Punjab-Haryana High Court
Palwinder Singh @ Pinda S/O Gagdush ... vs Amrik Singh Etc. In The on 8 December, 2009
Bench: Mehtab S.Gill, Ram Chand Gupta
Crl.Appeal No.661-DB of 2000 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl.Appeal No.661-DB of 2000
Date of Decision: December 8, 2009
1.Palwinder Singh @ Pinda s/o Gagdush Singh;
2.Iqbal Singh @ Satwinder Singh s/o Jagdish Singh, both residents of
Village Moranwali, Police Station Garhshankar, District Hoshiarpur.
.....Appellants
v.
State of Punjab
.....Respondent
Crl.Appeal No.666-DB of 2000
1.Gurtek Singh @ Teki s/o Joginder Singh;
2.Jaswinder Singh @ Manna s/o Gurdev Singh; and
3.Jaswinder Singh @ Binda s/o Balbir Singh; all residents of Moranwali,
Police Station Garhshankar, District Hoshiarpur.
.....Appellants
v.
State of Punjab
CORAM: HON'BLE MR.JUSTICE MEHTAB S.GILL
HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr.H.S.Sandhu, Sr.Advocate with
Mr.Varun Walia, Advocate
for the appellants in Crl.A.No.661-DB of 2000.
Mr.R.S.Cheema, Sr.Advocate with
Ms.Tanu Bedi, Advocate
for the appellants in Crl.A.No.666-DB of 2000.
Mr.S.S.Gill, Additional Advocate General,
Punjab.
Crl.Appeal No.661-DB of 2000 -2-
RAM CHAND GUPTA, J.
1. Both the above mentioned appeals, i.e., Criminal Appeal Nos.661-DB and 666-DB of 2000, are being decided by this common judgment, as the same have arisen out of the same judgment of conviction and order of sentence dated 22.11.2000 passed by the Court of Sessions Judge, Hoshiarpur, vide which all the appellants-accused were convicted for offences under Section 148 of the Indian Penal Code (hereinafter to be referred as `IPC') and 302 read with Section 149 of the IPC and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1000/- each, and in default of payment of fine to further undergo rigorous imprisonment for two months each, for offence under Section 148 IPC and further sentenced to undergo rigorous imprisonment for life for offence under Section 302 read with Section 149 IPC.
2. Briefly stated, the case of the prosecution, as per statement Ex.PG got recorded by Makhan Singh (PW5) son of Harbhajan Singh, resident of Alipur, Police Station Garhshankar, on 10.3.1998 before Mohinder Singh, Inspector, SHO, Police Station Garhshankar, runs as under:
3. Makhan Singh, complainant, are five brothers and three sisters. Two of his sisters, namely, Paramjit Kaur and Manjit Kaur are married with Joginder Singh (PW8) and Tarlochan Singh, both sons of Kashmir Singh, in Village Moranwali. About 3-4 days before the occurrence, Gurtek Singh alias Teki, son of Joginder Singh, Jaswinder Singh @ Manna son of Dev Singh, Iqbal Singh, Jagdish Singh and his brother Pinda, Jasbir Singh son of Ajaib Singh and Balwinder Singh son Crl.Appeal No.661-DB of 2000 -3- of Balbir Singh had gone to the house of sister of Makhan Singh, namely, Paramjit Kaur, and abused her and her husband and had also broken house-hold articles regarding which compromise was to be made before respectable persons of the village and hence, Makhan Singh alongwith his younger brother Sukhjiwan Singh @ Sukhi (deceased) and Joginder Singh, husband of Paramjit Kaur were going on scooter bearing No.PB-24-3349 `Bajaj Chetak' from village Moranwali to village Alipur via Bhaura to bring father of Makhan Singh. Further according to him when they reached about 200/300 meters short of Bein (Rivulet) on way from Moranwali to Bhaura, it was at about 4.30 p.m. when Gurtek Singh @ Teki, Jaswinder Singh @ Manna, Iqbal Singh and Jasbir Singh armed with naked Kirpans and Balwinder Singh @ Binder and Pinda armed with dangs emerged from the fields abutting the road and on seeing them came on the road. Gurtek Singh @ Teki raised lalkara that Joginder Singh and his wife's brothers should not be escaped and he gave kirpan blow on the head of Sukhjiwan @ Sukhi, who was driving the scooter. Makhan Singh and Joginder Singh ran backwards to save themselves. Within their sight Jaswinder Singh @ Manna gave kirpan blow thrust-wise on the left thigh of Sukhjiwan @ Sukhi, who fell down on the metalled road and while he was lying, Jasbir Singh gave him blow with his kirpan, who raised his hand towards the blow and the blow hit in between the fingers of his left hand. Iqbal Singh gave blow with his kirpan thrust-wise on the groin of Sukhjiwan Singh @ Sukhi and he started crying with pain. Balwinder Singh and Pinda gave blows with their respective dangs to Sukhi and thereafter they ran away towards Village Bhaura with their respective weapons.
Crl.Appeal No.661-DB of 2000 -4-
4. Makhan Singh, complainant and Joginder Singh PW removed Sukhjiwan Singh @ Sukhi on the scooter to Civil Hospital, Garhshankar, where Surinder Singh son of Bakhsha Singh r/o Chack Phullu also met them, who got Sukhjiwan @ Sukhi admitted in the hospital at 5.30 p.m. He was given treatment. However, he succumbed to injuries at 6.20 p.m. on the same day.
5. On receiving information by Mohinder Singh, Inspector, PW9, through wireless at 6.00 p.m., while he was present at bus stand of village Rodmajara in connection with patrolling and checking, he reached Civil Hospital and recorded statement Ex.PG of Makhan Singh, complainant, PW5, and the same was completed at 8.00 p.m. on the same day. He made his endorsement on the same as Ex.PG/1 and sent the same to Police Station for registration of the case, on the basis of which formal FIR Ex.PG/2 was recorded. Copy of FIR reached the Illaqa Magistrate at 10.10 p.m. on the same day.
6. The Investigating Officer prepared the inquest report on the dead body of the deceased and sent the same for postmortem examination. He also visited the place of occurrence and prepared rough site plan and lifted blood stained earth. He recorded statement of witnesses. He arrested the accused. He recovered the weapons with which injuries were caused by the accused, as per their disclosure statements.
7. On completion of the investigation, report under Section 173 of the Code of Criminal Procedure (hereinafter to be referred as `Cr.P.C.) was presented in the Court of Sub Divisional Judicial Magistrate, Garshankar, who committed the case to the Court of Sessions Crl.Appeal No.661-DB of 2000 -5- vide order dated 1.6.1998.
8. One of the accused, namely, Jasbir Singh son of Ajaib Singh could not be arrested and he was declared proclaimed offender.
9. Learned trial Court finding prima facie case charged all the five accused for offences punishable under Sections 148 and 302/149 IPC, to which they did not plead guilty and claimed trial.
10. In support of the contention, the prosecution examined as many as 9 PWs.
11. PW1 is Dr.Reeta Dhami, the then Medical Officer, Civil Hospital, Garhshankar, who conducted postmortem examination on the dead body of Sukhjiwan Singh @ Sukhi son of Harbhajan Singh of Village Alipur and found the following injuries on his person:
"1. Incised wound 4 x 2 cm long on the left parieto temporal region, 9 cm from the left eyebrow and 7 cm from the left pinna. On dissection, underlying bone intact. Brain and dura mater N.A.D.
2. Linear bruise 13 x .5 cm on the back of left side of chest extending from midline to lower end of scapula .
3. Bruise 3 x .2 cm on the medial aspect of forearm, left 9 cm from the wrist.
4. Incised wound 9 x 1 cm on the palmer aspect of the left hand extending from middle of front of wrist to web space between little finger and ring finger. Underlying muscles, tendons, vessels and bones cut.
5. Incised wound 5.5 x 1.5 cm on the anterior lateral aspect of the left thigh 18.5 cm above the knee. On Crl.Appeal No.661-DB of 2000 -6- dissection underlying muscles and vessels upto bone were cut. Clots were present."
12. She further deposed that all other organs were healthy and that in her opinion the cause of death in this case was heamorrhage and shock as a result of injuries no.4 and 5 , which were sufficient to cause death in the ordinary course of nature and that all the injuries were ante mortem in nature. She also deposed that probable duration between injuries and death was within few hours and between death and postmortem was within 24 hours. She had proved copy of postmortem report Ex.PA, police request Ex.PB and the inquest report Ex.PC.
13. PW2 is Bal Kishan, the then Additional Ahlmad in the Court of Additional Civil Judge, Sr.Division,Garhshankar, who deposed that as per record accused Jasbir Singh was declared proclaimed offender on 19.8.1998.
14. PW3 is Kewal Singh, MHC and PW4 is Gurdev Singh, Constable, who are formal witnesses and have tendered in evidence their respective affidavits, Ex.PE and PF.
15. PW5 is Makhan Singh, complainant, on whose statement Ex.PG, the present case was registered, as detailed above.
16. PW6 is Paramjit Singh, Draftsman, District Courts, Hoshiarpur, who prepared the scaled site plan Ex.PH of the place of occurrence on 24.5.1998.
17. PW7 is Tarlochan Singh, HC, who is also a formal witness and who has tendered in evidence affidavit of his statement Ex.PJ.
18. PW8 is Joginder Singh son of Kashmir Singh, another eye- witness of the occurrence, who corroborated the version of Makhan Crl.Appeal No.661-DB of 2000 -7- Singh, complainant.
19. PW9 is Mohinder Singh, Inspector, i.e., Investigating Officer of this case, who recorded the statement of Makhan Singh and investigated the case,
20. Statements of all the accused in terms of Section 313 Cr.P.C. was recorded in which they denied the allegations and pleaded to be innocent.
21. Accused Gurtek Singh @ Teki and Jaswinder Singh @ Binda had taken the plea that they have been falsely implicated in this case and accused Palwinder Singh @ Pinda and Iqbal Singh had taken the plea that they have been falsely implicated in this case due to party faction in the village. Accused Jaswinder Singh @ Manna son of Gurdev Singh had taken the following plea:
"Kashmir Singh, father of witness Joginder Singh connived with Amrik Singh, Harbishan Singh and Harbax Singh alias Gurbax Singh sons of Surain Singh, resident of Village Moranwali to grab the agricultural land of Harbinder Singh Rai son of Tara Singh Rai. He filed a case against the said Kashmir Singh and the said remaining three persons, who are the real uncles of Harbinder Singh Rai. This civil case, which was a suit for declaration and permanent injunction, filed by said Harbinder Singh Rai against the said persons, remained pending in the Court of Civil Judge at Garhshankar. I was doing its Pairvi in favour of Harbinder Singh Rai. A compromise was effected between the parties, i.e., plaintiff and Amrik Singh, Crl.Appeal No.661-DB of 2000 -8- Harbishan Singh & Harbax Singh, at last. So, the witness Joginder Sngh and his other family members and relatives were annoyed of it. The deceased is the real brother-in-law of Joginder Singh. The present criminal case charged against me is merely a case of accident, but in connivance with the police it has been concocted to be a murder case and has been foisted upon me. At the very initial stage, my father complained this fact that it was a case of accident to the higher authorities also. I have not been afforded opportunity to cross-examine the doctor witness PW, who had conducted the postmortem on the deceased. Thereafter my application filed under Section 311 Cr.P.C. to recall the said witness for her further cross-examination has also been declined. So, the full facts relating to the factum of accident in the eyes of medical science could not be brought on the record. I am innocent and I have not committed the offence charged against me."
22. In defence accused examined six witnesses.
23. DW1 is Vinod Goyal, Clerk, Judicial Record Room, Hoshiarpur, who could not bring the summoned record as the same was burnt in the fire which broke down in June 1998.
24. DW2 is Anil Kumar Choudhary, Senior Assistant from the office of Governor of Punjab, Chandigarh, who deposed that a complaint was received from Gurdev Singh son of Chainchal Singh of village Moranwali, District Hoshiarpur, which was sent to Principal Secretary, Home Department, Punjab, for necessary action.
Crl.Appeal No.661-DB of 2000 -9-
25. DW3 is Kulwinder Singh, Constable, who brought complaint sent by Gudev Singh son of Chainchal Singh regarding this FIR, which was marked to SSP, Hoshiarpur, for enquiry.
26. DW4 is Amrik Singh, Ahlmad of the Court of JMIC, Garhshankar, who has proved regarding filing of civil suit titled Harvinder Singh Rai @ H.B.Rai, Advocate vs. Amrik Singh etc. in the Court at Garhshankar.
27. DW5 is Dr.Harish Tuli, Professor and head of Department. of Forensic Medicine, Govt. Medical College, Patiala, who deposed, after going through the post mortem report, Ex.PA of Sukhjiwan Singh, deceased, that injury no.1 is on the head and however, as per Doctor's report brain and pleura and bone were intact and that since rest of the injuries are on non-vital parts of the body, so if prompt, efficient and quality medical aid would have been given to the victim, the patient could survive.
28. DW6 is Gurdev Singh, father of Jaswinder Singh @ Manna, who had sent complaints to higher authorities regarding alleged false involvement of his son Jaswinder Singh @ Manna in this case.
29. After hearing learned public prosecutor for the State and learned counsel for the accused, learned trial Court came to the conclusion that prosecution has been able to prove offences under Sections 148 and 302 read with Section 149 IPC against all the accused without any shadow of reasonable doubt and hence, it convicted and sentenced the accused, as aforementioned, against which the present appeals have been filed.
30. We have heard learned counsel for the appellants-accused, Crl.Appeal No.661-DB of 2000 -10- learned State counsel and have gone through the whole record carefully.
31. It has been argued by learned counsel for the appellants- accused that as per case of the prosecution and as per depositions of PW5 Makkhan Singh and PW8 Joginder Singh, they have given detail account of the injuries allegedly caused by the accused and Jasbir Singh who was declared proclaimed offender, to the deceased and that it was alleged that accused Iqbal Singh caused injury with his sword on the testicle of Sukhjiwan Singh deceased, however no such injury was found by Dr.Reeta Dhami, PW1, who conducted autopsy on the dead body of Sukhjiwan Singh and that no such injury has also been mentioned in the bed head ticket, Ex.DA, and hence it is argued that Iqbal Singh has been falsely implicated in this case.
32. It is further argued that as per case of the prosecution four of the accused including Jasbir Singh were armed with swords and two of the accused were armed with dangs and that all caused injuries to Sukhjiwan Singh. However, as per medical evidence, as deposed by Dr.Reeta Dhami, only five injuries were found on the person of the deceased. It is further contended that injuries no.1, 2 and 3 are simple in nature. As per medical evidence, death was caused due to injuries no.4 and 5, which are not on any vital part of the body. It is further argued that even injuries no.2 and 3 are only bruises and the same are also not on any vital part of the body. It is further contended that as per case of the prosecution the injuries were given to the deceased even while he was lying on the ground. It is further contended that no injury was found on the groin of the deceased as deposed by PW5 Makhan Singh and PW8 Joginder Singh. It is further contended that the approach adopted Crl.Appeal No.661-DB of 2000 -11- by learned trial Curt that Doctor did not properly conduct the postmortem examination after close physical examination of the dead- body cannot be said to be a legal one and that no such inference can be drawn that the Doctor did not conduct the postmortem examination after close examination of the dead body. Hence, it is argued that it cannot be said that the object of the alleged unlawful assembly was to commit murder of Sukhjiwan Singh. Hence, it is contended that no case for offence under Section 302 read with Section 149 IPC is made out against the accused.
33. On this point reliance has been placed upon State of Punjab vs. Tejinder Singh and another 1995 Supreme Court Cases (Crl.) 987; Parusuraman alias Velladurai and others vs. State of Tamil Nadu 1992 Supreme Court Cases (Crl.) 292; Karam Singh vs. State of Punjab 1994 Supreme Court Cases (Crl.) 64; Rama Meru and another vs. State of Gujarat AIR 1992 Supreme Court 969; Bawa Singh vs. State of Punjab 1993 Crl.L.J. 49; Kartar Singh and others vs. State of Punjab 1996 Crl.L.J. 1722; and Ranjha and another vs. State of Punjab 1996 Crl.L.J. 3991.
34. Learned State counsel has not been able to rebut this argument of learned counsel for the accused.
35. A careful perusal of testimony of Dr.Reeta Dhami PW1 and the bed head ticket of the deceased, Ex.DA, shows that no injury was found on groin of the deceased which was attributed to accused Iqbal Singh by the witnesses. Hence, only inference which can be drawn is that Iqbal Singh accused did not participate in the occurrence and that he was not party to the common object of the unlawful assembly to cause Crl.Appeal No.661-DB of 2000 -12- injury to Sukhjiwan Singh @ Sukhi and that he has been falsely implicated in this case.
36. Further only injury no.1 is on the vital part of the body and however, the same is simple in nature and on dissection underlying bone was intact and as per medical evidence death was caused on account of injuries no.4 and 5, which are on non-vital parts of the body. Hence, there is force in the argument of learned counsel for the appellants- accused that prosecution has failed to prove that accused intended to commit murder of Sukhjiwan Singh.
37. There are three types of culpable homicide under Indian Penal Code. The first is defined in Section 300 IPC as murder and the second may be termed as culpable homicide of 2nd degree which is punishable under Ist part of Section 304 IPC and there is culpable homicide of 3rd degree, i.e., culpable homicide punishable under IInd part of Section 304 IPC.
38. Hence, taken into consideration the kind of injuries found on the body of deceased in this case, as per medical evidence, as described above, it cannot be inferred that the accused intended to commit murder of Sukhjiwan Singh or that they intended to inflict such an injury which in the ordinary course of nature was sufficient to cause death. Hence the offence committed by other appellants-accused would also come under Section 304 part I read with Section 149 IPC and not under Section 302 read with Section 149 IPC .
39. In Tejinder Singh's case (supra) except one injury on the head, all other injuries were caused on non-vital parts of the body and the head injury was only muscle deep. Hence in the circumstances of the Crl.Appeal No.661-DB of 2000 -13- case, both the accused were held liable to be convicted under Section 304 Part I read with Section 34 and not under Section 302 IPC.
40. Hence, in view of the above discussion, appeal filed by Iqbal Singh, appellant-accused is accepted. Judgment of his conviction and sentence is set aside and he is acquitted of the charges framed against him.
41. However, conviction of accused Palwinder Singh @ Pinda, Gurtek Singh @ Teki, Jaswinder Singh @ Manna and Jaswinder Singh @ Binda for offence under Section 302 read with Section 149 IPC is converted to offence under Section 304 Part I read with Section 149 IPC and while setting aside their sentence to undergo life imprisonment for offence under Section 302 read with Section 149 IPC, they are sentenced to undergo rigorous imprisonment for six years each, for offence under Section 304 Part I read with Section 149 IPC, while maintaining the sentence passed for offence under Section 148 IPC by the trial Court. However, both the sentences shall run concurrently and the imprisonment already undergone by the accused during investigation, trial and during pendency of this appeal after conviction shall be set off, as provided under Section 428 Cr.P.C. With this modification in the quantum of sentence, the appeals filed by Palwinder Singh @ Pinda, Gurtek Singh @ Teki, Jaswinder Singh @ Manna and Jaswinder Singh @ Binda are dismissed.
(Mehtab S.Gill) (Ram Chand Gupta)
Judge Judge
December 8, 2009
meenu
Note: Whether to be referred to reporter? Yes/No.