RSA No.2938 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2938 of 2011 (O&M) Date of decision 25.7.2011. Jagpal Singh and others ...... Appellants. versus Harjinder Kaur and others ...... Respondents. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. A.S.Cheema, Advocate for the appellants. K.C.PURI . J. This is an appeal directed by defendants/appellants against the judgment and decree dated 5.4.2011 passed by Shri H.P.S.Mahal, District Judge, Mansa vide which the appeal preferred by the defendants/appellant against the judgment and decree dated 22.1.2010 passed by Shri Daljit Singh Ralhan, Additional Civil Judge (Senior Division), Mansa, was dismissed. RSA No.2938 of 2011 2 2. Briefly stated Harjinder Kaur widow, Harmandeep Singh minor son and Surjit Kaur being the mother of Balwinder Singh filed suit for recovery of Rs.4,00,000/- as compensation on account of murder of Balwinder Singh at the hands of defendants/appellant. 3. It is alleged that plaintiffs were the legal heirs of Balwinder Singh. Kapoor Singh son of Sampuran Singh had three brothers namely Gurbachan Singh, Bhura Singh and Hazur Singh. Said Kapoor Singh along with his brothers Gurbachan Singh, Bhura Singh and Hazur Singh purchased land measuring 20 acres of agricultural land from Babu Singh son of Mukhtiar Singh about 28 years back. They were cultivating the land in equal shares. Kapoor Singh had another land adjoining the land of village Chuhrian and he was also in possession of that parcel of land out of the 20 acres of land. Bikker Singh aged 35 years and Balwinder Singh aged 25 years being the sons of Kapoor Singh were cultivating that land. There was a dispute regarding the land. Bikker Singh and Balwinder Singh filed suit in the Court of Civil Judge (Senior Division) Mansa, which was pending. Proceedings under Section 107/151 of the Code of Criminal Procedure were also initiated. On 26.4.2005 Tehsildar Sardulgarh visited the spot in village Chuhrian. The defendants were claiming in possession of 1½ kanals of the land. On the fateful day, Kapoor Singh along with Uttam Singh son of Jang Singh and his sons Bikker Singh and Balwinder Singh went to the fields on a red Swaraj Tractor and before they reached the disputed land, they saw that defendants Jagpal Singh @ Pala armed with 12 bore DBBL gun, Kewal Singh @ Chira and Gursewak Singh both sons of Bhura Singh were armed with gandasas, Bhura Singh was armed with sota. RSA No.2938 of 2011 3 Darshan Singh son of Gurdial Singh was armed with kukri (Axe). Jarnail Singh son of Partap Singh armed with Soti (stick), who is father-in-law of Jagpal Singh defendant were standing there. After parking the tractor, Kapoor Singh, Bikker Singh, Balwinder Singh and their relative Uttam Singh went near the bridge of canal minor of Kusla and were going towards their fields on foot. Balwinder Singh took kahi (spade) from the tractor and was going towards their fields through back passage. It was at about 11.30a.m. Jagpal Singh defendant raised a lalkara that Bikker Singh etc. be taught a lesson for ploughing the land. Then Jagpal Singh fired from his 12 bore gun hitting the chest on left side of Balwinder Singh, as a result of which he fell down and his Kahi (spade) also fell down nearby him. Kewal Singh defendant picked up that Kahi then all the defendants started chasing Bikker Singh and then Bikker Singh ran towards his fields. Kewal Singh defendant then raised lalkara that Bikker Singh also should be done to death. Then all the defendants encircled Bikker Singh. Jagpal Singh defendant fired another shot hitting Bikker Singh on his right tampel as a result of which Bikker Singh fell down on the ground. Thereafter defendants Kewal Singh armed with Kahi, Darshan Singh armed with his Kulhari, Gursewak Singh with his gandasa, Bhura Singh and Jarnail Singh with their soties, inflicted injuries to Bikker Singh on his head, forehead and abdomen. The occurrence was witnessed by Kapoor Singh and Uttam Singh and both of them raised a lalkara. The defendants fled away with their respective weapons while Kewal Singh threw his kahi at the spot. Balwinder Singh and Bikker Singh succumbed to injuries on the spot. Uttam Singh was left near the dead bodies to guard them and Kapoor Singh RSA No.2938 of 2011 4 went to lodged the FIR. The investigation in the case was completed and ultimately challan was presented. 4. It is further pleaded that Balwinder Singh was youngman of 25 years and he has passed 10+2 examination and appeared in B.A. Part I. He was very healthy and stout. He had 15/16 acres of agricultural land and his earning Rs.12lacs per annum from agriculture produce. Besides this, he was earning Rs.20,000/- per month from Diary farm. He was maintaining a Maruti Car and Bajaj Chetak Scooter. So, amount of Rs.4,00,000/- has been claimed along with 18% interest. 5. Upon notice, defendants No.1 to 3 appeared and contested by filing written statement raising preliminary objections that the plaintiffs have got no cause of action, locus standi and the suit is not maintainable. It has been alleged that the plaintiffs have not provided the valid legal and proper particulars regarding the loss suffered by them due to alleged murder of Balwinder Singh at the hands of the replying defendant. The plaintiff were not dependent upon the earnings of Balwinder Singh, as Balwinder Singh was idle and was habitual of liquors and intoxicants. He was not having any landed property. He had inherited some agricultural land which was also being cultivated by some other persons. The suit of the plaintiff is bad for misjoinder of parties. The suit of the plaintiffs is not properly verified. The plaintiffs have filed the present suit only to make undue and improper harassment to the replying defendants. Other averments of the plaints were denied and prayer for dismissal of the suit is made. 6. Replication was filed, the contents of the written statement were denied and that of the plaint were reiterated. RSA No.2938 of 2011 5 7. From the pleadings of the parties, following issues were framed :- 1. Whether the suit of the plaintiff is not maintainable in the present form ?OPD 2. Whether the suit is bad for misjoinder of necessary parties ? OPD. 3. Whether the defendants are responsible for the death of Bikker Singh and Balwinder Singh sons of Kapoor Singh ? OPP 4. Whether the plaintiffs are entitled to recover Rs.4lacs as damages/compensation ?OPP 5. Relief. 8. In their evidence, Hartjinder Kaur one of the plaintiffs appeared as her own witness and also examined Kapoor Singh (PW-2), C-II Jugraj Singh as (PW-3) and Dr.Shiv Kumar as (PW-4) and closed their evidence. 9. On the other hand defendants examined Jagpal Singh DW-1 and thereafter failed to produce their evidence and their evidence was ultimately closed by order of the Court. 10. The trial Court after hearing the learned counsel for the parties and appraisal of the evidence, decreed the suit of the plaintiff vide judgment and decree dated 22.1.2010. 11. Feeling dissatisfied with the aforesaid judgment and decree dated 22.1.2010, the defendants preferred the appeal before the learned District Judge, Mansa, who after hearing the learned counsel for the parties vide judgment and decree dated 5.4.2011 dismissed the appeal of the defendants. 12. Still feeling dissatisfied with the aforesaid judgments and RSA No.2938 of 2011 6 decrees of the Courts below, the defendants-appellants have preferred the present regular second appeal. 13. The appellants in paragraph No.10 of the grounds of appeal have mentioned that following substantial questions of law have arisen in the present appeal :- (i) Whether the suit for recovery of money for compensation on account of death/murder can be decreed mainly on the ground that defendants have been convicted by the criminal court, further when the appeal is still pending admitted in the Hon'ble High Court ? (ii) Whether the appellant/defendants have not been given proper opportunity of leading the defence evidence ? (iii) Whether the courts below has drawn wrong inference from the proved facts by applying the law erroneously ? (iv) Whether the evidence taken as a whole is not reasonably capable of supporting the findings of the courts below ? 14. The learned counsel for the appellant has submitted that mere fact that the appellant along with other co-accused have been convicted by the Criminal Court is not sufficient to conclude that they have murdered Balwinder Singh and Bikker Singh. The appeal against the conviction is pending, which has been admitted. The Court below have drawn wrong conclusion from the given facts by applying the law erroneously. The evidence produced on the record is not sufficient to prove the fact that the appellant along with other co-accused have murdered Balwinder Singh and Bikker Singh. It is further contended that amount of compensation assessed is on higher side. 15. I have carefully considered the submission made by counsel for the appellants and have gone through the records of the case. RSA No.2938 of 2011 7 16. It is settled law that civil cases are decided on the preponderance of evidence whereas in criminal cases the guilt of the culprit has to be proved beyond doubt. Both Civil and Criminal proceedings are different and each case has to be decided on the evidence available before the Court. In the present case, both the Courts below after appreciating the evidence on file reached to the conclusion that appellants along with other co-accused have murdered Balwinder Singh and Bikker Singh. That being a finding of fact cannot be interfered in the regular second appeal. There is nothing on the file to show that both the Courts below have decided the issues on the basis of judgment of the Criminal Courts convicting the appellants along with his co-accused. Both the Courts below have independently assessed the evidence. There is nothing on the file that defendants were not given full opportunity to lead evidence in support of their averments. Further, there is no material on the record to arrive at the conclusion that both the Courts below have drawn wrong inference and have applied the law erroneously. The evidence led before both the Courts below is sufficient to prove the issue of murder against the defendant/appellant. 17 So far as the quantum of compensation assessed by both the Courts below is concerned that cannot be said to be excessive. The trial Court has taken the income of Balwinder Singh as a labourer and thereafter, after deducting 1/3rd amount, has calculated the dependency to the tune of Rs.2000/-. The annual dependency was rightly concluded as Rs.24,000/-. So, keeping in view the age of Balwinder Singh the amount of compensation assessed by the Courts below cannot be said to be excessive. RSA No.2938 of 2011 8 18. No other point has been urged before me. 19. So, in view of above discussion points for determination mentioned above stand determined against the appellant. 20. In view of the above discussion, the appeal is without any merit and the same stands dismissed. 21. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE July 25, 2011 sv