Ajay Pal Singh vs State of Punjab

R.L. Anand, J.

By this judgment I dispose of Criminal Appeal No. 209SB of 1995 titled Ajay Pal Singh v. The State of Punjab, Criminal Appeal No. 228SB of 1995, titled Ajay Pal Singh v. State of Punjab, Criminal Appeal No. 235SB of 1995, titled Rajesh Kumar v. State of Punjab and Criminal Appeal No. 266SB of 1995 titled Arminder Singh v. The State of Punjab as all the four appeals have arisen from one judgment of conviction and one order of sentence. These appeals have been directed against the judgment and order dated 10.4.1995 passed by the Court of Additional Sessions Judge, Ferozepur, who convicted Arminder Singh appellant under Section 307 IPC, Ajay Pal Singh son of Parambir Singh and Ajay Pal Singh son of Sukhdev Singh and Rajesh Kumar under Section 307 read with Section 34 IPC. Arminder Singh was sentenced to undergo R.I. for a period of 7 years and to pay a fine of Rs. 2500/ under Section 307 IPC. In default of payment of fine, he was directed to further undergo RI for six months. His companions aforesaid were sentenced to undergo RI for a period of 2 years each and to pay a fine of Rs. 2500/ each under Section 307 read with Section 34 IPC. In default of payment of fine these three appellants were directed to undergo RI for further six months each. All the four appellants were also sentenced to undergo RI for 7 years and to pay a fine of Rs. 2500/ each under Section 450 IPC and each one of them was directed to further undergo RI for six months in default of payment of fine. All the substantive sentences were ordered to run concurrently.

The brief facts of the case are that the present case was registered on the statement of Kulwinder Singh injured son of Shri Jaskaran Singh. It is alleged by him that on 27.5.1991 at about 7.30 p.m. he, his father''s sister (Bhua) Smt. Kanwarjit Kaur and driver Gurdip Singh were present at Bhawan Colony, Ferozepur City near the gate of their house when appellant Arminder Singh along with 4/5 boys came to the doorstep of the house of the complainant and started creating the mischief. Kanwarjit Kaur tried to dissuade them but all of them, who had already come there, grappled with the complainant who fell down. When the complainant was lying on the ground, Arminder Singh appellant took out a Chhuri (small dagger) from the pocket of his pant and he gave two blows upon Kulwinder Singh with the Chhuri hitting on his chest. Smt. Kanwarjit Kaur, Bhua of Kulwinder Singh and Gurdip Singh driver raised rola "Mar ditta, Mar ditta", upon which Arminder Singh appellant and his companions left the place of occurrence. Thereafter the Bhua of the injured arranged a jeep and the injured was taken to Civil Hospital, Ferozepur from where he was removed to Mission Hospital, Ferozepur. The complainant made a statement of Ex.PK before ASI Kulwant Rai of Police Station City Ferozepur, which was read over and explained to the complainant, who signed the same in taken of its correctness. The Thanedar made endorsement Ex.PK/1 under the statement of the injured and it was sent to Police Station Ferozepur for the registration of the case, on the basis of which formal FIR Ex.PK/2 was recorded by SI Paras Ram. This Investigating Officer also recorded the statement of Smt. Kanwarjit Kaur under Section 161 Cr.P.C. On the next day i.e. on 28.5.1991 he went to the spot and prepared rough site plan Ex.PN with correct marginal notes. He also lifted blood stained earth from the spot, made a sealed parcel thereof and took the same into possession vide memo Ex.PQ in the presence of Amardip Singh and Gurdip Singh. He also took into possession one pair of chappals and sheath of chhuri vide recovery memo Ex.PR. Smt. Kamaljit Kaur, Staff Nurse of Mission Hospital produced before the Thanedar blood stained shirt of Kulwinder Singh on 29.5.1991, which was taken into possession vide memo Ex.PS. Appellant Arminder Singh was arrested on 5.6.1991, and he suffered a disclosure statement to the effect that he had kept concealed one chhuri under the heap of bricks in Dhawan Colony in a plot regarding which he was of the conscious possession. His disclosure statement Ex.PT was recorded. It was read over and explained to Arminder Singh, who signed the same in token of its correctness in the presence of Constable Prabh Dayal and HC Gurdev Singh. Thereafter he led the policy party to the place of concealment and got recovered the chhuri stained with blood. It was taken into possession vide recovery memo Ex.PV. The Thanedar prepared rough site plan Ex.PX of the place of recovery. A sealed parcel of the Chhuri was prepared and on return to the police station it was deposited with the MHC.

During the course of interrogation, it was revealed that other persons, who were accompanying Arminder Singh appellant were Ajay Pal Singh son of Sukhdev Singh and Ajay Pal Singh son of Parambir Singh and Rajesh Kumar. They were also taken into custody.

The injured was medicolegally examined by Dr. Manmohan Singh Dhillon PW1, who found three incised wounds on his person. I will discuss the medical aspect of this case in the subsequent portion of this judgment. Dr. Richard David also treated Kulwinder Singh injured besides Dr. T.N. Singh, who also examined the injured in the hospital on the same night.

The sealed parcels containing earth etc. were sent to the office of Chemical Examiner, who found human blood on the blood stained earth, shirt and dagger Ex.P1. On completion of the investigation, all the four appellants were sent to the Court of Chief Judicial Magistrate, Ferozepur for facing the trial. The learned Chief Judicial Magistrate supplied the copies of the documents to the appellants and vide commitment order dated 16.9.1991 committed them to the Court of Session. Vide orders dated 10.10.1991 Addl. Sessions Judge, Ferozepur framed charges against the appellants under Sections 450, 307 and 307/34 IPC. The charges were read over and explained to the appellants, to which they pleaded not guilty and claimed a trial.

In order to prove the charges, the prosecution examined Dr. Manmohan Singh Dhillon PW1, who on 27.5.1991 at about 8.20 p.m. medicolegally examined Kulwinder Singh and at the first instance found two injuries on his person described as below :

Incised wound which was punctured 4 cms x 2 cms size on the right side lower part of chest 11 cms below and inner to right nipple. Obliquely placed. Profusely bleeding. Probing for depth of wound was not done and was under observation for Surgeon''s opinion.

Incised punctured wound 3 cms x 2 cms size on the right lower part of chest 2 cms below and lateral to injury No. 1. Probing not done as the wound was profusely bleeding. Advised for Surgeon''s opinion. Patient was conscious. B.P. was 70 MMHg. Pulse 128 P.M. Feeble R.R. was 31 P.M.

According to the opinion of this doctor the injuries were caused within six hours by a sharp edged weapon. He issued Ex.PA, which is the correct carbon copy of M.L.R. and Ex.PA/1 is the pictorial diagram showing the seats of injuries. He sent ruqa Ex.PB to the S.H.O., Police Station City Ferozepur regarding the arrival of injured Kulwinder Singh in the hospital at 8.20 p.m. on 27.5.1991. This very doctor issued a supplementary injury statement on 28.5.1991 at 8.00 a.m. with respect to Kulwinder Singh and found one more incised wound on his person fully described as under :

Incised punctured wound with clear margins 2.5 cm x 2 cm in the third left intercostal space 15 cm. from the midline. Probing was not done as the wound was profusely bleeding and was kept for Surgeon''s opinion.

Ex.PC is the correct carbon copy of the supplementary injury report. This doctor further stated that on the request of the patient the injured was referred to Mission Hospital for treatment and on 3.6.1991 after receipt of a letter from Dr. T.N. Singh he declared injury No. 3 as dangerous to life and rest of the injuries were declared as simple. Ex.PD is the opinion to this extent.

PW2 Dr. Richard David deposed about the admission of the injured in the hospital and according to this witness the injured was having marked difficulty in breathing and he was feeling pain in the chest. The patent was conscious and was responding to comments. His B.P. was recorded as 80/50 and his pulse rate was 100 per minute. The doctor stated that the xray of chest of the injured revealed left side''s massive haemopheumothorax. Four units blood was given to the patient. The patient remained admitted in the hospital upto 19.6.1991 when he was advised for follows up check up.

PW3 Dr. T.N. Singh is the Surgeon of Mission Hospital, Ferozepur, who noticed the following injuries on the person of injured on 27.5.1991 at 9.10 p.m. :

Incised wound 4 cm. x 2 cm lower part of right side of chest, 11 cm below and inner to right nipple, obliquely placed, depth 1 inch, bleeding profusely.

3 cm. x 2 cm. x 2.5 cm. incised wound, lower part of right side of chest 2 cm. below and lateral to the injury No. 1. Bleeding profusely.

2.5 cm. x 2 cm. 2.5 cm. incised wound left third intercostal space about 6 inches from midline, bleeding profusely.

2.5 cm. x 1 cm. incised wound right side of chest poseriorly skin deep only. Bleeding minimally.

This doctor treated the injured and did drainage of left side of chest which contained blood and air. As per this doctor, four units of blood was transfused in order to revive the patient. The patient developed chest infection of the left side and he developed fever.

PW4 is Smt. Kanwarjit Kaur, who is the Bhua of the injured and according to the prosecution she is one of the eye witnesses. Injured Kulwinder Singh appeared as his own witness as PW5 and Sunder Singh, draftsman appeared as PW6. ASI Kulwant Rai, the Investigating Officer, appeared as PW7. The prosecution also tendered into evidence the affidavits of formal witnesses besides the reports of the Chemical Examiner and the Serologist.

On the closure of the prosecution evidence, statements of the appellants were recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to them. They denied those circumstances and stated that they were innocent. Appellant Arminder Singh stated as follows :

"I am innocent. I and Sandeep d/o Kanwarjit Kaur had illicit relations and love affairs. The matter came to the know of our parents. Kanwarjit Kaur was stressing that there should be marriage between us. She approached my father, who refused the proposal. Hence, this case was planted. The witnesses are related and false."

Appellants Ajay Pal Singh son of Sukhdev Singh, Ajay Pal Singh son of Parambir Singh and Rajesh Kumar simply denied their presence. In defence, Arminder Singh appellant examined his father Gurdial Singh as DW1, who supported the plea of his son.

The learned trial Court believed the story of the prosecution and convicted and sentenced the appellants in the manner stated above and aggrieved by their conviction and sentence, the present four appeals, which I am disposing of with the assistance rendered by S/Shri R.S. Ghai, Sr. Advocate assisted by Bipan Ghai, R.S. Cheema, Sr. Advocate assisted by K.D.S. Hooda, Advocate, P.P.S. Duggal, Advocate on behalf of the appellant and Shri J.S. Brar, Deputy Advocate General, on behalf of the State of Punjab and with their assistance I have gone through the records of these appeals.

First of all I will take up the appeals of Ajay Pal Singh son of Sukhdev Singh, Ajay Pal Singh son of Parambir Singh and Rajesh Kumar son of Hari Chand. The counsel appearing on behalf of these appellants submitted that if all the allegations of the prosecution are taken on its face value these persons are straightway liable to be acquitted because they never shared the common intention of their coaccused Arminder Singh. The counsel further submitted that it is also not established on the record that these three appellants trespassed into the house of complainant Kulwinder Singh. It was also urged that these three appellants were not named in the F.I.R. and at no point of time the police got conducted the identification parade of these appellants. On the contrary, it was submitted by the learned counsel for the State that these three appellants came to the spot along with their companion Arminder Singh and they left the place of occurrence with him. Resultantly, they shared the common intention of Arminder Singh appellant and they were rightly convicted and sentenced under Section 307 with the aid of Section 34 IPC. It was also submitted that as per the site plan the occurrence has taken place inside the gate of the house of the complainant and, therefore, the offence under Section 450 IPC is also made out.

After considering the rival contentions of the parties, I am of the considered opinion that the appeal of these three appellants is liable to succeed. Section 34 lays down "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone." In order to attract the provisions of Section 34, it is necessary on the part of the prosecution to establish that each one of the appellants shared the common intention, which must be prior in time to the actual assault and any one of them had done the act in furtherance of the said common intention. The law has always made a very categorical distinction between `common intention'', `same intention'' and `similar intention''. Common intention, cannot be equated with similar intention or with the same intention.

Reverting go the allegations of the F.I.R., it would be abundantly clear that as per the allegations of the prosecution all the four appellants came in front of the house of the complainant. At no point of time any Lalkara had been given by any of these three appellants to his companion Arminder Singh to take out the dagger from the pocket of his pant and to cause injury to Kulwinder Singh. It is also not the case of the prosecution that during the course of occurrence any Lalkara or abetment was given by any of the appellants. None of the appellants pin down the injured so as to give exhortion to their companion Arminder Singh to take out the knife from the pocket to cause injuries. All the four appellants might be having similar and same intention when they allegedly went to the house of Kulwinder Singh but none of them shared a common intention that Arminder Singh would cause injuries to Kulwinder Singh with the help of a dagger, so much so there is not an iota of evidence to the effect that any of the three appellants had a prior knowledge that their companion Arminder Singh was carrying a deadly weapon like a Chhuri in his pocket. In these circumstances it is difficult for this Court to hold that any of these three appellants had shared the common intention or the act of actual assault allegedly attributed to Appellant Arminder Singh. None of these three appellants was named in the F.I.R. Rather the F.I.R. shows that appellant Arminder Singh was accompanied by 4/5 persons. After their arrest, the prosecution did not take any step to get the identification of these three appellants fixed. Even the site plan which has been relied upon by the prosecution prima facie indicates that the occurrence has taken place just within few feet of the main gate going to the house of Kanwarjit Kaur. In these circumstances, I am inclined to extend the benefit of doubt to Ajay Pal Singh son of Sukhdev Singh, Ajay Pal Singh son of Parambir Singh and Rajesh Kumar appellants. Resultantly, their appeals are hereby allowed and they stand acquitted of the charges framed against them.

Now reverting to the appeal of Arminder Singh, who is being represented by Shri R.S. Ghai, Sr. Advocate, it is submitted on behalf of this appellant that there is a discrepancy between the medical evidence and the ocular account and that the offence if any is made out under Section 324 IPC because injury No. 3 which was declared dangerous to life was never noticed by Dr. Manmohan Singh Dhillon PW1, who medicolegally examined Kulwinder Singh at the first instance in Civil Hospital, Ferozepur. I have given due thought to the consideration and I am of the considered opinion that none of the contentions raised by Shri Ghai is helpful to him. The occurrence in this case took place on 27.5.1991 at about 7.30 p.m. The injured was first brought to Civil Hospital, Ferozepur. Dr. Manmohan Singh PW1, no doubt found two injures at the first instance on the person of Kulwinder Singh. It appears that this doctor did not minutely medically examine the injured for the obvious reason that the injured at that time was in a bad shape. His B.P. was 70 MMHg. His pulse was 128 per minute. The respiratory system of injured was 31 p.m. In these circumstances there can be an honest omission on the part of Dr. Manmohan Singh, who was more eager to save the life of the injured and the injured was referred to Mission Hospital, Ferozepur which has more facilities as compared to Civil Hospital, for further medical treatment. Injured Kulwinder Singh arrived in Mission Hospital without any wastage of time at about 9.10 p.m. on the same night. There can hardly be any occasion on the part of anybody to persuade Dr. T.N. Singh to multiply the injuries in the medicolegal report which has been issued by this doctor. Dr. Manmohan Singh stated that the patient was not able to speak at the time of medical examination. The doctor has also stated that he did notice injury No. 3 when the patient was brought to him on 27.5.1991, but he could not mention the said injury in the M.L.R. I do not subscribe to the argument of the learned counsel for the appellant that Dr. Manmohan Singh had introduced injury No. 3 under political pressure. Firstly, it is not established that PW1 Dr. Manmohan Singh was under the influence of any political authority and nobody would like to put a rope in his neck at the behest of other. Just when the patient was referred to Mission Hospital, Ferozepur, he was in the hands of an independent doctor, who must have thoroughly checked the injured and issued the report separately. The doctor has categorically stated in the crossexamination "I have observed three injuries on the person of Kulwinder Singh but due to inadvertence I failed to mention the third injury in the MLR Ex.PA. I was not negligent at the time of examination and I was worried to save the life of the injured. All the three injures were bleeding at the time of examination." Dr. T.N. Singh PW3 was the second doctor, who medically examined Shri Kulwinder Singh on 27.5.1991 and he found the four injuries on his person as noticed in the earlier part of this judgment. No doubt, that this doctor noticed four injuries but injury No. 4 is skin deep and it was bleeding very minimum. So far as injuries Nos. 1, 2 and 3 were concerned, these were bleeding profusely. So virtually it can be said that there were three injuries and the fourth injury was superficial in nature, i.e. injury No. 4 as per the M.L.R. issued by Dr. T.N. Singh PW3. Thus, if there is honest mistake on the part of Dr. Manmohan Singh, no benefit can be taken up by Arminder Singh with regard to the number of injuries. The opinion of Dr. T.N. Singh with regard to injury No. 3 is more authentic. He is a Surgeon. He noticed the injury on the same night. He operated upon the injured with regard to injuries Nos. 1 to 4. In these circumstances, I am inclined to hold that the injuries which were noticed by Dr. T.N. Singh depict the correct number of injuries on the person of the injured and the honest omission on the part of Dr. Manmohan Singh cannot come to the rescue of appellant Arminder Singh.

Now the point for determination is with regard to the culpability of Arminder Singh appellant and also as to what offence he has committed. Kulwinder Singh injured appeared as PW5 and he deposed that on 26.5.1991 he had come to the house of his Bhua (father''s sister) in order to see her and on 27.5.1991 at about 7.30 p.m. he along Kanwarjit Kaur and driver Gurdip Singh was standing at the gate of the house of Kanwarjit Kaur, when Arminder Singh accompanied by 3/4 friends came to the gate of Kanwarjit Kaur and they started cutting dirty jokes. He and Kanwarjit Kaur asked Arminder Singh and his companions to stop cutting jokes. Appellant Arminder Singh grappled with him and he fell down. Then Arminder Singh took out a Chhuri from the pocket of his pant and gave two Chhuri blows on his chest. He further deposed that Arminder Singh gave two more Chhuri blows to him hitting on his chest. The other accused gave pushes to Kanwarjit Kaur and Gurdip Singh. Thus, Kulwinder Singh has explained all the four injuries received on his person at the hands of Arminder Singh. It is true that in the F.I.R. this witness has only made a mention of two injuries but we all know that F.I.R. is not an encyclopaedia. When the statement of Kulwinder Singh was recorded by the police he was in shock. He had received serious injuries. Rather injury No. 3 was dangerous to life. He might have omitted to make a mention of all the four injuries in his statement before ASI Kulwant Rai. It is a case where injuries have been attributed to only one person. Had Kulwinder Singh wanted to exaggerate his story, there was no difficulty on his part that he could attribute substantive role to the companions of Arminder Singh. Even the Thanedar could fabricate a story more beneficial to the prosecution. So far as Arminder Singh is concerned, there is consistent statements of Kulwinder Singh injured and his Bhua Kanwarjit Kaur, who appeared as PW4. According to this witness, Arminder Singh along with his companions namely Ajay Pal Singh son of Sukhdev Singh, Ajay Pal Singh son of Parambir Singh and Rajesh Kumar came to her house and they started misbehaving and they were prevented. The accused entered her house while raising Lalkaras, as a result of which Kulwinder Singh tried to stop them. Arminder Singh took out a dagger from the pocket of his pant and gave dagger injuries, two in number, on the chest of Kulwinder Singh. Further it has been stated by this witness that Arminder Singh again gave two dagger blows to Kulwinder Singh also hitting in his chest. Thus all the four injuries have been described by Kanwarjit Kaur, whose presence is very natural because the occurrence has taken place practically in front of her house. The motive in this case has even been suggested by Arminder Singh appellant in his statement under Section 313 Cr.P.C. Therefore, he had every cause to be present in front of the house of Kanwarjit Kaur, who would be the first woman to prevent this appellant from uttering indecent words. Kulwinder Singh being a stamped witness, his presence cannot be doubted. No doubt, this lady has implicated the three appellants namely Ajay Pal Singh son of Sukhdev Singh, Ajay Pal Singh son of Parambir Singh and Rajesh Kumar, but her statement to this extent cannot be believed in view of the fact that she was accompanying the injured to the hospital. At no point of time she ever told to Kulwinder Singh the names of these persons. The three appellants, whose appeals I have accepted above, were never got identified by Shri Kulwinder Singh.

Now I proceed to meet the argument of the learned counsel Shri Ghai as to whether the offence under Section 307 of the Indian Penal Code is made out not not. The counsel submitted that it was a case of sudden quarrel and at the most the offence under Section 324 IPC is made out. There is no merit in this contention. It was not a case of sudden fight. Arminder Singh had no business to go to the house of Kanwarjit Kaur. There was a strong motive on his part. According to him, he himself was having illicit relations with Ms. Sandeep, daughter of Kanwarjit Kaur. In these circumstances he was eager for the marriage. This was being objected to by Kanwarjit Kaur. In these circumstances Arminder Singh might have gone to the house Kanwarjit Kaur in order to pick up the trouble. He was armed with deadly weapon which he was concealing in the pocket of his pent. He gave four injuries one after the other on the vital part of the body of Kulwinder Singh. Injuries No. 1, 2 and 3 were bleeding profusely. The doctor who operated upon Kulwinder Singh categorically stated that the injuries were dangerous to life. It was even the opinion of Dr. Manmohan Singh PW1, who first time medically examined Kulwinder Singh. The injuries were caused with such intention or knowledge and under such circumstances that had the death of Kulwinder Singh taken place, Arminder Singh would have been guilty of murder. In order to attract the ingredients of Section 307 IPC, intention or knowledge is to be seen which can be gathered from the seat of the injury, nature of the injury, nature of the weapon, motive, repetition of the blows and finally the consequence of the injuries. The combined study of the statements of the three doctors leaves no manner of doubt in my mind that injury No. 3 was dangerous to life. Thus I maintain the conviction of appellant Arminder Singh both under Section 450 as well under Section 307 of the Indian Penal Code.

With regard to the question of sentence, the counsel for the appellant submitted that the incident took place in the year 1991. This itself is no ground to mitigate the offence and the sentence. In the alternative it was argued that the sentence awarded by the trial Court is very excessive. In the opinion of this Court, the ends of justice will suffice if the substantive sentence of appellant Arminder Singh stands reduced from 7 years to 5 years both under Sections 450 and 307 of the Indian Penal Code and I order accordingly.

The net result of the above discussion is that the three appeals of Ajay Pal Singh son of Sukhdev Singh, Ajay Pal Singh son of Parambir Singh and Rajesh Kumar son of Hari Chand are hereby allowed and they are ordered to be acquitted of the charges framed against them. The appeal of Arminder Singh appellant is partially allowed so far as the modification of sentence is concerned. In all other aspects the appeal of Arminder Singh is hereby dismissed. The substantive sentences awarded to Arminder Singh of 5 years each under Section 450 and 307 IPC shall run concurrently.

Let the intimation about the disposal of these appeals be sent to the Chief Judicial Magistrate, Ferozepur and to the jail authorities Ferozepur so that this judgment may be implemented.

Appeals partly allowed.