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SUCHA SINGH versus STATE OF PUNJAB

High Court of Punjab and Haryana, Chandigarh

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Sucha Singh v. State of Punjab - CRA-D-210-DB-2004 [2006] RD-P&H 8029 (28 September 2006)

Crl. Appeal No.210-DB of 2004 1

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Date of decision : 20.9.2006

(1). Crl. Appeal No.210-DB of 2004.

1. Sucha Singh son of Lakhmir Singh,

2. Jaskaran Singh son of Arjan Singh,

3. Paramjit Singh son of Dalip Singh, all residents of village Gursar Jodhan, Tehsil Malout, District Muktsar.

....Appellants

Versus

State of Punjab ...Respondent

(2). Crl. Appeal No.229-DB-2004.

1. Gajjan Singh son of Lakhmir Singh,

2. Balkar Singh son of Lakhmir Singh,

3. Daljit Singh son of Gajjan Singh, all residents of village Gursar Jodhan, Tehsil Malout, District Muktsar.

....Appellants

Versus

The Punjab State ...Respondent

(3).Crl. Appeal No.571-DBA of 2006.

Gajjan Singh son of Lakhmir Singh son of Kapur Singh, resident of Gurusar Jodha, Tehsil Malout, Distt. Muktsar.

Versus

State of Punjab ...Respondent

Crl. Revision No.1176 of 2004.

Swaran Singh son of Hansa Singh, R/o Village Gurusar Jodha, Tehsil Malout, District Muktsar.

...Petitioner

Crl. Appeal No.210-DB of 2004 2

Versus

State of Punjab and others ...Respondents Coram: Hon'ble Mr. Justice Virender Singh Hon'ble Mr. Justice A.N. Jindal

Present : In Crl. A.No.210-DB of 2004

Mr. APS Doel, Advocate, for the appellants Mr. M.S. Sidhu, Sr. DAG, Punjab

In Crl.A.No.229-DB of 2004

Mr. APS Doel, Advocate, for the appellants Mr. M.S.Sidhu, Sr. DAG Punjab

In Crl.A.No.571-DBA of 2006.

Mr. APS Doel, Advocate for the appellants Mr. M.S. Sidhu, Sr. DAG Punjab.

Mr. I.S. Mann, Advocate for respondents No.2 to 4.

In Crl. Rev.No.1176 of 2004

Mr. H.S. Gill, Sr.Advocate,with Mr.R.K.Dhiman, Adv for the petitioner

Virender Singh J.

Vide this judgment, we are disposing of the aforesaid three appeals and a criminal revision.

Mr. Doel at the very outset submits that Sucha Singh son of Lakhbir Singh (appellant in Criminal Appeal No.210-DB of 2004) had died during the pendency of the appeal and, therefore, his appeal stands abated. Factum of death of Sucha Singh appellant is admitted by the State counsel. We, therefore, are left with five appellants namely Jaskaran Singh, Paramjit Singh, Gajjan Singh, Balkar Singh and Daljit Singh.

We have also felt the necessity of disclosing another fact Crl. Appeal No.210-DB of 2004 3

that a complaint dated 17.7.2002 was filed by Gajjan Singh son of Lakhbir Singh appellant against Swaran Singh and two others (respondents No.2 to 4 in Crl. Appeal No.571-DB of 2006) under Sections 307, 326, 325, 324, 323/34 IPC and before passing the impugned judgment of conviction, the learned Sub Divisional Judicial Magistrate, Malout had already issued the process against the accused vide order dated 25.11.2003. The said complaint case was not decided with the main State case although the same had arisen from the same occurrence. However, Swaran Singh and others have now been acquitted vide impugned judgment of learned Sub Divisional Judicial Magistrate, Malout dated 25.4.2006. Thereafter, an appeal was filed by Gajjan Singh in this court and after grant of special leave under Section 378 (4) of the Code of Criminal Procedure, the same was registered as Criminal Appeal No.571-DBA of 2006 and was ordered to be heard with the main Criminal Appeal No.210-DB of 2004.

The conviction and the sentence recorded by the learned trial Court vide impugned judgment dated 13.2.2004 of all the five appellants (to be referred to as 'the accused') in both the appeals is as under:-

(i) All the accused are convicted under Section 148 IPC and sentenced to undergo R.I. for 1 years each.

(ii) All the accused are convicted under Section 449 IPC Crl. Appeal No.210-DB of 2004 4

and sentenced to undergo R.I. for five years and to pay a fine of Rs.1000/-, in default thereof to further undergo R.I. for two months each.

(iii) Sucha Singh appellant has been convicted under Section 302 IPC and awarded sentence of life imprisonment and to pay a fine of Rs.2000/-, in default to further undergo R.I. for four months.

(iv) Jaskaran Singh, Paramjit Singh, Gajjan Singh, Balkar Singh and Daljit Singh: appellants have been convicted under Section 302/149 IPC and have been awarded sentence of life imprisonment and a fine of Rs.2000/-, in default to further undergo R.I. for four months each.

(v) Gajjan Singh appellant has been convicted under Section 324 IPC and sentenced to undergo R.I. for one year each.

(vi) Balkar Singh, Paramjit Singh, Daljit Singh and Jaskaran Singh appellants have been convicted under Section 324/149 IPC and sentenced to undergo R.I. for one year.

(vii) Gajjan Singh, Balkar Singh, Paramjit Singh, Daljit Singh and Jaskaran Singh appellants have been convicted under Section 323 IPC and sentenced to undergo R.I. for six months.

All the sentences were, however, ordered to run concurrently.

Crl. Appeal No.210-DB of 2004 5

Brief facts of the prosecution case:

Joginder Kaur alias Jenno is the deceased in this case. She was real sister of Harsha Singh father of Swaran Singh PW (complainant).

At the time of occurrence she was staying with her brother Harsha Singh. The occurrence had taken place in the house of Resham Singh son of Hardeep Singh. Hardeep Singh is real brother of Harsha Singh. We have prepared the pedigree table showing inter-se relation between the complainant party on one side and the accused party on the other side. Otherwise both the parties are not related to each other:

Complainant Party

Jangir Singh

|

-------------------------------------------------------------------------------------------------- | | | | | |

Gurdeep Singh Jeon Singh Harsha Singh Joginder Kaur Harbans Gurmail | | | @ Jenno Kaur Kaur

| | | (deceased)

| | |

Resham Singh | --------------------------------------------------------- (PW5) |

| | Swarn Singh Sukhwinder Satnam Singh

| | (comp.) PW4 Singh (PW)

----------------------- |

| | |

Lakhwinder Bindu |

Singh (PW6) |

|

------------------------------------------------------ | | |

Jaswinder Sukhraj Singh Nirmal Singh

Singh (PW)

Crl. Appeal No.210-DB of 2004 6

Accused party

Lakhmir Singh

|

----------------------------------------------------------------------------------------------- Gajjan Singh Sucha Singh Balkar Singh Arjan Singh Dalip Singh (A3) (since dead) (A4) | |

| | |

| Jaskaran Singh Paramjit

Daljit Singh (A5) (A1) Singh (A2)

The occurrence is of 18th

July, 1999 at 9.30 P.M.

According to the case as set up by the prosecution on the basis of a statement Ex.PA of Swaran Singh son of Harsha Singh (PW4) recorded by ASI Bohar Singh (PW10) at Civil Hospital, Malout on 19.7.1999 at 4.20 P.M., is that his father had two brothers who were dead. His family had helped one Sobha Singh in the election of Sarpanch and consequently he was elected. Sucha Singh appellant was defeated and as such he was inimical towards them. It is then alleged that on 18th

July, 1999 at about 9.30 P.M, he along with his cousin Resham Singh son of Gurdeep Singh (real brother of Harsha Singh), Lakhwinder Singh son of Resham Singh and another Swaran Singh son of Bahal Singh, who were living at their Farm House and had come for personal work, was sitting in Resham Singh's house.

Joginder Kaur who was residing with them, was also present in the house. An electric bulb was emitting light in the courtyard as well as in the Chaubara. Sucha Singh appellant armed with a Gandasa, a sharp edged weapon, Gajjan Singh armed with a Takua (sharp edged Crl. Appeal No.210-DB of 2004 7

weapon), Daljit Singh appellant with a Gandasa (sharp edged weapon), Jaskaran Singh alias Golla armed with a Kandhali (sharp pointed weapon), Balkar Singh with a Dang and Paramjit Singh with a Kasia, opened the door after giving a push and came inside. Balkar Singh raised a Lalkara asking Sucha Singh to give a Gandasi blow since Joginder Kaur was the root cause of the dispute. Daljit Singh and Jaskaran Singh caught hold of Joginder Kaur from her arms and Paramjit Singh gave a push to her. Then Sucha Singh gave a Gandasi blow on the head of Joginder Kaur hitting her near left ear. Jaskaran Singh gave a Gandali blow on the forehead of Joginder Kaur. She consequently fell down. It is then alleged that when Swaran Singh and others went ahead to save Joginder Kaur, Gajjan Singh gave a Takua blow hitting him on the head, Balkar Singh gave a dang blow hitting on his left arm and Daljit Singh gave Takua blow from its reverse side hitting Resham Singh on his left shoulder. Paramjit Singh also gave a Kasia blow from its reverse side to Lakhwinder Singh. The complainant side had also given injuries to the accused in their self-defence. On raising of their alarm, all the accused ran away with their respective weapons. Joginder Kaur had succumbed to her injuries at the spot. Swaran Singh son of Bahal Singh was left near the dead-body and the other injured persons had gone to get themselves admitted in the hospital. Swaran Singh explained the delay in lodging the report stating that since no male member of the Crl. Appeal No.210-DB of 2004 8

family was present at the house, they could not inform the police.

The casting of votes in favour of Sobha Singh and against Sucha Singh, in fact, has been projected as cause of grudge by the complainant side.

On the basis of the aforesaid statement (Ex.PA), formal FIR (Ex.PN) was got recorded in Police Station Sadar Malout (Muktsar).

Thereafter, investigation of the case was taken up by ASI Bohar Singh (PW10) who collected the MLRs of the injured from the hospital, went to the place of occurrence and prepared inquest report Ex.PO on the dead body of Joginder Kaur in the presence of Sukhwinder Singh and Jaswinder Singh. He also prepared the rough site plan Ex.PP. From the place of occurrence bloodstained earth was picked up and a sealed parcel was prepared. He also took into possession a small torn piece of cloth from nail of the main gate of the house which was also taken into possession vide recovery memo.

Statements of the witnesses were also recorded. Autopsy on the dead body of Joginder Kaur was got done from the concerned doctor.

After the postmortem, the clothes of the deceased were also taken into possession vide recovery memo and all the case properties were deposited in the Malkhana with the seals intact.

On 26.7.99 appellant Gajjan Singh was formally arrested and during his interrogation conducted on 27.7.1999, he suffered a disclosure statement Ex.PT pursuant to which he got the blood stained Takua recovered from a concealed place. The other Crl. Appeal No.210-DB of 2004 9

formalities with regard to recovery were done at the spot.

On 8.9.1999 Sucha Singh and Balkar Singh were arrested by SHO Mukhwinder Singh (PW13). Sucha Singh also suffered a disclosure statement Ex.PV pursuant to which he got recovered the bloodstained Gandasa from a concealed place which was taken into possession. The other requisite formalities with regard to the recovery were completed at the spot. The cloth which was torn at one place (right leg) was also taken into possession. Thereafter, pursuant to the disclosure statement Ex.PX suffered by Balkar Singh, a dang was recovered which was also taken into possession vide recovery memo. The other formalities were also got done. On 16.9.1999 Paramjit Singh was formally arrested and on 17.8.1999 he suffered a disclosure statement Ex.PY pursuant to which a Kasia was got recovered from a concealed place which was also taken into possession. All the case properties were deposited in the Malkhana with all the seals intact.

It is worth mentioning here that during the investigation Jaskaran Singh and Daljit Singh appellants were found innocent and consequently they were not challaned. The challan was filed against the other four accused only and were charged by the trial Court.

However, after recording the statement of Swaran Singh, an application under Section 319 Cr.P.C. was moved by the State whereupon the aforesaid two accused were summoned to face trial.

Crl. Appeal No.210-DB of 2004 10

Thereafter, all the six accused were charged afresh. We do find some irregularities in framing of the charge as Sucha Singh appellant (since dead), who has been convicted under Section 302 IPC, was in fact, not charged for the said offence substantively and the charge framed against him along with others was under Section 302/149 IPC but for the purpose of deciding the instant appeal the said defect/irregularity would be of no effect as Sucha Singh is dead. Even otherwise, the said irregularity would not cause any prejudice to the remaining accused.

In order to substantiate its case, the prosecution has examined the following witnesses:-

Swaran Singh son of Hansa Singh (PW1): He is the FIR lodger. He has been examined as PW1 before moving the application under Section 319 Cr.P.C. and thereafter on appearance of two accused he was examined as PW4. His statement as PW4 is a complete statement including his cross-examination. He reiterates his earlier statement Ex.PA which is the basis of the recording of the formal FIR.

Dr. G.S. Bhullar PW2: He conducted the autopsy on the dead body of Joginder Kaur and found the following two injuries:-

1. Incised wound 11 cm x 2 cm placed longitudely on left side of skull. Four cm. from midline and 4 cm from hairline on forehead. The underlying bone was fractured. On dissection, there was a big Crl. Appeal No.210-DB of 2004 11

hematoma, under neath.

2. Incised wound 2 cm x 1 cm on right side of forehead near the outer end of right eyebrow.

Clotted blood was present.

According to the opinion of the doctor injury No.1 was sufficient to cause death in the ordinary course of nature. Both the injuries were caused by sharp edged weapon. The duration between the injuries and death was opined as few minutes. This witness proved the postmortem report as Ex.PB and PB/1 is the pictorial diagram showing the seats of injuries.

Dr. Malkiat Singh (PW3): He had examined Lakhwinder Singh PW6 on 18.7.1999 at 10.50 P.M. and found the following injuries:-

1. Lacerated wound 7 cm x.5 cm. skin deep, parallel to midline starting 4 cm from anterior hair line and going backward. 2 cm. from the midline fresh bleedings was present. On the left side of midline on the head.

2. Diffused swelling 5 cm x 3 cm over inferior and angle of right scapula.

All the injuries were declared simple caused by a blunt weapon within the duration of six hours. He has proved MLR Ex.PD of this witness.

On the same day Dr. Malkiat Singh at 10.53 P.M.

examined Swaran Singh and found following injuries:-

1. Incised wound 7 cm x 0.5 cm., bone deep on the Crl. Appeal No.210-DB of 2004 12

right parietal area. 7 cm from top of right pinna and starting backward 10 cm from interior hairline, fresh bleeding present.

2. Diffused swelling 4 cm x 4 cm over the posteromedial aspect of left wrist joint.

Both the injuries were declared simple. Injury No.1 was caused by a sharp edged weapon whereas injury no.2 was on account of a blunt weapon. Duration described was within six hours. MLR Ex.PE with regard to this injured was proved.

On the same day at 11 P.M. Resham Singh PW5 was also examined and on his person following injuries were noticed:-

1. Reddish contusion 20 cm x 3 cm over the back starting from midline of right scapula downwards going obliquely down across the spine. Ending at the level of T 12 vertebrae, 4 cm of left of the spine (midline).

2. Reddish contusion 24 cm long x 3 cm, 4 cm above and parallel to injury No.1 starting from medial and upper border of right scapula. Advised X Ray.

3. Reddish contusion 10 cm x 3 cm overlying the left scapula and starting from medial upper angle and going obliquely downwards and latterly. The patient was conscious, oriented, pulse 78 per minute regular. BP 122/76 mm. both pupils NR/NS.

All the three injuries were ultimately declared simple caused by a blunt weapon within the duration of six hours.

On the same day Dr. Malkiat Singh had also examined Gajjan Singh appellant at 11.00 P.M. and found the following injuries Crl. Appeal No.210-DB of 2004 13

on his person:-

1. Incised wound semilumor shape, bone deep 9 cm x 1.50 over the right parietal eminence, 3 cm from midline and starting 8 cm behind anterior hair line and fresh bleeding was present.

2. Reddish contusion 8 cm x 3 cm horizontal, across midline at the level of medial border of left scapula, ending 3 cm across midline.

3. Reddish contusion 8 cm x 3 cm over top of the left shoulder going medially over lying diffuse swelling, 12 cm x 10 cm, painful movements of left shoulder. Advised X-ray.

Injuries No.1 and 2 were declared simple whereas after the X-ray report injury no.3 was declared as grievous. The weapon for injury no.1 was declared as sharp edged whereas for other two injuries as blunt. The duration of injuries was within six hours.

Resham Singh (PW5) and Lakhwinder Singh (PW6) are the injured eye witnesses. They corroborate the version of Swaran Singh.

Suresh Kumar (PW7) is a draftsman who prepared the scaled site plan Ex.PL at the instance of Swaran Singh son of Bahal Singh (not produced) by the prosecution.

Constable Ram Kishan (PW8) has tendered his affidavit Ex.PM.

Constable Prem Chand (PW9) is a witness of delivering of the special report to SDJM Giddarbaha on 19.7.1999 at 10.25 A.M.

Crl. Appeal No.210-DB of 2004 14

He states that he had left the police station at 5.15 A.M.

ASI Bohar Singh (PW 10) is the investigating officer and the investigation conducted by him is depicted in the preceding paras.

Gurbachan Singh, SSO (PSEB) (PW11) was produced by the prosecution to show that there was power failure in grid sub station village Abul Khurana from 9.32 P.M. to 10.32 P.M. and, therefore, there was no light in village Gurusar Jodhake, Tehsil Malout, District Muktsar (the village where the occurrence has taken place). He, however, proved this fact from the record maintained in the office photostat copy of which was proved as Ex. PAA.

Head Constable Malkiat Singh (PW12) has tendered his affidavit Ex.PZ/1.

Ravinder Singh (PW12) an official from the office of BDPO Bathinda has proved the report Ex.PBB to show that appellant Sucha Singh son of Lakhbir Singh (since dead) and Sobha Singh son of Chanan Singh had contested the election for the post of Sarpanch of Panchayat Gurusar Jodhake and as per record Sobha Singh was elected as Sarpanch of that village. The election was held in the month of June, 1998.

Inspector Mukhwinder Singh (PW13) is the investigating officer who partly investigated the case and after formally arresting the accused had recovered the weapons of offence pursuant to their disclosure statements. His investigation is also depicted in the Crl. Appeal No.210-DB of 2004 15

preceding paras.

Certain official witnesses and the other witnesses of village, namely, Jarnail Singh, Naunihal Singh, Major Singh, Lakhwinder Singh (another Lakhwinder Singh), Gurdas Singh, Gurmeet Singh, Gurcharan Singh and Satnam Singh have been given up as unnecessary.

Out of the aforesaid witnesses some are shown to be the eye witnesses to the occurrence by the prosecution and on the basis of their statements, Jaskaran Singh and Daljit Singh appellant were found innocent. The matter was verified by DSP Sajjan Singh who had also changed the offence from Section 302 IPC to Section 304 IPC. Consequently, the challan was filed under Section 304 IPC.

This fact is mentioned in the cross-examination of aforesaid Mukhwinder Singh (PW13) who at the relevant time was posted as SHO, Police Station Sadar Malout.

The plea taken by the appellants can be extracted from the statement of Gajjan Singh wherein he states that mutation of inheritance of Jagir Singh, grand father of Swaran Singh was sanctioned in favour of Joginder Kaur, Gurmej Kaur and Harbans Kaur, the three real sisters of Harsha Singh in equal shares along with three brothers as Joginder Kaur had transferred the land of her share in the name of Harsha Singh. Thereafter, Resham Singh and Jeon Singh had stopped speaking with Swaran Singh etc. and with their Crl. Appeal No.210-DB of 2004 16

family. Joginder Kaur got arranged the marriage of Manjit Kaur sister of Jaskaranjit accused with Jagdip Singh. Jaskaranjit's sister's marriage photographs are Ex.A1 and Ex.A2. There was no dispute of elections. It is all fabricated. Election had taken place prior to the occurrence and thereafter complainant party have been passing from the fields as well as in front of the house of accused party daily. The story of negotiation of marriage is completely false. The police station falls on the way from the place of occurrence to Hospital. ASI Bohar Singh has very close relations with the complainant party.

Sucha Singh Sarpanch was helping Anokh Singh in the land dispute with the complainant party and at the time of demarcation of that disputed land ASI Bohar Singh and father of Swaran Singh PW were present and Sucha Singh Sarpanch was witness in favour of Anokh Singh. Swaran Singh and his family were not on speaking terms with Lakhwinder Singh and Resham Singh due to transfer of land.

Actually Joginder Kaur had gone to the house of Resham Singh.

After quarreling with the mother of Swaran Singh PW two days prior to the occurrence, Swaran Singh etc. were suspecting that she may not sign the documents in favour of Resham Singh and Lakhwinder Singh. Swaran Singh armed with gandasa went to the house of Resham Singh and Lakhwinder Singh at 9.45 and at that time, there was no light in the house. He had a fight with Swaran Singh and in that fight, all of them received injuries or that Joginder Kaur raised Crl. Appeal No.210-DB of 2004 17

alarm and intervened and she also sustained injuries at their hand in that fight. He on hearing alarm came there and tried to separate or that he was also given injuries by the complainant party lodged FIR in consultation with Sobha Singh and Swaran Singh son of Bahal Singh against him and others.

In defence, the accused had produced one Vikram Raj Singh Chohan, Handwriting and Finger Print Expert (Patiala) as DW1 who had proved an application moved by Resham Singh to the Sarpanch of the village with regard to the dispute within the family as he has denied his signatures on the said application when this fact was put to him in his cross-examination from the defence side and, therefore, this document was treated as a questioned document and after his specimen signatures were taken on the direction of the Court, the questioned signature was prepared with the admitted signatures.

Certain other sheets prepared by this witness were exhibited as D1 to D31.

Ex.D32 is a copy of Rojnamcha, D33 is a copy of the judgment passed by SDJM, Malout dated 26.10.1999 in which Swaran Singh son of Bahal Singh (not produced by the prosecution) is the accused in a State case registered against him and his two brothers under Sections 326/325 IPC. Ex.D-34 is the copy of the summoning order dated 25.11.2003 passed in a criminal complaint filed by Gajjan Singh appellant against Swaran Singh PW4, Resham Crl. Appeal No.210-DB of 2004 18

Singh PW5 and Lakhwinder Singh PW6 to face trial under Sections 324/323/341 IPC.

After appreciating the entire evidence, the learned trial Court has convicted and sentenced the appellants as indicated herein above. Hence this appeal.

We have heard Mr. APS Doel, learned counsel for the appellants in Criminal Appeal No.210-DB of 2004, Crl. Appeal No.229-DB of 2003 and Crl. Appeal No.571-DBA of 2006, Mr. M.S.

Sidhu, Senior Deputy Advocate General, Punjab and Mr. I.S. Mann, Advocate, for respondents no.2 to 4 in aforesaid Crl. Revision No.571-DBA of 2006. We have also heard Mr. H.S. Gill, Senior Advocate, assisted by Mr. R.K. Dhiman, learned counsel for the petitioner in Criminal Revision No.1176 of 2004. With their assistance we have also gone through the entire paper book and the trial court record very minutely.

Mr. Doel at the very outset submits that even if the case of the prosecution is factually taken to be true, still it cannot be said that all the accused had the intention to cause death of Joginder Kaur, despite the fact that they had entered into the house of Resham Singh.

According to Mr. Doel even after stretching the case of the prosecution to its extreme end, the facts and totality of the circumstances show that the appellant side at the most had the intention to cause hurt to the complainant side and that the common Crl. Appeal No.210-DB of 2004 19

object of all can be extended to that stage as they all had allegedly entered into the house but so far as death of Joginder Kaur is concerned, they cannot be convicted with the aid of Section 149 IPC.

Dwelling upon his arguments Mr. Doel further contends that the genesis of the occurrence is not correctly projected by the prosecution and the origin of the fight is being suppressed from this court. The very case set up by Swaran Singh complainant in Ex.PA is that after entering into the house of Resham Singh, Balkar Singh raised a Lalkara that Joginder Kaur is the root cause of all the disputes and then the other two accused caught hold of her and Sucha Singh gave a Gandasi blow on her head which was followed by Jaskaran Singh who was armed with Gandali. Why Joginder Kaur has been projected as a root cause of the occurrence, is not made clear by the prosecution? Swaran Singh states that the complainant side had voted against Sucha Singh in the election held in June, 1998 as is clear from the statement of Ravinder Singh (PW12) and the occurrence is of July, 1999 i.e. after one year. In between no altercation ever ensued between two sides. From this, the learned counsel has made an attempt to assert that the prosecution is in fact suppressing the genesis of the fight and from this all it can be comfortably inferred that all the accused had not gone to the house of Resham Singh at least with a common object of committing the murder of Joginder Kaur. Therefore, the conviction of the five Crl. Appeal No.210-DB of 2004 20

accused namely, Jaskaran Singh, Paramjit Singh, Gajjan Singh, Balkar Singh and Daljit Singh for the offence punishable under Section 302/149 IPC is not sustainable and at the most they can be convicted for the other charges with the aid of Section 149 IPC.

Mr. Doel strengthens his argument yet from another angle and submits that if all the appellants had gone with the common object of committing the murder of any one from the complainant side, they would not have gone satisfied by inflicting simple injuries to two injured witnesses, namely, Resham Singh PW5 and Lakhwinder Singh PW6. To support his contention the learned counsel has taken us through the medical evidence. From these facts, the learned counsel vehemently submits that even qua Sucha Singh (since dead), Section 302 IPC is not attracted and it appears that Joginder Kaur had incidentally appeared at the scene of occurrence and received injuries at their hands. In this factual backdrop, even the case of Sucha Singh appellant at the most would fall within the mischief of Section 304 Part-I or 304 Part-II IPC and not under Section 302 IPC.

Mr. Doel then contends that receiving of three injuries by Gajjan Singh appellant at the scene of occurrence is again a fact which causes dent in the case of the prosecution despite the fact that the complainant side has made an attempt to explain those injuries.

One of the injuries on the person of Gajjan Singh has been declared as Crl. Appeal No.210-DB of 2004 21

grievous (injury No.3) caused by a sharp edged weapon on his parietal region. The complainant side was not armed with any weapon at time of occurrence and receiving of injuries by two different weapons on the person of Gajjan Singh reflects that a feeble attempt has been made by the prosecution to explain the same but failed in its attempt.

Mr. Doel then makes an attempt to segregate the case of Daljit Singh and Jaskaran Singh submitting that they were found to be not present at the time of occurrence as is clear from the statement of SHO Mukhwinder Singh (PW13) who had recorded the statements of certain witnesses and his investigation was further verified by D.S.P.

These witnesses have not been produced by the prosecution. This shows that the complainant party has gone to the extent of falsely implicating innocent persons.

Mr. Doel lastly contends that in case the main charge of Section 302 IPC with which Sucha Singh appellant (since dead) stands convicted substantively is diluted to the lesser offence, in that eventuality, technically the conviction of all the appellants under Section 449 IPC would not be sustainable and the same would then fall within the ambit of Section 450 IPC. In that situation, the case of the present appellants would call for reduction in the quantum of sentence awarded under section 449 IPC.

Arguing for Gajjan Singh appellant in Criminal Appeal Crl. Appeal No.210-DB of 2004 22

No.571-DBA of 2006, Mr. Doel states that a great prejudice has been caused to the appellants side. According to him, the learned trial Court should have committed the complaint case to the court of Session for the purpose of clubbing it with the State case but the same was not done and ultimately acquitted the respondents vide impugned judgment dated 25.4.2006 i.e. after more than two years of deciding the State case against Sucha Singh and five others. He then contends that even otherwise the judgment of conviction has been made the basis of acquittal and this view is not sustainable. He submits that had the complaint case been decided with the State case, the fate of the complaint case would have been altogether different and, therefore, this has resulted into prejudice. Therefore, impugned judgment is not sustainable and respondents No.2 to 4 are liable to be convicted for the charges framed against them.

Repudiating the submissions advanced by Mr. Doel, Mr.

M.S. Sidhu, learned State counsel submits that may be Sucha Singh appellant (since dead), who was convicted for the offence of Section 302 substantively, is not before this court as his appeal stands abated but keeping in view the totality of facts and circumstances especially the fact that all the appellants armed with sharp edged and blunt weapons went to the house of Resham Singh, their conviction as already recorded under Section 302 read with Section 149 IPC deserves to be maintained. He then submits that the defence plea Crl. Appeal No.210-DB of 2004 23

taken by Gajjan Singh does not appeal to reasoning at all and even otherwise the injuries on his person are explained by the prosecution.

The learned State counsel submits that in fact, after the death of her husband Joginder Kaur, the real sister of Harsha Singh was staying with her brothers and she had also given them her land. She was an elderly lady in the family and, therefore, the appellants who entered into the house of Resham Singh thought that she was the main person and the root cause of the bickering and this is the reason that she was assaulted first of all by Sucha Singh. The intention of all the appellants was to kill Joginder Kaur and, therefore, the common object of all of them was writ large and stands proved.

According to Mr. Sidhu, the prosecution has not suppressed the genesis of the occurrence and, therefore, the accused cannot derive any benefit so as to dilute the main charge of Section 302 IPC. The conviction of all as recorded by the learned trial Court, therefore, deserves to be maintained.

Mr. H.S. Gill, Senior Advocate, adopts the arguments advanced by Mr. Sidhu.

On the other hand, controverting the arguments advanced by Mr. APS Doel in Criminal Appeal No.571-DBA, Mr. I.S. Mann, Advocate, learned counsel for respondents No.2 to 4 submits that there is no infirmity in the impugned judgment of learned trial court with regard to acquittal of Swaran Singh, Resham Singh and Crl. Appeal No.210-DB of 2004 24

Lakhwinder Singh as the prosecution has not been able to prove its case to the hilt. The learned counsel then submits that may be the learned trial Court has referred to the judgment of learned Additional Sessions Judge, Faridkot (Ex.DA) vide which Sucha Singh and others appellants herein (in the connected two appeals) have been convicted which at the most can be said to be some irregularity, still if the case of the prosecution is re-scanned in its totality, it is not proved to the hilt and, therefore, the benefit of doubt has been rightly extended to the acquitted respondents. On the basis of the aforesaid submissions Mr. Mann prays for dismissal of Criminal Appeal No.571-DBA of 2006.

Mr. Sidhu does not feel the necessity of assisting this Court for the disposal of aforesaid appeal.

In order to appreciate the entire case of prosecution in its right perspective, we have recapitulated the scene of occurrence in the light of the medical evidence, substantive statements of the injured witnesses and the investigation conducted. Although in the rough site plan or the scaled plan, house of accused side is not depicted, yet in the cross-examination of Swaran Singh, the first informant, it has come that the house of Resham Singh is in front of house of Sucha Singh. Another fact, which has come in cross-examination of Swaran Singh is that his father was a retired police official and at the time of occurrence he was alive. We are also visualizing the present Crl. Appeal No.210-DB of 2004 25

occurrence in the light of motive projected by the complainant for the reason that all the appellants except Sucha Singh (since dead), who was convicted under Section 302 IPC substantively, are convicted for the same charge by the trial Court with the aid of Section 149 IPC on the rationale that they had the common object viz to commit murder of Joginder Kaur. Swaran Singh in his substantive statement states that all the accused forcibly entered into the courtyard of the house of Resham Singh and when Joginder Kaur, since deceased, rushed towards the door to close it, Balkar Singh raised the Lalkara and exhorted Sucha Singh to give a Gandasa blow to her as she was the root cause of all the disputes. Admitted position is that the said root cause is not disclosed at all. Swaran Singh in his examination-in- chief states that the motive behind the occurrence was that they had voted in favour of Sobha Singh in Panchayat election who had contested election against Sucha Singh accused. The evidence before us is that the said election was held a year prior to the present occurrence. What happened in between is not before us. All the appellants are from Lakhbir Singh's family as is clear from the pedigree table depicted in the opening paras of the judgment.

What is to be appreciated by us on the basis of the evidence discussed herein above is as to whether all the accused arrayed herein were involved in the present occurrence, and if so, had they all the common object of committing the murder of Joginder Crl. Appeal No.210-DB of 2004 26

Kaur. Mr. Doel in order to segregate the case of Daljit Singh and Jaskaran Singh appellants has relied upon the investigation conducted by SHO Mukhwinder Singh PW13, who in his cross-examination has stated that during the investigation he had recorded the statements of Gurmeet Singh Panch, Gurcharan Singh Panch, Naunihal Singh, Lakhwinder Singh and Gurnam Singh under Section 161 Cr.P.C. and the investigation conducted by him was verified by DSP and result of the said investigation was that Daljit Singh and Jaskaran Singh appellants were found innocent and not challaned. No doubt, the State has not examined the aforesaid witnesses being unnecessary but in our considered view Mr. Doel cannot derive any benefit from that aspect for the reason that these two accused are named in the initial statement Ex.PA which is the basis of recording of the formal FIR and a specific part of causing injuries to the complainant side is also attributed to both of them. In the substantive statements also, all the three injured witnesses have specifically named them with the attribution of role. DSP Sajjan Singh, who had verified the investigation, has not stepped into the witness box. Therefore, we do not know the exact basis for declaring them innocent. Even otherwise the complainant Swaran Singh does not talk of the presence of the aforesaid Gurmeet Singh Panch and others at the time of alleged occurrence. The court is not supposed to deliver its judgment on the sweet will of the investigating agency and the prosecution case has to Crl. Appeal No.210-DB of 2004 27

be decided on the basis of the evidence brought on record. We, therefore, do not agree with the argument of Mr. Doel to the effect that Jaskaran Singh and Daljit Singh were not present at the time of occurrence.

We may also observe here that the finding of aforesaid DSP Sajjan Singh with regard to converting the case from Section 302 to 304 is again not binding on us and we are appreciating the case of the prosecution once again in its totality on all counts including the nature of offence.

On the basis of the aforesaid discussion and the facts before us, we observe that all the accused were present in the house of Resham Singh and are involved in this case. We are of the firm view that the prosecution is not projecting the genesis of the occurrence correctly and the origin of the fight is being suppressed. How Joginder Kaur, since deceased, turns out to be a root cause, is not clear to us. The enmity with regard to the election held in June, 1998 appears to be stale one for which all the six accused would not share the common object at least of committing murder of Joginder Kaur.

On the other hand, the plea taken by Gajjan Singh is also not convincing but the settled legal position is that the accused can be convicted on the falsity of defence taken by him and what is to be appreciated is the very case set up by the prosecution. Therefore, from the totality of facts and circumstances, we can now comfortably Crl. Appeal No.210-DB of 2004 28

make out that all the appellants had gone to the house of Resham Singh with a common object of causing hurt to the complainant party and certainly not with a common object of killing Joginder Kaur so as to convict them for the offence punishable under Section 302 read with Section 149 IPC. Therefore, the conviction of the present five appellants now before us under Section 302/149 IPC deserves to be disturbed.

Although Sucha Singh appellant had died during the pendency of the appeal, yet, we on the basis of the evidence on record have appreciated his case as well with regard to the nature of offence.

Keeping in view the entire facts, the weapon (Gandasi) attributed to him, the seat of injury and the damage caused on account of that injury (injury No.1on the head), his case falls within the mischief of Section 304 Part-I IPC and not 302 IPC. For arriving at this conclusion, we are also taking into account the three injuries on the person of Gajjan Singh appellant which, in our view, are by different weapons. Since we have already held that the appellants had gone to the house of Resham Singh PW, in this eventuality the prosecution was not supposed to explain the injuries on the person of Gajjan Singh accused but once the specific case of the complainant side is that injuries were caused to Gajjan Singh while defending themselves, then some plausible explanation was expected from the complainant side. Even if we do not take that aspect into consideration, still we Crl. Appeal No.210-DB of 2004 29

can very comfortably infer that there was no intention to cause death of Joginder Kaur in the bosom of Sucha Singh (since dead). Their Lordships of Hon'ble Apex Court in Rajpal and others Vs. State of Haryana 2006 (3) R.C.C. 209 while depicting the comparative table which is helpful in appreciating the points of distinction between Section 299 and Section 300 of IPC have observed that the Indian Penal Code recognizes three degrees of culpable homicide. The first degree and gravest of culpable homicide is defined in Section 300 IPC as "murder". The second degree of culpable homicide is punishable under first part of Section 304 IPC whereas the third degree is punishable under second part of Section 304 IPC.

While following the broad guidelines elucidated in the aforesaid judgment and keeping in mind the over all view of the occurrence, we are of the firm view that the present case falls in the second degree of culpable homicide which is punishable under Section 304 Part-I IPC. We accordingly disturb the conviction of even Sucha Singh appellant (since dead) under Section 302 IPC for arriving at the just conclusion of this case for the reason that it has bearing upon the case of the remaining five accused on merits.

However, we do not pass any substantive sentence qua Sucha Singh as his appeal stands abated.

We would like to make it clear here that as per the case of the prosecution, Jaskaran Singh appellant who was armed with a Crl. Appeal No.210-DB of 2004 30

Gandali (sharp pointed weapon) has allegedly caused injury on the eye-brow of Joginder Kaur, since deceased. This injury is simple in nature of the dimension of 2 cm x 1 cm near the outer end of right eye-brow as is clear from the statement of Dr. G.S. Bhullar (PW2).

This is a very minor injury which can be said to be just a grazing injury by any sharp pointed weapon. From this we can very comfortably conclude that may be Jaskaran Singh appellant is attributed an injury on the person of the deceased, still his case is factually at par with his other four appellants.

On the basis of the aforesaid rationale, we do not feel any difficulty in holding that the remaining five appellants, namely, Jaskaran Singh, Paramjit Singh, Gajjan Singh, Balkar Singh and Daljit Singh are liable to be convicted for causing injuries to the complainant party regarding which they have already been charged.

Gajjan Singh who was armed with Takua, has caused one simple injury to Swaran Singh falling within the mischief of Section 324 IPC. Balkar Singh appellant, who is armed with Dang, had also caused single injury falling within the ambit of Section 323 IPC.

Daljit Singh appellant was armed with Gandasi and caused injury to Resham Singh PW from its reverse side. This again is a simple injury. Paramjit Singh was allegedly armed with Kasia and caused one injury on the left shoulder of Resham Singh and the other injury to Lakhwinder Singh PW. Both these injuries are simple in nature.

Crl. Appeal No.210-DB of 2004 31

Therefore, the conviction as recorded by the trial Court qua aforesaid accused for the offences punishable under Sections 324 and 323 IPC is justified.

We may observe here that the learned trial Court has again committed an irregularity with regard to conviction of Jaskaran Singh under Section 323 IPC along with his other four co-accused.

We, however, do not consider this irregularity to be serious as it has no adverse effect for the reason that he has also been convicted along with Balkar Singh, Paramjit Singh and Daljit Singh under Section 324/149 IPC and sentenced to undergo R.I. for one year. The sentence awarded under Section 323 IPC is six months only which is certainly a lesser one.

Since we have disturbed the conviction under Section 302 IPC, technically the conviction of all the appellants before us cannot legally be sustained under Section 449 IPC for which they have been sentenced to undergo R.I. for 5 years and to pay a fine of Rs.1000/-. Section 449 IPC relates to a house trespass in order to commit offence punishable with death and the punishment provided is imprisonment for life or with rigorous imprisonment for a term not exceeding 10 years and also the fine. On the other hand, Section 450 IPC relates to house trespass in order to commit offence punishable with imprisonment for life and the punishment provided is imprisonment for a term not exceeding ten years and fine also. The Crl. Appeal No.210-DB of 2004 32

present case on facts would now fall within the mischief of Section 450 IPC. We, therefore, disturb the conviction of all the five appellants as recorded under Section 449 IPC and alter the same to Section 450 IPC. Ordered accordingly.

Conviction of all the five appellants, however, under Section 148 IPC as recorded by the trial Court stands upheld.

We have also considered the case of all the accused with regard to quantum of sentence. Keeping in view the totality of facts and circumstances especially the fact that their conviction has been disturbed for the main charge of Section 302/149 IPC and also the fact that their conviction under Section 449 IPC is altered to Section 450 IPC, the sentence of rigorous imprisonment for five years as imposed upon them by the learned trial court on that count is reduced to three years. However, the sentence of fine of Rs.1000/- already imposed and the default clause thereof shall remain unaltered.

Ordered accordingly.

Substantive sentence and fine as imposed by the learned trial Court for the other offences shall also remain as it is.

The net result is that Criminal Appeal No.210-DB of 2004 and Criminal Appeal No.229-DB of 2004 are partly allowed in the aforesaid terms whereas Criminal Appeal No.571-DBA of 2006 filed by Gajjan Singh against the acquittal of Lakhwinder Singh, Swaran Singh and Resham Singh is hereby dismissed.

Crl. Appeal No.210-DB of 2004 33

On the basis of our aforesaid discussion, we are not inclined to interfere in Criminal Revision No.1176 of 2004.

Resultantly, the same is dismissed.

( Virender Singh )

Judge

( A.N. Jindal )

Judge

September 20, 2006

'rana'


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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