IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.217-DB of 2001 Date of Decision: 07.12.2009 Balwant Singh and others Appellants Versus State of Punjab Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr.A.P.S.Randhawa, Advocate for the appellants Mr.D.S.Brar, Deputy Advocate General, Punjab for the respondent …. Jasbir Singh, J. Appellants have filed this appeal against judgment and order dated 21.3.2001, vide which, they were convicted for commission of offences punishable under Sections 302/325/323 read with Section 34 IPC. Following sentence was awarded to them:- “Sr.No . Name of the accused Under Section Sentence 1. Balkar Singh 302/34 IPC To undergo imprisonment for life and to pay fine of Rs.10,000/- and in default to further undergo RI for two years. Criminal Appeal No.217-DB of 2001 325 IPC R.I. for 3 years and to pay fine of Rs.1000/- and in default to further undergo R.I. for three months. 323/34 IPC R.I. for six months. 2. Nishan Singh 302/34 IPC To undergo imprisonment for life and to pay fine of Rs.10,000/- and in default to further undergo RI for two years. 325/34 IPC R.I. for 3 years and to pay fine of Rs.1000/- and in default to further undergo R.I. for three months. 323/34 IPC R.I. for six months. 3. Balwant Singh @ Bantu 325/34 IPC R.I. for three years and to pay fine of Rs.1000/- and in default of payment of fine to further undergo R.I. for 3 months. 323 IPC R.I. for six months.0 4. Sahib Singh @ Bikka 302 IPC To undergo imprisonment for life and to pay fine of Rs.10,000/- and in default of fine to further undergo RI for two years. 325 IPC R.I. for 3 years and to pay fine of Rs.1000/- and in default of fine to further undergo R.I. for 3 months. 323/34 IPC R.I. for six months.” Sentence awarded for commission of offences under Sections 325 and 323 IPC was ordered to run concurrently. It was allegation against the appellants that on 5.4.1997, they had caused injuries to Jit Singh (deceased) and his father Chhota Singh. Jit Singh died on 7.4.1997 at about 1.00 am. Initially, FIR was recorded under Section 307 IPC, however, after death of Jit Singh, offence under Section 302 IPC was added in the FIR (Ex.PM/2), which was recorded on 6.4.1997 at 7.00 p.m. 2 Criminal Appeal No.217-DB of 2001 Process of criminal law was set in motion on a statement made by Chhota Singh (PW4), father of the deceased on 6.4.1997 at 6.15 pm, which is as under:- “on 5.4.1997 at about 7 PM Chhota Singh was going to the shop of Bhana Ram of his village Rogla, for purchasing house- hold articles. When he was 4-5 karms short of the shop of Bhana Ram that he was way-laid by the accused, namely, Balkar Singh armed with a dang, Nishan Singh with a Ghop, Balwant Singh @ Bantu with Gandasa and Bikka s/o Balwant Singh with a dang. Bikka raised a lalkara that Chhota Singh has been trapped by them with difficulty and that he be not spared. Balkar Singh inflicted dang blow on the right leg of Chhota Singh hitting him below the knee and Bantu gave a Gandasa blow from the reverse side just on his right knee. That he raised the alarm Marta-marta and his son Jit Singh came there to rescue Chhota Singrh and Bikka accused immediately inflicted dang blow on the head of Jit Singh with an intention to kill him, as a result of which Jit Singh had fallen on the ground and Balkar Singh then inflicted the dang blow near his right eye and when they both raised the alarm that Mohinder Singh, the other son of Chhota Singh had also reached there. Nishan Singh then inflicted the blow with his Ghop on the left knee and Jit Singh and then Bikka inflicted one more blow on the person of Chhota Singh on his left flank. Gurmail Singh s/o Munshi Singh had also reached the spot. Thereafter all the four accused fled from there with their respective weapons." 3 Criminal Appeal No.217-DB of 2001 It is further case of the prosecution that Mohinder Singh and Gurmail Singh, after making arrangement of a vehicle, brought the injured to the Civil Hospital, Sangrur. It was stated that motive for the occurrence was that about two months ago, Balkar Singh appellant-accused went to the house of Jit Singh in a drunken condition. He was given beatings by Mohinder Singh son of Chhota Singh. Matter was patched up by the Gram Panchayat. However, Balkar Singh kept grudge in his mind and inflicted injuries upon Jit Singh and Chhota Singh to take revenge for the above said incident. It has also come on record that ASI Labh Singh received a wireless message at about 10/11 pm on 6.4.1997 regarding admission of above named persons in the hospital. However, he could not go to the hospital for recording their statements because it was late at night. Next day, he went to the hospital, moved an application to get opinion of the doctor regarding fitness of the injured to make a statement. Doctor declared Chhota singh (PW4) fit to make the statement. ASI Labh Singh (PW9) then recorded statement of Chhota Singh, which formed basis for registration of an FIR. Condition of Jit Singh was serious and in the meantime, he was shifted to Rajindra Hospital at Patiala, where he died on 7.4.1997 at 1.00 a.m. In the meantime, investigating officer went to the place of occurrence, prepared rough site plan with correct marginal notes on 7.4.1997. ASI Labh Singh (PW9) went to Rajindra Hospital at Patiala, prepared inquest report on the dead body and sent it for post-mortem examination, which was conducted by Dr.S.S.Oberoi on 7.4.1997 at 10.20 a.m. Appellants-accused were arrested on 10.4.1997. From possession of Sahib Singh @ Bikka and Balkar Singh a dang each was recovered. X-ray 4 Criminal Appeal No.217-DB of 2001 was conducted on Chhota Singh (PW4) and injuries Nos.1 and 2 found grievous and injury No.3 was declared simple in nature. On completion of investigation, final report was put in Court for trial. The appellants-accused were charge sheeted, to which, they pleaded not guilty and claimed trial. The prosecution produced ten witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statements of the appellants-accused were recorded under Section 313 Cr.P.C. Incriminating material, existing on record, was put to them, which they denied, claimed innocence and false implication. It was further stated by them that they were involved in this case on account of party faction in the village and pre- existing enmity between the parties. However, they led no evidence in defence. The trial Court on appraisal of evidence, found the appellants- accused guilty and accordingly, they were convicted and sentenced, as found mentioned in earlier part of this order. Hence, this appeal. Counsel for the appellants has vehemently contended that the trial Court has wrongly convicted and awarded sentence to the appellants- accuse. He has tried to press upon the Court that on account of delay in recording the FIR, story of the prosecution becomes shaky and should not have been relied upon by the trial Court. The prosecution has failed to give any plausible explanation for delay in getting the FIR recorded. He has further argued that there was no motive with the appellants-accused to cause injuries to the deceased and further that it was only a chance meeting. There was no pre-meeting of the minds to commit the crime, as alleged by the prosecution. From the appellants, namely, Balwant Singh and Nishan Singh 5 Criminal Appeal No.217-DB of 2001 alleged weapons of offence were not recovered and further that the prosecution has miserably failed to prove on record intention to commit murder of Jit Singh by the appellants in this case. Jit Singh was only an intervener. As per case of the prosecution, appellant Balwant Singh and Nishan Singh were armed with sharp edged and pointed weapons, however, no incised wound was caused to the deceased and Chhota Singh (PW4) injured. He prayed that appeal be allowed and judgment and order, under challenge, be set aside and the appellants be acquitted of the charges framed against them. Prayer made has vehemently been opposed by the State counsel, who by making reference to the statements made by Chhota Singh (PW4), Mohinder Singh (PW5) and the investigating officer ASI Labh Singh (PW9), argued that a fool-proof case has been made out against the appellants. They, in furtherance of their common intention after conspiring with each other, had committed murder of Jit Singh and caused injuries to Chhota Singh. He further argued that injury to the deceased was caused on vital part of the body, which was sufficient to cause death. He prayed that appeal, having no substance, be dismissed. After hearing counsel for the parties, we feel that participation of the appellants-accused in the alleged crime is fully proved on record. Vivid description, as to how incident has taken place, was given by Chhota Singh (PW4). He is father of the deceased. He has categorically stated that when he went to purchase house hold articles, attack was opened upon him by the appellants. On injuries being caused, he raised an alarm, his son Jit Singh came forward to save him. Sahib Singh @ Bikka caused a dang blow at the head of Jit Singh with intention to kill him, as a result of which, Jit Singh had fallen on the ground, then Balkar Singh gave a dang blow near to 6 Criminal Appeal No.217-DB of 2001 his right eye and Nishan Singh inflicted a blow with Ghop on left knee of the deceased. It is case of the prosecution that noise raised by Chhota Singh and Jit Singh attracted Mohinder Singh (PW5) and others to the spot. Assailants then went away along with their respective weapons. The injured were taken to Government Civil Hospital, Sangrur and they were medico- legally examined by Dr.Parbhat Kumar (PW3) on 5.4.1997 at 10.40 pm. On the person of Jit Singh, this witness found following injuries:- “1. Right eye brow and upper eye lid were tender. There was reddish blue contusion all around right eye. Advised X-ray and to be shown to the surgeon of the. 2. Reddish swelling on the tope of vertex in scalp 12 cm x 3cm with abrasion below hair in parietal region, obliquely placed side to side. Advised X-ray. 3. Lacerated wound 3 cm x ½ cm on the front of upper part of left leg 5 cm below knee. Advised X-ray. Clotted and fresh blood was present.” Jit Singh was in a semi conscious condition. Clotted blood was found present in left nostril and black eye on the right side. PW3 found the following injuries on person of Chhota Singh (PW4):- “1. Patient was in severe pain and he complained of pain in the left side of lower chest upper abdomen and expigaltrium. Advised X-ray. 2. Reddish tender swelling on the upper part of right leg in knee. X-ray was advised. 3. Reddish contusion 8 cm x 2 cm on the front of lower part of right thigh on upper part of knee. Advised X-ray.” 7 Criminal Appeal No.217-DB of 2001 After X-ray, as deposed by Dr.Suresh Kumar (PW2), injury No.1 was found fracture of 9th rib, injury No.2 was found facture of tibia. 3rd injury was found simple in nature. PW3 has further stated that on admission of the injured, mentioned above, he sent information vide chit (Ex.PE) to SHO Police Station Sangrur. It has come on record that police officials of Sangrur police station then sent a wireless message to police station Dirba. ASI Labh Singh stated that it was a night time, he could not go to Sangrur immediately, however, on next day, he went there and recorded statement of Chhota Singh (PW4), after getting opinion about his fitness from the doctor. Jit Singh, in the meantime, had been shifted to Rajindra Medical Hospital at Patiala, where he succumbed to his injuries on 7.4.1997 at 1.00 a.m. Taking of the injured to the hospital is very prompt. Doctor also sent intimation of admission of the injured in the hospital to the police. If the police officials have failed to act in an efficient manner and there was a delay in recording the FIR, on account of negligence of the investigating officer, benefit of the same will not go to the appellants- accused. Post mortem on the dead body of Jit Singh was conducted by Dr.S.S.Oberoi on 7.4.1997 at 10.20 a.m., ,who noted the following injuries on person of the deceased:- “1. A contusion 10 x 8 cm on the right parietal region of the head. On dissection the ,underlying sub cutaneus tissue was contused. The bones of the skull under the contusion were fractured and extra dural heamatoma was presented 8 x 6 x 1 cm on the corresponding part of the brain. 8 Criminal Appeal No.217-DB of 2001 2. The upper eye lid of right side and the surrounding tissues were contused. 3. A stitched wound 3 cm long was present on the left shin 8 cm below the knee joint.” Injuries were found ante mortem in nature. Doctor has specifically stated that cause of death was due to head injury, which was sufficient to cause death in an ordinary course of nature. The case of the prosecution has further been supported by PW5 Mohinder Singh. Only because in their statements PW4 and PW5 had made some improvements, their testimonies cannot be discarded. PW4 is an injured witness. He was immediately taken to the hospital, where he was medico-legally examined by PW3. He has suffered two fractured. In the witness box, both the witnesses have stated that Nishan Singh appellant used Ghop as a dang, whereas it was not so stated in the FIR. Be that as it may, improvement is not so serious, on the basis of which, any benefit can be extended to the appellants. Further contention of counsel for the appellants that for want of recovery of weapons of offence from Nishan Singh and Balwant Singh, case against them was not proved on record, is liable to be rejected. In view of vivid eye witness account, non-recovery of weapons from them becomes insignificant. The prosecution has proved on record that there was a motive with the appellants-accused to cause injuries to Chhota Singh and Jit Singh. In case of eye witness account, motive becomes a pale shadow and the prosecution’s case, if proved, cannot be discarded on this score alone. Now it is to be seen whether all the appellants had common intention to commit murder of Jit Singh and cause injuries to Chhota Singh (PW4) or not? 9 Criminal Appeal No.217-DB of 2001 As per case of the prosecution, Chhota Singh’s presence at the spot, is by chance. He had gone to a shop to purchase house hold articles, where he met the appellants-accused. Balwant Singh appellant was armed with gandasi, Balkar Singh and Sahib Singh @ Bikka were armed with dang and Nishan Singh with a Ghop. As per case of the prosecution, Balkar Singh appellant gave a dang blow to Chhota Singh, which hit below his knee of right leg. Balwant Singh gave a gandasi blow to Chhota Singh (PW4), from its reverse side, on the right leg. When Jit Singh intervened Sahib Singh @ Bikka gave a dang blow on his head and when he was lying on the ground, Balkar Singh gave a dang blow on his right eye and Nishan Singh a Ghop blow on his left knee. Sahib Singh gave a dang blow on left flank of PW4. Sequence of events clearly shows that two appellants were armed with deadly weapons, however, they used these weapons from reverse side. Except one injury on head of the deceased Jit Singh, other injuries to the deceased and injuries to PW4 were on non-vital part of the body. Dr.Parbhat Kumar (PW3) has stated that injury No.1 on person of Jit Singh, by a violent fall on hard surface, cannot be ruled out. No external mark of injury corresponding to injury No.1 was visible to the eyes but on feeling by hand tenderness was noticed. He further stated that injury Nos.2 and 3 to Chhota Singh (PW4) by violent fall against surface cannot be ruled out. From facts on record, it appears that the appellants may have common intention to cause injuries, but certainly they had no common intention to cause murder of Jit Singh, who was only an intervener. The appellants had started attack on Chhota Singh and at that time Jit Singh was nowhere in sight. Under these circumstances, appellants Balwant Singh, Balkar Singh and Nishan Singh cannot be held vicariously liable for any act done by 10 Criminal Appeal No.217-DB of 2001 Sahib Singh @ Bikka Singh whose one blow on head of Jit Singh proved fatal. Under similar circumstances, a Division Bench of this Court in Criminal Appeal No.764-DB of 2007, decided on 18.11.2009 titled as Surjit Singh and others versus State of Punjab, has observed as under:- “It has come on record that A1 and A2 were armed with gandasi, a heavy weapon, two others were armed with tangali a multi pronged pointed agricultural instrument, which can be used as a weapon and others were armed with sticks. It is evidence of the prosecution that despite being armed with those weapons, none of the assailants made any attempt to cause injuries to the deceased from sharp side or pointed side of the weapons held by them. Even those weapons were used from the blunt side. PW9 has specifically stated that all the 11 injuries were the result of blunt weapon. PW8 Dr.Surinder Kumar, who had conducted post-mortem on the dead body, has stated that all the injuries, except injury No.1 and 5, were simple in nature. Injury No.1 was fracture of both bones of the left forearm and injury No.5 was fracture of 4th and 5th ribs of left side of the deceased. In his opinion, this witness has not indicated any one injury or the injuries together were sufficient to cause death individually. It was only said that cause of death was due to multiple injuries which led to hemorrhage and shock. Both the witnesses have not stated that anyone injury out of the injuries received by the deceased was sufficient to cause death. It has also come on record that all the injuries were on non-vital part of the body. 11 Criminal Appeal No.217-DB of 2001 Despite being armed with sharp edged/ pointed weapons, no incised wound was caused to the deceased. Under these circumstances, this Court feels that offence committed by A1 to A7 would not fall within the purview of Section 302 IPC.” A similar matter came up for consideration before their Lordships of the Hon’ble Supreme Court in Bhajan Singh and others v. the State of Punjab, 1978 CAR 330 (SC). In that case also, many injuries were caused to the deceased. Except one injury, all the injuries were on non-vital part of the body. One was fracture of scalp, which was opined by the doctor to be sufficient to cause death. After noting that, their Lordships of the Hon’ble Supreme Court opined as under:- “In the background of the incident, it is clear that due to the anxiety of the accused to harvest the wheat crop the occurrence took place. Taking, into account all the circumstances we find the common object of the unlawful assembly was to cause a grievous hurt. It has to be considered whether all the accused should be found guilty of an offence under section 302, 149, for the injury caused by one of the members of the unlawful assembly which is found to be sufficient in the ordinary course of nature to cause death. None of the appellants has been specifically charged under section 302 and it is therefore not possible to hold any one of the appellants guilty of causing the injury which is sufficient, in the ordinary course of nature, to cause death. We are also not satisfied from the circumstances that the injury was caused in prosecution of common object of the assembly or that the members of the 12 Criminal Appeal No.217-DB of 2001 assembly knew it likely to be caused in prosecution of the common object. On a consideration of all the circumstances we are satisfied that the common object of the unlawful assembly was to cause grievous injury with dangerous weapons, an offence punishable under section 326.” By taking note of the evidence on record, their Lordships converted the conviction and sentence awarded under Section 302/149 IPC to Section 326 IPC read with Section149 IPC. Similarly, in State of Punjab v. Balkar Singh and others, 1998 Supreme Court Cases (Cri) 399, by taking note of a fact that all the injuries were on non-vital part of the body of the deceased, their Lordships of the Hon’ble Supreme Court held that the offence committed would fall within the purview of Section 304 part-II IPC. In that case, it was observed as under:- “the next question which crops up for considerations:- what offence (s) have they committed. The guidance in that regard is available from the medical evidence. It is plain therefrom that none of the 11 injuries caused on the deceased was by itself sufficient to cause death in the ordinary course of nature and none of those injuries as said before, was inflicted on a vital part of the body. All the same, the cumulative effect of the injuries did bring about the result of the death of the deceased and the accused-respondents could well be ascribed the guilty knowledge that their assault on the deceased could bring them within the grip of Section 304 Part II IPC. We, therefore, instead of restoring the conviction of the Court of Session under Sections 302/149 IPC convict the accused- 13 Criminal Appeal No.217-DB of 2001 respondents for offence under Section 304 Part II IPC, for which we sentence them to 5 years’ RI each.” Same is the situation in this case. Except one injury on head of the deceased, other two injuries to him, are not on vital part of the body. Injuries to Chhota Singh (PW4) are also on non-vital part of the body. Under these circumstances, this Court feels that no offence is made out under Section 302 IPC against Sahib Singh @ Bikka and other appellants- accused. For any act done by Sahib Singh @ Bikka, in view of facts mentioned above, others cannot be held vicariously liable for his act. It is proved on record that the appellants had an intention only to cause injuries to PW4 Chhota Singh and his son Jit Singh. Accordingly, this appeal is partly allowed. Charge against all the appellants under Section 302 IPC is set aside. Appellant No.4 Sahib Singh is held guilty and is convicted for commission of an offence under Section 304 Part-I IPC. He is sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.30,000/-. In default, he shall undergo RI for six months. He is also held guilty and convicted under Section 324 IPC. His sentence is reduced to the one already undergone by him (more than five years). Balkar Singh appellant No.2 is held guilty for his individual act. He is convicted and sentenced for commission of an offence under Section 325 IPC. His sentence is reduced to the already undergone by him. He is directed to pay a fine of Rs.15,000/- and in default to undergo RI for a period of six months. He is also convicted and sentenced under Section 323 IPC and his sentence is reduced to the one already undergone by him (more than five years). Nishan Singh –appellant No.3 is convicted and sentenced for commission