Buta Singh vs State of Punjab

A.S. Nehra, J.

This appeal is directed against the judgment dated 19.9.1992 passed by the Additional Sessions Judge, Ferozepur by which Buta Singh, Hadayat, Anayat and Suba sons of Kalu have been convicted under Section 302 read with Section 34 I.P.C. Anayat has been further convicted under Section 323 IPC and Buta Singh, Hadayat and Suba have been convicted under Section 323 read with Section 34 IPC. All of them have been sentenced to undergo life imprisonment and to pay a fine of Rs. 5,000/ each or in default of payment of fine to further undergo rigorous imprisonment for six months each under Section 302 read with Section 34 IPC. All the accused have been sentenced to undergo rigorous imprisonment for six months each under Section 323 and 323 read with Section 34 IPC.

In nutshell, the prosecution case may be narrated thus :

Complainant Malook had four brothers and two of them namely Pala and Rehma died and Sheela wife of deceased Rehma used to live with Malook and others in one house. On 4.7.1991 at about 8 p.m. accused Hadayat armed with a Takua and accused Suba armed with a Kirpan went to the house of Sheela and insisted her to open the door. Malook who was present in the house asked Suba and Hadayat as to why they were troubling his sisterinlaw and her children whereupon accused Suba and Hadayat tried to kill Malook, who ran out. Sheela alongwith her children also came out and they spent the night in the house of Punnu. The said two accused spent the night on the roof of residential house of Sheela and in the morning they went away. The matter was reported to the Panchayat and the Panchayat reprimanded the accused and got the matter compromised. It was further case of the prosecution that on the following day Malook was coming from the shop of Swarna with bidies at about 8.30 p.m., when accused Buta, Hadayat armed with takuas, Suba armed with a Kirpan and Anayat armed with a Dang came there and Buta raised a Lalkara that he would not spare Malook and so saying he gave a Takua blow from reverse side on the chest of Malook and then accused Anayat gave a Dang blow on right hand of Malook. Malook raised hue and cry, which attracted his brothers Bahla and Pannu to the spot. When Bahla stepped forward to rescue Malook, accused Buta gave a Takua blow on his head and Suba exhorted his coaccused to kill Bahla and thereupon, Hadayat gave Takua blow on the right eye of Bahla. On alarm raised by the complainant party, the accused fled away with their respective weapons.

Prosecution to prove its case has examined PW1Dr. Som Dutt Sood, PW2Dr. Jajbir Singh Sandhu, PW3Sunder Singh, Draftsman, PW4Malooka, PW5Pannu and PW6A.S.I. Sat Pal Singh. The affidavit of constable Swaran Singh, Ex.PX, report of chemical examiner, ExPY and report of Serologist Ex.PZ were tendered in evidence.

Dr. Som Dutt Sood examined MalookaPW4 on 6.7.1991 at 2.30 p.m. and found the following injuries on his person :

A swelling 1.5 cms x 1.5 cms on the back and middle of right index finger with overlying lacerated wound .75 cm x .25 cm. Clotted blood was present.

Complained of pain in the anterior point of chest.

Dr. Jajbir Singh Sandhu examined Bahla at 8 a.m. on 6.7.1991 and found the following injuries on his person :

An incised wound 2.5 cms x 0.5 cm on right parietal region 12 cms from right pinna. Clotted blood was present and Xray was advised.

Bluish swelling on right eye 5 cms x 3 cms.

According to this witness, the patient was semiconscious and his B.P. was 110/70 MM Hg and pulse was 80 per minute regular good volume and pupils were reacting to light equally. According to the doctor injury No. 1 caused by sharpedged weapon was kept under observation while injury No. 2 caused by blunt weapon was declared to be of simple nature and the duration of the injuries was within 6 to 24 hours. He also proved Ex.PB carbon copy of the medicolegal report of Bahla and Ex.PB/1 the pictorial diagram showing the seat of injuries. He also testified that on police request Ex.PC he made endorsement Ex.PC/1. On police application Ex.PD, vide endorsement Ex.PD/1 he declared Bahla unfit to make statement on 6.7.1991 at 9.30 a.m. It is also in his statement that on police application Ex.PE, Dr. Tajinder Singh, D.F.P.O. directed him to conduct postmortem on the dead body of Bahla vide endorsement Ex.PE/1. He further stated that on 8.7.1991 at 8.15 a.m., he conducted post mortem on the dead body of Bahla son of Buta and observed the following injuries on the dead body of Bahla :

A stitched wound 2.5 cms x 0.5 cm on right parietal region 12 cms from right pinna. On dissection there was clotted blood under whole of scalp on right side extending upto right temporal region. Underlying the wound there was a comminuted fracture of right patietal bone. On further dissection there was a big clot in the cranial cavity. The brain matter was crushed and bone fragments were pressing upon the brain.

Blackish blue swelling below the right eye 5 cms x 3 cms.

In the opinion of this witness the cause of death in this case was due to shock and haemorrhage resulting from injury to vital organ i.e. brain and that the injuries were ante mortem in nature and sufficient to have caused death in an ordinary course of nature. The probable duration between injuries and death, according to this witness, was within 24 to 48 hours and between death and postmortem was within 12 to 24 hours. He also proved Ex.PF the carbon copy of the postmortem report.

Sunder Singh is a Draftsman, who prepared scaled site plan Ex.PG at the instance of Malooka on 8.9.1991. PW4Malooka stated that about 81/2 months back at about 8 p.m. Suba and Hadayat armed with Kirpan and Takua came to their house and they forced his sisterinlaw to open the outer gate of the house; that he and children were present in the house alongwith Sheela; that the accused tried to kill him and he ran away; that Sheela left the house with children and went to the house of Pannu; that he also reached there; that the accused kept sitting on the roof of their residential house for the whole night; that he reported the matter to the Panchayat and both the above mentioned accused were called by the Panchayat and reprimanded and that before the Panchayat the dispute was settled. He further stated that on the following day, he was coming from the shop of Swarna with bidies at about 3.30 p.m., that Buta, Hadayat armed with Takuas, Suba armed with Kirpan and Anayat armed with Dang came there; that Buta gave a Lalkara that Malooka was able to get away from the hands of his brothers and he won''t spare him on that day; that saying so Buta gave a Takua blow on his chest from its reverse side; that Anayat gave a Dang blow on his right hand; that he raised alarm; that his brothers Bahla and Pannu reached at the spot; that Bahla tried to save him; that Buta, accused gave a Takua blow on the head of Bahla; that Suba gave a Lalkara and asked his companions to kill Bahla and not to spare him; that thereafter Hadayat gave a Takua blow on the right eye of Bahla; that he and his sister''s son Pannu raised alarm and that the accused then left for their house with their weapons. He further stated that the accused used to do highhandedness after entering the house of his sisterinlaw Sheela; that they used to desist them from this activity and that is why accused gave them injuries. He further stated that Bahla was removed to their house and he was not taken to hospital nor did they move out from the house out of fear of the fire regarding which there were orders of the Government to paramilitary forces and army in their area, which is on IndoPakistan border. He further stated that Bahla was taken to hospital on the next day in the morning and he was got admitted there. He further stated that his statement Ex.PH was recorded and it was read over to him and he admitted the contents as correct, before he thumb marked it. He further stated that he also identified the dead body of his brother and attested the inquest report. During cross examination, he stated that Pannu had reached when Bahla was being given injuries. He has denied the suggestion that Bahla was given injuries by some unidentified persons in the darkness of night. He also denied the suggestion that they had doubt of illicit relation of Anayat and Suba with Sheela.

PW5Pannu has stated that about 10 months back at about 9.15 p.m., Suba and Hadayat came to the house of Sheela and asked her to open the door; that Malooka woke up and asked them as to why they had come; that Sheela and Malooka came to his house for safety; that on the next day the matter went to the Panchayat and Panchayat advised Hadayat and Suba. He further stated that on the next day at about 9 p.m., he had come from his house to the lane. He further stated that Bahla was brought to the hospital on the next day; that the doctor informed the police; that they came back to the hospital after the police came to the spot; that Bahla died on the next day; that Bahla was killed by the persons, whose names have been given above by Dangs and Takuas; that Anayat had a Dang, Hadayat had a Takua, Suba had a Kirpan and Buta was armed with a Takua; and that when he reached near the accused, they ran away with their respective weapons. At this stage a Court question was put to PW5 which reads as under :

Q: Did you or did you not see the accused giving injuries to Bahla ?

A: I saw them giving injuries.

He further stated that they did not reach the hospital at night time because of the presence of the Army. Even in the crossexamination, he has stated that he reached at the spot about 45 minutes after the occurrence. He further stated that in those days curfew was imposed in their village at 8/9 p.m.; that Army kept on moving in the village; that the occurrence took place when sun had set, but it was not completely dark; that persons could be visible at a distance of 4.5 karams and that there is no military hospital.

PW6 A.S.I. Sat Pal Singh stated that on 6.7.1991, he was posted in P.S. Sadar, Ferozepur; that on that day he received M.L.R of Bahla injured; that he alongwith police official went to the hospital and made police request Ex.PD to S.M.O. on which the doctor gave his opinion Ex.PD/1. He further stated that then he recorded the statement of Malook Singh Ex.PH; that he made his endorsement Ex.PH/1 and sent the name for the registration of the case; that Ex.PH/2 F.I.R. was recorded by S.I. Bhag Singh, whose signatures he identified. He further stated that he made police request Ex.PC to know about the nature of the injuries on the person of Bahla and vide endorsement Ex.PC/1, the doctor opined that injury No. 1 could be dangerous to life. He further stated that he made police request Ex.PN for conducting medical examination of Malooka; the Ex.PN/1 is the endorsement of the doctor; and that Doctor handed over to him the M.L.R. of Malooka. He further stated that he also recorded the statement of Pannu in the hospital and then he went to the spot alongwith Malooka and Pannu. He further stated that he inspected the spot, prepared the rough site planEx.PQ, and took into possession blood stained earth from the spot. He further stated that on 7.7.1991, he received information that Bahla had expired at 5.20 p.m., that he went to Civil Hospital and prepared the inquest report Ex.PJ; that he made police request Ex.PE for postmortem on the body of Bahla and handed over the police papers and dead body to constable Swaran Singh and PHG Surinder Pal and that after postmortem examination, constable Swaran Singh handed over the clothes of the deceased, which were taken into possession.

When examined under Section 313 Cr.P.C. all the accused controverted the prosecution allegations and pleaded false implication. They all added that they had been falsely involved because the complainant party suspected that accused Anayat and Suba had illicit relations with Sheela and that Bahla had been given injuries by some unknown persons.

Mr. Gulshan Sharma, Advocate for the appellants has contended that there has been delay in lodging the First Information Report. In this case, there are two injured persons, one of whom died as a result of injuries received at the hands of the assailants. The occurrence took place on 5.7.1991. The injured were removed to the hospital on 6.7.1991. The first natural attempt of the relatives of the deceased was to provide him medical treatment to save his life. The deceased was unconscious and not fit to make statement, when he reached the hospital and the case was registered on the statement of Malooka recorded on 6.7.1991. Malooka is the real brother of the deceased and he was sitting by the side of the deceased, who was unconscious, when the police reached there on getting information. The case under Sections 307/323/34 I.P.C. was registered. Bahla died on 7.7.1991 at 5.20 p.m. and till then he remained unconscious. It has come in the evidence that the village is situated on IndoPak border. The village population naturally lives under the fear of paramilitary forces deployed to look after law and order situation. Malooka put in his simple words that they did not move out of the house to take Bahla to hospital out of fear of fire regarding which there are orders of the Government to paramilitary forces and to the Army men. This shows that there is a deep impression on the residents of the village on the border that if at night, they would move out of their houses, they would be fired at and killed by the paramilitary forces and the Army. The explanation of Malooka about reaching the hospital on the following day and the consequential delay in lodging the report is thus satisfactorily explained and the prosecution case cannot be doubted on this count alone.

Learned counsel for the appellants has further contended that the witnesses examined by the prosecution are closely related to the deceased as Malooka is brother of the deceased, whereas Pannu is sister''s son of the deceased. There is no denying the fact that both these witnesses are related to the deceased, but their presence at the spot is natural. Malooka was the target of the accused party, but he had fortunately escaped. On 4.7.1991, he was attacked by the accused party. He and Sheela went to the house of Pannu and spent a night there before the occurrence. The evidence of these eye witnesses cannot be rejected on the ground that these witnesses are related to the deceased. In a case of the nature in hand, the evidence of the witnesses have to be scrutinised carefully and approach of the Court should be based on sense of reality with all awareness of life in its ordinary quality and not from unrealistic angle. The credit of the witnesses could not be shaken despite questions put to them in the crossexamination. The criticism that Swarna, whose presence at the spot is admitted, was not examined is immaterial in view of the established proposition of law that nonexamination of a witness, when evidence of other witnesses is credible and enough to make out a case is of no consequence.

Mr. Gulshan Sharma, Advocate has further contended that Suba, appellant who is alleged to be armed with a Kirpan has not inflicted any injury on the person of the deceased or Malook Singh, PW. He further contended that only allegation against Suba, appellant is that he exhorted Hadayat to kill the deceased and then Hadayat gave a Takua blow to the deceased from its reverse side on his forehead above right eye. He has contended that the evidence of exhortation is, in the nature of things, a weak piece of evidence. There is quite often tendency to implicate some person, in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim. In support of his argument, he has relied upon State of Punjab v. Tehal Singh and Others, 1992(2) Recent Criminal Reports 184 . Learned counsel for the appellants had further contended that in this part of the country, there is a tendency to implicate all the adult members of the family of the accused party in the crime. In this case Buta Singh and his three brothers, all adult members of the family of Kalu have been implicated. According to the prosecution case, Anayat, appellant is alleged to have given a Dang blow on the index finger of Malook Singh, PW. Learned counsel has further contended that this injury on the person of Malook Singh can be caused by a Takua also, in case the Takua blow is used from the reverse side, therefore, the possibility of false implication of Anayat in this case cannot be ruled out. Learned counsel for the appellant has further contended that no offence under Section 302 I.P.C. is made out against Buta Singh, appellant because Buta Singh has given one blow with a Takua on the head of the deceased and he has not repeated the Takua blows. The learned counsel contended that at the most, an offence under Section 304 Part II IPC shall be made out against Buta Singh even according to the prosecution case.

Mr. S.S. Dhaliwal, Deputy Advocate General, Punjab has contented that injury No. 1 on the person of the deceased was sufficient to cause death in the ordinary course of nature and death in this case was due to shock and haemorrhage, resulting from injury to vital organ brain. Mr. Dhaliwal has further contended that Hadayat also gave Takua blow to the deceased, which hit from its reverse side on his forehead above his right eye. He contended that offence under Section 302 I.P.C. is made out against Buta Singh, appellant and offence under Section 302 read with Section 34 I.P.C. is made out against Hadayatappellant.

After hearing the learned counsel for the parties at length, we hold that the evidence of exhortation is, in the nature of things, a weak piece of evidence. There is quite often tendency to implicate some persons, in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim. The evidence adduced at the trial in respect of the part alleged to have been played by Suba, appellant is far from convincing. When the prosecution are unable to prove satisfactorily the intention or knowledge of an accused person, then prosecution generally ascribe to him certain words which he is supposed to have spoken in order to supply the missing proof. This method is more often adopted in cases in which a certain person is sought to be punished for the constructive liability as regards the commission of crime of violence. It is highly unlikely that the accused would be so foolish as to proclaim his intentions before committing the attack, as by doing so he was sure to be thwarted by the persons present. Though, Suba, appellant is alleged to be armed with a Kirpan, but he has not caused any injury. The prosecution evidence regarding Subaappellant is not convincing. Hence, appeal filed by Suba is allowed. His conviction and sentence are set aside.

Anayatappellant is alleged to have given a Dang blow on the index finger of right land of Malook, PW. This injury on the person of Malook, PW can be caused a Takua also, if it is used from the reverse side. In this case Takua blow has been used from the reverse side, therefore, the possibility of false implication of Anayatappellant cannot be ruled out and as a matter of abundant caution, he is given benefit of doubt and he is acquitted of the charges. His conviction and sentence are set aside.

Dr. Jajbir Singh SandhuPW2 has stated that the cause of death in this case was due to shock and haemorrhage, resulting from injury to vital organ brain and that the injuries were antemortem and sufficient to cause death in the ordinary course of nature. Buta gave a Takua blow on the head of the deceased. Second blow on the person of the deceased was given by Hadayat with a Takua from its reverse side, which hit on the forehead above right eye of the deceased. Thereafter, the trial Court has rightly convicted Buta Singh and Hadayat, appellants under Section 302 read with Section 34 I.P.C.

In view of the above discussion, the appeal filed by Buta and Hadayat, appellants is partly allowed and their conviction and sentence under Sections 302/34 IPC are maintained while their conviction and sentence under Sections 323/34 I.P.C. are set aside.

The appeal filed by Suba and Anayat is allowed.