Baldev Singh @ Billu @ Hardev Singh vs State of Punjab

Amarjeet Chaudhary, J.

This appeal is at the behest of the appellant who has been convicted under Section 302 of the Indian Penal Code by Sessions Judge Bhatinda vide his judgment dated 12.5.1995 and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/ and in default of payment of fine, to undergo further rigorous imprisonment for six months.

Feeling aggrieved, the appellant has filed this appeal for setting aside his conviction and sentence, as noticed earlier.

The case of prosecution, in brief, is that Chet Singh deceased had three sons namely complainant Tehal Singh, Karnail Singh and Jarnail Singh, Tehal Singh was living with his parents while Karnail Singh and Jarnail Singh were living separately.

On 11.4.1993, at about 8.30/9.00 p.m. Chet Singh was lying on a cot outside his house and his son Karnail Singh was also present there. Tehal Singh complainant came out of the house with meals for his father. He also started talking to his father and brother. The accused came there in drunken condition. The pet dog of the complainant started barking on seeing the accused. The accused started abusing the complainant, his brother and father. They entreatingly told the accused not to abuse them as it was a petty matter. The accused, however, continued abusing. Chet Singh then rose up from his cot and proceeded towards the accused to stop him from abusing. The accused was having a Gatra Kirpan on his body. He took out the Kirpan from the sheath and gave a thrustwise blow in the left flank of Chet Singh who fell down. Tehal Singh and his brother Karnail Singh raised hue and cry. The accused ran away. There was kerosene lamp giving out light at the place where the occurrence took place. Tehal Singh and others made arrangement for conveyance and then brought his father in an injured condition to the hospital at Rampura. He was referred to Bhatinda hospital where he died on 14.4.1993 at about 12.00 noon. It was after the death of Chet Singh that police came to Bhatinda Hospital and recorded the statement of the complainant. After the completion of investigation, the accused was challaned.

After finding a prima facie case, the appellant was chargesheeted under Section 302 of the Indian Penal Code to which he pleaded not guilty and claimed trial.

At the trial, prosecution examined PW 1 Dr. Krishan Gopal, PW 2 Dr. Anil Goyal, PW 4 Tehal Singh, PW 3 Karnail Singh, PW 5 Gurdev Singh, PW 6 Inspector Des Raj and PW 7 Sub Inspector Ajaib Singh.

The incriminating material appearing against the accused was put to him in his statement recorded under Section 313 Cr.P.C. He denied all the material allegations and pleaded that his name was Hardev Singh and not Baldev Singh. He pleaded innocence.

We have heard counsel for the appellant and Mr. Randhir Singh, Deputy Advocate General Punjab and perused the paper book.

The first question to be determined in this case is as to whether the information was given to the police at the earliest opportunity or that the First Information Report was got recorded after making consultations and deliberations.

The counsel for the appellant contended that in this case the occurrence had taken place on 11.4.1993 at 9.00 p.m. whereas the statement of Tehal Singh was recorded on 14.4.1993 at 4.55 p.m. on the basis of which formal First Information Report was recorded at 6.30 p.m. The counsel contended that the First Information Report was recorded after due consultations and deliberations. He further argued that the appellant had inflicted only one injury and that, too, in the heat of passion. He also argued that the weapon of offence is generally carried by the devout Sikhs. In the last, he has contended that the accused has been wrongly convicted under Section 302 of the Indian Penal Code. Offence, if any, made out against the accused in the peculiar facts and circumstances of the case is under Section 304, Part II of the Indian Penal Code.

On the other hand, Mr. Randhir Singh contended that there was no delay in lodging the First Information Report. The doctor (PW 1) who had, in the first instance, examined Chet Singh had sent intimation to Station House Officer, Exhibit PB to the effect that Chet Singh injured had arrived in the hospital at 10.00 p.m. on 11.4.1993 and that the police did not record the statement of the injured immediately and rather deferred the same till 14.4.1994 upto 4.55 p.m. and that it is the police which is to be blamed for the delay in recording the First Information Report. He has further argued that not only the number of injuries but the force with which the injury was given and the part chosen for the same are to be taken into consideration for inferring the intention of the accused. He has further laid stress on the fact that the case squarely falls under Section 302 of the Indian Penal Code and not under Section 304, Part II of the Indian Penal Code and that the accused has been rightly convicted and sentenced by the trial Court, as noticed above.

We have considered the rival contentions of counsel for the parties and have perused the entire paper book.

After giving thoughtful consideration to the matter, we are of the considered view that there is delay in recording the First Information Report but the question to be determined in this case is to whom the delay is attributed i.e. the complainant or the police. Dr. Krishan Gopal, PW 1 who had, in the first instance, medicolegally examined Chet Singh deceased has stated in unequivocal terms that he had sent intimation to the Station House Officer Rampura vide chit Exhibit PB regarding the arrival of injured in the hospital. A cursory look at Exhibit PB reveals as under :

"District Bhatinda.

Police Information Form.

11.4.1993, No. 01908

10.00 p.m.

To

P.S. Rampura Phul,

An injured Chet Singh son of Sher Singh resident of Village Phul has been brought to this hospital with alleged stab injury. The case is being referred to R.H. Patiala. This incident has occurred at Phul. This is for your information and necessary action please."

On perusal of the said document (chit) it is safely found that Dr. Krishan Gopal, PW 1, without loss of any time, informed the Station House Officer, Police Station Phul about the arrival of the deceased in the hospital at Phul with a stab injury on his person and as his condition was serious he was therefore being referred to Rajindra Hospital at Patiala. Upon the receipt of this information, it was incumbent upon the Station House Officer to come to the hospital for recording the dying declaration of the injured. ASI Ajaib Singh, no doubt made an application to seek the opinion of the doctor whether Chet Singh injured was fit to make a statement or not. The doctor certified that the patient had been referred to Civil Hospital, Bhatinda. There is nothing on record to show that ASI Ajaib Singh did go to Civil Hospital Bhatinda for recording the statement of Chet Singh injured till 14.4.1993 when Chet Singh died at Civil Hospital, Bhatinda. After receiving intimation regarding death of Chet Singh, he recorded the statement of Tehal Singh at Civil Hospital, Bhatinda, made his endorsement at 4.55 p.m. and got the case registered against the appellant.

Once it came to the notice of Des Raj the then SHO Police Station Phul that the deceased had been taken to the hospital at Phul in a precarious condition and was being referred to Civil Hospital, Bhatinda, he should have immediately started the investigation of the case and recorded the statement of the injured. For the reasons best known to him he moved an application on 12.4.1993 through ASI Ajaib Singh for seeking the opinion of the doctor regarding the condition of Chet Singh injured and nothing was done till Chet Singh died of the injury. In the instant case, neither Inspector Des Raj, the then Station House Officer, Police Station Phul nor ASI Ajaib Singh made any effort to record the statement of Chet Singh injured either at Civil Hospital, Phul or at Civil Hospital, Bhatinda. Their conduct and the manner in which investigation was carried out in the case is far from satisfactory. It was incumbent upon them to reach the hospital for recording the statement of Chet Singh injured immediately. In the peculiar circumstances of this case, the delay in lodging the FIR could not be attributed to the complainant''s side. The complainant and his brother Karnail Singh remained by the bedside of their father Chet Singh who was seriously injured. The information regarding the arrival of the deceased in an injured condition had already reached the police station. Thus PWs Tehal Singh and Karnail Singh were not required to go to the Police Station to lodge the report. It is unfortunate that both the police officers Des Raj and Ajaib Singh did not take any action on the information supplied to them by the Doctor that deceased had sustained a stab injury and was in a bad shape. It is gross negligence on their part and they are guilty of dereliction of their primary duty.

The delay in recording the First Information Report in such circumstances does not cast any aspersions on the correctness of the incident and the same is not fatal as well. It is a case of single accused and one injury. The deceased, accused and the witnesses were known to each other previously. As such, there cannot be any doubt regarding the identity of the accused. It has come on the record that immediately before the occurrence, there was an altercation between the accused, deceased and the witnesses. The presence of the two eye witnesses on the spot at the time of occurrence is duly proved on the record. They were subjected to lengthy crossexamination by the defence but nothing material could be elicited from them. We are of the considered view that the occurrence, as alleged by the prosecution, did take place in which the accused gave a thrustwise Gatra Kirpan injury on the left flank of Chet Singh who died of such injury subsequently.

There was no previous illwill between the parties. On the contrary, the relations between the parties were cordial. In order to see that Section 304 Part II, of the Indian Penal Code comes into play four requirements are needed to be satisfied :

(i) It was a sudden fight.

(ii) There was no premeditation.

(iii) The act had been done in the heat of passion and rage; and

(iv) The assailant had not taken any undue advantage or acted in a cruel manner.

In the present case, all the four requirements are satisfied. The accused had come in a drunken condition to the place where deceased and his sons were sitting. The pet dog of the deceased, on seeing the accused, started barking, which infuriated the accused and he started hurling abuses at the deceased and the witnesses. The accused was already having Gatra Kirpan and in a fit of rage caused one blow to the deceased. It is clearly proved that it was a sudden fight; there was no premeditation; the accused had not taken any undue advantage or acted in a cruel manner and that the act was done in a heat of passion and rage.

For the foregoing discussion, while maintaining the conviction of the accused, we convert the offence from Section 302 to one under Section 304, Part II of the Indian Penal Code and sentence the accused to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 2,000/ and indefault of payment of fine, to undergo further rigorous imprisonment for one year.

The appeal is allowed in the manner indicated above.