Punjab-Haryana High Court
Sukhdev Singh And Others vs State Of Punjab on 21 February, 2011
Author: Hemant Gupta
Bench: Hemant Gupta
CRA No. 707-SB of 1997 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision: 21st January, 2011
(i) CRA No. 707-SB of 1997
Sukhdev Singh and others .....Appellants
vs.
State of Punjab .....Respondent
Present: - Mr. J. S. Toor, Advocate
for the appellants.
Mr. D. S. Brar, Dy. AG, Punjab.
(ii) CRA No. 775-SB of 1997
Ram Ji .......Appellant
vs.
State of Punjab ........Respondent
Present: - Mr. J.B.S. Gill, Advocate
for the appellant.
Mr. D. S. Brar, Dy. AG, Punjab.
(iii) CRA No. 101-SB of 1997
State of Punjab ........Appellant
vs.
Sukhdev Singh and others ........Respondents
Present: - Mr. D. S. Brar, Dy. AG, Punjab
for the appellant.
Mr. J.S. Toor, Advocate
for the respondents No. 1 to 4.
Mr. J.B.S. Gill, Advocate
for respondent No. 5.
CRA No. 707-SB of 1997 2
(iv.) C.R.R. No. 1228 of 1997
Darshan Lal ........petitioner
vs.
Sukhdev Singh and others ........Respondents
Present: - None for the petitioner
Mr. D. S. Brar, Dy. AG, Punjab
Mr. J.S. Toor, Advocate
for the respondents No. 1 to 4.
Mr. J.B.S. Gill, Advocate
for respondent No. 5.
CORAM: - HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE GURDEV SINGH
1. Whether the Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
HEMANT GUPTA, J.
This order shall dispose of Criminal Appeal No.707-SB of 1997 preferred by Sukhdev Singh, Sandeep Singh, Ramesh Singh sons of Ravi Singh and Lal Ji @ Tarlok Singh son of Inder Singh; Criminal Appeal No.757-SB of 1997 preferred by Ramji Son of Bahadar Singh against the judgment and order dated 13.8.1997 convicting the accused-appellants under Section 304 read with 149 IPC and sentencing them to undergo RI for seven years and to pay a fine of Rs.2000/- each; Criminal Appeal No.101- SB of 1998 preferred by the State against the judgment and order dated 13.8.1997 acquitting the accused for an offence under Section 302 of the Indian Penal Code (for short the 'Code'), thus challenging the conviction of CRA No. 707-SB of 1997 3 the accused recorded under Section 304 Part II of the Code and Criminal Revision No. 1228 of 1997 preferred by Darshan Lal-complainant for conviction of the accused for an offence under Sections 302, 452 and 149 of the Code.
The prosecution case was set in motion on the basis of the statement (Exh. PJ) of Darshan Lal son of Jagdish Mittar recorded by Ram Parkash, Inspector, Police Station, Mukerian at about 2.00 A.M on 22.7.1995. He stated therein that at about 9.00 P.M on 21.7.1995, his brother Som Raj, deceased has gone up-stairs of his house while the complainant-Darshan Lal was sitting in the compound of the house along with his mother-Asha Devi. At that time, accused-Sukhdev Singh armed with Ghotna; accused-Sandeep Singh armed with chain of the motor-cycle; accused, Ramesh Singh armed with an iron pipe along with Lali @ Tarlok Singh armed with Dang came from the roof dragging and beating Som Raj and alleging that Som Raj had thrown piece of stones in their house. The four accused gave severe beatings to Som Raj with their respective weapons. The mother of the complainant rushed towards her son but the accused-Sandeep Singh caught hold of her from her long hair and then pushed her away. The complainant-Darshan Lal also requested the accused not to beat his brother but he was threatened by the accused. On alarm being raised by the complainant and his mother, many people gathered there. Accused Sandeep Singh and Sukhdev Singh then caught hold of Som Raj from his arms and took him to the flour mill (Atta Chakki) of Tara Singh, Sarpanch of the village, while the other two accused accompanied him. The accused then tore off the cloths from the person of Som Raj. Som Raj in nude form rushed into the house of Bansi Lal, which was situated nearby, in CRA No. 707-SB of 1997 4 order to save himself. He bolted the door from inside the house but the accused started pushing the door, in order to break the door. One Nardeep Singh, Member Panchayat also came to the spot. Som Raj was persuaded by him to come out but again the aforesaid four accused caught hold of Som Raj and started giving beatings to him. Som Raj fell down on the ground. Accused Ramji, who was SPO, came to the spot and started giving kick blows with his shoes to Som Raj on his head, chest and his neck. He also pressed the neck of Som Raj with the full force of his body, as a result of which, Som Raj became unconscious. All the five accused lifted the Som Raj and threw him in front of the house of his mother in unconscious condition and fled away from the spot. The complainant along with his neighbour, Rattan Chand and PW Tikka Singh brought Som Raj to the Civil Hospital in Mukerian in a truck but Som Raj later succumbed to his injuries.
Som Raj was medico-legally examined by Dr. V. P.Singh at 11.15 P.M. on 21.7.1995 (Exh. PB) and the following injuries were found on his person: -
1. Reddish contusion 2.5 cm x 3 cm only on the left side of forehead 3 cm from the midline and 2 cm above the left eye brow, ill defined swelling measuring 6 cm x 5 cm around the contusion.
2. Reddish abrasion 1cm x ½ cm on the left side of face 1 cm below the left lower eye lid around abrasion there was reddish contusion measuring 5 cm x 4 cm.
3. Reddish abrasion 1.5 cm x ½ cm on the left side of middle of nose 2 cm below the root of the nose. Bleeding from both the nostrils were present.
4. Reddish contusion 18 cm x 5 cm on the posterior lateral aspect of right upper arm 9 cm below the right shoulder.CRA No. 707-SB of 1997 5
5. Reddish contusion 6 cm x 5 cm on posterior aspect of the right elbow joint.
6. Reddish contusion 6 cm x 3 cm on the medial and posterior aspect of the right fore-arm in its middle 1/3rd 9 cm above the wrist joint.
7. Reddish abrasion 25 cm x 1.2 cm on the dorsem of right hand over the base of index finger.
8. Reddish contusion 6 cm x 2 cm on the left side of the chest 2 cm below the left nipple.
9. Reddish contusion 18 cm x 5 cm on the anterior laternal aspect of left upper arm 5 cm below the tip of left shoulder.
10. Reddish abrasion 2.5 cm x 1.5 cm on the posterior aspect of left elbow joint.
11. Reddish contusion 7 cm x 2.5 cm on the posterior aspect of the left fore arm in its middle 1/3rd.
12. Multiple reddish contusion over the back of chest measuring 32cm x 27 cm.
13. Reddish abrasion 5 cm x 2 cm on the anterior aspect of right knee joint.
14. Reddish abrasion 7 cm x 2 cm on the anterior aspect of left knee joint. There was reddish contusion 8 cm x 2 cm above the abrasion.
15. Reddish abrasion 1cm x 3/4th cm on the dorsem of the left foot over the big toe.
All the injuries were said to be caused by blunt weapon. Som Raj succumbed to his injuries at about 12.30A.M on 22.7.1995. Dr. Jagdish Singh (PW-3) conducted the post-mortem of Som Raj at 3.00 P.M. on 22.7.1995 and found the following injuries on his person: -
1. A reddish contusion 2.4 x 3 cm over the left side of forehead Diffused swelling was present over the area of 6 x 5 cm around it. There was epidural and subdural haemotoma. Underlying bone was fractured. Blood was CRA No. 707-SB of 1997 6 present in the anterior cranial fossa, frontal bone and base of skull were fractured. Brain and membrance were lacerated underneath.
2. Abraded contusion 5 x 4 cm over the left side of fact 1 cm below the eye lid.
3. Reddish abrasion 1 cm x 5 cm over the left middle of nose Clotted blood was present in the left nostril.
4. Reddish contusion 18 x 5 cm over the back and outer side of right upper arm 9 cm below the shoulder.
5. Reddish contusion 6 x 5 cm over the back of right elbow joint.
6. Reddish contusion 6 x 5 cm over the back and inner side of middle of right fore-arm.
7. Reddish contusion 6 x 2 cm over the left side of chest 2 cm below the left nipple.
8. Reddish abrasion 2.5 cm x 1.2 cm over the back of right hand at the base of index finger.
9. Reddish contusion 18 cm x 5 cm over the left upper arm front and outer aspect 5 cm below the shoulder.
10. Abrasion 2.5 cm x 1.5 cm over the back of left elbow joint.
11. Contusion 7 cm x 2.5 cm on the back of left fore- arm in its middle.
12. Multiple reddish contusion over the whole of the back of chest wall.
13. Abrasion 5 cm x 2 cm on the front of right knee joint.
14. Reddish abrasion 7 cm x 2 cm over the front of right knee.
15. Abrasion 1 cm x 0.8 cm on the dorsem of left foot over big toe.CRA No. 707-SB of 1997 7
PW-1, Dr. Sharvinder Singh examined Asha Devi, wife of Jagdish Mitter and mother of the deceased on 22.7.1995 at 9.30.P.M and found the following injuries: -
1. A red contusion 10 cm x 6 cm over the anterior-
medial aspect of right thigh in its middle 1.3rd 10 cm above the right knee joint.
2. A red contusion 5cm x 3 cm over the anterior aspect of left thigh in its middle of 1/3rd.
3. A red abrasion 1cm x ½ cm over the tip of left ring finger.
The accused were arrested on 5.8.1995 and on the basis of the disclosure statement suffered by the said accused, the offending weapons were recovered in the presence of the witnesses. On completion of the investigations, report under Section 173 of the Code of Criminal Procedure was filed against all the five accused. The learned trial Court believed the testimony of the brother of the deceased-Darshan Lal (PW-5), the author of the FIR, statement of Asha Devi (PW-8). and the other witnesses in its entirety but returned a finding that the accused have caused injuries to Som Raj in furtherance of their common intention with the knowledge that they are likely to cause death but without any intention to cause death or to cause such bodily injuries as they are likely to cause death. The Court held to the following effect: -
(36) Now the last question which fell for determination is as to whether the accused committed an offence under Section 302 or under Section 304 of the Indian Penal Code. It is to be noticed that the accused Sukhdev Singh, Sandeep Singh, Ramesh Singh, Lalji and Ramji had caused fifteen injuries on the person of Som Raj, CRA No. 707-SB of 1997 8 deceased. Due to the injuries there was depressed fracture according to the observation of the doctor as underneath the site of injury as underlying brain matter and membrance were damaged. Death in this case was due to head injury and brain injury. The injuries were ante-mortem in nature and sufficient to cause death in ordinary course of nature. The above 15 injuries contributed to the death of the deceased. It is also pertinent to note that the weapons of offence with the accused were not dangerous weapons. Only plausible inference to be drawn is that the present accused caused injuries to Som Raj in furtherance of their common intention with the knowledge that they were likely to cause death but without any intention to cause death or to cause such bodily injuries as they are likely to cause death. Had the intention of accused been to cause the death of Som Raj, then they would have caused injuries to him on the vital parts of the body through sharp edged weapon. No injury is there on his vital parts of the body due to sharp weapon.
It is the said finding, which is disputed by the State in its appeal whereas in appeal filed by the accused, the prayer is for setting aside the judgment of conviction dated 13.8.1997 and sentence recoded by the learned trial Court, Hoshiarpur. It may be mentioned that learned trial Court has recorded the following findings: -
(20)........Assuming for the sake of argument that Som Raj was somewhat mentally deranged then, whether this fact gives any right to the accused-persons to eliminate him or to kill him by giving so much beatings. If any stone had been thrown by Som Raj a mentally deranged person to the roof of the house of the accused that would CRA No. 707-SB of 1997 9 not mean that law has given licence to the accused to kill him through beatings. We are living in a civilized society and this society, particularly in India does not confer any right upon any person to kill a person who is not a mentally sound person. Our society protects such like person. Mental Home has been prepared not only by the Government by some Philan-thropist to help such like not mentally sound persons. A suggestion was put that the deceased was a lunatic and was dangerous to village peace. This fact has not been established by the accused in defence. Had the deceased Som Raj been armed with deadly weapon being a lunatic then a defence would have been carved out to kill him but he was found to be empty handed at the alleged time of occurrence. Accused with a common intention of all gave him 15 injuries to this helpless mentally deranged person and even no passerby co-villagers took pity upon the deceased to save him from the clutches of the brutal persons like the accused. How such like accused need leniency from the Court.
(23).....The only fault of the deceased was that he was not mentally sound. For that accused are not authorized to do an act which would result in finishing the life of not mentally sound person. If Darshan Lal did not intervene effectively due to fear then no adverse inference can be drawn. The presence of Darshan Lal cannot be doubted on this account. No standard reaction can be expected from eye-witnesses.
With the assistance of learned counsel for the parties, we have examined the record and the arguments raised by learned counsel for both the parties. Mr. Toor and Mr. Gill, learned counsel for the accused- appellants have argued that the learned trial Court has erred in law in CRA No. 707-SB of 1997 10 believing the testimony of Darshan Lal. It is contended that from the evidence produced on record, Darshan Lal is not proved to be present at the spot as he has not made any attempt to save his brother or mother from the alleged assault. It has also been argued that the prosecution has failed to prove any specific injury on the person of the deceased-Som Raj by any of the accused. Therefore, the sentence, so imposed upon the appellants is not sustainable. It is contended that as per the prosecution case, Som Raj was lynched by a mob but the prosecution has not been able to prove the identity and the presence of the accused which alone can provide some semblance of involvement of the appellants in the death of Som Raj.
Lastly, it is argued that learned trial Court has exercised its discretion and have convicted the appellants for an offence under Section 304 Part II of the Code. Therefore in appeal, this Court will not interfere into the discretion so exercised by the learned trial Court so as to convict the appellants for an offence under Section 302 of the Code. The opinion of the learned trial Court holding the appellants guilty for an offence under Section 304 Part II of the Code is a possible finding. Therefore, the conviction of the appellants under Section 304 Part II does not warrant any interference in the appeal.
On the other hand, learned State Counsel has vehemently argued that the evidence on record leads to an inference that Som Raj was mentally deranged. Therefore, in view of cogent, reliable and trustworthy evidence, the appellants have made themselves liable for conviction under Section 302 of the Code. The prosecution has proved the charges against the accused beyond reasonable doubt.
CRA No. 707-SB of 1997 11
It is contended that the occurrence on the night of 21.7.1995 can be bifurcated into four different incidents: Firstly, the deceased Som Raj was given beatings by Sukhdev Singh, Sandeep Singh, Ramesh Singh son of Ravi Singh and Lal Ji @ Tarlok Singh son of Inder Singh at their houses and the house of the deceased, aggrieved against the action of the deceased- Som Raj in throwing stones; Secondly, the deceased Som Raj was given beatings at the flour mill (Atta Chakki) of Tara Singh, Sarpanch of the village; Thirdly, the deceased Som Raj who has hidden himself in the house of (PW-6) Bimla Devi wife of Aagya Ram son of Bansi Lal who was taken from the said house by (PW-4) Nardeep Singh and Fourthly, at the bus stand where Ram Ji employed as S.P.O. is stated to have given kick blows with his shoes to Som Raj in his head, on his chest and on his neck and also pressed the neck of Som Raj with full force of his body.
It is contended that 15 injuries were found in the medico-legal examination conducted by Dr. V.P.Singh (PW-2) at 11.15 P.M on the person of Som Raj. The nature of injuries caused, are by blunt weapons. It is deposed by Dr. V.P. Singh that some of injuries could be caused by dragging on the hard surface and some of them by hurling brick bats etc. He has further deposed that if a blow with Ghotna, a kitchen appliance (a piece of wood having a round shape) is given with force on the head of patient, it is likely to cause depressed fracture of the skull. Dr. Jagdish Singh (PW-3) has deposed that as per his opinion (Exh PH/1), the possibility of injuries on the person of Som Raj with blunt weapon like Ghotna and motor-cycle chain cannot be ruled out. In the cross-examination he has ruled out the possibility of injury No. 1 having been caused by the kick blows. CRA No. 707-SB of 1997 12
The genesis of the occurrence has been deposed by (PW-5) Darshan Lal brother of the deceased-Som Raj son of Jagdish Mitter supported by (PW-7) Asha Devi wife of Jagdish Mitter. These incidents of beatings are said to be proved by the prosecution by examining the (PW-5) Darshan Lal and (PW-7) Asha Devi. The detailed sequence of events have been enumerated by them and such sequence of events have been found reliable by the learned trial Court. Though, the learned counsel for the accused made strenuous efforts to persuade this Court to disbelieve the statements of the witnesses but having read the statements, we do not find that any part of the statement is untrue, unreliable or untrustworthy on the basis of which, it may be possible to extend some benefit of doubt to the accused.
As per the site plan (Exh. PR), the flour mill (Atta Chakki) of Tara Singh, Sarpanch of the village is at a distance of 160 feet from the house of Som Raj. In respect of the beatings to deceased-Som Raj at flour mill, (PW-5), Darshan Lal is the only prosecution witness examined. He has been found to be believable, i.e. the second incident.
It is the prosecution case that the clothes of Som Raj were torn off and he was in naked position. He had hidden himself in the house of Bansi Lal. Bimla Devi wife of Aagya Ram son of Bansi Lal has been examined as PW-6. Though, she has not recognized the accused as the member of the mob who has given beatings to the deceased but she has admitted that Som Raj in naked condition had entered into her house and a large number of persons were following him. In the cross-examination conducted by the Public Prosecutor, she admitted that she had stated before CRA No. 707-SB of 1997 13 the police that Som Raj in naked and injured condition entered into the room of her house and bolted the same from inside. She also admitted that Nardeep Singh, Panch of the village came there and he opened the door and took Som Raj from the room. She also admitted that her statement before the police that Som Raj had worn the clothes of her husband which included one pant and shirt. Bimla Devi has not been further cross-examined by the accused. PW-4, Nardeep Singh, Member Panchayat has been examined, who deposed, in respect of Som Raj, entering the house of Bimla Devi and that he made arrangement to open the door of her house. Therefore, the prosecution story that the Som Raj was given beatings after having been rescued from the house of Bansi Lal as deposed by Bimla Devi stands corroborated with the statement of (PW-5), Darshan Lal that all the accused caught hold of Som Raj and started beating him and brought near the bus stand of the village, i.e. the third incident.
It is at the bus stop, Ram Ji, SPO in uniform gave kick blows with his shoes to Som Raj on his head, on his chest and on his neck. He also then pressed the neck of Som Raj with the full force on the person of Som Raj, i.e., the forth incident, again proved by Darshan Lal PW-5.
Apart from the eye-witness account in respect of extent of beatings given by the accused, the testimony of PW-4 Nardeep Singh and PW-6 Bimla Devi supports the prosecution case. As per the prosecution case, the deceased, Som Raj was given beatings at four different places in the close vicinity of each other only for the reasons that he has thrown stones at the house of the accused, CRA No. 707-SB of 1997 14 Though, there is no conclusive prosecution evidence, in respect of mental condition of Som Raj, but the learned trial Court has recorded a finding that Som Raj was of mentally unsound mind. Instead of helping, a person of unsound mind to stand up and face the challenges of the society, the accused have taken law into their own hand and given merciless beatings to such person in a short duration at different places.
Learned trial Court has recorded a finding that since none of the injuries is by the sharp edged weapon and keeping in view the extent and nature of the injuries, the accused cannot be said to have an intention to take life of the accused and therefore, convicted the accused for an offence under Section 304 Part II.
We are unable to subscribe to the view taken by learned trial Court. Though, it can be said that the occurrence started suddenly, may be, when the deceased Som Raj has thrown stones but such sudden unfortunate incident has led to multiple incidents of beatings. It is not a case of inflicting injuries on sudden provocation but repeated attempts made on the person of the deceased shows that the intention of the accused was to cause death of the deceased-Som Raj. If such was not the intention, the accused could have chased away Som Raj from their roof and had not followed him firstly to the flour mill (Atta Chakki) of Sarpanch Tara Singh; then to the house of Bimla Devi; and then to the bus stop.
Apart from the eye witness account, the chappal recovered from the roof of the house (Exs. P8 and P-9), towel (Ex. P7), one parna (Ex. P-6) and one torn shirt (Ex. P-5) recovered near the bus stand are the other incriminating circumstances against the accused. The disclosure statement CRA No. 707-SB of 1997 15 of the accused-Sukhdev Singh (Ex. PK/1) led to recovery of Ghotna (Ex. P-
1). Disclosure statement of Sandeep Singh led to recovery of chain of motor cycle (Ex P-2). Exs. P-3 and P-4 are the shoes worn by the accused Ram Ji with which he had given beatings to Som Raj. That evidence shows that all the accused shared a common intention when they started giving merciless beatings to mentally unstable person- Som Raj.
Though, the accused were not possessed of sharp edged weapon but it is not a case of single blow given in head. It is the case of numerous attacks on a mentally unstable person. Such brutal attacks leave no manner of doubt that the accused shared a common intention to cause death. The Ghotna blow on the head and the nature and extent of injuries on the person of Som Raj supports the prosecution case. The extent of bodily injuries caused to Som Raj are sufficient to infer that the accused were aware that such bodily injuries shall cause death.
In a judgment of Hon'ble the Supreme Court (2010) 9 SCC 799, Singapagu Anjaiah vs. State of Andhra Pradesh, it has been held that the intention has to be gathered from weapon used, part of the body chosen for assault and nature of the injuries caused and that nobody can enter into the mind of the accused. It was held to the following effect: -
(16) In our opinion, as nobody can enter into the mind of the accused, his intention has to be gathered from the weapon used, the part of the body chosen for the assault and the nature of the injuries caused. Here, the appellant had chosen a crowbar as the weapon of offence. He has further chosen a vital part of the body i.e. the head for causing the injury which had caused multiple fractures of CRA No. 707-SB of 1997 16 skull. This clearly shows the force with which the appellant had used the weapon. The cumulative effect of all these factors irresistibly leads to one and the only conclusion that the appellant intended to cause death of the deceased.
(20) In the present case, as pointed out above, the weapon used, the part of the body chosen for the assault and the intensity with which the appellant assaulted the deceased clearly go to show that he intended to cause the death of the deceased.
In view of the above, the judgment passed by learned trial Court convicting the accused for an offence under Section 304 Part II of the Indian Penal Code is set aside and instead the appellants are convicted for an offence under Section 302 IPC.
After the arguments are concluded, learned counsel for the appellants produced Ramesh Singh-accused pointing out that the said accused is physically disabled, therefore, he deserves leniency.
We do not find any merit in the argument raised by learned counsel for the accused to grant him any benefit of leniency. The present physical condition of the accused is not a mitigating circumstance, while considering the commission of crime by the accused 15 years ago.
Consequently, Criminal Appeal Nos. 707-SB of 1997 and 775- SB of 1997 are dismissed, whereas Criminal Appeal No. 101-SB of 1998 is allowed and Criminal Revision No. 1228 of 1997 is disposed of in the manner stated here-in-under. The accused Sukhdev Singh, Sandeep Singh, Ramesh Singh sons of Ravi Singh and Lal Ji @ Tarlok Singh son of Inder CRA No. 707-SB of 1997 17 Singh and Ram Ji son of Bahadur Singh are convicted for an offence under Section 302 of the Indian Penal Code. All the accused-appellants are sentenced to undergo imprisonment for life and shall pay a fine of Rs. 20,000/- each, which amount on realization be disbursed as compensation to Smt. Asha Devi mother of the deceased. In default of payment of fine, the appellant shall further under go rigorous imprisonment for a period of one year.
With the said modifications, the above said criminal appeals are disposed of.
(HEMANT GUPTA)
JUDGE
21.1.2011 (GURDEV SINGH)
preeti JUDGE