IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. A-141-MA of 2011 ( O&M ) DATE OF DECISION : 25.07.2011 State of Punjab .... APPLICANT Versus Manga Singh and others ..... RESPONDENTS Crl. Misc. No. A-1193-MA of 2010 DATE OF DECISION : 25.07.2011 Rani and another .... APPLICANT Versus State of Punjab and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE A.N. JINDAL Present: Ms. Manjari Nehru Kaul, Addl. A.G., Punjab, for the applicant-State (in Crl. Misc. No. A-141-MA of 2011) Mr. K.B.S. Mann, Advocate, for the applicants (in Crl. Misc. No. A-1193-MA of 2010) * * * SATISH KUMAR MITTAL , J. The State of Punjab has filed this application (Crl. Misc. No. A- 141-MA of 2011) under Section 378 (3) Cr.P.C., for granting leave to file Crl. Misc. No. A-141-MA of 2011 -2- appeal against the judgment dated 16.8.2010, passed by the court of Sessions Judge, Muktsar, whereby all the four accused (respondents herein), have been convicted for the lesser offence, i.e. under Section 304 Part II IPC and Section 304 Part II read with Section 34 IPC, instead of convicting them under Sections 302 and 302 read with Section 34 IPC. This application is time barred by 15 days, regarding which the applicant-State has filed application (Crl. Misc. No. 5869 of 2011) under Section 5 of the Limitation Act, for condoning the delay. The complainant-injured, namely Rani, and Ginda Singh (son of the deceased) have also filed an application (Crl. Misc. No. A-1192-MA of 2010) under Section 378 (4) Cr.P.C, for granting special leave to appeal against the aforesaid judgment. Both these applications for grant of leave to appeal shall be disposed of together by this common order. The prosecution, in the instant case, was launched on the statement of complainant Rani, wherein she alleged that on 3.8.2008 at about 9 PM, when she was present in her house, she heard noise from the side of the house of accused Jagga Singh. Thereupon, she along with her father-in-law Harbans Singh (deceased) emerged out of their house and they saw that outside the house of accused Jagga Singh, complainant's younger brother-in-law (Devar), namely Ginda Singh, was encircled by all the four accused, namely Manga Singh, Nirmal Singh alias Nimma, Melu Singh and Jagga Singh. When complainant Rani and her father-in-law Harbans Singh proceeded ahead to rescue Ginda Singh, accused Jagga Singh raised lalkara Crl. Misc. No. A-141-MA of 2011 -3- to catch hold of Harbans Singh, because he was not taking care of the conduct of his son Ginda Singh, as the accused, who are sons and father, were suspecting that he was having illicit relations with Kuldip Kaur wife of accused Manga Singh. On this, accused Manga Singh gave a kasia (spade) blow from the reverse side on the head of Harbans Singh. Accused Nirmal Singh alias Nimma inflicted one dang blow on the right side of the forehead of Harbans Singh. It is further alleged that accused Melu Singh gave a kasia blow from the reverse side on the head of complainant Rani and thereafter, all the accused fled away from the scene with their respective weapons. After more than one month of the occurrence, Harbans Singh died due to head injury, and injury on the body of complainant Rani was found to be simple in nature. After completion of investigation, challan was filed against. The accused were charge sheeted for the offences under Sections 302, 323 read with Section 34 IPC, to which they did not plead guilty and claimed trial. In support of its case, the prosecution examined PW.1 Rani (complainant-injured), PW.2 Dr. Rashmi Chawla, PW.3 Ginda Singh (eye witness), PW.4 Dr. Vijay Shanker Jha, PW.5 Ajit Sharma, Draftsman, PW.6 Ram Parkash, JE, Electricity Board, PW.7 Dr. Kamal Sharma, PW.8 Dr. Sunil Bansal, PW.9 ASI Kulwant Singh, and PW10 ASI Balbir Singh, the Investigating Officer. In their statements under Section 313 Cr.P.C., all the accused Crl. Misc. No. A-141-MA of 2011 -4- denied the allegations appearing against them in the prosecution evidence. They pleaded innocence and false implication in the case. In defence, they examined DW.1 Dr. Prabhjit Singh, Medical Officer, Civil Hospital, Malout and DW.2 Kulwant Singh. The trial court, after relying upon the prosecution evidence, vide judgment and order dated 16.8.2010, convicted and sentenced respondents No.1 and 2 to undergo rigorous imprisonment for eight years each under Section 304 Part II IPC, and to undergo rigorous imprisonment for one year each under Section 323 read with Section 34 IPC; respondent No.3 has been convicted and sentenced to undergo rigorous imprisonment for eight years under Section 304 Part II read with Section 34 IPC, and to undergo rigorous imprisonment for one year under Section 323 IPC; whereas respondent No.4 has been convicted and sentenced to undergo rigorous imprisonment for eight years under Section 304 Part II read with Section 34 IPC, and to undergo rigorous imprisonment for one year under Section 323 read with Section 34 IPC. All the sentences of imprisonment have been ordered to run concurrently. It is an admitted fact that all the four respondents are undergoing their sentence of imprisonment and have not filed any appeal against their conviction and sentence. The argument of learned counsel for the State as well as the complainant is that in the present case, the trial court has wrongly convicted all the accused under Section 304 Part II and Section 304 Part II read with Crl. Misc. No. A-141-MA of 2011 -5- Section 34 IPC, as in the facts and circumstances of the case, they should have been convicted and sentenced to undergo imprisonment for life, under Section 302 and Section 302 read with Section 34 IPC. We have considered the submissions made by learned counsel for the State as well as the complainant and have gone through the impugned judgment, and are of the opinion that the present case is not a fit case, where the leave to appeal against the impugned judgment should be granted. The learned trial court, after appreciating the evidence led by the prosecution in right direction, and taking into consideration the fact that in a sudden occurrence, in the heat of passion, accused Manga Singh gave only one blow with reverse side of kasia, came to the conclusion that only offence under Section 304 Part II IPC is attracted, as the act is done by the accused with knowledge that it is likely to cause death, but without any intention to cause death of Harbans Singh or to cause such bodily injury, as is likely to cause his death, while making the following observations : “Herein, this Court finds from appraisal of evidence of prosecution on the record that accused Manga Singh gave one single Kasia blow with reverse side only on the person of Harbans Singh deceased. Accused Manga Singh is thus, supposed to have the requisite knowledge that it was likely to cause death, but there appears no intention on his part to cause death of Harbans Singh. If he intended to cause his death, then he must have given the kasia blow with its blade side on the head of Harbans Singh deceased and number of kasia blows would have many. Similarly, accused Nirmal Singh only gave a Crl. Misc. No. A-141-MA of 2011 -6- single dang blow on the person of Harbans Singh, since deceased and as such he had also no intention to cause his death. Accused Melu Singh gave only kasia blow with its reverse side on the person of Rani and thus, there appears no intention on the part of the accused in causing murder of Harbans Singh from the given circumstances of the case. Only one blow with reverse side of kasia was given to Harbans Singh by accused Manga Singh. Keeping in view the number of injuries attributed to the accused and side of the weapon with which the injuries were caused to Harbans Singh, the only inference that can be drawn is that accused had no intention to cause his death, but had the requisite knowledge that it was likely to cause his death. The one injury alone caused by accused each with reverse side of the weapon carries no intention of the accused in causing death of deceased Harbans Singh in the opinion of this Court. The blow unfortunately fell on the vulnerable part of the deceased with reverse side of the weapon as inflicted by the accused to him.” It has been further observed by the learned trial court that the accused were suspecting illegal relations of Ginda Singh with Kuldip Kaur wife of accused Manga Singh and due to that, in a sudden occurrence, which took place outside the house of the accused at night time, accused Manga Singh gave one kasia blow from the reverse side on the head of Harbans Singh, due to which he died, after more than one month of the occurrence. If the accused would have any intention to cause death of Harbans Singh, he would have given more blows and would have given blow on the body of Harbans Singh from the sharp side of kasia, but not Crl. Misc. No. A-141-MA of 2011 -7- from its reverse side. The learned trial court has further come to the conclusion that the said incident had occurred in the heat of passion, due to the alleged intimacy of Ginda Singh son of Harbans Singh with Kuldip Kaur wife of accused Manga Singh and there was no intention of the accused to cause the death of Harbans Singh. Their only intention was to warn Harbans Singh, who interfered in the altercation of Ginda Singh and the accused, that he should take care of the conduct of his son Ginda Singh and restrict him from having illicit relations with Kuldip Kaur. In our opinion, the aforesaid conclusion, arrived at by the learned trial court, cannot be said to be unreasonable, perverse or absurd. The view taken by the learned trial court is a reasonable view, which could have been taken in the facts and circumstances of the present case. Thus, we do not find any ground to grant leave to appeal, either to the State or to the complainant. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE July 25, 2011 ( A.N. JINDAL ) ndj JUDGE