Criminal Appeal No.432-DB of 1998 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No.432-DB of 1998 Date of decision: February 28 ,2008 1. Harjit Singh son of Mangat Ram aged 24 years, resident of Village Khokhar,Tehsil and District Gurdaspur 2. Sukhwant Singh son of Mangat Ram, aged 26 years, resident of village Khokhar, Tehsil and District Gurdaspur. 4. ...............................................appellants. Versus State of Punjab .............................................respondent. CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR HON'BLE MR.JUSTICE SHAM SUNDER Present: Mr. M.S.Bedi, Advocate, for the appellants. Mr. S.S.Bhinder, Additional Advocate General,Punjab. Sham Sunder,J. This appeal is directed against the judgment of conviction and the order of sentence dated 9.9.1998, rendered by the Court of Sessions Judge, Gurdaspur, vide which, it convicted the appellants/accused and sentenced them as under : Name of the appellant offences under sentence awarded which convicted Harjit Singh 302 IPC To undergo rigorous imprisonment for life and Criminal Appeal No.432-DB of 1998 2 to pay fine of Rs.2000/-. In default of payment of fine, to undergo further R.I. for three months. 323/34 IPC To undergo R.I. for four months Sukhwant Singh 302/34 IPC To undergo rigorous imprisonment for life and to pay fine of Rs.2000/-. In default of payment of fine, to undergo further R.I. for three months. 323 IPC to undergo R.I. for six months. All the substantive sentences were ordered to run concurrently. 2. The facts, in brief, are that on 2.5.1993 at about 11 p.m.,Sucha Singh was sleeping in his house. In the meantime, he heard noise of his cousin, Mangat Ram, living in the nearby house. Thereafter, Sucha Singh along with his brother,Babbal Kumar, went to the house of Mangat Ram and found Harjit Singh and Sukhwant Singh,his sons, accused/appellants, quarrelling with each other. Sucha Singh and Babbal Kumar intervened to rescue, when Harjit Singh,accused, gave a small kirpan blow on the neck of Babbal Kumar, as a result whereof, Babbal Kumar fell down. Sukhwant Singh, accused, inflicted dang blow on the head of Sucha Singh. An alarm was raised which attracted Raj Kumar,brother and Krishna Devi, mother of Babbal Kumar to the spot. Thereafter, the accused decamped from the spot with their respective weapons. Babbal Kumar succumbed to the injuries at the spot. Sucha Singh was taken to the Civil Hospital, Gurdaspur, where he was medicolegally examined. On the basis of his statement, FIR was registered. The accused were arrested. After the completion of investigation, they were challaned. 3. On their appearance, in the court of the Committing Magistrate, the accused were supplied the copies of documents, relied Criminal Appeal No.432-DB of 1998 3 upon by the prosecution. After the case was received by way of commitment, charge under Sections 302, 302 read with Section 34, 323, and 323 read with section 34 of the Indian Penal Code, was framed against the accused, to which they pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Jagir Singh PW1, Sucha Singh PW2,Krishna Devi, mother of Sucha Singh, PW3, Constable Balwant Rai PW4, Dr.R.K.Attri PW5, Dr.Ashok Hastir PW6, and S.I. Prabhdev Singh PW7. Thereafter, the Public Prosecutor for the State closed the prosecution evidence. 5. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Harjit Singh, accused, in his statement under Section 313 Cr.P.C. pleaded as under : “I am innocent. My brother Sukhwant Singh is residing in Madhya Pradesh since long and at the time of occurrence, he had come to village for harvesting. On the day of occurrence, I, my brother Sukhwant Singh and my father Mangat Ram were harvesting wheat crop and were in the fields. On 2.5.1993, at about 11 p.m. my father Mangat Ram went to our house in the village where my sister Narinder Kaur was alone present in the house. When my father Mangat Ram entered the house, he saw deceased Babbal Kumar in a compromising position with Narinder Kaur on the cot in the court-yard of the house. Babbal Kumar was nude and Mangat Ram could not control himself and hurled a broken bottle towards Babbal Kuma, which hit him on the neck. Babbal Kumar went to his house, where he later on, succumbed to the Criminal Appeal No.432-DB of 1998 4 injuries. I and my brother Sukhwant Singh were not present in the house at the time of occurrence and we have been implicated only to give twist to the prosecution story and to save their skin. Sucha Singh was also not present at the time of occurrence and he subsequently self-suffered injuries in order to become a stamp witness to the occurrence.” Sukhwant Singh also took up the same pleas as were taken by Harjit Singh in his statement under Section 313 Cr.P.C. 6. In their defence, the accused examined Mangat Singh,DW1. Thereafter they closed their defence evidence. 7. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 8. Feeling aggrieved, the instant appeal, was filed by the appellants/accused. 9. We have heard the Counsel for the parties, and have gone through the evidence and record of the case,carefully. 10.. Learned Counsel for the appellants contended that the defence version was more probable than the prosecution version. He further contended that under these circumstances, the trial Court was wrong in disbelieving the defence version, without any valid reason. It was further contended by the counsel for the appellants, in the alternative,that if this Court came to the conclusion, that the defence version was rightly disbelieved, by the trial Court, then, at the most, only an offence punishable under Section 304 Part II IPC, was committed by Harjit Singh, appellant, as there was no intention on the part of the said accused to cause such bodily injury, on the person of Babbal Kumar,deceased,as was likely to result into his death. He further contended that there was no pre- concert between the accused, as it was a sudden fight,and, as such, the Criminal Appeal No.432-DB of 1998 5 provisions of Section 34 of the Indian Penal Code, could not be invoked. 11. On the contrary, the Counsel for the respondent, supported the judgment of conviction and the order of sentence, rendered by the trial Court. 12. Coming to the first contention of the Counsel for the appellants, that the defence version, was more probable, than the prosecution version, and the trial Court was wrong in disbelieving the same, it may be stated here, that the submission of the Counsel for the appellants, in this regard, does not appear to be correct, as would be discussed hereinafter. During the course of cross-examination of Sucha Singh, injured,PW2, and in the statements under Section 313 Cr.P.C., the case set-up by the accused, was to the effect, that, on the night of occurrence, Narinder Kaur daughter of Mangat Ram, was all alone, in the house, when Babbal Kumar intentionally went to that house. It was further the case of the accused that when Mangat Ram came from the fields, in the house, he saw Babbal Kumar in a compromising position, with Narinder Kaur, and caused injury to him ( Babbal Kumar) by hitting him with a broken bottle on the neck. The case so set up by the accused, during cross-examination of Sucha Singh as also in their statements under Section 313 Cr.P.C., was denied by him ( Sucha Singh ). Mangat Ram, father of Narinder Kaur was examined as DW1, who stated that when he came back to his house at about 11 p.m., from the fields, he saw Babbal Kumar, in a compromising position, with Narinder Kaur, his daughter, and then he hurled a broken bottle which hit the neck of Babbal Kumar, in the street. He also stated that his sons were not present, in the house, at that time. During the course of cross-examination, Mangat Ram stated that he had been approaching the police and senior officers, but had not filed a written complaint, regarding the false implication of his sons. In case, the injuries were caused, on the person of Babbal Kumar by Mangat Ram, with Criminal Appeal No.432-DB of 1998 6 broken bottle, on account of the fact that he allegedly found him (Babbal Kumar) in compromising, position with his daughter, on the night of occurrence, then he being the father of said Narinder Kaur, would have been the first person, to make his statement before the police, during the course of investigation. In case the police was not ready to hear him or record his statement, then he could file a written complaint before the Senior Police Officers, narrating all the facts, stated by him, in his statement as, DW1. It appears that he neither made any statement before the police, during the course of investigation, narrating the facts, stated by him, in his statement as DW1, nor made any complaint containing the aforesaid facts. In case the version set up by him, in his statement as, DW1, was correct, then he could also file a criminal complaint before the Ilaqa Magistrate against Babbal Kumar, that he came to his house and was found in compromising position with his daughter Narinder Kaur which act amounted to the commission of offence under Section 376 I.P.C.,and on account of sudden provocation by throwing a broken bottle at him in the street, an injury was caused by him on his person. He,however, did not appear to have filed such a complaint, in the Court. If the father of Narinder Kaur could appear in the Court as, DW1, and state that he found her in compromising position, with Babbal Kumar ( now deceased), the things had become public and nothing remained secret. In these circumstances, even Narinder Kaur could be examined, as a witness, who could depose, as to whether, Babbal Kumar was in a compromising position, with her, on the night of occurrence, and when her father saw him, in that position,he caused injuries on his person. It could be imagined that such an alleged act, on the part of Babbal Kumar could not be made public, on account of the reason that honour of the family, and of the unmarried girl, was at stake and that was required to be saved. Since everything had become open, during the course of cross-examination of Sucha Singh, as also in Criminal Appeal No.432-DB of 1998 7 the statements of the accused under Section 313 Cr.P.C. and in the statement of Mangat Ram,father of Narinder Kaur, DW1, then she could be said to be the best witness, to depose with regard to alleged offence of rape committed with her by Babbal Kumar ( deceased). Why Narinder Kaur was not examined, by the accused, to prove their version, is not known. It means that such an incident, as deposed to by Mangat Ram, did not take place, and that was why Narinder Kaur, was not examined,as a witness. Even no medical examination of Narinder Kaur, was got conducted nor any report in regard thereto was produced and proved. Narinder Kaur is the daughter of Mangat Ram. She is, thus, daughter of the uncle of Babbal Kumar (now deceased). In the ordinary course of things, no boy will commit sexual intercourse, with his father's brother's daughter ( uncle's daughter). Even no blood was found, in the street, where Mangat Ram statedly hurled a broken bottle at the neck of Babbal Kumar. Even no broken pieces of bottle were found in the street. The trial Court even in para No.15 at page 13 of its judgment, held that the accused moved bail applications dated 17.6.1993 and 18.8.1993, wherein no plea was taken by them, that Mangat Ram saw Babbal Kumar, in a compromising position, with his daughter Narinder Kaur, upon which Babbal Kumar tried to run away, and, thus,he (Mangat Ram ) gave a broken bottle blow at his neck. The trial Court further observed, in this para, that the occurrence took place on 3.5.1993 but the defence version, referred to above, saw the light of the day, for the first time on 20.5.1994. In our opinion, the trial Court was not wrong, in coming to the conclusion that the defence version was a concocted one, and set up by the accused, at a belated stage, to save themselves, from criminal liability. The trial Court was also right in holding that Mangat Ram set up such a version while appearing as, DW1 to save his sons who are accused/appellants as in this case the blood turned thicker than the alleged honour of a young unmarried daughter.Since Mangat Ram very well knew Criminal Appeal No.432-DB of 1998 8 that Narinder Kaur will be married one day, and would settle in the house of her in-laws, whereas both his son, who are appellants/accused, were to remain with him throughout his life and support, maintin and look after him and his wife in old age. So he did not want his sons to incarcerate in Jail, even if he had to go to the extent of setting up a false defence of staking the honour of his young unmarried daughter. The defence version, thus, was not more probable than the prosecution version. The trial Court was right in rejecting the same. The submission of the Counsel for the appellants, in this regard,being without merit, must fail, and the same stands rejected. 13. Even if the defence version, is found to be either not proved, or false, the prosecution is bound to prove its case, beyond a reasonable doubt. Sucha Singh, injured, in this case, when appeared as, PW2, in clear cut terms stated that he was sleeping, in his house, when he heard the noise from the house of Mangat Ram. He and Babbal Kumar went there. At that time, Harjit Singh and Sukhwant Singh accused were quarrelling with each other.When they intervened and asked them not to quarrel, Harjit Singh directed Babbal Kumar to get aside. Harjit Singh then inflicted a small kirpan blow at the neck of Babbal Kumar, with the result that he (Babbal Kumar) fell down. When an alarm of “Mar Dita Mar Dita” was raised, Sukhwant Singh inflicted a dang blow, on the forehead and right leg of Sucha Singh. Thereafter the accused ran away. Krishna Devi,PW3, mother of Sucha Singh, also corroborated his statement, to the extent, that when she was attracted, on hearing the alarm, to the house of Mangat Ram, she saw Harjit Singh with a small kirpan, in his hand, and Sucha Singh with a dang. She further stated that injuries of Sucha Singh were bleeding, which were on his forehead and Babbal Kumar was lying injured. Further corroboration to their statements, was furnished by the medical evidence of Dr. Ashok Hastir,Distt. T.B.Officer, T.B.Centre, Gurdspur, Criminal Appeal No.432-DB of 1998 9 PW6, who conducted post mortem examination, on the dead body of Babbal Kumar on 3.5.1993 and found the following injuries on his person: 1. A 10 x 7 cm incised wound in the middle of the neck extending upwards and laterally to the left side obliquely with clotted blood coming out of the wound even on slight touch. The muscle fibres below the skin were cut and the left common carotid and left sub clavian vessels were cut. Hyoid bone was cut and the corresponding part of the oesophagus and trachea were cut. 2. 7 x 2 cm reddish brown contusion on the dorsum of the middle of the left forearm. It was obliquely placed. The doctor opined that the cause of death, in this case, was haemorrhage and shock, due to asphyxia, caused by the blood, entering the air passages due to injury No.1 in the throat which was sufficient to cause death, in the ordinary course of nature. Still further corroboration to the ocular version was provided by Dr. R.K.Attri,Emergency Medical Officer, Civil Hospital,Gurdaspur, who appeared as PW5.He examined Sucha Singh and found the following injuries on his person, which were simple in nature: 1. One lacerated wound on the middle of head, 2-1/2cms above the hair line, Size of the wound was 2-1/2 cm x ½ xm x scalp deep. Bleeding present. 2. An abrasion on the middle of right leg, size 2 cm x 0.3 cm. No doubt, Sucha Singh, injured , the stamped witness and Krishna Devi, Criminal Appeal No.432-DB of 1998 10 his mother, are relation witnesses. However, their presence at the time of occurrence, in the house of Mangat Ram, was most natural and probable. The occurrence took place at about 11 p.m. in the house of Mangat Ram which is just near the house of Sucha Singh. At that odd hour of the night, all the members of the family, were expected to be present, in the house, in the natural course. The mere fact that they are relation witnesses could not be said to be sufficient to disbelieve their statements once their presence at the time of occurrence was proved. They had no reason to falsely implicate the accused in the present case, as there was no previous enmity, between the parties. The trial Court was, thus, right in relying upon the cogent, convincing and trust-worthy evidence of Sucha Singh and Krishna Devi, duly corroborated by the medical evidence for coming to the conclusion, that the accused committed the crime. 14. Dilbagh Singh,SI, the Investigating Officer, died during the trial of the case, and therefore, he could not be examined. However, he prepared the rough site plan Ex.PK of the place of occurrence, which was proved by Prabhdev Singh SI, when he appeared as PW7. In Ex.PK, the place of occurrence has been shown to be the house of Harjit Singh son of Mangat Ram. It means that the occurrence took place in the house of Mangat Ram, Harjit Singh etc as the sons and the father were living jointly, in that house. However, the dead-body of Babbal Kumar was recovered from the courtyard of the house of Gian Chand, father of Sucha Singh, complainant. After Babbal Kumar was lying injured, it appears that he was brought to his house, by Sucha Singh, where he died. In these circumstances, the dead body of Babbal Kumar was found, in the house of Gian Chand, father of Sucha Singh, as per the inquest report,Ex.PJ, prepared by Dilbagh Singh SI. In these circumstances, the mere fact that the dead body of Babbal Kumar was found in the house of his parents did not mean that the occurrence took place there. This point has been Criminal Appeal No.432-DB of 1998 11 clarified, with a view to avoid confusion with regard to the place of occurrence. 15. Now coming to the factum, as to whether, the offence was committed, in furtherance of common intention, by the accused, or not. For convicting the accused with the aid of Section 34 of the Indian Penal Code, the prosecution was required to prove that there was a pre-concert between them. No doubt, from the facts, circumstances and evidence, on record,an inference of common intention, can be drawn. In the instant case, Sucha Singh, his brother and other family members were sleeping in their house, just nearby the house of Mangat Ram, father of the accused. On hearing alarm, from the house of Mangat Ram, Sucha Singh and his brother Babbal Kumar went there,being nearly related to him. They found both the accused, who are real brothers, quarrelling with each other, and when Babbal Kumar intervened, an injury on his neck with a small kirpan, was caused. Such a small kirpan is always carried by a gur sikh as a religious symbol. It was all of a sudden, that injury with a small kirpan on the neck of the deceased, was caused. There was no intention, on the part of Harjit Singh, to cause such bodily injury, on the person of the deceased which could cause his death. No exhortation was raised by any of the accused that Babbal Kumar and his brother be caught hold and taught a lesson or be killed for intervening in their quarrel. Sukhwant Singh accused did not catch hold of Babbal Kumar. No injury was caused by Sukhwant Singh, on the person of Babbal Kumar. It was proved from the evidence of record, that there was no previous enmity between the parties, but, on the other hand, they were having good relations.There was no repetition of injury, on the person of Babbal Kumar, deceased, at the hands of Harjit Singh, accused/appellant. If in a sudden quarrel, between Harjit Singh and Sukhwant Singh, an injury on the neck of Babbal Kumar who was an intervenor, was caused with a small kirpan, that did not prove the common Criminal Appeal No.432-DB of 1998 12 intention of the accused. In Gulab Singh V. State of Haryana 1998(1) RCR ( Criminal) 317, the deceased met the four accused by chance.The accused were armed with lathis, which were generally carried by villagers. The accused inflicted 18 injuries, on non-vital parts of the body of the deceased, except one, on his head, which proved fatal. The accused who caused the head injury was convicted, under Section 302 IPC. It was held that it could not be said that the remaining three accused, shared common intention. The facts of the aforesaid authority, are almost similar, to the facts of the present case. It is,therefore, held that accused Harjit Singh and Sukhwant Singh did not cause injuries, on the person of Babbal Kumar and Sucha Singh, in furtherance of common intention. The accused were,therefore, liable for their individual acts, and could not be convicted with the aid of Section 34 of the Indian Penal Code. The submission of the learned Counsel for the appellants, in this regard, being correct, is accepted. The trial Court was wrong in holding that the injuries were caused in furtherance of common intention. 17. Now coming to the question, as to which was the offence committed by the appellants/accused, it may be stated here that since an injury was caused on the person of Babbal Kumar, deceased, in a sudden fight, between the two accused, when he intervened, and there was no repetition of further injury, at the hands of the accused, on the person of the deceased, it could be said that no offence punishable under Section 302 of the Indian Penal Code was committed. Accused Harjit Singh caused injury with knowledge,on the person of Babbal Kumar deceased which was likely to cause death. In Jagrup Singh V. State of Haryana 1982 C.L.R. 301(SC), the accused found to have caused a solitary blow on the head of deceased with blunt side of a gandhala in the heat of moment, without pre-meditation and in a sudden fight. It was held that the case was covered by exception 4 to Section 300. The conviction was, accordingly, Criminal Appeal No.432-DB of 1998 13 altered to one under Section 304,Part II of the IPC from Section 302 IPC. In Smt.Sandhya Jadhav V. State of Maharashtra 2006(2) RCR (Criminal) 472, the accused inflicted one knife blow on the person of the deceased,in a sudden quarrel.The blow was not repeated. The deceased died. The accused had no pre-meditation to cause such an injury on the person of the deceased. He did not take undue advantage or acted in a cruel or unusual manner. It was held that the accused merely had the knowledge that injury inflicted by him was likely to cause death. The intention to cause death could not be inferred. Accordingly, the conviction under Section 302 IPC was set aside and altered to one under Section 304, Part II of the Code. The facts of the aforesaid authorities, are to a great extent, similar to the facts of the present case. In these circumstances, it is held that the trial Court, was