Punjab-Haryana High Court
Zora Singh And Others vs State Of Punjab on 6 August, 2010
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No. 927-SB of 1998
Date of decision: August 06, 2010
Zora Singh and others
.. Appellants
Vs.
State of Punjab
.. Respondent
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Narinder Singh, Advocate for the appellants.
Mr. C.S. Brar, DAG, Punjab for the respondent.
A.N. Jindal, J
All the eight accused-appellants (herein referred as 'the
accused') were prosecuted for the offence under Sections 304/326/325/148
read with Section 149 IPC. However, vide judgment dated 7.10.1998,
passed by the learned Additional Sessions Judge, Mansa, they were
convicted under Section 148, 304 Part-II read with Section 149 IPC and
sentenced to undergo rigorous imprisonment for one year each under
Section 148 IPC; rigorous imprisonment for seven years and to pay fine of
Rs.500/- each under Section 304 Part-II read with Section 149 IPC.
However, both the sentences were ordered to run concurrently.
To understand the relationship between the parties, the pedigree
table is reproduced as under :-
Sham Singh
!
-------------------------------------------------------------------------------------
! ! !
Zora Singh Joginder Singh Atma Singh
(Accused No.1) (Accused No.2.)
! !
--------------------------------------- ----------------------------------------------
! ! ! ! !
Makhan Nachhattar Darshan Amarjit Singh Leela Singh
Singh Singh Singh (Accused No.6) (Accused No.7)
(Acc.no.3) (Acc. No.4) (Acc. No.5)
Accused Bagwal Singh is the son in law of Zora Singh.
Criminal Appeal No. 927-SB of 1998 -2-*** The prosecution version as culled out from the statement of Nachhattar Singh complainant (herein referred as 'the complainant') is that on 3.7.1989, at about 5.30 a.m. he along with Nahar Singh (deceased) his brother and Kaur Singh his father were going from village Bhadra to village Gradi for boarding a bus for appearing in a criminal case in the court at Mansa. When they were 1- ½ acres short of canal minor, in the area of village Bhadra, the accused Zora Singh, Makhan Singh, Darshan Singh, Joginder Singh, Leela Singh, Amarjit Singh and Bhagwal Singh, armed with gandasas and Nachhattar Singh armed with kirpan waylaid them. Bhagwal Singh exhorted saying that they should not escape alive and should be taught a lesson for causing injuries to Zora Singh, his father in law. Upon this, Makhan Singh inflicted gandasa blows on the left and right leg of Nahar Singh, as a result of which he fell down. Bhagwal Singh inflicted gandasa blow on the left foot and Nachhattar Singh inflicted kirpan blow on the left arm of Nahar Singh. Joginder Singh inflicted a gandasa blow from the reverse side hitting below the knee on the right leg whereas Zora Singh and Leela Singh inflicted gandasa blows from the reverse side on the left ankle, right arm and the lip of Nahar Singh respectively. Amarjit Singh and Darshan Singh inflicted gandasa blows from the reverse side which hit the left leg and left arm of Nahar Singh respectively when he was lying down. Nachhattar Singh and Kaur Singh injured then raised hue and cry "killed, killed", whereupon the accused decamped from the spot with their respective weapons. After arranging tractor trolley, Nachhattar Singh took Nahar Singh to Civil Hospital, Sunam where he was medically examined at 7.30 a.m. The police came to the hospital at 12.30 p.m. and recorded aforesaid statement Ex.PJ of Nachhattar Singh, over which he made endorsement Ex.PJ/1, on the basis of which FIR Ex.PJ/2 was registered against the accused. Investigating Officer also took into possession the blood stained shirt worn by Nahar Singh which was converted into parcel and the same was into possession vide memo Ex.PK. The Investigating Officer went to the place of occurrence, prepared the rough site plan, lifted blood stained earth and converted it into parcel and took the same into possession vide memo Ex.PL.
Criminal Appeal No. 927-SB of 1998 -3-*** On 4.7.1989, Nahar Singh injured was referred to Rajindra Hospital, Patiala. Som Nath Investigating Officer tried his best to record his statement but his efforts remained futile due to his unfitness to make the statement.
Accused Nachhattar Singh, Darshan Singh, Makhan Singh, Bagwal Singh, Leela Singh and Amarjit Singh were arrested on 11.7.1989. On 13.7.1989 the accused Nachhattar Singh made a disclosure statement Ex.PM that he had kept concealed the kirpan in the box lying in his house about which only he knew and could get the same recovered and as such, pursuant to the said statement Ex.PM, he got recovered the said kirpan. Then the Investigating Officer got recovered the gandasa from the accused Makhan Singh pursuant to his disclosure statement Ex.PN. The accused Zora Singh and Joginder Singh were also arrested. Nahar Singh died on 30.7.1989. Investigating Officer went to the Rajindra Hospital, Patiala, prepared his inquest report Ex.PT and got the autopsy done upon his dead body. On completion of the investigation, challan against the accused was presented in the court.
Finding a prima facie case against the accused under Section 148, 302 read with Section 149 IPC, they were charged accordingly, to which they pleaded not guilty and claimed trial.
In order to substantiate the charges, the prosecution examined Dr. S.R. Goyal (PW1) who conducted x-ray examination of left elbow, forearm, upper half, left leg and left foot. He found fracture of left leg and left foot. He proved his x-ray report Ex.PA and x-ray films Ex.PA/1 and Ex.PA/3.
Dr. N.P. Singla (PW2) medico-legally examined Nahar Singh on 3.7.1989 at 7.30 a.m. Nachhattar Singh (PW3) is the complainant and Kaur Singh (PW4) is the eye witness. C. Ranjit Singh (PW5) has proved the memo Ex.PK, vide which the shirt was taken into possession. He has also proved disclosure memos Ex.PH and Ex.PN and recovery memos Ex.PM/1, Ex.PN/1 and Ex.PQ. SI Som Nath (PW6) is the Investigating Officer of this case. Dr. R.K. Mehta (PW7) had admitted Nahar Singh in Rajindra Hospital, Patiala on 4.7.1989. He has further stated that the injured Nahar Criminal Appeal No. 927-SB of 1998 -4- *** Singh died on 30.7.1989 at 3.42 a.m. Dr. Kanwarjit Singh Sandhu (PW8) conducted postmortem examination on the dead body of the deceased Nahar Singh and found the following injuries on his person :-
1. A scar 2.5 cms on the face on the lower lip. On dissection underneath bone had no cut. 10 cms scar was also present near above scar.
2. On removing POP (Plaster of Paris) there was wound 2 cms x 1 cm on the right upper arm, underneath bone was found fractured. Clotted blood was present.
3. Defused swelling on the left upper arm. On explosion, underneath bone was found fractured.
4. A scar 2 cms on back of left elbow.
5. P.O.P. was removed from the right lower leg. A diffused swelling was present and underneath bone was fractured. 1 cm scar was present on same leg.
6. A scar 4 cms on the right lower leg 6 cms above the medial malleous. On dissection, underneath bone was cut and fractured.
7. Swelling with scar 1 cm on left lower leg was observed after removing P.O.P. underneath bone was found fractured.
8. Swelling with scar on left ankle underneath bone fractured.
9. Scar 6 cms on left foot. On exploring underlying bone was found fractured.
10. A scar 2 cms on the left thigh.
When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. Accused Zora Singh and Joginder Singh took the plea of alibi stating that they had gone to Khanaura (in Haryana) on 2.7.1989 for attending the marriage of Harmail Singh on 3.7.1989 and Criminal Appeal No. 927-SB of 1998 -5- *** they had attended the marriage. They further explained that Leela Singh son of Karamjit Singh is a resident of Tolewal, District Sangrur, whereas, Amarjit Singh is a resident of Jakhepal, District Sangrur, therefore, they could not be present at the scene of occurrence. It was further stated that some un-known enemies caused injuries on the person of Nahar Singh but the accused were implicated in the false case.
The trial ended in conviction.
Arguments heard. Record perused.
The accused in this case are Zora Singh, his brother Joginder Singh, three sons namely Makhan Singh, Nachhattar Singh and Darshan Singh and two others i.e. Amarjit Singh and Leela Singh sons of Atma Singh brother of Zora Singh. All are residents of village Gurne Khurd. The other set of accused are Bhagwal Singh son in law of Zora Singh resident of Bhadra. The parties had previous enmity as the evidence reveals that Nachhattar Singh (PW3), Kaur Singh (PW4) and Nahar Singh deceased had caused injuries to Zora Singh when they had gone to see their son in law Bhagwal Singh, therefore, they were facing trial.
On the day of occurrence i.e. 3.7.1989, the complainant along with Nahar Singh and Kaur Singh were to go to the courts at Mansa in connection with the said case, therefore, the motive behind the occurrence stands duly established against Zora Singh. In order to substantiate that all the 8 accused had caused 10 injuries to Nahar Singh examined Dr. N.P. Singla (PW2) who medico-legally examined him on 3.7.1989 at 7.30 a.m. and observed as under :-
1. A lacerated wound 2.5 cms x 0.4 cm running obliquely above downwards and front left to right side on the lower lip involving both mucosal and contaneous surface of the lower lip. There was another lacerated wound 1 cm x 0.3 cm x muscle deep. Placed 1.5 cm towards right of the previous wound. Wound deposited around the wound.
2. A lacerated wound 2.5 cms x 0.5 cm bone deep with underlying bone fractured, present on the posterior aspect of the lower part of the right upper arm running above downwards 5 cms above the tip of right elbow. The Criminal Appeal No. 927-SB of 1998 -6- *** underlying bone was fractured as bony criptes was felt.
There was swelling redness and tenderness along with reddish contusion mark running above downwards 4 cms x 2 cms on the lateral aspect of the right elbow.
3. Two red coloured contusion of size 7 cms x 3 cms and 5 cms x 3 cms on the antero lateral aspect of the middle of the left upper arm with swelling and tenderness underlying bone was fracture.
4. Incised wound 2.5 cms x .2 cm x bone deep 7 cms antero lateral to the tip of left elbow present on the posterior aspect of the upper part of left fore arm wound was solid and clotted blood was present around the wound. X-ray was advised.
5. There was swelling redness and tenderness on the middle of the antero medial aspect of the right lower limb.
Underlying bone was fractured. There was also a punctured incised wound 1 cm x .2 cm x bone deep on the medial side of the right lower leg 19 cms below the knee joint with bleeding on exploration.
6. An incised wound 4 cms x .2 cm x bone cut and fractured on the medial side of the lower part of the right leg 6 cms above the medial malleous. The wound was solid with mud and clotted blood was present deposited around the wound. Active blood oozed out of the wound on exploration.
7. There was swelling, redness and tenderness on the anterior aspect of the middle of the left leg with a lacerated wound 1 cm x 0.4 cm x bone deep on the swelling 18 cms below the tibial tuberosity. X-ray was advised.
8. There was swelling redness and tenderness along with underlying bone fractured on the all around of the left ankle joint with a lacerated wound 1 cm x 0.5 cm x skin deep. The lateral aspect of ankle, 6 cms above the left Criminal Appeal No. 927-SB of 1998 -7- *** lateral malleous.
9. Incised wound 5.5 cms x 0.2 cm x bone deep over the medial slide of the middle of the left foot, 9 cms anterior to the medial malleous with soiling and clotted blood deposition. X-ray was advised.
10. 2 cms x .2 cm x skin deep incised wound on the lateral aspect of left lower thigh.
Dr. N.P. Singla (PW2) has further opined that injuries No.2, 3 5, 7, 8 and 9 were declared as grievous in nature, whereas, injuries No.1, 4 and 10 were declared as simple. Injury No.5 caused with sharp and blunt weapon, whereas, injuries No.1, 2, 3, 7 and 8 were caused by blunt weapon. Dr. Kanwarjit Singh Sandhu (PW8) had conducted postmortem examination and observed that injuries No.1, 4, 6 and 9 were superficial in nature and the death of Nahar Singh was due to shock and haemorrhage on account of all the injuries which were sufficient to cause death in the ordinary course of nature. However, during cross examination, he has stated as under :-
".... From my experience, I can say that such like orthopedic injuries rarely cause death. None of the injuries were on the vital part of the body. So these injuries are less cause death..."
Dr. R.K. Mehta, Medical Officer (PW7) has stated that the occurrence took place on 3.7.1989, whereas, Nahar Singh died on 30.7.1989 at 3.42 p.m. He had started developing symptoms of gangrene in the toe of the left foot on 16.7.1989, but he had not completely developed the gangrene. He again re-iterated that he recorded in his opinion Ex.PU/A that Nahar Singh had started developing gangrene on the left foot and on the toe of right foot. He had died due to cardio respiratory failure. He has no where stated that Nahar Singh died of the injuries. Dr. R.K. Mehta (PW7) as well as Dr. Kanwarjit Singh Sandhu (PW8) have also not stated that the injuries were the direct and approximate cause of his death. Admittedly, since the injuries were on the non vital parts of the body and he died after 27 days, the wounds were healed completely, therefore, the injuries cannot be said to be likely to cause death. Thus, the trial court fell in error while Criminal Appeal No. 927-SB of 1998 -8- *** holding that the injuries caused by the accused were covered by Section 304-II IPC.
As regards the occurrence, sufficient evidence has been led by the accused explaining their complicity in the commission of the crime. Both Pws Nachhattar Singh and Kaur Singh, who were having their date at the Courts at Mansa, which were supposed to open at 7.00 a.m., they were obviously to proceed to attend the case in connection with the injuries caused to Zora Singh. Both, Nachhattar Singh (PW3) and Kaur Singh (PW4) have consistently stated that the accused armed with gandasa and kirpan; waylaid Nahar Singh who was going ahead of them and all the accused caused injuries to him. Injury No.1 on the lip of the deceased caused by blunt weapon has been attributed to Leela Singh. The injury was found to be simple. The injuries No.2 and 8 on the upper arm and left ankle joint respectively, involving the fractures caused by blunt side of gandasa, have been attributed to Zora Singh. These two injuries were declared as grievous in nature and the injury No.10 on the left lower thigh, declared simple in nature, has been attributed to Makhan Singh. Injury No.9 on the left foot caused by gandasa, declared as grievous in nature, has been attributed to Bhagwal Singh. Injury No.4 caused on the left forearm by Kirpan, declared simple in nature, has been attributed to Nachhattar Singh. Injury No.3 on the middle of the left forearm, declared grievous in nature, caused by the reverse side of gandasa, has been attributed to Darshan Singh. Injury No.6 on the lower part of the right leg caused by the reverse side of gandasa declared grievous in nature has been attributed to Amarjit Singh. Injury No.7 on the middle of the left leg caused by reverse side of gandasa declared grievous in nature has been attributed to Joginder Singh. The ocular version of the aforesaid witnesses find corroboration from the medical evidence.
The delay in lodging the FIR is not of much significance, as after the occurrence at 5.30 a.m. on 7.9.1993, the injured were shifted to Civil Hospital, Sunam in tractor trolley which is at a distance of 22 kms from the place of occurrence. The injured were admitted in the hospital at 7.30 a.m. Due to the date in the case, Kaur Singh one of the eye witnesses went to the Judicial Courts at Mansa for seeking exemption of Nachhattar Criminal Appeal No. 927-SB of 1998 -9- *** Singh and Nahar Singh. After receiving information ASI Som Nath of Police Station Bhikhi arrived at the hospital at Sunam at 12.15 p.m. He recorded the statement of Nachhattar Singh and completed the same at 1.30 p.m. on the basis of which FIR was recorded at 3.45 p.m. on the same day. While delineating the scenario of the case, in all probabilities so much time could be consumed in setting the law in motion. Since Nahar Singh was not in a position to make the statement, therefore, the Investigating Officer without wasting time recorded the statement of Nachhattar Singh on the basis of which FIR was recorded. Since the deceased had suffered as many as 10 injuries, therefore, in view of the critical condition of the injured no question of consulting him arises. As such, the delay, if any, could be said to have been adequately explained.
As regards the plea of alibi set up by Zora Singh and Joginder Singh, the same does not find support from any cogent and convincing evidence. Bachan Singh (DW3) who was examined to prove the plea of alibi states that the marriage which was attended by these accused was attended on the basis of the invitation card, but, no such invitation card was produced in order to establish that the marriage was to be celebrated on or nearby the date of occurrence. He states that marriage party consisted of 40-50 persons and it had gone in 4-5 cars. Again, the testimony of this witness is not beyond blemish because 40-50 persons could not be accommodated in 4-5 cars. He has also stated that neither he nor his brother Harmail Singh are related to the accused. He has stated that mother of Zora Singh belongs to the same village in which he is married. It means that both these accused are not related to the witnesses i.e. Harmail Singh and his father Bachan Singh. As such, the question of sending them invitation for such a marriage does not arise at all.
As regards the plea of alibi set up by Leela Singh @ Karamjit Singh and Amarjit Singh, notwithstanding the fact that they hail from the different villages i.e. Jakhepal or Tolewal. However, keeping in view the fact that there was previous enmity between the accused and the deceased, the accused party in the present case was the complainant party in the case pending at Mansa, therefore, they could very well reach the place of occurrence covering the small distance of 11 kms as their villages are not Criminal Appeal No. 927-SB of 1998 -10- *** situated more than 11 kms away. They being the relatives of the accused party, in all probabilities, were supposed to accompany them to the court for evidence. As such, the plea of alibi set up by them appears to have been concocted in order to save themselves from the complicity in the crime.
Now coming to the offence, certainly, the occurrence had taken place on 3.7.1989 and Nahar Singh died on 30.7.1989. None of the injuries was caused with the sharp edged dangerous instrument. The only incised wound i.e. injuries No.1, 4, 6, 9 and 10 were simple in nature. Dr. Kanwarjit Singh Sandhu (PW8) has stated that out of 10 injuries, injuries No.1, 4, 6, 9 and 10 were superficial in nature. All the injuries being on the non-vital parts of the body, the accused, who caused the aforesaid injuries, could not be said to have requisite knowledge for causing injuries likely to cause death. As a matter of fact, none of the injuries was on the vital part of the body, therefore, inference with regard to necessary requisite knowledge of the injuries likely to cause death cannot be drawn. The deceased did not die as a result of the injuries as Dr. R.K. Mehta (PW7) during cross examination has stated that Nahar Singh died due to cardio respiratory failure. It would also be significant to mention here that except accused Zora Singh and Makhan Singh none of the accused appears to have repeated the injuries. As such, the trial court appears to have not taken the correct view of the matter while holding that the accused in furtherance of the common object caused injuries which in their knowledge were likely to cause death and convicted them under Sections 148, 304-II read with Section 149 IPC, whereas, the accused could be convicted only for the offences under Sections 324/325/323 read with Section 149 IPC.
Resultantly, this appeal is partly accepted and the accused are acquitted of the charges under Section 304-II IPC. Accused Zora Singh having caused injuries No.2 and 8 involving fractures is convicted under Section 325 IPC; Leela Singh having caused injury No.1 on the lips of the injured, which was found to be simple in nature is convicted under Section 323 IPC; Makhan Singh having caused injury No.5 which was declared grievous in nature and injury No.10 which was declared as simple, is convicted under Sections 325/323 IPC; Bhagwal Singh having caused injury No.9 on the left foot which was declared grievous in nature is Criminal Appeal No. 927-SB of 1998 -11- *** convicted under Section 325 IPC; Nachhattar Singh having caused injury No.4 on the upper part of the left forearm with sharp edged weapon, which was declared simple in nature, is convicted under Section 324 IPC; Darshan Singh having caused injury No.3 on the middle left forearm which was found to be grievous in nature, is convicted under Section 325 IPC; Amarjit Singh having caused injury No.6 on the lower part of the right leg, which was found to be grievous in nature, is convicted under Section 325 IPC; Joginder Singh having caused injury No.7 on the middle of the left leg with blunt side of gandasa, which was found to be grievous in nature, is convicted under Section 325 IPC. All the accused are also convicted for the offences under Sections 325/323 with the aid of Section 149 IPC. They are also convicted under Section 148 IPC.
As regards quantum of sentence, the trial court awarded sentence to all the accused to undergo rigorous imprisonment for one year under Section 148 IPC, therefore, this sentence awarded by the trial court shall remain intact. However, accused Zora Sigh, Joginder Singh, Makhan Singh, Darshan Singh, Bhagwal Singh and Amarjit Singh are sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.5000/- each for the offence under Section 325 IPC. They are further sentenced to undergo same sentence under Section 325 with the aid of Section 149 IPC as they shared the common object while causing injuries to Nahar Singh. Leela Singh is also sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.5000/- under Section 325 read with Section 149 IPC. All the accused are sentenced to undergo rigorous imprisonment for six months each under Section 323 read with Section 149 IPC. Nachhattar Singh is sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1000/- under Section 324 IPC. All the other accused are also convicted and sentenced to undergo same imprisonment under Section 324 read with Section 149 IPC.
August 06, 2010 (A.N. Jindal) deepak Judge