Baldev Singh & Ors vs State

This appeal arises out of an internecine fight between two brothers and their family members vide judgment dated 281994 and 581994 passed

by the learned 2nd Add). Sessions Judge, Jammu, the appellants were convirted under Section 302 read with Section 34 RPC and sentenced to

undergo imprisonment for life and to pay a fine of Rs. 2000 each. The appellant Onkar Singh has also besn convicted under Section 323 RPC and

sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 2000. The deceased Jagdev Singh was the real brother of the

appellant Baldev Singh and uncle of appellant Onkar Singh. The appellants are the father and the son. The matrix of the prosecution case is that on

1771991, the complainant Balwan Singh and his father deceased Jagdev Singh were cultivating their land in village Agwan, Tehsil R.S.Pura, when

at about 8.30 AM the appellant accompanied by Smt. Sunita Devi and Smt. Anita Devi (daughters of appellant Baldev Singh) criminally

trespassed there. The appellants were carrying spades ('Kahis') in their hands and they threatened the deceased and the complainant to

immediately desist from doing any work, otherwise face the physical liquidation. The deceased resisted the threat by pleading that the landtielonged

to him and they were not doing any objectionable act Such an excuse was a bolt from the blue for the appellant Baldev Singh, who lost his senses

and gave a blow with the spade on the head of Jagdev Singh. He was followed by the appellant Onkar Singh who did the same thing as he also

inflicted an injury with the spade on the head. Thereafter, they inflicted more injuries on the back and other parts of the body of the deceased.

When complainant came to the rescue of his father he was attacked by the appellant Onkar Singh, who inflicted two injuries which landed on the

right arm and the back. Smt. Sunita Devi and Smt. Anita Devi threw stones on the complainant and the deceased. The deceased Jagdev Singh fell

on the ground and on this happening, the appellants alongwith Smt. Sunita Devi and Anita Devi disappeared from the spot The complainant took

the injured Jagdev Singh to R.S.Pura Hospital where he was admitted. Babu Ram Sharma, Sub Inspector received the information of the incident

who arrived in the Hospital and recorded the statement of the complainant. The deceased Jagdev Singh was unconscious and he could not regain

senses till he succumbed to the injuries. On the basis of this statement at 1.30 PM, the case was registered under Fir No. 185/91 in PflJiee Station,

R.S.Pura for the Commission of offences under Sections 307/447/324 RPC read with Section 34 RPC. On the same day, the injured Jagdev

Sjngh was shifted to SMGS Hospital, Jammu where he died on 3171991. On 2051992, the appellants alongwith Smt. Sunita Devi and Smt. Anita

Devi were charged by the learned 2nd Addl. Sessions Judge, Jammu fortfie commission of offences under Sections 362/34,447. 323 RPC. They

pleaded not guilty and the prosecution examined Balwan Singh PW1, Smt Raj Kumari PW2, Sahjb Singh PW3, Ajit Singh PVV4, Nasib Singh

PVV5, Subash Singh PW6, Ganpat Rai PW7, Surjit Kumar patwari PW8, Dr. V.K. Verma PW9, Dr. S.D Thakur PW10, Joginder Lai

Constable PW11, Ravinder Kumar Chalotra (SHO Police) PW12 and Babu Ram SI PW13 as witnesses. Relying upon the prosecution evidence,

the learne Judge held the appellants guilty for the commssion of murder of Jagdev Singh. Appellant No.2 was also found guilty for causing simple

hurt to complainant Balwan Singh. They were convicted and sentenced as stated above. The coaccused Smt. Sunita Devi and Smt. Anita Devi

were acquitted.

The appellants have challenged their conviction and sentence on the grounds that the trial court has misappreciated the evidence. The testimony

of sole eye witness namely, complainant Balwan Singh was of shaby and shaky nature but the same has been treated as credulous and relied upon.

He had given two different versions of the alleged occurrence i.e. one in the FIR and the other in his statement in court. It was stated in the FIR

that some inhabitants of the village had witnessed the occurrence but none of them was examined in the court. In the statement given on oath in the

court, he had stated that the villagers were working in their fields at a distance. The deceased had not died because of the injuries sustained by him

but the death was caused because of infection of the wounds. There was no evidence to establish that the appellants had caused the injuries and

they were sufficient in the ordinary course of nature to have caused the death. Undue delay was caused in lodging the report. The statements of the

appellants were not recorded in accordance with the provisions of section 342 Cr. P. C.

Heard the arguments.

The learned counsel appearing for the appellants has contended that there were three witnesses of the alleged occurrence namely, complainant

Balwan Singh, Smt. Raj Kumari and Sahib Singh. Complainant Balwan Singh and Sahib Singh are the sons of the deceased and Smt. Raj Kumari

is his widow. The case was registered at the instance of Balwan Singh whose statement EXPWBS (the basis of FIR) was recorded on the day of

the occurrence (1771991) by Babu Ram PW13. The complainant Balwan Singh had not in the FIR mentioned the names of his brother Sahib

Singh and mother Smt. Raj Kumari to have witnessed the occurrence. But according to him, the occurrence had been witnesses by some

inhabitants of the village Agwan He did not name anybody. Nor such person was examined as a witness. Had his brother and mother witnessed

the occurrence, he would have mentioned this fact in the FIR. The trial judge has weighed this fact in true perspective and rightly discarded the

testimony of these two planted witnesses. After the elimination of the evidence of these two witnesses and in the absence of any account given by

any alleged eye witness of the FIR, there remains the sole testimony of complainant Balwan Singh which because of its diversity of nature and

inherent was not sure about the time of occurrence as in the FIR he had stated that the occurrence took place at about 10.15 AM but in his

statement in the court he has stated that the occurrence took place at 8 AM or 8.30 AM. In his statement in the court, he had resiled from the

statement of the FIR that some inhabitants of the village had witnessed the occurrence. In the FIR the genesis of the occurrence is the criminal

trespass committed by the appellants and coaccused Smt. Sunita Devi and Smt. Anita Devi in the land possessed by the deceased whereas, in the

statement on oath it is stated that the appellants were cutting the common boundary of the land and when they were challenged they made

spontaneous attack with spades. That these material contradictions cannot be reconciled and the irresistible conclusion is that he had not seen the

occurrence and his testimony should be discarded.

Learned Govt. Advocate has contended that the complainant Balwan Singh is a natural witness because he was also assaulted in the attack and

received the injuries at the hands of appellant Onkar Singh. That when Babu Ram PW13 recorded his statement EXPWBS, he was in a dazed

state and a difference of two or 11/2 hours regarding the time of the occurrence will not deface the whole evidence. The allegation made in the FIR

fof the commission of trespass in the land of the complianant subsequently finding no support in his evidence on oath but a new plea that altercation

regarding cutting of the common boundary of the fields by the appellants soon developing into a usual fight is a trivial or insignificant discrepancy

having no relevance to the varcity of the prosecution case.

After considering the rival contentions it has to be seen whether the testimony of the complainant Balwan Singh has to be accepted or rejected.

In case it has to be accepted then upto what extent. There is independent medical evidence as well as the evidence of Babu Ram PW13 that the

complainant did not bat an eye lid to get his injured father and himself admitted in the nearby Govt. Hospital at R.S.Pura. There is mdeical evidence

of corroborative nature that he had recevied two injuries which were of simple nature and could be caused by spade. The account of injuries and

the manner in which they were caused has found support from the medical evidence. It thus cannot be said that he was not present on the spot and

is a got up witness. When his presence is established, the process of sifting his evidence starts It has to be seen how far truth and falsehood can be

separated. He is a rustic villager and at the time of the incident was hardfy 18 years old. When his statement EXPWBS was recorded undoubtedly

he was in trauma as his father was in unconscious state. Here the moot question is the infliction of injuries on the deceased as well as on the

complainant. He has categorically stated that appellant Baldev Singh had dealt a spade blow on the head of the deceased. That second blow of the

spade was given by appellant Onkar Singh which also had landed on the head. The complainant interceded and asked Baldev Singh to desist from

assault whereupon he was also assaulted by the appellant Onkar Singh. The deceased Jagdev Singh had fallen on the grond and then the appellants

indiscriminately caused him the injuries on the head, back and other parts of the body. It it to seen whether the medical evidence has supported this

version or contradiction it. Dr. V.K. Verma, Medical Officer, Govt. Hospital R.S.Pora on 1771991 at 12.45 PM examined the said Jagdev Singh

and found the following injuries on his person:

Lacerated wound occipital region exposing the skull bone about 8 cm;

Irregular wounds lacerated 8 cm X4 cm at centre of vertex limb right side depth of the wound upto bone;

Lacerated wound forehead 6 cm X 1/2 cm upto bone

Bleeding from Nose;

Right index fingure lacerated wound 2 cm X 1/2 cm"".

The Doctor has further stated that these injuries could be caused by spades. The deceased remained as an indoor patient in the SMGS Hospital

Jammu and died on 31 71991. The post mortem was conducted on the dead body by Dr. S.D. Thakur, who had found these injuries on the head

as well as on other parts of the body. The cause of death was due to Craniocerebral injuries. Thus, the medical evidence lends valuable

corroboration to ocular account of the eye witness. In this manner the truth and the false hood has been separated and the substratum of the

deposition is that the complainant Balwan Singh had seen the occurrence and the injuries which were caused by the appellants had proved fatal.

He was not required to give a graphic account of the incident in the FIR. This principle has been elucidated by the Apex Court in the case of

Baldev Singh and anr. Vs. State of Punjab (AIR 1996 SC 372) wherein it is held that FIR is not a substantive piece of evidence. Nonmentioning

of some facts or vague reference to some others is not fatal. Also in the case of Rattan Singh Vs. State of HP (AIR 1997 SC 768) it has been held

by the Supreme Court that:

Criminal Courts should not be fastidious with mere omissions in First Information Statement, since such statement cannot be expected to be a

chronicle of every details of what happened, nor to contain an exhaustive catalouge of the events which took place. That person who furnishes first

information to authorities might be fresh with the facts but he need not necessarily have the skill or ability to reproduce details of the entire story

without anything missing therefrom. Some may miss even important details in a narration. Quite often the Police Officer, who takes down the first

information, would record what the information conveys to him without resorting to any elicitatory exercise. It is the voluntary narrative of the

informal without interrogation which usually goes into such statement. So any omission therein has to be considered alongwith the other evidence to

determine whether the fact so omitted never happened at all.

In the FIR, the complainant had alleged that the occurrence was witnessed by the villagers also, but in his statement in the court he had stated

that at that time there was nobody and the people were working in their fields at a distance. His evidence has already been scrutinized with care

and caution and accepted partly. These discrepancies as has been detailed above are not of such a nature which necessitate his evidence to be

thrown overboard.

Then there remains the objection for not recording the statements of the appellants in accordance with the provisions of Section 342 Cr.P.C.

The requirement of the law is that each such circumstance which is incriminating has to be put specifically, distinctly and separately. Failure to do so

amounts to serious irregularity vitiating the trial if it is shown to have prejudiced the accused. If the irregularity does not, in fact occassion a failure

of justice, it is curable under section 537 of the Code of Criminal Procedure. The record reveals that the trial Judge has put each circumstances for

explanation to the appellants. The incriminating part of the deposition of eye witness Balwan Singh and the opinions of the Doctors with regard to

injuries (Dr. V.K. Verma and Dr. S.D.Thakur) have been put for explanation and the answers were recorded thereto. It is not established how any

prejudice has been caused in not observing the mandates of secion 342 Cr. P. C Thus, the argument is of no avail.

Lastly, it is contended by the learned counsel for the appellants that injuries were caused by the deceased from the blunt side of the spade and

there was no intention to cause the death and in these circumstances the offence under section 302 RPC is not made out, but only an offence under

Section 304 Part II RPC is made out. Section 300 RPC defines murder which is reproduced as under

MurderExcept in the case hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of

causing death, orSecondly, if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the

person to whom the harm is caused, orThirdly, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to

be inflicted is sufficient in the ordinary course of nature to cause death, orFourthly, if the person committing the act knows that it is so imminently

dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for

incurring the risk of causing death or such injury as aforesaid.

There are five exceptions in this section which make culpable homicide as not murder and there is no necessity of reproducing them here. The

present case has to be viewed within the parametres of section 300 R PC in order to hold whether it is a murder or an act of homicide not

amounting to murder. The present occurrence had taken place in a field where the deceased and the complainant were cultivating the land. In case

the version of the complainant is accepted then this land on family partition had come to the share of the deceased and in case the prosecution

witness patwari Surjit Singh has to be believed, then the occurrence took place in the land which was commonly possessed by the deceased and

his brother appellant Baldev Singh. The weapons of offence are agricultural implements i.e. spades. The fight had started for cutting of the common

boundary by the appellants or regarding the planting of paddy saplings in the field. The prosecution has not established that appellants had the

intention of causing the death. The matter requires discussion under head Thirdly' as enshrined in section 300 RFC. It has to be seen whether from

the testimony of the complainant Balwan Singh, it is proved that the appellants had the intention to inflict that particular bodily injury which has

proved fatal and the answer is in the negative. He has stated that appellant Baldev Singh first inflicted an inquiry on the head of deceased with the

spade and the injury was not of serious nature. After this, appellant Onkar Singh had also inflicted an injury on the head and when the complainant

asked them not to beat his father, Mst. Sunita Devi and Mst. Anita Devi had thrown stones. The appellant Onkar Singh caused one injury to the

complainant on his right arm. The second injury was caused witrfthe blunt side of spade on his back. The medical evidence is that these two

injuries on his person were of simple in nature. Thereafter, the witness has stated that appellants had again attacked the deceased with spade and

when he had fallen down, injuries were inflicted on the head and back. Firstly, the deceased was examined on the same day by Dr. V.K. Verma,

who in his certificate EXPWVK has specified five injuries. Injuries No. 1,2 & 3 were on the head. In crossexamination he has stated that blunt

side of spade (Kahi) could have caused these injuries. Dr. S.D. Thakur conducted the postmortem on the dead body of the deceased and has

stated in the statement that injury No. 1 mentioned in the post mortem report was partially healed and infected wound over top scalp in sagital

flame extending from frontal to occupital region 6"" X 3"" bone deep. Injury No.3 was also infected wound over left parietal occipital region 3"" X 2

bone deep. Injury No.4 was 'L' shaped liner fracture over both parietal regions. Injury No.5 was partially healed wound in lumber region 3"" X 1"".

Injury No.6 was wound over left wrist 1"" X 1"", 2"" X 1"", and injury No. 7 was wound over little fingure of right hand 1"" X 2"" X 1 ""14"" X 1""/ 4"". He

has also opined that all these injuries were partially healed and they were all capable of being cured by treatment. Had the patient been given

specialised treatment he would have been saved He has not given any opinion as which of the injury was fatal. Rather, Dr V K Verma has stated

that all these injuries could be caused by spade by using its blunt side. In the presence of such evidence, it cannot be said appellants had the

intention to inflict a particular injury which proved fatal. No question was asked to the medical experts as to which of the injury or all of them were

sufficient to cause death in the ordinary course of nature. Rather, Dr. S.D. Thakurhas stated that in case the deceased would have received proper

treatment, he would have been saved. In the presence of such evidence, it cannot be said that appellants can be convicted for the murder of the

deceased. Rather, it is established from the evidence that the appellants have committed culpable homicide not amounting to murder as the act

done by them was done with the knowledge that it was likely to cause death. Hence, the appeal of the appellants is accepted to the extent that they

are found to have committed offence falling under section 304 Part II RPC read with section 34 RPC and not under Secion 302 RPC. Their

conviction and sentence is accordingly altered from 302 to 304 Part II read with section 34 RPC. They have been undergoing the imprisonment

for the last about six years. In the circumstances of the case this imprisonment which already has been undergone by them is sufficient to meet the

ends of justice. The amounts of fines imposed by the trial judge are kept intact and in default of payment of fines, they shall further undergo

rigorous imprisonment for six months each. The conviction and sentence awarded to the appellant Onkar Singh by the Trial court for the

commission of offence under section 323 RPC is maintained. The reference made by the learned 2nd Additional Sessions Judge, Jammu (No.

36/94) accordingly stands disposed of.