Case: Swarn Kaur Vs. Gurmukh Singh &amp; Others

when his body was shown to them at the rivulet by P.W.19, was a serious circumstance, which has to be considered and held against the accused. 34. With that when we come to the next question as to the failure of the accused in not having come forward with any acceptable explanation for not taking any steps by them to trace the missing of the deceased, except stating that they reported him missing to the police is yet another circumstance creating serious doubts about the credibility in their stand. When admittedly, the deceased was engaged at the instance of A2 for the purpose of cooking food for the pilgrims and subsequently he was found missing when the tour programme was on going, we fail to understand as to how by taking a mere stand that such missing of the person was simply reported to the police without any further action taken in that respect is one other circumstance to be considered against the accused. When the deceased was engaged and was taken along with the pilgrims, which was led by the second accused, it was the responsibility of the second accused to have shown what were the earnest efforts taken by him to trace the whereabouts of the deceased. Unfortunately, except the mere statement that along with A3 and A4, he went to Shah Talai police station and reported about the missing of the deceased, nothing else was shown as to what were the further steps taken by him to trace the deceased. Further, the evidence of P.W.2 that the accused offered to compensate the missing of the deceased was yet another circumstance to be taken into account while considering the guilt of the accused. 35. Therefore, the said conduct of the accused would only go to show that the said circumstance is also one other relevant circumstance, which has to be considered along with the other circumstances, which were all found proved and adverse against the accused. 36. With that when we come to the last of the circumstance viz., the version of P.W.2 and P.W.12 that after reporting about the missing of the deceased to them by A2 and A3 on 01.04.2002, on 04.04.2002, they came and reported that the deceased was no more and that they were prepared to pay a sum of Rs.1,00,000/- by way of compensation, was last of the circumstance which if accepted to be true would be a clinching piece of circumstance, that would complete the other chain of circumstances to fasten the alleged offence against the accused persons. The Trial Court which had the advantage of watching the demonour of P.W.2 and P.W.12, has noted that no serious answer was elicited from the mouth of the said witnesses, as regards the alleged offer of compensation made by A2 and A4. There is no valid reason to interfere with the said conclusion of the Trial Court in the absence of any other legally acceptable counter evidence to doubt the version of P.W.2 and P.W.12. Therefore, if A2 and A4, had made an attempt and offered the compensation of Rs.1,00,000/- after informing P.W.2 about the death of the deceased, the only conclusion which could be drawn based on the other chain of circumstances, which we have found to have been established without any scope of contradiction, was the culpability of the accused in having eliminated the deceased by inflicting the injuries upon him, as narrated by P.W.6 and as found to have existed by the expert witness viz., the postmortem doctor P.W.23 in Ex.P.W.23/A. 37. We are convinced that every one of the circumstances which were demonstrated to have been proved, sufficiently established the guilt of the accused and consequently, the conclusion of the Trial Court in having found the accused guilty was perfectly justified and the interference with the same by the High Court without sufficient reasoning was therefore, liable to be set aside. 38. Now, we address as to the nature of the offence committed by the accused. PW-23, Dr. A.K. Sharma, who conducted the post-mortem examination, has found the cause of death to be the head injury. But, the question is whether that itself would be sufficient to hold the accused guilty of the offence under Section 302 of the Indian Penal Code. The injuries found on the person of the deceased, as quoted in the preceding paragraph of the judgment, shows presence of only a small contusion of the size of 2 cm x 1 cm on the xiphisternum and the underlying bone was also found to be normal. 39. It is well settled that intention is always lodged in the mind of the accused but, to gather the intention one of the relevant factors which the court looks into is the nature of injury inflicted on the deceased. In our opinion, from the nature of injuries found on the person of the deceased it cannot safely be said that the accused assaulted the deceased with intention to cause such injury so as to cause death. It appears to us that the accused persons were upset by the poor quality of food cooked by the deceased and, therefore, assaulted him. The nature of injury or the weapon used do not suggest that the accused assaulted him with the intention of causing death. However, we are of the opinion that the accused knew that the injury inflicted by them is likely to cause death. Hence, in our opinion, the accused shall be liable to be convicted for offence under Section 304 Part II of the Indian Penal Code. In the facts and circumstances of the case, we are of the opinion that sentence of 7 years’ rigorous imprisonment each and fine of Rs.50,000/- each shall meet the ends of justice. Each of the accused shall deposit the fine amount within three months failing which they shall suffer imprisonment for a further period of one year. Out of the fine amount the appellants shall be paid a sum of Rs.2 lakhs. 40.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We are convinced that every one of the circumstances which were demonstrated to have been proved, sufficiently established the guilt of the accused and consequently, the conclusion of the Trial Court in having found the accused guilty was perfectly justified and the interference with the same by the High Court without sufficient reasoning was therefore, liable to be setis well settled that intention is always lodged in the mind of the accused but, to gather the intention one of the relevant factors which the court looks into is the nature of injury inflicted on the deceased. In our opinion, from the nature of injuries found on the person of the deceased it cannot safely be said that the accused assaulted the deceased with intention to cause such injury so as to cause death. It appears to us that the accused persons were upset by the poor quality of food cooked by the deceased and, therefore, assaulted him. The nature of injury or the weapon used do not suggest that the accused assaulted him with the intention of causing death. However, we are of the opinion that the accused knew that the injury inflicted by them is likely to cause death. Hence, in our opinion, the accused shall be liable to be convicted for offence under Section 304 Part II of the Indian Penal Code. In the facts and circumstances of the case, we are of the opinion that sentence of 7rigorous imprisonment each and fine of Rs.50,000/- each shall meet the ends of justice. Each of the accused shall deposit the fine amount within three months failing which they shall suffer imprisonment for a further period of one year. Out of the fine amount the appellants shall be paid a sum of Rs.2 lakhs.