Punjab-Haryana High Court
Sikander Singh Alias Lambu vs State Of Punjab on 17 August, 2010
Author: Ashutosh Mohunta
Bench: Ashutosh Mohunta
Crl. Appeal No. 38-DB of 2002 [ 1 ]
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Crl. Appeal No. 38-DB of 2002
Date of Decision: Aug. 17, 2010
Sikander Singh alias Lambu ................................... Appellant
Versus
State of Punjab ....................................................... Respondent
Coram: Hon'ble Mr.Justice Ashutosh Mohunta
Hon'ble Mr. Justice Nawab Singh
Present: Mr. Gurinder Singh Lalli, Advocate
for the appellant.
Mr. Sandeep Moudgil, DAG, Punjab.
...
ASHUTOSH MOHUNTA, J.
The appellant Sikander Singh alias Lambu has filed this appeal challenging the judgment of conviction and order of sentence dated 14.9.2001 passed by the Additional Sessions Judge, Patiala, vide which he was convicted for the offences punishable under Section 302 and 323 IPC and was sentenced to undergo imprisonment for life under Section 302 IPC and to pay a fine of Rs.5,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year and was also sentenced to rigorous imprisonment for one year under Section 323 IPC and to pay a fine of Rs.1,000/-, in default of which to further undergo rigorous imprisonment for one month.
Crl. Appeal No. 38-DB of 2002 [ 2 ] FIR ( Ex.PG/4) in this case was registered on the basis of statement of Sanju (PW6) son of Babu Singh. As per the statement of Sanju, on 9.10.1999 he was coming to his house from the office of truck union and when he reached near the shop of one Bal Krishan, situated near his house, at about 9:00 PM he met the accused Sikander Singh alias Lambu. One Pardeep was also accompanying Lambu. He asked Lambu to return Rs.100/- which he borrowed from the complainant about 1-1/2 months ago. Lambu refused to return the amount and told him that he would not pay him any thing. Thereafter, Lambu caught hold of the complainant. In the meantime, one Amarjit Singh also came on the spot and he also caught hold of the complainant from his hair. The complainant raised an alarm which attracted his mother Premo and brother Ravi Kumar at the spot. Some other passersby also collected there. In the meantime, Sikander Singh alias Lambu went to his house which was nearby and brought a Ghotna (wooden kitchen implement). On reaching the place of occurrence, he inflicted a Ghotna blow on the head of Ravi Kumar, brother of the complainant, who fell down and thereafter Sikander Singh gave another Ghotna blow on the back of Ravi Kumar. As a result of receiving the injuries, Ravi Kumar became unconscious. An alarm was raised by the complainant and other persons upon which the accused along with Pardeep and Amarjit Singh fled away.
The injured Ravi Kumar was taken to Rajindera Hospital, Patiala, where he was medico-legally examined vide MLR Ex.PA and thereafter was referred to PGI, Chandigarh, but he expired on the way on 10.10.1999.
The police came to the hospital and recorded the statement of Sanju on the basis of which formal FIR was recorded.
Crl. Appeal No. 38-DB of 2002 [ 3 ] The accused were arrested by SI Ajmer Singh and during interrogation, accused Sikander Singh disclosed that he had concealed the Ghotna in the bushes near Moti Beer and the same was within his knowledge and he could get it recovered. In pursuance to his disclosure statement (Ex.PO), the Ghotna was recovered. Post-mortem examination was got conducted on the dead body of the deceased Ravi Kumar.
After completion of the investigation, the accused were challaned and charges were framed against them under Sections 302, 323 and 341 IPC. The accused pleaded not guilty and claimed trial.
The prosecution in support of its case examined PW1 Dr. K.G.Goyal, PW2 Dr. Sunita Sharma, PW3 Dr. Sanjay Mahendru, PW4 Dr. S.S.Oberoi, PW5 Dr. Rajinder Parshad, PW6 Sanju, PW7 Prem Devi, PW8 ASI Gurjant Singh, PW9 HC Gurnam Singh, PW10 C-II Naresh Kumar, PW11 SI Ajmer Singh, PW12 Constable Chet Ram, PW13 Indresh Khanna and PW14 Inspector Bhupinder Singh.
The accused in their statement under Section 313 Cr.P.C. stated that they are innocent and have been falsely implicated in this case. They denied their presence at the time of occurrence and stated that the deceased was having some property dispute with his brother Sanju as a result of which both the brothers had a fight in which Ravi Kumar received injuries at the hands of Sanju and died. However, the accused did not examine any witness in their defence.
The trial Court by placing reliance on the statements of Sanju (PW6) and Premo (PW7), who were eye-witness to the occurrence, and also by placing reliance on the post-mortem report (Ex.PD) and the recovery of the Ghotna vide memo Ex.PO/2 from the accused, convicted the accused Crl. Appeal No. 38-DB of 2002 [ 4 ] Sikander Singh alias Lambu under Sections 302 and 323 IPC and sentenced him in the manner as described in the opening paragraph. However, as far as the accused Pardeep and Amarjit Singh were concerned, they were convicted under Section 323 IPC and sentenced to undergo rigorous imprisonment for one year. Both these accused have not preferred any appeal against their conviction.
At the outset, counsel for the accused has submitted that he does not challenge the findings of the trial Court with regard to the conviction of the appellant Sikander Singh. It has, however, been submitted that as the accused did not have any enmity against the deceased Ravi Kumar and as the blow was inflicted only with a wooden Ghotna, therefore, the conviction of the accused under Section 302 IPC be set aside and he be convicted under Section 304 Part-II IPC. Counsel for the appellant has further submitted that the accused has already remained in jail for more than 10 years and, therefore, he be sentenced to a period already undergone by him.
We have gone through the entire case file and find that the case of the prosecution stands fully proved by the statements of Sanju (PW6) and Premo (PW7), who are brother and mother of the deceased respectively. PW6 Sanju has stated that on 9.10.1999 when he demanded Rs.100/- back from the accused, Sikander Singh refused to pay the amount and instead caught hold of him. He was also caught hold by the other two accused Pardeep and Amarjit Singh. On raising an alarm, his mother Premo and brother Ravi Kumar also came there. When they tried to rescue Sanju the accused Sikander Singh ran to his house and brought a Ghotna and struck the same on the head of Ravi Kumar as a result of which he died. The Crl. Appeal No. 38-DB of 2002 [ 5 ] statement of Sanju (PW6) has been fully corroborated by Premo (PW7) who was also an eye-witness to the entire occurrence. She has also given a vivid description about the manner in which injuries were inflicted by the accused with a Ghotna upon the deceased. The testimonies of both these witnesses have not been shaken in any manner.
Apart from the above, the statements of the witnesses stand fully corroborated by the statement of PW4 Dr. S.S. Oberoi, Asstt. Professor, Department of Forensic Medicine, Rajindera Hospital, Patiala, who conducted the post-mortem examination on the dead body of Ravi Kumar and has stated that the fatal injury on the head of the deceased could have been caused by the wooden Ghotna. The case of the prosecution is also fortified by the recovery of the Ghotna vide recovery memo Ex.PO/2 on the basis of a disclosure statement (Ex.PO) made by the accused Sikander Singh.
We are, thus, of the considered opinion that it was the accused Sikander Singh who inflicted the fatal blow on the head of Ravi Kumar which resulted in his death.
Now adverting to the argument raised by the counsel for the appellant that the accused should be convicted under Section 304 Part-II IPC and not under Section 302 IPC, we find that in the present case there was no quarrel between the accused Sikander Singh and Ravi Kumar, deceased. Ravi Kumar had merely come along with his mother and had intervened in order to save his brother Sanju. There was no enmity either between the accused or the deceased. There was neither any premeditation. The accused had inflicted a blow with a Ghotna (wooden kitchen implement). The accused had not come armed with the intention to cause an Crl. Appeal No. 38-DB of 2002 [ 6 ] injury to any person. In order to invoke Exception 4 of Section 300 IPC, it has to be established that the act was committed without premeditation, in a heat of passion upon a sudden quarrel, without the offender's having taken undue advantage or acted in a cruel or unusual manner and the fight must have been with the person killed. In Pappu v. State of Madhya Pradesh 2006 (3) RCR (Criminal) 737 the Apex Court has held that Exception 4 of Section 300 IPC can be invoked if death is caused:-
(i)Without premeditation.
(ii)In a sudden fight.
(iii)Without the offenders having taken undue advantage or acted in a cruel or unusual manner - The expression `undue advantage' means `unfair advantage'.
(iv)Fight must have been with the person killed.
(v)To bring a case within Exception 4 all the ingredients mentioned in it must be found.
(vi)Whether there was sudden quarrel or depends upon each case - Fight occurring in Exception 4 to Section 300 IPC is not defined in the IPC - It takes two to make a fight.
(vii)Heat of passion requires that there must be no time for the passions to cool down.
(viii)A fight is a combat between two and more persons whether with or without weapons.
The facts of the aforesaid case squarely covers the case of the appellant. In the present case, it was a sudden fight without any premeditation and there was no motive or enmity against the deceased.
In view of the above, we partly allow the appeal and set aside Crl. Appeal No. 38-DB of 2002 [ 7 ] the conviction of the appellant under Section 302 IPC and instead convict him under Section 304 Part-II IPC and sentenced him to the period already undergone by him as the appellant has already undergone more than 10 years of imprisonment. The conviction and sentence under Section 323 IPC is, however, maintained. Both the sentences shall run concurrently.
The office is directed to complete all consequential codal formalities forthwith.
( ASHUTOSH MOHUNTA )
JUDGE
17.8.2010 ( NAWAB SINGH )
Rupi JUDGE