Punjab-Haryana High Court
Bahadur Singh And Another vs State Of Punjab on 17 March, 2010
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Jora Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. A. No. 398-DB of 2001
DATE OF DECISION : 17.03.2010
Bahadur Singh and another
.... APPELLANTS
Versus
State of Punjab
..... RESPONDENT
Crl. A. No. 496-DB of 2001
DATE OF DECISION : 17.03.2010
Jasbir Singh @ Jassi
.... APPELLANT
Versus
State of Punjab
..... RESPONDENT
Crl. Revn. No. 1911 of 2001
DATE OF DECISION : 17.03.2010
Hari Chand
.... PETITIONER
Versus
Jasbir Singh @ Jassi and others
..... RESPONDENTS
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JORA SINGH
Crl. A. No. 398-DB of 2001 -2-
Present: Mr. Malkeet Singh, Advocate,
for the appellants (in Crl. A. Nos. 398-DB & 496-DB of 2001)
for the respondents (in Crl. Revn. No. 1911 of 2001)
Ms. Gurveen H. Singh, Addl. A.G., Punjab.
Mr. A.P.S. Deol, Senior Advocate, with
Mr. Vishal Rattan, Advocate,
for the petitioner (in Crl. Revn. No. 1911 of 2001)
***
SATISH KUMAR MITTAL , J.
1. This judgment shall dispose of Criminal Appeals No. 398-DB (filed by accused Bahadur Singh and Paramjit Singh @ Pappa) and 496-DB of 2001 (filed by accused Jasbir Singh alias Jassi) as well as Criminal Revision No. 1911 of 2001 (filed by complainant Hari Chand for enhancement of sentence), against the judgment and order dated 23.7.2001, passed by the court of Sessions Judge, Patiala, whereby appellant Jasbir Singh alias Jassi has been convicted under Section 302 IPC, whereas appellants Bahadur Singh and Paramjit Singh alias Pappa have been convicted under Section 302 read with section 34 IPC. All the appellants have been sentenced to undergo rigorous imprisonment for life. Appellant Jasbir Singh alias Jassi has been sentenced to pay a fine of Rs. 10,000/- and in default, to undergo further rigorous imprisonment for a period of three months. However, appellants Bahadur Singh and Paramjit Singh alias Pappa have been sentenced to pay a fine of Rs. 5,000/- each and in default, to undergo further rigorous imprisonment for a period of two months.
2. Bahadur Singh and Jasbir Singh alias Jassi are real brothers and Crl. A. No. 398-DB of 2001 -3- Paramjit Singh alias Pappa is their cousion. Bhuro (deceased), aged about 27 years, was the wife of Hari Chand (complainant). The complainant and the accused were residing in village Dappar. The occurrence has taken place on the issue of tethering buffalo in the lane, existing in front of the houses of the parties.
3. In the present case, the FIR under Section 302/34 IPC was registered against the aforesaid three accused, for committing the murder of Bhuro. On the basis of the statement of her husband Hari Chand, which was made by him on 6.4.1998 at 1.30 PM to SI Chhubeg Singh (PW.9) near the turning of ITI, Lalru. In his statement (Ex.PA), Hari Chand stated that they were four brothers and two sisters, out of whom two brothers and two sisters were married. All the four brothers were residing together in village Dappar. He was employed in Punjab Roadways Depot, Chandigarh. On 6.4.1998, it being a public holiday, he was present in his house. At about 7.30 AM, he was sitting in his Chobara (a room on first floor). His wife Bhuro and brother's wife Babli were washing clothes inside the house. Then Jasbir Singh alias Jassi accused came in front of his house, where buffalo of the complainant were tied, as usual. Jasbir Singh alias Jassi started abusing the complainant side and was saying that in spite of repeated requests made by him, they (complainant side) did not stop to tether buffalo in the street. He untied the chain of their buffalo. On this, Bhuro went in the street and prevented Jasbir Singh alias Jassi from doing so, who gave a slap to her and said that he will finish all the disputes today for ever. After saying so, he Crl. A. No. 398-DB of 2001 -4- went back to his house and called his brother Bahadur Singh. They were saying that the complainant side should be taught a lesson. Then they entered in the house of the complainant. His wife Bhuro was coming towards him. Then Jasbir Singh alias Jassi, who was armed with Dang, and Bahadur Singh, who was armed with a cricket bat, came running behind his wife. In the meantime, on hearing the lalkara raised by Jasbir Singh alias Jassi, Paramjit Singh alias Pappa armed with Lathi also came there from his house. Then they surrounded Bhuro, who was about to board the stairs. When she tried to turn back due to fear, then Bahadur Singh exhorted Jasbir Singh alias Jassi to teach lesson to her, upon which Jasbir Singh gave Lathi blow on her head from the front side with both hands by full force. On receiving the said blow, Bhuro fell with face downwards. Then he (complainant Hari Chand) raised alarm saying "Maarta Maarta". After that, all the three accused started brick-bating to his wife and his brother's wife Babli. They continued raising lalkaras. In the meantime, his brother Dalbir Singh and Mahabir Singh came there on hearing the noise. Then all the three accused ran away with their respective weapons. After arranging the vehicle, the complainant took Bhuro to Civil Hospital, Lalru, where doctor declared her dead. After leaving his brother Dalbir Singh with the dead body, he along with Sarpanch Labh Singh was going to the Police Station, but the police met them near the turning of ITI, Lalru and recorded his statement.
4. It has come in evidence that the police got the information Crl. A. No. 398-DB of 2001 -5- about the dead body lying in the Hospital on 6.4.1998 at 10 AM. At that time, SI Chhubeg Singh was present in Patiala for official work. After receiving the information, he immediately proceeded for Civil Hospital, Lalru. In the way, when he was near the turning of ITI, Lalru, the complainant met him and got recorded the aforesaid statement at 1.30 PM, on the basis of which the formal FIR (Ex.PA/2) was registered against the accused at 2.35 PM. Special report was delivered to the Magistrate at 5 PM. After recording the statement and registration of the FIR, the police reached the Hospital, prepared the inquest report (Ex.PJ) and the dead body was sent for post mortem examination. Thereafter, the police visited the place of occurrence and prepared the rough site plan (Ex.PK). Blood stained earth was lifted from the spot. Some pieces of broken cemented ventilator, lying in the room, were also taken into possession vide recovery memo Ex.PC.
5. On 7.4.1998 at about 10.10 AM, Dr. Sham Singh, conducted autopsy of the deceased and he found the following one injury on his body:
A lacerated wound 6.5 cm x 2.0 cm bone deep present on left fronto parietal region of skull starting from hair line, 6 cm above the left eye brow extending upward and medially lower end of the wound was `Y' shape. Underlying bone was depressed. Bleeding from the nose was present.
On opening of the scalp, a large haematoma 8 cm x 5 cm was found on the fronto parietal region. It was found that there was fracture of left parietal bone extending to frontal bone and cribri-form plate. In the opinion of the Doctor, the cause of death was due to haemorrhage and shock as a result of Crl. A. No. 398-DB of 2001 -6- head injury i.e. fracture of frontal and parietal bone and haematoma, extra dural and intra-dural, which was sufficient to cause death in ordinary course of nature.
6. On 9.4.1998, all the three accused were arrested. On 13.4.1998, during interrogation, Jasbir Singh alias Jassi accused made disclosure statement (Ex.PO) to the effect that he had kept concealed the Lathi in the bushes near the bank of Charan Nadi of which only he had the knowledge and he could got the same recovered. Similarly, Bahadur Singh and Paramjit Singh alias Pappa accused also made separate disclosure statements (Ex.PP and Ex.PQ) regarding the concealing of cricket bat and Lathi, respectively. Thereafter, in pursuance of their respective disclosure statements, Jasbir Singh alias Jassi, Bahadur Singh and Paramjit Singh alias Pappa accused got recovered Lathi, cricket bat and Lathi, which were taken into possession vide recovery memos Ex.PR, Ex.PS and Ex.PT, respectively.
7. After completion of investigation, the challan was filed and charges under Sections 302/34 and 506 IPC were framed against the accused, to which they did not plead guilty and claimed trial.
8. In support of its case, the prosecution examined 10 witnesses, besides placing on record certain documents.
9. PW.1 C. Balbir Singh, who had accompanied SI Chhubeg Singh on 6.4.1998, has proved statement (Ex.PA) made by the complainant, on the basis of which formal FIR (Ex.PA/2) was registered. PW.2 C. Tarlok Singh proved recovery memo Ex.PB, vide which clothes worn by deceased Crl. A. No. 398-DB of 2001 -7- Bhuro i.e. salwar, kamij, four bangles green colour, four bangles of red colour and 8 silver bangles were taken into possession. PW.3 ASI Sadhu Ram is the witness to the recovery of some stones/brick bats and broken wire gauge of a ventilator/cemented Jali vide recovery memo Ex.PC and blood stained earth vide memo Ex.PD. PW.4 MHC Raghbir Singh and PW.5 C. Mohinder Ram are the formal witnesses, who tendered their affidavits Ex.PE and Ex.PF, respectively. PW.6 Dr. Sham Singh, Medical Officer, who conducted post-mortem examination on the dead body of Bhuro and proved the post mortem report Ex.PG.
10. PW.7 Hari Chand (complainant) and PW.8 Babli, the eye witnesses, have supported the prosecution version, though in the cross- examination it was admitted by them that prior to the day of occurrence, there was no dispute between the accused and the complainant party. It has also been admitted that the occurrence was over within 3-4 minutes. It has also been admitted that Jasbir Singh alias Jassi accused had given only one Dang blow and one or two slaps to Bhuro (deceased). However, all the accused threw brick bats, but the same did not hit any one of them and it only damaged cemented ventilator.
11. PW.9 SI Chhubeg Singh, the Investigating Officer, also supported the prosecution version and has also proved the arrest of the accused and recovery of two Dangs from the accused and cricket bat from the spot. In the cross-examination, he has stated that the house of Paramjit Singh accused is at a distance of one or two streets from the house of Bhuro. Crl. A. No. 398-DB of 2001 -8- He also admitted that there was only one wooden peg in the street near the house of Bhuro and the said street was 17/18 feet wide. He also stated that he does not know if the parties had quarreled earlier also over tethering of cattle. A suggestion was put to both the eye witnesses as well as the Investigating Officer that Bhuro received the fatal injury in a family dispute, which had taken place on 5.4.1998, due to which she has died and all the accused were falsely implicated. PW.10 Swaran Singh, Draftsman, proved the scaled map (Ex.PU).
12. In their statements under Section 313 Cr.P.C., all the accused denied the incriminating evidence appearing against them and took the plea that there was a family dispute between Hari Chand complainant and his brothers about the partition of their property. Hari Chand and his wife had refused to give share in the property to his younger brothers. On 5.4.1998, in the night, a quarrel had taken place between the family, in which Bhuro was given beating by younger brothers of Hari Chand and their wives. In that fight, Bhuro sustained head injury and being a neighbourer, Jasbir Singh alias Jassi went to Police Station Lalru in the morning of 6.4.1998 and informed the police that a quarrel was going on in the family of Hari Chand. In the meantime, Bahadur Singh and Paramjit Singh accused also reached police station and they were falsely implicated in the instant case, because the police was having enmity with them with regard to a criminal case got registered by Paramjit Singh accused against the police officials for committing the murder of his younger brother. In defence, the accused did Crl. A. No. 398-DB of 2001 -9- not lead any evidence.
13. After considering the evidence on record, the trial court convicted and sentenced all the three accused, as mentioned in earlier part of the judgment.
14. Learned counsel for the appellants argued that there was a considerable delay in lodging the FIR. The incident is alleged to have taken place on 6.4.1998 at 7.30 AM. The information about the death of Bhuro was sent by the hospital authorities to the police, but in spite of that, statement of Hari Chand was recorded at 1.30 PM and formal FIR was registered at 2.35 PM. The special report was delivered to the Ilaqa Magistrate at 5 PM. Therefore, there was a delay of about 7 hours in lodging the FIR against the accused. According to the learned counsel, the police who was inimical towards the accused, took the benefit of the said delay and registered the instant case by concocting a version in connivance with the complainant, and implicated three persons of a family. Learned counsel argued that the participation of the accused, particularly Bahadur Singh and Paramjit Singh, in the alleged occurrence, is highly doubtful. Even as per the prosecution version, both these accused did not cause any injury to any person. He further argued that the only role attributed to Bahadur Singh is that he raised lalkara and exhorted Jasbir Singh alias Jassi to teach lesson to Bhuro. So far as Paramjit Singh is concerned, he had come on the scene subsequently and according to the prosecution, he blocked the way of Bhuro and Jasbir Singh had caused injury to her. Though it has been alleged that Crl. A. No. 398-DB of 2001 -10- after giving Lathi blow to the deceased, all the accused remained present on the spot and threw brick bats towards the complainant and eye witness Babli, but it is admitted position that no injury was caused to any one of them or to any family member of the complainant. Learned counsel further argued that the alleged occurrence has taken place suddenly on a small issue of tethering buffalo and in that occurrence, only Jasbir Singh had given one Lathi blow to Bhuro, when she was fighting with him. According to the learned counsel, the alleged occurrence has taken place suddenly without any premeditation or without any common intention of the accused to cause death of Bhuro or to cause such bodily injury, which resulted into her death. Learned counsel argued that in the instant case, the prosecution has miserably failed to prove the common intention of all the accused to cause death of Bhuro or to cause any bodily injury to her, which could cause death. Bahadur Singh and Paramjit Singh accused did not cause any injury to the deceased or to any other person. They even did not attempt to give any injury to the deceased. In these circumstances, conviction of these two accused persons for the offence under Section 302 read with Section 34 IPC for causing the death of Bhuro is not sustainable at all. It has come in the evidence that the house of Paramjit Singh accused is situated at a distance in different Mohalla, but as per the prosecution version, he also came on the scene, on hearing the lalkara of Jasbir Singh, which was not possible. This fact also indicates that the accused have been falsely implicated by the complainant by taking the benefit of delay in lodging the FIR. Crl. A. No. 398-DB of 2001 -11-
15. Regarding Jasbir Singh, learned counsel argued that in a sudden fight on the issue of tethering cattle, in a heat of passion and without any premeditation, he gave a single Lathi blow on the head of the deceased, without any intention to kill her, therefore, his case squarely falls under Exception 4 of Section 300 IPC. Since the culpable homicide committed by him does not amount to murder, therefore, at the most, he is liable to be punished under Section 304 IPC. In this regard, learned counsel argued that undisputedly, prior to the day of occurrence, there was no dispute between the parties on any issue, including the issue of tethering cattle and there was no motive for the accused to cause death of Bhuro. Only one injury was given by Jasbir Singh, due to which Bhuro has died and only in the morning of the day of occurrence, when Jasbir Singh accused was objecting to the tethering of cattle in the street, the occurrence had taken place in a sudden quarrel on the said issue. Therefore, conviction of Jasbir Singh under Section 302 IPC is not sustainable and at the most, he could have been convicted and punished for the offence under Section 304 IPC.
16. On the other hand, learned counsel for the respondent-State argued that the prosecution has fully proved that all the three accused were having common intention to kill Bhuro and to cause such bodily injury, which was likely to cause her death in the ordinary course of nature. They actively participated in the occurrence. Even if there was no previous enmity between the parties, their conduct and action at the spot clearly indicates that all of them were having a common intention to cause death of Crl. A. No. 398-DB of 2001 -12- Bhuro, therefore, the trial court has rightly convicted Bahadur Singh and Paramjit Singh with the aid of Section 34 IPC. Learned counsel further argued that conviction of Jasbir Singh under Section 302 IPC is also fully justified, because his case does not fall under Exception 4 of Section 300 IPC. According to the learned counsel, all the ingredients of Exception 4 are not existing in the present case, therefore, Jasbir Singh cannot be given the benefit of Exception 4 of Section 300 IPC, particularly while causing a lathi blow with full force on the head of a female, who was empty hand, Jasbir Singh had taken undue advantage of the situation, therefore, there is no illegality or impropriety in the judgment of conviction passed by the trial court.
17. Learned counsel for the complainant, while arguing in Crl. Revn. No. 1911 of 2001, submits that the fine imposed by the trial court be enhanced.
18. In this case, on a small issue of tethering the buffalo in the street, death of a young woman, aged about 27 years, was caused by her neighbourer. As per the medical evidence, there was only one incised wound injury on the head of the deceased, due to which she has died. In the opinion of Dr. Sham Singh (PW.6), the cause of death was due to haemorrohage and shock as a result of head injury i.e. fracture of the frontal and parietal bone and haemotoma, extra dural and intra dural which was sufficient to cause death in the ordinary course of nature. According to complainant Hari Chand (PW.7) and Babli (PW.8), the eye witnesses of the Crl. A. No. 398-DB of 2001 -13- occurrence, the said injury was caused to Bhuro by Jasbir Singh with Dang. As per the version given by these two eye witnesses, on the day of occurrence, Jasbir Singh accused came in front of their house and saw the buffalo tied in the street in front of their house. He started abusing them in filthy language and also untied the chain of the buffalo from its peg. Then Bhuro, who was washing the clothes along with PW Babli in the house, came out in the lane/street and stopped Jasbir Singh from doing so. Then he slapped her on her face and remarked that he will stop daily bickering. While abusing the complainant party and so proclaiming loudly, he went back to his house and came back with his brother Bahadur Singh. They were armed with a Dang and a cricket bat. When Bhuro in order to save herself tried to go upstairs towards her husband (complainant), who was witnessing the whole occurrence from the Chobara, she was stopped by Paramjit Singh accused, who was armed with Dang and by that time had also come at the place of occurrence, on hearing the lalkara of Jasbir Singh. When Bhuro turned back, Bahadur Singh asked his brother Jasbir Singh not to wait and exhorted him to finish the job. Thereafter, Jasbir Singh gave Dang blow with full force with his both hands on the head of Bhuro, on which she collapsed.
19. From the aforesaid version, it is clear that only Jasbir Singh caused one injury with his Dang to Bhuro, which proved to be fatal and due to which she had died. As far as Bahadur Singh and Paramjit Singh are concerned, they did not cause any injury. Only lalkara has been attributed to Crl. A. No. 398-DB of 2001 -14- Bahadur Singh. Paramjit Singh is alleged to have stopped Bhuro, when she was going back to her home on seeing the angry mood of the other accused. Though both the witnesses have stated that after giving the fatal blow to the deceased, all the three accused remained on the spot for some time. It was also alleged that they threw the brick bats towards the complainant and his family members. After coming of Dalbir Singh and Mahabir Singh (who have not been examined by the prosecution), the accused ran away from the spot with their respective weapons. But it is admitted case of the prosecution that no injury was caused either to the complainant or to PW Babli or to any other family member of the complainant. It has also been admitted by both the eye witnesses that prior to the alleged occurrence, there was no altercation or dispute between the accused and the complainant party.
20. In view of the aforesaid facts, it has to be considered as to whether the version given by these two eye witnesses with regard to the occurrence is truthful and reliable. It is the contention of learned counsel for the appellants that by taking the benefit of delay in lodging the FIR, a false story has been concocted by the police in connivance with the complainant party, in which three members of the family have been falsely implicated. In order to ascertain the reliability and trustworthiness of the eye witnesses, the court is to adhere two principles; (i) whether in the circumstances of a case, it was possible for the eye witnesses to be present on the scene; and (ii) whether there was any thing improbable or unreliable in his testimony. As Crl. A. No. 398-DB of 2001 -15- far as the presence of both the eye witnesses at 7.30 AM in their house is concerned, the same cannot be doubted. Even no such suggestion has been put to them by the defence counsel. Regarding the improbability and unreliability in their version, there are certain factors, which create slight doubt with regard to presence of Paramjit Singh on the spot and the role attributed to Bahadur Singh. It has come in the statement of SI Chhubeg Singh (PW.9) that the house of Paramjit Singh is at the distance of one or two streets from the house of Bhuro. He is cousin of the other two accused, namely Jasbir Singh and Bahadur Singh and he was residing separately with the other accused. As per the version given by the eye witnesses, Paramjit Singh came on the scene at a later stage, on hearing the lalkara of Jasbir Singh accused. In our opinion, it is highly improbable that a person, who is residing at a distance in a separate house, will be attracted at the spot on hearing the lalkara. It is admitted case of the prosecution that Paramjit Singh did not cause any injury either to the deceased or to the complainant or the witnesses. He also did not raise any lalkara. In view of these facts, in our opinion, the presence and the role attributed to him is doubtful and the possibility of his false implication being a close relative of Jasbir Singh cannot be ruled out, therefore, he cannot be convicted with the aid of Section 34 IPC.
21. As per the prosecution version, Bahadur Singh came on the scene, when Jasbir Singh after abusing and giving slap to Bhuro went to his house and came back with his brother Bahadur Singh. They were armed with a Dang and a cricket bat. On seeing them, when Bhuro tried to save Crl. A. No. 398-DB of 2001 -16- herself by going upstairs towards her house, then Paramjit Singh stopped her. At that time, Bahadur Singh is alleged to have asked his brother Jasbir Singh not to wait and exhorted him to finish the job and thereafter, Jasbir Singh gave the fatal dang blow the deceased. Admittedly, this accused also did not cause any injury to the deceased nor he had attempted to cause any injury/hurt to the deceased, even though he was having cricket bat in his hand. If he would have any intention to kill the deceased, he could have easily given injuries from the cricket bat, which he was holding. The story given by these two eye witnesses with regard to the manner, in which the said accused had participated, also seems to be improbable and unreliable. Even otherwise, the prosecution has failed to prove that the said accused was having common intention with Jasbir Singh to kill the deceased. The trial court has convicted Bahadur Singh under Section 302 IPC, only with the aid of Section 34 IPC. In our opinion, in the facts and circumstances of the case, and in view of the evidence led by the prosecution, Bahadur Singh accused cannot be convicted for the offence of murder with the aid of Section 34 IPC. Section 34 IPC has been enacted on the principle of on the principle of joint liability in the commission of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature is the element of participation in action. In order to fulfill the requirement of Section 34, firstly, the person must be present on the scene of occurrence and secondly, it has to be established that there was prior consent or pre-arranged plan for committing the alleged offence. Crl. A. No. 398-DB of 2001 -17- Unless these two conditions are fulfilled, a person cannot be held guilty of an offence by the operation of Section 34 IPC. In order to bring home the charge of common intention, the prosecution has to establish by evidence whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence, for which they are charged with the aid of Section 34 IPC. The said planning or meeting of mind may be pre-arranged or on the spur of moment. But it must necessarily be before the commission of crime.
22. On examination of the evidence led by the prosecution and in the facts and circumstances of the case, we do not find that the prosecution has established the essential ingredients of meeting of mind of both the accused persons prior to committing the alleged offence. The existence of the common intention among these two participants to kill the deceased has not been established. It is an admitted case that prior to the occurrence, which had taken place in the early morning at 7.30 AM, there was no dispute between the complainant party and the accused party with regard to the street or tethering of cattle in the street. For the first time, the dispute arose on the day of occurrence, when on seeing a buffalo being tied in the street, Jasbir Singh started abusing to Bhuro and untied the buffalo from its peg and whn Bhuro objected to it, Jasbir Singh gave slap to her and thereafter, he went back to his house by saying that he will finish the matter for all the times to come. Immediately thereafter, he came with a Dang in his hand and his brother Bahadur Singh, having a cricket bat in his hand. Crl. A. No. 398-DB of 2001 -18- Thereafter, it was alleged that Bahadur Singh exhorted Jasbir Singh to finish the job, upon which Jasbir Singh gave single Dang blow to Bhuro. He did not give second blow to her. Even Bahadur Singh did not make any attempt to cause any injury to the deceased. It has come in the statements of both the eye witnesses that the whole occurrence was over within 3-4 minutes. In these facts and circumstances, it cannot be said that Bahadur Singh and Jasbir Singh have pre-arranged a plan to kill the deceased. It also cannot be said that on the spur of moment, a meeting of their mind had developed with a common intention to cause the death of Bhuro. In order to attract Section 34 IPC, it is essential that there exists a common intention animating the accused leading to the commission of a criminal act in furtherance of such intention. Therefore, in our opinion, Bahadur Singh cannot be convicted with the aid of Section 34 IPC. Since he did not cause any injury to any one, therefore, he is not liable for any offence.
23. Now the question remains for consideration is whether in the facts and circumstances of the case, appellant Jasbir Singh is liable to be convicted under Section 302 IPC or Section 304 IPC. Learned counsel for the appellant argued that Jasbir Singh was having no intention to cause death of Bhuro. His intention was only to cause simple hurt to her, when she was abusing him in spite of the fact that she had committed the wrong by tethering the cattle in the street. According to the learned counsel, in a spur of moment, without any premeditation, in a sudden fight and in the heat of passion, Jasbir Singh gave a Dang blow to Bhuro, due to which she has Crl. A. No. 398-DB of 2001 -19- died. He did not repeat the blow. This clearly indicates that his intention was not to kill her and the alleged occurrence has taken place in a sudden fight, without there being any premeditation or intention to cause her death. In these circumstances, learned counsel argued that Jasbir Singh had committed the culpable homicide, which does not amount to murder and for that, at the most, he can be punished under Section 304 Part I IPC.
24. After considering the evidence led by the prosecution and taking into consideration the facts and circumstances of the case, we do not find any force in this contention of learned counsel for the appellants. If we peruse the medical evidence i.e. the post mortem report (Ex.PG) and the statement of Dr. Sham Singh (PW.6), it reveals that the thrust of the Dang blow on the head of Bhuro was so forceful, that it resulted into fracture of her frontal and parietal bone and haemotoma, extra dural and intra dural, due to which she died immediately. In the opinion of the Doctor, the said injury was sufficient to cause death in the ordinary course of nature. Jasbir Singh while holding the Dang with his both the hands gave blow on the head of Bhuro, which is a vital part of the body, with full force, having intention and knowledge that such bodily injury may cause her death, particularly when she was unarmed and was going back to her house. If the act of a person, by which the death is caused, is done with intention that giving of bodily injury as offender knows that it is likely to cause death, or the bodily injury intended to be inflicted is sufficient to cause death in the ordinary course of nature, the said person is guilty of the offence of Crl. A. No. 398-DB of 2001 -20- committing murder. In the instant case, Jasbir Singh was not only having the intention to cause bodily injury to Bhuro, which was sufficient to cause her death in the ordinary course of nature, but he was having full knowledge that if he gives Dang blow with full force on the head of a woman, in all probabilities, the said injury will be likely to cause death in the ordinary course of nature. Therefore, in our opinion, the instant case squarely falls in clause thirdly or fourthly of Section 300 IPC.
25. During the course of arguments, learned counsel for the appellants argued that the case of appellant Jasbir Singh falls within Exception 4 of Section 300 IPC. We do not agree with this argument of the learned counsel. To attract Exception 4 of Section 300 IPC, the following four ingredients must be satisfied :-
(i) it was a sudden fight;
(ii) there was no premeditation;
(iii) the act was done in a heat of passion; and
(iv) the assailant had not taken any undue advantage or acted in a crule
manner.
26. It has been held by the Hon'ble Supreme Court in Bhangaru Venkata Rao v. State of Andhra Pradesh, 2009 (1) RCR (Criminal) 452 that in order to bring a case within Exception 4 of Section 300 IPC, all the aforesaid ingredients must be found. In the instant case, it cannot be said that the death was caused in a sudden fight. Actually, it is Jasbir Singh who on coming in front of the house of the complainant started abusing on Crl. A. No. 398-DB of 2001 -21- seeing the buffalo of the complainant party being tied in the street. When he untied the buffalo and Bhuro objected to it, he gave slap to her. Thereafter, he went to his house and came back with a Dang and gave the fatal blow to Bhuro. At that time, Bhuro was not fighting with him. She was simply standing and was trying to run back towards her house. Therefore, it cannot be said that Jasbir Singh gave fatal Dang blow to the deceased in a sudden fight in a heat of passion. Even though there was no premeditation, but the first and third ingredients of Exception 4 have not been fulfilled. In our opinion, the fourth ingredient is also not existing in the instant case. It has been proved that when Jasbir Singh gave Dang blow with his both hands with full force on the head of a woman, namely Bhuro, at that time, she was unarmed. She did not attempt to cause any injury to Jasbir Singh. She was going back to her house. In these circumstances, in our opinion, Jasbir Singh had certainly taken the undue advantage of the situation and caused a fatal blow on the head of the deceased by Dang with full force, which had resulted into fracture of her frontal and parietal bone and haemotoma, extra dural and intra dural, and her immediate death. In Ramkishan v. The State of Maharashtra, 2007 (1) RCR (Criminal) 614, it was held by the Hon'ble Supreme Court that if the accused used deadly weapons against the unarmed person and struck a blow on the head, it must be held that using the blow with the knowledge that it is likely to cause death, he had taken undue advantage. In the instant case, there was no grave provocation which instigated Jasbir Singh accused to give fatal blow. In Ramkishan's case Crl. A. No. 398-DB of 2001 -22- (supra), it has been categorically observed that for the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression `undue advantage' as used in the provision means `unfair advantage'. In this regard, the Supreme Court held as under :
Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan, 1993 (2) RCR (Crl.) 576 : (AIR 1993 SC 2426) it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that using the blows with the knowledge that they were likely to cause death, he had taken undue advantage.
Therefore, in our opinion, case of appellant Jasbir Singh does not fall within Exception 4 of Section 300 IPC and he has been rightly convicted and punished under Section 302 IPC.
27. So far as Criminal Revision No. 1911 of 2001, filed by Hari Chand complainant for enhancement of the fine imposed upon the appellants is concerned, we are of the opinion that in view of the findings recorded above that appellants Bahadur Singh and Paramjit Singh alias Pappa have been falsely implicated in this case, the question of Crl. A. No. 398-DB of 2001 -23- enhancement of fine upon them does not arise. Regarding the fine imposed upon appellant Jasbir Singh alias Jassi, keeping in view the facts and circumstances of the case, we are not inclined to enhance the fine, imposed upon him.
28. In view of the above, the impugned judgment and order qua Bahadur Singh and Paramjit Singh alias Pappa is set aside and Criminal Appeal No. 398-DB of 2001, filed by them, is allowed. However, the impugned judgment and order qua Jasbir Singh alias Jassi is upheld and Criminal Appeal No. 496-DB of 2001, filed by him, stands dismissed. We also do not find any merit in Criminal Revision No. 1911 of 2001, filed by complainant Hari Chand for enhancement of fine, and the same is also dismissed.
29. As appellant Jasbir Singh alias Jassi is on bail, his bail bonds stand cancelled and he is directed to surrender before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against him in accordance with law.
( SATISH KUMAR MITTAL )
JUDGE
March 17, 2010 ( JORA SINGH )
ndj JUDGE