Punjab-Haryana High Court
Toti Masih vs State Of Punjab on 19 July, 2011
Author: Hemant Gupta
Bench: Hemant Gupta
Crl. Appeal No.134-DB of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: July 19, 2011
Crl. Appeal No.134-DB of 2010
Toti Masih ...Appellant
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
Present: Mr. Ritesh Pandey, Advocate, for the appellant.
Mr. K.D.S.Sidhu, Addl. AG, Punjab, for the respondent-State.
Mr. Vipin Mahajan, Advocate, for the complainant.
1. Whether 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.
Toti Masih son of Shafi Masih is in appeal aggrieved against the judgment of conviction and order of sentence dated 14.05.2008 passed by the learned Additional Sessions Judge, Gurdaspur, whereby the appellant was convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/- for an offence punishable under Section 304 Part I IPC. In default of payment of fine, the appellant was directed to undergo further rigorous imprisonment for a period of two months.
The prosecution case was set in motion on the statement of Avtar Singh, uncle of the deceased Sukhdev Singh made to SI Harbhajan Singh, who has reached Civil Hospital, Gurdaspur on receipt of written Crl. Appeal No.134-DB of 2010 2 information regarding admission of Sukhdev Singh, on 26.09.2004. In his statement (Ex.PG), Avtar Singh stated that he, his brother Dalbir Singh and his elder brother Surjit Singh have got installed a common tube-well in their fields. On 25.09.2005, he along with his nephew Sukhdev Singh son of Dalbir Singh was going towards their tube-well. Sukhdev Singh was going ahead of him. At about 8.00 pm, when they reached at Thati chowk, Toti Masih and his son Bagga Masih were standing there. Toti Masih said to his nephew Sukhdev Singh as to why he has got conducted an excise raid upon them regarding liquor. Upon which, Sukhdev Singh denied having facilitated any raid and said that he is mis-informed. Amarjit Singh, Member Panchayat, whose house is situated near the chowk came out on hearing noises. Toti Masih said to Sukhdev Singh that he shall be taught a lesson for giving information. After saying this, Toti Masih grappled his nephew Sukhdev Singh from backside and in the meantime, Bagga Masih gave a straight dagger blow to Sukhdev Singh in his left flank in his presence and in the presence of Amarjit Singh. Sukhdev Singh suffered injuries and fell down. He and Amarjit Singh raised hue and cry as a result of which both the accused fled away from the spot along with dagger. After arranging vehicle, he and Amarjit Singh removed Sukhdev Singh to Civil Hospital, Gurdaspur for treatment, where he died. He further stated that he and Amarjit Singh have seen the occurrence in the light of electric bulbs, which were glowing outside the shops. On the basis of such statement, ruqa was sent by SI Harbhajan Singh for registration of FIR. On receipt of ruqa, FIR Ex.PG/2 was lodged at about 1.30 am.
After completing inquest proceedings, SI Harbhajan Singh sent the dead body of Sukhdev Singh for post-mortem examination through HC Baldev Raj and Constable Kewal Kumar. He, thereafter, Crl. Appeal No.134-DB of 2010 3 visited the spot at Village Ghot Pokhar and prepared rough site plan Ex.PC with correct marginal notes. After post-mortem examination, HC Baldev Raj handed over clothes of the deceased to SI Harbhajan Singh, which were taken into possession vide memo Ex.PH. On 28.09.2004, the investigations were taken over by SI/SHO Sakattar Singh. Toti Masih and Balkar Masih @ Bagga Masih were arrested on 01.10.2004 by SI/SHO Sakattar Singh. During interrogation on 02.10.2004, Balkar Masih @ Bagga suffered a disclosure statement Ex.PK and in pursuance of such statement, he got recovered a blood stained knife (chhura) (Ex.P-1) from the disclosed place.
On completion of investigation, Toti Masih was made to stand trial, whereas his son Balkar Masih @ Bagga Masih, who was stated to be juvenile, was produced before the Juvenile Justice Board.
To prove the guilt, the prosecution has examined PW-1 Dr. Chetan Nanda, Medical Officer, Civil Hospital, Gurdaspur, who proved the bed head ticket as Ex.PC in respect of Sukhdev Singh, who was admitted in the hospital at about 10.00 pm on 25.09.2004. He also proved Ex.PA i.e. information sent to the police regarding admission of Sukhdev Singh. He deposed that the death of the patient occurred on 25.09.2004 at about 11.00 pm and that inadvertently the date has been mentioned as 26.09.2004. PW-2 is Dr. Jagjiwan Lal, who conducted post-mortem examination on the dead body of Sukhdev Singh at about 10.25 am on 26.09.2004. He proved the post mortem report as Ex.PD. In his opinion, the cause of death was injury to the vital blood vessels i.e. left external illiac artery leading to haemorrhage and shock, which was sufficient to cause death in ordinary course of nature. In his cross-examination, he Crl. Appeal No.134-DB of 2010 4 stated that injury on the person of deceased Sukhdev Singh was such that he could have survived if proper timely treatment is given. He denied the suggestion that the injury suffered by the deceased could not be caused by Chhura (Ex.P1).
Apart from examining the medical evidence as well as other formal witnesses, the prosecution has also examined PW-3 Avtar Singh, uncle of the deceased & author of FIR; as well as PW-4 Amarjit Singh, a neighbourer in front of whose house the occurrence has taken place.
After going through the evidence on record, the learned trial Court convicted and sentenced the appellant Toti Masih, as mentioned above.
Before this Court, learned counsel for the appellant has vehemently argued that the prosecution evidence is not reliable and trustworthy. PW-3 Avtar Singh is interested witness, whose testimony cannot be relied upon and when there is no motive to cause death of Sukhdev Singh. It is argued that PW-4 Amarjit Singh is a stock witness and his testimony cannot be relied upon. It is argued that from the testimony of PW-2 Dr. Jagjiwan Lal, it transpires that the deceased lost his life on account of lack of proper treatment, therefore, the appellant cannot be held guilty for causing death of deceased Sukhdev Singh. It is also argued that there was no common intention to even inflict injuries on the person of the deceased, as it appears that the knife blow was inflicted all of a sudden without any premeditated mind at the spur of the moment. Thus, the conviction of the appellant for an offence punishable under Section 304 Part I IPC is not maintainable.
Crl. Appeal No.134-DB of 2010 5
In respect of the argument that the cause of death was due to lack of treatment, therefore, the appellant cannot be held guilt for an offence punishable under Section 304 Part I IPC is not correct. As per the prosecution witnesses i.e. PW-3 Avtar Singh and PW-4 Amarjit Singh, the occurrence has taken place at about 8.00 pm on 25.09.2004. The deceased was admitted to Civil Hospital, Gurdaspur at about 10.00 pm, which is evident from bed head ticket Ex.PC. There is endorsement vide which the condition of the patient was explained to the relatives at about 10.15 pm. Such endorsement was signed by PW-3 Avtar Singh, uncle of the deceased. The illiterate relatives of the deceased have taken Sukhdev Singh to the hospital. There was no negligence on the part of the attendants in removing the patient to the hospital. There is no evidence that there was any negligence in treating the deceased. The statement that if proper treatment is given the deceased could have been saved is based upon ifs and buts. There is no intervening factor, which can be the cause of death. The injuries were direct and proximate cause of death. Therefore, the argument that the injuries are not the cause of death is not sustainable.
PW-3 Avtar Singh is uncle of the deceased. He is the one, who has taken the deceased Sukhdev Singh to the hospital soon after the occurrence. His presence is proved by the endorsement on bed head ticket Ex.PC. The FIR is lodged by PW-3 Avtar Singh and he was at police station after the death of his nephew Sukhdev Singh at 11.00 pm. Such conduct of the witness cannot be said to be improbable or untruthful, which may create doubt on the prosecution story.
Crl. Appeal No.134-DB of 2010 6
PW-4 Amarjit Singh has his house near the Thati chowk, which is 15-20 ft. from the place of occurrence. A person living at such a distance shall hear the commotion in the chowk. His presence is, thus, cannot be disputed. He is the person, who has taken Sukhdev Singh in an injured condition to the Civil Hospital, Gurdaspur alongwith PW-3 Avtar Singh. He has been cross-examined at length and it could not be found that his statement in any way is incorrect or untruthful. Keeping in view the eye-witnesses account deposed by PW-3 Avtar Singh and PW-4 Amarjit Singh, the manner of occurrence stands proved. Though PW-3 Avtar Singh has improved his statement that there was exhortation by the appellant to Balkar Masih @ Bagga Masih to give a knife blow to the deceased, as against the first version given to the police in the statement Ex.PG, but such improvement does not affect the prosecution case. Both the witnesses have deposed that the appellant caught hold of the deceased from behind. Such act of cataching the deceased was not with the motive to protect him, but only to facilitate the knife blow on the person of the deceased. There is no reason as to why the appellant should caught hold of the deceased from behind except that such caught hold was with intention to facilitate the inflicting of injuries by knife on the person of the deceased. Therefore, common intention in causing injury likely to cause death with a knife cannot be said to be unbelievable.
The argument that there was no common intention, as there is no evidence of meeting of mind before the occurrence is not tenable. PW- 3 Avtar Singh has disclosed the reason of grudge i.e. a belief in the mind of the appellant that it is Sukhdev Singh, who has disclosed their activity of producing illegal liquor. Since the parties are residents of same village, they could encounter each other at any time, therefore, the son of the Crl. Appeal No.134-DB of 2010 7 appellant was armed with a knife. It cannot be said that the appellant was not aware of such knife in possession of his son, as it is he who caught hold of the deceased to facilitate the knife blow on the person of the deceased. Therefore, the appellant had the knowledge that his son is possessed of a knife and that both the appellants share the common intention to cause such an injury, which is likely to cause death.
Therefore, we do not find any patent illegality in the order passed by the learned trial Court convicting the appellant for an offence punishable under Section 304 Part I IPC. But keeping in view the role attributed to the appellant and the fact that his son, who has given fatal blow is a juvenile, we find that the order of sentence i.e. rigorous imprisonment for life imposed upon the appellant is harsh. In view of the said fact, while maintaining conviction for an offence punishable under Section 304 Part I IPC, we modify the sentence imposed upon the appellant to that of rigorous imprisonment for a period of 10 years and to pay a fine of Rs.5000/-. In default of payment of fine, the defaulter shall undergo further rigorous imprisonment for a period of two months.
With the said modification in the order of sentence, the present appeal stands disposed of.
(HEMANT GUPTA)
JUDGE
19.07.2011 (VIJENDER SINGH MALIK)
Vimal JUDGE