IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 398-DB of 2001 DATE OF DECISION : 17.03.2010 Bahadur Singh and another .... APPELLANTS Versus State of Punjab ..... RESPONDENT Crl. A. No. 496-DB of 2001 DATE OF DECISION : 17.03.2010 Jasbir Singh @ Jassi .... APPELLANT Versus State of Punjab ..... RESPONDENT Crl. Revn. No. 1911 of 2001 DATE OF DECISION : 17.03.2010 Hari Chand .... PETITIONER Versus Jasbir Singh @ Jassi and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Crl. A. No. 398-DB of 2001 -2- Present: Mr. Malkeet Singh, Advocate, for the appellants (in Crl. A. Nos. 398-DB & 496-DB of 2001) for the respondents (in Crl. Revn. No. 1911 of 2001) Ms. Gurveen H. Singh, Addl. A.G., Punjab. Mr. A.P.S. Deol, Senior Advocate, with Mr. Vishal Rattan, Advocate, for the petitioner (in Crl. Revn. No. 1911 of 2001) * * * SATISH KUMAR MITTAL , J. 1. This judgment shall dispose of Criminal Appeals No. 398-DB (filed by accused Bahadur Singh and Paramjit Singh @ Pappa) and 496-DB of 2001 (filed by accused Jasbir Singh alias Jassi) as well as Criminal Revision No. 1911 of 2001 (filed by complainant Hari Chand for enhancement of sentence), against the judgment and order dated 23.7.2001, passed by the court of Sessions Judge, Patiala, whereby appellant Jasbir Singh alias Jassi has been convicted under Section 302 IPC, whereas appellants Bahadur Singh and Paramjit Singh alias Pappa have been convicted under Section 302 read with section 34 IPC. All the appellants have been sentenced to undergo rigorous imprisonment for life. Appellant Jasbir Singh alias Jassi has been sentenced to pay a fine of Rs. 10,000/- and in default, to undergo further rigorous imprisonment for a period of three months. However, appellants Bahadur Singh and Paramjit Singh alias Pappa have been sentenced to pay a fine of Rs. 5,000/- each and in default, to undergo further rigorous imprisonment for a period of two months. 2. Bahadur Singh and Jasbir Singh alias Jassi are real brothers and Crl. A. No. 398-DB of 2001 -3- Paramjit Singh alias Pappa is their cousion. Bhuro (deceased), aged about 27 years, was the wife of Hari Chand (complainant). The complainant and the accused were residing in village Dappar. The occurrence has taken place on the issue of tethering buffalo in the lane, existing in front of the houses of the parties. 3. In the present case, the FIR under Section 302/34 IPC was registered against the aforesaid three accused, for committing the murder of Bhuro. On the basis of the statement of her husband Hari Chand, which was made by him on 6.4.1998 at 1.30 PM to SI Chhubeg Singh (PW.9) near the turning of ITI, Lalru. In his statement (Ex.PA), Hari Chand stated that they were four brothers and two sisters, out of whom two brothers and two sisters were married. All the four brothers were residing together in village Dappar. He was employed in Punjab Roadways Depot, Chandigarh. On 6.4.1998, it being a public holiday, he was present in his house. At about 7.30 AM, he was sitting in his Chobara (a room on first floor). His wife Bhuro and brother's wife Babli were washing clothes inside the house. Then Jasbir Singh alias Jassi accused came in front of his house, where buffalo of the complainant were tied, as usual. Jasbir Singh alias Jassi started abusing the complainant side and was saying that in spite of repeated requests made by him, they (complainant side) did not stop to tether buffalo in the street. He untied the chain of their buffalo. On this, Bhuro went in the street and prevented Jasbir Singh alias Jassi from doing so, who gave a slap to her and said that he will finish all the disputes today for ever. After saying so, he Crl. A. No. 398-DB of 2001 -4- went back to his house and called his brother Bahadur Singh. They were saying that the complainant side should be taught a lesson. Then they entered in the house of the complainant. His wife Bhuro was coming towards him. Then Jasbir Singh alias Jassi, who was armed with Dang, and Bahadur Singh, who was armed with a cricket bat, came running behind his wife. In the meantime, on hearing the lalkara raised by Jasbir Singh alias Jassi, Paramjit Singh alias Pappa armed with Lathi also came there from his house. Then they surrounded Bhuro, who was about to board the stairs. When she tried to turn back due to fear, then Bahadur Singh exhorted Jasbir Singh alias Jassi to teach lesson to her, upon which Jasbir Singh gave Lathi blow on her head from the front side with both hands by full force. On receiving the said blow, Bhuro fell with face downwards. Then he (complainant Hari Chand) raised alarm saying “Maarta Maarta”. After that, all the three accused started brick-bating to his wife and his brother's wife Babli. They continued raising lalkaras. In the meantime, his brother Dalbir Singh and Mahabir Singh came there on hearing the noise. Then all the three accused ran away with their respective weapons. After arranging the vehicle, the complainant took Bhuro to Civil Hospital, Lalru, where doctor declared her dead. After leaving his brother Dalbir Singh with the dead body, he along with Sarpanch Labh Singh was going to the Police Station, but the police met them near the turning of ITI, Lalru and recorded his statement. 4. It has come in evidence that the police got the information Crl. A. No. 398-DB of 2001 -5- about the dead body lying in the Hospital on 6.4.1998 at 10 AM. At that time, SI Chhubeg Singh was present in Patiala for official work. After receiving the information, he immediately proceeded for Civil Hospital, Lalru. In the way, when he was near the turning of ITI, Lalru, the complainant met him and got recorded the aforesaid statement at 1.30 PM, on the basis of which the formal FIR (Ex.PA/2) was registered against the accused at 2.35 PM. Special report was delivered to the Magistrate at 5 PM. After recording the statement and registration of the FIR, the police reached the Hospital, prepared the inquest report (Ex.PJ) and the dead body was sent for post mortem examination. Thereafter, the police visited the place of occurrence and prepared the rough site plan (Ex.PK). Blood stained earth was lifted from the spot. Some pieces of broken cemented ventilator, lying in the room, were also taken into possession vide recovery memo Ex.PC. 5. On 7.4.1998 at about 10.10 AM, Dr. Sham Singh, conducted autopsy of the deceased and he found the following one injury on his body: A lacerated wound 6.5 cm x 2.0 cm bone deep present on left fronto parietal region of skull starting from hair line, 6 cm above the left eye brow extending upward and medially lower end of the wound was `Y' shape. Underlying bone was depressed. Bleeding from the nose was present. On opening of the scalp, a large haematoma 8 cm x 5 cm was found on the fronto parietal region. It was found that there was fracture of left parietal bone extending to frontal bone and cribri-form plate. In the opinion of the Doctor, the cause of death was due to haemorrhage and shock as a result of Crl. A. No. 398-DB of 2001 -6- head injury i.e. fracture of frontal and parietal bone and haematoma, extra dural and intra-dural, which was sufficient to cause death in ordinary course of nature. 6. On 9.4.1998, all the three accused were arrested. On 13.4.1998, during interrogation, Jasbir Singh alias Jassi accused made disclosure statement (Ex.PO) to the effect that he had kept concealed the Lathi in the bushes near the bank of Charan Nadi of which only he had the knowledge and he could got the same recovered. Similarly, Bahadur Singh and Paramjit Singh alias Pappa accused also made separate disclosure statements (Ex.PP and Ex.PQ) regarding the concealing of cricket bat and Lathi, respectively. Thereafter, in pursuance of their respective disclosure statements, Jasbir Singh alias Jassi, Bahadur Singh and Paramjit Singh alias Pappa accused got recovered Lathi, cricket bat and Lathi, which were taken into possession vide recovery memos Ex.PR, Ex.PS and Ex.PT, respectively. 7. After completion of investigation, the challan was filed and charges under Sections 302/34 and 506 IPC were framed against the accused, to which they did not plead guilty and claimed trial. 8. In support of its case, the prosecution examined 10 witnesses, besides placing on record certain documents. 9. PW.1 C. Balbir Singh, who had accompanied SI Chhubeg Singh on 6.4.1998, has proved statement (Ex.PA) made by the complainant, on the basis of which formal FIR (Ex.PA/2) was registered. PW.2 C. Tarlok Singh proved recovery memo Ex.PB, vide which clothes worn by deceased Crl. A. No. 398-DB of 2001 -7- Bhuro i.e. salwar, kamij, four bangles green colour, four bangles of red colour and 8 silver bangles were taken into possession. PW.3 ASI Sadhu Ram is the witness to the recovery of some stones/brick bats and broken wire gauge of a ventilator/cemented Jali vide recovery memo Ex.PC and blood stained earth vide memo Ex.PD. PW.4 MHC Raghbir Singh and PW.5 C. Mohinder Ram are the formal witnesses, who tendered their affidavits Ex.PE and Ex.PF, respectively. PW.6 Dr. Sham Singh, Medical Officer, who conducted post-mortem examination on the dead body of Bhuro and proved the post mortem report Ex.PG. 10. PW.7 Hari Chand (complainant) and PW.8 Babli, the eye witnesses, have supported the prosecution version, though in the cross- examination it was admitted by them that prior to the day of occurrence, there was no dispute between the accused and the complainant party. It has also been admitted that the occurrence was over within 3-4 minutes. It has also been admitted that Jasbir Singh alias Jassi accused had given only one Dang blow and one or two slaps to Bhuro (deceased). However, all the accused threw brick bats, but the same did not hit any one of them and it only damaged cemented ventilator. 11. PW.9 SI Chhubeg Singh, the Investigating Officer, also supported the prosecution version and has also proved the arrest of the accused and recovery of two Dangs from the accused and cricket bat from the spot. In the cross-examination, he has stated that the house of Paramjit Singh accused is at a distance of one or two streets from the house of Bhuro. Crl. A. No. 398-DB of 2001 -8- He also admitted that there was only one wooden peg in the street near the house of Bhuro and the said street was 17/18 feet wide. He also stated that he does not know if the parties had quarreled earlier also over tethering of cattle. A suggestion was put to both the eye witnesses as well as the Investigating Officer that Bhuro received the fatal injury in a family dispute, which had taken place on 5.4.1998, due to which she has died and all the accused were falsely implicated. PW.10 Swaran Singh, Draftsman, proved the scaled map (Ex.PU). 12. In their statements under Section 313 Cr.P.C., all the accused denied the incriminating evidence appearing against them and took the plea that there was a family dispute between Hari Chand complainant and his brothers about the partition of their property. Hari Chand and his wife had refused to give share in the property to his younger brothers. On 5.4.1998, in the night, a quarrel had taken place between the family, in which Bhuro was given beating by younger brothers of Hari Chand and their wives. In that fight, Bhuro sustained head injury and being a neighbourer, Jasbir Singh alias Jassi went to Police Station Lalru in the morning of 6.4.1998 and informed the police that a quarrel was going on in the family of Hari Chand. In the meantime, Bahadur Singh and Paramjit Singh accused also reached police station and they were falsely implicated in the instant case, because the police was having enmity with them with regard to a criminal case got registered by Paramjit Singh accused against the police officials for committing the murder of his younger brother. In defence, the accused did Crl. A. No. 398-DB of 2001 -9- not lead any evidence. 13. After considering the evidence on record, the trial court convicted and sentenced all the three accused, as mentioned in earlier part of the judgment. 14. Learned counsel for the appellants argued that there was a considerable delay in lodging the FIR. The incident is alleged to have taken place on 6.4.1998 at 7.30 AM. The information about the death of Bhuro was sent by the hospital authorities to the police, but in spite of that, statement of Hari Chand was recorded at 1.30 PM and formal FIR was registered at 2.35 PM. The special report was delivered to the Ilaqa Magistrate at 5 PM. Therefore, there was a delay of about 7 hours in lodging the FIR against the accused. According to the learned counsel, the police who was inimical towards the accused, took the benefit of the said delay and registered the instant case by concocting a version in connivance with the complainant, and implicated three persons of a family. Learned counsel argued that the participation of the accused, particularly Bahadur Singh and Paramjit Singh, in the alleged occurrence, is highly doubtful. Even as per the prosecution version, both these accused did not cause any injury to any person. He further argued that the only role attributed to Bahadur Singh is that he raised lalkara and exhorted Jasbir Singh alias Jassi to teach lesson to Bhuro. So far as Paramjit Singh is concerned, he had come on the scene subsequently and according to the prosecution, he blocked the way of Bhuro and Jasbir Singh had caused injury to her. Though it has been alleged that Crl. A. No. 398-DB of 2001 -10- after giving Lathi blow to the deceased, all the accused remained present on the spot and threw brick bats towards the complainant and eye witness Babli, but it is admitted position that no injury was caused to any one of them or to any family member of the complainant. Learned counsel further argued that the alleged occurrence has taken place suddenly on a small issue of tethering buffalo and in that occurrence, only Jasbir Singh had given one Lathi blow to Bhuro, when she was fighting with him. According to the learned counsel, the alleged occurrence has taken place suddenly without any premeditation or without any common intention of the accused to cause death of Bhuro or to cause such bodily injury, which resulted into her death. Learned counsel argued that in the instant case, the prosecution has miserably failed to prove the common intention of all the accused to cause death of Bhuro or to cause any bodily injury to her, which could cause death. Bahadur Singh and Paramjit Singh accused did not cause any injury to the deceased or to any other person. They even did not attempt to give any injury to the deceased. In these circumstances, conviction of these two accused persons for the offence under Section 302 read with Section 34 IPC for causing the death of Bhuro is not sustainable at all. It has come in the evidence that the house of Paramjit Singh accused is situated at a distance in different Mohalla, but as per the prosecution version, he also came on the scene, on hearing the lalkara of Jasbir Singh, which was not possible. This fact also indicates that the accused have been falsely implicated by the complainant by taking the benefit of delay in lodging the FIR. Crl. A. No. 398-DB of 2001 -11- 15. Regarding Jasbir Singh, learned counsel argued that in a sudden fight on the issue of tethering cattle, in a heat of passion and without any premeditation, he gave a single Lathi blow on the head of the deceased, without any intention to kill her, therefore, his case squarely falls under Exception 4 of Section 300 IPC. Since the culpable homicide committed by him does not amount to murder, therefore, at the most, he is liable to be punished under Section 304 IPC. In this regard, learned counsel argued that undisputedly, prior to the day of occurrence, there was no dispute between the parties on any issue, including the issue of tethering cattle and there was no motive for the accused to cause death of Bhuro. Only one injury was given by Jasbir Singh, due to which Bhuro has died and only in the morning of the day of occurrence, when Jasbir Singh accused was objecting to the tethering of cattle in the street, the occurrence had taken place in a sudden quarrel on the said issue. Therefore, conviction of Jasbir Singh under Section 302 IPC is not sustainable and at the most, he could have been convicted and punished for the offence under Section 304 IPC. 16. On the other hand, learned counsel for the respondent-State argued that the prosecution has fully proved that all the three accused were having common intention to kill Bhuro and to cause such bodily injury, which was likely to cause her death in the ordinary course of nature. They actively participated in the occurrence. Even if there was no previous enmity between the parties, their conduct and action at the spot clearly indicates that all of them were having a common intention to cause death of Crl. A. No. 398-DB of 2001 -12- Bhuro, therefore, the trial court has rightly convicted Bahadur Singh and Paramjit Singh with the aid of Section 34 IPC. Learned counsel further argued that conviction of Jasbir Singh under Section 302 IPC is also fully justified, because his case does not fall under Exception 4 of Section 300 IPC. According to the learned counsel, all the ingredients of Exception 4 are not existing in the present case, therefore, Jasbir Singh cannot be given the benefit of Exception 4 of Section 300 IPC, particularly while causing a lathi blow with full force on the head of a female, who was empty hand, Jasbir Singh had taken undue advantage of the situation, therefore, there is no illegality or impropriety in the judgment of conviction passed by the trial court. 17. Learned counsel for the complainant, while arguing in Crl. Revn. No. 1911 of 2001, submits that the fine imposed by the trial court be enhanced. 18. In this case, on a small issue of tethering the buffalo in the street, death of a young woman, aged about 27 years, was caused by her neighbourer. As per the medical evidence, there was only one incised wound injury on the head of the deceased, due to which she has died. In the opinion of Dr. Sham Singh (PW.6), the cause of death was due to haemorrohage and shock as a result of head injury i.e. fracture of the frontal and parietal bone and haemotoma, extra dural and intra dural which was sufficient to cause death in the ordinary course of nature. According to complainant Hari Chand (PW.7) and Babli (PW.8), the eye witnesses of the Crl. A. No. 398-DB of 2001 -13- occurrence, the said injury was caused to Bhuro by Jasbir Singh with Dang. As per the version given by these two eye witnesses, on the day of occurrence, Jasbir Singh accused came in front of their house and saw the buffalo tied in the street in front of their house. He started abusing them in filthy language and also untied the chain of the buffalo from its peg. Then Bhuro, who was washing the clothes along with PW Babli in the house, came out in the lane/street and stopped Jasbir Singh from doing so. Then he slapped her on her face and remarked that he will stop daily bickering. While abusing the complainant party and so proclaiming loudly, he went back to his house and came back with his brother Bahadur Singh. They were armed with a Dang and a cricket bat. When Bhuro in order to save herself tried to go upstairs towards her husband (complainant), who was witnessing the whole occurrence from the Chobara, she was stopped by Paramjit Singh accused, who was armed with Dang and by that time had also come at the place of occurrence, on hearing the lalkara of Jasbir Singh. When Bhuro turned back, Bahadur Singh asked his brother Jasbir Singh not to wait and exhorted him to finish the job. Thereafter, Jasbir Singh gave Dang blow with full force with his both hands on the head of Bhuro, on which she collapsed. 19. From the aforesaid version, it is clear that only Jasbir Singh caused one injury with his Dang to Bhuro, which proved to be fatal and due to which she had died. As far as Bahadur Singh and Paramjit Singh are concerned, they did not cause any injury. Only lalkara has been attributed to Crl. A. No. 398-DB of 2001 -14- Bahadur Singh. Paramjit Singh is alleged to have stopped Bhuro, when she was going back to her home on seeing the angry mood of the other accused. Though both the witnesses have stated that after giving the fatal blow to the deceased, all the three accused remained on the spot for some time. It was also alleged that they threw the brick bats towards the complainant and his family members. After coming of Dalbir Singh and Mahabir Singh (who have not been examined by the prosecution), the accused ran away from the spot with their respective weapons. But it is admitted case of the prosecution that no injury was caused either to the complainant or to PW Babli or to any other family member of the complainant. It has also been admitted by both the eye witnesses that prior to the alleged occurrence, there was no altercation or dispute between the accused and the complainant party. 20. In view of the aforesaid facts, it has to be considered as to whether the version given by these two eye witnesses with regard to the occurrence is truthful and reliable. It is the contention of learned counsel for the appellants that by taking the benefit of delay in lodging the FIR, a false story has been concocted by the police in connivance with the complainant party, in which three members of the family have been falsely implicated. In order to ascertain the reliability and trustworthiness of the eye witnesses, the court is to adhere two principles; (i) whether in the circumstances of a case, it was possible for the eye witnesses to be present on the scene; and (ii) whether there was any thing improbable or unreliable in his testimony. As Crl. A. No. 398-DB of 2001 -15- far as the presence of both the eye witnesses at 7.30 AM in their house is concerned, the same cannot be doubted. Even no such suggestion has been put to them by the defence counsel. Regarding the improbability and unreliability in their version, there are certain factors, which create slight doubt with regard to presence of Paramjit Singh on the spot and the role attributed to Bahadur Singh. It has come in the statement of SI Chhubeg Singh (PW.9) that the house of Paramjit Singh is at the distance of one or two streets from the house of Bhuro. He is cousin of the other two accused, namely Jasbir Singh and Bahadur Singh and he was residing separately with the other accused. As per the version given by the eye witnesses, Paramjit Singh came on the scene at a later stage, on hearing the lalkara of Jasbir Singh accused. In our opinion, it is highly improbable that a person, who is residing at a distance in a separate house, will be attracted at the spot on hearing the lalkara. It is admitted case of the prosecution that Paramjit Singh did not cause any injury either