Punjab-Haryana High Court
Mohan Singh @ Mohna And Others vs State Of Punjab on 9 February, 2011
Author: Jora Singh
Bench: Jora Singh
CRA-S-477-SB of 1999 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-477-SB of 1999
Date of decision: 09.02.2011
Mohan Singh @ Mohna and others
........ Appellants
Versus
State of Punjab
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
PRESENT: Mr. Anmol Partap Singh Mann, Advocate,
for the appellants.
Mr. Rajinder Mathur, AAG, Punjab.
JORA SINGH, J.
Mohan Singh @ Mohna S/o Tilak Raj, Nirmala Kumari @ Nimmo wife of Jodginder Singh and Sheela W/o Tilak Raj, preferred this appeal to impugn the judgment of conviction and order of sentence dated 10.5.1999, rendered by the learned Additional Sessions Judge, Gurdaspur, in Sessions Case No. 72 of 1998, arising out of FIR No. 169 dated 25.5.1998, registered under Sections 304/34 IPC at Police Station Dina Nagar.
By the said judgment they were convicted under Section 304 Part II read with Section 34 of the Indian Penal Code and were sentenced as under:
CRA-S-477-SB of 1999 -2-
1. Mohan Singh under Section 304 Part-II IPC To undergo rigorous imprisonment for a period of seven years and to pay a fine of ` 1000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of six months.
2. Sheela under Section 304 Part II/34 IPC To undergo rigorous imprisonment for a period of five years and to pay a fine of ` 500/- and in default of payment of fine to further undergo rigorous imprisonment for a period of three months.
3. Nirmala Kumar @ Nimmi under Section 304 Part-
II/34 IPC To undergo rigorous imprisonment for a period of three years and to pay a fine of ` 500/- and in default of payment of fine to further undergo rigorous imprisonment for a period of three months.
Prosecution story, in brief, is that Joginder Singh- complainant is the brother of Rajwinder Singh (deceased). Joginder Singh was married with Nrimala Kumari @ Nimmi and she was a lady of strong head and used to pick up quarrels with her mother-in-law. Joginder Singh, was working as a labourer at Hoshiarpur along with his brother Gurnam Singh and they used to return to their village after every two weeks. On 24.5.1998, Joginder Singh, came back to his house and learnt that his wife had left his house after having some dispute with his mother. Joginder Singh had gone to his in-laws house at village Behrampur to bring back his wife. Nirmala Kumari @ Nimmi, was not CRA-S-477-SB of 1999 -3- agreeing to accompany him by saying that his brother levelled false allegations against her for bringing gold ornaments with her. On 25.5.1998 at about 2.30 p.m. Joginder Singh, was present in the house of his in-laws. His mother-in-law Sheela, wife Nirmala Kumari @ Nimmi and brother-in-law Mohan Singh, were also present in the house. In the meantime, Rajwinder Singh, along with his uncle Rattan Singh, came to the house of his in-laws. Rajwinder Singh, after entering the house, enquired from him (complainant) as to why he was sitting there. Joginder Singh, replied that he was persuading his wife to accompany him. After that Rajwinder Singh, told that in case Nirmala Kumari @ Nimmi, was not agreeing then he should collect gold ornaments and they should return to their village. When Rajwinder Singh, uttered these words then Sheela, Nirmala Kumari @ Nimmi and Mohan Singh, started abusing Rajwinder Singh and grappled with him. Nirmala Kumar @ Nimmi caught-hold Rajwinder Singh from his long hair. Mohan Singh and Sheela, gave fist and kick blows to him. Raula was raised. Joginder Singh, intervened and rescued his brother Rajwinder Singh, from the clutches of the accused. On receipt of kick and fist blows Rajwinder Singh, fell down and became unconscious. Rajwinder Singh, was being shifted to the hospital but on the way he had succumbed to his injuries. Complainant party became nervous. Dead body was brought to their village Dera Baba Nanak, where people of the 'Biradari' gathered and advised them to shift the dead body to Police Station Dina Nagar. Dead body of Rajwinder Singh, was brought to Police Station Dina Nagar where statement of Joginder Singh, Ex. PD was recorded by SI Harjinder Singh. After making endorsement statement was sent CRA-S-477-SB of 1999 -4- to the police station on the basis of which formal FIR was registered.
Inquest report Ex. PC, was prepared by SI Harjinder Singh. Dead body was sent to the hospital for conducting post mortem examination. After visiting the place of occurrence, rough site plan Ex. PG, was also prepared with its correct marginal notes. After post mortem examination dead body was handed over to the relations of the deceased for cremation. Clothes worn by the deceased were taken into police possession vide memo Ex. PE, attested by the witnesses. Accused were arrested on 27.5.1998. After completion of investigation, challan was presented in the Court.
Accused were charge-sheeted under Section 304 of the Indian Penal Code, to which they pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
PW-1 Dr. H.S. Dhillon, stated that on 26.5.1998, at 1.00 p.m. he had conducted post mortem examination on the dead body of Rajwinder Singh @ Raju and found following injuries on his person:
"1. An abrasion measuring 4 cm x 5 cm on right side of forehead with underneath haemotoma.
Dissection revealed fracture of right frontal bone with collection of blood in anterior cranial fossa. Frontal lobe right was contused. Rest of brain parenchyma was normal.
2. There was abrasion measuring 3 cm x 3.5 cm on right ankle joint with fracture of right malleolus.
CRA-S-477-SB of 1999 -5-
3. There was abrasion 2 x 2 cm on lateral aspect
of right elbow."
Cause of death was due to injury to vital organ i.e. brain which was sufficient to cause death in ordinary course of nature. Injury was ante mortem in nature.
PW-2 Joginder Singh, is the complainant and stated that he was married with Nirmala Kumari @ Nimmi. He further stated that his brother Rajwinder Singh (deceased) was Tailor Master. After that he failed to support the prosecution story and was declared hostile. He was cross-examined by the learned Public Prosecutor for the State.
PW-3 Rattan Singh, is the eye-witness. He has supported the prosecution story by saying the fist/kick blows were given by the appellants to Rajwinder Singh.
PW-4 HC Hem Raj, stated that he was deputed to get the post mortem examination conducted on the dead body of Rajwinder Singh.
PW-5 Jagir Singh, Draftsman, stated that he had prepared scaled site plan Ex. PF, with its correct marginal notes.
PW-6 Ram Kumar, stated that on 25.5.1998, he came to know about the death of Rajwinder Singh but he cannot tell who had murdered him. He was also declared hostile and was cross-examined by the learned Public Prosecutor for the State.
PW-7 SI Harjinder Singh, is the Investigating Officer. After close of the prosecution evidence, statements of accused under Section 313 Cr.P.C. were recorded. Accused denied all the allegations of the prosecution and pleaded to be innocent.
CRA-S-477-SB of 1999 -6- In defence, DW-1 Rajinder Singh, appeared that stated that his house is near the house of the appellants. On 24.5.1998, Joginder Pal son-in-law of the accused came to their house and on 25.5.1998, he had heard some raula from the house of the accused. Raju was raising alarm and he seems to be under the influence of liquor. Raju fell down and was shifted to the clinic of Dr. Ramesh Kumar. Raju started vomiting. Doctor reported that Raju has consumed some poisonous substance and he should be taken to his house. Raju was taken to Civil Hospital, Gurdaspur, in a tempo. When Raju was being shifted to Civil Hospital, Gurdaspur, then he received injuries in the tempo.
After hearing learned Additional Public Prosecutor for the State, learned defence counsel and from the perusal of evidence available on the file, appellants were convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellants, learned State counsel and carefully gone through the evidence available on the file.
Learned defence counsel for the appellants argued that Nirmala Kumari @ Nimmi, is the wife of Joginder Singh-complainant but Joginder Singh, did not support the prosecution story. Deceased was the real brother of Joginder Singh and according to the prosecution story appellants had given fist/kick blows to Rajwinder Singh. Appellants had no intention to murder him. When deceased requested Joginder Singh to collect gold ornaments from the appellants then there was some altercation. Appellants gave fist/kick blows. Appellants were not knowing that injuries being caused by them were likely to prove CRA-S-477-SB of 1999 -7- fatal. Appellants were convicted under Section 304 Part-II IPC. They were empty handed and in case allegations of the prosecution are proved then the appellants are liable for punishment under Section 325 IPC. Argued that appellants namely Mohan Singh has already undergone 4 months and 2 days, Sheela, has already undergone 3 months and 5 days whereas Nirmala Kumari @ Nimmi, has already undergone 1 month and 14 days out of the actual sentence. Appellants are the first offenders. Requested to take lenient view.
Learned State counsel argued that appellants gave fist/kick blows to the deceased. Three injuries were noticed on the person of deceased. Appellants were rightly convicted under Section 304 Part-II, IPC. No reason to disagree with the finding of the trial Court.
Admittedly, Joginder Singh-complainant is the real brother of the deceased. Nirmala Kumari @ Nimmi, is the wife of Joginder Singh. Occurrence was in the house of the appellants. Appellants gave fist/kick blows to the deceased. Rajwinder Singh, had succumbed to his injuries when he was being shifted to hospital. Defence version of the appellants is that case is false. Now the question is whether the prosecution story inspires confidence and the appellants were rightly convicted under Section 304 Part II, IPC.
Joginder Singh, is the real brother of the deceased. Occurrence was witnessed by Joginder Singh and his uncle Rattan Singh. Joginder Singh, while appearing in Court then did not support the prosecution story but admitted that case was registered as per his statement Ex. PD. Statement was read over and explained to him and he had thumb marked the same in token of its correctness. Appellants CRA-S-477-SB of 1999 -8- were present in their house, when deceased came. Deceased enquired from him (complainant) as to why he was sitting there. Dead body was brought from the house of in-laws of Joginder Singh to their village Dera Baba Nanak. At village Dera Baba Nanak, villagers had suggested them to shift the dead body to Police Station Dina Nagar. In cross- examination by the learned defence counsel for the appellants Joginder Singh stated that when deceased came to his in-laws house then at that time he was smelling of aluminium phosphite. Joginder Singh, was taken to the clinic of Dr. Ramesh Kumar and doctor told them that Rajwinder Singh, has consumed some poisonous substance and he be shifted to Civil Hospital, Gurdaspur. From the clinic of Dr. Ramesh Kumar, Rajwinder Singh, was brought to Gurdaspur where first aid was given to him. Death of his brother was at Oberoi Hospital, Gurdaspur. So one thing is clear from the statement of Joginder Singh, that from the house of his in-laws, dead body was brought to their village Dera Baba Nanak. According to the prosecution story, appellants had caused injuries to Rajwinder Singh, when he came to their house alongwith his uncle Rattan Singh. Rattan Singh, had also witnessed the occurrence. If appellants had not given injuries to Rajwinder Singh, then there was no idea to shift the dead body of Rajwinder Singh, from the house of the appellants to village Dera Baba Nanak. Joginder Singh, is the husband of Nirmala Kumari @ Nimmi-appellant. No doubt, he is the real brother of the deceased but deceased seems to be un-married. To save his wife, Joginder Singh, resiled from his statement. In case his statement was not correctly recorded then he should have sent complaints to different authorities. There was no idea to remain silent. Firstly, case CRA-S-477-SB of 1999 -9- was registered as per the statement of Joginder Singh, but after that Joginder Singh, resiled from his statement to save his wife. Joginder Singh, has half-heartedly supported the prosecution story but one thing is clear that fist/kick blows were given by the appellants to the deceased.
Rattan Singh, uncle of the deceased is the second eye- witness and has supported the prosecution story by saying that appellants gave fist/kick blows to the deceased.
According to post mortem report three injuries were noticed on the person of deceased. There was no external injury. Appellants were not armed. Appellants only gave fist/kick blows that means appellants had no intention to murder but to cause injuries to the deceased. There was a dispute regarding stay of Nirmala at her parental house and gold ornaments. According to the prosecution story, if Nirmala Kumari @ Nimmi was not agreeing to accompany the complainant then deceased requested his brother to collect gold ornaments and return to his house. When deceased uttered these words then appellants suddenly gave fist/kick blows. Appellants had no knowledge that injuries being caused by them were likely to prove fatal. Intention was to cause injuries and not to murder because deceased was instigating his brother i.e. the complainant to collect the gold ornaments if Nirmala Kumari @ Nimmi, was not agreeing to accompany him.
In 2005 (2) RCR (Criminal) 425, "Subhash Vs. State of Haryana" appellants were convicted under Sections 302/34 IPC. Appellants had a dispute with the deceased regarding election matter.
CRA-S-477-SB of 1999 -10- Appellants gave fist/kick blows. Some ribs were found broken. Then Court held that no case is made out to convict the appellant under Sections 302/34 IPC, infact they are liable for the punishment under Sections 325/34 IPC because all the appellants were empty handed and had no knowledge that injuries being caused were likely to prove fatal.
In 1986 Crl. L.J. 427, "K. Malles Rao Vs. The State (Orrisa)" appellant gave fist/kick blows on the person of his wife. No intention to cause death. Appellant was convicted under Section 325 IPC instead of Section 302 IPC.
In 2006 (3) RCR (Criminal) 317 "Narain Singh Vs. State of Punjab" appellant was convicted under Section 304 Part-II IPC. According to prosecution story, appellant gave fist blows to the deceased. According to medical report deceased died probably due to abdominal injuries. There was no external injury. Conviction under Section 304 Part II, IPC, was set aside. Appellant was convicted under Section 325 IPC.
In 1986 Crl. L.J. 438, "Thuru Turi Vs. State (Orissa)"
conviction was under Section 302 IPC, but the appellant had no intention of causing death by giving fist blows on the abdomen of his mother. Appellant had no knowledge that by giving fist blows he was likely to cause death to his mother. Appellant was convicted under Section 325 IPC instead of Section 302 IPC.
In the present case also appellants are related to the deceased. Deceased was the real brother of Joginder Singh- complainant. Nirmala Kumar @ Nimma-appellant No.2 is the wife of CRA-S-477-SB of 1999 -11- Joginder Singh. Mohan Singh-appellant No.1 is the brother-in-law and Sheela-appellant No. 3 is the mother-in-law of the complainant. Appellants are the labourers. They had given fist/kick blows to the deceased when there was a dispute regarding collection of gold ornaments when Nirmala Kumari @ Nimmi, refused to accompany the complainant. Three injuries were noticed on the person of deceased but there was no external injury. Occurrence was in the house of the appellants and if the appellants had the intention to murder then they could easily cause injuries with weapons. Instead of causing injuries with different weapons appellants gave fist/kick blows. That means appellants had no intention to murder infact they had intention to cause injuries because the deceased was instigating his brother (complainant) to collect gold ornaments and leave the house if Nirmala Kumar @ Nimmi was not agreeing to accompany him. Appellants had no knowledge that injuries being caused by them to the deceased were likely to prove fatal. When the appellants had no knowledge and intention to murder then I am of the opinion that appellants are liable for the punishment under Section 325 IPC instead of Section 304 Part-II, IPC. Conviction of the appellants modified from Section 304 Part-II IPC to Section 325 IPC.
Occurrence was on 25.05.1998, at that time Mohan Singh, was of young age, Sheela was 47 years old whereas Nirmala Kumari @ Nimmi, was 22 years old. Appellants are the first offenders and belong to a poor family. Mohan Singh has already undergone 4 months and 2 days, Sheela, has already undergone 3 months and 5 days whereas Nirmala Kumari @ Nimmi, has already undergone 1 month and 14 days CRA-S-477-SB of 1999 -12- out of the actual sentence. Ends of justice would be fully met if lenient view is taken otherwise appellants are to become hardcore criminals if again sent to jail to undergo imprisonment as ordered by the trial Court.
Keeping in view the facts and circumstances of the case, I take lenient view and direct the appellants to undergo imprisonment already undergone (in case of Mohan Singh 4 months and 2 days, in case of Sheela, 3 months and 5 days and in case of Nirmala Kumari @ Nimmi, 1 month and 14 days) under Sections 325/34 IPC. Fine maintained.
For the reasons recorded above, instant appeal is dismissed with modification on the point of conviction and sentence.
February 09, 2011 ( JORA SINGH ) rishu JUDGE