Punjab-Haryana High Court
Mangal Singh And Ors. vs State Of Punjab on 8 February, 1996
Equivalent citations: 1996CRILJ3258
Author: K.S. Kumaran
Bench: K.S. Kumaran
JUDGMENT V.K. Bali, J.
1. Appellants, Mangal Singh, Kashmir Singh, Bachan Singh, Hardev Singh, Lakhvinder Singh and Beant Singh were tried along with their co-accused Charan Singh and Mehanga Singh, since deceased, and Gurmej Singh and Kabal Singh, since acquitted, for offences punishable under Section 148/302/452/326/324/323 read with Section 149 of the Indian Penal Code, for having killed Gurdip Singh and injured Balkar Singh, Baldev Singh, Bhajan Singh and Mohinder Singh and vide order of conviction and sentence recorded against them by Shri A.C. Aggarwal, Additional Sessions Judge, Gurdaspur, all the appellants were sentenced to undergo imprisonment for life and to lay a fine of Rs. 1000/- each, and in default thereof to further undergo RI for three months under Section 302 IPC read with Section 149 of the said Code. They were also sentenced to undergo RI for six months under Section 148 IPC as also RI for one year and to pay a fine of Rs. 200/- each and in default thereof to further undergo RI for one month, under Section 449 IPC. They were also sentenced to undergo RI for one year and to pay a fine of Rs. 200/- each and in default thereof, to further undergo RI for one month, under Section 326 read with Section 149 IPC and for six months and three months RI under Sections 324 and 323 read with Section 149 IPC. All the sentences were, however, ordered to run concurrently.
2. As mentioned above, Charan Singh and Mehanga Singh died during the currency of the trial and Gurmej Singh and Kabal Singh were acquitted by giving them the benefit of doubt.
3. The facts, leading to death of Gurdip Singh and injuries sustained by as many as four persons, named above, were brought to the notice of Prakash Singh, Inspector/SHO, Police Station Sadar Gurdaspur by Mohinder Singh, PW 3, on June 12, 1990 at 1.10 p.m. He stated that he was resident of village Dugri and was doing cultivation. On the eventful day i.e. June 12, 1990, at about 6-6.30 a.m. Gurdip Singh, Baldev Singh, Bhajan Singh and Balkar Singh, who were his relations, had come to his house in order to take his tractor. In the meantime, Charan Singh son of Sunder Singh, armed with a Barchhi, Ghara son of Charan Singh, armed with a Dang, Bachan Singh son of Sher Singh, armed with a Barchhi, Deba son of Gurbax Singh, armed with a Barchhi, Billa son of Burbax Singh, armed with a Barchhi, Mangal Singh son of Rattan Singh, armed with a Barchhi, Lakha son of Gurbax Singh, armed with a Barchhi, Mehanga Singh son of Sher Singh, armed with a Kirpan, Gurmej Singh son of Shiv Singh, armed with a Barchhi and Kashmir Singh son of Shiv Singh, armed with agandasi, entered in their courtyard. Immediately on their arrival, Charan Singh gave a Barchhi blow on the left side of the chest of Gurdip Singh, who fell down. Meanwhile, Bachan Singh gave a Barchhi blow on the left arm-pit of Bhajan Sigh and Deba son of Burbax Singh gave a barchhi blow on the right thigh of Bhajan Singh, who fell down. Billa son of Burbax Singh gave a Barchhi blow on his right cheek while he was lying fallen. In the meantime, Manga) Singh gave a Barchhi blow on the right thigh near the testicles of Balkar Singh and he fell down. Ghara son of Charan Singh gave a dang blow on his left thigh while he was lying fallen. In the meantime, Lakha son of Gurbax Singh gave a Barchhi blow on the right thigh of Baldev Sinngh, who fell down. While he was lying fallen, Gurmej Singh son of Shiv Singh gave a barchhi blow near his right elbow. Kashmir Singh gave a gandasi blow from its reverse side near his left wrist. Mehanga Singh kept on raising lalkara carrying a kirpan in his hand saying tht if any body would dare to come forward, he would also be done to death. On hearing hue and cry, Kudan Singh son of Sadhu Singh and Nirmal Kaur wife of Bhajan Singh, who were present at the spot, also witnessed the whole occurrence. They pelted brick-bats in their self defence. The assailants with their respective weapons ran away from the spot after inflicting injuries to them. The cause of grouse was that on June 10, 1990, Bacha Singh, Mangal Singh and he had exchaged abuses. The appellants nursed a grudge in their minds and attacked with their weapons upon them when they were present in their house. Kundan Singh and he put the injured in his tractor-trolly and brought them to Civil Hospital, Gurdaspur and got them admitted there. The doctor declared Gurdip Singh dead and, after dressing the wounds of the remaining injured persons, admitted them in the hospital.
4. Before the matter might proceed any further, it may be mentioned here that Hardev Singh is also known as Deba whereas Lakhvinder Singh is alias Lakha. Beant Singh is alias Billa and Kabal Singh is alias Ghara. It may also be mentioned here that six accused, out of ten, are closely related to each other. Sher Singh had four sons, namely, Mehanga Singh, Bachan Singh, Rattan Singh and Gurbax Singh. Mehanga since, deceased and Bachan Singh are accused in this case. Rattan Singh had two sons, namely, Mangal Singh and Lakhwinder Singh. These two sons of Rattan Singh are also accused and Gurbax Singh has two sons, namely, Hardev Singh and Beant Singh, who are also accused. The deceased and injured are also closely related. Sadhu Singh has two sons, namely, Balkar Singh and Bhajan Singh. Balkar Singh and Bhajan Singh are injured in this case. Bhajan Singh had a son-Gurdip Singh, who died in this occurrence. Mohinder Singh was also injured in this occurrence and his son Baldev Singh was also likewise injured. Wife of Sadhu Sigh and wife of Mohinder Singh are sisters. In the manner aforesaid, all the injured and deceased are inter se related.
5. With a view to bring home the offence against the appellants and others, the prosecution relied upon the statement of Dr. K.S. Babbar, PW 5, Medical Specialist, Civil Hospital, Gurdaspur. He stated that on June 12, 1990 at 3.30 p.m. he had conducted post-mortem on the dead body of Gurdip Sing, aged 25 years and found following injury on his person:-
There was a punctured wound 2.5 cm x 1 cm just in middle to left nipple".
On dissection of the wound, the doctor found that underlying muscles and pleura were cut. Pleural cavity was filled with blood. Lung parenchyma was cut and front of left ventricle was cut through and through (1.5 cm). Through and through wound was present on the posterior surface of left ventricle and it was about 0.5 cm. in size. On putting to probe, all wounds were found to be in one line i.e. the probe passed through chest wall, pleura, opening of posterior and anterior surface of left ventricle. Corresponding cut was present on the shirt and under- shirt. Both the chambers of the heart were empty. Stomach contained about 50 cc of mucoid fluid in it. Small intestines were healthy and contained some digested material. Large intestines were healthy and contained 50 ml of urine. All other organs were healthy. In the opinion of the doctor the death was due to injury of heart and lung leading to haemorrhage and shock which was sufficient to cause death in ordinary course of nature and this injury was ante mortem in nature. Probable time that elapsed between injuries and death was instantaneous and between deaath and post-mortem within 24 hours. Dr. Sudhir Kumar from E.S.I. Dispensary, Dina Nagar was examined as PW 8. He stated that on June 12, 1990 11 a.m. he had medico legally examined Bhajan Singh son of Sadhu Singh and found following injuries on his person :-
1. An incised wound 4 cm x 2 cm, the depth not probed, the wound was present on anterior side of left shoulder. Advised X-ray. Bleeding was present in the wound.
2. An incised wound 2 cm diameter on the anterior side of right thigh 13 cm below anterior superior iliac spine of right side. Depth not probed. Advised X-ray.
3. A contusion was present on back of right thigh in its upper l/3rd of thigh of diameter 5cm. Advised X-ray.
4. An incised wound L shaped of 2 cm. x 0.2 cm. and 0.5 cm. x 0.2 cm. on the right cheek.
5. A swelling measuring 7 cm x 5 cm on the supera mamory region of left side of chest. Tenderness was present.
This patient was semi-conscious. Pulse and blood presure was not recordable. Pupils of both sides were normal and reacting to light. Injury No. 1 was with sharp pointed weapon and injuries 2 and 4 with sharp weapon and rest with blunt weapon. Probable duration of the injuries was wihin six hours. Injuries 1 and 5 were kept under observation for surgical opinion, whereas injury No. 4 was declared to be simple. On receipt of Surgical and X-ray report, injury No. 1 was declared to be grievous and rest simple.
6. On the same day, he also medically examined Baldev son of Mohinder Singh and found following injuries on his person :-
1. An incised wound 5 cm x 2 cm. on anterior side of right thigh 10 cm below anterior superior iliac spine of right side. Profuse bleeding was present. Depth not probed.
2. An incised wound 4.5 cm x 2.0 cm on inner side of the right fore-arm 12 cm above right wrist joint. Bleeding was present.
3. Complained of pain on outer side of upper 1/ 3rd left leg.
4. A contusion 3 cm x 1.5 cm on outer side of left fore-arm 3 cm below left elbow joint. Advise X-ray.
5. A contusion 3 cm x 1.5 cm on anterior side of left upper arm 5 cm above left elbow joint. X-ray advised.
Injuries 1 and 2 were the result of sharp weapon whereas injuries 3, 4 and 5 were the result of blunt weapon. Injuries 1 and 2 were kept for surgical opinion and injuries 4 and 5 for X-ray. Injury No. 3 was declared to be simple and probable duration of injuries was within six hours. Vide his opinion given later, the doctor declared all the injuries to be simple in nature.
On the same day at 12.05 p.m., he also medically examined Balkar Singh son of Sadhu Singh and found following two injuries on his person :-
1. An incised wound 3.5 cm 1.0 cm on anterior side of right inguinal region. Bleeding was present. The wound was 4 cm below right anterior superior iliac spine.
2. A contusion 5 cm in diameter on middle left thigh on outer side.
Injury No. 1 was the result of sharp weapon whereas injury No. 2 was the result of blunt weapon. Injury No. 1 was kept under observation for surgical opinion and injury No. 2 was declared to be simple. Probable duration of the injuries was within six hours. He later opined that injury No. 1 on the person of Balker Singh was simple in nature.
7. On the same day, he also examined Mohinder Singh son of Faqir Singh and found following injury on his person :-
1. An incised wound 3 cm x 1.5 cm on back of left fore-arm, 3 cm above wrist joint.
The injury was result of sharp weapon and was simple in nature. Probable duraion was within six hours.
8. Prosecutions also examined Baldev Singh, Bhajan Singh, Moohinder Singh and Balkar Singh, the injured witnesses, as PW 1 to PW 4 respectively. J.S. Dhanjal, draftsman was examined as PW 6 and he stated that he prepared the site plan on scale at the instance of Mohinder Singh PW correctly as per spot. Inspector Prakash Singh, who investigated the case, was examined as PW 7. He stated that on June 12, 1990 he was posted as Station House Officer, Police Station Sadar Gurdaspur and on that day he received information from Civil Hospital, Gurdaspur, regarding death of Gurdip Singh due to injuries. He along with other police officials went to the hospital where he again received an information regarding admission of four injured, namely, Baldev Singh, Mohinder Singh and Balkar Singh. He moved an application, Ex.PG to the doctor, who made his endorsement declaring Mohinder Singh fit to make statement. He has given other steps also taken by him during investigation culminating into putting of the challan in Court against all the accused.
9. The accused, when examined under Section 313 of the Code of Criminal Procedure, denied their participation in the crime leading to death of Gurdip Singh and injuries to Baldev Singh, Balkar Singh, Mohinder Singh and Bhajan Singh. They further stated that they have been falsely involved in this case.
10. After resultant trial, the appellants were convicted in the manner, fully indicated above whereas Charan Singh and Mehanga Singh died during the currency of the trial, Gurmej Singh and Kabal Singh were acquitted by giving them the benefit of doubt. Before we proceed any further in the matter, we would only like to comment at this stage that all the injured witnesses have been examined and they have fully supported the prosecution version.
11. We have heard Mr. M. S. Rakkar, learned Senior Advocate and Mr. A.S. Kalra, Advocate, appearing on behalf of the appellants and Mr. Mehtab Singh, learned Deputy Advocate-General, Punjab and with their assistance have gone through the records of the case.
12. The first contention of learned counsel for the appellants is that Gurdip Singh had actually died at about 3-4 AM on June 12, 1990 and his dead body was brought to the house and thereafter, with due deliberations and consultations, the case was planted against the appellants and others by ascribing all of them specific roles, as have been narrated while giving details of events as given by Mohinder Singh, the first informant. With a view to prop up the contention, noted above, reliance is placed upon the testimony of PW 5 Dr. K. S. Babbar and, in particular, the cross-examination, adverted to him where he stated that it takes 12 hours during which rigor mortis develop in all four limbs, and they remain intact for next 12 hours and thereafter they start disappearing and take about 12 hours to disappear completely. He also stated that as rigor mortis were, found in the four limbs of deceased Gurdip Singh, the death was more than 12, hours before when postmortem was conducted. It may be recalled that as per the prosecution version, the occurrence took place at about 6-6.30 a.m. on June 12, 1990, and post-mortem on the dead body of Gurdip Singh was conducted at 3.30 p.m. on the same day. Inasmuch as about ten hours had elapsed when the doctor had conducted post-mortem on the dead body of Gurdip Singh, he must have died far before 6/6.30 a.m. and the time can well be pinned down to 3-3.30 a.m. on 12-6-1990, contends the learned counsel. We have given our thoughtful consideration to the contention of the learned counsel, noted above, and find that there is no subsance in it. In our view, the opinion expressed by Dr. K.S. Babbar, PW 5, with regard to rigor mortis is not correct. Modi, in his book titled 'Medical Jurisprudence and Toxicology' 18th Edition, at page 121 opined as follows with regard to rigor mortis:-
Time of on-set : This varies greatly in different cases but the average period of its on set may be regarded as three to six hours after death in temperate climates and it may take two to three hours to develop. In India it usually commences in one to two hourrs after death and takes one to two hours to develop... In Northen India, the usual duration of rigor mortis is twenty four to forty eight hours in wint and eighteen to thirty six hours in summer. According to the investigations of Machenzie in Calcutta the average duration is nineteen hours and twelve minutes, the shortest period being three hours and the longest forty hours.... Cases, have occurred in which rigor mortis developed and disappeared within an hour and a half after death.
Taylor, in his book titled 'Principles and Practices of Medical Jurisprudence', Vol. I, 12th Edition, at page 83, states that "rigor mortis usually commence within two to four hours of death, though they may not become evident until five or seven hours have passed." To this general statement, there are numerous exceptions, some of which can be explained by physical facts. The example given by him is as under:-
In the case of R.V. Aloott (Survey Assizes, 1952) a young man was found stabbed to death in a Railway booking office. When he was first examined, one hour after the crime, rigor mortis was absent, two hours later, however, it was complete. The deceased had fought the attackers vigorously. before receiving a fatal wound".
Layon in his book tiled 'Medical Jurisprudence for India', at page 144, comments as follows :-
Niderkorn found it to be fully developed before the end of the seventh hour after death in 92 out of 113 cases (Tidy, Leg Med. IP 62) Taylor (3rd Edn., 1888, I. 513) gives 5 to 6 hours from death for rigor mortis to set in 16 to 24 for its continuance or 21 to 30 hours from death on an average. Tidy gives 3 to 6 hours and from 36 to 48 hours respectively or 27 to 54 hours from death on average. But in sudden death in a muscular subject from haemorrhage rigor mortis may continue for 14 days or long (Gidy Leg. Med. I, 71)".
From the expert opinion of the Authors, mentioned above, we are of the view that the opinion given by Dr. K. S. Babbar PW 5 that as rigor mortis were found in the four limbs, the death was more than 12 hours before post-mortem is incorrect. That apart, the prosecution is supported by four stamped witnesses and if their presence is either not disputed or is proved, the opinion of the doctor would pale into insignificance.
13. The next contention of learned counsel for the appellants is that there was absolutely no motive for them to have killed Gurdip Singh and injured Baldev Singh, Balkar Singh, Bhajan Singh and Mohinder Singh. All that has been stated is that two days prior to the date of occurrence, some of the accused had exchanged hot words with the first informant. That is too insignificant for the appellants to harbour ill-will that may be so strong so as to commit a ghastly crime like the present one, contents the learned counsel. We find absolutely no force in this contention as well. It all depends upon an individual as to how he takes or reacts to different situations. Different people react to different situations differently. That apart, motive is always embeded in the heart of a culprit. Therefore to say that the motive spelt through the occurrence which took place couple of days earlier, was not enough to kill one person and injure four persons, would be of no assistance to the defence. This contention of the learned counsel is, thus also repelled.
14. The next contention of learned counsel that there was no ooccasion for Balkar Singh, Bhajan Singh and Gurdip Singh to be present at the house of Mohinder singh in the early hours of morning and that too to borrow a tractor and, therefore, they were not present, deserves to be simply mentioned and rejected. It is not very uncommon for a co-villager to seek assistance from another in his agricultural pursuits. Borrowing of a tractor from a co-villager is a very common feature and, as mentioned above, .Balkar Singh, Bhajan Singh and Gurdip Singh were no strangers to Mohinder Singh as they are closely related to each other in the manner already indicated. Learned counsel has also endeavoured to blunt out the prosecution version for the reason that Kundan Singh and Nirmal Kaur, who were present in the house and had seen the occurrence, as per the prosecution version, were not examined nor any person from the neighbour-hood was examined to lend credence to the version of the injured eye-witnesess and that the prosecution has chosen to prove the offence against the appellants by examining only injured witnesses, who are closely related and naturally interested in the success of the prosecution version. We find no substance in this contention of the learned counsel either. When number of witneses, who are injured and whose presence is proved on records, were available to the prosecution, there was no necessity to examine others, like Kundan Singh and Nirmal Kaur and, it appears, they have rightly been given up as unnecessary. Further, even if they were to be examined, being closely related, they would have only supported the prosecution version. There was no need to examine any neighbour as well, when injuried witnesses, as many as four, were available. This contention of the learned counsel is thus, rejected.
15. The next contention of the learned counsel is that there is considerable delay in lodging the FIR and this delay was utilised by the prosecution in coining story by ascribing respective weapon to various accused and ascribing them injuries to the deceased or the injured in the manner as has been narrated above. It is being argued that if the deceased and injured had reached the hospital immediately after the occurrence, where the police had also reached, there was absolutely no hitch in reporting the matter and getting an F.I.R. registered. It may be recalled that the FIR came to be recorded at 1.10 p.m. on June 12, 1990. We find no substance in this contention of the learned counsel as well. The facts reveal that the ocurrence took place at 6-6.30 a.m. on June 12, 1990 and statement of Mohinder Singh, P. W. 3, was recorded by Prakash Singh Inspector at 1.00 PM on June 12, 1990 and the special report was also handed over to the concerned Magistrate at Gurdaspur, which is stated to be more than 10 kms. from the place where occurrence took place, at 2.15 p.m. on June 12, 1990 itself. This was a case where one person had died and four were injured, one of them seriously. Obviously, first anxiety of all concerned was to treat the injured and see if there was some chance by which Gurdip Singh might survive. That apart, the police obtained opinion of the doctor concerned by making an application as to whether Mohinder Singh was fit to make statement and the: doctor had opined that he was fit to make statement, on June 12, 1990 at 12 noon. It is so mentioned in Ex.PG. Although, some of the witnesses have stated: that Kundan Singh arid Nirmal Kaur were there in the Civil Hospital but the Investigating Officer has clearly stated hat he had not found these two persons' there in the hospital and had met them only by noon on June 12, 1990.
16. The next contention of learned counsel is that in any case the presence of Kashmir Singh at the scene of occurrence is highly doubtful as in the FIR it is clearly recorded that Kashmir Singh had given a gandasi blow from its reverse side near the left wrist of Mohinder Singh whereas no incised wound was found on his person. This version was changed by the first informant as also other witnesses, who to had stated before the police likewise when they appeared in the Court. They were duly confronted with their statemments recorded under Section 161, Cr.P.C. We find no force in this contenion as well. It is a case where one person died and four persons received multiple injuries. There could be a mistake in ascribing the role of one of the assailants, as is owned by all the witnesses when they appeared in the Court.
17. The last contention of the learned counsel that there was no common object to kill Gurdip Singh and, therefore, the provisions contained in Section 149, IPC could not possibly be attracted, in the facts of this case, in our view, is the only contention which has considerable force. It shall be seen from the facts of the case that Balkar Singh, Bhajan Singh and Gurdip Singh incidentally came to the house of first informant to borrow a tractor, of which the appellants could not have any knowledge. It has come in evidence that the house of first informant is located in entirely different direction than that of the appellants. It is, thus, not a case where the appellants might have seen these three i.e. Balkar Singh, Bhajan Singh and Gurdip Singh having come to the house of the first informant. There was no previous enmity between the appellants on one side and Balkar Singh, Bhajan Singh and Gurdip Singh on the other. The immediate cause leading to this crime is stated to be an alternation which took place two days prior to the occurrence between the first informant and some of the accused. It is this grudge which, as per the prosecution version, became an immediate cause for the appellants to commit the crime and it is with a view to achieve that object only that the appellants had come to the house of the first informant. Their object could, thus, be to cause injuries to the first informant or at the most to those who resided with him and not to those who had incidentally come there and some how fell victim at the hands of the appellants. The deceased Gurdip Singh sustained only one injury at the hands of Charan Singh. It may be recalled that Charan Singh and Mehanga Singh died during the currency of the trial. Admittedly, no other appellant gave any injury to Gurdip Singh. In these circumstances, can it be definitely said that all the appellans had shared the common object of Charan Singh to cause death of Gurdip Singh? In our considered view the appellants, in the facts and circumstances of this case, cannot be pinned down with that object. It is true that the appellants along with Charan Singh had formed an unlawful assembly but, in our view, the appellants could not be sharing common object of Charan Singh of killing Gurdip Singh nor it can be definitely said that the appellants, who also formed an unlawful assembly with Charan Singh, knew that Charan Singh was likely to cause death of Gurdip Singh. They, of course, had formed an unlawful assembly to assault the first informant and others but in this case the death caused is of Gurdip Singh by Charan Singh wheras grievous injury was found on the person of Bhajan Singh, who too had gone to the house of first informant along with Balkar Singh and Gurdip Singh to borrow a tractor. In Allaudin Mian and Ors. v. State of Bihar, AIR 1989 SC 1456 : (1989 Cri LJ 1466) the Supreme Court held that at page 1474 of Cri LJ :-
In order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed. This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the ofence or offences committed by their associate or associates in carrying out the common object of the assembly. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. Therefore, any offence committed by a member of an unlwaful assembly in prosecution of anyone or more of the five objects mentioned in Section 141 will render his companions constituting the unlawful assembly liable for that offence with the aid of Section 149. It is not the intention of the legislature in enacting Section 149 to render every member of an unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to invoke Section 149 it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object they would be liable for the same under Section 149.
The facts of the case aforesaid reveal that the common object of the unlawful assembly was to kill the father of the deceased girls and on frustration of that object in consequence of the father who had gone inside the house to fetch a spear, having been prevented from coming out of the house, two of the accused killed the deceased. It was held that "the other accused could not be punished for the acts of killing for accomplishing the common object it was not necessary to kill the two girls who were not hindrance to accused in question from accomplishing their common object.
18. In Lala Ram v. State of Madhya Pradesh, AIR 1994 SC 1452 : (1994 Cri LJ 123), the Apex Court held non-applicability of Section 149 IPC when the evidence on records was to the effect that the accused were interested in taking back Smt. Shanti, who was wife of one of the accused but unfortunately there was a scuffle and during that scuffle one of the accused intentionally shot at the deceased. The Supreme Court held that "from this, we find it difficult to hold that others also had common object to cause the death of the deceased. Having gone through the evidence carefully, we are of the view that the common object of the unlawful assembly was only to take away Smt. Shanti, if necessary, by force". Mr. Mehtab Singh, learned Deputy Advocate General, Punjab, has, however; cited a judgment of the Supreme Court in Bhajan Singh v. State of Uttar Pradesh, AIR 1974 SC 1564 : (1974 Cri LJ 1029). The facts of the said case reveal that Chain Singh and Baldeo Singh were sons of Bhajan Singh whereas Gurbachan Singh was son of Jagat Singh. The deceased in the said case was . Bakhsheesh Singh, who was the brother of Major Singh and a cousion of Bhajan Singh. Major Singh had purchased some land in their village from one Sohan Singh and Gurbachan Singh was in unlawful possession of the same over 15-16 biggas. There was litigation between Gurbachan Singh and Major Singh in respect of this land. Gurbachan Singh subsequently sold his entire land including the disputed area to Bhajan Singh and thereafter Major Singh and his father Ujjagar Singh asked Bhajan Singh to give up possession over the land purchased by Major Singh and on the day before the occurrence suggested to him that they should go to the patwari and settle the matter to which Bhajan Singh agreed. On September 17, 1964 at about 11.30 a.m. Bakhsheesh started on a cycle for the house of the Patwari with papers in connection with the disputed land. He was followed on foot by his father Ujjagar Singh and brother Major Singh. When Baksheesh Singh has hardly gone at a distance of 20-25 paces, from his house, the five appellants accosted him. Baldeo Singh was armed with a spear and Gurbachan Singh with a gandasa and the three other appellants were armed with lathis. Baksheesh Singh got down from the cycle and Bhajan Singh caught hold of him and incited the other appellants to beat him. Bakhsheesh Singh requested the appellants to accompany him to the Patwari to settle the dispute, but Jagat Singh said that they would settle it on the spot. Baldeo Singh then gave a spear blow to Bakhsheesh Singh, Gurbachan Singh gave him a gandasa blow on the head and Chain Singh beat him with his lathi. Thereafter, the appellants ran away.... Bakhsheesh Singh was injured in the abdomen and his intestines came out. The injury was bandaged with the turbans of the deceased and Ujjagar Singh and he was taken to the Police Station where an FIR was lodged by Major Singh. The police sent him to the hospital where he was medically examined. He died on the next day. On the facts aforesaid, it was held that "from the commencement of the interception of the complaint party by the accused armed with deadly weapons and first accosting of the deceased with the challenging posture upto the running away of the accused together after causing fatal injuries on the deceased, there was no escape from the conclusion that all the accused came and worked with one design and object and they were definitely in the know of the fatal consequences that actually ensued as a result of the conjoint attack to make them all vicariously responsible under Section 149 IPC". It was further held that "even assuming that the unlawful assembly was formed orginally only to beat, it was clearly established in the evidence that the said object well knit with what followed as the dangerous finale of the beating. It was not a case where something foreign or unknown to the object took place all of a sudden. It was the execution of the same common object which assumed the fearful character implicit in the illegal action undertaken by the accused." After going through the facts of the case aforesaid, we are convinced that the law enunciated therein is not at all applicable to the facts of the present case. In the case in hand, as mentioned above, the appellants were not in the know of presence of other persons at the house of Mohinder Singh when they had come there armed, as mentioned above. It is just a coincidence that Gurdip Singh, Bhajan Singh and Balkar Singh were present in connection with their demand of borrowing a tractor from Mohinder Singh or his family members. There was absolutely no enmity or any previous back-ground for the appellants to settle some score with them. It is also not a case where the accused might have made Mohinder Singh or his family members a subject matter of attack that these people, who had come there to borrow a tractor, might have intervened and with a view to achieve the design of beating or killing Mohinder Singh and his family members, the intervenor might have been killed. It is also not a case where prior in point of time i.e. before the attack was opened, some body might have shouted that Mohinder Singh or his family members should be finished and that any one, who might come to rescue him/them, shall also not be spared. Such words, of course, have been introduced but almost at the end when the injuries had been given by all the appellants to the deceased and Baldev Singh, Balkar Singh, Bhajan Singh and Mohinder Singh and by that time Gurdip Singh had already fallen down on receipt of injuries caused to him by Charan Singh. It is, thus, not a case where the co-accused of Charan Singh and Bachan Singh can be held guilty with the aid of Section 149 of the Indian Penal Code for either causing the death of Gurdip Singh or of causing grievous hurt to Bhajan Singh. Charan Singh was, of course, guilty of causing death of Gurdip Singh but, as mentioned above, he died during the pendency of the trial. The serious injury on the person of Bhajan Singh is attributed to Bachan Singh. Bhajan Singh like Gurdip Singh had gone to the house of the first informant to borrow the tractor. Bachan Singh, thus, alone can be punished under Section 326 IPC. As mentioned above, all other injuries found on the person of the injured were declared to be simple and therefore, the appellants, Mangal Singh, Kashmir Singh, Hardev Singh, Lakhvinder Singh and Beant Singh can be held guilty only under Sections 324/ 323 read with Section 34 IPC.
19. The net result would, thus, be that Charan Singh is held responsible for causing death of Gurdip Singh. As mentioned above, Charan Singh died during the trial and so the charge against him abates. Bachan Singh, however, associated the common intention of his co-accused and therefore, he is also to be held guilty under Section 326/323 read with Section 34 of the Indian Penal Code. Bachan Singh appellant is held guilty under Section 326 IPC and sentenced to undergo RI for three years and to pay a fine of Rs. 1,000/- and in default thereof, to further undergo RI for three months. Other appellants Mangal Singh, Kashmir Singh, Hardev Singh, Lakhvinder Singh and Beant Singh are held guilty under Sections 324/323 read with Section 34 IPC. Bachan Singh is also held guilty under Section 324. read with Section 34 and is separately sentenced to undergo R. I. for two months. He is also held guilty under Section 323 read with Section 34 IPC and is ordered to undergo for a further period of one month. All the sentences of Bachan Singh shall, however, run concurrently. We are told that whereas, Mangal Singh has already undergone R.I. for 20 months, Beant Singh has already undergone R. I. for 17 months. Hardev Singh and Lakhvinder Singh have already undergone RI for 19 months. Kashmir Singh has already undergone R. I. for more than 7 months, We find this sentence to be sufficient in the facts and circumstances of this case. Bachan Singh appellant has undergone RI for 22 months and, therefore, he shall serve the remaining part of the sentence.
20. The appeal is, thus, partly allowed modifying the judgment of the Additional Sessions Judge, Gurdaspur, accordingly.