Crl.Appeal No.1126-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.1126-SB of 1999 Date of Decision:25.02.2010 Pritam Singh and another .....Appellants Versus State of Punjab .....Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Argued by: Mr.Jainainder Saini, Advocate, for the appellants. Mr.Ajaib Singh, Additional Advocate General, Punjab, for the respondent-State. **** MEHINDER SINGH SULLAR, J.(Oral) Assailing the impugned judgment of conviction and order of sentence dated 15.11.1999, appellants convicts-Pritam Singh and Lakhwinder Singh sons of Amar Singh have directed the present appeal, whereby appellant-Pritam Singh was convicted and sentenced to undergo rigorous imprisonment for a period of four years, to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of four months, for the commission of offence punishable under Section 307 IPC, whereas appellant-Lakhwinder Singh was convicted and sentenced in the same terms and manner under Section 307 read with Section 34 IPC by the trial Judge. 2. Shorn off unnecessary details, the prosecution version, unfolded during the trial, is that complainant-PW1 Baldev Raj was running a Karyana Shop at Harchowal Road Qadian, while appellant-Pritam Singh was also running music(Tape-Recorder and Television) shop in the same vicinity. It was on 13.03.1996 at about 5.00 P.M., complainant-PW1 was Crl.Appeal No.1126-SB of 1999 2 present at his shop along with one Laddi son of Bahadur. Appellant- Lakhwinder Singh was present in the shop of his brother appellant-Pritam Singh. PW1 asked Laddi son of Bahadur to go to the music shop and asked appellant-Lakhwinder Singh to play a cassette of his choice on the Tape- Recorder but appellant-Lakhwinder Singh refused to oblige him. As a result of which, some altercation took place between them. In the evening, both the parties closed their shops and went to their respective houses. 3. The case of the prosecution further proceeds that on 14.03.1996 at about 9.30 A.M., PW1-Baldev Raj came and opened his shop. His uncles PW2-Gurmit Singh and Pritam Singh also reached there. Having opened his shop, as soon as, PW1 went to the tea stall (Halwai Shop) of Parkash for serving tea to his uncles, in the meantime, appellant-Pritam Singh wearing a small size 'kirpan'(Gatra) and appellant-Lakhwinder Singh empty handed came there. Lakhwinder Singh raised a 'lalkara' that he(PW1) should be taught a lesson for hurling abuses on him on the previous day. Thereafter, PW1 and appellant-Lakhwinder Singh grappled with each other and appellant-Pritam Singh gave a 'kirpan' (Gatra) blow on the left side of abdomen of PW1. As a consequence of which, he(PW1) felled on the ground. In the wake of noise/alarm raised by PW2-Gurmit Singh and Pritam Singh-PW, the appellants decamped from the spot. PW1 was removed in an injured condition to Civil hospital, Qadian, from where he was referred to Civil Hospital, Amritsar, and medico legally examined by PW5 vide MLR(Ex.PM). After receipt of wireless message with regard to admission of PW1 in the hospital, PW4-SI Hardev Singh went to the hospital and moved an application(Ex.PC) on which the doctor opined that the injured was unfit to make the statement. On 15.03.1996, he(PW4) again went to the hospital and moved another application(Ex.PD), whereupon the doctor vide his opinion(Ex.PD/1) declared the injured fit to make the statement. Thereafter, he recorded the statement(Ex.PA) of PW1, who thumb-marked the same in token of its correctness. PW4 made endorsement on it and sent the same to the police station for registration of the case, which formed the basis of formal FIR(Ex.PA/1). 4. Levelling a variety of allegations in all, according to the prosecution, that on 14.03.1996 at about 9.30 A.M., the appellants attempted to murder PW1-Baldev Raj in furtherance of their common Crl.Appeal No.1126-SB of 1999 3 intention. On the basis of aforesaid allegations, the present case was registered against them vide FIR No.46 dated 15.03.1996(Ex.PA/1), on accusation of having committed the offence punishable under Sections 307 and 307/34 IPC by the police of Police Station Qadian, District Gurdaspur, in the manner indicated here-in-above. 5. After the completion of the investigation, final police report/challan was submitted against the appellants to face trial for the aforesaid offences. Since, the case was triable by the court of Sessions, so, it was committed for trial by the Judicial Magistrate Ist Class, Batala, vide his commitment order dated 11.06.1996. Consequently, they appeared before the court of Sessions in pursuance of commitment of the case. 6. Having completed all the codal formalities, the trial Judge framed the substantive charges under Section 307 IPC against appellant- Pritam Singh and under Section 307/34 IPC against appellant-Lakhwinder Singh vide order dated 14.08.1996. As they did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution. 7. The prosecution in order to substantiate the charges framed against the appellants examined PW1 complainant-Baldev Raj, who has deposed in the following manner:- “About nine months back I was present on my shop situated at Harchowal Road, Qadian. At about, 9.00 A.M., Gurmit Singh and Pritam Singh were passing in front of my shop. I called them. I went to bring tea for them. Lakhwinder Singh alias Lakha raised lalkara that he be caught. Pritam Singh was also accompanied Lakhwinder Singh alias Lakha. Upon this Pritam Singh gave kirpan(gatra) and that hit on the left side of my abdomen. Then I was removed to Hospital by Gurmit Singh and Pritam Singh. I do not know to which Hospital I was taken as I had become unconscious. On the next day, Thanedar came when I was in Guru Nanak Dev Hospital, Amritsar. My statement was recorded. It was read over and explained to me and I thumb marked it after admitting it to be correct. My statement is Ex.PA”. Crl.Appeal No.1126-SB of 1999 4 8. Sequelly, PW2-Gurmit Singh has stated that on the fateful day, he along with his elder brother were present at the shop of their nephew PW1-Baldev Raj. He offered them tea. When PW1 went to the nearby shop for taking tea, both the accused were present near the tea shop. Appellant- Lakhwinder Singh raised a 'lalkara' that he(PW1) be caught and taught a lesson regarding the altercation, which took place at the night time. Upon this, appellant-Pritam Singh gave small size 'kirpan'(Gatra) blow to PW1 on the left side of his abdomen. PW1 became unconscious and felled on the ground. He brought PW1 to Civil Hospital, Qadian, from where he was referred to Guru Nanak Dev Hospital, Amritsar. 9. PW3-Satish Chander, Draftsman, prepared the correct site plan (Ex.PB) of the place of occurrence at the instance of PW2-Gurmit Singh. 10. The next to note is the testimony of PW5-Dr.Rattanjit Singh, who has stated that he medico legally examined PW1 vide MLR(Ex.PM) and found a stab wound 2.5 x 1 cm on the left side of back of abdomen, 13cm above the hip bone. Freshly clotted blood was present. Depth of wound was not probed. It was caused by a sharp edged weapon, which could be a small size 'kirpan'(Gatra) within a probable duration of 24 hours. The injury was kept under observation subject to operation notes of the Surgeon. On the basis of operation notes and the report of the Board of Doctors(Ex.PN), he declared the injury, as could be dangerous to life, vide his opinion(Ex.PO). According to PW5, the patient was referred to surgical ward by him for operation vide his requisition form(Ex.PQ). 11. Likewise, PW6-Dr.Balwinder Singh has maintained that on 14.03.1996, he conducted the operation on the person of PW1 with the assistance of Dr.Gurdev Singh, Dr.Sandeep and Dr.Manmohan Singh. Whole of the peritoneal cavity was full of blood and blood clots. There was a deep cut about 2cm deep on posterior aspect of spleen, which was profusely bleeding. A 5cm long cut was present on the cortex of left kidney on its outer surface which was stitched with chromic catgut. He produced photocopy(Ex.PN) of the original notes. 12. The last to note is the testimony of PW4-SI Hardev Singh, main Investigating Officer, who has, inter alia, stated that he correctly recorded the statement(Ex.PA) of PW1 and sent the same for registration of the case, on the basis of which formal FIR(Ex.PA/1) was recorded. PW1 produced Crl.Appeal No.1126-SB of 1999 5 his blood stained clothes(Exs.P1 and P2), which were taken into possession vide recovery memo(Ex.PE) and the same converted into sealed parcel. He inspected the spot and lifted the blood stained earth vide recovery memo (Ex.PF) and prepared the rough site plan(Ex.PG) of the place of occurrence with its correct marginal notes. 13. According to PW4, the appellants were arrested on 21.03.1996. Accused-Pritam Singh suffered a disclosure statement that he had kept concealed one small size 'kirpan'(Gatra) and his statement to that effect was recorded, which he got recovered from his house in pursuance of his disclosure statement. Rough sketch(Ex.PJ) of small size 'kirpan'(Gatra) was prepared. The 'kirpan' was converted into a sealed parcel and taken into possession vide recovery memo(Ex.PK). He also prepared the site plan (Ex.PL) of the place of recovery of 'kirpan'. Thus, he attempted to testify the investigation carried out by him. 14. After the close of the prosecution case, statement of the appellants were recorded as contemplated under Section 313 Cr.P.C. The entire incriminating evidence was put to enable them to explain any circumstances appearing against them in the prosecution evidence. They denied the prosecution evidence in its totality and pleaded false implication. However, they did not prefer to lead any evidence in defence, despite adequate opportunities. 15. The trial Judge, after taking into consideration the evidence on record, convicted and sentenced the appellants as depicted here-in-above. 16. The appellants did not feel satisfied with the impugned judgment of conviction and order of sentence and filed the present appeal. That is how I am seized of the matter. 17. At the very outset, the contention of the learned counsel that appellant-Lakhwinder Singh has been falsely implicated in this case, as no role is assigned to him by the prosecution, has considerable force. It is not a matter of dispute that he was vicariously charge-sheeted with the aid of Section 34 IPC, which postulates that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. 18. Now the short and significant question though important arises for determination at this stage is whether appellant-Lakhwinder Singh can Crl.Appeal No.1126-SB of 1999 6 be held guilty vicariously or not? As per prosecution version, appellant- Lakhwinder Singh was standing along with his brother appellant-Pritam Singh near the tea stall(place of occurrence) of Parkash. The prosecution claimed that as soon as PW1 reached the tea stall, then appellant- Lakhwinder Singh only raised a 'lalkara'. No other part is attributed to him. There was not a whisper in the statements of PW1 and PW2 that appellant- Lakhwinder Singh shared the requisite common intention to commit the crime with main accused-Pritam Singh. Appellant-Lakhwinder Singh is the real brother of main accused-Pritam Singh. His mere presence at the spot is not sufficient to infer that he actually shared the requisite common intention with his brother Pritam Singh. There was no previous enmity between the parties. So much so no motive is proved on record. It is not the case of the prosecution that the appellants came to the spot with pre-planning and meeting of mind to commit the crime. There is positive evidence that appellant-Lakhwinder Singh used to sit on the shop of his brother in the same market. Hence, his presence at the spot was natural. So, under these circumstances, the possibility of false implication of the appellant- Lakhwinder Singh cannot be ruled out under the present set of circumstances. Therefore, he deserves the benefit of reasonable doubt. Having extended the benefit of reasonable doubt, appellant-Lakhwinder Singh is hereby acquitted of the charge framed against him for want of adequate evidence in this direction. 19. Be that as it may, but as regards, the participation of appellant- Pritam Singh is concerned, there is sufficient evidence on record to connect him with the crime in question, as discussed here-in-above. 20. Such, thus, being the state of evidence on record, now adverting to the main argument of the learned counsel for the appellant Pritam Singh that there is an unexplained delay in lodging the FIR in the police station and also no explanation is forth coming on record as to why PW2 did not lodge the report on the day of occurrence, which, according to him, is fatal to the prosecution case. In this regard, the prosecution claimed that the occurrence took place at 9.30 A.M. on 14.03.1996. Immediately after the occurrence, first aid was provided to him and wound was dressed/bandage by the doctor at Qadian, which is clear from cross- examination of PW2. Thereafter, PW1 was referred to the Civil Hospital, Crl.Appeal No.1126-SB of 1999 7 Amritsar. It is also clear from the cross-examination of PW5-Dr.Rattanjit Singh, wherein he has stated that at the time of examination by him, the injured was already dressed and he had removed the said bandage. Ultimately, PW1 was medico legally examined by PW5 at 3.45 P.M. in Civil Hospital, Amritsar vide MLR (Ex.PM). Keeping in view the nature of injury, PW5 referred the patient vide requisition form (Ex.PQ) to the surgical ward for operation. PW6-Dr.Balwinder Singh operated PW1 on the same day. It has come in the evidence of PW4 that in the wake of wireless message received on 14.03.1996 that PW1-injured admitted in the Civil Hospital, Amritsar, he went there and moved application(Ex.PC) on which the doctor opined that the injured was unfit to make the statement. On 15.03.1996, he again went to the hospital and moved another application (Ex.PD) whereupon the doctor opined vide his opinion (Ex.PD/1) that the injured was fit to make the statement. Thereafter, he recorded his(PW1) statement (Ex.PA), made his endorsement at 4.30 P.M. and sent the same to the police station where FIR (Ex.PA/1) was registered at 6.30 P.M. on 15.03.1996. It means, the delay in lodging the FIR is duly explained in these circumstances. No doubt, PW2-Gurmit Singh did not lodge the report to the police on the date of occurrence, but there is nothing in the statement of PW4 to indicate that PW2-Gurmit Singh had met him or he had seen him in the hospital before recording the statement (Ex.PA) of PW1. No specific suggestion was put to PW2 in this respect. The testimony of PW5 that PW1 declared unfit to make the statement on 14.03.1996, remained unchallenged. Moreover, the primary and paramount concern of PW2 was to immediately take the injured to the capable hospital and to arrange for his best medical treatment in order to save his life than to rush to police station to lodge the FIR. 21. It cannot possibly be denied that PW4 did not take required interest and utilize the professional police skill and did not visit the place of occurrence to find out the origin and manner of occurrence and did not try to locate the witnesses on that day, particularly when he received categoric information with regard to admission of the injured in the hospital on the same very day. All these facts cogently would prove that PW4 was somewhat negligent and did not show the required interest in the investigation for the reasons best known to him. But, the inefficiency and Crl.Appeal No.1126-SB of 1999 8 inaction on the part of the Investigating Officer, in this behalf, is not a ground to throw the complainant's case. The prompt admission and medical examination of the injured lends considerable corroboration and the lapse on the part of PW4 has got no direct bearing on the merits of the present case. Besides, the guilty persons cannot possibly be allowed to escape punishment simply on account of such lapse by the Investigating Officer, particularly when the case of the prosecution is otherwise proved from ocular as well as the medical evidence, as described here-in-above. 22. Moreover, in injury case, mere delay in lodging the report to the police is not at all fatal to the prosecution case. That being so, the arguments that the delay remained unexplained and PW2 did not lodge the FIR, pales into insignificance in this relevant connection. As the delay in lodging the FIR has satisfactorily been explained, which is not per se fatal, specially when the case is fully supported by injured/stamped eye witness PW1 Baldev Raj and eye witness PW2-Gurmit Singh coupled with the medical evidence. 23. The other celebrated argument of learned counsel for the appellant that non-examination of Laddi son of Bahadur and Pritam Singh- PW renders the prosecution story doubtful, is not only devoid of merit but misplaced as well. It is nobody's case that Laddi son of Bahadur had witnessed the present occurrence on 14.03.1996. Sequelly, the prosecution was also not legally required to examine Pritam Singh-PW, because its case was fully corroborated by ocular evidence in the shape of PW1 and PW2 coupled with the medical evidence of PW5 and PW6. Moreover, there is no legal requirement for the prosecution to produce each and every witness of the occurrence, in question, in the court in view of Section 134 of the Indian Evidence Act, which postulates that no particular number of witnesses shall in any case be required for the proof of any fact in issue, specially when the prosecution has examined sufficient evidence on record to prove the guilt of the appellant. 24. The next argument of the learned counsel that the evidence brought on record by the prosecution falls short as is required to prove a criminal charge against the appellant, again is not tenable. As is clear from the record that PW1-injured/stamped eye witness and PW2-eye witness gave the vivid and consistent version of the occurrence and, inter alia, Crl.Appeal No.1126-SB of 1999 9 maintained that on the fateful day, appellant-Pritam Singh caused a single blow in the abdomen of PW1 with a small size 'kirpan'(Gatra). They supported the prosecution story on all vital counts. They were cross- examined at length but nothing substantial material could be elicited in the searching cross-examination to dislodge their testimonies and impeach their credibility. Not only, that the prosecution story is proved by ocular evidence, it finds corroboration from the medical evidence as well indicating the corresponding injury on the person of injured witness. The recovery of 'Gatra' in pursuance of the disclosure statement of appellant Pritam Singh lends more credence to the story of the prosecution. 25. The plea of false implication and mere denial by appellant- Pritam Singh outrightly deserves to be rejected in the absence of any cogent material on record in this context, more so, when his participation in the commission of crime is duly proved. 26. Thus, it would be seen that if the entire oral as well as medical and the documentary evidence brought on record by the prosecution, is put together as described here-in-above, then it stands proved on record that appellant-Pritam Singh has voluntarily caused and inflicted single injury on the person of PW1, in the same manner as projected by the prosecution witness. Hence, the contrary arguments of the learned counsel for the appellant 'stricto sensu' deserve to be and are hereby repelled under the present set of circumstances of the case. 27. That being so, learned counsel for the appellant has fairly acknowledged that he will not be in a position to contest the conviction of appellant-Pritam Singh any more, in view of the acceptable evidence on record. However, he then urged that assuming for the sake of arguments that appellant-Pritam Singh inflicted a blow to PW1, even then no offence under Section 307 IPC is made out against the appellant. 28. Once the participation of appellant-Pritam Singh in the crime in question is proved, and above being the position of evidence on record, now the core significant question arises for determination is, what offence he has committed in this regard? 29. As is evident from the record, appellant-Pritam Singh was substantively charge-sheeted for the commission of offence punishable under Section 307 IPC, which postulates that; whoever does any act with Crl.Appeal No.1126-SB of 1999 10 such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned”. 30. The complete reading of this provision would suggest that in order to convict a person under Section 307 IPC, the intention or the requisite knowledge to cause death are the essential ingredients. An attempt for purpose of Section 307 IPC should stem from a specific intention to commit murder. That means, an act though sufficient in the ordinary course of nature to cause death, would not constitute an offence under this Section, if the necessary intention or knowledge on the part of the accused is lacking. Thus, for the purpose of this offence, what is material, is the intention or knowledge and not the consequence of the actual act done for the purpose of carrying out that intention. Intention and knowledge being a man's state of mind, cannot be proved by direct evidence thereof except through his own confession. In the absence of such a confession, intention and knowledge can only be proved by circumstantial evidence. These are the matters of inferences from all the facts and circumstances available on record. 31. Keeping this legal aspect of the matter into focus, again the next question that arises for determination is whether in the instant case, appellant-Pritam Singh had the requisite intention to cause the murder of PW1 or had the requisite knowledge that his act in all probabilities, would be sufficient to cause death in the ordinary course of nature? In this respect, the prosecution claimed that appellant-Pritam Singh along with his other co-accused Lakhwinder Singh(since acquitted) were already present near the tea shop when PW1 went there to bring tea for his uncle. Admittedly, there was no previous enmity between the parties. It is not the case of the prosecution that the appellant came to the spot with pre-planning and meeting of mind to commit the crime armed with deadly weapon. The incident originated at a spur of moment, which enraged appellant-Pritam Singh to inflict an injury to PW1 with his small size 'kirpan'(Gatra), which is ordinarily and commonly worn by the persons having faith in Sikh Crl.Appeal No.1126-SB of 1999 11 religion. The appellant did not repeat the injury. He(Pritam Singh) and PW1 are earning their livelihood by running their respective shops in the same market. 32. From the sequence of events, narrated here-in-above, it cannot possibly be inferred that all the essential ingredients of offence under Section 307 IPC are complete. On the contrary, same are totally lacking and completely missing in the present case. If appellant-Pritam Singh had the requisite intention to cause murder, then he would have brought some lethal weapon and straightway caused injuries to PW1 on his vital parts. He caused the solitary injury with the small 'kirpan'(Gatra), which he was already wearing. Therefore, it is held that appellant-Pritam Singh did not have either the intention to murder of PW1, nor had the requisite knowledge that his act is sufficient in the ordinary course of nature to cause death, particularly when he did not repeat the injury. 33. There is another aspect of the matter which can be viewed from a different angle. As per medical evidence of PW5, there was a stab wound 2.5 x 1 cm on the left side of back of abdomen, 13cm above the hip bone. In addition to it, PW5