Balbir Singh and ors. vs State of Punjab

S.K. Jain, J.

Appellants Balbir Singh s/o Kirpal Singh, Major Singh s/o Baj Singh, Nachhattar Singh s/o Bachan Singh, Bachan Singh s/o Kartar Singh and Kabul Singh s/o Kirpal Singh, all residents of village of Kot Mohammad Khan, district Ferozepur, through this appeal have challenged the judgment of conviction and order of sentence, both dated 15.2.1991, passed by Additional Sessions Judge, Ferozpur vide which he had convicted and sentenced them as under :

(i) Each of the five appellants under section 147, Indian Penal Code, to undergo rigorous imprisonment for one year for their, on 2151988, at 6 p.m. in the area of village Kot Mohammad Khan for their being the members of unlawful assembly common object whereof was to commit the murder of Pritam Singh and to cause injury to Hazara Singh and at that time therein being armed with Gandasa and Takwa;

(ii) Each of the five appellants under section 302/149, Indian Penal Code, to undergo life imprisonment and to pay a fine of Rs. 2000/ and in default thereof to further undergo rigorous imprisonment for six months for their, on the same date, time and place, in prosecution of the above said common object of their unlawful assembly having committed the murder by intentionally or knowingly caused the death of Pritam Singh;

(iii) Appellant Major Singh under section 325 of the Indian Penal Code to undergo Rigorous Imprisonment for two years and to pay a fine of Rs. 500/ or in default thereof to further undergo Rigorous Imprisonment for four months for his having voluntarily caused grievous hurt to Hazara Singh; and

(iv) Appellant Balbir Singh, Bachan Singh, Kabul Singh and Nachhattar Singh under Section 325/149 of the Indian Penal Code to undergo Rigorous Imprisonment for two years and to pay a fine of Rs. 500/ each or in default thereof to further undergo Rigorous Imprisonment for four months each for their being members of unlawful assembly with Major Singh who had voluntarily caused grievous hurt to Hazara Singh in prosecution of the common object of that assembly.

Feeling aggrieved against the above referred conviction and sentence, they have preferred this appeal.

In brief, the facts of the prosecution case are that Hazara Singh son of Pritam Singh (deceased) was going to the clinic of Doctor Dalbara Singh for getting medicine for his headache at 6 p.m. on 2151988. When he reached near the house of Kalu Singh he saw appellants Bachan Singh and Kabul Singh empty handed, Major Singh armed with takwa and Balbir Singh and Nachhattar Singh with a gandasa each, coming from the side of their house. On seeing him, appellant Bachan Singh raised a lalkara and caught hold of Hazara Singh, Kabul Singh caught hold of Hazara Singh from his beard and then both of them started dragging him towards their house. Pritam Singh father and Karamjit Singh brother of Hazara Singh were attracted to the spot on hearing an alarm raised by him. On seeing Pritam Singh,Bachan Singh appellant again raised a lalkara whereupon Balbir Singh appellant dealt a gandasa blow from its sharp side on the right side of the head of Pritam Singh. Nachhattar Singh appellant also dealt a gandasa blow on the head of Pritam Singh. On receiving the injuries Pritam Singh tell down on the ground. Hazara Singh was struggling to get himself released from the clutches of Bachan Singh and Kabul Singh appellants. Major Singh appellant gave a takwa blow from its sharp side on the head of Hazara Singh. Thereafter, the accused made good their escape alongwith their respective weapons. Ujjagar Singh, maternal uncle and Smt. Surjit Kaur, mother of Hazara Singh removed him to Primary Health Centre, Kot Issa Khan in an injured condition where Dr. Hari Kishan Singhal referred them to Christian Medical College Hospital, Ludhiana after giving them first aid. He sent ruqa Ex. PW2/A to Station House Officer, Police Post Kot Issa Khan in this regard. In Christian Medical College Hospital, Ludhiana PW3 Doctor Paramjit Singh had examined Hazara Singh at 10.50 p.m. on 2151988 and found the following injuries on his person :

Laceration scalp 3 cms, in the parietal region.

The mode of injury blunt trauma. Type of injury; Grievous. Duration was fresh.

The doctor opined that the injury could be possible by a sharp edged takwa.

Doctor Yogesh Kumar Sareen PW1 examined Pritam Singh in Christian Medical College Hospital, Ludhiana at 11.15 p.m. on 2151988 and found following injuries in his person :

15 cms long scalp laceration in the right fronto parietal region.

5 cms long scalp laceration 3 cms parallel and medial to the above laceration.

Depressed fracture of right fronto parietal bone in the base of wound No. 1.

Brain laceration with brain matter protruding through the wound No. 1 resulting in left hemiparesis.

Nature of all the injuries was dangerous to life. Mode of injuries penetrating due to sharp edged weapon. Duration of the injuries was fresh.

On 2251988 at 1.50 a.m. a team of doctors including Dr. Yogesh Kumar Sareen PW1 performed right cranietomy decompression and Dural repair for the open head injury depressed feature right fronto parietal region and brain laceration.

Assistant Sub Inspector Mangat Singh PW12 received ruqa Ex. PW2/A in Police Station Dharamkot on 2151988. He rushed to Christian Medical College Hospital, Ludhiana reaching there on 2251988. To the incharge of the ward in the hospital, he moved application Ex. PW1/B in order to obtain the opinion as to whether Pritam Singh was fit to make a statement Dr. Yogesh kumar Sareen vide his endorsement Ex. PW1/C declared that Pritam Singh was unfit to make the statement. On inquiry Assistant Sub Inspector Mangat Singh was informed that Hazara Singh PW had been discharged. He met him in front of the ward of Christian Medical College Hospital, Ludhiana where Pritam Singh was admitted. He recorded his statement Ex. PW7/A. After recording his endorsement thereupon he sent the same to Police Station Dharamkot through the Head Constable Barjinder Singh Sub Inspector Surinder Singh, Station House Officer, Police Station Dharamkot, on receipt of the said ruqa recorded formal First Information Report Ex. PW11/A and then rushed to the spot. On reaching there he inspected the spot and summoned Karamjit Singh and Vakil Singh. On their arrival and on the pointing out of Karamjit Singh he prepared rough site plan Ex. PW13/A on the spot. He lifted blood stained earth vide recovery memo Ex. PW11/A attested by Vakil Singh and Head Constable Baljinder Singh. He recorded the statement of Vakil Singh, Head Constable Baljinder Singh. On 3151988 Hazara Singh PW had informed him about the death of his father Pritam Singh in the hospital. Therefore, he converted the offence to one under Section 302 of the Indian Penal Code. He caused the special report sent to the learned Illaqa Magistrate and himself reached Christian Medical Hospital, Ludhiana prepared inquest report Ex. PW8C, recorded statements of Kabul Singh and Vakil Singh caused the dead body sent for postmortem examination through Constable Kuldip Singh and Assistant Sub Inspector Mangat Singh.

The autopsy on the dead body of Pritam Singh was conducted by Doctor A. S. Sahni (PW8) on 161988 at 9.15 a.m. He found the following injuries on the dead body :

Partially healed wound scar 15 cms long on the right fronto parietal region but the wound was open 3 cms on the front part.

Partially healed wound scar 5 cms long on the right frontal region 3 cms away from injury No. 1 on the medial side wound was open in the middle.

Burn hole with the drainage tube was present on the top of the scalp.

On dissection clotted blood on the right fronto parietal region was found and part of frontal and parietal bone were missing. Brain membrances were stitched and the brain was lacerated on the right side. Heart was normal and right side contained blood. All other organs were normal. The autopsy Surgeon opined that the death was caused by shock and haemorrhage due to injury to the brain which was sufficient to cause death in ordinary course of nature. All the injuries were antemortem in nature. The probable time between the injuries and death was about nine days and between death and postmortem examination on was 36 hours.

Assistant Sub Inspector Daljit singh PW15 obtained the warrants of arrest of Nachhattar Singh appellant in the month of August 1988, reached Tej Pur (Assam), obtained necessary permission from the Air Force Authorities and arrested him. He was brought to Police Station Dharamkot on 1581990. Chanan Singh of village Saidekhan produced Balbir Singh, Kabul Singh and Major Singh before Assistant Sub Inspector Mangat Singh on 2151988. He arrested them. Accused Bachan Singh and Nachhattar Singh were arrested on 761988 by Assistant Sub Inspector Mangat Singh. After completion of the investigation and other formalities Sub Inspector Surinder Singh PW13 put up the challan of the accused in the Court on 1781988.

Before the trial Court in order to prove the above referred case, the prosecution examined sixteen witnesses besides tendering the affidavit of Moharrir Head Constable Baldev Singh, Constables Parkash Singh, Kuldeep Singh and report of chemical examiner Ex. PA. The version of Balbir Singh appellant in his statement under Section 313 of the Code of Criminal Procedure is that he was falsely implicated due to enmity. According to him in the year 1985 the complainant party had implicated them in a Criminal Case but they were acquitted. He also opposed Hazara Singh PW in the election for the office of Sarpanch and the witnesses are stated to have deposed falsely due to relationship with the deceased. Major Singh appellant has given his version in his statement under Section 313 of the Code of Criminal Procedure to the effect that he had opposed Hazara Singh PW in the election for the office of Sarpanch and that he had been falsely implicated. Appellant Nachhattar Singh has given his own story to the effect that he was posted at Tej Pur (Assam) as CPS Security Section, in Air Force, Tejpur. He got leave in the month of April 1988 in order to appear in the examination of Master in Physical Education of Nagpur University. He remained at Dhantoli (Nagpur) in this connection from 1441988 to 2551988. It took three days from his village to reach Dhantoli and further three days for reaching Tejpur from Dhantoli. Bachan Singh accused has stated that he had opposed Hazara Singh in the election for the office of Sarpanch prior to the alleged occurrence and, therefore, he had been falsely implicated due to enmity. Appellant Kabul Singh has also deposed that at the instance of the complainant party he and Balbir Singh were involved in a criminal case in the year 1985 but they were acquitted. He had also opposed Hazara Singh in the election to the office of Sarpanch. He has pleaded false implication.

13A. In defence evidence, the appellants have examined DW1 Ajmer Singh Pharmacist, Primary Health Centre, Dharamkot to prove that on 2151988 Dr. Sahil Gupta was incharge of the Primary Health Centre, Dharamkot and was present there. On that day Senior Medical Officer had inspected the hospital. The residence of the doctor as well as that of the Pharmacist will within the hospital compound. Nachhattar Singh appellant in order to prove his plea of alibi has examined DW2 Rajinder Parsad Divedi. He was running a lodge under name and style of "New Sangeeta" at Dhantoli. He also tendered into evidence copy of the degree in Physical education Ex. DH. copy of the order of the High Court dated 1011979 Ex. DJ and copy of the order dated 29111988 Ex. DK.

The trial Court after appraising the evidence came to the conclusion that the delay in lodging of the First Information Report could not be termed to be such a defect that would be fatal to the case of the prosecution : that much mileage could not be gained by the defence on account of the fact that the injuries found on the dead body of Pritam Singh had been described by Doctor Sarin PW1 as lacerated wounds because in the opinion of the doctor the injuries on Pritam Singh had been caused by a sharp edged weapon; that grandfather of Hazara Singh and the father of Bachan Singh were brothers; that accused Kabul Singh and Balbir Singh had a grouse against the complainant party for having implicated them in a false case for causing injuries to Pritam Singh deceased and on this score it is possible that immediately after their acquittal the accused party pounced upon an opportunity of teaching the witnesses a lesson for their aforementioned action; that the accused had a motive to commit the crime & that Nachhattar Singh had not been able to prove the plea of alibi put forth by him.

We have heard the learned counsel for the parties besides Perusing the record. There is considerable force in the contention of Mr. R. S. Grai, Senior Advocate for the appellants that appellants Bachan Singh and Kabul Singh had been falsely implicated in this case. The prosecution story is that Bachan Singh after raising a lalkara had caught hold of Hazara Singh into his grip. Kabul Singh appellant had also caught hold of him by his beard. Both of them dragged him towards their house while he was trying to rescue himself from their clutches. It is a matter of common knowledge that in such a situation the hair of the beard of Hazara Singh must have been uprooted and he must also sustained certain injuries on his person. Doctor Paramjit Singh PW3 who examined Hazara Singh did not find any mark of injuries on his face or any other part of the body. Moreover, unsure language has been used by Hazara Singh PW7, the first informant, as to what the exhortation was, as exhortation or a lalkara is an insinuation which can have chances of adding to the principal accused an innocent person. In the peculiar circumstances of this case, as mentioned herein before, it would not be safe to rely on the case of the prosecution to limited extent of participation of the appellant Bachan Singh in the incident.

Kabul Singh appellant had not taken any part in the occurrence. He had not caused any injury either to Pritam Singh or to Hazara Singh. He too seems to have been falsely implicated. Therefore, the presence of both, Bachan Singh and Kabul Singh appellants, at the time and place of occurrence has not been established beyond shadow of reasonable doubt. Therefore, they deserve to be acquitted.

Learned counsel for the appellants has submitted that there is an inordinate delay of about 24 hours in lodging the First Information Report and that this time was consumed in giving shape to an imaginative prosecution version after sounding the witnesses. This argument does not find favour with us. Occurrence in this case be taken place at 6 p.m. on 2151988. Hazara Singh PW7 has testified that after the accused had left the spot his brother Karamjit Singh and maternal uncle Ujjagar Singh arranged for truck belonging to Baj Singh and removed him and Pritam Singh to Kot Issa Khan as on enquiry made at Dharamkot it was revealed that Doctor was not available in that Primary Health Centre. Although, by examining Ajmer Singh, Pharmacist, Primary Health Centre, Dharamkot as DW1, an effort has been made on behalf of the appellants to show that Doctor Sunil Gupta was present there on that day but the testimony of this witness carries no weight in view of the fact that in his cross examination he has admitted that he was not posted in Primary Health Centre, Dharamkot during the relevant time and there was no attendance record maintained in the Primary Health Centre regarding the presence of the doctor and other employees after office hours. The Senior Medical Officer is stated to have inspected the Primary Health Centre on that particular date (2151988) but this witness admitted that no time was given under the signature of the Senior Medical Officer from which it could be associated as to at what time he had inspected the Primary Health Centre. Dr. Hari Krishan Singhal PW2 had given the first aid to Pritam Singh on that very day at 8.30 p.m. in Primary Health Centre, Kot Issa Khan and in view of the serious condition of Pritam Singh had referred him and Hazara Singh to Christian Medical College Hospital, Ludhiana, where Yogesh Kumar Sareen PW1 had examined Pritam Singh on 2151988 at 11.15 p.m. and found four injuries on his person which have been reproduced in the earlier part of this judgment. Dr. Paramjit Singh PW3 had examined Hazara Singh PW in Christian Medical College Hospital, Ludhiana at 10.50 p.m. on 2151988 and found laceration scalp 3 cm in the parietal region. This injury has also been reproduced herein before while discussing the testimony of this doctor.

Assistant Sub Inspector Mangat Singh PW12 had on 2151988 recorded the statement Ex. PW7/A of Hazara Singh as he had reached statement Ex. PW7/A of Hazara Singh as he had reached that hospital after he received ruqa Ex. PW2/A in Police Station Dharamkot at 1 p.m. On the basis of the said ruqa Ex. PW7/A the First Information Report was recorded at 4 p.m. on 2251988.

We do not find any substance in the argument on behalf of the appellants that some one from the complainant party could go to Police Station, Dharamkot at a distance of eight miles and lodge the First Information Report because in view of the serious condition of Pritam Singh their anxiety to save his life was appreciable and under the peculiar circumstances of this case it was not unnatural that instead of first getting these case of Pritam Singh. Sometime was consumed by Karamjit Singh and Ujjagar Singh in arranging a truck from Baj Singh and in removing the two injured persons to Primary Health Centre, Kot Issa Khan because on enquiries made at Dharamkot it was revealed that doctor was not available in the hospital there.

The next argument of the learned counsel for the appellants to the effect that there is a complete absence of motive for the accused to have committed the crime is also without any basis Hazara Singh PW7 and Karamjit Singh PW10 have consistently stated that on an earlier occasion Kabul Singh and Balbir Singh appellant had inflicted injuries on the person of Pritam Singh for which they were prosecuted but acquitted. So after their acquittal athe appellants certainly had a motive to take revenge of their false implication.

The plea of alibi taken by Nachhattar Singh has rightly been rejected by the learned trial Court. Copy of certificate. Ex. DH shows that one Nachhattar Singh Sandhu had cleared the examination of Master of Physical Education of Nagpur University held in March April, 1988. No effort has been made to connect this certificate with appellant Nachhattar Singh. Perusal thereof would show that father''s name and address of the candidate has not been given therein. Moreover, the name of the said appellant is Nachhattar Singh whereas in the said certificate the name of the candidate is mentioned as Nachhattar Singh Sandhu. Even in his statement under Section 313 of the Code of Criminal Procedure the said appellant has not given his name as Nachhattar Singh Sandhu. Moreover, this certificate does not show as to on what dates that examination of Master of Physical Education was held Learned counsel for the said appellant has pressed into service the testimony of Rajinder Parsad Divedi DW2 but it also does not in any manner improve his case. At best on the basis of his evidence it could be said that Nachhattar Singh had been paying rent for occupying one portion of room No. 26 i.e. 26A in the lodge for the period from 1441988 to 2251988. The witness has himself admitted that the documents produced by him were full of discrepancies. Therefore, the learned trial Court has rightly found it unsafe to rely on these documents. Non production of the date sheet by Nachhattar Singh appellant raises an irresistible presumption that it would have gone against him had it been produced. Now on to the alternative argument on behalf of Nachhattar Singh appellant to the effect that his trial was illegal as the learned Additional Sessions Judge had no jurisdiction to try him without the consent of the Air Force authorities because at the relevant time he was serving as a regular Airman in the Indian Air Force.

In order to appreciate this argument, provisions of Section 475 of the Code of Criminal Procedure, Section 72 of the Air Force Act, 1950 Rule 3 and 4 of Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 have been examined. The same are reproduced below for ready preference :

"Section 475 Cr. P. C. Delivery to Commanding Officers of persons liable to be tried by Court Martial

(1) The Central Government may make rules consistent with this Code and the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950, (45 of 1950) and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, naval or air force law, or such other law, shall be tried by a Court to which this Code applies or by a Court martial and when any person is brought before a Magistrate and charged with an offence for which his is liable to be tried either by a Court to which this Code applies or by a Court Martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, naval or air force station, as the case may be, for the purpose of being tried by a CourtMartial."

Section 72 of the Air Force Act, 1950 72. Civil Offence not triable by Court martial A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person shall not be deemed to be guilty of an offence against this Act and shall not be tried by a courtmartial, unless he commits any of the said offences

(a) while an active service, or

(b) at any place outside India, or

(c) at a frontier post specified by the said Government by notification in this behalf."

Rule 3 and 4 of Criminal Courts and CourtMartial (Adjustment of Jurisdiction Rules, 1952

"3. Where a person subject to military, naval or Air Force law is brought before a Magistrate and charged with an offence for which he is liable to be tried by a courtmartial, such Magistrate shall not proceed to try such person or to issue orders for his case to be referred to a Bench or to inquire with a view to his commitment for trial by the Court of Sessions or the High Court for any offence triable by such Court, unless (a) he is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by competent military, naval or Air Force authority, or

(b) he is moved thereto by such authority.

(4) Before proceeding under clause (a) of rule 3 of the Magistrate shall give written notice to the Commanding Officer of the accused and until the expiry of a period of seven days from the date of the service of such notice he shall not

(a) convict or acquit the accused under Sections 243, 245, 247 or 248 of the Code of Criminal Procedure, 1898 (v of 1898), or hear him in his defence under section 244 of the said Code; or

(b) frame in writing a charge against the accused under section 254 of the said Code; or

(c) make an order committing the accused for trial by the High Court or the Court of Sessions under Section 243 of the said Code".

From the combined reading of the above provisions of sections 72 of the Air Force Act, 1950 and rules 3 and 4 of the Criminal Courts and Courtmartial (Adjustment of Jurisdiction) Rules, 1952, it is evident that if a person subject to the Air Force Act commits an offence of murder against a person not subject to military, naval or air force law, he shall be triable by a Court Martial if he commits the said offence, (a) while on active service, or (b) at any place outside India, or (c) at a frontier post specified by the Central Government by notification in this behalf. But if such a person is brought before the Magistrate and charged, such Magistrate shall not proceed to try such person to enquire with a view to his commitment for a trial by the Court of Sessions, unless (a) he is of the opinion, for reasons to be recorded, that he should so proceed without being moved thereto by competent military, naval or air force authorities, or (b) he is moved thereto by such authority. In first eventuality, the Magistrate was obliged to give written notice to the Commanding Officer of the accused and until the expiry of a period of seven days from the date of service of such notice he shall not make an order committing the accused for trial by the Court of Sessions.

Referring to the evidence of PW9 G. S. Gill, Warrant Officer, Air Force Station, Halwara, the learned counsel for the State has argued that at the relevant time. Nachhattar Singh was on leave and, in any case, was not on active service and therefore, his case would not be covered by rule 3 and 4 of the Rules ibid. This argument at first sight attractive, in our opinion, not tenable in view of the fact that the Central Government had issued Notification No. S. R. O. 8E on 5121962 in the following terms :

"In exercise of the powers conferred by section 9 of the Air Force Act, 1950 (4 of 1950), the Central Government hereby declares that all persons subject to the said Act, shall, wherever they may be serving be deemed to be on active service within the meaning of the said Act, for the purposes of the said Act, and of any other law for the time being in force."

Although neither of the parties had placed the abovesaid notification on the record but the same finds mention in Ajit Singh v. State of Punjab, AIR 1970 P & H 351 (Full Bench) That being so, the trail Court was obliged to follow the procedure laid down in the abovesaid rules.

Scrutiny of the record of the committing Magistrate and that of the trial court shows that in execution of the warrant of arrest issued by the Magistrate on 2871988, the Air Force authorities had put Nachhattar Singh in the custody of ASI Daljit Singh who carried the said warrant for execution on 1081988, Vide Report Exhibit PW15/A, dated 1581988, on the back of the said warrant the said accused was lodged in judicial lockup. The handing/taking over certificate signed by Vijay Parkash, Flying Officer, station Adjutant No. 11 Wing, Air Force, c/o 59 APO and by ASI Daljit Singh of Police Station, Dharamkot, is on the record.

By necessary implication and logical corollary, the conclusion that would follow is that by placing the accused in the custody of the police officer in execution of the warrant of arrest issued by the Judicial Magistrate Ist Class. Zira, the Air Force authorities had opted for his trial by the ordinary criminal court. The said conclusion also finds support from the fact that the Commanding Officer, Air Force Station,Halwara, vide letter dated 1821991, sought the information with record to the fate of the case from the learned trial Court. As mentioned above, vide handing/taking over certificate, the Air Force authorities had put Nachhattar Singh accused in the custody of ASI Daljit Singh on 1081988. The case was committed by the Magistrate to the Court of Sessions for trial on 891988. Thus, in view of the above facts there should be no hesitation in holding that the procedure prescribed in rules 3 and 4 of the Rules ibid, read with section 72 of the Air Force Act was duly complied with by the trial court and hence the trial of Nachhattar Singh was not in any way vitiated.

The judgement rendered by their Lordships of the Supreme Court in Superintendent and Rememberancer of Legal Affairs, West Bengal v. Usha Ranjan Roy Choudhury and another, AIR 1986 Supreme Court 1655 (1986 Cri. LJ. 1248), cited at the bar by the learned counsel for the appellants has also been thoroughly examined by us but the facts of that case are tengent apart from those involved in the case in hand. In that case, three accused persons who were tried by the Judge presiding over the Fourth Addl. Special Court, Calcutta, were Army Officers charged with offences which fell within the purview of section 52 of the Army Act, which deals with the offences in respect of property and according to which the offences could be tried both by ordinary criminal court as also by the courtmartial, both of which had concurrent jurisdiction. In that case one of the contentions urged before the High Court on behalf of the state with a view to substantiate the contention that learned trial Judge had jurisdiction to take cognizance of the case and that the trial was not null and void notwithstanding the fact that the procedure prescribed by the Rules had not been followed, was that in view of a letter addressed by the Brigadier of Division concerned to the police officer for investigating the offence it can be said by necessary implication that the Army authorities had opted for the trial of the case by the ordinary court. The High Court had repelled all the contentions including the one mentioned above & had allowed the appeal of the convicted officer and the Supreme Court had also upheld the said decision of the High Court. But, in the case in hand the offences committed by Nachhattar Singh appellant are not in respect of property. The provisions of section 52 of the Army Act are analogous to section 52 of the Air Force Act. Herein, the appellant Nachhattar stands charged and convicted under Sections 147, 302/149 and 325/149 of the Indian Penal Code. These offences fall under section 72 of the Air Force Act, corresponding to section 70 of the Army Act. Again, in the above cited Supreme Court case, a letter had been addressed by the Brigadier of the Division concerned to the police officer for investigating the offences but, herein, in execution of the warrant of arrest issued by the Additional Sessions Judge, the Force authorities had put Corporal Nachhattar Singh in the custody of police officer who carried the said warrant for execution. Not only this, a certificate for handing/taking over of the custody of Corporal Nachhattar Singh was also signed by the Air Force authorities as also the police officer executing the warrant on behalf of the Court. So herein, the Air Force authorities had by necessary implication and logical corollary consented to the trial of Corporal Nachhattar Singh by the ordinary criminal Court. Not only this,after having put Nachhattar Singh in judicial custody on 1081988, the Air Force authorities waited for the result of the trial and after about two years and four months, vide their letter dated 1821991, as mentioned in the earlier part of this judgment, sought information from the Court with regard to the fate of the case.

In view of the above peculiar circumstances of this case, it can unhesitatingly be held that the ratio in the above cited Supreme Court case is not applicable to the fact of this case.

The question then arises whether accused Balbir Singh, Nachhattar Singh and Major Singh intended to kill Pritam Singh and cause grievous hurt to Hazara Singh PW. In this regard, it is noteworthy that the manner in which the occurrence took place shows that there was no prior meeting of minds of three accused and they did not act in furtherance of their such common intention whatsoever. It were Balbir Singh and Nachhattar Singh accused who took to their heads to liquidate. Pritam Singh and in furtherance of their such common intention Balbir Singh dealt a Gandasa blow from its sharp side on the right side of the head of Pritam Singh. Nachhattar Singh also dealt a Gandasa blow on the head of Pritam Singh. Major Singh did not aim any blow with his Takwa on the person of Pritam Singh. Such conduct of Major Singh accused shows that he did not share common intention with his coaccused Balbir Singh and Nachhattar Singh to kill Pritam Singh. Similarly, Balbir Singh and Nachhattar Singh accused did not cause any injury to Hazara Singh and, therefore, none of them shared common intention with their coaccused Major Singh to cause grievous hurt to Hazara Singh. It was Major Singh accused alone who dealt a Takwa blow from its sharp side on the person of PW Hazara Singh, thereby causing a grievous injury on his head.

The medical evidence comprised of the testimony of Dr. Yogesh Sareen PW1 who 2151988 at 11.15 P.M. had madicolegally, examined Pritam Singh in CMC Hospital, Ludhiana and that of Dr. A. S. Sahni PW8, who latter on conducted the postmortem examination on the dead body of Pritam Singh on 1161988 at 9.15 A.M., shows that the injuries found on the person/dead body of Pritam Singh were sufficient to cause death in the ordinary course of nature and had actually resulted in the death of the deceased. The case of appellants Balbir Singh and Nachhattar Singh would thus be covered by clause Third of section 300 of the Indian Penal Code and they would be guilty of the offence of murder of Pritam Singh.

PW3 Paramjit Singh, who had examined Hazara Singh PW on 2151988, at 10.50 p.m. in CMC Hospital, Ludhiana, had found a 3 cm. long lacerated wound on his scalp in the parietal region. He had opined this injury to be grievous. Major Singh appellant would, therefore, be of the offence of voluntarily causing grievous hurt to Hazara Singh PW.

Consequently, for the reasons recorded above, the conviction and sentences of all the five appellants under section 147 and 302/34 IPC and that of Balbir Singh, Nachhattar Singh, Bachan Singh and Kabul Singh under section 325/149 IPC as ordered by the learned trial Court is set aside. On the other hand, appellant Balbir Singh and Nachhattar Singh are held guilty of an offence of murder of Pritam Singh and convicted under section 302/149 IPC. Each one of them is sentenced to imprisonment for life and to pay a fine of Rs. 2000/, or in default of payment thereof to undergo further RI for six months. The conviction of Major Singh appellant under section 325 IPC and sentence of RI for two years and fine of Rs. 500/ or in default of payment thereof to undergo further RI for four months as ordered by the learned trial Court, is upheld. Appellants Bachan Singh and Kabul Singh are acquitted. Both these appellants be set at liberty forth with if not required in any other case. Fine, if deposited, be refunded to them.