Regular Second Appeal No.2290 of 2008 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No.2290 of 2008 Date of Decision: 15.10.2008 Smt. Jaswinder Kaur and Others …Appellants Versus Balbir Singh and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Ashish Grover, Advocate for the appellants. Kanwaljit Singh Ahluwalia, J. The appellants-plaintiffs have instituted a suit for recovery of Rs.2,00,000/- as damages due to negligent act of the respondents- defendants for causing death of her husband Sikander Singh. The case set out in the plaint was that on 7.1.2001 at about 1.00 P.M. her husband Sikander Singh was present along with his two two brothers namely Gursewak Singh and Bhim Singh for doing agricultural work. The defendants namely Balbir Singh and Hamir Singh sons of Banta Singh and Iqbal Singh son of Gurpiar Singh came at the spot armed with spades and started digging the lower pipes of common tube-well. Sikander Singh requested the defendants not to dig out the pipes. On that defendant No.1 Balbir Singh was said to have Regular Second Appeal No.2290 of 2008 2 caused a spade blow on the head of Sikander Singh from the sharp side. When Gursewak Singh and Bhim Singh had intervened to save him, Hamir Singh gave a spade blow on the person of Gursewak Singh on the left side of his head and Iqbal Singh gave spade blow on the person of Bhim Singh which also hit on the head from the sharp side. When Bhim Singh had fallen, Iqbal Singh had given another spade blow which hit on his back from the blunt side. On the noise raised, accused decamped from the spot. Sikander Singh, in injured condition, was taken to Civil Hospital, Maur and thereafter he was referred to D.M.C. Ludhiana and he died in the way. FIR No. 4 dated 7.1.2001 was registered against the defendants. The defendants were tried and were convicted and sentenced by learned Sessions Judge, Bathinda, on 3.3.2003. He further stated that the appeal filed by the defendants had also been dismissed by this Court. It was claimed in the plaint that Sikander Singh was earning Rs.10,000/- per year and therefore, the appellants-plaintiffs being dependent upon him were entitled to compensation. Sikander Singh was statedly of 33 years of age. Written statement to the plaint was filed by the defendants and the following issues were framed:- 1. Whether the plaintiffs are entitled to recover a sum of Rs.2 lacs being damages, as prayed for, if so, to what extent and what rate of interest? OPP 2. Whether the suit is not maintainable in present form? OPD 3. Whether no cause of action has accrued in favour of plaintiffs to file the present suit? OPD Regular Second Appeal No.2290 of 2008 3 4. Whether the plaintiffs have not come to the Court with clean hands and suppressed the material facts? OPD 5. Relief. In evidence, plaintiff examined Dr.Deepak Rai as PW.1 who proved Post Mortem Report Ex.P5 along with pictorial diagram Ex.P6. Medicolegal Reports of Gursewak Singh and Bhim Singh were also proved along with pictorial diagrams, which were exhibited as Ex.P1 to Ex.P4. Plaintiff Jaswinder Kaur appeared as PW.2. Documents i.e. copy of judgment Ex.P7, jamabandies Ex.P8 and Ex.P9 were tendered into evidence and thereafter the evidence was closed. Relying upon the judgment and testimony of Jaswinder Kaur PW.2, learned trial Court i.e. learned Additional Civil Judge (Senior Division), Talwandi Sabo, decreed the suit. Aggrieved against the said judgment and decree, an appeal was filed by the respondents-defendants. Learned Appellate Court below noticed that the injured of the occurrence i.e. Gursewak Singh and Bhim Singh, have not been examined. Admittedly, Jaswinder Kaur PW2 was not present at the spot and had not witnessed the occurrence. The following finding of fact was recorded by learned Appellate Court below:- “....From her statement, it is evidence that Sikander Singh was present in the fields along with Bhim Singh and Gursewak Singh. Defendants came there and inflicted injuries on the person of Sikander Regular Second Appeal No.2290 of 2008 4 Singh, Gursewak Singh and Bhim Singh. Gurdev Singh also reached the spot. Jaswinder Kaur has no where stated that she was present when the occurrence took place and apparently due to this reason she has not been able to tell as to which injury was inflicted by which defendant. A perusal of Ex.P7, copy of judgment in the criminal case, also reveals that Jaswinder Kaur PW.2 was not present at the spot when occurrence took place. Plaintiffs in order to prove their case, were required to examine atleast one eye-witness with regard to the occurrence. However, in the present case plaintiffs have failed to examine any eye-witness of the occurrence. Merely tendering of the judgment whereby defendants were convicted by the Criminal Court, is not enough. Plaintiffs had to independently establish their case in the civil suit. Plaintiffs were required to examine the eye-witness of the occurrence and the non examination of the eye- witness has denied the defendants as opportunity to cross-examine the said witness. Merely tendering of the judgment in the criminal case, is not enough. Judgment passed by the Criminal Court is not binding on the Civil Court. In this view of the matter, learned trial Court erred in decreeing the suit of the plaintiffs, as they had failed to prove their case”. Regular Second Appeal No.2290 of 2008 5 It has been held in B.N.Kashyap v. Emperor AIR (32) 1945 Lahore 23 that both the Civil and Criminal Courts function in different spheres and realm. It was further held that judgments of Courts of justice are as such declared to be relevant by Ss. 40 to 43, Evidence Act, and in case they do not fall within the one or the other of these sections, they will have to be held irrelevant unless they can be brought on record under any other provisions of the Act. A judgment of Criminal Court cannot be binding upon the Civil Court, therefore, it was incumbent upon the plaintiff Jaswinder Kaur to examine the eye witnesses of the occurrence who could vouch-safe the ocular version. I do not find any infirmity or illegality in the finding recorded by learned Appellate Court below. Learned counsel for the appellants, during the course of arguments, has failed to formulate any substantial question of law. He has stated that finding of issue No.1 given by learned Appellate Court is contrary to law and evidence brought on record and is required to be reversed. This question is not sufficient to upset the finding given by learned Appellate Court below. Hence, the present appeal being devoid of merits, is dismissed. (Kanwaljit Singh Ahluwalia) Judge October 15, 2008 “DK”