R.S.A. No. 2051 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.Ms. No. 6094 to 6096-C of 2009 and R.S.A. No. 2051 of 2009 Date of decision: 19.05.2009 Rajinder Singh @ Ginder Singh and others ....appellants versus Shelly Bansal and others ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. G.P. Singh, Advocate, for the appellants. *** VINOD K. SHARMA, J. (ORAL) C.M. No. 6094-C of 2009 This is an application under Section 151 of the Code of Civil Procedure for condoning the delay of 12 days in refiling the appeal. For the reasons stated in the application, C.M. is allowed and the delay of 12 days in refiling the appeal is ordered to be condoned. R.S.A. No. 2051 of 2009 (O&M) -2- C.M. No. 6095-C of 2009 This is an application under Section 149 of the Code of Civil Procedure for making good the deficiency in court fee. For the reasons stated in the application, C.M. is allowed and the delay in making good the deficiency in court fee is condoned. C.M. No. 6096-C of 2009 The applicants by way of the application want to place on record the copy of the judgment passed by this Court, which was duly exhibited as Ex. D-6 before the civil Court. The application under Section 151 of the Code of Civil Procedure is not competent to place on documents which are already exhibited, as the exhibited documents can also be looked into. No merit. Dismissed. R.S.A. No. 2051 and C.M. No. 6097-C of 2009 This regular second appeal is directed against the judgment and decree dated 18.11.2008 passed by the learned Courts below, decreeing the suit filed by the plaintiffs No. 2 to 4 claiming compensation on account of murder of Shri Harinder Kumar, their father. The case set up by the plaintiffs was that on 30.11.1995 at about 7.30/8.00 a.m., late Harinder Kumar, Anil Kumar, Shamsher Singh and Madan Lal went to the brick kiln at village Maddoke to give money to the labour. They found Rajinder Singh defendant No. 1 armed with a rifle, Rachhpal Singh and Kuldip Singh armed with 12 bore guns standing at the brick kiln along with their white tractor, make Escort. Some persons were loading bricks in the trolley. Late Harinder Kumar R.S.A. No. 2051 of 2009 (O&M) -3- stopped his car and asked the reason for lifting the bricks. Rachhpal Singh raised lalkara that Harinder Kumar etc. be taught lesson with the dispute regarding brick kiln, and for disturbing them from lifting bricks. At this, Rajinder Singh fired a shot from his rifle which hit late Harinder Kumar near the left side of his nose and right ear. Rachhpal Singh and Kuldip Singh also fired shots from their respective guns. Madan Lal etc. raised alarm. Late Harinder Kumar fell down and the remaining persons tried to look after late Harinder Kumar. The defendants ran away from the scene after firing. Late Harinder Kumar was brought to the Civil Hospital, Moga, where he was declared brought dead. It was pleaded that the motive of murder was that there was a dispute regarding brick kiln between the parties. Suit was contested by filing joint written statement wherein preliminary objections were taken that the plaintiffs had no locus standi to file the suit. The murder of late Harinder Kumar by the defendants was denied. It was pleaded that defendant No. 1 and his wife had a joint brick kiln at village Maddoke with Harinder Kumar and Anil Kumar. Late Shri Harinder Kumar and Anil Kumar were not rendering any accounts to defendant No. 1 and his wife. On 30.11.1995, they had gone to the brick kiln for counting of bricks for rendition of accounts. Late Harinder Kumar and Madan Lal armed with double barrel gun, Devinder Pal armed with dah and Anil Kumar armed with a 315 bore rifle came there. Late Harinder Kumar raised lalkara, as to what they were doing. Shri Madan Lal directed his gun towards Rajinder Singh, who in order to save himself went behind Mohinder Singh. Shri Madan Lal fired at him, which hit on the right leg of Shri Rajinder Singh. Shri Devinder Pal R.S.A. No. 2051 of 2009 (O&M) -4- caused injuries to Mohinder Singh with dah. Harinder Kumar grappled with Rajinder Singh and Harinder Kumar exhorted Anil Kumar, who was armed with 315 bore rifle by asking as to for what he was waiting, to fire at Rajinder Singh. Thereon, Anil Kumar fired at Rajinder Singh, which hit on the left eye of Harinder Kumar accidently and consequently he died. Their liability to pay compensation was denied. Madan Lal, Anil Kumar and others were tried under Sections 307, 326 and 34 of the Indian Penal Code for causing injuries to Rajinder Singh and Mohinder Singh. The suit was claimed to be bad for mis-joinder of necessary parties and also that the suit was not maintainable in the present form. The plea of estoppel was also raised. On merits, it was pleaded that defendant No. 1 has filed a suit for injunction and for rendition of accounts, defendant No. 2 was the village sarpanch and had no concern with the brick kiln, whereas efendant No. 3 was said to be an employee and were further said to be falsely implicated in the criminal case to harass the whole family. The defendants never caused any injury to Harinder Kumar. It was said that the death had occurred on account of his brother Anil Kumar. It was denied that Gurdev Singh and Gurpreet agreed to pay Rs.1,68,000/- to Devinder Pal to become the sole owners of the brick kiln at Ajitwal. It was alleged that late Harinder Kumar had all the bad habits, he used to take every sort of intoxicants and he had links with criminals. Other averments on merit were denied. Both the parties led evidence, however, appellant-Rajinder Singh chose not to appear in the witness box, though it was specifically alleged that he was the person who had fired with rifle which resulted in R.S.A. No. 2051 of 2009 (O&M) -5- the death of late Harinder Kumar. The learned Courts below on appreciation of evidence held that death of late Harinder Kumar was caused by the defendants. Though, compensation claimed was Rs.20,00,000/-, the learned Courts below keeping in view the age and income of late Harinder Kumar, decreed the suit for Rs.3,00,000/-. The learned Courts below held that plaintiffs No. 2 to 4 had locus standi to maintain the suit, whereas claim qua plaintiff No. 1 was declined, as she had re-married. Mr. Gurinder Pal Singh, the learned counsel appearing on behalf of the appellants contends, that the appeal raises the following substantial questions of law: - "1. Whether the judgment and decree passed by the learned Courts below is based on no evidence, thus, perverse? 2. Whether in view of the finding recorded in criminal Court on the same incident, could the civil suit filed by the plaintiff/respondents be decreed?" In support of the substantial questions of law, the learned counsel for the appellants referred to the judgment of the learned criminal Court to contend that the version set up by the plaintiffs was not believed by the learned criminal Court, and defendants were acquitted by giving benefit of doubt. He made special reference to the finding recorded by the learned criminal Court in coming to the conclusion that the injury was said to have been caused with the rifle, whereas none of the persons had rifle with them. The version set up by the plaintiff/respondents, therefore, be believed in civil suit to fasten the R.S.A. No. 2051 of 2009 (O&M) -6- liability on the appellants, to decree the suit. It is also the contention of the learned counsel for the appellants, that the finding recorded by the learned Courts below cannot be accepted, as no positive finding has been recorded as to who caused the fatal injury to deceased Harinder Kumar and, thus, finding being based on no evidence is perverse and liable to be reversed. It is also the contention of the learned counsel for the appellants, that though normally the findings of the learned criminal Court are not binding on the civil court, the civil Court was bound to consider it and give reason to differ with the findings recorded by criminal Court. The contentions of the learned counsel for the appellants cannot be accepted. The findings have been recorded by the learned Courts below on appreciation of evidence, wherein it was specifically pleaded that the injury was caused by Rajinder Singh with his rifle. In spite of evidence having been led, he chose not to appear in the witness box to deny and lead evidence to controvert evidence led by plaintiffs/respondent but depended on the version of other witnesses. It is well settled law, that the concurrent findings of fact recorded by the learned Courts below on appreciation of evidence are not open to challenge in the regular second appeal even if the possibility of forming different view is possible unless the finding is held to be perverse. The finding recorded by the learned Courts below on appreciation of evidence cannot be said to be one which could not be arrived at, as contended. It is also not disputed that findings of criminal Court are not binding on civil Court. The findings have been recorded on evidence led R.S.A. No. 2051 of 2009 (O&M) -7- before civil Court by proving that fatal injury was caused by appellant No. 1 with rifle. The substantial questions of law raised are answered against the appellants. No merit. Dismissed. (Vinod K. Sharma) Judge May 19, 2009 R.S.