N Criminal Appeal No 715of 1981
WITH Criminal Appeal No 716 of 1981
From the judgment and order dated 1551981 of the Punjab and Haryana High Court in Criminal Appeal No 419DB of 1980
UR Lalit AN Mulla SK Sabharwal and OK Khullar for the Appellants
IS Goyal for the Respondent
The Judgment of the court was delivered by PUNCHHI J
These two appeals are directed against the judgment and order of May 151981 passed by a Division Bench of the Punjab and Haryana High Court in Criminal Appeal No 419 DB of 1981
589 The appellants are three in number 
They are Wazir Singh his nephew Darbara Singh and share cropperseeriDalip Singh
These three together with Mohin der Singh the brother of Wazir Singh  and father of Darbara Singh as also one Avtar Singh Wazir Singh s father in law s brother stood trial before the sessions Judge Bhiwa ni for offences under sections 148 302149 and 323149 IPCfor having caused the murder of Sadha Singh paternal cousin of Wazir Singh and Mohinder Singh accused as also to have caused simple hurts to Ranjit Singh PW4 sister s son of the deceased
The learned Sessions Judge acquitted Avtar Singh taking the view that since the Investigating Officer could not recover the gun the weapon of offence from him in spite of interrogation his name had been introduced by the prosecution in order to complete the alleged unlawful asemblyconvenient and handy as it was because of relation ship with deceased
Avtar Singh was attributed no part in the actual occurrence except exhortations
The remaining four accused were convicted under sections 30234 and 32334 IPC and were sentenced to life imprisonment and six months rigorous imprisonment respectively
In appeal the High Court acquitted Mohinder Singh accused taking the view that though he was stated to have used his kirpan with force the medical evidence did not corroborate this version because DR
BM Kapur PW 2 who performed the autopsy of the deceased opined that the injuries which apparently were kirpan injuries could only be caused by the tip of the kirpan suggesting that much force had not been used
The High Court then went on to agree with the opinion of Dr Kapur to say that all the incised wounds on the deceased could have been caused by Kulhari exhibit
This Kulhari was suggested to have been used by Wazir Singh appellant towards commission of the crime
On that premise the High Court let off Mohinder singh recording the opinion that his participa tion was doubtful
For lack of coroboration of medical evidence the High Court also observed that it was quite probable that like Avtar Singh acquitted co assused Mohin der Singh accused too had been brought in as an accused
As a result the three apellants remained convicted and sen tenced
So they are here before us
Criminal Appeal No714 of 1981 was preferred by Ranjit Singh complainant against acquitted co accused Mohinder Singh but this appeal was dismissed by us on 8 4 1992 for non prosecution because learned counsel for that appellant stated that he had no instructions
So Mohinder Singh re mained acquitted
590 The occurrence took palce on November 101979 at 1230 PM in the open fields of Village Kikral
Deceased Sadha Singh was present in his fields taking out grass while deceased s nephew Ranjit Singh PW4 was present ploughing the de ceased s field
close by in their own fields were Jagir Singh PW5 and Malkiat Singh PW6
At that juncture Mohin der Singh acquitted co accused armed with a sword Wazir Singh armed with a kulhari Darbara Singh and Dalip Singh armed with lathis each and Avtar Singh acquitted co accused armed with a gun came together towards the deceased and opened assault on him
Wazir Singh apellant started and gave a kulhari blow on the head of the deceased whereas Mohinder Singh acquitted co accused gave injuries by kirpan
Dalip Singh and Darbara Singh appellants inflicted lathi blows Avtar Singh acquitted co accused raised exhortations
When Ranjit Singh PW interfered he was given lathi blows by Dalip Singh and Darbara Singh appellants
Jagir Singh and Malkiat Singh PWs
who saw the occurrence came running to the place and found Sadha Singh lying injured seriously
Sadha Singh and Ranjit Singh victims were brought by Jagir Singh and Malkiat Singh PWs
in injured condition to Rural Dispensary Siwani which is at a distance of 5 kilometers from the place of occurrence
Dr Ram Krishan PW3 Incharge of the Dispensary after examining and giving first aid to Sadha Singh advised him to be taken to Civil Hospital Bhiwani as his condition was serious
Ranjit Singh PW however was admited in the Rural Dispensary Siwani Siwani police was informed about the arrival of both the them
Sadha Singh was taken to Civil Hospital Bhiwani where he was found dead
Dr Gambhir PW 1 sent message to the police station informing the Bhiwani police about the arriv al of the dead body
Sub Inspector Sadhu Sing PW 12 on the basis of message of Dr Ram Kishan PW 3 went to Rural Dispensary Siwani where he recorded the statement of Ranjit Singh PW4 at 415 pm
First Information Report on the basis of the said statement was recorded at the police station at 530pm
The special report reached the Magis trate at Bhiwani on 11 11 1979
Now about the motive
The grand father of sadha singh deceased had four sons chanan Singh  Bishan Singh Kishan Singh and Makhan Singh
The eye witnesses Malkiat Singh and jagir Singh are the sons of Chanan Singh
Sadha Singh de ceased was the son of Bishan Singh
Mohinder Singh acquitted co accused and Wazir Singh appellant are sons of Kishan Singh
Makhan Singh the fourth son was married to Harnam Kaur but had not made issue
It appears that Makhan Singh on September 591 201975 executed an agreement to sell his lands in some proportions to the three families of his brothers but Mohinder Singh acquitted co accused wanted to purchase all the land of Makhan Singh
The agreement ultimately did not materialise
Thereafter there is history of acrimony and illwill between the parties itching to obtain the land of Makhan Singh
Besides Wazir Singh appellant got lodged FIR against Sadha Singh deceased in may 1977 accusing him of an attack and of having stolen away his motor cycle
such were the strained relations which provided the motive of the crime
The post mortem of Sadha Singh deceased performed by Dr BM Kapur PW2 revealed 13 injuries on his body
the first one was an incised wound 2x12 over the left side of the forehead on dissection of which it was found to be a fracture of the frontal bone
There was also extra dural haemotoma and fracture of the skull on the left side
The other injuries were either incised wounds or blunt weapon injuries
They were on non vital parts of the body
There were however compound and diverse fractures of both bones of both the legs as well as that of both the arms
The cause of death then opined by Dr Kapur was due to shock and haemorrhage on account of multiple injuries which was sufficient to cause death in the ordinary course of nature
At the trial however Dr Kapur went on to add that injury No1 could individully be sufficient in the ordinary course of nature to cause death
He also opined that injuries other than injury NO1 collectively were sufficient to cause death in the ordinary course of nature even if one were to exclude injury No1
Dr Kapur further opined that all the incised wounds could be caused by kulhari P1
Dr Ram Kishan PW3 on examination found Ranjit Singh having five injuries on his person which were simple in nature and were caused by a blunt weapon
Four of them were contusions which were size able and one was an abrasion
During the investigations the weapons of the offence were recovered by the investigating officer at the instance of recovery statements made by the accused persons respec tively
The entire bundle of evidence was produced before the Court of sessions which led to the result above indicated
Learned counsel for the appellants individually as well as collectively at the first instance pressed into service reasons for the acquittal of Avtar Singh and Mohinder Singh 592 co accused to contend that the prosecution case has been discredited by the courts below rendering it unacceptable
Highlighting this aspect it was contended that the complain ant party apparently had spread their net wide and had dragged in Avtar Singh acquitted co accused just in order to lay charge of unlawful assembly and Mohinder Singh co accused to share the incised injuries when those injuries could have been caused by one weapon like kulhari exhibit
On that basis it was asserted that PWs having told lies the entire prosecution case deserved throwing out
Beside it was urged that the evidence regarding recovery of weapons did not inspire confidence
These arguments even though attrac tive do not appeal to us
There may be a tendency here and there to implicate a person in addition to actual assailants in a crime but substitution is rare and that cannot be the case here
As is evident the parties are closely related
The crime was committed in broad day light
Ranjit Singh is a stamped witness
There was no reason for the prosecution to falsely evolve a case against the appellants
Now here there are two types of injuries on the deceased being in cised wounds and blunt weapon injuries totalling 13 in number
This is suggestive of at least two assailants re spectively armed with suitable weapons
to be responsible for these injuries
But when these seven blunt weapon in juries of the deceased are added to five blunt weapon in juries of Ranjit Singh PW and the extensive damage caused seen it becomes evident that there were more than one assailant inflicting blunt weapon injuries
Thus there were three assailants as is evident from the result
Besides shortly before the occurrence Ranjit Singh PW was plough ing the field and it is expected of a ploughman to be carry ing a stick
The very fact that he did not claim to have used any goes to confirm that he was a victim of two assail ants who could use their blunt weapons against him as well as against the deceased
The medical evidence is thus con sistent and corroborative in connecting all the three appel lants that is in Wazir Singh having used his kulhari and Dalip Singh and Darbara Singh having used their lathis in the commission of the crime
On the eye witness account and the corroboration it receives from medical evidence their guilt is established even if the evidence of recovery of weapons is kept aside
We have thus no reason to question the ultimate result arrived at by the High Court though we have our doubts about the reasoning employed by it to acquit Mohinder Singh co accused
The next point urged was with regard to nature of the offence committed by the appellants
We notice that out of 13 injuries on the dead body of Sadha Singh six were in cised wounds and the remaining were blunt 593 weapon injuries
Amongst the incised wounds the first one above described was by itself sufficient in the ordinary course of nature to cause death of the deceased
That injury was positively attributed to Wazir Singh appellant who opened the attack but the remaining five incised wounds were not positively attributed to Wazir Singh appellant alone
It can safely be assumed that some may have fallen in his share to be inflicted and others to Mohinder Singh co accused who has since been acquitted
Even though Dr BM Kapur has stated that all the incised wounds could have been caused by kulhar p1 but that by itself cannot go on to conclude that all the incised wounds were caused by Wazir Singh appellant
Distinguishing the role assigned to Wazir Singh in this manner we take the view that on the infliction of the first incised wound on the head of the deceased which was suffi cient by itself in the ordinary course of nature to cause death and death did ensue Wazir Singh appellant has ren dered himself liable to be adjudged guilty under section 302 IPC Dr BM Kapur has further opined that leaving aside injury No1 injuries nos2 to 13 were collectively sufficient to cause death in the ordinary course of nature
In this collection we have five incised wounds and seven blunt weapon injuries
The blunt weapon injuries are frac tures of bones of both the arms and legs
Even though some of those blunt weapon injuries are extensive and grievious in nature because of the fracture of bones of the left fore arm right fore arm elbow left leg and right leg these by themselves cannot in the facts and circumstances of this case be said to have been inflicted by the assailants other than Wazir Singh appellant with the intention of causing death or in ratification of the act of Wazir Singh appellant
But since extensive damage had been done to the limbs of Sadha Singh after the infliction of vital injury No1 it can safely by inferred that despite the assailant s choosing non vital parts of the body for inflicting those injuries they must be attributed the knowledge that by their concerted act they were likely to cause death of the decease for which act they could be punishable under sec tion 304 part II of the Indian Penal Code
The act was done while sadha Singh was alive
The outcome of injury No1 may or may not have been perceived by assailants other than Wazir Singh but they were satisfied in choosing and inflict ing injuries on non vital parts of the body of Sadha Singh Which injuries were breaking bones of his arms and legs
We have leaned towards this view also for the reason that Darbara 594 Singh due to his young age being in teens may have acted under the influence of his paternal uncle Wazir Singh appellant and though he shared the common intention of causing extensive injuries to deceased Sadha Singh and injuries to Ranjit Singh PW he may not have shared the common intention of causing the former s death but can definitely be attributed the knowledge that by his concerted act Sadha Singh could die
Similarly Dalip Singh a share cropper of his employer Wazir singh and Mohinder singh perhaps had acted under the influence of his employers but cannot in these facts be said to be a co participant in intentionally causing the death of Sadha Singh
He too must be attributed the knowledge that by his act in concert with others he was likely to cause to death of the deceased
It is worth reminding that neither of the two accused Darbara Singh and Dalip Singh are attributed any injury on any vital part of the body of the deceased
Thus on the above analysis Darbara Singh and Dalip Singh appellants are held guilty for offence under section 304 IPC read with Section 34 IPC
Resultantly we alter the conviction of Wazir Singh appellant to a plain one under section 302 IPC and maintain his life sentence
His conviction and sentence under section 32334 is also sustained
The convictions of Darbara Singh and Dalip Singh appellants are altered to one under section 304 IPC read with section 34 IPC for which sentence of seven years rigorous imprisonment is imposed on each of them
The appeals stand disposed of accordingly
GN Appeals disposed of


Summary:
The first respondent a defeated candidate riled an election petition before the High Court for a declaration that the election of the appellant was void and that he himself had been duly elected
Since the notice could not be served on the appellant and some other respondents in the ordinary course it was published in a vernacular daily newspaper as directed by the High Court fixing the date of appearance of the respondents therein
The appellant appeared before the High Court on the date of publication of the notice and sought time for filing the written
statement and after doing so submitted a recrimination notice under Section 97 of the Representation of People Act 1951
Along with the recrimination notice he flied an application under Section 5 of the requesting the High Court to condone the delay in filing the same since the appellant had given notice beyond the period of 14 days from the date of commencement of trial prescribed under the proviso to Section 971
The High Court held that Section 5 of the was not applicable to a recrimination notice
Aggrieved the appellant riled the appeal by special leave before this Court
It was contended that by virtue of Section 292 of the  all the provisions contained in sections 4 to 24 both inclusive of the Act applied to the proceedings under the Representation of the People Act 1951 including the recrimination notice under Section 97
314 Dismissing the appeal this Court HELD  11
There is no provision in the Representation of People act 1951 making all or any of the provisions of the placable to the proceedings under the Act
318A 12
The Act equates a recrimination notice to an election petition
The language of Section 97 makes the said fact abundantly clear
It provides that returned candidates or any other party may give evidence to prove that the election of such candidate would have been void If he had been the returned candidate and a petition had been presented calling in question his election
The proviso to sub section 1 applies the provisions of Sections 117 and 118 to such a recrimination notice
For non compliance with the requirement of Section 117 an election petition is liable to be dismissed by virtue of sub section 1 of Section 86
Sub section 2 of Section 97 further provides that the notice referred to in sub section 1 should be accompanied by the statement and particulars as required by Section 83 in the case of an election petition and should be signed and verified in like manner
319C E 13
The proviso to sub section 1 of Section 97 which requires such a notice to be given to the High Court within 14 days of the date fixed for the respondents to appear before the High Court to answer the claim or claims reading the definition of commencement of trial  into it has also a particular meaning and object behind it
The idea is that the recrimination notice if any should be filed at the earliest possible time so that both the election petition and the recrimination notice are tried at the same time
319F The recrimination notice is thus comparable to an election petition
If Section 5 of the does not apply to the filing of an election petition it does not equally apply to the filing of the recrimination notice
319G HN Yadav vs LN Misra   relied on
Shukla vs Khubchand Baghel and Ors 1964 6 SCR 129 distinguished
Bhogilal Pandya vs Maharawal Laxman Singh AIR  Bhakti Bh
Mondal vs Hhagendra K Bandhopandhya 1968 Calcutta 315 69 overruled