Punjab-Haryana High Court
Balvir Singh And Another vs State Of Punjab on 23 October, 2008
Author: Sabina
Bench: S.S.Saron, Sabina
Criminal Appeal No.284-DB of 2007 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Appeal No.284-DB of 2007
Date of decision:23.10.2008
Balvir Singh and another
......Appellants
Versus
State of Punjab
.......Respondent
CORAM: HON'BLE MR.JUSTICE S.S.SARON
HON'BLE MRS. JUSTICE SABINA
Present: Mr.T.S.Sangha, Sr.Advocate with
Mr.Parminder Singh, Advocate and
Mr.J.S.Lalli, Advocate,
for the appellants.
Mr.S.S.Gill, Addl.AG, Punjab.
****
JUDGMENT
SABINA, J.
Vide this judgment Criminal Appeal Nos.284-DB and 1956-SB of 2007 would be disposed of as both have arisen out of common judgment and order dated 28.2.2007.
Appellants Balvir Singh and Bhupinder Singh have filed Criminal Appeal No.284-DB of 2007 challenging their conviction and sentence under Section 302/323/34 IPC vide impugned judgment and order dated 28.2.2007 passed by Additional Sessions Judge, (Adhoc) Patiala.
State of Punjab has filed Criminal Appeal No.1956-SB of Criminal Appeal No.284-DB of 2007 2 2007 challenging the impugned judgment and order dated 28.2.2007 passed by Additional Sessions Judge, (Adhoc) Patiala, whereby accused Mangal Singh was acquitted of the charge framed against him.
Prosecution story in brief is that Kulwant Singh was a retired employee of Electricity Department. He has four sons and one daughter. His eldest son Bhupinder Singh was residing with his family with him. Bhupinder Singh used to put up a grocery rehri in Kissan Market. Harpreet Kaur @ Dimple, wife of Bhupinder Singh, was on visiting terms with Harpreet Kaur, wife of Balbir Singh in the neighbourhood. Balbir Singh and his wife had practiced black magic on Harpreet Kaur @ Dimple and had taken control of her. Due to this reason a conflict had started in the house of the complainant. At many occasions the quarrel was got compromised between Balbir Singh and the complainant party. However, Balbir Singh and his family did not stop from practicing black magic.
On 8.7.2003 at about 12.30 p.m. complainant was standing in front of his house. His son Bhupinder Singh was returning back to his house after doing domestic work and when he reached in front of the house of Balbir Singh, Balbir Singh and Bhupinder Singh, armed with kirch, and Mangal Singh, empty handed, came out of their house. Mangal Singh exhorted others that Bhupinder Singh, son of the complainant, be not let alive and a lesson be taught to him for levelling false allegations against them regarding practicing of black magic. Balbir Singh gave a blow with his kirch on the left side of chest of Bhupinder Singh. Mangal Singh Criminal Appeal No.284-DB of 2007 3 caught hold of Bhupinder Singh and assailant Bhupinder Singh gave a kirch blow on the left side of his flank. The complainant raised alarm which attracted his sons Pritam Singh and Joginder Singh to the spot. The complainant party also suffered injuries when they tried to rescue Bhupinder Singh. Thereafter, the assailants fled away from the spot with their respective weapons. Injured were got admitted in Rajindra Hospital, Patiala for treatment where Bhupinder Singh succumbed to his injuries.
On the basis of the statement of the complainant formal FIR No.174 dated 8.7.2003 was registered by the police of police Station Civil Lines, Patiala.
SI Bimal Kumar, Police Post Tripuri, prepared the inquest report with regard to dead body of Bhupinder Singh and the dead body was sent for postmortem examination. After visiting the spot he prepared the rough site plan of the place of occurrence and lifted blood stained earth from the spot.
Dr.Harpal Singh medico legally examined Pritam Singh on 8.7.2003 and found following injuries on his person:-
1. Lacerated wound 2.8cm x 2.3cm (probing not done) with overlying skin lifted from most of the wounds but one part remained attached to skin, on the middle of anterior aspect of chest 2 cm. Lateral to the left side of manubrium and 12 cm medial to the left nipple. Fresh bleeding present. Advised X-ray and under observation.
2. Red contusion 3 x 2.5 cm on the antero lateral aspect of right knee joint. Advised X-ray. Criminal Appeal No.284-DB of 2007 4
In his opinion the kind of weapon used was blunt for both the injuries.
On 9.7.2003, Dr. D.S.Bhullar conducted the postmortem examination on the dead body of Bhupinder Singh and found following injuries on his person:-
1. Stab wound 2.5 cm x 0.5-1 cm sharp margins, elliptical on left side of chest at level and 5 cm from left nipple.
On dissection, the wound entered chest cavity and corresponding part of heart. Chest cavity was full of fluid blood.
2. Stab wound 3 cm x 0.5-2 cm elliptical with sharp margins was present on left posterior axillary line and 3 cm below level of umbilicus. It was bone deep.
In his opinion the cause of death was due to shock and haemorrhage from injuries which were ante mortem in nature and were sufficient to cause death in the ordinary course of nature. Probable duration between injuries and death was immediate and between death and postmortem examination was 12 to 24 hours.
On 17.7.2003 accused were arrested. On 18.7.2003 during interrogation accused Balbir Singh suffered a disclosure statement and on the basis of the same he got recovered a kirch from the disclosed place, and it was taken in possession. On the same day accused Bhupinder Singh during interrogation suffered a disclosure statement and on the basis of the same he got recovered a kirch from the disclosed place, and the same was taken in possession.
Criminal Appeal No.284-DB of 2007 5
After completion of investigation and necessary formalities accused were sent up for trial. Charge against the accused was framed under Section 302/323/34 IPC on 28.10.2003 to which they did not plead guilty and claimed trial.
Prosecution in order to prove its case at the trial examined nine witnesses. After close of prosecution evidence accused, when examined under Section 313 Cr.P.C. prayed that they were innocent and had been falsely involved in this case due to property. The accused examined Karanbir Singh (DW-1) to prove the plea of alibi taken by accused Mangal Singh Learned trial Judge believed the prosecution version so far as accused Balbir Singh and Bhupinder Singh are concerned and convicted them under Section 302 IPC and sentenced them to undergo imprisonment for life and a fine of Rs.5,000/- each. They were also convicted under Section 323 IPC and were sentenced to undergo rigorous imprisonment for one year and a fine of Rs.500/- each. Accused Mangal Singh was, however, acquitted of the charge framed against him. Hence, the present two appeals.
In appeal, It has been argued that the alleged eye witnesses were not present at the spot and had been introduced at a later stage. The presence of the eye witnesses was also doubtful as they had not signed the inquest proceedings. The Investigating Officer had seen the dead body before he recorded the statements of complainant party and had, thus, recorded their statements in terms of the injuries found on the person of the deceased. Pritam Singh (PW-4) had also been introduced at a later stage after due Criminal Appeal No.284-DB of 2007 6 consultations. The said injured witness did not get himself admitted in the hospital immediately and was rather examined at 3.55 p.m. by the doctor. Accused had no intention or motive to commit the murder of deceased. The possibility that the injured had suffered injuries with one weapon only could not be ruled out as had been opined by the doctor. Thus, only one person had inflicted injuries on the person of deceased and the appellants being brothers had been falsely involved in this case. So far as accused Mangal Singh is concerned, he was not present at the spot and was rather performing as a pathi (reciting Sri Guru Granth Sahib) in village Uppli near Bhunerheri on the alleged day of occurrence.
Learned State counsel, on the other hand, has argued that the eye witnesses had duly proved the prosecution case. Pritam Singh (PW-4) had suffered injuries in the occurrence and, as such, his presence at the spot could not be doubted. All the three brothers had come to the spot with intention to commit murder of deceased Bhupinder Singh and had succeeded in committing the alleged crime.
Present case rests on an eye witness account.
The parties are residing in the neighbourhood and their houses open in the same street. As such, there is no question of mistaken identity of the accused. Complainant was standing outside his house when the occurrence took place. Hence, the presence of the complainant at the spot is natural. When deceased Bhupinder Singh reached in front of the house of the accused, they came out of their house and attacked him. Appellants Balbir Singh and Criminal Appeal No.284-DB of 2007 7 Bhupinder Singh were armed with kirch and each one of them inflicted one injury on the person of the deceased. The said occurrence was duly witnessed by complainant Kulwant Singh. When he raised alarm his son Pritam Singh also rushed to the spot. The appellants gave handle blows of the kirch on his person and he also suffered two injuries. Since Pritam Singh (PW-4) had also suffered injuries in the occurrence, his presence at the spot cannot be doubted. Moreover, Kulwant Singh (PW-2) and Pritam Singh (PW-4) are father and brother of the deceased and had no reason to shield the real culprits and involve the accused falsely in this case. Apparently, deceased Bhupinder Singh was immediately rushed to the hospital. Pritam Singh (PW-4) had suffered simple injuries and due to shock of loss of his brother he must not have thought it important to immediately get himself admitted in the hospital for treatment. He stayed with the dead body in the hospital for some time and thereafter, he was got examined by the doctor at 3.55 p.m. There is no force in the argument raised by learned counsel for the appellants/accused that injuries had been suffered by the deceased with one weapon or had been inflicted by one person. Both the appellants Balbir Singh and Bhupinder Singh were armed with kirch and both of them inflicted one injury each on the person of the deceased. Since the injuries were inflicted by both of them with kirch, the doctor opined that the possibility of their having been caused with one weapon could not be ruled out. On the other hand, the eye witness account is quite trustworthy as per which both the appellants Bhupinder Singh and Balbir Singh had inflicted one injury Criminal Appeal No.284-DB of 2007 8 each on the person of the deceased with their respective weapons.
The presence of the complainant at the spot cannot be doubted. The said witness has withstood the test of lengthy cross- examination and his testimony with regard to the occurrence witnessed by him could not be shattered. Merely because he has not attested the inquest report does not lead to the inference that he was not present at the spot. As per this witness his sons Pritam Singh and Joginder Singh had reached the spot on hearing his alarm. Joginder Singh had attested the inquest report along with Devinder Singh. It is not necessary that every witness has to attest the inquest proceedings.
During investigation the appellants got recovered the weapon of offence on the basis of their disclosure statements. So far as accused Mangal Singh is concerned, he has been rightly acquitted by the trial Judge as the plea of alibi taken by him is duly corroborated by Karanbir Singh (DW-1). Moreover, no injury is attributed to the said accused and he was allegedly present at the spot empty handed. The possibility that he being brother of the other accused has been falsely involved in this case cannot be ruled out.
The next question which requires consideration is as to whether the accused had the intention to commit murder of deceased Bhupinder Singh. From the statements of the eye witnesses it cannot be said that accused had come to the spot with pre- meditation. The deceased was passing through the street and when he came in front of the house of the accused they came out of their house armed with kirch and inflicted one injury each on the person Criminal Appeal No.284-DB of 2007 9 of the deceased. In case they had the intention to commit murder of the deceased, they would have inflicted more injuries on his person with their respective weapons. From this it can be inferred that the appellants Balbir Singh and Bhupinder Singh had no intention of committing murder of the deceased but they had the knowledge that the injury, which they were inflicting on the person of the deceased, was likely to cause death of the deceased. Hence, the present case would fall with the purview of Section 304 (II) IPC and not under Section 302 IPC. Both Balbir Singh and Bhupinder Singh had also inflicted simple injuries on the person of Pritam Singh.
Accordingly, Criminal Appeal No. 1956-SB of 2007 filed by the State is dismissed, whereas, Criminal Appeal No.284-DB of 2007 filed by Balvir Singh and Bhupinder Singh is partly allowed and their conviction is converted from Section 302 IPC to Section 304 (II) IPC and their sentence is reduced to rigorous imprisonment for seven years. Sentence of fine imposed upon them is, however, maintained. Their conviction and sentence under Section 323 IPC is also maintained.
(SABINA) JUDGE (S.S.SARON) JUDGE October 23, 2008 anita