IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Crl.A.No.372-DB of 2000 Date of Decision: 17.9.2008 Sewa Singh ..Appellant. Versus Punjab State ..Respondent CORAM : HON'BLE MR.JUSTICE S.S.SARON HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present : Mr.J.S.Virk, Advocate for the appellant. Mr.S.S.Bhinder, Addl.AG Punjab. *** S.S.SARON, J. This appeal has been filed by the appellant Sewa Singh against the judgment and order dated 22.4.2000 passed by the learned Sessions Judge, Amritsar whereby the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code (`IPC' for short) and sentenced to undergo rigorous imprisonment (RI – for short) for life; besides, to pay a fine of Rs.5000/- and in default of payment of fine, he has been ordered to undergo further RI for a period of six months. The FIR (Ex.PC/2) in the case has been registered on the statement (Ex.PC) of Baldev Singh (PW3) son of Hardial Singh. It is stated by the complainant Baldev Singh (PW3) that he is resident of village Rajoke Pati, Darga Kalan, Police Station Khalra and does agricultural work. They were two brothers and the name of his younger brother was Sukhdev Singh (deceased). Both of them were married and they lived separately. On the date of occurrence i.e. on Crl.A.No.372-DB of 2000 [2] 23.6.1998 at about 6 a.m. in the morning, Sukhdev Singh (deceased) had taken Sewa Singh (appellant) for doing work on daily wages basis. At about 9 a.m. appellant Sewa Singh had a quarrel with Sukhdev Singh (deceased) and had come back home after leaving in between the work which they had taken. Sukhdev Singh after reaching home informed about the quarrel to the complainant Baldev Singh (PW3) and his mother Gurbachan Kaur (PW4). After some time, Sukhdev Singh (deceased) went to the house of Sewa Singh (appellant) for taking Sewa Singh with him. Gurbachan Kaur (PW4) (mother of the complainant) and Baldev Singh (PW3) also followed Sukhdev Singh. When they reached near Dera Baba Koni Dass at about 10 a.m., Sukhdev Singh (deceased) and Sewa Singh (appellant) were quarreling with each other. Sukhdev Singh was saying that he had taken Rs.50/- for doing work for the whole day and he should work with him for the whole day but Sewa Singh (appellant) said that he would not go with him (Sukhdev Singh) for doing work with him for the whole day. During this bickering in the presence of Baldev Singh (PW3) and Gurbachan Kaur (PW4), Sewa Singh (appellant) gave a knife blow that he was holding in his hand, which hit Sukhdev Singh (deceased) on the left side of his neck. After the knife blow was inflicted, Sukhdev Singh (deceased) fell on the ground and he died at the spot. The complainant Baldev Singh (PW3) and Gurbachan Kaur (PW4) witnessed the whole incident with their eyes. They raised an alarm of ‘Mar Ditta, Mar Ditta’ and they tried to over- power Sewa Singh (appellant) but he ran away from the place of occurrence along with his knife. The complainant Baldev Singh Crl.A.No.372-DB of 2000 [3] (PW3) after leaving his mother Gurbachan Kaur (PW4) near the dead body of his brother Sukhdev Singh was going to the Police Station for lodging a report, where SI/SHO Mukhtiar Singh Police Station Khalra (PW7) met him and his statement (Ex.PC) was recorded. SI/SHO Mukhtiar Singh (PW7) who recorded the statement read over the same to the complainant Baldev Singh (PW3) who after hearing it admitted the same to be correct and he thumb marked the same. SI/SHO Mukhtiar Singh (PW7) attested the same. From the said statement, an offence punishable under Section 302 IPC was made out and the writing was sent to the Police Station for registration of a case (FIR) through SPO Balwinder Singh No.307. SI/SHO Mukhtiar Singh (PW7) left for the place of occurrence at village Rajoke. ASI Didar Singh, P.S.Khalra recorded FIR at the Police Station. The matter was investigated by SI/SHO Mukhtiar Singh (PW7), who was then posted at Police Station Khalra. Complainant Baldev Singh (PW3) accompanied by SI/SHO Mukhtiar Singh (PW7) reached the spot at village Rajoke. The dead body of Sukhdev Singh was lying in Dera Baba Koni Dass. Inquest proceedings were conducted and report (Ex.PH) in respect of the dead body in the presence of the witnesses was prepared. The statements of witnesses were recorded. Injury statement Ex.PJ in respect of dead body was also prepared. The place of occurrence was inspected by the Investigating Officer SI/SHO Mukhtiar Singh (PW7) and a rough site plan with correct marginal notes in his hand was prepared. Ordinary earth and blood stained earth was lifted from the place of occurrence, which were taken into possession after making them into two separate sealed parcels vide Crl.A.No.372-DB of 2000 [4] recovery memos Ex.PE and Ex.PD respectively. Statement of Gurbachan Kaur (PW4) eye witness to the occurrence, was also recorded. Thereafter, the dead body of Sukhdev Singh was sent for post-mortem examination. A search was made for the accused- appellant. On return to the Police Station, the case property with seals intact, was deposited with MHC on 24.6.98. HC Ranjit Singh and HC Mehal Singh produced the clothes that had been removed from the dead body, before SI/SHO Mukhtiar Singh (PW7) which were taken in police possession vide recovery memo Ex.PN. These were deposited with the MHC on the same day with the seals intact. Thereafter, the accused-appellant was produced before SI/SHO Mukhtiar Singh (PW7) by one Amar Singh of village Rajoke. The accused-appellant was arrested and interrogated. He made a disclosure statement (Ex.PO) regarding concealment of a knife. It was stated by the appellant that the knife which he used at the time of occurrence wrapped in a polythene paper had been burried under the ground in the courtyard of his house and only he knew about it. He offered to get the same recovered. The disclosure statement (Ex.PO) was recorded, which was thumb marked by the appellant in token of its correctness. The appellant then led the police party to the disclosed place and got recovered the knife from the courtyard of his house after digging the ground. Sketch (Ex.PO/1) of the knife was prepared and the knife (Ex.P1) was taken in possession of the police after making it into a sealed parcel vide recovery memo Ex.PO/2. A rough site plan (Ex.PO/3) of the place of recovery with correct marginal notes was prepared. The recovered knife (Ex.P1) was blood stained. Crl.A.No.372-DB of 2000 [5] The statements of the witnesses were recorded and the recovered knife was deposited with MHC. After completion of the investigation, the police filed the charge report (challan) in the Court of learned Sub Divisional Judicial Magistrate, Patti. The learned Magistrate in terms of order dated 4.9.1998 observed that the offence under Section 302 IPC was exclusively triable by the Court of Session. Accordingly, the case was committed to the Court of Session, Amritsar. The leaned Sessions Judge in terms of order 21.9.1998 found a prima-facie case to be made out for the offence under Section 302 IPC. Accordingly, the accused-appellant was charge sheeted on the allegations that he, on 23.6.1998 at 10 a.m. in the area of village Rajoke, did commit murder by intentionally causing the death of Sukhdev Singh and thereby committed an offence punishable under Section 302 IPC. The contents of charge was read over and explained to the appellant and he fully understood the same. He pleaded not guilty to the charge and claimed trial. The prosecution in order to prove its case, examined as many as eight witnesses, besides, documents were tendered in evidence. After the prosecution evidence was closed, the statement of the appellant in terms of Section 313 of the Code of Criminal Procedure (`Cr.P.C'. for short) was recorded. He pleaded innocence and false implication in the case. The learned trial Court after considering the evidence and material on record, convicted the appellant for the offence punishable under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life. The said order of the learned trial Court is assailed by the appellant in this appeal. Crl.A.No.372-DB of 2000 [6] Sh.J.S.Virk, Advocate learned counsel appearing for the appellant has contended that the appellant is absolutely innocent and the prosecution has set up a false and fabricated story in a designed manner to prove the murder. It is submitted that the occurrence is alleged to have taken place in the vicinity of the Gurduwara where number of persons were available however, the prosecution has only examined the brother namely Baldev Singh (PW3) and mother Gurbachan Kaur (PW4) of the deceased. Their testimonies according to the learned counsel, do not inspire confidence so as to record a finding of guilt against the appellant. In fact, being close relatives of the deceased, they would depose in his favour. According to the learned counsel, the said witnesses have been introduced so as to make out a case of an eye witness account, otherwise there is nothing to show that they made any efforts to rescue Sukhdev Singh who is said to have been assaulted or to arrange to carry him to a doctor. Therefore, the learned trial Court has gravely erred in convicting and sentencing the appellant. It is also contended that in any case, in the alternative even if the Court holds that the appellant indeed was involved in causing the knife blow then also at the most a case under Section 304 Part II IPC is made out as the appellant did not repeat the blow. Therefore, it is submitted that the appellant is liable to be sentenced for the period already undergone inasmuch his sentence of imprisonment was suspended by this Court vide order dated 10.9.2004 and he had undergone a period of about 6 years of sentence from the date of his conviction. Crl.A.No.372-DB of 2000 [7] In response, Sh. S.S.Bhinder, learned Addl. AG Punjab appearing for the State has submitted that the prosecution has proved its case from the direct eye witness account of Baldev Singh (PW3) and Gurbachan Kaur (PW4). It is submitted that their presence at the time of occurrence is natural and merely because they are closely related to the deceased Sukhdev Singh, is no reason to discard their sworn testimonies. It is submitted that the injury inflicted by the appellant is corroborated by the medical evidence on record and Dr.Sham Lal Gupta, Chief Medical Officer, Civil Hospital, Patti (PW6), who conducted the post mortem examination, has found an incised punctured wound 4 cm x 2.5 cm on the left side of the neck lower part outer aspect. Therefore, it is submitted that the findings and conclusions reached at by the learned trial Court, do not warrant any interference by this Court and the judgment and order passed by the learned trial Court, are liable to be sustained and upheld. We have given our thoughtful consideration to the contentions of the learned counsel appearing for the respective parties and with their assistance, gone through the records of the case. Complainant Baldev Singh (PW3) in his deposition in Court, has reiterated his version as given by him in his statement (Ex.PC) before the police on the basis of which FIR (Ex.PC/2) has been registered. He was cross-examined by the learned counsel for the defence, however, nothing as such could be got out which would in any manner help the appellant. The evidence of complainant Baldev Singh (PW3) is corroborated by his mother Gurbachan Kaur (PW4). She was also cross-examined by the defence, however, Crl.A.No.372-DB of 2000 [8] nothing could be brought out from her statement as well which would in any manner help the appellant. It may be noticed that the deceased Sukhdev Singh and appellant Sewa Singh had taken labour work for Rs.50/- as wages for the day. On the date of the occurrence i.e. 23.6.1998, Sewa Singh appellant had left the work without completing it. At about 9 a.m. Sukhdev Singh (deceased) brother of the complainant Baldev Singh (PW3), had gone to the house of appellant Sewa Singh to call him so that they could complete the work which they had taken. At that time, Gurbachan Kaur (PW4) and Baldev Singh (PW3) had followed him. It has come on record that house of appellant Sewa Singh was at a distance of about 40 karams from the house of the complainant Baldev Singh (PW3). When they reached Gurduwara Baba Koni Dass, they found that the appellant Sewa Singh and Sukhdev Singh (deceased) were quarreling amongst themselves. Sukhdev Singh was asking Sewa Singh to complete the work as he had settled for Rs.50/- for doing the work for the entire day. However, the appellant refused to do the work. Rather he (Sewa Singh – appellant) gave a knife blow to Sukhdev Singh which hit him on the left side of his neck. Earlier to that, the appellant had also pushed Sukhdev Singh. As a result of the knife blow on the person of Sukhdev Singh (deceased), he fell on the ground and died at the spot. The appellant ran away along with his knife. In the meantime, Harbans Singh came there. Harbans Singh and Gurbachan Kaur were left near the dead body of Sukhdev Singh and Baldev Singh (PW3) got his statement (Ex.PC) recorded before the police on the basis of which the FIR (Ex.PC/2) was recorded. Injury that has been inflicted Crl.A.No.372-DB of 2000 [9] by the appellant on the neck of Sukhdev Singh (deceased), is corroborated by the evidence of Dr.Sham Lal Gupta, CMO, Civil Hospital, Patti (PW6), who conducted the post mortem examination on the dead body of Sukhdev Singh. He found the following injuries on his person:- “1 Incised punctured wound 4 cm x 2.5 cm on left side of the neck lower part outer aspect. Margins were clear cut and everted. Clotted blood was present. Wound was 3 cm above left clavicle. On dissection, there was sub- cutaneous hemorrhage underneath skin, platysma, neck muscles were injured. Clotted blood vessels, veins on the left side were cut. There was about 50 cc clotted blood present in the wound. 2. An abrasion 1 ½ x ½ cm on bridge of nose. All other organs were healthy. Stomach contained very small quantity of semi-digested food. Small intestines contained digested food and large intestine contained fecal matter.” In the opinion of Dr. Sham Lal Gupta (PW6), the cause of death in this case, was shock and hemorrhage due to injury No.1 which was sufficient to cause death in ordinary course of nature. Injury it was opined was ante-mortem in nature and caused by sharp pointed weapon. A perusal of the medical evidence shows that the Crl.A.No.372-DB of 2000 [10] veins of the left side of the neck were cut and there was about 50 cc clotted blood present in the wound. The doctor (PW6) has opined that the cause of death due to shock and hemorrhage due to injury No.1, which was sufficient to cause death in the ordinary course of nature. Dr. Sham Lal Gupta, (PW6) was cross-examined on behalf of the appellant. It is stated by him that he had seen the knife (Ex.P1) for the first time in Court on the day he was deposing in Court. It is further stated that injury No.1 on the dead body by a fall on some sharp- edged substance could not have been possible. Besides, it was stated that it was incorrect to suggest that injury No.1 could have been possible by means of a fall on some sharp substance. Therefore, the medical evidence on record corroborates the injury, which Sewa Singh appellant as per the prosecution case had inflicted on the person of Sukhdev Singh (deceased). It has also come in evidence that after the arrest of appellant Sewa Singh, he made a disclosure statement (Ex.PO) regarding concealment of a knife (Ex.P1) that he had used at the time of occurrence. The knife (Ex.P1) it was stated was wrapped in a polythene paper in the courtyard of his house and he could get the same recovered after digging the ground. The disclosure statement (Ex.PO) was left thumb marked by the appellant Sewa Singh and was attested by SI/SHO Mukhtiar Singh (PW7) and witnessed by ASI Kulwant Singh and HC Ranjit Singh. In pursuance of the said disclosure statement (Ex.PO), the knife (Ex.P1) was recovered and recovery memo (Ex.PO/2) was prepared. The sketch of the blood stained knife was then prepared and the parcel of the recovered knife, whose length of blood is about 3” and length of Crl.A.No.372-DB of 2000 [11] handle is about 3 ½” was taken in possession by the police and sealed with the seal MS. After affixing 4 seals, a parcel was prepared and the recovered knife (Ex.P1) was taken in possession by the police vide memo Ex.PO/2. The length of the recovered knife was about 6 ½”. The report of chemical examiner (Ex.PR) has been placed on record. In terms of the said report (Ex.PR); Exhibits No.II (A), II (B), II (C), II (F) and No.IV i.e. Safa (turban), Fatuhi (cloth), Kachhehra (underwear), Parna (a piece of cloth) and Chaku (Knife) were found to contain blood. Pieces and scrapings thereof were sent to the Serologist, Govt. of India. Blood was also found on Exhibits No.II (D), II (E) and No.III i.e. Jutti (shoes), Karra (an iron bangle) and Earth etc. Pieces were sent to Serologist, Govt. of India. No blood was found on exhibit No.1, which is sample of earth. The case of the prosecution, therefore, stands established by the eye witness account, which is corroborated by the medical evidence and the report of the Chemical Examiner. The contention of the learned counsel for the appellant that no independent witness was examined and that the evidence of Baldev Singh (PW3) as well as of Gurbachan Kaur (PW4) being the real brother and mother of the deceased is unreliable, is clearly without any merit. It is well known that independent witnesses are generally reluctant to depose as regards the manner in which they saw an occurrence. Besides merely because the witnesses are closely related to the victim is by itself no reason to discard their sworn testimonies when their presence is natural and is otherwise established. The fact that Baldev Singh (PW3) and Gurbachan Kaur (PW4) being the real brother and mother Crl.A.No.372-DB of 2000 [12] of the deceased did not go near the victim to try and rescue him, is also in the facts and circumstances not such a circumstance for which the appellant can get any benefit. In fact, the occurrence had taken place at the spur of the moment. It is while Sewa Singh (appellant) and Sukhdev Singh (deceased) were quarreling that Sewa Singh took out a knife and inflicted a single blow with it on the neck of Sukhdev Singh, which proved fatal in the case. He then fled away from the place of occurrence. Therefore, there was no time or in any case very little time left for Baldev Singh (PW3) and Gurbachan Kaur (PW4) to intervene and save Sukhdev Singh (deceased). As such, the contentions of the learned counsel for the appellant that the case of the prosecution is not proved are devoid of any merit. The alternative contention raised by the learned counsel for the appellant as regards the offence under Section 304 Part II of IPC being made out, may be considered. As has already been noticed, the deceased Sukhdev Singh and appellant Sewa Singh were known to each other and they did labour work jointly. Sukhdev Singh (deceased) on the day of the incident was asking Sewa Singh (appellant) to complete the work that they had taken as Rs.50/- had been paid to him. However, the appellant refused to do the work. Therefore, it is in this background that Sewa Singh (appellant) and Sukhdev Singh (deceased) were quarrelling that Sewa Singh inflicted a knife blow to Sukhdev Singh deceased which hit him on his neck and proved fatal. There was admittedly no prior enmity between them. Rather they were good friends and were taking labour work together. The incident evidently had occurred at the spur of the Crl.A.No.372-DB of 2000 [13] moment. It may also be noticed that the appellant did not repeat the blow. In terms of Exception 4 to Section 300 IPC culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. In Surinder Kumar Vs. Union Territory, Chandigarh, AIR 1989 SC 1094, it was held by the Hon'ble Supreme Court that to invoke Exception 4 to Section 300 IPC, four requirements are to be satisfied i.e. (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. In case the said circumstances are established the case would be one of culpable homicide not amounting to murder. In the present case, evidently it was a case of sudden inflicting of the knife blow by the appellant on the person of the deceased and there was no premeditation or planning on the part of the appellant. The knife blow was inflicted by appellant Sewa Singh when Sukhdev Singh deceased was asking the appellant to complete the work as he had been paid Rs.50/- and the appellant was refusing to do the work. Besides the act was done in the heat of passion inasmuch as the deceased was asking the appellant to complete the work for which he had been paid Rs.50/-. The appellant had not taken any undue advantage or acted in a cruel or unusual manner. In fact he did not repeat the blow and the possibility of the blow that he inflicted accidentally cutting the veins on the left side of the neck, cannot entirely be ruled out. Therefore, there was no intention on his Crl.A.No.372-DB of 2000 [14] part to cause the death of Sukhdev Singh or cause such bodily injury as was likely to cause death. In Dharam & Others Vs. State of Haryana, 2007(1) RCR (Criminal) 291 (SC) the parties were brothers and they had a dispute over land. The accused therein caused injury to the deceased with a lethal weapon which proved fatal. The injury was 10 cm x 3 cm x 3 cm on the left parietal bone which fractured the underlying bone and pierced the brain matter. It was held by the Hon’ble Supreme Court that such injury would not attract provisions of Section 302 IPC, besides; the accused had also received five injuries. Having regard to the peculiar circumstances in which the incident took place and the fact that the deceased and the appellants happened to be blood relations, this particular injury which was found to be sufficient in the ordinary course of nature to cause death, was held would fall within the ambit of Section 304 Part II IPC. Accordingly, the appellants therein were convicted for the offence under Section 304 Part II instead of Section302 IPC and were sentenced to rigorous imprisonment for a period of seven years which it was held would meet the ends of justice. In the present case, parties were known to each other, both were labourers and it is a case of inflicting of a single blow on the person of the deceased. The incident is of 23.6.98 and the appellant was arrested on 25.6.98. During trial in the case, he was in custody and after conviction on 22.4.2000, he remained in custody till the sentence of imprisonment was suspended by this Court vide order dated 10.9.2004. Therefore, he has undergone a period of more than 6 years of sentence. Crl.A.No.372-DB of 2000 [15] Keeping in view the facts and circumstances, we are of the view that the case against the appellant is made out for