IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.764-DB of 2007 Date of Decision: 18.11.2009 Surjit Singh and others Appellants Versus State of Punjab Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr.A.P.S.Deol, Senior Advocate with Ms.Manpreet Kaur, Advocate for the appellants in Criminal Appeal No.764-DB of 2007 Mr.B.S.Sidhu, Advocate for the appellants in Criminal Appeal No.883-DB of 2007 Mr.D.S.Brar, Deputy Advocate General, Punjab for the respondent …. Jasbir Singh, J. This order will dispose of Criminal Appeal No.764-DB of 2007 titled as Surjit Singh and others v. State of Punjab, Criminal Appeal No.883-DB of 2007 titled as Jasvir Singh and another v. State of Punjab and Criminal Revision No.2283 of 2007 titled as Dhan Singh v. State of Punjab and others, arising out of the same judgment and order. For facility of reference, facts are being taken from Criminal Appeal No. 764-DB of 2007. Criminal Appeal No.764-DB of 2007 Before start of the arguments, Mr.Deol, Senior Advocate brought it to our notice that one of the appellants in this appeal, namely, Mohinder Singh (A8) had died while in jail. Nobody has moved any application on his behalf to continue with this appeal. Accordingly, as per the provisions of Section 394 Cr.P.C., this appeal qua Mohinder Singh (A8) stands abated. This appeal has been filed by the appellants against judgment and order dated 18.8.2007, vide which, they along with two appellants in Criminal Appeal No.883-DB of 2007, were convicted for commission of offences punishable under Sections 148, 302/ 149 IPC and were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2000/- each with a default clause under Sections 302/149 IPC. They were also sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1000/- each with a default clause under Section 148 IPC. It was allegation against all the appellants in both the appeals that they had caused injuries to one Bagdha Singh on 12.5.2003. Said Bagdha Singh succumbed to the injuries on 13.5.2003 at 8.30 am in Civil Hospital at Gidderbaha. Case of the prosecution, as noted by the trial Court, in paragraph No.2 of the impugned judgment, reads thus:- “the prosecution story is that the FIR in this case was recorded on the basis of statement Ex.PW7/C made by Dhan Singh complainant before SI Prem Kumar on 13.5.2003 wherein it is alleged by him that he is resident of village Chotian and an agriculturist. A case regarding their land is pending in court at Giderbaha with Surjit Singh son of Hari Singh, resident of village Chotian. Yesterday i.e. on 12.5.2003 2 Criminal Appeal No.764-DB of 2007 at about 2.00 P.M. he alongwith his father Bagdha Singh reached in their fields where accused Surjit Singh armed with Gandasi, Gurjant Singh also armed with Gandasi, Lakhwinder Singh armed with Dang, Gurmail Singh also armed with Dang, Jagga Singh armed with Sota, Kala Singh armed with Dang, Jasvir Singh armed with Dang, Jagroop Singh also armed with Dang, Mukhtiar Singh armed with Tangali and Mohinder Singh also armed with Tangali were found standing in their fields. Accused Surjit Singh was harvesting the wheat crop with tractor fitted with Hadama. They prevented them from harvesting the wheat, but to no effect. He and his father requested them that the case was pending in the court and whatever decision shall be given by the court shall be accepted, but accused Surjit Singh raised Lalkara that they be not allowed to go unharmed and obstacle should be removed. In the meantime, accused Gurjant Singh gave blow with Gandasi from its reverse side which hit on the right arm of his father Bagdha Singh. Accused Surjit Singh gave Gandasi blow which hit from its reverse side on the right knee of his father. His father fell down on the ground. While he was lying on the ground, accused Lakhwinder Singh gave two Dang blows which hit father on his back. Accused Gurmail Singh gave Dang blows to his father which hit on his left leg. Accused Jagga Singh gave Sota blow on the back of his father. Accused Kala Singh gave Dang blows which hit in the chest of his father. Accused Jasvir Singh gave Dang blows which also hit in the chest of his father below neck. It is further alleged by 3 Criminal Appeal No.764-DB of 2007 the complainant that Jagroop Singh gave Dang blow which hit on the back side of right lower leg of his father. Accused Mukhtiar Singh gave blow with Tangali on the left wrist of his father. On hearing their hue and cry, his mother Gurdev Kaur and uncle Sarwan Singh reached on the spot who saved them from the accused. All the accused ran away from the spot with ,their respective weapons while raising Lalkaras.” Process of criminal law was set in motion on a statement (Ex.PW7/C), made by Dhan Singh (PW1) son of the deceased, at whose instance, FIR (Ex.PW7/E) was recorded in police station Kot Bhai on 13.5.2003 at 10.50 am. It is case of the prosecution that after the occurrence, deceased Bagdha Singh was removed to Civil Hospital at Gidderbaha by PW1 and Kulwant Singh. It has also come on record that on receipt of intimation (Ex.PW9/B), on 12.5.2003, police official reached the hospital and moved an application to know about fitness of the patient to make a statement. Vide opinion (Ex.PW7/B) Dr.H.N.Singh (PW9) declared the patient unfit to make the statement. Bagdha Singh succumbed to injuries on 13.5.2003, in the morning. As per case of the prosecution, ASI Harjinder Singh met Dhan Singh (PW1) at bus-stand of village Kot Bhai and recorded his statement, whereupon formal FIR was recorded. As per FIR, cause of grudge was existence of civil dispute between the parties. It is necessary to mention here that on admission in the hospital, Bagdha Singh was medico-legally examined by Dr.H.N.Singh, who found 11 injuries on person of the deceased. It was opined that all injuries were caused with a blunt weapon. After registration of FIR, the investigating officer went to the spot, prepared inquest report regarding dead body of Bagdha Singh and sent 4 Criminal Appeal No.764-DB of 2007 it for post-mortem examination, which was conducted by Dr.Surinder Kumar (PW8) on 13.5.2008. Following injuries were found on person of the deceased :- “1. A stitched wound present with swelling on the lower half of left forearm. It was L-shaped. Vertical arm 8 cms in length and horizontal arm 5 cm in length on the frontal aspect of left forearm. Bluish in colour, lower end was 3 cm from the wrist joint line and horizontal arm 10 cm from the wrist joint. On dissection both bones of left fore arm radios and ulna fractured. 2. A stitched wound L shaped on frontal aspect of left thigh. Both limbs of wound were 2 cms in length 29 cm above from the knee joint, bluish in colour, on dissection underlying bones healthy. 3. An abrasion 2 x 1 cm on the lateral aspect of left thigh, 24 cm from the knee join, Scab present on it. 4. Abrasion 4 x 2 cm in the left inframamary region. Scab present. 5. Bluish contusion 16 x 2 cm on the anterior aspect of chest crossing the midline at the level of nipples. 6. Bluish contusion 19 x 3 cm on posterior aspect of trunk crossing the midline, 37 cm below the nape of neck in the midline. 7. Bluish contusion 10 cm x 2 cm on the dorsal aspect of left upper trunk. 0.5 cm above injury No.6 obliquely placed. 5 Criminal Appeal No.764-DB of 2007 8. The posterior aspect of upper trunk contused and bluish in colour. 9. Posterior aspect of right hand, forearm contused bluish in colour. 10. A scabbed abrasion 7 x 2 cm on the frontal aspect of right knee joint. 11. Scabbed abrasion on antero medical aspect of right leg 3 x 0.5 cm, 15 cm below right knee. On dissection of the chest reddish blood clots seen in the subcutaneous tissue of anterior chest wall. Second rib on right side was fractured. Fourth and fifth ribs on left side fractured and the lungs were lacerated (underlying at places.” This witness has also stated that except injuries Nos.1 and 2, all injuries were the result of blunt weapon. It was further stated that as per his opinion, cause of death was due to multiple injuries, which led to hemorrhage and shock. SI Prem Kumar, the investigating officer, then went to the spot, prepared rough site plan of the place of occurrence with correct marginal notes. He also lifted blood stained earth and took it into possession vide recovery memo (Ex.PW7/H). One thrasher standing at the spot was also taken in possession. The accused were arrested thereafter. On disclosure statement made, weapon of offence were recovered from them. One tractor, which was in the ownership of appellants in Criminal Appeal No.883-DB of 2007, was also taken in possession. On completion of investigation, final report was put in Court. All the ten accused were put to face trial, charge sheet was framed against them, which they denied and claimed trial. Prosecution produced 12 6 Criminal Appeal No.764-DB of 2007 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statements of the appellants-accused were recorded under Section 313 Cr.P.C Incriminating material, existing on record, was put to them, which they denied, claimed innocence and false implication. Surjit Singh (A1), in his statement, has taken the following defence:- “PWs are close relations of the deceased and interested in the prosecution. Moreover, they are made up witnesses. So, they have deposed falsely. I am innocent. My father Hari Singh had mortgaged some land with Kirpal Singh but the possession of the land remained with us. After some time my father, my brother Joginder Singh and myself had returned the mortgaged money to the complainant party. A civil suit from our family side is pending in the court at Gidderbaha against the orders of SDM-cum-Collector Gidderbaha dated 28.3.2001. I never caused any injury to Bagda Singh. The story by the prosecution has been concocted and fabricated and so the complainant party has falsely been implicated me in order to blackmale me.” Appellant Nos.2 to 8 also claimed false implication. Other accused claimed that they have falsely been implicated. They also led evidence in defence and produced K.K.Narang (DW1) to prove plaint filed by Surjit Singh (A1) in a civil suit pending against the complainant party. The trial Court on analysis of evidence, convicted and sentenced the appellants, as found mentioned in earlier part of this order. Hence, this appeal. 7 Criminal Appeal No.764-DB of 2007 It is necessary to mention here that a civil suit filed by Surjit Singh (A1) against the complainant party was decided in his favour on 29.9.2008, holding him the owner and in possession of the land, in dispute i.e. where alleged occurrence had taken place. Appellants, by moving an application in this appeal, have made a prayer to allow them to produce that order in additional evidence. After going through contents of this paper book and the judgment mentioned above, we feel that there is no necessity to allow this application for additional evidence. It is not a case, in which, both the parties have suffered injuries and further it is a case of total denial by the appellants. In such a situation, this Court feels that place of occurrence will not be very relevant to decide this appeal. In view of above, there is no necessity to allow the appellants in this appeal to lead any additional evidence. Counsel for the appellants has vehemently contended that the appellants have falsely been implicated in this case. There is a delay in recording the FIR, which the prosecution has failed to explain. The witnesses are closely related to the deceased and there exists no independent corroboration to their testimony, as such, the trial Court was not justified in relying upon their statements. He has further stated that Kulwant Singh, who got the deceased admitted in the hospital, a material witness, was not produced in Court. By stating as above, he argued that presence of Dhan Singh (PW1) at the spot, was not proved on record. Same was the argument regarding Sarwan Singh (PW2). By making reference to the medical evidence on record, it was stated by the counsel that the offence committed by the appellants would not fall within the purview of Section 302 IPC. Two appellants were armed with Gandasi, however, they used their 8 Criminal Appeal No.764-DB of 2007 weapons, from the blunt side. All the appellants have caused injuries on non-vital part of the body, which is a mitigating factor in their favour. Counsel for the appellants in Criminal Appeal No.883-DB of 2007 has argued that none of the alleged eye witnesses has named Jasvir Singh as one of the assailants. He further stated that there was absolutely no motive with the appellants in that appeal, to cause injuries to the deceased. No dispute was pending inter-se the parties. The appellants had only given their tractor and thrasher, to the accused party, for harvesting of their wheat crop and they were falsely implicated in the crime being related to that party. Counsel in both the appeals have prayed that appeals be allowed, judgment and order under challenge be set aside and all the appellants be acquitted of the charges framed against them. Prayer made has vehemently been opposed by Mr.D.S.Brar, Deputy Advocate General, Punjab. He, by making reference to the testimony of the prosecution witnesses, argued that the trial Court was justified in convicting and awarding sentence to the appellants. All the appellants were forcibly harvesting the crop, when objected, they caused 11 injuries to Bagdha Singh, who died thereafter. Attack was pre-planned. He prayed that benefit of minor discrepancies here and there, in the prosecution evidence, be not extended to the appellants. Prayer is for dismissal of the appeals. After hearing counsel for the parties, this Court is of the opinion that so far as participation of A1 to A7 in the alleged crime is concerned, the same is proved on record. In view of facts on record, this Court feels that there was no delay in recording the FIR. Occurrence had taken place at about 2.00 pm on 12.5.2003, Bagdha Singh deceased was seriously injured and at that time, it was concern of the family members to 9 Criminal Appeal No.764-DB of 2007 save his life and not to rush to the police station. PW1 and Kulwant Singh took the deceased to civil hospital at Gidderbaha, where he was provided medical aid. On his admission, intimation was sent to the police station concerned. Police officials immediately reached the hospital. Application was moved to know condition of the injured to make a statement. The patient was declared unfit to make the statement by the doctor concerned. At that time, PW1 had gone to arrange for money and he did not meet the police officials. Police station is situated at a distance. It appears that at night, the family remained busy to make arrangement for treatment of Bagdha Singh, who died at 8.30 in the morning on 13.5.2003. Thereafter, PW1 proceeded to the police station and met the investigating officer at the bus-stand of village Kot Bhai, where police station is situated. Merely because, witnesses are closely related to the deceased, their testimony cannot be discarded. PW1 has given vivid description as to how the injuries were caused by the appellants to the deceased. His version has been authenticated by Sarwan Singh (PW2). Their testimony, coupled with the medical evidence on record, clearly establish that the injuries were caused to the deceased by A1 to A7 on 12.5.2003. It is a case of total denial by the appellants. None out of them had received any injury. Under these circumstances, as to who was in possession of land, where occurrence had taken place, loses all significance. The weapon of offence was also recovered on a disclosure statements made by the appellants. There was also motive with them because A1 had filed a suit against the complainant party in a civil Court, claiming title of the land, in question. As per admitted position, the Civil Court had ordered the parties to maintain status quo regarding possession of the land. Admittedly, wheat crop was being 10 Criminal Appeal No.764-DB of 2007 harvested by the appellants, which might have been objected by Bagdha Singh, upon which, it appears that appellants had caused injuries to him. So far as appellants in Criminal Appeal No.883-DB of 2007 are concerned, neither PW1 nor PW2 have attributed any injury by Jasvir Singh appellant to the deceased. His name was not mentioned by them in Court. PW10 mentioned name of the Hira Singh as one of the assailants but no challan was filed against that person. Similarly, PW2 has also not named Jasvir Singh as one of the assailants. He has rather mentioned one Lakhbir. There is nothing on record to show that Jasvir Singh appellant was also known as Hira Singh or Lakhbir. Both the appellants in this appeal, though related to the appellants in Criminal Appeal No.764-DB of 2007, are not part of their family. Tractor and the machine, which was used for harvesting of the crop, was their ownership. They do not have any dispute regarding land with the complainant party. It appears that they had given machinery for harvesting of the crop without any idea to participate in the alleged crime. One of them was not named by PW1 and PW2 in Court. Second may be driving the tractor at the relevant time and may have been involved because of that. Now, it is to be seen whether offence committed by A1 to A7, in Criminal Appeal No.764-DB of 2007 would fall under the provisions of Section 302 IPC or not. It has come on record that A1 and A2 were armed with gandasi, a heavy weapon, two others were armed with tangali a multi pronged pointed agricultural instrument, which can be used as a weapon and others were armed with sticks. It is evidence of the prosecution that despite being armed with those weapons, none of the assailants made any attempt to cause injuries to the deceased from sharp side or pointed side of the 11 Criminal Appeal No.764-DB of 2007 weapons held by them. Even those weapons were used from the blunt side. PW9 has specifically stated that all the 11 injuries were the result of blunt weapon. PW8 Dr.Surinder Kumar, who had conducted post-mortem on the dead body, has stated that all the injuries, except injury No.1 and 5, were simple in nature. Injury No.1 was fracture of both bones of the left forearm and injury No.5 was fracture of 4th and 5th ribs of left side of the deceased. In his opinion, this witness has not indicated any one injury or the injuries together were sufficient to cause death individually. It was only said that cause of death was due to multiple injuries which led to hemorrhage and shock. Both the witnesses have not stated that anyone injury out of the injuries received by the deceased was sufficient to cause death. It has also come on record that all the injuries were on non-vital part of the body. Despite being armed with sharp edged/ pointed weapons, no incised wound was caused to the deceased. Under these circumstances, this Court feels that offence committed by A1 to A7 would not fall within the purview of Section 302 IPC. A similar matter came up for consideration before their Lordships of the Hon’ble Supreme Court in Bhajan Singh and others v. the State of Punjab, 1978 CAR 330 (SC). In that case also, many injuries were caused to the deceased. Except one injury, all the injuries were on non-vital part of the body. One was fracture of scalp, which was opined by the doctor to be sufficient to cause death. After noting that, their Lordships of the Hon’ble Supreme Court opined as under:- “In the background of the incident, it is clear that due to the anxiety of the accused to harvest the wheat crop the occurrence took place. Taking, into account all the circumstances we find the common object of the unlawful 12 Criminal Appeal No.764-DB of 2007 assembly was to cause a grievous hurt. It has to be considered whether all the accused should be found guilty of an offence under section 302, 149, for the injury caused by one of the members of the unlawful assembly which is found to be sufficient in the ordinary course of nature to cause death. None of the appellants has been specifically charged under section 302 and it is therefore not possible to hold any one of the appellants guilty of causing the injury which is sufficient, in the ordinary course of nature, to cause death. We are also not satisfied from the circumstances that the injury was caused in prosecution of common object of the assembly or that the members of the assembly knew it likely to be caused in prosecution of the common object. On a consideration of all the circumstances we are satisfied that the common object of the unlawful assembly was to cause grievous injury with dangerous weapons, an offence punishable under section 326.” By taking note of the evidence on record, their Lordships converted the conviction and sentence awarded under Section 302/149 IPC to Section 326 IPC read with Section149 IPC. Similarly, in State of Punjab v. Balkar Singh and others, 1998 Supreme Court Cases (Cri) 399, by taking note of a fact that all the injuries were on non-vital part of the body of the deceased, their Lordships of the Hon’ble Supreme Court held that the offence committed would fall within the purview of Section 304 part-II IPC. In that case, it was observed as under:- 13 Criminal Appeal No.764-DB of 2007 “the next question which crops up for considerations:- what offence (s) have they committed. The guidance in that regard is available from the medical evidence. It is plain therefrom that none of the 11 injuries caused on the deceased was by itself sufficient to cause death in the ordinary course of nature and none of those injuries as said before, was inflicted on a vital part of the body. All the same, the cumulative effect of the injuries did bring about the result of the death of the deceased and the accused-respondents could well be ascribed the guilty knowledge that their assault on the deceased could bring them within the grip of Section 304 Part II IPC. We, therefore, instead of restoring the conviction of the Court of Session under Sections 302/149 IPC convict the accused- respondents for offence under Section 304 Part II IPC, for which we sentence them to 5 years’ RI each.” Same is the situation in this case. All the 11 injuries were on non-vital part of body of the deceased. Despite being armed with deadly weapons, those were used from the blunt side. No injury was caused on neck or head of the deceased. Under these circumstances, this Court is of the opinion that offence committed by A1 to A7 in Criminal Appeal No.764-DB of 2007 would fall under the purview of Section 304 part II IPC. Initially, attack was started by Surjit Singh (A1) and Gurjant Singh (A2). It has come on record that Lakhwinder Singh (A3), is a student of LLB and has undergone four years of sentence. Gurmail Singh, Jagga Singh, Jagroop Singh and Mukhtiar Singh (A4 to A7) have already undergone about six years of sentence. 14 Criminal Appeal No.764-DB of 2007 In view of above, we partly allow Criminal Appeal No.764-DB of 2007. Conviction and sentence of appellant Nos.1 to 7 under Section 302 IPC is set aside, however, they are