Balkar Singh vs The State of Punjab

K.C. Gupta, J.—This appeal is directed by Balkar Singh accused against judgment and order dated 19.8.1989 passed by Shri Nirmal Singh, the then Addl. Sessions Judge, Faridkot, vide which he found Balkar Singh guilty and convicted him u/s 304(II) IPC and sentenced him to rigorous imprisonment for 7 years and to pay fine of Rs. 2000/-; in default of payment of fine, he was further ordered to undergo R.I. for 4 months.

Briefly stated, the facts are that Inder Singh father of Gurdev Singh and Guru Singh used to reside with Gurdev Singh. Gurdev Singh used to cultivate land to the extent of 2/3rd share while Gura Singh used to cultivate land to the extent of 1/3rd share. Inder Singh died four years prior to the occurrence. Thereafter, the land was partitioned between Gurdev Singh and Gura Singh and they started living separately. PW3 Avtar Kaur complainant is the wife of Gurmel Singh. Gura Singh is her father-in-law. Sister of Gura Singh is married to Laik Singh in Rajasthan.

On 21.10.1988 Laik Singh visited the house of Gurdev Singh. He asked Gurdev Singh that the marriage of his daughter was fixed and he should incur half of the expenses of the marriage. Upon it Balkar Singh appellant visited the house of Avtar Kaur complainant and asked Surjit Kaur (now deceased) wife of Gura Singh that she should spend half of the amount in the marriage of the daughter of Laik Singh. Surjit Kaur was the mother-in-law of PW3 Avtar Kaur. It was about 8.00A.M. At that time Surjit Kaur was collecting rubbish in the courtyard. She refused to incur half of the expenses on the marriage of the daughter of Laik Singh but Balkar Singh told that they would take half of the expenses from Gura Singh husband of Surjit Kaur and started abusing. PW Amarpal Kaur sister of Avtar Kaur PW was also present in the courtyard at that time. Gurdev Singh raised Lalkara. Balkar Singh appellant gave a brick blow to Surjit Kaur which hit her on her chest. As a result of brick blow, Surjit Kaur fell down on the ground with her face upward. PW3 Avtar Kaur and PW4 Amarpal Kaur lifted Surjit Kaur and put her on the cot but by that time she had died. In the meantime Gurmel Singh and Gura singh had also reached there. Gurmel Singh and Amarpal Kaur remained with the dead body while Avtar Kaur along with her father-in-law Gura Singh proceeded towards police station to lodge to report. However, police, met them at the bus stand of their village where Avtar Kaur made statement Ex.PD to the police. It was read over to her and she thumb marked the same after admitting it to be correct.

PW5 ASI Gurbax Singh sent the statement of Avtar Kaur to the police station upon which formal FIR Ex.PD/1 was recorded by ASI Beera Singh. Thereafter, ASI Gurbax Singh went to the spot along with Avtar Kaur etc; inspected the site and prepared the rough site plan Ex.PE/1 with correct marginal notes. He took not possession one brick Ex.P1 from the spot vide memo Ex.PF/1. He prepared the inquest report Ex.PH of the dead body of Surjit Kaur and sent it to the hospital for post mortem examination.

PW1 Dr. Amarjit Singh conducted autopsy on the dead body of Surjit Kaur on 22.10.1988 at 4.00.M. and found the following injury on her person:-

One bruise 10 cm x 6 cm on the front of the chest more towards left side, 3 cm below left clavical. Underneath ribs were fractured.

On dissection of the chest, 3rd and 4th ribs were fund fractured on the left side. Muscle underneath was also ruptured. Left plurea and left lung were pierced and ruptured. Right auricle of the heart was pierced and ruptured. Media stinal cavity was full of blood. In his opinion, the death was due to shock and haemorrhage which was caused by injury No. 1 and was ante mortem in nature and sufficient to cause death in the ordinary course of nature. The appellant as well as co-accused Gurdev Singh were apprehended. After completion of the investigation, challan was put up in the Court of Judicial Magistrate Ist Class Gidharbaha who is turn committed the case to the Court of Sessions.

Having made out a prima facie case, Balkar Singh was charged u/s 302, IPC while co-accused Gurdev Singh was charged u/s 302/34, IPC to which they pleaded not guilty and claimed trial.

In order to prove the allegations, the prosecution examined 5 witnesses and tendered in evidence affidavits of formal witnesses Ex.PE and PF.

After close of the prosecution evidence statements of the appellant and his co-accused were recorded u/s 313, Cr.P.C. wherein they denied the prosecution allegations and pleaded false implication.

Balkar Singh appellant, further stated that Surjit Kaur deceased was of quarrelsome nature and she started abusing his mother. He tried to pacify her but in vain and she became furious and tried to grappel with him. He pushed her and she fell down on a wooden peg and sustained the injury. Gurdev Singh co-accused took the plea that he was not present at the spot and was falsely implicated. However, they did not lead any defence evidence.

After hearing learned P.P. for the State and learned defence counsel, Gurdev Singh co-accused was acquitted while Balkar Singh was found guilty and was convicted u/s 304(II), IPC and sentenced as stated above.

Aggrieved by the said judgment and order, Balkar Singh as filed the present appeal.

I have heard Mr. H.S. Gill Sr. Advocate along with Mr. Dharmender Sharma Advocate for the appellant, Mrs. Ravinder Kaur Nihal Singh Wala, DAG, Punjab and carefully gone through the file.

PW3 Smt. Avtar Kaur wife of Gurmel Singh and daughter-in-law of Gura Singh stated that Surjit Kaur was her mother-in-law. She was married with Gurmel Singh about 16 years ago. She next stated that her younger sister Amarpal Kaur was married with Malkit Singh. She further stated that about 7 months prior to her recording statement. Laik Singh who was married with the sister of her father-in-law visited the house of Gurdev Singh and asked that he should incur expenses to the extent of 1/2 share on the marriage of his daughter. Thereafter Balkar Singh appellant visited their house and asked Surjit Kaur that she should incur 1/2 of the amount on the marriage of daughter of Laik Singh but she refused to pay any expenses. At that time, it was 8.00 A.M. and Surjit Kaur was collecting rubbish from the courtyard. She stood up and started quarrelling with Balkar Singh. Amarpal Kaur was also present in the courtyard at that time. Gurdev Singh co-accused raised a Lalkara. Then Balkar Singh gave a brick blow to Surjit Kaur hitting on her chest, after lifting it from there. As a result, her mother-in-law fell down with her face upward. She next stated that she and her sister took her inside and put her on a cot but in the meantime, she had breathed her last.

Her statement is fully corroborated by PW4 Amarpal Kaur. They have been subjected to a lengthy cross-examinations but there is no material contradiction in their statements. They have well stood the test of cross-examination. Their ocular testimony is corroborated by the medical evidence of PW1 Dr. Amarjit Singh who had conducted the post mortem examination on the dead body of Surjit Kaur.

Counsel for the appellant contended that the parties were closely related to each other and there was no intention on behalf of the appellant to cause death of Smt. Surjit Kaur and the fight had taken place all of a sudden and in the heat of moment, the appellant picked up a brick from there and threw it upon Surjit Kaur which hit her on her chest due to which she died. He further contended that there was no intention on the part of the appellant to cause death or to cause such injury for which he could have the knowledge that the injury was likely to cause her death. He further contended that at best, he had an intention to cause grievous hurt which he has committed an offence punishable u/s 325, IPC. For this contention, he has placed reliance upon an authority of this Court; Sikander Singh and Anr. v. State of Punjab 1994 (3) All L R 20 which supports the above contention of the learned counsel.

When Balkar Singh appellant had visited the courtyard, then he was empty handed and as such, he had no pre-meditation but in the moment of heat, the quarrel ensued between Surjit Kaur and the appellant. Balkar Singh picked up a brick from there and threw it on Surjit Kaur. The deceased was aged about 60 to 70 years and was an old lady. Thus, at best it can be said that he had caused grievous hurt for which he is punishable u/s 325, IPC. Consequently, the judgment of the Court below is modified to the extent that Balkar Singh appellant is sentenced u/s 325, IPC instead of Section 304(II), IPC.

Counsel for the appellant also contended that the appellant is the first offender and as such, he should be released on probation and further the occurrence had taken place in the year 1989 i.e. more than 13 years ago and he has suffered the agony of trial for a sufficiently long time, so a lenient view be taken. However, I do not think that it is a fit case where benefit of probation can be allowed to the appellant. But keeping in view the facts and circumstances of the case, he is sentenced to 2 years'' R.I. and fine of Rs. 2000/- for the offence u/s 325, IPC; in default of payment of fine he would further undergo R.I. for six months. With this modification in the sentence, the appeal is dismissed. the bail bonds of the appellant are cancelled. He be taken into custody to serve the remaining portion of his sentence.