitted that the incident had occurred at the house of the appellants; besides, the incident occurred in a sudden fight without any pre-meditation and the entire family members of the appellants have been implicated. It is further submitted that all the appellants are closely related. The medical evidence on record does not establish or show the case to be one under Section 302 IPC.
In response, learned State counsel has submitted that the learned CRA No.735-DB of 2006 -13- trial Court has passed a just and reasonable order and has rightly convicted Jagdev Singh (appellant No.1) for the offence under Section 302 IPC. The conviction and sentences imposed on appellants are just and reasonable. The same, it is submitted, are not liable to be modified in any manner.
We have given our thoughtful consideration to the contentions of the learned counsel appearing of the parties. The appellants indeed are closely related and most of the members of the family of the appellants have been involved in the case. This would be evident from the following pedigree table:-
Sucha Singh Jagdev Singh Ajaib Singh Lal Singh Pritam Singh (A-1) (Undergone his (A-2) Convicted u/s sentence) Convicted u/s 302 IPC Convicted u/s Jarnail 323 IPC 323 IPC Singh (Acquitted) Tavinder Singh Baljinder Singh Ranjit Singh alias Jang Singh (A-3) (A-4) (Acquitted) Convicted u/s Convicted u/s 324 IPC 324 IPC The above table shows that Jagdev Singh (appellant No.1) is the brother of Ajaib Singh and Pritam Singh; besides, Jarnail Singh is his brother's (Lal Singh's) son. Jagdev Singh has been convicted for the offence under Section 302 IPC. His brothers Pritam Singh (appellant No.2) and Ajaib Singh (who has undergone his sentence) have been convicted under Section 323 IPC; besides, his one son Tavinder Singh alias Jang Singh has been CRA No.735-DB of 2006 -14- acquitted while two of his sons namely Baljinder Singh (appellant No.3) and Ranjit Singh (appellant No.4) have been convicted for the offence under Section 324 IPC and the son of his brother Lal Singh namely Jarnail Singh has been acquitted. Therefore, indeed the entire family of the appellants has been implicated in the case.
The FIR in the case was registered on the statement of Bharpur Singh (PW-4). He initially appeared before the learned trial Court as PW-1. He in his initial deposition in Court recorded on 13.05.2002 when he appeared as PW-1 stated that Jora Singh (deceased), his younger brother was a Chowkidar of the village. Because of his functioning as a Chowkidar in the village, he used to depute residents of the village on night patrol. On 28.9.2001 Jora Singh (deceased), younger brother of Bharpur Singh, had gone to the house of Jagdev Singh (appellant No.1) for deputing him for night patrol duty in the village. When he (Jora Singh) reached near the house of Bhag Singh it was about 8.30 p.m. Bharpur Singh (PW1) was standing near the house of Piara Singh at that time and he saw that seven persons had come out of the house of Ajaib Singh (who has undergone his sentence). They were Jang Singh (since acquitted) son of Jagdev Singh (appellant No.1) armed with a 'soti'; Jagdev Singh (appellant No.1) armed with a 'gandasa', Pritam Singh (appellant No.2) armed with a 'gandasa', Bitta Singh (Baljinder Singh-appellant No.3) armed with a 'gandasa', Kukna (Ranjit Singh - appellant No.4) armed with a 'gandasa', Ajaib Singh armed with a 'soti' who were all present in Court and seventh Jarnail Singh (who was not sent up for trial but summoned in terms of Section 319 Cr.P.C. vide order dated 01.10.2002 and thereafter acquitted) armed with a 'soti'. Jang Singh (since acquitted) raised a 'lalkara' that brother of the complainant Bharpur Singh CRA No.735-DB of 2006 -15- (PW1) be taught a lesson for deputing them for 'Thikri Pehra' (night patrol). Paramjit Singh (PW-6), nephew of the complainant (Bharpur Singh) and Surinder Kaur (PW-7) daughter of the complainant also came at the spot. Jagdev Singh (appellant No.1) then inflicted 'gandasa' blow from the sharp side on the head of Jora Singh, brother of Bharpur Singh (PW-1) and another blow with 'gandasa' on the head from its blunt side. Jora Singh fell on the ground on receiving the injuries. While Jora Singh lay on the ground, Jarnail Singh (the seventh accused) inflicted injuries with 'soti' on the left hand and another blow on his right leg. Paramjit Singh, nephew of the complainant Bharpur Singh (PW-1) intervened to save Jora Singh and Pritam Singh (appellant No.2) inflicted a 'gandasa' blow from its blunt side on his (Paramjit Singh's) head. Surinder Kaur (PW-7), daughter of the complainant (PW-1) also intervened to save Paramjit Singh and Bitta Singh (Baljinder Singh - appellant No.3) inflicted a 'gandasa' blow from its sharp side on the right side of forehead near the eyebrow. Bharpur Singh (PW-1) then raised an alarm and also tried to intervene. Kukna (Ranjit Singh - appellant No.4) aimed a 'gandasa' blow on the head of Bharpur Singh (PW-1), complainant and he raised his left hand and the blow hit him on the left elbow from its sharp side. Ajaib Singh (who has undergone his sentence) inflicted a 'soti' blow on the head of Bharpur Singh (PW-1). They raised an alarm and many persons came there and the accused ran away with their respective weapons. The injuries were inflicted by the accused in order to kill them. They were empty handed and did not cause any injury on the person of the accused. Sher Singh, Lambardar arranged a vehicle and they were taken to hospital at Dhuri. They were admitted in the hospital and were medically treated. They had seen the accused from the electric light from bulbs installed outside the houses. The CRA No.735-DB of 2006 -16- 'Thanedar' came at the hospital and recorded statement (Ex.PA) of Bharpur Singh, complainant (PW-1) which was read over to him and explained to him who signed the same after admitting it to be correct. Jora Singh, brother of the complainant died on 29.9.2001 in the evening. At the said stage of recording the evidence, the learned Public Prosecutor moved an application under Section 319 CrPC for summoning Jarnail Singh as an additional accused in the case. Bharpur Singh as PW-1 was cross-examined by the other accused on 26.08.2002. Learned counsel for the accused stated that his cross-examination of Bharpur Singh (PW-1) be considered subject to result of decision of application under Section 319 Cr.P.C. The application under Section 319 Cr.P.C. was allowed by the learned trial Court vide order dated 01.10.2002 and the seventh accused namely Jarnail Singh was summoned. Bharpur Singh (PW-1) was then again examined as PW-4 on 18.08.2003 in which he stated that his younger brother Jora Singh was Chowkidar of village Banbohri. In those days, in accordance with the order of Deputy Commissioner he used to depute persons for performing 'Thikri Pehra' (night patrol). On 28.9.2001 Jora Singh had gone to the house of Jagdev Singh (appellant No.1) in connection with 'Thikri Pehra' (night patrol). Jora Singh was standing in front of the house of Jagdev Singh where Jang Singh (since acquitted) came out of the house and raised a 'lalkara' that he be taught a lesson for fixing wrong 'pehra' (watch duties). It is stated by Bharpur Singh (PW-4) that he was alone there and no other person was present there. At the said stage it was brought to the notice of the Court that the accused Jagdev Singh (appellant No.1), Ranjit Singh (appellant No.4) and Baljinder Singh (appellant No.3) had not been produced by the jail authorities. The examination of the witnesses (Bharpur Singh PW-4) was deferred till their CRA No.735-DB of 2006 -17- appearance. On further examination it is stated by Bharpur Singh (PW-4) that when Jang Singh (since acquitted) raised a 'lalkara', six persons came out of the house of Ajaib Singh (who has undergone his sentence). These were Jagdev Singh (appellant No.1), Ajaib Singh, Bitta Singh (Baljinder Singh - appellant No.3), Kukna (Ranjit Singh - appellant No.4), Jarnail Singh (since acquitted) and Pritam Singh (appellant No.2). All of them were then present in Court. According to Bharpur Singh (PW-4), Jagdev Singh (appellant No.1) inflicted a 'gandasa' blow from its sharp side on the head of Jora Singh and another blow was inflicted from its blunt side on the head of Jora Singh who fell down. While Jora Singh was lying on the ground Jarnail Singh (since acquitted) gave a 'soti' blow on his left hand and right leg. When Paramjit Singh (nephew of the complainant) tried to rescue Jora Singh, Pritam Singh (appellant No.2) inflicted a 'gandasa' blow from its blunt side on his head. Then Surinder Kaur (PW-7) (daughter of the complainant) came forward and Bitta Singh (Baljinder Singh - appellant No.3) inflicted a 'gandasa' blow from its sharp side on the right eye of his daughter. Bharpur Singh (PW-4) then raised an alarm to save them. Kukna (Ranjit Singh - appellant No.4) inflicted a 'gandasa' blow from its right side on his left elbow and Ajaib Singh (who has undergone his sentence) inflicted a 'soti' blow on his right hand. The accused then ran away with their weapons. Sher Singh, Lambardar got them admitted in the Civil Hospital, Dhuri. The doctor referred Jora Singh (deceased) to Rajendra Hospital, Patiala where he died on 29.9.2001. Statement (Ex.PO) of Bharpur Singh (PW-4) complainant was recorded by the police which he signed. Bharpur Singh (PW-4) was cross- examined. The cross-examination of Bharpur Singh (PW-6) was in fact conducted on 26.08.2002, when he appeared as PW-1. It is stated that the CRA No.735-DB of 2006 -18- house of accused of Jarnail Singh (since acquitted) is on Dhuri road. It is voluntarily stated that in fact he has two houses one is on the road as stated by him earlier and the other was near their house at a distance of about 30-35 yards from his house. The house of the accused which was on Dhuri road is at a distance of about 100 yards from the village. Jarnail Singh accused has a brother namely Jeeti. He was living in Jarnail Singh's house which was situated on Dhuri road. No cross-examination of Bharpur Singh (PW-4) was conducted on 18.08.2003. His cross-examination was deferred on the request of his learned counsel who it was stated was busy in Sessions Court. On 18.08.2003, the case was adjourned to 10.09.2003. Bharpur Singh (PW-4), Paramjit Singh and Surinder Kaur were present but counsel for the accused requested for an adjournment on the ground that they had to conduct another Sessions trial. PWs were bound down for 07.10.2003. On the said date, the term of appointment of learned Judge, Fast Track Court had expired and no Presiding Officer had joined. The case was, therefore, adjourned to 18.11.2003. Then it was adjourned from time to time as no Presiding Officer has joined. Thereafter the Presiding Officer was on leave on 09.12.2003, 24.12.2003, 09.02.2004 and 08.03.2004. The case was then received by transfer before another Sessions Judge on 17.05.2004 and thereafter examination of PWs were conducted. However, from the record it transpires that Bharpur Singh (PW-4) was not cross-examined thereafter and neither does the defence raises any plea regarding his not being subjected to cross- examination.
Surinder Kaur (PW-7), daughter of Bharpur Singh (PW-4) complainant was examined in chief on 17.05.2004. She stated that her father's younger brother (Chacha) Jora Singh was a 'Chowkidar'. Being a CRA No.735-DB of 2006 -19- 'Chowkidar' he used to depute people on 'Thikri Pehra' (night patrol). On 28.9.2001 Jora Singh returned after deputing Jagdev Singh-accused (appellant No.1) for 'Thikri Pehra' (night patrol). When he reached near the house of Bhag Singh; at that time her father Bharpur Singh (PW-4) was standing near the house of Piara Singh. It was about 8.30 p.m. Surinder Kaur (PW-7) along with her brother Paramjit Singh (PW-6) also came there. Then the accused Jagdev Singh (appellant No.1) armed with a 'gandasa', Pritam Singh (appellant No.2) armed with a 'gandasa', Kukna (Ranjit Singh- appellant No.4) armed with a 'gandasi', Bitta Singh (Baljinder Singh - appellant No.3) armed with a 'gandasa', Ajaib Singh (since acquitted) armed with a 'soti', Jarnail Singh (since acquitted) armed with a 'soti' and Jang Singh (since acquitted) armed with a 'soti' came there. Then Jang Singh raised a 'lalkara' asking her uncle Jora Singh that he was not deputing them for 'Thikri Pehra' (night patrol) properly and he be given a lesson for deputing them wrongly. Jang Singh (since acquitted) instigated his co- accused saying that; 'what were they now seeing'. Then Jagdev Singh (appellant No.1) inflicted a 'gandasa' blow on the head of Jora Singh from its sharp side and another blow from its reverse side on his head. Jora Singh fell down. While he lay on the ground, Jora Singh was given two 'soti' blows by Jarnail Singh hitting him on his left hand and right leg. Then Paramjit Singh (PW-6), her brother came forward to save Jora Singh. Pritam Singh (appellant No.2) inflicted a 'gandasa' blow from its reverse side hitting her brother Paramjit Singh (PW-6) on his head. Then she (PW-7) tried to save her brother Paramjit Singh (PW-6) on which Bitta (Baljinder Singh- appellant No.3) gave a 'gandasa' blow on her right eye. Then her father Bharpur Singh (PW-1) continuously raised an alarm of 'na maro, na maro' on CRA No.735-DB of 2006 -20- which Kukna (Ranjit Singh - appellant No.4) inflicted a 'gandasa' blow hitting her father Bharpur Singh (PW-1) on his left elbow and Ajaib Singh (undergone his sentence) gave a 'soti' blow hitting her father on his right hand. After they were inflicted with injuries, then the accused ran away along with their respective weapons. Sher Singh, Lambardar of their village took them to Civil Hospital, Dhuri and got them admitted there where they were medically treated. Her statement was recorded by the police. In the cross-examination on 07.07.2004 and then on 06.10.2004 she inter alia stated that except the 'Thikri Pehra' (night patrol) there was no dispute between the accused party and Jora Singh (deceased). The talk regarding 'Thikri Pehra' (night patrol) duties did not take place in her presence. It is also stated as correct that on the turning of the street, the house of Bhag Singh falls on the front side and then the house of Jagdev Singh (appellant No.1) on his right side. Her uncle Jora Singh (deceased) left the house about 10 minutes before the occurrence and the occurrence took place at around 8.30 p.m. The place of occurrence, it is stated, is in front of the house of Bhag Singh.
The prosecution also examined Paramjit Singh (PW-6) son of Bharpur Singh (PW-4) complainant who has deposed on the same lines as Bharpur Singh (PW-4) and Surinder Kaur (PW-7). His examination in chief was conducted on 17.05.2004 and then on 06.07.2004. On 06.07.2004 his cross-examination was also conducted. In cross it is inter alia stated by Paramjit Singh (PW-6) that when Pritam Singh (appellant No.2) caused injuries to him, he was in front of the house of Bhag Singh.
From the aforesaid depositions it is quite evident that the incident had occurred in front of the house of Bhag Singh and the house of Jagdev Singh (appellant No.1) is on the right side of the house of Bhag CRA No.735-DB of 2006 -21- Singh. Besides, Jora Singh (deceased) was going to the house of Jagdev Singh (appellant No.1). Moreover, there was no prior enmity between parties and there was only a dispute regarding fixing of night patrol duties by Jora Singh, Chowkidar (deceased).
Dr. Bhagwan Dass Mittal, Senior Medical Officer (PW-2) deposed that on 28.9.2001 he was working as Senior Medical Officer, Civil Hospital, Dhuri. On that day he medically examined Jora Singh, Chowkidar and he found the following injuries on his person:-
"1. Lacerated wound 8.5 cm x .5 cm x bone deep on the right side of the scalp 1 cm right to the midline, vertically placed, extending to the anterior hair line. Profuse fresh bleeding was present. X-ray was advised.
2. Incised wound 3.3 cm x 0.4 cm x bone deep on the right side of the scalp, 7 cm right to mid-line, 6 cm right to injury No.1, vertically placed, extending to anterior hair line. Fresh bleeding was present. X-ray was advised.
3. Multiple abrasions of different sizes, red in colour on the dorsum of right hand. Diffused swelling was present on the thumb. X-ray was advised.
4. Red abrasion 0.8 cm x 0.4 cm x bone deep on the shin of right lower leg 4 cm below knee joint.CRA No.735-DB of 2006 -22-
He was conscious. B.P. was 110/70
MM of HG, Pulse 76 P.M. Pupils were
normally reacting to light. Vomiting was
present. The patient was brought by Sher
Singh Lambardar."
Injuries No.1, 2 and 3 were kept under observation. It was opined that injury No.2 had been caused by a sharp edged weapon and injuries No.1, 3 and 4 with a blunt weapon.
Dr. D.S. Bhullar, SMO Department of Forensic Medicine, Govt. Medical College, Patiala (PW-1) on 30.09.2001 conducted the post-mortem examination on the dead body of Jora Singh (deceased) and he found the following injuries:-
"1. Stitched wound, 8.5 cm on right side of scalp, 1 cm from mid-line, going antero-
posteriorly from anterior hair-line.
2. Stitched wound 3.3 cm on right side of scalp, 7 cm from midline, going antero-
posteriorly from anterior hair line.
3. Multiple diffuse abrasion with brownish scab or (sic.-on) dorsum of left hand. Underneath bone of thumb showing fracture.
4. Abrasion 0.8 x 0.4 cm with brownish scab, on anterior aspect of upper middle part of right leg.
On dissection extra dural and subdural CRA No.735-DB of 2006 -23- haemorrhage with injuries to brain corresponding to injuries No.1 and 2 was present."
xxxxxxx "The cause of death was haemorrhage and shock due to injuries described which were ante-mortem and were sufficient to cause death in ordinary course of nature."
In the cross-examination it is stated by Dr. D. S. Bhullar (PW-1) that injury No.3 in the post-mortem report shows fracture of bone thumb of left hand and except this, he did not find any fracture in any of the injuries. It is further stated that the brain haemorrhage may be due to so many reasons and in this case the cause of death as per her opinion was brain haemorrhage and shock. It is also stated that injuries No.3 and 4 mentioned in the post- mortem report were not fatal injuries since these were on non-vital parts of the body. The possibility of injuries No.3 and 4 could not be ruled out if the same were caused by a friction or pressure between the skin and some rough object. The possibility of injuries No.3 and 4 having been caused by a fall on brick floor could not be ruled out. Injury No.3 it is stated can be a result of different blows and it cannot be caused with a single blow with 'lathi'. The possibility of injuries No.3 and 4 having been caused by a drag on floor cannot be ruled out. Besides, possibility of injuries No.3 and 4 being self- inflicted or self-suffered or having been caused with friendly hands could not be ruled out.
Therefore, the injuries on the person of Jora Singh (deceased) are CRA No.735-DB of 2006 -24- such that only injury No.1 has been opined to be with sharp-edged weapon. It is on the right side of scalp. But it is not a fractured wound and it has been specifically opined that there was fracture only in injury No.3 and there was no fracture in any of the other injuries. Besides, it is mentioned that brain- haemorrhage may be due to so many reasons and in this case cause of death was due to brain- haemorrhage and shock. Injuries No.3 and 4 are non-vital parts on the person of Jora Singh. The case admittedly is without any pre- meditation or common intention as the learned trial Court itself has held that the common intention in the case is not made out.
The State filed an application for grant of leave to appeal i.e. CRA No.54-MA of 2007 against the acquittal of Jang Singh, Tavinder Singh and Jarnail Singh. This Court vide order dated 2.3.2007 dismissed the said application. Therefore, at present it is a case of sudden fight which had occurred at the heat of the moment when Jora Singh (deceased) was going to the house of Jagdev Singh (appellant No.1) for fixing duties for night patrol. There was no prior enmity between the parties. From the nature of injuries that have been inflicted it is quite apparent that there was no intention to cause the death of Jora Singh. Injury No.1 is inflicted from the sharp side of 'gandassa' while injury No.2 is inflicted with the blunt side and the gravity of the injuries also shows that there was no intention to cause death. Therefore, Exception (4) of Section 300 IPC would apply which reads as under:-
"Exception (4) - Culpable homicide is not murder if it is committed without pre-
meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or CRA No.735-DB of 2006 -25- acted in a cruel or unusual manner."
Explanation: - It is immaterial in such cases which party offers the provocation or commits the first assault.
In the circumstances it may be noticed that Jora Singh had gone to the house of Jagdev Singh (appellant No.1) and there a quarrel ensued between Jora Singh and the accused. It is in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acting in a cruel or unusual manner had committed the offence. The question as to which party offered the provocation or committed the first assault in terms of the Explanation to Exception 4 of Section 300 IPC is immaterial. Dr. D. S. Bhullar (PW-1) in respect of injuries No.3 and 4 has opined that possibility of injuries No.3 and 4 on the dead body of Jora Singh having been caused by a drag on floor could not be ruled out; besides, these being self inflicted or self suffered or having been caused with the friendly hand could not be ruled out. Therefore, the circumstances of the case indeed show that his case falls within the ambit of Section 304 IPC inasmuch as he committed culpable homicide not amounting to murder. It may also be noticed that Bharpur Singh (PW-4) who is the complainant was not fully cross-examined by the prosecution as due to expiry of the term of the Fast Track Court and thereafter officer not joining this lapse had occurred for which the accused is not to suffer although the same may not entirely be such an irregularity which can be said to have occasioned a failure of justice to the appellant but nevertheless it is a circumstance for considering the fact that the offence of murder punishable under Section 302 IPC is not made out. Besides, the nature of injuries suffered by Pritam Singh (appellant No.2), which have been CRA No.735-DB of 2006 -26- proved on record have not been explained by the prosecution. Dr. Amit Moti MO Civil Hospital Ludhiana (DW-9) was examined in defence and he proved the following injuries on the person of Pritam Singh (appellant No.2):-
1. Swelling, tenderness on right middle finger, advised X-ray.
2. 2 cm x 1 cm lacerated wound on right paretal region 3 cm above the ear pinna. Bleeding was present. X-ray was advised.
3. Bruise 4 x 1 cm over right thigh anterior aspect upper half.
4. Bruise 4 x 2 cm on posterior aspect of left scapula.
The prosecution was liable to explain the injuries that were suffered by Pritam Singh (appellant No.2). The normal rule followed by the Courts is that whenever an accused also sustains an injury in the same occurrence in which the complainant side suffered the injury, the prosecution is liable to explain the injuries upon the accused. But, it is not a rule without exception that if the prosecution fails to give explanation, the prosecution case must fail. However, it is prudent that the same are explained. In, Lakshmi Singh v. State of Bihar (1976) 4 SCC 394 it was held by the Supreme Court that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:
"(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;CRA No.735-DB of 2006 -27-
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."
In the present case, the prosecution has indeed failed to explain the injuries on the person of Pritam Singh (appellant No.2). The natures of injuries suffered by him are such that the prosecution should have given at least some explanation. This is another circumstance in the facts and circumstances of the case from which it can be said that the case is one which amounts to culpable homicide not amounting to murder although the manner in which the death was caused which had an element of intention to cause it. Therefore, the present case would be one which makes out an offence under Section 304 Part-I IPC on the part of Jagdev Singh (appellant No.1) and he is liable to be convicted for the said offence under Section 304 Part-I IPC. Therefore, we accept the contention of the learned counsel for the appellants that the offence as against Jagdev Singh (appellant No.1) is that of the offence under Section 304 Part-I IPC.
Insofar as the criminal revision petition (Criminal Revision No. 352 of 2007) is concerned a prayer has been made for setting aside the acquittal of Jang Singh and Jarnail Singh and for convicting them for the offence punishable under Section 302 read with Sections 148 and 149 IPC and sentencing them accordingly. In this respect it may be noticed that Section 401Cr.P.C. deals with the High Court's powers of revision and in CRA No.735-DB of 2006 -28- terms of Sub Section (3) thereof it is provided that nothing in this Section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. Therefore, the acquittal of Jang Singh and Jarnail Singh is not be converted into a conviction. The further prayer is that the sentences awarded to Pritam Singh and Ajaib Singh be enhanced to sentences under Section 302 read with Sections 148 and 149 IPC. This also is not liable to be done as they have been acquitted for the offence under Section 302 read with Sections 148 and 149 IPC and the said offences have not been held to be made out as against Jagdev Singh even, who is the principal accused. Similar would be the position as regards Baljinder Singh and Ranjit Singh. Therefore, the revision petition is devoid of merit and is liable to be dismissed.
Accordingly, the appeal is partly allowed qua Jagdev Singh (appellant No.1). His conviction and sentence for the offence under Section 302 IPC is set aside. He is convicted under Section 304 Part-I IPC and sentenced to the period already undergone. He shall also pay a fine of Rs.5000/- and in default of payment of fine, shall undergo rigorous imprisonment for three months. However, the appeal qua Pritam Singh, Baljinder Singh and Ranjit Singh (appellants No.2 to 4) is dismissed. Jagdev Singh (appellant No.1), if not wanted in any other case, be set a liberty forthwith.
The criminal revision petition (Criminal Revision No. 352 of 2007) is dismissed.
(S.S. SARON) JUDGE (PARAMJEET SINGH) JUDGE 23.1.2013 A.Kaundal