Crl.A. No.49-DB of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A. No.49-DB of 2002 DATE OF DECISION: August 17, 2010 KOOKA SINGH @ JAGJIT SINGH ...APPELLANT VERSUS STATE OF PUNJAB ...RESPONDENT CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE NAWAB SINGH. PRESENT: MR.A.P.S. DEOL, SR. ADVOCATE WITH MR. DAVINDER BIR SINGH, ADVOCATE FOR THE APPELLANT. MS.MANJARI NEHRU KAUL, ADDL.A.G., PUNJAB. ASHUTOSH MOHUNTA, J. The accused appellant Kooka Singh has filed this appeal impugning the judgment of conviction dated 9.11.2001 and the order of sentence dated 10.11.2001, vide which he was convicted under Section 302 IPC and was sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/- and in default of payment of fine, to further undergo R.I. for 6 months. The FIR in the present case was registered on 19.10.1997, on the statement made by Kulwinder Singh, PW3 before the Police. It was stated that they are two brothers and the name of the elder brother was Bikar Singh. On 18.10.1997, at about 10.00 P.M., he and his cousin Doongar Singh (father’s younger brother’s son) were coming together on Tractor Crl.A. No.49-DB of 2002 -2- Swaraj 855 to their house. When they reached the link road going from Mehraj to Sadhana near cremation ground at about 10.00 P.M. they saw that his brother Bikar Singh was preventing his wife Manjit Kaur from going with Kooka Singh. Bikar Singh tried to catch hold of the arm of his wife telling her not to go with Kooka Singh. Upon this Kooka Singh gave three blows with Takua from the blunt side to Bikar Singh which hit on his forehead and left side of head. On receiving the blows, Bikar Singh fell down. It was stated by the complainant that the entire occurrence was witnessed by them in the lights of the Tractor. They raised alarm ‘don’t kill-don’t kill’ upon which Kooka Singh alongwith Takua and Manjit Kaur ran away from the spot. The motive for the accused to have caused injuries to Bikar Singh was that he was having illicit relations with Manjit Kaur, wife of Bikar Singh. On the day of occurrence, Kooka Singh, accused had gone to the house of Bikar Singh and had picked up Manjit Kaur for satisfying his lust. When he was stopped on the way by Bikar Singh, husband of Manjit Kaur, this enraged the accused who gave three blows from the reverse side of the Takua on the forehead and left side of head of Bikar Singh. On receipt of the blows Bikar Singh fell down. Gurnam Singh was called from his house and he was told the entire occurrence. He was removed to the Civil Hospital, Rampura Phul from where he was further referred to Civil Hospital, Bathinda and ultimately Bikar Singh succumbed to his injuries at 5.00 p.m. on 19.10.1997. The statement of Kulwinder Singh was recorded by the Police at 11.05 a.m. on 19.10.1997, on the basis of which a formal FIR (Ex.PG/1) under Section 302/34 IPC was registered against Kooka Singh and Manjit Crl.A. No.49-DB of 2002 -3- Kaur. During investigation both the accused Kooka Singh and Manjit Kaur were arrested. From the possession of accused Kooka Singh, a Takua was recovered on the basis of his disclosure statement recorded on 26.01.1997. After completing the codal formalities, accused Kooka Singh was charge-sheeted under Section 302 IPC, whereas accused Manjit Kaur was charge-sheeted under Section 302 read with Section 34 IPC. Both the accused pleaded not guilty and claimed trial. The prosecution examined 9 witnesses. Dr.Maninder Singh Brar, Medical Officer, Civil Hospital, Bathinda, PW1 conducted the post mortem examination on the dead body of Bikar Singh on 20.10.1997. According to the Doctor, cause of death was due to shock and haemorrhage as a result injuries which were sufficient o cause death in the ordinary course of nature. Dr.Niranjan Lal Garg, EM.O., Civil Hospital, Bathinda who conducted the medico-legal examination of Bikar Singh was examined as PW2. He stated that the injuries could be caused from the reverse side of Takua. It was further stated by him that all the injuries were from the blunt weapon. The prosecution examined Kulwinder Singh, who was the eye witness to the entire occurrence as PW3. In his deposition, he stated that Manjit Kaur was a woman of loose character and she had illicit relations with accused Kooka Singh. He further stated that on 18.10.1997, at about 10.00 p.m. while he was returning with his cousin Bikar Singh to his village, he saw that deceased Bikar Singh was trying to dissuade Manjit Kaur from going with accused. When Bikar Singh persisted in not allowing his wife to go with the accused, Kooka Singh gave takua blows from the Crl.A. No.49-DB of 2002 -4- reverse side which struck Bikar Singh on the forehead and on the left side of the head, as a result of which Bikar Singh fell down. The injured was removed to the hospital where he ultimately succumbed to his injuries on the next day. He has further stated that the entire occurrence was also witnesses by his cousin Doongar Singh. The prosecution examined Doongar Singh as PW4 who has supported the version given by Kulwinder Singh. Another witness which the prosecution examined was PW7 Laimber Singh who is the son of deceased Bikar Singh and was 11 years of age. He has stated that on the day of occurrence, Kooka Singh had come to their house to take away his mother Manjit Kaur, who told him that her husband stopped her from going out. Thereafter, Kooka Singh took Manjit Kaur alongwith him and Bikar Singh followed them to bring back Manjit Kaur. This witness was cross-examination at length, but no dent in his deposition could be made on behalf of the accused. Apart from the aforementioned witnesses, other formal witnesses including the Investigating Officer were also examined and thereafter the prosecution closed its evidence. The accused denied the allegations made against them. Accused Kooka Singh was examined under Section 313 Cr.P.C. and denied the allegations against him and stated that he has been falsely implicated in this case at the behest of one Gurpreet Singh who had pressurized the complainant party to involve him falsely. In his defence, he examined Gurcharan Singh as DW1. Manjit Kaur in her statement under Section 313 Cr.P.C. also claimed herself to be innocent. She denied the allegations that she had any relations with Kooka Singh and further stated that she has been Crl.A. No.49-DB of 2002 -5- falsely implicated in this case at the behest of her brother-in-law Kulwinder Singh who had strained relations with her. The trial Court on the basis of the evidence led and by taking into consideration the recovery effected, FSL report and the post-mortem report, convicted Kooka Singh under Section 302 IPC for having committed the murder of Bikar Singh, but acquitted Manjit Kaur. Mr.A.P.S.Deol, counsel for the appellant has vehemently contended that both the eye witnesses, i.e. Kulwinder Singh, PW3 and Doongar Singh, PW4 were chance witnesses and there was no occasion for them to be present at the place of occurrence at 10.00 p.m. and hence as their presence is doubtful, the accused is entitled to be acquitted. This argument of the counsel for the appellant is without merit as according to PW3 Kulwinder Singh, he was returning back from the fields alongwith his cousin Doongar Singh who was working as Siri with Gurcharan Singh. This witness has stated that at about 10.00 p.m. when they reached on the Mehraj-Sadhana Link Road, they found that Bikar Singh was trying to dissuade his wife Manjit Kaur from going alongwith Kooka Singh. When Bikar Singh persisted, Kooka Singh got enraged and dealt three takua blows from the reverse side which hit Bikar Singh on his forehead and on the left side of his head, as a result of which Bikar Singh ultimately died on the next day. A perusal of his statement shows that Kulwinder Singh is a resident of Mehraj and therefore, as coming back on the Mehraj-Sadhana road and witnessing the entire occurrence cannot be said to be accidental. He saw the occurrence while returning back from his fields. Similarly, Doongar Singh PW4 who also witnessed the occurrence is a resident of village Mehraj Patti Karan Chaudhary. He has also stated that Crl.A. No.49-DB of 2002 -6- he witnessed the entire occurrence while he was returning alongwith his cousin Kulwinder Singh at 10.00 p.m. Both the eye witnesses are natural witnesses and were returning to their house at the relevant time. It has next been argued that there is an inordinate delay in lodging the FIR. The occurrence is alleged to have taken lace at about 10.00/10.30 p.m. at 18.10.1997, whereas the statement of Kulwinder Singh, PW3 was recorded at 11.05 a.m. on 19.10.1997. It is contended that the delay was utilized to introduce witnesses falsely. This argument of the counsel for the appellant is also without merit as after the occurrence Bikar Singh was removed to Civil Hospital, Rampura Phul at about 3.00 a.m. on 19.10.1997, where he was given first aid and thereafter he was referred to Civil Hospital, Bathinda, where he was medico-legally examined. A perusal of the aforementioned facts shows that some time must have been consumed in removing Bikar Singh, firstly to Civil Hospital, Rampura Phul and therefrom to shift him to Civil Hospital, Bathinda. When Bikar Singh was removed to Civil Hospital, Rampura Phul, a ruqa was sent to the Police and thereafter on receipt of ruqa, ASI Hukam Singh reached the hospital alongwith other Police officials, but he was informed that the injured has been referred to Civil Hospital, Bathinda. From there, he came to Civil Hospital, Bathinda and moved an application (Ex.PF) seeking opinion of the Doctor with regard the fitness of Bikar Singh to which he was declared unfit to make a statement. At the hospital, Kulwinder Singh met him and his statement was recorded by PW8 ASI Hukam Singh, on the basis of which a formal FIR was registered. It is thus clear that no time was lost in informing the Police about the occurrence and hence it cannot be said that there was any delay in lodging the FIR. Thus, from the perusal of the aforementioned Crl.A. No.49-DB of 2002 -7- facts, it is clear that accused Kooka Singh, in order to satisfy his lust, had gone to the house of deceased Bikar Singh, from where he picked up Manjit Kaur. When Bikar Singh (deceased) tried to prevent him from taking away his wife, the accused dealt three takua blows from the reverse side which hit Bikar Singh on the forehead and on the left side of the head, as a result of which he ultimately died. The entire occurrence was witnessed by Kulwinder Singh (PW3), brother of the deceased and by Doongar Singh, PW4, who have given a detailed account of the manner in which the accused killed Bikar Singh. Apart from the above, the recovery of Takua was made on the basis of disclosure statement made by accused Kooka Singh before PW9 SI Amrit Pal who was posted as SI/SHO, P.S. Phul. The accused stated before PW9 that he had concealed a Takua on the back of the room of his tubewell in the field and could get the same recovered. Thereafter he got recovered Takua (Ex.P1) from the disclosed place which was taken into possession. The Takua was sent to the laboratory and as per the FSL report, human blood was detected on the Takua. Furthermore, PW7 Laimber Singh, who is the son of the deceased has also stated that Kooka Singh had come to their house at about 9/10.00 p.m. on 18.10.1997, and at that time he was armed with a Takua. Accused Kooka Singh told his mother Manjit Kaur that she should accompany him and that they would stay during the night at his tubewell. Manjit Kaur told Kooka Singh that her husband has been stopping her from going out, however, Kooka Singh took away Manjit Kaur with him. After some time, his father came to the house and when he was informed that his mother has gone with Kooka Singh, thereafter Bikar Singh went to bring Crl.A. No.49-DB of 2002 -8- back Manjit Kaur. His statement also clearly proves that Kooka Singh was already prepared to take away Manjit Kuar, irrespective of the opposition. Thus, from the aforementioned facts, it is clear that the prosecution has been able to prove that it was Kooka Singh who had committed the murder of Bikar Singh. It has lastly been argued by the counsel for the appellant that even if it is assumed that Kooka Singh has dealt the fatal blows upon the deceased, still the accused can only be convicted and sentenced under Section 304-I or Section 304-II IPC and not under Section 302 IPC. It has been contended by the learned counsel that although Kooka Singh was armed with Takua which had a sharp side blade on one side, but yet he struck the deceased from the reverse side of the weapon. It is contended that this clearly shows that accused had no intention to kill Bikar Singh. Learned counsel has further submitted that the occurrence took place all of a sudden, because Bikar Singh tried to stop the accused from taking away his wife and hence, in the absence of any intention on the part of the accused to kill Bikar Singh, he could be convicted and sentenced under Section 304-I or Section 304-II IPC. In support of his argument, learned counsel for the appellant has placed reliance on a judgement in Hardev Bhanji Joshi vs. State of Gujarat, reported as 1992 Supreme Court Cases (Crl.) 842, wherein the sharp edge of the axe was not used and the entire incident happened in a sudden manner. The Apex Court set aside the conviction of the appellant under Section 302 IPC and sentenced him to imprisonment under Section 304-II IPC. We have given our thoughtful consideration to the arguments raised by the counsel for the appellant. The statement of Dr.Maninder Crl.A. No.49-DB of 2002 -9- Singh Brar, Medical Officer, Civil Hospital Bathinda (PW1), who conducted the post mortem examination on the dead body of Bikar Singh shows that Bikar Singh suffered the following injuries:- “1. 2.5 cm. stitched wound on later side of fore-heard .5 cm above left eye brow. On dissection clotted blood was present underneath muscle and blood vessels, under it injured and underlying bone fractured. Blood clot was present in cranial cavity. 2. 1.5 cm stitched wound on lateral parital area of skull 5 cm. from upper boarded of left ear. On dissection underlying muscles, blood vessels injured. Clotted blood was present. Underlying bone fractured and blood clot was present in cranial cavity. 3. One cm stitched wound on lateral parital area of skull it is 3 cm posterior to injury No.2. On dissection underlying muscles and blood vessels injured. Clotted blood was present. Under lying bone fractured. Cranial cavity contained blood clots.” A perusal of the aforementioned injuries shows that in all the three injuries, the underlying bones were fractured. There was a fracture on the underlying bone of the skull. The Doctor has opined that small force cannot be used to cause such an injury. From the aforementioned injuries, it is clear that the accused had struck on the head on the deceased with immense force. The bones underlying the seat of injuries were all fractured. The present case is not a case where only one injury was given by the accused, he had struck thrice with takua on the head of the deceased Crl.A. No.49-DB of 2002 -10- which clearly shows that he not only had the knowledge that the injuries which he is causing are likely to cause death of the person being struck, but the accused also had the intention to commit the murder of Bikar Singh. Thus, the facts of the present case are entirely different from that of Hardev Bhanji Joshi’s case (supra). Therefore, this argument of the counsel for the appellant that the accused should be convicted and sentenced under Section 304-I or 304-II IPC also cannot be accepted. In view of the aforementioned discussion, we are of the considered opinion that the prosecution has proved its case that it was appellant Kooka Singh who had committed the murder of Bikar Singh by inflicting three blows with a Takua from its reverse side. He has rightly been convicted and sentenced under Section 302 IPC. Resultantly, the appeal filed by the accused-appellant is dismissed. The accused is on bail. His bail bonds are cancelled and he be taken into custody forthwith to serve out the remaining portion of his sentence. (ASHUTOSH MOHUNTA) JUDGE August 17, 2010 (NAWAB SINGH) Gulati JUDGE